Thursday, July 18, 2013
A Case Study in Doctrinal Chaos: Rule 609 in Minnesota
It is a scenario that plays out in criminal courts across the country: a defendant moves to preclude impeachment with his prior convictions under Rule 609, the trial court denies the motion, and the defendant decides not to testify. The scenario is so familiar that the danger that a defendant will not testify is built into the five-factor framework courts use to evaluate the admissibility of prior convictions under Rule 609 in its 4th factor: “the importance of the defendant’s testimony.” As I have blogged before, it is an understatement to say that courts struggle to interpret this factor correctly.
To illustrate, let’s look at two of the most recent cases on point:
In State v. Blevins, the court ruled that because the defendant’s testimony was “not particularly important,” the fourth factor supported the admission of impeachment (since it wouldn’t be such a big deal if he had been prevented from testifying by the impeachment).
But in State v. James, the fourth factor supported the admission of impeachment for the exact opposite reason, because “James's testimony was important.”
And here is the punchline: these two cases are from the same court (the Minnesota Court of Appeals) in the same month (July 2013).
The first case gets it right as the referenced Jones itself demonstrated. Jones, which (like the hapless Typhoid Mary) brought the five-factor framework to Minnesota, ruled that the trial court improperly permitted impeachment because “it was extremely important that the jury hear the story of the defendant.” State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978).
The second case gets it wrong, but can’t be blamed because its erroneous interpretation is supported by Minnesota Supreme Court case law. State v. Swanson, 707 N.W.2d 645 (Minn. 2006). In Swanson, the Minn. Supreme Court makes a common error of conflating the fourth and fifth (centrality of credibility) factor into an always-applicable superfactor that virtually ensures the admission of impeachment in any case. Id. at 655 (“If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions.”) Not good for Minnesota defendants.
Perhaps the zaniest part of this tale comes from another 2013 opinion of the same court trying to reconcile this irreconcilable mess. Here is the reconciliation attempt, with my annotations in red:
“Courts often analyze the fourth and fifth Jones factors together. . . . . In general, if the admission of past convictions will prevent the jury from hearing a defendant's version of events, the fourth Jones factor weighs against admission of the prior convictions. [right!] In this case, Walker denied that the firearms or drugs found in his home belonged to him . . ., it was important for the jury to hear Walker's testimony, which ordinarily weighs against admission of the prior convictions. [right!] Nevertheless, Walker chose to testify in his own defense, making his credibility a central issue in the case. [ok] . . . Walker's testimony . . . was directly opposite to the testimony of the police officers[,] rais[ing] credibility issues that were central to the jury's consideration of the case, [ok] and the district court properly weighed the fourth and fifth Jones factors in favor of admission. [Nooooo!]” State v. Walker (Minn.App. 2013).
(Note how the confusion is almost inevitable on appeal when a court considers the fourth factor in a case in which the defendant testified.)
Even more tragic, it appears that Minnesota’s criminal defense bar has given up. See State v. Thurstin (Minn.App. 2012) (“Appellant concedes that credibility is a central issue in this case and that the fourth and fifth factors weigh in favor of admission.”).
A lot of this is the fault of the five factor framework itself – a framework that is oddly enough derived from a pre-Rule 609 case. Four of the five factors are already built into Rule 609, and so it makes little sense to reweigh them when applying the rule. But if courts insist on applying a flawed framework, they need to get the flawed factors right, right?
To that end, I will try to call out courts that are making this error from time to time on the blog in the naïve hope that the message will get through. I began with Minnesota because their courts appear to be screaming the loudest for help at this moment, but the same error can be found in virtually all the states and federal courts of appeal.
Anyone skeptical that the courts can really be making such an error in broad daylight should read my article describing the evolution of this jurisprudential train wreck in much greater depth. Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289 (2008) (available here)
So far the article has not had the desired effect. See Clay v. State, 290 Ga. 822, 836 (Ga. 2012) (citing the article’s description of the many jurisdictions that adopted the flawed five-factor framework to support Georgia’s adoption of the framework). But perhaps we can change that, starting in Minnesota . . . .