Antioch Law Journal


James W. Betro


The use of prior convictions to impeach the credibility of a criminal defendant-witness is generally accepted in most American jurisdictions.'Such evidence is allowed in order to present the jury with the general character of a witness so that they may be better able to decide as to his or her tendency to lie on the witness stand.2 The rationale behind this rule is based on the theory that a witness who has been previously convicted of a crime may be less likely to tell the truth than someone who has never been convicted.3 Unfortunately, when a criminal defendant takes the stand, a jury is unable to confine the use of this evidence to its legitimate purpose-impeachment, and instead tends to use it as evidence of the defendant's present guilt.4 The fear of this impermissible use is so great that trial judges immediately give "curative instructions" to the jury informing them that they are not to use the prior convictions as evidence of the defendant's guilt. As will be discussed, these curative instructions have virtually no effect whatsoever, and the jury continues to use the prior conviction evidence as a factor in finding present guilt.