Get documents about "Motion in Limine - DOC - DOC
Document Sample
1 SCALE II ANONYMOUS ID # 364375
OFFICE OF THE UNITED STATES ATTORNEY
2 333 S. Grand Avenue, Suite 1200
Los Angeles, CA 90012
3 (213) 555-1200
4
5 Attorney for Plaintiff PEOPLE OF THE UNITED STATES OF AMERICA
6
7
8 UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
9
10
PEOPLE OF THE UNITED STATES Case No.: CR-0508
11 OF AMERICA,
NOTICE OF MOTION AND
12 Plaintiff, PLAINTIFF’S MOTION IN
LIMINE TO INCLUDE VICTIM’S
13 vs. OUT-OF-COURT STATEMENTS
14 Trial Date: March 14, 2005
LAWRENCE DOOZE, Time: 10:00 A.M.
15 Courtroom: Central District Courtroom
Defendant Judge: Consuelo B. Marshall
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 TABLE OF CONTENTS
2 TABLE OF CONTENTS ............................................................................................................... i
3 TABLE OF AUTHORITIES....................................................................................................... iii
4 NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD .... 1
5 STATEMENT OF JURISDICTION ........................................................................................... 1
6 STANDARD OF REVIEW .......................................................................................................... 1
7 FACTS ............................................................................................................................................ 1
8 SUMMARY OF LEGAL ARGUMENT ..................................................................................... 3
9 ARGUMENT ................................................................................................................................. 4
10 I. THE VICTIM’S OUT-OF-COURT STATEMENTS DO NOT MEET THE
SUPREME COURT’S NARROW DEFINITION OF TESTIMONIAL
OFFICE OF THE UNITED STATES ATTORNEY
11 EVIDENCE UNDER CRAWFORD V. WASHINGTON 4
12 A. The Holding of Crawford v. Washington Is A Narrow One, Limiting
The Accepted Definition Of “Testimonial” 5
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
B. The Victim’s Statements Are Not Testimonial Evidence Under
(213) 555-1200
Crawford v Washington Because There Was No Police Interrogation 6
14
C. The Ninth Circuit Has Held That A Request For Help Is Not A
15 Testimonial Act 7
16 1. Substantial Persuasive Authority Supports This Circuit’s
Position That A Request For Help Is Not A Testimonial Act 8
17
2. The Criminal Charges Pending Against The Defendant Are Not
18 Conditioned Upon A Statement By The Victim 10
19 D. The Victim’s Statements Were Excited Utterances 11
II. EVEN IF THEY ARE TESTIMONIAL EVIDENCE, THE VICTIM’S
20 STATEMENTS ARE EXCEPTIONS TO THE CONFRONTATION
CLAUSE 12
21
A. The Victim’s Statements Are Admissible For Purposes Other Than
22 The Truth Of The Matter Asserted - Not Hearsay 12
23 III. THERE ARE NO OTHER PROCEDURAL OR CONSTITUTIONAL BARS
TO THE VICTIM’S STATEMENTS 14
24
A. Absent A Confrontation Clause Bar, Ohio v. Roberts Controls The
25 Admissibility of Hearsay Evidence Against Criminal Defendants 14
B. The Victim’s Statements Are Admissible Under Ohio v. Roberts 15
26
1. The Victim’s Excited Utterance Is A Firmly Rooted Hearsay
27 Exception 15
28 2. The Context Of The Victim’s Statements Indicates Reliability 15
i
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
C. The Victim’s Statements Are Not Unfairly Prejudicial 15
1
PRAYER FOR RELIEF ............................................................................................................. 16
2
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
11
12
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
(213) 555-1200
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
ii
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 TABLE OF AUTHORITIES
2 FEDERAL CASES
3 Barber v. Page,
390 U.S. 719 (1968) ................................................................................................ 4
4
Crawford v. Washington,
5 124 S. Ct. 1354 (2004) ...................................................................................passim
6
Idaho v. Wright,
497 U.S. 805 (1990) .............................................................................................. 15
7 Leavitt v. Arave,
8
383 F.3d 809 (9th Cir. 2004) ...................................................................7, 8, 11, 15
Luce v. United States,
9 469 U.S. 38 (1984) .................................................................................................. 1
10
Ohio v. Roberts,
448 U.S. 56 (1980) ..........................................................................................14, 15
OFFICE OF THE UNITED STATES ATTORNEY
11 Tennessee v. Street,
12
471 U.S. 409 (1985) .............................................................................................. 13
United States v. Rambo,
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
74 F.3d 948 (9th Cir. 1996) ..................................................................................... 1
(213) 555-1200
14 United States v. Stone,
222 F.R.D. 334 (E.D.Tenn. 2004) ......................................................................... 13
15 United States v. Taylor,
16 328 F. Supp. 2d 915 (N.D.Ind. 2004) ................................................................... 13
17 FEDERAL STATUTES & ADMINISTRATIVE CODES
18
18 U.S.C. § 1342 ........................................................................................................ 1
FED. R. CRIM. P. 12 .................................................................................................... 1
19 FED. R. CRIM. P. 57 .................................................................................................... 1
20 FED. R. EVID. 403 ..................................................................................................... 15
FED. R. EVID. 803(2) ................................................................................................ 15
21 U. S. DIST. CT. RULES C.D.CAL. LOCAL CIV RULE 7-3 .............................................. 1
