18 U.C. Davis L. Rev. 681 1984-1985
Impeaching Defendants With Their
Prior Convictions: Reconsidering the
Dangerous Propensities of Character
Evidence After People v. Castro
Proposition 8, adopted in 1982, called for the admission of “any”
prior felony conviction “without limitation” as impeachment evidence. In
People v. Castro, the California Supreme Court held that only convictions
involving “moral turpitude” were admissible under the terms of the
Proposition, despite its seemingly unqualified language. Even as to this
class of convictions, admissibility further depended on whether the offer
survived the trial court’s discretionary power to exclude evidence when
its prejudicial potential outweighed its probative value. The decision gave
little guidance as to the meaning of “moral turpitude”; as to how the
trial court was to exercise its discretion; or as to the scope of appellate
review of the trial court’s discretion. This Article identifies four models
for assessing the probative value of such convictions, including the majority’s
“moral turpitude” standard, and criticizes each. It takes the view
that such convictions are all but irrelevant in the special context of a
defendant testifying on her own behalf Ideally, this would argue for the
flat exclusion of such convictions; absent such a rule, however, Evidence
Code section 352 provides a sufficient protective mechanism if trial
courts are encouraged to employ it to guard against abuses in the use of
prior convictions and are reinforced in this effort by adequate appellate
Among Alexis de Tocqueville’s memorable observations was his
proposition that political issues ultimately reach American courts enshrouded
as legal issues.1 He might have added that they often erupt in
* Professor of Law, University of California, Los Angeles. Ph.B 1948, University of
Chicago; LL.B. 1952, Wisconsin; LL.M. 1968, Harvard University.
1 2 A. DE TOCQUEVILLE, DEMOCRACY IN AMERICA 290 (H. Reeve ed. 1954).
— 18 U.C. Davis L. Rev. 681 1984-1985
University of California, Davis
the less obviously political terrain of procedural and evidentiary rules.
A case in point is the current controversy over the admissibility of a
criminal defendant’s prior convictions for impeachment purposes.2
From one perspective, this is a matter of technical, if not abstruse, evidentiary
doctrine located in the complex domain of character evidence
and of concern primarily to legal practitioners. Prior convictions are
one branch of the much debated topic of using character evidence as a
basis for inferring conduct on a particular occasion.’
2 In its most recent form, the issue was triggered by the adoption of Proposition 8, a
California constitutional initiative, on June 8, 1982. That Proposition, among numerous
other things, amended article I of the California Constitution by adding § 28(f),
providing in part: “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.” CAL.
CONST. art. I, § 28(0.
For a general treatment of impeachment by prior conviction, see 3A J. WIGMORE,
EVIDENCE IN TRIALS AT COMMON LAW §§ 980, 980a, 985-987 U. Chadbourn rev.
- 1970) [hereafter J. WIGMORE]. For a review of the debate surrounding impeachment
by prior conviction and its resolution in Rule 609 of the Federal Rules of Evidence,
see 3 J. WEINSTEIN & M. BERGER, WEINSTEIN’S EVIDENCE 1 609-609,
at 609-1 to -45 (1982). An interesting recent consideration of character evidence’s uses
and abuses is found in Uviller, Evidence of Character to Prove Conduct: Illusion,
Illogic and Injustice in the Courtroom, 130 U. PA. L. REV. 845 (1982); see also J.
WEINSTEIN & M. BERGER, supra, at 609-44 to -45 (extensive bibliography); Ladd,
Credibility Tests – Current Trends, 89 U. PA. L. REV. 166 (1940); Mendez,
California’s New Law on Character Evidence: Evidence Code Section 352 and the
Impact of Recent Psychological Studies, 31 UCLA L. REV. 1003, 1003-41 (1984).
‘ The particular use of character evidence of concern in this Article is to assist in
evaluating the truthfulness of a witness’s testimony at trial. CAL. EVID. CODE §§ 780,
785-788 (West 1966). Character evidence can also be used to draw inferences about a
person’s primary conduct – whether the defendant committed the charged criminal
act. The fact, for example, that a person had committed several robberies might be
considered useful evidence to show that she possessed a general disposition toward lawlessness,
violence, or dishonesty. This disposition, in turn, might indicate that she committed
a similar crime on the charged occasion. This use of character evidence to prove
conforming conduct is, however, generally barred by California law. CAL. EVID. CODE
- 1101(a) (West 1966); see also People v. Spearman, 25 Cal. 3d 107, 116, 599 P.2d 74,
78, 157 Cal. Rptr. 883, 887 (1979); People v. Antick, 15 Cal. 3d 79, 96-97, 538 P.2d
43, 54-55, 123 Cal. Rptr. 475, 486-87 (1975); People v. Beagle, 6 Cal. 3d 441, 453,
492 P.2d 1, 8, 99 Cal. Rptr. 313, 320 (1972). This general doctrine is subject to the
exceptions set forth in CAL. EVID. CODE §§ 1102, 1103 (West 1966 & Supp. 1985).
Although I have distinguished between two potential uses of character evidence, they
are, analytically, two aspects of a single technique: the offer of character evidence as
circumstantial proof of conforming behavior on a given occasion. In one use, the evidence
is thought to elucidate a defendant’s primary behavior; in the other, it is offered
to elucidate the defendant’s behavior in court as a witness on her own behalf, i.e., to
help resolve the veracity of her testimony. Though the two uses are analytically the
— 18 U.C. Davis L. Rev. 682 1984-1985
Of course, this issue is not merely one of concern to practitioners;
many people do take their character evidence seriously. The subject has
excited continuing, indeed irrepressible, interest in the courts, among
scholars,’ and in the overtly political arena. The admissibility of prior
convictions for impeachment purposes was “extremely controversial” 5
and the most fully considered issue as the Federal Rules of Evidence
worked their way through Congress. In 1982, the subject erupted as a
question for direct voter resolution in the politically charged context of
a California constitutional initiative on Proposition 8, the so-called
“Victims’ Bill of Rights.”6 The initiative was aimed at changing major
portions of the criminal process, including some of the rules limiting
the use of prior felony convictions that had developed in California case
law.7 With virtually no information about those limits provided to the
voters,’ they were asked, among other things, to decide whether prior
same, practical and historical reasons have combined to produce separate rules, doctrines,
and analyses to cover each.
Still unresolved is the extent to which the enactment of another provision of Proposition
8, CAL. CONST. art. I, § 28(d) (the “truth in evidence” provision), effectively abolishes
present statutory rules excluding character evidence, such as CAL. EvID. CODE §§
787, 1101(a) (West 1966). Article I, § 28(d) suggests this abolition by providing that
relevant evidence may not be excluded from a criminal trial. However, § 28(d) explicitly
preserves CAL. EviD. CODE § 352 (West 1966). Under § 352, courts are empowered
to exclude evidence on a case-by-case basis when the prejudicial tendency of the
evidence is adjudged to outweigh its probative value. But the very reasons underlying
the categorical, statutory exclusion of such evidence in the first place, under provisions
such as CAL. EvID. CODE §§ 787, 1101(a) (West 1966), are largely those that are
recognized as compelling grounds for exclusion on an ad hoc basis under § 352. A
likely scenario, then, is that in the course of successive applications of § 352, rules will
emerge that will more or less restore the exclusionary rules now crystallized in such
provisions as CAL. EvID. CODE §§ 787, 1101(a) (West 1966).
4 See, e.g., supra note 2.
‘ J. WEINSTEIN & M. BERGER, supra note 2, 1 609, at 609-4; id. at 609-70.
During congressional consideration of the issue, Representative Hogan spoke of a “raging
debate” on the subject. Id. at 609-13 (quoting Representative Hogan). Indeed, the
intensity of the dispute is suggested by the fact that several senators, dissatisfied with
some of the Supreme Court’s proposed provisions for dealing with prior convictions, in
response sought to modify the Court’s rulemaking power. Id. I 609, at 609-50 to
6 See supra note 2. Proposition 8 also involved restitution to victims, safe schools,
criminal evidence, bail, and a variety of changes in the Penal and Welfare and Institutions
‘ People v. Castro, 38 Cal. 3d 301, 308-13, 696 P.2d 111, 115-18, 211 Cal. Rptr.
719, 723-26 (1985).
‘ See id. at 310-12, 696 P.2d at 115-18, 211 Cal. Rptr. at 723-26. The Legislative
Analyst’s discussion of this provision, distributed to all voters in the CALIFORNIA BAL-
— 18 U.C. Davis L. Rev. 683 1984-1985
University of California, Davis
felony convictions should be admissible “without limitation. ‘
The issue was political in the most conventional sense: it surfaced in
a political context and was accompanied by strident law and order rhetoric.”°
The explicit aim of those favoring liberalized admissibility was
to “toughen” a system of criminal administration viewed as “soft” on
criminals and indifferent to the plight of victims. 1
The issue can also be seen, however, as political in another, more
subtle sense. The beliefs that people hold about the importance of character
in understanding criminal conduct are often related to a systematic
way of thinking about crime and personal responsibility. A strong
affinity for character as a behavioral explanation dovetails neatly with
a law and order orientation, emphasizing the wrongdoer’s free will, her
personal moral default, and the justness of her punishment.’2 Explanations
for crime as rooted in structural, social, and economic conditions
– discrimination, joblessness, lack of education, poverty, destructive
family situations, or drug culture – are rejected in favor of a perspective
focusing on a socially contextless individual suffering from a moral
LOT PAMPHLET, PRIMARY ELECTION, June 8, 1982 [hereafter CALIFORNIA BALLOT
PAMPHLET], was limited to the following paragraph: “Prior Convictions. The measure
would amend the State Constitution to require that information about prior felony convictions
be used without limitation to discredit the testimony of a witness, including that
of a defendant. Under current law, such information may be used only under limited
circumstances.” Id. at 54. The issue was not explored further in either the arguments
for or against Proposition 8. Id. at 34-35. A major obstacle to detailed public understanding
was the technical complexity of many of the issues and their sweeping range.
See supra note 6. That raised the issue of whether Proposition 8 violated the singlesubject
rule of CAL. CONST. art. II, § 8(d). A challenge to Proposition 8 along these
lines was tendered to, and rejected by, the California Supreme Court in Brosnahan v.
Brown, 32 Cal. 3d 236, 651 P.2d 274, 186 Cal. Rptr. 30 (1982). See Lowenstein,
California Initiatives and the Single-Subject Rule, 30 UCLA L. REV. 936 (1983).
See supra note 2 for the relevant portion of CAL. CONST. art. I, § 28(f.
See, e.g., CALIFORNIA BALLOT PAMPHLET, supra note 8, at 34 (arguments advanced
by Lieutenant Governor Mike Curb and then Attorney General George
Deukmejian in support of Proposition 8).
” See CAL. CONST. art. I, § 28(a) (preamble) (enacted as part of Proposition 8); see
also People v. Castro, 38 Cal. 3d 301, 311, 696 P.2d 111, 116, 211 Cal. Rptr. 719, 724
12 An illustration of this point is found in the testimony of Dr. Thomas Szasz, who,
testifying as a psychiatrist in opposition to a murder defendant’s insanity defense, said
that the defendant was not psychotic but instead was a “bad person” who had “lived a
life badly, stupidly and evilly from the time of her teens.” L.A. Times, Jan. 26, 1981,
Pt. I, at 18, col. 3. The tenor of this testimony reflects his general philosophic view,
which stresses an individual’s moral responsibility for behavioral choices and rejects
attempts to transform what he sees as ethical choices into false “scientific” issues of
health or illness. See T. SZASZ, LAW, LIBERTY, AND PSYCHIATRY (1963).
— 18 U.C. Davis L. Rev. 684 1984-1985
deficit.’ 3 Thus, the appeal of character evidence lies not only in its
value as probative evidence in determining behavior, but also in its validation
of the same concept of personal responsibility that underlies the
“wicked person” approach to criminal responsibility.
This is not to say that one must necessarily hold a law and order
perspective to value character evidence; one may see character as a
powerful explanatory device without rejecting liberal or even radical
social explanations for crime.” Indeed, one may believe that character
explains much errant behavior even if that character is socially or externally
determined. Thus, Marx believed that one way in which social
oppression victimized the oppressed was precisely through the mechanism
of personality malformation.’ 5 As a matter of contemporary social
fact, however, it is hard to deny a connection between an affinity for
character explanations of human behavior and law and order ways of
thinking about crime, criminals, society, and punishment. To recognize
this does not answer the question of the appropriate uses of prior convictions
or of character evidence in particular cases. Understanding this
appeal of the use of prior convictions does, however, suggest a context
for Proposition 8 and a perspective for understanding the arguments for
” This view likewise does not take kindly toward efforts to avoid personal responsibility
by attributing antisocial conduct to mental illness. See T. SZASZ, supra note 12.
