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Rule inapplicable as witness’s credibility not attacked

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The Indiana Court of Appeals found a trial court didn’t err by not letting a defendant introduce evidence of his brother’s prior robbery because the defendant wasn’t attacking the brother’s credibility.

William R.D. Britt was charged with felony robbery following a robbery at a Fort Wayne store. One of the witnesses, Benjamin Busbee, initially thought one of the robbers may be Britt’s brother, Brandon, who the witness played high school sports with. Britt had dropped out of high school and didn’t play sports, whereas Brandon played many sports.

After seeing a photo array of a more recent photo of Britt, Busbee immediately identified Britt as the robber instead of Brandon. Britt wanted to call Brandon as a witness and question him regarding his prior robbery conviction. The state didn’t plan on impeaching Brandon’s testimony based on his prior conviction and argued Britt shouldn’t be allowed to mention the prior conviction on direct examination.

Britt’s attorney claimed Indiana Evidence Rule 609 contained mandatory language regarding impeachment by former convictions, so he shouldn’t be limited in his questioning of Brandon. Britt’s attorney also said they weren’t calling Brandon solely to impeach his credibility. The trial court declined to let Britt introduce the evidence of the previous robbery. Britt was convicted of Class B felony robbery, Class D felony criminal recklessness, and Class A misdemeanor carrying a handgun without a license.

The appellate court agreed with Britt that the language of Rule 609(a) is mandatory, but it is also expressly limited to when the evidence of the prior conviction is being offered to attack a witness’s credibility, wrote Judge Paul Mathias in William R.D. Britt v. State of Indiana, No. 02A03-1004-CR-253.

“Indeed, Britt used Brandon’s testimony to show that Britt did not play sports in high school, thus calling into question Busbee’s identification of the shorter robber as someone he had played sports with in high school,” wrote the judge. “He therefore had little to gain by attacking Brandon’s credibility.”

In addition, he even conceded on appeal he wasn’t attempting to attack Brandon’s credibility, so Evidence Rule 609(a) is inapplicable.

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  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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