Deceit and the classificatiion of crimes: Federal Rule of Evidence 609(A) (2) and the origins of the crimen falsi.

• Author: Green, Stuart P.

Few conceptual schemes in criminal law are as widely accepted, or as deeply ingrained, as the classification of offenses according to the nature and degree of their harmfulness. Whenever criminal conduct is to be classified, it is necessary to ask who, or what interest, is harmed or sought to be protected.(1) Indeed, if one looks at criminal codes around the world, one is struck--despite the great variation in, say, the elements of offenses(2) --by the nearly universal use of harm- or interest-based classificatory terms such as "crimes against the person," "crimes against the state," "crimes against property," "crimes against public order," and "crimes against public morality."(3) Even in federal criminal law, which has yet to be organized into an integrated code, offenses are categorized according to the kinds of interests protected--whether it is protecting legitimate businesses from infiltration by organized crime (as in RICO),(4) or protecting native American Indian communities from the commission of a wide range of specific offenses (as in the Indian Crimes Act of 1976).(5)

Such emphasis on harmfulness as a classificatory principle is understandable. Harmfulness is viewed as the "linchpin" of the criminal law, the moral element that justifies punishment and practically defines criminality.(6) At least since John Stuart Mill, harmfulness has been viewed as the sine qua non of criminalization.(7) Asking what harms are caused or interests affected is thus a natural place to begin the task of classifying.(8)

Despite its prominence, however, harmfulness has never been the sole principle around which crimes have been classified. Common law classifications such as felony, misdemeanor, and major and petty offense, for example, all depend on the idea of seriousness--a concept that is broader than (though it obviously includes) harmfulness.(9) Other classifications, such as malum in se and malum prohibitum,(10) and infamous and noninfamous,(11) also rely less on a concept of harmfulness than on the idea of moral wrongfulness (the degree to which an act violates a moral norm) or culpability (whether an actor intended her act or was mistaken or insane).(12)

How we classify crimes is (as I have suggested elsewhere) important, both doctrinally,(13) and as a window into the deeper moral and social content of specific offenses.(14) Yet to consider each of these various systems of classification (i.e., felony vs. misdemeanor, malum in se vs. malum prohibitum, infamous vs. noninfamous) would constitute a vast (and perhaps tedious) undertaking. This article focuses instead on the history of one particularly intriguing form of classification--namely, the concept of crimen falsi, the crime of falsehood or deceit.

To the modern American lawyer, crimen falsi is familiar, if at all, as a category of offenses recognized by Rule 609(a)(2) of the Federal Rules of Evidence, which allows for impeachment of a witness who has been convicted of a crime involving "dishonesty or false statement." The original Conference Report makes the link between Rule 609(a)(2) and the crimina falsi explicit, defining the phrase "crimes involving dishonesty or false statement" as "crimes such as perjury, subornation of perjury, false statements, 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."(15) Yet the idea of crimen falsi did not originate with the Federal Rules, nor indeed with the law of evidence. Long before crimen falsi comprised an evidentiary concept, it functioned as a classification in substantive criminal law.

Part I of this article considers several preliminary matters concerning the definition of deceit, the role of deceit in both unifying and distinguishing various criminal offenses, and the relationship between deceit and social harmfulness. Part II surveys the history of crimen falsi from its origins in the Roman law of the first century B.C.E. to its refinement in the Spanish law of the 1200s. Part III describes the transformation of crimen falsi from a substantive criminal law category to an evidentiary category that, initially, allowed for the disqualification of witnesses, and, later, merely their impeachment. Finally, Part IV examines the modern law of crimen falsi, suggesting that two of the most intractable problems in the interpretation of Federal Rule of Evidence 609(a)(2) are most properly addressed with an appreciation of the doctrine's substantive criminal law origins.

