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Limiting prejudice from prior convictions in trials for being a felon in possession of a firearm

Dec 23, 2009 Limiting prejudice from prior convictions in trials for being a felon in possession of a firearm

For trials of charges of being a felon in possession of a firearm, prosecutors would love nothing more than for the jury to hear all the details about the prior felony conviction.

The best way for the defense to avoid prejudicing the jury over the prior felony conviction is to hold severed trials of the firearm possession charge and the charge of being a felon in possession of a firearm. If such a motion is denied, the defense should consider reaching a stipulation or admission that the Defendant was convicted of a qualifying felony prior to the alleged possession of the firearm and should seek the most favorable jury instructions to minimize the collateral damage of the jury’s knowing about a prior conviction.

The Supreme Court provides guidance on reducing such prejudice in Old Chief v. United States, 519 U.S. 172  (1997), which is a 5-4 decision, with two of the dissenters still on the Court (Justices Scalia and Thomas), and two off (Rehnquist and O’Connor, JJ).

Shortly before Old Chief was decided, the D.C. Court of appeals dealt with the issue in Goodall v. United States, 686 A.2d 178 (D.C. 1996). Jon Katz

ADDENDUM. Thanks to a fellow listserv member for addressing both of the above-listed cases.

Old Chief is a captivating name for the above-discussed Supreme Court case. Consider how such criminal defendants as Gideon (a prophetic name) and Miranda (whose competing namesake entertained along with Bob Hope and Bing Crosby) get their names immortalized in landmark Supreme Court cases. What if Ernesto Miranda’s last name had been MoxiePhish? That might have brought out suppression motion questions about whether the officer had MoxiePhished the defendant, rather than if s/he had Mirandized the defendant.

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