*1 101 PEOPLE v HUFF 11, 1980, Lansing. Docket No. June at 78-4352. Submitted Decided 4, appeal applied for. November 1980. Leave larceny building, Bay William R. Huff was convicted of a Court, Theiler, appeals, alleging X. Circuit John J. Defendant prosecutor, allowing that the trial court erred on cross- defendant, prior felony examination refer to convic- purposes impeachment. prosecutor tion for The was not specify prior allowed to the nature or the details convic- tion, larceny building. for was also Held: Michigan requires 1. Rule 609 of the Rules of Evidence determining the trial court exercise its discretion in whether probative admitting prior value evidence of convictions outweighs any possible prejudicial similarity effect. to the offense with which a defendant is charged militating against is a factor admission of evidence of conviction. court, compromise allowing 2. The reached the trial jury previously to be informed that had defendant been felony convicted of a but not that it was same trial, presently which the was not an abuse of discretion. Affirmed. Burns, P.J., T. M. dissented. hold that He would where the forming impeaching testimony crime the basis of the is not identified to the effect degree diminished to such that as a matter of law the value assessing the evidence in the defendant’s out-
weighed by prejudicial its effect. He reverse. would [1, 7, [3, [5] [4] [2] 81 Am Jur 81 Am Jur Witnesses 569 et 81 Am Jur 29 Am Jur 8] 29 Am Jur 29 Am Jur 29 Am Jur 9] 29 Am 2d, 2d, 2d, 2d, 2d, 2d, References 2d, Witnesses Witnesses Jur Evidence 346. Evidence 344 et Evidence 320. Evidence 320 et 2d, Evidence 327. § § 569§ § § § for Points 526. § et § seq. seq. seq. seq. Headnotes op op Impeachment — — — Prior Rules 1. Criminal Law Convictiоns Evidence. *2 deciding required to exercise its discretion in A trial court is probative admitting of a defen- value of evidence whether convictions, bearing previous defendant’s credi- dant’s as admitting bility, outweighs any possible prejudicial effect 609). (MRE such evidence Impeachment — — — Similar- 2. Law Prior Convictions Criminal ity op Prior Convictions. similarity previous conviction to the offense with militating against charged admission a defendant is is factor previous purposes impeach- conviction for testimony. defendant’s ment of the — — 3. Criminal Law Prior Convictions Substantive Evidence. evidence, chief, prosecutor may part A not offer of his case in previously that a defendant was convicted of a because such evidence is not substantive evidence of the commission of charged offense. Dependant’s Reputation — — Testi-
4. Criminal Law Relevant mony. thereby places who testifies in his own behalf his A defendant issue, veracity reputation truth and at re- garding as it relates to truth and the defendant’s character veracity is relevant. — — 5. Prior Criminal Law Evidence Convictions.
Testimony regarding good always a defendant’s character case; admissible in a criminal evidence that the defendant has relevant, previous felony not been convicted of a material and admissible. Impeachment — — 6. Criminal Law Prior Convictions. judge by permitting A trial did not abuse his discretion prosecution impeach asking a defendant previously felony, whether he had been convicted of a where probative the trial value of this determinеd that credibility outweighed any possible evidence on the issue of prejudicial option effect and where defendant was left the specify felony; defendant’s whether or in cases where prior conviction is for an offense which is the same similar charged, presently to that with which this method is a he is Opinion op the Court compromise allowing fair and reasonable while, introduce evidence relevant to the defendant’s time, protecting preju- at the same the defendant from unfair dice. Impeachment — — — 7. Criminal Law Prior Convictions Burden op Persuasion. persuade The burden is on a defendant to the trial court that the prior impeach use of evidence of convictions to the defendant if prejudicial he testifies is more than of thе defendant’s credibility. Impeachment — — — 8. Criminal Law Prior Convictions Factors Admissibility. weighed deciding The factors to be whether evidence of a (1) prior conviction should be excluded are: (2) prior credibility, nature of the offense as it bears on whether substantially conviction was for the same conduct for trial, (3) which the defendant is on the effect on the process decisional if the defendant does not out of fear of impeachment by use of the conviction. Burns, *3 T. M. P.J. Dissent Impeachment — — 9. Criminal Law Prior Convictions. impeachment The testimony regarding effect of a defen- prior felony dant’s degree conviction is diminished to such a assessing as a matter of law the value of the evidence in outweighed by prejudicial is far its forming effect impeaching whеre the crime the basis of the jury. is not identified to the Kelley, Attorney Frank J. General, Robert A. Derengoski, George General, Solicitor Mullison, B. Prosecuting Attorney, Wackerly, and Neil P. As- Prosecuting Attorney, people. sistant for the Appellate Derrick Carter, A. Assistant State appeal. Defender, for defendant on Before: T. Burns, P.J., M. and and G. R. Beasley JJ. Deneweth,* judge, sitting Appeals assignment.
