Tuesday, December 06, 2005

Yet Another Broad Reading of the "Public Safety" Exception to the Miranda Requirement, and a Thorough Discussion of Fed. R. Evid. 609(a)(1)

United States v. Estrada, Docket No. 02-1543-cr (L) (2d Cir. Nov. 29, 2005) (Winter, Sotomayor, Wesley): This decision (1) upholds evidence seized as a result of the defendant's response to post-arrest but pre-Miranda police questioning under the "public safety" exception first laid out in New York v. Quarles, 467 U.S. 649 (1984); and (2) finds that the district court erred (though harmlessly, of course) in blanketly limiting the impeachment of Government witnesses to the mere fact of their prior felony convictions while excluding the nature / name of those convictions under Rule 609(a)(1) of the Federal Rules of Evidence.

The holding on the Miranda issue is disturbing, though the Circuit's law on the public safety exception was bad to begin with. See Op. at 7-10. Here, police officers executed an arrest warrant for defendant DeJesus in his home, based on two probation violations. They were also aware that he had two priors for assault and heard rumors that he was a drug dealer. A female companion of DeJesus was in the apartment at the time. After handcuffing DeJesus and before administering the Miranda warnings, one officer asked him whether there were any weapons in the apartment. DeJesus said he had a gun in his jacket, which was across the room. Unfortunately for him, heroin was also found in the jacket.

The Circuit ruled that the pre-Miranda questioning was justified under Quarles. The Court announced "three principles" governing the public safety exception: (1) no warnings need precede "questions reasonably prompted by a concern for public safety or for the safety of the arresting officers, so long as the questioning relates to an objectively reasonable need to protect the police or the public from any immediate danger"; (2) the questioning "may not be investigatory in nature or designed solely to elicit testimonial evidence from a suspect"; and (3) pre-Miranda questioning is the exception, not the norm. Op. at 10-11 (emphasis in original). Under these principles and in light of the aforementioned facts, the Court held, the questioning of DeJesus was appropriate. Op. at 12. The Court especially noted that the police were aware of his prior assault convictions; that he was possibly a drug dealer (and guns are tools of that trade); and that another person was in the apartment at the time of arrest. Id.

The Court repeated several times in the opinion that the "exception must not be distorted into a per se rule as to questioning people in custody on narcotics charges," emphasizing that "the exception will apply only where there are sufficient indicia supporting an objectively reasonable need to protect the police or the public from immediate harm." Op. at 13. Cynics may snicker, though, at such high-minded language given the actual outcome.

Rule 609(a)(1): The district court prevented defense counsel from impeaching several Government witnesses with the nature / name of their prior felony convictions -- none of which were crimen falsi governed by Rule 609(a)(2) -- and permitted counsel to elicit only the existence of the prior convictions (and their dates) under Rule 609(a)(1). The judge described this as the standard practice in the District of Connecticut, noting that he was "not aware of any judge in this district that lets in the nature of the conviction rather [than] simply the fact and the date." Op. at 5.

The Circuit quickly condemned this practice. Rather, the "presumption" -- subject to Rule 403 balancing -- is that "the 'essential facts' of a witness's convictions, including the statutory name of each offense, the date of conviction, and the sentence imposed, are included within the 'evidence' that is to be admitted for impeachment purposes" under Rule 609(a)(1). Op. at 17. A district court should exclude evidence of the nature / name of a prior felony conviction for impeachment purposes only if, on the specific facts of the case, Rule 403 balancing so dictates.

And to aid trial courts in their Rule 403 analysis, the Court went on to discuss in some detail how "different felonies, even those that do not constitute crimen falsi [[which must be admitted under Rule 609(a)(2) without 403 balancing)], bear on credibility to varying degrees." Op. at 19. This "gradation among Rule 609(a)(1) crimes, in terms of their bearing on truthfulness," is important because it "lie[s] at the heart of the Rule 403 analysis." Op. at 23.

The Court offered some examples. On the one hand, crimes "ranking low on the scale of probative worth on credibility" include "crimes of violence," "drug crimes, and crimes involving public morality, such as prostitution." Op. at 21-22. On the other hand, crimes "falling outside Rule 609(a)(2) but nonetheless ranking high on the scale of probative worth on credibility" include "theft and escape crimes," "crimes of stealth (e.g., smuggling, burglary)," "crimes that involve evasion of responsibility or abuse of trust" (a "category that includes smuggling or failure to register or report when required" or "sometimes drug importation and even sexual abuse of children in [the witness's] care"), and "crimes requiring planning or preparation" (on the theory that "planning indicates deliberate and injurious violation of basic standards rather than impulse or anger" and "usually involves some element of deceiving the victim"). Op. at 21-23. Moreover, "the gravity of an offense may bear on truthfulness," on the theory that the commission of "more serious offenses indicates a stronger willingness to ignore the law." Op. at 22.

The opinion ends on an excellent defense point -- one we have made in the past but which have fallen on deaf district court ears. In concluding the Rule 609 discussion, the Circuit emphasized that different concerns are at play when it's the Government's witness who is being impeached (as in this case) rather than the defendant's. The Court noted that "the probability that prior convictions of an ordinary government witness will be unduly prejudicial is low in most criminal cases." Op. at 24. This is so because "the behavior of the witness is not in dispute in most cases," and thus "little chance that the trier of fact will misuse the convictions offered as impeachment evidence as propensity evidence." Id. And while prior convictions of a Government witness may sometimes "inflame the jury or invite a propensity inference," the Court emphasized that "impeachment evidence relating to a government witness should be excluded under Rule 609(a)(1) only when there is a real danger that such prejudice substantially outweighs the probative value of a witness's felony convictions as they relate to his or her propensity for truthfulness." Op. at 25. As a result, "district courts must be skeptical when the government objects to impeachment of its witnesses with prior felony convictions and should be reticent to limit such impeachment in the absence of a demonstrable danger of prejudice to the government's interest in a fair trial." Op. at 27 (emphasis added).


Post a Comment

<< Home