Plaintiff brought this criminal action to recover damages for injuries he claims to have suffered as a result of being knocked down as he attempted to board a bus operated by the defendant which was traveling on Hylan Boulevard in Staten Island. At the time of jury selection, the plaintiff moved in limine to preclude the defendant from offering evidence of or in any way calling the jury’s attention to the facts of the plaintiff’s incontestable past use of heroin and his current participation in a methadone treatment program.
Following jury selection and prior to opening, the court granted the balance of the plaintiff’s motion and precluded the defendant from mentioning or offering any evidence of the plaintiffs past use of heroin. Given that there is a paucity of reported case law regarding the admissibility of such evidence in civil proceedings, the court files the decision to memorialize its opinion.
First, it is important to recognize what is not presented on the motion. The motion does not question whether a plaintiff’s use of the drug heroin is admissible in the damages phase of a civil trial where the jury is assessing a variety of health and life issues relating to the plaintiff, such as life expectancy. In that context, with an appropriate foundation, testimony regarding the plaintiffs heroin use would surely be admissible. Nor is it about whether the plaintiff was under the influence of heroin at the time of the DWI accident so that his powers of perception or recollection might actually have been impaired by his heroin habit; nor whether the plaintiff was under the influence of heroin at the time of his testimony. The use of heroin by the plaintiff in those circumstances would be admissible even in the liability phase to impeach his credibility as a witness. Indeed, in all of those situations, proof of heroin use and addiction even by extrinsic evidence would be proper. (See, e.g., People v Freeland, 36 NY2d 518, 525 [1975].) The lone issue decided by this court on the branch of the motion reserved to it was whether the plaintiff’s past use of heroin was admissible as an act of moral turpitude offered only to attack his credibility as a witness.
According to the court, there is little doubt that the plaintiffs heroin habit qualifies as a specific immoral, vicious and/or criminal act which could have a bearing on the plaintiff’s credibility. The court, nonetheless, exercised its discretion to preclude the defendant from offering such evidence or making such reference before the jury on two grounds. The first rests on the synergy of the proposed evidence with other evidence to be offered by the defendant to impeach the plaintiff’s credibility. Not unexpectedly for someone who, at a young age, ruined his entire life as a slave to heroin, the plaintiff has the extraordinary criminal record of a petty thief and drug abuser. Among the many, but hardly exhaustive of them, some 30 criminal convictions, including two for criminal possession of a controlled substance, were to be (and were) offered to impeach the plaintiff’s credibility. In this context, the proposed use of the plaintiff’s heroin habit to attack his credibility further either in argument or by confrontation on the stand was determined by the court to be both cumulative and highly prejudicial. Provident discretion impelled its preclusion.
The second ground is by logical extension of the Justice’s prior determination that reference to the plaintiff’s participation in a methadone treatment program was to be precluded. Had this court denied the balance of the motion in limine, the plaintiff would have been presented with the choice of keeping his current participation in a methadone treatment program confidential, but only at the expense of foregoing the opportunity to rehabilitate his credibility in the eyes of the jury by showing that he had given up his life of moral turpitude for a life of new hope in treatment.
More importantly, the Justice’s ruling relied in substantial part on Mental Hygiene Law § 22.03 (a) with the enactment by the Legislature of a strong public policy that participation in a drug treatment program is to be confidential and that no right “shall be forfeited or abridged” on account of program participation.
It is clear to the court, therefore, to give full intended effect to this strong public policy of New York State, that even if the past use of heroin were the only basis to attack the credibility of the plaintiff, his current participation in a methadone treatment program would preclude any reference to or offer of proof of past heroin use when offered solely for the purpose of impeaching his credibility on the grounds of his immoral, vicious or criminal acts of moral turpitude like sex crimes and domestic violence.
Accordingly, as a matter of public policy, a trial court in a civil action should exercise its discretion to preclude reference to or the offer of evidence regarding the past heroin use and addiction of a witness who is at the time of his testimony participating in a chemical
dependency treatment program where such reference or offer is made solely to impeach the credibility of that witness and domestic violence.
Stephen Bilkis and Associates with its New York Heroin Lawyers can provide you legal advise on how to establish your rights. It has offices strategically located within New York Metropolitan area, including Corona, New York.