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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

• DEFENDANT MOVES TO ADMIT CHARACTER OF NON-DEVIANT SEXUAL BEHAVIOR TOWARD MINORS

• Evidence of the Accused's Character for Non-Deviant Sexual Behavior Towards Children is Admissible

In People v. Stoll (1989) 49 C.3d 1136, 265 Cal.Rptr. 111, the California Supreme Court ruled that a defendant could present of good character to show non-commission of a crime.  The court found that the legislature implicitly endorsed lack of deviance as a relevant character trait in a lewd and lascivious conduct case.

The Absence of a “Disposition” Tends to Prove That Defendant Has Not Committed the Crime. Thus, criminal defendants may use character evidence to prove conduct in conformity with character as provided in Evidence Code §1102.  People v. Stoll, supra at 1159.  This is an exception to the general rule as set forth in Evidence Code §1101 prohibiting use of evidence of a person's s character (by opinion, reputation or specific instances) to prove conduct on a specified occasion. Defendants can offer lack of deviance as circumstantial evidence that a defendant is unlikely to have committed charged acts of molestation.  Ibid.  Stoll contemplates that the testimony is offered by the defendant to suggest that he did not commit the requisite act.  

• The Accused Can Introduce Lay Opinion Character Evidence Of His Non Deviant Sexual Behavior

Evidence Code Section 800 provides:

If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is:

(a) Rationally based on the perception of the witness; and

(b) Helpful to a clear understanding of his testimony.

Lay opinion evidence based on personal observation of defendant's conduct with children is a proper subject of lay opinion testimony and is relevant to a charge of child molest where the opinion is based on long term observation of defendant's consistently normal behavior around children.  People v. McAlpin (1991) 53 C.3d 1289, 283 Cal.Rptr. 382.  

Testimony of lay witnesses not based solely on specific instances in which the defendant could have molested children, but based on long term personal observation of the defendant's consistently normal behavior with children is admissible.  Ibid.  Testimony that the defendant does not have a reputation for being sexually attracted to young girls is relevant and admissible character evidence in a charge of child molest.  Ibid.  The rationale behind this is that evidence that the defendant does not have a bad reputation for relevant character trait (sexual deviancy) is admissible as tending to show he has a good reputation for that trait.  Evidence Code § 1102.  People v. McAlpin, supra.  Reputation evidence is the estimation in which an individual is held.  It is the character imputed to an individual rather than what is actually known of him by the witness or others.  Such testimony does not need to be based on personal observation of the witness.  Id.

Testimony of character witnesses that the defendant has a reputation as a person of high moral sexual character is also relevant and admissible reputation opinion evidence.  Id. 

In the case of Holland vs. Zollner (1894) 102 C 633, 638, 36 P 930, the court first established the use of lay opinion to describe various mental and moral aspects of humanity.  These included temper, fear, anger and excitement. “Love, hatred, sorrow, joy, and various other mental and moral operations, find outward expression, as clear to the observer as any fact coming to his observation, but he can only give expression to the fact by giving to him the ultimate fact, and which for want of a more accurate expression, we call opinion.” Ibid. at 638.

• Conclusion

Lay witnesses who are familiar with the parties can testify as to their personal opinion as to the defendant's character for sexual non-deviancy toward children.  Lay witnesses can testify as to the defendant's reputation for non-deviant sexual character.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

1. INTRODUCTION

By this motion, the defendant seeks leave of the court to introduce evidence and expert testimony of a form of suggestibility know in the literature as group hysteria, or groupthink.  Dr. Annette Ermshar, Ph.D., an expert on suggestibility and group hysteria will testify.  A written report is in preparation, and will be supplied to the prosecution as soon as it is received by the defense.  

Group Hysteria, or Groupthink,  has been described as follows:

Definition:

Groupthink is a psychological phenomenon that can occur in groups of people. It is the process of creating shared beliefs through the positive reinforcement of distorted facts that are amplified through group dynamics and the mechanism of rumor.  

The term has been in use since 1952, and is generally defined as “a pattern of thought characterized by self-deception, forced manufacture of consent, and conformity to group values and ethics.”  (https://www.merriam-webster.com/dictionary /groupthink.)  It is also defined as “the practice of thinking or making decisions as a group in a way that discourages creativity or individual responsibility.”  There are scattered references to the term in judicial decisions.  (See, e.g., Dahl v. Bain Capital Partners, LLC (D. Mass. 2013) 937 F.Supp.2d 119, 126 [referring to “group think” mentality].)

Humans have a strong desire to belong to the group.  The effects of a group dynamic are far reaching in that certain ideas and emotions can start a process of rumor, curiosity, and titillation. “The individuals that comprise the group fail to adequately consider the facts of the situation in order to maintain group cohesiveness.”  (Hogg & Hains, 1998).  In conjunction with this desire, there is often an “in group, out group” mentality, and the “group” may recruit others to go along or reinforce the shared belief.  Rather than critically evaluating information, the group members begin to form quick opinions that match the group consensus.  Mass hysteria can be seen as an extreme example of groupthink.  (Lisa Fritscher, Groupthink, Health Phobias, About.com.)    

The construct of group think is extremely important to consider with respect to allegations of sexual abuse by children and adolescents.  Adolescents will coalesce with other’s memory reports in order to prevent social embarrassment.  It can arise in the context of a school classroom, team sport, social group, and other social situations where there is a desire to maintain group cohesion.  For instance, in a classroom situation where female students unanimously report inappropriate behavior by a teacher but the males do not, the allegations may reflect the desire on the part of the females to maintain group cohesion (i.e., reporting similar abuse).  Certainly, social pressure is part of group hysteria and schools are ideal places for group influence.  Finally, media and authorities serve to reinforce the story.

Suggestive interviewing practices can add fuel to the fire of groupthink.  Those who interview children in the context of child abuse rarely explore alternative hypothesis to explain the allegations.  Such authority groups often conduct one-sided interviews seeking to gather information that abuse occurred and ignoring information that abuse did not occur.  The lack of critical examination of the story by those who interview the alleged victims reinforce adherence to the abuse narrative.      

Examples of Group Hysteria or Groupthink occur regularly in jurisprudence.  The McMartin Preschool prosecutions in Los Angeles are well known.  A short time later, during the ritual sex abuse hysteria in Bakersfield, 14 individuals were sentenced to prison, and subsequently cleared.  (See People v. Pitts (1990) 223 Cal.App.3rd 606; See also MVMO Ritual 

abuse Cases, Bakersfield/Kern County, CA, religioustolerance.org_baker.htm.)  The Salem Witch Trials of 1691-1693 are another classic example.  Many other well know examples have occurred in school classrooms.  In 1965, in Blackburn, England, several school girls complained of dizziness and some fainted.  Within a couple of hours eighty-five girls were rushed to a hospital suffering from “conversion disorder”--another term for group hysteria--in which physiological symptoms affected their central nervous systems in the absence of a physical cause of illness.  In 2011-2012, in LeRoy, New York, a small town of 7,500, twelve  high school girls developed Tourette like symptoms.  A month or later, in January, 2012, additional students and an adult came forward with similar symptoms.  No medical basis for the symptoms was found.  The symptoms were regarded as a case of mass psychogenic illness—a maladaptive form of a kind of empathy that finds its expression in actual physical sensation.

1. Expert Testimony Concerning Psychological Conditions That Are Probative On Issues Of Mental State, Credibility, Motive, And To Dispel Possible Juror Misconceptions Regarding A Putative Victim’s Conduct Is Admissible.

The admissibility of testimony as to psychological concepts, syndromes, and other conditions to explain the conduct of parties and witness is discussed in People v. Phillips (1981) 122 Cal.App.3d 69.  In Phillips, the prosecution introduced, over defense objection, expert testimony on the then obscure and debated condition known as Munchausen 

Syndrome by Proxy to explain why an otherwise respectable mother would poison her child.  The defense objected that the defendant’s mental condition had not been placed in issue.  

Appellant argues, “The trial court abused its discretion and committed prejudicial error in permitting expert opinion testimony, in answer to a hypothetical question, on Munchausen syndrome by proxy, where the facts of the question related specifically to appellant and the named victims, where appellant's mental condition was not at issue, and where illness attributed to appellant was not recognized by medical profession.” This composite argument contains several components, which we proceed to analyze. (Id. at p. 82.)

Appellant suggests this may be the “first time in the history of California criminal jurisprudence in which the prosecution was permitted to put into evidence, as part of its case in chief, the mental condition of the defendant without the issue first being raised either by plea or by the introduction of the defendant's state of mind as part of the defense.” That may be true, but it is hardly persuasive as to the admissibility of such testimony. The rules of evidence do not preclude innovation.

While a prosecutor ordinarily need not prove motive as an element of a crime (People v. Durrant (1897) 116 Cal. 179, 208, 48 P. 75; People v. Planagan (1944) 65 Cal.App.2d 371, 402, 150 P.2d 927), the absence of apparent motive may make proof of the essential elements less persuasive (People v. Beagle (1972) 6 Cal.3d 441, 450, 99 Cal.Rptr. 313, 492 P.2d 1). Clearly that was the principal problem confronting the prosecutor here. In the absence of a motivational hypothesis, and in the light of other information which the jury had concerning her personality and character, the conduct ascribed to appellant was incongruous and apparently inexplicable. As both parties recognize, Dr. Blinder's testimony was designed to fill that gap. (Id. at pp. 83-84.)

The defense contends that group hysteria, or groupthink, provides a rational explanation for the complaints in this matter.  The psychological phenomenon of groupthink explains how members of the group could accuse the defendant of sexual abuse, and that the accusations could occur without an apparent motive.  It is imperative that the defendant be allowed to introduce evidence and expert testimony on the psychological phenomenon of groupthink.

Like expert testimony on the psychological factors affecting eyewitness testimony, factors affecting the reliability of confessions, and obscure diagnoses such as Munchausen by proxy, the phenomenon of groupthink is “’sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’”  (People v. Gardeley (1996) 14 Cal.4th 605.)  Dr. Ermshar will testify that the criteria for suggestibility, conformity, and group think are present within the facts of this case.  (Cf. People v. Nunn (1996) 50 Cal.App.4th 1357, 1365 [psychological expert is permitted to testify that a particular setting could have caused a defendant to react impulsively because of his psychological condition].)  

Dr. Ermshar will testify that factors such as media attention to child abuse, repeated parental questioning of sexual allegations, suggestive interviewing techniques, and peer discussions are significant factors that increase suggestibility.  She will testify that studies have shown that social conformity is a large influencing factor on memory and the blending/reconstruction of memory.  She will base her opinion on existing psychological research on suggestibility and group dynamics.  Several studies have demonstrated that research participants will change their answers or opinions to conform to the majority response.  For instance, in a study involving eyewitnesses, Gabbert, Memon, and Allan (2003) demonstrated that the least confident in their eyewitness experience were the most likely to accept a confident person’s experience.

Dr. Ermshar will testify that studies have shown that human relationships play an important role in influencing memory, with familiar relationships being more influential than opinions held by strangers.  However, the desire to maintain conformity may arise even amongst groups of strangers.  In particular, a study by Walther et al. (2002) demonstrated that anonymous group members can affect an individuals’ ability to accurately recall previously seen information especially where recognition of the circumstances of the event or stimulus were unclear or unmemorable.  In the experiment, the researchers found no evidence that motivational influences affected the participant’s judgments. 

The effect of groupthink in the context of multi-victim child abuse cases is analogous to cases involving group false confessions such as the Central Park jogger case.  In the infamous Central Park jogger case, interrogators took advantage of the age of the defendants and social pressure to extract false confessions from five teenage boys.  Adolescents susceptibility to social influence, i.e., the desire to be accepted by peers and conform to the group expectations, can result in a “coerced-internalized” confession in which the suspect or group of suspects actually believe that they are guilty.  (See, S.M. Kassin & K.L. Kiechel, The Social Psychology of False Confessions: Compliance, Internalization, and Confabulation (May 1996) Vol. 7, No. 3, Psychological Science, pp. 125-128. )  Similarly, children and adolescents in their desire to belong may develop an empathic connection to the group to such an extent that they come to believe that they have been molested and be symptomatic as such.  

It has been consistently demonstrated that children are suggestible to a significant degree, even on abuse related questions, to suggestive questioning techniques often found in the record of interviews found in criminal cases like repetition, guided imagery, and selective reinforcement interviewing techniques.  (Kennedy v. Louisiana, 554 U.S. 407, 443–44, 128 S. Ct. 2641, 2663, 171 L. Ed. 2d 525, as modified (Oct. 1, 2008), opinion modified on denial of reh'g, 554 U.S. 945, 129 S. Ct. 1, 171 L. Ed. 2d 932 (2008).  Experiments have shown that children subjected to biased interviews or suggestive tactics often make false reports that are consistent with interviewer biases and suggestions rather than their actual experiences.  See, e.g., Ceci & Bruck, The Suggestibility of the child witness: A historical review and synthesis, Psychological Bulletin, 113, 403-409 (1993), and Ceci, S.J. & Bruck, M., Jeopardy in the Courtroom: A scientific analysis of children’s testimony (Amer. Psych. Assoc. Press, Washington, D.C. 1995); State v. Michaels (N.J. 1994) 642 A.2d 1372.  Groupthink can be powerfully influential on a child’s report because it draws from several well-known factors that in combination raise the possibility of a false accusation:  (1) “stereotype induction”--the process of conveying negative characteristics of a suspect; (2) information about abuse is derived from a trusted source (parent, peer, or even the media); (3) information from peers that can shape not only what the child believes but also what he or she “remembers” about his or her own experience; (4) children’s tendency to conform their beliefs to adult expectations; and (5) “imagination inflation” where a child feels puzzled by some difficulty he or she is having (e.g., depression, difficulty with peer relationships, body image) and attempts to imagine how the difficulty might have occurred, hears about how some other child or teen who developed similar problems after a history of abuse, wonders if the same thing might have happened to him or her, imagines various childhood scenarios, and asks whether those scenarios involving abuse feel “right” or “true” or “familiar.”  (Daniel Reisberg, The Science of Perception and Memory: A Pragmatic Guide for the Justice System (Oxford University Press 2014) pp. 259-266; Ceci & Bruck, Jeopardy in the Courtroom, supra, pp. 146-152.)  

Moreover, the defendant must be allowed to introduce expert testimony to counter popular misconceptions that children’s report of sexual abuse cannot be the product of suggestion, and the natural inclination people have to believe the accuser if others come forward with similar accusations.  The perception that an allegation of child abuse could not possibly be the product of suggestion or intimidation has its roots in the opprobrium the public feels for the crime of child sexual abuse, the notion that children are innocent, that sexual matters are beyond children’s understanding (it was presumed that children who possessed adult vocabulary to describe sexual organs were molested), fears generated by the media of an epidemic of child abuse or sexual assault, and the relatively high frequency of self-reported victims of child sexual abuse in the U.S. population with some 20-27% of women and 5-16% of men claiming to have been sexually abused as children.  [National Center for Victim’s of Crime- https://victimsofcrime.org/child-sexual-abuse-statistics; see also United States Dept. of Justice, National Sex Offender Public Website; Paul & Shirley Eberle, The Politics of Child Abuse (Lyle Stuart Inc. 1986), p. 14).  

In the 1980’s and 1990’s, there were “we believe the children” political campaigns in response to expressions of doubt about the plausibility of therapist aided recovered memories of ritual sexual abuse in high profile child abuse cases such as the McMartin Preschool case.  See, e.g., Richard Beck, We Believe the Children: A Moral Panic in the 1980’s (Public Affairs 2015) [chronicling the hundreds of false allegations during the day care hysteria of the 1980’s and 90’s]; Ceci & Bruck, Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony (Amer. Psych. Assoc. 1995) at p. 29 [concluding “that children’s allegations involving satanic ritualistic abused are unfounded.”].  There was a tremendous surge in the reporting of child sexual abuse in the 1980’s.  (L.A. Times, Feb. 17, 1985, at 2, col. 1 [reports increased by 35% in 1984 nationwide, and statewide increases reached levels of 126%].  Organizations like Stronger Legislation Against Child Molestors (S.L.A.M.) successfully lobbied state legislators to increases sentences for child sexual abuse.  The “we believe the children” campaigns had a powerful impact on the culture.  Legislation was adopted permitting the introduction of child hearsay statements.  (See Evid. Code, ' 1360 [adopted 1995].)  The scientific research of Drs. Ceci & Bruck in the 1990’s challenged these assumptions because it showed that children’s reports of sexual abuse could be generated by certain methods of questioning.  Defendant must be allowed to introduce expert testimony to counter popular misconceptions and demonstrate the unreliability of the reports of child abuse in this case.  Expert testimony on the suggestibility of child witnesses has been widely accepted in the courts.  (U.S. v. Rouse (8th Cir. 1997) 111 F.3d 561, 571; State v. Kirschbaum (Wis. App. 1995) 535 N.W.2d 462 [195 Wisc.2d 11].)

For the past 30 years numerous courts of appeal have held that expert testimony about the common characteristics of sexually abused children is admissible to rehabilitate a child’s credibility when the defense suggests that his or her conduct after the incident is inconsistent with having been abused.  (See People v. McAlpin (1991) 53 Cal.3d 1289, 1300-1301 & fn. 4 [citing collected cases]; People v. Gray (1986) 187 Cal.App.3d 213, 219-220; People v. Wells (2004) 118 Cal.App.4th 179.)  The evidence is admissible for the purpose of disabusing a jury of possible misconceptions it might hold about how a child reacts to and reports molestation.  (People v. Wells, supra, 118 Cal.App.4th at p. 188.)  In Gray, supra, the Court of Appeal observed that “testimony based on general literature or experience as to the reluctance of molest victims, as a class, to talk to investigators’ [citation] or to discuss the intimate details of the incidents” is admissible as bona fide rebuttal.  (People v. Gray, supra, 187 Cal.App.3d at p. 219.)

Likewise, expert testimony on the phenomenon of groupthink or group hysteria should be admissible when the prosecution argues that disclosures by multiple children reinforces the credibility of each child making a disclosure.  In the absence of expert testimony on groupthink, jurors are likely to give undue credence to the sheer number of disclosures instead of evaluating the quality of each disclosure.  The exclusion of defendant’s evidence of groupthink would be akin to leaving the people of LeRoy without a psychological explanation for Tourettes-like symptoms suffered by their high school girls.  Without an explanation of the phenomenon of group hysteria, the parents of LeRoy would have been left to believe an external environmental toxin was the cause of their childrens’ Tourettes-like symptoms.  Similarly, without evidence of groupthink, the jury in this case will be left to believe in an external cause, i.e., sexual abuse, when in fact there may be a better psychological explanation.  

THE RIGHT TO OFFER THE TESTIMONY OF A WITNESS IS A FUNDAMENTAL

ELEMENT OF SIXTH AMENDMENT COMPULSORY PROCESS AND FOURTEENTH AMENDMENT DUE PROCESS OF LAW

The United States Supreme Court and California Supreme Court look with disfavor upon trial court rulings that limit the ability of an accused to present defense testimony.  In People v. Wright (1985) 39 Cal.3d 576, the California Supreme Court stated that “‘trial judges in criminal cases should give a defendant the benefit of any reasonable doubt when passing on the admissibility of evidence as well as in determining its weight.’”  (People v. Wright, supra, 39 Cal. 3d 576, 584–85 quoting People v. Murphy (1963) 59 Cal.2d 818, 829.)  The federal and state high courts are particularly concerned with evidentiary rulings that infringe upon a defendant’s 14th Amendment rights to compulsory process and the right to present a defense.

"Whether rooted directly in the Due Process Clause of the Fourteenth Amendment . . . or in the compulsory process or confrontation clause of the Sixth Amendment. . . the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" (California v. Trombetta (1984) 467 US 479, 485; Crane v. Kentucky (1986) 476 US 683, 690.) The federal constitution requires that the defendant be allowed to present all relevant evidence of significant probative value to the defense.  (Chambers v. Mississippi (1973) 410 U.S. 284, 302, 93 S.Ct. 1038; People v. Reeder (1978) 82 Cal.App.3d 543, 553.)  

It has been held that a defendant’s right to present the testimony of critical witnesses and important defense evidence is so encompassing that it takes precedence over statutory rules of evidence making persons incompetent as witnesses (Washington v. Texas (1967) 388 U.S. 14 [exculpatory accomplice testimony]; Rock v. Arkansas (1987) 483 U.S. 44 [hypnotically refreshed defense testimony]; Durr v. Cook (5th Cir. 1979) 589 F.2d 891, 893 [juror affidavits]), state statutory privileges (Davis v. Alaska (1973) 415 U.S. 308, 317-318 [right to cross-examination overrides state policy concerning the anonymity of a juvenile offender]; People v. Hammon (1997) 15 Cal.4th 1117 [defendant’s 6th Amendment right to confrontation at trial takes precedence over psychotherapist-patient privilege], and state rules of evidence excluding certain classes or types of as inherently unreliable or unscientifically proven (State v. Dorsey (N.M. 1975) 87 N.M. 323, 532 P.2d 912). 

The California Supreme Court has long recognized the right of a defendant to present exculpatory evidence in the form of expert psychological testimony.  For instance, in People v. Stoll (1989) 49 Cal.3d 1136, at page 1152, the Supreme Court reaffirmed the holding in People v. Jones (1954) 42 Cal.2d 219, that it is prejudicial error to exclude "expert opinion testimony that the defendant is 'not a sexual deviate' where offered to prove that he did not commit lewd and lascivious acts upon a child."  Stoll specifically found that such testimony is within the boundaries of Evidence Code sections 802 and 1102.  (Id., at 1152-1154; see, e.g., People v. Spigno (1957) 156 Cal.App.2d 279, 286-287; People v. McAlpin, supra, 53 Cal.3d 1289, 1305.)  

A court is permitted to limit or exclude expert testimony if it is based on matter of a type on which an expert cannot reasonably rely.  (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769-772;  Evid. Code, '' 801, 802.)  A finding of general acceptance in the scientific community is not required for testimony on a medical or psychological condition or syndrome.  (People v. Perez (2010) 182 Cal.App.4th 231, 243-244 [CSAAS]; People v. Bledsoe (1984) 36 Cal.3d 236, 247-248 [rape trauma syndrome]; Roberti v. Andy’s Termite & Pest Control, Inc. (2003) 113 Cal.App.4th 893, 901 [new theory of medical causation that relied upon no new novel techniques not subject to Kelly].)  The methods employed by Dr. Ermshar are not new to psychology or the law but are based upon data and methods normally used by psychologists for their opinions.  The bases for her opinion is readily available literature, both scientific and empirical, that describes the phenomenon of groupthink and relates that research to the facts of this case.  The opinion is not subject to exclusion under Kelly because it is based upon scientific techniques or machines that pose an aura of infallability that a trier-of-fact is unable to evaluate.  

The United States Supreme Court has found reversible error in the exclusion of psychological testimony.  In Skipper vs. South Carolina (1986) 476 U.S. 1, the court found error in the trial court's exclusion of evidence by a visitor and two jailers that the defendant had made a "good adjustment" while in jail.  Because the evidence involved no predictions of future conduct the court felt that their opinions were reliable and should have been admitted in the guilt phase.   

USE OF A MENTAL CONDITION FOR IMPEACHMENT

A defendant has a constitutional right to be able to adequately cross-examine a witness.  A defendant "...has the right to expose to the jury the facts from which jurors, as sole triers of fact and credibility, could proximately draw inferences relating to the reliability of the witness."  (Davis vs. Alaska (1974) 415 US 308, 318.) This includes the right to show that a government witness's testimony was the product of a mental illness.  (U.S. vs. Lindstrom (4th Cir. 1983) 698 F.2d 1154.)  

The defendant's right to confrontation outweighs the witness's interest in medical privacy.  In Reese vs. State (1983) 54 Md.App. 281, 458 A.2d 492, the court cited Lindstrom, supra, as authority for the proposition that the defendant could probe the witness's psychological problems even though medical examiners claimed it would be stressful.

Davis vs. Alaska, supra, gives a defendant the constitutional right to cross-examine to elicit facts probative of a witness's faulty memory.  (Latzer vs. Abrams (E.D.N.Y. 1985) 602 F.Supp. 1314, 1319.)  The California Supreme Court has recognized that in sex violation cases the courts have established “more liberal rules of impeachment than those otherwise applicable” including delving into the mental or emotional condition of the complainant.  (Ballard v. Superior Court of San Diego County (1966) 64 Cal.2d 159, 172-173 [superseded in part by Pen. Code, ' 1112 [prohibiting court ordered psychological examination of complaining witness].)  In People v. Neely (1964) 228 Cal.App.2d 16, at page 20, the court recognized that the appellant was entitled to have the jury informed of the mental and emotional instability of the prosecuting witness through the expert medical testimony of the doctor in charge of her case.

EVIDENCE CODE § 352 BOWS TO DEFENDANT'S DUE PROCESS RIGHT TO PRESENT A DEFENSE

In People v. Reeder (1978) 82 Cal.App.3d 543, prejudicial error was found in the trial court's exclusion of evidence proffered on a theory of motive.  The defendant proffered evidence that his co-defendant had reneged on a $200.00 debt to him, caused his step-daughter to contract TB and tried to introduce her to heroin, and had introduced his nephew to heroin and almost killed him through overdose.  The defense theory was that defendant, having knowledge of these actions by his co-defendant, disliked him to the point where he would not have conspired with him in the charged narcotic violations.  The trial court excluded his evidence based on inadmissible hearsay, it’s doubtful relevancy, and by operation of Section 352.  (Reeder, supra, 82 CA3d 543, 550.)

On appeal, the court held that "in criminal cases, any evidence that tends to support or rebut the presumptions of innocence is relevant", since "it is fundamental in our system of jurisprudence that all of a defendant's pertinent evidence should be considered by the trier of fact."  (Reeder, supra, 82 Cal.App.3d 543, 552 [citations omitted, emphasis added.)  The court found that defendant had the right to show he believed what others had told him about the co-defendant and the proffered evidence supported his defense of such intense dislike for his co-defendant as to preclude him from engaging in a criminal conspiracy with him (Id. at p. 550.)

"Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers v. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant's defense, constituted a denial of a fair trial in violation of constitutional due-process requirements.”

(Reeder, supra, at p. 553 [Emphasis added]).

In Olden v. Kentucky (1988) 488 U.S. 227 [109 S.Ct. 480,102 L.Ed.2d 513], the complaining witness claimed she had been raped by the defendant while the defendant claimed the sex was consensual.  At trial, the prosecution made an in limine motion to exclude evidence of the complaining witness's relationship with a boyfriend who saw her alight from a car with the defendant. The defendant argued that the complaining

witness concocted the rape story to protect her relationship with her boyfriend. The trial court excluded the evidence finding that its probative value was outweighed by the possibility for prejudice to the complaining witness because she was Caucasian and her boyfriend was African American and the relationship might stir prejudice in some of the jurors.  Olden held that the trial court had violated the defendant's right to confrontation, because the evidence of the relationship would have supported the defense theory that the victim had a motive to falsify the rape charge. (Id., at pp. 231-232.)

