News Release ~ 01/07/1997 A

Supreme Court Limits Unfair Prejudice in Gun Cases

Washington, DC (January 7, 1997) -- The National Association of Criminal Defense Lawyers applauds today's decision by the U.S. Supreme Court limiting prosecutors' ability to introduce highly prejudicial or inflammatory evidence in federal prosecutions of convicted felons accused of possessing a firearm. The ruling conforms with the general rule which prohibits, in most cases, the prosecution from revealing facts about a defendant's prior record.

However, in these types of firearms cases, prosecutors were using the unfair and highly prejudicial tactic of introducing the prior felony as a pretext for conveying to the jury what a "bad person" the defendant was. By including dramatic or lurid details of the alleged prior offense, prosecutors sought to convict defendants not on admissible evidence, but on character evidence which would have been inadmissible in almost any other type of case. With today's decision in Old Chief v. United States, defendants with prior felony convictions may stipulate -- simply admit -- that fact, and prosecutors will be confined to presenting evidence as to whether the defendant actually possessed a gun rather than unfairly shifting the focus of the case to past conduct. Justice David Souter wrote the majority opinion. 

"There's no way that jurors--human beings--are going to hear such prejudicial evidence and not have it affect their judgment," said Albuquerque attorney and NACDL Board member Tova Indritz, who co-authored the Association's amicus curiae brief with University of New Mexico Law Professor Barbara Bergman, also an NACDL member. "They're going to see the defendant as tainted by his past. Our system is set up to avoid convicting citizens just because they may seem like "bad persons."

The petitioner in the case, Johnny Lynn Old Chief, was arrested after a fracas involving at least one gunshot, according to the evidence at trial. Old Chief was charged not just with assault and using a firearm in a crime of violence, but also with being a felon in possession of a firearm -- a federal crime. Old Chief's prior conviction was for assault causing serious bodily injury, a felony. Because of the danger that the jury would see him as a "bad person," especially because of his prior assault conviction, Old Chief offered to stipulate to the prior conviction, which the trial court rejected. The Supreme Court reversed, holding that allowing jurors to hear the prosecutor's evidence of the prior assault could have unfairly prejudiced them.

The majority opinion also noted that instructing the jury not to hold the defendant's prior assault against him was little more than wishful thinking.

"Justice Souter shows he knows about presenting a case to a jury," Indritz said in a statement today. "He recognizes that a jury instruction doesn't automatically wipe what the jury has heard from their minds.

"Had Mr. Old Chief been tried on the new assault charge alone, prosecutors wouldn't have been able to present the prior assault to the jury. But because they added the gun charge, the court abused its discretion by letting the jury hear explicit details of his prior conviction," Indritz said.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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