Beijing Law Review
2013. Vol.4, No.3, 120-127
Published Online September 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.43015
Copyright © 2013 SciRe s .
120
Admissibility of the Defendant’s Criminal Records at Trial
James B. Jacobs
Criminal Law and Procedure, New York Univer s i ty School of Law, New York, USA
Received March 19th, 2013; revised April 24th, 201 3; accepted May 16th, 2013
Copyright © 2013 James B. Jacobs. This is an open access article distributed under the Creative Commons At-
tribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the
original work is properly cited.
The jury trial, which is a hallmark of the Anglo-American adversary system, requires close attention to
the evidence that it is permissible for the lay jurors to hear. No evidentiary issue has proved more conten-
tious than the admissibility of witnesses’, especially defendants’, prior criminal history because of con-
cern that the lay jurors might prejudicially infer present guilt from past criminality. This article explains
the complex evidentiary rules for admitting criminal history to prove guilt and to impeach witness credi-
bility. It suggests that inquisitorial trial procedure, which historically has been unconcerned that judges
know about the defendant’s prior criminal history while they are determining present guilt may have to
restrict admissibility of such evidence as lay juries become more common.
Keywords: Prior Crimes Evidence; Jury Trial; Rules of Evidence; European Trials
Introduction
“The State may not show defendant’s prior trouble with the
law, specific criminal acts, or ill name among his neighbors,
even though such facts might logically be persuasive that he is
by propensity a probable perpetrator of the crime. The inquiry
is not rejected because character is irrelevant; on the contrary, it
is said to weigh too much with the jury, and to so over-persuade
them a s to prej udge o ne wit h a bad gener al rec o rd a n d de ny hi m
a fair opportunity to defend against a particular charge. The
overriding policy of excluding such evidence, despite its ad-
mitted probative value, is the practical experience that its dis-
allowance tends to prevent confusion of issues, unfair surprise,
and undue prejudice (Michelson v. United States, 335 US 469,
1948).”
“Somewhere along the way the system lost track of the sim-
ple truth that it is supposed to be fair and to protect those who
obey the law while punishing those who break it. You expect
the trial to be a search for truth; you find that it is a per-
formance orchestrated by lawyers and the judge, with the jury
hearing only half the facts…
The jury is never told that the defendant has two prior con-
victions for the same offense and has been to prison three times
for other crimes (Presi dent’s Task Force, 1982).”
European law and policy treats an individual’s history of
criminal convictions as personal information that is entitled to
privacy protection. The US, and to a lesser extent the UK,
treat prior convictions as essentially public information.
Therefore, it is curious that, when it comes to the admissibility
at trial of a defendant’s or witness’ prior convictions, the US
and European positions are reversed. European “inquisitorial”
procedure requires that the defendant’s prior convictions be
made part of the case file, which is available to the judges de-
termining the defendant’s guilt or innocence. Indeed, French
trials begin with the prosecutor reading out loud the defendant’s
prior convictions. By contrast, the US has a complex web of
evidentiary rules limiting the trier of fact’s (judge or jury) op-
portunity to find out about the defendant’s prior convictions,
and criminal conduct (“bad acts”) that did not result in convic-
tion. This striking difference undoubtedly reflects European
confidence in professional judges and the US fear that lay
jurors will be un-duly swayed by evidence of the defendant’s
prior criminality. As civil law countries increasingly experi-
ment with lay judges and juries, they may have to confront
whether it is fair to the defendant for the panel that is deciding
on guilt to have knowledge of the defendant’s past crimes.
The Common Law’s Evidentiary Rules on
Admissibility of Prior Crimes
The common law rule was that the prosecutor could not
bring out at trial the defendant’s prior crimes for the purpose
of persuading the jury that that defendant was guilty of the
current crime. “Propensity” evidence was inadmissible because
the defendant was entitled to a trial on the present charges
rather than a trial on his character. It was thought that if lay
jurors heard about the defendant’s past criminal conduct, espe-
cially past convictions, they might be unable to fairly assess
whether the evidence on the present charges proved guilt be-
yond a reasonable doubt. They might vote to convict because,
consciously or unconsciously, they believed that the defendant
was a bad or dangerous person. Moreover, they might con-
sciously or unconsciously conclude that a defendant who “did
it before, probably did it this time as well.” While common
sense and experience suggest that people usually act consis-
tently with their past actions, that is not invariably true. More-
over, police have a tendency to solve “crimes” by rounding
up and prosecuting “the usual suspects,” i.e. people who com-
mitted similar crimes in the past. The common law rejected the
conclusion that once a thief always a thief, once a swindler
always a swindler. The presumption of innocence applies even
to those who have been convicted in the past (Kalven & Zeizel,

J. B. JACOBS
1966).1
While the common law rule rejecting propensity evidence
would seem to promote fairness and prevent unjust convictions,
in some situations it defies common sense and unfairly preju-
dices the prosecution. For example, it seems highly relevant,
albeit not determinative, that a man charged with assaulting a
young girl near a school had on two previous occasions
assaulted other young girls near the same school. Likewise, it
seems relevant that a woman charged with complex bankruptcy
fraud has previously been convicted of employing the exact
same fraudulent scheme.
