12.6.2 Prior Bad Acts or Convictions

Evidence of similar crimes, wrongs, or acts involving domestic abuse, family, violence, or sexual abuse, may be admitted in a civil case under La. C.E. art. 412.5, so long at its probative value outweighs unfair prejudice under La. C.E. art. 403. As a matter of law, prior bad acts or crimes against the petitioner by the defendant are a key issue that must be considered."1  The probative value of this evidence in protective order and PSFVRA cases should pass an article 403 balancing test with only rare exception because under the DAAA, the court must consider “any and all history of abuse, or threats thereof” and the abuse need not be “recent, immediate, or present.”2  And in custody determinations under La. R.S. 9:364, the court is required to make a determination about whether there is a “history of family violence. So there is no question that prior acts of abuse are relevant and therefore admissible both protective order and custody cases.”3

Abuse against a different intimate partner or acts of violence against others should fall within this rule as well, if they are probative to issues such as the victim’s fear (if the prior abuse is known to her), the possibility of the children’s exposure to future abuse, and the defendant’s dangerousness to intimate partners. Prior bad acts against other intimate partners may also be relevant to prove intent, motive, or absence of mistake.4

Although there is a general prohibition against introducing convictions more than 10 years old under La. C.E. art. 609(B), arguably, the provisions of the more specific article, La. C.E. art. 412.5, should govern domestic abuse-related convictions. Article 412.5 does not create a time limit. Moreover, the imposition of a time limit arguably conflicts with both the DAAA and PSFRVA, which require that courts examine the history of domestic abuse or family violence.

Some of the strongest evidence of prior abuse is a conviction from a criminal proceeding. Even if the defendant has been convicted, do not rely on him to admit the conviction in court, and always plan to prove it without his testimony. To easily avoid authentication challenges, present the court with a certified copy of the conviction. A certified copy will also allow the judgment to be entered under the hearsay exception.5

Prior bad acts or convictions that are not related to domestic abuse or family violence must have a nexus to an issue relevant to the case, such as the victim’s fear, the likelihood of future abuse, a parent’s fitness, or the children’s safety during visits. It can often backfire to attempt to use prior criminal records for more general purposes, such as proving general bad character. Convictions for other crimes are not admissible for purposes of attacking a witness’s credibility, unless the conviction involves dishonesty or false statement.6  If introducing the conviction for a permissible purpose other than showing a prior history of domestic violence, it must not be more than 10 years old.7

• 1See Raney v. Wren, 98-0869, pp. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93 CA 2128 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349-50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
• 2La. R.S. 46:2135(A); see also Shaw v. Young, 2015-0974 (La. App. 4 Cir. 8/17/16), 199 So. 3d 1180, 1185–86 (affirming protection order where petitioner “lived in constant fear that, because of the physical violence in the past, as soon as there was not a protective order in place, the ‘harassment will step up and it won’t be just electronic harassment.’”); Wise v. Wise, 02-574 (La. App. 5 Cir. 11/13/02), 833 So. 2d 393; Cruz-Foster v. Foster, 597 A.2d 927, 930 (D.C. 1991) (noting that abuser’s past conduct is perhaps the most important evidence of his future conduct).
• 3See Raney v. Wren, 98-0869, p. 6–8 (La. App. 1 Cir. 11/6/98), 722 So. 2d 54, 58; Michelli v. Michelli, 93-2128, pp. 11–12 (La. App. 1 Cir. 5/5/95), 655 So. 2d 1342, 1349–50. Even acts that occurred prior to a custody decree should be admissible. Raney, 722 So. 2d at 58.
• 4La. C.E. arts. 404(B), 402.
• 5La. C.E. art. 803(22).
• 6La. C.E. art. 609(A)(2).
• 7La. C.E. art. 609(B).