Davis et al v. The City of New York et al

Filing 275

OPINION & ORDER: On March 28, 2013, this Court issued the second part of its ruling on the parties' motions for summary judgment. The March 28 Opinion noted that plaintiffs had offered [a] sample of decline to prosecute forms [DP forms] from var ious District Attorneys offices in support of "the conclusion that the City has a persistent and widespread practice of performing unconstitutional trespass stops and arrests in NYCHA buildings." Defendant the City of New 2 York argued in a reply brief that the DP forms are inadmissible hearsay. I invited further briefing, which has now been submitted. In Ligon v. City of New York, another case related to the NYPDs stop and frisk practices, I allowed the admission of DP forms describin g stops outside TAP buildings as evidence of the NYPDs stop practices. Unlike in this case, however, the City had conceded the admissibility of the records for that limited purpose. I have already ruled in this case that DP forms are admissible for t he purpose of showing notice to the City of allegedly unconstitutional practices. Atissue now is plaintiffs request to use the DP forms as evidence in support of their class certification motion. For the reasons set forth below, the DP forms are admi ssible subject to the limitations described below. For the foregoing reasons, the DP forms are admissible as evidence of the NYPDs trespass enforcement practices in and around NYCHA buildings. Pursuant to the Citys request, plaintiffs are ordered to identify the specific DP forms summarized in plaintiffs submission. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 5/24/2013) (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER,
EDWIN LARREGUI, ANTHONY
ANDERSON, SHAWNE JONES, HECTOR
SUAREZ, ADAM COOPER, DAVID
WILSON, GENEVA WILSON, ELEANOR
BRITT, ROMAN JACKSON, KRISTIN
JOHNSON, LASHAUN SMITH, ANDREW
WASHINGTON, PATRICK LITTLEJOHN,
RAYMOND OSORIO, VAUGHN
FREDERICK, and R.E., by her parent D.E.,
individually and on behalf of a class of all
others similarly situated,

OPINION & ORDER
10 Civ. 0699 (SAS)

Plaintiffs,
- against ­
THE CITY OF NEW YORK and NEW
YORK CITY HOUSING AUTHORITY,
Defendants.

-------------------------------------------------------)(
SHIRA A. SCHEINDLIN, U.S.D.J.:

I.

INTRODUCTION

On March 28, 2013, this Court issued the second part of its ruling on
the parties' motions for summary judgment.' The March 28 Opinion noted that

See Davis v . City ofNew York, No. 10 Civ. 0699,2013 WL 1288176
(S.D.N.Y. Mar. 28,2013). The procedural background and facts of the case have
been laid out in previous opinions, and familiarity with them is assumed. See, e.g.,
id. at * 1--4.
1

plaintiffs had offered “[a] sample of decline to prosecute forms [‘DP forms’] from
various District Attorney’s offices” in support of “the conclusion that the City has
a persistent and widespread practice of performing unconstitutional trespass stops
and arrests in NYCHA buildings.”2 Defendant the City of New York argued in a
reply brief that the DP forms are inadmissible hearsay.3 I invited further briefing,
which has now been submitted.4
In Ligon v. City of New York, another case related to the NYPD’s stop
and frisk practices, I allowed the admission of DP forms describing stops outside
TAP buildings as evidence of the NYPD’s stop practices. Unlike in this case,
however, the City had conceded the admissibility of the records for that limited
purpose.5
I have already ruled in this case that DP forms are admissible for the

2

Id. at *12.

3

See id.

4

See 4/17/13 Letter from Johnathan J. Smith, Counsel for Plaintiffs, to
the Court (“Pl. Letter”); 4/24/13 Letter from Judson Vickers, Counsel for
Defendant City of New York, to the Court (“City Letter”).
5

See Davis, 2013 WL 1288176, at *12 (citing Ligon v. City of New
York, — F. Supp. 2d —, No. 12 Civ. 2274, 2013 WL 628534, at *7–8 (S.D.N.Y.
Feb. 14, 2013)).
2

purpose of showing notice to the City of allegedly unconstitutional practices.6 At
issue now is plaintiffs’ request to use the DP forms as evidence in support of their
class certification motion.7 Plaintiffs have also indicated that they might attempt to
use the DP forms as evidence of the City’s stop and arrest practices at trial.8 In
both instances, plaintiffs seek to use the narratives in the DP forms for the truth of
the matters asserted — that is, as evidence that the stops and arrests described on
the forms took place as the forms state. Plaintiffs have not provided a precise
count of the number of DP forms they might seek to admit, but the number may be
as high as seventy-six.9
For the reasons set forth below, the DP forms are admissible subject
to the limitations described below.

6

See Transcript of 4/5/13 Conference (“4/5/13 Tr.”) at 13. (All
subsequent references to transcripts in this case will follow a similar format.)
Indeed, the City has emphasized that the “NYPD takes decline to prosecutes very
seriously. They track it, they retrain officers as a result of it.” 2/17/12 Tr. at 32.
Specifically, the City tracks prosecution declinations through a system called
“OLPA.” See 1/7/13 Declaration of Katharine E.G. Brooker, Counsel for Plaintiffs
(“Brooker Decl.”) ¶ 2.
7

See 4/5/13 Tr. at 12, 14.

8

See City Letter at 4 (citing 2/17/12 Tr. at 44; 11/2/11 Tr. at 29).

9

See Brooker Decl. ¶¶ 9–14, 16–18, 20–21. There may be some
overlap between the DP forms summarized in these paragraphs, in which case the
total count of DP forms that plaintiffs seek to admit would be lower.
3

II.

