Hall v. Merola et al

Filing 229

ORDER granting Plaintiff's ore tenus motion for reconsideration regarding admissibility of prior conviction evidence under Fed. R. Evid. 609(1); see Order for details. Signed by Judge Brian J. Davis on 10/22/2020. (KLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WENDALL HALL,
Plaintiff,
v.

Case No. 3:15-cv-1054-J-39PDB

LIEUTENANT PETER MEROLA,
Defendant.
______________________________
ORDER
This case is scheduled for trial on October 26, 2020. At the
October 6, 2020 pretrial conference, Plaintiff’s counsel moved the
Court to reconsider part of its September 22, 2020 Order on
Plaintiff’s motion in limine (Doc. 211; Order on Motion in Limine).
In that Order, in pertinent part, the Court ruled that Defendant
may “elicit testimony that Plaintiff is a convicted felon for
purposes of impeachment under Rule 609(a), but Defendant must limit
the scope of examination to the number, date, and nature of prior
convictions,” including the “title” of the crime. See Order on
Motion in Limine at 4.
Plaintiff asks the Court to reconsider its Order with respect
to the “nature” or “title” of his prior convictions for sexual
battery.1 He argues such evidence is properly excluded under Rule

Plaintiff also has convictions for kidnapping and burglary
with assault. See Doc. 195-1.
1

403 because its probative value is substantially outweighed by the
danger of unfair prejudice.
In support of his ore tenus motion, Plaintiff offers an order
from the Southern District of Alabama in which the court ruled
that reference to plaintiff’s statutory rape conviction was not
admissible

because

“any

marginal

probative

value”

of

such

information was substantially outweighed by the risk of unfair
prejudice to the plaintiff. McCorvey v. Alabama River Cellulose,
LLC, No. CIV.A. 13-0118-WS-N, 2014 WL 5528219, at *3 (S.D. Ala.
Nov. 3, 2014) (citing Fed. R. Civ. P. 609(a)(1) and 403). The court
reasoned rape is not a crime involving dishonesty or untruthfulness
and reference to such a crime could easily “inflame the jury.” Id.
at *2. The court noted, “[W]e hardly need to 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.” Id. (quoting Scott v. Lawrence, 36 F.3d 871, 874 (9th Cir.
1994)).
The

Court

afforded

Defendant

an

opportunity

to

offer

authority in opposition to Plaintiff’s ore tenus motion. See Order
(Doc. 218). Defendant has not submitted anything for the Court’s
consideration, and the time to do so has passed.
The

Court

has

reviewed

the

McCorvey

case

and

finds

it

persuasive. And the Court’s independent research reveals other
cases that have similarly concluded evidence of a witness’s prior
2

conviction for sexual assault/battery or rape is properly excluded
because of its potential to inflame the jury. See, e.g., Thomas v.
Leifeld, No. 913CV321MADTWD, 2018 WL 3387690, at *3 (N.D.N.Y. July
12, 2018) (ruling the name and nature of the plaintiff’s rape,
attempted rape, and sexual abuse convictions were not admissible
because

they

were

prejudicial

and

not

highly

probative

of

credibility); Dykes v. Cleveland Nursing & Rehab. Ctr., No. 4:15CV-76-DMB-JMV, 2018 WL 2703135, at *1 (N.D. Miss. June 5, 2018)
(permitting into evidence that the witness was convicted of a
felony but not the nature of the felony—statutory rape).
In light of the above and given Defendant has offered no
authority opposing Plaintiff’s requested relief, the Court is
persuaded to adopt the reasoning of the McCorvey, Thomas, and Dykes
cases. A sexual battery conviction says little about a witness’s
credibility, and the potential for unfair prejudice is great. The
Federal

Rules

of

Evidence

and

Eleventh

Circuity

authority

authorize such a limitation on the introduction of prior conviction
evidence. See, e.g., United States v. Burston, 159 F.3d 1328, 1336
(11th Cir. 1998) (noting that, by its incorporation of Rule 403,
Rule 609(a)(1) implicitly assumes the probative value of prior
conviction evidence “is likely to vary depending on the number and
type of convictions”).
Accordingly, the Court grants Plaintiff’s ore tenus motion.
while Defendant may elicit that Plaintiff is a convicted felon for
3

purposes of impeachment under Rule 609(a), Defendant may not
reference by title Plaintiff’s convictions for sexual battery.
DONE AND ORDERED at Jacksonville, Florida, this 22nd day of
October 2020.

Jax-6
c:
Counsel of Record

4