OPTIONAL: Discussion of Rule 609 from: THE DISPARATE IMPACT OF THE MARYLAND RULES ON BLACK AND BROWN INDIVIDUALS

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Rule 5-609 Impeachment by Evidence of Conviction of Crime

Rule 5-609 sets forth two categories of prior convictions admissible for impeachment: (1) infamous crimes or (2) other crime relevant to the witness’s credibility.235 Infamous crimes include “treason, common law felonies, and other offenses classified generally as crimen falsi.”236 The court determines as a matter of law which crimes are relevant to the witness’s credibility.237 Rule 5-609 further mandates a balancing test between the probative value and unfair prejudice presented by the prior conviction.238

“Prior convictions for the same or similar offenses as the charged offense are not automatically excluded.” This is one of several factors the court considers in determining whether to admit the conviction. 239 Upon admission, “only the name of the conviction, the date of the conviction, and the sentence imposed may be introduced.”240 These limitations are designed to prevent a jury from convicting a defendant based solely on a past criminal record.241

The Problems

 Rule 5-609 permits a questionable chain of inferences: the witness committed a prior crime; therefore, it is more likely that the witness is generally dishonest; therefore, it is more likely that the witness testified untruthfully at the instant trial.242 There are several issues with Rule 5-609 and this permissible chain of inferences.

First, there is little limit to which prior convictions are relevant to impeach.243 Further, the balancing test on the admissibility of prior convictions is subject to judicial discretion; courts must consider several factors when determining admissibility of a prior conviction, and they need not be considered “mechanically or exclusively.”244 The lack of clear guidance creates an expansive field of admissibility that allows courts to inconsistently admit crimes under Rule 5- 609.245 For example, in Jones v. State, the court precluded the defendant from presenting evidence of a victim’s prior attempted murder conviction because the conviction was neither infamous nor relevant to credibility.246 However, in Hairston v. State, the court concluded that manslaughter, on the other hand, was an infamous crime.247

Second, Black and Brown individuals are significantly more likely to be charged and convicted of eligible Rule 5-609 crimes than their white counterparts.248 But, as mentioned throughout this Report, convictions do not always convey culpability because Black and Brown people are selectively arrested, charged, and convicted. 249 Thus, disproportionate law enforcement increases the likelihood that Black and Brown will have impeachable convictions. 250

Moreover, the use of impeachment by prior conviction by prosecutors presents an additional concern for criminal defendants who wish to take the stand in their own defense. Because Black and Brown people are over-represented in the population of criminal defendants and in the population of people who have impeachable convictions, this is another way in which Black and Brown people are harmed by Rule 5-609.

Third, justifications for admission under this rule are based on false assumptions. For a prior conviction to be probative, a factfinder must assume that a conviction reflects commission and culpability of a crime.251 However, we know that this assumption may be unfounded. For example, people plead guilty to crimes they are innocent of to avoid enhanced charges or penalties, such as mandatory minimum sentences.252 On top of that, the rule assumes a relationship between convictions and credibility that may not be well-supported. No empirical data supports the argument that someone with a criminal conviction is more likely to lie on the witness stand than someone with no prior convictions.253

Fourth, it is impossible to separate convictions admitted as relevant to credibility from propensity. As an initial matter, the Rule assumes that factfinders will not use evidence prior convictions as propensity evidence.254 However, despite limiting instructions admonishing juries to consider “infamous crimes”255 to evaluate credibility only, numerous studies reveal that jurors use prior convictions to infer criminal proclivity and frequently ignore or fail to understand limiting instructions.256 Additionally, the Rule itself may require propensity reasoning.257 For example, a party may introduce evidence of a past conviction of perjury precisely to show that the defendant witness lied in the past and is therefore more likely lying now.258 Again, empirical data does not support the assumption that a witness with a prior conviction is more likely to lie than a witness without a prior conviction.259

Fifth, this Rule disproportionately impacts criminal defendants. Defendants without convictions testify more frequently than do those with prior convictions.260 Research reveals that a significant reason defendants, even innocent ones, do not take the stand in their own defense is the allowance of impeachment by prior convictions.261 This is all the more problematic given that, due to racially disparate policing and prosecution, Black and Brown individuals make up a disproportionate percentage of criminal defendants.

