In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐2779
THADDEUS JIMENEZ,
Plaintiff‐Appellee,
v.
CITY OF CHICAGO, et al.,
Defendants‐Appellants.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 08081 — Matthew F. Kennelly, Judge.
ARGUED JUNE 5, 2013 — DECIDED October 7, 2013
Before BAUER, EASTERBROOK, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. When he was fifteen years old,
plaintiff Thaddeus Jimenez was convicted of a murder he did
not commit. He spent sixteen years in prison before he was
exonerated. Jimenez then filed this lawsuit under 42 U.S.C. §
1983 and state law against the City of Chicago and a former
Chicago police detective, Jerome Bogucki, for violating his
constitutional right to due process of law and for malicious
prosecution. In January 2012, a jury found for Jimenez and
awarded him $25 million in compensatory damages. The
2 No. 12‐2779
district court denied the defendants’ motions for a new trial
and for judgment as a matter of law. Jimenez v. City of Chicago,
877 F. Supp. 2d 649, 653–54 (N.D. Ill. 2012). Defendants now
appeal. We affirm the judgment in favor of Jimenez.
I. Factual and Procedural Background
The following facts reflect the evidence in the light most
favorable to Jimenez, the non‐moving party who won the jury
verdict. Further factual details are set forth in the district
court’s order denying the defendants’ post‐trial motions.
In February 1993, Victor Romo and another boy
encountered Eric Morro on a street in Chicago. The boy with
Romo shot and killed Morro. Romo always identified the
shooter as Juan Carlos Torres. Larry Tueffel, a friend of
Morro’s, was present at the shooting, and Tina Elder and Phil
Torres were close by.
Detective Bogucki investigated the murder. Bogucki used
coercive tactics to convince Tueffel and Phil Torres to falsely
identify Jimenez as the shooter. Bogucki also tainted the
testimony of other witnesses. For example, he arranged for
Elder to see a picture of Morro’s corpse next to a picture of
Jimenez before she was shown a line‐up and identified Jimenez
as the shooter. Bogucki also knew that Jimenez owned a blue
and white Duke University jacket, so he planted with the
witnesses the idea that the shooter was wearing that color and
style of jacket.
Jimenez was fifteen years old in October 1994 when he was
tried as an adult for the murder of Morro. Tueffel, Elder, and
Torres all testified that Jimenez was the shooter. Romo, who
No. 12‐2779 3
had been with the shooter, testified that Juan Carlos Torres was
the shooter. Jimenez was convicted and sentenced to fifty years
in prison. For reasons unrelated to this appeal, his conviction
was overturned and he was retried in 1997. The same
witnesses testified at his second trial and gave essentially the
same testimony. Jimenez was again convicted and sentenced,
this time for forty‐five years.
Years passed, and Tueffel was in a mental health facility
after being diagnosed with paranoid schizophrenia. In 2006, he
was contacted by an investigator working for the
Northwestern University Center on Wrongful Convictions.
Tueffel volunteered that Jimenez was innocent. Using Tueffel’s
statements, investigators then confronted Elder about her
identification of Jimenez. She disclosed that her identification
of Jimenez in the lineup had been tainted because she had been
shown his picture just before she identified him. In 2008, the
investigators convinced the Cook County State’s Attorney to
reopen the case. State investigators discovered more evidence
indicating Jimenez’s innocence. Then, in May 2009, the State’s
Attorney and Jimenez’s lawyers sought to vacate his
conviction. A judge of the Circuit Court of Cook County did
so, and Jimenez was later granted a certificate of innocence.
Jimenez filed a complaint against the City of Chicago and
Detective Bogucki. The case went to trial against Bogucki on
two counts alleging federal claims under 42 U.S.C. §1983 for
deprivation of due process and conspiracy to do so and a state
law claim for malicious prosecution, and against the City of
Chicago for direct liability or indemnification for any judgment
against Bogucki. The jury found for Jimenez on all claims. The
defendants moved for a new trial under Federal Rule of Civil
4 No. 12‐2779
Procedure 59 and judgment as a matter of law under Rule 50.
The district court denied both motions.
The defendants have appealed, arguing that the district
court erred in denying their post‐trial motions and raising an
evidentiary issue. They argue that the district court erred
during jury selection by granting Jimenez’s Batson challenge to
a peremptory strike and by failing to give a jury instruction
limiting the due process violations the jury could consider.
