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

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Author: Jesse Schupack
Date: Mar. 2021
From: Michigan Law Review(Vol. 119, Issue 5)
Publisher: Michigan Law Review Association
Document Type: Article
Length: 13,919 words
Lexile Measure: 1810L

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

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


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

The stakes here are high. (4)...

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Gale Document Number: GALE|A658474114