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THE COURT SHOULD NOT HAVE CONDITIONED ITS SANDOVAL RULING ON WHETHER DEFENSE COUNSEL CROSS-EXAMINES THE PEOPLE’S WITNESSES ABOUT THEIR CRIMINAL HISTORIES (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined the judge’s ruling that defendant can be cross-examined about prior convictions if the defense cross-examines the People’s witnesses on their criminal histories was improper:

A trial court may “make an advance ruling as to the use by the prosecutor of prior convictions or proof of the prior commission of specific criminal, vicious or immoral acts for the purpose of impeaching a defendant’s credibility” … . “[A] balance must here be struck between the probative worth of evidence of prior specific criminal, vicious or immoral acts on the issue of the defendant’s credibility on the one hand, and on the other the risk of unfair prejudice to the defendant, measured both by the impact of such evidence if it is admitted after his testimony and by the effect its probable introduction may have in discouraging him [or her] from taking the stand on his [or her] own behalf” and thereby denying the jury significant material evidence … . These considerations “simply do not apply to a witness who is not a defendant, and cross-examination of such a witness should therefore be permitted with respect to any immoral, vicious or criminal act committed by him [or her] which may reflect upon his [or her] character and show him [or her] to be unworthy of belief” … .

… Supreme Court failed to engage in the appropriate balancing between the probative worth of the convictions on the issue of the defendant’s credibility against the possible prejudice to the defendant … , and, instead, improperly conditioned its Sandoval ruling on whether defense counsel would impeach the People’s witnesses with their criminal histories. …  Whether the defendant impeaches the credibility of the People’s witnesses during cross-examination based upon those witnesses’ criminal histories, or whether the People’s witnesses testify, are not relevant factors to consider in making a Sandoval ruling … . People v Brannon, 2021 NY Slip Op 06184, Second Dept 11-10-21

 

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