An Empirical Study of Rule 609 and Suggestions for Practical Reform

Boston College Law Review, Mar 2018

Rule 609 of the Federal Rules of Evidence allows a party to impeach a witness with his or her prior criminal convictions. It is fair to say that this rule is the most criticized of all the Rules of Evidence; scholars have been calling for its reform or outright abolition for decades. These critics argue that the rule relies on propensity evidence, which has very little probative value in evaluating a witness’s truthfulness on the stand, and that—especially when used to impeach a criminal defendant—the evidence carries a high risk of unfair prejudice and often prevents defendants from testifying at trial. What has been missing from the debate so far is what is actually happening when judges apply Rule 609 in the courtroom. This Article conducts an empirical study of Rule 609 to determine how the rule operates in practice. First, the Article presents a historical background of Rule 609 and evaluates some of the common criticisms of the rule. Next, the Article presents the results of a survey of law students and federal district court judges to determine how much probative value and unfair prejudice each group perceives for different types of prior convictions. The survey finds some differences between the groups, but overall notes a surprising consensus that crimes of theft have a high probative value for proving lack of credibility, whereas other types of convictions do not. The Article then examines how federal district court judges actually apply Rule 609 in the courtroom. Contrary to conventional wisdom, it shows that federal judges do not routinely admit prior convictions to impeach criminal defendants, and that (consistent with the survey) judges tend to admit theft crimes more often than almost any other type of conviction. The review of district court decisions does indicate some extreme outliers and an unexplained and troubling tendency to admit crimes of drug possession. The Article then proposes a modest reform to Rule 609, which encourages the admission of theft crimes to impeach witnesses, but precludes the use of other types of criminal convictions as impeachment evidence.

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An Empirical Study of Rule 609 and Suggestions for Practical Reform

An Empirical Study of Rule 609 and Suggestions for Practical Reform Ric Simmons 0 1 2 0 Thi s Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact 1 Ric Simmons, An Empirical Study of Rule 609 and Suggestions for Practical Reform , 59 B.C.L. Rev. 993, 2 Th e Ohio State University Moritz College of Law , USA Part of the Criminal Law Commons; Criminal Procedure Commons; and the Evidence Commons RIC SIMMONS* Abstract: Rule 609 of the Federal Rulesof Evidence allows a party tomipeach a witness with his or her prior criminal convictions. It is fair to say that this rule is the most criticized of all the Rules of Evidence; scholars have been calling for its reform or outright abolition for decades. These critics argue that the rule relies on propensity evidence, which has very little probative value in evaluating a witness’s truthfulness on the stand, and t—haetspecially when used to impeach a criminal defendant—the evidence carries a high risk of unfair prejudice and often prevents defendants from testifying at trial. What has been missing from the debate so far is what is actually happening when judges apply Rule 609 in the courtroom. ThisArticle conducts an empirical study of Rule 609 to determine how the rule operates in practice. First, theArticle presents a historical background of Rule 609 and evaluates some of the common criticisms of the rule. Next, the Article presents the results of a survey of law students and federal district court judges to determine how much probative value and unfair prejudice each group perceives for different types of prior convictions. The survey finds some differences between the groups, but ovreall notes a surprising consensus that crimes of theft have a high probative value for proving lack of credibility, whereas othre types of convictions do not. The Article then examines how federal district court judges actually apply Rule 609 in the courtroom. Contrary to conventional wisdom, it shows that federal judges do not routinely admit prior convictions to impeach criminal defendants, and that (consistent with the survey) judges tend to admit theft crimes more often than almost any other type of conviction. The review of district court decisions does indicate some extreme outliers and an unexplained and troubling tendency toadmit crimes of drug possession.The Article then proposes a modest reform to Rule609, which encourages the admission of theft crimes to impeach witnesses, but precludes the use of other types of criminal convictions as impeachment evidence. © Ric Simmons, 2018. All rights reserved. * Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law, Michael E. Moritz College of Law, The Ohio State University. I would like thank Angela Lloyd, Anna Roberts, Daniel McConkle, and the participants of the 2017 CrimFest conference for their helpful suggestions and feedback. I would also like to thank Tresha Patel, Kelsey Kornblut, and Melissa Lenz for their excellent research assistance on this Article. INTRODUCTION Rule 609 is perhaps the most maligned of any Federal Rule of Evidence. For decades, scholars have consistently argued for its reform or oturight abolition.1 Specifically, the critics have targeted the application of Rule 609 to criminal defendants; that is, the practice of impeaching a criminal defendant with a prior conviction2. The critics argue that prior convictions have very little probative value to prove dishonesty on the stand; they may not be reliable indicators of actual criminal activity; the threat of their admission deters defendants from exercising their constitutional right to testify; and they carry a significant danger of unfair prejudice, because a 1 The scholarly critiques of Rule 609 are too numerous to list infull here. Some of them even pre-date the rule itself. See, e.g., Richard Friedman, Character Impeachment Evidence: PsychoBayesian [!?] Analysis and a Proposed Overhaul, 38 UCLA L. REV. 637 (1991) (proposing abolition of Rule 609 and reform ofRule 608 to never allow any character evidence to impeach criminal defendants); Leslie Alan Glick, Impeachment by Prior Convictions: A Critique of Rule 6-09 of the Proposed Rules of Evidence for U.S. District Courts, 6 CRIM. L. BULL. 330 (1970) (discussing the legal questions and implications of Rule 609, whether it is consistent witchase law, and the fundamental policy questions involved with Rule 609 prior to its adoption); Alan D. Hornstein, Between Rock and a Hard Place: The Right to Testify and Impeachment by Prior Conviction, 42 VILL. L. REV. 1 (1997) (arguing that prior convictions should never be allowed to impeach criminal defendants); Gene R. Nichol, Jr., Prior Crime Impeachment of Criminal Defendants: A Constitutional Analysis of Rule 609, 82 W. VA. L. REV. 391 (1980); Anna Roberts, Conviction by Prior Impeachment, 96 B.U. L. REV. 1977 (2016) [hereinafter Roberts, Conviction] (reviewing multiple reasons why Rule 609 is flawed and should be abolished); Anna Roberts, Impeachment by Unreliable Conviction, 55 B.C. L. REV. 563 (2014) [hereinafter Roberts,Unreliable Conviction] (discussing the extent to which convictions are reliable indicators of relative culpability); Anna Roberts, Reclaiming the Importance of the Defendant’s Testimony: Prior Conviction Impeachment and the Fight Against Implicit Stereotyping, 83U. CHI. L. REV. 835 (2016) [hereinafter Roberts, Implicit Stereotyping] (arguing that Rule 609 keeps defendants off the witness stand, thus removing an opportunity to lessen the effects of jurors’ implicit bias against minority defendants); Robert G. Spector, Impeaching the Defendant by His Prior Convictions and the Proposed Federal Rules of Evidence: A Half Step Forward and Three Steps Backwar1d,LOY. U. CHI. L.J. 247 (1970) (arguing for the abolition of Rule 609 because impeachment by prior conviction has little relevancy, produces a “chilling effect” on criminal defendants, and creates an “associational effect” with witnesses testifying on the defendant’s behal[fh)ereinafter Spector, Impeaching the Defendant]; Robert G. Spector, Commentary, Rule 609: A Last Plea for Its Withdrawal, 32 OKLA. L. REV. 334 (1979) [hereinafter Spector, Rule 609]. But see generally Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rul6e09, 15 CARDOZO L. REV. 2295 (1994) (arguing that the primary problem with Rule 609 is that judges do not properly apply its balancing test and too often admit prior convictions against defendants). 2 Most instances of impeaching a criminal defendant with a prior conviction are covered by Rule 609(a)(1)(B), but criminal defendants can also be impeached under Rule 609(a)(2) if the prior conviction was a crime of falsity. Because many of the reform proposals argue for abolishing the practice of impeaching acriminal defendant with any prior conviction, I will use the term “applying Rule 609 to a criminal defendant” rather than simply referring to Rule 609(a)(1)(B). jury will tend to ignore the limiting instruction and use the prior convictions as evidence that the defendant has a propensity to commit a crime.3 And yet the rule endures, at least on the federal leve4l.Indeed, on the state level there is a trend toward liberalizing the rules on impeaching with prior convictions.5 Critics of the rule have offered a number of reasons, some of them somewhat sinister, for why the rule persis6tsO. thers argue that the politicians and policymakers who maintain the rule are acting in good faith, but that they have a wildly inaccurate understanding of the porbative value and unfair prejudice of this type of evidence.7 But there is another possible explanation for the continued perserv-e ance of Rule 609: the critics may have it wrong, and the policymakers who drafted the rule may have been right all along. After all, in most cases Rule 3 See Friedman, supra note 1, at 678–80 (concluding that character impeachment evidence has no probative value for credibility and is highly prejudicial); Hornstein,supra note 1, at 9–20, 40–55 (arguing that prior convictions have little probative value and impeachment by prior conviction burdens the defendant’s constitutional right to testify); Roberts,Conviction, supra note 1, at 1992–2001 (addressing the flawed assumptions of Rule 609;)Roberts, Unreliable Conviction, supra note 1, at 579–92 (discussing the unreliability of prior convictions as indicators of relative culpability). 4 For an excellent discussion of successful efforts to abolish the application of Rule 609 to criminal defendants on the state level,see Roberts, Conviction, supra note 1, at 2018–36. There have been two substantive amendmentsto Rule 609 on the federal level, but neither one changed the balancing test for admitting prior convictions against criminal defendantsS. ee FED. R. EVID. 609 advisory committee’s notes. 5 See Roberts, Conviction, supra note 1, at 1990 (citing Dannye R. Holley, Judicial Anarchy: The Admission of Convictions to Impeach: State Supreme Courts’ Interpretive Standard,s1990– 2004, 2007 MICH. ST. L. REV. 307, 315. 6 Some proposed reasons why Rule 609 has escaped reform efforts: actors in the criminal justice system secretly want jurors making decisions based on criminal propensity evidence; they are further concerned that any reform of the rule would open up deeper, darker questions about the legitimacy of the convictions themselves; and they are more than happy to deter defendants from testifying, because this will improve conviction rates and reduce the ability of a juror to empathize with the defendant. See id. at 2015–17. 