Brooker v. Powell

• Court: District Court, D. New Hampshire
• Decided: January 23, 1995
• Docket: CV-92-401-SD
• Status: Published

Opinion

Brooker v. Powell CV-92-401-SD 01/23/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Scott/Philip Brooker

v. Civil No. 92-401-SD

Ronald Powell, et al

O R D E R

Plaintiff moves in limine to bar use by the defendants of

his record of criminal convictions in the course of trial of this

civil action. Document 58. Defendants object. Document 59.

The thrust of plaintiff's case is that the Sex Offender

Program at New Hampshire State Prison (NHSP) , wherein he is

currently confined, lacked efficacy as applied to him.

Defendants have put plaintiff on notice that they will introduce

his criminal convictions at trial.

The admissibility of the evidence at trial is governed

generally by the provisions of Rule 609(a), Fed. R. Evid. In

relevant part, under that rule, convictions which call for

imprisonment "in excess of one year . . . shall be admitted if

the court determines that the probative value of admitting this

evidence outweighs its prejudicial effect." Id. The term limits

for such admissibility run ten years "since the date of the conviction or of the release of the witness from the confinement

imposed for that conviction, whichever is the later date." Rule

609 (b) .

As plaintiff is still serving the confinement imposed by his

convictions, the convictions sought to be admitted are timely.

And, as reguired, application of the general balancing rule of

Rule 403, Fed. R. Evid.; United States v. Figueroa, 976 F.2d

1446, 1456 (1st Cir. 1992), cert, denied, ___ U.S. , 113 S.

C t . 1346 (1993), reguire a finding, here made, that in the

circumstances of this case, the probative value of admission of

such convictions is not substantially outweighed by the danger of

unfair prejudice to plaintiff. The admissibility of the

convictions will be accompanied by a proper limiting instruction,

and accordingly the motion in limine must be and it is herewith

denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

January 23, 1995

cc: Scott/Philip Brooker, pro se William C. McCallum, Esg.