Defendants also argue they are entitled to judgment as a
matter of law under Rule 50 because Jimenez failed to prove
his due process claim with sufficient evidence by not entering
into evidence the complete transcripts of each of his state
criminal trials. Finally, defendants argue that admitting one
expert’s testimony on reasonable police practices in murder
investigations was a reversible error that warrants a new trial.
We reject all of these challenges to the verdict.1
II. The Batson Issue
During jury selection, the defendants used two of their
three peremptory strikes against the only two African‐
American jurors in the venire. Jimenez challenged the strikes
of both under Batson v. Kentucky, 476 U.S. 79 (1986), which held
1
In exchange for dismissal of Jimenez’s punitive damages claim, Bogucki
stipulated on the record after the jury’s verdict that his actions had violated
Jimenez’s constitutional rights and that the verdict was “correct in every
way.” Tr. 2980. Jimenez argues that Bogucki’s stipulation forecloses any
arguments the defendants might make on appeal. We disagree. The context
of the stipulation makes plain that the parties still expected this appeal. The
stipulation did not waive any arguments that Bogucki or defense counsel
have made before this court.
No. 12‐2779 5
unconstitutional the use of peremptory challenges based on
race. The district judge sustained Jimenez’s objection to one
juror, concluding that defense counsel’s stated reasons for
striking juror S.M. were not credible. See United States v.
Rutledge, 648 F.3d 555, 556–57 (7th Cir. 2011) (Batson “requires
the district court to make a finding of fact regarding the
prosecutor’s credibility after the prosecutor has offered a
race‐neutral reason for the strike”). The judge explained that
the defense had failed to strike a similarly situated white juror,
which undermined the credibility of counsel’s stated reasons
for the strike of S.M.. The defendants had not tried to challenge
S.M. for cause.
The defendants argue that the district court erred and that
the error was compounded when the court did not give them
another chance to exercise an additional peremptory strike to
replace the one they lost. Defendants face a steep climb on the
merits of this argument. See Rice v. Collins, 546 U.S. 333, 338
(2006) (“On direct appeal in federal court, the credibility
findings a trial court makes in a Batson inquiry are reviewed
for clear error.”). We do not reach the merits of the argument,
however. There was no reversible error because the defendants
have not shown that a biased juror sat on the jury. Even if the
district court might have erred in sustaining Jimenez’s Batson
challenge, which we do not decide, any error would have been
harmless.
This question is governed by two decisions of the Supreme
Court, United States v. Martinez‐Salazar, 528 U.S. 304 (2000), and
Rivera v. Illinois, 556 U.S. 148 (2009). In Martinez‐Salazar, a
criminal defendant was forced to use one of his peremptory
challenges to cure the trial court’s erroneous denial of a
6 No. 12‐2779
challenge for cause. He was entitled to exercise peremptory
challenges pursuant to Federal Rule of Criminal Procedure
24(b), but the Court held that the loss of one of his
peremptories did not impair his rights under that rule. “[A]
principal reason for peremptories,” the Court explained, is “to
help secure the constitutional guarantee of trial by an impartial
jury.” Martinez‐Salazar, 528 U.S. at 316. Having “received
precisely what federal law provided,” and having been tried
“by a jury on which no biased juror sat,” Martinez‐Salazar
could not “tenably assert any violation of his … right to due
process.” Id. at 307, 317.
The Court extended this principle to a trial court’s error in
sustaining a Batson challenge in Rivera v. Illinois, 556 U.S. 148
(2009). Rivera, a state criminal defendant, appealed the state
trial court’s rejection of his peremptory strike of a Hispanic
juror who then sat on the jury that convicted him. The
Supreme Court of Illinois found that the record failed to
support a Batson challenge against that juror and that the trial
court should have allowed Rivera’s peremptory strike. See
556 U.S. at 155, citing State v. Rivera, 879 N.E.2d 876, 884 (Ill.
2007). The state court found, however, that because Rivera
could not show that a biased juror sat on his jury, the trial
court’s error in sustaining the Batson challenge was harmless.
Id. at 155–56, citing Rivera, 879 N.E.2d at 887, 890–91.
The Supreme Court of the United States affirmed, following
Martinez‐Salazar and holding that the erroneous denial of a
peremptory challenge does not require automatic reversal of
a defendant’s conviction as a matter of federal law. Id. at 156.
