JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court on the Plaintiffs' First Motion In Limine, filed September 4, 2012 (Doc. 55) ("Motion in Limine"). The Court held a hearing on September 19, 2012. The primary issues are: (i) whether the Court should allow Defendants to cross-examine Plaintiff Michael Montoya about past traffic violations for the purpose of establishing M. Montoya's knowledge that he was required to sign the citation Defendant Officer Gerald Shelden
On April 16, 2007, Michael Montoya was driving a vehicle with his brother, David Montoya, in the passenger seat, southbound on 8th Street near the intersection with Bridge Street in Albuquerque, New Mexico, when Defendant Albuquerque Police Department ("APD") Officer Gerald Shelden informed M. Montoya and D. Montoya that they needed to pull over. See Plaintiffs' Complaint for Civil Rights Violations ¶¶ 11-13, at 3 (Doc. 1) ("Complaint"). When Shelden informed M. Montoya that he pulled him over because M. Montoya was not wearing a seatbelt, M. Montoya produced a note from his physician, Dr. Baldwin, excusing M. Montoya from wearing a seatbelt because of a medical condition. See Complaint ¶¶ 14-15, at 3-4. Shelden looked at M. Montoya's note, told him that "it was a `bogus ass note,'" and asked M. Montoya to follow Shelden back to the back of his police car, where he proceeded to write M. Montoya multiple citations. See Complaint ¶¶ 17-19, at 4. When Shelden asked M. Montoya to sign the citations, M. Montoya "asked a question regarding one of the violations to clarify a number on the violation, when Defendant Shelden became enraged, and cursed at Plaintiff Michael Montoya, and began to physically assault him," grabbing M. Montoya by the back of the head and "repeatedly slamm[ing] his head into the truck of [Shelden's] police car." Complaint ¶¶ 21-22, at 4. Shelden then placed M. Montoya under arrest. See id. ¶ 23, at 5.
Upon seeing Shelden assaulting M. Montoya, D. Montoya got out of the car to try to reason with Shelden and the other Defendant, APD Officer Angelo Lovato. See Complaint ¶ 24, at 5. The Defendants yelled at D. Montoya to get back in the car. See id. ¶ 25, at 5. D. Montoya got back in the car, and when one of the officers approached the car, D. Montoya
Sanner, M. Montoya's girlfriend and the mother of his child, was with the Montoyas at their home before the Montoyas left and before Shelden cited them. See Transcript of Hearing at 29:10-12 (September 19, 2012) (Oliveros) ("Tr.").
Both Montoyas have criminal records, both having been arrested and/or charged with other crimes in the past. See Supplement to Plaintiffs' First Motion in Limine [Doc. 55] at 1-2, filed September 12, 2012 (Doc. 62) ("MIL Supplement"). Both Montoyas had also been cited for multiple traffic violations before Shelden cited them on April 17, 2007. See id. at 1-2. M. Montoya has been arrested multiple times, both before and after April 17, 2007, and has been arrested for charges related to domestic abuse of Sanner. See Supplement to Plaintiffs' First Motion in Limine [Doc 55] at 2, filed September 12, 2012 (Doc. 62) ("MIL Supplement"). Though it was not Defendant APD arresting, charging, or citing the Montoyas in all of these instances, a number of the instances did involve the Albuquerque Police Department.
On April 15, 2010, the Montoyas filed their Complaint asserting claims for violations of the Fourth Amendment to the United States Constitution against the Defendants, including claims of false imprisonment and arrest, excessive force, and unlawful detention. See Complaint ¶¶ 37, 41, 44, 47, at 6-8. In Count V, the Montoyas assert a malicious-prosecution claim. See Complaint ¶ 48, at 8.