CONCLUSION

The defense is prepared to present expert testimony on the phenomenon known as Groupthink and how the facts of the instant case present a scenario in which groupthink could have arisen.  Groupthink is a form of suggestibility that applies to a group.  Under the authority above, to exclude such testimony would be to deprive the defendant of his Sixth Amendment rights to compulsory process and to confrontation, and his 14th Amendment due process right to present his defense.  Under these authorities, the exclusion of the proposed expert testimony would result in a reversal on appeal.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

1. MOTION UNDER EVIDENCE CODE §782 TO ADMIT PRIOR SEXUAL KNOWLEDGE & ACTS OF VICTIM

1. Introduction

A defendant generally cannot question a sexual assault complaining witness about her prior sexual activity.  However, where such history reveals both a motive to lie and facts that mirror the allegations in the instant case, the history is relevant and admissible (1) to challenge the complaining witness’ credibility about the allegations, (2) to challenge the witness’ aura of veracity, and (3) to permit the defendant his right to present a defense. See, People v. Woodward (2004) 116 Cal.App.4^th 821, 831.

1. Evidence Sought to be admitted is not “sexual conduct of the complaining witness” within the Meaning of Evidence Code §782

The hearing requirements of Evidence Code §782 apply only to “sexual conduct of the complaining witness.”  Here, the acts sought to be admitted by the Defense are [INSERT EVIDENCE TO BE ADMITTED].

Penal Code § 311 provides a broad definition of “sexual conduct,” but still does not encompass the conduct of LC the Defense seeks to admit here:

“sexual conduct” means any of the following, whether actual or simulated: sexual intercourse, oral copulation, anal intercourse, anal oral copulation, masturbation, bestiality, sexual sadism, sexual masochism, penetration of the vagina or rectum by any object in a lewd or lascivious manner, exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer, any lewd or lascivious sexual act as defined in Section 288[], or excretory functions performed in a lewd or lascivious manner, whether or not any of the above conduct is performed alone or between members of the same or opposite sex or between humans and animals. An act is simulated when it gives the appearance of being sexual conduct. 

The suggestive acts here are not overtly sexual, but they are substantially similar to the acts CG accuses Defendant of i.e. above the clothes touching of her genital area with his hand.  They are thus directly relevant and at issue providing compelling evidence of CG lack of truthfulness and shedding light on what actually occurred. 

Accordingly, the defense makes this motion only out of an abundance of caution.

1. Even if CG’s Behavior is Deemed “Sexual Conduct” Within the Meaning of §782, It Should Nonetheless be Admitted 

Evidence Code §782(a) provides for an in camera review when evidence of the “sexual conduct of the complaining witness is offered to attack the credibility of the complaining witness under Section 780....(4)... if the court finds that evidence proposed to be offered by the defendant regarding the sexual conduct of the complaining witness is relevant pursuant to Section 780, and is not inadmissible pursuant to Section 352, the court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted. The defendant may then offer evidence pursuant to the order of the court.”  

Evidence Code §780 provides in relevant part “the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:...(e) His character for honesty or veracity or their opposites... (i) The existence or nonexistence of any fact testified to by him.”  The Defense seeks to admit CG’s sexualized conduct precisely to attack her credibility and to demonstrate that her accusation of inappropriate touching against Defendant is false. 

In People v. Daggett (1990) 225 Cal. App. 3d 751, 757, 275 Cal. Rptr. 287, 290, the appellate court reversed the defendant’s conviction due to the trial court's failure to allow him to present evidence that the victim had been molested by older children when he was five.  The court held:

A child’s testimony in a molestation case involving oral copulation and sodomy can be given an aura of veracity by his accurate description of the acts. This is because knowledge of such acts may be unexpected in a child who had not been subjected to them.

In such a case it is relevant for the defendant to show that the complaining witness had been subjected to similar acts by others in order to cast doubt upon the conclusion that the child must have learned of these acts through the defendant.  [***8]  Thus, if the acts involved in the prior molestation are similar to the acts of which the defendant stands accused, evidence of the prior molestation is relevant to the credibility of the complaining witness and should be admitted.

Here, Daggett's offer of proof was that he learned, from an inspection of the prosecutor's file, Daryl told a mental health worker and Doctor Slaughter that he had been molested by two older children, ages eleven and eight, when he was five years old. This should have been sufficient for the court to have ordered a hearing to determine whether the acts of prior molestation were sufficiently similar to the acts alleged here. The court erred when it failed to do so.

The error was compounded when the prosecutor argued to the jurors that if they believed Daryl molested other children, he must have learned that behavior from being molested by Daggett. This is the type of argument the excluded evidence was intended to refute.

Daggett, 225 Cal. App. 3d 757, 275 Cal. Rptr. 290.

The acts sought to be admitted are extremely similar to the acts LC accuses Defendant of. That is, in the first instance, Defendant extricating his hand palm down from between CG’s legs after she climbed over him and straddled his arm and, in the second, the charged conduct of over the clothes touching of her genital area.

1. CG’s Conduct is Admissible Evidence of Character Under Evidence Code §1101

The prior sexual conduct of the complaining witness, which is evidence of a person's character or trait of character, is admissible under Evidence Code §1101(c) to support or attack his or her credibility.  The prohibition stated in subsection (a) applies to character evidence only when it is offered to prove the conduct of a complaining witness on a specified occasion.

In our case, the defense seeks to attack the alleged victim’s credibility, and is thus entitled under §1101(c) to employ evidence of her prior sexual conduct (if indeed is it “sexual conduct”) as evidence to attack her credibility and explain the truth of what occurred. People v. Franklin (1994)  25 Cal. App. 4th 328, 335, 30 Cal. Rptr. 2d 376, 380. 

1. Evidence Code §1103(c) does not Bar Admission of the CG’s Prior “Sexual Conduct” Because Such Evidence Will Not be Offered to Prove Her Consent

Evidence Code §1103(c)(1) states, as a general proposition, that “opinion evidence, reputation evidence, and evidence of specific instances of the complaining witness's sexual conduct...is not admissible by the defendant in order to prove consent by the complaining witness.”  However, Evidence Code §1103 does NOT bar evidence of a victim's sexual conduct (nor cross-examination of her concerning such conduct) when the evidence is offered to attack her credibility.  Evidence Code §1103(c)(3) & (4); People v. Chandler (1997) 56 CA4th 703, 711; People v. Blackburn (1976) 56 CA3d 685, 689-690.

Once the defendant makes a sworn offer of proof concerning the relevance of the sexual conduct of the complaining witness to attack her credibility, the protections of §1103 give way to the procedural safeguards of §782.  People v. Rioz (1984) 161 CA3d 905, 916.

1. Evidence Code § 352

Generally, cross examination to test the credibility of a prosecution witness should be given wide latitude.  People v. Belmontes (1988) 45 Cal.3d 744, 780.)  “[C]ross-examination is the principle means by which the believability of a witness and the truth of his testimony are tested.” Farrell L. v. Superior Court (1988) 203 CA3d 521, 526.  “In sex cases, broad cross-examination of the prosecuting witness on prior sexual experiences, fabrication and sexual fantasy should be allowed."  People v. Francis (1970) 5 CA3d 414, 417.

  In People v. Reeder (1978) 82 CA3d 543, 550, the court held that “in criminal cases, any evidence that tends to support or rebut the presumptions of innocence is relevant,” since “it is fundamental in our system of jurisprudence that all of a defendant's pertinent evidence should be considered by the trier of fact.”  (Id., at p. 552.)  The court found that defendant had the right to show he believed what others had told him about the co-defendant and the proffered evidence supported his defense of such intense dislike for his co-defendant as to preclude him from engaging in a criminal conspiracy with him (Reeder, supra, at p. 550) and stated: “Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant's defense, constituted a denial of a fair trial in violation of constitutional due-process requirements.?”  Id., at p. 553.

1. Due Process Require that Evidence of Defendant's Alternative Explanations of CG’s Knowledge of Sex be Admitted Before the Jury

In child molest cases, the conclusion is routinely drawn that the victim got his or her knowledge of sex from the defendant while being molested.  We learned the hard way in the infamous McMartin case in Los Angeles that this conclusion is not always true.  Children can be “taught” such matters by being repeatedly questioned using questions full of information about sexual acts.  Children can “learn” such matters in a number of ways although this fact is often overlooked.  If no alternative explanation is permitted by the court, juries will automatically presume that the defendant provided the child with knowledge of sex through the alleged illegal acts.

As quoted above, in People v. Daggett, supra, the appellate court recognized this presumption and its inherent dangers and found that the defense should have been allowed to elicit the victim's prior sexual history to refute it.  The failure to allow the defendant to establish the victim's alternative source of knowledge compelled reversal.  (225 CA3d at p. 758.) 

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

TO: THE CLERK OF THE COURT AND SUMMER STEFFAN, THE DISTRICT ATTORNEY OF SAN DIEGO COUNTY OR HER AUTHORIZED REPRESENTATIVE 

Defendant’s central defense is that the complaining witness Noah W made up the allegations of sexual assault, amongst other reasons, to appease his mother and avoid the discussion of his sexual orientation.  Mr.  ________ was an easy target because Jill _______hates Mr. _______________________ and wants full custody of all her children.  Jill took lead in the investigation and like she had done two other times in the past, structured a false allegation of sexual abuse against a third man.  Jill _______________________’s lack of credibility is a central theme of Mr. _______________________’s defense, and he must be given wide latitude to present her pattern of lies, deceptions and previous allegations of sexual assault against other men whom she believed did her wrong, despite no evidence supporting her allegations.

POINTS AND AUTHORITIES

I.

THIS COURT SHOULD PERMIT THE DEFENSE WIDE LATITUDE IN CHALLENGING JILL _________________’ CREDIBILITY

Jill _______________________ has a pattern of making false allegations and her credibility is central to the defense in the instant case.  Specifically, the defense asserts that Ms. _______________________ has a longstanding grudge against Mr. _______________________ and relying on such, Jill _______________________ has insisted Noah move forward with these false allegations in retaliation for a failed and abusive relationship. As there is no corroborating evidence – no biological evidence, no admissions, no confessions, no witnesses, and a host of inconsistent statements; the Prosecution’s entire case rests on the credibility of Jill _______________________ and Noah _______________________.

The instant offense represents the third person Asha has accused of sexual assault 

II.

JILL _______________________ HAS A LONG HISTORY OF DISHONEST CONDUCT AND CANNOT BE BELIEVED IN THE INSTANT MATTER

Evidence Code section 780 states, “except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: …(b) the character of his testimony; (e) his character for honesty or veracity or their opposites.  Addressing §780, CalCrim 226 provides a laundry list of permissible considerations including: (1) whether the witness’s testimony is influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided; (2) what the witness’s character for truthfulness reveals and (3) whether the witness has engaged in [other] conduct that reflects on her believability?  In addition, the jury is instructed to consider whether a witness deliberately lied about something significant and if so, “[they] should consider not believing anything that witness says…”

Generally, past misconduct involving moral turpitude or dishonesty is admissible to impeach a witness in a criminal trial.  People v. Wheeler (1992) 4 Cal.4^th 284; People v. Dalton (2019) 7 Cal.5^th 166 (Dalton).  A defendant has a constitutional right to due process, to present a complete defense and to confront and cross examine those witnesses against him.  A denial of such important Constitutional principles is prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818.  In particular, “evidence of a prior false report of molestation or rape is relevant to the credibility of the victim.”  People v. Miranda (2011) 199 Cal.App.4^th 1403; see also People v. Franklin, (1994) 25 Cal.App.4^th 328.   

In People v. Randle (1982) 130 Cal.App.3d 286, 294, the defense had evidence of the complainant's reputation for and specific instances of soliciting for public sex acts.  They also had reputation evidence for dishonesty and theft including specific instances.  The court held that the complainant had a trait of making false allegations of crimes being committed against her.  This evidence tended in reason to prove that she was acting in conformity with that trait when she made the allegation in the instant case. Id.   Such evidence cannot be used to prove consent.  It must be introduced to impeach credibility.  

In People v. Varona (1983) 143 Cal.App.3d 566, the complainant claimed she was accosted by defendant on a certain street and forced her to engage in intercourse and oral copulation.  The defense was consent.  Proof of complainant's prior sexual conduct could not be introduced as tending in reason to prove consent.  (Evidence Code Section 1103).  However, under Evidence Code Section 782 her status as a convicted prostitute on probation was admissible.  The evidence tended to cast doubt on the credibility of her testimony regarding why she was on that street at that time and whether the oral copulation was voluntary or involuntary.  The proffered evidence showed that she "worked" that street and her "specialty" was oral copulation.  The evidence was offered to impeach her testimony on issues other than consent.

The issue in People v. Adams (1986) 198 Cal.App.3d 10, was whether evidence that on a prior occasion complainant had alleged to her friend that her boyfriend (not defendant) had raped her.  The court reversed the order of conviction because it was “error to exclude otherwise admissible evidence that the victim had on two occasions falsely accused others of rape” Id. at 18.  Such evidence does not fall within the scope of section 782: The instance of conduct being placed before the jury as bearing on credibility is making of the false statement, not the sexual conduct which is the content of the statement.  “Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness’s credibility.  The jury is asked to draw an inference about the witness’s credibility from the fact that she stated as true something that was false.” Franklin, supra, 25 Cal.App.4^th at p. 335.  

In Green v. Knipp, 2014 U.S. Dist. LEXIS 106814 the defendant attempted to impeach the victim using the victim’s previous retracted allegation that she was molested by a man other than the defendant. Upon questioning, the victim "said she made the whole thing up."  The trial court allowed Green to question the victim about her prior accusations against Green and the appellate court affirmed.  They noted that in California, a previous false report of sexual assault can be used to impeach the complaining witness in a sex crime case as long as the cross-examiner can show that the prior accusation was actually false.  

Here, the victims of such false allegations will testify that her accusations were false.  Such testimony is necessary to lay the foundation required under the rules of evidence.  

The fact that a witness stated something that is not true as true is relevant to the witness's credibility whether she fabricated the incident or fantasized about it. [P] The evidence, therefore, constitutes 'any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing,' including the extent of the witness's capacity to perceive, to recollect, or to communicate any matter about which he or she testified, the extent of the witness's opportunity to perceive any matter about which he or she testified and the existence or nonexistence of any fact testified to by the witness. ([Evid. Code,] § 780, subds. (c), (d) & (i).)" ( Franklin, supra, 25 Cal.App.4th at pp. 335-336.)  Past false complaints of rape are relevant impeachment evidence.  People v. Pacheco (1963) 220 Cal.App.2d 320.  In a rape prosecution, the defendant attempted to introduce evidence that the complainant had threatened to cry rape on her boyfriend if he didn't leave her alone.  The court concluded that this was a specific act to prove a trait.  The court held that collateral evidence (the prior allegation) of specific instances of complainant's non-sexual conduct as proof of a character trait tending to disprove the truthfulness of trial testimony is allowed. People v. Wall (1979) 95 Cal.App.3d 978.

CONCLUSION

Mr. _______________________’s defense is that Noah _______________________ made up the allegations of sexual assault to appease his mother and “help her win the case”.  Ms. Jill _______________________ furthered the false allegation by insisting that Noah prosecute and has driven the prosecution ever since. Her credibility is central to the prosecution’s case and decidedly important to the defense.  As such, the defense must be permitted wide latitude to challenge her credibility by introducing evidence relevant to establishing her long pattern of lies, including those committed under penalty of perjury.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

DECLARATION OF [ATTORNEY’S NAME]

I, [ATTORNEY’S NAME] declare:

1. I am an attorney duly licensed to practice law in the State of California.  I am the attorney for the defendant [name of defendant]  in this matter. 
2. Attached hereto as Exhibit 1, are true and correct copies of 

I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.

Executed in _____________, CA on ___________________________.

_______________________

[ATTORNEY’S NAME]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

TO: THE CLERK OF THE COURT AND SUMMER STEFFAN, THE DISTRICT ATTORNEY OF SAN DIEGO COUNTY OR HER AUTHORIZED REPRESENTATIVE 

Defendant’s central defense is that the complaining witness Noah W made up the allegations of sexual assault, amongst other reasons, to appease his mother and avoid the discussion of his sexual orientation.  Mr.  ________ was an easy target because Jill _______hates Mr. _______________________ and wants full custody of all her children.  Jill took lead in the investigation and like she had done two other times in the past, structured a false allegation of sexual abuse against a third man.  Jill _______________________’s lack of credibility is a central theme of Mr. _______________________’s defense, and he must be given wide latitude to present her pattern of lies, deceptions and previous allegations of sexual assault against other men whom she believed did her wrong, despite no evidence supporting her allegations.

POINTS AND AUTHORITIES

I.

THIS COURT SHOULD PERMIT THE DEFENSE WIDE LATITUDE IN CHALLENGING JILL _________________’ CREDIBILITY

Jill _______________________ has a pattern of making false allegations and her credibility is central to the defense in the instant case.  Specifically, the defense asserts that Ms. _______________________ has a longstanding grudge against Mr. _______________________ and relying on such, Jill _______________________ has insisted Noah move forward with these false allegations in retaliation for a failed and abusive relationship. As there is no corroborating evidence – no biological evidence, no admissions, no confessions, no witnesses, and a host of inconsistent statements; the Prosecution’s entire case rests on the credibility of Jill _______________________ and Noah _______________________.

The instant offense represents the third person Asha has accused of sexual assault 

II.

JILL _______________________ HAS A LONG HISTORY OF DISHONEST CONDUCT AND CANNOT BE BELIEVED IN THE INSTANT MATTER

Evidence Code section 780 states, “except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: …(b) the character of his testimony; (e) his character for honesty or veracity or their opposites.  Addressing §780, CalCrim 226 provides a laundry list of permissible considerations including: (1) whether the witness’s testimony is influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided; (2) what the witness’s character for truthfulness reveals and (3) whether the witness has engaged in [other] conduct that reflects on her believability?  In addition, the jury is instructed to consider whether a witness deliberately lied about something significant and if so, “[they] should consider not believing anything that witness says…”

Generally, past misconduct involving moral turpitude or dishonesty is admissible to impeach a witness in a criminal trial.  People v. Wheeler (1992) 4 Cal.4^th 284; People v. Dalton (2019) 7 Cal.5^th 166 (Dalton).  A defendant has a constitutional right to due process, to present a complete defense and to confront and cross examine those witnesses against him.  A denial of such important Constitutional principles is prejudicial under Chapman v. California (1967) 386 U.S. 18, 24 and People v. Watson (1956) 46 Cal.2d 818.  In particular, “evidence of a prior false report of molestation or rape is relevant to the credibility of the victim.”  People v. Miranda (2011) 199 Cal.App.4^th 1403; see also People v. Franklin, (1994) 25 Cal.App.4^th 328.   

In People v. Randle (1982) 130 Cal.App.3d 286, 294, the defense had evidence of the complainant's reputation for and specific instances of soliciting for public sex acts.  They also had reputation evidence for dishonesty and theft including specific instances.  The court held that the complainant had a trait of making false allegations of crimes being committed against her.  This evidence tended in reason to prove that she was acting in conformity with that trait when she made the allegation in the instant case. Id.   Such evidence cannot be used to prove consent.  It must be introduced to impeach credibility.  

In People v. Varona (1983) 143 Cal.App.3d 566, the complainant claimed she was accosted by defendant on a certain street and forced her to engage in intercourse and oral copulation.  The defense was consent.  Proof of complainant's prior sexual conduct could not be introduced as tending in reason to prove consent.  (Evidence Code Section 1103).  However, under Evidence Code Section 782 her status as a convicted prostitute on probation was admissible.  The evidence tended to cast doubt on the credibility of her testimony regarding why she was on that street at that time and whether the oral copulation was voluntary or involuntary.  The proffered evidence showed that she "worked" that street and her "specialty" was oral copulation.  The evidence was offered to impeach her testimony on issues other than consent.

The issue in People v. Adams (1986) 198 Cal.App.3d 10, was whether evidence that on a prior occasion complainant had alleged to her friend that her boyfriend (not defendant) had raped her.  The court reversed the order of conviction because it was “error to exclude otherwise admissible evidence that the victim had on two occasions falsely accused others of rape” Id. at 18.  Such evidence does not fall within the scope of section 782: The instance of conduct being placed before the jury as bearing on credibility is making of the false statement, not the sexual conduct which is the content of the statement.  “Even though the content of the statement has to do with sexual conduct, the sexual conduct is not the fact from which the jury is asked to draw an inference about the witness’s credibility.  The jury is asked to draw an inference about the witness’s credibility from the fact that she stated as true something that was false.” Franklin, supra, 25 Cal.App.4^th at p. 335.  

In Green v. Knipp, 2014 U.S. Dist. LEXIS 106814 the defendant attempted to impeach the victim using the victim’s previous retracted allegation that she was molested by a man other than the defendant. Upon questioning, the victim "said she made the whole thing up."  The trial court allowed Green to question the victim about her prior accusations against Green and the appellate court affirmed.  They noted that in California, a previous false report of sexual assault can be used to impeach the complaining witness in a sex crime case as long as the cross-examiner can show that the prior accusation was actually false.  

Here, the victims of such false allegations will testify that her accusations were false.  Such testimony is necessary to lay the foundation required under the rules of evidence.  

The fact that a witness stated something that is not true as true is relevant to the witness's credibility whether she fabricated the incident or fantasized about it. [P] The evidence, therefore, constitutes 'any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing,' including the extent of the witness's capacity to perceive, to recollect, or to communicate any matter about which he or she testified, the extent of the witness's opportunity to perceive any matter about which he or she testified and the existence or nonexistence of any fact testified to by the witness. ([Evid. Code,] § 780, subds. (c), (d) & (i).)" ( Franklin, supra, 25 Cal.App.4th at pp. 335-336.)  Past false complaints of rape are relevant impeachment evidence.  People v. Pacheco (1963) 220 Cal.App.2d 320.  In a rape prosecution, the defendant attempted to introduce evidence that the complainant had threatened to cry rape on her boyfriend if he didn't leave her alone.  The court concluded that this was a specific act to prove a trait.  The court held that collateral evidence (the prior allegation) of specific instances of complainant's non-sexual conduct as proof of a character trait tending to disprove the truthfulness of trial testimony is allowed. People v. Wall (1979) 95 Cal.App.3d 978.

CONCLUSION

Mr. _______________________’s defense is that Noah _______________________ made up the allegations of sexual assault to appease his mother and “help her win the case”.  Ms. Jill _______________________ furthered the false allegation by insisting that Noah prosecute and has driven the prosecution ever since. Her credibility is central to the prosecution’s case and decidedly important to the defense.  As such, the defense must be permitted wide latitude to challenge her credibility by introducing evidence relevant to establishing her long pattern of lies, including those committed under penalty of perjury.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

DECLARATION OF [ATTORNEY’S NAME]

I, [ATTORNEY’S NAME] declare:

1. I am an attorney duly licensed to practice law in the State of California.  I am the attorney for the defendant [name of defendant]  in this matter. 
2. Attached hereto as Exhibit 1, are true and correct copies of 

I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.

Executed in _____________, CA on ___________________________.

_______________________

[ATTORNEY’S NAME]

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

1. DEFENDANT MOVES TO EXCLUDE EVIDENCE OF LAWFUL ADULT SEXUAL CONDUCT

1. Introduction

[INSERT RELEVANT FACTS]

1. Evidence to be Excluded

Defendant moves the Court for an order excluding the following evidence of Adult Sexual Conduct including:

1. The prosecution be precluded from introducing any evidence of Defendant’s adult with adult sexual conduct.
2. The prosecution be precluded from questioning Defendant (if he elects to testify) concerning his sexual conduct with other adult(s).  This includes, but is not limited to affairs with other adults, adult sexual preference with adults, adults with adult types of sexual acts, and adult with adult sexual frequencies.
3. The prosecution be precluded from questioning Defendant’s spouse if she/he testifies concerning their adult sexual conduct.
4. The prosecution be precluded from arguing that the lack of adult with adult sexual conduct is the motive for adult with child sexual conduct.

The evidence to be excluded includes, but is not limited to all of the following: [INSERT EVIDENCE TO BE EXCLUDED]

Relevance

Only relevant evidence is admissible at trial.  Evidence Code § 350.  “Relevant evidence” means testimony or physical objects, including evidence bearing on the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action.  Evidence Code § 210; People vs. Scheid (1997) 16 Cal.4th 1.  A court has no discretion to admit irrelevant evidence.  People vs. Crittenden (1994) 9 Cal.4th 83, 132.   Evidence which produces only speculative inferences is irrelevant evidence.  People vs. De La Plane (1979) 88 Cal.App.3d 223, 242.  Whether or not evidence is relevant is a decision within the trial court's discretion.  People vs. Von Villas (1992) 10 Cal.App.4th 201, 249.  The trial court abuses its discretion in admitting evidence when it can be shown under all the circumstances that it exceeded the bounds of reason.  (People vs. De Jesus (1995) 38 Cal.App.4th 1, 32.  

1. Court’s Discretion

Defendant incorporates by reference the above subsection by the same name. 

1. Defendant's Non-Criminal Sexual Contacts with Other Adults is Irrelevant to the Present Charges.

In People vs. Kelley (1967) 66 C2d 232 (disapproved on another ground, People v. Alcala (1984) 36 Cal.3d 604, 624), decided when oral copulation and anal sex between consenting adults was an illegal act, the defendant was charged with having orally copulated and masturbated an eight-year-old boy.  Over objection, the prosecution introduced evidence that twenty-four years before defendant was orally copulated by a male and that he committed acts of oral copulation with his first and second wife.  The California Supreme Court reversed the conviction because of the erroneous admission into evidence of the prior sexual acts between consenting adults:

It is not the law that other offenses are admissible whenever a specific intent is required to be proved. Such a rule should particularly be avoided in 288 cases where evidence of the lewd and lascivious acts themselves normally carry a strong inference that they were done with the specific intent of arousing sexual desires. [¶]  Moreover, in the present case, the other offenses here involved are not, as required by Coltrin and as existed in Malloy and Honaker, "of a similar nature" to the crime charged. The prior offenses were committed with consenting adults and with persons quite dissimilar to the prosecuting witness and involved distinctly different conduct on the part of the defendant. The experience with the man 24 years ago, in addition to being too remote in time to have any reasonable bearing on the act charged, did not involve oral conduct on the part of the defendant, and the experience with his wives, occurring between consenting adults of the opposite sex in the privacy of the marriage bed, certainly cannot be relevant enough to the seduction of an 8-year-old boy to outweigh its prejudicial effect upon the jury.

Kelley, 244-45, 957.

This ruling is stronger today in light of the decriminalization of all types of sex between consenting adults.

People vs. Thomas (1978) 20 C3d 457 at 466 (overruled on other grounds in People v. Tassell (1984) 36 Cal.3d 77, 87-88 and fn. 8) reaffirmed the California Supreme Court’s ruling that adult with adult sexual acts are inadmissible in child molest cases because the persons are quite dissimilar.  It also acknowledging that “although alleged sex offenses committed with persons other than the prosecuting witness are often unreliable and difficult to prove, nevertheless such evidence is admissible to show a common design or plan where the prior offenses (1) are not too remote in time, (2) are similar to the offenses charged, and (3) are committed upon persons similar to the prosecuting witness.”

