United States District Court, D. Arizona
ORDER AND OPINION [RE: MOTION AT DOCKET 102]
W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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.
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. McKibben cites a 1987 Supreme Court
decision for this proposition, Bourjaily v. United
States. 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:
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
(1) the statement has equivalent circumstantial guarantees of
(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 ...