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September 15, 1999


The opinion of the court was delivered by: Haight, Senior District Judge.


Following a jury verdict rejecting their claims, plaintiffs move for a new trial pursuant to Rule 59(a), Fed.R.Civ.P.

I. Procedural History

This action arises out of an altercation outside Yankee Stadium on April 30, 1989 between plaintiffs Alfred Ricciuti ("Alfred") and Daniel Ricciuti ("Daniel"), and defendant Harlice Watson, an off-duty New York City Corrections Officer. The incident resulted in the arrest of plaintiffs. Following the disposition of criminal charges against plaintiffs, they asserted claims under 42 U.S.C. § 1983 and state law against Watson, several police officers, and (invoking Monell principles) the City of New York.

This Court granted defendants' motion to dismiss the complaint under Rule 12(b)(6) for failure to state a claim. The Court of Appeals reversed. Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119 (1991) ("Ricciuti I"). Following discovery, this Court granted defendants' motion for summary judgment under Rule 56. The Court of Appeals affirmed in part and reversed in part. Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir. 1997) ("Ricciuti II"). Familiarity with both opinions is assumed.

Trial of the surviving claims began before a jury on April 14, 1998 and concluded on April 29, when the jury returned a completed Special Verdict form. The defendants at trial were Watson, Transit Police Officer Henry Lopez, Transit Police Lieutenant Robert L. Wheeler, and Transit Police Captain Francis O'Hare.*fn1

In summarizing the plaintiffs' claims against these four individual defendants, I will follow the order adopted for the Special Verdict submitted to the jury. Those claims were:

1. Daniel's claim against Watson for false arrest.

2. Daniel's claims against Lopez and Wheeler for failing to intercede when Watson arrested Daniel.

3. Alfred's and Daniel's claims against Wheeler for malicious prosecution.

4. Alfred's and Daniel's claims against Lopez, Wheeler, and O'Hare for violating their constitutional right to a fair trial.

5. Alfred's and Daniel's claims against Lopez, Wheeler, O'Hare, and Watson for conspiring to deprive him of their constitutional rights.

6A. Alfred's claims against Watson for assault and battery.

6B. Daniel's claim against Lopez for battery.

6C. Alfred's claim against Wheeler for libel.

These claims were set forth in the Liability section of the Special Verdict, comprising its first four pages. A copy of that section of the Special Verdict as completed by the jury appears as Appendix A to this Opinion. The jury found for the defendant or defendants concerned on each of plaintiffs' claims.

Plaintiffs timely moved for a new trial under Rule 59(a).

II. Standards for Granting or Denying a New Trial

Rule 59(a) provides: "A new trial may be granted . . . for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States."

The Second Circuit has had several recent occasions to consider the standards for granting or denying a motion for a new trial under Rule 59(a). See, e.g., DLC Management Corp. v. Town of Hyde Park, 163 F.3d 124, 133-34 (2d Cir. 1998):

  As a general matter, a motion for a new trial should
  be granted when, in the opinion of the district
  court, the jury has reached a seriously erroneous
  result or the verdict is a miscarriage of justice. A
  new trial may be granted, therefore, when the jury's
  verdict is against the weight of the evidence. . . .
  The standards governing a district court's
  consideration of a Rule 59 motion for a new trial on
  the grounds that the verdict was against the weight
  of the evidence differ in two significant ways from
  the standards governing a Rule 50 motion for judgment
  as a matter of law. Unlike judgments as a matter of
  law, a new trial may be granted even if there is
  substantial evidence supporting the jury's verdict.
  Moreover, a trial judge is free to weigh the evidence
  himself, and need not view it in the light most
  favorable to the verdict winner. A court considering
  a Rule 59 motion for a new trial must bear in mind,
  however, that the court should only grant such a
  motion when the jury's verdict is egregious.
  Accordingly, a court should rarely disturb a jury's
  evaluation of a witness's credibility. (citations and
  internal quotation marks omitted).

