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Harris v. Devendorf

United States District Court, W.D. Wisconsin

June 20, 2017

LOWMORREO HARRIS, SR., Plaintiff,
v.
CHARLES DEVENDORF and AMANDA WATERMAN, Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge

         This matter is set for trial commencing with voir dire on Monday, June 26, 2016, at 9:00 AM. A status conference is scheduled for June 21, 2016, at 1:00 PM, with a follow-up final pretrial conference scheduled for 8:30 AM on the morning of the trial. In advance of tomorrow's status conference, the court issues the following opinion and order on the parties' motions in limine. Because time is short, I am directing defendants to work with the clerk's office to ensure that plaintiff is provided with a copy of this order as soon as possible.

         OPINION

         I. PLAINTIFF'S MOTION IN LIMINE (Dkt. #145)

         Plaintiff asks the court to exclude evidence of (a) his prior convictions and (b) his disciplinary history within the prison, except for the conduct reports (#1638248 and #1649795) at issue in this case. This motion will be granted in part and denied in part, as explained below.

         A. Criminal Convictions

         Under Rule 609, felony convictions may be used to attack a witness's character for truthfulness or untruthfulness. In civil cases, felony convictions less than 10 years old “must be admitted, subject to Rule 403.” Fed.R.Evid. 609 (a)(1)(A). Rule 403 provides that the court “may” exclude relevant evidence if its probative value is “substantially outweighed” by the danger of unfair prejudice. The pendency of an appeal does not preclude use of a conviction for impeachment purposes. See Rule 609, Advisory Committee Notes, sub. e.

         In their opposition brief, defendants state that they wish to introduce the following felony convictions: (1) two counts of solicitation of prostitutes and two counts of pandering/pimping, in Milwaukee County Case No. 2010CF4362; and (2) one count of trafficking a child, one count soliciting a child for prostitution, two counts pandering/pimping, and one count of solicitation of prostitutes, in Milwaukee County Case No. 2011CF2966. While all of these offenses are less than 10 years old, none are especially relevant to plaintiff's honesty, as would be an embezzlement or perjury conviction, for example. On the other hand, the nature of the offenses could well cause the jury to be substantially prejudiced against plaintiff, particularly an explosive charge of child trafficking. Therefore, the court will permit defendants to ask plaintiff about the number, dates of the above felony convictions, and their disposition, as well as very briefly the nature of the counts of solicitation of prostitutes and pandering/pimping, but not about the nature of the convictions for trafficking a child or soliciting a child for prostitution.

         B. Prison Disciplinary History

         With respect to plaintiff's disciplinary history, defendants argue that they should be permitted to introduce the following conduct reports from plaintiff's disciplinary record:

1) #1638246, issued on August 29, 2012, for using false names and titles;
2) #1679000, issued on November 28, 2012, for lying;
3) #1638659, issued on January 16, 2013, for lying about staff, disruptive conduct and disrespect;
4) #1638248, issued on January 16, 2013 by Devendorf, for enterprises and fraud, counterfeiting and forgery and ...

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