Underwood v. Strasser, 213

• Decision Date: 03 November 1970
• Docket Number: No. 213,213
• Citation: 48 Wis.2d 568,180 N.W.2d 631
• Parties: Allan UNDERWOOD et al., Respondents, v. Marvin J. STRASSER et al., Appellants, AMERICAN FAMILY MUTUAL INS. CO., Third-Party Defendant.
• Court: Wisconsin Supreme Court

Page 631

180 N.W.2d 631

48 Wis.2d 568

Allan UNDERWOOD et al., Respondents, v. Marvin J. STRASSER et al., Appellants AMERICAN FAMILY MUTUAL INS. CO., Third-Party Defendant.

No. 213.

Supreme Court of Wisconsin.

Nov. 3, 1970.

From the order awarding costs of $490.90 to plaintiffs upon mistrial, which order was entered of record on October 23, 1969, defendants appeal.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for appellants.

Murn, Ferr & Gumina, West Allis, for respondents.

ROBERT W. HANSEN, Justice.

The Wisconsin statute authorizes and limits the questioning of witnesses as to prior criminal convictions in these words:

'A person who has been convicted of a criminal offense is, notwithstanding, a competent witness, but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer.' ¹

This statutory provision applies to civil actions, as well as to criminal cases. No distinction between the two categories of cases is made in the statute. The section is in Ch. 885 under Title XLIII, 'Provisions Common to Actions and Proceedings in All Courts.' It was on an appeal in a civil action that this court upheld the statute against attack, specifically rejecting the suggestion, repeated on this appeal, that Rule 106 of the Model Rules of Evidence be followed in place of the statutorily stated rule. ²

It is then the law in this state, statutorily established, that on an issue of credibility, a witness who takes the stand may be questioned as to prior convictions of criminal offenses. Two questions may be asked: (1) Have you ever been convicted of a criminal offense?; and (2) How many times? ³ Given responsive and accurate responses to these two questions, no further questions may be asked. ⁴

It is only on the issue of credibility that the two questions as to fact and number of convictions may be asked. What makes this case unusual, almost puzzlingly so, is that the two questions were both asked before any conflict in the testimony of the witness or with the testimony of other witnesses put credibility at issue.

Here, on direct examination, the plaintiff was asked by his own attorney, 'Mr. Valona, were you ever convicted of a crime?' The plaintiff answered, 'Yes.' No objection was made to the question being asked. The second question as to the number of convictions was asked on cross-examination by defense counsel. In fact, it was the initial question asked on cross-examination. Objection was made, sustained and, following a conference of court and counsel in chambers, a mistrial was ordered.

A case could be made that both questions were prematurely asked, no issue as to credibility having arisen when each in turn was asked. So the question here must be whether a plaintiff's attorney, as a matter of trial strategy, can ask the first of the two statutorily permitted inquiries and thereafter bar the asking of the second question, at least unless or until an issue as to credibility has arisen. While the statute refers only to inquiries as to prior conviction being proved '* * * either by the record or by * * * cross-examination,' if there were no objection, it is clear that plaintiff could have asked both questions, one as to the fact of prior conviction, and the other as to the number of such convictions. That, given truthful answers, would have been the end of the road, and, viewed as a matter of trial tactics, introducing such admissions as to prior convictions on direct examination, rather than on cross-examination, might well appeal as having less jury impact than having it later become a proper question on cross-examination. However, this plaintiff's counsel did not do. He asked the first question only, and then objected to the second. He opened the door by asking the first question, and objected to it remaining ajar for the asking of the second. We would hold that counsel, having asked his client if he had ever been convicted of a crime, lost the right to object to opposing counsel subsequently asking on cross-examination how many times the client had been convicted. To hold otherwise, would clearly leave with the jury the impression that the witness had been convicted only once of a single offense. If the jurors were entitled to know the fact of prior conviction, they were also entitled to know the number of such prior convictions.

Not discussed in the briefs is the significance of this court's adoption of Rule 303 of the Model Code of Evidence ⁵ in a 1967 decision. ⁶ This decision gives to trial courts discretion to exclude even admissible evidence when such admission would 'create substantial danger of undue prejudice.' However, it is difficult to see how the hitchhiker question as to number of convictions would qualify as creating such danger in a situation where the objector already had placed into the record an answer to the first question as to the witness having been convicted 'of a crime.' Additionally, '* * * Rule 303 is implicit in its requirement that the judge 'find' that the probative value of otherwise admissible evidence is outweighed by risks that would result if the evidence is not excluded.' ⁷ There must be some evidence that Rule 303 discretion...