REFORMING PRIOR CONVICTION IMPEACHMENT.

• Author: Roberts, Anna

Introduction 378 I. Arguments 384 A. Prior Conviction Impeachment Creates a High Risk of Unfair Prejudice and Lacks Any Proven Ability to Predict Lying 384 B. Prior Conviction Impeachment Deters Valuable (and Constitutionally Protected) Testimony at Trial 390 C. Prior Conviction Impeachment Compounds Racial Bias 392 D. Prior Conviction Impeachment Treats Conviction as a Lasting or Even Permanent Brand on Character 395 1. Assumed Commission of the Named Crime 395 2. Assumed Character Traits Associated with Convictions 396 3. Long-Lasting Brand on Character 397 E. Prior Conviction Impeachment Compounds the Risk of Unfair Prejudice and Wrongful Conviction 397 II. Possible Reforms 399 A. Eliminate Prior Conviction Impeachment 400 B. Permit Impeachment with Evidence of Lying under Oath 401 C. Permit Impeachment with Prior Convictions Involving Dishonesty or False Statement 403 D. Prohibit Impeachment of Criminal Defendants with Prior Convictions 407 E. Maintain Criminal Defendants' Ability to Impeach the Witnesses Against Them 410 Conclusion 412 INTRODUCTION

John Thompson spent eighteen years in prison after being convicted of a robbery and a murder. (1) For fourteen of those years, he was on death row. (2) Yet, he had committed neither the robbery nor the later murder. (3) Mr. Thompson's story is in some ways familiar. For example, it involved a notorious prosecutor, Harry Connick Sr., who was found to have "regularly suppressed crucial evidence" including in twenty-five percent of cases in which the defendants were eventually sentenced to death. (4) Withholding of evidence by so-called "tough on crime" prosecutors is a known source of wrongful convictions. (5) But there is another aspect of Thompson's wrongful conviction that may be equally common yet is much less remarked: the role of Thompson's prior conviction for robbery in his trial for murder.

Thompson was arrested in 1985 after police received a tip from a man named Richard Perkins accusing Thompson and a man he knew, Kevin Freeman, of committing a carjacking and murder. (6) The police arrested both Freeman and Thompson. They found the murder weapon and a ring belonging to the victim in Thompson's possession. Freeman agreed to cooperate with the prosecution and testify against Thompson in exchange for a lighter charge. In the prosecutors' discussions with Freeman, a crucial fact was either not disclosed or ignored: Freeman had recently sold Thompson both the gun and the ring. (7)

After Thompson's arrest, another man saw Thompson's photograph on the news and called the police to accuse him of trying to commit an unrelated robbery. (8) Harry Connick Sr. decided to try Thompson first on the robbery, "knowing that a conviction could be used against him in the murder trial." (9) On the testimony of the robbery victims, all of whom were minors, Thompson was convicted. (10)

Thompson's trial for murder followed. With the evidence of the ring and the gun, and testimony from Freeman and Perkins, Thompson was convicted. What Connick Sr. failed to tell Thompson's lawyer at the time was that blood had been found at the scene of the crime that ruled out Thompson. (11) The existence of this evidence only came to light after an investigator working for Thompson's defense team discovered it in April 1999, thirty days before Thompson's scheduled execution. (12) Defense attorneys also learned that Perkins had been paid $15,000 by the victim's family.

Back in 1985, however, as predicted by Harry Connick Sr., the robbery conviction did have an effect at Thompson's murder trial. As Thompson himself wrote in 2011:

After [the robbery conviction], my lawyers thought it was best if I didn't testify at the murder trial. So I never defended myself, or got to explain that I got the [incriminating evidence] from Kevin Freeman. (13) From this, it seems that Thompson's attorneys didn't want him to testify at his own murder trial because of the risk that the jury would learn about his prior conviction. If Thompson testified, the prosecutor could impeach his credibility with the prior conviction under Louisiana's prior conviction rule. (14) If Thompson remained silent, the prior conviction would not be admissible. Rather than allow the jury to hear about the robbery conviction, defense attorneys counseled Thompson to give up his chance to offer his own compelling, and more importantly, true explanation for why he was found in possession of the gun used in the murder and the victim's ring.

