OCTOBER TERM, 1996
Syllabus
OLD CHIEF
v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 95-6556. Argued October 16, 1996-Decided January 7, 1997
After a fracas involving at least one gunshot, petitioner, Old
Chief, was charged with,
inter alia, violating 18 U. S. C. §
922(g)(I), which prohibits possession of a firearm by anyone with a
prior felony conviction. He offered to stipulate to § 922(g)(I)'s
prior-conviction element, arguing that his offer rendered evidence
of the name and nature of his prior offenseassault causing serious
bodily injury-inadmissible because its "probative value [was]
substantially outweighed by the danger of unfair prejudice ... ,"
Fed. Rule Evid. 403. The Government refused to join the
stipulation, however, insisting on its right to present its own
evidence of the prior conviction, and the District Court agreed. At
trial, the Government introduced the judgment record for the prior
conviction, and a jury convicted Old Chief. In affirming the
conviction, the Court of Appeals found that the Government was
entitled to introduce probative evidence to prove the prior offense
regardless of the stipulation offer.
Held: A district court abuses its discretion under Rule
403 if it spurns a defendant's offer to concede a prior judgment
and admits the full judgment record over the defendant's objection,
when the name or nature of the prior offense raises the risk of a
verdict tainted by improper considerations, and when the purpose of
the evidence is solely to prove the element of prior conviction.
Pp. 178-192.
(a) Contrary to Old Chief's position, the name of his prior
offense as contained in the official record is relevant to the
prior-conviction element. That record made his § 922(g)(I) status
"more probable ... than it [would have been] without the evidence,"
Fed. Rule Evid. 401; and the availability of alternative proofs,
such as his admission, did not affect its evidentiary relevance,
see Advisory Committee's Notes on Fed. Rule Evid. 401, 28 U. S. C.
App., p. 859. pp. 178-179.
(b) As to a criminal defendant, Rule 403's term "unfair
prejudice" speaks to the capacity of some concededly relevant
evidence to lure the factfinder into declaring guilt on an improper
basis rather than on proof specific to the offense charged. Such
improper grounds certainly include generalizing from a past bad act
that a defendant is by propensity the probable perpetrator of the
current crime. Thus, Rule 403 requires that the relative probative
value of prior-conviction evidence be bal-
173
anced against its prejudicial risk of misuse. A judge should
balance these factors not only for the item in question but also
for any actually available substitutes. If an alternative were
found to have substantially the same or greater probative value but
a lower danger of unfair prejudice, sound judicial discretion would
discount the value of the item first offered and exclude it if its
discounted probative value were substantially outweighed by
unfairly prejudicial risk. Pp. 180-185.
(c) In dealing with the specific problem raised by § 922(g)(1)
and its prior-conviction element, there can be no question that
evidence of the name or nature of the prior offense generally
carries a risk of unfair prejudice whenever the official record
would be arresting enough to lure a juror into a sequence of bad
character reasoning. Old Chief sensibly worried about the
prejudicial effect of his prior offense. His proffered admission
also presented the District Court with alternative, relevant,
admissible, and seemingly conclusive evidence of the prior
conviction. Thus, while the name of the prior offense may have been
technically relevant, it addressed no detail in the definition of
the prior-conviction element that would not have been covered by
the stipulation or admission. Pp. 185-186.
(d) Old Chief's offer supplied evidentiary value at least
equivalent to what the Government's own evidence carried. The
accepted rule that the prosecution is entitled to prove its case
free from any defendant's option to stipulate the evidence away has
virtually no application when the point at issue is a defendant's
legal status. Here, the most the jury needed to know was that the
conviction admitted fell within the class of crimes that Congress
thought should bar a convict from possessing a gun. More obviously,
the proof of status went to an element entirely outside the natural
sequence of what Old Chief was charged with thinking and doing to
commit the current offense. Since there was no cognizable
difference between the evidentiary significance of the admission
and the official record's legitimately probative component, and
since the functions of the competing evidence were distinguishable
only by the risk inherent in the one and wholly absent from the
other, the only reasonable conclusion was that the risk of unfair
prejudice substantially outweighed the conviction record's
discounted probative value. Thus, it was an abuse of discretion to
admit the conviction record when the defendant's admission was
available. Pp. 186-192.
56 F.3d
75, reversed and remanded.
SOUTER, J., delivered the opinion of the Court, in which
STEVENS, KENNEDY, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J.,
filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA
and THOMAS, JJ., joined,
post, p. 192.
174
Daniel Donovan argued the cause for petitioner. With him
on the briefs was
Anthony R. Gallagher.
Miguel A. Estrada argued the cause for the United
States.
On the brief were Solicitor General Days, Acting Assistant
Attorney General Keeney, Deputy Solicitor General Dreeben, Alan
Jenkins, and Thomas E. Booth. *
JUSTICE SOUTER delivered the opinion of the Court. Subject to
certain limitations, 18 U. S. C. § 922(g)(1) prohibits possession
of a firearm by anyone with a prior felony conviction, which the
Government can prove by introducing a record of judgment or similar
evidence identifying the previous offense. Fearing prejudice if the
jury learns the nature of the earlier crime, defendants sometimes
seek to avoid such an informative disclosure by offering to concede
the fact of the prior conviction. The issue here is whether a
district court abuses its discretion if it spurns such an offer and
admits the full record of a prior judgment, when the name or nature
of the prior offense raises the risk of a verdict tainted by
improper considerations, and when the purpose of the evidence is
solely to prove the element of prior conviction.1 We hold that it
does.
I
In 1993, petitioner, Old Chief, was arrested after a fracas
involving at least one gunshot. The ensuing federal charges
included not only assault with a dangerous weapon and using a
firearm in relation to a crime of violence but violation of 18 U.
S. C. § 922(g)(1). This statute makes it unlawful for anyone "who
has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year" to "possess in or
affecting commerce, any firearm .... " "[A]
*Tova Indritz and
Barbara Bergman filed a brief
for the National Association of Criminal Defense Lawyers as
amicus curiae.
1 The standard of review applicable to the evidentiary rulings
of the district court is abuse of discretion.
United States
v.
Abel, 469 U.
S. 45, 54-55 (1984).
175
crime punishable by imprisonment for a term exceeding one year"
is defined to exclude "any Federal or State offenses pertaining to
antitrust violations, unfair trade practices, restraints of trade,
or other similar offenses relating to the regulation of business
practices" and "any State offense classified by the laws of the
State as a misdemeanor and punishable by a term of imprisonment of
two years or less." § 921(a)(20).
