Whitfield v. Riley et al

Filing 255

ORDER AND REASONS: GRANTING 177 Motion in Limine, as stated herein. Signed by Judge Barry W Ashe on 06/04/2021. (Reference: 09-1877)(am)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ARABIA WHITFIELD, et al.

CIVIL ACTION

VERSUS

NO. 09-1877 c/w 09-8074
PERTAINS TO 09-1877

WARREN RILEY, et al.
SECTION M (2)
ORDER & REASONS
Before the Court is the motion in limine of plaintiff Arabia Whitfield to admit a mannequin
depicting the trajectory of bullets fired into Adolph Grimes, III.1 Defendants Warren Riley, Joseph
Meisch, Daniel Scanlan, Greg Lapin, Steven Keller, Marcellus White, Julio Alonzo, Larisa Austin,
Regina Barr, Colette Booth, and the City of New Orleans (collectively, the “Defendants”) oppose
the motion.2 Whitfield replies in further support of her motion.3 Having considered the parties’
memoranda, the record, and the applicable law, the Court issues this Order & Reasons granting
the motion.
I.

BACKGROUND
This case arises from the fatal police shooting of Grimes in the early-morning hours of

January 1, 2009. Whitfield’s shooting reconstruction expert, Steven Howard, created a mannequin
to show the trajectory of bullets fired into Grimes.4 Howard inserted wooden rods into the
mannequin to depict the trajectory and entrance and exit wounds of each bullet fired into Grimes.5
Whitfield’s expert pathologist, Dr. Francisco Diaz, submitted an unsworn statement made under

1

R. Doc. 177.
R. Doc. 220.
3
R. Doc. 246.
4
R. Docs. 177 at 1; 177-5.
5
R. Doc. 177-5.
2

penalty of perjury that the “mannequin demonstrative aid is accurate, and it will assist the jury to
understand the gunshot wounds Adolph Grimes, III sustained.”6
II.

PENDING MOTION
Whitfield argues that the mannequin is essential as it will “greatly aid the jury in

understanding the highly technical and fact-intensive nature of this matter.”7 She notes that the
exhibit need not be completely accurate to be admitted and its admission is largely within the
discretion of the district court judge.8 Whitfield explains that the mannequin was created based on
“the Coroner’s report, the Coroner’s photographs of Mr. Grimes’ injuries taken at his autopsy, the
testimony of the officers and witnesses, and the expert opinion of” Howard.9 Finally, Whitfield
emphasizes that Diaz, a medical professional, has verified the mannequin’s accuracy and
reliability.10
In opposition, Defendants argue that this motion is premature because the foundation for
the evidence must be laid at trial and the Court needs to examine the construction of the mannequin
in person before it can rule on the motion.11 Defendants contend that Whitfield is offering the
mannequin “to prove disputed facts, namely, the hotly contested issue of the trajectories of the
bullets fired by Defendant Officers.”12 Because this is a disputed fact and not merely a general
scientific principle, Defendants say that the “substantial similarity” test used for replicated
experiments must be applied.13 Ultimately, the Defendants argue that the mannequin should be

6

R. Doc. 177-4.
R. Doc. 177-1 at 1.
8
Id. at 4-5.
9
Id. at 6.
10
Id. at 9.
11
R. Doc. 220 at 1. Whitfield offers “to provide the Court with the physical mannequin before trial at the
Court’s behest, and this Court may defer his judgment until he has had an opportunity to view the mannequin.” R.
Doc. 246 at 1.
12
R. Doc. 220 at 3.
13
Id. at 2-4.
7

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excluded under Rule 403 because it can be manipulated and is merely cumulative of the coroner’s
photographs depicting the trajectories of the bullets.14
III.

LAW & ANALYSIS
“The admissibility of demonstrative evidence is largely within the discretion of the trial

judge, and his exercise of that discretion will not be upset ‘unless there is no competent evidence
in the record to support it.” Wright v. Redman Mobile Homes, Inc., 541 F.2d 1096, 1097-98 (5th
Cir. 1976) (quotation omitted). However, “[e]ven where expert witnesses create the demonstrative
simulations, models, or mock-ups they propose to use to help illustrate their testimony, courts must
nonetheless carefully examine such materials to insure their reliability and probative value.”
Estate of Jaquez v. Flores, 2016 WL 1060841, at *10 (S.D.N.Y. Mar. 17, 2016).
“Mannequins, for example, can be used to demonstrate a variety of relevant facts, including
injuries or the trajectories of bullets.” 3 BARBARA E. BERGMAN, NANCY HOLLANDER & THERESA
M. DUNCAN, WHARTON’S CRIMINAL EVIDENCE § 16:26 (15th ed. 2020) (collecting cases). See
also Brodeur v. Champion, 2019 WL 3854302, at *1 (D. Conn. Aug. 16, 2019) (“Demonstrative
exhibits, and mannequins specifically, are often used as visual aids to help illustrate expert witness
testimony.”) (collecting cases). The Sixth Circuit has held that a trial court did not commit clear
error when it admitted a mannequin dressed in the defendant’s clothes to test the witness’ ability
to identify the robber they saw. United States v. Cork, 69 F. App’x 733, 739 (6th Cir. 2003). In
another case, a mannequin was helpful because gun “trajectory testimony is technical, and the use
of the mannequin will assist the jury in understanding it.” Jordan v. City of Chicago, 2012 WL
254243, at *10 (N.D. Ill. Jan. 27, 2012). The opposing side was allowed to use the mannequin to
discredit the offering expert’s theory. Id.

14

Id. at 3-4.

3

Here, Defendants’ objections as to the mannequin’s susceptibility to manipulation go to
the weight, not the admissibility of the evidence. “[C]oncerns with the scale of the mannequin and
the inconsistencies between the positioning of the mannequin and … testimony” can be explored
through cross-examination. Id. Because the mannequin will help the jury understand technical
testimony and information, it will be admitted (assuming a proper foundation is laid) with one
limitation. Defendants request that the mannequin not be allowed to go to the jury room during
deliberations “because this will clearly invite jury mischief.”15 Whitfield does not object to this
request,16 and the Court adopts it by agreement of the parties.
IV.

CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that the motion in limine of plaintiff Arabia Whitfield to include

demonstrative aid evidence (R. Doc. 177) is GRANTED, subject to a proper foundation being laid.
By the parties’ consent, the mannequin will not be allowed in the jury room during deliberations.
New Orleans, Louisiana, this 4th day of June, 2021.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE

15
16

Id. at 4.
R. Doc. 246 at 2.

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