known to the officer at the time of the arrest. Palmquist v.
Selvik, 111 F.3d 1332, 1339-40 (7th Cir. 1997). Evidence
discovered after the fact is not relevant to the objective
reasonableness of the officer's actions. Id. Mrs. Munley may
not be asked whether Munley actually hit her because it relates
to circumstances outside of the time frame of Carlson's actions.
However, she may testify as to what she told Carlson and to her
physical condition at the time of the arrest. Her statements to
Carlson are admissible non-hearsay because Carlson offers them to
show the effect they had on him and how he reacted to them, not
to prove the truth of the matter asserted. Fed.R.Evid. 801. For
the same reason, Carlson may testify about what Mrs. Munley told
him and what he observed about her injuries at the time of the
arrest, but any testimony that she has subsequently changed her
story about what happened is not relevant to the objective
reasonableness of Carlson's actions at the time of the arrest.
Accordingly, Carlson may not elicit testimony from Gary Bush as
to his conversations with Dawn Munley about whether Munley really
hit her or whether she lied in her deposition.
Gary Bush ("Bush") submitted an affidavit in this case in which
he said that Michelle Rossi ("Rossi"), one of Munley's witnesses,
told him that "she had entered into an agreement with Michael
Munley wherein she would support Michael Munley's story in
exchange for a percentage of any monetary amount which Michael
Munley may obtain through either settlement or judgment." (Bush
Aff. ¶ 3). Munley asks me to bar Bush from testifying about this
conversation on hearsay grounds. When a statement contains
multiple levels of hearsay, the entire statement is inadmissible
unless an exception or exclusion applies to each level.
The first statement in question is Munley's alleged statement
to Rossi that he would give Rossi a share of his recovery if she
supported his story. This is hearsay — an out of court statement
offered for the truth of the matter asserted — but it is
admissible under the exclusion for straight party admissions.
Fed.R.Evid. 801(d)(2)(A). The second statement in question is
Rossi's statement to Bush that Munley tried to bribe her. Munley
objects that this is hearsay to which no exception or exclusion
applies. Carlson argues, however, that Rossi's statement is
admissible as an adoptive admission of Munley.
Under Fed.R.Evid. 801(d)(2)(B), a statement is admissible
non-hearsay if "the party has manifested an adoption or belief in
its truth." Before admitting a statement as an adoptive
admission, I "must first find that sufficient foundational facts
have been introduced for the jury reasonably to conclude that the
defendant did actually hear, understand and accede to the
statement." United States v. Monks, 774 F.2d 945, 950 (9th Cir.
1985). Carlson offers testimony from Bush that, on September 11,
2000, after Bush submitted his affidavit on August 4, 2000,
Munley called Bush and asked him why he got involved in the case
and why he submitted his affidavit. Bush will also testify that,
after Bush told Munley that the statements in his affidavit were
true, Munley offered him a portion of his recovery from this
lawsuit to "back off" from the statements.
Munley does not object to Carlson's offer of Bush's testimony
that Munley tried to bribe Bush, and it is admissible as a
straight party admission under Rule 801(d)(2)(A). See McGaughy
v. Burlington Northern R. Co., No. 87 C 10711, 1990 WL 205923,
at *3 (N.D.Ill.Dec. 6, 1990). This exchange shows that Munley had
knowledge and understanding of the statements in the affidavit;
Munley called Bush to talk about the affidavit, so Munley must
have had an understanding of its contents. Munley's attempt to
bribe Bush into recanting the statements in the affidavit is an
accession to the truth of the statements. See McQueeney v.
Wilmington Trust Co., 779 F.2d 916, 921 (3d Cir. 1985) (holding
that subornation of perjury by a party "in
connection with its case . . . is also commonly regarded as an
admission by conduct. By resorting to wrongful devices, the party
is said to provide a basis for believing that he or she thinks
the case is weak and not to be won by fair means.") (citations
omitted); Empire Gas Corp. v. American Bakeries Co.,
646 F. Supp. 269, 274 (N.D.Ill. 1986) (holding that party's attempt to
bribe witness is relevant evidence of weakness of party's case).
When Munley attempted to bribe Bush, therefore, he adopted as his
own admission the statement in Bush's affidavit that Rossi said
that Munley tried to bribe her.
To sum up, Munley's statement to Rossi that he would share his
recovery with her if she supported his story is admissible as a
straight party admission under Rule 801(d)(2)(A). Rossi's
statement to Bush that Munley tried to bribe her is admissible as
an adoptive admission under Rule 801(d)(2)(B), which Munley
adopted when he offered Bush a bribe to back off the statements
in Bush's affidavit.
Carlson's motions in limine are GRANTED subject to the
limitations enumerated above. Munley's motion to bar the
testimony of Dawn Munley is GRANTED. His motion to bar Bush from
testifying about Dawn Munley' statements is GRANTED as unopposed.
His motion to bar Bush from testifying about Rossi's statements
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