{"id":3036,"date":"2024-06-10T10:00:29","date_gmt":"2024-06-10T14:00:29","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jlpp\/?p=3036"},"modified":"2025-12-20T16:27:39","modified_gmt":"2025-12-20T20:27:39","slug":"the-missing-endpoint-of-rule-609b-bobby-levine","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlpp\/the-missing-endpoint-of-rule-609b-bobby-levine\/","title":{"rendered":"The Missing Endpoint of Rule 609(b) – Bobby Levine"},"content":{"rendered":"\n
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Download a PDF<\/a><\/div>\n<\/div>\n\n\n\n

The Missing Endpoint of Rule 609(b)<\/h2>\n\n\n\n

Bobby Levine*<\/a><\/p>\n\n\n\n

Introduction<\/h2>\n\n\n\n

Federal Rule of Evidence 609(b) (\u201c609(b)\u201d) limits when a lawyer can impeach a witness using their prior criminal convictions.[1]<\/sup><\/a>  To impeach a witness with a prior conviction that is more than 10 years old, there is a heightened standard for admissibility.  The judge must find that its probative value \u201csubstantially outweighs its prejudicial effect.\u201d[2]<\/sup><\/a>  That language may sound familiar.  It is a specialized application of the far less demanding threshold of Rule 403.[3]<\/a>  There is one problem.  The Federal Rules leave judges and lawyers unequipped to measure the age of a conviction.[4]<\/a>  Judges are unable to determine which convictions are more than 10 years old.  This inadequacy requires judges to make purely policy-based decisions that inevitably lead to arbitrary outcomes for litigants and has fueled a circuit split.<\/p>\n\n\n\n

Although the Federal Rules of Evidence provide a start date for measuring the age of a conviction\u2014\u201cthe witness\u2019s conviction or release from confinement for it, whichever is later\u201d\u2014inexplicably, there is no endpoint.[5]<\/sup><\/a>  There is nothing indicating whether a conviction must be 10 years old at the time of the events underlying the instant case, the time of arrest, or indictment, the start of trial, or the beginning of that witness\u2019s testimony.  This ambiguity can cause real differences in whether courts deem impeachment proper, given that the life cycle of a federal case regularly spans a year or more.[6]<\/sup><\/a><\/p>\n\n\n\n

When does this problem arise?  Take the case where a criminal defendant pled guilty to an assault charge on January 1, 2010, and was not sentenced to a term of imprisonment. [7]<\/a><\/sup>  Law enforcement later caught him distributing illegal narcotics in January 2019, and a grand jury indicted him that same month.  As his case proceeded through discovery and motion practice, a little more than a year passed before the trial commenced in the spring of 2020.  Before the trial began, the government filed a motion in limine<\/em> to impeach the defendant using his prior conviction for assault if he took the stand.  The judge\u2019s decision will likely turn on whether the assault conviction is more than 10 years old and, therefore, must satisfy 609(b)\u2019s heightened balancing test for admissibility.  609(b) instructs the judge to start the clock on January 1, 2010, the day the defendant was convicted of assault.  However, whether the conviction is more than 10 years old depends on when the clock stops ticking, which 609(b) leaves unanswered.[8]<\/sup><\/a><\/p>\n\n\n\n

The ambiguity in 609(b) leads to arbitrary evidentiary rulings.  Two similarly situated parties, convicted of the same crime on the same day and later at trial on the same issue, may receive different rulings because they are in a different circuit, district, or even just because they were assigned a different judge.  The prior conviction may be admitted in one instance and ruled inadmissible in the other because, as it is currently written, 609(b) requires judicial discretion to determine the endpoint of the 10 year period.  Because neither the text of the rule, the Advisory Committee Notes, nor the Congressional Reports help solve this problem, judges have no helpful basis for their decision.  They are forced to rely on their instincts as to which endpoint comports with the rule\u2019s purpose and is most desirable from a policy perspective.  In other words, courts cannot look to proper sources of a rule\u2019s meaning to deploy the interpretive tools they are accustomed to using.[9]<\/sup><\/a>  The solution that best remedies this lack of consistency and these arbitrary outcomes is to provide a bright line rule, a specific endpoint, for judges to follow in the Federal Rules of Evidence.<\/p>\n\n\n\n

The admissibility of a prior conviction is significant because it provides powerful evidence that attacks the witness\u2019s credibility.[10]<\/a>  For example, defense attorneys often use Rule 609 to impeach the government\u2019s cooperating witnesses in criminal cases when those witnesses have prior convictions.  It becomes a primary line of attack on cross-examination and often features in the defense\u2019s arguments: The government\u2019s star witness, the cooperator, cannot be trusted because of his criminal past.  Presenting evidence of a prior conviction works just as powerfully when the government attacks a criminal defendant with their criminal history.[11]<\/a>  The import of a court\u2019s admissibility determination under Rule 609 extends to often critical strategy decisions about whether to call a witness that will be subject to impeachment with their prior conviction.[12]<\/a><\/p>\n\n\n\n

Age limits are everywhere and should be easy to implement.  Take, for example, airline tickets.  Many airlines place age restrictions on when toddlers need their own seats and flight tickets.  JetBlue\u2019s policies specify that \u201c[l]ap children under the age of 2 years old at the time of departure<\/em> on U.S. domestic flights do not need to be ticketed.\u201d[13]<\/sup><\/a>  JetBlue provides a workable rule.  If two years or more have passed between the child\u2019s birth and the flight\u2019s departure, the child needs a ticket.  The Federal Rules should mimic this clarity in its age restrictions.<\/p>\n\n\n\n

Part I of this Essay will take a closer look at the text of 609(b).  Part II will offer relevant background information about 609(b) and walk through the Advisory Committee Notes and Congressional Reports.  Part III will describe the current lay of the land among the courts, including a circuit split on this issue.  Finally, Part IV offers independent analysis and ultimately suggests, contrary to recent scholarship,[14]<\/sup><\/a> that 609(b) should be amended to specify that the proper way to measure the age of a conviction is until the date of indictment in a criminal case or complaint in a civil case.<\/p>\n\n\n\n

I.               The Text of 609(b)<\/h2>\n\n\n\n

The Supreme Court has deployed the same methods to interpret the Federal Rules of Evidence as it has any other legislation.[15]<\/sup><\/a>  Therefore, interpreting the Federal Rules of Evidence demands first looking at the plain meaning of the rule,[16]<\/sup><\/a> which means analyzing the text itself.[17]<\/sup><\/a>  Unfortunately, the rule\u2019s text leaves the endpoint of 609(b)\u2019s time limit ambiguous.<\/p>\n\n\n\n

Rule 609(a) sets out the initial scope of impeachment by prior conviction: litigants can use the evidence to attack a witness\u2019s character for truthfulness.  Rules 609(a) and 609(b) then set forth details regarding whether that evidence is admissible based on circumstances that may alter the probative value of the evidence or its prejudicial effect.[18]<\/sup><\/a>  609(b) is titled \u201cLimit on Using the Evidence After 10 Years.\u201d[19]<\/sup><\/a>  The body of 609(b) is divided into two subparts and reads as follows:<\/p>\n\n\n\n

This subdivision (b) applies if more than 10 years have passed since the witness\u2019s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:<\/p>\n\n\n\n

(1)<\/strong> its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and<\/p>\n\n\n\n

(2)<\/strong> the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.[20]<\/sup><\/a><\/p>\n\n\n\n

The first sentence of 609(b) explains when the rule applies.  It provides a variable starting point that depends on the facts of the case.  One would expect to find the endpoint adjacent to the starting time.  Not only is it not in the vicinity of 609(b)\u2019s specified start date, but the endpoint is not found in either subpart of the rule.  The first subpart describes the appropriate balancing test of probative value and prejudicial effect to determine the admissibility of convictions once a court has already determined that a conviction is over 10 years old.  Likewise, the second subpart of 609(b) imposes a notice requirement, which, again, is only relevant once a court determines that a conviction is more than 10 years old.<\/p>\n\n\n\n

