A Brief Refresher: Impeachment for a Conviction Involving a Dishonest Act or False Statement.

• Author: Wessels, Brett

"Mr. Blagojevich, you are a convicted liar, correct?" (1) --Government prosecutor Reid Schar's opening question during cross examination of impeached Illinois Governor Rod Blagojevich. No PUN INTENDED, but Rod Blagojevich has been impeached twice: As the Governor of Illinois in 2009 and on the witness stand in his 2011 corruption retrial. The jarring, opening question on cross examination by the federal prosecutor was objected to several times by Blagojevich's defense team, but ultimately the court made Blagojevich answer. Among other items, this article reminds us why the question was permissible and perhaps why the question wasn't asked on direct examination.

Under the common law, a witness was not allowed to testify if the person had been convicted of an 'infamous crime.' Such a person was considered unfit to testify because the witness lacked credibility. While that rule is now antiquated, there still remains testimonial and evidentiary untrustworthiness associated with a prior conviction. A prior conviction impeaching a witness is governed by Federal Rule of Evidence 609, "Impeachment by Evidence of a Criminal Conviction." (2)

This article focuses on 609(a)(2).This rule states a witness must be impeached for a conviction involving a dishonest act or false statement-crimes commonly referred to by the judiciary, the legislature, and for the purposes of this article, as crimen falsi crimes. This article examines the 2006 amendment, examines the test to determine crimen falsi crime, discusses the advantages of a crimen falsi conviction for impeachment, and provides an overview of practical considerations surrounding the impeachment.

THE 2006 AMENDMENT TO 609(A)(2)

Prior to 2006, 609(a)(2) mandated admission of convictions "involving dishonesty or false statement." (3) Understandably, involvement was interpreted differently and a circuit split was formed. The majority test was a fact intensive examination made on a case-to-case basis, while a minority of jurisdictions examined the elements of the crime to see whether falsity or deceit was explicitly stated.

The Conference Committee initially favored the elements test, but there were concerns that this would sometimes exclude highly probative acts. (4) For example, a conviction of a witness making a false claim to a federal agent could be charged as "Material Misrepresentation to the Federal Government" (5) or "Obstruction of Justice." (6) While the former expressly references deceit, the latter does not. Under a strict...