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F 2.23 n1 Defendant’s Testimony: Impeachment By Prior Conviction — Ineffective Counsel For Failure To Request.
There is a conflict in the cases as to whether the trial court has a sua sponte duty to caution the jury regarding a prior conviction offered to impeach the testimony of a defendant. (See FORECITE CHK II: Sua Sponte Instructions; see also CJ 2.23 Use Note [recommending that trial judge bring the matter to counsel’s attention should the need for an instruction arise].)
However, regardless of whether the judge takes any affirmative action, it is the duty of trial counsel to consider the necessity of such an instruction and request it if necessary. The failure of counsel to make such a request has been held to be ineffective assistance of counsel requiring reversal of the defendant’s conviction. (See People v. Olano UNPUBLISHED, A076812.) [The opinion and briefing in Olano is available to FORECITE subscribers. Ask for Brief Bank # B-774 and Opinion Bank # O-243.]
F 2.23 n2 Witness Credibility: Jury Consideration Of The Fact Defendant Attended The Trial.
Portuondo v. Agard (2000) 529 US 61 [146 LEd2d 47; 120 SCt 1119] held that it is not unconstitutional for a prosecutor to call the jury’s attention to the fact that a testifying defendant, thanks to his presence throughout the trial, had the opportunity to tailor his testimony to harmonize with that of other witnesses.
STRATEGY NOTES: Opening The Door For Consistent Statements. In some cases such an argument may open the door to admission of prior consistent statements which the defendant may have made before hearing the testimony of the witnesses at trial.
Defense Argument As To Prosecution Witness. The argument of tailored testimony should also be available to the defense when a prosecution witness, such as the designated investigating officer, was present in court during the testimony of the other witnesses. (See Wardius v. Oregon (73) 412 US 470 [37 LEd2d 82; 93 SCt 2208].)
Request That Defendant Be Allowed To Testify Before The Prosecution Witnesses. In those cases where the defendant is always intending to testify, the defense may wish to consider requesting permission from the trial court to take the defendant out of order as a witness–even to the extent that the defendant should be permitted to testify before the entire prosecution case, if need be. The order of proof is a matter which is in the court’s discretion. (See Imwinkelried, et al., Courtroom Criminal Evidence (LEXIS, 3rd ed. 1998) § 101, p. 13; FRE 611; EC 320.) By contrast, the defendant’s right to testify is constitutional and fundamental in nature. (See Rock v. Arkansas (87) 483 US 44 [97 LEd2d 37; 107 SCt 2704].) The defendant shouldn’t have to choose between a significant impairment of that right (the trial court’s “comment on potential lying”) and foregoing that right altogether, if a less intrusive alternative can be found which would require neither. (Cf., Simmons v. United States (68) 390 US 377, 394 [19 LEd2d 1247; 88 SCt 967] [discussing intolerability of certain types of “constitutional tensions”].) Taking the defendant out of order as a witness certainly seems to qualify.
F 2.23 n3 CJ 2.23 Must Be Given Sua Sponte.
[See Brief Bank # B-884 for briefing on this issue.]
F 2.23 n4 Uncharged Act: Relevance Must Be Specified When Case Also Involves Impeachment With Prior.
When evidence of a prior conviction has been admitted for impeachment purposes and other-crimes evidence also has been admitted pursuant to EC 1101(b), the trial court should instruct the jury as to which evidence is referred to in the CJ 2.50 instruction, in order to avoid confusion. (People v. Rollo (77) 20 C3d 109, 123 fn 6 [141 CR 177]; see also People v. Catlin (2001) 26 C4th 81, 147 [109 CR2d 31].)
F 2.23 n5 Prior Conviction: Applicability To Prosecution Witness.
(See FORECITE F 2.20 n16.)
F 2.23a
Defendant’s Testimony: Impeachment By Prior Conviction
*In a case where a prior felony conviction has been offered to impeach the defendant, substitute the following instruction for CJ 2.23:
You have been told that the defendant has previously been convicted of a felony. This conviction has been brought to your attention only because you may wish to consider it when you decide, as with any witness, how much you will believe of the defendant’s testimony in this trial. The fact that the defendant was found guilty of another crime does not mean that [he] [she] committed the charged crime, and you must not use [his] [her] guilt of the prior felony as proof of the crime charged in this case. You may find [him] [her] guilty of the charged crime only if the prosecution has proved beyond a reasonable doubt that [he] [she] committed it.
