Law School Outline - Sample Motion in Limine

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SCALE II ANONYMOUS ID # 364375 OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200 Attorney for Plaintiff PEOPLE OF THE UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

PEOPLE OF THE UNITED STATES OF AMERICA, Plaintiff, vs. LAWRENCE DOOZE,

Case No.: CR-0508 NOTICE OF MOTION AND PLAINTIFF’S MOTION IN LIMINE TO INCLUDE VICTIM’S OUT-OF-COURT STATEMENTS Trial Date: March 14, 2005 Time: 10:00 A.M. Courtroom: Central District Courtroom Judge: Consuelo B. Marshall

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Defendant

PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

TABLE OF CONTENTS
TABLE OF CONTENTS .................................................................................................................... i TABLE OF AUTHORITIES .......................................................................................................... iii NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD .... 1 STATEMENT OF JURISDICTION ............................................................................................... 1 STANDARD OF REVIEW ............................................................................................................... 1 FACTS .................................................................................................................................................. 1 SUMMARY OF LEGAL ARGUMENT ......................................................................................... 3 ARGUMENT ....................................................................................................................................... 4 I. THE VICTIM’S OUT-OF-COURT STATEMENTS DO NOT MEET THE SUPREME COURT’S NARROW DEFINITION OF TESTIMONIAL EVIDENCE UNDER CRAWFORD V. WASHINGTON A. B. C. The Holding of Crawford v. Washington Is A Narrow One, Limiting The Accepted Definition Of “Testimonial” The Victim’s Statements Are Not Testimonial Evidence Under Crawford v Washington Because There Was No Police Interrogation The Ninth Circuit Has Held That A Request For Help Is Not A Testimonial Act 1. 2. D. II. Substantial Persuasive Authority Supports This Circuit’s Position That A Request For Help Is Not A Testimonial Act The Criminal Charges Pending Against The Defendant Are Not Conditioned Upon A Statement By The Victim

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The Victim’s Statements Were Excited Utterances

EVEN IF THEY ARE TESTIMONIAL EVIDENCE, THE VICTIM’S STATEMENTS ARE EXCEPTIONS TO THE CONFRONTATION CLAUSE A. The Victim’s Statements Are Admissible For Purposes Other Than The Truth Of The Matter Asserted - Not Hearsay

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THERE ARE NO OTHER PROCEDURAL OR CONSTITUTIONAL BARS TO THE VICTIM’S STATEMENTS A. B. Absent A Confrontation Clause Bar, Ohio v. Roberts Controls The Admissibility of Hearsay Evidence Against Criminal Defendants The Victim’s Statements Are Admissible Under Ohio v. Roberts 1. 2. The Victim’s Excited Utterance Is A Firmly Rooted Hearsay Exception The Context Of The Victim’s Statements Indicates Reliability
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C.

The Victim’s Statements Are Not Unfairly Prejudicial

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PRAYER FOR RELIEF .................................................................................................................. 16 PROOF OF SERVICE ..................................................................................................................... 17 3 PROPOSED ORDER GRANTING MOTION IN LIMINE ...................................................... 18 4 5 6 7 8 9 10
OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

TABLE OF AUTHORITIES FEDERAL CASES Barber v. Page, 390 U.S. 719 (1968) .............................................................................................4 Crawford v. Washington, 124 S. Ct. 1354 (2004) ................................................................................ passim Idaho v. Wright, 497 U.S. 805 (1990) ...........................................................................................15 Leavitt v. Arave, 383 F.3d 809 (9th Cir. 2004) ................................................................ 7, 8, 11, 15 Luce v. United States, 469 U.S. 38 (1984) ...............................................................................................1 Ohio v. Roberts, 448 U.S. 56 (1980) ....................................................................................... 14, 15 Tennessee v. Street, 471 U.S. 409 (1985) ...........................................................................................13 United States v. Rambo, 74 F.3d 948 (9th Cir. 1996) ..................................................................................1 United States v. Stone, 222 F.R.D. 334 (E.D.Tenn. 2004) ......................................................................13 United States v. Taylor, 328 F. Supp. 2d 915 (N.D.Ind. 2004) .................................................................13 FEDERAL STATUTES & ADMINISTRATIVE CODES 18 U.S.C. § 1342 .....................................................................................................1 FED. R. CRIM. P. 12 .................................................................................................1 FED. R. CRIM. P. 57 .................................................................................................1 FED. R. EVID. 403 ..................................................................................................15 FED. R. EVID. 803(2) .............................................................................................15 U. S. DIST. CT. RULES C.D.CAL. LOCAL CIV RULE 7-3.............................................1 CONSTITUTIONS U.S. CONST. AMEND. VI...........................................................................................7 STATE CASES Cassidy v. State, 149 S.W.3d 712 (Tex. Ct. App. 2004) ..................................................................9 Commonwealth v. Eichele, 66 Pa. D. & C.4th 460 (Pa. Com. Pl. 2004) ........................................................13
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

