Document Type

Working Paper

Publication Date

3-10-2011

SSRN Discipline

Legal Scholarship Network; Criminal Law & Procedure eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Humanities Network; Political Science Network

Abstract

There is a growing call for a "New Legal Realism" that among other things takes a "bottomup" approach to studying the effects of rules of law on the people to whom they actually apply on a daytoday basis The New Legal Realism movement spans across various fields and disciplines related to law The movement is particularly evident in the area of criminal law where there is an increasing effort to ensure reliability and accuracy in the system's results The recent move of some states to require racial impact statements for pending legislation as well as the advocacy and findings of the innocence movement exemplify this effort Even more compelling are the recent lawsuits filed by public defenders in several states citing their inability to represent their clients in a constitutionally effective manner and demanding to have their caseloads reduced until they can be adequately funded This Article aids in the effort to improve our justice system's reliability taking a New Legal Realist approach to the area of evidence law as applied in the criminal settingI explore the interrelationship between plea bargaining and the use of prior convictions to impeach criminal defendants at trial two of the most controversial practices in the criminal justice system The prior conviction impeachment rule is a classic and deeply entrenched evidentiary rule In this Article I rename the Rule dubbing it the "untried conviction" impeachment rule to reflect the reality of its application Indeed the reality "“ overlooked by evidence and criminal law scholars "“ is that prior convictions used in later proceedings to "impeach" criminal defendants are most often untried convictions having resulted from the plea bargaining system I propose a fundamental shift in the application of Rule 609 to reflect this reality Plea bargaining has rightly come under much scrutiny of late and is considered a prominent feature of our current system that processes defendants in an assemblyline fashion I propose that as long as we continue to impeach defendants with their untried convictions Congress and state legislatures should act to exclude from Rule 609's applicability the use of untried convictions Alternatively until lawmakers act courts who are charged with protecting the fundamental rights of criminal defendants must vigilantly scrutinize the practice of impeaching criminal defendants with untried convictions thus utilizing Rule 609 as an additional check on plea bargaining instead of as a rubber stamp

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