Green v. Bock Laundry Machine Company/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, 108 S.Ct. 2843, 101 L.Ed.2d 881 (1988).

While in custody at a county prison, petitioner Paul Green obtained work-release employment at a car wash. On his sixth day at work, Green reached inside a large dryer to try to stop it. A heavy rotating drum caught and tore off his right arm. Green brought this product liability action against respondent Bock Laundry Co. (Bock), manufacturer of the machine. At trial Green testified that he had been instructed inadequately concerning the machine's operation and dangerous character. Bock impeached Green's testimony by eliciting admissions that he had been convicted of conspiracy to commit burglary and burglary, both felonies. The jury returned a verdict for Bock. On appeal Green argued that the District Court had erred by denying his pretrial motion to exclude the impeaching evidence. The Court of Appeals summarily affirmed the District Court's ruling. 845 F.2d 1011 (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, 105 S.Ct. 2157, 85 L.Ed.2d 513 (1985). Writing for the panel majority, Judge Maris, who had headed the Advisory Committee that proposed a federal code of evidence to this Court, concluded in Diggs that Rule 609 mandated admission for impeachment purposes of a civil plaintiff's prior felony convictions. He relied on the legislative history of Rule 609 as establishing that Congress intended Rule 609 to govern both criminal and civil proceedings. 741 F.2d, at 581. He also concluded that a judge may not balance prejudice and probativeness pursuant to Rule 403 in order to circumvent Rule 609(a)(2)'s requirement that all convictions pertaining to dishonesty-often called crimen falsi evidence-be admitted. Ibid. Rule 609's specific command, he wrote, forecloses judicial exercise of Rule 403 discretion to exclude evidence of felony convictions. Id., at 582. The only situation in which Rule 609(a) allows the trial judge discretion to bar impeachment by prior felony convictions is when admission would unduly prejudice the defendant in a criminal case. Ibid. Judge Maris concluded with this comment:

"[T]he scope of Rule 609 has been and is the subject of     widespread controversy and strongly held divergent views.  We      have felt compelled to give the rule the effect which the      plain meaning of its language and the legislative history      require.  We recognize that the mandatory admission of all      felony convictions on the issue of credibility may in some      cases produce unjust and even bizarre results.  Evidence that      a witness has in the past been convicted of manslaughter by      automobile, for example, can have but little relevance to his      credibility as a witness in a totally different matter.  But      if the rule is to be amended to eliminate these possibilities      of injustice, it must be done by those who have the authority      to amend the rules, the Supreme Court and the Congress. . . .      It is not for us as enforcers of the rule to amend it under      the guise of construing it." Ibid.

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 regarding impeachment of civil plaintiffs to "legislative oversight." Ibid. And he noted that other Circuits had concluded, contrary to the panel majority, "that the mandatory admission feature of prior crimen falsi convictions does not apply to the admissibility of prior felony convictions in civil cases." Ibid. Placing the use of prior felony conviction evidence outside the reach of the judge's discretion, he declared, "makes no sense whatever." Ibid.

Both the majority and dissenting opinions in Diggs convey dissatisfaction with automatic admissibility of prior felony onvictions to impeach civil witnesses, especially civil plaintiffs. Indeed, criticism of this result is longstanding and widespread. Our task in deciding this case, however, is not to fashion the rule we deem desirable but to identify the rule that Congress fashioned. We begin by considering the extent to which the text of Rule 609 answers the question before us. Concluding that the text is ambiguous with respect to civil cases, we then seek guidance from legislative history and from the Rules' overall structure.

* Federal Rule of Evidence 609(a) provides:

"General Rule. For the purpose of attacking the      credibility of a witness, evidence that the witness has been      convicted of a crime shall be admitted if elicited from the      witness or established by public record during      cross-examination but only if the crime (1) was punishable by      death or imprisonment in excess of one year under the law      under which the witness was convicted, and the court      determines that the probative value of admitting this      evidence outweighs its prejudicial effect to the defendant,      or (2) involved dishonesty or false statement, regardless of      the punishment."

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." Ibid. It follows that impeaching evidence detrimental to the prosecution in a criminal case "shall be admitted" without any such balancing. Ibid.

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 leads to the conclusion that the evidence was admissible. In fact, under this construction of the Rule, impeachment detrimental to a civil plaintiff always would have to be admitted.

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. The Sixth Amendment to the Constitution guarantees a criminal defendant certain fair trial rights not enjoyed by the prosecution, while the Fifth Amendment lets the accused choose not to testify at trial. In contrast, civil litigants in federal court share equally the protections of the Fifth Amendment's Due Process Clause. Given liberal federal discovery rules, the inapplicability of the Fifth Amendment's protection against self-incrimination, and the need to prove their case, civil litigants almost always must testify in depositions or at trial. Denomination as a civil defendant or plaintiff, moreover, is often happenstance based on which party filed first or on the nature of the suit. Evidence that a litigant or his witness is a convicted felon tends to shift a jury's focus from the worthiness of the litigant's position to the moral worth of the litigant himself. It is unfathomable why a civil plaintiff but not a civil defendant should be subjected to this risk. Thus we agree with the Seventh Circuit that as far as civil trials are concerned, Rule 609(a)(1) "can't mean what it says." Campbell v. Greer, 831 F.2d 700, 703 (1987).

