ROBERT C. BAKER, ESQ., BAR ID #49255
MELISSA S. BLUESTEIN, ESQ., BAR ID #130055
PHILLIP A. BAKER, ESQ., BAR ID #169571
BAKER, SILBERBERG & KEENER
2850 Ocean Park Boulevard, Suite 300
Santa Monica, California 90405
Telephone: (310) 399-0900
ROBERT D. BLASTER, ESQ., BAR ID #47480
6622 Benham Way
Sacramento, California 95831-1143
Telephone: (916) 427-1600
F. LEE BAILEY, ESQ.
DANIEL P. LEONARD, ESQ.
BAILEY, FISHMAN AND LEONARD
66 Long Wharf
Boston, Massachusetts 02110
Telephone: (407) 687-3700
Attorneys for Defendant ORENTHAL JAMES SIMPSON
SUPERIOR COURT FOR THE STATE OF CALIFORNIA IN THE COUNTY OF LOS ANGELES
SHARON RUFO,
Plaintiff,
vs.
ORENTHAL JAMES SIMPSON, et al.,
Defendants.
FREDRIC GOLDMAN, etc., et al.,
Plaintiffs,
vs.
ORENTHAL JAMES SIMPSON, et al.,
Defendants.
Case No. SC 031947;
C/W Case No. SC 036340;
C/W Case No. SC 036376
MOTION IN LIMINE TO PRECLUDE ANY AND ALL REFERENCE TO ANY OUT-OF-COURT STATEMENTS CONTAINED IN POLICE REPORTS
[9 of 15]
TRIAL DATE: Sept. 17, 1996
TIME: 9:00 a.m.
DEPT: "L"
LOUIS H. BROWN, etc.,
Plaintiff.
vs.
ORENTHAL JAMES SIMPSON,
Defendant.
DISCOVERY AND MOTION CUT-OFF: 6/15/96
TRIAL DATE: 9/17/96
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
Defendant, ORENTHAL JAMES SIMPSON, hereby moves this Court for an Order instructing plaintiffs and plaintiffs' counsel not to refer to any out-of-court statements contained in Police Reports.
This Motion will be further based upon the Memorandum of Points and Authorities attached hereto, on the papers and records on file herein, and on such oral and documentary evidence as may be presented at the hearing of this Motion.
DATED: August 20, 1996
BAKER, SILBERBERG 8 KEENER
By /s/
ROBERT C. BAKER
Attorneys for Defendant
ORENTHAL JAMES SIMPSON
MEMORANDUM OF POINTS AND AUTHORITIES
1. INTRODUCTION.
The plaintiffs may attempt to introduce police documents purportedly reporting statements made by Brown or others relating to Simpson. Brown's statements to the police, even if contained within an official police report, or a letter such as that authored by Detective Mark Fuhrman four years after the events purportedly being described, are hearsay and are inadmissible.
2. ANY OUT-OF-COURT STATEMENTS CONTAINED IN POLICE REPORTS ARE INADMISSIBLE HEARSAY.
Police reports may qualify as an exception to the hearsay rule pursuant to Section 1280 of the Evidence Code,1/ provided certain foundational requirements are met. Statements made by others to a police officer included within a police report constitute hearsay within hearsay and are not covered by "official records" exception to the hearsay rule.2/ This is because an "official record" is admissible only if the "sources of information and method of time of preparation were such as to indicate its trustworthiness." California Evidence Code, Section 1280(c). Police officers reporting their own observations pursuant to an official duty to make accurate statements are presumed to be reliable. But, as the California Courts have repeatedly recognized, statements made by others to police officers are often made with ulterior motives and lack of guarantee of trustworthiness.3/
In People v. Baeske (1976) 58 Cal.App.3d 775, 130 Cal.Rptr. 35, for example, the court affirmed a lower court's exclusion of a police report that contained the statement of a witness to the crime since information was provided by a citizen who had no particular duty to report accurately on the facts observed. As the court explained, "the trustworthiness requirement for this exception to the hearsay rule is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly". Id. at 780. See also, Jackson v. Department of Motor Vehicles (1994) 22 Cal.App.4th 730, 736, 27 Cal.Rptr. 2d 712 (Section 1280) which authorizes the introduction of only such portion of police records that report the police officer's "firsthand observations"); People v. De La Plane (1979) 88 Cal.App.3d 223,151 Cal.Rptr. 843 (police tape recordings admissible to prove time calls were made but not to prove truth of the statements made by citizens making the calls, including identification of defendant).
Statements made by Brown to police officers are not admissible pursuant to Section 1280 simply because they may be contained in a document that could be introduced into evidence were it to contain observations made by a police officer during the course of his official duties. Consequently, those statements can only be admitted if they fall within another recognized exception to the hearsay rule. Clearly, they do not.
Any statement Brown may have made to the police expressing purported fear of Simpson or reporting that he had threatened her in some fashion is not admissible pursuant to Section 1250 as evidence of Brown's state of mind since her state of mind is not an issue in this action.
