At no point during those proceedings did Ragan act on
behalf of any law enforcement officers. It is also clear that
Ragan is not and never has been an agent for the defendants, nor
has he ever been given authority to speak on defendants' behalf.
Furthermore, plaintiff fails to present any evidence indicating
that any of the defendants manifested an adoption or shared a
belief in the statement Ragan delivered at plaintiff's criminal
trial. Defendants' arrest of the plaintiff on the evening of
November 22, 1993, demonstrates the opposite. As such, no
relationship exists between the declarant and defendants for the
purpose of Rule 801(d)(2) of the Federal Rules of Evidence.*fn1
B. Judge McCarthy's Order
Plaintiff also seeks to introduce Erie County Judge Joseph P.
McCarthy's order ("the Order") declaring that the search and
seizure of plaintiff was "[u]nlawful and in violation of [her]
constitutional rights. . . ." Item 56, Exh. C. The problem with
admitting the Order is that Judge McCarthy never indicated
whether his decision to dismiss plaintiff's criminal case was
based on State law, Federal law, or both. The Order merely states
the dismissal was based upon William Ragan's statement that the
search was illegal.
New York Search and Seizure Law provides greater protection to
criminal defendants than the Fourth Amendment. See People v.
Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992).
Conduct that is unlawful under the New York State Constitution is
not necessarily unlawful under the Fourth Amendment. Thus, it is
possible that Judge McCarthy dismissed plaintiff's criminal
indictment because of State, not Federal, violations. If this is
in fact true, the Order is irrelevant to the present action.
Given the ambiguity of the Order, its prejudicial value far
outweighs its probativeness. It would be extremely unfair and
highly prejudicial to defendants to allow the Order into
evidence, as the jury could easily misconstrue the value and
meaning of Judge McCarthy's Order as it relates to the
determination that the jury will have to make. As written, the
prior decision would only serve to confuse rather than clarify
for the jury whether defendants violated plaintiff's
Accordingly, plaintiff may elicit information as to the outcome
of her November 20, 1993, arrest, but Judge McCarthy's Order
cannot be submitted into evidence or read to the jury.
C. Evidence Regarding Defendants' Warrantless Entry into the
Plaintiff seeks to introduce the fact that defendants entered
the first floor apartment without a warrant as evidence that
defendants had a disregard for the law or harbored bad intentions
on the evening of November 20, 1993. Defendants contend that the
warrantless entry into the
first floor apartment is irrelevant to the present case; and even
if it was relevant, any introduction of that evidence is more
prejudicial than probative, and thus should be excluded.
Evidence is relevant and thus admissible if it has a "tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." Fed.R. Evid. 401. However,
even relevant evidence can be excluded if its probative value is
outweighed by the prejudice that the evidence would cause to the
opposing party. Fed.R.Evid. 403.
The issue in this case is whether plaintiff was subjected to a
strip search; and, if so, whether the strip search violated
plaintiff's Constitutional rights. As such, the fact that
defendants entered the first floor apartment without a warrant is
relevant only if the entry makes it more or less probable that
defendants conducted an unconstitutional strip search of the
Plaintiff argues that defendants' warrantless entry
demonstrates that they were in a lawless state of mind when they
arrested the plaintiff. This argument, however, is flawed. It is
well established that warrantless searches, although discouraged,
are not unlawful per se. Defendants could have believed that they
had a right to enter the apartment due to exigent circumstances.
Coolidge v. New Hampshire, 403 U.S. 443, 445, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971); see also United States v. Brown,
52 F.3d 415, 421 (2d Cir. 1995). Thus, it is questionable as to whether
defendants' entry into the first floor apartment was unlawful.
In any event, the court agrees with defendants that the
admittance of their warrantless entry is more prejudicial to
their case than probative to the plaintiffs. Admitting evidence
that defendants entered the first floor apartment without a
warrant could confuse the jury into thinking that the entry into
the apartment was necessarily unlawful; and that, consequently,
the search of the plaintiff was unlawful. As discussed above,
warrantless searches, although discouraged, are not unlawful per
se. Accordingly, the potentially prejudicial nature of the
warrantless entry requires it to be precluded.
D. The Testimony of Dr. Seyfried
The issue here is whether Dr. Seyfried, as a treating
physician, should be allowed to testify to the status and cause
of plaintiff's mental health. Defendants contend that plaintiff
cannot offer opinion testimony without first being qualified as
an expert witness. Plaintiff asserts that because Dr. Seyfried
will not provide opinion evidence regarding liability, there is
no need to disclose her as an "expert" pursuant to Rule
26(a)(2)(B) of the Federal Rules of Civil Procedure.