The cautionary note struck at the end of this discussion resonates with particular strength in the case at bar because, as we shall see, this is a quintessential "he said, he said" case, where the jury's resolution of the decisive facts necessarily depended upon their evaluation of which witnesses to believe.

The Second Circuit derives from Tennant v. Peoria & Pakin Union Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520 (1944), the principle that "[a] jury's credibility assessments are entitled to deference." United States v. Landau, 155 F.3d 93, 105 (2d Cir. 1998).*fn2 See also Metromedia Co. v. Fugazy, 983 F.2d 350, 363 (2d Cir. 1992) ("Where the resolution of issues depended on assessment of the credibility of the witnesses, it is proper for the court to refrain from setting aside the verdict and granting a new trial."); Dunlap-McCuller v. Riese Organization, 980 F.2d 153, 158 (2d Cir. 1992) (while on a motion for a new trial in an employment discrimination case the trial court may evaluate plaintiff's credibility, "we caution that the jury is empowered and capable of evaluating a witness's credibility, and this evaluation should rarely be disturbed.");*fn3 Sorlucco v. New York City Police Dept., 971 F.2d 864, 875 (2d Cir. 1992) ("The veracity of Sorlucco's statement concerning her signing of the blank form, and her knowledge (or lack thereof) of its effect on withdrawing the criminal charges against Mielko was a matter of credibility for the jury to resolve."); Wade v. Orange County Sheriff's Office, 844 F.2d 951, 955 (2d Cir. 1988) ("Since the jury was the trier of fact, its credibility assessments were entitled to deference, and the district judge properly refrained from setting aside the verdict and granting a new trial") (citing Tennant).

Where it appears that the district court failed to give the jury's credibility evaluations sufficient deference, an order granting a new trial will be reversed. Sorlucco, 971 F.2d at 875, is illustrative:

  All of the conflicting versions, if they were
  conflicting, were before the jury. The jurors heard
  both the testimony of Sorlucco on the point and that
  of Dr. Archibald, which tended to contradict it. They
  were free to settle upon which witness they believed.
  Under the circumstances, we think that the trial
  court overstepped its bounds and usurped the jury's
  function of judging credibility.

Unger argued on appeal that if the court of appeals reversed the JMOL in his favor, it should remand the case to the district court with instructions to grant a new trial. The court of appeals, choosing instead to "remand the case to the district court to determine whether Unger's motion for a new trial should be granted," 155 F.3d at 106, undertook to guide the district court on the standards it should apply, in language that I will quote at some length:

  [T]he fact that the jury's verdict was, as the
  Government contends, based in part on its evaluation
  of Unger's credibility does not preclude the district
  judge's grant of a new trial. It is inherent in the
  proposition that the district judge may weigh the
  evidence that the judge will consider the credibility
  of witnesses. . . . This is not to say that a
  district judge may freely substitute his or her
  assessment of the credibility of witnesses for that
  of the jury simply because the judge disagrees with
  the jury. A jury's credibility assessments are
  entitled to deference, and we have stated that where
  the resolution of the issues depended on assessment
  of the credibility of witnesses, it is proper for the
  court to refrain from setting aside the verdict and
  granting a new trial. However, these principles of
  deference to the jury do not override the trial
  judge's duty to see that there is no miscarriage of
  justice. If convinced that there has been a
  miscarriage of justice then it is the trial judge's
  duty to set the verdict aside.