The earlier crime charged in the indictment against Old Chief
was assault causing serious bodily injury. Before trial, he moved
for an order requiring the Government "to refrain from
mentioning-by reading the Indictment, during jury selection, in
opening statement, or closing argumentand to refrain from offering
into evidence or soliciting any testimony from any witness
regarding the prior criminal convictions of the Defendant,
except to state that the Defendant has been convicted of a
crime punishable by imprisonment exceeding one (1) year." App.6. He
said that revealing the name and nature of his prior assault
conviction would unfairly tax the jury's capacity to hold the
Government to its burden of proof beyond a reasonable doubt on
current charges of assault, possession, and violence with a
firearm, and he offered to "solve the problem here by stipulating,
agreeing and requesting the Court to instruct the jury that he has
been convicted of a crime punishable by imprisonment exceeding one
(1) yea[r]."
Id., at 7. He argued that the offer to
stipulate to the fact of the prior conviction rendered evidence of
the name and nature of the offense inadmissible under Rule 403 of
the Federal Rules of Evidence, the danger being that unfair
prejudice from that evidence would substantially outweigh its
probative value. He also proposed this jury instruction:
"The phrase 'crime punishable by imprisonment for a term
exceeding one year' generally means a crime which is a felony. The
phrase does not include any state offense classified by the laws of
that state as a misde-
176
meanor and punishable by a term of imprisonment of two years or
less and certain crimes concerning the regulation of business
practices.
"[I] hereby instruct you that Defendant JOHNNY LYNN OLD CHIEF
has been convicted of a crime punishable by imprisonment for a term
exceeding one year."
Id., at 11.2
2 Proposals for instructing the jury in this case proved to be
perilous.
We will not discuss Old Chief's proposed instruction beyond
saying that, even on his own legal theory, revision would have been
required to dispel ambiguity. The jury could not have said whether
the instruction that Old Chief had been convicted of a crime
punishable by imprisonment for more than one year meant that, as a
matter of law, his conviction fell within the definition of "crime
punishable by imprisonment for a term exceeding one year," or was
instead merely a statement of fact, in which case the jurors could
not have determined whether the predicate offense was within one of
the statute's categorical exceptions, a "state ... misdemeanor ...
punishable by a term ... of two years or less" or a "business"
crime. The District Court did not, however, deny Old Chief's motion
because of the artless instruction he proposed, but because of the
general rule, to be discussed below, that permits the Government to
choose its own evidence.
While Old Chief's proposed instruction was defective even under
the law as he viewed it, the instruction actually given was
erroneous even on the Government's view of the law. The District
Court charged, "You have also heard evidence that the defendant has
previously been convicted of a felony. You may consider that
evidence only as it may affect the defendant's believability as a
witness. You may not consider a prior conviction as evidence of
guilt of the crime for which the defendant is now on trial." App.
31. This instruction invited confusion. First, of course, if the
jury had applied it literally there would have been an acquittal
for the wrong reason: Old Chief was on trial for, among other
offenses, being a felon in possession, and if the jury had not
considered the evidence of prior conviction it could not have found
that he was a felon. Second, the remainder of the instruction
referred to an issue that was not in the case. While it is true
that prior-offense evidence may in a proper case be admissible for
impeachment, even if for no other purpose, Fed. Rule Evid. 609,
petitioner did not testify at trial; there was no justification for
admitting the evidence for impeachment purposes and consequently no
basis for the District Court's suggestion that the jurors could
consider the prior conviction as impeachment evidence. The fault
for this error lies at least as much with Old Chief as with the
District Court, since Old Chief apparently sought
177
The Assistant United States Attorney refused to join in a
stipulation, insisting on his right to prove his case his own way,
and the District Court agreed, ruling orally that, "If he doesn't
want to stipulate, he doesn't have to."
Id., at 15-16. At
trial, over renewed objection, the Government introduced the order
of judgment and commitment for Old Chief's prior conviction. This
document disclosed that on December 18, 1988, he "did knowingly and
unlawfully assault Rory Dean Fenner, said assault resulting in
serious bodily injury," for which Old Chief was sentenced to five
years' imprisonment.
Id., at 18-19. The jury found Old Chief
guilty on all counts, and he appealed.
The Ninth Circuit addressed the point with brevity:
"Regardless of the defendant's offer to stipulate, the
government is entitled to prove a prior felony offense through
introduction of probative evidence. See United States v.
Breitkreutz, 8 F.3d
688, 690 (9th Cir. 1993) (citing United States v.
Gilman, 684 F.2d
616, 622 (9th Cir. 1982)). Under Ninth Circuit law, a
stipulation is not proof, and, thus, it has no place in the FRE 403
balancing process. Breitkreutz, 8 F.3d
691-92.
"Thus, we hold that the district court did not abuse its
discretion by allowing the prosecution to introduce evidence of Old
Chief's prior conviction to prove that element of the unlawful
possession charge." No. 9430277, 1995 WL 325745, *1 (CA9, May 31,
1995) (unpublished), App. 50-51, judgt. order reported at 56 F.3d
75 (1995).
We granted Old Chief's petition for writ of certiorari, 516 U.
S. 1110 (1996), because the Courts of Appeals have divided sharply
in their treatment of defendants' efforts to exclude evidence of
the names and natures of prior offenses in cases like this.
Compare,
e. g.,
United States v.
Burkhart,
545
some such instruction and withdrew the request only after the
court had charged the jury.
178
F. 2d 14, 15 (CA6 1976);
United States v.
Smith,
520 F.2d
544, 548 (CA8 1975), cert. denied, 429 U. S. 925 (1976); and
United States v.
Breitkreutz, 8 F.3d
688, 690-692 (CA9 1993) (each recognizing a right on the part
of the Government to refuse an offered stipulation and proceed with
its own evidence of the prior offense), with
United States
v.
Tavares, 21 F.3d
1, 3-5 (CAl1994) (en bane);
United States v.
Poore, 594 F.2d
39, 40-43 (CA4 1979);
United States v.
Wacker,
72 F.3d
1453, 1472-1473 (CAlO 1995); and
United States v.
Jones, 67 F. 3d 320, 322-325 (CADC 1995) (each holding that
the defendant's offer to stipulate to or to admit to the prior
conviction triggers an obligation of the district court to
eliminate the name and nature of the underlying offense from the
case by one means or another). We now reverse the judgment of the
Ninth Circuit.