BACKGROUND
Plaintiffs served the District Attorneys’ Offices (“DAOs”) of Bronx,

Queens, Kings (Brooklyn), New York (Manhattan), and Richmond (Staten Island)
Counties with subpoenas requesting information concerning trespass arrests
charged under New York Penal Law §§ 140.05, 140.10(a), (e), or (f), and 140.15,
that the DAOs declined to prosecute.10 Pursuant to this Court’s orders, the DAOs
of Bronx, Kings, New York, and Queens Counties produced a sample of 1,177 DP
forms from selected months in the years 2008 to 2012.11 Plaintiffs have stated that
three hundred and six (or twenty-six percent) of these DP forms reflect arrests for
trespass on property owned and operated by NYCHA, as indicated by the DAOs.12
This total does not include any DP forms from the Queens DAO, which has a
database that cannot distinguish between NYCHA and non-NYCHA trespass
arrests.13 I have also ruled that only forms reflecting pre-arraignment dismissals

10

See Brooker Decl. ¶ 5. For a discussion of some of these trespass
laws in relation to this case, see Davis, 2013 WL 1288176, at *8 n.85, *10 n.104.
11

See Pl. Letter at 1–2; Brooker Decl. ¶ 5 & n.1. Richmond County was
excluded from the sample because it apparently does not record declined
prosecutions on forms that could feasibly be produced. See Pl. Letter at 1 n.1; City
Letter at 1 n.1.
12

See Brooker Decl. ¶ 6.

13

See id. ¶¶ 6 (306 total), 8 (64 from New York County), 15 (42 from
Kings County), 19 (200 from Bronx County); 11/2/11 Tr. at 37.
4

are relevant, due to the difficulty of categorizing post-arraignment dismissals.14
The record contains descriptions of how DP forms are prepared in
each of the remaining three counties (Bronx, Kings, and New York). In general, it
appears that the process begins in the hours or days after the arrest when an
Assistant District Attorney (“ADA”) interviews the arresting officer and learns of
the basis for the arrest.15 If the ADA decides to decline prosecution prior to the
docketing of the case, either the ADA or another trained DAO employee will
prepare a DP form.16 Each DAO uses a different DP form,17 but all of the forms

14

See 2/17/12 Tr. at 6–7; City Letter at 1 n.1.

15

See, e.g., 2/7/12 Tr. at 33 (statement by City that DP forms contain
“the district attorney’s characterization of the conversation with the arresting
officer”). A representative of the Bronx DAO stated that a common reason for prearraignment prosecution declinations is that “the police officer failed to appear.”
10/13/11 Tr. at 6. Each of the sample DP forms submitted by plaintiffs, however,
begins with a statement of what the arresting officer observed. See Exs. A–G to
Brooker Decl. One of the DP forms also refers to information contained in a
Criminal Trespass Fact Sheet. See Ex. F to Brooker Decl.
16

The practice appears to vary by county and by the type of case. New
York County ADA Sarah Hines stated that the majority of cases in Manhattan are
screened before arraignment by ADAs, although there is also an “expedited
affidavit program” in which “a certain number” of cases are screened by paralegals
or other non-attorneys. 8/1/11 Tr. at 21. As part of the New York County DAO’s
arguments against extensive discovery of DP forms, ADA Hines later described the
preparation of DP forms as follows:
The people who input the reasons are not attorneys. They
are people who in one case sit in the arraignment part, listen to
what happens, obtain a copy of the handwritten annotated court
5

feature a narrative describing the basic facts of the arrest and why the DAO chose
to decline prosecution.18 Plaintiffs state that every DP form at issue in this case has
been reviewed and approved by a supervising ADA.19
Plaintiffs provided seven sample DP forms as exhibits in support of
plaintiffs’ opposition to the City’s and NYCHA’s partial summary judgment
motions.20 The narratives in the forms read as follows:

calendar after the end of arraignments, and input reasons on that
basis to the best of their interpretation. If there is more than one
reason for the dismissal, they may cite only one. Once in a while
they may cite a reason that is not an accurate reason or an
incomplete reason.
11/2/11 Tr. at 4. Kings County ADA Phyllis Mintz stated that in Brooklyn, the
DAO reviews cases that involve desk appearance tickets, although in some other
cases, “the entire evaluation is done by the police on an expedited basis.” 7/20/11
Tr. at 33. Bronx County ADA Mary Jo L. Blanchard stated that in Bronx County,
the ADA prepares the DP form. See 7/20/11 Tr. at 17. The City represents,
however, based on the ongoing discovery in Ligon v. City of New York, No. 12 Civ.
2274 (S.D.N.Y.), that in the Bronx prior to mid-2012, if a police officer submitted
a supporting declaration, an aide or paralegal would review the paperwork before
bringing the matter to the attention of an ADA, who often would not speak with the
officer. See City Letter at 5 n.6.
17

See Brooker Decl. ¶ 7.

18

See, e.g., Exs. A (New York County DP form), E (Kings County DP
form), G (Bronx County DP form) to Brooker Decl.
19

See Pl. Letter at 5 (citing, as examples, Exs. A–G to Brooker Decl.);

id. at 7.
20

See Exs. A–G to Brooker Decl.
6

A.

From the New York County DAO: “[redacted] This
individual was observed entering and exiting a New York
City Housing Authority building.
Based on this
information, the individual was stopped and questioned.
[redacted], the Manhattan District Attorney’s Office
declines to prosecute this case.”

B.

From the New York County DAO: “In this case, the
arresting officer observed [redacted], a building tenant, and
several separately-charged defendants on the roof of a New
York City Housing Authority building and arrested
[redacted] for Criminal Trespass. However, [redacted] was
an invited guest of said tenant, and there are no signs
posted before the roof that say that invited guests, tenants
and others cannot be on the roof. Accordingly, [redacted]
did not have prior notice that being on the roof was
unlawful, the People decline to prosecute this case.”