155 F.3d at 104-05 (citations and internal quotation marks omitted). After describing Sorlucco, 971 F.2d 864, where as noted a Second Circuit panel reversed the district court's grant of a new trial, the Landau court continued:

  Sorlucco illustrates the tension that exists when
  granting a motion for a new trial between two
  conflicting principles: the parties' Seventh
  Amendment right to a trial by jury and the power of
  the district court, also necessary to our jury
  system, to set aside a seriously erroneous verdict
  based on the weight of the evidence. This tension is
  most acute where, as in this case and in Sorlucco,
  the result may turn in large part on the credibility
  of a single witness. While this makes the trial
  court's task in ruling on a new trial motion more
  difficult, it does not preclude the possibility that
  the motion may be granted. In Sorlucco, the Court
  of Appeals found that the trial judge had disagreed
  with the jury on the credibility of a key witness but
  did not explain how that difference of opinion led to
  a miscarriage of justice. We do not read Sorlucco
  to mean that a trial judge can never substitute its
  view of the evidence for that of the jury, provided
  the judge is convinced that the jury has reached a
  seriously erroneous result or that the verdict is a
  miscarriage of justice.

Id. at 105-06 (footnotes, citation and internal quotation marks omitted).

With all respect, Landau's metronomic discussion more clearly describes the tension between conflicting principles than it furnishes the criteria by which trial judges should resolve that tension. Trial judges are told that they must have faith in jurors' assessments of witnesses' credibility, but not too much faith. Such commandments might puzzle even theologians, but trial judges must make of them what they can. Trial judges are told that they must not substitute their evaluation of credibility for that of the jury, except that they must do so if a verdict based on credibility is a "miscarriage of justice," which trial judges are repeatedly cautioned they should find only very rarely*fn5 (although if the jury believed the wrong witnesses it is hard to see how their verdict could be characterized as anything else).

From this maze of conflicting principles and less than precise appellate directions, I fashion the following guidelines:

1. A trial judge should be least inclined to disturb a jury's verdict, based entirely or primarily upon witness credibility, where the conflicting accounts of the witnesses are equally plausible (or implausible), and there is no independent evidence in the trial record clearly demonstrating that, if a miscarriage of justice is to be avoided, one party's witnesses should not be believed. In those circumstances, the trial judge should accept the jury's findings, regardless of any doubts of his own in the matter.

2. Conversely, a trial judge should be most inclined to disturb a jury verdict, based entirely or primarily upon witness credibility, where one conflicting account is so inherently implausible as to tax credulity, or there is independent evidence in the trial record clearly demonstrating that to believe one party's witnesses over the other's would lead to a miscarriage of justice.

These guidelines are faithful to the core principle the Supreme Court declared in Tennant, 321 U.S. at 35, 64 S.Ct. 409, that "[i]t is the jury, not the court, which is the fact-finding body," a principle the Second Circuit has consistently applied in witness-credibility cases and in broader contexts as well. See, e.g., Bevevino v. Saydjari, 574 F.2d 676, 685 (2d Cir. 1978) (affirming denial of a new trial; "the district court was not required to grant a new trial simply because he disagreed with the jury."); Compton v. Luckenbach Overseas Corp., 425 F.2d 1130 (2d Cir. 1970). In Compton, the district judge denied defendant's motion for a new trial even though he had characterized the evidence against plaintiff as "overwhelming" and remarked that "as the trier of the fact he would have decided the case differently," 425 F.2d at 1133. Affirming, the Second Circuit said:

  The trial judge, exercising a mature judicial
  discretion, should view the verdict in the overall
  setting of the trial; consider the character of the
  evidence and the complexity or simplicity of the
  legal principles which the jury was bound to apply to
  the facts; and abstain from interfering with the
  verdict unless it is quite clear that the jury has
  reached a seriously erroneous result. The judge's
  duty is essentially to see that there is no
  miscarriage of justice. If convinced that there has
  been then it is his duty to set the verdict aside;
  otherwise not.


I will apply the principles of the cases discussed in this Part to the facts and circumstances of the case at bar.

III. The Evidence Adduced at Trial and the Jury's Responses to the Special Verdict

In this Part of the Opinion, I will discuss the plaintiffs' claims in a different order than that appearing in the Special Verdict, so that the chronology of events may be presented with maximum clarity.

