### In the



# United States Court of Appeals

For the Seventh Circuit

No. 12

‐ 2779

T HADDEUS J IMENEZ

, Plaintiff

‐ Appellee

,

v.

C ITY OF C HICAGO

, et al.

, Defendants

‐ Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 09 C 08081

— Matthew F. Kennelly

, Judge.

A RGUED J UNE 5, 2013

— D ECIDED October 7, 2013

Before B AUER

, E ASTERBROOK

, and H AMILTON

, Circuit Judges.

H AMILTON

, Circuit Judge. When he was fifteen years old,

plaintiff Thaddeus Jimenez was convicted of a murder he did

not commit. He spent sixteen years in prison before he was

exonerated. Jimenez then filed this lawsuit under 42 U.S.C. §

1983 and state law against the City of Chicago and a former

Chicago police detective, Jerome Bogucki, for violating his

constitutional right to due process of law and for malicious

prosecution. In January 2012, a jury found for Jimenez and

awarded him $25 million in compensatory damages. The2 No. 12

‐ 2779

district court denied the defendants’ motions for a new trial

and for judgment as a matter of law. Jimenez v. City of Chicago

,

877 F. Supp. 2d 649, 653–54 (N.D. Ill. 2012). Defendants now

appeal. We affirm the judgment in favor of Jimenez.

I. Factual and Procedural Background

The following facts reflect the evidence in the light most

favorable to Jimenez, the non

‐ moving party who won the jury

verdict. Further factual details are set forth in the district

court’s order denying the defendants’ post

‐ trial motions.

In February 1993, Victor Romo and another boy

encountered Eric Morro on a street in Chicago. The boy with

Romo shot and killed Morro. Romo always identified the

shooter as Juan Carlos Torres. Larry Tueffel, a friend of

Morro’s, was present at the shooting, and Tina Elder and Phil

Torres were close by.

Detective Bogucki investigated the murder. Bogucki used

coercive tactics to convince Tueffel and Phil Torres to falsely

identify Jimenez as the shooter. Bogucki also tainted the

testimony of other witnesses. For example, he arranged for

Elder to see a picture of Morro’s corpse next to a picture of

Jimenez before she was shown a line

‐ up and identified Jimenez

as the shooter. Bogucki also knew that Jimenez owned a blue

and white Duke University jacket, so he planted with the

witnesses the idea that the shooter was wearing that color and

style of jacket.

Jimenez was fifteen years old in October 1994 when he was

tried as an adult for the murder of Morro. Tueffel, Elder, and

Torres all testified that Jimenez was the shooter. Romo, whoNo. 12

‐ 2779 3

had been with the shooter, testified that Juan Carlos Torres was

the shooter. Jimenez was convicted and sentenced to fifty years

in prison. For reasons unrelated to this appeal, his conviction

was overturned and he was retried in 1997. The same

witnesses testified at his second trial and gave essentially the

same testimony. Jimenez was again convicted and sentenced,

this time for forty

‐ five years.

Years passed, and Tueffel was in a mental health facility

after being diagnosed with paranoid schizophrenia. In 2006, he

was contacted by an investigator working for the

Northwestern University Center on Wrongful Convictions.

Tueffel volunteered that Jimenez was innocent. Using Tueffel’s

statements, investigators then confronted Elder about her

identification of Jimenez. She disclosed that her identification

of Jimenez in the lineup had been tainted because she had been

shown his picture just before she identified him. In 2008, the

investigators convinced the Cook County State’s Attorney to

reopen the case. State investigators discovered more evidence

indicating Jimenez’s innocence. Then, in May 2009, the State’s

Attorney and Jimenez’s lawyers sought to vacate his

conviction. A judge of the Circuit Court of Cook County did

so, and Jimenez was later granted a certificate of innocence.

Jimenez filed a complaint against the City of Chicago and

Detective Bogucki. The case went to trial against Bogucki on

two counts alleging federal claims under 42 U.S.C. §1983 for

deprivation of due process and conspiracy to do so and a state

law claim for malicious prosecution, and against the City of

Chicago for direct liability or indemnification for any judgment

against Bogucki. The jury found for Jimenez on all claims. The

defendants moved for a new trial under Federal Rule of Civil4 No. 12

‐ 2779

Procedure 59 and judgment as a matter of law under Rule 50.

The district court denied both motions.

The defendants have appealed, arguing that the district

court erred in denying their post

‐ trial motions and raising an

evidentiary issue. They argue that the district court erred

during jury selection by granting Jimenez’s Batson challenge to

a peremptory strike and by failing to give a jury instruction

limiting the due process violations the jury could consider.