Nor are such statements admissible as so-called "spontaneous statements" pursuant to Section 1240. For a statement to be admitted pursuant to this section it must describe an event or explain an act or condition perceived by the declarant and "must be made spontaneously, while the declarant is under the stress of the excitement caused by the perception". People v. Farmer (1989) 47 Cal.3d 888, 900, 765 P.2d at 949, 254 Cal.Rptr. at 517.[4/] It is presumed to be trustworthy because it is made while the declarant is under the stress of nervous excitement and before he has had time to reflect or contrive. Id.
While there is no set time limit within which a so-called "spontaneous statement" must be made, the courts have allowed in statements made after the triggering event only when the declarant has suffered serious trauma and is plainly in substantial pain or shock. Under such circumstances, the victim is not likely to have had the wherewithal to manufacture a false statement. See. e.a., People v. Raley (1992) 2 Cal.4th 870, 830 P.2d 712, 8 Cal.Rptr. 2d 678 (although statement was made 18 hours after sexual assault, victim had been left bleeding, had suffered traumatic head injury, had been unconscious, and was close to death); People v. Farmer, supra, (statements by shooting victim, bleeding and in obvious pain, responding to police questioning); People v. Poggi, supra, (statement by stabbing victim bleeding profusely from ultimately fatal wounds 30 minutes after attack); People v. Washington (1969) 71 Cal.2d 1170, 459 P.2d 259, 81 Cal.Rptr. 5 (statement by victim of robbery and assault in hospital about 45 minutes after attack during which time the victim lapsed in and out of consciousness).
Moreover, even if an out-of-court statement is made spontaneously and while the witness is under the stress of excitement, portions of the statement may be excludable if they constitute inadmissible opinion testimony by the declarant. For example, in People v. Miron (1989) 210 Cal.App.3d 580, 258 Cal.Rptr. 494, a witness testified that his employee had called him shortly after a shooting screaming about what had happened and repeating, "He was trying to kill us". The court held that the employee's observations were admissible as spontaneous statements but that the trial court had properly excluded the portion of her statement attributing to the intruder a motive to kill. As the court explained, the employee's conclusion that the man was trying to kill them was an opinion that would have been excludable because testified to by another since "the spontaneous statement exception to the hearsay rule cannot be used to bootstrap admissibility". 210 Cal.App.3d at 584, 258 Cal.Rptr. at 495.
The statements given by Brown to the police after the October 25, 1993 incident were not "spontaneous". As the reports indicate, Simpson was visiting Brown at her home earlier in the evening and they began to argue about photographs each one had of individuals with whom they had apparently been romantically involved. Simpson left and telephoned Brown. When she would not take his calls, he resumed to Brown's home, and when she refused him entry, he allegedly kicked in the door. Brown was unharmed.
This incident is radically different from those where the courts have permitted statements to be introduced that were made after the so-called stressful event. Brown was not injured nor in shock. By the time the police responded to Brown's 911 call and took her statement, she had ample time to reflect on what she wanted to say. Her statements to the police were not made impulsively while under the stress of a highly traumatic event and bear no indicia of trustworthiness.
Finally, the same reasoning applies to statements made by Brown to the police concerning the incident that took place on New Year's Eve, 1989. Brown and Simpson apparently had been drinking heavily that evening, which makes presumptively unreliable anything either party said later that night. The police arrived after the incident. Brown was upset when she spoke with them, but her physical injuries were minor. Brown's alleged accusation that Simpson was "going to kill her" is inadmissible opinion testimony that, as the Miron court made clear, cannot be bootstrapped into admissible evidence through the spontaneous statement exception to the hearsay rule. Further, there is no indication that any of Brown's other statements to the police were blurted out spontaneously; rather, she was responding to questioning and she certainly was not so traumatized, or in such physical distress, that she was unable to reflect on the statements that she made.
3. CONCLUSION.
Based on the foregoing, it is respectfully requested that this Court preclude any and all references by plaintiffs and/or plaintiffs' Attorneys regarding any out-of-court statements contained in Police Reports as they are irrelevant hearsay.
DATED: August 20, 1996
BAKER, SILBERBERG & KEENER
By /s/
ROBERT C. BAKER
Attorneys for Defendant
ORENTHAL JAMES SIMPSON
ENDNOTES
1/ Section 1280, the hearsay exception for a "record by [a] public employee" provides as follows:
Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if
(a) The writing was made by and within the scope of duty of a public employee;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.
2/ Section 1201 of the Evidence Code, addressing "multiple hearsay" recognizes that hearsay statements contained within hearsay statements must "meet the requirements of an exception to the hearsay rule.
3/ For the same reason, police reports are not admissible under the "business records" exception to the hearsay rule, California Evidence Code, Section 1271, to the extent they
include narrations by persons under no business duty to report to the police.
4/ "(1) [T]here must be some occurrence startling enough to produce...nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, e.g., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." People v. Poggi (1988) 45 Cal.2d 306, 318, 253 P.2d 1082, 246 Cal.Rptr. 886.