On September 4, 2012, the Montoyas filed their Motion in Limine asking the Court to exclude any evidence prohibited under the rule 404 of the Federal Rules of Evidence, and, in particular, "any criminal history of Plaintiff Michael Montoya." Motion in Limine at 1. In the MIL Supplement, the Montoyas anticipate that the Defendants will "seek to elicit inadmissible evidence of the Plaintiffs' prior and/or subsequent
The Defendants filed the Defendants' Response to Plaintiffs' First Motion in Limine and Supplement to Plaintiffs' First Motion in Limine on September 17, 2012. See Doc. 64 ("MIL Response"). The Defendants argue that the evidence which the Montoyas seek to exclude is probative, admissible under rule 404(b), and "also admissible for purposes of establishing bias, and to rebut Plaintiff Michael Montoya's claim for damages." MIL Response at 1. They contend that M. Montoya's previous traffic citations are admissible to establish M. Montoya's knowledge of his obligation to sign the traffic citations in lieu of arrest, because one of the issues in the case is "whether there was probable cause to arrest M. Montoya for his refusal to sign the traffic citations." MIL Response at 2. They assert that, because APD has arrested and prosecuted both Montoyas, the Court should permit the Defendants to explore their arrests on cross-examination to establish the Montoyas' bias and motive to lie. MIL Response at 2. The Defendants note that M. Montoya is seeking emotional distress damages and lost job opportunities because of the Defendants' conduct, and they argue that "[e]vidence of [M. Montoya's] criminal history should be admitted to rebut his claim that he was somehow emotionally harmed as a result of his arrest." MIL Response at 3. The Defendants "seek to cross examine Plaintiff Michael Montoya into [sic] whether his prior criminal history, arrests, and other traffic citations cause him more emotional trauma than the subject incident involving defendants." MIL Response at 4.
The Court held a hearing on September 19, 2012. At the hearing, the Montoyas asserted that M. Montoya is "not a felon," because he has been charged only with criminal offenses in the past, but all of the charges were dismissed. Tr. at 20:8-17 (Oliveros). They stated that, to the extent that the Defendants want to inquire into M. Montoya's charges on cross-examination to rebut any claims of emotional distress damages, the charges are of unrelated criminal activity and therefore irrelevant. See Tr. at 20:16-20 (Oliveros). The Montoyas stated that, if the Court does find the charges relevant, because M. Montoya was not convicted of any of the
The Defendants responded that M. Montoya's traffic citations before April 16, 2007, are relevant to establishing his knowledge of the obligation to sign the traffic citations and that his failure to do so would give Shelden probable cause to arrest him. See Tr. at 22:2-10 (Griffin). The Court asked if the parties would agree to the Court limiting the Defendants to asking M. Montoya: (i) whether he has been stopped and cited for traffic violations in the past; and (ii) that he knew that, if he refuses to sign the citations he can be arrested. See Tr. at 22:11-16 (Court). Both the Montoyas and the Defendants agreed that, if M. Montoya were to answer those questions truthfully and correctly, they would agree with the Court so restricting cross-examination. See Tr. at 22:23-23:5 (Oliveros, Court, Griffin). The Defendants contended that, with regard to his other arrests, because M. Montoya is seeking emotional distress damages, the Defendants wish to cross examine M. Montoya on whether he felt he was wrongfully arrested for the previous arrests, and whether he also felt emotionally distressed from those false arrests. See Tr. at 23:12-16 (Griffin). The Defendants asserted that the domestic violence charges were probative of possible bias of Sanner, a witness and the alleged victim of the domestic violence charges, and of the possibility of M. Montoya's undue influence over her testimony. See Tr. at 23:17-24 (Griffin). The Court stated that it believe the past arrests are admissible to rebut the emotional distress claim, and that it is permissible to inquire into why this arrest was different from M. Montoya's other arrests, but the specific nature of the other arrests is not relevant to the emotional distress claim and are not to be explored, nor are the charges against M. Montoya for which he was not arrested. See Tr. at 24:8-24(Court). The Court also stated that, in addition to the number of times M. Montoya was arrested, the number of times APD arrested M. Montoya is also relevant, as it tends to establish M. Montoya's bias against APD. See Tr. at 26:17-23 (Court, Griffin).
