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. e du/thir dc ir c uit_1996/138UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

NO. 95-3252

_______________

FRANCES E. LIVINGSTONE and JOSEPH A. LIVINGSTONE, her husband,

Appellants

v.

NORTH BELLE VERNON BOROUGH; FAYETTE CITY BOROUGH; WASHINGTON TOWNSHIP; FRANK E. MONACK, JR., individually and in his capacity as officer of WASHINGTON TOWNSHIP; OFFICER RAYMOND MOO DY, individually and in his capacity as officer for FAYETTE CITY BOR OUGH; OFFICER DARHL SNYDER, individually and in his capacity as a n officer for

NORTH BELLE VERNON BOROUGH

_______________

On Appeal from the United States District Court for the Western District of Pennsylvan ia

D.C. No. 91-00059

_______________

Argued January 25, 1996

Before: COWEN and SAROKIN, Circuit Judg es and POLLAK, District Judge

(Filed July 31, 1996)

Peter M. Suwak (argued) Post Office Box #1 Washington, PA 15301 Attorney for Appellants

Thomas P. McGinnis Dara A. DeCourcy (argued) Zimmer Kunz, P.C.

3300 USX Tower Pittsburgh, PA 15219

John W. Jordan, IV Gaca, Matis & Hamilton Four PPG Place, Suite 300 Pittsburgh, PA 15222Attorneys for Borough of

North Belle Vernon and Darhl Snyder

Simon B. John

John & John

96 East Main Street Uniontown, PA 15401 Attorney for Borough of Fayette City and Raymond Moody

Albert C. Gaudio

513 Schoonmaker Avenue Monessen, PA 15062 Attorney for Washington Township

Timothy M. Maatta

513 Schoonmaker Avenue Monessen, PA 15062 Attorney for Frank E. Monack, Jr.

______________

OPINION OF THE COURT

_______________ POLLAK, District Judge.

This is the second time that this matter has c ome before this

court. Appellants Frances and Joseph Livingstone comm enced this civil rights suit, pursuant to 42 U.S.C.  1983, in January, 1991 against defendants North Belle Vernon Borough, Fayette City Borough, Washington Township, Officer Darhl Snyder, Officer Raymond Moody,

and Officer Frank E. Monack. The defendants moved for summary judgment, asserting that the Livingstones' claims w ere barred by an agreement said to have been made in 1990 in which t he Livingstones waived any civil claims in exchange for the termina tion of a criminal prosecution of Frances Livingstone. (Agre ements like this one, in which a criminal defendant waives potential civil claims in exchange for the dismissal of the case against her, are called "release-dismissal agreements.") The district court granted summary judgment in favor of the defendants. In Livingstone v. North Belle Vernon B orough, 12 F.3d 1205 (3d Cir. 1993) (in banc) ("Livingstone I"), th is court reversed, finding that there was a genuine issue of material fact as to whether the Livingstones had concluded the re lease-dismissal agreement voluntarily. 12 F.3d at 1214. In that o pinion, we also observed that the agreement raised a number of othe r possible legal questions, including whether its enforcement would be in the public interest and whether it was invalidated by the muni cipalities' failure to formally ratify it. On remand, the district court granted partial summary judgment in favor of the defendants as to the latter two que stions, finding that the agreement's enforcement would be in the pu blic interestand that no formal ratification was necessary. The district court

then conducted a jury trial devoted to the single q uestion whether the Livingstones had concluded the release-dismissa l agreement voluntarily. The jury found that the Livingstones did indeed voluntarily conclude the release-dismissal agreemen t. Accordingly, the district court ordered that judgment be entered in favor of the defendants and against the Livingstones as to all o f the Livingstones' claims. This appeal followed.

I. Factual Background and Procedural History A. Livingstone I. In Livingstone I, we compendiously summarized this case's elaborate factual and procedural history. It seems efficient to reproduce that summary here verbatim. (Except as n oted, all footnotes and all emendations are from Livingstone I.)

This civil suit filed by Frances and Jose ph Livingstone against the police officers and municipalities arose from the conduct of the police officers on the night of January 12-13, 1989, at the Livingstone home in Washington To wnship, Pennsylvania. During a family argument betwee n Carrie Livingstone, age twenty-two, who was unmarried and living at her parents' home with her fourteen-month-old son, and Joseph, her father, Mr. Livingstone struck Carrie on t he face, causing her lip to split and bleed. Carrie ran out of the house and to the community ambulance service across the street, where an employee called the police. When Officer Fran k Monack arrived, Carrie told him that her father had s truck her and that her parents were holding her son without her consent.

Monack, who was at that time an officer i n the Washington Township Police Department and is now Chief of Police, radioed for assistance pursuant to an intermunicipal p olice cooperation agreement. Raymond Moody, who was and is the Chief of Police for the Borough of Fayette Cit y, and Darhl Snyder, an officer in the North Belle Vernon P olice Department, responded. They proceeded to the Livingstone home where Mr. Livingstone permitted them to enter for the purpose, he later testified, of discussing pos sible criminal charges against him arising out of the inciden t. Following a brief discussion, Monack and Snyder accompanie d Mr. Livingstone outside, and Monack told him to go to the nearby police station to make a statement. No charge s were filed against Mr. Livingstone that evening or at any later time.

Monack and Snyder then reentered the Livi ngstone household, this time in search of Carrie's son and admittedly without a warrant or court order. Mrs. Living stone had retreated to the back bedroom with her grandso n, and had

locked and barricaded the door. When she refu sed to open the door, Monack picked the lock and then tried to push the door open. From the partially opened door, Mrs. Li vingstone hit him with a fishing rod and scratched him. Mon ack and Snyder broke the door down to enter the room, and the n Monack toldMrs. Livingstone she was under arrest.

Mrs. Livingstone testified that both men struck her, causing her to lose consciousness and sustain bruises, lacerations, lost teeth, and head injuries. A ccording to defendants, they used force only for the purpo se of getting handcuffs on her after she struck the officer, and a stun gun to subdue her because she was screaming and ki cking. Snyder held her down while Monack used the gun. Mrs. Livingstone claims that Monack then said "you want a thril l, I'll give you a thrill" and applied the stun gun between her legs. A medical examination conducted at the hospital that night notes

a burn in the vulval area.

The officers removed Mrs. Livingstone, ha ndcuffed, from the house. She states that they dragged her o utside and dropped her several times, banging her head, a nd then left her lying in cold muddy water for hours. The offi cers claim that her thrashing caused them all to fall, and tha t she refused to get up.

On January 13, 1989, the morning after th e altercation, Mrs. Livingstone was charged by Monack, on beh alf of the Washington Township Police Department, with di sorderly conduct, aggravated assault, terroristic threa ts, resisting arrest, and interference with custody. At a p reliminary hearing on April 18, 1989, Mrs. Livingstone wa s held over for a jury trial on all but the terroristic threat s charge, and the aggravated assault charge was reduced to s imple assault.

The trial in Fayette County Court of Common Pleas began on February 13, 1990, with attorney Thomas R. Ceraso representing Frances Livingstone and Jack R. H eneks, Jr., an Assistant District Attorney, representing the Commonwealth of Pennsylvania. Carrie Livingstone testified fo r the prosecution, followed by Monack, Snyder, Moody , Police Chief Robert Matthews of Washington Township, and Ev elyn Rehe of the community ambulance service. The Commonwealth rested, and Mrs. Livingstone demurred to all of the charge s. The demurrer was granted on the charge of interference with custody on the ground that there were no facts showing danger to the child, but was denied as to the other charges.