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, W instein's Evidence ¶ 609[02], 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 such witnesses to testify in both civil and criminal cases, but also to be impeached by evidence of a prior felony conviction or a crimen falsi misdemeanor conviction. In the face of scholarly criticism of automatic admission of such impeaching evidence, some courts moved toward a more flexible approach.

In 1942, the American Law Institute proposed a rule that would have given the trial judge discretion in all cases to exclude evidence of prior convictions of any witness if "its probative value is outweighed by the risk that its admission will . . . create substantial danger of undue prejudice. . . ." Model Code of Evidence, Rule 303 (1942); see Rule 106. No such evidence could be admitted against a witness-accused unless he first introduced "evidence for the sole purpose of supporting his credibility." Rule 106(3).

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:

"No person shall be incompetent to testify, in either civil     or criminal proceedings, by reason of his having been      convicted of crime, but such fact may be given in evidence to      affect his credit as a witness, either upon the      cross-examination of the witness or evidence aliunde. . . ."      D.C.Code Ann. § 14-305 (1961).

This provision of the District of Columbia Code traditionally had been interpreted to require the admission of prior conviction evidence. McGowan, 1970 Law & Social Order 1. But in reviewing a defendant's challenge to admission of a grand larceny conviction to impeach his testimony at his trial on housebreaking and larceny charges, the Court of Appeals for the District of Columbia Circuit noted that the Rule said conviction evidence "may," not "shall," be admitted; therefore, a judge was not required to allow such impeachment. Luck v. United States, 121 U.S.App.D.C. 151, 156, 348 F.2d 763, 768 (1965). In effect, the court conditioned admissibility on the kind of judicial balancing expressly provided in the Uniform Rules and Model Code. Id., at 156, n. 8, 348 F.2d, at 768, n. 8. Far from welcoming this innovation, the Federal Department of Justice in 1969 proposed changing the code to overrule Luck, and in 1970 Congress amended the District of Columbia Code to provide that both prior felony and crimen falsi impeaching evidence "shall be admitted."

Amid controversy over Luck, a distinguished Advisory Committee appointed at the recommendation of the Judicial Conference of the United States submitted in March 1969 the first draft of evidence rules to be used in all federal civil and criminal proceedings. Rule 6-09, forerunner of Federal Rule of Evidence 609, allowed all crimen falsi and felony convictions evidence without mention of judicial discretion. The Committee reasoned that "[d]angers of unfair prejudice, confusion of issues, misleading the jury, waste of time, and surprise" inherent in the admission of evidence of witness misconduct "tend to disappear or diminish" when the evidence is based on a conviction. Preliminary Draft of Proposed Rules of Evidence, Advisory Committee's Note, 46 F.R.D. 161, 297 (1969). Having considered five options-including the Luck doctrine-for further reducing risks to a witness-accused, the Committee found none acceptable, and so proposed a rule that "adheres to the traditional practice of allowing the witness-accused to be impeached by evidence of conviction of crime, like other witnesses." Id., at 299.

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 of unfair prejudice." Revised Draft of Proposed Rules of Evidence, 51 F.R.D. 315, 391 (1971). The Committee specified that its primary concern was prejudice to the witness-accused; the "risk of unfair prejudice to a party in the use of [convictions] to impeach the ordinary witness is so minimal as scarcely to be a subject of comment." Advisory Committee's Note, id., at 392. Yet the text of the proposal was broad enough to allow a judge to protect not only criminal defendants, but also civil litigants and nonparty witnesses, from unfair prejudice. Cf. ibid. (safeguards in Rule 609(b), (c), (d) apply to all witnesses).

As had Luck § 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 Evidence, 56 F.R.D. 183, 269-270 (1973). The Committee's Note explained:

"The weight of traditional authority has been to allow use of     felonies generally, without regard to the nature of the      particular offense, and of crimen falsi without regard to the      grade of the offense.  This is the view accepted by Congress      in the 1970 amendment of § 14-305 of the District of Columbia      Code. . . .  Whatever may be the merits of [other] views,      this rule is drafted to accord with the Congressional policy      manifested in the 1970 legislation." Id., at 270.

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 statement. Motivating the change were concerns about the deterrent effect upon an accused who might wish to testify and the danger of unfair prejudice, "even upon a witness who was not the accused," from allowing impeachment by prior felony convictions regardless of their relation to the witness' veracity. H.R.Rep. No. 93-650, p. 11 (1973), U.S.Code Cong. & Admin.News 1974, pp. 7051, 7084, 7085. Although the Committee Report focused on criminal defendants and did not mention civil litigants, its express concerns encompassed all nonaccused witnesses.

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. The House voted to adopt the Rule as proposed by its Judiciary Committee.

