Free Motion in Limine - District Court of Arizona - Arizona

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Daniel P. Struck, Bar #012377 Timothy J. Bojanowski, Bar #022126 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7811 [email protected] [email protected] Attorneys for Defendant Cora Miles UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Carlos Arthur Powell, Plaintiff, v. Cora Miles and Earl Scalet, Defendants. NO. CV-03-1819-PHX-JAT DEFENDANT CORA MILES' MOTION IN LIMINE NO. 1 TO EXCLUDE WRITTEN INMATE HEARSAY STATEMENTS

Defendant Cora Miles, through counsel, hereby moves in limine and pursuant to Fed. R. Evid. 801, 802, 803 and 804 for the court to exclude hearsay statements contained in affidavits proferred by Plaintiff. This motion is supported by the following Memorandum of Points and Authorities and all Pleadings on file with the Court. MEMORANDUM OF POINTS AND AUTHORITIES

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INTRODUCTION Defendant Miles anticipates that Plaintiff intends to enter into evidence

affidavits of former inmates regarding statements purportedly made by Defendant Miles. The following inmates purportedly provided written statements to Plaintiff relaying statements allegedly made by Defendant Miles, other Eloy Detention Center employees, and/or Defendant Scalet:

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Ismael Chavez, dated June 2004. Camacho Garcia (Reg. #27182-057), dated June 2004. Roberto Lackier-Cruz , dated April 8, 2004. Obi Okoronkwo (A-77-304-960), dated November 16, 2003. Paul Prymych, dated August 21, 2004. Erik Salvador (Reg. # 66324-065), dated November 6, 2003 (two separate statements) Gustavo Sotelo (Reg. # 10147-081), dated April 8, 2004. David Tome, dated November 21, 2004.

Defendants anticipate Plaintiff will seek to admit all or portions of these hearsay witness statements in lieu of witness testimony. Defendants also anticipate Plaintiff will seek to introduce these statements for the substance contained within the statement. II. LAW AND ARGUMENT These inmate statements are hearsay since they are out of Court statement offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c). In the most

comparable case at bar, not only affidavits, but "live testimony" of an inmate regarding an alleged statement made by a prison official is inadmissible hearsay. McDonald v.

Steward, 132 F.3d 225, 232 (5th Cir. 1998) (Inmate brought §1983 retaliation claim against Library Supervisor regarding denial of access to library in retaliation for inmates help filing a lawsuit against prison mailroom personnel.) These inmate statements are classic hearsay which should be excluded since they will be offered to prove the truth of the matter asserted. There is no hearsay exception which would allow these statements to be admitted. Further, if the Court were to allow the statements to be admitted, Defendants would be denied the opportunity to cross examine the witness resulting in a due process deprivation.
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Additionally, the statements bear no indicia of reliability. Several of the statements were handwritten by Plaintiff. As the facts at trial will demonstrate, Plaintiff previously submitted one "cop out" letter to Defendant Scalet bearing the name and signature of Inmate Navarro, whom Plaintiff knew did not read or write English. See Plaintiff's Dep. at 27:11 ­ 28:17 attached hereto as Exhibit 1 (Mr. Navarro, who doesn't even read English, purportedly sold Plaintiff's motions). Moreover, many of the

statements were not written contemporaneously with the events described therein, but were written, in some cases, more than a year after the events described. All of the information contained within the witness statements should be subject to the rigors of cross examination such that the jury is not subjected to unreliable, incomplete, inaccurate, or misleading evidence. III. CONCLUSION Based upon the foregoing, Defendants respectfully request the Court exclude from evidence any and all hearsay statements contained in Affidavits or otherwise proffered by Plaintiff. RESPECTFULLY SUBMITTED this 4th day of December 2006. JONES, SKELTON & HOCHULI, P.L.C.

By s/Timothy J. Bojanowski Daniel P. Struck Timothy J. Bojanowski 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendant Cora Miles

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CERTIFICATE OF SERVICE I hereby certify that on December 4, 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 Filing to the following CM/ECF registrants: John R. Mayfield U.S. ATTORNEY'S OFFICE 2 Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Attorney for Defendant Earl Scalet ________________________________________________________________ I hereby certify that on December 4, 2006, I served the attached document by: mail on the following, who are not registered participants of the CM/ECF System: Carlos Arthur Powell C/O AMICUS CURIAE ASSOCIATION FOUNDATION ATTN: Ken Peterson 9335 Bowman Avenue South Gate, California 90280 Pro se Plaintiff

s/Dianne Clark

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