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The Devastating Impact of Prior Crimes Evidence – And Other Myths of the Criminal Justice Process

40 Pages Posted: 6 Sep 2010 Last revised: 25 Oct 2010

Date Written: September 2, 2010

Abstract

There is abundant empirical evidence that prior criminal convictions weigh heavily in jurors’ decision about acquittal and conviction. That same evidence suggests that jurors learning that defendant has been convicted of prior crimes makes very little difference to conviction rates. This seeming paradox is examined in considerable detail. Understanding how and why it arises suggests that the tendency in American law to suppress information about priors (except under special circumstances) is a self-defeating strategy that not only lacks a convincing epistemic foundation but may also be responsible for the inadvertent conviction of innocent defendants. Arguably, it is often not the admission of priors that is unfairly prejudicial so much as their exclusion.

Keywords: prior convictions, exclusionary rules, silence, Rule 403, Rule 404, jury instructions, conviction rates, NCSC, defendant testimony

Suggested Citation

Allen, Ronald J. and Laudan, Larry, The Devastating Impact of Prior Crimes Evidence – And Other Myths of the Criminal Justice Process (September 2, 2010). U of Texas Law, Public Law Research Paper No. 183; Northwestern Public Law Research Paper No. 10-74. Available at SSRN: https://ssrn.com/abstract=1670999 or http://dx.doi.org/10.2139/ssrn.1670999

Ronald Jay Allen

Northwestern University Law School ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8372 (Phone)
312-503-2035 (Fax)

Larry Laudan (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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