Motion in limine to exclude evidence

1. ABOUT THIS WRITING SAMPLE
This motion in limine (“motion”) was drafted for Paul T. Hofmann, the managing partner
of Hofmann & Schweitzer. This motion was drafted pursuant to a case that was on the verge of
trial, however settled shortly before trial was to begin. Mr. Hofmann gave me this assignment in
case he had to proceed to trial. This was a civil case wherein our client sustained severe personal
injuries on a defendant’s construction site. Plaintiff’s real name was redacted for purposes of
anonymity. This case took place in New York, however the plaintiff’s criminal record was a
New Jersey record.
MOTION IN LIMINE
PRELIMINARY STATEMENT
3. This Affirmation is submitted on behalf of the plaintiff to preclude irrelevant and
unduly 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 temporary
disability 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 be
tried 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 Court
of Monmouth County to enroll into a Pretrial Intervention Program (“PTI”). As part of this
program, the Court placed X on probation for one year. In addition, X agreed to pay restitution to
Liberty and agreed to community service of seventy-five hours. X’s acceptance into this program
did not constitute a guilty plea.

2. ARGUMENT
POINT I
ANY EXTRINSIC EVIDENCE FROM X’S COURT PROCEEDINGS IS INADMISSIBLE BECAUSE IT SEEKS
TO PROVE A COLLATERAL MATTER AT TRIAL
5. It is a well-settled rule that extrinsic evidence cannot be submitted to prove a collateral
matter at trial. Badr v. Hogan, 75 N.Y.2d 629, 635 (1990); People v. Schwartzman, 24 NY2d
241, 247 (1969); Richardson on Evidence. §184 (10th Ed. 1973). Extrinsic evidence is any
documentary 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 directly
relevant to some issue in a case other than to credibility or (2) not independently admissible to
impeach a witness. Hogan, 75 N.Y.2d at 635. A matter is independently admissible to impeach a
witness only if it relates to the material facts in dispute at trial, or if it tends to prove a witness'
bias, 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 compromised
of an accusation, an accusation-hearing transcript, and a PTI acceptance-hearing transcript to
impeach X’s credibility at trial. Also, the New Jersey Court proceedings are of a collateral nature
because 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 injuries
incurred when defendant failed to repair a window. A jury trial resulted in a verdict for defendant
and, on appeal, the Appellate Division Second Department affirmed with a divided court. On

3. plaintiff's appeal to the Court of Appeals, the court considered the issue of whether the trial court
committed reversible error in permitting defense counsel to cross-examine plaintiff in
contravention of the rule barring the use of extrinsic evidence to contradict a witness's answers
on collateral matters. At trial, defense counsel inquired as to whether plaintiff had deceitfully
received public welfare funds from the Department of Social Services. After plaintiff denied
receiving such funds, and over objections from plaintiff’s counsel, the trial court permitted the
defense to show the witness the confession of judgment, which had been marked as an exhibit
and to base his continued questioning on that document. The Court of Appeals, in reviewing the
lower court’s decision noted that the issue of whether plaintiff had deceitfully received funds
from the Department of Social Services was unquestionably a collateral matter not related to any
of the issues at trial and, if proven, it would only show that plaintiff had acted deceitfully on a
prior unrelated occasion. There, the Court held that the confession of judgment tending to
impeach the plaintiff as to a collateral matter was inadmissible since under the settled rule, the
defense cannot use such extrinsic evidence to impeach the plaintiff.
8. Similarly, in our case the New Jersey Court proceedings constitute a collateral matter
in that they are not relevant to some issue in the case other than to credibility. If proven, it would
only 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 will
use the documentary evidence to do the same. Furthermore, like the confession of judgment in
Badr, which constituted inadmissible extrinsic evidence, the documentary evidence here
constitutes the same. Therefore, this court should not allow defense counsel to use this
documentary extrinsic evidence to impeach plaintiff with regards to the New Jersey Court
proceedings, since it is a collateral matter.

