(concurring in part, dissenting in part) — The majority holds inadmissible for purposes of impeachment petitioner's prior misdemeanor convictions for petit larceny and shoplifting. In so doing, the court suggests that prior convictions can be categorized as crimes of "dishonesty or false statement" merely by looking at the name of the crime. I disagree with this simplistic approach to ER 609(a). As the United States Court of Appeals for the District of Columbia acknowledged:
Shoplifting may or may not be probative of a lack of veracity, depending on the nature and circumstances of the crime. It can range from an impulsive "grab and run" in full view of store officials, to a discreet slipping of merchandise into a handbag, or even to an outright lie about one's identity or ownership of a credit card. Without evidence of the nature of the crime at issue here or its surrounding circumstances, the district court simply could not determine how probative (if at all) Crawford's shoplifting conviction may have been on her propensity to tell the truth . . .
United States v. Crawford, 613 F.2d 1045, 1052 (D.C. Cir. 1979). If the purpose of ER 609(a) is to identify those witnesses who demonstrate a disregard for truthfulness, then fulfillment of that purpose necessitates an inquiry into the circumstances of the prior conviction and the commission of the underlying crime, regardless of the label attached to the crime.
Several federal courts of appeals have found that federal Rule of Evidence 609(a) requires some investigation into the nature and circumstances of a prior conviction as a prerequisite to its admissibility for impeachment purposes. *12United States v. Crawford, supra. See United States v. Ortiz, 553 F.2d 782 (2d Cir. 1977); United States v. Mahone, 537 F.2d 922 (7th Cir. 1976) (dicta). Washington's ER 609(a) should also require the trial court to determine whether a prior conviction reveals the witness' regard for truthtelling under circumstances that could give rise to criminal sanctions for perpetration of a falsehood. I do not intend to suggest, however, that the facts and circumstances of every misdemeanor must be investigated by the trial court in each ER 609(a) proceeding. Some misdemeanor crimes will necessarily involve "dishonesty or false statement." Therefore, whether the trial court must make an inquiry into the circumstances of the prior crime is a decision resting in the trial court's sound discretion.
Although asserting at page 10 that "crimes of theft in general do not contain the requisite element of untruthfulness" (italics mine), the majority categorically denies admission of petitioner's prior misdemeanor convictions for shoplifting and petit larceny without knowing the circumstances of his commission of either. If the majority thus intends to create a per se rule of inadmissibility for petit larceny and shoplifting, I strongly disagree. If the intention is to provide a definition of the requisite "dishonesty or false statement" to guide the lower courts, I agree that such a definition is needed. I doubt, however, that the majority's per se rule sheds much light on that critical phrase. I would remand to the trial court for a proper inquiry into the circumstances of the misdemeanors in question.
Rosellini, J., concurs with Dimmick, J.