Friday, August 31, 2012
Make Me Whole, Take 10: Court Of Appeals of Minnesota Issues Most Ludicrous Rule 609(a)(1) Ruling Yet
Another day. Another terrible decision by the Court of Appeals of Minnesota under Minnesota Rule of Evidence 609(a)(1). The court's most recent exercise in lunacy is State v. Heard, 2012 WL 3263775 (Minn.App. 2012). If I am reading this most recent opinion correctly, there is (almost) no set of facts under which any of the five factors considered under Rule 609(a)(1) will favor the defendant. So, congratulations, Court of Appeals of Minnesota. You have finally suceeded in making Rule 609(a)(1) a complete mockery of itself.In Heard, Carlos Heard was convicted of first-degree murder and second-degree murder. He thereafter appealed, claiming that the trial court erred by allowing the prosecution to impeach him through his prior conviction for manslaughter. In addressing this issue, as always, the Court of Appeals of Minnesota noted that it considers five factors:
(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.
And, as always, the court found that the first factor automatically favors admissibility because every conviction allows the jury to see the "whole person" of the defendant even if the conviction is for a crime of violence that tells us nothing about the defendant's honesty as a witness. Moreover, as always, the court found that, as long as the defendant's testimony is important (and when is it not?), his credibility is central to the outcome at trial, meaning that the fourth and fifth factors favor admission.
That takes us to the second factor. Under this factor, Heard (1) committed the prior manslaughter in 1992, (2) was released from confinement for his manslaughter conviction in 1995, (3) allegedly committed the murders in 2005 (apparently slightly less than 10 years' later), and stood trial in 2010. So, for Rule 609(a)(1)/Rule 609(b) purposes, the conviction was slightly less than 10 years old, and, in actuality, the conviction was 18 years' old. In other words, the conviction was about as old as you are going to get under Rule 609(a)(1), and, if it were any older, it would have been covered by Rule 609(b) and its more stringent balancing test. So, the second factor clearly favored Heard, right? Wrong.
According to the court, "Given that appellant's prior conviction was nearly ten years old, if not more than ten years old, we conclude that this factor was neutral or favored appellant." Yes, that's right. Even for the remotest of remote convictions under Rule 609(a)(1), the Court of Appeals of Minnesota could not clearly say that the second factor favored admission.
But what about the third factor? Clearly, this factor favored Heard because of the similarity between manslaughter and murder and the likelihood that the jury would misuse the prior conviction as propensity character evidence, right? Wrong again. Yes, the Court of Appeals of Minnesota did recognize that "[g]iven the similarity of appellant's manslaughter conviction to the charges at issue, there was a risk that the jury misused the evidence of appellant's prior conviction as substantive evidence." But then the court found that
Here, the district court gave the jury a cautionary instruction to use evidence of appellant's prior conviction only when considering appellant's testimony and not as evidence of guilt. The district court's instruction to the jury protected appellant from the possibility that the jury used his past conviction as substantive, rather than impeachment, evidence, and this factor therefore weighed in favor of admissibility.
Seriously? This is the type of instruction that is typically given in Rule 609 cases. It is simply a garden variety limiting instruction telling jurors how they cannot use evidence. If such an instruction makes the third factor favor admission, that means that the third factor will (almost) always favor admission.
So, to summarize, as long as the defendant's testimony is important (nearly always), as long as his conviction is less than ten years' old (always), and as long as the court gives a limiting instruction (almost always) four of the five factors under Rule 609(a)(1) will favor admission. And even if the conviction is 9+ years old in legal years and 10+, 15+, or even 18+ years old in real years, the other factor merely might favor admission but also might be neutral. Ridiculous!