* Circuit on the Court of Court Huff, Defendant, Russell J. William Beasley, building in in a larceny a of jury convicted 750.360; being MSA 28.592. After MCL violation first probation, with the six to years five sentenced right. as of jail, appeals he county in months appeal is that argument chief Defendant’s to motion in responding his trial court erred to a previous reference prohibit any chambers The trial court similar offense. for а conviction ruled: * * * made Defendant has "THE COURT: from cross prevent Prosecutor In Limine to
Motion stand, on an issue examining, if he takes the felony conviction. appears that It it in Chambers. "We discussed it’s and that I assume valid has a conviction.
Defendant would building. in a larceny be for opinion showing a conviction "I’ve in our case indicated charged where the Defendant that crime with crime, prejudi- of such type would be same properly not be able to jury that the would nature cial type informa- with that. That our instructions follow tion impeachment purposes and only used for could be difficult them It be most not chief. would follow. Prosecutor, however, if that suggesting, be "The stand, that he and Defendant takes
the will not be appear committed before convictiоn, they, there- had though he had never fore, him if he does permitted to ask they ask that given on a date have a location, thereof. not the details but "So, your insofaras grant I’ll motion I’ve indicated conviction, any specific Mr. Williams. a reference to [sic] Honor, although that’s a Your "MR. WILLIAMS: *4 charge allowing prior suggestion than the actual better course, is, of brought jury, the which be before to pointed for out, being tried that he’s the conviction same any prior felony any to today, we feel that reference rights ato fair to Defendant’s prejudicial be would op the Court in and that effect he would have to have the option in testifying his own not in mind his defense against which be fair taking would a trial or the stand having bring up the Prosecutor the fact that he has which, рrior felony a my opinion, in would prejudicial being impartial be to the jury in this case. Jackson, And we have cited versus which does allow the Court to exercise his discretion. evidently, Michigan
"And Rules of Evidence or Rule 609 still not actually have overruled the idea of Jackson, People versus that the Court does have discre- completely tion allowing to eliminate the idea bring up prior felony Prosecutor to conviction. reason, "So for that we would Move that any felony. exclude reference whatsoever ato But in alternative, up suggestion, take the Prosecutor’s in, only and if it’s allowed in way be felony specific felony. not
"THE objection COURT: The is that there should not any conviction, be all of evidence at Michigan would mean that permitting Rule of such impeachment wrong. apply would If would to that concept, applicable then it’s to all convictions and I’m not say policy one to that decision shouldn’t be made, but even versus Jackson indicates to the certainly contra. And study MSA 609 indicates that it’s a [sic] Supreme conviction of the Court im- [sic] peachment by this is perfectly proper. method that, in "So view unless specific there some given why reason permit we shouldn’t Prosecutor question ask the of whether there was a conviction, felony we would him to authorize do that go and not into detail that conviction. "MR. you, WILLIAMS: Thank Your Honor.” trial, On did and the assistant prosecutor did ask him whether he had been con- victed of a another county 1975.
