United States District Court, E.D. Michigan, Southern Division
TONY BEARD, Jr., a legally incapacitated individual, by and through JOHNETTE FORD, his guardian, Plaintiff,
KATIE SCHNEIDER, ERIC JACHYM, TIMOTHY GOUGEON, MATTHEW TAYLOR, RYAN LOSH, and KORY KARPINSKY, Defendant.
OPINION AND ORDER GRANTING DEFENDANTS' MOTION IN
LIMINE TO PRECLUDE THE INTRODUCTION OF EVIDENCE REGARDING
CRIMINAL CONVICTION SET ASIDE BY JUDGE 
G. Edmunds, United States District Judge
case is scheduled for trial beginning December 5, 2017 on
Beard's claims of (1) excessive force arising out of
Beard's arrest and (2) an equal protection claim against
defendant Taylor, related to the use of a racial epithet.
Defendants filed five pre-trial motions including a motion in
limine to preclude the introduction of evidence regarding a
criminal conviction of Beard, which the state circuit court
judge, who presided over the trial, later set aside.
September 6, 2011, Plaintiff Tony Beard, Jr., led the
Southfield police in a car chase. The chase concluded with
the police forcibly arresting Beard. As a result of his
arrest, he suffered a closed head injury, facial fractures,
bruising, chest abrasions, and taser scars. In April 2014,
Beard stood trial in Oakland County Circuit Court. A jury
convicted Beard of (1) fleeing and eluding the police, (2)
resisting and/or obstructing the police, and (3) possession
of marijuana. (Register of Actions, Dkt. 67-2.) Beard filed a
motion for a new trial, pursuant to M.C.R. 6.431, with the
state circuit court judge who had presided over the jury
trial. She granted Beard's motion for a new
trial on the resisting and/or obstructing the
police charge, thus eliminating one of the three criminal
convictions against him. In her Opinion and Order Granting in
Part Defendant's Motion for New Trial and/or Acquittal of
Charges, she stated "[b]ased on the testimony elicited
during trial, the Court finds that the verdict of guilty. . .
.as to [Beard] resisting and obstructing the police was a
miscarriage of justice. Therefore, Defendant's motion for
new trial and/or acquittal is granted in part." (Dkt.
67-3, at 2.) The court offered no further analysis or
explanation in the order granting the new trial. The docket
shows no new trial commenced.
state pursued the criminal matter against Beard, Beard filed,
in federal court, this lawsuit asserting several civil claims
including a Fourth Amendment claim that the police used
excessive force during his arrest. During discovery for this
civil action, Beard attempted to depose the state circuit
court judge. (Dkt. 67.) Defendants filed a motion for
protective order to stop the deposition. (Dkt. 67.)
Defendants' motion was granted. (Dkt. 71.)
the Court here, is a motion in limine from the police officer
Defendants. They ask the Court to prohibit Beard from
introducing evidence regarding the criminal conviction for
resisting and obstructing a police officer, claiming that the
evidence that this conviction was later set aside is
prejudicial and irrelevant. (Dkt. 191.) Implicit in this
motion, and indeed mentioned in their introduction, is the
desire to prohibit Beard from introducing any evidence
regarding the resisting and/or obstructing police criminal
count, the jury conviction, or the conviction's set aside
when the judge granted the new trial motion.
say the circuit court judge's decision is not relevant
evidence and thus should be excluded under Federal Rule of
Evidence 401. They argue, the fact that prosecutors failed to
present sufficient evidence in Beard's criminal trial
cannot inform this civil suit. Defendants also assert that
even if the set aside conviction were relevant evidence, such
evidence would be prejudicial and improperly bolster
Beard's credibility and should be excluded under
claims the circuit court's decision to grant a new trial
is relevant, because it will help “the jury better
understand all the overall facts and criminal charges that
were previously brought against [Beard].” Beard also
claims the danger of unfair prejudice, confusing the issues,
or misleading the jury, do not outweigh the probative value.
Finally Beard claims the evidence should be admissible under
Fed.R.Evid. 803(8) as a public record, Fed.R.Evid. 803(6) as
a record of regularly conducted activity, and Fed.R.Evid.
803(22) as a judgment of previous conviction.
Court will Grant Defendants' motion in limine. Beard is
correct that had the conviction stood, the fact that a jury
had found beyond a reasonable doubt that Beard resisted
arrest would have been relevant evidence. For an excessive
force claim, the “[r]elevant considerations include
‘the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the
officers or others, and whether [the suspect] is actively
resisting arrest or attempting to evade arrest by
flight.” Fox v. DeSoto, 489 F.3d 227, 236
(6th Cir. 2007) (quoting Graham v. Connor, 490 U.S.
386, 396 (1989))(emphasis added). Thus any evidence which
proves or disproves that Beard resisted arrest is relevant to
the Fourth Amendment excessive force claim. A criminal
conviction of Beard for resisting arrest would certainly be
relevant evidence in determining if Defendants used excessive
the lack of a criminal conviction is not relevant. A jury
provides factual conclusions, beyond a reasonable doubt, when
it finds a criminal guilty. A non-conviction however comes
with no such conclusions. It may represent a deficiency in
all elements or only one. It may be a deficiency in the
burden of proof. For instance, it is possible there is a
preponderance of evidence in support of conviction, but that
there is not enough to meet the higher burden in a criminal
matter. It may be, as the Defendants suggest, simply a matter
of the prosecutor's short comings. Thus, a non-conviction
typically is not used as evidence in a civil matter.
“[A] prior acquittal is not relevant because it does
not prove the defendant's innocence, but rather merely
indicates that the prior prosecution failed to meet its
burden of proving beyond a reasonable doubt at least one
element of the crime.” Com. of Kentucky v. Louis
Trauth Dairy, Inc., 145 F.3d 1330, at *3 (6th Cir.
1998)(citing United States v. One Assortment of
89 Firearms, 465 U.S. 354, 361 (1984)).
“Generally, a criminal acquittal is not admissible in a
subsequent civil proceeding.” Com. of
Kentucky, 145 F.3d at *3 (citing McKinney v.
Galvin, 701 F.2d 584 (6th Cir. 1983)).
fact that the circuit court judge granted a new trial makes
Beard's non-conviction no more relevant. Under Michigan
Code of Criminal Procedure, M.C.L. § 770.1 Granting New
Trial to Defendant, and under Michigan Court Rules, M.C.R.
6.431 New Trial, “the operative principles regarding
new trial motions are that the court may, in the interest of
justice or to prevent a miscarriage of justice, grant the
defendant's motion for a new trial.” People v.
Lemmon, 456 Mich. 625 (1998). Under this standard, there
is still no determination of innocence, and only a decision
that the prosecution has not met its burden of proof.
the fact that the state did not convict Beard of resisting
and or obstructing his arrest is not relevant evidence and
for that reason alone may be excluded under Fed.R.Evid. 401.
are also correct that this information would be prejudicial.
Evidence that a circuit court judge had heard similar
evidence in a criminal trial, and found it insufficient to
find Beard guilty beyond a reasonable doubt that he had
resisted arrest, would impact their own judgment of the
evidence presented to them. It is the jury's judgment of
the evidence presented to them under an entirely different
burden that applies. The danger of jury confusion greatly
outweighs the evidence's limited probative value.
United States v. Castro-Ramirez, 461 Fed.Appx. 467,
469 (6th Cir. 2012)(holding the district court properly
excluded testimony that the ...