School of Law

Pace Law Review
Pace University

Year 2004

A Practitioner’s Guide to Successful Jury
Trials on Behalf of Prisoner-Plaintiffs
Alphonse A. Gerhardstein

This paper is posted at DigitalCommons@Pace.
http://digitalcommons.pace.edu/lawrev/14

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A Practitioner’s Guide to Successful Jury
Trials on Behalf of Prisoner-Plaintiffs*
Alphonse A. Gerhardstein†
I. Introduction
This article is designed to serve as a practice guide for
those representing prisoners in civil rights jury trials. In the
past, the vast majority of prisoner litigation, including cases
pursued by this author, focused on injunctive relief to improve
conditions of confinement and we therefore did bench trials.
However, the 1996 Prison Litigation Reform Act (PLRA)1 has
changed our focus. As will be explained, the PLRA forces prac* The author wishes to thank Jennifer Branch of Laufman & Gerhardstein
and Carrie Wood an intern at the Prison Reform Advocacy Center for her
assistance with the preparation of the text.
† Alphonse Gerhardstein earned his B.A., at Beloit College; and J.D., at New
York University School of Law. For twenty-eight years Mr. Gerhardstein’s practice has focused on civil rights, including prisoner rights, police misconduct, discrimination and reproductive freedom. His prison cases include many individual
actions for injunctive relief and damages and a number of significant class actions.
He currently serves as one of the class counsel in a class action challenging inadequate health care in Ohio prisons. Fussyl v. Wilkinson, No. C-1-03-704 (S.D. Ohio
filed Oct. 16, 2003). He also served as lead counsel for the inmates in a lawsuit
that led to the August, 2000, closing of the private prison in Youngstown, Ohio and
established a settlement fund of $2.2 million. He was lead counsel in In re S. Ohio
Corr. Facility, 173 F.R.D. 205 (S.D. Ohio 1997), a class action by the inmate victims of the 1993 Lucasville prison riot which guaranteed single celling and created
a $4.2 million settlement fund. Mr. Gerhardstein also served as one of the class
counsel for the seriously mentally ill inmates in Ohio. That case led to expenditures of $65 million for reform of the prison mental health system. See Dunn v.
Voinovich, No. C1-93-0166 (S.D. Ohio 1995).
Mr. Gerhardstein founded and serves as President of the Board of the Prison
Reform Advocacy Center (PRAC), a non-profit public interest legal center promoting criminal justice reform, safe correctional settings, empowerment of women and
rehabilitation as an alternative to extended prison terms. He serves on the Editorial Board of the Correctional Law Reporter and has contributed several articles to
that journal on prisoner litigation and law. Mr. Gerhardstein is a frequent
speaker on civil rights and prison reform.
1. Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996)
(codified at 11 U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28 U.S.C. §§ 1346, 1915,
1915A; 42 U.S.C. §§ 1997-1997h).

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titioners to sue for substantial damages.2 This article should
help a prisoner-plaintiff’s attorneys do just that. From case selection through verdict, I provide guidance on the practical and
legal aspects of prisoner representation.
In the first part of this article we will address case and client selection. We will then work backward from our desired
verdict. Litigators must stay focused on the result that they
want. They must know what question the jury will be answering and go about advocating for the right answer. Therefore,
this article is largely organized backward from the verdict, similar to the manner in which you would prepare for trial.
II. Trying Prisoner Cases to Win
A. Client Selection, Case Selection and Discovery
Jurors hate prisoners. Most are shocked to learn that prisoners have the right to sue corrections officials and even more
shocked to learn that they will be asked to award damages to
those prisoners. If the prisoner has a long record of assaults
while in prison, has thrown human waste at officers or has attempted escapes, and if counsel cannot keep these prior “bad
acts” out of evidence, this prisoner may be a challenging plaintiff in a civil rights case. But, even the most obnoxious prisoner
can be a winning plaintiff if the case is presented well and the
need for professionalism and law abiding conduct by the defendants is thoroughly established.
In order for the prisoner-plaintiff’s attorney to accurately
assess the prospects for success thorough fact investigation and
research should precede a formal retainer. A simple checklist of
prefiling activities that should be undertaken in most cases
includes:

2. See infra Part II.K.

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New Prisoner Case Checklist
Name:
Current Prison:
Date of event:

Number:
Former Prison:
Statute of Limit Deadline:

To Do
—— 1.
—— 2.
—— 3.
—— 4.
—— 5.
—— 6.

—— 7.
—— 8.
—— 9.
—— 10.

—— 11.
—— 12.
—— 13.
—— 14.
—— 15.
—— 16.
—— 17.

Send the client a questionnaire.
Obtain a medical release from the client.
Request medical records from the prison(s) and any outside
hospital(s).
Obtain public portions of the client and witness (discipline) file from
the prison(s).
Interview the client by telephone, for a brief assessment of the case.
Obtain all paperwork that the client has related to:
a.
Grievances;
b.
Kites;
c.
Medical forms; and
d.
Computer information.
Determine if the client has any outstanding restitution orders or
unpaid filing fees etc., that might be deducted from a verdict3 and
advise the client.
Interview family members by telephone (someone who knows the
facts and can testify to humanize the client).
Interview any outside witnesses by telephone.
Grievances:
a.
Was one filed?
b.
Appealed?
c.
Get the paper trail.
Send an investigation only retainer.
Write to prisoner witnesses and notify them that you will be
interviewing them (if you request a written version of events will it
be discoverable or remain work product?).
Call the state patrol trooper (if the incident was investigated) and
chat.
Obtain the state patrol file (after the criminal investigation is over)
and request photos.
Request personnel records on all personnel involved in the incident.
Visit and interview the client, decide whether to accept the case and
sign a retainer.
If the prisoner is deceased an estate may need to be opened; some
probate courts will authorize subpoenas for prisoner files and other
records that could assist with an investigation of a potential claim.

All issues arising under the PLRA must be identified and
addressed before the case can move forward.4 The PLRA is
mainly codified at 42 U.S.C. § 1997e and 28 U.S.C. § 1915, but
additional requirements are codified at 18 U.S.C. § 3626 and 28
3. See 18 U.S.C. § 3682 (1986).
4. In this section I will simply summarize the law since there are already several excellent and comprehensive materials available to help the practitioner with
compliance.

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U.S.C. § 1914. The PLRA was designed to reduce prisoner litigation and it has certainly been effective. Unfortunately,
among those cases dismissed under the PLRA many have been
meritorious.5
The requirement that a prisoner exhaust administrative
remedies, under § 1997e(a), has been the most daunting for
prisoner complaints since the passage of the PLRA.6 A prisoner
must fully exhaust all administrative remedies though the
prison’s grievance system before proceeding as a plaintiff in a
lawsuit.7 Typically, this requires securing a decision from the
chief inspector or the decision maker who hears the last administrative appeal.8
If a prisoner has three or more prior lawsuits dismissed as
“frivolous, malicious, or [for] fail[ure] to state a claim,” that
prisoner is not allowed to file another lawsuit or appeal a judgment in a civil action unless the prisoner “is under imminent
danger of serious physical injury.”9 The court, “notwithstanding any filing fee,”10 may dismiss the action or appeal if it is
“frivolous or malicious . . . fails to state a claim on which relief
can be granted” or if it “seeks monetary relief against a defendant who is immune from such relief.”11 A prisoner cannot
bring a claim for mental or emotional injury suffered while in
prison without first proving physical injury.12
There are also limitations on attorney fees.13 A portion of
the damage award must be used to pay the prisoner-plaintiff’s
5. See, e.g., Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003) (holding that the
prisoner failed to exhaust his administrative remedies under the PLRA by failing
to name the observing officers in the grievance).
6. See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1628
(2003).
7. See, e.g., MASS. GEN. LAWS ch. 127, § 38E (2002); OHIO REV. CODE ANN.
§ 2969.26 (Anderson 2004); TENN. CODE ANN. § 41-21-817 (2004); TEX. GOV’T CODE
ANN. § 501.008 (Vernon 2004); ARIZ. DEP’T OF CORR., DEPARTMENT ORDER MANUAL,
DEPARTMENT ORDER 802 (2000) (detailing the procedures involved in Arizona’s “Inmate Grievance System”) [hereinafter ORDER MANUAL]; see also supra note 5.
8. But see Boyd v. Corr. Corp. of Am., 2004 FED App. 0299P (6th Cir.) (failure
of prison administrator to timely respond to grievance accepted as compliance with
exhaustion requirement).
9. 28 U.S.C. § 1915(g) (2004).
10. Id. § 1915(e)(2).
11. Id. § 1915(e)(2)(B)(i)-(iii).
12. 42 U.S.C. § 1997e(e) (2004).
13. See infra Part II.L.

