Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-01254-GMS

Document 138

Filed 09/25/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

HARRY SMITH, JR. and ROSLYN WOODARD SMITH, Individually and as Administrators of The ESTATE OF HARRY SMITH, III, Plaintiffs, v. CITY OF WILMINGTON, JOHN CIRITELLA, in his individual capacity and in his official capacity as a police officer of the Wilmington Police Department, THOMAS DEMPSEY, in his individual capacity and in his official capacity as a police officer of the Wilmington Police Department, and MATHEW KURTEN, in his individual capacity and in his official capacity as a police officer of the Wilmington Police Department, Defendants. ______________________________________________________________________ PLAINTIFFS' MOTION IN LIMINE TO EXCLUDE 402 AND 403 EVIDENCE ______________________________________________________________________ Come now the Plaintiffs, by counsel, and respectfully request the Court exclude at trial the introduction of any and all 402 and 403 evidence, relating in any way to allegations Harry Smith, III had a scalpel, attempted to carjack a vehicle, and/or had possession of a gun of any type. The basis for this motion is that the jury will be asked to determine whether or not the defendants used excessive force during the arrest of Harry Smith, III. The law requires the jury focus on what a reasonable officer would have done given what he knew at the time he used deadly force. CIVIL ACTION NO. 04-1254-GMS

1

Case 1:04-cv-01254-GMS

Document 138

Filed 09/25/2006

Page 2 of 2

There is no evidence, of which plaintiffs are aware, indicating the defendants, at the time they participated in the car chase and used deadly force, had information indicating Harry Smith, III took a scalpel from the hospital emergency room, allegedly attempted to carjack a vehicle on Washington Street, or possessed a gun of any type. The introduction of any of this kind of evidence is prohibited by 402 and 403 because it is irrelevant and will serve only to confuse or mislead the jury. Its prejudicial impact clearly outweighs its probative value. Dated this 25th day of September 2006. s/Anne T. Sulton Sulton Law Offices Post Office Box 2763 Olympia, WA 98507 (609) 468-6029 [email protected]

CERTIFICATE OF SERVICE I hereby certify that on September 25, 2006, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF which will send notification of such filing(s) to: Attorney John A. Parkins, Jr. at [email protected] Richards, Layton & Finger, P.A. Post Office Box 551 Wilmington, DE 19899 s/Anne T. Sulton

2