The Limits On Limiting Jury Instructions

In civil rights suit, testimony that a prior arbitration of the dispute (regarding the plaintiff's private political activities) had decided that the plaintiff had been suspended without cause, was not admissible as it was not relevant under FRE 401 and was unfairly prejudicial under FRE 403; case reversed and remanded even though the trial court also limited the use of the evidence to issues of damages and not liability, in Arlio v. Lively, 474 F.3d 46 (2d Cir. Jan. 17, 2007) (Nos. 05-5779-cv(L); 05-5998-cv(CON))

Often after a trial judge has discovered that he or she has erroneously admitted evidence, the judge can attempt to limit the damage of the evidentiary error, for example by cautioning the jury about the limited use to which the evidence may properly be put. Usually this is sufficient to preclude the jury's improper use of the evidence and saves the trial from error. Employing the assumption that the jury will follow the court's cautionary instruction, the evidentiary error is rarely fatal to the case. The Second Circuit case of Arlio v. Lively provides a demonstration that this general power of limiting instructions occasionally is insufficient to correct the error made.

In the case, plaintiff Arlio was a police officer who sued the defendant chief of police (Lively) for violating his First and Fourteenth Amendment rights. The plaintiff contended that the defendant suspended him “on trumped-up charges because Arlio had the temerity to support local Democratic candidates for office” whom the defendant, a Republican, opposed. The plaintiff sought relief from the suspension and filed a complaint with the state Board of Mediation. The result was an arbitration of the matter and ended with the arbitrators issuing a decision that the defendant had been suspended without just cause and they awarded back wages.

With this in hand, the plaintiff then filed a civil rights claim in the federal district court and not for back pay. At the pretrial conference, the defendant objected to “any mention of the prior arbitration proceeding” as irrelevant and unfairly prejudicial. The trial court at first agreed, but then asked the defendant to draft a jury instruction to explain that the defendant was not seeking back pay because that had already been awarded in the arbitration (and therefore his claims were only related to constitutional violations).

However at trial, the judge found the proposed instruction “lacking” and apparently was “distracted” when it allowed the plaintiff to testify about the arbitration and the damage award. The court provided a limiting instruction that the arbitration did not address the plaintiff’s constitutional claims which were to be decided by the jury. The jury returned a verdict for the plaintiff and the defendant appealed.

The Second Circuit agreed with the defendant and reversed and remanded the matter for retrial. The circuit noted the case presented “a perfect example of when the ‘merits of other cases … become inextricably intertwined with the case at bar.’” Arlio, 474 F.3d at 53 (quoting Kinan v. City of Brockton, 876 F.2d 1029, 1034 (1st Cir. 1989) (Introduction of evidence of other civil rights proceedings “would inevitably result in trying those cases, or at least portions of them, before the jury. The merits of the two other cases would become inextricably intertwined with the case at bar. The result would be confusion and the consumption of a great deal of unnecessary time.”)).

Because of this inextricable intertwining, the circuit concluded that admitting evidence on the arbitration proceeding was unduly prejudicial. According to the circuit:

The jury might have felt a strong compulsion to conform their verdict to the conclusion of the Arbitration Board…, The allure of a prior expert adjudication must be strong for a jury. An expert body’s determination that Arlio had been improperly suspended undoubtedly had an impact on the jury, despite any attempt by the district court to explain the legal distinction between the issues before the jury and those before the Arbitration Board. District courts must assiduously guard juries against the siren song of irrelevant and prejudicial prior determinations.
Arlio, 474 F.3d at 53.

The result was that the circuit agreed that admission of the evidence about the arbitration was an error and that it entitled the defendant to a new trial. The circuit found that the evidence was not relevant because it had no bearing on whether the plaintiff’s First Amendment rights were violated. Even had it been relevant, it should have been excluded under FRE 403 because “the prejudicial effect of the evidence would still outweigh any probative value.” Arlio, 474 F.3d at 53.

This is one of those cases when limiting instructions could not correct the error the circuit noted. The trial court’s limiting instruction “indicating that the testimony should be considered only for the limited purpose of ‘what is and what isn’t claimed for damages by the plaintiff,’” was to no avail. Permitting the plaintiff “to testify at length about the arbitration proceeding and essentially inform[] the jury that Arlio’s suspension was not for just cause” was unduly prejudicial. Arlio, 474 F.3d at 53. The circuit concluded that the district courts must "assiduously guard juries against the siren song of irrelevant and prejudicial prior determinations.” Arlio, 474 F.3d at 53. Consequently, a new trial was ordered.

Federal Rules of Evidence