Darren Chaker writes that Florida allows to exclude a prior conviction in civil cases. For a conviction to be admissible under Fla.R.Evid §90.610(1)(a), the crime must not have been so remote in time as to have no appreciable bearing on the witness’ present credibility where there is nothing in the record to show that the witness has not reformed. Braswell v. State, 306 So.2d. 609, 613 (App. 1 Dist. 1975). See also Kelly v. State, 311 So.2d 124, 125 (App. 3 Dist. 1975) – citing Braswell; City of Miami v. Ross, 695 So.2d 486, 488 (Fla. App. 2 Dist. 1997) (holding that the trial court did not abuse its discretion by not permitting the defendant (the City of Miami) to impeach the plaintiff with evidence of prior convictions for writing bad checks where the convictions occurred many years ago). Of course Florida allows for juvenile record sealing as well as for adults, thus once records are sealed they are deemed not to exist.
In Ross, the Plaintiff filed a motion in limine seeking to exclude the Plaintiff’s prior convictions for writing bad checks arguing that the convictions were remote in time. Id. at 487. The trial court granted the plaintiff’s motion in limine and excluded the prior convictions as inadmissible. Id. The Third District Court of Appeals held “… that the trial court did not abuse its discretion by not permitting the City to impeach the plaintiff with evidence of prior convictions for writing bad checks where the convictions occurred many years ago.” Id. at 488.
If the witness admits to the number of his convictions, the cross examiner may not ask further questions regarding prior convictions, and in particular the cross examiner may not question the witness as to the nature of his crimes. See Cummings v. State, 412 So.2d 436 (Fla. App. 4th Dist. 1982); Gavins v. State, 587 So.2d 487 (Fla. App. 1st Dist. 1991).
Furthermore, the questioning of a witness concerning prior convictions must follow the proper form. See Brown v. State, 787 So.2d 136 (Fla. App. 4 Dist. 2001). In Brown the court held that the proper method of impeaching a witness with prior convictions is to first ask whether the witness has ever been convicted of a misdemeanor involving dishonesty. Id. at 139. If the witness denies the conviction, the opposing party may produce the record of conviction. Id. Ifthe witness does not admit his prior convictions, the only proper method of impeachment is to introduce certified records of the convictions. Id.
In either event, no further questioning is permitted. Id. See also, Parks v. Zitnik, 453 So. 2d 434 (Fla. App. 2 Dist. 1984); Sneed v. State, 397 So. 2d 931 (Fla. 5th DCA 1981); Reeser v. Boats Unlimited, Inc., 432 So.2d 1346, 1394 (Fla. App. 4 Dist. 1983)
(holding that Florida Statutes Section 90.610 does not permit the elicitation of the nature of the crime, because any additional light on the witnesses’ credibility would not compensate for the possible prejudicial effect on the minds of the jurors).
Of course nothing on this blog should be construed as legal advice and you should consult with an attorney licensed in your state for any advice.
Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination.
In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010)
I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on.
The case has been cited over 196 times as authority, and written about extensively.
* Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009)
* Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010)
* Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010)
* CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007)
My case is active, living and breathing—forever helping people who once felt oppressed.