This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 69

IN THE

SUPREME COURT OF THE STATE OF UTAH

ROBBY D. ROBINSON and LISA ROBINSON,

individually and as personal representatives for the heirs of the 

Estate of BRADFORD ROBINSON,

Appellees,

v.

PAUL RAY TAYLOR, M.D. et al.,

Appellant.

No. 20130463

Filed August 11, 2015

Second District, Farmington

The Honorable John R. Morris

No. 090700394

Attorneys:

James R. Hasenyager, Peter W. Summerill, Ogden, 

Matthew J. Morrison, Andrew Tuegel, Waco, TX, 

Donald J. Winder, John W. Holt, Salt Lake City,

for appellees

Michael D. Zimmerman, Troy L. Booher, Julie J. Nelson, Noella A. 

Sudbury, George R. Naegle, Zachary E. Peterson, Cortney Kochevar, 

Salt Lake City, for appellant

Merrill F. Nelson, Alexander Dushku, Tiffany Smith, Salt Lake City, 

for amicus curiae American Medical Association, Utah Hospital 

Association, Utah Medical Association

Paul M. Simmons, Ryan M. Springer, Salt Lake City, for amicus 

curiae Utah Association for Justice

Sean D. Reyes, Att’y Gen., Bridget K. Romano, Solicitor Gen., 

Salt Lake City, for the State of Utah
ROBINSON v. TAYLOR, et al.

Opinion of the Court

JUSTICE PARRISH authored the opinion of the Court, in which CHIEF 

JUSTICE DURRANT, JUSTICE DURHAM, and JUDGE TOOMEY joined.

ASSOCIATE CHIEF JUSTICE LEE filed a dissenting opinion.

Due to his retirement, JUSTICE NEHRING, did not participate herein; 

COURT OF APPEALS JUDGE KATE A. TOOMEY sat.

JUSTICE DENO G. HIMONAS became a member of the Court on 

February 13, 2015, after oral argument in this matter, and 

accordingly did not participate.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 Robby and Lisa Robinson brought this medical malpractice 

lawsuit against Dr. Paul Taylor for the wrongful death of their 

deceased father, Brad Robinson. After the jury found that Dr. Taylor 

negligently caused Mr. Robinson’s death, Dr. Taylor appealed, 

challenging the trial court’s decision to admit into evidence Dr. 

Taylor’s felony drug conviction.1 We agree with Dr. Taylor and hold 

that evidence of Dr. Taylor’s prior criminal conviction was 

inadmissible under rules 608 and 609 of the Utah Rules of Evidence. 

Accordingly, we reverse and remand for a new jury trial.

BACKGROUND

¶2 Dr. Taylor began treating Mr. Robinson in 2003 for chronic 

back pain and degenerative disc disease. Over the next three years, 

Dr. Taylor prescribed various pain medications to treat Mr. 

Robinson’s pain, including methadone, Lortab, and Demerol. Mr. 

1 Dr. Taylor also challenges the trial court’s decision allowing the 

jury to consider punitive damages and its refusal to apply the health 

care malpractice damages cap to the jury award. See UTAH CODE

§ 78B-3-410. However, after oral argument, the Robinsons filed a 

suggestion of mootness indicating that they are no longer seeking 

punitive damages. We therefore do not address that issue. Because 

we reverse and vacate the jury award, we need not address the issue 

of the damages cap. However, we note that our recent decision in 

United States v. Smith, 2015 UT 68, ___ P.3d ___ provides guidance on 

that issue to assist the trial court on remand. 

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Opinion of the Court

Robinson developed a drug tolerance that required successively 

larger doses of medication to ameliorate his pain.

¶3 During Mr. Robinson’s last visit to Dr. Taylor on May 26, 

2006, Dr. Taylor issued a written prescription to Mr. Robinson for a 

daily dosage of 140 milligrams of methadone. Two weeks later, Mr. 

Robinson was found dead at his home. The medical examiner 

determined that the cause of death was “acute methadone toxicity.” 

The exact date of Mr. Robinson’s death could not be determined, but 

evidence and medical testimony suggest he died on June 1 or 2, 

roughly a week after his last visit to Dr. Taylor. The Robinsons 

brought this suit against Dr. Taylor for wrongful death caused by 

medical malpractice.

¶4 During his deposition, Dr. Taylor testified that he had given 

Mr. Robinson oral dosing instructions for the methadone that 

differed from those reflected in the written prescription. Dr. Taylor 

argued that Mr. Robinson was at fault for his death because he failed 

to follow these oral instructions. 

¶5 After Mr. Robinson’s death, but prior to trial, Dr. Taylor was 

charged under federal law for illegally distributing a controlled 

substance. This charge was unrelated to Mr. Robinson’s death. It

arose when an individual requested a prescription for pain 

medication to help with a sport-related injury. Dr. Taylor met the 

individual in a parking lot on more than one occasion to give him 

prescriptions in exchange for cash. Dr. Taylor was charged with two 

federal felony drug counts for these acts. He subsequently pled 

guilty to one felony drug charge and was sentenced to prison. Due 

to his prison sentence, Dr. Taylor was unable to attend trial, and in 

lieu of direct examination, a previously recorded deposition was 

read to the jury.

¶6 During trial, the Robinsons sought to introduce evidence of 

Dr. Taylor’s felony conviction in order to impeach his deposition 

testimony as to his alleged oral dosing instructions. Dr. Taylor filed 

a motion in limine to exclude evidence of the conviction. The trial 

court denied the motion, and Dr. Taylor’s deposition describing the 

events surrounding his felony conviction was read into the record.

¶7 The jury found that Dr. Taylor breached the standard of care 

and that this breach was the proximate cause of Mr. Robinson’s 

death. The jury awarded the Robinsons over $3 million in general 

damages and $300,000 in punitive damages. Dr. Taylor appealed. 

We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(j).

