Martin A. Schwartz ()
The federal courts are faced with an ongoing stream of 42 U.S.C. §1983 civil rights complaints asserting Fourth Amendment claims against law enforcement officers. These claims commonly challenge arrests, searches and use of excessive force, and they often generate sharp factual disputes. Because the credibility of plaintiff and officer are so important, the trial judge’s rulings as to permissible impeachment can be a game changer. My purpose here is to focus on recent federal court decisions concerning impeachment by conviction and by “immoral acts” in §1983 police misconduct cases.
Many §1983 plaintiffs who assert claims against law enforcement officers have had prior encounters with law enforcement authorities. “[C]ivil rights actions often pit unsympathetic plaintiffs—criminals, or members of the criminal class, against the guardians of the community’s safety, yet serve an essential deterrent function.”1 Section 1983 defendants frequently attempt to impeach the plaintiff’s credibility with his prior conviction(s) or “immoral conduct.”
The U.S. Court of Appeals for the Seventh Circuit has urged trial judges to be “careful to ensure that a civil rights plaintiff’s criminal past is not used to unfairly prejudice him.”2 That court recently sarcastically observed that evidence of the §1983 plaintiff’s prior conviction “provided powerful ammunition to support a jury argument that [plaintiff] Barber is a despicable human being who should not be permitted to recover from the angelic police officers being wrongfully sued.”3
Fed. R. Evid. 609 establishes various categories of “impeachment by conviction.” Briefly, Rule 609 provides that in civil cases: (1) all convictions with an element of deceit or false statement, e.g., perjury or criminal fraud, are automatically admissible to impeach; (2) felony convictions with no element of false statement or deceit, so-called “other felonies,” such as homicide or felonious assault, are admissible to impeach, subject to Rule 403′s authorization to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice; and (3) misdemeanor convictions with no element of deceit are not admissible to impeach. Convictions more than 10 years old are presumptively not admissible to impeach.
How Much Detail Is Allowed?
Assuming that a witness’ criminal conviction is admissible to impeach, how much detail concerning the conviction is the cross-examiner permitted to put before the jury? The issue is largely committed to the discretion of the trial judge, but courts traditionally have held that the cross-examiner should show only the name of the crime, and the time and place of the conviction, and not the “sordid” and “ugly” details underlying the conviction. The Seventh Circuit so held in Wilson v. City of Chicago.4 Andrew Wilson had been convicted of murdering two Chicago police officers. He alleged in his §1983 complaint that the defendant police officers tortured and brutalized him in order to obtain his confession.
The Seventh Circuit agreed with the district court that evidence of plaintiff’s murder convictions was admissible to impeach his credibility, but found that the district court abused its Rule 403 discretion in allowing evidence of the details of the murders. The court reasoned that exclusion of this evidence is necessary to prevent unfair prejudice of the plaintiff’s case. In other words, if the jury learned about these ugly details it might shift its attention from the §1983 controversy alleging police wrongdoing to the plaintiff’s wrongdoing.
A number of recent federal district court decisions give §1983 plaintiffs even more protection than that afforded in Wilson. These decisions hold that to prevent unfair prejudice to the §1983 plaintiff, defendant may inquire only about plaintiff’s status as a convicted felon,5 or to show that he has “prior felony convictions.”6
Fed. R. Evid. 608(b) codifies the common law rule authorizing so-called “immoral acts” impeachment of a witness’ credibility by showing that she engaged in “specific instances” of conduct probative of character for truthfulness. Impeachment under Rule 608(b) is subject to Rule 403. Further, because this is a “collateral” method of impeachment, extrinsic evidence is not admissible. The cross-examiner may press the witness to acknowledge the bad or immoral conduct, but if the witness does not do so the cross-examiner must “take the answer” of the witness, and may not introduce the testimony of a second witness or physical or documentary evidence.
The Seventh Circuit’s recent decision in Thompson v. City of Chicago7 presented an interesting application of Rule 608(b), and illustrates the importance of Rule 403 for this impeachment device. Terrance Thompson asserted §1983 Brady v. Maryland8 claims against several Chicago police officers based on their suppression of exculpatory evidence. Defendants’ counsel cross-examined the plaintiff about his use of aliases on 12 different occasions.
The Seventh Circuit ruled that the district court abused its Rule 403 discretion in allowing defense counsel to conduct an “exaggerated cross-examination regarding [plaintiff's] 12 separate uses of aliases ‘during an important event in your life,’” that is, when he was arrested.9 The circuit court found it understandable that the district court would allow the defense to question plaintiff about his use of aliases, because it is a proper subject of Rule 608(b) impeachment. However, it was an abuse of the district court’s Rule 403 discretion to permit defense counsel “to question [plaintiff] about the specific dates on which he used an alias and listing the particular false names that he used on each occasion.”10
The defense had other ways to impeach plaintiff with his use of aliases without unfairly prejudicing him. The circuit court explained:
There were other ways in which Thompson’s use of aliases could have been placed before the jury without doing this kind of damage. A single question about his use of an alias during his September 21, 2002 arrest would have sufficed, perhaps accompanied by a summary question confirming that he had used a false name on other occasions as well. But allowing this exaggerated cross-examination regarding 12 separate uses of aliases ‘during an important event in your life’ was an abuse of discretion.11
The circuit court found that the jury’s award of only $15,000 for more than three years of wrongful imprisonment suggested that the extensive cross-examination of the plaintiff about his use of aliases was unfairly prejudicial, that is, “the jurors may have concluded that Thompson was a chronic lawbreaker long accustomed to incarceration.”12
Police Officer Witnesses
Impeachment by conviction is rarely pertinent for police officer witnesses. Impeachment by immoral acts, however, may be pertinent. Two recent district court decisions found that a police officer’s making false statements during a police agency investigation was a proper subject of Rule 608(b) impeachment.13 This type of conduct is, of course, highly probative of credibility.
