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Piling on

Your client is charged with drunk driving, with a prior conviction in the past twenty years.  Actually, he's got three of them.  The State has to prove one; that's an element of the offense.  You offer to stipulate to one of the prior convictions, but the State says no, they want to put on evidence of the prior.  Did we say "prior"?  Oops, make that "priors."  That's right, the State wants to introduce all three convictions.

Certainly this isn't fair, you tell the judge in your motion in limine.  He doesn't have a problem with it, deciding that allowing the State to introduce all three convictions wouldn't "confuse the issues in the case, mislead the jury, or constitute unfair prejudice."

So you prepare the jury for that in voir dire, telling the jury about the three priors.  They're going to find out about it, so you try to get across the idea that they'll need to set that aside.

And last week, the 9th District held in State v. Adams that it wouldn't even review the issue of whether the judge should have allowed the prosecutor to use all three convictions because you made a "strategic decision" to tell the jury about them, and that "because the jury was fully aware at the start of the trial that Adams had three prior OVI convictions, there was no unfair prejudice by admitting evidence of those convictions."

As the concurring opinion notes, this is pretty much nonsense.  Okay, that's my words, not hers; she simply notes that after the motion in limine was denied, "it was prudent and perhaps necessary for defense counsel to address the topic of multiple prior OVI convictions with the jury in order to gauge whether the potential jurors could fairly render a verdict in this case."

I was going to stick this in the Monday Case Update, but it was too long for that, and besides it got me thinking.  I can be handling a child rape case containing a sexually violent predator specification, which the state can prove because my client's got a previous conviction for a sex offense.  The jury will never know about the prior sex offense (as long as I don't get stupid and put my client on the stand), because I can choose to try the specification to the bench.  If my client's charged with aggravated robbery and having a weapon under disability, the jury will never know about his prior conviction for aggravated robbery, because I can choose to try the latter charge to the bench.  Repeat violent offender specifications can be handled the same way:  the jury can decide whether your client committed the murder, without learning that he's committed several prior violent felonies, because you can submit the issue of the prior felonies to the judge.

Yes, I know why we do that way:  because an SVP or RVO spec goes only to the punishment, rather than being an element of the crime.  (And if the only charge against you is weapons under disability, the jury will find out about the prior conviction.)  But this is pretty much nonsense, too:  what is a basis for the distinction between "an element" and "punishment," when the only effect of proving the element is to increase the punishment?

And this is just so manifestly unfair.  As one commentator observed, we don't exclude evidence of a defendant's prior convictions because they're not probative, it's because they're too probative.  That is simply too prejudicial; it doesn't just bump the meter toward conviction, it moves it all the way over to the other side.  I don't care what you tell the jury about using the prior convictions only to prove the element of the crime and not for determining whether the defendant is guilty of this crime, but only a fool would believe that a juror could actually do that with one prior conviction, let alone three.

There was an article in Sunday's paper about victims' families being appalled to learn that the penalty for aggravated vehicular homicide -- killing somebody while driving drunk -- is only two to eight years in prison.  I can see the arguments on both sides, and I'm not about to get into it.  I certainly don't have any use for repeat drunk drivers; anybody can make a mistake once, but if you get caught a second time, it means you're drinking and driving a lot, and we should make damn sure you don't get back on the road.

But you're still entitled to a fair trial, and allowing the jury to hear about your prior convictions pretty much precludes that from happening.  Whether the judge in Adams should have allowed in one conviction or three, the bottom line is that the jury shouldn't have heard about any of them.

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