Dickson_Davis_Deborah_Sample_Writing_Memorandum_Rule_404b_Pardons_060716

DEBORAH DICKSON DAVIS
910 AZALEA HILL DRIVE (912) 257-6253
GREENVILLE, SC 29607 DLDICKSON@SAVANNAHLAWSCHOOL.ORG
WRITING SAMPLE
The attached writing sample is a memorandum I drafted regarding an in-depth analysis of
the effect of pardons under Rule 404(b) of the new Georgia Rules of Evidence. I wrote this
memorandum under the supervision of an Assistant Public Defender. The facts have been
changed to protect the confidentiality of all parties involved. I received no additional help
writing this memorandum from any law professors.
I researched the state of the law in Georgia pertaining the treatment of pardons in
subsequent prosecutions regarding unrelated offenses. Under Georgia law, the similar
transactions rule has caused the admissibility of propensity character evidence for other purposes
to become the rule rather than the exception pursuant to Rule 404(b). Recently, Georgia revised
its Rules of Evidence to emulate the Federal Rules of Evidence.
After extensive research, the issue in this case turns upon determining the logical and
legal relevance of previous pardons under Rules 404(b) and 403 respectively. This issue has been
omitted from this sample. In summary, the law in Georgia regarding extrinsic character evidence
has suffered a tortuous application conflating Rules 404(b), 403, and 609—none of which may
be viewed solely in isolation to unravel the application of the law both in theory and in practice.
The State’s purpose for introducing the character evidence matters to uncover whether such
evidence is truly presented for a permissible purpose or to undermine the anti-propensity rule
prohibiting character evidence admitted for a different crime: to show conformity therewith on
another occasion.
Beyond the issue of legal relevance, pardons also require another step of analysis. This
memorandum twenty-three (23) page excerpt focuses on the effect of pardons in subsequent
prosecutions for unrelated crimes.

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INTEROFFICE MEMORANDUM
DATE: Friday, September 25, 2015
TO: Amy Ihrig, Esq.
FROM: Deborah L. Dickson
RE: The effect of pardons on prior convictions as an evidentiary matter under Rule 404(b)
QUESTION PRESENTED
Whether the State of Georgia (“State”) may introduce a defendant’s pardoned offense for
a prior conviction as evidence of other crimes, wrongs, or acts under Title 24, Chapter 4, Section
404(b) (“Rule 404(b)”).1
BRIEF ANSWER
Yes. Depending on two-step analysis as to whether the pardoned offense is relevant,2
a
pardoned offense for a prior conviction may foreclose the State’s use of that prior conviction as
an evidentiary matter under Rule 404(b) of the Georgia Rules of Evidence.3
The Eleventh Circuit
analyzes evidence under a paradigm of intrinsic or extrinsic evidence to determine the
admissibility of prior convictions.4
The State may not use a pardoned, prior conviction
substantively—as intrinsic evidence—to prove an element of a crime in a subsequent
prosecution of a crime if: (1) the pardoned, prior conviction is one crime is a system of mutually
1
O.C.G.A. § 24-4-404(b) (West 2015).
2
See U.S. v. Edouard, 485 F.3d 1324, 1343-46 (11th Cir. 2007); see also U.S. v. McMichael, 358 F. Supp.
2d 644, 647-48 (E.D. Mich. 2005) (allowing pardoned, prior convictions into evidence through impeachment); U.S.
v. Fowler, 198 F.3d 808, 809 (11th Cir. 1999) (discussing a state pardon for a prior conviction, which cannot be a
predicate crime to a subsequent offense); Lockhart v. Nelson, 488 U.S. 33, 34-42, 109 S. Ct. 285, 287-91 (1988); Ex
parte Garland, 71 U.S. 333, 341-43, 18 L. Ed. 366 (1866) (discussing a presidential pardon).
3
Compare O.C.G.A. § 24-4-404(a) (West 2015) (anti-propensity rule), with O.C.G.A. § 42-9-54 (West
2015) (pardons).
4
Edouard, 485 F.3d at 1343-46 (discussing intrinsic and extrinsic evidence); Bradshaw v. State, 296 Ga.
650, 655, 769 S.E.2d 892, 896 (2015) (discussing extrinsic evidence); U.S. v. Perez, 443 F.3d 772, 780 (11th Cir.
2006) (discussing extrinsic evidence); but see State v. Jones, 297 Ga. 156, 157-64, 773 S.E.2d 170, 171-76 (2015)
(bent-of-mind exception for DUI offenses); Harris v. State, 775 S.E.2d 165, 167-68 (Ga. Ct. App. 2015) (applying a
different test for admitting extrinsic evidence than federal counterparts).

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dependent crimes;5
or (2) the pardoned, prior conviction is a predicate crime to a subsequent
offense.6
In contrast, the State may use a pardoned, prior conviction for an independent crime,
wrong, or act—as extrinsic evidence—under Rule 404(b) that delineates the major, although not
exhaustive, exceptions for admitting extrinsic, character evidence (most commonly under the
“similar transactions rule” in Georgia law).7
Under Rule 404(b), whether the pardoned, prior conviction is either intrinsic or extrinsic
evidence is not dispositive unless the analysis is consistent with determining the relevance of the
pardoned, prior conviction to a material element of the charged offense.8
Generally, under Rule
609 governing the use of extrinsic, character evidence during impeachment, “the pardoned
conviction may also still be used as evidence of bad character.”9
Under Rule 404(b), the analysis
turns upon whether the State’s use of the Defendant’s pardoned, prior conviction is relevant to
the charged offense—not whether the State’s use of the pardoned, prior conviction is improper,
character evidence under Rule 609.10
5
Cox v. State, 165 Ga. 145, 139 S.E. 861, 861 (1927). However, mutually, dependent crimes originates
from the former res gestae doctrine. Thus, any analysis under mutually dependent crimes may disregard the
relevance of proffering extrinsic evidence—or prior convictions—to the charged offense and perpetuate the
defendant’s propensity to commit crime instead. See U.S. v. Green, 617 F.3d 233, 246-49 (3d Cir. 2010); State v.
Fetelee, 117 Haw. 53, 81, 175 P.3d 709, 737 (2008); U.S. v. Bowie, 232 F.3d 923, 927-44 (D.C. Cir. 2000).
6
See, e.g., O.C.G.A. § 17-10-7 (West 2015); U.S. v. Walters, 351 F.3d 159, 166 (5th Cir. 2003); Nelson,
488 U.S. at 33; Edouard, 485 F.3d at 1343-46.
7
Compare FED. R. EVID. 404(b) (exceptions for other crimes, wrongs, and acts), with O.C.G.A. § 24-4-
404(b) (West 2015) (exceptions for other crimes, wrongs, and acts). Under the Federal Rules of Evidence, Rule
404(b) only gives effects to other crimes, wrongs, or acts that are not direct proof of the charged offense, which
transforms the evidence as proof of the crime charged and not some other crime. FED. R. EVID. 404(b); Walters, 351
F.3d at 166. The reference to other crimes, wrongs, or acts as similar transactions is a misnomer because the
transactions do not have to be similar or identical. Young v. State, 281 Ga. 750, 751-53, 642 S.E.2d 806, 807-08
(2007) (criticizing misapplication of the similar transaction rule); U.S. v. Beechum, 582 F.2d 898, 911-13 (5th Cir.
1978).
8
See Bowie, 232 F.3d at 927-44. However, a pardoned, prior conviction may be relevant as background
information or circumstantial evidence if such evidence aids the jury to determine the Defendant’s guilt or
innocence. O.C.G.A. §§ 24-4-401 to -402 (West 2015); FED. R. EVID. Rules 401-402; Notes of 1972 Advisory
Committee to Rule 404.
9
McMichael, 358 F. Supp. at 647-48.
10
Compare O.C.G.A. § 24-4-404(b) (West 2015) (extrinsic, character evidence exceptions), with O.C.G.A.
§ 24-4-609(c)(1) (West 2015) (extrinsic, character evidence prohibitions); Bowie, 232 F.3d at 929. Because the
nature of the inquiry is whether the independent crime, wrong, or act is relevant. Id. An isolated analysis of a

