State v. Black – impeachment of witness by remote manslaughter conviction improper

In State v. Black, decided October 3, 2012, the S.C. Court of Appeals held that impeachment of the defense’s only corroborating witness with a manslaughter conviction that was more than 10 years old was improper, but harmless error in the context of this case.  The defense lawyer did not object to admissibility of a second conviction from the same time period, and because there was other evidence of defendant’s guilt the Court of Appeals held that the error was harmless beyond a reasonable doubt.

The opinion has a useful, detailed analysis of rule 609(b).  Convictions that are over 10 years old are admissible for impeachment under 609(b) only if their probative value “substantially outweighs” their prejudicial effect, and the Court notes that “convictions over 10 years old will be admitted very rarely and only in exceptional circumstances.”

Another useful discussion involves the distinction between crimes related to honesty as opposed to crimes of violence when determining the probative value v. prejudicial effect, an analysis that must be applied not only under 609(b) but also 609(a) for convictions that are less than 10 years old – under 609(b) the conviction’s probative value must “substantially outweigh” the prejudicial effect, while under 609(a) the conviction’s probative value must “outweigh” the prejudicial effect, a lesser standard but still a balancing test.  Crimes of violence do not speak to a person’s credibility in the same way that crimes of dishonesty do:

A rule of thumb is that convictions that rest on dishonest conduct relate to credibility, whereas crimes of violence, which may result from a myriad of causes, generally do not. See Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967) (“In common human experience acts of deceit, fraud, cheating, or stealing . . . are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A ‘rule of thumb’ thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not . . . . The nearness or remoteness of the prior conviction is also a factor of no small importance.” (footnote omitted))

Too often in trial I have conceded that convictions within the 10 year mark will automatically come in as impeachment, without discussion as to whether the conviction is more probative than prejudicial, or the difference between types of prior convictions – there are probably many situations where we should challenge the admissibility of convictions even within the 10 year mark when they have no bearing on truthfulness or relation to the case at hand.

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