noting in dicta that to establish motive for a theft offense by demonstrating impecuni-osity of defendant requires a chain of inferences that is highly speculative and therefore of little probative value
How later courts described this case
- noting in dicta that to establish motive for a theft offense by demonstrating impecuni-osity of defendant requires a chain of inferences that is highly speculative and therefore of little probative value
- declining to decide whether a jury instruction containing both a permissible and impermissible purpose under ER 404(b) was a basis for reversal when the issue was not properly argued on appeal
- noting that reasons which prompted offer of proof requirement are better served by requiring defendant to take the stand in order to preserve error
- ER 609 concerned only with a conviction offered for the purpose of attacking the credibility of a witness
Written by the judges who cited it.
The opinion
Pearson, J.
(concurring in the result)—
I agree with the concurrence to the extent it takes issue with the conclusion in Justice Brachtenbach's opinion that all crimes involving theft are per se dishonest. In reaching such a conclusion, the opinion by Justice Brachtenbach implicitly ignores the purpose behind ER 609(a)(2). That rule allows the admission of evidence of past crimes only for the purpose of impeaching the defendant's credibility. As the concurrence notes, when the defendant's veracity is the issue, the per se rule in Justice Brachtenbach's opinion may wholly fail to serve the theoretical purpose of impeachment, while ensuring prejudice in the eyes of the jury.
Despite my agreement with this portion of the concurrence, I am constrained to write separately to note the error it contains regarding the issue of the appealability of an erroneous ER 609(a)(2) ruling. The concurrence argues that requiring the defendant to actually take the stand before being able to appeal the ruling violates Fifth Amendment guaranties. That is not the case.
The concurrence frames the issue as one of "forcing" the defendant to testify in order to preserve error. In point of fact, impeachment evidence is admissible only in the *561 instance where the defendant actually takes the stand. Thus, where a defendant does not wish to testify, an improper in limine ruling simply does not affect that defendant. The rule in Justice Brachtenbach's opinion does nothing more than confront this defendant with a decision every criminal defendant must ultimately reach; that is, whether to testify.
With these explanations, I concur in the result.
Dore, J., concurs with Pearson, J.
After modification, further reconsideration denied March 1, 1990.