"Reverse" 404(b) Evidence Or Simply Relevant Evidence?

In a deliberate indifference civil rights action, alleging a victim died in custody as result of jail personnel ignoring her medical claims, evidence of the victim's prior drug convictions, sentences and heroin addiction should have been admitted once the plaintiff placed the issue of damages for loss of companionship and loss of enjoyment of life; the evidence should not have been excluded pursuant to FRE 404(b), because it was directly "relevant to how much loss" plaintiff survivor and victim's estate had suffered as result of victim's death, in Cobige v. City of Chicago, Ill., __ F.3d __ (7th Cir. July 12, 2011) (No. 10-3728)

Earlier this year, the Federal Evidence Blog identified as one of the significant evidence issues during 2010 a question raised by the Seventh Circuit regarding the admission of FRE 404(b) Other Act evidence. We noted that the circuit broke with other circuits in eliminating the “inextricable intertwinement” theory for admission of other act evidence. The circuit explained in United States v. Gorman, 613 F.3d 711 (7th Cir. 2010), why it no longer would adhere to the "traditionally ... subtle distinctions between direct evidence of a charged crime, inextricable intertwinement evidence, and Rule 404(b) evidence."

The circuit explained that "... the inextricable intertwinement doctrine has since become overused, vague, and quite unhelpful. To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness. Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility." Gorman, 613 F.3d at 718-19 (footnotes omitted). Has this change in assessing reasons for the admissibility of 404(b) evidence had any effect on the "reverse 404(b)" theory -- where a defendant tries to introduce the other act evidence of another person to prove he or she is not culpable of the charged conduct or result? While there are not many cases concerning reverse Rule 404(b) evidence, the Seventh Circuit recently explored how, rather than applying FRE 404(b) to exclude or include admission of a victim's prior record and actions in a civil context, other act evidence may be admitted simply because it was directly relevant to a civil question of the defendant's damages.

In the case, after the victim died while in jail, her son Cobige brought a civil rights action seeking damages from the police officers who ignored the victim's "pleas for help." This cruel indifference "combined with a pre-existing heart condition ...[of the victim to] cause[ ] her death." The jury rendered a verdict and damages for the plaintiff and the officers appealed, alleging the trial judge erred by excluding from evidence the defendant's proffer that the victim had a "police record, time in prison, and drug addiction." Cobige, __ F.3d at __. The circuit, noting that the proffered evidence was relevant to a matter placed in issue by the plaintiff as to the level of damages suffered by the plaintiff, explained that the other act evidence was admissible as it was "relevant to how much loss" the plaintiff and the victim's estate had suffered as result of the victim's death.

The plaintiff had opened the door to this evidence when he testified that the victim "had been a friend as well as a parent, a bulwark of support and a role model throughout his life." By addressing this issue, the plaintiff "potentially affected not only the damages recoverable ... for loss of companionship but also the damages for [victim]'s loss of the enjoyment of life." The defendants sought to admit the other act evidence in order to to undermine the plaintiff's "rosy view of the mother-son relationship by introducing evidence that [victim] was a drug addict who had been in trouble with the law for much of her adult life and had spent multi-year stretches in prison. The district court admitted evidence that [victim] had been convicted once but excluded older sentences and did not permit the introduction of evidence about [victim]'s drug addiction and arrest record." The trial judge did so citing FRE 404(b) to exclude the victim's "police record, time in prison, and drug addiction" evidence. Cobige, __ F.3d at __.

The circuit disagreed, but explained that FRE 404(b) had nothing to do with why the other act evidence should have been admitted. It Observed that FRE 404(b):

begins by saying that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” [Defendants] did not offer the evidence about imprisonment, arrests, and addiction to show that [victim] acted “in conformity therewith” on a different occasion. That is, [defendants] did not propose to use evidence of one crime to establish propensity to commit another. It proffered the evidence because it is relevant to how much loss [victim's]'s estate and son suffered by her death."
Cobige, __ F.3d at __.


Evidence of the victim's "character and life prospects were put in question by her son's testimony," noted the circuit. He was "entitled to paint a favorable view of his mother's ability to give sage advice and emotional support—he testified that 'she taught me mostly everything I know. Everything she knew she tried to instill in me.' As a result, the defendants were "entitled to introduce evidence suggesting that [victim] was not likely to assist others or to have enjoyed life to the extent that her son narrated," which was relevant to the question of surviving relatives' emotional loss and familial ties" for calculating damages. The trial court should not have excluded this relevant evidence that "would have helped defendants counter" the plaintiff's arguments as to the extent of the damages. Cobige, __ F.3d at __.

The Seventh Circuit then assessed the application of the other act evidence as to the determination of the plaintiff's claimed damages:

Rule 403, which permits a judge to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice,” does not justify exclusion of this evidence. The effect that [defendants] sought would not have been “unfair prejudice”; the evidence bore directly on the appropriate amount of damages. When the law makes damages depend on matters such as the emotional tie between mother and son, the defendant is entitled to show that the decedent's character flaws undermined the quality of advice and support that she could have supplied. This kind of effect is not “prejudice” at all—not unless we count as “prejudice” all evidence that undermines the other side's contentions, —let alone “unfair prejudice”. Defendants preserved their position on this subject by trying multiple times to have this evidence admitted...."
Cobige, __ F.3d at __ (citing Thompson v. Chicago, 472 F.3d 444, 456 (7th Cir. 2006)).


Because the exclusion of the evidence obviated the possibility that the jury "could have significantly reduced the award of damages" to be paid to the plaintiff, the error was not harmless. Accordingly, the circuit remanded the case for a new trial, "[b]ut because the exclusion did not affect the jury's consideration of the merits—not if the jurors followed their instructions, anyway, and we do not have any reason to doubt that they did—the new trial should be limited to the subject of damages." Cobige, __ F.3d at __.

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