United States v. Marie J. Belt, United States of America v. Freddie Robinson, United States of America v. Michael Lewis, United States of America v. Harry C. WallsUnited States v. Marie J. Belt, United States of America v. Freddie Robinson, United States of America v. Michael Lewis, United States of America v. Harry C. Walls
Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry and John T. Kotelly, and Douglass J. McCollum, Asst. U. S. Attys., were on the brief for appellee in No. 72-1887.
Alvin Guttag, Washington, D. C. (appointed by this court), was on the brief for appellant Freddie Robinson.
Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and John A. Terry and Lawrence H. Wechsler, Asst. U. S. Attys., were on the brief for appellee in No. 72-1738.
Sherman L. Cohn, Washington, D. C. (appointed by this court), and Joel B. Kleinman* (Student Counsel), were on the brief for appellants Michael Lewis and Harry C. Walls.
Earl J. Silbert, U. S. Atty., John A. Terry, John E. Drury, III, Regina C. McGranery, and Paul L. Friedman, Asst. U. S. Attys., were on the brief for appellee in Nos. 73-1165, 73-1167.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, en banc.
Opinion for the Court filed by Circuit Judge McGOWAN.
Opinion filed by Circuit Judge MacKINNON, concurring in part and dissenting in part.
Circuit Judges ROBB and WILKEY concur in the result.
OPINION
McGOWAN, Circuit Judge:
These criminal appeals were made the subject of en banc consideration because they variously involve issues relating to (1) the range of application of
These cases were held in abeyance to await this court‘s en banc decision in United States v. Henson, 159 U.S.App.D.C. 32, 486 F.2d 1292 (1973). In Henson the court unanimously determined that
We conclude that
I
No. 72-1738 U. S. v. Robinson.
Appellant Robinson was tried on an indictment returned in the District Court prior to August 1, 1972 and alleging only violations of the D.C.Code. He was convicted on two counts of assault with a dangerous weapon (
The evidence of record indicates that appellant and a companion, one Allen, entered a liquor store, and that Allen produced a pistol. Appellant remained in the middle of the store while Allen stole some $150. At one point an employee entered the store, and appellant instructed him to stand still and keep his
An alert passerby noticed the events outside the store, followed the car, and notified the police. All three occupants were apprehended in the automobile, and the spoils of the robbery were recovered.4
Before taking the stand in his own defense, Robinson asked that the prosecution be barred from impeaching him with a prior conviction for second degree murder. This was denied, apparently by reference to the mandatory nature of the statute. Robinson took the stand anyway, and was impeached over his objection. On appeal, he argues that the application of the statute to him was so prejudicial as to constitute a deprivation of due process.5
Nos. 73-1165, 73-1167 U. S. v. Lewis and Walls.
Appellants in these consolidated appeals, and a third individual named in the indictment, were convicted of robbery,
Two points were initially urged upon the division. One was that the evidence against Lewis (who testified without impeachment) was insufficient to support his conviction, and that his conviction should be reversed because of the consequent error in denying his motion for acquittal. The other was that the statute mandating the impeachment of Walls by prior convictions for simple assault and petty larceny was unconstitutional—an issue which had not been raised in the District Court and in support of which appellants mainly relied on the briefs before the court en banc in Henson.6
In their supplemental brief on rehearing, appellants urge two non-constitutional grounds for reversal. The first of these is that, since simple assault is not a felony and does not involve dishonesty or false statement, the trial judge erred in permitting impeachment of Walls by a prior conviction for that offense. The Government concedes the error, as it must in light both of the explicit limiting language of
Appellants’ second non-constitutional claim is that, properly construed,
No. 72-1887 U. S. v. Belt.
