Article of Interest: “Restoring Justice: Purging Evil From Federal Rule of Evidence 609,” by Judge Timothy Rice

The Honorable Timothy R. Rice, United States Magistrate Judge for the Eastern District of Pennsylvania, sent me a copy of his forthcoming article, “Restoring Justice: Purging Evil From Federal Rule of Evidence 609.” (forthcoming Temple Law Review) (Download Restoring Justice). The article deals with Federal Rule of Evidence 609, which allows for the admission of certain criminal convictions to impeach/call into the question the credibility of witnesses at trial. In particular, Rule 609(a)(1) allows for the impeachment of witnesses based upon certain felony convictions that were not based upon dishonesty. Judge Rice notes that this Rule is in fundamental tension with the trend toward restorative justice, “a process to help those with a stake in a specific offense to ‘collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible.'” 

Specifically,

Reentry programs designed to assist returning citizens effectively combine the characteristics of the traditional punitive model and the restorative model. Such programs are often designed with the dual objective of reducing recidivism and ameliorating the societal harms caused by mass incarceration. Reentry programs exist in myriad forms through the state and federal criminal justice systems.91 At their core, they share a common theme of striving to break the cycle of reoffending through a variety of practices designed to help returning citizens resume productive, law-abiding lives within the broader community. 

According to Judge Rice,

The focus of reentry programs on providing returning citizens with a fresh start stands in stark contrast with Rule 609(a)(1)’s premise that returning citizens possess an evil character flaw that makes them inclined to lie. Impeachment using a felony conviction is more than simply posing a question to a returning citizen. Rather, it rekindles a psychological barrier to a returning citizen’s full integration into the community by labeling the witness as possessing bad character. Each time a person who has successfully reentered our community is impeached with a prior felony unrelated to truthfulness, society renews its condemnation of that person’s character and undermines restorative efforts aimed at rehabilitation and healing. 

Therefore, “[a]ny marginal relevance of such impeachment fails to justify the ongoing punishment of returning citizens called to testify in our courts.” This is because “[i]mpeachment with a prior felony, however, impedes that restorative process by imposing an ongoing stigma that burdens the returning citizen with reminders of a criminal past.”

I believe that Judge Rice makes a convincing argument in his paper that Rule 609(a)(1) fundamentally conflicts with the restorative justice and reentry models. I also doubt that jurors actually use prior felony convictions introduced under the Rule to assess the witness’s credibility as opposed to using them to make judgments about the general character of the witness. Therefore, I think that there’s a strong argument for severely limiting the scope of the Rule.

-CM