Tuesday, May 11, 2010

People v. Douangpayna (Cal. Ct. App. - May 11, 2010)

A guy (Bansa Douangpayna) hits a guy over the head with a beer bottle in a bar fight. That's cool in the movies, but in the real world, we call that "assault with a deadly weapon." Defendant testifies at trial, but he's got two felony priors, so we can impeach him with those. Fair enough. So after he testifies, the prosecutor asks the defendant: "You were convicted in 2003 of a felony involving moral turpitude, right?" (and again in 2005), and the defendant responds: "Yes."

All this is good, and exactly as it should be. We don't allow the details of the particular priors because that would be unduly prejudicial. All we want to let the jury know is that the defendant has previously been convicted and that our judgment is that people with those priors may tend to perjure themselves as well -- or that a jury could at least reasonably take that into account. That's exactly what happens. So far so good.

But after they retire to deliberate, the juror sends a note that asks for a definition of "moral turpitude". Fair enough. The prosecutor used a term and the jury didn't know what it meant. That's fine too. So the judge looks up a case that defines the term, and tells the jury (over the defendant's objection): "The term 'moral turpitude' refers to a crime that reflects a readiness to do evil."

Hold up. I don't dispute that's what the case says. 'Cause it does.

But just because something's true doesn't mean you tell it to the jury. Some things are more prejudicial than helpful. And saying that the defendant is someone who has "a readiness to do evil" -- well, that's pretty darn prejudicial. Particularly in a case about a bar fight.

Were I the trial court, I'd have done the following. Rather than respond to the question, I'd have told the jury: "I appreciate your request. However, you need not speculate on the nature of the defendant's criminal convictions, or on what 'moral turpitude' entails. You need only consider that the defendant has previously been convicted of a felony, and, as I instructed you, that 'In evaluating a witness' testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony [and] among the factors you may consider are: . . . . Has the witness been convicted of a felony?.' I remind you that, as I instructed you, 'If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the credibility of the witness' testimony. The fact of a conviction does not necessarily destroy or impair a witness' credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.'" In my mind, that's all that need -- or should -- be said.

Similarly, if I were on the Court of Appeal, I wouldn't have done what Justice Robie did here, and conclude that there was no error. Rather, I'd have said precisely what I said above, and then affirmed the conviction on the ground of harmless error, since while calling the defendant "evil" is pretty bad, given the testimony at trial, I'm pretty sure he'd be convicted anyway. But what I don't want is an opinion that might encourage trial courts to answer similar questions the same way in the future; or, worse, give this definition during the instructions. And yet I fear that this opinion will accomplish precisely those effects.

So, as I said, I'd have done this a different way.