While one should first turn to the text to interpret a rule, searching for how to measure the age of a conviction in 609(b)\u2019s enacted language is futile, given its total silence on half the equation\u2014the endpoint.<\/p>\n\n\n\n

II.             History, Notes, and Reports<\/h2>\n\n\n\n

Our judicial system has not always needed to grapple with when to allow impeachment using prior convictions because, at common law, felons or those convicted of misdemeanors involving crimen falsi<\/em> (dishonesty) were not deemed competent witnesses.[21]<\/sup><\/a>  This bar on witnesses with a criminal history testifying (and therefore prior conviction impeachment) was partially rationalized by the idea that those potential witnesses lacked credibility.[22]<\/sup><\/a>  Once convicts were permitted to testify, they could do so on the condition that the opposing side could impeach them using their prior convictions.[23]<\/sup><\/a>  That was before the Federal Rules of Evidence took effect.[24]<\/sup><\/a><\/p>\n\n\n\n

In 1969, an Advisory Committee appointed by the Judicial Conference of the United States submitted its preliminary draft suggesting the initial form of the Federal Rules of Evidence.[25]<\/sup><\/a>  The proposal included Rule 6-09, which eventually became Rule 609.[26]<\/sup><\/a>  The proposed Rule 6-09 already included an age limit that restricted the admissibility of prior convictions for impeachment purposes.[27]<\/sup><\/a>  Unlike the modern rule, Rule 6-09 did not permit impeachment using convictions over 10 years old under any circumstances.[28]<\/sup><\/a>  Similarly to the modern rule, Rule 6-09 specified the starting point for the calculation of the age of a conviction (albeit slightly differently) and lacked any mention of an endpoint.[29]<\/sup><\/a>  The error of failing to specify how to conduct the age calculation for a conviction stems from the original drafting of the rules prepared by the Advisory Committee on Federal Rules of Evidence.<\/p>\n\n\n\n

When the Advisory Committee drafted an initial set of rules, it provided explanatory notes accompanying each proposed rule.[30]<\/sup><\/a>  The note regarding proposed Rule 6-09(b) justified using a time limit by arguing that \u201cpractical considerations of fairness and relevancy demand that some boundary be recognized.\u201d[31]<\/sup><\/a>  The Advisory Committee modeled its proposed federal age limit after a similar proposed but unadopted rule for the California Evidence Code.[32]<\/sup><\/a>  The Advisory Committee provided no insight into how it determined the starting point for measuring the age of a conviction, why it did not include an endpoint, or whether it ever weighed different possible endpoints.<\/p>\n\n\n\n

By 1973, the Advisory Committee had submitted its proposed Federal Rules of Evidence to the Supreme Court, which promulgated the rules and transmitted them to Congress.[33]<\/sup><\/a>  The House failed to catch the Advisory Committee\u2019s oversight.  The House amended 609(b) only to clarify which convictions were admissible impeachment evidence when a witness\u2019s most recent felony was within 10 years but failed to discuss how to measure the age of a conviction under the 10 year rule.[34]<\/sup><\/a>  Before the Federal Rules of Evidence first went into effect in 1975,[35]<\/sup><\/a> Congress made one additional amendment: 609(b) would not create a total bar to impeachment using convictions more than 10 years old and instead would permit admission if \u201cthe probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.\u201d[36]<\/sup><\/a>  The Senate Report accompanying this amendment discussed the purpose of 609(b) (the diminished probative value of older convictions) but made no mention of its application.[37]<\/sup><\/a><\/p>\n\n\n\n

At no point since the Federal Rules of Evidence took effect has 609(b) been amended or even mentioned in Advisory Committee Notes or a Congressional Committee Report.[38]<\/sup><\/a>  The history of this rule, just like its text, remains devoid of any information that could reasonably assist the interpretation of how to calculate the age of a conviction.<\/p>\n\n\n\n

III.           The Circuit Split<\/h2>\n\n\n\n

Several circuits have already been confronted with 609(b)\u2019s nonexistent endpoint, and each has decided the endpoint in its respective circuit.  While most of these cases have determined that the endpoint is the start of trial, there has not been a unanimous answer, with some courts using the offense date or the indictment date.  Additionally, in some cases, courts managed to avoid interpreting 609(b) by deciding the case on other grounds.  While no circuit has binding precedent that mandates using the arrest date or date of testimony as endpoints, there is dicta that suggests courts would be justified in using those endpoints in the future.  A common theme is that none of the cases that have addressed 609(b)\u2019s endpoint looked carefully at the text or history of the rule, and rarely did they engage in a comprehensive policy discussion that weighed the merits of the competing options.  Instead, many of the opinions fail to adequately grapple with the issue presented in this paper.  The remainder of this section provides a closer look at these rulings.<\/p>\n\n\n\n

A.    Start of Trial<\/h3>\n\n\n\n

The First Circuit, in United States v.<\/em> Nguyen<\/em>, used the start of trial as the endpoint for measuring the age of a conviction under 609(b).[39]<\/sup><\/a>  In that case, the defendant appealed the exclusion of a victim-witness\u2019s prior conviction.[40]<\/sup><\/a>  The clock started running in May 1996, the date of the conviction, because the witness received a nonjail sentence and therefore, there was no period of confinement.[41]<\/sup><\/a>  Nguyen\u2019s trial started in June 2006, and the First Circuit used that as the endpoint, which placed the prior conviction just outside the 10 year limit at 10 years and one month old.[42]<\/sup><\/a>  Using the offense date of June 2005 or the date of indictment in December 2005 would have compelled a different result; the prior conviction would not have been stale.[43]<\/sup><\/a><\/p>\n\n\n\n

While the Nguyen<\/em> opinion does not include a textual or historical analysis of the rule to reach its conclusion, it does contain two policy justifications.  First, the opinion focuses on the need for consistency across cases by focusing on the \u201cbright line\u201d that 609(b) draws.[44]<\/sup><\/a>  It rejects any case-specific \u201credrawing\u201d even in close cases, like Ngyuyen\u2019s, because \u201cwhenever the law draws a line, some events will fall on the \u2018other\u2019 side.\u201d[45]<\/sup><\/a>  This explains a preference against using different endpoints depending on case-specific circumstances.  Second, the opinion suggests that its use of the trial date as the endpoint is informed by ensuring judicial economy and avoiding undue delay.[46]<\/sup><\/a>  While the Nguyen <\/em>court would have looked unfavorably upon scheduling gamesmanship designed to make a prior conviction too old for admissibility, it found that \u201c[t]here [was] no suggestion here that the government manipulated the calendar or the scheduling process in order to postpone the trial and allow the clock to run.\u201d[47]<\/sup><\/a><\/p>\n\n\n\n

Several opinions reached the same conclusion as Nguyen<\/em> but provided essentially no analysis.  For example, two Third Circuit opinions use the start of trial as the endpoint for 609(b) without any discussion of the content of the rule or prior precedent.  United States v. Williams<\/em> effectively rewrites 609(b) without explanation by declaring, \u201c609(b) prohibits impeachment based on convictions for which the witness was confined and released more than ten years prior to trial<\/em>.\u201d[48]<\/sup><\/a>  United States v. Hans<\/em> makes an almost identical maneuver by only citing 609(b) itself to support a conclusion that a prior conviction is within the time limit if \u201cthe conviction or the witness\u2019 release from prison occurred within 10 years of the trial<\/em>.\u201d[49]<\/sup><\/a>  The Fifth,[50]<\/sup><\/a> Seventh,[51]<\/sup><\/a> Eighth,[52]<\/sup><\/a> and Ninth[53]<\/sup><\/a> Circuits have made similar bare-bones decisions using the start of trial as 609(b)\u2019s endpoint.  As previously discussed, there is no support for this proposition in the text or history of 609(b).<\/p>\n\n\n\n

