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September 12, 1994

THOMAS COTTER, et al., Defendants.


The opinion of the court was delivered by: RUBEN CASTILLO

In this civil rights action under 42 U.S.C. § 1983, plaintiff Erick Charles ("Charles") sues seven defendant Chicago police officers (collectively, "defendants") alleging that they used excessive force during the course of his arrest on February 7, 1992. Trial is set for September 19, 1994. Presently before the court are plaintiff's motion to bar certain documents at trial and for sanctions, and plaintiff's and defendants' motions in limine to exclude certain evidence at trial.


 Charles moves to bar the use at trial of certain documents obtained informally by defendants from the Evanston Police Department after the close of discovery. The documents consist of a fifteen page incident report, a one page police department form, and a four page witness statement from an individual named Willie Etienne, all concerning an incident on September 11, 1991, in which Charles suffered injuries and was transported to St. Francis Hospital in Evanston for emergency treatment. Defendants maintain that the documents contain probative evidence of the fact that the injuries Charles claims to have suffered at the hands of the defendants on February 7, 1992, were actually incurred during the September 11, 1991 incident.

 Discovery closed in this case on June 20, 1994. The foregoing documents were obtained without subpoena or other formal means of discovery on June 28 through July 1, 1994, and were served on Charles' counsel on July 1, 1994. The documents were also listed in the parties' final pretrial order which was tendered to the court. Charles objects to the use of these documents at trial contending that they were improperly obtained by defendants' counsel after the close of discovery and that he was prejudiced thereby.

 Charles' arguments to exclude this highly probative evidence are not compelling. First, Charles emphasizes that the documents were obtained after the close of discovery. However, it does not follow from the fact that the court has set a date for the close of discovery, that all investigation into a party's claims or defenses must come to a halt on that date. The parties remain free to track relevant evidence -- including, as in the instant case, obtaining information from cooperative third parties. Therefore, the fact that the Evanston Police Department records were obtained after the close of discovery is not a sufficient ground for excluding this probative evidence, particularly where, as here, the material was provided to Charles as soon as it was obtained and well in advance of the filing of a final pretrial order. *fn1"

 Charles also emphasizes the fact that the documents were obtained by informal means not available to him. Charles speculates in his motion and reply that defendants obtained the documents informally by sending a fellow Chicago Police Officer to the Evanston Police Department who was able to obtain the documents, without following normal Evanston Police Department procedures, simply by virtue of being a fellow law enforcement officer. Charles, on the other hand, was told by the Evanston Police Department that if he wanted access to the documents he would have to subpoena them and pay a twenty-dollar fee. Thus, simply put, Charles argues that defendants enjoyed an advantage over him with respect to obtaining the documents. Significantly, Charles does not argue that he could not obtain the documents, only that he would have faced greater impediments than defendants. However, this is not a problem unique to this lawsuit. In virtually all litigation there are third-parties possessing probative evidence who are willing to volunteer the evidence to one party and not the other; the latter must resort to formal means of discovery including subpoena. Thus, Charles' protestation that defendants were able to obtain the challenged documents through channels unavailable to him, also does not justify excluding this probative evidence.

 Nor can the court conclude that Charles has suffered any prejudice because of defense counsels' conduct. Charles notes that the September 11, 1991, incident was the subject of a complaint he filed and that an internal investigation regarding the incident was conducted. Charles further notes that defendants effectively thwarted his efforts to discover the documents contained in the OPS file regarding this incident claiming that such documents were irrelevant to his section 1983 claims; and, in view of this fact, Charles argues that he is prejudiced by defendants' belated recognition of the relevance of the September 11, 1991 incident. Were it not for this court's August 10, 1994 ruling, we might agree. However, on August 10, 1994, the court granted Charles' motion for reconsideration of prior rulings denying his discovery of defendants' personnel records and disciplinary files. In view of the fact that Charles has no longer been foreclosed from reviewing the OPS files, the court cannot conclude that he has suffered any prejudice in this regard.

 The court has considered all of Charles' other contentions not specifically mentioned herein and finds them to be without merit. For the foregoing reasons Charles' motion to bar use of certain documents at trial, and for sanctions is denied.


 Federal district courts have the power to exclude evidence in limine pursuant to their authority to manage trials. Luce v. United States, 469 U.S. 38, 41 n.4, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). Guidelines governing motions in limine were recently set forth in Hawthorne Partners v. AT & T Technologies, Inc., 831 F. Supp. 1398 (N.D. Ill. 1993), as follows:

This court has the power to exclude evidence in limine only when evidence is clearly inadmissible on all potential grounds. Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy and potential prejudice may be resolved in proper context. Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded. The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine.

 Id. at 1400-01. With these guidelines in mind, we turn to the motions before the court.

 Plaintiff's motion to exclude evidence of his criminal convictions

 Pursuant to FED. R. EVID. 609 and 403, Charles moves to exclude all evidence relating to his criminal convictions, arguing that such evidence has no probative value to the issues at bar and that any probative value is substantially outweighed by the danger of unfair prejudice. As set forth below, Charles' motion is granted in part and denied in part.