The pertinent events took place, for the most part, at two locations: first, on a Bronx street in the vicinity of Yankee Stadium; and subsequently at a Transit Police district station underneath the subway station serving that area.

A. Alfred's Claims Against Watson for Assault and Battery

1. The Trial Evidence

This case began with an altercation between Alfred Ricciuti, Daniel Ricciuti, and Harlise Watson which occurred during the afternoon of April 30, 1989, on 161st Street between River and Gerard Streets in the Bronx.

The parties agree that while Alfred and Daniel Ricciuti and Watson were walking on the 161st Street sidewalk, Alfred accidentally bumped into Watson; that Alfred and Watson exchanged punches; that one of Alfred's blows broke Watson's eyeglasses and cut him under his right eye; that during the altercation Watson's service revolver fell to the ground; and that Transit Officer Henry Lopez, who did not witness these events, thereafter arrested Alfred Ricciuti on Watson's complaint.

All other pertinent details are in dispute. The trial testimony of Alfred and Daniel gave one account of the incident. Watson's testimony, corroborated in certain aspects by that of Lopez, gave a fundamentally different account. These conflicting accounts cannot be reconciled. The jury accordingly was required to choose whether to believe the Ricciutis on the one hand, or Watson on the other. If the jury believed the Ricciutis, Watson assaulted Alfred. If the jury believed Watson, he did not.

(a) The Account Given by the Ricciutis

Alfred and Daniel testified that during the afternoon of April 30, 1989 they had attended an afternoon baseball game at Yankee Stadium. Alfred is Daniel's uncle. He was 27 years old at the time of the incident in suit. Daniel was 22. The tickets had been given to the Ricciutis by a friend, and included passes into the Yankee Stadium Club, a limited access facility where refreshments may be obtained.

The Ricciutis drove to the Stadium from their homes in New Jersey. They parked their car in a nearby lot and were in their seats before the game began. They twice obtained food from Stadium vendors during the game. At the end of the game the Ricciutis went to the Stadium Club, where they each drank one beer. They testified that these were the only alcoholic beverages they consumed during the afternoon.

The Ricciutis left the Stadium and were walking away from it on 161st Street, on their way to the parking lot. They were conversing and not paying close attention to other pedestrians on the sidewalk. Suddenly and unexpectedly, Alfred collided with Watson, who was walking with his fiancee in the opposite direction. Neither Alfred nor Daniel had noticed Watson before this contact.

Watson, who was 27 years old at the time, is a relatively large man. He is taller, broader, and heavier than either Ricciuti. Alfred estimated Watson's weight as 220 pounds. Alfred testified that as he and Daniel were walking and talking, "obviously I was not looking in front of me, and I accidentally walked right into the chest of Mr. Watson," who Alfred described as "very big."*fn6 During the trial, plaintiffs' counsel had Watson and Alfred stand next to each other in front of the jury, in order to demonstrate their dramatic difference in size.

The Ricciutis testified that neither they nor Watson said anything at the moment of this accidental contact. The Ricciutis resumed walking away from the Stadium and Watson toward it (the Ricciutis did not recall that Watson was accompanied by a woman). Suddenly, Alfred testified, "Watson came back around to the front of me and stopped me from walking. He got right in my path."*fn7 Watson said to Alfred: "What are you, crazy? What are you going to do about this?"*fn8 Alfred assumed Watson was referring to the bumping. Alfred said to Watson: "I am sorry, let's just shake hands and we will go on our way,"*fn9 and held out a placatory hand. Watson slammed Alfred's hand down with his on, and repeated: "What are you going to do about that?"*fn10 Alfred again extended his hand and asked to shake hands.