7 The legislative history surrounding Rule 609 implies that the members of Congress who supported the rule honestly believed that a defendant’s prior convictions were relevant to a jury in determining the party’s credibility. See, e.g., 120 CONG. REC. 37,076 (1974) (statement of Senator McClellan in arguing that Rule 609 should automatically admit all prior felony convictions to impeach criminal defendants): Can it really be argued that the fact that a person has committed a serious crim—ea felony—has no bearing on whether he would be willing to lie to a jury? Should a jury be denied that right [to hear the evidence]? Should society be denied the opportunity, in trying to protect itself, in its effort to discover the truth, to show that the witness before it is a man who has committed such a crime and, therefore, might be willing to now lie to a jury? Id. 609 does not require a judge to admit these prior conviction8s;it merely allows the judge to admit the evidence if she determines that the probative value of the evidence to impeach the defendant outweighs alul nfair prejudice. And after applying this balancing test, judges often admit these prior convictions, though not nearly as often as critics imp.l9yThis means that judges frequently believe that these prior convictions are useful to a jury in evaluating a defendant’s credibility—so useful, in fact, that their usefulness outweighs their rather substantial unfair prejudice.10 It could be true, of course, that these judges are misguide—dthat they are miscalculating the probative value or the unfair prejudice of thisi- ev dence, either for illegitimate reasons or simply because of an honest misunderstanding of how useful the evidence is and/or how much it may unfairly impact the jury.11 To help determine what is really going on when judges make their Rule 609 detemr inations, this Article presents the results of a survey that was given to federal trial judges to see how they measured the probative value and unfair prejudice of various prior convictions. The same survey was given to a number of second-year law students, to see what differences there might be between the opinions of those who had been appyling the rule for decades and those who had just been exposed to the rul1e2. Perhaps unsurprisingly, the judges are far more likely to admit prior convictions under this rule, but even the students (who show great skepticism about the rule in general) are willing admit to prior convictions for certain types of crimes.13 Thus, among the experts and the novices alike, there is a consensus that an outright ban on this evidence is inappropriate; that in at least some circumstances, admitting a prior conviction to impeach a crimi8 Rule 609(a)(2) requires admission of prior convictions that are crimes of falsity, if the conviction is less than ten years old. FED. R. EVID. 609(a)(2). As explained below, this Article focuses on Rule 609(a)(1)(B), which covers the admissibility of convictions that are not crimes of falsity when offered to impeach a criminal defendant. Id. R. 609(a)(1)(B). 9 As noted in Part III, federal judges admit prior convictions only about two-thirds of the time, and they allow the jury to hear the name of the crime only about half of the timeS.ee infra notes 152–164 and accompanying text (analyzing the admission of prior conviction evidence for impeachment of criminal defendants in 120 federal district court cases). 10 Unsurprisingly, courts that allow prior convictions to be admitted to impeach criminal defendants routinely mention the probative value of this evidence to prove lack of credibility.See, e.g., Walden v. GeorgiaP-ac. Corp., 126 F.3d 506, 523 (3d Cir. 1997) (quoting Cummings v. Malone, 995 F.2d 817, 826 (8th Cir. 1993) (“[O]ne who has transgressed society’s norms by committing a felony is less likely than most to be deterred from lying under oath.”)). 11 See supra note 6 (discussing possible reasons the criminal justice system resists reform efforts to Rule 609). 12 See infra notes 130–135 and accompanying text (describing the process for conducting the survey). 13 See infra notes 136–138 and accompanying text (analyzing the results of the conducted survey). nal defendant does more good than harm.14 Of course, all of the judges and the law students could simply be wrong—perhaps they all miscalculate the probative value and/or the unfair prejudice of this type of evidence. But the breadth and the strength of this consensus should at least give the Rule 609 reformers pause before they call for the outright abolition of this rule1.5 Instead, a more modest reform of Rule 609 may be in order, perhaps one that enhances the balancing test, or that specifies which types of crimes may be used to impeach.16 In addition to the survey results, thAerticle examines what federal judges do in the courtroom when faced with applying Rule 609 to criminal defendants. The Article analyzes over 120 federal district court cases in which the prosecutor sought to admit a prior conviction to impeach the defendant.17 The results of this analysis are broadly consistent with our r-su vey: judges almost routinely admittedevidence of certain types of crimes, whereas evidence of other types of crimes was not usually admitted (or at least the jury was not told the name of the crime for whicha conviction occurred).18 Studying the application of Rule 609 also has broader implications for evidence law. Balancing test—sparticularly those that balance probative value and unfair prejudice—are extremely common in deciding whether to admit evidence,19 and judges are given vast amounts of discretionin applying those balancing tests.20 But in most circumstances,their decisions are very fact-specific; the unfair prejudice and probative value of a graphic photograph or of a prior bad act offered to prove knowledge will vary depending on the facts of the case and the details of the proffered evidence. Thus, it is very difficult to conduct any systematic study about how judges apply a Rule 40-3type balancing test in most cases. In contrast, we can study Rule 609’s balancing test in a much more objective way: assuming the prior conviction is for a type of crime that is completely dissimilar from 14 See infra Part II.B and accompanying text. 15 See generally, e.g., Spector, Rule 609, supra note 1 (arguing for the abolition of Rule 609). 16 Another possibility would be to codify all or part of the fivef-actor test that is used in various forms by the circuit courts when applying Rule 609’s balancing test to criminal defendants. See, e.g., United States v. Hernandez, 106 F.3d 737, 739–40 (7tChir. 1997) (restating the fivefactor test first enumerated in United States v. Mahone, 537 F.2d 922 (7th Cir. 1976)). 17 See infra notes 152–164 and accompanying text (discussing the results from an analysis of federal district court cases applying Rule 609). 18 See infra notes 152–164 and accompanying text. 19 Indeed, Rule 403, which bars evidence ifthe unfair prejudice substantially outweighs its probative value, applies to nearly every evidentiary ruling made by a trial judge. See FED. R. EVID. 403. 20 See, e.g., Gold, supra note 1, at 2321–27 (arguing that, with respect to Rule 609, the problem rests with the discretion granted to judges in applying the rule). the crime for which the defendant is now on trial2,1 the probative value for impeachment purposes and unfair prejudice of the evidence should remain relatively constant for any trial.22 Thus, it is possible to ask judges, lawyers, or even lay peopleto determine the degree ofprobative value and unfair prejudice for every type of criminal conviction, anmdake objective decisions as to which prior convictions should be admitted and which should not. This microcosm can give us insight into how judges apply—or should apply—balancing tests in many other contexts, by seeing how judges measure probative value and unfair prejudice. Furthermore, we masyee differences between the decontextualized survey results and the actual results at trial, where a judg’es decision may be improperly influenced by implicit bias, the strength of the prosecutor’s case, or any other legally irrelevant factors. Part I of the Article reviews the history of Rule 609, and then critically examines the four main critiques of applying the rule to criminal defendants.23 Part II describes the survey and then presents and analyzes thee- r sults.24 Part III compares the results of the survey with how trial judges are actually deciding Rule 609 motions.25 Part IV of this Article proposes some modest changes to Rule 609 in response to this research.26 I. RULE 609 A. History of the Rule Historically, under the common law, a prior criminal covniction could preclude a witness from testifying altogeth2e7r.By the time the Federal 21 If the prior conviction is for a crime that is similar to the crime for which the defendant is now on trial, the likelihood of unfair prejudice increases substantially, as there is a greater danger that the jury will use the prior crime for an illegitimate propensity purposeS.ee, e.g., Hernandez, 106 F.3d at 740 (“The court was well aware that there was a similarity between the two crimes, a factor that requires caution on the part of the district court to avoid the possibility of the jury’s inferring guilt on a ground not permissible under Rule 404(b).”). 22 Of course, the probative value and unfair prejudice of a given prior conviction cannot be held completely constant in real-life cases; for example, juries in certain parts of thecountry may see gun possession crimes as more or less prejudicial, depending on the local cultural attitudes towards guns. And the trial judge is also supposed to consider the “importance of the defendant’s testimony” in the case, which may vary depending on the crime for which he is being charged and his theory of defense. See id. 23 See infra notes 27–129 and accompanying text. 24 See infra notes 130–151 and accompanying text. 25 See infra notes 152–164 and accompanying text. 26 See infra notes 165–180 and accompanying text. 27 See Jeffrey Bellin, Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS L. REV. 289, 296 (2008); Christian A. Bourgeacq, Note,Impeachment with Prior Convictions Under Federal Rule of EviRules of Evidence were codified, almost all American jurisdictions had abolished this absolute bar2,8 but all still allowed prior convictions to impeach a witness, under the theory that “[t]here is little dissent from the general proposition that at least some crimes are relevant to credibility2.”9 The Advisory Committee’s original version of Rule 609 automatically admitted all felony convictions as well as all crimes of falsity, with no discretion gvien to the trial judge.30 When a subcommittee of the House Judiciary Committee considered the Rules of Evidence, many of the witnesses argued that the trial judge should have discretion to preclude prior convictions if the unfair prejudice of the evidence substantially outweighed its probative vlaue.31 The subcommittee added this balancing te—st essentially stating that Rule 403 should apply to prior conviction impeachment evidenc—efor felony convictions that were not crimes of falsit3y2. The full Judiciary Committee went even further and precluded all convictions that were not crimes of falsity, and, after an extensive floor debate, this version passinedthe House.33 The Senate passed a version of Rule 609 that was similar to the Advisory Committee’s initial version, automatically admitting all felonies and prior crimes of falsity.34 The Conference Committee thus created a compromise between the two bills: automatically admitting all crimes of falsity but applying a revised Rule 403 balancing test to other felonies, which would only be admitted if the probative value of the evidence outweighed itsn-u fair prejudice.35 dence 609(a)(1): A Plea for Balance, 63WASH. U. L.Q. 469, 470 (1985) (citing C. MCCORMICK, MCCORMICK ON EVIDENCE 93 (3d ed. 1984)). This prohibition was erased gradually over the end of the 19th Century and the beginning of the20th Century as statutes were passed that permitted people with felony convictions to testify.See Montgomery v. United States, 403 F.2d 605, 611 (8th Cir. 1968) (discussing the common law prohibition on individuals testifying if they had a criminal record and its abolition in the United States during the nineteenth century). 28 FED. R. EVID. 601 advisory committee’s note. The blanket ban on felons testifying as wt-i nesses was removed from all state laws by 1953. 3 JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 601 app. at 01 (Mark S. Brodin & Joseph M. McLaughlin eds., 2d ed. 2016). 29 FED. R. EVID. 609 advisory committee’s note. 30 See Gold, supra note 1, at 2298–301 (discussing the history of Rule 609(a)). The Advisory Committee briefly changed its mind and added a Rule 403 balancing test to thruele, but subsequently changed it back before submitting the Rules of Evidence to Congress in 1972. Id. 31 Id. at 2301. 32 Id. at 2301–02. 33 Id. at 2303 & nn.45–46. Professor Goldnotes that the debate on Rule 609 “far exceeded that relating to any other provision in all the proposed Federal Rules of Evidence.” Id. at 2303. 34 Id. at 2305–07 & nn.57–60. 