## Facts

- John Volland was stopped by two Chicago police officers during a February 25, 2012 traffic stop near his home.
- Volland claimed the officers lacked reasonable suspicion for the stop and, after an argument, used unnecessary force by pepper-spraying him, pulling him from his car, beating him while handcuffed, and arresting him.
- The officers claimed the stop was justified because Volland drove on the wrong side of the street; they said he refused to provide identification, acted hostile, pushed an officer, and forcibly resisted, making pepper spray and a takedown necessary.
- Illinois charged Volland with battery and resisting a peace officer based on the encounter.
- At the state criminal trial, Volland testified in his own defense under oath and was acquitted.
- Volland later sued the officers and the City of Chicago in federal court under 42 U.S.C. § 1983 and related Illinois-law theories arising from the same incident.
- Volland died before the civil trial; his sister, Madonna Volland-Golden, continued the case as executor of his estate.
- As trial approached, the parties filed cross-motions in limine about whether Volland’s transcribed criminal-trial testimony could be introduced at the civil trial despite the hearsay rule.

## Issues

1. Whether Volland’s criminal-trial testimony is admissible in the civil action as “former testimony” under Federal Rule of Evidence 804(b)(1) when Volland is unavailable because he is deceased.
2. In a civil case, whether the State of Illinois (the opposing party at the criminal trial) can be treated as a “predecessor in interest” to the City and the officers for Rule 804(b)(1) purposes.
3. Whether the State had an opportunity and a similar motive to develop Volland’s testimony at the criminal trial compared to the motive the City and officers would have to challenge that testimony at the civil trial.

## Decision

- The court granted the estate’s motion in limine to admit Volland’s former testimony and denied defendants’ motion to exclude it.
- The court held Volland was unavailable due to death and that his testimony was given under oath at a prior trial.
- The court concluded Rule 804(b)(1) was satisfied because, in the earlier criminal case, the State had an adequate opportunity and a sufficiently similar motive to examine Volland about the same event and disputed facts that would be contested in the civil case.

## Legal Principles

- Under Fed. R. Evid. 804(b)(1), former testimony is admissible if: (a) the declarant is unavailable; (b) the testimony was given at a trial, hearing, or lawful deposition; and (c) the testimony is offered against a party (or, in a civil case, a predecessor in interest) that had an opportunity and similar motive to develop the testimony through examination.
- A witness is “unavailable” under Rule 804(a) when the witness is deceased.
- In civil cases, “predecessor in interest” under Rule 804(b)(1) is evaluated in a practical way; strict privity is not required if the earlier opponent’s incentive to test the testimony was comparable to the later opponent’s incentive.
- “Similar motive” does not require identical stakes or identical legal claims; the question is whether the earlier opponent had reason to probe and challenge the same testimony on the same disputed factual questions.
- When a criminal prosecution and a later § 1983 suit arise from the same encounter, a prosecutor’s reason to discredit the defendant’s account and support officers’ version of events can be similar to the later civil defendants’ reason to dispute that account.
- Seventh Circuit authority (including United States v. Boulahanis and United States v. Guinan) supports using an opportunity-and-motive comparison to decide whether Rule 804(b)(1) permits use of former testimony against a later civil litigant.

## Conclusion

Because Volland died before the civil trial, the court treated him as unavailable and admitted his sworn criminal-trial testimony under Rule 804(b)(1), finding that the State’s earlier examination occurred with an opportunity and a sufficiently similar motive to challenge Volland’s version of the February 25, 2012 traffic stop, so the testimony could be presented to the civil jury despite hearsay objections.


Volland-Golden v. City of Chicago, 89 F. Supp. 3d 983 (2015)