Wednesday, June 15, 2011
Quantum Of Stealth: Supreme Court Of Iowa Finds Theft & Burglary W/Intent To Commit Theft Fall Under Rule 5.609(a)(2)
Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
So, assume that a defendant has prior convictions for theft and burglary with intent to commit theft crimes of dishonesty or false statement, meaning that they are per se admissible under Rule 5.609(a)(2)? According to the recent opinion of the Supreme Court of Iowa in State v. Harrington, 2011 WL 2162817 (Iowa 2011), the answer is "yes." I disagree.
In Harrington, Wendell Harrington was convicted of ongoing criminal conduct, first-degree theft, second-degree theft, and three counts of second-degree burglary, all enhanced as a habitual offender. After Harrington testified at trial, the trial court permitted the prosecution to impeach him through evidence of his prior convictions for theft and burglary with intent to commit theft.
After he was convicted, Harrington appealed, claiming, inter alia, that the trial court erred in admitting these convictions without balancing their probative value against their prejudicial effect under Iowa Rule of Evidence 5.609(a)(1), which states that
Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to 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.
It was undisputed that the trial court did not conduct this balancing, meaning that its impeachment decision was erroneous unless Harrington's prior crimes were crimes involving dishonesty or false statement under Iowa Rule of Evidence 5.609(a)(2), making them per se admissible. And, according to the Supreme Court of Iowa, they were as it concluded that
Our common law cases have repeatedly held theft and burglary with the intent to commit theft are crimes of dishonesty....We originally reasoned that theft falls within the plain meaning of the term dishonesty, and we quoted former Chief Justice Burger, then on the United States Court of Appeals for the District of Columbia, in observing "'[i]n common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity.'"...It has been settled law in this state that convictions for theft and burglary with intent to commit theft are crimes of dishonesty. Harrington makes no contention his prior theft and burglary convictions are not crimes of dishonesty or false statement under rule 5.609(a)(2). Thus, we find Harrington's prior convictions fall within the scope of rule 5.609(a)(2).
The way I see it, there is a serious flaw with the Supreme Court of Iowa's original reason. According to Burger, stealing is universally regarded as reflecting adversely on a man's honesty and integrity. Fine. I'm sure that we would all agree on this fact. But saying that stealing reflects adversely on a man's honesty and integrity is different from saying that stealing involves dishonesty or false statement. Or at least that it always involves dishonesty or false statement. A defendant sees a woman leave a purse on a table as she goes to the bathroom and he snatches it. I don't think that this crime of theft involves dishonesty or false statement. A defendant falsely tells a woman that she left her car lights on so that she goes to check her car while he snatches her purse. This crime clearly involves hearsay/false statement.
This was the point implicitly made by the Advisory Committee in connection with the enactment of Federal Rule of Evidence 609(a)(2). According to the Advisory Committee's Note, the Committee meant for the Rule to cover
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.
These are crimes which by their nature require an act of dishonesty or false statement; they are crimes in the nature of crimen falsi. This distinguishes them from crimes of stealth. As the Second Circuit noted in United States v. Estrada, 430 F.3d 606, 614 (2nd Cir. 2005), "[w]hile much successful crime involves some quantum of stealth, all such conduct does not, as a result, constitute crime of dishonesty or false statement for purposes of Rule 609(a)(2)."