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February 25, 1994

BETTYE YEATMAN, et al., Plaintiffs,

The opinion of the court was delivered by: MILTON I. SHADUR

 On November 16, 1993 this Court issued a self-explanatory memorandum order in connection with the motions for summary judgment that had previously been filed under Fed.R.Civ.P. ("Rule") 56 by defendants Inland Property Management, Inc. ("Inland") and Joyce Levin ("Levin"). At that time counsel for plaintiffs Bettye and Reginald Yeatman ("Yeatmans") were delinquent in meeting the briefing schedule that counsel for all parties had established for themselves on the Inland-Levin motions, even as that schedule had later been modified to accommodate an extension requested by Yeatmans' counsel. Because that delinquency entitled this Court to proceed with its resolution of the motions, this Court had then drafted its opinion (the "Opinion") dealing with the motions.

 That sequence of events resulted in an unusual situation in which, by reason of the distribution of the draft Opinion to the litigants, Yeatmans (the parties that would have lost the case on the basis of the evidence then before this Court) knew exactly what matters this Court considered to be dispositive of the issues. It did not then exactly come as a total surprise when, nearly a month later, Yeatmans filed a response to the Rule 56 motions that sought to create material issues of fact in the critical areas that had been identified in the Opinion--issues that Yeatmans hoped would be enough to stave off summary judgment. Again not surprisingly, Inland then sought and obtained from this Court some added time to pursue additional discovery--mainly the supplemental deposition of Mrs. Yeatman on matters that had been raised in Yeatmans' responsive materials.

 At this point the motions have become fully briefed and are ripe for decision. After full review this Court has concluded that the things that have been advanced by Yeatmans do not rise to the level of genuine issues of material fact (despite their counsel's valiant efforts to contend otherwise). For that purpose it will be remembered that a "genuine" issue does not exist unless record evidence would permit a reasonable factfinder to adopt the nonmovants' (Yeatmans') view ( Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)), while only facts that would prove outcome-determinative under the substantive law are "material" ( Pritchard v. Rainfair, Inc., 945 F.2d 185, 191 (7th Cir. 1991)).

 Because the Opinion had accurately reflected this Court's views based on the evidence then before it, the current discussion will proceed from the Opinion as a starting point. *fn1" All that is then required is to explain why the later input from Yeatmans, although it does pose some facial disputes as to facts, does not call for any change in the result.

 As the Opinion shows (and as the parties agree), the key issue in this case is whether the clearly bias-exhibiting telephone call that someone made to Mrs. Yeatman (a call that included both the caller's inquiry as to Mrs. Yeatman's color and the caller's statement that Country Club Apartments in Arlington Heights "do not rent to blacks") was or was not placed by Joyce Levin. That had been the name by which the caller identified herself (though importantly for current purposes, when Mrs. Yeatman asked for her name the caller misspelled the last name "L-E-V-E-N"). Opinion at 3-5 spelled out in detail why all of the objective evidence before this Court compelled a "no" answer to the question whether the caller was really defendant Joyce Levin.

 What Yeatmans' counsel have now done by way of response was triggered by this paragraph in the Opinion (at page 2):

1. Mrs. Yeatman was unable to authenticate the identity of the caller so as to render her account of the contents of the telephone conversation admissible (Fed. R. Evid. 901(a) and 901(b)(5)). She could not identify Levin's voice, and she said at her own deposition that she did not know if she would recognize the caller's voice if she heard it again.

 Now Mrs. Yeatman says--although her earlier sworn testimony (Dep. 49-50) had been that she didn't know whether she could recognize the caller's voice, having had only a single brief conversation with the caller fully three years ago--that she can indeed identify Joyce Levin as the caller.

 But although it is quite true that summary judgment motions are not the occasion for any court to weigh competing evidence ( Anderson, 477 U.S. at 249), two principles negate the use of Mrs. Yeatman's currently changed testimony to defeat summary judgment:

1. Rule 56(e) limits the court's consideration of evidence to matters that would be admissible if this were a trial rather than a Rule 56 motion.
2. In any event, courts are not obliged to credit everything that a party proffers in response to a Rule 56 motion.

 Admissibility of Mrs. Yeatman's Current Testimony

 Voice identification is a means of introducing into evidence the contents of a telephone conversation (assuming that all other requirements of admissibility are met). Both common sense and experience teach that such identification--based as it is on an aural perception obtained over the telephone wires rather than in person--is ordinarily more difficult to make, and is less reliable, than eyewitness identification. If anything, then, this opinion gives Yeatmans (as the proponents of such evidence) a considerable benefit of the doubt when it applies the accepted tests for admissibility of eyewitness identification to Mrs. Yeatman's purported telephone voice identification of Levin. Nonetheless this Court will proceed to do just that.

 As for the admissibility of eyewitness identification, the seminal decisions remain Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972) and Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). Under those cases, which applied a constitutional test to determine whether evidence of that nature should be admitted or excluded, the first inquiry is whether an impermissibly suggestive procedure was used in obtaining the out-of-court identification ( Neil, 409 U.S. at 199). If the result of that inquiry is that the procedure has failed the suggestiveness test, the key inquiry then becomes whether the identification is nonetheless reliable--as Manson, 432 U.S. at 114 put it in the criminal justice context:

We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers. 409 U.S. at 199-200. These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the ...

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