Recommendations

The Maryland judiciary needs to recognize the inherent flaws in the impeachment by prior conviction rule and its application. Other states have recognized these flaws and taken steps to correct them. For example, Kansas and Hawaii only allow prosecutors to impeach defendant witnesses by prior conviction if the defendant introduces evidence bolstering his or her credibility.262 Montana has gone as far as to prohibit the use of impeachment by prior conviction.263

Kansas’s Rule 5-609 counterpart states that no criminal defendant can be impeached with a prior conviction unless the defendant first introduces evidence admissible solely for the purpose of supporting his or her credibility.264 Hawaii has a similar rule based on a case law.265 However, both states have run into issues in three areas with the restructuring of the prior conviction rule.266

First, the reformulation created uncertainty about when a defendant has introduced evidence solely for the purpose of credibility.267 For example, a court found that a defendant introduced evidence of his credibility when he mentioned he was an ordained minister and donated money to charity, whereas another defendant who testified that he was honorably discharged from the military was not found to have introduced credibility evidence.268 Second, defense attorneys, prosecutors, and judges either misapply or do not know the rule.269 In one Kansas case, the prosecution, defense counsel, and judiciary all misapplied the rule.270 Third, despite the errors in application, the systems provides no accountability for those errors, because mistrials are rarely granted when prosecutors erroneously use prior convictions for impeachment and courts often find defense counsel and judicial error harmless.271

Montana, on the other hand, went as far as to do away with the use of impeachment by prior convictions for all witnesses.272 Montana decided to ban impeachment by prior conviction because of its low probative value.273 However, the reformulation created new litigation around the legal question of whether the ban violates a criminal defendant’s Sixth amendment right to confront witnesses.274

Even though each of these solutions has created new uncertainties, 275 what remains certain is that this Rule needs to be adjusted to account for the enhanced prejudice it causes criminal defendants. At a minimum, the Rules Committee should change Maryland’s Rule to reflect its federal counterpart, which is significantly more limited. Federal Rule of Evidence 609 does not admit per se any crime that bears on a witness’s credibility.276 Further, the Rules Committee should explicitly mention race as a consideration that judges need to account for when conducting the balancing test between the evidence’s probative value and its prejudicial effect.277

A completely fail-proof reformulation of the Rule of impeachment by prior conviction may not be possible. Thus, in reformulating the Rule or in giving guidance to judges on how to apply it, the judiciary must recognize the detrimental impact the Rule has on Black and Brown people generally, as well as on criminal defendants specifically

Footnotes:

