Free Other Notice - District Court of Arizona - Arizona

EXHIBIT F

Case 2:03-cv-01892-ROS

Document 170-11

Filed 11/17/2006

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULl, PLC. 290 I North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendant The City of Phoenix,

et al
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA NO. CV03-1892-PHX-ROS Plaintiff, v. The City of Phoenix, et aI, Defendant.
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10 II Teresa August, et ai,
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JOINT PROPOSED VOIR DIRE QUESTIONS

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Court.

The parties, throngh counsel, submit their proposed voir dire questions to The parties respectfully request that the Court ask the potential jurors the questions in addition to the standard questions asked by the Court. PLAINTIFF'S PROPOSED VOIR DIRE 1. In your view, is a police officer's testimony generally more credible

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than other witnesses - why or why not? 2. Do any of you believe that a citizen should not be able to bring a

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lawsuit against the police for excessive use of force during an otherwise legal arrest? 3. Do any of you believe that a police officer should have no limits on

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the use of force when taking a citizen into custody?

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Defendants

object to tbe proposed voir dire as stated.

Tbe question is

2 ~ incomplete and fails to take into consideration issues of probable cause, resisting 3 ~ arrest by tbe snspect, officer safety issues, the type of crime committed, whetber the 4 II snspect is armed and so fortb. In addition, this question infers that the officers in of any evidence.

5 II this case used excessive force without the presentation 6

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4.

Plaintiffs contend that the City of Phoenix police did not use Do any of you believe that a

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reasonable force when they arrested Theresa August.

citizen should not be able to recover for injuries if a police officer uses force that is excessive for the situation? If so, why? Defendants object to the proposed voir dire as stated. The qnestion is

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11 II incomplete and fails to take into consideration issues of probable cause, resisting 12 II arrest by the suspect, officer safety issues, the type of crime committed, whether the 13 II suspect is armed and so forth. In addition, this question infers that the officers in 14 II this case used excessive force without the presentation 15 II 16 5. of any evidence. enforcement

Are any of you members of law enforcement/pro/law Tell me about your involvement.

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groups or organizations? importantto you? Defendants

Why is this particular issue

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object to the proposed

voir dire as stated.

This proposed

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attempt to weed out prospective jnrors based upon their who may be predisposed to finding in favor of

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21 II eitber party, before hearing tbe evidence in this case. 22 II 23 6. This is a civil case. I noticed that some of you have served

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previously as jurors in a criminal case. The burden of proof of proving any particular issue in a civil case is different than in a criminal case. In a criminal case, the prosecutor must prove that the defendant is guilty of the crime charged beyond a reasonable and prudent person and the party having the burden of proof on a particular issue has to
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Case 2:03-cv-01892-ROS

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satisfy you that their evidence "preponderates" on that particular question.

Evidence is

said to "preponderate" when it outweighs the evidence of the other party. Would any of you, if selected as a juror, have any problem applying the preponderance of the evidence standardto this situation? Defendants object to the proposed voir dire hecause it is confusing and Defendants propose that the preponderance of the

6 II unnecessary during voir dire. 7 II evidence staudard 8 II 9 II 10 II II II 7.

he explained to the jury prior to their deliherations. Do any of you have any strong beliefs in regard to personal injury

lawsuits? How many of you believe our society suffers from frivolous lawsuits? Why? How many of you have heard of the concept "caps on damages?" Defendants object to the proposed voir dire as stated. This proposed

12 ~ question is an inappropriate attempt to weed out prospective jurors based upon their 13 II beliefs, for or against, damages awards. 14 II 15 II 16 II 17 II 18 II 19 II 20 II 21 II 22 i 23 8. Do any of you work for insurance companies processing personal

injury, medical malpractice, workers compensation or disability claims? Do you have any family members or close friends who do that type of work? If so, would that fact cause any of you to favor the defendant in this action? 9. Would serving on this jury cause economic hardship for any of you;

that is, would you not get paid by your employer while you were sitting as a juror or be caused to lose money for any other reason if selected as a juror? 10. Have any of you been told by your doctor, family members or Understanding what you have been would

friends that you seem to have difticulty hearing? told? Difficulties with your memory?

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do any of you have difficulty seeing?

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sitting in trial throughout the day be difficult for any of you because of back pain or any other physical problem?