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Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004) ............................................................ 10, 11 Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004) .............................................................. 9, 11 People v. Compan, 100 P.3d 533 (Colo. Ct. App. 2004) ...................................................................12 People v. Gomez, 12 Cal. Rptr. 3d 398 (Ct. App. 2004)..................................................................13 People v. McPherson, 687 N.W.2d 370 (Mich. Ct. App. 2004) .............................................................13 People v. Pantoja, 18 Cal. Rptr. 3d 492 (Ct. App. 2004)..................................................................11 People v. Reynoso, 781 N.Y.S.2d 284 (N.Y. App. Div. 2004) ..........................................................13 People v. Thompson, 812 N.E.2d 516 (Ill. App. Ct. 2004) ...................................................................11 Rogers v. State, 814 N.E.2d 695 (Ind. Ct. App. 2004) .............................................................. 9, 11 State v. Barnes, 854 A.2d 208 (Me. 2004) ............................................................................... 8, 11 State v. Blackstock, 598 S.E.2d 412 (N.C. Ct. App. 2004) .................................................................14 State v. Clark, 598 S.E.2d 213 (N.C. Ct. App. 2004) .................................................................13 State v. Corella, 18 Cal. Rptr. 3d 770 (Ct. App. 2004).......................................................... 8, 9, 12 State v. Dedman, 102 P.3d 628 (N.M. 2004) ..................................................................................14 State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004) ...................................................................11 State v. Orndorff, 95 P.3d 406 (Wash. Ct. App. 2004) ....................................................................12 State v. Rivera, 844 A.2d 191 (Conn. 2004) ................................................................................14 STATE STATUTES & ADMINISTRATIVE CODES CAL. PENAL CODE § 273.5 (West 2004) ............................................................ 3, 10 OR. REV. STAT. § 40.460(18)(b) (2004) ........................................................... 10, 11 OTHER MATERIALS Jessica Smith, Confrontation After Crawford v. Washington, University of North Carolina School of Government and Law, at
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

http://ncinfo.iog.unc.edu/faculty/smithjess/pdfs/200410crawfordjsmith.pdf (visited Jan. 19, 2005) ........................................................................................14 Motion for Leave to File and Brief Amicus Curiae of Law Professors Sherman J. Clark, James J. Duane, Richard D. Friedman, Norman Garland, et. al. at 7 & 23, Crawford v. Washington, 124 S. Ct. 1354 (2004) .................................................4

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD Plaintiff, by counsel, for its Motion in Limine to Include Victim‟s Out-OfCourt Statements hereby moves this Court for an order including Victim‟s out-ofcourt statements to responding and investigating Police officers. This motion is made following the conference of counsel which took place on December 27, 2004 pursuant to U. S. DIST. CT. RULES C.D.CAL. LOCAL CIV RULE 7-3 as adopted under FED. R. CRIM. P. 57 . Plaintiff respectfully submits the following Suggestions.

STATEMENT OF JURISDICTION This is a pre-trial evidentiary motion in a case being prosecuted for an offense committed on federal land and charged against the laws of the State of California, of which the District Court of the Central District of California has subject matter jurisdiction pursuant to 18 U.S.C. § 1342.

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STANDARD OF REVIEW Pre-trial evidentiary motions are matters of discretion for the trial court. United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979). Motions in limine are well recognized in practice and by case law. Id. See also Luce v. United States, 469 U.S. 38, 41 (1984) (authority for motions in limine may be implied from the court's inherent power to manage the course of trials); FED. R. CRIM. P. 12. Grant or denial of a motion in limine is within the trial court‟s sound discretion and is rarely disturbed on appeal. United States v. Rambo, 74 F.3d 948, 955 (9th Cir. 1996).

