“Judges must be cautious in appreciating prior convictions since cases must be tried without prejudice or bias and be based solely on the existence of the crime”
“The right to examine witnesses is an essential element in the conduct of a trial… [T]he object of all examination of witnesses is to elicit facts to show the truth, and it is not only the province of the judge, but it is also his duty to see that facts within the knowledge of a witness are elicited…“(Francisco, Evidence citing 98 Corpus Juris Secundum 10).
The witness is not obliged to respond to irrelevant or extraneous matters in a litigation.
However, “[a] witness is bound to answer his previous final conviction for an offense. This simply means that a witness has a right to refuse to answer a question about his having been merely charged with an offense…” (Francisco, Evidence).
“Cross-examination of defendant as to the facts peculiarly within his knowledge, but which might be established by court record of his conviction in another cause or court, does not violate the rule which requires that the best obtainable evidence be produced” (Francisco, Evidence citing Territory v. Wright, 37 Hawaii 40).
The Rule requiring the witness to answer the fact of his or her previous conviction was present in the 1989 Revised Rules on Evidence which was patterned from the United States Federal Rules on Evidence.
The same Rule was retained in the 2019 amendments of the Rules on Evidence (see Section 3(5), Rule 132).
This Rule was reinforced in the 2019 amendments when it introduced a new provision that laid down the standards by which a witness may be impeached on a past conviction. It requires that “(a) the crime was punishable by a penalty in excess of one year; or (b) the crime involved moral turpitude, regardless of penalty” (see Section 12, Rule 132).
It is interesting to note that “[t]he Rule has a long and eye-opening history.” A seventeenth century version of the current rule “barred all convicted felons from the witness stand.”
According to scholar Jeffrey Gilbert, “[W]here a Man is convicted of Falsehood and other Crimes against the common principles of Honesty and Humanity, his Oath is of no weight” (George Fisher, Evidence, Third Edition).
“Common-law judges believed the ban against testimony by convicted felons served to keep likely liars from the witness stand. No doubt those same judges thought the most likely liars of all were the criminal defendants, who had by far the strongest motivations to lie” (George Fisher, Evidence, Third Edition).
In England and most American jurisdictions, “the rule barring felons from the witness stand was abolished in the mid-nineteenth century. Legislators replaced it with a new rule permitting felons to testify but also permitting the opposing party to impeach such witnesses with evidence of their past crimes” (George Fisher, Evidence, Third Edition).
Observers soon saw that the new law permitting defendants to testify, “no doubt intended by the legislators to help assure fair trials, instead exposed defendants to damaging cross-examination about past wrongdoings.”
In 1867, Judge Seth Ames of the Massachusetts Superior Court “scoffed at the notion that the new law will aid criminal defendants” (George Fisher, Evidence, Third Edition).
Ames argued that the law left an accused with two unpleasant alternatives.
First, he could choose silence and face almost inevitable conviction. Second, “[t]hose defendants who had criminal records will be ‘torn to pieces by cross-examination – presumably because their past convictions could be offered to impeach them’” (George Fisher, Evidence, Third Edition).
Decades later, New York Prosecutor Arthur Train took Judge Ames’s analysis further.
Train first of all confirmed that “those defendants who ‘do not testify… will probably pay the usual penalty’ for their silence… On the other hand, those who testify do testify ‘are more likely to be convicted’ on the records” (George Fisher, Evidence, Third Edition).
“The upshot, in Train’s eyes, was that the law purported to grant defendants a new right to testify at trial instead deprived those defendants who had criminal records of the right to any meaningful trial. The law left them with little alternative but to seek the best plea bargain they could get” (George Fisher, Evidence, Third Edition).
In a legal article written by Theodore Eisenberg and Valerie P. Hans in 2009, they used data “from over 300 trials in four large counties (in the United States) to study the existence of a prior criminal record and defendants’ testifying at trial, between defendants’ testifying at trial and juries’ learning about criminal records and their decisions to convict or acquit…” (George Fisher, Evidence, Third Edition citing 94 Cornell L. Rev. 1353 [2009]).
The “[f]our sites [that] participated in the data collection [are]: The Central Division, Criminal, of the Los Angeles County Superior Court, California; the Maricopa County Superior Court (Phoenix), Arizona; the Bronx County Supreme Court, New York; and the Superior Court of the District of Columbia [Dates of data collection from 2000 and 2001] …”
Based on the analyses of the data collected, the authors concluded that “… [t]he criminal record effect could be even stronger than we have found in these analyses; the experimental work suggests that having a record for a similar offense creates the most bias, and we had information only about the offense of a defendant’s criminal record, not its type ….”
They further said that “[t]he enhanced conviction probability that prior record evidence supplies in close cases may well contribute to erroneous convictions …. [P]rosecutors making charging decisions and judges considering the prejudicial effect of prior records should… account [for] the dramatic effect that knowledge of criminal records can have in close cases.”
Judges must be cautious in appreciating prior convictions since cases must be tried without prejudice or bias and be based solely on the existence of the crime. However, past conduct and convictions may still be presented to show a propensity to commit a crime or a tendency to lie.
