Free Motion in Limine - District Court of Arizona - Arizona

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

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' MOTION IN LIMINE REGARDING EXHIBIT 94

Defendants, Griffin, Dunn, Lynde and Monson, through counsel, move for an Order in limine excluding documents listed by Plaintiff in the Joint Pretrial Statement, including: (1) a listing of prior alleged excessive force claims filed against the City of Phoenix; (2) City of Phoenix Police Department Policy 3.19 regarding PSB "misconduct investigations;" and (3) City of Phoenix Police Department Policy B-9 regarding PSB "investigator's responsibilities." Based on the Court's ruling on Defendants' Motion in Limine Regarding PSB Investigation and the dismissal of the City of Phoenix as a Defendant in this case, these documents are irrelevant to the sole remaining issue in this case and are unduly prejudicial. This Motion is supported by all pleadings on file, the following Memorandum of Points and Authorities, and the attached Exhibits.
1729160.1

Case 2:03-cv-01892-ROS

Document 225

Filed 01/05/2007

Page 1 of 4

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
1729160.1

MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND Plaintiff's Exhibit 94 in the Joint Pretrial Statement includes: (1) a listing of prior alleged excessive force claims filed against the City of Phoenix; (2) City of Phoenix Police Department Policy 3.19 regarding PSB "misconduct investigations;" and (3) City of Phoenix Police Department Policy B-9 regarding PSB "investigator's responsibilities."1 On December 15, 2006, at the Pretrial Hearing, the Court signed the stipulation to dismiss the City of Phoenix as a Defendant in this matter. At the same hearing, the Court granted the Motion in Limine Regarding PSB Investigation filed by the Defendants and found that "[t]he failure to investigate, the termination of the investigation...all of that is not admissible."2 Based on the Court's Order on the Motion in Limine, defense counsel requested that Plaintiff withdraw these exhibits on January 2, 2007. On January 3, 2007, defense counsel followed up with Plaintiff's counsel and again requested that the exhibits be withdrawn. Plaintiff's response on January 3, 2007 stated: I think these may have some tangential relevance, but relevance nonetheless, to the Tomory/tapes of radio broadcasts/investigation issue, and while it could be that depending on how the court rules on this issue, and depending on what you guys file in response to our motion re spoliation, we could agree that they're not coming in, but for right now, I think it'd be best to file your MIL. I'm really not trying to be difficult here, but I can't be letting go of evidence which may be relevant to the "investigation" issue.3
Defendants did not receive Plaintiff's exhibits until December 13, approximately 48-hours before the pretrial hearing in this case. As a result of the delay in receiving the documents, Defendants were unable to file a Motion in Limine on this issue by the Court Ordered deadline. A copy of Plaintiff's proposed Exhibit 94 is attached hereto as Exhibit 1.
2 3 1

See page 35 of Pretrial Hearing Transcript, attached hereto as Exhibit 2. See correspondence between counsel, attached hereto as Exhibit 3.

2

Case 2:03-cv-01892-ROS

Document 225

Filed 01/05/2007

Page 2 of 4

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
1729160.1

Because the exhibits are not relevant, even "tangentially," to the sole remaining issue in this case, Defendants respectfully request that the exhibits be precluded as evidence. II. LEGAL ARGUMENTS. A. Exhibit 94 Is Irrelevant to Issues in Case. FED. R. EVID. 401 states that relevant evidence is evidence that tends 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. In this case, the City of Phoenix Police Department has been dismissed as a Defendant. Accordingly, the list of prior alleged excessive force claims made against the City of Phoenix is irrelevant to the sole remaining issue in this case. In addition, the City of Phoenix Police Department policies regarding PSB investigations have already been deemed inadmissible pursuant to the Court's Order on December 15, 2006. Accordingly, these must be precluded as exhibits at trial. B. Any Probative Value of Exhibit 94 Is Outweighed By Its Prejudicial Effect. FED. R. EVID. 403 precludes the admission of evidence when the probative value is substantially outweighed by any unfair prejudice. In this case, Exhibit 94

contains documents about unrelated excessive force cases, about policies unrelated to the sole remaining issue in this case and are references to a dismissed Defendant. The Defendants would be unduly prejudiced by allowing this prejudicial, misleading and confusing evidence to be presented to the jury and must be deemed inadmissible under FED. R. EVID. 403.

3

Case 2:03-cv-01892-ROS

Document 225

Filed 01/05/2007

Page 3 of 4

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

II.

CONCLUSION. Based on the foregoing reasons, Defendants respectfully request this Court

to exclude Exhibit 94 which includes:(1) a listing of prior alleged excessive force claims filed against the City of Phoenix; (2) City of Phoenix Police Department Policy 3.19 regarding PSB "misconduct investigations;" and (3) City of Phoenix Police Department Policy B-9 regarding PSB "investigator's responsibilities" on the basis of their irrelevancy, the potential for confusion and unfair prejudice under Rule 403. DATED this 4th 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 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

1729160.1

4

Case 2:03-cv-01892-ROS

Document 225

Filed 01/05/2007

Page 4 of 4