22
CONSTITUTIONS
23 U.S. CONST. AMEND. VI.............................................................................................. 7
24 STATE CASES
25 Cassidy v. State,
149 S.W.3d 712 (Tex. Ct. App. 2004) .................................................................... 9
26
Commonwealth v. Eichele,
27 66 Pa. D. & C.4th 460 (Pa. Com. Pl. 2004) .......................................................... 13
28
iii
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1
Fowler v. State,
809 N.E.2d 960 (Ind. Ct. App. 2004) ..............................................................10, 11
2 Hammon v. State,
3
809 N.E.2d 945 (Ind. Ct. App. 2004) ................................................................ 9, 11
People v. Compan,
4 100 P.3d 533 (Colo. Ct. App. 2004) ..................................................................... 12
5 People v. Gomez,
12 Cal. Rptr. 3d 398 (Ct. App. 2004) .................................................................... 13
6 People v. McPherson,
7 687 N.W.2d 370 (Mich. Ct. App. 2004) ............................................................... 13
People v. Pantoja,
8 18 Cal. Rptr. 3d 492 (Ct. App. 2004) .................................................................... 11
9 People v. Reynoso,
781 N.Y.S.2d 284 (N.Y. App. Div. 2004) ............................................................ 13
10 People v. Thompson,
812 N.E.2d 516 (Ill. App. Ct. 2004) ..................................................................... 11
OFFICE OF THE UNITED STATES ATTORNEY
11
Rogers v. State,
12 814 N.E.2d 695 (Ind. Ct. App. 2004) ................................................................ 9, 11
333 S. Grand Avenue, Suite 1200
13 State v. Barnes,
Los Angeles, CA 90012
854 A.2d 208 (Me. 2004) .................................................................................. 8, 11
(213) 555-1200
14 State v. Blackstock,
15 598 S.E.2d 412 (N.C. Ct. App. 2004) ................................................................... 14
State v. Clark,
16 598 S.E.2d 213 (N.C. Ct. App. 2004) ................................................................... 13
17 State v. Corella,
18 Cal. Rptr. 3d 770 (Ct. App. 2004) ............................................................8, 9, 12
18 State v. Dedman,
19 102 P.3d 628 (N.M. 2004) .................................................................................... 14
State v. Forrest,
20 596 S.E.2d 22 (N.C. Ct. App. 2004) ..................................................................... 11
21 State v. Orndorff,
95 P.3d 406 (Wash. Ct. App. 2004) ...................................................................... 12
22 State v. Rivera,
23 844 A.2d 191 (Conn. 2004)................................................................................... 14
24 STATE STATUTES & ADMINISTRATIVE CODES
25 CAL. PENAL CODE § 273.5 (West 2004) .............................................................. 3, 10
OR. REV. STAT. § 40.460(18)(b) (2004) .............................................................10, 11
26
OTHER MATERIALS
27
Jessica Smith, Confrontation After Crawford v. Washington, University of North
28 Carolina School of Government and Law, at
iv
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1
http://ncinfo.iog.unc.edu/faculty/smithjess/pdfs/200410crawfordjsmith.pdf
(visited Jan. 19, 2005) ........................................................................................... 14
2 Motion for Leave to File and Brief Amicus Curiae of Law Professors Sherman J.
3
Clark, James J. Duane, Richard D. Friedman, Norman Garland, et. al. at 7 & 23,
Crawford v. Washington, 124 S. Ct. 1354 (2004) .................................................. 4
4
5
6
7
8
9
10
OFFICE OF THE UNITED STATES ATTORNEY
11
12
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
(213) 555-1200
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 NOTICE OF MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF
2 RECORD
3 Plaintiff, by counsel, for its Motion in Limine to Include Victim‟s Out-Of-
4 Court Statements hereby moves this Court for an order including Victim‟s out-of-
5 court statements to responding and investigating Police officers. This motion is
6 made following the conference of counsel which took place on December 27, 2004
7 pursuant to U. S. DIST. CT. RULES C.D.CAL. LOCAL CIV RULE 7-3 as adopted under
8 FED. R. CRIM. P. 57 . Plaintiff respectfully submits the following Suggestions.
9
10 STATEMENT OF JURISDICTION
OFFICE OF THE UNITED STATES ATTORNEY
11 This is a pre-trial evidentiary motion in a case being prosecuted for an
12 offense committed on federal land and charged against the laws of the State of
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
California, of which the District Court of the Central District of California has
(213) 555-1200
14 subject matter jurisdiction pursuant to 18 U.S.C. § 1342.
15
16 STANDARD OF REVIEW
17 Pre-trial evidentiary motions are matters of discretion for the trial court.
18 United States v. Cook, 608 F.2d 1175, 1186 (9th Cir. 1979). Motions in limine are
19 well recognized in practice and by case law. Id. See also Luce v. United States,
20 469 U.S. 38, 41 (1984) (authority for motions in limine may be implied from the
21 court's inherent power to manage the course of trials); FED. R. CRIM. P. 12. Grant
22 or denial of a motion in limine is within the trial court‟s sound discretion and is
23 rarely disturbed on appeal. United States v. Rambo, 74 F.3d 948, 955 (9th Cir.
24 1996).
25
26 FACTS
27 1. At approximately 1:25 PM on or about November 10, 2004, Sergeant
28 Progg, a police officer from the Base Police Department, was flagged down by a
1
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 female Black, later identified as Shiela M., Victim, who stated that she was beaten
2 by her boyfriend.
3 2. At approximately 1:30 PM on or about November 10, 2004, uniformed
4 officers Pearn and Peese arrived on scene in response to Sergeant Progg‟s call for
5 back up.
