IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
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Petitioner,
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v.
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Respondent.
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Civil Case No. XXXX
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MEMORANDUM OF REASONS IN SUPPORT OF
PETITIONER’S MOTION IN LIMINE TO
EXCLUDE ALL AMICUS CURIAE BRIEFS FROM
ADMISSION INTO EVIDENCE OR CONSIDERATION BY THE COURT
Petitioner, _____ (_____), by his undersigned attorneys, in accordance with Federal Rule
702 and United States District Court for the District of Massachusetts Local Rules 5.1 and 7.1,
hereby submits this Memorandum of Reasons in Support of his Motion in Limine to Exclude
Amicus Curiae Briefs filed on appeal or any statements therein from admission into evidence or
consideration by the District Court. In support thereof, _____ states as follows.
I.
RELEVANT BACKGROUND
This case arises from a petition filed by _____ under the Hague Convention on the Civil
Aspects of International Child Abduction for the return of his two little daughters to Sweden.
After consideration of the facts presented during the trial of this matter, the United States District
Court for the District of Massachusetts, on January 2, 2002, issued an opinion ordering _____
ex-wife, _____ (_____), to return his two children to Sweden, subject to several conditions.
Danaipour v. McLarey, 183 F. Supp. 2d 311 (D. Mass. 2002). Final judgment was entered on
January 8, 2002.
TOWS01:7073903|G1195-000029
The decision of the district court was appealed by _____ on January 14, 2002. On appeal
to the United States Court of Appeals for the First Circuit, in addition to the briefs of the parties,
three amicus curiae briefs were filed for consideration by the First Circuit in support of the
appellant and in support of reversal of the district court’s judgment.1 The amicus curiae briefs,
filed upon motion, represent the first involvement of these respective interest groups and entities
since the commencement of the case. None of the interest groups or entities submitting amicus
curiae briefs were parties at the trial, and none entered any evidence at trial.
After considering oral argument, the appellant and appellee brief and the amicus curiae
briefs, the Court of Appeals entered judgment on April 3, 2002 reversing the decision of the
district court and remanding the case for further proceedings. In its opinion, the First Circuit
instructed the district court to determine, based on the facts, whether sexual abuse of the children
occurred and whether the return of the children to Sweden would place them in an intolerable
situation or otherwise place them at grave risk of physical or psychological harm. Danaipour v.
McLarey, 286 F.3d 1 (1st Cir. 2002).
The remanded matter is set for trial on July 30, 2002. The district court has expressed
interest in considering the information and argument contained in the amicus curiae briefs to
assist it in making its new findings. A careful review of the relevant authorities, however,
indicates that such deference to amicus curiae briefs would be contrary to the Federal Rules of
Evidence, common law and the remand instructions of the First Circuit.
1
Accordingly, _____
The first brief is captioned, “Brief of Amici Curiae Leadership Council for Mental Health Justice & The
Media; Massachusetts Society for the Prevention of Cruelty to Children; Community Legal Services and Counseling
Center; Children’s Law Center of Massachusetts, Inc.; Gloucester men Against Domestic Abuse; and Emerge, Inc.,
in Support of Appellant and Reversal of Judgment Below”. The second brief is captioned, “Brief of Amici Curiae
Massachusetts Citizens for Children, Women’s Bar Association of Massachusetts, Greater Boston Legal Services,
Jane Doe Inc., Domestic Violence Council, Inc. and Rebecca M. Bolen, Ph.D. in Support of Appellant and Reversal
of the Judgment Below”. The third brief is captioned, “Brief of Amicus Curiae Attorney General Thomas F. Reilly
for the Commonwealth of Massachusetts”.
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requests that its Motion in Limine be granted and the amicus curiae briefs be excluded from
consideration by the District Court.
II.
A.
LEGAL ARGUMENT
Consideration of Amicus Curiae Briefs by the Fact-Finder Is Improper As the Amici Are
Not Parties With the Power to Introduce Evidence.
The Amici in this matter are not parties but lobbyists acting on behalf of specific interest
groups. The information provided in the briefs is not tested, not proven, and not supported by
traditional protections afforded to record evidence. Accordingly, the district court should not
entertain the information contained in the briefs as if it were record evidence.
Amici are not parties. New England Patriots Football Club, Inc. v. Univ. of Colo., 592
F.2d 1196, 1198 n.3 (1st Cir. 1979)(describing amicus curiae as non-party that can only provide
general information and assistance). Non-parties simply lack the power to introduce evidence,
which would serve as the basis for a finding of fact. High Sierra Hikers Ass’n. v. Powell, 150 F.
