• How to Undress A Wolf in Sheep's Clothing: The Intersection between F.R.E. 404 (B) and Claims of Emotional Distress against Police
  • March 13, 2012 | Author: Richard B. Levy
  • Law Firm: Johnson & Bell, Ltd. - Chicago Office
  • Those who defend police in civil rights suits often complain that plaintiffs are afforded all the protections of a defendant in a criminal trial.  As a general proposition, the plaintiffs’ prior criminal histories, including felony convictions, are often deemed inadmissible even though under F.R.E. 609(a)(1):

    “evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect”

    An option is to seek admission of other bad acts under F.R.E. 404(b).  Evidence of other crimes, wrongs, or acts is not admissible to show propensity, but “may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . .” Admission is based on the following factors:

    1. the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime charged;
    2. the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue;
    3. the evidence is sufficient to support a finding that the defendant committed the similar act; and
    4. the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

    United States v. Moore, 531 F.2d 496, 499 (7th Cir. 2008)

    Mostly courts encounter this issue in drug cases where a criminal defendant arrested in possession of illegal drugs claims to be a hapless bystander.  The government then seeks to introduce evidence of other illegal drug transactions by the accused to show knowledge, intent and absence of mistake; often times with success.  With a little creativity, an analogy can be drawn between the criminal defendant who portrays himself as the innocent bystander and the civil rights plaintiff who likewise is all too familiar with the criminal justice system, but falsely portrays himself before the jury as the innocent victim . . . a “babe in the woods.”

    Litigants overreach.  The civil rights plaintiff routinely exaggerates the severe mental anguish suffered at the hands of police; “haunted” by police conduct even in instances where the event was short-lived or time in custody was minimal.  Often other family will reinforce the plaintiff’s claim of on-going emotional trauma.  Unfortunately, such plaintiffs feel emboldened to play up their innocence and naïveté when a judge has already ruled that the plaintiff’s prior criminal conviction(s) are inadmissible.  No stranger to law enforcement, the plaintiff nonetheless testifies to being emotionally crushed by this one experience.  The plaintiff will claim anguish to the present; and it is this claimed damage that will present the defense with opportunity.  Is it reasonable that the plaintiff attributes all mental/emotional woes to this singular fleeting experience with police given his many prior bad acts, which might include a felony conviction and a period of incarceration?  The answer lies largely with the district court whose decision to allow 404(b) evidence is given great deference, subject to review only for abuse of discretion.  Id.

    Remember that the 7th Circuit has found that aspects of a person’s criminal background may be admitted where the plaintiff has put his emotional state in issue.  Gora v. Costa, 971 F.2d 1325 (7th Cir. 1992).  (Plaintiffs testified to distress and continuing fear of police and the district court permitted impeachment with evidence that one plaintiff was incarcerated on unrelated charges.  The 7th Circuit ruled the court did not abuse its discretion in determining that the probative value of the evidence outweighed the risk of prejudice.)

    Similarly, the 7th Circuit determined that the district court abused its discretion by excluding “other crimes” evidence in a wrongful death case filed by decedent’s son.  The court reasoned that “[w]hen the law makes damages depend on matters such as the emotional tie between mother and son, the defendant is entitled to show that the decedent’s character flaws undermined the quality of advice and support [plaintiff] could have provided.”  Cobige v. City of Chicago, 651 F.3d 781, 785 (7th Cir. 2011).  More plaintiff friendly circuits have likewise concluded that other bad acts resulting in police intervention may be probative of the nature and extent of claimed damages.  Boyd v. City of San Francisco, 576 F.3d 938 (9th Cir. 2009).  The chances of reversal on appeal can be minimized if the other crimes’ evidence is followed by a limiting instruction that the jury is to consider the evidence only as it relates to the plaintiff’s claim of emotional distress.