From the Listserve (Continued from page 22)
1983). As stated in the Conference Re- port for the rule (when Congress enacted the Federal Rules of Evidence): “The ad- mission of prior convictions involving dishonesty and false statement is not within the discretion of the Court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted.” Rule 609(a)(1). You stated that your client’s prior con- viction was for “shoplifting.” There is one preliminary question. When did this con- viction occur? Maryland has not had a separate “shoplifting” statute since 1979. See former Art. 27, section 551A. In 1978, the statute was repealed, effective July 1, 1979, See 1978 Md. Laws ch. 849, sec. 4, and shoplifting is now handled under Maryland’s theft statute. See Section 7-104 of the Criminal Law Article. (If your client’s conviction was more than 10 years old, then see Rule 609(b) for the proce- dure that must be followed. In any event, under Rule 609(a)(1), the issue is whether shoplifting was punish- able by imprisonment of more than one year. In Maryland, it is. (I am assuming that your client’s shoplifting conviction was in Maryland.) Under Section 7- 104(g) of the Criminal Law Article, theft
of property or services worth $500 or more is punishable by imprisonment of up to 15 years and a fine of up to $25,000, and restitution. Theft of property or ser- vices worth less than $500 is punishable by imprisonment of up to 18 months and a fine of up to $500, and restitution. Heightened penalties for “petty theft” are authorized if the defendant was a repeat offender.
Thus, a Maryland conviction for theft is punishable by imprisonment of more than one year. Accordingly, it can be used to impeach your client’s testimony, un- less the trial court excludes the conviction (as it has the authority to do) under Rule 403. Rule 609(a)(2) (The next issue is whether a conviction for shoplifting or theft involves “dishonesty or false state- ment,” and thus is automatically admissible under Rule 609(a)(2). If your case is pending in the United States Dis- trict Court for the District of Maryland, See United States v. Carroll, 663 F. Supp. 210 (D. Md. 1986).
At first blush, it seems obvious that
theft involves “dishonesty.” As stated by future Chief Justice Warren Burger, “In 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.” Gordon v. United States, 127
U.S. App. D.C. 343, 347, 383 F.2d 936 (1967). (However, the federal courts have shied away from that “first blush” view of theft, and have held that larceny and simi- lar crimes are not crimes of “dishonesty,” at least when they don’t involve affirma- tive lies. The federal courts tend to regard these crimes as crimes of “stealth,” and not dishonesty.
The leading cases are a trio of cases
Cir. 1998) (prior robbery conviction not admissible under Rule 609(a)(2));
(Continued on page 26)
WALLS REPORTING, INC. 410-647-6434
from the D.C. Circuit. In United States v. Smith, 551 F.2d 348, 362 (D.C. Cir. 1976), the court said that “dishonesty or false statement” in Rule 609(a)(2) was intended by Congress “to denote a fairly narrow subset of criminal activity.” The court held that attempted robbery did not fall within that subset. In United States v. Dorsey, 591 F.2d 922 (D.C. Cir. 1978), the court held that a Maryland “shoplift- ing” conviction (under former Article 27, section 551A) was not admissible under Rule 609(a)(2). Shortly thereafter, in United States v. Fearwell, 595 F.2d 771 (D.C. Cir. 1978), the court held that “petty larceny” did not qualify as a crime involving “dishonesty or false statement.” For other federal cases in this regard, See United States v. Dunson, 142 F.3d 1213 (10th
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Trial Reporter
Fall 2003
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