PHYLLIS MORRIS
Public Defender
255 N. D Street, Suite 200
San Bernardino, CA 92415-0031
(909) 383-2418
FAX (909) 388-4207
By:XXXXXXXX
State Bar No. 254055
Deputy Public Defender
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO
PEOPLE OF THE STATE OF CALIFORNIAPetitioner
vs.
XXXXXXXX
Respondent
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RESPONDENT MOTION IN LIMINE No.:
MOTION IN LIMINE TO LIMIT CUMULATIVE EXPERT TESTIMONY
DATE: August 4, 2014
TIME: 8:30 a.m.
DEPT: S-10
Petitioner has indicated that they will call two expert witnesses to testify to the same subject matter, opinions and issues in this case. Attached hereto as Exhibit 1 is Petitioner’s Response to Demand for Exchange of Expert Witness Information. Petitioner has listed two (2) expert witnesses;Eric Simon, Ph.D. and Preston Sims, Ph.D.that Petitioner intends to call at trial.In the required Expert Declaration accompanying the Expert List, Petitioner has indicated, pursuant to Code of Civil Procedure § 2034.260, that the general substance of the anticipated trial testimony of both experts will be that they: “will address the issues comprehended by Welfare & Institutions Code § 6600 et. seq., and he will testify that Respondent meets all of the criteria set forth therein to qualify as a sexually violent predator…”According to the declaration, the anticipated testimony of both experts will be virtually identical.
Specifically, both experts have opined in their repetitive reports that XXXXXX has been convicted of the same sexually violent offenses and their reports describe those offenses in an almost identical manner. Both experts have given him an identical Axis I diagnoses (Pedophilia and Substance Dependence) citing virtually the samebases for those diagnoses. They do differ on the presence of an Axis II diagnosis (one indicates deferred and the other Personality Disorder, NOS) and both have opined that he has the statutory diagnosis (serious difficulty in controlling behavior) based upon identical facts and reasoning. Finally, both experts have opined that he meets criterion three (likely to reoffend) utilizing the same score on the (Static-99R), the same score on the 2002R and also cite almost identical ’dynamic’ factors as supporting that opinion.The substance of their reports is virtually identical (format and wording may differ in minor ways) and their testimony will be the same.
THE COURT HAS THE POWER TO LIMIT EXPERT TESTIMONY
Evidence Code § 723 provides that the court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party. In People v. Dean (2009) 174 Cal.App.4th 186 (4TH Appellate District) Respondent contended that the practice of Riverside County in appointing only one SVP defense expert while the state had two experts violated his due process rights. In denying the claim, the Appellate Court noted:
Defendant submits, as he did at trial, that“‘the SVP Law stacks the deck against the indigent respondent by providing the district attorney with aminimum of two expert witnesses and only providing the indigent respondent with one.’” Initially, we believe that defendant's underlying premise is faulty. There is nothing in the SVP law that mandates that the plaintiff be allowed to call two or more experts to testify.Section 6601deals with prerelease evaluations by the Department of Mental Health, requests by the Department of Mental Health to file petitions for commitment, and the filing of petitions by the district attorney or county counsel. Section 6601, subdivision (d) mandates that before the Department of Mental Health may request the filing of a petition, two evaluators must concur that the defendant meets the criteria of an SVP. The law does not require the prosecutor to plead and/or prove to a trier of fact that two evaluators agree.
(emphasis added).People v Dean, supra, pp. 202-203.
The Dean Court further noted that in People v. Scott (2002) 100 Cal.App. 4th 1060, the Court there held that there was no requirement of two experts testifying at an SVP trial for the Petitioner:
[A]lthough there must be two concurring experts as a procedural prerequisite to commencement of the petition process (§ 6601, subds. (c), (d)) the [SVPA] does not expressly require two experts to testify at trial on behalf of the People.” (Id. at pp. 1063–1064).
The Court in Dean then noted:
Here, plaintiff called two experts. From the record, the testimony of Drs. Goldberg and Starr appears to have been cumulative. At trial, defendant filed a nine-page points and authorities titled “Motion to Dismiss,” dealing with a number of alleged constitutional infirmities of the SVPA. At no time did defendant raise the evidentiary objection that plaintiff should be limited to one expert based on the cumulative nature of the experts' testimony. As provided in Evidence Code section 723 “[t]he court may, at any time before or during the trial of an action, limit the numberof expert witnesses to be called by any party.” This rule was discussed in South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861. “On this record, the trial court acted within its discretion in excluding [the second expert witness's] testimony as cumulative. As the court properly observed, South Bay's designation of expert witnesses indicated the scope of [the second expert witness's] anticipated testimony was a ‘duplicate’ of the subject matter covered by [the first expert witness]. Further, South Bay's counsel acknowledged that ‘there's a substantial overlap’ in the two experts' testimony and that [the second expert's] testimony would be covering ground already covered by [the first expert witness].” (Id. at p. 906; see also Redondo Beach School Dist. v. Flodine (1957) 153 Cal.App.2d 437, 449 [“The court in its discretion may limit the number of witnesses who may be called upon to testify with reference to a single question, as here, and the court can refuse to
receive evidence which is purely cumulative.”].) (emphasis added).
