Does 'opening the door' trump Rule 609 and Rule 403

When a defendant presents favorable testimony about his character, the prosecution can likely rebut that testimony with contrary information. This is called "opening the door."

United States v. Moore, 27 F.3d 969, 974 (4th Cir. 1994)


The rule against using character evidence has several exceptions. And under Rule 404(a), a defendant is allowed to present a pertinent trait (favorable) but if he does that, then the state can rebut it with their own evidence. Rule 405 explains what types of character evidence may be used.

United States v. Jaensch, 552 F. App'x 206, 212 (4th Cir. 2013)

But what happens if a defendant opens the door, but it is not necessarily for favorable testimony? That appears to be what happened in this Fourth Circuit case. The defendant testified and on direct examination his counsel questioned him about his "prior convictions." These prior convictions appear to include some 609 qualifying ones and some non-609 qualifying ones. However, the prosecution was allowed to question the defendant about all of the convictions because defense counsel "opened the door" on direct.


The issue on appeal: "He points out that the Government can cite no authority holding 'that a criminal defendant’s testimony about some prior convictions entitles the prosecution to cross-examine the defendant about all prior convictions.' "


United States v. Johnson, No. 18-4457, 2019 WL 6884510 (4th Cir. Dec. 18, 2019)


The court ultimately denied the defendant's appeal on this issue primarily based on the lack of objection in the trial court and the appellate standard/burden they had to overcome.


But the question remains: after direct, when the defendant testified about his "prior convictions" did this open the door to all of his prior convictions? Did the defendant open the door using 404(a)(1)?




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Daniel@everydayevidence.og

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