Admissibility of Prior Convictions as Impeachment
in Illinois Civil Cases

By Robert M. Winter

Robbins, Salomon and Patt, Ltd.

Background:

At one time at common law, a person who had been convicted of a crime was disqualified from testifying in court. Cleary and Graham’s Handbook of Illinois Evidence, §601.7 (9^th Ed.). Once it was decided that witnesses with prior convictions would be permitted to testify, the issue arose as to whether their prior convictions were relevant and material, i.e. admissible. In 1971, the Illinois Supreme Court held that Rule 609 of the Federal Rules of Evidence, which sets forth the standard for admissibility of a conviction, should be followed in Illinois criminal cases. People v. Montgomery (1971) 47 Ill.2d 510, 268 N.E.2d 695. Six years later, the Illinois Supreme Court held that the Montgomery standard was also applicable in civil proceedings; Knowles v. Panapoulos (1977) 66 Ill.2d 585, 590, 363 N.E.2d 805, 808. As one might expect, there are far more previously convicted persons testifying in criminal cases as witnesses and defendants than there are in civil cases. As a result, there have been many criminal cases in which the appellate court has addressed the issue of the admissibility of prior convictions but relatively few civil cases.

Working Rule:

The general rule that many practicing civil trial lawyers use is: “Crimes involving dishonesty or felonies committed within the past ten years are admissible to impeach the credibility of the witness.” While this is a pretty good starting point, it is not completely accurate and more importantly does not fully answer the admissibility question.

First, the witness’ crime of dishonesty or felony need not have occurred within the ten years preceding the date of the testimony of the witness. The ten years is actually calculated from the date of the conviction or the date of release from confinement whichever is later. So you need to ask the witness whether he did any “time” and if so, when was he released.

Second, even assuming you have a witness that was convicted (or released from confinement) for a crime involving dishonesty or a felony within ten years prior to the time of trial, there is still one more significant hurdle that must be overcome before the trier of fact can learn of the witness’ prior conviction. (As a practical matter, in a bench trial, the judge will certainly learn of the fact of the conviction, regardless of its admissibility.) That hurdle is an issue which will likely be confronted in the form of a motion in limine. The issue that will be presented to the court is whether the probative value of the evidence of the conviction is substantially outweighed by the danger of unfair prejudice. If the danger of unfair prejudice far outweighs the probative value of the conviction, the conviction will be inadmissible regardless of whether it is a felony/crime of dishonesty within the past ten years. (See FRE 609 and the Illinois civil cases cited hereinafter.)

There are numerous criminal cases that discuss the court’s balancing test but many of the factors discussed in criminal cases are not applicable to civil cases (e.g. whether the prior conviction was a crime similar to the current charge). As the discretionary decision of the court to admit or exclude a prior conviction is determined by the facts of the individual case, criminal cases are not particularly enlightening in civil cases.

Application of the Rule in Civil Cases:

Turning to the reasoning applied in civil cases, we start with a case not from our jurisdiction that is often cited in Illinois cases. “. . . When it is proved that a witness has been convicted of a crime, the ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show.” Justice Oliver Wendell Holmes, Gertz v. Fitchburg R.R. Co., 137 Mass. 77 (1884).

There is a recurring theme in the Illinois civil cases in which the courts have ruled that a prior conviction should not be admitted to impeach a witness because the prejudice far outweighs the probative value; which is: the nature of the crime. If the witness’ prior conviction is for a drug related offense, it is highly unlikely that a court will allow that conviction to be used to impeach a witness’ credibility.

In O’Bryan v. Sandrock (3^rd Dist. 1995) 276 Ill.App.3d 194, the plaintiff in a motor vehicle accident case was previously convicted of possession of cocaine. The Appellate Court reversed the trial court’s admission of the conviction. In Housh v. Bowers (3^rd Dist. 1995) 271 Ill.App.3d 1004, another plaintiff in another motor vehicle accident had a prior conviction for possession of heroin. The Appellate Court held that the trial court abused its discretion in admitting the conviction. In Deerhake v. DuQuoin State Fair (5^th Dist. 1989) 185 Ill.App.3d 374, a decedent-plaintiff who had been a spectator at a lawful drag race, had previously been convicted of the sale of a controlled substance. The trial court properly excluded evidence of the conviction. In Baldwin v. Huffman Towing Co., (5^th Dist. 1977) 51 Ill.App.3d 861, the plaintiff in a motor vehicle accident had been previously convicted for the possession of heroin. The trial court’s refusal to admit this evidence was upheld by the appellate court, noting that “many people believe that once a user or addict always a user or addict” and that “narcotics addicts are notorious liars.” Citing People v. Lewis, 25 Ill.2d 396.

The only non-drug related conviction that was held inadmissible in a civil case because its prejudicial effect far outweighs its probative value is Ashby v. Price (3^rd Dist. 1983) 112 Ill.App.3d 114. In that case, a plaintiff in a motor vehicle accident had previously been convicted of possession of stolen merchandise and theft. Even though these types of crimes seem to go directly to the issue of credibility, the trial court excluded this evidence and the appellate court upheld the ruling because “the facts concerning the accident are largely uncontradicted” and there was “corroboration for lost earnings and medical bills incurred.” The court apparently concluded that the likely result of the introduction of the prior conviction would be to prejudice the plaintiff in the eyes of the jury - not to question his credibility.

In all other civil cases involving non-drug related convictions where there was an analysis concerning whether the prejudicial effect of the conviction would substantially outweigh the probative value regarding the witness’ credibility, the courts have held the prior conviction admissible. See: Stokes v. City of Chicago (1^st Dist. 2002) 333 Ill.App.3d 272, court properly admitted evidence of prior conviction of burglary of plaintiff pedestrian in a slip and fall case; Torres v. Irving Press (1^st Dist. 1999) 303 Ill.App.3d 151, failure to admit previous conviction of misdemeanor theft by a defense witness to a motor vehicle accident warranted reversal; Holmes v. Anguiano (3^rd Dist. 1988) 174 Ill.App.3d 1081, failure to admit evidence of prior conviction of defendant of attempted robbery in bicycle-automobile accident warranted reversal; Taylor v. Village of Commons Plaza Inc. (2^nd Dist. 1987) 164 Ill.App.3d 460, court properly admitted prior convictions of theft, burglary and aggravated battery by “intoxicated person” in dram shop case; and Minor v. City of Chicago (1^st Dist. 1981) 101 Ill.App.3d 823, failure to allow evidence of prior theft conviction of plaintiff in slip and fall case warranted reversal.

Closing Suggestions:

If you find that you have a witness that has been convicted of a crime of dishonesty or felony and the conviction or release from confinement has occurred within the past ten years, you should also ascertain:

1. The specific crime of which the witness was convicted (whether there is any extraordinary stigma associated with the crime itself); if it’s a drug conviction, it’s probably not going to be admitted.

2. Whether there are other witnesses who corroborate or contradict the convicted witness (how important is the testimony and credibility of this witness).

Lastly, remember that the Montgomery balancing test requires the trial court to use its discretion in determining whether the prejudicial effect of the evidence of the conviction substantially outweighs the probative value of the evidence as it relates to the witness’ credibility. This means that the party opposing the use of the conviction for impeachment purposes has to persuade the court that the prejudicial effect far outweighs the probative value.