Prior Convictions: How Can They Be Used in My Criminal Case?

Your prior convictions can be used in your criminal case, but that depends on whether the prior convictions are admissible in the new criminal case. The rules regarding the admissibility of prior convictions in a criminal case vary by state law and the unique circumstances of each case. In some situations, such as DUI cases, a judge may be required by law to enhance a sentence if a defendant has a prior DUI conviction on their record. Learn more in our free legal guide below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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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, including 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 and vary from state to state.

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.

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.

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 conviction may become admissible for purposes of impeaching their credibility. Such an impeachment asks the judge or jury to question the truthfulness of the defendant’s testimony. The general rule is if a prosecutor or defense attorney wants to use a prior conviction to impeach a defendant’s testimony, the prior conviction must be for a felony or a crime involving dishonesty. This means that a defendant may not be impeached with a prior conviction for a minor offense, such as possession of drug paraphernalia, which has nothing to do with dishonesty.

Even if the defendant chooses to testify, a judge will not necessarily rule that a prior conviction is admissible. Most courts use a balancing test to determine if the prior conviction should be admitted. The judge weighs the probative value of permitting the crime to be introduced against the prejudicial impact on the defendant. If the prior conviction is for a similar offense, the judge may determine that the risk is too great. In these situations, the judge uses the reasoning that the jury will decide, “If he did it before, he probably did it this time.”

Typically, a prosecutor or defense attorney can ask that a prior conviction or set of convictions be admitted as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Since the admissibility of prior convictions is an issue of evidence, it is an issue of law. There are more than one set of laws. The federal courts have their own rules of evidence. Different states have different evidence rules. Also, judges follow laws differently. The circuit’s interpretations of the rules, and the judge’s own personality, determine whether the rules will be strictly followed. Finally, the laws change. Constitutional amendments and proposed bills can affect the evidence rules. It is imperative that if you are facing criminal charges, you contact a qualified criminal defense lawyer. A criminal attorney will be able to review your record. He or she will know how the rules regarding prior convictions may affect you. Your lawyer will be able to advise you on the pros and cons of testifying. Only you can make the final decision.

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