By Tommaso Morrione*

Rule 609 of the Federal Rules of Evidence governs the impeachment of witnesses with their past criminal convictions. Under Rule 609(a)(2), a court must admit a conviction for impeachment purposes if establishing the elements of the crime “required proving — or the witness’s admitting — a dishonest act or false statement.” Historically, some courts admitted misdemeanor theft convictions under Rule 609(a)(2); however, in 2006 the rule was amended to only admit convictions with a statutory element of deceit. While this amendment should exclude theft-based crimes from Rule 609(a)(2)’s automatic admission, the text of the amended rule still does not explicitly preclude their admission. This Contribution analyzes the arguments for and against the admission of theft-based crimes under Rule 609(a)(2), and ultimately concludes that these crimes should not be automatically admissible under the rule. While the text of Rule 609(a)(2) may be ambiguous, legislative history and policy rationales underscore that theft-based crimes are not sufficiently probative of testimonial dishonesty to be automatically admissible under the rule. Finally, this Contribution puts forward possible solutions that may provide clarity and finality regarding Rule 609(a)(2) and the admission of theft-based crimes.

Is theft dishonest? While the response to this question may seem obvious at first thought, the answer has important implications under the Federal Rules of Evidence.

Rule 609 of the Federal Rules of Evidence governs the impeachment of witnesses with their prior criminal convictions.1 The rule identifies three categories into which convictions may fall for impeachment purposes. First, under Rule 609(a)(1), prior felonies must be admitted for impeachment purposes in a civil or criminal case in which the witness is not the defendant,2 subject to balancing under Rule 403.3 If the witness is instead a criminal defendant, the court must only admit felony convictions “if the probative value of the evidence outweighs its prejudicial effect to that defendant,” which offers greater protection for the witness-defendant.4 Second, under Rule 609(a)(2), the focus of this Contribution, the court must admit any prior conviction, including misdemeanors, if the court can “readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.”5 Lastly, Rule 609(b) limits the admissibility of older convictions, as these convictions are subject to a more protective balancing test and require notifying the witness.6

Given this framework, a court can only admit misdemeanor theft convictions for impeachment purposes if they fall within the scope of Rule 609(a)(2). Consequently, this begs the question “is theft dishonest?”.7

To answer this question, this Contribution will first examine how the pre-2006 version of Rule 609(a)(2) opened the door to the admission of theft-based crimes. This Contribution will then highlight the main arguments that remain for the admission of theft-based crimes under the rule. However, this Contribution will conclude the admission of theft-based crimes runs counter to Rule 609(a)(2)’s legislative history and policy underpinnings, which support a narrow reading of the rule that only admits crimes that are particularly probative of a witness lying on the stand.8 While a theft conviction evidences lack of respect for the property of others, it is not particularly probative of a witness’s propensity to perjure themselves on the stand.9   

Prior to 2006, there was a “long-standing dispute among the circuits over the proper methodology for determining when a crime is automatically admitted under Rule 609(a)(2).”10 In 2006, the rule was substantially amended to provide that convictions are admissible only if the conviction or the guilty plea of the prior crime required proof of an act of dishonesty or a false statement.11 Yet this “amendment did not clearly address whether theft-based convictions are automatically admissible.”12 Most circuit court cases which found that theft offenses are automatically admissible under Rule 609(a)(2) “generally predate the 2006 amendment.”13 Still, these cases have not been abrogated.14

As Justice Kagan remarked in 2015, “we’re all textualists now.”15 Therefore, any analysis should begin with the text of the rule. Section 609(a)(2) simply states that “for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.”16

Rule 609(a)(2) does not explicitly define what crimes fall under its purview, only providing that the elements of the crime must include a dishonest act or a false statement. It is clear, however, that the court may not look beyond the statutory elements of the crime itself to determine if a crime was committed in a deceitful or dishonest manner.17 For example, a court may never admit a murder conviction under Rule 609(a)(2), even if the murderer acted deceitfully when committing the crime.18

However, if theft itself (i.e., the appropriation of another’s property without their consent) is dishonest, theft convictions could fall within the scope of the rule. Following this logic, some courts have held, without in-depth factual analysis or further explanation, that theft is a crime of deceit.19

There exists a long historical tradition that equates theft with dishonesty, meaning a textual reading of dishonest acts could include crimes like petit larceny. For example, the Old Testament in Leviticus directly equates theft, fraud, and lying.20 Moreover, various dictionaries directly state that theft (or its synonym larceny) is dishonest.21 While most state statutes do not directly refer to larceny as dishonest or fraudulent,22 American common law has equated theft and dishonesty. Most famously, Warren Burger, the future Chief Justice of the United States Supreme Court, wrote that “[i]n common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man’s honesty and integrity.”23 Conversely, crimes of violence that “may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity.”24 Indeed, some courts embrace this reasoning from Gordon v. United States has been embraced by American courts, to date cited over 100 times by other decisions.25