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attorney fees.14 The damage award is also subject to any debt or
restitution payments that the prisoner might owe.15 Additionally, if the judgment is against the prisoner, the court can require that prisoner to pay costs, regardless of his or her
financial status.16
In addition to the PLRA, plaintiff’s counsel must also understand and properly apply prisoner rights law and basic
§ 1983 principles.17 Defendants must be identified based on investigation and legal research. Limit the number of defendants. Each defendant adds a greater burden with no increase in
compensatory damages.18 Similarly, claims should be reduced
to those which are necessary. Redundant claims, with confusing, overlapping jury instructions covering the same conduct
can backfire. At the same time a plaintiff does not want an
“empty chair” across the well—a clearly culpable, missing defendant. Make sure there is solid evidence against each defendant supporting each claim and dismiss any defendants that do
not meet this test.
A case plan should be drafted that sets out the necessary
discovery. Depositions should be pursued with a clear idea of
the theory of the case. As set out below, much of the trial presentation involves testimony from prison officials.19 The deposition transcripts are crucial tools in maintaining witness control.
Now we are ready to plan the trial itself.
B. The Final Pretrial Conference
The final pretrial conference typically results in the approval of the final pretrial statement which has been prepared
jointly by the parties. In one portion the plaintiff is invited to
provide a short statement of the claim. This statement is often
read to the jury during the voir dire and again as part of the
jury instructions. The statement should use short, simple
sentences and convey the core of the case.
14. 42 U.S.C. § 1997e(d)(2).
15. See 18. U.S.C. § 3626 (2004).
16. 28 U.S.C. § 1915(f)(2).
17. While this article focuses on trial practice and not substantive law, a clear
understanding of prisoners’ rights law and of § 1983 is essential to success.
18. See Weeks v. Chaboudy, 984 F.2d 185, 189 (6th Cir. 1993) (liability for
compensatory damages is joint and several in a § 1983 prisoner case).
19. See infra Part II.H.

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The joint final pretrial statement also lists the uncontroverted facts. These are often read to the jury as stipulations
and deserve careful attention. They offer the prisoner-plaintiff
an opportunity to set out facts which will prepare the jury to
focus on the real issues of the case. Remember, jurors are skeptical of prisoner claims. It is very helpful to learn that on February 24th the prisoner was escorted by the defendant
correctional officers, the prisoner was in restraints, force was
used on the prisoner and the prisoner suffered a broken arm.
Such stipulations reassure the jury that the defendants did
cause harm to the plaintiff and focus their attention on the need
for and degree of force. Stipulations eliminate any notion that
the prisoner fabricated the entire story.
The final pretrial conference should be used to clarify:
• The level of inquiry that will be permitted at voire dire.
• When drafts of the jury instructions and the verdict form will
be due from the parties.
• The schedule that will be set for motions in limine.
• The security provisions that will be needed for prisoner
witnesses.
• What, if any, “cross-examination” will the court permit if
plaintiff calls correction employee witnesses as hostile witnesses during the plaintiff’s case in chief.
• The questioning that the court will permit regarding the prisoner-plaintiff’s criminal background.

C. The Verdict Form
In a jury trial everything comes down to how the jury completes the verdict form. Counsel therefore must think backwards from that point. All decisions, from defendant selection
to witness order, should reflect a course of action most likely to
result in a successful verdict. Questions on the verdict form
should be simple and undiluted with legal baggage.20 Save all
legalese for the jury instructions.
Plaintiffs must have their burden of proof described with
utmost simplicity, so that a juror who believes that a guard beat
20. For example ask, “Did the defendant Ashcroft use excessive force on the
plaintiff?” not “Did the plaintiff prove by a preponderance of the evidence that the
defendant Ashcroft engaged in acts constituting cruel and unusual punishment
under the Eighth Amendment of the United States Constitution?”

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the prisoner-plaintiff can see immediately what must be done
on the verdict form. There is no need, or obligation, to repeat all
of the definitions, cautions and barriers that the juror waded
through in the jury instructions. Plaintiff’s counsel should argue that any such attempt is necessarily incomplete, and gives
undue weight to the partial instructions the defendants seek to
repeat on the jury form. Jurors need punch lines. Simple questions that sum up the critical points for determining liability
against each defendant. As you can see, advocating for a simple
verdict form is extremely important.
D. Jury Instructions
Plaintiffs should focus on the critical civil rights issues in
the case and make sure that the jury instructions on those issues can be applied to the proof that will be presented to support a verdict.
Jury Instructions For A Prisoner Case
All Persons Equal Before The Law
The fact that the plaintiff is a prisoner and that the defendant is a
state official must not enter into or affect your verdict. “This case
should be considered and decided by you as a dispute between
persons of equal standing in the community, of equal worth, and
holding the same or similar stations in life. All persons[, including prisoners and state officials,] stand equal before the law and
are to be treated as equals”21 in a court of justice.
Credibility of Witnesses
I have said that you must consider all of the evidence. This
does not mean, however, that you must accept all of the evidence
as true or accurate.
“You, as jurors, are the sole and exclusive judges of the credibility
[or ‘believability’] of each of the witnesses . . . and only you determine the . . . weight [to be given to each witness’ testimony].”22 In
weighing the testimony of a witness you should consider the witness’ relationship to the plaintiff or to the defendant; the witness’
interest, if any, in the outcome of the case; his or her manner of
testifying; the witness’ opportunity to observe or acquire knowledge concerning the facts about which he or she testified; the wit21. KEVIN O’MALLEY
§ 103.11 (5th ed. 2000).
22. Id. at § 15.01.

ET AL.,

FEDERAL JURY PRACTICE

AND

INSTRUCTIONS CIVIL

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ness’ candor, fairness, and intelligence; and the extent to which
he or she has been supported or contradicted by other credible
evidence. You may, in short, accept or reject the testimony of any
witness in whole or in part.23
The fact that a witness comes before you as a correctional official
should not affect the way you judge his or her credibility. Such
testimony does not deserve either greater or lesser believability
simply because of the official status of a witness. Similarly, the
fact that a witness is or was a prisoner does not automatically
suggest that less weight be given to that testimony. Whether or
not you believe a witness must be determined from his or her testimony, not his or her occupation or status outside the courtroom.
You should form your own conclusions as to whether or not a witness is believable.
Also, the weight of the evidence is not necessarily determined by
the number of witnesses testifying as to the existence or nonexistence of any fact. You may find that the testimony of a smaller
number of witnesses as to any fact is more credible than the testimony of a larger number of witnesses to the contrary.24
42 U.S.C. § 1983
The plaintiff has asserted his claims under a federal law, 42
U.S.C. § 1983. “Section 1983 . . . provides that a person may seek
relief in this court by way of damages against any persons or persons who, under color of any state law or custom, subjects such
person to the deprivation of any rights, privileges, or immunities
secured or protected by the Constitution or laws of the United
States.”25
In this case the defendant acted under color of state law.
Obligation to Protect Prisoners26
State actors are obligated to protect those whom the state government is punishing by incarceration from know risks of serious
physical harm. A prisoner must rely on prison authorities for
such protection because he is not free to protect himself from all
potential harms. Failure to protect a prisoner from such risks
constitutes cruel and unusual punishment and is proscribed by
the Eight Amendment.
23.
24.
25.
26.

