United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SIDNEY I. SCHENKIER, Magistrate Judge.
Plaintiffs in this case assert violations under federal law against six Chicago police officers stemming from an encounter on April 7, 2010, which occurred while the defendant officers were in the process of executing a search warrant for the second floor and basement apartments of 170 North LaPorte in Chicago. A jury trial is set to commence on February 17, 2015. During a final pretrial conference on January 14, 2015, the Court ruled upon all but three of the parties' contested motions in limine. The remaining motions in limine, as narrowed by the discussion on the record during the pretrial conference, are as follows: (1) Plaintiffs' Motion in Limine No. 4, which seeks to bar evidence of certain convictions of Jacqueline Williams; (2) Plaintiffs' Motion in Limine No. 12, which seeks to bar defendants from offering exigent circumstances as a basis for entering the first floor apartment at 170 North LaPorte without a search warrant; and (3) Defendants' Motion in Limine No. 13, which seeks to bar evidence of judgments of civil liability against Officers Fico and Hertko. The motions are fully briefed, and for the reasons set forth below, the motions are granted in part and denied in part.
Plaintiffs' Motion in Limine No. 4 seeks to bar defendants from offering evidence (in the event she testifies) of Jacqueline Williams's three prior felony convictions for possession of controlled substances (doc. # 149: Defs.' Mem. at 2). The most recent conviction was in 2006, while two earlier convictions occurred in 2001 and resulted in concurrent five-year prison sentences imposed in January 2002 (Id. ). Defendants maintain that the evidence is relevant not just to impeach Ms. Williams's credibility more generally, but also to provide the basis for them to argue "that it is not reasonable for a person, whom [sic] was the target of a search warrant, to appear on the scene, knowing that she had felony convictions, knowing that if she were discovered, she would be arrested if there was contraband recovered from the home" (Id. ). Defendants also argue that this evidence will allow them to rebut any irrelevant testimony Ms. Williams may seek to offer that "attempt[s] to imply some impropriety by Defendant officers in that [she], as the target of the search warrant, was on scene and despite approaching the home, was not arrested by Defendant officers" (Id. ). Plaintiffs oppose the motion and seek to bar the evidence on the basis that the convictions are substantially more prejudicial than probative under the balancing analysis required by Federal Rule of Evidence 403 (doc. # 155: Pls.' Resp. at 1-2).
Federal Rule of Evidence 609 provides the framework for determining the admissibility of prior criminal convictions for the purpose of impeaching a witness's character for truthfulness. Under Rule 609(a)(2), a conviction must be admitted (whether a felony or misdemeanor) if the elements of the offense "require proving - or the witness's admitting - a dishonest act or false statement." Defendants do not argue that Ms. Williams's convictions for possession of a controlled substance meet that standard. Nor would such an argument have any merit. See Coles v. City of Chicago, No. 02 C 9246, 2005 WL 1785326, at *1 (N.D. Ill. July 22, 2005) ("Possession of a controlled substance... does not involve dishonesty or false statement").
Under Rule 609(a)(1)(A), any felony conviction of a witness not involving a dishonest act or false statement also must be admitted into evidence in a civil case, unless (a) the danger of unfair prejudice substantially outweighs the probative value of the evidence under Rule 403, or (b) the witness's conviction or release from confinement (whichever is later) occurred more than 10 years ago. If the conviction of period of confinement ended more than 10 years ago, the Court will admit the conviction only if "its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." Fed.R.Evid. 609(b)(1).
In deciding whether convictions for drug possession are admissible, we first consider their probative value. Here, we find a tension underlying Rule 609(a)(1) with respect to the probative value of convictions that do not involve dishonesty or false. On the one hand, one purpose of the 1990 amendments to Rule 609(a) was to "resolve an ambiguity as to the relationship of Rules 609 and 403 with respect to impeachment of witnesses other than the criminal defendant." Advisory Committee Notes to 1990 Amendments to Rule 609. As amended in 1990 (and as constituted today), Rule 609(a)(1) "reflects a judgment that decisions interpreting Rule 609(a) as requiring a trial court to admit convictions in civil cases that have little, if anything, to do with credibility reach undesirable results." Id.
On the other hand, "[t]he idea underlying Rule 609, whether right or wrong, is that criminals are more likely to testify untruthfully." Gora v. Costa, 971 F.2d 1325, 1330 (7th Cir. 1992). If that was not the case, there would be never be any reason to consider the admissibility of convictions that do not involve crimes of dishonesty or false statement. And, Rule 609(a)(1) plainly contemplates that there will be times when such convictions are admissible, as Rule 609(a)(1) says that they "shall" be admitted subject to Rule 403.
Recognizing this tension, we conclude that Ms. Williams's drug conviction has some (albeit limited) probative value. Defendants' arguments do not persuade us that the convictions have any heightened relevance in this case. We find unconvincing the argument that the convictions are relevant to show that Ms. Williams did not appear on the scene as claimed because, as a felon, she feared she would be arrested if contraband were recovered from her apartment. Defendants have offered no reason why she would not fear arrest if contraband were found in her house, irrespective of her criminal record. And, to the extent that defendants argue that allowing the convictions into evidence is relevant to rebut irrelevant evidence that Ms. Williams might seek to offer, the answer is for defendants to object at trial to the admission of the irrelevant evidence.
Having found the drug possession convictions of limited relevance, we now consider the question of whether unfair prejudice would result from admitting them. We consider separately the 2006 and 2002 convictions.
This Court has previously stated that "Rule 403 does not mandate (or even allow) the exclusion of evidence merely because it is prejudicial; it is only a showing of unfair prejudice substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403." Jones v. Sheahan, Nos. 99 C 3669, 01 C 1844, 2003 WL 22508171, at *5 (N.D. Ill. Nov. 4, 2003) (citing Young v. Rabideau, 821 F.2d 373, 377 (7th Cir. 1987) (emphasis in original)). For the reasons we have given, Ms. Williams's 2006 drug possession conviction has some general probative value on credibility. Defendants have offered nothing that persuades us that the degree of the probative value is anything other than limited.
That being said, limited probative value is not the same as no probative value. Rule 403 does not permit the exclusion of probative evidence unless the probative value of that evidence is substantially outweighed by its unfair prejudice. Evidence of a conviction for possession of drugs does not carry "the same potential for inflaming the jury" as does evidence of an armed robbery conviction. See Jones, 2003 WL 22508171, at *5. We recognize that evidence of a drug conviction (or any other conviction, for that matter) "may diminish a witness's credibility and image in the eyes of a jury. [But, i]f that alone were enough to exclude a conviction, then no convictions would be admitted under Rule 609(a)(1)." Id. We conclude that there is no risk of unfair prejudice that substantially outweighs the probative value of Ms. Williams's 2006 drug conviction.
Ms. Williams's January 2002 convictions require a different analysis, because they occurred more than 10 years ago. Defendants point out that Ms. Williams received concurrent five-year sentences on those offenses, presumably to suggest that was not released from prison until January 2007 and thus her confinement did not end more than 10 years ago. But, that clearly was not the case, since Ms. Williams picked up another conviction in 2006 and thus had already been released by then.
More importantly, defendants do not disclose precisely when Ms. Williams was released from prison on the sentences. That is a critical omission because, under the possession offenses for which Ms. Williams was convicted, the time she actually was required to serve on her sentences was eligible for reduction through good time credits earned while in prison. See 730 ILCS 5/3-6-3(a)(2.1) (West 2004). In addition, we do not know whether Ms. Williams was in custody prior to the conviction, which, if so, would be time further credited ...