Counting The Years For FRE 609(b) Impeachment Purposes

In a civil rights action alleging excessive force, trial court erred in allowing impeachment of the plaintiff with three prior felony convictions more than ten years old, which had been used for enhancing the three strikes current sentence; under FRE 609(b) the prior conviction more than ten years old can be admitted if it has a “the probative value ... substantially outweigh[ed by] its prejudicial effect”; here the prejudicial impact of defendant's three old convictions were not harmless, in Simpson v. Thomas, 528 F.3d 685 (9th Cir. June 11, 2008) (No. 07-16228)

FRE 609(b) provides that impeachment by evidence of conviction is presumptively inadmissible “if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.” To overcome the presumption, a conviction more than ten years old may be admitted if “the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Before a conviction more than ten years old may be admitted, the proponent must provide advance written notice. If prior convictions are used to increase the sentence of a subsequent conviction, may the prior convictions be admissible for impeachment under FRE 609(b)? In one of the few cases to address this issue, the Ninth Circuit has answered in the negative.

In the case, the plaintiff, a prisoner named Simpson filed a civil rights action alleging that a corrections officer used excessive force when Simpson failed to comply with orders. Before trial, Simpson moved in limine to exclude his three prior felonies, which were more than ten years old. These felonies were for (1) burglary in 1986 (receiving a 40 month term); (2) possession of narcotics in 1989 (two year term); and (3) possession of marijuana in 1993 (sixteen month term). In May 2000, Simpson had been sentenced to 216 months in state prison after a nolo contendere response to a second degree armed robbery charge. This sentence included 156 months which were an enhancement for his prior felony convictions. Simpson, 528 F.3d at 688.

The trial judge's decision to admit the decades-old convictions was a result of the particular operation of state law. The trial court noted that since “prior convictions were utilized pursuant to California’s Three Strikes Law to enhance his current sentence, ‘those prior strikes were not and do not wash out under state law.’” Simpson, 528 F.3d at 687. During the trial, which took place in March 2007, when the plaintiff testified, the court allowed three prior convictions more than ten years old to be used for impeachment. The jury returned a verdict in favor of the corrections officer. Simpson’s motion for a new trial was denied. On appeal, he claimed the court erred in admitting the three prior felony convictions.


The circuit concluded that the trial court had erred and reversed and remanded the case for a new trial. The circuit addressed an open issue and held “that the use of prior convictions older than ten years to enhance a sentence for a separate conviction pursuant to California’s Three Strikes Law does not bring those prior convictions within the ten year time limit of Federal Rule of Evidence 609.” Simpson, 528 F.3d at 688. The most recent sentence “was admissible because that conviction fell within the parameters of Rule 609(b),” but “the three prior convictions were not admissible because, at the time of trial, it had been more than ten years since Simpson was released on the three prior convictions.” Simpson, 528 F.3d at 690.

The circuit noted that the defendant’s current conviction was enhanced based on the prior convictions under California’s Three Strikes Law. The circuit explained that plaintiff “Simpson had already completed his sentence for the prior convictions at the time his current sentence was enhanced. If we were to adopt the district court’s position and permit the use of prior convictions older than ten years for impeachment purposes under Rule 609, then the prior convictions would no longer be “a stiffened penalty for the latest crime.” Simpson, 528 F.3d at 690 (quoting Witte v. United States, 515 U.S. 389, 400 (1995))).

In addressing this open issue, the circuit drew upon precedent which held that three strikes provisions do not violate the Double Jeopardy Clause because the enhanced punishment is a higher penalty for the most recent crime, not additional punishment for an earlier crime. Simpson, 528 F.3d at 690-91. (citing United States v. Kaluna, 192 F.3d 1188, 1198-99 (9th Cir. 1999) (en banc) (Federal Three Strikes Provision, 18 U.S.C. § 3559(c)(1), did not violate the Double Jeopardy Clause, since “the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime”)).

The circuit also focused on the language of FRE 609(b), which “excludes evidence of a conviction if it has been more than ten years ‘since the date of the conviction or the release of the witness from the confinement imposed for that conviction.’” Simpson, 528 F.3d at 690-91 (quoting FRE 609(b) (emphasis added)). The circuit noted that this permits the use of prior felony convictions more than ten years old if “the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” The circuit concluded the trial court did not properly apply this factor.

Finally, the error was not harmless since the appealed case focused on the credibility of the witness. The circuit believed that the fact Simpson had three prior felony convictions likely was prejudicial and for these reasons, the judgment was reversed, and the case was remanded.

One other interesting aspect of the Simpson case was that the circuit pointed out against the utility of five specific five factors a trial court should assess in deciding whether the probative value of the decades-old conviction outweighs the prejudice under FRE 609(b): “These factors are:

  1. the impeachment value of the prior crime;
  2. the point in time of the conviction and the witness’s subsequent history;
  3. the similarity between the past crime and the charged crime;
  4. the importance of defendant’s testimony; and
  5. the centrality of defendant’s credibility.”

Simpson, 528 F.3d at 690-91.

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