But My Client Didn't Testify

Many clients, in criminal cases, choose to exercise their right to remain silent at trial. For them, one of the benefits of not testifying is the jury will not learn of their prior convictions. However, defense counsel may inadvertently open the door to the admission of these convictions even without calling the client to the stand. Your strategy and preparation are essential to avoiding “opening the door” to your client’s record at trial. This strategy begins long before trial and requires the resolve to carry the argument through closing arguments.

Florida Statute §90.806(1) provides: “When a hearsay statement has been admitted into evidence, credibility of the declarant may be attacked, and if attacked, may be supported by any evidence that would be permissible for those purposes if the declarant had testified as a witness.” This permits the introduction of a defendant’s prior convictions when the defendant elicits his or her own exculpatory hearsay statement through another witness at trial.

The first step in addressing this issue is determining whether the defendant has made an exculpatory hearsay statement. Note, the threshold inquiry is not whether the statements are exculpatory, but whether they are hearsay. If the statement is not hearsay, the credibility of the declarant is not an issue. If credibility is not at issue, the defendant’s credibility cannot be attacked, and the defendant cannot be impeached with his or her prior record. In Gudmestad v. State, 209 So. 3d 602 (Fla. 2d DCA 2016) the defendant’s statements elicited by the defense were not offered to prove the truth of the matter asserted and therefore were not hearsay. The Second DCA found the lower court’s admission of prior convictions to be harmful error when used to attack the defendant’s credibility.

When a State witness testifies to hearsay statements of the defendant this does not open the door to admission of the defendant’s prior convictions. Rather, defense counsel may cross examine the State witness about other relevant statements made during that conversation without opening the door. In Foster v. State, 182 So. 3d 3 (Fla. 2d DCA 2015) the Second DCA held once the State presented a portion of Foster’s statement, Foster was entitled to have the jury hear the remainder of his statement without fear of placing his credibility at issue. The lower court erred in finding defense counsel’s cross examination opened the door to impeachment by prior convictions. The Second DCA reversed the conviction because the case turned on the credibility of the defendant. The court also found the jury’s knowledge of the defendant’s prior convictions could have contributed to the verdict. As a result of the case turning on Foster’s credibility, it could not be said beyond a reasonable doubt allowing the jury to learn of his prior criminal record did not contribute to the verdict. The conviction was therefore reversed.

The State also cannot engineer a cross examination of a defense witness to later lead to admission of the defendant’s convictions. In Huggins v. State, 889 So. 2d 743 (Fla. 2004), the State elicited an exculpatory hearsay statement of Mr. Huggins on cross examination of a defense witness. At the close of the defense case, the State requested the court take judicial notice of the defendant’s nine (9) prior felony convictions. The State also requested the court instruct the jury they could consider the convictions in assessing Huggins’ credibility. The trial court reasoned that the defense initially put on testimony from the witness attributing a hearsay statement to Huggins. The State objected to the statement coming in on hearsay grounds, the court sustained the objection, and defense counsel then indirectly elicited the same information by asking if the witness had knowledge of the hearsay statement. On cross examination the State asked, “So your answer to counsel’s question was based on what Mr. Huggins told you?” The court found the State’s question was designed to reveal the implication placed before the jury by the defense. Huggins had therefore opened the door to his own impeachment. The defense argued the defendant’s nine (9) felony convictions should have been excluded because the probative value was outweighed by the unfair prejudice. The court overruled that objection and informed the jury of the fact the defendant had nine prior felony convictions. However, in an effort to limit the danger of unfair prejudice the court did not inform the jury of the nature of the crimes and gave a limiting instruction regarding the jury’s use of the information. The Florida Supreme Court affirmed because the statement was elicited by the defense, not by the State.

Additionally, courts cannot admit unredacted certified copies of the defendant’s prior convictions when a defendant elects not to testify. In Mathis v. State, 135 So. 2d 484 (Fla. 2d DCA 2014), the appellate court found error in the admission of certified copies of the prior convictions. First, the defense had elicited testimony from a law enforcement officer that Mr. Mathis, in speaking with the officer, made no admissions. While the defense had opened the door to impeachment the court was found to have abused its discretion by admitting certified copies of the judgments and sentences. Had the defendant taken the stand the State would have been limited to asking of the existence and number of priors. Only if the defendant answered untruthfully would any of the details of the priors be admissible. Second, the court did not wait to find out if Mr. Mathis was going to testify. Finally, the court’s failure to give a limiting instruction also prejudiced the defense.

Defense counsel may learn of exculpatory hearsay statements when questioning witnesses at deposition. It may require filing a Bradyor Giglio motion to obtain a court order requiring the State to provide said statements. There are a number of questions the defense should answer to prepare to address this issue: who were the statements made to; who else was present; will the statements be elicited on cross examination of a state witness, and will a defense witness be testifying to the statements? If a defense witness will be testifying to the statements, the witness’ name and address must be provided to the State in discovery. Defense counsel must know about all of the client’s prior convictions. The State, under the rules of discovery, has the obligation to give notice of prior convictions, and the State must provide certified copies of the judgments and sentences if they intend to use the convictions at trial.

Be prepared to object to the judgments and sentences being admitted and sent back to the jury. The initial argument to be made to the court is the statements are not hearsay. Should the court overrule that objection, object on the grounds that the prejudicial value outweighs the probative value. Ask that the Court defer ruling on the State’s request to admit your client’s prior convictions until the defendant decides whether to take the stand or not. Until your client makes that pivotal decision the court should not admit the prior convictions. The Defendant may choose to testify and render the issue moot. Be prepared to provide the Court with a proposed instruction informing the jury of the prior convictions and prepare a limiting instruction on the purpose of this evidence for the Court to read. In addition, you may want to ask for a special jury instruction to be included in the instructions for deliberations. Do not forget to address this issue in closing argument because prior convictions must not be considered proof of guilt.

In conclusion, it is important for the defense to make a strategic decision about opening the door to a client’s prior convictions coming into evidence. First, determine whether your client made any exculpatory hearsay statements. Second, know whether your client has any prior convictions. If the State may argue for the admission of prior convictions know what objections should be made. Be familiar with the proper procedure for the court to admit the convictions. Without proper preparation and zealous advocacy your client’s record could make or break a victory at trial.