Defendants also argue they are entitled to judgment as a

matter of law under Rule 50 because Jimenez failed to prove

his due process claim with sufficient evidence by not entering

into evidence the complete transcripts of each of his state

criminal trials. Finally, defendants argue that admitting one

expert’s testimony on reasonable police practices in murder

investigations was a reversible error that warrants a new trial.

We reject all of these challenges to the verdict. 1

II. The Batson Issue

During jury selection, the defendants used two of their

three peremptory strikes against the only two African

‐

American jurors in the venire. Jimenez challenged the strikes

of both under Batson v. Kentucky

, 476 U.S. 79 (1986), which held

1 In exchange for dismissal of Jimenez’s punitive damages claim, Bogucki

stipulated on the record after the jury’s verdict that his actions had violated

Jimenez’s constitutional rights and that the verdict was “correct in every

way.” Tr. 2980. Jimenez argues that Bogucki’s stipulation forecloses any

arguments the defendants might make on appeal. We disagree. The context

of the stipulation makes plain that the parties still expected this appeal. The

stipulation did not waive any arguments that Bogucki or defense counsel

have made before this court.No. 12

‐ 2779 5

unconstitutional the use of peremptory challenges based on

race. The district judge sustained Jimenez’s objection to one

juror, concluding that defense counsel’s stated reasons for

striking juror S.M. were not credible. See United States v.

Rutledge

, 648 F.3d 555, 556–57 (7th Cir. 2011) ( Batson “requires

the district court to make a finding of fact regarding the

prosecutor’s credibility after the prosecutor has offered a

race

‐ neutral reason for the strike”). The judge explained that

the defense had failed to strike a similarly situated white juror,

which undermined the credibility of counsel’s stated reasons

for the strike of S.M.. The defendants had not tried to challenge

S.M. for cause.

The defendants argue that the district court erred and that

the error was compounded when the court did not give them

another chance to exercise an additional peremptory strike to

replace the one they lost. Defendants face a steep climb on the

merits of this argument. See Rice v. Collins

, 546 U.S. 333, 338

(2006) (“On direct appeal in federal court, the credibility

findings a trial court makes in a Batson inquiry are reviewed

for clear error.”). We do not reach the merits of the argument,

however. There was no reversible error because the defendants

have not shown that a biased juror sat on the jury. Even if the

district court might have erred in sustaining Jimenez’s Batson

challenge, which we do not decide, any error would have been

harmless.

This question is governed by two decisions of the Supreme

Court, United States v. Martinez

‐ Salazar

, 528 U.S. 304 (2000), and

Rivera v. Illinois

, 556 U.S. 148 (2009). In Martinez

‐ Salazar

, a

criminal defendant was forced to use one of his peremptory

challenges to cure the trial court’s erroneous denial of a6 No. 12

‐ 2779

challenge for cause. He was entitled to exercise peremptory

challenges pursuant to Federal Rule of Criminal Procedure

24(b), but the Court held that the loss of one of his

peremptories did not impair his rights under that rule. “[A]

principal reason for peremptories,” the Court explained, is “to

help secure the constitutional guarantee of trial by an impartial

jury.” Martinez

‐ Salazar

, 528 U.S. at 316. Having “received

precisely what federal law provided,” and having been tried

“by a jury on which no biased juror sat,” Martinez

‐ Salazar

could not “tenably assert any violation of his

... right to due

process.” Id

. at 307, 317.

The Court extended this principle to a trial court’s error in

sustaining a Batson challenge in Rivera v. Illinois

, 556 U.S. 148

(2009). Rivera, a state criminal defendant, appealed the state

trial court’s rejection of his peremptory strike of a Hispanic

juror who then sat on the jury that convicted him. The

Supreme Court of Illinois found that the record failed to

support a Batson challenge against that juror and that the trial

court should have allowed Rivera’s peremptory strike. See

556 U.S. at 155, citing State v. Rivera

, 879 N.E.2d 876, 884 (Ill.

2007). The state court found, however, that because Rivera

could not show that a biased juror sat on his jury, the trial

court’s error in sustaining the Batson challenge was harmless.

Id

. at 155–56, citing Rivera

, 879 N.E.2d at 887, 890–91.

The Supreme Court of the United States affirmed, following

Martinez

‐ Salazar and holding that the erroneous denial of a

peremptory challenge does not require automatic reversal of

a defendant’s conviction as a matter of federal law. Id

. at 156.

