Benched Judges

In multiple jurisdictions, if the prosecutor wants to attack the credibility of a person testifying in their own defense with that witness’s prior felony convictions, the judge has no power to say no. Judges decry their powerlessness. Their opinions reveal three types of concerns: that these convictions lack probative value on the issue of credibility, that they inflict unfair prejudice that jury instructions cannot ameliorate, and that the power transferred by these provisions from judge to prosecutor is undeserved and abused. There is much that could be done to address these concerns. The rules could be reinterpreted or rewritten to permit judicial exclusion. Even absent such a change, judges could push back with improved jury instructions, expert witnesses, or dismissal. Finally, there is new momentum to prohibit this prosecutorial tool altogether. In choosing between these options, two considerations are critical. First, the caution of abolitionists that certain kinds of criminal reform risk sanitizing and entrenching harmful systems. Second, the extent to which standard academic discourse reinforces the assumptions underlying these provisions. For just as these provisions imbue prior convictions with unwarranted weight, traffic in unsupported assumptions about the ability of the system to protect against unfairness, and place their confidence in the judgment of the prosecutor, so academics in their explicit and implicit assertions do the same.