See id.
Id. at § 14.16.
Id. at § 165.10.
See generally O’MALLEY

ET AL.,

supra note 20, at § 166.20.

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Failure to Protect27
The Eighth Amendment to the United States Constitution imposes upon prison officials an affirmative obligation to protect
prisoners from being assaulted by other prisoners. A prison official’s deliberate indifference to the safety of a prison inmate constitutes cruel and unusual punishment.
Deliberate indifference requires something more than mere negligence. It is a recklessness standard. That is, the plaintiff need
not “show that the [prison] official acted or failed to act believing
that harm actually would befall an inmate; it is sufficient that the
official acted or failed to act despite the official’s knowledge of a
substantial risk of harm.”28
To find the defendant liable in this case, you must first find that
the defendant knew of a substantial risk of harm to Plaintiff’s
health or safety and disregarded that risk. You may infer that
the risk was known if you find that the risk was obvious.
Second, to find a defendant liable, you must find that given all of
the facts known to the defendant, that the defendant’s conduct
was not a reasonable response to the risk of harm.
A prison official who knows that a prisoner is at risk of harm from
another prisoner but does not take reasonable steps to guarantee
the safety of that prisoner will thus be held liable to the prisoner
even though the official did not actually strike blows or otherwise
commit acts against the prisoner.
Excessive Force Defined29
The Eighth Amendment to the United States Constitution provides that “cruel and unusual punishments”30 shall not be
inflicted.
Plaintiff claims that he was subjected to excessive force or cruel
and unusual punishment while he was incarcerated at [prison].
The Eighth Amendment to the United States Constitution prohibits the infliction of “cruel and unusual punishments”31 upon
prisoners.
To prevail on an excessive force claim, plaintiff must prove by a
preponderance of the evidence that one or all defendants applied
force to him maliciously and sadistically for the purpose of causing harm rather than in a good faith effort to maintain or restore
27.
28.
29.
30.
31.

See generally id. at § 166.
Id.
See generally id. at § 166.23.
U.S. CONST. amend. VIII.
Id.

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discipline. Plaintiff need not show that he suffered a significant
physical or mental injury for you to find he suffered cruel and unusual punishment.
You should consider the following factors in making this
determination:
a. The need for the application of force;
b. The relationship between the need and amount of force
used;
c. The extent of the threat to the safety of staff and prisoners
as reasonable perceived by the responsible officials on the
basis of facts known to them; and
d. Any efforts made to limit the amount of force.

E. Jury Selection
Jurors are taxpayers, voters, victims of crime and often
next of kin or friends of law enforcement officers. Jurors are
challenged by a legal system that would award a prisoner damages when the victim of the prisoner’s crime may never be compensated for the brutality of that prisoner. Jurors likely have
bought into the “tough-on-crime” agenda. Equally important,
most jurors are white and far too many prisoners are black.32
Because of these realities, jury selection is the most important
aspect of the trial.
Plaintiff’s counsel must seek an opportunity to question jurors. No amount of canned questions posed by the court can
replace the role of counsel in exposing bias; jury panel members
always assure the court that they will be fair. Counsel-directed
voir dire can be effective at exposing bias, establishing challenges for cause33 and identifying jurors that are actually willing to be fair to the plaintiff. The prisoner’s crimes that are
going to be revealed during trial should be named during the
voir dire. Prospective jurors should be asked questions that will
expose those who harbor prejudices too deep to overcome and
reveal those jurors who are truly open to following the instructions of the court. What follows is an outline of a voir dire in
32. See DENNIS SCHRANTZ & JERRY MCELROY, REDUCING RACIAL DISPARITY IN
CRIMINAL JUSTICE SYSTEM: A MANUAL FOR PRACTITIONERS AND POLICYMAKERS
(Jenni Gains Borough & Marc Mauer eds., 2000), available at http://
www.sentencingproject.org/pubs-08.cfm.
33. The author has been involved in jury selections that have resulted in onethird of the panel being excused for cause.
THE

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which the plaintiff Jane Doe, a transsexual, was attacked by
another prisoner. The defendants, officials in a protective custody unit, were sued for failure to protect34:
Voir Dire For A Prisoner Case
Law Enforcement
Attorney: I see that several of you have been in law enforcement jobs or
have relatives who are police officers, prison guards or prison
staff, probation or parole officers.
Q: Mr. X, you have worked as a teacher for Ohio Department of
Youth Services (DYS)—you are aware of instances when
managing prisoners can be difficult, correct?
Q: You work with a security staff, who keep order?
Q: Security staff must protect civilian staff like teachers?
Q: Security staff must also protect prisoners from other prisoners?
Q: Did you have any positive experiences with DYS prisoners?
Q: Did you have any negative experiences?
Q: You have had no prior experiences with Ms. Doe?
Q: Now, can you set that experience aside—approach this with
open mind?
Q: Here’s what I mean by that. The judge will instruct you that
all people are equal under the law. This means that no one
is assumed to be telling the truth just because he wears a
uniform or a badge. Can you set aside your tough experiences with convicts and follow that instruction? When you
hear facts from officers can you give their testimony no more
or no less weight simply because they are officers?
Victim of the Crime
Attorney: Many of you have also been the victim of a crime.
Q: Mr. X, tell us briefly what happened?
[Get the facts]
Q: Frightening?
Q: You felt violated?
Q: You probably remember those events often?
Q: Think about it when you’re in unfamiliar settings?
Q: It would be normal to do that; to still be angry about it.
Q: You still have feelings about it?
Q: The person who committed that crime was not Jane Doe?
Q: What I will ask you is not easy. Can you honestly set aside
that awful experience and listen to Jane Doe testify without
bringing that terrible episode to mind?
Convicts Can Sue

34. Doe v. Bowles, 254 F.3d 617 (6th Cir. 2001).

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Attorney: Members of the panel, in this case a former convict is suing
two prison staff members for failing to protect her. That is,
she claims that the defendants failed to protect her from an
assault by another prisoner. Does anyone have a problem; is
anyone uneasy with the idea that a convict can even do
this—come into court and make such accusations against her
jailers?
Q: Does it bother anyone that such cases can even be heard?
Q: Does anyone feel that it is a waste of your time to hear this
type of case?
Q: Now, if the judge tells you that Jane Doe has a right to be in
this court and a right to make these allegations, will you follow the law and serve on this case with an open mind?
Plaintiff Criminal Record
Attorney: I will also tell you that this former convict—Jane Doe—is not
just any convict. You will learn that she was serving time
from 1993 to 1997. She has been a free, employed citizen for
over four years. But, previously, she was serving time in
Ohio for felonious assault, misuse of a credit card, forgery,
and receiving stolen property. You will also learn that, in
1997, she served several months in Arizona for two counts of
forgery, and that she was on probation for fraud and theft in
Colorado in 1992. You will learn that she has used other
names—aliases—in the commission of some of these crimes.
Q: How many of you are troubled by that criminal record?
Q: That’s natural. Will that natural feeling of disgust make it
hard for you to accept that Jane Doe has a right to use the
courts to pursue these claims that her civil rights were violated?
Q: And what if you do believe that the defendants failed to protect Doe, will any disgust at ex-convict Doe for all of these
crimes keep you from following the law and ruling in her
favor? I mean, is this just too great a stretch for you?
Comfort with Different People
Attorney: If you had a choice of where you could work and live—assuming equal safety, income etc.,—and one choice was a community of people that shared your religion, lifestyle and values,
and the other choice had people who were law abiding but
they were different—people who did not share your religion,
lifestyle and values; so one community where people are
basically the same and the other community where people
are different.
Q: How many would choose to live and work in the community
where religion, lifestyle and values were shared?
[Show of hands]
Q: How many would choose to live and work in the community
where the members followed the law but where religion,
lifestyle and values were not shared?
[Show of hands]
Q: How many do not know?
[Show of hands]
Gender, Sexual Orientation and Perceptions