FACTS 1. At approximately 1:25 PM on or about November 10, 2004, Sergeant Progg, a police officer from the Base Police Department, was flagged down by a
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

female Black, later identified as Shiela M., Victim, who stated that she was beaten by her boyfriend. 2. At approximately 1:30 PM on or about November 10, 2004, uniformed officers Pearn and Peese arrived on scene in response to Sergeant Progg‟s call for back up. 3. Officer Peese interviewed the Victim who stated that at approximately 1:00 PM (30 minutes prior to the interview) she was physically beaten by Defendant, her boyfriend of approximately 14 years and the father of her two children. Victim further stated that the physical abuse resulted from a domestic dispute involving her trips to a nearby liquor store to purchase beer for Defendant. Victim claimed that Defendant knocked her unconscious and left her in an alley near the liquor store. Victim also stated that the Victim and Defendant lived together off and on with their two children at various motels in the area. The children were not at the scene. 4. Officer Peese noted multiple lacerations to the Victim‟s face and neck, and extensive swelling to her right eye. Victim was treated at the scene by Paramedics but refused to be transported to the hospital for further treatment and observation. Victim refused to be photographed. 5. Officer Peese then interviewed Carlos Wosas, Witness, who stated that at approximately 1:15 PM on November 10, 2005 he observed Defendant follow Victim into a nearby liquor store and punch and strike Victim in the back of the head with his closed right fist. 6. Officer Pearn interviewed Zeida Wasquez, Witness, who stated that at approximately 1:20 PM on November 10, 2005 she exited her apartment and observed a female Black, later identified as the Victim, lying on the sidewalk in an alley near the liquor store. Wasquez stated that the Victim appeared to be unconscious and the Defendant was standing over her. 7. While searching for additional witnesses, Officer Pearn and Sergeant
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

Progg observed Defendant in the alley behind the liquor store and arrested him. 8. Defendant admitted having an altercation with Victim that evening and admitted making physical contact with Victim during that altercation. Defendant claims that such contact was in self defense. 9. Defendant did not receive any medical treatment at the Division Jail Dispensary. 10. Officer Pearn returned to the scene at approximately 6:20 PM on November 10, 2005 at which time he observed the Victim loitering in the alley. Officer Pearn observed scratches to the Victim‟s neck and her right eye was swollen shut. 11. Commissioner Jumar issued an Emergency Protective Order for the Victim, which prohibits the Defendant from coming within 100 yards of the Victim or her residence. 12. On December 27, 2004, the United States indicted Defendant, and charged him with one count of spousal abuse under CAL. PENAL CODE § 273.5 (West 2004). 13. Victim has disappeared from the area and cannot be located despite the best efforts of the Police and prosecutors.

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SUMMARY OF LEGAL ARGUMENT The People seek to admit into evidence the Victim‟s out-of-court statements to Officer Peese. These statements do not offend the Defendant‟s Confrontation Clause rights under the Sixth Amendment, because they are non-testimonial and the Victim is not available to testify. See Crawford v. Washington, 124 S. Ct. 1354 (2004) The Victim‟s statements are non-testimonial because they were voluntarily given in a field interview initiated by the Victim, for the purpose of receiving aid and assistance, and were not reasonably expected to be used prosecutorially. The
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

Victim‟s interview statements bear none of the hallmarks of the “station house” custodial police interrogations described in Crawford and decried by legal scholars. See, e.g., Motion for Leave to File and Brief Amicus Curiae of Law Professors Sherman J. Clark, James J. Duane, Richard D. Friedman, Norman Garland, et. al. at 7 & 23, Crawford v. Washington, 124 S. Ct. 1354 (2004) (describing the constitutional impact of “station house” interrogations and advocating a testimonial approach to Confrontation Clause jurisprudence). The Victim is unavailable because she has disappeared from the area and cannot be located despite the best efforts of the Police and prosecutors. See Crawford v. Washington, 124 S. Ct. at 1360 (witness is unavailable "only if the witness is demonstrably unavailable to testify in person."). See also Barber v. Page, 390 U.S. 719, 725 (1968) (A witness is considered unavailable for purposes of the Confrontation Clause if the "prosecutorial authorities have made a good faith effort to obtain his presence at trial."). However, even if the Victim‟s statements are deemed testimonial by this Court, they may be admitted into evidence not conditioned upon the truth of the statements. Testimonial statements not offered for the truth of the matter asserted are exceptions to the Confrontation Clause because they are not hearsay. Crawford at 1369 n.9. Thus, they might be admitted to corroborate the testimony of the two eyewitnesses, to impeach the Defendant‟s testimony, to demonstrate a pattern of abuse by the Defendant, and to establish the Police Officers‟ collective knowledge supporting probable cause for the arrest. In short, there is no legal bar the admission of the Victim‟s statements because they are not testimonial, the Victim is not available to testify, and regardless, the statements are not being offered for their truth.