The Defendants asked for clarification whether they would be permitted to inquire into M. Montoya's domestic violence charges. See Tr. at 28:8-17 (Griffin). The Court asked whether the Defendants would agree to asking Sanner only whether M. Montoya abused her, and then whether she called the police in response to the abuse, but not associating those calls with M. Montoya's arrests. See Tr. at 28:18-21 (Court). The Defendants stated that they would agree to those boundaries for Sanner's cross-examination. See Tr. at 28:22 (Griffin). The Montoyas asserted that the Court should not let the Defendants inquire into M. Montoya's abuse of Sanner during her cross-examination, because, in light of Sanner providing only limited testimony, the danger of prejudice to M. Montoya substantially outweighs the probative value of M. Montoya's abuse of Sanner in disputing her credibility. See Tr. at 29:9-31:7 (Griffin, Court). The Court responded that the evidence is probative of Sanner's credibility, because she is testifying on M. Montoya's behalf to show that the Defendants' arrest has emotionally damaged him, and the evidence's possible prejudice to the Montoyas does not outweigh its probative value in showing her bias and credibility. See Tr. At
Rule 403 provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. Under rule 403, the trial court must weigh the proffered evidence's probative value against its potential for unfair prejudice. See United States v. Record, 873 F.2d 1363, 1375 (10th Cir.1989). "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d 626, 638 (10th Cir.2006) (quoting United States v. Sides, 944 F.2d 1554, 1563 (10th Cir.1991)) (emphasis in original). "In performing the 403 balancing, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value." Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1274 (10th Cir.2000). The "exclusion of evidence under Rule 403 that is otherwise admissible under the other rules is an extraordinary remedy and should be used sparingly." United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010).
The decision to admit or exclude evidence pursuant to rule 403 is within the trial court's discretion, see United States v. Lugo, 170 F.3d 996, 1005 (10th Cir.1999), and the trial court's discretion to balance possible unfair prejudice against probative value is broad, see United States v. Bice-Bey, 701 F.2d 1086, 1089 (4th Cir.1983); United States v. Masters, 622 F.2d 83, 87-88 (4th Cir.1980). As the Supreme Court of the United States recently noted:
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008) (quoting 1 S. Childress & M. Davis, Federal Standards of Review § 4.02, at 4-16 (3d ed. 1999)).
Evidence is unfairly prejudicial if it makes a conviction more likely because it provokes an emotional response from the jury, or if the evidence otherwise tends to adversely affect the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged. See United States v. Rodriguez, 192 F.3d 946, 951 (10th Cir.1999). "Evidence is not unfairly prejudicial merely because it is damaging to an opponent's case." United States v. Caraway, 534 F.3d 1290, 1301 (10th Cir.2008) (quoting United States v. Curtis, 344 F.3d 1057, 1067 (10th Cir.2003)). Rather, "[t]o be unfairly prejudicial, the evidence must
Rule 404(a) provides that "[e]vidence of a person's character or trait of character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Fed.R.Evid. 404(a). "This rule is necessary because of the high degree of prejudice that inheres in character evidence. In most instances, [the United States Court of Appeals for the Tenth Circuit is] unwilling to permit a jury to infer that an individual performed the alleged acts based on a particular character trait." Perrin v. Anderson, 784 F.2d 1040, 1044 (10th Cir.1986) (citing rule 404 advisory notes).
Rule 404(b) states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). The same evidence, however, may be admissible for other purposes. Permissible purposes include proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. See Fed. R.Evid. 404(b). The Supreme Court of the United States has enunciated a four-part process to determine whether evidence is admissible under rule 404(b). See Huddleston v. United States, 485 U.S. 681, 691-92, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988). The Tenth Circuit has consistently applied that test:
United States v. Zamora, 222 F.3d 756, 762 (10th Cir.2000) (citing United States v. Roberts, 185 F.3d 1125 (10th Cir.1999)). See United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir.2002); United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996).
