Journal of Criminal Law and CriminologyVolume 53Issue 1 March Article 2

Spring 1962

Judicial Admissions: Their Use in Criminal TrialsPatrick M. Wall

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Recommended CitationPatrick M. Wall, Judicial Admissions: Their Use in Criminal Trials, 53 J. Crim. L. Criminology & Police Sci. 15 (1962)

JUDICIAL ADMISSIONS: THEIR USE IN CRIMINAL TRIALS

PATRICK M WALL

The author, a member of the New York Bar, is Law Clerk to Judge Joseph A. Sarafite of theCourt of General Sessions of New York County. He received both his LL.B. and his LL.M. fromNew York University Law School, where he is currently a candidate for the J.S.D. degree.

Counsel for the defense in a criminal case may sometimes prefer that the defendant admit a factinvolved in the prosecution's case rather than have the prosecution present to the jury evidence re-lating to the fact. In what circumstances may a judicial admission be particularly useful to thedefendant? When may the prosecutor employ a judicial admission to prevent defense counsel frompresenting evidence? And how do the courts rule when, despite a defendant's or prosecutor's judicialadmission of a fact, the other nevertheless chooses to present his evidence of the fact? Mr. Walldiscusses these questions and other related matters in the following article, which reviews and evalu-ates the case law with respect to the use of judicial admissions in attempting to prevent the presenta-tion of evidence.-EDIToR.

One of the most important tasks of defensecounsel in a criminal case is to prevent the in-troduction of evidence prejudicial to the defendant.The task is often an impossible one: witness theplight of counsel who must put on the witnessstand an accused with prior convictions. If hedoes so, then, by the almost unanimous Americanrule, the prosecutor may introduce evidence ofthe prior crimes.' The jury will be instructed, ofcourse, that it may use this evidence only for thepurpose of determining the credibility of the ac-cused, and not as an indication, that he is thetype of person who would commit the crimecharged. However, as Judge Learned Hand oncestated in describing a similar limiting instruction,this is t "recommendation to the jury of a mentalgymnastic which is beyond not only their powers,but anybody's else." 2

Similar problems may present themselves at

I See 1 WIGmoRE, EViDENcE §61 (3d ed. 1940); 3 id.§890; McCozsncK, EviDENCE §43, at 93-94 (1954).The general rule in Pennsylvania, however, is to thecontrary. Id. at 94 & n.38. And UNroiFm RurE oFEvroENcE 21 provides in part, "If the witness be theaccused in a criminal proceeding, no evidence of hisconviction of a crime shall be admissible for the solepurpose of impairing his credibility unless he has firstintroduced evidence admissible solely for the purposeof supporting his credibility."

SNash v. United States, 54 F.2d 1006,1007 (2d Cir.),cet. denied, 285 U.S. 556 (1932). See also the remarksof Circuit Judge Hastie, concurring in United Statesv. Price, 258 F.2d 918, 922 (3d Cir:), cert. denied, 358U.S. 922 (1958): "Because men often cannot or willnot channel their thinking as directed by anotherperson, even a learned, solemn and berobed judge,there is always some risk that legally improper con-siderations, if known to the jurors, will influence theirverdict."

many stages of the trial. The prosecutor may seekto introduce, on any one of a number of recognizedtheories of admissibility, evidence highly prejudi-cial to the accused. Often, defense counsel's onlyrecourse is to request the judge to give properlimiting instructions to the jury. In some situa-tions, however, defense counsel may have a farmore formidable weapon in his arsenal-a formaljudicial admission or stipulation of the fact whichthe prejudicial matter tends to prove.

It is quite clear that such an admission of thefactum probandum will dispense with the necessityof its proof. The almost universal rule in theUnited States was stated thusly by the New YorkCourt of Appeals:

"[When a fact, even of great importance, isadmitted by the defendant or his counsel inopen court during the trial, that fact is estab-lished by the admission, and no. evidence needbe given in relation to it.' 3

In such a case, defendant is bound by the admis-sion, and the prosecutor may safely fail to intro-duce evidence in support of the fact.4 A problemarises, however, where the prosecutor prefers toresort to his prbof; the issue then is whether theadmission can prevent him from doing so. A re-view of the cases indicates that a large majorityof courts leave the question to the discretion of the

3 People v. Walker, 198 N.Y. 329, 335, 91 N.E. 806,808 (1910).4 State v. WoQd, 99 Vt. 490, 134 Atl. 697 (1926). The

rule is not one-sided. It has been held error for a judgeto submit to the jury, as controverted, matters whichhad been the subject of a formal admission by theprosecutor. People v. Blanck, 212 App. Div. 578, 209N.Y. Supp. 459 (lst Dept. 1925).

PATRICK M. WALL

trial judge, 5 as Wigmore has advised,6 and, ineffect, allow the prosecutor to ignore the admis-sion and introduce his proof.7

The purpose of this article is to suggest thatthe courts, in deciding this issue, have often doneso on doubtful theories and with an excessivelyoptimistic opinion of the jury's ability to makefine distinctions and to decide fairly in the face ofprejudicial evidence. Situations where the issuehas arisen will be illustrated, and occasionallysuggestions will be made as to the areas in whichdefense counsel may attempt to exclude prejudicialmaterial by means of judicial admission.

There is virtually no limit to the number ofsituations which may impel defense counsel toseek to prevent the introduction of evidence insuch a manner. In most cases, however, they willmore or less correspond with the categories listedbelow.

GRuEsomE ExmBITS

If a valid judgment may be based upon thenumber of reported decisions, it appears thatjudicial admissions are resorted to most oftenwhere the prosecutor, in homicide cases, seeks tointroduce photographs of the victim taken aftercommission of the crime, or the victim's blood-stained clothing. The usual reasons advanced bythe prosecutor for the admission of the exhibits

5 It is as rare as it is unreasonable for a court to saythat the judge is unjustified in excluding proof of afact already admitted, as was said in State v. Camp-bell, 93 Conn. 3, 104 Atl. 653 (1918).

9 WIGMORE, EvIDENc E §2591 (3d ed. 1940) reads inpart:

"A fact that is judicially admitted needs no evidencefrom the party benefiting by the admission.

"But his evidence, if he chooses to offer it, may evenbe excluded; first, because it is now as immaterial tothe issues as though the pleadings had marked it outof the controversy ... ; next, because it may be super-fluous and merely cumber the trial... ; and further-more, because the added dramatic force which mightsometimes be gained from the examination of a witnessto the fact (a force, indeed, which the admission isoften designed especially to obviate) is not a thingwhich the party can be said to be always entitled to.

