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Harris v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

February 13, 2018

SHARON HARRIS, as Special Administrator of the Estate of ANDRE LEPINAY, deceased, Plaintiff,


          Gary Feinerman Judge.

         Andre Lepinay brought this 42 U.S.C. § 1983 suit against the City of Chicago and nine Chicago police officers, alleging that they violated the Fourth Amendment by using excessive force against him when executing a search warrant at his apartment. Doc. 1. After Lepinay died, the court appointed his niece, Sharon Harris, as the special administrator of his estate for the purpose of continuing the suit. Doc. 27. Although Lepinay was not deposed before he died, he did give a sworn interview to an investigator with the City's Independent Police Review Authority (“IPRA”). Harris moves for a pretrial determination that an electronic recording of the interview is admissible in evidence. Doc. 35. The motion is granted.

         The alleged excessive force took place on October 21, 2016. Doc. 1 at ¶ 13. One week later, on October 28, Lepinay gave his sworn interview to the IPRA investigator. Doc. 35 at 2. Lepinay told the investigator that he was sitting in the living room when the officers entered, that three officers immediately “bum rushed” him, with one jabbing him in the stomach with a rifle, and that the officers then took him to the floor, with one kneeing him in the back. Id. at 4-5. Lepinay also stated that he had recently been diagnosed with advanced liver cancer and had “c[o]me home to die.” Id. at 13, 20. After the interview, Lepinay signed an affidavit in which he “sw[ore] or affirm[ed], under penalties provided by law, that the information contained in … [his] electronically recorded statement, [was] true and accurate.” Id. at 32. He filed this suit some three weeks later, on November 17, 2016, and died in April 2017. Doc. 20.

         Harris contends that the recording of Lepinay's IPRA interview is admissible under Federal Rule of Evidence 807, the residual exception to the hearsay rule. “A proponent of hearsay evidence must establish five elements in order to satisfy Rule 807: (1) circumstantial guarantees of trustworthiness; (2) materiality; (3) probative value; (4) the interests of justice; and (5) notice.” United States v. Moore, 824 F.3d 620, 622 (7th Cir. 2016) (internal quotation marks omitted). Defendants do not contest the second and fifth elements, materiality and notice. And they make no argument regarding the fourth element, the interests of justice, which they describe as “not … an element at all, but instead a statement of the policy underlying the residual exception.” Doc. 42 at 4. Defendants contest only the first and third elements, trustworthiness and probative value.


         A hearsay statement satisfies Rule 807's trustworthiness element if it has circumstantial guarantees of trustworthiness “equivalent to those inherent in the more specific [hearsay] exceptions” in Rules 803 and 804. United States v. Snyder, 872 F.2d 1351, 1354 (7th Cir. 1989). The following factors, which “are neither exhaustive nor absolute, ” are pertinent to assessing trustworthiness under Rule 807:

the character of the witness for truthfulness and honesty, and the availability of evidence on the issue; whether the testimony was given voluntarily, under oath, subject to cross-examination and a penalty for perjury; the witness' … motivation to testify …; the extent to which the witness' testimony reflects his personal knowledge; whether the witness ever recanted his testimony; the existence of corroborating evidence; and, the reasons for the witness' unavailability.

Moore, 824 F.3d at 622-23 (internal quotation marks omitted).

         The first trustworthiness factor-Lepinay's reputation for truthfulness-is inconclusive. Lepinay admitted in the interview that he possessed illegal drugs the day of the incident. Doc. 35 at 16. As Defendants recognize, however, any damage that fact does to Lepinay's credibility is counterbalanced by his unprompted, forthright admission to possession. Doc. 42 at 6. Neither party has presented any other evidence of Lepinay's reputation for truthfulness.

         The second trustworthiness factor-whether the statement was given voluntarily, under oath, subject to cross-examination and penalty for perjury-strongly favors Harris, for Lepinay's interview was given voluntarily, under oath, and subject to penalty for perjury. Doc. 35 at 32. Although Lepinay was not cross-examined by counsel for an adverse party, the IPRA investigator drove most of the conversation by asking a lengthy series of clarifying questions after Lepinay gave a brief account of the incident. Id. at 12-32.

         Defendants are correct that the interview took place in a car outside Lepinay's residence, rather than a more formal setting like a courtroom. Id. at 12. And it is true that, had Lepinay been formally cross-examined in a courtroom or at a deposition, his statements would be admissible under the Rule 804(b)(1) hearsay exception for the prior trial or deposition testimony of unavailable witnesses. See Fed. R. Evid. 804(b)(1) (excluding from the hearsay rule “[t]estimony that … was given as a witness at a trial, hearing, or lawful deposition” by a “declarant … unavailable as a witness”). But if Rule 807 required circumstantial guarantees of trustworthiness that were identical to those in Rule 804(b)(1), it would do no work; instead, the residual exception requires only “equivalent” circumstantial guarantees. Fed.R.Evid. 807(a)(1). That Lepinay gave a sworn statement under penalty of perjury and responded to many clarifying questions from someone whose job it was to investigate allegations of police misconduct helps to establish that the circumstances of his statement were equivalent to those contemplated in Rule 804(b)(1).

         Defendants object that the prospect of a perjury prosecution was illusory, given that, at the time of Lepinay's interview, no one had ever been prosecuted for making false statements to IPRA. Doc. 42 at 6-7. But Lepinay surely was unaware of the prosecution record for false statements made to IPRA. He swore in an affidavit, “under penalties provided by law, ” that the information in his statement was true and accurate, and there is no reason to think he took that oath less seriously than any other declarant. Doc. 35 at 32. Defendants also argue that Lepinay had little reason to fear a perjury prosecution because he knew that he was suffering from a terminal illness. Doc. 42 at 7. This is true, but on the whole, and as noted below, Lepinay's awareness of his dire medical condition weighs in favor of admitting his statements.

         The third trustworthiness factor-Lepinay's motivation for testifying-also favors Harris. Lepinay may have been contemplating filing this suit at the time of the IPRA interview, but there is no indication that he had no reason to think that the interview would assist him in his lawsuit. In any event, mercenary motives could not have played much of a role in his decision to speak to IPRA, or even his decision to file suit. Lepinay knew that he had terminal liver cancer, stating that he “came home to die.” Doc. 35 at 20. It is highly unlikely that, as a layperson, he realized that his interview could provide a basis for a family member to pursue his claim after his death. And while his interview is not admissible as a dying declaration under Rule 804(b)(2), both because his death was not sufficiently imminent when he gave the interview and his statements did not concern the cause or circumstances of his death, the fact that he knew he was likely to die before realizing any gain from his suit bolsters his credibility. See Mattox v. United States, 156 U.S. 237, 244 (1895) (“[T]he sense of impending death is presumed to remove all temptation to falsehood.”).

         Defendants do not dispute that the fourth and fifth trustworthiness factors-whether the statements reflect Lepinay's personal knowledge and whether he ever recanted his testimony- weigh in Harris's favor. The sixth factor weighs against Harris, as there is no corroborating evidence of the truth of Lepinay's statements. (But this works in Harris's favor on the probative value element, as explained below.) The last ...

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