Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants With Prior Convictions Jeffrey Bellin∗ This Article spotlights the flawed analytical framework at the heart of the federal courts’ approach to one of the most controversial trial practices in American criminal jurisprudence — the admission of prior convictions to impeach the credibility of defendants who testify. As the Article explains, the flawed approach is a byproduct of the courts’ reliance on a five-factor analytical framework to implement the governing legal standard enacted by Congress in Federal Rule of Evidence 609. Tracing the evolution of the five- factor framework from its roots in pre-Rule 609 case law, the Article demonstrates that the courts’ reinterpretation of the framework in recent years has, by judicial fiat, transformed Rule 609. Rather than the obstacle ∗ Senior Appellate Attorney, California Courts of Appeal; former Assistant United States Attorney; J.D., Stanford Law School, 1999. E-mail: [email protected]. I would like to thank George Fisher and Robert Huie for their helpful comments on an early draft of this article. 289 290 University of California, Davis [Vol. 42:289 to the admission of prior convictions that Congress intended, Rule 609 has become a conduit for their routine admission. The Article concludes by proposing an alternative analytical framework designed to realign the federal case law on this critical subject with the governing congressional intent. In the absence of such a reform, the federal courts’ erroneous analysis will continue to alter the course of countless criminal trials by unnecessarily deterring defendants from testifying and improperly penalizing those who do take the witness stand. TABLE OF CONTENTS INTRODUCTION ................................................................................... 291 I. THE SIGNIFICANCE OF PRIOR CONVICTION IMPEACHMENT OF CRIMINAL DEFENDANTS ........................................................... 294 II. CONGRESS SPEAKS ON IMPEACHMENT: FEDERAL RULE OF EVIDENCE 609 .......................................................................... 303 A. The Compromise Embodied in Rule 609 ............................. 304 B. Reading Between the Lines: The Anti-Impeachment Tenor of Rule 609 ........................................................................ 307 III. IMPLEMENTING RULE 609’S BALANCING TEST: THE FIVE- FACTOR FRAMEWORK ............................................................... 312 A. United States v. Mahone Establishes the Five-Factor Framework ........................................................................ 312 B. The District of Columbia Circuit’s Pre-Rule 609 Case Law ................................................................................... 313 C. The Implications of Mahone’s Reliance on Gordon ........... 315 D. An Inherent Flaw in the Mahone Framework .................... 318 IV. MODERN APPLICATION OF THE FIVE-FACTOR FRAMEWORK ...... 319 A. Luce v. United States Transforms Appellate Review of Impeachment Rulings ......................................................... 320 B. The Fourth and Fifth Mahone Factors Escape From Equipoise ........................................................................... 322 C. Post-Luce Application of the Fourth and Fifth Mahone Factors .............................................................................. 324 D. Implications of the Modern Application of the Five-Factor Framework ........................................................................ 330 V. AN ALTERNATIVE ANALYTICAL FRAMEWORK FOR APPLYING RULE 609 ................................................................................. 335 CONCLUSION....................................................................................... 340 2008] Circumventing Congress 291 INTRODUCTION One of the most significant rulings in a criminal case is the determination that a defendant who intends to take the witness stand may (or may not) be impeached with a prior conviction.1 Indeed, when prior conviction2 impeachment is permitted, defendants often decline to testify at all, fearing that once the jury is aware of their criminal record, it will conclude the defendant “is the kind of [person] who would commit the crime” or, even worse, “that he ought to be put away without too much concern with present guilt.”3 1 See Richard D. Friedman, Character Impeachment Evidence: Psycho-Bayesian [!?] Analysis and a Proposed Overhaul, 38 UCLA L. REV. 637, 639 (1991) (recognizing that “prosecutors offer . . . [prior conviction impeachment] evidence very frequently, and both sides recognize its potency and often litigate its admissibility with great vigor”); Victor Gold, Impeachment by Conviction Evidence: Judicial Discretion and the Politics of Rule 609, 15 CARDOZO L. REV. 2295, 2297, 2310 n.74 (1994) (ascribing “the extraordinary amount of congressional interest” in