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ARGUMENT I. The Victim’s Out-Of-Court Statements Do Not Meet The Supreme
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

Court’s Narrow Definition Of Testimonial Evidence Under Crawford v. Washington A. The Holding of Crawford v. Washington Is A Narrow One, Limiting The Accepted Definition Of “Testimonial” In Crawford, the United States Supreme Court held that when an outof-court statement of an unavailable witness is testimonial, the Sixth Amendment requires that the accused be given a prior opportunity to cross-examine the witness before a hearsay statement can be admitted at trial. Id. at 1370. The Court noted that the underlying purpose of the Confrontation Clause was to preclude the use of ex parte examinations against the accused. Id. at 1363. Although the Court declined to provide a comprehensive definition of the term “testimonial,” it indicated that the term includes three categories of evidence: (1) prior testimony at a preliminary hearing, before a grand jury, or at a former trial, Id. at 1374; (2) plea allocutions showing existence of a conspiracy, Id. at 1372; and (3) police interrogations, Id. at 1374. The Court also noted that it used the term interrogation “in its colloquial, rather than any technical legal, sense.” Id. at 1365 n.4. Also, the Court identified four categories of non-testimonial evidence: (1) off-hand remarks, Id. at 1364 (“An off-hand, overheard remark . . . bears little resemblance to the civil-law abuses the Confrontation Clause targeted.”); (2) a casual remark to an acquaintance, Id. at 1364 (“Testimony . . . is typically a[] solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . . An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. at 1364 (citation and quotation omitted); (3) business records, Id. at 1367; and (4) statements in furtherance of a conspiracy, Id. The Court went no further than this in delineating what constitutes testimonial versus non-testimonial evidence. It noted that “[v]arious formulations
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

of . . . „testimonial‟ statements exist,” including (1) materials that are the functional equivalent of ex parte in-court testimony such as affidavits, custodial examinations, prior testimony and similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Id. at 1364. Careful application to the facts of this case of this guidance and subsequent lower Court interpretations support the conclusion that Victim‟s out-of-court statements to Officer Pease were nontestimonial. The Victim’s Statements Are Not Testimonial Evidence Under Crawford v Washington Because There Was No Police Interrogation The Victim‟s statements to Police were a far cry from the “station house” custodial interrogations proscribed under Crawford. In Crawford, the Defendant‟s wife was subjected to a tape recorded interrogation by skilled Police detectives investigating Defendant‟s role in the stabbing of a third party victim. The police interrogation in Crawford utilized structured questioning at the police station with the specific purpose of eliciting evidence of the defendant‟s culpability. Prosecutors planned to introduce the statements as evidence in the prosecution of Defendant for attempted murder. The nature, timing, and purpose of the Victim‟s statements in the case at hand are readily distinguishable from Crawford. In the current case, the Victim‟s statements to Police were initiated by the Victim and involved an offense committed against the Victim, not a third party. The distinction is important because “Sylvia Crawford made her statement while in
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B.

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

police custody, herself a potential suspect in the case.” Crawford at 1372. The Victim in the current case was never suspected of beating herself into unconsciousness. The Victim in the current case offered no statements regarding the Defendant‟s conduct toward anyone but herself. The Victim made voluntary, narrative statements to a uniformed patrol officer for the sole purpose of receiving aid and protection just minutes after being beaten unconscious and left in an alley by the Defendant. Paramedics were summoned and Victim received the aid and protection that she sought. Victim never lodged a formal complaint against Defendant, never set foot inside of a police station, and never again spoke to any government agent after November 10, 2004. The Victim could not reasonably have anticipated that her plea for help would later be used in the criminal prosecution of Defendant. C. The Ninth Circuit Has Held That A Request For Help Is Not A Testimonial Act The Confrontation Clause does not apply to the Victim‟s statements because the Victim merely asked for help and could not reasonably have expected her words to be used prosecutorially. The constitutional text is clear: [i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him. U.S. CONST. AMEND. VI. As the Sixth Amendment makes clear—and Crawford reaffirms, See 124 S. Ct. at 1364—the dispositive question is whether the use of the Victim‟s outof-court statements for their truth against the Defendant would make her a witness against him. In a case on-point, the Ninth Circuit held that a victim‟s out-of-court request for help to police is non-testimonial evidence. Leavitt v. Arave, 383 F.3d 809, 830 & n.22 (9th Cir. 2004) In Leavitt, the victim was frightened by a prowler who tried to break into her house. The victim called the police and spoke to dispatchers and police officers, stating among other things that she thought the
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

