Wednesday, August 28, 2013
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.
It is rare for a court to find a witness' prior conviction admissible under Rule 609(b). In Horvath v. West Bend Mut. Ins. Co., 2013 WL 4124127 (7th Cir. 2013), the district court, however, had allowed for the admission of such a conviction. Did the Seventh Circuit agree?In Horvath,
After her home in South Bend, Indiana, burned down in February 2009, Kathy Horvath filed a claim in excess of $1.6 million with her insurer, West Bend Mutual Insurance Company ("West Bend"), for the house and its contents. West Bend denied the claim after determining that the fire was the result of arson: although Horvath was out of town at the time of the conflagration, West Bend asserted that the fire had been set with her consent or authority; it also asserted, inter alia, that Horvath had made material misrepresentations regarding the nature and extent of her damages. Horvath sued West Bend for breach of the insurance contract in state court, and West Bend removed the case to federal court on the basis of diversity of citizenship. The case was tried to a jury in 2012; a magistrate judge presided over the trial with the parties' consent. Horvath, of course, was a key witness at the trial. The jury delivered a general verdict in West Bend's favor and awarded Horvath nothing.
Horvath thereafter appealed, claiming that the district court erred by deeming her 1991 conviction for embezzlement admissible to impeach her pursuant to Federal Rule of Evidence 609(b). In addressing this issue, the Seventh Circuit noted it would only find error if it determined that the district court abused its discretion in deeming the prior conviction admissible.
In conducting this analysis, the Seventh Circuit noted that the district court applied the correct five factor test, which considers:
(1) The impeachment value of the prior crime.
(2) The point in time of the conviction and the witness' subsequent history.
(3) The similarity between the past crime and the charged crime.
(4) The importance of the defendant's testimony.
(5) The centrality of the credibility issue.
The problem, however, was that the district court improperly analyzed the third factor. According to the Seventh Circuit
There [wa]s one problem with the [district] court's analysis that is immediately apparent, however. Embezzlement, as the parties agree, is an offense similar to the act at issue here—arson committed with an eye to fraudulently collecting on an insurance policy—in that both involve deceitful conduct. The district court, like West Bend, considered similarity to be a positive rather than a negative factor vis-à-vis the admissibility of the conviction....It is clearly a factor weighing against admission, however: "When the prior conviction and the charged act are of a similar nature, the danger [of unfair prejudice] increases. The jury is more likely to misuse the evidence for purposes other than impeachment, that is, to regard the prior conviction as evidence of a propensity to commit crime or of guilt, despite instructions to the contrary."
Therefore, the Seventh Circuit assumed without deciding that the district court committed error but ultimately found that any such error was harmless and did not warrant disturbing the jury's verdict.