full discussion of the controversy concerning impeachment through use of defendant's prior convictions and dilemma defendant faces as to whether to testify on his own behalf
How later courts described this case
- full discussion of the controversy concerning impeachment through use of defendant's prior convictions and dilemma defendant faces as to whether to testify on his own behalf
- limit proof of prior convictions
Written by the judges who cited it.
The opinion
GODBOLD, Circuit Judge
(specially concurring):
I concur in Judge Roney’s careful analysis, while adding some brief additional comments.
As I pointed out in my partial dissent in Bendelow v. United States, 418 F.2d 42 (5th Cir. 1969), cert. denied, 400 U.S. 967 , 91 S.Ct. 379 , 27 L.Ed.2d 387 (1970), in this Circuit admissibility of evidence of prior conviction for impeachment purposes is a matter subject to the discretion of the trial judge. He is not mandated either to admit such evidence or to exclude it. As in numerous other instances of potentially prejudicial evidence, he has discretion to balance relevant factors and to determine whether probative value is outweighed by prejudicial effect. Bendelow, supra, n. 1 , 418 F.2d at 50-51 .
And, even within the range of admitting the evidence, the court is not bound to let it all in, hog, hide and tallow. The judge may simply limit the interrogation to proof of the number of convictions and the fact that they were felonies, without any reference which would give the jury to understand that they were for precisely the same offense. This approach is particularly appropriate where the prior conviction is for the same offense with which presently charged. The court need not choose between “letting the defendant appear as ‘a witness of blameless life,’ McCormick, Evidence, p. 94 (1954), and having him appear as a [twice] convicted Dyer Act violator.” Bendelow, supra, 418 F.2d at 52 . Here, as in Bendelow , by such a rational limitation of inquiry, “[t]he prejudice to appellant would have been removed. The prosecution would have obtained substantially all the legitimate benefit it sought by showing the appellant not credible because a repetitive felon. The difference between lack of credibility as a repetitive felon and lack of credibility as a repetitive car thief was negligible to the prosecution, catastrophic to the accused.” Id. at 52-53 .