~ ~ ~ ,~~~~~~exception, it was established that the <strong>The</strong> defense attorney's first line of He expressly denied implying that he hadprosecutor knew that the gun charge had defense to attempts to impeach a client's "never had a lawyer, never had a casebeen dismissed. <strong>The</strong> bad faith conduct of "blanket statements" is usually to argue before." <strong>The</strong> trial court then, over objectheprosecutor resulted in a reversal of the that the defendant did not open the door to tion, permitted the prosecutor to bring outconviction. See also, Dnvis 1,. Stnte, 268 the collateral misconduct. If the testimony the prior felony trial.S.W.2d 152 (Tex.Cr.App. 1954). by the defendant which the prosecutor <strong>The</strong> court of appeals held the inlpeach-In order to preserve a "bad faith" objec- claims was misleading was ambiguous, men1 to be proper, finding that the trialtion, evidenceofthe prosecutor's bad faith then theanswer to thequestion whetherthe court was withinitsdiscretioninruling thatmust be in the trial record. See Alex-ander prosecutor can introduce the collateral the defendant's redirect testimony wasI,. Stnte, 476 S.W.2d <strong>10</strong> (Tex.Cr.App. other "trouble" should be governed by misleadingandopenedthedoor.<strong>The</strong>Court1972); andHear~Jeldv. State, 470 S.W.2d Prescott v. State, 744 S.W.2d 128, 131 of Criminal Appeals disagreed.895 (Tex.Cr.App. 1971). If the defense (Tex.Cr.App. 1988). Prescott was chargedattorney believes that the prosecutor is with murder. He chose to testify, and on <strong>The</strong> answer here was in direct"bluffing," that is, cross-exanlining about cross-examination he was questioned response to the question asked.nonexistent arrests, for example, the about his relationship with two persons When attempting to detemune thedefendant's attorney should immediately who had executed affidavits supporting meaning of a response, the predicateobject and seek to approach the bench. Prescott's version of events. <strong>The</strong> prosecu- question is a determinative interpre-Once there, counsel should demand to tor sought to deternine how the defense tive tool. <strong>The</strong> appellant's responseknow the basis of the questions. If the learned the identity of the two, and bow it was not a deliberate attempt .. . todefendant's "rap sheet" does not contain happened that both gave their affidavit to portray himself as one ignorant ofthe matters gone into by the prosecutor, the defense attorney on the same day. the criminal justice process. It wascounsel should insure that the accused's On redirect, the defendant testified that however, indicative of an appellantrecord is made a pad of the trial record for he did not know the two before the inci- unversed in theeveryday proceduresappeal purposes. This was done in Nelson dent. <strong>The</strong>n, going into the taking of the of attorneys - particularly with%r State, 503 S.W.2d 543 (Tex.Cr.App. affidavits on the same day, counsel in- respecttothetakingoftwoaffidavits1974). Defense counsel may even call the quired: in one day.prosecutor to the stand out of the hearing Q: Now, did you have any control overof the jury to establish a record for appeal what day that I decided to workon your <strong>The</strong> Court went on to concede that theon the bad faith issue. Keel ir State, 434 case? defendant's response may have been am-S.W.2d 687 (Tex.Cr.App. 1968). Of ... biguous. But it ultin~ately held that, "Givencourse, if the prosecutor's basis is ques- Q: When I decided to take a statement or an ambiguity, the complained of responsetionable, counsel for the accused should do anything in your case? should be narrowly construed." <strong>The</strong> courtmoveforanlistrial.Ifthemotionisdenied, A: No, sir, I had no control over that. ..neglected to point out that the harm in thecounsel should request that the jury be ... defendant's testimony, if any, was thorinstructedto disregard the prosecutor's Q: Did you - do you find anything un- oughly countered on re-cross when he adquestions.Defense counsel must remain usualthatthelawyerdecidedtoworkon mitted that he did not mean to imply thatalert and not let the prosecutor refer to any your case took two statements one day? he had "never had a lawyer, never had abaseless extrinsic offenses during closing A: Well, I'm - this is my fust time of case before." <strong>The</strong> trial coult should haveargun~ent.Evenifthereisagoodfaithbasis going through this. Hopefully my last. terminated the cross-examination on thefor the collateral impeachment, it must be In other words, I don't I ' m not sure extraneous offense at that point. <strong>The</strong> falseremembered that "other trouble" evidence, about the legal lawyer (pause) what- impression was completely rebutted, andoffered to correct nlisleading testimony, is ever- the prejudice of bringing out the prioradnutted only to impeach thedefendantns Q: Okay. felony trial would have been avoided.n witness. This means that the prosecutor, A: -procedures. Nevertheless, Prescott is a signal to thein her summation, may not use the col- <strong>The</strong> prosecutorknew that thedefendant trial bench that they should be slow to rulelateral offenses as "procensitv" or charac- had beentriedforafelonvinthesamecourt that anaccusedhasone~ied todoortoother-~~ ~ ~~~ ~ ~ ~~ter evidence. That is, she ma; not use thewise inadmissible other crimes evidence if"other trouble" as proof of your client'scriminal propensities, or argue that theprobability that accused committed the offensepresently charged is increased by hisother indiscretions. This is firmlyprohibited by Tex.R.Crim.Evid. 404(a)and the fust sentence of Rule 404@).Ambiguous Blanket Statements:PrescottIS VOICE for the Defense I June 1989one year earlier. When sie tried to pin thedefendant down on re-cmss and get him tosay that he had never been charged with acrime before, the defendant wriggled offthe hook. <strong>The</strong> prosecutor had the courtreporter read back the earlier "this is myfirst time of going through this" answer,and asked him, "Now, what did you meanby your answer?" He replied, "What Imeant was this is t his is the first timethat I have been questioned about two witnessessigning statements the same day."the testimony is an~biguous.<strong>The</strong> core of the Prescott holding is thattheantidote may beworse than the disease.Certainly, Rule 403 demands that the trialcourt measure the possible prejudice to thedefendant resulting from the rebuttalevidence against the improper advantagethe defendant tried to take. An ounce ofmisleading does not call for a pound ofcure.
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