Rule 404(b)'s prohibition finds its source in the common-law protection of the criminal defendant from risking conviction on the basis of evidence of the defendant's character. See United States v. Dudek, 560 F.2d 1288, 1295-96 (6th Cir.1977); 22 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5239, at 428, 436-37 & 439 (1991). In United States v. Phillips, 599 F.2d 134 (6th Cir.1979), the United States Court of Appeals for the Sixth Circuit noted, in addressing rule 404(b)'s precepts, that the rule addresses two main policy concerns:
United States v. Phillips, 599 F.2d at 136.
The Tenth Circuit has stated that district courts must "identify specifically the permissible purpose for which such evidence is offered and the inferences to be drawn therefrom." United States v. Youts, 229 F.3d 1312, 1317 (10th Cir.2000)
The United States Court of Appeals for the First Circuit has held that evidence of a plaintiff's prior arrest is admissible to rebut to rebut a claim of emotional distress damages in a 42 U.S.C. § 1983 claim. See Udemba v. Nicoli, 237 F.3d 8, 15 (1st Cir.2001) (holding that, where plaintiff alleged emotional distress stemming from publication of his arrest in the newspaper, evidence of publication of a prior arrest for "striking his spouse" was relevant to "the extent of damages attributable to emotional distress."). The Court, in Mata v. City of Farmington, 798 F.Supp.2d 1215 (D.N.M.2011), addressed the admissibility of a plaintiff's prior arrests for purposes of rebutting a claim of emotional distress damages in a § 1983 case. The Court found that admission of the plaintiff's arrest to contest the plaintiff's "asserted emotional distress damages ... [and] to assist the jury in measuring the extent of [the plaintiff]'s damages is a legitimate, non-character based use of the evidence." Mata v. City of Farmington, 798 F.Supp.2d at 1238.
Rule 608 of the Federal Rules of Evidence provides certain mechanisms for attacking witnesses' character for truthfulness or untruthfulness. See Montoya v. Shelden, No. 10-0360, 2012 WL 1132505, at *5 (D.N.M. Mar. 20, 2012) (Browning, J.); United States v. Huerta-Rodriguez, 83 Fed.R.Evid. Serv. 681, 2010 WL 3834061, at *7 (D.N.M.2010) (Browning, J.). Rule 608(a) states:
Fed.R.Evid. 608(a). Rule 608(b) provides the rule for admission of specific instances of conduct:
Fed.R.Evid. 608(b). "Under Federal Rule of Evidence 608(b), specific unrelated instances of a witness's prior misconduct may be used to impeach the witness at the discretion of the court, however, only to
United States v. Lafayette, 983 F.2d 1102, 1106 (D.C.Cir.1993).
Rule 608 was amended in 2003 "to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness' character for truthfulness," and not "to bar extrinsic evidence for bias, competency and contradiction impeachment." Fed.R.Evid. 608 advisory committee's note to 2003 amendment. It is thus "permissible impeachment to expose a witness's bias." United States v. Baldridge, 559 F.3d 1126, 1135 (10th Cir.2009) (citing United States v. Abel, 469 U.S. 45, 51, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984)). "Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." United States v. Abel, 469 U.S. at 52, 105 S.Ct. 465 (1984). Thus, because bias is never collateral, "it is permissible to [prove bias] by extrinsic evidence." Montoya v. City of Albuquerque, No. CIV 03-0261, 2004 WL 3426435, at *4 (D.N.M. May 18, 2004) (Browning, J.). The Tenth Circuit describes bias, based on its definition at common law, as "the relationship between a witness and a party which might cause the witness to slant his testimony for or against the party." United States v. Baldridge, 559 F.3d at 1135 (citing United States v. Abel, 469 U.S. at 52, 105 S.Ct. 465).
