That Was a Long Time Ago: Ohio Appellate Court Reverses Verdict Based Upon Improper Rule 609(B) Ruling

Like its federal counterpart, Ohio Rule of Evidence 609(B) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

And, as the recent opinion in Keaton v. Abbruzzese Bros., Inc., 2010 WL 3314342 (Ohio App. 10 Dist. 2010), makes clear, this is a difficult balancing test for parties to pass.

In Keaton, Mark A. Keaton appealed from a judgment entered upon a jury verdict in favor of  Abbruzzese Bros. Inc. and the Industrial Commission of Ohio, finding that Keaton was not entitled to participate in the state insurance fund for the condition of disc protrusion L5-S1. The facts in Keaton were undisputed: Keaton

was injured on October 7, 2004, in the course and scope of his employment with Abbruzzese, and a workers' compensation claim was allowed for multiple conditions. Thereafter, [Keaton] requested an additional allowance of "L5-S1 Disc Protrusion." In support of his request, [Keaton] relied on the medical report of Charles J. Kistler, D.O. The request for the additional claim was denied at all administrative levels; therefore, in accordance with R.C. 4123.512, [Keaton] filed an appeal with the Franklin County Court of Common Pleas.

In preparation for trial, Dr. Kistler's deposition was taken, at which time [Keaton]'s counsel objected to a line of questioning on cross-examination. A day prior to the jury trial conducted by a visiting judge, the assigned judge reviewed the deposition and overruled [Keaton]'s objections. The jury heard the evidence, and after deliberations rendered a verdict in favor of appellees finding [Keaton] was not entitled to the requested condition of L5-S1 disc protrusion.

The line of questioning dealt with Dr. Kistler's 1981 felony conviction for insurance fraud based upon his filing of false and inflated medical bills to an insurance company, and, after the jury found for the appellees, Keaton appealed this ruling. In addressing this issue, the court found that

pursuant to Evid.R. 609(B), evidence of Dr. Kistler's conviction was not admissible unless the trial court determined "in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." "Generally, convictions over ten years old rarely should be admitted under Evid.R. 609(B), and only in exceptional circumstances."

The court then found that Dr. Kistler did not open the door to interrogation regarding his prior conviction and concluded that

Dr. Kistler was the only witness testifying in support of the requested claim for L5-S1 disc protrusion. The majority of Dr. Kistler's cross-examination concerned his prior conviction; yet, the prior conviction, which concerned billing procedures, was completely unrelated to Dr. Kistler's opinion pertaining to diagnosis and causation. The admission into evidence of Dr. Kistler's stale conviction, particularly its underlying details, could do nothing more than prejudice the minds of the jurors, and any probative value did not substantially outweigh its prejudicial effect. In fact, the details of the underlying criminal conviction would not be admissible even under an appropriate use of Evid.R. 609 that permitted the admission of evidence of the criminal conviction itself. Thus, overruling appellant's objection to the admission of testimony regarding Dr. Kistler's prior criminal conviction was an abuse of discretion.

Frankly, I think that the court overstated its vase. Sure, the conviction could have prejudiced the minds of jurors, but could it really do "nothing more" than that? Couldn't it also show that the jurors shouldn't necessarily trust his testimony based upon his prior fraudulent behavior? Moreover, wouldn't the fact that the prior conviction was unrelated to Dr. Kistler's opinion concerning diagnosis and causation reduce the prejudicial effect of the prior conviction? That's the way that most courts look at it, but not the court in Keaton. Now, the conviction was pretty old and Dr. Kistler's testimony was pretty important, so I probably agree with the court that probative value of the conviction did not substantially outweigh its prejudicial effect. It is the analysis of the court that I found problematic.

-CM