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Can a Two-Decade Old Fraud Conviction Be Admitted in a Current Negligence Action?

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Attorney Tom MetierIn McGill v. DIA Airport, 2016 COA 165, November 17, 2016, Trina McGill filed a negligence claim against DIA Airport, saying she had been hit in the head by a side mirror on a DIA Airport Shuttle Bus. About twenty years earlier, plaintiff McGill was convicted of check kiting. Before the negligence trial began, McGill moved to exclude the conviction claiming it was inadmissible under CRE 608(B) and CRE 403. The trial court denied her motion and the evidence of her prior conviction was admissible under CRE 608(B).

At trial, McGill’s attorney, anticipating that the evidence of the check-kiting conviction would be brought up by DIA under cross-examination, asked her about the conviction and the underlying conduct. DIA did also question her about it on cross. The trial court ruled in favor of DIA.

McGill appealed on the grounds the trial court erred in allowing the evidence of her conviction under CRE 608(B). DIA argued that McGill opened the door, introducing the evidence herself. There was an interesting discussion on whether a party’s introduction of evidence in a strategic way waives their right to claim that evidence should be inadmissible. Invited error is the term used by DIA in countering McGill’s claims the evidence is inadmissible. (A party may not complain on appeal of an error that he has invited into the case; the party must live with the consequences of his acts).

McGill asserted that the check kiting or fraud conviction was not probative of her character for truthfulness. The Court of Appeals disagreed. The Court of Appeals pointed out that check fraud is by definition untruthful, and therefore goes to her character for truthfulness.

McGill also claimed the trial court should have examined whether the evidence was admissible under CRE 403. The Court of Appeals disagreed and affirmed the trial court’s verdict in favor of DIA Airport.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.