The United States Court of Appeals for the Ninth Circuit has held that evidence of a Plaintiff's prior arrest by the police department against whom the plaintiff is bringing a § 1983 claim are relevant and admissible for purposes of establishing the plaintiff's bias against the police department. See Heath v. Cast, 813 F.2d 254, 259-260 (9th Cir.1987) (holding that evidence of plaintiff's prior arrests and his brother's misdemeanor charges by the police department, against whom he was bringing a § 1983 claim for unlawful arrest and excessive force, was admissible to show bias); Barkley v. City of Klamath Falls, 302 Fed.Appx. 705, 706 (9th Cir. 2008) (unpublished) (holding that the district court did not abuse its discretion by "admitting evidence of [the plaintiff]'s prior arrest ... to show bias against the defendants, who work for the same police department.").
In Montoya v. City of Albuquerque, the plaintiffs moved to admit evidence that one defendant had arranged an affair between the other defendant and his female acquaintance, reasoning that it went to the defendants' bias to testify favorably for each other. See 2004 WL 3426435, at *1. The defendants argued evidence of the affair was not relevant to the excessive force and false arrest claims against the defendants, or that if it was relevant, it
The Court will grant in part and deny in part the Montoyas' Motion in Limine. To the extent that the Montoyas seek to exclude "any criminal history of Plaintiff Michael Montoya," the Court will allow limited inquiry into M. Montoya's admissible prior bad acts and arrests. Because one of the issues in controversy in the case is whether M. Montoya knew that his refusal to sign the citations that Shelden issued him gave Shelden probable cause to arrest M. Montoya, the Court will allow the Defendants to ask M. Montoya whether he knew that he was required to sign the citations, or face arrest. If he disclaims knowledge of such an obligation, the Court will then allow the Defendants to inquire about whether he received traffic citations in the past as circumstantial evidence of M. Montoya's knowledge. The Court will also allow the Defendants to inquire into how many times M. Montoya has been arrested and how many of those arrests APD performed. The Court will not, however, allow the Defendants to inquire into the circumstances of those arrests. Because Sanner is testifying on the Montoyas' behalf, the Court will allow the Defendants to inquire into M. Montoya's domestic violence charge for M. Montoya's alleged abuse of Sanner to prove bias or to bring into question Sanner's credibility.
The Montoyas move the Court to exclude M. Montoya's past traffic charges under rule 404, asserting that they "have no probative value to the claims or defenses in this case." MIL Supplement at 3. The Defendants contend, however, that, although the prior traffic citations is evidence of a prior charge or crime, it is admissible under rule 404(b)(2), because it is offered to show M. Montoya's knowledge of the requirement that he sign the citation in lieu of arrest. See MIL Response at 2. Evidence of prior crime, wrong, or bad act, including a traffic citation, is "not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Fed.R.Evid. 404(b)(1). It "may be admissible," however, when offered for a proper purpose, such as proving that the prior crime, wrong, or bad act provided the person with knowledge of the conduct's consequences. Fed.R.Civ.P. 404(b)(2). The Defendants' contention that M. Montoya's past traffic citations provided him with knowledge that, if he chose not to sign the Shelden's citations, the consequences would be his arrest, is a permitted use under rule 404(b)(2), and may be admissible. Nevertheless, the Court must also determine that the evidence is relevant, and that the potential for unfair prejudice does not substantially outweigh the similar conduct's probative value. See United States v. Zamora, 222 F.3d at 762.
The third part of the admissibility analysis under rule 404(b) requires the Court to make a rule 403 determination to ensure a danger of unfair prejudice does not substantially outweigh the similar conduct's probative value. Any past crime, wrong, or bad act is, to be sure, prejudicial. That evidence is prejudicial, however, does not require its exclusion: "[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter [under rule 403]." United States v. Pettigrew, 468 F.3d at 638. Because traffic citations are commonplace in our society, traffic citations are not evidence that tends to unfairly prejudice a person by exerting an undue influence on the decision of the jury; traffic citations do not tend to evoke an emotional response in the common person. See United States v. Caraway, 534 F.3d at 1301 ("To be unfairly prejudicial, the evidence must have an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."). The danger of unfair prejudice does not therefore substantially outweigh the probative value of the admission of M. Montoya's prior traffic citations to establish knowledge.