Similarly, in United States vs. Gillespie 852 F2d 475 (9th Cir. 1988) the defendant was charged with child molestation.  The prosecution introduced evidence that the defendant (an adult) and his adoptive father (an adult) had a homosexual relationship.  The prosecution introduced the evidence on the theory that it showed appellant's motive, intent, plan and design to bring the child victim into the U.S. for molestation purposes.  The defendant's conviction was reversed because of the introduction of evidence of his homosexual contact with another adult.  

The court explained:

The evidence neither proved nor disproved that the appellant molested the child.  It was offered to show that the men differed from what they held themselves out to be, but none of the testimony about their sexual relationship helped the trier of fact decide whether the appellant was guilty of the offense.  (Id., at p. 478.)

In short, Defendant's non-criminal sexual contacts with other adults are not relevant to establish that committed the charged offense(s) and are therefore inadmissible.

Adults are not “persons similar to the prosecuting witness” in a child molest case, thus all evidence of Defendant's non-criminal sexual conduct with adults should be excluded as irrelevant.

1. The Accidental/Incidental Mention by a Defense Witness of the Defendant's Sexual Contacts with Adults Does not Open the Door to Further Evidence on That Subject

If any witness accidentally/incidentally mentions the defendant’s sexual activities with adults, the door to further evidence on that subject has not “opened.”  “By allowing objectionable evidence to go in without objection, the non-objecting party gains no right to the admission of related or additional otherwise inadmissible testimony.  The so-called ‘open the door’ or ‘open the gates argument is a ‘popular fallacy.’  (Citation Omitted).” People vs. Gambos (1970) 5 Cal.App.3d 187; People vs. Williams (1989) 213 Cal.App.3d 1186, 1189, fn. 1; People vs. Valentine (1988) 207 Cal.App.3d 697, 705 [government's purported impeachment of defendant was an improper rebuttal to a collateral matter improperly raised on cross-examination].

1. Conclusion

Defendant respectfully requests to exclude all references to any and all lawful adult sexual conduct by Defendant as it relates to Defendant as all such evidences is because adults are a different class of individuals when it comes to sexual conduct as stated in the case law and adult with adult affairs are irrelevant, an undue waste of time and/or substantially more prejudicial than probative. Evidence Code §§ 210, 350, 350.1, 352.

/ / /

/ / /

1. DEFENDANT MOVES TO ADMIT CHARACTER OF NON-DEVIANT SEXUAL BEHAVIOR TOWARD MINORS

1. Evidence of the Accused's Character for Non-Deviant Sexual Behavior Towards Children is Admissible

In People v. Stoll (1989) 49 C.3d 1136, 265 Cal.Rptr. 111, the California Supreme Court ruled that a defendant could present of good character to show non-commission of a crime.  The court found that the legislature implicitly endorsed lack of deviance as a relevant character trait in a lewd and lascivious conduct case.

The Absence of a “Disposition” Tends to Prove That Defendant Has Not Committed the Crime. Thus, criminal defendants may use character evidence to prove conduct in conformity with character as provided in Evidence Code §1102.  People v. Stoll, supra at 1159.  This is an exception to the general rule as set forth in Evidence Code §1101 prohibiting use of evidence of a person's s character (by opinion, reputation or specific instances) to prove conduct on a specified occasion. Defendants can offer lack of deviance as circumstantial evidence that a defendant is unlikely to have committed charged acts of molestation.  Ibid.  Stoll contemplates that the testimony is offered by the defendant to suggest that he did not commit the requisite act.  

1. The Accused Can Introduce Lay Opinion Character Evidence Of His Non Deviant Sexual Behavior

Evidence Code Section 800 provides:

If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is:

(a) Rationally based on the perception of the witness; and

(b) Helpful to a clear understanding of his testimony.

Lay opinion evidence based on personal observation of defendant's conduct with children is a proper subject of lay opinion testimony and is relevant to a charge of child molest where the opinion is based on long term observation of defendant's consistently normal behavior around children.  People v. McAlpin (1991) 53 C.3d 1289, 283 Cal.Rptr. 382.  

Testimony of lay witnesses not based solely on specific instances in which the defendant could have molested children, but based on long term personal observation of the defendant's consistently normal behavior with children is admissible.  Ibid.  Testimony that the defendant does not have a reputation for being sexually attracted to young girls is relevant and admissible character evidence in a charge of child molest.  Ibid.  The rationale behind this is that evidence that the defendant does not have a bad reputation for relevant character trait (sexual deviancy) is admissible as tending to show he has a good reputation for that trait.  Evidence Code § 1102.  People v. McAlpin, supra.  Reputation evidence is the estimation in which an individual is held.  It is the character imputed to an individual rather than what is actually known of him by the witness or others.  Such testimony does not need to be based on personal observation of the witness.  Id.

Testimony of character witnesses that the defendant has a reputation as a person of high moral sexual character is also relevant and admissible reputation opinion evidence.  Id. 

In the case of Holland vs. Zollner (1894) 102 C 633, 638, 36 P 930, the court first established the use of lay opinion to describe various mental and moral aspects of humanity.  These included temper, fear, anger and excitement. “Love, hatred, sorrow, joy, and various other mental and moral operations, find outward expression, as clear to the observer as any fact coming to his observation, but he can only give expression to the fact by giving to him the ultimate fact, and which for want of a more accurate expression, we call opinion.” Ibid. at 638.

1. Conclusion

Lay witnesses who are familiar with the parties can testify as to their personal opinion as to the defendant's character for sexual non-deviancy toward children.  Lay witnesses can testify as to the defendant's reputation for non-deviant sexual character.

.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

DEFENDANT MOVES TO EXCLUDE WITNESS OPINIONS THAT ALLEGED VICTIM(S) ARE BEING TRUTHFUL

• Orders Requested by Defendant 

Defendant moves for a protective order that:

1. Parents of the alleged victim(s), police officer(s), psychiatrist(s), psychologist(s), Child Protective Services worker(s), counselor(s), or any other witness (hereinafter referred to as "witnesses") shall not be asked by the District Attorney their opinion on the truthfulness of the alleged victim(s)' allegations.
2. Said individuals not be permitted to testify that the alleged victim appeared to be truthful.
3. The District Attorney shall be instructed to caution all witnesses prior to their testimony that the witnesses shall not volunteer their opinion on the truthfulness or the appearance of the alleged victim(s)' allegations.

• Police Officers May Not Testify as to their Opinion Whether a Victim Reported A Crime Truthfully or Appeared to be Truthful

A police officer's testimony regarding the truth or veracity of a complainant is not admissible.  This is because the officer's statements do not qualify as either character evidence or as lay or expert opinion.  (People vs. Sergill (1982) 138 Cal.App.3d 34, 187 Cal. Rptr. 497 [case involving a prosecution for oral copulation with a minor].)  

In Sergill, the trial court permitted two police officers to testify to the effect that the eight-year-old victim was telling the truth when she reported that defendant, her uncle, had sexually molested her.  Defendant's conviction was reversed because the testimony of the two officers has been improperly admitted.  (Id., at p. 41.)

The Sergill court found that the officers were not qualified to testify to the victim's reputation for honesty since they did not know her and were unaware of any such reputation.  There was no basis to admit their testimony as to her truthfulness as expert opinion because nothing in the record established the officers as experts in judging truthfulness.  Their testimony was not admissible as lay opinion because they had described their interview with her in detail and their opinions as to her truthfulness did not meet the statutory requirement of being helpful to a clear understanding of her testimony.  Further, the court found such testimony irrelevant as it did not fall within any of the categories set forth in Evidence Code section 780, enumerating factors bearing on credibility.  (Id., at pp. 38040.)  For the same reasons, any police officer's opinion of the victim's testimony herein is inadmissible.  The holding of Sergill has been endorsed by other courts.  (See e.g., People vs. Melton (1988) 44 Cal.3d 713, 744; People vs. Smith (1989) 214 Cal.App.3d 904, 915.)

A lay witness may “describe [his] interviews with [the witness] in detail, leaving the factfinder free to decide. . .credibility for itself, based on such factors as his demeanor or motives, his background, his consistent or inconsistent statements on other occasions, and whether his statements. . . had the essential ring of truth.”  (People v. Melton, supra, 44 Cal.3d at pp. 744-745.)  Thus, a lay witness may state that a witness appeared fearful or sincere.  However, for a lay witness to testify that the alleged victim “appeared to be” telling the truth is the ultimate conclusion to be drawn from all the circumstances, including his conduct and demeanor and is thus inadmissible lay opinion pursuant to Melton and Sergill.

• A Psychiatrist's Testimony on the Credibility of a Witness is also Inadmissible for the Above Reasons and, More Importantly, Because the Jury May Place too Much Reliance on it

People vs. Manson (1976) 61 Cal.App.3d 102, 132 Cal. Rptr. 265, discussed the question whether a psychiatrist should be allowed to give his opinion concerning the veracity of a witness.  Manson and his co-defendants relied on Ballard vs. Superior Court (1966) 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.d 838, to demand that Kasabian, a prosecution witness, be examined by a court-appointed psychiatrist to determine her competency and credibility.  The court in finding no necessity for such examination discussed the Ballard provision for appointment of a psychiatrist to examine a prosecution witness in a sex offense case concerning the veracity of the witness.  The court noted: 

While we do not suggest that Ballard is necessarily limited to cases involving sex offenses, we here accept the admonition that a psychiatrist's testimony on the credibility of a witness may involve many dangers; the psychiatrist's testimony may not be relevant; the techniques used and theories advanced may not be generally accepted; the psychiatrist may not be in any better position to evaluate credibility than the juror; difficulties may arise in communication between a psychiatrist and a jury; too much reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists may cloud rather than clarify issues; the testimony may be distracting, time consuming, and costly. People vs. Russell (1968) 69 Cal.2d 187, 195, 70 Cal.Rptr. 210, 443 P.2d 794, Cert.Denied 393 U.S. 864, 89 Sup.Ct. 145, 21 L.Ed.2d 132.” 

People vs. Manson, supra, 61 Cal.App. 3d at pp. 137-138.

Since Ballard and its progeny have since been overruled by Penal Code Section 1112 and the sound logical reasons for not accepting a psychiatrist's testimony on the credibility of a witness still stand, psychiatrists and other like experts must not be allowed to give an opinion as to whether an alleged victim is telling the truth.  

Applicable case law is in accord.  For example, in People v. Coffman and Marlowe (2004) 34 Cal.4th 1, 82, a psychologist’s opinion that she believed a child abuse victim told the truth during an interview was inadmissible.  In People vs. Willoughby (1985) 164 Cal.App.3d 1054 at p. 1070, 210 Cal. Rptr. 880 at 890, in which the defendant's conviction was reversed, the court held that on retrial, evidence of a sexual trauma expert on the subject of the victim's truthfulness about the alleged act would be inadmissible.  In People vs. Ainsworth (1988) 45 Cal.3d 984, a psychiatrist who testified in a co-defendant's case as to that individual's capacity to form the requisite mental state for the crime charged was permitted to testify that he found no evidence of premeditation and deliberation and that he felt that the co-defendant had been forthright in relating the events to him and was feigning or trying to cover up anything.  (Id., at p. 1011.)  The reviewing court found such testimony relevant to the reliability of the doctor's conclusions and distinguished it from the situation where a psychiatrist is asked to assess a witness's ability to testify truthfully, "We agree that, in such cases, where the sole purpose of the psychiatric examination and testimony relates to the credibility of a witness, the psychiatrist may not testify to the ultimate question of whether the witness is telling the truth on a particular occasion."  (Id., at p. 1012.)  Ainsworth was cited with approval in People vs. Castro (1994) 30 Cal.App.4th 390, 396, in which the appellate court upheld the trial court's refusal to allow the defense to elicit testimony from the victim's psychologist that the victim had stated her claim that the defendant had molested her was false.  As the court stated, "Because defendant's offer of proof was narrowly directed at the truth of Sarah's molestation allegation, the trial court had no discretion to admit the proffered evidence."  (Id., at p. 396.).

There has been no case allowing expert testimony or lay opinion that the victim is truthful about the alleged act.  People vs. Stoll (1990) 49 Cal.3d 1136, 265 Cal.Rptr. 111 dealt with the personality profiles of defendants, under Evidence Code § 1102.  In that case, a psychologist's opinion testimony, based upon interviews and standardized tests, was competent but disputable "expert opinion," rather than new "scientific" evidence that had to be proven reliable before it was admitted, was permitted.  As indicated however, Stoll pertained to defendants, not victims, and thus it does not disturb the settled area of law on which this motion is based.

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1. DEFENDANT MOVES TO EXCLUDE ANY AND ALL POLYGRAPH REFERENCES

1. Evidence to Be Excluded

Defendant moves to exclude any reference to polygraphs or lie detectors including, but not limited to the following  : [INSERT EVIDENCE TO BE EXCLUDED]

Transcript of October 30, 2018 Interview of Defendant by Detective Diller at page 10. Also see Incident Report, Bates 28).

As they apply to polygraph evidence, Defendant incorporates by reference the above discussions of relevance, Evidence Code § 352, Court’s Discretion and accidental/incidental mention not opening the door for admission.

1. Polygraph Evidence is Inadmissible

Evidence Code § 351.1 regarding polygraph Examinations, provides:

1. Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post-conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

1. b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.

Since polygraph evidence is itself inadmissible per Evidence Code § 351.1, it follows that any reference thereto is inadmissible as irrelevant and should be excluded.  

1. DEFENDANT MOVES TO EXCLUDE POST MOLESTATION SYMPTOMS OF ALLEGED VICTIM (VICTIM IMPACT EVIDENCE)

•  The Prosecution May Not Introduce Victim Post-Molestation Behavior and Statements to Prove an Alleged Molestation Actually Occurred

Opinion testimony on rape trauma syndrome and Child Abuse Accommodation Syndrome is inadmissible to prove that an alleged victim was sexually attacked but may, in keeping with certain narrow parameters, be admitted to support the credibility of a witness.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 203 Cal. Rptr. 450; In re Sara M. (1987) 194 Cal.App.3d 585. Thus, it is improper to prove that a crime had occurred based on symptoms that the alleged victim exhibited post-crime.  

These symptoms include but are not limited to: 1) Disorientation; Stress; Agitation; Fear; Anxiety; Subdued; Controlled; Flashbacks; Denial; Relives incident; Insecurity; Nightmares; Trauma; Mistrust.  Bledsoe, supra, 36 Cal.3d at p. 242-243 and: 2) Consistency of story; Denial; Unusual sexual knowledge; Feeling of loss of control;  Anger; Depression; Behavioral problems; Sleep disturbances; Nightmares; Eating disorders; False sense of maturity; Trust too much; Trust too little; Fear; Details given over time. In re Sara M., 194 Cal.App.3d at p. 589.

People vs. Jeff (1988) 204 Cal.App.3d 309, 251 Cal. Rptr. 135 is controlling.  In that case the prosecution presented one expert witness who described the alleged complainant's post-molest symptoms, including nightmares, crying, depression, low self-esteem, and helplessness.  The prosecution then presented a second witness to explain these symptoms as evidence of child molest.  Neither witness was called for the purpose of rehabilitating the complaining witness.  (Id., at p. 338.)  The defense objected to the first witness on the ground that it was evidence of post-molest emotions used to prove that the molestation had occurred and objected to the second witness testimony as improper opinion testimony under People vs. Bledsoe, supra and In re Sara M., supra.  The trial court held each witnesses' testimony was admissible with respect to the symptoms exhibited by the complaining victim, but that neither witness would be allowed to state her opinion regarding whether a molestation had in fact occurred.  The Court of Appeal found the admission of such testimony and the trial court's attempt to limit its import ran afoul of the proscriptions set forth in Bledsoe, supra, and its progeny and reversed the defendant's conviction:

It is not significant the prosecutor told the jury Susan Holland would merely describe symptom she observed and “[a]ny conclusion that is to be drawn will be yours.”  In effect and result, the prosecutor, by what he apparently believed was a brilliant subterfuge, engaged in the exact conduct, here condoned by the trial court, that was proscribed in Bledsoe, Gray and In re Sara M.  The challenged testimony was not offered to rehabilitate a wavering or equivocal Gypsy.  Rather, it told the jury that they should accept gypsy's version of these events as true, that she was a victim, molested over a three-year period by defendant, because here is now typical child molest victims act and Gypsy fits the mold perfectly.

People vs. Jeff, supra, 204 Cal.App.3d at p. 340.

That the testimony concerning a complaining witness's post molest symptoms does not come from an expert does not make it admissible.  In In re Christie D. (1988) 206 Cal.App.3d 469, 253 Cal. Rptr. 619, the court held that the non-expert status of witness opinion concerning the sex play with anatomical dolls did not make the play admissible.  (Id., at pp. 478-480.)  The play with anatomical dolls was not relevant to establish a molestation had occurred since there was no study showing its reliability as a predictor whether the opinions interpreting the play were formed by the expert or the trier of fact.  Therefore, since experts cannot form opinion interpreting post-molest symptoms as a predictor of molest, the non-expert status of the witness does not cure the problem.

• Alleged Post-Molestation Symptoms are Inadmissible as Improper Victim Impact Evidence Absent a Theory of Relevance

Victim impact evidence, i.e., post-molest symptoms, is inadmissible at the guilt phase of a trial unless relevant to a specific disputed issue in the case.  For example, in People v. Redd (2010) 48 Cal.4th 691, the victim’s testimony concerning the permanency of his injuries was deemed relevant to a charged great bodily injury enhancement.  (Id., at p. 731-732.)  In People v. Taylor (2001) 26 Cal.4th 1155, 1171, a doctor’s testimony about the victim’s injuries and loss of bodily functions was held relevant to show the extent of said injuries and confirm he could accurately recall the incident.  

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Generally, victim impact evidence (or victim impact argument by the prosecution) at the guilt phase is inadmissible as having little probative value and great prejudicial effect.  In People v. Vance (2010) 188 Cal.App.4th 1182, the defendant’s murder conviction was reversed where the prosecutor made a victim impact argument during his argument to the jury.  The court noted that such argument is banned at the guilt phase, stating, “The justification for both of these exclusionary policies is that they deal with subjects that are inherently emotional, possessing an unusually potent power to sway juries, and that their use must therefore be rigidly confined and controlled.”  (Id., at 1193.)  

Other jurisdictions are in accord.  See Colon v. Georgia (2005) 619 S.Ed.2d 773 [victim impact evidence in child molest case admissible to rebut defendant’s attack on credibility of child victim]; United States v. Copple (3rd Cir. 1994) 24 F.3d 535, 546 [error to admit victims’ testimony about negative effects of defendant’s fraud on their health and savings, such testimony was more prejudicial than probative]; Sager v. Maass (D.C. Ore. 1995) 907 F. Supp. 1412, 1419-1420 [ineffective assistance of trial counsel for said counsel to introduce at guilt phase victim’s entire written victim impact statement, which was a “prejudicial piece of evidence”]; Armstrong v. State (Wyo. 1992) 826 P.2d 1106, 1116 [“Consideration of victim-impact testimony or argument remains inappropriate during proceedings determining the guilt of an accused”]; Miller-El v. State (Tex. Crim. App. 1990) [in an attempted murder case, a victim’s paraplegic disability hardship held inadmissible in the guilt phase: “We cannot agree, however, that [Dr.] Harrison’s testimony regarding Hall’s future hardship as a paraplegic had any tendency to make more or less probably the existence of any fact of consequence at the guilt stage of trial”].

Based on these authorities, victim impact evidence in this case must be excluded unless the prosecution can articulate a theory of relevance and this Court conducts the necessary balancing of interests under Evidence Code section 352.     

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• Evidence Code § 352 Precludes Testimony of Post-Molest Symptoms (Victim Impact Testimony), Further, the Admission of Such Evidence Would Violate Defendant’s Federal Constitutional Right to Due Process and a Fair Trial

Evidence Code § 352 permits the trial court in its discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial impact, if it will consume an undue amount of time, confuse the issues or mislead the jury.  “The prejudice which [section] 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations] Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation].  People vs. Harris (1998) 60 Cal.App.4th727 (internal quotation marks omitted).

Testimony of a victim’s post-molest symptoms cannot be used to establish the molestation occurred, is extraneous to the case, highly prejudicial and will engender undue sympathy for her and hence antipathy for the defendant.  In finding that such evidence had been erroneously admitted, the Third Circuit Court of Appeals in Copple, supra, explained:

Testimony such as this had either no, or very little probative value and was unfairly prejudicial.  We believe that it was irrelevant either for the purposes of proving that Copple had failed to make up the loss to the funeral directors or for any other reason. Even if there had been some marginal relevance to the testimony about the particular personal or professional impact the losses had on the funeral directors, its principal effect, by far, was to highlight the personal tragedy they had suffered as victims of the scheme.  The testimony was designed to generate feelings of sympathy for the victims and outrage toward Copple for reasons not relevant to the charges Copple faced.  It arguably created a significant risk that the jury would be swayed to convict Copple as a way of compensating these victims wholly without regard to the evidence of Copple’s guilt.

United States v. Copple, supra, 24 F.3d at 546.

Further, such evidence may result in an undue consumption of time.  For example, if the victim were to testify to having nightmares or to being withdrawn, the defense on cross-examination will have the right to search for alternate explanations which would include everything that ever happened to the child that could cause these symptoms making for an endless trial.  

Defendant further submits that the admission of post-molest symptoms/victim impact evidence in this case would violate his constitutional rights to due process and a fair trial under the 5th, 6th and 14th Amendments to the U.S. Constitution and article 1, sections 7 and 15 of the California Constitution.  (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 [reversal of murder conviction because of other crimes evidence of the defendant’s knife collection and fascination with knives violated federal due process where that evidence was irrelevant to the crime charged]; Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 887 [same]; Clark v. Duckworth (7th Cir. 1990) 906 F.2d 1174 [the defendant has a federal constitutional right to a trial free of irrelevant and prejudicial evidence].)

• If This Court Permits the Prosecution to Admit Evidence of The Victim's Post-Molest Symptoms, Then it Must Allow the Defense To Offer Evidence Of Alternative Explanations for Those Symptoms.

Should this court allow the prosecution to admit evidence of the complaining witness's alleged post-molest symptoms as a valid predictor of a crime, due process compels it to allow the defense to present evidence of alternative explanations for those symptoms.  (People vs. Reeder (1978) 82 Cal.App.3d 543, 550; People vs. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)  As stated in Reeder:

Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements.

Reeder, supra at p. 553, emphasis added.

Depending on what symptoms are presented there may be many alternative explanations in this case.  For example, LC is known to have a host of mental issues. RC has a known learning disability.  CG has a known serious heart condition

• Conclusion

Based on the foregoing, the prosecution should be excluded from presenting evidence of the alleged complainant's post-molest symptoms as a predictor that a molestation in fact occurred and because such evidence constitutes improper victim impact evidence inadmissible at the guilt phase.  If the court allows such evidence, it must allow the defense to admit evidence of alternative explanations for the existence of such symptoms.

1. DEFENDANT MOVES TO EXCLUDE ALLEGED VICTIM’S STATUS AS “IN THERAPY” 

• In Limine Orders Requested

The defense moves for orders in limine that the prosecution be precluded from introducing evidence:

1. That alleged victims are receiving therapy due to Defendant’s charged conduct (child molestation, etc.)
2. Alleged victims are in need of psychological counseling due to Defendant’s charged conduct (child molestation, etc.).
3. B. A Victim’s Alleged participation in or need for therapy is Irrelevant

It is fundamental that only evidence relevant to prove or disprove a material fact is admissible. Evidence Code §§210, 350-351.

Expert opinion testimony that an alleged victim suffers from rape trauma syndrome or child molest syndrome is inadmissible to prove that any rape or molest/abuse occurred.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 238; People vs. Roscoe (1985) 168 Cal.App. 1093, 1099-1100.)

Evidence Code §352 requires the trial court to balance any asserted probative value of a particular piece of evidence against its prejudice and exclude evidence the prejudice of which outweighs its probative value or has a substantial danger of confusing the issues or misleading the jury. Here, the fact that the alleged victim may be in therapy would only serve to create undue sympathy for her at the defendant's expense and would confuse the issues.  Such evidence must therefore be excluded.

1. DEFENDANT MOVES TO EXCLUDE EVIDENCE OF DEFENDANT’S PRIOR DRUG USE

• Evidence to be Excluded

During her January 8, 2019 interview, LC told Detective Liller: “[Defendant has] been clean.  He did drugs when – in his 20s...He was a methamphetamine user and he ended up quitting and becoming this upstanding family guy...He wasn’t using anything.”  (January 8, 2019 Interview Transcript at page 12 - 10:09).

• Defendant’s prior drug use is Irrelevant

As they apply to drug use evidence, Defendant incorporates by reference the above discussions of relevance, Evidence Code § 352, Court’s Discretion and accidental/incidental mention not opening the door for admission.

Defendant’s drug use does not relate to any material disputed fact in this litigation.

• Defendant’s prior drug use is Inadmissible Character Evidence

Generally, “[e]vidence of traits of…character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.” Cal. Evid. Code § 786.  As noted above, Defendant’s recreational use of drugs ended when he was twenty and he is currently years 44 years old , (DOB: 2-24-1974) and is of no relevance currently (or even back then) to “honesty or veracity, or their opposites.” 

Evidence Code § 1101(a) provides that evidence of a person's character or trait is inadmissible when offered to prove his conduct on a specific occasion.  Admissibility requires the act to be “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”  Evidence Code § 1101(b). Defendant’s prior drug use is not relevant to any of these issues.

In People v. Reid, 133 Cal. App. 3d 354, evidence of a defendant’s prior drug abuse was found to have been improperly admitted.  “[T]he admissibility of other crimes evidence must be scrutinized with great care because of its highly inflammatory and prejudicial effect on the trier of fact.  People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289, 611 P.2d 883].  Accordingly, when such evidence is proffered by the prosecution, its admissibility depends on three principal factors: ‘(1) the materiality of the facts sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and(3) the existence of any rule or policy requiring exclusion of relevant evidence.’ (Id., at p. 315.).”  People v. Reid, 133 Cal. App. 3d 354, 361-62, 184 Cal. Rptr. 186, 190 (1982).

In People v. Thompson (1980) 27 Cal.3d 303, 314; 165 Cal.Rptr. 289, 611 P.2d 883, because the prosecution did not establish how that drug abuse resulted in appellant's motive for committing the robberies, the evidence of drug abuse alone did not have a tendency to prove a motive for the robberies. Further, because of the substantial prejudicial effect inherent in other crimes evidence, uncharged offenses are admissible only where they had substantial probative value, and if there is any doubt as to that value, the evidence should be excluded.  Cal.Evid 352, 

In People v. Tuggles (2009)179 Cal. App. 4th 339, 100 Cal. Rptr. 3d 820, the trial court was fond not to have abused its discretion or violate any federal constitutional rights by restricting cross-examination of an accomplice about his drug abuse and mental health issues based on undue consumption of time. Evidence Code § 352.  See also People v. Rodriguez (1986) 42 Cal. 3d 730, 230 Cal. Rptr. 667, 726 P.2d 113, reh’g denied (Evidence regarding state witness’s history of drug abuse and psychiatric treatment five and six years before trial did not have sufficient bearing upon credibility of her testimony at trial to make its exclusion an abuse of discretion).

