Wednesday, October 10, 2012
I Can See Clearly Now: 8th Circuit Finds District Court Properly Precluded Sexual Misconduct Conviction Under Rule 609
Federal Rule of Evidence 609(a)(1)(A) provides that
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) 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....
So let's say that a district court precludes a defendant charged with wire and mail fraud from impeaching a key witness for the prosecution with evidence of an eight year-old conviction for felony sexual misconduct. If the defendant is able to impeach the witness with other evidence, was the district court's opinion proper? According to the Eighth Circuit's recent opinion in United States v. Chaika, 2012 WL 4476680 (8th Cir. 2012). I mostly agree but have one major reservation.In Chaika, the facts were as stated above, with the witness for the prosecution being Dustin LaFarve and the district court concluding that
With respect to Mr. LaFavre, I'm going to also not let that sexual conduct conviction come in. I think that it is highly prejudicial. I think that under [Rule] 403 [of the Federal Rules of Evidence] its prejudicial effect clearly outweighs its usefulness. I think, as the Government has pointed out, you have plenty of ammunition, so to speak, to deal with Mr. LaFavre. He has pled guilty here. He has an agreement with the Government which he's going to hope by his testimony and cooperation will reduce his sentence. And clearly that can be brought to the jury's attention in some detail.
In addressing the defendant's ensuing appeal, the EIghth Circuit started by noting that
In considering whether to admit evidence of a prior conviction to impeach a witness, "[t]he weighing of probative value against prejudicial effect is committed to the sound discretion of the trial court."...In criminal cases, decisions from other circuits have upheld exclusion of a government witness's prior conviction for sexual assault or rape if the district court conducted a proper Rule 403 analysis and concluded that impeachment with the prior sexual offense would be unfairly prejudicial, the offense had minimal relevance to the witness's honesty, and the defendant had ample other bases to challenge the witness's truthfulness.
Applying this analysis, the court then concluded that
Here, the district court carefully balanced probative value and the risk of unfair prejudice in exercising its Rule 403 discretion. While LaFavre was a key government witness, his prior sexual offense was unrelated to the mortgage fraud at issue and did not require proof of "a dishonest act or false statement."...As the district court noted in its pretrial ruling, to the extent LaFavre's truthfulness would be a trial issue, the ability to impeach him with his guilty plea, promise to cooperate, and hoped-for leniency was far more potent "ammunition."
As I noted in the introduction, I mostly agree with the Eighth Circuit but have one major reservation. And that reservation is that the district court did not find, as required by Federal Rule of Evidence 403 that the probative value of LaFarve's conviction was substantially outweighed by the defendant. Instead, the court merely found that "its prejudicial effect clearly outweighs its usefulness." Clearly≠substantially, and usefulness≠probative value. I have no problem with appellate courts defering to trial courts on Rule 609 rulings. But couldn't trial courts at least get the Rule 609 parlance correctly?