Impeachable Offenses?: WDNY Deems Trespassing & Attempted Petit Larceny Convictions Inadmissible

Federal Rule of Evidence 609(a) provides that

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) 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.

So, when does a conviction qualify for admission under Rule 609(a)(2). Specifically, does a trespassing conviction meet the Rule 609(a)(2) standard? What about a conviction for attempted petit larceny? Let’s take a look at the recent opinion of the United States District Court for the Western District of New York in United States v. Vickers, 2015 WL 751228 (W.D.N.Y. 2015).

In Vickers,

Defendant David Allen Vickers [wa]s charged with transporting his minor step-nephew (“Victim 1”) in interstate commerce with the intent to engage in criminal sexual activity from April 1999 through 2005. Defendant [wa]s also charged with transporting his minor foster son (“Victim 2”) in interstate commerce with the intent to engage in criminal sexual activity from June 15, 2005 through March of 2007.

In response, Vickers sought to impeach both Victims. Let’s look at a few of his attempts to impeach Victim 1. Victim 1 had a misdemeanor trespassing conviction. According to the court,

Under Rule 609(a)(2), misdemeanor convictions must be admitted for impeachment if the crime involves a dishonest act or a false statement. The Second Circuit has not ruled as to whether criminal trespass is a crime involving dishonesty, however other circuits have specifically found it is not. See United States v. Rodriguez–Andrade, 62 F.3d 948 (7th Cir.1995) (district court did not abuse its discretion in excluding burglary and criminal trespass convictions because they were unrelated to witness’s ability to tell the truth). Because the criminal trespass convictions are not related to Victim 1’s capacity for truth-telling,…the defendant will not be permitted to impeach Victim 1 with his misdemeanor convictions for criminal trespass. 

I agree with this conclusion. I suppose it is possible for an act of trespassing to involve dishonesty or false statement (e.g., telling a doorman that you’ve locked yourself out of an apartment that doesn’t belong to you), but most acts of trespassing simply consist of entering property without permission.

Victim 1 was also convicted of Juvenile Delinquency for Attempted Petit Larceny. According to the court,

With respect to larceny convictions, courts are instructed to “look beyond the elements to determine whether the conviction rested upon facts establishing dishonesty or false statement.”…In addition, the Second Circuit recognizes that crimes of force, such as armed robbery or assault, and crimes of stealth, such as burglary or petit larceny, do not fall within Rule 609(a)(2).”…The underlying facts of this conviction involve Victim 1 standing outside a fence while his friend entered a storage area and stole a bicycle. The Court finds that given these facts, it is not a crime involving dishonesty or a false statement.

-CM