BLR  Vol.4 No.3 , September 2013
Admissibility of the Defendant’s Criminal Records at Trial
Abstract: 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 contentious than the admissibility of witnesses’, especially defendants’, prior criminal history because of concern 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 credibility. 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.
Cite this paper: J. Jacobs, "Admissibility of the Defendant’s Criminal Records at Trial," Beijing Law Review, Vol. 4 No. 3, 2013, pp. 120-127. doi: 10.4236/blr.2013.43015.

[1]   18 U.S.C. § 922 (2006). It shall be unlawful for any person… who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year… to … possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

[2]   Advisory Comm. Note to 1991 404(b).

[3]   Davis v. Alaska, 415 US 308, 319 (1974).

[4]   Fed. R. Evid. 403.

[5]   Fed. R. Evid. 404(b) Evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

[6]   Fed. R. Evid. 413 In a criminal case in which the defendant is accused of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

[7]   Fed. R. Evid. 609(a) advisory committee’s note.

[8]   Fed. R. Evid. 609(d); cf. Davis v. Alaska, 415 US 308 (1974). Holding that a defendant has a Sixth Amendment confrontation clause right “to probe into the influence of possible bias in the testimony of a crucial identification witness,” including his juvenile record.

[9]   Fed. R. Evid.414, In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

[10]   Friedman, R. D. (1991). Character Impeachment Evidence: Psycho-Bayesian Analysis and a Proposed Overhaul, 38 U.C.L.A. L. Rev. 637, 642-643. The prohibition against propensity evidence is deeply engrained. Given the prohibition, a violation of it must be considered prejudicial without regard to whether, in determining the facts, the jury likely relied more on the evidence than would be rational; any reliance at all is deemed improper. And because the propensity evidence is likely to affect the jury powerfully, both in guiding its fact finding and in altering the effective burden of proof, the prejudice is often extreme. Nevertheless, evidentiary rule makers have concluded that, because the jury is so dependent on the testimony of witnesses, it must have a relatively full base of information on which to assess their credibility.

[11]   Haw. R. Evid. 609(a).

[12]   Huddleston v. United States, 485 US 681, 689 (1988). Holding that under FRE 404(b), “similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.

[13]   Kalven, H., & Zeisel, H. (1966). The American Jury.

[14]   Leonard, D. P. (1995). The Federal Rules of Evidence and the Political Process, 22 Fordham Urb. L.J. 305, 341.

[15]   Manual of Model Criminal Jury Instructions for the District Court of the Eight Circuit § 2.09 (2011).

[16]   Michelson v. United States, 335 US 469, 475-76 (1948). Holding that, subject to the trial court’s discretion to prevent abuse, the prosecution may impeach the defendant’s character witness by asking the witness if she is aware of the defendant’s prior convictions.

[17]   Natali Jr., L. M., & Stigall, R. S. (1996). Are you going to arraign his whole life? How sexual propensity evidence violates the due process clause, Loy. U. Chi. L.J., 28, 3-4.

[18]   Ojala, E. D. (1999). Propensity evidence under rule 413: The need for balance, Wash. U. L.Q, 77, 949.

[19]   Old Chief v. United States, 519 US 172 (1997).

[20]   Park, R. C., et al. (2011). Evidence law: A student’s guide to the law of evidence as applied in American Trials 164 (3rd ed.).

[21]   People v. Bermudez, 414 N.Y.S.2d 645 (N.Y. Sup. Ct. 1979).

[22]   People v. Bierenbaum, 748 N.Y.S.2d 563, 584 (N.Y. App. Div. 2002) (quoting People v. Linton, 561 N.Y.S.2d 259, 260 (N.Y. App. Div. 1990) (internal quotation marks omitted).

[23]   People v. Dyes, 122 A.D.2d 69 (N.Y. App. Div. 1986). Affirming the admissibility of children’s testimony of defendant’s prior abuse of their mother, defendant’s wife, in the months before she was murdered.

[24]   People v. Mixon, 203 A.D.2d 909, 909-10 (N.Y. App. Div. 1994). Affirming the admissibility of evidence of the defendant’s prior abuse of domestic partner because it is relevant to proving defendant’s motive.

