JUSTICE STEVENS delivered the opinion of the Court.
This case presents the question whether Rule 609(a)(1) of the Federal Rules of Evidence requires a judge to let a civil litigant impeach an adversary's credibility with evidence of the adversary's prior felony convictions. Because the Courts of Appeals have answered that question in different ways, we granted certiorari to resolve the conflict. 487 U.S. 1203 (1988).
The Court of Appeals' disposition followed Circuit precedent established in Diggs v. Lyons, 741 F.2d 577 (CA3 1984), cert. denied, 471 U.S. 1078 (1985). Writing for the panel majority, Judge Maris, who had headed the Advisory Committee that proposed a federal code of evidence to this Court,
Dissenting, Judge Gibbons acknowledged that "snippets of legislative history" show that four Members of Congress anticipated that a court might interpret Rule 609(a) to require impeachment of a witness by prior felony convictions irrelevant to the civil context. Id., at 583. Yet he remained unpersuaded that Congress as a whole intended "so ridiculous a result." Ibid. Instead, he attributed the Rules' silence
Both the majority and dissenting opinions in Diggs convey dissatisfaction with automatic admissibility of prior felony convictions to impeach civil witnesses, especially civil plaintiffs. Indeed, criticism of this result is longstanding and widespread.
Federal Rule of Evidence 609(a) provides:
By its terms the Rule requires a judge to allow impeachment of any witness with prior convictions for felonies not involving dishonesty "only if" the probativeness of the evidence is greater than its prejudice "to the defendant."
The Rule's plain language commands weighing of prejudice to a defendant in a civil trial as well as in a criminal trial. But that literal reading would compel an odd result in a case like this. Assuming that all impeaching evidence has at least minimal probative value, and given that the evidence of plaintiff Green's convictions had some prejudicial effect on his case — but surely none on defendant Bock's — balancing according to the strict language of Rule 609(a)(1) inevitably
No matter how plain the text of the Rule may be, we cannot accept an interpretation that would deny a civil plaintiff the same right to impeach an adversary's testimony that it grants to a civil defendant.
Out of this agreement flow divergent courses, each turning on the meaning of "defendant." The word might be interpreted to encompass all witnesses, civil and criminal, parties or not. See Green v. Shearson Lehman/American Express, Inc., 625 F.Supp. 382, 383 (ED Pa. 1985) (dictum). It might be read to connote any party offering a witness, in which event Rule 609(a)(1)'s balance would apply to civil, as well as criminal, cases. E. g., Howard v. Gonzales, 658 F.2d 352 (CA5 1981). Finally, "defendant" may refer only to the defendant in a criminal case. See, e. g., Campbell, 831 F. 2d, at 703. These choices spawn a corollary question: must a judge allow prior felony impeachment of all civil witnesses as well as all criminal prosecution witnesses, or is Rule 609(a)(1) inapplicable to civil cases, in which event Rule 403 would authorize a judge to balance in such cases? Because the plain text does not resolve these issues, we must examine the history leading to enactment of Rule 609 as law.
At common law a person who had been convicted of a felony was not competent to testify as a witness. "[T]he disqualification arose as part of the punishment for the crime, only later being rationalized on the basis that such a person was unworthy of belief." 3 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 609, p. 609-58 (1988) (citing 2 J. Wigmore, Evidence § 519 (3d ed. 1940)). As the law evolved, this absolute bar gradually was replaced by a rule that allowed
A decade later the American Bar Association endorsed a rule that further limited impairment of any witness' credibility to convictions for crimes "involving dishonesty or false statement." National Conference of Commissioners, Uniform Rules of Evidence, Rule 21 (1953). As with Model Rule 106, this evidence would not be admitted against a witness-accused unless he adduced evidence supporting his credibility. Ibid. This code too afforded the judge discretion to exclude impeaching evidence in both criminal and civil trials if on balance he deemed it too prejudicial. See Rules 2, 45.
