The Liar’s Mark: Character and Forfeiture in Federal Rule of Evidence 609(a)(2)

Jesse Schupack*

Rule 609(a)(2) of the Federal Rules of Evidence is an outlier. The Rule mandates admission of impeaching evidence of a witness’s past convictions for crimes of dishonesty. It is the only place in the Rules where judges are denied their usual discretion to exclude evidence on the grounds that its admission would be more prejudicial than probative. This Note analyzes three assumptions underlying this unusual Rule: (1) that there is a coherently definable category of crimes of dishonesty, (2) that convictions for crimes of dishonesty are uniquely probative of a person’s character, and (3) that an assessment of moral character based on past convictions will be suitably predictive of a person’s reliability as a witness. These assumptions are false and so do not justify the mandatory admission of convictions under the Rule. The final Part of this Note argues that Rule 609(a)(2) is better understood as operating on an implicit principle of forfeiture. Recognizing this and modifying the structure of the Rule accordingly cures some of its current defects. But these revisions still leave something deeply concerning about Rule 609(a)(2). The logic of forfeiture substitutes a normative judgment about a particular class of people in place of an evidentiary judgment about the probative value of a certain kind of information. This Note concludes that this substitution is unprincipled and unjust, and that therefore Rule 609(a)(2) should be eliminated.

* J.D. Candidate, May 2021, University of Michigan Law School. Thanks to Conor Bradley, Sherman Clark, Renee Griffin, Timothy Lynch, Kate Markey, Veronica Portillo-Heap, Brian Remlinger, and Ingrid Yin for helpful conversations and comments on earlier versions of this work. Thanks also to the editors of the Michigan Law Review for their careful and helpful editing.