Thus, the common law judges began recognizing exceptions
to the prohibition against allowing jurors to hear prior crime
evidence. If the defendant chose to introduce his good character
as a defense, the prosecutor could introduce evidence of the
defendant’s bad character in rebuttal. Lawyers could, on cross-
examination, impeach (question the credibility of) the other
side’s witnesses by introducing evidence of that witness’s past
crimes.
Exceptions proliferated. If the defendant called to the witness
stand a person who testified that the defendant enjoyed a repu-
tation in the community for honesty and integrity, the prose-
cution was permitted to rebut that testimony by asking that
witness if he knew about the defendant’s prior convictions.
Alternatively, the prosecution could call as a witness a person
to testify that “saintly” defendant previously had been con-
victed of crimes evincing dishonesty, disregard of others’
person and property and contempt for important social norms.
Common law exceptions were clearly explained in an influ-
ential 1901 decision by the prestigious New York State Court
of Appeals: a defendant’s prior crimes and bad acts were or-
dinarily inadmissible at trial, except when they “tend to estab-
lish 1) motive; 2) intent; 3) the absence of mistake or accident;
4) a common scheme or plan embracing the commission of two
or more crimes so related to each other that proof of one tends
to establish the others; 5) the identity of the person charged
with the commission of the crime on trial” (People v. Molineux ,
168 N.Y. 264, 1901). These exceptions were soon codified by
the drafters of 20th centur y evi dentiary rules.
Contemporary Rules of Evidence Regarding
Admissibility of the Defendant’s Prior Crimes
In the 20th century, comprehensive rules of evidence sup-
planted the judge-made common law rules. The Federal Rules
of Evidence (FRE) only apply to federal trials, but most states
have evidence rules similar to, or even the same as, the Federal
Rules. FRE 404(b) states the general prohibition against “the
introduction at trial of other crimes, wrongs or acts to prove the
character of a person in order to show action in conformity
therewith” (Weinstein & Berger, 2006; Advisory Comm. Note
to 1991 404(b); Fed. R. Evid. 403). However, the rule then
proceeds to enumerate exceptions that allow prior convictions
and bad acts to be introduced at trial if they constitute proof of
motive, opportunity, intent, preparation, plan, knowledge, iden-
tity or absence of mistake or accident (Fed. R. Evid. 404(b);
Huddleston v. United States, 485 US 681, 1988); United States v.
Hurley, 755 F.2d 788 (11th Cir. 1985)). Even if the judge finds
that the prior conviction or bad act falls within one of the
exceptions, she should allow it to be introduced only if she
finds that its prejudicial effect does not substantially outweigh
its probative value (State v. Beck, 536 S.E.2d 679 (S.C. 2000)).
These are necessarily subjective judgments and, if the defen-
dant is convicted, a trial ruling admitting prior crimes or bad
acts is a frequent basis for appeal. However, appeals courts
give substantial deference to trial judges’ rulings on such evi-
dentiary issues.
The FRE provide for admitting into evidence both prior con-
victions and prior bad acts that were not prosecuted or, if
prosecuted, that did not result in a conviction. Thus, in prose-
cuting a defendant for assaulting his wife, the prosecutor,
invoking the identity and motive exceptions, may call as a
witness the victim, a friend who saw the incident, or the police
officer who made the arrest to testify about the previous as-
sault (People v. Mixon, 203 A.D.2d 909 (N.Y. App. Div. 1986);
People v. Dyes, 122 A.D.2d 69 (N.Y. App. Div. 1986)).2 The
reasoning for admitting a prior domestic assault in a present
homicide or assault trial under the intent exception is that the
defendant’s previous assault on the same victim he is now
charged with assaulting or killing tends to show that the present
violence was intended and not an accident. The trial judge
may admit this evidence of a prior assault if she concludes that
1) a reasonable jury could find by a preponderance of the
evidence that the defendant committed that prior assault, and 2)
that the prejudicial effect of this prior crime evidence does not
substantially outweigh its probative value.
