Restoring Justice: Purging Evil from Federal Rule of Evidence 609
Volume 89, No. 4, Summer 2017
By Timothy R. Rice [PDF]

Although the era of mass incarceration is fading, ex-offenders (now known as “returning citizens”) remain burdened with a stigma from one of the most sacrosanct provisions in federal jurisprudence: Federal Rule of Evidence 609(a)(1). It endorses the use of any felony conviction to impeach any witness, including criminal defendants, regardless of the conviction’s link to untruthfulness. Rule 609(a)(1) codifies as law an inherent bias against the men and women who continue to be stereotyped as evil and unworthy of belief based solely on a prior felony conviction. Although felony convictions unrelated to truthfulness might, in some cases, have some marginal relevance to credibility, this Article challenges the Rule’s underlying premise that such felonies are always relevant to the credibility of all witnesses in all cases. Moreover, this Article suggests that principles of restorative justice justify eliminating the use of a prior felony unrelated to truthfulness to impeach returning citizens who testify as witnesses.

Timothy R. Rice has served as a U.S. Magistrate Judge for the Eastern District of Pennsylvania since 2005, where he has been part of a reentry court team since 2007. He served for eighteen years as a federal prosecutor, including as Chief of the Criminal Division of the U.S. Attorney’s Office for the Eastern District of Pennsylvania. From 2009 to 2015, he was a member of the U.S. Judicial Conference Advisory Committee on the Federal Rules of Criminal Procedure. He also teaches Evidence and Advanced Criminal Trial Advocacy at Temple University Beasley School of Law.