The Liar's Mark: Character and Forfeiture in Federal Rule of Evidence 609(a) (2).

• Author: Schupack, Jesse

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness's past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person's character, and (3) that an assessment of moral character based on past convictions will be suitably predictive of a person's reliability as a witness. These assumptions are false and so do not justify the mandatory admission of convictions under the Rule. The final Part of this Note argues that Rule 609(a)(2) is better understood as operating on an implicit principle of forfeiture. Recognizing this and modifying the structure of the Rule accordingly cures some of its current defects. But these revisions still leave something deeply concerning about Rule 609(a)(2). The logic of forfeiture substitutes a normative judgment about a particular class of people in place of an evidentiary judgment about the probative value of a certain kind of information. This Note concludes that this substitution is unprincipled and unjust, and that therefore Rule 609(a)(2) should be eliminated.

Table of Contents Introduction I. The Structure, Rationale, and History of Rule 609(A)(2) A. The Structure of Rule 609(a)(2) B. Rule 609(a)(2)'s Theory of Character C. The Origins of Crimen Falsi II. The Flawed Logic of Rule 609(a)(2) A. The Error in Rule 609(a)(2)'s Probabilistic Premise B. Rule 609(a)(2)'s Reliance on a Confused Taxonomy 1. The Conceptual Inadequacy of Crimen Falsi 2. The Unworkability of Crimen Falsi C. What the Rules Get Wrong About Character 1. Evidence Against the Rules' View of Character 2. The Falsus in Uno Doctrine and Rule 609 III. Rule 609(a)(2) as a Principle of Forfeiture A. A Forfeiture Theory of Rule 609(a)(2) B. Evidentiary Rules as Normative Judgments C. A Restructured Rule 609? D. Forfeiture as Proxy and Punishment Conclusion Introduction

Rule 609(a)(2) of the Federal Rules of Evidence is unique in dictating that a certain kind of evidence must be admitted. While 609(a)(1) permits admission of prior felony convictions for witness impeachment subject to a balancing test,1 section (a)(2) requires admission of evidence of past convictions "if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement." (2) It is the only Federal Rule of Evidence that denies judges the discretion to exclude a kind of evidence on the grounds that its admission would be more prejudicial than probative.(3) This Note explores and critiques the rationales and assumptions underpinning the Rule. The final Part considers an amended construction of Rule 609 that better comports with its underlying justification. Because even this reformulation is untenable, 609(a)(2) should be eliminated.

The stakes here are high. (4) Well over half of criminal defendants who testify are impeached under Rule 609, (5) and many more witnesses choose not to testify because they know they face the threat of impeachment. (6) This silencing is one strand in a larger web of rules within the criminal justice system that prevent parties from having a voice in their own defense. (7) A rule that carries such a substantial effect should have a cogent justification. But though Rule 609 as a whole is one of the most contentious in the Rules of Evidence, (8) almost all of that controversy centers on section (a)(1) and practically no scrutiny has been leveled at section (a)(2). (9) The reason for this discrepancy is initially intuitive. Objections to section (a)(1) tend to focus on the lack of justification for treating a past felony conviction--no matter its nature--as probative of a witness's current likelihood of lying on the stand. (10) Section (a)(2), by contrast, has a clear logic: people who have proven themselves to be liars are not trustworthy. (11) Thus, even those who are harshly critical of Rule 609 tend to propose amendments that modify or strike section (a)(1) while leaving (a)(2) mostly or wholly intact. (12)

This Note contributes to the ongoing debate by showing that Rule 609(a)(2)'s justification is not cogent. Part I describes the Rule's structure and its rationale, which turns on both a view of the nature of character and a view about the probabilistic value of certain kinds of character evidence. Part II argues that Rule 609(a)(2)'s theory of moral character and model of probabilistic reasoning do not withstand scrutiny and are inconsistent with the Rules' general avoidance of the risk of undue prejudice. Part III hypothesizes that Rule 609(a)(2) is actually underwritten by an unstated principle of forfeiture. Section (a)(2) would be sounder, more easily and consistently applied, and better aligned with the rest of the Rules if it were restructured to reflect this underlying forfeiture logic. This modification does not, however, face up to a more fundamental question: If the Rule's ultimate rationale is the logic of forfeiture, is that in fact just7. This Note argues, in conclusion, that the irremediable unfairness of the Rule's forfeiture logic makes even an amended version of the Rule unsatisfactory and that therefore the Rule should be eliminated.

