top of page
Presented by (2).png

Prior convictions as an element of the crime

This summer, the SC Supreme Court handed down an interesting case on Rule 403, 611(a), and prior convictions as elements of the crime. The defendant was charged with criminal sexual conduct with a minor in the first degree. This charge is based on the underlying allegations of intercourse plus a prior conviction of CSC (a prior conviction of CSC is an element of CSC 1st). The issue that arises with these types of indictments at trial is that the state needs to introduce evidence of the prior conviction in order to prove the charge. However, as the court points out, this can have a negative effect on the jury and the prior conviction might inadvertently be used as 'propensity' evidence. The question is: how does a trial court balance the two?

The reason this case is so interesting is because of the analysis the court used to get this result: the rules of evidence.


The court first holds that the evidence of a prior conviction as an element still falls under 403. This means that the trial court still gets "to determine whether and when that evidence should be admitted."

The court acknowledges the conundrum of prior conviction evidence when it's an element of the crime: the prior conviction has "insurmountable probative value" but the conviction is extremely prejudicial (particularly in CSC cases):


Because of the prior conviction is both very probative and very prejudicial, the court focuses on when the conviction can be introduced. This means using Rule 611(a):

Bifurcation is necessary in this case

The supreme court held that the trial court, using 611(a), needed to bifurcate the trial - that means the first trial would consist of the state proving the underlying facts of the incident. Then, if convicted of those facts, the state would have to prove at a second phase/trial the prior conviction.

Other cases (burglary 1st)

How should a trial court treat prior convictions as an element in other cases such as burglary first? Again, the court distinguished CSC cases because of the "inherently prejudicial stigma a prior sex-related offense undoubtedly carries."


The Dissent

The dissent disagreed because "there is no provision of law that requires the court to do so." (referring to bifurcating a non-capital case).

Specifically, the court disagrees with the interpretation of 403 and 611(a):

And 403:


How much (if any) can the defense stipulate?

This issue was addressed in Old Chief v. US. The Supreme Court explained that the prosecution still has leeway when it comes to the presentation of its case:

Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997)


bottom of page