¶1 dissenting.
¶2 I respectfully dissent.
¶3 The question in this case is, most basically, what is the effect of evidence of a prior conviction? The answer is given in State v. Allen (1987), 29 Ohio St.3d 53, 55, 29 OBR 436, 438, 506 N.E.2d 199, 201:
¶4 “The existence of a prior offense is such an inflammatory act that ordinarily it should not be revealed to the jury unless specifically permitted under statute or rule. The undeniable effect of such information is to incite the jury to convict based on past misconduct rather than restrict their attention to the offense at hand.” . (Emphasis added.)
¶5 No one doubts that evidence of prior convictions has a bad effect on the jury’s perception of the defendant’s guilt or innocence. Because of this prejudicial effect, we have the rule that where the prior offense affects only the sentence, it is to be withheld from the jury and considered by the court. This is a good, sensible rule.
¶6 But then there is the question: What is the effect of a prior offense on the jury in a case where it raises the degree of the crime? Of course, the answer is that this kind of evidence has the same bad effect on the jury regardless of the purpose for which it is admitted.
¶7 Where the prior offense is an element raising the degree of the offense, it must be proved like any other element. A defendant can insist that the state prove each and every element, including the prior-offense element, and its admission would be required.
¶8 A defendant is more likely to prefer to keep such evidence from the jury because of its unquestioned prejudicial effect and have that issue resolved by the court. Should a defendant be given that option? I believe this is the better position both for society and the defendant.
¶9 Requiring that the evidence of a prior offense be presented to the jury is an anomalous result. In a lesser case where the prior offense only affects the sentence, he is given the right to keep this prejudicial matter from the jury. In the more serious case where the offense is raised to a higher degree, he is prohibited from exercising such a right.
¶10 What is the purpose of such a rule? What just result is it designed to achieve? I can see none. This situation brings to mind Justice Oliver Wendell Holmes’ famous dictum: “The life of the law has not been logic, but experience.” Our experience tells us that this kind of evidence is devastating to the average juror’s ability to limit his consideration to only those facts presented in the case before him. This kind of evidence is always bad for a defendant’s case.
¶11*242 It is also bad for our society because it makes our criminal convictions unsafe and uncertain. When a crime has been committed, an investigation often begins with the police looking for someone with a record for this kind of crime, a very reasonable practice. When a defendant is arrested and indicted, the prosecutor, the grand jury, and the arraignment judge are all aware of the prior record. The trial judge will probably also be aware of the defendant’s record.
¶12 If an innocent person has been charged in error, the system is geared to the danger of compounding the error. Virtually everyone involved in the pretrial process will be affected to some extent and reasonably infer that a person with a record is more likely to have committed the crime.
¶13 But the issue in the trial is not whether the defendant is likely to have committed this crime, but whether he should be convicted on the facts in this case. By insisting on putting this evidence before the jury, we irretrievably bias the one group of persons in the judicial process who are charged by law with the task of assessing guilt or innocence on the facts alone. Why should we bias them? Why do we invite the opportunity for the jury to be misled?
¶14 This situation here is somewhat analogous to the problem Evid.R. 403(A) is designed to resolve. Evid.R. 403(A) is rooted in our experience that sometimes relevant evidence is outweighed by its prejudicial effect. The prior conviction, of course, is always relevant since it is an element of the crime charged, but we can avoid the prejudicial effect simply by following the practice of allowing evidence of the prior conviction to be presented separately to the trial judge out of the hearing of the jury.
¶15 I am sure the state’s prosecutors would not like this procedure, but their objections argue more for the rule than against it. In a very strong case where the prosecution’s evidence is compelling, keeping the defendant’s record from the jury would have little or no effect, and the prosecution may not care one way or another. In a close case, however, where the state’s evidence is not that strong, the prosecution would dearly love to get the prior record admitted because it is very likely to sway the jury — that is, it is most prejudicial in a close case.
¶16 The courts are not to be concerned with trial tactics, but are concerned with the integrity of the trial as a truth-finding mechanism. The courts ought not to inject into trials material which they know will be prejudicial when there is a simple, adequate method for avoiding potential prejudice.
¶17 I would hold that where a defendant’s prior offense enhances either the punishment or the degree of the offense he may elect to have that issue decided by the trial judge outside of the hearing of the jury.
¶18 Thus, I dissent.