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Defendants' Notice of Motion and Motion To Exclude Certain Statements by or About Donald Trump
Defendants' Notice of Motion and Motion To Exclude Certain Statements by or About Donald Trump
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Plaintiffs,
vs.
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Defendants.
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DEFS. MOT. IN LIMINE NO. 2 TO EXCLUDE
EVIDENCE RE: CONDUCT OF DONALD TRUMP
10-CV-0940-GPC(WVG)
Defendants Trump University, LLC and Donald J. Trump (Defendants) will and
hereby do move for the exclusion of evidence based on Federal Rules of Evidence
401 and 403.1 Defendants believe in good faith that class representative plaintiffs
Sonny Low, Joann Everett, and John Brown (Plaintiffs) intend to offer during
Phase One of the trial set to begin on November 28, 2016 evidence and argument
concerning statements by and about Mr. Trump made in the political process during
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This Motion is made on the grounds that such statements are both irrelevant
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to the issues in this case and highly prejudicial to Defendants. It is based on the
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Notice of Motion, the Memorandum of Points and Authorities thereto, the files in
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All Rule references are to the Federal Rules of Evidence unless otherwise noted.
DEFS. MOT. IN LIMINE NO. 2 TO EXCLUDE
CERTAIN STATEMENTS BY DONALD TRUMP
10-CV-0940-GPC(WVG)
to exclude from trial all evidence and argument relating to the events of the
or about Mr. Trump made or publicized while he was running for President of the
United States.
I.
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INTRODUCTION
Throughout the election process, candidates for the most powerful office in
the world are subject to an extraordinary level of scrutiny, commentary, and debate.
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Their statements and actions are headline news every day. During the current
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Presidential campaign, Mr. Trump has been the focus of perhaps unprecedented
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media coverage and public interest. His politics, policies, opinions, and views have
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been reported virtually every day in every form of media over the past year. One
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hundred million people watched Mr. Trump in the Presidential debates. The media
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have reported on every aspect of Mr. Trumps life from his long background and
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history in business and his work in television, to his wife, daughters and sons,
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Before trial begins in this case, prospective members of the jury will have the
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opportunity to cast their vote for President. It is in the ballot box where they are
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free to judge Mr. Trump based on all this and more. But it is in the jury box where
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they must judge him and this case only on evidence and argument relevant to the
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issues at hand. Plaintiffs have no right to cross those lines in an attempt to inflame
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and prejudice the jury, and it is the Courts duty to protect the integrity of the
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judicial process and defendants right to a fair trial. That can only happen if
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extraneous, irrelevant, and prejudicial matters are excluded from the courtroom.
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II.
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Campaign speeches
Statements at debates
Campaign advertisements
Tweets
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Tax issues
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Other litigation
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III.
ARGUMENT
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campaign, including statements by and about Mr. Trump, have no relevance to the
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issues before the jury and are otherwise inadmissible. Their intrusion into the trial
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to defendants, confusion of issues, and waste of time. The Court should exclude all
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such matters.
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A.
Under the Federal Rules, evidence is relevant only if it tends to make a fact
more or less probable, and that fact is of consequence in determining the action.
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Rule 401. Neither criterion exists here. Statements by or about Mr. Trump made or
publicized during the campaign or otherwise outside of the adjudicative process are
not probative on any issue in this case and are inadmissible as evidence. See id.
figures as lacking probative value. For example, in Apple v. Samsung, No. C-11-
01846 LHK, 2012 U.S. Dist. LEXIS 99945 (N.D. Cal. July 18, 2012), in a case
involving competing patent claims, the court excluded evidence and argument
about personal and professional information about Apple founder Steve Jobs,
noting: I dont see how this is relevant. Under a 403 analysis, I dont think it
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comes in. I really dont think this is a trial about Steve Jobs either way. Kirman
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Decl., Ex. 84 at 134:7-11 (emphasis added).2 Similarly, in The Saturday Team, Inc.
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v. Thien Thanh Thi Nguyen, No. 2:07-cv-01794, (C.D. Cal. June 26, 2008), the
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Court held that evidence and argument relating to the defendants controversial
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past, including her sexually suggestive photographs in mens magazines and reality
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TV shows, were not relevant to the specific claims at issue. Ex. 82 at 4. The
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Court further held that, to the extent that Defendants public image is relevant,
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Plaintiffs can establish that she was famous without, for example, showing the jury
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Here, the evidence and argument subject to this motion have no probative
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before Mr. Trumps candidacy for President. Such evidence and argument should
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be excluded.
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B.
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404(a)(1); see also United States v. Lynch, 437 F.3d 902, 913915 (9th Cir. 2006).
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accordance with the character. Rule 404(b)(1); United States v. Curtin, 489 F.3d
or about Mr. Trump or other matters publicized during his campaign for the
Presidency. See Curtin, 489 F.3d at 957958; United States v. Arambula-Ruiz, 987
F.2d 599, 602603, (9th Cir. 1993). Courts are required to ensure that the purpose
for which the evidence is offered is more than just a sham for using it as proof of
character. See, e.g., United States v. Merriweather, 78 F.3d 1070, 10741079 (6th
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Cir. 1996) (emphasizing the need for a cautious analysis of evidence of uncharged
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misconduct).
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Cohn v. Papke, 655 F.2d 191, 194 (9th Cir. 1981) (quoting Rule 404,
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prevents the risk that the jury will punish defendants despite what the evidence in
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the case shows actually happened. Id.; see also United States v. Whittington, 26
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F.3d 456, 466 (4th Cir. 1994) (testimony that defendant had conducted her affairs
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C.
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During the pretrial conference in this case, the Court recognized the
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process:
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And we have seen that there have been some events that have
coincided with the election campaign process, and I am sensitive to the
fact that there could be events that the jury would learn about entering
the courthouse or some other way that could unduly influence them
and could prevent a fair trial from being delivered to all the parties.
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does not directly bear on the claims and defenses asserted. See, e.g. U.S. v.
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McDermott, 245 F.3d 133, 141142 (2d Cir. 2001) (reversing defendants
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conviction for criminal conspiracy on grounds that evidence that controversial and
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unflattering information about the defendant's girlfriend was prejudicial and should
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have been excluded at trial); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128,
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mens magazine and presented to the jury at trial required reversal since the
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background and character on the grounds that it is prejudicial and plainly intended
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to cast a bad light on the defendant based on prior, unrelated publicity. See, e.g.,
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Ex. 84 at 134:7-11 (excluding evidence and testimony about Mr. Jobs under Rules
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402 and 403). Courts also have excluded evidence and argument about a
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outweighs any probative value. See Lewis v. Sch. Dist. No. 70, 05-CV-776-WDS,
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2009 WL 928874, at *5 (S.D. Ill. Apr. 6, 2009) (excluding evidence and argument
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regarding any political party or political party affiliation of any litigant); Richman v.
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Burgeson, 98 C 7350, 2008 WL 2567132, at *8 (N.D. Ill. June 24, 2008) (excluding
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hot button issue of political patronage in Chicago on the grounds that any such
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evidence has a high likelihood of being unfairly prejudicial); cf. Reza v. Pearce,
806 F.3d 497, 508 (9th Cir. 2015) (in racial discrimination case, affirming decision
and confusion. The Court must exercise extreme vigilance to prevent the passions
and prejudices from a partisan political process from impairing the integrity of the
trial.
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IV.
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CONCLUSION
For the foregoing reasons, defendants respectfully request that the Court
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exclude all evidence and arguments relating to statements by or about Mr. Trump
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Respectfully submitted,
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By:
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