EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, June 2, 2014

The Power of Priors: 11th Circuit Finds No Ineffective Assistance in Counsel Against Testifying

Federal Rule of Evidence 609(a) provides that

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:  

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:  

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and  

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and  

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

According to one famous study by Harry Kalven, Jr. and Hans Zeisel, "nationwide, juries learn of defendants' criminal records in seventy-two percent of the cases in which defendants testify in their own behalf." As a result, many such as John Blume have noted that even factually innocent defendants fail to testify on their own behalf. See John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record--Lessons from the Wrongfully Convicted, 5 J. Empirical Legal Stud. 477, 486, 490-91 (2008). 

But does this decision make sense? It is rare to see a court address the power of Rule 609(a), but that's exactly what the Eleventh Circuit did in Pericles v. United States, 2014 WL 2198514 (11th Cir. 2014).

In Pericles, Michael Pericles was charged with one count of possessing firearms and ammunition after being convicted of a felony offense, in violation of 18 U.S.C. § 922(g)(1). Prior to trial, the prosecution and defense agreed to a stipulation that Pericles had a prior felony conviction. Conversely, unless Pericles testified, the jury would not learn that he had five prior state felony convictions.

Pericles did not testify at trial, and, after he was convicted, he appealed, claiming that he was denied the effective assistance of counsel in connection with his right to testify. Specifically, Pericles contended that his attorney was ineffective by advising him "'if you take the stand they can give you more time.'" 

The Eleventh Circuit disagreed, concluding that

Pericles's testimony could have even hurt his case. As noted, the government agreed to stipulate to the fact that Pericles was previously convicted of a felony, and the jury did not learn of the rest of Pericles's extensive criminal history. If Pericles had testified, the government undoubtedly would have cross-examined him about the five state felony convictions he sustained over an eight-year criminal career. See Fed.R.Evid. 609(a)(1). The jury's impression of Pericles would likely have been unfavorable.

Frankly, I'm a little confused by the Eleventh Circuit's logic. The jury was simply asked to determine whether Pericles was guilty of one crime, and it then would have been the judge who decided what sentence to impose. That said, the above block quote certainly illustrates the judge's belief that the use of prior convictions to impeach a defendant (even when the jurors already know the defendant is a former felon) can have a significant impact on jury decisionmaking, rendering the choice not to testify a logical one.



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