federal rule governing impeachment of testifying defendants to fact that impeachment decision “significantly affects the outcome of criminal trials”); Alan D. Hornstein, Between Rock and a Hard Place: The Right to Testify and Impeachment by Prior Conviction, 42 VILL. L. REV. 1, 1-2 (1997) (noting that “[i]f the jury learns that a defendant previously has been convicted of a crime, the probability of conviction increases dramatically”); L. Timothy Perrin, Pricking Boils, Preserving Error: On The Horns of a Dilemma After Ohler v. United States, 34 UC DAVIS L. REV. 615, 651-52 (2001) (noting that “[t]he available empirical data demonstrate that the admission of a prior conviction has an explosive impact on the jury, substantially increasing the likelihood that the jury will convict the defendant of the charged crime,” and consequently “the admission at trial of a criminal defendant’s prior convictions often spells doom for a criminal defendant”). 2 The phrase “prior conviction” has been criticized as redundant in this context because any potentially admissible conviction will necessarily have occurred prior to a witness’s testimony. See James Duane, Prior Convictions and Tuna Fish, 7 SCRIBES J. LEGAL WRITING 160, 161 (2000). While there is some merit to this criticism, this Article sacrifices potential style points for clarity in utilizing the arguably redundant phrasing, which is, after all, “lodged in our legal lexicon.” Id. at 162. The standard formulation, while at times rhetorical overkill, eliminates ambiguity that might arise when a qualifier (e.g., “prior,” “felony,” or “criminal”) is omitted. For example, a Quaker on trial for heresy or a sociopath attempting to avoid the death penalty would wisely endeavor to suppress evidence of their “convictions” (i.e., fixed or strong beliefs, see AMERICAN HERITAGE DICTIONARY 292 (New College ed. 1976)), despite not having any criminal record. 3 Loper v. Beto, 405 U.S. 473, 482 n.11 (1972) (quoting 1 MCCORMICK ON EVIDENCE § 43, at 93 (1954)); see also Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: Here I Go Down That Wrong Road Again, 74 N.C. L. REV. 1559, 1632 (1996) (“The principal reason why defendants refuse to take the stand is that they fear impeachment with prior convictions — a fear with strong support from the empirical evidence.”); R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 WM. & MARY L. REV. 15, 58 (1981) (arguing that “innocent 292 University of California, Davis [Vol. 42:289 Commentators have long criticized the practice of impeaching testifying defendants with prior convictions, citing the questionable relevance of past crimes to witness credibility and the virtual certainty that their admission will lead to unfair prejudice.4 This chorus of disapproval has had little practical effect, however. The admission of prior convictions is now a well established and virtually routine part of federal (and most state) criminal proceedings in which a defendant with a criminal record takes the witness stand.5 defendants in many American jurisdictions are deterred from testifying by the unjust practice of allowing prior convictions to be routinely admitted to impeach a defendant’s credibility”); Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 NOTRE DAME L. REV. 403, 482 (1992) (noting that “[t]he threat of felony conviction impeachment can be a powerful deterrent to taking the witness stand” and citing empirical evidence that “a defendant [i]s almost three times more likely to refuse to testify if he ha[s] a criminal record than if not”); cf. Ohler v. United States, 529 U.S. 753, 759 (2000) (recognizing that potential use of prior convictions as impeachment “may deter a defendant from taking the stand”). 4 See James Beaver & Steven Marques, A Proposal to Modify the Rule on Criminal Conviction Impeachment, 58 TEMP. L.Q. 585, 604 (1985); Teree E. Foster, Rule 609(A) in the Civil Context: A Recommendation for Reform, 57 FORDHAM L. REV. 1, 1-2 (1988) (stating that “[n]o rule of evidence has provoked commentary so passionate or profuse as that which permits impeachment of a testifying witness in a criminal case by introducing that witness’ previous convictions”); Gold, supra note 1, at 2295-96 (“No provision of the Federal Rules of Evidence has sparked more controversy than Rule 609, which deals with the admissibility of convictions to impeach a witness.”); Hornstein, supra note 1, at 10; Gene R. Nichol, Jr., Prior Crime Impeachment of Criminal Defendants: A Constitutional Analysis of Rule 609, 82 W. VA. L. REV. 391, 394 (1980) (recognizing practice of impeaching criminal defendant with prior conviction as “one of the most seriously debated issues of evidence law”); Perrin, supra note 1, at 652; discussion infra Part I. The Supreme Court has identified Dean Ladd’s 1940 article criticizing the impeachment of criminal defendants (and other witnesses) with prior convictions as a “seminal article” in this area. See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 512 n.11 (1989) (citing Mason Ladd, Credibility Tests — Current Trends, 89 U. PA. L. REV. 166, 176, 191 (1940)). 