Not surprisingly, Proposition 8 also abolished the diminished capacity defense, by adding
- 25(a) to the California Penal Code; sharply restricted the insanity defense’s
scope, by adding § 25(b) to the Penal Code; and rendered inadmissible evidence “concerning
an accused person’s intoxication, trauma, mental illness, disease or defect” to
disprove the requisite mens rea of a criminal offense, by adding § 25(a) to the Penal
, As, for example, in the following statement:
Is it not a delusion to substitute for the individual with his real motives,
with multifarious social circumstances pressing upon him, the abstraction
of “free will” – one among the many qualities of man for man himself?
- . . Is there not a necessity for deeply reflecting upon an alteration of the
system that breeds these crimes, instead of glorifying the hangman who
executes a lot of criminals to make room only for the supply of new ones?
Marx, Capital Punishment, N.Y. Daily Tribune, Feb. 18, 1853, quoted in Murphy,
Marxism and Retribution, 2 PHILOSOPHY & PUB. AFFAIRS 217 (1973), reprinted in
- WASSERSTROM, TODAY’S MORAL PROBLEMS 491 (1979). See generally Murphy,
” Marx and Engels spoke of a degraded proletariat as “the ‘dangerous class,’ the
social scum, that passively rotting mass thrown off by the lowest layers of old society.”
- MARX & F. ENGELS, THE COMMUNIST MANIFESTO 92 (S. Moore trans. 1967).
Thus, they conceived of a dehumanized mass, broken and brutalized by capitalism,
which internalized the worst “character” traits fostered by that system, precisely as
social product. Id.
— 18 U.C. Davis L. Rev. 685 1984-1985
University of California, Davis
admission of such evidence apart fr6rn technical doctrine.
In People v. Castro,” the court confronted the task of divining the
meaning of article I, section 28(f), 7 added to the California Constitution
with the adoption of Proposition 8. Section 28(f) purported to
make admissible “any” prior felony conviction “without limitation” for
impeachment purposes. The defendant had been tried for receiving stolen
property. After she testified in her own defense, the prosecution
introduced two prior convictions for impeachment purposes, one for
possession of heroin and the other for possession of heroin for sale. For
reasons to be examined later, these convictions would have been inadmissible
under the pre-Proposition 8 case law. 8 The issue in Castro
was whether the “without limitation” language of article I, section
28(f) abolished all judicial discretion to exclude such evidence. The
court rejected such an exuberantly literal reading of section 28(f).’ 9 It
reasoned, first, that not every prior felony conviction was relevant to
‘ As to convictions that were not, section 28(f) did not mandate
admission, despite its apparently unconditional language.2 Indeed,
had section 28(f) so intended, it would have violated federal due process
protections. 2 2 What convictions, then, were relevant? The court rea-
” 38 Cal. 3d 301, 696 P.2d 111, 211 Cal. Rptr. 719 (1985).
” See supra note 2.
” See infra notes 72-78 and accompanying text.
, Justice Kaus wrote a plurality opinion speaking for three of the justices; the remaining
four members of the court divided between three opinions, each concurring
and dissenting. As I read it, a majority of the justices ended up supporting the major
propositions in the plurality opinion. For convenience, therefore, I treat Kaus’s opinion
as though it speaks for the court. I recognize full well that this plethora of opinions
provides fertile soil for dispute as to proper nose-counting on one or another issue.
20 38 Cal. 3d at 313-14, 696 P.2d at 117-18, 211 Cal. Rptr. at 725-26; id. at 327-
30, 696 P.2d at 128-30, 211 Cal. Rptr. at 736-38 (Bird, C.J., concurring and
21 Id. at 313-14, 696 P.2d at 117-19, 211 Cal. Rptr. at 725-27; id. at 322, 696 P.2d
at 124, 211 Cal. Rptr. at 732 (Grodin, J., concurring and dissenting); id. at 330-32,
696 P.2d at 130-32, 211 Cal. Rptr. at 738-40 (Bird, C.J., concurring and dissenting).
22 Id. at 313-14, 696 P.2d at 117-19, 211 Cal. Rptr. at 725-27; id. at 322, 696 P.2d
at 124, 211 Cal. Rptr. at 732 (Grodin, J., concurring and dissenting); id. at 330-32,
696 P.2d at 130-32, 211 Cal. Rptr. at 738-40 (Bird, C.J., concurring and dissenting).
As to the constitutional issue, see Comment, Impeaching the Accused with Prior Convictions:
Does Proposition 8 Put Beagle in the Dog House?, 15 PAc. L.J. 301, 314-19
(1984) [hereafter Comment, Impeaching the Accused]; Note, Constitutional Problems
Inherent in the Admissibility of Prior Record Conviction Evidence for the Purpose of
Impeaching the Credibility of the Defendant Witness, 37 U. CIN. L. REV. 168 (1968).
But cf. People v. Beagle, 6 Cal. 3d 441, 454, 492 P.2d 1, 9, 99 Cal. Rptr. 313, 321
(1972) (specifically rejecting the constitutional route for barring admissibility). Spencer
— 18 U.C. Davis L. Rev. 686 1984-1985
soned that they consisted of those “necessarily involv[ing] moral turpitude,”
23 or put another way, those reflecting a “general readiness to do
evil.”2 Moreover, the moral turpitude determination was to be made
by consulting the indispensable elements of the crime in general, rather
than the specific and adventitious facts underlying the conviction.2″
Even as to convictions involving moral turpitude, the determination
of relevancy was merely the starting point for analysis. For such evidence,
as was true for evidence “across the board,”26 had to pass muster
under Evidence Code section 352.27 “[Ils there hard evidence that …
[the voters] intended . . to abrogate entirely the discretion of the trial
court under section 352, a traditional, inherent and, in truth, indispensable
tool of the law of evidence? ’28 There was not, the plurality opinion
responded. The voters had expressed “continued trust in the discretion
of the trial courts’ 29 despite the mandatory tone of section 28(f).
- Texas, 385 U.S. 554 (1967), frequently cited in constitutional discussions, is of
equivocal effect. See Comment, Impeaching the Accused, supra, at 314-19. Cases upholding
a constitutional challenge to admissibility are in short supply. See Hawaii v.
Santiago, 53 Hawaii 254, 492 P.2d 657 (1971).
2 38- Cal. 3d at 306, 696 P.2d at 113, 211 Cal. Rptr. at 721. Justice Grodin concurred
in this conclusion. Id. at 322, 696 P.2d 2d at 124, 211 Cal. Rptr. at 732
(Grodin, J., concurring and dissenting).
24 Id. at 314, 696 P.2d at 119, 211 Cal. Rptr. at 727.
25 Id. at 316-17, 696 P.2d at 120, 211 Cal. Rptr. at 728. None of the other opinions
specifically address this point, but Chief Justice Bird had previously committed herself
to this view as the author of People v. Spearman, 25 Cal. 3d 107, 599 P.2d 74, 157
Cal. Rptr. 883 (1979). See infra note 74 and accompanying text.
26 38 Cal. 3d at 306, 696 P.2d at 113, 211 Cal. Rptr. at 721.
2 CAL. EVID. CODE § 352 (West 1966) (court has discretion to exclude evidence “if
its probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issue, or of misleading the jury”). Historically, “section 352
was intended to apply across the board, excluding no relevant and otherwise admissible
evidence from judicial weighing of prejudice against probative value.” Castro, 38 Cal.
3d at 306-07, 696 P.2d at 113, 211 Cal. Rptr. at 721. The court emphasized and
reemphasized this discretionary power: admissibility is “always subject to the trial
court’s discretion under section 352,” id. at 306, 696 P.2d at 113, 211 Cal. Rptr. at
721; if a conviction involves moral turpitude, “it is prima facie admissible, subject to the
exercise of trial court discretion,” id. at 316, 696 P.2d at 120, 211 Cal. Rptr. at 728;
and “[wie reemphasize that . . .admissibility is subject to trial court discretion under
section 352,” id. at 317, 696 P.2d at 120, 211 Cal. Rptr. at 728.
” 38 Cal. 3d at 309, 696 P.2d at 115, 211 Cal. Rptr. at 723.
29 Id. at 312, 696 P.2d at 117, 211 Cal. Rptr. at 725. In part, its decision that § 352
still conditioned the admissibility of prior convictions rested on its reconciliation of two
subdivisions of § 28. Subdivision (d) provides that “relevant evidence shall not be excluded
in any criminal proceeding” but that “[n]othing in this section shall affect . ..
— 18 U.C. Davis L. Rev. 687 1984-1985
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Finally, the court rejected the pre-Proposition 8 “Antick line”30 of
cases, implying that these cases had introduced excessively rigid appellate
control over the trial courts’ exercise of discretion; or even if in fact
the Antick line had not suffered from this defect, so the matter had
been perceived by the drafters of article I, section 28(f).” In adopting
that provision, the voters, then, had asserted their power to reject the
Applying its analysis to the case before it, the court concluded that
the defendant had been improperly impeached with a conviction for
simple possession of heroin; such offense did not exhibit moral turpitude.
Possession for sale, however, was an admissible conviction, because
it did. Reversal was not warranted, however, since the error had
not been prejudicial. 3
Castro expanded to an unknown degree the potential admissibility of
prior convictions. It also introduced marked uncertainty into the process.
It offered little guidance as to the scope of the offenses within the
moral turpitude standard; as to the relevance of such convictions in the
special context of the impeachment of a witness-defendant; or as to the
correct, “nonrigid” way for appellate courts to supervise the admissibility
process. The aftermath of Castro, therefore, provides a good occasion
for rethinking the genuine relevance of prior conviction evidence,
especially in the context of its use against a witness-defendant. Such
analysis is indispensable to the intelligent exercise of the discretion
mandated alike by sound evidentiary policy, by Evidence Code section
352, by Castro itself, and perhaps by the due process clause as well.
Part I of this Article outlines the doctrines concerning the use of
prior convictions both before and after Proposition 8. Part II analyzes
the relevance of prior convictions for impeachment purposes and concludes
that such evidence has remarkably little evidentiary value in the
special context of the witness-defendant. Part II also considers, and
criticizes, four theoretical models as to the relevance of prior conviction
evidence, including several that have played a prominent role in the
evolution of the California doctrine. It concludes that ideally the whole-
Evidence Code, Sections 352, 782 or 1103.” (emphasis added). The court held that
subdivision (f) remains subject to § 352, by virtue of the just quoted language of (d),
despite the apparently uncompromising language of admissibility found in subdivision
(f). Id. at 309-12, 696 P.2d at 115-17, 211 Cal. Rptr. at 723-25.
30 Id. at 308, 696 P.2d at 115, 211 Cal. Rptr. at 723. For Castro’s review of those
cases, see id. at 307-08, 696 P.2d at 114, 211 Cal. Rptr. at 722.
11 Id. at 308, 312, 696 P.2d at 114, 117, 211 Cal. Rptr. at 722, 725.
11 Id. at 318-19, 696 P.2d at 121-22, 211 Cal. Rptr. at 729-30.
— 18 U.C. Davis L. Rev. 688 1984-1985
sale exclusion of such convictions when used against witness-defendants
would be preferable to any of the four models.” Absent such a rule of
flat exclusion, however, it argues for the alert use of Evidence Code
section 352 to guard against the potential abuses of prior conviction
evidence offered for impeachment purposes.
- CHARACTER EVIDENCE IN CRIMINAL TRIALS: IMPEACHMENT
THROUGH PRIOR CONVICTIONS
- The Utility of Prior Convictions
The backdrop of the issue is quite familiar. The factfinder is often
presented with squarely conflicting testimony on crucial issues of fact.
To decide the case, the factfinder, whether judge or jury, must decide
whom to believe. Because the believability, or credibility, of a witness is
itself an issue of fact, litigants may resort to various forms of evidence
to attack an opposing witness’s credibility.” One entrenched form is
evidence of a witness’s character for truthfulness. 6 The common sense
underpinning of such evidence can be stated as follows: We conduct our
lives on the belief that people have identifiable character traits and that
knowing these traits will help us determine how a person will behave
on specific occasions. If evidence of one’s character is helpful in assessing
conduct in the world at large, why not in the courtroom as well?
And why not in respect to the particular activity of testifying as a witness
on the stand? Thus, if a person possesses a lax general commitment
to tell the truth, that fact is relevant to assessing the person’s
credibility as a witness.
Accepting this premise, as does California law,37 the issue arises as to
the degree of hospitality such evidence ought to be accorded. In many
respects, the adoption of article I, section 28(f) did not affect the answer
to this question. Proof of character can still be made through witnesses
I would recognize an exception when the defendant opens the door by falsely
testifying to the absence of a prior criminal record or of prior criminality. I exclude
from this discussion the subject of impeachment of nonparty witnesses because many of
the considerations in that context are different. For a pre-Proposition 8 case considering
that issue, see People v. Woodard, 23 Cal. 3d 329, 590 P.2d 391, 152 Cal. Rptr. 536
” CAL. EvID. CODE §§ 780, 785-788 (West 1966).
36 CAL. EVID. CODE § 780(e) (West 1966) identifies evidence of a witness’s “character
for honesty or veracity or their opposites” as relevant to credibility and to be admitted
“[e]xcept as otherwise provided by statute.”
Id.; see also People v. Castro, 38 Cal. 3d 301, 314, 696 P.2d 111, 119, 211 Cal.