Points and Authorities
Evidence that the defendant has committed other crimes may be extremely prejudicial because it suggests to the jury that the defendant is a person of bad character and it further invites the jury to conclude that the defendant is guilty of the charged crime because he committed the prior crime in violation of his/her federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. (See Michelson v. United States (48) 335 US 469, 475-476 [93 LEd 168; 69 SCt 213], fn. omitted [prior crimes evidence must be treated with extreme care “not…because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge”]; People v. Thompson (80) 27 C3d 303, 314 [165 CR 289] [admission of any evidence that involves crimes other than those for which a defendant is being tried has a “highly inflammatory and prejudicial effect”]; People v. Anderson (78) 20 C3d 647, 651 [143 CR 883]; People v. Albertson (44) 23 C2d 550, 577 [145 P2d 7]; People v. Enos (73) 34 CA3d 25, 34 [109 CR 876].) For example, the cautionary instruction regarding other crimes evidence admonishes the jury that such evidence may not be utilized to conclude that the defendant is a person of bad character or that he or she has a disposition to commit crimes. (CJ 2.50.) However, CJ 2.23 does not contain a similar admonition. In fact, CALJIC contains no instruction which is specifically designed for use in a case where the defendant has been impeached by a prior felony conviction. (CJ 2.23 applies to all witnesses.) Hence, the above proposed instruction, which is based upon the Federal Judicial Center Pattern Instructions, should be given instead of CJ 2.23. (See Federal Judicial Center, Pattern Jury Instruction (1988), Instruction No. 41, p. 51.)
CAVEAT: Issues regarding the admissibility of the defendant’s prior conviction may be waived if the defendant pre-emptively admits the prior on direct examination. (Ohler v. United States (2000) 529 US 753 [146 LEd2d 826; 120 SCt 1851, 1853-55].)
ALTERNATIVE FORM
“Evidence that the defendant has been convicted of a felony is one of the circumstances which you may consider in determining the credibility of the defendant as a witness. Evidence of such an earlier conviction, however, must never be considered by you as evidence of any kind of the guilt of the crime for which the defendant is now on trial. You are forbidden to use this kind of evidence for that purpose.”
Points and Authorities
Devitt, et al., Fed. Jury Prac. & Inst. (1992) § 15.08, p. 519.
RESEARCH NOTES
See FORECITE BIBLIO 2.23.
F 2.23b
Evaluation Of Witness Believability: Applicability To Out-Of-Court Declarant
*Add to CJ 2.23:
[See FORECITE F 2.20b.]
F 2.23c
Impeachment Of Defendant By Prior Conviction:
Explanatory Instruction Regarding Defendant’s
Failure To Reveal The Conviction On Direct Examination
*Add to CJ 2.23:
You must not draw any adverse inference against the defendant due to [his] [her] failure to reveal the prior conviction during [his] [her] direct testimony. [The rules of procedure precluded the defendant from revealing the prior conviction on direct examination without giving up other important legal rights]. [Under the rules of procedure, the defendant would have given up important legal rights if [he] [she] had revealed the prior conviction on direct examination.]
Therefore, you must not assume that the defendant’s failure to reveal the prior was an attempt to keep you from hearing about it.
Points and Authorities
Ohler v. United States (2000) 529 US 753 [146 LEd2d 826; 120 SCt 1851, 1853-55] created a Hobson’s choice for the defendant: either reveal the prior conviction on direct examination and waive the right to appeal or wait for the prosecutor to reveal the prior and risk having the jury assume that the defendant was attempting to hide the prior conviction from the jury. In view of this dilemma, it would be unfair to the defendant to allow the jury to draw an adverse inference against the defendant who chooses to preserve his or her right to appeal. (See PG VII(C)(22) [Exercise Of One Constitutional Right Cannot Be Conditioned Upon The Denial Of Another; see also PG VII(C)(21) [Due Process Requires Balanced Instructions That Do Not Unduly Favor The Prosecution].)
Accordingly, an explanatory and limiting instruction should be given on request.