The defendant’s prior attack on his wife, whether resulting in
a conviction or not, could also be admissible under the motive
exception. A clear example of the motive exception is where
Doe is charged with murdering Moe, the prosecution can in-
troduce evidence that Doe’s motive was retaliation against Moe
for providing evidence that resulted in Doe’s prior conviction
for robbery. In the domestic violence situation, the prosecutor
will argue that evidence of the defendant’s prior assaults on his
domestic partner should be admitted because they tend to show
that he had a hostile relationship with the victim, which may
give rise to motive. Thus, in People v. Bierenbaum, the New
York court explained that:
“In a domestic vi olence homicide, as th is clearly is , it is highl y
probative—quite often far outweighing any prejudice—that a
couple’s marriage was strife-ridden and that defendant pre-
viously struck and/or threatened the spouse-victim. Indeed, it
has also been held that such evidence in like contexts is high-
ly probative of the defendant's motive and is either directly
related to or inextricably interwoven with the issue of his iden-
tity as the killer (People v. Bierenbaum, 748 N.Y.S.2d 563
(N.Y. App. Div. 2002)).”
1Unfortunately, there is scant empirical evidence to confirm or reject
the strongly held assumption that jurors will be prejudiced against
defendants with prior convictions. More than fifty years ago, the
seminal Chicago Jury Project observed that, despite the jury’s aware-
ness of the defendant’s criminal record, it usually voted in favor of the
defendant While I don’t know of any similar quantitative study in the
ensuing decades, knowledgeable trial lawyers and judges tell me that it
is common, perhaps even more than 50% of the time, for jurors to learn
about the defendant’s prior record. In bench trials, the defendant, at
least in New York State, can request trial before a judge who did not
p
reside over the pretrial hearing on the admissibility of prior record,
but defendants often waive that right, counting on the ability and good
faith of the trial judge not to improperly consider prior records .
2In part, the willingness to allow the prosecutor
to introduce evidence o
f
the defendant’s prior violence against his wife or domestic partner
demonstrates the contemporary view that, in the past, the criminal
j
ustice system did not adequately protect women from battering hus-
bands and domestic partners.
Copyright © 2013 SciRe s . 121

J. B. JACOBS
The defendant’s prior conviction(s) can be introduced to
prove that the defendant’s mental state at the time of the crime
satisfied the charged offense’s mens rea (culpable mental state)
requirement. For example, in prosecuting defendant Peter Poe
for the crime of purposefully issuing a bad check with intent to
defraud, the prosecutor might argue that Poe’s prior bad check
convictions are relevant to proving that, in the present case, Poe
acted knowingly and intentionally, not merely inadvertently or
negligently. The intent exception overlaps with the “absence of
mistake or accident” exception. In effect, Poe’s defense is that
he issued the bad check by mistake. The prosecutor argues that
Poe’s previous bad check writing tends to prove that his present
bad check writing was no mistake.
Consider another example of the intent/absence of mistake
exception. Defendant Jill Jones is charged with shoplifting an
iPad. Jones claims that she meant to pay for the iPad, but
absent-mindedly left the store without stopping at the cashier
to pay. The prosecutor will argue that Jones’ prior shoplifting
convictions should be allowed into evidence to prove that Jones
intended to take the iPad without paying for it. If the judge
rejects the admissibility of Jones’ prior convictions and Jones is
acquitted, the prosecutor has no recourse. In the US, as a matter
of constitutional law, a not guilty verdict cannot be appealed.
Under the identity exception, prosecutors can introduce prior
bad acts and convictions in order to prove that the defendant
perpetrated the charged offense. In a South Carolina trial
charging the defendant with murdering two people in a barber-
shop, the trial judge allowed the prosecutor to introduce evi-
dence that the defendant had previously murdered a cab driver
(State v. Cheeseboro, 346 S.C. 526, 2001). Upon conviction,
the defendant appealed, claiming that the jurors should not
have been permitted to hear about the previous murder. The
South Carolina Supreme Court affirmed the conviction, ex-
plaining that, "The fact that the same weapon was used in both
the barbershop and cab driver murders goes to show appellant’s
identity as the barbershop killer”. The use of the same weapon
in both crimes made it more likely than not that the person who
committed the taxi cab murder also committed the barbershop
murders.
Suppose Jack James is charged with stealing letters from a
mailbox. The prosecutor’s theory is that James inserted into the
mailbox a device that extracts envelopes. James claims that he
knows nothing about the crime. The prosecutor seeks to intro-
duce into evidence James’ two previous convictions for stealing
mail from mailboxes by means of a wire device. The judge will
certainly find that the strikingly similar modus operandi for the
present and past crimes justifies the admissibility of the prior
convictions at the present trial (United States v. Connelly, 874
F.2d 412, 416 (7th Cir. 1989)).
The preparation exception is illustrated by the prosecutor’s
introduction at Smith’s robbery trial that Smith stole a car that
he later used in the bank robbery. The car theft will almost
certainly be admitted to show preparation, whether or not the
defendant was convicted or even arrested for the car theft. The
car theft might also be admissible under the proof-of-plan
exception as evidence that the defendant planned the bank
robbery in advance.
