Impeachment and Rehabilitation Evidence in Wisconsin - Prior Criminal Convictions

By John DiMotto

One of the most compelling types of evidence used to impeach the credibility of a witness is evidence of prior criminal convictions (or juvenile adjudications of delinquency). When a jury learns about a prior conviction/juvenile adjudication, although the accompanying jury instruction advises the jury that it should only be used in assessing the credibility of what the witness is saying, the temptation to apply the old adage "once a criminal always a criminal" is front and center. Rules exist to try to ensure the proper use of this type of evidence.

The use of prior criminal convictions/juvenile adjudications is governed by 906.09. It sets forth the general rule that for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or adjudicated delinquent is admissible. Furthermore, the party cross examining the witness is not concluded by the witness's answer if it is incorrect. However, there is an exclusion clause which indicates that such conviction/adjudication may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In other words, the trial judge is the gatekeeper with respect to what convictions/adjudications can be considered.

There is a presumption that a person who has been convicted of a crime/adjudicated delinquent may not be as truthful as someone who has never been convicted/adjudicated and, therefore, questioning in this area is relevant. Also, the number of convictions/juvenile adjudications is relevant because the law further presumes that a person who has been convicted/adjudicated multiple times is considerably less credible that someone with fewer convictions/adjudications. However, it should be noted that while the fact of conviction/adjudication is relevant and admissible, the fact that a person has never been convicted/adjudicated is not considered relevant and is not admissible. The theory is that everyone is expected to follow the law and be law abiding and in so doing a person does not gain or enhance his/her credibility. Furthermore, the fact that a person has no convictions/adjudications does not mean that he/she IS law abiding.

In terms of how the trial court approaches the issue of prior convictions/juvenile adjudications, before any question is asked of a witness regarding prior criminal convictions/juvenile adjudications, a hearing must be held outside the presence of the jury where the trial judge, as gatekeeper, determines which, if any convictions/adjudications may be used. Considerations such as passage of time, nature of prior convictions, involvement of dishonesty in the crimes or witness's rehabilitation since the convictions are taken into account before the trial judge rules on the issue.

Once the trial judge has made his/her decision then two questions may be asked of a witness. First, have you ever been convicted of a crime (or adjudicated delinquent)? Second, how many times? If the witness answers truthfully, and usually the witness does because the witness is present when the judge enters the ruling, that forecloses any further questioning. If the witness does not answer the two questions correctly, the witness may be asked questions regarding the specifics of the convictions to "refresh" the witness's recollection as to the correct answers.

There is another exception to when the specifics may be brought to the attention of the jury. If it is the defendant who is testifying, at his/her option, specifics may be elicited by the defendant's counsel. This may occur if the prior convictions are few in number and totally different in nature than the charge at hand. For example, if a defendant is on trial for a sexual assault and he has a prior conviction for disorderly conduct, his attorney may want to bring that fact out so the jury does not think the prior conviction is for a sexual assault.

While prior convictions and juvenile adjudications are admissible:

1) Arrests are not admissible.

2) Ordinance violations are not admissible.

3) Deferred Prosecution Agreements are not admissible.

4) Expunged convictions are not admissible.

When addressing the use of prior conviction/juvenile adjudication evidence, the is incumbent on the trial court to carefully address to what extent this evidence may be used and to ensure that the jury understands for what purpose it can be used and for what purposes it may not be used.