 Rule 609 permits admission, subject to Rule 403, of evidence of past felony convictions for purposes of impeaching a civil witness. Under Rule 403, such evidence may be excluded where the probative value is substantially outweighed by the danger of unfair prejudice. The Seventh Circuit set forth the proper limits of the use of evidence of past felony convictions in Campbell v. Greer, 831 F.2d 700 (7th Cir. 1987), wherein the court stated that although a felony conviction may be used to impeach a witness in a civil action:

this is not to say that the opposing party may harp on the witness's crime, parade it lovingly before the jury in all its gruesome details, and thereby shift the focus of attention from the events at issue in the present case to the witness's conviction in a previous case. He may not. Essentially all the information the cross-examiner is permitted to elicit is the crime charged, the date, and the disposition.

 Id. at 707. See also Gora v. Costa, 971 F.2d 1325, 1330 (7th Cir. 1992) (noting that "all that is needed to serve the purpose of challenging the witness's veracity is the elicitation of the crime charged, the date, and the disposition"). Both Campbell and Gora involved application of Rule 609 as it read prior to its 1990 amendments. The Supreme Court held that the pre-amendment Rule 609 required "a judge to permit impeachment of a civil witness with evidence of prior felony convictions regardless of ensuant unfair prejudice to the witness or the party offering the testimony." Green v. Bock Laundry Machine Co., 490 U.S. 504, 527, 104 L. Ed. 2d 557, 109 S. Ct. 1981 (1989). The 1990 amendments to Rule 609, explicitly condition the admissibility of evidence of past felony convictions offered for impeachment of a witness in a civil action on a balancing of probative value and unfair prejudice pursuant to Rule 403.

  Rule 609 embodies "the proposition that felons perjure themselves more often than other, similarly situated witnesses." Campbell, 831 F.2d at 707. As the Seventh Circuit noted, this empirical proposition may or may not be true; nevertheless, the premise of Rule 609 "that crookedness and lying are correlated," is not for the court to question. Accordingly, the court must conclude that Charles' prior felony convictions are probative evidence of his credibility. The danger of unfair prejudice posed by cross-examination regarding a witness's prior felony convictions is significantly reduced, albeit not eliminated, by adhering to the clear limits on such examination set forth in Campbell. Thus, the court finds that the probative value of properly limited cross-examination regarding Charles' prior felony convictions is not substantially outweighed by the danger of unfair prejudice. Accordingly, defendants may cross-examine Charles as to the crime charged, the date, and the disposition (i.e., guilty or not guilty -- not length of sentence) with respect to felony convictions during the past ten years -- including his January 25, 1993 conviction stemming from his arrest on February 7, 1992. However, with respect to felony convictions more than ten years old, the court finds that the probative value of such convictions does not substantially outweigh their prejudicial effect. FED. R. EVID. 609(b). Defendants should be sufficiently able to attack the veracity of Charles' testimony by cross-examining him as to his convictions on January 25, 1993 (delivery of controlled substance), November 8, 1987 (armed robbery), and October 7, 1986 (manufacture and delivery of controlled substance) without resorting to a "piling on effect by using his older convictions. Whatever marginal impeachment effect might be added by throwing in his February 2, 1984 (aggravated battery), September 27, 1979 (armed robbery), and March 23, 1979 (burglary) convictions is substantially outweighed by the unfair prejudice of further suggesting to the jury that Charles is an evil man who does not deserve any consideration of his claims. See Davenport v. DeRobertis, 653 F. Supp. 649, 659 (N.D. Ill. 1987), modified on other grounds and aff'd, 844 F.2d 1310 (7th Cir.), cert. denied, 488 U.S. 908, 102 L. Ed. 2d 248, 109 S. Ct. 260 (1988).

 A few additional words are warranted regarding Charles' January 25, 1993 conviction arising out of his arrest on February 7, 1992. Charles pled guilty to possession of a controlled substance with intent to deliver and delivery of a controlled substance. Illinois courts treat a guilty plea as an admission by the defendant of the facts alleged in the complaint -- an admission that may be used against the defendant in subsequent proceedings. See Brown v. Green, 738 F.2d 202, 206 (7th Cir. 1984). Federal courts must give preclusive effect to state court judgments whenever the courts of the state from which the judgment was rendered would do so. 28 U.S.C. § 1738. Accordingly, this court must treat Charles' guilty plea as an admission of the facts alleged in the complaint against him; and, this admission is binding against Charles in the instant case. *fn2" While the court finds the underlying facts of Charles' arrest on February 7, 1992 to be relevant to this trial, in order to properly limit the introduction of unnecessary detail, *fn3" the court directs the parties to confer and submit a stipulation, based on the allegations in the complaint against Charles, regarding those facts.

 Plaintiff's motion to exclude testimony of Dr. Jorge Del Castillo

 Notwithstanding Charles' somewhat misleading characterization of Dr. Del Castillo's anticipated testimony, the court denies Charles' motion to exclude this testimony. It is clear to the court that defendants intend to have Dr. Del Castillo review Charles' medical records from September 11, 1991 and February 7, 1992, and draw an inference based on his specialized knowledge of emergency medicine as to whether the injuries depicted in the photographs appear to match the injuries diagnosed and treated on September 11, 1991 as opposed to February 7, 1992. Such testimony plainly pertains to scientific knowledge and will assist the trier of fact in understanding the evidence or determining a fact in issue; thus, it is proper matter for expert testimony. See O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1106 (7th Cir.), cert. denied, 129 L. Ed. 2d 838, 114 S. Ct. 2711 (1994). The court believes that the average juror would not have the ability to decipher medical records describing diagnoses and treatments and then correctly match those records ...

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