Superior Court of Pennsylvania Finds Prosecutor Can Use Underlying Facts to Rehabilitate a Witness Who Has Been Impeached With a Prior Conviction

Pennsylvania Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement.

Like some other states, Pennsylvania only allows for impeachment of a witness through “the name, time, and place of the crime and the punishment received.” In other words, imagine that a witness for the prosecution had a conviction for embezzlement. On cross-examination, defense counsel could ask the witness, “Isn’t it true that you were convicted of embezzlement from your job at Staples in Philadelphia in 2013 and were given a two year sentence?” Defense counsel, however, could not ask the witness about the details of the embezzlement, i.e., how/why the witness embezzled the money.

But what if the party that called the witness, in this case the prosecution, wanted to delve into the details of the conviction on re-direct examination in an attempt to downplay the severity of the crime? This was the question of first impression addressed by the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Creary, 2018 WL 6694915 (Pa.Super. 2018).

In Creary, defense counsel impeached a witness for the prosecution by establishing that he had a prior conviction for theft of services. Thereafter, on re-direct examination, in response to a question by the prosecutor, the witness “explained that this conviction occurred after he used his transpass to get both him and another individual onto a bus.” Ostensibly, the thinking of the prosecutor/witness was that this explanation made the crime seem less severe than the name of the crime alone. 

In addressing the defendant’s ensuing appeal, the Superior Court of Pennsylvania observed that

Whether underlying facts may be used to rehabilitate a witness whose credibility has been attacked with a prior crimen falsi conviction appears to be an issue of first impression in Pennsylvania appellate courts.

The court then noted that there was a split of authority in other courts.

Some courts conclude that the evidence regarding the prior conviction must end with the fact of the conviction, and preclude any discussion of extenuating circumstances. These courts reason that the questions regarding the underlying facts of the prior conviction are collateral to the issues in the case and “the opponent of the witness would normally not be in a position to contradict the explanation.”…

Other courts, however, find that the facts underlying the crime are relevant and admissible where a “witness attempts to rehabilitate himself by explaining the circumstances” of the conviction….These courts have reasoned that permitting a brief explanation for the conviction will “seldom be more confusing or time-consuming” than admitting proof of the conviction and a “jury is not likely to give undue weight to an ex-convict’s uncorroborated assertion of innocence or of extenuating circumstances.”

Ultimately, the court

side[d] with the decisions that leave the determination of whether a party may rehabilitate a witness with the facts underlying a crimen falsi conviction that was used to impeach the witness to the discretion of the trial court. They are both more in line with Pennsylvania precedents and more persuasive.

I agree with the court’s conclusion but think that the same discretion should be given to Pennsylvania judges to allow cross-examination into the details of prior convictions. Many courts already allow this, but I don’t see the logic of sometimes allowing a witness to minimize his prior conviction on redirect while not also sometimes allowing opposing counsel to delve into the details of prior convictions of cross-examination when those details have strong bearing on the veracity of the witness.

-CM