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Motion in limine


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Motion in limine to exclude evidence

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Motion in limine

  1. 1. ABOUT THIS WRITING SAMPLE This motion in limine (“motion”) was drafted for Paul T. Hofmann, the managing partnerof Hofmann & Schweitzer. This motion was drafted pursuant to a case that was on the verge oftrial, however settled shortly before trial was to begin. Mr. Hofmann gave me this assignment incase he had to proceed to trial. This was a civil case wherein our client sustained severe personalinjuries on a defendant’s construction site. Plaintiff’s real name was redacted for purposes ofanonymity. This case took place in New York, however the plaintiff’s criminal record was aNew Jersey record. MOTION IN LIMINE PRELIMINARY STATEMENT 3. This Affirmation is submitted on behalf of the plaintiff to preclude irrelevant andunduly prejudicial evidence arising out of X’s court proceedings in New Jersey. Specifically,plaintiff seeks to preclude any evidence stemming from an accusation that X obtained temporarydisability benefits from Liberty Mutual Insurance Company (“Liberty”) by means of deception.Some time prior to July 20, 2011, X waived an indictment by a Grand Jury and elected to betried before a Judge. The trial judge made no adjudication as to X’s guilt. On July 20, 2011,following a pretrial acceptance hearing, X was granted leave by the New Jersey Superior Courtof Monmouth County to enroll into a Pretrial Intervention Program (“PTI”). As part of thisprogram, the Court placed X on probation for one year. In addition, X agreed to pay restitution toLiberty and agreed to community service of seventy-five hours. X’s acceptance into this programdid not constitute a guilty plea.
  2. 2. ARGUMENT POINT IANY EXTRINSIC EVIDENCE FROM X’S COURT PROCEEDINGS IS INADMISSIBLE BECAUSE IT SEEKSTO PROVE A COLLATERAL MATTER AT TRIAL 5. It is a well-settled rule that extrinsic evidence cannot be submitted to prove a collateralmatter at trial. Badr v. Hogan, 75 N.Y.2d 629, 635 (1990); People v. Schwartzman, 24 NY2d241, 247 (1969); Richardson on Evidence. §184 (10th Ed. 1973). Extrinsic evidence is anydocumentary evidence used by a party to assist in the cross-examination of a witness.Schwartzman, 24 NY2d at 247. A collateral matter is any matter that is either (1) not directlyrelevant to some issue in a case other than to credibility or (2) not independently admissible toimpeach a witness. Hogan, 75 N.Y.2d at 635. A matter is independently admissible to impeach awitness only if it relates to the material facts in dispute at trial, or if it tends to prove a witnessbias, hostility, intent, motive, a common scheme or plan, or impaired ability to perceive. Hogan,75 N.Y.2d at 635; See also Schwartzman, 24 NY2d at 248; See, Richardson, Evidence §§ 491,503, 507 [Prince 10th ed]. 6. Here, the defendants seek to introduce extrinsic documentary evidence compromisedof an accusation, an accusation-hearing transcript, and a PTI acceptance-hearing transcript toimpeach X’s credibility at trial. Also, the New Jersey Court proceedings are of a collateral naturebecause they are not relevant to any of the issues at trial other than to impeach X’s credibility.Therefore, this extrinsic evidence cannot be admitted to prove this collateral matter at trial. 7. The seminal New York Court of Appeals case, Badr v. Hogan, 75 N.Y.2d 629, (1990)applying the collateral evidence rule is relevant. In Badr, plaintiff sought damages for injuriesincurred when defendant failed to repair a window. A jury trial resulted in a verdict for defendantand, on appeal, the Appellate Division Second Department affirmed with a divided court. On
  3. 3. plaintiffs appeal to the Court of Appeals, the court considered the issue of whether the trial courtcommitted reversible error in permitting defense counsel to cross-examine plaintiff incontravention of the rule barring the use of extrinsic evidence to contradict a witnesss answerson collateral matters. At trial, defense counsel inquired as to whether plaintiff had deceitfullyreceived public welfare funds from the Department of Social Services. After plaintiff deniedreceiving such funds, and over objections from plaintiff’s counsel, the trial court permitted thedefense to show the witness the confession of judgment, which had been marked as an exhibitand to base his continued questioning on that document. The Court of Appeals, in reviewing thelower court’s decision noted that the issue of whether plaintiff had deceitfully received fundsfrom the Department of Social Services was unquestionably a collateral matter not related to anyof the issues at trial and, if proven, it would only show that plaintiff had acted deceitfully on aprior unrelated occasion. There, the Court held that the confession of judgment tending toimpeach the plaintiff as to a collateral matter was inadmissible since under the settled rule, thedefense cannot use such extrinsic evidence to impeach the plaintiff. 8. Similarly, in our case the New Jersey Court proceedings constitute a collateral matterin that they are not relevant to some issue in the case other than to credibility. If proven, it wouldonly show that plaintiff had acted deceitfully on a prior unrelated occasion. Also, like in Badr,where the defense used the confession of judgment to impeach the plaintiff, here the defense willuse the documentary evidence to do the same. Furthermore, like the confession of judgment inBadr, which constituted inadmissible extrinsic evidence, the documentary evidence hereconstitutes the same. Therefore, this court should not allow defense counsel to use thisdocumentary extrinsic evidence to impeach plaintiff with regards to the New Jersey Courtproceedings, since it is a collateral matter.
