California Evidence Code Section 787 states, “Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.”
California Evidence Code Section 788 states, “For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless:
(a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.
(b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.
(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.
(d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).”
The Legislature’s use of the word “may,” rather than “shall,” in Ev C § 788, leaves the trial court with discretion to exclude proof of prior felony convictions offered in impeachment. (Disapproving, to the extent that they are inconsistent with the instant opinion, People v. House (1970, Cal App 2d Dist) 12 Cal App 3d 756, 90 Cal Rptr 831, 1970 Cal App LEXIS 1666.
Among factors to be considered by the trial judge in exercising his discretion as to admission of a prior felony conviction for impeachment purposes, are its nearness or remoteness, its bearing on credibility, and the effect of a refusal by defendant to testify resulting from his fear of impeachment by the conviction. People v. Beagle (1972) 6 Cal 3d 441, 99 Cal Rptr 313, 492 P2d 1, 1972 Cal LEXIS 141.
CACI 211 states, “You have heard that a witness in this trial has been convicted of a felony. You were told about the conviction [only] to help you decide whether you should believe the witness. [You also may consider the evidence for the purpose of [specify].] You must not consider it for any other purpose.”
However, the court did hold that the trial court “may utilize such decisions to formulate guidelines for the judicial weighing of probative value against prejudicial effect under section 352.” Robbins v. Wong (1994) 27 Cal.App.4th 261, 273 [32 Cal.Rptr.2d 337].
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