THE DEVASTATING IMPACT OF PRIOR CRIMES EVIDENCE AND OTHER MYTHS OF THE CRIMINAL JUSTICE PROCESS

This Article argues that there is very good reason to believe that the misshapen stone should indeed be extracted and that the result would be a considerably less grotesque structure. There is abundant empirical evidence that prior criminal convictions weigh heavily in jurors' decisions about acquittal and conviction. That same empirical work suggests that jurors' learning directly through the evidence 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 prior crimes (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 prior crimes evidence that is unfairly prejudicial so much as its exclusion.