Instead, errors are to be assessed by inquiring whether the jury

that actually decided the case was qualified and impartial. SeeNo. 12

‐ 2779 7

id

. at 157–59; Martinez

‐ Salazar

, 528 U.S. at 316–17; see also

Ross v. Oklahoma

, 487 U.S. 81, 91 (1988) (failure of trial court to

remove juror for cause, with the result that defendant had to

use a peremptory challenge to remove the juror, did not

deprive defendant of right to impartial jury even though error

changed composition of jury); United States v. Polichemi

,

219 F.3d 698, 705–06 (7th Cir. 2000). Under Martinez

‐ Salazar and

Rivera

, therefore, unless the defendants can show that a biased

or otherwise unqualified juror sat on the jury that rendered the

verdict against them, any error in granting Jimenez’s Batson

challenge would have been harmless.

The defendants actually concede this point as a matter of

federal constitutional law. They argue, though, that we should

apply a different standard and reverse on the basis of the

federal statutes and rules providing peremptory challenges.

The defendants also argue that the application of harmless

error analysis in this circuit is “evolving.” We are not

persuaded on either point.

First, we agree with the Eighth and Ninth Circuits that an

error in sustaining a Batson challenge in a federal civil trial is

subject to harmless error analysis under Martinez

‐ Salazar and

Rivera

. See Avichail v. St. John’s Mercy Health System

, 686 F.3d

548, 552–53 (8th Cir. 2012); Alaska Rent

‐ A

‐ Car, Inc. v. Avis

Budget Group, Inc.

, 709 F.3d 872, 880 (9th Cir. 2013). In federal

civil cases, peremptory challenges are provided by 28 U.S.C.

§1870, which provides each side in a civil case three

peremptory challenges. (Federal Rule of Civil Procedure 47(b)

instructs courts to comply with §1870.) The fact that

peremptory challenges in civil cases are based on a statute does

not distinguish them from the right to peremptory challenges8 No. 12

‐ 2779

in the criminal context, which are granted by Federal Rule of

Criminal Procedure 24(b). See Martinez

‐ Salazar

, 528 U.S. at 311

(“[U]nlike the right to an impartial jury guaranteed by the

Sixth Amendment, peremptory challenges are not of federal

constitutional dimension.”). There is no constitutional right to

a peremptory challenge. Rather, peremptory challenges are one

time

‐ honored means to protect the constitutional right to an

impartial jury. Martinez

‐ Salazar and Rivera cannot be

distinguished based on the legal source of the right to exercise

peremptory challenges, and a possible error in administering

peremptory challenges that did not deny an impartial jury

does not warrant a new trial. 2

Second, defendants argue that our circuit’s case law is

“evolving” on the issue of errors in handling peremptory

challenges. The defendants rely on United States v. Patterson

,

215 F.3d 776 (7th Cir. 2000), vacated in part on other grounds,

Patterson v. United States, 531 U.S. 1033 (2000), and United

States v. Harbin

, 250 F.3d 532 (7th Cir. 2001). Patterson dealt

2 The defendants also try to distinguish Martinez

‐ Salazar and Rivera on a

different basis. They argue that the defendants in Martinez

‐ Salazar and

Rivera “did not lose the use of a peremptory; each used every allotted

challenge to remove a juror.” Reply Br. at 22. We are not persuaded. Rivera

struck a juror, the court erroneously denied his Batson challenge, and the

juror sat on Rivera’s jury. Rivera

, 556 U.S. at 152. Effectively, Rivera lost his

strike. Martinez

‐ Salazar had to use a peremptory challenge to strike a juror

who should have been struck for cause, also effecting what could be

deemed a forfeiture of that peremptory challenge. Martinez

‐ Salazar

, 528 U.S.

at 309. We need not decide here the extent of a district court’s discretion to

deny the culprit a replacement peremptory challenge after sustaining a

Batson challenge. See generally, e.g.

, United States v. Walker

, 490 F.3d 1282,

1294–95 (11th Cir. 2007).No. 12

‐ 2779 9

with the loss of a peremptory challenge due to a

misunderstanding about which jurors would be designated as

alternates. But the impartiality of the jury that was eventually

seated was not called into question, “which makes it hard to

see why there is any real problem.” 215 F.3d at 779. We applied

harmless error review and rejected the defendants’ claim that

they lost substantial rights. Id. at 781–82. Because the jury that

was seated was impartial, the defendants had not been harmed

and a new trial was not warranted. At the same time, though,

we left open the possibility that “an exceptionally confused

jury

‐ selection process” might affect a substantial right. Id

. at

782.

The next year, Harbin presented just such an “exceptionally

confused” scenario. In the middle of a trial, a district judge

permitted the prosecution to exercise a left

‐ over peremptory

challenge. We reversed, holding that “the error was serious

enough to effect a shift in the total balance of advantages in

favor of the prosecution.” Harbin

, 250 F.3d at 547. We found it

was unfair to allow one party “unilateral, discretionary control

over the composition of the jury mid

‐ trial.” Id

. at 547.

