Judge granted motion in limine based on Old Chief line of cases in a sex offender registration jury trial. His ruling prevents the prosecutor from mentioning the sex offense prior in opening, voir dire, testimony or closing. In short we were prohibited from even mentioning the defendant's status as sex offender even though we believe it's an element of the offense. Judge only allowed us to say that the defendant must register under Chapter 62, CCP, but not the reason why even though we alleged the prior in the indictment. Not allowed to read that part of the indictment to the jury or read the stipulation on the prior. Anyone have any prior experience with this and how to deal with it?

What???? A pro-sex offender judge?

Is the stipulation that there is a prior sex offense generally, or is it that the defendant was required to register as a sex offender at the time of the failure to register? Because how else are you going to prove that the defendant not only had a registerable offense, but that he was bound by law to register at the time stated in the indictment, unless you can show what the offense was and that the registration requirement applied then?

An alternative view of this situation is that a jury may assume the worst about his sex offense if they are not allowed to hear what it was, and the defense admits that he was required to register. What's his defense to the rest of it? Is he going to the jury for punishment?

I think there was an article in The Prosecutor circa 2005 or 2006. A Dallas prosecutor wrote it after having lost a trial where the judge made similar rulings. I thought the statute had been tweaked since then to make it clear that some of that stuff could be said. Can you argue that Old Chief doesn't apply because the prior conviction is in fact an element of the offense, since that is what triggers the duty to register?

John, that's EXACTLY what I argued, and what I believe but the judge granted the motion anyway. I also gave him a copy of Hollen v. State, a case which originated in our court of appeals. CCA reversed Fort Worth in ruling that in a felony DWI Old Chief does not prohibit reading the priors in the indictment, reading the stipulation, talking about prior in voir dire and argument. This judge normally isn't pro-defense but every now and then will do something like this especially if it shortens the trial. It did in this case, not guilty. I had similar thoughts about the jury speculating that the prior was worse than reality but in this case it was indecency with a child and the defendant is a 40 year old male who was thrown out of a McDonalds recently for viewing pornography on his laptop while watching the children play on the playground. Failure to register was based on a two month stay in California and the question was whether he changed his residence. I guess the jury decided he didn't. Anyhow, we did not get to punishment but he was going to the judge if convicted. Duh.

Gretchen, I agree with your analysis. We were actually prohibited from proving an element of our case even by stipulation. So the ruling, in effect, made our proof insufficient as a matter of law in my opinion. I was hoping to cross appeal on these issues if the defendant was convicted.

I'm sorry that your hands were tied and you didn't get to have an appeal on this issue (would this have been something that there could have been a mandamus on - no adequate remedy on appeal?). I assume you didn't get to talk to the jury to see whether not having that information affected them.

That has been suggested as an avenue of appeal but smarter appellate attorneys than me believe that it might not meet the mandamus test because the precedent in this area applies to DWI cases and there is no case directly on point as to whether the Old Chief doctrine applies in sex offender registration cases. So it might not be considered settled law. I was also thinking about offering a proposed stipulation containing the prior conviction in response to the next motion in limine and see if the judge will rule pretrial that it is not admissible and attempt to take that up on direct appeal as a suppression matter. But the narrow interpretation of state's right to appeal may be a problem. We may just be stuck with it here until some judge somewhere else denies the motion and it goes up on a defendant's appeal.

In Old Chief it was only necessary to show that the defendant had been convicted of a felony; the nature of the felony was not relevant. In your case you had to prove an adjudication (even if deferred) for a particular type of offense (i.e., one named in 62.001 (5)). Thus, the stipulation had to include the relevant fact to force the State to agree to its use. It is an clear abuse of discretion to interpret Rule 403 any other way.

Martin is dead on right. It is always amazing to me how some judges just latch on to a rule and don't want to examine its purpose.

This is also why I found the CCA's follow-up to Big Chief to be an abuse of their authority. I don't think an appellate court can dictate how a trial lawyer achieves the goal set out in Big Chief.

Room should be left for the trial prosecutor to simply edit information in a judgment, leaving available the critical information needed to prove the two prior DWI convictions or single sex offender conviction. By what authority can an appellate dictate a single method (stipulation) for achieving that goal? It was wrong then and shows to be even more wrong (creating new mischief) when trial judges mindlessly try to extend it from the DWI law to a sex offender prosecution.

As sometimes happens, your only recourse is to educate your judge. Of course, should that prove unsuccessful, you may need to educate the public about your judge.

Agreed as to both JB and Martin's comments. I disagreed with Old Chief from the beginning. Seems to me that it is a fundamental part of our discretion to determine what evidence we offer to prove the elements. Does the Defendant get to prevent the jury from hearing his egregious confession details by stipulating that he confessed?