Document Type
Article
Abstract
Conventional wisdom tells attorneys they can avoid having the jury learn about criminal defendants’ prior convictions if the client exercises their right to not testify at trial. Conventional wisdom is wrong. Myriad status crimes, sentence enhancing specifications, and substantive offenses make prior convictions an element of the offense, ensuring the prosecution can introduce them as a matter of course during the prosecution’s case-in-chief. The seminal Supreme Court Case, Old Chief v. United States, provided some relief to criminal defendants by allowing them to stipulate to their status as a felon prohibited from possessing weapons to avoid having the jury learn about the name and nature of their prior offenses during prosecution for being a felon in possession of a firearm. Current state law circumvents the protections offered by Old Chief by making the fact of prior convictions an element of a crime in charges ranging from domestic violence to driving under the influence to nonsupport of dependents. Even more broadly, repeat offender statutes allow for the introduction of a wide range of prior convictions against those deemed by the government to be potential repeat violent offenders, violent career criminals, or sexually violent predators, among other classifications. In certain cases, defendants can take advantage of procedural protections by bifurcating the trial such that the judge makes the determination of the fact of a prior conviction. In other cases, defendants can have the jury determine the prior conviction after determining guilt to the substantive crime. In another category of cases, defendants can either stipulate to the judge alone the fact of a prior conviction or have the jury learn about and determine the fact of a prior conviction while determining guilt on the substantive offense. There are also a wide variety of cases where defendants have no choice at all and can only hope the jury does not hold their prior conviction against them This unprincipled mess cannot stand. It is offensive to reason, morality, and the Constitution. This Article proposes a universal statutory solution that blends the best procedures from various states and applies that procedure every time a prior conviction is an element of the crime. The right to a trial before an impartial jury is fundamental and having that impartiality rest on the happenstance of which procedural scheme covers a particular crime is offensive to notions of due process and equal protection. This Article describes the chaotic scheme Ohio uses and compares it to other states. It then proposes a universal solution and explains its advantages. Finally, it argues the current mess may be unconstitutional and that the proposed universal solution protects constitutional values. This Article is a path forward that protects defendants while still allowing the states to prosecute repeat offenders more severely.
Recommended Citation
Robert Barnhart,
Meet the New Chief, Same as the Old Chief: A Coherent Solution to the Problem of Prior Conviction Proof Procedures,
126
W. Va. L. Rev.
615
(2024).
Available at:
https://researchrepository.wvu.edu/wvlr/vol126/iss2/8