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Credibility Proxies: Violence, by JSK, Evidence ProfBlogger, EvidenceProf Blog


Yesterday [November 7, 2014], we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility. In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.

This frequently cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further. To do so, I turn to another opinion from the past decade. This one is a frequently cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606. The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin. At trial, the government called cooperating witnesses. Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions. Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions.  It found that they weren’t especially probative of truthfulness. The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.

The Second Circuit disagreed with the blanket prohibition on naming the felonies. It held that unless a conviction fails 403 balancing and is excluded entirely, ‘it is the jury’s function to assess the probative value of a witness’ specific conviction or convictions as part of its overall evaluation of the witness’s credibility.’ Judge Sotomayor wrote that the trial court must examine ‘which of a witness’s crimes have elements relevant to veracity and honesty and which do not’ because while all felonies are not equally probative of credibility ‘many are significantly probative of a witness’ propensity for truthfulness.’

Judge Sotomayor then offered a taste of how the trial court should go about making these determinations. And this is where it gets really interesting. With heavy reliance on earlier authority, she distinguished acts of violence from crimes that “reflect adversely on a person’s integrity.’ Crimes of violence ‘generally have little or no direct bearing on honesty and veracity’ because they result from provocation, carelessness, impatience or combativeness. By contrast, she explained, theft and escape crimes, which don’t fall under 609(a)(2), are nonetheless highly probative of credibility because they involve ‘deliberate and injurious violation of basic standards rather than impulse or anger, and usually . . . some element of deceiving the victim.’ In addition, the gravity and/or depravity involved in the offense should be considered both for their ability to prejudice the jury and because ‘particularly heinous crimes may be high in probative value insofar as they reflect a rejection of social mores.’

Once again, then, rejection of social mores and ‘violation of basic standards” are held up as clear indicators of lack of credibility. Strangely, though, crimes of violence seem to fit those definitions quite well. The very criminalization of such acts suggest that society demands that one maintain self-control and refrain from violence in most circumstances. A violent lack of inhibition or a deliberate indifference to the injuries caused by ones’ actions arguably run contrary to basic standards that glue society together just as fundamentally as the decision to steal from another person.

Even if, instead, lying is linked to the ability to scheme or plan, then this is not much more helpful as a way to distinguish crimes of violence. Certainly, many theft crimes may happen without much thought (shoplifting, for example) and they may be more excusable as the result of thoughtlessness than violence that causes bodily harm to another person. Why is it likely that someone who steals $100 on a whim is more prone to lying than someone who lashes out at another with a beer bottle during a brawl? Why isn’t it equally likely that people who are prone to fly into a violent rage at a perceived slight or recklessly injure others would be careless of the courtroom oath or think nothing of fabricating facts in order to protect themselves? Judge Sotomayor doesn’t answer these questions.

Ironically, even as she offered this fairly detailed explanation of how to weigh felonies under Rule 609(a)(1), Judge Sotomayor illustrated the subjectivity of such line drawing. Coming to the opposite conclusion of the Colorado Supreme Court, she found that it was not error for the district court to conclude that the circumstances of one of the witness’ shoplifting conviction did not ‘involve falsity or deceit such as to fall within the ambit of Rule 609(a)(2).’ Her explanation: stealth and dishonesty are not the same thing.