rejecting mandatory admissibility of prior convictions because it “unquestionably discourages many defendants from taking the stand, and the fact-finding process will be enhanced to the extent that defendants are encouraged to and do testify! ]”
How later courts described this case
- rejecting mandatory admissibility of prior convictions because it “unquestionably discourages many defendants from taking the stand, and the fact-finding process will be enhanced to the extent that defendants are encouraged to and do testify! ]”
- holding that prior conviction shall be admissible evidence for impeachment purposes unless danger of undue prejudice substantially outweighs probative value
- statute mandating admission of evidence of any prior convictions for the purpose of affecting the credibility of any witness upheld with Supreme Court noting that it could adopt guidelines for the statute pursuant to the Evidence Act
- allowing court to consider age and nature of prior crime, when weighing relevance of conviction against prejudice to defendant, in determining whether to admit prior conviction
Written by the judges who cited it.
The opinion
Pashman, J.,
concurring. I join with the forward looking opinion of the Court. Today’s decision will enhance the accuracy of the criminal justice system by diminishing the frequency with which juries aTe deprived of probative evidence due to a defendant’s failure to testify for fear of prejudicial impeachment because of his prior criminal convictions. It will also serve to minimize, but unfortunately not *148 eradicate, the risk that a defendant whio elects to testify despite his criminal record will be convicted for the wrong reasons ■ — ■ a result abhorrent to the very concept of-justice. I am pleased at the Court’s sensitivity to many of the concerns expressed in my concurrence in State v. Johnson, 65 N. J. 388, 392 (1974) (Pashman, J., concurring). Nevertheless my uneasiness over the amount of discretion vested in the trial judge by the Court prompts me to note my views on that issue separately.
The Court stresses that the logical and temporal remoteness of the prior convictions is the central criterion in the admissibility calculus. These matters should receive weighty consideration by the trial judge. However, the most critical factor is not specifically addressed. As Chief Justice Burger, writing as a circuit judge, pointed out in Gordon v. United States, 127 U. S. App. D. C. 343, 383 F. 2d 936 (D. C. Cir. 1967), cert. den. 390 U. S. 1029 , 88 S. Ct. 1421 , 20 L. Ed. 2d 287 (1968):
One important consideration is wliat the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. Even though a judge might find that the prior convictions are relevant to credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant’s version of the case than to have the defendant remain silent out of fear of impeachment.
[127 U. S. App. D. C. at 347, 383 F. 2d at 940-941 ] 1
Again, I am aware of the fact that a good deal of discretion must go into this determination. No sound judicial system would automatically permit a defendant with a string of prior convictions to appear before the jury in the same light as a first time offender on the mere representation that he will not testify if his prior record is admitted. In a given *149 case, however, a balancing of interests may require the judge to prevent cross-examination concerning a defendant’s prior convictions.
The indiscriminate presentation to the jury of a laundry list of all prior convictions, which the Court permits, see ante at 144^145, would make the defendant’s conviction a foregone conclusion, even if he was in fact innocent of the offense for which he was being tried. It would be preferable to admit the most serious of his prior convictions which meets the remoteness test set forth by the Court.
A helpful guide which trial judges may use in assessing remoteness is found in Eule 609 (b) of the Federal Buies of Evidence which reads in pertinent part as follows:
Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
[Fed. Rules. Fvid. Eule 609(b), 28 V. 8. G. Pub. L. 93-595, § 1 , 88 8ta,t. 1935 (effective January 2, 1975)]
The adoption of this Eule also postdated Gordon, supra, and naturally supersedes that case. The Federal Eule is not necessarily the last word on this topic. However, I believe that where the defendant has maintained an unblemished criminal record for ten consecutive years since release from confinement or other sentencing conditions of a given prior offense, the burden should shift to the State to justify the admission of evidence of such a remote conviction. Placing the burden on the State would be appropriate as it would limit the dis *150 eretion of the judge and would, also protect a defendant from automatically risking what is effectively a form of double jeopardy for a mistake for which he was long before held accountable by society.
In determining whether to admit evidence of prior convictions a trial judge must be mindful of one overriding consideration. He should ask himself whether admission of defendant’s prior convictions for impeachment purposes will deny that defendant a trial focused only on the crime he is presently accused of committing by improperly deflecting the jury’s consideration to his perceived evil character. In a close case the ever-present danger that such prejudice will result from admitting a prior conviction should tip the scales in favor of exclusion. A defendant deserves a trial on the merits, not on his past demerits. Trial judges must recognize that whatever accommodation they reach between the State’s concern that a scoundrel not appear to be a trustAvorthy individual and the defendant’s right to present relevant exculpatory evidence without being haunted by past misdeeds, the fundamental concern is that the focus of the proceedings should always remain on the crime for which the defendant is being tried. The above considerations doubtless prompted the Court to require that the lapse of time and the nature of the crime underlying the conviction must be balanced against the prejudicial effect to the defendant of admission. See ante at 144-145. My concurrence is intended to make these concerns more explicit.
In conclusion, I note that the new rule adopted by the Court may work well in practice, despite the rather unlimited discretion it gives the trial judges. If too many conflicting determinations arise, we are free to modify this formulation in the future to provide more explicit guidance. Subject to my comments herein, I fully concur in Justice Schreiber’s opinion for the Court.
Pasiíman, J., concurring in the result.
*151 For affirmance — Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler — 6.
For reversal — None.
The Chief Justice’s analysis in O-ordon is particularly well-reasoned and commends itself to use by trial judges as a guidepost in making the delicate determinations of admissibility entrusted to their sound discretion by the Court.