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Univ. of South Carolina School of Law

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Monday, February 10, 2014

A New Theory of Hearsay, Take 2: Rule 609(a)(1)(B) & Statements Offered For a Nonhearsay Purpose

Dan is on trial for aggravated battery. He has a prior conviction for aggravated battery. After Dan testifies, the prosecution seeks to impeach him through evidence of his five year-old conviction for armed robbery. To be admissible, the evidence cannot simply satisfy Federal Rule of Evidence 403; instead, pursuant to Federal Rule of Evidence 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect.

A defendant calls an alibi witness at trial. After the alibi witness testifies on direct examination, the prosecution seeks to impeach him with evidence of a prior inconsistent statement that tends to incriminate the defendant. The prior statement is hearsay and only admissible to impeach that alibi witness, not to prove the truth of the matter asserted. My question today is: Should courts apply the same modified Rule 403 analysis that they would apply in the case above?

An example of this latter case is United States v. Winchenbach, 197 F.3d 548 (1st Cir. 1999). In that case, Ralph Winchenbach, Jr. was charged with distribution of cocaine. At trial, Robbie Flint testified as an alibi witness, inter alia, that he was unaware of Winchenbach selling drugs or being involved with drugs at the time of his arrest. Thereafter, the prosecution impeached Flint with evidence that he told an officer that "agents overlooked a quantity of buried cocaine during the search of Winchenbach's trailer."

After he was convicted, Winchenbach appealed, claiming, inter alia, that this prior inconsistent statement should have been deemed inadmissible under Federal Rule of Evidence 403. The First Circuit disagreed, concluding that

Virtually all evidence is designed to be prejudicial (i.e., to help one side's case and to hurt the other's); therefore, Rule 403 concerns itself not with prejudice per se but with unfair prejudice. It guards against “the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.”...Attempting to wrap himself in this mantle, the appellant hypothesizes that Bradford's testimony ineluctably led the jury to believe that the appellant was “a big time drug dealer.”... 

In passing upon this objection at trial, the lower court made a balanced apprisal of the situation. In the process, the court noted the high probative value of the evidence—Flint, after all, was an alibi witness whose testimony, if credited, would have exonerated Winchenbach—and concluded that it was not unduly prejudicial. In these circumstances, we discern no abuse of the court's discretion.

Moreover, the court noted that

the court prudently minimized any unfairly prejudicial impact by an immediate instruction that directed the jury to consider the statements attributed to Flint only “for the limited purpose of whatever effect they may have in your judgment upon [his] credibility.” In that connection, the court explicitly warned the jurors not to “use [the evidence] for the purpose of proving the truth of what [Flint] said out-of-court.” We have frequently remarked the prophylactic effect of such limiting instructions...and see no reason in this instance to abandon the “almost invariable assumption of the law that jurors follow their instructions....”

This analysis is remarkably similar to the analysis a court conducts under Rule 609(a)(1) when determining whether to admit evidence of a criminal defendant’s prior felony convictions for impeachment purposes.  In both cases, the evidence – the statement and the conviction – is only admissible to impeach.  And, in both cases, the evidence is not admissible to prove, “once a criminal, always a criminal,” or “once a drug dealer, always a drug dealer.”  Of course, one could easily argue that the statement is ripe with a higher danger of unfair prejudice given that it suggests that Winchenbach currently possessed drugs whereas prior convictions offered under Rule 609(a)(1) generally have no connection to the case being prosecuted.

And yet, if the prosecution were attempting to impeach Winchenbach with evidence of his prior conviction for cocaine distribution, the court would almost certainly deem the evidence inadmissible.  This is because Rule 609(a)(1)(B) only allows for the admission of a criminal defendant’s prior felony convictions for impeachment purposes “if the probative value of the evidence outweighs its prejudicial effect to that defendant….”  The problem for the prosecution would thus be that, based upon the similarity between the two crimes, the jury would misuse the prior conviction as propensity character evidence.

Given this, a good argument can be made that statements offered against criminal defendants for nonhearsay purposes should be subjected to heightened Rule 403 scrutiny. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2014/02/dan-on-trial-for-aggravated-battery-he-has-a-prior-conviction-for-armed-robbery-after-dan-testifies.html

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