C.

From the New York County DAO: “In this case, [redacted]
was observed inside the lobby of a New York Housing
Authority building, a dwelling where people reside. When
the arresting officer stopped [redacted] and asked him why
he was inside said building, [redacted] responded in
substance, ‘I was there to see [redacted].’ Afterwards, the
arresting officer did not further question [redacted] or make
any further investigations as to whether [redacted] was an
invited guest of a tenant or a tenant of said building, and
[redacted] did not make any statements indicating thereof.
[redacted]”

D.

From the New York County DAO: “[redacted] The
defendant in this case was observed entering a New York
City Housing Authority Building and attempting to exit the
building a short time later. Based on these observations,
the arresting officer questioned the defendant. The
defendant informed the arresting officer that he went to
apartment 4F to see if his girlfriend was inside that
apartment and that a guy named Frank lives in 4F. The
7

arresting officer went to apartment 4F and spoke to Frank,
who informed the officer that he knew the defendant and
that the defendant had just been at his apartment looking
for a videotape. Based on the inconsistency between Frank
and the defendant’s story, the defendant was placed under
arrest for trespass. [redacted], the People decline to
prosecute this case.”
E.

From the Kings County DAO: “AO OBSERVED DEF
SEATED IN THE STAIRWELL OF THE ABOVE
LOCATION.
DEF STATED HE WAS VISITING
[redacted]. AO ARRESTED DEF[.] AO NEVER
CHECKED IF [redacted] LIVED AT THE LOCATION.”

F.

From the Kings County DAO: “SGT. CAMPBELL
O BSE R V E D D E F EN D A N T IN T H E A B O V E
LOCATION, A NEW YORK CITY HOUSING
AUTHORITY BUILDING. DEFENDANT DID NOT
RESPOND WHEN ASKED IF DEFENDANT LIVES IN
THE BUILDING AND WHETHER DEFENDANT WAS
VISITING SOMEONE IN THE LOCATION (SEE
CRIMINAL TRESPASS FACT SHEET).”

G.

From the Bronx County DAO: “Arresting Officer observed
the defendant enter and exit the lobby of 1720 WATSON
AVENUE. Arresting Officer asked defendant what was his
purpose inside of said building to which defendant stated in
sum and substance HE WAS HERE TO VISIT [redacted]
IN [redacted]. Arresting Officer arrested defendant and
defendant was charged with the criminal offense of
Criminal Trespass. However, Arresting Officer failed to
ask defendant [redacted] what are you doing in the building
or what is your purpose in the building; do you know
anyone in the building; if so what is the person’s name and
apartment number. [redacted] Arresting Officer failed to
verify with a superintendent or review the tenant roster to
ensure that no one by the name provided lives in said
apartment. [redacted] the People are dismissing the
8

charges.”
III.

APPLICABLE LAW
“Under the Federal Rules of Evidence, relevant evidence — that is,

evidence that has ‘any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable’ is
‘generally admissible.’”21 This presumption of admissibility, however, “is subject
to many exceptions.”22 One exception is for hearsay:
The Federal Rules of Evidence define hearsay as a
declarant’s out-of-court statement ‘offer[ed] in evidence to prove
the truth of the matter asserted in the statement.’ Fed. R. Evid.
801(c). Hearsay is admissible only if it falls within an enumerated
exception. Id. 802. However, ‘[i]f the significance of an offered
statement lies solely in the fact that it was made, no issue is raised
as to the truth of anything asserted, and the statement is not
hearsay.’ Id. 801(c) advisory committee’s note. Thus, a statement
offered to show its effect on the listener is not hearsay.23
Under Rule 801(d)(2)(A), an opposing party’s statement is not hearsay if the
statement is offered against the party and falls under any of five enumerated
categories, including statements “made by the party in an individual or
representative capacity.” In addition, under Rule 805, “[h]earsay within hearsay is

21

Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010) (quoting
Fed. R. Evid. 401, 402).
22

Id.

23

United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013).
9

not excluded by the rule against hearsay if each part of the combined statements
conforms with an exception to the rule.”
In general, “[t]he rules on hearsay should be read to exclude
unreliable hearsay but to admit reliable hearsay. Such reliable hearsay has, of
course, the effect of promoting the truth-seeking function of a . . . trial and,
therefore, ought to be presented to the finders of facts.”24 Two enumerated
exceptions to the rule against hearsay are particularly relevant in this case. First,
under Rule 803(6), which is sometimes referred to as the “business records hearsay
exception,”25 a record of a regularly conducted activity is not excluded by the rule
against hearsay if:
(A) the record was made at or near the time by — or from
information transmitted by — someone with knowledge;
(B) the record was kept in the course of a regularly conducted
activity of a business, organization, occupation, or calling,
whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification that
complies with Rule 902(11) or (12) or with a statute permitting
certification; and
(E) neither the source of information nor the method or
circumstances of preparation indicate a lack of trustworthiness.
24

United States v. Carneglia, 256 F.R.D. 384, 392 (E.D.N.Y. 2009)
(Weinstein, J.) (citing In re Drake, 786 F. Supp. 229, 234–35 (E.D.N.Y. 1992))
(quotations and alterations omitted).
25

Id. at 391.
10

“Rule 803(6) favors the admission of evidence rather than its exclusion if it has
any probative value at all.”26
Second, under Rule 803(8), the “public records exception,” a record or
statement of a public office is not excluded by the rule against hearsay if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but
not including, in a criminal case, a matter observed by
law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal
case, factual findings from a legally authorized
investigation; and
(B) neither the source of information nor other circumstances
indicate a lack of trustworthiness.
Beyond the formal requirements in Rules 803(6) and 803(8)(A)(iii), courts have
interpreted the regularly kept records exception and the public records exception as
addressing different types of documents. On the one hand, the standard example of
a public record containing factual findings from a legally authorized investigation
under Rule 803(8)(A)(iii) is an in-depth investigative report.27 On the other hand,
26

