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Jason D. Lamm (018454)

Law Office of Jason Lamm

2501 North Seventh Street

Phoenix, Arizona 85006-1062

Tel: (602) 222-9237

Fax: (602) 222-2299

Email: jlamm@cyberlawaz.com

Attorney for Plaintiff Leslie A. Merritt, Jr.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Leslie A Merritt, Jr., a single man,

Plaintiff,

vs.

State of Arizona, et al.

Defendants.

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Case No.: CV17-4540-PHX-DGC

PLAINTIFF’S MOTION IN 

LIMINE NO. 3 RE: VOUCHING 

FOR THE CRIME LAB

Plaintiff, through undersigned counsel, moves this Court for an order in 

limine precluding the defendant from introducing argument or evidence that the 

Arizona Department of Public Safety Crime Lab has a reputation for providing 

credible ballistic identifications. On the claim of false arrest, the character of the 

DPS criminalist or the reputation of the DPS crime lab is not directly at issue. Any 

attempt by the defendant to vouch for the credibility of the DPS crime lab is 

irrelevant and unduly prejudicial under FRE 401 and 403, and inadmissible 

character evidence to prove that the DPS crime lab acted in conformity in the 

Freeway Shooting case, under FRE 404.

 Throughout discovery, various agents of the defendant have testified about

the alleged excellent reputation of the DPS crime lab. But the testimony and any 

argument about their self-assessment are simply inappropriate vouching.

Case 2:17-cv-04540-DGC Document 292 Filed 01/10/20 Page 1 of 3
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The trial issues involving the DPS crime lab and criminalists are whether they 

provided valid scientific ballistic results in the Freeway Shooting case and whether 

other DPS employees acted reasonably by relying on the crime lab's statements 

when it conflicted with other investigative material.

The plaintiff recognizes that the DPS crime lab is an accredited laboratory. To 

suggest, however, that laboratory accreditation indicates that Kalkowski’s scientific 

work is entitled to a high level of deference or credibility is inappropriate. The 

plaintiff's ballistic expert Todd Weller will explain that "forensic science is such a 

powerful and useful tool for the justice system... [and the] trier of fact need not 

weigh the credibility of a forensic science witness because the documentation, 

testing, and results can be reproduced by a second scientist”. Exhibit 1, Weller 

Report 10/5/18 at p. 5. Even the defendants’ expert, Steven Deady, conceded that 

“just because the lab is accredited, doesn’t mean that it can’t make a mistake.” 

Exhibit 2, Deposition of Deady, page 65-66:23-5.

Defense arguments to bolster the credibility of the DPS would constitute 

vouching and would improperly invade the province of the jury and should, 

therefore, be precluded.

Plaintiff asks this Court to enter the following order:

The defendant is precluded from introducing any reputation or opinion 

evidence about the DPS crime lab through lay witnesses. The defendant may elicit 

such testimony through an appropriate expert, subject to an adequate foundation 

being laid.

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DATED this 10th day of January 2020.

/s/ Jason D. Lamm

Jason D. Lamm

Attorney for Plaintiff Leslie Merritt, Jr.

CERTIFICATE OF SERVICE

I certify that on this 10th day of January 2020, I electronically transmitted the 

attached document to the Clerk’s Office using the CM/ECF system for filing and 

transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

Clerk of the Court

United States District Court, District of Arizona

Sandra Day O’Connor Courthouse

401 W. Washington St.

Phoenix, AZ 85003

Edward F. Novak, Esq.

Melissa Ho, Esq.

Jonathan G. Brinson, Esq.

Polsinelli PC

One East Washington Street, Suite 1200

Phoenix, AZ 85004

enovak@polsinelli.com; mho@polsinelli.com, jbrinson@polsinelli.com

Attorneys for Defendant State of Arizona, Heston Silbert, Christopher Kalkowski, 

Frank Milstead, Ken Hunter, Kelly M. Heape, Jennifer Pinnow, Anthony Falcone

By: /s/ Kathryn A. Miller

Kathryn A. Miller

Case 2:17-cv-04540-DGC Document 292 Filed 01/10/20 Page 3 of 3