Let’s talk about prior conviction impeachment

BY ASEES BHASIN & CAITLIN GLASS

Let’s talk about prior conviction impeachment, a racist evidentiary practice that allows a witness to be questioned about their prior felony convictions if they choose to testify in court. We filed an amicus brief challenging this practice in Oregon, codified in Oregon Evidence Code (OEC) 609.

The practice of prior conviction impeachment relates back to historical competency restrictions that barred witnesses from testifying in courtrooms based on racism, sexism, classism, and other forms of bigotry.

Today, prior conviction impeachment rules similarly silence witnesses with criminal records—who are disproportionately people of color, due to racial bias at each stage of policing and criminal proceedings. This is especially harmful when the witness is a person accused of a crime seeking to testify in their own defense.

Due to false and  racist narratives associating Blackness with criminality, dangerousness, and violence, learning about an accused person’s prior convictions may trigger racial biases—conscious or  subconscious—causing judges and jurors to make negative assumptions about their culpability or trustworthiness.

Prior conviction impeachment rules are not only racist; they are also ineffective. These rules impede the core courtroom function of factfinding by introducing evidence that is irrelevant and highly prejudicial. 

The rationale for questioning witnesses about their prior convictions is grounded in the false assumption that a prior conviction tells us about witnesses’ “credibility.” But this premise is unsupported by empirical research.

To learn more about problems with prior conviction impeachment, check out our amicus brief in State v. Aranda, co-authored with Professor Anna Roberts and Professor Julia Simon-Kerr of the Prior Conviction Impeachment Reform Coalition, and the Criminal Justice Reform Clinic.