The Florida Bar Journal, November, 2009 Volume 83, No. 10
Approximately one in 10 adult male Floridians has a criminal record.1 Surprisingly, however, most civil litigation attorneys do not routinely investigate whether an adverse party or witnesses have a criminal background. They are overlooking a key item of discovery, because the introduction of a civil litigant’s conviction could have a highly prejudicial effect on that person’s credibility, since most juries do not look sympathetically toward a litigant who has a criminal background.
Although conventionally one thinks of utilizing a criminal conviction against a civil litigant in a personal injury case, the use of such a conviction is equally useful to impeach a party or witness in a commercial case. This article discusses how to discover whether a civil witness has one or more criminal convictions and the admissibility of such convictions in Florida state and federal courts. In addition, it provides advice on how to minimize the prejudicial effect of such convictions.
Uncovering Criminal Convictions
• Internet Searches — There are several commercial Internet services which investigate a person’s conviction background.2 One company has a Florida statewide and federal database which contains 913,230 arrest records.3 An Internet criminal record search should be instituted as a regular practice whenever a complaint or answer is received. Internet searches are valuable sources of information and have the added benefit of secrecy, since, unlike subpoenas, no notice is required to the adverse party.
• Sunshine Law Requests — Other excellent sources to uncover criminal convictions are law enforcement and correctional agencies in the place the plaintiff resided in the last 10 years. Counsel should send a letter to the law enforcement agency with a header that indicates the request is a sunshine law request pursuant to F.S. §119.01. Police agencies are usually very responsive to these requests and most have a sunshine information law officer. In addition, both the federal4 Freedom of Information Act and state5sunshine law provide for administrative fines and attorneys’ fees for noncompliance. Also, if there is any suspicion that the litigant might have been involved in a federal offense or an out-of-state offense, Freedom of Information Law requests should be served on the Department of Justice6 and Federal Bureau of Prisons.7
• Standard Interrogatory — The next step to uncover criminal convictions is to serve on the opposing party the standard interrogatory number 5 in Appendix I of the Rules of Civil Procedure:
Have you ever been convicted of a crime, other than a juvenile adjudication, which under the law under which you were convicted was punishable by death or imprisonment in excess of one (1) year or involved dishonesty or false statement regardless of the punishment? If so, state as to each conviction the specific crime and the date and place of conviction.
If the adverse parties’ answers to interrogatories do not disclose a criminal conviction that you have uncovered through Internet searches or sunshine law requests, counsel can confront the witness with his or her lie in a video-taped deposition or preserve the element of surprise by confronting the witness at trial.
State v. Federal Evidence Code
Florida Evidence Code 90.610 is based upon Federal Rule of Evidence 609 and differs only slightly from that rule concerning the admissibility of a civil litigant’s criminal conviction for impeachment purposes. The underlying policy of both rules balances the prejudice of introduction of such a conviction with its probative value. Under the federal rule, a conviction more than 10 years old is not admissible, absent special circumstances. In state court, on the other hand, there is no 10-year demarcation; there is instead a vague “remoteness” test:
Florida Evidence Code 90.610 Conviction of certain crimes as impeachment.
(1) A party may attack the credibility of any witness… by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment, with the following exception:
(a) Evidence of any such conviction is inadmissible in a civil trial if it is so remote in time as to have no bearing on the present character of the witness. (Emphasis added.)
Limits on the Trial Court’s Discretion
Although the trial court has great discretion to exclude otherwise admissible criminal convictions due to remoteness or undue prejudice, there is a limit to its discretion. This was well illustrated in Children’s Palace v. Johnson, 609 So. 2d 755 (Fla. 1st DCA 1993). Johnson brought a negligence suit against the Children’s Palace Store to recover for injuries sustained when a rack allegedly fell on her and struck her while she was shopping in the store. The defense sought to introduce her numerous prior felony and misdemeanor convictions for writing bad checks. The trial court refused to allow admission of the convictions. The First District Court of Appeal reversed that verdict. The court noted that Johnson had more than 40 convictions spanning the time period of 1970 through 1990. It held that the convictions should have been admissible both because they were not so remote as to have “no bearing on [p]laintiff’s present character” and because the convictions established a continuing pattern of the same act.
The court also noted that this was not a situation where the witness’ testimony was cumulative or otherwise of marginal importance. Johnson’s testimony was critical in establishing the facts surrounding her injuries and the extent of her damages. Because there were no other witnesses to the accident, Children’s Palace’s only defense was to undermine the credibility of Johnson. Under such circumstances, the trial court’s refusal to admit the convictions constituted a clear abuse of discretion.
Technique for Impeachment
To impeach a defendant by past convictions, a record of such convictions must be offered into evidence. The correct procedure for interrogating a witness is as follows: 1) whether the witness has been convicted of a crime; and 2) how many times.