Instead, errors are to be assessed by inquiring whether the jury
that actually decided the case was qualified and impartial. See
No. 12‐2779 7
id. at 157–59; Martinez‐Salazar, 528 U.S. at 316–17; see also
Ross v. Oklahoma, 487 U.S. 81, 91 (1988) (failure of trial court to
remove juror for cause, with the result that defendant had to
use a peremptory challenge to remove the juror, did not
deprive defendant of right to impartial jury even though error
changed composition of jury); United States v. Polichemi,
219 F.3d 698, 705–06 (7th Cir. 2000). Under Martinez‐Salazar and
Rivera, therefore, unless the defendants can show that a biased
or otherwise unqualified juror sat on the jury that rendered the
verdict against them, any error in granting Jimenez’s Batson
challenge would have been harmless.
The defendants actually concede this point as a matter of
federal constitutional law. They argue, though, that we should
apply a different standard and reverse on the basis of the
federal statutes and rules providing peremptory challenges.
The defendants also argue that the application of harmless
error analysis in this circuit is “evolving.” We are not
persuaded on either point.
First, we agree with the Eighth and Ninth Circuits that an
error in sustaining a Batson challenge in a federal civil trial is
subject to harmless error analysis under Martinez‐Salazar and
Rivera. See Avichail v. St. John’s Mercy Health System, 686 F.3d
548, 552–53 (8th Cir. 2012); Alaska Rent‐A‐Car, Inc. v. Avis
Budget Group, Inc., 709 F.3d 872, 880 (9th Cir. 2013). In federal
civil cases, peremptory challenges are provided by 28 U.S.C.
§1870, which provides each side in a civil case three
peremptory challenges. (Federal Rule of Civil Procedure 47(b)
instructs courts to comply with §1870.) The fact that
peremptory challenges in civil cases are based on a statute does
not distinguish them from the right to peremptory challenges
8 No. 12‐2779
in the criminal context, which are granted by Federal Rule of
Criminal Procedure 24(b). See Martinez‐Salazar, 528 U.S. at 311
(“[U]nlike the right to an impartial jury guaranteed by the
Sixth Amendment, peremptory challenges are not of federal
constitutional dimension.”). There is no constitutional right to
a peremptory challenge. Rather, peremptory challenges are one
time‐honored means to protect the constitutional right to an
impartial jury. Martinez‐Salazar and Rivera cannot be
distinguished based on the legal source of the right to exercise
peremptory challenges, and a possible error in administering
peremptory challenges that did not deny an impartial jury
does not warrant a new trial.2
Second, defendants argue that our circuit’s case law is
“evolving” on the issue of errors in handling peremptory
challenges. The defendants rely on United States v. Patterson,
215 F.3d 776 (7th Cir. 2000), vacated in part on other grounds,
Patterson v. United States, 531 U.S. 1033 (2000), and United
States v. Harbin, 250 F.3d 532 (7th Cir. 2001). Patterson dealt
2
The defendants also try to distinguish Martinez‐Salazar and Rivera on a
different basis. They argue that the defendants in Martinez‐Salazar and
Rivera “did not lose the use of a peremptory; each used every allotted
challenge to remove a juror.” Reply Br. at 22. We are not persuaded. Rivera
struck a juror, the court erroneously denied his Batson challenge, and the
juror sat on Rivera’s jury. Rivera, 556 U.S. at 152. Effectively, Rivera lost his
strike. Martinez‐Salazar had to use a peremptory challenge to strike a juror
who should have been struck for cause, also effecting what could be
deemed a forfeiture of that peremptory challenge. Martinez‐Salazar, 528 U.S.
at 309. We need not decide here the extent of a district court’s discretion to
deny the culprit a replacement peremptory challenge after sustaining a
Batson challenge. See generally, e.g., United States v. Walker, 490 F.3d 1282,
1294–95 (11th Cir. 2007).
No. 12‐2779 9
with the loss of a peremptory challenge due to a
misunderstanding about which jurors would be designated as
alternates. But the impartiality of the jury that was eventually
seated was not called into question, “which makes it hard to
see why there is any real problem.” 215 F.3d at 779. We applied
harmless error review and rejected the defendants’ claim that
they lost substantial rights. Id. at 781–82. Because the jury that
was seated was impartial, the defendants had not been harmed
and a new trial was not warranted. At the same time, though,
we left open the possibility that “an exceptionally confused
jury‐selection process” might affect a substantial right. Id. at
782.
The next year, Harbin presented just such an “exceptionally
confused” scenario. In the middle of a trial, a district judge
permitted the prosecution to exercise a left‐over peremptory
challenge. We reversed, holding that “the error was serious
enough to effect a shift in the total balance of advantages in
favor of the prosecution.” Harbin, 250 F.3d at 547. We found it
was unfair to allow one party “unilateral, discretionary control
over the composition of the jury mid‐trial.” Id. at 547.
