United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
December 19, 2017, Defendant informed the Court that he will
object to Plaintiff using prior criminal convictions to
impeach one of his witnesses, Eric Jennings. Jennings, who
was the at-fault driver when he rear-ended Plaintiff,
witnessed the field sobriety tests and Plaintiff's
interaction with Defendant. Plaintiff seeks to use a January
8, 2008 conviction for being a convicted felon in possession
of a firearm, for which Jennings was released from custody on
February 1, 2013. See United States v. Jennings, No.
3:07-cr-16, ECF Nos. 37 and 74 (M.D. Tenn.) (judgment and
petition to revoke of supervised release, indicating Jennings
began supervision on February 1, 2013). Jennings also had
three separate felony drug convictions in 1999 and 2000.
Jennings also received misdemeanors in 2005 for criminal
impersonation, a drug conviction in 1992, and a shoplifting
conviction in the late-1990s. For the reasons given on the
record, as well as the reasons below, the Court
EXCLUDES all criminal convictions from being
presented to the jury.
by a criminal conviction is governed by Federal Rule of
Evidence 609. The Court must admit the evidence in a crime
for an offense that was “punishable by death or by
imprisonment for more than one year, ” subject to Rule
403. Fed.R.Evid. 609(a)(1)(A). The Court must also admit
evidence of any crime if the elements of the crime including
the witness's dishonest act or false statement.
Fed.R.Evid. 609(a)(2). However, if ten years has past since
the witness's conviction or release from confinement for
the crime, the evidence is only admissible if “its
probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect.” Fed.R.Evid. 609(b)(1).
probative value of convictions not tending to show dishonesty
or distrust has been documented since 1884:
When it is proved that a witness has been convicted of a
crime, the only ground for disbelieving him which such proof
affords is the general readiness to do evil which the
conviction may be supposed to show. It is from that general
disposition along that the jury is asked to infer a readiness
to lie in the particular case, and thence that he has lied in
fact. The evidence has no tendency to prove that he was
mistaken, but only that he has perjured himself, and it
reaches that conclusion solely through the general
proposition that he is of bad character and unworthy of
Green v. Bock Laundry Mach. Co., 490 U.S. 508 n.4
(1989) (quoting Gertz v. Fitchburg R.R. Co., 137
Mass. 77, 78 (1884)).
only crime that Plaintiff informed the Court is within ten
years is the 2008 firearms conviction. Evidence of this
conviction must be admitted, subject to Rule 403.
“Convictions for murder, conspiracy, robbery, and
weapons possession are generally not particularly probative
as to honesty or veracity.” Somerville v.
Saunders, No. 9-11-cv-556, 2014 WL 272415, at *8
(N.D.N.Y. Jan. 24, 2014) (citing United States v.
Estrada, 430 F.3d 606, 617-18 (2d Cir. 2005)); see
Clem v. Lomeli, No. 2:05-cv-2129, 2007 WL 2688842, at *2
(E.D. Cal. Sept. 13, 2007) (finding that convictions of
second degree murder, false imprisonment, terroristic
threats, and possession of a firearm by a felon were not
probative to an excessive force claim arising from conduct of
officers inside the jail). Especially because Jennings is
only being called as an eyewitness to the interaction between
Plaintiff and Defendant, the Court finds that the very
limited probative value, if any, is substantially outweighed
by the unfair prejudice of labeling the witness as a
“felon.” As such, this conviction is excluded.
did not contest Defendant's assertion that the drug
convictions are more than ten years old, and therefore fall
under Rule 609(b). Under Rule 609(b), Plaintiff did not prove
that the limited probative value of any such drug conviction
substantially outweighed the unfair prejudice of admitting
the convictions. This case is not about Jennings'
drugs-it is about whether Plaintiff's interaction with
Defendant would lead a reasonable officer to believe
Plaintiff was on drugs. Jennings' 10-year-old conviction
is excluded The misdemeanor convictions that involve
Jennings' dishonest acts or false statements are also
excluded. The Court weighs five factors in determining the
admissibility of the stale convictions: “(1) the
impeachment value of the prior crime; (2) the point in time
of the conviction and the witness' subsequent history;
(3) the similarity between the past crime and the charged
crime; (4) the importance of the defendant's testimony;
and (5) the centrality of the credibility issue.”
United States v. Huff, 149 F.3d 1185, at *2 (6th
Cir. 1998) (table) (citing United States v. Sims,
588 F.2d 1145, 1149 (6th Cir. 1978)). Convictions over ten
years old, or “stale convictions, ” should be
admitted “very rarely and only in exceptional
circumstances.” Id. (citing Sims, 588
F.2d at 1147). This is not that rare case. The two stale
convictions at issue-criminal impersonation and
shoplifting-from twelve years and about twenty years earlier
have no value on the jury's ability to judge
Jennings' credibility. Jennings is just an eye witness,
and the probative value of attempting to impeach him with
stale convictions does not substantially outweigh the unfair
all criminal ...