In the case of Sherrod v. Berry (856 F.2d 802 (7thCir. 1988)), Sherrod was killed by a policeman named Berry, and Sherrod’s family sued for wrongful death.  At trial, Berry testified that he thought Sherrod had a gun, but no gun was found on Sherrod.  The Trial Court admitted the evidence about there not being a gun, and the jury found for Sherrod.  The Appellate Court reversed.

  • The Appellate Court found that evidence about whether Sherrod was actually armed, (information Berry did not have at the time) was improper, irrelevant, and prejudicial to the determination of whether Berry acted reasonably ‘under the circumstances’.
    • Basically, since Berry reasonably thought that Sherrod had a gun, evidence that later proved he didn’t was not relevant to determining if Berry acted appropriately or not.

This case came to the opposite conclusion as Knapp v. State (168 Ind. 153, 79 N.E. 1076 (1907)).  In that case it was argued that the underlying fact was relevant to determining if the belief was reasonable.

  • You could argue that if Sherrod did not have a gun, then Berry’s claim that he saw a gun was less believable.