EvidenceProf Blog

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

Monday, April 4, 2011

Article Of Interest: Montré D. Carodine's Keeping it Real: Reforming the "Untried Conviction" Impeachment Rule

Readers of this blog know that some of the areas of evidence/criminal procedure that I find the most fascinating are plea bargaining (see, e.g., here, here, and here) and prior conviction impeachment (see, e.g., herehere, and here). My main argument with regard to plea bargaining is that a variety of factors (such as the public defender crisis, the way that courts have interpreted Federal Rule of Evidence 410, impeachment, rebuttal, and case-in-chief waivers, and the toothless judicial review of plea bargains) have rendered modern plea bargaining unfair both in procedure and outcome. Meanwhile, my main argument with regard to prior conviction impeachment is that courts have botched the analysis under Federal Rule of Evidence 609, too readily deeming admissible defendants' prior convictions, resulting in too few defendants testifying and too many defendants being wrongfully convicted. I had never, however, thought about what effect our nation's plea bargaining crisis might have on prior conviction impeachment. Professor Montré D. Carodine of The University of Alabama School of Law, however, did address the interplay between these two threads in her terrific recent article, Keeping it Real: Reforming the "Untried Conviction" Impeachment Rule, 69 Md. L. Rev. 501 (2010).

Federal Rule of Evidence 609(a) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

It is well established that evidence of prior convictions admitted under Rule 609 can have minimal probative value and maximum prejudicial effect.  For instance, courts often admit prior convictions for larceny, robbery, and even drug possession under Rule 609. Do these convictions really tell us much about whether the witness is lying on the witness stand (especially when the witness is a criminal defendant)? And, when a defendant's prior drug-related convictions are admitted at his trial on drug-related charges, do we really trust jurors to use these convictions solely as evidence that his testimony might not be trustworthy and not to conclude "Once a drug dealer, always a drug dealer?"

If we are being honest with ourselves, I think that the answer is a clear "no." Instead, courts continue to apply Rule 609 in such cases based upon the negative effect that departure from the Rule would have on criminal prosecutions across the country. I also think that this reasoning explains why courts have been reluctant to admit testimony on the inaccuracy of eyewitness identifications.

But even if we buy that certain prior crimes are sufficiently probative of a defendant's veracity, we would need to be convinced that a conviction is reliable enough evidence that the defendant committed one of those crimes to admit it against him under Rule 609. In her article, Professor Carodine notes that this reliability is questionable enough when a conviction comes after a full jury trial and  "that the already low probative value of...evidence [of prior convictions] is diminished further when the convictions were bargained for, and the prejudice to the criminal defendant is magnified by the use of such unreliable convictions." This is why her article in entitled, Keeping it Real: If we look at the actual McJustice assembly line justice meted out by the plea bargaining system, we would have to conclude that convictions resulting from plea bargains (i.e., untried convictions) are too unreliable to be admissible under Rule 609.

So, what should we do? First, we could conclude that the entire criminal justice system is broken to such an extent that Federal Rule of Evidence 609 and state counterparts should be eliminated altogether or "at least with respect to criminal defendants." Indeed, Professor Carodine notes that some states have already taken this approach, such as Hawai'i, which precludes prior conviction impeachment of defendants based upon finding that "the prior conviction impeachment rule unreasonably burdens a criminal defendant's right to testify and thus violates due process." Alternatively, Congress and state legislatures could remove evidence of untried prior convictions from the purview of Federal Rule of Evidence 609 and state counterparts.

But what if Congress and state legislatures are unwilling to take such actions? In that case, Professor Carodine argues that courts could find that the admission of evidence of untried prior convictions violates the Due Process Clause. She notes that in Loper v. Beto, 405 U.S. 473 (1972), the Supreme Court held that evidence of prior convictions is per se inadmissible for impeachment purposes when those convictions resulted from trials in which defendants were denied the right to counsel. And while defendants who plea bargain are not denied the right to counsel, Professor Carodine claims that "Loper remains instructive...because the core principle in the case was that prior convictions must be reliable to be admissible under Rule 609."

Moreover, she claims that the analysis in two similar contexts could be instructive to the analysis of the admissibility of untried convictions under Rule 609. First, courts refuse to allow for the admission of convictions from foreign countries if they resulted from proceedings lacking in fundamental fairness under comity principles. According to Professor Carodine,

Judges who are concerned about fundamental fairness when faced with the question of whether to admit a prior conviction for impeachment purposes should expand Loper's doctrine and formulate an analysis akin to that which courts use in the foreign judgment cases. Courts should not routinely admit untried convictions under Rule 609. Instead, they should seriously consider a defendant's claims regarding the lack of fundamental fairness in the plea bargaining process. If a defendant makes a colorable claim that the plea bargaining process that resulted in his conviction was fundamentally unfair, the burden should shift to the prosecutor to establish the fundamental fairness of those proceedings.

Professor Carodine then notes that

What I propose is similar to what some courts do in the civil context with respect to applicability of issue preclusion or collateral estoppel to convictions resulting from plea bargains, which I discussed earlier in this Article. For example, in Talarico v. Dunlap, the Illinois Supreme Court said that it would "look behind the curtain of...negotiated plea[s]"to determine "on a case-by-case basis" whether the criminal defendant had an "incentive to litigate" his criminal case, which is necessary for the application of issue preclusion.  Thus, the court considered the terms of the defendant's plea deal and the record of the proceedings in his criminal case to determine if there was a "compelling showing of unfairness."

I envision an analogous inquiry with untried convictions offered for impeachment. With respect to the issue of assistance of counsel, for example, courts should be concerned with more than whether there was an attorney representing the defendant on the record as a mere formality. Defendants should be able to raise claims that their attorneys pressured them into pleading or were otherwise ineffective during the bargaining process. Furthermore, judges should consider the fundamental fairness of some indigent defense rules that do not adequately provide for persons who are poor and cannot afford counsel, but who are not poor enough under the relevant statutes

I think that Professor Carodine's article presents a fascinating and inventive argument, and I strongly recommend it to readers. I asked her what led her to write the article, and she responded:

I am generally concerned with the reliability of our criminal justice system.  I wrote this particular piece because of all of the Rules of Evidence, I am most skeptical of the application of Rule 609, especially as applied to criminal defendants.  I am also quite skeptical of our current plea bargaining regime, which often forces criminal defendants to "bargain" away their freedom under coercive circumstances and without adequate legal counsel.  I thought that it would be a valuable contribution to both evidence and criminal law scholarship to explore the interplay between prior conviction impeachment and plea bargaining, two very controversial practices.  Both, I believe, work together in many cases to undermine the reliability of our system.  I hope that the reforms that I suggest in the paper, along with other reforms proposed in various other areas of criminal law, can help produce a more reliable system.  



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