Rudolph V. CAMPBELL, Jr., Plaintiff-Appellant, v. James GREER, et al., Defendants-Appellees.
No. 86-2256.
United States Court of Appeals, Seventh Circuit.
Decided Sept. 9, 1987.
Rehearing and Rehearing En Banc Denied Nov. 19, 1987.
831 F.2d 700
We need not decide whether any of the disparities in pay may have been due to the operation of “a seniority system,” another defense under the Act, see
The rub is that the statutory words “seniority system” may refer to seniority with the employer who is paying the different wages rather than to length of service with a previous employer, though the distinction may be artificial in a case such as this where the employee doesn’t change jobs but only the identity of his employer changes, by virtue of a reorganization. See EEOC v. Cleveland State University, 28 F.E.P.Cas. 1782, 1788-89, 1794 (N.D. Ohio 1982). But if as we believe the disparity was due to a factor other than sex, it does not matter whether that factor is a “seniority system” within the meaning of the statute.
If the only inequality in pay were that between Riordan and Atkinson (or the other former federal employee), we would affirm the dismissal of her Equal Pay Act claim. And while our analysis of why the two former federal employees were paid more than Riordan may not extend to the third male who was paid more, and who had only slightly more experience than Riordan and less time in the Department, we do not understand Riordan to be making an issue of that employee’s higher salary; if this is incorrect the matter can be pursued on remand—for the Equal Pay Act claim, too, must be remanded because of the district judge’s evidentiary rulings. They prevented Riordan from showing that other male employees in the Department of Public Health did the same work as she and were paid more but without the extenuating circumstances that justified the higher pay of the two former federal employees. We doubt whether the work of those other males (two of whom were accountants, and two supervisors of other units) was work equal to hers within the meaning of the Act, see EEOC v. Madison Community Unit School District No. 12, supra, 818 F.2d at 580-83; but this is a factual question and the district judge should have first crack at it.
The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. Circuit Rule 36 shall apply on remand.
So Ordered.
James S. Whitehead, Sidley & Austin, Chicago, Ill., for plaintiff-appellant.
William Frazier, Asst. Ill., Atty. Gen., Patricia Rosen, Ill. Atty. Gen., Chicago, Ill., for defendants-appellees.
Before BAUER, Chief Judge, POSNER, Circuit Judge, and WILL, Senior District Judge.*
Rudolph Campbell, an inmate at the Illinois state prison at Menard, appeals from a judgment for the Illinois prison officials and guards whom Campbell sued under section 1 of the Civil Rights Act of 1871, now
The magistrate gave the following instruction (we have corrected the punctuation slightly), to which Campbell objects:
In order for plaintiff to prevail it must be shown that defendants actually intended to deprive him of reasonable protection, or that defendants acted with deliberate indifference to plaintiff’s legitimate need for protection. When I use the phrase “deliberate indifference” I mean conduct which intentionally or deliberately or recklessly ignores any person’s constitutional rights. Deliberate indifference is established only if there is actual knowledge of impending harm rather than a mere suspicion that plaintiffs would be assaulted and [if] the defendants consciously and culpably refused to take steps to prevent this assault.
Mere negligence or inadvertence does not constitute deliberate indifference.
We find no error in this instruction, though we would prefer to have seen it worded less legalistically, with shorter sentences and less reliance on words that are not a secure part of most people’s vocabulary, such as “culpable.” But if jury instructions had to be in Basic English to pass muster on appellate review, few jury verdicts would be upheld.
The instruction follows closely the standard we announced in Duckworth v. Franzen, 780 F.2d 645, 653 (7th Cir. 1985). See also Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1094 (7th Cir. 1986). In Duckworth a prisoner had been killed and several seriously injured when a prison bus caught fire and the prisoners’ egress was impeded by measures that had been taken to make the bus secure. In reversing a judgment for the plaintiffs we said that the prison officials who were responsible for those measures would not have been liable even if they had been negligent or even grossly negligent in failing to foresee the danger of a fire and strike a reasonable balance between that danger and the danger of an escape. Negligence, and a fortiori gross negligence, would be enough for ordinary tort liability but the Eighth Amendment is not a tort statute. Liability under the Eighth Amendment requires punishment, and punishment requires more than negligence, whether ordinary or gross. It requires, at a minimum, that the prison officials have realized there was imminent danger and have refused—consciously refused, knowingly refused—to do anything about it. The Supreme Court quoted our Duckworth standard with apparent approval in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251 (1986).
