narcotic felony offenses that he committed on the same day his case did not go to trial until more than four years later in august of two thousand and four he did testify in his home behave off and after he testified the to introduce his prior conviction for aggravated battery from december fourteenth one thousand nine hundred ninety the trial judge in the case i'm it it made it on the basis that it was within ten years of this offense on appeal noted that the defendant did not raise the issue in his motion for a new trial however they address the issue under plain error the appellate court concluded that the evidence was closely balanced and that the trial that the trial court had the appellate court concluded that it is the date of trial which suit should signify the end of ten years for people for purposes of people versus monk amerie the paul court therefore reversed the defendant's convictions the issue just before this court of a case of first impression is what date signifies the end of ten years under people versus montgomery the people would contend that there are three primary considerations that this court should factor into their decision the first is the version of the rule adopted by this court among comrie the second is the purpose for which the evidence is animated and the third is the value that this core places in putting discretion in the hands of the trial judge the people would submit that after a consideration of each of these factors this court will come to the conclusion that the date of offense is a day which should be henceforth adopted in illinois as a threshold matter most cases don't fall into this category most cases are well after ten years in which case neither of these dates will be relevant or it's less than ten years in which case be relevant however in this case ten years was mathematically over after the date of the offense after the date of arrest but before the defendant testified obviously before his case went to trial  i rule that would make it consistent could be a rule that applies the date of offense to the date for criminal defendants and the date of trial for other witnesses however should this court not desired bat rule another possibility which is that legislature has done in tennessee is to adopt the date of the onset of prosecution or onset of the action and for them they have determined that they had applies to all of the to all witnesses however the state's position is that it's not necessary to have a rule which applies to criminal defendants as well as two witnesses otherwise situated  role in the case let's say of a witness a witness who has a prior conviction and then testifies a court there is no intervening factors which are facts that person's credibility however in the case of a criminal defendant the fact that a defendant has allegedly committed a fans and has a rested for and the fans in between those two dates should necessarily factor into the question of is he a credible witness and it's simply  it doesn't it's not in the interest of justice that were a case is over after the first two days before the second that the trial judge should not be able to consider the fact that this defendant he has a subsequent offense because they had offense is necessarily a part of the equation for admissibility under people versus montgomery in people versus monk only this court adopted the proposed rule six zero nine eight of the federal rules of evidence that's very very important in this case because under paragraph b of the proposed rule it defines ten years as being the day from conviction or release from confinement whichever is the later date it is unlike the later inactive version of the federal role of evidence which has language which allows a trial judge to still in made a prior conviction if the trial judge feels that that's in the interest of justice the vast majority of states in the united states also share that same rule they have a language which allows a trial judge to admit a conviction which is older than ten years if circumstances warrant it it's very important because whatever rule this court decides to enact in this case it must be cognizant of the fact that that means that there are no exceptions the ten year rule in eleanor has been regarded as a bright line test and therefore however this court defines ten years as written under the propose rule federal robin and there were no exceptions to the ten year rule the people would also suggest that this court look to the reason that this evidence is being admitted the evidence of a prior conviction is admitted to determine whether it's probative of the defendant's credibility and what does that mean it means he has this person been rehabilitated to a point where they have prior conviction is no longer at an end miscible it has been s up present a period of unquestioned good behavior it has been said to be related to opportunity the fact that the defendant is out that he is in society and that he's not committing further crimes and bad is what is relevant to his right to his credibility people versus mccain people versus fear all very very recently actually was decided after i've read my opening brief and instructive in this respect because they are the only illinois the similarity of the two crimes they inherently involve a weighing process if you well of the two offenses so to not a while with judge to examine those factors is not probative of the defendant's credibility when he testifies finally the language of world six o nine b is also very instructive because rule nine six so be excused a rule six o nine b states that the ten year period is examine from conviction or release from confinement if the position of the appellate court in the position that defendant advocates were to be true and it's the mere passage of time which determines ten years then there would be no reason to have the language released from confinement clearly that supports the position that it's the time the defendant is in society and not committing for the crimes which is relevant to his credibility in court  is there any indication why this case took four years from going to trial well there were a lot of indications the people actually found their answer discovered within three months of the onset of the trial there were many by agreement continuances but in fact that what i believe something like ten continuances were defense counsel asked for continuances to file his only answer there was to be f ws in this case there was a new private attorney three years after the start of the trial how long was on one he appeared later in the day and then the other was i think a short amount of time it wasn't significant and were corrected no protected time no not at all but this case and at the end of the case actually both the trial judge and the defense attorney actually apologized for the delay that this case had taken to go to trial the final point is the discretion the appellate court found reliance upon and defense looks to the case of people versus montgomery to support their position however the people would submit that people versus montgomery actually supports the state's position in this case mongomery was really a really really reaction to a bright line test the trial judge and people versus montgomery he had admitting to a prior conviction that he really didn't believe was probative