West Virginia Law Review

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The use of prior criminal convictions to impeach the credibility of a witness is an almost universally applied and time-honored tenet of our evidentiary jurisprudence. Past convictions may not be used substantively to demonstrate criminal propensity; i.e., the likelihood that an individual will engage in criminal conduct based upon his past activities. However any witness giving testimony in a court of law is deemed to have placed his credibility in issue. As a result, in almost all American jurisdictions, a witness' character for truth and veracity may be attacked by proof that he has been convicted of a crime. This theory of impeachment and the myriad standards5 adopted by various courts to implement it work no great mischief when applied to most witnesses. The use of prior crimes to impeach criminal defendants choosing to testify in their own behalf, however, is wrought with problems. If the accused has a past record which may be used to impeach him, his decision whether or not to testify is problematic. If he testifies and is thereby impeached, there is a real danger that the jury will consider the defendant to be the kind of man who would commit the crime charged in the indictment. Jurors may naturally tend to relax the burden of proof commensurate with their distaste for the defendant's past activities. However, if the accused refuses to take the stand in order to avoid the introduction of his past crime, his silence alone may prompt the jury to believe him guilty. Cognizant of the defendant's "dilemma," and against an extremely erratic background of state court guidelines, Congress, in 1975, enacted rule 609 of the Federal Rules of Evidence. Certainly one of the most vigorously debated sections of the federal evidence code rule 609 represents a compromise between the common law felony-misdemeanor rule and the so-called "Luck Doctrine,” which delegates discretion to the trial court to weigh probative value against the prejudicial effect of all convictions. After a "tortured path" through both committee and floor debate, conferees agreed on the bill's final version, which reads in pertinent part: (a) General rule-For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment. Since its enactment, both the operation and theory of rule 609 have been widely criticized. More generally, the advisability using a prior conviction to impeach a testifying criminal defendant has been one of the most seriously debated issues of evidence law. Despite such academic fervor, prior crime impeachment of criminal defendants continues essentially unabated. This article will explore the potential prejudice to which criminal defendants are subjected as a result of the impeachment dilemma and consider the extent to which constitutionally protected rights may be abridged in the process.



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