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Attorney: This case raises sensitive issues about gender, sexual orientation and perceptions. Some people believe that everyone is
born heterosexual and that people should not mess with
their sexual identity—these individuals would have personal
objections to those who do not live a standard heterosexual
lifestyle. Not judging, but many people base this view on
religious or other beliefs. We can do this at the sidebar if
necessary because I really want to respect your privacy on
sensitive matters, but I would like to start with the people in
the jury and ask you to rate yourself on a one to five scale.
One being accepting of any sex orientation; tolerant, no problem in interacting with folks who are gay, lesbian, bisexual
or transgendered (G/L/B/T). Five being that you really cannot accept people who claim not to be heterosexual or who do
not act heterosexual If you are a five that’s ok—do not feel
bad—this is what jury selection is about, trying to determine
if the facts in the case will push out of your comfort zone. So
one—accepting of any sexual orientation, no problems with a
person just because they are G/L/B/T, to five—really cannot
accept people who claim not to be heterosexual or who do not
act heterosexual.
Q: Juror X, you rated yourself as a five. If the law did not permit discrimination against people based on whether they
were G/L/B/T and you had to apply that law, as a juror would
that push you so far away from your own beliefs that you
could not follow the law?
Q: Is this too much of a stretch for anyone else?
Transsexual
Attorney: You will learn that Jane Doe was born a biological male but
had undergone a partial gender transformation from male to
female prior to her arrest. So Jane Doe is a transsexual—it’s
like being born into the wrong skin—physically one sex but
emotionally the other.
Q: Does anyone personally know a transsexual?
Q: Does anything about your experience with that transexual
make it hard for you to be fair and impartial?
Q: Has anyone seen a transexual portrayed in a play, movie or
show?
Q: Can you separate what you learned there?
Q: There is a CBS television show on Sunday Night—The Education of Max Bickford.35 One of the characters is a male
who underwent sex reassignment surgery to become a
female. The lead character has been friends with the
transsexual both before and after her gender reassignment
and has a positive relationship with her. Is anyone familiar
with the show?
Q: Is there anything about the way the transsexual character is
portrayed on that show that makes it hard for you to be fair
and impartial in this case?
35. The Education of Max Bickford (CBS 2001).

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Q: Jane Doe was in the protective custody unit at the prison
because she had some female characteristics—she was
female from the waste up and male from the waste down.
Does the fact that Doe was a transsexual when she was in
need of protection in prison—does that fact in and of itself—
make it hard for you to approach the case with an open
mind?
Q: Is this too weird?
Q: Too difficult to approach without overcoming some negative
feelings you may have against convicts or transsexuals? I
mean, this is a lot to absorb and we haven’t even told you
what the proof is!
G/L/B/T and Ex-offender Experience
Attorney: Does anyone know any people who are G/L/B/T?
Q: Is there anything about an experience with that person that
makes it hard to be fair in this case?
Q: Does anyone know any people who are ex-offenders, people
who have been incarcerated in prison?
Q: Anything about an experience with that person that makes it
hard to be fair in this case?
Conclusion
Attorney: Okay, there’s more. This is not just a swearing match
between a former convict and law enforcement officers. The
judge will instruct you that the Eighth Amendment to the
United States Constitution prevents prison staff from
inflicting cruel and unusual punishment on prisoners and
that it requires staff to protect prisoners. If you hear all of
the evidence and law in this case and decide based on the
evidence and law that the former convict should win and
that the prison staff members did fail to protect the prisoner
will you be open to awarding money damages to the prisoner
as compensation for her injuries?
Q: Or is that just too much? Money damages to a person who
committed so many crimes? Money damages to a person who
entered prison as a transsexual? Can you clear your mind
enough and accept as a jury the duty to be open to that
result? Or does that just push you too far? Please raise your
hands if I am asking too much of you
[Show of hands]

There is no script for an effective voir dire. The key is to
establish rapport with the jury and to make them respond honestly. Once a jury is empanelled the focus turns to the actual
testimony, telling the story effectively.
G. Trial Presentation: Tell an Honest Tale
i. Excessive Force
Each case has its own story and the presentation theme
must arise from that story. Some general comments are appro-

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priate based on the type of claim. In excessive force cases the
plaintiff must prove actions that are “malicious[ ] and sadistic[.]”36 In reality the officer probably acts appropriately 99% of
the time. On the day in question, the officer “went-off,”
“snapped,” or otherwise acted out. Obviously a pattern of similar conduct will help to tell the story, but even a single incident
can result in a verdict if the story is relayed in a manner that
answers all of the obvious questions. What triggered the incident? What portion of the force was excessive? Does the medical proof confirm the story? Was the matter supposed to be
videotaped but was not? Was the officer disciplined?
A typical excessive force case involves an incident provoked
by the prisoner. For example, the prisoner is using abusive language toward the escort officer who decides to retaliate with
force rather than to simply write a disciplinary ticket. Officers
may feel that the disciplinary process is too slow or too lenient
and they may occasionally “supplement” formal discipline with
an “attitude adjustment” for a prisoner who acts out against the
officer. In such a case the prisoner should testify fully. He
should agree that he was indeed speaking disrespectfully and
that he deserved a ticket and discipline for his act. He was in
restraints and did not “head-butt” or use force. The video and/
or medical reports do not support the story of the officer. The
point is not to pretend that all prisoners are angels and all officers are evil. The plaintiff need only prove that at that time
and place excessive force was used. That burden is most easily
met if accurate stories that reflect the true prison environment
are forth for the jury.
ii.

Medical Claims and Failure to Protect

Allegations that defendants denied a prisoner adequate
medical care or failed to protect the prisoner do not require
proof of evil, sadistic or malicious conduct. Rather, plaintiff will
prevail if the defendant was deliberately indifferent to the serious medical37 or security38 needs of the plaintiff. The legal standard is lower, but as a practical matter these cases are more
36. Whitley v. Albers, 475 U.S. 312, 320 (1986) (quoting Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir. 1973)).
37. See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
38. See Farmer v. Brennan, 511 U.S. 825, 830-32 (1970).

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difficult to win. The defendant typically does not cause the
harm, but rather just does not do his job well enough. The defendant may be an overworked doctor; a staff member supervising an overcrowded block; or an onlooker who saw the violation
but failed to act quickly. The jury must not be promised evil.
The presentation must anticipate the instruction39—focusing on
the seriousness of the risk; the obviousness of the risk; the alternative courses of action that were open; the decision to proceed with a course of action that ended with predictable injury.
The defendant is a trained professional, when he acts causing
injury in the face of an obvious risk that makes him liable.
In many failure to protect cases the defendant argues he
had no knowledge of the risk of harm. Therefore, the focus at
trial is to prove the obviousness of the risk.40 However, when
the defendant admits knowledge of the risk the focus at trial is
on the response by that defendant. Here you may be able to
demonstrate that the actions taken actually increased the risk
of harm.
In deliberate indifference cases it is often helpful to have
expert testimony. A classification expert can reassure the jury
that housing an assaultive prisoner with the plaintiff violates
all reasonable standards. A medical expert can similarly explain that the defendant acted beyond all reasonable boundaries for the delivery of medical care.
H. Witness Order, Topics
i. Prison 101
The walls that keep prisoners in, keep others out. Prison
for most people is a foreign place, known only from various media presentations. Prisons appear to be dark structures where
prisoners are expected to fend for themselves. Most jurors expect that violence is common and deprivations routine. Jurors
need to learn from corrections witnesses that prisons are expected to be safe; that staff is professional and that policies, procedures and routines govern all activities which are recorded on
contemporaneous logs and reports and, at times, on video. Only
39. See generally O’MALLEY ET AL., supra note 20, at § 166; see also supra note
19 and accompanying text.
40. See Farmer v. Brennan, 511 U.S. 825, 843 n.8 (1994).