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With respect to federal law, the analysis for the State’s proffer to use the Defendant’s
pardoned, prior conviction as character evidence—whether as intrinsic or extrinsic evidence—
depends upon the interrelationship of Rules 403, 404, and 609 under the Federal Rules of
Evidence.11
Thus, the answer depends upon the nature of the inquiry regarding the charged crime
and which element is mostly at issue, and the method of proof when proffering such evidence.12
FACTS
The Defendant was pardoned for a prior conviction of child molestation over ten years
ago. Specifically, ten years has elapsed since the time of the Defendant’s conviction and the
Defendant’s release from incarceration.13
The Defendant received a pardon because the
Defendant was later found rehabilitated.14
The State of Georgia has charged the Defendant with a
new felony, a charge that is separate and distinct from any charge for sexual offenses. Here, the
Defendant’s current charge does not trigger Georgia’s recidivism statute for habitual sex
pardoned, prior conviction under Rule 404(b) does not accurately represent the interrelationship of Rule 404(b) with
Rules 401, 402, 403, and 404: “Rule 404(b) thus is not so much a character rule as a special aspect of relevance,
constituting but one of many exceptions to the general rule that ‘all relevant evidence is admissible.’ FED.R.EVID.
402. The rule does not prohibit character evidence generally, only that which lacks any purpose but proving
character.” Id. at 930.
11
Character evidence arises in two ways: (1) as “an element of the crime . . . or defense;” or (2) as
circumstantial evidence to suggest “an inference that the person acted on the occasion in question consistently with
his character.” Notes of 1972 Advisory Committee to Rule 404; see FED. R. EVID. 404. The Defendant must object
contemporaneously to preserve the evidentiary objection upon appeal. Edouard, 485 F.3d at 1343-46. If the
Defendant preserved the evidentiary objection, then the appellate standard of review is for the abuse of discretion.
See Bradshaw, 296 Ga. at 656; U.S. v. Baker, 432 F.3d 1189, 1204-06 (11th Cir. 2005). If not, then the appellate
standard of review is for plain error. See U.S. v. Hesser, No. 13-11712, 2015 WL 5210540, at *10 (11th Cir. Sept. 8,
2015); Edouard, 485 F.3d at 1343-46.
12
See Bowie, 232 F.3d at 927-44; Beechum, 582 F.2d at 911-13.
13
For impeachment under the Georgia Rules of Evidence, Section 609(c) of Title 24, Chapter 6, generally
prohibits the use of pardoned, prior convictions that have occurred ten years from the date of incarceration or release
from incarceration, whichever occurs first, for the use of impeaching the Defendant (or other witnesses). O.C.G.A. §
24-6-609(b) (West 2015); Williams v. State, 328 Ga. App. 876, 878-81, 763 S.E.2d 261, 264-66 (2014). As a
catchall provision, the State may introduce evidence of a pardoned, prior conviction from ten or more years ago “in
the interests of justice, [provided] that the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.” O.C.G.A. § 24-6-609(b) (West 2015).
14
For impeachment purposes, if the Defendant receives a pardon on the basis of receiving a certificate of
rehabilitation, then the State may not use the prior conviction provided that the State does not convict the Defendant
of a subsequent felony. O.C.G.A. § 24-6-609(c)(1) (West 2015). Generally, the State may only introduce evidence
of a Defendant’s prior convictions to attack the Defendant’s credibility (“Rule 609”). O.C.G.A. § 24-6-609(a)(1)
(West 2015).

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offenders, nor for another sexual offense. For the purpose of this assignment, the Defendant’s
current charge is not a prerequisite predicate crime to the commission of a felony or for any
subsequent sexual offenses.
DISCUSSION
After the sentence has been commuted, a pardon for a prior conviction revives the
Defendant’s civil and political rights.15
However, state law only restores the Defendant to the
Defendant’s previous position, but for the conviction—to the fullest extent as permitted by that
state’s law.16
More specifically, the issue depends on whether the pardoned, prior conviction is
relevant evidence in the State’s subsequent prosecution of the Defendant according to the federal
courts interpretation of the Federal Rules of Evidence.17
The issue pivots on the State’s use of the
pardoned, prior conviction as either: (1) a substantive matter, such as a predicate crime (i.e., a
mutually dependent crime); or, (2) as character evidence from the Defendant’s commission of an
independent crime.18
Typically, the courts analyze character evidence under the paradigm of
intrinsic or extrinsic evidence respectively regarding Rule 404(b).19
Moreover, the issue of relevancy is a broader, more permissible standard than the
intrinsic-extrinsic paradigm for analyzing whether character evidence is admissible under Rule
15
Hulgan v. Thornton, 205 Ga. 753, 757, 55 S.E.2d 115, 117-18 (1949).
16
Fowler, 198 F.3d at 808-09; U.S. v. Swanson, 947 F.2d 914, 918 (11th Cir. 1991); Hulgan, 205 Ga. at
757; Bjerkan v. U.S., 529 F.2d 125, 126-29 (7th Cir. 1975); but see Dixon v. McMullen, 527 F. Supp. 711, 717-19
(N.D. Tex. 1981) (establishing that state law is dispositive to the extent that a pardon revives civil and political
rights); Bjerkan, 529 F.2d at 129 (Fairchild, C.J., dissenting).
17
The issue is not whether the pardoned, prior conviction is improper character evidence under Rule
404(b), but whether such evidence is relevant under either paradigm of intrinsic or extrinsic evidence. Green, 617
F.3d at 244-45; Bowie, 232 F.3d at 927-44. For the purposes of this assignment, the issue of whether the State
introduced character evidence for the purpose of introducing substantive evidence (i.e., Rules 401-404) or to attack
the Defendant’s credibility (i.e., Rule 609) also warrants a separate analysis under the circumstances, which is
beyond the scope of this assignment. This assignment will only reference to cursory issues related to this distinction
as needed to clarify the analysis of pardoned, prior convictions under Rule 404(b) versus Rule 609(c)(1). See
O.C.G.A. § 24-4-404 (West 2015); O.C.G.A. § 24-6-609 (West 2015).
18
See Bowie, 232 F.3d at 927-44 (analyzing the admissibility of extrinsic evidence as a rule-based
applications of Rules 401, 402, 403, and 404).
19
Green, 617 F.3d at 244-45.