At that point, according to the testimony of both Ricciutis, Watson savagely assaulted Alfred. Watson shoved Alfred back several feet and then came at him with his hand upraised to attack. Alfred, acting in self-defense, punched Watson on the right side of his face. Alfred's one swing was followed by a barrage from Watson. Watson hit Alfred about 15 times, knocked Alfred down, bent down, grabbed him by the collar, and continued to hit Alfred. At this point Watson's service revolver fell out of his shoulder holster onto the pavement. Watson picked up his gun and pointed it at Alfred, within a foot of his face. Watson put his gun away, reached down and grabbed Alfred again by the collar, hit him 15 or 20 more times, then moved several feet away, pointed his gun again at Alfred, who was still lying on the ground, and left the area.*fn11

Alfred said that Watson hit him "all over the upper part of my body, my face, my shoulders, my chest."*fn12 Watson left Alfred lying on the ground; Alfred described himself as "very dizzy, I was in a lot of pain, bleeding mainly in my mouth," having "trouble walking because of the beating I had just received."*fn13

Daniel's testimony gave an identical account of how the altercation started, and the magnitude of the beating Watson inflicted upon Alfred. After Alfred struck Watson, Watson "just unloaded with devastating blow after blow after blow," landing "15 or 20 blows" on Alfred with a closed fist; Alfred fell; Watson punched Alfred "probably another good ten times" while Alfred was on the ground; Watson's gun fell out of his jacket and Watson pointed it at Alfred; Watson put the gun away, hauled Alfred to his feet, and continued to land "devastating punches" on Alfred, "maybe another five punches before Al went down again."*fn14 After Watson left, Daniel "helped [Alfred] off the ground and walked him across the street." Alfred "was beat up very badly. He couldn't walk on his own. I basically carried him across the street. I put his arm around my head and walked him as far as I could to the bank and left him there. Just really couldn't walk. He was very dizzy."*fn15

(b) The Account Given by Watson

Watson testified that as he and his fiancee were walking on the 161st Street sidewalk toward Yankee Stadium, he noticed "two gentlemen walking backwards coming towards us and they bumped into the two of us."*fn16 Watson, with whom Alfred had collided, asked Alfred in substance "what was wrong, what was the problem." Alfred responded: "I am not scared of you, nigger, let me go."*fn17 That epithet angered Watson. Alfred then punched Watson "in the glasses, he cut my face during that period."*fn18 This was the first blow of the altercation; Watson testified that he punched Alfred "because he punched me." Alfred "continued to punch me," maybe twice more; during the entire incident, Watson hit Alfred "maybe two or three" times.*fn19 At one point Alfred fell; Watson testified it was because Alfred was drunk.

When Watson's gun fell to the ground, Alfred was on the ground. Watson testified: "The gun fell, he was on the ground, one of them said, `the nigger got a fucking gun.' He helped his buddy up and they ran."*fn20 Watson did not pursue them because "I was dazed, I was cut. I was hurt. I was in no condition to follow them up the block."*fn21 Watson and his fiancee returned to a neighborhood bakery they had visited earlier that afternoon; Watson described his purpose in doing so: "Maybe I could clean my wound, get something to use as a compress, call the police or whatever I was going to do."*fn22 Watson then observed Transit Police Officer Lopez, in uniform, walking in the area. Watson told Lopez that he had been assaulted, pointed out the Ricciutis to Lopez, and Lopez arrested Alfred Ricciuti.

Lopez's trial testimony implicitly corroborated Watson's account in one respect. While Lopez did not witness the beginning of the altercation, he testified that when Watson pointed the Ricciutis out to him, "I heard Alfred Ricciuti make a statement." According to Lopez, Alfred said: "You fucking nigger, I am going to kick your fucking ass."*fn23 When Watson identified Alfred Ricciuti as the one who had struck him, Lopez placed Alfred under arrest for assault, asked him to place his hands up against a wall, and handcuffed him. During that time, Lopez testified, Alfred was "yelling vulgarities"; Alfred's statements "were more in the form of vulgarities and racial slurs," those statements being directed "towards Harlise Watson mostly."*fn24 The racial epithets Lopez ascribed to Alfred Ricciuti are consistent with the epithets Watson testified Alfred directed toward him when their altercation began. Counsel for plaintiffs sought to cast doubt on Lopez's testimony on the point by cross-examining him by means of references to Lopez's prior deposition and the contemporaneous entries in Lopez's notebook.

