People v. Atkinson

JUSTICE RATHJE, dissenting:

The majority concludes that, even if the trial court finds that the mere-fact approach is the most appropriate method of presenting to a jury evidence of a defendant’s prior conviction, the trial court is prohibited from using that method. Such a conclusion is unwarranted, unnecessary, and overly broad. Historically, this court has vested the trial court with great discretion to determine what evidence should be presented at trial. See People v. Gilliam, 172 Ill. 2d 484, 513 (1996) (recognizing that “the admission of evidence is within the sound discretion of the trial court”). Furthermore, whether evidence of a prior conviction may be introduced as impeachment is a question that lies within the sound discretion of the trial court. People v. Williams, 173 Ill. 2d 48, 81 (1996) (Williams II). Given the wide discretion afforded the trial courts, I fail to see the basis for the majority’s conclusion that, as a matter of law, it always is improper to use the mere-fact approach to impeach a testifying defendant.

The admission of a defendant’s prior conviction to impeach his credibility is governed by the test set forth in People v. Montgomery, 47 Ill. 2d 510 (1971). The Montgomery court held that, for purposes of attacking credibility, evidence of a prior conviction is admissible only if (1) the crime was punishable by death or imprisonment in excess of one year; or (2) the crime involved dishonesty or false statement, regardless of the punishment. Montgomery, 47 Ill. 2d at 516, 519 . In either case, however, evidence of the conviction is inadmissible if the trial court determines that the probative value of the conviction is substantially outweighed by the danger of unfair prejudice. Montgomery, 47 Ill. 2d at 516, 519 .

When used for impeachment, a defendant’s prior convictions are not introduced to prove that the defendant is a bad person, “ ‘but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses.’ ” People v. Williams, 161 Ill. 2d 1, 37 (1994) (Williams I), quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967). The probative value of prior convictions of crimes of dishonesty or false statement is easily seen. The terms “dishonesty” and “false statement” refer to crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, false pretenses, other offenses in the nature of crimen falsi, and theft. See People v. Spates, 77 Ill. 2d 193, 201-04 (1979). These crimes all involve some element of deceit, untruthfulness, or falsification, character traits that bear directly upon the accused’s propensity to testify truthfully. Spates, 77 Ill. 2d at 204 . With respect to crimes involving dishonesty or false statement, the nature of the crime is probative of the defendant’s veracity.

As for prior felony convictions, however, it is not the nature of the crime that bears on the defendant’s veracity, but rather the fact that the defendant committed a felony. The impeachment value of these crimes rests upon the premise that “a person with a criminal record has a bad general character, evidenced by his willingness to disobey the law, and that his bad general character would lead him to disregard his oath to testify truthfully.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 609.1, at 452 (7th ed. 1999). As early as 1884, Justice Holmes recognized this principle, explaining that a felony punishable by imprisonment is admissible for impeachment because it demonstrates a “general readiness to do evil,” and that, from this “general disposition alone,” the jury is allowed “to infer a readiness to lie in the particular case.” Gertz v. Fitchburg R.R. Co., 137 Mass. 77, 78 (1884). Thus, although these crimes do not directly call defendant’s credibility into question, they are relevant because they reflect adversely on his general character.

In Williams II, this court noted that some language in Williams I could indicate that this court “no longer approved of the common rationale that a witness’ prior felony conviction may by itself evince disrespect for social order and therefore supply a proper basis for impeachment.” Williams II, 173 Ill. 2d at 82 . This court then explained, however, that this was not the case and that it continued to adhere to the three-part test established in Montgomery. Williams II, 173 Ill. 2d at 83 . Thus, not only have this court’s past rulings been based on the common law belief that a prior felony conviction by itself evinces a disrespect for social order that is relevant for impeachment, but this court has also recently and explicitly reaffirmed its continued adherence to that belief.

Given the clear distinction between the two types of convictions available for impeachment and the great discretion vested in the trial court, I believe that a framework can be established within which the trial court may determine whether, in a particular situation, the mere-fact approach should be used. If the defendant objects to the introduction of a prior conviction, the trial court should apply the Montgomery test. If, after analyzing the conviction under the Montgomery test, the trial court determines that the conviction or convictions can be admitted, the defendant may request that the jury be informed only that he has been convicted of a felony and not of the particular felony of which he has been convicted. If the trial court determines that the mere-fact approach would lessen the possible prejudice to the defendant while not substantially affecting the probative value of the evidence of the prior conviction, it should permit impeachment only by the mere-fact approach.

