Prior Convictions, Propensity, and Character for Truthfulness

At EvidenceProf Blog, Colin Miller posts about Horvath v. West Bend Mut. Ins. Co., a recent decision in the Seventh Circuit.  Horvath made a claim to recover from her insurance company after her house burned down, but the insurance company argued that the fire had been set with Horvath's permission.  During trial, the judge permitted evidence of Horvath's 1991 conviction for embezzlement.

Rule 609(b) of the Federal Rules of Evidence allows the admission of prior convictions that are over ten years old only if the probative value of the conviction substantially outweighs any prejudicial effect that the conviction may have on the jury.  Contrast this with Rule 609(a)(1)(B), the rule that would have governed in this case had the conviction been less than ten years old.  Under 609(a)(1)(B), the court MUST admit the evidence as long as it meets the requirements of Rule 403, meaning that as long as the prejudicial effect of the prior conviction does not substantially outweigh its probative value, the evidence must be admitted.

Under the more stringent 609(b) standard, courts are typically required to consider several factors when deciding whether to admit evidence of a past conviction that is over ten years old.  Those factors are:

(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 crime.

(4) The importance of the defendant's testimony.

(5) The centrality of the credibility issue.

Here, the Seventh Circuit determined that the district court made a mistake in applying this test. The district court apparently misapplied the third factor, reasoning that if the prior conviction was similar to the present case, that weighed in favor of admitting the prior conviction.

Why was the district court wrong to do this?

The district court's analysis was mistaken because prior convictions are supposed to be used to impeach the credibility of a witness or defendant.  This evidence is not to be used to support an inference that because the defendant or witness committed a crime in the past, that person likely committed a crime or similar act in this case.  The Federal Rules seem to assume that with convictions that are less than ten years old, juries will typically infer that the convictions are used to impeach credibility and not to show propensity to carry out similar acts.  

This may be how juries use evidence of prior convictions.  Courts may instruct jurors that they are only to use evidence of prior convictions to infer that a person has an untrustworthy character and not to infer that the person was more likely to commit a crime again.  On the other hand, jurors may still be tempted to draw the propensity inference.  For empirical support of this claim, see generally Theodore Eisenberg & Valerie P. Hans, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes, 94 Cornell L. Rev. 1353 (2009).  For a critique of the assumption that people can have a character for trustworthiness or untrustworthiness, see H. Richard Uviller, Credence, Character, and the Rules of Evidence: Seeing Through the Liar's Tale, 42 Duke L.J. 776, 789-93 (1993).  As for my own contribution to the literature, I have have taken my own stab at analyzing the logic behind Rule 609 in this video I made last year for my Evidence class:

With this background Rule 609, it is clear why the district court erred.  If a prior conviction is similar to the conduct presently alleged, the jury is more likely to infer that the person acted out of a propensity to carry out that type of conduct.  The similarity between the two acts simply makes this inference seem much more intuitive.  This is not the inference the rule is supposed to promote, however, meaning that a higher degree of similarity between a past conviction and a present allegation is more likely to unduly prejudice the jury against the person with the conviction.