Thereafter, Joseph Livingstone and his so n, James, testified for the defense. Before Mrs. Living stone was to take the stand (and presumably would have test ified about her claims with regard to police use of a stun gun on her private parts), the trial judge, Judge Cicchetti of th e Court of Common Pleas, met with Heneks and Ceraso to di scuss whether

the matter could be resolved. After settlemen t negotiations, a conference was held in camera with Judge Cic chetti. Present were Moody, Monack, Matthews (now deceased), t he Livingstones, Ceraso, and Heneks.Ceraso summarized the arrangement by stat ing that the

defense would move for a judgment of acquittal after James Livingstone finished his testimony; that expen ses for the physical damage to the Livingstone house and f or Mrs. Livingstone's reasonable medical care would be paid; and that once those bills were paid, the Livingstones w ould release any

civil claims. Ceraso stated on the record:

there will be an agreement on the part of my client, Mrs. Livingston[e], and also her husband, Joe Livingston[e], who is present, that upon payment of reas onable medical bills that w[e]re associated with the inc ident that occurred, based on my forwarding those to Washington Township with confirmation, together with bills reflecting damage incurred at the househo ld of Mr. and Mrs. Livingston[e], that Washington Towns hip will cause the same to be paid. At the time of fina l payment of those bills, there will be a full and complete release signed with reference to any civil action on the part of Mr. and Mrs. Livingston[e]. It's also my understanding

that at that time there will also be a re lease signed by Washington Township, or any of its proper officials, or any member of the police force necessary to release Mr. and Mrs. Livingston[e] from any liability

. . . .

App. at 1109.

In response to the judge's inquiry, the p arties voiced an expression of assent. The court asked whether "you all think this is in the best interest for everyone" and Matthews, Monack, and Heneks said they did. App. at 111 2. When they returned to the courtroom, Ceraso moved for a judgment of acquittal on the criminal charges against Mrs. Livingstone, which the court granted.

It is undisputed that the settlement agre ement was never reduced to writing. The Livingstones never su bmitted for payment any medical bills or household repair bills, and no payments have been made. The Board of Supervi sors of Washington Township took no action to official ly ratify the agreement until almost two years after the con ference in chambers, and only then after this suit was st arted. There is no evidence that the other two municipal de fendants, North Belle Vernon Borough and Fayette City Borough, have ever taken any action to ratify any putative settlement.

On January 14, 1991, almost a year after the criminal trial, the Livingstones filed this action agai nst the police officers and the three employer municipalities . The complaint

consisted of seven claims: a federal claim fi led pursuant to

42 U.S.C.  1983 (1988), and state law claims alleging assault and battery, malicious prosecution, malicious abuse of process, invasion of privacy, intentional infl iction of emotional distress, and conversion.The defendants filed motions to dismiss o r, in the

alternative, for summary judgment. The distr ict court referred the case to a magistrate judge, who o rdered the parties to engage in discovery [footnote omitt ed] and to submit briefs and materials in support of the motions.

In their briefs in support of summary jud gment, defendants argued that the suit was barred by the release-dismissal agreement reached during the in cameraconference before Judge Cicchetti. The Livingstones claimed that they never intended to waive their rights to sue, pointing out that the agreement was never redu ced to writing and that Washington Township never made the co ntemplated payments. They also contended that the agreem ent was never properly entered into by the municipalities, a s the Washington Township Board of Supervisors never formally a pproved it and the other boroughs' governing bodies never con sidered it, and that the agreement was invalid and unenforceab le under Pennsylvania law.

On April 8, 1992, the magistrate judge su bmitted a Report and Recommendation recommending that summary j udgment be granted for the defendants on the basis of the release- dismissal agreement. Although the court ackno wledged that Washington Township may not have formally appr oved the agreement, it noted that two supervisors, a qu orum, had approved it, thereby satisfying Pennsylvania l aw. Without comment on the absence of the other municipali ties and officers from the agreement, the magistrate ju dge concluded that plaintiffs had contracted with all of the defendants, and thus the plaintiffs' civil suit was barred; t hat the agreement comported with due process because t he plaintiffs understood that they were waiving their rights to assert
future civil claims and had entered into the r elease voluntarily; and that there was sufficient con sideration because the plaintiffs, in exchange for the su rrender of their potential civil claims, had secured the dismis sal of the criminal charges and a promise by the defendan ts not to sue

them.

Objections were filed but the district co urt adopted the magistrate judge's opinion as its own and gran ted summary judgment for all defendants. This timely appe al followed.

Livingstone I, 12 F.3d at 1206-09. With this background history as predicate, the court in Livingstone I then proceeded to review the elements of proof for a showing of voluntariness, finding that the parties seeking to enforce the release-dismissal agreement bore the bu rden of showing that the Livingstones' assent was "voluntary, delib erate and

informed." 12 F.3d at 1211. We concluded that the defendants had not met this burden with the certainty called for o n summary judgment, given that Mrs. Livingstone was confused as to the termsof the release-dismissal arrangement, that the clai med releasedismissal agreement was never written down, and tha t the asserted agreement Ä assuming there was a meeting of the min ds Ä was made, if at all, during a brief and ambiguous oral colloq uy. See id. at 1211-14. Accordingly, we reversed the grant of summary judgment

and directed that the case be remanded for further proceedings.

B. Post-Livingstone I Proceedings Following remand, the defendants filed a motio n for summary judgment challenging the Livingstones' complaint on a variety of grounds other than the release-dismissal agreement. Their motions were referred to a magistrate judge, whose Report a nd Recommendation ("R&R") the district court then adop ted without

substantive comment. In accordance with the recomm endations of the magistrate judge, the district court ordered that ( 1) summary judgment be entered in favor of all defendants as t o the Livingstones' claims of malicious prosecution, abus e of process, and invasion of privacy; and (2) summary judgment b e entered in favor of Officer Moody as to the assault and batter y claims. The district court denied summary judgment as to the Li vingstones' constitutional claims, their claims of assault and battery against Officers Monack and Snyder, their claim of intentio nal infliction of emotional distress, and their conversion claim. App. at 326,

352. The Livingstones then filed a motion for parti al summary judgment renewing two arguments that they had alrea dy unsuccessfully made to the district court in the fi rst round of the litigation. These arguments were that the release- dismissal agreement was unenforceable because (a) the municip alities had not ratified it, as (assertedly) required by Pennsylvan ia law, and (b) the release-dismissal agreement had been concluded in a manner which violated "the Pennsylvania Rules of Criminal Procedure and public policy." App. at 355. The defendants respo nded with cross-motions for partial summary judgment that ass erted that no ratification was necessary, because the Livingstone s had failed to submit their medical bills to Washington Township f or payment. The district court granted summary judgment in favor of the defendants on both the ratification question and the public-in terest question. The district court then conducted a jury trial limited to one question, whether the Livingstones voluntarily ente red into the release-dismissal agreement. After several days of trial, including extended testimony by Thomas R. Ceraso (M rs. Livingstone's lawyer at her criminal trial), the ju ry found that the Livingstones did indeed enter into the agreemen t voluntarily. Accordingly, the district court entered judgment in favor of the defendants and against the Livingstones. The Livin gstones moved for a new trial, for judgment notwithstanding the v erdict, and to amend the court's judgment to require Washington To wnship to pay household damages and medical bills to the Livingst ones (apparently

in order to enforce the terms of the release-dismis sal agreement). These motions were denied, and this appeal followed

. On appeal, the Livingstones assert that the di strict court (1) erred in finding that the agreement was valid and e nforceable even though the municipalities had not ratified it; (2) erred in rulingthat the enforcement of the agreement was in the pu blic interest as

a matter of law; and (3) made a number of errors at the voluntariness proceeding. We will discuss these qu estions in that

order. As to the second and third of these arguments, the district court, appellants, and appellees all assume that id entical legal standards govern the enforcement of the release-dis missal agreement as to the Livingstones' section 1983 claims and as to their statelaw claims. However, as we suggested in Livingston e I, see 12 F.3d at 1209 n.6, this is not necessarily the case. Fed eral common law governs the enforceability of the release-dismissal agreement as to the Livingstones' section 1983 claims, while we mus t look to Pennsylvania law to assess the enforceability of th e agreement as to their state-law claims. Thus, the legal standar ds applicable to the Livingstones' state-law claims will be discusse d separately.

