A Case Study in Doctrinal Chaos: Rule 609 in Minnesota
It is a scenario that plays out in criminal courts acrossthe country: a defendant moves topreclude impeachment with his prior convictions under Rule 609, the trial courtdenies the motion, and the defendant decides not to testify. The scenario is so familiar that the dangerthat a defendant will not testify is built into the five-factor framework courts use toevaluate the admissibility of prior convictions under Rule 609 in its 4thfactor: “the importance of the defendant’stestimony.” As I have blogged before, itis an understatement to say that courts struggle to interpret this factorcorrectly.
To illustrate, let’s look at two of the most recent cases onpoint:
In State v. Blevins, the court ruled that because the defendant’stestimony was “not particularlyimportant,” the fourth factor supported the admission of impeachment(since it wouldn’t be such a big deal if he had been prevented from testifyingby the impeachment).
But in State v. James, the fourth factor supported the admission of impeachmentfor the exact opposite reason, because “James’s testimony was important.”
And here is the punchline: these two cases are from the samecourt (the Minnesota Court of Appeals) inthe same month (July 2013).
The first case gets it right as the referenced Jones itself demonstrated. Jones,which (like the hapless Typhoid Mary) brought the five-factor framework to Minnesota, ruledthat the trial court improperly permitted impeachment because “it wasextremely important that the jury hear the story of the defendant.” State v. Jones, 271 N.W.2d 534,538 (Minn. 1978).
The second case gets it wrong, but can’t be blamed because itserroneous interpretation is supported by Minnesota Supreme Court case law. State v. Swanson, 707 N.W.2d 645 (Minn.2006). In Swanson, the Minn. SupremeCourt makes a common error of conflating the fourth and fifth (centrality ofcredibility) factor into an always-applicable superfactor that virtually ensures the admission of impeachment in anycase. Id. at 655 (“If credibility is acentral issue in the case, the fourth and fifth Jones factors weigh in favor ofadmission of the prior convictions.”) Notgood for Minnesota defendants.
Perhaps the zaniest part of this tale comes from another 2013opinion of the same court trying to reconcile this irreconcilable mess. Here is the reconciliation attempt, with myannotations in red:
“Courts often analyze the fourth and fifth Jones factorstogether. . . . . In general, if the admission of past convictions will preventthe jury from hearing a defendant’s version of events, the fourth Jones factorweighs against admission of the prior convictions. [right!] In this case, Walker deniedthat the firearms or drugs found in his home belonged to him . . ., it wasimportant for the jury to hear Walker’s testimony, which ordinarily weighsagainst admission of the prior convictions. [right!] Nevertheless, Walker choseto testify in his own defense, making his credibility a central issue in thecase. [ok] . . . Walker’s testimony . . . was directly opposite to thetestimony of the police officers[,] rais[ing] credibility issues that werecentral to the jury’s consideration of the case, [ok] and the district court properlyweighed the fourth and fifth Jones factors in favor ofadmission. [Nooooo!]” State v. Walker (Minn.App. 2013).
(Note how the confusion is almost inevitable on appeal when acourt considers the fourth factor in a case in which the defendant testified.)
Even more tragic, it appears that Minnesota’s criminal defense barhas given up. See Statev. Thurstin (Minn.App. 2012) (“Appellant concedes that credibility is a centralissue in this case and that the fourth and fifth factors weigh in favor ofadmission.”).
A lot of this is the fault of the five factor framework itself – aframework that is oddly enough derived from a pre-Rule 609 case. Four of the five factors are already builtinto Rule 609, and so it makes little sense to reweigh them when applying the rule. But if courts insist on applying a flawed framework,they need to get the flawed factors right, right?
To that end, I will try to call out courts that are making thiserror from time to time on the blog in the naïve hope that the message will getthrough. I began with Minnesota becausetheir courts appear to be screaming the loudest for help at this moment, butthe same error can be found in virtually all the states and federal courts ofappeal.
Anyone skeptical that the courts can really be making such anerror in broad daylight should read my article describing the evolution of thisjurisprudential train wreck in much greater depth. Circumventing Congress:How the Federal Courts Opened the Door to Impeaching Criminal Defendants withPrior Convictions, 42 U.C. Davis L. Rev. 289 (2008) (available here)
So far the article has not had the desired effect. See Clay v. State, 290 Ga. 822, 836 (Ga. 2012)(citing the article’s description of the many jurisdictions that adopted the flawedfive-factor framework to support Georgia’s adoptionof the framework). But perhaps we can change that, starting in Minnesota . . . .
– JB