Supreme Court of Alabama Finds Robbery is a Crime of Dishonesty or False Statement for Impeachment Purposes

Federal Rule of Evidence 609(a)(2) provides that, when a court is deciding the admissibility of a prior conviction to impeach a witness:

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.

Similarly, Alabama Rule of Evidence 609(a)(2) provides that 

evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

So, should prior convictions for theft and/or robbery be admissible under Federal Rule of Evidence 609(a)(2) or its Alabama counterpart? 

Under federal law, the answer is clear. According to the Advisory Committee’s Notes, Federal Rule of Evidence 609(a)(2) only covers two categories of . crimes:

(1) crimen falsi, i.e., “perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense;” and

(2) crimes where other information “such as an indictment, a statement of admitted facts, or jury instructions…show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted.”

In this second category, a conviction for theft could, but likely would not qualify for admission under Federal Rule of Evidence 609(a)(2). If Dan tells Vince he’ll watch his laptop while Vince uses the restroom and the steals the laptop, his theft conviction would qualify for admission under the Rule because  his act of dishonesty was part of the crime. But if Dan saw Vince go to use the restroom and used the opportunity to pilfer his laptop, his theft conviction would not qualify for admission under the Rule because he engaged in no dishonesty.

In its recent opinion in Ex parte Byner, 2018 WL 3947705 (Ala. 2018), the Supreme Court noted that it isn’t bound by Federal Rule of Evidence 609(a)(2) or its legislative history. And, indeed, the court noted that it previously had found that property crime such as theft/larceny do qualify for admission under Alabama Rule of Evidence 609(a)(2) because they “bear[] directly on the capacity of a witness convicted of that offense to testify truthfully at trial.” 

This made the court’s conclusion easy. It noted that

Robbery, as defined in Alabama, is “theft plus the element of force or threat of force.”…Accordingly, theft has been held to be a lesser-included offense of robbery.

As a result, the court concluded that a robbery conviction qualifies for admission under Alabama Rule of Evidence 609(a)(2).

I pretty strongly disagree with this conclusion. It seems rare that a theft conviction will involve dishonesty, and it seems even rarer that robbery will involve dishonesty. Robbery is taking property by using or threatening force. There isn’t a lot of room for dishonesty there, and I wouldn’t really classify robbing someone with a water gun as a crime of dishonesty.

Of course, the Supreme Court of Alabama sidesteps this question by saying it Rule covers any crime that bears upon the capacity of a witness to tell the truth. But I don’t really see how stealing something without a lie bears upon the capacity to tell the truth any more than other crimes like trespassing, drug dealing, or arson.

-CM