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404(b).20
Whether a pardon for a prior conviction has a preclusive effect on the evidentiary use
of that prior conviction depends on the State’s purpose for introducing extrinsic, character
evidence regarding the pardoned, prior conviction. If the State introduces the pardoned, prior
conviction as substantive evidence to support the Defendant’s current charges, such as a
predicate crime, then the State’s use of the pardoned, prior conviction is foreclosed.21
This
outcome is fatal to the State’s case because the pardoned, prior conviction is irrelevant as a
substantive matter to show the likelihood that a material fact is true, or to support an element of
the crime.22
On the other hand, if the State introduces the pardoned, prior conviction merely as
extrinsic, character evidence, then the State is limited to introducing evidence of other crimes,
wrongs, or acts as an exception to the anti-propensity rule as codified and amended in Rule
404(b).23
The pardoned, prior conviction may be relevant if the State can show that the extrinsic,
character evidence proves some other purpose besides the Defendant’s propensity to commit
crimes.24
Arguably, the State’s use of the Defendant’s pardoned felony for child molestation in a
subsequent offense serves no other purpose than to elicit an inflammatory, prejudicial response
20
See Bowie, 232 F.3d at 927-44.
21
O.C.G.A. § 24-4-401 (West 2015); O.C.G.A. § 24-4-402 (West 2015); see Nelson, 488 U.S. at 34-42.
22
Nelson, 488 U.S. at 34-42.
23
O.C.G.A. § 24-4-404 (West 2015); Baker, 432 F.3d at 1205. The analysis of the State introducing a
pardoned, prior conviction for purposes of impeachment are beyond the scope of this assignment. However, the
State’s use of the Defendant’s prior convictions does bear weight to this analysis because many courts struggle to
distinguish between character evidence for substantive purposes and impeachment purposes. PAUL S. MILICH,
GEORGIA RULES OF EVIDENCE: 2012-2013 EDITION, § 14:4, at 433-34 & n. 13 (2012) (referring to Georgia courts
that still conflate balancing both the probative value and prejudicial effect of character evidence under Rule 404(b),
Rule 403, and Rule 609). Additionally, the State may introduce character evidence beyond the subject matter on
cross examination to impeach a witness regarding other crimes, wrongs, or acts under the Federal Rules of
Evidence. Compare FED. R. EVID. 609 (impeaching the witness’s credibility by way of other crimes, wrongs, or
acts), with O.C.G.A. § 24-6-609 (West 2015) (impeaching the witness’s credibility by way of other crimes, wrongs,
or acts).
24
O.C.G.A. § 24-4-404(b) (West 2015).

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from the jury.25
Because, the subsequent prosecution of the Defendant neither involves any
recurring sexual offenses nor recidivism. Thus, the pardoned, prior conviction is not relevant to
the charged offense(s).
I. [OMITTED ANALYSIS OF NEW GEORGIA RULES OF EVIDENCE]
II. The Effect of a Pardon on Prior Convictions
Addressing the effect of pardons to prior convictions under Rule 404(b) requires a two-
step analysis to determine “the nature and effect the pardon granted to the [Defendant].”26
This
analysis must address: (1) any federalism issues between a presidential pardon and whether the
state recognizes that presidential pardon;27
and (2) any reciprocity issues with a state pardon and
whether another state recognizes that state’s pardon.28
The type of pardon, whether a presidential
pardon29
or a state pardon,30
is dispositive as to whether federal law or state law governs the
effect of a pardon respectively.31
The dispositive federal or state law governs the effect of a
pardon on future, subsequent prosecutions by the State.32
A pardoned, prior conviction requires a multi-layered analysis that is a mixed question of
law and fact.33
The additional element of the Defendant receiving a pardon for the prior
25
Bogan v. State, 206 Ga. App. 696, 700, 426 S.E.2d 392, 396-97 (1992) (“A trial court is vested with
broad and sound discretion in the correction of improper or inflammatory argument; the trial court's election to give
the jury a curative instruction will not be disturbed on appeal absent an abuse of discretion, which will not arise if
the curative instruction given can serve to prevent any prejudicial impact.”); Smith v. State, 232 Ga. App. 290, 292,
501 S.E.2d 523, 526 (1998) (“[A]n express finding that the scales weigh in favor of admission is not required.”).
26
Ex parte Garland, 71 U.S. at 341-43.
27
Compare U.S. CONST. art. II, § 2, cl. 1 (presidential pardons), with GA. CONST. art. IV, § 2 (state
pardons); see, e.g., Carlesi v. People of the State of New York, 233 U.S. 51, 57, 34 S. Ct. 576, 577-78 (1914).
28
Compare U.S. CONST. amend. X (state sovereignty), with U.S. CONST. art. VI, § 2 (Supremacy Clause);
compare U.S. CONST. art. II, cl. 9 (Privileges and Immunities Clause), with GA. CONST. art. I, § 1, ¶ VII (privileges
and immunities); see U.S. v. Moore, 556 F.2d 479, 484 (10th Cir. 1977) (upholding California law that does not
recognize expungements of prior convictions from other states for the purposes of subsequent prosecution).
29
See U.S. CONST. art. II, § 2, cl. 1; see, e.g., Ex parte Garland, 71 U.S. at 341-43.
30
See, e.g., GA. CONST. art. IV, § 2 (state pardons); Carlesi, 233 U.S. at 59.
31
Dixon, 527 F. Supp. at 717-19 (“Originally, under English law, there were several kinds of pardons:
general, special or particular, conditional, absolute, and statutory.”); Carlesi, 233 U.S. at 56-59.
32
Hulgan, 205 Ga. at 757.
33
See Beechum, 582 F.2d at 911-18.

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conviction requires a preliminary layer of analysis before uncovering the analysis under Rule
404(b), if applicable. Primarily, most of the recent legal precedents dealing with pardons relate to
instances where the Defendant received a pardon for a prior conviction—after the Defendant
commutes the sentence. More specifically, legal precedents heavily emphasize the prior,
pardoned conviction serving as either: (1) a predicate crime to the charged offense (e.g., a felon's
possession of a gun); or (2) an aggravating factor for the defendant's sentencing (e.g., a habitual
offender with multiple felonies; aggravating circumstances for sentencing such as the death
penalty or deportation proceedings; recidivism statutes; eligibility for first offender status).
Other legal precedents that surround the pardons concern the Defendant’s civil and
political rights such as holding a political office or being able to work for the government. Little
case law on point addresses the use of a pardoned, prior conviction outside of this context that
does not relate to the Defendant’s impeachment under Rule 609(c)(1). Mostly, legal precedents
deal with prior convictions, without specifically mentioning whether those prior convictions
were pardoned or not (usually the cases did not involve pardoned offenses). And, the
admissibility of pardoned, prior convictions as extrinsic, character evidence is largely
discretionary at the behest of the trial judge under Rule 404(b).34
A. Pardons as Intrinsic Evidence
Pardons have a limited effect on subsequent prosecutions: “Even if a conviction is
pardoned, the pardoned conviction may be used to enhance the penalty for a subsequent
offense.”35
The State’s use of a pardoned, prior conviction in this context primarily relates to
aggravating conditions for sentencing purposes: A pardon does not prevent federal or state law
34
O.C.G.A. § 609 (West 2015); Perez, 443 F.3d at 780; see also Gordon, 383 F.2d at 941 (applying
judicial discretion to ambiguous concepts for character evidence and impeachment).
35

