RULE 609 VERSUS REHABILITATION: DOES WITNESS IMPEACHMENT DEFEAT REENTRY INTO SOCIETY?

As Washington continues to grapple with the nuances of lying, some citizens suffer from a stigmatizing federal law that treats them as if they were convicted liars without any logical or scientific justification.

Consider this scenario: An eyewitness foils a potential terrorist act, saving thousands of lives and earning praise from the community for bravery. The terrorism prosecution hinges on the testimony of the eyewitness. At trial, however, a judge allows the defense to argue that the eyewitness is an evil law-breaker who has a propensity to lie and should not be believed by the jury. The judge based the ruling on the eyewitness’s nine-year-old felony conviction for drug possession — the only blemish in an otherwise exemplary life. The law calls such attacks felony impeachment.

Legal? You bet. It happens almost daily in federal courts, and has been happening for more than 100 years.

Under the Federal Rules of Evidence, and most state rules, a witness who has a prior felony conviction is considered inherently evil, more likely to break the law again, and therefore less likely to abide by an oath to tell the truth. The law — Rule 609(a)(1) — applies to all felonies regardless of the crime. No link to lying or untruthfulness is required. The law’s presumption of evil gives a judge wide discretion to allow witnesses in a civil or criminal case to have their credibility attacked based solely on a felony committed within the last 10 years.

The time for change has come. Felony impeachment should be limited, as it is in Pennsylvania state courts, to only crimes related to untruthfulness. A witness convicted of lying under oath or making a false statement, can be attacked at trial as untruthful, but a witness convicted of robbing a bank or selling drugs, for example, should not be attacked as untruthful solely based on a prior felony conviction.

Since Congress passed the Second Chance Act in 2008, our society has taken enormous strides to help ex-offenders, now known as “returning citizens,” successfully reenter our communities. Those men and women — an astounding 650,000 are released every year — have done their time and need help to ensure they can get a fresh start after years or decades in prison. Research, led by LaSalle University Professor Caitlin Taylor, confirms the benefits of reentry programs, which help returning citizens resume lives as law-abiding and productive members of the community.

With assistance from reentry programs, returning citizens are more likely to stay out of prison, get an education, make better decisions, obtain a tax-paying job, and become role models and mentors for their children. The federal court in the Eastern District of Pennsylvania has been a trailblazer in this area since 2007, and more than half of the nation’s 94 federal courts have launched similar initiatives. Prosecutors, judges, probation officers, legal scholars, and defense attorneys endorse this restorative approach. And taxpayers benefit by spending less on imprisonment, which costs $34,770 annually per inmate.

The felony impeachment rule is rooted in an ancient legal notion that convicted felons could never testify in court. That prohibition disappeared more than a century ago. Yet legendary jurist Oliver Wendell Holmes declared that returning citizens remain burdened with an evil character from which a jury can conclude that they will lie under oath. Like Holmes’ ruling authorizing forced sterilization in a 1927 Supreme Court decision, the felony impeachment rule is outdated, unjustified, and flawed.

Scientific research has uncovered no link between prior felony convictions and lying. Last year, legal scholars Michael Sacks and Barbara Spellman wrote in “The Psychological Foundations of Evidence Law” that the research undermines Holmes’ dubious premise. Moreover, the felony impeachment rule can have a chilling effect on defendants who fear that if they testify, a jury will misuse the felony conviction to conclude not that they are liars but that they are just bad people who have a propensity to commit crimes, regardless of the proof of their guilt. The law otherwise precludes such propensity evidence (“because he did it before, he must have done it this time”) as fundamentally unfair.

Our legal system must embrace efforts to restore justice by helping victims, offenders, their families, and the community move forward and heal. I realize this is not a simple task, especially when the underlying crimes are brutal or deadly, leaving lifelong damage. Yet branding all returning citizens as liars does little more than perpetuate an endless cycle of retribution. It does nothing to heal the wounds that scar so many of those impacted by crime, and the research establishes that it fails to help a jury find the truth. As a society, we can do better.

Let us begin our quest to restore justice by burying Holmes’ notion of humanity and evil. Federal law should restrict felony impeachment only to crimes related to untruthfulness. This reform will help the law shed dehumanizing labels that renew punishment already imposed for past offenses. Men and women who are given a fresh start after prison should not be stigmatized as liars based on a prior felony.

After all, which one of us has never been given a second chance?

Timothy R. Rice is a U.S. magistrate judge and former federal prosecutor who teaches evidence at Temple University’s Beasley School of Law. The views expressed, derived from a Temple Law Review article, are his own. This shortened version of his analysis was originally published July 6, 2017 at \http://www.philly.com/philly/opinion/commentary/courts-must-stop-stigmatizing-all-felons-as-liars-20170706.html