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Picciano v. McLoughlin

October 28, 2010

RICHARD J. PICCIANO, PLAINTIFF,
v.
STEPHAN MCLOUGHLIN, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court, in this civil rights action filed by Richard J. Picciano ("Plaintiff") against City of Auburn Police Officer Stephan McLoughlin ("Defendant"), are six pretrial motions in limine submitted by Defendant (Dkt. No. 31), and two pretrial motions in limine submitted by Plaintiff (Dkt. No. 40). For the reasons set forth below, Defendant's motions are granted in part and denied in part, and Plaintiff's motions are granted in part and denied in part.

I. RELEVANT BACKGROUND

A. Plaintiff's Motions in Limine

Plaintiff has filed the following two motions in limine: (1) a motion to preclude the introduction of evidence related to an incident that occurred on February 4, 2003, involving the assault and injury of Auburn Police Officer Mark Pilipczak; and (2) a motion to preclude the introduction of evidence related to Plaintiff's seven prior criminal arrests and/or convictions. (Dkt. No. 40.)

B. Defendant's Motions in Limine

Defendant has filed the following six motions in limine: (1) a motion to preclude the introduction of evidence related to the "Metler Incident"; (2) a motion to permit Defendant to introduce evidence of Plaintiff's 2009 drug conviction for impeachment purposes; (3) a motion to permit Defendant to introduce evidence of Plaintiff's entire criminal history; (4) a motion to preclude Mary Lou Picciano from offering hearsay and/or irrelevant testimony; (5) a motion to (a) preclude Plaintiff from arguing that, pursuant to the relevant Municipal Code, Defendant simply could have seized Plaintiff's skateboard and issued him a ticket in lieu of arresting him, and (b) instruct the jury that they are not to consider the validity of Plaintiff's arrest; and (6) a motion to compel Plaintiff to provide Defendant with releases for disclosure of the trial, plea, district attorney, and department of corrections records regarding Plaintiff's 2009 drug arrest, conviction and imprisonment. (Dkt. No. 31.)

II. ANALYSIS

A. Whether Defendant May Introduce Evidence Related to Plaintiff's Prior Arrests and Convictions

In his motion in limine, Plaintiff argues that Defendant should be precluded from mentioning his prior criminal history for impeachment purposes pursuant to Fed. R. Evid. 609 because (1) his prior criminal history is not relevant to this civil rights action, (2) his prior criminal history is not probative of truthfulness and/or the prejudicial effect of introducing his criminal history substantially outweighs the probative value, and (3) only his prior alleged conviction for petit larceny involves a crime of dishonesty.*fn1

Conversely, Defendant argues in his motion in limine that evidence of Plaintiff's 2009 conviction is admissible because (1) the impeachment value of the crime is high, (2) the prior conviction is not too remote in time, (3) the conduct at issue and the conviction sought to be introduced is dissimilar, and (4) Plaintiff's credibility is key to a jury decision. In addition, Defendant argues that evidence of Plaintiff's entire prior criminal history is admissible if Plaintiff testifies about his emotional damages, and in particular his"fear" of police officers that he allegedly suffers from as a result of the incident that occurred on August 4, 2004, which is the subject of this action.

Rule 402 of the Federal Rules of Evidence provides, inter alia, that "[e]vidence which is not relevant is not admissible." Fed. R. Evid. 402. Plaintiff will inevitably testify at trial about, among other things, his injuries. Therefore, evidence that calls into question his character for truthfulness is relevant.

However, even assuming that evidence of Plaintiff's prior arrests and 2009 conviction is relevant, the Court must still determine whether such evidence is admissible under Fed. R. Evid. 403, 404(b), 608(b), and 609.

1. Plaintiff's Prior Arrests and the Stabbing Incident

Rule 403 of the Federal Rules of Evidence provides as follows:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 404(b) of the Federal Rules of Evidence provides as follows:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Finally, Rule 608(b) of the Federal Rules of Evidence provides as follows:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

As an initial matter, only Plaintiff's arrest for petit larceny involves a crime of dishonesty. Moreover, the Supreme Court has held that an "[a]rrest without more does not . . . impeach the integrity or impair the credibility of a witness." Michelson v. United States, 335 U.S. 469, 482 (1948) (holding that "[o]nly a conviction . . . may be inquired about to undermine the trustworthiness of a witness"). As a result, to the extent Defendant seeks to admit evidence of Plaintiff's prior arrests (and/or the stabbing incident) for impeachment purposes, that request is denied.

Having said that, in the event that Plaintiff testifies at trial that he suffered a "fear" of police officers, and/or lost his desire to become a police officer, as a result of the incident of August 4, 2004, which is the subject of this litigation, the Court will permit Defendant to ask Plaintiff whether he has been arrested on more than one occasion since August 4, 2004. This is because his subsequent arrests are probative of Plaintiff's claim for emotional damages, and the probative value of the testimony is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. See Ramos v. County of Suffolk, 707 F. Supp.2d 421, 424 (E.D.N.Y. 2010) (permitting defendant to question plaintiff about whether she had ever been arrested prior to and after ...


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