Hagan v. Beard et al

Filing 199

MEMORANDUM OPINION AND ORDER denying 147 MOTION in Limine to Exclude Inadmissible Hearsay filed by Brant, William Warner, Robert Eger, Chris Chambers, Barry Jones, Nathan Goss, Houser, Mark Spieles, Bankes, Andy Hubert. Signed by Magistrate Judge Martin C. Carlson on May 30, 2013. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAMONT HAGAN,
Plaintiff
v.
NATHAN GOSS, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

Civil No. 1:10-CV-883
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

FACTUAL BACKGROUND

This is a civil rights action brought by the plaintiff, Damont Hagan, a state
prisoner formerly housed in the Special Management Unit (SMU) of the State
Correctional Institution at Camp Hill (SCI-Camp Hill). In his complaint, the plaintiff
brings claims under 42 U.S.C. §§ 1983 and 1985(2), against several present and
former SCI-Camp Hill SMU staff, alleging: (1) that the plaintiff was assaulted on
August 1, 2008, Amended Complaint ¶¶1-2, 19; and (2) that the defendants conspired
against the plaintiff to intimidate him to prevent him from testifying in violation of
42 U.S.C. §1985(2), Amended Complaint ¶¶6-8, 23.
Presently before the court is a motion in limine, which relates to Hagan’s
proffered proof in support of his allegation that the defendants conspired against the

1

plaintiff to intimidate him to prevent him from testifying in another federal civil rights
lawsuit, in violation of 42 U.S.C. §1985(2). Specifically, Hagan has indicated that
he wishes to call two witnesses, Stephen Greecher, an attorney who litigated the prior
case in which Hagan alleges that, as a putative witness, he was intimidated by prison
staff, and as a result testified falsely at trial. Hagan also indicates that he wishes to
call Brett Grote, a person that Hagan was in communication with at the time that he
was a putative witness in this prior civil rights lawsuit. In both instances, we
understand that the purpose of the testimony of these witnesses would be to confirm
that Hagan had made contemporaneous complaints that he was being subjected to
intimidation at the time he was scheduled to testify as a witness in another inmate
federal civil rights lawsuit.
The defendants have filed a motion in limine, which characterizes this
proffered testimony as inadmissible hearsay, and seeks a pretrial order excluding this
testimony from the trial of this case. (Docs. 147 and 148.) For the reasons set forth
below, we will deny this motion in limine, and defer any ruling on the admissibility
of this testimony pending the development of the proof at trial.
II.

DISCUSSION

This particular motion in limine calls upon us to examine the permutations of
the hearsay rule, and its applicability to out-of-court declarations allegedly made by
2

the plaintiff at a time when he was a putative witness in the civil right trial of another
inmate, complaining about alleged intimidation by prison staff due to his witness
status.
“Hearsay” is defined under the Federal Rules of Evidence as “a statement that:
. . . the declarant does not make while testifying at the current trial or hearing;
[which] a party offers in evidence to prove the truth of the matter asserted in the
statement.” Fed. R. Evid., Rule 801(c). As a general matter, “Hearsay is not
admissible unless any of the following provides otherwise: a federal statute; these
rules; or other rules prescribed by the Supreme Court.” Fed. R. Evid., Rule 802.
The Federal Rules of Evidence, however, are replete with exceptions to this
general principle forbidding reliance upon hearsay. See Fed. R. Evid., Rules, 801,
803, and 804. In their competing pleadings, the parties have seized upon several of
these exceptions to the hearsay rules as they debate the admissibility of these
particular out-of-court declarations. For his part, Hagan cites Rule 801(d)(2)(C) to
contend that these statements should be admitted, asserting that the statements are
“made by a person whom the party authorized to make a statement on the subject.”
Fed. R. Evid., Rule 801(d)(2)(C). This argument is unpersuasive, however, because
it fails to take into account that Rule 801(d)(2)(C), only applies to statements made
by a party-opponent. Thus, this rule is not a vehicle for admitting a party’s own prior
3

