From the Listserve Edited by Louise A. Lock
Louise A. Lock (Louise A. Lock, P.A.) received her J.D. from the University of Baltimore School of Law and an L.L.M. in Health Law from the Widener University School of Law. She serves on the MTLA’s Board of Governors and is a member of the President’s Club as a Founder. Ms. Lock is also Editor-in-Chief of the Trial Reporter. Her practice concentrates in the areas of medical malpractice, drug products liability and personal injury.
Subject: Admissibility of Criminal Act in Civil Case
From: Steve Burgoon:
ssburgoon@gblaw.us: I should know this, but. . . we have an issue in a civil case in federal court, and our client has committed an unrelated crime (shoplifting). Her credibility will be at issue in the civil case. Would that crime come in to impeach her, or is it only “crimens falsi” like passing a bad (check? Thanks for any insight.
From: Steven Campen:
steve_campen@yahoo.com: Steve - I think the latter. My recollec- tion is that the crime must be one of
“moral turpitude” to be admissible, i. e., a crime that involves, at its core, dishon- esty such as fraud. I believe you and I researched the matter for Swecker, so if you give me a call on Monday, I will try to dig out the motion in limine we filed on the issue.
From: Charles Matz:
matz@comcast.net:
The issue would not be whether shop- lifting is a crime of “moral turpitude.” “Moral turpitude” was a standard that was used in some common law evidence cases on the issue of whether a prior criminal conviction was admissible for impeach- ment purposes. See McGee v. State, 332 S.W.2d 507 (Tenn. 1960); State v. Jenness,
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62 A.2d 867 (Me. 1948). In a federal court case, the issue of whether the prior shoplifting conviction is admissible for impeachment purposes is governed by Federal Rule of Evidence 609. And the issue is more complicated than whether the rule only applies to “crimen falsi.” Rule 609(a) provides: For the purpose of attacking the cred- ibility of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admit- ted, subject to Rule 403, if the crime was punishable by death or imprison- ment in excess of one year under the law under which the witness was con- victed, and evidence that an accused has been convicted of such a crime shall be admitted if the court deter- mines 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 if it involved dishonesty or false state- ment, regardless of the punishment. There are two prongs to the rule. Part (a)(1) permits the admission, for impeach- ment purposes, of prior convictions for crimes that were “punishable by death or imprisonment in excess of one year un- der the law under which the witness was convicted.” Part (a)(2) requires the admis- sion for impeachment purposes of prior convictions for crimes that “involved dis- honesty or false statement.” The difference between the two prongs in civil cases is that, for convictions that are admissible under Rule 609(a)(1), the trial court has the authority to bar admis- sion of those convictions under Rule 403. But if the prior conviction is admissible under Rule 609(a)(2) - that is, if it was for a crime that involved “dishonesty or false statement” - then the trial court is required to admit the conviction for im- peachment purposes. The court has no authority - not even under Rule 403 - to exclude a prior conviction that involved “dishonesty or false statement.” See United States v. Wong, 703 F.2d 65 (3rd Cir.
(Continued on page 24) Fall 2003
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