Appellant Belt was charged under a two-count indictment alleging violations of (1) the federal offense of possession of narcotics with intent to distribute,
The evidence of record indicates that on January 21, 1972, a police officer, pursuant to a valid warrant, entered appellant‘s bedroom and questioned her about narcotics. During the questioning, the officer was momentarily distracted by a dog. Shortly thereafter, a second officer arrived at appellant‘s bedroom with a packet containing hеroin that he said had just been thrown from appellant‘s window. Neither officer actually saw appellant throw the packet, and appellant denied that she had done so. During the course of her testimony, appellant was impeached with evidence of a 1963 narcotics conviction. Admission of that evidence followed defense counsel‘s objection and a bench conference in which the court indicated its opinion to be that
In this court appellant asserts that (1) the evidence was insufficient to support her conviction for the local offense of possession and (2)
II
Robinson, and Lewis and Walls, involve indictments charging only D.C.Code offenses. They were tried in the District Court only because the indictments were returned prior to August 1, 1972—the end of the 18-month transitional period leading to exclusive jurisdiction over such indictments in the Superior Court of the District оf Columbia. These cases, thus, present initially the question of whether
As noted above, appellants Lewis and Walls argue the first of these questions in terms of Section 305‘s asserted inapplicability to any criminal offense—federal or local—tried in the District Court. Since that argument was first propounded to us, we have, in Hairston, excluded U.S.Code crimes from the statute‘s reach. That result, however, does not carry with it a similar conclusion as to the trial of D.C.Code offenses in that court under the transitional jurisdiction.
Hairston turned upon the manifest purpose of Congress, in the sweeping judicial reorganization effected by the District of Columbia Court Reform and Criminal Procedure Act of 1970, 84 Stat. 473, to alter sharply the pattern of the past. As we there said (at 1054 of 495 F.2d):
The intention of Congress in the D.C. judicial reorganization was to create an independent judicial system to be responsible for “local” matters, and to free the federal courts of the District of that responsibility. The jurisdiction of the latter was to be reshaped in a manner more closely paralleling that of the other Article III courts of the nation. . . . Even the most superficial examination of the legislative history of the Court Reform and Criminal Procedure Act reveals that Congress was both aware of the longstanding unique nature of the federal courts of the District of Columbia and intent upon substantial alteration of that status . . .
We also noted (at 1056) that “. . . the transfer of jurisdiction over D.C.Code crimes from the federal courts to the local courts was achieved in carefully phased steps.” This was to prevent undue strain on the new local court system during its infancy. The heavy volume of D.C.Code indictments made gradual transfer especially necessary in this area of the law; and the scheme followed in this respect was to retain jurisdiction in the District Court ovеr D.C.Code indictments for the seven most serious felonies, filed between February 1, 1971, the
The considerations giving rise to our holding in Hairston do not control the issue to which we are now speaking. There we said (at 1051-2) that to apply Section 305 to U.S.Code offenses
would place criminal defendants prosecuted in the federal courts of the District of Columbia on a different footing from those tried in any other federal circuit, although both classes of defendants may be charged under the same U.S.Code provisions. This treatment of similarly situated persons in a different fashion is fraught with equal protection overtones . . .
The “similarly situated persons” so referred to are, of course, those charged with U.S.Code offenses; and our concern in Hairston was that persons so charged should not be tried in the federal courts of the District of Columbia under different evidentiary rules than they would be subject to if tried for the same offenses in federal courts outside the District.
Appellants insist that the same concept of equal protection, about which we professed concern in Hairston, requires that any criminal defendant tried in the United States District Court for the District of Columbia must receive the same treatment he would get if tried in a federal court elsewhere. The circumstances are not, however, parallel. In the exercise of its power to legislate for the District of Columbia,
The situation is analogous to that which obtains in all of the 50 states, i. e., a person indicted under the criminal laws of a state may be tried in a state court under evidentiary rules different from those employed by the federal courts within that state in the trial of U.S.Code offenses. No one has ever suggested that that violates the Constitution. In any event, for purposes of the exclusive jurisdiction over certain D.C.Code crimes temporarily vested in the District Court here during the transitional period, the District Court is functioning as a “state” court.10 United States v. Brown, 157 U.S.App.D.C. 311, 483 F.2d 1314 (1973), upon which appellants’ principal reliance must rest since, unlike United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972), it involved a D.C.Code offense, turned not upon equal protection but upon a finding that certain provisions of the Federal Criminal and Appellate Rules superseded the local bail statute. More to the point, and virtually dispositive of appellants’ claim, is United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145 (1973), cert. denied, October 29, 1974, in which we held that the insanity defense provision of the D.C.Court Reform and Criminal Procedure Act applied to the trial of a D.C.Code offense in the District Court during the transitional period. In Greene we explicitly disallowed an equal protection contention founded upon the fact that U.S. Courts outside the District (which, of course, try only U.S.Code crimes) are not bound by any such rule in the insanity field.