Dean, supra, p. 203-204.
Numerous cases have held that the evaluation process requiring two concurring opinions in order to file a SVP petition is separate from a disposition on the merits.
As the court in Hubbart v. Superior Court noted, once the petition is filed a new round of proceedings is triggered. (Citation omitted)After the petition is filed, rather than demonstrating the existence of the twoevaluations, the People are required to show the more essential fact that the alleged SVP is a person likely to engage in sexually violent predatory criminal behavior. (Ibid.) In short, like many other matters subject to the principles governing pleas in abatement, the requirement for evaluations is not one affecting disposition of the merits; rather, it is a collateral procedural condition plainly designed to ensure that SVP proceedings are initiated only when there is a substantial factual basis for doing so.
People v. Superior Court (Preciado) (2001) 87 Cal. App. 4th 1122, 1130.(Once petition filed, it triggers a new round of proceedings where issue is whether person meets SVP criteria, In re Wright (2005) 128 Cal. App. 4th 663, 670; People v. Medina (2009) 171 Cal. App. 4th 805, 814: once a petition is filed, “[t]he legal determination that a particular person is an SVP is made during the subsequent judicial proceedings, rather than during the screening process).
Just as in Dean, the two experts in this case (Simon and Sims) will testify to the same subject matter, offer the same opinions and give the same rationale for their opinions. Their testimony will be cumulative.
Furthermore, the jury will be specifically instructed: “Do not make any decision simply because there were more witnesses on one side than on the other. If you believe it is true, the testimony of a single witness is enough toprove a fact.” (Judicial Council of Cal. Civ. Jury Instns. (2008) CACI No. 107). After all, it is the weight and believability of the witness testimony that matters, not the number of witnesses.
THE EXPERT TESTIMONY IN THIS CASE SHOULD BE LIMITED UNDER EVIDENCE CODE § 352
Evidence Code section 352 allows the trial court to exclude even relevant evidence if its probative value is outweighed by other factors. Among them is the risk that admission will necessitate undue consumption of time. Cumulative evidence is excludable on this basis. As this court knows, the expert testimony in these cases take considerable time and the court will see that it will be even more so in this case. Having two State experts cumulatively testify will unnecessarily take up court and personnel time and resources.
Petitioner will undoubtedly assert that since they have the burden of proof, they are entitled to two experts. However, as noted in People v. Williams (2009) 170 Cal.App. 4th 587 at 610-611:
We strongly disagree with the view that prosecutors have any right to “over-prove their case or put on all the evidence that they have.” In our view, the trial court and the prosecutor must also be mindful of the burden on the court system and on the jurors who are required to disrupt their lives for the duration of the trial. In other contexts, courts have recognized the trial court's duty to consider the burden on jurors and the court itself in, for example, determining whether to grant a continuance. (E.g., People v. Fudge (1994) 7 Cal.4th 1075, 1105–110.) In short, the state has a strong interest in prompt and efficient trials, and that interestpermits the nonarbitrary exclusion of evidence, including “when the presentation of the evidence will ‘necessitate undue consumption of time.’” (Maricela C. v. Superior Court (1998) 66 Cal.App.4th 1138, 1146–1147.) Accordingly, neither the prosecution nor the defendant has a right to present cumulative evidence that creates a substantial danger of undue prejudice (People v. Maestas (1993) 20 Cal.App.4th 1482, 1494–1495) or that unduly consumes the court's time (People v. Milner (1988) 45 Cal.3d 227, 239–240).
Just as in Dean, the testimony in this case of Korpi and Vognsen will be
cumulative andrepetitive. It will unnecessarily consume the court’s time and resources and the duplicative testimony is not necessary nor required under the SVPstatute nor case law.
If the court allows both experts to testify, their testimony should be circumscribed so that they are not testifying on identical issues. The trial court has discretion to refuse to admit cumulative evidence. (Evid. Code, §352; Horn v. General Motors Corp.(1976) 17 Cal. 3rd 359, 371). The experts differ on the presence of an Axis II diagnosis but the diagnosis and basis for the Axis I diagnosis is identical and would be cumulative and should be circumscribed.
Therefore, Respondent requests this court limit the Petitioner herein to the testimony of one state expert on the issue of whether Mr. Asher meets the SVP criteria..
Dated: September 27, 2013 Respectfully Submitted:
PHYLLIS MORRIS,
Public Defender
By:______
XXXXXXXXXXXX
Deputy Public Defender
1MOTION IN LIMINE TO EXCLUDE CUMULATIVE EXPERT TESTIMONY