Failure To Use An Evidence Rule As Proof There Was No Evidence

Reversing and remanding trial court sanction order in civil rights excessive force case because (1) the sanctioned statement had not violated the trial court's order (even though counsel confessed to having so violated the order) and (2) the sanctioned amount was not properly determined as compensation for the plaintiffs fees and costs as it was unrelated to the actual harm incurred by the plaintiff, plaintiff's failure to make claim, pursuant to FRE 606(b) that the sanctioned statement caused the jury to hang "strongly suggests" no basis for concluding that the error, even if it occurred, had prejudiced the plaintiff, in Miller v. City of Los Angeles, __ F.3d __ (9th Cir. Oct. 27, 2011) (No. 10–55235)

The Federal Evidence Blog tries to illuminate the use of the Federal Rules of Evidence in the federal courts. Occasionally we come across a case that is unusual but only incidentally related to a rule of evidence. Sometimes these cases can illustrate a principle that may be of some benefit in assessing a FER. A divided panel of the Ninth Circuit issued a carefully reasoned opinion of this yesterday. While the case contains only a minor evidence point of not much dispute, the implications of the circuit's decision may have significant consequences for the circuit's reversal of the trial court's compensatory sanction award to the plaintiff.

The case concerned a excessive force civil rights case filed by the family of victim Miller, charging that Los Angeles Police Officer Mata had unreasonably shot and killed the victim during a hostile encounter. During the first trial of the matter, the trial judge precluded defendants from presenting evidence and "arguing that the decedent [Miller] was armed when he was shot." Despite this exclusion order, defense counsel (Arias) argued in closing arguments "that [officer] Mata thought [victim] Miller failed to surrender because [Miller] had shot [another victim] Bean just moments earlier." Miller, __ F.3d at __. Plaintiffs' objection to this line of argument was sustained and the jury directed to ignore Arias's statement. The court also imposed sanctions on the plaintiff's attorney for violating the exclusion order after counsel confessed to having violated the order.

The jury was unable to reach a verdict and the district court declared a mistrial. No similar problem occurred during the second trial of the case and the new jury this time returned a verdict for the defendant. On appeal, the defendant contended that the trial court's sanctioning of its attorney for costs incurred by the opposing party in the first trial was erroneous. The circuit agreed that defense counsel's action was "inadvertent, fleeing and harmless." Miller, __ F.3d at __.

The Ninth Circuit also agreed with the plaintiff that the sanction was not proper. The first basis of this finding was the trial transcript that disclosed that the court's exclusion order had not been violated. As the entirety of the defendant's argument to the jury addressed the issue of the reasonableness of the defendant's actions, since this was not an objective standard, counsel properly argued that the defendant's argument appropriately went to the defendant's view of his situation at the time of the shooting, not whether the plaintiff in fact was armed, which the trial judge ordered excluded.

With no violation of the order, the $63,678.50 the trial court ordered be paid to the plaintiff as a compensatory sanction was not logically related to the costs and fees incurred by the plaintiff in having to re-try the case. The trial judge had made "no finding of causation," and without this, the trial judge lacked authority to order defendants to compensate plaintiffs for attorneys' fees and costs they spent on the first trial." Miller, __ F.3d at __. The circuit noted that the sanctioned amount $63, 678.50 was not logically related to its compensatory purpose. The circuit suggested that the effect of defendant's counsel's argument did not result in any harm to the plaintiff. Miller, __ F.3d at __.

As the circuit explained:

In the opposition to sanctions, [defense counsel] Arias noted that he and the Millers' attorney spoke at some length with the jurors after the first trial. If any of the jurors had said anything suggesting that Arias's ... sentence caused the jury to hang, the Millers would no doubt have proffered a declaration to that effect. Federal Rule of Evidence 606(b) bars only “an inquiry into the validity of a verdict or indictment.” Juror statements would have been admissible because the jury here returned no verdict. That the Millers failed to proffer any juror statements strongly suggests that the jurors said nothing supporting their claim.
Miller, __ F.3d at __.

According to the circuit, it was deciding "a strange case" and as "there are unlikely to be many more like it, so this opinion's precedential value is probably limited." Miller, __ F.3d at __.The circuit had minimal observations relevant to the FRE. Yet, what seems to have occurred, in the process of using a unremarkable interpretation of the FRE, is that counsel's failure to utilize an evidence option presented by the FRE, in light of other indications, is sufficient to deem the party would be able to show what the rule permits.


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