III
Having concluded that Section 305 applies to the trial in the District Court of D.C.Code indictments returned before August 1, 1972, we turn to the question of what happens in the case of indictments charging both U.S.Code and D.C.Code offenses.11 The division of this court that decided Hairston exhibited its awareness of this problem, and stated a view as to its proper solution in these words (n. 13 at 1054 of 495 F.2d):
To the extent that confusion in the conduct of trials may be anticipated in those cases where the United States Attorney uses the authority given him under the reorganization statute to combine local and federal crimes in the same indictment, resulting in their trial together in the United States District Court, it would appear that the federal forum‘s evidentiary law would govern impeachment by prior conviction. The United States Attorney is not, of course, bound under the statute to combine local and federal charges, and is, accordingly, under no inescapable necessity to try local crimes under other than local law.
With Belt now presenting the issue to the court en banc, we adopt the approach of the division in Hairston. It is patently not feasible for the District Court to try a defendant, charged with both local and federal offenses, under differing evidentiary rules; and it would be an indefensible imposition upon slender judicial resources to contemplate separate trials for the federal and local counts in such indictments, if indeed the latter approach could be thought to be within the purview of the statutory grant of jurisdiction. Thus, if the United States Attorney elects to combine local offenses with federal, he must do so in the knowledge that the trial will be conducted under federal evidentiary law.
Given our holding in Hairston that
This final formulation of the impeachment rule was reached in the Conference Committee, whose report makes clear that the discretionary standard is (1) confined in its application to criminal defendants where impeachment “presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record,” and (2) does not operate in the case of сonvictions for offenses involving dishonesty or false statement, which are always to be admitted. These latter offenses are, however, narrowly defined by the Conference Committee in these terms:
By the phrase “dishonesty and false statement” the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused‘s propensity to testify truthfully.
H.R.Rep. No. 93-1597, 93rd Cong., 2d Sess., p. 9.
By the terms of the enacting statute, the Federal Rules of Evidence will take effect on July 1, 1975. They will apply to “actions, cases, and proceedings brought after the rules take effect.” They will also apply to “further procedure in actions, cases, and proceedings then pending, except to the extent that application of the rules would not be feasible, or would work injustice, in which event former evidentiary principles apply.”13
Before
In United States v. Bailey, 138 U.S.App.D.C. 242, 426 F.2d 1236 (1970), a division of this court carefully reviewed these claims, finding them not insubstantial but concluding that Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), foreclosed their allowance.15 Spencer did not directly involve impeachment by prior conviction, since what was under attack in that case was a Texas statutory procedure under which the jury was, for purposes of an increased sentence for recidivism, informed of a defendant‘s criminal record prior to its resolution of his guilt or innocence of the pending charge. The constitutional challenge to this procedure was articulated in a manner very similar to the objections voiced to impeachment by prior conviction; and the Supreme Court, in sustaining the Texas statute, purported to find support for that result in the impeachment analogy. Both the majority opinion of Justice Harlan, and a dissenting opinion by Chief Justice Warren, contained observations about the practice of impeachment by prior conviction which were at odds with any claim of its inherent unconstitutionality.
In reaching the result it did in Spencer, the majority was at some pains to stress the necessity in a federal system of a considerable degree of latitude within the constitutional framework lest there be “a wholly unjustifiable encroachment by this Court upon the constitutional power of States to promulgate their own rules of evidence to try their own state-created crimes in their own state courts . . . ” 385 U.S. at 568-69, 87 S.Ct. at 656. Justice Stewart, concurring specially, said (at p. 569, 87 S.Ct. at p. 656) that “(I)f the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own notions of enlightened pоlicy, I would not join the Court‘s opinion. . . . The question is whether those procedures fall below the minimum level the Fourteenth Amendment will tolerate.”
With the new dispensation brought about in the District of Columbia by the Court Reorganization Act, creating for the first time a relationship between this court and the local courts of the District more nearly like the one obtaining between federal and local courts elsewhere in the country, we cannot be oblivious of considerations of a similar nature. We deal here with an evidentiary rule promulgated by the legislature for the trial of local crimes in the local courts. For the purposes of the cases before us, the
As in the case of the old, the constitutional challenge to the new statute is total. An alternative reason for finding invalidity is, however, now said to be not that any impeachment at all is bad but, rather, that the statute is mandatory, leaving no room for the judge in a particular case to exclude prior conviction evidence because he believes its probative value on credibility to be outweighed by its prejudicial effect. The constitutional argument in these precise terms has heretofore been pressed upon the D.C. Court of Appeals—the “supreme court” of the District of Columbia in the new era ushered in by court reorganization. In Dixon v. United States, 287 A.2d 89 (1972), cert. denied, 407 U.S. 926, 92 S.Ct. 2474, 32 L.Ed.2d 813 (1972), the D.C. Court of Appeals rejected this argument, as well as the earlier formulations of the constitutional claims which we had, in Bailey, found to be barred by the language used in Spencer.
