Sims, Alan S.

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Impeaching the Credibility of a Witness by Showing Prior Criminal Convictions

Case Western Reserve University School of Law

Case Western Reserve Law ReviewVolume 9 | Issue 21958Impeaching the Credibility of a Witness byShowing Prior Criminal ConvictionsAlan S. SimsFollow this and additional works at: https://scholarlycommons.law.case.edu/caselrevPart of the Law CommonsThis Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. Ithas been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School ofLaw Scholarly Commons.Recommended CitationAlan S. Sims, Impeaching the Credibility of a Witness by Showing Prior Criminal Convictions, 9 W. Res. L. Rev. 218 (1958)Available at: https://scholarlycommons.law.case.edu/caselrev/vol9/iss2/12WESTERN RESERVE LAW REVIEW-repair. A right to enter for the purpose of making repairs or a gratuitouscustom of making repairs should be sufficient protection for his inter-ests, yet either of these methods will probably not be enough "control"to hold him liable. As a last-ditch effort the landlord might try toconvince the courts of the basic differences between the tenant, invitee,and stranger cases. Unfortunately, Ohio courts have been indiscriminatein citing authorities; commingling has proved disastrous.THOMAS A. DUGANImpeaching the Credibility of a WitnessBy Showing Prior Criminal ConvictionsAt the common-law any person convicted of an infamous crime(treason, felony and the crimen falsi)1 was incompetent to testify as awitness. 2  The rationale behind the rule was that such a person wasconsidered,... morally too corrupt to be trusted to testify; - so reckless of the dis-tincton between truth and falsehood, and insensible to the restraining forceof an oath, as to render it extremely improbable that he [would] speak thetruth at all.3By statute the disqualification for conviction of a crime has been al-most universally abrogated.4 In Ohio civil actions this disqualificationwas removed by statute in 1853.5 Today the successor to that statuteprovides:All persons are competent witnesses except those of unsound mind,and children under ten years of age who appear incapable of receiving justimpressions of the facts and transactions respecting which they are ex-amined or of relating them truthfully.8Crimen falsi is a general designation of a class of offenses including those whichinvolve deceit or falsification and offenses affecting the public administration ofjustice. Examples of these offenses are forgery, counterfeiting, using false weightsor measures and perjury. BLACK, LAw DIcTIONARY 446 (4th ed. 1951)."The meaning of this term fcrimen falsi) at common-law is not well defined."BoUVIER, LAw DICTIONARY 256 (1946).2 GREENLEAF, EVIDENCE § 372-73 (1850); See Kornreich v. Industrial Fire Ins.Co., 132 Ohio St. 78, 87, 5 N.E.2d 153, 157 (1936); Webb v. State, 29 Ohio St351, 358 (1876).3 GREENLEAF, EVIDENcE § 372 (1850).'McCORMIcK, EVIDENCE 5 43 (1954).r51 OHIO LAWS 57 (1853). See Is re Lieberman, 163 Ohio St. 35, 37, 125 N.E.2d328, 329 (1955).'OHIO REV. CODE § 2317.01.[MarchNOTESIn criminal cases the disqualification was removed by statute in 1869.The successor to that statute reads:No person is disqualified as a witness in a criminal prosecution ...by reason of his conviction of a crime...Today the conviction of a crime may be introduced in evidence forimpeaching the credibility of a witness.9 It is used to test his truth-telling ability - his veracity. In Ohio the introduction of the priorconviction -is expressly authorized in criminal cases. The statute reads:Such... conviction... may be shown for the purpose of affecting thecredibility of such witness.0Although there is no similar provision -in the Code authorizing the in-troduction of the prior conviction in a civil case, this evidence is stillrelevant and admissible in Ohio to impeach the credibility of the witnessin a civil case." Numerous Ohio cases have allowed the fact of a priorconviction to be elicited in a civil case in order to impeach the credibilityof a witness.12CoNVIcToNs THAT MAY BE SHOWNThere are conflicting rules in different jurisdictions as to what kindof convictions may be used for impeachment purposes. In England"any felony or misdemeanor" is allowed to be shown.'8  Some stateshold that conviction of "crime' or "any crime" is competent to be in-troduced.' 