Free Motion in Limine - District Court of Arizona - Arizona

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Daniel B. Treon ­ 014911 Kelly Jo - 021525 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. ____________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV03-1892 PHX ROS

PLAINTIFFS' MOTION IN LIMINE NO. 12 RE: 9-1-1 TAPE

Plaintiff moves to exclude the tape of the 9-1-1 call made on June 10, 2002 and the foundation witness Defendants have just disclosed they intend to call. Defendants have failed to provide the statutorily mandated foundation for the tape in a timely manner, and a witness to identify voices on the tape satisfies neither the statute nor the requirement of authenticating the tape. Arizona statute specifically prescribes the process for admitting a 9-1-1 tape. A.R.S. § 13-3989.01(A) lays out what it takes to admit a 9-1-1 tape in evidence: Case 2:03-cv-01892-ROS

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(A) The records and recording of 9-1-1 emergency services telephone calls are admissible in evidence in any action without testimony from a custodian of records if the records and recording are accompanied by the following signed form: The accompanying records and recordings and explanatory material are from the (name of agency) public safety answering point communications facility. This form authenticates (number) pages. This form authenticates (number) tapes. These documents and tapes pertain to: case number _______, department report number __________, call receipt date and time _________, caller name __________, call origination location address _________, originating telephone number _________, dispatch time _________, arrival time _________. A.R.S. § 13-3989.01(A) (emphasis added) The statute continues, and explains that, (B) 9-1-1 emergency record and recordings and any copies of the records and recordings that comply with subsection A of this section are deemed to be authenticated pursuant to Rule 901(b)(10) of the Arizona Rules of Evidence. Long after the deadline for disclosure of evidence requested by Plaintiff, including the tape and the foundation for the tape, Defendants have identified a witness who can purportedly authenticate the tape, the 9-1-1 operator who answered the call. However, the call was made over four years ago, and although the 9-1-1 call 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. If violation of the state statute is not enough to preclude this foundationless tape from admission, then the lack of the late proposed "foundation witnesses'" ability to authenticate the tape through the chain of custody should preclude its admission in evidence. Therefore, the tape and the witness to authenticate the tape should be excluded from evidence.

Case 2:03-cv-01892-ROS

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DATED this 17th day of November, 2006.
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TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Jo Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on November 17, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:
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s/ Aly Shomar-Esparza

Case 2:03-cv-01892-ROS

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