Public Defender

JEFF ADACHI

Public Defender

MATT GONZALEZ

Chief Attorney

REBECCA S. YOUNG

SBN 121179

Deputy Public Defenders

555 7th Street

San Francisco, CA 94103

(415) 553-9300

Attorneys for Defendant

JOE DEFENDANT

SUPERIOR COURT OF THE STATE OF CALIFORNIA

CITY AND COUNTY OF SAN FRANCISCO

PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
JOE DEFENDANT,
Defendant. / MCN.
SCN:
DATE: , 2016
TIME: 9:00 AM
DEPT:
In Limine Motion to Examine Video Evidence for Authentication

TO: THE HONORABLE , JUDGE PRESIDING AND TO , DEPUTY DISTRICT ATTORNEY, CITY AND COUNTY OF SAN FRANCISCO:

As a prophylactic measure, the defense asks the Court to order the prosecution to omit reference, in its opening statement or voir dire, to the video surveillance evidence it seeks to admit at trial as being a “full and complete interaction” between defendant and the complaining witness.

POINTS AND AUTHORITIES

Statement of the Facts

The district attorney provided in discovery a clip taken from a surveillance video situated inside a store window and which looked out to the street where defendant and the complaining witness had the interaction which led to the underlying charges against defendant.

During a pretrial discussion with the presiding judge, the district attorney represented that she would be using a surveillance video from the store to show the “full and complete interaction” between defendant and the complaining witness. However, the district attorney cannot lay the proper foundation such that she may make this assertion during voir dire and/or opening statement. To misrepresent the video surveillance evidence without laying the proper foundation for admissibility would inflect the trial with potentially false and thus unnecessarily prejudicial information, and suggests to the jury that the video film is the totality of the interaction, when in fact, it is only that portion of the video retrieved by the police. This is improper and would cause substantial prejudice to defendant’s right to a fair trial.

Argument

In order to lay the proper foundation for video evidence, the party seeking to introduce the video must show that it is accurate and authentic. See Evidence Code §§ 250, 1401, 1410-1421. To properly lay the foundation, “it is necessary to know when [the video] was taken and that it is accurate and truly represents what it purports to show. People v. Bowley (1963) 59 Cal.2d 855, 862. A video recording “may be authenticated by testimony or other evidence” that it is accurately depicting what it claims to be showing. Id. at 859. Thus, the district attorney may not misrepresent that the video surveillance clip she intends to use at trial accurately depicts the “full and complete interaction” between defendant and the complaining witness without laying the proper foundation.

A party must not deliberately misrepresent the evidence/the truth. See Miller v. Pate, 386 U.S. 1, 6 (1967) (overturning ∆’s conviction where the prosecution deliberately misrepresented at trial that stained shorts were blood-stained when he knew they were paint-stained). “That a prosecutor's knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process is well established.” People v. Sakarias (2000) 22 Cal. 4th 596, 633.

In regulating the scope of . . . argument, . . . [t]he court should exclude only those statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury. United States v. DeLoach (D.C. Cir. 1974) 504 F.2d 185, 189. (two unpublished CA decisions cite this D.C. Circuit case)

Therefore, counsel respectfully requests the court hold a 402 hearing to inquire into authentication of the surveillance video evidence the prosecution intends to use at trial.

Dated: RESPECTFULLY SUBMITTED

______

REBECCA S. YOUNG

Attorney for Defendant

JOE DEFENDANT

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