II A
As a threshold matter, there is Old Chief's erroneous argument
that the name of his prior offense as contained in the record of
conviction is irrelevant to the prior-conviction element, and for
that reason inadmissible under Rule 402 of the Federal Rules of
Evidence.3 Rule 401 defines relevant evidence as having "any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence." Fed. Rule Evid. 401. To be
sure, the fact that Old Chief's prior conviction was for assault
resulting in serious bodily injury rather than, say, for theft was
not itself an ultimate fact, as if the statute had specifically
required proof of injurious assault. But its demonstration
3 "All relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, by Act of
Congress, by these rules, or by other rules prescribed by the
Supreme Court pursuant to statutory authority. Evidence which is
not relevant is not admissible." Fed. Rule Evid.402.
179
was a step on one evidentiary route to the ultimate fact, since
it served to place Old Chief within a particular subclass of
offenders for whom firearms possession is outlawed by § 922(g)(1).
A documentary record of the conviction for that named offense was
thus relevant evidence in making Old Chief's § 922(g)(1) status
more probable than it would have been without the evidence.
Nor was its evidentiary relevance under Rule 401 affected by the
availability of alternative proofs of the element to which it went,
such as an admission by Old Chief that he had been convicted of a
crime "punishable by imprisonment for a term exceeding one year"
within the meaning of the statute. The 1972 Advisory Committee
Notes to Rule 401 make this point directly:
"The fact to which the evidence is directed need not be in
dispute. While situations will arise which call for the exclusion
of evidence offered to prove a point conceded by the opponent, the
ruling should be made on the basis of such considerations as waste
of time and undue prejudice (see Rule 403), rather than under any
general requirement that evidence is admissible only if directed to
matters in dispute." Advisory Committee's Notes on Fed. Rule Evid.
401, 28 U. S. C. App., p. 859.
If, then, relevant evidence is inadmissible in the presence of
other evidence related to it, its exclusion must rest not on the
ground that the other evidence has rendered it "irrelevant," but on
its character as unfairly prejudicial, cumulative or the like, its
relevance notwithstanding.4
4 Viewing evidence of the name of the prior offense as relevant,
there is no reason to dwell on the Government's argument that
relevance is to be determined with respect to the entire item
offered in evidence (here, the entire record of conviction) and not
with reference to distinguishable subunits of that object (here,
the name of the offense and the sentence received). We see no
impediment in general to a district court's determination, after
objection, that some sections of a document are relevant within
180
B
The principal issue is the scope of a trial judge's discretion
under Rule 403, which authorizes exclusion of relevant evidence
when its "probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Fed. Rule Evid. 403.
Old Chief relies on the danger of unfair prejudice.5
1
The term "unfair prejudice," as to a criminal defendant, speaks
to the capacity of some concededly relevant evidence to lure the
factfinder into declaring guilt on a ground different from proof
specific to the offense charged. See generally 1 J. Weinstein, M.
Berger, & J. McLaughlin, Weinstein's Evidence, 403[03] (1996)
(discussing the meaning of "unfair prejudice" under Rule 403). So,
the Committee Notes to Rule 403 explain, "'Unfair prejudice' within
its context means an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional
one." Advisory Committee's Notes on Fed. Rule Evid. 403, 28 U. S.
C. App., p. 860.
Such improper grounds certainly include the one that Old Chief
points to here: generalizing a defendant's earlier bad act into bad
character and taking that as raising the odds that he did the later
bad act now charged (or, worse, as call-
the meaning of Rule 401, and others irrelevant and inadmissible
under Rule 402.
5 Petitioner also suggests that we might find a prosecutor's
refusal to accept an adequate stipulation and jury instruction in
the narrow context presented by this case to be prosecutorial
misconduct. The argument is that, since a prosecutor is charged
with the pursuit of just convictions, not victory by fair means or
foul, any ethical prosecutor must agree to stipulate in the
situation here. But any ethical obligation will depend on the
construction of Rule 403, and we have no reason to anticipate
related ethicallapses once the meaning of the Rule is settled.
181
ing for preventive conviction even if he should happen to be
innocent momentarily). As then-Judge Breyer put it, "Although ...
'propensity evidence' is relevant, the risk that a jury will
convict for crimes other than those charged-or that, uncertain of
guilt, it will convict anyway because a bad person deserves
punishment-creates a prejudicial effect that outweighs ordinary
relevance."
United States v.
Moccia, 681 F.2d
61, 63 (CAl1982). Justice Jackson described how the law has
handled this risk:
"Courts that follow the common-law tradition almost unanimously
have come to disallow resort by the prosecution to any kind of
evidence of a defendant's evil character to establish a probability
of his guilt. Not that the law invests the defendant with a
presumption of good character, Greer v. United
States, 245 U. S.
559, but it simply closes the whole matter of character,
disposition and reputation on the prosecution's case-in-chief. The
state may not show defendant's prior trouble with the law, specific
criminal acts, or ill name among his neighbors, even though such
facts might logically be persuasive that he is by propensity a
probable perpetrator of the crime. The inquiry is not rejected
because character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overpersuade them as to
prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge. The overriding
policy of excluding such evidence, despite its admitted probative
value, is the practical experience that its disallowance tends to
prevent confusion of issues, unfair surprise and undue prejudice."
Michelson v. United States, 335 U. S. 469, 475-476
(1948) (footnotes omitted).
Rule of Evidence 404(b) reflects this common-law tradition by
addressing propensity reasoning directly: "Evidence of other
crimes, wrongs, or acts is not admissible to prove the
182
character of a person in order to show action in conformity
therewith." Fed. Rule Evid. 404(b). There is, accordingly, no
question that propensity would be an "improper basis" for
conviction and that evidence of a prior conviction is subject to
analysis under Rule 403 for relative probative value and for
prejudicial risk of misuse as propensity evidence. Cf. 1 J. Strong,
McCormick on Evidence 780 (4th ed. 1992) (hereinafter McCormick)
(Rule 403 prejudice may occur, for example, when "evidence of
convictions for prior, unrelated crimes may lead a juror to think
that since the defendant already has a criminal record, an
erroneous conviction would not be quite as serious as would
otherwise be the case").
As for the analytical method to be used in Rule 403 balancing,
two basic possibilities present themselves. An item of evidence
might be viewed as an island, with estimates of its own probative
value and unfairly prejudicial risk the sole reference points in
deciding whether the danger substantially outweighs the value and
whether the evidence ought to be excluded. Or the question of
admissibility might be seen as inviting further comparisons to take
account of the full evidentiary context of the case as the court
understands it when the ruling must be made.6 This second approach
would start out like the first but be ready to go further. On
objection, the court would decide whether a particular item of
evidence raised a danger of unfair prejudice. If it did, the judge
would go on to evaluate the degrees of probative value and unfair
prejudice not only for the item in question but for any actually
available substitutes as well. If an alternative
6 It is important that a reviewing court evaluate the trial
court's decision from its perspective when it had to rule and not
indulge in review by hindsight. See, for example,
United
States v.