"Nevertheless, a colorless admission by the oppo-nent may sometimes have the effect of depriving theparty of the legitimate moral force of his evidence;furthermore, a judicial admission may be cleverlymade with grudging limitations or evasions or insinua-tions (especially in criminal cases), so as to be techni-cally a waiver of proof. Hence, there should be noabsolute rule on the subject; and the trial Court'sdiscretion should determine whether a particularadmission is so plenary as to render the first party'sevidence wholly needless under the circumstances."

7 See 22A C.J.S. Criminal Low §640 (1961), and casescited therein.

is that they illustrate the nature and extent of thewounds, prove the corpus delicti and, where theexhibits are photographs, establish the identityof the victim. Where the judge has admitted theexhibits despite a stipulation, a large number ofappellate courts have nevertheless affirmed theconviction, on a number of grounds which, it issubmitted, are clearly unreasonable. Some ex-amples follow, and the list could be multipliedmany times over.

In State v. Edwards,8 the prosecutor was al-lowed to introduce a photograph of the head andtorso of the female murder victim, showing thewound infected with maggots and the body in anadvanced state of decomposition. The SouthCarolina Supreme Court, in finding no error,stated that the photograph could not possiblyhave prejudiced the defendant, for everything itdepicted was later testified to in detail by otherwitnesses. It agreed that gruesome exhibits calcu-lated to inflame should be excluded if irrelevant ornot substantially necessary to prove a materialfact, but stated that the photograph here inquestion proved the identity of the deceased. Twojudges dissented on the grounds that the exhibitwas dearly inflammatory and unnecessary as well,for there had never been any real issue of identityin the case.

Although no judicial admission was involved,the decision is significant because the reasoningwould apply even had one been made. In denyingthe existence of prejudice merely because otherwitnesses testified to everything depicted in thephotograph (including the identity of the de-ceased), the majority seems to have missed thepoint completely; even if identity had been inissue, the aliundance of other evidence whichproved all that the photograph could have provedmade the introduction of the gruesome photo-graph unnecessary and thus prejudicial. Underno circumstances could the submission of thephotograph to the jury be considered necessaryto prove identity, and its introduction could nothave helped but inflame the jury.

A violent murder is always capable of causingrevulsion on the part of a jury, but the danger ofprejudice is perhaps greatest when the violenceis directed against the young and the helpless.State v. Leland,9 a case in which the death penalty

8 194 S.C. 410, 10 S.E.2d 587 (1940).9 190 Ore. 598, 227 P.2d 785 (1951), aff'd on other

grounds, 343 U.S. 790 (1952).

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was imposed, involved the killing of a fifteen yearold girl. Defendant had confessed the crime tothe police, but had pleaded not guilty by reason ofinsanity. Despite the defendant's judicial ad-missions, made in open court during the trial, asto the nature of the wounds, the prosecutor wasallowed to introduce the victim's blood-stainedclothes, showing the tears made by the knife, aswell as photographs of the victim's nude body,showing the wounds themselves. The convictionwas affirmed by the Oregon Supreme Court, whichstated that as long as the defendant's plea of notguilty stood,10 the state had, the right to prove itscase "up to the hilt," and to choose its own wayof .doing so. "There is no rule," the court added,"which requires the district attorney to be mealy-mouthed. . ...,,n The clothes and pictures wererelevant, said the court, because they tended toshow that the wounds were inflicted in the mannerdescribed in defendant's confession and becausethey tended to show premeditation and delibera-tion.

The facts of the Lelatd case illustrate a pointtoo often neglected. The introduction of gruesomeexhibits is dangerous enough when the defendantdenies any connection with the crime; but where,as here, defendant admits the acts which resultedin death and relies on another defense, the exhibitsmay so inflame the jury as to blind them to themerits of that defense. The history of the criminallaw is not barren of cases in which an insanedefendant has been found sane not so much on thebasis of the psychiatric testimony as upon thejury's revulsion at the hideous nature of his acts.Where the acts are admitted by defendant, onlythe clearest necessity should impel the court toallow proof so prone to misuse by the jury.

State v. Stansberry involved a prosecution forassault with intenit to murder. Defendant pleadedself-defense. Despite defendant's judicial admissionthat it was he who inflicted the wounds, theprosecutor was allowed to introduce the victim'sclothing which was "grewsomely stained withblood." A doctor had already testified as to thenature of the wounds. The Iowa Supreme Courtaffirmed the conviction, stating that the admissionor exclusion of such evidence is -a matter for the

10 In Oregon, a plea of guilty to murder will beaccepted. ORE. REv. STAT. ch. 163, §130 (1955). Inother states, however, this- may not be the case. See,e.g., N.Y. CODE Cmu. PRoC. §332.

11 190 Ore. at 630, 227 P.2d at 799.12 182 Iowa 908, 166 N.W. 359 (1918).

discretion of the trial judge, and no admission bydefendant should be able to prevent the introduc-tion of evidence by the prosecutor. A contraryrule, said the court, would work harm in thefollowing way: if a prosecution witness made thecase for the state less strong than the facts justifiedand less strong than it could be made by otheravailable evidence, then the defendant could endfurther inquiry on the point by stipulating thatthe witness had said all there was to say. It takesno lengthy analysis of this argument to realizethat the court had an erroneous conception of thenature of a judicial admission. An admission hasno validity unless it admits all the relevant factswhich the evidence sought to be excluded tends toprove. Whatever relevant fact is not admittedmay be proved, unless inadmissible on othergrounds.

State v. Uptonis involved a conviction for murderand an imposition of the death penalty. Thedefense was insanity. The prosecutor was allowedto introduce photographs showing the wounds onthe victim's body despite defendant's stipulationas to the ndature and location of the wounds. TheNew Mexico Supreme Court affirmed, stating thatthe photographs were not gruesome and wereadmissible for the purpose of clarifying andillustrating the testimony, proving the corpusdelicti, and corroborating the identity of thedeceased. It should be noted, however, that thereappeared to be not the slightest question about thecorpus delicti or the victim's identity. And it isdoubtful whether the illustrative value of thephotographs was so great as to offset the possibilityof their misuse against a defendant who hadadmitted the killing but had claimed insanity as a.defense.

In Rivers v. United States,.4 a prosecution formurder in which defendant had admitted dis-membering the body of the victim but had deniedcommission of the murder, the prosecutor waspermitted to introduce pictures of the dismemberedbody in the morgue. On appeal to the Court ofAppeals for the Ninth Circuit, the trial judge washeld not to have abused his discretion in admittingthe evidence. The pictures were relevant, said thecourt, because they showed the mode andthoroughness of the cutting (factors which thedefendant had not admitted), and this would bear

13 60 N.M. 205, 290 P.2d 440 (1955).4270 F.2d 435 (9th 'Cir. 1959), cert. denied, 362

U.S. 920 (1960).

