Tuesday, May 22, 2012
Make Me Whole, Take 8: Court Of Appeals Of Minnesota Yet Again Badly Botches The Felony Impeachment Analysis
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 on seven previous occasions about how Minnesota courts continually bungle the Rule 609(a) analysis (here, here, here, here, here, here, and here), and the recent opinion of the Court of Appeals of Minnesota in State v. McNeal, 2012 WL 1658819 (Minn.App. 2012), is the latest entry into the state's hall of shame.
In McNeal, Mardi McNeal was charged with third-degree criminal sexual conduct. At trial, after McNeal testified, the court allowed the prosecution to impeach him with evidence of his November 2001 conviction for first-degree aggravated robbery. This led the Court of Appeals of Minnesota to apply the five factor test that most courts apply which considers:
(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; (4) the importance of defendant's testimony; and (5) the centrality of the credibility issue.
Under the first factor, a court in any other state would have found that the aggravated robbery conviction had little impeachment value because it was a conviction for a crime of violence. But the Court of Appeals of Minnesota instead applied Minnesota's whole-person rationale, under which every prior conviction has sufficient impeachment value to tilt the first factor in favor of admission because every conviction allows the jury to see the whole person before it on the witness stand. As usual, the court gave a perfunctory shout out to the "widespread criticism of the whole-person rationale" before yet again applying it.
Under the second factor, McNeal's prior conviction was about seven years old because his present trial was in 2008. Again, almost any other court would have found that a seven year-old conviction was sufficiently remote to have this factor weigh against admissibility (or at least make this factor neutral. But the Court of Appeals of Minnesota instead found that "[b]ecause the prior offense was within the 10–year period recognized under the rule, the prior offense was timely, and this factor weighs in favor of admission."
In doing so, the court yet again displayed a fundamental misunderstanding of the interplay between Minnesota Rule of Evidence 609(a) and Minnesota Rule of Evidence 609(b). The latter rule deems evidence of convictions that are more than ten years old almost never admissible to impeach the credibility of a witness. This does not mean, however, that once that ten year threshold is crossed, a conviction is suddenly timely, making the second factor favor admissibility. Instead, seven years is plenty of time for a defendant to become rehabilitated, and the man that a defendant was seven years ago tells us little about the man that he is today. Again, the Court of Appeals of Minnesota missed the mark.
The court was correct, though, that aggravated battery and criminal sexual conduct are not at all similar conduct, meaning that the third factor favored admission. But again, the court badly botched analysis of the fourth and fifth factors. The traditional thinking under the fourth factor is that evidence of a defendant's prior conviction becomes more prejudicial as his testimony becomes more important. The worry here is that if the court deems evidence of the conviction admissible, the defendant won't testify and won't be able to defend himself. Of course, that means that the typical thinking is that evidence of a defendant's prior conviction becomes more probative as his testimony becomes more central to the resolution of the case. This is because jurors need to be able to assess the trustworthiness of the defendant on the witness stand.
What this means, is that the correct analysis in the vast majority of cases (because a defendant's testimony will almost always be important and his credibility will almost always be central) is that the fourth and fifth factors counterbalance, with the fourth factor favoring exclusion and the fifth factor favoring admission. But, according to the Court of Appeals of Minnesota, "If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions."
So, breaking down the court's analysis, in Minnesota, factor one will always favor admission, factor two will ostensibly always favor admission if the prior conviction is 10 or less years old, and factors four and five will always favor admission as long as the defendant's testimony is important and his credibility is central to the resolution of cases. In other words, in nearly all cases, a defendant in Minnesota will not be able to preclude the prosecution from impeaching him with evidence of a prior conviction.