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Old Chief and the Professor

I hadn't heard from the Professor in a while. He'd taught me criminal procedure -- well, me and several thousand other students over the years -- and I'd run into him from time to time, the last at a seminar he was giving on the 4th Amendment, and the sorry state thereof. The email was about an episode of 48 Hours he'd recently seen. That's the CBS show that's like a real-life Law and Order: they track a murder, from the time the police first get involved up through the trial. In the episode the Professor had seen, he told me, the prosecution was allowed to introduce a number of graphic photos of the victim, who was a young child. Why was that? the Professor wondered. There was no question that the victim was dead; the only issue at trial was who killed him. Showing picture after grisly picture of the victim could do nothing but inflame the jury.

Happens all the time, of course. A domestic violence becomes a felony if you've got a prior conviction for it. At the felony trial, the prosecutor gets to tell the jury about your prior conviction. Try winning one of those cases. But that's the law: the prior conviction is an element of the crime, and that means it has to be proved to the jury. Sure, you can offer to stipulate, but you can't force the other side to stipulate. They have a right to present their case any way they want to.

There was a time when some thought that Old Chief might rescue us from that.

Old Chief -- yes, that was his name -- was involved in a gunfight back in 1993, and in addition to some other offenses, was charged with violation of a Federal statute making it a crime for anyone who'd been convicted of a crime punishable by more than one year in prison of having a firearm. Old Chief's prior offense was assault causing bodily injury. Understandably, his lawyer wasn't too keen on the jury finding out about the offense, so he offered to stipulate that the Old Chief had been convicted of a crime punishable by more than a year in prison, without telling the jury what the offense was. The prosecutor refused, the district court agreed, and so did the 9th Circuit. The Supreme Court, though, reversed in a 5-4 decision, with Souter writing an opinion that the Professor could have authored. The Court took a long look at Federal EvidR 403, which permits exclusion of relevant evidence if its probative value is outweighed by the danger of unfair prejudice, confusion, or other factors, and concluded that in certain cases, such as Old Chief's, a stipulation allowed the jury to have the necessary evidence without having it subjected to the prejudicial impact of the nature of Old Chief's prior conviction.

The ink was barely dry on the opinion when it started cropping up in Ohio decisions. The first was the 11th District's decision in State v. Henton, a prosecution under the old drug law, which elevated the degree of the crime for a prior drug conviction. The defendant had offered to stipulate to the convictions, but the prosecutor spurned the offer and the convictions were introduced. The opinion notes that a week before oral argument, the defendant filed a notice of supplemental authority citing Old Chief, and that a "spirited debate ensued at oral arguments." Must've been quite a time. The court found Old Chief "nearly identical" to Henton's case, and decided that the judge had abused his discretion in rejecting the stipulation.

It was all downhill for the Old Chief argument after that, though. Two years later, the 11th District refused to reverse a case where the trial court had admitted evidence of defendant's past three drunk driving convictions in a prosecution for his fourth offense, noting that the State was required to prove the priors. Subsequent decisions either distinguished Old Chief on the facts or on the law, the latter noting that Old Chief was not decided as a constitutional matter, but as an interpretation of the Federal Rules of Evidence. The Ohio Supreme Court's never ruled on the issue, so you could still make the argument that while Old Chief isn't binding precedent, given the similarities between the Federal and state rules on this point, it's at least instructive. The court's been willing to buy that argument in other contexts, especially with regard to the civil rules; the law on CivR 12(B)(6), for example, has been largely imported, at least until recently, from its Federal counterpart. But I wouldn't expect much success.

So let's get back to the Professor's email. There's certainly an argument against his point. The body is the single most important piece of evidence in a homicide, because it can tell us so many things. It's critical when you're arguing self-defense or provocation for manslaughter, and there may be occasions when the manner of death has significance beyond the simple fact of death. And a similar analogy holds true in other types of cases. The prosecution might want to put in evidence of serious physical harm in a felonious assault case simply to gain the jury's sympathy; but it might have relevance to issues like intent and accident.

My initial reaction to the Professor's email was, "Well, that's what happens in the real world." You get to try to defend cases like the felony domestic violence or the 4th time OVI, and you get to listen to the judge's instruction to the jury that they can only consider the prior conviction in determining whether the state has proved the element of the prior conviction, not whether the defendant committed this offense, and you know that there's a juror yet to be born who'd understand that distinction.

But sometimes we get so caught up with what we do that we don't stop to think about why we do it. Yeah, the prosecutor should probably be allowed to introduce the crime scene or the autopsy photos, but maybe we should take a closer look at when that's necessary and when it isn't. And if the defendant's willing to stipulate that has the prior domestic violence conviction or the three prior OVI's, there's no good reason to tell the jury about it.

And some good reasons not to. Maybe Old Chief was based on the Federal rules, but the Ohio rules also allow for exclusion where the prejudicial impact of the evidence outweighs its probative value, or could result in confusing the jury. Maybe that's an argument that needs to be made. Maybe sometimes those of us in the real world get so jaundiced taht we need somebody from the not-real world to point out to us, "Hey, this just isn't fair."

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