In doing so, the DCCA was obliged to recognize that there are words in the Spencer opinions that may be thought to look the other way. Justice Harlan, in his opinion for the majority, enumerated a number of situations in which evidence оf prior crimes is now, and has long been, held to be admissible in criminal trials. The last in his extended series of examples was “when the defendant has testified and the State seeks to impeach his credibility . . .” He went on to say that (at p. 561, 87 S.Ct. at p. 652):
. . . In all these situations . . . the jury learns of prior crimes committed by the defendant, but the conceded possibility of prejudice is believed to
be outweighed by the validity of the State‘s purpose in permitting introduction of the evidence. The defendants’ interests are protected by limiting instructions . . . and by the discretion residing with the trial judge to limit or forbid the admission of particularly prejudicial evidence even though admissible under an accepted rule of evidence . . .
It is this last clause, of course, that gives rise to the contention that the Supreme Court in Spencer must be taken as having declared that the constitutionality of impeachment by prior conviction depends upon the saving grace of discretion.17 Judge Kern, in his opinion for the DCCA, stated this argument fairly and dealt with it directly. His conclusion was that, when read in the entire context of the majority opinion, this statemеnt could not bear the weight sought to be attributed to it, that is to say, it cannot be characterized as a conscious and purposeful assertion by the Supreme Court that a statute permitting impeachment by prior conviction is bad on its face if it makes no provision in terms for the exercise of discretion.
Our own reading of Spencer coincides with that of Judge Kern.18 In the paragraph of Justice Harlan‘s opinion immediately following the language in question, he said as follows (at p. 562, 87 S.Ct. at p. 652):
This general survey sufficiently indicates that the law of evidence, which has been chiefly developed by the States, has evolved a set of rules designed to reconcile the possibility that this type of information will have some prejudicial effect with the admitted usefulness it has as a factor to be considered by the jury for any one of a large number of valid purposes . . . To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threatеn other large areas of trial jurisprudence. . . .
This characterization of his reasoning by analogy from the many instances in which prior crimes evidence is admissible, especially when read in conjunction with his subsequent observations about the duty of the Court to eschew inflexibility in constitutional interpretation where local evidentiary rules are involved, makes it unlikely that Justice Harlan intended, by his generalized reference to judicial discretion, to declare the invalidity of a statute of the kind now before us.
What Spencer does appear to contemplate is that a legislature may, without impingement upon the Constitution, conclude that the public interest in getting before the jury this evidence bearing upon the credibility of the defendant-witness outweighs its inescapably prejudicial effect. A belief that such constitutional latitude exists is reflected in the fact that many states, as in a few federal circuits (note 12 supra), the admissibility of prior convictions for impeachment purposes is treated as a mandatory matter.19
The enactment by Congress of a statute to the same effect for the trial of local crimes in the District of Columbia does not appear to us to be so demonstrably in conflict with the Constitution as to warrant our nullification of the
V
In the light of the foregoing, the convictions appealed from in Nos. 72-1738 (Robinson), and Nos. 73-1165 and 73-1167 (Lewis and Walls), are affirmed, with the exception that Robinson‘s convictions for assault with a dangerous weapon are vacated.
No. 72-1887 (Belt) presents a more difficult problem. There we have held that trials in the District Court of indictments combining U.S. and D.C.Code offenses are to be conducted under federal evidentiary law. That was not done in this case.21 The transcript indicates that the judge felt bound to apply the mandatory provisions of
It is argued that such a remand is not required here since Belt was acquitted of the U.S.Code offense and, even if the trial court should on remand find reversal necessary, impeachment could be had by the Government at the new trial of the D.C.Code оffense. However, the fact remains that, because the prosecutor chose to combine U.S.Code and D.C.Code offenses for trial in a federal court, Belt was entitled to be tried under a rule of evidence that afforded the trial court discretion to exclude impeachment by prior conviction. Full recognition and protection of the integrity of that important procedural right does not admit of its forfeiture by the chance that the jury subsequently elected, for whatever reason, to acquit on the federal charge. The possibility that a second conviction may well result on a retrial, if one is actually ever held, does not alone suffice to deprive this defendant of her entitlement to the court‘s reexamination of the admissibility of the prior conviction in the first trial.
