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.
Restoring Justice: Purging Evil from Federal Rule of Evidence 609
Volume 89, No. 4, Summer 2017