From the Listserve (Continued from page 24)
United States v. Alexander, 48 F.3d 1477 (9th
Cir. 1995) (prior robbery convictions not admissible under Rule
(609(a)(2));
United States v. Sellers, 906 F.2d 597, 603 (11th Cir. 1990) (“It is established in this Circuit . . . that crimes such as theft, rob- bery, or shoplifting do not involve `dishonesty or false statement’ within the meaning of Rule 609(a)(2).”) Many fed- eral cases look to the Conference Report’s discussion of Rule 609(a)(2), which stated: “By the phrase `dishonesty and [sic] false statement” the Conference means crimes such as perjury or suborna-
tion 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 accused’s propensity to testify truthfully.” Thus, these federal cases limit the reach of Rule 609(a)(2) to “crimen falsi” (the crime of falsifying). State courts, when construing their own versions of Rule 609(a)(2), have reached differing results on the issue of whether crimes like “larceny” are crimes that involve “dishonesty.” In State v. Shaw, 492 S.E.2d 402 (S.C. Ct. App. 1997), the court held that “shoplifting” does involve dishonesty. In People v. Parcha, 575
N.W.2d 316 (Mich. Ct. App. 1997), leave denied, 591 N.W.2d 40 (Mich. 1999), the court held that “larceny” does not involve dishonesty, and that “retail fraud” involves dishonesty only if an affirmative misstate- ment was committed (such as changing the price tag on merchandise). For cases that held that theft-type crimes do not involve “dishonesty,”See State v. Bohe, 447 N.W.2d 277 (N.D. 1989); State v. Johnson, 784 P.2d 1135 (Utah 1989); and State v. Williams, 326 N.W.2d 678 (Neb. 1982). For cases that held that theft-type crimes do involve “dishonesty,” See State v. Dawkins, 681 A.2d 989 (Conn. App. Ct. 1996); People v. Elliot, 654 N.E.2d 636 (Ill. App. Ct. 1995); Reichmann v. State, 581 So.2d 133 (Fla. 1991); State v. Brown, 782 P.2d 1013, 1031 (Wash. 1989), opinion corrected on other grounds, 787 P.2d 906 (Wash. 1990); and State
v.Grover, 518 A.2d 1039 (Me. 1986). For a good discussion on the authori- ties on this issue, see the opinion of the Court of Appeals of South Carolina in State v. Al-Amin, which was decided on March 3, 2003, and which is linked here:
http://ww.law.sc.edu/ctapp/3602.htm. For other discussions of the issue, See
State v. Eugene, 340 N.W.2d 18, 31-33 (N.D. 1983), and State v. Anderson, 336 N.W.2d 123, 125-26 (N.D. 1983). Finally, although Maryland’s rule on prior convictions is different from Rule 609, our Court of Appeals has offered its take on the issue. Maryland Rule 5-609(a) permits admission of a prior conviction for impeachment purposes if the crime was “relevant to the witness’s credibility.” In State v. Giddens, 335 Md. 205 (1994), the Court held that the distribution of co- caine is “relevant to the witness’s credibility,” explaining that illegal drug dealers live lives of secrecy and conceal- ment. In State v. Woodland, 337 Md. 519 (1995), the Court followed Giddens and held that a conviction of possession with intent to distribute illegal drugs was also “relevant to the witness’s credibility.” Giddens and Woodland remain somewhat controversial. In a recent (dissenting opin- ion in Brown v. State, 373 Md. 234 (2003), Judge Wilner and two other judges said that they should be overruled.
Subject: Res Judicata/Collateral Estoppel?
From:Dennis O’Brien:
Obie26@aol.com: Have a matter now that involves a claim for breach of employment contract.
26 Trial Reporter
(Continued on page 28) Fall 2003
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