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Case 2:03-cv-01892-ROS

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11.

Is there anyone among you who, for whatever reason (and I will not

ask you to state it), simply feels that they would rather not sit on this case, but would rather go back to the Jury Commissioner's office and be assigned to a different case? 12. Do any
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have any concerns about how your service as ajuror

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might impact you personally, such as questions regarding transportation, interference with your family life, concerns whether you might be forced to work in a confmed space, deal with delays, etc? 13. money damages? Have any of you, or a close friend or family member, been sued for If so, how was the matter concluded? do you have any residual

negative feelings toward people who file lawsuits as a result of that experience? 14. As you sit here now, do any of you feel that, if you were one of the

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parties to this case, that you would not want a person with your experiences, beliefs or feelings to serve as a juror in this case? 15. Do you ever have occasion to discuss police work-especially your family, friends, or co-workers? the

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dangers involved in police work-with

IF YES:

What do you discuss? What are your impressions about the dangers of police work? 16. What contact have you had with police officers or other law In your neighborhood? In your social life?

enforcement officers through your work?

How much faith or respect would you say you have in and for the law enforcement agencies? Why is that? Defendants object to the proposed voir dire as stated. This proposed

22 II question is inappropriate in its question regarding the "faith" or "respect" of 23 II potential jurors "in and for the (sic) law enforcement agencies." 24 II 25 II 26 II 17. Do you think that police receive any kind of special training about

how to testify in court? IF YES: What kind of training? Why? How do you think that training affects how they present themselves as witnesses?
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IF NO: How often do you

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think police officers testify in court? testify? Defendants

How do you think they prepare themselves to

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object to tbe proposed voir dire as stated.

Tbis proposed

4 ~ question implies tbat tbe officers testifying during tbe subject trial were coacbed in 5 II providing their testimony and fails to infer the same "coaching" 6 II of tbeir potential witnesses. 7
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for Plaintiffs or any better suited in

Furtber,

tbis is tbe type of argument

closing argument. 18. What's your immediate reaction when you hear that someone
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charging the police with false arrest or the use of excessive force? Defendants object to tbe proposed voir dire as stated. Tbe reference to

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is inappropriate

as the Court has found that the arrest in this case was Further, this question

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attempts to plant a seed in tbe jnrors mind tbat excessive force was of any testimony.

14 I nsed by tbe Defendant officers prior to tbe presentation 15

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19.

Do any of you have a problem with the idea of a person suing a

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police officer because of actions the police officer took in the line of duty? 20. Some people think that although the police sometimes make

mistakes and use more force than necessary to arrest someone, that is the price society must pay for police protection. What is your opinion about that? Defendants object to tbe proposed voir dire as stated. Tbis proposed

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21 II qoestion inappropriately

attempts to plant a seed in tbe jurors

mind tbat excessive of any testimony.

22 II force was used by tbe Defendant officers prior to tbe presentation 23 II 24 II 25 II 26 II 21.

To prevail in her claims, the law requires that the plaintiff prove

that law enforcement or government personnel violated the plaintiffs civil rights. Have any of you or a close friend or family member ever believed that your civil rights were violated?
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22.

Do any of you have experience, education or any particularized

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knowledge about biomechanical engineering - the field of science that deals with the mechanics of forces and human injury? If so, please describe it in detail, 23. Have you, or a close friend or family member, been sued for money

damages? If so, how was the matter concluded. Do you have any residual negative feelings toward people who file lawsuits as a result of that experience? 24. Do you believe that even if an officers or officers use excessive

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force, they should not be held personally liable for any injuries and/or damages that the excessive force caused because they arc acting in the line of duty? Defendants question inappropriately object to the proposed voir dire as state. This proposed

infers that the officers in this case used excessive force. PROPOSED VOIR DIRE

DEFENDANTS' 1.

Have you or any member of your family ever worked for the If so, please describe when, the governmental

government (federal, state, or local)?

entity or agency for whom you worked, your responsibilities and duties, and reason for leaving (if appropriate). 2. Does anyone here feel that the police are too quick to use force

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when dealing with citizens in Phoenix? 3. subdue a suspect? Plaintiff objects to this proposed voir dire as stated, and requests using "arrest," instead 4. Does anyone here feel that the police should never use force to

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or the word

"subdue."

