McKibben v. Knuth

          ORDER AND OPINION [RE: MOTION AT DOCKET 102]

          JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT JUDGE

         I. MOTIONS PRESENTED

         At docket 102 defendants asked the court to exclude evidence regarding Arizona Department of Public Safety (“DPS”) interviews. Plaintiff responded at docket 119. No. reply was filed.

         II. DISCUSSION

         The central issue in this litigation is the amount of force defendant Knuth used against plaintiff McKibben. Knuth's employer, the Sedona Police Department, decided not to perform its own investigation of the incident involving Messrs. Knuth and McKibben. Instead, the Sedona Police Department opted to have the matter investigated by DPS.

         DPS' investigators conducted witness interviews and recorded statements of the interviews. The investigators, Marc Snyder, Anthony Falcone, and Neal Peden, prepared summaries of the interviews which are the subject of defendants' motion.

         Defendants argue that the summaries would be offered for the truth of their contents and therefore should be excluded as hearsay pursuant to Fed.R.Evid. 802. McKibben argues that the summaries would not be offered for the truth:

But the Summaries are not offered for their truth. Whether or not an interviewee actually did or said what is reflected in one of the Summaries, Defendants relied on those Summaries in making certain decisions. The Defendants did no independent investigation into the matter. DPS's impressions and findings are therefore relevant to show Defendants' policy of inaction towards improper uses of force. Accordingly, the DPS Summaries do not constitute hearsay and are admissible.”^[1]

         If DPS' impressions and findings were that Knuth's conduct was improper, then Defendants' reliance on them might show a policy of inaction. However, because the summaries are not offered for their truth, reliance on them cannot demonstrate a policy of inaction. In short, the summaries must be considered hearsay.

         Perhaps recognizing the summaries are hearsay, McKibben argues that they are admissible under the exception to the hearsay rule for evidence that has a sufficient indication of reliability.^[2] McKibben cites a 1987 Supreme Court decision for this proposition, Bourjaily v. United States.^[3] To the extent relevant here, the Bourjaily court relied on what was then Fed.R.Evid. 803(24). The current version of the rule is Fed.R.Evid. 807. Rule 807(a) provides as follows:

         Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(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 ...