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by learning the norm may jurors appreciate the deviation related to the incident portrayed in the trial.
The first witness, therefore, is typically a relatively neutral
corrections employee whose questions and answers result in a
“Prison 101” course for the jury. Terms, procedures, equipment,
post orders and the like will all be quickly explained and then
used when framing the important facts leading up to the violation of the prisoners rights. It is often effective to show a video
of the scene and have the first witness narrate that video.
ii.

Calling Defendants as Hostile Witnesses

It may also be very effective to call the defendant during
the plaintiff’s case, as if on cross-examination41. This examination should be carefully scripted and thoroughly anchored in the
deposition transcript. It should commence with a review of the
defendant’s conduct as it should have occurred based on post
orders or other policies and it should move to challenge the defendant on the core facts of the case. At the final pretrial conference ask the judge to require that direct examination be
delayed until the defendant’s case, thus allowing your story into
evidence without interruption.
iii.

Plaintiff and Other Prisoner Witnesses

Counsel should aggressively argue to present the prisonerplaintiff live, in court. The plaintiff should also be present during the entire trial, including the voir dire. Some practitioners
seek to have the client dressed in street clothes, provided at the
courthouse and worn at all times the prisoner is in the presence
of the jury. It is enough that the client is in clean clothes that
fit appropriately. If some restraints are required a black box is
less noticeable than handcuffs.42 If at all possible the client
41. FED. R. EVID. 611(c) permits the court to authorize the examination of a
hostile witness by leading questions.
42. Several cases have addressed the issue of restraining the civil prisonerplaintiff. The courts look first to whether the prisoner-plaintiff’s history deems
restraint necessary and, if so, if the restraints would be unduly prejudicial given
the nature of the case or the role credibility would play in its outcome. The decision must be one made by the court; it is impermissible for the court to delegate its
authority to the security personnel or to the court marshals. If restraints are
found necessary the court should still use the least restrictive restraints and take
steps to further minimize any prejudicial effect, including instructions to the jury.

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should be permitted to attend the trial without restraints. This
should be resolved at the final pretrial conference. Similarly, at
the final pretrial conference the court should direct that the
prisoner be housed close enough to the courthouse to avoid exhaustion during trial.
Testimony from the plaintiff should flow easily. This is
worth as many pretrial trips to the prison as it takes to get it
right. Give the client his deposition testimony and all of the
statements he has given during any investigations. Practice
cross-examination. The story should not change but the prisoner should relate the story in terms the jury can follow and
free of all expletives. If the criminal record will come into evidence it, and any inappropriate conduct by the prisoner on the
day in question, should all be brought out on direct, demonstrating that the plaintiff has nothing to hide. Some prisoners
claim to remember the sequence of each blow and kick in excessive force cases. Even if true, such testimony is rarely credible
to juries. It is better practice to simply have the prisoner state,
for example, that he was repeatedly kicked and punched. Injuries should not be overstated but it is important to present injury testimony so that the jury has some sense of what the
beating or other harm was like. If the juror can visualize the
events, the prospects for damages for pain, suffering and
mental anguish are more likely.
Use as few prisoner witnesses as possible. Prisoner witnesses may be subject to some level of cross-examination about
their crimes, under the Federal Rules of Evidence (Federal
Rules),43 which can be a distraction to the jury. Many prisoner
witnesses also have discipline records that may be admissible
under the Federal Rules.44 It is simply more persuasive to
prove the case primarily through prison records, the absence of
expected prison records and corrections officials.
Nonetheless, a prisoner witness often is needed to offer crucial facts. Under the PLRA a federal judge may permit prisoner
See Illinois v. Allen, 397 U.S. 337 (1970); see also Davidson v. Riley, 44 F.3d 1118,
122-23 (2d Cir. 1995); Woods v. Thieret, 5 F.3d 244, 247-48 (7th Cir. 1993); Lemon
v. Skidmore, 985 F.2d 354, 358 (7th Cir. 1993); Holloway v. Alexander, 957 F.2d.
529, 530 (8th Cir. 1992).
43. See FED. R. EVID. 609.
44. See FED. R. EVID. 404(b); see also infra Part II.I.ii.

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testimony to be presented by trial deposition.45 Many prisons
have teleconference equipment available for their medical specialty consultations. That same equipment may be available for
real-time trial testimony. If the prisoner testifies live the court
should set the ground rules. Counsel should make sure that the
prisoner is dressed in clean, pressed prison blues and not in
some baggy coveralls. Male witnesses should be permitted to
shave and all witnesses should be permitted a timely shower.
Transport should be set so as not to have the prisoner awake
from 2:00 a.m. for testimony at 3:00 p.m. These matters should
be discussed at the final pretrial conference and, if necessary,
addressed in the writ of habeas corpus ad testificandum. Prisoner testimony should be short and focused directly on the matter for which their testimony is needed. In a beating case,
testimony from a prisoner eye witness may be as brief as ten
minutes. One technique for enhancing the credibility of prisoner witnesses is to use witnesses that were relied upon by the
state in disciplinary proceedings and, if possible, make this fact
known to the jury.
I. Admissibility of a Prisoner’s Criminal Record and Other
Bad Acts
When the plaintiff or witness is a prisoner most judges will
allow the criminal conviction leading to incarceration to be admitted into evidence. The best practice is simply to get a stipulation or ruling on exactly what will be permitted. Typically the
type of crime and the sentence imposed are admitted. Permitting the defendant to explore the details of the crime would be
very prejudicial and is not generally permitted.
i. Criminal Record of the Prisoner-Plaintiff
The use of the criminal record for impeachment of a witness, other than the accused, is subject to a weighing of the probative value versus its prejudicial effect.46 Conduct more than
45. See 42 U.S.C. §1997e (f)(1) (2004).
46. See FED. R. EVID. 609. After the 1990 amendment to Rule 609 evidence
that a witness, other than the accused, has been convicted of a crime shall be subject to FED. R. EVID. 403. Prior to the 1990 amendment, prejudice to the defendant
was the only consideration and a civil plaintiff’s felony record was compelled.
Compare Earl v. Denny’s, Inc., No. 01-C5182, 2002 U.S. Dist. LEXIS 24066, 2002

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ten years old is rarely admitted for impeachment purposes, except for under extraordinary circumstances.47 Even if within
the ten period, the plaintiff’s criminal record cannot be used for
impeachment purposes if the potential for prejudice substantially outweighs its probative value under Federal Rule 403.48
For example, in Lewis v. Velez, the court excluded the prisonerplaintiff’s prior assault conviction when the present claim was
one of excessive force.49 The court found that the assault conviction did not relate to the elements of the excessive force claim
and that admitting it was too prejudicial.50 However, if the
criminal record does not result in unfair prejudice, under Federal Rule 609(a)(1),51 and falls within the narrow definition of
those convictions listed under Federal Rule 609(a)(2),52 it can be
admitted for purposes of assessing credibility. In Young v. Calhoun, the court admitted the fact that the prisoner-plaintiff was
a felon as well as the amount of time imposed through sentence.53 The nature of the conviction and the details of the
crime were not admitted.54
Even if prior criminal convictions are inadmissible for impeachment they can still become admissible evidence “if [they
are] relevant to a material issue and if [their] probative value
WL 31819021 (N.D. Ill. Dec. 13, 2002), with Green v. Bock Laundry Mach. Co., 490
U.S. 504 (1989); see generally Donald v. Wilson, 847 F.2d 1191 (6th Cir. 1988).
47. See Zinman v. Black & Decker, Inc., 983 F.2d 431, 434 (2d Cir. 1993)
(quoting S. REP. NO. 1277 (1974), reprinted in 1974 U.S.C.C.A.N. 7051, 7062). The
ten year period runs either from the date of conviction or the date of release from
confinement, whichever is later. FED. R. EVID. 609(b).
48. See FED. R. EVID. 609(a)(1); see also Miller v. Hoffman, No. 97-7987, 1999
U.S. Dist. LEXIS 9276, 1999 WL 415402 (E.D. Penn. June 22, 1999) (specifically
defining the balancing test of Federal Rule 403 in the context of Federal Rule 609).
49. Lewis v. Velez, 149 F.R.D. 474, 483 (S.D.N.Y. 1993).
50. Id.; see Essick v. Debruyn, No. 3: 94-CV-804RP, 1995 U.S. Dist. LEXIS
18458, 1995 WL 729313 (N.D. Ind. Nov. 22, 1995).
51. “[F]our factors when balancing probative weight and prejudicial effect
under 609(a)(1): [include] 1) the nature (i.e., impeachment value) of the prior conviction; 2) the age of the conviction; 3) the importance of credibility to the underlying claim; and 4) the potential for prejudice from admitting the convictions.”
Miller, 1999 U.S. Dist. LEXIS 9276, at *6, 1999 WL 415402, at *2; Daniels v.
Loizzo, 986 F. Supp. 245, 250 (S.D.N.Y. 1997).
52. This list is limited to those crimes “involv[ing] dishonesty or false statement,” and is interpreted narrowly. FED. R. EVID. 609(a)(2); see United States v.
Hayes, 553 F.2d 824, 827 (2d Cir. 1977).
53. Young v. Calhoun, No. 85 CIV 7584 (SWK), 1995 U.S. Dist. LEXIS 4555,
at *12, 1995 WL 169020, at * 4 (S.D.N.Y. Apr. 10, 1995).
54. Id.