If the witness admits the prior conviction, the inquiry by his or her adversary must end, but if the witness denies the prior conviction, then the adversary may produce a record of any conviction to impeach the credibility of the witness. Rommell v. Firestone Tire & Rubber Company, 394 So. 2d 572 (Fla. 5th DCA 1981), is illustrative of such an approach. The plaintiff sued the tire manufacturer, Firestone, to recover damages allegedly sustained when his truck overturned on the highway. The accident was allegedly due to the blow out of two tires made by Firestone.
At trial, defense counsel asked the plaintiff the following questions:
Q) “Charles, have you been convicted of a crime?”
A) “Yes, sir.”
Q) “How many times?”
Q) “Have you ever answered that question when it was asked to you ‘no’?” (Appellant had apparently answered the questions about his conviction of a crime in the negative at his deposition).
During redirect, the plaintiff testified that he had been convicted of a misdemeanor at the age of 18 and that he had also been convicted of another offense, also a misdemeanor, since the date of his deposition. On recross, defense counsel asked the following question: “Isn’t it true — that you were convicted of a crime of fraudulently endorsing a federal check just recently?” The plaintiff answered, “No.”
One of the issues on appeal was the propriety of defense counsel’s questioning the plaintiff concerning his criminal history. Firestone argued that the questioning was proper, as the plaintiff had attempted to create the impression that both convictions were remote in time. However, the Fifth District reversed the defense verdict and ordered a new trial, holding that the plaintiff did not misrepresent the dates of his offenses to the jury. Moreover, even if the plaintiff had misrepresented the dates, the naming of a specific crime (federal check forgery) by defense counsel to correct the impression was improper.
The witness, of course, has the option of offering relevant testimony that mitigates against the conviction: for example, 1) if the witnesses had been pardoned; 2) if the crime was a “minor” one; 3) if it had occurred many years ago; 4) if the witness pled guilty for “expediency”; or 5) if the witness was innocent. However, this opens the door to collateral impeachment of the witnesses’ explanation.
Criminal Cases Provide Important Guidance
Since the standard for admissibility of a prior criminal conviction in a criminal case is the same as its introduction in a civil case, the extensive body of case law in the criminal context is instructive. For example, in Cullen v. State of Florida, 927 So. 2d 1155 (Fla. 4th DCA 2006), a prior codefendant who had participated in a crime with the defendant (and entered a plea), testified against the defendant at trial. The defendant impeached the witness with his conviction of “having sex with a 16 year-old” in another state, where it was a misdemeanor. The defendant argued that even though the misdemeanor was probably not admissible under F.S. §90.610, the former co-defendant “opened the door” by volunteering, on more than one occasion, that before this conviction he had “never been in trouble.”
In order to open the door to this type of evidence, the witness must “first offer misleading testimony or make a specific factual assertion which the opposing party has a right to correct, so that the jury will not be mislead.” In Cullen, the Fourth District agreed with the defendant that the trial court’s restriction of cross-examination under these circumstances was not harmless error: “We agree with the defendant that this witness, by volunteering that he had never been in trouble before, did open the door to this conviction, which would not have otherwise been admissible.”
The fascinating recent case of Reichmann v. State of Florida, 966 So. 2d 298 (Fla. 2007), also provides important guidance concerning the admissibility of “remote” foreign convictions. Dieter Reichmann and Kersten Kischnick came to Miami from Germany in early October 1987, and Kischnick was shot to death as she sat in the passenger seat of an automobile driven by Reichmann. Reichmann was charged with her murder. At trial, the state’s theory was that Kischnick was a prostitute who worked for Riechmann, and when she no longer wanted to work as a prostitute, Riechmann killed her in order to recover insurance proceeds.
Riechmann maintained that they were riding around videotaping Miami’s sights, when they got lost and asked for directions. He contended that the stranger whom they asked for directions fired the shot that killed Kischnick. Reichmann, a German citizen, was convicted of murder and sentenced to death.8 At trial, the state proffered evidence of several German convictions more than 15 years old as impeachment evidence: solicitation of perjury, involuntary manslaughter, and negligent bodily harm connected with an automobile accident, grand theft of an automobile, and forgery. On appeal, the Supreme Court ruled that the trial court did not abuse its discretion in admitting all of the convictions (with the exception of involuntary manslaughter which was “harmless error”), despite the fact that they were so remote:
[W]e do not find error in the admission of Reichmann’s convictions of grand theft, perjury and forgery. Justice was best served by allowing jurors to hear that the man whose critical testimony they were scrutinizing was convicted of these crimes. Although these offenses were somewhat remote in time, the trial judge did not abuse his discretion in concluding that their probative value outweighed the danger of unfair prejudice. (Emphasis added.)