The only contemporaneous congressional enactment governing impeachment by prior convictions stated:
Nonetheless, the Advisory Committee embraced the Luck doctrine in its second draft. Issued in March 1971, this version of Rule 609(a) authorized the judge to exclude either felony or crimen falsi evidence upon determination that its probative value was "substantially outweighed by the danger
As had Luck's interpretation of the District of Columbia Code, the Advisory Committee's revision of Rule 609(a) met resistance. The Department of Justice urged that the Committee supplant its proposal with the strict, amended version of the District Code. Moore § 609.01[1. — 7], p. VI-111. Senator McClellan objected to the adoption of the Luck doctrine and urged reinstatement of the earlier draft.
The Advisory Committee backed off. As Senator McClellan had requested, it submitted as its third and final draft the same strict version it had proposed in March 1969. Rules of
This Court forwarded the Advisory Committee's final draft to Congress on November 20, 1972.
The House of Representatives did not accept the Advisory Committee's final proposal. A Subcommittee of the Judiciary Committee recommended an amended version similar to the text of the present Rule 609(a), except that it avoided the current Rule's ambiguous reference to prejudice to "the defendant." Rather, in prescribing weighing of admissibility of prior felony convictions, it used the same open-ended reference to "unfair prejudice" found in the Advisory Committee's second draft.
The House Judiciary Committee departed even further from the Advisory Committee's final recommendation, preparing a draft that did not allow impeachment by evidence of prior conviction unless the crime involved dishonesty or false
Representatives who advocated the automatic admissibility approach of the Advisory Committee's draft and those who favored the intermediate approach proposed by the Subcommittee both opposed the Committee's bill on the House floor. Four Members pointed out that the Rule applied in civil, as well as criminal, cases.
Conflict between the House bill, allowing impeachment only by crimen falsi evidence, and the Senate bill, embodying the Advisory Committee's automatic admissibility approach, was resolved by a Conference Committee.
Accord, Linskey v. Hecker, 753 F.2d 199, 201 (CA1 1985). Equally clear is the conferees' intention that the rule shield the accused, but not the prosecution,
But this emphasis on the criminal context, in the Report's use of terms such as "defendant" and "to convict" and in individual
A party contending that legislative action changed settled law has the burden of showing that the legislature intended such a change. Cf. Midlantic National Bank v. New Jersey Department of Environmental Protection, 474 U.S. 494, 502 (1986). The weight of authority before Rule 609's adoption accorded with the Advisory Committee's final draft, admitting all felonies without exercise of judicial discretion in
To the extent various drafts of Rule 609 distinguished civil and criminal cases, moreover, they did so only to mitigate prejudice to criminal defendants. Any prejudice that convictions impeachment might cause witnesses other than the accused was deemed "so minimal as scarcely to be a subject of comment." Advisory Committee's Note, 51 F. R. D., at 392. Far from voicing concern lest such impeachment unjustly diminish a civil witness in the eyes of the jury, Representative Hogan declared that this evidence ought to be used to measure a witness' moral value.
Had the conferees desired to protect other parties or witnesses, they could have done so easily. Presumably they had access to all of Rule 609's precursors, particularly the drafts prepared by the House Subcommittee and the Senate Judiciary Committee, both of which protected the civil litigant as well as the criminal defendant. Alternatively, the conferees could have amended their own draft to include other parties.
That conclusion does not end our inquiry. We next must decide whether Rule 609(a)(1) governs all prior felonies impeachment, so that no discretion may be exercised to benefit civil parties, or whether Rule 609(a)(1)'s specific reference to the criminal defendant leaves Rule 403 balancing available in the civil context.
Several courts, often with scant analysis of the interrelation between Rule 403 and Rule 609(a)(1), have turned to Rule 403 to weigh prejudice and probativeness of impeaching testimony in civil cases.
A general statutory rule usually does not govern unless there is no more specific rule. See D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932). Rule 403, the more general provision, thus comes into play only if Rule 609, though specific regarding criminal defendants, does not pertain to civil witnesses. See Advisory Committee's Note to Proposed Rule 403, 56 F. R. D., at 218. The legislative history
Rule 609(a) states that impeaching convictions evidence "shall be admitted."