Evidence of a prior
M. Montoya alleges that he has suffered emotional distress damages and lost future job opportunities because of his false arrest. The Defendants assert that, to rebut this demand for damages, and to prove to the jury the extent of M. Montoya's emotional distress damages are not as he argues they are, the Court should allow the Defendants to inquire into how this arrest differed from his prior arrests. Under rule 404(b), "admission of evidence of other bad acts to assist the jury in measuring the extent of damages is a legitimate, non-character-based use of such evidence." Udemba v. Nicoli, 237 F.3d at 15 (citing Lewis v. District of Columbia, 793 F.2d at 363).
With regard to the circumstances of the arrests, explaining to the jury the way in which this arrest differed from those in the past will help to substantiate or rebut M. Montoya's requested emotional distress damages. That a defendant has been arrested multiple times in the past does not necessarily mean that the defendant would not be emotionally distressed each one of those times or more emotionally distressed on one occasion than another. If a great deal of time has passed since M. Montoya's arrests, the jury may find with the passage of time M. Montoya was more emotionally distressed than if the arrests were recent. Similarly, if, as the Montoyas allege, the Defendants used excessive force during their arrest in violation of their civil rights, or if the Defendants conduct was particularly egregious in some other way in this case, even if M. Montoya has been arrested a number of times in the past, by contrasting how the Defendants' arrest here compared with his other arrests allows M. Montoya to show to the jury that the Defendants' conduct emotionally distressed him. If, on the other hand, the Defendants can show that their conduct in arresting M. Montoya was similar to the conduct of other police officers arresting M. Montoya in the past, it will assist the jury in measuring M. Montoya's emotional distress damages by allowing the jury to infer that his emotional distress in this instance was not as substantial as he may assert. See United States v. Valencia-Montoya, No. CR 11-2990, at 11 ("Uncharged, unrelated crimes or bad acts may be probative ... whether the acts involved previous conduct or conduct subsequent to the charged offense if the uncharged acts are similar to the charged crime and sufficiently close in time.") The Defendants' cross-examination into how M. Montoya's other arrests differed from the arrest in this case, therefore, is relevant to his claim for emotional distress damages, and the Defendants are offering the evidence for the proper purpose of assisting the jury determine the amount of damages, if any, to which he is entitled.
Allowing the Defendants free reign to cross-examine M. Montoya on the circumstances of his arrests, however, has the potential to get to the point in which the danger of unfair prejudice or confusion of the issues may substantially outweigh the probative value of evidence about the way
The Defendants contend that the Montoyas' past arrests and charges are admissible for the limited purpose of establishing bias. The Montoyas argue that the prior arrests and charges are irrelevant,
The Defendants contend that, even if the Court finds that the circumstances of M. Montoya's prior arrests and criminal charges are not admissible, M. Montoya's prior criminal charge for assault of a household member and his arrest for domestic violence are admissible against Sanner, a witness testifying on M. Montoya's behalf, for purposes of questioning her credibility by showing bias. The Montoyas assert that M. Montoya's prior arrest and charges for domestic violence
M. Montoya's prior abuse of Sanner goes to the credibility of Sanner's testimony, because the jury could infer from these specific instances of conduct that M. Montoya and Sanner's relationship is such that M. Montoya maintains a position of influence over Sanner, such that he can influence her to slant her testimony for his benefit. See Thomas v. Lampert, 349 Fed. Appx. 272, 277-278 (10th Cir.2009) (holding that the admission of past incidences of the defendant's domestic abuse of the victim, a witness in the criminal trial against the abuser, to "explain [the victim's] loyalty to the [defendant] despite his violent tendencies," was not improper). Because the past instances of domestic abuse in M. Montoya's relationship with Sanner suggest that Sanner's testimony may be biased in favor of M. Montoya, the Court will allow the Defendants to cross-examine Sanner about M. Montoya's past abuse of her. See Montoya v. City of Albuquerque, 2004 WL 3426435 (finding that evidence of one defendant setting up an affair for the other defendant was admissible to show bias).