Rptr. 719, 727 (1985) (quoting Justice Holmes in support of this approach).
— 18 U.C. Davis L. Rev. 689 1984-1985
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prepared to render their opinion of the defendant’s character for veracity,
or by witnesses prepared to testify to the defendant’s reputation in
that regard. 8 The issue of concern here arises in the context of the
seemingly narrow question of whether the witness’s character may also
be proved by evidence of specific prior misdeeds reflecting on her disposition
toward truthfulness. The general answer, both before and after
the adoption of Proposition 8, has been to reject this form of proof. 9
However, to this general rule of preclusion, an exception was historically
annexed in favor of prior convictions. “° Thus, evidence of specific
acts to demonstrate the defendant’s mendacity was permitted under a
limited circumstance and in a special manner. The specific conduct
must have resulted in a felony conviction, “1 and the impeaching proof
was restricted to evidence of the conviction itself, rather than the detailed
facts of the prior crime.”2 For our purposes, however, the crucial
fact is that not all convictions were admissible.
The following sections consider the contrasting approaches developed
before and since the adoption of Proposition 8 toward the breadth of
admissibility of prior convictions. Before proceeding to that subject,
however, it is worth noting the striking practical importance of how
broadly the scope of admissibility is defined. This is partly true for the
well-recognized reason that evidence about the defendant’s prior conviction
may trigger jury prejudice. 3 More significantly, this adverse news
” CAL. EVID. CODE § 1100 (West 1966) makes all forms of character evidence –
whether opinion, reputation, or specific act evidence – admissible to prove a relevant
character trait unless otherwise excluded by statute. Neither opinion nor reputation
evidence concerning credibility is generally excluded by statute. Therefore, such evidence
is admissible in principle, though subject to discretionary exclusion under id.
- 352. See generally 3A J. WIGMORE, supra note 2, § 920.
” CAL. EVID. CODE § 787 (West 1966). See generally 3A J. WIGMORE, supra note
2, § 979. As to whether this result is changed by article I, § 28(d) of the California
Constitution, adopted with the passage of Proposition 8, see supra note 3.
40 CAL. EVID. CODE § 788 (West 1966) (originally codified at CAL. EVID. CODE
- 2051 (West 1955)).
42 People v. Spearman, 25 Cal. 3d 107, 116, 599 P.2d 74, 78, 157 Cal. Rptr. 883,
887 (1979) (deriving conclusion from CAL. EVID. CODE § 787 (West 1966)). This view
prevails also under Castro. See supra note 25 and accompanying text. See generally
MCCORMICK ON EVIDENCE § 43, at 98-99 (E. Cleary 3d ed. 1984) [hereafter
MCCORMICK ON EVIDENCE]; 3A J. WIGMORE, supra note 2, § 979.
4′ MCCORMICK ON EVIDENCE, supra note 42, § 43, at 99. The jury, though instructed
in the limited use of evidence, may be unwilling or unable to conform its
conduct to the instruction. Similar limitations, in other contexts, have been regarded as
“unmitigated fiction.” Krulewitch v. United States, 336 U.S. 440, 453 (1949); see also
People v. Fries, 24 Cal. 3d 222, 227-28, 594 P.2d 19, 23, 155 Cal. Rptr. 194, 198
— 18 U.C. Davis L. Rev. 690 1984-1985
about the defendant comes packaged in awesome form. The prior conviction
is not mere “opinion” or “reputation” testimony concerning the
defendant, dependent for its persuasive force on the vagaries of how an
opinion or reputation witness is perceived by the factfinder. Prior felony
convictions represent the judicial system’s official certification that
the defendant was guilty beyond a reasonable doubt of serious criminal
behavior. While the jury must still weigh the bearing of the evidence on
witness credibility, its factual validity is not easily controverted. In
short, prior convictions are surrounded by an air of authority that does
not normally accompany other forms of character evidence.”
The significance of prior convictions is not exhausted by their
weighty aura. They also possess a high degree of practical availability.
First, a substantial number of defendants have previously suffered one
or more convictions. 5 Thus, a fund of available impeaching evidence
exists. Furthermore, this evidence is readily available – generally no
(1979); People v. Antick, 15 Cal. 3d 79, 98-99, 539 P.2d 43, 55-56, 123 Cal. Rptr.
475, 487-88 (1975); State v. Santiago, 53 Hawaii 254, 258, 492 P.2d 657, 660 (1971).
In one survey, 98% of the criminal defense attorneys and 43% of the trial judges believed
jurors incapable of drawing the distinction called for in this type of instruction.
Note, To Take the Stand or Not to Take the Stand: The Dilemma of the Defendant
with a Criminal Record, 4 COLUM. J.L. & Soc. PROBS. 215, 218 (1968).
” Ironically, this fact is a principal justification for recognizing an exception in favor
of admitting prior convictions. Restricting proof of specific conduct to prior convictions
is said to benefit the defendant by sparing her the hazard of having to defend against
unanticipated and speculative collateral charges of misconduct that might be sprung at
trial. See People v. Castro, 38 Cal. 3d 301, 316-17, 696 P.2d 111, 120, 211 Cal. Rptr.
719, 728 (1985); MCCORMICK ON EvIDENCE, supra note 42, § 42.
41 The figures are not readily available. BUREAU OF CRIMINAL STATISTICS AND
SPECIAL SERVICE, CALIFORNIA DEPARTMENT OF JUSTICE, DIVISION OF LAW ENFORCEMENT,
CRIME AND DELINQUENCY IN CALIFORNIA 52 (1980) reports that of the
37,876 adult felons convicted in 1980, 14.9% had prior prison records which, by definition,
means they had suffered prior “felony” convictions, CAL. PENAL CODE § 17
(West 1970); 21.8% had no prior criminal records; and 63.2% had a “miscellaneous
prior record.” To an extent not indicated, this last category includes some, perhaps
many, with prior felony convictions – for example, those cases in which felony sentence
had been imposed and then suspended, or in which the defendant had been convicted
of a felony but with the imposition of sentence suspended. Of those defendants
convicted of felonies during 1980, then, the number who had had prior felony convictions
may have substantially exceeded 14.9%. Furthermore, these figures do not reveal
the prior convictions of defendants who pleaded not guilty and were subsequently acquitted.
For the years after 1980, the annual volumes of Crime and Delinquency in
California do not include analogous statistics. H. KALVEN, JR. & H. ZEISEL, THE
AMERICAN JURY 145 (1966) report that 47% of defendants in all criminal cases have
prior criminal records (22% for similar crimes, 25% for different crimes). However,
their data does not distinguish between prior felony and prior misdemeanor convictions.
— 18 U.C. Davis L. Rev. 691 1984-1985
University of California, Davis
further from the prosecution’s elbow than the nearest computer terminal
linked to the state’s repository of conviction data. In contrast, the
production of opinion or reputation testimony requires considerable labor.
The would-be impeacher must identify the potential witnesses, locate
them, evaluate them, induce them to testify, ensure their presence
at trial, and then hope they survive cross-examination. In short, opinion
and reputation evidence lacks both the automatic credibility and routine
availability generally associated with prior convictions. Indeed, in the
routine assembly-line criminal case “character evidence concerning
credibility” has probably come to mean no more, no less, than prior
- Admissibility of Prior Convictions: Pre-Proposition 8 Doctrines
- People v. Beagle Limitations on Admissibility of Prior Convictions
Commencing with the 1965 adoption of the California Evidence
Code, California case law concerning prior convictions has evolved in a
series of stages. Until 1972, Evidence Code section 788 was widely understood
to authorize the admission of all felony convictions. Any felony
conviction would do, regardless of the crime, and courts had no discretionary
power of exclusion.”‘ A major change occurred in 1972 with the
California Supreme Court’s decision in People v. Beagle.47 The court
unanimously held that the admissibility of prior convictions was not
automatic; the evidence had to survive the balancing called for by Evidence
Code section 352.4″ Although Beagle declined to fashion hard and
fast rules concerning the exercise of this discretion, it delineated four
factors entitled to weight: 1) whether the conviction was for a crime
relating to credibility; 2) whether the conviction was too remote in time;
3) whether, in the case of a defendant-witness, the conviction was for
the same crime as the one for which the defendant stood charged; and
4) whether the admission of the conviction would unfairly discourage
the defendant from taking the stand to testify.49 The first two factors
46 See People v. Beagle, 6 Cal. 3d 441, 451-52, 492 P.2d 1, 7, 99 Cal. Rptr. 313, 319
(1972), and the cases cited therein, disapproved by Beagle.
4′ 6 Cal. 3d 441, 492 P.2d 1, 99 Cal. Rptr. 313 (1972).
41 Id. at 452-53, 492. P.2d at 8, 99 Cal. Rptr. at 320; see also People v. Castro, 38
Cal. 3d 301, 307, 696 P.2d 111, 113, 211 Cal. Rptr. 719, 721 (1985).
4′ 6 Cal. 3d at 453, 492 P.2d at 8, 99 Cal. Rptr. at 320. In identifying these factors,
the court adopted then Circuit Judge Burger’s approach delineated in Gordon v.
United States, 383 F.2d 936, 940-41 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029
(1968); see also J. WEINSTEIN & M. BERGER, supra note 2, 609, at 609-68 to
— 18 U.C. Davis L. Rev. 692 1984-1985
identified questions about the relevance of the evidence. The last two
reflected a recognition of its prejudicial potential.
Disagreements over the proper application of Beagle spawned much
litigation in the following decade, often before lower courts that were
unsympathetic to restrictions on the use of such evidence.” The
California Supreme Court ultimately reaffirmed and refined the Beagle
criteria in its pre-Proposition 8 Antick line of cases, exemplified by
People v. Spearman.’ That case provides a useful foil for the evaluation
of People v. Castro,52 because, presumably, it illustrates the “rigidified”
review of trial court discretion that became such an important
part of the Castro critique.
- People v. Spearman: Evolution of the Beagle Doctrine
In People v. Spearman,” the defendant was charged with several
drug offenses, including possession of heroin for sale. Apparently he
was no stranger to drug trafficking, having been convicted of possession
for sale some two years earlier.’ Bringing the prior conviction to the
jury’s attention would, of course, be an unwelcome development from
the defendant’s viewpoint. The law at that time afforded the defendant
both good and bad news. The defendant’s character was inadmissible to
prove his criminal propensity: his prior conviction could be offered
neither to show a general criminal tendency nor a particular tendency
to commit drug offenses. 5 However, the conviction was admissible as
credibility evidence if it met the criteria set forth in Beagle. If admitted,
-69 (discussing Gordon and its forerunner, Luck v. United States, 348 F.2d 763 (D.C.
11 In People v. Rollo, 20 Cal. 3d 109, 569 P.2d 771, 141 Cal. Rptr. 177 (1977), the
court reversed the defendant’s conviction, expressing exasperation at the treatment the
lower courts had accorded its earlier decisions:
Twice in the past two years we have reviewed the origin and purpose of
. . .[the rule limiting the use of prior convictions for impeachment purposes],
provided elaborate guidance in its application, and reaffirmed its
mandate by reversing judgments of. conviction . . . . Surely we do not
need to repeat that discussion so soon.
Id. at 116, 569 P.2d at 774, 141 Cal. Rptr. at 180; see also People v. Rist, 16 Cal. 3d
211, 220 n.9, 545 P.2d 833, 839 n.9, 127 Cal. Rptr. 457, 463 n.9 (1976); People v.
Fisher, 153 Cal. App. 3d 826, 840, 200 Cal. Rptr. 683, 693 (1984) (Dalsimer, J.,
” 25 Cal. 3d 107, 599 P.2d 74, 157 Cal. Rptr. 883 (1979).
” 38 Cal. 3d 301, 696 P.2d 111, 211 Cal. Rptr. 719 (1985).
” 25 Cal. 3d 107, 599 P.2d 74, 157 Cal. Rptr. 883 (1979).
14 Id. at 111, 599 P.2d at 75, 157 Cal. Rptr. at 884.
“5 See supra note 3.
— 18 U.C. Davis L. Rev. 693 1984-1985
University of California, Davis
the jury would, in effect, receive the following instruction: You are not
permitted to reason from the prior conviction that the defendant is disposed
to commit crime. You are permitted to reason that, because he
has misbehaved previously, he is less entitled to belief when he denies
that he committed the crime with which he is now charged. 6
The defendant, perhaps lacking confidence in such a prophylactic instruction,
moved for an order in limine barring the evidence on Beagle
grounds. The trial judge denied the motion. The defendant “chose” 57
not to testify and was convicted. The supreme court reversed, upholding
his contention that the prior conviction should have been barred. The
court identified three considerations justifying its decision: (a) the
prejudice resulting from identity of the prior conviction with the current
charge; (b) the inhibiting effect of admitting the prior conviction
on the defendant’s desire to testify; and (c) the irrelevancy of the prior
conviction to credibility.
