Chapter 7: Examination of Witnesses
Case Study
Overview — Based on: People v. Clark, 131 Cal. Rptr. 3d 225, 2011 Cal. LEXIS 8769 (2011).
A California trial jury convicted the defendant of first-degree murder, premeditated attempted murder, two counts of robbery, attempted rape, assault with force likely to produce great bodily injury, false imprisonment, and kidnapping. Pursuant to California law, the jury found three special circumstances that permitted the jury to give the defendant the penalty of death. During the trial, the judge allowed the prosecutor to impeach the defendant’s testimony by offering evidence that on two prior occasions the defendant had committed robbery for which he was convicted, as well as two misdemeanor offenses, and had made an out-of-court admission of deceitful conduct.
The appeal by the defendant, Clark, involved, among other things, an allegation that the prosecution’s use of the above impeachment evidence deprived him of a fair trial. His contention was that in the absence of such evidence, he might not have been convicted or given the death penalty. According to California law, any witness, including a defendant, may be impeached by the use of any prior conduct that evidences moral turpitude, whether or not it resulted in a felony conviction. A California trial judge has broad discretion in admitting any evidence of prior convictions and should consider whether it reflects on the witness’s veracity, whether it is near or remote in time to the accused crime for which the defendant is on trial, whether it is for the same or similar conduct as the charged offenses, and what effect the admission of the impeachment evidence would have on a defendant’s decision to testify in his or her own defense. California law notes that a series of crimes may be more probative of credibility than a single conviction, and the trial judge may take these factors into consideration in allowing evidence of prior criminal activity.
At the close of the prosecution’s case in chief, the trial judge conducted a hearing on the admissibility of various impeachment evidence in case the defendant decided to take the witness stand in his own defense. Over the defense’s objection, the court ruled that it would admit, as impeachment evidence, proof that the defendant had committed a 1985 California robbery for which he was convicted and that he also had a 1981 Texas robbery conviction. The trial judge observed that the prior robbery convictions were for the same crimes as two of the charged offenses, presenting a risk that the jury would infer that the defendant was an individual who commits robberies. However, the judge determined that the prior convictions’ probative value in showing dishonesty and moral turpitude substantially outweighed the potential unfair prejudicial effect of that evidence.
Since the defendant realized that the judge would allow the above impeachment evidence, when the defendant took the stand in his own defense, he admitted on direct examination to committing the robberies in 1981 and in 1985, and that in 1984 he had pleaded guilty to joyriding and had stolen tools from someone’s garage. He also admitted that when he was in a juvenile lockup, he cut his own wrists not for the purpose of killing himself but to get transferred to a mental facility. The court ruled that the prosecutor could not impeach the defendant with any crimes he committed as a juvenile or with two acts of misdemeanor battery committed in 1985, because, in admitting the evidence, the judge considered that such evidence would be more unfairly prejudicial than probative of honesty or lack thereof.
According to the appellate court, the similarity between the prior robbery convictions and one of the charged offenses in this capital case was a factor for the trial court to consider when balancing probative value against the risk of unfair prejudice, but it found that the similarity was not necessarily a determining reason to exclude the evidence. In this case, the intermediate reviewing court found that the evidence of prior crimes had been properly admitted and was not a reason to overturn either the convictions or the sentence of death for the murder.
Yes. The fact that a defendant-witness or any other witness has engaged in felony criminal activity in the fairly recent past, which sheds light on that individual’s lack of honesty, is a factor in allowing the admission of evidence of prior criminal felony convictions. The theory is that where an individual has been dishonest in the past, that trait may continue to the present and be relevant to whether the defendant or witness is telling the truth while on the witness stand.
Yes. The general rule is that a witness, even a defendant, may be impeached by a showing of prior conduct involving moral turpitude, whether it resulted in a felony conviction or not. In this case, there was a similarity between prior robbery convictions and the charges for which the defendant was on trial, and there was a danger that the jury might convict him, in a close case, because he had been a robber in the past. Even though the defendant argued that admitting only one of the prior robbery convictions would have been sufficient to have impeached him, the trial judge properly ruled that both prior convictions were admissible for impeachment as well as testimony on other crimes that reflected on the defendant’s honesty or lack thereof.
Yes. Although the actual court case did not directly address the reasons why the trial judge ruled that the misdemeanor battery convictions could not be used against the defendant as impeachment, the fact that they were misdemeanors would tend to indicate that they should not be used as impeachment evidence, and the crime of battery does not necessarily involve dishonesty or moral turpitude, as it is often the described.