5 See Beaver & Marques, supra note 4, at 591 (stating that despite passage of Federal Rules, “[p]rior crime impeachment of criminal defendant-witnesses continues essentially unabated” and noting famed study by Harry Kalven, Jr. and Hans Zeisel that “nationwide, juries learn of defendants’ criminal records in seventy-two percent of the cases in which defendants testify in their own behalf”); John Blume, The Dilemma of the Criminal Defendant with a Prior Record — Lessons from the Wrongfully Convicted, 5 J. EMPIRICAL LEGAL STUD. 477, 484-86 n.28 (forthcoming 2008), available at http://ssrn.com/abstract=1014181 (explaining that state and federal rules limiting prior conviction impeachment are “honored in the breach” and that any required balancing of probative value versus prejudice “is routinely struck in favor of impeachment”); Mirjan R. Damaska, Propensity Evidence in Continental Legal Systems, 70 CHI.-KENT L. REV. 55, 59 (1994) (contrasting continental European jurisdictions with “common law jurisdictions . . . where prior convictions are routinely used to impeach the accused who decides to testify in his own defense”); Greenawalt, supra 2008] Circumventing Congress 293 As this Article explains, the federal courts are not merely out of step with commentators on this issue, but have also diverged from the intent of Congress. The now-prevailing practice is patently inconsistent with the controlling legal standard — Federal Rule of Evidence 609. On its face, Rule 609 is unflinchingly hostile to the use of prior convictions as impeachment of criminal defendants. The Rule allows the introduction of most convictions only if “the [trial] court determines that the probative value of admitting this evidence outweighs its prejudicial effect.”6 This prerequisite to admissibility, an unweighted balancing of prejudice versus probative value, should favor the defense in the overwhelming majority of cases.7 Instead, a reflexive approach to admitting defendants’ prior convictions has become the norm.8 This Article attempts to explain the pronounced divergence between the federal courts’ routine admission of defendants’ prior convictions and the congressional intent underlying Rule 609 that such evidence be strictly limited.9 The Article traces this phenomenon to a three- decade-long trend in the federal courts toward replacing the facially anti-impeachment text of the Rule with a decidedly pro-impeachment, five-factor analytical framework that places an almost insurmountable burden on defendants attempting to exclude prior convictions.10 In note 3, at 58 (decrying “the unjust practice” in American jurisdictions “of allowing prior convictions to be routinely admitted to impeach a defendant’s credibility”); Hornstein, supra note 1, at 4-5 (recognizing that “the lower courts more or less routinely admit[] [prior convictions] for impeachment” of testifying criminal defendants); Nichol, supra note 4, at 394, 399 (stating that despite “academic fervor” criticizing practice of prior conviction impeachment of criminal defendants has been “largely unabated under the provisions of the Federal Rules of Evidence”); infra Part IV (canvassing federal case law applying Rule 609). 6 FED. R. EVID. 609(a)(1). 7 See infra Part II.B. 8 See infra Part IV.C; infra note 162. 9 See FED. R. EVID. 609 (indicating congressional intent that prior convictions should only be used in limited circumstances); infra Part II. 10 As discussed in greater detail below, the federal appellate courts instruct district courts as follows: [I]n determining whether the probative value of admitting a prior conviction outweighs its prejudicial effect, the court should consider: ‘(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.’ United States v. Gant, 396 F.3d 906, 909 (7th Cir. 2005); see also infra Part III (discussing this five-factor framework); cases cited infra note 110 (cataloging use of 294 University of California, Davis [Vol. 42:289 effect, this judge-created framework designed to interpret Rule 609 has instead supplanted it. As a consequence, the federal approach to prior conviction impeachment has become the opposite of what Congress intended. Part I of the Article provides the context for the analysis to follow, demonstrating the broad significance of prior conviction impeachment rulings — one of only a handful of potentially dispositive evidentiary rulings governing criminal trials. Part II sketches the legislative history of Rule 609, depicting Congress’s intent that the Rule, as finally enacted, strictly curtail admission of defendants’ prior convictions. Part III documents how the federal courts have strayed from congressional intent by relying on a