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upon whether the dismemberment had been done"wildly, or in a calculated manner." Althoughreasonable in theory, the decision may rest on anoverly-optimistic appraisal of the jury's abilityto make such a fine distinction when confrontedwith such a gruesome exhibit.

Occasionally, gruesome exhibits are introduceddespite appropriate judicial admissions by thedefendant, and the resulting convictions areaffirmed on the ground that defendant has noright to prevent, by a mere judicial admission,the introduction of relevant evidence by theprosecutor.15 Such an attitude, it is submitted, isdearly unreasonable and allows a defendant to beseriously and unnecessarily prejudiced because of amisguided deference to what are considered themerits of the adversary system.

In other cases, however, a contrary rule hasbeen applied, and a judicial admission has beenheld sufficient to prevent introduction of gruesomeexhibits. In State v. Long,8 the prosecutor wasallowed to introduce the bloody clothes of a murdervictim despite defendant's judicial admission thatthe crime (with which he denied confiection) wascommitted by shooting and stabbing. On appeal,the conviction for second degree murder wasreversed. The court stated that the defendant hadadmitted all valid facts to be drawn from theevidence. An examination of the clothes wouldnot aid the jury, connect defendant with thecrime, prove the identity of the deceased, or showthe nature of the wound. Under the circumstances,the creation of prejudice would be the only effectof the submission of the clothes to the jury.

The court's view in the Long case is shared byother courts. Indeed, some decisions have goneeven further. In Lacoume v. State,17 it was helderror to admit, in a prosecution for aggravatedassault, the bloody clothes of the victim, wherethe defendant did not dispute the nature andposition of the wounds. This decision goes furtherthan that in the Long case, for the defendantmade no formal admission and the jury was thusfree to reject what other evidence the prosecutormay have introduced concerning the wounds.18

15 See State v. Powell, 21 Del. 24, 61 Atl. 966 (Ct. ofOyer & Terminer 1904); State v. Griffin, 218 Iowa 1301,254 N.W. 841 (1934).

1"336 Mo. 630, 80 S.W.2d 154 (1935).17 65 Tex. Cr. 146, 143 S.W. 626 (1912)."8 See also State v. Porter, 276 Mo. 387, 207 S.W.

774 (1918) (introduction of bloody clothes error wherethey proved nothing not already known); Oxendine v.State, 335 P.2d 940 (Okla. Cr. 1958) (exhibition on

And in People v. Burns," an exceedingly gruesomepicture of a murder victim, taken after autopsy,was held improperly admitted at the trial. Herethe court acknowledged that there was a genuinedispute as to the cause of the wounds shown, butstated that the dispute could not have beenresolved by an examination of the photographs.

In considering whether to make a judicialadmission, therefore, defense counsel shouldrealize that gruesome exhibits are sui generis,largely because of their inflammatory nature.Ordinarily, counsel should admit the truth of allmatters which the exhibits may tend to prove.Cases may arise, however, where the exhibits areso gruesome and their probative value so slightthat an appeal court would prohibit their useeven in the absence of an admission. The difficultyinherent in predicting such a prohibition, and theharm done if the prediction is incorrect, shouldcause most counsel to make the admission.

PROOF OF OTHER CPIEs

With respect to the proof of other crimes, thegeneral rule in the United States, as stated byMcCormick, is:

"The prosecution may not introduce evidenceof other criminal acts of the accused unless theevidence is substantially relevant for someother purpose than to show a probability thathe committed the crime on trial because he is aman of criminal character. There are numerousother purposes for which evidence of othercriminal acts may be offered, and when sooffered the rule of exclusion is simplyinapplicable."

20

Where the prosecutor seeks to introduce evidenceof defendant's other crimes for a purpose otherthan to show a propensity to commit crime, defensecounsel may often prevent him from doing so bymeans of a judicial admission. Whether defensecounsel may do so is determined by the theory ofadmissibility upon which the prosecutor relies,and by the nature of the defense.

One of the exceptions to the general rule ofexclusion exists where proof of similar crimes islarge screen of colored slides showing nude body ofvictim in morgue, autopsy incisions clearly visible,error where no issue existed as to cause of death ordetails of wounds); Chapman v. State, 66 Tex. Cr.489, 147 S.W. 580 (1912) (exhibition of actual woundsof assault victim error where they proved nothing notalready known).19 109 Cal. App. 2d 524, 241 P.2d 308 (1952).20 McCoxuscK, EVIDENCE §157, at 327 (1954). See

also 1 WIG ORE, EVMENCE §215 (3d ed. 1940).

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introduced "to show... that the act on trialwas not inadvertent, accidental, unintentional orwithout guilty knowledge." 21 The issue, however,must not be a specious one. There must actuallybe a doubt as to the circumstances of the act saidto constitute the crime. In People v. Molineauxthe New York Court of Appeals stated:

"It would be a travesty upon our jurispru-dence to hold that, in a case of such appallingand transparent criminality, it could. ever bedeemed necessary or proper to resort to proofof extraneous crimes to anticipate the impossibledefense of accident or mistake."12

However, where there may be a substantial doubtas to the intent of the defendant in committing theact charged, such evidence is admissible for thepurpose mentioned.

Where the prosecutor proposes to introduce suchevidence to prove the required intent, thedefendant may, under the authority of certaincases to be discussed, resort to a judicial admission,stipulating that if the act was done, it was donewith the requisite criminal intent (or guiltyknowledge). Once this admission has been made,proof of the similar acts is unnecessary and there-fore prejudicial. And, of course, the only remaininglogical connection between similar acts and com-mission of the act charged is the tendency of theformer to show a propensity to crime-a forbiddeninference unless the defendant first introducesevidenc6 of his good character. Thus, an admissionthat if the act was done it was done with thenecessary mens rea should, logically and fairly,prevent all proof of the similar acts.

Where such an admission is made, however, inmost states the defendant should not become awitness in his own behalf. For if the defendantbecomes a witness, his previous crimes will, inmost states, become admissible as bearing uponhis credibility. Thus, he will have kept them outwhen they were to be used for one purpose, onlyto see them introduced for another, and the jurymay misuse the evidence in precisely the sameway. However, in those states which allow onlycertain crimes to be used for impeachment pur-po ses,2 defendant may often be able to stipulateand testify as well.