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Do any of you feel that if a person is injured while the police are

attempting to restrain them, then the police are automatically at fault? Plaintiff objects to the proposed voir dire as stated, and requests using "arrest," instead urtbe word "restrain." 6 Document 170-11 Filed 11/17/2006 Page 7 of 11

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5.

Have you, any member of your family, or close personal mend ever

filed a claim against any governmental agency, law enforcement agency, or individual police officer? If so, please tell us the circumstances. 6. Have you, any member of your family, or close personal friend ever

been subjected to what you considered to be unfair treatment by any member of law enforcement explain. 7. Have any of you witnessed the police restrain a person? If so under any circumstances (including traffic violations)? If so, please

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please describe the circumstances. Plaintiff objects to the proposed voir dire as stated, and reqnests nsing instead oftbe word "restrain," Have you, any member of your family, or close personal friend ever

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been arrested? Please describe the circumstances. 9. An arm bar hold is a law enforcement tool used to restrain violent

and combative suspects. Are any of you familiar with the use of arm bar holds?

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Plaintiff

objects

to

the

proposed

voir

dire

as

being

entirely

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Plaintiff snggests the following:

"Does anybody have training in law

including an arrest technique known as an arm bar hold?" 10. Have you, any member of your family, or close personal friend ever

called a law enforcement agency for assistance? Please explain this situation. I!. Have you, any member of your family, or close personal friend ever

been employed in a law enforcement position? 12. Do you, any member of your family, or close personal friend have

any medical training? 13. Have you, any member of your family, or close personal friend ever

had a serious personal injury?
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14.

How many of you currently hold a job where you are required to

make judgment calls? Please discuss. Plaintiff objects to this proposed voir dire as it inappropriately

4 II comments on the evidence, specifically the officers' decision making process. Also, it 5

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snggests a defense that is not contemplated

by the instructions,

namely, that if an The parties will be

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call he can avoid 1983 liability.

7 II able to determine this information from the jury pool members' statements about 8

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employment. 15. Have you, a member ofyoue family, or close personal friend ever Please describe the

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had to be physically restrained by any law enforcement officer? situation.

Plaintiff objects to this proposed voir dire as stated and requests usiug instead of "restrained." Have you, a member of your family, or close personal friend ever

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worked as a firefighter, EMT, or paramedic? 17. Have you, any member of your family or any close friends ever

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been employed by or connected with the legal profession as an allorney, judge, legal secretary, paralegal, court reporter or court employee? If so, please describe the

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employment or connection, when the employment or connection occurred and whether the employment or connection still exists. 18. Have you, any members of your family or any close personal

friends ever sued or been sued in a civi11awsuit where money damages were requested? If so, please describe the lawsuit and tell us who was suing or being sued, how the case was resolved and your attitudes and feelings about your experience in the lawsuit. Is

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there anything about that experience which might affect your ability to be a fair and impartial juror in this case?
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19. arbitration? 20.

Has anyone ever been a witness in a case or testified at trial or

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Has any member of the panel had any negative experience with the

City of Phoenix Police Department or any other police agency? If so, please explain. 21. Have you, any member of your family, or close personal friends

ever sustained an elbow or shoulder injury? If so, please describe. Plaintiff objects to this proposed
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voir dire as stated

and requests

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deleting the word "shoulder." There is from the officers' conduct. 22.

shoulder injury in this case that occurred

Have you, any member of your family, or close personal friends

ever worn a brace or sling for your arm, elbow or shoulder, or had an operation on your arm, elbow or shoulder for any reason? If so, please describe. Plaintiff objects to this proposed voir dire as stated and requests

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deleting the word "shoulder." There is no shoulder injury in this case that occurred

IS II from the officers' conduct.

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DATED this

17th

day of November, 2006. JONES, SKELTON & HOCHULI, P.L.C.

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6 7 8 9 10 II 12 13 14 15 16 17 18 19 Elb,ctronically filed and served this nt day of November 2006, to: ALL PARTIES ON ELECTRONIC COPY e-mailed this same date to:

By slJennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant The City of Phoenix, et al TREON & SHOOK By s/Daniel B. Treon per authorization Daniel B. Treon 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Attorneys for Plaintiff

SERVICE LIST

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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, AZ 85003 sNicki Wells

21 II BY:

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