O'Shea, 724 F.2d
1514, 1517 (CAll 1984), where the appellate court approved the
trial court's pretrial refusal to impose a stipulation on the
Government and exclude the Government's corresponding evidence of
past convictions because the trial court had found at that stage
that the evidence would quite likely come in anyway on other
grounds.
183
were found to have substantially the same or greater probative
value but a lower danger of unfair prejudice, sound judicial
discretion would discount the value of the item first offered and
exclude it if its discounted probative value were substantially
outweighed by unfairly prejudicial risk. As we will explain later
on, the judge would have to make these calculations with an
appreciation of the offering party's need for evidentiary richness
and narrative integrity in presenting a case, and the mere fact
that two pieces of evidence might go to the same point would not,
of course, necessarily mean that only one of them might come in. It
would only mean that a judge applying Rule 403 could reasonably
apply some discount to the probative value of an item of evidence
when faced with less risky alternative proof going to the same
point. Even under this second approach, as we explain below, a
defendant's Rule 403 objection offering to concede a point
generally cannot prevail over the Government's choice to offer
evidence showing guilt and all the circumstances surrounding the
offense. See
infra, at 186-189.7
The first understanding of the Rule is open to a very telling
objection. That reading would leave the party offering evidence
with the option to structure a trial in whatever way would produce
the maximum unfair prejudice consistent with relevance. He could
choose the available alternative carrying the greatest threat of
improper influence, despite the availability of less prejudicial
but equally probative evidence. The worst he would have to fear
would be a ruling sustaining a Rule 403 objection, and if that
occurred, he could simply fall back to offering substitute
evidence. This would be a strange rule. It would be very odd for
the law
7While our discussion has been general because of the general
wording of Rule 403, our holding is limited to cases involving
proof of felon status. On appellate review of a Rule 403 decision,
a defendant must establish abuse of discretion, a standard that is
not satisfied by a mere showing of some alternative means of proof
that the prosecution in its broad discretion chose not to rely
upon.
184
of evidence to recognize the danger of unfair prejudice only to
confer such a degree of autonomy on the party subject to
temptation, and the Rules of Evidence are not so odd.
Rather, a reading of the companions to Rule 403, and of the
commentaries that went with them to Congress, makes it clear that
what counts as the Rule 403 "probative value" of an item of
evidence, as distinct from its Rule 401 "relevance," may be
calculated by comparing evidentiary alternatives. The Committee
Notes to Rule 401 explicitly say that a party's concession is
pertinent to the court's discretion to exclude evidence on the
point conceded. Such a concession, according to the Notes, will
sometimes "call for the exclusion of evidence offered to prove
[the] point conceded by the opponent .... " Advisory Committee's
Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 859. As already
mentioned, the Notes make it clear that such rulings should be made
not on the basis of Rule 401 relevance but on "such considerations
as waste of time and undue prejudice (see Rule 403) .... "
Ibid. The Notes to Rule 403 then take up the point by
stating that when a court considers "whether to exclude on grounds
of unfair prejudice," the "availability of other means of proof may
... be an appropriate factor." Advisory Committee's Notes on Fed.
Rule Evid. 403, 28 U. S. C. App., p. 860. The point gets a reprise
in the Notes to Rule 404(b), dealing with admissibility when a
given evidentiary item has the dual nature of legitimate evidence
of an element and illegitimate evidence of character: "No
mechanical solution is offered. The determination must be made
whether the danger of undue prejudice outweighs the probative value
of the evidence in view of the availability of other means of proof
and other facts appropriate for making decision of this kind under
403." Advisory Committee's Notes on Fed. Rule Evid. 404, 28 U. S.
C. App., p. 861. Thus the notes leave no question that when Rule
403 confers discretion by providing that evidence "may" be
excluded, the discretionary judgment may be informed not only by
assessing an evidentiary item's
185
twin tendencies, but by placing the result of that assessment
alongside similar assessments of evidentiary alternatives. See 1
McCormick 782, and n. 41 (suggesting that Rule 403's "probative
value" signifies the "marginal probative value" of the evidence
relative to the other evidence in the case); 22 C. Wright & K.
Graham, Federal Practice and Procedure § 5250, pp. 546-547 (1978)
("The probative worth of any particular bit of evidence is
obviously affected by the scarcity or abundance of other evidence
on the same point").
2
In dealing with the specific problem raised by § 922(g)(1) and
its prior-conviction element, there can be no question that
evidence of the name or nature of the prior offense generally
carries a risk of unfair prejudice to the defendant. That risk will
vary from case to case, for the reasons already given, but will be
substantial whenever the official record offered by the Government
would be arresting enough to lure a juror into a sequence of bad
character reasoning. Where a prior conviction was for a gun crime
or one similar to other charges in a pending case the risk of
unfair prejudice would be especially obvious, and Old Chief
sensibly worried that the prejudicial effect of his prior assault
conviction, significant enough with respect to the current gun
charges alone, would take on added weight from the related assault
charge against him.8
8 It is true that a prior offense may be so far removed in time
or nature from the current gun charge and any others brought with
it that its potential to prejudice the defendant unfairly will be
minimal. Some prior offenses, in fact, may even have some potential
to prejudice the Government's case unfairly. Thus an extremely old
conviction for a relatively minor felony that nevertheless
qualifies under the statute might strike many jurors as a foolish
basis for convicting an otherwise upstanding member of the
community of otherwise legal gun possession. Since the Government
could not, of course, compel the defendant to admit formally the
existence of the prior conviction, the Government would have to
bear the risk of jury nullification, a fact that might properly
drive the Government's charging decision.
186
The District Court was also presented with alternative,
relevant, admissible evidence of the prior conviction by Old
Chief's offer to stipulate, evidence necessarily subject to the
District Court's consideration on the motion to exclude the record
offered by the Government. Although Old Chief's formal offer to
stipulate was, strictly, to enter a formal agreement with the
Government to be given to the jury, even without the Government's
acceptance his proposal amounted to an offer to admit that the
prior-conviction element was satisfied, and a defendant's admission
is, of course, good evidence. See Fed. Rule Evid. 801(d)(2)(A).
Old Chief's proffered admission would, in fact, have been not
merely relevant but seemingly conclusive evidence of the element.