35 Id. at 2307–08. The Advisory Committee substantively amended Rule 609 in 1990 and 2006.36 The 1990 amendment relaxed the balancing test for criminal convictions used to impeach any witnessother than a criminal defendant; such a conviction would now be admissible unless the opposing party could demonstrate that its unfair prejudice substantially outweighed its probative value.37 Admitting a prior conviction to impeach a defendant, however, still faced the same strict balancing test: a judge is only permitted to admit such a conviction if the prosecutor could demonstrate that the probative valuteo impeach outweighs its unfair prejudice38. The Advisory Committee left this balancing test in place because: [T]he rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudi—ce i.e., the danger that convictions that would be excluded under Federal Rule of Evidence 404 will be misused by a jury as propensity evidencee-d spite their introduction solely for impeachment purposes.39 The 2006 amendment limited the number of crimes that would be automatically admissible as “crimes of falsity.”40 The history of Rule 609 suggests a compromise between those who believe that prior convictions shouldnever be admitted to impeach criminal defendants and those who argue that prior convictions shouldautomatically be admitted to impeach.41 It also shows that the drafters of the rule were aware of the unique danger that criminal defendants faced if their prior convictions were admitted against them by creating an unusually high barrier to admissibility in such circumstances.42 The unfair prejudice of prior convci36 Like nearly every other Federal Rule of Evidence, Rule 609 was also amended in 2011 as part of the Restyling project, but no substantive changes were made.See FED. R. EVID. 609 advisory committee’s notes. 37 Id. 38 See FED. R. EVID. 609(b)(1). 39 Id. R. 609 advisory committee’s note to 1990 amendmentT.he 1990 amendment also allowed a party to “remove the sting” by eliciting evidence of the witnsespsr’ior conviction on direct examination, rather than waiting for the opposing party to confront the witneosns crossexamination. Id. 40 See id. advisory committee’s note to 2006 amendment.After 2006, only convictions that included a false statement or false action as an element of the crime would be classified as a crime of falsity. Id. 41 See Gold, supra note 1, at 2298–309 (recounting the history of Rule 609 and its adoption;) Hornstein, supra note 1, at 6–8 (discussing the debate surrounding the adoption of Rule 609). 42 See FED. R. EVID. 609 advisory committee’s note; Gold, supra note 1, at 2298–309; Hornstein, supra note 1, at 6–8. The standard balancing test for admissibility, found in Rule 403, strongly favors admissibility: the party opposing the evidence must prove to the judge that the danger of unfair prejudice substantially outweighs its probative value. There are only three provition evidence is already much higher for criminal defendants;43 thus, even if the standard Rule 403 balancing test applied in this context (as it does for impeaching any other witness with a prior conviction), very few of these prior convictions would be admitted. The fact that the burden shifts to the prosecutor to prove a greater probative value than unfair prejudice means that only the most probative of these prior convictions should be admitted.44 As we will see from the survey below, most judges follow this principle in the decontextualized setting of the survey, though they seem willing to damit a somewhat wider variety of crimes in the courtroom setting45. And as will always be true with a rule involving judicial discretion, there are judges who are outliers on either side. B. Critiques of the Rule As noted above, there is no shortage of articles advocating reform or repeal of Rule 609.46 Most of these critiques (and the focus of thisArticle) have to do with a very specific provision of Rule 609: impeaching a cri minal defendant with a prior conviction.47 But any evaluation of this aspect of the rule must also consider the entire infrastructure of impeachment with prior dishonest actions, including both how Rule 609 should apply to tw- i nesses who are not criminal defendants as well as how Rule 608 regulates the admissibility of actions that are not criminal convictio4n8s.Thus, any proposed reforms to how Rule 609 applies to criminal defendant—sas well as any arguments for those reforms—must take into account how those ersions in the Rules that apply a different (and stricter) balancing test: Rule 609(a)(1)(B), when a prosecutor attempts to admit a prior conviction to impeach a criminal defendant; Rule 703, when an expert is asked to reveal her (otherwise inadmissible) underlying data; and Rule 609(b), when a party seeks to impeach with a prior conviction that is over ten years old. 43 See infra notes 99–129 and accompanying text (arguing that the danger of jurors improperly using prior conviction evidence as propensity evidence is heightened for criminal defendants). 44 See FED. R. EVID. 609 advisory committee’s note to 1990amendment (“Although the rule does not forbid all use of convictions to impeach a defendant, it requires that the government show that the probative value of convictions as impeachment evidence outweighs their prejudicial effect.”). 45 Compare infra notes 136–138 (discussing the results of the survey),with infra notes 141– 151 (discussing the results of the analysis of the federal district court cases). 46 See supra note 1 (presenting a list of critics of Rule 609). 47 See, e.g., Hornstein, supra note 1, at 55–61 (arguing that Rule 609 may unconstitutionally burden a criminal defendant’s right to testify); SpectorI,mpeaching the Defendant, supra note 1, at 247–51 (arguing that impeaching a criminal defendant with felonies has little relevancy, produces a “chilling effect,” and produces an “associational effect”). This mostly includResule 609(a)(1)(B), which covers impeaching a criminal defendant with felonies that are not crimes of falsity, but would also include Rule 609(a)(2), which covers impeachingany witness (including a criminal defendant) with a crime of falsity. See FED. R. EVID. 609. 48 See FED. R. EVID. 608–609. forms and arguments would affect the rest of the impeachment provisions in Rules 608 and 609. The arguments against the use of prior convictions to impeach can be roughly broken down into four categories. Some of these arguments are specific to the practice of admitting prior convictions evidence against criminal defendants; others are broader attacks on admitting prior convoicntsi against any witness; some are so broad that they argue against admitting any prior dishonest action to impeach any witness.49 The four categories are as follows: (1) Prior convictions have little or no probative value regarding credibility; (2) Admitting prior convictions infringes on the defendant’s right to testify; (3) Some of these convictions are unreliable (i.e., the defendant may not have actually been guilty of the crime); and (4) Jurors will use the prior convictions for an improper purpose.50 This Article will consider each of these criticisms in turn. 1. Probative Value of Prior Convictions for Determining Credibility This critique appears in many different forms. The “strong” version of this argument claims that there is no probative value whatsoever in admitting any prior conviction5s1. Most lay peopl—eand certainly almost all 49 See Roberts, Conviction, supra note 1, at 1992–2004 (discussing the underlying, flawed assumptions of Rule 609);Roberts, Unreliable Conviction, supra note 1, at 574–79 (discussing common criticisms of Rule 609). 50 Professor Anna Roberts has proposed another category of critiques regarding Rule 609: that when it is used against criminal defendants, it contributes to a “broader dysfunction” in the criminal justice system. She gives a number of examples: it discourages criminal defendants from taking the witness stand; it may contribute to wrongful convictions; it is a “hidden” collateral conesquence of a criminal conviction; it exacerbates the racial disparities in the criminal justice system; it gives even more power to prosecutors; and it influences more defendants to plea bargain their cases. Roberts, Conviction, supra note 1, at 2004–14. I address thefirst of these critiques infra notes 76–84 and accompanying text. Some of the other critiques include normative assumptions— for example, a presumption that it is detrimental to give prosecutors more power, or that it is detrimental to the system to have more plea bargains—that are beyond the scope of this paper. 51 Critics of Rule 609 point out that the rule relies on a long chain of assumptions and inferences: (1) there is such a thing as “character for truthfulness”; (2) knowing a witness’s character for truthfulness is useful to jurors in evaluating the witness’ credibility; (3a) witness’s character for truthfulness can be determined by learning about the witness’s prior dishonest actions; (a4) witness’s character for truthfulness can be determined by learning about the witness’s prior convictions; and (5) jurors are able (with the help of a limiting instruction) to use this evidence appropriately to evaluate a witness’s credibility. See Robert D. Dodson, What Went Wrong with Federal judges—would reject this absolutist argument. Surely some criminal nc-o victions—such as crimes of falsity—are relevant in determining whether a witness is currently telling the truth. As an extreme example, if the jury hears from two witnesses, and one has never been convicted of any crime, whereas the other has been convicted of perjury three times in the past five years, it would be reasonable for a juror to find the mfoerr more credible than the latter. But most critics of Rule 609 do not make such an extreme argument. Instead, they argue that the probative value of prior convictions is very low, such that it will almost always be outweighed by the unfairly prejudicial effect that they will have on the jury (as described by the fourth objection in Section 4 below).52 Professor Anna Roberts, who has written extensively on this issue, argues that the justifications given by the defenders of Rule 609 “rest not on data but onwhat one might call ‘junk science at its worst.’5”3 She notes that the probative value of a prior conviction rests on a number of questionable presumptions: (1) The defendant committed the crime in question; (2) Those without such a conviction didnot commit the crime in question; (3) The conviction can be related to a particular character trait; (4) The defendant still possesses that trait just as he had it then; (5) The trait helps predict the likelihood that the defendant will lie while on the stand; and (6) The jury will be able to use this evidence to help them assess this likelihood.54 Rule of Evidence 609: A Look at How Jurors Really Misuse Prior Conviction Ev,id4e8nce DRAKE L. REV. 1, 31–32 (1999); Roberts, Conviction, supra note 1, at 1992–93. As one commentator noted (though with a slightly different chain of inferences): The probativity of the evidence of the prior conviction canbe no stronger than the weakest link in that inferential chain. Indeed, the probative value of the evidence of prior conviction is the product of the probabilities of each inference necessary to support the conclusion, and that product is perforce lower than the lowest probabl-i ity of each of the several inferences to be drawn. Hornstein, supra note 1, at 14 (citing Richard O. Lempert, Modeling Relevance, 75 MICH. L. REV. 1021 (1977)). 52 See Hornstein, supra note 1, at 15–19 (discussing the marginal probative argument against prior conviction impeachment evidence);Spector, Impeaching the Defendan,t supra note 1, at 249. 2018] Professor Roberts attacks all of these presumptions and points out that the conclusion from a chain of inferences is suspect or invalid if only one of those inferences is faulty.55 But most of these presumptions are in fact quite reasonable. The correlation between conviction of a crime and actual guilt for that crime is very high—at least 96%.56 The second presumption is true for any impeachment evidence given to a jury. For example, in a given trial, both witness A and witness B may have made multiple prior inconsistent statements, but the opposing counsel is only aware of those made by tW-i ness A. Should the judge bar the attorney from impeaching Witness A with the prior inconsistent statements, simply because there is a chancethat Witness B also has made undiscovered prior inconsistent statements? The fourth presumption—whether there are fixed traits (such as “propensity to lie”) that can be assigned to witnesse—schallenges not just Rule 609 but a large subset of evidentiary rules, such as Rule 608 and Rule 404(a5)7. And to the extent that fixed traits may diminish with time, Rule 609’s balancing test already takes this into account;58 the older the conviction, the less likely a judge will admit it, and if the conviction is over ten years old, it faces a very strong presumption against admissibility.59 The third, fifth, and sixth presumptions all focus on the probative value of the prior conviction to prove lack of credibility, which almost certainly varies depending on the crime. Some scholars believe that any prior conviction, regardless of the type of crime, indicates little or nothing abotua defendant’s likelihood to lie on the stand.60 These critics point out that the entire logic of the rule rests on a propensity inference (that a person who committed a certain act in the past has a tendency to commit that act, and is therefore more likely to commit the act in the future) and propensity evidence is heavily disfavored in the law of evidence.61 But although propensi55 Id. at 1992–97 (critiquing the assumptions underlying the probative value of prior convcition impeachment evidence). 