Thursday, September 08, 2011

DUI Law - Florida Rules Prosecutor Improperly Introduced Felony Conviction

"Have you ever been convicted of a Felony?" said the prosecutor, possessing a NCIC record (but no certified copy of a conviction). "I am not  sure" replied the defendant. In Barcomb v. State of Florida, the trial court held that since the prosecutor had a good faith basis to believe that the defendant had received 5 year's probation based on the NCIC report, there was no error in asking. Further, once the defendant indicated that he was unsure, the topic was dropped completely. Defendant was eventually convicted by the jury of driving while suspended from DUI.
On appeal, the Florida court reversed. It stated that "an attorney may ask a witness, “Have you ever been convicted of a felony?” If the witness answers affirmatively, he may then be asked “How many times?” He may also be asked if he has been convicted of a misdemeanor involving dishonesty, and if he answers “yes”, how many times. See Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), limited by Bobb v. State, 647 So.2d 881 (Fla. 4th DCA 1994)."

The court continued:

“Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit the number of convictions of such crimes.” Cummings, 412 So.2d at 439 (emphasis supplied). Accord, Peoples v. State, 576 So.2d 783 (Fla. 5th DCA 1991), decision approved on other grounds, 612 So.2d 555 (Fla.1992). “The requirement that the attorney have the evidence necessary for impeachment merely assures that [the attorney] will not ask questions which suggest a certain set of facts in the absence of a good faith belief that those facts are true.” Alvarez v. State, 467 So.2d 455, 456 (Fla. 3d DCA), rev. denied, 476 So.2d 675 (Fla.1985), disapproved of on other grounds, Riechmann v. State, 581 So.2d 133 (Fla.1991). Similarly, Charles Ehrhardt, Florida Evidence, section 610.6 (2007 Ed.), supports the need to have both the knowledge and a certified copy of a conviction before the questions may be asked:

Although section 90.610 speaks only to which convictions are admissible to impeach and not to the procedure that should be followed during the trial in examining a witness about prior convictions, Florida appellate decisions have established the method of using the convictions. Questions regarding past convictions should not be asked unless counsel has knowledge of a conviction and possesses a certified copy of the judgment of conviction.

The federal courts are in accord, explaining that “to ask a defendant whether he has had criminal convictions, without possessing a certified copy of the record, is fraught with possibilities of error....” See Ciravolo v. United States, 384 F.2d 54, 55 (1st Cir.1967); cited with approval in U.S. v. Constant, 501 F.2d 1284, 1288 (5th Cir.1974). (bold in original)

Editors Note: The rule requiring a litigant to prove up any fact asserted in a question, in the face of a denial by the witness, is not new. There are many other instances where such a rule can be employed in a DUI case, and defense counel should immediately object and move for a mistrial whenever a pejorative fact is asserted in a question and is thereafter unproven.

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