                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-31-1996

Livingstone v. North Belle Vernon
Precedential or Non-Precedential:

Docket 95-3252




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

Recommended Citation
"Livingstone v. North Belle Vernon" (1996). 1996 Decisions. Paper 138.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/138


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                         _______________

                           NO. 95-3252
                         _______________

                   FRANCES E. LIVINGSTONE and
              JOSEPH A. LIVINGSTONE, her husband,

                                    Appellants

                               v.

NORTH BELLE VERNON BOROUGH; FAYETTE CITY BOROUGH; WASHINGTON
TOWNSHIP; FRANK E. MONACK, JR., individually and in his capacity as
officer of WASHINGTON TOWNSHIP; OFFICER RAYMOND MOODY, individually
and in his capacity as officer for FAYETTE CITY BOROUGH; OFFICER
DARHL SNYDER, individually and in his capacity as an officer for
NORTH BELLE VERNON BOROUGH

                         _______________

         On Appeal from the United States District Court
             for the Western District of Pennsylvania

                    D.C. No. 91-00059
                         _______________

                     Argued January 25, 1996

           Before: COWEN and SAROKIN, Circuit Judges
and POLLAK, District Judge

                      (Filed July 31, 1996)


                         Peter M. Suwak (argued)
                         Post Office Box #1
                         Washington, PA 15301
                           Attorney for Appellants

                         Thomas P. McGinnis
                         Dara A. DeCourcy (argued)
                         Zimmer Kunz, P.C.
                         3300 USX Tower
                         Pittsburgh, PA 15219

                         John W. Jordan, IV
                         Gaca, Matis & Hamilton
                         Four PPG Place, Suite 300
                         Pittsburgh, PA 15222
                           Attorneys for Borough of
                            North Belle Vernon and Darhl Snyder

                         Simon B. John
                         John & John
                         96 East Main Street
                         Uniontown, PA 15401
                           Attorney for Borough of
Fayette City and Raymond Moody

                         Albert C. Gaudio
                         513 Schoonmaker Avenue
                         Monessen, PA 15062
                           Attorney for Washington
                           Township

                         Timothy M. Maatta
                         513 Schoonmaker Avenue
                         Monessen, PA 15062
                           Attorney for
                             Frank E. Monack, Jr.

                          ______________

                       OPINION OF THE COURT
                         _______________
POLLAK, District Judge.
     This is the second time that this matter has come before this
court.
     Appellants Frances and Joseph Livingstone commenced this civil
rights suit, pursuant to 42 U.S.C.   1983, in January, 1991 against
defendants North Belle Vernon Borough, Fayette City Borough,
Washington Township, Officer Darhl Snyder, Officer Raymond Moody,
and Officer Frank E. Monack. The defendants moved for summary
judgment, asserting that the Livingstones' claims were barred by an
agreement said to have been made in 1990 in which the Livingstones
waived any civil claims in exchange for the termination of a
criminal prosecution of Frances Livingstone. (Agreements like this
one, in which a criminal defendant waives potential civil claims in
exchange for the dismissal of the case against her, are called
"release-dismissal agreements.")
     The district court granted summary judgment in favor of the
defendants. In Livingstone v. North Belle Vernon Borough, 12 F.3d
1205 (3d Cir. 1993) (in banc) ("Livingstone I"), this court
reversed, finding that there was a genuine issue of material fact
as to whether the Livingstones had concluded the release-dismissal
agreement voluntarily. 12 F.3d at 1214. In that opinion, we also
observed that the agreement raised a number of other possible legal
questions, including whether its enforcement would be in the public
interest and whether it was invalidated by the municipalities'
failure to formally ratify it.
     On remand, the district court granted partial summary judgment
in favor of the defendants as to the latter two questions, finding
that the agreement's enforcement would be in the public interest
and that no formal ratification was necessary. The district court
then conducted a jury trial devoted to the single question whether
the Livingstones had concluded the release-dismissal agreement
voluntarily. The jury found that the Livingstones did indeed
voluntarily conclude the release-dismissal agreement. Accordingly,
the district court ordered that judgment be entered in favor of the
defendants and against the Livingstones as to all of the
Livingstones' claims. This appeal followed.

I.  Factual Background and Procedural History
A.  Livingstone I.
     In Livingstone I, we compendiously summarized this case's
elaborate factual and procedural history. It seems efficient to
reproduce that summary here verbatim. (Except as noted, all
footnotes and all emendations are from Livingstone I.)

          This civil suit filed by Frances and Joseph Livingstone
     against the police officers and municipalities arose from the
     conduct of the police officers on the night of January 12-13,
     1989, at the Livingstone home in Washington Township,
     Pennsylvania. During a family argument between Carrie
     Livingstone, age twenty-two, who was unmarried and living at
     her parents' home with her fourteen-month-old son, and Joseph,
     her father, Mr. Livingstone struck Carrie on the face, causing
     her lip to split and bleed. Carrie ran out of the house and
     to the community ambulance service across the street, where an
     employee called the police. When Officer Frank Monack
     arrived, Carrie told him that her father had struck her and
     that her parents were holding her son without her consent.

          Monack, who was at that time an officer in the Washington
     Township Police Department and is now Chief of Police, radioed
     for assistance pursuant to an intermunicipal police
     cooperation agreement. Raymond Moody, who was and is the
     Chief of Police for the Borough of Fayette City, and Darhl
     Snyder, an officer in the North Belle Vernon Police
     Department, responded. They proceeded to the Livingstone home
     where Mr. Livingstone permitted them to enter for the
     purpose, he later testified, of discussing possible criminal
     charges against him arising out of the incident. Following a
     brief discussion, Monack and Snyder accompanied Mr.
     Livingstone outside, and Monack told him to go to the nearby
     police station to make a statement. No charges were filed
     against Mr. Livingstone that evening or at any later time.

          Monack and Snyder then reentered the Livingstone
     household, this time in search of Carrie's son and admittedly
     without a warrant or court order. Mrs. Livingstone had
     retreated to the back bedroom with her grandson, and had
     locked and barricaded the door. When she refused to open the
     door, Monack picked the lock and then tried to push the door
     open. From the partially opened door, Mrs. Livingstone hit
     him with a fishing rod and scratched him. Monack and Snyder
     broke the door down to enter the room, and then Monack told
Mrs. Livingstone she was under arrest.

     Mrs. Livingstone testified that both men struck her,
causing her to lose consciousness and sustain bruises,
lacerations, lost teeth, and head injuries. According to
defendants, they used force only for the purpose of getting
handcuffs on her after she struck the officer, and a stun gun
to subdue her because she was screaming and kicking. Snyder
held her down while Monack used the gun. Mrs. Livingstone
claims that Monack then said "you want a thrill, I'll give you
a thrill" and applied the stun gun between her legs. A
medical examination conducted at the hospital that night notes
a burn in the vulval area.

     The officers removed Mrs. Livingstone, handcuffed, from
the house. She states that they dragged her outside and
dropped her several times, banging her head, and then left her
lying in cold muddy water for hours. The officers claim that
her thrashing caused them all to fall, and that she refused to
get up.

     On January 13, 1989, the morning after the altercation,
Mrs. Livingstone was charged by Monack, on behalf of the
Washington Township Police Department, with disorderly
conduct, aggravated assault, terroristic threats, resisting
arrest, and interference with custody. At a preliminary
hearing on April 18, 1989, Mrs. Livingstone was held over for
a jury trial on all but the terroristic threats charge, and
the aggravated assault charge was reduced to simple assault.

      The trial in Fayette County Court of Common Pleas began
on February 13, 1990, with attorney Thomas R. Ceraso
representing Frances Livingstone and Jack R. Heneks, Jr., an
Assistant District Attorney, representing the Commonwealth of
Pennsylvania. Carrie Livingstone testified for the
prosecution, followed by Monack, Snyder, Moody, Police Chief
Robert Matthews of Washington Township, and Evelyn Rehe of the
community ambulance service. The Commonwealth rested, and
Mrs. Livingstone demurred to all of the charges. The demurrer
was granted on the charge of interference with custody on the
ground that there were no facts showing danger to the child,
but was denied as to the other charges.

