Rule 609, as amended in 1990, governs the admissibility of criminal convictions for impeachment purposes in civil actions. 4 Weinstein's Federal Evidence § 609.04[a], at 609-36 (1997). Rule 609(a) authorizes the admissibility of such evidence under two circumstances. First, Rule 609(a)(1) permits the impeachment of a witness with convictions punishable by imprisonment in excess of one year subject to the balancing test of Rule 403. Fed. R. Evid. 609(a)(1).
Second, evidence that a witness has been convicted of a crime involving "dishonesty or false statement" must be admitted regardless of the severity of the punishment or any resulting prejudice. Fed. R. Evid. 609(a)(2). Because this rule is inflexible, "it was inevitable that Congress would define narrowly the words dishonesty or false statement, which, taken at their broadest, involve activities that are part of nearly all crimes." United States v. Hayes, 553 F.2d 824, 827 (2d Cir. 1977). Hence, Congress emphasized that the second scenario was meant to refer to convictions "peculiarly probative of credibility, such as those for perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully." Id.
Rule 609(b), however, erects a time limitation to the admissibility of convictions for impeachment purposes. Criminal convictions more than ten years old
are not admissible for impeachment unless the court determines that, in the interest of justice, the probative value of the conviction substantially outweighs its prejudicial effect. Fed. R. Evid. 609(b). Trial courts in the Second Circuit must make an "on-the-record determination supported by specific facts and circumstances that the probative value of the evidence substantially outweighs its prejudicial effect" before admitting a conviction under Rule 609(b). United States v. Mahler, 579 F.2d 730, 736 (2d Cir. 1978).
A. Plaintiff's Misdemeanor Convictions
Plaintiff's misdemeanor convictions for unauthorized use of a vehicle (1980), possession of stolen property (1980), disorderly conduct (1986, 1987), resisting arrest (1987), and escape in the third degree (1987) were not punishable by death or imprisonment in excess of one year. Thus, these convictions are not admissible for impeachment purposes under Rule 609(a)(1). See Kelly v. Fisher, 1987 U.S. Dist. LEXIS 7947, No. 86 Civ. 1691, 1987 WL 16593, at *1 (S.D.N.Y. Sept. 2, 1987) (Lowe, J.) (holding misdemeanor convictions for assault and resisting arrest inadmissible under Rule 609(a)(1)).
These convictions are also inadmissible under Rule 609(a)(2) as crimes involving dishonesty or false statement. Rule 609(a)(2) is "restricted to convictions that bear directly on the likelihood that the defendant will testify truthfully (and not merely on whether he has a propensity to commit crimes) . . . . [and thus] crimes of force such as armed robbery or assault, or crimes of stealth, such as burglary or petit larceny . . . do not come within this clause." Hayes, 553 F.2d at 827. Accordingly, the misdemeanor convictions for unauthorized use of a vehicle, possession of stolen property, disorderly conduct, resisting arrest, and escape are inadmissible under Rule 609 and may not be used to impeach Plaintiff.
B. 1994 Conviction for Conspiracy to Distribute Drugs
Defendants argue that the 1994 drug conspiracy conviction falls within Rule 609(a)(2) as a crime of dishonesty or false statement. Defs.' Mem. of Law at 6. Drug crimes, however, do not automatically implicate the use of dishonesty or false statements. Lewis v. Velez, 149 F.R.D. 474, 481 (S.D.N.Y. 1993); see also 4 Weinstein's Federal Evidence § 609.03[b][iii], at 609-16 (1997) ("Convictions for narcotic offenses are usually not considered to involve dishonesty or false statement."). Where, as here, the crime falls within the "uncertain middle category neither clearly covered nor clearly excluded by . . . [Rule 609(a)(2)]," the proffering party must demonstrate "that [the] particular prior conviction rested on facts warranting the dishonesty or false statement description." Hayes, 553 F.2d at 827 (barring admission of narcotics importation conviction under Rule 609(a)(2) because government failed to present specific facts that crime involved dishonesty or false statement); see also United States v. Hastings, 577 F.2d 38, 41 (8th Cir. 1978) (finding narcotics conviction inadmissible under Rule 609(a)(2) absent showing that conviction rested on facts involving dishonesty or false statement). In this case, Defendants offer no evidence to suggest that the 1994 Conviction involved dishonesty or false statement. Thus, the 1994 Conviction is not automatically admissible under Rule 609(a)(2).
Nonetheless, the 1994 Conviction may be admissible under Rule 609(a)(1) because it was punishable by "imprisonment in excess of one year." This conviction is therefore subject to the Rule 403 balancing test imposed by Rule 609(a)(1).
In balancing probative value against prejudicial effect under this rule, courts examine the following factors: (1) the impeachment value of the prior crime, (2) the remoteness of the prior conviction, (3) the similarity between the past crime and the conduct at issue, and (4) the importance of the credibility of the witness. See 4 Weinstein's Federal Evidence § 609.04[a], at 609-20 (1997); Hayes, 553 F.2d 824 at 828.