Patterson and Harbin offer no help for the defendants here.

The jury selection process employed in this trial was straight

‐

forward and did not offer either side a strategic advantage.

Without a showing that a biased juror was seated, any error in

the jury selection process in the Jimenez trial could have been

an error only in “a technical sense.” Harbin

, 250 F.3d at 549.

The defendants have not attempted to show that a biased

juror sat on their jury or the sort of harm presented in Harbin

. Without such a showing, we must presume that they received10 No. 12

‐ 2779

a fair trial. Defendants are not entitled to a new trial based on

district court’s handling of the Batson challenge.

III. Jury Instruction on the Brady Claim

In Brady v. Maryland

, 373 U.S. 83 (1963), and Giglio v. United

States

, 405 U.S. 150 (1972), the Supreme Court held that the

accused in a criminal case has a due process right to have the

prosecution disclose material exculpatory evidence, including

evidence that impeaches the credibility of prosecution

witnesses. Jimenez’s core claim in this case is that Detective

Bogucki deliberately violated his rights under Brady and its

progeny by concealing exculpatory evidence.

The defendants argue that the district court erred by

refusing to give an instruction that would have limited the

jury’s consideration of Jimenez’s due process Brady claim to

five pieces of evidence. Although this argument is framed

primarily as a challenge to the jury instructions, the defendants

also contend that in closing arguments, Jimenez asserted that

ten Brady violations had occurred in the course of the Morro

murder investigation. Defendants say they had no prior notice

of six of them. Neither argument warrants a new trial.

Where the jury instructions provided by the trial court were

an accurate statement of the law, our “review of jury

instructions is limited.” Knox v. State of Indiana

, 93 F.3d 1327,

1332 (7th Cir. 1996). If the instructions were deficient, we ask

whether the jury was confused or misled by the instructions.

Gile v. United Airlines, Inc.

, 213 F.3d 365, 374–75 (7th Cir. 2000).

Even if we believe that the jury was confused or misled, we

would need to find that the defendants were prejudiced before

ordering a new trial. Id .; see also Boyd v. Illinois State Police

,No. 12

‐ 2779 11

384 F.3d 888, 894 (7th Cir. 2004) (standard of review is “a

liberal one: we look at jury instructions only to determine if

taken as a whole they were sufficient correctly to inform the

jury of the applicable law. Even if the instruction contains

errors or misguides the jury, the error is reversible only if a

litigant is prejudiced.”) (quotation omitted).

The defendants do not argue that the due process

instruction given by the district court was an incorrect

statement of the law. 3 They argue that it was too broad

3 The district court provided the jury with the following instruction on

Jimenez’s due process Brady claim:

The plaintiff’s first claim is that the defendant violated his constitu

‐

tional right to due process of law.

To succeed on this claim, the plaintiff must prove both of the

following things by a preponderance of the evidence:

1. The defendant concealed material exculpatory and/or

impeachment evidence from prosecutors.

2. As a result, the plaintiff was damaged.

A law enforcement officer is obligated to turn over to the prosecu

‐

tors handling the case material exculpatory and impeachment

evidence that is not otherwise available through the exercise of due

diligence. Exculpatory or impeachment evidence is not considered

to have been concealed if it was disclosed in time for the defendant

in the criminal case to make use of it at his criminal trial.

“Exculpatory” evidence is evidence that would tend to show that

the accused person is not guilty of the crime charged.

(continued...)12 No. 12

‐ 2779

because, without the defendants’ proposed limiting

instruction, the jury was permitted to consider potential Brady

violations that had not been raised by the parties at the

summary judgment stage of the case. 4

We find no error. Nothing prevented the jury from deciding

the case on evidence that had not been used to support or

oppose an earlier summary judgment motion. “Once the case

proceeds to trial, the full record developed in court supersedes

the record existing at the time of the summary judgment

motion.” Ortiz v. Jordan

, — U.S.

—, —, 131 S. Ct. 884, 890

(2011); Chemetall GmbH v. ZR Energy, Inc.

, 320 F.3d 714, 718 (7th

Cir. 2003) (“Once the trial has taken place, our focus is on the

3 (...continued)

“Impeachment” evidence is evidence that would undermine the

credibility of a prosecution witness who testifies at the criminal

trial.

Exculpatory and impeachment evidence is “material” if it has a

reasonable likelihood of affecting the outcome of the criminal case.

Dkt. 287 at 12.

