The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Pending before the court are cross-motions in limine and a joint request to amend the case's caption. For the following reasons, the defendants' motion is GRANTED in part and DENIED in part, the plaintiff's motion is GRANTED in part and DENIED in part, and the parties' application to amend the caption is GRANTED.
On March 26, 2012, the plaintiff in this civil rights case, Nico Wisdom, filed a motion in-limine seeking to preclude the defendants from introducing evidence of the state-court conviction of a third-party, Christopher Mason. (See Mem. of Law in Supp. of Pl.'s 1st Mot. in-Limine (Docket Entry # 26) at 1-3.) He also sought an order barring any defense witness from vouching for the credibility of the defendants. (See id. at 3.) Wisdom supplemented his motion on May 25, 2012, adding requests that the court preclude introduction of Mason's criminal court file and bar any evidence relating to Wisdom's prior arrests. (See Mem of Law in Supp. of Pl.'s 2d Mot. in-Limine (Docket Entry # 42-1) at 1-5.) On July 9, 2012, the defendants filed a motion in limine seeking, inter alia, to exclude Wisdom from the court room during one of the defendants' testimony (see Defs.' 1st Mot. in-Limine (Docket Entry # 45) at 1-3), and, on July 19, 2012, they expanded the scope of their motion to include requests that court preclude Wisdom from introducing: (1) evidence of the disposition of the criminal charge brought against Wisdom following his arrest; (2) the defendants' answers to Wisdom's interrogatories; (3) Wisdom's "VSA Superform" and "LAPS Cover Sheet"; (4) the police property clerk's invoice; and (4) the "Complaint Room Screening Report." (Mem. of Law in Supp. of Defs.' 2d Mot. inLimine (Docket Entry # 48) at 1-6.) The defendants also finally lodged an opposition to Wisdom's pending motion in limine insofar as Wisdom sought to preclude the introduction of evidence of his prior arrest records, or of Mason's prosecution and conviction. (See id. at 6-9.) Finally, by way of the defendants' second in limine submission, the parties jointly requested that the court amend the caption of the case to reflect the current parties. These requests are addressed in the order they were submitted.
First, that portion of Wisdom's motion that seeks to fully preclude evidence and testimony about Mason's conviction is denied.
Proof of Mason's conviction is relevant to the issue of probable cause-an issue that lies at the core of Wisdom's false arrest claim.*fn2 See Singer v. Fulton County Sheriff, 63 F.3d 110, 118-19 (2d Cir. 1995). According to defendants, Mason was arrested "along with" Wisdom as the two men stood near each other on the same street corner. (See Mem. of Law in Supp. of Defs.' 2d Mot. in Limine at 8.) They claim that they arrested Wisdom because he acted as a "look out" while Mason sold drugs to an undercover police officer. (See id.) Wisdom does not deny that he was arrested at the same time and place as Mason. Evidence that Mason actually committed a crime prior to the dual arrests makes it more likely that there was probable cause to arrest Wisdom for participating in that crime than if there was no evidence any crime occurred.
Cf. Fed. R. Evid. 401 (defining relevance).
That evidence of Mason's conviction is relevant, however, does mean that any and all such evidence is admissible. This evidence carries with it a significant risk of unfair prejudice. While the jury may quite properly regard such evidence of Mason's guilt as increasing the likelihood that there was probable cause to arrest Wisdom for committing his own separate offense, the jury might also view the evidence as inculpating Wisdom in Mason's crime. This is an improper inference that must be policed. Accordingly, the jury will hear only the minimum evidence needed to understand that Mason was arrested with Wisdom, and that Mason was then convicted;*fn3 the probative value of anything more is outweighed its prejudicial risk. Cf. Fed. R. Evid. 403 (setting grounds for exclusion of relevant evidence).
As to Wisdom's request that certain potential defense witnesses be precluded from vouching for the defendants' credibility or testifying in the form of legal conclusions, that portion of his motion is granted. It is unopposed, and correct as a matter of law. See Cameron v. City of New York, 598 F.3d 50, 54 (2d Cir. 2010) (noting that "bedrock principles of evidence law" prohibit this type of testimony).
