The Set Up: Northern District of Illinois Finds Former Testimony Exception Applies in Malicious Prosecution Case
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.
Last month, I posted an entry an entry about a case in which the Supreme Court of Ohio found that asbestos manufacturers were not predecessors in interest to H.J. Heinz Company in a case in which a Heinz employee first sued the manufacturers and then sued Heinz. Did the United States District Court for the Northern District of Illinois reach a similar conclusion in Fields v. City of Chicago, 2014 WL 477394 (N.D.Ill. 2014)?
In Fields, Nathson Fields was prosecuted, convicted, sentenced to die, and subsequently acquitted for the 1984 murders of Talman Hickman and Jerome Smith. Fields thereafter sued the City of Chicago and a number of Chicago police officers, including David. O’Callaghan, asserting claims under 42 U.S.C. § 1983 for violation of due process, failure to intervene, and conspiracy, and state law claims for malicious prosecution, intentional infliction of emotional distress, conspiracy, and indemnification.
At Fields’ initial criminal trial, Randy Langston testified as a witness for the prosecution during the guilt/innocence phase of trial. But then, at the sentencing phase of trial, Langston testified that he was induced by O’Callaghan “to falsely identify Fields as one of the perpetrators” of the murders. The jury still imposed a death sentence, but the testimony along with other evidence was eventually used to reverse Langston’s conviction.
With the trial on Fields’ § 1983 action approaching, the defendants moved to have Langston’s former testimony from the sentencing hearing deemed inadmissible in the event he’s unavailable to testify at trial. Specifically, the “[d]efendants argue[d] that the prosecution in Fields’s criminal case is not a predecessor in interest who had an opportunity and similar motive to develop his testimony by cross-examination.”
The Northern District of Illinois disagreed, concluding that
The Rule’s predecessor-in-interest proviso does not require privity or some other form of legal relationship; a like motive to develop testimony about the same material facts is sufficient. See, e.g.,Lloyd v. Am. Export Lines, Inc., 580 F.2d 1179, 1185–87 (3d Cir.1978)….”Circumstances or factors which influence motive to develop testimony include (1) the type of proceeding in which testimony was given, (2) trial strategy, (3) the potential penalties or financial stakes, and (4) the number of issues and parties.” United States v. Reed, 227 F.3d 763, 768 (7th Cir.2000)….The prosecutors at Fields’ trial were every bit as motivated to cross-examine him vigorously regarding his claims about O’Callaghan as the defendants are here. Langston’s testimony inculpating Fields which was a significant part of the prosecution’s case at the guilt phrase, had been given before then judge Maloney during the bench trial, so the jury hearing the penalty phase had not observed Langston’s inculpatory guilt-phase testimony. And that jury was being called upon to decide on a death sentence, a question of paramount importance to both sides in the case. When Langston testified at the penalty phase that he had been induced by O’Callaghan to fabricate inculpatory testimony, this reasonably would have been perceived to be highly significant testimony by a critical prosecution witness—a witness whose earlier testimony the jury would have a hard time weighing in a vacuum, because it had not observed that testimony. This gave the prosecution a significant motive to cross-examine Langston vigorously to try to cast doubt on his story about O’Callaghan, which is exactly what the prosecution actually did. Its motive to cross-examine Langston on that story was essentially the same as O’Callaghan’s here.
I’m generally not a huge fan of a broad reading of the predecessor in interest requirement, but I’m not sure how I feel about the broad reading in this case. It certainly appears that there was improper police inducement here, and it is apparent that Fields was wrongfully convicted and forced to face the prospect of death for a crime he didn’t commit.
That said, I’m not sure that I buy the analysis of the Northern District of Illinois. Imagine you were in the shoes of the prosecution at Fields’ murder trial. Fields has already been found guilty, and the only question at the sentencing hearing is whether Fields will be given life (imprisonment) or death. In making this decision, the jurors will balance aggravating circumstances against mitigating circumstances. Langston’s testimony doesn’t constitute a mitigating circumstance. It might call into question the validity of Fields’ conviction, but that question has already been litigated. If I were the prosecutor, I could imagine steering clear of the issue of improper inducement altogether or at least my questioning to a minimum on the issue. And I certainly wouldn’t see much merit into really delving deeply into the issue of whether there was such improper inducement. I therefore think that the motives were very different at the criminal trial than they will be at the § 1983 trial, and I’m not sure that Rule 804(b)(1) should apply.
-CM