  4. 4. 9. Additionally, the subsequent authorities that analyze and apply the collateral evidencerule discussed above maintain its viability. The principle is that extrinsic evidence may not beused to impeach the credibility of a witness on collateral matters. Parsons v. 218 E. Main St.Corp., 766 N.Y.S.2d 895 (2d Dept. 2003). In Parsons, plaintiff brought an action to recover forpersonal injuries. The Supreme Court Suffolk County, upon a jury verdict in favor of thedefendant, dismissed the complaint. The Appellate Court Second Department reversed, andreinstated the complaint. The Appellate Court citing Badr, reasoned that the trial courtimproperly permitted defendant to introduce a hospital record and the testimony of a physiciansassistant to contradict the injured plaintiffs testimony on a matter that was irrelevant to the issuesin the case. Moreover, the error was sufficiently prejudicial to warrant a new trial. Id. at 896. Seealso, Matter of Gorniok v Zeledon-Mussio, 918 N.Y.S.2d 516 (2d Dept. 2011) (there the Courtheld, citing Badr, that the Family Court improvidently exercised its discretion in permitting theintroduction of extrinsic evidence to contradict the babysitters testimony regarding matters that"had no direct bearing on any issue in the case other than credibility" [internal citationsomitted]); Muye v. Liben, 723 N.Y.S.2d 510 (2d Dept. 2001) (finding that the trial court erred inpermitting the defendant to present extrinsic evidence to impeach plaintiffs credibility on acollateral matter unrelated to the issue of whether defense’s negligence caused the accident);People v. Seabrook, 906 N.Y.S.2d 592 (2d Dept. 2010); Haiyan Lu v. Spinelli, 844 N.Y.S.2d 228(1st Dept. 2007) (finding that the trial court erred when they allowed defense to submit extrinsicevidence as to whether plaintiff had filed a prior unrelated lawsuit). 10. Also in the recent decision, Mendelovitz v Cohen, 907 N.Y.S.2d 101 (Sup. Ct. Kings2010), this Court was called upon to rule on an objection to the use of extrinsic evidence duringthe cross-examination of plaintiff’s witness purportedly to contradict the response of the witness
  5. 5. regarding findings on an unrelated action. Defendant sought to introduce a final judicialbankruptcy decision for the purpose of impeaching the credibility of the witness on a collateralmatter. Defendants’ counsel offered a certified copy of the decision in that case “for credibilitypurposes”, which counsel argued could be judicially noticed by this Court. Plaintiff’s counselobjected on the basis of the collateral evidence rule. Following the reasoning in Badr, this Courtreasoned that: Although the Court may take judicial notice of prior judicial proceedings from another court involving different parties (Matter of Justin EE, 153 AD2d 772, 774, 544 N.Y.S.2d 892 [3d Dept 1989]), where, as here, factual information is sought to be judicially noticed, such information must be relevant to the issues on trial. [Defense] [c]ounsel is not asking the Court to take judicial notice of the law, as would be required pursuant to CPLR 4511 (see Pfleuger v Pfleuger, 304 NY 148, 151, 106 N.E.2d 495 [1952]), but is seeking to use the factual determination of another tribunal on an unrelated matter solely to impeach the witness. The general rule permits cross-examination “with respect to specific immoral, vicious, or criminal acts which have a bearing on the witness’s credibility.” However, where the witness denies wrongdoing, although he or she may be questioned further, extrinsic evidence is not admissible to prove the collateral facts raised. [internal citations omitted]. Id. at 101. 11. Similarly, the New Jersey Court proceedings here, like the plaintiffs’ bankruptcydisposition in Cohen is an unrelated matter. Moreover, like in Cohen where the defenseattempted to use the judicial bankruptcy decision to impeach plaintiff’s credibility, the defensehere is attempting the same with the New Jersey documents. Furthermore, where this court inCohen held that the bankruptcy disposition was inadmissible extrinsic evidence tending to provea collateral matter, here this Court should hold the same. POINT IIDEFENSES’ CROSS-EXAMINATION OF X REGARDING HIS COURT PROCEEDINGS SHOULD NOT BEALLOWED BECAUSE THE UNFAIR PREJUDICE WILL OUTWEIGH ITS PROBATIVE VALUE
  6. 6. 12. The general rule is that a witness may be interrogated upon cross-examination withrespect to any immoral, vicious or criminal act of his life which may affect his character andshow him to be unworthy of belief, provided the cross-examiner questions in good faith andupon a reasonable basis in fact. Badr, 75 N.Y.2d at 634; Schwartzman, 24 NY2d at 244. Whilethe nature and extent of such cross-examination is discretionary with the trial court, the inquirymust have some tendency to show moral turpitude to be relevant on the credibility issue. Badr,75 N.Y.2d at 635. Moral turpitude is evident where the acts targeted by the defendants line ofinquiry can be characterized as base, vile, or depraved. People v. McNally, 607 N.Y.S.2d 123,124 (2d Dept. 1994). However, it is a long-established principle that the impeachment of awitness by evidence or inquiry as to prior arrests or charges is clearly improper, since theyinvolve mere assertions of guilt. Dance v. Town of Southampton, 467 N.Y.S.2d 203, 210 (2dDept. 