F. Richard Curtner
1107 West Seventh Avenue
Anchorage, AK 99501
(907) 279-1002
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxxx
)
Plaintiff, )
) DEFENDANT xxxxxxxxxxxxx
vs. ) MOTION IN LIMINE TO EXCLUDE
) AUDIO RECORDING OF EMERGENCY
xxxxxxxxxxxxx., ) MEDICAL TREATMENT OF VICTIM
and xxxxxxxxxxxxxx, )
)
Defendants. )
____________________________________)
COMES NOW THE DEFENDANT, xxxxxxxxxxx, by and through counsel, Rich Curtner, and moves in limine to exclude from the trial in this case the playing of an audio tape recording of medical treatment administered to the victim, xxxxxxxxxx, at the hospital emergency room on September 17, 1991.
This motion is based on the grounds that the introduction or playing of this audio tape at trial would violate the defendant's right to due process of law and the right to confront and cross-examine adverse witnesses, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and contrary to the Federal Rules of Evidence.
This motion is supported by the attached Memorandum of Points and Authorities, the exhibit attached thereto, the record in this case, and any oral argument made by counsel.
DATED in Anchorage, Alaska this ____ day of October, 1994.
_________________________________
Rich Curtner
Attorney for Defendant
Raymond D. Cheely, Jr.
F. Richard Curtner
1107 West Seventh Avenue
Anchorage, AK 99501
(907) 279-1002
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. xxxxxxxxxxxxxxxxx
)
Plaintiff, )
)
vs. ) MEMORANDUM OF POINTS
) AND AUTHORITIES
xxxxxxxxxxxxxx, JR., )
and xxxxxxxxxxxxx, )
)
Defendants. )
____________________________________)
The government has provided counsel for defendant with a copy of an audio recording of emergency treatment administered to the victim in this case, xxxxxxxx, at the emergency room of Humana Hospital in Anchorage, Alaska on the date of the alleged offense, September 17, 1991. A transcript of the audio recording is attached.
The government has further indicated a belief that the tape recording would be admissible in its case-in-chief at trial. Defendant submits that this evidence is not admissible under the Federal Rules of Evidence, and that its introduction at trial before a jury would violate the defendant's right to a fair trial, due process of law, and right of confrontation.
The tape recording of Mrs. xxxxxxx during treatment at the emergency room is clearly hearsay evidence as defined in Rule 801(c) of the Federal Rules of Evidence, and therefore not admissible under Rule 802 except as provided by the Federal Rules of Evidence or by statute. The only exception under the Federal Rules of Evidence that might possibly be argued for admission of this tape is the "excited utterance" exception of Fed. Evid. R. 803(2). That exception is based on the premise that a condition of excitement may temporarily still the capacity of reflection and produce utterances free of conscious fabrication. The spontaneity of the excited utterance must have sufficient indicia of reliability and circumstantial guarantees of trustworthiness to justify nonproduction of the declarant in person at trial. This exception to the Hearsay Rule, however, does not dispense with the requirement that the witness have firsthand knowledge as to the subject matter of the statement.
In this case, the subject matter of the statement made in the emergency room, the identity of the assailant, was not the firsthand knowledge of Mrs. Kerr, but her speculation as to who might be the source of the bomb. Her description of the package and the circumstance of the explosion are not in dispute. Therefore, her statement to medical personal would not be admissible under Fed. Evid. R. 803(2).
Moreover, such statements would be inadmissible under the standards of Fed. Evid. R. 403. The statement has little to no probative value since the description of the package containing the bomb is not in dispute, and the identity of the assailant is pure speculation.
However, the danger of unfair prejudice to the
defendant is graphically evident in the tape, which reflects the suffering of the victim
during the course of emergency treatment. The danger of inducing a jury verdict on a
purely emotional basis substantially outweighs the minimal probative value of Mrs. Kerr's
statement, especially in light of the availability of other means of proof as to the
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