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Patz v. Sureway Supermarket

United States District Court, E.D. Louisiana

January 27, 2019

VIVIAN PATZ, ET AL., Plaintiffs
v.
SUREWAY SUPERMARKET, ET AL., Defendants

         SECTION: “E” (1)

          ORDER AND REASONS

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE.

         Before the Court is a Motion in Limine, filed by Plaintiffs Vivian Patz and Michael Patz, to exclude evidence of Michael Patz's criminal record.[1] Defendants Walter H. Maples, Inc., SHH Properties, LLC, and Shelly Jambon oppose.[2]

         At deposition, Michael Patz testified that, in 2013, he finished parole for “possession with intent to distribute, two counts, and simple burglary.”[3] Defendants seek to use this evidence to impeach Michael Patz's credibility.[4] Defendants do not include in their exhibit list or list as an exhibit in the pretrial order a certified copy of his convictions.[5] Instead, they state they intend to use Michael Patz's admission at deposition to impeach him.[6]

         Rule 609 of the Federal Rules of Evidence governs the admissibility of evidence of a criminal conviction to impeach a witness's character for truthfulness. The best practice when impeaching a witness with a conviction is to possess a certified copy of the judgment of conviction.[7] Apparently, Defendants do not possess a certified copy of Michael Patz's prior convictions.

         I. If more than 10 years have passed since the Michael Patz's conviction or release from confinement, evidence of his convictions would be inadmissible.

Under Rule 609(b) of the Federal Rules of Evidence,
if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later[, e]vidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.[8]

         Because Defendants have not provided a certified copy of Michael Patz's prior convictions, they have not established whether less or more than ten years have passed since Michael Patz was convicted or released from confinement. If more than ten years, Defendants do not argue and have not demonstrated that the probative value of the convictions, supported by specific facts and circumstances, substantially outweighs their prejudicial effect. They also have not shown they have provided Plaintiffs with reasonable written notice of their intent to use the convictions. As a result, if more than ten years have passed since Michael Patz was convicted or released from confinement, evidence of his prior convictions is not admissible.

         II. If fewer than 10 years have passed since the Michael Patz's convictions or release from confinement, Rule 609(a)(2) does not require admission of evidence his convictions.

         If fewer than ten years have passed since Michael Patz was convicted or released from confinement, Rule 609(a) of the Federal Rules of Evidence applies. Under Rule 609(a)(2) of the Federal Rules of Evidence, convictions are admissible “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.”[9] “Ordinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement.”[10]Defendants argue evidence of Michael Patz's burglary conviction is admissible because simple burglary involves dishonesty or a false statement.[11] An element of burglary under Louisiana law[12] is the “intent to commit a felony or any theft, ”[13] and Louisiana law defines theft as “the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations.”[14] Defendants emphasize that the definition of theft includes “fraudulent conduct practices, or representations.”[15]

         In the Fifth Circuit, “a conviction for a crime of the present nature, ” including shoplifting, bank robbery, and felony theft, does not involve a dishonest act or false statement for purposes of Rule 609(a)(2).[16] Under the definition of simple burglary Defendants cite, intent to commit “a felony or any theft” is an element of simple burglary, so establishing the elements of simple burglary does not require proving theft. Rather, it requires proving intent to commit a felony or theft. Similarly, under the definition of theft Defendants cite, one element of the crime of theft is lack of consent or fraudulent conduct, practices, or representations. Establishing the elements of theft does not require proving fraud. As a result, a conviction for burglary does not fall within the scope of Rule 609(a)(2).

         III. Evidence of Michael Patz's convictions is inadmissible under Rule 609(a)(1)(A).

         If fewer than ten years have passed since Michael Patz was convicted or released on parole, because Rule 609(a)(2) of the Federal Rules of Evidence does not apply, the admissibility of evidence of the convictions is governed by Rule 609(a)(1)(A). Under that Rule, when “attacking a witness's character for truthfulness by evidence of a criminal conviction, for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence must be admitted, subject to Rule 403, in a civil case.”[17] Under ...


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