Conviction by Prior Impeachment

Abstract

Impeaching the testimony of criminal defendants through the use of their prior convictions is a practice that is triply flawed: (1) it relies on assumptions belied by data; (2) it has devastating impacts on individual trials; and (3) it contributes to many of the criminal justice system’s most urgent dysfunctions. Yet critiques of the practice are often paired with resignation. Abolition is thought too ambitious because this practice is widespread, long-standing, and beloved by prosecutors. Widespread does not mean universal, however, and a careful focus on the states that have abolished this practice reveals arguments that overcame prosecutorial resistance and that intervening developments have strengthened. It also reveals decades of courtroom experience, illustrating both the potential and weaknesses of existing bans on this form of impeachment. Examining and finding wanting the reasons for this practice’s ongoing existence, this Article proposes a model statute for states considering abolition.

Keywords: impeachment, 609, collateral consequences, wrongful convictions, prosecutorial ethics, plea bargaining

JEL Classification: K14, K41