Supp. 2d 1023, 1045 (N.D. Cal. 2001)(holding that without leave to intervene in a matter,
“Amici are not parties and cannot introduce evidence;” and excluding from consideration by the
court extra-record evidence submitted by Amici).
The Amici in this case entered their first appearance in the matter on appeal to the First
Circuit, and therefore were not involved in the earlier trial.
The amici have no personal
knowledge of the facts. The Amici did not offer any evidence, present any experts, or afford the
parties in this action the opportunity to cross-examine any witnesses or experts on the facts
asserted in their briefs. The Amici’s participation at the appeal level simply does not grant them
essentially the power to introduce unsupported hearsay for consideration by the fact-finder.
Ricciardi v. The Children’s Hospital Medical Center, 811 F.2d 18, 20 (1987)(noting that hearsay
is not admissible evidence).
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In addition, an amicus is one who might, not as a party but as a stranger, give information
of some matter of law in regard to which the court is doubtful or mistaken for the assistance of
the court. New England Patriots, 592 F. 2d at 1198. Unfortunately, “most authors of Amicus
briefs are lobbyists whose primary goal is to advance the interests of their clients. They are not
guided by the scientific norms of neutrality and objectivity but by the ideology of advocacy. The
desire to win the case encourages the Amicus to distort or ignore any damaging social science
findings.” Michael Rustad, Thomas Koenig, The Supreme Court and Junk Social Science:
Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91, 100 (1993).
Amicus briefs simply
are not impartial resuscitations of proven scientific theory, but cumulations of favorable statistics
used to persuade the court. Certainly, such information cannot serve as the basis of a district
court decision, because it is inherently unreliable.
B.
Consideration of the Amicus Curiae Briefs is Improper as a Finding of Fact Must be
Based on Substantial Evidence and Must be Supported by the Record.
The First Circuit has remanded the matter to the district court for a specific factual
finding.2 Danaipour, 286 F.3d at 1. The amicus briefs, however, are not based on substantial
evidence and are not part of the record. Any finding of fact based upon these briefs, therefore,
would be defective.
A traditional criticism of amicus briefs is that very often they attempt to introduce social
science to the court through non-record evidence. 72 N.C.L. Rev. at 92. Fortunately, the
information contained in amicus briefs most commonly is provided on appeal for consideration
2
The First Circuit, in remanding the matter for reconsideration by the District Court, instructed the District
Court: “on these facts . . . adjudicate the issue of whether sexual abuse occurred.” Danaipour, 286 F.3d at 50.
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by an appellate court, when the trial record3 already has been established. See Wilkins v. Univ.
of Houston, 654 F.2d 388, 403 (5th Cir. 1981)(noting that at trial when social science is
employed, “it is the subject of expert testimony and knowledgeable cross-examination from both
sides”), vacated by 459 U.S. 809 (1982).
When introduced at the trial level, however, the social science contained in amicus curiae
briefs, “is tested by such mechanisms as the rules of evidence, cross-examination, relevancy
rulings and jury instructions,” as well as challenges to experts and their qualifications. 72 N.C. L.
Rev. at n.13. These protections do not exist when social science information does not come from
the record. Id.; Weinstock v. Columbia University, 224 F.3d 33 (2d Cir. 2000)(noting that raw
data presented in an amicus brief is “statistical evidence” not part of the record and, therefore, is
material that cannot be considered in deciding the case). Therefore, even if the information
contained in the amicus curiae briefs could be considered upon remand, it would have to be
properly introduced and admitted as evidence by a party and subject to the appropriate crossexamination. In the instant case, the information contained in the amicus curiae briefs has not
gone through this mandatory process.
C.
Consideration of the Amicus Curiae Briefs Is Improper as They Are Not Admissible
Evidence.
Perhaps the most logical and persuasive reason why the trial court’s consideration of
facts and theories presented in amicus curiae briefs is improper is that the information contained
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It also bears noting that the appellate court will not consider rulings or evidence that are not part of the trial record.
International Business Machines Corp. v. Edelstein, 526 F.2d 37, 45 (S.D. N.Y. 1975).
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in the briefs simply is not admissible evidence.4
First, the subject matter of the briefs is
information that can only be admitted as expert testimony. Second, the briefs are not based on
personal knowledge and constitute inadmissible hearsay. Third, the briefs do not constitute
learned treatises and cannot be considered as such.
1.
