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Evidence — prior convictions — forfeiture

United States Court of Appeals For the Seventh Circuit

Civil

Evidence — prior convictions — forfeiture

Where a party failed to raise any substantive argument in support of his motion to exclude evidence of prior convictions, the objection is forfeited.

“Williams did not present his probative-prejudicial balancing argument with any meaningful level of specificity. His motion in limine did nothing more than give a barebones recitation of the relevant standard (e.g., ‘probative value outweighs prejudicial effect’), then conclusorily state that it was met (e.g., ‘Because the foregoing facts are irrelevant, and if placed before the jury would be highly prejudicial to the Plaintiff …’). It did not explain how or why the balancing test should result in exclusion. See Echo, Inc. v. Timberland Machines & Irrigation, Inc., 661 F.3d 959, 967 (7th Cir. 2011) (three-sentence argument asserting consequences of opponent’s breach of contract without explaining how contract was breached was ‘too skeletal, and amounted to a waiver’). The only argument of any substance in the motion focused on excluding facts other than the charge and sentence (which the defendants then agreed not to present), not the convictions themselves. See Puffer, 675 F.3d at 718 (plaintiff waived disparate impact argument, where plaintiff ‘only provided factual allegations and legal arguments to support her pattern-or- practice claim,’ not the disparate impact argument). The motion did not cite any probative-prejudicial balancing cases in support of excluding the convictions themselves. See id. (failure to cite cases also supporting finding of waiver). Even when the defendants clearly addressed the probative-prejudicial balancing issue and specifically pointed out this lack of substantive argument in their opposition brief, Williams’s counsel did not file a reply. See Pond v. Michelin N. Am., Inc., 183 F.3d 592, 597 (7th Cir. 1999) (argument waived when only perfunctorily presented in response to a motion for summary judgment directly addressing the issue). Under these circumstances, the district court may have concluded that Williams simply did not want to make a probative-prejudicial balancing argument when given the perfect opportunity to do so, a conclusion that would have been entirely justified. Cf. Puffer, 675 F.3d at 719 (‘The minimal attention that the district court gave to plaintiff’s disparate impact claim can be directly attributed to the scant support that plaintiff provided for this claim.’); Pond, 183 F.3d at 597-98 (‘The district court judge was under no obligation to discover a separate claim of disparate treatment based on [the plaintiff’s] offhand reference …’).”

Affirmed.

12-3348 Williams v. Dieball

Appeal from the United States District Court for the Northern District of Illinois, Pallmeyer, J., Williams, J.

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