Prior Conviction Impeachment: 'People v. Patrick' -- Ameliorating the Risk of Unfair Prejudice

Abstract

The prospect of prior conviction impeachment of the criminal defendant if he testifies is universally recognized as an extremely significant event in the day to day workings of our criminal justice system. The prospect of the jury being advised that the accused has violated a serious law of society impacts many litigation decisions, none the least of which are plea bargaining and the decision itself as to whether the accused will in fact testify. All involved in the criminal justice system are fully aware that no matter the jury instruction to the contrary, ordinary citizens will draw the “bad man inference” — did it once, did it again; did it once, most likely did other crimes for which not punished; already has served time in jail and been labeled a criminal. On the other hand, in support of the use of prior convictions, it is asserted “that it would be misleading to permit the accused to appear as a witness of blameless life.” McCormick, Evidence §42 at 169 (5th ed.1999).Our criminal justice system in fact relies upon the reality of a bad man inference being drawn at every level — including the realization that without the prospect of prior conviction impeachment, more accused would go to trial adding to the criminal justice systems administrative burden, e.g., more courts, more judges, even more prisons, etc.Accepting admissibility of prior conviction to impeach except in highly unusual circumstances as a given, are there procedural variations available to ameliorate the risk of prejudice arising from the jury drawing the bad man inference? In federal courts and elsewhere the suggestion that the “mere fact” method for prior conviction as employed in Florida and a small handful of other states has fallen on deaf ears. Moreover, procedural rules dealing with motion in limine practice requiring the accused to testify to preserve error with respect to prior conviction impeachment, and waiver of error imposition associated with anticipatory disclosure by the accused prior to actual prior conviction impeachment by the prosecution, exacerbates rather than ameliorates the risk of the impermissible “bad man” inference being drawn by the jury.The Illinois Supreme Court has, like many other courts, over the years struggled with the question of prior conviction impeachment. For several years, Illinois, contrary to federal practice, while requiring the criminal defendant to testify to preserve error, has permitted alleged error to be preserved for appeal with respect to prior conviction impeachment when anticipatory disclosure of a prior conviction occurs by the defendant on direct examination if not before. In 2009, the Illinois Supreme Court ruled in People v. Patrick, 233 Ill.2d 62, 908 N.E.2d 1, 330 Ill.Dec. 149 (2009), that a trial court’s refusal to rule on a motion in limine on the admissibility of a defendant’s prior conviction when, as is almost always the case, the trial court was possessed of sufficient information to conduct a discretionary balancing test was an abuse of discretion and reversible error under the facts of the case.