Reclaiming the Importance of the Defendant’s Testimony: Prior Conviction Impeachment and the Fight Against Implicit Stereotyping

Abstract

Implicit courtroom stereotypes are an urgent problem. When trial defendants are African American, as is disproportionately the case, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, hostility, aggression, immorality, and guilt. Implicit-social-cognition research reveals that one valuable tool in combating this threat is individuating information — information that, through methods such as defendant testimony, brings an individual to unique life.

Yet courts frequently chill defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a multifactor test, one factor of which is “the importance of the defendant’s testimony.” This factor was designed to prevent defendant testimony from being chilled: if the testimony was important, then impeachment was to be avoided. Now, courts often invert this factor’s meaning: they find that if the defendant’s testimony is important, the government should be able to impeach it. The distortion of this factor means not only that impeachment is typ- ically permitted — and defendants frequently silenced — but also that a valuable opportunity to tackle courtroom bias is lost.

This Article proposes that the “importance of the defendant’s testimony” factor should be reclaimed as a means for defendants to argue that the individuating information that their testimony can offer militates against permitting impeachment. When the defendant’s race risks triggering stereotypes that threaten the presumption of innocence, individuation represents a crucial part of the struggle for a fair trial.

Keywords: implicit bias, implicit stereotypes, individuation, impeachment, 609, debiasing

JEL Classification: K14, K41