     Thereafter, Joseph Livingstone and his son, James,
testified for the defense. Before Mrs. Livingstone was to
take the stand (and presumably would have testified about her
claims with regard to police use of a stun gun on her private
parts), the trial judge, Judge Cicchetti of the Court of
Common Pleas, met with Heneks and Ceraso to discuss whether
the matter could be resolved. After settlement negotiations,
a conference was held in camera with Judge Cicchetti. Present
were Moody, Monack, Matthews (now deceased), the Livingstones,
Ceraso, and Heneks.
     Ceraso summarized the arrangement by stating that the
defense would move for a judgment of acquittal after James
Livingstone finished his testimony; that expenses for the
physical damage to the Livingstone house and for Mrs.
Livingstone's reasonable medical care would be paid; and that
once those bills were paid, the Livingstones would release any
civil claims. Ceraso stated on the record:

     there will be an agreement on the part of my client, Mrs.
     Livingston[e], and also her husband, Joe Livingston[e],
     who is present, that upon payment of reasonable medical
     bills that w[e]re associated with the incident that
     occurred, based on my forwarding those to Washington
     Township with confirmation, together with bills
     reflecting damage incurred at the household of Mr. and
     Mrs. Livingston[e], that Washington Township will cause
     the same to be paid. At the time of final payment of
     those bills, there will be a full and complete release
     signed with reference to any civil action on the part of
     Mr. and Mrs. Livingston[e]. It's also my understanding
     that at that time there will also be a release signed by
     Washington Township, or any of its proper officials, or
     any member of the police force necessary to release Mr.
     and Mrs. Livingston[e] from any liability . . . .

 App. at 1109.

     In response to the judge's inquiry, the parties voiced an
expression of assent. The court asked whether "you all think
this is in the best interest for everyone" and Matthews,
Monack, and Heneks said they did. App. at 1112. When they
returned to the courtroom, Ceraso moved for a judgment of
acquittal on the criminal charges against Mrs. Livingstone,
which the court granted.

     It is undisputed that the settlement agreement was never
reduced to writing. The Livingstones never submitted for
payment any medical bills or household repair bills, and no
payments have been made. The Board of Supervisors of
Washington Township took no action to officially ratify the
agreement until almost two years after the conference in
chambers, and only then after this suit was started. There
is no evidence that the other two municipal defendants, North
Belle Vernon Borough and Fayette City Borough, have ever taken
any action to ratify any putative settlement.

     On January 14, 1991, almost a year after the criminal
trial, the Livingstones filed this action against the police
officers and the three employer municipalities. The complaint
consisted of seven claims: a federal claim filed pursuant to
42 U.S.C.   1983 (1988), and state law claims alleging assault
and battery, malicious prosecution, malicious abuse of
process, invasion of privacy, intentional infliction of
emotional distress, and conversion.
          The defendants filed motions to dismiss or, in the
     alternative, for summary judgment. The district court
     referred the case to a magistrate judge, who ordered the
     parties to engage in discovery [footnote omitted] and to
     submit briefs and materials in support of the motions.

          In their briefs in support of summary judgment,
     defendants argued that the suit was barred by the
     release-dismissal agreement reached during the in cameraconference
before Judge Cicchetti. The Livingstones claimed
     that they never intended to waive their rights to sue,
     pointing out that the agreement was never reduced to writing
     and that Washington Township never made the contemplated
     payments. They also contended that the agreement was never
     properly entered into by the municipalities, as the Washington
     Township Board of Supervisors never formally approved it and
     the other boroughs' governing bodies never considered it, and
     that the agreement was invalid and unenforceable under
     Pennsylvania law.

           On April 8, 1992, the magistrate judge submitted a Report
     and Recommendation recommending that summary judgment be
     granted for the defendants on the basis of the release-
     dismissal agreement. Although the court acknowledged that
     Washington Township may not have formally approved the
     agreement, it noted that two supervisors, a quorum, had
     approved it, thereby satisfying Pennsylvania law. Without
     comment on the absence of the other municipalities and
     officers from the agreement, the magistrate judge concluded
     that plaintiffs had contracted with all of the defendants, and
     thus the plaintiffs' civil suit was barred; that the
     agreement comported with due process because the plaintiffs
     understood that they were waiving their rights to assert
     future civil claims and had entered into the release
     voluntarily; and that there was sufficient consideration
     because the plaintiffs, in exchange for the surrender of their
     potential civil claims, had secured the dismissal of the
     criminal charges and a promise by the defendants not to sue
     them.

          Objections were filed but the district court adopted the
     magistrate judge's opinion as its own and granted summary
     judgment for all defendants. This timely appeal followed.

     Livingstone I, 12 F.3d at 1206-09.
     With this background history as predicate, the court in
Livingstone I then proceeded to review the elements of proof for a
showing of voluntariness, finding that the parties seeking to
enforce the release-dismissal agreement bore the burden of showing
that the Livingstones' assent was "voluntary, deliberate and
informed." 12 F.3d at 1211. We concluded that the defendants had
not met this burden with the certainty called for on summary
judgment, given that Mrs. Livingstone was confused as to the terms
of the release-dismissal arrangement, that the claimed release-
dismissal agreement was never written down, and that the asserted
agreement Ä assuming there was a meeting of the minds Ä was made,
if at all, during a brief and ambiguous oral colloquy. See id. at
1211-14. Accordingly, we reversed the grant of summary judgment
and directed that the case be remanded for further proceedings.

B.   Post-Livingstone I Proceedings
      Following remand, the defendants filed a motion for summary
judgment challenging the Livingstones' complaint on a variety of
grounds other than the release-dismissal agreement. Their motions
were referred to a magistrate judge, whose Report and
Recommendation ("R&R") the district court then adopted without
substantive comment. In accordance with the recommendations of the
magistrate judge, the district court ordered that (1) summary
judgment be entered in favor of all defendants as to the
Livingstones' claims of malicious prosecution, abuse of process,
and invasion of privacy; and (2) summary judgment be entered in
favor of Officer Moody as to the assault and battery claims. The
district court denied summary judgment as to the Livingstones'
constitutional claims, their claims of assault and battery against
Officers Monack and Snyder, their claim of intentional infliction
of emotional distress, and their conversion claim. App. at 326,
352.
      The Livingstones then filed a motion for partial summary
judgment renewing two arguments that they had already
unsuccessfully made to the district court in the first round of the
litigation. These arguments were that the release-dismissal
agreement was unenforceable because (a) the municipalities had not
ratified it, as (assertedly) required by Pennsylvania law, and (b)
the release-dismissal agreement had been concluded in a manner
which violated "the Pennsylvania Rules of Criminal Procedure and
public policy." App. at 355. The defendants responded with
cross-motions for partial summary judgment that asserted that no
ratification was necessary, because the Livingstones had failed to
submit their medical bills to Washington Township for payment. The
district court granted summary judgment in favor of the defendants
on both the ratification question and the public-interest question.
      The district court then conducted a jury trial limited to one
question, whether the Livingstones voluntarily entered into the
release-dismissal agreement. After several days of trial,
including extended testimony by Thomas R. Ceraso (Mrs.
Livingstone's lawyer at her criminal trial), the jury found that
the Livingstones did indeed enter into the agreement voluntarily.
Accordingly, the district court entered judgment in favor of the
defendants and against the Livingstones. The Livingstones moved
for a new trial, for judgment notwithstanding the verdict, and to
amend the court's judgment to require Washington Township to pay
household damages and medical bills to the Livingstones (apparently
in order to enforce the terms of the release-dismissal agreement).
These motions were denied, and this appeal followed.
      On appeal, the Livingstones assert that the district court (1)
erred in finding that the agreement was valid and enforceable even
though the municipalities had not ratified it; (2) erred in ruling
that the enforcement of the agreement was in the public interest as
a matter of law; and (3) made a number of errors at the
voluntariness proceeding. We will discuss these questions in that
order.
     As to the second and third of these arguments, the district
court, appellants, and appellees all assume that identical legal
standards govern the enforcement of the release-dismissal agreement
as to the Livingstones' section 1983 claims and as to their state-
law claims. However, as we suggested in Livingstone I, see 12 F.3d
at 1209 n.6, this is not necessarily the case. Federal common law
governs the enforceability of the release-dismissal agreement as to
the Livingstones' section 1983 claims, while we must look to
Pennsylvania law to assess the enforceability of the agreement as
to their state-law claims. Thus, the legal standards applicable to
the Livingstones' state-law claims will be discussed separately.

