Impeachment with prior convictions This is an opinion poll about what the law should be, not what it is. In general, it would be good policy to allow the prosecution to impeach the testimony a person accused of murder by showing that he has a prior murder conviction. 1. True. 2. False 0% 0% True. False 1
Impeachment with prior convictions Opinion poll. Defendant is accused of murder. A friend of his testifies in his defense. In general, it would be a good idea to allow the prosecution to impeach her testimony by showing that she has a prior murder conviction. 1. True. 2. False 0% 0% True. False 2
Opinion poll. Defendant is charged with a serious crime that could lead to many years in prison. He has no prior convictions. Assume that he is guilty of this crime. In a typical case, if he pleads not guilty and testifies in his own defense, the probability that he will lie is close to -- 1. 100% 2. 90% 3. 80% 4. 70% 5. 60% 6. 50% or less 0% 0% 0% 0% 0% 0% 100% 90% 80% 70% 60% 50% or less 4
Opinion poll. Defendant is charged with a serious crime that could lead to many years in prison. He is innocent of that crime. In such a case, telling the jury that he has prior convictions will increase the chance that the jury will reach the correct verdict. 1. True 2. False 0% 0% True False 6
The argument against allowing impeachment of the accused with prior convictions rests partly on the idea that his convictions have little or no probative value. If the previously convicted defendant is guilty, he is likely to lie on the stand, but no more so than any other guilty defendant. If he is innocent, he is unlikely to lie, and it doesn t do much harm if he does. Therefore, there is no reason to tell the jury about prior convictions. The evidence doesn t help reach a just result. Compare Richard A. Posner, An Economic Approach to the Law of Evidence, 51 Stan. L. Rev. 1477, 1544-45 (1999). 8
United States v. Sanders, p. 518 United States Court of Appeals for the Fourth Circuit, 1992 Defendant was accused of assault and possession of contraband while a prisoner. The court held that previous convictions of assault and possession of contraband in prison were not admissible to impeach. 9
Under Rule 609(a)(1), the more similar the prior crime is to the charged crime, the likely it is that the prior conviction will be admitted to impeach the testimony of the accused. 1. less 2. more 85% 15% less more 10
When a prior crime is offered to show method of operation under Rule 404(b), the more similar the prior crime to the charged crime, the likely it is that the prior crime will be admitted. 92% 1. less 2. more 8% less more 11
Factors under Rule 609(a)(1) balancing test: Impeachment value Remoteness Similarity Importance of defendant s testimony Centrality of the credibility issue 12
California Rule (see casebook, p. 524) Felony convictions for crimes of moral turpitude are admissible to impeach the accused in the discretion of the trial judge. People v. Castro, 696 P.2d 111 (1985) 13
Crimes of moral turpitude Rape, robbery, murder, burglary and aggravated assault are of course considered crimes of moral turpitude. So are many other crimes, including: felony DUI escape flight from a peace officer felony indecent exposure negligent discharge of a firearm possession of a firearm by a felon possession of an illegal firearm possession of marijuana for sale corporal injury to a child malicious mischief battery on a police officer felony vandalism 14
Examples of crimes that do not involve moral turpitude --simple possession of drugs --involuntary manslaughter --negligent child endangerment --simple assault Note: You don t need to memorize these lists of crimes. Source: Justice Mark B. Simons, Simons California Evidence Manual 3:56 (2007) 15
Hypo. The accused was previously convicted of felony indecent exposure, a crime of moral turpitude. He is now charged with felony indecent exposure in California state court. The trial judge decides to allow the conviction to be received into evidence to impeach his testimony. Should a limiting instruction be given? 88% 1. Yes 2. No 3. It depends 8% 4% Yes No It depends 16
Returning to a federal law question: Rule 609(a)(1) applies only to witnesses other than the defendant. 1. True 2. False 80% 20% True False 17
A conviction for a crime punishable by more than a year is offered under 609(a)(1) to impeach a witness in a civil case. If the judge concludes that prejudice and probative value are evenly balanced, she should rule that the conviction is -- 1. Admissible 2. Inadmissible 84% 16% Admissible Inadmissib... 18
A conviction for a crime punishable by more than a year is offered under 609(a)(1) to impeach the accused in a criminal case. If the judge concludes that prejudice and probative value are evenly balanced, she should rule that the evidence is -- 1. Admissible 2. Inadmissible 88% 12% Admissible Inadmissibl... 19
