The Unspecified Prior Conviction: Court Of Appeals Of Minnesota Precludes Sanitized Impeachment In Order Of Protection Violation Appeal

Like its federal counterpart, Minnesota Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.

When the prosecution seeks to impeach a criminal defendant through a prior conviction, the court considers five factors, such as how much bearing the crime leading to the prior conviction has on the defendant's honesty and the similarity between the crime leading to the prior conviction and the crime charged. Previously, when courts used to find that a specific conviction would not be admissible to impeach a defendant because its admission would be too prejudicial, they usually still allowed for the defendant (or another witness) to be impeached through evidence that he had some unspecified prior conviction. As the recent opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009), makes clear, however, the modern trend is away from this practice.

In Utter, Thomas Edward Utter, Jr. was charged with violating a harassment restraining order, and the prosecution sought to impeach him through his prior conviction for violating an order of protection. Based upon the similarity between the two crimes, the court determined that there was a substantial danger that the jury could misuse the prior conviction as propensity character evidence; however, rather, than exclude evidence of the conviction, the court allowed Utter to be impeached through evidence that he had a prior conviction, without the jury being informed of the crime leading to his prior conviction.

Utter subsequently appealed, and the Court of Appeals of Minnesota noted that "Minnesota appellate courts have not addressed the issue of whether evidence of an unspecified prior conviction is admissible, and other jurisdictions are split on the issue." The court then noted that Michigan had deemed unspecified prior conviction evidence inadmissible but also noted that

in a 1990 Illinois case, a concurring judge observed that "Michigan [was] the only state that expressly disallow[ed] impeachment by an unspecified felony," and that Florida, Idaho, Kentucky, Montana, Nebraska, Nevada, New Mexico, Washington, and Wisconsin allowed the "mere fact" of a felony conviction to be admissible, while Alaska, Connecticut, Oregon, and South Dakota considered the issue a matter of the trial court's discretion.  

According to the court, though, "since 1990, other jurisdictions have followed Michigan's rejection of the use of unspecified prior convictions for impeachment purposes, and, in 1999, the Illinois Supreme Court rejected what it called the 'mere fact' rule, reasoning that 'it is the nature of a past conviction, not merely the fact of it, that aids the jury in assessing a witness' credibility." The court then indicated that in its opinion in Bells v. State, 759 A.2d 1149, 1155 (Md.Ct.Spec.App. 2000), the Maryland Court of Special Appeals had found that

Although a rule permitting a sanitized use of similar convictions has some appeal, we are disinclined to graft such an extension onto the existing rule. Here, the court properly found that, in this case, the use of the prior convictions would in balance be more prejudicial than probative. We do not believe that the sanitized version was any less so.... [W]e hold that the lower court erred in permitting sanitized prior convictions to impeach Bells.

The Court of Appeals of Minnesota agreed with this reasoning and thus reversed, finding that

The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant “did it before, he most likely has done it again.” But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense....By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.

-CM