Sunday, August 8, 2021
Texas Rule of Evidence 609(a) provides that
Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:
(1) the crime was a felony or involved moral turpitude, regardless of punishment;
(2) the probative value of the evidence outweighs its prejudicial effect to a party; and
(3) it is elicited from the witness or established by public record.
So, should a testifying criminal defendant's 10 year-old aggravated robbery conviction be admissible against him at his aggravated robbery trial? That was the question addressed by the Texas Court of Appeals, Waco, in Jones v. State, 2021 WL 3410473 (Tex.App. 2021).
In Jones, Damion Jones appealed his aggravated robbery conviction, claiming that the trial court improperly allowed the prosecutor to impeach him with his 10 year-old aggravated robbery conviction. The court noted that there are five non-exclusive factors that a court considers to decide whether a prior conviction is admissible under Rule 609(a):
(1) the impeachment value of the prior crime, (2) the temporal proximity of the prior crime relative to the charged offense and the witness' subsequent history, (3) the similarity between the prior crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue.
The court then held that
The impeachment value of crimes that involve deception is higher than crimes that involve violence....Because the prior conviction was for aggravated robbery, the impeachment value is not high under the Theus factors. Jones was convicted on June 21, 2007 for the offense of aggravated robbery and sentenced to eight years confinement. He was indicted for the current offense on April 2, 2017. The prior conviction is not too remote under Rule 609(b). The 2007 conviction was for aggravated robbery, and Jones was being tried for aggravated robbery. Because Jones's prior conviction is similar to his present offense, the similarity factor weighs against the admission of the evidence. However, the jury was charged to consider the previous conviction only to determine the weight to be given to Jones's testimony, not as evidence of guilt. We must presume the jury followed these instructions....
The last two factors, importance of the defendant's testimony and his credibility, are related. When the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility escalates....As the importance of the defendant's credibility escalates, so does the need to allow the State an opportunity to impeach his credibility....Jones was the only witness called by the defense at trial, and his testimony contradicted that of Dockery. Therefore, Jones's credibility was a central issue, and the State's need to be able to impeach his credibility was high. We find that the trial court did not abuse its discretion in allowing the introduction into evidence of Jones's 2007 conviction for aggravated robbery. We overrule the third issue.
This analysis is pretty misguided. The court got the first factor right because an aggravated robbery conviction doesn't have much bearing on witness honesty. That's one factor against admission.
Under the second factor, the court is right that the prior conviction wasn't too remote to create a huge presumption of inadmissibility. But still, a conviction that is almost 10 years old has very little bearing on current honesty. This factor thus should have cut strongly against admission.
Under the third factor, the court was far too dismissive of prejudice based on the jury instruction. The highest degree of prejudice is created when a defendant is impeached with evidence of the same crime. There's a huge concern that the jury used Jones's prior conviction to establish "once an aggravated robber, always an aggravated robber" instead of (or in addition to) using it to establish that Jones was an untrustworthy witness. This factor thus should have cut strongly against admission.
The fourth factor should cut against admissibility when there's a worry that approving the prior conviction will deter the defendant from testifying. Thus, this factor thus should have cut strongly against admission.
Finally, the court got it right under the fifth factor.
Therefore, four factors cut strongly against admission and only one factor favored admission. The court should have found that the approved impeachment was erroneous.