Patterson and Harbin offer no help for the defendants here.
The jury selection process employed in this trial was straight‐
forward and did not offer either side a strategic advantage.
Without a showing that a biased juror was seated, any error in
the jury selection process in the Jimenez trial could have been
an error only in “a technical sense.” Harbin, 250 F.3d at 549.
The defendants have not attempted to show that a biased
juror sat on their jury or the sort of harm presented in Harbin.
Without such a showing, we must presume that they received
10 No. 12‐2779
a fair trial. Defendants are not entitled to a new trial based on
district court’s handling of the Batson challenge.
III. Jury Instruction on the Brady Claim
In Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972), the Supreme Court held that the
accused in a criminal case has a due process right to have the
prosecution disclose material exculpatory evidence, including
evidence that impeaches the credibility of prosecution
witnesses. Jimenez’s core claim in this case is that Detective
Bogucki deliberately violated his rights under Brady and its
progeny by concealing exculpatory evidence.
The defendants argue that the district court erred by
refusing to give an instruction that would have limited the
jury’s consideration of Jimenez’s due process Brady claim to
five pieces of evidence. Although this argument is framed
primarily as a challenge to the jury instructions, the defendants
also contend that in closing arguments, Jimenez asserted that
ten Brady violations had occurred in the course of the Morro
murder investigation. Defendants say they had no prior notice
of six of them. Neither argument warrants a new trial.
Where the jury instructions provided by the trial court were
an accurate statement of the law, our “review of jury
instructions is limited.” Knox v. State of Indiana, 93 F.3d 1327,
1332 (7th Cir. 1996). If the instructions were deficient, we ask
whether the jury was confused or misled by the instructions.
Gile v. United Airlines, Inc., 213 F.3d 365, 374–75 (7th Cir. 2000).
Even if we believe that the jury was confused or misled, we
would need to find that the defendants were prejudiced before
ordering a new trial. Id.; see also Boyd v. Illinois State Police,
No. 12‐2779 11
384 F.3d 888, 894 (7th Cir. 2004) (standard of review is “a
liberal one: we look at jury instructions only to determine if
taken as a whole they were sufficient correctly to inform the
jury of the applicable law. Even if the instruction contains
errors or misguides the jury, the error is reversible only if a
litigant is prejudiced.”) (quotation omitted).
The defendants do not argue that the due process
instruction given by the district court was an incorrect
statement of the law.3 They argue that it was too broad
3
The district court provided the jury with the following instruction on
Jimenez’s due process Brady claim:
The plaintiff’s first claim is that the defendant violated his constitu‐
tional right to due process of law.
To succeed on this claim, the plaintiff must prove both of the
following things by a preponderance of the evidence:
1. The defendant concealed material exculpatory and/or
impeachment evidence from prosecutors.
2. As a result, the plaintiff was damaged.
A law enforcement officer is obligated to turn over to the prosecu‐
tors handling the case material exculpatory and impeachment
evidence that is not otherwise available through the exercise of due
diligence. Exculpatory or impeachment evidence is not considered
to have been concealed if it was disclosed in time for the defendant
in the criminal case to make use of it at his criminal trial.
“Exculpatory” evidence is evidence that would tend to show that
the accused person is not guilty of the crime charged.
(continued...)
12 No. 12‐2779
because, without the defendants’ proposed limiting
instruction, the jury was permitted to consider potential Brady
violations that had not been raised by the parties at the
summary judgment stage of the case.4
We find no error. Nothing prevented the jury from deciding
the case on evidence that had not been used to support or
oppose an earlier summary judgment motion. “Once the case
proceeds to trial, the full record developed in court supersedes
the record existing at the time of the summary judgment
motion.” Ortiz v. Jordan, — U.S. —, —, 131 S. Ct. 884, 890
(2011); Chemetall GmbH v. ZR Energy, Inc., 320 F.3d 714, 718 (7th
Cir. 2003) (“Once the trial has taken place, our focus is on the
3
(...continued)
“Impeachment” evidence is evidence that would undermine the
credibility of a prosecution witness who testifies at the criminal
trial.
Exculpatory and impeachment evidence is “material” if it has a
reasonable likelihood of affecting the outcome of the criminal case.
Dkt. 287 at 12.
4
The defendants contend that only the following “categories” of evidence
were considered by the district court at summary judgment: (1) that
Bogucki failed to disclose that he coerced Larry Tueffel to identify Jimenez;
(2) that Phil Torres “never told police he saw Jimenez shoot [Morro];” (3)
that Tina Elder saw Jimenez’s photo before identifying him in the line‐up;
(4) that police induced witnesses to give false testimony that the shooter
was wearing a Duke jacket; and (5) that police possessed certain physical
evidence, including a handwritten note, a photo of Jimenez, and an
evidence inventory list. Def. Br. at 71. The district court granted summary
judgment for the defendants on the last of these theories.