The decisions based on insufficient analysis or support from the Federal Rules of Evidence were path-making: largely decided shortly after the Federal Rules of Evidence took effect,[54]<\/sup><\/a> later cases continue to cite this first generation as adequate support for using the start of trial as 609(b)\u2019s endpoint, even when they are not binding.[55]<\/sup><\/a>  In United States v. <\/em>Watler<\/em>, the Eighth Circuit demonstrated how a dangerous feedback loop of citations can continue.[56]<\/sup><\/a>  In that case, the defendant was indicted in 2003, less than 10 years after his prior theft conviction, and tried in 2005, more than 10 years after the theft conviction.[57]<\/sup><\/a>  The defendant argued that the trial court erred by calculating the age of his conviction using the date he was indicted as the endpoint.[58]<\/sup><\/a>  The Eighth Circuit seems to agree with the defendant because \u201c[m]ost of the cases interpreting Rule 609\u201d find that \u201cthe ten-year time limit should be measured [using the date that the trial begins].\u201d[59]<\/sup><\/a>  The opinion does not evaluate the reasoning contained in any of the prior cases it cites, and only one case cited came out of the Eighth Circuit and would arguably be binding.[60]<\/sup><\/a>  Thankfully, this deference to poorly reasoned and merely persuasive prior caselaw was just dicta because the defendant testified about his prior conviction on direct examination and, therefore, could not contest its admission on appeal.[61]<\/sup><\/a><\/p>\n\n\n\n

B.     Offense Date<\/h3>\n\n\n\n

Although it is not as common of an endpoint, the Eighth Circuit has used the date of the offense that is the subject of the trial where the impeachment evidence is offered.[62]<\/sup><\/a>  Again, United States v. <\/em>Foley<\/em> is an example of a case that picks an endpoint without critically engaging with 609(b) or other case law.[63]<\/a>  Without a detailed discussion, the opinion finds that \u201cFoley was released from this conviction ten years and ten months before the present offense,\u201d and as a result, concludes that \u201c[609(b)] makes the time period in this case ten years and ten months.\u201d[64]<\/sup><\/a>  It is more excusable to omit a comprehensive analysis of 609(b) in this instance because the offense date is the earliest reasonable endpoint a court may use.  So, if Foley\u2019s prior conviction was beyond the 10 year time limit when measured in this manner, the conviction would undoubtedly be more than 10 years old using any alternative (and later) date.  However, the Foley<\/em> court never asserted that the offense date is the correct endpoint to use when applying 609(b) nor did it clarify whether it used the offense date merely to illustrate that the choice of which endpoint to use would not have had an effect on the admissibility of the prior conviction in this case.<\/p>\n\n\n\n

A Fifth Circuit dissent also suggested that an offense date endpoint would be \u201cthe appropriate closing date\u201d for measuring convictions under 609(b) if the court were deciding the case on a \u201cclean slate.\u201d[65]<\/sup><\/a>  Judge Fay did not make this claim based on 609(b)\u2019s text but provided a policy justification for this endpoint and reasoning based on the rule\u2019s purpose.[66]<\/sup><\/a>  Like the First Circuit in Nguyen<\/em>,[67]<\/sup><\/a> Judge Fay was concerned about incentivizing a delay in proceedings and thought that \u201c[a]ny other formula serves to reward the felon for delaying prosecution by any means possible.\u201d[68]<\/sup><\/a>  Judge Fay also invoked 609(b)\u2019s purpose, arguing that \u201c[i]f prior convictions lose their probative value for impeachment purposes because of ten years of \u2018good behavior,\u2019\u201d we should be measuring the endpoint of 609(b) based on the time period of \u201cunquestioned good behavior.\u201d[69]<\/sup><\/a>  This proposal builds off of Congress\u2019s proffered reasoning for 609(b):  It is not that a conviction becomes less probative based on age alone; prior convictions lose probative value when time passes, and<\/em> there are no intervening bad acts. [70]<\/a><\/sup><\/p>\n\n\n\n

C.    Date of Indictment<\/h3>\n\n\n\n

Multiple circuits appear to have used the date of indictment as 609(b)\u2019s endpoint but did not explain their process for doing so nor explicitly hold that the date of indictment is the proper way to interpret 609(b)\u2019s ambiguous endpoint.[71]<\/sup><\/a>  For example, in United States v. Ras<\/em>, the Seventh Circuit simply mentions the March 16, 1982 date of indictment and proceeds to find that the defendant\u2019s prior conviction, for which he was released from confinement in August 1972, was within the 10 year time limit of 609(b).[72]<\/sup><\/a>  While the opinion also mentions when the second offense likely occurred, it does not seem to use the offense date as 609(b)\u2019s endpoint, given that there is only a date range for the offense.[73]<\/sup><\/a>  In contrast to the seventeen month span when the defendant\u2019s conduct may have occurred, the day the grand jury returned an indictment is precise.<\/p>\n\n\n\n

Although it was not used as an endpoint in the Tenth Circuit, dicta from that court presents various competing arguments on this matter and suggests that 609(b)\u2019s clock \u201cshould be tolled at indictment in order to discourage dilatory tactics.\u201d[74]<\/sup><\/a>  Again, the desire to avoid unnecessary scheduling tactics is playing a central role in this debate, but with a different conclusion about which endpoint best serves that objective.[75]<\/sup><\/a><\/p>\n\n\n\n

D.    Avoidance and Other Dicta<\/h3>\n\n\n\n

Several cases have managed to avoid analyzing 609(b) to determine its endpoint either because they are bound by precedent or because the case could be decided on other grounds.  These cases still often provide dicta that illuminates the normative discussion of 609(b)\u2019s endpoint.  For example, in United States v. <\/em>Cathey<\/em>, the Fifth Circuit was bound by prior circuit precedent to use the start of trial as the endpoint for measuring the age of a conviction.[76]<\/sup><\/a>  The Cathey<\/em> court acknowledged that precedent and provided a policy-based counterargument in dicta.[77]<\/sup><\/a>  It suggested that a more logical endpoint may be the date of the witness\u2019s testimony because the \u201cconcern is the [witness\u2019s] credibility when he testifies.\u201d[78]<\/sup><\/a>  Although this may seem like a trivial difference, it may impact whether a prior conviction is more or less than 10 years old because \u201cin a protracted trial [the start of trial] might be considerably earlier\u201d than when a given witness takes the stand.[79]<\/sup><\/a><\/p>\n\n\n\n

The Eighth Circuit in United States v. Griffin<\/em> also managed to defer ruling on 609(b)\u2019s endpoint after the trial judge sustained a defense objection to the prosecutor\u2019s cross-examination of the defendant about a prior assault conviction.[80]<\/sup><\/a>  Griffin, the defendant, was released from confinement for the prior conviction 10 years and one month before the trial but was indicted within the 10 year period.[81]<\/sup><\/a>  The district court sustained the objection and provided a limiting instruction to the jury because it ruled that the endpoint of 609(b) is the start of the trial, not the date of the indictment.[82]<\/sup><\/a>  The Eighth Circuit, on review, found that the unanswered cross-examination questions did not prejudice Griffin.  This finding allowed the appellate court to refrain from evaluating 609(b)\u2019s endpoint.[83]<\/sup><\/a><\/p>\n\n\n\n

Additionally, the Tenth Circuit has avoided this issue after acknowledging 609(b)\u2019s ambiguity by first concluding that the district court did not abuse its discretion in finding that the probative value of the prior conviction substantially outweighed its prejudicial effect, so it was admissible regardless of its age.[84]<\/sup><\/a>  So, starting the admissibility analysis by first conducting the more stringent balancing test in 609(b) may render the age of the prior conviction moot.<\/p>\n\n\n\n

Lastly, the Third Circuit recently used the standard of review to avoid revisiting 609(b)\u2019s endpoint.[85]<\/sup><\/a>  United States v. Thomas<\/em> involved prior convictions that would have been within the 10 year limit if measured at the time of the offense date but were beyond the 10 year limit by the start of trial.  The Third Circuit found that the trial court allowing questioning regarding the prior convictions created harmless error and avoided interpreting 609(b) or opining on its endpoint.[86]<\/sup><\/a><\/p>\n\n\n\n

IV.           The Path Forward<\/h2>\n\n\n\n

609(b)\u2019s ambiguity, the arbitrary results it compels, and the circuit split it produced demand an amendment to the Federal Rules of Evidence to create uniformity in 609(b)\u2019s application using the most desirable endpoint from a policy perspective.  This section explains why a carefully crafted amendment is preferable to the status quo and sets forth a proposed amendment to 609(b).<\/p>\n\n\n\n

