Below is Prof. Holbrook’s response to the question on crimes of dishonesty in DE.
In Delaware, the term “dishonesty” for purposes of Rule 609(a)(2) is much broader than the answer given below implies. It includes robbery, burglary and theft.
A seminal case is Gregory v. State, 616 A.2d 1198, Del.,1992, in which the Supreme Court of Delaware clarified that “dishonesty” includes crimes involving “lying, deceiving, cheating, stealing or defrauding”. See also Tucker v. State 692 A.2d 416, Del.Supr.,1996, and Manna v. State 945 A.2d 1149, Del.Supr.,2008.
The student should keep in mind that a court will only get to 609(a)(2) if the conviction does not qualify as a felony under 609(a)(1). Evidence admitted under 609(a)(1) is subject to a balancing test. Evidence admitted under 609(a)(2) is not. See Webb v. State, 663 A.2d 452, Del.,1995.
The relevant excerpt from Gregory v. State is as follows:
“What then constitutes a crime involving dishonesty and false statement as contemplated by D.R.E. 609? The notes to FED.R.EVID. 609(a)(2), which is virtually identical to the Delaware rule, defines such crimes as those involving “perjury, false statement, 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.” Fed.R.Evid. 609, Notes of Conference Committee, H.R.CONF.REP. No. 93–1597 (1974), reprinted in U.S.C.C.A. 7051, 7098. By comparison, we have construed the phrase “dishonesty or false statement” in D.R.E. 609 to mean that crimes involving dishonest conduct as well as crimes involving false statements are admissible for impeachment purposes, Tinnen v. State, Del.Supr., 521 A.2d 247, 1987, Christie, J., at 2 (November 18, 1986) (ORDER), and we have further defined the term “dishonesty” as the act or practice of lying, deceiving, cheating, stealing or defrauding. Id.
“In a purely philosophical sense it can be said, understandably, that all violations of the law, by their very nature, involve some element of dishonesty. Thus, one could argue that jay walking, spitting on a sidewalk, running a red light or a stop sign, and exceeding the speed limit, however slightly, are “dishonest” because they involve acts for which one can be punished by the State or its subdivisions. Those transgressions, however, are not the type which Rule 609(a)(2) contemplates. There must be something more than the act itself of violating the law. Thus, drug-related offenses generally do not fall within the rubric of D.R.E. 609(a)(2). For example, the elements of possession of a controlled substance with intent to deliver are (1) possession of a controlled substance and (2) an intent to manufacture or deliver it. Kelson v. State, Del.Super., 599 A.2d 413 (1991). The elements of this crime require no proof of conduct involving lying, deceiving, cheating, stealing or defrauding. If, despite this, we were to conclude that drug-related offenses generally involve deceit and dishonestly, then others might reasonably conclude that all offenses are of such a character. Given the plain language of D.R.E. 609(a)(2), and the analogous federal commentary, we need not add further gloss to what was clearly intended. Thus, we give effect to the manifest meaning of the words “dishonesty” and “false statement” as contemplated by the rule. That requirement precludes admission under D.R.E. 609(a)(2) of any offenses lacking the well-defined elements of such crimes.”