1. DEFENDANT MOVES TO EXCLUDE SUBTERFUGE AROUND BLEDSOE, THE INTRODUCTION OF PROFILE EVIDENCE, AND THE INTRODUCTIONS OF STATISTICAL EVIDENCE AS TO THE FREQUENCY OF FALSE ACCUSATIONS IN LIMINE ORDERS REQUESTED

1. In Limine Orders Requested

The defense moves for orders in limine that the prosecution be precluded from introducing expert testimony to dispel alleged myths regarding sex/sex crimes/molestation (and the like) unless and until:

1. There be a hearing outside the presence of the jury for the prosecution to specify the alleged myth and a contested hearing as to whether it is actually a myth.
2. The testimony be narrowly limited to only those items found by the court to actually be myths.
3. That the testimony to dispel a myth be limited to victims as a class.
4. That testimony as to profiles of child molesters be excluded; and
5. That testimony as to the percentage of false allegations of molestation be excluded (as set forth above).

• Use of Expert Testimony to Dispel Myths Should be Sharply Limited

In People vs. Bledsoe (1984) 36 Cal.3dd 236, 249, the California Supreme Court held that rape trauma syndrome was inadmissible to show a rape had actually occurred, but could be admissible to “disabus[e] the jury of some widely held misconceptions about rape and rape trauma victims so that it may evaluate the evidence free of the constraints of popular myths.”

Subsequently, reviewing courts have held valid the use of expert testimony to dispel myths about child molest victims.  However, the testimony is limited to victims as a class and not a particular alleged victim.  People vs. Roscoe (1985) 168 Cal.App.3d 1093, 1098-1100; People vs. Gray (1986) 187 Cal.App.3d 213, 218; People vs. Coleman (1989) 48 Cal.3d 112, 144; and People vs. Stark (1989) 213 Cal.App.3d 107, 116-117.  In addition, testimony not properly limited is excludable pursuant to Evidence Code section 352.  (Roscoe, supra, at p. 1100.)

In People vs. Bowker (1988) 203 Cal.App.3d 385, 394, 249 Cal. Rptr. 886, 891, the court considered whether or not the testimony of a child abuse accommodation syndrome expert fell within the Bledsoe exception permitting such testimony for the narrow purpose “of disabusing the jury of misconceptions as to how child victims react to abuse.”  (Id., at p. 392.)  The court reaffirmed that "Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse," and found the expert's testimony had exceeded the Bledsoe exception holding that "at a minimum the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence."  (Id., at pp. 393-394.)  The court further held:

“In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut.  Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id., at p. 394.)

In determining that the expert's testimony erroneously exceeded the permissible limits of the Bledsoe exception, the Bowker court found that the expert's testimony was tailored to fit the children in that particular case, asked for sympathy, asked that children be believed and by describing each aspect of CSAAS theory provided a scientific framework the jury could use to predict a molest occurred.  The court ruled that this evidence should have been excluded.  (Id., at pp. 394-395.)  

Synonyms are also inadmissible.  Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded under the case of People v. Bledsoe, supra.   

Requirement of Jury instruction.  When testimony is introduced to dispel a myth, the jury must be instructed not to use that evidence to predict a molestation has been committed.

Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claims is true.  The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury.  CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.  (See In re Sara M., supra, 194 Cal.App.3d at p. 593, 239 Cal. Rptr. 605.) The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.

Bowker, supra, at p. 394; People vs. Housley (1992) 6 Cal.App.4th 947, 958-959 (instruction required sua sponte).  

• Expert Testimony Concerning About the Characteristics and Conduct Typical of Child Sex Offenders and About Categories of Child Sex Offenders and their Treatment Prognosis Must be Excluded as Profile Evidence

1. Profile evidence is inadmissible.

“A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) A profile may include “any information or data” that places the defendant “in an alleged ‘group’ of persons who have committed offenses in the past.” (United States v. Banks (C.M.A. 1992) 36 M.J. 150, 163.)  Profile evidence is generally inadmissible to prove guilt; every defendant has the right to be tried based on the evidence implicating him in the particular crimes charged, and not on facts accumulated regarding a particular criminal profile. (Robbie, supra, 92 Cal.App.4th at p. 1084.) 

Profile evidence is inherently prejudicial because it proceeds from an erroneous starting point. (Robbie, supra, 92 Cal.App.4th at p. 1085.) The syllogism underlying profile evidence is: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. (Ibid.) The problem is that the major premise is faulty; it implies that criminals, and only criminals act in a given way. (Ibid.) In fact, certain behavior may be consistent with both innocent and illegal behavior. (Ibid.)  

As the Supreme Court has put it, if profile evidence lacks foundation, is irrelevant, or is more prejudicial than probative, it is inadmissible; “[p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt.” (People v. Smith (2005) 35 Cal.4th 334, 358.)   

In Robbie, the prosecution presented testimony of an expert “in the area of the behaviors and conduct of persons who commit sexual assaults.” (id. at p. 1082.) The state may not justify the admission of this testimony as necessary “to disabuse the jury of common misperceptions about conduct [sic] of a rapist,” claiming that “[a] common citizen, inexperienced in rape and rapists, could be understood naturally to believe that a rape is a harsh, violent, threatening, and unrelentingly brutal experience.” (Id. at pp. 1082-1083, 1085-1086.)  The Robbie prosecutor further contended that the evidence was akin to evidence the Supreme Court had approved in McAlpin, to rebut the common assumption that child molesters were “old [men] in shabby clothes who loiter[] in playgrounds and schoolyards and lure[] unsuspecting children into sexual contact by offering them candy or money.” (Robbie, supra, 92 Cal.App.4th at p. 1086.)

The Robbie court rejected these arguments. It distinguished the evidence from that approved in McAlpin, noting that the expert properly could have testified that rapists behave in a variety of ways and that there is no typical rapist. (Robbie, supra, 92 Cal.App.4th at p. 1087.) In Robbie, by contrast, the expert “did not merely attack the stereotype by explaining that there is no ‘typical sex offender.’ Instead, she replaced the brutal rapist archetype with another image: an offender whose behavioral pattern exactly matched defendant’s.” (Ibid.)

Robbie is in accord with precedent across the state and across the country. (See, e.g., People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 [court erred in admitting profile evidence; expert testified about operations of auto theft rings, including type of car, route of travel, and fact that most of those arrested denied knowing the vehicle they drove was stolen]; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072 [testimony that defendant fit the profile of typical Northern San Diego County heroin dealer was inadmissible]; People v. Covarrubias (2011) 202 Cal.App.4th 1, 16 [drug courier profile evidence is inadmissible]; United States v. Pineda-Torres (9th Cir. 2002) 287 F.3d 860, 865 [expert provided testimony about the structure of drug trafficking organizations, thus “attribut[ing] knowledge to the defendant by attempting to connect him to an international drug conspiracy . . . .”]; Haakanson v. State (Ct. App. Alaska 1988) 760 P.2d 1030, 1035-1036 [profile testimony, which identified otherwise innocent characteristics and behavior as evidence of guilt, was inadmissible under Alaska law]; Sloan v. State (Ct. Special App. Md. 1987) 522 A.2d 1364, 1369 [reversal where expert testified about “classic indicators of child abuse”]; Kansas v. Clements (1989) 244 Kan. 411, 420 [evidence that describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question]; Banks, supra, 36 M.J. at pp. 155-157, 160-164, 170-171 [reversing for cumulative error including court’s admission of evidence that defendant and his family fit a profile of child sex abuse because defendant was a stepfather who did not have a good marital sexual relationship]; Kirby v. State (Ct. App. Tex.2006) 208 S.W.3d 568, 573-574 [profile evidence inadmissible to prove guilt]; Commonwealth v. LaCaprucia (App. Ct. Mass. 1996) 671 N.E.2d 984, 986-987, 989 [expert profile testimony that presented defendant’s family situation as one prone to sexual abuse was erroneously admitted and, along with other erroneously-admitted evidence, required reversal]; Ryan v. State (Wyo. 1999) 988 P.2d 46, 55 [“Those jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt.”].)

Even if the expert frames her opinions cautiously — indeed, in Robbie, the expert apparently admitted that the behavior she described may be consistent with both innocent and illegal behavior (Robbie, supra, 92 Cal.App.4th at pp. 1083, 1085) — profile evidence is dangerously misleading. As the court explained in Raymond, supra, 700 F.Supp.2d at p. 150, while the expert him or herself may be very careful in using profiles, “a jury may make the quick and unjustified leap from his expert testimony about behavioral patterns to guilt in a particular case that shows similar patterns.”

Finally, that an expert does not specifically opine that a defendant shares the characteristics of a typical child molester does not render the testimony any less improper and prejudicial.  In Robbie, the expert testified by way of hypothetical, without directly opining that the defendant fit the profile she had drawn. (Robbie, supra, 92 Cal.App.4th at pp. 1082-1084.) In Buzzard v. State (Ct. App. Ind. 1996) 669 N.E.2d 996, 1000. (14RT 2872 [prosecutor: “Mr. Martin’s got a sickness. It’s not his fault. Didn’t choose to be this way. He’s struggling with it.”]; see People v. Walkey (1986) 177 Cal.App.3d 268, 279 [although expert never expressly concluded defendant fit the profile, his testimony clearly tended to associate defendant with a group who, in the expert’s opinion, are often child abusers].)

In People v. Bradley (Ill. 4th Dist. 1988) 526 N.E.2d 916, the court reversed where the prosecution’s expert listed characteristics said to be typical of perpetrators of child sexual abuse, noting that while the trial court had prohibited the parties from specifically connecting these characteristics to the defendant, that only exacerbated the problem, leaving the jury to speculate as to whether the defendant fit the very general profile described by the expert. (Id. at p. 921.)

In sum, because an expert’s testimony does not merely refute the purported stereotype of a typical child molester, but replaces that stereotype with a new type of offender, whose conduct and attributes matched those the prosecution attributes to the defendant,  — and which were as consistent with innocence as with guilt — the evidence is inadmissible.

1. Admission of such testimony would violate Defendant’s right to a fair trial and to due process of law

The erroneous admission of such testimony violates due process by rendering the trial fundamentally unfair. (See Partida, supra, 37 Cal.4th at p. 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913; Duncan v. Henry (1995) 513 U.S. 364, 366; see also Lisenba v. California (1941) 314 U.S. 219, 236 [“The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.”]; U.S. Const., 14th Amend.)

When there are no permissible inferences to be drawn from the evidence, and it is of “such quality as necessarily prevents a fair trial,” due process is violated. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; People v. Albarran (2007) 149 Cal.App.4th 214, 229-232.) Such evidence violates due process when it “‘is material in the sense of a crucial, critical, highly significant factor.’ [Citation.]” (Snowden v. Singletary (11^th Cir. 1998) 135 F.3d 732, 737.)

No permissible inference can be drawn from testimony about a particular type of sex offender whose conduct and characteristics matches those attributed to the defendant. Indeed, “[t]he only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” (Clements, supra, 244 Kan. at p. 420.)

Similarly, no permissible inference can be drawn from evidence that two to five percent of men are sexually attracted to children, and that that attraction is innate, immutable, and untreatable. Such evidence only invites speculation about the likelihood that the defendant is one of those men, and about whether he would go on to abuse children if not convicted, and risks conviction because jurors believe that the defendant is a pedophile, not because they believe the elements of the crimes charged have been proven beyond a reasonable doubt. (Cf. Collins, supra, 68 Cal.2d at p. 329 [statistical evidence “could only lead to wild conjecture without demonstrated relevancy to the issues presented”].)

1. DEFENDANT MOVES TO EXCLUDE COUNSEL ARGUING CONSEQUENCES OF AN ACQUITTAL

• In Limine Orders Requested

The defense moves for orders in limine that the prosecution be precluded from arguing:

1. That an acquittal would allow Defendant to resume teaching children at Bible Studies again;
2. That an acquittal would put Defendant on the streets and as a consequence, put children at risk of molestation;
3. That the jurors should consider the reaction of neighbors to a verdict of not guilty.

/ / /

• It Would be Improper for the Prosecution to Argue Consequences of an Acquittal

It is improper for a prosecutor to urge the jury to convict because of the possible consequences of a failure to do so. Such probable consequences which would be inappropriate to argue would include arguments to the effect that an acquittal would permit the defendant to resume teaching and consequently might put other children “ at risk of molestation. “ Caselaw is clear that while commentary on a defendant's future dangerousness may be proper in the sentencing context, it has no place at the guilt phase of a trial.  (People v. Hayes (1990) 52 Cal.3d 577, 635; Com. Of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475, 487 [conviction reversed where prosecutor urged that defendant could go out and kill again if acquitted because gun was still out there]; United States v. Cunningham (7^th Cir. 1995) 54 F.3d 295, 300 ["The government may not attempt to obtain a conviction by appealing to jurors to prevent future crimes by finding present guilt."].)   

In People v. Mendoza (1974) 37 Cal.App.3d 717,727, the defendant was charged with committing a lewd act upon a child under 14 years of age.  During closing argument, the prosecutor asked the jury to 'take the defendant off the streets.' The Court of Appeal reversed the conviction, finding that said comment by the prosecutor coupled with several other objectionable ones was not harmless error.  In finding the prosecutor's exhortation to the jurors to take the defendant off the streets error, the Court explained that “California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury’s responsibility is limited to the determination of the defendant’s guilt or innocence of the charge against him.” (Id., at p. 726.)  Similarly, in People v. Duckworth (1984) 162 Cal.App.3d 1115, 1123-1124, the prosecutor's argument during the sanity phase of trial which implied that the defendant would be on the streets and would thus pose a danger to society if he were found insane was reversible error. 

It is likewise improper for the prosecution to argue that the jury has a moral obligation to protect society from the defendant, or that if the defendant is acquitted, he will commit more crimes.  In People v. Whitehead (1957) 148 Cal.App.2d 701, the prosecution argued improperly in a child molest trial that men of the defendant’s age commit offenses of this character and his [the prosecutor's] office’s experience is that if such men are acquitted, they will repeat the same character of offense.  (Id., at p. 705.)  The reviewing court found such argument "highly inflammatory" and reversed the defendant's conviction.  (Id., at p. 705-706.)   

Furthermore, it is improper for the prosecution to argue that the jury should consider what the reaction of their neighbors would be if they were to acquit the defendant. In People v. Purvis (1963) 60 Cal.2d 323, 342, (overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631) the court reversed a first degree murder conviction based on prosecutorial misconduct which included a comment from the prosecutor following trial publicity in the Oakland Tribune newspaper which “threatened the jury with the statement that 'those outside that are not part of this jury have their eyes focused upon you just to see what you are going to do * * *.' The court held “A warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper (48 Cal.Jur.2d, Trial, s 439, p. 446). 

DEFENDANTS OPPOSITIONS TO THE PEOPLE’S MOTIONS IN LIMINE

1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING VICTIM’S PRIOR SEXUAL CONDUCT

Defendant opposes the Prosecution’s Motion in limine regarding victim’s prior sexual conduct on the same grounds that the Defense makes the above motion for admitting such evidence under Evidence Code § 782 which is hereby incorporated by reference at this point.  

1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING REGARDING REFERENCES TO STANDARDS OF PROOF.

The People motion in limine to preclude the defense from making any comparisons or

references to any standards other than reasonable doubt is misplaced and not supported by any applicable law.  In support, the People cite People v. Katzenberger (2009)178 Cal. App. 4th 1260, 1266, 101 Cal. Rptr. 3d 122, 126. However, the case is inapposite. Katzenberger precludes the prosecution from attempting to confuse the jury regarding standards of proof, ie. Suggesting that a conviction for example could be by either “clear and convincing” or a “preponderance” of evidence.  Here, counsel for Defense may wish during closing to compare the standard to clarify to the jury what “beyond a reasonable doubt” means. Accordingly, the People’s motion in limine in this regard should be denied. 

DEFENDANTS PROPOSED JURY INSTRUCTIONS

Defendant joins the People’s jury instruction except as to:

1. CALCRIM 315 as to Eyewitness Identification because there is no issue as to identification in this case; and 
2. CALCRIM 1193 Testimony on Child Sexual Abuse Accommodation Syndrome, states:

Testimony on Child Sexual Abuse Accommodation Syndrome You have heard testimony from <insert name of expert>regarding child sexual abuse accommodation syndrome’s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her).You may consider this evidence only in deciding whether or not’s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony. 

New January 2006; Revised August 2016.

Defendant respectfully submits that CALJIC 10.69 provides a clearer and more accurate statement of the law. It states as follows:

Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. 

Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

DEFENDANT MOVES TO EXCLUDE EVIDENCE OF DEFENDANT’S PRIOR DRUG USE

• Evidence to be Excluded

During her January 8, 2019 interview, LC told Detective Liller: “[Defendant has] been clean.  He did drugs when – in his 20s...He was a methamphetamine user and he ended up quitting and becoming this upstanding family guy...He wasn’t using anything.”  (January 8, 2019 Interview Transcript at page 12 - 10:09).

• Defendant’s prior drug use is Irrelevant

As they apply to drug use evidence, Defendant incorporates by reference the above discussions of relevance, Evidence Code § 352, Court’s Discretion and accidental/incidental mention not opening the door for admission.

Defendant’s drug use does not relate to any material disputed fact in this litigation.

• Defendant’s prior drug use is Inadmissible Character Evidence

Generally, “[e]vidence of traits of…character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.” Cal. Evid. Code § 786.  As noted above, Defendant’s recreational use of drugs ended when he was twenty and he is currently years 44 years old , (DOB: 2-24-1974) and is of no relevance currently (or even back then) to “honesty or veracity, or their opposites.” 

Evidence Code § 1101(a) provides that evidence of a person's character or trait is inadmissible when offered to prove his conduct on a specific occasion.  Admissibility requires the act to be “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”  Evidence Code § 1101(b). Defendant’s prior drug use is not relevant to any of these issues.

In People v. Reid, 133 Cal. App. 3d 354, evidence of a defendant’s prior drug abuse was found to have been improperly admitted.  “[T]he admissibility of other crimes evidence must be scrutinized with great care because of its highly inflammatory and prejudicial effect on the trier of fact.  People v. Thompson (1980) 27 Cal.3d 303, 314 [165 Cal.Rptr. 289, 611 P.2d 883].  Accordingly, when such evidence is proffered by the prosecution, its admissibility depends on three principal factors: ‘(1) the materiality of the facts sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and(3) the existence of any rule or policy requiring exclusion of relevant evidence.’ (Id., at p. 315.).”  People v. Reid, 133 Cal. App. 3d 354, 361-62, 184 Cal. Rptr. 186, 190 (1982).

In People v. Thompson (1980) 27 Cal.3d 303, 314; 165 Cal.Rptr. 289, 611 P.2d 883, because the prosecution did not establish how that drug abuse resulted in appellant's motive for committing the robberies, the evidence of drug abuse alone did not have a tendency to prove a motive for the robberies. Further, because of the substantial prejudicial effect inherent in other crimes evidence, uncharged offenses are admissible only where they had substantial probative value, and if there is any doubt as to that value, the evidence should be excluded.  Cal.Evid 352, 

In People v. Tuggles (2009)179 Cal. App. 4th 339, 100 Cal. Rptr. 3d 820, the trial court was fond not to have abused its discretion or violate any federal constitutional rights by restricting cross-examination of an accomplice about his drug abuse and mental health issues based on undue consumption of time. Evidence Code § 352.  See also People v. Rodriguez (1986) 42 Cal. 3d 730, 230 Cal. Rptr. 667, 726 P.2d 113, reh’g denied (Evidence regarding state witness’s history of drug abuse and psychiatric treatment five and six years before trial did not have sufficient bearing upon credibility of her testimony at trial to make its exclusion an abuse of discretion).

1. DEFENDANT MOVES TO EXCLUDE SUBTERFUGE AROUND BLEDSOE, THE INTRODUCTION OF PROFILE EVIDENCE, AND THE INTRODUCTIONS OF STATISTICAL EVIDENCE AS TO THE FREQUENCY OF FALSE ACCUSATIONS IN LIMINE ORDERS REQUESTED

1. In Limine Orders Requested

The defense moves for orders in limine that the prosecution be precluded from introducing expert testimony to dispel alleged myths regarding sex/sex crimes/molestation (and the like) unless and until:

1. There be a hearing outside the presence of the jury for the prosecution to specify the alleged myth and a contested hearing as to whether it is actually a myth.
2. The testimony be narrowly limited to only those items found by the court to actually be myths.
3. That the testimony to dispel a myth be limited to victims as a class.
4. That testimony as to profiles of child molesters be excluded; and
5. That testimony as to the percentage of false allegations of molestation be excluded (as set forth above).

• Use of Expert Testimony to Dispel Myths Should be Sharply Limited

In People vs. Bledsoe (1984) 36 Cal.3dd 236, 249, the California Supreme Court held that rape trauma syndrome was inadmissible to show a rape had actually occurred, but could be admissible to “disabus[e] the jury of some widely held misconceptions about rape and rape trauma victims so that it may evaluate the evidence free of the constraints of popular myths.”

Subsequently, reviewing courts have held valid the use of expert testimony to dispel myths about child molest victims.  However, the testimony is limited to victims as a class and not a particular alleged victim.  People vs. Roscoe (1985) 168 Cal.App.3d 1093, 1098-1100; People vs. Gray (1986) 187 Cal.App.3d 213, 218; People vs. Coleman (1989) 48 Cal.3d 112, 144; and People vs. Stark (1989) 213 Cal.App.3d 107, 116-117.  In addition, testimony not properly limited is excludable pursuant to Evidence Code section 352.  (Roscoe, supra, at p. 1100.)

In People vs. Bowker (1988) 203 Cal.App.3d 385, 394, 249 Cal. Rptr. 886, 891, the court considered whether or not the testimony of a child abuse accommodation syndrome expert fell within the Bledsoe exception permitting such testimony for the narrow purpose “of disabusing the jury of misconceptions as to how child victims react to abuse.”  (Id., at p. 392.)  The court reaffirmed that "Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse," and found the expert's testimony had exceeded the Bledsoe exception holding that "at a minimum the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence."  (Id., at pp. 393-394.)  The court further held:

“In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut.  Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id., at p. 394.)

In determining that the expert's testimony erroneously exceeded the permissible limits of the Bledsoe exception, the Bowker court found that the expert's testimony was tailored to fit the children in that particular case, asked for sympathy, asked that children be believed and by describing each aspect of CSAAS theory provided a scientific framework the jury could use to predict a molest occurred.  The court ruled that this evidence should have been excluded.  (Id., at pp. 394-395.)  

Synonyms are also inadmissible.  Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded under the case of People v. Bledsoe, supra.   

Requirement of Jury instruction.  When testimony is introduced to dispel a myth, the jury must be instructed not to use that evidence to predict a molestation has been committed.

Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claims is true.  The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury.  CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.  (See In re Sara M., supra, 194 Cal.App.3d at p. 593, 239 Cal. Rptr. 605.) The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.

Bowker, supra, at p. 394; People vs. Housley (1992) 6 Cal.App.4th 947, 958-959 (instruction required sua sponte).  

• Expert Testimony Concerning About the Characteristics and Conduct Typical of Child Sex Offenders and About Categories of Child Sex Offenders and their Treatment Prognosis Must be Excluded as Profile Evidence

1. Profile evidence is inadmissible.

“A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) A profile may include “any information or data” that places the defendant “in an alleged ‘group’ of persons who have committed offenses in the past.” (United States v. Banks (C.M.A. 1992) 36 M.J. 150, 163.)  Profile evidence is generally inadmissible to prove guilt; every defendant has the right to be tried based on the evidence implicating him in the particular crimes charged, and not on facts accumulated regarding a particular criminal profile. (Robbie, supra, 92 Cal.App.4th at p. 1084.) 

Profile evidence is inherently prejudicial because it proceeds from an erroneous starting point. (Robbie, supra, 92 Cal.App.4th at p. 1085.) The syllogism underlying profile evidence is: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. (Ibid.) The problem is that the major premise is faulty; it implies that criminals, and only criminals act in a given way. (Ibid.) In fact, certain behavior may be consistent with both innocent and illegal behavior. (Ibid.)  

As the Supreme Court has put it, if profile evidence lacks foundation, is irrelevant, or is more prejudicial than probative, it is inadmissible; “[p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt.” (People v. Smith (2005) 35 Cal.4th 334, 358.)   

In Robbie, the prosecution presented testimony of an expert “in the area of the behaviors and conduct of persons who commit sexual assaults.” (id. at p. 1082.) The state may not justify the admission of this testimony as necessary “to disabuse the jury of common misperceptions about conduct [sic] of a rapist,” claiming that “[a] common citizen, inexperienced in rape and rapists, could be understood naturally to believe that a rape is a harsh, violent, threatening, and unrelentingly brutal experience.” (Id. at pp. 1082-1083, 1085-1086.)  The Robbie prosecutor further contended that the evidence was akin to evidence the Supreme Court had approved in McAlpin, to rebut the common assumption that child molesters were “old [men] in shabby clothes who loiter[] in playgrounds and schoolyards and lure[] unsuspecting children into sexual contact by offering them candy or money.” (Robbie, supra, 92 Cal.App.4th at p. 1086.)

The Robbie court rejected these arguments. It distinguished the evidence from that approved in McAlpin, noting that the expert properly could have testified that rapists behave in a variety of ways and that there is no typical rapist. (Robbie, supra, 92 Cal.App.4th at p. 1087.) In Robbie, by contrast, the expert “did not merely attack the stereotype by explaining that there is no ‘typical sex offender.’ Instead, she replaced the brutal rapist archetype with another image: an offender whose behavioral pattern exactly matched defendant’s.” (Ibid.)

Robbie is in accord with precedent across the state and across the country. (See, e.g., People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 [court erred in admitting profile evidence; expert testified about operations of auto theft rings, including type of car, route of travel, and fact that most of those arrested denied knowing the vehicle they drove was stolen]; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072 [testimony that defendant fit the profile of typical Northern San Diego County heroin dealer was inadmissible]; People v. Covarrubias (2011) 202 Cal.App.4th 1, 16 [drug courier profile evidence is inadmissible]; United States v. Pineda-Torres (9th Cir. 2002) 287 F.3d 860, 865 [expert provided testimony about the structure of drug trafficking organizations, thus “attribut[ing] knowledge to the defendant by attempting to connect him to an international drug conspiracy . . . .”]; Haakanson v. State (Ct. App. Alaska 1988) 760 P.2d 1030, 1035-1036 [profile testimony, which identified otherwise innocent characteristics and behavior as evidence of guilt, was inadmissible under Alaska law]; Sloan v. State (Ct. Special App. Md. 1987) 522 A.2d 1364, 1369 [reversal where expert testified about “classic indicators of child abuse”]; Kansas v. Clements (1989) 244 Kan. 411, 420 [evidence that describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question]; Banks, supra, 36 M.J. at pp. 155-157, 160-164, 170-171 [reversing for cumulative error including court’s admission of evidence that defendant and his family fit a profile of child sex abuse because defendant was a stepfather who did not have a good marital sexual relationship]; Kirby v. State (Ct. App. Tex.2006) 208 S.W.3d 568, 573-574 [profile evidence inadmissible to prove guilt]; Commonwealth v. LaCaprucia (App. Ct. Mass. 1996) 671 N.E.2d 984, 986-987, 989 [expert profile testimony that presented defendant’s family situation as one prone to sexual abuse was erroneously admitted and, along with other erroneously-admitted evidence, required reversal]; Ryan v. State (Wyo. 1999) 988 P.2d 46, 55 [“Those jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt.”].)

