MITCHELL J. KATZ, ESQ., MENTER, RUDIN & TRIVELPIECE, P.C., Pro Bono Trial Counsel for Plaintiff Syracuse, NY,
ERIC T. SCHNEIDERMAN, CATHY Y. SHEEHAN, ESQ., Attorney General for the State of New York, Albany, NY, The Capitol, Counsel for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Currently before the Court, in this prisoner civil rights action filed pro se by Victor Altheus DePonceau ("Plaintiff") against the above three correctional employees ("Defendants"), is Plaintiff's pre-trial motion in limine, requesting an Order precluding Defendants from introducing, at trial, evidence, references and arguments relating to any of Plaintiff's prior arrests or criminal convictions. (Dkt. No. 110.) For the reasons set forth below, Plaintiff's motion is granted in part and denied in part.
I. PLAINTIFF'S MOTION
Generally, in his motion, Plaintiff asserts four arguments. (Dkt. No. 110.) First, argues Plaintiff, his prior arrests may not be inquired about to impeach his credibility; and, in any event, evidence of those prior arrests is not admissible under Fed.R.Evid. 403, because (a) that evidence's probative value is minimal in this action, which alleges excessive force and retaliation (especially given that Fed.R.Evid. 404[b] precludes the admission of such evidenceto prove the character of a person in order to show action in conformity therewith), (b) its prejudicial effect is substantial, and (c) its potential to confuse the jury is substantial. ( Id. )
Second, argues Plaintiff, upon his counsel's information and belief, Plaintiff's only prior conviction is the one resulting in his present incarceration, which (according to page 14 of Plaintiff's deposition transcript) was for what counsel describes as "conspiracy in the second degree" stemming from "charges related to activities considered to be practicing law without a license, " which were engaged in by Plaintiff in order to "assist individuals who suffered from perceived Civil Rights violations." ( Id. )
Third, argues Plaintiff, because (upon his counsel's information and belief) Plaintiff did not (in committing that offense) represent that he was an attorney, his conviction was not for a crime of dishonesty and therefore is not admissible under Fed.R.Evid. 609(a)(2). ( Id. )
Fourth and finally, argues Plaintiff, evidence of that conviction is not admissible under Fed.R.Evid. 609(a)(1)(A), because (a) that evidence's probative value is minimal (in that activities giving rise to his conviction are totally unrelated to whether he was assaulted in prison, and the jury will not need cumulative proof of the fact that Plaintiff is incarcerated), (b) its prejudicial effect is substantial, and (c) its danger of wasting time is substantial. ( Id. )
A. Plaintiff's Arrests
In his motion, Plaintiff does not specify the "arrests" to which he is referring. ( See generally Dkt. No. 110.) The only relevant arrest of which the Court is aware (i.e., one not resulting in a conviction) is Plaintiff's 2005 arrest for knowingly and unlawfully possessing ammunition while being a felon, arising from his failure to surrender that ammunition despite being ordered to do so by Monroe County Court Judge William Bristol in 1997. See United States v. DePonceau, 05-CR-6124, Warrant for Arrest (W.D.N.Y. filed Sept. 14, 2005) (indicating arrest on August 31, 2005); United States v. DePonceau, 05-CR-6124, Indictment (W.D.N.Y. filed Sept. 1, 2005) (charging Plaintiff with one count of violating 18 U.S.C. § 922[g] and 924[a]); United States v. DePonceau, 05-CR-6124, Affid. in Support of Criminal Complaint, at ¶ 7 (W.D.N.Y. filed Aug. 31, 2005) (testifying that Plaintiff had been ordered to surrender his ammunition by Judge William Bristol on September 15, 1997); United States v. DePonceau, 05-CR-06124, Order of Dismissal (W.D.N.Y. filed June 10, 2008) (dismissing Indictment without prejudice "due to the prosecution by other authorities resulting in a significant prison sentence").
The Court agrees with Plaintiff that the mere existence of an arrest-without more-is not admissible to impeach the credibility of a witness. Michelson v. United States, 335 U.S. 469, 482 (1948) ("Arrest without more does not, in law any more than in reason, impeach the integrity or impair the credibility of a witness. It happens to the innocent as well as the guilty. Only a conviction, therefore, may be inquired about to undermine the trustworthiness of a witness."). However, of course, arrests may "be inquired into [on cross-examination] if they are probative of the character [of a witness] for truthfulness or untruthfulness." Fed.R.Evid. 608(b); see, e.g., Picciano v. McLoughlin, 07-CV-0781, 2010 WL 4366999, at *2 (N.D.N.Y. Oct. 28, 2010) (Suddaby, J.) ("[I]n 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.").
As a result, defense counsel is precluded from inquiring into Plaintiff's above-described arrest on cross-examination, unless Plaintiff first provides specific testimony that renders that arrest probative of his character for truthfulness or untruthfulness (e.g., testimony that he was never arrested for anything other than the offenses giving rise to his most-recent conviction, testimony that he has never possessed ammunition, testimony that he has never disregarded a judge's order, etc.). To the extent that Plaintiff ...