The Ricciutis' trial testimony was that at no time did Alfred use any racial epithets, either when his altercation with Watson began, during Alfred's arrest by Lopez, or later in the station house to which Lopez brought him. As we will see, the hotly disputed issue of whether Alfred Ricciuti used racial epithets at various times runs like a leitmotif through this case. The resolution of that issue depended principally upon the jury's evaluation of the credibility of the several witnesses.

2. The Jury Verdict

Question 6A in the Liability section of the Special Verdict Form asked the jury if plaintiff Alfred Ricciuti had proved by a preponderance of the evidence that defendant Harlise Watson (i) assaulted him; or (ii) battered him. The jury answered "no" to both.*fn25

3. Discussion

The reader will have observed that the Ricciutis' and Watson's accounts are diametrically opposed to each other. Alfred Ricciuti acknowledges that he struck Watson, but only in self-defense, and that Watson assaulted him. Watson acknowledges that he struck Alfred, but only in self-defense, and that Alfred assaulted him.

On the subject of self-defense, I instructed the jury:

  Defendant Watson has argued that he acted in
  self-defense. To prevail on his battery and assault
  claims, plaintiff Alfred Ricciuti must show by a
  preponderance of evidence that defendant Watson's
  actions were not justified by self-defense. Defendant
  Watson acted in self-defense if, one, he was under a
  danger or apparent danger of bodily harm at the time
  of the incident and, two, he used no more force than
  necessary to reasonably protect himself from such
  danger. If you find that plaintiff Alfred Ricciuti
  has failed to show that the defendant did not, in
  fact, act in self-defense, you must find that there
  was no battery or assault of Alfred Ricciuti.

4/27 Tr. 1244-1245. To this charge no objection was taken; and it is apparent from the jury's verdict that they believed Watson's account of the altercation and rejected that of the Ricciutis. The case furnishes a classically uncomplicated example of trial jurors resolving disputed factual issues on the basis of their assessment of the credibility of witnesses.

Nonetheless, plaintiffs contend that this is one of those rare cases where the trial judge, independently weighing the evidence under Rule 59(a), should disregard the jury's evaluations of credibility and arrive at a contrary conclusion. It is said in support of that contention that there is no reason to disbelieve the Ricciutis, while Watson's account should be rejected because the record exposes him as a perjurer. After careful consideration, I disagree on both counts.

As noted, Watson was much larger (and presumably stronger) than Alfred Ricciuti. Both Alfred and Daniel testified that Watson struck Alfred between 40 and 50 times with closed fists and great force ("devastating" in Daniel's phrase), landing his blows upon Alfred's upper body and unprotected face, thereby rendering Alfred bloody, in pain, dizzy and able to stand only with assistance.

But it seems remarkable, if one credits that testimony, that Alfred was not even more seriously injured, having been subjected to so prolonged a beating at the hands of so much larger a man — a difference in size which plaintiffs' counsel dramatized by arranging a lineup in front of the jury.*fn26 If plaintiffs' description of the prolonged and violent beating Watson gave Alfred is true, it is remarkable that Alfred was not lifted off the sidewalk and taken to the nearest hospital trauma unit. In point of fact, however, following his arrest by Lopez, Alfred walked a number of blocks without assistance to the Transit Police station house underneath the 161st Street subway station.