No. 12‐2779 13
evidence actually admitted and not on the earlier summary
judgment record.”). So long as the evidence supporting these
theories was properly admitted, nothing warranted a jury
instruction that would have prevented the jury from
considering that evidence in resolving Jimenez’s due process
claim. We find no error in the district court’s denial of the
defendants’ proposed limiting instruction.
In the alternative, the defendants argue that if the district
court’s refusal to give a limiting instruction was not error, they
were not given appropriate notice of several Brady theories that
Jimenez raised for the first time in closing argument.5 The
defendants did not object to these “new” theories at trial,
however, and we see no error in any event. Contrary to the
defendants’ contention, these Brady theories were not
stand‐alone due process claims, and they certainly did not
require Jimenez to amend his complaint in the middle of trial
to add such factual detail to the pleadings. Defendants have
not shown that they were unfairly blindsided or that Jimenez’s
trial evidence contradicted his discovery responses. Since the
supposedly new arguments were based on properly admitted
evidence, Jimenez’s counsel was entitled to argue the effect of
the evidence in closing.
5
These theories included: (1) the involvement of Morro’s friend in the
investigation; (2) that Bogucki did not record the contemporaneous version
of events when he stopped taking notes of his interview with Tina Elder; (3)
that Bogucki’s notes of his interviews with Phillip Torres were of two
separate interviews; (4) the anonymous phone call that identified Victor
Romo; (5) the omission of times and dates in Bogucki’s general progress
reports; and (6) that Jimenez’s Duke jacket was not tested and then
“disappeared.” Def. Br. at 72–73.
14 No. 12‐2779
IV. The Criminal Trial Transcripts
The defendants argue next that they are entitled to
judgment as a matter of law on Jimenez’s Brady claims because
he did not put into evidence the entire transcripts of his
original criminal trials. Without the transcripts, defendants
argue, the trial evidence was not sufficient to support the jury’s
verdict and the verdict should be reversed. We reject this
argument based on both waiver and the merits.
First, the defendants never raised this issue before the
district court, either at trial or in their post‐trial Rule 50 motion
for judgment as a matter of law. The issue therefore may not be
used to reverse the judgment on appeal. See Ortiz v. Jordan, —
U.S. at —, 131 S. Ct. at 892 (absent Rule 50 motion, appellate
court was “powerless” to review sufficiency of trial evidence),
quoting Unitherm Food Sys., Inc. v. Swift‐Eckrich, Inc., 546 U.S.
394, 404–05 (2006) (finding forfeiture of a claim on appeal that
was not presented in either the Rule 50(a) or Rule 50(b)
motion). Whether the trial evidence was sufficient to support
the jury’s verdict without the full criminal trial transcripts is a
matter that had to be raised before the trial court in the first
instance.6
Second, even if we could review the argument de novo, it
would still fail on the merits. The defendants argue that
Jimenez was required to put the entire transcripts of his two
6
In response to Jimenez’s waiver argument, the defendants state: “Nor do
we challenge the sufficiency of the evidence such as would require a
predicate motion under Fed. R. Civ. P. 50.” Reply Br. at 44 n.18. This
perfunctory assertion in a footnote in a reply brief is unexplained and is not
consistent with the defense argument on the merits.
No. 12‐2779 15
criminal trials before the jury. The defendants do not specify
whether this burden would have required Jimenez to force the
jury to listen to a reading of all 1,370 pages or to use some
other procedure. The absence of specificity is telling.
The defendants base this argument on language in United
States v. Agurs:
The proper standard of materiality [of an alleged
Brady omission] must reflect our overriding concern
with the justice of the finding of guilt. Such a finding
is permissible only if supported by evidence
establishing guilt beyond a reasonable doubt. It
necessarily follows that if the omitted evidence
creates a reasonable doubt that did not otherwise
exist, constitutional error has been committed. This
means that the omission must be evaluated in the context
of the entire record.
427 U.S. 97, 112 (1976) (emphasis added); Def. Br. at 80, also
citing Woolley v. Rednour, 702 F.3d 411, 426 (7th Cir. 2012)
(evaluating post‐conviction claim of prejudicial ineffective
assistance of counsel under Agurs materiality standard).