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Opinion of the Court

STANDARD OF REVIEW

¶8 “[W]e grant a trial court broad discretion to admit or 

exclude evidence and will disturb its ruling only for abuse of 

discretion.” Daines v. Vincent, 2008 UT 51, ¶ 21, 190 P.3d 1269. Our 

review of the trial court’s exercise of its discretion includes ensuring 

“that no mistakes of law affected a lower court’s use of its 

discretion.” State v. Barrett, 2005 UT 88, ¶ 17, 127 P.3d 682.

ANALYSIS

I. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING 

EVIDENCE OF DR. TAYLOR’S FELONY CONVICTION

¶9 Dr. Taylor argues that the trial court abused its discretion 

when it admitted his felony conviction for impeachment purposes. 

Dr. Taylor contends that his conviction was not admissible because 

his credibility was not at issue and because the prejudicial effect of 

the admission substantially outweighed its probative value. We 

agree and hold that the trial court erred when it admitted Dr. 

Taylor’s criminal conviction. 

¶10 “When interpreting an evidentiary rule, we apply principles 

of statutory construction. . . . Thus, we first look to the plain 

language of the rule.” State v. Mead, 2001 UT 58, ¶ 44, 27 P.3d 1115 

(alteration in original) (internal quotation marks omitted). We may 

also rely on interpretations of similar federal rules by federal courts 

to assist our own interpretation. See id. ¶ 45. In this case, the trial 

court admitted evidence of Dr. Taylor’s felony conviction under 

rules 608(b), 609(a)(1), and 609(a)(2) of the Utah Rules of Evidence. 

We address each in turn.

A. Rule 608(b)

¶11 Rule 608(b) governs evidence relating to a witness’ character 

for truthfulness. The trial court admitted evidence of Dr. Robinson’s 

felony conviction, reasoning that “writing a prescription under the 

false pretense of a doctor-patient relationship is probative of his 

character for truthfulness.” But Dr. Taylor contends that rule 608 

does not apply because it only governs admission of impeachment 

evidence for those acts that have not resulted in the conviction of a 

crime. We agree and hold that rule 608(b) permits impeachment 

only by specific acts that did not result in a criminal conviction, 

while rule 609 governs evidence relating to impeachment by a 

criminal conviction.

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Opinion of the Court

¶12 Whether conduct resulting in a criminal conviction may be 

admitted under rule 608(b) is an issue of first impression for this 

court. We recognize that the rules are not free from ambiguity on 

this matter, but the structure of our rules of evidence drives our 

conclusion. We begin with a discussion of the general prohibition 

against the admission of specific instances of conduct to prove 

character.2

¶13 As a general matter, the Utah Rules of Evidence prohibit the 

admission of “[e]vidence of a person’s character or character trait” in 

order “to prove that on a particular occasion the person acted in 

conformity with [that] character or trait.” UTAH R. EVID. 404(a)(1). 

This prohibition includes evidence of specific instances of conduct. 

See id. 405(b) (articulating when specific instances of conduct may be 

used).

¶14 Rules 608 and 609 are both exceptions to rule 404 and apply 

when specific instances of a witness’ conduct may bear on the

witness’ character for truthfulness.

¶15 Rule 608(b) provides, 

Except for a criminal conviction under Rule 609, 

extrinsic evidence is not admissible to prove specific 

instances of a witness’s conduct in order to attack or 

support the witness’s character for truthfulness. But 

the court may, on cross-examination, allow them to be 

inquired into if they are probative of the character for 

truthfulness or untruthfulness of . . . the witness.

Accordingly, rule 608 allows specific instances of conduct to be 

inquired into on cross-examination if they are probative of a witness’

character for truthfulness.

2 Both rules 608 and 609 are identical to the respective federal 

rules. When our rules of evidence are identical to the federal rules, 

we generally seek “to achieve uniformity between [our] rules and 

the federal rules”; accordingly, “this Court looks to the

interpretations of the federal rules by the federal courts to aid in 

interpreting the Utah rules.” State v. Gray, 717 P.2d 1313, 1317 (Utah 

1986); see also State v. Rothlisberger, 2006 UT 49, ¶¶ 14–20, 147 P.3d 

1176 (relying on federal advisory committee notes as an interpretive 

aid). 

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Opinion of the Court

¶16 Rule 608 works in coordination with rule 609, which applies 

when “attacking a witness’s character for truthfulness by evidence of 

a criminal conviction.” Id. 609(a). Under both rules, specific 

instances of conduct are admissible for the purposes of attacking 

credibility. Conduct not resulting in a conviction may be inquired 

into on cross-examination under rule 608, while rule 609 allows 

evidence of conduct that has resulted in a conviction. These rules are 

mutually exclusive: When specific instances of conduct are the 

subject of a conviction, they are governed exclusively by rule 609. 

And if the specific acts do not involve a conviction, they are 

governed by rule 608. Cf. 28 CHARLES ALAN WRIGHT & VICTOR J.

GOLD, FEDERAL PRACTICE AND PROCEDURE § 6133 (2d ed. 2012) 

(“[C]riminal acts that have not been made the subject of a 

prosecution and conviction are controlled by Rule 608(b), not Rule 

609.”).

¶17 The opening phrase of rule 608(b) makes this explicit. The 

rule begins with the phrase “[e]xcept for a criminal conviction under 

Rule 609.” This language specifically excludes rule 608’s application 

to specific instances of conduct that result in a criminal conviction.3 

See WRIGHT & GOLD, supra, § 6117 (“[T]he first sentence of 

subdivision (b) specifically states that the admission of [conviction] 

evidence is determined under Rule 609, not Rule 608.”). This 

construction of rule 608(b)’s introductory phrase is supported by the 

committee note to the federal rule, which provides, “Particular 

instances of conduct, though not the subject of criminal conviction, may 

be inquired into on cross-examination.” FED. R. EVID. 608 advisory 

committee’s note (emphasis added). 