21 McCoic], tviDNcE §157, at 329 (1954)168 N.Y. 264, 305, 61 N.E. 286, 298-99 (1901).

See also State v. Giligan, 92 Conn. 526, 103 At. 649(1918).

23 See 3 WIGOORE, EviDENCE §980 (3d ed. 1940);McCoRucK, EvmIENCE §43 (1954).

An example of an admission of this type is foundin State v. Vance, 4 which involved a convictionfor indecent exposure. At the trial, the prosecutorattempted to prove previous indecent exposures inorder to negative accident and prove intent.Defendant objected, and admitted in open courtthat if the act was done, it was designedly done.The evidence was admitted. On appeal, introduc-tion of the evidence was held reversible error,even though the court had instructed the jury asto its proper use. There was no issue of mistake,said the court, and even if mistake or intent hadbeen an issue, defendant's admissionhad removed itfrom the case.

In State v. Strum,25 a similar decision wasrendered. There, the Iowa Supreme Court heldthat, in a prosecution for knowingly receivingstolen goods, defendant's admission that whateverhe did was done designedly and with knowledgewas sufficient to require exclusion of the pro-secutor's evidence that defendant had receivedother stolen goods not related to the transactionfor which he was on trial.

Unfortunately, the Vance and Strum cases werediscredited by State v. Kappen.2 There, in a pros-ecution for the possession of barglar's tools, theprosecutor refrained from showing prior crimes,relying on the defendant's stipulation that if hehad actually possessed the tools, he had done sowith a burglarious intent, and not by accident.The judge, relying on the rule of the Vance andStrum cases, had accepted the admission andprevented the proof of previous burglaries. Onappeal, the defendant reversed his position andclaimed that the evidence was insufficient toconvict, because there was no proof of intent.The court quite correctly held thaf defendant wasbound by his admission, for it was the admissionalone which caused the prosecutor to withholdhis proof. The defendant was precluded fromstating that his admission was less effective thanwould have been the proof which the admissionobviated.

Had the court stopped here, no one could findfault with its decision. But it continued, andspecifically disapproved the rule of the Strumcase in these words:

"No admission should be deemed to controlthe sound discretion of the court to permit

2 119 Iowa 685, 94 N.W. 204 (1903).25 184 Iowa 1165, 169 N.W. 373 (1918).26 191 Iowa 19, 180 N.W. 307 (1920).

PATRICK M. WALL

evidence otherwise admissible. Much less shoulda hypothetical admission have such effect." 27

There was a strong dissent by Salinger, J., whichdeserves extensive quotation not only because ofits logic, but also because it makes a well-meritedbut seldom heard criticism of prosecutors whomisuse such dangerous evidence. Judge Salingerstated:

"It was confessed in the Strum case that suchevidence is admissible for nothing except toshow guilty knowledge. And it was thereuponheld that there could be no legitimate reasonfor forcing such evidence upon the considerationof an untrained jury, when its only properpurpose was to prove what was confessed. It isnow said that there should be a discretion asto whether such testimony... should be re-ceived. Why? For whom, and for what, shouldsuch discretion be permitted? For use by justone kind of lawyer. The sort of lawyer that wouldput [such testimony] in evidence.., on thepretense that it was done to prove intent,although he knew intent was confessed, thepurpose being in fact the hope that the jurywould treat this evidence, not as mere evidenceof intent, but as tending to prove that theparticular.. . [crime] charged in the indictmenthad been... [committed]. Decisions of this

court which leave to the state every legitimateright it has should not be overruled to givepettifoggers a chance to which they are notentitled-a chance to take away liberty wrong-fully because juries reason as juries do." 28

The logic of these words is unassailable and wouldapply to almost all instances where a judicialadmission is proper.2

In Commonwealth v. Miller,30 defendant hadbeen convicted of passing three forged notes. Atthe trial, the prosecutor, for the purpose of provingguilty knowledge and the forgery itself, sought tointroduce 30 other notes passed by defendant atabout the time the three notes were passed, andalso alleged to be forgeries. The defendant stipu-lated that he passed the three notes mentioned inthe indictment, and that if they were forgeries, heknew them to be so. The trial judge stated thatconsidering the peculiar characteristics of the

27Id. at 29, 180 N.W. at 312.28 Id. at 34-35, 180 N.W. at 314.2 Nevertheless, Iowa courts still follow the rule of

the Kappen case. See, e.g., State v. Simpson, 243 Iowa65, 50 N.W.2d 601 (1951).30 57 Mass. (3 Cush.) 243 (1849).

alleged forgery, it would aid the jury to see othernotes passed by him at about the same time, andalleged to have been forged in the same manner,and thus the evidence was admissible for thispurpose despite the defendant's admission. Thepurpose of showing guilty knowledge was notdiscussed by the judge, but it is clear that if suchwas the sole purpose the evidence should havebeen excluded.

Assuming a strong similarity between themethods used in forging the two sets of notes, thejudge ruled quite correctly, for as McCormick hasstated, it is permissible for the prosecutor "toprove other like crimes by the accused so nearlyidentical in method as to earmark them as thehandiwork of the accused." 31 No admission couldhave been made by defendant except one concedingthe very fact he wished to exclude. On appeal,however, the Supreme Court of Massachusettsaffirmed on the ground that the checks wereadmissible to prove guilty knowledge despitedefendant's admission, upon which, said the court,the prosecutor was not required to rely.

People v. Sindicai is quite similar to the Millercase. There, in a prosecution for forgery, defendantoffered to stipulate that if he had signed his nameto the check in question, he did so with an intentto defraud. The prosecutor was neverthelessallowed to show other fraudulent checks issued atabout the same time and endorsed by defendant.On appeal, the California District Court of Appealheld the evidence admissible either to prove intentor to show the existence of a common scheme orplan.n The California Supreme Court, in a percuriam decision, denied a hearing, stating that theevidence was proper to show a common scheme,but that it would express no opinion as to theadmissibility of the evidence for the purpose ofproving intent. Although the admission shouldhave removed the issue of intent from the case,it was quite correct to hold that the -admissioncould not exclude evidence aimed at proving acommon scheme.

In State v. Morgan,3 a similar issue was presentedand, it is submitted, erroneously decided.Defendant was convicted of incest committed with

a' McComcK, EvmENcE §157, at 328 (1954).2 54 Cal. App. 193, 201 Pac. 975 (1921).3 McCopm c, EvmENcE §157, at 328 (1954), states

that proof of prior crimes is permissible where thepurpose is "to prove the- existence of a larger con-tinuing plan, scheme, or conspiracy, of which thepresent crime on trial is a part."