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outweighs the possibility of unfair prejudice,” per Federal Rules
401 and 403.55 Under this standard, courts have allowed facts
beyond that of the charge, the date and the conviction to enter
the record. Although defendants cannot use these facts to shift
the focus of the trial, they can use some of the facts surrounding
the criminal record, under Federal Rule 401, in so much as they
are relevant to elements of the claim, such as defendant’s state
of mind.56 The specific details of the crime should not be admitted as they are minimally relevant, especially in a cumulative
presentation because it will shift the focus of the civil trial to
that of re-trying the criminal case.57
ii. Prior Bad Acts of the Prisoner-Plaintiff
In Huddleston v. United States, the Supreme Court set out
a test for the admissibility of prior bad acts, such as a prisoner’s
disciplinary record.58 While evidence “of crimes, wrongs, or acts
[are] not admissible to prove the character . . . ”59 or criminal
propensity of a prisoner, they may be admissible to prove motive, intent or plan under Federal Rule 404(b). However, in order to be admissible for these purposes the evidence must be
55. Gora v. Costa, 971 F.2d 1325, 1331 (7th Cir. 1995).
56. Geitz v. Lindsey, 893 F.2d 148, 151 (7th Cir. 1990) (the names and ages of
the victims of a sexual assault and the physical evidence found at the crime scene
was allowed to show the defendants’ state of mind when using a gun to prevent
plaintiff’s escape from the police station).
57. Walker v. Mulvihill, No. 94-1508, 1996 U.S. App. LEXIS 14397, at *8-10,
1996 WL 200288, at *2-4 (6th Cir. Apr. 24, 1996) (admitting repetition of the hysteria of the crime victim by four witnesses—at least one of which was not witness to
the arrest—a detailed account by the victim herself, an admission by the prisonerplaintiff of his crime and repeated details of the victim and the crime by the defense council constituted reversible error).
58. 485 U.S. 681 (1988). The Court found,
that the protection against unfair prejudice emanates . . . from four . . .
sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule
402—as enforced through Rule 104(b); third, from the assessment the trial
court must make under Rule 403 to determine whether the probative value
of the similar acts evidence is substantially outweighed by its potential for
unfair prejudice; and fourth, from Federal Rule of Evidence 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it
was admitted.
Id. at 691-92 (citations omitted).
59. FED. R. EVID. 404(b).

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relevant to the factual inquiry in the case.60 This applies to a
prisoner-plaintiff’s disciplinary records and criminal records.61
There is another relevance inquiry required by Huddleston
that applies to a prisoner’s disciplinary records in particular.
This is the requirement, under Federal Rule 104(b), that a jury
can “reasonably conclude the act occurred and that the [prisoner] was the actor.”62 This is the preponderance of the evidence standard,63 and it allows for the admission of such
evidence as prisoner disciplinary records or rule infraction
board (RIB) files.64 This evidentiary standard means that the
“government must at least provide some evidence that the [prisoner] committed the prior bad act.”65 Prior to admission, the
evidence should be subject to a balancing test, weighing its probative value against its potential prejudice to the prisoner;66 the
strength of the evidence is also considered in the balancing
test.67 Once the evidence is admitted it must be accompanied by
a limiting instruction.68
The Seventh Circuit, in Young v. Rabideau, upheld as admissible general questions about a prisoner’s past discipline in
a § 1983 excessive force claim where the past discipline was
probative of the plaintiff’s intent.69 In that case the plaintiff
testified that he pointed a finger in the guard’s face by accident.70 The defense argued that this action was not an accident,
60. See FED. R. EVID. 401; see also Eng v. Scully, 146 F.R.D. 74, 77-78
(S.D.N.Y. 1993) (a fact of consequence or relevance was the amount of force applied; plaintiff’s intent or motive will not aid in this inquiry); Lombardo v. Stone,
No. 99 Civ. 4603 (SAS), 2002 U.S. Dist. LEXIS 1267, 2002 WL 113913 (S.D.N.Y.
Jan. 29, 2002) (prior assaults were excluded because offered to show propensity
and the defendants were unaware of the prior assaults at the time of the incident,
so they inadmissible to show state of mind; the recent assault on an aide was admissible because it went to defendants’ state of mind and provided an explanation
for their response).
61. Scully, 146 F.R.D. at 77-78.
62. 485 U.S. at 689.
63. United States v. Ramirez, 894 F.2d 565, 569 (2d Cir. 1990).
64. Id.
65. United States v. Gonzalez, 936 F.2d 184, 189-90 (5th Cir. 1991).
66. 485 U.S. at 691-92; see also FED. R. EVID. 403.
67. 485 U.S. at 689 n.6.
68. Id. at 692; Loizzo, 986 F. Supp. 245, 248 (S.D.N.Y 1997) (admitting bond
warrants but not the crimes for which they were issued).
69. 821 F.2d 373, 379 (7th Cir. 1987).
70. Id. at 377.

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but rather that his actions were intended to provoke the officer
and to start a fight.71
The Seventh Circuit established a four-part test for the admissibility of such prior misconduct:
[A]dmission of evidence of prior or subsequent acts will be approved if (1) the evidence is directed toward establishing a matter
in issue other than the defendant’s propensity to commit the
crime charged, (2) the evidence shows that the other act is similar
enough and close enough in time to be relevant to the matter in
issue . . . , (3) the evidence is clear and convincing, and (4) the
probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice.72

The court found that “admission of past misconduct is proper
when presented in rebuttal to [the prisoner-plaintiff’s] main defense that he did not intend to pole the prison guard in the face
. . . .”73 Having found that the evidence established plaintiff’s
intent, a matter in issue other than propensity to commit the
act, the court also found that the “record clearly and convincingly shows that his other actions were similar enough and
close enough in time to be relevant to the matter in issue.”74
The court then determined that because the evidence was limited to general questions about the plaintiff’s disciplinary record
“the danger of unfair prejudice was minimized and the probative value of the evidence dominated.”75
Federal Rule 608(b) prohibits the introduction of extrinsic
evidence of specific instances of conduct to attack the credibility
of a witness, except for criminal convictions. Therefore, counsel
can ask questions about whether a particular instance occurred,
if the instance goes to the truthfulness or untruthfulness of the
witness, but cannot introduce any evidence surrounding that
71. Id. at 379.
72. Id. at 378 (quoting United States v. Shackleford, 738 F.2d 776, 779 (7th
Cir. 1984)).
73. Id. at 379.
74. 821 F.2d at 381.
75. Id.; see Hynes v. Coughlin, 79 F.3d 285 (2d Cir. 1996) (where defendants
were unaware of the prison record it was inadmissible); see also United States v.
Bunch, No. 91-6309, 1993 LEXIS , 1993 WL 5933, at *2 (6th Cir. Jan. 13, 1993)
(affirming decision not to admit prior acts); Harris v. Davis, 874 F.2d 461, 465 (7th
Cir. 1989) (discipline record inadmissible to impeach credibility); Lataille v. Ponte,
754 F.2d 33, 37 (1st Cir. 1985).