While defendant Wheeler, the officer in charge of the Transit Police station house, summoned an emergency medical services ambulance crew to examine Alfred at 6:30 p.m. on April 30, the EMS personnel who responded found it necessary to do no more than treat Alfred "for a laceration of the right ring finger and contusion on forehead. Injuries did not require hospitalization."*fn27 That is a correct paraphrase of the Transit Police "Medical Treatment of Prisoner" form, defendants' Ex. F in evidence, which states in part: "Examination by attendant, minor edema to forehead, minor laceration to left ring finger, treated at scene. RMA" (which I take to mean "Refused Medical Assistance"). Alfred Ricciuti acknowledged that he signed that form, 4/17 Tr. 80-83, but I would not allow defendants' counsel to publish the form to the jury as a statement binding upon Alfred Ricciuti. Id. Tr. 84. However, in this Rule 59(a) context, it is appropriate to note that the form is consistent with Wheeler's report and with his testimony concerning the extent of Alfred's injuries. It is common ground that Alfred did not have to be treated at a hospital, either that evening or the following morning; in that regard he may be contrasted with Watson, who was taken to a hospital twice for treatment of the cut under his eye. During the first hospital visit, the emergency room staff placed bandages upon the cut, but when the bleeding continued, Watson had to return to the hospital where the cut was stitched closed.

What all this comes down to is a basis for concluding that Alfred and Daniel Ricciuti materially exaggerated the extent to which Watson beat Alfred. The defendants make that point in their brief on the present motion. Plaintiffs argue in their reply brief that this is a false issue because Alfred charged Watson with assaulting him in general terms, not committing an assault in any particular degree as defined by the Penal Law. But that reply misses the point. Plaintiffs' material exaggerations of Watson's striking of Alfred, if found by the jury, go to the credibility of Alfred and Daniel generally. The same would be true if the jury thought plaintiffs had minimized their alcoholic consumption. The jury was given the traditional instruction with respect to the effect they could give to a witness's false statement.*fn28 I may reflect on such considerations in performing my evaluation of the trial evidence within the context of this Rule 59(a) motion.

Plaintiffs also urges the Court on this motion to conclude that Watson, Lopez, Wheeler, and O'Hare knowingly created false reports at the time of the incident, or gave false testimony at the trial, or both. Plaintiffs' contention, in short, is that the defendants obtained verdicts in their favor by perjury. I am asked to order a new trial on that basis.

Before turning to plaintiffs' particular allegations of perjury by Watson, I will consider the burden of proof which plaintiffs must meet to sustain the charge. What follows will apply not only to the alleged perjury of Watson, but of the other defendants as well.

In United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), the Supreme Court said that a witness violates the federal criminal perjury statute, 18 U.S.C. § 1621, if a witness testifying under oath "gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." While in Dunnigan the Court applied that definition to a calculation under the United States Sentencing Guidelines, it observed that "[t]his federal definition of perjury by a witness has remained unchanged in its material respects for over a century," id., and it is the definition that I will use for the present purposes.

In criminal prosecutions for perjury, the government bears the traditional burden of proving guilt beyond a reasonable doubt. The Second Circuit rule is that in the context of a civil action, perjury must be demonstrated by clear and convincing evidence. In Barr Rubber Products Company v. Sun Rubber Company, 425 F.2d 1114 (2d Cir. 1970), a bench trial involving the validity of patents, the Second Circuit reversed as unsupported by the record the district court's finding of an intentional fabrication of evidence. The Second Circuit began its analysis by noting:

  Generally, a civil plaintiff must prove his
  affirmative case by no more than a preponderance of
  the evidence. Ordinarily this is true even where a
  criminal act is charged as part of a civil case.

425 F.2d at 1120 (citations omitted). Having said that, the court of appeals continued:

  However, there is ample authority of long standing
  that to substantiate charges of fraud or of undue
  influence, at least in actions seeking the recovery
  of monies paid or the rescission or cancellation of
  contracts, a litigant must present clear and
  convincing proof. When a person is charged with all
  the elements which constitute a heinous crime,
  although it be only on a civil issue, it shocks the
  judicial mind to refuse to give him the benefit of
  the usual presumption of innocence unless the adverse
  proofs are so far satisfactory as to be convincing. .
  . . Logic and reason demand that no lower standard of
  proof be applied in assessing a charge of perjury. .