¶18 Rule 609 is the only rule that governs the admission of 

evidence of a criminal conviction. It applies when “attacking a 

3 The 2003 version of rule 608 stated this more directly: “Specific 

instances of the conduct of a witness, for the purpose of attacking or 

supporting the witness’ credibility, other than conviction of a crime as 

provided in Rule 609, may not be proved by extrinsic evidence. They 

may, however, . . . be inquired into on cross examination of the 

witness . . . .” UTAH R. EVID. 608(b) (2003) (emphasis added). The 

changes from this version to the current language were “intended to 

be stylistic only. There [was] no intent to change any result in any 

ruling on evidence admissibility.” UTAH R. EVID. 608 advisory 

committee note.

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Opinion of the Court

witness’s character for truthfulness by evidence of a criminal 

conviction.” UTAH R. EVID. 609(a). And rule 609 gives 

comprehensive treatment as to the admissibility of evidence of 

conviction. For instance, it distinguishes the admission of a criminal 

conviction for a criminal defendant from other witnesses, id.

609(a)(1)(B), and it differentiates felonies and misdemeanors, id.

609(a)(1). Rule 609 also governs other evidentiary issues arising with 

prior convictions, such as the effects of a pardon, annulment, 

certificate of rehabilitation, juvenile adjudication, and the pendency 

of an appeal. Id. 609(c)–(e). Rule 608 is devoid of any guidance on 

these important issues.

¶19 A majority of the federal appellate courts that have 

discussed the interplay between federal rules 608 and 609 have

interpreted them to distinguish between those specific instances of 

conduct that lead to a conviction and those that do not. For example, 

in United States v. Osazuwa, 564 F.3d 1169, 1173 (9th Cir. 2009), the 

court held that “[e]vidence relating to a conviction . . . is treated 

solely under Rule 609” and that “Rule 608 applies only to specific 

instances of conduct that were not the basis of a criminal conviction.” 

Id. at 1173. The court further recognized that admitting evidence 

under rule 608 as “a bad act resulting in a conviction would be, in a 

sense, count[ing] [the conviction] twice—once by presenting the bad 

act itself and once by presenting the conviction that flowed from it.” 

Id. at 1174. The court also observed, “The risk of unfair prejudice or 

undue emphasis is the reason why Rule 609 and its related case law 

carefully guide the admission of prior convictions and their 

underlying facts.” Id. at 1174–75.4

4 Other federal appellate courts have likewise observed that rule 

608(b) is limited to bad acts that do not result in a felony conviction. 

E.g., United States v. Lightfoot, 483 F.3d 876, 881 (8th Cir. 2007) (“Rule 

608(b) . . . confers upon district courts discretion to permit witnesscredibility questioning on specific bad acts not resulting in a felony

conviction.”); United States v. Whitmore, 359 F.3d 609, 620 (D.C. Cir. 

2004) (“[Rule] 608(b) allows a witness’s credibility to be attacked 

based on misconduct that, while not constituting a criminal 

conviction, nevertheless tends to show that the witness is 

untruthful.”); United States v. Parker, 133 F.3d 322, 327 (5th Cir. 1998) 

(“Prior bad acts that have not resulted in a conviction are admissible 

under [Rule] 608(b) if relevant to the witness’s character for 

7

 (continued . . . )
ROBINSON v. TAYLOR, et al.

Opinion of the Court

¶20 Secondary sources further support the same conclusion. For 

instance, Professors Wright and Gold state, “Rule 608 does not 

regulate the admissibility of criminal conviction evidence, which is 

the subject of Rule 609.” WRIGHT & GOLD, supra, § 6111 n.1. They

also recognize that “[s]ubdivision (b) specifically exempts from its 

coverage evidence of specific instances of witness conduct in the 

form of criminal convictions.” Id. § 6113; see also R. COLLIN 

MANGRUM & DEE BENSON, MANGRUM & BENSON ON UTAH EVIDENCE

479 (2014) (arguing that treating evidence of specific acts relating to a 

criminal conviction exclusively under rule 609 “is arguably [a] better 

rule and reconciles the differences [between rules 608 and 609]”).

¶21 We agree and accordingly hold that rule 608(b) permits 

impeachment only by specific acts that did not result in a criminal 

conviction. Therefore, the admission of Dr. Taylor’s conviction 

under rule 608 was an abuse of discretion.

B. Rule 609(a)(2)

¶22 We now move to consider the other rule under which the 

district court admitted evidence of Dr. Taylor’s conviction, rule 609. 

Rule 609(a) has two subsections governing admission of evidence of 

a criminal conviction: subsection 609(a)(1) grants courts discretion to 

admit some crimes and subsection 609(a)(2) requires automatic 

admission for certain other crimes. We begin with Dr. Taylor’s

challenge to the automatic admission of his criminal conviction 

under rule 609(a)(2). Dr. Taylor contends that its admission was an 

abuse of discretion because the rule only allows automatic admission 

of evidence when the criminal elements require proving a dishonest 

act or a false statement and unlawful distribution of a controlled 

substance involves neither. We agree. Only when the elements of 

the crime require proving a dishonest act or false statement can a 

prior conviction be automatically admitted into evidence.

¶23 The trial court held that Dr. Taylor’s criminal conviction 

must be automatically admitted into evidence because “writing a 

prescription under the false pretense of the existence of a doctorpatient relationship . . . pertains to a crime involving a dishonest act 

truthfulness or untruthfulness.”); United States v. Smith, 80 F.3d 1188, 

1193 (7th Cir. 1996) (“[T]he plain language of [rule 608(b)] allows for 

cross-examination of matters ‘other than conviction of crime.’”); 

Mason v. Texaco, Inc., 948 F.2d 1546, 1556 (10th Cir. 1991).

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Opinion of the Court

or false statement.” But this is a misapplication of the rule. 