Hypo. A nine-year-old misdemeanor fraud conviction is offered to impeach the testimony of a defendant charged with mail fraud. (See text at p. 526, citing US v. Wong)). 1. The conviction must be excluded. It is similar to the crime charged and remote in time. 2. The conviction must be excluded if the crime is punishable by less than a year. 3. Both of the above. 4. The trial judge has discretion to admit or exclude. 5. The conviction must be admitted. The conviction must.. 4% 0% The conviction must.. Both of the above. 20% The trial judge has di... 4% The conviction must.. 72% 20
You are the prosecutor in a case in which the defendant has a prior conviction for petty larceny. The defendant testifies. The Federal Rules of Evidence apply. You argue that stealing is dishonest. What are you trying to accomplish with this argument?. 21
Under United States v. Brackeen, p. 527, robbery is per se a crime of dishonesty within the meaning of Fed. R. Evid. 609(a)(2). 1. True 2. False 96% 4% True False 22
The Brackeen court states that Congress intended Rule 609(a)(2) to apply only to those crimes that factually or by definition entail some element of misrepresentation or deceit.... (p. 494). That statement implies that -- 1. Robbery is never deceitful 78% 2. The result might have been different had defendant lied in furtherance of a prior robbery. 3. Neither of the above 9% 13% Robbery is ne... The result mig... Neither of the... 23
After Brackeen, Rule 609(a)(2) was amended to provide that convictions 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 (restyled version). This means 85% -- (Ref.: Adv. Comm. Note to 2006 Amendment, p. 1063. ) 1. A party is permitted to impeach a witness with evidence of a prior theft conviction if there was testimony in the prior case that the theft was committed using deceit. 2. Something else. A party is permitted.. 15% Something else. 24
Federal approach --Crimes of dishonesty or false statement must be admitted --Other crimes may be admitted, subject to a balancing test, if punishable by more than a year. California approach Convictions for crimes of moral turpitude are admissible to impeach the accused in the discretion of the trial judge. 25
Suppose you are a member of Congress back when the Federal Rules of Evidence were first being considered. You think that convictions for stealing should be admissible to impeach. Of the following three alternatives, you should support the one providing that a prior conviction shall be admitted if it is -- 79% 1. a crime of false statement 2. a crime of dishonesty 3. a crime of dishonesty or false statement a crime of... 0% a crime of... 21% a crime of... 26
Hypos, p. 530 Reminder: The defendant opens her character as a witness to attack by taking the stand. R. 608-609. She opens her character as a defendant to attack by calling a character witness. R. 404, 405. 56% 44% Admissible Inadmissibl... 27
P. 530, Q-1a. A murder defendant was previously convicted of petty larceny. The crime arose from a shoplifting incident in which she falsely claimed that she had bought the stolen goods in another store. Can the prosecutor use this evidence in any way? 1. Yes. 2. No. 40% 48% 3. It depends. 12% Yes. No. It depends. 28
Q 1-b. This question involves a murder defendant who was previously convicted of disturbing the peace after she threw her meal at a server. In the situation described in the question, can the prosecutor use the prior conviction in any way at trial? 1. Yes 2. No 40% 44% 3. It depends 16% Yes No It depends 29
Q-2. A prosecution witness in a murder case has a pending charge of possession of marijuana with intent to sell. Can the defense impeach the witness with evidence of this charge? 1. Yes 2. No 3. It depends 84% 12% 4% Yes No It depends 30
Q-3. Defendant is prosecuted for having sexual intercourse with his 13-year-old stepdaughter. To impeach him, the prosecution offers evidence of prior convictions for rape, sale of heroin, and grand theft. The convictions are -- 1. Admissible 2. Admissible in part. 3. Inadmissible. 0% 0% 0% Admissible Admissible in... Inadmissible.... 31
Luce v. United States, p. 531 United States Supreme Court, 1984 Holding? Reasons for holding? Is it fair? 32
Ohler v. United States, p. 533 United States Supreme Court, 2000 (Case described in note at bottom of page) When defense counsel removes the sting by bringing out the prior conviction, the right to complain on appeal about the pretrial ruling is lost. Is this rule fair? 33
The end 34
Read on to 546 35
In a federal case, defendant is charged with aggravated assault. Which of the following prior convictions is most likely to be admitted to impeach the testimony of the defendant? 1. Aggravated assault, a felony. 2. Petty larceny, a misdemeanor. 3. Lying to an FBI agent, a misdemeanor. Aggravated ass... 0% 0% 0% Petty larceny,... Lying to an FB... 36