Even if the expert frames her opinions cautiously — indeed, in Robbie, the expert apparently admitted that the behavior she described may be consistent with both innocent and illegal behavior (Robbie, supra, 92 Cal.App.4th at pp. 1083, 1085) — profile evidence is dangerously misleading. As the court explained in Raymond, supra, 700 F.Supp.2d at p. 150, while the expert him or herself may be very careful in using profiles, “a jury may make the quick and unjustified leap from his expert testimony about behavioral patterns to guilt in a particular case that shows similar patterns.”

Finally, that an expert does not specifically opine that a defendant shares the characteristics of a typical child molester does not render the testimony any less improper and prejudicial.  In Robbie, the expert testified by way of hypothetical, without directly opining that the defendant fit the profile she had drawn. (Robbie, supra, 92 Cal.App.4th at pp. 1082-1084.) In Buzzard v. State (Ct. App. Ind. 1996) 669 N.E.2d 996, 1000. (14RT 2872 [prosecutor: “Mr. Martin’s got a sickness. It’s not his fault. Didn’t choose to be this way. He’s struggling with it.”]; see People v. Walkey (1986) 177 Cal.App.3d 268, 279 [although expert never expressly concluded defendant fit the profile, his testimony clearly tended to associate defendant with a group who, in the expert’s opinion, are often child abusers].)

In People v. Bradley (Ill. 4th Dist. 1988) 526 N.E.2d 916, the court reversed where the prosecution’s expert listed characteristics said to be typical of perpetrators of child sexual abuse, noting that while the trial court had prohibited the parties from specifically connecting these characteristics to the defendant, that only exacerbated the problem, leaving the jury to speculate as to whether the defendant fit the very general profile described by the expert. (Id. at p. 921.)

In sum, because an expert’s testimony does not merely refute the purported stereotype of a typical child molester, but replaces that stereotype with a new type of offender, whose conduct and attributes matched those the prosecution attributes to the defendant,  — and which were as consistent with innocence as with guilt — the evidence is inadmissible.

1. Admission of such testimony would violate Defendant’s right to a fair trial and to due process of law

The erroneous admission of such testimony violates due process by rendering the trial fundamentally unfair. (See Partida, supra, 37 Cal.4th at p. 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913; Duncan v. Henry (1995) 513 U.S. 364, 366; see also Lisenba v. California (1941) 314 U.S. 219, 236 [“The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.”]; U.S. Const., 14th Amend.)

When there are no permissible inferences to be drawn from the evidence, and it is of “such quality as necessarily prevents a fair trial,” due process is violated. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; People v. Albarran (2007) 149 Cal.App.4th 214, 229-232.) Such evidence violates due process when it “‘is material in the sense of a crucial, critical, highly significant factor.’ [Citation.]” (Snowden v. Singletary (11^th Cir. 1998) 135 F.3d 732, 737.)

No permissible inference can be drawn from testimony about a particular type of sex offender whose conduct and characteristics matches those attributed to the defendant. Indeed, “[t]he only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” (Clements, supra, 244 Kan. at p. 420.)

Similarly, no permissible inference can be drawn from evidence that two to five percent of men are sexually attracted to children, and that that attraction is innate, immutable, and untreatable. Such evidence only invites speculation about the likelihood that the defendant is one of those men, and about whether he would go on to abuse children if not convicted, and risks conviction because jurors believe that the defendant is a pedophile, not because they believe the elements of the crimes charged have been proven beyond a reasonable doubt. (Cf. Collins, supra, 68 Cal.2d at p. 329 [statistical evidence “could only lead to wild conjecture without demonstrated relevancy to the issues presented”].)

1. DEFENDANT MOVES TO EXCLUDE COUNSEL ARGUING CONSEQUENCES OF AN ACQUITTAL

• In Limine Orders Requested

The defense moves for orders in limine that the prosecution be precluded from arguing:

1. That an acquittal would allow Defendant to resume teaching children at Bible Studies again;
2. That an acquittal would put Defendant on the streets and as a consequence, put children at risk of molestation;
3. That the jurors should consider the reaction of neighbors to a verdict of not guilty.

/ / /

• It Would be Improper for the Prosecution to Argue Consequences of an Acquittal

It is improper for a prosecutor to urge the jury to convict because of the possible consequences of a failure to do so. Such probable consequences which would be inappropriate to argue would include arguments to the effect that an acquittal would permit the defendant to resume teaching and consequently might put other children “ at risk of molestation. “ Caselaw is clear that while commentary on a defendant's future dangerousness may be proper in the sentencing context, it has no place at the guilt phase of a trial.  (People v. Hayes (1990) 52 Cal.3d 577, 635; Com. Of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475, 487 [conviction reversed where prosecutor urged that defendant could go out and kill again if acquitted because gun was still out there]; United States v. Cunningham (7^th Cir. 1995) 54 F.3d 295, 300 ["The government may not attempt to obtain a conviction by appealing to jurors to prevent future crimes by finding present guilt."].)   

In People v. Mendoza (1974) 37 Cal.App.3d 717,727, the defendant was charged with committing a lewd act upon a child under 14 years of age.  During closing argument, the prosecutor asked the jury to 'take the defendant off the streets.' The Court of Appeal reversed the conviction, finding that said comment by the prosecutor coupled with several other objectionable ones was not harmless error.  In finding the prosecutor's exhortation to the jurors to take the defendant off the streets error, the Court explained that “California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury’s responsibility is limited to the determination of the defendant’s guilt or innocence of the charge against him.” (Id., at p. 726.)  Similarly, in People v. Duckworth (1984) 162 Cal.App.3d 1115, 1123-1124, the prosecutor's argument during the sanity phase of trial which implied that the defendant would be on the streets and would thus pose a danger to society if he were found insane was reversible error. 

It is likewise improper for the prosecution to argue that the jury has a moral obligation to protect society from the defendant, or that if the defendant is acquitted, he will commit more crimes.  In People v. Whitehead (1957) 148 Cal.App.2d 701, the prosecution argued improperly in a child molest trial that men of the defendant’s age commit offenses of this character and his [the prosecutor's] office’s experience is that if such men are acquitted, they will repeat the same character of offense.  (Id., at p. 705.)  The reviewing court found such argument "highly inflammatory" and reversed the defendant's conviction.  (Id., at p. 705-706.)   

Furthermore, it is improper for the prosecution to argue that the jury should consider what the reaction of their neighbors would be if they were to acquit the defendant. In People v. Purvis (1963) 60 Cal.2d 323, 342, (overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631) the court reversed a first degree murder conviction based on prosecutorial misconduct which included a comment from the prosecutor following trial publicity in the Oakland Tribune newspaper which “threatened the jury with the statement that 'those outside that are not part of this jury have their eyes focused upon you just to see what you are going to do * * *.' The court held “A warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper (48 Cal.Jur.2d, Trial, s 439, p. 446). 

DEFENDANTS OPPOSITIONS TO THE PEOPLE’S MOTIONS IN LIMINE

1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING VICTIM’S PRIOR SEXUAL CONDUCT

Defendant opposes the Prosecution’s Motion in limine regarding victim’s prior sexual conduct on the same grounds that the Defense makes the above motion for admitting such evidence under Evidence Code § 782 which is hereby incorporated by reference at this point.  

1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING REGARDING REFERENCES TO STANDARDS OF PROOF.

The People motion in limine to preclude the defense from making any comparisons or

references to any standards other than reasonable doubt is misplaced and not supported by any applicable law.  In support, the People cite People v. Katzenberger (2009)178 Cal. App. 4th 1260, 1266, 101 Cal. Rptr. 3d 122, 126. However, the case is inapposite. Katzenberger precludes the prosecution from attempting to confuse the jury regarding standards of proof, ie. Suggesting that a conviction for example could be by either “clear and convincing” or a “preponderance” of evidence.  Here, counsel for Defense may wish during closing to compare the standard to clarify to the jury what “beyond a reasonable doubt” means. Accordingly, the People’s motion in limine in this regard should be denied. 

DEFENDANTS PROPOSED JURY INSTRUCTIONS

Defendant joins the People’s jury instruction except as to:

1. CALCRIM 315 as to Eyewitness Identification because there is no issue as to identification in this case; and 
2. CALCRIM 1193 Testimony on Child Sexual Abuse Accommodation Syndrome, states:

Testimony on Child Sexual Abuse Accommodation Syndrome You have heard testimony from <insert name of expert>regarding child sexual abuse accommodation syndrome’s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her).You may consider this evidence only in deciding whether or not’s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony. 

New January 2006; Revised August 2016.

Defendant respectfully submits that CALJIC 10.69 provides a clearer and more accurate statement of the law. It states as follows:

Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. 

Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF  [COUNTY]

PLEASE TAKE NOTICE that on May 28, 2020 at 9:30 a.m. or as soon thereafter as the matter may be heard, and in the above-designated department, [name of defendant] (“Defendant”) will move this court for an order that any evidence concerning the commission of prior sex acts be excluded pursuant to Evidence Code Sections 1108 and 352 specifically, allegations disclosed to the Defense n May 8, 2020 contained in Incident Report,  Case No. 11900785, CAD Event Number 1903210059 by 3990 - Haack, Dennis dated March 30, 2019 regarding alleged victim, MG. 

This motion will be based upon this notice, the following points and authorities and any other relevant documentation and evidence in this case.

Dated: May 6, 2020

__________________________

Attorney for Defendant

Attorney for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES 

1. SUPPORTING FACTS AND CONTENTIONS
   1. Introduction

Defendant is charged with:

• Count 1: Continue Sexual Abuse in violation of Penal Code § 288.5(a) against CG, a child under the age of 14 between January 1, 2013 and December 31, 2014.
• Count 2: Continue Sexual Abuse in violation of Penal Code § 288.5(a) against RC, a child under the age of 14 between January 1, 2013 and December 31, 2014.
• Count 3: Forcible Rape in violation of Penal Code § 1203.065(a) against LC between November 1, 2014 and November 27, 2014.
• Count 4: Forcible Rape of Unconscious Person in violation of Penal Code § 261(a)(a)  against LC between November 1, 2014 and November 27, 2014 (the same act as in count 3).

Factual Summary

[FACTUAL SUMMARY]

1. EVIDENCE TO BE EXCLUDED

[STATE SPECIFIC EVIDENCE TO BE EXCLUDED] PURPOSE OF MOTION IN LIMINE

The purpose of the motion is to avoid the obviously futile attempt to “unring the bell” in the event a motion to strike is granted in the proceedings before the jury.  Kelly v. New West Federal Savings (1996) 49 Cal. App. 4th 659, 669, 56 Cal. Rptr. 2d 803; Hyatt v. Sierra Boat Co. (1978) 79 Cal. App. 3d 325, 337, 145 Cal. Rptr. 47.  Trial courts have the inherent power to use motions in limine to control the litigation and to adopt any suitable method of practice, even if not specified by statute or court rules. Amtower v. Photon Dynamics, Inc. (2008) 158 Cal. App. 4th 1582, 1594–1595, 71 Cal. Rptr. 3d 361.  Further, “in limine motions” can help speed the trial and allow for a more considered decision on difficult evidentiary issues. Kelly, 49 Cal.App.4th at 669-70.

1. ONLY RELEVANT EVIDENCE IS ADMISSIBLE AT TRIAL.  

Evidence Code § 350.  “Relevant evidence” means testimony or physical objects, including evidence bearing on the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action.  Evidence Code § 210; People vs. Scheid (1997) 16 Cal.4th 1.  A court has no discretion to admit irrelevant evidence.  People vs. Crittenden (1994) 9 Cal.4th 83, 132.   Evidence which produces only speculative inferences is irrelevant evidence.  People vs. De La Plane (1979) 88 Cal.App.3d 223, 242.  Whether or not evidence is relevant is a decision within the trial court's discretion.  People vs. Von Villas (1992) 10 Cal.App.4th 201, 249.  The trial court abuses its discretion in admitting evidence when it can be shown under all the circumstances that it exceeded the bounds of reason.  (People vs. De Jesus (1995) 38 Cal.App.4th 1, 32.  

1. Court’s Discretion

“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence Code § 352.   “Prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “uniquely tends to evoke an emotional bias against defendant” without regard to its relevance on material issues). People v. Kipp (2001) 26 Cal. 4th 1100, 113 Cal. Rptr. 2d 27, 33 P.3d 450.  

The balancing process requires consideration of the relationship between evidence and relevant inferences to be drawn from it, whether evidence is relevant to main or only a collateral issue, and necessity of evidence to proponent’s case as well as reasons recited in statute for exclusion. Kessler v. Gray (1978) 77 Cal. App. 3d 284, 143 Cal. Rptr. 496.  Because evidence of other, uncharged offenses can be highly prejudicial, trial courts should use particular care in performing balancing analysis under Section 352. People v. Millwee (1998) 18 Cal. 4th 96, 74 Cal. Rptr. 2d 418, 954 P.2d 990, cert. denied. 

For example, the trial court committed reversible error in rape and kidnapping trial by admitting uncharged act evidence that defendant put his finger in the mouth of previous attempted kidnapping victim; the jury could infer a sexual connotation to the prior offense, and the prejudicial effect of the evidence exceeded its comparatively low probative value.  People v. Jandres (2014) 226 Cal. App. 4th 340, 171 Cal. Rptr. 3d 849.  Similarly, in a prosecution for committing a forcible lewd act upon a child, where the key issue was whether the defendant had the intent to commit the act when he entered the victim’s house, the trial court erred in permitting the court-appointed interpreter to testify that she had seen defendant moving his hands near his groin during victim’s testimony; such testimony could confuse and inflame the jury.  People v. Leon (2001) 91 Cal. App. 4th 812, 110 Cal. Rptr. 2d 776.

By enacting §352, the legislature gave courts the means to facilitate judicial economy.  DePalma v. Westland Software House (1990) 225 Cal. App. 3d 1534, 276 Cal. Rptr. 214. The issue of judicial economy is served by the exclusion of the long known by the DA, but just disclosed evidence to the Defense of the allegations against the Defendant by MG because it would require Defendant to call rebuttal witnesses on collateral issues of scant relevance and possible enormous prejudice.  See People v. Morrison (2011) 199 Cal. App. 4th 158, 131 Cal. Rptr. 3d 26 (Contrary to the common law rule and popular belief, a trial court has substantial discretion to allow rebuttal witness to contradict testimony on direct examination, even though the rebuttal is impeachment on a collateral fact).

II

EVIDENCE CODE 1108 DOES NOT MAKE THE EVIDENCE OF MG’S ALLEGATIONS ADMISSIBLE

Evidence Code § 1108 provides for the admission of prior convictions for specified sex offenses for use as propensity evidence so long as such evidence is not subject to exclusion pursuant to §352.  The incorporation of §352 into section §1108 provides “a safeguard against the use of uncharged sex offenses in cases where the admission of such evidence could result in a fundamentally unfair trial.”  People v. Falsetta (1998) 21 Ca1.4th 908 at pp. 917-918.

The reviewing court in People v. Harris (1998) 60 Cal.App.4th 727 set forth the manner in which the balancing test of §352 should be applied to other sex crimes evidence sought to be admitted under §1108.  In recognition that all cases discussing the application of §352 to other crimes evidence predated §1108, the Harris court emphasized that §352 “preserves the accused’s right to be tried for the current offense,” i.e. for what he did, not who he is. (Id., at p. 737.)  The court determined: “The factors we consider are derived from the text of section 352 and the cases which have arisen in the context of the use of prior conduct admitted under section 1101.  We recognize that different considerations may apply in the context of section 1108.  However, section 1108 functions as another albeit much broader exception to the general rule of exclusion of other crimes evidence.” (ld., at p. 737.) (Also see People vs. Soto (1998) 64 CalApp4th 966, 75 Cal.Rptr.2d605,617.)

The Harris Court then considered essentially the same §352 balancing factors that the California Supreme Court enumerated in People v. Ewoldt (1994) 7 Cal.4th 380.  These factors, as described in Harris include:

1. The inflammatory nature of the evidence;
2. The probability of confusion if the defendant's prior sex offense did not result in a criminal conviction;
3. The remoteness in time of the uncharged act from the charged offenses;
4. The consumption of time of evidence pertaining to the uncharged offense;
5. The probative value of the evidence which can include “consideration [of] the degree of similarity of the prior and current offenses, as similarity would tend to bolster the probative force of the evidence.”

Harris, supra, 60 Cal.AppAth at p. 740; Ewoldt, supra, 7 Ca1.4th at pp. 404-405; Falsetta, supra, 21 Cal4th at p.917.

First, any evidence of abuse against MG would be particularly “inflammatory,” given their very nature fact.  As noted in People v. Karis (1988) 46 Ca1.3d 612, 638, the “prejudice” referred to in Evidence Code §352 “applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues,” as is the case here.

Second, these events were committed when Defendant was between six and eight and never resulted in an conviction, juvenile or otherwise and, as the report stipulates, were never before reported.  As explained in People v. Branch (2001) 91 CaLApp.4th 274, at p. 284: “In Ewoldt, the Supreme Court discussed confusion of the issues in terms of whether or not a defendant has been convicted of the uncharged prior offense. (Ewoldt, supra, 7 Cal.4th at p. 405, 27 Cal.Rpt.2d 646, 867 P.2d 757.)  If the prior offense did not result in a conviction, that fact increases the likelihood of confusing the issues ‘because the jury [has] to determine whether the uncharged offenses [in fact] occurred.’ (Ibid).”  Here, it is unclear if there is any evidence at all of any crime committed by Defendant against his deceased daughter, let alone a sex crime.

Third, the alleged acts are very remote, over 40 years ago subject to fading memory and unavailability of witnesses to either rebut or corroborate. 

Fourth, if MG’s allegations are admitted, Defendant would then be compelled to rebut it with testimony from witnesses who were in a position to know the facts of what actually took place at that time. This would essentially require a trial within a trial almost certainly resulting in an “undue consumption of time.”  Moreover, the likelihood of unavailability of such witnesses after the passage of 40 years, would also likely result in exactly the kind of prejudice §352 is intended to prevent.  

  Fifth, the report provides minimal information regarding MG’s actual allegations.  Whatever they may be though, they were between two very young juveniles whereas the current acts allege above the clothes touching of an adult male and two juveniles.  Thus, the probative value, if any, would be slight.  

1. CONCLUSION

[INSERT CONCLUSION]              

Respectfully submit

___________________________

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

TO THE DISTRICT ATTORNEY OF [COUNTY] AND/OR [HIS/ HER] REPRESENTATIVE:

PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move for an order suppressing all evidence of the defendant’s statement [insert statements].

The motion will be made on the grounds that the introduction of such evidence before the trier of fact would violate the defendant’s right against compulsory self-incrimination, and his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. This motion is also based on the grounds that the evidence was obtained in violation of the Sixth Amendment to the United States Constitution. 

The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as hereafter may be filed with the court, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.

Dated:

__________________________

[NAME OF ATTORNEY]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

I.

STATEMENT OF THE CASE

[Add case information]

II.

SUMMARY OF THE FACTS

[add case facts …]

MEMORANDUM OF POINTS AND AUTHORITIES

III.

THE USE OF STATEMENTS STEMMING FROM A CUSTODIAL INTERROGATION OF THE DEFENDANT VIOLATES THE PRIVILEGE AGAINST SELF-INCRIMINATION UNLESS THE PROSECUTION CAN DEMONSTRATE THAT THE PROCEDURAL SAFEGUARDS OF MIRANDA WERE HONORED

In Miranda v. Arizona (1966) 384 U.S. 436, 444 the Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”

The Supreme Court cautioned that custodial interrogations must be strictly controlled in order to ensure the elimination of coercive methods, both psychological as well as physical. Precautions must be observed to eliminate the “gap in our knowledge as to what in fact goes on in the interrogation rooms,” and to prevent the interrogation environment from being used to “subject the individual to the will of his examiner” (Miranda, supra, 384 U.S. 436, 449). Therefore, to ensure the statements offered against the defendant at trial are the product of the voluntary choice of the defendant, the court devised a set of procedures to mitigate the inherent coerciveness that pervades custodial interrogations.

The Miranda safeguards require that a suspect be advised prior to any questioning: (1) the suspect has the right to remain silent, and anything he or she says can be used against him or her in a court of law; (2) the suspect has the right to an attorney prior to questioning; and (3) if the suspect cannot afford an attorney, one will be provided him or her prior to any questioning.

In Dickerson v. U.S. (2000) 530 U.S. 428, the Supreme Court made clear that the Miranda warnings are constitutionally based on the Fifth Amendment right against self-incrimination.

IV.

IN RE ELIAS V. (2015) 237 CAL.APP.4^TH 568 FINDS THE REID METHOD OF INTERROGATION COERCIVE WHEN APPLIED TO AN IMMATURE INDIVIDUAL.

In Elias V. the First District Court of Appeal address the claim of a minor that his confession was involuntary under the due process clause of the Fourteenth Amendment as it was the product of the type of coercive interrogation techniques condemned in Miranda v. Arizona (1966) 384 U.S. 436.   The court agreed and reversed.

The court reasoned: 

The admissibility of a confession depends upon the totality of the circumstances existing at the time the confession was obtained. (People v. Robertson (1982) 33 Cal.3d 21, 39–40 [188 Cal. Rptr. 77, 655 P.2d 279]; People v. Sanchez (1969) 70 Cal.2d 562, 572 [75 Cal. Rptr. 642, 451 P.2d 74], cert. dism., Sanchez v. California (1969) 394 U.S. 1025 [23 L. Ed. 2d 743, 89 S. Ct. 1646].) A minor can effectively waive his constitutional rights (People v. Lara (1967) 67 Cal.2d 365, 390–391 [62 Cal. Rptr. 586, 432 P.2d 202], cert. den. Lara v. California (1968) 392 U.S. 945 [20 L. Ed. 2d 1407, 88 S. Ct. 2303] … [fn. omitted] but age, intelligence, education and ability to comprehend the meaning and effect of his confession are factors in that totality of circumstances to be weighed along with other circumstances in determining whether the confession was a product of free will and an intelligent waiver of the minor's Fifth Amendment rights ([Lara], at pp. 385–387).” (People v. Maestas (1987) 194 Cal.App.3d 1499, 1508 [240 Cal. Rptr. 360].)  (Id. at p. 576.)

The prosecution is required to show voluntariness of a confession by a preponderance of the evidence. (Lego v. Twomey (1972) 404 U.S. 477, 489.)  The determination depends on all of the surrounding circumstances, both the characteristics of the accused and the details of the interrogation. (Schneckloth v. Bustamante (1973) 412 U.S. 218, 226.)  The trustworthiness of the confession is not a consideration. (Rogers v. Richmond (1961) 365 U.S. 534, 543-544.)   A finding of coercive police conduct is necessary, but the exertion of any improper influence is sufficient. (Colorado v. Connelly (1986) 479 U.S. 157; Hutto v. Ross (1976) 429 U.S. 28, 30.)

The techniques employed in In re Elias V., and in the instant case, were condemned by the Supreme Court in Miranda.  

The foundational theses of Miranda are that “the modern practice of in-custody

Interrogation is psychologically rather than physically oriented” (Miranda, supra, 384 U.S. at p. 448), and the psychological techniques now employed by interrogators “trade[] on the weakness of individuals,” and “may even give rise to a false confession.” (Id. at p. 455 & fn. 24, citing Borchard, Convicting the Innocent (1932).)

The danger of false confessions is real. Studies conducted after Miranda was decided estimate that between 42 and 55 percent of suspects confess in [*578]

response to a custodial interrogation. (Kassin & Gudjonsson, The Psychology of

Confessions: A Review of the Literature and Issues (Nov. 2004) 5 Psychol. Sci. Pub. Int. 33, 44.)  Estimates of false confessions as the leading cause of error in wrongful convictions range from 14 to 25 percent, and as will be discussed (see post, at pp. 588–591), a disproportionate number of false confession cases involve juveniles. Recent research has shown that more than one-third (35 percent) of proven false confessions were obtained from suspects under the age of 18. (Drizin & Leo, The Problem of False Confessions in the Post-DNA World (2004) 82 N.C. L.Rev. 891, 902, 944–945, fn. 5 (False Confessions).) (Id. at pp. 577-578.)

Both Elias V. and Miranda cite John E. Reid and Associates, and their basic course on “The Reid Technique”.  Scientists who study interrogation techniques and their effects describe the Reid Technique as follows:

“First, investigators are advised to isolate the suspect in a small private room, which increases his or her anxiety and incentive to escape. A nine-step process then ensues in which an interrogator employs both negative and positive incentives.  On one hand, the interrogator confronts the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or manufactured, and refuses to accept alibis and denials. On the other hand, the interrogator offers sympathy and moral justification, introducing ‘themes’ that minimize the crime and lead suspects to see confession as an expedient means of escape.” (Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations (2010) 34 Law & Hum. Behav. 3, 7 (Police-Induced Confessions).  According to these authors, the purpose of interrogation is “not to discern the truth, determine if the suspect committed the crime, or evaluate his or her denials. Rather, police are trained to interrogate only those suspects whose culpability they ‘establish’ on the basis of their initial investigation … .” (Police-Induced Confessions, at p. 6.)  (Id. at pp. 579-580.)

Investigators are taught to conduct the interrogation in privacy, and not at home or where the suspect would have support.  They are to express confidence in guilty, and to minimize the moral seriousness of the offense.   They seek to create in the suspect a psychological state where the defendant’s story is nothing more than an elaboration of which the police already know, guilt.  Patience, perseverance, kindness and stratagems are employed.  The interrogation is steady and without relent.  The officer dominates, and insinuates guilt with his questions.  He is aggressive and persistent. 

Maximization/minimization is employed.  The officer is rock solid in his belief in guilt, and provides moral justification and face saving excuse for the conduct.  This is an offer of leniency by implication.   False evidence may be cited.  The lie detector ploy may be employed. Questions may take the form of a false choice, encouraging the suspect to select one of two options.  (See Elias V., supra, at pp. 581-588.)

In recent years both the courts (See Roper v. Simmons, supra, 543 U.S. at 569-570) and the Reid Institute have found that the differences between adults and the immature must be recognized.

Thus, for example, the most recent edition of the Reid manual on interrogations notes that although the use of deception, including the use of “fictitious evidence which implicates the subject” (Inbau et al., Criminal Interrogation, supra, at p. 255), has been upheld by the courts (see, e.g., Frazier v. Cupp, supra, 394 U.S. at p. 739; People v. Smith, supra, 40 Cal.4th at p. 505), “this technique should be avoided when interrogating a youthful suspect with low social maturity …” because such suspects “may not have the fortitude or confidence to challenge such evidence and depending on the nature of the crime, may become confused as to their own possible involvement if the police tell them evidence clearly indicates they committed the crime.  Factors such as the adolescent's level of social responsibility and general maturity should be considered before fictitious evidence is introduced.” (Inbau et al., Criminal Interrogation, supra, at p. 255.)  (In re Elias V., supra, at p. 588.)

