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Impeachment

Volume 20, No. 116 March 2008

Matthew A. Nanninga
mnanninga@deflaw.com

            Impeachment of a witness is the process by which the laws of evidence allow the attorney to call into question the credibility of a person who is testifying at a trial.  There are several ways to impeach a witness, which include: 1) showing that the witness is biased for or against a certain party, 2) showing that the witness has made prior inconsistent statements, 3) showing that the witness had a physical or mental limitation, and therefore could not have accurately perceived the events he is testifying about, and 4) showing that the witness has a reputation for dishonesty, which is most often shown by prior criminal convictions.

            One of the strongest forms of impeachment is the prior criminal conviction.  Until recently, the longstanding rule in Georgia stated that a witness in a civil case may always be impeached by proof of a conviction for a felony or other crime involving “moral turpitude.”  In other words, if the witness had been convicted of a felony in the past, the impeaching attorney could question the witness about the conviction, in hopes that the jury would give less weight to the witness’ testimony.  The impeaching attorney could also question the witness about any conviction, including misdemeanors, so long as the crime was a crime of  “moral turpitude.”  One court defined “moral turpitude” as “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” Carruth v. Brown, 202 Ga. App. 656, 658 (Ga. App. 1992).  In general, the offenses of obtaining money from another by fraud or false pretenses or larceny after trust were considered crimes involving moral turpitude. Id.

            Until the recent Georgia Court of Appeals case of Adams v. State, Georgia case law found the misdemeanor crime of shoplifting to be a crime of moral turpitude, which by law, allowed an attorney to impeach a witness who had previously been convicted of shoplifting. Tilley v. Page, 181 Ga. App. 98, 100 (Ga. App. 1986) (holding that shoplifting is a form of theft or larceny, and such offenses have previously been held to involve moral turpitude) rev'd on other grounds.  

            In 2005, the Georgia legislature enacted O.C.G.A. § 24-9-84.1 to establish guidelines for the use of criminal convictions to impeach witnesses or defendants who testify at trial.  O.C.G.A. § 24-9-84.1 (a) (3) states, “[e]vidence that any witness or the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.”  Rather than codifying the existing standard found in Georgia case law for crimes involving “moral turpitude,” the Georgia legislature chose to use the language of the Federal Rules of Evidence Rule 609 (a) (2).  Therefore, because the Georgia legislature adopted the language in the Federal Rules of Evidence, Georgia courts would logically turn to federal case law for guidance in its interpretation of the new statute.

In Adams v. State, 284 Ga. App. 534 (Ga. App. 2007), the court found the defendant’s prior misdemeanor conviction of theft by receipt of stolen property was not a crime involving dishonesty within the meaning of O.C.G.A. § 24-9-84.1 (a) (3).  The court in Adams v. State was not asked to rule on the issue of whether misdemeanor shoplifting was a crime involving dishonesty, however, the court discussed the crime of shoplifting in its opinion. 

The court in Adams v. State, found that the United States Court of Appeals for the Eleventh Circuit has held that crimes such as theft, robbery, or shoplifting do not involve “dishonesty or false statement” within the meaning of the Federal Rules of Evidence Rule 609 (a) (2).  The court further stated that, for impeachment purposes, crimes of “dishonesty” are limited to those crimes that bear upon a witness's propensity to testify truthfully.  The court cited the case of United States v. Ashley, 569 F2d 975, 979 (5th Cir. 1978) for its holding that shoplifting was not a conviction involving dishonesty or false statement within the meaning of Rule 609 (a) (2).  For guidance, the court in Adams v. State looked at the Conference Committee Notes to the federal rule, and found that crimes involving “dishonesty and false statement” include crimes such as perjury or subornation 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.

The newly enacted O.C.G.A. § 24-9-84.1 still allows for any felony conviction to be used to impeach a witness, so long as the probative value of admitting the evidence outweighs its prejudicial effect to the witness, and not more than 10 years has passed since the conviction or release from the confinement imposed, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.  Additionally, if an attorney intends to use a prior criminal conviction more than 10 years old, the attorney must provide the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.  If the proponent fails to provide such notice, the prior criminal conviction (if more than 10 years old) will not be admissible to impeach the witness.

The Georgia legislature’s recent passage of O.C.G.A. § 24-9-84.1 and the Georgia Court of Appeals decision in Adams v. State has sparked an interesting debate about what crimes should be characterized as crimes involving dishonesty.  The court in Adams v. State pointed out that many states have differing opinions on whether to allow prior convictions of shoplifting, receipt of stolen property, and other forms of larceny to be used to impeach a witness’ testimony.  Many practitioners and lay persons would consider someone who robs, steals, or receives stolen goods knowing they were stolen to be a dishonest or deceitful person.  The Georgia Court of Appeals, however, disagrees.