Use of “Prior Bad Act” Evidence Causes Reversal of Award


Prior NASD Disciplinary Proceedings Cannot Be Used at Trial

Markowski v. Attel Bank Intl., Ltd., No. 3D98-3336 (Fla. Dist. Ct., 3Dist., 6/14/00): On appeal from a bench trial, Defendant Markowski challenges the judgment below.

In this matter, Attel Bank sought to enforce and collect on a promissory note executed by Markowski in favor of Attel to compromise a good faith dispute of civil and administrative claims against Markowski, who had sold securities to the bank. Markowski testified as the sole defense witness.

In reversing and remanding for retrial before a different judge, the Court held the trial court’s admission of NASD disciplinary findings and a SEC consent decree against Markowski, to impeach his credibility, was improper under Florida’s Evidence Code.

The Court noted that the lower court’s error in admitting the evidence of prior bad acts is subject to the “harmless error” doctrine. However, in this case, the admission of prejudicial evidence was not “harmless error,” where the trial court reached its conclusion “based on the credibility of the witnesses.” (R. Clemente) (SAC Ref. No. 2000-19-003)

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Securities Attorney at Sallah Astarita & Cox | 212-509-6544 | | Website | + posts

Mark Astarita is a nationally recognized securities attorney, who represents investors, financial professionals and firms in securities litigation, arbitration and regulatory matters, including SEC and FINRA investigations and enforcement proceedings.

He is a partner in the national securities law firm Sallah Astarita & Cox, LLC, and the founder of The Securities Law Home Page -, which was one of the first legal topic sites on the Internet. It went online in 1995 and is updated daily with news, commentary and securities law related links.