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Green v. Schroeder

United States District Court, W.D. Wisconsin

September 5, 2016

STEVEN A. GREEN, Plaintiff,



         This matter is set for trial to begin on September 12, 2016. In advance of the parties' final pretrial conference, which will take place on September 6, 2016, at 3:00 p.m., this order addresses the parties' motions in limine.

         A. Plaintiff's motions in limine

         1. Defendant should be barred from referring to plaintiff's prior criminal convictions related to sex offender status and registration (Dkt. #121)

         In his first motion in limine, plaintiff argues that his two felony convictions for violating Wis.Stat. § 301.45(4)(a), “Sex Offender-Fail/Update Information, ” and Wis.Stat. § 301.45(6)(a)(1), “Sex Registry Violation, ” are unfairly prejudicial and should not be mentioned by defendant. In response, defendant argues that the jury should be allowed to consider those two felony convictions, along with five others, in evaluating his character for truthfulness.

         Since Green was released from confinement for these two felonies within the last ten years, the parties agree that these felonies must be admitted unless their “probative value is substantially outweighed by a danger of . . . unfair prejudice[.]” Fed.R.Civ.P. 609(a)(1)(A); 403. Defendant argues that any prejudice resulting from the admission of Green's two felony convictions for sex offender registration violations is limited because Schroeder's counsel will only ask about the date and name of each conviction. Assuming Green answers those questions accurately, then no further evidence need be introduced regarding those crimes. Defendant also argues that the two convictions are particularly probative because Green has contradicted his own statements regarding the events on which this lawsuit is based, and so the jury must be presented with “complete information” to evaluate his character for truthfulness. (Def.'s Opp'n Br. (dkt. #146) at 3.) On the other hand, plaintiff correctly points out that revealing an individual's sex offender status often evokes strong, negative reactions.

         The court is persuaded that the danger of unfair prejudice substantially outweighs any probative value of the jury learning of the specific nature of these two convictions, including that they involve “sex offender” registration or update violations. Accordingly, plaintiff's motion will be GRANTED IN PART AND DENIED IN PART. No reference will be made to the name or nature of these two felony convictions, unless plaintiff were to deny felony convictions “for failing to make certain disclosures required by law.”[1]

         2. Plaintiff should be permitted to appear in civilian attire without visible restraints (Dkt. #122)

         Defendant does not oppose plaintiff's motion to wear civilian attire without visible restraints during the trial itself to avoid potential, unfair prejudice this may engender with the jury. The court will, therefore, GRANT plaintiff's motion, subject to resolution of any security concerns.

         B. Defendant's motions in limine

         1. Eyewitness statements in police reports should be excluded as hearsay (Dkt. #98)

         Defendant filed this motion before the court entered the order denying summary judgment and granting plaintiff's motion for assistance in recruiting counsel. Likely because the court reset deadlines for Rule 26(a)(3) disclosures and motions in limine after plaintiff obtained counsel, plaintiff never responded to this motion, and defendant did not re-file it after the new deadlines were established. Lacking any basis to evaluate whether witness statements referred to in police reports are being offered for the truth of the matter asserted or fall under any exception to the hearsay rule, the court will RESERVE on this motion pending argument at the final pretrial conference.

         2. Plaintiff should be barred from presenting any evidence that he suffered from post-traumatic stress disorder (“PTSD”) or another psychological condition as a result of defendant's actions (Dkt. #126)

         Having suffered no physical injuries, plaintiff claims damages for emotional and psychological harm caused by defendant shooting at him. In support of those claims, plaintiff seeks to introduce medical records from the Dane County Jail and DOC. Lacking any medical expertise, defendant objects to Green testifying as to any medical diagnosis or cause of PTSD (or any other medical or psychological condition). Defendant also argues that notes in Green's medical records that reference such diagnoses are also inadmissible as hearsay, since he has named no expert witness to testify about his medical or psychological condition. ...

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