II. Jurisdiction and Standard of Review We have appellate jurisdiction pursuant to 28 U.S.C.  1291. As to the municipal ratification and public-interes t questions, on which the district court granted summary judgment, our review is plenary. See Erie Telecommunications Inc. v. City of Erie, 853 F.2d 1084, 1093 (3d Cir. 1988). The appellants als o assert that, at the voluntariness proceeding, the district court (1) gave an incorrect jury instruction, (2) erred in declining to give a requested jury instruction, and (3) made a number o f incorrect evidentiary rulings. To the extent that appellants claim that a jury instruction failed to state the proper legal s tandard, our review is plenary. See Government of Virgin Island s v. Isaac, 50 F.3d 1175, 1180 (3d Cir. 1995). To the extent that appellants contest the district court's refusal to give partic ular jury instructions, our review is for abuse of discretion . See id. The evidentiary rulings that the appellants challenge a re all discretionary rulings of the type that we review fo r abuse of discretion. This includes rulings as to the releva nce of evidence and as to its prejudicial effect, see In re Japanes e Electronic Products, 723 F.2d 238, 257, 260 (3d Cir. 1983), re v'd on other grounds, sub nom. Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), and as to waiver of the attorneyclient privilege, see United States v. Bilzerian, 9 26 F.2d 1285, 1293 (2d Cir. 1991).

III. Municipal Ratification The terms of the alleged release-dismissal agr eement, as recited by Ceraso, were that: there will be an agreement on the part of my client, Mrs. Livingston[e], and also her husband, Joe Livingston[e], who is present, that upon payment of reas onable medical bills that w[e]re associated with the inc ident that occurred, based on my forwarding those to Washington Township with confirmation, together with bills reflecting damage incurred at the househo ld of Mr. and Mrs. Livingston[e], that Washington Towns hip will cause the same to be paid. At the time of fina l payment of those bills, there will be a full and complete releasesigned with reference to any civil action on the part of

Mr. and Mrs. Livingston[e]. It's also my understanding

that at that time there will also be a re lease signed by Washington Township, or any of its proper officials, or any member of the police force necessary to release Mr. and Mrs. Livingston[e] from any liability

. . . .

Appellees North Belle Vernon Borough and Officer Da rhl Snyder's App. at 30. In short, the arrangement was apparent ly that, after the prosecution of Mrs. Livingstone was terminated, the Livingstones would submit bills for property damage and for medical costs to Washington Township. Once the Township pa id these bills, the Livingstones, the municipalities, and the polic e officers would then sign full mutual releases of civil claims. The Livingstones concede that they never submi tted their bills to Washington Township, as apparently required by t he terms of the agreement. The district court found that their fai lure to do so rendered it impossible for the municipal defendants to ratify the release-dismissal agreement, as "the public fisc ca nnot be allocated for an indefinite amount to a private par ty." App. at 377-78. The district court did not, however, discu ss an antecedent question: whether (and how) a contract was ever fo rmed between the Livingstones and the municipalities. Conceptually, it would hardly be possible for the Livingstones to have rendered i mpossible the performance of a contract that was never formed. Under Pennsylvania law, a township cannot ente r into a binding contract except by a vote of the township's supervi sors. SeeAbington Heights School District v. Township of South Abingt on, 456 A.2d 722, 724 (Pa. Cmwlth. 1983). North Belle Vern on Borough and Fayette City Borough never conducted such a vote, a nd Washington Township only did so after the present suit was fil ed. On appeal, the Livingstones assert that the failure of the mun icipalities to ratify the release-dismissal agreement meant that n o contract was ever formed between the Livingstones and the munici palities, and that the release-dismissal agreement is therefore u nenforceable. We will not address this question, however, be cause we find that it was not necessary for the municipalities to be parties to the release-dismissal agreement in order for it to be enforceable. It would suffice for the municipalities to have bee n third-party beneficiaries of an agreement concluded between the Livingstones and the Commonwealth of Pennsylvania; and, indeed, the colloquy before Judge Cicchetti suggests that this is what w as intended (assuming, of course, that a valid agreement was fo rmed at all). The principal parties negotiating the purported rel ease-dismissal agreement were the Livingstones (through Mrs. Livin gstone's attorney, Ceraso) and the Commonwealth (through Hen eks, an assistant district attorney). The agreement's term s appear to have been that the Commonwealth would not oppose Mrs. Li vingstone's motion for a judgment of acquittal. In exchange, t he Livingstones would submit their medical and household damages bi lls to Washington Township, and, when those bills were pai d, would sign a full release of civil liability with all of the mun icipalities and police officers involved, reciprocal releases of ci vil liability being signed by those police officers and municipal ities withpotential claims against the Livingstones.

Although the municipalities and police officer s were clearly intended to benefit from this agreement, the agreem ent's success did not require them to be parties to it. The Livi ngstones were not harmed by the municipalities' lack of party sta tus. If Washington Township did not pay the Livingstones' a ctual expenses, or if one of the municipalities or officers refused to sign (or to negotiate in good faith towards) a release, the Liv ingstones would have lost nothing. The criminal charges against Mr s. Livingstone could not have been reinstituted; moreover, the Liv ingstones would presumably have been free to file a civil action ag ainst any of the municipalities or police officers that failed to co operate as anticipated. An implicit term of this release-dismissal agr eement is necessarily that the Livingstones could bring a civ il suit against the municipalities or police officers only after th e Livingstones had made a good-faith effort to negotiate towards r eciprocal releases and those negotiations had failed. This t erm follows from the duty of good faith and fair dealing, Restatemen t (Second) of

Contracts  205 (1981), and that duty's correlative obligation not to act so as to defeat an agreement's objective. T he record indicates that the Livingstones did not make any ef fort to negotiate towards such reciprocal releases. Hence, assuming that the release-dismissal agreement is otherwise valid and enforceable Ä the question that we will address next Ä the Livi ngstones'

failure to seek mutual releases would seem to bar t heir suit. The Livingstones also question whether North B elle Vernon Borough and Fayette City Borough Ä which I will ref er to, for brevity, as "the two boroughs" Ä had the same statu s under the release-dismissal agreement as did Washington Towns hip. In the voluntariness proceeding in the district court, cou nsel for the Livingstones had requested that a specific question on the verdict form address the status of the two boroughs under t he agreement. The district court declined to include such a quest ion on the form, finding that Ceraso's statements in the colloquy be fore Judge Cicchetti included all three municipalities, and th at all three therefore had the same status for purposes of the v oluntariness question. In response to the objections of the Liv ingstones' counsel to this ruling, the district court permitte d him to argue to the jury that the ambiguous nature of the agreem ent between the Livingstones and the two boroughs rendered the rele ase-dismissal agreement involuntary as a whole. App. at 804-06. Although the Livingstones' argument focuses on whether the release-dismissal agreement was voluntary as to the two boroughs, this issue cannot be completely disentangled from t hat of whether the agreement addressed the boroughs at all. The c olloquy before Judge Cicchetti is far from a model of clarity on t his question. During the colloquy, Ceraso stated that he had no objection if those police departments or th ose municipalities also wish to be included in the release, and we would then have reciprocal releases fro m them, and we would let that up to their individual couns el to make that decision, but we certainly would have no objection in doing that so it would be reciprocal on bot h sides.Appellees North Belle Vernon Borough and Officer Da rhl Snyder's

App. at 31. This statement can be construed either (1) as indicating that the Livingstones had undertaken to negotiate towards a civil release with the two boroughs (maki ng the boroughs, with Washington Township, third-party beneficiaries of the releasedismissal agreement), or (2) as merely making an of fer to those two municipalities. The question of which of these readings of Cer aso's remarks is correct was not argued before the district court. On remand, the district court should permit the parties to brief t his question. In resolving this issue, the district court may con sult all of the sources to which courts usually refer in determinin g the meaning of ambiguous contractual language, including, for inst ance, the course of the negotiations between the parties.

