Friday, August 21, 2009

Second DCA Discusses Attacking The Credibility Of A Witness And Section 90.610(1), Florida Statutes

In Atis v. State (2D07-5924), the Second District discussed the ability to question a witness about a prior felony. The court stated:

The "crimes of dishonesty" category is used to allow cross-examination about the commission of crimes that typically are misdemeanors.

Section 90.610(1), Florida Statutes (2007), provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment. . . .

Under Florida law, all crimes "punishable by death or imprisonment in excess of 1 year" are classified as felonies. See § 775.08(1), Fla. Stat. (2007). Although it is plausible that the phrase "or if the crime involved dishonesty or a false statement regardless of the punishment" could be interpreted to include felonies already described in the preceding phrase, it is well established that these two phrases describe two distinct groups of offenses that do not overlap. As Justice Pariente explained when she was a member of the Fourth District, "The effect of the subsection, as amended by the legislature and as adopted by the supreme court, is to allow impeachment for all felonies, but restrict impeachment to only those misdemeanors involving dishonesty or false statement." Bobb v. State, 647 So. 2d 881, 884 (Fla. 4th DCA 1994). As such, when a witness has been convicted of a felony, the other party may not inquire further into whether the felony involved dishonesty or false statement because doing so "would have the impermissible and unintended effect of elevating certain felonies over others." Id.

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