Credibility Proxies: Shoplifting
In 2008 the Supreme Court of Colorado decided an interesting case called People v. Segovia, 196 P.3d 1126. Jose Segovia was being prosecuted for sexual assault on a child. At trial, defense counsel engaged in the following colloquy with the victim, a thirteen-year-old girl:
[Defense counsel]: Now, you have promised the Judge to tell the truth to this jury, haven’t you?
[Witness]: Yes.
[Defense counsel]: And in order to tell the truth to the jury, that requires you to be honest, correct?
[Witness]: Yes.
[Defense counsel]: Okay. And—but you’re not always honest, are you?
[Witness]: What do you mean?
[Defense counsel]: Well, I mean in mid-July, around July 15th of 2007, at your mother’s store in Avon, you and Josh stole $100 from your mother’s store, didn’t you?
[Witness]: No.
The prosecutor objected at this point and defense counsel argued that the question was permissible under Colorado Rule of Evidence 608(b), which is pretty much the same as F.R.E. 608(b). The trial court sustained the objection and declared a mistrial.
The Colorado Supreme Court took up the case in part to decide “whether an act of shoplifting is proper impeachment evidence under rule 608(b).”
After conducting a survey of state and federal case law, the Court found the question to be unsettled. “A majority of federal courts and some state courts have held that acts of theft are not probative of truthfulness or do not involve dishonesty,” while others hold that theft is probative of truthfulness or dishonesty. The court cited cases from Arkansas, Montana, New Hampshire, North Carolina, South Dakota, Wyoming and the Tenth, Sixth, Eighth, Fifth, D.C. and Ninth Circuits as rejecting the link between shoplifting and credibility. It countered with authority from the Seventh Circuit, Minnesota, Mississippi, Alaska, Delaware, Florida, Illinois, Maine, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, South Carolina, Tennessee, and Washington suggesting that shoplifting is probative on the question of credibility.
The Court decided to go with the latter group. Explaining that, “some acts that do not involve false statement or misrepresentation are nonetheless probative of truthfulness,” the Court determined that Colorado would not require that to be admissible on the issue of credibility, an act must “have an element of false statement or deception.” At the same time, the Court seemed to suggest that it would require something more than simply “testimony of any indication of weak or bad character as probative of veracity.”
How the Court would conduct its line-drawing between probative and inadmissible testimony about bad acts is not clear from the opinion. In explaining why shoplifting is relevant to credibility, the Court appealed to “common experience” which informed it that “a person who takes the property of another for her own benefit is acting in an untruthful or dishonest way.” This is so, the Court reasoned, because “a person who stole from another may be more inclined to obtain an advantage for herself by giving false testimony.” In other words, the Court explained, “conduct seeking personal advantage by taking from others in violation of their rights reflects on dishonesty or truthfulness.”
By this logic, it seems that many bad acts would qualify as probative of dishonesty. Parking illegally or playing loud music in violation of a noise ordinance, for example, are acts that seek personal advantage at the expense of others or society in general. Arguably, assaulting another person infringes their rights while advantaging the assailant who presumably derives satisfaction from inflicting pain on the victim. Indeed, it is hard to come up with bad acts that don’t in some way benefit the actor at the expense of others. Putting that aside, it is also not clear from the opinion why this formulation should be the test for whether evidence is admissible for impeachment unless it is through an assumption that people who commit bad acts are more likely to lie. It seems, despite their assertions to the contrary, that this fundamental propensity argument about bad acts and lying is driving the court’s opinion in Segovia, but it’s interesting that the opinion tries to offer an alternative explanation, however unpersuasive.
-JSK