Free Motion in Limine - District Court of Arizona - Arizona

l Jennifer Basola (#23158)
2 KROHN & MOSS, LTD.
5055 Wilshire Blvd., Suite 300
3 Los Angeles, CA 90036
2 (323) 988~2400
(866) 385-5215 (facsimile)
5 Attorney for Plaintiff
6 UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8 LANE SENNETT ) Case No. CV O4-016l PHX ROS
9 )
W Plaintiff, ) MOTIONS IN LIMINE TH
vs. ) PROBATIVE VALUE OF
ll ) CRIMINAL CONVICTION THAT I
22 WORKHORSE CUSTOM CHASSIS, ) OVER TEN (10) YEARS OLD I
LLC, ) SUBSTANTIALLY OUTWEIGHE
is Defendant. ) BY PREJUDICE
ie )
` ) (Filed Under Seal)
is )
26 I. STANDARD OF REVIEW
ry A motion in limine is a way to obtain an order from the Court enjoining a
ll opponent from using or mentioning certain prejudicial evid.ence before the jury during th
ie -
trial. 20 Ani. lr. Trials 441 §2. The purpose of a motion in limine is to avoid disclosin
20
21 to the jury prejudicial matters which may compel a mistriai. Stare v. Berger, l08 Ariz.
22 396, 499 P.2d 152 (1972). Evidence is admissible in a trial only its probative value i
23 -
substantially outweighed by the danger of prejudice or confusion of the issues. State v.
24
25 Hensley, 142 Ariz. 598, 691 P.2d 689 (1984). "Altl1ougl1 relevant, evidence may b
` 26 excluded if its probative value is substantially outweighed by the danger of unfai
27 prejudice, confusion of the issues, or misleading the jury, or by considerations of undn
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delay, or needless presentation of cumulative evidence? Federal Rule of Evidence 403.
_
Case 2:04—cv—00161—FlOS Document 198 Filed 08/25/2006 Paget 0f4

l A motion in Zimine to exclude evidence should be granted if the evidence sought to b `
2 excluded is clearly inadmissible for any purpose. Plane v. EJ Bmch & Sons, Inc., 86 I
3
4 F.Supp. 67, 69 (N .D. 111.1994). Unfair prejudice means an undue tendency to promote
5 decision on an improper basis, such as "prejudging” a cause on the basis of irrelevan
6 extraneous factors. 1
rs; II. THE PROBATIVE VALUE OF A CRIMINAL CONVICTION THAT I
OVER TEN (10) YEARS OLD IS SUBSTANTIALLY OUTWEIGHED B
9 PREJUDICE.
18 Evidence of a conviction is not admissible if a period of more than ten years ha
i; elapsed since the date of the conviction unless an adverse party is given sufficient writte p
I3 notice so that the use of such evidence may be contested. l’ed.R.Evid. 609(b). See als
M Powell v. Levit, 640 F.2d 239 (9th Cir. 1981). To render prior convictions more than te
Q; years old admissible, a district court is required to make findings of specific facts an
17 circumstances justifying introduction of those staie convictions. U S. v. Portillo, 633
lg F.2d l3l3 (9m Cir. 1980); Sibley v. Jejjireys, 264 P.2d 831 (holding [g]eneral1y, for th
19 purpose of impeachment a showing may be made of prior conviction of a felony unless i
ji is so remote that it cannot reasonably cast a reflection upon the witness’ credibility, an
22 question of reinoteness is largely a matter for discretion ofthe court, considering not onl
23 the time element, but length of imprisonment, subsequent conduct, age and intervenin
3 circumstances), Stare v. Bur/cer, 385 P.2d 5}.6, (Witness may be impeached by showin
26 prior felony conviction except where prior felony conviction is so remote that it canno
` 27 reasonably cast reflection on credibility).
28
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1 Further, the Federal Rules of Evidence requires the judge to determine if tb
2 probative value is substantially outweighed by the danger of unfair prejudice.
3
I 4 Fed..R.Evid. 403. See also US. v. Dil/arco, C.A.7 (Ill.) 1973, 484 l*.2d 670, (holding I
5 absence of rule limitation, proper test with respect to admission for irnpeachmen
6 purposes of prior conviction is whether trial judge believes that prejudicial effect o
Q; impeachment far outweighs probative relevance of the prior conviction to issue o
9 credibilitl/)3 US. v. Lipscomb, C.A.D.C.l983, 702 F.2d 1049, 226 U.S.App.D.C. 312,
10 (holding “{u]nder this rule governing admissibility of prior conviction of witness fo
I; impeachment purposes, district court must carefully and thoughtfully conside
is information before it to determine if probativeness outweighs prejudice to defendant.
M Therefore, "evidence of a conviction that is more than ten years old is not adinissibl
1; unless the court determines, in the interest of justice, that ‘the probative value of th
17 conviction supported by specific facts and circumstances substantially outweighs it
18 prejudicial effect’ and the proponent has given the adverse party sufficient advanc
gi written notice of the intent to use such evidence to give the adverse party a fai
2; opportunity to contest admissibility? Friedland, Steven, Evidence Law and Practice pg.
22 93. Consequently, ‘°[u]nlike the test under Rule 403, the balancing test here strong!
2; favors exclusion, since the burden is placed on the proponent to show by ‘specitic fact
25 and circu1nstances’ that, despite the age of the conviction, its probative valu
26 substantially outweighs the risk of prejudice? Id.
27 WHEREFORE, Plaintiff requests this Court enter an Order barring Defendan
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1 Workhorse from raising as issues prior convictions of any witness that is over 10 year E
2 oid.
3
4 RESPECTFULLY SUBMITTED on this 25th day of August, 2006.
5 By: s/Jennifer Basoia
6 Jennifer Basola
A KROHN & MOSS, LTD.
7 lil West Monroe, 711
8 Phoenix, AZ 85003
Attorney for Piaintiff(s)
9
I0 Filed under seal on this 25th day of August, 2006, with:
ii United States District Court CM/ECF system
E2 Copy e—mail delivered on this 25th day of August, 2006, to:
is `
Hon. Roslyn O. Silver
M United States District Court, District of Arizona
is Sandra Day O‘Connor U.S. Courthouse
40i West Washington Street
*6 Phoenix AZ ssoos
ii
Copy emailed and sent via US mail this 25th day of August, 2006 to:
_ is
19 1\/ir.Negatu Molla
Attorney
_ 20 Bowman and Brooke, LLP.
21 2901 North Central Avenue, Suite 1600
Phoenix AZ 85012-2761
22
23 ms/Toni Estrella
Toni Estrella C ·
24
25
26
27
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