In this a woman in a placed laundromat her washing wаllet a machine. She saw defen- past then, dant walk her the aisle and while she *5 op Opinion the Court washer, saw defen- in the she loading clothes was her the machine where out to hand reach dant’s was gone. noticed her wallet and then wallet was had placed went to where she immediately She gone, found it was she and when she her wallet manager. When defen- laundry to the complained gone, he had out the rest room where dant came the him if he had taken wallet. manager the asked pointed had. proofs that he While the He denied defendant, not were over- they toward strongly respects, the case could be said whelming. some issue. hinge upon a one-on-one is, circumstances this under the The issue his discretion by the trial abuse did the permitting impeach he been whether had con- asking defendant by 1975, in another but county victed of a felony whether or option with defendant the leaving there no We hold specify felony. not affirm. discretion and abuse of 1, 1978, 1978, 5, January effective March On adopted Michigan Court Rules Supreme which, Evidence, 609 of entitled Impeach- Rule Crime, of Conviction of covers ment Evidence by defendant. Since by issue raised 1978, 609 controls. trial MRE April commenced these rules of preamble provides While courts, binding Michigan are on any challenge invites as to the wisdom Court rule, providing: rules, not be adopting the Court should "In these challenge foreclosing aof
understood as consideration wisdom, meaning rule when a validity or to the by judicially or question brought to the Court * * * these rules prоposal change in a rule. While for a courts, Michigan Court does binding are intend to objection preclude evidentiary op challenge wisdom, court on a based to the validity meaning development separate of properly rule and aof record so as to present challenge for review this Court.”
Since defendant did not avail himself of this procedure, we assume defendant accepts and we find he MRE 609. is bound we Specifically, hold *6 this is case where defendant attacks and seeks to MRE to preclude amend 609 so as abso- lutely any prior and all use convictions to impeach as to We credibility. interpret MRE 609 require the trial to exercise his discretion to decide whether the probative value of admitting previous evidеnce of convictions issue outweighs possible credibility any prejudicial ef- MRE 609 provides: fect.
"(a) For purpose General rule. of attacking the witness, credibility of a evidence that he has been convicted of a shall crime be admitted if elicited from by public him or during established record cross-exami- only nation but if "(1) punishable the crime was imprison- death or in year ment he was excess of one under the law under which convicted, theft, or the crime involved dishon- statement, esty or regardless false punishment, "(2) probative the court determines that the value of admitting this evidence on the of credibility issue out- weighs prejudicial its effect.”1 here, MRE
Applying we note defendant’s prior conviction of larceny building in a meets 609(a)(2) 14, 1980, MRE May was amended effeсtive to read as follows: "(2) probative admitting court determines that the value of this credibility outweighs prejudicial evidence on issue its effect and making articulates on the record the factors in considered the deter- mination.” People op i.e., 609(a)(1), the maxi- MRE requirements
both an of- year exceeds one mum sentence and, dishonesty. perhaps, involving theft fense conviction occurred addition, larceny in MRE delineated period the 10-year within 609(b). in trial court to deter-
The discretion vested admitting value of mine whether on the issue is, effect how- outweighs prejudicial its E.g., in the limitations. within ever, hedged v Baldwin2 interpreted the trial court impeach- in evidence admission preclude of a similar offense. of a conviction purposes ment from Baldwin be as may a fair inference While indicated, holding narrow the trial court hold, trial court error for a it is reversible described exercising the discretion Jackson,3 an identi- conviction for previous that a admission favoring is a factor offense cal or similar Baldwin holds evidence. impeachment of such upon limitation This is one nothing more. *7 court’s discretion. 609(a), proposi- underlying MRE applying remembered.
tions should be
conviction is
prior
felony
a
In a criminal
com-
evidence that
not substantive
thus,
trial;
he stands
mitted the offense for which
the defen-
offer evidence that
may
a
not
prosecutor
part
as
felony
of a
previously
convicted
dant
this conclusion
The reason for
of his case in chief.