prowler was the defendant. The victim was unavailable to testify at trial because she had been murdered. In admitting her statements to the police, the Court of Appeals reasoned that a plea for help is not a testimonial evidence: “Although the question is close, . . . [w]e do not think that [the victim‟s] statements to the police she called to her home [are testimonial.] [The victim], not the police, initiated their interaction. She was in no way being interrogated by them but instead sought their help in ending a frightening intrusion into her home.”). Id. at 830. 1. Substantial Persuasive Authority Supports This Circuit’s Position That A Request For Help Is Not A Testimonial Act Although not binding upon this Court, post-Crawford State Court decisions from several jurisdictions have also held that victims‟ statements to police are not testimonial. The Maine Supreme Court addressed the issue in State v. Barnes, 854 A.2d 208, 209-212 (Me. 2004) In that case, an assault victim drove herself to the police station of her own volition and not at the request of the police. While crying and sobbing, and still under the stress of the alleged assault, the victim answered police questions which were not structured, but simply targeted at determining why she was distressed. Police determined that the victim was seeking safety and aid. The victim was unavailable to testify at the defendant‟s trial because she was subsequently murdered. The Court held that the victim‟s statements to police were admissible as non-testimonial evidence. Id. In an assault case similar to that at bar, the California Court of Appeal held that preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an interrogation. State v. Corella, 18 Cal. Rptr. 3d 770 (Ct. App. 2004) (statements made by assault victim to officer who arrived on the scene when victim was crying, distraught and appeared to be in pain were not testimonial; victim‟s “spontaneous statements describing what had just happened did not become part of a police interrogation merely because Officer Diaz was an officer and obtained information from [the victim].” Id. (emphasis
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

added). The Texas Court of Appeals concluded that statements given by an assault victim describing his assailant and made to police officer at hospital one hour after assault were not testimonial. Cassidy v. State, 149 S.W.3d 712, 716 (Tex. Ct. App. 2004). In what is quickly becoming the majority post-Crawford position on the issue of victims‟ statements to police, the Indiana Court of Appeals has thrice ruled that such are non-testimonial. In Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004) the Court reasoned that a domestic battery victim‟s statements to officers who arrived at scene were not “not given in a formal setting even remotely resembling an inquiry before King James I‟s Privy Council,” even though the statement was made in direct response to an officer‟s questions. Id. Drawing a clear distinction between police interrogation and police questioning, the Indiana Court held that “[W]hen police arrive . . . in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not „testimonial.‟ Whatever else police ‘interrogation’ might be, we do not believe that word applies to preliminary investigatory questions asked at the scene of a crime shortly after it has occurred. Such interaction with witnesses on the scene does not fit within a lay conception of police „interrogation,‟ bolstered by television, as encompassing an „interview‟ in a room at the stationhouse. It also does not bear the hallmarks of an improper „inquisitorial‟ practice.” Id. at 952 (emphasis added). Consistent with Hammon, the Indiana Court of Appeals subsequently held that an assault victim‟s statements describing the incident given to a police officer within seven minutes of the officer‟s arrival at the scene were not testimonial. Rogers v. State, 814 N.E.2d 695 (Ind. Ct. App. 2004). In its third ruling on this same issue, the Indiana Court of Appeals
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