V.

THERE WAS AN INVOCATION UNDER MIRANDA THEREFORE ANY SUBSEQUENT STATEMENT IS INADMISSIBLE

When an individual “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise” (Miranda, supra, 384 U.S. 436, 473–474). 

Invocation of the Miranda right to counsel “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.” (McNeil v. Wisconsin (1991) 501 U.S. 171, 178). However, if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, officers are not automatically required to stop the questioning (Ibid). Therefore, an essential inquiry is whether the defendant made an unequivocal invocation.

1. THE INVOCATION WAS UNEQUICOVAL

If the individual indicates at any time prior to questioning, that he or she wishes to remain silent or have the presence of an attorney, the interrogation may not proceed. Faced with a clear invocation, law enforcement officers may not seek clarification and keep talking to the defendant. The assertion does not need to be “invoked with unmistakable clarity” (People v. Randall (1970) 1 Cal. 3d 948, 955 (overruled on other grounds by, People v. Cahill (1993) 5 Cal. 4th 478)). 

A suspect’s request for an attorney constitutes an invocation. For example, in U.S. v. de la Jara (1992) 973 F.2d 746, 751, the court held that absent compelling evidence to the contrary, a phone call to an attorney must be construed as an invocation (U.S. v. de la Jara (1992) 973 F.2d 746, 751). In Mays v. Clark (2015) 807 F.3d 968, 978, the Ninth Circuit concluded a California court of appeal had erred in finding no invocation when a 17-year-old murder suspect, shortly after an implied Miranda waiver, asked that an attorney retained by a family member be summoned. 

[ADD IN CASE FACTS]

1. IF THE COURT FINDS THE INVOCATION WAS EQUICOVAL DETECTIVES EXCEEDED PERMISSIBLE CLARIFICATION QUESTIONING

When a suspect makes a statement which is ambiguous as to invoking Miranda rights, law enforcement officers may ask questions to clarify the defendant’s response (People v. Sauceda-Contreras (2012) 55 Cal. 4th 203, 218; U.S. v. Rodriguez (2008) 518 F.3d 1072, 1079). The questioning is allowed for the limited purpose of clarifying whether the suspect is waiving or invoking those rights, officers may not persist “in repeated efforts to wear down his resistance and make him change his mind,” or inquire the reasons why he is invoking (People 

1. Peracchi (2001) 86 Cal. App. 4th 353). In Peracchi, police gave Miranda advisements and asked defendant if, having those rights in mind, defendant wanted to talk (Ibid.) He said, “I don't think so. At this point, I don’t think I can talk.” The court found this was an unambiguous assertion of right to remain silent (Ibid.) Officer who asked why he didn’t want to talk was not seeking clarification whether he was asserting his right to silence (Ibid.)

In People v. Williams (2010) 49 Cal. 4th 405, 428, as modified, (Aug. 18, 2010), the court addressed the question whether law enforcement officers may seek clarification when a suspect makes an ambiguous or equivocal request for the assistance of counsel at the initial stage of an interrogation, prior to any waiver of Miranda rights. The Williams’ court held “the interrogators may clarify the suspect’s comprehension of, and desire to invoke or waive, the Miranda rights.” Whether the invocation of the right to counsel is ambiguous is judged objectively from “what a reasonable officer would have understood the nature of the suspect’s request to be under all the circumstances.” (See Connecticut v. Barrett (1987) 479 U.S. 523, 529 (analyzing a response to an initial admonition).)

[APPLY CASE FACTS]

THE INTERROGATION BY DETECTIVES VIOLATED THE SIXTH AMENDMENT

The interrogation by officers also violated the safeguards of the Sixth Amendment. The Sixth Amendment “guarantees the accused ... the right to rely on counsel as a ‘medium’ between him and the State.” (Maine v. Moulton (1985) 474 U.S. 159, 176). “The right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments is indispensable to the fair administration of our adversarial system of criminal justice.” (Id. at 168–69). “Once the right to counsel has attached and been asserted, the State must of course honor it.” (Id. at 170).

The Sixth Amendment right to counsel extends to all “critical stages” of the criminal proceedings, including the period prior to trial. (United States v. Wade (1967) 388 U.S. 218, 227–28). Once there has been an initiation of criminal charges, the right to counsel attaches. After an attorney represents a person on particular charges, the accused may not be questioned about the crimes charged in the absence of the attorney. 

[ADD CASE FACTS]

IV.

CONCLUSION

The interrogation violated both the Fifth and Sixth Amendments to the United States Constitution. [ADD BRIEF FACTS]

Respectfully submitted,

Dated:

__________________________

[NAME OF ATTORNEY]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

DEFENDANT MOVES TO EXCLUDE ALL TESTIMONY CONCERNING STATISTICS REGARDING FALSE ALLEGATIONS (SUCH AS PERCENTAGES) AND TO DIRECTLY INSTRUCT PROSECUTION EXPERTS TO MAKE ANY MENTION THEREOF

1. Testimony on the statistical likelihood of false allegations is irrelevant and invades the province of the jury to determine the credibility of witnesses. 

In People v. Wilson (2019) 33 Cal.App.5th 559, the prosecution called Dr. Anthony Urquiza to offer evidence about CSAAS and false allegations of child sexual abuse.  Urquiza testified that research on the topic of false allegations of child sexual abuse shows that false allegations happen “very infrequently or rarely.”  He referred to a Canadian study that found a false allegation rate of “about 4% of cases,” and that in those cases where a false allegation occurred it was not the child who made the false allegation.  Dr. Urquiza testified that there were 12 to 15 other studies on the subject which found the false allegation rate to be between one and six percent of cases.  (Id. at p. 568.)  On appeal, defendant contended that the numerical evidence improperly amounted to testimony that 96% (or between 94 and 99%) of children accusing a person of child sexual abuse are telling the truth.  (Ibid.) 

The Wilson Court agreed with the “clear weight of authority in our sister states, the federal courts, and the military courts” that evidence of the rate of false allegations of child sexual assault is inadmissible.  (Id. at p. 570.)  The use of such statistical evidence bolsters the credibility of the complainant thereby depriving the defendant of his constitutional right to have the jury make credibility determinations.  (Id. at p. 570.)  Even more fundamentally, Wilson determined that statistical evidence regarding false allegations is irrelevant “because it tells the jury nothing about whether this particular allegation is false.”  (Id. at p. 571.)  As such, testimony regarding statistical evidence of false allegations is more prejudicial than probative because it confuses the issues and distracts the jury from its function of determining credibility.  (Ibid.)

In People v. Julian (2019) 34 Cal.App.5th 878, the prosecution once again called upon Dr. Anthony Urquiza to testify about the CSAAS theory and the statistical percentage of false allegation by child sexual abuse victims.  Dr. Urquiza testified that the “range of false allegations that are known to law enforcement of [Child Protective Services] . . . is about as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases that appear to be false allegations.”  (Id. at p. 883.)  He added that the research bears out that false allegations are “very infrequent, or rare.”  (Ibid.)  Defense counsel did not object to Dr. Urquiza’s testimony.  On cross-examination, defense counsel questioned Dr. Urquiza about the studies that were the foundation of his testimony.  However, Dr. Urquiza simply “used the opportunity to repeatedly reassert his claim that statistics show children do not lie about being sexually abused.”  (Id. at pp. 888-889.)

The Julian Court agreed with the defendant that his trial attorney was ineffective in failing to object to Dr. Urquiza’s statistical evidence on false allegations and that counsel’s omission deprived him of a fair trial.  Julian noted that the fact that such evidence is inadmissible is dictated by existing authority that precludes an expert from using syndrome evidence, such as CSAAS or rape trauma syndrome, to make “predictive conclusions” about whether a particular child or child abuse victims in general “should be believed” or that “abused children give inconsistent accounts and are credible nonetheless.”  (Id. at p. 886, citing People v. Collins (1968) 68 Cal.2d 319, 327; People v. Bowker (1988) 203 Cal.App.3d 385, 393.) 

Wilson and Julian require the exclusion of statistical evidence on false allegations.  These cases also preclude any expert from making “predicative conclusions” regarding the verity of a child’s account of abuse.  Thus, Dr. Urquiza should be admonished to refrain from discussing research on the statistical probability of false allegations and to avoid making predictive conclusions about the credibility of child abuse victims based upon CSAAS theory (e.g., “children who make inconsistent statements about child abuse should be believed anyway,” or “children sexually abused by a family member normally delay disclosure.”)  

1. Admission of testimony about the rate of false allegations violates the defendant’s federal and state constitutional rights.

In Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, the court reversed an order denying a habeas corpus petition because, it held, defendant’s due process rights were violated by expert testimony that 99.5% of children tell the truth about sexual abuse, and that the expert had not personally encountered any instances where a child had invented a lie about sexual abuse. (Id. at pp. 737-739.)  

Julian, supra, agrees with Snowden that the admission of prejudicial statistical data deprives the defendant of his due process right to a fair trial.  (People v. Julian, supra, 34 Cal.App.5th at p. 887.)  While such evidence “may not be prejudicial where it occurs in a slight passing reference by the expert,” it cannot be deemed harmless when the expert is called upon to pontificate on the issue of the rate of false allegations and recites empirical studies in support of his opinion.  In such circumstances, the error is “prejudicial by any standard.”  (Id. at p. 890, citing Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824; People v. Watson (1956) 46 Cal.2d 818; see also People v. Partida (2005) 37 Cal.4th 428, 435-439 [defendant may argue that the admission of unobjected to gang evidence violates federal due process if it deprives the defendant of a fair trial]; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15 & 16.)

A criminal defendant is entitled to be tried on the relevant evidence against him, not on statistics and probabilities that bear no relation to the particular acts he is accused of. (U.S. Const., 14th Amend.; Collins, supra, 68 Cal.2d at p. 320 [statistical testimony “distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules”]; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; Snowden, supra, 135 F.3d at pp. 737-739; Lisenba v. People of the State of California (1941) 314 U.S. 219, 235-237 [62 S.Ct. 280].)  Given that the prosecution of a child sexual abuse case normally turns on the respective credibility of the complainant and the defendant, the admission of expert opinion that improperly bolsters the credibility of the victim deprives the defendant of due process of law.  (Snowden, supra, 135 F.3d at p. 737.)

Dr. Urquiza’s opinion regarding the low incidence of false allegations usurps the jury function and substitutes his own biased opinion for a jury determination of guilt beyond a reasonable doubt.  (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Dillon v. United States (2010) 560 U.S. 817, 828 [referring to the “Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt”]; Snowden, supra, 135 F.3d at pp. 737-739; United States v. Brooks (C.A.A.F. 2007) 64 M.J. 325, 330 [defendant had substantial right to have fact finder decide ultimate issue without viewing alleged victim’s credibility through the filter of expert testimony]; Powell v. State (Del. 1987)  527 A.2d 276, 279-280 [expert’s percentage testimony deprived defendant of his right to have jury make credibility determinations]; see United States ex rel. Toth v. Quarles (1955) 350 U.S. 11, 16-18; U.S. v. Scheffer (1998) 523 U.S. 303, 313 [118 S.Ct. 1261].)

Such testimony would also violate Petitioner’s right to present a defense.  (U.S. Const., 6th & 14th Amends.; see Collins, supra, 68 Cal.2d at pp. 327, 331 [statistical testimony “foreclosed the possibility of an effective defense by an attorney apparently unschooled in mathematical refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory”]; Cal. Const., art. I, §§ 15 & 16.)

Last, but far from least, such testimony would also undermine defendant’s right to the presumption of innocence and reduce the prosecution’s burden of proof beyond a reasonable doubt.  Dr. Urquiza’s statistics inform jurors that, even before any evidence relevant to this particular case is considered, that there is a well above a 90% chance the defendant is guilty. (See Taylor v. Kentucky (1978) 436 U.S. 478, 487-488, 490 [jury was improperly invited to consider petitioner’s status as a defendant and permitted to draw inferences of guilt from fact of arrest and indictment]; In re Winship (1970) 397 U.S. 358, 363; Estelle v. Williams (1976) 425 U.S.501, 503; U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.)  In effect, such statistics convert the fact that an accusation had been made to a probability of guilt; from such testimony, jurors could conclude, without considering any evidence specific to this case, that there is a 92 to 99 percent chance that the defendant was guilty. (See generally Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1360-1361, 1368-1372 (1971) [statistical evidence undermines the presumption of innocence].)

For the above reasons the defense requests the court to order the prosecution, and Dr. Urquiza not to present or discuss the studies and their percentages of false allegations before the jury or make predictive conclusions about the credibility of child abuse victims in general based upon research studies or his own observations of the characteristics of child abuse victims.   

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

TO THE DISTRICT ATTORNEY OF [COUNTY] AND/OR [HIS/ HER] REPRESENTATIVE:

PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move for an order to exclude any opinion evidence that the complaining witness has been the victim of a sexual offense.

The motion will be made on the grounds that the introduction of such evidence before the trier of fact would violate the defendant’s right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. This motion is also based on the grounds that the evidence was obtained in violation of the Sixth Amendment to the United States Constitution. 

The motion will be based on this notice of motion, on the memorandum of points and authorities served and filed herewith, on such supplemental memoranda of points and authorities as hereafter may be filed with the court, on all the papers and records on file in this action, and on such oral and documentary evidence as may be presented at the hearing of the motion.

Dated:

__________________________

[NAME OF ATTORNEY]

Attorney for Defendant

MEMORANDUM OF POINTS & AUTHORITIES

I.

STATEMENT OF THE CASE

[Add case information]

II.

SUMMARY OF THE FACTS

[add case facts …]

The defense moves for a protective order that: 

1. The prosecution not be allowed to introduce expert testimony that the complaining witness is a victim of sexual offense based on “predictors.”
2. The prosecution be required to specifically identify any alleged “myths” it intends to dispel by introducing expert testimony.
3. The prosecution be limited to introducing evidence of victims as a class to dispel myths.

I.

SYNDROME AND OTHER PSYCHOLOGICAL THEORIES OR MODELS DESIGNED FOR THE TREATMENT OF CHILD MOLEST VICTIMS ARE NOT ADMISSIBLE AS PREDICTORS, SINCE THEY PRESUME THE EXISTENCE OF WHAT THEY CLAIM TO HAVE DISCOVERED

1. RAPE TRAUMA SYNDROME

In People vs. Bledsoe (1984) 36 Cal.3d 236, the California Supreme Court held that evidence that a victim was suffering from Rape Crisis Trauma Syndrome was not admissible for the purpose of proving that a rape had occurred.  The prosecution called a rape counselor who had treated the victim after the incident and who the prosecution indicated would testify that the victim was suffering from "rape trauma syndrome".  The trial court found the evidence relevant on the issue of whether a rape occurred and determined that a showing of the victim's continuing condition and strife was further evidence of the fact that a rape occurred as opposed to evidence that a rape did not occur.  (Id., 36 Cal.3d 241.)  The counselor testified at length that 99.9% of the rape victims fall into the "rape trauma syndrome", and to its various aspects.  Ultimately she expressed an opinion based on her experience and past training in interviews and her contact with the victim, that the victim was suffering from rape trauma syndrome.  (Id., 36 Cal.3d 243-244.)

The Supreme Court stated:

"...rape trauma syndrome was not devised to determine the truth or accuracy of a particular past event--that is, whether in fact, a rape in the legal sense occurred-but rather was developed by professional rape counselors as a therapeutic tool to help identify, predict and treat emotional problems experienced by the counselors clients."  (Id., 36 Cal.3d 248 to 250, emphasis added.)

The court went on to note that rape trauma counselors, by their training, are particularly required not to judge the credibility of their clients and not to pass judgment.  Thus, "as a rule, rape counselors do not probe inconsistencies in their client's descriptions of the facts of the incident, nor do they conduct independent investigations to determine whether other evidence corroborates or contradicts their client’s renditions."  (Id., 36 Cal.3d 250.)

The court squarely held that expert testimony that a complaining witness suffers from rape trauma syndrome is not admissible to prove the witness was raped "[b]ecause the literature does not even purport to claim that the syndrome is a scientifically reliable means of proving that a rape occurred."  (Id., 36 Cal.3d 251.)

II

CHILD MOLEST SYNDROME

In In re Sara M. (1987) 194 Cal.App.3d 585, the Court of Appeal held that evidence that a victim was suffering from Child Molest Syndrome was not admissible for the purpose of proving that a child molest had occurred.

The trial court allowed two expert witnesses to testify to the "Child Molest Syndrome" but did not allow the experts to testify to his opinion that a molestation had in fact occurred.

According to one psychologist who had treated Sara M., the common characteristics of child molest victims included:

1. Consistency in recounting the molestation to different people;
2. Denial the molestation occurred;
3. Sexual knowledge beyond that usually associated with the victim's age;
4. The ability to recall the molestation over an extended period of time;
5. A feeling of loss of control over their life.  (Id., at p. 589.)  Another psychologist who treated Sara elaborated on the symptoms of child molest syndrome:
6. They often are angry or depressed;
7. They often exhibit a variety of behavioral problems;
8. They suffer from sleep disturbances or eating disorders;
9. They show a false sense of maturity;
10. They may trust too much or too little;
11. They are fearful of the purported molester;
12. They consistently name one person as the molester, and;
13. Details of the incident may be revealed only over time.  (Id., at p. 589.)

In In re Sara M., supra, the court held that the Child Molest Syndrome's primary purpose at trial in that case was as evidence that the molestation did in fact take place and its admission was therefore reversible error.  (Id., at p. 592, 595.)

Similarly, in People vs. Bowker (1988) 203 Cal.App.3d 385, the court determined that general testimony regarding Child Sexual Abuse Accommodation Syndrome (“CSAAS”) was not permitted to be used “in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.”  (Id., at p. 393.)  Leaving such an application to the jurors was dangerous because of their lack of training in the perils of drawing “predictive conclusions.”  (Id., at p. 393.)  Thus, general, educational testimony on CSAAS is inadmissible even if there is no reference to the victim because it “has the potential of being used by an untrained jury as a construct within which to pigeon-hole the facts of the case and draw the conclusion that the child must have been molested.”  (People vs. Bothuel (1988) 205 Cal.App.3d 581, 587.)

III

WHY SYNDROMES AND PREDICTORS ARE INADMISSIBLE

The fatal defect in the Child Molest Syndrome was the same defect in the Rape Trauma Syndrome:  child molestation was presumed!

"Psychologists testified the syndrome is neither included in the DSM nor recognized by the American Psychological Association or any other professional organization.  They described the syndrome as being in the beginning stages of development and acceptance.  No treatises on the syndrome were introduced into evidence.  The psychologists further testified they did not know how the symptoms of the syndrome were developed; they knew of no studies comparing the reactions of children known to be molested with those who claimed to be molested or with those who were not molested.  A basic defect of the syndrome is thus apparent: the syndrome was developed on the assumption the children studied were in fact molested.  Moreover, while no one at the hearing testified directly concerning the reason for the syndrome's development, it appears to be a tool for therapy and treatment, much like the rape trauma syndrome.  Consequently, the same problem discussed in Bledsoe may be present in the case of the child molest syndrome: if it was not developed as a truth-seeking procedure but rather as a therapeutic aid, it cannot be used for a different purpose, i.e., to prove a molestation occurred." In re Sara M. (1987) 194 Cal.App.3d 585, 594, 239 Cal. Rptr. 605-611.

IV

AN EXPERT WITNESS MAY DISPEL MYTHS AS TO MOLEST VICTIMS

AS A CLASS, BUT MAY NOT RENDER A PERSONAL OPINION ON

A SPECIFIC COMPLAINING WITNESS OR DEFENDANT

In People vs. Roscoe (1985) 168 Cal.App.3d 1093, 215 Cal. Rptr. 45, the court established the rule on the use of experts to rehabilitate alleged victims.  The court stated:

"The Bledsoe court would permit the expert to tell the jury about `recent findings of professional research on the subject of a victim's reaction to sexual assault' to rehabilitate the complaining witness.  (People vs. Bledsoe, supra, 36 Cal.3d at p. 247, 203 Cal. Rptr. 450, 681 P.2d 291.)  The language suggests-although it does not explicitly require-that the opinion testimony must be based upon the literature in the field and the general professional experience of the witness rather than upon an analysis and diagnosis based upon a review and evaluation of the facts in the case at hand.  Thus, for example, a victim whose credibility is attacked for initially denying that he had been molested could be rehabilitated by expert testimony that such denials are more likely than not in molestation cases.  The testimony would not be that this particular child was a victim of molestation, causing him to react in a certain way, but rather that as a class victims of molestation typically make poor witnesses, and are reluctant to disclose or discuss the sordid episodes.

Since the language used by the court does not clearly proscribe testimony in support of credibility based upon a diagnosis of the victim, we must consider Bledsoe further.

Credibility questions arise whenever the defendant denies the victim's story, explicitly or implicitly suggesting mis-recollection or fabrication.  If, in every such case, the jury could be informed that a doctor had diagnosed the complainant, based upon the specific facts in the case, as a child molest victim (or rape victim, or whatever), then the protection against misuse of psychologists' testimony erected by Bledsoe would be largely dismantled.

Where the expert refers to specific events, people and personalities and bases his opinion as to credibility on his diagnosis of this witness, then the conclusion that the witness is credible rests upon the premise that the diagnosis is accurate, and that in fact molestation had occurred.  The jury in effect is being asked to believe the diagnosis, to agree that the doctor's analysis is correct and that the defendant is guilty.  Such a result would subvert the sound rule adopted by a unanimous Supreme Court in Bledsoe, supra.  It follows, therefore, that the expert testimony authorized by Bledsoe to permit rehabilitation of a complainant's credibility is limited to discussion of victims as a class, supported by references to literature and experience (such as an expert normally relies upon) and does not extend to discussion and diagnosis of the witness in the case at hand."  (Id., at pp. 1099-1100, 215.) 

The court also held that the doctor/expert should not be allowed to discuss the facts of this particular case under Evidence Code Section 352.

"While we believe that this reading of Bledsoe is proper, we find as an independent ground of decision that all of the above considerations required the trial court to exclude this testimony under Evidence Code Section 352, even though this was not specifically urged in support of defendant's various objections.  It would be possible for an expert witness to tell the jury about various studies showing typical responses of victims in molest situations without relying on a detailed analysis of the facts in the case at hand.  All of the `probative value' that the prosecution was entitled to could have been preserved by so limiting the doctor's testimony, without creating any `substantial danger of undue prejudice'.  (EvCode Section 352).   The doctor's discussions of specific facts of this case in support of his conclusion that the complainant was indeed a victim of molestation by the defendant had all the force of a district attorney's closing argument, and even greater impact since it was delivered in clinical terms by a `doctor' purporting to make an objective scientific analysis."  (Id., at p. 1100.)

Also see People vs. Bowker, supra, at pp. 393-394; People vs. Bothuel, supra, at pp. 587-588; People vs. Bergschneider (1989) 211 Cal.App.3d 144, 158-159; People vs. Gilbert (1992) 5 Cal.App.4th 1372, 1384; People vs. Humphrey (1996) 13 Cal.4th 1095-1096.) 

V

THE CORRECT PROCEDURE FOR DISPELLING MYTHS:

In People vs. Gray (1986) 187 Cal.App.3d 213, 213, the court allowed an expert witness to testify regarding the child abuse accommodation syndrome.  It was made clear to the jury that this was not a diagnosis or a test for child abuse.  The expert did not form any opinions that the child had been molested.  The expert confined his remarks to behavioral traits of child abuse victims as a class nor did he rely on a detailed analysis of the facts in the case at hand.  The expert's testimony was allowed to explain that late reporting is not unusual and disclosure of details over time is not unusual.

This view was reiterated in People vs. Harlan (1990) 222 Cal.App.3d 439 wherein the court held that it was permissible to use expert testimony to dispel myths about victims as a class.  The myth must be identified, the testimony must be limited to dispel this myth, and the jury must be admonished that the expert testimony is not intended and should not be used to determine whether the victim's molestation claim is true.  (See also People vs. Stark (1989) 213 Cal.App.3d 107, 116-117, People vs. Bowker, supra, at pp. 393-394.)

VI

PROFILE EVIDENCE IS INADMISSIBLE IF THE DEFENDANT

DOES NOT PUT HIS OR THE VICTIM'S CHARACTER IN ISSUE.

Evidence of the characteristics and typical behavior of one who commits a certain type of crime coupled with the expert opinion that the defendant’s behavior, as put before the expert in the form of hypothetical questions, is consistent with those characteristics is inadmissible profile evidence.  For example, in People v. Robbie (2001) 92 Cal.App.4th 1075, the defendant’s conviction for kidnapping and sexual assault was reversed where an expert was improperly allowed to testify that the defendant’s conduct was consistent with the typical rapist.  The expert was never asked directly to opine that this was so, but rather responded to hypothetical questions posed by the prosecutor which incorporated the victim’s description of the defendant’s conduct.  (Id., at 1084.)  The Robbie court noted that the improper profile evidence could be “unfairly relied upon to affirmatively prove a defendant’s guilt based on his match with the profile.”  (Id., at 1084.)  The court further stated that such evidence is inadmissible because the jury “is improperly invited to conclude that, because the defendant manifested some characteristics, he committed a crime.”  (Id., at 1086-1087.)  Other jurisdictions preclude the use of sex offender profile evidence to conclude that a defendant committed the charged crime.  (See Hall v. State (1985 Ark.) 692 So.w2d 769, 770-771 [expert testimony regarding the psychological profile of a child molester including that in a high percentage of cases the offender is known to the victim reversible error; State v. Petrich (1984 Wa.) 683 P.2d 173, 180 [same]; State v. Clements (1989 Kan.) 770 P.2d 447, 453-454 [evidence that defendant fit the profile of typical child sexual offender reversible error]; ) Other California decisions finding profile evidence inadmissible include People v. Castenada (1997) 55 Cal.App.4th 1057, 1072 (drug dealer profile); People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 (truck thief profile).

The admissibility of "profile" evidence was considered in People vs. Stoll, supra:

"The Attorney General argues that, under Bledsoe, supra, 36 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291, use of `syndrome' or `profile' terminology by a mental health professional makes the diagnosis seem `scientific' to a jury, and thus invokes Kelly/Frye.  We adopted no such per se rule in Bledsoe, despite its reference to concerns raised in out-of-state cases.  We are not persuaded that juries are incapable of evaluating properly presented references to psychological `profiles' and `syndromes'."  (Id., at p. 1161, fn. 22.)

People vs. Harlan (1990) 222 Cal.App.3d 439, 448-449 quotes Stoll with approval on the subject of allowing profiles although that case did not contain a profile issue.  In People vs. Ruiz (1990) 222 Cal.App.3d 1241, the court found based upon Stoll, that profile evidence of a pedophile may be admissible but found the particular profile evidence proffered in that case to be inadmissible because of the defendant's failure to demonstrate the reliability of the material on which his expert based his opinion.  (Id., at pp. 1245-1246.)

However, as stated above, People vs. Stoll, supra, 49 Cal.3d at p. 1159, held that the psychological evaluations or personality evaluations was CHARACTER EVIDENCE!  Also see People vs. Ruiz, supra, wherein the court held that these opinions were character evidence:

"It is now settled that psychological opinions based upon personal examination and analysis of accepted psychological tests, such as the MMPI and MCMI, may be admitted as character evidence...."  (Id., at p. 1243.)

