The Sexual Assault Exception to the "Bare Fact" Rule

Yesterday, I taught a class on the use of Rule 404(b) evidence in sexual assault cases. During the class, we discussed the general rule against admitting the bare fact of a defendant’s prior conviction. As Jessie discussed here, the basic idea is that even when Rule 404(b) evidence is admissible, if the bad act at issue resulted in a criminal conviction, the conviction itself is inadmissible. The rule comes from State v. Wilkerson, 356 N.C. 418 (2002), a case in which the state supreme court adopted, per curiam, Judge Wynn’s dissent in the court of appeals. Judge Wynn wrote: [T]he bare fact of a defendant's prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose; instead, it is the facts and circumstances underlying such a conviction which hold probative value. Judge Wynn reasoned that when the fact of a conviction is admitted, it adds no probative value but carries a prejudicial effect, meaning that admitting the bare fact of conviction violates the balancing test of Rule 403. Further, he argued, whether a defendant’s prior convictions are admissible is governed by Rule 609, which allows them to be admitted for impeachment purposes under certain circumstances. Allowing them to be admitted under Rule 404(b), in his view, would eviscerate Rule 609. However, in the concluding paragraphs of his opinion, Judge Wynn suggested several exceptions to the general rule. He said that the bare fact of a defendant’s prior conviction should not be admitted “except in cases where our courts [...]