Sherrod v. Berry

FLAUM, Circuit Judge,

dissenting.

Federal Rule of Evidence 402 provides that all relevant evidence is initially to be viewed as admissible.1 In my judgment, the evidence presented at trial on the issue of whether the deceased was armed was relevant, but its prejudicial effect should have precluded its admission. Had the evidence been properly objected to, its admission would have warranted reversal of this case. However, because no objection was ever interposed on the specific ground of prejudice, the jury’s verdict should stand. I write separately because my view regarding the admission of this evidence is not advanced by or reflected in the other opinions of the court.

I.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed.R.Evid. 401. This definition of relevant evidence is an expansive one. To be relevant, evidence need not conclusively decide the ultimate issue in a case; it must simply tend to make a witness’ testimony more or less credible. 1 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 401[05]. See Davis v. Lane, 814 F.2d 397, 399 (7th Cir.1987) (in a § 1983 claim, evidence that Davis may have been armed with a shank was relevant to the reasonableness of officer’s decision to shoot him); United States v. Miroff, 606 F.2d 777, 781 (7th Cir.1979), cert. denied, 445 U.S. 928, 100 S.Ct. 1315, 63 L.Ed.2d 761 (1980) (evidence of guns found in defendant’s bedroom was admissible as relevant; even though the guns did not demonstrate that defendant was guilty of transporting stolen goods, it was at least a "circumstance” the jury could consider); Saladino v. Winkler, 609 F.2d 1211, 1214 (7th Cir.1979) (in § 1983 excessive use of force case, fact that plaintiff was intoxicated at time of arrest was relevant to the issue of the reasonableness of plaintiff’s conduct).

As complicated as it is to construct a factual picture at the trial court level, it is even more difficult to recreate it on appeal. It is for this reason that great deference must be given to a district judge’s eviden-tiary rulings. Accordingly, on appeal a district court’s decision on the relevance of proffered evidence should not be disturbed absent an abuse of discretion. In this case, I would initially accept the district judge’s finding that the evidence that Sherrod was unarmed (or if it had been otherwise, the evidence that he was armed) was relevant. Applying our highly deferential standard of review in this area, I cannot conclude that a clear showing has been made that the trial court abused its discretion in determining the relevance of this evidence.

*814The contents of Ronald Sherrod’s clothing, and the fact that he did not have a gun in his possession, were relevant because this information could have arguably aided the jury in evaluating the probative value of various witnesses’ conflicting testimony regarding the manner in which Sherrod reached toward his shirt pocket — the action that allegedly precipitated Officer Berry’s decision to shoot him. See 1 J. Weinstein & M. Berger, Weinstein’s Evidence ¶ 401[05] (evidence is relevant if it “will aid the court or jury in evaluating the probative value of other evidence offered to affect the probability of the existence of a consequential fact.”). Furthermore, the fact that Sherrod was unarmed may have tended to make less credible Officer Berry’s testimony about Sherrod’s actions, and might have informed the jury’s consideration of whether a reasonable officer would have believed that he or she was in imminent danger. See supra at 810-811 (Cummings, J., dissenting). While the appropriate test to be applied in this case is the “objective reasonableness” of Officer Berry’s actions, I believe this evidence satisfied the very broad standards of Federal Rule of Evidence 401.2

II.

Having concluded that the evidence in question can be appropriately viewed as relevant, the critical question in my judgment is whether it should have been excluded under Federal Rule of Evidence 403. Under the balancing test of Rule 403, relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice_” Fed. R.Evid. 403. Evidence is unfairly prejudicial if it creates “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Id. (advisory committee notes). As we have frequently recognized, all relevant evidence is inherently prejudicial. See, e.g., United States v. Thomas, 676 F.2d 239, 244 (7th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 364 (1981). Relevant evidence should be excluded only if it contains a risk of unfair prejudice that substantially outweighs its probative value. As with the determination that evidence is relevant under Rule 401, a district judge has broad discretion to determine whether the probative value of certain evidence is outweighed by its possible prejudice.

In the present case, as a thorough review of the record clearly establishes, the defendants did not specifically object to the admission of the evidence that Sherrod was unarmed on the basis of Rule 403.3 The district court therefore never explicitly determined whether this evidence was so inherently prejudicial that its probative value was outweighed by the potential prejudice. See supra at 812-13 (Cummings, J., dissenting). Admittedly, the district court’s seemingly unwavering position on the admissibility of this evidence made an objection on Rule 403 grounds uninviting. However, it was incumbent upon counsel to at least proffer a Rule 403 objection. See Sadowski v. Bombardier Ltd., 539 F.2d 615, 623 n. 7 (7th Cir.1976) (quoting Phillips v. Kitt, 290 F.2d 377, 378 (D.C.Cir.1961) (Counsel has a duty “ ‘even at the risk of incurring the displeasure of the trial court, to insist upon his [or her] objection. Having failed to do so, it is too late to urge this as error here.’ ”). Counsel’s lack of diligence resulted in a waiver of this crucial argument, a controlling fact that we should not ignore.

Informing the jury that Sherrod did not have a weapon most probably tainted its decision with an impermissible emotional consideration. Thus, had this objection been preserved for appeal, I would have been persuaded to find the admission of this evidence to be a clear abuse of discretion. I would therefore have reversed the *815verdict on the ground that this evidence was substantially more prejudicial than probative.4

III.

The lamentable events of this case starkly reflect the ofttimes tragic nature of citizen/police contact. In my view, however, this appeal is not the appropriate avenue by which to review the propriety of the police procedures of the city of Joliet, severely lacking as they might be in this particular case. Our purpose should be simply to ensure the essential fairness of the trial.

We can never be certain what the district judge’s ruling would have been if the defendants had objected to the admission of the evidence that Sherrod was unarmed under Rule 403. Thus, we cannot reverse on that basis. Although I strongly believe that this evidence was unduly prejudicial, the defendants’ failure to clearly preserve this specific issue should mandate that we leave the jury’s verdict untouched. I am therefore compelled to respectfully dissent.

. Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

. Similarly, had Sherrod been armed that evidence would have been as relevant as the fact that he was unarmed.

. In the original panel opinion, it appears that both the majority and dissent accepted the position that the defendants had preserved some form of objection to this evidence on the ground of prejudice. See Sherrod v. Berry, 827 F.2d 195, 203-04, 216-17 (7th Cir.1987), vacated, 835 F.2d 1222 (7th Cir.1988).

. Had Sherrod been armed, in my view this evidence should also have been excluded as being more prejudicial than probative,