United States v. Garber

• Decision Date: 26 December 1972
• Docket Number: No. 71-3432. Summary Calendar.,71-3432. Summary Calendar.
• Citation: 471 F.2d 212
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack F. GARBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

471 F.2d 212 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Jack F. GARBER, Defendant-Appellant.

No. 71-3432. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

December 26, 1972.

Harry Lee Hudspeth, El Paso, Tex. (Court appointed), for defendant-appellant.

William S. Sessions, U. S. Atty., Ralph E. Harris, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Appellant Jack F. Garber was indicted under the Dyer Act for transporting in interstate commerce a stolen motor vehicle, knowing it to have been stolen. 18 U.S.C.A. § 2312. He was found guilty by a jury and was sentenced to five years in prison. He took the stand to testify as a witness in his own behalf, and the government introduced into evidence his prior Dyer Act convictions to impeach his credibility.

On appeal, Garber contends that the prosecuting attorney committed reversible error when he argued to the jury that Garber's prior convictions for the same crime showed a disposition to commit the offense presently charged. The government admits that the argument was improper, but contends that the point was waived by the failure of defendant's attorney to object and that, in any event, the error was "harmless." We think the argument constituted plain and reversible error.

One of the most difficult questions confronting a defendant who has a record of prior criminal convictions is whether to testify as a witness in his own behalf.¹ If he does testify, he does so as an ordinary witness, and evidence of prior convictions may be introduced to impeach his credibility. But, learning of the prior convictions, the jurors may have a natural tendency to let the prior criminal conduct lead them to conclusions beyond the scope of defendant's credibility, despite the Court's strict instructions to the contrary. If defendant does not testify, however, the jury will not learn of his criminal record, but it may be naturally inclined to infer from his silence an admission that he cannot truthfully deny or explain the evidence connecting him to the crime.² Thus, defendant becomes trapped between the Scylla of actually telling the jury of his criminal past, to his detriment, and the Charybdis of failing to exculpate himself from this particular crime.

Two conflicting rules of evidence are responsible for this situation. The first is that a prior criminal conviction is irrelevant to prove whether or not defendant is guilty of the crime charged. Such evidence is therefore initially inadmissible. The other rule is that the credibility of any witness may be impeached by evidence of his prior criminal convictions. The evidence is therefore admissible, after the witness testifies. The conflict between these two rules thrusts the defendant onto the horns of a dilemma.

The danger arising from evidence of prior criminal convictions is that the jury may be unable to restrict the use of this evidence to the proper purpose. Instead of limiting its probative value solely to a determination of defendant's credibility as a witness, the jury may use the prior criminal conduct to draw either or both of two legally impermissible inferences: (1) that the defendant should be convicted because he has committed a previous crime and, therefore, probably committed the crime presently charged; or (2) that any doubts should be resolved against defendant because the evidence of prior criminal behavior demonstrates that he is a "bad man."

The practice of impeaching the credibility of a witness with prior conviction evidence has evolved from the common law theory that a person convicted of an "infamous crime," such as treason, felonies, and acts of falsehood, was incompetent as a witness.³ The strict doctrine of incompetency was based on the theory that one convicted of an "infamous crime" was a person of such dubious character that he was unworthy of belief and should not be permitted to testify at all.⁴ While this theory of incompetency has not persisted in Anglo-American law, the principle of presumed untrustworthiness associated with prior convictions has survived.

The present rationale for admitting prior conviction evidence for impeachment purposes is that the jury should be informed about the character of a witness who asks the jury to believe his testimony. The record of prior convictions is considered indicative of the defendant's criminal nature which, in turn, suggests a propensity to falsify his testimony: "the reason for disbelieving the witness is his supposed readiness to lie inferred from his general readiness to do evil which is predicated upon his former conviction of a crime."⁵

Although firmly entrenched in criminal justice procedures,⁶ the admission of prior conviction evidence to impeach the defendant's credibility has been persistently criticized in recent years.⁷ These criticisms fall into essentially two categories.

First, some critics argue that the theory underlying the use of prior conviction evidence to impeach credibility is often too tenuous to withstand a relevancy attack. As Chief Justice Burger pointed out while on the Court of Appeals for the District of Columbia,

"In common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man\'s honesty and integrity. Acts of violence, on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity."⁸

Thus, under this view, not all crimes are relevant to the question of veracity.

Second, other critics argue that the criminal justice system expects too much of a juror when it asks him to distinguish between impeaching evidence and substantive evidence. Although prior conviction evidence should be used only for evaluating the defendant's credibility, available empirical studies seem to indicate that jurors may often be unable to divorce completely this evidence from the material issues.⁹ The resulting mental confusion may lead the jury to consider the prior conviction evidence improperly, either as conclusive of defendant's general criminal tendencies or as indicative of guilt in the particular circumstances on trial. Moreover, the actual effect of the standard limiting instruction, by which the Court instructs the jury to limit its consideration of the prior conviction evidence to credibility purposes only, has long been viewed with skepticism: "Thus, with a wave of the evidentiary wand, what previously was too prejudicial to be heard by the jury becomes reliable, valid evidence."¹⁰ Hence a growing number of judges and commentators articulate a concern for the probative value of prior conviction evidence, especially when juxtaposed against its prejudicial effects on the jury. The evidence may not always reflect directly upon credibility, and the jury may not always have the mental discipline to consider it only for impeachment purposes.

These comments are not made for the purpose of criticizing or weakening the long-established rule in this Circuit that, when a defendant takes the witness stand to testify in his own defense, he puts his character in issue and the prosecution may attempt to impeach his credibility by presenting evidence of prior convictions of either felonies or crimes involving moral turpitude.¹¹ Regardless of any criticism, the use of prior conviction evidence to impeach credibility is generally accepted as fair and proper. But the preceding discussion points up the fact that it is impermissible for the jury to use the prior conviction evidence for the purpose of considering either defendant's general bad character or his disposition to commit crimes.¹² The general rule against using prior conviction evidence as substantive evidence of guilt is as firmly entrenched as is the rule of admissibility for impeachment purposes.¹³

The critical balance between the permissible and impermissible uses of the prior conviction evidence, and the mental discipline required of the jury to restrict the use of this evidence require that the Court, counsel, and all persons appearing before the jury exercise the same discipline required of the jurors. A prophylactic atmosphere must permeate the trial if this rule of evidence is to be properly applied. The failure to maintain this atmosphere in Garber's trial requires us to decide that the error here was so fundamental as to survive the failure of counsel to object, an error which cannot be considered harmless.

Defendant Garber admitted under cross-examination that he had been convicted twice previously of Dyer Act violations, the same crime for which he was presently being tried. The fact that the previous crimes were the same or similar to the one presently charged makes no difference. The credibility of a Dyer Act defendant may be impeached with evidence of a prior Dyer Act conviction.¹⁴

In his rebuttal summation to the jury, the prosecutor twice argued that the evidence of the prior convictions showed Garber's propensity to commit this particular crime. Here was a trained attorney, an officer of the Court, a representative of the United States Government, encouraging the jury to consider this evidence for a prohibited purpose, a purpose for which it would be clearly inadmissible:

"Now, what is the interest of Mr. Garber? A man who was convicted of the same offense in 1968, a man who was convicted of the same offense in 1959, a man who admittedly, and according to his own attorney, is qualified to sell stolen cars in Mexico, and who stands before you now indicted for the same offense. . . .

Now, he is not on trial — he is not on trial for these previous offenses, but you should consider that evidence when you . . . consider whether or not this Defendant could commit an act like this. You go back, you go back to 1959, you go back to 1968; he has

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