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Trials are opportunities to resolve competing versions of the truth. The Federal Rules of Evidence govern that competition, and how attorneys can demonstrate to jurors a particular witness’s propensity, or lack thereof, to tell the truth.
There are a handful of Rules regarding impeachment and character evidence. One of those rules is Federal Rule of Evidence 609. Rule 609 is unique among this set of rules. Only under Rule 609 is extrinsic (i.e. documentary) evidence admissible to impeach a witness. Only Rule 609 permits a prior act to be demonstrative of dishonesty, regardless of whether that prior act involved any falsehood.
That is because Rule 609 allows courts to admit a criminal conviction into evidence “to attack a witness’s character for truthfulness.” The source of this rule is judge-made common law, under which a person convicted of a crime involving fraud or deceit could be impeached with evidence of that conviction. That is a rule that makes sense and has a limited ability for substantial unfairness. But Rule 609 expands on this limited scope of “impeachable offenses,” adopting the premise that it is both fair and reasonable to consider anyone who has breached society’s rules to be dishonest in the same way that a swindler is dishonest.
There are a number of problems with this idea. Expanding the common law rule permitting impeachment with evidence of crimes of dishonesty to all crimes – so long as they are punishable by more than one year, which in Pennsylvania is anything more serious than a third-degree misdemeanor – arbitrarily assumes the isolated commission of a crime is indicative of a dishonest character. That assumption is in tension with Rule 404, which says that evidence of a person’s character or character trait is inadmissible to prove that on a particular occasion the person acted in accordance with that character or trait. And it can hardly be debated that ours is an over-criminalized society. While America accounts for just 5% of the global population, 25% of all prisoners in the world are incarcerated here. Racial disparity in the criminal justice system is a much-studied phenomenon that results in disproportional minority representation in the criminal justice system, despite evidence that race has no bearing on propensity to commit crime.
The result is that Rule 609 creates parallel justice systems. It disproportionately places an obstacle before poorer minorities in their pursuit of justice in the courts.
By: Chris Markos