EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 7, 2014

Impeachable?: Supreme Court of Rhode Island Finds No Problem With Impeachment Via Old, Similar Conviction

Rhode Island Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if the court determines that its prejudicial effect substantially outweighs the probative value of the conviction. If more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, or if the conviction is for a misdemeanor not involving dishonesty or false statement, the proponent of such evidence shall make an offer of proof out of the hearing of the jury so that the adverse party shall have a fair opportunity to contest the use of such evidence.

So, assume that a defendant is charged with resisting arrest, and the trial is held in 2012. Also, assume that the defendant has the following convictions: assault on a police officer (1987), a 1982 assault on a police officer (1982), and simple assault (1982). If the defendant files a motion in limine, seeking to preclude the prosecution from introducing evidence of these convictions into evidence, how should the court rule? Let's look at the recent opinion of the Supreme Court of Rhode Island in State v. Mercurio, 2014 WL 1765690 (R.I. 2014).

In Mercurio, the facts were as stated above, with the trial court denying the defendant's motion. On appeal, the defendant seemingly only appealed the trial court's decision to allow the prosecution to admit evidence of the 1987 conviction. And here is what the Supreme Court of Rhode Island ruled in response:

Here, the trial justice took note of the fact that “[t]he * * * conviction in 1987 * * * is not charged as something involving dishonesty or false statements, but it does concern conduct which is similar to the conduct which the defendant is now faced with.” The trial justice determined, however, that he would permit the state to use defendant's prior convictions to impeach defendant but stated that he would “inform the jury of the limited purpose for which that evidence was being offered * * *.”  

We perceive no abuse of discretion in the trial justice's decision to deny defendant's motion in limine. The record in this case reflects that defendant was given an abundantly “fair opportunity to contest the [state's] use of [the] evidence [of his prior convictions],” as required by Rule 609(b). Absent some indication of a clear error on the trial justice's part, we will not disturb the trial justice's decision on review. “[T]he decision whether to admit evidence of prior convictions involves the balancing of several factors that turns on the particular facts of each case.”...The trial justice was within his discretion to conclude at the pretrial stage that defendant's multiple prior convictions, in spite of their age, had a probative value in demonstrating a disdain for the law so as to affect a jury's assessment of defendant's credibility. In particular, we note that this case, with the general lack of any physical evidence, largely hinged on a credibility determination, making the ability to impeach a witness's credibility of even greater importance. We cannot find that the trial justice was clearly wrong in his decision and, accordingly, will not disturb his denial of defendant's motion in limine.

I can't say that I agree. the 1987 conviction was 15 years before the defendant's trial, decreasing its probative value. While the defendant's credibility was important to resolution of the trial, a decision to admit his prior conviction(s) created a substantial risk that he wouldn't testify at trial. A conviction for assault on a police officer might say something about the defenant's disdain for the law, but it says little about his credibility as a witness.

Finally, and most importantly, the trial justice's ruling reveals a fundamental misunderstanding of impeachment. Impeachment is supposed to be about witness credibility, not criminal propensity. Thus, the fact that the 1987 conviction "concern[ed] conduct which is similar to the conduct which the defendant" was charged should have worked against admissibility, not in favor of it. Based upon the similarity, there was a real danger that the jury would misuse the conviction as propensity character evidence.



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It's really interesting opinion. The Court kind of throws up its hands as to the discretion call (I agree that they messed it up) but then does an interesting analysis on what it means to open the door to impeachment through those prior convictions- and, ultimately, reverses. Worth a read.

Posted by: nidefatt | May 7, 2014 7:18:27 AM

Yes, thanks. I was planning on doing a second post tomorrow on this other part of the case. As you note, the impeachment was just supposed to consist of impeachment via the "fact" of the defendant's prior "assault" conviction(s). But then, the defendant testified that he wouldn't put his hands on a police officer, which led the court to (erroneously, in the eyes of the Supreme Court of Rhode Island) allow the prosecution to introduce the details of the defendant's prior conviction(s).

Posted by: Colin Miller | May 7, 2014 12:16:38 PM

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