Denying defendants the benefit of a reasonable doubt: Federal Rule of Evidence 609 and past sex crime convictions.

• Author: Rickert, Julia T.

1. INTRODUCTION

   Late one cold night in Chicago, a homeless man came upon an unlocked car parked on the street. He decided he would sleep in it. Early the following morning, he awoke just as a police cruiser pulled parallel to the car. He was arrested and later charged with burglary. Because of his criminal history, the man faced six to thirty years if convicted. The prosecutor offered him eight years in exchange for a guilty plea.

   The crime of burglary, a Class 2 felony in Illinois, is committed when one "knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft." (1) The requisite intent to commit a felony or theft can be inferred from the bare circumstance of having entered without authority. (2) This inference can of course be rebutted.

   In this case, the defendant had not disturbed any of the valuables in the car. The police had been called by the car's owner, who reported the presence of someone in his vehicle, but did not specify whether the person was awake or asleep. The police report did not comment on whether the homeless man appeared to have just awoken, but it did indicate that sunglasses were found in the homeless man's pocket. The vehicle owner told the police that the sunglasses looked familiar and may have been left in his car by a friend. The trespasser, however, claimed the sunglasses were his own. What no one disputed was that the car contained items of value that had not been disturbed, such as a cellular phone, a stereo, and compact discs.

   The known facts and the defendant's convincing explanation of his motive for entering the car supported an argument that he was merely guilty of criminal trespass to a vehicle, a Class A misdemeanor under Illinois law. (3) The prosecutor was devoted to the felony charge, however, and so the defendant would need to testify at trial to rebut the assumption that he intended to commit a felony or theft within the vehicle he had entered. Testifying would be the only way for him to introduce evidence of his state of mind and the only way to knock out the intent element required under the burglary statute. Put simply, the whole case depended on his testimony.

   The defense attorney on the case described it as "eminently triable." There was only one potential hitch: would the prosecution be allowed to introduce the defendant's prior convictions to call into question his character for truthfulness? The defendant had previously been convicted of two counts of aggravated sexual assault.

   If the jurors were to disbelieve the defendant's testimony, they could convict him of the felony rather than the misdemeanor. While no one likes the idea of a homeless man sleeping in his or her car, this particular homeless man--a convicted sex offender--was just the sort of person that a jury might be inclined to keep off the streets for as long as possible by finding him guilty of a felony rather than a misdemeanor. A lot--maybe everything--was riding on whether his prior convictions would be admitted to impeach his credibility.

   Sexual assault is not among those crimes traditionally thought to bear directly on truthfulness. Past crimes like perjury, forgery, and fraud, which in most jurisdictions are automatically admissible to impeach witness credibility, more immediately allow us to judge a person's propensity to lie. (4) Nonetheless, under Illinois law, any type of felony can be admitted to impeach witness credibility, so long as the probative value of the evidence outweighs its prejudicial effect. (5)

   Common sense suggests that the probative value of admitting this homeless man's conviction would be vastly outweighed by the prejudicial effect of allowing the jury to hear about his past sex crime, because people tend to despise sex offenders. Yet judges have a significantly different understanding of the level of prejudice sex crime convictions inspire: they will admit these convictions as evidence in non-sex crime trials to impeach the defendant's credibility as a witness. (6)

   Understanding this dynamic, the prosecutor in the homeless man's case offered him seven years instead of eight and made clear that this offer would expire quickly. His attorney explained to him that his past convictions would likely be admitted if he chose to go to trial and testify. Upon learning this, the risk-averse client decided to take the plea bargain: seven years in state prison for sleeping in someone else's car. (7)

   This result reveals significant system distortion. The prosecutor was given inordinate leverage in the plea negotiation, and the defendant was unduly discouraged from explaining his actions to a jury. He received a lengthy sentence for a minor offense. Taxpayers will foot the bill for his incarceration. This distortion is caused by the ability of prosecutors to present past sex crime convictions for impeachment at trial. In this Comment, I argue that such evidence is almost always more prejudicial than probative of credibility and should be excluded for that reason.