- Identity of the Prior Conviction with the Current Charge
The prior conviction offered at Spearman’s trial was identical to one
of the charged offenses – possession of heroin for sale. Under Beagle,
this similarity weighed against admissibility because of the danger that
the jury would use the conviction for the forbidden purpose of propensity
evidence. 8 By the time of Spearman, the fact of identity had become
more than a factor weighing against admissibility. Identical prior
convictions were not merely to be used “sparingly,”59 they were never
to be used; and the failure to abide by this restriction was itself sufficient
ground for reversal.6″
56 The actual instruction called for by CALJIC No. 2.23 reads:
The fact that a witness had been convicted of a felony, if such be a fact,
may be considered by you only for the purpose of determining the credibility
of that witness. The fact of such a conviction does not necessarily
destroy or impair the witness’ credibility. It is one of the circumstances
that you may take into consideration in weighing the testimony of such a
COMMITTEE ON STANDARD JURY INSTRUCTIONS, CALIFORNIA JURY INSTRUCTIONS,
CRIMINAL (4th ed. 1979). As to the doubts about the jury’s ability to fathom such an
instruction, see supra note 43.
” 25 Cal. 3d at 112, 599 P.2d at 76, 157 Cal. Rptr. at 885.
” 6 Cal. 3d at 453, 492 P.2d at 8, 99 Cal. Rptr. at 320.
” People v. Rist, 16 Cal. 3d 211, 220, 545 P.2d 833, 839, 127 Cal. Rptr. 457, 463
60 Spearman, 25 Cal. 3d 107, 116, 599 P.2d 74, 79, 157 Cal. Rptr. 883, 888 (1979).
Justice Richardson, dissenting, quite reasonably attributed to the majority the adoption
of a rule “that a defendant’s credibility may no longer be impeached by admission of a
— 18 U.C. Davis L. Rev. 694 1984-1985
Identity of the charged offense and the impeaching conviction is quite
common. For example, larcenous crime is a frequent occurrence, and
particularly so among certain segments of the population.” Therefore,
this ground of exclusion alone significantly imperiled impeachment by
prior conviction, particularly since exclusion did not depend on an absolute
identity between the two crimes.62
- Effect of the Prior Conviction in Discouraging the Defendant
The threatened use of the prior conviction had caused Spearman to
decline to testify. While the evidence of guilt appeared strong, it was
not “irrebuttable.”63 Had the defendant testified, “unquestionably” the
defendant “might”6 have presented exculpatory evidence. The trial
court’s refusal to bar the prior conviction had prevented the defendant
from presenting his version of the events and, under the circumstances,
constituted reversible error.65
prior conviction of an offense identical or similar to the offense charged.” Id. at 119,
599 P.2d at 81, 157 Cal. Rptr. at 890 (dissenting opinion); see also People v. Barrick,
33 Cal. 3d 115, 126, 654 P.2d 1243, 1249, 187 Cal. Rptr. 716, 722 (1982).
6 See infra notes 118-19 and accompanying text.
62 It was sufficient that the crimes were “similar.” See, e.g., People v. Barrick, 33
Cal. 3d 115, 120, 128, 654 P.2d 1243, 1245, 1251, 187 Cal. Rptr. 716, 718, 724 (1982)
(no distinction between “auto theft” and “theft”). A number of cases considered
whether the identical or similar convictions could be “sanitized” by restricting the proof
to the bare fact of the prior conviction, without identifying the nature of the charge.
Since the jury would be denied knowledge of the tenor of the prior crime, prosecuters
argued that jurors would be less likely to draw improper inferences as to the defendant’s
particular criminal disposition. The California Supreme Court condemned this
technique. People v. Rollo, 20 Cal. 3d 109, 569 P.2d 771, 141 Cal. Rptr. 177 (1977).
Reference to a conviction alone, without specifying the underlying crime, would furnish
the jury with a largely meaningless fragment of information, inducing dangerous jury
speculation. Although the defendant had been accorded the “option” to end jury speculation
by revealing the underlying crime, this was an “archetypal Hobson’s choice,” id.
at 120, 569 P.2d at 776, 141 Cal. Rptr. at 182: one of remaining silent and facing
improper jury speculation, or of testifying to the nature of the prior conviction and
incurring the risk that the jury would draw an impermissible inference of guilt.
The court also held that the same-crime problem could not be finessed by withholding
mention of the specific crime and asking the defendant simply whether he had been
convicted of a felony “involving theft.” People v. Barrick, 33 Cal. 3d 115, 654 P.2d
1243, 187 Cal. Rptr. 716 (1982); see also People v. Cole, 31 Cal. 3d 568, 581, 645
P.2d 1182, 1190, 183 Cal. Rptr. 350, 358 (1982); People v. Betts, 110 Cal. App. 3d
225, 167 Cal. Rptr. 768 (1980) (prior conviction involving “trait of honesty”).
63 Spearman, 25 Cal. 3d at 118, 599 P.2d at 80, 157 Cal. Rptr. at 889.
6 Interestingly, the court in People v. Beagle, 6 Cal. 3d 441, 453, 492 P.2d 1, 8, 99
— 18 U.C. Davis L. Rev. 695 1984-1985
University of California, Davis
Of course, in principle, no evidence is absolutely irrebuttable. And
the greater the allowance one makes for the possibility of exculpation,
the closer one comes to a rule of automatic reversal whenever the defendant
declines to take the stand because of threatened impeachment. A
number of lower courts had displayed no such charity toward a defense
claim of reversible error. When the case against the defendant seemed
strong and there was little they could imagine the defendant saying that
would not be self-defeating, these courts found it easy to conclude that
the defendant would not have taken the stand in any case. 66 To reverse
would confer a windfall upon a defendant who either would not have
testified, or whose testimony would in any event have swayed no one.
In contrast, the supreme court emphasized the difficulties in reliably
predicting that the defendant’s testimony would not have mattered, and
it leaned toward liberality in applying the reversible error test.67 It also
Cal. Rptr. 313, 320 (1972), had not spoken of this issue in reversible error terms, i.e.,
as one that would arise only once other Beagle errors had been found, and when it
accordingly became necessary to weigh the effect of these errors to determine whether
the conviction could stand. Rather, the effect of admitting prior convictions in discouraging
the defendant from testifying had been conceived of as a serious problem in itself,
at times sufficient to warrant reversal even if the prior convictions were otherwise relevant
and not prejudicial. See People v. Barrick, 33 Cal. 3d 115, 129, 654 P.2d 1243,
1251, 187 Cal. Rptr. 716, 724 (1982). Thus, the court at one time viewed the testimony-
discouraging effect not merely as a factor in prejudicial error analysis but as a
cognizable harm in itself.
66 E.g., People v. Fisher, 153 Cal. App. 3d 826, 200 Cal. Rptr. 683 (1984); People
- Logan, 131 Cal. App. 3d 575, 182 Cal. Rptr. 543 (1982) (“we are unable to discern
any potentially favorable defense”); People v. Barrick, 177 Cal. Rptr. 532, 538 (1981)
(Gardner, J., dissenting), vacated, 33 Cal. 3d 115, 654 P.2d 1243, 187 Cal. Rptr. 716
(1982); People v. Moultrie, 99 Cal. App. 3d 77, 160 Cal. Rptr. 51 (1979).
67 In Spearman, after observing that the evidence against the defendant was strong
but not irrebuttable, the court imagined the things the defendant might have said defensively.
Assuming such testimony would have been forthcoming, the court declined to
“reject the possibility that the jury might have believed appellant.” 25 Cal. 3d at 119,
599 P.2d at 80, 157 Cal. Rptr. at 889. “By refusing to indulge in speculation, this
court preserves the right of every accused person to present his version of the case to the
jury.” Id.; see also id. at 119 n.8, 599 P.2d at 80 n.8, 157 Cal. Rptr. at 889 n.8.
Finally, the court relied on the observation of R. TRAYNOR, THE RIDDLE OF HARMLESS
ERROR 20-21 (1970), that depriving a litigant of the opportunity to present her
version of the case is normally reversible since there is no way of gauging the effect of
the deprivation effect upon the jury’s decision. See also People v. Barrick, 33 Cal. 3d
115, 129-30, 654 P.2d 1243, 1251-52, 187 Cal. Rptr. 716, 724-25 (1982); People v.
Fries, 24 Cal. 3d 222, 228-29, 594 P.2d 19, 23-24, 155 Cal. Rptr. 194, 198-99 (1979);
People v. Rist, 16 Cal. 3d 211, 223, 545 P.2d 833, 841, 127 Cal. Rptr. 457, 465 (1976)
(since defendant did not take the stand, the degree of prejudice resulting from the
court’s failure to exclude the conviction was “not possible” to determine and the usual
— 18 U.C. Davis L. Rev. 696 1984-1985
emphasized that the jury might misperceive the defendant’s failure to
testify and draw improper inferences of guilt from silence.68 Furthermore,
the court rejected any requirement that the defendant make an
offer of proof to show the importance of his intended testimony, reasoning
that this requirement itself would violate the privilege against selfincrimination.
6 9 In summary, this ground for exclusion alone – the
testimony-deterrent effect of the threatened impeachment – created a
near impenetrable barrier to the use of convictions in the case of the
Other arguments could also have been mustered to support the broad
presumption of reversibility. As noted, some lower courts had justified
their refusal to reverse on the basis of a belief that the defendant could
not have offered testimony useful to the defense. However, if the case
against the defendant was so compelling that her testimony would be
useless, why was impeachment through prior convictions necessary? If
she testified, her words, by hypothesis, would be greeted with scorn
because of their inherent improbability. Thus, the very premise for refusing
to reverse – the defendant’s inability to speak usefully in her
own defense – militated against the need to employ the prior convictions
in the first place. However, if her testimony indeed would have
been important, the deterrent effect of admitting the prior convictions
would be exceedingly costly.
Another possible argument in support of a broad rule of reversibility
is that the right to testify is fundamental not only because of its instrumental
contribution to sound factfinding, but because of the importance
tests for reversible error were not applicable). But cf. People v. Fisher, 153 Cal. App.
3d 826, 835, 200 Cal. Rptr. 683, 688 (1984) (the supreme court’s decisions do not
mandate “reversal ‘per se’ whenever the defendant refused to testify” due to the trial
court’s erroneous failure to exclude prior conviction).
If the defendant took the stand, however, a different result was reached. In People v.
Rollo, 20 Cal. 3d 109, 569 P.2d 771, 141 Cal. Rptr. 177 (1977), the court found the
Beagle error not reversible since the defendant in fact had not been deterred from testifying.
He testified, he lost, and he was entitled to no presumption of reversibility. Defendants
might easily have drawn the following moral: Think twice before taking the
stand when your Beagle motion fails.
” E.g., People v. Barrick, 33 Cal. 3d 115, 129-30, 654 P.2d 1243, 1252, 187 Cal.
Rptr. 716, 725 (1982); Note, To Take the Stand or Not to Take the Stand: The Dilemma
of a Defendant with a Criminal Record, 4 COLUM. J.L. & Soc. PROBS. 215,
221-22 (1968) (statistical data showing juries infer guilt from silence).
69 People v. Fries, 24 Cal. 3d 222, 233, 594 P.2d 19, 26-27, 155 Cal. Rptr. 194,
” The Beagle court had said it intended no such result. 6 Cal. 3d 441, 453-54, 492
P.2d 1, 8-9, 99 Cal. Rptr. 313, 320-21 (1972).
— 18 U.C. Davis L. Rev. 697 1984-1985
University of California, Davis
of enabling defendants to present their version of the facts, regardless of
whether the judge thinks they have anything significant to say71
- The Relevance of the Prior Conviction to Credibility
The Spearman court gave a final, and crucial, reason for holding the
prior conviction inadmissible: the evidence lacked the saving grace of
relevance. To reflect on a witness’s credibility, a “prior conviction must
involve dishonesty.”72 That is, the conviction must involve an “intent to
lie, defraud, deceive, [or] steal, etc.” 73 Furthermore, the dishonest intent
had to constitute a necessary element of the offense, if not of its very
statutory definition, rather than be merely an incidental fact of a particular
case.7″ Voluntary manslaughter, for example, would not satisfy
the test, because it lacked any of the required elements of dishonest
intent. In contrast, issuing a check without sufficient funds would qualify,
since one of the crime’s necessary elements was “the ‘intent to
The prior conviction in Spearman, possession of heroin for sale,
failed the necessary-element test. A showing that acts of dishonesty,
such as theft and deception, commonly occur within the heroin trade
would not suffice either. No evidence to this effect had been presented
” The strength of this interest would be immediately apparent if the defendant were
literally barred from taking the stand. In that circumstance, no evidence of guilt, however
strong, would justify denying the defendant the right to speak. See Coe v. Armour
Fertilizer Works, 237 U.S. 413, 424 (1915); Karst, The Supreme Court 1976 Term –
Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 HARV. L. REV. 1,
30 (1977); see also Chambers v. Mississippi, 410 U.S. 284 (1973); Fuentes v. Shevin,
407 U.S. 67, 80-82 (1972); Washington v. Texas, 388 U.S. 14 (1967).
72 Spearman, 25 Cal. 3d at 114, 599 P.2d at 77, 157 Cal. Rptr. at 886; see also
People v. Barrick, 33 Cal. 3d 115, 123-24, 654 P.2d 1243, 1247-48, 187 Cal. Rptr.
