A broad scholarly coalition supports the prohibition or diminution of the impeachment of criminal defendants with their convictions. Yet scholars should pay more attention to the flipside arrangement: impeachment of prosecution witnesses by defense counsel. First, because those engaged in reform efforts need to resolve the competing interests: constitutional arguments on behalf of the defense, but, on the other hand, concerns about a tool that (regardless of the nature of the witness) risks reinforcing biases and stereotypes. Second, because the impossibility of adequate resolution is itself important to note. Whether one considers the conflicting values of rule-makers deciding whether to regulate this, or the conflicting values of defense attorneys deciding whether to deploy it, the intractability underscores the appeal of abolitionist visions.
Defense Counsel’s Cross Purposes: Prior Conviction Impeachment of Prosecution Witnesses,
87 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol87/iss4/6