1983). The mere fact that a person has been previously charged or accused has noprobative value. People v Cook, 37 NY2d 591, 596 (1975). The trial court in its discretion isrequired to balance the probative worth of such inquiries with regard to prior specific criminal,vicious, or immoral acts on the issue of credibility against the risk of unfair prejudice to the partywho’s credibility is at issue. Schwartzman, 24 NY2d at 247. 13. The unfair prejudice to Plaintiff that will arise from defenses’ cross-examination of Xregarding the proceedings or any of the underlying facts forming the basis of these allegationsgreatly outweighs its probative value. As a result of X being placed on probation, the jury mayimproperly conclude that a tribunal found that he engaged in deceptive acts. However, X wasonly accused of such misconduct. Such an accusation is a mere assertion and proves nothing.There is absolutely no logical connection between Xs prior unproven accusation and hiscredibility. As a consequence the defenses’ cross-examination of plaintiff should not be allowed.
  7. 7. 12. The Court of Appeals decision in People v. Cook, 376 N.Y.S.2d 110 (1975) isrelevant. In Cook, after a jury trial, defendant was convicted of criminal possession of stolenproperty in the first degree and unauthorized use of a vehicle. The Appellate Court SecondDepartment affirmed. On appeal, the Court of Appeals considered the propriety of disclosingdefendants prior youthful offender adjudication during cross-examination. At trial, defenses’cross-examination focused on defendants past involvement with the law and he was askedwhether he recalled being in Juvenile Term in 1970. In response to further questions, defendantacknowledged that he was found in possession of a stolen car in July of 1970, but denied that hewas involved with a stolen vehicle in April 1971. At this point the inquiry as to the latter incidentwas taken over by the court who asked defendant if, apart from the 1970 incident, he was "evercharged again with the theft of a car?" Defendants attorney objected to the use of the wordcharged. The court then rephrased the question asking defendant if he had ever been "processedagain for [a] stolen car in this building by another judge?" In light of the fact that defendant hadnever been convicted of stealing a car, and had only been adjudicated a youthful offender forresisting arrest which he had already admitted, defendant moved for a mistrial claiming undueprejudice. The court denied the motion and cross-examination was allowed to continue.Defendant was then asked if he remembered being arrested in July, 1971 and pleading guilty toresisting arrest. Defendant answered in the affirmative. The prosecutor then attempted to developthe facts surrounding this occurrence. The Court of Appeals, reversed the lower court’sdetermination and reasoned, “since a youthful offender adjudication is not a conviction for acrime, it may not be shown to affect the witness credibility.” Id. at 113. Furthermore, the Courtoutlined that “although a prosecutor may, for purposes of impeachment, cross-examine adefendant as to a vicious, immoral or illegal act which constituted the basis for a prior youthful
  8. 8. offender adjudication… the fact that defendant had previously been adjudicated a youthfuloffender was improperly elicited.” Id. Furthermore, the Court noted that Equally egregious was that portion of the cross-examination, which considered whether defendant had previously been "charged" or "processed" for other crimes. Impeachment of a witness by evidence or inquiry as to prior arrests or charges is clearly improper. The mere fact that a person has been previously charged or accused has no probative value. There is absolutely no logical connection between a prior unproven charge and that witness credibility. Therefore, such evidence is inadmissible as unduly prejudicial hearsay, which contravenes the presumption of innocence. Id. at 114. This Court should adopt the line of reasoning in Cook regarding the propriety of cross-examining a witness. Like the youthful offender adjudication in Cook, where it was not aconviction and therefore was incapable of affecting a witness credibility, X’s accusation suffersfrom the same infirmities. Additionally, as in Cook where the court found the impeachment of awitness by evidence or inquiry as to prior arrests or charges as clearly improper, the court in thiscase should deem any evidence or inquiry into X’s accusation and underlying facts forming thebasis thereof, improper as well. As the Court in Cook deemed any charge or accusation withoutany probative value, it follows that X’s accusation has none as well. Therefore, as in Cook wheresuch a defendants’ line of questioning was unduly prejudicial, this Court should disallow thedefendants’ in this case from asking the same. A similar line of reasoning is found in Dance v. Town of Southampton, 467 N.Y.S.2d203, 210 (2d Dept. 1983). There, the Appellate Division Second Department considered, interalia, the issue of whether plaintiff was improperly cross-examined in that he was subjected torepeated questioning concerning arrest warrants and criminal charges, even though conviction ofa crime or underlying immoral conduct was not shown. Id. There the Court reasoned that“counsels repeated attempts to impeach the witness based upon arrest warrants and criminal
