Berry v. Parodi

Background

The court held a pretrial conference on April 12, 2023, and resolved four motions in limine filed by the defendant. A motion in limine asks the court to decide before trial whether particular evidence or arguments may be presented. The caption identifies the defendant as San Jose Police Officer Lindsay Parodi. A footnote states that the defendant advised the court that she is now known as Detective Lindsay Alvarez. The order refers to her as Detective Alvarez. The plaintiff is Bryanna Berry.

Motion in Limine No. 1: Roger Clark’s Expert Testimony

Detective Alvarez moved to exclude the proposed testimony of Berry’s expert, Roger Clark. Berry agreed that Clark should not give legal opinions but argued that excluding all of his testimony would be unwarranted.

The court granted in part and denied in part this motion. Clark may not testify about what the facts are, including whether Detective Alvarez filed a false report. He also may not use specialized legal terms such as “excessive force,” “unnecessary force,” “unlawful force,” “reasonable suspicion,” or “probable cause” in a way that suggests the legal conclusions the jury should reach. He may use ordinary terms such as “reasonable” or “unreasonable” only when discussing how conduct compares with relevant procedures, policies, practices, experience, or norms, rather than expressing an opinion about whether conduct met a legal standard. He may not testify that conduct was unlawful or unconstitutional.

The court granted the motion concerning credibility opinions. Clark may explain the assumptions or hypotheticals underlying his opinions, but he may not say which side’s account is more likely or credible. He also may not testify to his opinion that Detective Alvarez appeared immature or lacked good judgment, prudence, and verbal skills in dealing with citizens.

The court deferred ruling on the argument that Clark’s opinions were speculative. The court stated that Clark may not offer opinions unsupported by sufficient facts or expertise. Based on the materials then before it, the court identified four opinions that appeared potentially unsupported: that Detective Alvarez used profiling techniques while detaining Berry; that there was no emergency and Detective Alvarez should have awaited a supervisor; that Berry’s injuries appeared consistent with a blunt-force impact to her head; and that putting on latex gloves had a specified significance. Berry could file a supplemental opposition identifying relevant portions of Clark’s deposition by April 24, 2023.

The court also granted in part and denied in part the challenge to Clark’s qualifications and the scope of his expertise. The court denied the challenge to his qualifications because it was untimely. Clark may testify about police practices or procedures involving traffic stops and arrests to the extent his opinions and their bases were adequately disclosed during discovery. He may not testify about what the law is or requires, what the facts are, the nature or extent of Berry’s injuries, or personal beliefs not tied to procedures, policies, practices, experience, or norms of conduct.

Motion in Limine No. 2: Internal Affairs Evidence

Detective Alvarez moved to exclude evidence or references concerning the San Jose Department Internal Affairs investigation of Berry’s complaint about the November 3, 2019 incident, including the report prepared by Internal Affairs Officer Bryan Tran and the investigation’s conclusions. Berry did not oppose the motion so long as she could use witness statements contained in Tran’s report.

The court granted the motion, except that Berry may use the witness statements in evidence or for impeachment. The parties were directed to confer about whether those statements could be presented to the jury or used at trial without revealing irrelevant information about the Internal Affairs investigation. They were to notify the court promptly if they could not resolve that issue.

Motion in Limine No. 3: Other Police Incidents

Detective Alvarez moved to exclude references to police incidents occurring after the November 3, 2019 incident. Berry did not oppose the motion. The court excluded evidence of, and references to, other specific incidents of police use of excessive or deadly force that occurred after the incident at issue or were otherwise unrelated to the events or Berry’s alleged injuries, because such material was irrelevant and potentially prejudicial.

The court allowed limited questioning of prospective jurors during jury selection about whether exposure to information, including media reports, about other officer-involved incidents affected their ability to be fair and impartial. The court also allowed both sides some flexibility during closing arguments to refer generally to matters of common knowledge that were not evidence, so long as the references were not unfairly inflammatory or likely to confuse the jury.

Motion in Limine No. 4: Miranda-Related Evidence

Detective Alvarez moved to exclude evidence and argument concerning an alleged failure to give Berry a proper Miranda warning. Berry opposed the motion. According to Berry, Sergeant White began giving her a Miranda warning while she was seated in a patrol vehicle but completed the warning hours later at the hospital. During that period, Berry apparently said that she fell to her knees when she exited Ms. Jackson’s car. The order states that Detective Alvarez presumably wanted to use that statement to impeach Berry, who claimed that Detective Alvarez pushed her to the ground.

Berry did not argue that her statements were inadmissible because of the alleged Miranda problem. Instead, she argued that the alleged violation was relevant to her malicious-prosecution claim because it might have contributed to dismissal of the criminal case. Detective Alvarez argued that there was no information supporting an argument that the prosecutor dismissed the case because of an obvious Miranda violation or any particular reason.

The court did not decide this motion. It invited supplemental briefing, including relevant case law, on whether Berry could present evidence about the facts and circumstances preceding dismissal of the criminal prosecution and whether counsel could ask the jury to infer from those circumstances that the prosecution lacked merit or resulted from a malicious motive. The parties could file supplemental briefs by April 24, 2023.

Effect of the Order

This was a pretrial evidence order. It did not decide the underlying claims. Judge Virginia K. Demarchi partly granted and partly denied the first motion, granted the second motion with an exception for witness statements, excluded most of the evidence challenged in the third motion subject to stated exceptions, and deferred the fourth motion pending further briefing.