Techniques to Mitigate Criminal History
If your client has a criminal conviction, consider voir dire on the conviction in jury selection. Tell the jury that your client has been convicted of a crime and ask them if they can honestly give him a “fair trial” or a “fair shake.” Many jurors will say that they honestly cannot give a civil witness a “fair trial” if that witness is a convicted criminal. This answer by a juror should be a valid reason to challenge the juror for “cause.”9 In this way, you can eliminate the most damaging potential jurors without using peremptory challenges. In addition to the obvious benefit of “screening” jurors who will be hostile toward your witness, this technique has the added benefit of eliminating your adversary’s element of surprise, since you are preemptively raising the issue of the conviction.
The vast majority of criminal convictions are obtained through plea bargains. One approach to consider is to assert the civil litigant or witness was innocent of the crime to which he or she pleaded guilty and the plea was only as a matter of expediency. For example, if the original charge was a felony carrying a potential substantial prison sentence, perhaps the defendant pleaded guilty to a misdemeanor, along with a sentence of probation. The witness can explain that although innocent of the charge, the witness could not risk the possibility of an erroneous conviction and prison sentence.
The second technique to “explain away” a conviction is the “compelling circumstance” or “justification” defense. Here the witness admits to committing the crime but explains there were extenuating circumstances that made commission of the crime “justifiable.” A typical example would be a defendant who acted in self-defense by punching the “victim” because the “victim” made a racial or religious epithet toward the defendant.
“Born Again” Defense
Finally there is the “born again” defense, whereby the witness confesses culpability for the criminal offense, and takes responsibility for his or her crime, but explains to the jury that he or she has been rehabilitated or “born again,” because jail has made the witness realize the immorality of the criminal actions, or because addiction to drugs or alcohol has been overcome, or perhaps a religious conversion has been undergone. In any event, the witness is now a “new man”; thus, the witness is not really the “same person” who was convicted of the original crime. Thus, the witness highlights the credibility of “new character” by “owning” up to the original crime.
For example, in the case of United States v. Bad Cob, 560 F.2d 877, 883 (8th Cir. 1977), an American Indian, Bad Cob, shot a cow belonging to another Indian “many times” after having “a little too much wine.” Once the cow was shot, the defendant decided to butcher it. His crime was witnessed by a rancher, and the Bureau of Indian Affairs Police arrested Cob. At trial, Cob’s defense counsel introduced a previous third-degree burglary conviction for which he was sentenced to probation for one year. The defendant had successfully completed the probation. Bad Cob was convicted and one of the issues on appeal was the alleged incompetence of his defense counsel at trial. Cob asserted that it was incompetent to bring out the prior third degree burglary conviction on direct because both under South Dakota law and the Federal Rules of Evidence, the successful probation would constitute “the effect of a pardon, annulment or certificate of rehabilitation” and, thus, the conviction would have been inadmissible.
In affirming the conviction, the Eighth Circuit noted that the introduction by a witness himself, on direct, of a prior conviction is a common trial tactic recommended by text writers on trial practice. Although there was a “paucity” of authority to justify the theory of this well-accepted practice, the rationalization was that it served a two-fold purpose: to bring out the witnesses’ “real character of the whole person, particularly his credibility” and to draw the teeth out of the adversary’s probable use of the same evidence on cross examination. The court of appeals, thus, held that defense counsel’s action could be explained and justified by the first of the two reasons, mainly as bolstering the credibility of her client (even though the conviction itself was not admissible). Although in hindsight this may have been a poor tactic, it is nevertheless well recognized and approved.
In introducing a civil witness’ criminal convictions, the trial attorney should be vigilant to observe the applicable rules of pretrial discovery and the rules of evidence at trial. The aggressive lawyer may find a gold mine, however, if he or she discovers and introduces an adverse witness’ criminal convictions. Since many cases hinge on the credibility of the parties and witnesses, introduction of an adverse witness’ criminal convictions that undermines the credibility of that witness may mean the difference between winning and losing.
1The Pew Center on the States, One in 100: Behind Bars in America 2008, pp 5-9; See also United States Department of Justice Office of Justice Programs Bureau of Justice Statistics, Criminal Offenders Statistics, http://www.ojp.usdoj.gov/bjs/crimoff.htm.
3See Instant People Check, http://www.instantpeoplecheck.com.
45 U.S.C.A. §552.
5Fla. Stat. §119.10.
6950 Pennsylvania Avenue, NW, Washington, D.C. 20530-0001.
7320 First Street NW, Washington, D.C. 20534.
8The Federal Republic of Germany filed an amicus curie brief supporting Reichman. The U.S. was seeking the death penalty and Germany does not have capital punishment. Also, Germany claimed that the U.S. law enforcement officials made misrepresentations to German authorities in order to obtain a search warrant for Reichman’s German residence.
9See Fla. R. Civ. P. 1.431(c).
Robert I. Rubin is a shareholder at Becker & Poliakoff in its West Palm Beach office.
This column is submitted on behalf of the Trial Lawyers Section, Robert Earl Mansbach, Jr., chair, and D. Matthew Allen, editor.