II.  Jurisdiction and Standard of Review
     We have appellate jurisdiction pursuant to 28 U.S.C.   1291.
As to the municipal ratification and public-interest questions, on
which the district court granted summary judgment, our review is
plenary. See Erie Telecommunications Inc. v. City of Erie, 853
F.2d 1084, 1093 (3d Cir. 1988). The appellants also assert that,
at the voluntariness proceeding, the district court (1) gave an
incorrect jury instruction, (2) erred in declining to give a
requested jury instruction, and (3) made a number of incorrect
evidentiary rulings. To the extent that appellants claim that a
jury instruction failed to state the proper legal standard, our
review is plenary. See Government of Virgin Islands v. Isaac, 50
F.3d 1175, 1180 (3d Cir. 1995). To the extent that appellants
contest the district court's refusal to give particular jury
instructions, our review is for abuse of discretion. See id. The
evidentiary rulings that the appellants challenge are all
discretionary rulings of the type that we review for abuse of
discretion. This includes rulings as to the relevance of evidence
and as to its prejudicial effect, see In re Japanese Electronic
Products, 723 F.2d 238, 257, 260 (3d Cir. 1983), rev'd on other
grounds, sub nom. Matsushita Electrical Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574 (1986), and as to waiver of the attorney-
client privilege, see United States v. Bilzerian, 926 F.2d 1285,
1293 (2d Cir. 1991).

III.  Municipal Ratification
     The terms of the alleged release-dismissal agreement, as
recited by Ceraso, were that:
          there will be an agreement on the part of my client, Mrs.
          Livingston[e], and also her husband, Joe Livingston[e],
          who is present, that upon payment of reasonable medical
          bills that w[e]re associated with the incident that
          occurred, based on my forwarding those to Washington
          Township with confirmation, together with bills
          reflecting damage incurred at the household of Mr. and
          Mrs. Livingston[e], that Washington Township will cause
          the same to be paid. At the time of final payment of
          those bills, there will be a full and complete release
         signed with reference to any civil action on the part of
         Mr. and Mrs. Livingston[e]. It's also my understanding
         that at that time there will also be a release signed by
         Washington Township, or any of its proper officials, or
         any member of the police force necessary to release Mr.
         and Mrs. Livingston[e] from any liability . . . .

Appellees North Belle Vernon Borough and Officer Darhl Snyder's
App. at 30. In short, the arrangement was apparently that, after
the prosecution of Mrs. Livingstone was terminated, the
Livingstones would submit bills for property damage and for medical
costs to Washington Township. Once the Township paid these bills,
the Livingstones, the municipalities, and the police officers would
then sign full mutual releases of civil claims.
     The Livingstones concede that they never submitted their bills
to Washington Township, as apparently required by the terms of the
agreement. The district court found that their failure to do so
rendered it impossible for the municipal defendants to ratify the
release-dismissal agreement, as "the public fisc cannot be
allocated for an indefinite amount to a private party." App. at
377-78. The district court did not, however, discuss an antecedent
question: whether (and how) a contract was ever formed between the
Livingstones and the municipalities. Conceptually, it would hardly
be possible for the Livingstones to have rendered impossible the
performance of a contract that was never formed.
     Under Pennsylvania law, a township cannot enter into a binding
contract except by a vote of the township's supervisors. SeeAbington
Heights School District v. Township of South Abington, 456
A.2d 722, 724 (Pa. Cmwlth. 1983). North Belle Vernon Borough and
Fayette City Borough never conducted such a vote, and Washington
Township only did so after the present suit was filed. On appeal,
the Livingstones assert that the failure of the municipalities to
ratify the release-dismissal agreement meant that no contract was
ever formed between the Livingstones and the municipalities, and
that the release-dismissal agreement is therefore unenforceable.
     We will not address this question, however, because we find
that it was not necessary for the municipalities to be parties to
the release-dismissal agreement in order for it to be enforceable.
It would suffice for the municipalities to have been third-party
beneficiaries of an agreement concluded between the Livingstones
and the Commonwealth of Pennsylvania; and, indeed, the colloquy
before Judge Cicchetti suggests that this is what was intended
(assuming, of course, that a valid agreement was formed at all).
The principal parties negotiating the purported release-dismissal
agreement were the Livingstones (through Mrs. Livingstone's
attorney, Ceraso) and the Commonwealth (through Heneks, an
assistant district attorney). The agreement's terms appear to have
been that the Commonwealth would not oppose Mrs. Livingstone's
motion for a judgment of acquittal. In exchange, the Livingstones
would submit their medical and household damages bills to
Washington Township, and, when those bills were paid, would sign a
full release of civil liability with all of the municipalities and
police officers involved, reciprocal releases of civil liability
being signed by those police officers and municipalities with
potential claims against the Livingstones.
     Although the municipalities and police officers were clearly
intended to benefit from this agreement, the agreement's success
did not require them to be parties to it. The Livingstones were
not harmed by the municipalities' lack of party status. If
Washington Township did not pay the Livingstones' actual expenses,
or if one of the municipalities or officers refused to sign (or to
negotiate in good faith towards) a release, the Livingstones would
have lost nothing. The criminal charges against Mrs. Livingstone
could not have been reinstituted; moreover, the Livingstones would
presumably have been free to file a civil action against any of the
municipalities or police officers that failed to cooperate as
anticipated.
     An implicit term of this release-dismissal agreement is
necessarily that the Livingstones could bring a civil suit against
the municipalities or police officers only after the Livingstones
had made a good-faith effort to negotiate towards reciprocal
releases and those negotiations had failed. This term follows from
the duty of good faith and fair dealing, Restatement (Second) of
Contracts    205 (1981), and that duty's correlative obligation not
to act so as to defeat an agreement's objective. The record
indicates that the Livingstones did not make any effort to
negotiate towards such reciprocal releases. Hence, assuming that
the release-dismissal agreement is otherwise valid and enforceable
Ä the question that we will address next Ä the Livingstones'
failure to seek mutual releases would seem to bar their suit.
     The Livingstones also question whether North Belle Vernon
Borough and Fayette City Borough Ä which I will refer to, for
brevity, as "the two boroughs" Ä had the same status under the
release-dismissal agreement as did Washington Township. In the
voluntariness proceeding in the district court, counsel for the
Livingstones had requested that a specific question on the verdict
form address the status of the two boroughs under the agreement.
The district court declined to include such a question on the form,
finding that Ceraso's statements in the colloquy before Judge
Cicchetti included all three municipalities, and that all three
therefore had the same status for purposes of the voluntariness
question. In response to the objections of the Livingstones'
counsel to this ruling, the district court permitted him to argue
to the jury that the ambiguous nature of the agreement between the
Livingstones and the two boroughs rendered the release-dismissal
agreement involuntary as a whole. App. at 804-06.
     Although the Livingstones' argument focuses on whether the
release-dismissal agreement was voluntary as to the two boroughs,
this issue cannot be completely disentangled from that of whether
the agreement addressed the boroughs at all. The colloquy before
Judge Cicchetti is far from a model of clarity on this question.
During the colloquy, Ceraso stated that he had
     no objection if those police departments or those
     municipalities also wish to be included in the release,
     and we would then have reciprocal releases from them, and
     we would let that up to their individual counsel to make
     that decision, but we certainly would have no objection
     in doing that so it would be reciprocal on both sides.
Appellees North Belle Vernon Borough and Officer Darhl Snyder's
App. at 31. This statement can be construed either (1) as
indicating that the Livingstones had undertaken to negotiate
towards a civil release with the two boroughs (making the boroughs,
with Washington Township, third-party beneficiaries of the release-
dismissal agreement), or (2) as merely making an offer to those two
municipalities.
     The question of which of these readings of Ceraso's remarks is
correct was not argued before the district court. On remand, the
district court should permit the parties to brief this question.
In resolving this issue, the district court may consult all of the
sources to which courts usually refer in determining the meaning of
ambiguous contractual language, including, for instance, the course
of the negotiations between the parties.

