Michael W. Tootooian
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Admissibility of Prior Convictions as Impeachment
in Illinois Civil Cases
By Robert M. Winter
Robbins, Salomon and Patt, Ltd.
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 (9th 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.
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.
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.
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.)
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.
of the Rule in Civil Cases:
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).
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’
O’Bryan v. Sandrock (3rd 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
(3rd 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 (5th 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., (5th 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.
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 (3rd 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
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 (1st 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 (1st 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 (3rd 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. (2nd 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 (1st Dist. 1981) 101 Ill.App.3d
823, failure to allow evidence of prior theft conviction of plaintiff
in slip and fall case warranted reversal.
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:
- 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.
- Whether there are
other witnesses who corroborate or contradict the convicted witness
(how important is the testimony and credibility of this witness).
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.
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Newsletter Committee Members / Contributors
Ronald E. Neroda
Jalyne R. Strong-Shaw
Michael W. Tootooian