Yet, the vast majority of courts correctly take a narrower view and exclude petit larceny convictions under Rule 609(a)(2).26 These courts understand that the drafters of the rule intended “a more nuanced, less inclusive approach [to the rule] and find that theft-based convictions are not automatically admissible under Rule 609(a)(2).”27

These courts emphasize that the terms “a dishonest act or a false statement” are inherently ambiguous. For example, the Ninth Circuit in United States v. Brackeen emphasizes that “[u]nfortunately, ‘dishonesty’ has more than one meaning.”28 The court highlighted that in the broad sense, “dishonest” is defined as a lack of integrity that may apply to any breach of honesty or trust, such as lying, deceiving, cheating, stealing, or defrauding.29 This definition would appear to include crimes like petit larceny. But, in the narrow sense, dishonesty is defined as a disposition to defraud, lie, or cheat.30 This definition would not include crimes like petit larceny because its statutory elements do not include fraud or deception.31

This ambiguity allows courts to look beyond the text and focus on Rule 609(a)(2)’s legislative history and policy underpinnings, both of which demonstrate an intent to cabin the rule to a narrow subset of crimes that excludes simple theft.32

The committee note to Rule 609(a)(2) explains that by “dishonesty and false statement,” Congress meant “crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the [witness’s] propensity to testify truthfully.”33 As stated by the Sixth Circuit in United States v. Washington, the crimes listed in the advisory committee note underscore that “[a] crime of dishonesty or false statement involves some element of active misrepresentation.”34 The requirement for “dishonesty or [a] false statement” excludes “those crimes which, bad though they are, do not carry with them a tinge of falsification.”35 For example, fraud statutes require proving a material misrepresentation as an element of the crime.36 Proving this element is what allows a fraud conviction to fall under Rule 609(a)(2), because the rule requires “establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement,” such as a material misrepresentation.37 While certain crimes may reflect poorly on the perpetrator’s moral character, Congress intended Rule 609(a)(2) to only apply to a narrower subset of crimes that should “inform fact-finders that the witness has a propensity to lie, and, as morally repugnant as some crimes may be, crimes of violence or stealth have little bearing on a witness’s character for truthfulness.”38

Additionally, Rule 609(a)(2) should be read narrowly to exclude crimes like petit larceny for three policy reasons: First, including crimes that fall within the broad definition of “dishonesty” or that involves some element of deceit would swallow the rule and allow for the admission of nearly any crime. Second, the rule’s unique lack of balancing protections means a court has no discretion to weigh the probative value and prejudicial nature of the conviction. Lastly, a broad reading of the rule will make defendants less likely to testify, diminishing the right of defendants to testify in their own defense and hurting the adversarial process that our judicial system relies on.

A broad view of Rule 609(a)(2) that would admit all crimes involving some deceitful behavior, rather than just those involving dishonest acts or false statements, would allow for impeachment with almost any past criminal conviction, since most crimes involve at least some element of deceit. As Professor Daniel Capra—the reporter to the Judicial Conference Advisory Committee on Evidence Rules—notes, including these crimes under Rule 609(a)(2) would destroy the rule and open the door to impeachment for essentially any crime:

But most crimes involve at least some deceitful behavior . . . . almost every theft-based crime involves deceit—stealing property or lying about intent to return it. Even shoplifters usually take items when they think no one is looking and often hide items in their clothing, both of which can be described as deceitful acts . . . . If these expansive views of what constitutes crimen falsi were accepted, then pretty much every criminal conviction would be automatically admissible under Rule 609(a)(2). That was not the intent of the rule or else the drafters would have written this rule: “a witness’s criminal convictions must be admitted.”39

For instance, simple theft may be characterized as a crime of “stealth” because the perpetrator seeks to avoid detection, but the crime does not require the prosecution to prove a material misrepresentation.40 This stealth is not the same as the dishonesty required by Rule 609(a)(2).41 Drug trafficking is another example of a crime that may include elements of stealth but does not require proving a dishonest act or a false statement.42 Drug trafficking may be a sign of a furtive lifestyle, but should not fall within the scope of the rule.43 At bottom, Rule 609(a)(2) should not be taken to the extreme conclusion of including crimes of stealth, as such a broad reading of could result in the admission of almost all previous convictions, since many crimes involve at least some impulse to avoid detection.

