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excluding expert opinion in deliberate indifference case about what Defendants did not know
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Civil Action No. 13-cv-1945-WJM-SKC
11-15-2018
Tyler SANCHEZ, Plaintiff, v. Mike DUFFY, Detective, in his individual capacity, Heather Mykes, Detective in her individual capacity, Board of County Commissioners of Douglas County, and Douglas County Sheriff's Office, Defendants.
John A. Culver, Adam William Ray, Seth J. Benezra, Benezra & Culver, P.C., Denver, CO, for Plaintiff. Kelly Dunnaway, Christopher Kirk Pratt, Dawn Lynnette Johnson, Megan Leigh Taggart, Douglas County Attorney's Office, Castle Rock, CO, Gordon Lamar Vaughan, Vaughan & DeMuro-Colorado Springs, Colorado Springs, CO, for Defendants.
John A. Culver, Adam William Ray, Seth J. Benezra, Benezra & Culver, P.C., Denver, CO, for Plaintiff.
Kelly Dunnaway, Christopher Kirk Pratt, Dawn Lynnette Johnson, Megan Leigh Taggart, Douglas County Attorney's Office, Castle Rock, CO, Gordon Lamar Vaughan, Vaughan & DeMuro-Colorado Springs, Colorado Springs, CO, for Defendants.
OMNIBUS ORDER ON PRETRIAL MOTIONS AND RELATED MATTERS
William J. Martinez, United States District Judge
Any foray into "the arena [of malicious prosecution as a constitutional tort] is likely to leave you looking for the exits." Cordova v. City of Albuquerque , 816 F.3d 645, 662 (10th Cir. 2016) (Gorsuch, J., concurring in judgment). This is all the more true after considering the parties' many interlocking pretrial motions currently before the Court, namely:
• Sanchez's Motion to Limit Defendants' Expert Testimony Under F.R.E. 702 (ECF No. 269);
• Defendants' Rule 702 Motion to Exclude Expert Testimony of Plaintiff's Psychiatrists (ECF No. 270);
• Defendants' Rule 702 Motion to Exclude Expert Testimony of Charles Honts (ECF No. 273)
• Defendants' Rule 702 Motion to Exclude Expert Testimony of Richard Spiegle (ECF No. 274);
• Defendants' Rule 702 Motion to Exclude Expert Testimony of Iris Eytan (ECF No. 275);
• Sanchez's Motions in Limine (ECF No. 286); and
• Defendants' Motions in Limine (ECF No. 297); and
• Sanchez's Motion to Strike Defendants' Affirmative Defense (ECF No. 310).
Throughout this order, "Defendants" refers to Mykes and Duffy, unless the context requires otherwise. "Defendants' " various pending motions are technically on behalf of all defendants, but none of the motions addresses municipal liability. They exclusively focus on the direct claim of malicious prosecution asserted against Mykes and Duffy.
The Court's analysis below presumes familiarity with the detailed facts of this case, reported elsewhere. See Sanchez v. Hartley , 299 F. Supp. 3d 1166 (D. Colo. 2017) (" Sanchez III "). For the reasons explained in this Order, Defendants' Rule 702 motion addressed at Sanchez's psychiatric experts is granted, Defendants' Rule 702 motion directed at Charles Honts is granted, and Sanchez's motion to strike an affirmative defense is granted. The remainder of the motions are granted in part and denied in part.
I. DEFENDANTS' OBJECTIVE-VERSUS-SUBJECTIVE ARGUMENT
Among the various filings at issue, Defendants twice insert footnotes arguing that the forthcoming trial is proceeding on an entirely unprecedented theory because their subjective state of mind is at issue. Defendants claim that this theory has been rejected by courts around the country, and so, at a minimum, Defendants should be entitled to qualified immunity for lack of clearly established law. (See ECF No. 275 at 2 n.1; ECF No. 297 at 2 n.1.) Defendants raise this issue again in a pretrial statement of issues requiring resolution. (ECF No. 323 at 3.)
The Court explained why qualified immunity cannot apply in these circumstances in its order denying Defendants' motion to dismiss. Sanchez v. Hartley , 65 F. Supp. 3d 1111, 1124–25 (D. Colo. 2014) (" Sanchez I "). The Tenth Circuit explained as much again when it affirmed this Court's order, including by pointing out that Defendants' counterarguments "reflect[ed] confusion on Mr. Sanchez's claim." Sanchez v. Hartley , 810 F.3d 750, 759 (10th Cir. 2016) (" Sanchez II "), cert. denied , ––– U.S. ––––, 137 S. Ct. 1372, 197 L.Ed.2d 553 (2017). And this Court revisited the issue yet again in its Summary Judgment Order, similarly noting that Defendants were "ignor[ing] Sanchez's actual theory." Sanchez III , 299 F. Supp. 3d at 1192. But, in hopes of preventing the forthcoming trial from being bogged down in needless argument (such as an ill-advised and misdirected Rule 50(a) motion), the Court will attempt once more to help Defendants understand why they have not been granted qualified immunity—and why their subjective state of mind may be considered by the jury.
The elements of a Fourth Amendment malicious prosecution claim are: "(1) the defendant caused the plaintiff's continued confinement or prosecution; (2) the original action terminated in favor of the plaintiff; (3) no probable cause supported the original arrest, continued confinement, or prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained damages." Wilkins v. DeReyes , 528 F.3d 790, 799 (10th Cir. 2008). This Court has held that a plaintiff may satisfy the malice element—a state-of-mind element—by proving that the defendant knowingly or recklessly (a) relied on false information or (b) omitted material facts. Sanchez III , 299 F. Supp. 3d at 1190. Sanchez has made abundantly clear that "malice, type (b)" is how he plans to prove that element of his claim, i.e. , by persuading the jury that Defendants Mykes and Duffy knew that Sanchez falsely confessed, or recklessly disregarded a strong suspicion that Sanchez falsely confessed, but they withheld that knowledge or suspicion from the appropriate gatekeepers, such as the judge that issued the arrest warrant. See id . at 1192, 1197–1202.
This is what prompted Defendants' most recent arguments claiming that the theory of liability is unprecedented. Defendants argue, for example, that the "substantial weight of Fourth Amendment jurisprudence consistently conclud[es] that Fourth Amendment violations cannot be predicated on an officer's subjective beliefs or opinions." (ECF No. 297 at 2 n.1; see also ECF No. 323 at 3.) None of Defendants' cited cases addresses the malice element of a malicious prosecution claim, and Defendants apparently refuse to accept that the Tenth Circuit itself includes malice among the elements of the cause of action—meaning that only the Tenth Circuit en banc or the Supreme Court can change it.
In addition, Defendants focus on the malice element to the exclusion of the probable cause element, which addresses their concerns. Defendants must ask themselves, "Does the law permit me to place facts I know to be false in a warrant affidavit? Or to knowingly omit exculpatory facts?" The Court hopes it is obvious that the answer is "no." See Franks v. Delaware , 438 U.S. 154, 155–56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ; United States v. Merton , 274 F. Supp. 2d 1156, 1166 (D. Colo. 2003). Nonetheless, even if an official violates these rules, there remains an objective component to consider. The Court cannot invoke the exclusionary rule (in a criminal proceeding) and a jury cannot find liability (in a civil proceeding) without first analyzing whether probable cause existed despite the fabrications or omissions:
If an arrest warrant affidavit contains false statements, the existence of probable cause is determined by setting aside the false information and reviewing the remaining contents of the affidavit. Where information has been omitted from an affidavit, we determine the existence of probable cause by examining the affidavit as if the omitted information had been included and inquiring if the affidavit would still have given rise to probable cause for the warrant.
Taylor v. Meacham , 82 F.3d 1556, 1562 (10th Cir. 1996) (internal quotation marks and citation omitted). This is "an objective standard" that does not turn on "the subjective belief of an individual officer as to whether there was probable cause for making an arrest." Koch v. City of Del City , 660 F.3d 1228, 1239 (10th Cir. 2011) (internal quotation marks; alterations incorporated); see also Sanchez III , 299 F. Supp. 3d at 1193 n.19 ("... an official who introduces false evidence into an investigation is not necessarily liable. If probable cause would have existed absent the false evidence, a malicious prosecution claim would fail on the probable cause element ...." (emphasis in original)).
Accordingly, even if Sanchez can establish that Defendants knowingly or recklessly failed to disclose material information, Defendants cannot be held liable based on that subjective state of mind unless it is also true that objective probable cause did not exist but for their alleged fabrications and omissions. The presence of both a malice element and an objective probable cause element makes it harder, not easier, for a malicious prosecution plaintiff to prove his or her claim. Cf. Pierce v. Gilchrist , 359 F.3d 1279, 1295 (10th Cir. 2004) (referring to the probable cause element as a "heavy burden").
Nonetheless, assuming Sanchez can persuade a jury on the malice and probable cause elements, and on the other three elements of his claim, it has been clearly established for many years that Defendants may be liable. See Sanchez II , 810 F.3d at 755–56. The Court suspects that Defendants understand this. Their recent arguments, and their rhetoric in many prior briefs, suggests that they are simply offended and incredulous that Sanchez can go to trial on the theory that they secured his prosecution in bad faith. Perhaps this is because the Supreme Court has broadened qualified immunity to the point where these Defendants have never before been required to defend themselves in front of a jury. But qualified immunity is still qualified , not absolute, and Defendants' indignation is not a legal defense. Defendants should look at the forthcoming trial as an opportunity to defend their reputations, not as some sort of affront to their status as law enforcement officers.
In all events, Defendants' disagreement with this Court and with the Tenth Circuit is obvious and Defendants' have preserved their record—not just minimally preserved, but mosquito-in-amber preserved, from which a party could extract and recreate the entire argument many years into the future. It now borders on bad faith for Defendants to continue to press this point, at trial or otherwise. To the extent Defendants intend to re-raise it at trial, such as in an evidentiary objection or a Rule 50(a) motion, the Court deems Defendants to have made such an objection or motion and the Court rejects it. It need not trouble this litigation any further.
At one point in the filings currently at issue, Defendants offhandedly assert that Sanchez's theory "is not that [Defendant's] coerced [his confession] but that they purportedly ‘knew’ it was false and relied on it anyway." (ECF No. 291 at 13.) The Court is concerned with the first half of the sentence, which appears to be another example of Defendants attempting to unjustifiably recharacterize Sanchez's arguments. Defendants are correct that Sanchez cannot assert Defendants' direct coercion of his oral or written confessions to the Quarry Hill incident because it was former Defendants Wolff and Hartley that obtained the oral confession (before Mykes and Duffy became involved), and it was former Defendant Dickson that persuaded Sanchez to provide a written confession (when Mykes and Duffy were not in the room). See Sanchez III , 299 F. Supp. 3d at 1172–74, 1182–83. However, from the factual record presented at summary judgment, Sanchez plainly intends to assert that Defendants contributed to that confession by wearing Sanchez down in the preceding interrogation and suggesting details to him that Sanchez eventually included in his written confession. See id. at 1174–79. Defendants therefore cannot argue that they have not been on notice of Sanchez's plan to attempt to prove malice in part through evidence and argument directed at this aspect of what Sanchez perceives to be witness coercion.
II. THE COURT'S RULE 56(f) ORDER RE: FAVORABLE TERMINATION
On October 26, 2018, the Court issued an order under Federal Rule of Civil Procedure 56(f), informing Defendants that the Court was considering entering summary judgment against them on the favorable termination element of Sanchez's claim. (ECF No. 314.) The Court provided Defendants until noon on October 31 to respond, and Defendants timely filed a response. (ECF No. 330.) Defendants' response convinces the Court that it should not, on this abbreviated record, grant summary judgment sua sponte . The Court will therefore allow the matter to proceed to trial. In so doing, the Court expresses no opinion on the relevance or admissibility of any particular item of expected testimony from Chief Deputy District Attorney John Topolnicki, whom Defendants plan to call as a witness on the matter of dismissing the charges against Sanchez. (See ECF No. 330 at 2–3.) The Court further expresses no opinion on whether Topolnicki's expected testimony would be enough to defeat a Rule 50(a) motion from Sanchez on the favorable termination element.
Sanchez's non-motion request to exclude Topolnicki's testimony (see ECF No. 341) is denied per D.C.COLO.LCivR 7.1(d) and WJM Revised Practice Standard III.B, and also for substantially the same reasons the Court denies Sanchez's request to exclude the testimony of ADA Sugioka (Part IX.A, below).
Moreover, the Court finds it appropriate to explain its view of favorable termination, which informs other rulings below and potentially the scope of Topolnicki's testimony. The Tenth Circuit's current approach to the favorable termination element traces to Wilkins v. DeReyes , 528 F.3d 790 (10th Cir. 2008), which drew heavily on the discussion of that element in the Restatement (Second) of Torts ("Restatement"). See id. at 802–04. Wilkins established that not all prosecutorial decisions to abandon a prosecution are favorable terminations. Abandonments prompted by suppression of evidence on "technical" grounds (e.g. , the evidence was obtained in violation of the Fourth Amendment) are not favorable, id. at 803–04, whereas a prosecutor's conclusion that a case cannot be proved beyond reasonable doubt "can be consistent with the innocence of the accused and can be deemed a favorable termination," id. at 803. So, when a prosecution terminates because the prosecutor decides to abandon it, the favorable termination element is judged by "look[ing] to the stated reasons for the dismissal as well as to the circumstances surrounding it in an attempt to determine whether the dismissal indicates the accused's innocence." Id. "The dispositive inquiry is whether the failure to proceed implies a lack of reasonable grounds for the prosecution." Id. (internal quotation marks omitted). This is a fact question on which the plaintiff bears the burden. Id.