716, 720-21 (1982). The dishonesty test stands in sharp contrast to the moral turpitude
standard later adopted by the Castro court in interpreting article I, § 28(f). Indeed,
Castro characterized the very same crime as that involved in Spearman – possession
of heroin for sale – as falling within the moral turpitude standard, and thus relevant
to credibility. See supra notes 23-34 and accompanying text.
” Spearman, 25 Cal. 3d at 114, 599 P.2d at 77, 157 Cal. Rptr. at 886.
“, “The only relevant consideration is whether the prior conviction itself contains as
a necessary element” the dishonest intent. Id. at 116, 599 P.2d at 78, 157 Cal. Rptr. at
887 (emphasis in original). The California Law Revision Commission had proposed
this view at the time of the adoption of the California Evidence Code. 7 CALIFORNIA
LAW REVISION COMMISSION REPORT 141-43 (1965). This view was, however, not
incorporated in CAL. EvID. CODE § 788. Castro, 38 Cal. 3d at 316 n.10, 696 P.2d at
119 n.10, 211 Cal. Rptr. at 727 n.10.
” Spearman, 25 Cal. 3d at 115, 599 P.2d at 77, 157 Cal. Rptr. at 886.
— 18 U.C. Davis L. Rev. 698 1984-1985
at trial, nor could it have been under controlling doctrine.76
To summarize, by the time Spearman was decided, the case law had
developed from the loose standard announced in Beagle to a fairly elaborate
and fixed set of rules interpreting the Beagle factors. First, convictions
were deemed irrelevant to credibility unless the underlying offense
possessed as a necessary ingredient one of the elements of
dishonesty suggested in Spearman. Second, the conviction could not be
for the same or similar offense as that for which the defendant was
currently on trial.7″ Third, if the defendant refused to testify after losing
a Beagle exclusionary motion, the court was disposed to resolve
doubts in the defendant’s behalf by concluding that the defendant’s silence
was caused by the threatened impeachment; that her testimony
might have been significant; and that it might have been believed by the
jury. 8 Against this backdrop, the changes wrought by People v.
Castro” can be appreciated.
- THE RELEVANCE OF PRIOR CONVICTIONS
- The Relevance of Character in Assessing Credibility of the
Before considering Castro further, it is useful to consider a fundamental
issue of relevance: whether prior convictions have any logical
relation to credibility in the special context of a defendant testifying in
her own behalf. The issue has received far less attention than it deserves.
Both the Castro and Spearman courts uncritically assumed that
at least a certain category of convictions was always relevant to credibility
(though they differed in their definitions of that category). The
issue remains whether convictions, whatever the offense, are relevant in
the special context of the witness-defendant. Only if this question is
answered in the affirmative can one usefully proceed to the issue as
traditionally defined: a refined inquiry into the precise contours of the
relevant category. A discussion of the fundamental issue of relevance is
warranted in principle; moreover, it is required by Castro. For Castro
does not mandate the admission of convictions involving moral turpitude;
it only permits it. Admissibility ultimately turns on the trial
court’s exercise of discretion under Evidence Code section 352. Manifestly,
this requires courts to assess the genuine probative value of the
” See supra note 74.
” See supra notes 58-62 and accompanying text.
” See supra notes 63-70 and accompanying text.
” 38 Cal. 3d 301, 696 P.2d 111, 211 Cal. Rptr. 719 (1985).
— 18 U.C. Davis L. Rev. 699 1984-1985
University of California, Davis
evidence, so as to facilitate meaningful comparison with those factors
arguing for exclusion. There is little in Castro that provides guidance
concerning these issues and a good deal that is confusing.
First, the court made “no attempt to list or even further define””0 the
felonies involving moral turpitude; and none of the justices on the court
supposed this to be an easy task.’ Moreover, to qualify under the
moral turpitude standard, said the plurality, the conviction must “necessarily”
8 bespeak that quality. To apply this standard, then, one must
begin with an ethical vision concerning moral turpitude; then one must
have an empirical sense of the set of crimes that “necessarily” manifest
it – keeping in mind the court’s rule forbidding any examination of
the specific facts of the offense to make individualized determinations.
That might suggest that the category of included crimes be narrowly
defined, since many offenses can be imagined that, varying with circumstances,
would demonstrate moral degradation to a high degree, to
a low degree, or perhaps not at all. It is far from clear, however, that
the majority of the court drew this conclusion. The plurality opinion
did present a number of hints as to crimes it believed within the moral
turpitude standard. These are described below.8″
Additionally confusing was the fact that, in endorsing the relevance
of moral turpitude offenses, the majority did not speak of the weight to
which they were entitled or even the process by which their weight
might be assessed. it concluded no more than that there is “some basis
– however tenuous 84 for inferring that one who has been convicted of
such a crime “is more likely to be dishonest than a person about whom
no such thing is known.”85 Finally, it left unclear the process by which
prejudice was to be weighed against probative value, and, in particular,
the role of appellate courts in monitoring the trial courts’ exercise of
80 Id. at 314, 696 P.2d at 118, 211 Cal. Rptr. at 726.
“, The plurality opinion referred to the necessity of proving that every conviction
offered for impeachment involved moral turpitude, “difficult though this may prove to
be.” Id. at 316, 696 P.2d at 120, 211 Cal. Rptr. at 728; see also id. at 316 n.ll, 696
P.2d at 120 n.11, 211 Cal. Rptr. at 728 n.l (“administratively … [the moral turpitude
standard] has proved awkward”); id. at 322, 696 P.2d at 124, 211 Cal. Rptr. at
732 (Grodin, J., concurring and dissenting) (“difficult problems of judicial administration”);
- at 323, 696 P.2d at 125, 211 Cal. Rptr. at 733 (Lucas, J., concurring and
dissenting) (moral turpitude standard is “confusing and uncertain”); id. at 336, 696
P.2d at 134, 211 Cal. Rptr. at 742 (Bird, C.J., concurring and dissenting) (moral turpitude
standard is an “open-ended invitation to judicial chaos”).
82 Id. at 306, 696 P.2d at 113, 211 Cal. Rptr. at 721.
8′ See infra notes 122-27 and accompanying text.
, Castro, 38 Cal. 3d at 315, 696 P.2d at 119, 211 Cal. Rptr. at 727.
— 18 U.C. Davis L. Rev. 700 1984-1985
discretion. It apparently reaffirmed the vitality of People v. Beagle,8 6
but it rejected, to an unspecified degree, the pre-Proposition 8 “Antick
line,”8? typified by Spearman, which had sought to apply the Beagle
standards. It remains to be seen whether the decisionmaking process
can be shifted from “rigid”88 rule toward expanded trial court discretion,
without inviting unprincipled and arbitrary distinctions in the
treatment of prior convictions, varying from judge to judge.
Loose appellate control presupposes that the cases present themselves
in such subtle factual variation as to make disposition on the basis of
rule inappropriate. Does this characterization apply to the screening of
prior convictions? In some respects, it almost surely does not. Thus,
Castro purported to emancipate the California courts from the rulebound
regime of the Antick line of cases. Yet, ironically, the supreme
court’s first essay in this direction entailed laying down yet another
rule, simply one more to its liking (that moral turpitude henceforth was
the measure of the relevance of prior convictions). And the court designated
possession of heroin for sale as a charter member of the moral
turpitude class. Are trial courts, in the name of discretion, now free to
reject either that general standard, or its application to the crime of
possession for sale, if they so desire? Presumably not, and for good
reason. As to such an abstract and general issue – which crimes, by
virtue of their indispensable elements, manifest moral turpitude –
there can be only one right answer. One can debate whether the court’s
answer was indeed the right one. But once provided, that answer presumably
must be the same for all courts, and there can be no room for
creative discretion. To what degree and in what respects, then, does
Castro intend a less “rigid” approach than had prevailed before? To
what degree can a less “rigid” approach be adopted that does not become
victim to incompatible and unanalyzable intuitions, varying with
the courtroom in which the decisions are made? The scope and standard
of appellate review in this area remain in considerable confusion.
The argument to be developed here starts with accepting, for the
sake of argument, the court’s moral turpitude standard. The argument
proceeds with the contention that character evidence, so limited, barely
reaches the threshold of relevance in the special context of the witness-
” 6 Cal. 3d 441, 492 P.2d 1, 99 Cal. Rptr. 313 (1972); see Castro, 38 Cal. 3d at
306-07, 696 P.2d at 113-14, 211 Cal. Rptr. at 721-22; supra notes 46-50 and accompanying
‘7 Castro, 38 Cal. 3d at 308, 696 P.2d at 115, 211 Cal. Rptr. at 723.
88 Id. at 308, 696 P.2d at 114, 211 Cal. Rptr. at 722.
— 18 U.C. Davis L. Rev. 701 1984-1985
University of California, Davis
defendant. 9 Trial courts must necessarily grapple with this issue of relevance
in exercising their discretion to weigh the admissibility of prior
convictions. To be relevant at all, evidence must help refine the
factfinder’s assessment of probabilities concerning a disputed fact in
light of all the other known circumstances. A salient known circumstance
in the context at hand is that the witness has taken the stand to
testify in her own defense. Assume that the defendant has suffered
prior convictions for crimes that speak strongly of her mendacity (however
one defines the category of convictions for which this is true). The
issue then is whether such evidence is relevant under the special circumstance
in which she takes the stand to testify in her own behalf. An
almost instinctive response is to say “of course.”‘” However, for all its
common sense relevance, such evidence is all but irrelevant in this
The argument rests on two assumptions. First, innocent defendants,
being innocent, have little motive to lie; accordingly, if they choose to
testify, they will usually testify truthfully. (Occasional exceptions arise
when an innocent person is motivated to testify falsely to protect a third
party, or to improve the evidence of innocence by gilding the lily.9″)
Second, guilty people, being guilty, will of necessity testify falsely when
they take the stand in support of a not guilty plea. (This assumption,
also, is not universally valid. For example, a guilty person may testify
truthfully when she merely seeks to rebut a particular item of false
testimony without herself offering any false testimony, or when she is
testifying to some preliminary issues going to admissibility rather than
to guilt or innocence.)
Although it is impossible, by definition, to know at the outset of a
trial whether a defendant is guilty or innocent, to the degree one grants
the above two assumptions, it follows that whether the defendant is
guilty or innocent, the prior convictions have little relevance. If the defendant
is innocent, the prior convictions are irrelevant, since, for the
” In itself this is not a very demanding test given that evidence is deemed “relevant”
if it has “any tendency in reason” to further the proof of a material fact. CAL. EVID.
CODE § 210 (West 1966).
” For a general discussion of relevance, see 3A J. WIGMORE, supra note 2, § 37.
” The common sense underpinnings of such evidence have been described earlier,
supra note 36 and accompanying text.
9 This possibility no doubt makes the argument less than 100% valid but, I believe,
it remains true for the most part. In any event, the primary aim of the criminal system,
however, is not to punish innocent people because they have lied but to foreclose exoneration
of the guilty. Facilitating the punishment of innocent persons serves a dubious
societal interest, even assuming they have violated their obligation to tell the truth.
— 18 U.C. Davis L. Rev. 702 1984-1985
most part, she lacks the motive to lie. Prior convictions might make us
question the defendant’s character for veracity but not her self-interest,
which is to tell the truth when she is indeed innocent. For such a person,
happily, self-interest and morality tend to march hand-in-hand.93
Accordingly, since character plays little role in shaping the innocent
person’s testimony, it is generally irrelevant to her decision to tell the
Turn now to the guilty person. It must be kept in mind that this
individual is not only guilty but that she has elected to take the stand.
A moment’s reflection will show that if she is guilty, there is a strong
possibility that she will lie. This is true not because she has suffered
prior convictions. Rather, because she is guilty, she cannot testify truthfully
that she is innocent. Thus, the defendant’s truthfulness depends
not on her character but on her actual innocence. It follows that it
would aid us greatly in determining her truthfulness if we knew
whether she was guilty. But this is the very issue yet to be determined
at trial. This is when the prior convictions really help: not by revealing
the defendant’s character for credibility but by disclosing her propensity
toward criminality. The greater the weight accorded to the prior
convictions, the more likely that she is a criminal type, that she committed
the crime in question, and that she is therefore lying when she
proclaims her innocence. In short, the inference progresses from past
convictions to guilt, rather than from past convictions to credibility. The
evidence serves little role for its proclaimed legitimate purpose – that
of helping to assess credibility – but a major role for its theoretically
prohibited purpose94 – that of assessing criminal propensity.
A counter argument might take the following form: Admittedly, the
defendant’s character for veracity does not matter once she elects to proclaim
her innocence. Having made that decision, truthfulness no longer
depends on her character but on her guilt. This fact, however, merely
pushes the appropriate inquiry one step back – to the point when the
defendant is considering whether to proclaim innocence. That decision
is not foreordained; at the outset of the trial false testimony is merely
” Even the least upright of men, when he is not under the influence of some
seducing interest, and is surrounded by the restraints of law, and exposed to
the shame and punishment of false testimony, will not be so much his own
enemy, as to commit a dangerous crime [perjury] without any view of
- BENTHAM, A TREATISE ON JUDICIAL EVIDENCE 250 (M. Dumont trans. 1825).
