Document Type

Article

Publication Date

2019

Abstract

Evidence law in North Carolina senselessly punishes victims of domestic and sexual violence by broadly sanctioning witness impeachment with prior convictions – no matter the implicit prejudice to the witness or how little the conviction bears on credibility. The North Carolina approach is an outlier. Under Rule 609 of the Federal Rules of Evidence, the use of conviction evidence for impeaching witness credibility is confined to felonies and crimes involving dishonest acts or false statements. Their use must also satisfy judicial balancing tests aimed at protecting against unfair prejudice to the witness. The majority of states take a similar or even more restrictive approach. North Carolina’s corresponding rule, however, casts a far wider net. It broadly permits parties to impeach witnesses with an array of convictions, including innocuous misdemeanors, and affords no judicial discretion to protect the witness or weigh the potential for juror misuse. The implications are unavoidable. For survivors of domestic and sexual violence, the state’s approach to conviction-based impeachment can be especially devastating. This Article explores one of the most controversial rules of evidence – impeaching a witness with her prior convictions – through the lens of North Carolina’s broad impeachment rule. The impact of the rule can no longer be ignored, and this Article argues that change is long overdue. This Article discusses the genesis of conviction-based impeachment and its modern usage. It spotlights how the North Carolina rule enables trial lawyers to levy a barrage of questions at a witness to suggest overtly that the witness is a liar while covertly implying the witness is a person of untoward character. By exposing the rule’s impact on victims, particularly sexual assault and domestic violence survivors, the Article reveals how impeachment by prior-conviction evidence in North Carolina is used as a pretext for improperly assailing a witness’s character. The Article concludes by proposing statutory reforms to limit prior conviction evidence to its proper purpose while halting the abuses currently sanctioned by the rule.

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