See p. 14 of the agenda for the next meeting of the Evidence Rules Advisory Committee. The proposal would repeal FRE 609 and exclude criminal defendants from FRE 608(b)(1) evidence. The result would be that criminal defendants cannot be impeached with past misconduct to show character for untruthfulness. The draft Committee notes and supporting documents rehearse the criticisms of FRE 609--it deters defendants from testifying and its probative value is questionable. We are a long way from this becoming law--it is one proposal from one professor and would have to go through numerous steps and several years. But it shows the discomfort with character impeachment.
The draft notes state that past misconduct may come in for other purposes, substantive and impeachment, without FRE 609.
Consider the following, which illustrates how we move among categories of credibility: Criminal defendant is on the stand, being crossed in a non-drug case:
Q: Weren't you a drug dealer?
A: No.
Q: Weren't you convicted 14 years ago of felony drug distribution?
Absent 609, how might this evidence be admissible?
We will be returning to the rules committee in the coming days, because other proposals affect FRE 801(d)(1) and FRE 803(4).
