1017

Evidence about unrelated criminality is made inadmissible by Rule 404 unless it falls within Rule 609, so I would start each objection the same way -- by objecting that this is irrelevant character evidence which is only admissible if it complies with Rule 609 -- and then explain why it fails Rule 609:

(9) Because the prosecution has not laid an adequate foundation that the conviction or release was within 10 years. Given the high likelihood he did time for attempted murder, we need to know his release date, because it must be within the past 10 years.

(10) Because the conviction is both outside the 10-year rule and the rule specifies that juvenile adjudications are usually inadmissible.

(11) Because Rule 609 admits convictions only, not mere arrests.

(12) Because Rule 609(a) admits only felonies and crimes involving dishonesty and false statement, and this fits neither category.

(13) Because no foundation that this was either a felony conviction or a crime of dishonesty or false statement.

Consider three examples:

a) The defendant went to a shoe store, tried on a pair of Nike Air Jordans, asked if he could step outside to test them on pavement, and then ran off with them. Clearly involves dishonesty because he lied to the salesman about his intent.
b) The witness went to the shoe store at 3 am, broke a window, and took a pair of Air Jordans.  Sneaking around at night sounds like dishonesty and deception to me, but a closer call.
c) The witness was high on drugs, walked into the store at 2:00 pm, and in plain view of several people, grabbed a pair of Air Jordans and walked out. No element of dishonesty and deception involved.

(14) Because the sentence received is not covered by Rule 609, which limits the evidence to the fact of conviction only.

But, go back to question 13 -- when theft is involved, we may have to deviate from the no-details rule and elicit testimony about the way the theft was committed in order to determine if it involved dishonesty. The sentence would still not be admissible, however..

Questions? Email tanford@indiana.edu, and refer to 1017.

End of class.