One Tenth Circuit decision appears to contradict the notion that favorable termination is a fact question, declaring that "whether a termination was ‘favorable’ presents a legal question." Margheim v. Buljko , 855 F.3d 1077, 1088 (10th Cir. 2017). Because this contradicts the weight of Tenth Circuit authority discussed in this Order, the Court presumes Margheim meant to say that favorable termination, like all fact questions, may be resolved as a matter of law in certain circumstances.
Cases since Wilkins have essentially adhered to its standards, with slight elaborations. In Cordova v. City of Albuquerque , 816 F.3d 645 (10th Cir. 2016), the Tenth Circuit addressed the worry that prosecutors could manipulate the process of dismissing charges specifically to frustrate the favorable termination element of an anticipated malicious prosecution lawsuit. Id . at 652. The court responded that "individual consideration of the circumstances surrounding each dismissal adequately addresses this concern." Id . In other words, a malicious prosecution plaintiff is free to make the case that there was more to the dismissal than the explanation given by the prosecutor.
In M.G. v. Young , 826 F.3d 1259 (10th Cir. 2016), the Tenth Circuit emphasized that a reasonable jury's conclusion regarding favorable termination must be "based on more than just speculation." Id . at 1263. In that case, guilty pleas and resultant sentences were vacated when it became clear that a "voluntary reserve officer for the police department" filed and prosecuted misdemeanor charges without state authority. Id . at 1261–62. The petition leading to that vacatur contained a combination of what the Tenth Circuit described as "both evidentiary and technical grounds for vacating Plaintiffs' convictions," and the state court's order granting the petition contained no explanation of what arguments the state court found persuasive. Id . at 1264. The Tenth Circuit affirmed the district court's grant of summary judgment against the plaintiffs on the favorable termination element because the plaintiff had gathered no evidence that the state court had been swayed by evidentiary arguments as compared to "the technical argument that a criminal conviction secured by an individual with no prosecutorial authority is void." Id . M.G. thus stands for the proposition that a malicious prosecution may seek to prove the criminal court judge's motivations.
Most recently, in Montoya v. Vigil , 898 F.3d 1056 (10th Cir. 2018), the Tenth Circuit stated that "[a]n acquittal due to innocence is, of course, the gold standard for showing proceedings terminated in the plaintiff's favor. And a plaintiff obviously meets the element if a court vacated the conviction because the plaintiff was factually innocent." Id . at 1066 (internal quotation marks omitted). But when the stated reasons for dismissing the charges are ambiguous about innocence, "we look to the totality of the circumstances," including the stated reasons, to answer "whether the dismissal indicates the accused's innocence." Id . at 1066 (internal quotation marks omitted).
The difficulty with this case law is the problematic connection between the element itself—"the original action terminated in favor of the plaintiff," Wilkins , 528 F.3d at 799 —and the concept of "innocence." This problem goes back to the Restatement, which announces that "[p]roceedings are ‘terminated in favor of the accused’ ... only when their final disposition is such as to indicate the innocence of the accused." Restatement § 660 cmt. a. "Innocence" is a problem because, in the American criminal justice system, the best outcome a criminal defendant can hope for is a "not guilty" verdict, not an "innocent" verdict. Juries are never asked to decide whether a criminal defendant is innocent, but only whether the government has proven the defendant's guilt beyond a reasonable doubt. So what the Tenth Circuit declared to be the "gold standard," i.e. , "[a]n acquittal due to innocence," Montoya , 898 F.3d at 1066, is impossible to obtain—unless the Tenth Circuit means to suggest that a malicious prosecution parties are free to reargue the criminal case in hopes of persuading the civil jury that, on the one hand, the criminal jury was convinced of the criminal defendant's innocence, or, on the other hand, that the criminal jury would have convicted under a less stringent burden of proof. The Court strongly doubts this is what the Tenth Circuit had in mind, if only because the Restatement lists "acquittal" as favorable termination per se . Restatement § 659(e) ("Criminal proceedings are terminated in favor of the accused by * * * an acquittal ...."); id . § 660 (discussing situations when "[a] termination of criminal proceedings in favor of the accused other than by acquittal is not a sufficient[ly favorable] to meet the requirements of a cause of action for malicious prosecution" (emphasis added)).
Sanchez was not acquitted, so the question of the "gold standard" does not arise directly in this case. However, given that the "gold standard" will never explicitly be met, it throws into doubt the sort of evidence that a malicious prosecution plaintiff is expected to present in the indicative-of-innocence-under-all-the-circumstances scenario. Of particular relevance to the arguments in the parties' various pending motions: may the plaintiff focus on introducing evidence of his factual innocence and rely on that evidence to support favorable termination?
The Court's review of Wilkins , Cordova , M.G. , and Montoya suggests that the answer is "no." In those cases, the Tenth Circuit focused specifically on the circumstances surrounding the prosecutor's decision to abandon the case and/or the judge's decision to grant the prosecutor's motion to dismiss. In any given case, those circumstances naturally may include evidence suggesting factual innocence, but only if known to the prosecutor and court at the time of dismissal. In other words, a malicious prosecution plaintiff may not put on a freestanding innocence case to satisfy the favorable termination element. The plaintiff may not, for example, draw on later-discovered evidence of innocence to prove that the "the dismissal indicates the accused's innocence," Montoya , 898 F.3d at 1066, because the focus of the favorable termination element is the dismissal that actually happened , not some dismissal that might have happened if the prosecution had continued and more exculpatory evidence had come to light.
So too, a malicious prosecution defendant may not defeat favorable termination by putting on an "after-acquired evidence" case that the plaintiff was actually guilty. Whether such evidence could be relevant to damages, analogous to an employment discrimination lawsuit, is not at issue in this lawsuit.
Also, favorable termination does not stand or fall with the prosecutor's or judge's subjective beliefs about the criminal defendant's innocence. If the case were otherwise, serious privilege questions would arise as malicious prosecution litigants sought to depose prosecutors and judges about their mental impressions (either to elicit them in the first place, or to explore the sincerity of subjective opinions already disclosed). Those subjective beliefs, to the extent they are known, are simply more evidentiary data points for the jury to consider. If a jury learns from a judge's dismissal order, for example, that the judge was skeptical about the criminal defendant's innocence, the jury would still be free to conclude from all the circumstances known to the judge that "the failure to proceed implie[d] a lack of reasonable grounds for the prosecution," Wilkins , 528 F.3d at 803 (internal quotation marks omitted)—even though the judge subjectively viewed those circumstances differently.
However, precisely because the prosecutor's and/or judge's subjective beliefs are relevant but often not directly accessible due to privilege issues, a plaintiff may attempt to introduce whatever evidence of his or her innocence might have influenced the prosecutor or the judge (because it was known to them when they acted), regardless of whether it is mentioned in, e.g. , the prosecutor's motion to dismiss or the judge's order granting that motion. In other words, a plaintiff may put on a circumstantial case to persuade the jury of the prosecutor's and the judge's state of mind, because that state of mind is one of the circumstances surrounding the dismissal of charges that the jury may consider. See, e.g. , Cordova , 816 F.3d at 651 (noting that the plaintiff had failed to present "any argument [that] the prosecution[ ] [had] misgivings about the likelihood of a conviction " (emphasis added)). Or the plaintiff may seek to prove that, regardless of the judge's or prosecutor's refusal to acknowledge as much, the circumstances known to the prosecutor or judge were, objectively speaking, indicative of innocence.
Finally, the Court turns to the question that originally prompted its Rule 56(f) order, namely, whether Wilkins establishes as a matter of law that favorable termination exists in this case. Wilkins strongly suggests as much: "[i]f the circumstances show that unreliable evidence [referring to a coerced confession] has been suppressed and the prosecution then abandons the case because of lack of sufficient reliable evidence, that would be a circumstance where the dismissal is indicative of innocence." 528 F.3d at 804 (alteration in original); cf . Restatement § 660 cmt. d ("The abandonment of the proceedings because the accuser believes that ... a conviction has, in the natural course of events [i.e. , not because of misconduct], become impossible or improbable, is a sufficient termination in favor of the accused."). The Court is nonetheless willing to entertain Defendants' suggestion that Chief Deputy DA Topolnicki may have testimony to support a circumstance that takes this case out of the Wilkins mold, and as a consequence, the Court allows this question to go to the jury.
To be clear, the Court is not convinced that anything in Defendants' proffered bullet-point summary of Topolnicki's expected testimony (ECF No. 330 at 3) reveals a circumstance that materially distinguishes this case from Wilkins . Nonetheless, the Court finds that the abbreviated Rule 56(f) procedure was not a sufficient opportunity for Defendants to be heard on the issue.
III. RULE 702 STANDARD
Most of the motions under consideration seek to exclude expert testimony under Federal Rule Evidence 702. The Court will therefore set forth the Rule 702 standard once, before analyzing each motion.
Rule 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.
The proponent of the expert testimony bears the burden of proving the foundational requirements of Rule 702 by a preponderance of the evidence. United States v. Nacchio , 555 F.3d 1234, 1241 (10th Cir. 2009) (en banc ).
An expert's proposed testimony also must be shown to be relevant and otherwise admissible. See Adamscheck v. Am. Family Mut. Ins. Co. , 818 F.3d 576, 588 n.7 (10th Cir. 2016). To be relevant, expert testimony must "logically advanc[e] a material aspect of the case" and be "sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute." United States v. Garcia , 635 F.3d 472, 476 (10th Cir. 2011) (alterations in original).
While an expert witness's testimony must assist the jury to be deemed admissible, Fed. R. Evid. 702(a), it may not usurp the jury's fact-finding function, see Specht v. Jensen , 853 F.2d 805, 808 (10th Cir. 1988). The line between what is helpful to the jury and what intrudes on the jury's role as the finder of fact is not always clear, but "[a]n opinion is not objectionable just because it embraces an ultimate issue." Fed. R. Evid. 704.
The trial court's focus under Rule 702 is on the methodology employed by an expert, not on his or her conclusions. Bitler v. A.O. Smith Corp. , 400 F.3d 1227, 1233 (10th Cir. 2005). Ultimately, "the rejection of expert testimony is the exception rather than the rule." Fed. R. Evid. 702 advisory committee's note. "[T]he trial court's role as gatekeeper is not intended to serve as a replacement for the adversary system.... Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Id . (quoting Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) ).
IV. SANCHEZ'S RULE 702 MOTION (ECF No. 269)
A. Major Ijames's Opinions
Defendants plan to call a police practices expert, Major Steve Ijames. Sanchez objects to some, but not all, of Major Ijames's expected opinions.
1. Opinion One: Probable Cause
Major Ijames's first opinion is that former Defendants Wolff and Hartley had probable cause to arrest Sanchez for the Branham Drive trespass. (Ijames Opn. [ECF No. 269-1] at 3–4.) Based on Major Ijames's deposition testimony, Sanchez asserts—and Defendants do not deny—that Ijames "also intends to opine as to whether Defendants Mykes and Duffy had probable cause to arrest Mr. Sanchez for sexual assault." (ECF No. 269 at 4.) Sanchez argues that probable cause "is not a proper subject of expert testimony." (Id .) Sanchez also argues that testimony about former Defendants Wolff and Hartley is generally irrelevant because they are no longer parties. (Id . at 5.)
All citations to expert reports are to their internal pagination, not the pagination inserted in the CM/ECF header.
The Court agrees that testimony regarding whether former Defendants Wolff and Hartley had probable cause is irrelevant. The Court also rejects Defendants' argument that Wolff's and Hartley's probable cause to arrest for the Branham Drive trespass would create a defense to liability for the Quarry Hill sexual assault prosecution. (See ECF No. 285 at 7.) Defendants' cited authority, Van De Weghe v. Chambers , 569 F. App'x 617 (10th Cir. 2014), at best stands for the proposition that "probable cause to pursue one charge precludes the plaintiff from proceeding with a malicious prosecution claim with respect to any other charge brought simultaneously against her and arising from the same set of facts." Id . at 620 (internal quotation marks omitted; alterations incorporated). Defendants did not bring the Quarry Hill sexual assault charges simultaneously with the Branham Drive trespass charges—which were filed by Wolff and Hartley, and on which Sanchez's father had posted bond for Sanchez before Mykes and Duffy filed the sexual assault charges. The Quarry Hill sexual assault also did not arise from the same set of facts as the Branham Drive trespass. Accordingly, Wolff's and Hartley's alleged probable cause concerning the trespass would not substitute for lack of probable cause as to the sexual assault, and so testimony in this regard is not relevant to rebutting Sanchez's expected lack-of-probable-cause argument.
As for Mykes and Duffy, probable cause is relevant, strictly speaking, because lack of probable cause is an element of Sanchez's claim. Wilkins , 528 F.3d at 799. Major Ijames's opinion on this matter therefore "embraces an ultimate issue." Fed. R. Evid. 704(a). Major Ijames's opinion is not objectionable solely on that ground, id. , but "testimony on ultimate questions of law is not favored," Specht , 853 F.2d at 808. In these circumstances, the Court finds that Major Ijames's opinion regarding probable cause to charge for the Quarry Hill sexual assault unduly invades the jury's role and the Court's authority to instruct the jury on the applicable law. See id . at 807–08. Moreover, it would not "help the trier of fact," Fed. R. Evid. 702(a), because Major Ijames does not wrestle with the existence of probable cause under Sanchez's theory of the case, i.e. , whether probable cause existed assuming that Defendants knew of or recklessly disregarded Sanchez's disabilities and the consequent likelihood of a false confession.
Accordingly, Major Ijames's first opinion is excluded.
