WPIC 5.05 Prior Conviction—Impeachment—Defendant

Use this instruction only when a defendant is a witness and the defendant's own prior conviction is admitted for the sole purpose of impeaching the defendant.

The instruction should not be given if the prior conviction was admitted for substantive purposes. See WPIC 5.30 (Evidence Limited as to Purpose), and the discussion in the Comment below.

When a defendant's prior conviction is admitted both as substantive evidence, for example when it is an element of a charged offense, as well as for impeachment purposes, this instruction will need to be modified.

ER 609.

When evidence of prior crimes is admitted under ER 609(a) for the purpose of impeaching a defendant, an instruction should be given that the conviction is admissible only on the issue of the defendant's credibility and may not be considered on the issue of guilt. This instruction (or an earlier substantially similar version of this instruction) has been cited with approval a number of times. See State v. Mohamed, 186 Wn.2d 235, 245 n.3, 375 P.3d 1068 (2016); State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1989), opinion corrected, 787 P.2d 906 (1990); State v. Anderson, 31 Wn.App. 352, 641 P.2d 728 (1982).

The instruction is not an unconstitutional comment on the evidence, and it may be given even though the defendant does not want the instruction given. State v. Davenport, 33 Wn.App. 704, 657 P.2d 794 (1983), reversed on other grounds, 100 Wn.2d 757, 675 P.2d 1213 (1984).

If the defendant requests a limiting instruction that relates specifically to the jury's consideration of a prior conviction, it is not sufficient to merely instruct the jurors in general terms of their role in weighing the credibility of witnesses. City of Seattle v. Patu, 108 Wn.App. 364, 30 P.3d 522 (2001) (finding the error harmless, however, under the facts of the case), affirmed, 147 Wn.2d 717, 58 P.3d 273 (2002). However, a court has no obligation to give this instruction sua sponte. State v. Dow, 162 Wn.App. 324, 253 P. 3d 476 (2011).

Special care needs to be taken in drafting the proper instruction for cases involving multiple prior convictions when some of the convictions are subject to this instruction and others are not. In State v. Ortega, 134 Wn.App. 617, 142 P.3d 175 (2006), the court concluded that when

State v. Ortega, 134 Wn.App. at 622–23 (encouraging the use of a tailored instruction under these circumstances). See also, State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1989), amended 787 P.2d 906 (1990) (evidence of prior theft convictions admissible under both ER 403(b) and ER 609).

The law that is the basis for WPIC 5.05 is covered in detail in Tegland, 5A Washington Practice: Evidence Law and Practice, sections 609.1 to 609.19 (6th ed.).