Published on:
"Limiting the Government’s Ability to Impeach Our Clients with Prior Convictions: 'Substantial' Developments to Federal Rule of Evidence 609" was written by Rene L. Valladares, Federal Defender District of Nevada, and Hannah Nelson, Assistant Federal Public Defender, District of Nevada for the NACDL's journal The Champion. It is copyrighted by The Champion and will be published in January/February 2026 edition.
A summary of the article's main points are:
- Federal Rule of Evidence 609 (a)(1)(B) provides that, upon testifying, our clients can be impeached with prior convictions that do not involve dishonesty if:
- The prior conviction is a felony, and,
- “the probative value of the evidence outweighs its prejudicial effect…
- This is a slightly more favorable test than the one for a non-defendant witness, but it still manages to deter our clients from going to trial and taking testifying on their behalf.
- This Rule is currently in the process of being amended to add “substantially” to the current test.
- If the amendment passes, our clients’ prior felony convictions that do not relate to dishonesty would be admitted if “the probative value of the evidence substantially outweighs it prejudicial effect…”
- This modification would mean that the vast majority of non-dishonesty convictions could not be used to impeach our clients.
- The Rule is being amended because:
- The Rule as currently applied impacts negatively defendants’ right to take the stand, and right to go to trial
- The way many courts are applying the existing test is contrary to Congressional intent
- These types of convictions are not probative of truthfulness
- Admission of these convictions is highly prejudicial
- The way the current test is being applied has a disproportionate impact on minorities
- This article examines the arguments behind the proposed amendment and makes the case that criminal defense lawyers should be making these arguments now. Read full article now.
Back to News Page