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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?
October 10, 2012 | Permalink
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Did the trial (or appellate) court ever specify what the "unfair prejudice" would be if the impeachment were allowed?
Posted by: BellinJ | Oct 11, 2012 5:03:44 AM
No, it doesn't appear that either court made specific reference to the unfair prejudice.
Posted by: Colin Miller | Oct 11, 2012 5:53:56 AM
What about the the probative value of the conviction in explaining the sentence the witness was facing in the absence of his cooperation? It is too bad the probationary status argument wasn't better preserved, because it gets at the same issue. In light of the lack-of-intent defense though, it is a hard row to hoe.
Posted by: AKevin | Oct 11, 2012 7:32:28 AM
It is certainly not so obvious that it need not be specified, and I can't even think of an articulation of what it might be that would not track pretty closely to the legally-endorsed theory of prior conviction impeachment. Hard to see how the unfair prejudice substantially outweighs the probative value if we aren't even told what the unfair prejudice might be.
Posted by: BellinJ | Oct 11, 2012 8:58:50 AM
So does the same logic apply if the conviction belongs to the defendant? Not in New York, that's for sure:
People v. Comfort (Sullivan County Ct. 2003)
"A person ruthless enough to attempt forcible rape and sexual abuse may well disregard an oath and resort to perjury if he perceives that to be in his self-interest."
Is it fair that a prosecution might rest on the testimony on the theoretical "Worst Person in the World" while at the same time preventing the defense from establishing that very fact?
Posted by: Joe Heinzmann | Oct 12, 2012 11:44:57 AM