Judgment shall be entered in accordance with the foregoing.
MacKINNON, Circuit Judge (concurring in part and dissenting in part):
I concur in the foregоing opinion insofar as it affirms the convictions of Robinson, Lewis and Walls, and also in its conclusion that
However, I must conclude that the remand of the judgment of conviction in Belt is a meaningless exercise, and therefore I would also affirm that conviction.
On remand of Belt, the District Court will be required to rule on the admissibility of impeachment evidence with respect to the U.S.Code offense. This is in itself an absurdity because there was an acquittal on that count and it is no longer pending. Even if one views the trial court as ruling on the admissibility, under federal evidentiary rules, of the prior narcotics conviction as of the time when both federal and D.C. charges were still pending before the court, the most relief the court can afford appellant is a reversal of the conviction on the D.C. offense. However, on retrial appellant will be charged solely with a D.C.Code offense. In this situation, Part II of the fоregoing opinion holds that if appellant testifies, section 14-305 applies and the prior conviction will be admissible for purposes of impeachment exactly as it was admitted at the first trial. Thus a retrial will likely involve exactly the same evidence as the original trial. While the exercise of her right “to the court‘s reexamination of the admissibility of the prior conviction in the first trial” (Majority Op. at --- U.S.App.D.C. at page ---, 514 F.2d at page 850) may be of some academic interest, that re-examination will in the end have no practical effect on Belt‘s substantive rights. It is most inappropriate for this court to compel the District Court to squander its time by engaging in pointless academic exercises.
Nor is there any reason to infer that the presence of the U.S.Code charge, and the evidence offered in support thereof, contributed to the jury‘s finding of guilt on the D.C.Code charge, and that appellant was prejudiced thereby. The jury was expressly instructed to consider each offense separately (Tr. 221), and the finding of guilt on the D.C.Code offense was amply supported by substantial evidence.
The Belt case presents the clearest example of a “(defect) which do(es) not affect the substantial rights of the parties.”2 Under such circumstances,
I would affirm the conviction of Belt on the D.C.Code offense and thus respectfully dissent to its remand. Otherwise, I concur in the result expressed in the majority opinion.4
Notes
(a) No person is incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of a criminal offense.
(b)(1) Except as provided in paragraph (2), for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered, either upon the cross-examination of the witness оr by evidence aliunde, but only if the criminal offense (A) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (B) involved dishonesty or false statement (regardless of punishment). A party establishing conviction by means of cross-examination shall not be bound by the witness’ answers as to matters relating to the conviction.
(2)(A) Evidence of a conviction of a witness is inadmissible under this section if
(i) the conviction has been the subject of a pardon, annulment, or other equivalent procedure granted or issued on the basis of innocence, or
(ii) the conviction has been the subject of a certificate of rehabilitation or its equivalent and such witness has not been convicted of a subsequent criminal offense.
(B) In addition, no evidence of any conviction of a witness is inadmissible under this section if a period of more than ten years has elapsed since the later of (i) the date of the release of the witness from confinement imposed for his most recent conviction of any criminal offense, or (ii) the expiratiоn of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction of any criminal offense.
(d) The pendency of an appeal from a conviction does not render evidence of that conviction inadmissible under this section. Evidence of the pendency of such an appeal is admissible.
I would not at present go so far as to hold where an indictment charged both federal and D.C.Code offenses, but the federal offense was dismissed during trial, that thereafter the rules of evidence of the District of Columbia courts would not be applicable.On the hеaring of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.
(Emphasis added.)
Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.
Viewing the evidence most favorably to the prosecution, as we must, Crawford v. United States, 126 U.S.App.D.C. 156, 375 F.2d 332 (1967), we find it ample to support this conviction. The evidence indicates that both Robinson and Allen participated in the robbery inside the store, and that they left jointly with the store owner as hostage. While the record suggests that appellant may have been heading for the car at the time his companion took the hostage‘s watch, there was adequate evidence from which the jury could have concluded that that robbery was not the companion‘s independent frolic or unrelated to the general criminal scheme. Given appellant‘s participation in the events in the store, the question of his relationship to the subsequent robbery of the hostage turned largely on the credibility of his assertion that that part of the venture was his companion‘s independent frolic. Credibility is primarily an issue for the jury. See, e. g., Bush v. United States, 126 U.S.App.D.C. 174, 375 F.2d 602 (1967).
