Are My Past Crimes Admissible in Court?

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When you’ve been arrested and charged with a crime, you may be focused on the big things like making bail and finding a skilled South Carolina criminal defense lawyer to fight for your interests. But maybe this isn’t your first time getting in trouble with the law. If you’ve been in trouble before, you are probably worried about whether your past criminal conduct can be used against you this time.

The answer is a bit more complicated than it might seem, but in general, the South Carolina rules of evidence say that your prior bad acts cannot be used against you directly. But this does not mean a clever prosecutor won’t be able to get it in some other way.

Rule 404(b) Other Crimes, Wrongs, or Acts

According to the South Carolina rules of evidence, evidence of your past crimes or bad behavior are not admissible to prove your character or your “behavior in conformity” with that prior behavior. So, just because you may have been convicted of petty theft five years ago does not mean you were guilty of petty theft in a present charge. Your past crime cannot be directly admitted to prove you have a propensity to steal.


The prosecutor can introduce your past conduct in order to show any of the following. We’ve included examples to help you understand how prosecutors might try to get in your past conduct or crimes. Remember, once a jury hears it, there is a good chance they may conflate your guilt in the past crime with a higher likelihood of guilt in the present one, which is specifically why the law doesn’t allow it.


The general rule says the state cannot present evidence of past crimes to prove a defendant committed the present one. However, let’s say you are charged with assaulting someone. Two years ago, you were convicted of a drug crime, in which that person gave you up to the police. A prosecutor would likely be allowed to introduce your prior conviction as evidence that you had a motive to attack the person.


Let’s say a defendant is charged with domestic battery and claims as a defense that it was an accident. A past conviction for battery may be used to show that this was not accidental, but rather there was intent to do harm.


A defendant is charged with robbery and is caught on video. However, the defendant claims that the person in the video is not him. In a past robbery, for which he was convicted, he was wearing the same unique piece of jewelry and had the same sweatshirt. Evidence of the past robbery might get in as evidence to show the correct identity of the person in the video.

Common scheme or plan

Assume a defendant is part of a gang, and there has been testimony that they were going to rob 3 businesses (1 per year for 3 years). The defendant was convicted of participant in the first robbery 3 years ago. A prosecutor might be able to admit evidence of the first conviction to show that the present robbery is part of a bigger plan.

Absence of mistake or accident

A defendant is charged with drug trafficking, because he was found with a large package of narcotics. In his defense, he argues that he had no idea it was drugs. A prosecutor may be able to admit past similar crimes involving packages of narcotics to show that this was not a mistake or error.

Rule 403 Exclusion for Prejudice, Confusion or Waste of Time

Even if the evidence against you is relevant and perfectly admissible otherwise, you may still be able to get it excluded if the potential prejudice would outweigh the benefit, or if it is likely to just confuse the jury or waste time. This is a very nuanced rule that is often the source of a lot of argument.

In short, this rule is a catch-all that allows you to argue that even though admissible, particular evidence would have little benefit in actually determining the facts, but it would be so prejudicial that it could create an injustice.

Hiring a Lowcountry Defense Lawyer

Throughout South Carolina, attorney David Aylor represents people who have been charged with serious criminal offenses. With experience both as a prosecutor and a defense lawyer, you can count on David Aylor Law Offices to help with even the toughest cases. Contact us today!

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