Id. (citing United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000)
(upholding district court’s admission of cash advance receipt) (quotation marks
omitted)).
27

See generally 5 JOSEPH M. M CL AUGHLIN, W EINSTEIN’S F EDERAL
E VIDENCE § 803.10 (2d ed. 2012) (collecting cases regarding Rule 803(8)); id.
§ 803.10[1] n.5 (citing, as examples of admissible factual findings from a legally
authorized investigation, Davignon v. Hodgson, 524 F.3d 91, 112–13 (1st Cir.
2008) (state labor commission’s decision regarding alleged labor violations by
11

the standard example of a record of a regularly conducted activity under Rule
803(6) is a brief record of regularly recorded information, such as a note in a memo
book or ledger, or data in an inventory.28
In addition, “[s]hould the court find that a hearsay statement is
admissible under an exception, it must still perform the balancing test applicable to
all relevant evidence under Rule 403. ‘[E]vidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.’”29

sheriff); Goodman v. Pennsylvania Turnpike Comm’n, 293 F.3d 655, 669 n.10 (3d
Cir. 2002) (legislative budget and finance committee report); Hill v. Marshall, 962
F.2d 1209, 1215 n.2 (6th Cir. 1992) (report by prison inspection committee);
Gilbrook v. City of Westminster, 177 F.3d 839, 858–59 (9th Cir. 1999) (finance
review committee report with recommendations)). By contrast, the Fourth Circuit
held raw interview transcripts to be inadmissible under the public records
exception, “since they are not findings resulting from any type of evaluative
process whatsoever.” United States v. D’Anjou, 16 F.3d 604, 610 (4th Cir. 1994).
28

See generally 5 W EINSTEIN’S F EDERAL E VIDENCE § 803.08 (collecting
cases regarding Rule 803(6)); id. § 803.08[2] n.5 (citing United States v. Loney,
959 F.2d 1332, 1340–41 (5th Cir. 1992) (airline account data); Radloff v. City of
Oelwein, Iowa, 380 F.3d 344, 349 (8th Cir. 2004) (police activity log); United
States v. Ryland, 806 F.2d 941, 942 (9th Cir. 1986) (ledgers containing entries by
drug organization); United States v. Huber, 772 F.2d 585, 591 n.4 (9th Cir. 1985)
(inventory of stolen firearms)); id. § 803.08[5] n.28 (citing Malek v. Federal Ins.
Co., 994 F.2d 49, 53 (2d Cir. 1993) (social worker’s case notes); United States v.
Console, 13 F.3d 641, 656–58 (3d Cir. 1993) (accident book)).
29

Carneglia, 256 F.R.D. at 392 (quoting Fed. R. Evid. 403).
12

Finally, neither expert nor lay witnesses may “‘present testimony in
the form of legal conclusions.’”30 The risk of such testimony is twofold.31 On the
one hand, if the testimony contains a legal conclusion related to the outcome of the
case, the testimony may usurp the role of the jury: “Such testimony ‘undertakes to
tell the jury what result to reach, and thus attempts to substitute the [witness’s]
judgment for the jury’s.’”32 On the other hand, if the testimony contains a
statement of what the law is, the testimony may usurp the role of the judge:
“Whereas an expert may be uniquely qualified by experience to assist the trier of
fact, he is not qualified to compete with the judge in the function of instructing the
jury.”33 The Federal Rules of Evidence do not explicitly require the exclusion of
testimony expressing legal conclusions. Rather, the general need for exclusion is

30

Cameron, 598 F.3d at 62 & n.5 (quoting United States v. Articles of
Banned Hazardous Substances Consisting of an Undetermined Number of Cans of
Rainbow Foam Paint, 34 F.3d 91, 96 (2d Cir. 1994)). “The cases laying out this
rule have focused on expert witnesses. But the impropriety of allowing a lay
witness to testify in the form of a legal conclusion is all the clearer.” Id. at 62 n.5.
In addition, “‘a [lay] witness’ testimony must be scrutinized under the rules
regulating expert opinion to the extent that the witness is providing testimony
based on scientific, technical, or other specialized knowledge.’” Id. (quoting Fed.
R. Evid. 701 Advisory Committee Note (2000)).
31

See Hygh v. Jacobs, 961 F.2d 359, 363–64 (2d Cir. 1992).

32

Cameron, 598 F.3d at 62 (quoting Nimely v. City of New York, 414
F.3d 381, 397 (2d Cir. 2005)).
33

Hygh, 961 F.2d at 364.
13

implied by Rule 701, which defines the appropriate scope of opinion testimony by
lay witnesses; Rule 702, which does the same for expert testimony; the advisory
committee’s note to Rule 704, which clarifies Rule 704’s abolition of the common
law exclusion of testimony embracing “an ultimate issue to be decided by the trier
of fact”; and the general balancing test under Rule 403.34
IV.

DISCUSSION
A.

Levels of Hearsay
Whether the DP forms at issue in this Opinion constitute inadmissible

hearsay depends on the details of each form’s preparation, the contents of its
narrative, and the purposes for which plaintiffs intend to use it. In light of the
parties’ submissions, including the sample DP forms submitted by plaintiffs,35 I
make the following findings. First, DP forms are prepared either by the ADA
herself or by a DAO employee, based on the ADA’s stated explanation for
declining to prosecute, including a brief summary of the arrest. Second, the ADA’s
decision to decline prosecution is based on information provided by the arresting
officer, typically through an interview, and sometimes through documents. Third,

34

See id. at 363–64.

