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Tag Archives: Witness Credibility

Witness Credibility When Witness Has A Criminal History.

08 Saturday Nov 2014

Posted by Celia C. Elwell, RP in 2nd Circuit Court of Appeals, Appellate Law, Colorado Supreme Court, Evidence, Federal Rules of Evidence, Jury Persuasion, Rule 609, Trial Tips and Techniques, Witnesses

≈ Comments Off on Witness Credibility When Witness Has A Criminal History.

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Evidence, EvidenceProf Blog, Felony, Judge Sotomayor, Violence, Witness, Witness Credibility

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

http://tinyurl.com/pr3nqtl

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.

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Third Circuit Holds Evidence Rule 609 Excludes Admissibility of Prior Criminal Convictions.

24 Sunday Aug 2014

Posted by Celia C. Elwell, RP in 3rd Circuit Court of Appeals, Admissibility, Appellate Law, Criminal Law, Evidence, Impeachment, Rule 609

≈ Comments Off on Third Circuit Holds Evidence Rule 609 Excludes Admissibility of Prior Criminal Convictions.

Tags

Criminal Convictions, Evidence, EvidenceProf Blog, Impeachment, Jeff Bellin, Rule 609, Witness Credibility

A Rare Federal Opinion that Gets, Really Gets, Rule 609, by Jeff Bellin, EvidenceProf Blog

http://tinyurl.com/lkrrmlw

Federal Rule of Evidence 609 governs the admissibility of criminal convictions to impeach witness credibility.  In a 2008 article, I criticized how the federal courts apply this rule, arguing that because of a widely adopted, often misapplied, and partially incoherent multi-factor framework, courts were letting too many defendants’ convictions be used as impeachment.  As I argued, if courts simply jettisoned the framework and did what the rule commanded – weigh probative value against prejudicial effect – exclusion would become the norm as intended.  Apart from getting the law right, this would have an additional benefit of generating more defendant testimony.  (Defendants generally decline to testify once a judge rules that their record comes in if they do.)  I don’t know how anyone can get behind a system where the person the jury most wants to hear from and who wants to tell his story sits silently at counsel table to keep the jury from hearing about his criminal record.

My arguments made little headway over the years and defendants’ convictions continue to be routinely admitted, but recently the Third Circuit cited my piece (along with criticism of others) in what may be one of the first signs of judicial dissatisfaction with the multi-factored balancing test.  The court also used/endorsed language rarely seen in published opinions that, in my view, gets the tone of Rule 609 right.

Commentators have observed that structuring the balancing in this manner creates a ‘predisposition toward exclusion.’ Wright & Gold, Federal Practice and Procedure § 6132, at 216.  ‘An exception is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present.’ Id.  § 6132, at 217.

U.S. v. Caldwell, — F.3d — (3d Cir. 2014)

Expect to see this language in lots of defense filings going forward and join with me in hoping that the courts are finally awakening to the unmitigated disaster that is the multi-factored Rule 609 balancing test.

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