On the Horns of a Trial Dilemma: Addressing a Prior Conviction on Direct Examination or Waiving the Right to Contest the Admissibility on Appeal
- A recent Superior Court case found the filing of an unsuccessful motion in limine to preclude a prior conviction does not preserve the issue on appeal if the defendant strategically chooses to then introduce the evidence on direct.
- A defendant must now choose whether to preserve the appellate right and allow the opponent to bring up the conviction, or seek to address it during direct, but lose the right to appeal.
The recent Pennsylvania Superior Court case Commonwealth v. Stevenson, 287 A.3d 903 (Pa. Super. 2022), addressed the intersecting issues of how a party may preserve an adverse evidentiary ruling on a motion in limine for appellate review with the competing interests of the trial strategy that the party may seek to pursue as a result of the adverse ruling. Specifically, the Superior Court held that a criminal defendant who testified on direct examination regarding a prior conviction, after the trial court ruled the conviction was admissible pursuant to a motion in limine, waived the right to challenge that ruling because the defendant introduced the evidence himself.
Raheem Stevenson, the defendant, was charged with robbery, burglary, and criminal conspiracy for events occurring on December 3, 2017. Stevenson had previously pled guilty to burglary in 2005. Pennsylvania Rule of Evidence 609 addresses the admissibility of prior criminal convictions for purposes of impeachment. While Pa. R.E. 609(a) allows for the impeachment of a witness with a prior crime involving dishonesty or false statements (crimen falsi) if that conviction or release from confinement is more than ten years old, as was the case in Stevenson, the court is required to conduct a balancing test weighing the probative versus the prejudicial value of admitting the prior conviction. Stevenson made an oral motion to preclude his prior conviction as too remote and, thus, too prejudicial. The court denied the motion. Stevenson was then faced with a common dilemma parties are faced with at trial: bring out the unfavorable evidence on direct examination in an attempt to lessen the impact, or wait to see if the opponent chooses to use the evidence on cross examination and risk appearing less than forthcoming to the jury. In this case, Stevenson chose to address the conviction on direct examination. He was subsequently convicted and, on appeal, claimed that the trial court improperly admitted the conviction without performing the appropriate balancing test.
On appeal, however, the Superior Court first addressed whether the issue of admissibility was appropriately preserved because defendant had introduced the evidence himself on direct. In holding that the defendant did, in fact, waive the right to appeal the initial ruling on the motion in limine by testifying on direct examination about his conviction, the court relied upon the general proposition that a defendant who introduces evidence at trial cannot subsequently claim on appeal that such evidence was improperly admitted. The court also cited to the United States Supreme Court case, Oher v. U.S., 529 U.S. 753 (2000), which interpreted the Federal Rules of Evidence related to impeachment by prior criminal conviction, wherein a 5-4 majority held that a criminal defendant, by choosing to testify and to address a prior conviction on direct examination, was executing a trial strategy and, thus, waived the right to complain on appeal as to the admissibility of the prior conviction.
The Stevenson ruling must now be taken into consideration for any witness with a prior criminal conviction a defendant intends to call on direct examination at trial. Strategically, a defendant can still file a motion in limine seeking to preclude the evidence. However, if that motion is denied, they will have to decide if the trial strategy of bringing the conviction out on direct overrides waiving the potential appellate issue. The ruling should also be taken into consideration when deciding whether or not to call a specific witness. Many case-specific factors will weigh into the decision, including how a jury may view the prior conviction, i.e., will the nature of the conviction likely prejudice the jury such that the appellate right is more importantly preserved, the likelihood of success on appeal, whether there are other facts that are admissible that will make testimony regarding the prior conviction more prejudicial or, conversely, that will cast a witness in a dishonest light if they do not bring the conviction out on direct?
Further, a defendant should also consider withholding filing a motion in limine at all if it is unclear whether the opposing side is aware of the conviction or whether, in fact, they will seek to use the conviction. In this instance, a defendant can seek to rely on Pennsylvania Rule of Evidence 609(b)(2), which requires that, prior to the use of a conviction more than ten years old, the party seeking to introduce the evidence give the adverse party “reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.” If notice was not given prior to the attempt to impeach, in addition to the admissibility objection, the defendant also can raise the procedural objection pursuant to Pa. R.E. 609(b)(2) in an attempt to keep the evidence out while simultaneously preserving the appellate issue. Ultimately, this is a consideration that must now be weighed for any witness with a prior conviction which the defense would normally seek to preclude as either: (1) not a crime of dishonesty or false statement admissible under Pa. R.E. 609(a); or (2) a conviction of more than ten years old where the prejudicial value outweighs any probative effect.
*Beth is a shareholder in our Philadelphia, Pennsylvania, office. She can be reached at 215.575.2599 or EAUnderwood@mdwcg.com.
Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact firstname.lastname@example.org.