The Senate Judiciary Committee proposed an intermediate path. For criminal defendants, it would have allowed impeachment only by crimen falsi evidence; for other witnesses, it also would have permitted prior felony evidence only if the trial judge found that probative value outweighed "prejudicial effect against the party offering that witness." This language thus required the exercise of discretion before prior felony convictions could be admitted in civil litigation. But the full Senate, prodded by Senator McClellan, reverted to the version that the Advisory Committee had submitted. See 120 Cong.Rec. 37076, 37083 (1974).

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. The conferees' compromise-enacted as Federal Rule of Evidence 609(a)(1)-authorizes impeachment by felony convictions, "but only if" the court determines that probative value outweighs "prejudicial effect to the defendant." The Conference Committee's Report makes it perfectly clear that the balance set forth in this draft, unlike the second Advisory Committee and the Senate Judiciary Committee versions, does not protect all nonparty witnesses:

"The danger of prejudice to a witness other than the     defendant (such as injury to the witness' reputation in his      community) was considered and rejected by the Conference as      an element to be weighed in dete mining admissibility.  It      was the judgment of the Conference that the danger of      prejudice to a nondefendant witness is outweighed by the need      for the trier of fact to have as much relevant evidence on      the issue of credibility as possible." H.R.Conf.Rep. No. 93-1597, pp. 9-10 (1974), U.S.Code Cong. & Admin.News 1974,     p. 7103.

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, in a criminal case. Impeachment by convictions, the Committee Report stated, "should only be excluded where it presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record." H.R.Conf.Rep. No. 93-1597, supra, at 10.

But this emphasis on the criminal context, in the Report's use of terms such as "defendant" and "to convict" and in individual conferees' explanations of the compromise, raises some doubt over the Rule's pertinence to civil litigants. The discussions suggest that only two kinds of witnesses risk prejudice-the defendant who elects to testify in a criminal case and witnesses other than the defendant in the same kind of case. Nowhere is it acknowledged that undue prejudice to a civil litigant also may improperly influence a trial's outcome. Although this omission lends support to Judge Gibbons' opinion that "legislative oversight" caused exclusion of civil parties from Rule 609(a)(1)'s balance, see Diggs, 741 F.2d, at 583, a number of considerations persuade us that the Rule was meant to authorize a judge to weigh prejudice against no one other than a criminal defendant.

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, 106 S.Ct. 755, 760, 88 L.Ed.2d 859 (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 either civil or criminal cases. Departures from this general rule had occurred overtly by judicial interpretation, as in Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965), or in evidence codes, uch as the Model Code and the Uniform Rules. Rule 609 itself explicitly adds safeguards circumscribing the common-law rule. See Advisory Committee's Note, 56 F.R.D., at 270-271. The unsubstantiated assumption that legislative oversight produced Rule 609(a)(1)'s ambiguity respecting civil trials hardly demonstrates that Congress intended silently to overhaul the law of impeachment in the civil context. Cf. NLRB v. Plasterers, 404 U.S. 116, 129-130, 92 S.Ct. 360, 368-369, 30 L.Ed.2d 312 (1971).

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. Furthermore, Representative Dennis-who in advocating a Rule limiting impeachment to crimen falsi convictions had recognized the impeachment Rule's applicability to civil trials-not only debated the issue on the House floor, but also took part in the conference out of which Rule 609 emerged. See 120 Cong.Rec. 2377-2380, 39942, 40894-40895 (1974). These factors indicate that Rule 609(a)(1)'s textual limitation of the prejudice balance to criminal defendants resulted from deliberation, not oversight.

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. They did not for the simple reason that they intended that only the accused in a criminal case should be protected from unfair prejudice by the balance set out in Rule 609(a)(1).

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. Judge Gibbons, dissenting in Diggs, 741 F.2d, at 583, labeled this a "sensible approach." Indeed it may be. Prodigious scholarship highlighting the irrationality and unfairness of impeaching credibility with evidence of felonies unrelated to veracity indicates that judicial exercise of discretion is in order. If Congress intended otherwise, however, judges must adhere to its decision.

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, 52 S.Ct. 322, 323, 76 L.Ed. 704 (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 evinces some confusion about Rule 403's applicability to a version of Rule 609 that included no balancing language. That confusion is not an obstacle because the structure of the Rules as enacted resolves the question.

Rule 609(a) states that impeaching convictions evidence "shall be admitted." With regard to subpart (2), which governs impeachment by crimen falsi convictions, it is widely agreed that this imperative, coupled with the absence of any balancing language, bars exercise of judicial discretion pursuant to Rule 403. Subpart (1), concerning felonies, is subject to the same mandatory language; accordingly, Rule 403 balancing should not pertain to this subsection either.

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.

In summary, we hold that Federal Rule of Evidence 609(a)(1) requires a judge to permit impeachment of a civil witness with evidence of prior felony convictions regardless of ensuant unfair prejudice to the witness or the party offering the testimony. Thus no error occurred when the jury in this product liability suit learned through impeaching cross-examination that plaintiff Green was a convicted felon. The judgment of the Court of Appeals i

Affirmed.