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Univ. of South Carolina School of Law

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Monday, March 26, 2012

10 Years Have Got Behind You: Supreme Court Of Georgia Discusses Different Tests For Remote Conviction Impeachment

Similar to its federal counterpartOCGA § 24–9–84.1(b) provides that

Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old, as calculated in this subsection, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, it is very difficult for a party to impeach a witness through evidence of a conviction "if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness or the defendant from the confinement imposed for that conviction, whichever is the later date..." The front end of OCGA § 24–9–84.1(b) is thus easy to calculate. If Witness was convicted on 3/26/2010 and released from incarceration on 3/26/2012, the starting date for OCGA § 24–9–84.1(b) would be 3/26/2012 because the date of release would be the later of the two dates. And if Witness was subjected to pre-trial detention from 8/26/2010 through 2/26/2010 and then convicted on 3/26/2010 and sentenced to time served, the starting date for OCGA § 24–9–84.1(b) would be 3/26/2010 because the date of conviction would be the later of the two dates. But what about the back end? For OCGA § 24–9–84.1(b) or federal counterpart to apply, more than ten years need to elapse beteen the starting date of conviction and...what end date? That was the question of first impression taken up by the Supreme Court of Georgia in its recent opinion in Clay v. State, 2012 WL 933080 (Ga. 2012)

In Clay, David Clay was convicted of malice murder and false imprisonment in connection with the death of Janice Swain in the early morning hours of March 4, 2007. After Clay was convicted, he appealed, claiming, inter alia, that the trial court erred by permitting the prosecution to impeach him through evidence of his 1997 aggravated assault conviction, his 1998 aggravated assault conviction, and his 1998 terroristic threats conviction.

According to Clay, each of these convictions was more than ten years old under OCGA § 24–9–84.1(b), meaning that the trial court needed to explicitly find that the probative value of these convictions supported by specific facts and circumstances substantially outweigh their prejudicial effect. To answer this question, the Supreme Court of Georgia first had to determine whether these convictions were more than ten years old.

And, according to the court, 

At least four different end points have been identified by various jurisdictions. See United States v. Cohen, 544 F.2d 781, 784 (5th Cir.1977) (identifying the date trial commenced as the end date); United States v. Coleman, 11 F.Supp.2d 689, 692 (W.D.Va.1998) (identifying the date the witness testified as the end date); Minnesota v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998) (identifying the date of the new charged offense as the end date);United States v. Maichle, 861 F.2d 178, 181 (8th Cir.1988) (identifying the date of the defendant's indictment as the end date).

The State claimed that Ihnot should apply and that the end date should be the date of the new charged offense. The Supreme Court of Georgia disagreed for a few reasons:

1. First, the State claimed that Ihnot correctly "observed that both the trial date and the date of testimony may be manipulated to allow the ten-year time limit to expire," meaning that neither of them should establish the end date. The Georgia Supremes disagreed, finding that "a trial court may consider circumstances that are relevant to the reason why the defendant's case did not come to trial within the ten-year limit. Thus, dilatory tactics are not likely to be successful in preventing the introduction of prior conviction evidence that possesses significant probative value."

2. Second, the Supreme Court of Georgia "disagree[d] with the Ihnot court that using the trial date or the date of testimony has no policy justification....Clearly, the purpose of OCGA § 24–9–84.1 is to properly balance the probativeness against the prejudicial effect of a witness' prior conviction on the issue of that witness' credibility. Therefore, in selecting an end date, "'the time of testimony is most appropriate since the jury must determine credibility at that moment.'"

3. Third, the Georgia Supremes disagreed with the Ihnot court's reasoning that "'[i]f prior convictions lose their probative value for impeachment purposes because of ten years of "good behavior," that is the period we should measure—the period of unquestioned good behavior.'" According to the court, "In Ihnot, as here, the person sought to be impeached was the defendant. Under those circumstances, 'the reasoning that the good behavior of a person with a prior conviction ends on the date of the charged offense...implies that the defendant is guilty of the charged offense before he or she has been so found,' a reasoning that we reject....We find it more desirable that, instead, a trial court consider whether a defendant has been incarcerated for an extended period of time awaiting trial and any other relevant circumstances that may have prevented the defendant's case from coming to trial within the ten-year time limit." 

Moreover, the court concluded that "subsection (b) makes no distinction between a defendant and a non-party witness and applies to both civil and criminal cases. '[T]here is no basis in logic or policy for using the date of a charged criminal offense as the endpoint for a witness other than [a] criminal defendant.'"

Accordingly, the Supreme Court of Georgia concluded that the convictions were more than ten years old and remanded for an explicit balancing of probative value and prejudicial effect.

-CM

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