When a defendant argues as an affirmative defense that,
while he committed the crime, he should not be found guilty
because the police entrapped him (i.e. the police caused him to
commit the crime by using unacceptable force, incentives or
entreaties), the prosecution can introduce evidence to show that
defendant was predisposed to commit the crime; the law
enforcement agents merely provided an opportunity. The best
evidence of the defendant’s predisposition is prior conviction(s)
for the same type of offense. For example, in United States v.
Richardson, Richardson argued that DEA agents entrapped him
into conspiring to possess drugs with intent to sell (United
States v. Richardson, 76 4 F.2d 1514 (11th Cir. 1985)). The trial
judge allowed the prosecution to introduce an electronically
intercepted conversation in which Richardson admitted to an
earlier cocaine sale. Richardson appealed his conviction, com-
plaining that the jurors should not have been allowed to hear
about the prior bad acts disclosed in the tape-recorded
conversation. The 11th Circuit Court of Appeals held that evi-
dence that Richardson sold cocaine in the past was admissible
to show that he was not entrapped on the present occasion
(United States v. Simon, 453 F.2d 111, 115 (8th Cir. 1971)).
Special Rules for Admitting Evidence of Prior
Sex Offenses
US evidence law has been powerfully effected by the widely
held, but empirically conte stable, belie f that se x offen ders have
an uncontrollable predisposition for sexually deviate conduct
(Leonard, 1995; Natali & Stigall, 1996; Ojala, 1999).3 Histori-
cally, trial judges often found prior sex offense convictions
admissible in a current sex offense prosecution because it es-
tablished the defendant’s “motive,” i.e. the defendant’s over-
powering urge for deviate sex (United States v. Rogers, 587
F.3d 816 (7th Cir. 2009)). In 1994, Congress approved
amendments to the Federal Rules of Evidence specifically
applicable to the admissibility of prior sex crime convictions
and bad acts (Violent Crime Control and Law Enforcement Act
of 1994). FRE 413 provides that “[i] n a criminal case in which
a defendant is accused of a sexual assault, the court may admit
evidence that the defendant committed any other se xual assault.
The evidence may be considered on any matter to which it is
releva nt” ( Fed. R. Evid. 413). In US v. Johnson, for example,
the defendant was accused of sexually assaulting one passenger
and two flight attendants on board an airplane. At trial, the
judge permitted the prosecutor to introduce evidence of other
instances where Johnson was accused of, although not prose-
cuted for, sexual assault (United States v. Johnson, 458 F. App’
x 727 (10th Cir. 2012)). Johnson appealed his conviction on
the ground that evidence of prior sexual assaults should not
have been admitted at his trial. However, the appeals court held
that the prosecution’s prior bad act evidence satisfied the
threshold requirements for FRE 413 admissibility, which
re-quires the court to find that “1) the defendant is accused of a
crime involving sexual assault or child molestation, 2) the
evidence proffered is evidence of the defendant’s commission
of another offense or offenses involving sexual assault or child
molestation, and 3) the ev idence is rel evant”.
The court also rejected th e defend ant’s argument t hat the prior
sexual assaults should not have been admitted because they
were more serious than the assaults with which he was charged
in the case on appeal.
3Numerous academic commentators have criticized
the special eviden-
tiary rules on admissibility of prior sex offenses as reflecting irra-
tional prejudice against sex offenders. The critics point out that sex
offenders, as a class, have lower rec i d i v i sm rates than other categories
of offenders. Nevertheless, legislators have singled out sex offenders
for inclusion on publicly-accessible on-line sex offender registries, spe-
cial em
p
lo
y
m
ent
p
rohibitionsandrestrictions on residentialchoices.
Copyright © 2013 SciR e s . 122

J. B. JACOBS
FRE 414 deals with the admissibility of prior convictions or
uncharged criminality involving sexual molestation of a child
(Fed. R. Evid. 414). It applies to cases like United States v.
Gabe, where the defendant was charged with sexually molest-
ing a minor. In accordance with Rule 414, the trial judge
permitted the prosecution to introduce witness testimony that
Gabe, in the past, had sexually assaulted another child. The
appeals court agreed that the evidence was admissible because
the past and present sexual assaults were highly probative of
present guilt. “Both victims were young girls of six or seven
years at the time of the offenses; both were related to Gabe; and
the sexual nature of the offenses was similar” (United States v.
Gabe, 237 F.3d 954 (8th Cir. 2001)). This is a good example of
how powerfully prejudicial evidence of past crimes can be.
Once the jurors hear about the defendant’s previous child
sexual assaults, they will almost certainly believe him guilty of
the present charges. People with prior convictions are thus
highly vulnerable to being charged with new offenses that re-
semble their previous offenses.
Weighing Prior Crime Evidence’s Probative
Value against Prejudicial Effect
FRE 403 provides that even though prior convictions and bad
acts are relevant, they should not be admitted at trial if the trial
judge finds that the past crimes evidence’s “probative value is
substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.”