4 The defendants contend that only the following “categories” of evidence

were considered by the district court at summary judgment: (1) that

Bogucki failed to disclose that he coerced Larry Tueffel to identify Jimenez;

(2) that Phil Torres “never told police he saw Jimenez shoot [Morro];” (3)

that Tina Elder saw Jimenez’s photo before identifying him in the line

‐ up;

(4) that police induced witnesses to give false testimony that the shooter

was wearing a Duke jacket; and (5) that police possessed certain physical

evidence, including a handwritten note, a photo of Jimenez, and an

evidence inventory list. Def. Br. at 71. The district court granted summary

judgment for the defendants on the last of these theories.No. 12

‐ 2779 13

evidence actually admitted and not on the earlier summary

judgment record.”). So long as the evidence supporting these

theories was properly admitted, nothing warranted a jury

instruction that would have prevented the jury from

considering that evidence in resolving Jimenez’s due process

claim. We find no error in the district court’s denial of the

defendants’ proposed limiting instruction.

In the alternative, the defendants argue that if the district

court’s refusal to give a limiting instruction was not error, they

were not given appropriate notice of several Brady theories that

Jimenez raised for the first time in closing argument. 5 The

defendants did not object to these “new” theories at trial,

however, and we see no error in any event. Contrary to the

defendants’ contention, these Brady theories were not

stand

‐ alone due process claims, and they certainly did not

require Jimenez to amend his complaint in the middle of trial

to add such factual detail to the pleadings. Defendants have

not shown that they were unfairly blindsided or that Jimenez’s

trial evidence contradicted his discovery responses. Since the

supposedly new arguments were based on properly admitted

evidence, Jimenez’s counsel was entitled to argue the effect of

the evidence in closing.

5 These theories included: (1) the involvement of Morro’s friend in the

investigation; (2) that Bogucki did not record the contemporaneous version

of events when he stopped taking notes of his interview with Tina Elder; (3)

that Bogucki’s notes of his interviews with Phillip Torres were of two

separate interviews; (4) the anonymous phone call that identified Victor

Romo; (5) the omission of times and dates in Bogucki’s general progress

reports; and (6) that Jimenez’s Duke jacket was not tested and then

“disappeared.” Def. Br. at 72–73.14 No. 12

‐ 2779

IV. The Criminal Trial Transcripts

The defendants argue next that they are entitled to

judgment as a matter of law on Jimenez’s Brady claims because

he did not put into evidence the entire transcripts of his

original criminal trials. Without the transcripts, defendants

argue, the trial evidence was not sufficient to support the jury’s

verdict and the verdict should be reversed. We reject this

argument based on both waiver and the merits.

First, the defendants never raised this issue before the

district court, either at trial or in their post

‐ trial Rule 50 motion

for judgment as a matter of law. The issue therefore may not be

used to reverse the judgment on appeal. See Ortiz v. Jordan

, —

U.S. at —, 131 S. Ct. at 892 (absent Rule 50 motion, appellate

court was “powerless” to review sufficiency of trial evidence),

quoting Unitherm Food Sys., Inc. v. Swift

‐ Eckrich, Inc.

, 546 U.S.

394, 404–05 (2006) (finding forfeiture of a claim on appeal that

was not presented in either the Rule 50(a) or Rule 50(b)

motion). Whether the trial evidence was sufficient to support

the jury’s verdict without the full criminal trial transcripts is a

matter that had to be raised before the trial court in the first

instance. 6

Second, even if we could review the argument de novo

, it

would still fail on the merits. The defendants argue that

Jimenez was required to put the entire transcripts of his two

6 In response to Jimenez’s waiver argument, the defendants state: “Nor do

we challenge the sufficiency of the evidence such as would require a

predicate motion under Fed. R. Civ. P. 50.” Reply Br. at 44 n.18. This

perfunctory assertion in a footnote in a reply brief is unexplained and is not

consistent with the defense argument on the merits.No. 12

‐ 2779 15

criminal trials before the jury. The defendants do not specify

whether this burden would have required Jimenez to force the

jury to listen to a reading of all 1,370 pages or to use some

other procedure. The absence of specificity is telling.

The defendants base this argument on language in United

States v. Agurs :

The proper standard of materiality [of an alleged

Brady omission] must reflect our overriding concern

with the justice of the finding of guilt. Such a finding

is permissible only if supported by evidence

establishing guilt beyond a reasonable doubt. It

necessarily follows that if the omitted evidence

creates a reasonable doubt that did not otherwise

exist, constitutional error has been committed. This

means that the omission must be evaluated in the context

of the entire record.

427 U.S. 97, 112 (1976) (emphasis added); Def. Br. at 80, also

citing Woolley v. Rednour

, 702 F.3d 411, 426 (7th Cir. 2012)

(evaluating post

‐ conviction claim of prejudicial ineffective

assistance of counsel under Agurs materiality standard).