6 3. Officer Peese interviewed the Victim who stated that at approximately
7 1:00 PM (30 minutes prior to the interview) she was physically beaten by
8 Defendant, her boyfriend of approximately 14 years and the father of her two
9 children. Victim further stated that the physical abuse resulted from a domestic
10 dispute involving her trips to a nearby liquor store to purchase beer for Defendant.
OFFICE OF THE UNITED STATES ATTORNEY
11 Victim claimed that Defendant knocked her unconscious and left her in an alley
12 near the liquor store. Victim also stated that the Victim and Defendant lived
333 S. Grand Avenue, Suite 1200
13 together off and on with their two children at various motels in the area. The
Los Angeles, CA 90012
(213) 555-1200
14 children were not at the scene.
15 4. Officer Peese noted multiple lacerations to the Victim‟s face and neck,
16 and extensive swelling to her right eye. Victim was treated at the scene by
17 Paramedics but refused to be transported to the hospital for further treatment and
18 observation. Victim refused to be photographed.
19 5. Officer Peese then interviewed Carlos Wosas, Witness, who stated that at
20 approximately 1:15 PM on November 10, 2005 he observed Defendant follow
21 Victim into a nearby liquor store and punch and strike Victim in the back of the
22 head with his closed right fist.
23 6. Officer Pearn interviewed Zeida Wasquez, Witness, who stated that at
24 approximately 1:20 PM on November 10, 2005 she exited her apartment and
25 observed a female Black, later identified as the Victim, lying on the sidewalk in an
26 alley near the liquor store. Wasquez stated that the Victim appeared to be
27 unconscious and the Defendant was standing over her.
28 7. While searching for additional witnesses, Officer Pearn and Sergeant
2
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 Progg observed Defendant in the alley behind the liquor store and arrested him.
2 8. Defendant admitted having an altercation with Victim that evening and
3 admitted making physical contact with Victim during that altercation. Defendant
4 claims that such contact was in self defense.
5 9. Defendant did not receive any medical treatment at the Division Jail
6 Dispensary.
7 10. Officer Pearn returned to the scene at approximately 6:20 PM on
8 November 10, 2005 at which time he observed the Victim loitering in the alley.
9 Officer Pearn observed scratches to the Victim‟s neck and her right eye was
10 swollen shut.
OFFICE OF THE UNITED STATES ATTORNEY
11 11. Commissioner Jumar issued an Emergency Protective Order for the
12 Victim, which prohibits the Defendant from coming within 100 yards of the Victim
333 S. Grand Avenue, Suite 1200
13 or her residence.
Los Angeles, CA 90012
(213) 555-1200
14 12. On December 27, 2004, the United States indicted Defendant, and
15 charged him with one count of spousal abuse under CAL. PENAL CODE § 273.5
16 (West 2004).
17 13. Victim has disappeared from the area and cannot be located despite the
18 best efforts of the Police and prosecutors.
19
20 SUMMARY OF LEGAL ARGUMENT
21 The People seek to admit into evidence the Victim‟s out-of-court statements
22 to Officer Peese. These statements do not offend the Defendant‟s Confrontation
23 Clause rights under the Sixth Amendment, because they are non-testimonial and
24 the Victim is not available to testify. See Crawford v. Washington, 124 S. Ct. 1354
25 (2004)
26 The Victim‟s statements are non-testimonial because they were voluntarily
27 given in a field interview initiated by the Victim, for the purpose of receiving aid
28 and assistance, and were not reasonably expected to be used prosecutorially. The
3
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 Victim‟s interview statements bear none of the hallmarks of the “station house”
2 custodial police interrogations described in Crawford and decried by legal
3 scholars. See, e.g., Motion for Leave to File and Brief Amicus Curiae of Law
4 Professors Sherman J. Clark, James J. Duane, Richard D. Friedman, Norman
5 Garland, et. al. at 7 & 23, Crawford v. Washington, 124 S. Ct. 1354 (2004)
6 (describing the constitutional impact of “station house” interrogations and
7 advocating a testimonial approach to Confrontation Clause jurisprudence).
8 The Victim is unavailable because she has disappeared from the area and
9 cannot be located despite the best efforts of the Police and prosecutors. See
10 Crawford v. Washington, 124 S. Ct. at 1360 (witness is unavailable "only if the
OFFICE OF THE UNITED STATES ATTORNEY
11 witness is demonstrably unavailable to testify in person."). See also Barber v.
12 Page, 390 U.S. 719, 725 (1968) (A witness is considered unavailable for purposes
333 S. Grand Avenue, Suite 1200
13 of the Confrontation Clause if the "prosecutorial authorities have made a good faith
Los Angeles, CA 90012
(213) 555-1200
14 effort to obtain his presence at trial.").
15 However, even if the Victim‟s statements are deemed testimonial by this
16 Court, they may be admitted into evidence not conditioned upon the truth of the
17 statements. Testimonial statements not offered for the truth of the matter asserted
18 are exceptions to the Confrontation Clause because they are not hearsay. Crawford
19 at 1369 n.9. Thus, they might be admitted to corroborate the testimony of the two
20 eyewitnesses, to impeach the Defendant‟s testimony, to demonstrate a pattern of
21 abuse by the Defendant, and to establish the Police Officers‟ collective knowledge
22 supporting probable cause for the arrest. In short, there is no legal bar the
23 admission of the Victim‟s statements because they are not testimonial, the Victim
24 is not available to testify, and regardless, the statements are not being offered for
25 their truth.
26
27 ARGUMENT
28 I. The Victim’s Out-Of-Court Statements Do Not Meet The Supreme
4
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1
Court’s Narrow Definition Of Testimonial Evidence Under Crawford v.