Bentham said this in support of the testimonial competence of persons who had suffered
felony convictions. See Uviller, supra note 2, at 867-68.
” See supra note 3.
— 18 U.C. Davis L. Rev. 703 1984-1985
University of California, Davis
one of the defendant’s options. A second option is not to testify at all,
leaving the state to carry its burden of proof. A third option is to manifest
contrition and to plead guilty. In selecting from these options, the
defendant’s character does come into play. The chronic liar, the argument
proceeds, is more likely to employ falsehoods to resist conviction
than is the generally truthful person (even when that person is guilty of
the charged offense). And, it follows, if we know the defendant has a
shaky commitment to the truth, we are entitled to receive her decision
to assert innocence with skepticism.
This argument perhaps makes out a case for the formal relevance of
the evidence. 5 But the evidence takes on genuine importance only if
one is prepared to make the following assumption: When a person is
indeed guilty of a serious crime, the truthfulness of her testimony is
likely to be determined not by inexorable survival pressures but by her
character for truthfulness. One must assume, in short, that the person’s
character remains an important determinant for truthtelling even when
she is charged with a serious crime, is indeed guilty, and contemplates
the prospect of conviction. In the words of one court, since “every criminal
defendant may be under great pressure to lie, the slight added relevance
which even a perjury conviction may carry would not seem to
justify its admission.”96 Indeed, one might speculate, the greatest force
inhibiting guilty defendants from lying is not the product of their character,
but the pragmatic advice of counsel that lying is a risky strategy,
given the adversary’s power to cross-examine and to rebut.
Thus, the relevance of character evidence at best is formal and minimal.
Prior convictions disclose little with respect to the defendant who
has no motive to lie and little with regard to the guilty defendant who
has elected to take the stand to proclaim innocence. This is not the view
that prevailed in California either before or after the adoption of article
I, section 28(f), that is, under either the Spearman or the Castro doctrines.
Both cases share the assumption that prior convictions, provided
their scope were defined properly, possessed substantial probative value
even – perhaps especially – in the context of the witness-defendant.
The difference between the two approaches, thus, is one of degree
(though hardly unimportant on that account). Different theories underlie
these two approaches. By analyzing these theories through concep-
” See supra note 89.
96 Hawaii v. Santiago, 53 Hawaii 254, 259, 492 P.2d 657, 661 (1971); see Spector,
Impeachment Through Past Convictions, A Time for Reform, 18 DE PAUL L. REV. 1,
15 (1968); Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters,
70 YALE L.J. 763, 778 (1961).
— 18 U.C. Davis L. Rev. 704 1984-1985
tual models, the fallacies in both doctrines can be explored.
- The Relevance of Prior Convictions to Impeach Credibility:
Let us now acept, for the sake of argument, the largely unrealistic
assumption underlying both Spearman and Castro, that prior convictions
can cast a powerful light on a defendant’s credibility at trial. Or,
to put the point somewhat differently, let us suppose the witness was
someone other than the defendant; the argument just considered as to
irrelevance of character evidence in the context of a witness-defendant
would then not apply. This brings us to the issue as it has been conventionally
defined. Assuming that at least some prior convictions might
usefully contribute to fathoming a witness’s credibility, which ones?
A major hurdle in developing a discriminating response is the difficulty
in resolving several confusing issues of an empirical and psychological
sort. For example, what is the nature of character evidence and
can it be meaningfully compartmentalized into different traits such as
veracity, honesty, peacefulness, or law-abidingness? Is there any relationship
between these traits? How broadly should these traits be defined
if they are to shed light on witness credibility?
The answers commonly given can be seen as variations on four competing
models. These can be labeled the “veracity,” “honesty,” “global”
(or “moral turpitude”), and “contextual” models. The point of considering
these alternatives is not that the approach of Spearman, Castro,
or any other competing rule conforms perfectly to any of these models.
The models help, however, to sort out various perspectives and provide
a useful framework for evaluating the competing ways of thinking
about the subject.
- The Veracity Model
The veracity model affords the most limited scope for admitting prior
convictions. The narrow trait of veracity is deemed the only trait sufficiently
connected with a person’s truth-telling tendencies to be worth
considering. The propensity toward veracity is seen as a natural com-
,ponent of character, subject to its own more or less autonomous controls.
Adherents to this perspective might view the behavioral portions
of the mind as consisting of autonomous compartments, each regulating
a narrow facet of behavior. Each compartment is capable of producing
good or bad behavior of one category without affecting for good or ill
the behavior of another category. As Wigmore put it, “[c]haracter is
only an abstract group-term; what actually exists is a number of virtu-
— 18 U.C. Davis L. Rev. 705 1984-1985
University of California, Davis
ally separate traits, [for example] honesty, violence, benevolence [and
others].”97 Under this model, evidence that a person was violent, or a
lawbreaker, would speak to the wrong compartment. Only evidence
that the person had lied, distorted, or deceived in the past would bear
on whether the person was likely to lie, distort, or deceive when
If we somehow had access to these compartments, we could study the
character trait directly. But we lack direct access. However, a wealth of
circumstantial evidence exists in the person’s behavioral choices in a
multiplicity of life situations. From these we can extrapolate the person’s
characteristic mode of behavior – truthful or untruthful – and
determine probable truthfulness when she testifies at trial. A good illustration
of a conviction admissible under the veracity model would be
perjury”‘ – similar conduct under similar circumstances. Other examples
might be convictions involving false statement, false pretense, forgery,
99 income tax fraud, and certain other forms of criminal fraud,
each involving deception.’ Indeed, in each case deception is not merely
an accidental feature of the way the particular crime was committed; it
“7 J. WIGMORE, SCIENCE OF JUDICIAL PROOF 106 (1937) (emphasis in original).
” See, e.g., People v. Fries, 24 Cal. 3d 222, 226, 229 n.7, 594 P.2d 19, 22, 24 n.7,
155 Cal. Rptr. 194, 197, 199 n.7 (1979).
, People v. Antick, 15 Cal. 3d 79, 99, 539 P.2d 43, 56, 123 Cal. Rptr. 475, 488
“o0T his definition of the scope of relevant convictions is similar to that adopted in
Rule 609(a)(2) of the Federal Rules of Evidence, rendering convictions involving “dishonesty
or false statement” generally admissible. The Congressional Reference Report
concerning that provision said it was intended to adopt the crimen falsi standard:
“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 untruthfulness, deceit or falsification
bearing on the accused’s propensity to testify truthfully.” S. REP. No. 1277, 93d Cong.,
2d Sess. 14, reprinted in 1974 U.S. CODE CONG. & AD. NEWS 7051, 7061.
Difficulties with the federal definition of crimen falsi are vividly described by
Uviller, supra note 2, at 871-72; see also CALIFORNIA LAW REVISION COMMISSION,
TENTATIVE RECOMMENDATION AND A STUDY RELATING TO THE UNIFORM RULES
OF EVIDENCE, ART. IV, WITNESSES 756 (1964), which distinguishes between convictions
for perjury and for embezzlement: “A conviction for perjury suggests a bad character
for truthfulness. A conviction for embezzlement suggests a bad character for honesty.”
The Commission offered no explanation for the distinction. Perhaps its view was
that perjury involved lying, whereas embezzlement need not. Embezzlement, however,
involves an abuse of trust that might best be regarded as implicitly deceitful. There is
thus a fluidity of definition here, and embezzlement probably stands on the borderline
between the veracity model and the honesty model considered below. The matter of
characterization is vital under any rule that draws the line of admissibility between
crimes of nonveracity and crimes of dishonesty.
— 18 U.C. Davis L. Rev. 706 1984-1985
is part of its very definition. Any crimes conforming to the veracity
model probably also would comply both with the Spearman honesty
test and the Castro moral turpitude test.
- The Honesty Model
The honesty model represents a broader view of relevance. It considers
as relevant not only crimes of nonveracity – those requiring an
intent “to lie, defraud [and] deceive”‘ 1 – but also any other crimes
that evidence “dishonesty.”‘ 2 Even though this category lacks false
statement as a required element, the prior convictions speak with sufficient
force to credibility to warrant their use for impeachment purposes.
This view most closely approximates the Spearman standard.
Under Spearman, crimes within the honesty model (over and above the
crimes of nonveracity) reduce to those with a larcenous element, meaning
those reflecting an “intent to . . .steal,”‘ 3 such as larceny, robbery,
theft, and burglary.”‘ Robbery, from this viewpoint, is a hybrid
crime since it is both larcenous and assaultive. Theft, the larcenous aspect
of robbery, reflects on honesty; the use of force or fear, the assaultive
aspect, does not.’ 5
Whatever else may be said for or against the Spearman approach, it
offered the not inconsiderable advantage of a rule of thumb, a virtually
self-applying standard, in an area where many observers have commended
administrative convenience rather than finely honed discretionary
decisionmaking.06 This virtue proceeds from two features of
‘0’ People v. Spearman, 25 Cal. 3d 107, 114, 599 P.2d 74, 77, 157 Cal. Rptr. 883,
102 Id. Dishonesty and falsehood were seen as distinct categories in Evidence Code §
786, which restricted evidence going to credibility to the traits of “honesty or veracity.”
CAL. Evm. CODE § 786 (West 1966); see also J. WEINSTEIN & M. BERGER, supra
note 2, at 609-27 to -29 (congressional debate over the phrase “dishonesty or false
statement” in Rule 609(a) of the Federal Rules of Evidence).
103S pearman, 25 Cal. 3d at 114, 599 P.2d at 77, 157 Cal. Rptr. at 886; see supra
notes 72-76 and accompanying text.
104 Under this theory, the relevance of a burglary conviction to impeachment would
depend on the specific intent element of the particular burglary, since the general crime
does not require that the entry be made with a larcenous intent. CAL. PENAL CODE
- 459 (West Supp. 1985); see People v. Holt, 37 Cal. 3d 436, 453-54, 690 P.2d 1207,
1216-17, 208 Cal. Rptr. 547, 556-57 (1984).
10 People v. Fries, 24 Cal. 3d 222, 229 n.7, 594 P.2d 19, 24 n.7, 155 Cal. Rptr.
194, 199 n.7 (1979); People v. Rist, 16 Cal. 3d 211, 220, 545 P.2d 833, 839, 127 Cal.
Rptr. 457, 463 (1976).
106 Judge Burger adopted a “rule of thumb” approach in favoring the admission of
crimes of “dishonest conduct” and the exclusion of crimes of violence. Gordon v. United
— 18 U.C. Davis L. Rev. 707 1984-1985
University of California, Davis
Spearman. The first is its insistence that dishonesty be determined by
reference to the necessary elements of the offense, rather than by the
adventitious facts of the offense (as did Castro, also, under its moral
turpitude test). The second is that Spearman defined the elements that
met its test with a high degree of specificity (as Castro did not). There
may be occasional debate as to whether an offense falls within the
Spearman honesty standard; there will be a superabundance of debate
as to whether an offense falls within the Castro moral turpitude standard
(at least, once one moves beyond offenses already within the honesty
model, as to which the moral turpitude standard adds nothing beyond
what is already accomplished under Spearman).
Thus, the Spearman honesty standard may be convenient. Is the
standard, however, conceptually or experientially coherent? Why, for
example, do crimes of larceny bear on credibility? Even if they do, why
do they alone earn their way into the expanded category of the honesty
model?” 7 In short, what accounts for the view that such crimes offer
some distinctive insight into veracity?
The answer has perhaps been regarded as so self-evident, so intuitively
sound, as to require no explanation. For Judge (now Chief Justice)
Burger, it was simply a matter of “common human experience”
that acts of stealing should be included with “acts of deceit, fraud, [and]
cheating” as conduct “universally regarded”‘0 8 as reflecting on a person’s
honesty and integrity.
Mason Ladd wrote:
Personal crimes of murder, assault, and mayhem, show a vicious disposition
but not necessarily a dishonest one. On the other hand robbery, larceny,
and burglary, while not showing a propensity to falsify, do disclose a
disregard for the rights of others which might reasonably be expected to
express itself in giving false testimony whenever it would be to the advantage
of the witness. If the witness had no compunctions against stealing
another’s property or taking it away from him by physical threat or force,
States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390 U.S. 1029 (1968); see
also People v. Harrison, 198 Cal. Rptr. 762, 771 (1984) (hearing granted) (basing
admissibility on whether the impeaching crime is one of dishonesty borders on the
“schizophrenic”); MCCORMICK ON EVIDENCE, supra note 42, § 43, at 93 n.5 (1984);
- WEINSTEIN & M. BERGER, supra note 2, 11 609, at 609-75 to -76.
,07T he debate over the use of the “etc.” in the Spearman standard of relevance, see
supra note 73 and accompanying text, centers around what other similar crimes might
qualify or whether the “etc.” rendered the court’s standard “open-ended,” “.vague,”
and a “meaningless catchall.” See Spearman, 25 Cal. 3d at 115 n.4, 599 P.2d at 78
n.4, 157 Cal. Rptr. at 887 n.4.