A.    609(b) Should Be Amended<\/h3>\n\n\n\n

While 609(b) is subject to multiple interpretations, that alone does not justify an amendment to the rule.  The amendment process is resource intensive, requires judges and lawyers to become familiar with the new rule, and may create new ambiguity if the new language is not well drafted.  In many instances, that is \u201ctoo much work for too little payoff.\u201d[87]<\/sup><\/a>  However, on certain occasions, amendments are justified despite \u201cthe transaction costs inherent in rule changes.\u201d[88]<\/sup><\/a>  Professors Daniel Capra and Liesa Richter have persuasively argued that \u201cwhen a conflict [among courts] is long-standing, shows no signs of being resolved, and creates divergent standards for litigants operating within the same court system, it is a drafting committee’s responsibility to resolve the impasse.\u201d[89]<\/sup><\/a><\/p>\n\n\n\n

609(b) meets this standard for amendment.  This issue has created a longstanding conflict, given that courts have offered differing opinions across several decades.[90]<\/sup><\/a>  There are no signs of resolution, with some circuits locked into panel precedent[91]<\/sup><\/a> and no realistic expectation of en banc <\/em>review or that the Supreme Court will settle the circuit split.[92]<\/sup><\/a>  Additionally, federal litigants across the country face divergent (and in some cases unknown) standards because of the circuit split and remaining undecided circuits. Thus, an amendment is the appropriate resolution.<\/p>\n\n\n\n

Some may argue that setting an endpoint will carry with it negative externalities, like pretextual scheduling tactics, which make an amendment more trouble than it is worth.  That argument is unpersuasive because any risk of gamesmanship would be limited if 609(b) specified an endpoint at the date of indictment.[93]<\/a>  Most importantly, the minimal risk of gamesmanship accompanying that endpoint is outweighed by the negative impact of arbitrary rulings, which are unavoidable when 609(b)\u2019s current ambiguous language controls.<\/p>\n\n\n\n

Amending 609(b) to set an endpoint will not strip judges of all their discretion\u2014they will retain discretion when applying the appropriate standard and balancing the probative value and prejudicial effect of the prior conviction.  An amendment to set an endpoint will simply limit judicial discretion to when the judge is applying the admissibility standard.  The judge will not also be able to exercise discretion in measuring the age of a conviction, which determines the standard to apply.  When judges exercise their discretion while balancing the probative and prejudicial value of a prior conviction, they are doing so in a manner specifically afforded to them by the Federal Rules of Evidence.  On the other hand, maintaining discretion in determining 609(b)\u2019s endpoint lacks such a justification and leaves judges unconstrained by anything internal to the rule to guide their analysis or ground the explanations for their rulings.<\/p>\n\n\n\n

B.     The Proposed Amendment<\/h3>\n\n\n\n

609(b) should be amended to read as follows: \u201cThis subdivision (b) applies if, by the date of indictment in a criminal case or the date of complaint in a civil case<\/u>, more than 10 years have passed since the witness\u2019s conviction or release from confinement for it, whichever is later.\u201d<\/p>\n\n\n\n

This amendment should be adopted because the date of indictment is the best endpoint for 609(b) from a policy perspective and is the option that best comports with the purpose of the Federal Rules of Evidence.  The purpose of the Federal Rules of Evidence is to ensure that courts can \u201cadminister every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.\u201d[94]<\/sup><\/a>  To ensure fairness, it is important that any amendment sets the same endpoint for both plaintiffs and defendants.  Setting the endpoint as the date of indictment does this.  Admittedly, so do other proposals like the offense date, arrest date, start of trial, or date the witness testifies.[95]<\/a>  None of these options are necessarily defense-friendly or prosecution-friendly alternatives because any litigant can use 609(b) to impeach a witness using a prior conviction.[96]<\/sup><\/a>  So, setting a consistent endpoint will, on the whole, lead to fair outcomes that may favor the prosecution in some cases and the defendant in others.<\/p>\n\n\n\n

A more central concern when setting an endpoint should be avoiding undue delay or scheduling gamesmanship like pretextual continuances of trial or motion deadlines.  Multiple appellate decisions have raised this point when addressing where to set 609(b)\u2019s endpoint.[97]<\/sup><\/a>  Setting the endpoint at the date of indictment carries a very minimal risk of gamesmanship.  To begin, defendants are powerless to manipulate the indictment date, so this amendment immediately limits who<\/em> can engage in dilatory tactics.<\/p>\n\n\n\n

Additionally, the best way to avoid delay tactics from the prosecution is to set the endpoint as early in the lifecycle of a case as possible because the incentives to manipulate scheduling are lower when it is unclear if there will even be a trial and, if there is, who will testify and be subject to impeachment by a prior conviction.  At the point of indictment, the odds of a case going to trial are exceedingly slim\u2014in 2022, only 2.3% of federal criminal defendants went to trial.[98]<\/sup><\/a>  True, the date of indictment is not the earliest possible endpoint; the date of the offense conduct is earlier, so one may argue that even using the indictment date rewards delay.[99]<\/sup><\/a>  However, the date of indictment is the earliest viable endpoint because the offense date often cannot easily be determined, if at all.[100]<\/sup><\/a>  This fatal flaw makes the offense date, the only earlier endpoint, an unadministrable option.<\/p>\n\n\n\n

Not only is it unlikely, at the time of indictment, that a case will involve impeachment with a prior conviction, but prosecutors also face practical hurdles if they want to adjust when they seek an indictment.  One may argue that if a prosecutor really wanted to ensure they could impeach a defendant using a prior conviction, they would rush to indict and capture the prior conviction within the 10 year period.  However, prosecutors are constrained by their evidence and the grand jury process.  The grand jury is already an established check on prosecutors\u2019 ability to expedite indictments because prosecutors cannot get a true bill without first showing probable cause that the accused person committed a crime.<\/p>\n\n\n\n

If prosecutors want to delay getting an indictment to decrease the likelihood that a government witness\u2019s prior conviction will be admissible, they face significant tradeoffs that make the prospect of gamesmanship an unattractive decision.  Prosecutors with enough evidence to get an indictment are unlikely to delay going to a grand jury and risk the prospect that the suspect will either flee or continue to commit crime.  The possibility of flight would require prosecutors and investigators to monitor the suspect and expend resources for a remote possible benefit.  Prosecutors will generally be unwilling to put the public at risk by delaying an indictment and providing the suspect the opportunity to engage in more criminal activity.  Prosecutors face greater risks from delaying an indictment than the improbable reward of being able to use a defendant\u2019s prior conviction if the case proceeds to trial.<\/p>\n\n\n\n

This proposed amendment includes a separate but analogous endpoint for civil cases because there will not be an indictment in those cases.  While litigants will impeach using prior convictions more frequently in criminal cases (where the defendant and other witnesses are more likely to have prior convictions), 609(b) can be used in civil cases as well.[101]<\/sup><\/a>  The filing of a complaint is the most appropriate civil analog to an indictment and consistency is desirable.  Given that 609(b) is more frequently applicable in criminal cases, the policy implications for criminal cases should be of greater concern.  But, consistency is not the only justification.  The same incentives present in criminal cases counsel setting 609(b)\u2019s endpoint in civil cases at the date of complaint.  It is an early endpoint that does not present a substantial opportunity for gamesmanship and schedule manipulation.  In fact, an even smaller proportion of federal civil cases than federal criminal cases are resolved at trial.[102]<\/sup><\/a><\/p>\n\n\n\n