[25]   People v. Molineux, 168 N.Y. 264, 293 (1901).

[26]   People v. Montgomery, 268 N.E.2d 695, 698-99 (Ill, 1971).

[27]   People v. Strasser, 249 A.D.2d 781 (1998).

[28]   President’s Task Force on Victims of Crime (1982). President’s task force on victims of crime final report (p. 9). Washington DC: US Government Printing Office.

[29]   Rickert, J. T. (2010). Denying defendants the benefit of a reasonable doubt: Federal rule of evidence 609 and past sex crime convictions. Journal of Criminal Law and Criminology, 100, 213.

[30]   Spencer v. Texas, 385 US 554 (1967).

[31]   State v. Beck, 536 S.E.2d 679, 683 (S.C. 2000) (citing State v. Kennedy, 528 S.E.2d 700 (S.C. Ct. App. 2000)).

[32]   State v. Cheeseboro, 346 S.C. 526, 540 (2001).

[33]   United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989). Similar act evidence offered on this theory—that the prior and charged offenses are so strikingly similar that the same person or persons probably had a hand in both—is frequently admitted under the identity exception to Rule 404(b), but is commonly referred to and offered as modus operandi evidence.

[34]   United States v. Crowder, 141 F.3d 1202, 1209 (D.C. Cir. 1998). A defendant’s offer to stipulate to an element of an offense does not render the government's other crimes evidence inadmissible under Rule 404(b) to prove that element, even if the defendant's proposed stipulation is unequivocal…

[35]   United States v. Doe, 935 F. Supp. 478 (S.D.N.Y. 1996). Granting the defendant an expungement based in part on the significant negative impact of defendant’s prior conviction on his ability to find gainful employment for the past twenty years.

[36]   United States v. Gabe, 237 F.3d 954 (8th Cir. 2001).

[37]   United States v. Hurley, 755 F.2d 788, 790 (11th Cir. 1985) Holding that a subsequent act, as well as a prior act, can be used to show intent under Rule 404(b).

[38]   United States v. Johnson, 458 F. App'x 727, 728 (10th Cir. 2012). The prosecution sought to introduce evidence that, on a prior occasion, Johnson grabbed a female clerk's buttocks, and then pressed his crotch against the female clerk’s buttocks while making a sexual comment and touching her breasts with his hands.

[39]   United States v. Richardson, 764 F.2d 1514, 1522 (11th Cir. 1985).

[40]   United States v. Rogers, 587 F.3d 816, 822 (7th Cir. 2009). Rule 404(b) identifies the propensity inference as improper in all circumstances, and Rule 413 makes and exception to that rule when past sexual offenses are introduced in sexual assault cases.

[41]   United States v. Simon, 453 F.2d 111, 115 (8th Cir. 1971). Once the defense has introduced the entrapment or procuring agent defense, the Government may proceed with relevant evidence to the contrary.

[42]   United States v. Williams, 238 F.3d 871 (7th Cir. 2001). Holding that evidence of prior bad acts to prove knowledge and intent elements of a criminal offense is admissible even though defendant had offered to stipulate to these mental elements.

[43]   Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.103-322, §320935(a), 108 Stat. 1796, 2135-37 (codified at 42 U.S.C. §§ 13,701 et seq.).

[44]   Wal-Mart Stores, Inc. v. Regions Bank Trust Dept., 347 Ark. 826 (2002). We conclude that, in the absence of a finding that [defendant] had been rehabilitated, the trial court’s decision to exclude evidence of her conviction under Rule 609(c) was erroneous.

[45]   Weinstein, J., & Berger, M. A. (2006). Weinstein’s Federal Evidence § 404.21[1][a].

[46]   Wigmore, J. H. (1923). A treatise on the Anglo-American system of evidence in trials at common law: Including the statutes and judicial decisions of all jurisdictions of the United States and Canada (2nd ed., p. 272).

[47]   X v. Denmark (Application No 2518/65) (1965). ECHR 3 (commission not yet ready to interpret Article 6 of the Convention).