PAST-ACTS EVIDENCE IN EXCESSIVE FORCE LITIGATION.

• Author: Stone, James

ABSTRACT

Myriad obstacles prevent victims of police violence from vindicating civil claims against the officers who have harmed them and the cities which have failed them. Though these plaintiffs face legal hurdles even getting into court, this article explores an unusual evidentiary imbalance that occurs for those few plaintiffs who do make it to trial. A confluence of constitutional law, the Federal Rules of Evidence, and judge discretion allows juries to hear highly prejudicial information about plaintiffs 'pasts--including drug use and past criminal behavior--while omitting probative evidence of officers 'past misconduct.

This article critiques how courts' interpretations of the "objective reasonableness" standard of Graham v. Connor, 490 U.S. 386 (1989), paired with Rule 404(b) of the Federal Rules of Evidence, cause judges to mistakenly hold certain officer misconduct evidence irrelevant and thus inadmissible at trial. The article then discusses the comparative ease with which many judges admit evidence of a plaintiff-victim's past drug use, criminal activity, encounters with police, and gang affiliation under strained 404(b) arguments. After an analysis--and criticism--of these legal arguments, this article advocates for multiple solutions. First, it discusses how certain officer misconduct records may be relevant notwithstanding obstacles posed by objective reasonableness jurisprudence. Then, it suggests that judges, when applying Federal Rule of Evidence 403's balancing test to determine the admissibility of police misconduct records, take a more nuanced account of the prejudice victims ofpolice violence face from skeptical juries and the inherent trust society places in law enforcement. Third, the article proposes an amendment to Rule 404(b), adopting a stricter balancing test for the admission of certain past-acts evidence about plaintiffs in 42 U.S.C. [section] 1983 litigation alleging excessive force.

Finally, the article discusses how plaintiffs' and officers' pasts surface in the context of impeachment. Extrinsic evidence of plaintiff-witnesses criminal records is easily admissible under Rule 609 of the Federal Rules of Evidence; contrarily, a finding that a testifying officer has falsified reports or fabricated evidence, reported by an independent civilian complaint review board under a preponderance or clear and convincing evidence standard of proof is not. This article recommends various changes to the rules of impeachment to level the playing field in the credibility struggle between plaintiffs and defendants. The article suggests either limiting the admissibility of testifying plaintiffs' criminal records in excessive force litigation, or, contrarily, extending Rule 609(a)(1)(B)-which automatically admits evidence of criminal records for crimes that involved dishonesty--to similar findings about a testifying officer by a civilian complaint review board.

TABLE OF CONTENTS I. THE POLICE MISCONDUCT LEGAL LANDSCAPE A. Structural Imbalances Unique to Cases Involving Officer Misconduct 1. Constitutional Barriers 2. Procedural Barriers and Credibility Contests 3. Cities' Unique Protections B. Changing Times II. EVIDENTIARY ISSUES AND PROPOSED SOLUTIONS A. Discovery and Evidentiary Dissonance in Joint Officer Municipality Litigation 1. Police Misconduct Records and Reports 2. Trial Bifurcation B. Relevance 1. Evidence Implying an Officer's State of Mind or Knowledge. 2. Evidence of Things Unknown to an Officer C. Rule 403: Balancing D. Rule 404: Past-Acts Evidence 1. Officers and Municipalities 2. Plaintiffs and Decedents E. Impeachment Evidence CONCLUSION INTRODUCTION

Imagine that a police officer responds to an anonymous call reporting a suspicious vehicle parked on the street. The officer arrives to find a woman and man sleeping in a van. He taps on the window and shines a flashlight inside, startling the occupants awake. In the ensuing haze, the woman turns the ignition and confusedly backs up the car at a snail's pace of three miles per hour. No one lies in the reversing car's path, but the officer shoots thirteen bullets at the driver anyway, killing her. At the officer's trial, should the jury learn that this driver was high at the time; that she had a criminal record; that there was an illegally possessed firearm in the car; or that the car was reported stolen, if the officer knew none of these things when he opened fire?

