In 2005, Georgia rewrote the prior conviction impeachment law and codified it as O.C.G.A. §24-9-84.1. The old Georgia rule was more “loosey-goosey” but with the new law, the legislature said that the prior crime must fit certain criteria before it comes in. Certain convictions or guilty pleas for past crimes can impeach or discredit testimony in totally unrelated civil or criminal case. If the crime fits the statute and the lawyer tenders the conviction into evidence, the witness is impeached and that has two damaging effects.
The practical effect is that a jury will probably dislike the impeached witness or party and hold the criminal history against them. Juries tend not to side with people they dislike.
The legal effect is that the Judge will read the impeachment charge to the jury. A charge is a statement of the law by the judge to the jury. In this case he would tell the jury that they may legally choose to disregard all of the testimony of an impeached witness.
For a misdemeanor to come into evidence, the prior crime must be one that reflects on likelihood that the witness will lie, like a fraudulent credit car application charge or a perjury conviction for stating, “I did not have intercourse with that Lewinski woman.” Felonies come into evidence if their probative value outweighs the prejudice it inspires. In my experience, most judges will let in a felony even though it fails the test.
A witness or party can be impeached through the introduction of a certified copy of their misdemeanor conviction of a crime involving “dishonesty or making a false statement.” The new Georgia law borrowed heavily from from the Federal Evidentiary Rule found in Rule 609(a)(2). (remember states make their own rules about what evidence comes in and it is different from what the Feds do)
The FRE (Federal Rule of Evidence) allows in evidence of conviction “if the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.”
Georgia Appeals courts have looked to how the Federal Appeals courts have interpreted the FRE in applying the “new” Georgia rule. This led to some shocking decisions.
The 11th Circuit has held that theft, robbery and shoplifting do not involve “dishonesty or false statements.” United States v. Sellers, 906 F2d 597, 603 (11th Cir. 1990). “I’m sorry, come again?”
Another confusing problem arose because the old Georgia rule allowed impeachment by crimes that involved “moral turpitude.” In Adams v. State, 284 Ga. App. 534; 644 S.E.2d 426 (2007) the court held that the new statute overrides the old common law rule so the old “moral turpitude” rule is out.
Therefore misdemeanor crimes such as shoplifting will not impeach a witness. The Adams Court held for a crime to have “impeachment effect” the misdemeanor must be a crime that reflects on the witnesses’ probability of telling the truth. Explain to me again how cheating and stealing are not crimes of dishonesty? Will someone please email me when the Court of Appeals starts making sense?
O.C.G.A. §24-9-84.1(1) says that all crimes calling for punishment over 12 months will impeach a witness if the Judge decides that the probative value of admitting the evidence outweighs the prejudicial effect. In effect the legislature said “hey Judge, do what you want.”
The new Georgia rule also states that convictions over 10 years old are usually not admitted unless the conviction has an evidentiary value so important that it outweighs the “staleness” of the conviction.
In summary, there will be less impeachment by both sides going forward and you may now steal that chocolate bar and consider yourself honest.