1. The Structure, Rationale, and History of Rule 609(a)(2)

   Rule 609(a)(2) is distinctive in its mandatory-admissibility requirement. This requirement lacks justification, a problem that becomes apparent when contrasting the Advisory Committee's rationale for it with the norms governing the rest of the Rules of Evidence. (13) Section I.A outlines the ways in which the admission of character evidence under Rule 609(a)(2) diverges from the Rules' otherwise careful attention to the need for balancing the probative value and prejudicial effect of potential evidence. Section I.B explores the Advisory Committee's justification for the categorical admission of convictions for crimes of dishonesty, which turns on the specific kind of character trait that Rule 609(a)(2) allows a party to prove--a character for dishonesty. Section I.C turns to the category of crimes of dishonesty (also called crimen falsi) that is used in Rule 609(a)(2) and explores the origins of the taxonomy used to justify the Rule.

   1. The Structure of Rule 609(a)(2)

      Much of the Federal Rules of Evidence is devoted to protecting parties from the introduction of unfairly prejudicial evidence. Understanding these protections underscores both the oddity of Rule 609(a)(2)'s outlier status and the oddity of the justification for abrogating the restrictions that ordinarily curb the risk of unfair prejudice.

      The basic condition for a piece of evidence to be admitted is that it be relevant. (14) This condition is enormously forgiving. (15) A piece of evidence is relevant if it would make even the smallest incremental difference in establishing the point for which it is offered. (16) But this loose standard of relevance is counterbalanced by Rule 403, which bars otherwise admissible evidence when "its probative value is substantially outweighed by a danger of ... unfair prejudice." (17) Rule 403's limits are then extended by additional restrictions in the remainder of the Rules. (18)

      Among the most important of these restrictions is Rule 404's presumptive prohibition of character evidence, (19) which is defined as evidence to prove "that on a particular occasion [a] person acted in accordance with [a] character or trait." (20) Rules 607-609 carve out a series of exceptions to this ban, (21) allowing evidence to prove a witness's character for truthfulness. (22)

      Rule 609 governs the admissibility of a particular kind of impeaching character evidence--past convictions. Section (a)(1) applies only to past felony convictions, (23) conditioning their admission on a balancing of probative value and prejudicial effect. (24) Section (a)(2), however, is keyed to the type of crime for which the witness was previously convicted (25)--crimes of dishonesty, or crimen falsi (26)--and makes their admission mandatory. (27) Section (a)(2)'s standard of admissibility is thus directly tied to the category of crime that it names. (28) This makes Rule 609(a)(2) triply distinctive: it is one of the few rules exempted from the bar on character evidence, it is keyed to a particular category of past criminal offense, and it is the only Rule in the Federal Rules of Evidence that requires evidence to be admitted.

   2. Rule 609(a)(2)'s Theory of Character

      The Advisory Committee's justification for Rule 609(a)(2) assumes a particular thesis about the nature of character and how it predicts action: there are people who are intrinsically dishonest, their dishonesty is reliably indicated by a conviction for a crime of dishonesty, and having a character for dishonesty is uniquely predictive of a person's trustworthiness as a witness. This Section both shows that Rule 609(a)(2) relies on these assumptions and provides an overview of how the Advisory Committee justifies them.

      All of the impeachment rules share the assumption that people have stable and discernible character traits. (29) Rule 404's prohibition on character evidence is premised on the view that evidence as to a person's character is generally unduly prejudicial and not on the view that there is no such thing as a person's character. (30) Exceptions to the prohibition on character evidence also take this point for granted. Rule 404 presumes the existence of a "trait of peacefulness," (31) and Rule 405 describes the means by which character may generally be proven. (32) Because of the ban on character evidence in Rule 404, however, proof of character by...