Any argument that Rule 403 overrides Rule 609 loses force when one considers that the Rule contains its own weighing language, not only in subsection (a)(1), but also in sections (b), pertaining to older convictions, and (d), to juvenile adjudications. These latter balances, like Rule 609 in general, apply to both civil and criminal witnesses. See Fed. Rule Evid. 1101(b). Earlier drafts of subsection (a)(1) also contained balancing provisions that comprehended both types of witnesses; these, as we have shown, deliberately were eliminated by advocates of an automatic admissibility rule. The absence of balances within only two aspects of the Rule — crimen falsi convictions and felony convictions of witnesses other than those whose impeachment would prejudice a criminal defendant — must be given its proper effect. Thus Rule 609(a)(1)'s exclusion of civil witnesses from its weighing language is a specific command that impeachment of such witnesses be admitted, which overrides a judge's general discretionary authority under Rule 403. Courts relying on Rule 403 to balance probative value against prejudice to civil witnesses depart from the mandatory language of Rule 609.
We are confronted here with a statute which, if interpreted literally, produces an absurd, and perhaps unconstitutional, result. Our task is to give some alternative meaning to the word "defendant" in Federal Rule of Evidence 609(a)(1) that avoids this consequence; and then to determine whether Rule 609(a)(1) excludes the operation of Federal Rule of Evidence 403.
I think it entirely appropriate to consult all public materials, including the background of Rule 609(a)(1) and the legislative history of its adoption, to verify that what seems to us an unthinkable disposition (civil defendants but not civil plaintiffs receive the benefit of weighing prejudice) was indeed unthought of, and thus to justify a departure from the ordinary meaning of the word "defendant" in the Rule. For that purpose, however, it would suffice to observe that counsel have not provided, nor have we discovered, a shred of evidence that anyone has ever proposed or assumed such a bizarre disposition. The Court's opinion, however, goes well beyond this. Approximately four-fifths of its substantive analysis is devoted to examining the evolution of Federal Rule of Evidence 609, from the 1942 Model Code of Evidence, to the 1953 Uniform Rules of Evidence, to the 1965 Luck case and the 1970 statute overruling it, to the Subcommittee,
I find no reason to believe that any more than a handful of the Members of Congress who enacted Rule 609 were aware of its interesting evolution from the 1942 Model Code; or that any more than a handful of them (if any) voted, with respect to their understanding of the word "defendant" and the relationship between Rule 609 and Rule 403, on the basis of the referenced statements in the Subcommittee, Committee, or Conference Committee Reports, or floor debates — statements so marginally relevant, to such minute details, in such relatively inconsequential legislation. The meaning of terms on the statute books ought to be determined, not on the basis of which meaning can be shown to have been understood by a larger handful of the Members of Congress; but rather on the basis of which meaning is (1) most in accord with context and ordinary usage, and thus most likely to have been understood by the whole Congress which voted on the words of the statute (not to mention the citizens subject to it), and (2) most compatible with the surrounding body of law into which the provision must be integrated — a compatibility which, by a benign fiction, we assume Congress always has in mind. I would not permit any of the historical and legislative material discussed by the Court, or all of it combined, to lead me to a result different from the one that these factors suggest.
I would analyze this case, in brief, as follows:
(1) The word "defendant" in Rule 609(a)(1) cannot rationally (or perhaps even constitutionally) mean to provide the benefit of prejudice-weighing to civil defendants and not civil plaintiffs. Since petitioner has not produced, and we have not ourselves discovered, even a snippet of support for this absurd result, we may confidently assume that the word was
(2) The available alternatives are to interpret "defendant" to mean (a) "civil plaintiff, civil defendant, prosecutor, and criminal defendant," (b) "civil plaintiff and defendant and criminal defendant," or (c) "criminal defendant." Quite obviously, the last does least violence to the text. It adds a qualification that the word "defendant" does not contain but, unlike the others, does not give the word a meaning ("plaintiff" or "prosecutor") it simply will not bear. The qualification it adds, moreover, is one that could understandably have been omitted by inadvertence — and sometimes is omitted in normal conversation ("I believe strongly in defendants' rights"). Finally, this last interpretation is consistent with the policy of the law in general and the Rules of Evidence in particular of providing special protection to defendants in criminal cases.