of the defendant's credibility because it had occurred so long ago and so in people versus mongomery this court looked at this situation and they found or you it found a rule of law that answered this and what their role of the law was dependent upon is the discretion of the trial court judge wrong come or really is all about discretion and there's multiple passages from montgomery that talk about that the trial judge is in the best in the best position to look at the parties to weigh the credibility to make this determination how peculiar circumstances may exist among gun where he talks to all of these things there is nothing magical about ten years it's just a point in time as a matter of fact states have rules which do not involve ten years some states fall five years for mr meters and ten years for felonies some states use a fifteen year rule some states don't want the prior convictions be admitted under any circumstances and some states have actually no time limits there is nothing magical about ten years however ten years as defined by this court will signify the absolute and in the importance is to place the discretion in the hands of the trial judge so that if circumstances exist if a defendant were to be absent for a considerable amount of time on a bond forfeiture warrant if there's a delay in trial that's a tribute to the defined whatever the circumstances it's important for all annoy and it's unique position to adopt the dative of fense because it is only it is the only date which will give the trial judge the full of a ray of circumstances to consider and it's the date which will in the final language of the rule other than language is evidence of the conviction of this rule is not admissible if a period of more than ten years has elapsed since the date of conviction or the release of the witness from confinement whichever is a later date the most natural reading of that is that conviction cannot be more than ten years old at a time it's offered to impeach a witness's testimony and if it is and it is not it miscible that's the view consistent with the majority of appellate court decisions in this and the decisions in this list as you agree that this is an issue of first didn't try to prove that release of the unlikely that he could it's unlikely that he served a full four years of an aggravated battery was talking generally in general or were a lot think the trial courts are well equipped to handle improper requests for delays rational relationship between a twenty one year old robert conviction and the witnesses present credibility among government goes on to say so if there were no support for the proposition that someone convicted twenty one years ago would be more likely than someone not so convicted to testify falsely today so much focus was on the relevance the prior conviction to the moment of witness testimony testifies in that focus was reiterated by discordant people be knolls excuse me the moment of testimony as the time for which to measure the age of a prior conviction under the rule is the only approach that makes sense from a policy standpoint as well as professor weinstein arguing that the time of testimony small most appropriate well but the officers well we don't know because the state only chose to call the purchasing officers those officers testified that you know another officer gave them back the funds that they'd used to purchase  makes sense that he would do that because he was going to commit i consider that conviction in his credibility termination situated to meet and indicates the state would believe that civil witnesses that had some time been charged in the intervening years between their prior conviction and whatever trial they were testifying and that that the mere fact that they were thank you just very briefly as to the balance question this was not a mere credibility determination the appellate court concluded that the evidence was closely balanced because it was what they determined to be a credibility determination this was two chicago police officers who made separate independent purchases face to face hand to hand with the defendant they had their pre recorded fines which they checked the serial numbers returned to them the drugs were recovered from but the found and they tested positive for here on the defendant on the other hand testified he was walking down the stairs and didn't remember what happened the trial judge commented at least six that the defendant study at least six times i don't remember what happened it is noteworthy that in the trial judges conclusion and review of the admin's he never stated that the prior conviction had been admitted and therefore the seventh was not closely balanced and the issue should not have after the date of a rast but before the date of trial it is always going to be subject to trial manipulation it's just a fact of life the importance of choosing the date of the offense is that it gives the court this question without the date of trial or testimony there could be the case where the people answer ready for trial and the defense asked for a continuance and their continuance takes the case out of ten years and there would be no recourse for the trial judge or for the people this case is a good example of bad took four years to go to trial and ten years have elapsed after the last but before the date of trial testimony that has nothing to do with the defendant's credibility defendants and nose persons panopoulos yes this court said john orally their prior conviction should be admitted to impeach the credibility of a witness but it did not speak to the aircraft b of the role it said nothing about the time period and in response to justice comments questions it's very interesting that in minnesota minnesota is a state which follows the date of offense and in a subsequent case minnesota's supreme court ruled that the rule should only applied to criminal defendants and be out rolling was i think eight or ten years ago and it's been applied successfully in minnesota and therefore it could well work for  illinois just as a few final notes the date of trial and the date of testimony as justice for joe pointed out that would share the same problem the date of trial is not always the date of testimony the case could where the defendant ten years would away ops after the trial starts but before the date of the testimony what that shows is that the defendant's testimony itself or the date of testimony is by itself meaningless in this case had the defendant testified on december thirteenth two thousand bet would have been within ten years of the prior conviction but the fact that he testified a few years later has no bearing on his credibility it's what happened in between that has a bearing on his credibility it's just in final response to the proposition that this issue was somehow determine the people versus mon comrie the fact that words or phrases refer to the date of trial the date of testimony is not dispositive of this rule the approach followed by the appellate court and submitted by defense counsel miss case yes this court only to look backward and to rely upon words or phrases which conclude that the date of trial are the date of testimony should be adopted allen no i the people with some met that this court must adopt the rule which works for l annoy and a rule which allows the trial judge to