35

See Exs. A–G to Brooker Decl.
14

supervising ADAs have reviewed and endorsed the contents of each DP form.36
Thus, at least some of the DP forms that plaintiffs wish to introduce
contain triple hearsay: an out-of-court written statement by one declarant (the
DAO employee) summarizing out-of-court statements by another declarant (the
ADA) summarizing out-of-court statements by a third declarant (the arresting
officer). In order for the DP forms to be admissible as evidence that trespass stops
and arrests took place as described in the narratives, the DAO employee’s writing,
the ADA’s summary, and the arresting officer’s statements must each conform
with an exception to the rule against hearsay.37
B.

Arresting Officer’s Statements

36

For a summary of the ways in which DP forms are prepared, see supra

Part II.
37

See Fed. R. Evid. 805. Although plaintiffs make no explicit statement
on this issue, I assume that plaintiffs do not seek to introduce for the truth of the
matter asserted any statements within the arrest narratives made by arrestees or
witnesses. For example, one narrative includes the following: “When the arresting
officer stopped [the suspect] and asked him why he was inside said building, [the
suspect] responded in substance, ‘I was there to see [redacted].’” See Ex. C to
Brooker Decl. It is irrelevant to plaintiffs’ claim whether the arrestee in this
narrative was in fact there to see the named person: only what the officer knew or
should have known at the time is relevant to the inquiry into probable cause. Thus,
I assume that plaintiffs offer statements such as the arrestee’s statement here solely
for their effect on the arresting officer. Because “a statement offered to show its
effect on the listener is not hearsay,” Dupree, 706 F.3d at 136 (citing Fed. R. Evid.
801(c) Advisory Committee Note), statements by arrestees and witnesses in the DP
form narratives are not hearsay, and are admissible.
15

With regard to the arresting officer’s statements to the ADA, Rule
801(d)(2) provides an exception to the rule against hearsay for statements made by
an opposing party and offered against that party. Because plaintiffs offer the DP
forms against the City, and the arresting officers providing information to the
ADAs are acting within the scope of their employment by the City, the arresting
officers’ statements are admissible as party-opponent admissions under Rule
801(d)(2).
C.

DAO Employee’s Writing and ADA’s Summary
If a DP form has been prepared not by the ADA who made the

declination decision but by another DAO employee, then the DAO employee’s
written record of the ADA’s statements is double hearsay, because both the DAO
employee and the ADA are out-of-court declarants. Yet even in that scenario, the
double hearsay is admissible under a single rule — Rule 803(6), which provides an
exception to the rule against hearsay for records of a regularly conducted activity.38
38

Plaintiffs argue for the admissibility of the DP forms based on the
public records exception under Rule 803(8)(A)(iii), the residual hearsay exception
under Rule 807, or, in the alternative, the regularly kept records exception under
Rule 803(6). See Pl. Letter at 3, 6, 7 n.7. This Opinion analyzes the admissibility
of the arrest narratives on the DP forms based on Rule 803(6) rather than Rule
803(8)(A)(iii), because the latter exception is more appropriate for lengthier reports
based on more thorough investigations. For examples of such reports, see the note
above collecting cases from 5 W EINSTEIN’S F EDERAL E VIDENCE § 803.10[1] n.5.
By contrast, the arrest narratives on the DP forms are very brief and almost purely
factual, like many of the other brief records commonly admitted under Rule
16

First, the DAO employee’s writing is a record of an event: the ADA’s interview
with the arresting officer. The record was made shortly after the interview “from
information transmitted by” the ADA, who is “someone with knowledge” of the
interview.39 Second, the ADA’s interview with the arresting officer is part of the
regularly conducted DAO procedure for determining whether to proceed with a
prosecution. Third, the DAO employee’s preparation of a written record of the
ADA’s decision to decline prosecution is also a regular part of that procedure.
Fourth, these conditions were shown by representations made to the Court by
several ADAs, as described earlier.40

803(6). See generally 5 W EINSTEIN’S F EDERAL E VIDENCE § 803.08 (collecting
cases).
39

Fed. R. Evid. 803(6)(A).

40

Rule 803(6)(D) requires “the testimony of the custodian or another
qualified witness.” (Emphasis added.) Plaintiffs have offered to provide
“testimony from a qualified witness at the DAOs that the DP Forms: (1) were
‘made at or near the time by — or from information transmitted by — someone
with knowledge,’ (ii) were ‘kept in the course of a regularly conducted activity,’
and (iii) it was, and continues to be, the regular practice of the DAOs to create DP
Forms.” Pl. Letter at 7 n.7 (quoting Fed. R. Evid. 803(6)). However, for the
purpose of plaintiffs’ class certification motion, these propositions have been
adequately established by the statements of ADAs to this Court, as summarized in
Part II. See 5 W EINSTEIN’S F EDERAL E VIDENCE § 803.08[8][c] (collecting cases
holding that non-testimonial forms of evidence, such as affidavits and party
admissions, can lay the foundation required by Rule 803(6)(D)). I assume that
prior to the admission of the DP forms at trial, one or both parties will offer sworn
testimony from qualified DAO witnesses regarding how DP forms are prepared, in
order to establish or contest the credibility of the forms and the weight to be given
17