56 See infra notes 99–129 and accompanying text (discussing studies that conclude that there is a high correlation between prior conviction and guilt). 57 See FED. R. EVID. 404(a), 608. 58 See Hernandez, 106 F.3d at 739–40 (setting out five factors for determining whether a prior conviction is admissible against a criminal defendant under Rule 609(a)(1)(B), including the mti ing of the prior conviction). 59 See FED. R. EVID. 609(b)(1) (admitting convictions over ten years old only if the probative value for impeachment “substantially outweighs” the unfair prejudice). 60 See Glick, supra note 1, at 331–34 (arguing that there is no positive relationship between the defendant’s past conviction andhis present willingness to tell the truth); Spector,Impeaching the Defendant, supra note 1, at 249–50 (concluding that there is no logical connection between a defendant’s past conviction and his willingness to tell the truth when testifying). 61 See, e.g., FED. R. EVID. 404(a) (barring almost any use of propensityevidence if offered to prove actions in accordance with that propensity). ty evidence is disfavored, it is notbanned; we allow defendants to admit propensity evidence if they wish (and we allow prosecutors to respond); we also allow both parties to admit evidence of prior dishonest conduct to show that a witness has a propensity to li6e2. Thus, the drafters of the Rules of Evidence acknowledge that propensity evidence has some probativel-va ue.63 As we will see below,64 a majority of law students and federal judges agree that at least some categories of criminal convictions (such as theft crimes) have a probative value to prove propensity to lie, and are thus uesful to prove lack of credibility on the stand. A more sophisticated version of the argument attacking thperobative value of prior convictions emphasizes themarginal probative value of a criminal defendant’s prior conviction65. This tactical shift from absolute probative value to marginal probative value is far more powerful if the wtiness is a party to the case, and even more powerful if the witness is a criminal defendant.66 In those scenarios, the jurors will already be aware that the witness has a strong motivation to lie, so that their learning abtoau prior criminal conviction will do very little to affect their judgment about the witness’s credibility. Professor Richard Friedman imagines a juror having the following absurd internal dialogue: “At first I thought it was veryn-u likely that, if Defoe committed robbery, he would be willing to lie about it. But now that I know he committed forgery a year before, that possibility seems substantially more likely.”67 The strength of this critique rests at least in part on the typ—e and the number—of prior criminal convictions that are availablefor impeachment purposes. Here, it is important to consider Rule 609 not just in isolation, but as part of the entire impeachment-by-character regime that is created by the Rules of Evidence. We allow all witnesses to bimepeached by character 62 Id. 63 See id. R. 404 advisory committee’s note (discussing the rationale for admission of character evidence). 64 See infra notes 136–151 and accompanying text (analyzing the data gained froma survey of federal district court cases). 65 See, e.g., Hornstein, supra note 1, at 18 (“The question we must ask about the probative value of prior convictions, then, is how much such evidence adds to our assessment of credibility in light of the defendant/witness’s strong interest in the outcome.”); RobertCs,onviction, supra note 1, at 1997 (“[T]he jury already has every reason to suspect that a defendant faced with the loss of liberty and perhaps life might shape his or her testimony in order to maximize the possibliity of acquittal.”). 66 See Hornstein, supra note 1, at 15–19 (discussing the marginal probative value argument). 67 Friedman, supra note 1, at 664. Professor Friedman uses a Bayesian analysis to argue that the marginal probative value of prior convictions to impeach criminal defendants is extremely small. See id. at 655–70 (applying a Bayesian analysis to character impeachment of criminal defendants). witnesses who testify that the witness has a propensity to be untruth6f8ul. And we allow all witnesses to be cross-examined with prior dishonestc-a tions, as long as the probative value for impeachment is not substantially outweighed by the unfair prejudice.69 If we accept the premise behind Rule 608, it would be odd to reject Rule 609 for all criminal convictions, because in some cases, the underlying conduct that supported the criminal concv-i tion would be admissible under Rule 608. Certainly this is true for “crimes of falsity,” which are automatically admissible under Rule 60970 and would almost surely pass a Rule 403 balancing test if offered under Rule 67018. But it is also true for many crimes that do not meet Rule 609’s narrow deifnition of crime of falsity, such as theft crime72s.For example, if a cros-s examining attorney has a good faith belief that the witness had stolen money from his employer, Rule 608(b) allows the attorney to ask the witness about the prior theft to prove to hte jury that the witness had committed a severely dishonest act in the past7.3 If the defendant had in fact beenconvicted of stealing money from his employer, the probative value increases, because we are more certain that the dishonest action occurred (instead of a “good faith basis,” we have a guilty plea or proof beyond a reasonable doubt).74 It is true that the unfair prejudice also increases, because every criminal conviction carries a stigma; we will consider this in subsection (B)(4) below.75 68 See FED. R. EVID. 608(a). 69 See id. R. 608(b). 70 See id. R. 609(a)(2). 71 Though even crimes of falsity would not be admissible under Rule 608 if the prior convcition were identical to the crime for which the defendant is now being charged. I discuss this problem in Part IV. See infra notes 165–180 and accompanying text. 72 See H.R. REP. NO. 93-1597, at 9 (1974) (Conf. Rep.) (“By the phrase ‘dishonesty and false statement’ the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature ofcrimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.”). 73 See FED. R. EVID. 608(b). 74 But see infra notes 85–98 and accompanying text (describing how some critics dispute the reliability of prior convictions). 75 See infra notes 99–129 and accompanying text (discussing the improper use of prior conviction evidence by jurors as character evidence). 2. Admitting Prior Convictions Infringes on the Defendant’s Right to Testify The Supreme Court has held that every criminal defendant has a right to testify in his or her own defense7.6 Furthermore, a defendant’s ability to testify can have serious practical implications for the outcome of the case. Studies have shown that many jurors disregard the standard instruction to draw no inference from the defendant’s failure to testify, instead associating the defendant’s silence with guilt7.7 Meanwhile, the threat of impeachment by prior conviction has been proven to dissuade some criminal defendants from testifying,78 and empirical evidence suggests that a jury is more likely to convict a defendant if the defendant does not testif7y9. Impeachment by prior conviction may also have played a significant role in the trials of those who have been wrongfully convicted.80 Furthermore, as Professor Roberts has noted, if a defendant is a mme ber of a minority group, many jurors will carry an implicit bias against the defendant.81 If the defendant chooses to testify, he can alleviate the power of that implicit bias, but if the possibility of impeachment by prior concv-i tion discourages him from testifying, the jury is more likely to evaluate the 76 See Rock v. Arkansas, 483 U.S. 44, 49 (1987)(“At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense.”). 77 See LEWIS MAYERS, SHALL WE AMEND THE FIFTH AMENDMENT? 21 (1959) (survey shows that 71% of respondents inferred guilt from a defendant’s refusal to testiJfoyh);n H. Blume, The Dilemma of the Criminal Defendant with a Prior Record—Lessons from the Wrongfully Convicted, 5 J. EMPIRICAL LEGAL STUD. 477, 478 & n.1 (2008) (citing a surveyfinding that approximately half of Americans believe that refusal to testify is an indicator of g)u;ilstee also Friedman, supra note 1, at 667 (jurors tend to ignore the judicial instruction not to infer guilt from silence because the instruction is “virtually incoherent”). 78 According to one study, 62% of defendants without criminal records testified, but only 45% of defendants with criminal records testified. Blume, supra note 77, at 490 n.49. 79 See Jeffrey Bellin, The Silence Penalty, 103 IOWA L. REV. 395, 413 (2018) (surveying four hundred mock jurors and finding that based on the same fact pattern, a defendant who testifie—s and is not impeached with any prior conviction—s is convicted 62% of the time, whereas a defendant who does not testify is convicted 76% of the time); Robert D. Okun, Character and Credibility: A Proposal to Realign Federal Rules of Evidence 608 and 609, 37 VILL. L. REV. 533, 554– 55 (1992) (discussing scientific studies that conclude a jury is more likely to convict a defendant who does not testify). 80 Blume, supra note 77, at 479 (“Virtually all of the [wrongfully convicted] defendants who did not testify had a prior record that likely would have been disclosed to the jury had they taken the stand.”). Professor Blume conducted an empirical study of 172 individuals who had been exonerated by the Innocence Project through the end of 2006. Id. at 488. He found that of the wrongfully convicted defendants, 91% of those who had criminal records waived their right to testify. Id. at 491. 81 See Roberts, Implicit Stereotyping, supra note 1, at 860–69 (discussing the implicit racial stereotypes that arise when minority defendants do not testify). defendant as a member of a (disfavored) group rather than as an indivui-d al.82 Thus, if a black or a Latino defendant is discouraged from testifying because of this rule, his decision could exacerbate pre-existing racial biases in our jury system. These critiques are powerful—but they rest entirely on the presupmtion that using prior convictions to impeach is improper in the first place. After all, there are many legitimate ways of impeaching a criminal defednant: showing that he is biased; confronting him with prior inconsistent statements; using negative character witnesses to provethat he is not credible; or even using cross-examination to expose his story as not credible and full of inconsistencies.83 The threat of any of these impeachment techniques could conceivably convince a defendant that he is better off not taking the stand, and in this way “infringe” on his right to testify8.4 Nobody would argue, however, that allowing any form of impeachment violates the defendant’s right to testify; surely the prosecutor has the right to conduct an efective cross-examination. Thus, this critique of Rule 609 is only persuasive if you have already established that admitting prior convictions to impeach is unfair to the defendant. In other words, if you have already established that Rule 609 evidence is of low probative value and/or allows substantial unfair prejudice, the argument that the rule discourages the defendant from testifying demonstrates that the damage done by the rule can be extensive. But the argument does not, on its own, prove that the rule should not exist. 3. Some of the Prior Convictions May Be Unreliable A number of critics of Rule 609 have attacked threule based on the theory that the prior conviction itself may have been inaccurate—that is, the defendant may have been wrongfully convicted of the prior crime, and thus providing the jury with this evidence may mislead the ju85ryT.he critics also argue that the disparity of resources between the prosecutor and the 82 See id. at 860–82 (discussing implicit stereotypes and proposing that courts focus on the Mahone factor of “importance of the defendant’s testimony” in order to preclude evidence of prior convictions and allow minority defendants to testify). 