Washington
2
3 A. The Holding of Crawford v. Washington Is A Narrow One,
Limiting The Accepted Definition Of “Testimonial”
4
5 In Crawford, the United States Supreme Court held that when an out-
6 of-court statement of an unavailable witness is testimonial, the Sixth Amendment
7 requires that the accused be given a prior opportunity to cross-examine the witness
8 before a hearsay statement can be admitted at trial. Id. at 1370. The Court noted
9 that the underlying purpose of the Confrontation Clause was to preclude the use of
10 ex parte examinations against the accused. Id. at 1363. Although the Court
declined to provide a comprehensive definition of the term “testimonial,” it
OFFICE OF THE UNITED STATES ATTORNEY
11
12 indicated that the term includes three categories of evidence: (1) prior testimony at
333 S. Grand Avenue, Suite 1200
13 a preliminary hearing, before a grand jury, or at a former trial, Id. at 1374; (2) plea
Los Angeles, CA 90012
(213) 555-1200
14 allocutions showing existence of a conspiracy, Id. at 1372; and (3) police
15 interrogations, Id. at 1374.
16 The Court also noted that it used the term interrogation “in its
17 colloquial, rather than any technical legal, sense.” Id. at 1365 n.4. Also, the Court
18 identified four categories of non-testimonial evidence: (1) off-hand remarks, Id. at
19 1364 (“An off-hand, overheard remark . . . bears little resemblance to the civil-law
20 abuses the Confrontation Clause targeted.”); (2) a casual remark to an
21 acquaintance, Id. at 1364 (“Testimony . . . is typically a[] solemn declaration or
22 affirmation made for the purpose of establishing or proving some fact. . . . An
23 accuser who makes a formal statement to government officers bears testimony in a
24 sense that a person who makes a casual remark to an acquaintance does not.” Id. at
25 1364 (citation and quotation omitted); (3) business records, Id. at 1367; and (4)
26 statements in furtherance of a conspiracy, Id.
27 The Court went no further than this in delineating what constitutes
28 testimonial versus non-testimonial evidence. It noted that “[v]arious formulations
5
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 of . . . „testimonial‟ statements exist,” including (1) materials that are the functional
2 equivalent of ex parte in-court testimony such as affidavits, custodial
3 examinations, prior testimony and similar pretrial statements that declarants would
4 reasonably expect to be used prosecutorially; (2) extrajudicial statements contained
5 in formalized testimonial materials, such as affidavits, depositions, prior testimony,
6 or confessions; and (3) statements that were made under circumstances which
7 would lead an objective witness reasonably to believe that the statement would be
8 available for use at a later trial. Id. at 1364. Careful application to the facts of this
9 case of this guidance and subsequent lower Court interpretations support the
10 conclusion that Victim‟s out-of-court statements to Officer Pease were non-
OFFICE OF THE UNITED STATES ATTORNEY
11 testimonial.
12
333 S. Grand Avenue, Suite 1200
13 The Victim’s Statements Are Not Testimonial Evidence Under
Los Angeles, CA 90012
B.
(213) 555-1200
14 Crawford v Washington Because There Was No Police
Interrogation
15
16 The Victim‟s statements to Police were a far cry from the “station
17 house” custodial interrogations proscribed under Crawford. In Crawford, the
18 Defendant‟s wife was subjected to a tape recorded interrogation by skilled Police
19 detectives investigating Defendant‟s role in the stabbing of a third party victim.
20 The police interrogation in Crawford utilized structured questioning at the police
21 station with the specific purpose of eliciting evidence of the defendant‟s
22 culpability. Prosecutors planned to introduce the statements as evidence in the
23 prosecution of Defendant for attempted murder. The nature, timing, and purpose
24 of the Victim‟s statements in the case at hand are readily distinguishable from
25 Crawford.
26 In the current case, the Victim‟s statements to Police were initiated by
27 the Victim and involved an offense committed against the Victim, not a third party.
28 The distinction is important because “Sylvia Crawford made her statement while in
6
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 police custody, herself a potential suspect in the case.” Crawford at 1372. The
2 Victim in the current case was never suspected of beating herself into
3 unconsciousness. The Victim in the current case offered no statements regarding
4 the Defendant‟s conduct toward anyone but herself. The Victim made voluntary,
5 narrative statements to a uniformed patrol officer for the sole purpose of receiving
6 aid and protection just minutes after being beaten unconscious and left in an alley
7 by the Defendant. Paramedics were summoned and Victim received the aid and
8 protection that she sought. Victim never lodged a formal complaint against
9 Defendant, never set foot inside of a police station, and never again spoke to any
10 government agent after November 10, 2004. The Victim could not reasonably
OFFICE OF THE UNITED STATES ATTORNEY
11 have anticipated that her plea for help would later be used in the criminal
12 prosecution of Defendant.
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
C. The Ninth Circuit Has Held That A Request For Help Is Not A
(213) 555-1200
14 Testimonial Act
15 The Confrontation Clause does not apply to the Victim‟s statements
16 because the Victim merely asked for help and could not reasonably have expected
17 her words to be used prosecutorially. The constitutional text is clear:
18
[i]n all criminal prosecutions, the accused shall enjoy the right … to
19 be confronted with the witnesses against him.
U.S. CONST. AMEND. VI.
