Opinion
No. 00 Civ. 7002 (CBM)
June 2, 2003
MEMORANDUM OPINION AND ORDER
At a pre-trial conference held on May 29, 2003 for the purpose of ruling on the parties' objections to any of the other sides' exhibits, defendants notified the court and opposing counsel that they intended to introduce evidence of plaintiff Barbara Jones' 1987 embezzlement conviction both to impeach her should she choose to testify and to illuminate the state of mind of one of the defendants, Fred Hutson, who became aware of the conviction and yet chose to be lenient to Ms. Jones.
The facts recited in this decision relating to evidence of Ms. Jones' conviction are drawn from representations made by defense counsel at the pre-trial conference in her informal offer of proof relating to this issue.
Mr. Hutson, Ms. Jones' superior at the New York City Health and Hospital Corporation ("HHC"), received a memorandum from the Office of Background Investigations in March of 1994 ("the OBI memo"), as part of a routine background check that HHC runs on all of its employees. The OBI memo stated that contrary to what Ms. Jones indicated on her job application to HHC, she did not leave her previous job because her supervisor there retired; rather, she was terminated as a result of her prosecution in the Eastern District of New York under 18 U.S.C. § 641 (embezzlement of public money) for misrepresenting her salary in connection with her application for Section 8 housing funds. She eventually pleaded guilty to the charges and was sentenced to probation, made restitution payments and sought to have her record cleared.
Plaintiff objects to the use of the conviction for any purpose whatsoever. Defendants, however, submit that evidence of the conviction is admissible under Rule 609 of the Federal Rules of Evidence to impeach her credibility in the event that she testifies and simply as evidence relevant to Mr. Hutson's state of mind. The court will address the two issues in order.
Rule 609
Rule 609 states that "[f]or the purpose of attacking the credibility of a witness . . . evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement." Fed.R.Evid. 609(a)(2). The use of the word "shall" suggests that a district court has no discretion when the crime involved dishonesty or false statement. There can be no dispute that embezzlement of public money constitutes such a crime. However, Rule 609 contains a staleness provision with regard to such convictions:
[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests ofjustice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
Fed.R.Evid. 609(b). Since Ms. Jones pleaded guilty 1987 and was sentenced to eighteen months of probation, it is clear that the conviction is more than ten years old. Thus, there is a presumption against admissibility under the rule unless this court finds on the record that the probative value of the evidence substantially outweighs its prejudicial effect.See United States v. Payton, 159 F.3d 49, 57 (2d Cir. 1998) (affirming district court's Rule 609(b) analysis for crimes involving dishonesty but more than ten years old); United States v. Mahler, 579 F.2d 730, 734 (2d Cir. 1978) (court must make findings regarding probity and prejudice on the record).
At this point in time, the court finds that the probative value of Ms. Jones' conviction does not substantially outweigh the prejudicial effect of its introduction into evidence. Since defendants are entitled to ask Ms. Jones about the truthfulness of her statements on her job application to HHC, the added probative value of her conviction with respect to her credibility is diminished and cannot overcome the sizable hurdle erected by Rule 609(b). However, since the court will be better able to determine the probative value of the evidence after some of the facts of the case have been made clearer through testimony and particularly after Ms. Jones herself has testified, defendants may renew their application to impeach her with evidence of her conviction before they begin cross-examination.See East Coast Novelty Company, Inc. v. City of New York, 842 F. Supp. 117, 121 (S.D.N.Y 1994) (deferring ruling on admission of evidence of prior conviction under Rule 609(a)(1) until trial).
Rule 403
Unhappily for plaintiff, defendants are entitled to introduce the OBI memo during their case in chief. Plaintiff has sued Mr. Hutson, alleging that he discriminated against her because of her gender. Accordingly, his state of mind is highly relevant to the central inquiry of the trial: did Mr. Hutson intentionally treat Ms. Jones differently (and badly) because she was a woman? Mr. Hutson is entitled to defend himself by showing, as counsel for defendants offered in court, that he learned of Ms. Jones' conviction and her misrepresentations on her HHC application through the OBI memo and that he chose to treat her with leniency. Given the relevance of that memo to Mr. Hutson's state of mind, plaintiffs only challenge is under Rule 403, which reverses the presumption of Rule 609(b): "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." Fed.R.Evid. 403. In other words, the presumption under Rule 403 favors admission unless the court finds the prejudicial effect of the evidence to substantially outweigh its probative value.
If the OBI memo is offered only to show Mr. Hutson's state of mind and not for the truth of the matters asserted therein, it is not subject to a challenge on hearsay grounds. See Fed.R.Evid. 801.
Again, at this point in time, the court finds that the prejudicial effect of the evidence, introduced during defendants' case in chief, does not substantially outweigh its probative value, particularly since any prejudice may be mitigated by a curative instruction to the jury. See. e.g., Agron v. Trustees of Columbia University in City of New York, 176 F.R.D. 445, 451 (S.D.N.Y., 1997) (quoting 1972 Advisory Committee Notes to Rule 403: "[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction"). As above, however, because the court will be better able to undertake the balancing required by Rule 403 after the trial has commenced and evidence has been presented, plaintiff may renew her objection prior to the introduction of the evidence during defendants' case in chief.
SO ORDERED.