stating that “independent of any Federal constitutional mandate, . . . both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification”
How later courts described this case
- stating that “independent of any Federal constitutional mandate, . . . both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification”
- adopting rule of evidence that United States v. Wade, 388 U.S. 218 [1967], as to corporeal identifications, and People v. Anderson, supra, as to photographic showings, “shall govern the receipt in evidence of identification testimony where the witness has viewed or seen photographs of the suspect without regard to when the judicial phase of the prosecution is commenced” [footnotes omitted]
- requiring counsel at photo lineup and rejecting United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)
- "independent of any Federal constitutional mandate, . . . both before and after commencement of the judicial phase of a prosecution, a suspect is entitled to be represented by counsel at a corporeal identification or a photographic identification . . .”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by McDougall v. Schanz, 461 Mich. 15 (1999)
In People v. Jackson, the Michigan Supreme Court departed from Kirby; 391 Mich. 323, 217 N.W.2d 22, 27 (1974), overruled on other grounds by McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999).
Overruled in part, on other grounds by People v. Hickman, 470 Mich. 602 (2004)
391 Mich 323, 336 (1974), overruled in part on other grounds by People v Hickman, 470 Mich 602
The opinion
*343 Swainson, J.
(concurring). I concur in the result reached by Justice Levin but disagree with the rule set forth in Part II. In my opinion, the interest of justice and the efficient administration of our judicial system would best be served by declaring prior convictions inadmissible for the purpose of impeaching the credibility of a criminal defendant.
The practice of allowing the introduction of a witness’ criminal record to impeach his credibility has come down to us as a modification of the common-law rule that rendered any convicted person incompetent to testify. McCormick, Law of Evidence (2d ed), § 43, p 84. In the 19th century this common-law rule was justly criticized as observers recognized that there was no necessary relationship between a prior criminal conviction and a disposition to tell the truth at trial. 37 U Cinc L Rev 168, 169 (1968). Our Legislature displayed its general agreement with the critics of the old rule by abolishing it and thereby allowing previously convicted persons to testify. See, 1846 RS, ch 102, § 99; 1861 PA 125 . The Legislature, however, did not eliminate all aspects of the former rule. In its place was substituted a new rule that permits opposing counsel to introduce the witness’ criminal record under the color of impeaching his credibility. See, 1881 PA 245 , relevant provisions now found in MCLA 600.2159; MSA 27A.2159.
I think that it is now time for this Court to recognize a fact that has been well illustrated by commentators and confirmed by the facts in the present case. When the prospective witness is a criminal defendant with a prior record, there is often no real distinction between the common-law prohibition from testifying and our present rule. Rather than expose his prior record to the trier of *344 fact the defendant must forego his right to testify in his own behalf. State v Santiago, 53 Hawaii 254, 258 ; 492 P2d 657, 660 (1971); H. Kalven and H. Zeisel, The American Jury 146 (1966); McCormick, Law of Evidence (2d ed), § 43, p 84.
If we expect the trier of facts to intelligently and impartially decide if a defendant has committed the crime for which he is standing trial, it makes no sense to permit artificial barriers to remain in the fact-finding process. A toted understanding of the events in question at an adversary trial cannot logically be achieved unless the defendant is able to freely testify as to his recollection of them. Conversely, if a defendant with a record does elect to testify, we ask the jury to perform unattainable feats of "mental gymnastics” by exposing it to a defendant’s record for the stated purpose of weighing his credibility and then asking the jury to totally disregard the criminal record when passing on the defendant’s guilt or innocence of the present charge. 1 E. Griswold, The Long View, 51 ABAJ 1017, 1021 (1965); 70 Yale L J 763, 777 (1961).
I find it undeniable at this time that the prejudice resulting from allowing impeachment of a defendant by prior conviction evidence clearly outweighs whatever small probative value might result from the practice. 2 I believe that under our *345 duty to supervise the administration of justice in the State of Michigan we would promote fairness and uniformity by setting forth a clear rule prohibiting impeachment of a criminal defendant by his prior convictions rather than leaving the decision to be made in each case at 'the trial court level.