addressed a case where a police officer, responding to a 911 domestic disturbance call arrived at the scene in approximately 5 minutes and saw the victim with blood coming from her nose and what appeared to be blood on her shirt and pants. The officer asked the victim what happened and the victim, while moaning and crying, stated that defendant punched her; the officer then arrested the defendant. In its decision to admit the victim‟s statements as non-testimonial evidence, the Court reasoned that the statement was not given in a formal setting or during any type of pretrial hearing or deposition, was not contained within a formalized document of any kind, and the questioning did not qualify as classic police interrogation. Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004). 2. The Criminal Charges Pending Against The Defendant Are Not Conditioned Upon A Statement By The Victim At the discretion of the District Attorney, the Defendant was charged under California‟s domestic violence statute, CAL. PENAL CODE § 273.5. CAL. PENAL CODE § 273.5 is a criminal statute which punishes spousal abuse and a charge thereunder is not conditioned upon a formal complaint by the victim. The Victim never lodged a formal complaint in this case, and charges were brought based upon the overwhelming evidence of the Defendant‟s guilt, including the statements of the investigating officers, paramedics, and corroborating eyewitnesses. Similarly, the restraining order against the Defendant was not supported by or conditioned upon a complaint or affidavit from the Victim‟s. It was issued based upon the same facts and information used to support the Defendant‟s arrest. The People concede that formal domestic violence accusations under some reporting statutes as adopted in some jurisdictions are testimonial almost by definition. For example, OR. REV. STAT. § 40.460(18)(b) (2004) conditions admissibility on the statement “accusing someone of criminal behavior. being made within 24 hours of alleged event; and being either recorded, either
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electronically or in writing or made to a peace officer . . . corrections officer, youth corrections officer, parole [or] probation officer, emergency medical technician or firefighter.” Id. Similarly, victims‟ formal statements in support of restraining orders might also be deemed testimonial. See e.g. People v. Pantoja, 18 Cal. Rptr. 3d 492 (Ct. App. 2004) (declaration in support of protection order testimonial); People v. Thompson, 812 N.E.2d 516 (Ill. App. Ct. 2004) (wife‟s statements in application for a protection order testimonial). The facts of the present case are distinguishable from those holdings in that the Victim‟s statements were made informally, within minutes of the abuse, voluntarily, upon her own initiative (flagging down Sergeant Progg), in an attempt to obtain aid and protection with no reasonable expectation of a criminal prosecution of Defendant. Under the rationale of Leavitt v. Arave and the similar cases discussed supra, the Victim‟s pleas for help are not testimonial. D. The Victim’s Statements Were Excited Utterances Although undecided in this jurisdiction, some Courts have found statements to be non-testimonial when they exhibit the hallmarks of an excited utterance. As one court put it: “Conceptually, . . . excited utterance[s are] at the opposite end of the hearsay spectrum from testimonial hearsay. . . . [They] do not exhibit any of the hallmarks of a testimonial statement: one which is solemn, deliberate and anticipated to be used formally.” Commonwealth v. Eichele, 66 Pa. D. & C. 4th 460, 468-469 (Pa. Com. Pl. 2004). In addition to the Indiana

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Appellate Court decisions discussed supra (Hammon, Fowler v. State, Rogers v. State), a number of Courts have issued opinions consistent with Eichele. See State v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004) (victim‟s “spontaneous” statement to a police officer “immediately after a rescue” was non-testimonial); State v. Barnes, 854 A.2d 208, 209-212 (Me. 2004) (murder victim‟s statements to police pertaining to defendant‟s prior assault on her and threats to kill her were not testimonial; statements were made after declarant drove herself to the police station
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PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

and while crying and sobbing; declarant went to the station on her own and not at the request of the police, the statements were made while still under the stress of the alleged assault and the questions asked were targeted at determining why she was distressed and finally, declarant was not responding to structured police questioning but instead seeking safety and aid). Similar decisions were reached in State v. Corella, 18 Cal. Rptr. 3d 770 (Ct. App. 2004) (statements made by assault victim to officer who arrived on the scene when victim was crying, distraught and appeared to be in pain were not testimonial; victim‟s “spontaneous statements describing what had just happened did not become part of a police interrogation merely because Officer Diaz was an officer and obtained information from [the victim]. Preliminary questions asked at the scene of a crime shortly after it has occurred do not rise to the level of an interrogation”); State v. Orndorff, 95 P.3d 406, 408 (Wash. Ct. App. 2004) (declarant‟s excited utterance to victim that she saw a man with a pistol in the house, saw two men leave the house and tried to call 911 was non-testimonial; statement was a spontaneous declaration made in response to a stressful incident she was experiencing); People v. Compan, 100 P.3d 533 (Colo. Ct. App. 2004) (domestic violence victim‟s excited utterances to her friend about her husband‟s conduct were not testimonial; the statements were not made to a law enforcement or judicial officer, although they were not "casual or off-hand" because the victim was distraught, they were not the kind of "solemn or formal" declarations that Crawford associated with testimonial statements, and were not made for the purpose of establishing facts in a subsequent proceeding). II. Even If They Are Testimonial Evidence, The Victim’s Statements Are Exceptions To The Confrontation Clause A. The Victim’s Statements Are Admissible For Purposes Other Than The Truth Of The Matter Asserted - Not Hearsay The Confrontation Clause does not bar the use of testimonial
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PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

