Why Reform?
Why Reform?
In every state other than Montana, Kansas and Hawaii, prior convictions are routinely introduced under the rules of evidence with the ostensible purpose of impeaching the credibility of both defendants and other witnesses. This practice of impeachment by prior conviction is an antiquated anachronism that is both indefensible under its stated rationale and a prime perpetuator of racial bias in both the criminal and civil legal systems. Although the stated rationale for impeaching with prior convictions is to shed light on a witness’s “propensity for truthfulness,” prior convictions have no established predictive connection to a witness’s truthfulness or untruthfulness.
Instead, the potential for impeachment with prior convictions silences defendants, deters or diminishes vital witness testimony, offers powerful leverage for prosecutors in the context of plea agreements, and influences settlement negotiations, despite having no necessary relevance to determining facts at issue in these cases. When admitted at trial through impeachment rules, prior convictions do not help factfinders make better judgments about witnesses’ honesty. Rather, prior convictions prejudice juries who hear about them and consequently lower the burden of proof and make it easier to secure convictions in close cases. These effects are amplified exponentially for witnesses of color and witnesses affected by poverty, who are disproportionately the bearers of prior convictions. In this way, evidence law has become a vehicle for imposing a serious and overlooked collateral consequence on those with prior convictions, one that does a disservice to both truth-seeking and the pursuit of justice writ large.
Racial bias. Prior conviction impeachment is a continuation of policies that barred witnesses from testifying in courtrooms in the United States based on racism, sexism, classism, and other forms of bigotry. Although these patently unconstitutional witness competency laws are gone, impeachment with prior convictions still functions systematically to exclude and silence witnesses with prior convictions who—due to racial disparities at each stage of criminal proceedings—are disproportionately witnesses of color. Prior Conviction Impeachment is the continuation of a historical view that certain witnesses were not worthy of belief. The federal rule on which most state rules are modeled was itself the product of a racially charged Congressional debate in which the “stereotype of the Black criminal” played a central role. Today, as discussed below, prior conviction impeachment functions in large part as a witness silencing mechanism, and the witnesses it silences are disproportionately people of color.
Constitutional implications. The threat of prior conviction impeachment chills the exercise of the constitutional right to testify in one’s defense. Studies of wrongful convictions and first-hand accounts offered by exonerees who chose not to testify at their trials describe the decision as motivated by a well-founded fear of being branded in the eyes of the jury by their prior convictions. Prior conviction impeachment has also encouraged those facing criminal charges—including those subsequently exonerated—to waive the right to trial and take a guilty plea. Concern for protecting the constitutional right to testify caused the Hawai’i Supreme Court to bar prior conviction impeachment of those facing criminal charges. Relatedly, many evidentiary rules and precepts assume the existence of a meaningful—and vital—opportunity for those facing criminal charges to testify. Evidence rules also favor live testimony of witnesses where possible. By silencing many defendants in criminal cases and imposing a penalty on non-party witnesses who must face questioning about unrelated prior convictions when performing their civic duty and testifying in court, prior conviction impeachment stands in tension with these precepts.
Lack of empirical basis. Prior convictions are not a tested metric of untruthfulness. Instead, they have long signified which witnesses are deemed unworthy of being heard or believed. Yet, being unworthy of belief in the eyes of those in power is not the same as being dishonest. Fifty years after the enactment of the federal rule on prior conviction impeachment, it is clear that the only permitted use of convictions under that rule and its state analogs, namely to shed light on a witness’s “character for truthfulness,” is not supported by social science data. To the contrary, the best empirical study on the effect of prior conviction impeachment found that “determinations of the defendant’s credibility are not the prime method by which criminal record influences guilt judgments.” Instead, “[t]he evidence against a defendant with a prior record appears stronger to the jury.”