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Evidence — other acts

By: WISCONSIN LAW JOURNAL STAFF//August 5, 2013//

Evidence — other acts

By: WISCONSIN LAW JOURNAL STAFF//August 5, 2013//

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United States Court of Appeals For the Seventh Circuit

Civil

Evidence — other acts

In an excessive force trial, the district court abused its discretion in admitting evidence of the plaintiff’s subsequent arrest for underage drinking and an intervening felony conviction.

“We also observe that the defendants’ story was not ironclad. Most importantly, they testified that Barber was a little intoxicated and was not falling-down drunk, while at the same time testifying that he was injured because he was so intoxicated he fell down. It seems that falling down and injuring oneself due to one’s intoxicated state is the very definition of ‘falling-down drunk,’ but the defendants went to great lengths to deny that Barber was falling-down drunk. Why? Perhaps this was because the medical records did not mention anything about Barber being drunk, something the treating physician testified he would have noted with a 14-year-old patient. It is true that Barber was injured around 8 p.m. and not taken to the hospital until 10 p.m., but it may strike a jury as odd that a 14-year-old child who allegedly had been drinking liquor all day long would be unable to walk steadily at 8 p.m. and then sober up to the point that he had no indicia of intoxication a few hours later. In short, this was not a one-sided case, and we cannot say with fair assurance that the improper questioning on Barber’s subsequent underage drinking arrest and PSMV conviction did not substantially sway the jury.”

Vacated and Remanded.

12-2562 Barber v. City of Chicago

Appeal from the United States District Court for the Northern District of Illinois, Darrah, J., Tinder, J.

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