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Using prior convictions

A final tidbit about my vacation:  on the last night we were in Vegas, we went to a sports bar we'd been to before, because they have great pizza.  We had to sit outside on the patio, because they had a sign on the door, "filming in progress."  I asked them what they were filming, and they told me it was a reality show.  I guess the subtle irony of filming a reality show in Las Vegas hadn't occurred to them.

If you've got a criminal case where your client has been convicted of the same or similar crime before, and you've got to put him on the stand, the 8th District's recent decision in State v. Durham is a must read.  Durham was charged with felonious assault as the result of an employment-related fight with a guy named Krug; although Krug got the worst of it, which of the two was the aggressor was hotly contested.  To raise self-defense, of course, Durham had to testify, and he brought some baggage to the stand with him:  he'd been convicted of felonious assault back in 1992, and he'd been charged with it again in a case in which his sister was the alleged victim, although that case had been dismissed.

His sister, who worked for him at this time, was also a defense witness to the assault.  The prosecutor spent almost half the cross-examination of her exploring the felonious assault charge in which she'd been the alleged victim.  This was completely over the top.  The state argued first that it was entitled to pursue the questioning to show that the sister had a financial interest in the outcome of the trial.  That made as much sense when you just read it as it did when I wrote it and when the prosecutor said it, and the court of appeals wasn't buying. 

Alternatively, the state argued that it was entitled to pursue that line of questioning to impeach defendant's character, a contention that was made problematic by the fact that the defendant had never placed his character in issue.  The trial court recognized as much, but then compounded the travesty by ruling that the evidence was admissible to impeach the sister's credibility.  Even more bewilderingly, when defense counsel tried to argue in summation that the felonious assault charge didn't prove defendant's guilt in this case, the court sustained the prosecutor's objection.

The trial court was similarly helpful when the state attempted to explore the 1992 conviction, which Durham had acknowledged when he testified on direct.  The prosecutor explained his reasons for doing so:

Your Honor, counsel opened the door to this line of questioning by, first, calling this witness to the stand. Second I asked him about his criminal conviction for felonious assault. I'm only going into the nature of the situation. It may show a pattern of criminal activity.  [Emphasis here and later is in the appellate court opinion].

The contention that a defendant opens to door to cross-examination of every detail of his past criminal convictions is, of course, nonsense; prior court cases, like this one and this one, have held that, when inquiring as to past convictions for impeachment purposes, the court has discretion to limit the questioning to the name of the offense, the date of conviction, and the punishment.  And the contention that it might be 404(B) evidence was similarly absurd; there was no question of identity, motive, or the other factors that permit evidence of prior crimes to be introduced.

Once more, though, the trial court attempted to bail the prosecutor out; as the appeals court noted,

Obviously recognizing the impropriety of the prosecutor's arguments, the trial court came to his rescue, citing its own recollection, albeit a mistaken one, that defendant testified on direct examination that "he didn't have a problem with anyone ever before." When defense counsel countered that defendant was speaking about the day in question, and had, in fact, admitted his prior conviction on direct, the court responded, "I don't know what he was talking about. I know what he said. Okay. Your objection is overruled."

The prosecutor was then allowed to question defendant about the details of his prior assault conviction, eliciting from defendant that there were two counts of assault, two victims, and that he had hit both his ex-girlfriend and her boyfriend. Notably, when the defendant tried to explain his actions, asserting "[i]t was just a fight," the prosecutor once again emphasized the similarities between his prior conviction and the current charge, asking, "A fight like this fight?"

Obviously, what the prosecutor attempted to do, and what the trial court let him get away with, was use the prior conviction to prove the present offense.  There's a danger of that happening any time the prior offense is similar to the one the defendant is charged with; most of the time, that fact alone will make the decision not to put the defendant on the stand a no-brainer.  When you're asserting self-defense, as Durham was, that's not an option. 

Credit goes to the court of appeals for recognizing this, but don't get too carried away by the decision.  As indicated above, it's abundantly clear that Durham didn't get a fair trial.  (To compound its errors in the introduction of evidence, the trial court also instructed the jury on the lethal definition of self-defense -- i.e., that the defendant is entitled to use force only if he is in danger of death or great bodily harm -- rather than the non-lethal one, which was required under these circumstances.)  And, as the cases above note, while the court has discretion to limit the questioning on prior convictions to date, crime, and punishment, it doesn't necessarily follow that it's an abuse of discretion to allow more than that.

Still, if you've got a case like this, putting together a motion in limine with a copy of Durham might make things go a bit smoother during trial.

I'll have some interesting stuff in the next few days.  (Yeah, like I'm going to tell you, "Reading this blog this week will be as fascinating as studying the arc of Jessica Simpson's acting career.")  Tomorrow, I'll look at a recent case which affirms why it might be a good idea to put your carrier on notice any time you sue a John Doe defendant.  On Wednesday, we'll talk about how to get someone put on Ohio's civil registry of sex offenders -- betcha didn't know we had one, right?  And on Thursday, we'll take a look at a recent court of appeals opinion on something dear to my heart:  whether appointed criminal defense attorneys are underpaid.

And I promise:  no more vacation stories.

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