The first criteria, the impeachment value of the conviction, supports the introduction of the evidence. The drug conspiracy conviction ranks relatively high on the scale of veracity-related crimes, see Hayes, 553 F.2d at 828 (finding conviction for drug smuggling admissible under Rule 609(a)(1) because crime was probative of accused's veracity); United States v. Ortiz, 553 F.2d 782, 784 (2d Cir. 1977) (finding heroin sales conviction probative of accused's veracity); United States v. Feola, 651 F. Supp. 1068, 1126-27 (S.D.N.Y. 1987) (finding narcotics conspiracy conviction probative of accused's veracity), although not so high as to fall clearly within Rule 609(a)(2). In addition, the drug conviction bears on Plaintiff's credibility since it removes any misperceptions that he is a model citizen. See, e.g., Young v. Calhoun, 1995 U.S. Dist. LEXIS 4555, No. 85 Civ. 7584, 1995 WL 169020, at *4 (S.D.N.Y. April 10, 1995).
The second criteria, that of time, does not preclude the introduction of the evidence. The age of the conviction -- three years -- is not so remote as to diminish its probative value. See United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968) (upholding use of 1929, 1937, 1946, 1945, and 1956 convictions for impeachment purposes in trial held in 1967).
The third criteria, the dissimilarity of the conduct at issue and the conviction, weighs in favor of introducing the evidence. The 1994 drug conviction bears no resemblance to the excessive force alleged in this case. See Lewis, 149 F.R.D. at 482 (finding drug conviction admissible as impeachment evidence in civil rights action because excessive force allegations were not similar to prior conviction).
The fourth criteria, that of the credibility of the witness, also militates in favor of introducing the conviction. Plaintiff and the Officer Defendants will testify to radically divergent versions of what occurred on July 6, 1987. Faced with these conflicting stories, the jury's central task will be to determine who is telling the truth. Plaintiff's credibility on the stand is therefore of decisive importance. See, e.g., Cummings v. Malone, 995 F.2d 817, 825 (8th Cir. 1993) (finding credibility of plaintiff "paramount" to defense in excessive force case); Sango v. City of New York, 1989 U.S. Dist. LEXIS 18212, No. 83 Civ. 5177, 1989 WL 86995, at *18 (E.D.N.Y. July 25, 1989) (McLaughlin, J.) (same).
Revealing the details of Plaintiff's drug conviction, however, might risk creating unfair prejudice in the minds of the jurors. See Davenport v. DeRobertis, 1986 U.S. Dist. LEXIS 27332, No. 83 Civ. 4392, 1986 WL 4157, at *3 (N.D. Ill. April 1, 1986) (explaining that admission of prior conviction for impeachment purposes in civil rights case was "likely to cause prejudice to plaintiffs since jurors might be unwilling to award damages once they have focused on the specific serious crimes which resulted in [their] incarceration."). The Court will offset that danger by limiting Defendants' use of the conviction to the fact and date of the conviction. See Cummings, 995 F.2d at 825 (limiting cross-examination of plaintiff for impeachment purposes in civil rights action to name, date, and disposition of prior convictions). Accordingly, after balancing these factors, the Court finds that the probative value of the 1994 Conviction is not substantially outweighed by the danger of unfair prejudice so as to preclude its admission.
C. 1988 and 1992 Convictions for Assault and Attempted Assault on a Police Officer
Defendants contend that the 1988 and 1992 assault convictions fall within the purview of Rule 609(a)(2). Defs.' Mem. of Law at 6. The Second Circuit, however, has made clear that assault convictions do not involve dishonesty or false statements. See, e.g., Hayes, 553 F.2d at 824. Accordingly, the 1988 and 1992 assault convictions are not automatically admissible under Rule 609(a)(2).
The felony assault convictions are also inadmissible under Rule 609(a)(1) because they closely resemble the conduct alleged in this excessive force lawsuit. In criminal trials, evidence of past crimes are excluded when the convictions are for the same type of offense as the pending charge because they cause unfair prejudice by suggesting that the party has a propensity to commit such acts. See Lewis, 149 F.R.D. at 482. The same concerns of prejudice are implicated where a defendant introduces a plaintiff's assault conviction in a Section 1983 excessive force case because the jury may improperly infer that, based on the prior conviction, the plaintiff instigated the incident. See id. (barring admission of assault convictions under Rule 609(a)(1) in excessive force case due to risk that jury would view conviction as evidence of plaintiff's propensity to instigate incident). As Judge Newman observed in United States v. Washington, 746 F.2d 104, 106-07 (2d Cir. 1984) (Newman, J., concurring), there is:
no justification and considerable danger in impeaching a defendant's credibility with a prior conviction for the same type of offense as the one on trial when the prosecutor already has available for impeachment another conviction for a different type of offense . . . . Once credibility is impeached by a prior felony conviction, the incremental probative force of a second conviction is minimal. Yet the prejudicial effect is substantial when the second conviction is for the same type of offense as the pending charge. We expect a great deal of juries when we instruct them to consider any conviction only for impeachment of credibility and not as evidence of a propensity to commit crime. However dubious our faith in the jury's ability to make that distinction in most cases, there is really no excuse for pushing the matter to the breaking point by admitting a prior conviction for the same type of offense being tried once credibility has already been adequately impeached by another conviction.