83 See Friedman, supra note 1, at 669 & n.80 (discussing other factors arising from impeachment evidence that may dissuade a defendant from testifying). 84 See id.; Nichol, supra note 1, at 400–05 (discussing the burden prior conviction impeachment evidence places on a defendant’s constitutional right to testify). 85 See Hornstein, supra note 1, at 9–12 (arguing that the prevalence of plea bargains and the coercive nature of many plea bargains means that often a conviction is not a reliable indicator that the defendant committed the crime); Roberts, Unreliable Conviction, supra note 1, 579–80 (arguing that courts should undertake investigations into the reliability of prior convictions prior to admitting them under Rule 609). defense attorney means that a criminal trial is frequently not a “fair fight.”86 Furthermore, they point out that most criminal convictions are the result of plea bargaining, in which the prosecutor wields an extraordinary amount of power and the defendant may be coerced into pleading guilty.87 There are three responses to this argument. First, it is again important to compare Rule 609 to Rule 608, which allows any witness tom-be i peached with any instance of prior dishonest conduct, as long as the attorney has a “good faith basis” that the witness committed the dishonest cnoduct.88 This is obviously a much lower standard of proof than what ies- r quired to obtain a criminal conviction, however flawed one may believe our criminal justice system to be. In the case of a prior conviction, we know that the witness either admitted to the action under oath during a plea allocution or he was found guilty beyond a reasonable doubt by a jury of his peers. Indeed, one of the reasons why criminal convictions are given their own rule separate and apart from Rule 608 is because—unlike a mildly substantiated allegation of dishonest conduct—we can be relatively certain that the witness committed the underlying criminal action.89 A second response is that the unreliable conviction argument is based on a very radical proposition that involves a sweepingand widespread indictment of our criminal justice system. Individuals are imprisoned, fined, 86 See Roberts, Unreliable Conviction, supra note 1, at 582. 87 Id. at 580–84 (concluding that it would be a “miracle” if the result of the plea-bargaining process was reliable). 88 See FED. R. EVID. 608(b). Professor Roberts further argues that some of these felony convictions are malum prohibitum rather than malum in se; thus, the individuals who are convicted of these crimes are not committing a moral wrong and the prior convictions have evenless probative value to prove lack of credibility.See Roberts, Unreliable Conviction, supra note 1, at 587–90. This is a good point, but it merely means that notall felonies should be admitted under Rule 609; in other words, judges should take the type of crime under consideration when using Rule 609’s balancing test. 89 One possible counterargument to this response is that Rule 609 evidence cairers with it a special (and perhaps inaccurate) veneer of reliability. In other words, when jurors hear about prior dishonest conduct under Rule 608(b), they will automatically (and correctly) discount the strength of the evidence because they know there is a chance that the prior dishonest conduct did not occur. In contrast, when jurors hear about a prior conviction under Rule 609, they incorrectly assume that it is certain that the defendant committed thecrime, and therefore fail to discount the evidenceto account for the possibility that the defendant may not, in fact, have committed ctrhimee. The strength of this critique rests on two factors. First, how reliable in fact are prior convictions—if the false conviction rate is really only around one or two percent, the difference between the jurors’ belief in the defendant’s guilt and the likelihood that he is actually guilty is negligiblSe.ee infra notes 95–98 and accompanying text (discussing how empirical evidence points to a high correlation between conviction and guilt). Second, how much do jurors in fact believe that a prior conviction means actual guilt? The high-profile cases involving exonerations have given many potential jurors a strong level of skepticism about the reliability of our criminal justice system; many potential jurors may incorrectly believe that the false conviction rate is in fact much higher than it is. and suffer the stigma of a criminal record based on a criminal conviction. If we do not believe criminal convictions are reliable, there are hundreds of other rules in the criminal justice system that need to be reformed to reflect that fact—from sentencing rules for recidivists to civil forfeiture laws to the imposition of dozens of different collateral consequences. And most importantly of all, we need to be fundamentally reforming the criminal justice system itself to lower the number of wrongful convictions.90 In other words, if criminal convictions are as unreliable as these critics contend, the application of Rule 609 to criminal defendants is the least of our concerns. The third response springs naturally from the previous response. Given the widespread acceptance—both within the criminal justice system and among the public at large—that a person convicted of a crime is almost certainly guilty of that crime, theburden of persuasion naturally rests on those who would argue against this proposition.91 To put it simply, the critics have failed to make their case. The critics present two primary arguments. First, they argue that the adversary system is unfair; the prosecutor has so many more resources and so much more power than the defendant that the defendant is at a disadvantage both at trial and during the plea bargaining stage.92 This argument fails to consider the significant procedural proc-te tions given to defendants, includingthe prosecutor’s need to prove guilt beyond a reasonable doubt; the defendant’s right—unique among all parties in the adversary system—to remain silent both before and during the trial; and discovery rules, which nearly always favor the defendant. At any rate, imbalances in resources on the one side or favorable procedural rules on the other side are only indirectly relevant to the actual question: how often is a defendant convicted of a felony that he in fact did not commit? Once again, the burden of proof should rest on those challenging the conventional wisdom on this question. The critics do indeed provide some empirical data, such as the increasing number of exonerations of those who had been found guilty, including those who have pledguilty.93 This is presented as evidence that “it cannot be taken as a given that a conviction cro90 See, e.g., Roberts, Unreliable Conviction, supra note 1, at 579–90 (discussing systemic issues with the criminal justice system that raise questions as to the reliability of convictions). 91 See infra notes 95–98 and accompanying text (discussing empirical evidence poinitng to a high correlation between conviction and guilt). 92 See Roberts, Unreliable Conviction, supra note 1, at 579–80 (discussing disparities in the judicial process and the lack of a fair fight between prosecutors and defense attorneys). 93 For example, Professor Roberts points out that as of 2014 theNational Registry of Exonerations contained 1,339 exonerees, approximately 10% of whom pled guilty. Roberts,Unreliable Conviction, supra note 1, at 584 (citingExonerations, NAT’L REGISTRY OF EXONERATIONS, http:// www.law.umich.edu/special/exoneration/Pages/detaillist.aspx [http://perma.cc/LHD2-ATRP]). For each of these crimes, the perceived probative value to proven-u truthful character is very similar between the two groups, but the unfair prejudice is significantly different, with judges believing the unfair effect on the jury is less than students believe. (Note that this is not true for all the crimes; the average unfair prejudice rating for all crimes for students was 56.2, whereas the average unfair prejudice rating for all crimes for judges was 53.5).146 Thus, for these specific crimes only, judges appear to trust juries more with this kind of information. On the other hand, compare the following: Student 36.0 Judge This was by far the biggest difference in favor of the students about probative value; more students than judges seem to genuinely believe that a conviction involving illegal immigration is useful in evaluating a witness’s 145 This Table is permanently available ahtttp://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-3/simmons-graphics.pdf [https://perma.cc/XP7V-N3RH]. 146 See supra note 146 and accompanying text (analyzing the average unfair prejudice rating for all crimes in Table 6). 147 This Table is permanently available ahtttp://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-3/simmons-graphics.pdf [https://perma.cc/XP7V-N3RH]. credibility. This was also the only crime that more students would admit than judges (although still only 28% of students would admit the crime). On average, students gave this crime a probative value rating approximately as strong as many of the theft crimes, such as carjiancgk, grand theft auto, robbery, and shoplifting. D. Critiques of the Survey The survey results can be critiqued on a number of levels. Mostnf-u damentally, they do not necessarily reflect thaectual probative value and actual unfair prejudice of each of these pieces of evidence; rather, they represent the students’ and judgese’stimates of probative value and unfair prejudice. Nevertheless, the survey results may be the best estimates that we can make. It would be very hard, if not impossible, to measure tahcetual probative value or the actual unfair prejudice of each type of prior concv-i tions.148 The judges’ estimates may be the more accurate of the tw—o after all, judges estimate probative value and unfair prejudice on a daily basis for all sorts of evidence; if we ignore their estimates in this context, we are calling into question thousands of Rule 403 rulings that judges make in cotu-r rooms every day. The students’ responses may be less reliable indicators in some ways, because students do not have the experience and expertise that the judges do. The students, however, may reflect a perspective that is less hardened by having presided over years of criminal trials and therefore more accurate.149 They also may present a more politically diverse group of respondents, because judges tend to be more conservative and are often former prosecutors.150 One indicator of the accuracy of the results, however, is the consistency seen between the two diverse groups of respondents. Both groups would admit serious theft crimes such as embezzlement and insider trading, and 148 Probative value in this context would measure how much a prior conviction in fact indicates that a witness is likely to lie on the stand; unfair prejudice would measure how likely a juror is to ignore the limiting instruction, and if so, to what extent the average juror will allow the belief in the defendant’s propensity to commit a crime to influence her verdict. 149 Law students are also probably better respondents than the general population because they are familiar with the terms “probative value” and “unfair prejudice.” 150 See Adam Liptak, Why Judges Tilt to the Right, N.Y. TIMES (Jan. 31, 2015), https://www. nytimes.com/2015/02/01/sunday-review/why-judges-tilt-to-the-right.html [https:p/e/rma.cc/6PWXY7YA] (discussing a study that shows judges tend to be more conservative than lawyers and possible reasons why this trend occurs)S.ee generally Adam Bonica & Maya Sen,The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary (Harvard Kennedy Sch. Faculty Research Working Paper SerieRsWP15-001, 2015), https://research.hks.harvard.edu/publications/workingpapers/citation.aspx?PubId=9544&type=FN& PersonId=280 [https://perma.cc/GNN8-N3SM] (conducting an empirical study of thepoliticization of the court system). 