United States District Court, N.D. Illinois, Eastern Division
SHARON HARRIS, as Special Administrator of the Estate of ANDRE LEPINAY, deceased, Plaintiff,
CITY OF CHICAGO, MATTHEW KENNEDY, DERRICK DENTON, JESUS GONZALEZ, DAVID McKEE, JAIRO VALERIANO, SHARLYN HAMPTON, RODOLFO VARGAS, BRIAN J. McENERNEY, and AYOKUNLE AKINBUSUYI, Defendants.
MEMORANDUM OPINION AND ORDER
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.
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.
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.
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
Moore, 824 F.3d at 622-23 (internal quotation marks
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.
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.
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).
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
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.”).
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.)
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