The trial judge must consider whether the prior crime or bad
act evidence has the capacity “to arouse horror or sympathy,”
whether the prior crimes’ remoteness in time diminishes its
relevance, whether the fact sought to be proven by introduction
of the past crimes is really in dispute and, even if so, whether it
might be proven by other evidence (Park, 2011). In other words,
the trial judge should be very cautious about admitting past
crimes evidence into the trial. As the Supreme Court said in
Spencer v. Texas:
“Because such evidence is generally recognized to have po-
tentiality for prejudice, it is usually excluded except when it is
particularly probative in showing such things as intent; an ele-
ment of the crime; identity; malice motive… The defendant’s
interests are protected by limiting instructions and by the dis-
cretion residing in the trial judge to limit or forbid the admis-
sion of particularly prejudicial evidence even though admissible
under an accepted rule of evidence (Spencer v. Texas, 385 US
554, 1967).”
Judge’s Cautionary Instruction to the Jury
Having decided in favor of admitting the prior crime or bad
act evidence under one of the exceptions, the judge is likely at
the end of the trial to instruct the jury not to consider this evi-
dence as proof of the defendant’s criminal propensity. A rec-
ommended model instruction states that:
“You [are about to hear] [have heard] evidence that the de-
fendant previously committed [an act] [acts] similar to [the one]
[those] charged in this case. You may use this evidence to help
you decide [manner in which the evidence will be used to prove
identity—e.g., whether the similarity between the acts previ-
ously committed and the one[s] charged in this case suggests
that the same person committed all of them]. [If you find that
the evidence of other acts is not proven by the greater weight of
the evidence, then you shall disregard such evidence. To prove
something by the greater weight of the evidence is to prove that
it is more likely true than not true. This is a lower standard than
proof beyond a reasonable doubt.]
The defendant is on trial for the crime[s] charged and for
[that] [those] crime[s] alone. You may not convict a person
simply because you believe [he] [she] may have committed
some act[s], even bad act[s], in the past (Manual of Model
Criminal Jury Instructions for the District Court of the Eighth
Circuit § 2.09, 2011).”
Prior Convictions as an Element of the Offense
Some federal and state criminal offenses include in the defi-
nition of the crime one or more prior convictions. To prove the
defendant guilty, the prosecutor must prove beyond a reason-
able doubt every element of the offense, including those prior
convictions. Thus, this should not be thought of as one of the
evidentiary discussed above. Unlike those exceptions, when
prior convictions are admitted as part of the prosecution’s re-
sponsibility for proving the elements of the charged offense
there is no weighing of relevance v. prejudice. For example, a
person commits felony drunk driving when, having been con-
victed of drunk driving within the past ten years, he or she op-
erates a motor vehicle while intoxicated. Thus, to prove felony
drunk driving, the prosecutor must prove that the defendant 1)
committed the present offense by driving while intoxicated, and
2) had previously been convicted for driving while intoxicated.
It seems likely that jurors would consider this fact highly rele-
vant, despite the judge’s instruction that they should not infer
the defendant’s guilt on the present charge from his previous
conviction.
Consider the federal felon-in-possession law, which makes it
illegal for a person who has previously been convicted of any
felony to possess a firearm (maximum punishment is ten years
imprisonment) (18 U.S.C. § 922 (2006)). To obtain a convic-
tion, the prosecutor must prove that the defendant was previ-
ously convicted of a federal or state felony. The defendant is
certainly disadvantaged (indeed prejudiced) by the introduction
at trial of his previous criminality. In Spencer v. Texas, the
defendant argued that a statute that requires proof at trial of a
previous conviction violate due process of law. He appealed his
conviction all the way to the US Supreme Court. He urged the
Court to protect defendants from prejudice by requiring that
when evidence of prior convictions is an element of an offense,
that element be litigated separately from the other statutory
elements, i.e. that a bifurcated trial procedure should be re-
quired. In rejecting this due process challenge, the Supreme
Court stated:
“Tolerance for a spectrum of state procedures dealing with a
common problem of law enforcement is especially appropriate
here. The rate of recidivism is acknowledged to be high, a wide
variety of methods of dealing with the problem exists, and ex-
perimentation is in progress. The common-law procedure for
applying recidivist statutes, which requires allegations and
proof of past convictions in the current trial, is, of course, the
simplest and best known procedure.”