4. 9. Additionally, the subsequent authorities that analyze and apply the collateral evidence
rule discussed above maintain its viability. The principle is that extrinsic evidence may not be
used 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 for
personal injuries. The Supreme Court Suffolk County, upon a jury verdict in favor of the
defendant, dismissed the complaint. The Appellate Court Second Department reversed, and
reinstated the complaint. The Appellate Court citing Badr, reasoned that the trial court
improperly permitted defendant to introduce a hospital record and the testimony of a physician's
assistant to contradict the injured plaintiff's testimony on a matter that was irrelevant to the issues
in the case. Moreover, the error was sufficiently prejudicial to warrant a new trial. Id. at 896. See
also, Matter of Gorniok v Zeledon-Mussio, 918 N.Y.S.2d 516 (2d Dept. 2011) (there the Court
held, citing Badr, that the Family Court improvidently exercised its discretion in permitting the
introduction of extrinsic evidence to contradict the babysitter's testimony regarding matters that
"had no direct bearing on any issue in the case other than credibility" [internal citations
omitted]); Muye v. Liben, 723 N.Y.S.2d 510 (2d Dept. 2001) (finding that the trial court erred in
permitting the defendant to present extrinsic evidence to impeach plaintiff's credibility on a
collateral 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 extrinsic
evidence 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. Kings
2010), this Court was called upon to rule on an objection to the use of extrinsic evidence during
the cross-examination of plaintiff’s witness purportedly to contradict the response of the witness

5. regarding findings on an unrelated action. Defendant sought to introduce a final judicial
bankruptcy decision for the purpose of impeaching the credibility of the witness on a collateral
matter. Defendants’ counsel offered a certified copy of the decision in that case “for credibility
purposes”, which counsel argued could be judicially noticed by this Court. Plaintiff’s counsel
objected on the basis of the collateral evidence rule. Following the reasoning in Badr, this Court
reasoned 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’ bankruptcy
disposition in Cohen is an unrelated matter. Moreover, like in Cohen where the defense
attempted to use the judicial bankruptcy decision to impeach plaintiff’s credibility, the defense
here is attempting the same with the New Jersey documents. Furthermore, where this court in
Cohen held that the bankruptcy disposition was inadmissible extrinsic evidence tending to prove
a collateral matter, here this Court should hold the same.
POINT II
DEFENSES’ CROSS-EXAMINATION OF X REGARDING HIS COURT PROCEEDINGS SHOULD NOT BE
ALLOWED BECAUSE THE UNFAIR PREJUDICE WILL OUTWEIGH ITS PROBATIVE VALUE

6. 12. The general rule is that a witness may be interrogated upon cross-examination with
respect to any immoral, vicious or criminal act of his life which may affect his character and
show him to be unworthy of belief, provided the cross-examiner questions in good faith and
upon a reasonable basis in fact. Badr, 75 N.Y.2d at 634; Schwartzman, 24 NY2d at 244. While
the nature and extent of such cross-examination is discretionary with the trial court, the inquiry
must 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 defendant's line of
inquiry 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 a
witness by evidence or inquiry as to prior arrests or charges is clearly improper, since they
involve mere assertions of guilt. Dance v. Town of Southampton, 467 N.Y.S.2d 203, 210 (2d
Dept. 1983). The mere fact that a person has been previously charged or accused has no
probative value. People v Cook, 37 NY2d 591, 596 (1975). The trial court in its discretion is
required 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 party
who’s credibility is at issue. Schwartzman, 24 NY2d at 247.
13. The unfair prejudice to Plaintiff that will arise from defenses’ cross-examination of X
regarding the proceedings or any of the underlying facts forming the basis of these allegations
greatly outweighs its probative value. As a result of X being placed on probation, the jury may
improperly conclude that a tribunal found that he engaged in deceptive acts. However, X was
only accused of such misconduct. Such an accusation is a mere assertion and proves nothing.
There is absolutely no logical connection between X's prior unproven accusation and his
credibility. As a consequence the defenses’ cross-examination of plaintiff should not be allowed.

7. 12. The Court of Appeals decision in People v. Cook, 376 N.Y.S.2d 110 (1975) is
relevant. In Cook, after a jury trial, defendant was convicted of criminal possession of stolen
property in the first degree and unauthorized use of a vehicle. The Appellate Court Second
Department affirmed. On appeal, the Court of Appeals considered the propriety of disclosing
defendant's prior youthful offender adjudication during cross-examination. At trial, defenses’
cross-examination focused on defendant's past involvement with the law and he was asked
whether he recalled being in Juvenile Term in 1970. In response to further questions, defendant
acknowledged that he was found in possession of a stolen car in July of 1970, but denied that he
was involved with a stolen vehicle in April 1971. At this point the inquiry as to the latter incident
was taken over by the court who asked defendant if, apart from the 1970 incident, he was "ever
charged again with the theft of a car?" Defendant's attorney objected to the use of the word
charged. The court then rephrased the question asking defendant if he had ever been "processed
again for [a] stolen car in this building by another judge?" In light of the fact that defendant had
never been convicted of stealing a car, and had only been adjudicated a youthful offender for
resisting arrest which he had already admitted, defendant moved for a mistrial claiming undue
prejudice. 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 to
resisting arrest. Defendant answered in the affirmative. The prosecutor then attempted to develop
the facts surrounding this occurrence. The Court of Appeals, reversed the lower court’s
determination and reasoned, “since a youthful offender adjudication is not a conviction for a
crime, it may not be shown to affect the witness' credibility.” Id. at 113. Furthermore, the Court
outlined that “although a prosecutor may, for purposes of impeachment, cross-examine a
defendant as to a vicious, immoral or illegal act which constituted the basis for a prior youthful