Id. at 1120-1121 (citations, footnote, and internal quotations marks omitted).

The Second Circuit adopted the same analysis in Penthouse International, Ltd. v. Dominion Federal Savings and Loan Association, 855 F.2d 963 (2d Cir. 1988), in which it specifically reversed the district court's finding of perjury at the end of a bench trial. The court of appeals said:

  With regard to the perjury finding, we are somewhat
  surprised by its presence in the court's decision. If
  the court viewed Gorelick's testimony as incredible,
  that is its prerogative as the trier of fact in a
  non-jury case, but unless perjury is at issue in a
  case, such a finding is not necessary once the trier
  of facts

  finds the witnesses' testimony incredible. The
  perjury finding here, however, was not only
  unnecessary but also was erroneous since it was not
  based upon clear and convincing proof.

855 F.2d at 987 (citing Barr).

In ICN Pharmaceuticals, Inc. v. Khan, 2 F.3d 484 (2d Cir. 1993), reviewing the propriety of a preliminary injunction where the district court said that he found a party's testimony "incredible, false and willfully false," the Second Circuit explicitly noted

  that a finding as to willfully false testimony (as
  distinguished from an ordinary credibility
  determination in the course of resolving a disputed
  issue of fact) must be made in stated accordance with
  the "clear and convincing proof" standard.

2 F.3d at 493 (citing Penthouse and Barr).

I think that this unbroken line of Second Circuit authority in civil trials applies to the trial judge's review of the evidence in the context of a motion for a new trial under Rule 59(a). While the jury in the case at bar was instructed to resolve the factual disputes under the preponderance standard, I am asked to grant plaintiffs a new trial on the ground that police officers perjured themselves. Perjury is a "heinous crime," surely not the less so if committed by a servant of the public such as a police officer; accordingly, if plaintiffs are to obtain a new trial on the ground that a defendant committed perjury, they must demonstrate that perjury by clear and convincing proof.

To revert to the testimony of Watson with respect to his altercation with Alfred Ricciuti, plaintiffs do not make that showing.

Plaintiffs begin their analysis of Watson's alleged perjury by summarizing plaintiffs' trial testimony about the altercation. As noted, plaintiffs' account of those events differs from that of Watson, but that is insufficient to demonstrate that Watson committed perjury. See Bruneau v. South Kortright Central School, 962 F. Supp. 301, 304 (N.D.N.Y. 1997):

  Furthermore, the plaintiff does not raise any
  evidence to establish that the student witnesses did
  actually testify falsely. In fact, the only thing
  which Bruneau can rely upon to support her contention
  is that she presented an entirely different version
  of the events which allegedly occurred at the School.
  Fact finding is, of course, the classic function of a
  jury. The jurors were presented with two opposing
  viewpoints and had within their powers of perception
  and reasoning the ability to weigh the testimony and
  determine the credibility of all of the witnesses,
  including the children who testified. It would be
  improper for this Court to usurp the jury's function
  of judging credibility.

(citations and internal quotation marks omitted). See also Williams v. City of Newburgh, 830 F. Supp. 770, 774 (S.D.N Y 1993) (Freeh, J.):

  Williams has also failed to present evidence that any
  witness lied or that the evidence presented was
  tainted in any way. While defendants' witnesses
  disagreed with Williams' version of events and
  interpretation of the parties' agreement, the
  existence of that disagreement does not necessarily
  mean that any witness perjured him or herself. Absent
  some other proof of the alleged lies, this argument
  also does not provide a basis for setting aside the
  jury's verdict.

In the case at bar, plaintiffs profess to find evidence of Watson's perjury in prior statements that he made concerning the incident. Specifically, on May 1, 1989, the day after the incident, Watson appeared before an Assistant District Attorney and signed a complaint against plaintiffs. On May 8, 1989, Watson submitted a written report about the incident to his ...

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