Impeachment of a civil litigant with criminal convictions.

• Author: Rubin, Robert I.
• Position: Florida

Approximately one in 10 adult male Floridians has a criminal record. (1) Surprisingly, however, most civil litigation attorneys do not routinely investigate whether an adverse party or witnesses have a criminal background. They are overlooking a key item of discovery, because the introduction of a civil litigant's conviction could have a highly prejudicial effect on that person's credibility, since most juries do not look sympathetically toward a litigant who has a criminal background.

Although conventionally one thinks of utilizing a criminal conviction against a civil litigant in a personal injury case, the use of such a conviction is equally useful to impeach a party or witness in a commercial case. This article discusses how to discover whether a civil witness has one or more criminal convictions and the admissibility of such convictions in Florida state and federal courts. In addition, it provides advice on how to minimize the prejudicial effect of such convictions.

Uncovering Criminal Convictions

* Internet Searches--There are several commercial Internet services which investigate a person's conviction background. (2) One company has a Florida statewide and federal database which contains 913,230 arrest records. (3) An Internet criminal record search should be instituted as a regular practice whenever a complaint or answer is received. Internet searches are valuable sources of information and have the added benefit of secrecy, since, unlike subpoenas, no notice is required to the adverse party.

* Sunshine Law Requests--Other excellent sources to uncover criminal convictions are law enforcement and correctional agencies in the place the plaintiff resided in the last 10 years. Counsel should send a letter to the law enforcement agency with a header that indicates the request is a sunshine law request pursuant to F.S. [section] 119.01. Police agencies are usually very responsive to these requests and most have a sunshine information law officer. In addition, both the federal (4) Freedom of Information Act and state (5) sunshine law provide for administrative fines and attorneys' fees for noncompliance. Also, if there is any suspicion that the litigant might have been involved in a federal offense or an out-of-state offense, Freedom of Information Law requests should be served on the Department of Justice (6) and Federal Bureau of Prisons. (7)

* Standard Interrogatory--The next step to uncover criminal convictions is to serve on the opposing party the standard interrogatory number 5 in Appendix I of the Rules of Civil Procedure:

Have you ever been convicted of a crime, other than a juvenile adjudication, which under the law under which you were convicted was punishable by death or imprisonment in excess of one (1) year or involved dishonesty or false statement regardless of the punishment? If so, state as to each conviction the specific crime and the date and place of conviction.

If the adverse parties' answers to interrogatories do not disclose a criminal conviction that you have uncovered through Internet searches or sunshine law requests, counsel can confront the witness with his or her lie in a video-taped deposition or preserve the element of surprise by confronting the witness at trial.

State v. Federal Evidence Code

Florida Evidence Code 90.610 is based upon Federal Rule of Evidence 609 and differs only slightly from that rule concerning the admissibility of a civil litigant's criminal conviction for impeachment purposes. The underlying policy of both rules balances the prejudice of introduction of such a conviction with its probative value. Under the federal rule, a conviction more than 10 years old is not admissible, absent special circumstances. In state court, on the other hand, there is no 10-year demarcation; there is instead a vague "remoteness" test:

Florida Evidence Code 90.610 Conviction of certain crimes as impeachment.

(1) A party may attack the credibility...