42 S.D. 517, 176 N.W. 35 (1920).

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his niece in S6uth Dakota, where the trial tookplace. During the course of the trial, the prosecutorwished to prove that immediately prior to thecommission of the crime in South Dakota, defend-ant had committed incest with that same niece inColorado. The purpose of the evidence of the priorcrime was "to show a passion or propensity forillicit sexual relations with the particular personconcerned in the crime on trial."'35 Defendantformally admitted that at the previous -time andplace mentioned by the prosecutor he was co-habiting with his niece, knowing of her relation-ship to him. Despite this admission, the prosecutorwas allowed to prove the very same fact by meansof letters written by defendant to his niece'sparents. The letters were highly prejudicial to thedefendant because in them he not only admittedcohabiting with his niece in Colorado but alsodared the parents to do something about it. Onappeal, admission of the letters was held proper.The court stated that the reasoning of the Strumcase did not apply, for there the proffered evidencerelated only to the question of intent, while inthe instant case the evidence went to the issueof whether the crime had in fact been committed.This, of course, makes no sense at all, for thedefendant's formal admission also went to thatsame issue, by conceding a fact tending to provethe commission of the crime, and indeed the samefact which the letters tended to prove. The onlypossibld justification for admitting the letters wasthat the defendant's defiance made it more likelythat he would persist in his conduct (i.e., untilhe reached South Dakota) than if the letters hadbeen of a merely informative nature. This, how-ever, was not mentioned by the court. And, con-sidering the admission, it is quite doubtful whetherthe value of admitting the letters even for thatpurpose would have been so great as to justify theplacing of such prejudicial matter before the jury.

However, in People v. Washburn,36 evidence of aprior offense offered- for the purpose of provingguilty knowledge was held improperly receivedwhere the defendant had made an admissionindicating that he would rely not upon a claim ofa lack of the requisite knowledge, but only upon adenial of the act charged.

Under another theory, evidence of other crimesis admissible to show that defendant had a motive

35 McCoRMIcK, EVIDENCE §157, at 328-29 (1954).36 104 Cal. App. 662, 286 Pac. 711 (1930).

to commit the crime charged.37 The efficacy of ajudicial admission to preclude proof for such apurpose is doubtful, for it may be quite importantfor a jury to be able to estimate the strength of themotive. In People v. -Scheck,38 for example, theaccused in a murder prosecution offered to stipu-late that at the time he was alleged to have killeda policeman, he was "under indictment," andtherefore possessed a motive to kill. Despite thisoffer to stipulate, the prosecutor was allowed toprove that at the time of the crime, the accused wasurider indictment for murder and robbery. Theadmission of this proof was upheld on appeal, thecourt emphasizing that the nature of the indict-ment was important, for the strength of the motiveto kill in order to avoid arrest depended largelyupon the seriousness of the crime for which thearrest was to be made. One is not likely to killin order to avoid arrest for a petty offense. Thecourt's logic seems unassailable on this issue,although the facts of the case so overwhelminglyproved the defendant's guilt that the trial judgemight reasonably have excluded the proof ofmotive as unnecessary.

Similarly, in McHenry v. United States, it washeld proper to reject an accused's admission thatat the time he was alleged to have murdered apoliceman in order to avoid arrest, he wassuspected of a felony and that therefore the police-man had a right of arrest. Further, it was heldproper to allow the prosecutor to show that thefelony referred to was murder, and that defendanthad actually committed it.

However, even in the absence of an admission,it has been held reversible error to allow proof ofprior crimes to establish a motive already fullyestablished by other proof.40 This seems a fairdecision, but except in such a case, where motivehas already been established, it appears that priorcrimes will remain admissible where they tend toshow a motive. The nature of the concept ofmotive precludes recourse, in most cases, to ajudicial admission.

Evidence of other crimes may also be introducedwhere they tend to prove consciousness of guilt.4'Thus it is permissible to show that after the crimecharged was committed, defendant committed

3 McCopmcx, EVIDENCE §157, at 330 (1954).356 Ill. 56, 190 N.E. 108 (1934).

- 276 Fed. 761 (D.C. Cir. 1921).40 People v. Mangano, 375 Ill. 72, 30 N.E.2d 428

(940).41 McCopMcx, EVIDENCE §157, at 330 (1954).

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certain other crimes while fleeing or that hemurdered the only eye-witness to the crimecharged. 3 A judicial admission is useless where thedamaging evidence tends to prove consciousnessof guilt, for the defendant must either admit thecommission of other crimes or his consciousness ofguilt, thus keeping nothing prejudicial away fromthe jury." The only possible exception wouldoccur in the rare case where defendant claims hewas in error in thinking he had committed thecrime. Under such circumstances he should stipu-late to consciousness of guilt and seek to preventthe then unnecessary proof thereof.

Another accepted reason for introducing evi-dence of other crimes is to prove the identity of theaccused.45 This may b6 done in a number of ways,but two should serve as examples for our purposehere. First, the prosecutor may wish to show thatthe crime charged was committed in an unusualand distinctive manner identical with the methoddefendant used in committing other crimes.46

Here, it would seem that no judicial admissioncould possibly preclude the proof. An admissionthat the method used in the crime charged is theone that defendant would have used had he com-mitted the crime simply does not admit all thatthe prosecutor may licitly prove, and any strongeradmission would have to include acknowledg-ment of the other crimes.

A second method of proving identity is by theintroduction of evidence connecting defendantwith a weapon used during the clime charged.Most often, the state will merely prove purchaseof the weapon by defendant, and no judicialadmission is available. However, the state willoccasionally attempt a method of proof involvingother crimes, and defendant then should be able toresort successfully to a stipulation. For example,in Slate v. Creighlton,47 the prosecutor sought toprove defendant's possession of the murder weapon

42People v. Johnson, 286 Ill. 108, 121 N.E. 246(1918).

43 People v. Spaulding, 309 Ill. 292, 14i N.E. 196(1923).

44 See, e.g., Shelton v. United States, 169 F.2d 665(D.C. Cir.), cert. denied, 335 U.S. 834 (1948), whereevidence of defendant's flight was held properly re-ceived, even though he admitted flight. It is difficultto understand what defendant hoped to gain by theadmission, or what prejudice could have been createdby the mere proof of what he had conceded. For asimilar case, see People v. Fredericks, 106 Cal. 554,39 Pac. 944 (1895).

