When Defendants Testify

Basic to U.S. trial procedure is the principle that a defendant's past convictions, if any, may not be introduced to show that he is probably guilty because he was guilty in the past. Should a defendant choose to testify, however, the prosecutor is permitted to try to impugn his credibility. In most states, prior convictions may then be introduced on the theory that they cast needed light on whether his word can be trusted.

The line is a fine legal one, and it understandably tends to disappear for most jurors, who, try though they will, cannot consider the defendant's veracity in light of his convictions, and then ignore the convictions while considering his guilt. The pragmatic result for many defendants has been to pass up the chance to testify rather than risk having a previous criminal record emerge.

In a case that may set a pattern, the U.S. Court of Appeals for the District of Columbia has just laid down guidelines designed to reduce the risks assumed by a testifying defendant. In the first place, the court noted, the nature of the previous conviction is important. Eager prosecutors often try to drag in everything on the record. In the future, said the court, it might be well to restrict previous crimes mentioned to those "which reflect adversely on a man's honesty and integrity." Acts of violence, the opinion continued, do not seem to have much to do with truth-telling, while "acts of deceit, fraud, cheating and stealing" generally do.

The time of the prior conviction is also important. If it took place many years before and was followed "by a legally blameless life," it "should generally be excluded on the ground of remoteness." The court also felt that previous convictions on the same charge "should be admitted sparingly," with perhaps only one allowed. Finally, the court noted, even if the convictions are otherwise appropriate to impeach credibility, the trial judge may still bar them--if the defendant's testimony is so important that he should not be deterred from giving it by fear that his convictions will be offered against him. In difficult cases, said the court, perhaps the best thing to do would be to have a dry run of the testimony and cross-examination without a jury present.

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