7Search.com v. McAfee, Inc.

Filing 279

I N THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF ILLINOIS E A S T E R N DIVISION BRUCE CARLSON, Plaintiff, v. MUNDELEIN POLICE OFFICERS R.A. BELL (#230), DEVORE (#210) and VILLAGE OF MUNDELEIN d/b/a MUNDELEIN POLICE DEPARTMENT, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) )

No. 04C8201 Judge St. Eve

PLAINTIFF'S SUPPORTING MEMORANDUM FOR MOTIONS IN LIMINE Plaintiff, Bruce Carlson, by and through his attorneys, prior to the selection of the jury, moves this Court, in Limine, to enter an order directing the defendants, by and through their respective counsel, and any witness called by the defendants to refrain from making any direct or indirect mention, whatsoever, at jury selection, at the trial, or at any time before the presence of the jury, of the matters herein set forth without first obtaining permission from this court, outside the presence and hearing of the jury: 2. Prior arrests, criminal involvement and or convictions: Basis: F.R.E. 420, 403, 404, 609 Plaintiff moves in limine to exclude his criminal background from the present proceedings. Plaintiff's prior arrests and convictions, arising out of matters ten years ago, is not relevant to the present case and should be disallowed. The extended lapse of time between the conviction and this litigation demands the exclusion of the arrests and convictions. See Baldwin v. Huffman Towing Co., 366 N.E.2d 980 (1977)(4 ½ year old drug conviction excluded). 1

The facts in this case especially demand that such evidence be barred. Here, an audio recording of the entire incident exists which is undisputed by the parties. The recording captures the entire incident with the plaintiff and the defendant police officers from their initial communications until the time of the arrest. Furthermore, the defendant officers and defendants' retained expert have already conceded that the Crimes Against Persons Report is at the very least, inaccurate, if portions are not outright false, based on the comparison with the recording. Accordingly, the jury will hear exactly what occurred by listening to an objective and unbiased recording. Under these circumstances, allowing evidence of Mr. Carlson's previous convictions or prior criminal activities is simply used as a smear tactic designed to prejudice the plaintiff. Undeniably, entry of such past criminal information is substantially more prejudicial than probative. See Ryan v. Mobil Oil Corp., 510 N.E.2d 1162, 1170-71 (Ill. App. Ct. 1987) Moreover, at the time of the incident involved in this case none of the defendant officers were aware of any criminal background Mr. Carlson may have had. All defendants seek to do is portray plaintiff in a bad light based solely on conduct occurring over a decade ago. Strong vs. Clark, 1990 WL 70421 (N.D. Ill)(Judge Conlon)(prior criminal behavior is inadmissible to prove a party's bad character). Indeed, as previously stated, the conviction of approximately 10 years ago is far removed from this matter. In addition, the matter here in no way parallels the conduct of the prior convictions. Its probative value, if any, is far outweighed by the severe prejudicial effect of this evidence. Based upon the above, Mr. Carlson's criminal history should be excluded in limine pursuant to Federal Rules of Evidence 402, 403, 404. See also Lovergine vs. Willerth, 1986 WL 10352 (N.D. Ill)(holding a party's previous arrests to be precisely the type of evidence Federal Rule of Evidence 404 was designed to exclude).

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Plaintiff requests this Court to also enter an order in limine that Defendants be prohibited from introducing any evidence of plaintiff's prior arrests and criminal activity, of any sort whatsoever, as there is no competent and relevant evidence in connection with the same.

3.

Other lawsuits, claims or litigation to which the Plaintiff is involved: Basis: F.R.E.: 402, 403. Other lawsuits wherein plaintiff was either a plaintiff or defendant are irrelevant to the

present matter. Other suits cannot be used to show the bad character of the plaintiff. Nor can the other suits be used to demonstrate that plaintiff has brought other like claims against other police departments. See Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 775-777 (7th Cir. 2001) (District Court reluctant to plunge into a series of mini-trials on the merits of each of the prior suits) also Gastineau v. Fleet Mortgage Co., 137 F.3d 490, 494-95 (7th Cir. 1998) In essence, bringing up other lawsuits is simply meant to prejudice plaintiff and place him in a false light. Fed. R. Evid. 404(b) requires that the parties persuade the jury based on their respective versions of the facts of the case, not based on other events unrelated to the case. O'Hare Truck Serv. v. City of Northlake, 1999 U.S. Dist. LEXIS 11273. 8. Prior misconduct: Basis: F.R.E. 402. Prior bad acts may not be admitted to prove the propensity to commit further such acts. Fed. R. Evid. 404(b). See Strong vs. Clark, 1990 WL 70421 (N.D. Ill)(Judge Conlon)(prior criminal behavior is inadmissible to prove a party's bad character) "Character evidence is of slight probative value and may be very prejudicial. It tends to distract the trier of fact from the main question of what actually happened on the particular occasion. It subtly permits the trier of fact to reward the good man and to punish the bad man 3

because of their respective characters despite what the evidence in the case shows actually happened." Lovergine vs. Willerth, 1986 WL 10352 (N.D. Ill) citing Notes of the Advisory Committee. Mr. Carlson has done nothing wrong in this case. Defendants attempt to transform Mr. Carlson into the wrongdoer is misplaced, without merit and without basis in fact.

9.

Plaintiff's wealth (or lack thereof) and financial status: Basis: F.R.E. 402, 403

Evidence of plaintiff's financial status or position is not relevant to these proceedings. Plaintiff has not placed his financial status at issue as he has not claimed lost wages or earnings as a result of the incidents in the present case. See Fed. R. Evid. 403. Any mention of plaintiff's financial position will prejudice the plaintiff and serve no probative value whatsoever.

10.

The employment of the Plaintiff: Basis: F.R.E. 402, 403 See number 9 above.

Were any of the above circumstances made known to the jury in any of the manners as aforesaid, it would be highly improper and prejudicial, even if the Court were to sustain an objection, strike the matter, and/or instruct the jury to not give consideration to the same. WHEREFORE, plaintiff, Bruce Carlson, respectfully requests this Court to enter an order directing the defendants, through the respective counsel, and individually, not to mention, refer to, or interrogate any witness or have any witness voluntarily answer or attempt to convey before the jury, at any time during these proceedings, in any manner, either directly or indirectly, the subject matters as stated above, without first informing the Court and obtaining permission of the 4

Court outside the presence and hearing of the jury and further, to instruct the defendants through the respective counsel and individually not to make any reference or inference to the fact that this motion has been filed, argued or ruled upon by this Court and further, that each respective counsel be instructed to warn and caution each and every witness appearing in their phase of this litigation to strictly comply with the rule of this Court. Respectfully submitted, BRUCE CARLSON

By: /s/ Andrew J. Cohen Attorney for the Plaintiff Andrew J. Cohen, Esq. Marshall J. Burt, Esq. 77 West Washington Street Suite 1900 Chicago, IL 60602 [phone]

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CERTIFICATE OF SERVICE I hereby certify that on April 27, 2006, I electronically filed Plaintiff's Supporting Memorandum for Motions in Limine with the Clerk of Court using the CM/ECF system which will send notification of this filing upon: Mark Smolens, Esq. Ryan, Smolens & Jones 180 North LaSalle Street Suite 2303 Chicago, IL 60601 [e-mail]

By:/s/ Andrew J. Cohen

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