IV. The Public Interest In Town of Newton v. Rumery, 480 U.S. 386 (198 7), a fourJustice plurality found that, as a matter of federa l common law, a release-dismissal agreement will operate to bar a s ection 1983 claim unless "the interest in [the agreement's] enf orcement is outweighed in the circumstances by a public policy harmed by the enforcement of the agreement." Id. at 392. Justic e O'Connor, whose fifth vote was dispositive, noted in a concur ring opinion

that it is the burden of the defendants to demonstr ate that "a particular release executed in exchange for the dis missal of criminal charges was voluntarily made, not the prod uct of prosecutorial overreaching, and in the public inter est." Rumery,

480 U.S. at 401. In Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993) (in banc), cert. denied, 114 S. Ct. 1303 (1994), this court ad dressed the

circumstances in which enforcement of a release-dis missal agreement will be in the public interest. Cain made clear th at the abovequoted passage from Justice O'Connor's Rumery concu rrence should not be read to suggest that the "prosecutorial over reaching" and "public interest" questions are to be analyzed sepa rately; rather, "the concept of prosecutorial misconduct is embedde d in a larger inquiry into whether enforcing the release would ad vance the public interest." Id. at 380; see also Lynch v. City of A lhambra, 880 F.2d 1122, 1126 n.6 (9th Cir. 1989) (arguing that t here is only one inquiry); but compare Woods v. Rhodes, 994 F.2d 494 , 500-01 (8th Cir. 1993) (apparently treating the analyses as dis tinct). Cain found that a party seeking to demonstrate that the enforcement of a release-dismissal agreement is in the public interest must make two distinct showings, which we will call here Cain's "objective" and "subjective" elements. Cain 's objective element requires both that "the facts known to the prosecutor when the agreement was reached" must have sufficed to su pport the prosecutor's proffered public interest reason for c oncluding the agreement, and that this public-interest reason be a legitimate one. 7 F.3d at 381. Relevant public interests inc lude the interest, cited by the Court in Rumery, in avoiding the costs and disruptions associated with defending "marginal" or "frivolous" civil rights actions, Rumery, 480 U.S. at 395, and the countervailing interest, also cited by the Court, i n detecting anddeterring official misconduct. See Rumery, 480 U.S . at 394; id. at

400 (O'Connor, J., concurring). Cain's subjective element is its requirement t hat: the public interest reason proffered by the pr osecutor must be the prosecutor's actual reason for seeking the release. . . . Any alternative to the 'actual reason' require ment creates the real danger that actions taken pursuant to an improper motive, such as to protect public officials from a mer itorious civil rights lawsuit, may be legally excused because a court later finds that some 'benefit' might have been inci dentally

achieved.

7 F.3d at 381 (emphasis in original). The party se eking to enforce the release-dismissal agreement bears the burden of proof on both

of these elements. In the present case, the district court denied a motion by the Livingstones that sought to establish as a matter o f law that the enforcement of the release-dismissal agreement was contrary to the public interest, and instead entered summary judgme nt against the Livingstones on this question, finding that the enf orcement of the agreement was in the public interest as a matter of law. On appeal, the Livingstones challenge both rulings. T hey argue, first, that the district court erred in denying the ir motion for summary judgment, and that it should have found the releasedismissal agreement unenforceable as a matter of la w. In the alternative, they contend that the district court e rred in granting the appellees' motion for summary judgment, because there was a genuine issue of material fact as to prosecutorial motive. The Livingstones' two arguments are founded on distinct elements of the Cain analysis. Their argument that the district court erred in declining to find the release-dismis sal agreement

unenforceable as a matter of law is directed at Cai n's objective element; it challenges the district court's conclus ion that the facts known to the prosecutor at the time the relea se-dismissal agreement was concluded sufficed to establish that it was in the public interest to conclude such an agreement. The ir argument that there is a genuine issue of material fact as to pro secutorial motivation is directed at Cain's subjective compone nt, which requires that the prosecutor's stated reason for co ncluding a release-dismissal agreement "must be the prosecutor 's actual reasonfor seeking the release." Cain, 7 F.3d at 381. We wil l consider these arguments in that order.

A. Cain's Objective Element 1. The District Court's Analysis

The district court concluded that the facts kn own to the prosecutor at the time the agreement was concluded justified finding that the enforcement of the release-dismiss al agreement would be in the public interest. The court explain ed its

conclusion as follows:

Here, Judge Cicchetti, who presided over the c riminal trial against Mrs. Livingstone and who supervised th e execution of the release-dismissal agreement, stated in the colloquy thathe was supportive of the agreement because he saw no benefit

to a criminal trial and that it was in everyon e's best interest to resolve the matter. Mr. Heneks, t he assistant district attorney who was assigned to the case stated that he

believed that the Commonwealth would be well-s erved by the resolution as well. Later, in a sworn stateme nt, Mr. Heneks

indicated that continuation of the criminal tr ial would have created further conflict between the Livingsto nes and their daughter who had reconciled their differences since the night of the incident. In addition, he stated that the agreement saved the Commonwealth from spending further r esources to prosecute. The reasons stated by Mr. Heneks a re factors that were known to him at the time the agreement wa s executed. In

the absence of evidence that the motivation wa s improper, we may accept his explanation. In addition, each reason constitutes an independent, legitimate reason which is directly related to his prosecutorial responsi bilities. SeeRumery,

480 U.S. at 398.

App. at 380-381. The court's analysis posits three public-interest rationales for upholding the release-dismissal agre ement: the agreement's supervision by Judge Cicchetti, the des ire of the

Commonwealth to avoid further conflict between the Livingstones and their daughter, and the Commonwealth's wish to avoi d expending more of the Commonwealth's resources to prosecute Mrs. L ivingstone. We

will consider these three rationales seriatim. As to the first of the three rationales, it is of course true that (1) the Rumery plurality noted that judicial s upervision of release-dismissal agreements can "help ensure that the agreements did not result from prosecutorial misconduct," 480 U.S. at 399 n.10, and (2) Justice O'Connor observed that such s upervision can "bear on whether a release was voluntary and not th e product of overreaching," id. at 401-02. Judicial supervision can indeed be important in ensuring that an agreement was conclud ed voluntarily, and, to a lesser extent, that the prosecutor's stat ed reasons for seeking an agreement are genuine. Judicial supervi sion is less relevant to Cain's objective inquiry, however, whic h focuses on the information known to the prosecutor. At best, judi cial supervision may help to reinforce a subsequent court's independ ent determination that a prosecutor had a sound public- interest reason for concluding a release-dismissal agreement. As w ill become clear, it seems unlikely that Judge Cicchetti's sup ervision of the dismissal of the charges against Mrs. Livingstone p layed that role

here.

Nor does Heneks' asserted desire to avoid furt her stress to the Livingstone family serve a particularly strong public interest. It is, of course, commendable for prosecutors to gi ve some thought to the welfare of the accused's family. In practic e, however, the public would be rightly surprised were a prosecutor to place these considerations above, for instance, the public inte rest in punishing crime, or the public interest, expressed in section 1983, in exposing official abuse. We do not think that t he public's interest in avoiding strain to a defendant's family can, standing alone, be a legitimate reason for concluding a rele ase-dismissalagreement.

