The “big” legal problems in the United States seem too numerous to count. I’ll list a few, if only because that’s what law professors do. With the acquiescence of the Supreme Court and Congress, we have witnessed an unprecedented concentration of power in the executive, military deployments in our cities based not on public safety but political animus, and the dismantling of the federal civil service apparatus in a manner that endangers public health and national security.

The scale of these problems is staggering. When overwhelmed by a situation, I often look to smaller matters I can wrap my head around. While some of the smaller matters in the legal world mirror the despair of the larger picture, many do not.

Take the operation of criminal cases on the ground. On the one hand, yes, things are grim. The federal public defense bar is embroiled in a funding crisis, and the political pressures facing appointed U.S. attorneys are presumably filtering down to line prosecutors, many of whom are dedicated advocates whose tenures have spanned multiple administrations. On the other hand, federal grand juries have refused to issue indictments in some politically charged prosecutions (Exhibit A: Letitia James) and judges have pushed back on the executive’s efforts to bypass standard procedures to install partisan chief prosecutors. On a granular level, the system seems to be holding. For now.

I’m finding additional cause for optimism in a rather obscure area, one that may appear insignificant in the larger context: a “substantial” change to the Federal Rules of Evidence that would make it more difficult for prosecutors to impeach criminal defendants with their past convictions. Before you sign off—evidence, snooze!—let me explain.

As we all know, one feature of our adversary system is that the government bears the burden of proving a defendant’s guilt beyond a reasonable doubt. The defense may mount no case and still earn an acquittal if the prosecution fails to carry its burden. One aspect of this arrangement, of course, is the Fifth Amendment privilege against self-incrimination. A defendant may decide on her own whether she wants to testify and face the hazards of cross-examination. A major reason defendants “plead the Fifth” is the risk of impeachment, that is, the practice of attacking a witness’s credibility on the stand. One particularly potent impeachment method involves introducing a witness’s criminal record to suggest that it reflects negatively on her capacity to tell the truth: that a convicted “criminal” should not be trusted.

The prospect of impeaching a witness with past convictions has an outsized impact on whether a defendant testifies. One prominent study found that 60% of defendants without criminal records chose to testify while less than half (45%) with records took the stand (Eisenberg & Hans, 2009). This matters. Because of the ubiquity of plea bargaining, there’s reason to think many cases that go to trial have a potentially compelling defense. (Otherwise, why would the defendant turn down a favorable deal?). And in those close cases, jurors want to hear the defendant’s account, even if they are instructed to not hold the defendant’s silence against the accused. At bottom, a criminal defendant’s criminal record affects whether they tell their story in open court and affirmatively proclaim their innocence in the case at hand. This galls me.

Prior to becoming an academic, I spent several years running a small innocence project in New York. In many of the cases my students and I investigated, the defendant refused to testify for fear of being impeached. In one case, my client had a very peculiar and memorable alibi for a robbery—he was home watching an episode of the sitcom Dharma and Greg with his roommate. (Those of you of a particular vintage may recall that no one would lie about watching such a mediocre show). But my client had a criminal record, chose to remain silent, and watched the jury convict him of a crime that, as we tried to demonstrate years later, a local serial robber who looked remarkably like the defendant actually committed.

The federal evidence rule governing this issue offers protection, albeit meager, to criminal defendants. The prosecution may impeach a defendant with a crime punishable by more than a year in prison if it convinces a judge that the “probative value outweighs its prejudicial effect.” This is not a high bar. Courts traditionally treat all serious crimes as “probative” of dishonesty based on the dubious logic that if someone violates the law, they’ve “lied” to society. At common law, felons were even deemed fully incompetent to testify in court.

The federal Judicial Conference Advisory Committee on the Rules of Evidence has recently advised amending the rule to add the word “substantially” before “outweighs,” which is a not-so-subtle indication to the judiciary that it wishes to make it more difficult for prosecutors to impeach criminal defendants with their past convictions. If this amendment passes, there may be implications for state law given that approximately 35 states emulate the federal rules either fully or largely. The proposed rule change is open for public comment until mid-February 2026.

May this serve as my public comment, so to speak, both on the rule and the current state of affairs in our nation. When the big picture of justice looks bleak, I try to take comfort by focusing on smaller signs of brightness.

February 2026