Saturday, May 26, 2012
It's In My Report: 9th Circuit Finds Police Report Insufficient To Prove Conviction Fell Under Rule 609(a)(2)
Federal Rule of Evidence 609(a)(2) provides that
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:...
for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
Obviously, for certain crimes involving crimen falsi such as perjury, embezzlement, false pretenses, and larceny by trick, it is clear that the porsecution has to prove a dishonest act or false statement to secure a conviction, making such a conviction per se admissible to impeach under Rule 609(a)(2). But let's say that you have a crime such as larceny or robbery that can be accomplished through violent or deceptive means. If a party wants to use such a conviction to impeach a witness under Rule 609(a)(2), how does it go about establishing that the prosecution had to prove a dishonest act or false statement to secure the conviction. According to the opinion of the Ninth Circuit in United States v. David, 639 Fed.Appx. 639 (9th Cir. 2009), using a police report is not a proper method.
Prior to 2006, Federal Rule of Evidence 609(a)(2) deemed convictions that were not more than 10 years old per se inadmissible to impeach as long as the underlying crime “involved dishonesty or false statement.” For instance, assume that a defendant called the victim and asked for his help in fixing a television that was not broken as a ruse so that the defendant could kill the victim when he arrived at his house. Because the defendant’s murder of the victim “involved dishonesty or false statement,” it would be per se admissible to impeach him at a subsequent trial held in the 10 years following his release.
The amendment provides that Rule 609(a)(2) mandates the admission of evidence of a conviction only when the conviction required the proof of (or in the case of a guilty plea, the admission of) an act of dishonesty or false statement. Evidence of all other convictions is inadmissible under this subsection, irrespective of whether the witness exhibited dishonesty or made a false statement in the process of the commission of the crime of conviction. Thus, evidence that a witness was convicted for a crime of violence, such as murder, is not admissible under Rule 609(a)(2), even if the witness acted deceitfully in the course of committing the crime.
That by “dishonesty and false statement” it meant “crimes such as perjury, subornation 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 deceit, untruthfulness, or falsification bearing on the [witness's] propensity to testify truthfully.”
In other words, Rule 609(a)(2) now only applies to these crimen falsi crimes and other crimes such as larceny by trick “in which the ultimate criminal act [i]s itself an act of deceit." Conversely, in the murder example from above, because murder is not an act of deceit, the witness’s murder conviction would not be covered by Rule 609(a)(2). This makes sense because the prosecution in that murder case did not have to prove the defendant’s lie to convict him or murder; it merely had to prove that the defendant killed the victim (with the requisite mens rea).
But what if the witness’s conviction is for a crime such as simple larceny, which might or might not involve dishonesty? According to the Advisory Committee,
Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment—as, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expressly—a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted.
For instance, in Sanders v. Ritz-Carlton Hotel Co., LLC, 2008 4155635 (S.D.N.Y. 2008), the defendants sought to impeach the plaintiff through, inter alia, his prior conviction for participation in a RICO enterprise. While RICO crimes can involve deceit or force, the court found that the defendant’s conviction was admissible under Rule 609(a)(2) because the indictment in that case stated that “the enterprise involved a variety of fraudulent schemes, including…submitting fraudulent accident claims to insurance companies.”
This takes us to David. In David, Kelly David was charged with conspiracy to defraud the IRS and aiding and assisting in the filing of false tax returns. At trial, the prosecution impeached him under Rule 609(a)(2) with evidence of his prior conviction for misdemeanor theft, which is a crime when a person "shall feloniously steal, take, carry, lead, or drive away the personal property of another." The prosecution proved that this crime involved a dishonest act or false statement through a police report. The report stated that David had a scheme of making false credits on his American Express credit card. These credit card entries did not correspond to any actual purchase of merchandise from Neiman Marcus Neiman Marcus. Rather, they listed fictitious persons as having returned merchandise to the store, the proceeds from which David would convert to his own use.
After he was convicted, David appealed, claiming that the district court erred by deeming his prior conviction admissible under Rule 609(a)(2). The Ninth Circuit partially agreed, citing the Advisory Committee's Note for the proposition that the facts making a conviction fall under Rule 609(a)(2) "must come from 'information such as an indictment, a statement of admitted facts, or jury instructions.'" That said, the Ninth Circuit found that "David's blanket statement on direct examination that he 'would have never told anyone to falsify a document' opened the door to impeachment with details regarding a prior conviction involving the falsification of receipts to steal money from a former employer."