The statutory language in which the priorconviction requirement is
couched shows no congressional concern with the specific name or
nature of the prior offense beyond what is necessary to place it
within the broad category of qualifying felonies, and Old Chief
clearly meant to admit that his felony did qualify, by stipulating
"that the Government has proven one of the essential elements of
the offense." App. 7. As a consequence, although the name of the
prior offense may have been technically relevant, it addressed no
detail in the definition of the prior-conviction element that would
not have been covered by the stipulation or admission. Logic, then,
seems to side with Old Chief.
3
There is, however, one more question to be considered before
deciding whether Old Chief's offer was to supply evidentiary value
at least equivalent to what the Government's own evidence carried.
In arguing that the stipulation or admission would not have carried
equivalent value, the Government invokes the familiar, standard
rule that the prosecution is entitled to prove its case by evidence
of its own choice, or, more exactly, that a criminal defendant may
not stipulate or admit his way out of the full evidentiary force of
the case as
187
the Government chooses to present it. The authority usually
cited for this rule is
Parr v.
United States,
255 F.2d
86 (CA5), cert. denied, 358 U. S. 824 (1958), in which the
Fifth Circuit explained that the "reason for the rule is to permit
a party 'to present to the jury a picture of the events relied
upon. To substitute for such a picture a naked admission might have
the effect to rob the evidence of much of its fair and legitimate
weight.''' 255 F. 2d, at 88 (quoting
Dunning
This is unquestionably true as a general matter. The "fair and
legitimate weight" of conventional evidence showing individual
thoughts and acts amounting to a crime reflects the fact that
making a case with testimony and tangible things not only satisfies
the formal definition of an offense, but tells a colorful story
with descriptive richness. Unlike an abstract premise, whose force
depends on going precisely to a particular step in a course of
reasoning, a piece of evidence may address any number of separate
elements, striking hard just because it shows so much at once; the
account of a shooting that establishes capacity and causation may
tell just as much about the triggerman's motive and intent.
Evidence thus has force beyond any linear scheme of reasoning, and
as its pieces come together a narrative gains momentum, with power
not only to support conclusions but to sustain the willingness of
jurors to draw the inferences, whatever they may be, necessary to
reach an honest verdict. This persuasive power of the concrete and
particular is often essential to the capacity of jurors to satisfy
the obligations that the law places on them. Jury duty is usually
unsought and sometimes resisted, and it may be as difficult for one
juror suddenly to face the findings that can send another human
being to prison, as it is for another to hold out conscientiously
for acquittal. When a juror's duty does seem hard, the evidentiary
account of what a defendant has thought and done can accomplish
what no set of abstract statements ever could, not just to prove a
fact but to establish its human signifi-
188
cance, and so to implicate the law's moral underpinnings and a
juror's obligation to sit in judgment. Thus, the prosecution may
fairly seek to place its evidence before the jurors, as much to
tell a story of guiltiness as to support an inference of guilt, to
convince the jurors that a guilty verdict would be morally
reasonable as much as to point to the discrete elements of a
defendant's legal fault. Cf.
United States v.
Gilliam, 994 F.2d
97, 100-102 (CA2), cert. denied, 510 U. S. 927 (1993).
But there is something even more to the prosecution's interest
in resisting efforts to replace the evidence of its choice with
admissions and stipulations, for beyond the power of conventional
evidence to support allegations and give life to the moral
underpinnings of law's claims, there lies the need for evidence in
all its particularity to satisfy the jurors' expectations about
what proper proof should be. Some such demands they bring with them
to the courthouse, assuming, for example, that a charge of using a
firearm to commit an offense will be proven by introducing a gun in
evidence. A prosecutor who fails to produce one, or some good
reason for his failure, has something to be concerned about. "If
[jurors'] expectations are not satisfied, triers of fact may
penalize the party who disappoints them by drawing a negative
inference against that party." Saltzburg, A Special Aspect of
Relevance: Countering Negative Inferences Associated with the
Absence of Evidence, 66 Calif. L. Rev. 1011, 1019 (1978) (footnotes
omitted).9 Expectations may also arise in
9Cf. Green, "The Whole Truth?"; How Rules of Evidence Make
Lawyers Deceitful, 25 Loyola (LA) L. Rev. 699, 703 (1992)
("[E]videntiary rules ... predicated in large measure on the law's
distrust of juries [can] have the unintended, and perhaps ironic,
result of encouraging the jury's distrust of lawyers. The rules do
so by fostering the perception that lawyers are deliberately
withholding evidence" (footnote omitted)). The fact that juries
have expectations as to what evidence ought to be presented by a
party, and may well hold the absence of that evidence against the
party, is also recognized in the case law of the Fifth Amendment,
which explicitly
189
jurors' minds simply from the experience of a trial itself. The
use of witnesses to describe a train of events naturally related
can raise the prospect of learning about every ingredient of that
natural sequence the same way. If suddenly the prosecution presents
some occurrence in the series differently, as by announcing a
stipulation or admission, the effect may be like saying, "never
mind what's behind the door," and jurors may well wonder what they
are being kept from knowing. A party seemingly responsible for
cloaking something has reason for apprehension, and the prosecution
with its burden of proof may prudently demur at a defense request
to interrupt the flow of evidence telling the story in the usual
way.
In sum, the accepted rule that the prosecution is entitled to
prove its case free from any defendant's option to stipulate the
evidence away rests on good sense. A syllogism is not a story, and
a naked proposition in a courtroom may be no match for the robust
evidence that would be used to prove it. People who hear a story
interrupted by gaps of abstraction may be puzzled at the missing
chapters, and jurors asked to rest a momentous decision on the
story's truth can feel put upon at being asked to take
responsibility knowing that more could be said than they have
heard. A convincing tale can be told with economy, but when economy
becomes a break in the natural sequence of narrative evidence, an
assurance that the missing link is really there is never more than
second best.
supposes that, despite the venerable history of the privilege
against selfincrimination, jurors may not recall that someone
accused of crime need not explain the evidence or avow innocence
beyond making his plea. See,
e. g., Lakeside v.
Oregon, 435 U.
S. 333,340, and n. 10 (1978). The assumption that jurors may
have contrary expectations and be moved to draw adverse inferences
against the party who disappoints them undergirds the rule that a
defendant can demand an instruction forbidding the jury to draw
such an inference.
