Free Motion in Limine - 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' MOTION IN LIMINE REGARDING AZPOST BULLETIN

Defendants, Griffin, Dunn, Lynde and Monson, through counsel, move for an Order in limine excluding all evidence and testimony by Commander Hynes regarding "Exhibit C" as attached to his deposition transcript. "Exhibit C" is an AZPOST1 Bulletin that is unrelated to the facts or circumstances raised in this case, was prepared subsequent to the subject June 10, 2002 incident, and was not disclosed in Plaintiff's Disclosure Statements or in Answers to Interrogatories. Plaintiff has, however, listed the AZPOST Bulletin as a Trial Exhibit in the Joint Pretrial Statement as Exhibit 37. Because the AZPOST Bulletin is irrelevant and unduly prejudicial under FED. R. EVID. 403, it must be excluded from trial.

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AZPOST stands for Arizona Peace Officers Standards and Training.

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This Motion is supported by all pleadings on file, the following Memorandum of Points and Authorities, and the attached Exhibits. MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND During the deposition of Commander Hynes, Defendants' police procedures expert, he was asked questions about an October/November 2002 AZPOST Bulletin.2 The AZPOST Bulletin is published by the Arizona Peace Officers Standards and Training Board which oversees the standards and training for peace officers in the State. The October/November 2002 Bulletin contained a summary of the actions taken by the Board at its October/November 2002 meeting. The Bulletin reported on eight specific cases, all of which were "anonymous" in that the Agency and/or the officer involved was not identified. Of the eight cases, only one dealt with excessive force. In that case, a nearly completely restrained prisoner in a restraint chair was struck by an officer in the stomach area. The Officer's certification was suspended for one year and he was fired from his agency. The AZPOST Bulletin was used in the deposition of Commander Hynes on February 28, 2002. The deposition of Commander Hynes was taken on the last day of the discovery cutoff. The discovery deadline was February 28, 2002. Prior to that date, the Bulletin had never been listed as an exhibit in Plaintiff's Rule 26 Disclosure Statements. Further, Plaintiff had not disclosed the Bulletin as "impeachment" in response to Defendants' Request for Production question for the production of all "impeachment evidence."3

See AZPOST Bulletin, attached hereto as Exhibit 1.

During the Joint Pretrial Hearing held in this case on December 15, 2006, the Court granted Defendants' Motion in Limine Regarding Plaintiff's Failure to Produce Impeachment Evidence as requested in Defendants' Request for Production.

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As outlined, the AZPOST Bulletin concerned actions taken after Plaintiff's June 10, 2002 incident. It involved unknown officers from unknown agencies; thus, Defendants have no way to cross-examine any witnesses regarding the circumstances or even conduct discovery regarding same. Further, Plaintiff's failure to timely disclose the information deprived Defendants of a fair opportunity to conduct discovery. In essence, Plaintiff's use of the document for the first time at Commander Hynes' deposition, on the last day of discovery and despite an outstanding Request for Production requesting the information, was at best, a surprise attack. II. LEGAL ARGUMENTS. A. Unrelated AZPOST Bulletin 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. The AZPOST Bulletin, is wholly unrelated to Plaintiff's claims in this case and does not relate to the alleged excessive force used by the Defendant Officers. Further, its use could cause confusion. The jury could be misled into believing it involves the City of Phoenix. Also, the incident in the Bulletin occurred after Plaintiff's incident. The AZPOST Bulletin is simply irrelevant to Plaintiff's claim and must be prohibited. B. No Foundation for AZPOST Bulletin. Defendants further object to the AZPOST Bulletin on foundational grounds. Plaintiff has failed to list any witness that will testify regarding the development of the AZPOST bulletin, what information it contains (and about whom and what) or about the purpose of the document. The AZPOST bulletin is therefore inadmissible hearsay under Rule 803, FED. R. EVID.

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C.

No Disclosure of AZPOST Bulletin. Plaintiff did not disclose the AZPOST bulletin in a disclosure statement

pursuant to the Court's Rule 16 Scheduling Order and as required under Rule 26, FED. R. CIV. P. Plaintiff also failed to produce the Bulletin in response to Defendants' Request

for Production for all "impeachment evidence." Accordingly, the AZPOST Bulletin has not been timely disclosed and must be precluded. D. Any Probative Value of the AZPOST Bulletin 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, the AZPOST Bulletin deals with unrelated use of force incidents, unrelated officers, and unknown agencies. The Defendants would be unduly prejudiced by allowing this prejudicial,

misleading and confusing evidence to be presented to the jury. Because introduction of the unrelated AZPOST Bulletin would be unduly prejudicial to Defendants, the evidence is inadmissible under FED. R. EVID. 403. II. CONCLUSION. Based on the foregoing reasons, Defendants respectfully request this Court to exclude the October ­ November 2002 AZPOST Bulletin. Such evidence should be excluded on the basis of its irrelevancy, its potential for confusion and unfair prejudice under Rule 403. ... ...

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DATED this 3rd 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 3rd 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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