Federal Evidence Review

In a negligent road accident case, driver could be impeached by evidence that he had been tried and convicted in Canada for possession of stolen property, even though the sentence had later been “absolved” under Canadian law; the absolution did not involve a finding that the driver was rehabilitated or had been innocent, and was not barred under FRE 609(c), in U.S. Xpress Enterprises, Inc. v. J.B. Hunt Transport, Inc., 320 F.3d 809 (8th Cir. 2003)

Under FRE 609(c), a witness may not be impeached if that witness has been rehabilitated. This provision forms an exception to the general rule in FRE 609(a) that admits evidence that the witness was convicted of a crime “punishable by death or imprisonment in excess of one year” if the court “determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.” FRE 609(a). Just when does a prior conviction result in rehabilitation? An Eighth Circuit case explored an approach a trial court could take to determining if FRE 609(c) precluded the admission of impeachment evidence.

In the case, a driver who worked for defendant J.B. Hunt Transport was involved in an accident with the driver of plaintiff U.S. Express. The accident caused the victim’s truck to veer off an overpass and land on a pickup truck -- killing both drivers. At trial, the court admitted evidence that the driver for the defendant “was tried and convicted in Canada of the crimes of possession of stolen property and conspiracy” which were offenses “punishable by imprisonment in excess of one year.” The jury returned a verdict for the plaintiff and the defendant appealed contending that the trial court should not have allowed impeachment of the defendant truck driver with the prior Canadian crimes because the defendant driver’s “conviction was absolved under Canadian law, [so that] it [wa]s not a ‘conviction’” under FRE 609(c).

The Eighth Circuit affirmed admission of the impeachment evidence of the prior Canadian convictions. In essence, the circuit rejected the notion that absolution of the conviction in Canada was sufficient as it involved only a payment of money. As the circuit explained:

“[T]he issue is whether the absolved conviction meets the requirements of Fed. R. Evid. 609(c)(1), and we do not find that it does. In order for [defendant driver] Trudel to receive the absolution, he paid $5,000 and complied with his six-month probation term. This does not constitute a finding that he was rehabilitated or innocent; and, therefore, the absolution of the conviction does not meet the requirements of Rule 609(c)(1).”

U.S. Xpress Enterprises, Inc., 320 F.3d at 816.

In addition to the absolution argument, the defendant also argued that at least one of the prior Canadian convictions should not have been admitted because it involved receiving stolen property, and therefore was not a crime involving “dishonesty or false statement” as required under FRE 609(a)(2). On this issue, the Eighth Circuit was persuaded by a Ninth Circuit case which held that “receiving stolen property suggests a lack of veracity on the part of [the defendant] ....” U.S. Xpress Enterprises, Inc., 320 F.3d at 816-17 (quoting United States v. Field, 625 F.2d 862, 872 (9th Cir. 1980)). Consequently, the trial judge’s determination that receiving stolen property was a crime of dishonesty was not an abuse of discretion.

As the U.S. Xpress Enterprises case suggests, issues involving whether a defendant’s conviction has been absolved are not frequently encountered. More common is the issue whether a particular conviction was otherwise cognizable under FRE 609.