Nor, finally, does Heneks' wish to avoid the c ost of further prosecution carry much weight. A desire to avoid t he cost of prosecution (and of a related civil suit) may be an acceptable public-interest rationale for some release-dismissa l agreements. As Justice O'Connor observed in Rumery: [P]rosecutors may legitimately believe that, t hough the police properly defused a volatile situation by arres ting a minor misdemeanant, the public interest in further l itigation is outweighed by the cost of litigation. Sparing the local community the expense of litigation associated with some minor crimes for which there is little or no public interest in prosecution may be a legitimate objective of a release- dismissal agreement.

480 U.S. at 399-400. By definition, in any case in which a release-dismissal agreement has been concluded, the community will have avoided the cost of prosecution; thus, a prose cutor could assert that "the public interest in further litigat ion is outweighed by the cost of litigation" in any case. In order to

ensure that such assertions do not act as a blanket exception to the public-interest element of Rumery, the courts m ust subject those assertions to close scrutiny.

2. Marginal or Frivolous Nature of the Livingstone s' Civil Rights

Claims

The record does not indicate that Heneks consi dered whether the Livingstones' civil rights claims were marginal or frivolous before concluding the agreement. In Cain, we state d that a prosecutor must conduct an "individualized analysis " of a defendant's civil rights claims before concluding a releasedismissal agreement, 12 F.3d at 383, and that in or der for a release-dismissal agreement to be enforceable "ther e must be a case-specific showing that the released civil right s claims appeared to be marginal or frivolous at the time th e agreement was made and that the prosecutor was in fact motivated by this reason."

Id. The question whether the facts known to Heneks could have supported the conclusion that the Livingstones' civ il rights claims were marginal or frivolous was not addressed in the district court. On this record, resolution of that question in the defendants' favor was a necessary predicate for a g rant of summary judgment holding that the release-dismissal agreeme nt was in the public interest. We will, therefore, vacate the di strict court's grant of summary judgment and remand the case so th at the parties can address the question whether the Livingstones' civil rights claims were regarded Ä and, if so, whether they wer e properly regarded Ä by the prosecuting attorney as marginal or frivolous. We think that, on remand, the parties will, at a minimum, wish

to take account of the material in this record whic h suggests that, at the time Heneks agreed to the dismissal of the c harges against Mrs. Livingstone, considerable information pointing in the direction of significant police misconduct had come to Heneks' attention. Of course, what is of record here canno t be deemeddispositive of the question whether Heneks could pr operly have

concluded that the Livingstones' civil rights claim s were marginal or frivolous, for the reason that the proceedings i n the district

court have not been focused on that issue. Further evidence may be

adduced on remand that casts the relevant events in a very different light. But we think it may be helpful to relate the principally salient matter appearing in our current record in order to provide a point of departure for the proceedings on remand. The most important item of evidence in this re spect is the report of Dr. Noche, the emergency-room doctor who examined Mrs. Livingstone on the night of her encounter with the police. That report indicates that Mrs. Livingstone had first or second degree burns in her vaginal area. The substance of Dr. No che's report was almost certainly known to Assistant District At torney Heneks. The record does not contain any plausible explanati on of how this burn came to appear on Mrs. Livingstone's genitalia Ä other than Mrs. Livingstone's own explanation, which was that it was the result of the police's deliberate misuse of a stun gun. Nor is there any indication in the record that Heneks was aware of other evidence that contradicted the emergency-room repor t. In short, it is difficult to escape the conclusion that Dr. N oche's report significantly corroborates Mrs. Livingstone's claim that the police deliberately applied a stun gun to her genitalia, a n act that, if it did occur, would amount to an outrageous instanc e of police

abuse. It is possible that facts not in the present r ecord would undermine some element of the foregoing analysis. On remand, the parties should address (1) whether Heneks made a de termination that the Livingstones' civil rights claims were marginal or frivolous, and, if so, on what basis he did so; (2) whether He neks knew or should have known of the foregoing evidence of poli ce misconduct; and (3) if Heneks did know, or should have known, o f that evidence, whether other facts available to Heneks in some way undercut it. We emphasize that it would not suffice for the defe ndant municipalities and police officers to demonstrate o n remand that Heneks was aware of other evidence that merely cont radicted the foregoing evidence of police misconduct, as this wo uld only

establish that there was substantial evidence on bo th sides of the misconduct question. Instead, defendants would hav e to
demonstrate that Heneks was aware of other evidence that rendered the foregoing evidence of police misconduct fundame ntally untrustworthy. It is conceivable that the district court may conclude that Heneks was not aware, and had no reason to be aware , of some of the foregoing evidence of official misconduct, and that , not being apprised of this evidence, Heneks reasonably determ ined that the Livingstones' civil rights claims were marginal or frivolous. That would not, however, be the end of the district cour t's inquiry.

The district court would then have to address the f urther question whether enforcement of a release-dismissal agreemen t in the face of substantial evidence of police misconduct would be compatible with Rumery and Cain, notwithstanding that the evidence of misconduct was not known, or reasonably knowable, by the prose cutor at the time the prosecutor entered into what might appear, in retrospect,to be an improvident agreement.

B. Cain's Subjective Element: Prosecutorial Motiva tion Cain's subjective element requires that the pu blic-interest reasons cited by a party seeking to enforce a relea se be those that actually motivated the prosecutor to conclude the r elease. That is, under Cain, a court may not enforce a release i f it finds that

the release was concluded for some reason different from that presented as justifying enforcement, even if the co urt believes that "some 'benefit'" would be "incidentally achiev ed" by enforcement. Cain, 7 F.3d at 381. The Livingstones challenge the district court' s determination that there was not a genuine issue of material fact as to whether the prosecutor's stated reasons for concluding the releasedismissal agreement were his actual reasons for doi ng so. The

district court based this determination on the foll owing: (1) the charges against Mrs. Livingstone were filed the day after her encounter with the police; (2) the charges "corresp ond to the relevant conduct of Mrs. Livingstone according to t he statement taken from Carrie Livingstone, and the affidavit wh ich supports the complaint"; and (3) "discussions of settlement were initiated after nearly three days of testimony in the criminal tria l." App. at

379-80. We do not quarrel with these three proposition s. But they do not, in our judgment, constitute a sufficient predi cate for the determination that there is no genuine issue of mat erial fact with respect to whether the prosecutor's stated reasons were his real reasons. As we have noted, on the record before th is court it appears not unlikely that the prosecutor was aware of substantial evidence of police misconduct in the present case. This lends credence to the inference that the prosecutor's dec ision to bring charges against Mrs. Livingstone, the manner in whi ch he conducted the trial, and his decision to propose the conclusi on of a releasedismissal agreement to the Livingstones may have be en motivated by a desire to protect the relevant police officers an d municipalities from liability. Such a motivation would render the agreement unenforceable. See Cain, 7 F.3d at 381. None of the three propositions relied on by th e district court eliminates the possibility that the prosecutor acte d with an improper motive. As to the fact that the charges a gainst Mrs. Livingstone were filed promptly, it is true that, h ad the charges against Mrs. Livingstone been brought well after th e incident, or after the police learned that she intended to sue, this might have indicated prosecutorial misconduct. See Lynch v. C ity of Alhambra, 880 F.2d 1122, 1128-29 (9th Cir. 1989). But the fa ct that the charges against her were brought promptly does not, conversely,

demonstrate that no misconduct occurred. As to the fact that the charges against Mrs. Livingstone were supported by independent evidence, charges need not be fabricated in order f or a releasedismissal agreement to be the product of an imprope r prosecutorial motive. The relevant question is instead whether t he decision to pursue a prosecution, or the subsequent decision to conclude a release-dismissal agreement, was motivated by a des ire to protect public officials from liability. Finally, the fact that thediscussions of settlement were initiated "after nea rly three days

of testimony in the criminal trial" is subject to m any interpretations. One interpretation which is at od ds with summary judgment is that a purpose of the trial was to erod e the Livingstones' resistance to signing a release. We therefore find that there is a genuine issu e of material fact as to whether the prosecutor's stated reasons for concluding the release-dismissal agreement at issue in the pre sent case were his actual reasons. Thus, should the district cour t find that information known to the prosecutor could have suff iced to establish that there was a legitimate public-intere st reason for concluding a release-dismissal agreement, it should then conduct a jury trial to determine whether the prosecutor's st ated reasons for concluding an agreement were his actual reasons for doing so.