statements for purposes other than establishing the truth of the matter asserted. Crawford, 124 S. Ct. at 1369 n.9. See Tennessee v. Street, 471 U.S. 409, 414 (1985). The People seek to introduce through the testimony of Officer Peese, the

nature and circumstances of his interaction with the Victim on the date in question. The objectives of Officer Peese‟s testimony would be to (1) to corroborate the eyewitness testimony of Carlos Wosas and Zeida Wasquez; (2) to impeach the Defendant‟s testimony; (3) to demonstrate a pattern of abuse of the Victim by the Defendant; and (4) to establish the Police Officers‟ collective knowledge supporting probable cause for their arrest of the Defendant. None of these purposes require that the Victim‟s statements be true. These types of exceptions to the Confrontation Clause are explicit under Crawford and have been duly recognized in a number of post-Crawford opinions rendered in other jurisdictions. See United States v. Stone, 222 F.R.D. 334 (E.D.Tenn. 2004) (even if statements used by expert to form opinion were testimonial, they were offered for purpose other than the truth of the matter asserted and therefore were not covered by the Confrontation Clause); United States v. Taylor, 328 F. Supp. 2d 915, 926 (N.D.Ind. 2004) (use of statements for impeachment purposes does not implicate the Confrontation Clause); People v. McPherson, 687 N.W.2d 370 (Mich. Ct. App. 2004) (same); People v. Reynoso, 781 N.Y.S.2d 284 (N.Y. App. Div. 2004) (statement admitted to show officer‟s state of mind was not subject to the Confrontation Clause); People v. Gomez, 12 Cal. Rptr. 3d 398, 406 (Ct. App. 2004) (hearsay statements of police officers introduced at suppression hearing to establish collective knowledge of officers supporting probable cause was non-testimonial); Commonwealth v. Eichele, 66 Pa. D. & C. 4th 460 at 468-469 (to the extent witness testified that she heard declarant asking defendant to leave, “this is the equal of a command or verbal act and not hearsay” and thus Crawford does not apply); State v. Clark, 598 S.E.2d 213 (N.C. Ct. App. 2004) (noting but not applying this exception because the trial judge did
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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

not give a limiting instruction; “[b]ecause the jury could have considered this evidence for the truth of the matter asserted, we cannot presume it was offered and received as corroborating evidence”). III. There Are No Other Procedural or Constitutional Bars To The Victim’s Statements A. Absent A Confrontation Clause Bar, Ohio v. Roberts Controls The Admissibility of Hearsay Evidence Against Criminal Defendants In Crawford, the Court stated that it has "considered reliability factors beyond prior opportunity for cross-examination when the hearsay statement at issue was not testimonial." Crawford at 1368. The Court did not overrule Ohio v. Roberts, 448 U.S. 56 (1980), and it did not reply to the dissent's assertion that it had done so. Crawford at 1374 (Rehnquist, C.J., dissenting). Rather, the Court stated that “[w]here non-testimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law--as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether.” Id. at 1374. In other words,

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Roberts still applies to non-testimonial hearsay, though the Court may later conclude that the Sixth Amendment is not concerned with non-testimonial hearsay. Although the freshness of Crawford leaves no binding cases directly on point, several state courts and legal scholars have concluded the same. See State v. Dedman, 102 P.3d 628, 636-637 (N.M. 2004) (Ohio v. Roberts still good law); State v. Rivera, 844 A.2d 191, 202 (Conn. 2004) (concluding that Roberts remains in place for determining the admissibility of non-testimonial hearsay); State v. Blackstock, 598 S.E.2d 412, 423 n.2 (N.C. Ct. App. 2004) ("Roberts remains good law regarding non-testimonial statements."); Jessica Smith, Confrontation After Crawford v. Washington, University of North Carolina School of Government and Law, at http://ncinfo.iog.unc.edu/faculty/smithjess/pdfs/200410crawfordjsmith.pdf (visited Jan. 19, 2005) (if the evidence is non-testimonial, apply Roberts).
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PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

B.