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from using a pardoned, prior conviction for aggravated sentencing purposes.36
The Defendant
bears the burden “to show that [the Defendant’s] criminal records are inaccurate, incomplete, or
misleading . . . before modification or expungement [of prior convictions] under OCGA § 35–3–
37(c).”37
1. The Green Test for Extrinsic, Character Evidence
Under the Green test for intrinsic evidence for pardoned, prior, convictions, the State may
only introduce a pardoned, prior conviction when the timing of the conviction is relevant to
triggering the commission of a crime or facilitating a crime.38
If the Defendant had re-offended
the same offense, for which the Defendant received a pardon, then the courts will typically allow
extrinsic, character evidence of previous, pardoned convictions in cases of recidivism or if the
prior conviction is a predicate crime to the charged offense. However, these cases typically relied
upon prior convictions that were not subject to a pardon.39
These legal precedents also serve to
buttress statutes prohibiting recidivism of various felonies.40
Pardoned, prior convictions admitted for the purpose of intrinsic evidence normally
involve case law surrounding ex-felons unlawful possession of firearms,41
recidivism statutes,42
36
37
Drake v. State, 170 Ga. App. 846, 846, 318 S.E.2d 721, 722 (1984).
38
See Green, 617 F.3d at 248-49 (3d Cir. 2010); Pitera, 795 F. Supp. at 575 (“Generally, when one focuses
on ‘prior’ or ‘previous’ convictions, the concern is not so much on what constitutes the conviction, i.e., a guilty plea
or a judgment, but on the timing of the conviction relative to the commission of the crime that it will aggravate.”).
39
See, e.g., Pardon v. State, 322 Ga. App. 393, 397-98, 745 S.E.2d 658, 662 (2013) (recidivism); Pitera,
795 F. Supp. at 573-74 (death penalty); Swanson, 947 F.2d at 918 (felons possessing a firearm); see also O.C.G.A. §
24-6-609(c)(1) (West 2015) (allowing pardoned, prior convictions for impeachment purposes for recidivism).
40
O.C.G.A. § 17-10-7 (West 2015).
41
Compare O.C.G.A. § 16-11-131 (West 2015) (governing pardons and subsequent possession of firearms
by ex-felons), with Prather, 247 Ga. at 790 (discussing prior convictions related to felon possessing a firearm), and
Swanson, 947 F.2d at 918 (discussing prior convictions related to a pardoned, ex-felon possessing a firearm).
42
Pardon, 322 Ga. App. at 397-98 (discussing prior convictions related to recidivism).

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aggravating factors for the death penalty,43
first offender statutes,44
and so forth. All these types
of cases involve a predicate crime to support the charges against the Defendant, whereby both
the predicate crime and the charged offenses are mutually dependent. The necessary analysis
requires “the Court [to] determine whether a penalty enhancement for a subsequent offense
based on the pardoned conviction constitutes an impermissible punishment for the previous
pardoned offense or separate punishment for the subsequent offense.”45
2. Sufficiency of the Evidence
In Lockhart v. Nelson, the State charged the Defendant as a habitual offender, and the
Defendant received an enhanced sentence consequently.46
The Defendant appealed stating that
“certain evidence was erroneously admitted against him, and further held that the Double
Jeopardy Clause forbade the State to retry him as a habitual offender because the remaining
evidence adduced at trial was legally insufficient to support a conviction.”47
As a predicate
crime, the State presented evidence of a prior conviction that had been pardoned unbeknownst
the Defendant and the State.48
The Supreme Court distinguished double jeopardy that attached to “a reversal based
solely on evidentiary insufficiency . . . [but not to] a reversal based on such ordinary ‘trial
errors’ as the ‘incorrect receipt or rejection of evidence.’”49
The Burks exception states that “a
reversal for evidentiary insufficiency is the functional equivalent of a trial court's granting a
43
Pitera, 795 F. Supp. at 573-74 (discussing prior convictions related to aggravating or mitigating factors
for the death penalty).
44
Groseclose v. Plummer, 106 F.2d 311, 314 (9th Cir. 1939) (discussing prior convictions related to
eligibility for first offender sentencing).
45
McMichael, 358 F. Supp. at 647-48; Pardon, 322 Ga. App. at 397-98.
46
488 U.S. 33, 34, 109 S. Ct. 285, 287 (1988).
47
Nelson, 488 U.S. at 34.
48
Id. at 39-42 (citing Burks v. U.S., 437 U.S. 1, 15-16, 98 S. Ct. 2141, 2149-50 (1978)).
49
Id.

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judgment of acquittal at the close of all the evidence.”50
Hence, a reversal based on insufficiency
of the evidence is “a determination that the government's case against the defendant was so
lacking that the trial court should have entered a judgment of acquittal, rather than submitting the
case to the jury.”51
In short, the State did not prove its case.52
In contrast, a reversal based on trial errors does not affect the guilt or innocence of the
Defendant. Rather trial errors simply refer to the court’s determination that the judicial process
rendered a defective conviction “‘in some fundamental respect.’”53
Because the Defendant had
other felony convictions to supplant the pardoned conviction, the Supreme Court allowed the
State to re-prosecute the Defendant with the additional evidence. However, this outcome presents
double jeopardy concerns for successive prosecution when the State fails to prove its case during
the first attempt after withholding the prerequisite evidence needed to secure a conviction.54
Thus, if the State never raises the pardoned, prior conviction separately, or in the
alternative, as extrinsic, character evidence, then no further analysis is required under Rule
404(b) of the Georgia Rules of Evidence.55
Here, the State’s use of the Defendant’s pardoned,
prior conviction does not serve a proper purpose. The pardoned, prior conviction is extrinsic,
character evidence that does not support a material element of the crime charged against the
Defendant nor aid the jury to determine the Defendant’s guilt or innocence in the subsequent,
charged offense.56
The prior conviction for child molestation does not support the subsequent
prosecution, nor does the subsequent prosecution involve recidivism or any sexual offenses.
50
Nelson, 488 U.S. at 34.
51
Id.
52
Id. at 39-42; Harris, 775 S.E.2d at 166-67 (determining whether the evidence was sufficient for a rational
trier of fact to convict the Defendant beyond a reasonable doubt).
53
Nelson, 488 U.S. at 34-42 (quoting Burks, 437 U.S. at 15-16).
54
Id. at 44-50 (Marshall, J., dissenting).
55
O.C.G.A. § 42-9-54 (West 2015); O.C.G.A. § 24-4-404(b) (West 2015).
56
O.C.G.A. § 24-4-401 (West 2015).

