Eliminating Rule 609 To Provide a Fair Opportunity To Defend Against Criminal Charges:  A Proposal To The Advisory Committee on the Federal Rules of Evidence

May 1, 2024

Federal Rule of Evidence 609 authorizes the admission of prior convictions to impeach criminal defendants who testify.  And in this important and uniquely damaging application, the [r]ule’s logic fails, distorting American trials and depriving defendants of a fair opportunity to defend against the charges.  The Advisory Committee [on Evidence Rules (the “Advisory Committee”)] should propose the elimination of Rule 609 and prohibit cross-examination with specific instances of a criminal defendant’s past conduct when those instances are unrelated to the defendant’s testimony and unconnected to the case.

This short essay begins by setting out the proposed rule change alongside a proposed Advisory Committee [n]ote.  The balance of the essay elaborates on the [n]ote’s discussion.  The discussion highlights the proposal’s consistency with recent White House and [U.S.] Department of Justice [(DOJ)] policy initiatives and the unique opportunity that the elimination of Rule 609 presents to the Advisory Committee to improve the fairness and legitimacy of American trials.