“o’ Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967), cert. denied, 390
U.S. 1029 (1968).
— 18 U.C. Davis L. Rev. 708 1984-1985
it is hard to see why he would hesitate to obtain an advantage for himself
or friend in a trial by giving false testimony.”0 ‘
This is largely a conclusionary statement, and the reasons do not explain
what is distinctive about theft. The reasoning could equally apply
to all calculated, lrather than impulsive, crimes, and in particular, to all
self-serving criminal activity undertaken at the expense of others.
Yet this view of theft crimes’ special relevance has an undeniable
appeal. Parents might, for example, instruct their child that honest people
do not steal, without feeling that they were abusing the language.
The same parents would be far less likely to say that honest people do
not fight, kill, or take heroin. While such conduct might be condemned,
the condemnation would be phrased in terms of the heartlessness, destructiveness,
or self-destructiveness of the conduct, not its dishonesty.
There is, however, a lack of fit between the category of included
offenses and the principle of relevance offered in its justification. For
example: Is possession of heroin for sale – the prior conviction involved
in Spearman – properly regarded as irrelevant under the honesty
standard, as the Spearman majority held? Or, under that very
standard, is the offense rightly viewed as “loaded with deception,””
and one that by its “very nature . . . speak[s] eloquently of the credibility””‘
of the person committing it, as urged by the Spearman dissent?
Further, is the crime of rape marked by “an element of stealth
which bears some rational relationship to dishonesty, ‘ as a lower
court decided; or as one not “significantly” involving honesty or integrity,
as the California Supreme Court later ruled (without explanation)?
“3 Is robbery a crime of dishonesty because it involves the ele-
“0 Ladd, supra note 2, at 180. G. FLETCHER, RETHINKING CRIMINAL LAW § 1.1,
at 5 n.5 (1978) informs us that the English Theft Act of 1968, c.60, § 1 defines stealing
as an act of one who “dishonestly appropriates property belonging to another” (emphasis
“0 Spearman, 25 Cal. 3d at 121, 599 P.2d at 82, 157 Cal. Rptr. at 891 (Richardson,
J., dissenting); see also United States v. Ortiz, 553 F.2d 782, 784 (2d Cir.), cert. denied,
434 U.S. 897 (1977) (“[A] narcotics trafficker lives a life -of secrecy and dissembling
in the course of that activity, being prepared to say whatever is required by
the demands of the moment, whether the truth or a lie.”).
“‘ Spearman, 25 Cal. 3d at 122, 599 P.2d at 82-83, 157 Cal. Rptr. at 891-92
(Richardson, J., dissenting).
1 People v. Delgado, 32 Cal. App. 3d 242, 250, 108 Cal. Rptr. 399, 405 (1973).
People v. Rist, 16 Cal. 3d 211, 221, 222 n.10, 545 P.2d 833, 840, 841 n.10, 127
Cal. Rptr. 457, 464, 465 n.10 (1976); see also Spector, Impeaching the Defendant by
His Prior Convictions and the Proposed Federal Rules of Evidence: A Half Step Forward
and Three Steps Backward, I Loy. U. CHI. L.J. 247, 249 (1970) (“There is
absolutely no connection between a conviction for rape and the willingness to tell the
— 18 U.C. Davis L. Rev. 709 1984-1985
University of California, Davis
ment of stealth, as the supreme court had held?’ Or is it a crime with
no bearing on credibility because:
There is no deceit in armed robbery. You take a gun, walk out, and put
it in a man’s face and say, “Give me your money,” or walk up to the
counter of the cashier and say, “this is a holdup; give me your money.”
There is no deceit in that. They are not lying. They mean business. They
will murder you if you do not do it.”‘
Locating the source of the difficulty is easy. Deception of some sort
typically pervades each of these examples, as, indeed, it does most
crimes. But the deceptions are of various sorts. Depending on the
crime, the deception may occur at different stages and may perform
different functions for the perpetrator. What types of deception should
count in determining whether the crime bears on credibility? More specifically,
is the defining characteristic that a given crime is normally
committed covertly, secretively, or by stealth?” 6 If so, then, to be sure,
larcenous crimes would generally qualify as crimes of dishonesty. But
so would most crimes, including rape. In both examples, the victim
often is deceitfully maneuvered into a position of vulnerability so that
the crime can be perpetrated without interference. But if this were the
relevant form of deception, few crimes would be excluded under
Spearman since concealment in aid of the consummation of crime is a
commonplace feature of premeditated crimes.
Perhaps, however, it is not that kind of concealment that is the
touchstone. Perhaps the crucial issue is whether the perpetrator would
normally conceal the crime following its commission to avoid apprehension.
If so, again, this is hardly a unique feature of larceny, since candid
revelation is not a feature of most crimes.
A third possibility is that the relevant concealment is that which the
perpetrator employs to facilitate her retention of the spoils of the crime.
If so, larcenous crimes are indeed a special case. They typically involve
deception not only to avoid interference, apprehension, or punishment,
but also to bolster the criminal’s effective “title” to the stolen property
by falsely holding it out as her own after the crime. But again, why is
this form of deception especially important for impeachment purposes?
Perhaps, finally, the fact that legitimately distinguishes the larcenous
truth when on the witness stand.”).
“‘ See supra note 105 and accompanying text.
…U nited States v. Smith, 551 F.2d 348, 363 (D.C. Cir. 1976) (quoting Senator
“‘ See People v. Rollo, 20 Cal. 3d 109, 126, 569 P.2d 771, 780, 141 Cal. Rptr. 177,
186 (1977) (Richardson, J., dissenting) (solicitation of murder relevant to credibility
since it consists of “secret, conspiratorial conduct”).
— 18 U.C. Davis L. Rev. 710 1984-1985
crimes is that they include as a necessary element the intent to steal.
But this simply states the issue: Why is an intent to steal sufficient to
render the crime relevant to credibility but not, for example, an intent
to commit rape?
The answer provided by Spearman utterly begged the question. It
simply declared as a self-evident truth that any crime marked by an
intent to steal counted as a crime of dishonesty and that others did
If theoretical coherence is lacking, the practical importance of including
convictions for larcenous crimes among those relevant to credibility
is considerable. The number of convictions for crimes within the narrow
veracity model is small; the additional number embraced within
the honesty model – the larcenous crimes – is large.” 8 Moreover, it is
primarily minority group members who accumulate the commonest
I” But see J. WEINSTEIN & M. BERGER, supra note 2, 1 609, at 609-72 to -73
and cases cited in nn. 14-18.
IS The following statistics from BUREAU OF CRIMINAL STATISTICS AND SPECIAL
SERVICES, CALIFORNIA DEPARTMENT OF JUSTICE, DIVISION OF LAW ENFORCEMENT,
CRIME AND DELINQUENCY IN CALIFORNIA I 11 (1980) (Table 31, Felony Arrests Reported)
Total felony arrests reported during the year: 372,435
Of this total, crimes probably relevant to credibility
under the Spearman-honesty model because they possess
a larcenous element, but not relevant under the narrower
veracity model, include robbery (26,715), kidnapping
(2943) (at least to the degree that such crimes were for
the purpose of ransom), burglary (84,160) (to the degree
that an intent to steal was present), theft (51,047), motor
vehicle theft (29,514):
Crimes probably relevant to credibility under both the
Spearman-honesty model and the narrower veracity
model, because the crime employs falsehood, lying or
deceit as a definitional element, include forgery, check
offenses, credit card offenses (11,578), and “other”
(14,432) (to whatever degree this category may embrace
crimes crimes of nonveracity):
The statistics suggest that as many as eight of the nine crimes admissible under the
Spearman-honesty model may be inadmissible under the veracity model. Although the
categories employed do not precisely correspond to either the veracity or honesty models,
and the information concerns total arrests, rather than convictions, the conclusion
can still be drawn from these statistics that the Spearman-honesty model sharply expands
potential admissibility compared to what would be allowed under the veracity.
— 18 U.C. Davis L. Rev. 711 1984-1985
University of California, Davis
types of larceny convictions – theft, robbery, and burglary.”9 Indeed,
as a matter of social reality, impeachment by prior convictions is in
effect a mechanism largely employed against minority group members
when they once again find themselves prisoners on trial.
- The Global (Moral. Turpitude) Model
The global model regards the segmentation of character into tight
compartments as artificial and invalid. Advocates of this model view
distinctions between veracity and honesty on the one hand, and general
character on the other, as exaggerated. They reason that a criminal
past bespeaks bad character and that bad character implies an attenuated
commitment to truthfulness. So, at any rate, jurors should be permitted
to conclude. At the hands of the most uncompromising advocates
of this view, any and all prior convictions would pass the test of relevance.
No argument to the contrary would be heard.’ Any “felony
offense necessarily bears on one’s credibility regardless of the nature of
“‘ Again, viewing the arrest (rather than conviction) statistics for 1980, see supra
note 118, the following picture emerges:
Crimes and number Non-
(larcenous element) White Hispanic Black Other White
Robbery (26,715) 24.3% 26.3% 47.4% 2% 75.7%
Burglary (84,160) 47.7 25.3 24.9 2 52.3
Theft (51,047) 48 21.6 28.2 2.2 52
Motor Vehicle Theft (29,514) 40 27.4 30.7 2 60.1
Kidnapping (2493) 38.2 29.5 29.5 2.8 61.8
Crimes and number
(lying or deceit)
Forgery, check offenses,
credit card offenses (11,578) 52.1 13.3 32.4 2.2 47.9
Other (14,432) 52 20.4 25.2 2.4 48
‘2S0 uch is the view embraced by Justice Lucas in Castro, 38 Cal. 3d 301,323, 696
P.2d 111, 125, 211 Cal Rptr. 719, 733 (1985) (concurring and dissenting); see also
People v. Woodard, 23 Cal. 3d 329, 343-45, 590 P.2d 391, 399-401, 152 Cal. Rptr.
536, 544-46 (1979) (Clark, J., dissenting). It is too difficult to make refined, individualized
decisions as to which are probative and which are not. See id. at 343-44, 590
P.2d at 400, 152 Cal. Rptr. at 545 (quoting B. WITKIN, CAL. EVIDENCE § 1243, at
1146 (2d ed. 1966)). Therefore, as a matter of judicial convenience, all convictions
should be admitted and the jury permitted to weigh evidential value. See J. WEINSTEIN
& M. BERGER, supra note 2, 1 609[021, at 609-54 to -55. For the conflicting views in
Congress over whether all felony convictions should have been made automatically admissible
under the Federal Rules of Evidence or made subject to discretionary exclusion,
see id. at 609-4 to -40. See generally id. 609[011-609103].
— 18 U.C. Davis L. Rev. 712 1984-1985
that offense.” ’21
This, of course, is not the point of view articulated by the majority in
Castro. In adopting the moral turpitude test, it emphasized that that
category embraced something less than every possible offense. Judging
from the sparse hints in the Castro plurality opinion, the following
convictions would be disfavored for impeachment purposes: An ancient
and fairly minor conviction;’22 conspiracy to tattoo a person under 18;123
and simple possession of heroin.124
Convictions of the following sort, however, received at least tentative
endorsement in Castro under the moral turpitude standard: Possession
of heroin for sale;2 5 “child molestation, crimes of violence, torture, brutality
and so on”;126 and crimes which are “assaultive in nature.”‘ 127 The
link from such crimes to credibility, the plurality said, is “not so irrational
that it is beyond the power of the People to decree that in a
proper case the jury must be permitted to draw it, if it wishes, and the
‘no limitation’ language of subdivision (f) makes it abundantly clear
that the People so decreed.”‘ 128 Such crimes are potentially admissible
because they reflect “moral turpitude,” a “general readiness to do evil,”
“moral depravity,” or “bad character.’ 129
Further insight concerning the nature of, and justification for, this
standard may come from the dissents of Justice Richardson in several
pre-Proposition 8 cases. His outlook appears to have been similar to
that of the Castro plurality; furthermore, the Castro plurality assumed
that the dissenters, Justice Richardson prominently among them, had
been vindicated by the adoption of article I, section 28.13
Justice Richardson had argued .that crimes such as possession of her-
“‘ Castro, 38 Cal. 3d 301, 323, 696 P.2d 111, 125, 211 Cal. Rptr. 719, 733 (1985)
(Lucas, J., concurring and dissenting).
22 The court’s example was the impeachment of an elderly victim of a mugging for
a youthful conspiracy to disturb the peace, id. at 309, 696 P.2d at 115, 211 Cal. Rptr.
at 723, though such offense was apparently excludable not because it fell outside of the
moral turpitude category, but rather on Evidence Code § 352 grounds.
Id. at 314 n. 7 , 696 P.2d at 119 n.7, 211 Cal. Rptr. at 727 n.7.
22 The Castro majority held this prior conviction irrelevant to credibility. Id. at 317,
696 P.2d at 121, 211 Cal. Rptr. at 729.
…Th e admissibility of which was affirmed in Castro, as manifesting an “intent to
corrupt others.” Id.