IV.  The Public Interest
     In Town of Newton v. Rumery, 480 U.S. 386 (1987), a four-
Justice plurality found that, as a matter of federal common law, a
release-dismissal agreement will operate to bar a section 1983
claim unless "the interest in [the agreement's] enforcement is
outweighed in the circumstances by a public policy harmed by the
enforcement of the agreement." Id. at 392. Justice O'Connor,
whose fifth vote was dispositive, noted in a concurring opinion
that it is the burden of the defendants to demonstrate that "a
particular release executed in exchange for the dismissal of
criminal charges was voluntarily made, not the product of
prosecutorial overreaching, and in the public interest." Rumery,
480 U.S. at 401.
     In Cain v. Darby Borough, 7 F.3d 377 (3d Cir. 1993) (in banc),
cert. denied, 114 S. Ct. 1303 (1994), this court addressed the
circumstances in which enforcement of a release-dismissal agreement
will be in the public interest. Cain made clear that the above-
quoted passage from Justice O'Connor's Rumery concurrence should
not be read to suggest that the "prosecutorial overreaching" and
"public interest" questions are to be analyzed separately; rather,
"the concept of prosecutorial misconduct is embedded in a larger
inquiry into whether enforcing the release would advance the public
interest." Id. at 380; see also Lynch v. City of Alhambra, 880
F.2d 1122, 1126 n.6 (9th Cir. 1989) (arguing that there is only one
inquiry); but compare Woods v. Rhodes, 994 F.2d 494, 500-01 (8th
Cir. 1993) (apparently treating the analyses as distinct).
     Cain found that a party seeking to demonstrate that the
enforcement of a release-dismissal agreement is in the public
interest must make two distinct showings, which we will call here
Cain's "objective" and "subjective" elements. Cain's objective
element requires both that "the facts known to the prosecutor when
the agreement was reached" must have sufficed to support the
prosecutor's proffered public interest reason for concluding the
agreement, and that this public-interest reason be a legitimate
one. 7 F.3d at 381. Relevant public interests include the
interest, cited by the Court in Rumery, in avoiding the costs and
disruptions associated with defending "marginal" or "frivolous"
civil rights actions, Rumery, 480 U.S. at 395, and the
countervailing interest, also cited by the Court, in detecting and
deterring official misconduct. See Rumery, 480 U.S. at 394; id. at
400 (O'Connor, J., concurring).
     Cain's subjective element is its requirement that:
     the public interest reason proffered by the prosecutor must be
     the prosecutor's actual reason for seeking the release. . . .
     Any alternative to the 'actual reason' requirement creates the
     real danger that actions taken pursuant to an improper motive,
     such as to protect public officials from a meritorious civil
     rights lawsuit, may be legally excused because a court later
     finds that some 'benefit' might have been incidentally
     achieved.

7 F.3d at 381 (emphasis in original). The party seeking to enforce
the release-dismissal agreement bears the burden of proof on both
of these elements.
     In the present case, the district court denied a motion by the
Livingstones that sought to establish as a matter of law that the
enforcement of the release-dismissal agreement was contrary to the
public interest, and instead entered summary judgment against the
Livingstones on this question, finding that the enforcement of the
agreement was in the public interest as a matter of law. On
appeal, the Livingstones challenge both rulings. They argue,
first, that the district court erred in denying their motion for
summary judgment, and that it should have found the release-
dismissal agreement unenforceable as a matter of law. In the
alternative, they contend that the district court erred in granting
the appellees' motion for summary judgment, because there was a
genuine issue of material fact as to prosecutorial motive.
     The Livingstones' two arguments are founded on distinct
elements of the Cain analysis. Their argument that the district
court erred in declining to find the release-dismissal agreement
unenforceable as a matter of law is directed at Cain's objective
element; it challenges the district court's conclusion that the
facts known to the prosecutor at the time the release-dismissal
agreement was concluded sufficed to establish that it was in the
public interest to conclude such an agreement. Their argument that
there is a genuine issue of material fact as to prosecutorial
motivation is directed at Cain's subjective component, which
requires that the prosecutor's stated reason for concluding a
release-dismissal agreement "must be the prosecutor's actual reasonfor
seeking the release." Cain, 7 F.3d at 381. We will consider
these arguments in that order.

A.  Cain's Objective Element
1.  The District Court's Analysis
     The district court concluded that the facts known to the
prosecutor at the time the agreement was concluded justified
finding that the enforcement of the release-dismissal agreement
would be in the public interest. The court explained its
conclusion as follows:

     Here, Judge Cicchetti, who presided over the criminal trial
     against Mrs. Livingstone and who supervised the execution of
     the release-dismissal agreement, stated in the colloquy that
     he was supportive of the agreement because he saw no benefit
     to a criminal trial and that it was in everyone's best
     interest to resolve the matter. Mr. Heneks, the assistant
     district attorney who was assigned to the case stated that he
     believed that the Commonwealth would be well-served by the
     resolution as well. Later, in a sworn statement, Mr. Heneks
     indicated that continuation of the criminal trial would have
     created further conflict between the Livingstones and their
     daughter who had reconciled their differences since the night
     of the incident. In addition, he stated that the agreement
     saved the Commonwealth from spending further resources to
     prosecute. The reasons stated by Mr. Heneks are factors that
     were known to him at the time the agreement was executed. In
     the absence of evidence that the motivation was improper, we
     may accept his explanation. In addition, each reason
     constitutes an independent, legitimate reason which is
     directly related to his prosecutorial responsibilities. SeeRumery,
480 U.S. at 398.

App. at 380-381. The court's analysis posits three public-interest
rationales for upholding the release-dismissal agreement: the
agreement's supervision by Judge Cicchetti, the desire of the
Commonwealth to avoid further conflict between the Livingstones and
their daughter, and the Commonwealth's wish to avoid expending more
of the Commonwealth's resources to prosecute Mrs. Livingstone. We
will consider these three rationales seriatim.
     As to the first of the three rationales, it is of course true
that (1) the Rumery plurality noted that judicial supervision of
release-dismissal agreements can "help ensure that the agreements
did not result from prosecutorial misconduct," 480 U.S. at 399
n.10, and (2) Justice O'Connor observed that such supervision can
"bear on whether a release was voluntary and not the product of
overreaching," id. at 401-02. Judicial supervision can indeed be
important in ensuring that an agreement was concluded voluntarily,
and, to a lesser extent, that the prosecutor's stated reasons for
seeking an agreement are genuine. Judicial supervision is less
relevant to Cain's objective inquiry, however, which focuses on the
information known to the prosecutor. At best, judicial supervision
may help to reinforce a subsequent court's independent
determination that a prosecutor had a sound public-interest reason
for concluding a release-dismissal agreement. As will become
clear, it seems unlikely that Judge Cicchetti's supervision of the
dismissal of the charges against Mrs. Livingstone played that role
here.
     Nor does Heneks' asserted desire to avoid further stress to
the Livingstone family serve a particularly strong public interest.
It is, of course, commendable for prosecutors to give some thought
to the welfare of the accused's family. In practice, however, the
public would be rightly surprised were a prosecutor to place these
considerations above, for instance, the public interest in
punishing crime, or the public interest, expressed in section 1983,
in exposing official abuse. We do not think that the public's
interest in avoiding strain to a defendant's family can, standing
alone, be a legitimate reason for concluding a release-dismissal
agreement.
     Nor, finally, does Heneks' wish to avoid the cost of further
prosecution carry much weight. A desire to avoid the cost of
prosecution (and of a related civil suit) may be an acceptable
public-interest rationale for some release-dismissal agreements.
As Justice O'Connor observed in Rumery:
     [P]rosecutors may legitimately believe that, though the police
     properly defused a volatile situation by arresting a minor
     misdemeanant, the public interest in further litigation is
     outweighed by the cost of litigation. Sparing the local
     community the expense of litigation associated with some minor
     crimes for which there is little or no public interest in
     prosecution may be a legitimate objective of a release-
     dismissal agreement.