(3) As well described by the Court, the "structure of the Rules," ante, at 525, makes it clear that Rule 403 is not to be applied in addition to Rule 609(a)(1).
I am frankly not sure that, despite its lengthy discussion of ideological evolution and legislative history, the Court's reasons for both aspects of its decision are much different from mine. I respectfully decline to join that discussion, however, because it is natural for the bar to believe that the juridical
For the reasons stated, I concur in the judgment of the Court.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
Federal Rule of Evidence 609(a) has attracted much attention during its relatively short life. This is due in no small part to its poor and inartful drafting. See, e. g., 10 J. Moore & H. Bendix, Moore's Federal Practice § 609.14, p. V-148 (2d ed. 1988); Foster, Rule 609(a) in the Civil Context: A Recommendation for Reform, 57 Ford. L. Rev. 1, 4 (1988); Younger, Three Essays on Character and Credibility under the Federal Rules of Evidence, 5 Hofstra L. Rev. 7, 11-12 (1976); Savikas, New Concepts in Impeachment: Rule 609(a), Federal Rules of Evidence, 57 Chicago Bar Rec. 76 (1975). As noted by the majority, ante, at 510-511, the Rule's use of the word "defendant" creates inescapable ambiguity. The majority concludes that Rule 609(a)(1) cannot mean what it says on its face. Ante, at 511. I fully agree.
I fail to see, however, why we are required to solve this riddle of statutory interpretation by reading the inadvertent word "defendant" to mean "criminal defendant." I am persuaded that a better interpretation of the Rule would allow the trial court to consider the risk of prejudice faced by any party, not just a criminal defendant. Applying the balancing provisions of Rule 609(a)(1) to all parties would have prevented the admission of unnecessary and inflammatory
The majority's lengthy recounting of the legislative history of Rule 609, ante, at 513-514, demonstrates why almost all that history is entitled to very little weight. Because the proposed rule changed so often — and finally was enacted as a compromise between the House and the Senate — much of the commentary cited by the majority concerns versions different from the Rule Congress finally enacted.
The only item of legislative history that focuses on the Rule as enacted is the Report of the Conference Committee, H. R. Conf. Rep. No. 93-1597 (1974). Admittedly, language in the Report supports the majority's position: the Report mirrors the Rule in emphasizing the prejudicial effect on the defendant, and also uses the word "convict" to describe the potential outcome. Id., at 9-10. But the Report's draftsmanship is no better than the Rule's, and the Report's plain language is no more reliable an indicator of Congress' intent than is the plain language of the Rule itself.
Because the slipshod drafting of Rule 609(a)(1) demonstrates that clarity of language was not the Conference's forte, I prefer to rely on the underlying reasoning of the Report, rather than on its unfortunate choice of words, in ascertaining the Rule's proper scope. The Report's treatment of the Rule's discretionary standard consists of a single paragraph. After noting that the Conference was concerned with prejudice to a defendant, the Report, at 9-10, states:
The Report indicates that the Conference determined that any felony conviction has sufficient relevance to a witness' credibility to be admitted, even if the felony had nothing directly to do with truthfulness or honesty. In dealing with the question of undue prejudice, however, the Conference drew a line: it distinguished between two types of prejudice, only one of which it permitted the trial court to consider.
As the Conference observed, admitting a prior conviction will always "prejudice" a witness, who, of course, would prefer that the conviction not be revealed to the public. The Report makes clear, however, that this kind of prejudice to the witness' life outside the courtroom is not to be considered in the judicial balancing required by Rule 609(a)(1). Rather, the kind of prejudice the court is instructed to be concerned with is prejudice which "presents a danger of improperly influencing the outcome of the trial." Congress' solution to that kind of prejudice was to require judicial supervision: the conviction may be admitted only if "the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant." Rule 609(a)(1).
