Monday, March 29, 2010

Malicious prosecution case goes back to the drawing board

Two women sued the police after an arrest for something they didn't do. They lost at trial. The Court of Appeals remands for a new trial because the trial judge made what looks like a seriously misguided evidentiary ruling that allowed some police witnesses to opine on the officers' credibility. The Court of Appeals also tells the district court what evidence to admit on remand.

The case is Cameron v. City of New York, decided on March 10. Malicious prosecution cases are all about witness credibility. The plaintiffs claim they did nothing to justify the arrest. The police say that they had probable cause to arrest the plaintiffs. The jury -- God bless 'em -- has to figure out who is telling the truth, or at least who has the more believable story.

What happened here was that the judge allowed the City to elicit testimony from two assistant district attorneys and a police officer who was present when plaintiffs were arrested. These witnesses testified about the credibility of officers Ramos and Rivera on the issue of whether they had probable cause to arrest plaintiffs Cameron and Higgenbottom, and as to whether certain evidence strengthened or weakened the plaintiffs' case.

This testimony certainly bolstered the City's case. One of the ADA's, for example, "testified extensively about her communications with Rivera and Ramos. She testified that nothing Rivera or Ramos said led her to consider dropping the case; that she had no reason to believe anything they said was inaccurate." Another ADA testified that "she would not have decided to prosecute Ms. Cameron if [she] did not believe there was probable cause to believe that [Cameron] had committed a crime.” A lieutenant testified that "after speaking with Ramos and Rivera, [she] thought that probable cause existed to arrest Cameron and had no 'reason to doubt the officers’ account of the facts that day.'” It looks like the plaintiffs' lawyers objected like crazy to some of this testimony.

Plaintiffs' lawyers called it right. Credibility is for the jury. Trial witnesses cannot testify that another witness is credible. They also cannot testify as to legal conclusions. While lay witnesses can provide some opinion testimony, that's only allowed when "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." As probable cause was a key issue at trial, the Court of Appeals (Calabresi, Cabranes and Hall) provides a bright-line rule: "we hold that prosecutors’ opinions as to probable cause and complaining officers’ credibility are irrelevant in virtually all cases involving claims of malicious prosecution. In such cases, district courts remain bound by the rules of evidence that normally govern opinion testimony."

Although the district court should not have allowed this testimony, the City still wins the appeal unless the evidence was harmless at trial. It was not. Not only did this testimony speak to the critical issues at trial (whether the police had probable cause or acted with malice), but this testimony was not cumulative but, instead, "provided strong external validation for propositions that would otherwise have come in only from the appellees' mouths." As the City's lawyers used this testimony in opening and closing arguments and the City did not have a particularly strong case to start with, the Second Circuit is convinced that the trial judge's error was not harmless. After next taking the time to set forth what evidence is admissible on remand, the Second Circuit orders a new trial.

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