Agurs shows that the materiality of Brady evidence depends
on its context within the criminal investigation. But Agurs did
not establish a rule that the plaintiff in a civil case alleging a
Brady violation must force‐feed the jury the original criminal
trial in its entirety. The criminal transcripts were relevant but
not necessary evidence of Jimenez’s due process Brady claim so
long as he met his burden by other means. The district court
did not err by denying the defendants’ post‐trial motion for
judgment as a matter of law on Jimenez’s Brady claims.
16 No. 12‐2779
V. Expert Testimony
Finally, we address the defendants’ contention that the
district court erred by permitting Jimenez to offer the
testimony of Gregg McCrary, an expert on police practices.
McCrary testified in some detail about reasonable practices for
police investigations and how the investigation of the murder
of Eric Morro departed from those practices, depending in
large part on how the jury resolved conflicting evidence about
the investigation. McCrary’s testimony tended to show that the
errors in defendants’ handling of the investigation were so
severe and numerous as to support an inference of deliberate
wrongdoing in violation of the Constitution.
Defendants contend that McCrary’s testimony regarding
reasonable police investigatory practices amounted to legal
conclusions that were not admissible under Federal Rule of
Evidence 702. They also argue that McCrary’s testimony
impermissibly opined on the credibility of other witnesses. We
find no reversible error.
A. Forfeiture
Jimenez responds that the defendants have forfeited these
arguments because they did not object to McCrary’s testimony
on either of these grounds at trial. “If the district court admits
the contested evidence, the opponent must make a timely
objection or motion to strike, ‘stating the specific ground of
objection, if the specific ground was not apparent from the
context[.]’” Germano v. Int’l Profit Ass’n, Inc., 544 F.3d 798, 801
(7th Cir. 2008), quoting prior language in Fed. R. Evid.
103(a)(1). The defendants counter that their Rule 702 objection
was preserved by a pre‐trial motion in limine and that once the
No. 12‐2779 17
judge ruled on their motion, any further objection would have
been an unnecessary exception to the judge’s ruling. See Fed.
R. Civ. P. 46. We conclude that the defendants failed to
preserve the arguments they are now making on appeal
regarding McCrary’s testimony.
The defendants argued in their motion in limine that
McCrary’s testimony would be improper because the jury
would be able to determine for itself the steps and procedures
involved in a “reasonable and prudent” police investigation,
and McCrary’s testimony on those issues would not be based
on specialized knowledge and thus would not assist the jury.
Dkt. 206 at 5–6 (quoting McCrary’s proposed testimony). That
argument was very different from the arguments that
defendants make on appeal. In this court the defendants argue
that McCrary should not have been permitted to testify
regarding reasonable police practices because
“reasonableness” is a legal conclusion, and experts should not
provide legal opinions. Def. Br. at 58–62. The different
arguments in the motion in limine were not sufficient to
preserve the new argument.
Nor were the arguments in the motion sufficient to
preserve the argument on appeal that McCrary should have
been prevented from testifying regarding the credibility of the
other witnesses. In their motion in limine, the defendants
argued that McCrary should not be permitted to testify
because his opinions hinged on his evaluation of the credibility
of the witnesses to the Morro murder. Dkt. 206 at 3–5. That
argument was different from the argument the defendants
raise on appeal—that McCrary testified regarding the
credibility of the witnesses’ trial testimony. Def. Br. at 64
18 No. 12‐2779
(McCrary’s testimony “directly touched upon a matter firmly
beyond any expert’s competence: the credibility of several key
trial witnesses.”). This appellate argument also was not
preserved by the motion in limine.
Because the defendants failed to object to McCrary’s
testimony on either of these bases at trial, we must consider
whether there was a “plain error” under Federal Rule of
Evidence 103(e). We have explained: “Plain error review of a
forfeited evidentiary issue in a civil case is available only under
extraordinary circumstances when the party seeking review
can demonstrate that: (1) exceptional circumstances exist; (2)
substantial rights are affected; and (3) a miscarriage of justice
will occur if plain error review is not applied.” Estate of
Moreland v. Dieter, 395 F.3d 747, 756 (7th Cir. 2005), citing
Stringel v. Methodist Hosp. of Ind., Inc., 89 F.3d 415, 421 (7th Cir.
1996).
The defendants have not cleared this high bar. The
defendants argue at length that McCrary’s disputed testimony
affected their substantial rights. Def. Br. at 62–70. But the bulk
of their argument depends on comparing McCrary’s “lengthy
and purposeful” testimony with the “weaknesses” of Jimenez’s
claims—in other words, re‐weighing the evidence while
drawing all inferences in the defendants’ favor. We may not do
so. Moreover, the defendants have not addressed the other two
elements needed for plain error review—exceptional
circumstances and a miscarriage of justice. The defendants’
arguments concerning their substantial rights will not rescue
them from forfeiture without such a showing.
