Deceit and the Classification of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of "Crimen Falsi"

Abstract

This article offers a historical and comparative account of crimen falsi, or the crime of deceit -- tracing the development of this concept from the Roman lex Cornelia de Falsis of the first century B.C.E.; through Las Siete Partidas of twelfth century Spain; English common law; and, ultimately, to the American Federal Rules of Evidence. Under Roman and medieval Spanish law, the term crimen falsi referred to a broad category of specific offenses such as forgery and counterfeiting, perjury, false weights and measures, and fraud. To the modern mind, such classification is puzzling. Today, criminal law systems around the world almost invariably use classifications that reflect a concern with harmfulness (e.g., crimes against the person, crimes against property). By contrast, the quite disparate offenses designated as crimen falsi seem linked less by the idea of harmfulness than by a common form of moral wrongfulness -- namely, deceit. As a category of substantive criminal law, crimen falsi has mostly disappeared. But the classification remains significant in evidence law, most notably under Federal Rule of Evidence 609(a)(2), which allows for impeachment of witnesses who have been convicted of a crime involving dishonesty or false statement. The article suggests that several of the most significant controversies surrounding the interpretation of Rule 609(a)(2) can best be resolved through an appreciation of the common law substantive history of crimen falsi.