Buchman v. Seidel

RAWLINGS, Justice

(concurring specially).

The record before us discloses plaintiff was, in 1965, convicted of forgery and placed on probation. This was a relatively recent conviction involving honesty and integrity. Furthermore, this past record was not revealed by defendant, being self-exposed by plaintiff during presentation of his testimony in chief.

' Under these circumstances I concur in the result but again deem some observations appropriate with regard to Division II of the majority opinion. See dissent, State v. Hardesty, 261 Iowa -, 153 N.W.2d 464, 469.

In Luck v. United States, 121 U.S.App.D. C. 151, 348 F.2d 763, defendant was convicted and on appeal argued, inter alia, introduction of evidence disclosing his prior felony conviction was error since it was obtained when he was a juvenile. Although *430the court agreed that conviction of a juvenile, tried as an adult, could be used to impeach his credibility, the position taken by the government that the prosecution is always entitled to use a conviction for that purpose was rejected. In so holding the court based its decision on this District of Columbia statute, (14 D.C. Code section 30S), which is typical of those in many jurisdictions, but clearly broader than section 622.17, Code of Iowa, 1966: “No person shall be incompetent to testify, in either civil or criminal proceedings, by reason of his having been convicted of crime, but such fact may be given in evidence to affect his credit as a witness, either upon the cross-examination of the witness or by evidence aliunde; and the party cross-examining him shall not be concluded by his answers as to such matters.”

With regard to this statute the court said, loe. cit., 348 F.2d 767-768: “Section 305 is not written in mandatory terms. It says, in effect, that the conviction ‘may,’ as opposed to ‘shall,’ be admitted; and we think the choice of words in this instance is significant. The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases ’ where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant’s story than by the defendant’s foregoing that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility.”

Although the court in Luck, supra, referred to some elements which should be employed as a guide by trial judges in the exercise of their discretion, a full explanation of those factors awaited future decision.

On appeal in Gordon v. United States, 127 U.S.App.D.C., 343, 383 F.2d 936, defendant contended trial court abused its discretion in allowing the government to impeach his credibility by showing prior convictions. In an opinion authored by then Circuit Justice, now Supreme Court Chief Justice, Warren E. Burger, the court affirmed defendant’s conviction on the premise he had failed to present the issue to the trial judge in the manner contemplated by Luck. However, some further observations with regard to the Luck decision were deemed necessary. In that direction Justice Burger first reiterated the basic rationale of the “Luck doctrine” and pointed out, “The impact of criminal convictions will often be damaging to an accused and it is admittedly difficult to restrict its impact, by cautionary instructions, to the issue of credibility.” These guidelines were then set forth for use by trial judges, in the exercise of discretion, regarding exclusion or admission in evidence of a prior conviction for purpose of impeachment: “In considering how the District Court is to exercise the discretionary power we granted, we must look to the legitimate purpose of impeachment which is, of course, not to show that the accused who takes the stand is a ‘bad’ person but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses. In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity. 'Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A ‘rule of thumb’ thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not; traffic violations, however serious, are in the same category. The nearness or remoteness of the prior conviction is also a factor of no small importance. Even one *431involving fraud or stealing, for example, if it occurred long before and has been followed by a legally blameless life, should generally be excluded on the ground of remoteness.

“A special and even more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that ‘if he did it before he probably did so this time.’ As a general guide, those convictions which are for the same crime should be admitted sparingly; one solution might well be that discretion be exercised to limit the impeachment by way of a similar crime to a single conviction and then only when the circumstances indicate strong reasons for disclosure, and where the conviction directly relates to veracity.

“Of course, there are many other factors that may be relevant in deciding whether or not to exclude prior convictions in a particular case. * * * One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. Even though a judge might find that the prior convictions are relevant to credibility and the risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant’s version of the case than to have the defendant remain silent out of fear of impeachment.” 383 F. 2d 936, 940-941.

Evans v. United States, 130 U.S.App.D.C. 114, 397 F.2d 675 was also authored by Chief Justice Burger. There the court further clarified the “Luck doctrine” by holding that the tests stated above are relevant only after a threshold burden of demonstrating the peculiar need for the defendant’s testimony has been met. In affirming defendant’s conviction, because he did not make any affirmative showing of why there was a special need for his testimony to the trial judge, Justice Burger pointed out: “The defense must show how and why this case calls for a discretionary ‘exemption’ from the impeachment permitted by statute. Nor, by the same token, will merely stating that it is important for the defendant to testify be sufficient to meet this burden.” 397 F.2d 675,679.

In developing the “Luck doctrine” the Circuit Court relied heavily on the Model Code of Evidence and the Uniform Rules of Evidence. Both the Model Code [A.L.I. Model Code of Evidence, rule 106, (1942)] and the Uniform Rules [Uniform Rules of Evidence, rule 21, 9A U.L.A. 607 (1965)] limit the use of prior convictions to impeach a defendant’s credibility in two ways; First, they allow impeachment of credibility only by convictions for crimes involving “dishonesty or false statement.” Second, both further limit the use of such convictions by providing that they may be introduced against an accused only if he first introduces evidence solely for the purpose of supporting his own credibility. In Luck the court also noted Professor McCormick’s suggestion that, “On balance it seems that to permit * * * one accused of crime to tell his story without incurring the overwhelming prejudice likely to ensue from disclosing past convictions, is a more just, humane and expedient solution * * McCormick, Treatise on Evidence, page 94.

Other cases disclosing adoption of a doctrine similar to Luck v. United States, supra, are United States v. Palumbo, (2 Cir.), 401 F.2d 270; United States v. Hildreth, (4 Cir.), 387 F.2d 328; United States v. Sternback, (7 Cir.), 402 F.2d 353; State v. Motley, 199 Kan. 335, 430 P.2d 264; and State v. Coca, 80 N.M. 95, 451 P.2d 999. See also Schaefer, The Suspect and Society, page 68, N.W. U. Press. 1967.

As aforesaid I concur in the result but respectfully submit this court should henceforth adhere to the principles set forth in Luck, supra, and other authorities cited above.