480 U.S. at 399-400. By definition, in any case in which a
release-dismissal agreement has been concluded, the community will
have avoided the cost of prosecution; thus, a prosecutor could
assert that "the public interest in further litigation is
outweighed by the cost of litigation" in any case. In order to
ensure that such assertions do not act as a blanket exception to
the public-interest element of Rumery, the courts must subject
those assertions to close scrutiny.

2. Marginal or Frivolous Nature of the Livingstones' Civil Rights
Claims
     The record does not indicate that Heneks considered whether
the Livingstones' civil rights claims were marginal or frivolous
before concluding the agreement. In Cain, we stated that a
prosecutor must conduct an "individualized analysis" of a
defendant's civil rights claims before concluding a release-
dismissal agreement, 12 F.3d at 383, and that in order for a
release-dismissal agreement to be enforceable "there must be a
case-specific showing that the released civil rights claims
appeared to be marginal or frivolous at the time the agreement was
made and that the prosecutor was in fact motivated by this reason."
Id.
     The question whether the facts known to Heneks could have
supported the conclusion that the Livingstones' civil rights claims
were marginal or frivolous was not addressed in the district
court. On this record, resolution of that question in the
defendants' favor was a necessary predicate for a grant of summary
judgment holding that the release-dismissal agreement was in the
public interest. We will, therefore, vacate the district court's
grant of summary judgment and remand the case so that the parties
can address the question whether the Livingstones' civil rights
claims were regarded Ä and, if so, whether they were properly
regarded Ä by the prosecuting attorney as marginal or frivolous.
     We think that, on remand, the parties will, at a minimum, wish
to take account of the material in this record which suggests that,
at the time Heneks agreed to the dismissal of the charges against
Mrs. Livingstone, considerable information pointing in the
direction of significant police misconduct had come to Heneks'
attention. Of course, what is of record here cannot be deemed
dispositive of the question whether Heneks could properly have
concluded that the Livingstones' civil rights claims were marginal
or frivolous, for the reason that the proceedings in the district
court have not been focused on that issue. Further evidence may be
adduced on remand that casts the relevant events in a very
different light. But we think it may be helpful to relate the
principally salient matter appearing in our current record in order
to provide a point of departure for the proceedings on remand.
     The most important item of evidence in this respect is the
report of Dr. Noche, the emergency-room doctor who examined Mrs.
Livingstone on the night of her encounter with the police. That
report indicates that Mrs. Livingstone had first or second degree
burns in her vaginal area. The substance of Dr. Noche's report
was almost certainly known to Assistant District Attorney Heneks.
The record does not contain any plausible explanation of how this
burn came to appear on Mrs. Livingstone's genitalia Ä other than
Mrs. Livingstone's own explanation, which was that it was the
result of the police's deliberate misuse of a stun gun. Nor is
there any indication in the record that Heneks was aware of other
evidence that contradicted the emergency-room report. In short,
it is difficult to escape the conclusion that Dr. Noche's report
significantly corroborates Mrs. Livingstone's claim that the police
deliberately applied a stun gun to her genitalia, an act that, if
it did occur, would amount to an outrageous instance of police
abuse.
     It is possible that facts not in the present record would
undermine some element of the foregoing analysis. On remand, the
parties should address (1) whether Heneks made a determination that
the Livingstones' civil rights claims were marginal or frivolous,
and, if so, on what basis he did so; (2) whether Heneks knew or
should have known of the foregoing evidence of police misconduct;
and (3) if Heneks did know, or should have known, of that evidence,
whether other facts available to Heneks in some way undercut it.
We emphasize that it would not suffice for the defendant
municipalities and police officers to demonstrate on remand that
Heneks was aware of other evidence that merely contradicted the
foregoing evidence of police misconduct, as this would only
establish that there was substantial evidence on both sides of the
misconduct question. Instead, defendants would have to
demonstrate that Heneks was aware of other evidence that rendered
the foregoing evidence of police misconduct fundamentally
untrustworthy.
     It is conceivable that the district court may conclude that
Heneks was not aware, and had no reason to be aware, of some of the
foregoing evidence of official misconduct, and that, not being
apprised of this evidence, Heneks reasonably determined that the
Livingstones' civil rights claims were marginal or frivolous. That
would not, however, be the end of the district court's inquiry.
The district court would then have to address the further question
whether enforcement of a release-dismissal agreement in the face of
substantial evidence of police misconduct would be compatible with
Rumery and Cain, notwithstanding that the evidence of misconduct
was not known, or reasonably knowable, by the prosecutor at the
time the prosecutor entered into what might appear, in retrospect,
to be an improvident agreement.

B.  Cain's Subjective Element: Prosecutorial Motivation
     Cain's subjective element requires that the public-interest
reasons cited by a party seeking to enforce a release be those that
actually motivated the prosecutor to conclude the release. That
is, under Cain, a court may not enforce a release if it finds that
the release was concluded for some reason different from that
presented as justifying enforcement, even if the court believes
that "some 'benefit'" would be "incidentally achieved" by
enforcement. Cain, 7 F.3d at 381.
     The Livingstones challenge the district court's determination
that there was not a genuine issue of material fact as to whether
the prosecutor's stated reasons for concluding the release-
dismissal agreement were his actual reasons for doing so. The
district court based this determination on the following: (1) the
charges against Mrs. Livingstone were filed the day after her
encounter with the police; (2) the charges "correspond to the
relevant conduct of Mrs. Livingstone according to the statement
taken from Carrie Livingstone, and the affidavit which supports the
complaint"; and (3) "discussions of settlement were initiated after
nearly three days of testimony in the criminal trial." App. at
379-80.
     We do not quarrel with these three propositions. But they do
not, in our judgment, constitute a sufficient predicate for the
determination that there is no genuine issue of material fact with
respect to whether the prosecutor's stated reasons were his real
reasons. As we have noted, on the record before this court it
appears not unlikely that the prosecutor was aware of substantial
evidence of police misconduct in the present case. This lends
credence to the inference that the prosecutor's decision to bring
charges against Mrs. Livingstone, the manner in which he conducted
the trial, and his decision to propose the conclusion of a release-
dismissal agreement to the Livingstones may have been motivated by
a desire to protect the relevant police officers and municipalities
from liability. Such a motivation would render the agreement
unenforceable. See Cain, 7 F.3d at 381.
     None of the three propositions relied on by the district court
eliminates the possibility that the prosecutor acted with an
improper motive. As to the fact that the charges against Mrs.
Livingstone were filed promptly, it is true that, had the charges
against Mrs. Livingstone been brought well after the incident, or
after the police learned that she intended to sue, this might have
indicated prosecutorial misconduct. See Lynch v. City of Alhambra,
880 F.2d 1122, 1128-29 (9th Cir. 1989). But the fact that the
charges against her were brought promptly does not, conversely,
demonstrate that no misconduct occurred. As to the fact that the
charges against Mrs. Livingstone were supported by independent
evidence, charges need not be fabricated in order for a release-
dismissal agreement to be the product of an improper prosecutorial
motive. The relevant question is instead whether the decision to
pursue a prosecution, or the subsequent decision to conclude a
release-dismissal agreement, was motivated by a desire to protect
public officials from liability. Finally, the fact that the
discussions of settlement were initiated "after nearly three days
of testimony in the criminal trial" is subject to many
interpretations. One interpretation which is at odds with summary
judgment is that a purpose of the trial was to erode the
Livingstones' resistance to signing a release.
     We therefore find that there is a genuine issue of material
fact as to whether the prosecutor's stated reasons for concluding
the release-dismissal agreement at issue in the present case were
his actual reasons. Thus, should the district court find that
information known to the prosecutor could have sufficed to
establish that there was a legitimate public-interest reason for
concluding a release-dismissal agreement, it should then conduct a
jury trial to determine whether the prosecutor's stated reasons for
concluding an agreement were his actual reasons for doing so.