Another reason to interpret Rule 609(a)(2) narrowly rests on the lack of discretion the rule affords to the court in admitting a previous conviction for impeachment purposes. As previously stated, under Rules 609(a)(1) and 609(b), the court may weigh how probative the conviction is to the witness’s credibility against the conviction’s prejudicial nature.44 Rule 609(a)(2) affords the court no such discretion. Instead, the court “must” admit the conviction if the court “can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.”45 Critically, Rule 609(a)(2) is the only rule in the entirety of the Federal Rules of Evidence that limits judicial discretion over the admissibility of unfairly prejudicial evidence.46 Congress removed discretion from courts applying Rule 609(a)(2) because the rule was only intended to include crimes that are “peculiarly probative of credibility” and directly bear on the witness’s propensity to testify truthfully, such as perjury or fraud.47 Given this lack of discretion, it is “inevitable that Congress would define narrowly the words ‘dishonesty or false statement,’ which, taken at their broadest, involve activities that are part of nearly all crimes.”48 Misdemeanor theft crimes are not particularly probative of testimonial dishonesty, with the court in United States v. Ortega explaining that “[h]uman experience does not justify an inference that a person will perjure himself from proof that he was guilty of petty shoplifting” because “absence of respect for the property of others is an undesirable character trait, but it is not an indicium of a propensity toward testimonial dishonesty.”49

Lastly, interpreting Rule 609(a)(2) broadly risks chilling defendants from taking the stand due to concerns that jurors will use the admission of a crime for credibility purposes to infer criminal propensity.50 Even though a conviction admitted under Rule 609(a)(2) would almost certainly be admitted with a limiting instruction stating that it is only for impeachment purposes, “the utility of a limiting instruction in the context of other crimes evidence has been widely questioned.”51 For example, “[o]ne study suggests that when a defendant’s criminal record is known and the prosecution’s case has contradictions, the defendant’s chances of acquittal are 38% compared with 68% otherwise.”52 Similarly, a study that relied on juror interviews concluded “that jurors were almost universally unable or unwilling to understand or follow the court’s instruction to consider prior convictions only for impeachment purposes, and almost invariably used a defendant’s record to conclude that he was a bad man and hence more probably guilty . . . .”53

As one possible solution to remedy this aforementioned prejudice, Professor Capra suggests the Advisory Committee on Evidence Rules should explicitly amend Rule 609(a)(2) by adding a sentence stating that “[a] crime containing an element of theft may not be treated as requiring proof or admission of a dishonest act or false statement under this rule.”54 Alternatively, Capra notes the Committee could add a sentence that states “[c]rimes that involve stealth, such as theft crimes, may not be treated as requiring proof or admission of dishonest acts or false statements under this rule.”55 This would also limit the admission of other “stealthy” crimes, such as drug trafficking, though a broader amendment would make this restriction more certain. These changes would end the debate over the admissibility of theft-based crimes under Rule 609(a)(2), leading to a clearer rule that better manifests the intent of Congress and protects witnesses from improper propensity inferences.

* Tommaso Morrione is a J.D. Candidate (2025) at New York University School of Law. This contribution is a commentary on the problem at the 39th Annual (2024) Dean Jerome Prince Memorial Evidence Moot Court Competition, hosted by Brooklyn Law School. One of the questions presented asked whether a petit larceny conviction is admissible for impeachment purposes under Rule 609(a)(2) of the Federal Rules of Evidence. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. See Fed. R. Evid. 609.

2. See Fed. R. Evid. 609(a)(1)(A).

3. See Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”).

4. See Fed. R. Evid. 609(a)(1)(B).

5. See Fed. R. Evid. 609(a)(2) (“[F]or any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.”).

6. See Fed. R. Evid. 609(b) (“This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.”).

7. Throughout this Contribution, I will use the terms “theft,” “petit larceny,” “petit theft,” and “misdemeanor theft” interchangeably to refer to misdemeanor (i.e., non-felony) theft convictions.

8. See Fed. R. Evid. 609(a)(2) advisory committee’s note to 2006 amendment.

9. See United States v. Washington, 702 F.3d 886, 893 (6th Cir. 2012) (“[609(a)(2)] is intended to inform fact-finders that the witness has a propensity to lie, and, as morally repugnant as some crimes may be, crimes of violence or stealth have little bearing on a witness’s character for truthfulness.”).

10. Daniel J. Capra & Jessica Berch, It’s A Code: Amending the Federal Rules of Evidence to Achieve Uniform Results, 58 Wake Forest L. Rev. 549, 557–58 (2023) (quoting Advisory Comm. on Evidence Rules, Agenda of the Committee Meeting, November 14, 2005 8 (2005)).

