United States District Court, S.D. Indiana, New Albany Division
ORDER GRANTING GOVERNMENT'S MOTION IN
WALTON PRATT, United States District Judge.
matter is before the Court on the Government's Motion in
Limine. (Filing No. 486.) The Government
moves to include four prior convictions sustained by
Defendant Jeffrey Kemp (“Kemp”), pursuant to
Federal Rule of Evidence 609. The Government argues the
convictions are admissible solely for impeachment purposes if
Kemp testifies. For the reasons stated below, the Motion is
Court excludes evidence on a motion in limine only
if the evidence clearly is not admissible for any purpose.
See Hawthorne Partners v. AT&T Technologies,
Inc., 831 F.Supp. 1398, 1400 (N.D. Ill. 1993). Unless
evidence meets this exacting standard, evidentiary rulings
must be deferred until trial so questions of foundation,
relevancy, and prejudice may be resolved in context.
Id. at 1400-01. Moreover, an order on a motion in
limine does not necessarily mean that all evidence
contemplated by the motion is admissible (or inadmissible);
rather, it only means that, at the pretrial stage, the court
is unable to determine whether the evidence should be
excluded. Id. at 1401.
Rule of Evidence 609 allows the admission of evidence of
prior criminal convictions when used to impeach a witness,
but different standards apply depending on whether the prior
conviction is more or less than ten years old. Rule 609
states that when attacking a witness's truthfulness,
“evidence of a criminal conviction . . . must be
admitted in a criminal case in which the witness is a
defendant, if the probative value of the evidence outweighs
its prejudicial effect to that defendant.” F.R.E.
[I]f more than 10 years have passed since the witness's
conviction or release from confinement for it, whichever is
later [then the] [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.
F.R.E. 609(b). So, within the ten-year lookback period, the
conviction's probative value must outweigh the
prejudicial effect. And beyond ten years, the
conviction's probative value must substantially
outweigh the prejudicial effect. A limiting instruction which
tells the jury that the prior convictions may only be used in
determining the credibility of the defendant reduces the
prejudicial effect of admission. United States v.
Redditt, 381 F.3d 597, 601 (7th Cir. 2004).
charged with the following offenses: (1) Conspiracy to Affect
Commerce by Robbery; (2) Conspiracy to Use a Firearm in
Furtherance of a Crime of Violence; (3) Robbery; and (4)
Brandishing a Firearm in Furtherance of a Crime of Violence.
The Government argues it should be allowed to offer evidence
of Kemp's prior convictions, for impeachment purposes,
subject to Rule 609. Kemp has accumulated the following prior
April 22, 2013, Kemp was convicted of felony burglary in Cook
County, Illinois and sentenced to six years imprisonment. He
was on parole for this conviction at the time the alleged
charges in this matter occurred. On December 18, 2006, Kemp
was convicted of felony burglary in Winnebago County,
Illinois and sentenced to three years and seven months
imprisonment. On October 6, 2006, he was convicted of felony
theft in Lake County, Illinois and sentenced to three years
imprisonment. On December 17, 2009, Kemp was convicted of
felony burglary in Kenosha County, Wisconsin and sentenced to
three years imprisonment.
Government asserts that these four convictions fall within
the ten-year lookback period, and that the convictions'
probative value outweigh any prejudicial effects of their
admission. (Filing No. 486.) For purposes of
determining whether a conviction falls within the ten-year
time period, “[t]he clock starts at the witness's
release from any physical confinement, ” and “the
end date of the time limit for impeaching convictions is the
start of the trial at which the witness is testifying.”
United States v. Rogers, 542 F.3d 197, 201 (7th Cir.
2008). Kemp has not filed a Response in opposition to this
request in limine and does not challenge the
contention that all four convictions are within the ten-year
period. Having reviewed the Government's submissions, the
Court determines that the convictions fall within the
ten-year lookback period; therefore, the probative value of
the four convictions must outweigh the prejudicial effect.
weighing the probative value against prejudice, the Court
considers “(1) the impeachment value of the prior
crime; (2) the point in time of the conviction and the
defendant's 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. Smith, 131 F.3d 685, 687 (7th Cir. 1997).
first factor-the impeachment value of the conviction-weighs
in favor of admission. The crimes of burglary and theft are
considered crimes of dishonesty or falsehood and are likely
to indicate the veracity of a witness's testimony.
See, United States v. Smith, 80 F.3d 1186,
1193 (7th Cir. 1996). The second factor-the point in time of
conviction and the defendant's subsequent history-weighs
in favor of admission. The Court has already determined that
Kemp's prior convictions are within ten years from his
releases from confinement to the commencement of the current
offenses. The prior convictions happened relatively close in
time to the events charged here, making them more relevant in
evaluating Kemp's veracity.
third factor-the point in time of conviction and the
defendant's subsequent history- also weighs in favor of
admission. Burglary and theft are not so similar to robbery
to create a risk that a jury will improperly consider the
evidence of thefts and burglaries as evidence of the