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 City of Phoenix, 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. 12 RE 9-1-1 TAPE

Defendants submit this Response in Opposition to Plaintiff's Motion in Limine No. 12 Re: 9-1-1 Tape. Plaintiff's Motion must be denied because: (1) there is no legal basis for the exclusion of the 9-1-1 tape pursuant to A.R.S. § 13-3989.01(A); and (2) Defendants will authenticate the 9-1-1 tape pursuant to FED. R. EVID. 901. A. No Basis for Exclusion of 9-1-1 Tape Pursuant to A.R.S. § 13-3989.01(A). Plaintiff relies on A.R.S.§ 13-3989.01(A) to exclude the 9-1-1 tape recording generated on June 10, 2002. This statute provides for self-authentication of the 9-1-1 tape recording, so that a custodian of records need not testify at trial. Plaintiff argues that because the Affidavit of the Custodian of Records was not completed in this case, A.R.S. § 13-3989.01(A) has been violated and the tape recording must be excluded from evidence. This is not, however, an exclusionary rule.
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Even if Defendants cannot self-authenticate, nothing in the rule limits the ability to introduce a 9-1-1 tape recording on proper authentication. Nothing in the statute that provides for such overarching exclusion of evidence and there is no supporting case law for Plaintiff's proposal. B. The 9-1-1 Tape Recording Will be Authenticated Pursuant to Fed. R. Evid. 901. Fed. R. Evid. 901, provides ten ways to authenticate a document. The Rule states in pertinent part: (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification confirming with the requirements of this rule: (1) (5) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. Voice Identification. Identification of a voice, whether had firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

(b)

As further outlined in U.S. v. Duran, 4 F.3d 800, 803 (9th Cir. 1993), "for voice identifications, Rule 901(b)(5) requires the hearing of the voice at any time under circumstances connecting it with the alleged speaker." Here, Plaintiff objects to the 9-1-1 tape recording as allegedly lacking foundation. Plaintiff asserts that the subject "call was made over four years ago, and although the 9-1-1 operator may be able to authenticate her own voice on the tape, she cannot attest to the chain of custody on the tape or reliably attest that the tape is the full, fair representation of that telephone call."1

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See Plaintiff's Motion, page 2.

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For the following reasons, the 9-1-1 tape recording will be authenticated during the subject trial. First, Plaintiff, during her deposition testimony, identified and authenticated her voice on the 9-1-1 tape recording and has thus served as the applicable "foundational witness." Question (Ms. Wieneke): First of all, did you recognize your voice on the tape? Answer (Plaintiff): Question: Yes, I did recognize my voice. There was also another female voice on the tape which was the 9-1-1 operator who was identified on the transcript as Chris Whitted. There was another male voice, though, on the tape and during the playing of the tape at one point you said, "that's Sam" or something to that effect? Yes. Did you hear Sam Hickey's voice on the tape? Yes.2

Answer: Question: Answer:

Second, Defendants disclosed in their Initial Disclosure Statement dated March 1, 2004, that all "custodians of records" would be called to testify at trial on March 1, 2004. Defendants similarly disclosed a transcript of the 9-1-1 tape, which listed Chris Whitted as the 9-1-1 operator on July 29, 2004 in their Seventh Supplemental Disclosure Statement. Moreover, based on Plaintiff's objection to the 9-1-1 tape recording,

Defendants listed both Chris Whitted and Dan McNamee as potential foundational witnesses for the 9-1-1 tape recording in the Joint Pretrial Order filed with the Court.3 Accordingly, Defendants timely disclosed the requisite custodians of records to lay

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See Plaintiff's deposition transcript, pages 106-107, attached hereto as Exhibit 1.

Mr. McNamee was disclosed as the supervisor of the Communications Bureau. He will be called to testify regarding records and retention of recordings information if necessary.

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foundation for the 9-1-1 tape recording pursuant to Rule 901. Both speakers on the 9-1-1 tape recording will be testifying at trial, Mrs. August (who has already authenticated her voice under oath) and Chris Whitted, the 9-1-1 operator. Accordingly, authentication and the foundational requirements under Rule 901 will be satisfied and Plaintiff's Motion in Limine No. 12 Re: 9-1-1 Tape must be denied. DATED this 29th day of November, 2006. 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 29th day of November, 2006, 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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