OUJI-CR 9-23
EVIDENCE - IMPEACHMENT OF A
DEFENDANT BY FORMER CONVICTION
Evidence has been presented that the defendant has heretofore been convicted of (another offense)/(other offenses) distinct from that charged in the information. This evidence is called impeachment evidence, and it is offered to show that the defendant's testimony is not believable or truthful. If you find that (this conviction)/(these convictions) occurred, you may consider this impeachment evidence in determining what weight and credit to give the credibility of the defendant. You may not consider this impeachment evidence as proof of innocence or guilt. You may consider this impeachment evidence only to the extent that you determine it affects the believability of the defendant, if at all. A person may not be convicted of the commission of one offense by any proof tending to show that he/she may have committed another offense.
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Statutory Authority: 12 O.S. 1991, § 2609.
Notes on Use
The trial court should be especially careful when giving more than one limiting instruction to avoid inconsistencies between them. See Lewis v. State, 1998 OK CR 24 ¶ 22, 970 P.2d 1158, 1168 (limiting instructions on other crimes evidence and the basis of opinion testimony were confusing and contradictory when given together because the only evidence of other crimes came in as the basis of opinion testimony).
Committee Comments
The adoption of section 2609 changed previous Oklahoma law by permitting introduction, within a ten-year limit, of crimes involving "dishonesty or false statement," and crimes punishable by more than one year imprisonment, in the discretion of the court, to impeach the credibility of a witness. Before section 2609 was adopted, impeachment was allowed by convictions involving "moral turpitude" under the vague temporal standard of "not remote."
Countless cases have approved the giving of limiting instructions when the defendant, or any other witness, has been impeached through introduction of past convictions. See, e.g., Samples v. State, 1959 OK CR 6, 337 P.2d 756; Farley v. State, 93 Okl. Cr. 192, 226 P.2d 1002 (1950); Tillman v. State, 82 Okl. Cr. 276, 169 P.2d 223 (1946); Smith v. State, 78 Okl. Cr. 375, 148 P.2d 994 (1944); Spivey v. State, 69 Okl. Cr. 397, 104 P.2d 263 (1940).
The Court of Criminal Appeals has refused to find reversible error in several cases where an instruction regarding the utility of the defendant's former conviction(s) was neither requested by the defendant nor given by the court. Wolf v. State, 1962 OK CR 123, 375 P.2d 283; Galbert v. State, 1954 OK CR 152, 278 P.2d 245. It is the position of the Commission that the limiting instruction should be given only when requested by the party who called the impeached witness, since trial strategy may dictate that the jury's attention not be directed again at the close of the evidence to the fact that a party, or the witness of a party, has been convicted previously.
(2000 Supp.)