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incident.76 Federal Rule 608(b) may keep the disciplinary file
out of the record, but the defendant may still be able to inquire
into plaintiff’s conduct for impeachment purposes.77
J. Admitting a Prison’s Internal Investigation into Evidence
The plaintiff’s presentation will be even more persuasive if
investigations of the incident that are favorable to the prisonerplaintiff can be introduced into evidence. A use of force committee or other internal investigation may actually contain information and findings that are helpful to the prisoner-plaintiff in
his civil rights case. Objections to prison reports will usually be
on the basis of Federal Rule 801, the hearsay rule, as the reports will contain statements from officers, employees or prisoners that are not present to testify.78 However, there are a
number of exceptions under Federal Rule 803 that are applicable to prison reports or investigations which can be cited to support the admissibility of such reports.
Federal Rule 803(6) contains a “[r]ecord of regularly conducted activity”79 or a business records exception and Federal
Rule 803(8) contains a public records exception to the hearsay
rule.80 The documents that fall under these exceptions have
been defined quite broadly.81 It is important to note, however,
that the business records exception requires that a person with
knowledge transmit the reports.82 Therefore, in order to admit
a report under this exception a foundation must be laid showing
that the person who wrote the report had actual, first-hand
knowledge or that the sources cited therein were the actual,
first-hand sources for those facts cited.83 The business records
exception can be used to admit the standard reports that an in76. Hynes, 79 F.3d at 293-94 (since case hinged on credibility, questions to
truthfulness of corrections officer should have been admissible, assuming there
was a good faith basis).
77. Eng. v. Scully, 146 F.R.D. 74, 78 (S.D.N.Y. 1993).
78. See FED. R. EVID. 801(c).
79. FED. R. EVID. 803(6).
80. Both the business records and public records exceptions have a “trustworthiness” requirement.
81. Stone v. Morris, 546 F.2d 730, 738 (7th Cir. 1976).
82. FED. R. EVID. 803(6).
83. Hynes v. Coughlin, 79 F.3d 285, 294-95 (2d Cir. 1996). This showing can
contribute to the trustworthiness of the report as well.

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stitution generates following an incident, such as “use of
force.”84
In order for a report to be admitted under the public
records exception it must relate to “matters observed pursuant
to [a] duty imposed by law . . . ”85 or contain “factual findings
resulting from an investigation made pursuant to authority
granted by law . . . .”86 Reports can also be admitted under the
public records exception as extrinsic evidence, to show motive or
intent in an excessive force case.87 In Combs v. Wilkinson, the
Sixth Circuit relied on the public records exception to allow an
investigative committee’s report, detailing facts, conclusions
and opinions, into evidence.88 Portions of a report that contain
interview transcripts or other statements of third parties may
be excluded as “hearsay within hearsay,” which is not covered
by the public records exception,89 and there can be additional
exclusions based on prejudice, relevance and trustworthiness.90
An investigative report could also be admitted under the
general residual exception of Federal Rule 807. Federal Rule
807 requires trustworthiness and sufficient notice of the intent
to offer the statement in advance of trial.91 In addition, the
court must find that the evidence fulfills the following three
factors:
(A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and
the interests of justice will be best served by admission of the
statement into evidence.92
84. Id.
85. FED. R. EVID. 803(8)(B); see Combs v. Wilkinson, 315 F.3d 548, 554-56 (6th
Cir. 2002) (using FED. R. EVID. 803(8)).
86. FED. R. EVID. 803(8)(C); see White v. United States, 164 U.S. 100, 103
(1896).
87. Eng v. Scully, 146 F.R.D. 74, 80 (S.D.N.Y. 1993).
88. See Combs, 315 F.3d at 554-56 (using FED. R. EVID. 803(8)); see also Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 170 (1988) (“As long as the conclusion is
based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.”).
89. JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN’S FEDERAL EVIDENCE § 803.10 n.21 (Joseph M. McLaughlin ed., 2002).
90. See Evans v. Dugger, 908 F.2d 801, 809 (11th Cir. 1990).
91. See FED. R. EVID. 807.
92. Id.

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A report resulting from the investigation of an incident can be
admitted as it is reasonable to infer that the investigators who
prepared the report relied on the first-hand knowledge of prison
officials who have a duty to be accurate.93 Even though the report may have been prepared in preparation for litigation, the
evidence is being offered against the party for whom it was prepared so the report is circumstantially trustworthy.94
K. Damages
The PLRA restricts damage awards.95 The availability of
compensatory and/or punitive damages depends on the constitutional claim brought by the prisoner-plaintiff and on the
PLRA. Section 1997e(e) provides that “[n]o Federal civil action
may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”96
The definition of “physical injury” is generally more than de
minimums, although it does not have to be substantial.97
The constitutional claims to which § 1997e(e) apply are currently under debate, although Eighth Amendment claims are
certainly covered. Courts have reached different conclusions on
whether § 1997e(e) bars an award of mental or emotional damages under First and Fourteenth Amendment claims. The
Ninth and Seventh Circuits, along with some district courts,
have held that the First and the Fourteenth Amendment entitle
a prisoner-plaintiff to judicial relief completely separate from
any physical injury that they can show.98 Other circuits have
barred compensatory damages for emotional injury on non93. Moffett v. McCauley, 724 F.2d 581, 584 (7th Cir. 1984).
94. Id. at 584 n.1.
95. If possible, file the lawsuit after the prisoner is released from custody to
avoid the PLRA completely.
96. 42 U.S.C. § 1997e(e) (2004).
97. See, e.g., Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999); Liner v. Goord, 196 F.3d 132, 135 (2d
Cir. 1999); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
98. See, e.g., Calhoun v. Detella, 319 F.3d 936, 941 (7th Cir. 2003) (citing
Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir. 1999)); Canell v. Lightner, 143 F.3d
1210, 1213 (9th Cir. 1998); Mason v. Schriro, 45 F. Supp. 2d 709, 717 (W.D. Mo.
1999).

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Eighth Amendment constitutional injury claims that do not result in actual, physical injury.99
However, the physical injury requirement of 1997e(e) does
not necessarily preclude the collection of nominal or punitive
damages.100 Nominal and punitive damages are not barred
under the rationale that their preclusion would allow prison officials to intentionally harass or harm the rights of prisoners
and, without inflicting physical injury, be allowed to escape
suit.101 In some circuits this is also true for Eighth Amendment
violations that do not result in physical injury.102 The Supreme
Court’s decision in Carey v. Piphus103 dictates that nominal
damages should be recoverable on pure constitutional injury
claims.
Punitive damages are awarded under § 1997e(e) when the
defendant has an evil motive or intent or when the behavior
involves reckless or callous indifference.104 Under this standard, punitive damages may be recovered under constitutional
claims that do not result in physical injury.105 In alleging and
proving punitive damages, care should be taken not to base the
award of punitive damages on the extent of emotional injury to
the prisoner or the amount of compensatory damages awarded,
rather damages should be based on the malicious behavior of
the prison officials.106
It is also important to note that a portion of any damage
award collected, up to twenty-five percent, is to be used to pay
for attorney’s fees.107
99. Allah v. Al-Hafeez, 226 F.3d 247, 250-51 (3d Cir. 2000).
100. Id. at 251.
101. 319 F.3d at 940.
102. Id.
103. 435 U.S. 247, 266 (1978).
104. Allah v. Al-Hafeez, 226 F.3d, 247, 251-52 (quoting Smith v. Wade, 461
U.S. 30, 56 (1983)).
105. See, e.g., Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002); Oliver v.
Keller, 289 F.3d 623, 630 (9th Cir. 2002); Doe v. Delie, 257 F.3d 309, 314 n.3 (3d
Cir. 2001).
106. See Allah, 226 F.3d at 252; Searles v. Van Bebber, 251 F.3d 869, 879
(10th Cir. 2001). It should be noted that the corrections defendant may often have
a spouse or family members in the courtroom. The prisoner-plaintiff should do
likewise. Jurors need to be reminded that even prisoners have loving families.
107. 42 U.S.C. § 1997e(d) (2004).