V.  Voluntariness
A.  Standard of Proof of Voluntariness
     The district court instructed the jury that the defendant's
burden of proof in establishing the voluntariness of the release-
dismissal agreement was one of "preponderance of the evidence."
The Livingstones challenge that instruction, arguing that the
standard should have been one of "clear and convincing evidence."
We agree.
     In Rumery, the Supreme Court had no occasion to consider the
appropriate standard of proof; the language used by the Court in
finding the release-dismissal agreement at issue in that case
enforceable was consistent with either a preponderance standard or
a standard of clear and convincing evidence. Although we did not
explicitly address the question of the appropriate standard of
proof in Livingstone I, we did observe that oral release-dismissal
agreements should be subjected to particularly exacting judicial
scrutiny:
     Ordinarily, the existence and terms of [a release-dismissal]
     agreement can be resolved by reference to a written document.
     While we do not hold that as a matter of law an oral agreement
     to waive the right to sue in exchange for the dismissal of
     criminal charges can never be valid, the absence of a written
     release-dismissal agreement requires even more scrupulous
     review by the courts than otherwise. No published opinion of
     any of the courts of appeals after Rumery has even considered,
     much less sustained, an oral release-dismissal agreement.
     Indeed, the Rumery Court never mentioned the possibility of an
     oral release-dismissal agreement. Justice Stevens, at least,
     assumed that such agreements were written. See Rumery, 480
     U.S. at 417 n.22, 107 S.Ct. at 1205 n.22 ("A court may enforce
     such an agreement only after a careful inquiry into the
     circumstances under which the plaintiff signed the agreementand into
the legitimacy of the prosecutor's objective in
     entering into [it]." (emphasis added)) (Stevens, J.,
     dissenting).

12 F.3d at 1212. We then noted a number of advantages of written
agreements. These included the fact that they "allow the parties
more opportunity for deliberate reflection," id., and that a
written document facilitates negotiation as to the agreement's
terms, see id. at 1213. We also observed that a written release-
dismissal agreement may provide a subsequent court with evidence as
to "the parties' respective bargaining power." Id. For example,
if the attorney for the party forgoing civil claims prepared the
agreement, this may support the conclusion that the agreement was
voluntary; if the prosecutor did so, and if he presented it in a
manner that discouraged negotiation, this may support the
conclusion that it was not. See id.
     In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court
set forth its methodology in assigning standards of proof:

     The function of a standard of proof, as that concept is
     embodied in the Due Process Clause and in the realm of
     factfinding, is to 'instruct the factfinder concerning the
     degree of confidence our society thinks he should have in the
     correctness of factual conclusions for a particular type of
     adjudication.' In re Winship, 397 U.S. 358, 370, 90 S.Ct.
     1068, 1070, 25 L.Ed.2d. 368 (1970) (Harlan, J., concurring).
     The standard serves to allocate the risk of error between the
     litigants and to indicate the relative importance attached to
     the ultimate decision.

Id. at 423. The Court then placed the three standards of proof
within this broad framework. The least demanding standard, that of
a preponderance of the evidence, is appropriate to a "typical civil
case involving a monetary dispute between private parties." Id.
Society's concern with the outcome of such a case is "minimal";
thus, it is appropriate to adopt a standard that allocates the risk
of error between the litigants "in roughly equal fashion." Id.
The standard of proof beyond a reasonable doubt, by contrast, is
reserved for criminal cases, in which society wishes to "exclude as
nearly as possible the likelihood of an erroneous judgment." Id.
     Intermediate between these two standards is the one applicable
in cases in which "the interests at stake . . . are deemed to be
more substantial than mere loss of money." Id. at 424. The
standard has been known by a variety of names, but "usually employs
some combination of the words 'clear,' 'cogent,' 'unequivocal,' and
'convincing.'" Id. at 424. Examples of proceedings in which the
Court has found a heightened standard of proof to be appropriate
are proceedings to terminate parental rights, see Santosky v.
Kramer, 455 U.S. 745 (1982); involuntary commitment proceedings,
see Addington, 441 U.S. at 432; and deportation proceedings, seeWoodby v.
INS, 385 U.S. 276, 285-86 (1966).
     The Court has stated that, in civil actions between private
litigants, a standard of proof greater than one of a preponderance
of the evidence will only apply in cases in which "'particularly
important individual interests or rights are at stake.'" Grogan v.
Garner, 498 U.S. 279, 286 (1991) (quoting Herman & MacLean v.
Huddleston, 459 U.S. 375, 389-90 (1983)). Thus, a preponderance
standard suffices even in cases in which "severe civil sanctions"
may ultimately be imposed, if those sanctions do not implicate
particularly important interests or rights. See Huddleston, 459
U.S. at 389.
     We find that the enforcement of the oral release-dismissal
agreement at issue in this case would indeed implicate "important
individual interests or rights." Although the Livingstones'
section 1983 claims are in form claims for money damages,
underlying them is the Livingstones' interest in redressing a
possible violation of their constitutional rights. Moreover,
section 1983 actions, when successful, do more than compensate
injured plaintiffs: they serve the important public purpose of
exposing and deterring official misconduct, and thereby protecting
the rights of the public at large. In Rumery, all nine Justices
recognized the importance of ensuring that release-dismissal
agreements do not encroach upon this purpose. See Rumery, 400 U.S.
at 395; id. at 400 (O'Connor, J., concurring); id. at 419 (Stevens,
J., dissenting).
     A clear-and-convincing standard appropriately allocates more
of the risk of error associated with oral release-dismissal
agreements to those who seek to enforce them. As we noted in
Livingstone I, oral release-dismissal agreements raise particularly
significant questions of voluntariness, as the lack of a written
document may inhibit negotiation as to an agreement's terms and
render it difficult for prospective parties to reflect on those
terms. We also observed in Livingstone I that an oral agreement
ordinarily contains less evidence as to the course of the parties'
negotiations than does a written agreement. As a result, there is
a greater risk of error in a jury's evaluation of whether an oral
release-dismissal agreement was concluded voluntarily.
     We think that those seeking to enforce a release-dismissal
agreement should bear this greater risk. Indeed, a "clear and
convincing" standard will encourage prosecutors Ä who are likely to
have comparatively frequent contact with release-dismissal
agreements, and who have an interest in ensuring that those
agreements are later found to be enforceable Ä to ensure that
release-dismissal agreements are, whenever possible, written down.
The standard will therefore have the salutary effect of reducing
the overall risk of misunderstandings in the conclusion of release-
dismissal agreements, and increasing the accuracy of juries'
decisions as to whether a release-dismissal agreement was concluded
voluntarily.
     Since, when this case was first remanded, the parties
challenging the enforceability of the Livingstones' oral release-
dismissal agreement were only required to establish the
voluntariness of the agreement under a preponderance-of-the-
evidence standard, the jury's finding of voluntariness will be
vacated. If, on this remand, it again becomes necessary to address
the issue of voluntariness, the more demanding clear-and-convincing
standard will be utilized.

B. Instruction on Existence of a Legitimate Criminal Justice
Objective.
     The Livingstones sought to have the district court instruct
the jury that one of the factors for it to consider in determining
whether they voluntarily entered into the release-dismissal
agreement was "whether there is a l[e]gitimate criminal justice
objective to support [the agreement's] validity." Livingstones'
Proposed Jury Instruction 10, App. at 394. The district court
declined to so instruct; the Livingstones contend that this was
error.
     Evidently the rationale for the proposed instruction was that
the Livingstones sought to argue to the jury that elements of the
public-interest analysis should enter into the jury's evaluation of
whether the agreement was voluntary. We see no reason why the
public-interest issue is pertinent to the jury's consideration of
the voluntariness issue, and we therefore think the district court
was correct in concluding that such an instruction would have been
inappropriate.