Agurs shows that the materiality of Brady evidence depends

on its context within the criminal investigation. But Agurs did

not establish a rule that the plaintiff in a civil case alleging a

Brady violation must force

‐ feed the jury the original criminal

trial in its entirety. The criminal transcripts were relevant but

not necessary evidence of Jimenez’s due process Brady claim so

long as he met his burden by other means. The district court

did not err by denying the defendants’ post

‐ trial motion for

judgment as a matter of law on Jimenez’s Brady claims.16 No. 12

‐ 2779

V. Expert Testimony

Finally, we address the defendants’ contention that the

district court erred by permitting Jimenez to offer the

testimony of Gregg McCrary, an expert on police practices.

McCrary testified in some detail about reasonable practices for

police investigations and how the investigation of the murder

of Eric Morro departed from those practices, depending in

large part on how the jury resolved conflicting evidence about

the investigation. McCrary’s testimony tended to show that the

errors in defendants’ handling of the investigation were so

severe and numerous as to support an inference of deliberate

wrongdoing in violation of the Constitution.

Defendants contend that McCrary’s testimony regarding

reasonable police investigatory practices amounted to legal

conclusions that were not admissible under Federal Rule of

Evidence 702. They also argue that McCrary’s testimony

impermissibly opined on the credibility of other witnesses. We

find no reversible error.

A. Forfeiture

Jimenez responds that the defendants have forfeited these

arguments because they did not object to McCrary’s testimony

on either of these grounds at trial. “If the district court admits

the contested evidence, the opponent must make a timely

objection or motion to strike, ‘stating the specific ground of

objection, if the specific ground was not apparent from the

context[.]’” Germano v. Int’l Profit Ass’n, Inc.

, 544 F.3d 798, 801

(7th Cir. 2008), quoting prior language in Fed. R. Evid.

103(a)(1). The defendants counter that their Rule 702 objection

was preserved by a pre

‐ trial motion in limine and that once theNo. 12

‐ 2779 17

judge ruled on their motion, any further objection would have

been an unnecessary exception to the judge’s ruling. See Fed.

R. Civ. P. 46. We conclude that the defendants failed to

preserve the arguments they are now making on appeal

regarding McCrary’s testimony.

The defendants argued in their motion in limine that

McCrary’s testimony would be improper because the jury

would be able to determine for itself the steps and procedures

involved in a “reasonable and prudent” police investigation,

and McCrary’s testimony on those issues would not be based

on specialized knowledge and thus would not assist the jury.

Dkt. 206 at 5–6 (quoting McCrary’s proposed testimony). That

argument was very different from the arguments that

defendants make on appeal. In this court the defendants argue

that McCrary should not have been permitted to testify

regarding reasonable police practices because

“reasonableness” is a legal conclusion, and experts should not

provide legal opinions. Def. Br. at 58–62. The different

arguments in the motion in limine were not sufficient to

preserve the new argument.

Nor were the arguments in the motion sufficient to

preserve the argument on appeal that McCrary should have

been prevented from testifying regarding the credibility of the

other witnesses. In their motion in limine

, the defendants

argued that McCrary should not be permitted to testify

because his opinions hinged on his evaluation of the credibility

of the witnesses to the Morro murder. Dkt. 206 at 3–5. That

argument was different from the argument the defendants

raise on appeal—that McCrary testified regarding the

credibility of the witnesses’ trial testimony. Def. Br. at 6418 No. 12

‐ 2779

(McCrary’s testimony “directly touched upon a matter firmly

beyond any expert’s competence: the credibility of several key

trial witnesses.”). This appellate argument also was not

preserved by the motion in limine

.

Because the defendants failed to object to McCrary’s

testimony on either of these bases at trial, we must consider

whether there was a “plain error” under Federal Rule of

Evidence 103(e). We have explained: “Plain error review of a

forfeited evidentiary issue in a civil case is available only under

extraordinary circumstances when the party seeking review

can demonstrate that: (1) exceptional circumstances exist; (2)

substantial rights are affected; and (3) a miscarriage of justice

will occur if plain error review is not applied.” Estate of

Moreland v. Dieter

, 395 F.3d 747, 756 (7th Cir. 2005), citing

Stringel v. Methodist Hosp. of Ind., Inc.

, 89 F.3d 415, 421 (7th Cir.

1996).