C.    Analysis of Alternative Endpoints<\/h3>\n\n\n\n

Each other potential endpoint for 609(b) will have a comparatively worse impact.  Let\u2019s take a look at each option.  To begin, the offense date is a seemingly attractive option because it is even earlier than the date of indictment.[103]<\/sup><\/a>  Since it occurs so far in advance of a potential trial, a defendant would be unlikely to shift the timing of their conduct to avoid later impeachment at a trial that almost certainly will not take place.  However, this is not an administrable rule because the offense date is very often an offense date range<\/em>.  For example, a defendant may be charged with narcotics offenses with the underlying conduct consisting of sales on multiple days.[104]<\/sup><\/a>  In that instance, which date would courts use as 609(b)\u2019s endpoint?  Even if one were to propose an amendment that tied 609(b)\u2019s endpoint to the start of the offense conduct, that would require a close look at the merits of the case, likely during a Rule 104(a) hearing,[105]<\/a> to conduct the 609(b) age measurement.  Such a process would be a colossal waste of time and resources.  The inability to easily reduce the offense date to a single date dooms its viability as an endpoint for 609(b)\u2014it would eliminate the current ambiguity but create a new headache by forcing courts to make robust factual determinations to apply the amended rule.<\/p>\n\n\n\n

The arrest date, similar to the offense date, would create new problems if used as the endpoint for measuring the age of a conviction.  First, there is no arrest in a civil case, so any amendment that implements the arrest date as the endpoint in criminal cases would need to specify a different endpoint that courts would apply in civil cases.  There is no clear analog to an arrest in a civil case, unlike using the date of a criminal indictment as the endpoint, which is mirrored by a civil complaint because both are case-initiating documents.  Second, using the arrest date as the endpoint would reward a defendant who delayed his arrest through wrongdoing.  However, courts, effectuating Congress\u2019 purpose, should not reward defendants for wrongdoing by allowing the 609(b) clock to keep ticking while they evade arrest.[106]<\/sup><\/a>  Like an amendment to use the offense date as an endpoint, using the arrest date would occasionally necessitate hearings to determine factual preliminary questions, in this instance, whether a delay in the arrest resulted from a defendant\u2019s \u201cvoluntary wrongful act.\u201d[107]<\/sup><\/a>  On the other hand, the date of indictment presents no such externality because it is a fixed point regardless of the length of the defendant\u2019s alleged conduct or the timing of their arrest.<\/p>\n\n\n\n

The start of trial, the most common current option, is an undesirable endpoint for 609(b) because it is far enough along a case’s lifecycle to incentivize dilatory tactics.  Once it is clear that a trial will take place, litigants will have more confidence in their need to manipulate the litigation schedule to ensure impeachment using a prior conviction will be permitted or to attempt to avoid such impeachment.  While the First Circuit has used the start of trial as an endpoint in a case where \u201cthe government [did not] manipulate[] either the calendar or the scheduling process in order to postpone the trial and allow the clock to run,\u201d that was a real risk that required a factual determination by the judge.[108]<\/sup><\/a>  While there may not have been gamesmanship in that specific case, neither the litigants nor panel argued that using the start of trial, on the whole, avoids incentivizing delay compared to earlier alternatives.[109]<\/sup><\/a>  Litigants have various tools at their disposal before a trial begins to protract proceedings, including additional motion practice, slow-rolling discovery, requesting distant deadlines, or requesting adjournments.  Given courts\u2019 concern about parties using gamesmanship to conform with 609(b)\u2019s time limit and the ideal of the Federal Rules of Evidence to promote an efficient judicial process,[110]<\/a> the date of the indictment is the preferable endpoint.[111]<\/sup><\/a><\/p>\n\n\n\n

The latest option for 609(b)\u2019s endpoint is at the start of the witness\u2019s testimony.  This endpoint is a poor choice for the same reasons that the start of trial is\u2014as time passes, it becomes more and more apparent that the prior conviction will actually be used to impeach the witness, so the parties have a greater incentive to manipulate the trial schedule.  Litigants have even more options to delay proceedings by the time a particular witness testifies.  For example, they could rearrange their witness order or try to prolong the trial.  Professors Daniel Capra and Jessica Berch have advocated for an amendment to 609(b) that would set the endpoint \u201con the day the witness first testifies.\u201d[112]<\/sup><\/a>  They reason that this is the most appropriate endpoint because \u201cthe concern is the [witness\u2019s] credibility when he testifies.\u201d[113]<\/sup><\/a>  However, all of the proposed endpoints discussed in this Essay capture that policy objective.  Earlier endpoints, like the date of indictment, still allow jurors to assess the witness\u2019s credibility when they testify.  Additionally, earlier endpoints also provide a consistent rule for all litigants and allow jurors to assess witness\u2019s credibility at the moment they are on the stand.<\/p>\n\n\n\n

One difference between using the date a witness testifies as the endpoint and other alternatives is that earlier endpoints allow more convictions to be used for impeachment.  Even if one thinks that effect is cause for concern, it is not a strong reason to oppose earlier endpoints.  The most logical method of addressing concerns about the number of admissible convictions (whether one thinks it is too many or too few) is to adjust the 10 year time limit as necessary.  Any amendment to 609(b) can address those concerns by simultaneously setting an endpoint and altering the existing time limit.  This approach is preferable because the time limit\u2019s purpose is to set the bounds of admissibility while the starting point and end point function as tools of administrability\u2014their purpose should be to facilitate a court\u2019s ability to apply the time limit.  If one is concerned that earlier endpoints will classify too many prior convictions as properly admissible impeachment evidence, the more appropriate manner of dealing with that is to shorten the time limit to less than 10 years, as the Advisory Committee and Congress see fit.  The remedy should not be to set a later endpoint, thus allowing scheduling tactics to control evidentiary rulings.<\/p>\n\n\n\n

Professors Capra and Berch briefly address the risk of gamesmanship, writing, \u201c[t]he Advisory Committee Note might comment on the inherent power of the courts to prohibit gamesmanship, such as strategic attempts to \u2018run out the time clock\u2019 by delaying the witness’s testimony.\u201d[114]<\/sup><\/a>  This suggestion is inadequate to deal with a primary concern their proposed amendment creates.  While courts do have inherent power to limit gamesmanship, in practice, it will prove difficult for courts or opposing counsel to distinguish gamesmanship from proper scheduling discussions.  If litigants have pretextual reasons for a scheduling request, they are unlikely to admit to them and instead will mask their requests in legitimate logistical concerns.  For example, parties can request more time to produce discovery or file a motion that may have plausible justifications but may truly be fueled by a desire to work around 609(b).  Additionally, witness orders at trial routinely change for the logistical needs of the witnesses, something that is rarely closely scrutinized by courts.  While judges certainly have the power to limit the gamesmanship that would result from setting the endpoint at the time the witness testifies, effectively exercising that power would require some investigating or initial proof that is unlikely to exist.<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

In its current form, Federal Rule of Evidence 609(b) leaves courts and litigants confused about its proper application.  It is impossible to accurately calculate the age of a prior conviction, often a determining factor in the conviction\u2019s admissibility, without knowing where to start and where to end<\/em>.  This ambiguity requires an amendment to the rule, given the arbitrary evidentiary rulings it has caused, and the circuit split that has gone unresolved for decades with no sign of a resolution in the future.  The most effective amendment to 609(b), which would avoid creating new problems in administrability or incentivizing inefficiencies, would set the endpoint at the date of indictment in a criminal case or the date of complaint in a civil case.<\/p>\n\n\n\n

*<\/a> J.D. Candidate, Harvard Law School (2025). I am extremely grateful to Esther Levine, Professor Emily Schulman, Professor Lisa Kern Griffin, Tom Koenig, and Marcos Mullin for their helpful comments and support. Any errors are my own.<\/p>\n\n\n\n

[1]<\/sup><\/a> Fed. R. Evid. 609(b).<\/p>\n\n\n\n

[2]<\/sup><\/a> Id.  <\/em>While this standard for admitting convictions that are more than 10 years old is not necessarily dispositive, it creates a massive barrier to admissibility because it is presumed that convictions lose their probative value for impeachment as they age.  It is that probative value that must \u201csubstantially outweigh [the prior conviction\u2019s] prejudicial effect.\u201d   <\/em><\/p>\n\n\n\n

