Old Chief resurrected?
I once had an appeal from a weapons under disability conviction where I was asked in oral argument why I hadn't raised as an assignment of error that the defendant was prejudiced by admission of evidence that he had a prior conviction, which gave rise to the disability. That's not the only situation where that problem arises. To prove a felony domestic violence, you've got to show the prior conviction for domestic violence. It works the same for felony DUI's and even telephone harassment: the jury finds out that you've been convicted of another crime, in the latter cases exactly what you're currently charged with. Good luck with that.
I had to explain that that's the way the law works: the prior conviction is an element of the crime, and the State has to prove it.
Of course, a stipulation is proof, so why not just stipulate to that prior conviction, so that the jury doesn't have to hear it? That issue came up in a Supreme Court case back in 1997, in Old Chief v. United States. In that case, Old Chief was charged with what's generally referred to as felon in possession law: he was found with a gun, and he wasn't allowed to have one because he had a prior conviction for a felony (felonious assault).
He offered to stipulate to the prior conviction, but the government refused, and the trial court refused to order the government to accept it. There's a reason for that. The government has the burden of proving each of the elements of the crime, and it's generally allowed to choose how it wishes to do that. You can't preclude the State from introducing the autopsy report and coroner's testimony in a homicide case by offering to stipulate that the victim was murdered, and your only argument is that your guy didn't do it.
But the Supreme Court reversed in a 5-4 decision. Essentially, the Court held that the probative value of the admission of the evidence of the prior conviction was outweighed by its prejudicial effect. And it's got some great language:
In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.
You can certainly say that about DV and DUI cases, too.
So, how has the case law developed in light of Old Chief? It hasn't, certainly not in Ohio. (There may be Federal stuff, but this gets into the I Am Not Writing A Law Review Article concept of this blog.) Without really looking at the underlying logic, the Ohio appellate courts have, for the most part, sloughed off Old Chief on the basis that it's an interpretation of a Federal rule of evidence and a Federal statute, which the states aren't bound to accept, and a not a rule of constitutional law, which they are.
Still, there were a couple of districts that bought into Old Chief, and it looked like the Ohio Supreme Court was going to going to sort it out: back in 2009, in State v. Baker they accepted a certified conflict on the issue from the 9th and 11th Districts. The following year, in a 4-3 decision, the court dismissed the case as having been improvidently granted. The three dissenters said they would have adopted the holding of Old Chief.
They may get another chance.
Last week, in State v. Creech, the 7th District held that the trial court erred in refusing to stipulation of prior convictions in a weapons disability case, agreeing with the 11th District on the issue.
It'll be interesting to see what happens. Four of the judges who voted on Baker are still on the court, but only one from the original dissenters. It's hard at this point to see how it would play out.
But it's certainly an argument to be made at this point, and Creech does a good job of making it. Check it out.
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