2. Opinion Two: State of Mind
Major Ijames's second opinion is that nothing in the materials he reviewed indicates that former Defendants Wolff and Hartley knew Sanchez suffered from a medical or mental impairment that affected his ability to answer questions accurately or his susceptibility to confess falsely. (Ijames Opn. at 4–5.) As before, Sanchez gathers from deposition testimony—and Defendants do not deny—that "Major Ijames intends to opine that Defendants Duffy and Mykes lacked the same type of knowledge as Wolff and Hartley." (ECF No. 269 at 5.)
As to Wolff and Hartley, again, they are no longer Defendants and so Major Ijames's opinion about their state of mind is now irrelevant. It is excluded on that basis.
As to Mykes and Duffy, they argue that Major Ijames's opinion is really "an opinion on what a reasonable, prudent, and properly trained investigator would perceive in similar circumstances." (ECF No. 285 at 8.) That is a wishful re-characterization. Substituting "Mykes and Duffy" for "Wolff and Hartley," Major Ijames's second opinion would read as follows:
The material reviewed did not indicate that Detectives Mykes and Duffy knew Mr. Sanchez suffered from some type of mental impairment, was not capable of providing accurate information in response to their questions, was susceptible to pressure to agree with statements they made to him, and that his statements were not knowing or voluntary.
(Ijames Opn. at 4.) It is not clear what "material reviewed" would "indicate" that Mykes and Duffy have dishonestly held back their true mental impressions, as Sanchez alleges. Accordingly, the Court agrees with Sanchez that Major Ijames's opinion in this regard is really an opinion about Defendants' state of mind. The Court agrees with Sanchez that expert opinions about a party's state of mind are generally improper. See, e.g. , Ebonie S. ex rel. Mary S. v. Pueblo Sch. Dist. 60 , 2011 WL 1755208, at *13 (D. Colo. May 5, 2011). Nothing about this case suggests a deviation from the general rule. Major Ijames's second opinion will therefore be excluded.
In the same section of Defendants' response brief in which they address Sanchez's attack on Major Ijames's second opinion, they also defend Major Ijames's fourth opinion. (See ECF No. 285 at 7–9 & n.2.) Sanchez has not moved to exclude Major Ijames's fourth opinion, so this argument is irrelevant.
3. Opinion Three: Miranda Warnings
Major Ijames's third opinion is that former Defendants Wolff and Hartley "provided the Miranda warning to Mr. Sanchez at the jail, in a manner that was consistent with contemporary police investigative practice." (Id . at 5.) Mykes and Duffy have not explained its relevance to Sanchez's claim against them. They do not argue, for instance, that something about the Miranda waiver solicited by Wolff and Hartley affected their state of mind, their approach to the interrogation, and so forth. The Court therefore excludes Major Ijames's third opinion as irrelevant.
4. Opinion Six: Dickson's State of Mind
Major Ijames's sixth opinion is essentially the same as his second opinion, except applied to former Defendant Dickson. (Id . at 7–8.) Because Dickson is no longer a defendant, Major Ijames's opinions regarding his state of mind are not relevant and his sixth opinion is excluded on that basis.
5. Opinion Seven: Role of the District Attorney's Office
Major Ijames's seventh opinion is that "[t]he decision to file charges in this case was made by the prosecutor's office, and cannot be accurately characterized as false charges or a malicious prosecution as it relates to the investigators involved." (Id .) Sanchez seeks to exclude this opinion on various grounds. (ECF No. 269 at 9.) The Court agrees with Sanchez that this opinion should be excluded at least on the basis that it is not grounded in the allegations of this case. As noted repeatedly, Sanchez hopes to persuade a jury that Mykes and Duffy subjectively harbored, at a minimum, serious doubt about Sanchez's confession. If a jury is not persuaded, Sanchez's claim fails on the malice element and Major Ijames's seventh opinion is irrelevant. If a jury is persuaded, Major Ijames's seventh opinion would not be helpful to a trier of fact because it does not address what contemporary police practice dictates when an investigating officer presents a case to the prosecuting attorney while subjectively doubting the veracity of a confession. Major Ijames's seventh opinion is therefore excluded.
B. Dr. Frumkin
Dr. Bruce Frumkin is Defendants' retained psychological expert who
assess[ed] Mr. Sanchez'[s] functioning [in February 2017] as it pertained to whether he was competent to have waived his Miranda rights at the time of the police interrogation, whether he had any psychological vulnerabilities that made him more susceptible to falsely confessing compared to others, and whether any such disabilities or vulnerabilities should have been obvious to law enforcement in that continued questioning would have yielded high probability of a false confession.
(Frumkin Opn. [ECF No. 269-5] at 1.) Dr. Frumkin also opined regarding the opinions of Drs. Ashley Wheeler and Rose Manguso, two of Sanchez's psychiatric experts who diagnosed him with various cognitive deficits (discussed below in Part V). Dr. Frumkin partly agrees and partly disagrees with those diagnoses. (Frumkin Opn. at 6–7.) To some degree, Defendants appear to view Dr. Frumkin as a rebuttal expert, particularly in regards to Dr. Wheeler. Defendants perceive Dr. Wheeler's expert opinion (again, discussed below) as implying that Defendants must have recognized Sanchez's disabilities and susceptibility to false confession. In truth, Dr. Wheeler's opinion does not address what Defendants (or anyone else) should have perceived about Sanchez during the interrogations, but instead addresses whether Sanchez suffers from cognitive deficits that are consistent with a susceptibility to false confession. Nonetheless, Defendants offer Dr. Frumkin for his opinion that
there is nothing about Mr. Sanchez['s] presentation that would cause a reasonable officer to assume the Miranda waiver was invalid. Also, there is nothing observed from the interrogation that [suggests] it should have been discontinued because Mr. Sanchez[ ] presented with psychological or cognitive deficits so great as to render the confession invalid.
(Frumkin Opn. at 8.)
Dr. Frumkin also provides statistics about interrogation techniques and the prevalence of cognitive disabilities in the prison inmate and criminal defendant populations, and he opines that "law enforcement often interrogate a suspect who has a disability and/or has some intellectual or cognitive impairment" but that "does not mean they did not commit a crime, confessed, and later retracted such confession." (Id .) He concludes with an opinion that it was "unreasonable for [Defendants] to have known" of Sanchez's arguable inability to intelligently waive his Miranda rights. (Id .)
Sanchez argues that this is inadmissible state-of-mind evidence. (ECF No. 269 at 11–13.) Defendants counter that their state of mind is at issue and must be proved or disproved by circumstantial evidence, and Dr. Frumkin's expert report provides such circumstantial evidence in their favor. (ECF No. 285 at 12–14.) The Court partly agrees with both arguments.
The Court agrees with Sanchez that Dr. Frumkin's opinions about what Defendants reasonably should have perceived are essentially opinions about state of mind, and are inadmissible. The basic flaw in Dr. Frumkin's opinions is that he does not explain why Sanchez's disabilities should not have been evident to Defendants. He does not describe, for example, what sorts of training Defendants received about cognitive disabilities (if any) and how that training, or how the general experience of a police officer, failed to prepare these Defendants to recognize Sanchez's disabilities. Dr. Frumkin also does not connect his expert personal observations, the tests he administered, or their results to anything that Defendants could reasonably have expected to perceive (or not) in light of their training and experience.
The Court therefore prohibits Dr. Frumkin from testifying about his personal observations of Sanchez and the tests he administered or the results of those tests, and also from expressing an opinion consistent with the passage on page 7 of his report beginning with "Based on my review" and ending with "render the confession invalid." The Court similarly prohibits Dr. Frumkin from expressing an opinion consistent with the paragraphs on page 8 beginning with "Mr. Sanchez is fairly articulate" and ending with "unreasonable for the police to have known this."
In addition, Dr. Frumkin will not be permitted to opine about Dr. Wheeler's and Dr. Manguso's diagnoses. For reasons explained below, the Court will not permit Dr. Wheeler or Dr. Manguso to testify in support of their opinions because, as the evidence currently stands, there was no question at the time charges were dropped that their opinions were accurate. Defendants therefore may not put on Dr. Frumkin's after-the-fact testimony that some of their opinions might be questionable.
Nor will the Court permit Sanchez to elicit the portions of his opinions agreeing with Dr. Wheeler and Dr. Manguso, because that is purely after-the-fact evidence suggestive of innocence.
However, Dr. Frumkin's statistics about interrogation techniques and the prevalence of cognitive disabilities amongst those with whom police officers regularly interact are probative of whether Defendants faced a markedly unusual situation when they interrogated Sanchez, which in turn is circumstantial evidence of their state of mind. Sanchez's motion is denied as to those matters.
V. DEFENDANTS' RULE 702 MOTION RE: SANCHEZ'S PSYCHIATRISTS (ECF No. 270)
This motion addresses the expected testimony of two psychiatrists, Dr. Wheeler and Dr. Richard Martinez, and one neuropsychologist, Dr. Manguso. Dr. Manguso performed a battery of tests and concluded in January 2012 (while the charges were still pending) that Sanchez suffers from "receptive and expressive language deficits." (ECF No. 272-2 at 15.) Dr. Wheeler interviewed Sanchez on three occasions and reviewed, among many other things, Dr. Manguso's test results and opinions, and then issued a report in March 2012 (while the charges were still pending) concurring in Dr. Manguso's diagnosis, offering additional diagnoses, and opining that those diagnoses combined with "situational and dispositional risk factors" provided "a reasonable basis for understanding [Sanchez's] subsequent and current claim that [his] inculpatory statements at the suggestion of law enforcement were false." (ECF No. 272-1 at 108.) As for Dr. Martinez, he was present at one of Dr. Wheeler's three interviews with Sanchez (see id . at 23) and reviewed Dr. Wheeler's work product (ECF No. 281 at 5; ECF No. 281-11 at 3). He authored no report. Plaintiffs have designated all three—Wheeler, Manguso, and Martinez—to testify on his behalf in an expert capacity.
The Court sua sponte rules that Dr. Martinez will not be permitted to testify because his only role would be to bolster another expert's credibility. Save for proper expert rebuttal, the Court generally rules that expert testimony about expert testimony is likely to confuse the issues, mislead the jury, and cause undue delay and waste of time. Fed. R. Evid. 403. The Court sees nothing in this case that would persuade it to deviate from the general rule. Accordingly, Dr. Martinez's testimony is excluded, and the following analysis applies only to Drs. Wheeler and Manguso.
From a practical perspective, at least the portions of Dr. Wheeler's report that prompted Assistant District Attorney Brian Sugioka or Chief Deputy DA Topolnicki to move to dismiss the charges against Sanchez will be admitted into evidence. (See Part IX.A, below.) The words of Dr. Wheeler's report, whether or not accurate or believable, had an important effect on Sugioka and/or Topolnicki. Faulkner v. Super Valu Stores, Inc. , 3 F.3d 1419, 1434 (10th Cir. 1993) ("Statements offered for the effect on the listener ... are generally not hearsay."). In addition, the story presented to the jury would be nonsensical if the jury learned that the prosecution moved to dismiss the charges but the jury never learned of the event that prompted the motion. See United States v. Kimball , 73 F.3d 269, 272 (10th Cir. 1995) (res gestae doctrine permits admitting evidence needed to "complete the story" (internal quotation marks omitted)).
Based on the parties' undisputed facts in their summary judgment briefs, the Court previously understood that Sugioka moved to dismiss the charges. See Sanchez III , 299 F. Supp. 3d at 1189. More recent briefing makes clear that Topolnicki filed the motion to dismiss. (See ECF No. 330 at 2–3.)
So at least Dr. Wheeler's, and perhaps Dr. Manguso's, most salient points will come into evidence through whomever testifies about the motion to dismiss the charges. The question remains, however, whether those salient points come into evidence only in that form—i.e. , as statements admitted for their effect on the witness and/or as circumstances surrounding the termination of the prosecution—or whether Dr. Wheeler and Dr. Manguso may offer their opinions from the witness stand with the intent of persuading the jury that their opinions are correct and should be believed, apart from the effect those opinions had on any other witness.
Sanchez may not put on the testimony of Dr. Wheeler or Dr. Manguso in support of the favorable termination element because, on the current record, reasons to disbelieve their opinions were not among the circumstances surrounding the dismissal of charges. To the contrary, Chief Deputy DA Topolnicki's motion to dismiss stated that "the People believe that [Sanchez's confession] will be suppressed after hearing is had on [his] Motion to Suppress, based on [his] intellectual disabilities, cognitive functioning impairments, and speech and language disabilities." (ECF No. 330-1 ¶ 5.) This explanation takes Dr. Wheeler's and Dr. Manguso's diagnoses as established, and there is no hint that Topolnicki possessed, or even intended to develop, reasons to dispute their opinions. So, unless a witness such as Topolnicki or Sugioka testifies that he possessed reasons to disbelieve or dispute those opinions, there is no relevance to testimony from Dr. Manguso or Dr. Wheeler in support of those opinions. Even if there were such relevance, however minimal, it would be outweighed by concerns of wasting time, needlessly cumulative evidence, and the need to focus on the issues genuinely in question. See Fed. R. Evid. 403, 611(a).
Sanchez argues, however, that he may present Drs. Wheeler and Manguso for the truth of their opinions because such testimony goes to the causation element. (ECF No. 281 at 7.) This argument relates back to the Court's summary judgment ruling, where the Court held that Sugioka's behavior upon receiving Dr. Wheeler's report was some evidence of how he would have behaved if one of the investigating officers had come to him and expressed a belief that Sanchez confessed falsely—and therefore the fact that the officers did not control the prosecution did not excuse them on the causation element. Sanchez III , 299 F. Supp. 3d at 1194. The Court therefore agrees that Dr. Wheeler's written report (and, for the same reasons, Dr. Manguso's) is evidence of causation, which is why at least the salient points of the report(s) must come in through testimony regarding the decision to dismiss the charges against Sanchez. But the fact that those matters may come into evidence on the causation question does not mean that Drs. Wheeler or Manguso may testify in support of their diagnoses.
