Content area
Full Text
I. Introduction
Experienced trial practitioners know that when it comes to courtroom testimony, the credibility of a testifying witness is often as important as the substance of the testimony itself.1 Although witnesses with prior military or civilian convictions are less common in military practice,2 the ability to impeach a witness who does have a conviction is a powerful weapon when the opportunity arises. American jurisprudence has long allowed parties to introduce evidence of a testifying witness's prior convictions in order to impeach the credibility of that witness.3 However, some types of convictions are considered more telling of credibility than others. In particular, convictions for crimina falsi,4 or crimes of dishonesty or deceit, are considered so relevant to credibility that both federal and military rules of evidence mandate their automatic admission for impeachment, without the need to apply any balancing test.5 But while the automatic admissibility of crimen falsi convictions is largely unchallenged in practice,6 defining exactly what constitutes a crimen falsi conviction in the first place is often confusing and contested.
The Supreme Court and Congress tried to reign in this definitional confusion by amending Federal Rule of Evidence (FRE) 609 effective 1 December 2006.7 This federal rule, like its military counterpart, Military Rule of Evidence (MRE) 609, governs the use of a prior conviction to impeach a witness testifying at trial. The revision to subsection (a)(2) of FRE 609, in particular, limited automatically admissible crimen falsi convictions to those crimes for which "the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness."8 By operation of law, the federal changes automatically modified MRE 609 as of 1 June 2008.9
The practical differences between the old and new rules are, in some cases, deceptively subtle. Prior to the 2006 revision, FRE 609(a)(2), as well as MRE 609(a)(2), allowed automatic admissibility of a conviction simply if it "involved dishonesty or false statement."10 When weighing the admissibility of convictions, federal and military courts embraced this ambiguity by regularly "looking beyond" the elements of offenses to consider whether the circumstances of a crime-not just the crime itself-involved dishonesty or false statement.11 However, by tying an elemental analysis to crimen falsi determinations under the revised rule, Congress has apparently...