A long-time New Jersey police department employee applies for a promotion to captain. On the promotional exam, he scores higher than any other applicant. He isn’t promoted. His consolation prize, however, is a jury verdict of more than $1.2 million in state court last month.

In Downing v. Borough of Roselle and Chief Gerald Orlando, Bradley Downing, a former police officer, sued his former employer and supervisor for, among other things, race discrimination and failure to promote. Downing, who is black, earned the highest score on the promotional exam to become a Captain in the police force. However, shortly before and after the exam scores were announced, Downing’s supervisor, who is white, disciplined Downing for allegedly minor offenses and then failed to recommend Downing for promotion.

Downing sued and the case eventually went to trial. Following a jury trial, Downing was awarded a total of $1,278,240, including $250,000 in punitive damages.

In motions filed after the trial, the defendants claimed that several of the trial court’s evidentiary rulings and actions prejudiced their case, including: (1) the court’s apparent refusal to allow evidence of the racial composition of the Borough Council, the entity that decided who would receive the promotion to Captain; and (2) the court’s questioning of a witness in front of the jury about a racially charged flyer pertaining to another candidate for the Captain position, whom Downing’s supervisor had recommended for promotion. The defendants argued that the flyer was hearsay evidence, extremely prejudicial, and should not have been admitted at trial. Whether the defendants’ post-trial motions and/or appeals are successful remains to be seen.

The Downing case illustrates the uncertainty inherent in a trial. While parties can file motions in limine, and raise objections at trial, there is no guarantee what evidence will come in and what evidence will be kept out. Surely the defendants in this case did not anticipate being barred from presenting evidence they considered critical to their case, or that the court would question a witness about a damaging, allegedly hearsay document.