The cited portion of the Summary Judgment Order addresses causation arguments made by former Defendants Wolff, Hartley, and Dickson. It applies equally well to Mykes and Duffy, who did not assert a causation argument in their summary judgment papers.
Sanchez further argues that evidence of his factual innocence goes to the malice element because, he says, "evidence of actual innocence not known to Defendants can prove circumstantially that the statements or omissions of the Defendants were knowingly false." (ECF No. 281 at 8.) This is a rather remarkable claim—that a jury can find malice based on exculpatory information not available to the law enforcement officers at the time they made the relevant decisions. Sanchez cites a number of extra-circuit cases supposedly endorsing this proposition. (ECF No. 281 at 8 & n.8.) The Court's review of those cases reveals that they are highly fact-specific, and Sanchez's interpretation of them is not obvious.
Moreover, it is not clear to what evidence this argument applies. The psychiatrists' reports were known to Defendants, not unknown. If Sanchez means to say that the specific diagnoses contained in those reports were unknown to Defendants at the relevant time, Sanchez is essentially contradicting himself. His position has always been that Defendants knew or must have known that he suffered from cognitive disabilities of some sort. The fact that the psychiatrists gave a name to those disabilities cannot be the sort of unknown fact that supposedly demonstrates malice circumstantially.
Most importantly, if the Court were to accept this argument from Sanchez, it would create a serious issue of qualified immunity. It is clearly established that a law enforcement officer may be held liable for false statements in, and material omissions from, a warrant affidavit. See generally Sanchez II . But by definition, false statements and material omissions relate to matters known to the law enforcement officers—i.e. , that the true state of facts is something different than what they represent in a warrant affidavit, or at least that they are disregarding a high likelihood that the true state of facts is different. It is not clearly established that a jury may also find them liable based on evidence about the true state of facts that they did not know. Stated slightly differently, whether matters actually unknown to law enforcement officers may be admitted to establish their state of mind (as opposed to matters they deny knowing, but reasons exist to disbelieve their denials) is not a mere question of what evidence has a tendency to establish state of mind. If unknown matters may indeed be admitted for this purpose, the malicious prosecution cause of action would be substantially changed, and Defendants would be entitled to qualified immunity for lack of clearly established law at the time they acted.
For all these reasons, the Court rejects Sanchez's claims that evidence of innocence unknown to Defendants may be admitted as circumstantial evidence of malice.
Sanchez additionally argues that Dr. Wheeler and Dr. Manguso may testify in support of their opinions because it goes to his potential damages. (ECF No. 281 at 8.) On this point, he relies on a Seventh Circuit case which reasoned that evidence of a malicious prosecution plaintiff's actual innocence is relevant to the plaintiff's damages because presumably a jury will award more damages when it believes the plaintiff was innocent. See Parish v. City of Elkhart , 702 F.3d 997, 999 (7th Cir. 2012). Sanchez also relies on a Sixth Circuit opinion that perfunctorily cites the Seventh Circuit's Parish opinion for this proposition. See Ayers v. City of Cleveland , 773 F.3d 161, 169 (6th Cir. 2014).
Parish is, candidly, a rather breezy opinion, and is nearly citation-free on the relevant point. But the Court acknowledges that if a jury believes a malicious prosecution plaintiff was factually innocent, the jury might award more emotional distress damages—because a criminal defendant who knows he or she is innocent likely feels significantly more distress than one who knows he or she is guilty but nonetheless sees a chance to have the charges dismissed due to police misconduct.
That said, malicious prosecution claims are already complicated enough, and Sanchez's claim is particularly tangled, as this and prior orders have demonstrated. The Court, in its discretion, will not allow Sanchez to expand his trial presentation to include a trial-within-a-trial on his factual innocence, solely in support of greater damages.
Parish indirectly supports this outcome. There, the Seventh Circuit agreed with the plaintiff's speculation that the jury's relatively low award of damages could only be explained by an implicit finding that the plaintiff was probably guilty of the underlying offense. 702 F.3d at 999. And that implicit finding, the court continued, probably arose from "the evidence allowed and that withheld from the jury on the question of responsibility for the crime," which "reveal[ed] that the deck was effectively stacked against Parish. Significant testimony as to Parish's guilt of the crime, and particularly the testimony of eyewitnesses identifying him, was admitted whereas testimony as to his innocence, including statements by those same eyewitnesses expressing their doubts as to that identification, was excluded." Id .
Here, the deck will not be stacked against Sanchez. The Court's various rulings in this order and elsewhere will permit the jury to hear, for example, that Sanchez did not match the sexual assault victim's description of the perpetrator, that Sanchez felt pressured to confess, that Sanchez's DNA was not found at the Quarry Hill home, and so forth. The jury will therefore hear a significant amount of evidence tending to suggest Sanchez's factual innocence. The Court finds this is sufficient to satisfy Sanchez's interest in arguing for greater damages.
In this light, Dr. Wheeler's and Dr. Manguso's opinions could only be relevant solely to support factual innocence as it relates to damages, and the Court has already ruled that it will not permit evidence with no other purpose than this. Defendants' motion to exclude the testimony of Drs. Martinez, Wheeler, and Manguso is granted.
VI. DEFENDANTS' RULE 702 MOTION RE: POLYGRAPH EXPERT CHARLES HONTS (ECF No. 273)
Defendants seek to exclude the testimony of a psychologist and polygraph expert, Dr. Charles Honts. (ECF No. 273.) This motion is necessarily linked to former Defendant Dickson, the polygraph examiner, and whether he will testify in support of his test and the results. Defendants do not wish to call Dickson—they apparently plan to introduce evidence regarding his polygraph test and results through Mykes and Duffy, and not for the truth of those results, but for their state of mind when they learned of those results. But Defendants have kept Dickson on their "may call" list because Dr. Honts remains on Sanchez's "may call" list. (ECF No. 291 at 4.) Dr. Honts would testify that Dixon's exam and scoring method were flawed. See also Sanchez III , 299 F. Supp. 3d at 1181–82 (describing Dr. Honts's critique). But Sanchez says he will not call Dr. Honts if Defendants will agree not to introduce evidence of Dixon's polygraph test and results. (ECF No. 282 at 2, 6–7.)
Sanchez has also moved in limine to exclude the polygraph test and results. (See Part IX.B, below.) Notably, Sanchez does not ask the Court to exclude Dickson's entire interaction with Sanchez, presumably because the interactions before and after the polygraph test are helpful to show that Sanchez had been fed the details that made it into his confession, and that Mykes and Duffy understood this because they observed the entire interview between Dickson and Sanchez. But, Sanchez believes that the centerpiece of that interview—the polygraph test and results—must be kept from the jury.
The parties are thus at a stalemate. To begin breaking that stalemate, the Court will deny Sanchez's motion in limine . To exclude the polygraph exam and results would, at a minimum, create an unacceptable gap in the temporal sequence of the evidence. Kimball , 73 F.3d at 272. Sanchez's behavior after Dickson announced the test results (such as stating that he did not remember breaking into the Quarry Hill address but perhaps could have done it in his sleep, see Sanchez III , 299 F. Supp. 3d at 1182 ) would be incomprehensible without understanding the test and its outcome. Moreover, as explained further in Part IX.B, below, the outcome of the polygraph test as reported to Mykes and Duffy is relevant to their state of mind. For at least these two reasons, then, the jury will learn that Dickson administered a polygraph test and concluded that Sanchez had failed the portion of the test addressing the Quarry Hill sexual assault.
Sanchez believes that if the jury learns that much, then the jury must also hear from Dr. Honts that there are reasons to disbelieve Dickson's results. But, as already discussed and emphasized in Part II, above, evidence of factual innocence not known at the time charges were dropped is not relevant to favorable termination, and the Court will not permit a mini-trial on Sanchez's factual innocence for other purposes, such as damages (see Part V, above). Moreover, because there is no evidence that the reliability of Dickson's polygraph results was in question between the time he announced those results and at the time charges were dropped, neither Dr. Honts's testimony challenging those results, nor Dickson's testimony in defense of those results, is relevant.
Defendants' motion is granted. Dr. Honts's testimony is excluded. Dickson's testimony is also excluded for the reasons stated, and because Defendants have represented that they will not call Dickson if Sanchez does not call Dr. Honts. A limiting instruction as to the polygraph evidence is proposed below in Part IX.B.
VII. DEFENDANTS' RULE 702 MOTION RE: PSYCHOLOGIST RICHARD SPIEGLE (ECF No. 274)
Sanchez disclosed a forensic psychologist, Dr. Richard Spiegle, as a Rule 26(a)(2)(C) expert, i.e. , a non-retained expert whose prior observations were informed by expertise and may be helpful to the jury. Normally this rule is used for treating medical providers to testify about their observations and diagnoses when treating a patient (usually the plaintiff). Here, however, Sanchez's criminal defense attorney asked Dr. Spiegle to meet with Sanchez while Sanchez was still in the Douglas County Jail in late 2009. (See Spiegle Opn. [ECF No. 274-2] at 1.) Dr. Spiegle says that Sanchez's defense attorney "was very concerned about [Sanchez's] ability to cope with his incarceration." (Id .) Dr. Spiegle accordingly met with Sanchez twice in November 2009, but was soon told by the defense attorney that Sanchez's family "could not afford for me to continue meeting with him at the jail," and that was the end of his interactions with Sanchez. (Id . at 1, 3.) It is thus unclear whether Dr. Spiegle ever became, or was even intended as, a treating psychologist, as opposed to an agent of the defense attorney. But Rule 26(a)(2)(C) is not limited to treating medical providers and Defendants do not argue that Dr. Spiegle was improperly designated as a Rule 26(a)(2)(C) expert. The Court therefore turns to the substance of Defendants' attack on Dr. Spiegle.
Dr. Spiegle met with Sanchez, observed his behavior and affect, and heard Sanchez describe his circumstances in jail as well as a narrative of the interrogations with Defendants and others that led to the sexual assault charges. Dr. Spiegle generally observed poor mental health in both visits, including paranoia, anxiety, and panic attacks. (Id . at 1–3.)
Defendants recognize that Sanchez hopes to introduce Dr. Spiegle's testimony "to bolster a damages claim." (ECF No. 274 at 1.) Defendants assert, however, that Dr. Spiegle did not forensically evaluate Sanchez; did not complete any "process of diagnosing and determining a course of treatment"; was not aware that Sanchez had designated him as an expert in this case; he disavowed providing expert testimony during his deposition in this case; he had no independent memory of those meetings and reconstructed that memory through his contemporaneous notes; his written account of his meetings with Sanchez "recounts [his] potential diagnoses more as questions or concerns for further consideration than formal diagnoses"; and that his opinions or observations were supposedly inconsistent with those of other mental health professionals. (Id . at 2, 5–6.)
None of these arguments is persuasive. Dr. Spiegle applied his expert psychological training as he observed and listened to Sanchez, and he then came to certain conclusions about Sanchez's psychological state at that time. Those observations are relevant to emotional distress damages, at a minimum. Whether Dr. Spiegle's conclusions were as tentative as Defendants represent is arguable, and, in any event, that is a matter for cross-examination. Cross-examination is also the appropriate path to explore the other alleged deficiencies in his expected testimony.
However, the Court agrees with Defendants' sub-argument that Dr. Spiegle should not be permitted to convey to the jury Sanchez's account of his interrogations. (See ECF No. 274 at 8.) Sanchez does not respond to this argument, and the Court otherwise finds that Sanchez's own prior statements are hearsay unless and until a question of inconsistency arises through Sanchez's in-court testimony on the same subject. See Fed. R. Evid. 801(d)(1)(A)–(B). Although experts may rely on hearsay "[i]f experts in the particular field would reasonably rely on [it] in forming an opinion on the subject," see Fed. R. Evid. 703, the Court has reviewed Dr. Spiegle's written account and finds no connection between his diagnoses and Sanchez's alleged statements about his prior interrogations or how he ended up being arrested. To the extent Dr. Spiegle meant a connection that he did not articulate, the Court finds that presenting Sanchez's words on this subject through an expert would be unduly prejudicial to Defendants. See Fed. R. Evid. 403.
Accordingly, Dr. Spiegle will not be permitted to testify about the matters on page 2 of his written narrative commencing with the sentence that begins "They gave him a paper with his rights ..." and concluding with "he said, ‘I can't take being here.’ " Dr. Spiegle will also not be permitted to testify about the matters on page 3 of his written narrative commencing with "adding, ‘Can't believe ...’ " and ending with " ‘to say this stuff.’ " Defendants' motion is granted to that extent, but otherwise denied.
VIII. DEFENDANTS' RULE 702 MOTION RE: CRIMINAL DEFENSE ATTORNEY IRIS EYTAN (ECF No. 273)
Defendants seek to exclude any expert testimony Sanchez intends to offer from his criminal defense attorney, Ms. Iris Eytan. Ms. Eytan's proposed expert opinions address two broad topics that the Court will discuss in turn: (1) the competency standard under Colorado criminal law, and (2) preliminary hearings for criminal proceedings in Colorado state court.
Defendants do not seek to exclude Ms. Eytan to the extent she offers relevant non-expert testimony. (ECF No. 275 at 2 n.2.)
A. Competency
In February 2011, a Court-appointed psychological examiner, Dr. Mac Bradley, found Sanchez competent to proceed in his criminal case under Colorado's statutory competency standard. (ECF No. 313-1.) That standard requires that the criminal defendant "not have a mental disability or developmental disability that prevents the defendant from having sufficient present ability to consult with the defendant's lawyer with a reasonable degree of rational understanding in order to assist in the defense or prevents the defendant from having a rational and factual understanding of the criminal proceedings." Colo. Rev. Stat. § 16-8.5-101(4).
