Tuesday, April 10, 2012
Make Me Whole, Take 7: Court Of Appeals Of MN Finds No Problem W/Impeachment Through 2 Assault Convictions In Assault Case
Following up on yesterday's post about the admissibility of prior conivctions for sex crimes for impeachment purposes, I give you another in a long line of ridiculous impeachment cases from the great state of Minnesota: State v. Gardner, 2012 WL 1149325 (Minn.App. 2012)
In Gardner, Pierre Garnder was charged with 2nd and 3rd degree assault. At trial, Gardner testified in is own defense, and the trial court allowed the prosecution to impeach him with evidence of (1) a 2008 conviction for felony domestic assault by strangulation; and (2) a 2008 conviction for felony fifth-degree assault.
After he was convicted, Gardner appealed, claiming, inter alia, tha the trial court erred by deeming evidence of the convictions admissible under Minnesota Rule of Evidence 609(a), which provides that
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.
I've written about the test that Minnesota applies under Rule of Evidence 609(a) on six previous occasions (here, here, here, here, here, and here) and promised to continue writing about it until Minnesota abandons it. Like most jurisdictions, Minnesota applies a 5 factor test for determining the admissibility of convictions under Rule 609(a) that balances
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.
The devil, though, is in the details. Under the first factor, a court in any other state would actually consider how much bearing Gardner's two prior convictions had on his (dis)honesty as a witness. And a court in any other state would find that because these two prior convictions were for crimes of violence, they have little bearing on witness credibility, making the first factor favor exclusion. Minnesota courts, however, apply a "whole person" test under which any prior conviction is always viewed as having enough "impeachment" value to pass this first factor because it allows the jury sees the witness' "whole person" and thus better assess his credibility.
In a prior post, I noted how a judge on the Court of Appeals challenged this "whole person" test in a prior case. In Gardner, the court rolled over and played dead, finding that despite criticisms of he test, it was created by the Supreme Court of Minnesota and that "[i]t is not this court's role to review supreme court decisions."
The court then correctly found that the second factor favored admission because the other convictions were relatively recent and that the third factor cut against admission because of the likelihood that the jury would (mis)use the prior convictions to conclude, "Once an assailant, always an assailant" (or, really, "Twice and assailant, always an assailant.")
That then took the court to the fourth and fifth factors, which it bungled once again. According to the court, under the fourth factor,
If a defendant's version of the relevant events is important to the jury's verdict, the importance of the defendant's testimony weighs in favor of excluding the impeachment evidence if, "by admitting it, appellant's account of events would not be heard by the jury."
But, according to the court, If "the defendant's credibility would have been the main issue for the jury to consider, this would weigh in favor of admitting the impeachment evidence," making both the fourth and fifth factors favor admission. Nope. That's not even close to correct.
Instead, these factors are supposed to counterbalance in most cases. See, e.g., United States v. Brewer, 451 F.Supp. 50, 54 (E.D.Tenn. 1978). If the defendant's testimony is very important the fourth factor cuts against admissibility of the defendant's prior conviction because the defendant might choose not to testify in the event that the prosecution could impeach him. But because his testimony is important, his credibility is also a central issue, meaning that the fifth factor favors admission. Thus, the 2 factors should counterbalance. It makes logical sense. But under Minnesota law, when a defendant's credibility is the main issue (which is almost always the case), factors four and five automatically favor admission.
Hopefully, you see the problem. In a criminal case in Minnesota, factor one will always favor admission of a defendant's prior convictions while factors four and five will almost always favor admission. That's usually three automatic strikes against the defendant in a five factor test. He can't win, and Gardner didn't win, with the Court of Appeals of Minnesota rejecting his appeal. That's right, according to the court, the probative value of his two prior assault convictions for proving his propensity to lie outweighed the danger that the jury would misuse the convictions to prove, "Once, twice, three times, an assailant." When will Minnesota courts end the insanity?