Monday, November 6, 2017
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime
(2) involved dishonesty or false statement, regardless of the punishment.
So, does the crime of failure to register as a sex offender qualify as a crime of dishonesty or false statement under Rule 609(a)(2)? That was the question presented to the Court of Appeals of Arkansas in Pledger v. State, 2017 Ark. App. 566 (Ark.App. 2017).
In Pledger, Craig Allen Pledger was charged with commercial burglary, breaking or entering, and theft of property. At the close of the State's case, defense counsel filed a motion in limine, seeking "to prohibit the State from introducing a prior conviction for failing to register as a sex offender."
The State countered that "the conviction was admissible as a crime of “dishonesty or false statement” under Arkansas Rule of Evidence 609(a)(2)." The court sided with the State, so Pledger decided not to testify so that the conviction couldn't be used to impeach him.
After he was convicted, Pledger appealed, claiming that the trial court's ruling was wrong because failure to register as a sex offender is not a crime of dishonesty or false statement. The Court of Appeals of Arkansas, however, found that it didn't need to address this issue because "[o]ur supreme court has held that in order to raise and preserve for review a claim of improper impeachment with a prior conviction, a defendant must testify."
So, did the trial court get it right? I've only found one case on point. Iin State v. Young, 661 S.E.2d 387 (S.C. 2008), the Supreme Court of South Carolina noted that "[t]he trial court did not allow introduction of [a] conviction for failure to register as a sex offender, finding that it was not a crime of dishonesty under Rule 609(a)(2)." Therefore, it didn't need to address the issue.
That said, I think the trial court reached the right result. Rule 609(a)(2) certainly covers crimen falsi crimes, such as fraud, perjury, and false pretenses, which automatically involved dishonesty or false statement. And it might cover property crimes such as larceny and burglary, depending on the facts.
But failure to register as a sex offender? That's a crime of omission rather than a crime of commission. As an analogy, would failure to register a firearm count as a crime of dishonesty or false statement? I don't think so, which is why I think that failure to register as a sex offender is not a crime of dishonesty or false statement under Rule 609(a)(2).