Although a previous version of rule 609 required the admission of a 

prior criminal conviction when the crime “involved dishonesty or 

false statement,” UTAH R. EVID. 609(a)(2) (2010), our current rule has 

stricter requirements for mandatory admission of criminal 

convictions.

¶24 The current version of rule 609(a)(2) of the Utah Rules of 

Evidence provides that

for any crime regardless of the punishment, the 

evidence must be admitted if the court can readily 

determine that establishing the elements of the crime 

required proving—or the witness’s admitting—a 

dishonest act or false statement. 

Accordingly, rule 609(a)(2) applies to a narrow subset of criminal 

convictions.

¶25 Under rule 609(a)(2), only those crimes involving a statutory 

offense that require proving a dishonest act or false statement as an 

element of the crime are to be automatically admitted into evidence. 

The phrase “dishonest act or false statement” applies to crimes “in 

the nature of crimen falsi[,] the commission of which involves some 

element of untruthfulness, deceit, or falsification bearing on the 

accused’s propensity to testify truthfully.”5 FED. R. EVID. 609

advisory committee’s note (quoted approvingly in State v. Bruce, 779 

P.2d 646, 654 (Utah 1989)). Thus, it is the elements of the criminal act 

that determine its admissibility, not the manner in which the offense 

5 We have already recognized that “federal courts and most state 

courts are unwilling to conclude that offenses such as . . . narcotic 

violations are per se crimes of dishonesty or false statement.” State v. 

Bruce, 779 P.2d 646, 655 (Utah 1989) (internal quotation marks 

omitted); see also Gregory v. State, 616 A.2d 1198, 1204 (Del. 1992) 

(holding that the elements of the crime of possession with intent to 

deliver “require no proof of conduct involving lying, deceiving, 

cheating, stealing or defrauding”); State v. Zaehringer, 325 N.W.2d 

754, 756 (Iowa 1982) (distribution offenses do not involve “deceit, 

fraud, cheating, or stealing”); State v. Hardy, 946 P.2d 1175, 1178 

(Wash. 1997) (“Drug convictions are not crimes of ‘dishonesty or 

false statement’ like perjury or criminal fraud and thus [rule 

609(a)(2)] does not apply.”).

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Opinion of the Court

is committed. See United States v. Lewis, 626 F.2d 940, 946 (D.C. Cir. 

1980).

¶26 While it is possible that distributing a controlled substance 

may be done in a deceitful manner, the offense for which Dr. Taylor 

was convicted, 21 U.S.C. § 841(a), does not include elements of a 

dishonest act or false statement as part of the statutory offense.6 See 

Lewis, 626 F.2d at 946 (holding that 21 U.S.C. § 841(a) does not 

“involve ‘dishonesty or false statement’ within the meaning of Rule 

609(a)(2)”). Accordingly, admission of Dr. Taylor’s prior conviction 

of a narcotics violation was improper under rule 609(a)(2).

C. Rule 609(a)(1)(A)

¶27 The trial court also admitted evidence of Dr. Taylor’s 

criminal conviction under rule 609(a)(1)(A). This rule allows a party 

to “attack[] a witness’s character for truthfulness by evidence of a 

criminal conviction.” UTAH R. EVID. 609(a)(1). But in a civil case, a 

felony conviction “must be admitted[] subject to Rule 403.” 

Id. 609(a)(1)(A). Rule 403, provides that “[t]he court may exclude 

relevant evidence if its probative value is substantially outweighed 

by a danger of . . . unfair prejudice.”7 Dr. Taylor argues that 

admission of his conviction under this rule was also an abuse of 

6 The elements of 21 U.S.C. § 841(a) are (1) “knowingly or 

intentionally” (2) ”manufactur[ing], distribut[ing], or dispens[ing], 

or possess[ing] with intent to manufacture, distribute, or dispense,” 

(3) “a controlled substance.” See 21 U.S.C. § 841.

7 The parties disagree over whether we should apply the rule 

403 balancing factors articulated in State v. Banner, 717 P.2d 1325, 

1334 (Utah 1986). In Banner we identified factors “to be considered 

when balancing probative value [of a prior conviction] against [its] 

prejudicial effect.” Id. These factors were the nature of the crime, the 

recentness of the prior conviction, the similarity between the prior 

and charged crime, the importance of the credibility issue, and the 

need for the accused’s testimony. Id. Banner was a criminal case; 

and, in any event, we have yet to apply these factors in any civil 

case. It suffices here to echo our recent explanation in State v. Lucero, 

“It is . . . unnecessary for courts to evaluate each and every [Banner] 

factor and balance them together in making their [rule 403] 

assessment. This is because courts are bound by the text of rule 403, 

not [a] limited list of considerations.” 2014 UT 15, ¶ 32, 328 P.3d 841.

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discretion because Dr. Taylor’s credibility was not at issue. He 

therefore reasons that the evidence was not probative and 

substantially prejudiced the jury. The Robinsons respond that Dr. 

Taylor put his credibility at issue by claiming to have given Mr. 

Robinson undocumented oral dosing instructions. Since both Mr. 

Robinson, who is deceased, and Dr. Taylor, who was imprisoned, 

were unavailable for trial, they reason that the only avenue left for 

them to attack Dr. Taylor’s testimony regarding the dosing 

instructions was to impeach his credibility. We agree with Dr. 

Taylor and hold that the district court abused its discretion by 

admitting Dr. Taylor’s prior criminal conviction under rule 

609(a)(1)(A) of the Utah Rules of Evidence because the danger of 

unfair prejudice substantially outweighs any probative value it may 

have.

1. Dr. Taylor’s Criminal Conviction Had Minimal Probative Value

¶28 “The probative value of evidence is judged by the strength 

of the evidence[,] its ability to make the existence of a consequential 

fact either more or less probable[,] and the proponent’s need for the 

evidence.” State v. Johnson, 784 P.2d 1135, 1140 (Utah 1989) (footnote 

omitted) (internal quotation marks omitted). Dr. Taylor contends 

that his felony conviction had little probative value because it was 

not a crime of dishonesty admissible under rule 609(a)(2). Although 

this may be true, the probative value of a crime is not determined 

solely on whether the crime should have been admitted under rule 

609(a)(2). See United States v. Lipscomb, 702 F.2d 1049, 1057 (D.C. Cir. 

