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39.1 Stipulation As Defense Strategy

    39.1.1 Does Offer To Stipulate To Prior Conviction Remove It From The Case?
    39.1.2 Stipulation Of Fact Or Element By Defendant
    39.1.3 Right To Stipulate When Prosecution Alleges More Priors Than Required
    39.1.4 Felony Indecent Exposure: Priors -- Stipulation/Bifurcation
    39.1.5 Petty Theft: Stipulation To Prior
    39.1.6 Escape: Stipulation By Defendant As To Offense Upon Which Custody Was Predicated Precludes Submitting Question To The Jury
    39.1.7 Driving Under The Influence (DUI): Stipulation To Prior Offense
    39.1.8 Right To Stipulate To Status As Convicted Felon Re: Carrying Concealed Firearm In Vehicle
    39.1.9 Stipulation As To Felony: Possession Of Firearm By Exfelon
    39.1.10 Criminal Offense Based On Violation Of Court Order
    39.1.11 Lewd Act With Child: Repeat Prior Offender Priors-- Stipulation Or Bifurcation
    39.1.12 Old Chief Stipulation: Three-Step Analysis – Rule 403 Balancing Should Consider The "Full Evidentiary Context" And Include Evidentiary Alternatives

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PRACTICE NOTE: In Old Chief v. U.S. (1997) 519 US 172 [117 SCt 644;136 LEd2d 574] the Court first rejected the defendant's argument that his offer to stipulate rendered the evidence of his prior conviction irrelevant and reaffirmed "the accepted rule that the prosecution is entitled to prove its case free from any defendant's option to stipulate the evidence away." (519 US at 189.) The Court then went on to carve out a narrow exception to that rule, applicable only to "the element of felony-convict status." (Id. at 191). Concluding that there was "no cognizable difference between" a judgment and conviction order proving felony convict status and an admission or stipulation to that effect, and that a description of the prior offense might unduly prejudice the defendant, the Court held that the FRE 403 balance of probative value versus unfair prejudice titled in favor of excluding the government's proof. (See also People v. Swint (MI 1997) 572 NW2d 666, 677-78 [error to refuse stipulation that defendant had been convicted of felony without reference to its name or nature; relying on Old Chief]; [NF] Carter v. State CERT GTD (MD 10/10/2002, Pet. Docket No. 367) 802 A2d 460, 464-75 [offer to stipulate requires the trial court to apply a balancing test to decide whether the prosecution should be allowed to show only the fact of the prior conviction, and not the nature of the prior crime]; People v. Cooper (NY 1991) 78 NY2d 476, 481 [if defendant admits prior conviction court must not make any reference to it in definition of offense or in listing the elements of the offense]; Hubbard v. Commonwealth (KY 1982) 633 SW2d 67 [ex-felon in possession of gun count should have been severed from other counts due to prejudicial effect of introducing the prior conviction]; State v. James (TN 2002) 81 SW3d 751 [defendant may block the admission of evidence of the name and nature of a prior conviction by offering to stipulate to a prior conviction element of an offense]; but see [NF] Carter v. State CERT GTD (MD 10/10/2002, Pet. Docket No. 367) 802 A2d 460.)

    See NCJIC  3.2.15 [Impact Of Stipulation On Duty To Instruct].

    See also NCJIC 39.1.12 [Old Chief Stipulation: Three-Step Analysis – Rule 403 Balancing Should Consider The "Full Evidentiary Context" And Include Evidentiary Alternatives].

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    See NCJIC 39.1.1 [Does Offer To Stipulate To Prior Conviction Remove It From The Case?].

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PRACTICE NOTE: Relying on Old Chief v. U.S. (1997) 519 US 172 [117 SCt 644; 136 LEd2d 574], Tamez v. State (TX 2000) 11 SW3d 198 held that a defendant charged with third-offense driving while intoxicated should be allowed to stipulate to having two prior convictions and thus prevent the prosecution from introducing evidence of all his prior DWI convictions during the state’s case-in-chief. Furthermore, when the indictment is read to the jury, only two prior DWI convictions should be mentioned even if the indictment alleges more. (Tamez,11 SW3d at 203.)

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    See NCJIC Chapter 39 [Defense Strategies As To Charged Prior Offense: Bifurcation and Stipulation].

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PRACTICE NOTE: "The fact that the defendant was previously convicted of similar offenses is not evidence that he is guilty of petty larceny and you should not consider it as to [whether he is guilty or not guilty] on this charge...." (Woodson v. Commonwealth (VA 1993) 431 SE2d 82, 83.)

    See also NCJIC 39.2.4 [Repeat Offender (Recidivist) Priors: Bifurcation Or Stipulation].

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PRACTICE NOTE: See State v. Davidson (MN 1984) 351 NW2d 8, 10-12; see also MINNESOTA JURY INSTRUCTION GUIDES - CRIMINAL, CRIMJIG 24.02, comment [Escape From Custody- Elements] (West, 4th ed. 2000/01).

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    See NCJIC 39.1.1 [Does Offer To Stipulate To Prior Conviction Remove It From The Case?].

    See also NCJIC 39.2.4 [Repeat Offender (Recidivist) Priors: Bifurcation Or Stipulation].

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    See NCJIC 107.2.4 [Refusal Of Stipulation To Ex-Felon/Misdemeanant Status As Due Process Violation].

    See also NCJIC 107.2.5 [Ex-Felon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated].

   See also NCJIC 107.2.6 [Ex-Felon In Possession Of Firearm: Stipulation Removing Prior Felony From Jury -- Jury Should Not Be Concerned With Why Possession Is Illegal].

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    See NCJIC 107.2.4 [Refusal Of Stipulation To Ex-Felon/Misdemeanant Status As Due Process Violation].

    See also NCJIC 107.2.5 [Ex-Felon In Possession Of Firearm: No Speculation About Nature Of Prior Felony Where Stipulated].

    See also NCJIC 107.2.6 [Ex-Felon In Possession Of Firearm: Stipulation Removing Prior Felony From Jury -- Jury Should Not Be Concerned With Why Possession Is Illegal].

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PRACTICE NOTE:  If the charged offense is predicated on the violation of a court order, the same consideration that allow the accused to stipulate to a predicate prior conviction should permit stipulation as to the predicate court order violation.  (See e.g., NCJIC 77.16.3.7 [Stalking In Violation Of Court Order: Defense Theory That Evidence Of Court Order Violation Should Be Excluded If Defendant Stipulates To Violation].

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    See NCJIC 101.4.2.5 [Lewd Act With Child: Repeat Offender Priors -- Stipulation Or Bifurcation].

    See also NCJIC 39.2.4 [Repeat Offender (Recidivist) Priors: Bifurcation Or Stipulation].

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    39.1.12    Old Chief Stipulation: Three-Step Analysis – Rule 403 Balancing Should Consider The "Full Evidentiary Context" And Include Evidentiary Alternatives 

PRACTICE NOTE: The Old Chief majority endorsed a "full evidentiary context" approach in conducting Rule 403 balancing. As presented in Old Chief, this is a three step process. First, the trial judge must ask if a particular item of evidence raises a danger of unfair prejudice. (Old Chief v. U.S. (1997) 519 US 172 [117 SCt 644, 651;136 LEd2d 574].) If it does, the judge must next evaluate "the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well." (Ibid.) Lastly, "[i]f 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." (Ibid.)

    The Court emphasized that this last "discount" calculation must be done within the context of "the offering party's need for evidentiary richness and narrative integrity in presenting a case." (Old Chief, 117 SCt at 651.)

    See also NCJIC 39.1.1 [Does Offer To Stipulate To Prior Conviction Remove It From The Case?].