46 McCoRmcx, EvmENcE §157, at 330 (1954).11 Id. at 328.47330 Mo. 1176, 52 S.W.2d 556 (1932).

by the testimony of a policeman who stated thatthe weapon was his own, but that when he hadattempted previously to arrest the defendant fora bank robbery, the defendant had taken the gunfrom him. Although the defendant stated he wouldnot deny that he had committed the crime chargedwith that particular weapon (if indeed he hadcommitted the crime), the judge agreed with theprosecutor's contention that the state had a rightto prove every element of the crime as it saw fit,and allowed the introduction of the testimony.The decision was reversed on appeal, the courtstating that the proof would have been proper haddefendant's possession of the weapon been inissue, but was improper in the face of the admis-sion. It should be noted that the admission neednot have gone so far. A mere stipulation by defend-ant that he had come into possession of the weaponon a particular date (mentioning the date whenit was taken from the policeman) would havesufficed to prevent the testimony, according to thereasoning of the court:

Occasionally, a prosecutor will attempt toconvey to the jury the fact that defendant hascommitted other crimes without actually introduc-ing proof of the crimes themselves under anyexception to the general rule of exclusion. Forexample, in the murder trial popularly known asthe "Reader's Digest Murder Case," the districtattorney wished to show that the crime was theresult of a plan of long standing. Under the theorythat it was relevant to show the time and place ofthe inception of the plan, the judge allowed proofthat one defendant commenced his plot while injail--obviously for some other offense. 48 No judi-cial admission was made, but if defendant had stip-ulated that the plot was of long-standing (evengiving the date of its inception), could it be reason-ably held that mention of the place where theplot began was not improper?

In another case," where the defendant's identitywas in issue, the prosecutor introduced a witnesswho claimed he knew defendant. (The witness wasan official of a prison in which defendant hadpreviously served a sentence for another crime.)Although sustaining an objection to a questioncalling for defendant's status at the time thewitness knew him, the witness was allowed, overobjection, to relate that his oun status had been

4QOURSLE, T E READER'S DIGEST MURDER CASE242 (1952).

49 State v. Bartlett, 55 Me. 200 (1867).

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that of a prison official. No doubt the jury caughtthe point, despite the necessity of drawing anall-too-obvious inference. The ruling was upheld.No-admission was made that the witness actuallyknew the defendant, but it is submitted that hadit been done, it would have been highly improperfor the court to allow the witness to mention whathis status had been when he became acquaintedwith defendant.

Moreover, suppose that during the course of atrial it becomes important to determine whetherthe accused knew how to operate a particular typeof machine. If the defendant stipulates as to hisability, can it fairly be said that the prosecutormay properly reject the admission and prove thatdefendant actually operated such a machine at aprison workshop? The language used in some of thecases already cited would give the prosecutorthe right to do just that, although such a course ofaction involves unfairness of the grossest sort.

Stipulations have often been attempted inprosecutions under the various Habitual OffenderActs, many of which either allow or require theinclusion of prior convictions in the indictmentand their proof upon trial. The procedure mostoften followed by defense counsel is to offer toadmit the prior crimes out of the presence of thejury, and to ask the judge to inflict the heavierpenalty if the verdict is guilty or, if the jury fixesthe penalty, to charge the jury only as to theheavier penalty. The judges' invariable refusal toaccept the admission has been invariably upheldby the courts. 5 Proof of prior crimes for thispurpose, however, has recently come under attackas violative of due process. In United States v.Price,51 the constitutionality of the procedure wasupheld by a divided court, although CircuitJudge Hastie, in a concurring opinion, stated:

"I am unable to avoid the conclusion that aprocedure so likely to prejudice the accusedand at the same time so easy to avoid without

50 See, e.g., Berry v. State, 51 Ga. App. 442, 180 S.E.635 (1935). It is encouraging to note, however, that in1959 the New York State District Attorneys' Associa-tion introduced and sponsored a bill "which wouldprohibit the district attorney from alluding to theprevious conviction if the defendant would admit thesame on the court record outside of- the hearing of thejury." Silver, The Wiretapping-Eavesdropping Problem:A Prosecutor's View, 44 MirN. L. Rxv. 835, 851, 852n.59 (1960). This solution to the problem is now in-cluded in N. Y. CODE CRas. PRoc. §275-b.

51258 F.2d 918 (3d Cir.), cert. denied, 358 U.S.922 (1958).

the sacrifice of any interest of the state is funda-mentally unfair." 2

In stating that the prejudicial procedure was"easy to avoid," Judge Hastie was referring to themethod used in some states of having a "separatetrial" on the question of punishment after thefinding of a verdict of guilty." Such a procedureclearly removes all due process objections. Inthe absence of statutory authority for such aprocedure, however, fairness can be assured byreliance upon a judicial admission such as thetype already mentioned.

QuAnrmcAIoNs op EXPERT WrnmxssEs

Where a witness for the prosecution is an expertof eminent qualifications, the defendant may seekto prevent the experience and ability of the expertfrom becoming known to the jury by stipulatingthat the witness is qualified to give his opinion.If such an admission were allowed to preventproof of qualification, a great disservice wouldbe done to the jury, who would then often bewithout proper means to judge between conflictingopinions on a subject of which they may be com-pletely ignorant. Moreover, it would sometimesprevent a jury which must determine a questionof sanity from learning that one expert is a quali-fied psychiatrist, while the other is a doctor with nopsychiatric experience. Such results are dearly tobe avoided.

In dealing wiLh this issue, an Assistant UnitedStates Attorney has stated:

"The qualifications of the prosecution psychia-trist should never be stipulated. Juries areextremely interested in the qualifications ofexpert witnesses. The prosecution psychiatristshould testify as to his educational backgroundand experience in great detail."04

Here, the jury's interest must be satisfied. Thereis already too much seriously wrong with oursystem of expert evidence to allow a proceduredepriving the jury of information necessary for aproper evaluation of the expert's opinion.

On occasion, however, these considerations havebeen ignored. In State v. Douglas,5 5 a prosecution

258 F.2d at 923.5 See, e.g., PA. STAT. ANN. tit. 18, §4701 (Supp.

1959).0 Flannery, Meeting the Insanity Defense, 51 J.Cnms. L., C. & P.S. 309, 314 (1960). See also Bowler,Oral Argument in Criminal Prosecution, 52 J. Cm. L.,C. & P.S. 203, 207 (1961).

55 78 R.I. 60, 78 A.2d 850 (1951).

PATRICK M. WALL

for cruelty to animals, the defendant called aveterinarian to the stand. The prosecutor admittedthat the witness was a qualified expert, and thenobjected when counsel sought to elicit the qualifica-tions of the witness. The judge sustained theobjection and prevented proof of qualifications,even though the prosecution experts had notbeen veterinarians, but merely people with longpractical experience in the handling of animals.On appeal, the conviction was affirmed. The courtstated that the purpose of evidence concerningqualifications is to enable the judge to pass uponthe competency of the expert. If competency isadmitted, nothing further is gained by additionalquestions. This reasoning, dearly erroneous, hasrarely been followed elsewhere.

