Opinion
No. 06 C 5108.
May 15, 2008
MEMORANDUM OPINION AND ORDER
During the course of this Court's April 17, 2008 oral ruling on the motion brought by counsel for defendant James Witt ("Witt"), seeking reconsideration of the April 1 written memorandum opinion and order dealing with the litigants' motions in limine, this Court had occasion to refer to another of its opinions, issued almost exactly two decades back, that has since been picked up by a number of other judges, apparently because they like the turn of phrase employed there. Here is that excerpt from Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988):
Despite what Gulfco appears to think, this Court's opinions are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure. Motions such as this reflect a fundamental misunderstanding of the limited appropriateness of motions for reconsideration.
Nothing daunted, Witt's counsel have once again pursued the same course — as the French aphorism has it:
Plus ça change, plus c'est la même chose.
Witt's most recent renewal of his effort to obtain relief as to a portion of the motions in limine has been triggered in connection with this Court's request, made at the conclusion of its April 17 oral ruling, that counsel for plaintiff Isaac Rosario ("Rosario") file a written response as to two issues raised in Witt's motion to consider. That response is now in hand, and Witt's counsel has just tendered a motion for presentment on May 21, asking leave to file a Reply Memorandum. If anything, the parties' most recent submissions reconfirm the appropriateness of one aspect of this Court's earlier orders and identify the need for further input as to a second aspect.
First of the items raised by Witt is the attempted admission of testimony by James Staunton ("Staunton"), the Police Department employee who fingerprinted Rosario on September 26, 2005 (the date of the incident at issue in this litigation) and who generated the computerized arrest report (Ex. 1 to this opinion) containing input from various sources, including (1) Witt as the arresting officer, (2) Witt's approving supervisor, (3) Rosario and (4) Staunton himself. Not to put too fine a point on the matter, Witt's counsel has not fairly characterized the record on that score by urging the admissibility of Staunton's testimony to establish the foundation to bring into the record under Fed.R.Evid. ("Rule") 803(5), often referred to by its common law label of "past recollection recorded," a statement contained in that arrest report. Some review of the bidding is called for in that respect.
To begin with, after protracted (months-long) efforts by Rosario's counsel to pin down defense counsel (and defendants) to straightforward answers to some key interrogatories seeking information as to any personnel having knowledge of the events at issue in the case, Assistant Corporation Counsel Megan McGrath generated the August 21, 2007 letter attached as Ex. 2. Most critically, after that defense counsel had obtained express confirmation from Staunton as to his responses, that letter made these representations:
3. City personnel who heard plaintiff make statements, or who remember plaintiff making statements on Sept. 26, 2005:
None.
4. City personnel who did not hear plaintiff make statements, or who do not remember hearing plaintiff make statements on Sept. 26, 2005:
Capt. Mark Buslik
Sgt. Brian Orseno
PO Saul Basurto
PO Leah Tobek
Detention Aide James Staunton
So it is undisputed that Staunton cannot testify to any matters of his own knowledge — hence the need to fall back on Rule 803(5).
But at that point Witt's counsel leaves the realm of fact and enters the world of speculation. Here are the telling excerpts from page 2 of Witt's current proposed Reply:
Staunton is an individual who does not remember either observing Rosario or taking his statement.
* * *
Ms. Hoft [Rosario's counsel] handed Yi [Chicago Police Officer Richard Yi, who searched Rosario and explained lockup procedures to him on September 26, 2005] with [sic] a copy of the computerized report relating to Rosario and asked him who inputted the data. Yi told her that Staunton had prepared this report. Yi Deposition 40. Ms. Hoft then asked Yi whether Staunton had included in the report a statement that Rosario had been injured prior to his arrest. Yi testified that he had, although Yi did not know how Staunton acquired this information nor did he remember Rosario's statement to this effect. Id.
It is against that backdrop that this Court must view the statement in the arrest report that is sought to be introduced through Staunton's provision of the foundation for the document — but not a foundation for the statement itself.
As an examination of the arrest report reveals, what it includes in part is a section that specifically reflects Rosario's answers to questions posed by Staunton in the section headed "ARRESTEE QUESTIONARIE" (sic). But the focus of the current dispute is this entry, found not in that section but later under the caption "QUESTIONNAIRE REMARKS" (copied verbatim):
Arrestee Has Numerous Bruise'S About Face Area Right Cheek Area Injuried Prior Too Being Arrested
On Witt's (and the City of Chicago's) own representations,neither Yi nor Staunton has ascribed that statement, or has any first-hand ability to ascribe it, to Rosario. Both Yi and Staunton disclaim knowledge in that regard. To then characterize that entry as an admission by Rosario, as is essential to qualify it for admissibility as nonhearsay under Rule 801(d)(2), requires sheer speculation.
Rule 803(5) frequently poses the problem that cross-examination as to statements contained within such a record is effectively unavailable. Even though a document itself may come within an exception to the hearsay rule, statements within the documents must themselves qualify either as hearsay exceptions or as nonhearsay. And in that regard Rule 403 is always a relevant consideration.
Here the statement at issue, unanchored as it is as being a purported Rosario admission through any testimony from declarant Staunton (or, for that matter, from Yi), is thus hearsay. And even were that not the case, its attenuated character causes it to run afoul of Rule 403 balancing: Any probative value it might have in those speculative terms is indeed substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury. Accordingly Witt's motion for reconsideration on that subject is denied.
Next Witt asks this Court to take a fresh look at its provisional exclusion of Rosario's cellphone records, offered by Witt to impeach a portion of Rosario's account of events on the night in question. Quite apart from the issues of reliability and probative value that cause Rosario's counsel to invoke Rule 403 to bar those records, there is a conflict between the parties as to whether the cellular telephone records from Rosario's girlfriend Michelle Muniz' telephone are or are not contradictory of the Rosario cellphone records that Witt seeks to introduce. This is an issue on which resolution can best be derived by a brief in-person presentation by opposing counsel explaining their respective positions. To that end counsel should be prepared, on the May 21 presentment date for Witt's motion, to discuss setting an early date for such in-person presentation and this Court's ruling.
Finally, Witt has accompanied his proposed Reply with a motion seeking leave to amend the existing final pretrial order to add some witnesses relating to his alleged Rule 404(b) conduct. On that score this Court needs a response (of course) from Rosario's counsel, and that subject can also be addressed at the May 21 presentment date.
Exhibit