The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
After this Court's September 7, 2006 entry of the Final Pretrial Order ("FPTO") that had been jointly submitted by counsel for the litigants, each side--as directed--tendered a set of motions in limine: 14 on behalf of plaintiff Timothy Couch ("Couch") and seven on behalf of defendants Mitchell Davis ("Davis") and Emir King ("King"). Defense counsel then responded to all the plaintiff's motions, while the attached October 27 letter from plaintiff's counsel declined to file any response to the defense motions. This memorandum opinion and order will address the motions in as brief compass as possible.
At the outset it should be noted that defense counsel--repeatedly and quite properly--criticizes Couch's counsel's persistent reliance on Illinois state court authority rather than on federal rules and caselaw. In that respect, Couch's lawyer should of course be aware that all evidentiary matters are governed instead by the Federal Rules of Evidence ("Rules").
That said, however, it is true that on some matters--certain elements of damages, for example--the universality of the principles involved makes Illinois caselaw (like caselaw elsewhere) instructive, though not controlling. To that extent the following discussion may draw on such state court caselaw. Now on to the motions themselves.
Motion 1 seeks to bar evidence of Couch's conviction for drug possession some years back on the ground that it is not a crime of "dishonesty" and involves no "false statement" (see Rule 609(a)(2)). In response, defense counsel is quite correct that Rule 609(a)(1) renders evidence of such prior convictions admissible--although that is said to be "subject to Rule 403." But the vigor with which defense counsel urges the matter calls to mind our Court of Appeals' caveat in Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987):
All 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.
During this Court's Extended Tenure on the Judicial
Conference's Advisory Committee on the Rules of Evidence, including three years as its Chairman, the Committee had serious concerns as to the potential for "unfair prejudice" (Rule 403) that Judge Posner has identified in the just-quoted admonition. In this instance the jury will hear a good deal of much-more- closely-related evidence adverse to Couch (more of this later), so that the heaping of Pelion upon Ossa by adding evidence of an earlier conviction--one that really bears no particular link to his credibility vel non--does bring Rule 403 into play. Accordingly Motion 1 is granted.
Motion 2 asks that evidence of the events leading up to Couch's arrest, as well as the testimony of Nicholas Christou ("Christou"), be withheld from the jury. On that score, however, the pre-arrest events are closely linked and plainly relevant to Couch's excessive force claim, and Christou is described in defendants' response as a far more significant occurrence witness than the motion represents. Motion 2 is denied.
Motion 3 would seek to have evidence of Couch's alcohol consumption and drug ingestion barred from the trial. Again defendants' response is far more convincing--without that evidence, defendants' presentation of their plausible theory of the case would be seriously impaired.*fn1 Motion 3 is denied.
Motion 4 seeks to exclude police reports, this time mistakenly claiming inadmissibility pursuant to 625 ILCS 5/11-412. Although defense counsel is entirely correct in pointing to the Rules instead, this Court sees no predicate for the report authored by King to go to the jury. After all, King will be testifying himself, and his version of events will be conveyed to the jury directly rather than through a summary on paper (though his report may perhaps be used by him if necessary to refresh some failed recollection). In sum, this Court does not subscribe to defendants' position that the motion is premature--instead Motion 4 is granted, subject to possible limited review of the matter depending on how the trial plays out.
Motion 5 asks that any "awards or accommodations" (sic--counsel must mean "commendations") received by King, as well as the possible absence of prior police misconduct charges against him, be excluded. Defense counsel's response asserts no objection "provided the motion applies equally to any prior acts evidence against the defendants." This Court grants Motion 5 in its more limited form, without any such proviso--it is too early to determine whether defense counsel's quoted hedge applies.
Motion 6 asks to bar Couch's post-occurrence arrest and conviction on burglary charges, resulting in a probationary sentence. What was said earlier as to Motion 1 applies here as well--the balancing directed by Rule 403, under ...