PREVENTION OF UNDUE SYMPATHY

No jury can truly immunize itself from feelingsof sympathy for the relatives of tile victim of ahomicide. Yet, if the accused is to receive a fairtrial, these feelings should be kept out of thetrial as completely as possible. Occasionally,however, a prosecutor will seek to play upon suchemotions by placing the victim's kin on the standunnecessarily, or by indirectly placing the grief ofthe relatives before the jury by the introductionof other evidence. Because of the great danger ofprejudice, one would suspect that the policy of thecourts would be to discourage such conduct. Often,however, the courts have done exactly the opposite.

In State v. Seyboldt,6 the court allowed theprosecutor to place the victim's widow on thestand for the sole purpose of identifying thevictim's watch, which had been stolen, despite thefact that defendant had admitted the identityof the watch. On appeal, the ruling was upheld.57

In People v. MacPherson,"' the court upheld ajudge's ruling which permitted the prosecutor toplace the victim's widow upon, the stand, mainlyfor the purpose of proving that her husband wasalive prior to the automobile collision which wasthe foundation of the crime charged, despitedefendant's stipulation of that fact. The courtstated that no admission can preclude theprosecutor from offering competent evidence. In

56 65 Utah 204, 236 Pac. 225 (1925).57 See also State v. Thorne, 41 Utah 414, 126 Pac.

286 (1912), where no error was found in permitting aprosecutor to place upon the stand the victim's mother,whose testimony was so irrelevant that, upon comple-tion, it was stricken from the record.

"323 Mich. 438, 35 N.W.2d 376 (1949).

cases similar to these, courts would earn greaterrespect by seeing through the rather transparentconduct of the prosecutor, and by allowing theadmission to prevent him from pursuing a courseof action which his own sense of propriety shouldhave forbidden.

In People v. Parisi," the prosecutor was allowedto introduce the dying declaration of the homicidevictim, despite the defendant's admission thathe had committed the crime. Normally, the in-troducti'on of a dying declaration will not prejudiceone who has admitted the crime, because of therule that "the declarations are admissible onlyinsofar as they relate to the circumstances of thekilling and to the events more or less nearly preced-ing it in time and leading up to it."' 0 Here, how-ever, the declaration as introduced referred to thevictim's "poor little children" and other matterscalculated to arouse the sympathies of the jury.On appeal, the court relied on the argument thatno admission can limit the prosecutor in deter-mining how to prove his case, and affirmed theimposition of the death penalty.

EVIDENCE OF DEFENDANT'S REPUTATION

It has been stated as "generally agreed thatthe accused in all criminal cases may produceevidence of his good character as substantiveevidence of his innocence."'6" In order to prevent aparade of witnesses as to defendant's good reputa-tion for a particular quality (e.g., peacefulness,in murder prosecutions), prosecutors have occasion-ally admitted that the defendant's reputation wasgood, and have thereby succeeded in precludingthe testimony of the character witnesses. Such aprocedure has been upheld by some courts. 62

In theory, none of defendant's rights is deniedby such a preclusion, for the prosecutor hasadmitted all that the testimony would tend toprove. Again in theory, the identity of the char-acter witness is irrelevant, as his purpose is merelyto convey the opinion of the community, and nothis own.61 In practice, however, the identity ofthe witness may play an important role, and it isfar more advantageous to the defendant to have,

"190 Cal. 542, 213 Pac. 968 (1923).60 McCosrxcx, EVIDENCE §260, at 558 (1954). See

also 5 WIGiORE, EVIDENCE §1344 (3d ed. 1940).61 McCoRMcK. EVIDENCE §158, at 333 (1054).12 See, e.g., Davis v. State, 106 Tex. Cr. 46, 290

S.W. 163 (1927); Bowlin v. State, 93 Tex. Cr. 452,248 S.W. 396 (1923).

6See McCoRmcK, EVIDENCE §158, at 334 (1954).

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as character witnesses, prominent and respectedpersons, rather than unknowns. Perhaps it is thisrealistic consideration which has caused some trialjudges, in precluding character witnesses afteran admission by the prosecutor, to mention to thejury the names of the witnesses whose characterevidence is being excluded," and which has per-suaded some appellate courts to prevent such anexclusion altogether."5

METHOD OF MAKING JTuDIcIAL ADMSSIONS

When defense counsel wishes to exclude proof,under proper circumstances, by means of a judicialadmission, he must follow certain procedures,lest the admission be held to have no effect. First,the admission should be made formally in opencourt during the course of the trial, and its purpose(the exclusion of proof) should be stated. As apractical matter this is almost always done, if onlyin making an objection to the introduction by theprosecutor of the evidence which the admissionwas intended to exclude.

Of crucial importance is the reauirement thatdefendant admit the fad itsel, and not merely thatthe witness would testify to the fact, for exclusionof the proof would deprive the jury of the op-portunity to judge the credibility of the witnessby his appearance and demeanor. If an admissioncould merely keep a witness from the stand, thejury would have no way of determining whetherto believe what they are informed he would havesaid. Thus, to give effect to a mere admission as towhat a witness would say would unconscionablydeprive the proponent of the witness of his rightto present and prove his case. It is certain thatsuch an "admission" has no effect,"6 althoughoccasionally there is some confused thinking on thepoint." The admission must be at least as broadas the relevant proof would have been,1 and it

"See Bowlin v. State, supra note 62. But a latercase in the same state has upheld a trial judge's refusalto give the names to the jury. Griffith v. State, 145 Tex.Cr. 465, 169 S.W.2d 173 (1943).

65 People v. Helms, '243 App. Div. 818, 278 N.Y.Supp. 366 (2d Dept. 1935) (per curiam).

"6 See State v. Boyer, 342 Mo. 64, 112 S.W.2d 575(1937).

67 See, e.g., People v. Newman, 102 Cal. App. 2d302, 227 P.2d 470 (1951). In that case, involving arobbery prosecution, defendant wyas said to havewaived proof that a lethal weapon was used in therobbery by his counsel's statement that certain wit-nesses would testify that they had been robbed bypersons armed with deadly weapons.

