Free Response to Motion - District Court of Arizona - Arizona

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COLLINS & COLLINS L.L.P. By: JOSEPH E. COLLINS Attorneys for Plaintiff Arizona Bar Number 018289 10801 North 32nd Street, Suite 3 Phoenix, Arizona, 85028 (602) 788-7227 ================================================================= IN THE UNITED STATES DISTRICT COURT

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 "The primary purpose of a motion in limine is to avoid disclosing to a jury a 23 prejudicial matter which may compel a mistrial. See also Davis, The Motion in Limine, 5 24 Washburn L.J. 232 (1966) and 46 Neb.L.Rev. 502 (1967)." State v. Superior Court, 108 25 26 27 28 Ariz. 396, 397, 499 P.2d 152, 153 (1972). If evidence is relevant, it is admissible. See Rule 401 of the Federal Rules of Civil Procedures. A motion in limine "should not, except upon 1 FOR THE DISTRICT OF ARIZONA ================================================================= KENNETH & TOWANDA LYON, ) for TARALYN D. LYON ) Case Number CV03-2306PHX-JAT ) Plaintiff, ) ) RESPONSE TO MOTION IN LIMINE vs. ) RE: TESTIMONY OF T. LYON ) ) ESTRALLA FOOTHILLS ) HIGH SCHOOL, et al. ) ) Defendants. ) ================================================================= COMES NOW Plaintiffs by and through their attorneys, COLLINS & COLLINS, L.L.P. by JOSEPH E. COLLINS, and responds to Defendants' motion in limine attempting to exclude certain testimony of Towanda Lyon, as follows: POINT ONE

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a clear showing of non-admissibility, be used to reject evidence." State v. Johnson, Iowa, 183 N.W.2d 194, 197 (1971) and Davis, The Motion in Limine, 5 Washburn L.J. 232 (1966) and 46 Neb.L.Rev. 502 (1967). Defendant has not made a clear showing that the evidence at issue is not admissible. Defendants claim that Towanda Lyon should not be allowed to testify about how the actions of Defendants affected her family and that only testimony as to how Defendants' action affected Tara Lyons should be permitted. Defendants, however, ignore the fact that Tara Lyon is a member of Towanda Lyons' family and that testimony about how Defendants affected Towanda Lyons' family is evidence of how Tara Lyons was affected as part of that family. POINT TWO Defendants rely on Rule 403 of the Federal Rules of Civil Procedure to exclude evidence of how Defendants' actions against the family harmed Tara Lyons. While Plaintiffs concede that the issue is damages to Tara Lyons, it does not follow that evidence of family impact is not relevant. It is. To excluded it, Defendants must show that such evidence creates an extraordinary situations and some how unduly prejudices them. This, they cannot do. The motion of Defendants does not present such a situation because the evidence which Defendant s seeks to exclude has a presumption of admissibility unless Defendants can show "substantial" likelihood of "unfair prejudice". This concept is explained in the Committee Notes to Rule 403: There is a presumption of admissibility of evidence. Rule 403 provides that where the probative value of evidence is substantially outweighed by the danger of unfair prejudice, confusion, or undue consumption of time, the evidence may be excluded even though it is relevant. The drafters of the Rule provided that the probative value must be "substantially" outweighed by these other factors before evidence is excluded. "Substantially" is not defined and there is nothing in the Advisory Committee's Note or in the congressional material that indicates exactly what this word is intended to mean.

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But the policy of the Rule is that if the balance between probative value and countervailing factors is close, the Court should admit the evidence. See, e.g., United States v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990) (under Rule 403, the balance "should be struck in favor of admissibility"); United States v. Krenzelok, 874 F.2d 480 (7th Cir. 1989) (where both probative value and prejudicial effect are high, Rule 403 requires admission). In other words, there is a presumption in favor of admitting relevant evidence. In order to overcome this presumption, the negative countervailing factors must be demonstrably greater than the probative value of the evidence. See, e.g., United States v. Mende, 43 F.3d 1298 (9th Cir. 1995) Rule 403 is "an extraordinary remedy to be used sparingly" and "the danger of prejudice must not merely outweigh the probative value of the evidence, but must substantially outweigh it."). The rationale is that exclusion amounts to a total deprivation of the offeror's probative evidence, while admission may be accompanied by redaction, limiting instruction, or other safeguard by which both the objector and the offeror can ordinarily be accommodated. (Bold and underlining added.) POINT THREE Defendants claim that this evidence will confuse the jury, but does not say how. It is within the common experience of jurors to understand that impact on a family is impact on the individual members of that family. The testimony of her mother is ground work so that the jury can understand how harm to the family is harm to Tara. There is nothing "unduly prejudicial" about this. The key to a Rule 403 motion as explained by in the Committee Notes is "unfairness" of which Defendants have shown none: Evidence is not "prejudicial" merely because it is harmful to the adversary. After all, if it didn't harm the adversary, it wouldn't be relevant in the first place. Rather, the Rule refers to the negative consequence of "unfair" prejudice. Unfair prejudice is that which could lead the jury to make an emotional or irrational decision, or to use the evidence in a manner not permitted by the rules of evidence. As the Court stated in Ballou v. Henri Studios, 656 F.2d 1147 (5th Cir. 1981): "[U]nfair prejudice as used in Rule 403 is not to be equated with testimony simply adverse to the opposing party. Virtually all evidence is prejudicial or it isn't material. * * * Unfair prejudice within the context of Rule 403 means an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one." POINT FOUR These are reasonable inferences to be drawn from the evidence that when a family is harmed, so is its members. Relevant evidence is admissible and under Rule 401 of the 3

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Federal Rules of Evidence includes any "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence". It does not have to prove a fact. Evidence "does not by itself have to prove the ultimate proposition for which it is offered; nor does it have to make that ultimate proposition more probable than not. It is enough that the evidence has a tendency to make a consequential fact even the least bit more probable or less probable than it would be without the evidence". Douglass v. Eaton Corp., 956 F.2d 1339 (6th Cir. 1992) WHEREFORE, Defendants' motion should be denied or, at a minimum, the court should reserve ruling until the evidence is fully developed at trial. Dated and signed this 29th day of March, 2006.

COLLINS & COLLINS L.L.P /s// 018289 jec ___________________________ JOSEPH E. COLLINS Attorney for Plaintiff

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 CERTIFICATE OF DELIVERY THIS IS TO CERTIFY that a true and correct copy of the foregoing was mailed, postage prepaid, to the following individuals on the 31th day of March, 2006 Ms. Georgia A Staton Attorney at Law Jones Skelton & Hochuli 2901 N Central Suite 800 Phoenix, AZ 85012-2703 //s// 018289 jec ________________________________ JOSEPH E. COLLINS

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