CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, December 16, 2011

Rickert on FRE 609 and Past Sex Crime Convictions

Julia Rickert has posted Denying Defendants the Benefit of a Reasonable Doubt: Federal Rule of Evidence 609 and Past Sex Crime Convictions (Journal of Criminal Law and Criminology, Vol. 100, No. 1, 2010) on SSRN. Here is the abstract:

The vast majority of jurisdictions in the United States allow the credibility of testifying defendants to be impeached with evidence of prior felony convictions. This past crime evidence is admitted solely to show that the defendant may lack credibility. It is not admitted to show that the defendant has a tendency to commit crimes in general or that he or she is a bad, dangerous person. Juries are given a limiting instruction that is supposed to prevent improper use of the evidence, but courts and legislatures acknowledge that despite limiting instructions, past crime evidence can illegitimately prejudice a jury against a defendant. For this reason, judges are required to compare the prejudicial effect of past crimes evidence to its probative value before it is admitted. If the evidence is even slightly more prejudicial than probative of credibility, it is to be excluded.

Sex offense convictions are extraordinarily prejudicial — overwhelming evidence shows that sex offenders are the most feared and despised group in this country — and these convictions are not particularly probative of credibility. Yet judges rarely acknowledge this when comparing the probative value of past sex crime convictions to their prejudicial effect on jurors. This failure undermines evidentiary principles that are fundamental to our system of criminal justice. A defendant who previously was convicted of a sex offense is left with three bad choices: he or she can accept a plea bargain regardless of actual guilt; go to trial but decline to testify; or testify, but lose the jury’s goodwill when the sex crime conviction is presented. An acquittal based on valid reasonable doubt becomes much less likely.

For jurors in a criminal trial to fulfill their duty of determining whether a person is guilty of a particular act beyond a reasonable doubt, they must not be diverted from that task by intense dislike for a defendant who has previously been convicted of a sex crime. Legislatures and courts should adopt a rule that prior sex crime convictions are presumptively inadmissible to impeach credibility.

| Permalink


Among the most prevalent prejudices in sexual offense cases is that someone who is sexually promiscuous is commonly perceived as less trustworthy and hence more likely to be lying.

Posted by: Louise | Dec 19, 2011 12:03:56 AM

Post a comment