I'm preparing for trial on an Agg Sexual Assault, mandatory life case (2 prior sexual assaults). I think defendant wants to testify to say it wasn't him. He has filed a Theus motion. I've looked at each of the Theus factors and I don't think it looks good for me. I have crimes of violence, similar in nature, and from the 1980's, but he's still on parole. Those factors are all not in my favor. However, I think his testimony is very important to him, therefore making his credibility very important. I am not able to accept the idea that I may not be able to impeach him. Has anyone argued a situation like this where the other factors are against you? Thanks so much for any suggestions!!

Laticia
Assistant D.A.
Galveston County

Remember Theus applies in the 609 context. He can still open the door, and you can still use 404(b).

I have a case on my office regarding Theus. I have never seen a Judge do anything but say "Denied" when confronted with one of these.

The Theus motion is silly. I'll be by the office later today and find the case and post the cite. It should be a non-issue. I have not had one of these motions in five years.

Like Marvin says, recognize the difference between using the priors for extraneous offense purposes and for impeachment. And always listen for him to open the door.

I would research the issue of remoteness on these cases, and see how the fact he is still on parole affects this. I would use the offense that he is still on parole for to use as your impeachment offense. This is because you may only use one offense to impeach his credibility, and by using an offense he is still on parole for, even if the conviction was more than 10 years ago, the remoteness argument is greatly lessened.

Learn the proper impeachment predicate, which is basically:
1. to ask him if he was convicted of the offense of X, A FELONY, on {date}.
If he denies the prior conviction, you can impeach by admitting the certified J&S. If he does not deny it, then extrinsic proof of same is not admissible.

I'm not Marvin. Who is Marvin?

[This message was edited by Chickenman on 11-13-06 at .]