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. BLASIER, 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 CHARACTERIZATION OF INCIDENTS AS "BATTERING" OR "STALKING" AND TO PRECLUDE THE UTILIZATION OF PROFILE WITNESSES
[4 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 CUTOFF: 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 or characterize incidents as "battering" or "stalking" and to preclude the utilization of profile witnesses.
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 & KEENER
By /s/
ROBERT C. BAKER
Attorneys for Defendant
ORENTHAL JAMES SIMPSON
MEMORANDUM OF POINTS AND AUTHORITIES
1. THE USE OF SUCH TERMS AS "BATTERER" OR "STALKER" IS PREJUDICIAL AND HAS NO PROBATIVE VALUE.
Apart from the danger of prejudice and confusion arising from the introduction of the alleged incidents of domestic discord between defendant and Nicole Brown Simpson, is the question of how those incidents are characterized in presentation before the jury. The defendant will strenuously object to any characterization of Nicole Brown Simpson as a "battered wife", or any description of incidents as "spousal abuse" or "stalker" when referring to the defendant. These terms have acquired a strong secondary meaning which itself will have a dramatic prejudicial impact. Even if these isolated and widely separated incidents are admitted, they do not establish any sort of pattern of conduct. The use of prejudicial and misleading terminology to inflame a jury has achieved greater judicial scrutiny in an era when media "spin" attaches a great deal of inflammatory baggage to catch phrases. Hence, pursuant to California Evidence Code, Section 352, defendant moves this Court to preclude the utilization of such terms.
2. THE USE OF "PROFILE" WITNESSES IS BOTH IMPROPER AND ULTIMATELY UNSCIENTIFIC AND SHOULD THEREFORE BE PRECLUDED.
It is anticipated that the plaintiffs will attempt to call Donald Dutton, Ph.D. and Park Dietz, M.D. to opine that the killing of Nicole Brown Simpson was a "spousal homicide" and that the defendant was a "batterer" and-a "stalker".1/ Essentially, Dutton, a psychologist, and Dietz, a forensic psychologist, reach their opinions by "profiling" the defendant. Profiling involves the process of examining the circumstances of the killings, the relationship between the victim and alleged perpetrator, and comparing that scenario to other murders, victims and perpetrators. In theory, the object of this exercise is to see if the facts and circumstances fit the pattern or "profile" of a particular type of killing or killer. Profiling is used exclusively by law enforcement to assist in the investigation of unsolved crimes and has never been admitted by courts as evidence of the guilt of the defendant. A cursory examination of the deposition testimony of Dr. Dutton, shows this type of unreliable theorizing has no place in the courtroom. Dutton testified that Nicole Brown Simpson's murder was a "spousal homicide" because his review of police reports, statement of witnesses, and interviews with witnesses reveal that there was a history of the defendant abusing Nicole Brown Simpson. Dutton opined that the defendant had exhibited jealousy, that the weapon used was a knife, that the murders occurred at victim's home, that there were multiple wounds on the victims, and that the defendant and Nicole Brown Simpson had been recently estranged. Dutton conceded that there was no evidence of physical abuse after January 1, 1989, and that much of the information relative to prior instances of abuse were uncorroborated hearsay which he could not rely on or would not place much weight on. Dutton also acknowledged that regarding the two occasions of alleged physical abuse, which was witnessed by more than one third party, he chose to ignore the witness who denied any abuse.
Dutton also conceded that the use of the knife, multiple wounds, and the location of the killings were consistent with a non-spousal homicide. Significantly, Dutton testified that studies demonstrate that only 01 percent of batterers go on to kill their wives.
Finally, and most importantly, Dutton admitted that the process he used to reach his opinion was not subject to any standards, and that there was no way to measure the accuracy of his findings.2/ He testified that he was sure of his opinion based on a "hunch". (Defendant does not have a final version of Dr. Dietz' deposition at the time of the writing of this Motion and will provide such at the Court's request.)