Although the Conference expressed its concern in terms of the effect on a criminal defendant, the potential for prejudice to the outcome at trial exists in any type of litigation, whether criminal or civil, and threatens all parties to the litigation. The Report and the Rule are best read as expressing Congress' preference for judicial balancing whenever there is a chance that justice shall be denied a party because
It may be correct, as JUSTICE SCALIA notes in his opinion concurring in the judgment, that interpreting "prejudicial effect to the defendant" to include only "prejudicial effect to [a] criminal defendant," and not prejudicial effect to other categories of litigants as well, does the "least violence to the text," ante, at 529, if what we mean by "violence" is the interpolation of excess words or the deletion of existing words. But the reading endorsed by JUSTICE SCALIA and the majority does violence to the logic of the only rationale Members of Congress offered for the Rule they adopted.
Certainly the possibility that admission of a witness' past conviction will improperly determine the outcome at trial is troubling when the witness' testimony is in support of a criminal defendant. The potential, however, is no less real for other litigants. Unlike JUSTICE SCALIA, I do not approach the Rules of Evidence, which by their terms govern both civil and criminal proceedings, with the presumption that their general provisions should be read to "provid[e] special protection to defendants in criminal cases." Ibid. Rather, the Rules themselves specify that they "shall be construed to secure fairness in administration . . . to the end that the truth may be ascertained and proceedings justly determined" in all cases. Rule 102. The majority's result does not achieve that end.
The interpretation the majority adopts today, which limits the word "defendant" to mean less than it appears to mean on its face, creates an additional danger: the Rule as so interpreted
As I see it, therefore, our choice is between two interpretations of Rule 609(a)(1), neither of which is completely consistent with the Rule's plain language. The majority's interpretation takes protection away from litigants — i. e., civil
This case should have been decided on the basis of whether the Bock Laundry Machine Company designed and sold a dangerously defective machine without providing adequate warnings. The fact that Paul Green was a convicted felon, in a work-release program at a county prison, has little, if anything, to do with these issues. We cannot know precisely why the jury refused to compensate him for the sad and excruciating loss of his arm, but there is a very real possibility that it was influenced improperly by his criminal record. I believe that this is not a result Congress conceivably could have intended, and it is not a result this Court should endorse.
As the majority concludes otherwise, my hope is that Rule 609(a)(1) will be corrected without delay, preferably into a form that allows judicial oversight over, at the least, the use of any felony conviction that does not bear directly on a witness' honesty. It is encouraging that some efforts in this direction appear to be underway, see ante, at 523, n. 29, and that the damage Congress caused by its poor draftsmanship soon may be undone.
I respectfully dissent.
"Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
"[W]hen it is proved that a witness has been convicted of a crime, the only ground for disbelieving him which such proof affords is the general readiness to do evil which the conviction may be supposed to show. It is from that general disposition alone 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 no tendency to prove that he was mistaken, but only that he has perjured himself, and it reaches that conclusion solely through the general proposition that he is of bad character and unworthy of credit." Gertz v. Fitchburg Railroad Co., 137 Mass. 77, 78 (1884).
Questions about the relevancy and fairness of such evidence did not abate, see n. 11, infra, and persisted even after enactment in 1975 of the Federal Rules of Evidence. E. g., Shows v. M/V Red Eagle, 695 F.2d 114, 118 (CA5 1983); 10 J. Moore & H. Bendix, Moore's Federal Practice § 609.02, pp. VI-134 to VI-135 (2d ed. 1988) (hereinafter Moore); 3 D. Louisell & C. Mueller, Federal Evidence § 315, pp. 316-319 (1979) (hereinafter Louisell); Foster, Rule 609(a) in the Civil Context: A Recommendation for Reform, 57 Ford. L. Rev. 1 (1988); Note, Prior Convictions Offered for Impeachment in Civil Trials: The Interaction of Federal Rules of Evidence 609(a) and 403, 54 Ford. L. Rev. 1063 (1986).
While a Court of Appeals Judge, William Howard Taft, having determined that both common law and an Ohio statute permitted prior felonies impeachment in criminal cases, stated: "It is difficult to see any reason why the legislature should permit the credibility of a witness in a criminal case to be attacked by proof of former conviction, but should withhold such permission in civil cases." Baltimore & O. R. Co. v. Rambo, 59 F. 75, 79 (CA6 1893). He concluded that evidence that a civil defendant's witness had been convicted of burglary could be admitted as impeachment, though not in the plaintiff's case in chief. See also Wounick v. Hysmith, 423 F.2d 873 (CA3 1970) (Circuit precedent permitted admission of all crimen falsi convictions); Oklahoma ex rel. Nesbitt v. Allied Materials Corp., 312 F.Supp. 130, 133 (WD Okla. 1968); Taylor v. Atchison, T. & S. F. R. Co., 33 F. R. D. 283, 285 (WD Mo. 1962).
