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Does an Oath Inoculate a Medical Witness from Being Biased in Favor of Other Healthcare Providers?
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore
The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike. Indiana law is clear that the income of an expert derives from his/her work as an expert is highly relevant and goes directly to bias and prejudice. See Ind.R.Evid. 411, 616; Ind. Pattern Jury Instruction No. 1.09; Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548, 551-52 (Ind. App. 2009), trans. denied; Pickett v. Kolb, 237 N.E.2d 105 (Ind. 1968); Yates v. Grider, (1969) Ind. App. 251 N.E. 2d 846; Kleinrichert v. State, 530 N.E.2d 321 (Ind. App. 1980). As the Indiana Supreme Court stated in Pickett, supra:
It has long been the law in all jurisdictions of which we are aware that a witness may be properly cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and a contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him.
[P]roof of liability insurance in and of itself is not admissible, but such a principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. We do not think that a trial court may arbitrarily exclude otherwise competent and relevant evidence merely on the ground that it will reveal an insurance carrier is involved.
In this case, as previously stated, if a party sees fit to present a witness on his behalf, the opposing party has a right to cross-examine that witness with reference to all his interests in the litigation, including who is compensating him or giving him anything of value which resulted in his being a witness or participating actively in the litigation.
237 N.E.2d at 107-08. The Indiana Supreme Court’s rules trump any statute when the provisions conflict. In re Termination of the Parent-Child Relationship of B.H., 2013 Ind. App. LEXIS 256 (Ind. Ct. App. May 30, 2013). The principle that this rule of law survived the adoption of the Indiana Rules of Evidence was confirmed in Brown-Day, 915 N.E.2d at 551-52. Indiana Rule of Evidence 411 explicitly excepts evidence of bias from the restriction on presenting evidence of insurance. This Rule provides:
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. [Emphasis Added].
Indiana Rule of Evidence 616 recognizes that witnesses are subject to cross examination on topics addressing bias. This Rule provides:
Rule 616. Witness’s Bias
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. [Emphasis Added].
Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. The fact that embraces the topic of the Patient Compensation Fund should not prevent such inquiries. By analogy inquiries regarding a juror’s interest in an insurance company is a valid line of inquiry. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the court stated:
[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.
Id. at 621.
Panel members should be able to be questioned regarding their financial interest in the outcome of a medical malpractice case since each of them our participants in the patient compensation fund and are financially impacted by any monies awarded from the fund. The collective impact of favorable plaintiff’s verdicts is not trivial and has a financial impact on panel members. The prohibition on mentioning insurance is not absolute. Under Rule of Evidence 411, evidence that a witness was insured against liability is admissible to prove their “bias” or “prejudice”. While recognizing all of these arguments exist, the Court of Appeals here in Indiana has refused to overturn a trial court’s discretionary decision to exclude such evidence pursuant to Indiana Rule of Evidence 403. This rule leans in favor of admitting such evidence (unlike Rule 608 which deals with evidence of criminal convictions). The attendant prejudice must substantially outweigh the probative value. A trial court’s decision on this issue may only be reversed for an abuse of that discretion to n deciding this issue. In Tucker v. Harrison, 973 N.E.2d 46 (Ind. App. 2012) upheld the trial court’s decision to exclude such evidence noting:
Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias … of the witness for or against any party to the case is admissible.”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. (citations omitted). Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. [Emphasis Added].
Id. at 55. Alas, if an oath guaranteed truth there would be no need for cross-examination or even a trial for that matter. Bias can occur on an unconscious level and is not cured by being placed under oath. If not, why is it so difficult to get local doctors to assist and go on the record in medical malpractice case against another doctor? The Court of Appeals went on to observe:
[The Plaintiff’s] proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana—all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, [the Plaintiff] has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). (Emphasis Added).
Id. at 55. The Court of Appeals then held that:
When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. ***The trial court did not clearly err in excluding the proffered bias testimony.