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B. Pardons as Extrinsic Evidence under Rule 404(b) and Rule 609
Regardless of whether evidence is logically relevant, all evidence must be legally
relevant and pass the balancing test of Section 403 under Title 24, Chapter 4 (“Rule 403”).57
If a
prior conviction does not bear any relation to another purpose beside the character propensity
inference, crimen falsi,58
or the Defendant’s veracity, under Rules 404(b) or 609, then the prior
conviction is not legally relevant because the prejudicial effect of such a propensity inference
outweighs the probative value of such extrinsic, character evidence.59
As an exception to the
anti-propensity rule, Rules 412, 413, 414, and 415, allow all prior convictions related to sexual
offenses are admissible in subsequent charges for any sexual offense(s) as a matter of public
policy.60
Notwithstanding certain exceptions, if the pardoned, prior conviction does not fall
within an exception to either the anti-propensity rule or any permissible “other purposes” as
codified and amended under Title 24, Chapter 4, Section 404(b), and the prior conviction is
prohibited under Title 24, Chapter 6, Section 609, then a pardon for the Defendant’s prior
conviction forecloses the use of that prior conviction as extrinsic, character evidence in a
subsequent prosecution of the Defendant.61
A pardon does not extinguish the Defendant’s admission of guilt following a
conviction.62
On the one hand, federal law tends to protect acquittals based on innocence, even
after post-conviction if the conviction is reversed on appeal.63
In contrast, states that issue
pardons post-conviction merely “abolish all restrictions upon the liberty of the pardoned one, and
57
O.C.G.A. § 24-4-403 (West 2015); see, e.g., Williams, 328 Ga. App. at 878-81.
58
FED. R. EVID. 609(a)(2); O.C.G.A. § 24-6-609(a)(2) (West 2015); Tapley, 95 Ga. App. at 175-76 (“Other
transactions showing fraud are admissible to show intent.”).
59
See O.C.G.A. § 24-4-404 (West 2015); O.C.G.A. § 24-6-609 (West 2015).
60
O.C.G.A. §§ 24-4-412 to 415 (West 2015); Lustgarden, 966 F.2d at 555.
61
O.C.G.A. § 24-4-404(b) (West 2015).
62
63
See, e.g., 8 U.S.C. § 2513 (West 2015); see also O.C.G.A. § 24-6-609(d) (West 2015).

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upon his civil rights that follow a felony conviction and sentence.”64
Additionally, “[a] pardon
does not entail the expungement of judicial records or otherwise negate the facts of the
underlying conviction.”65
For example, the State may introduce prior charges, even if: (1) the
charges were dismissed under nolle prosequi;66
(2) the charges were acquitted by a hung jury, or
mistrial;67
(3) the charges were never brought forth;68
or (4) the charges were pardoned, yet
introduced during impeachment.69
The State may not simply introduce extrinsic, character evidence of a prior conviction
without more (i.e., submitting a certified copy of prior convictions). The State must notify the
Defendant regarding the proffered extrinsic, character evidence before trial. If the Defendant
objects, the State must state the relevance for introducing extrinsic, character evidence under
Rule 404(b).70
At a minimum, the State may not discuss the merits of the pardoned, prior
64
Groseclose, 106 F.2d at 313 (“[A] pardon, to the extent of its terms, does nothing more than to abolish all
restrictions upon the liberty of the pardoned one, and upon his civil rights that follow a felony conviction and
sentence. As to what effect a pardon would have based upon the discovery of absolute innocence of crime we need
not here consider, for the text of each pardon in this case assumes the guilt of the petitioner.”); see also Dixon, 527
F. Supp. at 717-19.
65
66
Wells v. State, 237 Ga. App. 109, 113-14, 514 S.E.2d 245, 249-50 (1999) (allowing “a charge that has
been nolle prossed to be used as evidence of a similar transaction”); Richards v. State, 222 Ga. App. 853, 855, 476
S.E.2d 598, 601 (1996); Drake, 170 Ga. App. at 846 (“The mere entry of nolle prosequi does not indicate an absence
of the commission of a criminal act or forever clear one of the charges brought against him.”).
67
Randolph v. State, 198 Ga. App. 291, 292, 401 S.E.2d 310, 311-12 (1991) (“Although a prosecution may
fall short of proving a criminal offense, evidence as to certain conduct may nevertheless be admissible in a trial of
another offense . . . .”).
68
Wells v. State, 237 Ga. App. at 113-14 (“It is well settled that there need not be a criminal charge or
conviction relating to a similar offense for it to be admissible.”).
69
Gurleski v. U.S., 405 F.2d 253, 266 (5th Cir. 1968) (“In the absence of doubt being cast on the validity of
these convictions, the pardon is not a bar.”); Richards v. U.S., 192 F.2d 602, 605-08 (D.C. Cir. 1951) (“[T]he ends of
justice will be better served by permitting the prosecutor to bring out the facts concerning the defendant's previous
conviction in a case of this sort than by endeavoring to keep the fact of such a conviction from the jury . . . . If the
general rule permitting impeachment of a defendant is valid, and we are bound so to consider it, then we think it
follows that we should not create an exception in cases of the present sort.”). .
70
O.C.G.A. § 24-4-404(b) (West 2015); Hudson v. State, 271 Ga. 477, 478-80, 521 S.E.2d 810, 812-14
(1999) (introducing evidence of a prior conviction without any factual basis to show relevance to the charged
offenses is an inadmissible use of extrinsic, character evidence; the court’s analysis was in relation to the misnomer
“similar transactions rule”). If the State does present a factual basis for the Defendant’s prior conviction, such
presentation of extrinsic, character evidence is still subject to hearsay rules of evidence in subsequent prosecution of
the Defendant. See O.C.G.A. § 24-8-803 (West 2015); but see Castellon v. State, 240 Ga. App. 85, 86, 522 S.E.2d
568, 570 (1999).

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conviction beyond what information is absolutely necessary for the jury to evaluate the relevance
of the Defendant’s prior conviction to the charged offense.71
The State should be generally
limited to the status of the conviction rather than disclosing the substantive claims from the prior
offense.72
1. Rule 404(b)
The pardoned, prior conviction must withstand the analysis under Rule 404(b) and Rule
403. The State must show a proper purpose before introducing extrinsic, character evidence for
some other purpose than to prove the Defendant’s character.73
If the prior conviction bears no
relation to the elements of the crime in the charged offense, and the only logical conclusion is to
show the Defendant’s conformity therewith, then the prior conviction should not be admitted as
irrelevant extrinsic, character evidence.74
Particularly problematic is the State’s use of extrinsic evidence related to an independent
crime, wrong, or act when the Defendant accepted a plea offer, and the Defendant never testified
at trial. Aside from the State proffering evidence related to the factual basis for the guilty plea,
the State’s use of evidence never submitted to a trier of fact in a subsequent prosecution of the
Defendant raises evidentiary concerns regardless of the Defendant waiving the right to a trial or
cross-examination.75
Whether Georgia law properly distinguishes between evidence from
71
See Hudson, 271 Ga. at 478-80.
72
Pitera, 795 F. Supp. at 575.
73
Lustgarden, 966 F.2d at 555.
74
Jones, 297 Ga. at 159 (“In no case may evidence of other acts be admitted for the sole purpose of proving
the character of the accused to show that he acted in conformity therewith.”).
75
See Henderson, 182 Ga. App. at 517-18 (“The confrontation clause guarantees the defendant in a
criminal trial the general right to cross-examine the witness, that being the principal means by which the
believability of a witness and the truth of his testimony are tested.”). This analysis pertains to the State initiating the
use of the Defendant’s prior conviction, and offering extrinsic evidence related to the Defendant’s character.
However, if the Defendant proffers the use of the Defendant’s prior conviction, then the Defendant should not
benefit from the same level of protection during the pre-trial phase. Cf. O.C.G.A. § 24-4-404(a) (West 2015)
(opening the door). But, the Defendant is mostly at risk during the pre-trial phase because the majority of criminal
cases are disposed of by way of guilty pleas at that time.