4  Other states limit the introduction in evidence to convic-766 OHmo LA s 308 (1869). See In re Lieberman, 163 Ohio St. 35, 37, 125N.E.2d 328, 329 (1955).s Omo REV. CODE § 2945.42.03 WIGMORE, EVIDENCE § 926 (3d ed. 1940). The conviction may be shown ontrial by producing a copy of the journal entry, or as most states allow, by extractingan admission of the conviction on cross-examination. See 4 WIGMORE, EvIDENCE§ 1270 (3d ed. 1940); McCORMICK, EVIDENCE § 43 (1954). Cross-examinationfor eliciting the fact of conviction is permissible in Ohio. See Kornreich v. Indus-trial Fire Ins. Co., 132 Ohio St. 78, 5 N.E.2d 153 (1936)." OHIO REv. CODE § 2945.42.'See this discussed in Baltimore & Ohio R.R. Co. v. Rambo, 59 Fed. 75, 78 (6thCir. 1893) where the court had to decide what was the Ohio law governing thecompetency of witnesses in reference to convictions of crime."Kornreich v. Industrial Fire Ins. Co., 132 Ohio St. 78, 5 N.E.2d 153 (1936);Stover v. Yoakum, 69 Ohio L. Abs. 51, 109 N.E.2d 87 (Ct. App. 1952) (Dicta);State v. Liff, 86 Ohio App. 396, 87 N.E.2d 917 (1948); Killian v. Cleveland Ry.Co., 10 Ohio L. Abs. 14 (Ct. App. 1930); Koeborle v. Green, 6 Ohio L. Abs. 56(Ct. App. 1927); August v. Finnerty, 20 Ohio C.C. Dec. 330, 10 C.C.R. (n.s.)433 (1908)."Criminal Procedure Act, 1865, 28 & 29 VICT. 6, c. 18."State v. Cioffe, 128 NJ.L. 342, 355, 26 A.2d 57, 65 (1942); Coslow v. State, 83Okla. Crim. 378, 385, 177 P.2d 518, 522 (1947).1958)WESTERN RESERVE LAW REVIEWdons of an "infamous crime."' 5  Still other states hold that if misde-meanors are to be considered, the crime must at least be one involving"moral turpitude."' 6 In some states it is left to the trial judge's discretionto decide whether the particular conviction substantially affects the credi-bility of the witness.' 7The latest Supreme Court pronouncement in Ohio, Korreich v.Industrial Fire Ins. Co.,' 8 states that cross-examination dealing withprior convictions should be limited to those offenses which, as a matterof law, do affect credibility, that is, treason, felony and crimen falsi. Inthis case it was also said in dicta that it would be "unfair" to ask thewitness, for the purpose of affecting his credibility, whether or not hehad been convicted of assault and battery, as the nature of this offensein no way reflects upon credibility.' 9A much earlier Supreme Court case stated that a conviction, to beadmissible, must be one which, before the enactment of the statute re-moving the disability of the witness in criminal cases, would have dis-qualified the person from testifying as a witness 20 The court then con-cluded that the conviction of a violation of a city ordinance punishingacts which are not defined and punished as crimes 'by the State legisla-ture never disqualified a person from testifying and therefore such con-viction could not be introduced to impeach the witness.21  In still an-other Supreme Court case, Harper v. State,22 it was held that it wascompetent to show "convictions of high crimes and misdemeanors, [and]convictions under state and federal laws" for the purpose of affectingcredibility.This latter statement seems to have been interpreted -by lower courtsto mean that any conviction of a violation of a state statute may beshown to impeach credibility. Some Ohio cases have held that it is per-missible to ask the witness if he has -been convicted of any offenseunder the State law, whether the same is a misdemeanor or felony.23'People v. Thomas, 393 Ill. 573, 581, 67 N.E.2d 192, 196 (1946); Common-wealth v. Kostan, 349 Pa. 560, 566, 37 A.2d 606, 609 (1944)."8 State v. Jenness, 143 Me. 380, 383, 62 A.2d 867, 868 (1948); Rylee v. State,131 Tex. Crim. 127, 130, 96 S.W.2d 988, 989 (1936).'Burgess v. State, 161 Md. 162, 173, 155 Ad. 153, 157 (1931); Zimmerman v.Goldberg, 277 Mich. 134, 136, 268 N.W. 837, 838 (1936).