• 235 MD. R. EVID. 5-609(a) (“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party.”).
• 236 State v. Westpoint, 404 Md. 455, 477–78 (2008) (quoting State v. Giddens, 335 Md. 205, 213–14 (1994)).
• 237 Id.
• 238 MD. R. EVID. 5-609(a). 2
• 39 Jackson v. State, 340 Md. 705, 711 (1995).
• 240 Giddens, 335 Md. at 222.
• 241 Jackson, 340 Md. at 715.
• 242 Sampsell-Jones, supra note 224, at 177.
• 243 State v. Giddens, 335 Md. 205, (1994) (in Maryland, impeachable convictions include “infamous crimes” and crimes relevant to credibility).
• 244 Jackson, 340 Md. at 717.
• 245 See John Karpinski, Rosales v. State: Time for a Change, Witness Impeachment by Use of a Prior Conviction, 79 MD. L. REV. ONLINE 101, 108 (2020) (“Maryland Courts have struggled to identify if a crime’s elements specifically identify conduct that bears on the witness’s credibility, and thus, is admissible under rule 5-609.”).
• 246 217 Md. App. 676, 705–6 (2014).
• 247 68 Md. App. 230, 235 (1986).
• 248 See Weihua Li, The Growing Racial Disparity in Prison Time, THE MARSHALL PROJECT (Dec. 3, 2019, 6:00 a.m.), https://www.themarshallproject.org/2019/12/03/the-growing-racialdisparity-in-prison-time.
• 249 See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 FORDHAM L. REV. 13, 37 (1998) (concluding that because of disparities in policing, “the existence or nonexistence of an arrest or conviction record may or may not reflect relative criminality in [B]lack and white defendants”); see also supra notes 44, 173–74 and accompanying text.
• 250 Criminal Justice Fact Sheet, supra note 25.
• 251 Anna Roberts, Conviction by Prior Impeachment, 96 B.U. L. REV. 1977, 1992 (2016).
• 252 Jed Rakoff, Why Innocent People Plead Guilty, N.Y. REV. (Nov. 24, 2014), https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/.
• 253 James E. Beaver & Steven L. Marques, A Proposal to Modify the Rule on Criminal Conviction Impeachment, 58 TEMP. L.Q. 585, 613 (1985)
• 254 Id. at 1992.
• 255 Cure v. State, 421 Md. 300, 324 (2011) (finding arson can be admissible as an “infamous crime”).
• 256 Robert Dodson, What Went Wrong with Federal Rule of Evidence 609: Look at How Jurors Really Misuse Prior Conviction Evidence, 48 DRAKE L. REV. 1, 31 (1999).
• 257 Roberts, supra note 251, at 1984.
• 258 Id. at 1985.
• 259 Beaver & Marques, supra note 253, at 613.
• 260 John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted, 5 J. OF EMPIRICAL LEGAL STUDIES 477, 479 (2008).
• 261 Id. at 491.
• 262 KAN. STAT. ANN. § 60-421; State v. Santiago, 492 P.2d 657, 661 (Haw. 1971).
• 263 MONT. R. EVID. 609.
• 264 KAN. STAT. ANN. § 60-421.
• 265 Santiago, 492 P.2d at 661.
• 266 Roberts, supra note 251, at 2034.
• 267 Id.
• 268 Id. at 2020.
• 269 Id. at 2021.’
• 270 In State v. King, the court granted the State’s motion to admit evidence of the defendant’s prior theft convictions and the defense attorney advised the defendant the State could use her prior conviction during cross-examination to which the judge reiterated was a proper advisement by defense counsel. No. 109,443, 2014 Kan. App. Unpub. LEXIS 494, at *1 (Kan. Ct. App. Jun. 27, 2014).
• 271 Roberts, supra note 251, at 2023.
• 272 MONT. R. EVID. 609 (“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is not admissible”).
• 273 MONT. R. EVID. 609, Commission's Comment ([T]he Commission [on the Rules of Evidence] rejects the rule allowing impeachment by evidence of conviction of a crime … most importantly because of its low probative value in relation to credibility. The Commission does not accept as valid the theory that a person’s willingness to break the law can automatically be translated into willingness to give false testimony”)
• 274 Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rule 609, 15 CARDOZO L. REV. 2295, 2310–11 (1994) (“[W]here an accused offers conviction evidence to impeach a prosecution witness, exclusion of the evidence raises issues under the Confrontation Clause.”); see Davis v. Alaska, 415 U.S. 308, 318 (1974) (holding that refusal to allow the defendant to cross-examine a key prosecution witness to show his probation status following adjudication of juvenile delinquency denied the defendant his constitutional right to confront witnesses).
• 275 See Roberts, supra note 251, at 2034.
• 276 FED. R. EVID. 609.
• 277 Jackson v. State, 340 Md. 705, 717 (1995) (The current factors courts must consider in the balancing test are: “(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the defendant's credibility.”).