As discussed in Part IX.F, below, Sanchez has moved in limine to exclude evidence regarding Dr. Bradley's competency examination and results. The Court will deny that motion for reasons explained in that Part. That denial sets the stage for Ms. Eytan's opinions about competency.
Ms. Eytan is prepared to describe the statutory competency standards to the jury in order to give an opinion: about the frequency with which criminal defendants are found competent; that being found competent is not the same as being found capable of voluntarily waving Miranda rights and/or confessing; and that Colorado's statutory competency framework does not embrace speech and language disabilities. (Eytan Opn. at 1–7.) In essence, Ms. Eytan will seek to rebut whatever relevance Defendants attempt to draw from Dr. Bradley's competency examination.
Defendant challenges all of Ms. Eytan's expert opinions, but the Court only partly agrees. Ms. Eytan may properly inform the jury what the Colorado competency statutes say. The jury will not be asked to apply those competency standards and so Ms. Eytan's testimony in this regard does not usurp the Court's duty to instruct the jury. See Specht , 853 F.2d at 808–09. Ms. Eytan may also properly inform the jury that the Colorado competency standard does not embrace the speech and language deficits with which Sanchez has been diagnosed. Such testimony would be helpful in the jury's weighing of Dr. Bradley's findings.
Ms. Eytan may also properly testify that the standard for competency and the standard for voluntariness in Miranda waivers and confessions are different. Interestingly, Ms. Eytan nowhere explains what the voluntariness standard entails, and the Court would not likely permit her to do so in any event because it would tread too closely to the issues on which the Court must instruct the jury. So Ms. Eytan may testify precisely as she has framed her opinion: that the competency standard is such-and-such and that the voluntariness standard is not the same.
Ms. Eytan may not, however, offer her opinions that
usually where competency is raised, the courts and evaluators opine that an individual is competent. Unfortunately, individuals that language disabilities are often the ones who were incorrectly ruled competent when there are glaring comprehension and intellectual functioning
issues—in other words, when the individual does not have a "low enough" IQ (or below 70).
(Eytan Opn. at 2.) The Court agrees with Defendants that these assertions appear entirely anecdotal in an area where empirical data should exist, and that the concept of being "incorrectly ruled competent" is undefined. (ECF No. 275 at 8–9.) Thus, these opinions are not based on sufficient facts or data, nor are they the product of reliable methods. Fed. R. Evid. 703(b)–(c).
The second opinion is also inconsistent with her opinion that language disabilities are not considered in the competency framework.
These opinions may be admissible, if couched purely as her personal perceptions , to explain why she argued to the state criminal trial court that Sanchez was competent—assuming Defendants point out as much, which they apparently plan to do in support of their argument that Sanchez is not as obviously disabled as he claims. For this reason, the Court rejects Defendants' argument that explanations she may have of her strategic decisions should be excluded. (ECF No. 275 at 10.) These explanations are likely factual, not expert, and regardless, if Defendants seek to use Ms. Eytan's decisions during the criminal proceedings to undermine Sanchez's current case, Sanchez must be permitted to allow Ms. Eytan to explain herself.
The Court further agrees with Defendants that Ms. Eytan's opinions about how the competency statutes should be changed, and how subsequent case law and other developments may affect competency evaluations, must be excluded as irrelevant. Thus, Ms. Eytan may not testify on the topics discussed at page 3 of her report beginning with "I have advocated" and ending on page 4 with "would likely be determined to be competent."
Finally, Ms. Eytan may not offer her opinion that Dr. Wheeler's report "opined that Mr. Sanchez falsely confessed and was coerced to make statements due to his disabilities." (Eytan Opn. at 7.) That is simply inaccurate.
This ruling does not prevent Defendants from using this inaccuracy for impeachment purposes, so long as Defendants are prepared to deal with whatever doors they may open through such impeachment.
B. Preliminary Hearing
As with Ms. Eytan's competency opinions, her opinions about the preliminary hearing in the trial court are connected to one of Sanchez's motions in limine —in this instance, to exclude the trial court's probable cause ruling. (ECF No. 286 at 16.) The Court will deny that motion for the reasons explained in Part IX.D, below, again setting the stage for Ms. Eytan's opinions.
Ms. Eytan intends to inform the jury about the purpose of a probable cause hearing, the standard the trial judge must apply, and the limitations when defense lawyers wish to call witnesses. (Eytan Opn. at 7–8.) She also intends to offer illustrative hypotheticals that supposedly show how easy it is for the prosecution to establish probable cause at a preliminary hearing. (Id . at 8.) And she wishes to inform the jury that, "in many of the serious cases in which I went to trial after a determination of probable cause by a judge at [a] preliminary hearing, I have obtained a dismissal of the case, or one of the case in the jury trial." (Id . at 9.)
The Court agrees with Defendants that all of this should be excluded. Ms. Eytan is not prohibited from testifying in a fact-witness capacity about how the preliminary hearing played out. (See id . at 5.) But her expert opinions about the preliminary hearing overlap to a prejudicial degree with the Court's duty to instruct the jury about the probable cause element of Sanchez's claim. The Court therefore grants this portion of Defendants' motion.
As explained below in Part IX.D, the Court will specifically instruct the jury about the nature of the preliminary hearing and that the trial judge's conclusion in that context should have no influence on their deliberations in this case.
IX. SANCHEZ'S MOTION IN LIMINE (ECF NO. 286)
Sanchez's motion in limine raises multiple distinct challenges, which the Court will address in turn.
A. ADA Sugioka's Testimony
At summary judgment, Defendants introduced an affidavit from the prosecutor in Sanchez's criminal proceeding, ADA Sugioka. See Sanchez III , 299 F. Supp. 3d at 1185–86. Sugioka recounted, among other things, statements Mykes made to him that tended to show Mykes's awareness of the potential weaknesses in the case against Sanchez and her desire to make Sugioka aware of those weaknesses. See id . Defendants intend to present this evidence at trial to rebut malice and causation. (See ECF No. 291 at 3–4.)
Sanchez was surprised by this affidavit. Defendants had disclosed Sugioka per Rule 26(a)(1)(A)(i) (see ECF No. 243 at 2 n.1), but Sanchez apparently decided during fact discovery that Sugioka was not worth deposing. After reading his summary judgment affidavit, Sanchez requested—and Defendants did not oppose—a reopening of fact discovery solely for the purpose of deposing Sugioka. (ECF No. 246.) The Court granted that motion. (ECF No. 248.)
At Sugioka's deposition, counsel for the District Attorney's Office for the Eighteenth Judicial District (which encompasses Douglas County) instructed Sugioka not to answer questions such as the following:
• "Why didn't you dismiss the charges against Mr. Sanchez earlier?"
• "At any point in time did you conclude that Mr. Sanchez had falsely confessed?"
• "What did you think were the weaknesses of your case against Mr. Sanchez?"
• "Why didn't you dismiss the charges against Mr. Sanchez when you learned [from Mykes that Sanchez] didn't match the physical description provided by the victim of the sex assault?"
(ECF No. 286-3 at 16–17, 23.) Counsel based these objections and instructions not to answer on "the attorney-client privilege, the work product doctrine, the law enforcement investigation privilege, and the deliberative process privilege." (Id . at 7–8.)
Sanchez now argues that these assertions of privilege preclude Defendants from calling ADA Sugioka as a witness. Sanchez asserts that Sugioka's summary judgment affidavit put his mental impressions at issue and that even the Court "understood Sugioka's [affidavit] as placing his mental impressions regarding his charging decision squarely at issue." (ECF No. 286 at 2–4.) But, says Sanchez, Defendants' failure to permit deposition inquiry into Sugioka's mental impressions means that Sugioka must be entirely precluded from testifying. The Court rejects this argument for several reasons.
First, Sugioka's summary judgment affidavit does not place his mental impressions at issue. The affidavit is, rather, a chronological account of information that others provided to him during the course of the prosecution. (See ECF No. 286-1.) It is obviously carefully worded to provide only that sort of information. And the Court never understood it to be placing Sugioka's mental impressions at issue—nearly the opposite, in fact. When discussing the causation element, the Court noted "a lurking question about what Sugioka would have done had [former Defendants] Wolff and Hartley disclosed a subjective belief in the falsity of Sanchez's confession." Sanchez III , 299 F. Supp. 3d at 1194. This was so, the Court continued, because, "according to Sugioka, Mykes approached him with concerns at least similar to what Sanchez believes Wolff and Hartley should have expressed, yet Sugioka continue to pursue the prosecution." Id . Because Sugioka was the proverbial "black box," the Court went on to declare that Sugioka's actions after receiving Dr. Wheeler's report are some evidence that he would have moved to dismiss the charges if he had received similar information from Wolff and Hartley. In other words, the Court assumed that Sugioka's mental impressions would not be in evidence and agreed with Sanchez's argument that evidence apart from those mental impressions could nonetheless establish causation. (See ECF No. 198 [Sanchez's summary judgment response brief] at 12 ("A reasonable fact finder could conclude that if Defendants Wolff and Hartley had told Detectives Mykes and Duffy or [Sugioka] that they knew Mr. Sanchez had falsely confessed, Mr. Sanchez would never have been charged with sexual assault. After all, when [Sugioka] learned from Dr. Ashley Wheeler that Mr. Sanchez had falsely confessed, [he] dismissed the charges against [Sanchez].").)
And, by extension, from Mykes and Duffy, although the Court did not discuss them in this portion of the Summary Judgment Order because they did not move for summary judgment on the causation element.
Second, the District Attorney's Office's refusal to waive its privileges—which Sanchez has never challenged through a motion to compel—burdens Defendants at least as much as Sanchez. Defendants would surely love testimony from Sugioka that, e.g. , he had already concluded that Sanchez's confession had been coerced but chose not to act until he saw Dr. Wheeler's report. If a jury believed Sugioka's testimony in that regard, Sanchez's causation burden would be much more difficult because a jury could find that Sugioka would have pressed forward regardless of Defendants' alleged subjective conclusion that Sanchez's confession had been coerced. But even assuming Sugioka had such testimony to give, he apparently will not be giving it due to unwaived privileges, to the potential detriment of both Sanchez and Defendants. Both sides are thus reduced to arguing causation from circumstantial inferences.
Third, counsel for the District Attorney's Office permitted Sugioka to answer many probative questions, including:
• "What did you say to [Mykes] about the DNA results when you discussed them [i.e. , the results showing that Sanchez's DNA was not found at the Quarry Hill location]?"
• "Did [Mykes] say in light of the DNA results [that] she thought Tyler Sanchez was not guilty of the sexual assault with which he'd been accused?"
• "Did [Mykes] say she didn't think you could prove the case anymore or did she say she had come to the conclusion that [Sanchez] falsely confessed, or words to that effect?"
• "And what was it that made you think you couldn't prove your case against Mr. Sanchez?"
Sugioka asked if he was permitted to answer this question and counsel for the District Attorney's Office stated, "Yes, I think you can answer that question." (Id .)
(ECF No. 315-1 at 3, 4; ECF No. 315-2 at 12.)
Thus, Sanchez had a full opportunity to discover information Sugioka possessed relevant to malice and causation. On the arguments presented, then, Sanchez has not established a basis to exclude Sugioka's expected testimony.
B. Polygraph Results
Sanchez claims that former Defendant Dickson's polygraph test and results must be excluded because they supposedly cannot be considered under the probable cause element (because the results were not revealed to a reviewing judge), and are otherwise unduly prejudicial. (ECF No. 286 at 7–13.) But, as already explained (Part VI), the Court cannot exclude the polygraph test and results without creating an unacceptable gap in the evidence. Moreover, Sanchez appears to have carefully framed this challenge so he can both have and eat his cake. He does not ask that Dickson's entire interaction with Sanchez be excluded, presumably because the interactions before and after the polygraph test are helpful to show that Sanchez had been fed the details that made it into his confession, and that Mykes and Duffy understood this because they observed the entire interview between Dickson and Sanchez. But Sanchez believes that the centerpiece of that interview—the polygraph test and results—must be kept from the jury.
Concerning the probable cause element, the Court agrees with Sanchez that the applicable case law prohibits considering information known to a police officer but not conveyed to the reviewing judge or magistrate as a basis for probable cause:
But because the officers revealed none of the additional information during the institution of legal process—in this case, during the arrest warrant applications—the officers cannot use this information to escape liability. If institution of legal process is required to trigger a malicious prosecution claim, we ought not search for probable cause in a pile of unrevealed information. The Fourth Amendment in the context of a malicious prosecution claim deals with judicial determinations of probable cause, either at the warrant application stage or during a Gerstein hearing following a warrantless arrest. Judicial determination becomes a misnomer if information required to support probable cause remains at all times firmly lodged in the officer's head.
Wilkins , 528 F.3d at 802 (emphasis in original). But this standard presents certain problems in this case: there was no relevant warrant application and accompanying affidavit that led to a judicial determination of probable cause, and there was no relevant judicial determination after a hearing for which Defendants can be held liable. The Court will discuss the two problems in turn.
As to warrant applications and affidavits, Mykes executed a July 18, 2009 Statement in Support of Warrantless Arrest ("Statement"), which reports that "the polygraph test indicated that [Sanchez] was being untruthful regarding the sexual assault." (ECF No. 286-20 at 3.) But, according to Sanchez, this document's only purpose is to overcome a legal requirement that "a criminal defendant may only be detained for 72 hours based on a warrantless arrest." (ECF No. 340 at 2.) It is not the initiation of the prosecution. (Id .; ECF No. 345 ¶ 2.) Under Sanchez's position, and assuming a judicial determination of some sort based on the Statement, information contained in the Statement would likely be admissible as to the probable cause element in a false arrest claim, but inadmissible as to the probable cause element in a malicious prosecution claim. This is so because false arrest and malicious prosecution are distinct claims separated by "sufficient legal process" to justify the prosecution, as opposed to simply the detention. Mondragon v. Thompson , 519 F.3d 1078, 1082–83 (10th Cir. 2008).