2018] students came very close to agreeing with the judges in admitting some other theft crimes, such as shoplifting or grand theft auto. This leads to a ep-r sumption that the probative value for these crimes is generally higher than their unfair prejudice. A more sophisticated critique of the survey is that it is decontextualized; that is, the judges are assigning levels of probative value and unfair prejudice in the abstract, without an actual defendant with actual charges in front of them. Judges may act somewhat differently in actual trial situations, for a number of reasons. First, they may be more thoughtful and engage in more critical thinking in making a re-lailfe decision than when they are simply filling outa survey. Second, the survey results are anonymous, whereas the judges’ actual rulings are public, and therefore may be uin-fl enced by how the judge believes she will be perceived by others (current litigants, future litigants, other judges, etc.). Third, the survey specified that the prior conviction was “completely dissimilar” to the charge the hypothetical defendant is currently facing, whereas in an actual trial situation the prior conviction may be similar to the current charge to varying degrees (for example, if the defendant is now on trial for firearm possession, a prior conviction for selling drugs could be seen as related because some jurors may associate selling drugs with possessing firearms), which should change how the judge would gauge the level of unfair prejudice. And finally, in the actual courtroom, judges may be influenced by a wide variety of implicit biases—based on the race of the defendant, the judge’s own knowledge of the defendant’s prior record or other aspects of the defendant’s background, the type of crime the defendant is accused of, the strength of the evidence against the defendant, or any other factors.151 All of these critiques are legitimate reasons why the survey results may be inconsistent with how judges actually rule in cases, but most of them are not reasons to believethat the survey results are inaccurate in their ie-st mates of probative value and unfair prejudice. Indeed, the second and fourth of these critiques (the fact that the survey is anonymous and responses are more likely to be free of implicit biases) are reasons to believe that the sruvey results more accurately reflect the actual probative value and unfair prejudice than the judges’ actual rulings. The first critique—that judges may be more thoughtful and analyitcal in actual cases—cuts the other way, although it is possible that judges will in fact be more thoughtful when they are forced to explicitly rate the probative value and unfair prejudice of a prior conviction, as they are in the survey. The third critique does not really 151 Thanks to Professor Anna Roberts for this critiqueS.ee Roberts, Implicit Stereotyping, supra note 1, at 861–68. affect the accuracy of the survey results; it merely points out that real trials are more complex than the survey can model. Having acknowledged the differences between how judges maey- r spond in the survey and how they may rule in actual cases, we can now turn to an analysis of actual cases. In the next section, we will examine how judges rule on Rule 609 cases in the courtroom, a nthden compare those rulings to our survey results. III. RULE 609 IN THE COURTROOM If the survey’s averages were a completely accurate indicator of how judges applied the Rule 609(a)(1)(B) balancing test, then judges would routinely admit all theft crimes and exclude all other crimes (assuming, as the survey did, that the prior conviction and the crime for whichthe defendant is on trial are completely dissimilar). For many critics of Rule 609, even this state of affairs would be unacceptable: to them, even the admission of a prior theft conviction against a defendant accused of a completely unrelated crime is an injustice.152 For these critics, the marginal probative value of prior convictions of theft to prove lack of credibility is too low, and the unfair prejudice of the jury hearing about the prior crime (even with a limiting instruction) is too high.153 This is, in the end, a judgment call: there is no empirical evidence of how indicative a prior felony theft conviction is to prove lack of credibility on the stand, and there is no real way of knowing the extent to which jurors will misuse the conviction as evidence of criminal propensity. It is worth noting, however, that surveys of the students (who had just learned about the rule a day or two before taking the survey) and of judges (who had years of experience applying the rule in their courtrooms) indicate emexetlry strong support for the proposition that, for theft crimes at least, the probative value of the prior conviction does outweigh its unfair prejudice. Of course, that result only takes into consideration theaverages of all the responses; some judges idnicated they would admit almost any prior conviction, whereas others indicated that they would admit almost no prior conviction.154 This is unavoidable for any rule that gives such a broad level 152 See Friedman, supra note 1, at 638 (arguing for the abolition of character impeachment of a criminal defendant); Roberts, Conviction, supra note 1, at 2018–36 (discussing efforts ot abolition or reform Rule 609). 153 See Hornstein, supra note 1, at 15–19 (discussing marginal probative value compared to the high prejudicial effects of prior impeachment evidence); Roberts, Conviction, supra note 1, at 1997 (discussing marginal probative value). 154 This diversity is reflected in the standard deviations for each response, as reported in pApendix A, infra. 2018] of discretion to the decision maker, but it could be used as anargument for reforming the rule. Even if the results on average seem sensible (admitting all theft crimes and precluding all other crimes), if a substantial minority of judges admit convictions that cause a very high level of unfair prejudice, the rule may do more harm than good. Furthermore, the survey itself asks judges how they would respond in a hypothetical case. It could be true that in practice, when deciding actual cases, judges behave differently. There are certainly isolated examples of trial judges making questionable decisions regarding Rule 609(a)(1)(B1)5.5 But to support an argument that this decision should be taken out of the hands of judges altogether, critics of the rule would need to have evidence that judges misapply the balancing test often enough that they routinely admit convictions whose unfair prejudice outweighs their probative value. So the last piece of the empirical data to consider is: how are trial judges actually applying this rule in practice? For the most part it seems that fdeeral trial judges do not make qusetionable Rule 609(a)(1)(B) decisions. An analysis of over one hundred and twenty federal district court cases156 indicates that this type of abuse is not widespread. As would be expected from our survey results, trial courtjudges frequently admit convictions of theft crimes such as possession of stolen property, larceny, and robbery. On the end of the spectrum, trial courts are much less likely to admit prior convictions for drug sale, firearm offenses, and assault, presumably because they are much less probative of credibility. Below are the results for the ten most common crime15s7. There are three columns for admissibility: the first column indicates whether the judge ad155 For example, in a recent case in Tennessee in whicthe defendant was charged with possessing and selling cocaine, the trial judge, with very little analysis, ruled in favor of admiatting defendant’s prior convictions for drug possession, drug sale, and aggravated assault to impeach the defendant if he testified. United States v. Sneed, No. 3:14 CR 00159, 2016 WL 4191683, at *2 (M.D. Tenn. Aug. 9, 2016) (“If Sneed chooses to testimony [sic], his credibility will be a central issue. We will allow impeachment using the three underlying felonies due to their anticipated probativel- va ue.”). 156 To conduct this analysis, we reviewed every federal district court case on Westlaw over the past twenty-two years that involved a Rule 609(a)(1)(B) motion, including the unpublished cases. This, of course, does not represent every possible Rule 609(a)(1)(B) decision, because many judges will make a Rule 609(a)(1)(B) ruling without reporting the decision to Westlaw. It is possible that this limitation of our empirical analysis may skew the result—sunreported decisions may be less thoughtful or contain less legal analysis than reported decisions, leading to a different pattern of admissibility. A more comprehensive survey of every Rule 609(a)(1)(B) decisionn,- i cluding both reported and unreported decisions, however, would be extremely resource-intensive and may in fact not be possible. 157 The overall sample included thirty-one different crimes, but most of them only arose once or twice, which was not enough times to indicate an accurate pattern of admission. These ten crimes were the only crimes that appeared four or more times in our sample. mitted the fact of the felony conviction and allowed the prosecutor to reveal the name of the crime; the second column indicates how often the judge admitted the fact of the conviction but did not allow the prosecutor to reveal the name of the crime; and the third column indicates the total percentage of times that the judge admitted the prior conviction. A number of aspects of these results stand out. First, contrary to the argument by some Rule 609 critics that judges routinely admit prior concv-i tions to impeach criminal defendants, the data indicate that judges only ad158 This Table is permanently available ahtttp://www.bc.edu/content/dam/bc1/schools/law/ pdf/law-review-content/BCLR/59-3/simmons-graphics.pdf [https://perma.cc/XP7V-N3RH]. 2018] mitted two-thirds of these prior convictions, and the jury is told the name of the prior conviction only about half the time. This indicates that judges are not automatically admitting prior convictions, but that they are taking the balancing test seriously. Furthermore, the results from the courtroom are broadly consistent with the results of hte student survey and the judge survey: judges admitted theft crimes by name far more often than other crimes (other than crimes of drug possession, which will be discussed below) whereas crimes of violence are admitted far less often.159 Our analysis of thecases indicate that most judges were acutely aware of the danger that exists when a prior conviction was similar to the crime for which the defendant was currently on tria1l6.0 For example, of the nineteen drug sale convictions that were precluded, twelve of them were precluded at least in part because of the similarity between the prior conviction and the current charges. The same reasoning supported precluding five of the eight robbery charges that were precluded. In four other cases, the trial judge ep-r cluded a prior conviction involving a drug crime because the defendant was currently on trial for a firearms charge and juries might associate drug crimes with firearms.161 In another case, the trial judge precluded a prior conviction for grand larceny because the defendant was currently on trial for a firearms offense and the judge was concerned that juries may not know the elements of grand larceny and incorrectly speculate that it involves the use of ae-fir arm.162 Finally, with regard to prior drug sales, judges frequently compromise by admitting the fact and the date of a prior conviction without allowing the prosecutor to elicit the specific name of the crime; often the judge explained that this was because of the similarity between the prior conviction anhde t crime for which the defendant was now being charged. 159 See supra notes 141–146 and accompanying text (discussing the results of the survey). 160 Most circuit courts require trial judges to apply a five-factor balancing test when determining admissibility under Rule 609(a)(2). Although the factors differ slightly from circuit to circuit, a common factor is the similarity between the charged crime and the prior conviction—the omre similar the prior conviction, the more likely it will be that the jury will use the prior conviction improperly as evidence of propensity to commit the crime in questionS.ee, e.g., United States v. Hernandez, 106 F.3d 737, 739–40 (7th Cir. 1997). 161 See United States v. Wilson, No. 15-c9r-4, 2016 WL 2996900, at *2(D.N.J. May 23, 2016) (“While the offenses are not identical, they are similar because, in this matter, an individual juror may associate Defendant’s current charge of illegally possessing a firearm as a convicted felon with his prior conviction for distributing heroin.”); United States v. Figueroa, No. 15-0098, 2016 WL 126369, at *2 (D.N.J. Jan. 11, 2016)(reasoning that an individual juror may associate drugs and guns); United States v. Vasquez, 840 F. Supp. 2d 564, 569 (E.D.N.Y. 2011) (concluding that drug possession is not sufficiently “veracityr-elated” to be more probative than prejudicial;) United States v. White, No. 08-cr-0682, 2009 WL 4730234, at *4 (E.D.N.Y. Dec. 4, 2009). 