In addition to increasing fairness and the full scope of fact-finding at the trial court level, a rule barring the impeachment of defendants through the use of prior convictions will aid appellate review. A defendant will, of course, retain his right to remain silent at trial without any adverse inference being drawn from the exercise of that right. However, in reviewing a trial we will no longer be forced to presume that a defendant did not testify out of fear of exposing his past record. Similarly, appellate courts will be in a better position to determine if a defendant has received a fair trial if they can review the full scope of the evidence and are able to assume that the jury did not use his prior record as a basis for conviction.
A decisional rule barring the impeachment of the credibility of a criminal defendant through the use of his prior convictions in all cases where the defendant does not introduce evidence to affirmatively support his credibility would be consistent *346 with both the words and spirit of MCLA 600.2158; MSA 27A.2158. As an appellate court we do not interpret laws in a vacuum. We interpret them in light of our increasing factual knowledge and the evolving standards of justice. Cf. People v Wimberly, 384 Mich 62, 66 ; 179 NW2d 623 (1970); Harper v Virginia Board of Elections, 383 US 663, 670 ; 86 S Ct 1079 ; 16 L Ed 2d 169 (1966). Since we know more now than was known in 1861, when that section was first enacted, concerning the true result of allowing impeachment by the use of prior convictions, it is reasonable that in the interests of justice we limit this permissive statute to the extent necessary to avoid prejudice at criminal trials. 3 ****8 Perin v Peuler, 373 Mich 531 ; 130 NW2d 4 (1964).
T. M. Kavanagh, C. J., concurred with Swain-son, J.
Even when properly instructed on the limited purpose for which the prior convictions may be used, the jury members undoubtedly do not erase a defendant’s record from their minds when deliberating on the verdict. They likely use defendant’s record to conclude that he is a "bad man” and probably guilty of the crime for which he is being tried, 70 Yale L J 763, 777 (1961), and thus use his record to lighten the sense of responsibility which rests upon the jury, by showing that he is not worthy of painstaking [consideration] and care.’ ” 37 U Cinc L Rev 168, 172 (1968).
To date we have already limited the extent to which the facts contained in a defendant’s prior record may be used to impeach his credibility. For example, we recently held in People v Falkner, 389 Mich 682 ; 209 NW2d 193 (1973), that inquiry could not be made into a prior arrest record or concerning charges that did not result in a *345 conviction. In People v Rappuhn, 390 Mich 266 ; 212 NW2d 205 (1973), we found that the length and conditions of sentences served are not within the scope of a proper cross-examination. Likewise, the Court of Appeals has barred impeachment of a defendant through the use of his juvenile record, People v Warren, 23 Mich App 20 ; 178 NW2d 127 (1970); People v Smallwood, 306 Mich 49 ; 10 NW2d 303 (1943), and held in People v Farrar, 36 Mich App 294 ; 193 NW2d 363 (1971), the decision approved by the majority in the present case, that the trial judge must exercise his discretion to determine if impeachment by any prior conviction should be allowed. See also, People v Eddington, 387 Mich 551 ; 198 NW2d 297 (1972). In all of these cases the Courts have followed the rule that evidence will be excluded when the prejudice resulting from its introduction is deemed to outweigh the probative value of the evidence.
When the defendant takes the witness stand the jury will continue to be suspect of his testimony and will examine it carefully even if he is not impeached by his prior convictions. Juries are aware of the pressure on a defendant to exculpate himself and the possibility that he has prepared "the best story possible”. 78 Harv L Rev 426, 440 (1964). The jury’s focus will, however, be directed to the facts of the case before them find not to facts unrelated to the case in which they are charged to reach a fair and impartial verdict.
The legal profession has always taken pride in its ability to bring out the facts of an event within the limitations of the trial setting. I am confident that a rule foreclosing the impeachment of a defendant in a criminal case by the use of prior convictions will not lessen that ability. After a defendant has taken the witness stand in his own behalf his testimony can be tested through a vigorous cross-examination without the necessity of resorting to impeachment by prior convictions. State v Santiago, 53 Hawaii 254, 259-260 ; 492 P2d 657, 661 (1971).