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Models and Limits of Federal Rule of Evidence 609 Reform

Posted by on Monday, November 27, 2023 in Articles, Volume 76, Volume 76, Number 6.

Anna Roberts | 76 Vand. L. Rev 1879

A Symposium focusing on Reimagining the Rules of Evidence at 50 makes one turn to the federal rule that governs one’s designated topic—prior conviction impeachment—and think about how that rule could be altered. Part I of this Article does just that, drawing inspiration from state models to propose ways in which the multiple criticisms of the existing federal rule might be addressed.

But recent scholarship by Alice Ristroph, focusing on ways in which criminal law scholars talk to their students about “the rules,” gives one pause. Ristroph identifies a pedagogical tendency to erase the many humans who turn rules into actions—and indeed life- changing or life-ending actions. With a narrow focus on the rules, as opposed to their enablers and enforcers, we not only miss potential reform opportunities but also potentially obscure behaviors that we may want to scrutinize. Thus, Part II develops proposals for how the behavior of relevant decisionmakers, such as prosecutors and judges, might usefully change—whether or not the language of the rule does.

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Anna Roberts