  9. 9. charges were not accompanied by any showing that there had been convictions based on theseaccusations.” The Court further noted that impeachment based on an arrest or indictment alone isimproper, however, since they involve mere accusations of guilt. Id. The Court held that suchprejudice was an error grave enough in scope to have potentially affected the verdict. As a result,the Court reversed and granted a new trial. Like the indictment in Dance, which was comprised of mere accusations of guilt, X’scharge is comprised of the same. It follows that, where in Dance, impeachment based on thisindictment alone was improper, impeachment based on X’s charge alone would be improper aswell. Furthermore, like the Court in Dance, which held that such prejudice was an error graveenough in scope to have potentially affected the verdict, if the court permits such a cross-examination in our case, such a prejudicial error may occur as well. Our case is dissimilar to McNeill v. LaSalle Partners, 861 N.Y.S.2d 15 (2d Dept. 2008). InMcNeill, plaintiff brought a personal injury action when he slipped and injured himself ondefendants’ construction site. There, the Appellate Division Second Department dealt with theissue of whether the trial court abused its discretion when they prohibited the defendant fromquestioning plaintiff on cross-examination as to the reason plaintiff lost the job he held at thetime of his accident. The court reversed and held that the trial court abused its discretion as amatter of law in preventing appellants from questioning plaintiff during cross-examination as tothe reason he lost his job he held at the time of his accident. The Court reasoned “Although plaintiff testified at his deposition that he was laid off for economic reasons, the record reflects that appellants obtained documentation indicating that plaintiff was terminated for having defrauded his employer through the submission of fraudulent reimbursement slips. Such dishonest conduct (assuming plaintiff engaged in it) plainly falls within the category of prior immoral, vicious or criminal acts having a direct bearing on the witnesss credibility, inasmuch as "it demonstrates an untruthful bent or
  10. 10. significantly reveals a willingness or disposition ... voluntarily to place the advancement of his individual self-interest ahead of principle or of the interests of society" (People v Walker, 83 NY2d 455, 461, 633 NE2d 472, 611 NYS2d 118 [1994] Moreover, appellants sought to question plaintiff about this matter in good faith, and with a reasonable basis in fact (see People v Kass, 25 NY2d 123, 125-126, 250 NE2d 219, 302 NYS2d 807 [1969])…the issue of plaintiffs credibility went to the heart of appellants defense as to both liability and damages, the error was not harmless, and a new trial is required.” Here, unlike in McNeill, X’s record does not reflect that X in fact defrauded Liberty. Thedisposition of the proceedings does not prove fraudulent intent. Thus, it follows that this courtshould not permit the defense to question X so that they may improperly imply to the jury that Xpossessed such intent. Moreover, X’s records, unlike the documents in McNeill do not indicatethat X was involved in any dishonest conduct. As mentioned previously, X’s documents are mereassertions of guilt, which tend to prove nothing. Furthermore, unlike in McNeill, whereplaintiffs’ conduct significantly revealed a willingness...voluntarily to place the advancement ofhis individual self-interest ahead of principle or of the interests of society," here X’s records donot reveal such a tendency. Furthermore, allowing the defendants to cross-examine plaintiff regarding the proceedingsor any underlying events forming the basis thereof, will improperly mislead the jury to believethat, since X has defrauded an insurance company in the past, he may in this trial, intend to do itagain. Plainly, this improper characterization of X is unduly prejudicial and should not beallowed. Allowing such a thought to enter the jury’s minds not only would unfairly andprejudicially soil plaintiffs’ reputation and credibility, but would also confuse the jurors as to thematerial issues at the trial of this action, the defendant’s negligence that proximately causedplaintiffs’ injuries. For the foregoing reasons, plaintiff asks this Court to grant its motion for an order:
  11. 11. (a) Precluding the introduction at the trial of this action of any evidence arising out of X’s NewJersey Superior Court of Monmouth County proceedings.(b) Precluding the defense from cross-examining X regarding these court proceedings, anycorresponding investigation and any underlying facts that formed the basis of these proceedings.Dated: February 13, 2012 New York, New York