162 United States v. Alexander, No. CR-04-64-B-W, 2005 WL 2175169, at *2 (D. Me. Sept. 6, 2005). The trial occurred in Maine, and Maine did not have a crime for grand larceny, so the trial judge was concerned that the jurors would be too unfamiliar with the crime. And yet the statistics from the courtroom do show some troubling trends. Judges admit crimes of violence at an oddly high rate: over half of the prior convictions for assau-ltype crimes were admitte,d even though our survey results show that they have close to the lowest level of probative value for credibility and a relatively high level of unfair prejudice.163 Judges also admitted three quarters of the prior convictions for drug possession, even though surveys indicated that the unfair prejudice of that crime is far higher than the probative value for credibility. Perhaps most troubling of all is that in approximately 18% of the cases, the prior conviction was admt-i ted—including the name of the crim—eeven though it was identical or nearly identical to the crime for which the defendant was currently oni-tr al.164 This implies that a substantial minority of the judges admit prior cnovictions in which the unfair prejudice almost certainly outweighs the probative value. This is not surprising: the survey indicated a number of outlying judges who would admit nearly every prior conviction; thus, we can assume that some judges will be very liberal in their courtroom rulings. Neveret-h less, evidence that such a significant percentage of rulings are so out of step with the mainstream consensus provides support for the argument that the rule may need to be amended to avoid these types of rulings. IV. A NEW RULE 609 Any attempt to reform Rule 609 must consider its placein the overall context of impeachment evidence and propensity evidence. Many critics advocate barring the use of prior convictions when used to impeach criimnal defendants—that is, abolishing Rule 609(a)(1)(B) entirely and amending Rule 609(a)(2) (which automatically admits all crimes of falsity) to ensure that it does not apply to criminal defendants1.65 But this change on its own would create inconsistencies in the law: prior convictions would still be allowed to impeach any other witness, whereas other tpyes of dishonest conduct could still be used to impeach criminal defendants under Rule 608. Furthermore, abolishing Rule 609(a)(1)(B) entirely would mean that prior convictions could never be used to impeach, no matter how numerous they were and no matter what type of crime the defendant had committed, primarily under the theory that the unfair prejudice of such evidence almost 163 See supra note 136 and accompanying text (discussing the probative value for credibility and level of unfair prejudice of assault-type crimes in Tables 2 and 3). 164 In one notable case, the defendant was on trial for possession of drugs with the intent to sell them, and the judge admitted four prior convictions for drug possession and one prior convcition for drug possession with intent to sell. United States v. Alexander, No. 11 CR 114,8-2014 WL 64124, at *6–8 (N.D. Ill. Jan. 8, 2014). 165 See Roberts, Conviction, supra note 1, at 2018–36 (discussing efforts to abolish Rule 609). 2018] always outweighs its probative value.166 As we can see from both the survey data and the analysis of courtroom decisions, this perspective is dramatically at odds with how judges view this evidence. It is certainly possible, as some critics contend, that the vast majority of judges (not to mention the majority of law students) are misguided, and that prior convictions should never be admitted against criminal defendants under any circumstance1s6.7 But it seems more likely that these convictions are at least occasionally more useful to a jury than they are harmful, which would lead us to seek out a more modest reform of Rule 60—9 one which, incidentally, is far more likely to be politically feasible than outright abolition.168 Rule 609(a)(1)(B) already contains a balancing test, which iosstensibly very favorable to the defendant: prior convictions are only supposed to be admitted if their probative value outweighs their unfair prejudic16e9. If judges properly applied this test in every case, it would be hard to make a case for changing the rule. The concern is that in practice, judges (or at least some judges) do not apply the balancing test properly: theyeither overestimate the probative value of the evidence, underestimate its unfair prejudice, do both, or perhaps ignore the balancing test altogether. The response to these problems should not be to abolish the rule entirely, but to provide judges with more guidance in the text of the rule so that they follow the abnacling test more accurately and more consistently. After examining the empirical data, we can reach two tentative conclusions. First, the surveys of students and judges reach a consensus that for some prior convictions—those that involve crimes of the—ftthe probative 166 See FED. R. EVID. 609(a)(1)(B). 167 See generally, e.g., Friedman, supra note 1 (arguing for the abolition of Rule 609 on the grounds that the prejudicial effect of prior conviction evidence always outweighs the probative value of such evidence); Hornsteins,upra note 1 (same); Spector, Impeaching the Defendan,t supra note 1 (same). 168 But see Roberts, Conviction, supra note 1, at 2016–36 (tracing the successful attempts to reform Rule 609 in three different state evidence codes). 169 In contrast, if Rule 609(a)(2) did not exist, the admissibility of a defendant’s prior convcitions would be assessed under Rule 608, which would admit the prior conviction as long as the unfair prejudice did not substantially outweigh its probative value. This would result in a much larger number of prior convictions being admitted. Of course, those who advocate abolishing Rule 609(a)(2) are aware of this fact, and many of them propose replacing the rule with another rule that bans prior conviction evidence to impeach criminal defendants in any context, thus carving out an exception to Rule 608.See, e.g., Roberts, Conviction, supra note 1, at 2036 (proposing the following change to the statutory language: “In a criminal case whethree defendant takes the stand, the prosecution shall not ask the defendant or introduce evidence as to whether the defendant has been convicted of a crime for the purpose of attacking the defendant’s credibility. If the defendant denies the existence of aconviction, that denial may be contradicted by evidence that the conviction exists.”). value for impeachment outweighs the unfair prejudice1.70 The surveys also reach a consensus that some prior convictions—crimes of violence, sex crimes, and drug crimes—have very little probative value for impeachment and a very high level of unfair prejudice.171 Second, our analysis of trial court judges applying Rule 609 in the courtroom shows rulings that are broadly consistent with the survey results: crimes of theft are very often admitted, whereas crimes of violence are not. And yet some glaring inconsistencies exist: specifically, crimes of drug possession are admitted to impeach even though the survey states that they have almost no impeachment value, and a substantial nmoriity of judges admit prior convictions even though they are identical to the crime for which the defendant is now on trial. These two conclusions point us in a similar direction: we need to amend Rule 609 to provide more guidance to those trial judges who are improperly admitting prior convictions that do not in fact pass the balancing test. We can provide that guidance by explicitly stating that theft crimes can be admitted for this purpose, but that no other crimes should be considered. This would be a relatively simple amendment to Rule 609(a),172 which now reads: Rule 609. Impeachment by Evidence of a Criminal Conviction (a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and 170 In the survey, crimes of theft included burglary, carjacking, embezzlement, grand theft auto, shoplifting, and insider trading. 171 Of course, just because students and judges reach a consensus on these issues does not mean that they are correc.t It could be, as the Rule 609 critics might contend, that the probative value of prior convictions is never sufficient to overcome the substantial unfair prejudicial effect that they have on the jury. But there is naopparent way to measure the true probative value or unfair prejudice of this kind of evidence; thus, the opinions of those who are first exposed to the rule and of those who apply the rule on a regular basis are at least useful data points in evaluating the rule. 172 See FED. R. EVID. 609(a). The rest of Rule 609 deals with convictions that are over ten years old, convictions that have been pardoned or annulled, juvenile convictions, and convictions that are being appealed, all of which are issues outside the scope of thisArticle. See id. R. 609(b)– (e). 2018] (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and (2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required provin—gor the witness’s admitting—a dishonest act or false statement. The proposed amendment would be to Rule 609(a)(1)(B), which would now read: (B) may be admitted in a criminal case in which the witness is a defendant, only if the crime involves an element of thefte, - r ceiving stolen property, or similar criminal activity, andif the probative value of the evidence outweighs its prejudicial effect to that defendant; and This would limit impeachment by prior conviction for criminael- d fendants to two types of crimes. First, under our amended Rule 609(a)(1), felonies that contain an element of theft would be admissible against a criminal defendant if the probative value outweighed the unfair prejudice, and admissible against any other witness if it passed the Rule 403 test. Second, under the existing Rule 609(a)(2), felonies that contain an element of falsity would be automatically admitted in all cases.173 This amendment would serve a number of important purposes. First, it would bar the admission of prior crimes that have (according to our survey 173 This proposal parallels Michigan’s Rule 609, which automatically admits crimes of falsity, and then admits theft crimes if they are felonies and (if the witness is a criminal defendatnhte) probative value of the evidence outweighs its prejudicial effectS.ee MICH. R. EVID. 609(a). It is worth noting that this amendment would bring the federal Rule 609 closer in content to many states’ Rules of Evidence. In twenty-two states, theft crimes are considered “crimes of falsity” and are therefore automatically admissible under the state’s version of Rule 609. See Huffman v. State, 706 So. 2d 808, 813 (Ala. Crim. App. 1997); Richardson v. State, 579 P.2d 1372, 1376–77 (Alaska 1978); Webster v. State, 680 S.W.2d 906, 908(Ark. 1984); Webb v. State, 663 A.2d 452, 461 (Del. 1995); State v. Page, 449 So. 2d 813, 815–16 (Fla. 1984); People v. Spates, 395 N.E.2d 563, 568–69 (Ill. 1979); Newman v. State, 719 N.E.2d 832, 836 (Ind. Ct. App. 1999); State v. Harrington, 800 N.W.2d 46, 51 (Iowa 2011); State v. Mahkuk, 551 P.2d869, 872–73 (Kan. 1976); State v. Grover, 518 A.2d 1039, 1041 (Me. 1986); State v. Brown, 621 N.E.2d 447, 454 (Ohio Ct. App. 1993); Cline v. State, 782 P.2d 399, 400 (Okla. Crim. App. 1989); State v. Gallant, 764 P.2d 920, 922–23 (Or. 1988); Commonwealth v. Kyle, 533 A.2d 120, 123 (Pa. Super. Ct. 1987); State v. Shaw, 492 S.E.2d 402, 403–04 (S.C. Ct. App. 1997); State v. Butler, 626 S.W.2d 6, 11 (Tenn. 1981); Bello v. State, No. 05–14–00284–CR, 2015 WL 2358173, at *2–3 (Tex. Ct. App. 2015); State v. Ray, 806 P.2d 1220, 1234(Wash. 1991) (en banc); State v. McDaniel, 560 S.E.2d 484, 490 (W. Va. 2001).The proposed amendment would not automatically admit theft crimes as crimes of falsity, but it recognizes (as nearly half the state courts do) that these crimes are particularly probative for demonstrating propensity to lie on the stand. results) very low probative value and very high unfapirejudice, such as crimes of violence, drug possession, or drug sale. As we saw in our analysis of actual cases, there are many judges who admit these prior convictions at significant rates (though generally not as high a rate as the theft crimes), even though the survey respondents indicated they should almost never be admitted. This amendment ensures that Rule 609 stays consistent with 608(b), which allows parties to impeach with prior dishonest action1s7.4 According to the survey results, theft crimes have a high probative value for dishonesty; thus, many of them would be admissible under Rule 608(b) even in the absence of Rule 609. On the other hand, the survey indicates that other crimes, such as assault and drug crimes, have a very low level of bparotive value for dishonesty and a relatively high level of unfair prejudic;ethus, the use of these prior convictions to impeach criminal defendants would almost certainly be barred by Rule 608(b) in the absence of Rule 609.175 Because our survey only compared the probative value and unfair prejudice for criminal defendants, it provides no support for amending Rule 609(a)(1)(A), which covers impeaching witnesses other than criminale-d fendants.176 The probative value of prior convictions is the same regardless of the identity of the witness being impeached, but the unfair prejudice to the party who called the witness will be much lower if the witness is not the criminal defendant. Thus, it could be that even a crime of violence or a drug crime, which have a very low probative value, may have such a low level of unfair prejudice that the unfair prejudice does not substantially outweigh that low probative value. Our analysis of the case law shows thtahtis would be a significant change in the use of criminal convictions to impeach criminal defendants. Judges currently admit about 68% of prior convictions for crimes unrelated to theft177—even though the survey results indicate a strong consensus among judges that the unfair prejudice of these crimes outweighs their porbative value. Our proposed rule would automatically bar all of these prior convictions. Furthermore, non-theft crimes are offered to impeach criminal Rule 174 See FED. R. EVID. 608(b). 