COMMENTARY: THE USE OF PRIOR CONVICTIONS

COMMENTARY: THE USE OF PRIOR CONVICTIONS

As originally drafted, Rule 609 was the result of an elaborate political debate and compromise in the courts, the House, the Senate, and the Conference Committee. It is also an example of the evidence rules taking their own ostensible logic too seriously. Rule 609 held that the only reason for introducing prior convictions is for their probative value on the question of whether the defendant (who has taken the stand) is a liar. This logic played itself out in a categorization of crimes that supposedly reflect on the criminal's honesty as opposed to crimes that show his other qualities but do not relate to honesty.

Impeachment by prior crimes could alternatively be viewed as a practical counterbalance to the fifth amendment, allowing the prosecution minimal latitude in telling the factfinder about the background of a defendant who chooses to step out from behind the shield of the fifth amendment to assert his innocence. The defendant with a criminal record is thereby prevented from presenting himself to the jury as naively innocent. Many courts harbor this view of Rule 609.

The logic of this approach would forswear the idea that the sole function of introducing prior convictions is to prove by the nature of the prior crime that the defendant has a dishonest character. The harsh truth is that all defendants have an extremely powerful incentive to tell a story consistent with their innocence. Instead, the function of impeachment by prior crimes could be conceived more broadly: to give the factfinder some background about the defendant to provide a framework in which to judge the plausibility of the defendant's story of innocence. The drafters compromised by throwing admissibility of prior crimes evidence into the lap of the trial judge who was to do one weighing under 609(a) for most crimes and a second weighing under 609(b) for vintage crimes. As a result, the debate continued in the courts with the rule serving, at best, as a guideline.

Because of continued criticism and debate over the scope and application of Rule 609, the Advisory Committee on the Federal Rules considered many requests for amendments to the rule. In 1990, several amendments were adopted, but many of the issues that troubled courts and practitioners were not resolved.

The 1990 amendment to Rule 609 did three major things. First, it deleted from the original rule the limitation that impeaching convictions may only be elicited during cross-examination. This amendment merely ratified the common practice of the witness's revealing on direct examination his convictions to "take the sting out'' of the impeachment. Most courts of appeal had permitted this tactic under the old rule.

Second, the amendment removed an ambiguity in the rule concerning impeachment of witnesses other than a criminal accused, such as the plaintiff in a civil lawsuit. While the 1990 amendments were under submission to Congress, the Supreme Court held in Green v. Rock Laundry Machine Co., 490 U.S. 504 (1989), that not only did Rule 609 permit a civil litigant to impeach an adversary's credibility with evidence of the adversary's prior felony convictions, but that the rules did not permit the trial court to exercise any discretion under Rule 403 to exclude the impeaching conviction evidence on grounds of prejudice. The majority opinion in Green reviewed the tortured legislative history of Rule 609 in detail and concluded that the admission of prior felony convictions (burglary) was mandatory in Green's product liability lawsuit for damages received when a machine he was operating at his car wash job tore off his right arm. The 1990 amendment confirms that witnesses in civil cases, as well as witnesses other than the accused in criminal cases, may be impeached by prior convictions, but it explicitly provides for a Rule 403 balancing of probativeness and prejudice (except for convictions involving dishonesty or false statement, which under Rule 609(a)(2) continue to be mandatorily admissible without any balancing in all cases).

Third, the rule retained the special balancing test for the criminal defendant who chooses to testify--in this case, the court must determine that the probative value of admitting the impeachment evidence outweighs its prejudicial effect to the accused (again, excepting convictions involving dishonesty or false statement)--but removed any ambiguity that this special balancing test was available to other defense witnesses.

Unfortunately, the 1990 amendment did not clarify the meaning of crimes involving "dishonesty or false statement,'' which must be admitted under 609(a)(2) even if their prejudicial effect outweighs their probative value. The Advisory Committee noted that "some cases raise a concern about the proper interpretation of the words 'dishonesty or false statement,' '' but decided that the final Conference Report on the original rule "provides sufficient guidance to trial courts and that no amendment is necessary, notwithstanding some decisions that take an unduly broad view of 'dishonesty,' admitting convictions as for bank robbery or bank larceny.'' Thus, the amendments left this element of the debate over the logic of Rule 609 to the courts.

Finally, the drafters of the amendment also declined to add any language to the rule stating that when a prior conviction is offered under Rule 609, the probative value of the prior conviction is to be considered for impeachment only. The Advisory Committee concluded that this limitation was perfectly clear because of the title of the rule, its first sentence, and its placement among the impeachment rules.

It is interesting to count the different weighings that courts must keep straight when prior crimes impeachment evidence is offered. From the "most stringent'' weighing to the least stringent weighing (i.e., no weighing permitted), they are:

juvenile adjudications - generally not admissible, but if (609(d)) necessary for a fair determination of the issue of guilt, juvenile adjudications of witness other than the accused may be allowed if admissible against an adult

old convictions - court must determine in the interest of (609(b)) justice that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect

accused's felony convictions - court must determine that the probative (609(a)(1)) value of admitting evidence outweighs prejudice to the accused

witness other than accused - Rule 403 balance--admitted unless 609(a)(1)) prejudice substantially outweighs probativeness

crimes involving dishonesty or false statement (609(a)(2)) shall be admitted without weighing

Compare the language of Rule 609(a)(1) ("the probative value ... outweighs its prejudicial effect to the accused'') with the language of Rule 403 ("excluded if its probative value is substantially outweighed by the danger of unfair prejudice''). Assuming this different phraseology was purposeful, when a defendant witness is faced with a prior felony conviction not involving dishonesty or false statement, the presumption is in favor of exclusion. For the evidence to be admitted, the scale must just be tipped in favor of probativeness. If the conviction is older than ten years, there is a strong presumptive bar, and the scale must be tipped substantially in favor of probativeness before it is admitted. Finally, under the basic relevance rule (Rule 403), the information is allowed unless the scale is substantially in favor of prejudice; but once a conviction passes Rule 609(b)'s hurdle, this weighing is superfluous.

These differences can be visualized as loci on a continuum with a fulcrum that attempts to balance the desire for information with fairness. At the threshold relevance level, as much information as possible should be allowed to assist truth finding; thus, there is a presumption in favor of admitting information (Rule 403). With felony/nondishonesty crimes of the accused, the desire for the information is still strong but the possibility of unfairness increases so the evidence will be admitted only if there is a showing that probativeness outweighs prejudice (Rule 609(a)(1)). When the information is that of a stale conviction, the desire for the information is lessened because of its weaker probative value and there is still a high potential for prejudice (though perhaps less so than with more recent convictions); thus, there is a strong presumption against admitting the evidence (Rule 609(b)).

Keeping these various standards straight is complicated enough, but the problem is compounded by the lack of any guidance in the rules about what factors courts should weigh in the exercise of discretion under any of these standards. Are the same factors applicable for each standard? What are the factors that go into the exercise of discretion under each standard?