Ethics, Morality, and Truth-Telling

The most troublesome of these examples is the last-impeachment by prior conviction. Jethro Lieberman's book, The Litigious Society, argues that to impeach a witness to save your client is like a bodyguard throwing an innocent person in the path of a bullet.66 Until 1993 the Criminal Defense Standards suggested that impeachment by prior conviction should be avoided if the witness is testifying truthfully.67 Lieberman's argument reminds one of the dangers of analogy, and the Defense Standards ultimately only hoped that lawyers will not impeach witnesses for the fun of it. Perhaps the real problem is with the evidence rule itself. What may make this instance seem so different from the other forms of examination is that we think that the attacks in the first two cases really are relevant to a fair proof of facts.

My suspicion is that we really don't think so for impeachment by prior convictions, at least compared to the harm done to the witness. If so, the best solution, here as in other places, is to change the rules of the game.