Can Previous Convictions Be Used Against You in Court?

If you are charged with a crime and have a prior criminal conviction, the outcome of your current case can be affected in some ways by your previous conviction. 

Sentencing

Discretionary Effects

If you have a criminal record, it will affect the kinds of offers you receive from the prosecution, and it will likely affect the judge’s determination of what your sentence should be if you go to trial and are convicted. 

Typically, prosecutors will give breaks, in some form or another, to people who have never been in trouble with the law before. Generally, a person who is charged with a low-level crime, like a misdemeanor theft, can get their criminal lawyer to work out a deal where the charges are reduced to a non-criminal offense (like disorderly conduct), and the person will serve no jail time but may have to do a day or two of community service.

When a person is charged with a very serious offense (like murder), the prosecution will certainly not reduce the charge to a non-criminal offense with community service. Instead, the prosecution may substantially reduce the number of years in prison it seeks due to the person having never been previously convicted of a violent felony.

Generally, for repeat offenders, the offer the prosecution gives will get worse with each successive case. For instance, with a misdemeanor drug possession charge, the prosecution may give increasingly stiff penalties that might be as follows:

• 1^st Arrest: Dismissal if defendant attends a 1-day drug class
• 2^nd Arrest: A non-criminal violation if defendant attends a 2-day drug class
• 3^rd Arrest: A misdemeanor conviction that will be reduced to a non-criminal violation if the defendant attends a long-term drug program
• 4^th Arrest: A misdemeanor conviction and probation
• 5^th Arrest: A misdemeanor conviction and jail time

Just like plea deals that get worse with each successive conviction, a judge’s sentence when a person is convicted after trial will typically be worse if the person has previously been convicted of a crime. So, if you are convicted of assault at trial, the sentence the judge gives you will be worse if you have previously been convicted of assaulting someone.

Legally Required Effects

Beyond the fact that prosecutors and judges, through their own discretion, typically give worse plea offers and sentences, respectively, to people who have previously been convicted of crimes, in some situations, the New York Penal Law mandates enhanced sentences to those with prior convictions.

For instance, if you are charged with a felony and have been convicted of a felony within the last 10 years, then by law, you are considered to be a “predicate felon.” If you are a predicate felon, then your sentencing ranges are worse, and the judge doesn’t even have the discretion to give you a sentence as if you didn’t have a prior felony conviction.

Also, some offenses require worse penalties when you have prior convictions for that kind of offense. For example, by statute, Driving While Intoxicated penalties are worse with each successive Driving While Intoxicated conviction.

Evidence

Prosecution’s Case

The prosecution can’t introduce your prior criminal conviction into evidence if the purpose of that evidence is to show that you have a propensity to commit crimes. In other words, the prosecution can’t introduce a previous conviction into evidence to argue to the jury that “the defendant has committed crimes before, so he must be guilty this time too!”

However, there are certain situations where the prosecution can admit evidence of prior convictions. However, the evidence can’t be admitted just to show that the person has been convicted of a crime before. Instead, the evidence can only be admitted if it is relevant to a specific issue in the case, such as motive, lack of mistake, or modus operandi.

For example, if you were previously convicted of grand larceny for stealing someone’s car, and you later stalk the victim who testified against you in the grand larceny case, your conviction of the grand larceny could be admissible in court because your conviction for grand larceny—and the witness’ testimony against you in that case—explains your motive to stalk the person in the new case.

An example of “lack of mistake” is as follows: Say you are charged with grand larceny because you tried to cash a forged check that you received from someone else. Your defense may be that you had no idea that it was a forged check. However, if you have previously been convicted of grand larceny for trying to cash forged checks from the same issuer, then the prosecution could get your prior conviction into evidence because it would show that you had reason to know that the checks in the new case were fraudulent.

An example of modus operandi would be if you are charged with robbery, you have been convicted of robbery multiple times, and each time you commit a robbery, you do something unique, like wearing a Mickey Mouse mask. In that situation, the government could introduce your prior robbery convictions by showing that you are likely the perpetrator in the new case because you always wear a Mickey Mouse mask when you commit robbery.

If You Testify

Although the prosecution generally cannot use your criminal record against you at trial, if you choose to testify, the prosecution may be able to introduce your criminal record to impeach you at trial. In other words, the prosecution can use your criminal record to argue to the jury that you shouldn’t be believed because you have previously put yourself above the law by committing crimes.

Typically, the prosecution cannot use a prior conviction that is over 10 years old. Also, the courts often limit impeachment by prior conviction to offenses related to dishonesty. After all, the purpose of allowing a criminal record into evidence to impeach a defendant who testifies is to show that the defendant is dishonest. Accordingly, convictions relating to dishonesty, like theft, are more likely to be admitted into evidence than Driving While Intoxicated, which has nothing to do with honesty.

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