20
21 As the Sixth Amendment makes clear—and Crawford reaffirms, See
22 124 S. Ct. at 1364—the dispositive question is whether the use of the Victim‟s out-
23 of-court statements for their truth against the Defendant would make her a witness
24 against him. In a case on-point, the Ninth Circuit held that a victim‟s out-of-court
25 request for help to police is non-testimonial evidence. Leavitt v. Arave, 383 F.3d
26 809, 830 & n.22 (9th Cir. 2004) In Leavitt, the victim was frightened by a prowler
27 who tried to break into her house. The victim called the police and spoke to
28 dispatchers and police officers, stating among other things that she thought the
7
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 prowler was the defendant. The victim was unavailable to testify at trial because
2 she had been murdered. In admitting her statements to the police, the Court of
3 Appeals reasoned that a plea for help is not a testimonial evidence: “Although the
4 question is close, . . . [w]e do not think that [the victim‟s] statements to the police
5 she called to her home [are testimonial.] [The victim], not the police, initiated their
6 interaction. She was in no way being interrogated by them but instead sought their
7 help in ending a frightening intrusion into her home.”). Id. at 830.
8 1. Substantial Persuasive Authority Supports This Circuit’s
9 Position That A Request For Help Is Not A Testimonial Act
10 Although not binding upon this Court, post-Crawford State
Court decisions from several jurisdictions have also held that victims‟ statements to
OFFICE OF THE UNITED STATES ATTORNEY
11
12 police are not testimonial. The Maine Supreme Court addressed the issue in State
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
v. Barnes, 854 A.2d 208, 209-212 (Me. 2004) In that case, an assault victim drove
(213) 555-1200
14 herself to the police station of her own volition and not at the request of the police.
15 While crying and sobbing, and still under the stress of the alleged assault, the
16 victim answered police questions which were not structured, but simply targeted at
17 determining why she was distressed. Police determined that the victim was
18 seeking safety and aid. The victim was unavailable to testify at the defendant‟s
19 trial because she was subsequently murdered. The Court held that the victim‟s
20 statements to police were admissible as non-testimonial evidence. Id.
21 In an assault case similar to that at bar, the California Court of Appeal
22 held that preliminary questions asked at the scene of a crime shortly after it has
23 occurred do not rise to the level of an interrogation. State v. Corella, 18 Cal. Rptr.
24 3d 770 (Ct. App. 2004) (statements made by assault victim to officer who arrived
25 on the scene when victim was crying, distraught and appeared to be in pain were
26 not testimonial; victim‟s “spontaneous statements describing what had just
27 happened did not become part of a police interrogation merely because Officer
28 Diaz was an officer and obtained information from [the victim].” Id. (emphasis
8
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 added).
2 The Texas Court of Appeals concluded that statements given by an
3 assault victim describing his assailant and made to police officer at hospital one
4 hour after assault were not testimonial. Cassidy v. State, 149 S.W.3d 712, 716
5 (Tex. Ct. App. 2004).
6 In what is quickly becoming the majority post-Crawford position on
7 the issue of victims‟ statements to police, the Indiana Court of Appeals has thrice
8 ruled that such are non-testimonial. In Hammon v. State, 809 N.E.2d 945 (Ind. Ct.
9 App. 2004) the Court reasoned that a domestic battery victim‟s statements to
10 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
OFFICE OF THE UNITED STATES ATTORNEY
11
12 statement was made in direct response to an officer‟s questions. Id.
333 S. Grand Avenue, Suite 1200
13 Drawing a clear distinction between police interrogation and police
Los Angeles, CA 90012
(213) 555-1200
14 questioning, the Indiana Court held that “[W]hen police arrive . . . in response to a
15 request for assistance and begin informally questioning those nearby immediately
16 thereafter in order to determine what has happened, statements given in response
17 thereto are not „testimonial.‟ Whatever else police ‘interrogation’ might be, we do
18 not believe that word applies to preliminary investigatory questions asked at the
19 scene of a crime shortly after it has occurred. Such interaction with witnesses on
20 the scene does not fit within a lay conception of police „interrogation,‟ bolstered by
21 television, as encompassing an „interview‟ in a room at the stationhouse. It also
22 does not bear the hallmarks of an improper „inquisitorial‟ practice.” Id. at 952
23 (emphasis added).
24 Consistent with Hammon, the Indiana Court of Appeals subsequently
25 held that an assault victim‟s statements describing the incident given to a police
26 officer within seven minutes of the officer‟s arrival at the scene were not
27 testimonial. Rogers v. State, 814 N.E.2d 695 (Ind. Ct. App. 2004).
28 In its third ruling on this same issue, the Indiana Court of Appeals
9
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 addressed a case where a police officer, responding to a 911 domestic disturbance
2 call arrived at the scene in approximately 5 minutes and saw the victim with blood
3 coming from her nose and what appeared to be blood on her shirt and pants. The
4 officer asked the victim what happened and the victim, while moaning and crying,
5 stated that defendant punched her; the officer then arrested the defendant. In its
6 decision to admit the victim‟s statements as non-testimonial evidence, the Court
7 reasoned that the statement was not given in a formal setting or during any type of
8 pretrial hearing or deposition, was not contained within a formalized document of
9 any kind, and the questioning did not qualify as classic police interrogation.
10 Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004).
OFFICE OF THE UNITED STATES ATTORNEY
11 2. The Criminal Charges Pending Against The Defendant Are
12 Not Conditioned Upon A Statement By The Victim
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
At the discretion of the District Attorney, the Defendant was
(213) 555-1200
14 charged under California‟s domestic violence statute, CAL. PENAL CODE § 273.5.
