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Arce v. State

United States District Court, E.D. Louisiana

November 29, 2017

NELSON ARCE ET AL.
v.
LOUISIANA STATE ET AL.

         SECTION I

          ORDER AND REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court are four motions in limine[1] filed by the State of Louisiana. For the following reasons, the motions are granted in part and deferred in part.

         I.

         Louisiana moves to preclude the testimony of Ana Christine Shelton (“plaintiff”) and Scott Huffman (“Huffman”).[2] According to Louisiana, “[a]ny testimony offered by these two witnesses should be excluded because neither witness has first-hand or otherwise admissible information concerning the facts of this case.”[3]Louisiana further argues that “the proposed testimony to be offered by Huffman constitutes an improper attempt to instruct the jury on the law . . . and an improper attempt to elicit expert testimony.”[4]

         Plaintiff counters that both she and Huffman possess relevant first-hand information. Plaintiff, who is the mother of Nelson's two children and alleges to have been “very close” to Nelson, asserts that her own testimony will concern “Nelson's mood, behavior, and reaction to the discrimination he encountered in Probation and Parole and in JPCC, ” and thus her testimony “is highly relevant to the quantum of damages that should be awarded.”[5] Plaintiff further asserts that the testimony of Huffman-a professional sign language interpreter and Nelson's friend-will cover several topics, including “Nelson's mood and behavior before the discrimination; and . . . Nelson's mood, behavior, and emotional distress after the discrimination.”[6]Plaintiff contends that, contrary to Louisiana's suggestion, Huffman will not offer expert testimony and will not testify as to the law.[7]

         The Court concludes that a blanket prohibition on the ability of plaintiff and Huffman to offer testimony in this case is unwarranted, as both witnesses may be able to offer testimony that complies with the Federal Rules of Evidence. Nevertheless, the Court will defer a formal ruling as to their testimony in the event that they are called as witnesses at trial. At that point, the Court will be in a better position to consider the specific questions asked of them.

         II.

         Louisiana next moves the Court to prohibit plaintiff from introducing two affidavits-one executed by Nelson Arce and the other by Lazaro Arce-as substantive evidence in the case.[8] Louisiana contends that these affidavits constitute inadmissible hearsay.

         Under the Federal Rules of Evidence, hearsay is “a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Fed.R.Evid. 801(c). Hearsay is not generally admissible. Fed.R.Evid. 802. However, the Federal Rules of Evidence are riddled with exclusions from and exceptions to this general prohibition. See Fed. R. Evid. 801(d), 803, 804, 807. Moreover, if a party offers a statement to prove something other than the truth of the matter asserted-for example, the statement's effect on the listener-then the statement falls outside the Federal Rule of Evidence's definition of hearsay.

         Plaintiff does not dispute that these affidavits constitute hearsay, but argues that both are admissible via Federal Rule of Evidence 807.[9] This rule provides that “a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception” if four circumstances are met:

(1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.

Fed. R. Evid. 807(a). The Fifth Circuit has counseled that “[t]he [807] exception is to be ‘used only rarely, in truly exceptional cases.'” United States v. Phillips, 219 F.3d 404, 419 n. 23 (5th Cir. 2000) (quoting United States v. Thevis, 665 F.2d 616, 629 (5th Cir. 1982)).

         “[T]he proponent of the statement bears a heavy burden to come forward with indicia of both trustworthiness and probative force.” Id. (alteration in original). “[I]n order to find a statement trustworthy, a court must find that the declarant of the . . . statement was particularly likely to be telling the truth when the statement was made.” Id. (internal quotation marks omitted) (alteration in original). “The determination of trustworthiness is drawn from the totality of the circumstances surrounding the making of the statement, but [it] cannot stem from other corroborating evidence.” United States v. El-Mezain, 664 F.3d 467, 498 (5th Cir. 2011) (internal quotation marks omitted) (alteration in original). The evidence “must be at least as reliable as evidence admitted under a firmly rooted hearsay exception . . . [and] must similarly be so trustworthy that adversarial testing would add little to its reliability.” Id. (internal quotation marks omitted) (alteration in original).

