Is A Conviction For Possession Of Child Pornography Admissible To Impeach A Witness Under FRE 609(a)(1)?

FRE 609 limits impeachment based on prior convictions to certain offenses; excluding evidence of a prosecution witness's conviction for possessing child pornography because, under FRE 609, this sort of prior conviction had "'very little (if any) bearing'" upon the witness's veracity or credibility in the defendant's mail fraud trial, in United States v. McGavitt, _ F.3d _ (3d Cir. July 24, 2013) (No. 12–1247) (unpublished)

The Third Circuit recently reviewed a case involving a defendant's attempt to impeach a prosecution witness's credibility based on a prior conviction for possession of child pornography. The case involved the application of FRE 609, which sets forth a number of situations in which a party may seek to impeach a witness. FRE 609(a)(1) permits a prior criminal conviction to impeach "a witness’s character for truthfulness":

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.
Any number of crimes have been considered admissible because of their implications for a witness's credibility -- for instance, controlled substances, rape and sexual assault, or sodomy. See, e.g.,, United States v. Rein, 848 F.2d 777, 781 (7th Cir. 1988) (delivery of a controlled substance admitted under FRE 609(a)(1)); United States v. Shaw, 701 F.2d 367, 385 (5th Cir. 1983) (admitting convictions for rape and assault with intent to rape under FRE 609(a)(1));United States v. Blankenship, 870 F.2d 326, 329 (6th Cir. 1988) (admitting prior sodomy conviction under FRE 609(a)(1)). But what about a conviction for possession of child pornography? According to the Third Circuit, this type of prior conviction would not qualify for impeachment under FRE 609(a)(1).

Trial Proceedings

In the case, defendant McGavitt leased property to various organizations and businesses. In an effort to pay debts he had incurred, he arranged for the sale of property "falsely representing" the income he was receiving from the property. He also "falsely represented" to possible lenders and buyers that the terms and conditions of the defendant's properties were suitable as a substantial collateral. The defendant's false representations were accomplished through means of forging documents concerning income from the property. When the defendant defaulted, a creditor sought re-payment from a enters on the property. Through this process, the lender and the renters learned that the documents regarding the property income were "were forgeries." The defendant was charged with mail fraud in the transmittal of the forged documents.

The defendant's trial "was not a complex case," lasting "just over two days from opening" to the jury's verdict" of guilty. The defendant appealed, claiming that the trial court had erred by excluding evidence about a conviction suffered by one of the witnesses for the prosecution. This witness testified at trial about the forgeries and the circuit found no error in the trial judge excluding this witness's prior child pornography convictions. The circuit employed a four-part test used to evaluate whether the witness's pornography criminal history should be admitted under FRE 609(a)(1). The circuit noted the four factors included:

  1. the kind of crime involved;
  2. when the conviction occurred;
  3. the importance of the witness' testimony to the case; and
  4. the importance of the credibility of the defendant.
McGavitt, __ F.3d at __ (citing Gov't of the V.I. v. Bedford, 671 F.2d 758, 761 n.4 (3d Cir. 1982)).

Even if the four factors were satisfied, the evidence of the witness's conviction still might not warrant admissibility. Under FRE 403, the trial court could exclude the prior conviction evidence if its probative value was "substantially outweighed by a danger of ... unfair prejudice.'” McGavitt, __ F.3d at __ (citing FRE 403; Bedford, 671 F.2d at 761). This condition suggests that the four factors may not need to be employed if the evidence, in any event, would not be admissible under FRE 403.

Circuit Analysis

In an unpublished ruling, the Third Circuit disposed of the defendant's claim of error in excluding the prior child conviction evidence about the witness. It affirmed the trial court's finding that admitting the FRE 609 conviction was more prejudicial than probative. According to the circuit:

[Witness] Reese's testimony involved [defendant] McGavitt's false representations .... It was admitted to show McGavitt's motive to defraud [creditor] BLX and to establish a pattern of [fraudulent] conduct. The District Court, after hearing Reese's testimony, granted the Government's motion to exclude the [witness's] conviction. The Court issued an opinion concluding that Reese's conviction “has very little (if any) bearing upon [Reese]'s veracity or credibility. Further, its relative prejudicial value, especially given the nature of the criminal conduct, is great." Thus, the District Court's exclusion of this evidence was not an abuse of discretion.
McGavitt, __ F.3d at __ (citing United States v. Ivins, No. 09–320, 2010 WL 2635799 (E.D. Pa. June 28, 2010) (evidence of a child pornography conviction did not weigh heavily on the issue of veracity and was highly prejudicial)).

Summary

The case highlights the application of common factors to determine whether certain convictions may be admitted under FRE 609. Even where the factors are established, the admissibility will still turn on the trial court's application of FRE 403.

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Photo Description: U.S. Court of Appeals for the Third Circuit, James A. Byrne United States Courthouse in Philadelphia, PA.

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