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United States v. Palkowitsch

United States District Court, D. Minnesota

November 8, 2019

United States of America, Plaintiff,
v.
Brett Palkowitsch, Defendant.

          ORDER ON MOTIONS IN LIMINE

          Wilhelmina M. Wright United States District Judge

         This matter is before the Court on Plaintiff United States of America's seven motions in limine, (Dkts. 41, 42, 43, 44, 45, 46, 47), and Defendant Brett Palkowitsch's four motions in limine, (Dkts. 60, 62, 64, 77). The Court addresses each motion in turn.

         I. The United States's Motions

         A. Use-of-Force Testimony

         The United States moves to exclude five categories of the proposed testimony of Mark Bruley, Palkowitsch's use-of-force expert. (Dkt. 41.) Specifically, the United States seeks to exclude: (1) testimony as to Palkowitsch's mental state; (2) testimony that Palkowitsch's use of force was “lawful, ” “reasonable, ” or “appropriate;” (3) testimony referencing otherwise inadmissible evidence; (4) testimony instructing the jury on the legal standard governing Palkowitsch's use of force; and (5) testimony resolving disputed issues of fact.[1]

         1. Testimony Regarding Palkowitsch's Mental State

         The United States moves to preclude Bruley from offering an opinion on Palkowitsch's mental state at the time of the incident at issue in this case. Rule 704(b) of the Federal Rules of Evidence provides that, “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Palkowitsch is charged with violating 18 U.S.C. § 242. To convict Palkowitsch under that statute, the United States must prove beyond a reasonable doubt four elements, including that Palkowitsch acted willfully. In other words, the United States must prove that Palkowitsch acted with the “specific intent to deprive [Frank Baker] of his constitutional rights.” United States v. Boone, 828 F.3d 705, 711 (8th Cir. 2016). Because Palkowitsch's mental state is an element of the charged offense, the United States's motion is granted as to opinions pertaining to Palkowitsch's mental state.

         2. Testimony Whether Palkowitsch's Use of Force Was Lawful

         The United States moves to prohibit Bruley from testifying as to the reasonableness of Palkowitsch's use of force against Baker because it is an impermissible legal conclusion. While statements of legal conclusions that are not grounded in a fact-based opinion may properly be excluded, see Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995), “[a]n opinion is not objectionable just because it embraces an ultimate issue, ” Fed.R.Evid. 704(a). For expert testimony to be admissible, however, it must be helpful to the trier of fact. Fed.R.Evid. 702(a); Lee v. Anderson, 616 F.3d 803, 808 (8th Cir. 2010). Opinions that merely tell the jury the result to reach are not admissible. Lee, 616 F.3d at 809 (citing Fed.R.Evid. 704 advisory committee's note). Here, the ultimate question is whether Palkowitsch's use of force against Baker was reasonable. Allowing Bruley to testify as to the reasonableness of Palkowitsch's use of force would necessarily allow opinion testimony that merely tells the jury the result to reach. This fact, without more, does not render such testimony inadmissible. But testimony about the reasonableness of Palkowitsch's use of force is not otherwise helpful and, therefore, not admissible. For this reason, the United States's motion is granted as to opinions pertaining to the reasonableness of Palkowitsch's use of force.

         3. Testimony Referencing Inadmissible Evidence

         The United States moves to (1) preclude Bruley from testifying that Baker uses illicit narcotics and (2) exclude hearsay statements made by unspecified officer-witnesses that appear in Bruley's report.

         Only relevant evidence is admissible. See Fed. R. Evid. 402. Whether Baker uses illicit narcotics has no tendency to make a fact of consequence as to Palkowitsch's guilt any more or less probable. See Fed. R. Evid. 401. Therefore, such testimony is irrelevant and inadmissible.

         As to the unspecified officer-witness statements that the United States seeks to exclude, such statements have not been identified or described with any particularity. Palkowitsch does not dispute that “[a]ny opinion that [an] expert is called upon to provide to the jury must be based upon the evidence that is actually admitted at trial.” The doctrine of judicial ripeness “safeguards against judicial review of hypothetical or speculative disagreements.” Neb. Pub. Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1038 (8th Cir. 2000). Here, the Court is left to speculate whether Palkowitsch will introduce inadmissible hearsay statements through Bruley's testimony and, if so, what those statements may be.

         Accordingly, the motion of the United States is granted to the extent that it seeks to exclude testimony about Baker's alleged use of illicit narcotics. But the motion is denied to the extent that it seeks to exclude unspecified officer-witness hearsay statements. Objections to specific hearsay statements will be resolved in the course of trial.

         4. Testimony Instructing the Jury on the Legal Standard

         The United States moves to preclude Bruley from instructing the jury on the legal standard governing the use of force by law enforcement and testifying about Minnesota's use-of-force laws and their application to this case.

         “[E]xpert testimony on legal matters is not admissible.” S. Pine Helicopters, Inc. v. Phoenix Aviation Managers, Inc., 320 F.3d 838, 841 (8th Cir. 2003). “Matters of law are for the trial judge, and it is the judge's job to instruct the jury on them.” Id. The legal standard governing Palkowitsch's use of force against Baker is a legal question. It is the Court's role, and no one else's, to instruct the jury on the law.

         Only relevant evidence is admissible. See Fed. R. Evid. 402. Minnesota laws governing the use of force by police officers and whether those laws were violated in this case are not relevant. Cf. Screws v. United States, 325 U.S. 91, 108 (1945) (explaining that, in a deprivation-of-rights case, “[t]he problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under ‘color of any law” and “[t]he fact that [the officer's action] is also a violation of state law does not make it any less a federal offense punishable as such”).

         Accordingly, the United States's motion is granted as to testimony about the legal standards and Minnesota laws governing the use of force by law enforcement.

         5. Testimony Resolving Disputed Issues of Fact

         The United States moves to exclude opinion testimony by Bruley that purports to resolve disputed factual issues. Expert testimony is admissible only if it is helpful to the finder of fact. Fed.R.Evid. 702. Testimony that tells the jury the result it should reach-or the facts it should find-is not admissible. See Lee, 616 F.3d at 809. “[T]here is a critical distinction between an expert testifying that a disputed fact actually occurred . . . and an expert giving an opinion based upon factual assumptions, the validity of which [is] for the jury to determine.” Thomas v. Barze, 57 F.Supp.3d 1040, 1059 (D. Minn. 2014) (internal quotation marks omitted). “The former is manifestly improper, the latter is not.” Id. (concluding that the expert's report is inadmissible because “it includes both statements that directly opine on what factually occurred, and otherwise permissible expert opinions which are too intertwined with Defendants' version of events and fail to clarify that assumption”). For these reasons, the United States's motion is granted to the extent that Bruley's testimony shall not include statements that directly opine on whether a disputed fact occurred and shall not provide any opinion without clarifying that his opinion is based on factual assumptions that comport only with Palkowitsch's version of events.

         B. Character Evidence

         The United States moves to exclude certain character evidence, namely, evidence of specific instances of conduct demonstrating Palkowitsch's good character, such as awards or positive evaluations, and any other character evidence that is “calculated to ...


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