The 2012 Theft Conviction and the Rule 609 Date
Trial is April 22, eighteen days away. Defendant filed a motion in limine ten days ago to exclude his 2012 felony theft conviction. He was released from prison in August 2016. Plaintiff's response is due in four days. The motion argues the conviction is more than ten years old and that its probative value is outweighed by unfair prejudice. Plaintiff also knows of defendant's 2019 misdemeanor conviction for making a false statement. The theft conviction was for taking merchandise from a former employer; the 2019 misdemeanor was for false statements on a loan application. Defendant's credibility is central because the case turns on his account of the contract. The paralegal must calculate the Rule 609 date, draft the response, and advise whether to seek admission of the 2019 misdemeanor.
1. Calculate the Rule 609(b) date and state whether the 2012 conviction is subject to the ten-year bar.
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Rule 609(b) measures the ten-year period from the date of conviction or release from confinement, whichever is later. The conviction was in 2012; release was in August 2016. The ten-year period runs from August 2016 and does not expire until August 2026. The 2012 conviction is therefore not subject to the automatic ten-year bar. The motion's 'more than ten years old' argument is wrong on the law. The conviction remains subject to Rule 609(a)(1)(B) balancing: in a civil case, the court must find probative value substantially outweighs unfair prejudice. Theft by taking from an employer bears on honesty but is not automatically a dishonest-act crime under 609(a)(2).
2. How should plaintiff oppose the motion, and what facts matter most?
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Oppose the motion by correcting the date calculation and arguing the conviction is probative of defendant's credibility, which is central because the case turns on his account. Emphasize the 2016 release date, the felony grade, and the similarity between theft from an employer and his current responsibilities. Address prejudice: the conviction is not for a violent crime and can be sanitized to 'felony involving theft' if the court prefers. Offer a limiting instruction. Do not overclaim that the conviction is automatically admissible; the court retains discretion. File the response four days from now, with a proposed order and a short brief that attaches the judgment and release date.
3. Should plaintiff seek admission of the 2019 misdemeanor? Explain.
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Yes, but under Rule 609(a)(2), not (a)(1). A 2019 misdemeanor conviction for making a false statement is admissible if the crime involved a dishonest act or false statement as an element, regardless of punishment. Loan-application fraud likely qualifies. The court has little discretion to exclude it under 609(a)(2), though Rule 403 may still be argued in some circuits. Seek admission to show defendant's character for truthfulness, but sanitize the underlying facts if the court allows. If the court admits both convictions, be careful not to over-impeach; use the 2019 false-statement conviction first.