No. 12‐2779 19
B. The Merits of Defendants’ Challenges
Even if defendants had not forfeited these objections,
though, defendants’ arguments against McCrary’s testimony
fail on the merits. When an objection is made properly, a
district court’s decision admitting evidence is reviewed for an
abuse of discretion. Griffin v. Foley, 542 F.3d 209, 217 (7th Cir.
2008).
1. Testimony Regarding “Reasonableness”
Federal Rule of Evidence 702(a) permits a witness qualified
as an expert to testify regarding his or her opinion if “the
expert’s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue.” It is the role of the judge, not an
expert witness, to instruct the jury on the applicable principles
of law, and it is the role of the jury to apply those principles of
law to the facts in evidence. As a general rule, accordingly, an
expert may not offer legal opinions.7
7
There are some exceptions to this general rule, including some issues of
legal malpractice and patent law. See, e.g., American Int’l Adjustment Co. v.
Galvin, 86 F.3d 1455, 1461 (7th Cir. 1996) (in legal malpractice case under
Indiana law, expert testimony is normally required to show standard of
care); Markman v. Westview Instruments, Inc., 52 F.3d 967, 983 (Fed. Cir. 1995)
(court had discretion to adopt, take guidance from, ignore, or reject expert
legal opinions regarding patent construction), aff’d, 517 U.S. 370 (1996);
Applegate v. United States, 35 Fed. Cl. 406, 424–25 (Fed. Cl. 1996) (expert
testimony reaching legal conclusions may be admissible where the
testimony concerns state law or a technical provision peculiar to industry)
(internal quotation omitted); Barth v. Reagan, 564 N.E.2d 1196, 1199–1200 (Ill.
1990) (in legal malpractice case under Illinois law, standard of care
(continued...)
20 No. 12‐2779
The defendants argue that McCrary’s testimony regarding
reasonable police practices was intertwined with probable
cause, a legal standard, and thus McCrary should not have
been permitted to testify on the subject. We disagree. McCrary
did not offer any opinion at trial as to probable cause at any
stage of the investigation of Morro’s murder or the prosecution
of Jiminez. He testified only about reasonable investigative
procedures and ways in which evidence from other witnesses
did or did not indicate departures from those reasonable
procedures.
We recognize that McCrary’s opinions had direct
implications for applying legal standards such as probable
cause and, even more to the point, whether Bogucki
deliberately failed to comply with his obligations under Brady
v. Maryland and the Due Process Clause of the Fourteenth
Amendment. That’s why his testimony was relevant.8
When an expert offers an opinion relevant to applying a
legal standard such as probable cause, the expert’s role is
“limited to describing sound professional standards and
identifying departures from them.” West v. Waymire, 114 F.3d
646, 652 (7th Cir. 1997); see also Abdullahi v. City of Madison,
423 F.3d 763, 772 (7th Cir. 2005) (commenting that expert’s
7
(...continued)
ordinarily must be established through expert testimony).
8
Plaintiff tried this case on the theory that Bogucki acted deliberately to
violate his constitutional rights. The case therefore does not present any
question about reckless conduct. See generally Slade v. Board of School Dirs.
of City of Milwaukee, 702 F.3d 1027, 1029–30 (7th Cir. 2012); Archie v. City of
Racine, 847 F.2d 1211, 1219–20 (7th Cir. 1988) (en banc).
No. 12‐2779 21
testimony could be relevant to jury in determining whether
officers deviated from reasonable police practices). That’s
exactly what McCrary did here. The district court drew the line
properly so that McCrary’s testimony did not stray into
impermissible territory.
In constitutional tort cases, expert testimony regarding
sound professional standards governing a defendant’s actions
can be relevant and helpful. Liability for constitutional torts is
more limited in scope than common law tort liability.