190
This recognition that the prosecution with its burden of
persuasion needs evidentiary depth to tell a continuous story has,
however, virtually no application when the point at issue is a
defendant's legal status, dependent on some judgment rendered
wholly independently of the concrete events of later criminal
behavior charged against him. As in this case, the choice of
evidence for such an element is usually not between eventful
narrative and abstract proposition, but between propositions of
slightly varying abstraction, either a record saying that
conviction for some crime occurred at a certain time or a statement
admitting the same thing without naming the particular offense. The
issue of substituting one statement for the other normally arises
only when the record of conviction would not be admissible for any
purpose beyond proving status, so that excluding it would not
deprive the prosecution of evidence with multiple utility; if,
indeed, there were a justification for receiving evidence of the
nature of prior acts on some issue other than status (i.
e.,
to prove "motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident," Fed. Rule
Evid. 404(b)), Rule 404(b) guarantees the opportunity to seek its
admission. Nor can it be argued that the events behind the prior
conviction are proper nourishment for the jurors' sense of
obligation to vindicate the public interest. The issue is not
whether concrete details of the prior crime should come to the
jurors' attention but whether the name or general character of that
crime is to be disclosed. Congress, however, has made it plain that
distinctions among generic felonies do not count for this purpose;
the fact of the qualifying conviction is alone what matters under
the statute. "A defendant falls within the category simply by
virtue of past conviction for any [qualifying] crime ranging from
possession of short lobsters,
see 16 U. s. C. § 3372, to the
most aggravated murder."
Tavares, 21 F. 3d, at 4. The most
the jury needs to know is that the conviction admitted by the
defend-
191
ant falls within the class of crimes that Congress thought
should bar a convict from possessing a gun, and this point may be
made readily in a defendant's admission and underscored in the
court's jury instructions. Finally, the most obvious reason that
the general presumption that the prosecution may choose its
evidence is so remote from application here is that proof of the
defendant's status goes to an element entirely outside the natural
sequence of what the defendant is charged with thinking and doing
to commit the current offense. Proving status without telling
exactly why that status was imposed leaves no gap in the story of a
defendant's subsequent criminality, and its demonstration by
stipulation or admission neither displaces a chapter from a
continuous sequence of conventional evidence nor comes across as an
officious substitution, to confuse or offend or provoke
reproach.
Given these peculiarities of the element of felony-convict
status and of admissions and the like when used to prove it, there
is no cognizable difference between the evidentiary significance of
an admission and of the legitimately probative component of the
official record the prosecution would prefer to place in evidence.
For purposes of the Rule 403 weighing of the probative against the
prejudicial, the functions of the competing evidence are
distinguishable only by the risk inherent in the one and wholly
absent from the other. In this case, as in any other in which the
prior conviction is for an offense likely to support conviction on
some improper ground, the only reasonable conclusion was that the
risk of unfair prejudice did substantially outweigh the discounted
probative value of the record of conviction, and it was an abuse of
discretion to admit the record when an admission was available.lO
What we have said shows why this will be
10 There may be yet other means of proof besides a formal
admission on the record that, with a proper objection, will
obligate a district court to exclude evidence of the name of the
offense. A redacted record of conviction is the one most frequently
mentioned. Any alternative will, of
192
the general rule when proof of convict status is at issue, just
as the prosecutor's choice will generally survive a Rule 403
analysis when a defendant seeks to force the substitution of an
admission for evidence creating a coherent narrative of his
thoughts and actions in perpetrating the offense for which he is
being tried.
The judgment is reversed, and the case is remanded to the Ninth
Circuit for further proceedings consistent with this opinion.
11
It is so ordered.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA,
and JUSTICE THOMAS join, dissenting.
The Court today announces a rule that misapplies Federal Rule of
Evidence 403 and upsets, without explanation, longstanding
precedent regarding criminal prosecutions. I do not agree that the
Government's introduction of evidence that reveals the name and
basic nature of a defendant's prior felony conviction in a
prosecution brought under 18 U. S. C. § 922(g)(1) "unfairly"
prejudices the defendant within the meaning of Rule 403. Nor do I
agree with the Court's newly minted rule that a defendant charged
with violating
course, require some jury instruction to explain it (just as it
will require some discretion when the indictment is read). A
redacted judgment in this case, for example, would presumably have
revealed to the jury that Old Chief was previously convicted in
federal court and sentenced to more than a year's imprisonment, but
it would not have shown whether his previous conviction was for one
of the business offenses that do not count, under § 921(a)(20).
Hence, an instruction, with the defendant's consent, would be
necessary to make clear that the redacted judgment was enough to
satisfy the status element remaining in the case. The Government
might, indeed, propose such a redacted judgment for the trial court
to weigh against a defendant's offer to admit, as indeed the
Government might do even if the defendant's admission had been
received into evidence.
11 In remanding, we imply no opinion on the possibility of
harmless error, an issue not passed upon below.
193
§ 922(g)(1) can force the Government to accept his concession to
the prior conviction element of that offense, thereby precluding
the Government from offering evidence on this point. I therefore
dissent.
I
Rule 403 provides that a district court may exclude relevant
evidence if, among other things, "its probative value is
substantially outweighed by the danger of unfair prejudice."
Certainly, Rule 403 does not permit the court to exclude the
Government's evidence simply because it may hurt the defendant. As
a threshold matter, evidence is excludable only if it is "unfairly"
prejudicial, in that it has "an undue tendency to suggest decision
on an improper basis." Advisory Committee's Note on Fed. Rule Evid.
403, 28 U. S. C. App., p. 860; see,
e. g., United States v.
Munoz, 36 F.3d
1229, 1233 (CA1 1994) ("The damage done to the defense is not a
basis for exclusion; the question under Rule 403 is 'one of
"unfair" prejudice-not of prejudice alone''') (citations omitted),
cert. denied
sub nom. Martinez v.
United States, 513
U. S. 1179
(1995); Dollar v.
Long Mfg., N. c.,
Inc., 561 F.2d
613, 618 (CA5 1977) (" '[U]nfair prejudice' as used in Rule 403
is not to be equated with testimony simply adverse to the opposing
party. Virtually all evidence is prejudicial or it isn't material.
The prejudice must be 'unfair' "), cert. denied, 435 U. S. 996
(1978). The evidence tendered by the Government in this case-the
order reflecting petitioner's prior conviction and sentence for
assault resulting in serious bodily injury, in violation of 18 U.
S. C. § 1153 and 18 U. S. C. § 113(f) (1988 ed.)-directly proved a
necessary element of the § 922(g)(1) offense, that is, that
petitioner had committed a crime covered by § 921(a)(20). Perhaps
petitioner's case was damaged when the jury discovered that he
previously had committed a felony and heard the name of his crime.
But I cannot agree with the Court that it was
unfairly
prejudicial for the Government to establish an essential
element
194
of its case against petitioner with direct proof of his prior
conviction.
