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June 28, 2014
"Juries and Prior Convictions: Managing the Demise of the Prior Conviction Exception to Apprendi"
The title of this post is the title of this notable new paper by Nancy King now available via SSRN. Here is the abstract:
This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey. It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted.
These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants. For courts and legislatures interested in anticipating this development in Apprendi law, or interested in joining the states that already recognize that a prior conviction must be proven like any other element whenever it increases the penalty range beyond the range allowed without the conviction, this essay provides a handy reference to existing rules and statutes that could serve as blueprints for reform.
June 28, 2014 at 06:37 PM | Permalink
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I'll perhaps comment more after I've read the article, but I just want to point out that there's a difference between saying that other mechanisms are available to prevent juror prejudice and saying that those mechanisms would be used instead. The prior conviction exception allows both sides to get something (the prosecution saves work, the defense avoids the jury making an improper propensity inference). But, if a prosecution is required to present the evidence to a jury, how many prosecutors are going to push for presenting it in their case in chief and would oppose any attempt to sanitize their evidence? How many legislatures would bother providing for bifurcation when they know this will force recidivist defendants to enter a plea instead? Short of a mandatory rule, it's not going to make up for the demise of this rule.
I also don't entirely see the inconsistency. The rule now requires punishment only for facts the defendant has admitted or a jury has found guilt on. It's an extension of that rule to require admission or finding in the same trial. In other areas (such as the confrontation clause), a prior adversarial hearing is sufficient to comply with the requirements. I don't see why they couldn't follow the same rule here.
Posted by: Erik M | Jun 30, 2014 10:40:36 AM