Monday, December 12, 2011

Does It Always Stay in Your Past?

"I guess some mistakes we never stop paying for."  Roy Hobbs shared this bit of wisdom in The Natural (bonus points if you can name the stadium it was filmed in).

What about a prior conviction?  How does that affect a criminal case?  Can the prosecution bring it out at trial?  What if the victim has a bad record?  Or a witness?

This post discusses the three ways a prior conviction affects a defendant in a case.

1) Sentencing

If a defendant has a felony conviction within ten years before his current charge, the sentencing range can be increased.  An example of how this works:

Bob was convicted of illegal gun possession in 2004.  He served two years.  In 2011, he commits a robbery with a gun.  This time it's robbery in the first degree.  Without the prior conviction, he faced a range of 5 to 25 year in jail.  With the prior conviction, he now faces a range of 10-25.

If he had two prior violent felonies?  He'd be facing a minimum of 20 years with lifetime parole.

The sentences are increased for repeat offenders.  However, the cut off to use a prior conviction to elevate a crime is usually ten years.  Meaning, that if Bob's gun conviction was in 1998, it could not be used to elevate his sentencing range in 2011.

2) Can it be used as evidence at trial?

Here we are talking about the prosecution's case, not the defense case.  Generally, the prosecution is not allowed to put evidence before the jury that the defendant was convicted of a crime.

The law says it's probative value is far outweighed by its prejudicial effect.  What?  In layman's terms - the jury will be more likely to convict a person they think is already a convicted felon, no matter what the proof is in the current case.

The prosecution must prove their case based on evidence of the current charges.  The court does not allow proclivity evidence.  No evidence that says "once a criminal, always a criminal."

There are certain situations when we are allowed to prove the defendant has previous convictions during our case.  Elevated crimes are crimes that are felonies solely because the defendant has a previous conviction.

Thus, a misdemeanor DWI becomes a felony if the defendant has a prior DWI in the last ten years.  Possessing an unregistered, unloaded gun becomes a felony if the defendant has been convicted of any previous crime.

In prosecuting these cases, we must prove to the jury beyond a reasonable doubt that the defendant currently on trial is the same defendant convicted of the prior offense.  It is an element of the crime.  The jury then hears evidence the defendant is a convict and we use fingerprint comparisons to show his current prints are the same as his prints from the prior case.

Smart defense attorneys concede this element outside the presence of the jury, so the jurors never hear about it and we're not allowed to discuss it.

3) When the defendant testifies

So, we're not allowed to get into a defendant's criminal past.  What about this situation?  As a prosecutor, you sit there and watch the defendant testify waiting for an opportunity to cross-examine him.  On the stand Bob, who's charged with that pesky gun point robbery, tells the jury he's never touched a gun in his life.

In your hands you hold his criminal history displaying his plea of guilty to possessing a gun a few years ago.  But, you're not allowed to talk about his criminal history.  What happens?  Admit defeat?  The jury leaves without the whole picture of the defendant?  They acquit based on a lie?

Not at all.  Prior to the defendant testifying (usually prior to jury selection) the court listens to arguments on whether the prosecution can question the defendant about his criminal past if he testifies.  It's called a Sandoval hearing.  The defense attorney argues that asking his client about prior convictions will be too prejudicial to him and will force him to reconsider testifying, a constitutional right.

The prosecution argues that the convictions are relevant on the issue of the defendant's credibility.  Without giving the jury a full picture of the defendant, they will inflate his credibility.  He cannot use the fact he is a prior felon as an impenetrable shield when testifying.

The court generally issues a compromise - we are allowed to ask the defendant if he's ever been convicted of a crime or a felony, but not allowed to ask about the facts underlying the conviction.

What about Bob who lied on the stand?  Well, that is what we call "opening the door" to specific questions about his criminal past.  It's the moment trial lawyers wait for.  The court will allow the prosecution to ask specific convictions about the old conviction because he opened the door by lying.  Then we get to slam it in his face.

Should the prosecution be allowed to ask questions about prior convictions?  Should the jury know?

Check out a post later this week about the use of a witness's criminal history at trial.


  1. Wow! What an awesome post. That answers so many questions for me. Actually I think the ten year rule is pretty fair but on the whole, in my opinion prior convictions should be something the jury knows about. I mean it's a matter of public record anyway. I know there is the whole prejudicial thing but really, it just feels like the Court goes to great length to hide something that any juror could probably just Google--or find using the appropriate resources. I mean I realize that a jury is only responsible for convicting or acquitting a defendant based on the crime at hand but I can't stop thinking of all those cases where a person murders someone and then we find out they had a very long list of priors for less serious offense. Clearly they were building up to something and showing a pattern of behavior. I think all of that should be taken into account.

    1. ya but with if people try to frame people with priors for murder and other things and get away Scott free.

  2. Thanks Lisa. The jurors are always under strict instructions to base their decision only on what happens in the courtroom. No google, no facebook, no visiting the crime scene. The judge tries to prevent the jurors from becoming witnesses and damaging their impartiality.

    It seems fair to not allow the prosecution to submit evidence of a defendant's record as direct evidence. However, I would like to ask more questions about the record when the defendant is on the stand.

  3. Hey, coming a couple days late to the party, but I want to understand this: If the defendant doesn't take the stand, then his prior crime can't be brought up, correct? So, if Bob the robber doesn't take the stand, you can't bring up his prior gun possession at all, correct?

    And, just to further make sure I get it, if Bob does take the stand, but is never asked about his prior on direct, can you address it, or is it only if it's brought up on direct exam? You really have to watch your toes up there.

  4. Correct, correct, and depends on the judge's ruling. If the judge allows me to ask about it then I can question him even if it's not covered on direct. If the judge says no, then I can't.

    Unless the defendant opens the door by lying about something or bringing up something he shouldn't discuss. He can't use the protection as a sword and shield.

  5. if a person looses a trial and has chose for the jury to prosecute can the district attorney or judge reveal the persons past then?

    1. It all depends on different cases. In New York State, the guiding case is People v. Sandoval, which lets the court weigh the past convictions versus the prejudice.

    2. if the person is riding in a car, and has no knowledge of a weapon that the driver has in the car, and they get stopped, they find a weapon in the car, and because this person had a prior conviction 30 years ago. the officer's took the weapon out of the car, took it apart, and handcuffed the person. They turned all of his pockets inside out found nothing, but when they put all of his pockets back right, when he got to the station, they found a shell in his pocket. And yes he is an Black American man that spent 3 years of his life for a weapon he never touched, never had any knowledge of so does he has a case sense the case is over, can he take it back to court?

    3. I can't give legal advice, but I can say a case can be reopened based on new evidence or some appellate issues but it is a very uphill climb to exonerate an already convicted person.

  6. Quick question i know if i don't testify in trial my record can't be brought up. If i do testify my lawyer tells me they can is that right?

    1. The Judge generally balances the prejudicial effect of a person's record with the jury's need to know the background and credibility of a person before allowing convictions in evidence.

  7. Can the state bring up federal charges (background) when I go to court for a state charge?

    1. They can discuss any convictions a judge allows them too.