The structure of § 922(g)(1) itself shows that Congress
envisioned jurors' learning the name and basic nature of the
defendant's prior offense. Congress enacted § 922(g)(1) to prohibit
the possession of a firearm by any person convicted of "a crime
punishable by imprisonment for a term exceeding one year." Section
922(g)(1) does not merely prohibit the possession of firearms by
"felons," nor does it apply to all prior felony convictions.
Rather, the statute excludes from § 922(g)(1)'s coverage certain
business crimes and state misdemeanors punishable by imprisonment
of two years or less. § 921(a)(20). Within the meaning of §
922(g)(1), then, "a crime" is not an abstract or metaphysical
concept. Rather, the Government must prove that the defendant
committed a
particular crime. In short, under § 922(g)(1), a
defendant's prior felony conviction connotes not only that he is a
prior felon, but also that he has engaged in specific past criminal
conduct.
Even more fundamentally, in our system of justice, a person is
not simply convicted of "a crime" or "a felony." Rather, he is
found guilty of a specified offense, almost always because he
violated a specific statutory prohibition. For example, in the
words of the order that the Government offered to prove
petitioner's prior conviction in this case, petitioner "did
knowingly and unlawfully assault Rory Dean Fenner, said assault
resulting in serious bodily injury, in violation of Title 18 U. S.
C. §§ 1153 and 113(f)." App. 18. That a variety of crimes would
have satisfied the prior conviction element of the § 922(g)(1)
offense does not detract from the fact that petitioner committed a
specific offense. The name and basic nature of petitioner's crime
are inseparable from the fact of his earlier conviction and were
therefore admissible to prove petitioner's guilt.
The principle is illustrated by the evidence that was admitted
at petitioner's trial to prove the other element of the
195
§ 922(g)(1) offense-possession of a "firearm." The Government
submitted evidence showing that petitioner possessed a 9-mm.
semiautomatic pistol. Although petitioner's possession of any
number of weapons would have satisfied the requirements of §
922(g)(1), obviously the Government was entitled to prove with
specific evidence that petitioner possessed the weapon he did. In
the same vein, consider a murder case. Surely the Government can
submit proof establishing the victim's identity, even though,
strictly speaking, the jury has no "need" to know the victim's
name, and even though the victim might be a particularly well loved
public figure. The same logic should govern proof of the prior
conviction element of the § 922(g)(1) offense. That is, the
Government ought to be able to prove, with specific evidence, that
petitioner committed a crime that came within § 922(g)(1)'s
coverage.
The Court never explains precisely why it constitutes "unfair"
prejudice for the Government to directly prove an essential element
of the § 922(g)(1) offense with evidence that reveals the name or
basic nature of the defendant's prior conviction. It simply notes
that such evidence may lead a jury to conclude that the defendant
has a propensity to commit crime, thereby raising the odds that the
jury would find that he committed the crime with which he is
currently charged. With a nod to the part of Rule 404(b) that says
"[e]vidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith," the Court writes:
"There is, accordingly, no question that propensity would be an
'improper basis' for conviction and that evidence of a prior
conviction is subject to analysis under Rule 403 for relative
probative value and for prejudicial risk of misuse as propensity
evidence." Ante, at 182.
A few pages later, it leaps to the conclusion that there can be
"no question that evidence of the name or nature of the
196
prior offense generally carries a risk of unfair prejudice to
the defendant."
Ante, at 185.
Yes, to be sure, Rule 404(b) provides that "[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith." But Rule
404(b) does not end there. It expressly contemplates the admission
of evidence of prior crimes for other purposes, "such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." The list is plainly
not exhaustive, and where, as here, a prior conviction is an
element of the charged offense, neither Rule 404(b) nor Rule 403
can bar its admission. The reason is simple: In a prosecution
brought under § 922(g)(1), the Government does not submit evidence
of a past crime to prove the defendant's bad character or to "show
action in conformity therewith." It tenders the evidence as direct
proof of a necessary element of the offense with which it has
charged the defendant. To say, as the Court does, that it
"unfairly" prejudices the defendant for the Government to establish
its § 922(g)(1) case with evidence showing that, in fact, the
defendant did commit a prior offense misreads the Rules of Evidence
and defies common sense.
Any incremental harm resulting from proving the name or basic
nature of the prior felony can be properly mitigated by limiting
jury instructions. Federal Rule of Evidence 105 provides that when
evidence is admissible for one purpose, but not another, "the
court, upon request, shall restrict the evidence to its proper
scope and instruct the jury accordingly." Indeed, on petitioner's
own motion in this case, the District Court instructed the jury
that it was not to "'consider a prior conviction as evidence of
guilt of the crime for which the defendant is now on trial.'" Brief
for United States 32. The jury is presumed to have followed this
cautionary instruction, see
Shannon v.
United States,
512 U. S. 573,
585 (1994), and the instruction offset whatever prejudice
197
might have arisen from the introduction of petitioner's prior
conviction.
II
The Court also holds that, if a defendant charged with violating
§ 922(g)(1) concedes his prior felony conviction, a district court
abuses its discretion if it admits evidence of the defendant's
prior crime that raises the risk of a verdict "tainted by improper
considerations." See
ante, at 174. Left unexplained is what,
exactly, it was about the order introduced by the Government at
trial that might cause a jury to decide the case improperly. The
order offered into evidence (which the Court nowhere in its opinion
sets out) stated, in relevant part:
"And the defendant having been convicted on his plea of guilty
of the offense charged in Count II of the indictment in the
above-entitled cause, to-wit: That on or about the 18th day of
December 1988, at Browning, in the State and District of Montana,
and on and within the exterior boundaries of the Blackfeet Indian
Reservation, being Indian country, JOHNNY LYNN OLD CHIEF, an Indian
person, did knowingly and unlawfully assault Rory Dean Fenner, said
assault resulting in serious bodily injury, in violation of Title
18 U. S. C. §§ 1153 and 113(f)." App. 18.
The order went on to say that petitioner was sentenced for a
term of 60 months' imprisonment, to be followed by two years of
supervised release.
Why, precisely, does the Court think that this item of evidence
raises the risk of a verdict "tainted by improper considerations"?
Is it because the jury might learn that petitioner assaulted
someone and caused serious bodily injury? If this is what the Court
means, would evidence that petitioner had committed some other
felony be admissible, and if so, what sort of crime might that be?
Or does the Court object to the order because it gave a few
specifics about the
198
assault, such as the date, the location, and the victim's name?
Or perhaps the Court finds that introducing the order risks a
verdict "tainted by improper considerations" simply because the §
922(g)(1) charge was joined with counts charging petitioner with
using a firearm in relation to a crime of violence, in violation of
18 U. S. C. § 924(c), and with committing an assault with a
dangerous weapon, in violation of 18 U. S. C. § 1153 and 18 U. S.