Mykes executed a second document: the July 22, 2009 Affidavit for Arrest Warrant ("Affidavit"). It recounts the fact of the polygraph examination but does not report the results , instead going directly to Sanchez's statements to Dickson in the wake of the polygraph test and Sanchez's ensuing confession. (ECF No. 204-22 at 22–23.) This document, according to Sanchez, was what convinced Sugioka to file charges, and those charges are "the legal process that forms the basis for Mr. Sanchez's malicious prosecution claim." (ECF No. 345 ¶ 2.) If Mykes had submitted this document to a judge to establish probable cause for the sexual assault charges, Wilkins would dictate that Defendants could not rebut the lack-of-probable-cause element through evidence not described in this Affidavit. But Sanchez admits he has no evidence that Mykes submitted the Affidavit to a judge as part of a probable cause analysis (or for any other reason) (see ECF No. 345 ¶ 3), and this leads to the next problem.
The only judicial determination of probable cause in this case was the preliminary hearing many months after Sanchez's arrest. See Sanchez III , 299 F. Supp. 3d at 1186–88. Neither Mykes's Statement nor her Affidavit was part of that hearing, and in any event, Mykes and Duffy are absolutely immune from suit based on their testimony at the preliminary hearing. See id . at 1186 n.17. So, if "[t]he Fourth Amendment in the context of a malicious prosecution claim deals with judicial determinations of probable cause," Wilkins , 528 F.3d at 802 (emphasis in original), it would seem that Sanchez can state no claim for malicious prosecution against Mykes and Duffy.
On the other hand, this Court and the Tenth Circuit have repeatedly relied on Pierce v. Gilchrist, supra , to explain why Mykes and Duffy may still be liable under Sanchez's theory of the case. See Sanchez I , 65 F. Supp. 3d at 1124 ; Sanchez II , 810 F.3d at 758 ; Sanchez III , 299 F. Supp. 3d at 1192. In Pierce , the defendant was not a police officer but was nonetheless accused of "prevaricat[ing] and distort[ing] evidence to convince the prosecuting authorities to press charges," which is "no less reprehensible than an officer who, through false statements, prevails upon a magistrate to issue a warrant." 359 F.3d at 1293. Under this theory, the focus is not what the defendant presented to a judge but what the defendant presented to the prosecutor.
The question, then, is how to apply Wilkins and related cases in this circumstance. By "related cases," the Court specifically has in mind Taylor v. Meacham (see Part I, above), among others. Taylor describes a procedure when the plaintiff's allegation is that the police fabricated information in the affidavit or omitted material exculpatory information. In that circumstance, the jury must reconstruct the affidavit as if it excluded false statements and included material information that had been omitted. But the assumption is, nonetheless, that a police officer submitted an affidavit to a judge. Taylor , 82 F.3d at 1562 ("[The plaintiff] argues that the affidavit prepared by Sheriff Meacham in support of the arrest warrant contained deliberately false statements and omissions, thereby misleading the judge into issuing the arrest warrant."). The same assumption underlies Pierce —perhaps unreflectively, because there was no mention that the defendant in that case had submitted affidavits to a court (as opposed to submitting information to a prosecutor that in turn prompted the prosecutor to file charges). See 359 F.3d at 1293, 1295 (setting forth the same reconstruct-the-affidavit standard as Taylor , with specific reference generically to "the affidavit," but not specifying whether any affidavit existed on which to perform this analysis as to the defendant in that case).
Given (a) Wilkins 's holding that a jury should not assess probable cause through "a pile of unrevealed information," Wilkins , 528 F.3d at 802, but also acknowledging that, in this case, (b) there was no affidavit that convinced a judicial officer to find probable cause (and so the reconstruct-the-affidavit approach set forth Taylor , Pierce , and similar cases cannot strictly apply), the Court holds that the relevant "affidavit" for purposes of a case like this is the totality of information that the prosecutor had available to him or her when choosing to file charges.
Under this standard, the question is not whether Mykes's Statement or Affidavit disclosed the polygraph results to a reviewing magistrate or judge. The question is whether ADA Sugioka knew of the polygraph results when he decided to file charges, regardless of where he obtained that information. The record is not clear on this point. Therefore, the Court can make no pretrial ruling. The Court must await Sugioka's and perhaps other witnesses' testimony on this question.
However, the need for further testimony does not prevent the Court from ruling that the polygraph results may come in for at least one purpose, i.e. , Defendants' state of mind. Whether or not Defendants disclosed the polygraph results, they witnessed the examination and learned from Dickson that Sanchez had failed the crucial part of the examination. Such evidence could be viewed by a jury as contrary to Sanchez's claim that Mykes and Duffy went forward with a malicious state of mind. Sanchez's motion is therefore denied at least to this extent. If the Court concludes, after hearing the trial testimony, that the polygraph test and results may come in only for Defendants' state of mind, the Court will read a limiting instruction to the jury, such as:
You have heard testimony that the Plaintiff was asked questions about the Quarry Hill sexual assault in a polygraph examination, and that the polygraph examiner concluded that the Plaintiff failed that part of the polygraph exam. You may only consider this evidence as it may relate to Defendants Mykes's and Duffy's state of mind, which is part of the malice element of Plaintiff's claim. You may not consider it as you deliberate about any other element.
The Court will also consider Sanchez's Proposed Instruction No. 10 (ECF No. 305 at 12), which is to similar effect.
C. Gang Involvement, Prior Criminal History, and Drug and Alcohol Use
Sanchez presumes—and Defendants do not deny—that Defendants will elicit testimony about "an alleged and unproven association between Mr. Sanchez and a gang or gang members"; Sanchez's criminal history before the alleged trespass and sexual assault; and Sanchez's alcohol and marijuana use before the alleged trespass and sexual assault. (ECF No. 286 at 13–16, 19–20.) Sanchez primarily argues that all of these matters are irrelevant to probable cause because Defendants did not disclose them in any warrant application. Sanchez also briefly invokes Rules 403 and 404(b).
Concerning probable cause, Defendants respond that the Statement in Support of Warrantless Arrest mentions Sanchez's status as being on probation for a felony (criminal mischief, specifically) and his "escalating behavior, prior criminal history, and potential risk to public safety" (ECF No. 291 at 6 (citing to ECF No. 286-20 at 4)); and that the Affidavit for Arrest Warrant reported Sanchez's statements that he and a friend had previously burglarized houses for jewelry and pawned it (id . (citing ECF No. 204-22 at 19–20)).
As with the polygraph results, the question under the circumstances of this case—as it relates to the probable cause element—is not whether Defendants submitted a written statement to a judge with this information, but whether the information was known to ADA Sugioka when he chose to file charges. Again, the record is not clear and the Court must await trial testimony. But the Court also agrees with Defendants that whatever they learned about Sanchez's criminal history and potential substance abuse may be introduced as probative of Defendants' state of mind. State of mind must nearly always be proved or disproved by circumstantial evidence. See DeLoach v. Bevers , 922 F.2d 618, 622 (10th Cir. 1990) ("a factfinder may infer reckless disregard [for the truth] from circumstances evincing obvious reasons to doubt the veracity of the allegations" (internal quotation marks omitted)); cf . Farmer v. Brennan , 511 U.S. 825, 842–43, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (holding in the Eighth Amendment deliberate indifference context that a prison official's "requisite [subjective] knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious" (citation omitted)).
Understanding how Defendants investigated Sanchez and what they learned is crucial to judging their state of mind and therefore will not be excluded as, e.g. , unduly prejudicial. And although it may not be admissible in a trial to prove guilt of a crime, see Fed. R. Evid. 404(b), it nonetheless may affect state of mind. For example, if, during their investigation, Defendants spoke with someone who reported Sanchez's intent to affiliate with a gang, that would naturally affect Defendants' state of mind even if the information is inadmissible on other grounds.
Accordingly, Defendants may testify about what they learned when investigating Sanchez. Defendants' counsel may not ask questions—of Defendants or otherwise—with the intent to persuade the jury that Sanchez actually intended to affiliate with a gang (for example), unless Sanchez opens the door by putting the truth or reliability of that information at issue.
A limiting instruction is once again appropriate to inform the jury that it may only consider this testimony for its effect on Defendants' state of mind (i.e. , assuming this information was not known to ADA Sugioka), such as the following:
You have heard Defendants Mykes and Duffy testify that they learned in their investigation that [list relevant matters ]. You may only consider this information under the malice element, or in other words, for its effect, if any, on Defendant Mykes's or Defendant Duffy's state of mind. You have not heard evidence of whether Sanchez actually did any of these things, and it is not your job to decide whether he did any of them. You must not form any opinion about that.
D. Trial Court's Probable Cause Ruling After the Preliminary Hearing
Sanchez asks that the Court exclude "the trial court's finding of probable cause" (ECF No. 286 at 18), referring to the trial court's conclusion at the end of the preliminary hearing held in March and April 2010, see Sanchez III , 299 F. Supp. 3d at 1186–88. Sanchez does not ask the Court to exclude all evidence regarding the preliminary hearing, but only its outcome.
Most of Sanchez's argument focuses on something narrower, i.e. , preventing Defendants from re-raising an argument the Court already rejected at summary judgment. There, Defendants argued that any probable cause evaluation in this lawsuit would be a collateral attack on the state court's probable cause finding. The Court ruled otherwise. Id . at 1195. Sanchez further states that learning of the preliminary hearing outcome would require instructions that would confuse the jury, so it should be excluded under Rule 403. (ECF No. 286 at 18–19.)
As to the collateral attack argument, Defendants do not continue to assert that the trial court's probable cause finding is preclusive, or even relevant to the jury's consideration of the probable cause element. Defendants instead argue that it is relevant to damages because it supposedly shows that Sanchez's criminal defense strategy unnecessarily delayed the proceedings that would have eventually led to his dismissal. (ECF No. 291 at 8–9.) Defendants further argue that the trial court's probable cause finding is relevant to causation, because ADA Sugioka continued to prosecute the case after hearing all of the evidence at the preliminary hearing. (Id . at 9.) Finally, Defendants claim that the trial court's probable cause finding is circumstantial evidence of their state of mind: "the fact that the preliminary hearing judge was presented with the same conflicting evidence considered by the Detectives and found probable cause is compelling circumstantial evidence that the Detectives' similar assumptions were not unreasonable and were not the product of intentional deception." (Id . at 10.)
The Court will not require the jury to sit through what promises to be detailed evidence about the preliminary hearing and then refuse to permit evidence of the hearing's outcome. Indeed, Sanchez's request is futile because the jury will learn the purpose of the preliminary hearing and they will learn that criminal proceedings continued after the preliminary hearing, so they will infer for themselves the outcome even if they do not learn of it through a witness. The Court could provide a limiting instruction that the jury may not concern itself with the outcome of the preliminary hearing, but the Court could just as easily allow the jury to hear the outcome and provide a limiting instruction about its proper role in their deliberations. The Court finds that the latter course is more sensible and will be far less confusing or frustrating to the jury.
The Court cannot fully formulate a limiting instruction on this record. The Court frankly does not understand how the outcome of the preliminary hearing (as opposed to the fact that it happened and the events before and after) may relate to Sanchez's damages claim, but the Court cannot definitely conclude that there is no situation in which the outcome might be relevant to damages. Therefore, the Court does not rule at this time on whether a limiting instruction should discuss the damages element.
The Court ruled at summary judgment that Defendants are absolutely immune from their testimony at the preliminary hearing, see Sanchez III , 299 F. Supp. 3d at 1186 n.17, but Defendants do not re-raise this issue here or in any of their pretrial evidentiary motions.
Regarding causation, however, the notion that ADA Sugioka continued prosecuting after the preliminary hearing is irrelevant and continues to ignore Sanchez's theory, i.e. , that Defendants intentionally withheld material information, which information would have led Sugioka to forgo filing charges or to dismiss those charges. Accordingly, absent unexpected evidentiary developments at trial, the Court will not instruct the jury that the outcome of the preliminary hearing is relevant to causation.
The Court also rejects Defendants' theory that the trial court's finding is "compelling circumstantial evidence" of their state of mind. (ECF No. 291 at 10.) Again, if Sanchez can persuade a jury that Defendants lied or withheld material information, then the trial court's finding was based on an incomplete record and provides no evidence, circumstantial or otherwise, of whether Defendants behaved reasonably.
Assuming the Court finds that the preliminary hearing outcome is not relevant to damages, a limiting instruction substantially like the following would be appropriate:
You have heard that a judge in Plaintiff's criminal case held a preliminary hearing to decide whether the charges against Plaintiff were justified by probable cause, and that the judge concluded at the end of the hearing that probable cause existed. You may not let that judge's probable cause finding influence you in any way. In particular, you may not consider it when you deliberate about the probable cause element of Plaintiff's malicious prosecution claim. The judge in the preliminary hearing was required to assess probable cause under a different standard than the standard that you will apply when you deliberate about this case. So that judge's finding is not binding on you in any way, and you should not consider it during your deliberations.
E. Sanchez's Facebook Postings
Defendants list "Tyler Sanchez Facebook Excerpts" on their final exhibit list. (ECF No. 326-1 at 16–17.) This appears to refer to nearly 250 printed pages of material posted on Sanchez's Facebook page from 2016 to 2018. (See ECF Nos. 286-40 through -49.) Some of these posts contains references to marijuana, alcohol, and sexual activity, and the language is sometimes profane. (See ECF No. 286 at 19.)
