evidence; Federal Rules of Evidence; Rule 608; Rule 609; prior conviction; character evidence


Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify. And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges. The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed Advisory Committee [n]ote. The balance of the essay elaborates on the [n]ote’s discussion. The discussion highlights the proposal’s consistency with recent White House and [U.S.] Department of Justice [(DOJ)] policy initiatives and the unique opportunity that the elimination of Rule 609 presents to the Advisory Committee to improve the fairness and legitimacy of American trials.