## Facts

- Theresa Berry sued Pueblo police officers Brandon Beauvais and Chad Garcia under 42 U.S.C. § 1983, alleging they failed to intervene while another officer used excessive force on her.
- The case was set for trial on claims arising from an encounter outside a convenience store in Pueblo, Colorado, on October 4, 2011.
- Anticipating that defendants would attack Berry’s credibility at trial, Berry sought to call her psychotherapist, Janice Schultz, as a fact witness.
- Berry proposed that Schultz would testify that, during a therapy session occurring within hours of the incident, Berry described the police encounter in a manner consistent with Berry’s later account.
- Defendants moved in limine to exclude Schultz’s testimony to the extent it would repeat Berry’s out-of-court statements about what happened, arguing the testimony was hearsay and improper bolstering.
- The court addressed what portions of Schultz’s testimony, if any, could be admitted and for what purposes, including whether any limiting instruction would be appropriate.

## Issues

1. Whether Schultz’s testimony recounting Berry’s post-incident statements describing the encounter was inadmissible hearsay when offered to show the events occurred as Berry described.
2. Whether any portion of Schultz’s testimony could be admitted for a non-hearsay purpose or under a hearsay rule (including the rule governing prior consistent statements), and whether limits or a jury instruction were required.

## Decision

- The court **granted in part and denied in part** defendants’ motion in limine.
- The court limited the use of Schultz’s testimony to prevent the jury from hearing Berry’s detailed out-of-court narrative through Schultz **as substantive proof** of what occurred, absent a valid evidentiary basis.
- The court allowed that some aspects of Schultz’s testimony could be admissible (for example, testimony about the fact of treatment, Schultz’s own observations of Berry during the session, and other non-hearsay matters), subject to the rules of relevance and Rule 403.
- The court left room for admissibility of certain statements only if Berry could establish an appropriate foundation at trial (including, where applicable, the requirements for admitting a prior consistent statement).
- The court invited defendants to submit a proposed “special” or limiting instruction addressing how the jury may use Schultz’s testimony.

## Legal Principles

- An out-of-court statement offered to prove the truth of what it asserts is hearsay and is inadmissible unless a federal rule provides otherwise. Fed. R. Evid. 801(c), 802.
- A treating provider may testify as a fact witness about treatment and personal observations, but repeating a patient’s account of an event is still subject to hearsay limits.
- Prior consistent statements are not automatically admissible to support a witness’s credibility; to be admitted as non-hearsay under Rule 801(d)(1)(B), the proponent must satisfy the rule’s conditions, including that the statement is offered to respond to a charge of fabrication or improper motive and fits the timing requirements of the rule.
- Even when evidence has some admissible purpose, the court may restrict its scope, exclude parts under Rule 403, and instruct the jury under Rule 105 to consider the evidence only for the allowed purpose.
- Rulings on motions in limine are case-management decisions that control the presentation of evidence at trial and may be adjusted as the trial record develops.

## Conclusion

In this pretrial evidentiary order, the court partially excluded Berry’s attempt to use her psychotherapist to repeat Berry’s earlier description of the police encounter, reasoning that much of the proposed testimony was hearsay if offered to prove what happened; however, the court permitted limited testimony about treatment and observations and contemplated careful boundaries and a possible limiting instruction to prevent improper use of the therapist’s testimony.


Berry v. Beauvais, 2015 WL 5244892 (2015)