Free Memorandum - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Melissa R. Berren (020993) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 3 (602) 530-8407 4 Attorneys for Defendants 5 6 7 8 Matthew Shaffer,
! " # $ % &' ) * # &" # # #

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CIV-03-2344-PHX-FJM DEFENDANTS' TRIAL MEMORANDUM RE: INADMISSIBILITY OF NEWSPAPER ARTICLES

9 10 vs.

Plaintiff,

11 State of Arizona Citizens Clean Election Commission; Colleen Connor and Chad 12 Jacobs, husband and wife; and Jessica Funkhouser and Lindy Funkhouser, husband 13 and wife; John Does I-X; Jane Does I-X, 14 15 16 Defendants.

(% #

Defendants CCEC and Colleen Connor, by and through undersigned counsel, file

17 their trial memorandum explaining that the newspaper and other media articles listed by 18 plaintiff as Exhibits 10, 20 and 69 are inadmissible in evidence. 19 The seminal Ninth Circuit case addressing the admissibility of newspaper articles

20 is Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991). Recognizing that courts 21 regularly find newspaper articles inadmissible hearsay as to their content, the Ninth 22
Case 2:03-cv-02344-FJM Document 93 Filed 09/12/2005 Page 1 of 3

1 Circuit took the additional step of determining whether newspaper articles are admissible 2 even under the requirements of Federal Rules of Evidence, Rule 803(24) (the "Residual 3 Exception," now Rule 807). Id. Although the court found that the particular articles in 4 that case had circumstantial guarantees of trustworthiness due to the extraordinary 5 circumstances of that case, the Court decided to exclude the articles because of the "best 6 evidence" requirement that "the statement be more probative on the point for which it is 7 offered than any other evidence which the proponent can procure through reasonable 8 efforts." Id. 946 F.2d at 644. In other words, the Court found that the newspaper articles 9 were not the best available evidence, and rather that the testimony from the reporters 10 themselves would have been better. Id. 11 As in Larez, better than the use of the newspaper articles in this case would be

12 testimony from the reporters who wrote the articles. Plaintiff has not made reasonable 13 efforts to procure testimony of these reporters. 14 If plaintiff desires to advise the jury that there was press coverage of the Salmon

15 Campaign's late reporting of expenditures and that plaintiff spoke to the news media, 16 then that can be accomplished without admitting prejudicial hearsay. The number of 17 articles lumped together from different reporters and sources by plaintiff demonstrates 18 that plaintiff desires to use these out of court statements to improperly influence the jury. 19 For these reasons, defendants request that the Court deny any request by the plaintiff to 20 admit any newspaper articles into evidence. 21 22
Case 2:03-cv-02344-FJM Document 93

2Filed 09/12/2005

Page 2 of 3

1 2 3 4 5 6

RESPECTFULLY SUBMITTED this 12th day of September, 2005. GALLAGHER & KENNEDY, P.A. By: s/Melissa R. Berren______________ Jay A. Zweig Melissa R. Berren 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants

7 COPY of the foregoing electronically transmitted via the U.S. District Court 8 Electronic Case Filing system this 12th day of September, 2005 to: 9 Richard J. Harris, Esq. 10 Richard J. Harris Law Offices, P.C. 4445 E. Holmes Avenue, Suite 106 11 Mesa, Arizona 85206-3398 Co-Counsel for Plaintiff 12 David C. Larkin, Esq. 13 David C. Larkin, P.C. 4645 S. Lakeshore Drive, Suite 6 14 Tempe, Arizona 85282-3747 Co-Counsel for Plaintiff 15 s/Mary I. Outt 568-0140/1297327 16 17 18 19 20 21 22
Case 2:03-cv-02344-FJM Document 93

3Filed 09/12/2005

Page 3 of 3