Yesterday, I taught a class on the use of Rule 404(b) evidence in sexual assault cases. During the class, we discussed the general rule against admitting the bare fact of a defendant’s prior conviction. As Jessie discussed here, the basic idea is that even when Rule 404(b) evidence is admissible, if the bad act at issue resulted in a criminal conviction, the conviction itself is inadmissible. The rule comes from State v. Wilkerson, 356 N.C. 418 (2002), a case in which the state supreme court adopted, per curiam, Judge Wynn’s dissent in the court of appeals. Judge Wynn wrote:
[T]he bare fact of a defendant’s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose; instead, it is the facts and circumstances underlying such a conviction which hold probative value.
Judge Wynn reasoned that when the fact of a conviction is admitted, it adds no probative value but carries a prejudicial effect, meaning that admitting the bare fact of conviction violates the balancing test of Rule 403. Further, he argued, whether a defendant’s prior convictions are admissible is governed by Rule 609, which allows them to be admitted for impeachment purposes under certain circumstances. Allowing them to be admitted under Rule 404(b), in his view, would eviscerate Rule 609.
However, in the concluding paragraphs of his opinion, Judge Wynn suggested several exceptions to the general rule. He said that the bare fact of a defendant’s prior conviction should not be admitted “except in cases where our courts have recognized a categorical exception to the general rule,” such as “admitting prior sexual offenses in select sexual offense cases, and admitting prior traffic-related convictions to prove malice in second-degree murder cases.” (Emphasis supplied.)
During my class yesterday, there were some questions about the scope of the exception for “select sexual offense cases.” I wasn’t adequately prepared for the questions. This post is intended to provide a bit more detail than I was able to give yesterday.
The exception noted in Wilkerson appears to be based on State v. Hall, 85 N.C. App. 447 (1987), which is cited in the Wilkerson opinion. In Hall, the defendant was charged with attempted rape and other crimes. The state sought to introduce the defendant’s prior conviction for assault with intent to rape, in order to prove that the defendant’s intent in assaulting his current victim was to rape her. The evidence was admitted, the defendant was convicted, and the court of appeals affirmed, stating that “[w]hether a defendant’s previous conviction for a sexual offense is pertinent in his prosecution for an independent sexual crime depends on the facts in each case, and, among other things, the availability of other forms of proof.” It further explained that “evidence of the prior conviction was crucial to the State’s case due to the unavailability of other kinds of evidence of defendant’s intent.”
The distinction between the bare fact of a conviction and the conduct underlying the conviction isn’t discussed in Hall, so I don’t think that Hall is extremely strong support for the idea that the bare fact of conviction should be admissible in sexual assault cases. And there aren’t enough cases on point since Wilkerson – which was not itself a sexual assault case – to clarify the matter. The two that I found are State v. Bowman, 188 N.C. App. 635 (2005) (holding that it was error, but not reversible error, to admit the fact of the defendant’s prior convictions for sexual battery during a prosecution for aiding and abetting statutory rape and other crimes; determining the admissibility of prior convictions requires a “case-by-case inquiry,” but here, “there was substantial testimony regarding the facts underlying defendant’s prior convictions,” rendering the convictions themselves superfluous), and State v. Arnold, 2004 WL 2940866 (N.C. Ct. App. Dec. 21, 2004) (unpublished) (where the defendant was charged with failure to register as a sex offender, it was not error to admit his prior conviction for failure to register, in part because “it was the arresting officer who testified regarding [the prior] conviction . . . and [the officer] provided the court with the facts and circumstances underlying” the conviction in addition to the conviction itself).
Notice that in Bowman, the fact that the state introduced the details of the conduct underlying the defendant’s prior convictions counted against the admissibility of the convictions themselves, while in Arnold, that same circumstance counted in favor of the admissibility of the convictions. Given that Hall is not a very strong precedent and that the few post-Wilkerson cases aren’t entirely consistent, my advice to prosecutors is to not to introduce the bare fact of a defendant’s prior convictions, even in sexual assault cases, if at all possible.