fundamentally flawed, judicially crafted five-factor framework to apply the Rule. Part IV demonstrates that the framework, as currently applied, leads to the virtually automatic admissibility of prior convictions as impeachment. Finally, Part V proposes an alternative analytical approach to the application of Rule 609 that is designed to realign the federal case law with the controlling congressional intent. I. THE SIGNIFICANCE OF PRIOR CONVICTION IMPEACHMENT OF CRIMINAL DEFENDANTS It has long been established in the vast majority of American jurisdictions that criminal defendants who take the witness stand, like all other witnesses, are subject to general credibility impeachment through the introduction of evidence of their prior convictions.11 This this framework in federal circuits). 11 See United States v. Martinez, 555 F.2d 1273, 1275 (5th Cir. 1977) (recognizing “criticism” of practice of impeaching criminal defendants with prior convictions, but noting that it “is firmly entrenched in our jurisprudence”); United States v. Garber, 471 F.2d 212, 215-16 (5th Cir. 1972) (emphasizing that although prior conviction impeachment has been “persistently criticized” it is “firmly entrenched in criminal justice procedures” and “generally accepted as fair and proper”); 1 MCCORMICK ON EVIDENCE § 42, at 198 (Kenneth S. Broun et al. eds., 6th ed. 2006) (noting argument that impeachment of accused must be permitted because “it is misleading to permit the accused to appear as a witness of blameless life” has “prevailed widely”); Nichol, supra note 4, at 391 (recognizing practice as “time-honored tenet of our evidentiary jurisprudence”). The Supreme Court of Hawaii holds a contrary view and has ruled that “to convict a criminal defendant where prior crimes have been introduced to impeach his credibility as a witness violates the accused’s constitutional right to testify in his own defense.” State v. Santiago, 492 P.2d 657, 661 (Haw. 1971). A handful of states have adopted Hawaii’s approach in generally barring impeachment of testifying defendants with prior convictions. See Robert D. Dodson, What Went Wrong with Federal Rule Of Evidence 609: A Look at How Jurors Really Misuse Prior Conviction Evidence, 48 DRAKE 2008] Circumventing Congress 295 practice of impeaching the credibility of criminal defendants with prior convictions has been aptly characterized as “one of the most controversial in the law of evidence.”12 The controversy stems from the fact that, while the rationale behind the practice is far from compelling, all sides agree that it has a devastating effect on defendants who testify (or decline to do so to avoid impeachment). Prosecutors routinely fight to preserve their ability to introduce a defendant’s prior convictions as impeachment evidence.13 In response, criminal defense attorneys endeavor to moot the potential impeachment by convincing defendants with a criminal record to refrain from testifying.14 These tactical positions reflect the “overwhelming consensus”15 of legal commentators and practitioners that prior conviction impeachment has an “explosive impact on the jury,” “significantly affect[ing] the outcome of criminal trials,”16 and often “spell[ing] doom for a criminal defendant.”17 The available empirical data support this consensus, demonstrating that admission of a defendant’s prior convictions “substantially increase[s] the likelihood that the jury will convict the defendant of the charged crime.”18 L. REV. 1, 51 (1999) (citing Hawaii, Pennsylvania, Kansas, Georgia, and Montana as sole jurisdictions that depart from general rule permitting such impeachment). 12 See Foster, supra note 4, at 1-2. 13 See 1 MCCORMICK ON EVIDENCE, supra note 11, § 42, at 198 (noting that “[m]ost prosecutors argue” that impeachment should be permitted because “it is misleading to permit the accused to appear as a witness of blameless life”); Friedman, supra note 1, at 639 (recognizing that “prosecutors offer . . . [prior conviction impeachment] evidence very frequently, and both sides recognize its potency and often litigate its admissibility with great vigor”); Mason Ladd, Credibility Tests — Current Trends, 89 U. PA. L. REV. 166, 190 (1940) (asserting that potential to introduce defendant’s criminal record as impeachment “is something never missed by the prosecuting attorney”). 14 See Beaver & Marques, supra note 4, at 606 (reporting survey of defense attorneys finding that 98% “believed that it was impossible for the limiting instruction” requiring juries to consider prior convictions solely as impeachment “to be effective”); Van Kessel, supra note 3, at 482 (noting that defendants with criminal record are almost three times more likely to refuse to testify). 15 Beaver & Marques, supra note 4, at 604. 16 See Gold, supra note 1, at 2297 n.74. 