EvidenceProf Blog

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

Saturday, December 19, 2009

Make Me Whole, Take 3: Minnesota Opinion Involves Yet Another Disastrous Application Of Minnesota's "Whole Person" Rationale

I have done a couple of previous posts (here and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. Atkinson, 2009 WL 4573726 (Minn.App. 2009).

In Atkinson, Kenneth Atkinson, Jr. was convicted of first-degree criminal sexual conduct. At trial, "the prosecutor sought to impeach [Atkinson] with evidence of his two felony convictions, one for a weapons offense and the other for a terroristic-threats offense." The trial court held "that allowing evidence of both convictions would be unfairly prejudicial but allowed the evidence of the terroristic-threats conviction." 

After he was convicted, Atkinson appealed, claiming, inter alia, that the court improperly permitted this impeachment.  According to the Court of Appeals of Minnesota, the issue was governed by Minnesota Rule of Evidence 609(a), which states 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, or (2) involved dishonesty or false statement, regardless of the punishment.    

Like many courts, Minnesota courts apply a five factor test for determining whether such a conviction is admissible for impeachment purposes:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue. 

As they say, though, the devil is in the details. In analyzing the first factor, most courts analyze how much bearing the prior crime has on witness (dis)honesty. Thus, crimes of violence are thought to have low impeachment value and property crimes are thought to have high(er) probative value. Atkinson might have found some success in these courts because he argued on appeal that "his prior conviction d[id] not involve dishonesty, and, therefore, its impeachment value was minimal, at best."  

Minnesota courts, however, do not follow this approach. Instead, in State v. Brouillette, 286 N.W. 2d 702, 707 (Minn. 1979), the Supreme Court of Minnesota found that "[j]ust because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value." The court then explained "that impeachment by prior crime aids the jury by allowing it 'to see 'the whole person' and thus to judge better the truth of his testimony.'" In other words, according to Minnesota courts, any felony conviction, regardless of whether it has any relation to truth or falsity, has impeachment value, making the first factor (almost) always favor admission.

According to the court in Atkinson, Atkinson

argued that this "whole person" rationale has been criticized and that overly permissive use of prior convictions for impeachment may lead to erroneous convictions. But knowledge that a jury may improperly use evidence of a prior conviction does not permit us to disregard supreme court precedent. Under Brouillette, [Atkinson]'s prior conviction is probative of credibility.

This makes no sense. What is the point of the first factor if it (almost) always favors admission? One of the critics of Minnesota's "whole person" rationale is William Mitchell College of Law Professor Ted Sampsell-Jones, who wrote in Minnesota's Distortion of Rule 609, 31 Hamline L. Rev. 405, 415-16 (2008), that "especially in more recent cases, Minnesota courts do not even recognize in passing that various crimes have varying degrees of probative value. Rather, they simply cite the whole person doctrine and conclude that the first factor favors admission--period."



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I just finished grading the essay questions on my fall Evidence final and had an impeachment with prior conviction question. Despite my repeated emphasis of the point that the "nature of the prior offense" element of the 609(a)(1) balancing test refers to the conviction's probative value for truthfulness, students almost instinctively think that it gives insight into the "whole person" and that because Bubba was convicted before he is the type of person who will commit other crimes, and, therefore, shouldn't be believed when he testifies. Apparently, my students would fit right in on the Minnesota Supreme Court! I stress that 609(a)(1) assumes that all convictions that carry a punishment of death or imprisonment for greater than one year and meet the 609(b) 10 year window have some value in determining character for truthfulness, but the balancing test of 609(a)(1) looks to refine that basic assumption and seeks to determine where on the continuum of probative value for truthfulness this particular conviction falls. I've been telling my students this for over 16 years and they still don't get. Good luck with the court!

Posted by: W.A. Woodruff | Dec 22, 2009 2:43:06 AM

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