C. § 113(c) (1988 ed.)? Under the Court's nebulous standard for
admission of prior felony evidence in a § 922(g)(1) prosecution,
these are open questions.
More troubling still is the Court's retreat from the fundamental
principle that in a criminal prosecution the Government may prove
its case as it sees fit. The Court reasons that, in general, a
defendant may not stipulate away an element of a charged offense
because, in the usual case, "the prosecution with its burden of
persuasion needs evidentiary depth to tell a continuous story."
Ante, at 190. The rule has, however, "virtually no
application when the point at issue is a defendant's legal status,
dependent on some judgment rendered wholly independently of the
concrete events of later criminal behavior charged against him."
Ibid. Thus, concludes the Court, there is no real difference
between the "evidentiary significance" of a defendant's concession
and that of the Government's proof of the prior felony with the
order of conviction.
Ante, at 191. Since the Government's
method of proof was more prejudicial than petitioner's admission,
it follows that the District Court should not have admitted the
order reflecting his conviction when petitioner had conceded that
element of the offense.
Ibid.
On its own terms, the argument does not hold together.
A jury is as likely to be puzzled by the "missing chapter"
resulting from a defendant's stipulation to his prior felony
conviction as it would be by the defendant's conceding any other
element of the crime. The jury may wonder why it has not been told
the name of the crime, or it may question why the defendant's
firearm possession was illegal, given the
199
tradition of lawful gun ownership in this country, see
Staples v.
United States, 511 U. S. 600, 610-612
(1994). "'Doubt as to the criminality of [the defendant's] conduct
may influence the jury when it considers the possession element.'"
United States v.
Barker, 1 F.3d
957, 960 (1993) (quoting
United States v.
Collamore, 868 F.2d
24, 28 (CA1 1989)), modified,
20 F.3d
365 (CA9 1994).
Second, the Court misapprehends why "it has never been seriously
suggested that [a defendant] can ... compel the Government to try
the case by stipulation."
Singer v.
United States,
380 U. S. 24, 35
(1965). It may well be that the prosecution needs "evidentiary
depth to tell a continuous story" in order to prove its case in a
way a jury will accept.
Ante, at 190. But that is by no
means the only or the most important reason that a defendant may
not oblige the Government to accept his concession to an element of
the charged offense. The Constitution requires a criminal
conviction to rest upon a jury determination that the defendant is
guilty of every element of the crime of which he is charged beyond
a reasonable doubt.
United States v.
Gaudin, 515 U. S. 506, 510 (1995)
(citing
Sullivan v.
Louisiana, 508 U. S. 275, 277
(1993)); see also
Court of Ulster Cty. v.
Allen,
442 U. S. 140,
156 (1979) ("[I]n criminal cases, the ultimate test of any device's
constitutional validity in a given case remains constant: the
device must not undermine the factfinder's responsibility at trial,
based on evidence adduced by the State, to find the ultimate facts
beyond a reasonable doubt"). "A simple plea of not guilty, Fed.
Rule Crim. Proc. 11, puts the prosecution to its proof as to all
elements of the crime charged .... "
Mathews v.
United
States, 485 U. S.
58, 64-65 (1988). Further, a defendant's tactical decision not
to contest an essential element of the crime does not remove the
prosecution's burden to prove that element.
Estelle v.
McGuire, 502 U.
S. 62, 69 (1991). At trial, a defendant may thus choose to
contest the Government's proof on every element; or he may concede
some elements and contest others;
200
or he may do nothing at all. Whatever his choice, the Government
still carries the burden of proof beyond a reasonable doubt on
each element.
It follows from these principles that a defendant's stipulation
to an element of an offense does not remove that element from the
jury's consideration. The usual instruction regarding stipulations
in a criminal case reflects as much: "When the attorneys on both
sides stipulate or agree as to the existence of a fact, you may
accept the stipulation as evidence and regard that fact as proved.
You are not required to do so, however, since you are the sole
judge of the facts." 1 E. Devitt, C. Blackmar, M. Wolff, & K.
O'Malley, Federal Jury Practice and Instructions § 12.03, p. 333
(4th ed. 1992). Obviously, we are not dealing with a stipulation
here. A stipulation is an agreement, and no agreement was reached
between petitioner and the Government in this case. Does the Court
think a different rule applies when the defendant attempts to
stipulate, over the Government's objection, to an element of the
charged offense? If so, that runs counter to the Constitution: The
Government must prove every element of the offense charged beyond a
reasonable doubt,
In re Winship,
397 U. S. 358, 361
(1970), and the defendant's strategic decision to "agree" that the
Government need not prove an element cannot relieve the Government
of its burden, see
Estelle, supra, at 69-70. Because the
Government bears the burden of proof on every element of a charged
offense, it must be accorded substantial leeway to submit evidence
of its choosing to prove its case.
Also overlooked by the Court is the fact that, in "conceding"
that he has a prior felony conviction, a defendant may be trying to
take the issue from the jury altogether by effectively entering a
partial plea of guilty, something we have never before endorsed.
Federal Rule of Criminal Procedure 23(a) does not permit a
defendant to waive a jury trial unless the Government consents, and
we have upheld the provision as constitutional.
Singer,
supra, at 37. "The Constitution
201
recognizes an adversary system as the proper method of
determining guilt, and the Government, as a litigant, has a
legitimate interest in seeing that cases in which it believes a
conviction is warranted are tried before the tribunal which the
Constitution regards as most likely to produce a fair result." 380
U. S., at 36. A defendant who concedes the prior conviction element
of the § 922(g)(1) offense may be effectively trying to waive his
right to a jury trial on that element. Unless the Government agrees
to this waiver, it runs afoul of Rule 23(a) and
Singer.
III
The Court manufactures a new rule that, in a § 922(g)(1) case, a
defendant can force the Government to accept his admission to the
prior felony conviction element of the offense, thereby precluding
the Government from offering evidence to directly prove a necessary
element of its case. I cannot agree that it "unfairly" prejudices a
defendant for the Government to prove his prior conviction with
evidence that reveals the name or basic nature of his past crime.
Like it or not, Congress chose to make a defendant's prior criminal
conviction one of the two elements of the § 922(g)(1) offense.
Moreover, crimes have names; a defendant is not convicted of some
indeterminate, unspecified "crime." Nor do I think that Federal
Rule of Evidence 403 can be read to obviate the well accepted
principle, grounded in both the Constitution and in our precedent,
that the Government may not be forced to accept a defendant's
concession to an element of a charged offense as proof of that
element. I respectfully dissent.
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