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Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, May 13, 2008

Article of Interest: Professor John H. Blume's The Dilemma of the Criminal Defendant with a Prior Record -- Lessons from the Wrongfully Convicted

Cornell University Law School Professor John H. Blume has written a groundbreaking new article, The Dilemma of the Criminal Defendant with a Prior Record -- Lessons from the Wrongfully Convicted.  The article, which will be published in an upcoming issue of the Journal of Empirical Legal Studies, uses data gathered from the cases of incarcerated individuals subsequently exonerated due to DNA evidence to challenge the structure and application of Rule of Evidence 609, which governs impeachment through prior convictions. 

In his introduction, Professor Blume lays out the purpose of his article by noting that (1) impeachment critics assert that Rule 609 dissuades even innocent defendants from testifying, while (2) proponents counter that modifying Rule 609 to allow less impeachment would result in a flood of perjured testimony from guilty defendants liberated from their prior misdeeds.  According to Blume, cold hard facts have been missing from this debate, and his article is an attempt to fill this empirical void by examining cases of individuals who were convicted of crimes that we now know, as a result of DNA testing, they did not commit.

In Part II, Blume begins by laying out the current legal framework governing whether and when prosecutors can introduce prior convictions against criminal defendants.  He begins by laying out the less controversial and more entrenched anti-propensity rule contained in Federal Rule of Evidence 404 (and state counterparts), under which evidence of a defendant's bad character is inadmissible to prove that the defendant has a propensity to act in a certain manner (e.g., violently) and that he likely acted in conformity with that propensity at the time of an alleged crime.  At the same time, Federal Rule of Evidence 609 allows for prosecutors to impeach criminal defendants through relatively recent (1) prior convictions for crimes of "dishonesty or false statement" without regard to Federal Rule of Evidence 403 and (2) prior felony convictions not involving "dishonesty or false statement" as long as their probative value outweighs their prejudicial effect.  According to Blume, despite the fear that these convictions will impermissibly be used as propensity evidence, they are almost always admitted for impeachment purposes because courts find a wide variety of crimes involve "dishonesty and false statement" and because the probative value/prejudicial effect balance is routinely struck in favor of impeachment.  Such rulings deter criminal defendants with prior criminal records from testifying, but the unanswered question is whether it merely deters "guilty" defendants from testifying.

In Part III, Blume goes a long way toward answering that question by reviewing case summaries maintained by the Innocence Project.  From these summaries, Blume was able to determine whether 119 criminal defendants who were convicted but subsequently exonerated through DNA evidence testified at their trials.  Here are his results, compared against the baseline of the approximately 50% of all criminal defendants who testify at their trials:

     -61% of the wrongfully convicted testified at their trials while 39% did not;

     -of the wrongfully convicted defendants who testified, 43% had criminal records, with judges permitting every single one of these defendants to be impeached through their prior convictions;

     -of the wrongfully convicted defendants who failed to testify, 91% had prior convictions, with almost all of their attorneys indicating that avoiding impeachment was the principal reason why the defendant did not take the stand; and

     -in the few jurisdictions where impeachment with prior convictions is not permitted, all of the wrongfully convicted defendants testified.

Based upon this data, Blume concludes that "many demonstrably innocent defendants did not testify at trial because, had they done so, they would have been impeached with their prior convictions" and that this data "reveals the shortcomings of the current regulatory system, which gives courts discretion in most cases to allow or preclude impeachment."

In Part IV, Blume argues that these shortcomings can be cured through his proposal, under which the prosecution would not be allowed to impeach a criminal defendant's testimony through convictions unless "(1) the defendant has been previously convicted of perjury and the court determines that the probative value of permitting impeachment outweighs the prejudice to the accused; or (2) the defendant 'opens the door' by offering evidence of his character for truthfulness."  Blume lays out three arguments in support of limiting convictions-based impeachment in this manner:  (1) threatening a criminal defendant with the introduction of his prior record contributes to wrongful convictions; (2) there is no reason to believe that precluding impeachment will lead jurors to place too much weight on a defendant's testimony; and (3) except where the defendant has been previously convicted of perjury, there is no reason to believe that individuals with a prior record are more likely to lie under oath than defendants without prior records.

I asked Professor Blume about what led him to write the article, and he responded:

"Thank you for your interest in the article.  In much of my work, I try (with varying degrees of success) to challenge the "conventional wisdom."  I also think, as do many others, that the DNA exoneration cases are a very valuable data set which we can use to study the criminal justice system, and formulate ways to improve its accuracy.  I have always been interested in the issue of impeachment, and whether in fact the threat of impeachment with prior convictions kept actually innocent defendants from testifying at trial.  So, when an adequate number of exoneration cases were available to study, I decided to determine whether innocent defendants testified at any higher rates than criminal defendants in general, and, if not, why not.  So, that was the genesis of the project.  Much of my prior work, empirical and doctrinal, has been in the criminal procedure area, particularly capital punishment.  But, with this piece and another recent article ("Every Juror wants a Story:  Narrative Relevance, Third Party Guilt and the Right to Present a Defense") I have started to work more in the Evidence field and I have found it very rewarding."



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The way the criminal justice system operates in the US is a disgrace.

Posted by: Brian | Apr 19, 2010 12:19:02 AM

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