The defendant's and the victim's character can only be placed in evidence by the defendant.  (Evidence Code sections 1101, 1102, 1103.)

VII

STUDIES ON THE RELIABILITY OF PROFILES ARE REQUIRED BEFORE THEY ARE CAN BE ADMISSIBLE AS “PREDICTORS.”

In People vs. Ruiz, supra, the court held that based upon People vs. Stoll, supra, that profile evidence of a pedophile may be admissible.  However, since the profile had not been standardized against a population group of pedophile it was not admissible.  The court stated:

"Still, it is not enough to determine that certain material--here, profile evidence--might be admissible.  Evidence Code section 801, subdivision (b) requires that the matter underlying an expert's opinion be of `a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.'  Thus there must be some showing that the material on which the expert bases his or her opinion--here the profiles of the primary types of pedophile--is reliable.

As discussed, supra, there was no such showing in the present case.  There was no evidence that the scientific community had developed any standard profile of a pedophile.  Indeed, Dr. Berg explained that the tests he used were not designed to elicit that information and had not been standardized against a population group of pedophile.  Dr. Berg said that the disorder usually manifests itself in persons who have become fixated on children or on persons who have experienced some recent stress, but there was no showing that Dr. Berg was stating anything other than his personal opinion, nor was there any showing that his personal opinion in such matters was reliable.  We conclude that in this case, at least, the evidence properly was excluded."  (Id., at pp. 1245-1246.)

VIII

SYNONYMS ARE ALSO INADMISSIBLE

Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded unter the case of People v. Bledsoe, supra.   

IX

AN EXPERT'S PERSONAL OPINION ABOUT A DEFENDANT IS INADMISSIBLE

Other cases hold that it is error for an expert to express a personal expert opinion that the defendant is what he is accused of being.  In People vs. McDonald (1984) 37 Cal.3d 351, 208 Cal. Rptr. 236, the court ruled that the expert should have been permitted to testify about psychological factors affecting the reliability of eyewitness identification.  It did not hold that the expert could give an opinion on the reliability of particular eyewitness testimony.  (Also see People vs. Page (1991) 2 Cal.App.4th 161; People vs. Torres (1995) 33 Cal.App.4th 37, 46-48 [expert cannot express opinion on the guilt or innocence of the accused or whether or not the conduct in question constituted a crime].)  In People vs. Brown (1981) 116 Cal.App.3d 820, 172 Cal. Rptr. 221, the court found error where a police officer testified as to the definition of a heroin "runner" and then went further to render an opinion that the defendant in the case was in fact a runner.  The court held that the jury was as qualified as the witness to determine whether the defendant worked as a runner.  Finally, in In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1118-1125, the court held that the opinion of a psychiatrist who had examined a suspected victim of sexual molest as to the identity of the defendant as the abuser was inadmissible.

Respectfully submitted,

Dated:

__________________________

[NAME OF ATTORNEY]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

DEFENDANT MOVES TO EXCLUDE COUNSEL ARGUING CONSEQUENCES OF AN ACQUITTAL

• In Limine Orders Requested

The defense moves for orders in limine that the prosecution be precluded from arguing:

1. That an acquittal would allow Defendant to resume teaching children at Bible Studies again;
2. That an acquittal would put Defendant on the streets and as a consequence, put children at risk of molestation;
3. That the jurors should consider the reaction of neighbors to a verdict of not guilty.

/ / /

• It Would be Improper for the Prosecution to Argue Consequences of an Acquittal

It is improper for a prosecutor to urge the jury to convict because of the possible consequences of a failure to do so. Such probable consequences which would be inappropriate to argue would include arguments to the effect that an acquittal would permit the defendant to resume teaching and consequently might put other children “ at risk of molestation. “ Caselaw is clear that while commentary on a defendant's future dangerousness may be proper in the sentencing context, it has no place at the guilt phase of a trial.  (People v. Hayes (1990) 52 Cal.3d 577, 635; Com. Of Northern Mariana Islands v. Mendiola (9th Cir. 1992) 976 F.2d 475, 487 [conviction reversed where prosecutor urged that defendant could go out and kill again if acquitted because gun was still out there]; United States v. Cunningham (7^th Cir. 1995) 54 F.3d 295, 300 ["The government may not attempt to obtain a conviction by appealing to jurors to prevent future crimes by finding present guilt."].)   

In People v. Mendoza (1974) 37 Cal.App.3d 717,727, the defendant was charged with committing a lewd act upon a child under 14 years of age.  During closing argument, the prosecutor asked the jury to 'take the defendant off the streets.' The Court of Appeal reversed the conviction, finding that said comment by the prosecutor coupled with several other objectionable ones was not harmless error.  In finding the prosecutor's exhortation to the jurors to take the defendant off the streets error, the Court explained that “California law gives the responsibility for determining punishment in criminal cases to the judge and the Adult Authority. The jury’s responsibility is limited to the determination of the defendant’s guilt or innocence of the charge against him.” (Id., at p. 726.)  Similarly, in People v. Duckworth (1984) 162 Cal.App.3d 1115, 1123-1124, the prosecutor's argument during the sanity phase of trial which implied that the defendant would be on the streets and would thus pose a danger to society if he were found insane was reversible error. 

It is likewise improper for the prosecution to argue that the jury has a moral obligation to protect society from the defendant, or that if the defendant is acquitted, he will commit more crimes.  In People v. Whitehead (1957) 148 Cal.App.2d 701, the prosecution argued improperly in a child molest trial that men of the defendant’s age commit offenses of this character and his [the prosecutor's] office’s experience is that if such men are acquitted, they will repeat the same character of offense.  (Id., at p. 705.)  The reviewing court found such argument "highly inflammatory" and reversed the defendant's conviction.  (Id., at p. 705-706.)   

Furthermore, it is improper for the prosecution to argue that the jury should consider what the reaction of their neighbors would be if they were to acquit the defendant. In People v. Purvis (1963) 60 Cal.2d 323, 342, (overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631) the court reversed a first degree murder conviction based on prosecutorial misconduct which included a comment from the prosecutor following trial publicity in the Oakland Tribune newspaper which “threatened the jury with the statement that 'those outside that are not part of this jury have their eyes focused upon you just to see what you are going to do * * *.' The court held “A warning of probable consequences of failure to convict, and of the unfavorable reactions of neighbors is improper (48 Cal.Jur.2d, Trial, s 439, p. 446). 

DEFENDANTS OPPOSITIONS TO THE PEOPLE’S MOTIONS IN LIMINE

1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING VICTIM’S PRIOR SEXUAL CONDUCT

Defendant opposes the Prosecution’s Motion in limine regarding victim’s prior sexual conduct on the same grounds that the Defense makes the above motion for admitting such evidence under Evidence Code § 782 which is hereby incorporated by reference at this point.  

1. DEFENDANT’S OPPOSITIONS TO THE PEOPLE’S MOTION IN LIMINE REGARDING REGARDING REFERENCES TO STANDARDS OF PROOF.

The People motion in limine to preclude the defense from making any comparisons or

references to any standards other than reasonable doubt is misplaced and not supported by any applicable law.  In support, the People cite People v. Katzenberger (2009)178 Cal. App. 4th 1260, 1266, 101 Cal. Rptr. 3d 122, 126. However, the case is inapposite. Katzenberger precludes the prosecution from attempting to confuse the jury regarding standards of proof, ie. Suggesting that a conviction for example could be by either “clear and convincing” or a “preponderance” of evidence.  Here, counsel for Defense may wish during closing to compare the standard to clarify to the jury what “beyond a reasonable doubt” means. Accordingly, the People’s motion in limine in this regard should be denied. 

DEFENDANTS PROPOSED JURY INSTRUCTIONS

Defendant joins the People’s jury instruction except as to:

1. CALCRIM 315 as to Eyewitness Identification because there is no issue as to identification in this case; and 
2. CALCRIM 1193 Testimony on Child Sexual Abuse Accommodation Syndrome, states:

Testimony on Child Sexual Abuse Accommodation Syndrome You have heard testimony from <insert name of expert>regarding child sexual abuse accommodation syndrome’s <insert name of expert> testimony about child sexual abuse accommodation syndrome is not evidence that the defendant committed any of the crimes charged against (him/her).You may consider this evidence only in deciding whether or not’s <insert name of alleged victim of abuse> conduct was not inconsistent with the conduct of someone who has been molested, and in evaluating the believability of (his/her) testimony. 

New January 2006; Revised August 2016.

Defendant respectfully submits that CALJIC 10.69 provides a clearer and more accurate statement of the law. It states as follows:

Evidence has been presented to you concerning child sexual abuse accommodation syndrome. This evidence is not received and must not be considered by you as proof that the alleged victim's molestation claim is true. 

Child sexual abuse accommodation syndrome research is based upon an approach that is completely different from that which you must take to this case. The syndrome research begins with the assumption that a molestation has occurred, and seeks to describe and explain common reactions of children to that experience. As distinguished from that research approach, you are to presume the defendant innocent. The People have the burden of proving guilt beyond a reasonable doubt.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

POINTS AND AUTHORITIES

I

FACTUAL BACKGROUND

[INSERT RELEVANT FACTS]

II

THE GENERAL REQUIREMENTS AND THE BURDEN TO ESTABLISH THE REQUIREMENTS FOR ADMISSION OF A SPONTANEOUS STATEMENT

RESTS WITH THE PROSECUTION

The Prosecution bears the burden of establishing that a spontaneous statement was in fact spontaneous.  In the instant offense, the statements reflect incidents that if true, occurred nearly a decade ago.  This does not meet the foundation of a ‘fresh complaint.’

Rule (1):  Evidence of a declarant's hearsay statement is admissible under the spontaneous statement exception to the hearsay rule if:

(a)  The statement purports to narrate, describe, or explain an exciting act, condition or event observed by declarant; and

(b)  A statement was made spontaneously while the declarant was under the stress of excitement caused by such observation.

Rule (2):  If the opponent disputes the preliminary fact of declarant having made the statement spontaneously while under the stress of excitement, the proffered statement must be excluded unless the proponent sustains the burden of convincing the judge that declarant made the statement spontaneously and while under the stress of excitement.

 Jefferson's Evidence Benchbook; 2nd Ed. page 369, Section 13.1.  Authority: Evidence Code §§ 1240 and 405.

Explanation:

1. The acts observed must be of a nature to cause excitement in the declarant, such as an accident or a crime.
2. Declarant's statement must be made without reflection and while still under the stress of the excitement caused by the event.
3. The spontaneous statement must describe the exciting act or event and not relate to collateral matters.
4. Most rules, such as rules excluding expressions of inadmissible opinion, that apply to a witness testifying in court apply to the spontaneous statement hearsay exception, but a spontaneous statement of a declarant who is incompetent to be a witness (by reason of age or otherwise) is admissible under this exception.  People v. Butler (1967) 249 Cal.App.2d 799.
5. The burden of proof is on the proponent to establish admissibility and if the trial judge is not convinced that the declarant made the statement spontaneously and while under the stress of excitement caused by his observation, the statement must be excluded.

Jefferson's Evidence Benchbook, pages 370 to 371.

The statement must be “made under the immediate influence of the occurrence to which they relate.”  People v. Poggi (1988) 45 Cal.3d 306, 318,.  See In re Cheryl H. (1984) 153  1098 at pp. 1130-1131 (text and fn. 36).

II.

CIRCUMSTANCES UNDER WHICH A HEARSAY STATEMENT IS A “FRESH COMPLAINT”

The case of People v. Bunton (1961) 55 Cal.2d 328, made the exception referred to as fresh complaint.  The theory behind fresh complaint was stated as: “It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.” People v. Bunton, supra, p. 352.

The limits placed on admissibility were: “We therefore accept the view that although details cannot be recounted, it can be shown by the People `that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject'; that is the alleged victim's statement of the nature of the offense and identity of the asserted offender, without details, is proper.” People v. Bunton, supra, p. 352.

III.

FRESH COMPLAINTS ARE NOT ADMISSIBLE FOR THE TRUTH OF THE MATTER ASSERTED, AND THE DEFENSE IS ENTITLED TO A JURY INSTRUCTION TO THAT EFFECT

In the case of In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1128-1129, the court held that these fresh complaints are only admitted to show a complaint was made by the victim, and not for the truth of the matter stated.  In People v. Fair (1988) 203 Cal.App.3d 1303, 1313, fn. 4, the court held that the defense was entitled to a limiting instruction, but the trial court was not under a duty to instruct the jury sua sponte.

If the court holds any statement by any minor in this case to be a “fresh complaint” the defense now moves for an appropriate limiting instruction.

IV.

ELICITED STATEMENTS ARE NOT FRESH COMPLAINTS

In the case of People v. Fair (1988) 203 Cal.App.3d 1303, the minor's mother asked the minor who had been "messing with her".  The minor then implicated the mother's boyfriend in a molest.  The court held that a fresh complaint had in fact to be a complaint and not responses in a conversation started by a third party.

“Appellant challenges the admissions of Letisha's statement to her mother under fresh complaint doctrine because the statement was elicited, not voluntary.  There is merit to this claim of error.  In order to qualify under the fresh complaint doctrine, the out-of-court statement must truly be in the nature of a complaint and not in response to questioning.”  People v. Fair (1988) 203  1303, 1314.  

V.

CONCLUSION

The theory behind “fresh complaint” was stated in People v. Bunton, supra.  The theory was that it is natural to expect that the victim of such a crime would complain of it and the prosecution can show the fact of complaint to forestall the assumption that none was made.

Further, under People v. Bunton, supra, only the name of the alleged perpetrator and the general nature of the allegations (child molest) are admissible and not the details.  Further, the defense is entitled to a limiting instruction that the statement is not introduced for the truth of the matter asserted.

All prosecution witnesses testifying to a "fresh complaint" should be instructed by the Prosecutor that his or her testimony is limited to (a) name of alleged victim; (b) name of alleged perpetrator; (3) date or time of the "fresh" act; (4) that the allegation was of molestation but give no details.  Complaints made in response to questions are not “fresh complaints.”

Dated:                

Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

DEFENDANT MOVES TO EXCLUDE POST MOLESTATION SYMPTOMS OF ALLEGED VICTIM (VICTIM IMPACT EVIDENCE)

•  The Prosecution May Not Introduce Victim Post-Molestation Behavior and Statements to Prove an Alleged Molestation Actually Occurred

Opinion testimony on rape trauma syndrome and Child Abuse Accommodation Syndrome is inadmissible to prove that an alleged victim was sexually attacked but may, in keeping with certain narrow parameters, be admitted to support the credibility of a witness.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 203 Cal. Rptr. 450; In re Sara M. (1987) 194 Cal.App.3d 585. Thus, it is improper to prove that a crime had occurred based on symptoms that the alleged victim exhibited post-crime.  

These symptoms include but are not limited to: 1) Disorientation; Stress; Agitation; Fear; Anxiety; Subdued; Controlled; Flashbacks; Denial; Relives incident; Insecurity; Nightmares; Trauma; Mistrust.  Bledsoe, supra, 36 Cal.3d at p. 242-243 and: 2) Consistency of story; Denial; Unusual sexual knowledge; Feeling of loss of control;  Anger; Depression; Behavioral problems; Sleep disturbances; Nightmares; Eating disorders; False sense of maturity; Trust too much; Trust too little; Fear; Details given over time. In re Sara M., 194 Cal.App.3d at p. 589.

People vs. Jeff (1988) 204 Cal.App.3d 309, 251 Cal. Rptr. 135 is controlling.  In that case the prosecution presented one expert witness who described the alleged complainant's post-molest symptoms, including nightmares, crying, depression, low self-esteem, and helplessness.  The prosecution then presented a second witness to explain these symptoms as evidence of child molest.  Neither witness was called for the purpose of rehabilitating the complaining witness.  (Id., at p. 338.)  The defense objected to the first witness on the ground that it was evidence of post-molest emotions used to prove that the molestation had occurred and objected to the second witness testimony as improper opinion testimony under People vs. Bledsoe, supra and In re Sara M., supra.  The trial court held each witnesses' testimony was admissible with respect to the symptoms exhibited by the complaining victim, but that neither witness would be allowed to state her opinion regarding whether a molestation had in fact occurred.  The Court of Appeal found the admission of such testimony and the trial court's attempt to limit its import ran afoul of the proscriptions set forth in Bledsoe, supra, and its progeny and reversed the defendant's conviction:

It is not significant the prosecutor told the jury Susan Holland would merely describe symptom she observed and “[a]ny conclusion that is to be drawn will be yours.”  In effect and result, the prosecutor, by what he apparently believed was a brilliant subterfuge, engaged in the exact conduct, here condoned by the trial court, that was proscribed in Bledsoe, Gray and In re Sara M.  The challenged testimony was not offered to rehabilitate a wavering or equivocal Gypsy.  Rather, it told the jury that they should accept gypsy's version of these events as true, that she was a victim, molested over a three-year period by defendant, because here is now typical child molest victims act and Gypsy fits the mold perfectly.

People vs. Jeff, supra, 204 Cal.App.3d at p. 340.

That the testimony concerning a complaining witness's post molest symptoms does not come from an expert does not make it admissible.  In In re Christie D. (1988) 206 Cal.App.3d 469, 253 Cal. Rptr. 619, the court held that the non-expert status of witness opinion concerning the sex play with anatomical dolls did not make the play admissible.  (Id., at pp. 478-480.)  The play with anatomical dolls was not relevant to establish a molestation had occurred since there was no study showing its reliability as a predictor whether the opinions interpreting the play were formed by the expert or the trier of fact.  Therefore, since experts cannot form opinion interpreting post-molest symptoms as a predictor of molest, the non-expert status of the witness does not cure the problem.

• Alleged Post-Molestation Symptoms are Inadmissible as Improper Victim Impact Evidence Absent a Theory of Relevance

Victim impact evidence, i.e., post-molest symptoms, is inadmissible at the guilt phase of a trial unless relevant to a specific disputed issue in the case.  For example, in People v. Redd (2010) 48 Cal.4th 691, the victim’s testimony concerning the permanency of his injuries was deemed relevant to a charged great bodily injury enhancement.  (Id., at p. 731-732.)  In People v. Taylor (2001) 26 Cal.4th 1155, 1171, a doctor’s testimony about the victim’s injuries and loss of bodily functions was held relevant to show the extent of said injuries and confirm he could accurately recall the incident.  

/ / / 

Generally, victim impact evidence (or victim impact argument by the prosecution) at the guilt phase is inadmissible as having little probative value and great prejudicial effect.  In People v. Vance (2010) 188 Cal.App.4th 1182, the defendant’s murder conviction was reversed where the prosecutor made a victim impact argument during his argument to the jury.  The court noted that such argument is banned at the guilt phase, stating, “The justification for both of these exclusionary policies is that they deal with subjects that are inherently emotional, possessing an unusually potent power to sway juries, and that their use must therefore be rigidly confined and controlled.”  (Id., at 1193.)  

Other jurisdictions are in accord.  See Colon v. Georgia (2005) 619 S.Ed.2d 773 [victim impact evidence in child molest case admissible to rebut defendant’s attack on credibility of child victim]; United States v. Copple (3rd Cir. 1994) 24 F.3d 535, 546 [error to admit victims’ testimony about negative effects of defendant’s fraud on their health and savings, such testimony was more prejudicial than probative]; Sager v. Maass (D.C. Ore. 1995) 907 F. Supp. 1412, 1419-1420 [ineffective assistance of trial counsel for said counsel to introduce at guilt phase victim’s entire written victim impact statement, which was a “prejudicial piece of evidence”]; Armstrong v. State (Wyo. 1992) 826 P.2d 1106, 1116 [“Consideration of victim-impact testimony or argument remains inappropriate during proceedings determining the guilt of an accused”]; Miller-El v. State (Tex. Crim. App. 1990) [in an attempted murder case, a victim’s paraplegic disability hardship held inadmissible in the guilt phase: “We cannot agree, however, that [Dr.] Harrison’s testimony regarding Hall’s future hardship as a paraplegic had any tendency to make more or less probably the existence of any fact of consequence at the guilt stage of trial”].

Based on these authorities, victim impact evidence in this case must be excluded unless the prosecution can articulate a theory of relevance and this Court conducts the necessary balancing of interests under Evidence Code section 352.     

/ / /

/ / /

/ / /

/ / 

• Evidence Code § 352 Precludes Testimony of Post-Molest Symptoms (Victim Impact Testimony), Further, the Admission of Such Evidence Would Violate Defendant’s Federal Constitutional Right to Due Process and a Fair Trial

Evidence Code § 352 permits the trial court in its discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial impact, if it will consume an undue amount of time, confuse the issues or mislead the jury.  “The prejudice which [section] 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. [Citations] Rather, the statute uses the word in its etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors. [Citation].  People vs. Harris (1998) 60 Cal.App.4th727 (internal quotation marks omitted).

Testimony of a victim’s post-molest symptoms cannot be used to establish the molestation occurred, is extraneous to the case, highly prejudicial and will engender undue sympathy for her and hence antipathy for the defendant.  In finding that such evidence had been erroneously admitted, the Third Circuit Court of Appeals in Copple, supra, explained:

Testimony such as this had either no, or very little probative value and was unfairly prejudicial.  We believe that it was irrelevant either for the purposes of proving that Copple had failed to make up the loss to the funeral directors or for any other reason. Even if there had been some marginal relevance to the testimony about the particular personal or professional impact the losses had on the funeral directors, its principal effect, by far, was to highlight the personal tragedy they had suffered as victims of the scheme.  The testimony was designed to generate feelings of sympathy for the victims and outrage toward Copple for reasons not relevant to the charges Copple faced.  It arguably created a significant risk that the jury would be swayed to convict Copple as a way of compensating these victims wholly without regard to the evidence of Copple’s guilt.

United States v. Copple, supra, 24 F.3d at 546.

Further, such evidence may result in an undue consumption of time.  For example, if the victim were to testify to having nightmares or to being withdrawn, the defense on cross-examination will have the right to search for alternate explanations which would include everything that ever happened to the child that could cause these symptoms making for an endless trial.  

Defendant further submits that the admission of post-molest symptoms/victim impact evidence in this case would violate his constitutional rights to due process and a fair trial under the 5th, 6th and 14th Amendments to the U.S. Constitution and article 1, sections 7 and 15 of the California Constitution.  (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 [reversal of murder conviction because of other crimes evidence of the defendant’s knife collection and fascination with knives violated federal due process where that evidence was irrelevant to the crime charged]; Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 887 [same]; Clark v. Duckworth (7th Cir. 1990) 906 F.2d 1174 [the defendant has a federal constitutional right to a trial free of irrelevant and prejudicial evidence].)

• If This Court Permits the Prosecution to Admit Evidence of The Victim's Post-Molest Symptoms, Then it Must Allow the Defense To Offer Evidence Of Alternative Explanations for Those Symptoms.

Should this court allow the prosecution to admit evidence of the complaining witness's alleged post-molest symptoms as a valid predictor of a crime, due process compels it to allow the defense to present evidence of alternative explanations for those symptoms.  (People vs. Reeder (1978) 82 Cal.App.3d 543, 550; People vs. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.)  As stated in Reeder:

Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense.  In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements.

Reeder, supra at p. 553, emphasis added.

Depending on what symptoms are presented there may be many alternative explanations in this case.  For example, LC is known to have a host of mental issues. RC has a known learning disability.  CG has a known serious heart condition

• Conclusion

Based on the foregoing, the prosecution should be excluded from presenting evidence of the alleged complainant's post-molest symptoms as a predictor that a molestation in fact occurred and because such evidence constitutes improper victim impact evidence inadmissible at the guilt phase.  If the court allows such evidence, it must allow the defense to admit evidence of alternative explanations for the existence of such symptoms.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

Aaron Shnider, SBN 337108

Innocence Legal Team

18002 Irvine Boulevard

Tustin, CA  92780

Tel: 925 948-9000 ext. 102

Email: shnider@innocencelegalteam.com

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SACRAMENTO

PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, MAX SHKODNIK (“Defendant”) will move for a protective order that:

1.  The prosecution cannot introduce evidence that the alleged victim is receiving therapy based on the alleged offenses.
2. The prosecution cannot introduce evidence that the alleged victim is in need of psychological counseling for child molest.

Dated:

__________________________

Aaron Shnider

Attorney for Defendant

I.

THE FACT THAT THE MINOR MAY HAVE RECEIVED THERAPY 

IS IRRELEVANT TO THE INSTANT ALLEGATIONS

No evidence is admissible unless it is relevant evidence.  All relevant evidence is admissible unless it is made inadmissible by some constitutional or statutory provision or by a judicial rule of exclusion that is established in the interests of justice by the California Supreme Court by virtue of its inherent supervisory power over the trial courts of the state. Ev.Code Section 210, 350-351.

Evidence that is offered to prove a fact that is not disputed is irrelevant evidence and, as such, is inadmissible.  Ev.Code Section 210, 350."  Proffered evidence is relevant to prove or disprove a disputed fact in an action if:

(a) The disputed fact is either an intermediate fact or an ultimate fact that is of consequence to determination of the action; and

(b) Such evidence, in the light of logic, reason, experience, or common sense, has, by reasonable inference, a tendency to prove or disprove such disputed fact. 

Proffered evidence is not relevant if it has a tendency to prove or disprove a disputed intermediate fact or an ultimate fact of consequence to determination of the action only by resort to inference or deductions from such evidence that are speculative or conjectural in nature. EvCode Section 210.  Also see People vs. Scheid (1997) 16 Cal.4th 1 [only relevant evidence is admissible]; People vs. Crittenden (1994) 9 Cal.4th 83, 132 [a trial court has no discretion to admit irrelevant evidence]; People vs. De La Plane (1979) 88 Cal.App.3d 223, 242 [evidence which only produces speculative inferences is irrelevant evidence].)

II.

OPINION TESTIMONY THAT ALLEGED VICTIM WAS IN FACT

SEXUALLY MOLESTED IS INADMISSIBLE

Expert opinion testimony that an alleged victim suffers from rape trauma syndrome or child molest syndrome is inadmissible to prove that any rape or molest/abuse occurred.  (People vs. Bledsoe (1984) 36 Cal.3d 236, 238; People vs. Roscoe (1985) 168 Cal.App. 1093, 1099-1100.)

Decades of litigation has established that expert testimony on child sexual abuse accommodation syndrome is unreliable as a matter of law to prove the molest occurred.  In People v. Bledsoe (1984) 36 Cal.3d 236, the Supreme Court applied Kelly/Frye to exclude expert psychological testimony based upon the "rape trauma syndrome."  The court held that expert testimony that the complaining witness was suffering from rape trauma syndrome was inadmissible to show a rape had actually occurred because the syndrome was developed as a "therapeutic tool" and not to determine the "truth" or "accuracy" of a particular past event.  (Id. at p. 249.)

Relying on Bledsoe, numerous Court of Appeal decisions have held that Kelly/Frye similarly precludes an expert from testifying, based on the Child Sexual Abuse Accommodation Syndrome (CSAAS), that a particular victim's report of alleged abuse is credible because the victim manifests certain defined characteristics which are generally exhibited by abused children.  (See, In re Sara M. (1987) 194 Cal.App.3d 585, 593; Seering v. Dept. of Social Services (1987) 194 Cal.App.3d 298, 310-311, 313; People v. Roscoe (1985) 168 Cal.App.3d 1093, 1099; People v. Willoughby (1985) 164 Cal.App.3d 1054, 1069.