Appellant additionally maintains that the court‘s instruction on aiding and abetting was erroneous. We find, however, that it wаs consistent with our decision in Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969).
I cannot join in the observations contained in notes 13 and 16 of the Majority Opinion. They are completely unnecessary to the decision in these cases and thus are merely dicta. Moreover, I consider the underlying logic of the treatises cited in note 16 to be faulty in that it would take from the jurisprudence of states and foreign nations procedures that are most favorable to defendants and engraft them into our jurisprudence without adopting any of the offsetting procedures those fora apply to insure that justice is done for the public as well as the accused. The result of such changes would be a criminal procedure overbalanced in favor of the accused and against the interests of society, and it was partially to avoid precisely such procedures, with the detrimental result they cause, that Congress enactedLewis and Walls each testified, saying that they had been walking along the street innocently when they were suddenly arrested. Lewis said that the hawk-billed knife was his own, but could not remember when he had acquired it. Walls offered no explanation as to how the Benrus watch happened to be in his boot.
Our disposition of these appeals also enables us to forego consideration of what we consider to be an important question raised in respect of the Henson and Brown cases, both of which were prosecutions for United States Code offenses as contrasted with the Jeffries and Marshall prosecutions under the District of Columbia Code. If the new D.C. impеachment statute is to be interpreted as applicable to federal criminal trials, it would mean, first, that the federal courts in the District of Columbia would be placed upon a different footing, with respect to the admissibility of evidence of prior convictions, from the federal courts in the other ten circuits, which remain free to devise their own rules of admissibility under
In addition to its jurisdiction as a United States district court and any other jurisdiction conferred on it by law, the United States District Court for the District of Columbia has jurisdiction of the following:
(3) Any offense under any law applicable exclusively to the District of Columbia which offense is joined in (such) information or indictment with any Federal offense.
Both the Model Code and the Uniform Rules make an exception where the defendant opens up the question by adducing affirmative evidence of his good character. The same exception appears in the English statute, along with two others, namely, where the accused has testified against a co-defendant, or has impugned the character of the prosecutor or his witnesses. The Criminal Law Revision Committee, appointed by the Home Secretary in 1959 to examine the criminal laws of England and Wales, in its 1972 report on evidence recommended no substantial change in this area. The report of that Committee also makes clear, however, that in several other respects the law of criminal evidence in England does not favor the defendant, such as the absence of any privilege against self-incrimination, and the drawing of adverse inferences from the defendant‘s failure to take the stand or to mention before trial any fact relied upon in his defense.
Whatever the balance of merits or demerits may be thought to be with respect to a rule barring impeachment of criminal defendants, it does eliminate the erratic and appeal-breeding aspects of the discretionary approach—considerations which also, it would seem, may rationally enter into a legislative judgment in favor of mandatory admissibility. In Weaver v. United States, 133 U.S.App.D.C. 66, 408 F.2d 1259, cert. denied, 395 U.S. 927, 89 S.Ct. 1785, 23 L.Ed.2d 245 (1969), we said (at page 1272):
(T)he degree of utilization of that (discretionary) power will inevitably vary with the temperament and attitudes of the individual judge—a phenomenon hardly peculiar to trial judges, as distinct from their appellate brethren.
We also appended to our opinion in that case an accounting of the disposition of appeals involving the Luck issue in the years since that case was decided. That history would not appear to offer much solace to defendants generally.
. . . when prior convictions are introduced to impeach the credibility of a defеndant who testifies, a specific purpose is thought to be served. The theory is that the State should be permitted to show that the defendant-witness’ credibility is qualified by his past record of delinquent behavior. In other words, the defendant is put to the same credibility test as any other witness. A defendant has some control over the State‘s opportunity to introduce this evidence in that he may decide whether or not to take the stand. Moreover, the jury hears of the prior convictions following a defendant‘s testimony, and it may be thought that this trial context combined with the usual limiting instruction results in the jury‘s actually behaving in accordance with the theory of limiting instructions: that is, that the prior convictions are only taken into account in assessing the defendant‘s credibility.
. . . In the case of impeachment, as in all examples (of prior crimes evidence) cited by the Court, the prior convictions are considered probative for a limited purpose which is relevant to the jury‘s finding of guilt or innocence . . .