17 Perrin, supra note 1, at 651; see also Hornstein, supra note 1, at 1-2 (“If the jury learns that a defendant previously has been convicted of a crime, the probability of conviction increases dramatically.”); Ladd, supra note 13, at 186 (arguing that admission of prior conviction “may be the turning point of the case to the untrained mind”). 18 Perrin, supra note 1, at 651-52; see also Beaver & Marques, supra note 4, at 604- 06 (summarizing juror studies and concluding that “[e]mpirical data . . . indicate that the admission of evidence of prior crimes is so highly prejudicial that it often may be decisive in determining the jury’s verdict”). 296 University of California, Davis [Vol. 42:289 Scholarly commentary in the modern era has resolutely derided prior conviction impeachment as a mean-spirited penalty imposed on criminal defendants — nothing more than a thinly veiled effort by prosecutors (condoned by “law and order” courts and legislators) to introduce otherwise prohibited evidence of a defendant’s criminal propensities through the back door of credibility impeachment.19 In light of this strident and often one-sided characterization of prior conviction impeachment,20 it is necessary to situate the practice in its historical context to develop a meaningful appreciation of its place in American jurisprudence. The roots of the practice of impeachment with prior convictions can be traced to English common law, which categorically barred witnesses previously convicted of a felony (or other “infamous crime”) from testifying.21 Throughout the late nineteenth and early twentieth centuries, these and other disqualifications of witness classes gradually disappeared in American jurisdictions. This trend culminated in the Supreme Court’s pronouncement in 1918, as “the conviction of [the] time,” that “the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury.”22 The statutory reforms that abolished the testimonial disqualification of felons and other classes of witnesses nevertheless retained some of the spirit of the common law tradition by permitting the credibility of 19 See, e.g., Beaver & Marques, supra note 4, at 607, 619 (arguing that permitting impeachment “effectively allows the government to influence the jury on the issue of guilt with evidence that is inadmissible as a matter of law” and advocating abolition of practice); Nichol, supra note 4, at 403, 409 (noting perception that “prosecutors often use past conviction evidence hoping that jurors will be unable to follow the instructions of the court” and contending that “[p]rior crime impeachment . . . serves no legitimate interest in the conduct of federal criminal trials”); H. Richard Uviller, Evidence of Character to Prove Conduct: Illusion, Illogic, and Injustice in the Courtroom, 130 U. PA. L. REV. 845, 868 (1982) (suggesting that “the impeachment rubric is a hoax, merely a cover for the admission of evidence bearing on propensity — which is what the rule’s defenders are probably seeking”). 20 Even some commentators who generally believe that criminal defendants are “surrounded with excessive safeguards” and “treat[ed] . . . too leniently” find the practice of impeachment with prior convictions “insupportable.” Beaver & Marques, supra note 4, at 587. 21 See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 511 (1989) (“At common law a person who had been convicted of a felony was not competent to testify as a witness.”); Ladd, supra note 13, at 174 (explaining that common law precluded testimony from persons convicted of “infamous crimes under the laws of England, generally enumerated as treason, felony and the crimen falsi”). 22 Rosen v. United States, 245 U.S. 467, 471 (1918). 2008] Circumventing Congress 297 previously disqualified witnesses to be impeached with the once disqualifying factors. In the case of felons, this meant impeachment with their prior convictions.23 Thus, the practice of impeaching testifying witnesses with prior convictions was not, at least originally, intended to penalize defendants. Instead, it was a byproduct of a progressive reform that removed rather than added to the obstacles facing convicts (including, of course, many criminal defendants) who sought to testify.24 While this history is sufficient to explain the current practice of impeachment with felony convictions, it is not a particularly compelling justification for it. The “conviction of [the present] time”25 leaves little room for admiring the relative liberality of modern practice as contrasted with seemingly archaic witness class disqualifications of English common law. Instead, modern proponents of prior conviction impeachment must rely on its intrinsic merits — that knowledge of a witness’s prior conviction(s) provides insight to the jury in evaluating credibility.26 23 See Green, 490 U.S. at 511-12 (“As the law evolved, th[e] absolute bar gradually was replaced by a rule that allowed such witnesses to testify in both civil and criminal cases, but also to be impeached by evidence of a prior felony conviction or a crimen falsi misdemeanor conviction.”); Rogers v. Balt. & Ohio R.R. Co., 325 F.2d 134, 137 (6th Cir. 1963) (recognizing admissibility of prior conviction impeachment as “a carry-over from the common law”); Hornstein, supra note 1, at 22 (noting that “[t]ypically, when a jurisdiction abolished the disqualification of witnesses who had been convicted of a crime, it permitted the conviction to be used to impeach the testimony of the witness” and that “[n]o distinction was made between the garden variety witness and the criminal defendant testifying in her own behalf, despite what now seems the obviously greater prejudicial impact on the latter”). 