Can You Impeach a Witness with a Fifth Degree Felony Conviction?

Ohio Evid. R. 609 allows a witness to be impeached with proof of a conviction of a crime.  Subsection A of Evid. R. 609 states what it terms the "General rule." That subsection reads as follows:

(A) General rule. For the purpose of attacking the credibility of a witness:

(1)  Subject to Evid.R. 403, evidence that a witness other than the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted.

(2)  Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

(3)  Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance.

An examination of the above shows that the Rule is setting forth two requirements regarding the type of  criminal conviction that may be used for impeachment. The first is found in Subsection (A) (1) and that is that the crime "was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted. The second is found in Subsection (A) (3) which states regardless of the punishment evidence of a conviction is admissible if the "crime involved dishonesty or false statement."

Up until the passage of Senate Bill 2 in 1996 all felonies were punishable by a prison sentence in excess of one year. This was because the prison for a fourth degree felony, which prior to the passage of Senate Bill 2 was the lowest degree of felony that could be committed, carried a prison range of 6 months to 18 months. Thus every felony in year, regardless of the type of felony, could be used for impeachment.

That all changed, however, when the General Assembly passed Senate Bill 2. That bill established a new degree of felony, the fifth degree felony, which was punishable by a prison sentence of 6 months to 12 months, a sentence that is not in excess of one year. Under the language of the Rule the prison term has to be in excess of one year which means that if a litigant was attempting to impeach a witness with conviction of a fifth degree felony then the mere fact that the crime was a felony wouldn't end the analysis. The trial court would then have to decide whether the offense was one that involved dishonesty or false statement.

Not all felonies are going to be considered such crimes. This was shown in the case of State v. Chambers, (12th Dist.), 2011 Ohio 1187. In that case the Court of Appeals for the 12th Appellate District faced the issue of whether a defendant was properly impeached in a trial in which he was accused of harboring a "vicious dog" under state law. In the trial it came out that the defendant had been convicted of three offenses. One conviction was for receiving stolen property. The 12th District Court of Appeals found that the crime of receiving stolen property was a crime that involved "dishonesty or false statement" and therefore impeachment was proper. See P43 of the opinion.

The other two crimes, however, for importuning and attempted unlawful sexual conduct with a minor, both fifth degree felonies. The Court of Appeals held that those two convictions could not be used to impeach because both fifth degree felonies were not punishable by death or imprisonment in excess of one year, such convictions "were inadmissible pursuant to Evid.R. 609(A)(2). See State v. Sledge, Trumball App. No. 2001-T-0123, 2003 Ohio 4100, ¶24; see, also, State v. Brown, 100 Ohio St. 3d 51, 2003 Ohio 5059, ¶26-27, 796 N.E.2d 506." See P44.

Now in analyzing whether a fifth degree felony can be used to impeach a witness you must consider the nature of the offense. If the fifth degree felony is, for example, a theft offense, then it will most likely be considered an offense of "dishonesty or false statement" and such impeachment will be allowed. If, however, the offense is one that courts do not consider to be a crime of "dishonesty or false statement" then the fifth degree felony should not be allowed as an impeachment device.

Where this issue could become a problem for the State is in a drug possession trial. There are a fair number of drug possession charges that are fifth degree felonies. R.C. 2925.11, which deals with drug possession offenses, makes possession of drugs a fifth degree felony then goes on to classify drug possession offenses as greater than fifth degree felonies depending on the nature of the drug and the amount of the drug. Thus in a trial for a second offense drug possession case where the defendant had a prior fifth degree felony conviction for drug possession the State might not be able to get such a prior conviction into evidence.

In summary when you a trying a case and you wish to use a prior criminal offense for impeachment don't assume that you can use any felony offense for impeachment. Make sure that it fits the requirements of Evid. R. 609 (A).