Keeping it Real: Reforming the ‘Untried Conviction’ Impeachment Rule
87 Pages Posted: 10 Mar 2011 Last revised: 21 Mar 2011
Date Written: 2010
There is a growing call for a “New Legal Realism,” that, among other things, takes a “bottom-up” approach to studying the effects of rules of law on the people to whom they actually apply on a day-to-day basis. The New Legal Realism movement spans across various fields and disciplines related to law. The movement is particularly evident in the area of criminal law where there is an increasing effort to ensure reliability and accuracy in the system’s results. The recent move of some states to require racial impact statements for pending legislation as well as the advocacy and findings of the innocence movement exemplify this effort. Even more compelling are the recent lawsuits filed by public defenders in several states, citing their inability to represent their clients in a constitutionally effective manner and demanding to have their caseloads reduced until they can be adequately funded. This Article aids in the effort to improve our justice system’s reliability, taking a New Legal Realist approach to the area of evidence law as applied in the criminal setting.
I explore the interrelationship between plea bargaining and the use of prior convictions to impeach criminal defendants at trial, two of the most controversial practices in the criminal justice system. The prior conviction impeachment rule is a classic and deeply entrenched evidentiary rule. In this Article, I rename the Rule, dubbing it the “untried conviction” impeachment rule, to reflect the reality of its application. Indeed, the reality – overlooked by evidence and criminal law scholars – is that prior convictions used in later proceedings to “impeach” criminal defendants are most often untried convictions, having resulted from the plea bargaining system. I propose a fundamental shift in the application of Rule 609 to reflect this reality. Plea bargaining has rightly come under much scrutiny of late and is considered a prominent feature of our current system that processes defendants in an assembly-line fashion. I propose that, as long as we continue to impeach defendants with their untried convictions, Congress and state legislatures should act to exclude from Rule 609’s applicability the use of untried convictions. Alternatively, until lawmakers act, courts, who are charged with protecting the fundamental rights of criminal defendants, must vigilantly scrutinize the practice of impeaching criminal defendants with untried convictions, thus utilizing Rule 609 as an additional check on plea bargaining instead of as a rubber stamp.
Keywords: plea bargaining, new legal realism, plea negotiations, guilty pleas, evidence, impeachment, prior conviction impeachment, Rule 609, Rule 410
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