United States District Court, E.D. Wisconsin
JAMES A. PENHALLEGON, Plaintiff,
GUY NETT, and RICHARD KUGLER, Defendants.
ORDER DENYING DEFENDANTS' MOTION IN
LIMINE TO INTRODUCE EVIDENCE OF PLAINTIFF'S
CONVICTIONS (DKT. NO. 77)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
on the plaintiff's failure-to-protect claims is scheduled
to begin on May 13, 2019. The defendants moved for an order
in limine allowing them to introduce evidence of
some of the plaintiff's prior convictions. Dkt. No. 77.
For the following six convictions, they seek to introduce
only the fact that the plaintiff was convicted and the name
of the crime for which he was convicted: (1) Larceny, on
February 16, 1988 in Florida; (2) Felony Obstructing Justice,
on August 18, 1994 in Illinois; (3) Felony Deceptive
Practices, on July 20, 1995 in Illinois; (4) Misdemeanor
Retail Theft < $1, 000, on September 9, 1997, in
Wisconsin; (5) Misdemeanor Retail Theft-False Representation
< $1, 000, on November 9, 1997 in Wisconsin; and (6)
Misdemeanor Battery by a Prisoner, on April 24, 1998 in
Wisconsin. Dkt. No. 77 at 1-3.
defendants emphasize that the plaintiff's credibility is
the central issue in this case. Id. at 3. The
plaintiff asserts that he told the defendants he wanted to be
transferred to a different cell because he was afraid of his
cellmate. Id. The defendants deny that the plaintiff
expressed those fears to them; they assert that he requested
to change cells only for the sake of convenience.
Id. They argue that the plaintiff will prevail on
his claims only to the extent that the jury believes his
version of events over the defendants' version.
also argue that the plaintiff's convictions for larceny,
obstruction of justice, theft, deceptive practices and
misrepresentation are probative of credibility and are
admissible under Fed.R.Evid. 609 to impeach the
plaintiff's character for truthfulness. Id.;
Fed.R.Evid. 609(a)(2) (“for any crime regardless of the
punishment, the evidence must be admitted if the court can
readily determine that establishing the elements of the crime
required proving-or the witness admitting-a dishonest act or
plaintiff concedes that credibility is a central issue at
trial. Dkt. No. 78 at 4. He points out, however, that the
convictions are more than twenty years old. Id. He
notes that the jury will know that he is a convicted felon
because the events at issue occurred while he was
incarcerated. Id. He argues that “[s]hould the
jury hear about several other ancient convictions that have
nothing to do with the present case, they might develop a
strong bias against [him] for being a career criminal and
liar.” Id. The plaintiff asserts that the
potential for bias is high, while the probative value of
crimes committed long ago in his youth is low. Id.
Evid. 609 allows impeachment with evidence of a criminal
conviction; when more than ten years have passed since the
conviction or release from confinement for it, evidence of
the conviction is admissible only if the “probative
value, supported by specific facts and circumstances,
substantially outweighs its prejudicial effect.”
Fed.R.Evid. 609(b)(1). The Seventh Circuit has noted that
“the legislative history leading to the enactment of
Rule 609 indicates that ‘it is intended that
convictions over 10 years old will be admitted very rarely
and only in exceptional circumstances.'” U.S.
v. Fallon, 348 F.3d 248, 254 (7th Cir. 2003) (quoting
U.S. v. Shapiro, 565 F.2d 479, 481 (7th Cir. 1977)).
assist district courts in applying Rule 609, the Seventh
Circuit set forth the following five factors (frequently
referred to as the Malone factors): (1) the
impeachment value of the prior crime; (2) the point in time
of the conviction and the witness's subsequent history;
(3) the similarity between the past crime and charged crime;
(4) the importance of the witness's testimony; and (5)
the centrality of the credibility issue. U.S. v.
Malone, 537 F.2d 922, 929 (7th Cir. 1976).
parties agree that the plaintiff's testimony is important
because he is the only one who can provide evidence about
what he said to the defendants, and his credibility is
central to the case because he will prevail on his claims
only if the jury believes his testimony over the
defendants' testimony. The court agrees that final two
Malone factors weigh in favor of admitting evidence
of the plaintiff's prior convictions.
third Malone factor (the similarity between the past
crime and the charged crime) is irrelevant because this is a
civil case. That leaves the first two factors-the impeachment
value of the prior convictions and the age of the convictions
along with the plaintiff's subsequent history. These two
factors weigh against admitting the evidence.
defendants have provided no “specific facts and
circumstances” about the underlying crimes that would
enable the court to evaluate the merit of the defendants'
assertion that the convictions are highly probative of the
plaintiff's credibility. Three of the convictions
involving stealing-the 1988 larceny conviction from Florida
and the two misdemeanor retail theft convictions from
Wisconsin. Did the plaintiff steal a radio? A purse? Food?
Gum? The court knows only that the two theft convictions
involved items worth less than $1, 000; the defendants
provided no information about whether the larceny
conviction was a misdemeanor or a felony.
of the convictions are misdemeanors-maybe four, because
it's possible that the 1988 larceny conviction was a
misdemeanor. Rule 609(a)(2), which would govern the
court's analysis if these convictions were less than ten
years old, says that a party can impeach a witness with a
misdemeanor conviction only if “the court can readily
determine that establishing the elements of the crime
required proving-or the witness's admitting-a dishonest
act or false statement.” Rule 609(a)(2). Altobello
v. Borden Confectionary Products, Inc., 872 F.2d 215,
216-17 (7th Cir. 1989), contains a full discussion of this
for the sake of argument that the Florida larceny conviction
was a misdemeanor, larceny is the theft of personal property.
Without any facts about what the plaintiff allegedly did back
in 1988, the court has no reason to think that the theft
involved a false statement. The same is true for the 1997
Racine retail theft conviction. As for whether those two
convictions involved “dishonest acts, ” the
Seventh Circuit has held that “petty shoplifting”
doesn't qualify as a crime of dishonesty under Rule 609.
United States v. Galati, 230 F.3d 254, 261 (7th Cir.
2000) (citing United States v. Owens, 145 F.3d 923,
927 (7th Cir. 1998). In order for petty shoplifting to
qualify as a crime of dishonesty for purposes of Rule 609, it
must “involve items of significant value.”
Id. (citing United States v. Amaechi, 991
F.2d 374, 378 (7th Cir. 1993)). The defendants have provided
no information about the value of the items taken for either
of these misdemeanor offenses, and the court likely would not
have allowed them to impeach the plaintiff with these
convictions even if they were not thirty-one and twenty-two
years old, respectively.
1997 Kenosha misdemeanor was for theft by false
representation. The current version of that statute,
Wis.Stat. §943.20(d), does require proof of a false
statement. Perhaps that conviction would have been admissible
for impeachment if it had happened less than ten years ago.
But given that the conviction is twenty-two years old, and
given that the court has no facts about what the plaintiff
allegedly did, it has little, if any, probative value.
See Galati, 230 F.3d at 261 (“the probative
value of this 20 year old conviction, for a crime committed
when [the witness] was a college student is minimal”).
it were less than ten years old, the 1998 misdemeanor battery
conviction would not be admissible. Wis.Stat. §940.19,
in its current form, states that “[w]hoever causes
bodily harm to another by an act done with intent to cause
bodily harm to that person or another without the consent of
the person so harmed is guilty of a Class A