BBM I have searched to see if there was a motion to exclude prior criminal acts, but I can't find anything. Maybe some posters who have been more diligent all these years can weigh in on this one
I'm in a different state so perhaps it's not the same. Also I don't recall his criminal history but I know it's not murder.
Here the state has to file a motion to INCLUDE prior criminal acts. Because we have to have a hearing on whether they are more probative than prejudicial. If it is going to go towards proving guilt. Like similar pattern, signature, whatever.
The exception is if they only intend to introduce a prior criminal history to go towards credibility if he testifies. In that case the state here has to file a notice informing us they intend to bring in the following convictions to impeach him if he testifies.
The prosecution normally is not allowed to introduce past criminal acts of a defendant durning the guilt phase of a criminal trial.
UNLESS they use the prior criminal acts to damage the defendants credibility in the event that he takes the stand. That is often allowed as it is with all witnesses and contributes to the decision of whether the defendant testifies. With the defendant the rules are tighter. It has to be a conviction that goes towards honesty (theft by deceit, fraud, etc)
so around the 1:12 mark is when they go to break... around 1:13:30ish mark, the prosecution says that there has been no "motion to exclude from the defense" and the defense has had lots of time to do that! WTH... why in the world would the defense not have filed that?
Generally the prosecution has to give notice they intend to bring it in, then the defense files a motion to exclude. I don't think this is the last we've heard of this.
I don't recall them mentioning his criminal history. I DO recall one of the attorney's mentioning that Merritt was concerned about going to talk to LE at first because he had a warrant, but decided to go anyway and they told him they wouldn't arrest him.
Okay... if this is the case I think I'd probably argue this. Having a warrant doesn't equal a criminal history. Charges get dropped, pleas happen, it could have been a warrant for a speeding ticket he failed to pay. I almost ended up with one of those and I work FOR a lawyer! (I have NO criminal history whatsoever.)
If the defense ONLY mentioned he had a warrant, I think the defense has a point that they did not mention a criminal history. I think they might elect to argue this if they feel it's too damaging for it to be brought up continually.
Not that I haven't seen defense attorneys "open the door" and totally screw over their clients, it happens. That just doesn't sound like what happened here. It sounds like it was a well thought out comment meant to put the defendant in a positive light, that should not have opened the door. The judge may have gotten this call wrong.
Also, you don't object to something unless you want the jury to pay closer attention to it. This is very true.
