The criminal and civil obstacles Mr. Dukes faced after his shooting represent a particularly troublesome scenario that many ex-felons experience in police brutality cases. Police brutality victims must confront two very challenging situations: (1) how to successfully overcome the government’s criminal allegation that the suspect/victim aggressed the police, and (2) simultaneously preserve the ability to bring a civil rights violation as a plaintiff/victim against the police for the true brutality suffered.
The victim’s ex-felon status significantly increases the stakes regarding any potential punishment on the criminal side and greatly diminishes the likelihood of success or damage recovery on the civil side. Prior felony convictions are regularly admitted under the authority of the Federal Rules of Evidence, specifically Rule 609, based on the rationale that such information is relevant to the credibility of a testifying witness.’ In criminal cases, a defendant/victim cannot be forced to testify, thus the government’s allegation must be proven beyond a reasonable doubt without reference to the defendant’s criminal record’ or mention of his or her decision not to testify.
The Fifth Amendment provides this protection.’ However, in a civil case, the Fifth Amendment protection does not apply and thus, a civil rights plaintiff/victim must testify and consequently ex-felon status is routinely revealed as a fact relevant to the credibility of his or her testimony.1o In this context, ex-felon victims of police brutality must seriously evaluate the real impact that the revelation of past felony convictions may have on the success of any civil rights litigation against the police. Notwithstanding the general veracity rationale underlying Rule 609,” this essay suggests that in the limited context of excessive force cases, jurors should be shielded from knowing the ex-felon status of the plaintiff/victim.
The rationale for this proposed exception is two-fold: (1) the unfair prejudice suffered by the plaintiff/victim, and (2) the strong public policy need to deter police and therein ensure that a civil rights trial creates a legitimate threat of remedial award to the plaintiff for the wrongdoing by the police officer. As Rule 609 currently operates in excessive force cases, the prejudicial impact on the ex-felonplaintiff/victim is too great and voids the intended purpose of the federal civil rights statutes by essentially distracting the jurors away from the material factsl2 of the police-citizen encounter into the minutiae of the plaintiffs prior and unrelated criminal convictions. The negative impact is further exploited when the plaintiffs prior conviction is for a violent felony. Due to the legal dynamics outlined throughout this essay, police officers know ex-felons cannot effectively complain about brutality, and correspondingly, ex-felons are rendered powerless and even more vulnerable to excessive force.
As you get to know Mr. Dukes’ experience on the street with the police and in the courtroom seeking redress, you too may begin to question the efficacy of the process and whether it is appropriate for the jury to learn about Mr. Dukes’ prior convictions, especially his prior murder conviction, since the police did not know about his record when they decided to shoot him.” Federal law provides a statutory civil remedy under § 1983″ for incidents of police brutality like the one Mr. Dukes suffered. However, Mr. Dukes’ story begs the question of whether the articulated remedy is effective or illusory when applied to ex-felons.”