Credibility Proxies: Drugs

One remaining category of crime that has a long history as a credibility proxy is drug offenses.  These offenses, like speeding, fall at the boundary between crimes of impulse (violent crimes) and crimes involving schemes that contravene social mores (like theft and prostitution).  Drug offenses have been labeled “victimless crimes” in the sense that there is no clear victim as there is in a violent attack or robbery.  While that label is controversial and often inaccurate, it offers an insight for thinking about the use of prior drug convictions as a credibility proxy. In many drug cases there is no element of taking from another for one’s personal advantage, which was identified by the Colorado Supreme Court in Segovia as a major reason why the crime of shoplifting was relevant to credibility.

Despite having no obvious element of misrepresentation or false statement, no clear victim whose property has been misappropriated through scheming, and decreasing social opprobrium, particularly when the crime involves possession of a small amount of a banned substance (see the NYC police dept’s recent decision not to make arrests of people found with small amounts of marijuana), drug offenses are per se admissible as credibility proxies in certain jurisdictions. 

Courts in the District of Columbia, for example, have long insisted that prior convictions for “possession of narcotics” involve dishonesty and false statement within the meaning of the D.C. Code of Evidence. 

That determination is based on congressional intent in adopting the D.C. Code.  In the legislative history, a list of offenses involving dishonesty or false statement included almost anything other than offenses “of passion and short temper, such as assault.”  The House committee explicitly listed, “sales of narcotic and depressant and stimulant drugs” in the list.  Without explanation, the D.C. courts extrapolated from “sale” of narcotics to possession. In a 1996 case, Holt v. U.S., 675 A.2d 474, for example, the D.C. Court of Appeals held that possession of marijuana is a crime involving dishonesty or false statement.

By contrast, in the neighboring state of Delaware, the Supreme Court has held that prior misdemeanor drug convictions are not admissible under Delaware Rule of Evidence 609(a) because they are not crimes of dishonesty.  Hull v. State, 889 A.2d 962 (2005).  South Carolina has similar precedent.  Its supreme court has held that a conviction for drug possession on its face does not involve false statements or acts of deceit.  A proponent of such evidence would need to show that an element of deceit was involved in order for the conviction to serve as a credibility proxy.  State v. Bryant, 369 S.E.2d 152. 

Interestingly, the South Carolina Supreme Court may have a chance to revisit this holding this term.  It granted cert. in State v. Broadnax, a case involving impeachment with prior convictions for armed robbery.  In holding that armed robbery, like drug possession, is not automatically considered a crime involving false statement or deception, the South Carolina appellate court may have given the Supreme Court the impetus to revisit its doctrine on impeachment with prior crimes.  I will be curious to see what it decides.

Finally, it’s worth mentioning Minnesota’s take on the question whether prior drug convictions can serve as credibility proxies.  Minnesota doctrine both accepts that drug offenses aren’t crimes explicitly involving dishonesty and holds that they can be used as credibility proxies. The reason: such convictions “enable the jury to see the whole person when judging the truth of a witness’s testimony.”  For this reason, the Minnesota Court of Appeals found that it was proper for two of a defendant’s controlled-substance convictions to be introduced in a prosecution for violation of a protective order.  The court explained that the convictions were “not without value for purpose of impeachment” because “[t]hey helped show the whole person.”  State v. Word, 755 N.W.2d 776. 

This “whole person” doctrine is in some ways refreshingly honest (no pun intended).  Rather than contort logic to explain why a particular offense has to do with a person’s credibility, it allows Minnesota courts to simply explain that juries should see the “whole person,” a goal that is clearly promoted by admitting evidence of prior convictions.  How well this doctrine comports with concomitant goals such as limiting propensity inferences and reaching accurate outcomes is a separate question.

-JSK