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finding in a prison excessive force case that evidence "regarding an unrelated assault by one of the defendants is precisely the sort evidence of other crimes, wrongs or acts that Rule 404(b) makes inadmissible."
Summary of this case from Poma-Pratt v. BrownOpinion
94 Civ. 6385 (CSH)
October 10, 2000.
MEMORANDUM OPINION AND ORDER
During a pre-trial conference held on September 28, 2000, counsel for the defendants made an oral motion to reconsider the portion of this Court's Memorandum Opinion and Order dated September 26, 2000 (the "Opinion"), familiarity with which is assumed, that barred defendants from cross-examining Giles concerning the conviction for which he is presently incarcerated: armed robbery and possession of a weapon.
In the Opinion, the Court granted plaintiffs motion to preclude the admission of any evidence, or inquiry on cross-examination, concerning his three felony convictions and the fact that he is presently incarcerated. The Court noted that the defendants did not refute plaintiffs argument that evidence concerning the convictions, or the fact that Giles is currently incarcerated, should not be admitted. Instead, citing Fed.R.Evid. 609(a)(1), they merely stated that they intended only "to cross examine plaintiff as to the fact that he is a convicted felon and the length of his sentence." Opp. at 23. The Court held, however, that defendants had not carried their burden as the proponents of this evidence to show that the fact and length of Giles' 1982 felony conviction is a proper subject for impeachment under Rule 609(a). In particular, the Court focused on the fact that defendants had not demonstrated that the probative value of thelength of the sentence (eight consecutive sentences of 15 years to life and a sentence of 10 years to life) outweighed the risk that the jury would infer from its length and his felon status that he must have committed a serious and possibly violent crime.
In their oral motion for reconsideration, the defendants explained that, contrary to the impression given by their opposition to the prior motion, they do not intend to elicit the precise length of Giles' sentence, the nature of his conviction or the facts underlying it. Instead, they request permission to impeach Giles by asking him only whether he is a convicted felon and whether the length of his sentence is greater than one year.
Now that defendants have clarified their position, I conclude that the proposed cross-examination carries far less risk of prejudicial effect than the Court was led to understand from their papers in opposition to plaintiffs motion. Fed.R.Evid. 609(a) provides that evidence that a witness has been convicted of a crime punishable by imprisonment in excess of a year "shall be admitted" subject to Rule 403 for the purpose of attacking the witness' credibility. I still believe that evidence of the surrounding facts and circumstances of Giles' conviction and length of his sentence pose a danger of unfairly prejudicing the jury against Giles for the reasons stated in the Opinion, and in any event carry little probative value. However, the simple fact that Giles is a convicted felon sentenced to more than a year in prison is precisely the kind of information Rule 609(a) embraces. Indeed, numerous courts have exercised their discretion to admit evidence of the fact that a witness has been convicted of a felony while barring evidence of the underlying details of the offense. See, e.g., Lewis v. Velez, 149 F.R.D. at 483; Daniels v. Loizzo, 986 F. Supp. at 251 (limiting cross-examination to the fact and date of the conviction); Day v. Milling, No. 95 Civ. 1704, 2000 WL 435430, *3 (D.Conn. Feb. 22, 2000) (limiting cross-examination to crime charged, the date and its disposition).
In this case, the fact that Giles is a felon is probative of his credibility in that it "removes any misperceptions that he is a model citizen." Daniela v. Loizzo, 986 F. Supp. 245, 251 (S.D.N.Y. 1997); see also Gora v. Costa, 971 F.2d 1325, 1330 (7th Cir. 1992) ("The idea underlying Rule 609, whether right or wrong, is that criminals are more likely to testify untruthfully.") (citation omitted). Moreover, there is little danger of additional prejudice resulting from the disclosure of Giles' status as a felon because the jury will already know that the altercation at issue took place while Giles was a prisoner at Sing Sing. For these reasons, I conclude that the probative value of his felony conviction outweighs its potential for unfair prejudice. Accordingly, I grant defendants' motion for reconsideration. Pursuant to Fed.R.Evid. 609(a), as they have requested, defendants may cross-examine Giles concerning the fact that he is a convicted felon sentenced to more than one year in prison.
It is SO ORDERED.