Wednesday, June 6, 2012
Formative Assessment: Does Probation Constitute "Confinement," & How Much Balancing Is Required Under Rule 609(b)?
Federal Rule of Evidence 609(b) provides that
This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
So, does probation count as "confinement" for Rule 609(b) purposes? Courts are split on the issue. So, what did the Middle District of Pennsylvania find in its recent opinion in Wink v. Ott, 2012 WL 1979461 (M.D.Pa. 2012)?
In Ott, Jeffrey Wink, a trim carpenter, brought an action against his former employer, claiming that it failed to compensate him for 2,035 hours of drive time at $24.38 an hour ($49,613). Before trial, Wink brought a motion in limine seeking to preclude his employer from impeaching him through evidence of his conviction for the crime of providing false reports to law enforcement authorities on June 2, 2000. That conviction was more than 10 years old based on the date of conviction, but Wink was on probation for the crime until June 13, 2012, which would have made the conviction slightly less than 10 years old if probation constitutes "confinement" for Rule 609(b) purposes. So, does it?
Courts are split on the issue. In United State v. Gaines, 105 Fed.Appx. 682 (6th Cir. 2004), the Sixth Circuit found that the question under Rule 609(b) is whether "less than ten years had passed since the witness was released from confinement or the period of his parole or probation had expired." Most courts, however, have found that a period of parole or probation does not constitute "confinement," including the Seventh Circuit in United States v. Rogers, 542 F.3d 197 (7th Cir. 2008).
In Ott, the Middle District of Pennsylvania agreed with the majority approach, finding that "[i]n calculating the ten-year period, "release from confinement" does "not include any period of probation or parole."
This meant that the conviction could only be admissible if "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect..." More specifically, as noted by the Advisory Committee,
The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact.
So, what did the court do? Here's the relevant portion of the opinion:
The Court recognizes the age of Plaintiff's conviction and the fact that it occurred during Plaintiff's formative years. Nevertheless, as noted above, Plaintiff's credibility is of paramount importance to this action. Because the crime of providing false reports to law enforcement authorities bears directly on Plaintiff's credibility, the Court finds that the probative value of the conviction substantially outweighs its prejudicial effect. Further, the Court finds that Defendants provided sufficient notice of their intent to use the conviction. Therefore, the Court will deny Plaintiff's third motion in limine and permit Plaintiff's conviction to be admitted for the purpose of impeachment. See United States v. Rankin, No. 05–cr–615, 2007 WL 1181022, at *3–*4 (E.D.Pa. Apr. 18, 2007) (finding that a defendant's conviction for making false statements in an affidavit, which was more than ten years old, was admissible under Rule 609(b) because the conviction "could not be more relevant to the issue of [the defendant's] credibility").
Was this good enough? I see one brief sentence on prejudicial effect and two brief sentences on probative value, with all of the sentences being rather conclusory. And what does the court mean by saying that the conviction was during the plaintiff's formative years? Was this a juvenile adjudication, triggering the protections of Federal Rule of Evidence 609(d)? Or was it a conviction from his early 20s? I don't think that the court did enough on-the-record balancing in Ott and that the court's decision in appealable should nothing else be written on the subject.