15 CAL. PENAL CODE § 273.5 is a criminal statute which punishes spousal abuse and a
16 charge thereunder is not conditioned upon a formal complaint by the victim. The
17 Victim never lodged a formal complaint in this case, and charges were brought
18 based upon the overwhelming evidence of the Defendant‟s guilt, including the
19 statements of the investigating officers, paramedics, and corroborating
20 eyewitnesses. Similarly, the restraining order against the Defendant was not
21 supported by or conditioned upon a complaint or affidavit from the Victim‟s. It
22 was issued based upon the same facts and information used to support the
23 Defendant‟s arrest.
24 The People concede that formal domestic violence accusations
25 under some reporting statutes as adopted in some jurisdictions are testimonial
26 almost by definition. For example, OR. REV. STAT. § 40.460(18)(b) (2004)
27 conditions admissibility on the statement “accusing someone of criminal behavior.
28 being made within 24 hours of alleged event; and being either recorded, either
10
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 electronically or in writing or made to a peace officer . . . corrections officer, youth
2 corrections officer, parole [or] probation officer, emergency medical technician or
3 firefighter.” Id. Similarly, victims‟ formal statements in support of restraining
4 orders might also be deemed testimonial. See e.g. People v. Pantoja, 18 Cal. Rptr.
5 3d 492 (Ct. App. 2004) (declaration in support of protection order testimonial);
6 People v. Thompson, 812 N.E.2d 516 (Ill. App. Ct. 2004) (wife‟s statements in
7 application for a protection order testimonial).
8 The facts of the present case are distinguishable from those holdings
9 in that the Victim‟s statements were made informally, within minutes of the abuse,
10 voluntarily, upon her own initiative (flagging down Sergeant Progg), in an attempt
OFFICE OF THE UNITED STATES ATTORNEY
11 to obtain aid and protection with no reasonable expectation of a criminal
12 prosecution of Defendant. Under the rationale of Leavitt v. Arave and the similar
333 S. Grand Avenue, Suite 1200
13 cases discussed supra, the Victim‟s pleas for help are not testimonial.
Los Angeles, CA 90012
(213) 555-1200
14 D. The Victim’s Statements Were Excited Utterances
15 Although undecided in this jurisdiction, some Courts have found
16 statements to be non-testimonial when they exhibit the hallmarks of an excited
17 utterance. As one court put it: “Conceptually, . . . excited utterance[s are] at the
18 opposite end of the hearsay spectrum from testimonial hearsay. . . . [They] do not
19 exhibit any of the hallmarks of a testimonial statement: one which is solemn,
20 deliberate and anticipated to be used formally.” Commonwealth v. Eichele, 66 Pa.
21 D. & C. 4th 460, 468-469 (Pa. Com. Pl. 2004). In addition to the Indiana
22 Appellate Court decisions discussed supra (Hammon, Fowler v. State, Rogers v.
23 State), a number of Courts have issued opinions consistent with Eichele. See State
24 v. Forrest, 596 S.E.2d 22 (N.C. Ct. App. 2004) (victim‟s “spontaneous” statement
25 to a police officer “immediately after a rescue” was non-testimonial); State v.
26 Barnes, 854 A.2d 208, 209-212 (Me. 2004) (murder victim‟s statements to police
27 pertaining to defendant‟s prior assault on her and threats to kill her were not
28 testimonial; statements were made after declarant drove herself to the police station
11
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 and while crying and sobbing; declarant went to the station on her own and not at
2 the request of the police, the statements were made while still under the stress of
3 the alleged assault and the questions asked were targeted at determining why she
4 was distressed and finally, declarant was not responding to structured police
5 questioning but instead seeking safety and aid).
6 Similar decisions were reached in State v. Corella, 18 Cal. Rptr. 3d
7 770 (Ct. App. 2004) (statements made by assault victim to officer who arrived on
8 the scene when victim was crying, distraught and appeared to be in pain were not
9 testimonial; victim‟s “spontaneous statements describing what had just happened
10 did not become part of a police interrogation merely because Officer Diaz was an
OFFICE OF THE UNITED STATES ATTORNEY
11 officer and obtained information from [the victim]. Preliminary questions asked at
12 the scene of a crime shortly after it has occurred do not rise to the level of an
333 S. Grand Avenue, Suite 1200
13 interrogation”); State v. Orndorff, 95 P.3d 406, 408 (Wash. Ct. App. 2004)
Los Angeles, CA 90012
(213) 555-1200
14 (declarant‟s excited utterance to victim that she saw a man with a pistol in the
15 house, saw two men leave the house and tried to call 911 was non-testimonial;
16 statement was a spontaneous declaration made in response to a stressful incident
17 she was experiencing); People v. Compan, 100 P.3d 533 (Colo. Ct. App. 2004)
18 (domestic violence victim‟s excited utterances to her friend about her husband‟s
19 conduct were not testimonial; the statements were not made to a law enforcement
20 or judicial officer, although they were not "casual or off-hand" because the victim
21 was distraught, they were not the kind of "solemn or formal" declarations that
22 Crawford associated with testimonial statements, and were not made for the
23 purpose of establishing facts in a subsequent proceeding).
24 II. Even If They Are Testimonial Evidence, The Victim’s Statements Are
Exceptions To The Confrontation Clause
25
26 A. The Victim’s Statements Are Admissible For Purposes Other
Than The Truth Of The Matter Asserted - Not Hearsay
27
28 The Confrontation Clause does not bar the use of testimonial
12
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 statements for purposes other than establishing the truth of the matter asserted.
2 Crawford, 124 S. Ct. at 1369 n.9. See Tennessee v. Street, 471 U.S. 409, 414
3 (1985). The People seek to introduce through the testimony of Officer Peese, the
4 nature and circumstances of his interaction with the Victim on the date in question.