11. See Fed. R. Evid. 609(a)(2) (“[F]or any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.”). The pre-2006 version of the rule stated that “evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.”

12. Capra & Berch, supra note 10, at 558.

13. Id.

14. See id.

15. Harvard Law School, The 2015 Scalia Lecture: A Dialogue with Justice Elena Kagan on the Reading of Statutes, YouTube, at 08:29 (Nov. 25, 2015), https://youtu.be/dpEtszFT0Tg [https:// perma.cc/L65V-9AET]. However, Justice Kagan reversed herself in 2022, stating “Some years ago, I remarked that ‘[w]e’re all textualists now.’ It seems I was wrong.” West Virginia v. EPA, 142 S. Ct. 2587, 2641 (2022) (Kagan, J., dissenting) (quoting Kagan, 2015 Scalia Lecture Series).

16. Fed. R. Evid. 609(a)(2).

17. In contrast, the phrasing of the pre-2006 amendment Rule 609(a)(2) did allow courts to consider the facts underlying the previous conviction to determine if it was committed with deceit, even if the statutory elements of the crime did not require proving a dishonest act or a false statement. The pre-2006 rule stated that “[f]or the purpose of attacking the credibility of a witness . . . . evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.” See Fed. R. Evid. 609(a)(2) (1990 Amendment) (emphasis added).

18. See Fed. R. Evid. 609(a)(2) advisory committee’s note to 2006 amendment (“Thus, evidence that a witness was convicted for a crime of violence, such as murder, is not admissible under Rule 609(a)(2), even if the witness acted deceitfully in the course of committing the crime.”).

19. See, e.g., United States v. Gunter, 551 F.3d 472, 483 (6th Cir. 2009); United States v. Mixon, 185 F.3d 875 (Table) (10th Cir. 1999) (unpublished opinion).

20. See Leviticus 19:11–13 (King James) (“Ye shall not steal, neither deal falsely, neither lie one to another . . . . Thou shalt not defraud thy neighbour, neither rob him: the wages of him that is hired shall not abide with thee all night until the morning.”).

21. See Theft, Oxford Reference, https://www.oxfordreference.com/display/10.1093/oi/authority.20110803103634781 (last visited Sept. 15, 2024) (“The dishonest appropriation of property belonging to another with the intention of permanently depriving the other of it (see dishonesty).”); see also Larceny, Black’s Law Dictionary, https://thelawdictionary.org/larceny/ (last visited Sept. 15. 2024) (“The wrongful and fraudulent taking and carrying away by one person of the mere personal goods of another from any place, with a felonious intent to convert them to his (the taker’s) use, and make them his property, without the consent of the owner.”). Additionally, the UK Theft Act, which governs most property crimes in the United Kingdom, incorporates these concepts into its definition of theft, which states that “[a] person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it . . . .” Theft Act 1968, c. 60 (UK) § 1(1) (emphasis added).

22. See, e.g., N.Y. Penal Law § 155.05 (Consol. 2024); Del. Code Ann. tit. 11, § 841.

23. Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967).

24. Id. For example, the Seventh Circuit in Altobello v. Borden Confectionary Prod., Inc. states that “[a] man who kills his wife’s lover in flagrante delicto is violent and lawless, but not necessarily dishonest as that word is normally understood, and there may be less reason to expect him to lie on the stand in a suit unrelated to his crime than to expect a lesser criminal, but one who has a history of seeking to enrich himself at others’ expense, to lie on the stand.”

 872 F.2d 215, 216 (7th Cir. 1989).

25. See, e.g., Sharif v. Picone, 740 F.3d 263, 273 n.10 (3d Cir. 2014); United States v. Wilson, No. 15-CR-94, 2016 WL 2996900, at *4 (D.N.J. May 23, 2016); United States v. Elias, No. 18-CR-33 (S-2) (NGG), 2022 WL 715486, at *5 (E.D.N.Y. Mar. 10, 2022).

26. The following circuits find theft based convictions are not automatically admissible under Rule 609(a)(2): United States v. Grandmont, 680 F.2d 867, 871 (1st Cir. 1982); United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977); Government of Virgin Islands v. Testamark, 528 F.2d 742, 743 (3d Cir. 1976); United States v. Ashley, 569 F.2d 975, 979 (5th Cir. 1978); McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990); United States v. Amaechi, 991 F.2d 374, 378 (7th Cir. 1993); United States v. Yeo, 739 F.2d 385, 387 (8th Cir. 1984); United States v. Ortega, 561 F.2d 803, 806 (9th Cir. 1977); United States v. Sellers, 906 F.2d 597, 603 (11th Cir. 1990); United States v. Fearwell, 595 F.2d 771, 776 (D.C. Cir. 1978).