Treating physicians testifying to their personal consultation
with a patient are not considered expert witnesses pursuant to
Fed.R.Civ.P. 26(b)(4)(C). Mangla v. Univ. of Rochester, 168
F.R.D. 137 (W.D.N.Y. 1996); see also Baker v. Taco Bell Corp.,
163 F.R.D. 348 (D.Colo. 1995) (holding that two doctors who
treated an accident victim were ordinary witnesses testifying as
to their personal treatment of the patient); Salas v. United
States, 165 F.R.D. 31 (W.D.N.Y. 1995) (holding that five doctors
called to testify regarding their treatment and "opinion[s] with
respect to the injuries or illnesses sustained as they causally
relate to this incident and his/her opinion as to permanency"
were not subject to the more extensive expert-witness
requirements of Fed.R.Civ.P. 26(a)(2)(B)). Experts are retained
for purposes of trial, and their opinions are based on knowledge
acquired or developed in anticipation of litigation or for trial.
A treating physician's testimony, however, is based on the
physician's personal knowledge of the examination, diagnosis, and
treatment of a patient, and not on information acquired from
outside sources. Mangla, 168 F.R.D. at 138 (citing Baker, 163
F.R.D. at 349). As the court observed in Baker, merely because
may be asked at a deposition to offer opinions based on their
examination of a patient, that
does not mean that treating physicians do not have an
opinion as to the cause of an injury based upon their
examination of the patient or to the degree of injury
in the future. These opinions are a necessary part of
the treatment of the patient. Such opinions do not
make the treating physicians experts. . . .
Id. at 349.
Based on this analysis, plaintiff may call Dr. Seyfried to
testify as to her treatment of plaintiff, and Dr. Seyfried can
offer her opinion as to what caused plaintiff's mental problems
as long as her opinion is based solely on her treatment of the
E. Criminal Convictions of the Plaintiff and Witnesses
Plaintiff asks the court to bar defendants from introducing
evidence or making inquiries as to her criminal history and/or
the criminal history of her witnesses. She argues that the
information is irrelevant and, in the alternative, more
prejudicial than probative. Defendants contend that the deciding
factor in this case rests on the credibility of the witnesses,
and as such, the finder of fact is entitled to information which
provides "a full picture of each witness." Additionally,
defendants contend that any prejudice to plaintiff or her witness
is outweighed by the probative value that the criminal records
It is well established that plaintiff's criminal history and
the criminal history of her witnesses are irrelevant to the main
issue in this case (i.e., whether defendants performed an
unconstitutional strip search) and thus cannot be introduced as
part of defendants' argument in chief. However, once the
plaintiff or her witnesses take the stand, certain portions of
their criminal records can be used for impeachment purposes on
cross-examination pursuant to Rule 609 of the Federal Rules of
Rule 609 governs the admissibility of criminal convictions for
impeachment purposes in civil actions. 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 Rule 403. 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).
1. Plaintiff's Convictions of Criminal Impersonation
Clearly, under Rule 609(a)(2), plaintiff may be questioned
regarding her June 1983 and December 1985 arrests and convictions
for Criminal Impersonation in the Second Degree (N.Y. Penal Law §
190.25), as those crimes bear directly upon her honesty as a
2. Convictions Involving the Sale or Possession of a
In 1994, plaintiff was convicted of Criminal Sale of a
Controlled Substance (N.Y. Penal Law § 220.39) a Class "B" felony
under New York State Law. Also, in 1994 Gloria Bernard, one of
plaintiff's witnesses, was convicted of Criminal Possession of a
Controlled Substance. Another of plaintiff's witnesses, Rudolf
Bernard, was also convicted of Criminal Possession of Controlled
Substance in 1993. These convictions are all felony convictions
and have been confirmed as such. As indicated above, evidence of
a crime that does not involve dishonesty or false statements may
be admitted to impeach a witness in a criminal or civil action if
the crime was punishable by death or imprisonment in excess of
one year and the court determines that the probative value of
admitting the evidence outweighs its prejudicial value.
Fed.R.Evid. 609(a)(1); see also, Fed. R.Evid. 403; Daniels v.
226 F. Supp. 245, 250 n. 7 (S.D.N.Y. 1997) (explaining that the
balancing test of Rule 609(a)(1) applies to both criminal and
Courts have often identified four factors that should be
considered in balancing probative against prejudicial effect: (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); see also Daniels, 986 F. Supp.
The impeachment value of plaintiff's prior crime (i.e., Sale
of a Controlled Substance) and the crimes of her witnesses rank
high on the scale of veracity-related crimes, see United States
v. Hayes, 553 F.2d 824, 828 (2d Cir. 1977) (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
and the credibility of her witnesses because the convictions
remove any misperceptions that they are model citizens. See
Daniels, 986 F. Supp. at 250 (citing Young v. Calhoun, No. 85
Civ. 7584, 1995 WL 169020, at *4 (S.D.N.Y. April 10, 1995)).