- 132 Ohio St. 78, 90, 5 N.E.2d 153, 158 (1936)." Ibid."Coble v. State, 31 Ohio St. 100, 102 (1876).Ibid.21106 Ohio St. 481, 484, 140 N.E. 364, 365 (1922).'Killian v. Cleveland Ry. Co., 10 Ohio L Abs. 14 (Ct. App. 1930); Koeborle v.Green, 6 Ohio L Abs. 56 (Ct. App. 1927).[MarchNOTESOne case held that it was competent to cross-examine the witness asto convictions for having defaced license plates, for failure to registeran automobile, and for permitting an unlicensed operator to operate hisautomobile - all misdemeanors. 4  A recent common pleas decisionhas gone so far as to hold that a conviction for operating a motorvehicle while drunk is a conviction of a crime designated as crimen falsiand is well within the category of "high crimes and misdemeanors" asstated in the Harper case.2 5The interpretation of the Ohio courts as to what kind of convictionsmay -be shown for the purpose of impeaching the credibility of a witnessthus seems exceedingly liberal and in no way limited to convictions whichdo in fact have a bearing on credibility. This is unfortunate as suchan interpretation gives rise to very serious problems.PROBLEMS CREATED BY THE PRESENT RULEIn a criminal case, when the accused takes the stand, he is subjectto the same tests for impeaching his credibility as is any other witness 26since he is a witness in his own behalf. If the prosecution -is allowed tointroduce prior convictions to impeach the accused's credibility, the juryis liable to convict the accused on his "record." If the conviction is nota serious one which bears on the truth-telling ability of the witness itshould be excluded as it will only delay the trial proceedings and con.fuse the issues. It will also very likely prejudice the jury against the de-fendant. Although the evidence of the conviction will probably belimited by proper instructions to the purpose for which it is introduced,namely testing credibility, it takes no astute mind to realize that juriesdo not always limit the evidence to this purpose. They receive'the evi-dence of the prior conviction and throw it into the "pot" with all theother facts in the case and decide guilt or innocence. The jury mayvery possibly conclude that because of the prior conviction,-.. the accused is the kind of man who would commit the crime oncharge, or even that he ought to be put away without too much concernwith present guilt.7It seems that if the conviction is of a serious crime the jury shouldbe entitled to know of the conviction in most cases so as to -be in a betterposition to evaluate the testimony of the accused. If the conviction werefor first or second degree murder it would seem plausible that the juryshould be made aware of the fact that they are being urged to believe'4State v. Polhamus, 62 Ohio L Abs. 113, 106 N.E.2d 646 (Ct. App. 1951)."State v. Hamm, 62 Ohio L. Abs. 401, 104 N.E.2d 88 (C.P. 1952).SState v. Williams, 85 Ohio App. 236, 238, 88 N.E.2d 420, 421 (1947).'McCopNacK, EvEDNcn § 43 (1954).1958)WESTERN RESERVE LAW REVIEWthe testimony of a murderer. But query - what if the convictionwere for manslaughter or automobile manslaughter? Would knowledgeof this fact really help the jury in weighing the testimony of the ac-cused or would it only multiply the issues, and prejudice the jury? Theproblem is not one of easy solution. Possibly the most satisfactoryanswer is to vest broad discretion in the trial judge whereby he mayexclude