Credibility Proxies: Sanitized Convictions

No discussion of credibility proxies would be complete without the sanitized conviction.  In the context of the strained efforts courts make to explain why certain crimes are related to credibility while others aren’t, it may seem odd that some jurisdictions require that impeachment be done with de-contextualized convictions.  After grappling behind closed doors with whether an underlying conviction is relevant to a witness’s truthfulness, courts in these jurisdictions may ultimately require that the jury learn only of the existence of the conviction and nothing about it’s substance.

Last month, New Jersey’s appellate division reversed a defendant’s conviction for aggravated assault and remanded for a new trial due to prosecutorial misconduct, State v. Rivera, 437 N.J.Super 434.  One of the problems, according to the court, was the fact that the prosecutor elicited the defendant’s prior conviction for resisting arrest with force in order to impeach his credibility with the jury.  New Jersey precedent holds that in case where a defendant’s prior conviction is similar to the offense charged, the prior conviction may be introduced but the jury should learn only degree of the crime and the date of the offense.  Any evidence of the specific prior crime will be excluded.  

In Rivera, the trial judge had ruled in camera that the defendant’s prior conviction for third-degree resisting arrest could be introduced to impeach his credibility, but that it must be sanitized (presumably because resisting arrest could be interpreted as a violent act and Rivera was on trial for assault – incidentally, NJ does not follow the theory that violence is not relevant to credibility).  The prosecutor, thus, was only permitted to elicit the fact that Rivera had a prior third degree conviction and the date of that conviction. 

The feckless prosecutor disregarded this ruling, asking Rivera if he had a prior conviction for resisting arrest with force.  According to the appellate court, the judge’s attempt to cure this leak of forbidden and possibly incorrect information (it wasn’t clear if the crime had involved force) with a jury instruction was inadequate.  This, along with two other instances of misconduct by the prosecutor, led to the reversal of the conviction.

In one sense, this doctrine of sanitized convictions make perfect sense.  There is a clear danger that a jury will draw a propensity inference about guilt rather than apply the information to its credibility determination if it learns that a defendant has a prior conviction similar to the charged conduct.  But, it also seems anomalous to introduce the fact of a prior conviction with no contextual information whatsoever in order to help the jury make a credibility determination.  If the premise is that all prior crimes are relevant to credibility to the same degree, then this sanitization procedure might make sense.  But I know of no jurisdiction that takes that approach.  Instead, all courts care whether the prior conviction was for a crime of violence, larceny, prostitution or perjury because it helps them assess the probative value of the evidence.  Sanitizing the information that gets to the jury, then, seems to deprive it of the very information that justifies the use of the conviction as a credibility proxy in the first place.

-JSK