Court Find Former Testimony Was Admissible in Civil Rights Action Against Police Officers
Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for
Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
In terms of the “predecessor in interest” language in subsection (B), every case I’d previously seen had involved a civil action followed by another civil action. But in Bradley v. Cicero, Dunn & Moynahan, 2021 WL 294286 (D.Mass. 2021), the court found that this former testimony exception applied at a civil action preceded by a criminal action.
In Bradley, as the court noted,
Joseph Dunn and Daniel Moynahan are police officers in the Springfield Police Department. So is Christian Cicero, another defendant who the jury found not liable for any wrong. On August 25, 2015, at around 2:00 a.m., Cicero and Dunn stopped a vehicle which Daeshavana Robinson was driving. Plaintiff Daniel Bradley was seated in the back behind the passenger’s seat. Savon Tucker was next to him behind the driver’s seat. In the front passenger seat was Barbara Murphy. Cicero and Dunn radioed for backup and Moynahan arrived on the scene.
The encounter ended with a physical altercation between Bradley and the officers. Bradley was later charged with assault and battery on a police officer and resisting arrest, and his companions, Robinson and Tucker, testified at that trial. Bradley then brought a civil action on various counts of civil rights violations against Dunn and Moynahan, leading to the jury awarding “damages of $180,000 against Dunn and $45,000 against Moynahan, including both compensatory and punitive damages.”
After the verdict, Dunn and Moynahan appealed, claiming the court improperly allowed Bradley to introduce the former testimony of Robinson and Tucker when they were unavailable at the civil trial. The United States District Court for the District of Massachusetts disagreed, concluding
that the prior trial testimony satisfied Federal Rule of Evidence 804(b)(1)(B) as being offered against a party who had a predecessor in interest with an opportunity and a similar motive to develop that testimony. In prosecuting a charge of assault and battery on a police officer, “in circumstances where the evidence supports a claim of excessive or unnecessary force by police and the concomitant right to self-defense,” “the Commonwealth must prove beyond a reasonable doubt that the police did not engage in excessive force, as well as that the defendant did not act in self-defense.”…“Under the resisting arrest statute and general law, a person has a right to resist by reasonable force an arrest carried out by police with excessive or unreasonable force….”…If there is evidence of excessive or unnecessary force by police in making an arrest, again it is the Commonwealth’s burden to prove beyond a reasonable doubt that the police did not use such force….In light of these issues, the Commonwealth had an interest and motive to thoroughly cross-examine Robinson and Tucker regarding the officers’ treatment of Plaintiff and Plaintiff’s behavior, given both witnesses testified that the officers had aggressively grabbed Plaintiff out of the car without first asking and slammed him against the car. That is evident in the cross-examination the Commonwealth in fact undertook: undermining the credibility of their testimony, whether by the fact they had been drinking or that they did not have a clear view of Plaintiff or Defendants, and pointedly eliciting what admissions it could of actions by the officers the witnesses did not in fact see. The similarity of the underlying factual issues, and of the motive the Commonwealth and Defendants had in developing adverse testimony on those issues, fulfills the requirements of Federal Rule of Evidence 804(b)(1)(B). The reading of Robinson’s and Tucker’s testimony therefore fell within an exception to the exclusion of hearsay and does not warrant a new trial.
-CM