Imagine another police officer, who, effecting an arrest, chases after a fleeing teenage suspect. The teenager hops a fence and, running with his back to the officer (who now stands and watches him through the fence), clutches at his loose, baggy jeans to keep them from falling off. He is unarmed. The officer shoots him in the back, killing him. In subsequent civil litigation, the officer claims he thought the boy was reaching for a gun when he grabbed with both hands at his baggy jeans. In determining whether the officer's actions were reasonable, should the jury learn that the officer had recently shot a different fleeing suspect in similar circumstances, making the same dubious (and incorrect) judgment that the suspect was grabbing at a gun and not trying to keep his pants from falling off?

No one should be defined by the worst thing they have done. Indeed, "[i]n a very real sense a defendant starts his life afresh when he stands before a jury." (1) Accordingly, the Federal Rules of Evidence erect certain careful barriers to letting evidence of a party's untoward past creep into trial. Essentially, evidence of a party's past cannot be used to besmirch their character or convince a jury that, because they acted poorly in the past, they likely acted poorly in the present case. (2) Though a past bad act might have some bearing on someone's present acts, "[t]he natural and inevitable tendency of the tribunal ... is to give excessive weight to the vicious record of crime ... and either to allow it to bear too strongly on the present charge, or to take the proof of it as justifying a condemnation irrespective of guilt of the present charge." (3)

However, so-called past-acts evidence is not barred altogether. Instead, it comes into trial in two primary ways. The first is that someone's past acts can be admitted to prove something other than their propensity to act a certain bad way. Rule 404(b) of the Federal Rules of Evidence thus allows judges to admit evidence of one's past if it goes toward something other than propensity, including: "motive, opportunity, intent, preparation, plan, knowledge, identify, absence of mistake, or lack of accident." (4) The second way such evidence enters trials is that testifying witnesses may be impeached with past-acts evidence showing that they are untruthful. (5) Judges face the difficult task of balancing this type of evidence's probative value for non-propensity purposes with its obvious potential to prejudice a jury.

But in civil litigation against officers for excessive force, a unique confluence of constitutional law, evidence law, and judicial discretion has created inequities in the admissibility of past-acts evidence. Inquiries into defendant officers' uses of force are increasingly narrowed to split-second decision-making, such that evidence of their pasts is rarely admissible for the purposes described above. Contrarily, highly prejudicial information about plaintiffs--including past drug use, criminal records or acts, gang affiliation, and encounters with police--often makes it into trial under Rule 404(b), even when its relevance is attenuated. Accordingly, in the above examples, the evidence of the dead driver's past drug use and criminal possession could be admissible, (6) while the evidence of the second officer's past experiences with baggy jeans likely could not be used to show that a reasonable officer with his experience should have known better than to fire at the teenager's back.

This article explores this imbalance and proposes various reforms of the evidence rules. Part I explains the civil legal landscape for holding law enforcement and cities accountable for an officer's excessive force. (7) Part I continues by detailing the unique latticework of laws insulating law enforcement officers and their city employers from civil liability, including difficulties related to evidentiary discovery, Graham v. Connor's "objective reasonableness" standard, the doctrine of qualified immunity, and the many ways in which the circumstances surrounding excessive force--that the violence often occurs during an arrest, for example--create large credibility hurdles for plaintiffs in subsequent litigation.

Part II discusses how past-acts evidence is treated differently for defendant officers and plaintiffs and how to fix the resulting inequities in what a jury hears.

First, I explain how the objective reasonableness standard of Graham v. Connor--namely, its refusal to consider an officer's ill intent--leads some courts to exclude 404(b) evidence of officers' past misconduct as irrelevant when going toward the officer's state of mind. I also show how certain courts assume any misconduct evidence about an officer would be too prejudicial to admit at trial. I critique this assumption, and conclude that judges should be more attuned to the unique prejudices facing plaintiffs in such litigation from the get-go when applying Federal Rule of Evidence 403's balancing test to assess the possibility that the probative value of evidence of an officer's past misconduct might be substantially outweighed by a danger of "unfair prejudice." (8) Furthermore, I suggest ways in which certain 404(b) theories--especially "absence of mistake" and "knowledge"--can be marshalled in support of admitting such evidence.

Second, I discuss how evidence of a plaintiffs past creeps into these cases under dubious Rule 404(b) theories. Most notably, judges often admit evidence of a plaintiffs past wrongdoing, even if unknown to the officer at the time...