         With respect to Lazaro's affidavit, Lazaro will be available to testify at trial. Thus, his affidavit is not “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Fed.R.Evid. 807(a)(3). Based on the arguments made in support of admission, the Court grants Louisiana's request to exclude Lazaro's affidavit in its entirety.

         With respect to Nelson's affidavit, Nelson executed the affidavit amid ongoing litigation in which he had a financial interest and in support of his own motion for a preliminary injunction. Given that Louisiana will not have an opportunity to cross- examine Nelson as to the allegations in his affidavit-indeed, Louisiana did not even have an opportunity to depose Nelson-the Court concludes that admission of the affidavit in its entirety will be highly prejudicial to Louisiana and thus it will not “best serve the purposes of [the Federal Rules of Evidence] and the interests of justice.” Fed.R.Evid. 807(a)(4); cf. ID Sec. Sys. Canada, Inc. v. Checkpoint Sys., Inc., 198 F.Supp.2d 598, 626 (E.D. Pa. 2002) (declining to admit under Rule 807 the sworn affidavits of an unavailable witness where, “at the very moment that he swore the affidavits, he was employed by the party on whose behalf he filed the affidavits and therefore had a ‘financial interest' in the outcome of the case” for which those affidavits were created); Tatum v. Pactiv, No. 06-83, 2007 WL 2746647, at *2 (M.D. Ala. Sept. 19, 2007) (Strom, J.) (declining to admit under 807 a videotaped statement of a deceased witness in part because the statement was made “in anticipation of litigation” and the defendants “had no opportunity to cross-examine or speak with [the witness] prior to his death”); Exe v. Fleetwood RV, Inc., No. 11-70, 2013 WL 2145595, at *6 (N.D. Ind. May 14, 2013) (Cosbey, M.J.) (observing, in the process of excluding a deceased expert witness's affidavit, that certain statements in the affidavit “were made in anticipation of litigation and, having been signed just six days before the motion for sanctions was filed, apparently to accompany that motion”).

         Plaintiff also argues that portions of Nelson's affidavit are admissible “to prove that a verbal act was performed-Nelson made a request to Lisa Maise that the State provide him with a sign language interpreter.”[10] In particular, plaintiff identities two statements in the affidavit as admissible for this purpose: “I have repeatedly asked Lisa Maise to provide me with a qualified interpreter for my probation meetings, ” and “I continued to request that Ms. Maise provide me with an interpreter for all probation meetings.”[11]

         “The verbal acts doctrine permits a witness to testify to the fact that an out-of-court conversation occurred rather than to the truth of matters asserted therein.” United States v. Alvarez, 584 F.2d 694, 697 (5th Cir. 1978); see also Federal Courtroom Evidence § 801.3 (May 2017) (“Verbal acts are statements that do not constitute hearsay. A ‘verbal act' is an utterance that is an operative fact giving rise to legal consequences.”). “The verbal acts doctrine applies only where the out-of-court statement actually affects the legal rights of the parties, or where legal consequences flow from the fact that the words were said.” Echo Acceptance Corp. v. Household Retail Servs., Inc., 267 F.3d 1068, 1088 (10th Cir. 2001) (internal quotation marks omitted). The “classic examples of verbal acts” involve “offer and acceptance.” United States v. Moreno, 233 F.3d 937, 940 (7th Cir. 2000).

         The Court concludes that Nelson's alleged requests to his probation officer to provide him with a qualified ASL interpreter for their meetings may qualify as verbal acts. Regulations promulgated by the Attorney General to implement Title II provide that, “[i]n determining what types of auxiliary aids and services are necessary” to ensure effective communication, “a public entity shall give primary consideration to the requests of individuals with disabilities.” 28 C.F.R. § 35.160(b)(2). Thus, a witness may be able to testify at trial to the fact that the requests were made.

         However, the identified statements in Nelson's affidavit are another story. Plaintiff seeks to offer these out-of-court statements for the truth of matter asserted- namely, that Nelson continually requested a sign language interpreter for his probation meetings. In other words, Nelson's requests to his probation officer for a sign language interpreter may constitute verbal acts, but the identified statements in the affidavit regarding those requests are not verbal acts. Rather, the statements are assertions that a verbal act was performed, and plaintiff herself has indicated that she intends to offer them at trial “to prove that a verbal act was performed”- worded differently, to prove the ...


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