Extending Mercy
Vol. 59
February 2026
Page 1355
While only Federal Rule of Evidence 404(a)(2) is officially called the “mercy rule,” this Article argues that all four Rules of character evidence – Rules 404(a)(2), 404(b), 609(a)(1), and 609(d) -- should be considered a collective “mercy rule.” Each of these Rules gives a special dispensation to criminal defendants based upon the unique fear that jurors will misuse character evidence to conclude that the accused must be guilty of the criminal charges brought against them by the State. The latter two Rules, dealing with impeachment of witnesses, also give dispensations to defendants based on the fear that they could be deterred from taking the witness stand because testifying would allow for the introduction of their criminal record.
Moreover, Rules 609(b), 609(a)(2), 608(b), and 608(a) all cover impeachment evidence, whose admission can deter defendants from testifying, making them similar to Rules 609(a)(1) and 609(d) and providing further support for preferential treatment.
Accordingly, this Article advances the thesis that we should extend mercy to criminal defendants by extending the “mercy rule” to these latter four Rules, creating special dispensations for criminal defendants to reduce the risk that they will be wrongfully convicted and deterred from testifying. This Article then explores the different ways in which special dispensations to defendants can be added to each of these Rules.