"See McHenry v. United States, 276 Fed. 761(D.C. Cir. 1921); State v. Griffen, 218 Iowa 1301, 254N.W. 841 (1934).

will be held ineffective if made only after the factsought to be excluded has been proved.6 A merefailure to object is obviously not a formal judicialadmission.7 0 But it appears that a statement of awitness may effect an admission by the witness'sproponent.7'

CONCLUSIONS

In deciding upon the issue under consideration,courts have demonstrated a wide divergence ofviewpoints. Some have simply denied that anadmission may ever exclude proof in a criminalcase.7' Occasionally, the adversary system is usedas a justification, as where one court stated thatan offer to admit can be rejected by the prosecutor,who need not "accept the judgment of a strangerto the office." 7 3 And a defendant's request thatcertain prejudicial matters be excluded by hisadmission is occasionally denied on tfe groundsthat he has a right to force the state to prove everyelement of the crime with which he is charged; 74

the accused is then in the strange position ofhaving a right to insist on being unnecessarilyprejudiced. The automatic denial of the right topreclude the introduction of evidence by means ofstipulation is the result of a judicial formalismattuned to times and places other than our own.A court which rigidly adheres to such an attitude

"People v. Palumbo, 127 Cal. App. 703, 16 P.2d316 (1932); State v. Farley, 48 Wash. 2d 11, 290 P.2d987 (1955), cerl. denied, 352 U.S. 858 (1956).

70 Housman v. State, 155 Tex. Cr. 49, 230 S.W.2d541 (1950).7 ' For an example of this sort of admission in a civilcase, see Hopper v. Comfort Coal-Lumber Co., 276App. Div. 1014, 95 N.Y.S.2d 318 (2d Dept. 1950).There, in an action for negligence, defendant intro-duced a witness who admitted that he was a paidinvestigator .acting in the interest and on behalf ofdefendant. On cross-examination, plaintiff was allowed,over objection, to elicit the further fact that the witnesswas an investigator for an insurance company. Ordi-narily, such evidence would be admissible as showingpossible bias, despite the highly prejudicial element ofallowing the jury to learn that defendant is insured.However, on appeal, the verdict for plaintiff was re-versed in a 3-2 decision. The majority stated that"this employment could not possibly serve to show agreater interest than the admitted status of the witnessas a paid investigator for the defendant itself. It servedonly to bring the element of insurance before thejury." 276 App. Div. at 1014, 95 N.Y.S.2d at 319.

72 See People v. Del Prete, 364 Ill. 376, 4 N.E.2d484 (1936); State v. Griffen, 218 Iowa 1301, 254 N.W.841 (1934).

3 People v. Pollock, 25 Cal. App. 2d 440, 444, 77P.2d 885, 887 (1938).71 People v. Ruiz, 403 Ill. 295, 86 N.E.2d 247 (1949).

See also State v. Leitzke, 206 Iowa 365, 218 N.W. 936(1928), where the court stated that admissions cannotdo away with the presumption of innocence.

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PATRICK M. WALL

must soon realize that in so doing it is often allow-ing the indirect evasion of rules of evidence which,no doubt, it enforces just as rigidly on otheroccasions.

Other decisions reject admissions for far morerational reasons, perhaps best expressed in thefollowing words of the Maine Supreme Court:

"It does not lie in the power of one party toprevent the introduction of relevant evidenceby admitting in general terms the fact whichsuch evidence tends to prove, if the presidingjustice, in his discretion, deemed it proper toreceive it. Parties, as a general rule, are entitledto prove the essential facts,--to present to thejury a picture of the events relied upon. Tosubstitute for such a picture a naked admissionmight have the effect to rob the evidence ofmuch of its fair and legitimate weight." 75

Later courts have echoed these ideas, and haveupheld a trial judge's refusal to accept a stipula-tion.76 Not all courts have agreed, however. InDavis v. State7 it was stated that:

"The purpose of introducing evidence uponany issue is to establish as a fact the matterstestified to by the witnesses. If the oppositeparty admits unqualifiedly in open court thetruth of the matter sought to be established,nothing can be added to it by testimony."78

As a general rule, the attitude of the Davis caseappears the more realistic, especially when oneexamines some of the issues on which stipulationshave been made and is able to determine just howeffective an admission would be.

Still other decisions have, either explicitly orimplicitly, recognized the general right to excludeprejudicial evidence by admission but have, ineffect, denied the right by finding some issue,

75 Dunning v. Maine Central R.R., 91 Me. 87. 97.39 Atl. 352, 356 (1897).

76 See, e.g., State v. Evans, 145 Wash. 4, 15, 258 Pac.845, 849-50 (1927), where the court stated that "facts,when admitted, frequently lose their probative ef-fect. ... "

7 106 Tex. Cr. 46, 48, 290 S.W. 163, 164 (1927)(on motion for rehearing).

78 See also Griffith v. State, 145 Tex. Cr. 465, 467,169 S.W.2d 173, 174 (1943).

often specious, upon which the evidence is relevant,and which, so it is said, has become controvertedby the plea of not guilty. No better answer to thisattitude has been found than that contained inthe following words of Lord Sumner:

"Before an issue can be said to be raised, whichwould permit the introduction of such evidenceso obviously prejudicial to the accused, it musthave been raised in substance if not in so manywords, and the issue so raised must be one towhich the prejudicial evidence is relevant. Themere theory that a plea of not guilty putseverything material in issue is not enough forthis purpose. The prosecution cannot credit theaccused with fancy defences in order to rebutthem at the outset with some damning piece ofprejudice." 79

This creation of issues by the court may sometimespresent the defendant with a situation in whichno effective admission can be made.

It is submitted- that the proper judicial attitudeis found in those cases which grant to the accusedthe right to exclude relevant but prejudicialmaterial by a proper stipulation. The argumentsopposed are, in the main, too doctrinaire and tooindifferent to subtleties of thought to find a re-spected place in the administration of criminaljustice. And although the avoidance of unnecessaryprejudice is a sufficient reason in itself to giveeffect to judicial admissions, an even more persua-sive reason exists; it will greatly decrease a practiceindulged in by some prosecutors which can onlycause disrespect for law-the introduction ofprejudicial evidence ostensibly for a proper purposebut actually with the knowledge, and sometimesthe desire, that it will be improperly used by thejury. It is to be hoped, therefore, that defensecounsel will make increasing use of judicial admis-sions on the proper occasions, dnd that if pro-secutors will not accept these admissions, thecourts will eventually inform them that theymust.

79 Thompson v. The King, [1918] A.C. 221, 232. Seealso State v. Gilligan, 92 Conn. 526, 537-38, 103 Atl.649, 653 (1918); People v. Molineaux, 168 N.Y. 264,305, 61 N.E. 286, 298-99 (1901).

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