This type of pseudo-scientific analysis whose accuracy is based on the practitioner's unverifiable and untested "hunch", does not come close to satisfy the stated requirements outlined in People v. Kelly [Kelly-Frye] (1976)17 Cal.3d 24 and their progeny. A scientific technique utilized by an expert witness must "be sufficiently established to have gained general acceptance in the particular field in which it belongs". Id. Courts in California and other jurisdictions have recognized this and consistently ruled that this type of expert opinion is inadmissible. For example, in People v. Bowler 203 Cal.App.3d 385, the court held that the reliance on an expert's opinion that a child had been sexually molested, became the victim and the circumstances fit the pattern of "Child Sexual Abuse Accommodation Syndrome -CSAAS" was in error. Id. at 393. Relying on the California Supreme Court's decision in People v. Bledsoe (1984) 36 Cal.3d 236, the court in Bowler concluded that it was improper to use evidence of CSAAS "as predictor of child abuse". Id. at 393. The court went on to point out that:
"While the impropriety in [the admission of this type of evidence] is clearest where the expert's testimony applies the CSAAS theory to the facts of the case and concludes that the victim was molested, it is also present where the expert gives 'general' testimony describing the components of the syndrome 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. In fact, there may be more danger where the application is left for the jury because juror's education and training may not have sensitized them to the dangers of drawing predictive conclusions." Id.
The risk that the jury will be unduly influenced and unable to independently evaluate the expert's opinion is greatly enhanced with this type of analysis because it is not "sufficiently susceptible to adequate cross-examination" as it is based on the expert's interpretation of non-standardized data. State v. Cavaliere, 140 N.H. 108, 633 A.2d 96, 100 (S.Ct. N.H. 1995).3/
In summary, the testimony of Dr. Dietz and Dr. Dutton and any argument or inference to the defendant as a "batterer" or "stalker", or to the killing of Nicole Brown Simpson as a "spousal homicide" is patently improper and inadmissible and will unduly prejudice the defendant.
3. CONCLUSION.
Based on the foregoing, it is respectfully requested that this Court preclude any and all references by plaintiffs and/or plaintiffs' Attorneys from the characterization of incidents as "battering" or "stalking" and to preclude the utilization of profile witnesses.
DATED: August 20, 1996
BAKER, SILBERBERG & KEENER
By /s/
ROBERT C. BAKER
Attorneys for Defendant
ORENTHAL JAMES SIMPSON
ENDNOTES
1/ As of this writing, the defendant has not yet deposed Dr. Dietz.
2/ Dutton said that the only attempt he made to evaluate the accuracy of his opinions was to speak informally with some his colleagues, who had "heard" about the Simpson case. He admitted that this was not a scientifically accepted method of verification.
3/ In Cavaliere, the New Hampshire Supreme Court was examining the admissibility of psychological expert testimony as to a sexual offender profile:
"This (is) so because the experts opinion depended not on any one indicator or symptom, but rather on her interpretation of all the factors and information before her...An expert using this methodology may candidly acknowledge any inconsistencies or potential shortcomings in the individual pieces of evidence she presents, but can easily dismiss the critique by saying that her evaluation relies on no one symptom or indicator and that her conclusions still hold true in light of all the other available factors and her expertise in the field. Id., at 100.
See also, State v. Michaels 264 N.J. Super. 579, 625 A2d 489 (Ct.App. Div. 1993); aff'd. 136 N.J. 299, 642 A2d 1372 (1994) (Expert testimony as to abused child profile inadmissible); State v. Parkinson 909 P.2d 647, 652 (Idaho Sup. Ct. 1996) (Expert testimony as to sex offender profile inadmissible); State v. Bolin, 922 S.W. 2d 870 (Sup.Ct Tenn. 1996) (Expert testimony as to child sexual abuse syndrome inadmissible); People v. Walkey (1986) 223 Cal.Rptr. 132 177 Cal.App.3d 268; 278 (Expert testimony as to battering parent profile inadmissible).