[3]<\/a> Fed. R. Evid. 403 (allowing courts to exclude<\/em> evidence if \u201cits probative value is substantially outweighed by . . . unfair prejudice\u201d); See <\/em>Fed. R. Evid. 609(a)(1)(A)\u2013(B) (governing the admissibility of convictions that are less than 10 years old and mandating their admissibility for impeachment purposes under less strict standards that balance the conviction\u2019s probative value and prejudicial effect).<\/p>\n\n\n\n

[4]<\/a> Much ink has been spilled about the fairness of Rule 609.  See, e.g.<\/em>, Jeffrey Bellin, Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions<\/em>, 42 U.C. Davis L. Rev. 289, 290 (2008) (claiming that Rule 609 \u201cunnecessarily deter[s] defendants from testifying and improperly penalize[es] those who do take the witness stand\u201d); Alan D. Hornstein, Between Rock and A Hard Place: The Right to Testify and Impeachment by Prior Conviction,<\/em> 42 Vill. L. Rev. 1, 61 (1997) (same).  Several scholars have gone as far as seeking to abolish Rule 609 entirely.  See, e.g.<\/em>, Richard Friedman, Character Impeachment Evidence: Psycho-Bayesian (!?) Analysis and a Proposed Overhaul<\/em>, 38 UCLA L. Rev. 637, 639 (1991) (arguing that \u201crule 609 should be repealed\u201d); Anna Roberts, Conviction by Prior Impeachment<\/em>, 96 B.U. L. Rev. 1977, 1978 (2014) (proposing \u201cabolition\u201d based on three state models).  This Essay instead focuses on a problem related to the application of 609(b) that has received considerably less attention.  The scope of this argument is more limited and is intended to be helpful for judges, litigants, practicing attorneys, and those who think that Rule 609 should be improved, not discarded.<\/p>\n\n\n\n

[5]<\/sup><\/a> Fed. R. Evid. 609(b).<\/p>\n\n\n\n

[6]<\/sup><\/a> Christopher Slobogin, The Case for A Federal Criminal Court System (and Sentencing Reform<\/em>), 108 Cal. L. Rev. 941, 946\u201347 (2020) (\u201c[T]he median time from initiation of a traditional criminal case to its termination at the district court level has skyrocketed by more than 200 percent . . . to over seven months.\u201d).<\/p>\n\n\n\n

[7]<\/sup><\/a> This example assumes the case is in a jurisdiction that has not yet ruled on this issue.  Of course, a trial judge is bound by circuit precedent to the extent it exists.<\/p>\n\n\n\n

[8]<\/sup><\/a> It is not uncommon for a case to straddle the 10 year time limit of 609(b) in this manner.  See, e.g.<\/em>, United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006) (defendant was indicted within the 10 year period but released from confinement for the prior conviction 10 years and one month before the trial); United States v. Nguyen, 542 F.3d 275, 278 (1st Cir. 2008) (witness was convicted with no confinement imposed 10 years and three weeks before commencement of the appellant\u2019s trial); United States v. Thomas, 815 F. App\u2019x 671, 676\u201378 (3d Cir. 2020) (prior conviction occurred more than 10 years before trial but less than 10 years before the alleged offense conduct).  Additionally, this issue is present in many cases even if it is not raised by litigants or addressed in a written opinion.  It is pertinent any time a witness testifies in a case, criminal or civil, if they have a prior conviction that is in the vicinity of the 10 year mark.<\/p>\n\n\n\n

[9]<\/sup><\/a> Edward J. Imwinkelried, A Brief Defense of the Supreme Court\u2019s Approach to the Interpretation of the Federal Rules of Evidence<\/em>, 27 Ind. L. Rev. 267, 273 (1993) (arguing that the Supreme Court has correctly applied a textualist approach to interpreting the Federal Rules of Evidence); Edward J. Imwinkelried, Moving Beyond \u201cTop Down\u201d Grand Theories of Statutory Construction: A \u201cBottom Up\u201d Interpretive Approach to the Federal Rules of Evidence<\/em>, 75 Or. L. Rev. 389, 391 (1996) (\u201cAlthough Justices routinely consider extrinsic material such as Advisory Committee Notes and congressional committee rules, they ordinarily interpret the language of the rules according to their plain meaning, unless a literal construction would lead to an absurd, or perhaps even an unconstitutional, result.\u201d).<\/p>\n\n\n\n

[10]<\/a> Ric Simmons, An Empirical Study of Rule 609 and Suggestions for Practical Reform<\/em>, 59 B.C. L. Rev 993, 994 (2018) (finding, based on survey results, that \u201ccrimes of theft have a high probative value for proving lack of credibility\u201d).<\/p>\n\n\n\n

[11]<\/a> Hornstein, supra<\/em> note 4 at 1 (\u201cIf the jury learns that a defendant previously has been convicted of a crime, the probability of conviction increases dramatically.\u201d).<\/p>\n\n\n\n

[12]<\/a> Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: \u201cHere I Go Down That Wrong Road Again\u201d<\/em>, 74 N.C. L. Rev. 1559, 1632 (1996) (\u201cThe principal reason why defendants refuse to take the stand is that they fear impeachment with prior convictions.\u201d); Gordon Van Kessel, Adversary Excesses in the American Criminal Trial<\/em>, 67 Notre Dame L. Rev. 403, 482 (1992) (\u201c[C]onviction impeachment can be a powerful deterrent to taking the witness stand.\u201d).<\/p>\n\n\n\n

[13]<\/sup><\/a> Ticketing Policies<\/em>, JetBlue (Jan. 14, 2024), https:\/\/www.jetblue.com\/travel-agents\/ticketing-policies (emphasis added).<\/p>\n\n\n\n

[14]<\/sup><\/a> Daniel J. Capra & Jessica Berch, It\u2019s A Code: Amending the Federal Rules of Evidence to Achieve Uniform Results<\/em>, 58 Wake Forest L. Rev. 549, 563 (2023) (advocating for an amendment that sets 609(b)\u2019s endpoint \u201con the day the witness first testifies\u201d).<\/p>\n\n\n\n

[15]<\/sup><\/a>  Glen Weissenberger, The Supreme Court and the Interpretation of the Federal Rules of Evidence<\/em>, 53 Ohio St. L.J. 1307, 1311\u201312 (1992).<\/p>\n\n\n\n

[16]<\/sup><\/a> See <\/em>Bourjaily v. United States, 483 U.S. 171, 178 (1987) (determining that Rule 104 \u201cmean[s] what it says\u201d and declining to \u201crequire legislative history to confirm<\/em> the plain meaning\u201d); Randolph N. Jonakait, The Supreme Court, Plain Meaning, and the Changed Rules of Evidence<\/em>, 68 Tex. L. Rev. 745, 749 (1990).<\/p>\n\n\n\n

[17]<\/sup><\/a> See <\/em>Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508 (1989) (declaring that determining the meaning of Rule 609 requires beginning with the text); Tome v. United States, 513 U.S. 150, 167 (1995) (Scalia, J., concurring in part) (emphasizing the importance of the text of a rule when trying to derive its meaning because \u201c[i]t is the words of the Rules that have been authoritatively adopted\u201d).<\/p>\n\n\n\n

[18]<\/sup><\/a> Fed R. Evid. 609(a)\u2013(b); see <\/em>S. Rep. No 93-1277, at 7061 (1974).<\/p>\n\n\n\n

[19]<\/sup><\/a> Fed R. Evid. 609(b).<\/p>\n\n\n\n

[20]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[21]<\/sup><\/a> Edward W. Cleary, McCormick on Evidence \u00a7 43, at 93 (3d ed. 1984).<\/p>\n\n\n\n

[22]<\/sup><\/a> Bock Laundry Mach. Co.<\/em>, 490 U.S. at 511 (quoting 3 Jack Weinstein & Margaret A. Berger, Weinstein\u2019s Evidence \u00b6 609[02], at 609\u201358 (1988)).<\/p>\n\n\n\n

[23]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[24]<\/sup><\/a> See <\/em>Lester B. Orfield, Competency of Witness in Federal Criminal Cases<\/em>, 46 Marq. L. Rev. 324, 329\u201330 (1963).<\/p>\n\n\n\n