24 Indeed, criminal defendants were among the classes of witnesses wholly disqualified from testifying under the common law tradition. See Nix v. Whiteside, 475 U.S. 157, 164 (1986) (“Until the latter part of the preceding century, criminal defendants in this country, as at common law, were considered to be disqualified from giving sworn testimony at their own trial by reason of their interest as a party to the case.”). Of course, with respect to criminal defendants and other interested parties, the fact of their interest needed no specific authorization to be admissible as impeachment once the statutory disqualifications were repealed. See FED. R. EVID. 601 advisory committee’s note (commenting with respect to abolition of witness disqualifications that “[i]nterest in the outcome of litigation and mental capacity are, of course, highly relevant to credibility and require no special treatment to render them admissible along with other matters bearing upon the perception, memory, and narration of witnesses”). 25 Rosen, 245 U.S. at 471. 26 See People v. Castro, 696 P.2d 111, 118 (Cal. 1985) (recognizing that “while the historical basis for felony impeachment may well be the common law rule that a person convicted of any felony was totally incompetent as a witness . . . , the modern justification for the practice must be that prior felony convictions may, somehow, be 298 University of California, Davis [Vol. 42:289 Indeed, just as the complete disqualification of felons as witnesses seemed sensible to those who crafted the common law, the logic of impeaching witnesses with prior convictions remains plausible today. A jury may draw some useful information from the fact that a witness has a criminal record, particularly, although not exclusively, when a prior crime involved a measure of dishonesty.27 As famously explained by Justice Holmes, evidence that a witness has been convicted of a serious crime suggests a “general readiness to do evil.”28 It is from that general disposition . . . that the jury is asked to infer a readiness to lie in the particular case, and thence that he has lied in fact. The evidence has [a] tendency to prove that . . . he has perjured himself, and it reaches that conclusion . . . through the general proposition that he is of bad character and unworthy of credit.29 The same argument has been stated more colloquially, as follows: [C]onvicted felons are not generally permitted to stand pristine before a jury with the same credibility as that of a Mother Superior. Fairness is not a one-way street and in the search for the truth it is a legitimate concern that one who testifies should not be allowed to appear as credible when his criminal record of major crimes suggests that he is not.30 The justification for impeachment that is embodied in the preceding quotations becomes less forceful, however, when the witness is the accused in a criminal case. Unlike any other witness, “[a] testifying defendant’s credibility is impeached by his interest in the trial’s outcome even before he utters a word.”31 Not only is every defendant relevant to the witness’ veracity”). 27 FED. R. EVID. 609 advisory committee’s note to 1972 Proposed Rules (“There is little dissent from the general proposition that at least some crimes are relevant to credibility.”). 28 Gertz v. Fitchburg R.R. Co., 137 Mass. 77, 78 (1884); see also Green, 490 U.S. at 508 n.4; Ladd, supra note 13, at 176. 29 Gertz, 137 Mass. at 78; see also Green, 490 U.S. at 508 n.4. 30 United States v. Lipscomb, 702 F.2d 1049, 1077 (D.C. Cir. 1983); see also 1 MCCORMICK ON EVIDENCE, supra note 11, § 42, at 198 (“Most prosecutors argue forcefully that it is misleading to permit the accused to appear as a witness of blameless life, and this argument has prevailed widely.”). 31 James L. Kainen, The Impeachment Exception to the Exclusionary Rules: Policies, Principles, and Politics, 44 STAN. L. REV. 1301, 1313 (1992); see also United States v. Gaines, 457 F.3d 238, 248 (2d Cir. 2006) (saying “[n]othing could be more obvious, and less in need of mention to a jury, than the defendant’s profound interest in the verdict”); Hornstein, supra note 1, at 62-63 (explaining “whatever probative value