commit-
person
previously
is that while a
whо has
subsequent
to commit a
felony
likely
ted a
is more
not,
probability
the mere
than one who has
felony
of
not,
law,
under
substantive
is
3
[2]
405 Mich
323;
In this it well to is remember that police technique from time immemorial a basic solving investigate within has been those crime to the area time at the of the offense who are known to have committed similar crimes. reason investigative procedure plain enough, behind the is namely, person who has been convicted of committing felony likely repeat is far more and commit than another crime someone who has support conclusion, not. Current studies this al- though opinion are there diffеrences as to the reasons for recidivism.4
Investigatory techniques quite are different than admissibility bases for fact evidence. The that a person felony yesterday, year, committed or last is not substantive evidence that he is the one who felony investigation today, committed the under though likely even is far more that he commit- ted the than offense one who has never committed Thus, such indicated, an before. offense as evidence, entitled to offer part chief, its case that a defendant has been previously convicted of a felony._ _ 4Glaser, System, (Indianapo The Effectiveness of a Prison & Parole Co, 1964), 3, Preprison Recidivism, lis: Bobbs-Merrill Ch Influences 49, provides: p prior "The extent of the offender’s criminal record and the likeli- * * * becoming directly hood of his a recidivist are correlated. "* * « prior how matter one counts the volume of [N]0 involvement, magnitude the failure rate tends increase as the However, prior criminality prior criminality increases. the effects of age point, and of increase in seem to counteract other. each After a certain an sentences, recidivism, directly which is related age, inversely also means an increase in related to recidi- explain may tendency stop vism. This of recidivism rates to increasing appreciably prior felony with additional convictions after three, although sharp the first two or is a there increase from none to one conviction.” *8 241 People Huff v Opinion of the Court this support explicitly of evidence
The rules proposition: "(b) crimes, Evidence of other wrongs, or acts. Other prove the
crimes,
not admissible to
wrongs, or acts is
that he acted
person in order to show
character
however,
admissible
may,
It
conformity therewith.
motive, opportunity,
proof of
purposes, such as
other
for
scheme,
doing
an
intent,
plan,
system
of mistake or acci-
or
preparation,
act, knowledge, identity, or absence
material,
such other
whether
the same
dent when
with,
contemporaneous
or
crime, wrongs, or acts are
charged.”5
subsequent to the crime
prior or
defense, he,
in his own
If
testifies
a defendant
witness,
or affirms that his
swears
like
other
any
places
he
his
doing,
true.
In so
will be
in issue. As soon
veracity
for truth and
reputation
truth and
testifies,
veracity
сharacter
he
his
as
are in issue.
and
general
drawn between
A
must be
distinction
traits of character
such
specific
and
character
clearly
This distinction
veracity.6
truth
and
where,
Bouchee,7
after observ
v
drawn
to limit
tendency
modern
has been
ing that
bearing solely
character
inquiry
truthfulness,
said:
witness’s
therefore,
hold,
evidence offered
"We
that character
than
support
credibility,
other
impeach
or
witness’s
crime,
limited
must be
evidence of
conviction for
particular
trait of truthfulness
to the
character
(Footnote
untruthfulness.”
omitted.)_
5
404(b).
MRE
6
(1927),
Bucsko,
1;
See, People
241 Mich
It has the rule in long Michigan been in a criminal case good char- v admissible. Hamilton acter is always People8 is for that authority proposition. Of similar thrust Mead.9 is An party accused who is of good reputation always entitled to the benefit of such proof. States,10 v United
More Hawley recently, court said: good reputation "Evidence of character or of one charged is always with crime It compe- admissiblе. tending
tent as generate a reasonable doubt guilt charged.” of the offense States,11 Shimon v United indicating defen- dant may put in evidence good character, as to his the court said: is, course, "The term 'character’ witness a misno-
mer, for reputation it is not character which is then the issue.”
The court
noted
also
that a witness
may
8
(1874).
These cases must viewed together with MRE 404(a), provides:
"(a) generally. per- Character evidence Evidence of a son’s character or a trait of his character is not admissi- purpose proving ble for the that he acted in conform- occasion, ity particular except: therewith on a "(1) Character of pertinent accused. Evidence of a accused, trаit of his character offered an * * same; to rebut the *10 608(a)
MRE considered, must also be which pro- vides:
"(a) Reputation evidence of character. of of evidence may supported a witness attacked or evidence (1) reputation, subject but to these limitations: may only refer to character for truthfulness or (2) untruthfulness, and evidence of truthful character is only admissible truthfulness has after the character of the witness for by reputation
been attacked or otherwise.”