[25]<\/sup><\/a> Preliminary Draft of Proposed Rules of Evidence, Advisory Committee\u2019s Note, 46 F.R.D. 161, 171 (1969).<\/p>\n\n\n\n

[26]<\/sup><\/a> Id. <\/em>at 296.<\/p>\n\n\n\n

[27]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[28]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[29]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[30]<\/sup><\/a> Id. <\/em>at 171.<\/p>\n\n\n\n

[31]<\/sup><\/a> Id.<\/em> at 299.<\/p>\n\n\n\n

[32]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[33]<\/sup><\/a> H.R. Rep. No. 93-650, at 7077 (1973).<\/p>\n\n\n\n

[34]<\/sup><\/a> Id. <\/em>at 7085.<\/p>\n\n\n\n

[35]<\/sup><\/a> Fed. R. Evid. Historical Note.<\/p>\n\n\n\n

[36]<\/sup><\/a> S. Rep. No 93-1277, at 7061\u201362 (1974); H.R. Rep. No. 93-1597, at 7103 (1974).<\/p>\n\n\n\n

[37]<\/sup><\/a> S. Rep. No 93-1277, at 7061 (1974).<\/p>\n\n\n\n

[38]<\/sup><\/a> See<\/em> Fed R. Evid. 609 advisory committee\u2019s note to 1987 amendment (making only technical amendments); Fed R. Evid. 609 advisory committee\u2019s note to 1990 amendment (only discussing rule 609(a)); Fed R. Evid. 609 advisory committee\u2019s note to 2006 amendment (only discussing 609(a)); Fed R. Evid. 609 advisory committee\u2019s note to 2011 amendment (restyling, not making substantive changes).<\/p>\n\n\n\n

[39]<\/sup><\/a> 542 F.3d 275, 280\u201381 (1st Cir. 2008).<\/p>\n\n\n\n

[40]<\/sup><\/a> Id.<\/em> at 278.<\/p>\n\n\n\n

[41]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[42]<\/sup><\/a> Id. <\/em>at 279.<\/p>\n\n\n\n

[43]<\/sup><\/a> See id. <\/em>at 276\u201377.<\/p>\n\n\n\n

[44]<\/sup><\/a> Id. <\/em>at 281.<\/p>\n\n\n\n

[45]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[46]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[47]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[48]<\/sup><\/a> 892 F.2d 296, 301 (3d Cir. 1989) (emphasis added).<\/p>\n\n\n\n

[49]<\/sup><\/a> 738 F.2d 88, 93 (3d Cir. 1984) (emphasis added).<\/p>\n\n\n\n

[50]<\/sup><\/a> United States v. Cohen, 544 F.2d 781, 784 (5th Cir. 1977) (stating, in a conclusory manner, that \u201c[s]ince the trial commenced in July of 1975\u201d the prior conviction exceeded the 10 year time limit of 609(b)).<\/p>\n\n\n\n

[51]<\/sup><\/a> United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir. 1986) (determining that \u201cthe trial court\u2019s application of rule 609(b) . . . was proper as Thompson\u2019s trial began within ten years of his release from confinement for his state tax fraud convictions\u201d).<\/p>\n\n\n\n

[52]<\/sup><\/a> United States v. Cobb, 588 F.2d 607, 612 n.5 (8th Cir. 1978) (finding that the defendant\u2019s prior conviction fell within the 10 year limitation because \u201chis period of confinement apparently ended less than ten years prior to the date of his trial here in June 1978\u201d).<\/p>\n\n\n\n

[53]<\/sup><\/a> United States v. Portillo, 633 F.2d 1313, 1323 n.6 (9th Cir. 1980) (instructing the district court to make the factual determination of a prior conviction\u2019s starting point on remand so that it could determine if it was within 10 years of the start of trial).<\/p>\n\n\n\n

[54]<\/sup><\/a> See e.g.<\/em>, Cohen<\/em>, 544 F.2d at 784; Cobb<\/em>, 588 F.2d at 612 n.5.<\/p>\n\n\n\n

[55]<\/sup><\/a> United States v. Watler, 461 F.3d 1005, 1008 (8th Cir. 2006).<\/p>\n\n\n\n

[56]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[57]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[58]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[59]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[60]<\/sup><\/a> Id. <\/em>at 1008\u201309.<\/p>\n\n\n\n

[61]<\/sup><\/a> Id.<\/em> at 1009 (citing Ohler v. United States,<\/em> 529 U.S. 753, 760 (2000)).<\/p>\n\n\n\n

[62]<\/sup><\/a> United States v. Foley, 683 F.2d 273, 277 n.5 (8th Cir. 1982).  This case fails to acknowledge that the Eighth Circuit used a different endpoint four years earlier in United States v. <\/em>Cobb<\/em>.  588 F.2d 607, 612 n.5 (8th Cir. 1978).  Additionally, later Eighth Circuit opinions that address 609(b)\u2019s endpoint fail to cite or discuss Foley<\/em>.  See Watler<\/em>, 461 F.3d at 1008; United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006).<\/p>\n\n\n\n

[63]<\/a> Foley<\/em>, 683 F.2d at 277, 277 n.5.<\/p>\n\n\n\n

[64]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[65]<\/sup><\/a> United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting).  The Fifth Circuit had already created binding precedent on this issue that required this case to use the start of trial as 609(b)\u2019s endpoint.  United States v. Cohen, 544 F.2d 781, 784 (5th Cir.1977).<\/p>\n\n\n\n

[66]<\/sup><\/a> Cathey<\/em>, 591 F.2d at 277 n.2 (Fay, J., dissenting).<\/p>\n\n\n\n

[67]<\/sup><\/a> United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008).<\/p>\n\n\n\n

[68]<\/sup><\/a> Cathey<\/em>, 591 F.2d at 277 n.2 (Fay, J., dissenting).<\/p>\n\n\n\n

[69]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[70]<\/sup><\/a> S. Rep. No 93-1277, at 7061\u201362 (1974) (discussing impact of the age of a conviction on its probative value for impeachment); H.R. Rep. No. 93-650, at 7085 (1973) (same).<\/p>\n\n\n\n

[71]<\/sup><\/a> United States v. Ras, 713 F.2d 311, 318 (7th Cir. 1983); United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995).<\/p>\n\n\n\n

[72]<\/sup><\/a> 713 F.2d at 313, 318.<\/p>\n\n\n\n

[73]<\/sup><\/a> Id. <\/em>at 313.<\/p>\n\n\n\n

[74]<\/sup><\/a> United States v. Jefferson, 925 F.2d 1242, 1256 n.16 (10th Cir. 1991).<\/p>\n\n\n\n

[75]<\/sup><\/a> See <\/em>United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008) (start of trial did not involve delay tactics); United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting) (anything other than offense date would incentivize delay).<\/p>\n\n\n\n

[76]<\/sup><\/a> Cathey<\/em>, 591 F.2d at 274 n.13.<\/p>\n\n\n\n

[77]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[78]<\/sup><\/a> Id.  <\/em>While the language in the opinion frames the suggested endpoint as the date the defendant<\/em> testifies, that is because, in this case, the impeachment evidence was offered against the defendant.  Prior convictions, however, can be offered as impeachment evidence against any witness, not just a defendant.  More broadly applicable language would refer to the date of the witness\u2019s testimony.  The Tenth Circuit has also suggested in dicta that the time of testimony is a viable endpoint for 609(b) and used more apt language.  Jefferson<\/em>, 925 F.2d at 1256 n.16 (\u201c[T]en year period should not be tolled until the opponent testifies because the purpose behind the ten-year limit is to separate those convictions that have a reasonable bearing on whether the opponent\u2019s testimony<\/em> can be believed from those that have no reasonable bearing because they are stale.\u201d).<\/p>\n\n\n\n

[79]<\/sup><\/a> Cathey<\/em>, 591 F.2d at 274 n.13.<\/p>\n\n\n\n

[80]<\/sup><\/a> 437 F.3d 767, 769 (8th Cir. 2006).<\/p>\n\n\n\n

[81]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[82]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[83]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[84]<\/sup><\/a> United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir. 1991).<\/p>\n\n\n\n