27. Capra & Berch, supra note 10, at 556.

28. United States v. Brackeen, 969 F.2d 827, 829 (9th Cir. 1992).

29. See id. (“In its broader meaning, dishonesty is defined as a breach of trust, a lack of . . . probity or integrity in principle, lack of fairness, or a disposition to . . . betray . . . . Dishonest[y] may apply to any breach of honesty or trust, as lying, deceiving, cheating, stealing, or defrauding.” (internal citation omitted)).

30. See id.

31. See, e.g., N.Y. Penal Law § 155.05 (Consol. 2024) (“A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.”); Del. Code Ann. tit. 11, § 841 (“A person is guilty of theft when the person takes, exercises control over or obtains property of another person intending to deprive that person of it or appropriate it.”).

32. See Capra & Berch, supra note 10, at 556 (explaining that a literal reading of the rule’s language may permit admission of theft-based crimes while a “common sense approach” that focuses on legislative history would not).

33. Fed. R. Evid. 609(a)(2) advisory committee’s note to 2006 amendment.

34. Washington, 702 F.3d at 893. The committee note also includes embezzlement in the list of crimes falling within the scope of the rule. Embezzlement involves dishonesty by omission, where an agent uses the property of their principal for personal benefit without disclosing this usage. This breach of duty amounts to active fraud on the principal. See United States v. Blaszczak, 947 F.3d 19, 35 (2d Cir. 2019) (“The undisclosed misappropriation of confidential information, in breach of a fiduciary or similar duty of trust and confidence, ‘constitutes fraud akin to embezzlement.’” (quoting United States v. O’Hagan, 521 U.S. 642, 654 (1997))).

35. Washington, 702 F.3d at 893 (citing Ortega, 561 F.2d at 806).

36. See, e.g., 18 U.S.C. § 1341 (federal wire fraud statute) (“Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises . . . . shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.” (emphasis added)).

37. Fed. R. Evid. 609(a)(2).

38. Washington, 702 F.3d at 893.

39. Capra & Berch, supra note 10, at 554–55; see also Hayes, 553 F.2d at 827 (“[I]t was inevitable that Congress would define narrowly the words ‘dishonesty or false statement,’ which, taken at their broadest, involve activities that are part of nearly all crimes.”).

40. See, e.g., N.Y. Penal Law § 155.05 (Consol. 2024); Del. Code Ann. tit. 11, § 841.

41. See Fearwell, 595 F.2d at 776 (“At worst, this type of shoplifting . . . like many petty larceny crimes, involves stealth, which . . . is not the same as deceit.” (quoting United States v. Dorsey, 591 F.2d 922, 935 (D.C. Cir. 1978))); see also Washington, 702 F.3d at 893 (“[609(a)(2)] is intended to inform fact-finders that the witness has a propensity to lie, and, as morally repugnant as some crimes may be, crimes of violence or stealth have little bearing on a witness’s character for truthfulness.”).

42. See Capra & Berch, supra note 10, at 559.

43. However, drug crimes and more serious theft crimes may be admissible as felonies under Rule 609(a)(1), subject to the applicable balancing tests.

44. Fed. R. Evid. 609.

45. Id.

46. See Capra & Berch, supra note 10, at 557 n.44 (“But only Rule 609(a)(2) specifically overrides a trial judge’s discretion to exclude unfairly prejudicial evidence.”).

47. See Fed. R. Evid. 609(a)(2) advisory committee’s note to 2006 amendment; see also Hayes, 553 F.2d at 827.

48. Hayes, 553 F.2d at 827; see also Capra & Berch, supra note 10, at 557 n.40 (“[I]t seems unlikely Congress intended such a broad construction in light of the fact subdivision (a)(2) leaves the court no discretion to weigh probative value against prejudice.” (citation omitted)).

49. Ortega, 561 F.2d at 806.

50. See Drew v. United States, 331 F.2d 85, 89–90 (D.C. Cir. 1964) (“It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged. Since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.”); see also Gordon, 383 F.2d at 940 (“Of course, there are many other factors that may be relevant in deciding whether or not to exclude prior convictions in a particular case . . . . One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions.”).

51. Thompson v. United States, 546 A.2d 414, 424 (D.C. 1988).

52. Id. at 425 (citing Harry Kalvin & Hans Zeisel, The American Jury 160 (1966)).

53. Id. (citing Stephen Saltzburg & Richard Lembert, A Modern Approach to Evidence: Text, Problems, Transcripts, and Cases 220 n.54 (West 1982)).

54. Capra & Berch, supra note 10, at 558.

55. Id. at 559.