The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Although this Court addressed the post-Final-Pretrial-Order ("FPTO") motions in limine filed by defendants promptly after they were brought to issue, a regrettable breakdown in its system of follow-ups on motions pending in cases on its calendar has resulted in the motions in limine by plaintiff Kenyon Taylor ("Taylor") having lain fallow for some months. Fortunately that has not prejudiced the parties--this action's place in the lineup of cases scheduled for trial has caused it to be scheduled for trial next February. This memorandum opinion and order corrects the oversight.
To begin, defendants do not object to Taylor Motions 1, 7 and 8. Each is granted.
Taylor Motion 2 has received special treatment from defendants--a separate response. Although this Court is well aware of the problems that have rarely arisen in this District Court as a result of the nondisclosure by an occasional juror whose voir dire responses have concealed some criminal background, it has never encountered a problem in that respect in its more than three decades on the bench. In law as in life we seldom shape our rules or general practices to respond to such rarely encountered aberrations.
Importantly, this Court's method of jury selection--one that does not follow the struck jury model, instead conducting voir dire only of prospective jurors as they are seated in the jury box (both the original impaneled set and other persons who are called individually to replace those who are excused for cause or through peremptory challenges)--would generate a good deal of waste time and effort in obtaining the information piecemeal and providing it to both sides (as is needed to preserve the essential level playing field for the parties).
If a system were to be devised to screen all prospective jurors at the source--before jurors are sent to courtrooms for possible service--that would both avoid such delays in the courtroom and provide the litigants with that level playing field. This Court might then view the situation differently, but as matters now stand Taylor Motion 2 is granted.
Taylor Motion 3 seeks to bar defendants' use of his mugshot photo or other photos taken by Chicago Police Department evidence technicians. Defendants respond that during the deposition of Joseph Welborn he identified Taylor from a mugshot--but there would seem to be no reason to challenge his identification of Taylor (whom he testified he had seen around the neighborhood). Hence the use of the mugshot--which of course poses problems under Fed. R. Evid. ("Rule") 403--would be wholly unnecessary. Taylor Motion 3 is granted.
Taylor Motion 4 would bar testimony that he was arrested in a "high crime area." Use of that pejorative characterization as a basis for police actions is a sort of "guilt by geography"--instead the charged officers' conduct vis-a-vis Taylor ought to be judged by their own contacts with him (or perhaps their own knowledge of him).
As chance would have it, just last month our Court of Appeals had occasion to deal with a case in which this Court's colleague Honorable Joan Lefkow had granted a like motion (Willis v. Lepine, No. 11-2224, 2012 WL 2989253, at *9-*11 (7th Cir. July 23)). Notably the Court of Appeals raised no issue or problem as to Judge Lefkow's ruling as such, focusing instead on instances where the plaintiffs in that case charged defense counsel with having violated the ruling. This Court similarly grants Taylor Motion 4, so that the case may proceed without any such characterization of the area where events took place.
Taylor Motion 5 first seeks to bar any reference to Chicago Police Department arrests that did not result in convictions. Although defense counsel's response memorandum devotes seven pages to Motion 5, not a word is said about arrests (quite understandably, in light of the uniform caselaw authority on that subject). That component of Motion 5 is granted.
As for Taylor's convictions, however, more discussion is needed. When Taylor testifies, Rule 609(a)(1) expressly makes his criminal record fair game for impeachment purposes (unless overridden by Rule 403). That has long been the rule, even though logic would seem to limit such impeachment to the category described in Rule 609(a)(2): "if the court can readily determine that establishing the elements of the crime required proving--or the witness's admitting--a dishonest act or false statement."
In terms of just what can be brought before the jury, the caselaw does not permit what Judge Posner described in Campbell v. Greer, 831 F.2d 700, 707 (7th Cir. 1987) as "harp[ing] on the witness's crime, parad[ing] it lovingly before the jury in all its gruesome details, and thereby shift[ing] the focus of attention from the events at issue in the present case to the witness's conviction in a previous case." But in this instance defense counsel are right in arguing at their Mem. 5-6 that the underlying circumstances of Taylor's conviction stemming from a May 16, 2007 arrest qualify under Rule 404(b).
That being the case, the just-described conviction can do double duty, serving both substantively and as a source of impeachment. This Court will not however grant defense counsel's effort to introduce Taylor's other felony drug conviction dated July 31, 2006, which under the circumstances would not only be duplicative but would also equate sufficiently to forbidden propensity evidence to bring Rule 403 into play.*fn1
Next Motion 5 also challenges the admissibility of prior felony convictions of witnesses, as to which this Court contemplates applying Rule 609 unless overridden by Rule 403--a determination that will have to be made on a case-by-case approach at trial. Lastly, Taylor seeks to bar reference to the alleged use of alias names--a matter that may or may not be probative in determining ...