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extrinsic, character evidence obtained by a guilty verdict by a plea or jury trial may be
dispositive to the real issue: Whether the State may proffer such untested evidence in violation of
the Defendant’s right of confrontation in subsequent prosecution and the right to a fair trial.76
Furthermore, with respect to defining a conviction, other courts distinguish the difference
between a guilty plea and a jury verdict regarding the sufficiency of the evidence related to a
prior (or another) conviction.77
When the Georgia statute does not define a conviction “with
precision, where [the term conviction] is subject to two possible interpretations, caution
mandates selection of the narrower, lest classes of individuals not specifically identified by
Congress be subject to irrevocable punishment.”78
The rule of lenity stands for the proposition
76
See U.S. CONST. amend. VI (fair trial); U.S. CONST. amend. V (double jeopardy); U.S. CONST. amend.
XIV (due process); Nelson, 488 U.S. at 44-50 (Marshall, J., dissenting); cf. Lafler v. Cooper, 132 S. Ct. 1376, 1385-
88 (2012) (distinguishing a conviction between a guilty plea and a jury verdict to determine the prejudicial effect
from the ineffective assistance of counsel); Missouri v. Frye, 132 S. Ct. 1399, 1407-08 (2012) (distinguishing a
conviction between a guilty plea and a jury verdict to determine the prejudicial effect from the ineffective assistance
of counsel); Williams v. Jones, 571 F.3d 1086, 1109 (10th Cir. 2009) (distinguishing a conviction between a guilty
plea and a jury verdict for habeas corpus); Apprendi v. New Jersey, 530 U.S. 466, 544 (2000) (defining a jury verdict
in relation to aggravating factors for sentencing); Pitera, 795 F. Supp. at 573-74 (distinguishing a conviction from a
guilty plea and a jury verdict for purposes of sentencing); In re Estates of Swanson, 344 Mont. 266, 270, 187 P.3d
631, 634 (2008) (distinguishing conviction between a guilty plea and a jury verdict for purposes of establishing
prerequisite intent under the slayer statute for intestacy succession); Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58
Cal. 2d 601, 605-06, 375 P.2d 439, 441-42 (1962) (distinguishing between a guilty plea and a jury verdict: “When a
plea of guilty has been entered in the prior action, no issues have been ‘drawn into controversy’ by a ‘full
presentation’ of the case. It may reflect only a compromise or a belief that paying a fine is more advantageous than
litigation.”). For example, under Georgia law, the State is prohibited from using extrinsic, character evidence from a
plea of nolo contendere. O.C.G.A. § 17-7-95 (West 2015); O.C.G.A. § 24-6-609(d); but see Ellis, 316 Ga. App. at
364-65 (failing to object to the State’s use of extrinsic, character evidence from a plea of nolo contendere rendered a
harmless error).
77
Compare O.C.G.A. § 16-1-3(4) (West 2015) (“‘Conviction’ includes a final judgment of conviction
entered upon a verdict or finding of guilty of a crime or upon a plea of guilty.”), with Pitera, 795 F. Supp. at 577
(“Because Congress has failed to indicate which of two common meanings it intended for the phrase ‘has been
convicted’ . . . the rule of lenity compels this court to interpret the phrase in its strictest sense to require a judgment
of conviction and not simply a plea or verdict of guilty.”); U.S. v. Franklin, 829 F. Supp. 1319, 1321 (M.D. Fla.
1993) (quoting U.S. v. Semensohn, 421 F.2d 1206, 1208 (2d Cir. 1970)) (stating that a conviction is not “final ‘until
sentence has been imposed.’”).
78
Pitera, 795 F. Supp. at 576-77.

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that the court must strictly construe criminal statutes, resolving any ambiguities in favor of lenity
toward the Defendant.79
The State’s use of this extrinsic, character evidence from a pardoned, prior conviction
raises other legal issues as to the meaning of conviction with the distinction between a guilty plea
and a jury verdict80
that may implicate concerns with: the rule of lenity;81
collateral estoppel;82
due process;83
double jeopardy;84
the right to a fair trial;85
and the presumption of innocence,86
and so forth. Depending on the nature of the plea, and whether the Defendant ever testified,
issues of first impression arise regarding the use of a pardoned, prior conviction in subsequent
prosecution of the Defendant.
Much of the administration of criminal justice happens with the trial setting in the
backdrop, yet, the actual trial takes place rarely. The Federal Rules of Evidence, and the Georgia
Rules of Evidence, are designed for the introduction of evidence at trial. A plea offer reduces
into a guilty plea that is merely an admission to the crime; however, the process is akin to a
settlement in civil cases that never go to trial. One may posit that the use of untested extrinsic,
character evidence in subsequent prosecution for “other purposes” is merely propensity,
79
Id. (defining conviction with respect to 18 U.S.C. § 924(c) with “its narrower definition at common law:
a defendant ‘has been convicted’ under [21 U.S.C. ]§ 848(n)(2) when a judgment of conviction has been entered
against him, not simply when a guilty verdict has been returned.”).
80
Pitera, 795 F. Supp. at 573-74; but see Teitelbaum Furs, Inc., 58 Cal. 2d at 605-06 (discussing that
evidence of a former acquittal used as extrinsic evidence in a civil case was admitted on the basis that the proof was
merely insufficient against a higher burden of proof in a criminal trial);
81
See, e.g., Pitera, 795 F. Supp. at 574.
82
See, e.g., Gardner, 273 Ga. at 810; Lucas, 178 Ga. App. at 150; Safeco Ins. Co. of Am. v. McGrath, 42
Wash. App. 58, 62-64, 708 P.2d 657, 659-61 (1985); Albert v. Montgomery, 732 F.2d 865, 869-70 (11th Cir. 1984);
Teitelbaum Furs, Inc., 58 Cal. 2d at 606.
83
Pitera, 795 F. Supp. at 573-74; N. Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d
162 (U.S. 1970) (distinguishing convictions between a nolo contendere plea and a jury verdict).
84
Lucas, 178 Ga. App. at 150.
85
Henderson, 182 Ga. App. at 523 (Benham, J., dissenting); see also Safeco Ins. Co. of Am., 42 Wash.
App. at 62-64 (avoiding collateral issues to the litigation in a subsequent civil case).
86
In re Winship, 397 U.S. at 359-64; Jackson, 443 U.S. at 309-19.