The defendants have not cleared this high bar. The

defendants argue at length that McCrary’s disputed testimony

affected their substantial rights. Def. Br. at 62–70. But the bulk

of their argument depends on comparing McCrary’s “lengthy

and purposeful” testimony with the “weaknesses” of Jimenez’s

claims—in other words, re

‐ weighing the evidence while

drawing all inferences in the defendants’ favor. We may not do

so. Moreover, the defendants have not addressed the other two

elements needed for plain error review—exceptional

circumstances and a miscarriage of justice. The defendants’

arguments concerning their substantial rights will not rescue

them from forfeiture without such a showing.No. 12

‐ 2779 19

B. The Merits of Defendants’ Challenges

Even if defendants had not forfeited these objections,

though, defendants’ arguments against McCrary’s testimony

fail on the merits. When an objection is made properly, a

district court’s decision admitting evidence is reviewed for an

abuse of discretion. Griffin v. Foley

, 542 F.3d 209, 217 (7th Cir.

2008).

1. Testimony Regarding “Reasonableness”

Federal Rule of Evidence 702(a) permits a witness qualified

as an expert to testify regarding his or her opinion if “the

expert’s scientific, technical, or other specialized knowledge

will help the trier of fact to understand the evidence or to

determine a fact in issue.” It is the role of the judge, not an

expert witness, to instruct the jury on the applicable principles

of law, and it is the role of the jury to apply those principles of

law to the facts in evidence. As a general rule, accordingly, an

expert may not offer legal opinions. 7

7 There are some exceptions to this general rule, including some issues of

legal malpractice and patent law. See, e.g.

, American Int’l Adjustment Co. v.

Galvin

, 86 F.3d 1455, 1461 (7th Cir. 1996) (in legal malpractice case under

Indiana law, expert testimony is normally required to show standard of

care); Markman v. Westview Instruments, Inc.

, 52 F.3d 967, 983 (Fed. Cir. 1995)

(court had discretion to adopt, take guidance from, ignore, or reject expert

legal opinions regarding patent construction), aff’d, 517 U.S. 370 (1996);

Applegate v. United States

, 35 Fed. Cl. 406, 424–25 (Fed. Cl. 1996) (expert

testimony reaching legal conclusions may be admissible where the

testimony concerns state law or a technical provision peculiar to industry)

(internal quotation omitted); Barth v. Reagan

, 564 N.E.2d 1196, 1199–1200 (Ill.

1990) (in legal malpractice case under Illinois law, standard of care

(continued...)20 No. 12

‐ 2779

The defendants argue that McCrary’s testimony regarding

reasonable police practices was intertwined with probable

cause, a legal standard, and thus McCrary should not have

been permitted to testify on the subject. We disagree. McCrary

did not offer any opinion at trial as to probable cause at any

stage of the investigation of Morro’s murder or the prosecution

of Jiminez. He testified only about reasonable investigative

procedures and ways in which evidence from other witnesses

did or did not indicate departures from those reasonable

procedures.

We recognize that McCrary’s opinions had direct

implications for applying legal standards such as probable

cause and, even more to the point, whether Bogucki

deliberately failed to comply with his obligations under Brady

v. Maryland and the Due Process Clause of the Fourteenth

Amendment. That’s why his testimony was relevant. 8

When an expert offers an opinion relevant to applying a

legal standard such as probable cause, the expert’s role is

“limited to describing sound professional standards and

identifying departures from them.” West v. Waymire

, 114 F.3d

646, 652 (7th Cir. 1997); see also Abdullahi v. City of Madison

,

423 F.3d 763, 772 (7th Cir. 2005) (commenting that expert’s

7 (...continued)

ordinarily must be established through expert testimony).

8 Plaintiff tried this case on the theory that Bogucki acted deliberately to

violate his constitutional rights. The case therefore does not present any

question about reckless conduct. See generally Slade v. Board of School Dirs.

of City of Milwaukee

, 702 F.3d 1027, 1029–30 (7th Cir. 2012); Archie v. City of

Racine

, 847 F.2d 1211, 1219–20 (7th Cir. 1988) (en banc).No. 12

‐ 2779 21

testimony could be relevant to jury in determining whether

officers deviated from reasonable police practices). That’s

exactly what McCrary did here. The district court drew the line

properly so that McCrary’s testimony did not stray into

impermissible territory.

In constitutional tort cases, expert testimony regarding

sound professional standards governing a defendant’s actions

can be relevant and helpful. Liability for constitutional torts is

more limited in scope than common law tort liability.

Negligence is not sufficient. Daniels v. Williams

, 474 U.S. 327

(1986). Expert testimony regarding relevant professional

standards can give a jury a baseline to help evaluate whether

a defendant’s deviations from those standards were merely

negligent or were so severe or persistent as to support an

inference of intentional or reckless conduct that violated a

plaintiff’s constitutional rights. See, e.g.