Id. Ultimately the issue remains one for the trial court to resolve in its discretion. In order to succeed in present such evidence of bias, quantifying the amount of this contribution to the patient compensation fund by each doctor may be necessary to overcome a claim of unfair prejudice by the defense. The size of this contribution by a panel member may well vary depending upon the area of practice, the doctor’s risk history and the true number of practitioner’s that participate in the Fund. See the Schedule below and the dollar amounts of the Compensation Fund surcharge by classification of specialties found in Indiana’s Administrative Code:
These classes breakdown as follows in terms of areas of practice per 760 IAC 1-60-3 (Rule 60):
760 IAC 1-60-3 List of physician specialty classes
Authority: IC 34-18-5-2
Affected: IC 34-18-5-2
Sec. 3. The list of physician specialty classes required by IC 34-18-5-2 is as follows:
Indiana Department of Insurance
Patient’s Compensation Fund
Physician Class Plan
Class 0
ISO Code Specialty
80001 Resident Nonmoonlighting
80221 Resident Moonlighting (No ER)
80230 Aerospace Medicine
80231 General Preventive Medicine – No Surgery
80234 Pharmacology – Clinical
80236 Public Health
80240 Legal Medicine and Forensic Medicine
80248 Nutrition
80249 Psychiatry (Including Child)
80250 Psychoanalysis
80251 Psychosomatic Medicine
80254 Allergy
80256 Dermatology – No Surgery
80263 Ophthalmology – No Surgery
80266 Pathology – No Surgery
Class 1
ISO Code Specialty
80233 Occupational Medicine
80235 Physical Medicine and Rehabilitation
80237 Diabetes – No Surgery
80238 Endocrinology – No Surgery
80239 Family Practice – No Surgery
80241 Gastroenterology – No Surgery
80242 General Practice – No Surgery
80243 Geriatrics – No Surgery
80244 Gynecology – No Surgery
80245 Hematology – No Surgery
80246 Infectious Disease – No Surgery
80247 Rhinology – No Surgery
80252 Rheumatology – No Surgery
80255 Cardiovascular Disease – No Surgery
80257 Internal Medicine – No Surgery
80258 Laryngology – No Surgery
80259 Neoplastic Disease – No Surgery
80260 Nephrology – No Surgery
80261 Neurology (Including Child) – No Surgery
80262 Nuclear Medicine
80264 Otology – No Surgery
80265 Otorhinolaryngology – No Surgery
80267 Pediatrics – No Surgery
80268 Physicians (Not Otherwise Classified) – No Surgery
80269 Pulmonary Disease – No Surgery
80420 Family Physicians – No Surgery
Class 2
ISO Code Specialty
80223 Resident Moonlighting (with ER)
80253 Radiology – No Surgery
80280 Radiology – Minor Surgery
80282 Dermatology – Minor Surgery
80289 Ophthalmology – Minor Surgery
80292 Pathology – Minor Surgery
80425 Radiation Therapy – Not Otherwise Classified
80431 Shock Therapy
Class 3
ISO Code Specialty
80109 Physicians – No Major Surgery
80114 Surgery – Ophthalmology
80132 Physicians (Not Otherwise Classified) – Minor Surgery
80172 Physician (Not Otherwise Classified) – No Major Surgery
80270 Rhinology – Minor Surgery
80271 Diabetes – Minor Surgery
80272 Endocrinology – Minor Surgery
80273 Family Practice – Minor Surgery
80274 Gastroenterology – Minor Surgery
80275 General Practice – Minor Surgery
80276 Geriatrics – Minor Surgery
80277 Gynecology – Minor Surgery
80278 Hematology – Minor Surgery
80279 Infectious Diseases – Minor Surgery
80281 Cardiovascular Disease – Minor Surgery
80283 Intensive Care Medicine – Minor Surgery
80284 Internal Medicine – Minor Surgery
80285 Laryngology – Minor Surgery
80286 Neoplastic Diseases – Minor Surgery
80287 Nephrology – Minor Surgery
80288 Neurology (Including Child) – Minor Surgery
80290 Otology – Minor Surgery
80291 Otorhinolaryngology – Minor Surgery
80293 Pediatrics – Minor Surgery
80294 Physicians (Not Otherwise Classified) – Minor Surgery
80421 Family Physicians (GP) – Minor Surgery – No OB
80422 Catheterization, Not Otherwise Classified
80424 Emergency Medicine – No Surgery
Class 4
ISO Code Specialty
80000 Family Practice – with OB
80101 Broncho-Esophagology
80115 Surgery – Colon and Rectal
80117 Surgery – GP (Not Primarily Engaged in Surgery)
80145 Surgery – Urological
80151 Surgery – Anesthesiology
80163 Radiation Therapy – Employed Physicians or Surgeons with Major Surgery
80428 Physicians – Minor Invasive Procedures – Myelography
80434 Physicians – Minor Invasive Procedures – Lymphangiography
80437 Physicians – Minor Invasive Procedures – Acupuncture
80440 Physicians – Minor Invasive Procedures – Laparoscopy
80443 Physicians – Minor Invasive Procedures – Colonoscopy
80446 Physicians – Minor Invasive Procedures – Needle Biopsy
80449 Radiopaque Dye Injection
Class 5
ISO Code Specialty
80102 Emergency Medicine – No Major Surgery
80103 Physicians – Surgery – Endocrinology
80104 Physicians – Surgery – Gastroenterology
80105 Physicians – Surgery – Geriatrics
80106 Surgery – Laryngology
80107 Physicians – Surgery – Neoplastic
80108 Physicians – Surgery – Nephrology
80158 Surgery – Otology
80159 Surgery – Otorhinolaryngology
80160 Physicians – Surgery – Rhinology
80419 Family or General Practice – Major Surgery
Class 6
ISO Code Specialty
80141 Surgery – Cardiac
80143 Surgery – General Not Otherwise Classified
80155 Surgery – Plastic – Otorhinolaryngology
80156 Surgery – Plastic Not Otherwise Classified
80157 Surgery – Emergency Medicine
80166 Surgery – Abdominal
80167 Surgery – Gynecology
80169 Surgery – Hand
80170 Surgery – Head and Neck
Class 7
ISO Code Specialty
80144 Surgery – Thoracic
80146 Surgery – Vascular
80150 Surgery – Cardiovascular Disease
80154 Surgery – Orthopedic