V. Voluntariness

A. Standard of Proof of Voluntariness The district court instructed the jury that th e defendant's burden of proof in establishing the voluntariness o f the releasedismissal agreement was one of "preponderance of th e evidence." The Livingstones challenge that instruction, arguin g that the

standard should have been one of "clear and convinc ing evidence."
We agree. In Rumery, the Supreme Court had no occasion t o consider the appropriate standard of proof; the language used by the Court in finding the release-dismissal agreement at issue in that case enforceable was consistent with either a prepondera nce standard or a standard of clear and convincing evidence. Altho ugh we did not explicitly address the question of the appropriate standard of proof in Livingstone I, we did observe that oral re lease-dismissal agreements should be subjected to particularly exac ting judicial scrutiny: Ordinarily, the existence and terms of [a rele ase-dismissal] agreement can be resolved by reference to a wr itten document.

While we do not hold that as a matter of law a n oral agreement to waive the right to sue in exchange for the dismissal of criminal charges can never be valid, the absen ce of a written release-dismissal agreement requires even more scrupulous review by the courts than otherwise. No publi shed opinion of any of the courts of appeals after Rumery has even considered, much less sustained, an oral release-dismissal agreement. Indeed, the Rumery Court never mentioned the p ossibility of an oral release-dismissal agreement. Justice Ste vens, at least, assumed that such agreements were written. Se e Rumery, 480 U.S. at 417 n.22, 107 S.Ct. at 1205 n.22 ("A c ourt may enforce such an agreement only after a careful inquiry into the circumstances under which the plaintiff signed the agreementand into the legitimacy of the prosecutor's objective in entering into [it]." (emphasis added)) (Steven s, J., dissenting).

12 F.3d at 1212. We then noted a number of advanta ges of written agreements. These included the fact that they "all ow the parties more opportunity for deliberate reflection," id., a nd that awritten document facilitates negotiation as to the agreement's

terms, see id. at 1213. We also observed that a wr itten releasedismissal agreement may provide a subsequent court with evidence as to "the parties' respective bargaining power." Id. For example, if the attorney for the party forgoing civil claims prepared the agreement, this may support the conclusion that the agreement was voluntary; if the prosecutor did so, and if he pres ented it in a manner that discouraged negotiation, this may suppo rt the

conclusion that it was not. See id. In Addington v. Texas, 441 U.S. 418 (1979), th e Supreme Court set forth its methodology in assigning standards of proof:

The function of a standard of proof, as that c oncept is

embodied in the Due Process Clause and in the realm of factfinding, is to 'instruct the factfinder co ncerning the degree of confidence our society thinks he sho uld have in the correctness of factual conclusions for a parti cular type of adjudication.' In re Winship, 397 U.S. 358, 3 70, 90 S.Ct. 1068, 1070, 25 L.Ed.2d. 368 (1970) (Harlan, J. , concurring).

The standard serves to allocate the risk of er ror between the litigants and to indicate the relative importa nce attached to

the ultimate decision.

Id. at 423. The Court then placed the three standa rds of proof within this broad framework. The least demanding s tandard, that of a preponderance of the evidence, is appropriate to a "typical civil case involving a monetary dispute between private p arties." Id. Society's concern with the outcome of such a case i s "minimal"; thus, it is appropriate to adopt a standard that al locates the risk of error between the litigants "in roughly equal fa shion." Id. The standard of proof beyond a reasonable doubt, by contrast, is reserved for criminal cases, in which society wishe s to "exclude as nearly as possible the likelihood of an erroneous j udgment." Id.

Intermediate between these two standards is th e one applicable

in cases in which "the interests at stake . . . are deemed to be more substantial than mere loss of money." Id. at 424. The standard has been known by a variety of names, but "usually employs some combination of the words 'clear,' 'cogent,' 'u nequivocal,' and 'convincing.'" Id. at 424. Examples of proceedings in which the Court has found a heightened standard of proof to b e appropriate are proceedings to terminate parental rights, see S antosky v. Kramer, 455 U.S. 745 (1982); involuntary commitment proceedings, see Addington, 441 U.S. at 432; and deportation pro ceedings, seeWoodby v. INS, 385 U.S. 276, 285-86 (1966). The Court has stated that, in civil actions be tween private litigants, a standard of proof greater than one of a preponderance of the evidence will only apply in cases in which " 'particularly important individual interests or rights are at sta ke.'" Grogan v. Garner, 498 U.S. 279, 286 (1991) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389-90 (1983)). Thus, a preponderance

standard suffices even in cases in which "severe ci vil sanctions" may ultimately be imposed, if those sanctions do no t implicate particularly important interests or rights. See Hu ddleston, 459

U.S. at 389.We find that the enforcement of the oral relea se-dismissal

agreement at issue in this case would indeed implic ate "important individual interests or rights." Although the Livi ngstones' section 1983 claims are in form claims for money da mages, underlying them is the Livingstones' interest in re dressing a possible violation of their constitutional rights. Moreover, section 1983 actions, when successful, do more than compensate injured plaintiffs: they serve the important public purpose of exposing and deterring official misconduct, and the reby protecting the rights of the public at large. In Rumery, all nine Justices recognized the importance of ensuring that release- dismissal agreements do not encroach upon this purpose. See Rumery, 400 U.S. at 395; id. at 400 (O'Connor, J., concurring); id. at 419 (Stevens, J., dissenting). A clear-and-convincing standard appropriately allocates more

of the risk of error associated with oral release-d ismissal agreements to those who seek to enforce them. As w e noted in Livingstone I, oral release-dismissal agreements ra ise particularly significant questions of voluntariness, as the lack of a written document may inhibit negotiation as to an agreement 's terms and render it difficult for prospective parties to refl ect on those terms. We also observed in Livingstone I that an o ral agreement ordinarily contains less evidence as to the course of the parties' negotiations than does a written agreement. As a r esult, there is a greater risk of error in a jury's evaluation of w hether an oral release-dismissal agreement was concluded voluntari ly. We think that those seeking to enforce a relea se-dismissal agreement should bear this greater risk. Indeed, a "clear and convincing" standard will encourage prosecutors Ä w ho are likely to have comparatively frequent contact with release-di smissal agreements, and who have an interest in ensuring th at those agreements are later found to be enforceable Ä to e nsure that release-dismissal agreements are, whenever possible , written down. The standard will therefore have the salutary effec t of reducing the overall risk of misunderstandings in the conclu sion of releasedismissal agreements, and increasing the accuracy o f juries' decisions as to whether a release-dismissal agreeme nt was concluded voluntarily. Since, when this case was first remanded, the parties challenging the enforceability of the Livingstones' oral releasedismissal agreement were only required to establish the voluntariness of the agreement under a preponderanc e-of-theevidence standard, the jury's finding of voluntarin ess will be vacated. If, on this remand, it again becomes nece ssary to address the issue of voluntariness, the more demanding clea r-and-convincing

standard will be utilized.

B. Instruction on Existence of a Legitimate Crimin al Justice Objective. The Livingstones sought to have the district c ourt instruct the jury that one of the factors for it to consider in determining whether they voluntarily entered into the release-d ismissal agreement was "whether there is a l[e]gitimate crim inal justice objective to support [the agreement's] validity." Livingstones'Proposed Jury Instruction 10, App. at 394. The dis trict court

declined to so instruct; the Livingstones contend t hat this was

error. Evidently the rationale for the proposed instr uction was that the Livingstones sought to argue to the jury that e lements of the public-interest analysis should enter into the jury 's evaluation of whether the agreement was voluntary. We see no rea son why the public-interest issue is pertinent to the jury's co nsideration of the voluntariness issue, and we therefore think the district court was correct in concluding that such an instruction would have been inappropriate.