1. PRELIMINARY ISSUES

   1. WHAT IS "DECEIT"?

      Before we can talk about the concept of deceit as a means for classifying crime, it will be helpful to have a definition of the term. As I shall use it here, deceit will refer to the communication of a message with which the communicator, in communicating, intends to mislead--that is, the communication of a message intended to cause a person to believe something that is untrue.(16)

      It is important to note, however, that deceitful conduct that may satisfy the elements of one criminal statute may not satisfy the elements of another. Consider the difference between perjury and mail fraud. As explained by the Supreme Court in Bronston v. United States, a non-responsive statement that is literally true is not perjurious, no matter how misleading.(17) (One need only think of President. Clinton's supposedly "legalistic" defense to charges that he committed perjury during his deposition in the Paula Jones case.) Yet, as demonstrated by the Ninth Circuit's widely cited opinion in Lustiger v. United States, a similarly true but misleading statement can constitute a "scheme to defraud" under the mail fraud statute.(18) The point is simply that deceit in the criminal law, as elsewhere, is an elastic and frequently variable concept.

   2. DECEIT AS A UNIFYING, AND DISTINGUISHING, FACTOR

      Even if there were a fixed and certain concept of deceit that applied to all crimes, there would remain questions about which offenses should be classified as crimes of deceit. As we shall see when we consider Federal Rule of Evidence 609(a)(2), courts have struggled to determine whether offenses such as embezzlement, larceny, blackmail, and extortion should qualify as crimes "involving dishonesty or false statement."(19)

      For now, it is enough to note that any grouping of "crimes of deceit" will comprise a range of offenses involving quite different forms of harmfulness. Perjury and false statements, for example, involve injury to the administration of government. Forgery and false pretenses, by contrast, typically involve harms to business relations. The only plausible basis for grouping together such otherwise disparate offenses is that all involve a common form of moral wrongfulness.

      The concept of deceit, moreover, can also serve as a factor that distinguishes otherwise similar offenses. Consider the distinction among larceny, embezzlement, and false pretenses. All three offenses involve the same basic harm--the misappropriation of another's property. What distinguishes them is the morally wrongful means by which such property is taken. In contrast to larceny (which requires stealth) and embezzlement (which involves a breach of trust), false pretenses is distinguished by the requirement of deceit.

   3. THE RELATIONSHIP BETWEEN DECEIT AND HARMFULNESS

      Although harmfulness and the morally wrongful act of deceit constitute distinct criteria for classifying offenses, it should be clear that deceit and harmfulness are not wholly unrelated. Indeed, deceit often causes harm. A society in which deceit and dishonesty are rampant will be unstable; personal relations will suffer, commercial transactions will be hindered, government operations will be impeded, uncertainty and cynicism will prevail.(20)

      The significance of harm-causing deceit is particularly evident in the law of theft. Consider again the distinction between larceny and false pretenses. Although both involve the wrongful taking of property, the harms involved in the two crimes are distinguishable. One who has been defrauded of fifty dollars by a confidence man is likely to feel very different from a person who has had fifty dollars stolen by a thief. As Peter Alldridge has noted:

      [I]f a victim is going to suffer a particular harm, it is less painful for him or her and less culpable of the person causing it that the harm should be caused without whatever additional unpleasantness comes from the deception of the victim. In the case of frauds there is far more likely to be the loss of self-esteem consequent upon feeling responsible by reason of having been duped.(21) Given its relationship to harmfulness, then, it is not surprising that deceit continues to play a role in various classificatory schemes. A good example is the way in which both the Model Penal Code(22) and the English Theft Act of 1968(23) have dealt with deceit in the law of theft. Both statutes consolidate the traditional acquisitive offenses (larceny, embezzlement, false pretenses, extortion, blackmail, fraudulent conversion, and receiving stolen property) in a manner that obviously reflects the similarity in harms caused.(24) Yet, within the broad rubric of "theft offenses," each statute retains categories such as Theft by Deception (in the case of the Model Penal Code(25)) and Obtaining Property by Deception (in the case of the English Theft Act(26)). In both instances, the principal factor that distinguishes such offenses from other theft offenses is the presence of deceit.

2. ORIGINS OF CRIMEN FALSI

   1. THE ROMAN LEX CORNELIA DE FALSIS

      Centuries before crimen falsi denominated a concept in the law of evidence, it functioned as a category of Roman substantive criminal law. The term first appeared during the late Republic, in the lex Cornelia de Falsis of 81 B.C.E.(27) Although the original text of this law has been...