Michael K Jeanes, Clerk of Court *** Electronically Filed *** Rosa Montoya 4/7/2013 5:00:00 PM Filing ID 5196779

L. KIRK NURMI #020900 LAW OFFICES OF L. KIRK NURMI 2314 East Osborn Phoenix, Arizona 85016 602-285-6947 [email protected] Jennifer L. Willmott, #016826 WILLMOTT & ASSOCIATES, PLC 845 N. 6th Avenue Phoenix, Arizona 85003 Tel (602) 344-0034 Fax (602) 344-0043 Email: [email protected] Attorneys for Defendant ARIAS SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF MARICOPA THE STATE OF ARIZONA Plaintiff, vs. JODI ANN ARIAS, Defendant.

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No. CR 2008-031021-001DT MOTION TO PRECLUDE; ANY AND ALL EVIDENCE RELATED ANY WEIGHT ASSESSMENTS OR TESTING ON SHELVING AT PLACE OF DEATH

(Hon. Sherry Stephens)

Ms. Jodi Arias, by and through undersigned counsel hereby moves this Court to preclude any testimony regarding the weight capacity of the shelves that currently stand in the Master Bedroom Closet at 11428 E Queensborough Ave, Mesa, Arizona 85212. and/or the reaction these shelves would have to Ms. Arias’ weight be precluded as

irrelevant and inadmissible pursuant to Rules 401 and 402 Arizona Rules of Evidence Furthermore, the evidence at issue would be speculative since any such evidence would violate Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993), Arizona Rule of Evidence, and Rule 702, Arizona Rules of Evidence.

I.

FACTUAL BACKGROUND

On March 14, 2013, the State disclosed to Ms. Arias a supplemental report authored by case agent Detective Flores. Based on what is contained in this report, on March 5, 2013, Detective Flores traveled to 11428 E Queensborough Ave, Mesa, Arizona 85212. With him that day was “Crime Scene Specialist” K Kolhepp #16245, whom also works for the Mesa Police Department. While there measurements of the closet and the shelving present that day were made. Also of note is that assessments were made regarding the pins holding up the shelving and how the shelving was resting on those pins. In addition to the observations made on March 5, 2013, pictures were taken of the shelving unit along with an image of an unnamed individual placing weight on and/or lifting up one of the shelves that is now situated within the closet.

II.

ARGUMENT

A. PURSUANT TO THE DICTATES OF RULE 401 AND 402 ARIZONA RULES OF CRIMINAL PROCEDURE THE EVIDENCE COLLECTED BY THE STATE ON MARCH 5, 2013 IS NOT RELEVANT AND IS THUS INADMISSIBLE As an initial matter, it should be noted that there has been no evidence that the shelves at issue are indeed the same shelves in the same condition, nor is there any evidence that the current shelving is supported by the same pins that were present on June 4, 2008. Additional note should also be made of the fact that when the photographs obtained on March 5, 2013, show how the shelves react to weight were taken, the weight of the items on the shelves cannot possibly be the same as they are no longer holding the items they held on June 4, 2008. Given all of the above and without further knowledge, if any, other changes may have been made to the shelves since June 4, 2008, the first legal issue that must be

decided is if observations and or conclusions derived

about the

closet/shelves at issue on March 5, 2013, are relevant to their condition on June 4, 2008. Guiding this decision are the dictates of Rules 401 and 402 Arizona Rules of Criminal Procedure. Rule 401, Arizona Rules of Evidence dictates in part that relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 402, Arizona Rules of

Evidence dictates that evidence that does not meet the aforementioned criteria, is inadmissible. Given this standard it is hard to conceptualize how any evidence related to the current shelving unit, with its weight on March 5, 2013, would react to some undetermined weight is relevant to how said shelving that contained a different weight load on June 4, 2008, would react to an undetermined amount of weight placed on it by Ms. Arias while attempting to flee for her life would be admissible.

B. PURSUANT TO THE DICTATES OF RULE 702 ARIZONA RULES OF CRIMINAL PROCEDURE AND DAUBERT THE EVIDENCE COLLECTED BY THE STATE ON MARCH 5, 2013 IS NOT BASED UPON GENERALLY ACCEPTED, SOUND SCIENTIFIC PRINCIPLES AND IS THUS INADMISSIBLE As of January 1, 2012, Arizona is a Daubert state and amended Rule 702 requires this Court to act as a “gate keeper” and to preclude evidence that is not based upon generally accepted, sound scientific principles. Any conclusions or information drawn from the observations detailed in this recently disclosed report regarding the weight capacity of these shelves and/or how they would react to Ms. Arias’ weight is scientific evidence, it’s a matter of physics that the State is trying to introduce without the scientific basis required by the evidentiary standards of Rule 702 and Daubert. The rule provides that:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a)

the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) (c) (d)

the testimony is based on sufficient facts or data; the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case.

As an initial matter it must be noted that the State has not listed any expert witnesses whom would testify to the reaction that these shelves would have to the weight of Ms. Arias. Furthermore, the State has not listed an expert whom would testify as to how much actual weight Ms. Arias placed on the shelf at issue. Thus it appears the State will be seeking to have either Detective Flores or “Crime Scene Specialist” K Kolhepp #16245, provide expert and or scientific testimony on this issue or simply seek to admit the scientific evidence at issue without any support whatsoever.

III.

CONCLUSION

Any testimony regarding the weight capacity of the shelves that currently stand in the Master Bedroom Closet at 11428 E Queensborough Ave, Mesa, Arizona 85212, and/or the reaction these shelves would have to her weight should be precluded as irrelevant and inadmissible pursuant to Rules 401 and 402 Arizona Rules of Evidence. Furthermore, the evidence at issue is in fact scientific testimony that the State is seeking

to admit without complying with the dictates of Daubert v. Merrell Dow Pharmaceuticals. Inc., 509 U.S. 579 (1993), Arizona Rule of Evidence, and Rule 702, Arizona Rules of Evidence.

RESPECTFULLY SUBMITTED this 7th day of April, 2013.

By /s/: L. Kirk Nurmi L. KIRK NURMI Attorney for Defendant

Copy of the E-FILED delivered this 7 th day of April, 2013, to: Hon. Sherry Stephens Judge of the Superior Court Juan Martinez Deputy County Attorney By /s/:L. Kirk Nurmi L. Kirk Nurmi Attorney for Defendant