Evaluating FRE 609 Impeachment Evidence In Light Of Its Alternatives

In fraud and conspiracy trial involving a scheme to artificially inflate mortgage costs, excluding defendant's attempt to impeach the cooperating co-defendant, a key prosecution witness, with evidence that the witness had been convicted for felony sexual misconduct eight years previously in state court because the impeachment evidence was "unfairly prejudicial," particularly in light of its "minimal relevance to the witness's honesty," and because "the defendant had ample other bases to challenge the witness's truthfulness," in United States v. Chaika, __ F.3d __ (8th Cir. Oct. 1, 2012) (No. 11-3355)

The Eighth Circuit recently examined the scope of FRE 609 regarding the impeachment of a witness with evidence of a prior conviction. The court affirmed the trial judge's exclusion of evidence proffered by the defendant in order to impeach the testimony of a key government witness. The circuit's analysis assessed the foundational elements required under FRE 609, as well as the observation that the defendant had available much more damaging evidence that could undermine the witness's credibility (such as the witness's plea bargain in the case and his hopes to receive leniency for cooperating with the government by testifying.

In the case, defendant Chiaka and codefendant LaFavre were charged with fraud and conspiracy in their work to arrange various residential property transactions which had the result of providing the defendants a substantial kick-back. Before trial, the co-defendant agreed to plead guilty and cooperate. This cooperation involved testifying at trial against defendant Chiaka. Before trial, the defendant sought, and the trial judge denied, admission of evidence that the codefendant witness LaFavre had been convicted for felony sexual misconduct. With this excluded, apparently, no other evidence was used to impeach the key witness. The defendant was convicted and based part of his appeal on the exclusion of the sexual misconduct felony conviction of the witness, which had been suffered eight years previously. Chaika, __ F.3d __.

Among the first reasons offered by the Circuit for excluding the prior conviction evidence as that a conviction for sexual misconduct was not related to a crime of dishonesty. Additionally, the evidence was not related to any of the charges the defendant faced concerning fraud and conspiracy. In this situation, the circuit suggested that weighing of whether the evidence should have been admitted was relatively straight-forward:

[T]he district court carefully balanced probative value and the risk of unfair prejudice in exercising its Rule 403 discretion. While [cooperating co-defendant] LaFavre was a key government witness, his prior sexual offense was unrelated to the mortgage fraud at issue and did not require proof of “a dishonest act or false statement.” Rule 609(a)(2). As the district court noted in its pretrial ruling, to the extent LaFavre's truthfulness would be a trial issue, the ability to impeach him with his guilty plea, promise to cooperate, and hoped-for leniency was far more potent “ammunition.” Though Chaika asserts on appeal that the refusal to allow this additional basis for impeachment “deprived defendant of his right to a fair trial,” at trial he did not ask the court to revisit its pretrial ruling in light of LaFavre's specific testimony. Indeed, when Chaika later testified in his own defense, he admitted participating in the fraudulent nondisclosures that LaFavre and other government witnesses had described, claiming that he did so without the requisite intent to defraud. On this record, there was no abuse of the Rule 403 discretion expressly granted the district court in Rule 609(a)(1)(A).
Chaika, __ F.3d __ (emphasis added).

As the above quotation indicates, the application of FRE 609(a)(1)(A) can operate only when it is clear that the FRE 403 balance of probative value with likelihood of unfair prejudice is applied. As incorporated in the rule, the question of FRE 403 unfair prejudice is evaluated only with regard to the defendant. The Eighth Circuit noted that its approach was not unusual, particularly in assessing likely unfair prejudice. The court can examine whether the same weight of impeachment might be achieved with the use of other evidence available to the defendant. The Eighth Circuit cited "decisions from other circuits have upheld" exclusion of a government witness's prior felony sexual misconduct conviction. According to the circuit, this included these two other circuits:

  • United States v. Jackson, 549 F.3d 963, 978–79 (5th Cir. 2008): "[R]egistration as a sex offender is a 'scarlet letter.' So although the jury might have considered Richards more likely to be untruthful if it had known of his conviction, there is a significant danger that it would have instead improperly discounted his testimony because of personal revulsion for sex offenses. Moreover, there was ample reason for the jury to find Richards untrustworthy without introducing the prejudicial evidence....") In Jackson, the prejudicial evidence of a sex crime was more than facilitated by the fact that the defendant "had been convicted of several other crimes (including burglary and theft)," "was currently in prison for a 1999 bank robbery,"; the government would attempt to get his bank robbery sentence reduced in exchange for his testimony; and (4) he had a history of mental issues and drug abuse. Given the potentially severe prejudice that could have resulted from admitting the conviction and its mostly cumulative probative value, the district court did not abuse its discretion.), ,em>cert. denied, ––– U.S. ––––, 130 S.Ct. 51 (2009)
  • United States v. Begay, 144 F.3d 1336, 1338–39 (10th Cir. 1998): "The district court found that a defendant's conviction for marijuana possession did not relate to dishonesty and had limited probative value as to [witness's] credibility; it concluded the evidence lacked probative value for purposes of cross-examination and would possibly prejudice the jury if admitted. A conviction for drug possession is not necessarily relevant to credibility and is potentially prejudicial in arousing sentiment against a witness."
  • Chaika, __ F.3d __.

    The Chaika case demonstrates the complexity of the trial court's evaluation of the FRE 609 impeachment evidence using the familiar FRE 403 balance of prejudice and probative value. Although not discussed extensively by the circuit, it appears that the FRE 403 balance used under FRE 609(b)weighs not simply the potential prejudice against the probative value of the impeachment evidence. The court properly assesses whether there is other evidence available to the party to conduct the impeachment without using the proffered evidence. In Chaika the circuit cited how the trial judge accomplished this. The judge's explanation for his decision not to admit the witness's prior convictions was supported by the observation that the prior convictions were not necessary to impeach the witness's veracity. Instead, it was that the court could cite other, non-conviction record evidence that could more directly impeach the witness without the expense in terms of unfair prejudice. As explained by the trial court in Chaika, the defense had at its disposal other evidence which could make for a more persuasive of impeachment: ammunition, so to speak, to deal with Mr. LaFavre. He has pled guilty here. He has an agreement with the Government which he's going to hope by his testimony and cooperation will reduce his sentence. And clearly that can be brought to the jury's attention in some detail.

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Federal Rules of Evidence
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