1983) (en banc) (“[C]rimes of stealth (e.g., smuggling, burglary), 

while not quite crimes of ‘dishonesty or false statement,’ do reflect 

lack of credibility and should be admitted unless significantly 

prejudicial.”). Indeed, the existence of rule 609(a)(1) indicates that 

any felony conviction is “at least somewhat probative of a witness’s 

propensity to testify truthfully.” United States v. Estrada, 430 F.3d 

606, 617 (2d Cir. 2005); accord Lipscomb, 702 F.2d at 1062. Even 

though Dr. Taylor’s criminal conviction did not involve a crime of 

dishonesty, his willingness to violate the law does cast some doubt 

on his character for truthfulness. Although we acknowledge the 

general probative value of a prior criminal conviction, we conclude 

that its admission in this case was an abuse of discretion because 

whether Dr. Taylor gave the oral dosing instructions to Mr. 

Robinson was not a “consequential fact.”

¶29 The Robinsons suggest that they needed to introduce 

evidence of the conviction to rebut Dr. Taylor’s testimony that he 

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Opinion of the Court

gave oral dosing instructions to Mr. Robinson that differed from

those reflected in the written prescription. But it is apparent from 

the record that Dr. Taylor’s character for truthfulness was, at best, 

only a tangential issue. Indeed, the Robinsons argued that Dr. 

Taylor was negligent regardless of which dosing instructions were 

given. For example, during opening arguments, the Robinsons 

noted that “no matter how you slice it, the evidence is going to show 

[that Mr. Robinson] took th[e] methadone as prescribed or less than 

prescribed and still suffered [a] fatal consequence.” And the 

Robinsons’ own expert opined that Mr. Robinson likely followed Dr. 

Taylor’s oral instructions. In short, whether Dr. Taylor was telling 

the truth about the oral dosing instructions was inconsequential to 

the case and, therefore, there was no real need to impeach Dr. 

Taylor’s credibility. 

¶30 Because the jury’s determination of negligence did not turn 

on the instructions, evidence of Dr. Taylor’s conviction was only 

minimally probative. We now consider whether that conviction 

evidence was sufficiently prejudicial to substantially outweigh its 

probative value.

2. Admission of Dr. Taylor’s Criminal Conviction Was Unfairly 

Prejudicial

¶31 Dr. Taylor argues that the admission of his conviction was 

unfairly prejudicial because it tempted the jury to find him negligent 

simply “because [he] had been convicted of criminal conduct.” The 

Robinsons argue that we should defer to the trial court’s 

determination of prejudice and that admission of Dr. Taylor’s 

conviction was not sought for its prejudicial effect. 

¶32 Conviction evidence is unfairly prejudicial when it is 

“inflammatory in the sense that the jury may use the conviction 

against the defendant for purposes other than determining the 

defendant’s credibility, and therefore would tend to induce the jury 

to render a verdict outside the relevant substantive evidence.” State 

v. Slowe, 728 P.2d 110, 112–13 (Utah 1985). We therefore focus not on 

general prejudice, but only on “unfair” prejudice. See Robinson v. AllStar Delivery, Inc., 1999 UT 109, ¶ 28, 992 P.2d 969 (“If Rule 403 

simply prohibited prejudicial evidence, hardly any evidence would 

be admissible.”). Accordingly, “[t]he critical question in a rule 403 

analysis for unfair prejudice is whether [the evidence] is so 

prejudicial that the jury will be unable to fairly weigh the evidence.” 

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State v. Jones, 2015 UT 19, ¶ 30, 345 P.3d 1195 (internal quotation 

marks omitted).

¶33 Although many types of evidence pose a risk of unfair 

prejudice, conviction evidence, in particular, carries with it unique 

and inherent danger of unfair prejudice. In Old Chief v. United States,

519 U.S. 172, 180 (1997), the Supreme Court identified various 

“improper grounds” on which a jury could base its decision when 

presented with conviction evidence. For instance, the jury might 

generalize a defendant’s earlier conviction into “raising the odds that 

he did the later bad act now” at issue. Id. The jury might also base 

its decision on the improper grounds that a convict deserves 

punishment, even if it is uncertain of the convict’s liability or guilt in 

the instant case. Id. at 181. 

¶34 In this case, details about Dr. Taylor’s conviction had the 

potential to lure the jury into declaring fault on a ground different 

from the Robinsons’ allegation of negligence. The Robinsons 

provided a detailed narrative of Dr. Taylor selling oxycodone in a 

parking lot. The narrative is loaded with extraneous meaning that 

provokes imagery of a shady doctor abusing his authority to profit 

as a part-time drug dealer. Because this depiction is so contrary to 

our view of the principled and professional physician who 

thoroughly diagnoses his patients in a traditional office space, it 

immediately elicits an emotional response. The imagery it invokes 

entices a jury to reason that Dr. Taylor is a bad doctor because he is a 

bad person.

¶35 Both Dr. Taylor’s prior conviction and the negligence claims 

at issue here involve questionable prescriptions. The close similarity 

between the parking lot prescriptions and the prescription at issue in 

this case increase the risk of unfair prejudice. The jury could have 

improperly inferred from the conviction that Dr. Taylor was willing 

to prescribe dangerous medications without exercising proper 

diligence. And this improper inference speaks directly to the 

question of Dr. Taylor’s lack of due care, which the jury had to 

specifically determine in finding negligence.

