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Earlier this year, in Old Chief v. United States,1 the Supreme Court finally resolved a circuit split on a nagging evidentiary issue: When a defendant charged with being a convicted felon in possession of a firearm2 offers to satisfy one of the statute's elements by stipulating to the existence of a prior felony conviction, may the government decline the stipulation and prove the existence and the nature of that prior felony?3

The question of evidence law resolved in Old Chief is not particularly earth-shattering. Indeed, while the Court divided five to four on the issue, neither Justice Souter's opinion for the Court nor Justice O'Connor's dissent ventured beyond a relatively narrow doctrinal analysis.4 Evidence as to the nature of a defendant's prior felony conviction is indeed relevant, the Court reasoned, but the risk of unfair prejudice it presents far outweighs the probative value, once the defendant's proffered concession is considered as an alternative.5 Therefore, where a § 922(g)(1) defendant is willing to admit having a prior felony conviction, the government may not prove what that conviction was for.6 Save for its categorical approach to what generally is a fact-sensitive matter, the decision is of a piece with so many judicial applications of Federal Rule of Evidence 4037 (or its state analogues), which, for fear of jury misuse, bar compelling proof on issues not seriously in dispute.

Within the frame of the single case, Old Chief is simply an effort to remove a factor that Congress found of little moment when it cast § 922(g)(1)'s broad prohibition. Perhaps it is a futile effort, though. The rule announced does not prevent juries from considering the nature of a defendant's felony. It merely deprives them of accurate information about it.8 The juror who gives any thought to the nature of a defendant's underlying felony can only speculate-speculation that will likely be guided by stereotypes of race, gender and class, and that will simply be driven underground by instructions that she not consider the defendant's prior record. Whether defendants will have the option of correcting misimpressions in this regard is a question troublingly left open by the Court's decision.

The questions raised by Old Chief, however, go far beyond the confines of evidence doctrine, and go to the relationship between evidentiary rules, prosecutorial discretion, and prosecutorial accountability. If citizens have any voice in the fine-grained decisions that prosecutors make about resource allocations, they have it not because of appointive or electoral politics but because prosecutors make charging-and plea bargaining-decisions in the shadow of jury verdicts, or at least projected verdicts. Yet such decisions are also made in the shadow of exclusionary evidentiary rules that often deprive jurors of the very information that they, as citizens, would find most relevant to prosecutorial priorities. Old Chief effectively creates just such a rule, based, as most evidentiary rules are, on considerations of fairness in the individual case. Are those considerations outweighed by the rule's systemic costs? If the Court is successful in bleaching out the difference in § 922(g)(1) trials between the convicted murderer and the defendant with a less troubling record, will that make prosecutors neutral between such cases when deciding whether to bring charges? If one assumes, as many have, that prosecutors simply seek to maximize convictions, the answer is "yes." Indeed, if this assumption is true and if jurors' readiness to convict is driven by speculation about a defendant's record, then Old Chief threatens a world in which even race-neutral prosecutors select cases based on the worst sort of stereotypes. Should the rule be applied symmetrically, preventing defendants from correcting juror misimpressions, it will be even more pernicious. In a world where prosecutors primarily sought to maximize convictions, the systemic costs of this, and many other, exclusionary rules of evidence would therefore be considerable.

But do prosecutors really work this way? And if they are not trying to maximize convictions (or sentence-years), what are they trying to do? This Essay does not come close to answering this critical, but surprisingly under-studied question. By inquiring into the interaction between evidentiary rules, jury verdicts, and prosecutorial choices, however, it seeks to offer a richer account than has hitherto been provided of the significance of evidentiary rules in a criminal justice system in which trials almost never happen.9 It also challenges us to move forward beyond simplistic assumptions about prosecutorial motivation- assumptions that are not merely unhelpful but deter us from understanding how our system really works (or doesn't).


Copyright is owned by the Virginia Law Review Association and the article is used by permission of the Virginia Law Review Association.