statements; rather it only allows for the admission in certain circumstances of
statements made on behalf of an opposing party in a lawsuit.
In their briefs the parties also discuss whether Rule 803(3) of the Federal Rules
of Evidence, which exempts “a statement of the declarant's then-existing state of mind
(such as motive, intent, or plan) or emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health),” Fed. R. Evid., Rule 803(3), from the reach
of the hearsay rule, and permits the introduction of this testimony. On balance, we
conclude that Rule 803(3) does not allow for the admission of these statements, since
the rule, by it terms, provides that such present sense impressions may not be used to
“prove the fact remembered or believed unless it relates to the validity or terms of the
declarant's will.” Fed. R. Evid., Rule 803(3). See also, U.S. v. Emmert, 829 F.2d
805, 809-10 (9th Cir.1987); United States v. Cohen, 631 F.2d 1223, 1225 (5th
Cir.1980); Hirsch v. Corban Corporations, Inc., 949 F.Supp. 296, 303 (E.D.Pa. 1996).
Here, Hagan is offering this evidence for proof of “the fact remembered or believed”,
i.e., the fact of claimed intimidation by prison staff. Therefore, Rule 803(3), on its
face, would not allow these statements into evidence for the purpose proposed by
Hagan. Thus, on the legal grounds expressly proffered and addressed by the parties,
we find no basis for the admission of these statements.

4

Yet, while these expressly identified and proffered rules do not provide
grounds for the introduction of these out-of-court statements by Hagan, the plaintiff’s
brief suggests another, less frequently traveled path for the introduction of this
evidence, albeit a path which must await the presentation of the evidence at trial. In
his brief, Hagan also urges the court to admit these prior statements, which he
anticipates will be consistent with his trial testimony, since “Hagan’s crdeibility will
be attacked” at trial. (Doc. 167, p. 2.) While not cited by the parties, Rule
801(d)(1)(B) of the Federal Rules of Evidence permits the admission of prior
consistent statements, like those tendered by Hagan, when a party’s credibility has
been attacked through an express or implied assertion that the party has recently
fabricated his testimony, and provides as follows:
(d) Statements That Are Not Hearsay. A statement that meets the
following conditions is not hearsay:
(1) A Declarant-Witness's Prior Statement. The declarant testifies
and is subject to cross-examination about a prior statement, and the statement:
(B) is consistent with the declarant's testimony and is
offered to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying.
Fed. R. Evid., Rule 801(d)(1)(B).
While Rule 801(d)(1)(B) may conceivably permit the introduction of this
testimony at trial, we cannot rule upon this question in a vacuum since the rule, by its

5

terms, requires that a number of conditions precedent must be met before prior
consistent statement may be introduced under Rule 801(d)(1)(B). For example,
before such statements may be admitted the declarant must: (1) testify; (2) be subject
to cross examination about the prior statement; (3) must show that the prior statement
is consistent with the party’s testimony; and (4) must show a need to present this
evidence to rebut an express or implied charge of recent fabrication or improper
influence and motive in testifying. Id. See also United States v. Casoni, 950 F.2d
893, 904 (3d Cir. 1991)(discussing Rule 801(d)(1)(B)).
Ascertaining whether these conditions are met is a task which must– and will–
await trial and the development of a full factual record.
III.

CONCLUSION

Accordingly, for the foregoing reasons, while we conclude that Rules
801(d)(2)(C) and 803(3), do not provide a basis for the admission of this evidence,
we will reserve until trial the issue of whether Rule 801(d)(1)(B), which relates to
prior consistent statements, permits the introduction of this evidence. Therefore, we
will DENY the motion in limine (Doc. 147.), without prejudice to consideration of
this issue at trial.

6

So ordered this 30th day of May 2013.

/s/Martin C. Carlson
Martin C. Carlson
U.S. Magistrate Judge

7