Fifth, and most importantly, neither the source of the arrest narratives
in the DP forms, nor the method or circumstances of those narratives’ preparation,
indicate a lack of trustworthiness. While ADA Hines stated that the New York
County DAO employees who input the DP form narratives “[o]nce in a while . . .
may cite a reason that is not an accurate reason or an incomplete reason,”41 this
statement was offered in the context of the New York County DAO’s arguments
against further discovery of DP forms. There is no intrinsic evidence of significant
inaccuracy in any of the sample DP forms provided by plaintiffs. Uncorroborated
speculation regarding the possibility of occasional errors is not a sufficient ground
for excluding the DAO employees’ writings in their entirety.
The trustworthiness of the ADAs’ summaries of the information
provided by arresting officers is supported by several, mutually reinforcing
considerations. ADAs have expertise in interviewing arresting officers and
distilling the most relevant aspects of an arrest narrative. In addition, ADAs are
public officers. The Federal Rules of Evidence recognize, through Rule 803(8),
that records by public officers bear special circumstantial guarantees of
trustworthiness. Rule 803(8) “‘is based upon the assumption that public officers

to them.
41

11/2/11 Tr. at 4.
18

will perform their duties, that they lack motive to falsify, and that public inspection
to which many such records are subject will disclose inaccuracies.’”42 While DP
forms are not generally available for public inspection, they are communicated to
the police department, which would have a strong incentive to expose and correct
any regularly occurring errors. It can be assumed that an arresting officer
articulates to an ADA the strongest basis for an arrest, and an ADA includes this
information in the summary of the arrest.
In addition, the assumption that ADAs will perform their duties
competently and with integrity is especially strong. The legitimacy and efficient
functioning of the criminal justice system depends on the assumption that DAO
personnel, and particularly ADAs, display diligence and honesty even in aspects of
their work that are protected from public scrutiny. In light of the central
importance of trustworthiness and reliability to the admissibility of hearsay
evidence, it is worth emphasizing that DP forms are produced solely by
prosecutors’ offices, relying on information from police officers. The forms are
the sole record of a weighty decision, whether the prosecutor’s office “acting on
behalf of all the people” will bring to bear what Chief Justice John Roberts recently
referred to as “the sword of justice,” used to vindicate the rights of the people
42

Bridgeway Corp., 201 F.3d at 143 (quoting 31 M ICHAEL H. G RAHAM,
F EDERAL P RACTICE AND P ROCEDURE § 6759, at 663–64 (Interim ed. 1992)).
19

against those who violate the criminal laws.43 If the City’s argument is not only
that the DAO employee preparing the DP form may occasionally make an error,
but that the ADA’s summaries of officer statements are themselves not reliable,
such an argument would imply a challenge to the reliability of the DAOs’
procedures. I am not persuaded that such a challenge has merit. In terms of the
four classic hearsay risks,44 there is no basis for concluding that ADAs are
insincere in expressing their factual findings. Given the brief interval between an
ADA receiving information from an officer and expressing her factual findings, the
risk of faulty memory is likewise negligible. ADAs’ professional expertise in
summarizing the statements of police officers similarly mitigates any risk of faulty
perception or narration.
Notably, even the City acknowledges that the narratives on the DP

43

See Robertson v. U.S. ex rel. Watson, 560 U.S. 272, 130 (2010)
(Roberts, J., dissenting).
44

See Schering Corp. v. Pfizer Inc., 189 F.3d 218, 232–33 (2d Cir.
1999) (Sotomayor, J.) (listing classic hearsay risks of “(1) insincerity, (2) faulty
perception, (3) faulty memory and (4) faulty narration”); id. at 231 (citing Headley
v. Tilghman, 53 F.3d 472, 477 (2d Cir. 1995) (referring to classic hearsay “risks of
insincerity, distorted perception, imperfect memory, and ambiguity of utterance”);
Edmund M. Morgan, Hearsay Dangers and Application of the Hearsay Concept,
62 H ARV. L. R EV. 177, 185 (1948) (identifying these classic hearsay risks)).
20

forms “merely summarize information at hand,”45 rather than offering complicated
analysis or evaluation that might increase the likelihood of errors. There is also no
evidence that ADAs engage in credibility determinations regarding officers’
statements. A review of the sample DP forms submitted by plaintiffs suggests, to
the contrary, that the ADAs accept the officers’ representations without
reservation, and base the declination decision on those representations.
Finally, the Second Circuit has deemed analogous documents to be
admissible in the past. In Malek v. Federal Insurance Company, the Second
Circuit ruled that a district court abused its discretion in not admitting a social
worker’s case notes under the regularly kept records exception.46 Just as the DAOs
regularly prepare DP forms in the course of their work, the case notes in Malek

45

City Letter at 2. One of plaintiffs’ sample DP forms contains a
statement that goes beyond a mere summary of the information provided by the
officer. See Ex. B to Brooker Decl. (“Accordingly, . . . did not have prior notice
that being on the roof was unlawful . . . .”). But presumably the social worker’s
case notes in Malek, 994 F.2d at 53, discussed below, contained similarly
evaluative statements. Because the Second Circuit ruled in Malek that the district
court should have admitted the social worker’s case notes under the regularly kept
records exception, the ADAs’ evaluative statements in the DP forms are admissible
as well. I also note that even if these statements were not admissible under the
regularly kept records exception, they would likely fulfill the five requirements for
admissibility under the residual hearsay exception. See Schering Corp., 189 F.3d
at 231.
46

See Malek, 994 F.2d at 53, 55.
21

were “records kept by [a public entity] in the regular course of business.”47 Just as
the DP forms are created shortly after the ADA’s interview of the arresting officer,
the case notes “were made close to the time of the events they recorded.”48 Based
on the Second Circuit’s description of the social worker’s case notes, the only
relevant difference between the notes and DP forms is that the former were
prepared singlehandedly by the social worker, while the latter are typed by a DAO
employee based on an ADA’s findings and then approved by a supervising ADA.49
However, numerous cases have concluded, in line with the language of Rule
803(6)(A), that “the person making the [business record] need not have first-hand
knowledge if the information has been transmitted by someone with knowledge.”50
D.