The convictions are also rather recent and therefore should not
be precluded for remoteness reasons. All of the convictions at
issue occurred in 1994 or 1993. As such, they are not so remote
as to diminish the probative value. See Daniels, 986 F. Supp. at
250. The nature of the felony convictions at issue further
supports defendants' requests to cross-examine plaintiff and her
witnesses on their respective criminal histories. The current
action involves a civil rights claim; and as such, the jury will
not determine whether plaintiff or her witnesses committed
additional crimes or harbor criminal tendencies. Courts have
allowed witnesses to be cross-examined on past crimes where the
conviction at issue bears no resemblance to the current action.
See Daniels, 986 F. Supp. at 250; see also Lewis v. Velez, 149
F.R.D. 474, 481 (S.D.N.Y. 1993).
The fourth and final criteria further support a decision to
subject plaintiff and her witnesses to cross-examination on their
drug convictions. The narration of events by plaintiff and her
witnesses are radically different with that of the defendants. As
such, this case will rest on which side the jury finds most
credible. Essentially, the jury's main task will be to determine
who is telling the truth. Plaintiff's credibility on the stand
and the credibility of her witnesses' are therefore matters of
great importance and outweigh any prejudice that may result.
Accordingly, defendants may cross-examine plaintiff and her
witnesses as to their past convictions of drug-related crimes.
However, defendants may not cross-examine plaintiff's
reincarceration following her participation in a work-release
program, as that matter does not have the same probative value.
As such, that information is not admissible under Rules 403 and
609(b) of the Federal Rules of Evidence.
As to defendants' request to question plaintiff regarding her
deposition statement that she had never been arrested by any of
the defendants prior to 1994, Item 53, Exh. A, pp. 105-06, there
is no reason why defendants should be precluded from questioning
plaintiff as to a factual discrepancy in her deposition
testimony. Defendants may also question plaintiff about her state
of mind at the time of the incident.
F. Admissibility of Plaintiff's Use of Aliases and Social
Although the Second Circuit has not specifically addressed this
courts in the circuit, specifically the Southern District of New
York, have allowed plaintiffs to be cross-examined on their uses
of false names and phony Social Security numbers under
Fed.R.Evid. 608(b). See Fletcher v. City of New York, 1999 WL
428412 (S.D.N.Y.); see also Young v. C.O. Calhoun, 1995 WL
169020 (S.D.N.Y.). Both cases cite with approval the language of
the Ninth Circuit in Lyda v. United States, 321 F.2d 788, 793
(9th Cir. 1963):
The issue is whether the use of false names bears
directly enough upon the witness' veracity as to
outweigh the general prohibition against
cross-examining about particular acts of misconduct
other than convictions of a crime. We think it does.
If a man lie about his own name, might he not tell
The Eighth Circuit made a similar ruling in United States v.
Ojeda, 23 F.3d 1473, 1477 (8th Cir. 1994). Based on these cases,
defendants are entitled to cross-examine plaintiff as to her use
of aliases and false Social Security numbers.
G. Testimony of Clydell Rivers
At the oral argument held on August 30, 1999, plaintiff
indicated that because she could not locate Mr. Rivers, it is
unlikely that she will call him as a witness. The City of Buffalo
has subpoenaed Mr. Rivers several times in this past year, but
Mr. Rivers has failed to appear for questioning. In the event
that Mr. Rivers is suddenly located, defendants wish to question
him before he takes the stand on plaintiff's behalf.
Given that neither party is able to locate Mr. Rivers, his
potential appearance or testimony is, for the moment, purely
speculative. As such, the court defers its decision on this issue
until such time that Mr. Rivers is in court and ready to take the
stand as a witness.
H. Plaintiff's Criminal History and Drug Abuse
Defendants request permission to introduce at trial a theory
that suggests that whatever mental anguish plaintiff suffers
from, it is most likely related to her history as a criminal,
drug user, and prostitute. More specifically, defendants argue
that history of self-inflicted abuse is much more likely the
cause of plaintiff's mental anguish than a search incident which
lasted no more than a few minutes. Defendants want the jury to be
aware of the lifestyle that the plaintiff has chosen when
deciding what damages actually resulted from the search incident.
Defendants assert that plaintiff's history of such activity is
admissible on the issue of damages under Rule 404(b) of the
Federal Rules of Evidence.*fn3 Moreover, they further argue that
the list of exceptions under Rule 404(b) is not exhaustive, but
rather was intended to encompass this situation in which the
issue of damages is in controversy.
The court finds defendants' interpretation of Rule 404(b)
overly expansive. Through cross-examination, the jury will most
likely be made aware of the plaintiff's past so that they may
properly decide on what damages, if any, should be awarded to
plaintiff. Without case law establishing the opposite, the
defendants' pre-contrived theories are prejudicial and
inappropriate. The cause of plaintiff's emotional distress is a
question of fact for the jury.