Impeachment With Prior Felony Conviction

As illustrated by Darren Chaker in other articles, under Article I, section 28, subdivision (f) of the California Constitution, “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” The California Supreme Court has consistently held, however, that a trial judge may nevertheless exclude a prior felony conviction for impeachment purposes under Evid. Code, § 352, when such conviction is more prejudicial than probative. (People v. Castro (1985) 38 Cal.3d 301; People v. Beagle (1972) 6 Cal.3d 441.) It is important to point out, however, that these cases concern the impeachment of criminal defendants whose felony convictions may prevent them from testifying in their own defense. (People v. Beagle, supra, 6 Cal.3d at 453 [“One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.” However, “[n]o witness, including a defendant who elects to testify in his own behalf is entitled to false era of veracity.”] and People v. Castro, supra, 38 Cal.3d at 319 [erroneous admission of defendant’s felony conviction deemed harmless error].)

There is, of course, a world of difference between excluding an impeaching felony so that criminal defendant can take the witness stand, and refusing to allow a criminal defendant to impeach the prosecution’s chief witness — whose credibility is the linchpin to the case — particularly where the defendant is facing a sentence of life in prison without the possibility of parole. (See In re Ferguson (1971) 5 Cal.3d 525 [conviction reversed when the prosecution failed to disclose that one of the chief prosecution witnesses had suffered a federal felony conviction for taking a stolen vehicle across state lines (Dyer Act) (Id. at 530.) The “case came down to one of credibility as to whether” the defendant or the prosecution witnesses were telling the truth. (Id. at 529.) The “credibility” of the prosecution witnesses versus that of the “was the crucial issue” (Id. at 535.)].)

It is undisputed that a criminal defendant has long had a right to show that the prosecution’s main witness is a convicted felon which casts doubt on his credibility. “The modern justification for the practice must be that prior felony convictions may, somehow, be relevant to the witness’ veracity.” (People v. Castro, supra, 38 Cal.3d at 313.)

“The classic statement of the rationale for felony impeachment is that of Justice Holmes …. [When] it is proved that a witness has been convicted of crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction is disposed to show. It is from that general disposition alone that the jury is asked to infer a readiness to lie in a particular case, and thence that he has lied in fact. The evidence has no tendency to prove that he was mistaken, but only that he has perjured himself, and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit” (People v. Castro, 38 Cal.3d at 314, quoting Gertz v. Fitchburg Railroad (1884) 137 Mass. 77, 78) emphases added).

Lastly, if an avenue of impeachment is not used by a trial attorney in the criminal arena, then “The Sixth Amendment’s right of an accused to confront the witnesses against him is … a fundamental right…. right essential to a fair trial in a criminal prosecution.” (Pointer v. Texas (1965) 380 U.S. 400, 403-406; see also Cal. Const., Art. I, sec. 15), and Pen. Code, sec. 686, subsection (3)].)

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