[85]<\/sup><\/a> United States v. Thomas, 815 F. App\u2019x 671, 676\u201378 (3d Cir. 2020).<\/p>\n\n\n\n

[86]<\/sup><\/a> Id.  <\/em>Not every court has used the standard of review to avoid deciding this issue.  The Second Circuit, for example, found that introduction of prior convictions created only harmless error in a case but still, unnecessarily, declared that the defendant \u201crightfully point[ed] out\u201d that the convictions were beyond the 10 year limit at the time of trial.  United States v. Mahler, 579 F.2d 730, 734 (2d Cir. 1978).<\/p>\n\n\n\n

[87]<\/sup><\/a> Daniel J. Capra & Jessica Berch, Evidence Circuit Splits, and What to Do About Them<\/em>, 56 U.C. Davis L. Rev. 127, 130 (2022).<\/p>\n\n\n\n

[88]<\/sup><\/a> Daniel J. Capra & Liesa L. Richter, Poetry in Motion: The Federal Rules of Evidence and Forward Progress as an Imperative<\/em>, 99 B.U. L. Rev. 1873, 1878 (2019).<\/p>\n\n\n\n

[89]<\/sup><\/a> Id. <\/em>at 1886\u201387 (premising this standard on the assertion that \u201c[i]n the context of damaging and unresolved conflicts, the benefits of uniformity and fairness outweigh the potential costs of dislocation and unintended consequences\u201d).<\/p>\n\n\n\n

[90]<\/sup><\/a> See, e.g.<\/em>, United States v. Cathey, 591 F.2d 268, 274 n.13 (5th Cir. 1979); United States v. Williams, 892 F.2d 296, 301 (3d Cir. 1989); United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995); United States v. Nguyen, 542 F.3d 275, 280\u201381 (1st Cir. 2008).<\/p>\n\n\n\n

[91]<\/sup><\/a> See Cathey<\/em>, 591 F.2d at 274 n.13 (deciding the case based on Fifth Circuit precedent but adding a \u201ccaveat\u201d that another resolution may be more preferable).<\/p>\n\n\n\n

[92]<\/sup><\/a> There is no pending petition for certiorari on this matter and even if one was filed, the Supreme Court \u201c\u2018rarely grants certiorari\u2019 in evidence cases.\u201d  Capra & Berch, supra<\/em> note 14, at 551 (quoting Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years-the Effect of \u201cPlain Meaning\u201d Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules<\/em>, 60 Geo. Wash. L. Rev. 857, 911 (1992)).<\/p>\n\n\n\n

[93]<\/a> See<\/em> discussion infra<\/em> Part IV.B.<\/p>\n\n\n\n

[94]<\/sup><\/a> Fed. R. Evid. 102.<\/p>\n\n\n\n

[95]<\/a> These potential endpoints are the reasonable alternatives that should be considered and have been either used or suggested by federal courts and additional scholarship.<\/p>\n\n\n\n

[96]<\/sup><\/a> Compare<\/em> United States v. Griffin, 437 F.3d 767, 769 (8th Cir. 2006) (impeaching a criminal defendant using a prior conviction) with<\/em> United States v. Lorenzo, 43 F.3d 1303, 1308 (9th Cir. 1995) (defendant invoking 609(b) to use a prior conviction against a government witness).<\/p>\n\n\n\n

[97]<\/sup><\/a> See <\/em>United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008); United States v. Cathey, 591 F.2d 268, 277 n.2 (5th Cir. 1979) (Fay, J., dissenting).<\/p>\n\n\n\n

[98]<\/sup><\/a> John Gramlich, Fewer than 1% of Federal Criminal Defendants Were Acquitted in 2022<\/em>, Pew Research Center (June 14, 2023) https:\/\/www.pewresearch.org\/short-reads\/2023\/06\/14\/fewer-than-1-of-defendants-in-federal-criminal-cases-were-acquitted-in-2022\/#:~:text=In%20fiscal%20year%202022%2C%20only,were%20found%20guilty%20(1.9%25).<\/p>\n\n\n\n

[99]<\/sup><\/a> Cathey<\/em>, 591 F.2d at 277 n.2 (Fay, J., dissenting).<\/p>\n\n\n\n

[100]<\/sup><\/a> See infra <\/em>text accompanying note 104.<\/p>\n\n\n\n

[101]<\/sup><\/a> Green v. Bock Laundry Mach. Co., 490 U.S. 504, 505\u201308 (1989) (discussing Rule 609\u2019s applicability to civil, not just criminal, litigants).<\/p>\n\n\n\n

[102]<\/sup><\/a> Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, But Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does it Matter?<\/em> 101 Judicature 26, 28 (2017) (\u201c[A]pproximately 1 percent of all civil cases filed in federal court are resolved by trial.\u201d).<\/p>\n\n\n\n

[103]<\/sup><\/a> Because it is earlier than other suggested endpoints, using the offense date can be a quick and easy way for courts to dispose of 609(b) challenges when a conviction would be more than 10 years old regardless of the measurement used.  See<\/em> United States v. Foley, 683 F.2d 273, 277 n.5 (8th Cir. 1982) (10 year and 10 month old conviction using offense date would be even older using other metrics).  However, this reasoning does not apply when then 10 year mark for a prior conviction straddles different possible endpoints, so it does not justify amending the 609(b) to use the offense date as its endpoint.<\/p>\n\n\n\n

[104]<\/sup><\/a> Examples of multi-day crimes are plentiful.  Most conspiracies, fraud, or cases involving repeated conduct are not easily tied to a single date.  See, e.g.<\/em>, United States v. Torres, 529 F. App\u2019x 303, 306 (3d Cir. 2013) (\u201cyears-long\u201d narcotics conspiracy); United States v. Bates, 784 F. App\u2019x 312, 341 (6th Cir. 2019) (\u201cyears-long\u201d conspiracy and substantive mail and wire fraud).<\/p>\n\n\n\n

[105]<\/a> See <\/em>Fed. R. Evid. 104(a) (requiring courts to \u201cdecide any preliminary question about whether . . . evidence is admissible); Fed. R. Evid. 104(a) advisory committee note on proposed rules (\u201cTo the extent that these inquiries are factual, the judge acts as a trier of fact.\u201d).<\/p>\n\n\n\n

[106]<\/sup><\/a> See<\/em> United States v. Mullins, 562 F.2d 999, 1000 (5th Cir. 1977) (holding that \u201cthe defendant’s voluntary flight tolled the ten-year limitation in Rule 609(b)\u201d despite binding circuit precedent that set 609(b)\u2019s endpoint at the start of trial).<\/p>\n\n\n\n

[107]<\/sup><\/a> Id.<\/em><\/p>\n\n\n\n

[108]<\/sup><\/a> United States v. Nguyen, 542 F.3d 275, 281 (1st Cir. 2008).<\/p>\n\n\n\n

[109]<\/sup><\/a> Id<\/em>.<\/p>\n\n\n\n

[110]<\/a> Fed. R. Evid. 102.<\/p>\n\n\n\n

[111]<\/sup><\/a> United States v. Jefferson, 925 F.2d 1242, 1256 n.16 (10th Cir. 1991) (tolling the 10 year period at the time of indictment is preferable if the objective is to \u201cdiscourage dilatory tactics\u201d).<\/p>\n\n\n\n

[112]<\/sup><\/a> Capra & Berch, supra<\/em> note 14, at 563.<\/p>\n\n\n\n

[113]<\/sup><\/a> Id. <\/em>(quoting United States v. Cathey, 591 F.2d 268, 274 n.13 (5th Cir. 1979)).<\/p>\n\n\n\n

[114]<\/sup><\/a> Id.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The Missing Endpoint of Rule 609(b) Bobby Levine* Introduction Federal Rule of Evidence 609(b) (\u201c609(b)\u201d) limits when a lawyer can impeach a witness using their prior criminal convictions.[1]  To impeach a witness with a prior conviction that is more than 10 years old, there is a heightened standard for admissibility.  The judge must find that its probative value \u201csubstantially outweighs its prejudicial effect.\u201d[2]  That language may sound familiar.  It is a specialized application of the 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