In countless workers’ compensation claims, the sole witness to an on-the-job injury is the claimant himself.  Therefore, many cases turn on the credibility of the witnesses when establishing whether an accident occurred.  For that reason, a claimant’s prior criminal convictions can play an integral role in discrediting his testimony at trial.  In Georgia, it had long been established that a witness could be impeached at trial by evidence of a prior conviction for a crime of “moral turpitude.”  However, a new statute enacted in 2005 effectively did away with the “moral turpitude” standard.  Instead, it allows for impeachment with convictions involving dishonesty or making a false statement.  The Georgia Court of Appeals’ decision in Adams v. State sought to apply the new statute, but the outcome begs the question: are theft, robbery, and shoplifting “honest” crimes?

Prior to 2005, Georgia law governing the use of convictions to impeach witnesses had never been codified, but, instead, was a creature of state common law.  Under the common law, a witness could be impeached by proof of general bad character, or by proof that the witness had been convicted of a crime involving moral turpitude. See Sapp v. State, 271 Ga. 446, 520 S.E.2d 462 (1999).   Georgia courts interpreted “crimes of moral turpitude” to include misdemeanor and felony convictions such as, theft, shoplifting, the making of terroristic threats, and the giving of a false name to a police officer, among others.  Although vague, this standard focused on whether the witness’ crime involved a breach of the accepted morals of a community.

As part of the Criminal Justice Act of 2005, the Georgia legislature enacted O.C.G.A. §24-9-84.1.  Under the new law, a witness can be impeached with evidence of a conviction of any crime that involves “dishonesty or making a false statement.”  The language of the new statute closely mirrors that of the Federal Rules of Evidence, Rule 609(a)(2) which states, “evidence that any witness has been convicted of a crime shall be admitted…if the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.”  

Furthermore, akin to the Federal rule, the new Georgia law requires that convictions over ten (10) years old must not be admitted unless the court performs a balancing test and finds the probative value of the conviction outweighs the prejudice it will cause to the witness.  Since most convictions over ten (10) years old have little probative value, they are usually excluded from evidence.  The common law contained no stringently enforced temporal limitation, but courts were less likely to admit a conviction far-removed in time.

To gain an understanding of §24-9-84.1, it is helpful review the federal courts’ interpretation of Rule 609(a)(2).  First and foremost, the 11^th Circuit Court of Appeals established that crimes such as theft, robbery or shoplifting do not involve “dishonesty or false statements.” See United States v. Sellers, 906 F2d 597, 603 (11^th Cir. 1990).  In fact, according to the conference committee notes for Rule 609, crimes involving “dishonesty and false statements” include offenses 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.  1974 U.S.C.C.A.N. 7098. 

For almost two years after the enactment of the Criminal Justice Act of 2005, it was unclear whether the common law “moral turpitude” standard continued to be applicable in concert with O.C.G.A. §24-9-84.1, or whether the newly codified law vanquished the applicability of Georgia’s common law standard for admissibility.  The Georgia Court of Appeals answered those questions in Adams v. State.  In Adams, the defendant claimed the trial court erred in allowing the state to impeach his credibility by admitting a prior misdemeanor conviction for theft by receiving stolen property, which was found to be an offense involving dishonesty within the meaning of O.C.G.A. §24-9-84.1(a)(3). See Adams, 284 Ga. App. 534; 644 S.E.2d 426 (2007).  The Adams Court recognized that misdemeanor convictions such as theft and shoplifting were considered crimes of moral turpitude and could be used to impeach a witness’ credibility under Georgia common law.  However, since the legislature adopted the language of the federal law instead of expressly codifying the existing common law, the Court found it was not the intent of the legislature for §24-9-84.1 to be applied in the same manner as the existing law. 

Moreover, to determine what constitutes a crime of dishonesty or making a false statement under the new statute, the Court looked to the federal courts’ interpretation of Rule 609.  The Court cited the Sellers case, which, as mentioned above, expressly found that theft, robbery and shoplifting were not crimes of dishonesty under Rule 609.   Ultimately, the Court of Appeals concluded that since the language of §24-9-84.1(a)(3) mirrors a federal statute, it should be applied in the same manner as its federal counterpart.  Accordingly, the Adams Court held that, for impeachment purposes, crimes of “dishonesty” are limited to those crimes affecting the claimant’s likelihood of testifying truthfully, and the defendant’s conviction for theft by receiving stolen property was erroneously admitted.

In a special concurrence, Judge Smith argued that the majority’s judicial construction of §24-9-84.1 is unnecessary and improper since the language of the statute is unambiguous and “dishonesty is a word in common usage with a meaning known to all.” Adams at 542. Furthermore, Judge Smith argued that the definition of dishonesty encompasses more than just untruthfulness under oath, and to define dishonesty so narrowly misconstrues the statue and renders the second caveat of “making a false statement” redundant and meaningless.  He concludes that it was not the intent of the legislature to draft a statute in such a way as to include words without meaning and disagrees with the majority’s holding that theft by receiving stolen property is not a crime of dishonesty under §24-9-84.1.  

Although, at first blush, it seems that the newly codified Georgia law will make it more difficult to impeach a witness using prior convictions, a separate provision of O.C.G.A. §24-9-84.1 provides an additional method to admit convictions for impeachment purposes.  Section 24-9-84.1(1) allows for all convictions punishable by more than one year imprisonment – effectively all felony convictions – to be admitted if the court determines the probative value of admitting the evidence outweighs the prejudicial effect to the witness. 

At the end of the day, the Adams case is the Georgia Court of Appeals’ sole interpretation of 24-9-84.1(a)(3), and many more judicial decisions are needed in order to fully realize the impact of the Criminal Justice Act of 2005 on using a witness’ prior convictions for impeachment purposes.   However, one thing is clear: under current Georgia law, theft convictions are not considered a “crime of dishonesty” for impeachment purposes.