Negligence is not sufficient. Daniels v. Williams, 474 U.S. 327
(1986). Expert testimony regarding relevant professional
standards can give a jury a baseline to help evaluate whether
a defendant’s deviations from those standards were merely
negligent or were so severe or persistent as to support an
inference of intentional or reckless conduct that violated a
plaintiff’s constitutional rights. See, e.g., Norfleet v. Webster,
439 F.3d 392, 396 (7th Cir. 2006) (“To infer deliberate
indifference on the basis of a physician’s treatment decision,
the decision must be so far afield of accepted professional
standards as to raise the inference that it was not actually
based on a medical judgment.”), citing Estate of Cole v. Fromm,
94 F.3d 254, 262 (7th Cir. 1996); Collignon v. Milwaukee County,
163 F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show that the
professional disregarded the need only if the professional’s
subjective response was so inadequate that it demonstrated an
absence of professional judgment, that is, that no minimally
competent professional would have so responded under those
circumstances.”). These cited cases dealt with medical
treatment, but the same principle extends to police
investigations.
22 No. 12‐2779
McCrary testified about the steps a reasonable police
investigator would have taken to solve the Morro murder, as
well as the information that a reasonable police investigator
would have taken into account as the investigation progressed.
He did not try to resolve conflicts in the testimony of different
witnesses. He also did not offer an opinion regarding whether
the police had probable cause to arrest Jimenez. He did point
out ways in which evidence from other witnesses indicated
that Bogucki and his police colleagues departed from
reasonable investigation methods. The effect of his testimony
depended on how the jury resolved conflicts among the
testimony of other witnesses. We must assume the jury
resolved those conflicts in favor of plaintiff Jimenez, of course.
McCrary’s testimony thus would have helped the jury
conclude that the departures from reasonable police practices
were so important, severe, and numerous that they supported
an inference that Bogucki acted deliberately to violate
Jimenez’s rights. Such use of McCrary’s testimony would not
transform it into an impermissible legal opinion. Thus, even if
defendants had not forfeited their objections, we would find no
error in admitting McCrary’s testimony, much less plain error
or an abuse of discretion.
2. Testimony Regarding Credibility
The defendants also contend that McCrary impermissibly
testified regarding the credibility of the other trial witnesses.
The defendants also forfeited this argument, as noted, but it
too would fail on the merits. Whether expert testimony
regarding witness perception, memory, reliability, and
deception could assist a properly‐instructed jury in its task of
evaluating trial testimony is controversial. Compare, e.g.,
No. 12‐2779 23
United States v. Hall, 165 F.3d 1095, 1107 (7th Cir. 1999) (“the
credibility of eyewitness testimony is generally not an
appropriate subject matter for expert testimony because it
influences a critical function of the jury—determining the
credibility of witnesses.”), with Hall, 165 F.3d at 1118
(Easterbrook, J., concurring in judgment) (“Jurors who think
they understand how memory works may be mistaken, and if
these mistakes influence their evaluation of testimony then
they may convict innocent persons. … That a subject is within
daily experience does not mean that jurors know it correctly.”)
(emphasis in original). As important as this controversy is, we
need not address it here because McCrary simply did not
testify regarding the credibility of other trial witnesses.
McCrary offered a few observations on credibility, but they
were limited to proper discussions of the evidence that
Bogucki received in the investigation. First, McCrary noted
that one witness had given Bogucki two inconsistent versions
of the events at two different times in the investigation. He
explained that a reasonable officer would have realized that
both of her stories “can’t be true” and would have tried to
resolve the conflicts. That point is hard to dispute and certainly
did not invade the province of the jury.
McCrary also testified that a reasonable officer would have
taken very seriously Victor Romo’s statement that he was
present when Morro was shot and that the shooter was Juan
Carlos Torres, not Jimenez. McCrary explained that Romo’s
statement amounted to a voluntary confession that he was
present at the scene of the murder with the person he said was
the shooter, which would make Romo himself at least a suspect
in the murder, at the very least as an accomplice. See Tr.
24 No. 12‐2779
1627–28, 1630, 1635. McCrary did not testify that Romo had
been telling the truth, but he explained that Romo’s statement
had strong indications of credibility so that a reasonable police
investigator would have taken it seriously—it was a voluntary
statement against Romo’s own interests, for it implicated him
in a very serious crime. We see nothing improper about that
testimony. See Nunez v. BNSF Railway Co., No.12‐3018, — F.3d
—, —, 2013 WL 4829259, at *3 (7th Cir. Sept. 11, 2013) (expert
could not testify as to whether another witness was telling the
truth, but could testify about implications if he was).
McCrary did not tell the jury whether to believe what any
witnesses had said during the civil trial. He told the jury what
a reasonable police investigator should have done when
presented with these conflicting and/or inculpatory statements
during the murder investigation. This was within the bounds
of proper testimony for a police practices expert. Thus, even if
the argument had not been forfeited, we would find no error,
let alone a plain error or an abuse of discretion.
We find no reversible error, so the judgment of the district
court is AFFIRMED.