WPIC 4.78 Stipulation of Prior Offense (“Old Chief Stipulation”)

Use this instruction when the parties have stipulated that the defendant has previously been convicted of a crime. For stipulations of other undisputed facts, use WPIC 4.77 (Stipulation as to Undisputed Facts or Elements of Offense). For stipulations to the admissibility of evidence, use WPIC 4.76 (Stipulation as to Admission of Evidence), instead of this instruction.

The broad rule is that the prosecuting authority need not accept a defendant's offer to stipulate. An exception has been created for what is often referred to as an “Old Chief stipulation.” State v. Johnson, 90 Wn.App. 54, 62, 950 P.2d 981 (1998). Generally, “a defendant's Rule 403 objection offering to concede a point cannot prevail over the prosecution's choice to offer evidence showing guilt and all the circumstances surrounding the offense.” State v. Johnson, 90 Wn.App. at 62 (quoting Old Chief v. U.S., 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)). However, it has been held to be error to admit evidence of a specific prior conviction when the existence of the conviction is an element of the crime and the defendant offers to stipulate to the existence of the prior conviction. See Old Chief v. U.S., 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (felon in possession of firearm prosecution wherein trial court erred in rejecting defense offer to stipulate to prior felony conviction); State v. Johnson, 90 Wn.App. at 62–63 (trial court erred in admitting a prior rape conviction to prove the element of a previous “serious offense” conviction in an unlawful possession of a firearm case where defendant proffered a stipulation to the existence of the prior felony conviction).

Care must be taken when drafting an Old Chief stipulation to ensure that the language of the stipulation matches the language of the element instruction. A failure to do so could result in a mistrial. See State v. Garcia, 177 Wn.App. 769, 313 P.3d 422 (2013) (mistrial not required despite the element instruction's specifically referencing first degree robbery as a “serious offense” despite the defendant's stipulation, as the trial court promptly corrected the instruction and advised the jury to disregard the prior instruction).

An Old Chief stipulation by a defendant may be submitted to the jury as a jury instruction. See State v. Wolf, 134 Wn.App. 196, 203, 139 P.3d 414 (2006) (trial courts have many options for dealing with stipulations to elements). More commonly, the trial court will read (but not submit) the Old Chief stipulation to the jury.

The second paragraph of the instruction is based on State v. Roswell, 165 Wn.2d 186, 198 n.6, 196 P.3d 705 (2008) (discussing procedure trial courts may use to limit prejudice from prior conviction while maintaining the integrity of jury instructions that clearly define the State's burden).

A trial court judge should accept an Old Chief stipulation only if the judge is convinced the stipulation is voluntarily made. United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980). To meet this burden, the judge should inquire personally of the defendant before accepting the stipulation. State v. Roswell, 165 Wn.2d at 198 n.6. An on-the-record colloquy between the court and the defendant is not required “when a stipulation is agreed to by the defendant's attorney in the presence of the defendant” and the defendant does not object at the time the stipulation is made. State v. Humphries, 181 Wn.2d 708, 715, 336 P.3d 1121 (2014). Since the failure to object will only give rise to a presumption of voluntariness, State v. Humphries, 181 Wn.2d at 715, the best practice is to have the defendant sign a written stipulation and to acknowledge the stipulation in open court.

To assist practitioners, the WPI Committee has drafted a sample waiver and stipulation. The samples are drafted in the context of a defendant's stipulation that a prior conviction qualifies as a particular classification of offense (e.g., a crime against persons).