Among those who seemed to strain against the conventional rule was Judge Learned Hand, who, in allowing impeachment of a civil antitrust defendant by evidence of a nolo contendere plea, wrote:
"[S]o far as we can see, the greater number of jurisdictions allow the conviction as evidence to impeach a witness. Where there is a doubt as to the competency of evidence, Federal Rules of Civil Procedure, rule 43(a) . . . admonishes us to admit it rather than to exclude it; and for that reason we think it should have been here admitted. In all such cases there is of course the danger that the jury will use the plea as an admission of the `operative' facts; but that is equally true of a conviction on a plea of guilty or on a verdict. Whether the attempt is ever practicable to limit its use to the witness's credibility, and whether, if not, its use is an injustice, are not open questions for us." Pfotzer v. Aqua Systems, Inc., 162 F.2d 779, 785 (CA2 1947).
See also Pasternak v. Pan American Petroleum Corp., 417 F.2d 1292 (CA10 1969) (exercising discretion despite contrary state rule); Ruffalo's Trucking Service, Inc. v. National Ben-Franklin Insurance Co. of Pittsburgh, 243 F.2d 949 (CA2 1957) (holding state law permits discretion).
"The trial court is not required to allow impeachment by prior conviction every time a defendant takes the stand in his own defense. The statute, in our view, leaves room for the operation of a sound judicial discretion to play upon the circumstances as they unfold in a particular case. There may well be cases where the trial judge might think that the cause of truth would be helped more by letting the jury hear the defendant's story than by the defendant's foregoing [sic] that opportunity because of the fear of prejudice founded upon a prior conviction. There may well be other cases where the trial judge believes the prejudicial effect of impeachment far outweighs the probative relevance of the prior conviction to the issue of credibility. This last is, of course, a standard which trial judges apply every day in other contexts; and we think it has both utility and applicability in this field." Luck v. United States, 121 U. S. App. D. C. 151, 156, 348 F.2d 763, 768 (1965) (emphasis in original) (footnote omitted).
"for the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a criminal offense shall be admitted if offered, . . . but only if the criminal offense (A) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (B) involved dishonesty or false statement (regardless of punishment)."
"(a) GENERAL RULE. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment." Id., at 295-296.
"General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement regardless of the punishment, unless (3) in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice." Revised Draft of Proposed Rules of Evidence, 51 F. R. D. 315, 391 (1971) (emphasis supplied).
"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the crime (1) was punishable by death or imprisonment in excess of one year, unless the Court determines that the danger of unfair prejudice outweighs the probative value of the evidence of the conviction, or (2) involved dishonesty or false statement." H. R. Rep. No. 93-650, p. 11 (1973).
Compare ibid., with Federal Rule of Evidence 609(a) and Proposed Rule of Evidence 609(a), 51 F. R. D., at 391.
"(a) General Rule. — For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible only if the crime involved dishonesty or false statement." 120 Cong. Rec. 2374 (1974).
Representative Dennis, defending the version that he had shepherded through the House Judiciary Committee and onto the House floor, maintained that it too
"does not apply only to a man who is a defendant in a criminal case, but it applies to any witness. Under the rule that the gentleman has in his amendment, if 20 years ago you were guilty of some misdemeanor and were called in as a witness in a civil case, then they could ask you about it, although that case had nothing to do with the case on trial before you." Id., at 2377.
"The difficulty here," Representative Wiggins foresaw, "is we are dealing with a complex problem and are trying to fashion a single rule adequate to take care of the problem . . . . [F]urther draftsmanship is necessary to spin off criminal cases from civil cases, to separate the nonparty witness problem from the party witness problem. As we deal with the total problem under a single rule, we create all this uncertainty and the possibility of inequity . . . ." Id., at 2379.