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Despite the many burdens imposed by the PLRA, there
have been significant damage awards, although most such
awards stem from Eighth Amendment claims with serious
physical injury.108
L. Attorney Fees
Attorney fees in civil rights actions are governed by 42
U.S.C. § 1988. However, the PLRA adds hurdles to obtaining
attorney fees in prisoners’ rights litigation. Under § 1988 attorney fees are awarded to the plaintiff when he is the prevailing
party.109 A prevailing party is defined as one that “succeed[s] on
any significant issue in litigation.”110 A significant issue is one
which achieves some of the benefit or the primary benefit that
the parties sought in bringing suit.111 When success is partial
or limited, the court compares the product of hours reasonably
expended on the litigation as a whole and a reasonable hourly
rate, to the overall relief obtained by the plaintiff. The court
108. Gregory v. Shelby County, 220 F.3d 433 (6th Cir. 2000) (compensatory
damages in the amount of $778,000; punitive damages totaling $2,275,000; where
a guard allowed a violent prisoner into the cell of the plaintiff who died as a result
of the beating, prior to which there was evidence that the officer forced the now
deceased to perform oral sex and then left the prisoner in his cell for ten hours
before getting him medical attention); Johnson v. Howard, No. 1:96-CV-662, 2001
U.S. App. LEXIS 1317, 2001 WL 1609897 (6th Cir. Dec. 12, 2001) (Eighth Amendment claim under which plaintiff was attacked without provocation and the beating was covered up resulting in $15,000 in actual or nominal damages and
$300,000 in punitive damages); Williams v. Patel, 104 F. Supp. 2d 984 (C.D. Ill.
2000) (deliberate indifference to medical needs resulting in loss of prisoner-plaintiff’s eye; compensatory damages $1 million and punitive damages $1 million);
Miller v. Shelby County, 93 F. Supp. 2d 892 (W.D. Tenn. 2000) (deliberate indifference to prisoner safety, where the plaintiff was injured in an attack which resulted
in damages of $40,000); Beckford v. Irvin, 60 F. Supp. 2d 85 (W.D.N.Y. 1999)
(Eighth Amendment claim and ADA claim resulting in a total of $25,000 in punitive damages and $125,000 in compensatory damages, resulting in attorney fee
award of $50,899, $6,250 of which to be paid from damage award); Perri v. Coughlin, No. 90-CV-1160(NPM), 1999 U.S. Dist. LEXIS 20320, 1999 WL 395374
(N.D.N.Y. June 11, 1999) ($50,000 plus attorney fees and costs for deficient treatment of mental illness and cell conditions); Trobaugh v. Hall, No. C97-0125, 1999
U.S. Dist. LEXIS 23107, 1999 WL 336557 (N.D. Iowa Dec. 6, 1999) ($100 a day for
each day plaintiff was put in isolation in retaliation for his filing of grievances, but
no punitive damages).
109. 42 U.S.C. § 1988(b) (2003).
110. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
111. Id.

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then determines if attorney fees are excessive.112 An hourly
rate for attorney fees is that which is comparable to other attorneys in the community of similar background and experience.113
The PLRA caps the hourly rate awardable to prisonerplaintiff attorneys at 150%114 of the fee for court appointed
criminal defense attorneys.115 Fees are also limited by the
amount of damages awarded. Attorney fees cannot exceed
150% of the award.116 The court will then look at the lesser of
the two calculations.117 Additionally, the PLRA requires
twenty-five percent of the damages to go to attorney fees. If
twenty-five percent of the damages are less than the amount of
attorney fees that the court finds reasonable, then the defendant pays the remainder.118
In order to obtain attorney fees on a preliminary injunction
or a temporary restraining order counsel should ask that the
court decide the injunction or restraining order on the merits. A
decision on the merits can result in an award of attorney fees
even if no final judgment is obtained.119 A simple procedural
win is not enough to award fees.120
So far, efforts to challenge the constitutionality of the
PLRA fee caps have been largely unsuccessful.121
M. Using Verdicts to Solve Problems
Most prison litigators have used litigation as a vehicle to
improve conditions, including safety and medical care. Such
prison reform cases are severely restricted under the PLRA. In
112. Id. at 436. (2,557 hours is reasonable in light of the fact that they succeeded on five of the six claims).
113. Blum v. Stenson, 465 U.S. 886, 900 (1984).
114. 42 U.S.C. § 1997e(d)(3) (1996).
115. 18 U.S.C. § 3006A (2000).
116. 42 U.S.C. § 1997e(d)(2); Foulk v. Charrier, 262 F.3d 687, 704 (8th Cir.
2001).
117. Schlanger, note 6, at 1654.
118. 42 U.S.C. § 1997e(d)(2).
119. Haley v. Pataki, 106 F.3d 478 (2d Cir. 1997); Fitzharris v. Wolff, 702 F.2d
836 (9th Cir. 1983); Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st
Cir. 1982); Deerfield Medical Center v. City of Deerfield Beach, 661 F.2d 328 (5th
Cir. 1981).
120. Hanrahan v. Hampton, 446 U.S. 754 (1980).
121. Morrison v. Davis, 88 F. Supp. 2d 799 (S.D. Ohio 2000) (attorney fee caps
do not violate equal protection); Walker v. Bain, 257 F.3d 660 (6th Cir. 2001)
(same).

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fact, the PLRA causes litigation to focus on money.122 The cases
counsel will likely pursue most vigorously are death claims and
suits based on severe physical injuries. These have the greatest
potential to generate the large damage award needed to finance
the case and support adequate fees.
So what about prison reform? Settlements may still be employed to improve conditions. The best time is after verdict or
after the court has denied summary judgment and the matter is
clearly headed for trial. If the client is willing, non-economic
terms can be included in the goals the prisoner seeks to achieve
through alternative dispute resolution. In one recent case, a
prisoner-plaintiff sued a warden at a reception center following
a brutal attack by his cellmate. The plaintiff was a minimum
security prisoner doing a flat one-year sentence for selling marijuana and his cellmate was a mass murderer. The attack was
terrorizing but there were no severe physical injuries. After losing his bid to dismiss based on qualified immunity, the warden
agreed to settle for $50,000 in damages and fees, and included
plaintiff’s counsel in the dialogue that resulted in a new classification policy at the reception center.123
III. Conclusion
The PLRA is forcing prison reform activists to press for
large damage awards as a vehicle to trigger institutional reform. This article has hopefully helped the practitioner focus
the trial presentation in a way that will make a plaintiff verdict
more likely. When the state or local government must pay a
large verdict conditions may return to the taxpayer agenda.
There is no serious political lobby for prisoners. Often the only
way their concerns will be addressed is through litigation. By
keeping cases lean and presentations effective as recommended
in this article, we can help prisoners secure at least a safe environment with adequate medical care.

122. Alphonse A. Gerhardstein, PLRA Can Affect Private Practitioner’s Ability
to Represent Inmates, CORRECTIONAL L. REP. (Civic Research Institute, Kingston,
N.J.), Feb.-Mar. 2002.
123. Crutcher v. Edwards, No. C2-01-1159 (S.D. Ohio Mar. 2003) (settlement).