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Fuggett v. Aronowicz

Superior Court of Delaware

June 27, 2017

Arthur Fuggett, et al.
v.
Kristen Marie Aronowicz

          Submitted: June 20, 2017

          David P. Cline, Esq. David P. Cline, P.A.

          Michael A. Pedicone, Esq. Heckler & Frabizzio

         Dear Counsel:

         Pending before me are two motions in limine regarding the admissibility for impeachment purposes of the plaintiffs past criminal convictions. The parties sought a ruling on these motions as promptly as possible, although trial has been postponed until June 2018.[1] The motions present a singular issue: whether the probative value of the past convictions, supported by specific facts and circumstances, substantially outweighs the prejudicial effect of the convictions' admission into evidence.

          This is an automobile accident case in which the parties' disputes center on causation and damages. The plaintiff, Arthur Fuggett, was convicted of two crimes that the defendant, Kristin Aronowicz, seeks to admit into evidence at trial to impeach Fuggett under Delaware Rule of Evidence 609: (1) a conviction for Theft by Deception in 1994 (the "Theft Conviction"); and (2) a conviction for Escape After Conviction on November 20, 2007 (the "Escape Conviction").

         Fuggett was convicted of both crimes more than 10 years before the date of trial, which is scheduled to begin on June 11, 2018.[2] The parties therefore agree that, under Delaware Rule of Evidence 609 ("Rule 609"), evidence of the convictions is not admissible "unless the [C]ourt determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."[3]

         Aronowicz argues Fuggett's credibility is "absolutely the most critical aspect of his personal injury claim" because Fuggett's alleged injuries and his medical experts' opinions largely rely on his subjective complaints.[4] Credibility, however, is crucial in most trials, and subjective complaints are common in personal injury actions. Rule 609 nonetheless presumes that convictions older than 10 years are not admissible and requires the proponent of such evidence to provide "specific facts and circumstances" supporting a conclusion that the probative value of such evidence substantially outweighs the risk of prejudice.

         Aronowicz has not offered any specific facts and circumstances about these convictions. As to the Theft Conviction, Aronowicz described what she contends are the facts underlying the 1994 conviction, but did not provide any record citation or support for that factual description, or even a hint as to where that description was obtained.[5] Fuggett objected to this unsupported narrative of the charged crime.[6] As to the Escape Conviction, Aronowicz provided neither a factual recitation nor record support for the events underlying that conviction. This Court cannot perform the balancing test required by Rule 609(b) without such a record.[7] Because Aronowicz has offered no specific facts and circumstances from which this Court could determine that the probative value of the convictions substantially outweighs the prejudicial effect of their admission into evidence, the convictions are not admissible under Rule 609(b).

         For the foregoing reasons, Fuggett's Motion in Limine to Prohibit Aronowicz from Referring to Arthur Fuggett's Theft Conviction is GRANTED and Aronowicz's Motion in Limine to Admit Evidence of Fuggett's Escape Conviction is DENIED. IT IS SO ORDERED.

         Very truly yours,

          ABIGAIL M. LEGROW Judge

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