26 Id. at 315, 696 P.2d at 119, 211 Cal. Rptr. at 727.
.2 Id. (quoting People v. Rist, 16 Cal. 3d 211, 222, 545 P.2d 833, 840, 127 Cal.
Rptr. 457, 464 (1976)).
230 Id. at 307-08, 696 P.2d at 114-15, 211 Cal. Rptr. at 722-23.
— 18 U.C. Davis L. Rev. 713 1984-1985
University of California, Davis
oin for sale,”‘ solicitation to commit murder, 3’2 and others, were highly
probative on the issue of witness credibility. Even so, he was not a fullfledged
member of the global club. He was prepared to draw distinctions
as others ” would not. For him, crimes involving only assaultive
behavior or crimes against the public peace were inadmissible.’34 Possession
of heroin for sale, on the other hand, was “necessarily . . .
loaded with deception.”‘3 5 More fundamentally, he noted: “A jury, if it
was permitted to learn, might reasonably question the honesty or veracity
and therefore the credibility of those who deliberately and knowingly
shun the common standards of decent and legal behavior by
choosing to profit from the sale of heroin.”‘ 36 He thus anticipated the
Castro court’s decision affirming the relevance of convictions of possession
of heroin for sale to credibility. The commission of this crime represented
a general rejection of societal norms. Its bearing on credibility
might have been indirect, but its relevance to credibility was no less.
Even if Justice Richardson’s general theory of relevance were accepted,
as the Castro plurality seemed to do, uncertainties as to the
scope of the crimes to which it applies – or in Castro’s terms, the
scope of the moral turpitude category – is no small matter.”37 The
problem with Justice Richardson’s approach, however, is more fundamental.
Even if his relevance theory was valid, the use of the convictions
embraced by this view would create a broad danger of prejudice.
The danger, ironically, is underscored by the very theory offered in
support of this expansive model. That theory is that any criminal convictions
demonstrating a lack of integrity, ruthless self-seeking, or will-
“‘ People v. Spearman, 25 Cal. 3d 107, 119-23, 599 P.2d 74, 81-83, 157 Cal. Rptr.
883, 890-92 (1979) (Richardson, J., dissenting).
132 People v. Rollo, 20 Cal. 3d 109, 126-28, 569 P.2d 771, 780-81, 141 Cal. Rptr.
177, 186-87 (1977) (Richardson, J., dissenting).
133 See supra note 120.
See People v. Spearman, 25 Cal. 3d 107, 120-21, 599 P.2d 74, 81, 157 Cal. Rptr.
883, 890 (1979) (crimes of violence, per se, do not reflect on honesty or credibility)
(Richardson, J., dissenting); J. WEINSTEIN & M. BERGER, supra note 2, 609, at
609-55 (“relationship between crimes of violence and truthtelling is particularly tenuous”);
Ladd, supra note 2, at 180 (“Personal crimes of murder, assault, and mayhem,
show a vicious disposition but not necessarily a dishonest one.”). But see People v.
Woodard, 23 Cal. 3d 329, 343-45, 590 P.2d 391, 399-401, 152 Cal. Rptr. 536, 544-46
(1979) (Clark, J., dissenting).
“‘ People v. Spearman, 25 Cal. 3d 107, 121, 599 P.2d 74, 82, 157 Cal. Rptr. 883,
891 (1979) (Richardson, J., dissenting).
31 See supra note 81 and accompanying text.
— 18 U.C. Davis L. Rev. 714 1984-1985
ingness to “shun the common standards of decent and legal behavior”‘ 38
show also that the defendant is likely to place a low value on telling the
truth. Lawlessness of this sort and untruthfulness are thus inseparable.
Perhaps so, but does not this very theory make such lawlessness good,
or even better, evidence that the defendant had the propensity to commit
the charged crime? Although the limiting instruction purports to bar
such use,'” the limitation is almost impossible for the jury to understand
or to follow.’ 0 It attempts to preclude a use that is supported by
the very theory deployed to demonstrate the conviction’s relevance to
credibility. The problem is not merely that the jury is apt to use the
evidence for extraneous, unintended, and improper purposes. Rather, in
using it precisely for the intended purpose – to reveal the defendant’s
indifference to social and legal norms – the jury will necessarily use it
as evidence of criminal propensity. The jury is invited to reason that if
the defendant sustained this prior conviction, she would not hesitate to
lie to cover her tracks at trial. If the jurors take that step, how can they
resist, logically or psychologically, the next step and reason that, by the
same token, the defendant would not hesitate to commit the crime for
which she now stands charged?
This danger of prejudice is, then, not an accidental or perverse result
of the use of a conviction for a proper limited purpose; it is a virtually
inevitable result of the jury’s adoption of the theory endorsed by Castro
and articulated so well by Justice Richardson. Almost to a certainty,
the jury will conclude from the prior conviction first that the defendant
probably committed the charged crime, and derivatively, that she is lying
in her present testimony. This is precisely the reverse of the logical
progression the law proclaims it wishes the jury to employ in considering
prior conviction evidence.
The danger of prejudice is most pronounced under the expansive
moral turpitude standard; it is least pronounced under the narrowly
defined veracity model. The reason for this is worth examining. It does
not primarily lie in the fact that the former category embraces a far
greater number of convictions than the latter, though it does. The reason
is, rather, that the potential for prejudice is of a different order of
magnitude in the two cases. Under the veracity model the danger of
runaway jury inferences is fairly muted. When the prior conviction involves
nonveracity as a definitional element, one might at least entertain
” Spearman, 25 Cal. 3d at 121, 599 P.2d at 82, 157 Cal. Rptr. at 891 (Richardson,
,’ For the pattern instruction on this point, see supra note 56.
,o See supra note 43.
— 18 U.C. Davis L. Rev. 715 1984-1985
University of California, Davis
the hope that the jury could focus on that feature and understand the
judge’s instruction that it was to use the conviction to assess veracity
and for no other purpose. Such a conviction calls for no intermediate
inference of general bad character. But, as already noted, the same can
hardly be said of a conviction that demonstrates the defendant’s “general
readiness to do evil.”…. Having, then, in theory rejected the use of
character evidence as a basis for inferring criminal propensity,’ 2 the
moral turpitude approach in effect admits the evidence by reclassifying
it as credibility evidence.
Doubtless many believe propensity evidence ought to be admissible
and that the general bar against character evidence should be rescinded.
Important reasons have until now been deemed sufficient to warrant
exclusion of such evidence. These reasons are both instrumental and
noninstrumental. The instrumental aspect is well understood. Prior
convictions invite the punishment of the defendant for being a bad person.
Their use therefore threatens to lower the effective standard of
proof and interfere with the instrumental goal of accurate factfinding.
The noninstrumental concern is this: In focusing on the kind of person
the defendant is, evidence of past criminality threatens to hold people
accountable not merely for what they do, but for what they are.
Such use interferes with the goal of treating the defendant as a person
on trial only for the charged crime, unencumbered with the burden of
coping with prior judgments of wrongdoing. The issue here goes beyond
a mere concern about the debasement of the factfinding process. It
expresses a view that would have weight even if one could be assured
that prior convictions would be given no greater weight than they rationally
deserved in assessing guilt. The underlying principle is one of
absolution, the belief that once people have paid the price for their
prior wrongs they are entitled to a fresh chance and the opportunity to
proceed anew. To permit the use of criminality as character evidence
represents an important departure from this value.
Decisions regarding the admissibility of character evidence represent
a disguised value choice concerning the parts of the defendant’s past
that are open for review in a criminal prosecution. The general bar on
character evidence is an attempt to ensure that the focus is on the
charged conduct – on the deed, not the doer. This is not the occasion
to redebate the virtues of the general ban on propensity evidence.’ 3
The point is rather that the objections are too important to be set aside
Castro, 38 Cal. 3d at 314, 696 P.2d at 119, 211 Cal. Rptr. at 727.
IZ See supra note 3.
— 18 U.C. Davis L. Rev. 716 1984-1985
disingenuously, indirectly, or unwittingly.”‘4 The exercise of the discretion
called for by Evidence Code section 352 seems an appropriate occasion
for recognizing the value of permitting previously convicted defendants
to commence their lives afresh as they again find themselves
defendants in court.
- The Contextual Model
The contextual model differs from those already considered because
its goal is neither per se to broaden nor to narrow the range of admissibility.
It calls, rather, for a broader information base in making the
decision. It rejects the bare fact of conviction as an abstraction bereft of
detail, texture, color, and humanity. Without the contextual qualifiers,
the prior conviction is seen as facilitating the stereotypic treatment of
the defendant.145 This model reasons that people compartmentalize
their commitment to truthfulness and to honesty in refined ways. These
qualities are not wholesale, but retail qualities that require a detailed
knowledge of the underlying facts and the motivating circumstances if
one is to draw meaningful conclusions concerning the actor’s veracity.
Relying on the abstract evidence of a conviction runs afoul of an insight
we all share since our first exposure to the tales of Robin Hood: the
gross identification of an offense can mask vast differences in the meaning
of the underlying conduct and in its implications concerning the
actor’s character. “6 This contextual model is approximated in certain
cases and rules. “‘ It is, however, rejected under California law, both
under Castro and Spearman before it, which made the relevance of
prior convictions turn on an abstract inquiry concerning the indispensable
elements of the offense in general rather than upon the specific,
accidental, facts of the particular offense. ” 8
If one is drawn to the contextual model, one confronts the following
” The state in Castro made no suggestion that article I, § 28(f) be read to authorize
the use of prior convictions as evidence of the defendant’s general criminal propensity,
38 Cal. 3d at 314, 696 P.2d at 118, 211 Cal. Rptr. at 726, and the Castro plurality
expressed no such justification for admitting prior convictions. Id.
,41 See Ladd, Techniques and Theory of Character Evidence, 24 IOWA L. REV. 498,
4′ But see People v. Fries, 24 Cal. 3d 222, 235, 594 P.2d 19, 28, 155 Cal. Rptr.
194, 203 (1979) (Richardson, J., dissenting) (“Robin Hood aside, I never heard of an
” See, e.g., United States v. Papia, 560 F.2d 827, 847 (7th Cir. 1977); United
States v. Hayes, 553 F.2d 824 (2d Cir. 1977); People v. Sorge, 301 N.Y. 198, 93
N.E.2d 637 (1950).
141 See supra notes 41-42 and accompanying text.
— 18 U.C. Davis L. Rev. 717 1984-1985
University of California, Davis
dilemma. The proscription against inquiry into the underlying facts is
in part for the defendant’s benefit. But the effort to serve this interest
results in substituting the formal fact of conviction for the texture of the
underlying conduct, except insofar as the defendant elects to explain the
factual context. This option again presents the defendant with a
“Hobson’s choice.”‘ 49 An exhaustive inquiry into the detailed facts may
unduly emphasize collateral issues surrounding the prior conviction;
but if the defendant chooses not to disclose the facts surrounding it, the
jury is presented with only the stark fact of conviction, inviting speculation
to the defendant’s prejudice.
- Conclusion: The Absolute Ban of Prior Convictions for
Impeachment Purposes as a Fifth Model
The foregoing discussion suggests problems with the theoretical underpinnings
of the various models used for assessing the relevance of
prior conviction evidence, including those versions embodied in Castro,
in Spearman, and in the unlimited global model, which would admit
all felony convictions without exception. This is so even if one believes
that properly screened prior convictions in principle are capable of providing
important insight into the credibility of witness-defendants.
The case, however, for admitting any prior convictions against a
criminal defendant is poor. Contrary to usual assumptions, prior convictions
lack essential relevance, given the special posture of the testifying
defendant; and the inferential leap from past convictions to current
credibility is fraught with danger. Further, the more expansive the definition
of the scope of relevant convictions, the greater the danger. The
more the theory of relevance does not turn on some discrete element of
untruthfulness (as under the veracity model), the more its relevance
must depend on inferences about the defendant’s bad or antisocial tendencies.
This makes it nearly inevitable that the jury will draw inferences
from the defendant’s bad or antisocial character extending to her
primary conduct. Indeed, it seems that the principal value of convictions
lies precisely in the fact that they may provide at least as good
evidence of criminality as of credibility. The use of prior convictions as
criminal propensity evidence, forbidden in theory, is then received parading
as credibility evidence.
If one were writing on a clean slate, the best solution would be to
bar all prior convictions as impeachment evidence in the special context
,, People v. Rollo, 20 Cal. 3d 109, 120, 569 P.2d 771, 776, 141 Cal. Rptr. 177, 182
(1977); see supra note 62.
— 18 U.C. Davis L. Rev. 718 1984-1985
1985] Impeaching Defendants 719
of the witness-defendant. The slate, however, is not clean. Fortunately,
the power of trial courts to exercise the discretion called for by Evidence
Code section 352 provides ample protection, if the courts are permitted
to take account of all the ways in which prior conviction evidence
may be problematic and dangerous and if they are adequately
monitored in this effort by appellate review.
— 18 U.C. Davis L. Rev. 719 1984-1985