, Norfleet v. Webster

,

439 F.3d 392, 396 (7th Cir. 2006) (“To infer deliberate

indifference on the basis of a physician’s treatment decision,

the decision must be so far afield of accepted professional

standards as to raise the inference that it was not actually

based on a medical judgment.”), citing Estate of Cole v. Fromm

,

94 F.3d 254, 262 (7th Cir. 1996); Collignon v. Milwaukee County

,

163 F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show that the

professional disregarded the need only if the professional’s

subjective response was so inadequate that it demonstrated an

absence of professional judgment, that is, that no minimally

competent professional would have so responded under those

circumstances.”). These cited cases dealt with medical

treatment, but the same principle extends to police

investigations.22 No. 12

‐ 2779

McCrary testified about the steps a reasonable police

investigator would have taken to solve the Morro murder, as

well as the information that a reasonable police investigator

would have taken into account as the investigation progressed.

He did not try to resolve conflicts in the testimony of different

witnesses. He also did not offer an opinion regarding whether

the police had probable cause to arrest Jimenez. He did point

out ways in which evidence from other witnesses indicated

that Bogucki and his police colleagues departed from

reasonable investigation methods. The effect of his testimony

depended on how the jury resolved conflicts among the

testimony of other witnesses. We must assume the jury

resolved those conflicts in favor of plaintiff Jimenez, of course.

McCrary’s testimony thus would have helped the jury

conclude that the departures from reasonable police practices

were so important, severe, and numerous that they supported

an inference that Bogucki acted deliberately to violate

Jimenez’s rights. Such use of McCrary’s testimony would not

transform it into an impermissible legal opinion. Thus, even if

defendants had not forfeited their objections, we would find no

error in admitting McCrary’s testimony, much less plain error

or an abuse of discretion.

2. Testimony Regarding Credibility

The defendants also contend that McCrary impermissibly

testified regarding the credibility of the other trial witnesses.

The defendants also forfeited this argument, as noted, but it

too would fail on the merits. Whether expert testimony

regarding witness perception, memory, reliability, and

deception could assist a properly

‐ instructed jury in its task of

evaluating trial testimony is controversial. Compare, e.g.

,No. 12

‐ 2779 23

United States v. Hall

, 165 F.3d 1095, 1107 (7th Cir. 1999) (“the

credibility of eyewitness testimony is generally not an

appropriate subject matter for expert testimony because it

influences a critical function of the jury—determining the

credibility of witnesses.”), with Hall

, 165 F.3d at 1118

(Easterbrook, J., concurring in judgment) (“Jurors who think

they understand how memory works may be mistaken, and if

these mistakes influence their evaluation of testimony then

they may convict innocent persons.

... That a subject is within

daily experience does not mean that jurors know it correctly .”)

(emphasis in original). As important as this controversy is, we

need not address it here because McCrary simply did not

testify regarding the credibility of other trial witnesses.

McCrary offered a few observations on credibility, but they

were limited to proper discussions of the evidence that

Bogucki received in the investigation. First, McCrary noted

that one witness had given Bogucki two inconsistent versions

of the events at two different times in the investigation. He

explained that a reasonable officer would have realized that

both of her stories “can’t be true” and would have tried to

resolve the conflicts. That point is hard to dispute and certainly

did not invade the province of the jury.

McCrary also testified that a reasonable officer would have

taken very seriously Victor Romo’s statement that he was

present when Morro was shot and that the shooter was Juan

Carlos Torres, not Jimenez. McCrary explained that Romo’s

statement amounted to a voluntary confession that he was

present at the scene of the murder with the person he said was

the shooter, which would make Romo himself at least a suspect

in the murder, at the very least as an accomplice. See Tr.24 No. 12

‐ 2779

1627–28, 1630, 1635. McCrary did not testify that Romo had

been telling the truth, but he explained that Romo’s statement

had strong indications of credibility so that a reasonable police

investigator would have taken it seriously—it was a voluntary

statement against Romo’s own interests, for it implicated him

in a very serious crime. We see nothing improper about that

testimony. See Nunez v. BNSF Railway Co.

, No.12

‐ 3018,

— F.3d

—, —, 2013 WL 4829259, at *3 (7th Cir. Sept. 11, 2013) (expert

could not testify as to whether another witness was telling the

truth, but could testify about implications if he was).

McCrary did not tell the jury whether to believe what any

witnesses had said during the civil trial. He told the jury what

a reasonable police investigator should have done when

presented with these conflicting and/or inculpatory statements

during the murder investigation. This was within the bounds

of proper testimony for a police practices expert. Thus, even if

the argument had not been forfeited, we would find no error,

let alone a plain error or an abuse of discretion.

We find no reversible error, so the judgment of the district

court is A FFIRMED

.