¶36 Finally, even had the jury believed that Dr. Taylor had 

altruistic motives in helping a stranger in pain, it still could readily 

draw the improper inference that the details of the conviction 

demonstrated Dr. Taylor’s weakness of not being able to say “no” to 

demanding patients. Thus, it would be easy to picture Dr. Taylor 

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Opinion of the Court

succumbing to a drug-dependent Mr. Robinson insisting on a 

dangerously high dose of methadone.

¶37 In short, the inferences to be drawn from the evidence of Dr. 

Taylor’s prior conviction may have led the jury to conclude that Dr. 

Taylor should be punished, regardless of his liability in this 

particular case. This risk “creat[ed] a prejudicial effect that 

outweighs ordinary relevance.” Id. (internal quotation marks 

omitted).

¶38 In summary, admission of Dr. Taylor’s conviction 

substantially increased the likelihood of the jury finding negligence 

on an improper ground, therefore posing a significant danger of 

unfair prejudice. Given that the Robinsons had no real need for the 

conviction evidence, we hold that the probative value of Dr. Taylor’s 

criminal conviction was substantially outweighed by the risk of 

unfair prejudice and that the trial court therefore abused its 

discretion in admitting the evidence under rule 609(a)(1)(A). 

II. ADMISSION OF DR. TAYLOR’S CONVICTION WAS NOT 

HARMLESS ERROR

¶39 Having concluded that the trial court abused its discretion 

in admitting the conviction evidence, we now turn to the question of 

whether that error was harmless. “The test for harmless error in 

cases involving an erroneous failure to exclude prior convictions is 

whether, absent the error, there was a reasonable likelihood of a 

more favorable result for [the party].” State v. Lanier, 778 P.2d 9, 11 

(Utah 1989). Therefore, “trial court errors will require reversal only 

if [our] confidence in the jury’s verdict is undermined.” Wilson v. 

IHC Hosps., Inc., 2012 UT 43, ¶ 24, 289 P.3d 369 (alteration in original) 

(internal quotation marks omitted). 

¶40 In this case, our confidence in the jury’s verdict is 

sufficiently undermined to warrant a new trial. As discussed above, 

admission of the criminal conviction unfairly prejudiced Dr. Taylor. 

And that prejudice created a reasonable likelihood that the jury 

generalized Dr. Taylor’s criminal act, concluding that he was a bad 

person who needed to be punished. Moreover, the jury may have 

concluded that even if Dr. Taylor was not at fault in this case, they 

could ensure he never again wrote an illegal prescription. Indeed, 

the Robinsons capitalized on this line of thought. In their closing 

argument, they highlighted that “Dr. Taylor is a convicted felon,

convicted of unlawfully selling prescriptions for oxycodone in 

parking lots.” Explaining to the jury that Dr. Taylor was a 

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A.C.J. LEE, dissenting

“convicted felon” is one thing under rule 609(a)(1), but coloring that 

fact with the how, what, and where of the conviction, including 

mentioning that he “sold” the prescriptions, may have allowed the 

colorful details of a conviction narrative to pervade the minds of 

jurors.

¶41 The prejudicial impact of the evidence undermines our 

confidence in the verdict. The specific details of Mr. Robinson’s 

death and drug consumption behavior are largely unknown, and 

without the admission of Dr. Taylor’s prior criminal conviction, 

there is a reasonable likelihood of a more favorable result for Dr. 

Taylor. Because the impermissible details of the conviction could 

have reasonably impacted the jury’s assessment of negligence, we 

vacate the jury’s verdict and remand for a new trial.

CONCLUSION

¶42 The trial court abused its discretion in admitting evidence of 

Dr. Taylor’s prior conviction under rules 608 and 609 of the Utah 

Rules of Evidence. Rule 608 does not govern admission of evidence 

of a criminal conviction, and rule 609(a)(2) does not require the 

automatic admission of a conviction of narcotics distribution. We 

also hold that the probative value of Dr. Taylor’s criminal conviction 

was substantially outweighed by the risk of unfair prejudice. These 

abuses of discretion sufficiently undermine our confidence in the 

jury’s decision. Therefore, we vacate the jury verdict and remand 

the case for a new trial.

———————

ASSOCIATE CHIEF JUSTICE LEE, dissenting:

¶43 Plaintiffs’ medical malpractice claim alleged negligence by Dr. 

Paul Taylor in his prescription of an unreasonable dose of 

methadone leading to the death of Brad Robinson. In support of this 

claim, plaintiffs presented expert testimony challenging the 

reasonableness of the dosage on Taylor’s written prescription.

¶44 Taylor offered two responses. First, Taylor proffered his own 

testimony (through a deposition transcript) that he had given special 

dosing instructions to Robinson—instructions that directed 

Robinson to take less than the prescribed amount initially, and to go 

up to the prescribed dosage only if the lower dosage was 

insufficient. At trial, Taylor asserted that this ameliorated any 

alleged negligence in the written prescription, in that the oral 

instructions were reasonable and that Robinson was at fault for 

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ROBINSON v. TAYLOR, et al.

A.C.J. LEE, dissenting

failing to follow the oral instructions. Second, Taylor presented 

expert testimony (from Dr. Long) supporting the reasonableness of 

the methadone dosage on the written prescription. Dr. Long’s 

testimony indicated that although the methadone dosage was 

unusual, it was necessary (and reasonable) for this patient given his 

high level of tolerance for pain medication. 

¶45 Plaintiffs, in turn, challenged Taylor’s assertions regarding the 

oral dosing instructions. They first alleged that no such instructions 

were given—noting that Taylor’s testimony was the only evidence of 

such instructions, and questioning his credibility in light of his prior 

felony conviction (among other things). As a fallback, plaintiffs also 

asserted that even the alleged oral dosing instructions were 

unreasonable.

¶46 The jury entered a verdict in favor of the plaintiffs. It found 

that Taylor had breached the standard of care and that his breach 

was the cause of Robinson’s death. And it awarded the Robinsons $3 

million in general damages. The verdict gave no indication of the 

specific basis of the jury’s determination of negligence, however. 