The cross-examiner, however, must have a good faith basis for inquiring about an “immoral” or “bad” act, which means some evidentiary support that the witness engaged in the conduct. In Morrow v. May,14 a §1983 police misconduct case, plaintiff on appeal challenged the trial judge’s refusal to allow his counsel, in examining Police Officer Edward Carroll, “to impeach him with evidence that an internal police investigation had concluded that accusations of his having miscounted some drug evidence…and having used abusive language and profanity…were ‘founded’ (police speak for ‘may be true’).”
The Seventh Circuit upheld the trial judge’s ruling because there was insufficient evidence to support wrongdoing by Carroll. The court put it this way:
[I]f mere peccadillos, which… are all that ‘founded’ accusations against Carroll showed—there was no evidence that he was reprimanded or otherwise punished for the incidents—could be used to impeach a witness, trials would be interminable, and only saints would avoid impeachment.15
Evidence of Arrest
A witness’ arrest is not the proper subject of impeachment. An arrest is a mere charge or accusation, and being arrested is not tantamount to engaging in a bad or immoral act. On the other hand, the conduct underlying an arrest may be the proper subject of Rule 608(b) impeachment, if it is probative of the witness’ credibility. In Barber v. City of Chicago,16 a §1983 false arrest excessive force action, the Seventh Circuit ruled that the district court erred in allowing the defendants to impeach the plaintiff by asking him if he had been arrested for “underage drinking.” Further, the circuit court found that “underage drinking” is not probative of credibility.
There is, however, a wrinkle to the arrest issue. A federal district court in 2012 ruled in a §1983 false arrest-excessive force suit, Montaya v. Shelden, that evidence of plaintiff’s prior arrests by officers of the defendant police department was relevant and admissible to show the plaintiff’s bias against that police department.17 Although not expressly codified in the Federal Rules of Evidence, the U.S. Supreme Court holds that bias is a well-recognized method of impeachment that may be employed under the Federal Rules of Evidence.18 In fact, bias is a non-collateral method of impeachment for which extrinsic evidence may be used, subject to Rule 403.19
The parties to section 1983 police misconduct actions must, of course, be given a fair opportunity to attack the credibility of the witnesses. That, of course, includes the parties who testify. Neither the plaintiff nor the officer is entitled to a free pass. At the same time the trial judge must insure that the impeachment evidence not be allowed to divert the jury from the merits of the controversy.
Martin A. Schwartz is a professor at Touro Law Center and author of a treatise on Section 1983 litigation (Aspen Law Publishers).
1. Llaguno v. Mingey, 763 F.2d 1560, 1570 (7th Cir. 1985) (en banc).
2. Gora v. Costa, 971 F.2d 1325, 1331 (7th Cir. 1992).
3. Barber v. City of Chicago, 725 F.3d 702, 717 (7th Cir. 2013). See also, ibid at 714 (“Presenting a §1983 plaintiff’s criminal history to the jury presents a substantial risk that the jury will render a verdict based not on the evidence but on emotions or other improper motives, such as the belief that bad people should not be permitted to recover from honorable police officers.”).
4. 6 F.3d 1233, 1236-38 (7th Cir. 1993) (§1983 action), cert. denied, 511 U.S. 1088 (1994).
5. Chatman v. Buller, 92 Fed. R. Evid. Serv. 465, 2013 WL 4832811 (E.D.Okl. Sept. 10, 2013).
6. Porter v. Campbell, 91 Fed. R. Evid. Serv. 882, 2013 WL 2949154 (C.D.Ill. June 14, 2013); Barlow v. Riley, 91 Fed. R. Evid. Serv. 691, 2013 WL 2295447 (C.D. Ill. May 24, 2013).
7. 722 F.3d 963 (7th Cir. 2013).
8. 373 U.S. 83 (1963).
9. Thompson, 722 F.3d at 978.
10. Id. at 977.
11. Id. at 978-79.
12. Id. at 977. The circuit court found that the cumulative effort of the Rule 608(b) error and other errors in the case were prejudicial. Id. at 979-80.
13. Martin v. Jones, 91 Fed .R. Evid. Serv. 1303, 2013 WL 3754017 (N.D. Ill. July 16, 2013); Montaya v. Shelden, 898 F.Supp.2d 1279 (D.N.M. 2012).
14. 735 F.3d 639, 645 (7th Cir. 2013).
16. 725 F.3d 702 (7th Cir. 2013).
17. Montaya v. Shelden, 898 F.Supp.2d 1259 (D.N.M. 2012).
18. United States v. Abel, 469 U.S. 45 (1984).