No Lie: Western District of Kentucky Finds Tampering With Evidence Not a Crime of Dishonesty/False Statement

Federal Rule of Evidence 609(a)(2) reads as follows:

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:....  

(2) 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.

So, does a conviction for tampering with evidence qualify as a crime of dishonesty/false statement under Rule 609(a)(2)? Let's take a look at the recent opinion of the United States District Court for the Western District of Kentucky in United States v. Parker, 2014 WL 2993828 (W.D.Kent. 2014).

In Parker, Norman Parker was charged with possession of a handgun by a convicted felon. Prior to trial, the prosecution indicated that it sought to admit Parker's three prior convictions for tampering with evidence under Ky. Rev. Stat. Section 524.100, which states that

Kentucky law provides that a person is guilty of tampering with physical evidence: when, believing that an official proceeding is pending or may be instituted, he:

(a) Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; or

(b) Fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered.

According to the court, however,

As defined by Kentucky law, tampering with physical evidence does not necessitate “proving—or the witness's admitting—a dishonest act or false statement.” See Fed.R.Evid. 609(a)(2).1 Although some tampering offenses may indeed involve deceit or false statement, some may not. For example, the statute embraces the act of hiding contraband when approached by a police officer....Reprehensible as such crimes may be, they do not necessarily include a suggestion of falsification.

Parker's tampering conviction does not justify the inference that he has a propensity to lie and will perjure himself. Therefore, the Court declines to permit impeachment questioning on the basis of Parker's prior conviction of tampering, as this crime does not involve a dishonest act for purposes of Federal Rule of Evidence 609(a)(2).

-CM