Convictions over 10 years old are “intended” to be “admitted very rarely and only in exceptional circumstances.” Fed. R. Evid. 609 Advisory Committee Notes; see Daniels v. Loizzo, 986 F. Supp. 245, 252 (S.D.N.Y. 1997) (“The Second Circuit has recognized that Congress intended that convictions more than ten years old be admitted ‘very rarely and only in exceptional circumstances.”).

FRE 609(a)(2) encompasses crimes of dishonesty or false statement, namely crimes which fall within the category of crimen falsi, and the Advisory Committee Notes to the 1990 Amendment of FRE 609(a)(2) make clear that Congress intended crimen falsi to refer to crimes such as “perjury, subordination of perjury, false statement, criminal fraud, embezzlement or false pretense…or any other offense the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.” Fed. R. Evid. 609 advisory committee’s note. Crimes in this category are “peculiarly probative of credibility and, under this rule, are always to be admitted.”

Convictions for felonies or crimes requiring proof of an act of dishonesty or false statement by the witness, that are not more than 10 years old, may be admissible for impeachment only, if relevant to the subject matter of the litigation. FRE 609, 403. Because Decedent is no longer living and thus cannot be called as a witness, there will be no basis to offer evidence of prior crimes, convictions or arrests for purposes of impeachment.

Fed. R. Evid. 609(b). Notwithstanding the strict test for admissibility under Fed. R. Evid. 609(b), evidence of Defendant Degel’s criminal conviction for credit card fraud should be admissible as its extremely high probative value substantially outweighs its prejudicial effect. Case 1:08-cv-07813-DAB Document 202 Filed 07/03/12 Page 4 of 10 4 It is well established that convictions for crimes involving fraud, even if they are more than ten years old, are admissible “when the conviction is in the nature of crimen falsi and the credibility of the witness is of great import to the issues of the case.”

Reference to such interactions a witness has had with police officers (or a suggestion of multiple such interactions with police officers) would only be offered to suggest that a witness is a criminal or a troublemaker – which is the type of character evidence that FRE 404 prohibits. Therefore, pursuant to FRE 403, FRE 404 and FRE 609, the Defendants should be barred from referencing the above-listed matters. 9 Motion in limine #9 to Bar Reference to Marijuana being Found on Tommy Morris’ Person after the Shooting and Reference to Tommy Morris’ Past Drug or Alcohol Abuse/Treatment.

Crimes meet this definition only if they “bear directly on the likelihood that the defendant will testify truthfully.” United States v. Hayes, 553 F. 2d 824, 827 (2d Cir. 1977) (emphasis added); see also Fed. R. Evid. 609(a)(2) (mandating admission of convictions involving dishonesty only if “the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement”). Case 1:12-cv-02274-SAS-HBP Document 47 Filed 10/01/12 Page 10 of 16 8 Given that no plaintiff or witness has been convicted of any such crime, no criminal conviction is admissible for impeachment purposes.

This is obviously a crime involving “a dishonest act or false statement.” Fed. R. Evid. 609(a)(2); see, e.g., United States v. Payton, 159 F.3d 49, 57 (2d Cir. 1998) (“[Defendant’s] conviction for making a sworn false statement to a government official is obviously a crime of dishonesty and false statement by virtue of its title alone.”).

This is obviously a crime involving “a dishonest act or false statement.” Fed. R. Evid. 609(a)(2); see, e.g., United States v. Payton, 159 F.3d 49, 57 (2d Cir. 1998) (“[Defendant’s] conviction for making a sworn false statement to a government official is obviously a crime of dishonesty and false statement by virtue of its title alone.”).

a. Probative Value Does Not Substantially Outweigh Prejudicial Effect As Plaintiff acknowledges, because Defendant Degel’s conviction is more than ten (10) years old, it may only be used to attack Defendant Degel’s credibility if its probative value substantially outweighs its prejudicial effect. Fed. R. Evid. 609(b). See Plaintiffs Memo in Support, p. 2.

The timing of Plaintiff’s conviction is well within the time period of allowable convictions under Rule 609. See Fed. R. Evid. 609(b). Because Plaintiff is not a criminal defendant, there is less concern that the jury is likely to misuse the evidence for purposes other than impeachment.