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Impeachment — Prior Convictions, § 906.09

State v. Gary M.B., 2003 WI App 72, affirmed2004 WI 33
For Gary M.B.: T. Christopher Kelly


¶24. Wisconsin Stat. § 906.09 permits the admission of prior convictions for impeachment purposes. (See text of statute at ¶9.) The statute reflects the presumption that “a person who has been convicted of a crime is less likely to be a truthful witness than a person who has not been convicted.” State v. Kruzycki, 192 Wis. 2d 509, 524, 531 N.W.2d 429 (Ct. App. 1995). The decision whether to admit prior conviction evidence for impeachment purposes under § 906.09 lies within the trial court’s discretion. Id. at 525. We will uphold a trial court’s discretionary decision if it correctly applied accepted legal standards to the facts of record and used a rational process to reach a reasonable conclusion, putting aside “whether we would have made the same ruling.” Id.

¶25. The trial court allowed all five of Gary’s convictions to be admitted based solely on its understanding that there is “a presumption in the statute … [that] … allows for prior convictions to be brought in because [they] do[] say something about the person’s credibility.” …

¶26. Wisconsin Stat. § 906.09 does not end with the “general rule,” however. Subsection (2) requires that a court also consider whether conviction evidence should be excluded because “its probative value is substantially outweighed by the danger of unfair prejudice.” …

¶¶27. Because the trial court did not weigh the probative value of the three oldest convictions against the danger of unfair prejudice after Gary objected to their admission, we conclude that it did not engage in a proper exercise of discretion. See, e.g., State v. Smith, 203 Wis. 2d 288, 295-96, 553 N.W.2d 824 (Ct. App. 1996). Had it done so, the court might have concluded that Gary’s three twenty-five-year-old convictions for relatively minor offenses were not sufficiently probative of his credibility to merit mention at trial. Although we may independently review the record to determine whether the proper legal standard applied to the facts of record support the trial court’s ruling, we decline to do so here. Because there were no evidentiary proceedings (and only very brief argument) on the issue in the trial court, the record provides no basis for us to conclude that, had the court applied the correct legal standard, it would have reached the same result.

The supreme court’s affirmance doesn’t generate a majority of votes in favor of any distinct holding that could be seen as a reversal of the quoted holding — the split is: 3 (plurality: all convictions are relevant to truthfulness) – 1 (concurrence: any error was harmless) – 3 (dissents: favoring reversible error). An argument may be made that the court of appeals’ holding therefore remains viable. But an alternative possibility is presented. Where no explicit majority exists, the holding is located at the narrowest point(s) of agreement between concurrence and lead opinion. See Lounge Management v. Town of Trenton, 219 Wis.2d 13, 21-22 13, 580 N.W.2d 156 (1998) (“when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court’s ultimate holding”). If you compare the lead opinion’s seeming bemusement at the idea that somehow 5 priors was unfairly prejudicial when 2 concededly weren’t (¶32) with the concurrence’s apparent belief that multiple priors don’t create additional prejudice, then the holding might be something like: when one prior is correctly admitted into evidence, additional priors simply don’t matter (not, at least, when there’s been a limiting instruction, as in this case).

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