Federal Rule of Evidence 609 (adopted by various states as well) allows for the introduction of certain convictions at trial to impeach the credibility— i.e., character for truthfulness—of any witness. The rule bifurcates its requirements between those that apply to criminal defendants—who, in theory, are afforded greater protection throughout the law than are all other participants in trials—and all remaining witnesses. The most important distinction between the standards that apply to these two classes of witnesses is that for prior crimes of criminal defendants to be introduced to impeach their credibility, those wrongdoings must survive a special balancing test spelled out within Rule 609. In contrast, evidence of prior crimes used to assess the character for truthfulness of non-criminal-defendant witnesses is subject to the well-known balancing test found in Rule 403. Critically, commentators, scholars, and courts alike (with one notable judicial distinction) have paid virtually no attention to the actual language of Rule 609’s key operating provision applicable to criminal defendants. As written, the rule is not merely more favorable to criminal defendants, as many have easily concluded; it is manifestly inoperable. This crucial flaw in the rule has largely been overlooked. After detailing the historical and legislative development of Rule 609, this Article, for the first time: (1) shows that courts have been routinely applying a similitude of Rule 609 that contravenes the express language enacted by Congress, (2) demonstrates, through a Euclidean mathematical proof, that Rule 609, as written, is inoperable against criminal defendants, and (3) evaluates several methods to address this longstanding, overlooked problem with the rule.
The "Unfairness" Proof: Exposing the Fatal Flaw Hidden in the Rule Governing the Use of Criminal Convictions To Impeach Character for Truthfulness,
49 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol49/iss1/2