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- Title
NEITHER SEEN NOR HEARD: IMPEACHMENT BY PRIOR CONVICTION AND THE CONTINUED FAILURE OF THE WISCONSIN RULE TO PROTECT THE CRIMINAL DEFENDANT-WITNESS.
- Authors
STRAKA, ALEXANDER
- Abstract
The evidentiary rule "impeachment by prior conviction" is grounded in the common law assumption that a person convicted of a crime is less credible than a person not convicted of a crime. It followed that convicted individuals testifying at trial may be impeached merely by their conviction record. In the wake of decades of research challenging the validity of the rule's underlying assumption, as well as its utility, the federal government and at least a majority of states revised their evidentiary rules to protect the criminal defendant-witness from its prejudicial effect. Compared to the rest of the country, Wisconsin stood as a bulwark against any statutory revision or case law interpretation that would mitigate the prejudicial effect to the criminal defendant-wimess. But after four decades of stasis, the Wisconsin Supreme Court and the Wisconsin Judicial Council ushered in the most substantial revision to the Wisconsin Rule on impeachment by prior conviction (Wis. Stat. 906.09) in October 2017. Despite the revision, this Comment argues that the revised Wisconsin Rule continues to be less favorable to the criminal defendantwitness than its federal counterpart, which is unjustified by modern-day practices and constitutional contexts. Put simply, and despite presumably the best intentions of the revisers, the Wisconsin Rule still fails the criminal defendant. First, this Comment describes the history of the Wisconsin Rule and its underlying assumptions. This Comment then discusses the revised Wisconsin Rule's shortcomings compared to the federal rule and explains how it operates to the detriment of the criminal defendant-witness, by detailing its "balancing test" presumption, exclusive reliance on judicial discretion without providing an adequate guide, and one-of-a-kind "counting rule." Accordingly, this Comment advocates for an overlooked, but simple, solution: reformative incrementalism by which the policymakers take meaningful steps to bridge the divide between the Wisconsin Rule and its federal counterpart.
- Subjects
IMPEACHMENT of witnesses; WISCONSIN. Supreme Court; CRIMINAL defendants; RIGHT to testify; CRIMINAL procedure
- Publication
Wisconsin Law Review, 2018, Vol 2018, Issue 6, p1193
- ISSN
0043-650X
- Publication type
Article