EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, August 8, 2009

A Question Of Your Honesty: Supreme Court Of New Hampshire Finds That Receiving Stolen Property Is Not A Crime Of Dishonesty/False Statement

Like its federal counterpartNew Hampshire Rule of Evidence 609(a)(2) provides that:

For the purpose of attacking the character for truthfulness of a witness,...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, 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.

A question that has divided courts across the country is whether a conviction for receiving stolen property/theft qualifies for admission as a crime of dishonesty and/or false statement under Federal Rule of Evidence 609(a)(2) and state counterparts. The most recent court to weigh in was the Supreme Court of New Hampshire in its recent opinion in State v. Holmes, 2009 WL 2366291 (N.H. 2009), in which it answered this question in the negative.

In Holmes, Jeremiah Holmes was convicted of one count of being a felon in possession of a firearm, two counts of falsifying physical evidence, and one count of criminal threatening with a deadly weapon. Holmes was convicted after the trial court precluded him from impeaching a witness for the prosecution through evidence of his prior misdemeanor conviction for receiving stolen property, and this evidentiary ruling formed the basis for his appeal.

And Holmes had some precedent in support of his position. The Supreme Court of New Hampshire noted that it had never addressed the admissibility of receiving stolen property under New Hampshire Rule of Evidence 609(a)(2) and that several state courts, such as courts in Washington and Pennsylvania "do hold that theft, analogous to receiving stolen property, is per se dishonest and thus admissible under their state rules of evidence." At the same time, the New Hampshire Supremes noted that "the majority view among federal courts is that theft is not a crime of dishonesty under Federal Rule of Evidence 609(a)(2)."

There is good reason for this. The court noted that:

The crux of the defendant's argument lies in his broad construction of the phrase "dishonesty or false statement." He argues that such acts embrace receiving stolen property because one who commits that crime is "void of integrity; faithless; ... not trustworthy." This is one of many sound characterizations, and we note that some definitions of "dishonesty" specifically contemplate theft, and vice versa. 

In parrying this claim, the court noted that the original House Conference Committee Report on Federal Rule of Evidence 609 construed the phrase "dishonesty or false statement to include 

crimes such as perjury or subordination 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 untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

According to the court, this language means that receiving stolen property is not a crime of dishonesty or false statement because

[a]lthough this list is not exhaustive, it clearly illustrates that Rule 609(a)(2) was intended to include a "narrow subset of criminal activity."...At its broadest, the rule contemplates only crimes involving deceit, untruthfulness, or falsification. Only a limited number of crimes necessarily involve these elements, and receiving stolen property is not among them.



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