5 The objectives of Officer Peese‟s testimony would be to (1) to corroborate the
6 eyewitness testimony of Carlos Wosas and Zeida Wasquez; (2) to impeach the
7 Defendant‟s testimony; (3) to demonstrate a pattern of abuse of the Victim by the
8 Defendant; and (4) to establish the Police Officers‟ collective knowledge
9 supporting probable cause for their arrest of the Defendant. None of these
10 purposes require that the Victim‟s statements be true.
OFFICE OF THE UNITED STATES ATTORNEY
11 These types of exceptions to the Confrontation Clause are explicit
12 under Crawford and have been duly recognized in a number of post-Crawford
333 S. Grand Avenue, Suite 1200
13 opinions rendered in other jurisdictions. See United States v. Stone, 222 F.R.D.
Los Angeles, CA 90012
(213) 555-1200
14 334 (E.D.Tenn. 2004) (even if statements used by expert to form opinion were
15 testimonial, they were offered for purpose other than the truth of the matter
16 asserted and therefore were not covered by the Confrontation Clause); United
17 States v. Taylor, 328 F. Supp. 2d 915, 926 (N.D.Ind. 2004) (use of statements for
18 impeachment purposes does not implicate the Confrontation Clause); People v.
19 McPherson, 687 N.W.2d 370 (Mich. Ct. App. 2004) (same); People v. Reynoso,
20 781 N.Y.S.2d 284 (N.Y. App. Div. 2004) (statement admitted to show officer‟s
21 state of mind was not subject to the Confrontation Clause); People v. Gomez, 12
22 Cal. Rptr. 3d 398, 406 (Ct. App. 2004) (hearsay statements of police officers
23 introduced at suppression hearing to establish collective knowledge of officers
24 supporting probable cause was non-testimonial); Commonwealth v. Eichele, 66 Pa.
25 D. & C. 4th 460 at 468-469 (to the extent witness testified that she heard declarant
26 asking defendant to leave, “this is the equal of a command or verbal act and not
27 hearsay” and thus Crawford does not apply); State v. Clark, 598 S.E.2d 213 (N.C.
28 Ct. App. 2004) (noting but not applying this exception because the trial judge did
13
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 not give a limiting instruction; “[b]ecause the jury could have considered this
2 evidence for the truth of the matter asserted, we cannot presume it was offered and
3 received as corroborating evidence”).
4 III. There Are No Other Procedural or Constitutional Bars To The Victim’s
5 Statements
6 A. Absent A Confrontation Clause Bar, Ohio v. Roberts Controls The
Admissibility of Hearsay Evidence Against Criminal Defendants
7
8 In Crawford, the Court stated that it has "considered reliability factors
9 beyond prior opportunity for cross-examination when the hearsay statement at
10 issue was not testimonial." Crawford at 1368. The Court did not overrule Ohio v.
OFFICE OF THE UNITED STATES ATTORNEY
11 Roberts, 448 U.S. 56 (1980), and it did not reply to the dissent's assertion that it
12 had done so. Crawford at 1374 (Rehnquist, C.J., dissenting). Rather, the Court
333 S. Grand Avenue, Suite 1200
13 stated that “[w]here non-testimonial hearsay is at issue, it is wholly consistent with
Los Angeles, CA 90012
(213) 555-1200
14 the Framers' design to afford the States flexibility in their development of hearsay
15 law--as does Roberts, and as would an approach that exempted such statements
16 from Confrontation Clause scrutiny altogether.” Id. at 1374. In other words,
17 Roberts still applies to non-testimonial hearsay, though the Court may later
18 conclude that the Sixth Amendment is not concerned with non-testimonial hearsay.
19 Although the freshness of Crawford leaves no binding cases directly
20 on point, several state courts and legal scholars have concluded the same. See State
21 v. Dedman, 102 P.3d 628, 636-637 (N.M. 2004) (Ohio v. Roberts still good law);
22 State v. Rivera, 844 A.2d 191, 202 (Conn. 2004) (concluding that Roberts remains
23 in place for determining the admissibility of non-testimonial hearsay); State v.
24 Blackstock, 598 S.E.2d 412, 423 n.2 (N.C. Ct. App. 2004) ("Roberts remains good
25 law regarding non-testimonial statements."); Jessica Smith, Confrontation After
26 Crawford v. Washington, University of North Carolina School of Government and
27 Law, at http://ncinfo.iog.unc.edu/faculty/smithjess/pdfs/200410crawfordjsmith.pdf
28 (visited Jan. 19, 2005) (if the evidence is non-testimonial, apply Roberts).
14
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 B. The Victim’s Statements Are Admissible Under Ohio v. Roberts
2 Admission of hearsay statements against a criminal defendant violates
3 the Confrontation Clause unless the statement is admitted pursuant to a "firmly
4 rooted hearsay exception" or exhibits "particularized guarantees of
5 trustworthiness." Roberts, 448 U.S. at 66. The Victim‟s statements easily qualify
6 under either prong of this test.
7 1. The Victim’s Excited Utterance Is A Firmly Rooted
8 Hearsay Exception
9 The Victim‟s voluntary statements were given within 30
10 minutes of her abuse and within 15 minutes of a being knocked unconscious. The
OFFICE OF THE UNITED STATES ATTORNEY
11 police were on scene only minutes before they began interviewing Victim. This
12 timeline of events is supported by the statements of the responding police officers,
333 S. Grand Avenue, Suite 1200
13 paramedics, and eyewitnesses. The temporal and physical proximity of these
Los Angeles, CA 90012
(213) 555-1200
14 events ensure that by any objective standard, Victim‟s statements were part of the
15 res gestae, and would qualify as a hearsay exception for excited utterances under
16 FED. R. EVID. 803(2). This exception is firmly rooted. Idaho v. Wright, 497 U.S.
17 805, 806 (1990); Leavitt, 383 F.3d 809.