We do not believe that these rules of evidence were intended to reverse the long-standing rule permits a defendant in a criminal case to testify that he has never been convicted of a Rule 404 felony. is limited in application its to the situation purpose where the of offering the evi- dence is to show that person acted in conformity with the рarticular particular character trait on a occasion. One rationale in support proposi- tion that Rule 608 does not modify long-stand- ing rule is that when charges defendant with commission of a crime and offers proof to support charge, then a sufficient at- tack has been made upon charac- op justify permitting ter to him to and offer regarding good testimony namely, character, his felony. has not been convicted of a that he general Thus, in we conclude that evidence previous has not been convicted relevant, material and It is admissible. support one fact of a conclusion that he is possessed good character and that his worthy of belief. defense,
Where a defendant testifies his own good evidence that he is not of and is character worthy appear equally of belief would to be tempered relevant, but this relevance is and modi- 608, MRE 404 MRE fied Under MRE as indicated. when the evidence takes the previous felony, form of a conviction of a while perhaps equally relevant, such evidence is not necessarily admissible. point,
At this it should be noted that where previous felony evidence of a conviction is admit- following jury always ted, the instruction is re- quired given: to be
"There is evidence that the defendant has [a] criminal This evidence is to be considered conviction[s]. by you only it may insofar as affect the defendant’s credibility [believability] as a It witness. must not be *11 by you crime, guilt considered nor probability as evidence of his of this by you increasing
should be сonsidered as having of his committed the crime.”12 previous felony The evidence of a is always admissible because it is felt that there great jury is a risk that a will fail to follow the court’s instruction and will treat as evidence proof guilt. feeling substantive There is also a 12Proposed 3:1:08; Jury Gillespie, Michigan Criminal Instruction (2d ed), 906.5, 419.46, p Criminal Law and Procedure Form No. 774. § Opinion of the Court jury
that a consider will that since defendant has already guy” committed a he is "bad and regardless punished should be substantive case evidence in the at hand.
It must, should be noted that these conclusions upon necessity, speculation rest since there is foolproof way jury no to know how or whether a (or particular juror) reaches a decision. The fear gives or concern in law which rise tо these deci- usually sions and rules alluded to as fear of "prejudicing” juror and is fear that the probability will translate the into substantive evi- perhaps commission dence of and crime con- vict a where there otherwise is insuffi- guilt. cient evidence of For substantive Michigan these rea- sons, have, courts rules of both evi- adopted by Supreme dence law, Court and case greatly prior felony limited the use of convic- impeach credibility. tions to a defendant’s respects, exclusionary In some these rules run place greater counter to current trends which jurors. By jurors odds, confidence in all are better sophisticated informed, educated more better and against holding than in earlier times. The trend juries they from back out of fear that will Permitting be unаble to understand. career felons judicially to hide behind a erected wall of silence keeping jurors regarding from facts their upon speculation character based that it will con- jurors deciding guilt fuse or innocence is not universally believed to be either wise fair. opinion subject There is some difference of on this leaving judges discretion, an area of compromise. do, MRE 609 is a seems desirable 609(a)(2), applying In the within MRE gave Baldwin, the trial effect to supra, and held fact *12 Opinion of the Court larceny previous felony in conviction was also for building militating against permit- a was a factor ting impeach. it But he believed that to be used permit testify unfair to defendant to and was jury impression silence to leave the with the that previous felony hе had no conviction. We believe justified. that his was concern previous larceny building for conviction credibility. the issue of defendant’s relevant to building Larceny in a involves theft and dishon- esty. part Where, here, there was a one-on- credibility jury issue, one was entitled to as- light in the sess defendant’s including facts, relevant the fact defendant had previously felony. Clearly, been convicted of a proper probative there was value attached to de- previous larceny fendant’s and recent building. in a agree judge
We that with trial to have permitted jury the defendant to without the knowing felony he had been convicted of a would produced not have a fair trial in this case. So the sought compromise. To avoid the supra, yet Baldwin, effects held undesirable in misleading jury regarding to avoid the true pertaining reputation facts to defendant’s for truth veracity, permitted he to im- peach by asking if defendant he had been con- specifying victed of but without felony. appeal, argues On un- this was jury may speculated fair because the have he previously had been convicted of a much more example, crime, serious and heinous criminal degree. says conduct, sexual first He then might conjecture really person that he was a bad regard guilty and find him without to the truth of People v Huff Opinion op the Court argument his denial. The answer to this is that if *13 he, fact, in fear did that scenario he had the option jury previous to to reveal that his larceny building. conviction for a He rea- (as supra) Baldwin, sons that in that case the jury might him convict on the unfair basis that again. because it he did before he did argument previ- answer to that is that where his dishonesty, ous or oifense involves theft false state- ment, he loses benefit of Baldwin as here interpreted by court. following position
The end result defendant’s permit jury is to knowing to defendant without previously felony.