In addition to prohibiting direct testimony that a molest occurred or that an alleged victim is credible, it is also error to permit testimony that creates such an inference.  Courts risk creating such an inference when they allow someone closely connected to the case to testify as a ‘general’ expert.  Such an inference is created, if the Court were to allow testimony that the minor sought treatment following the alleged abuse in the instant case.  

III

THE ADMISSION OF EVIDENCE OF THERAPY 

STATUS VIOLATES EVIDENCE CODE SECTION 352

Evidence Code Section 352 requires the trial court to balance any asserted probative value of a particular piece of evidence against its prejudice and exclude evidence the prejudice of which outweighs its probative value or has a substantial danger of confusing the issues or misleading the jury.  In People vs. Harris (1998) 60 Cal.App.4th 727, the reviewing court restated the meaning of "prejudice" within the context of Evidence Code section 352:

""'The prejudice which [section 352] is

designed to avoid is not the prejudice or

damage to a defense that naturally flows from

relevant, highly probative evidence.' [Citations.]        

 'Rather, the statute uses the word in its

etymological sense of "prejudging" a person or

cause on the basis of extraneous factors.'"  

[Citation omitted.]" (Id., at p. 737.)

The fact that the alleged victim may be in therapy or a dependent child would only serve to create undue sympathy for him/her at the defendant's expense and would confuse the issues.  Such evidence must therefore be excluded.

CONCLUSION

The admission of testimony that the complaining witness sought therapy following the alleged instances of abuse is irrelevant, violates Bledsoe mandates against such introduction and is highly prejudicial to the instant case.  

Dated: September 26, 2022

Respectfully Submitted,

___________________

AARON SHNIDER

Attorney for MAX SHKODNIK

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

PLEASE TAKE NOTICE that on the above date and time and in the above-designated department, Defendant will move this court for an order excluding the any reference to polygraphs.

DATE:

___________________________

[ATTORNEY NAME]

Attorney for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

1. Purpose of Motion in Limine

The central cases on in limine motions are Amtower v. Photon Dynamics, Inc., 158 Cal.App.4th 1582 (2008); Kelly v. New West Federal Savings, 49 Cal.App.4th 659 (1996); and R & B Auto Center, Inc. v. Farmers Group, Inc., 140 Cal.App.4th 327 (2006) (Rylaarsdam, Acting P .J., concurring).

The key function of these motions is to ensure juries do not hear inadmissible evidence,

and in particular inadmissible evidence which may prejudice the jury. "The advantage of such

motions is to avoid the obviously futile attempt to Un-ring the bell in the event a motion to strike

is granted in the proceedings before the jury." Amtower, 158 Cal.App.4th at 1593, quoting Hyatt

1. Sierra Boat Co., 79 Cal.App.3d 325, 337 (I 978). Secondly, in limine motions can help speed

the trial and allow for a more considered decision on difficult evidentiary issues. Kelly, 49

Cal.App.4th at 669-70.

1. Relevance

Only relevant evidence is admissible at trial.  Evidence Code § 350.  “Relevant evidence” means testimony or physical objects, including evidence bearing on the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of an action.  Evidence Code § 210; People vs. Scheid (1997) 16 Cal.4th 1.  A court has no discretion to admit irrelevant evidence.  People vs. Crittenden (1994) 9 Cal.4th 83, 132.   Evidence which produces only speculative inferences is irrelevant evidence.  People vs. De La Plane (1979) 88 Cal.App.3d 223, 242.  Whether or not evidence is relevant is a decision within the trial court's discretion.  People vs. Von Villas (1992) 10 Cal.App.4th 201, 249.  The trial court abuses its discretion in admitting evidence when it can be shown under all the circumstances that it exceeded the bounds of reason.  (People vs. De Jesus (1995) 38 Cal.App.4th 1, 32.

1. Court’s Discretion

“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Evidence Code § 352.   “Prejudicial” is not synonymous with “damaging,” but refers instead to evidence that “uniquely tends to evoke an emotional bias against defendant” without regard to its relevance on material issues). People v. Kipp (2001) 26 Cal. 4th 1100, 113 Cal. Rptr. 2d 27, 33 P.3d 450.  

The balancing process requires consideration of the relationship between evidence and relevant inferences to be drawn from it, whether evidence is relevant to main or only a collateral issue, and necessity of evidence to proponent’s case as well as reasons recited in statute for exclusion. Kessler v. Gray (1978) 77 Cal. App. 3d 284, 143 Cal. Rptr. 496.  Because evidence of other, uncharged offenses can be highly prejudicial, trial courts should use particular care in performing balancing analysis under Section 352. People v. Millwee (1998) 18 Cal. 4th 96, 74 Cal. Rptr. 2d 418, 954 P.2d 990, cert. denied. 

For example, the trial court committed reversible error in rape and kidnapping trial by admitting uncharged act evidence that defendant put his finger in the mouth of previous attempted kidnapping victim; the jury could infer a sexual connotation to the prior offense, and the prejudicial effect of the evidence exceeded its comparatively low probative value.  People v. Jandres (2014) 226 Cal. App. 4th 340, 171 Cal. Rptr. 3d 849.  Similarly, in a prosecution for committing a forcible lewd act upon a child, where the key issue was whether the defendant had the intent to commit the act when he entered the victim’s house, the trial court erred in permitting the court-appointed interpreter to testify that she had seen defendant moving his hands near his groin during victim’s testimony; such testimony could confuse and inflame the jury.  People v. Leon (2001) 91 Cal. App. 4th 812, 110 Cal. Rptr. 2d 776.

By enacting this section 352, the legislature gave courts the means to facilitate judicial economy.  DePalma v. Westland Software House (1990) 225 Cal. App. 3d 1534, 276 Cal. Rptr. 214. The issue of judicial economy is served by the exclusion of any mention of polygraphs because it would require Defendant to call rebuttal witnesses on collateral issues of scant relevance and possible enormous prejudice.  See People v. Morrison (2011) 199 Cal. App. 4th 158, 131 Cal. Rptr. 3d 26 (Contrary to the common law rule and popular belief, a trial court has substantial discretion to allow rebuttal witness to contradict testimony on direct examination, even though the rebuttal is impeachment on a collateral fact).

II.

POLYGRAPH

Evidence Code § 351.1 regarding polygraph Examinations, provides:

1. a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post-conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.
2. b) Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.

Defendant was questioned regarding his willingness to take a polygraph. Since polygraph evidence is itself inadmissible per Evidence Code § 351.1, any reference thereto is inadmissible as irrelevant.  

II

The Accidental/Incidental Mention by a Defense Witness of a Polygraph Does not Open the Door to Further Evidence on That Subject

If any witness accidentally/incidentally mentions the defendant’s sexual activities with adults, the door to further evidence on that subject has not “opened.”  “By allowing objectionable evidence to go in without objection, the non-objecting party gains no right to the admission of related or additional otherwise inadmissible testimony.  The so-called ‘open the door’ or ‘open the gates argument is a ‘popular fallacy.’  (Citation Omitted).” People vs. Gambos (1970) 5 Cal.App.3d 187; People vs. Williams (1989) 213 Cal.App.3d 1186, 1189, fn. 1; People vs. Valentine (1988) 207 Cal.App.3d 697, 705 [government's purported impeachment of defendant was an improper rebuttal to a collateral matter improperly raised on cross-examination].

IV.

CONCLUSION

Defendant respectfully requests to exclude any mention of polygraphs as it relates to Defendant as all such evidences is irrelevant, an undue waste of time and/or substantially more prejudicial than probative. Evidence Code §§ 210, 350, 350.1, 352.

Dated: January 25, 2024

___________________________

[ATTORNEY NAME]

Attorney for Defendant

DECLARATION OF ____________________________

I, ________________________ declare:

1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on March 24, 2020.
2. I represent and am trial counsel defendant _____________________(“Defendant”).
3. The same is true for several other clients including:B [insert relevant conflicting case information]

I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.  

Executed in Pleasant Hill, CA on January 25, 2024.

DATE: Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

POINTS AND AUTHORITIES

I

FACTUAL BACKGROUND

[INSERT RELEVANT FACTS]

II

1. THE JUNK SCIENCE OF CSAAS

In 1983 Dr. Roland Summit wrote a paper entitled The Child Sexual Abuse Accommodation Syndrome, also known as CSAAS. However, this “syndrome” was never been recognized by either the American Psychological Association or the American Psychiatric Association.  In re Sara M. (1987) 194 Cal.App.3d 585, 594, 239 Cal. Rptr. 605-611.

Indeed, it is well accepted that is not even a true “syndrome.”   

Nevertheless, Dr. Summit claimed it was valid to “dispel myths” regarding the behavior of child molestation victims. Notwithstanding the recognition that this syndrome did not pass scientific standards, the California Supreme Court allowed it to be admitted into evidence in the landmark 1984 case of People vs. Bledsoe (1984) 36 Cal.3rd 236, 249.

The admission of the Child Sexual Abuse Accommodation Syndrome made obtaining convictions much easier for the prosecution because it opened the door to so called CSAAS “experts” being called to explain away every piece of evidence favorable to the accused. 

Every delay in reporting abuse and every inconsistent statement by the accuser could now be rebutted by such “experts” as “a myth.”

In truth though, a careful study of the syndrome reveals that it has a “myth” to explain how every child behavior is consistent with the child having been molested.  No matter what the defense presents, the syndrome always explains that the evidence is somehow consistent with having been molested. This is because the Child Sexual Abuse Accommodation Syndrome starts with the assumption that all the children that they were studying were, in fact, molested. Thus, if a child is consistent in telling of the story, that is consistent with having been sexually molested.  If the child changes his or her story, that too is consistent with having been molested because the trauma of abuse has made recall difficult.  If the child retracts their story and says it was a false allegation, that is consistent with having been molested, because the child sees that his or her family is being hurt. If the child appears sexualized, that is consistent with having been molested.  If the child does not appear sexualized, that also is consistent with having been molested.  If the child is in fear of and withdraws from the accused, that is consistent with being molested. If the child loves and wants to be with the accused, that is also consistent with having been molested. If the child reports the molestation immediately, that is consistent with having been molested. If the child delays reporting, even for years, that too is consistent with having been molested.

There are no known cases in which a prosecution CSAAS “expert” ever found a behavior inconsistent with having been molested.  Indeed, in the decades it has been around, this junk science is used by child advocates and the DA’s that hire them to get convictions.  

What these so called experts will never acknowledge is the fact that all of these behaviors are also consistent with a false allegation. Something neither Dr. Roland or the horde of so called experts that followed him have ever recognized.

It is important to note, the last paragraph Summit’s paper, The Child Abuse Accommodation Syndrome, states: “It has become a maxim among child sexual abuse intervention counselors and investigators that children never fabricate the kinds of explicit sexual manipulations they divulge in complaints or interrogations.”  If that were the case, we need no courts, no judges, no juries and no legal system.  An accusation should be good enough to put the accused away for life. 

1. BLEDSOE AND ITS PROGENY

In People vs. Bledsoe (1984) 36 Cal.3rd 236, 249, the California Supreme Court held that rape trauma syndrome was inadmissible to show a rape had actually occurred, but could be admissible to “disabus[e] the jury of some widely held misconceptions about rape and rape trauma victims so that it may evaluate the evidence free of the constraints of popular myths.”

In this case the court must exclude 

• “…secrecy and the related component of delayed and unconvicting disclosure, both girls did not immediately disclose their abuse”
• “…uncommon for victims to lay out everything that happened to them all at once. They may also appear detached and confused when sharing the abuse to others and mix up time frames and details of the abuse.”
• “…helplessness and accommodation and entrapment..”
• “…as a class, victims of child sexual abuse will feel trapped/stuck in the situation where they feel they cannot tell others what is happening with them and will accommodate to the abuse through coping mechanisms like dissociation. They may hide their abuse and try to block it from their mind after the fact. They may stop resisting because they feel like such efforts are fruitless and just allow the abuser to ‘get it over with.’ They may even cope by displaying positive feelings towards their abuser or not actively avoid him.”

Following Bledsoe, courts limited this unjust and highly prejudicial “evidence.”  For example, testimony is limited to victims as a class and not a particular alleged victim.  People vs. Roscoe (1985) 168 Cal.App.3d 1093, 1098-1100; People vs. Gray (1986) 187 Cal.App.3d 213, 218; People vs. Coleman (1989) 48 Cal.3d 112, 144; and People vs. Stark (1989) 213 Cal.App.3d 107, 116-117.  In addition, testimony not properly limited is excludable pursuant to Evidence Code section 352.  (Roscoe, supra, at p. 1100.)

In People vs. Bowker (1988) 203 Cal.App.3d 385, 394, 249 Cal. Rptr. 886, 891, the court considered whether or not the testimony of a child abuse accommodation syndrome expert fell within the Bledsoe exception permitting such testimony for the narrow purpose “of disabusing the jury of misconceptions as to how child victims react to abuse.”  (Id., at p. 392.)  The court reaffirmed that "Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse," and found the expert's testimony had exceeded the Bledsoe exception holding that "at a minimum the evidence must be targeted to a specific 'myth' or 'misconception' suggested by the evidence."  (Id., at pp. 393-394.)  The court further held:

“In the typical criminal case, however, it is the People's burden to identify the myth or misconception the evidence is designed to rebut.  Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id., at p. 394.)

In determining that the expert's testimony erroneously exceeded the permissible limits of the Bledsoe exception, the Bowker court found that the expert's testimony was tailored to fit the children in that particular case, asked for sympathy, asked that children be believed and by describing each aspect of CSAAS theory provided a scientific framework the jury could use to predict a molest occurred.  The court ruled that this evidence should have been excluded.  (Id., at pp. 394-395.)  

Synonyms are also inadmissible.  Some expert have used the “trick” of using synonyms to the word “profile”.  These synonyms should be excluded for the same reason.  The main synonym that is used is “patterns”.   This is a different word without a distinction.  Both “profiles” and “patterns” should be excluded under the case of People v. Bledsoe, supra.   

1. THE COURT MUST EXCLUDE DR. ______________’S PROPOSED TESTIMONY

Every aspect of Dr. ____________’s proposed testimony improperly relies on supposed statistics by the use of words such as “overall” and “as a class” to indicate a majority, a large majority, or practically all cases follow the referenced scenario.  In many if not most of these scenarios, no such statistics actually exist.

Here is how the prosecution summarizes his Dr. ____________'s testimony:

Dr. ____________ will testify that sexual abuse generally happens behind closed doors, that the abuser may enlist strategies to keep the child quiet about the abuse, that people shouldn’t expect the child to easily tell about their abuse right away and reasons why, and that overall, children are quiet about these events. He will explain that as a class, children are fearful of breaking up family dynamics and their family hating them, they may be confused about what is happening to them, particularly if abused by a loved and trusted figure, and that children ultimately want to feel normal, which can contribute to why they will keep the abuse a secret from others. Another significant concern is not being believed by others. Further, if they initially keep the acts a secret, this can also add pressure to a child to continue to keep the abuse a secret. Maturation can assist in the ability to disclose as can knowledge that they are not alone in the victimization. He will also indicate that inconsistencies in disclosure are typical, particularly with chronic abuse, and that it is uncommon for victims to lay out everything that happened to them all at once. They may also appear detached and confused when sharing the abuse to others and mix up time frames and details of the abuse.

(Emphasis added).

Each of these terms (“generally,” “may,” “as a class,” “May be,” “significant concern,” “typical”) gives the impression of a statistical basis for the testimony which is not only false and scientifically unfounded, it is prohibited under the well-founded principle excluding statistical evidence, precisely because it is subject to the kind of manipulation which Dr. ____________ proposed testimony is riddled with. See People v. Wilson (2019) 33 Cal.App.5th 559; People v. Julian (2019) 34 Cal.App.5th 878; People v. Collins (1968) 68 Cal.2d 319, 327; People v. Bowker (1988) 203 Cal.App.3d 385, 393.

A criminal defendant is entitled to be tried on the relevant evidence against him, not on statistics and probabilities that bear no relation to the particular acts he is accused of. (U.S. Const., 14th Amend.; People v. Collins (1968) 68 Cal.2d 319, 320 [statistical testimony “distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules”]; Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; Snowden, supra, 135 F.3d at pp. 737-739; Lisenba v. People of the State of California (1941) 314 U.S. 219, 235-237 [62 S.Ct. 280].)  Given that the prosecution of a child sexual abuse case normally turns on the respective credibility of the complainant and the defendant, the admission of expert opinion that improperly bolsters the credibility of the victim deprives the defendant of due process of law.  Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737.

Such testimony would also violate defendant’s right to present a defense.  (U.S. Const., 6th & 14th Amends.; see Collins, supra, 68 Cal.2d at pp. 327, 331 [statistical testimony “foreclosed the possibility of an effective defense by an attorney apparently unschooled in mathematical refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory”]; Cal. Const., art. I, §§ 15 & 16.)

Last, but far from least, such testimony would also undermine defendant’s right to the presumption of innocence and reduce the prosecution’s burden of proof beyond a reasonable doubt.  (See Taylor v. Kentucky (1978) 436 U.S. 478, 487-488, 490 [jury was improperly invited to consider petitioner’s status as a defendant and permitted to draw inferences of guilt from fact of arrest and indictment]; In re Winship (1970) 397 U.S. 358, 363; Estelle v. Williams (1976) 425 U.S.501, 503; U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.)  In effect, such statistics convert the fact that an accusation had been made to a probability of guilt; from such testimony, jurors could conclude, without considering any evidence specific to this case, that there is a 92 to 99 percent chance that the defendant was guilty. (See generally Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1360-1361, 1368-1372 (1971) [statistical evidence undermines the presumption of innocence].)

For the above reasons, the defense requests the court to exclude or at least sharply limit Dr. ____________’s proposed testimony. 

1. THE REQUIREMENT OF LIMITING INSTRUCTIONS

 If the court decides to allow Dr. ______________ proposed testimony the court must order that no words or references implying a statistical basis must be used before the jury. In addition the court should issue a limiting instruction. 

Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert's testimony is not intended and should not be used to determine whether the victim's molestation claims is true.  The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury.  CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience.  (See In re Sara M., supra, 194 Cal.App.3d at p. 593, 239 Cal. Rptr. 605.) The evidence is admissible solely for the purpose of showing that the victim's reactions as demonstrated by the evidence are not inconsistent with having been molested.  Bowker, supra, at p. 394; People vs. Housley (1992) 6 Cal.App.4th 947, 958-959 (instruction required sua sponte).  

The Prosecution bears the burden of establishing that a spontaneous statement was in fact spontaneous.  In the instant offense, the statements reflect incidents that if true, occurred nearly a decade ago.  This does not meet the foundation of a ‘fresh complaint.’

Rule (1):  Evidence of a declarant's hearsay statement is admissible under the spontaneous statement exception to the hearsay rule if:

(a)  The statement purports to narrate, describe, or explain an exciting act, condition or event observed by declarant; and

(b)  A statement was made spontaneously while the declarant was under the stress of excitement caused by such observation.

Rule (2):  If the opponent disputes the preliminary fact of declarant having made the statement spontaneously while under the stress of excitement, the proffered statement must be excluded unless the proponent sustains the burden of convincing the judge that declarant made the statement spontaneously and while under the stress of excitement.

 Jefferson's Evidence Benchbook; 2nd Ed. page 369, Section 13.1.  Authority: Evidence Code §§ 1240 and 405.

Explanation:

1. The acts observed must be of a nature to cause excitement in the declarant, such as an accident or a crime.
2. Declarant's statement must be made without reflection and while still under the stress of the excitement caused by the event.
3. The spontaneous statement must describe the exciting act or event and not relate to collateral matters.
4. Most rules, such as rules excluding expressions of inadmissible opinion, that apply to a witness testifying in court apply to the spontaneous statement hearsay exception, but a spontaneous statement of a declarant who is incompetent to be a witness (by reason of age or otherwise) is admissible under this exception.  People v. Butler (1967) 249 Cal.App.2d 799.
5. The burden of proof is on the proponent to establish admissibility and if the trial judge is not convinced that the declarant made the statement spontaneously and while under the stress of excitement caused by his observation, the statement must be excluded.

Jefferson's Evidence Benchbook, pages 370 to 371.

The statement must be “made under the immediate influence of the occurrence to which they relate.”  People v. Poggi (1988) 45 Cal.3d 306, 318,.  See In re Cheryl H. (1984) 153  1098 at pp. 1130-1131 (text and fn. 36).

II.

CIRCUMSTANCES UNDER WHICH A HEARSAY STATEMENT IS A “FRESH COMPLAINT”

The case of People v. Bunton (1961) 55 Cal.2d 328, made the exception referred to as fresh complaint.  The theory behind fresh complaint was stated as: “It is natural to expect that the victim of such a crime would complain of it, and the prosecution can show the fact of complaint to forestall the assumption that none was made and that therefore the offense did not occur.” People v. Bunton, supra, p. 352.

The limits placed on admissibility were: “We therefore accept the view that although details cannot be recounted, it can be shown by the People `that the complaint related to the matter being inquired into, and not a complaint wholly foreign to the subject'; that is the alleged victim's statement of the nature of the offense and identity of the asserted offender, without details, is proper.” People v. Bunton, supra, p. 352.

III.

FRESH COMPLAINTS ARE NOT ADMISSIBLE FOR THE TRUTH OF THE MATTER ASSERTED, AND THE DEFENSE IS ENTITLED TO A JURY INSTRUCTION TO THAT EFFECT

In the case of In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1128-1129, the court held that these fresh complaints are only admitted to show a complaint was made by the victim, and not for the truth of the matter stated.  In People v. Fair (1988) 203 Cal.App.3d 1303, 1313, fn. 4, the court held that the defense was entitled to a limiting instruction, but the trial court was not under a duty to instruct the jury sua sponte.

If the court holds any statement by any minor in this case to be a “fresh complaint” the defense now moves for an appropriate limiting instruction.

IV.

ELICITED STATEMENTS ARE NOT FRESH COMPLAINTS

In the case of People v. Fair (1988) 203 Cal.App.3d 1303, the minor's mother asked the minor who had been "messing with her".  The minor then implicated the mother's boyfriend in a molest.  The court held that a fresh complaint had in fact to be a complaint and not responses in a conversation started by a third party.

“Appellant challenges the admissions of Letisha's statement to her mother under fresh complaint doctrine because the statement was elicited, not voluntary.  There is merit to this claim of error.  In order to qualify under the fresh complaint doctrine, the out-of-court statement must truly be in the nature of a complaint and not in response to questioning.”  People v. Fair (1988) 203  1303, 1314.  

V.

CONCLUSION

The theory behind “fresh complaint” was stated in People v. Bunton, supra.  The theory was that it is natural to expect that the victim of such a crime would complain of it and the prosecution can show the fact of complaint to forestall the assumption that none was made.

Further, under People v. Bunton, supra, only the name of the alleged perpetrator and the general nature of the allegations (child molest) are admissible and not the details.  Further, the defense is entitled to a limiting instruction that the statement is not introduced for the truth of the matter asserted.

All prosecution witnesses testifying to a “fresh complaint” should be instructed by the Prosecutor that his or her testimony is limited to (a) name of alleged victim; (b) name of alleged perpetrator; (3) date or time of the “fresh” act; (4) that the allegation was of molestation but give no details.  Complaints made in response to questions are not “fresh complaints.”

Dated:                

Respectfully submitted,

___________________________

[ATTORNEY NAME]

Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

PLEASE TAKE NOTICE that on [DATE] at [TIME] or as soon thereafter as the matter may be heard, and in the above-designated department, [NAME OF DEFENDANT] (“Defendant”) will move this court for an order to exclude evidence based upon improper search and seizure.

Dated: [DATE]

__________________________

[Attorney Name], 

Attorney for Defendant

POINTS AND AUTHORITIES IN SUPPORT OF BAIL REDUCTION

• FACTUAL BACKGROUND

1. Introduction

Defendant is charged with:

• Count 1:  [INSERT CHARGES]

[INSERT FACTUIAL INFORMAITON]

• THE WARRANT WAS INSUFFICENT ON ITS FACE. 

Pen C § 1538.5. (a) (1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable or (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face.

In the present matter, the warrant was insufficient on its face as it lacked a proper signature. 

• THE PROSECUTION BEARS THE BURDEN OF JUSTIFYING THE WARRANTLESS ACTIONS OF THE POLICE OFFICERS.

When a person questions the lawfulness of a search or seizure, a prima facie case is established when it is shown that the search was undertaken without a warrant, and the burden then shifts to the prosecution to show justification for the search. Badillo v. Superior Court, (1956) 46 Cal.2d 269, 272.

Once a person produces evidence to show the seizure was without a warrant, the prosecution bears the burden of proving the justification for the warrantless seizure. Wimberly v. Superior Court,(1976) 16 Cal.3d 557, 563, fn. 2; People v. Sedillo, (1982) 135 Cal.App.3d 616, 623; Wilder v. Superior court, (1979) 92 Cal.App.3d 90, 96. People v. Harvey, 156 Cal. App. 2d 516 (1958) and People v. Madden, 2 Cal. 3d 1017 (1970) require the Prosecution to bring forth witnesses when necessary to establish the basis for the conduct.  Here the prosecution would necessarily have to justify the conduct by the Redwood City Police Department on September 9, 2019, as there were no other valid grounds for entry into the garage. 

• ANY AND ALL EVIDENCE OBTAINED AS FRUITS OF THE WARRANTLESS SEARCH AND/OR SEIZURE MUST BE SUPPRESSED.

If the challenged police conduct is shown to be violative of the Fourth Amendment, the exclusionary rule requires that all evidence obtained as a result of such conduct be suppressed.  Such evidence includes not only what was seized in the course of the unlawful conduct itself – the so-called ‘primary’ evidence but also what was subsequently obtained through the information gained by the police in the course of such conduct – the so-called ‘derivative’ or ‘secondary’ evidence. Once the challenged police conduct is shown to be unlawful, the primary evidence is automatically subject to suppression.  Secondary evidence, by contrast, is excluded only if it is ‘tainted’ by the unlawful conduct. (People v. Williams, 45 Cal.3d 1268 (1988)). 

In the case at hand, there were warrantless detentions and searches, pursuant to the Fourth Amendment, outside any recognized exception. 

• CONCLUSION

The Defendant respectfully asks the Court to grant the Motion for Suppress pursuant to Penal Code Section 1538.5.

Dated: [DATE]

__________________________

[Attorney Name], 

Attorney for Defendant

DECLARATION OF [ATTORNEY’S NAME]

I, [ATTORNEY’S NAME] declare:

1. I am an attorney duly licensed to practice law in the State of California. I am a Certified Criminal Law Specialist. I am the attorney for the defendant in this matter. This matter is set for trial on April 13, 2020.
2. I represent [NAME OF DEFENDANT] (“Defendant”) who is accused of 

I declare the above under penalty of perjury except as to those matters based upon information and belief and as to those matters, I believe them to be true.  

Executed in Pleasant Hill, CA on January 26, 2024.