Stipulating to the Prior Conviction
The defendant, fearing that jurors who hear about his previ-
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J. B. JACOBS
ous convictions would be prejudiced against him, would nor-
mally prefer to stipulate (i.e. not contest) the fact of his previ-
ous conviction(s). However, the prosecutor is unlikely to accept
the defendant’s stipulation, preferring that the jury hear about
the prior conviction. Whether the defendant had a right to con-
cede the previous conviction element of the charged offense
was considered by the Supreme Court in Old Chief v. United
States (Old Chief v. United States, 519 US 172, 1997). Defen-
dant Old Chief was charged with violating the federal
felon-in-possession law. He offered to stipulate that he had
previously been convicted of a felony, assault resulting in seri-
ous bodily injury. The trial judge refused to allow the stipula-
tion and permitted the prosecution to introduce the previous
felony conviction. Old Chief appealed his conviction to the
Supreme Court on the issue whether a defendant has a constitu-
tional right to waive proof of one or more elements of the of-
fense. The Court held that ordinarily a defendant has no right to
have the trial court accept his stipulation to an element of the
offense:
“In sum, the accepted rule that the prosecution is entitled to
prove its case free from any defendant’s option to stipulate the
evidence away rests on good sense. A syllogism is not a story,
and a naked proposition in a courtroom may be no match for
the robust evidence that would be used to prove it. People who
hear a story interrupted by gaps of abstraction may be puzzled
at the missing chapters, and jurors asked to rest a momentous
decision on the story's truth can feel put upon at being asked to
take responsibility knowing that more could be said than they
have heard. A convincing tale can be told with economy, but
when economy becomes a break in the natural sequence of
narrative evidence, an assurance that the missing link is really
there is never more than second best.”
However, the court further held that, in a felon in possession
of a firearm offense, the defendant should be allowed to stipu-
late his ex-felon status because it would not unduly disadvan-
tage the prosecution’s narrative:
“Proving status without telling exactly why that status was
imposed leaves no gap in the story of a defendant's subsequent
criminality, and its demonstration by stipulation or admission
neither displaces a chapter from a continuous sequence of con-
ventional evidence nor comes across as an officious substitution,
to confuse or offend or provoke reproach.”
After Old Chief, lower courts have consistently permitted the
prosecutor to introduce prior convictions, despite the defen-
dant’s willingness to stipulate to them, if the prior convictions
pertain to elements of the charged offense (United States v.
Williams, 238 F.3d 871 (7th Cir. 2001); United States v.
Crowder, 141 F.3d 1202 (D.C. Cir. 1998)).
Impeachment by Evidence of Prior Conviction
or Bad Act
So far we have been examining whether the prosecutor can
introduce prior convictions or uncharged criminality to prove
its case against the defendant. However, the introduction of
prior crimes evidence also comes into the trial when either the
prosecutor or the defense lawyer seeks on cross examination to
impeach (i.e. undermine the credibility of) the adversary’s wit-
ness, including a defendant who chooses to testify in her own
defense. FRE 609 allows the opposing party to impeach the
other side’s witness with that witness’s prior felony convictions
and with misdemeanor convictions involving dishonesty or
false statement, unless the judge determines that the prejudice
caused by admitting this prior crimes evidence would substan-
tially outweigh its probative value. Juvenile adjudications may
also be used to impeach witnesses other than the defendant (Fed.
R. Evid. 609(d); Davis v. Alaska, 415 US 308, 1974); Huddle-
ston v. United States, 485 US 681, 1988).
While one hundred years ago, a witness could only be im-
peached with prior convictions for crimes involving dishonesty
or false statements (crimi falsi), the trend in US law is in the
direction of making it easier to impeach with past crimes and
bad acts. Some state evidentiary rules are even more liberal
than the federal rule. For example, unlike FRE 609, California
evidence law does not prohibit impeaching witnesses with con-
victions more than ten years old. Under Illinois law, any felony
can be admitted to impeach a witness’s credibility, as long as
the probative value of the impeachment evidence outweighs its
prejudicial effect (People v. Montgomery, 268 N.E.2d 695 (Ill,
1971)).
Because of the “unique risk of prejudice” to a defendant who
testifies, FRE 609 provides special protection against im-
peachment with prior crime or bad act evidence for a testifying
defendant than for other witnesses (Fed. R. Evid. 609(a) advi-
sory committee’s note). FRE includes a presumption against
permitting a testifying defendant to be impeached with evi-
dence of his prior crimes or bad acts. To overcome that pre-
sumption in favor of exclusion, the government must show that
the prior conviction’s probative value “out-weighs its prejudi-
cial effect to that defendant” (Fed. R. Evid. 609(a)(1)(b);
Friedman, 1991)). California provides no special protection to a
testifying defendant, who may be impeached just like any other
witness. At the other end of the spectrum, Hawaii does not
admit prior conviction evidence to attack the defendant’s credi-
bility unless the defense has “introduced testimony for the pur-
pose of establishing the defendant’s credibility as a witness”
and the defendant’s prior conviction was for a crime of dishon-
esty (Haw. R. Evid. 609(a)).
