McCorvey v. Alabama River Cellulose LLC et al
ORDER granting in part and denying in part 153 Motion in Limine to exclude prior criminal arrest, conviction and driving records. Signed by Chief Judge William H. Steele on 11/3/2014. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
DAVID EARL MCCORVEY, JR.,
) CIVIL ACTION 13-0118-WS-N
ALABAMA RIVER CELLULOSE, LLC, )
This matter is before the Court on the plaintiff’s motion in limine to
exclude prior criminal arrest, conviction and driving records. (Doc. 153). The
defendant has responded, (Docs. 155, 159), and the motion is ripe for resolution.
I. Plaintiff’s Arrest.
The plaintiff seeks the exclusion of any evidence of his arrest (without
conviction) for domestic violence, on the grounds of irrelevance and failure to
comply with Rule 609(a). (Doc. 153 at 2). The defendant states it does not intend
to introduce such evidence. (Doc. 155). Accordingly, this portion of the motion
in limine is denied as moot.
II. Driving Records.
The plaintiff seeks the exclusion of any evidence concerning his driving
record or the driving record of any other log truck driver witness, on the grounds
of irrelevance. (Doc. 153 at 2). The defendant states it does not intend to
introduce such evidence. (Doc. 155). Accordingly, this portion of the motion in
limine is denied as moot.
III. Joseph Robinson’s Conviction.
In 2005, plaintiff’s witness Joseph Robinson was convicted of seconddegree rape (specifically, statutory rape), a felony, for which he served time before
being released in 2008. (Doc. 159-1).
“The following rules apply to 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
….” Fed. R. Evid. 609(a)(1).
Because Robinson was convicted of a felony less than ten years ago, the
conviction must be admitted unless, under Rule 403, “the probative value [of the
evidence] is substantially outweighed by a danger of … unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.”1 The plaintiff argues that the probative value of
Robinson’s conviction is substantially outweighed by the danger of unfair
prejudice. (Doc. 153 at 2-3).
Without citing any authority, the plaintiff argues that the Rule 403 test
should consider: (1) the correlation between the crime and one’s character for
truthfulness; (2) the similarity of the crime to the present action; and (3) the
temporal closeness or remoteness of the conviction. (Doc. 153 at 3). The
defendant, citing a Seventh Circuit case, agrees with the first and third factors but
argues the second is irrelevant when the witness is a witness in a civil case and not
the defendant in a criminal case. The defendant would also add as factors: (4) the
importance of the witness’s testimony; and (5) the centrality of the credibility
issue. (Doc. 159 at 2-3 (citing United States v. Nurudin, 8 F.3d 1187, 1191-92 (7th
Since Robinson’s conviction and release occurred within the past ten years, the
special balancing test of Rule 609(a)(2) does not apply.
The Court agrees with the defendant that the plaintiff’s proposed second
factor is inapposite in the civil context. The Court utilizes the remaining four
factors identified by the parties, as two are agreed and the others seem plainly
relevant to the analysis.
As to the first factor, the plaintiff argues that a conviction for rape says very
little about one’s character for truthfulness. “The implicit assumption of Rule 609
is that prior felony convictions have probative value,” but “[t]heir probative value
… necessarily varies with their nature ….” United States v. Burston, 159 F.3d
1328, 1335 (11th Cir. 1998). Specifically, “[c]rimes involving dishonesty or false
statement are often more probative of the witness’s lack of credibility than even
more serious crimes involving violence.” United States v. Cathey, 591 F.2d 268,
276 (5th Cir. 1979). “Rape is not a crime involving dishonesty or false statement
….” Czajka v. Hickman, 703 F.2d 317, 319 n.1 (8th Cir. 1983). Moreover, “we
hardly need state that rape and sexual assault convictions are among the most
prejudicial types of information the jury could learn about a plaintiff in a civil
suit.” Scott v. Lawrence, 36 F.3d 871, 874 (9th Cir. 1994). Thus, “[i]t is within the
district court’s discretion to conclude that the nature of [a witness’s] sexual
offense might inflame the jury [and] could easily have distracted the jury from its
task without adding any real probative information to their deliberations.” United
States v. Ford, 17 F.3d 1100, 1103 (8th Cir. 1994).
The defendant attempts to salvage this factor by arguing that, since
Robinson was convicted of statutory rape, presumably no force was involved in
the crime, and he continues that, absent force, it is probable that Robinson used
“artifice, tricks, schemes and/or flimflam” in order to have consensual sexual
relations with the victim. (Doc. 159 at 2). This is pure speculation on the
defendant’s part, and it does not alter the analysis in the preceding paragraph.
As to the second factor, Robinson was convicted in March 2005, almost ten
years ago. The defendant notes that Robinson was released closer to six years ago,
(Doc. 159 at 3), but the case on which the defendant relies focuses on the date of
conviction, not the date of release. Nurudin, 8 F.3d at 1192. The relative
remoteness of the conviction weighs against its use as impeachment.
As to the final two factors, Robinson’s testimony is critical, for no other
witness (not even the plaintiff) claims to have witnessed the incident, and the
credibility of his testimony is central for the same reason and because he has given
non-identical statements as to what he witnessed. These factors weigh in favor of
informing the jury that Robinson is a convicted felon but, as discussed above, they
do not change the fact that the nature of his crime adds little if anything to the
assessment of his credibility while it adds a great deal of pointless prejudice to the
After performing the balancing required by Rules 609(a)(1) and 403, the
Court concludes that the defendant should be permitted to show that Robinson has
a felony conviction, that the conviction occurred in March 2005, and that
Robinson was incarcerated until 2008. To this extent, and this extent only, the
plaintiff’s motion in limine is denied.
Rule 609(a)(1) “requires a district court to admit evidence of the nature and
number of a non-defendant witness’ prior felony convictions.” Burston, 159 F.3d
1336. However, such information can be excluded in a proper case under Rule
403. Id. This is such a case. The Court concludes that any information beyond
that listed in the preceding paragraph – including without limitation the nature of
the crime (second-degree rape or statutory rape), the age of the victim and how
many incidents there allegedly were – should be excluded because any marginal
The defendant presumably recognizes the prejudicial impact of such
information, as it dropped a footnote in its brief on motion for summary judgment to be
sure the Court was aware that Robinson had been convicted of “statutory rape” and “must
register as a sex offender.” (Doc. 106 at 13 n.12). Since, as the defendant admittedly
recognized, (id. at 2), the Court cannot consider credibility on a motion for summary
judgment, the only possible purpose for placing this evidence in the record was to
prejudice the judicial mind against the plaintiff’s case. Much the same can be said of the
defendant’s gratuitous inclusion in its present opposition brief of the age of the victim
and Robinson and of the alleged number of times they had relations. (Doc. 159 at 2).
probative value of this information is substantially outweighed by the risk of
unfair prejudice to the plaintiff. To this extent, the plaintiff’s motion in limine is
IV. Robinson’s Arrest.
Although not a subject of the plaintiff’s motion, the defendant seeks a
ruling allowing it to introduce evidence that, in 2013, Robinson was arrested for
failure to register as a sex offender. The defendant does not explain, and the Court
does not perceive, how this information could be admissible.3 Accordingly, the
defendant’s request, construed as a motion, is denied.
DONE and ORDERED this 3rd day of November, 2014.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE
The defendant notes that Robinson was “jailed” after the arrest, (Doc. 159 at 2),
but that fact fails to establish that he was convicted of a crime, much less that the crime
either was a felony or that it involved dishonesty or false statement.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?