The Defendants argue that, although Sanner may be biased in favor or against M. Montoya, D. Montoya, M. Montoya's brother and co-plaintiff, was not charged or alleged to be involved in any of M. Montoya's past arrests or charges for domestic violence. The Montoyas assert that M. Montoya's past charges and arrests in connection with Sanner are irrelevant and unfairly prejudicial to D. Montoya, because, with regard to D. Montoya, Sanner is testifying only as a fact witness to the facts that she saw him laying in the street, detained by the Defendant Officers, and that he was red in the face. The Montoyas contend that the Court should thus exclude the evidence of M. Montoya's abuse of Sanner, because D. Montoya and M. Montoya are co-plaintiffs, and any prejudicial effect the introduction of the evidence has necessarily hurts D. Montoya's case also. D. Montoya is M. Montoya's brother, however, and, because of that relationship, Sanner's feelings towards D. Montoya are likely not indifferent. Sanner therefore also may have a bias to testify in D. Montoya's favor, even if that bias is perhaps not as substantial as it is with regard to M. Montoya. See United States v. Abel, 469 U.S. at 52, 105 S.Ct. 465 ("Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self interest."). The bias of a witness, even a fact witness, no matter how large or how small, is not a collateral issue.
As with the admission of M. Montoya's prior arrests for a proper purpose above, even though evidence of M. Montoya's prior abuse of Sanner is relevant to her credibility and admissible to show bias, it is the Court's role to attempt to ensure that the evidence's prejudice to the Montoyas does not outweigh its probative value of admission. See Fed.R.Evid. 403. The jury, as finder of fact and weigher of credibility, needs some information regarding the circumstances of M. Montoya's abuse of Sanner so that it may assess to what extent Sanner may be biased in favor or
The Defendants also request that the Court permit them to inquire into APD's arrests of the Montoyas, because such evidence is probative of the Montoyas' bias against APD, and also makes Shelden and Lovato's story, that the Montoyas' resisted arrest, more probable. The Montoyas contend that their prior arrests by APD are not relevant to the case, as they do not sufficiently establish a bias against APD. The Montoyas assert that, to the extent that the Montoyas may have a bias against APD, however, prior arrests by APD officers, none of whom were by Shelden or Lovato, have little if any probative value of bias, and the danger of unfair prejudice that introduction into evidence of their other arrests will have substantially
Because Shelden or Lovato did not arrest the Montoyas in the past, the probative value of the prior arrests comes only from the admission that they have had interactions with and been arrested by APD in the past, and that they thus have a possible bias against APD and APD officers. The danger of unfair prejudice to the Montoyas of that information substantially outweighs the minimal probative value that may be added from admission of most of the circumstances of the arrests or by admission of the number of times that APD has charged each of the Montoyas other than in this case. The Court is allowing the Defendants to admit a great amount of relevant and admissible information that is prejudicial to the Montoyas for purposes of establishing the Montoyas' bias against APD, to rebut M. Montoya's claims of emotional distress damages, and to establish Sanner's possible bias. Thus, although there is probative value in admitting that APD has arrested and charged the Montoyas in the past to substantiate Shelden and Lovato's side of the story that the Montoyas were resisting arrest, the Court finds that the danger of unfair prejudice of admitting the charges in addition to the number of APD arrests substantially outweighs the minimal probative value the charges add to the admission of APD's arrests of the Montoyas. As agreed to by the parties at the hearing, the Court will therefore allow the Defendants to cross-examine about the Montoyas about APD arrests and charges, other than for the incident underlying the charges in this case, only on: (i) whether APD criminally charged them; and (ii) how many times APD has ever arrested them. The Defendants are not otherwise permitted to inquire about the circumstances of the charges or arrests, except as permitted in this Memorandum Opinion and Order.