18 2. The Context Of The Victim’s Statements Indicates
19 Reliability
20 There is overwhelming evidence that the Defendant abused the
21 Victim. Carlos Wosas, Witness, will testify that he observed Defendant strike the
22 victim on the back of the head with his closed fist. The physical and temporal
23 proximity of the Victim‟s injuries and call for help, the Police Officers‟ and
24 Paramedics‟ observations of her cuts, bruises; and the corroborating testimony of
25 eyewitnesses are more than adequate indicia of reliability. Any implication that a
26 cut, bruised, bleeding, semi-conscious Victim haled down Sergeant Progg in order
27 to offer false statements would at best strain credulity.
28 C. The Victim’s Statements Are Not Unfairly Prejudicial
15
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 The Victim‟s statements are not unfairly prejudicial pursuant to FED.
2 R. EVID. 403, whereby their probative value substantially outweighs the danger of
3 unfair prejudice, confusion of the issues, or misleading the jury. The Defendant
4 concedes involvement in an altercation with Victim on the day in question.
5 Commissioner Jumar‟s issuance of a protective order standing alone is a judicial
6 determination that Defendant committed abuse. Based upon the non-testimonial
7 nature of the statements as discussed supra, and the absence of any other
8 constitutional, hearsay or procedural bar, the probative value discussed above
9 substantially outweighs any theoretical danger of unfair prejudice.
10 PRAYER FOR RELIEF
OFFICE OF THE UNITED STATES ATTORNEY
11 WHEREFORE, Plaintiff respectfully prays that this Motion in Limine will
12 be granted, and that this Court direct that the Victim‟s out-of-court statements to
333 S. Grand Avenue, Suite 1200
13 Police be held admissible evidence in the criminal proceedings against Defendant.
Los Angeles, CA 90012
(213) 555-1200
14
15 Respectfully submitted,
16
Dated: _____________ OFFICE OF THE UNITED STATES ATTORNEY
17
18 ____
19 By SCALE II ANONYMOUS ID #364375
Attorney for PLAINTIFF and MOVING PARTY
20
21
22
23
24
25
26
27
28
16
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
PROOF OF SERVICE
1
I, MONICA TRUJILLO, declare as follows:
2
3
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
4 Office of Los Angeles, 333 S. Grand Avenue, Suite 1200, Los Angeles, CA 90012.
5 On January 20, 2005, I served the attached:
6
NOTICE OF MOTION AND PLAINTIFF’S MOTION IN LIMINE TO
7
INCLUDE VICTIM’S OUT-OF-COURT STATEMENTS
8
9 in the interested parties in said action, by placing a true copy thereof in sealed
10 envelope(s) addressed as follows:
OFFICE OF THE UNITED STATES ATTORNEY
11 Norman S. Garland, Attorney at Law
12 Southwestern University School of Law
675 S. Westmoreland Avenue, Los Angeles, CA 90005
333 S. Grand Avenue, Suite 1200
13
Los Angeles, CA 90012
(213) 555-1200
14
and served the named document in the manner indicated below:
15
BY MAIL: I caused true and correct copies of the above documents, by
16
following ordinary business practices, to be placed and sealed in envelope(s)
17 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
18
collection and mailing with the United States Postal Service, and in the
19 ordinary course of business, correspondence placed for collection on a
particular day is deposited with the United States Postal Service that same
20
day.
21
I declare under penalty of perjury under the laws of the State of California
22 that the foregoing is true and correct.
23
24
Executed JANUARY 20, 2005, at Los Angeles, California.
25
26
MONICA TRUJILLO
27
28 17
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
1 PROPOSED ORDER GRANTING MOTION IN LIMINE
2
3 UNITED STATES DISTRICT COURT
4 CENTRAL DISTRICT OF CALIFORNIA
5
6 The Motion in limine of Plaintiff UNITED STATES OF AMERICA for an
7 order including Victim‟s out-of-court statements to responding and investigating
8 police officers , was heard by the Court on March 14, 2005. Moving party
9 UNITED STATES OF AMERICA, appeared by counsel ANONYMOUS SCALE
10 II ID #364375; defendant appeared by Counsel Norman Garland.
OFFICE OF THE UNITED STATES ATTORNEY
11
12 The Court having considered the documents before it and the oral argument of
333 S. Grand Avenue, Suite 1200
13 counsel, and being fully advised, finds that the aforementioned out-of-court
Los Angeles, CA 90012
(213) 555-1200
14 statements are not testimonial evidence for purposes of the Confrontation Clause of
15 the Sixth Amendment of the United States Constitution and binding upon the
16 defendant as part of the res gestae; admissible as exceptions to the hearsay rule
17 under Federal Rule of Evidence 803(2) - excited utterances. Wherefore,
18
19 IT IS ORDERED that the motion be and hereby is granted, and that plaintiff
20 and its attorney are instructed that such evidence may be offered at trial.
21
22 DATED: _______
23
24 Consuelo B. Marshall
25 UNITED STATES DISTRICT JUDGE
26
More Free Outlines: http://c.finamore.home.comcast.net or http://finamore.net
27
28 18
PLAINTIFF’S MOTION IN LIMINE TO INCLUDE OUT-OF-COURT STATEMENTS