C. Admission of Ceraso's Testimony. The district court found that, by challenging the releasedismissal agreement, the Livingstones had waived an y claim of attorney-client privilege as to the testimony of Ce raso, Mrs. Livingstone's lawyer at her criminal proceeding. A ccordingly, the district court permitted Ceraso to be deposed, and then allowed him to be called as a witness at the voluntariness proc eeding. App. at 101. On appeal, the Livingstones argue that this d ecision was erroneous. We disagree. "The attorney-client privilege is waived for a ny relevant

communication if the client asserts as a material i ssue in a proceeding that: (a) the client acted upon the advi ce of a lawyer

or that the advice was otherwise relevant to the le gal significance

of the client's conduct." Restatement of the Law G overning Lawyers  130(1) (Final Draft No. 1, 1996); see also Rhone-Po ulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) ("[A] party can waive the attorney client privilege by as serting claims that put his or her attorney's advice in issue in t he litigation."). The Livingstones' complaint states that Washington Township "may seek to assert as a possible defense a purported agreement not to sue and/or release," but that the Township "will

not be able to sustain its burden that the same was entered into in a knowing and voluntary fashion." App. at 21. The complaint goes on to state that the agreement was not "knowing" be cause "[p]laintiffs, at the time, were unaware that the s ame could be interpreted as foregoing a damage claim. They spec ifically were unaware of the precise extent of any claimed waiver ." App. at 22. The Livingstones made similar claims before the dis trict court and on appeal. Mrs. Livingstone was represented by counsel at her criminal trial; her attorney played a central role in the ne gotiation of the release-dismissal agreement. Under Rumery, the adv ice of counsel is an explicit, and important, element of the volun tariness analysis. See Rumery, 480 U.S. at 394; id. at 401 (O'Connor, J., concurring) (citing, as one of the factors bearing on the enforceability of a release-dismissal agreement, "i mportantly, whether the defendant was counseled"). Mrs. Living stone's assertion that she did not appreciate the release-d ismissal agreement's legal implications is tantamount to a c laim that her attorney did not give her accurate legal advice. I t would be unfair to allow her to make this claim without perm itting the opposing parties to investigate her attorney's vers ion of therelevant events. See United States v. Bilzerian, 9 26 F.2d 1285,

1292 (2d Cir.), cert. denied, 502 U.S. 813 (1991) ( holding that a party who asserts a claim that "in fairness require s examination of protected communications" thereby waives the attorn ey-client privilege as to those communications). In the term s of the draft Restatement, Mrs. Livingstone has effectively asser ted that the advice provided to her by her attorney is "relevant to the legal significance of [her] conduct." Accordingly, we fi nd no error in the district court's ruling that the attorney-clien t privilege had

been waived.

D. Exclusion of Expert Testimony. The Livingstones challenge the district court' s decision, at the voluntariness proceeding, to exclude the testim ony of their expert, John Peters, who had prepared a report addr essing the underlying liability of the police officers and of Washington Township. Mrs. Livingstone's attorney, Ceraso, had testified that he had advised Mrs. Livingstone to conclude a relea se-dismissal agreement because any damages that she would recove r in a subsequent civil suit would have been largely, or c ompletely, offset by the damages that the police officers woul d recover, assuming that they filed counterclaims. App. at 76 7. The plaintiffs sought to introduce Peters' testimony in order to

demonstrate that Ceraso's advice had been inaccurat e. The district court found that Peters' testimony was inadmissible under Rule 702,

because it would not assist the trier of fact to un derstand the evidence, and under Rule 403, because of prejudice, confusion of the issues, misleading the jury, and waste of time. App. at 777. We will address only the district court's appl ication of Rule 403, which we find was entirely appropriate. Peter s' report was quite likely to be prejudicial; it asserted, in con siderable detail, that Washington Township and the police-off icer defendants had violated Mrs. Livingstone's civil rights. A ju ry presented

with a substantial amount of information on the mer its of an underlying civil rights action might well look to t hose merits in making its decision on the distinct Ä and distinctl y different Ä issue of voluntariness, thus creating a significant risk of prejudice. Rule 403 requires that a court balance the pre judicial effect of proposed evidence against its probative value. If evidence that a party to a release-dismissal agreement had receiv ed improper legal advice is of sufficient probative value, this analysis may well weigh in favor of admissibility. The probativ e value of Peters' testimony was not, however, high, as it did not engage Ceraso's testimony directly. Ceraso's advice to Mr s. Livingstone had addressed the net award of damages that she cou ld expect from her potential civil suit against the police and the ir potential civil suit against her. Peters' report only barely touched on the merits of a possible civil suit by the police again st Mrs. Livingstone, and did not discuss the likely award o f damages in either suit. Thus, his testimony would not have gr eatly helped the jury to understand the correctness of Ceraso's advice.

E. Exclusion of Trial Transcript.At the trial of the voluntariness issue, couns el for the

Livingstones sought to introduce into evidence an e xchange between Heneks and Judge Cicchetti that occurred the day be fore the release-dismissal agreement purportedly was conclud ed. The district court found that this exchange was not rel evant, and excluded it. The Livingstones appeal this ruling, asserting that Judge Cicchetti's comments in the exchange that the y sought to

introduce resembled his later remarks at the releas e-dismissal colloquy, and that the Livingstones might have been misled into believing that he was simply repeating his earlier comments. We agree with the district court's finding that this e xchange is not relevant. Judge Cicchetti's comments in the portio n of the exchange presented to the district court, App. at 7 90, bore little

resemblance to his later comments at the release-di smissal proceeding, Appellees' App. at 32.

VI. Application of Pennsylvania Law to the Livings tones' State-Law

Claims. As we noted in our discussion of the procedura l history of this case, the district court dismissed a number of the Livingstones' state-law claims on grounds, such as the statute of limitations, unrelated to the release-dismissal agr eement. The dismissal of those claims is not before us on appea l. The remaining state-law claims included claims of assau lt and battery against defendants Monack and Snyder; a claim of in tentional infliction of emotional distress against defendants Monack, Snyder, and Moody; and a claim of conversion against all de fendants. Neither the parties nor the district court hav e discussed what standard applies to determine the enforceability of the releasedismissal agreement as to the state-law claims. In stead, they have apparently assumed that the standard applicable to these claims is no different from that applicable to section 1983 c laims. This is not necessarily true; the question whether the Livi ngstones have

waived their claims under state law is itself one o f state law, see Livingstone I, 12 F.3d at 1210 n.6, and state l aw cannot be assumed to parallel federal law on this question. In Livingstone I, we observed that the courts of Pennsylvania "frequently follow the principles set forth in the Restatement [of Contracts]," id., and suggested that the Pennsylva nia Supreme Court might be likely to do as the United States Su preme Court did in Rumery, and look to the public-interest analysis in the Restatement of Contracts to determine when it is ap propriate to enforce a release-dismissal agreement. See id. Ho wever, we did not then have occasion to decide precisely what sta ndard Pennsylvania would apply to the enforcement of a re lease-dismissal agreement. That question is now before us. Indeed , that question subsumes two distinct questions: (1) What standard would Pennsylvania courts be likely to apply to determine whether the enforcement of a release-dismissal agreement is in the public interest? (2) What standard would Pennsylvania cou rts be likely to apply to determine the voluntariness of a release-d ismissal agreement?