8. offender adjudication… the fact that defendant had previously been adjudicated a youthful
offender 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 a
conviction and therefore was incapable of affecting a witness' credibility, X’s accusation suffers
from the same infirmities. Additionally, as in Cook where the court found the impeachment of a
witness by evidence or inquiry as to prior arrests or charges as clearly improper, the court in this
case should deem any evidence or inquiry into X’s accusation and underlying facts forming the
basis thereof, improper as well. As the Court in Cook deemed any charge or accusation without
any probative value, it follows that X’s accusation has none as well. Therefore, as in Cook where
such a defendants’ line of questioning was unduly prejudicial, this Court should disallow the
defendants’ in this case from asking the same.
A similar line of reasoning is found in Dance v. Town of Southampton, 467 N.Y.S.2d
203, 210 (2d Dept. 1983). There, the Appellate Division Second Department considered, inter
alia, the issue of whether plaintiff was improperly cross-examined in that he was subjected to
repeated questioning concerning arrest warrants and criminal charges, even though conviction of
a crime or underlying immoral conduct was not shown. Id. There the Court reasoned that
“counsel's repeated attempts to impeach the witness based upon arrest warrants and criminal

9. charges were not accompanied by any showing that there had been convictions based on these
accusations.” The Court further noted that impeachment based on an arrest or indictment alone is
improper, however, since they involve mere accusations of guilt. Id. The Court held that such
prejudice 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’s
charge is comprised of the same. It follows that, where in Dance, impeachment based on this
indictment alone was improper, impeachment based on X’s charge alone would be improper as
well. Furthermore, like the Court in Dance, which held that such prejudice was an error grave
enough 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). In
McNeill, plaintiff brought a personal injury action when he slipped and injured himself on
defendants’ construction site. There, the Appellate Division Second Department dealt with the
issue of whether the trial court abused its discretion when they prohibited the defendant from
questioning plaintiff on cross-examination as to the reason plaintiff lost the job he held at the
time of his accident. The court reversed and held that the trial court abused its discretion as a
matter of law in preventing appellants from questioning plaintiff during cross-examination as to
the 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 witness's
credibility, inasmuch as "it demonstrates an untruthful bent or

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 plaintiff's 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. The
disposition of the proceedings does not prove fraudulent intent. Thus, it follows that this court
should not permit the defense to question X so that they may improperly imply to the jury that X
possessed such intent. Moreover, X’s records, unlike the documents in McNeill do not indicate
that X was involved in any dishonest conduct. As mentioned previously, X’s documents are mere
assertions of guilt, which tend to prove nothing. Furthermore, unlike in McNeill, where
plaintiffs’ conduct significantly revealed a willingness...voluntarily to place the advancement of
his individual self-interest ahead of principle or of the interests of society," here X’s records do
not reveal such a tendency.
Furthermore, allowing the defendants to cross-examine plaintiff regarding the proceedings
or any underlying events forming the basis thereof, will improperly mislead the jury to believe
that, since X has defrauded an insurance company in the past, he may in this trial, intend to do it
again. Plainly, this improper characterization of X is unduly prejudicial and should not be
allowed. Allowing such a thought to enter the jury’s minds not only would unfairly and
prejudicially soil plaintiffs’ reputation and credibility, but would also confuse the jurors as to the
material issues at the trial of this action, the defendant’s negligence that proximately caused
plaintiffs’ injuries.
For the foregoing reasons, plaintiff asks this Court to grant its motion for an order:

11. (a) Precluding the introduction at the trial of this action of any evidence arising out of X’s New
Jersey Superior Court of Monmouth County proceedings.
(b) Precluding the defense from cross-examining X regarding these court proceedings, any
corresponding investigation and any underlying facts that formed the basis of these proceedings.
Dated: February 13, 2012
New York, New York