The Stupidest Motion In Limine I Ever Read

Perhaps the Attorney General's office will submit a jury charge requesting that jurors be told that police officers are our friends. In this case, arising under 42 U.S.C. Section 1983, the defendants are alleged to have brutalized a young man. The officers, surprise, deny it.Moral: You can the shit out of some hapless little ni@#er when no one is looking, but you just can't call a spade a spade. Corollary: Don't impugn the integrity of a jail house snitch.
Plaintiff, :
v. :
Defendants. : May 14, 2010
RE PRECLUSION OF TESTIMONY AND ARGUMENT The defendants respectfully request this court to preclude from trial all testimony and argument regarding such the "Blue Wall of Silence" or the "Code of Silence," other testimony elicited from witnesses, or argument by counsel suggesting the existence of a generalized cultural tendency on the part of these defendants, or other police officers, to lie under oath or withhold evidence for the benefit of their fellow police officers.1 The purpose of such lines of questioning or argument is solely to (1) unfairly inflame the prejudices of the jury by insinuating that the veracity of police officers – and these defendants - is inherently suspect without a good faith factual basis for so doing, in violation of Federal Rules of Evidence, Rule 403; and (2) introduce alleged "uncharged
The "Blue Wall of Silence" has been characterized as "the reluctance of members of law enforcement to act upon the misconduct of other members." Similarly, the "Code of Silence" has been defined as "that unwritten, often unspoken, rule that prohibits members of law enforcement from reporting the misconduct of other members." See Hill v. City of New York, 2007 U.S. Dist. LEXIS 48641 at *6-*7; 73 Fed. R. Evid. Serv. (Callaghan) 1137 (E.D.N.Y. 2007) (precluding expert testimony on the "Blue Wall of Silence" or "Code of Silence" among police officers as of limited helpfulness to the trier of fact, and inappropriate where plaintiff has provided little or no support to show that these phenomena are applicable). misconduct" or a speculative insinuation of prior bad acts on the part of the defendants, or police officers in general, into the proceedings in violation of F.R.E. Rule 404. A jury’s verdict must be based upon the evidence developed at the trial. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). A jury capable and willing to decide the case solely on the evidence before it is one touchstone of a fair trial. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). See also, Housden v. United States, 517 F.2d 69, 70 (4th Cir. 1975) (The right to trial by an impartial jury which decides the case on the basis of the evidence submitted at trial is paramount in our system of justice).
Disparaging attacks on witnesses without evidence of misconduct are inappropriate and prejudicial, see Draper v. Airco, Inc., 580 F.2d 91, 96, (3rd Cir. 1978), whether put forth during the direct or cross-examination of witnesses, or during arguments of counsel. See City of Cleveland v. Peter Kiewit & Sons Co., 624 F.2d 749, 756 (6th Cir. 1980). Accordingly, district courts often exclude generalized evidence of a code of silence, but permit plaintiffs to develop the theme that a code of silence existed among the particular officers involved in the events underlying the complaint. See Hillard v. City of Chicago, 2010 U.S. Dist. LEXIS 39981 at *8 (N.D. Ill. 2010). Even so, such inquiry must be founded upon a good faith evidentiary basis and not simply constitute a "fishing expedition" to be conducted in the presence of the jury.
None of the defendants is so senior a law enforcement official that the existence of a custom or policy condoning silence can be attributed to them, and no such allegation of supervisory liability is made in the complaint. Similarly, the complaint contains no allegations of a conspiracy of any sort, much less one to lie or otherwise mislead the jury as to the true facts of the subject incident to protect a defendant’s fellow officers from liability for wrongdoing. While counsel for the plaintiff may examine the defendants on an individual basis concerning each witness’ alleged motivation to lie, if any, to protect himself from potential liability, counsel should be precluded from making reference to a generalized practice among police officers to do so, and should be required to refrain from mentioning the "Blue Wall of Silence" or the "Code of Silence," or similar phrases or concepts without a good faith evidentiary basis for so doing. If such a basis exists, counsel should be required to inform the court and opposing counsel of his intention to pose questions or argument along these lines so that any objections thereto can be resolved out of the presence of the jury. See Baldwin v. Silva, 2007 U.S. Dist. LEXIS 87822 at *3 (D.Conn. 2007).
WHEREFORE, the defendants request this court to preclude the plaintiff’s counsel from eliciting testimony regarding, or mentioning during argument, the "Blue Wall of Silence" or the "Code of Silence," or similar phrases or concepts without advance notice and a good faith evidentiary basis for so doing.
3 Case 3:08-cv-00494-SRU Document 81 Filed 05/14/10 Page 3 of 4 4
Blake Stine, Robert Criscuolo, Sean Krauss, Michael Siegler, Michael Depalma, William Degoursey and Thomas Flaherty

About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


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