EvidenceProf Blog

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

Friday, February 26, 2010

Mississippi Mud: Court Of Appeals Of Mississippi Reverses Conviction Based Upon Impeachment Of Non-Testifying Criminal Defendant

Similar to its federal counterpartMississippi Rule of Evidence 609(a)(1) provides that 

For the purpose of attacking the character for truthfulness of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party.  

As I always tell my Evidence students, the only purpose of impeachment is to show the jury (or judge) that a witness' testimony is not necessarily trustworthy. What this means is that a criminal defendant's prior convictions cannot be admitted to impeach him unless he chooses to testify at trial. What this also means is that the Court of Appeals of Mississippi had to reverse Willie Joe Robinson's conviction in its recent opinion in Robinson v. State, 2010 611504 (Miss.App. 2010).

In RobinsonWillie Joe Robinson was convicted of burglary of a building and sentenced as a habitual offender to seven years in the custody of the Mississippi Department of Corrections." One of the pieces of evidence that the prosecution introduced against Robinson at trial was his 2001 conviction for attempted grand larceny. The trial court admitted this conviction for impeachment purposes under Mississippi Rule of Evidence 609(a)(1), and the Court of Appeals of Mississippi later found that this decision was erroneous because Robinson did not testify at trial.

Of course, an appellate court can still affirm a trial court's opinion if it reached the right evidentiary ruling based upon the wrong evidentiary rule, and the prosecution alleged on appeal that the conviction could have been admitted under Mississippi Rule of Evidence 404(b) to prove motive or intent. But according to the Court of Appeals of Mississippi, the problem in this regard was that the trial court record was insufficient for it to determine whether the conviction would have been admissible for these purposes

An appellate court can also affirm a trial court's opinion based upon a finding of harmless error. Here, however, the court did not find that the admission of the conviction was harmless, especially in light of the fact that the prosecutor told the jury during closing argument, "He's stolen before. He is, in fact, a thief."



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