Friday, August 15, 2008
Five Finger Discount: Seventh Circuit Notes That Retail Theft Is Generally Not Covered Under Fed. R. Evid. 609(a)(2), Despite Illinois Precedent
The Seventh Circuit's recent opinion in Kunz v. DeFelice, 2008 WL 3483442 (7th Cir. 2008), reveals that the court does not generally consider retail theft to be a crime involving falsehood under Federal Rule of Evidence 609(a)(2) but that Illinois state courts have reached the opposite conclusion. Here is a very brief recounting of the facts in Kunz:
In March 1999, Jeremy Kunz spent the afternoon and evening in a bar watching March Madness and consuming a few Guinnesses. As the night wore on, he asked a fellow he knew from the bar, Erik, if he could borrow Erik's SUV for an errand, and Erik lent him the SUV. As Kunz left in the SUV, he grazed a parked car, prompting a 911 call from a bystander. Officer Richard DeFelice and his partner thereafter responded, but despite the flashing lights on their police car, Kunz kept driving, with the police in pursuit. During the chase, DeFelice discovered, after running the SUV's plates, that it had been reported stolen.
Eventually, Kunz stopped the SUV, got out and tried to flee on foot. He ran, though, not because he knew that the SUV was stolen (he lacked this knowledge) but because his errand turned out to be delivering drugs. The chase on foot finally ended with Kunz scaling a chain-link fence and being cornered. As he was being handcuffed, multiple police officers kicked Kunz, eventually causing a sharp pain later diagnosed as a broken rib. The police then dragged the injured and restrained Kunz to their squad car and took him back to the station, where they placed him in a room on a stool, still cuffed and facing DeFelice. DeFelice repeatedly punched Kunz in the face hard enough to make him pass out several times before he finally falsely confessed that he knew that the SUV he was driving was stolen.
Kunz thereafter brought a Section 1983 action against the City of Chicago, DeFelice, and others, alleging, inter alia, excessive force. The trial court entered a mixed verdict that gave Kunz some, but not all, of the amount he sought to recover from the defendants. This mixed verdict led to cross-appeals from both sides, with DeFelice claiming, inter alia, that the trial court erred by precluding the impeachment of Kunz through evidence of his 2005 conviction for retail theft.
The Seventh Circuit disagreed, finding that the conviction was covered by Federal Rule of Evidence 609(a)(1) as a garden variety felony conviction and was thus excludable under the balancing test set forth in Federal Rule of Evidence 403. As part of this analysis, it rejected DeFelice's argument that the conviction was covered by Federal Rule of Evidence 609(a)(2), which states that:
"evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment [and without regard for Federal Rule of Evidence 403], if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
The Seventh Circuit noted that under Illinois law, retail theft is generally considered a crime of dishonesty/false statement for felony impeachment purposes. It found, however, that the case before it was being decided under the Federal Rules of Evidence and not Illinois law. It then noted that under its prior precedent, which is consistent with precedent from across the country on Federal Rule of Evidence 609(a)(2), retail theft is generally not considered a crime of dishonesty/false statement for felony impeachment purposes.
"[b]y the phrase 'dishonesty and false statement,' the Conference means crimes such as perjury, subordination of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully."
In other words, it is the rare crime that generally qualifies as a crime of dishonesty/false statement. Most crimes, like retail theft, are generally not covered by Federal Rule of Evidence 609(a)(2).