a particular conviction if he feels that its admission will onlymultiply issues, prejudice the jury, and not aid them in finding thefacts. This would be similar to the discretion which is retained by thetrial judge in some jurisdictions to exclude a particular conviction iftoo remote in time.28The Uniform Rules of Evidence and the Model Code of Evidence statethat the use of previous convictions for testing the credibility of theaccused in a criminal case shall not be admissible unless the accused firstintroduces evidence supporting his credibility.29 This does not seem tosolve the problem, as the accused when he takes the stand, is a witnessin his own behalf and should be subjected to the same tests for impeach-ment as any other witness. It seems that in most cases the jury shouldhave knowledge of a prior conviction of a serious crime for the pur-poses of evaluating the testimony of the accused.Another problem arises when previous convictions of reckless driv-ing, drunken driving, speeding, or the like are introduced to impeach thecredibility of the defendant in a civil or criminal case involving thenegligent or reckless operation of an automobile. These convictionsmay be introduced, for example, in a civil automobile negligence orwrongful death action, or, in a criminal automobile manslaughter, reck-less driving or drunken driving prosecution. As a practical matter theadmission of such convictions may have the effect of creating an infer-ence as to the negligent driving habits of the driver defendant. Thecase may well turn on the admission of this evidence. Convictions ofthis nature should never be admitted for the purpose of impeachingthe credibility of the driver defendant for the practical and pragmaticreason that these convictions do not show a lack of veracity or truth-telling ability on the part of the defendant. It seems difficult to under-stand how a conviction of drunken driving or speeding would possiblyindicate that the witness was less likely to tell the truth than a person notso convicted.30'Fire Ass'n of Philadelphia v. Weathered, 62 F.2d 78 (5th Cir. 1932); State v.Kent, 5 N.D. 516, 557, State v. Pancost (alias Kent) 67 N.W. 1052, 1064 (1896);Everett v. State, 122 Tex. Crim. 626, 634, 57 S.W.2d 140, 144 (1932)." UNIFORM RULES OF EVIDENCE, Rule 21; MODEL CODE OF EVIDENCE, Rule 106.' Indeed, many people plead guilty to offenses of this nature for reasons of conven-ience.[MardiNOTESNew York has alleviated this problem to some degree by enacting astatute which provides that a conviction for a traffic infraction may notbe introduced in evidence to impeach the credibility of a witness.81The Uniform Rules of Evidence and the Model Code of Evidencehave perhaps gone too far in trying to avoid the foregoing consequenceswhen they provide that the evidence of a crime not involving dis-honesty or the making of false statement shall be inadmissible for thepurpose of impairing the credibility of a witness.32  It seems reasonablethat the jury should know if the witness has been convicted of a seriouscrime such as murder. Yet this information is not admissible by theproposed rules.IMPFACHMENT LIMITED TO SHOWING ONLY CONVICnONSIt is worthy to note that although the conviction of a crime may beshown, the general rule, supported -by the great weight of authority, isthat it is not permissible to show merely that a witness has been arrested,charged with a crime, or indicted for the purpose of throwing doubt onthe credibility of the witness8 3Reasons assigned for the rule are: (a) that such evidence does notlogically affect credibility; (b) that such inquiry or evidence might un-duly prejudice the jury against the witness; (c) that one accused of acrime is presumed innocent until proven guilty; (d) or that a witnessmay not be impeached -by particular acts of misconduct0 4  In Ohio,admission of evidence of this nature is