dissenting.
I respectfully dissent. It seems to me that when the prosecution moves to keep out evidence of crime committed by a witness and the defendant prevails upon the trial judge to permit such evidence to be presented to the jury, then the defendant is not in a logical or legal posture to complain that the facts of the crime presented includes evidence of bad conduct by the defendant.
The theory of the presentation of such evidence is an attack on the credibility of the witness. The fact that the witness has committed a crime and has been promised immunity or leniency by the government in return for his testimony is obviously proper for jury consideration in assessing the witness’s credibility. Nevertheless, the facts of the crime, once the evidence has been deemed admissible, are also of probative value in determining what the witness “received” for his testimony. And here the defendant has to make a decision: to take the position of this defendant and insist on the introduction of the “other crime” evidence, or forego that right and pleasure and keep his own name out of “other crime” evidence. I do not consider that telling the whole truth — as opposed to that portion of the truth that the defendant wants the jury to hear — can be reversible error when it is the defendant who seeks the introduction of the matter in the first place. Moreover, assuming the jurors were able to follow the court’s instructions iii other respects, I have no question about their ability to follow the cautionary instruction in this case as to the consideration to be given this particular piece of evidence.
And finally, while admitting the vast experience of my Brother Grant in trial matters, to say that a jury was “swayed by” a particular piece of evidence is too far reaching for me. To further suggest that “this court has grave doubts as to whether Boroni would have been convicted [without the evidence complained of]” is a statement from which I wish to clearly disassociate myself. If I entertain grave doubts on what a jury might or might not do with a particular set of facts or on presentation of particular pieces of evidence, I try not to let the fact show — and never would I articulate such a doubt. I would affirm.