Preservation of Error – Impeachment By Conviction

Cannon v. Lucas, [Ms. 1190505, 1190725, Aug. 20, 2021] __ So. 3d __ (Ala. 2021). In a per curiam opinion, the Court (Bolin, Shaw, Bryan, and Sellers, JJ., concur; Mendheim and Stewart, JJ., concur in the result; Parker, C.J., dissents; Wise and Mitchell, JJ., recuse) reverses and remands for a new trial a judgment in favor of Zachary Lucas entered on an $18 million jury verdict by the Jefferson Circuit Court on claims arising from a 2017 motor vehicle collision. The trial court granted a motion in limine excluding Plaintiff’s 2018 conviction for forging a prescription. Ms. *5.

The Court first determines the issue was properly preserved for appellate review because the motion “was an absolute motion in limine, rather than a preliminary motion in limine, and no subsequent offer of proof was required to preserve the issue for appellate review.” Ms. *9.

The Court holds “Rule 609 does not impose any requirement that a conviction that is to be used for impeachment purposes must have occurred before the incident that provides the basis for the current proceeding. Therefore, to the extent that the trial court found that Cannon could not introduce evidence of Lucas’s 2018 conviction merely because it occurred after the accident in this case, that finding was erroneous.” Ms. **10-11. The Court “conclude[s] that presenting a forged drug prescription is a crime involving ‘dishonesty or false statement’ and that evidence concerning a conviction for that offense is automatically admissible for impeachment purposes pursuant to Rule 609(a)(2). Therefore, to the extent that the trial court found that Cannon could not introduce evidence of Lucas’s 2018 conviction because it was irrelevant and because the danger of unfair prejudice to Lucas substantially outweighed the probative value of the evidence, those findings were erroneous.” Ms. *15.

Chief Justice Parker’s dissent would have affirmed for failure of the Defendant Cannon to demonstrate prejudicial error. Ms. *17.

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