J. SKELLY WRIGHT, Circuit Judge:
This case presents once again the troublesome problem of introducing evidence of a defendant's prior convictions to impeach his credibility, as authorized by 14 D.C.CODE § 305 (Supp. V 1966). Appellant asks that we reverse his conviction because the trial court's ruling on the admissibility of appellant's prior conviction was not in accord with our decision in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965).
Appellant was convicted by a jury of assaulting a police officer with a dangerous weapon.
In support of the claim of unconsciousness trial counsel hoped to call appellant to the stand for his account of the events. Aware, however, that this could open the way for introduction in evidence of a prior conviction of assault with a dangerous weapon,
In Luck we noted the problems involved in admitting prior convictions for impeachment purposes. 121 U.S.App. D.C. at 156-157, 348 F.2d at 768-769. Without doubt, reciting a defendant's prior criminal record to the jury can be highly prejudicial, especially where, as here, the prior offense is a crime similar to the one on trial. See Pinkney v. United States, 124 U.S.App.D.C. 209, 363 F.2d 696 (1966). Thus the impeachment rule confronts the defendant with a dilemma. Although his testimony may
It was with this experience in mind that we were led in Luck to hold that, while prior convictions might have some bearing on credibility, the trial court is not bound by 14 D.C.Code § 305 to permit impeachment in every case. Rather we called upon the trial court to exercise discretion, noting that "[t]here may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility." 121 U.S.App.D.C. at 156, 348 F.2d at 768. (Footnote omitted.) We went on to mention some of the considerations that might be relevant in exercising that discretion, such as "the nature of the prior crimes, the length of the criminal record, the age and circumstances of the defendant, and, above all, the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction." 121 U.S. App.D.C. at 157, 348 F.2d at 769. (Footnote omitted.) Finally, we cited as "a highly desirable guide for the trial judge" Rule 303 of the American Law Institute's Model Code of Evidence (1942).
In the case before us the trial judge unfortunately did not base his ruling on these individualized considerations. Instead he spoke of an "abstract" belief that those with prior convictions are likely to commit perjury because they fear the effect the prior conviction will have on their sentence should they be convicted again. As is obvious, should such an abstraction be permitted to prevail Luck would be rendered meaningless; if we accept the view that prior convictions provide such an impetus to commit perjury as to outweigh any prejudicial effect of impeachment, then we will have returned to the automatic impeachment rule Luck sought to change.
Moreover, the idea that a prior conviction provides a motive for perjury misconstrues the theory of impeachment. The reason for exposing the defendant's prior record is to attack his character, to call into question his reliability for truth-telling by showing his prior, relevant antisocial conduct. One need not look for prior convictions to find motivation to falsify, for certainly that motive inheres in any case, whether or not the defendant has a prior record. What greater incentive is there than the avoidance of conviction? We can expect jurors to be naturally wary of the defendant's testimony, even though they may be unaware of his past conduct.
This is not to say that a prior conviction has no relevance to credibility. It is to say that the trial judge, in weighing the prejudice that might result from its
Because the trial judge misconstrued his role under Luck, we cannot accept as a proper exercise of his discretion his ruling that appellant's prior conviction would be admissible. Indeed, when the facts established by the record are measured against the principles discussed here and in Luck, the ruling must be held erroneous. This is a classic illustration of a case in which "the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility." Luck v. United States, supra, 121 U.S.App.D.C. at 156, 348 F.2d at 768. Moreover, appellant's conduct at the time of the offense was critical to determining whether he was conscious of his behavior. To have his own account of his actions could well have aided the jury in resolving his claim of unconsciousness. To have foreclosed that account with the threat of impeachment did nothing to further the cause of truth.
While such an argument is always to be condemned as "an appeal wholly irrelevant to any facts or issues in the case," Viereck v. United States, 318 U.S. 236, 247, 63 S.Ct. 561, 566, 87 L.Ed. 734 (1943), and as a dereliction of the prosecutor's high duty to prosecute fairly, see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), in the context of current events, raising the spectre of martial law was an especially flagrant and reprehensible appeal to passion and prejudice. Although the prosecutor "may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633; Viereck v. United States, supra, 318 U.S. at 248, 63 S.Ct. at 567.
Let me see your case that you have there.
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Well, the Court [in Luck] says there may well be cases where the trial judge * * * might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probable relevance of the prior conviction to the issue of credibility.
Well, in this case I definitely do not feel that the prejudicial effect of impeachment far outweighs the probity or relevance of the prior conviction on the issue of credibility but, to the contrary, that the relevance of the prior conviction to the issue of credibility far outweighs any probable or possible prejudicial effect of impeachment as a result thereof. (Emphasis supplied.)
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"(b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury * * *."
Like the Uniform Rules of Evidence, the A.L.I.'s Model Code also addresses itself specifically to the matter of impeaching a criminal defendant by means of prior convictions. It too provides in substance that there may be no impeachment for this purpose unless the accused himself has introduced evidence solely for the purpose of supporting his credibility; and even then the prior convictions must be for crimes involving dishonesty or false statement. See Model Code of Evidence Rule 106 (1942). The drafters of the proposed Federal Rules of Evidence will presumably direct their attention to this same problem.
"Unless we reach that conclusion, ladies and gentlemen of the jury, then this city must have martial law.
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"Now, ladies and gentlemen, when I said in the closing argument, `If you wished to come to that conclusion, you might as well have martial law,' I meant exactly what I said. If this is what the police officers in the District of Columbia, in a given set of circumstances, must contend with, then you, who live here and have to protect yourselves, you might as well have martial law.
"You make the choice. You live with it."