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Univ. of South Carolina School of Law

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Saturday, October 2, 2010

Liar, Liar: Supreme Court Of Delaware Finds Witness With Prior Convictions For Crimes Of Dishonesty Was Properly Allowed To Testify

A defendant is on trial for one count each of second degree assault and possession of a deadly weapon during the commission of a felony. A potential witness for the prosecution has several prior convictions for crimes of dishonesty or false statement. Should that witness be allowed to testify against the defendant. As the recent opinion of the Supreme Court of Delaware in Branch v. State, 2010 WL 3756812 (Del.Supr. 2010), makes clear, the answer is "yes." In days past, however, this wasn't always the case.

In Branch, the facts were as stated above, with John Branch being convicted of the crimes charged after the trial court received the testimony of Michele Petrucci. After he was convicted, Branch appealed, claiming, inter alia, that "the trial judge erred in allowing Michele Petrucci to testify at all in light of her prior convictions for acts of dishonesty." The Supreme Court of Delaware easily rejected this argument, finding that 

Despite Branch's contention,...there is no rule in Delaware that prohibits a person convicted of crimes of dishonesty from testifying as a witness at trial. Instead, the witness' testimony may be impeached by such prior acts of dishonesty, and the Superior Court permitted defense counsel to cross-examine Petrucci about her prior convictions in this case. These prior convictions went to the weight of Petrucci's testimony, not its admissibility, and the weight to be accorded her testimony in light of her prior convictions was a matter for the jury to decide.

This is indeed the way that courts treat witnesses with prior convictions for crimes of dishonesty or false statement, but this wasn't always the case. Instead, under the common law, courts applied a patchwork of rules deeming certain groups of individuals incompetent to testify at trial, including:  felons (and those convicted of crimes of dishonesty of false statement) under the doctrine of infamy; spouses under the doctrine of coverture; and atheists on the grounds of irreligion.  These rules were meant to ensure that juries would base their verdicts on truthful evidence and to protect the souls of those who might otherwise be tempted to commit the mortal sin of perjury.

Those rules, however, eventually fell by the wayside, with courts finding it better to allow most witnesses to testify, subject to impeachment. As Federal Rule of Evidence 601 and most state counterparts (such as Delaware Rule of Evidence 601) now provide in relevant part: "Every person is competent to be a witness except as otherwise provided in these rules." And, as the Advisory Committee's Note to Rule 601 makes clear,

This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this Article. Included among the grounds thus abolished are religious belief, conviction of crime, and connection with the litigation as a party or interested person or spouse of a party or interested person.



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