New York State is also more protective of the defendant’s
prior record than FRE 609. At New York’s well-known pretrial
“Sandoval Hearing,” the trial judge must weigh the probative
value of prior crimes evidence against prejudice to the defen-
dant. In People v. Bermudez, a New York state court crafted a
compromise impeachment rule where, under appropriate cir-
cumstances, the judge can permit the prosecutor to ask the tes-
tifying defendant whether he has ever been convicted of a fel-
ony (People v. Bermudez, 414 N.Y.S.2d 645 (N.Y. Sup. Ct.
1979)). If the answer is yes, the defendant does not have to
disclose the nature or details of the prior crime.
Impeachment with Expunged Convictions
Suppose a witness’s conviction has been expunged; does that
mean that it cannot be used to impeach that witness? Allowing
impeachment would undermine the value of expungement,
whose purpose is to permit a convicted person to put a convic-
tion behind him after passage of a specified number of years
without another conviction (United States v. Doe, 935 F. Supp.
478 (S.D.N.Y. 1996). FRE 609 provides that both convictions
and bad acts more than ten years old cannot be used to impeach
a witness. However, consider the case of a prosecution witness
who is giving damaging testimony against the defendant. The
defendant could make a strong argument that the Sixth
Amendment right to confront the evidence against her must
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J. B. JACOBS
mean that she has the right to impeach the prosecution’s wit-
nesses’ credibility by bringing out the witness’s expunged con-
victions. After all, expungement does not mean that the crime
was not convicted; rather it reflects a judgment that enough
time has passed since the conviction that the convict should be
permitted to get on with his life without the burden of a crimi-
nal stigma. Lower courts have taken different positions on this
issue. While many states do not allow a witness to be im-
peached with an expunged conviction, a minority of states do.
For example, in Wal-Mart Stores, Inc. v. Regions Bank Trust
Dept., the Arkansas Supreme Court reversed the trial court’s
ruling that a prosecution witness could not be impeached with
evidence of an expunged felony theft conviction (Wal-Mart
Stores, Inc. v. Regions Bank Trust Dept., 347 Ark. 826, 2002).
The court based its reasoning on the fact that the expunged
conviction involved a crime of dishonesty and the expungement
was based upon the passage of time, not on an affirmative
finding of rehabilitation. The Supreme Court’s decision in
Davis v. Alaska would seem to support the position that the
defendant has a right to impeach a prosecution witness with
evidence of even expunged convictions. In Davis, the Court
held that the state’s interest in protecting the confidentiality of a
witness’s juvenile delinquency adjudication is subordinate to
the criminal defendant’s right of confrontation (Davis v. Alaska,
415 US 308, 1974). Likewise, the Court would probably hold
that a witness’s interest in hiding information about an ex-
punged conviction must give way to the defendant’s confronta-
tion right.
It’s another matter whether a defense witness or the defen-
dant himself can be impeached with an expunged conviction.
The prosecution wishing to impeach a defense witness has no
constitutional right to rely on, as constitutional rights belong to
individuals, not the state. The prosecution has to argue that, as a
matter of policy, it ought to be permitted to impeach the de-
fense witness whose prior conviction has been expunged, just
as it can impeach a defense witness with prior bad acts for
which she was never convicted or ever charged. Assuming that
the defendant could impeach the prosecution’s witness with an
expunged conviction, fairness to the state would count in favor
of allowing impeachment of defense witnesses with expunged
convictions.
Impact on the Defendant’s Decision to Testify
The defendant has an absolute right to testify on her own be-
half. If the defendant can be impeached with her prior convic-
tions and bad acts, she may be deterred from testifying out of
fear that if the jurors hear her prior convictions, they will not
believe her testimony and, worse, they might become preju-
diced against her in assessing her guilt on the present charges.
Even if she has a plausible defense, she may decide that the
best course is to plead guilty to a lesser charge rather than risk a
more severe sentence if convicted at a trial. Even the prospect
of an expunged conviction being disclosed to the jury might
convince a defendant not to testify. In People v. Strasser, a
New York court held that a trial judge did not abuse his discre-
tion by allowing the prosecution to impeach the defendant with
an expunged larceny conviction. The court noted that “the ex-
pungement of defendant's conviction was not proven to consti-
tute a dismissal of that charge on the merits, nor does it alter the
fact that a criminal act was perpetrated by him” (People v.
Strasser, 249 A.D.2d 781, 1998).
A defendant with a prior sex offense conviction is especially
unlikely to testify on his own behalf, even more so if the cur-
rent charge is also a sex crime. While the judge will explain to
the jury that the past conviction(s) is not being admitted to
show the defendant’s propensity for criminality, but only to
shed light on the credibility of his testimony, there is a serious
risk that the jurors will be so alarmed and repulsed by this in-
formation that, consciously or unconsciously, they will be more
likely to find the defendant guilty in the present case, even
though the current charge is not for a sex offense (Rickert,
2010). This puts added pressure on defendants with prior con-
victions to plead guilty.