The Social Science Theories Expressed in the Amicus Curiae Briefs Can Only Be
Considered by the Court if Admitted as Expert Testimony.
Based on the United States Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals Inc., 509 U.S. 579 (1993), and its progeny, an expert’s proffered opinion must
be a reliable, scientifically valid theory, supported by peer-reviewed articles, test results and
general acceptance in the scientific community; it must also connect the scientifically valid
theory to the facts of the case. Unless these prerequisites are satisfied, the opinion is simply
unsupported, unfounded speculation, and thus inadmissible as a matter of law.
See
Commonwealth v. Lanigan, 641 N.E.2d 1342, 1348 (Mass. 1994).
In this case, as there is neither scientific nor factual support for the claims asserted by the
amici in their briefs, the briefs are inherently unreliable as a matter of law and will not be helpful
to a trier of fact. In this respect, _____ respectfully requests that this Court exercise its role as
gatekeeper to prevent the introduction of evidence that is neither based upon scientifically valid
principles nor relevant to the facts at hand.
2.
The Amicus Curiae Briefs are not Based on Personal Knowledge and Constitute
Inadmissible Hearsay.
The out-of-court statements of a non-testifying declarant ordinarily are excluded as
hearsay if offered to prove the truth of the matter asserted. U.S. v. Barone, 114 F.3d 1284, 1292
(1st Cir. 1997). “The rule against hearsay reflects concerns about the trustworthiness of out-of-
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This argument assumes, of course, the briefs were introduced into evidence by a party as part of the record.
Footnotes continued on next page
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court statements, arising from the fact that such statements are not subject to the tests normally
applied to in-court testimony to ensure its reliability.” Id. at 1292.
The amicus curiae briefs submitted on appeal are not sworn statements made in court.
Rather, they are out-of-court written statements made to prove the truth of the social science
theories asserted. Clearly, the statements contained in the briefs constitute hearsay.
Moreover, the briefs are not based on personal knowledge. The briefs constitute a
compilation of facts and figures from various social scientists and scholars, none of whom have
presented any evidence in open court, or have personally reviewed the facts relevant to the case
at hand. It is a well-established maxim that findings can not be based on speculation and
conjecture. Solomon v. Northwestern State Bank, 327 F.2d 246 (Minn. 1964). Accordingly, the
amicus curiae briefs constitute inadmissible hearsay and cannot be considered by the court on
remand.
3.
The briefs do not constitute learned treatises and cannot be considered as such.
Federal Rule of Evidence 803(18) provides a limited exception from the hearsay rule for
statements from “published treatises, periodicals, or pamphlets on a subject of history, medical or
other science or art.”
Learned treatises falling into this classification may be read into evidence
after an expert witness has identified the treatise as reliably authoritative, by the expert witness
testifying on direct or cross-examination, by another expert witness, or through judicial notice.
Fed. R. Evid.803(18); e.g., Tagatz v. Marquette Univ., 681 F. Supp. 1344, 1351 (E.D. Wis.
1988), aff’d, 861 F.2d 1040 (7th Cir. 1988)(“learned treatises are excluded by the hearsay rule
unless they are called to the attention of an expert witness or relied upon by the witness”). In
fact, the treatises themselves may not be introduced into evidence, so the finder of fact generally
This has not occurred, particularly because the amici are not parties to this action.
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may not review them during deliberations. 2 James W. Moore et al., Moore’s Federal Practice
and Procedure, § 803.6(18) (LexisNexis ed. 2002).
It follows, then, that a compilation of social science articles created by attorneys for
various public service entities is far from the reliable nonhearsay evidence that may be given any
weight by a fact-finder. The amicus curiae briefs do not even come close to meeting the standard
of reliable evidence necessary under the Federal Rules. The amicus curiae briefs must be
excluded from the factual finding charged to the district court.
III.
CONCLUSION
The Amici are not parties and do not have the power to admit evidence. A finding of fact
that is based to any extent on the amicus curiae briefs would not constitute a finding based on
substantial facts supported by the record evidence. Moreover, and importantly, the amicus curiae
briefs are not admissible evidence. Therefore, _____ requests that his Motion in Limine be
granted, and the district court exclude the amicus curiae briefs and any facts asserted therein
from consideration of this matter on remand.
__________________________
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Attorneys for Petitioner,
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this ____ day of _______________, a copy of
Petitioner’s Memorandum of Reasons in Support of Petitioner’s Motion in Limine to Exclude all
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Amicus Curiae Briefs From Admission into Evidence or Consideration by the Court, was sent
via federal express, next morning delivery, to: _____.
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