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Gregory J. Kuykendall, Bar # 012508

Amy P. Knight, Bar # 031374

KUYKENDALL & ASSOCIATES

531 S Convent Avenue

Tucson, AZ 85701

(520) 792-8033

greg@kuykendall-law.com

amyknight@kuykendall-law.com

Attorneys for Defendant Scott Daniel Warren

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

SCOTT DANIEL WARREN,

Defendant.

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No.CR-18-00223-001-TUC-RCC(DTF)

MOTION TO PRECLUDE 

HYPOTHETICAL QUESTIONS 

ABOUT INFORMED CONSENT

Defendant Dr. Scott Warren moves this Court to preclude hypothetical questions 

about the outer limits of the concept of “informed consent.” This motion is based on Federal 

Rules of Evidence 401, 402, 403, 701, and 702, as well as the Court’s inherent authority to 

control the evidence at trial. The government may ask fact witnesses about the events in 

this case, and may ask those who are familiar with the set of protocols Dr. Warren was 

following about those protocols and the meanings of terms they use, but it may not ask 

witnesses about their hypothetical responses to invented situations that have nothing to do 

with the facts of this case. Allowing such inquiry would turn this trial into a philosophical 

exploration of the boundaries of the concept of informed consent, when the facts of this 

case raise no such issue. There is no dispute that the two migrants involved in this case 

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were able to, and in fact did, give consent to whatever treatment they received. Any 

hypothetical exploration of the concept’s application in other cases would be a distraction 

and a waste of time, and would be irrelevant to the charge the government seeks to prove 

in this case. 

Testimony about the outer limits of the concept of informed consent in invented 

hypothetical situations consumed an inordinate amount of time at the first trial. Although 

the evidence about the existence of an informed consent requirement and an explanation 

of the concept were necessary and relevant to this case, the repeated inquiry into its 

application in extreme and unlikely situations was not.

Andy Silverman

The No More Deaths protocols contain a requirement that volunteers obtain 

informed consent from patients before treating them or taking action on their behalf. RT 

6/4/19 at 54; 87. Professor Silvemran testified about the meaning of informed consent: 

So informed consent is explaining exactly what an evacuation is, what may 

occur, you know, et cetera, and so, you know, so they should—so we want 

to make sure they understand that, and if they’re able, to give consent. And 

what I mean by that is, obviously if they’re unconscious, then obviously they 

could not give consent, or they speak a language that would not, you know, 

we’re not able to talk with them, you know, you know, there may or may not 

be a problem in that situation.

RT 6/4/19 at 87-88. This testimony properly addressed the meaning of a requirement that

appears in the protocols Dr. Warren was following, at the level of generality that the 

protocol’s drafters understood it to apply. 

Susannah Brown

Susannah Brown, a nurse who treated the two patients at issue in this case, also 

testified at trial. The prosecutor asked her about one patient, Jose, who had a rib injury, and 

she confirmed that she “did not believe that whatever rib injury he may have had required 

any type of hospitalization.” RT 6/4/19 at 164. That testimony was clearly relevant, as it 

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established what occurred in this case. 

The prosecutor then continued: “[I]f you believe there was something more serious 

with his ribs, say a cracked or fractured rib, is that something that you would have 

recommended hospitalization over?” Id. This question strayed away from the facts of the 

case to ask what she would have done if things had been different. That question was only 

marginally relevant, because it had already been established that that was not the case here, 

although it arguably could help the jury understand how badly injured the patient was in 

the range of possible injuries. 

But the prosecutor did not stop there. Brown testified that if someone had significant 

pain, she “would ask the person if they would wanted [sic] me to call an ambulance to take 

them to the hospital,” id. The prosecutor then drilled into this hypothetical situation in a 

way that went far beyond any possible claim that he was simply establishing how badly 

injured this patient was: “So even if you thought it was medically necessary to get him to 

a hospital, you would ask for that person’s consent first?” That question had no bearing 

whatsoever on the condition of the patients in this case. Nor did it ask about what NMD 

protocols, which governed Dr. Warren’s actions, required. It was a hypothetical question 

posed to a fact witness about what she personally would do in a situation that, as the 

testimony had clearly established, was not present in this case. The prosecutor then 

proceeded to ask her a long series of questions about what she would and would not do in 

that invented situation based not on anything to do with NMD, but on her own personal 

ethics. Id. at 165-66 (“As a nurse, you would put that level of consent over saving that 

person’s life, if you believe hospitalization was necessary?”) (“And despite having a 

potentially life-threatening condition, if he says no, you’re going to just do nothing?). The 

subject of these questions was really the moral and ethical correctness of the doctrine of 

informed consent itself—obviously not a question properly put to a jury in a criminal trial. 

Confirming the utter irrelevance of what she would do in a made-up situation, 

Brown testified that she did “seek and obtain informed consent from Jose and Kristian. . . 

on the 15th of January.” RT 6/4/19 at 189. There was thus no reason to delve into what 

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would occur if someone had life-threatening injuries and did not consent. 

Norma Price

The jury was clearly taken in by this detour; a juror specifically asked the next witness, 

a medical doctor, about it: “As a physician, if the nausea and vomiting continue and you 

felt he or she needed more medical attention, i.e. IV therapy or death would happen, would 

you wait for consent or call 911/Border Patrol if no consent was given?” RT 6/4/19 at 232. 

Dr. Price responded, “We never call without the patient’s consent unless they’re 

unconscious.” Id. Given the confusion that had arisen during the government’s questioning 

of Susannah Brown, the defense then had Dr. Price explain that in addition to the informed 

consent requirement that appears in NMD’s protocol, as a medical professional, she had an 

obligation to obtain informed consent before treatment from any patient as long as they 

were conscious. Id. at 235-36. 

