Indiana Law Journal

Document Type


Publication Date

Spring 2000

Publication Citation

84 Indiana Law Journal 521 (2009)


The election of Barack Obama as the nation's first Black President was a watershed moment with respect to race relations in the United States. Obama's election removed what to many seemed a nearly insurmountable racial barrier. Yet as he transitions into his historic role and his family becomes the first Black occupants of the White House, scores of Blacks are housed in jails and prisons across the country. The mass incarceration of Blacks, among other serious issues, demonstrates that race still matters in the United States. As then-presidential candidate Obama acknowledged in the speech that many viewed to be pivotal in his campaign, race is still an issue in this country, an issue that we cannot afford to ignore. Obama's words ring true particularly in the area of criminal justice. Indeed, several months before Obama's speech on race, the "Jena Six" case, which sparked what many are calling the new civil rights movement, reminded us that the criminal justice system is still a two-tiered system that is, in many ways, racially biased. The system and society at large have criminalized the very fact of being Black. The construction of Black criminality is facilitated in the justice system largely through racially biased rules.

This Article critiques one such rule-the deeply entrenched evidentiary rule that allows prosecutors to impeach the credibility of criminal defendants with their prior convictions. This Article demonstrates that the prior conviction impeachment rule gives evidentiary value to race through its reliance on a criminal justice system that imposes the "Black tax, " an unjustified disadvantage to Blacks, and granting the "White credit," an undeserved benefit to Whites. This Article argues that prior convictions are therefore unreliable hearsay. Though scholars have condemned the prior conviction impeachment rule because of the grave potential that jurors will misuse the convictions as evidence of criminal defendants' guilt, they have merely assumed, without analysis, that prior convictions are inherently reliable. Prior convictions fit the classic definition of hearsay. The rule that provides for their admissibility exists as an exception to the rule against hearsay only because convictions are deemed inherently reliable. The presumption of reliability stems from the fact that the convictions are pronouncements from other courts.

Scholars have critiqued the prior conviction rule as ifit operates in a race neutral manner. This Article challenges the notion that prior convictions are inherently reliable, arguing that the mounting evidence of racial bias in the criminal justice system renders prior convictions so unreliable that they raise serious due process concerns for criminal defendants. This Article also offers solutions. Congress and state legislatures should eliminate the use of prior convictions against criminal defendants. Unless or until there is legislative intervention, courts should require prosecutors to establish the reliability of the convictions that they offer for impeachment and also allow defendants to "impeach" the credibility of the criminal justice system, which is the hearsay "declarant. "