A. Public InterestWe have discovered no reported Pennsylvania ca ses addressing

the question of when, if ever, it is in the public interest to enforce a release-dismissal agreement. Our analysi s of the caselaw and policies of the Commonwealth of Pennsylvania ha s persuaded us, however, that the Supreme Court of Pennsylvania wou ld apply a public-interest standard resembling that applied un der federal law. The courts of Pennsylvania have long declined to enforce contracts that are contrary to public policy. See, e.g., Kuhn v. Buhl, 96 A. 977 (Pa. 1916) (finding unenforceable a s against public policy an agreement between bidders for public land s under which one of them would, in exchange for a fee, withdraw its bid). After Kuhn, the Supreme Court of Pennsylvania accepted th e standard set forth in section 320(1) of Tentative Draft No. 12 o f the Restatement (Second) of Contracts (March 1, 1977) a s its standard for the nonenforcement of contracts as against publ ic policy. SeeCentral Dauphin School District v. American Casualty Co., 4 26 A.2d 94, 96 (Pa. 1981). Section 320(1) of the Tentative Draft was to emerge (with one minor stylistic alteration not rel evant here) as Section 178(1) of the Restatement (Second) as final ly adopted. It provides that "[a] promise or other term of an agre ement is unenforceable on grounds of public policy if legisl ation provides

that it is unenforceable or the interest in its enf orcement is clearly outweighed in the circumstances by a public policy against
the enforcement of such terms." Restatement (Secon d) of Contracts  178(1) (1981). We may reasonably conclude Ä as the Pennsy lvania Superior Court has already concluded, see Donegal M utual Insurance Co. v. Long, 564 A.2d 937, 942 (Pa. Super. 1989) Ä that the Pennsylvania Supreme Court, having accepted tentati ve section 320(1) in Central Dauphin, would now accept permane nt section 178(1). In Rumery, the Supreme Court drew upon section 178(1) to

fashion its federal common-law rule that a release- dismissal agreement will be unenforceable "if the interest in its enforcement is outweighed in the circumstances by a public poli cy harmed by enforcement of the agreement." Rumery, 480 U.S. at 392 & n.2. We think that the Pennsylvania Supreme Court would not only draw on section 178(1) in considering the enforceability of a releasedismissal agreement but, in construing that section 's open language, would look to Rumery and its progeny in t he courts of appeals as persuasive authority. The Pennsylvania Supreme Court would, of course, also consider the policies of the Commonwealth of Pennsylvania, as expressed in the Commonwealth's st atutes and common law. The Pennsylvania Supreme Court has tre ated Pennsylvania's common law as an important instrumen t for curbing official misconduct, paralleling at the level of st ate law the United States Supreme Court's view of the policies underlying section 1983. See, e.g. Supervisors of Lewis Towns hip v. Employers Mutual Casualty Co., 523 A.2d 719, 722 (Pa. 1987) ( finding that permitting insurance coverage of willful or fraudul ent conduct on the part of a public official is contrary to Pennsy lvania law and public policy, as personal financial liability is i ntended to deter official misconduct). We therefore conclude that t he Pennsylvania Supreme Court would subject agreements that purport to waive tort liability to at least as careful scrutiny as the Un ited StatesSupreme Court has applied to agreements purporting to waive

liability under section 1983. The Livingstones argue that the law of the Commonwealth of Pennsylvania strictly limits the private resolution of criminal charges. In support of this claim, they cite Penns ylvania Rule of Criminal Procedure 314, a rule permitting a form of courtsupervised settlement in certain types of criminal cases. That rule provides: When a defendant is charged with an offense wh ich is not alleged to have been committed by force or vio lence or threat thereof, the court may order the case to be di smissed upon motion and a showing that:

(a) the public interest will not be adversely affected; (b) the attorney for the Commonwealt h consents to the dismissal; (c) satisfaction has been made to th e aggrieved person or there is an agreement that satisfaction will be made to the aggrieved person ; (d) there is an agreement as to who shall pay the

costs.

Pa. R. Crim. P. 314. The Livingstones assert that the fact that this rule does not permit settlements in the case o f offenses "alleged to have been committed by force or violenc e or threat thereof" implies that such settlements are disfavor ed, or perhaps prohibited, under Pennsylvania law. We are not persuaded that Rule 314 demonstrate s that Pennsylvania would not permit release-dismissal agr eements in other situations. A prosecutor who has sound public-inte rest reasons for declining to go forward with a prosecution, or for terminating a prosecution after it has begun, must have the autho rity to do so. As a corollary of this authority, a prosecutor pres umably also has the authority to condition a dismissal on some unde rtaking by the

defendant. We find, however, that Rule 314 demonstrates t hat the courts of Pennsylvania would be likely to subject release- dismissal agreements to close scrutiny. Further, the fact th at Rule 314(a) requires that a judge determine that "the public in terest will not be adversely affected" by a dismissal demonstrates the Commonwealth's commitment to reviewing release-dism issal agreements for their impact on the public interest. The Penns ylvania courts

have also read Rule 314's limitations on the circum stances in which criminal prosecutions may be dismissed to indicate that "the law does not favor out-of-court compromise over prosecu tion." Commonwealth v. Pettinato, 520 A.2d 437, 439 (Pa. S uper. 1987) (concluding that an offer from a criminal defendant to pay a complainant a fee in exchange for her agreement not to testify was

admissible into evidence in the defendant's crimina l trial; because Rule 314 strictly limits consensual dismissals in c riminal cases, the civil rule of evidence barring the admission of offers of settlement into evidence did not apply). In summary, then, we find that Pennsylvania wo uld be likely topermit release-dismissal agreements to be enforced in some cases,

but would monitor them closely to ensure that their enforcement is in the public interest. The federal rule, which pl aces the burden of proving that a release-dismissal agreement is in the public interest on those seeking to enforce the agreement, has the same goals. Pennsylvania would therefore be likely to a pply a very

similar rule.

B. Voluntariness The Court observed in Rumery that private citi zens are permitted to waive their constitutional rights in m any circumstances. For instance, criminal defendants m ay waive constitutional rights through plea bargaining, and the resulting agreements are ordinarily enforced if they are volu ntary. Voluntary release-dismissal agreements, Rumery reas oned, should therefore also be permitted. See 480 U.S. at 393-9 4. Pennsylvania, too, permits plea bargaining, se e, e.g., Commonwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 19 93), and will uphold a guilty plea if it is knowing and voluntary , seeCommonwealth v. Alston, 373 A.2d 741, 743 (Pa. 1977). We believe that the Pennsylvania Supreme Court would be likely to follow a line of logic similar to that of the Court in Rumer y, and permit release-dismissal agreements upon a showing of volu ntariness. However, we anticipate that the Pennsylvania S upreme Court would be very attentive to how the voluntariness of a releasedismissal agreement is established. Such judicial attentiveness would be called for both because of the danger that such agreements will be concluded in improper circumstances, and be cause Pennsylvania has a policy of declining to enforce c ontracts concluded under duress or threat of prosecution. S ee, e.g., Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138, 143 (Pa. Super. 1985) (applying a rule that threats of criminal pro secution constitute duress rendering a contract voidable, an d stating: "It is an affront to our judicial sensibilities that on e person's ability to seek another's prosecution can be barter ed and sold the same as commodities in the market place. It is eve n more repugnant when the foul stench of oppression pervades the tra nsaction."). For reasons we have already discussed, the voluntar iness of oral release-dismissal agreements is especially likely t o be problematic, and Ä precisely because such agreement s are not evidenced by a writing Ä determinations of the volu ntariness of such agreements are particularly likely to be unrel iable. Seesupra at 35 - 42. Accordingly, we predict that the Pennsylvani a Supreme Court, when faced with the question, will s ubject the voluntariness of oral release-dismissal agreements to a heightened standard of proof, and we therefore conclude that t he voluntariness of the release-dismissal agreement now before us mu st be demonstrated by clear and convincing evidence.

VII. Conclusion. For the reasons set forth above, we will vacat e the judgment of the district court and remand for further procee dings in accordance with this opinion.------------------------------------------------