Thus, there is no way to determine whether the jury accepted or 

rejected Taylor’s assertion that he gave oral dosing instructions, or 

whether it reached the question of whether the oral dosing 

instructions were unreasonable. 

¶47 The majority reverses and remands for a new trial. It does so 

on the basis of its determination of error in the admission of 

evidence of a prior criminal conviction of Taylor, which was 

admitted for the purpose of allowing the plaintiffs to challenge his 

credibility. See supra ¶ 28. I agree with the court’s analysis under 

rules 608(b) and 609(a)(2). The prior conviction was not properly 

admissible under either of these rules, for reasons articulated by the 

court. 

¶48 I respectfully dissent, however, because I disagree with the 

court’s analysis and holding under rule 609(a)(1)(A). I would affirm 

the district court’s admission of Taylor’s prior conviction under the 

abuse of discretion standard under this rule.

¶49 The majority deems Taylor’s conviction for distribution of a 

controlled substance “minimally probative.” Supra ¶ 30. It bases that 

conclusion on the determination that Taylor’s testimony about oral 

dosing instructions was somehow “inconsequential to the case.” 

Supra ¶ 29. And in light of the purportedly “tangential” nature of 

Taylor’s testimony, the majority concludes that “there was no real 

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A.C.J. LEE, dissenting

need to impeach Dr. Taylor’s credibility,” and thus no basis for 

assigning any significant probative value to Taylor’s conviction. 

Supra ¶ 29.

¶50 In sum, the majority’s reasoning is as follows: (1) Taylor’s 

dosing instructions were inconsequential to the jury’s finding of 

negligence; (2) the injection of Taylor’s criminal conviction into the 

trial was thus minimally probative; and (3) because the danger of 

unfair prejudice substantially outweighed the minimal probative 

value of the criminal conviction information, it should not have been 

introduced to the jury.

¶51 I find this analysis troubling—both legally and factually. As a 

legal matter, the probative value of a prior conviction turns on the 

impact of the conviction on the witness’s credibility, not on the 

relative significance of the issue on which the witness is testifying.1

The significance of the issue should matter, if at all, in the assessment 

of the unfairness of any prejudice, or of the harmlessness of any 

error. By adding this consideration to the probative value calculus, 

the majority loads one side of the scale before even getting to any 

balancing. This conflates minimal significance with minimal 

probative value.

¶52 I would start with a straightforward analysis of the impact of 

Taylor’s prior conviction on his credibility as a witness. And I would 

find the probative value of the conviction in question to be 

substantial—or at least arguably so, which is all it should take under 

the abuse of discretion standard of review. The conviction, for 

starters, was on a felony. See supra ¶ 28 (acknowledging that “any 

felony conviction is ‘at least somewhat probative of a witness’s 

propensity to testify truthfully’” (quoting United States v. Estrada, 430 

1 See, e.g., State v. Gomez, 2002 UT 120, ¶ 34, 63 P.3d 72 (“The trial 

court must . . . evaluate and consider the probative value of the 

proffered testimony, that is, the extent to which the proposed 

testimony is probative of truthfulness or untruthfulness . . . .”); State 

v. Emmett, 839 P.2d 781, 785–86 (Utah 1992) (“it is well established 

that under Utah Rules of Evidence 404 and 609, past criminal 

convictions are only admissible for the limited purpose of attacking 

the credibility of a defendant . . . .”); see also BLACK’S LAW 

DICTIONARY 1397 (10th ed. 2014) (defining probative as “[t]ending to 

prove or disprove”).

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ROBINSON v. TAYLOR, et al.

A.C.J. LEE, dissenting

F.3d 606, 617 (2d Cir. 2005))). This felony, moreover, seems to me to 

call Taylor’s credibility into question quite directly.2 A conviction for 

distribution of a controlled substance may not so indicate on its face, 

as the elements of the offense do not generally require proof of a 

“dishonest act or false statement.” Supra ¶ 26. But when a doctor 

pleads guilty to selling an oxycodone prescription in a parking lot, 

there is a strong inference that he was providing the prescription 

under false (or at least questionable) pretenses. At a minimum, the 

district court would not be abusing its discretion in so concluding, 

which is all that is needed here.3

¶53 That suggests that Taylor’s conviction was substantially 

probative of his lack of credibility. I would so conclude. I would also 

hold, under the abuse of discretion standard of review, that the 

probative value of the prior conviction was not “substantially 

outweighed by a danger of . . . unfair prejudice.” UTAH R. EVID. 403. 

¶54 I agree, certainly, that the “narrative of Dr. Taylor selling 

oxycodone in a parking lot” likely evoked a powerful negative view 

of the doctor. Supra ¶ 34. And the majority is right that opening the 

door to this prior conviction introduced a possibility that the jury 

could make improper—and unfairly prejudicial—inferences (e.g., 

“that Dr. Taylor is a bad doctor because he is a bad person”). Id. But 

we cannot assume that this unfair prejudice would predominate over 

the proper function of the evidence (of undermining Taylor’s 

credibility). After all, the jury was instructed to consider the prior 

2 “Rule 609(a)(1) crimes, which do not bear directly on honesty 

such as to be automatically admissible under Rule 609(a)(2), may 

nonetheless be highly probative of credibility.” United States v. 

Estrada, 430 F.3d 606, 617 (2d Cir. 2005). “[M]any [Rule 609(a)(1) 

felonies] are significantly probative of a witness’s propensity for 

truthfulness.” Id.; see also United States v. Burston, 159 F.3d 1328, 1335 

(11th Cir. 1998) (“The implicit assumption of Rule 609 is that prior 

felony convictions have probative value.”).

3 See also Burston, 159 F.3d at 1335 (“We are not certain what 

evidence of two convictions for theft by taking, one conviction for 

armed robbery, and one conviction for aggravated assault says about 

[the witness’] credibility, but we are certain that the jury should have 

been given the opportunity to make that decision.”).

