Defendant was arrested at the scene and given a full Miranda warning and chose (wisely) to remain silent. At trial, Defendant testified in his own defense and was asked repeatedly by the district attorney to explain why he had remained silent at the time of arrest instead of revealing his alibi to police.

The Vipperman court noted, “No less than six times did the prosecution press Defendant to explain his post-arrest silence, knowing full well that under the Miranda rule he had been told by the police officers that he had a right to remain silent.” Although Nevada case law states that, “[M]ere passing reference to silence…does not mandate automatic reversal” (See Shepp v. State, 87 Nev. 179, 181 (1971), in Vipperman there was more that “mere passing reference.”

The court held, “due process prohibits any inference to be drawn from the exercise of one’s constitutional right to remain silent after arrest.”

Further limiting the admissibility of character evidence is the Collateral Fact rule codified by NRS 50.085(3). Under this rule it is improper to allow the State to impeach a defendant’s credibility with extrinsic evidence relating to a collateral matter. Collateral facts are facts that are outside the controversy, or are not directly connected with the principal matter or issue in dispute.

In Jezdik v. State, 110 P.3d 1058 (2005), a case involving allegations of fraudulent use of a credit card and identity theft, the Nevada Supreme Court adopted the “specific contradiction” exception to the collateral fact rule of NRS 50.085(3). The exception holds that a defendant’s false statements during direct examination open the door to the admissibility of remedial specific contradiction evidence. At trial, Defendant took the stand and testified. His attorney asked, “Have you ever been accused of anything prior to these current charges?” to which Jezdik answered, “No.” As a result, the court allowed the state, in its rebuttal, to introduce testimony from two witnesses: A detective who testified that Jezdik was the subject of an ongoing unrelated investigation, and Jezdik’s father-in-law who testified that Jezdik had once admitted to using his personal information to open a credit card.

In affirming the trial court’s decision to admit the testimony of the state’s two witnesses on rebuttal, it distinguished Jezdik’s situation from one in which a defendant elects to introduce character evidence in the form of either reputation or opinion evidence. In the latter, the State is correspondingly limited in its rebuttal evidence and may only ask about specific acts on cross examination. The court determined that is not what happened in Jezdik’s case, but rather, that Jezdik’s testimony was essentially a denial of any prior specific instances of bad acts. Hence, Jezdik opened the door to the admissibility, by the state, of prior bad acts (uncharged or not) committed by Jezdik.

When a court orders a record sealed, “[a]ll proceedings recounted in the record are deemed never to have occurred.” NRS 179.285.  This fiction permits the subject of the sealed proceedings to properly deny his or her arrest, conviction, dismissal, or acquittal in connection with the proceedings.  In this way, sealing orders are intended to permit individuals previously involved with the criminal justice system to pursue law-abiding citizenship unencumbered by records of past transgressions.  It is clear, however, that such authorized disavowals cannot erase history.  Nor can the force persons who are aware of an individual’s criminal record to disregard independent facts known to them.

Accordingly, NRS 179.285 does not require the district court to disregard the memory of a defendant’s accusers.

The Ninth Circuit has held that a defendant can argue both that he did not commit the unlawful acts charged against him and that, if he did, he was entrapped. See United States v. Demma, 523 F.2d 981 (1975) (en banc).

Under federal law, the defendant has an initial burden to prove government inducement, but the government has the ultimate burden to prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents. United States v. Charles, 2009 WL 2871606 (C.A. 9th 2009), citing Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535 (1992), and United States v. Ross, 372 F.3d 1097, 1108 (9th Cir. 2004). Defendant must point to undisputed evidence making it patently clear that an otherwise innocent person was induced to commit the illegal act by trickery, persuasion, or fraud of a government agent. United States v. Mendoza-Prado, 314 F.3d 1099, 1102 (9th Cir. 2002).

In Thomas, Defendant was convicted of conspiracy to possess methamphetamine with intent to distribute and aiding and abetting possession of methamphetamine with intent to distribute. United States v. Thomas, 134 F.3d 975 (9th Cir. 1998). On appeal, it was held that the District Court erred when it failed to permit the defendant to testify that he had no prior arrest or conviction record and certainly no record of any past criminal behavior that in any way suggested that he might be predisposed to engage in large-scale drug trafficking. United States v. Thomas, 134 F.3d 975, 979 (9th Cir. 1998).

Five factors are relevant in determining whether a defendant was predisposed to commit a crime: (1) the character or reputation of the defendant; (2) whether the government made the initial suggestion of criminal activity; (3) whether the defendant engaged in the activity for profit; (4) whether the defendant showed any reluctance; and (5) the nature of the government’s inducement. United States v. Thomas, 134 F.3d 975, 978 (9th Cir. 1998).

Evidence of prior good acts is admissible under Rule 404(b) to prove the defendant’s intent or state of mind as long as it bears meaningfully on the defendant’s lack of a criminal disposition at the time of the government’s inducement. United States v. Thomas, 134 F.3d 975, 979 (9th Cir. 1998). Further, the Thomas court held, even if the proffered evidence were not admissible under Rule 404(b), it would be admissible under 405(b), because, to meet its burden of proof in the face of an entrapment defense, the government must prove predisposition beyond a reasonable doubt. United States v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998), citing Jacobson v. United States, 503 U.S. 540, 548-49, 112 S.Ct. 1535, 1540-41 (1992). For the jury to find predisposition beyond a reasonable doubt, it must consider the defendant’s character. United States v. Thomas, 134 F.3d 975, 980 (9th Cir. 1998).