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Univ. of South Carolina School of Law

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Monday, August 6, 2012

Make Me Whole, Take 9: Court Of Appeals Of Minnesota Engages In Worst Rule 609 Analysis Yet

Following up on my eight previous posts (hereherehereherehereherehere, and here) on the subject, I regret that I have to report on yet another miscarriage of justice in Minnesota. Yet again, this injustice has occurred because of the nonsensical application of Minnesota Rule of Evidence 609 by the Minnesota courts. So, let's check out State v. Scott, 2012 WL 3085556 (Minn.App. 2012), which constitutes possibly the worst (mis)application of Rule 609 that I have ever seen.

In Scott, Luke Scott was charged with assault in the first degree, assault in the second degree, terroristic threats, and false imprisonment, with only Scott and his victim being present during the "crucial part" of the evening in question. After he was convicted, Scott appealed, claiming, inter alia, that the district court abused its discretion by admitting evidence of his prior assault conviction.

The Court of Appeals of Minnesota noted that the issue was governed by Minnesota Rule of Evidence 609(a)(1), 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....

The court then noted that it considers five factors in balancing probative value and prejudicial effect:

(1) [T]he 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.

Let's start with factors two and three. Under the second factor, Scott was originally sentenced for his prior assault conviction in January 2000 and then resentenced in September 2006. The opinion doesn't tell us what happened in 2006, but it is clear that Scott's prior assault was committed before 2000, making the crime very remote and not very probative of his current honesty as a witness. Indeed, the Court of Appeals of Minnesota acknowledged as much, finding that "because it is an older conviction, the age of the conviction weighs against its admission."

Meanwhile, under the third factor, Scott's prior conviction was for assault, and he was facing two counts of assault at trial. The court could thus easily conclude that "[e]ven though there were other crimes charged in addition to the first- and second-degree assault charges, it appears that the similarity of the prior assault conviction weighs heavily against its admission here."

So, the second and third factors weighed heavily against admission. Now, here is what any logical court would have said with regard to factors one, four, and five. Under factor one, assault is a crime of violence, which tells us a good deal about whether a person is aggressive but almost nothing about whether he is honest, making factor one weigh heavily against admission. 

Under factor four, Scott's testimony was critically important to trial as only he and the victim were present for the alleged crimes. If Scott's prior conviction were deemed admissible in the event he testified, he might very well refuse to testify and deprive the jury of critical information. Thus, factor four weighs heavily against admission. But what this means is that factor five weighs heavily in favor of admission because Scott's credibility was central to the resolution of the case and impeachment evidence would allow jurors to call into question Scott's credibility.

So, a logical court would have concluded that four factors strongly favored exclusion while only one factor favored admission and thus found that Scott's prior assault conviction should have been deemed inadmissible. But the Court of Appeals of Minnesota is not a logical court.

First, here is its analysis of the first factor:

Appellant argues that his prior conviction has nothing to do with his credibility. The Minnesota Supreme Court has held that, even though a prior conviction is unrelated to a defendant's veracity, it can still have impeachment value. Brouillette, 286 N.W.2d at 707. In Brouillette, the defendant argued that his prior conviction for criminal sexual conduct was unrelated to his credibility. Id. The court stated that rule 609 "clearly sanctions the use of felonies which are not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility." Id. at 708.

Similarly here, appellant's prior conviction could give the jury a view of his whole person and help the jury to determine whether his testimony was credible. The impeachment value of the prior conviction, in showing the jury the "whole person" of appellant, appears to weigh in favor of its admission.

Nonsense! The court can't really believe the above gibbersh, can it? And if it did, wouldn't that mean that Minnesota courts should admit character evidence, which would also show the jury the "whole person" of the appellant? The court's "analysis" is both nonsensical and inconsistent with other rules of evidence such as the character evidence rules. Also, even if we buy that the "whole person" theory means that an assault conviction has some bearing on the honesty of a defendant as witness, surely that bearing is pretty low, meaning that the first factor very weakly favors admissions.

Second, here is its analysis of factors four and five:

"If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions." Swanson, 707 N.W.2d at 655. "Appellant's version of the facts may be centrally important to the result reached by the jury. If so, this fact would support exclusion of the impeachment evidence if by admitting it, appellant's account of events would not be heard by the jury." Gassler, 505 N.W.2d at 67. "[I]f the defendant's credibility is the central issue in the case that is, if the issue for the jury narrows to a choice between defendant's credibility and that of one other person then...the need for the evidence is greater."

Again, this is nonsense. In basically any criminal trial, the defendant's credibility is going to be a central issue. Think about it. The defendant in any criminal trial involving acts of violence will either be claiming (1) it wasn't me; (2) it was me, but I have some defense (e.g., I was acting in self-defense); or (3) it was me, but it was not as bad as the prosecution claims. In any of these cases, the defendant's credibility is going to be centrally important. And what that means is that in Minnesota, factors four and five are basically always going to favor admission.

And, of course, under Minnesota law, factor one is always going to favor admission. So, three factors will always favor admission, and a defendant will never be able to have a conviction exclusion...even an extremely old and extremely prejudicial conviction like the one in Scott.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/08/mn-609-state-v-scottnot-reported-in-nw2d-2012-wl-3085556minnapp2012.html

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Comments

I used to prosecute people in the 1970's, before there was a link between the prior conviction and veracity. I thought then, and still think, that the prior conviction has probative value, regardless of its relation to veracity, because the defendant knows that,as someone with a criminal past, the punishment upon conviction will be worse than it would be without the past history, and the defendant therefore has a greater motivation to lie. Furthermore, with larceny convictions being admissible to show "dishonesty" though really more probative of poverty or a desire for ill-gotten gains, there are enough rationales out there to get around any strong intellectual requirement to link veracity to the prior convictions.

Posted by: Greg Jones | Aug 9, 2012 8:23:35 AM

Regarding the first factor, it is important to remember that 609 replaces the old common law rule that disqualified a convicted felon from even taking the stand. Thus, 609 substituted a balancing test for admissibility of the conviction (for other than a crime involving dishonesty or false statement) for a blanket witness disqualification rule. Instead of declaring the witness a liar by nature due to the felony conviction and, as a consequence, not permitting him to testify at all, the modern rule directs courts to consider just how probative of character for truthfulness a given conviction may be. The fact that a conviction for a crime with a punishment in excess of one year is subject to the balancing test indicates that the legislature believed that all felony convictions have some probative value for character for truthfulness. Crimes of violence, like assault, are on the very low end of the relative probative value scale, while crimes of larceny and theft may be more probative of character for truthfulness but not sufficien to fall within the 609(a)(2) category of admissibility without balancing probative value and prejudicial effect. The balancing test is designed to determine just how the scales of probative value and prejudicial effect should come to rest in a given situation. Sadly, the Minnessota court, just like most law students exponsed to this rule for the first time, doesn't seem to understand this point. I'll tell my students that they are in good company when they confuse this point. Of course, like the Minnesota court, they will still be wrong.

Posted by: W A Woodruff | Aug 9, 2012 6:49:15 PM

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