80171 Surgery – Traumatic
Class 8
ISO Code Specialty
80152 Surgery – Neurology (Including Child)
80153 Surgery – Obstetrics/Gynecology
80168 Surgery – Obstetrics
The facts the Indiana Court of Appeals had to assume given the underdeveloped record before the trial court, substantially underestimated the amount of money contributed by doctors and other healthcare providers on a yearly basis. While by statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). This is not the reality. Depending on the area of practice, the actual dollar amounts contributed by healthcare providers are from 2,222% to 25,186% higher than the $100 annual fee assumed by the Court of Appeals! The actual potential for bias when viewing the real numbers is neither remote nor trivial. Such evidence of financial bias on the part of Panel Members should be admissible and evaluated by the finder of fact. The probative value of such evidence is high and is not substantially outweighed by the risk of unfair prejudice.
Impeccable Impeachment and the Use of Prior Convictions
“Trust is not simply a matter of truthfulness, or even constancy. It is also a matter of amity and goodwill. We trust those who have our best interests at heart, and mistrust those who seem deaf to our concerns.” Gary Hamel
What are the limitations on the use of prior convictions in challenging a witness’s credibility? When are you allowed to use them? What are you allowed to reveal? This blawg note will explore these issues. Let’s first start with the rule:
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (10) years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Juvenile Convictions: Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).
Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied.
When Does the 10 Year Period Begin and End: There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998). “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.
Guilty Pleas: The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)). McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.
Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect: Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996). Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993). To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.
Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:
(1) the impeachment value of the prior crime;
(2) the point in time of the conviction and the witness’ subsequent history;
(3) the similarity between the past crime and the charged crimes;
(4) the importance of the defendant’s testimony; and
(5) the centrality of the credibility issue.
Castor, 937 F.2d at 299 n. 8; see Miller, at 171.
Impeaching Your Own Witness: Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).
Revelations Concerning the Facts Surrounding the Conviction: When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001). A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction. Id. However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible. Id.
Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.
What are the limitations on the use of prior convictions? When are you allowed to use them? What are you allowed to reveal? This note will explore these issues. Let’s first start with the rule:
Rule 609. Impeachment by Evidence of a Criminal Conviction
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (10) years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:
(1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or
(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:
(1) it is offered in a criminal case;
(2) the adjudication was of a witness other than the defendant;
(3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and
(4) admitting the evidence is necessary to fairly determine guilt or innocence.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Below are some thoughts on some of the issues concerning the use and admissibility of prior convictions:
Juvenile Convictions: Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).
Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied.
When Does the 10 Year Period Begin and End: There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998). “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.
Guilty Pleas: The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)). McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.
Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect: Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996). Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993). To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect. This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.
Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:
(1) the impeachment value of the prior crime;
(2) the point in time of the conviction and the witness’ subsequent history;
(3) the similarity between the past crime and the charged crimes;
(4) the importance of the defendant’s testimony; and
(5) the centrality of the credibility issue.
Castor, 937 F.2d at 299 n. 8; see Miller, at 171.
Impeaching Your Own Witness: Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).
Revelations Concerning the Facts Surrounding the Conviction: When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001). A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction. Id. However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible. Id.
Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.
The Barrister's Toolbox 