EvidenceProf Blog

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

Thursday, May 25, 2017

Article of Interest: "Restoring Justice: Purging Evil From Federal Rule of Evidence 609," by Judge Timothy Rice

The Honorable Timothy R. Rice, United States Magistrate Judge for the Eastern District of Pennsylvania, sent me a copy of his forthcoming article, "Restoring Justice: Purging Evil From Federal Rule of Evidence 609." (forthcoming Temple Law Review) (Download Restoring Justice). The article deals with Federal Rule of Evidence 609, which allows for the admission of certain criminal convictions to impeach/call into the question the credibility of witnesses at trial. In particular, Rule 609(a)(1) allows for the impeachment of witnesses based upon certain felony convictions that were not based upon dishonesty. Judge Rice notes that this Rule is in fundamental tension with the trend toward restorative justice, "a process to help those with a stake in a specific offense to 'collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible.'" 


Reentry programs designed to assist returning citizens effectively combine the characteristics of the traditional punitive model and the restorative model. Such programs are often designed with the dual objective of reducing recidivism and ameliorating the societal harms caused by mass incarceration. Reentry programs exist in myriad forms through the state and federal criminal justice systems.91 At their core, they share a common theme of striving to break the cycle of reoffending through a variety of practices designed to help returning citizens resume productive, law-abiding lives within the broader community. 

According to Judge Rice,

The focus of reentry programs on providing returning citizens with a fresh start stands in stark contrast with Rule 609(a)(1)'s premise that returning citizens possess an evil character flaw that makes them inclined to lie. Impeachment using a felony conviction is more than simply posing a question to a returning citizen. Rather, it rekindles a psychological barrier to a returning citizen’s full integration into the community by labeling the witness as possessing bad character. Each time a person who has successfully reentered our community is impeached with a prior felony unrelated to truthfulness, society renews its condemnation of that person’s character and undermines restorative efforts aimed at rehabilitation and healing. 

Therefore, "[a]ny marginal relevance of such impeachment fails to justify the ongoing punishment of returning citizens called to testify in our courts." This is because "[i]mpeachment with a prior felony, however, impedes that restorative process by imposing an ongoing stigma that burdens the returning citizen with reminders of a criminal past."

I believe that Judge Rice makes a convincing argument in his paper that Rule 609(a)(1) fundamentally conflicts with the restorative justice and reentry models. I also doubt that jurors actually use prior felony convictions introduced under the Rule to assess the witness's credibility as opposed to using them to make judgments about the general character of the witness. Therefore, I think that there's a strong argument for severely limiting the scope of the Rule.



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That thesis is quite compelling. The use of non-honesty-related offenses (like drug possession) never passed the smell test for me, but the argument you laid out here moves me from sheer suspicion to firm agreement that the practice is fundamentally flawed. Thank you for sharing :)

The author should consider drafting a version more suitable for the general public, and pitch it as an op-Ed to a mainstream outlet. This is the kind of thought leadership that is relevant beyond the direct implications to rule 609, as I think it says a whole lot about how society views returning-citizens in general.

(If you are curious about what I mean by thought leadership and the role op-eds serve, click the link in my name to the Op-Ed Project. I'm not directly associated with them, I just don't want to put URL in the comment field itself.)

Posted by: Paul | May 25, 2017 9:45:34 PM

Colin, to what extent do you think jurors use the "general character" of the witness in determining their credibility? Please expand on your point that you "doubt that jurors actually use prior felony convictions introduced under the Rule to assess the witness's credibility as opposed to using them to make judgments about the general character of the witness." Thanks!

Posted by: HS Mock Trial Coach | May 26, 2017 4:17:30 AM

Paul: I’ll let him know.

HS Mock Trial Coach: As noted in Robert D. Dodson, What Went Wrong with Federal Rule of Evidence 609: A Look at How Jurors Really Misuse Prior Conviction Evidence, 48 Drake L. Rev. 1, 31 (1999), “[n]umerous studies conducted over the past forty years show…jurors do use prior conviction evidence to infer criminal propensity and frequently ignore or fail to understand limiting instructions.” In other words, under Rule 609, we’re only supposed to use a witness’s prior conviction for, say, robbery, to assess whether the witness is telling the truth from the witness stand. But studies show that jurors actually use such conviction to conclude that the witness is generally criminally minded and likely involved in the crime at hand or other criminal behavior.

Posted by: Colin Miller | May 26, 2017 5:57:22 AM

Thanks, Colin. I was thinking about a situation where the witness is not the defendant - the prior conviction undermines credibility because of a proclivity to be criminally minded?

Posted by: HS Mock Trial Coach | May 26, 2017 6:24:11 AM

I'm not sure I even understand how a non-fraudulent felony conviction would be in any way helpful to assess credibility in the first place. I can only imagine it would be helpful if the person pled not guilty but was nonetheless convicted. But even then...

Posted by: Cupcake | May 26, 2017 8:52:35 AM

I wholeheartedly support this thesis. To me, the key point from the paper is, “Deeming all felony convictions relevant to prove untruthfulness, however, ignores the legal evolution of felonious conduct, which has expanded far beyond the narrow category of offenses punishable by death that had previously justified the common law’s skepticism toward returning citizens.” For example, UCMJ Article 125 (Sodomy), which, among other acts, makes oral sex between consenting adults – either heterosexual or homosexual – punishable by confinement for 5 years (under typical definitions of felony, that includes anything that is punishable by more than 1 year in prison). And yes, they do actually convict people of this. I know of a specific case where someone licked the thigh of another and was convicted of attempted consensual sodomy as a result. Do we seriously think everyone convicted of any conceivable felony (regardless of the circumstances or the extremely broadened definition of felony) is unqualified to participate as a full member of society, with all the rights and privileges provided to any other citizen?

Posted by: FormerAgent | May 26, 2017 6:28:51 PM

As noted in my previous post, I support the thesis of this paper. However, after reviewing the latest applications for writ of certiorari on Sessions v. Binderup currently under conference review by the Supreme Court, I find the chances of any progress in this regard nearly zero. Both the government and gun control groups are actively arguing that felons as a class are categorically prohibited (cannot even pursue “as applied” challenges) from even the Second Amendment right to bear arms as described in the Supreme Court decision in District of Columbia v Heller. In other words, regardless of the specific circumstances of a “felony” conviction (e.g., including crimes having no relation whatsoever to violence), that the categorical bar against felons is justified. I can’t see how a move to change FRE 609 to prohibit the impeachment of witnesses based solely on being felons (this is not impacting a constitutional right that I’m aware of) could possibly succeed under the current environment. No matter how good an idea this may be (a topic that well-meaning people can certainly debate), the current legislative, executive and judicial inertia is not moving at all in this direction. Very disappointing, IMHO.

Posted by: FormerAgent | Jun 2, 2017 5:38:05 PM

That's why this piece would be way more effective if rewritten for a wider audience and pitched as an op-ed about the greater societal issue at the heart of it.

Use the upcoming decision as a news lede and then drive home the argument. There are avenues other than the overturning precedent alone route.

Posted by: Paul | Jun 6, 2017 1:50:55 AM

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