United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
matter is before the Court on “Defendants' Motion
to Clarify Objections to Writs of Habeas Corpus Ad
Testificandum.” On June 23, 2017, plaintiff Ernest
Cornelius Williams filed five applications for Writ of Habeas
Corpus Ad Testificandum, seeking the live testimony of five
inmate witnesses for his upcoming trial on July 24, 2017.
Defendants objected to all five applications, arguing that
none of the witnesses had been identified in the initial Rule
26 disclosures, discovery, or during plaintiff's
deposition. Defendants further argued that the witnesses did
not have personal knowledge of the alleged mistreatment
plaintiff may have undergone in administrative segregation.
5, 2017, the Court granted plaintiff's application for
Writ of Habeas Corpus Ad Testificandum as to inmate Eric
Douglass only. All of the other applications were denied. The
Court found that Mr. Douglass may have first-hand knowledge
of the strip search central to this case, and the defendants
would not be prejudiced by Mr. Douglass's appearance as a
witness, though he was not disclosed in plaintiff's Rule
26 disclosures, because defendants produced Mr.
Douglass's written statement to plaintiff during
discovery. As for the other four inmates, the Court denied
plaintiff's applications because these witnesses were not
disclosed in plaintiff's Rule 26 disclosures or any
subsequent discovery, and plaintiff offered no justification
for his failure to disclose them. Further, the Court found
plaintiff's failure to disclose these witnesses was not
harmless because the defendants did not have the opportunity
to take their depositions or otherwise discover what their
testimony might concern, and “[t]o allow their
testimony would amount to trial by ambush.” Doc. 134 at
3. Alternatively, the Court found “testimony from these
[four] witnesses would be either cumulative, not relevant, or
inadmissible as evidence at trial pursuant to Rule 701 of the
Federal Rules of Evidence.” Id.
Motion to Clarify, defendants state in pertinent part:
Prior to filing their objections, Defendants searched for
initial disclosures filed by the Plaintiff and did not find
that he identified any of the inmate witnesses. On July 14,
2017, Plaintiff's counsel sent Defendants' counsel a
supplemental witness list which Plaintiff had written.
Defendants' counsel did not recall seeing this document
prior to July 14, 2017, but checked the physical file
relevant to this case. Although it was misfiled, it was
received by Defendants' counsel's office.
Doc. 166 at 2.
do not state if the supplemental witness list was dated, when
it might have been received, or even what names were on the
list. The Court infers from defendants'
so-called “clarification” that plaintiff
disclosed the names of the inmate witnesses for whom he
sought writs, and because defendants state the supplemental
witness list was “written” by plaintiff, this
likely occurred sometime prior to the appointment of
plaintiff's counsel in August 2016. Defendants state in
the Motion to Clarify that they “still object” to
the testimony of Anthony Brown, Clarence Taylor, Larry
Griggs, and William Weaver “on substantive
Court denied plaintiff's applications for writs of habeas
corpus ad testificandum for four of the inmate witnesses
based in part on plaintiff's failure to comply with Rule
26, Fed. R. Civ. P., because the Court was incorrectly
informed by Assistant Missouri Attorney General Eileen Ruppe
Krispin that plaintiff failed to disclose the names of these
witnesses. But the Court also denied the applications
on alternative grounds. The Court concluded, based on
plaintiff's representations, that testimony from these
witnesses would be irrelevant, cumulative, or inadmissible
under Rule 701 of the Federal Rules of Evidence. This
conclusion remains true.
initial writ applications filed on June 23, 2017, plaintiff
generically stated that all five of the inmate witnesses
would testify regarding facts supporting plaintiff's
claims that defendants violated his First Amendment rights by
retaliating against him. This very general averment was
entirely inadequate to support applications for a writ of
habeas corpus ad testificandum in a prisoner case. In his
reply memorandum in support of the applications, plaintiff
provided more specific information about the testimony these
inmate witnesses would offer, but it was still not enough for
four of the witnesses.
stated in his reply memorandum that Mr. Brown and Mr. Griggs
would be able to testify that they personally observed
plaintiff undergo strip searches in view of female officers.
But plaintiff did not state when these strip searches
occurred or whether they were conducted by the defendants in
this case. Therefore, plaintiff did not establish the
relevance of the testimony. In his reply memorandum,
plaintiff also stated that Mr. Griggs would testify that he
personally observed defendants singling plaintiff out and
subjecting him to various forms of harassment. Plaintiff did
not, however, state which of the defendants took these
actions, what the alleged harassment was, or when it
occurred. Again, this testimony would not be relevant unless
it was regarding actions by the named defendants during the
time frame at issue.
also stated in his reply memorandum that the inmate witnesses
would all offer “lay opinion testimony.” He
stated that Mr. Brown, Mr. Taylor, and Mr. Weaver would be
able to offer lay opinion testimony that the defendants took
adverse actions and issued misconduct violations against
plaintiff to retaliate against him for filing prison
grievances and lawsuits. Plaintiff did not state when the
allegedly retaliatory violations were issued, however, or how
the witnesses would know the defendants acted with
retaliatory motives. Finally, plaintiff stated that all of
the witnesses could offer lay opinion testimony that
defendants' adverse actions against plaintiff
“would chill the First Amendment rights of a person of
ordinary firmness.” Doc. 132 at 3 and 4.
Rule of Evidence 602 requires that a witness have personal
knowledge of the matters about which he or she testifies.
“Rule 701 adds that testimony in the form of lay
opinions must be rationally based on the perception of the
witness.” United States v. Peoples, 250 F.3d
630, 641 (8th Cir. 2001). “A non-expert witness may
testify to opinions or inferences that are ‘(a)
rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized
knowledge.' Fed.R.Evid. 701.” Craig Outdoor
Advertising, Inc. v. Viacom Outdoor, Inc., 528 F.3d
1001, 1013 (8th Cir. 2008) (emphasis added).
plaintiff has not shown that these four witnesses have
personal knowledge of relevant facts in this case for which
they are offering opinions. For example, plaintiff does not
state that the four inmates observed plaintiff's
treatment in administrative segregation during the time
period in question, or that they heard statements by the
defendants. Therefore, under Eighth Circuit precedent, their
lay opinion testimony would not be admissible because
plaintiff has not shown that they have "first-hand
knowledge of the matter about which [they are being offered
to] testif[y]." Peoples, 250 F.3d at 641.
Plaintiff has not shown that the proposed lay opinion
testimony of Mr. Brown, Mr. Taylor, Mr. Griggs, and Mr.
Weaver is based on their perceptions of the facts, as opposed
to knowledge gained after the fact. Therefore, plaintiff has
not established that their testimony would be admissible
under Rule 701. See Peoples, id. (finding
district court erred in admitting agent witness's lay
opinion testimony, which was based on knowledge gained after
on the foregoing, the Court affirms its alternative holding
in the July 5, 2017 Order denying plaintiffs application for
writs of habeas corpus ad testificandum for Mr. Brown, Mr.
Taylor, Mr. Griggs, and Mr. Weaver. After carefully
considering plaintiffs filings, the Court finds testimony
from these four witnesses ...