The Victim’s Statements Are Admissible Under Ohio v. Roberts Admission of hearsay statements against a criminal defendant violates

the Confrontation Clause unless the statement is admitted pursuant to a "firmly rooted hearsay exception" or exhibits "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66. The Victim‟s statements easily qualify under either prong of this test. 1. The Victim’s Excited Utterance Is A Firmly Rooted Hearsay Exception The Victim‟s voluntary statements were given within 30 minutes of her abuse and within 15 minutes of a being knocked unconscious. The police were on scene only minutes before they began interviewing Victim. This timeline of events is supported by the statements of the responding police officers, paramedics, and eyewitnesses. The temporal and physical proximity of these events ensure that by any objective standard, Victim‟s statements were part of the res gestae, and would qualify as a hearsay exception for excited utterances under FED. R. EVID. 803(2). This exception is firmly rooted. Idaho v. Wright, 497 U.S. 805, 806 (1990); Leavitt, 383 F.3d 809. 2. The Context Of The Victim’s Statements Indicates Reliability There is overwhelming evidence that the Defendant abused the Victim. Carlos Wosas, Witness, will testify that he observed Defendant strike the victim on the back of the head with his closed fist. The physical and temporal proximity of the Victim‟s injuries and call for help, the Police Officers‟ and Paramedics‟ observations of her cuts, bruises; and the corroborating testimony of eyewitnesses are more than adequate indicia of reliability. Any implication that a cut, bruised, bleeding, semi-conscious Victim haled down Sergeant Progg in order to offer false statements would at best strain credulity. C. The Victim’s Statements Are Not Unfairly Prejudicial
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PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

The Victim‟s statements are not unfairly prejudicial pursuant to FED. R. EVID. 403, whereby their probative value substantially outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury. The Defendant concedes involvement in an altercation with Victim on the day in question. Commissioner Jumar‟s issuance of a protective order standing alone is a judicial determination that Defendant committed abuse. Based upon the non-testimonial nature of the statements as discussed supra, and the absence of any other constitutional, hearsay or procedural bar, the probative value discussed above substantially outweighs any theoretical danger of unfair prejudice. PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully prays that this Motion in Limine will be granted, and that this Court direct that the Victim‟s out-of-court statements to Police be held admissible evidence in the criminal proceedings against Defendant.

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Respectfully submitted, Dated: _____________ OFFICE OF THE UNITED STATES ATTORNEY ____ By SCALE II ANONYMOUS ID #364375 Attorney for PLAINTIFF and MOVING PARTY

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

PROOF OF SERVICE I, MONICA TRUJILLO, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the within entitled action. I am employed at the United States Attorney‟s Office of Los Angeles, 333 S. Grand Avenue, Suite 1200, Los Angeles, CA 90012. On January 20, 2005, I served the attached: NOTICE OF MOTION AND PLAINTIFF’S MOTION IN LIMINE TO INCLUDE VICTIM’S OUT-OF-COURT STATEMENTS in the interested parties in said action, by placing a true copy thereof in sealed envelope(s) addressed as follows: Norman S. Garland, Attorney at Law Southwestern University School of Law 675 S. Westmoreland Avenue, Los Angeles, CA 90005

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and served the named document in the manner indicated below: BY MAIL: I caused true and correct copies of the above documents, by following ordinary business practices, to be placed and sealed in envelope(s) addressed to the addressee(s), at the United States Attorney's Office of Los Angeles, 333 S. Grand Avenue, Suite 1200, Los Angeles, CA 90012, for collection and mailing with the United States Postal Service, and in the ordinary course of business, correspondence placed for collection on a particular day is deposited with the United States Postal Service that same day. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed JANUARY 20, 2005, at Los Angeles, California. MONICA TRUJILLO
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PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS

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OFFICE OF THE UNITED STATES ATTORNEY 333 S. Grand Avenue, Suite 1200 Los Angeles, CA 90012 (213) 555-1200

PROPOSED ORDER GRANTING MOTION IN LIMINE

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

The Motion in limine of Plaintiff UNITED STATES OF AMERICA for an order including Victim‟s out-of-court statements to responding and investigating police officers , was heard by the Court on March 14, 2005. Moving party UNITED STATES OF AMERICA, appeared by counsel ANONYMOUS SCALE II ID #364375; defendant appeared by Counsel Norman Garland.

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The Court having considered the documents before it and the oral argument of counsel, and being fully advised, finds that the aforementioned out-of-court statements are not testimonial evidence for purposes of the Confrontation Clause of the Sixth Amendment of the United States Constitution and binding upon the defendant as part of the res gestae; admissible as exceptions to the hearsay rule under Federal Rule of Evidence 803(2) - excited utterances. Wherefore,

IT IS ORDERED that the motion be and hereby is granted, and that plaintiff and its attorney are instructed that such evidence may be offered at trial.

DATED: _______

Consuelo B. Marshall UNITED STATES DISTRICT JUDGE
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PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS


				
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