Monday, August 18, 2014
Federal Rule of Evidence 609 governs the admissibility of criminal convictions to impeach witness credibility. In a 2008 article, I criticized how the federal courts apply this rule, arguing that because of a widely adopted, often misapplied, and partially incoherent multi-factor framework, courts were letting too many defendants' convictions be used as impeachment. As I argued, if courts simply jettisoned the framework and did what the rule commanded – weigh probative value against prejudicial effect – exclusion would become the norm as intended. Apart from getting the law right, this would have an additional benefit of generating more defendant testimony. (Defendants generally decline to testify once a judge rules that their record comes in if they do.) I don’t know how anyone can get behind a system where the person the jury most wants to hear from and who wants to tell his story sits silently at counsel table to keep the jury from hearing about his criminal record.
My arguments made little headway over the years and defendants’ convictions continue to be routinely admitted, but recently the Third Circuit cited my piece (along with criticism of others) in what may be one of the first signs of judicial dissatisfaction with the multi-factored balancing test. The court also used/endorsed language rarely seen in published opinions that, in my view, gets the tone of Rule 609 right.
Commentators have observed that structuring the balancing in this manner creates a “predisposition toward exclusion.” Wright & Gold, Federal Practice and Procedure § 6132, at 216. “An exception is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present.”Id. § 6132, at 217.
Expect to see this language in lots of defense filings going forward and join with me in hoping that the courts are finally awakening to the unmitigated disaster that is the multi-factored Rule 609 balancing test.