Who Proves Prior Record?

Who proves prior convictions for sentencing purposes? By statute, the State. Sometimes, however, in the fast-paced world of district court, marshaling a defendant’s criminal record can seem like a shared responsibility, with the prosecutor, judge, and clerk all playing a role. Especially today, when more statewide information is available at a mouse click through CJLEADS and other resources, information on a defendant’s record might come to light through means other than proof by the State. Is that okay? Let’s start with the statutes. Under Structured Sentencing, the burden of proving prior convictions is on the State. G.S. 15A-1340.14(f) (felonies); G.S. 15A-1340.21(c) (misdemeanors). But the felony record level and misdemeanor conviction level statutes are not identically worded. The statute for felony prior record level places an affirmative burden on the prosecutor to “make all feasible efforts to obtain and present to the court the offender’s full record,” G.S. 15A-1340.14(f), while the statute governing sentencing of misdemeanors includes no such requirement. For sentencing of impaired drivers, G.S. 20-179 is more demanding: the State must “make all feasible efforts to secure the defendant’s full record of traffic convictions,” and “shall present to the judge that record for consideration in the hearing,” where they must be proved beyond a reasonable doubt. G.S. 20-179(a). Beyond the statutes, there is also an ethical dimension to proving a defendant’s prior record. The State and the defendant may not enter into a calculated agreement to underreport the defendant’s record in order to reduce the defendant’s exposure—even if the judge [...]