ADA’s Decision to Decline Prosecution

Apart from any hearsay concerns, the City argues that the DP forms
must be excluded because “an ADA’s assessment of probable cause and[/]or
reasonable suspicion is an inadmissible legal conclusion pursuant to Cameron v.

47

Id.

48

Id.

49

See id.

50

5 W EINSTEIN’S F EDERAL E VIDENCE § 803.08[4] & n.25 (collecting

cases).
22

City of New York.”51 In Cameron, mother and daughter arrestees brought state law
and section 1983 claims against two arresting officers based on false arrest and
malicious prosecution, as well as claims against the City based on respondeat
superior liability and supervisory liability under Monell.52 After a week-long trial,
a jury found for the arresting officers and the City on all counts. The Second
Circuit vacated the jury verdict and remanded for a new trial:
[The] verdict cannot stand . . . because the jury was exposed to a
significant amount of erroneously admitted and highly prejudicial
testimony. Two Assistant District Attorneys (“ADAs”) and a
police lieutenant were allowed to give their opinions . . . on
whether probable cause existed to arrest or charge [the arrestees]
. . . . The admission of these statements violated bedrock
principles of evidence law that prohibit witnesses . . . from
testifying in the form of legal conclusions . . . .53
As noted earlier, “witnesses may not ‘present testimony in the form of
legal conclusions.’”54 “Such testimony ‘undertakes to tell the jury what result to
reach, and thus attempts to substitute the [witness’s] judgment for the jury’s.’”55
“‘[T]he issue of whether or not probable cause to arrest exists is a legal
51

City Letter at 3 (citing Cameron, 598 F.3d at 67).

52

See Cameron, 598 F.3d at 54 (citing Monell v. Department of Soc.
Servs., 436 U.S. 658 (1978)).
53

Id.

54

Id. at 62 (quoting Rainbow Foam Paint, 34 F.3d at 96).

55

Id. (quoting Nimely, 414 F.3d at 397).
23

determination that is not properly the subject of expert opinion testimony.’”56
After rejecting the defendants’ novel theory that the prosecutors’ opinions as to
probable cause were admissible to address plaintiffs’ malicious prosecution claims,
the Second Circuit concluded in Cameron that “prosecutors’ opinions as to
probable cause . . . are irrelevant in virtually all cases involving claims of
malicious prosecution.”57 In addition, the Second Circuit noted that prosecutors’
testimony is “subject to the general balancing rule of Rule 403, which provides that
‘evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .’”58
In this case, while the DAOs have identified as work product and
redacted the portions of the DP forms stating the specific reasons for the
declinations,59 it is clear that plaintiffs intend to introduce the forms not only for
their factual arrest narratives, but also for the fact that the DAOs chose not to
prosecute the arrests described on the forms.60 Based on my review of the sample

56

Id. (quoting Rizzo v. Edison Inc., 419 F. Supp. 2d 338, 348 (W.D.N.Y.
2005), aff’d, 172 F. App’x 391 (2d Cir. 2006) (summary order)).
57

Id. at 65.

58

Id. at 62.

59

See Exs. A–G to Brooker Decl.; 2/17/12 Tr. at 40 (work product).

60

See 11/2/11 Tr. at 28–29; 2/17/12 Tr. at 44.
24

forms, a likely inference to be drawn from many of the forms is that the DAO
declined to prosecute because of insufficient evidence.61 Thus, the DP forms at the
very least imply legal conclusions.
On the other hand, the jury will decide what those legal conclusions
are. Unlike in Cameron, none of the seven forms submitted to the Court state that
an ADA found a lack of probable cause for an arrest.62 To the extent that the
decision to decline prosecution is not a legal conclusion at all, but rather a
procedural act that can be taken on the basis of any number of legal conclusions
and non-legal considerations, appropriately admitted DP forms will not necessarily
“‘tell the jury what result to reach,’” or substitute an ADA’s judgment for the
jury’s.63 Because the jury will be free to draw its own inferences based on the

61

Cf. 2/17/12 Tr. at 40–41 (noting based on review of unredacted forms
that, in fact, “insufficient evidence” is a common reason for declination).
62

See Exs. A–G to Brooker Decl. If other DP forms that plaintiffs wish
to introduce state conclusions regarding reasonable suspicion or probable cause —
despite the DAOs’ redactions of their work product — this language must be
redacted before the form will be admissible.
63

Cameron, 598 F.3d at 54 (quoting Nimely, 414 F.3d at 397); Quinn v.
City of New York, No. 99 Civ. 7068, 2003 WL 1090205, at *4 (E.D.N.Y. Mar. 12,
2003) (Weinstein, J.) (“A prosecutor’s declination provides no indication that
plaintiff’s arrest was without probable cause.”). In addition, there is no risk that
admission of the DP forms will usurp the role of the judge in instructing the jury,
because the DP forms neither state nor imply a statement of a legal standard. Cf.
Hygh, 961 F.2d at 363–64 (noting that expert testimony that expresses a legal
conclusion must be excluded in part because it communicates a legal standard to
25

narratives contained in the DP forms and the fact that prosecution was declined, the
risk of prejudice, confusion, or misleading the jury is less than in Cameron.
Nevertheless, because the legal inference to be drawn from the DAO’s decision to
decline prosecution is often fairly obvious based on the information on the DP
forms, I will address the City’s objection as though the forms contained an ADA’s
legal conclusions.
If plaintiffs in this case were seeking to introduce a DP form resulting
from the arrest of a named plaintiff in order to show that the arrest lacked probable
cause, the DP form would be inadmissible. The same would hold true for a DP
form related to any other stop or arrest for which plaintiffs offered the testimony of
individual arrestees, witnesses, or officers. But plaintiffs do not seek to use the DP
forms to buttress testimony concerning the justification for a stop or arrest. Rather,
plaintiffs seek to use the DP forms as a substitute for testimony, where offering
testimony as to every class member, or even as to every stop described in a DP
form,64 is simply not feasible.

