Sherman v. Burke Contracting, Inc.

891 F.2d 1527 (1990)

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Nature of the Case

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Facts

Sherman (P) sued Burke Contracting, Inc. (D) for two acts of racial discrimination. At trial and to prove that D caused P's new employer to fire him, P introduced into evidence a tape recording of a conversation he had with his new employer (Palmer) a few weeks before P left that employ. The tape was recorded without the knowledge of Palmer and that Palmer stated that D urged him to fire P for complaining about D to the EEOC. During trial, Palmer denied the conversation, and the jury was dismissed, and the matter was played out before the court regarding the admission of the evidence to impeach Palmer. D objected to the admission of the evidence on grounds that the recording was inaudible but raised no objection on hearsay grounds nor was there any request for limiting instructions to inform the jury that the tape was only admitted solely to impeach Palmer. The tape was admitted into evidence, and P used it to prove the truth of the matter asserted. D appealed indicating that it was the court's duty sua sponte to issue a limiting instruction.