Shannon v. Koehler - Northern District of Iowa

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2. Cristina Navrkal’s hearsay statements Shannon asks that I bar evidence of Cristina Navrkal’s hearsay statements. Shannon anticipates, based on the defendants’ representations at the pre-trial conference, that Cristina Navrkal will be unavailable to testify at trial and that the defendants will rely on her deposition testimony. Shannon is concerned that the defendants will attempt to introduce Exhibit 1003, the Sioux City Police Department reports, which contain Navrkal’s statements; Exhibit 1007, Navrkal’s taped statement from September 13, 2006; and Exhibit 1008, Navrkal’s voluntary witness statement from September 13, 2006. Shannon argues that Navrkal’s taped statement and her voluntary witness statement are not admissible under Rule 803(5), the recorded recollection exception to the hearsay rule. Shannon argues that neither the written witness statement nor the taped statement qualify as recorded recollections because the defendants cannot show that Navrkal ever had knowledge of what occurred on September 13, 2006, and because the statements do not accurately reflect her knowledge. Shannon also asserts that the taped statement is inadmissible because it is not verbatim due to periodic breaks in the sound quality. The defendants respond that Navrkal’s taped statement and voluntary witness statement are admissible as recorded recollections under Rule 803(5). The defendants assert that Navrkal laid the foundation at her deposition for these exhibits to be admissible as recorded recollections. The defendants contend that neither party disputes that Navrkal has no present recollection of the September 13, 2006, incident. They also maintain that she made the statements while her knowledge was fresh in her mind. They argue that Navrkal confirmed at her deposition that both statements accurately reflected what she 17 (...continued) redacted version of the sentencing order, only containing the information that Shannon was convicted of “Operating While Intoxicated.” 46
knew at the time. The defendants also assert that a taped statement need not be verbatim to be admissible. Finally, the defendants contend that Navrkal’s written and taped statements are consistent in their descriptions of events, indicating that the statements did accurately reflected Navrkal’s knowledge at the time they were made. Hearsay is “a statement, other than one made by the declarant while testifying at trial, offered in evidence to prove the truth of the matter asserted.” FED. R. EVID. 801(c). Both Navrkal’s voluntary witness statement and her taped statement are out of court statements made by Navrkal, offered in evidence to prove the truth of the matter asserted. I have already ruled that Navrkal’s taped statement is hearsay not subject to any exception, 18 but I will entertain the defendants’ argument that the taped statement and the voluntary witness statement are recorded recollections. This case presents the somewhat unusual situation in which the declarant of the recorded recollection is unavailable to testify. 19 Navrkal’s unavailability does not preclude the application of 803(5), as the “availability of [the] declarant [is] immaterial” for all Rule 803 exceptions. See FED R. EVID. 803. But see Parker v. Reda, 327 F.3d 211, 215 (2d Cir. 2003) (“Evidence of recorded recollection . . . is inadmissible unless a witness, who once had knowledge of what the record contains, testifies.”). The Eighth Circuit Court of Appeals has determined that when a declarant is unavailable, a deposition may suffice to lay a foundation for a 18 I rejected the defendants’ arguments that Navrkal’s taped statement is admissible under Rules 803(2), 803(6), or 807. Memorandum Opinion And Order at 35 (docket no. 91); Memorandum Opinion And Order at 9 (docket no. 96). 19 Defendants indicate that Navrkal is not available to testify. In the parties’ final pre-trial order, the defendants state, “Ms. Navrkal is expected to testify by deposition regarding her knowledge of the incident on September 13, 2006 in her capacity as an eyewitness. Defendants do not guarantee Ms. Navrkal’s presence.” Final Pretrial Order at 3 (docket no. 115). 47
Page 1 and 2: Not To Be Published: IN THE UNITED
Page 3 and 4: Plaintiff’s Second Motion In Limi
Page 5 and 6: However, Shannon alleges that he di
Page 7 and 8: B. Procedural Background On August
Page 9 and 10: On September 20, 2010, the defendan
Page 11 and 12: neither is sufficiently qualified t
Page 13 and 14: On May 17, 2011, Shannon filed his
Page 15 and 16: elevant is not admissible.” FED.
Page 17 and 18: intoxication in case number SMSM445
Page 19 and 20: Alternatively, Shannon asserts that
Page 21 and 22: incident.” (citing Schulz v. Long
Page 23 and 24: of force was reasonable because the
Page 25 and 26: 10 (...continued) Dettman v. Krucke
Page 27 and 28: There are two primary reasons why a
Page 29 and 30: as a witness in the plaintiff’s c
Page 31 and 32: and his conviction for interference
Page 33 and 34: and (4) similar in kind and close i
Page 35 and 36: cannot use the July 2, 2005, compla
Page 37 and 38: substantially outweighed by the dan
Page 39 and 40: v. Int’l Coll. of Surgeons, 522 U
Page 41 and 42: B. Plaintiff’s Second Motion In L
Page 43 and 44: likely than most to be deterred fro
Page 45: Therefore, the defendants may only
Page 49 and 50: e ‘dealt with as the circumstance
Page 51 and 52: Navrkal admitted she was intoxicate
Page 53 and 54: “probably” reflected what she b
Page 55 and 56: ecause it relies on an incomplete a
Page 57 and 58: determine a fact in issue, a witnes
Page 59 and 60: state], testimony in the form of an
Page 61 and 62: that although officers “acted cor
Page 63 and 64: whether Stine used reliable methods
Page 65 and 66: to grant the defendants’ request
Page 67 and 68: ) Defendants’ motion to exclude o

Shannon v. Koehler - Northern District of Iowa

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