Under this framework, the mere-fact approach should not be used with respect to prior convictions of crimes of dishonesty or false statement. This is because the nature of the conviction is probative of the defendant’s untruthfulness, and the use of the mere-fact approach would clearly lessen the probative value of the conviction. Further, in cases where no similarity exists between the crime charged and the prior felony conviction, less chance exists that the possible prejudice would be affected by the mere-fact approach. Consequently, in those cases, unless the prior felony conviction is particularly heinous when compared with the crime for which the defendant is charged, the mere-fact approach normally should not be used.

The danger arises in cases where the prior conviction is similar to the crime charged. Indeed, “[t]he more similar the prior offense to the crime charged, the stronger the natural though impermissible inference likely to be drawn by the jury that, if the defendant did it before, he probably did it this time.” M. Graham, Cleary & Graham’s Handbook of Illinois Evidence § 609.1, at 453 (7th ed. 1999). In such cases, the possible prejudice will certainly be lessened if the conviction is referred to only as a felony. Consequently, unless the probative value of the prior conviction would be substantially lessened by informing the jury only that the defendant has a prior felony conviction, the trial court should grant the defendant’s request to use the mere-fact approach.

In sum, the mere-fact approach is consistent with the wide discretion afforded the trial court and comports with our concept of a fair trial. The mere-fact approach minimizes the potential prejudice to the defendant by replacing the name of a particularly heinous crime or a crime similar to the one with which the defendant is charged with the term “felony.” Such an approach prevents the jury from concluding that the defendant is guilty of the crime charged simply because he previously committed a similar crime or a particularly offensive crime. If, in certain circumstances, the mere-fact approach reduces the potential prejudice without substantially affecting the probative value of the prior conviction, then this court, by prohibiting the trial court from using the mere-fact approach, has abandoned its duty to ensure that the defendant receives a fair trial.

Notwithstanding the numerous considerations operating in favor of the mere-fact approach, the majority offers four reasons to reject it, none of which are persuasive. First, the majority asserts that, “The three-prong approach adopted in Montgomery has guided our court’s analysis of this issue for many years and has recently been reaffirmed.” 186 Ill. 2d at 458. While this is undeniably true, it in no way precludes a trial court from employing the mere-fact approach. This is so because the trial court should consider whether to apply the mere-fact approach only after it has applied the Montgomery test and concluded that evidence of the prior conviction is admissible for impeachment. Consequently, since the mere-fact approach would be considered only after the Montgomery test is applied, the adoption of the mere-fact approach would not interfere with the trial court’s application of the Montgomery test.

Next, the majority asserts that “[o]ur case law interpreting Montgomery suggests that it is the nature of a past conviction, not merely the fact of it, that aids the jury in assessing a witness’ credibility.” 186 Ill. 2d at 458. This conclusion is supported neither by the cases the majority relies upon nor by our past jurisprudence.

The majority asserts that Williams II and People v. Redd, 135 Ill. 2d 252 (1990), support the assertion that it is the nature of the felony conviction rather than the fact of it that it is relevant to assessing the defendant’s credibility. As explained above, however, Williams II states that this court continues to adhere to the principle that evidence of prior felony convictions is admissible as impeachment not because of the nature of the felony but because the crimes committed are felonies. See Williams II, 173 Ill. 2d at 82 . Similarly, this court’s discussion in Redd did not concern the question of why prior felony convictions are permitted as impeachment; instead, it discussed only the question of whether the trial court properly applied the Montgomery test. See Redd, 135 Ill. 2d at 324-26 . Consequently, our case law interpreting Montgomery more closely supports the position that it is the fact of the felony conviction and not its nature that is relevant for impeachment.

The majority next relies upon Campbell v. Greer, 831 F.2d 700 (7th Cir. 1987), an opinion from the Seventh Circuit Court of Appeals. The majority quotes the following language from Campbell:

“ ‘There is no precedent for withholding the identity of the felony from the jury when using a conviction to impeach a witness’s testimony, and we are not minded to create one. Most jurors have only an indistinct sense of the range of offenses connoted by the term “felony.” *** Rule 609 and the common law tradition out of which it evolved rest on the common-sense proposition that a person who has flouted society’s most fundamental norms, as embodied in its felony statutes, is less likely than other members of society to be deterred from lying under oath in a trial by the solemnity of the oath, the (minuscule) danger of prosecution for perjury, or internalized ethical norms against lying. If so, this is something a jury should be permitted to take into account in evaluating a witness’s believability. The jury cannot do this if all it is told is that the witness was convicted of a “felony.” The crime must be named. It always has been where impeachment by a prior conviction has been permitted.’ ” 186 Ill. 2d at 458-59 (omission in original), quoting Campbell, 831 F.2d at 707 .