Supporting Representative Hogan's rule of admissibility for all felonies, Representative Lott commented:
"[I]t is essential to recognize that this is a rule that would have application in both civil and criminal cases, and which would apply not only to witnesses for the defense, but witnesses for the plaintiff or the prosecution as well. . . . [A] jury is entitled to all the evidence bearing on the witness's tendency to tell the truth." Id., at 2381.
"(a) General Rule. — For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime may be elicited from him or established by public record during cross-examination but only if the crime (1) involved dishonesty or false statement or (2) in the case of witnesses other than the accused, was punishable by death or imprisonment in excess of one year under the law under which he was convicted, but only if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect." 120 Cong. Rec. 37076 (1974).
"[N]ow a defendant can cross examine a government witness about any of his previous felony convictions; he can always do it, because that will not prejudice him in anyway. . . . Only the government is going to be limited. . . ." Ibid. (remarks of Rep. Dennis).
See also Cleary § 43, at 94; Louisell § 316, at 325.
"[Y]ou can ask about all . . . felonies on cross examination, only if you can convince the court, and the burden is on the government, which is an important change in the law, that the probative value of the question is greater than the damage to the defendant; and that is damage or prejudice to the defendant alone." Id., at 40894 (emphases supplied).
In the same debate Representative Hogan manifested awareness of the Rule's broad application. While supporting the compromise, he reiterated his preference for a rule
"that, for the purpose of attacking the credibility of a witness, even if the witness happens to be the defendant in a criminal case, evidence that he has been convicted of a crime is admissible and may be used to challenge that witness' credibility if the crime is a felony or is a misdemeanor involving dishonesty of [sic] false statement." Id., at 40895 (emphasis added).
"Personally I am more concerned about the moral worth of individuals capable of engaging in such outrageous acts as adversely reflecting on a witness' character than I am of thieves . . . ." Id., at 2376.
Recently, two Advisory Committees proposed versions of Rule 609(a)(1) that expressly protect all witnesses. The preliminary draft of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States provides that a witness other than a criminal defendant may be impeached by a conviction for a felony unrelated to truthfulness only after balancing according to Federal Rule of Evidence 403. Proposed Amendments to the Federal Rules of Appellate Procedure, Federal Rules of Civil Procedure, Federal Rules of Criminal Procedure, Federal Rules of Bankruptcy Procedure, and the Federal Rules of Evidence. Meanwhile, the Committee on Rules of Criminal Procedure and Evidence of the American Bar Association's Criminal Justice Section recommends deleting "to the defendant" from Rule 609(a)(1), thus requiring courts simply to "determin[e] that the probative value of admitting this evidence outweighs its prejudicial effect." Federal Rules of Evidence: A Fresh Review and Evaluation 56 (1987).
"Judge FRIENDLY. . . . [O]f course, there is the overriding rule that the judge can always exclude testimony where probative value he thinks is outweighed by its prejudicial effect and perhaps in the case we are discussing he should do that.
"Mr. HUNGATE. Would that be true with or without the rules?
"Judge FRIENDLY. That is true today.
"Mr. HUNGATE. Would it remain true if these rules became effective?
"Judge FRIENDLY. I assume they have such a rule in here. I could easily check.
"Mr. DENNIS. It seems to me if he has to follow this rule he does not have much discretion. Maybe he still could rule something out. I am not sure.
"Mr. HUNGATE. I believe section 403 is the rule to which you are referring. . . .
"Judge FRIENDLY. I think . . . Congressman [Dennis'] point is a good one. You have the problem: Does that apply when there is a specific rule on the subject? This just says relevant evidence may be excluded if it has this effect. But then somebody is going to argue, this other rule dealt very specifically with the question and rule 403 is out. I don't know what the answer would be." Hearings on Proposed Rules of Evidence before the Special Subcommittee on Reform of Federal Criminal Laws of the House Committee on the Judiciary, 93d Cong., 1st Sess., pp. 251-252 (1973).
See also 120 Cong. Rec. 2381 (1974) (remarks of Rep. Lott) (suggesting that if automatic admissibility rule were adopted, Rule 403 balancing would be available). Cf. Campbell, 831 F. 2d, at 705.