175 One other possible amendment would be to codify the common law rule that similarity between the prior conviction and the current charge should bea factor weighing against admissibility, because our analysis of case law shows some judges admitting prior crimes that are ideni-t cal to the current charges.See United States v. Hernandez, 106 F.3d 737, 739–40 (7th Cir. 1997) (setting out that five factors that should be considered when deciding whether to admit prior crimes evidence). 176 See FED. R. EVID. 609(a)(1)(A). 177 This percentage includes instances in which the judge admits the prior conviction but does not give the jury the name of the prior crime. defendants far more often than theft crimes are offered,178 so a large proportion of prior convictions that are currently admitted to impeach would be automatically barred.179 Future reforms to Rule 609 may depend on further empirical analysis. For example, Rule 609(a)(2) automatically admits any crime of falsity180— even if the prior conviction is not a felony, even it if occurred eight or nine years before, and even if it is identical to the crime currently being charged. This probably leads to some crimes of falsity being admitted even though the unfair prejudice of the prior conviction substantially outweighs its porbative value. And for witnesses who are not criminal defendants, more work needs to be done to measure the unfair prejudice to the party who called the witness that is caused by admitting the witness’s prior convictions. Iin-tu tively, it would seem that the unfair prejudice is less than if the criminal defendant himself is being impeached, but the degree to which that is true could still be measured. CONCLUSION For decades, both critics anddefenders of Rule 609 have been talking past each other, each making claims about the usefulness of prior conc-vi tions to the jury, and the unfair prejudice that their admission may cause. The legislators who originally passed Rule 609 were certain that this i-ev dence was extremely probative for jurors to know about; the scholars who have uniformly criticized the rule ever since its passage are equally certain that the implementation of the rule almost always does more harm than good. This Article has attempted to bring some empirical evidence to bear on this decades-old dispute, and it uses that evidence to bring a more modest, targeted reform that will limit abuse of the rule but still ensure that the jury learns about the most useful types of criminal convictions. 178 Of the 252 prior convictions that we examined in our analysis, 75% were crimes that did not involve theft. This would mean that in 75% of the cases in which prosecutors currently request that prior convictions be admitted the proposed Rule 609 would bar admissibility of those convcitions altogether. 179 Our data sample excluded cases in which the prosecutor offered a crime of falsity under Rule 609(a)(2), because those lay outside the scope of our survey. The proposed amendment would not affect the admissibility of these conviction—sthey would still be automatically admsisible, as they are now. The proposed amendment would also not affect the admissibility of the 25% of prior convictions from our study that involve a crime of thef—tthey would still be subject to the same balancing test, and presumably would still be admitted approximately at a 72% rate, as they are now. 180 For this rule to apply, the convictionmust have occurred within ten years of the trial.See FED. R. EVID. 609(b). APPENDICES181 APPENDIX A The Survey Instrument Rule 609 Poll Assume that a defendant is on trial and will take the stand, and the jury will hear about one of his prior convictions for impeachment purposes. On a scale of 0-100, how probative do you think each of the following crimes would be to prove that the defendant has a tendency to lie and is therefore more likely to be lying on the stand? And on a scale of 0-100, how unfairly prejudicial do you find each of the following crimes? Assume that alclonvictions took place five years ago. Also assume that the crime for which the defendant is now on trial is completely dissimilar from the prior conviction. PROBATIVE VALUE FOR IMPEACHMENT UNFAIR PREJUDICE CRIME 181 These Tables are permanently available ahtttp://www.bc.edu/content/dam/bc1/schools/ law/pdf/law-review-content/BCLR/59-3/simmons-graphics.pdf [https://perma.cc/XP7V-N3RH]. against Crime APPENDIX B—RAW DATA Mean Average Crime Median Average Standard Deviation Standard Deviation Probative Value Standard Deviation Unfair Prejudice APPENDIX C Comments by Judges I am in receipt of your request that I complete a brief survey withe-r gard to the admissibility (or otherwise) of prior criminal convictions of a testifying defendant. I simply do not believe that I can answer this survey in any way, given that the decision to admit a prior conviction, assuming the legal prerequisites are present, depends greatly on thecontext in which the prior convcition is offered, based upon the testimony of the defendant which the prior conviction seeks to impeach, as well as upon the overall context of the case, as it has developed, including the charge on which the defendant is presently standing trial. If I have, somehow, missed the purpose of the survey or, for that mtater, have misconstrued the nature of the question asked, please feel free to so advise, and I will do the very best I can ainnswering your questions, based upon your explanation. * * * * I am unable to participate in your Rule 609 Judicial Survey, but I don’t want to ignore your efforts. I think you should know my reasons for not participating. I think the reduction of judicial decision making to quantitative adat based on hypothetical facts is inappropriate. I never decide questiones- r garding the admissibility of prior convictions based on Rule 609 without a full consideration of the context in which the question arises. A mechanical application is something I never do. There may be a case in which the prior conviction is for assault causing minor injury in which I would admit the fact of the conviction and in yet another case charging the same offense I would not. The same applies to the other offenses you list. Much of the xeercise of my discretion depends on the degree of distortion from the truth that either or both sides is presenting in the case itself. If the prosecution’s case is weak, I probably wouldn’t admit it; if the defense is fanciful or generally misleading, I probably would. If both were occurring, I would weigh the question very carefully knowing full well it is a close call. As an additional point, I never use -scoalled standard instructions. I use pattern jury instructions as one of many sourcfeosr constructing my own instructions tailored to each case, and I use these instructions repeatedly throughout the trial, fromvoir dire to the conclusion of closingarguments. I know that you are trying to establish patterns, but I don’t think or decide in patterns. As an example, in over 39 years on the bench, I have never sentenced according to the Sentencing Guidelines and to apply them in rote fashion would in my view constitute a violation of my oath of office. Sometimes the sentences I impose serendipitously coincide with a Guideline calculation, but I have never imposed a sentence because it was formulated or dictated by the Guidelines. I sincerely hope this letter is of use to you. * * * * I cannot assign percentages. This demonstrates what I might let someone use for impeachment, but it depends on the case. [This judge used checkmarks instead of numbers – checking in the probative value column if s/he might admit the conviction, and the unfair prejudice if s/he would never admit] This is impossible to answer without more information regarding the crime for which the defendant is on trial. There is no scenario, in my view, where the prior conviction is probative. Jury prior conviction is prejudicial. “Felony only” means that the opposing party would only be able to ask if the declarant was convicted of aFelony without referring to the specific charge. [This respondent wrote “Felony only” on the survey sheet any time s/he gave a prior conviction a probative value greater than zero]. Please note several of these examples do not appear to be felonies or crimes involving dishonesty or false statement, e.g. underage drinking, prostitution, marijuana possession, etc. Thus, a 609 analysis is impossible. Best wishes as you continue to strive to assist our profession in its search for justice. Under the facts underlined above, I would not permit any of the suggested criminal convictions listed to be used to impeach the defendant’s testimony. The relative harm caused by the crimes is not relevant to my determination. I was a California State Court judge before becoming a federal judge. There is significant amounts of case law on this topic in California which I continue to use as a benchmark. If previously deemed admissible and within 10 years, I let it in. If not, I generally do not but will take argument. More facts are really needed for better analysis—answer is like answer to most evidentiary questions—it depends. If the limiting instruction is given, I believe the fact that the defendant has a prior felony conviction is always probative on the issue of his crie-d bility, and does not unfairly prejudice the defendant’s right to a fair trial. Here, we are not told what the prior conviction was, so I cannot say whether I would give the “sanitizing” instruction, butgenerally, that would depend upon how serious the prior felony was and how similar it might be to the crime or crimes charged. My basis for determining probative value is based on experience in observing persons with like crimes who more likely than not will be dishonest in their dealings with the court and the judicial system at one time or anohter. Having said that it is one factor to take into account and be assessed along with other person specific factors that are typically taken into account when assessing credibility. In that, the final determination may be that the person with the most heinous of past crimes at the time being assessed may be absolutely truthful, while the person with the least serious conviction in the past on the occasion being tested on a credibility issue may be determined to be completely dishonest. Sanitizing the specifics often helps tip the balance. It seems pretty artificial to opine not knowing the nature of the instant offence. Also, the sliders [the tool used on the onlinesurvey] are tedious to work. I don’t have time to go back and make little adjustments. They are not more than rough approximations. 53 Roberts, Conviction, supra note 1 , at 1992 (quoting Dannye W. Holley, Federalism Gone Far Astray from Policy and Constitutional Concerns: The Admission of Convictions to Impeach by State's Rules- 1990 -2004 , 2 TENN. J.L. & POL 'Y 239 , 304 - 05 ( 2005 )). 54 Roberts, Conviction, supra note 1 , at 1992- 93 .


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Ric Simmons. An Empirical Study of Rule 609 and Suggestions for Practical Reform, Boston College Law Review, 2018,