Comparison with European Countries
The continental European countries in most cases allow the
trier of fact, including lay judges, to see the defendant’s prior
criminal record. Apparently, Europeans jurists believe that a
criminal record’s relevance to guilt and innocence outweighs a
criminal defendant’s right to privacy, despite the high priority
they give to criminal record confidentiality. In contrast to the
common law countries, which fear that lay jurors may not be
willing or able to assess guilt fairly if they have knowledge of
the defendant’s prior convictions, civil law jurists believe that
professional judges will properly weigh the relevance of a de-
fendant’s prior convictions. In those European countries that
use mixed panels of professional and lay jurors in some crimi-
nal cases, there is no evidentiary rule preventing the lay jurors,
while they are deciding the defendant’s guilt or innocence, from
learning about the defendant’s prior criminal history. Indeed,
civil law countries do not make the sharp distinction between
the adjudicatory and sentencing p hases of a criminal trial.
In X v. Denmark, the European Commission of Human
Rights considered a challenge to prior crime evidence being
introduced into the guilt phase of the criminal trial. In their
appeal on two counts of rape, the prosecutor had included evi-
dence of X’s prior rape conviction in the file submitted to the
Commission, which then determined whether the case was
admissible to the European Court of Human Rights. The Com-
mission considered whether prior crimes evidence violated
Article 6 of the European Convention on Human Rights. Arti-
cle 6 guarantees that “[i]n the determination of his civil rights
and obligations or of any criminal charge against him, everyone
is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.”
The Commission observed that in a number of European coun-
tries, prior crimes evidence is admitted at trial, and ultimately
decided that “the Commission is not prepared to consider such
a procedure as violating… the Convention, not even in cases
where a jury is to decide on the guilt of an accused” (X v. Den-
mark (Application No 2518/65) (1965) ECHR 3). The Com-
mission seemed satisfied that the professional judges on the
Court would be able and willing to properly counsel their lay
colleagues on the weight that should be given to prior convic-
tion evidence.
Conclusion
In contrast to the pre-trial detention and sentencing stages of
the criminal process where the relevance of prior criminal re-
cord has not been controversial, the admissibility of a defen-
dant’s criminal record at trial has always generated controversy.
When it came to the state branding someone a criminal and
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J. B. JACOBS
imposing punishment via its court process, judges were reluc-
tant, even unwilling, to infer present wrongdoing from past
wrongdoing. Implicitly, they were unwilling to adopt such a
hard-wired view of character—once a criminal always a crimi-
nal. John Henry Wigmore, author of the great Anglo-American
evidence treatise of the early 20th century (1904), explains that
character evidence has the potential to unfairly prejudice the
defendant: “Here, however, a doctrine of Auxiliary Policy…
operates to exclude what is relevant—the policy of avoiding the
uncontrollable and undue prejudice, and possible unjust con-
demnation, which such evidence might induce” (Wigmore,
1923).
But what the common law gave with one hand, it took away
with the other. The presumption against the admissibility of the
defendant’s prior crimes to prove guilt of present charges was
undermined by broad exceptions. In presenting the state’s case
against the defendant, the prosecutor can introduce the defen-
dant’s criminal record if she can persuade the trial judge that
one or more exceptions apply and, if they do, that the probative
value of the prior crimes evidence outweighs its prejudicial
effect. The trend is toward more liberal admissibility of prior
convictions and even prior criminal conduct. The modern view
is said to be that a witness with past convictions “may be less
likely to testify truthfully than a law-abiding citizen” (Weins-
tein & Berger, 2006). The special evidentiary rules permitting
admissibility of prior sex offenses to prove propensity to com-
mit the charged sex offense is the most extreme example of this
trend. This is obviously not good news for a defendant who
would like to testify, but who fears that his prior crimes will
have a prejudicial effect on the jury.
Continental European criminal justice systems have not been
much concerned with the possible prejudice to defendants that
may occur if the trier of fact knows about the defendant’s prior
criminal record while considering guilt or innocence on current
charges.4 Indeed, European procedure does not make a sharp
distinction between the guilt determining phase of a trial and
the sentencing phase. Thus, the prior record, which is clearly
relevant to sentencing, is placed in the same file that is used in
determining guilt. This may not have been considered a prob-
lem because European countries have great confidence in their
professional judges’ ability not to give undue weight to past
crimes evidence. Even when mixed judge and lay panels are
used in criminal cases, the judges are probably trusted to prop-
erly counsel their lay colleagues on the appropriate weight to
give prior crimes evidence.
Acknowledgements
Grateful thanks to Dimitra Blitsa, Alessandro Corda, Jona-
than Fayer, Benjamin Goldberg, Elena Larrauri, Claire Tan and
Marlen Vesper-Gra ske .
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