Sanchez objects that this material is irrelevant to any issue in the case, is improper character evidence under Rule 404(a), and is unduly prejudicial, voluminous, and time-wasting under Rule 403. (Id .) Defendants respond that this material tends to rebut Sanchez's claims that "he is not mentally capable of thinking like a normal adult." (ECF No. 291 at 11.) In other words, they intend to use this evidence to challenge Sanchez's claim that his mental disability is obvious.
One post fits this mold, showing Sanchez sitting in front of his winnings at an organized poker tournament. (ECF No. 291-4.) Whether other Facebook posts are similarly relevant and admissible is impossible to tell without reviewing all 250 pages—which the Court will not do for a separate reason, namely, the Court will not permit Defendants to spend time going through 250 pages of Facebook postings in front of a jury. In light of Defendants' proffered reasons for introducing these posts, the Court agrees with Sanchez that the volume of postings would create undue delay and waste of time, and would likely be needlessly cumulative.
Defendants particularly like this post because it could be used to impeach deposition testimony from Dr. Wheeler that Sanchez does not have the mental capacity to play Texas Hold 'Em. (ECF No. 291-3 at 5.) Dr. Wheeler will not be testifying, but this post remains relevant to the obviousness of Sanchez's disabilities.
The Court will, however, permit Defendants to narrow their exhibits to 8 posts, inclusive of the poker tournament post, if desired. These 8 posts must be of the same character as the poker tournament post, i.e. , tending to rebut the obviousness of his disabilities. To be clear, posts about alcohol consumption, marijuana use, or sexual activity do not qualify unless there is substantial context (within the post, or through other admissible evidence) showing that Sanchez made a decision about these activities that tends to show cognitive capability beyond what his disabilities would suggest (e.g. , choosing not to engage in some activity despite pressure to do so).
If the Court excludes any of Defendants' 8 posts at trial, the Court will not grant Defendants an opportunity to substitute a less problematic post. In other words, the Court is not granting Defendants a right to put 8 posts into evidence. If, for example, Defendants offer 8 posts and the Court excludes 3, Defendants may only use the remaining 5, and no others. Defendants therefore must choose carefully.
Sanchez also argues that these posts were made too late in time—but not too late in time generally . Rather, he says they are too late in time to be relevant as rebuttal to his claim of emotional distress damages. (ECF No. 286 at 19.) The Court is aware of no stipulation that Sanchez's emotional distress ended as of a date certain. Defendants, however, do not respond to this argument. The Court therefore understands Defendants to have conceded that they do not intend to introduce any Facebook posts for purposes of rebutting emotional distress.
F. Dr. Bradley's Competency Examination
In February 2011, a psychologist, Dr. Mac Bradley, reported to the trial court that Sanchez was competent to proceed to trial. (See generally Bradley Opn. [ECF No. 313-1].) Although Dr. Bradley's specific emphasis was competency, much of his examination focused on Sanchez's ability to understand and communicate, and Dr. Bradley discussed the very disabilities later diagnosed by Dr. Wheeler. (See id . at 12 ("He has a documented history of receptive and expressive language disorder ....").) Dr. Bradley also discusses the need to present information to Sanchez "in multiple, simple ways" and then checking his comprehension with non-leading questions (id . at 13)—something Defendants did not do during their interrogations.
Sanchez nonetheless seeks to exclude all evidence regarding the competency examination. (ECF No. 286 at 20–22.) Sanchez argues that the competency standard is not the same as voluntariness (i.e. , susceptibility to false confession), that Dr. Bradley's observations were too late in time to provide helpful information, and that they will confuse the jury. (Id .) Defendants respond that if Dr. Bradley's observations are too late in time, then Dr. Wheeler's and Dr. Manguso's even-later observations are likewise too late in time. Defendants also claim that the difference between competency and voluntariness does not mean that Dr. Bradley's observations and opinions are irrelevant. (ECF No. 291 at 12–13.)
The Court finds that Dr. Bradley must be treated in the same way as Dr. Wheeler and Dr. Manguso. As with the latter two experts, there is no evidence that anyone questioned the results of his examination. To be sure, Ms. Eytan will testify that the competency standard does not account for the sorts of cognitive deficits with which Sanchez has been diagnosed, and that the competency standard is different from voluntariness. But there is no evidence that anyone questioned Dr. Bradley's conclusions in light of the standard he was required to apply.
Nonetheless, what Defendants, the prosecutors, and the judge knew about Dr. Bradley's conclusions is relevant to Defendants' state of mind and to favorable termination, even if Dr. Bradley cannot testify in support of the truth of his conclusions. In addition, evidence regarding the competency evaluation, including its outcome and the effect on the trial judge and the parties, is essential to understanding the complete story of Sanchez's criminal proceedings. For all of these reasons, Dr. Bradley himself is excluded but discussion of his competency evaluation is not.
X. DEFENDANTS' MOTION IN LIMINE (ECF No. 297)
Not surprisingly, Defendants' motion in limine also raises multiple distinct challenges, which the Court will address in turn.
A. Sanchez's Own Accounts of the Interrogations
Defendants seek to prevent Sanchez from providing his own account of the interrogations that led to his confession because the question for the jury is what Defendants perceived about Sanchez during the interrogation, and the video evidence will be the most helpful to the jury in that regard. (ECF No. 297 at 1–4.) But Sanchez must be permitted to testify concerning the effect the interrogations had on him in the moment. It is at least relevant to his damages claim. And if the Court permits Sanchez to testify about how he felt during the interrogation, it becomes nearly impossible to draw an administrable line between the sorts of questions that fairly lead into that sort of testimony and the sorts of questions that do not.
Moreover, it would simply be artificial to prevent Sanchez—the plaintiff —from giving the jury his story of the central events of this lawsuit. If Sanchez says something that conflicts with the video evidence, Defendants will have an easy time on cross-examination. This portion of Defendants' motion is therefore denied.
B. The "DUI Room" Video
Former Defendants Wolff and Hartley interviewed Sanchez in the "DUI room" of the Douglas County jail, which has a video-recording system without audio. Sanchez III , 299 F. Supp. 3d at 1172. No officer involved in the Sanchez prosecution made an effort to preserve that video before it was overwritten in the normal course after thirty days. Id . Sanchez's questioning of Mykes at her deposition shows that he intends to attack Mykes for failing to ensure the video's preservation, thus allegedly showing malice. (ECF No. 204-9 at 58–59; see also ECF No 311 at 4.) Defendants argue from the premise that destruction of the video is entirely Wolff's and Hartley's fault, and that "the probative value of a silent videotape is slight" and outweighed by undue prejudice, potential confusion, and so forth. (ECF No. 297 at 4–5.)
It is clear from Mykes's statements when interrogating Sanchez that she knew Wolff's and Hartley's interrogation earlier that morning had been "recorded." (ECF No. 205-23 at 32; see also ECF No. 214-13 at 90 (Mykes's cross-examination at the preliminary hearing: "Q. You told [Sanchez] that I have it on videotape because the other cops videotaped the whole thing and I saw it right? Isn't that what you told him? A. Yes I did.").) The fact that she knew about a recording and did not take steps to preserve it—whether or not she knew it was video-only—would be more probative if she had reason to suspect the things that Sanchez speculates the video would show, such as indications that Wolff and Hartley physically intimidated Sanchez. But the Court finds that failure to preserve the recording (whether through intent or sloppiness) is at least some evidence of whether Mykes intended to frame Sanchez, or whether she did not care that she might be framing Sanchez, and so the Court will not prohibit Sanchez from eliciting testimony about Mykes's knowledge of the video and her failure to take action to preserve it. This portion of Defendants' motion is also denied.
Sanchez's counsel is nonetheless cautioned to use considerable care in framing these questions and any arguments regarding this topic. In rhetoric, counsel has accused Mykes of "knowing destruction of evidence" (ECF No. 311 at 3), as if Mykes herself destroyed the videotape. Such misleading phrasing—about which the Court has warned Sanchez's counsel already, see Sanchez III , 299 F. Supp. 3d at 1202 —would amount to bad faith and will not be permitted at trial.
C. Insurance and Indemnification
Sanchez has designated Douglas County's liability insurance policy as an exhibit, and Defendants therefore seek to exclude any evidence or testimony regarding insurance or indemnification under Rule 411. (ECF No. 297 at 5–6.) Sanchez responds that he "will not seek to introduce evidence of insurance or indemnification unless Defendants open the door for admissibility." (ECF No. 311 at 5.) The Court therefore denies this portion of Defendants' motion as moot.
D. Article Regarding False Confessions & Wikipedia Article Regarding Reid Technique
Sanchez has designated as an exhibit an article "written, in part, by the Center on Wrongful Convictions at Northwestern University" which "is a compilation of stories and statistics pertaining to persons who were convicted and later found to be not guilty." (ECF No. 297 at 6.) Sanchez has also designated as an exhibit a Wikipedia article on the Reid Technique, referring to the interrogation technique of using misleading or untrue statements (e.g. , "why would we have found your DNA at the crime scene?"). (Id . at 7.) Defendants object that these articles are irrelevant, hearsay, or at least unduly prejudicial and confusing. (Id . at 6–8.)
Sanchez responds that the two documents may be introduced on cross-examination of Dr. Frumkin under Rule 803(18), which is the hearsay exception for
[a] statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert's admission or testimony, by another expert's testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
(See ECF No. 311 at 5–6.) Sanchez does not explain how he plans to satisfy the "(B)" prong of this test. The Court therefore rejects his Rule 803(18) argument.
Sanchez further responds that these documents may be used for refreshing recollection under Rule 803(5), which is the hearsay exception for
[a] record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the witness's knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
(See ECF No. 311 at 5–6.) Again, Sanchez does not explain how he plans to satisfy the "(B)" prong of this test. The Court therefore rejects his Rule 803(5) argument.
This portion of Defendants' motion is granted. The Center on Wrongful Convictions article and the Wikipedia article are excluded.
E. DNA Testing and Results
Defendants learned in November 2009 that DNA recovered from the Quarry Hill location did not match Sanchez's DNA. See Sanchez III , 299 F. Supp. 3d at 1186. Defendants seek to exclude this revelation because it could not have factored into probable cause in July 2009, it supposedly came too late for Defendants to do anything about it (because ADA Sugioka was in charge at that point), and it is otherwise unduly prejudicial and confusing. (ECF No. 297 at 8–9.)
As with many things favorable to Defendants that the Court will admit, this evidence is at least admissible so that the jury may hear the full story of what happened to Sanchez between his arrest and the eventual dismissal of the charges. Moreover, the Court agrees with Sanchez that this evidence is relevant to Defendants' state of mind. A police officer can be liable for both causing and continuing an unjustified prosecution. Sanchez is within his rights to argue that, at least by the time of the DNA results, Mykes and Duffy must have known that Sanchez had falsely confessed, and to further argue that if they had expressed as much to Sugioka at that time, he would have promptly dismissed the charges. Defendants are free to argue to the contrary.
The Court agrees that the DNA evidence cannot be a part of the jury's probable cause deliberations, but the Court sees no need for a limiting instruction in this regard. The jury will be instructed that the first thing they need to agree upon is whether Sanchez has proven the malice element against Mykes or Duffy, or both. Only if the answer is "yes" will the jury go on to an instruction about evaluating probable cause, and that instruction will carefully lay out the procedure described in Taylor , 82 F.3d at 1562, i.e. , removing false information and inserting material omissions known to the officers at the time, as adapted to the circumstances of this case. This procedure necessarily excludes the later DNA findings. But if Defendants believe a limiting instruction is necessary, they may submit one.
This portion of Defendants' motion is denied.
F. Events Related to Posting Bond on the Branham Drive Trespass Charge
As described in the Summary Judgment Order, Sanchez's father bonded him out of jail on the Branham Drive trespass charge while Sanchez was actually in another location undergoing the polygraph examination. Sanchez III , 299 F. Supp. 3d at 1184. While Sanchez was in the middle of writing his confession, Mykes learned that Sanchez's father was trying to get him out of jail, and Mykes claims that she already told jail staff that Sanchez was being held on new charges. Id . Sanchez's interpretation of these events, however, is that Mykes was by then committed to framing Sanchez for the Quarry Hill sexual assault, and her unwillingness to respond to his father's demands is evidence of this state of mind. (ECF No. 311 at 8; see also ECF No. 204 ¶¶ 70–77.)
Defendants argue that evidence regarding this episode is irrelevant "to the issue of whether or not the Detectives formed the subjective belief that Plaintiff's confession was accurate." (ECF No. 297 at 10.) Defendants alternatively argue that the episode has so little evidentiary value compared to its likelihood of undue prejudice or confusion that it should be excluded. (Id . at 10–11.)
The Court agrees with Sanchez that evidence about his father bonding him out and Mykes's response to that has at least some tendency to show her state of mind. The evidence also would not be unduly prejudicial or confusing. This portion of Defendants' motion is denied.
G. Disciplinary History and Internal Affairs Records
Defendants seek to exclude evidence gathered from their disciplinary records. (ECF No. 297 at 11.) Sanchez states that he does not plan to introduce evidence from those disciplinary records. (ECF No. 311 at 8.) This portion of Defendants' motion is therefore denied as moot.
Defendants further seek to exclude evidence of Douglas County's internal affairs investigation related to this incident. (ECF No. 297 at 11–12.) "The risk of prejudice to the Defendants is substantial in that the jury may conclude the very instance of an Internal Affairs investigation suggests that the Detectives did something wrong." (Id . at 12.) Sanchez responds that he plans to use "statements made by Mykes and Duffy during [the] internal affairs investigation that are inconsistent with statements made in their depositions and presumably again at trial." (ECF No. 311 at 8–9.) Sanchez also says that "[t]he fact of the internal affairs investigation is also relevant to Defendants' credibility as the disciplinary consequences of a finding of malicious prosecution provide them an incentive to conceal the truth." (Id . at 9.)