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A.C.J. LEE, dissenting

conviction only in judging Taylor’s credibility.4 And if the mere 

existence of other, unfair inferences were enough to outweigh the 

probative value of a prior conviction, no such evidence would ever 

be admitted. That cannot be what our rules envision.5

¶55 If the majority were right that the question of Taylor’s 

credibility in allegedly giving oral dosing instructions was an 

inconsequential matter at trial, see supra ¶ 29, then the risk of unfair 

prejudice could possibly be seen as substantially outweighing the 

probative value of the prior conviction evidence. But the court’s 

assessment of the significance of Taylor’s credibility cannot be 

reconciled with the trial record. 

¶56 As noted, Taylor’s alleged oral dosing instructions were a 

central part of his defense. And the trial transcript contradicts the 

majority’s characterization of Taylor’s credibility as “tangential.” 

Supra ¶ 29. It’s true that “the Robinsons argued that Taylor was 

negligent regardless of which dosing instructions were given,” and 

that their expert “opined that Mr. Robinson likely followed” any oral 

dosing instructions. Supra ¶ 29. But the court’s characterization of 

the trial record is incomplete. Throughout the trial, plaintiffs 

challenged the very existence of any oral dosing instructions. And 

they openly invited the jury to reject Taylor’s testimony of such 

instructions by challenging his credibility.

¶57 This was particularly clear during closing argument. 

Plaintiffs’ counsel’s argument was focused on questioning the 

4 “We should presume that the jury followed these instructions. 

Our case law, in fact, prescribes [such] a presumption . . . .” Wilson v. 

IHC Hosps., Inc, 2012 UT 43 ¶ 142, 289 P.3d 369 (Lee, J., dissenting) 

(relying on State v. Harmon, 956 P.2d 262, 273 (Utah 1998)).

5 The majority is concerned that “[a]lthough many types of 

evidence pose a risk of unfair prejudice, conviction evidence, in 

particular, carries with it unique and inherent danger of unfair 

prejudice.” Supra ¶ 34. But Rule 403 contains no such presumption of 

increased risk of unfair prejudice for conviction evidence. It simply 

allows conviction evidence to be admitted unless its value in aiding 

the jury’s evaluation of witness credibility is substantially outweighed 

by the risk of unfair prejudice. Those two adjectives are significant. If 

any presumption is present in our rule, it is a presumption in favor 

of admitting conviction evidence. 

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A.C.J. LEE, dissenting

existence of oral dosing instructions and on questioning the 

credibility of Taylor’s testimony:

Now, if during deliberations somebody says, “Well, 

but there are special dosing instructions,” remind them 

of these things: There is no evidence of special dosing 

instructions. 

Okay.

If there were special dosing instructions, they are 

inconsistent with every other piece of evidence we 

have. Inconsistent with the written—handwritten note 

by Dr. Taylor on May 26. It’s inconsistent with the 

typed out note for the 26th. It’s inconsistent with the 

prescription itself, and it’s in prescription (sic) with the 

verification, the confirmation of the dose, provided by 

Dr. Taylor's office to Mr. Carlson. It’s not consistent 

with anything

. . . .

The only evidence is Dr. Taylor’s own word[;] . . . . as 

the judge instructed, you’ve got to consider the 

credibility of each witness. Dr. Taylor is a convicted 

felon, convicted of unlawfully selling prescriptions for 

oxycodone in parking lots. He is not credible. He is the 

only witness who’s claimed these instructions, 

instructions that aren’t consistent with any piece of 

written evidence we have.

¶58 The question of special dosing instructions was a key question 

at trial. Taylor voluntarily injected this issue into the case. He did so 

as a backup for his threshold assertion (via his expert, Dr. Long) that 

the written prescription was reasonable. And the plaintiffs, 

predictably and as was their right, seized upon the opportunity to 

challenge Taylor’s credibility. In so doing, they openly invited the 

jury to reject Taylor’s assertion that he gave oral dosing instructions 

on the basis of doubts about his credibility. For all we know the jury 

did exactly that. On this record it is a fair inference that Taylor’s 

credibility was a key question for the jury.

¶59 In these circumstances, I have no idea how the majority can 

say that Taylor’s credibility was tangential, or that the “jury’s 

determination of negligence did not turn on” the question whether 

Taylor gave oral dosing instructions. Supra ¶ 30. That is sheer 

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A.C.J. LEE, dissenting

speculation. The most we can say is that the jury might not have 

found it necessary to decide whether Taylor “was telling the truth 

about the oral dosing instructions,” supra ¶ 29, given that the 

plaintiffs alleged negligence even under those instructions. That was 

a fallback for the plaintiffs, however, as they directly challenged the 

existence of oral dosing instructions and directly challenged Taylor’s 

credibility in asserting that he gave them. And for me that suggests 

that Taylor’s credibility was a key issue—one voluntarily injected 

into the case by Taylor, and challenged directly by the plaintiffs. 

¶60 Because Taylor’s credibility was a key issue, I see no way to 

presume that the jury misused probative evidence of credibility to 

draw unfair inferences against him. I would accordingly affirm. That 

result seems particularly appropriate under the abuse of discretion 

standard of review. Under this standard the district court’s decision 

may be upheld even if we decide that we might have excluded 

Taylor’s prior conviction if we had been presiding over the trial. It 

should be enough that a reasonable trial judge could find that the 

probative value of the conviction is not substantially outweighed by 

the risk of unfair prejudice.6 I would affirm on that basis.

6 See, e.g., Barrientos ex rel. Nelson v. Jones, 2012 UT 33, ¶ 39, 282 

P.3d 50 (“[W]e grant a trial court broad discretion to admit or 

exclude evidence and will disturb its ruling only for abuse of 

discretion, and then only if the ruling was beyond the limits of 

reasonability.”(alteration in original) (internal quotation marks 

omitted)).

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