EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, August 22, 2011

No (P)reservations: 7th Circuit Finds Plaintiff Failed To Preserve Impeachment Issue In Section 1983 Appeal

Federal Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

When, at trial, the court prevents the admission of evidence and there was no prior definitive ruling, the adverse party must make an offer of proof in compliance with Rule 103(a)(2). And that was a problem for the plaintiffs in Duran v. Town of Cicero, 2011 WL 3444353 (7th Cir. 2011).

In Duran

scores of individual plaintiffs against 17 police officers and the Town of Cicero, Illinois, alleging federal civil-rights violations and various state-law torts. The claims arose out of an ugly confrontation between officers of the Cicero police force and nearly 100 partygoers—most of Mexican descent—who were celebrating a baptism at a Town of Cicero home. Responding to neighborhood complaints about the party, officers arrived on the scene and first attempted to quiet and later to disperse the crowd. Some of the revelers objected to these efforts, and after a period of escalating tension between police and the party guests, a full-blown melee ensued. By night's end many people—officers and civilians alike—were injured, and seven people were placed under arrest.


78 of the partygoers filed suit against 17 officers and the Town alleging a raft of federal and state causes of action, including claims under 42 U.S.C. § 1983 for use of excessive force, false arrest, and deprivation of equal protection, and state-law tort claims for battery, malicious prosecution, hate crimes, and evidence spoliation.

After the jury returned a verdict in favor of 23 of the plaintiffs against 6 of the officer and the town, both sides cross-appealed. Part of the basis for the plaintiffs' cross-appeal was that the district court erred by precluding them from impeaching one of the officers, William Peslak, through his conviction for an unrelated civil-rights conviction under 18 U.S.C. § 242.

Before trial, Peslak moved in limine to exclude evidence of this conviction at trial, and the plaintiffs countered that it was admissible under Federal Rule of Evidence 609(a), which provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and 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 to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.



The district court granted Peslak's motion to exclude his civil-rights conviction in an omnibus order that covered many other evidentiary issues. The judge made it clear, however, that this ruling was tentative. The order specifically explained that "[d]uring the course of the trial, the parties may move to reconsider any of these rulings if they believe the evidence warrants reconsideration."


And, indeed, the plaintiffs did move for reconsideration at trial, but they only claimed that the conviction was admissible under Federal Rule of Evidence 609(a)(2), not under Federal Rule of Evidence 609(a)(1). According to the Seventh Circuit, this meant that the plaintiffs failed to preserve the issue of whether the conviction was admissible under Federal Rule of Evidence 609(a)(1). According to the court,

We have held that where the district court makes a tentative or conditional evidentiary ruling before trial, the adversely affected party must renew its objection at trial in order to preserve the issue for appeal....The plaintiffs did raise the issue of Peslak's conviction at trial, but only argued that it was admissible as a crime of dishonesty. Any argument that Peslak's conviction was admissible under Rule 609(a)(1) is therefore forfeited. The district court properly excluded evidence of Peslak's conviction under Rule 609(a)(2) because the elements of his crime did not include acts of dishonesty or false statements

This meant that the Seventh Circuit could only reverse for plain error, and it refused to do so because "[t]he plaintiffs d[id] not advance a plain-error argument on this point."



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