Why would Thompson's lawyers counsel such a sacrifice? Being impeached by a prior conviction, as evidence rules almost universally permit, seems preferable to being silenced altogether. (15) Yet, as this Article will describe, research suggests that when prior convictions are introduced, jurors do not follow their instructions to use them only to assess the truthfulness or untruthfulness of the defendant. Rather, prior convictions have the effect of lowering the burden of proof and making it easier to convict criminal defendants, particularly in close cases. (16) Defense counsel therefore fear, with justification, that if they allow their clients to testify, and the jury learns about a prior conviction, it will be fatal to the defense. (17) This fear is strong enough to outweigh the possibility that the defendant's decision not to testify will make it impossible to defend against the charges, as happened, with tragic consequences, to John Thompson.

In all but three states, prior convictions are routinely introduced under the rules of evidence in order to impeach the credibility of both defendants and other witnesses. (18) These rules, many mirroring Federal Rule of Evidence (FRE) 609, provide that a witness's "character for truthfulness" may be attacked with evidence of a criminal conviction. (19) If such a conviction is deemed to have involved dishonesty, many evidence codes require that the evidence be admitted. (20) If the conviction doesn't fall into that category, often, though not always, (21) such rules require that judges balance the probative value of such a conviction against the risk of unfair prejudice. If the witness is a criminal defendant, the balancing test often requires that the probative value outweigh the risk of unfair prejudice, (22) whereas for other witnesses, more permissive balancing tests are often used. (23) In many, if not most, jurisdictions, however, such balancing tests have provided little constraint on the practice of prior conviction impeachment. (24)

As evidence scholars, we have each dedicated a good portion of our careers thus far to pointing out the fallacy of this form of impeachment and the serious consequences for those, like John Thompson, who suffer as a result of it. (25) In article after article, we have argued that prior convictions have no established connection to a witness's propensity for truthfulness or untruthfulness. We have also written that this form of impeachment has manifold pernicious consequences. Prior convictions silence defendants, they offer powerful leverage for prosecutors in the context of plea agreements even as they may have little connection to a defendant's conduct, and they unfairly prejudice juries who hear about them. These effects are amplified exponentially for witnesses of color who are disproportionately the bearers of prior convictions. These arguments have not all been new. Much of our own work has echoed over half a century of critique of prior conviction impeachment. (26) Yet, the practice has continued unchanged.

Three years ago, we decided to combine our scholarship with activism. We felt that we had done enough writing into the void and wanted to work for change more directly. As a beginning, we invited fellow evidence scholars who had written about the problem of prior conviction impeachment to participate in a working group. We convened at a conference to think about what the next steps might be towards actual reform. Of course, that conference and the next one moved online, but still we were able to draw on the depth of knowledge within our group, now called the Prior Conviction Impeachment Reform Coalition (the "Coalition") and gather ideas for a reform effort. (27)

Happily, one of those ideas bore fruit. We wrote to advocacy groups whose mandates might encompass this topic and wound up meeting with Bonnie Hoffman, the Director of Public Defense Reform and Training at the National Association of Criminal Defense Lawyers (NACDL). (28) Through Bonnie, we met with an all-star lineup of the defense bar of Washington State. At that meeting, we heard that most of the lawyers had accepted prior conviction impeachment as a given. While doing superlative work in one of the profession's most demanding jobs, they did not have the time to plan an attack on an established evidentiary practice. Yet, after seeing scholarship by some Coalition members in preparation for our meeting, they were unanimous in their belief that prior conviction impeachment is unprincipled, and that reform is essential. We are now partnering with them in an attempt to change the rules on prior conviction impeachment in Washington State. We have recently seen a portion of a brief that was a direct result of our meeting. It had been filed by the Washington Appellate Project, challenging the admission of a prior conviction and using arguments put forward in Coalition scholarship. (29) In addition, we recently submitted an amicus brief on behalf of members of the Coalition to the Oregon Supreme Court in a case challenging Oregon's extremely permissive approach to prior conviction impeachment. (30)

This Article emerges out of our collaboration with NACDL and is another part of our reform effort. We decided it was important to pull together what we see as the strongest set of arguments for reform and the strongest set of reform proposals. This Article is therefore explicitly designed as an aid to anyone seeking to change the rules or practice...