The court’s reasoning in Campbell suffers from two fatal flaws. First, it begins and ends with statements that are factually inaccurate. Second, the conclusion that it draws is not supported by the argument presented.

Campbell asserts that “no precedent” exists to support the concept of informing the jury only of the mere fact of a defendant’s conviction. It also concludes that the crime must be named because this has always been the rule. When the Campbell opinion was issued, at least 11 states permitted impeachment by prior felony convictions to be shown only by the mere-fact approach or left it to the trial court’s discretion to use the mere-fact approach. 1 Thus, the Campbell court was incorrect when it asserted that no authority existed to support the use of the mere-fact approach and that impeachment by a prior conviction has always required the crime to be named.

The Campbell court correctly acknowledged that impeachment by use of a prior felony conviction is allowed because it is believed that “a person who has flouted society’s most fundamental norms *** is less likely than other members of society to be deterred from lying under oath.” Campbell, 831 F.2d at 707 . The court clearly recognized that it is therefore the fact of the conviction rather than its nature that is relevant. Inexplicably, however, the court then stated that the jury cannot consider the impeachment value of a prior felony conviction without knowing the nature of the felony conviction. This conclusion simply does not follow from the argument that it is the fact of the commission of the crime that supports the inference that the person is more likely not to testify truthfully.

The final reason given by the majority to prohibit the trial court from using the mere-fact approach is to avoid “[pJotential prejudice to the defendant.” 186 Ill. 2d at 459. The possible potential for prejudice is easily remedied because the mere-fact approach should only be used if the defendant requests it. If the defendant makes the strategic decision that he is better off if the jury knows only that he has been convicted of a felony and not the nature of the felony, the State should not be in a position to complain that the defendant is possibly subjecting himself to greater prejudice. This decision, while perhaps not easy to make, is certainly no more difficult than the myriad of other strategic evidentiary decisions facing a defense attorney during a trial. Because neither the trial court nor the State would be responsible for the defendant’s decision whether to request the use of the mere-fact approach, neither could be charged with attempting to further prejudice the defendant.

Consequently, trial courts should be permitted to exercise their discretion to determine whether to apply the mere-fact approach. Here, defendant specifically asked the trial court to consider using the mere-fact approach. The trial court rejected defendant’s request not because it found that the mere-fact approach should not be used in this particular case, but because the court believed that it lacked the authority to consider using the mere-fact method. Although the majority opinion removes from the trial court the discretion to determine whether or to what extent evidence is admissible, I believe that the trial court should retain that discretion. Here, the trial court abused its discretion when it refused to consider using the mere-fact method.

I would therefore reverse defendant’s convictions and remand this cause for a new trial at which the trial court should consider defendant’s request to use the mere-fact approach.

JUSTICE McMORROW joins in this dissent.

City of Fairbanks v. Johnson, 723 P.2d 79, 83-84 (Alaska 1986); State v. Geyer, 194 Conn. 1, 15 , 480 A.2d 489, 498 (1984); Fulton v. State, 335 So. 2d 280, 284 (Fla. 1976); State v. Palin, 106 Idaho 70, 74 , 675 P.2d 49, 53 (App. 1983); Sebastian v. Commonwealth, 436 S.W.2d 66, 69 (Ky. App. 1968); State v. Gray, 152 Mont. 145, 156-57 , 447 P.2d 475, 481 (1968); State v. Olsan, 231 Neb. 214, 224 , 436 N.W.2d 128, 134 (1989); Plunkett v. State, 84 Nev. 145, 147 , 437 P.2d 92, 94 (1968); State v. Sims, 298 Or. 360, 364 , 692 P.2d 575, 577 (1984); State v. Means, 363 N.W.2d 565, 569 (S.D. 1985); Voith v. Buser, 83 Wis.2d 540, 546 , 266 N.W.2d 304, 307 (1978).