considered "improper" and "highlyprejudicial."aa It should be remembered that although the introduction ofevidence of a prior arrest or indictment is improper, it is not prejudicialm N.Y. CIv. PRAc. AcT § 355. See De Stasio v. Janssen Dairy Corp., 279 N.Y.501, 18 N.E.2d 833 (1939); Walther v. News Syndicate Co., 276 App. Div. 169,93 N.Y.S.2d 537 (1949). The effectiveness of the statute seems somewhat impairedby a holding that a conviction for drunken driving is not a traffic infraction whichfalls under the purview of the statute. Geiger v. Weiss, 245 App. Div. 817, 281N.Y.S. 154 (1935).'= UNIFORM RuLEs OF EvIDmEN E, Rule 21; MODEL CODE OF EVIDENCE, Rule 106.5'For a full discussion and many case citations see annotation in 20 A.L.R.2d 1421(1951)." Ibid.'Wagner v. State, 115 Ohio Sr 136, 152 N.. 28 (1926); Keveney v. State,109 Ohio St. 64, 141 N.E. 845 (1923); Harper v. State, 106 Ohio St. 481, 485, 140N.E. 364, 365 (1922); Morrow v. State, 38 Ohio L. Rep. 241, 242, 14 Ohio L Abs.484, 486 (Ct. App. 1933). In the Keveney case it was stated that an indictmentagainst a witness could be shown if in the discretion of the trial judge the admissionof the evidence was relevant to show the interest of the witness in the present pro-ceedings.19581WESTERN RESERVE LAW REVIEWerror to ask the witness whether he has been indicted or arrested.36 Ifthe objection is made to this question and sustained then the witnesscould not be prejudiced 'by the question alone. Without this rule itwould be impossible to conduct a trial in such a manner that a judgmentwould stand, as the admissibility of evidence can only be tested bythe asking of the question.37ABILITY OF THE WITNESS TO EXPLAIN OR DENY THE CONVICnONIt is generally thought that once the conviction is shown the witnessshould not be allowed to make a short explanation or denial of guilt3 8This is a logical consequence of the presumption of the conclusivenessof the judgment. Some jurisdictions in opposition to this position al-low a 'brief explanation or denial of guilt3 9 or leave it to the discretionof the trial judge.40 Dean Wigmore states:... it would seem a harmless charity to allow the witness to make suchprotestations on his own behalf as he may feel able to make with a dueregard to the penalties of perjury.'In Ohio it has been said in dicta that the judgment of conviction is con-clusive and can not be questioned.42  This, it is stated, is based on prin-ciples of res judicata and the feeling that the witness has had his "dayin CoUrt."43CONCLUSIONThe problems presented by the present rule concerning which con-victions may be shown to impeach credibility could be minimized by theadoption of a new one. The proposed rule should have two facets. First,evidence of the conviction of a crime which has no substantial bearingon the truth-telling ability or credibility of the witness should not beadmitted for purposes of impeachment. Second, the trial judge should' Lloyd v. Eastern Grill, Inc., 24 Ohio L. Abs. 348 (Ct. App. 1937); Clark v. State,23 Ohio App. 474, 156 N.E. 219 (1926).' Clark v. State, 23 Ohio App. 474, 156 N.E. 219 (1926).'McCoRMICK, EVIDENCE 5 43 (1954).'Hopper v. State, 151 Ark. 299, 236 S.W. 595 (1922); State v. Oxendine, 224N.C. 825, 32 S.E.2d 648 (1945).'United States v. Boyer, 150 F.2d 595 (D.C. Cir. 1945); Donnelly v. Donnelly,156 Md. 81, 143 Ad. 648 (1928).114 WIGMORE, EVIDENCE § 1117 (3d ed. 1940)." Harper v. State, 106 Ohio St. 481, 487, 140 N.E. 364, 366 (1922).' Ibid. It should be noted that in this case it was also said in dicta that a pardonor subsequent acquittal may be shown. That the pardon does not preclude the useof the conviction see Annot., 30 A.L.R.2d 893 (1953).[March

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Impeaching the Credibility of a Witness by Showing Prior Criminal Convictions

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