he was convicted of a judge, indicated, we, As like the trial are reluctant permit case, to such a result. In this we believe the by method elected the trial was the most fair and to reasonable both sides of the alterna- tives him. available to Where a defendant testifies honesty defense, in his own his character placed past in issue and evidence of conviction of a felony precautions is relevant. While should carefully jury taken instruct that such goes only credibility evidence and is not sub- juries going evidence, stantive we doubt that are to convict innocent this defendants a result procedure. By token, the same dowe not believe juries believing should be misled into such defen- previous dants have no criminal record. speculations jurors react, these as to how will prefer giving we would to err on the side jury all of the relevant a facts with correct and proper instruction on the law. In this we believe it would be more unfair for this victim of crime, convictions, who has no criminal to have credibility against her matched knowing jury defendant without that defen- Opinion of the Court years been con- earlier three than has less dant (when, felony fact, ear- of a victed dishonesty), than for felоny theft and involved lier preju- he will be run the risk defendant believing man” he is a "bad diced felony and, previous of his virtue felony guilty he is with thus, charged. court’s solution the trial not find We do discretion. an abuse of to be prevented prosecutors must be believe We also repeating overemphasizing from felony be in- previous would not We convictions. prosecutor permit to cross-examine clined to regarding circum- the facts and in detail previ- and the details the nature stances greater poses far This conviction. ous danger *14 permitting jury prejudicing the than of previous regarding that question conviction one permitted here. was split recognize is a of issue there that on this
We authority here deal with Since we on this Court.13 goes speculation in the ovеr what of a matter surprising jurors, that there is it is minds of opinion. difference of support position found here has we take
The
example,
Adams,14
v
State
states. For
other
charged
with abortion
where defendant
direct
abortion,
testified on
he
based on
murder
abortion-type
previous
convic-
to four
examination
again
Upon
asked
cross-examination, he was
tions.
including
prosecutor
convictions,
the
about
the
(abortion).
of the offense
to the nature
a reference
(1980), People
Hollis,
333;
v
v
App
13 People
The Wiscоnsin at 436-437 said: court consistently proof "This has held that former conviction of a may defendant a criminal action that nothing except be received but mere the fact * * * may shown. be Such has permitted for solely purpose going been to the * * * credibility of the witness. upon "When defendant admitted his direct exami- previously nation that he had been convicted entire purpose permitting of the rule proof previous convic- accomplished tions had been and there was no occasion or need for either the defendant attorney district * * * go into further purpose detail. rule prejudice is not to showing minds of the crime, guilty had been of another particularly, as in this the same crime he was on trial.” Kentucky,15 Sebastian Kentucky court
said: impeachment purposes,
"For could Rutherford asked whether or not he had a felony, been convicted of but not felony.” the nature of the 609(a)(2) interpret
We MRE to place discretion in the trial court to weigh value against the prejudicial effect. We believe where belongs. In so we doing, indorse the fully following definition discretion: *15 hold, have repeatedly, again "We held we that and we will not with the interfere the discretion of trial in chancellor these cases clear thereof unless a abuse in manifest the result below. kind of reached The requires weighing determination us a of human before [15] 436 SW2d 66, 69 (Ky App, 1968). App 232 250 Opinion op the Court weigh- complexity, of the utmost and factors economic level, accomplished the local not ing can at best be ** * Where, here, the exercisе of in as these chambers. upon made factual determination discretion turns facts, of discretion involves far the an abuse trier the opinion the judicial between than a more difference itself appellate courts. The term discretion trial and involves will, choice, of an exercise idea competing considera- made between determination reaching such to have an 'abuse’ tions. In order determination, palpably must so the result be that logic fact evidences not grossly the violative will, perversity of not of will but exercise thereof, the exer- judgment but defiance not exercise of cise of reason but passion rather of or bias.”16 cases, v Michigan we note Regarding cases of Luck v United Jones17 rested on two v States,19 States18 and Gordon United both decided In Gor- appellate Federal courts. intermediate don, the court said: contemplated that for the defen-
"Luck
also
it was
present
dant
to the trial court sufficient reasons for
withholding past
from the
in the
convictions
face
convictions admissible.