Finally, Wisdom's request to preclude evidence of his prior arrests is denied. The parties agree that such evidence is relevant to the issue of damages (see Mem of Law in Supp. of Pl.'s 2d Mot. in-Limine at 5; Mem. of Law in Supp. of Defs.' 2d Mot. in Limine at 7), and cases in this circuit support that argument, see Cicero v. City of New York, No. 11-CV-0360 (NGG) (CLP), 2011 WL 30998998, at *3 (E.D.N.Y. July 25, 2011) (citing cases). Wisdom is correct, however, that evidence of his prior arrests is not relevant to the issue of the defendants' liability, and would be unfairly prejudicial to him if introduced during that phase of the trial. Given that one of the central issues at trial will be whether there was probable cause to arrest Wisdom, evidence of Wisdom's prior run-ins with the law could profoundly influence the jury's evaluation of testimony about Wisdom's conduct leading up to the arrest in question. The jury could conclude that the fact that there was probable cause to arrest Wisdom in the past makes it more likely, on the margin, that the defendants had probable cause to effect the arrest underlying this suit. This is a natural, yet impermissible inference. Cf. Fed. R. Evid. 404 (evidence of character not admissible to show conformity therewith). Accordingly, "to avoid prejudice," the trial will be bifurcated into two phases: one addressing the defendants' liability; and a second to assess damages should Wisdom establish the defendants' liability. Cf. Fed. R. Civ. P. 42(b) (providing grounds for bifurcation).
The court now turns to the defendants' motion in limine.
The defendants' first submission concerns various measures intended to protect the secrecy of Undercover Police Officer # C0127's identity. Undercover Police Officer # C0127 is a defendant in this case, but the defendants argue that his normal participation in a public trial would risk exposing his true identity. Accordingly, the defendants request that court allow Undercover Police Officer # C0127 to observe the proceedings via closed circuit television, and that it make special provisions for his entrance and exit to and from the courthouse. The defendants also argue that the courtroom should be closed to the public during Undercover Police Officer # C0127's testimony, and that even Wisdom should be excluded. Wisdom agrees to the courtroom closure, but opposes the defendants' suggestion that he be made to leave as well.
Wisdom may remain in the courtroom during Undercover Police Officer # C0127's testimony. Although the defendants provide authority for the circumscription of pre-trial discovery in order to protect the identity of undercover officers or confidential informants, they are unable to point to any case where a litigant has been excluded from his own trial for that purpose. This is not the case to begin such a practice. First, the court is not convinced that ordering Wisdom from the courtroom would substantially affect Undercover Police Officer # C0127's cover. The defendants allege that Wisdom was standing next to Mason when Mason sold Undercover Police Officer # C0127 drugs. (See Mem. of Law in Supp. of Defs.' 2d Mot. in Limine at 8.) As the two men were arrested together a short time later (see id.), it is likely that Wisdom can already recognize Undercover Police Officer # C0127 as a member of the police force. The court is also unpersuaded by the defendants' argument that allowing Wisdom's lawyer to see Undercover Police Officer # C0127's face presents less risk to the Undercover Police Officer # C0127's cover than if Wisdom sees him as well.*fn4 Without more facts about where Wisdom and his counsel live in relation to Undercover Police Officer # C0127's beat, the court cannot assume that there is a significant difference in risk. Second, Wisdom's exclusion would be prejudicial to the prosecution of his case. Wisdom knows the circumstances surrounding his arrest better than his counsel, and he will suffer if denied an opportunity to observe and, if need be, guide the examination and cross-examination of witnesses about that event.
Subject to further briefing by the defendants, the courtroom will also remain open to the public during Undercover Police Officer # C0127's testimony. The public has a First Amendment right to attend civil proceedings. See Westmoreland v. CBS, Inc., 752 F.2d 16, 23 (2d Cir. 1984). While this right is qualified, see Hartford Courant Co. v. Pellegrino, 380 F.3d ...