EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, May 5, 2012

Getting Exposed: Northern District Of Oklahoma Deems Public Exposure Conviction Inadmissible In Arson Trial

Federal Rule of Evidence 609(a)(1)(A) provides that

for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

In turn, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, let's say that a defendant is charged with arson and that a witness for the prosecution testifies against him. But let's say that this is no ordinary witness for the prosecution. Instead, let's say that the defendant labels the witness as an alternate suspect with an obvious motive to pin the crime on the defendant. If that witness has a prior conviction for felony indecent exposure, should the defendant be able to use that conviction to impeach him? According to the recent opinion of the United States District Court for the Northern District of Oklahoma in United States v. Perryman, 2012 WL 1536745 (N.D.Okla. 2012), the answer is "no." I'm not sure that I agree.

In Perryman, the facts were as stated above. Specifically, the defendant claimed that the witness had an altercation with him shortly prior to the arson, was heard making threats against him, and made a series of potentially incriminating statements to arson investigators. Accordingly, in seeking to impeach the witness, the defendant claimed that the witness was "not merely an ordinary witness in this case," but instead that his "credibility [wa]s paramount."

The court disagreed, finding that

a prior conviction for indecent exposure has very little, if any, probative value as to an individual's credibility. However, there is a substantial danger of unfair prejudice because the jury may improperly presume that [the witness] is a morally culpable individual or that he has a propensity to commit crimes. The fact that [the witness] may be an important witness and that his credibility may be crucial to defendant's case does not make a conviction for indecent exposure any more probative of that credibility.

Huh? I will admit that an indecent exposure conviction has very little bearing on witness credibility, but I would also argue that it has very little bearing on whether the witness committed arson. Rule 403 deems evidence admissible as long as its probative value is not substantially outweighed by the danger of unfair prejudice. This means that the court should have deemed the conviction admissible unless it found that its bearing on witness credibility was substantially outweighed by the danger that the jury would use the evidence to assume that the witness committed the arson. To me, that seems like a slam dunk for admissibility, or at least a layup.

Of course, in a typical Rule 609(a)(1)(A) case, the court considers 5 factors: (1) how much bearing the prior conviction has on witness honesty; (2) the remoteness of the prior conviction; (3) the similarity between the past conviction and the present crime; (4) the importance of the witness' testimony; and (5) the centrality of the credibility issue. In Perryman, the defendant claimed that this 5th factor should be dispositive. The court, though, found that this test deals "with the admissibility of a defendant'stestimony under Rule 609(a)(1)(B)not with the admissibility of a witness' testimony under Rule 609(a)(1)(A)." Thus, the court found that this test had "no relevance to whether [the] prior conviction [wa]s admissible."

Really? Basically every other opinion I have seen on the issue holds that the 5 factor test minus the 4th factor (which deals with whether a defendant will choose not to testify) applies to other witnesses. And even if the court chose not to apply this test, how can it say that the centrality of a witness' credibility is not an important factor in deciding the admissibility of his prior convictions? According to the court, it is no more important for a defendant to impeach the prosecution's one eyewitness than it is for him to impeach a character witness with no knowledge of the crime charged. That simply makes no sense.



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