   The vast majority of jurisdictions in the United States allow a trial witness's credibility to be impeached with evidence of a prior felony conviction, even if it is a sex offense conviction. (8) This past crime evidence is admitted only to show that the defendant, who has chosen to testify, may lack credibility (9)--not to show that the defendant has some tendency to commit crimes in general or that he is a bad, dangerous person. (10) Juries are given a limiting instruction that is supposed to prevent improper use of the evidence, but courts and legislatures acknowledge that despite limiting instructions, past crime evidence can illegitimately prejudice a jury against a defendant. (11) For this reason, judges are required to consider the prejudicial effect of past crimes evidence before admitting it.

   Judges regularly fail to recognize the exceptionally prejudicial effect of defendants' prior sex crime convictions. (12) This means that when an individual charged with a non-sexual offense wants to testify at trial but knows that he may have his credibility impeached by evidence of a prior sex crime conviction, he has one of three choices: he may accept a plea bargain regardless of actual guilt; he may go to trial but decline to testify, potentially undermining his defense; or he can testify and take his chances with the jury. A man on trial for tax evasion could find himself explaining his remorse for a rape that he was convicted of eight years before, rather than simply explaining to the jury that he had followed his accountant's instructions when he filed his tax return and was unaware of the error on that form. This is a problem because the prejudicial effect of a sex crime conviction will nearly always outweigh the probative value of that evidence as to credibility, making an acquittal based on valid reasonable doubt much less likely. The fact is, known or alleged sex offenders (13) are the most despised group of criminals in this country. (14) Citizens are terrified of them and our legal system sets them apart from other criminals, subjecting them to special restrictions and punishments. (15)

   Support for my claim that past sex crime convictions are always or nearly always more prejudicial than probative of witness credibility comes from diverse sources. But all of this support relates to our society's profound aversion to sex offenders or the unique handling of these offenders by our legal system. (16) In this Comment, rather than denouncing the fact that sex offenders are singled out, I propose further exceptional treatment of them: they should be given special protection when on trial for subsequent non-sexual offenses so that jurors do not convict them for the wrong reasons. This Comment proceeds in four Parts. Part II provides background information on the use of prior convictions to impeach credibility and on the current practice with respect to prior sex crime convictions. Part III discusses why sex crimes are unique, their slight-at-best probative value, and the overwhelming evidence that they incite great prejudice. The important question is whether these social views of sex offenders are imported into the jury box. Part IV suggests that they are, and that juries are helpless to make decisions without being influenced by these biases. This creates the need for special treatment of past sex crimes evidence. Part V offers potential legislative and judicial solutions to the problem identified.

2. BACKGROUND: ADMITTING PRIOR CONVICTIONS IN STATE AND FEDERAL COURT

   At common law, defendants were barred from testifying at their own trials, because it was thought that the intensity of a defendant's interest in the outcome of the trial rendered his or her testimony unreliable. (17) In many cases, this prohibition served to cripple a defendant's ability to rebut the prosecution's allegations. (18) Fortunately, a realization that the common law was unjust on this point took hold after the Civil War, and every state but Georgia passed a statute allowing defendants to take the stand. (19) Congress also passed such a statute in 1878 providing that "[i]n trial of all persons charged with the commission of offenses against the United States ... the person charged shall, at his own request, be a competent witness." (20) Finally, in 1987, the Supreme Court found that it was not only unfair to bar defendants from testifying, but that it also violated the Constitution.21

   Another group barred at common law from taking the stand was made up of those who had committed "infamous crimes," which included treason, any felony, and crimen falsi.22 That last category is slippery. The Illinois Supreme Court explained in 1901 :

   Crimen falsi, according to the better opinion, does not include all offenses which involve a charge of untruthfulness, but...