State v. McKinsey

Johnson, J.

(dissenting)—In holding that possession of stolen property is automatically admissible to impeach a witness under ER 609(a)(2), the majority follows the ill-advised "plain language" approach of State v. Ray, 116 *915 Wn.2d 531 , 806 P.2d 1220 (1991). The court should instead return to the narrower, and more justifiable, interpretation of the rule adopted in State v. Burton, 101 Wn.2d 1 , 676 P.2d 975 (1984), and thereby relegate any change in the rule to the formal rulemaking process.

Ray dramatically changed the law in this area. Prior to Ray , this court consistently held that crimes of "dishonesty" under ER 609(a)(2) referred only to crimes containing elements in the nature of "crimen falsi". 1 Elements of "crimen falsi" include deceit, fraud, untruthfulness or falsification. See Burton, at 10.

The limitation of "crimen falsi" served a vital purpose. It restricted the rule's application to those convictions relating directly to the witness' propensity to tell the truth in court. As this court stated in Burton ,

[t]he purpose of allowing impeachment by prior conviction evidence is to shed light on the defendant's credibility as a witness. Therefore, prior convictions admitted for impeachment purposes must have some relevance to the defendant's ability to tell the truth. Simply because a defendant has committed a crime in the past does not mean the defendant will lie when testifying.

(Citations omitted.) Burton , at 7-8.

Based on Burton , this court held that the crime of possession of stolen property is not a crime involving dishonesty under ER 609(a)(2). State v. Harris, 102 Wn.2d 148, 156-57 , 685 P.2d 584 (1984).

This court's rejection of Burton is deeply flawed. Because these flaws are fully revealed in the dissenting opinion in Ray , as well as in the concurring (and then controlling) opinions issued in State v. Brown, 113 Wn.2d 520 , 782 P.2d 1013 , 787 P.2d 906 , 80 A.L.R.4th 989 (1989), I merely summarize some of their arguments here.

*916 In rendering automatically admissible under ER 609(a)(2) many crimes that do not bear directly on testimonial truthfulness, 2 the Ray standard distorts the rule's intent. This overly inclusive approach also undermines the discretionary balancing test of ER 609(a)(1). Ray appears to render Washington's rule the "most inclusive" and "least discretionary" of all jurisdictions adopting rules based on Fed. R. Evid. 609. Ray , at 555 (Dolliver, J., concurring in part, dissenting in part) (quoting R. Aronson, Evidence in Washington 609-10 (1989)). Ray's broad applicability is problematic because prior convictions may readily be misconstrued as evidence of guilt. See Burton, at 9. Moreover, Ray leads to ludicrous results. A misdemeanor conviction for possessing stolen property is automatically admissible, while a murder conviction is only admissible if it satisfies the balancing test of ER 609(a)(1). See Ray, at 555 (Dolliver, J., concurring in part, dissenting in part).

Finally, if Burton is to be overturned, it should be done through this court's formal rulemaking process rather than by judicial fiat. Justice Dolliver addressed this point succinctly in his opinion:

In adopting [ER 609(a)(2)], this court explicitly chose to impose more restrictions on admissibility. See Comment, ER 609, 91 Wn.2d 1150 (1979). It is inappropriate for the court now unilaterally to alter ER 609(a)(2) by "interpreting" it so it becomes virtually meaningless. The court ought to use extreme caution in giving different meanings to its rules depending on the majorities which rise and fall with each case. Any change in the interpretation of the rule ought to be subject to the formal rules process adopted by the court, GR 9, rather than ad hoc procedure adopted by the majority.

Ray , at 555-56 (Dolliver, J., concurring in part, dissenting in part).

*917 This court should return to the Burton standard. Because possession of stolen property is not a crime of dishonesty under that standard, I dissent.

Utter, J., concurs with Johnson, J.

Although the lead opinions in State v. Brown, 111 Wn.2d 124 , 761 P.2d 588 (1988) (Brown I) and in State v. Brown, 113 Wn.2d 520 , 782 P.2d 1013 , 787 P.2d 906 , 80 A.L.R.4th 989 (1989) (Brown II) purported to overturn Burton , neither opinion was signed by a majority of the court.

It can be argued that Ray reaches so far as to render all intentional crimes automatically admissible. Ray extends automatic admissibility to crimes that are commonly perceived as dishonest. Ray , at 546. Many people would consider dishonest any intentional violation of the law.