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What Evidence of Prior Criminal History Can the Government Introduce Against Defendants Charged with Being a Felon in Possession of a Firearm?

Under the Federal Rules of Evidence, the Government generally cannot use evidence of a defendant's prior bad acts to prove that a defendant committed the crime charged. Under Rule 404(b) of the Federal Rules of Evidence states that evidence of crimes, wrongs or other acts are not admissible to prove a person's character to show that they acted in accordance with that character on a particular occasion. Similarly, Rule 403 prohibits introducing evidence when its evidentiary weight would be substantially outweighed by the danger of unfair prejudice, confusion, undue delay, wasting time, or needlessly presenting cumulative evidence. 

While these Rules prevent prosecutors from inflaming the jury's passions by divulging a defendant's criminal history, their application can become murky when a defendant is charged with a crime like possession of a firearm by a felon, which requires looking at a defendant's criminal history as an element of the offense. One strategy criminal defense attorneys employ in such situations is to enter a stipulation that the defendant is a convicted felon. In a Supreme Court decision called Old Chief v. United States, the Court held that a prosecutor could not reveal a defendant's full criminal history in such cases when there is a stipulation of a prior felony conviction, since such evidence is needless cumulative and prejudicial. However, the Court stopped short of absolutely forbidding the jury from learning any details of a defendant's prior criminal record.

The Eleventh Circuit recently took up the issue of whether a jury can know that a defendant charged with being a felon in possession of a firearm has been convicted of more than one felony. The case, United States v. Green, involved a felon-in-possession defendant with 12 prior felony convictions. Even though Mr. Green's stipulated that he was a convicted felon, so the court submitted the indictment to the jury with Green's criminal history redacted. However, the jury was still shown a passage that read "for each of these crimes, Robert William Green was subject to punishment by a term of imprisonment of more than one year."

Green's criminal defense attorney argued that by using the word "crimes," plural, the prosecutors had divulged too much information to the jury, since it alerted them to the fact that Green had more than one felony conviction. The appellate courts throughout the nation are, apparently, divided. The Eighth Circuit, for instance, requires the use of the word "crimes" in such situations, reasoning that to do otherwise would create the false impression that the defendant only had one conviction. The Eleventh Circuit opted to join the Seventh Circuit and Fifth Circuit, which have reasoned that tipping the jury off to the fact that a defendant has multiple felony convictions is unnecessary and prejudicial where the offense at issue only requires proof of a single conviction.

Unfortunately for Mr. Green, the Eleventh Circuit concluded that the error was harmless in light of the significant amount of evidence the Government brought against him. However, in cases where the Government has a weak case, criminal defense attorneys could use this decision to potentially overturn a criminal conviction for possessing a firearm with a felony conviction.

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Sheppard, White, Kachergus, & DeMaggio, P.A. Attorneys & Counselors at Law.
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