The defendants in this case likewise could not be held liable unless they were shown to have had “actual knowledge of impending harm” and to have “consciously and culpably refused to take steps to prevent” it from occurring, as the instruction stated. If Campbell had told the prison staff that he was the target of a “hit” and his cell should therefore be placed on “deadlock” (the standard protective measure in such a case, as the defendants concede), and the staff misunderstood or forgot or inadvertently deadlocked the wrong cell or disbelieved him or got the time wrong, these facts might demonstrate negligence or even gross negligence but would not be “punishment” as we defined it in Duckworth v. Franzen. Only if the defendants believed that Campbell was in serious danger and they decided to do nothing would they be liable. That was indeed a possible interpretation of the facts. If the jury had thought that Campbell and his witnesses were telling the truth, it could have concluded that the defendants must have known of the danger to him and must have deliberately refused to do anything about it. It is not unknown for guards to take a strong dislike to a particular prisoner even to the point of refusing to take measures to protect him from a “hit“; he might be unpopular among his fellow inmates for the same reasons he is unpopular among the guards. Guards who do this are reckless (or worse) in the criminal or quasi-criminal sense that we said in Duckworth v. Franzen is the only sense of recklessness that is relevant to liability for
Although we think the instruction was correct, we add that this is not a case in which the nuances of the instructions were likely to spell the difference between victory and defeat for the plaintiff. The jury believed either the plaintiff and his witnesses, or the defendants. The former testified to Campbell‘s having repeatedly warned the defendants of his peril; if the jury believed them it was quite likely to infer intentional or reckless misconduct from the defendants’ failure to take the standard simple precaution of deadlocking his cell. If instead the jury believed the defendants, it would exonerate them from any wrongdoing, since they testified that Campbell never told them he was in danger. The essence of this case was credibility, not instructions.
But this point merely brings to the fore Campbell‘s second ground for a new trial—the use of his rape conviction to impeach his credibility as a witness. This ground requires us to consider the vexing question of the proper use of a criminal conviction to impeach a witness in a civil trial. Discussed at length—but without conclusion—in Christmas v. Sanders, 759 F.2d 1284, 1289-91 (7th Cir. 1985), it is a question of first impression in this circuit. For a comprehensive and up-to-date discussion see Note, Prior Convictions Offered for Impeachment in Civil Trials: The Interaction of Federal Rules of Evidence 609(a) and 403, 54 Fordham L.Rev. 1063 (1986).
The use of prior convictions to undermine the confidence of the trier of fact that a witness is telling the truth is addressed in
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
Campbell’s first submission is that subsection (1) of this rule required the magistrate, before admitting the evidence of Campbell’s conviction for rape, to balance its prejudicial effect against its probative value. We disagree. The rule requires such balancing only when there is prejudicial effect “to the defendant,” and Campbell is the plaintiff. If the defendant is not prejudiced, and the evidence otherwise satisfies the requirements of the rule, it is admissible, period; at least that is what the rule seems to say. Campbell argues that it would be absurd to read the rule literally, for that would allow a defendant in a civil case, but not a plaintiff, to complain about the use of his criminal record to impeach. That would indeed be absurd. It would load the dice in favor of defendants in civil cases, even though it is often a matter of happenstance in a civil suit which party is plaintiff and which defendant. As is true of many rules and statutes,
An interpretation of the rule that is more in keeping with its background and legislative history is that the only witness who may demand a balancing of the prejudicial value of his criminal record against its probative effect is the defendant in a criminal trial. As pointed out in the Note of the Advisory Committee on Proposed Rule 609, the dominant approach at common law was “to allow use of felonies generally, without regard to the nature of the particular offense,” to be used to impeach a witness’s credibility, even when the witness was a criminal defendant, who might be inhibited from taking the witness stand by fear of the adverse impact on his chances of ac-
The Senate Judiciary Committee adopted a modified version of the House bill. The Senate bill confined the use of convictions to impeach the credibility of a criminal defendant to prior crimes (whether felonies or misdemeanors) involving dishonesty or false statements, but as to other witnesses restored the House subcommittee’s balancing test for convictions, except that, as in the case of criminal defendants, convictions involving dishonesty or false statements could be used to impeach a witness without bothering with a balancing test. See S.Rep. No. 1277, 93d Cong., 2d Sess. 14 (1974), U.S.Code Cong. & Admin.News 1974, p. 7051. If the Senate bill had been enacted, Campbell would be correct that the magistrate was required to balance the probative value (as impeachment) of his conviction for rape (not a crime of dishonesty or false statement as these terms are understood in the present context) against the prejudicial effect of the conviction on his civil case. But the Senate bill was not enacted, as is obvious from a glance at the text of
The change is explained in the Conference Report: the Conference determined that the prejudicial effect to be weighed against the probative value of the conviction is specifically the prejudicial effect to the defendant. The danger of prejudice to a witness other than the defendant (such as injury to the witness’ reputation in his community) was considered and rejected by the Conference as an element to be weighed in determining admissibility. It was the judgment of the Conference that the danger of prejudice to a nondefendant witness is outweighed by the need for the trier of fact to have as much relevant evidence on the issue of credibility as possible. Such evidence should only be excluded where it presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior criminal record. H.R.Rep. No. 1597, 93d Cong., 2d Sess. 9-10 (1974), U.S.Code Cong. & Admin.News 1974, p. 7103 (emphasis in original). This could not be clearer. The only prejudicial effect that the judge is to consider in ruling on the admissibility of a prior conviction is the prejudicial effect on the defendant in a criminal trial; as to all other witnesses, prior convictions are admissible for purposes of impeachment without any balancing test. See Linskey v. Hecker, 753 F.2d 199, 201 (1st Cir. 1985); McCormick on Evidence § 43, at p. 94 (3d ed. 1984); cf. United States v. Martin, 562 F.2d 673, 680 n. 16 (D.C. Cir. 1977) (dictum).