of a statute which makes such
* * *
underlying assumption
was that
convic-
ordinarily
unless
would
be admissible
this burden
tions
is
peachment by
required
'The
court
to allow im-
met.
time
every
a defendant
” (Footnote
in his
defense.’
omit-
takes
ted.)
stand
own
The Gordon
to bar
opinion
say
went on to
of previous
impeachment
use
convictions
find that
far out-
prejudice
court must
16
(1959).
382, 384-385;
Spalding
Spalding,
v
355
In this
the defendant did
and did
21
[20]
[22]
60 Mich
61 Mich
App
App
App
620;
129;
any prejudicial effect on the jury, interpreted supra, prohibit Baldwin, him specifying previous felony from the because it was charged for the same offense which defendant was committing namely, larceny here, with ing, in a build- permit inquiry
and exercised his discretion to of whether defendant had been convicted of a felony leaving 1975, while defendant with an option prior felony whether to reveal what the conviction was for. Evidence of defendant’s 1975 felony conviction was relevant to the issue of credibility, defendant’s and it was neither an clearly abuse of discretion nor erroneous to so rule. conclusion, we find there was no abuse of permitting
disсretion in to im- peach by asking the him whether he years previously, been, had three convicted of a felony, given option where defendant was specify felony. whether or not to holdWe defendant’s other claims of error to be without merit.
Affirmed.
G. R.
J., concurred.
Deneweth,
(dissenting).
T. M.
P.J.
Burns,
I dissent.
opinions,
In several recent
this Court has held
practice
impeaching
a defendant with
People
Burns,
T. M.
P.J.
Dissent
regard
prior unspecified felony
to a
forming
I
the crime
the basis
agree.
error.
Where
is not
identified to
impeaching
testimony
impeach-
then the
effect of that
jury,
degree
is diminished to such a
ing
as a matter of law the value of the evidence
is far out-
assessing
See, People
v
effect.
weighed by
prejudicial
its
Vincent,
626;
(1980),
94 Mich
I that a majority admitting solution of evidenсe of a compromise without its nature specifying best Rather, I justice. agree serves the interests of with Jones, id. at of this Court statement that: unspecified 'felony’ of evidence of an "[Presentation *18 purposes impeaching for the
conviction credibility says nothing of the conduct that is asserted negatively reliability on the defendant’s as a bear presenting very possibility witness while substantial jury speculation consequent prejudicial impact upon rights very ques- the of the accused. The difficult presented by prior tions the use of evidence of convic- impeachment tions for must be decided rather than * * compromised *.” Indeed, persuasive showing prose- the very by cutor must be made in as the instant cases such impeaching one where the to a pertains crime that is identical tо the one for which the is, standing defendant trial. That the presently prior more similar crime is to the one trial, more the which the defendant is on chance its admission will result in prejudice that and, thus, greater the reason App 101 Mich by Burns, T. M. P.J. Dissent impeaching testimony for its If the exclusion. can- not meet the criteria for admission under impeaching evidence,1 traditional test for all such pertains prior either because it to a crime that present too similar to the one or for some other testimony permitted reason, that should not be theory by deleting under the tenuous that refer- identity impeaching ence to the of the crime its prejudicial effect will be nullified. Much less can justified argument its admission be under an that it is more unfair for the accuser of a defendant to against have credibility his her matched jury of the defendant without knowl- edge previously the defendant has been con- victed of a than it is for the defendant possible prejudice being run the risk of con- by jury merely victed because of a convic- argument tion. Further effectively on reliance this novel will right eliminate a defendant’s to a fair trial unencumbered irrelevant consideration of past his life. holding logic majority as well
opinion reflects neither
the substance nor the
spirit
Michigan
regarding
of established
law
impeachment
Rather,
of criminal defendants.
it
Crawford,
(1978):
See
unwisely prejudice the likelihood of to a criminal defendant return for evidence that has only question minimal value on the credibility. I would reverse.