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character evidence in disguise without a proper showing and analysis of whether such extrinsic,
character evidence is relevant.
2. Rule 609(c)(1)
Prior convictions have been admissible as a basis for impeachment under Rule
609(c)(1).87
Under Georgia law, pardoned, prior convictions are admissible as extrinsic,
character evidence if such evidence withstands the rigors of Rule 609(c)(1):
For the purpose of attacking the character for truthfulness of a witness . . .
[e]vidence of a conviction shall not be admissible under this Code section if:
(1) The conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been convicted of a
subsequent crime which was punishable by death or imprisonment in excess of
one year.88
Here, the court must focus on whether the Defendant’s prior conviction during impeachment
of the Defendant “indicated a probable lack of veracity rather than a propensity to commit the
crime of which he was charged.”89
Regarding the State’s use of a prior conviction resulting from a guilty plea for
impeachment purposes, “care must be taken to ensure that the evidence admitted is used only to
impeach the credibility of the witness and not as substantive evidence against the defendant.”90
87
McMichael, 358 F. Supp. at 647-48; Gurleski, 405 F.2d at 266 (“A pardon for any other reason than
subsequent proof of innocence does not obliterate the defendant's previous transgressions particularly as they may
bear on his present character and veracity. Any number of reasons may lie behind the granting of an executive
pardon, but the granting of a pardon does not in itself indicate any defect in previous convictions. Neither does it
negate any bearing that they may have on present credibility.”).
88
O.C.G.A. § 24-6-609(c)(1).
89
Tate, 289 Ga. App. at 480-81.
90
U.S. v. Chilcote, 724 F.2d 1498, 1503-04 (11th Cir. 1984). In Chilcote, the court relied upon various
factors regarding the admissibility of a co-conspirator’s guilty plea. 724 F.2d 1498, 1503 (11th Cir. 1984) (citing
U.S. v. King, 505 F.2d 602, 608 (5th Cir. 1974)). In King, the admissibility of a conviction from a guilty plea
depends upon “examin[ing] all the facts and circumstances of the case in their proper context.” 505 F.2d 602, 608
(5th Cir. 1974). The factors include, but are not limited to the following:
The presence or absence of an instruction is an important factor, but it is also essential to consider
other factors, such as whether there was a proper purpose in introducing the fact of the guilty
plea, whether the plea was improperly emphasized or used as substantive evidence of guilt,
whether the introduction of the plea was invited by defense counsel, whether an objection was

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In contrast, other courts have held that “no distinction between a jury's finding of guilty and the
entry of judgment for impeachment purposes” exists provided that: (1) the evidence meets the
other requirements of Rule 609 under the Federal Rules of Evidence; and (2) the defendant has a
chance to explain the surrounding circumstances of the plea or conviction.91
Under this framework, the Defendant’s rebuttal on cross-examination may impermissibly
open the door for further inquiry into the Defendant’s character.92
If the State elicits character
evidence for the first time during cross-examinations, then the State’s use of eliciting testimony
regarding the Defendant’s prior conviction is an improper means of attacking the Defendant’s
credibility with extrinsic, character evidence.93
Other courts have found due process violations
implicit when allowing the State to elicit character evidence on cross-examination with respect to
the Defendant’s own testimony regarding prior convictions (or extrinsic evidence).94
Moreover,
this analysis is moot if the Defendant never testifies in court or another legal proceeding.
C. Rule 403
In theory, this use of extrinsic, character evidence risks confusion to a hypothetical jury
whereby the State may still offer proof of extrinsic, character evidence regarding a conviction
resulting from a guilty plea—whether the State introduces the evidence as substantive evidence
or to impeach the Defendant.95
Particularly, if the State raises extrinsic, character evidence akin
entered or an instruction requested, whether the defendant's failure to object to the testimony could
have been the result of tactical consideration, and whether, in light of all the evidence, the failure
to give an instruction was harmless beyond a reasonable doubt.
505 F.2d at 608 (emphasis added).
91
U.S. v. Vanderbosch, 610 F.2d 95, 97 (2d Cir. 1979).
92
U.S. CONST. amend. VI; U.S. CONST. amend. XIV; see FED. R. EVID. 404(a)(2); O.C.G.A. § 24-6-
404(a)(1) (West 2015); Franklin, 829 F. Supp. at 1322-23.
93
Franklin, 829 F. Supp. at 1322-23.
94
Id.; but see United States v. Lewis, 482 F.2d 632, 638-39 (D.C. Cir. 1973) disapproved of by United
States v. Winter, 663 F.2d 1120 (1st Cir. 1981).
95
O.C.G.A. § 24-4-403 (West 2015); see Hunter v. Hardnett, 199 Ga. App. 443, 443-44, 405 S.E.2d 286,
287-88 (1991).

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to a collateral trial in subsequent prosecution of the Defendant, the risk of confusion is great as
the jury will assume all the evidence from the factual basis provided by way of explanation to be
true and accurate.96
But, the admission of guilt by way of a guilty plea forecloses the sufficiency
of the State’s evidence beyond a reasonable doubt by way of a trial. When the State presents a
factual basis for a prior conviction, and presents extrinsic evidence to that effect, the State
misleads the jury that the Defendant’s admission to a crime when accepting a plea offer is the
same as proving the merits of the case beyond a reasonable doubt.97
But, the analysis of whether
such extrinsic, character evidence is relevant to a rational juror is moot when the case never goes
to trial with respect to guilty pleas.
Unless the Defendant opens the door, or extrinsic evidence is admitted under another
evidence rule, due process concerns prohibit the State from bootstrapping prior convictions (or
extrinsic evidence) during cross-examination instead of proving each element of the offense
beyond a reasonable doubt.98
In reality, with the administration of criminal justice largely
bootstrapped to plea bargaining, the State’s use of extrinsic, character evidence is simply another
chip to ante up in plea negotiations for subsequent prosecution.99
This type of unfettered,
negotiating power unfairly captures the spirit of forbidding the use of propensity, character
evidence in a prejudicial manner.100
96
O.C.G.A. § 24-4-403 (West 2013).
97
Id.
98
O.C.G.A. § 24-4-403 (West 2013); In re Winship, 397 U.S. at 359-64; Jackson, 443 U.S. at 309-19.
99
See Lafler, 132 S. Ct. at 1385-88; Frye, 132 S. Ct. at 1407-08; see also Evitts v. Lucey, 469 U.S. 387,
401, 105 S. Ct. 830, 838 (1985); Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 505 (1962) (prohibiting the use of
an “unjustifiable standard such as race, religion, or other arbitrary classification”); Magana v. Hofbauer, 263 F.3d
542, 553 (6th Cir. 2001) (burdening the State to “overcome a rebuttable presumption of prosecutorial
vindictiveness”);
100
See U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977) (“It is the role of the judge or jury
to determine the facts, not that of the attorney.”); Stephanos Bibas, Regulating the Plea-Bargaining Market: From
Caveat Emptor to Consumer Protection, 99 CAL. L. REV. 1117, 1127-28 (2011) (faulting inflated sentencing
guidelines as bargaining chips for prosecutors).

