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Magistrate Judge: Change Rule of Evidence That Allows Prior Conviction to Impeach Witness

by Derek Gilna

Judicial proceedings are governed by strict rules, but none is more burdensome to convicted offenders than having their testimony disregarded because of a prior felony conviction. Federal proceedings are governed by the Federal Rules of Evidence. Rule 609(a)(1), enacted in 1975, permits attacking a witness’ character for truthfulness by evidence of a criminal conviction.

That is, Rule 609(a)(1) allows lawyers to impeach a witness with his or her felony conviction. Evidence of a previous felony conviction is used to challenge the witness’ overall truthfulness. This type of impeachment has been called a “charade,” a “hoax,” and “discriminatory and unfair.”

The issue may seem obscure, but to criminal defendants with prior felony convictions who wish to testify on their own behalf in their current trial, it is a very real and severe disadvantage. U.S. Magistrate Judge for the Eastern District of Pennsylvania Timothy Rice published an article in the Temple Law Review titled “Restoring Justice: Purging Evil from Federal Rule of Evidence 609.”

Judge Rice challenges Rule 609’s underlying premise that felonies, even those unrelated to truthfulness, “are always relevant to the credibility of all witnesses in all cases.” In the article, he “suggests that principles of restorative justice justify eliminating the use of a prior felony unrelated to truthfulness to impeach returning citizens [ex-offenders] who testify as witnesses.”

According to Judge Rice, “Our nation’s ongoing effort to assist returning citizens provides a fresh rationale for finally discarding the dubious premise of Rule 609(a)(1). A restorative justice approach to Rule 609, as embodied by many reentry programs, would vest returning citizens with a new presumption: instead of being branded as felons prone to evil, they not only would be welcomed back into society but also would be free from character attacks based on felonies that bear no nexus to truthfulness.” He proposes the abolition of using prior felony convictions to attack the truthfulness of witnesses.

Judge Rice has submitted this change to the advisory committee that evaluates changes to the Federal Rules of Evidence. The committee is currently considering his proposal. He notes that the change would build upon the experience of Montana, Hawaii, and Kansas, which have barred prior conviction impeachment altogether.  


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