AMICUS CURIAE

Amicus Curiae

In The Supreme Court of the United States

Dexter (Petitioner) v.

Michigan State Prosecutor (Respondent)

On Writ of Certiorari

To the Supreme Court of the United States

BRIEF AMICUS CURIAE OF THE

Criminal Bar Association

In Support of _____________ [respondent or petitioner]

INTRODUCTION

Many people wonder why a person charged with a crime would not testify in their own trial. The best answer is that testifying can open the flood gates to all kinds of damaging evidence. Such evidence would otherwise be inadmissible. This dangerous step is called "opening the door." Whether a defendant's prior conviction is admissible in a new criminal case depends on a number of factors. (Ellen, 2006) These are the crime of which the defendant is now accused, whether the defendant in the current case testified in a previous case, and the purpose for which the conviction is asked to be admitted. The rules regarding the admissibility of prior convictions are evidence rules. They vary from state to state.

ANALYSIS

In some situations, if a defendant loses at trial or takes a plea offer, a judge may use a defendant's prior conviction to enhance his or her sentence. Technically, this does not count as admitting the prior conviction into evidence. The judge has not put the conviction on the record to determine whether the defendant committed the crime in the current case. The judge has the discretion to use a prior conviction to enhance the sentence for the defendant in the current case. If the defendant goes to trial, the sentencing can occur separately from the trial. If the jury leaves before the sentence is imposed, they may never hear that the defendant had a prior conviction. (Osborne, 2009)In some situations, such as DUI cases, a judge may be required by law to enhance a sentence if a defendant has a prior conviction for the same type of offense on their record. Typically, prosecutors are extremely zealous. The State often seeks to introduce extremely old prior out-of-state convictions to encourage, or require, the judge to enhance a sentence. Many prosecutors also seek to introduce prior convictions of serious out-of-state felonies to ask a judge to enhance a sentence. (Michael, 2008)

Except in certain situations, such as those listed above, a criminal defendant can usually prevent admission of a prior conviction by refusing to testify at trial. As a general rule, whether a prosecutor or a defense attorney wants to introduce a defendant's prior conviction, they must notify the court, meaning the judge, of their intention. A prosecutor typically succeeds in getting a prior conviction admitted into evidence if the defendant chooses to testify or if the defendant chooses to make their character an issue in their case. Typically, a prosecutor cannot introduce a criminal conviction to prove the defendant has a bad character if the defendant has not made his or her character an issue. In addition, the prosecutor usually cannot introduce a criminal conviction to prove a defendant has or had a propensity to commit crime.

If a criminal defendant chooses to testify, their prior ...