Free Response to Motion - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. NO. CV03-1892-PHX-ROS DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION IN LIMINE NO. 13 RE: PLAINTIFF'S POST-ARREST, POST-INJURY STATEMENTS

Defendants Griffin, Dunn, Lynde and Monson, through counsel, submit this Response to Plaintiff's Motion in Limine No. 13 Regarding Plaintiff's Post-Arrest, PostInjury Statements. Plaintiff's Motion in Limine must be denied because: (1) Plaintiff's statements at the scene are admissions under Rule 801; (2) the statements are relevant to her motivation for filing the subject lawsuit against the Defendants; and (3) the statements should be considered by the jury to assess Plaintiff's bias and credibility. This Motion is supported by the following Memorandum of Points and Authorities, the pleadings on file in the case and any oral argument the Court may hold in this matter.

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MEMORANDUM OF POINTS AND AUTHORITIES
I. Introduction. Plaintiff's Motion seeks to exclude "any reference to Teresa August's post-arrest and post-injury statements to the officers regarding her intention to file a civil lawsuit and name-calling." Plaintiff asserts that the statements were a "reaction" and not relevant to the issue of whether excessive force was used in the case. II. Legal Argument. A. Plaintiff's Statements Are Admissions Under Rule 801.

Fed. R. Evid. 801 states that a "party's own statement, in either an individual or a representative capacity" is an admission by a party opponent and not considered hearsay. Here, the statements made by Plaintiff that she would have the "officers' badges" and that she would sue the Defendants are party admissions, not hearsay, and are admissible under Rule 801. B. Plaintiff's Post-Arrest Statements are Relevant.

Plaintiff relies on U.S. v. Thomas, 86 F.3d 647 (7th Cir. 1996), to support her argument that Plaintiff's "threats" would be prejudicial and therefore not admissible. In Thomas, a criminal case, the prosecutor introduced evidence of a threat toward its own witness to "enhance [] the overall believeability of the witness by showing that they testified against the defendants in the face of threats." Id. at 654. The Court held that the probative value of the threat evidence was limited because no evidence was presented as to why the threat was needed to "boost" the witness' testimony. Further, the evidence was

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not found to be probative because it was only "admitted to permit the jury to evaluate fully the general `credibility' and `bias'" of the prosecution witness. Id.1 The Court distinguished the holding of Thomas in U.S. v. Thompson, 359 F.3d 470 (Ind. 2004). In Thompson, the Court found that introduction of "threat" evidence to demonstrate bias during the cross-examination of a witness was appropriate. "In such a context, the probative value of such evidence is far more evident. For instance, evidence of bias, including evidence of a threat, to challenge the credibility of a witness who has

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 the principal means by which the believability and truth of witness testimony is tested. To The cases cited in Thomas also deal with the use of threats to "boost" or "enhance" the testimony of the witness. See Dudley v. Duckworth, 854 F.2d 967, 970-71 (7th Cir. 1988) (no indication that the prosecution's witness was nervous, thus no need to introduce "threat" evidence on direct examination other than to prejudice the defendant); Gomez v. Ahitow, 29 F.3d 1128, 1139 (7th Cir. 1994) (holding that the prosecution was permitted to present evidence of "threats" on direct examination to explain that a witness waited to provide information to the police because of her fear of the consequences); United States v. DeLillo, 620 F.2d 939, 945-46 (2d Cir. 1980) (the government can introduce evidence of threats to explain contradictory or inconsistent testimony by witnesses).
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made an inconsistent statement simply does not raise the same concerns as evidence of a threat offered, in the absence of a testimonial inconsistency, simply to "'boost' a witness's testimony." Id. at 477. As outlined in Thompson, evidence of threats made by a witness are certainly admissible to demonstrate bias. Thus, Plaintiff's reliance on Thomas is misplaced as it relates to preclusion of threats to a prosecution witness to enhance their credibility at trial. That is obviously not the case here. Here, the jury must be presented with information regarding Plaintiff's statements so that they can assess Plaintiff as a witness. As the Court is aware, cross-examination is

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accomplish this, cross-examination includes the right to show the witness's possible bias or self-interest in testifying. Thus, the jury must have sufficient information to appraise the biases and motivations of the witness. See States v. Bleckner, 601 F.2d 382, 385 (9th Cir. 1979).2 The situation here is much different than that in either Thomas or Thompson. Here, Plaintiff made Rule 801 statements that she was going to have the badges of the officers that were taking her into custody, called them names and threatened them with a lawsuit.

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Defendants are aware that this is a criminal case, but the reasoning regarding assessment of witnesses is the same as in a civil case.
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These statements speak directly to Plaintiff's motive for filing this lawsuit against the Defendants and further establish her bias and credibility. Because issues of bias and credibility are always something for the jury to consider, the Court must allow these relevant statements to come into evidence. III. Conclusion. Based on the foregoing, the Defendants respectfully request that Plaintiff's Motion in Limine Number 13 Regarding Plaintiff's Post-Arrest, Post-Injury Statements be granted.

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DATED this 5th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson

Electronically filed and served this 5th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY

s/Peggy Sue Trakes

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