Neither party has disclosed the outcome of the internal affairs investigation. Regardless, the Court agrees with Defendants that the risk of undue prejudice is extremely high if the jury hears of an internal affairs investigation. But the Court also agrees with Sanchez's argument that he should be permitted to cross-examine Defendants about prior inconsistent statements in the investigation documents. The Court therefore rules that Sanchez may cross-examine using those statements but must establish the context generically. For example, if referring to a statement in a transcript, Sanchez may refer to a "discussion"; Sanchez may provide the name of the person asking the questions and may refer to them generically as another Douglas County employee; and Sanchez may give the date of the discussion. If referring to a statement in a document, Sanchez may refer to a "written statement" of a specific date on which Mykes said such-and-such. In either case, Sanchez may not state, imply, or attempt to hint that the discussion or written statement was made in the context of an internal affairs investigation. To the extent an exhibit is admitted into evidence in this regard, it must be excerpted down to the relevant pages only, and those pages must be redacted to the extent they might reveal the internal affairs context.
This portion of Sanchez's motion is therefore granted in part and denied in part to the foregoing extent.
H. Testimony "Regarding" Sanchez by Family Members, Defense Attorney(s), Co-Workers and Friends
Defendants seek to exclude Sanchez from putting on testimony of family members and other associates for purposes of: (1) demonstrating his good character or the obviousness of his disability, (2) supporting his claim for damages, or (3) establishing his innocence. (ECF No. 297 at 12–15.)
Plaintiffs deny any intent to put on these sorts of witnesses as character witnesses, but they do not deny their intent to put on witnesses who will testify that Sanchez's disabilities are obvious, and regarding Sanchez's damages. (ECF No. 311 at 9–10 & n.7.) The Court finds that this sort of evidence is not per se inadmissible. However, the Court will strictly enforce Rule 701 to the extent these witnesses express a lay opinion about the obviousness of Sanchez's disabilities. In particular, Sanchez's counsel must lay a clear foundation that the opinion is "rationally based on the witness's perception." Fed. R. Evid. 701(a).
In addition, this evidence has a strong potential for being unnecessarily cumulative. The Court will vigorously police the provisions against wasting time and needless cumulative evidence found in Rules 403 and 611(a). Sanchez is strongly encouraged to explore relevant topics only with those witnesses who can provide the most compelling and salient testimony.
As for innocence, the Court has already ruled that it will not permit Sanchez to present a freestanding innocence case. But to the extent Sanchez's witnesses will be testifying anyway, they may testify as to matters within their personal knowledge suggesting his innocence.
I. Cost of Plaintiff's Criminal Defense
Defendants seek to exclude evidence regarding the cost of Sanchez's criminal defense because Sanchez did not personally incur these costs. Rather, family members did. (ECF No. 297 at 15–17.) Sanchez responds with deposition excerpts that he characterizes as establishing that the money paid on his behalf was a loan and he is required to repay. (ECF No. 311 at 10–11.) The Court has reviewed these excerpts. Sanchez and his parents are unequivocal in referring to the money paid on his behalf as a "loan," but it is much less clear whether that label should actually apply. If there are any real terms of the purported loan, they appear to be a rather loose "when you can, if you can" repayment obligation.
Defendants' argument includes a paragraph surveying the case law on whether criminal defense fees are a proper item of damages in a malicious prosecution case (see id . at 16–17), but Defendants do not argue that such fees should be excluded as a matter of law.
The Court need not resolve this matter on this record. The Court will permit evidence of the criminal defense fees and testimony regarding the purported loan. The Court will then provide a separate line item in the "Damages" portion of the verdict form for the jury to break out the fees they award as damages, if any. Only if the jury finds for Sanchez and chooses to award criminal defense fees does the Court need to address whether the understanding Sanchez has with his family members amounts to an obligation that justifies an award of damages. That matter may be addressed in a post-verdict ruling.
The Court rejects Defendants' notion that the amount paid in criminal defense fees "is also prejudicial, as a jury may be influenced in reaching their verdict based upon the cost of Plaintiff's criminal defense." (ECF No. 297 at 17.) Even if this were theoretically true, the Court could not agree with Defendants without knowing the actual amount, which Defendants do not disclose. In any event, the Court has interacted with dozens of juries post-trial and has never once suspected that damages evidence—which is introduced in nearly every jury trial—has swayed a jury's consideration on liability.
This portion of Defendants' motion is denied.
J. Non-Party Witnesses in the Courtroom During Trial
Defendants move for, and Plaintiffs agree that, the Court should exclude non-party witnesses from the courtroom during trial, apparently under Rule 615 (although Defendants do not actually cite that rule). This portion of Defendants' motion is granted. The Court will have additional instructions on this matter at the 8:30 AM meeting on the first day of trial.
XI. MOTION TO STRIKE AFFIRMATIVE DEFENSE
In response to the portion of Sanchez's motion in limine seeking to exclude the testimony of ADA Sugioka (see Part IX.A, above), Defendants argued that Sugioka's testimony, particularly about concerns that Mykes expressed to him, should come in because "raising such evidentiary concerns with the prosecuting attorney is sufficiently probative that some courts hold that such communications establish an absolute defense to a malicious prosecution claim." (ECF No. 291 at 4.) As authority, Defendants primarily cite Colorado Jury Instructions—Civil § 17:8 (4th ed., July 2018 update), which reads as follows:
Affirmative Defense—Advice of Prosecuting Attorney
The defendant, (name) , is not legally responsible to the plaintiff, (name) , on (his) (her) claim of malicious prosecution if you find that the defendant has proved the affirmative defense of advice of a prosecuting attorney. This affirmative defense is proved if you find all of the following:
1. The defendant made a full, fair, and honest disclosure to a prosecuting attorney of all the facts the defendant knew or reasonably should have known concerning the guilt or innocence of the plaintiff;
2. On the basis of these facts, the prosecuting attorney determined there were reasonable grounds to believe that the plaintiff may have committed a crime; and
3. The prosecuting attorney (brought) (advised bringing) the criminal case against the plaintiff.
Notes on Use
1. Use whichever parenthesized words are appropriate.
2. Advice of a prosecuting attorney is an affirmative defense on which the defendant has the burden of proof.
(Boldface and italics in original.) Defendants have also proposed a jury instruction modeled on the foregoing. (ECF No. 306 at 15.)
Sanchez now moves to strike this affirmative defense because it was "not asserted in Defendants' Answer, Statement of Defenses in the Final Pre-Trial Order, or in any briefing prior to the recently filed Response to Plaintiff's Motions in Limine , and because Defendant Mykes was expressly instructed not to answer questions relevant to this defense." (ECF No. 310 at 1–2.) The Court views this as basically two arguments: (1) the defense was not properly disclosed, and (2) the defense was forfeited through failure to permit certain discovery. The Court need only address the lack of proper disclosure.
In the "Affirmative Defenses" section of their answer, Defendants pleaded that "Plaintiff's injuries, if any, were caused by a third party for whom [Defendants] were not responsible." (ECF No. 82 ¶ 39.) Although listed as an affirmative defense, this statement is framed in terms of causation, or in other words, a reason to find that Sanchez will not or cannot carry his burden on the causation element. This statement is also generic, as it could apply to any "third party." It is not obviously an announcement of the affirmative defense that Defendants now assert explicitly.
Even if the case were otherwise, Defendants failed to include "advice of prosecuting attorney" or anything substantially similar in the Final Pretrial Order. There, Defendants "deny the factual bases of Plaintiff Sanchez's claim" (e.g. , coercion to confess), reassert qualified immunity, deny the existence of any relevant municipal policy or custom, argue that Sanchez did not file this lawsuit within the statute of limitations, and claim that Sanchez failed to mitigate his damages by unnecessarily extending his own criminal proceedings. (ECF No. 265 at 4.) Defendants then conclude with the following: "Finally, the injuries of which [Sanchez] complains were caused in part by others, including at least one previously-named defendant with whom Plaintiff Sanchez has settled. Any liability on the part of [Defendants] should be allocated or offset accordingly." (Id .) Defendants placement of the argument and choice of words—"caused in part," "allocated or offset accordingly," etc.—shows that Defendants themselves did not have in mind their complete defense of "advice of prosecuting attorney" when they wrote this portion of the Final Pretrial Order.
Presumably referring to Dickson, who persuaded Sanchez to provide his written confession.
A final pretrial order "controls the course of the action unless the court modifies it," and "[t]he court may modify [it] only to prevent manifest injustice." Fed. R. Civ. P. 16(d), (e). Defendants have not moved to amend the Final Pretrial Order and this matter does not present a basis to do so anyway, for three reasons.
First, the affirmative defense derives from Colorado law discussing Colorado's common-law tort of malicious prosecution. Sanchez, by contrast, brings a Fourth Amendment malicious prosecution claim by way of 42 U.S.C. § 1983. An affirmative defense under Colorado law does not necessarily apply, even by analogy. Cf. Wilkins , 528 F.3d 790, 797 ("The common law elements of malicious prosecution are the starting point for our analysis of a § 1983 malicious prosecution claims. But the ultimate question in such a case is whether plaintiff has proven the deprivation of a constitutional right." (internal quotation marks and citation omitted)).
Second, there are reasons not to adopt the affirmative defense by analogy, including that it creates confusion regarding the elements of the cause of action as compared to the elements of the affirmative defense. Evidence in support of the affirmative defense (on which the defendant bears the burden) also tends to rebut malice and causation (on which the plaintiff bears the burden). This overlap is likely to create confusion, particularly in this case where Sanchez's theory turns on proving lack of "a full, fair, and honest disclosure to a prosecuting attorney of all the facts the defendant knew or reasonably should have known concerning the guilt or innocence of the plaintiff." Colorado Jury Instructions—Civil § 17:8, element 1.
Third, even if the affirmative defense under Colorado law was likewise an established affirmative defense under federal law, there would be no manifest injustice to exclude it in this case. As just mentioned, Defendants can still argue for effectively the same result by using evidence of their interactions with the prosecutor to rebut Sanchez's evidence of malice and causation.
The Restatement, on which the Tenth Circuit relies in the malicious prosecution context, contains a similar instruction. See Restatement § 666. But it is not clear whether the Restatement intends this to be an affirmative defense or a manner of rebutting the plaintiff's showing on the probable cause element.
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For these reasons the Court grants Sanchez's motion to strike Defendants' newly raised "advice of prosecuting attorney" affirmative defense.
XII. PRELIMINARY ELEMENTS INSTRUCTION
Given the limiting instructions that the Court plans to give, the jury will necessarily need to understand from the beginning of the case the various elements of the cause of action. The Court proposes the following, which the Court will read as part of the preliminary instructions, and a printed copy of which the jury will receive at the same time:
For Plaintiff to prove his claim for malicious prosecution, he will need to prove that five things are true. These are known as the five "elements" of his cause of action. They are:
1. "Causation." Defendant Mykes, Defendant Duffy, or both, caused Plaintiff's continued confinement or prosecution.
2. "Favorable Termination." The criminal case against Plaintiff terminated in his favor.
3. "Lack of Probable Cause." No probable cause supported the arrest, continued confinement, or continued prosecution. This is also sometimes known simply as the "probable cause" element.
4. "Malice." Defendant Mykes, Defendant Duffy, or both acted with malice. This is also sometimes known as the "state of mind" element.
5. "Damages." The actions of Defendant Mykes or Defendant Duffy, or both, caused injuries to Plaintiff.
It may turn out that you will deliberate only on some of these elements, not all of them. That depends on the evidence the parties choose to present and the positions they take during the trial. But you will eventually deliberate on at least some of these elements, so you should keep them in mind throughout the trial.
XIII. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. The Court WITHDRAWS its intent to grant summary judgment on the favorable termination element under Rule 56(f) (ECF No. 314);
2. The following motions are GRANTED IN PART and DENIED IN PART as stated above:
a. Sanchez's Motion to Limit Defendants' Expert Testimony Under F.R.E. 702 (ECF No. 269);
b. Defendants' Rule 702 Motion to Exclude Expert Testimony of Richard Spiegle (ECF No. 274);
c. Defendants' Rule 702 Motion to Exclude Expert Testimony of Iris Eytan (ECF No. 275);
d. Sanchez's Motions in Limine (ECF No. 286); and
e. Defendants' Motions in Limine (ECF No. 297);
3. The following motions are GRANTED:
a. Defendants' Rule 702 Motion to Exclude Expert Testimony of Plaintiff's Psychiatrists (ECF No. 270);
b. Defendants' Rule 702 Motion to Exclude Expert Testimony of Charles Honts (ECF No. 273), with the proviso that Defendants do not call former Defendant Dickson as a witness; and
c. Sanchez's Motion to Strike Defendants' Affirmative Defense (ECF No. 310);
4. The parties shall confer about the Court's proposed limiting instructions (see Parts IX.B, IX.C, IX.D, and XII) and whether one is needed regarding the DNA evidence (see Part X.E), and then, on or before November 20, 2018 , Sanchez shall file on behalf of all parties a single document setting forth (as appropriate) one or both parties' agreement to the Court's instruction, the parties' stipulated counter-proposal, the parties' separate proposals, or (with respect to DNA evidence) any original proposal;
5. On or before November 20, 2018 , Defendants shall disclose to Sanchez the 8 Facebook posts Defendants may attempt to introduce into evidence (see Part IX.E); and
6. Any party that believes it must make an offer of proof in light of this Order must be prepared to do so prior to resting its case at trial.