C.  Admission of Ceraso's Testimony.
     The district court found that, by challenging the release-
dismissal agreement, the Livingstones had waived any claim of
attorney-client privilege as to the testimony of Ceraso, Mrs.
Livingstone's lawyer at her criminal proceeding. Accordingly, the
district court permitted Ceraso to be deposed, and then allowed him
to be called as a witness at the voluntariness proceeding. App. at
101. On appeal, the Livingstones argue that this decision was
erroneous. We disagree.
     "The attorney-client privilege is waived for any relevant
communication if the client asserts as a material issue in a
proceeding that: (a) the client acted upon the advice of a lawyer
or that the advice was otherwise relevant to the legal significance
of the client's conduct." Restatement of the Law Governing Lawyers
130(1) (Final Draft No. 1, 1996); see also Rhone-Poulenc Rorer
Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994) ("[A]
party can waive the attorney client privilege by asserting claims
that put his or her attorney's advice in issue in the
litigation."). The Livingstones' complaint states that Washington
Township "may seek to assert as a possible defense a purported
agreement not to sue and/or release," but that the Township "will
not be able to sustain its burden that the same was entered into in
a knowing and voluntary fashion." App. at 21. The complaint goes
on to state that the agreement was not "knowing" because
"[p]laintiffs, at the time, were unaware that the same could be
interpreted as foregoing a damage claim. They specifically were
unaware of the precise extent of any claimed waiver." App. at 22.
The Livingstones made similar claims before the district court and
on appeal.
     Mrs. Livingstone was represented by counsel at her criminal
trial; her attorney played a central role in the negotiation of the
release-dismissal agreement. Under Rumery, the advice of counsel
is an explicit, and important, element of the voluntariness
analysis. See Rumery, 480 U.S. at 394; id. at 401 (O'Connor, J.,
concurring) (citing, as one of the factors bearing on the
enforceability of a release-dismissal agreement, "importantly,
whether the defendant was counseled"). Mrs. Livingstone's
assertion that she did not appreciate the release-dismissal
agreement's legal implications is tantamount to a claim that her
attorney did not give her accurate legal advice. It would be
unfair to allow her to make this claim without permitting the
opposing parties to investigate her attorney's version of the
relevant events. See United States v. Bilzerian, 926 F.2d 1285,
1292 (2d Cir.), cert. denied, 502 U.S. 813 (1991) (holding that a
party who asserts a claim that "in fairness requires examination of
protected communications" thereby waives the attorney-client
privilege as to those communications). In the terms of the draft
Restatement, Mrs. Livingstone has effectively asserted that the
advice provided to her by her attorney is "relevant to the legal
significance of [her] conduct." Accordingly, we find no error in
the district court's ruling that the attorney-client privilege had
been waived.

D.  Exclusion of Expert Testimony.
     The Livingstones challenge the district court's decision, at
the voluntariness proceeding, to exclude the testimony of their
expert, John Peters, who had prepared a report addressing the
underlying liability of the police officers and of Washington
Township. Mrs. Livingstone's attorney, Ceraso, had testified that
he had advised Mrs. Livingstone to conclude a release-dismissal
agreement because any damages that she would recover in a
subsequent civil suit would have been largely, or completely,
offset by the damages that the police officers would recover,
assuming that they filed counterclaims. App. at 767. The
plaintiffs sought to introduce Peters' testimony in order to
demonstrate that Ceraso's advice had been inaccurate. The district
court found that Peters' testimony was inadmissible under Rule 702,
because it would not assist the trier of fact to understand the
evidence, and under Rule 403, because of prejudice, confusion of
the issues, misleading the jury, and waste of time. App. at 777.
     We will address only the district court's application of Rule
403, which we find was entirely appropriate. Peters' report was
quite likely to be prejudicial; it asserted, in considerable
detail, that Washington Township and the police-officer defendants
had violated Mrs. Livingstone's civil rights. A jury presented
with a substantial amount of information on the merits of an
underlying civil rights action might well look to those merits in
making its decision on the distinct Ä and distinctly different Ä
issue of voluntariness, thus creating a significant risk of
prejudice.
     Rule 403 requires that a court balance the prejudicial effect
of proposed evidence against its probative value. If evidence that
a party to a release-dismissal agreement had received improper
legal advice is of sufficient probative value, this analysis may
well weigh in favor of admissibility. The probative value of
Peters' testimony was not, however, high, as it did not engage
Ceraso's testimony directly. Ceraso's advice to Mrs. Livingstone
had addressed the net award of damages that she could expect from
her potential civil suit against the police and their potential
civil suit against her. Peters' report only barely touched on the
merits of a possible civil suit by the police against Mrs.
Livingstone, and did not discuss the likely award of damages in
either suit. Thus, his testimony would not have greatly helped
the jury to understand the correctness of Ceraso's advice.

E.   Exclusion of Trial Transcript.
     At the trial of the voluntariness issue, counsel for the
Livingstones sought to introduce into evidence an exchange between
Heneks and Judge Cicchetti that occurred the day before the
release-dismissal agreement purportedly was concluded. The
district court found that this exchange was not relevant, and
excluded it. The Livingstones appeal this ruling, asserting that
Judge Cicchetti's comments in the exchange that they sought to
introduce resembled his later remarks at the release-dismissal
colloquy, and that the Livingstones might have been misled into
believing that he was simply repeating his earlier comments. We
agree with the district court's finding that this exchange is not
relevant. Judge Cicchetti's comments in the portion of the
exchange presented to the district court, App. at 790, bore little
resemblance to his later comments at the release-dismissal
proceeding, Appellees' App. at 32.

VI. Application of Pennsylvania Law to the Livingstones' State-Law
Claims.
     As we noted in our discussion of the procedural history of
this case, the district court dismissed a number of the
Livingstones' state-law claims on grounds, such as the statute of
limitations, unrelated to the release-dismissal agreement. The
dismissal of those claims is not before us on appeal. The
remaining state-law claims included claims of assault and battery
against defendants Monack and Snyder; a claim of intentional
infliction of emotional distress against defendants Monack, Snyder,
and Moody; and a claim of conversion against all defendants.
     Neither the parties nor the district court have discussed what
standard applies to determine the enforceability of the release-
dismissal agreement as to the state-law claims. Instead, they have
apparently assumed that the standard applicable to these claims is
no different from that applicable to section 1983 claims. This is
not necessarily true; the question whether the Livingstones have
waived their claims under state law is itself one of state law,
see Livingstone I, 12 F.3d at 1210 n.6, and state law cannot be
assumed to parallel federal law on this question.
     In Livingstone I, we observed that the courts of Pennsylvania
"frequently follow the principles set forth in the Restatement [of
Contracts]," id., and suggested that the Pennsylvania Supreme
Court might be likely to do as the United States Supreme Court did
in Rumery, and look to the public-interest analysis in the
Restatement of Contracts to determine when it is appropriate to
enforce a release-dismissal agreement. See id. However, we did
not then have occasion to decide precisely what standard
Pennsylvania would apply to the enforcement of a release-dismissal
agreement. That question is now before us. Indeed, that question
subsumes two distinct questions: (1) What standard would
Pennsylvania courts be likely to apply to determine whether the
enforcement of a release-dismissal agreement is in the public
interest? (2) What standard would Pennsylvania courts be likely to
apply to determine the voluntariness of a release-dismissal
agreement?