The prosecutor then returned to the made-up situation that had definitely not occurred 

in this case: “So if a person is so dehydrated that they need to go to the hospital, if they say 

no, they could potentially die right in that location; correct?” Id. at 238. Again, this was 

not a question about the content of the protocols Dr. Warren was following, nor was it a 

question about the facts of this case; it was a philosophical question about the outer 

boundaries of a complex social and medical concept that was not implicated in the case. 

The prosecutor then continued to follow this line of questioning about the nonexistent 

hypothetical situation, which yielded from the witness such insights as “Death is not 

unethical,” and “I can’t see that situation arising.” Id. at 239. 

Geena Jackson

Ms. Jackson, another NMD volunteer, also testified about the informed consent 

requirement included in the NMD protocols: “Both in my training as an EMT and as that 

continues into the Red Cross protocols, our [NMD’s] protocols, we only operate on the 

consent of the patient. So if I run into someone, I’m not going to do something that they 

don’t consent to or ask for based on the information.” RT 6/5/19 at 105. Again, this 

testimony provided the jury with information about the protocols that applied to Dr. 

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Warren’s actions in this case. The prosecutor then asked her some general questions about 

what the “informed” aspect of “informed consent” really means as used in the protocols. 

Id. at 121-22. This testimony properly sought to clarify the rule that applied to Dr. Warren’s 

conduct in the events of this case. 

The jury, however, was apparently still hung up on the detour the government had 

initiated with Susannah Brown, as a juror asked: “You as a licensed EMT saw a migrant 

that was near death and needed IV therapy and you did not receive consent. What would 

you do?” Id. at 141. The Court advised the witness, “I think it’s a hypothetical question.” 

Id. This was not a question about the protocols that applied to Dr. Warren, nor about any 

situation related to this case; it was a difficult moral question about the witness’s own 

ethical beliefs that had no bearing on the events of this case, nor on her truthfulness or 

credibility. Moreover, it did not even address the issue that had led to the discussion in the 

first instance—whether to call 911. And as the witness’s answer confirmed, she had never 

known that made-up situation to occur. Id. 

The prosecutor, however, even after Ms. Jackson’s testimony that this was not a 

realistic situation, returned to the question: “And the question wasn’t have you ever. It was 

what you do if a person needed life-saving IV treatment and they weren’t—and they didn’t 

give you consent. They were able to but didn’t. What would you do?” Id. at 144. But what 

this witness herself would do in a situation she testified had never occurred that was 

unrelated to the events of this case was not a proper subject for inquiry. Moreover, the 

witness noted the utter inapplicability of that particular hypothetical to her: “I don’t have 

my IV certification, so I cannot give an IV.” Id. Nonetheless, the prosecutor continued to 

ask about it, over the course of two more transcript pages, in which he was explicit that 

“we’re asking what would you do in a particular hypothetical, not situations that you have 

been in.” Id. at 145. 

Discussion

This repeated discussion of what, exactly, informed consent requires when patients 

are in life-threatening situations and withholding consent has nothing to do with Dr. 

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Warren’s actions and intentions on January 14-17, 2018. Although a basic understanding 

of informed consent, as used in the protocols, assisted the jury in understanding how Dr. 

Warren did and did not interact with law enforcement during the events of this case, 

hypothetical questions about particular witness’s responses to extreme and unlikely 

situations said nothing at all about Dr. Warren. 

Federal Rule of Evidence 401 explains that evidence is only relevant if it “has any 

tendency to make a fact more or less probable than it would be without the evidence” and 

“the fact is of consequence in determining the action.” And Rule 402 provides that 

“Irrelevant evidence is not admissible.” Evidence about what might or might not occur if a 

patient in life-threatening condition withheld consent is irrelevant, and must be excluded. 

Even if the Court does find some remote relevance, it must be excluded under Rule 403, 

because any probative value is substantially outweighed by a danger of confusing the issues 

and wasting time, as well as undue prejudice. 

Moreover, the Rules of Evidence do not permit posing hypothetical questions to fact 

witnesses. See Advisory Committee Notes to 2000 Amendments to Rule 702 (noting that 

the language “facts or data,” which define information on which an expert witness may 

rely, encompasses “hypothetical facts that are supported by the evidence.”); Advisory 

Committee Notes to Rule 703 (recognizing the practice of posing hypotheticals to expert 

witnesses); United States v. Parker, 991 F.2d 1493, 1500 (9th Cir. 1993) (Because defense 

counsel made no effort to qualify Feukes as an expert, the district court properly excluded 

Feukes’ answer to the hypothetical question.”); Certain Underwriters at Lloyd's v.

Sinkovich, 232 F.3d 200, 203 (4th Cir. 2000) (“Unlike a lay witness under Rule 701, an 

expert can answer hypothetical questions. . . “). 

For all these reasons, and to keep this retrial focused on the charged crime, the Court 

should preclude hypothetical questions about the application of informed consent in other 

situations. 

RESPECTFULLY SUBMITTED this 19th day of September, 2019.

By /s/ Amy P. Knight

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Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott 

Daniel Warren

CERTIFICATE OF SERVICE

I certify that on September 19th, 2019, I electronically transmitted a PDF 

version of this document to the Clerk of Court using the CM/ECF System for filing 

and for transmittal of a Notice of Electronic Filing to the following CM/ECF 

registrants: 

Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov) 

Anna R. Wright, Esq. (email: anna.wright@usdoj.gov) 

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701

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