Should A Defendant With Past Criminal Convictions Testify In A Federal Criminal Trial?  

I am a federal criminal defense lawyer who handles cases all over the State of Texas, including Dallas, Fort Worth, Plano, Sherman, El Paso, San Antonio, Lubbock, Laredo, and Del Rio.  In a federal criminal trial, I do everything I can to present my case and defenses using the Government’s witnesses.  This is because, in a criminal trial, the Government gets to go first.  That means they get to call all of their witnesses before I can call any witnesses I might want to call.  So, I have to figure out if I can get all of the facts and testimony I need from witnesses who probably do not want to help my client in any way.  

Sometimes, I know that there are facts of defenses that I will not be able to bring out from the Government’s witnesses—usually because they do not have any knowledge of them.  In that situation, my client—the defendant—may be the only source I can use.  In other situations, I may feel that it is crucial for the jury to hear my client’s side of the story from my client’s own mouth.  In both of these scenarios, I want my client to testify.  

But what if my client has one or more past criminal convictions.  If the defendant testifies, the Government may be allowed to tell the jury about a conviction that the jury might never have heard about if the defendant had not testified.  This a big price to pay, because jurors naturally think that someone who has committed a crime in the past is more likely to be guilty.  

In order to decide whether it is worth it for a defendant with a past conviction to testify, a lawyer first has to know whether the jury will be told about the conviction if the defendant testifies.  This is a complicated issue that will normally require a ruling from the judge on whether the information should be kept from the jury according to the Federal Rules of Evidence.

Rule 609 of the Federal Rules of Evidence governs the use of prior convictions to impeach a witness, meaning to try to show that the witness is not credible.  Rule 609 recognizes that a jury can reasonably conclude that someone with one or more criminal convictions may not be as honest as someone with none.  On the other hand, the rule also acknowledges that criminal convictions can be highly prejudicial, because jurors will probably think a convicted criminal is more likely to be guilty.  

Here is how Rule 609 works:

1. If the past crime involved a false statement or a dishonest act, the jury can hear about it, unless it is too old and remote (discussed below).  See Fed. R. Evid. 609(a)(2).  
2. If the past crime was a felony, the jury can hear about it the crime tends to prove the defendant’s likely guilt more than it prejudice’s the defendant, unless it is too old and remote (discussed below).  See Fed. R. Evid. 609(a)(1)(B).
3. Age of the crime.  If it has been more than ten years since the conviction or the defendant’s release from confinement, whichever is LATER, the jury can only hear about it if it is SUBSTANTIALLY more likely to prove guilt than to prejudice the defendant.  See Fed. R. Evid. 609(b). 

How can you tell, though, whether a crime is more likely to prove guilt, or is “substantially” more likely to prove guilt, than it is to prejudice the defendant?  As a practical matter, in most cases, you can’t.  You have to ask the judge to make a ruling on the issue.  

Fortunately, there is a way to ask the judge to make a ruling on whether the jury can hear about the conviction BEFORE the defendant starts testifying.  By getting a ruling BEFORE the defendant testifies, you will know whether or not the jury will hear about the crime IF the defendant testifies, and you can factor that into the decision on whether or not the defendant should testify. 

You can get a ruling on this issue by filing what is called a motion in limine.  This type of motion asks the judge to rule on an evidence issue before the trial starts.  Sometimes, a judge may wait to listen to the other evidence before making a ruling. This allows the judge to understand the facts before making a decision on how a conviction might affect the proof or prejudice the defendant.  

I have had good success using motions in limine to keep out a client’s prior convictions.  In a recent federal trial, I was able to persuade the judge not to allow the Government to tell the jury about my client’s multiple convictions, even if he testified.  I did this by showing that none of them involved dishonesty or a false statement and that none of them were even remotely related to the crime my client was charged with committing in the trial.  Once the judge had made this ruling, the decision about whether my client should testify was a lot easier, since we knew in advance that testifying would not mean the jury would hear about his convictions.  

If you have one or more criminal convictions and you are facing a federal criminal trial, whether to testify can be a very difficult, but very important, decision.   The outcome of your case may depend on it.  You need a lawyer who knows how to navigate the Federal Rules of Evidence, and more importantly, you need an experienced trial lawyer who knows how a jury will react to the prior conviction in the context of your trial.  Don’t wait.  Contact an experienced federal criminal defense trial lawyer as soon as possible, so that the lawyer had time before the trial starts to prepare for issues like this.