Some cases, illustrated by Petty v. Ideco, 761 F.2d 1146, 1152 (5th Cir. 1985), disagree with this conclusion and hold that the balancing test is applicable to any witness, but we do not find these cases persuasive in light of the language and legislative history of
Campbell has a back-up submission, however. It is that a conviction offered for purposes of impeachment can be excluded under
However, the rule is not limited in terms to criminal trials, and some Congressmen as we have just noted thought it would apply to civil trials as well. Moreover, the impression conveyed by the detail of the rule and by the legislative history is that Congress and the Advisory Committee thought they were dealing exhaustively in
We do not pretend that these arguments are conclusive; we point out that one Congressman thought that what is now
The point can be generalized: the concerns that drove Congress in
We conclude that
The Eighth Circuit has followed Shows, but without adding to it. See, e.g., Czajka v. Hickman, 703 F.2d 317, 319 (8th Cir. 1983). A chain of precedent is no stronger than its weakest link, which is Rozier. The First Circuit recently upheld the exclusion of a conviction under
Campbell’s final submission is that the defendants should not have been allowed to bring out the nature of his felony, i.e., that it was a rape. They should only have been allowed to bring out the fact that he was a duly convicted felon. There is no precedent for withholding the identity of the felony from the jury when using a conviction to impeach a witness’s testimony, and we are not minded to create one. Most jurors have only an indistinct sense of the range of offenses connoted by the term “felony“; defining it as a crime punishable by death or imprisonment for more than one year (the federal—not the universal—definition) would add little to their understanding.
The proposition that felons perjure themselves more often than other, similarly situated witnesses (e.g., a criminal defendant who has not been convicted of a felony or a prisoner in a civil rights suit whose only prior conviction is a misdemeanor) is one of many important empirical assertions about law that have never been tested, and may be false. It is undermined, though not disproved, by psychological studies which show that moral conduct in one situation is not highly correlated with moral conduct in another. See, e.g., Burton, Generality of Honesty Reconsidered, 70 Psych. Rev. 481 (1963), and other studies cited in Lawson, Credibility and Character: A Different Look at an Interminable Problem, 50 Notre Dame Lawyer 758 (1975), especially at 783-89. These studies may—or may not—imply that a crook is no more likely, or not much more likely, to lie than a law-abiding person. But that crookedness and lying are correlated is the premise of
All this is not to say that the opposing party may harp on the witness’s crime, parade it lovingly before the jury in all its gruesome details, and thereby shift the focus of attention from the events at issue in the present case to the witness’s conviction in a previous case. He may not. See, e.g., United States v. Cox, 536 F.2d 65, 68, 71 (5th Cir. 1976). Essentially all the information that the cross-examiner is permitted to elicit is the crime charged, the date, and the disposition. These limitations are well established in the criminal context, see, e.g., United States v. Dow, 457 F.2d 246, 250 (7th Cir. 1972); United States v. Castro, 788 F.2d 1240, 1246 (7th Cir. 1986), and, as we can think of no reason why they should not apply equally in civil cases, we hold that they do—a conclusion foreshadowed by Rascon v. Hardiman, 803 F.2d 269, 277-78 (7th Cir. 1986). They may have been exceeded here. There was no reason for
Affirmed.
WILL, Senior District Judge, concurring.
I agree that, given the fact that the ultimate question the jury determined in this case was one of the credibility of the plaintiff’s and defendant’s witnesses and that the trial judge’s errors, if any, on the admissibility of evidence and instructions were not material, the jury’s verdict should be affirmed. I write separately, however, because I believe some of Judge Posner’s opinion is erroneous dictum.
As the opinion recognizes, a literal reading of
He then goes on to conclude that, since Congress dealt specifically in
Moreover, since
In support of this conclusion, Judge Posner finds it an “unacceptable implication” that
This, I believe, is throwing the baby out with the bath.
I have confidence that trial judges exercise their discretion under both
What particularly concerns me is that such a sweeping conclusion is unnecessary to the decision in this case. The trial judge permitted the rape conviction evidence to be received, finding that its probative value as to plaintiff’s credibility was not outweighed by its prejudicial effect. That was a judgment call which was not clearly erroneous. Accordingly, affirmance does not require that we write into
In sum, I agree that
Even when admitted in a civil case, however, evidence of a prior conviction may not, as it may not in a criminal case, be used as a tail to wag the dog, as an effort to prejudice the jury on the merits rather than being simply one element in the determination of credibility. The trial judge has a responsibility to see that it is not. I believe the proper limits of such use were exceeded by defense counsel here but for the reasons stated in Judge Posner’s opinion I do not believe a new trial is warranted. Accordingly, I concur.