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This prejudicial effect from the State’s wide use of extrinsic, character evidence is a
major motivating factor that stopgaps the trial from ever occurring at all—regardless of the
Defendant’s innocence or guilt.101
The Federal Rules of Evidence, nor the Georgia Rules of
Evidence, counteract the reality that plea bargains—and not trials—dominate the administration
of the criminal justice system.102
The Federal Rules of Evidence, and Georgia Rules of Evidence,
are designed for introducing evidence at trial. However, the Federal Rules of Evidence, or the
Georgia Rules of Evidence, do not govern extrinsic, character evidence against the backdrop of
plea negotiations before trial. Thus, the reality of plea negotiations securing the vast majority of
convictions melt away the trial as the gold standard of constitutional protections for Defendants
in practice.103
Here, the State never secured such a conviction on the actual merits of the case beyond a
reasonable doubt. The Defendant never testified. The merits of the Defendant’s prior conviction
were never tested beyond a reasonable doubt. The State, and not the Defendant, seeks to
introduce the evidence from a pardoned, prior conviction for other purposes under Rule 404(b).
Under Rule 404(b), character evidence from a pardoned, prior conviction secured by a guilty
plea may not be sufficient evidence to reintroduce as a collateral issue in a subsequent
prosecution of the Defendant. The logical conclusion that the State should not be able to
accomplish under Rule 404(b) what the State may not accomplish under Rule 404(a) and Rule
609(c)(1) does not necessarily apply through the lens of whether a prior, pardoned conviction is
relevant for other purposes than proving the Defendant’s character. Further analysis turns upon
101
See Baker, 432 F.3d at 1204.
102
Argersinger v. Hamlin, 407 U.S. 25, 35-36 (1972).
103
Cf. Lafler, 132 S. Ct. at 1398 (Scalia, J., dissenting); Williams, 571 F.3d at 1090 (Gorsuch, J.,
dissenting).

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whether the State establishes the proper foundation for extrinsic, character evidence under Rule
404 or Rule 609.
Hence, the State’s use of a pardoned, prior conviction for child molestation is irrelevant
and unfairly prejudicial to invoke the stigma against convicted child molesters generally and
elicit disgust toward the Defendant specifically.104
The State’s use of prior convictions involving
child molestation in case involving the separate and distinct charges that bears no relation to any
subsequent sexual crimes (whether charged or uncharged) is merely inflammatory. The lack of
relevance is circumstantial evidence of the State’s improper purpose to use the Defendant’s prior
conviction for child molestation solely for the purpose to show the Defendant’s alleged
propensity to commit crime.105
This inflammatory use of extrinsic, character evidence is strictly
prohibited under Rule 404(a), and, ultimately, under Rule 403.106
Further analysis under Rule 403 is beyond the scope of this assignment.107
Once the
Defendant raises this objection, then the judge must record the judge’s analysis under the Rule
104
See State v. Butler, 256 Ga. 448, 455, 349 S.E.2d 684, 689 (1986) (Smith, J., dissenting) (“We cannot
allow our revulsion of sexual abuse or molestation to turn our courts into a forum in which the accusation becomes
the conviction and affirmance.”); U.S. v. Sandoval, 410 F. Supp. 2d 1071, 1074-79 (D.N.M. 2005) (“Society places
a heavy stigma upon those accused of sex crimes . . . .”); U.S. v. Castillo, 140 F.3d 874, 882 (10th Cir. 1998)
(admitting “evidence of a defendant's propensities, such as evidence of the defendant's prior criminal acts” creates a
risk that the prejudicial effect of that evidence secures the defendant’s conviction instead of the on the merits of the
State’s case); see also Old Chief v. U.S., 519 U.S. 172, 181, 117 S. Ct. 644, 650 (1997) (quoting U.S. v. Moccia, 681
F.2d 61, 63 (1st Cir. 1982)) (“‘[T]he risk that a jury will convict for crimes other than those charged—or that,
uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect
that outweighs ordinary relevance.’”); In re Winship, 397 U.S. at 363-64; but see Ex parte Garland, 71 U.S. at 341-
43 (explaining that “a pardon was held to render the convict a competent witness, upon the ground that the pardon
removed not only the punishment but the stigma of guilt”).
105
O.C.G.A. § 24-4-404(a) (West 2015).
106
O.C.G.A. §§ 24-4-403, 24-4-404(b) (West 2015).
107
The countervailing considerations in Rule 403 balancing under Rule 414 are comparative to analyze the
balancing test in Rule 403 under 404(b) or 609 for prior, convictions related to sexual offenses (notwithstanding the
requirement that the crime charged also includes a sexual offense under Rules 412, 413, 414, and 415):
1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is
admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail
itself of any less prejudicial evidence. When analyzing the probative dangers, a court considers: 1) how
likely is it such evidence will contribute to an improperly-based jury verdict; 2) the extent to which such
evidence will distract the jury from the central issues of the trial; and 3) how time consuming it will be to
prove the prior conduct.

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403 balancing test for any potential issues upon appeal, if granted.108
The final step in the overall
analysis involves applying the harmless error doctrine.109
The Defendant must also request an
appropriate remedy in the event that the error was harmful to request: either an acquittal or a new
trial.110
CONCLUSION
The analysis of a pardoned, prior conviction under Rule 404(b) is a multi-layered analysis
that raises some issues, arguably, as issues of first impression. The only mention of prior
convictions specifically under both the Georgia Rules of Evidence, and the Federal Rules of
Evidence, is in relation to Rule 609 for impeachment. Otherwise, Rule 404(b) is silent on the
matter. Because Rule 404(b) is primarily a nuanced rule regarding propensity, character
evidence, one may posit that pardoned, prior conviction are admissible for other purposes aside
from showing the Defendant’s propensity to commit crime.
More importantly, conclusory analyses will no longer suffice under the revised Georgia
Rules of Evidence as the State must clearly show the “other purpose” with enough of a factual
basis to determine whether the prior conviction is relevant to the subsequent prosecution of the
Defendant. Arguably, the use of extrinsic, character evidence from a conviction that resulted
from a guilty plea must carefully be evaluated before tendering to the court in subsequent
Sandoval, 410 F. Supp. 2d at 1074-79 (citing U.S. v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) opinion
clarified, No. 96-2285, 1998 WL 133994 (10th Cir. Mar. 25, 1998) (citations omitted))).
108
U.S. v. Dewrell, 52 M.J. 601, 609 (A.F. Ct. Crim. App. 1999) aff'd, 55 M.J. 131 (C.A.A.F. 2001); see
Gainor, supra note Error! Bookmark not defined., at 766-68 (“Many courts, however, continue to admit evidence
of prior conviction of violent crimes, sex crimes, and drug offenses for purposes of impeachment, even though the
prior offense is similar to the crime charged, and often without any on-the-record balancing of probative value
against prejudicial effect.”). If the Defendant does not raise an objection to extrinsic, character evidence
contemporaneously as the State proffers such evidence, then such objection is waived thereafter. The same applies
to the Defendant’s request for a limiting instruction on extrinsic, character evidence if such evidence is admitted. See
Belt, 269 Ga. at 763-65.
109
See Williams, 328 Ga. App. at 877-78; Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 828
(1967); Fahy v. State of Conn., 375 U.S. 85, 86-87, 84 S. Ct. 229, 230 (1963)
110
Nelson, 488 U.S. at 33-34 (awarding a new trial would not be violation of the Fifth Amendment Double
Jeopardy Clause).

of 23
prosecutions of the Defendant. The mere use of a prior conviction, whether pardoned or not, may
not serve as sufficient, competent evidence to raise again as a collateral issue in a subsequent
prosecution of the Defendant. Worse, such extrinsic, character evidence may violate a number of
the Defendant’s federal and state constitutional rights in subsequent prosecutions.

Dickson_Davis_Deborah_Sample_Writing_Memorandum_Rule_404b_Pardons_060716

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