Tell Me Lies: Court Of Appeals Of Michigan Finds Misdemeanor False Pretenses Conviction Was Properly Admitted For Impeachment Purposes

Michigan Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and

(1) the crime contained an element of dishonesty or false statement, or

 

(2) the crime contained an element of theft, and

(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and

 

(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.

This Rule is thus actually quite different from Federal Rule of Evidence 609(a), which provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) 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.

As the recent opinion of the Court of Appeals of Michigan in People v. Rondo, 2010 WL 3565245 (Mich.App. 2010), makes clear, however, they are the same in at least one regard: They allow for witnesses to be impeached via misdemeanor convictions resulting from crimes of dishonesty or false statement.

In Rondo, Russell Rondo was convicted of assaulting, resisting, or obstructing a police office. He thereafter brought a claim for ineffective assistance of counsel, asserting, inter alia, that his trial counsel was ineffective because he failed to object when the prosecution impeached him through evidence of his prior conviction for false pretenses under $200. Rondo claimed that because this was a misdemeanor conviction, i.e., it was for a crime not punishable by imprisonment in excess of one year, it was inadmissible under .Michigan Rule of Evidence 609(a).

The court correctly rejected this argument, finding that the Rule covers (1) felony theft convictions and (2) felony or misdemeanor convictions for crimes of dishonesty or false statement. The result would have been the same under  Federal Rule of Evidence 609(a), which covers (1) all felony convictions and (2) felony or misdemeanor convictions for crimes of dishonesty or false statement.

-CM