the jury).
64

As noted above in Part II, plaintiffs have selected, out of the three
hundred and six forms reflecting NYCHA trespass arrests, several dozen forms that
are particularly relevant to their claims. I note that plaintiffs’ selective use of the
forms is unproblematic because plaintiffs do not seek to introduce these forms as a
random or representative sample of all the declined prosecutions based on NYCHA
trespass arrests. Rather, plaintiffs presumably seek only to establish that the arrests
26

Unlike Cameron, this case is a putative class action, and one of the
central issues in the case will be whether the NYPD has an unconstitutional
practice of making unjustified NYCHA trespass stops and arrests. There may be
few reliable sources of information regarding this issue.65 For example, if,
hypothetically, the NYPD conducts numerous unconstitutional trespass stops and
arrests in and around NYCHA buildings, as plaintiffs allege; and if — again,
hypothetically — the NYPD does not have reliable internal procedures for
identifying and tracking unjustified stops and arrests; then the DP forms selected
by plaintiffs might be among the only admissible evidence concerning the
frequency or pattern of constitutional violations. To exclude the DP forms, in this
hypothetical scenario, might reward the City for being indifferent to the tracking of
constitutional violations, and could contribute to a widespread practice of
constitutional violations being effectively immunized from judicial review.
No investigator attempting to determine the frequency of unjustified

described in the forms took place as described. In addition, to the extent that
plaintiffs’ selected forms are admissible, the City is welcome to introduce its own
selection of DP forms, provided that doing so would satisfy the requirements of
Rules 401 and 403.
65

The Second Circuit has recognized the importance of considering
whether substitute evidence is available. See, e.g., United States v. Durrani, 835
F.2d 410, 424–26 (2d Cir. 1987) (noting that exclusion of excerpts from report into
Iran-Contra affair “was perhaps ill-advised, given the extremely sparse evidence
otherwise available to defendant”).
27

stops and arrests would ignore the product of an existing, highly trustworthy
system whose purpose is in part to identify unjustified stops and arrests. The
DAOs’ declination procedures are such a system. To entirely exclude the system’s
results — rather than admitting those results and subjecting them to vigorous
challenge and rebuttal — would be to make the perfect the enemy of the good,
contravening the principle that “‘[w]hen the choice is between evidence which is
less than best and no evidence at all, only clear folly would dictate an
across-the-board policy of doing without.’”66 Such an outcome would hinder
rather than help “‘the truth-seeking function of the trial process,’”67 and run
contrary to the evidentiary policies and principles embodied in Rules 403, 701,
702, and the advisory committee’s note to Rule 704.68
Based on the significant differences between the evidentiary
circumstances in Cameron and in this case, the probative value and lack of
practical substitutes for the evidence contained in the DP forms outweighs the risk

66

Morgan v. Foretich, 846 F.2d 941, 943 (4th Cir. 1988) (quoting Fed.
R. Evid. art. VIII Advisory Committee Note).
67

Ricciuti v. New York City Transit Auth., 124 F.3d 123, 130 (2d Cir.
1997) (quoting United States v. Agurs, 427 U.S. 97, 104 (1976)).
68

See Hygh, 961 F.2d at 363–64 (citing these sources as basis for the
exclusion of testimony expressing legal conclusions).
28

of prejudice, confusion, or misleading the jury.69 The DP forms are admissible as
evidence of the NYPD’s trespass enforcement practices in and around NYCHA
buildings. Both parties, of course, may subpoena and question the ADAs and other
DAO personnel involved in the creation of the DP forms. Either party may present
evidence at trial concerning the strengths and weaknesses of the DP forms,
including from ADAs and other DAO personnel involved in the creation of the
forms. The City may attempt, through documentary and testimonial evidence, to
rebut the accuracy of any DP form introduced by plaintiffs. Plaintiffs, on the other
hand, must choose between introducing a DP form as evidence of an arrest and
offering testimony about that arrest.70
V.

CONCLUSION
For the foregoing reasons, the DP forms are admissible as evidence of

the NYPD’s trespass enforcement practices in and around NYCHA buildings.
Pursuant to the City’s request, plaintiffs are ordered to identify the specific DP
forms summarized in plaintiffs’ submission.71

69

See Fed. R. Evid. 403.

70

Wherever plaintiffs offer testimony about an arrest, the admission of
the DP form loses its justification.
71

See City Letter at 2 n.2 (citing Fed. R. Evid. 1006 and related cases).
29

Dated:

New York, New York
May 24,2013

30

Appearances
For Plaintiffs:
Katharine E.G. Brooker, Esq.
Matthew J. Moses, Esq.
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
[phone]

Steven Banks, Esq.
William D. Gibney, Esq.
Steven Wasserman, Esq.
Nancy Rosenbloom, Esq.
Marlen S. Bodden, Esq.
Legal Aid Society of New York
199 Water Street
New York, New York 10038
[phone]

Debo P. Adegbile, Esq.
Christina Swarns, Esq.
Johanna B. Steinberg, Esq.
Jin Hee Lee, Esq.
Johnathan Smith, Esq.
Ria Tabacco, Esq.
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 16 th Floor
New York, New York 10013
[phone]
For Defendant City of New York:

For Defendant NYCHA:

Brenda E. Cooke
Judson Vickers
Wesley Bauman
Lisa Richardson
George Soterakis
Pernell Telfort
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
[phone]

Steven Jay Rappaport, Esq.
New York City Housing Authority
250 Broadway, 9th Floor
New York, New York 10007
[phone]

31