In all the situations pointed out by the Court, the admission of prior-crimes evidence rests оn a conclusion that the probative value of the evidence outweighs the conceded possibility of prejudice. There is no middle position between the alternatives of admission or exclusion because, if the evidence is to serve the purpose for which it is considered probative, it must be admitted before the jury decides whether the defendant is guilty or innocent. The problem thus becomes the delicate one of balancing probative value against the possibility of prejudice, and the result for most state and federal courts (including this Court in the exercise of its supervisory power over proceedings in federal courts) has been that the trial judge is given discretion to draw the balance in the context of the trial. In view of this uniform tradition, it is apparent that prior-convictions evidence introduced for certain specific purposes relating to the determination of guilt or innocence, other than to show a general criminal disposition, would not violate the Due Process Clause.
We also remark that it was the Supreme Court that, subsequent to Spencer, proposed Rules of Evidence to the Congress which embraced a rule on impeachment by prior conviction eliminating the exercise of discretion by the trial judge.
Two states have gone beyond Luck in excluding evidence of prior convictions, see State v. Santiago, 53 Hawaii 254, 492 P.2d 657 (1971) (by judicial decision); State v. Roth, 200 Kan. 677, 438 P.2d 58 (1968) (by statute).
Thirteen states have adopted some form of the Luck rule, see State v. Martin, 217 N.W.2d 536 (Iowa 1974); People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973); People v. Beagle, 6 Cal.3d 441, 99 Cal.Rptr. 313, 492 P.2d 1 (1972); State v. Driscoll, 53 Wis.2d 699, 193 N.W.2d 851 (1972); Spaulding v. State, 481 P.2d 389 (Alaska 1971); People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971); State v. Toppi, 275 A.2d 805, 810 n. 5 (Me.1971) (dicta); State v. Marquez, 160 Conn. 47, 273 A.2d 689 (1970); Cotton v. Commonwealth, 454 S.W.2d 698 (Ky.1970); State v. Cote, 108 N.H. 290, 235 A.2d 111 (1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968); People v. Duffy, 44 A.D.2d 298, 354 N.Y.S.2d 672 (1974); State v. Coca, 80 N.M. 95, 451 P.2d 999 (1969, App.).
Twelve states have, by judicial decision or statute, made Luck-type discretion not available, see State v. Lombardi, 319 A.2d 347 (R.I.1974); State v. Prather, 290 So.2d 840 (La.1974); People v. Yeager, 513 P.2d 1057 (Colo.1973); State v. Shepherd, 94 Idaho 227, 486 P.2d 82, 85 (1971) (“Because of the practicalities involved in the application thereof, we do not feel Idaho is ready for what might be deemed the more enlightened rule now extant in the District of Columbia.“); Commonwealth v. West, 357 Mass. 245, 258 N.E.2d 22 (1970); State v. Morris, 460 S.W.2d 624 (Mo.1970); State v. Gandee, 73 Wash.2d 978, 439 P.2d 400 (1968); State v. Hawthorne, 49 N.J. 130, 228 A.2d 682 (1967); State v. Rush, 248 Or. 568, 436 P.2d 266 (1967); Robinson v. State, 507 P.2d 1296 (Okl.Cr.App.1973); Howard v. State, 480 S.W.2d 191 (Texas Cr.App.1972); Dickerson v. State, 46 Ala.App. 183, 239 So.2d 325 (1971).
The status of one state is somewhat unclear, compare State v. West, 285 Minn. 188, 173 N.W.2d 468 (1969); with State v. Stewart, 297 Minn. 57, 209 N.W.2d 913 (1973).
We note, however, that no state court has struck down as unconstitutional a statutory denial of trial judge discretion to exclude prior convictions under a Luck-Gordon analysis. (Some decisions have implied that the аdmission of highly remote prior convictions may raise constitutional problems; and Hawaii, in the case cited above, found unconstitutional under both the Hawaii and Federal Constitutions any admission under statute or judicial rule of prior convictions for impeachment.)
“. . . (I)t does no violence to the privilege (against self-incrimination) that a person‘s choice to testify in his own behalf may open the door to otherwise inadmissible evidence which is damaging to his case. See Spencer v. Texas, 385 U.S., at 561 and n. 7 (87 S.Ct. 648 at 652, 17 L.Ed.2d 606); cf. Michelson v. United States, 335 U.S. 469 (69 S.Ct. 213, 93 L.Ed. 168) (1948).”