A.   Public Interest
     We have discovered no reported Pennsylvania cases addressing
the question of when, if ever, it is in the public interest to
enforce a release-dismissal agreement. Our analysis of the caselaw
and policies of the Commonwealth of Pennsylvania has persuaded us,
however, that the Supreme Court of Pennsylvania would apply a
public-interest standard resembling that applied under federal law.
     The courts of Pennsylvania have long declined to enforce
contracts that are contrary to public policy. See, e.g., Kuhn v.
Buhl, 96 A. 977 (Pa. 1916) (finding unenforceable as against public
policy an agreement between bidders for public lands under which
one of them would, in exchange for a fee, withdraw its bid). After
Kuhn, the Supreme Court of Pennsylvania accepted the standard set
forth in section 320(1) of Tentative Draft No. 12 of the
Restatement (Second) of Contracts (March 1, 1977) as its standard
for the nonenforcement of contracts as against public policy. SeeCentral
Dauphin School District v. American Casualty Co., 426 A.2d
94, 96 (Pa. 1981). Section 320(1) of the Tentative Draft was to
emerge (with one minor stylistic alteration not relevant here) as
Section 178(1) of the Restatement (Second) as finally adopted. It
provides that "[a] promise or other term of an agreement is
unenforceable on grounds of public policy if legislation provides
that it is unenforceable or the interest in its enforcement is
clearly outweighed in the circumstances by a public policy against
the enforcement of such terms." Restatement (Second) of Contracts 178(1)
(1981). We may reasonably conclude Ä as the Pennsylvania
Superior Court has already concluded, see Donegal Mutual Insurance
Co. v. Long, 564 A.2d 937, 942 (Pa. Super. 1989) Ä that the
Pennsylvania Supreme Court, having accepted tentative section
320(1) in Central Dauphin, would now accept permanent section
178(1).
     In Rumery, the Supreme Court drew upon section 178(1) to
fashion its federal common-law rule that a release-dismissal
agreement will be unenforceable "if the interest in its enforcement
is outweighed in the circumstances by a public policy harmed by
enforcement of the agreement." Rumery, 480 U.S. at 392 & n.2. We
think that the Pennsylvania Supreme Court would not only draw on
section 178(1) in considering the enforceability of a release-
dismissal agreement but, in construing that section's open
language, would look to Rumery and its progeny in the courts of
appeals as persuasive authority. The Pennsylvania Supreme Court
would, of course, also consider the policies of the Commonwealth of
Pennsylvania, as expressed in the Commonwealth's statutes and
common law. The Pennsylvania Supreme Court has treated
Pennsylvania's common law as an important instrument for curbing
official misconduct, paralleling at the level of state law the
United States Supreme Court's view of the policies underlying
section 1983. See, e.g. Supervisors of Lewis Township v. Employers
Mutual Casualty Co., 523 A.2d 719, 722 (Pa. 1987) (finding that
permitting insurance coverage of willful or fraudulent conduct on
the part of a public official is contrary to Pennsylvania law and
public policy, as personal financial liability is intended to deter
official misconduct). We therefore conclude that the Pennsylvania
Supreme Court would subject agreements that purport to waive tort
liability to at least as careful scrutiny as the United States
Supreme Court has applied to agreements purporting to waive
liability under section 1983.
     The Livingstones argue that the law of the Commonwealth of
Pennsylvania strictly limits the private resolution of criminal
charges. In support of this claim, they cite Pennsylvania Rule of
Criminal Procedure 314, a rule permitting a form of court-
supervised settlement in certain types of criminal cases. That
rule provides:
     When a defendant is charged with an offense which is not
     alleged to have been committed by force or violence or threat
     thereof, the court may order the case to be dismissed upon
     motion and a showing that:

              (a) the public interest will not be adversely
              affected;
              (b) the attorney for the Commonwealth consents to
              the dismissal;
              (c) satisfaction has been made to the aggrieved
              person or there is an agreement that satisfaction
              will be made to the aggrieved person;
              (d) there is an agreement as to who shall pay the
              costs.

Pa. R. Crim. P. 314. The Livingstones assert that the fact that
this rule does not permit settlements in the case of offenses
"alleged to have been committed by force or violence or threat
thereof" implies that such settlements are disfavored, or perhaps
prohibited, under Pennsylvania law.
     We are not persuaded that Rule 314 demonstrates that
Pennsylvania would not permit release-dismissal agreements in other
situations. A prosecutor who has sound public-interest reasons for
declining to go forward with a prosecution, or for terminating a
prosecution after it has begun, must have the authority to do so.
As a corollary of this authority, a prosecutor presumably also has
the authority to condition a dismissal on some undertaking by the
defendant.
     We find, however, that Rule 314 demonstrates that the courts
of Pennsylvania would be likely to subject release-dismissal
agreements to close scrutiny. Further, the fact that Rule 314(a)
requires that a judge determine that "the public interest will not
be adversely affected" by a dismissal demonstrates the
Commonwealth's commitment to reviewing release-dismissal agreements
for their impact on the public interest. The Pennsylvania courts
have also read Rule 314's limitations on the circumstances in which
criminal prosecutions may be dismissed to indicate that "the law
does not favor out-of-court compromise over prosecution."
Commonwealth v. Pettinato, 520 A.2d 437, 439 (Pa. Super. 1987)
(concluding that an offer from a criminal defendant to pay a
complainant a fee in exchange for her agreement not to testify was
admissible into evidence in the defendant's criminal trial; because
Rule 314 strictly limits consensual dismissals in criminal cases,
the civil rule of evidence barring the admission of offers of
settlement into evidence did not apply).
     In summary, then, we find that Pennsylvania would be likely to
permit release-dismissal agreements to be enforced in some cases,
but would monitor them closely to ensure that their enforcement is
in the public interest. The federal rule, which places the burden
of proving that a release-dismissal agreement is in the public
interest on those seeking to enforce the agreement, has the same
goals. Pennsylvania would therefore be likely to apply a very
similar rule.

B.  Voluntariness
     The Court observed in Rumery that private citizens are
permitted to waive their constitutional rights in many
circumstances. For instance, criminal defendants may waive
constitutional rights through plea bargaining, and the resulting
agreements are ordinarily enforced if they are voluntary.
Voluntary release-dismissal agreements, Rumery reasoned, should
therefore also be permitted. See 480 U.S. at 393-94.
     Pennsylvania, too, permits plea bargaining, see, e.g.,
Commonwealth v. Spence, 627 A.2d 1176, 1184 (Pa. 1993), and will
uphold a guilty plea if it is knowing and voluntary, seeCommonwealth v.
Alston, 373 A.2d 741, 743 (Pa. 1977). We believe
that the Pennsylvania Supreme Court would be likely to follow a
line of logic similar to that of the Court in Rumery, and permit
release-dismissal agreements upon a showing of voluntariness.
     However, we anticipate that the Pennsylvania Supreme Court
would be very attentive to how the voluntariness of a release-
dismissal agreement is established. Such judicial attentiveness
would be called for both because of the danger that such agreements
will be concluded in improper circumstances, and because
Pennsylvania has a policy of declining to enforce contracts
concluded under duress or threat of prosecution. See, e.g.,
Germantown Mfg. Co. v. Rawlinson, 491 A.2d 138, 143 (Pa. Super.
1985) (applying a rule that threats of criminal prosecution
constitute duress rendering a contract voidable, and stating: "It
is an affront to our judicial sensibilities that one person's
ability to seek another's prosecution can be bartered and sold the
same as commodities in the market place. It is even more repugnant
when the foul stench of oppression pervades the transaction.").
For reasons we have already discussed, the voluntariness of oral
release-dismissal agreements is especially likely to be
problematic, and Ä precisely because such agreements are not
evidenced by a writing Ä determinations of the voluntariness of
such agreements are particularly likely to be unreliable. Seesupra at 35
- 42. Accordingly, we predict that the Pennsylvania
Supreme Court, when faced with the question, will subject the
voluntariness of oral release-dismissal agreements to a heightened
standard of proof, and we therefore conclude that the voluntariness
of the release-dismissal agreement now before us must be
demonstrated by clear and convincing evidence.

VII.  Conclusion.
     For the reasons set forth above, we will vacate the judgment
of the district court and remand for further proceedings in
accordance with this opinion.
------------------------------------------------
