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 OUT-OF- COURT STATEMENTS CONCERNING DEFENDANTS CONDUCT AND RELATIONSHIP WITH NICOLE BROWN SIMPSON
[10 of 15]
TRIAL DATE: Sept 17,1996
TIME: 9:00 a.m.
DEPT: "L"
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 out-of-court statements concerning defendant's conduct and relationship with Nicole Brown Simpson as they are inadmissible hearsay.
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. OUT-OF-COURT STATEMENTS CONCERNING DEFENDANTS CONDUCT AND RELATIONSHIP WITH NICOLE BROWN SIMPSON ARE INADMISSIBLE HEARSAY.
Even if this Court were to determine that evidence of Mr. Simpson's alleged domestic discord with Nicole Brown Simpson is relevant and that its probative value outweighs its prejudicial impact, the Court must still examine each item of proffered evidence to determine whether it is admissible under California's rule against hearsay evidence.
We anticipate that entire categories of evidence that will be offered by the plaintiffs constitute hearsay1/ including writings which purport to be a diary or journal entries made by Nicole Brown Simpson. People v. Livaditis (1992) 2 Cal.4th 759, 831 P.2d 297, 9 Cal.Rptr.2d 721. See also, California Evidence Code, Section 403 and 405.
2. ANY ALLEGED OUT-OF-COURT STATEMENTS BY NICOLE BROWN SIMPSON TO FRIENDS OR FAMILY EXPRESSING FEAR OF DEFENDANT, ARE INADMISSIBLE HEARSAY.
The plaintiffs may attempt to introduce out-of-court statements allegedly made by Nicole Brown Simpson to friends or family members expressing fear of the defendant, or asserting that the defendant had followed, mistreated or threatened her in some fashion. Any such evidence is hearsay and cannot be admitted at Trial since it does not fall within one of California's specific statutory exceptions to the hearsay rule.
Nicole Brown Simpson's out-of-court comments to others concerning her feeling about defendant might be probative of her state of mind. But Nicole Brown Simpson's state of mind is not an issue in this case, and evidence of a declarants state of mind is "itself an issue in the action" or is "offered to prove or explain acts or conduct of the declarant". Cal. Evidence Code, Section 1250(a)(1) and (2).2 Consequently, since neither Brown's state of mind, nor her conduct preceding the murder, is of any relevance, her out-of-court statements cannot be introduced pursuant to the "state of mind" exception to the hearsay rule.
The California Supreme Court has made it crystal clear that hearsay statements by a victim expressing fear of the defendant or relating threats of physical harm are not admissible to provide that the defendant, in fact, threatened the victim, and cannot be rendered admissible under the guise of "state of mind" evidence unless the victim's state of mind or his conduct preceding the crime is an actual issue in dispute. See. e.a., People v. Arcega (1982) 32 Cal.3d 504, 651 P.2d 338, 186 Cal.Rptr. 94 (error to admit testimony by victim's mother that victim has told her shortly before the murder that defendant was following her around and treating her "weird", and was going to "hurt her" or "beat her up"); People v. Ireland (1969) 70 Cal.2d 522, 450 P.2d 580, 75 Cal.Rptr. 188 (error to admit statement by victim on the morning she was killed that her husband was going to kill her); People v. Armendariz (1984) 37 Cal.3d 573, 693 P.2d 243, 209 Cal.Rptr.644; People v. Ruiz (1988) 44 Cal.3d 589, 729 P.2d 854, 244 Cal.Rptr. 200; People v. Noguera (1992) 4 Cal.4th 599, 842 P.2d 1160, 15 Cal.Rptr. 400.
Evidence that Brown told people, including statements in written form, that she was fearful of Simpson, or that he had beaten her, or that he had followed her, is classic hearsay if introduced to prove that Simpson, in fact, committed these acts, or in fact, threatened Brown with physical harm. It presents all the "traditional hearsay dangers", since Brown's memory, perception and sincerity cannot be tested. Moreover, since Brown's state of mind is not an issue in this case, testimony purporting to relate Brown's out-of-court statements cannot be admitted pursuant to the "state of mind" exception to the hearsay rule. The evidence must be excluded.
3. ANY ALLEGED OUT-OF-COURT STATEMENTS CONCERNING DEFENDANT MADE BY NICOLE BROWN SIMPSON TO THERAPISTS OR PHYSICIANS ARE INADMISSIBLE HEARSAY.
Therapists like Dr. Susan Forward and Jennifer Ameli, have made public statements (in apparent violation of professional obligations of patient confidentiality) claiming that they served as therapists for Nicole Brown Simpson, and that Nicole confided in them that she was fearful of the defendant. Any such out-of-court statements, like those to friends or family, are hearsay and inadmissible.
People v. Bunyard (1988) 45 Cal.3d 1189, 756 P.2d 795, 249 Cal.Rptr. 7112, is dispositive. There, the trial court admitted the testimony of the victim's doctor that she had related that the defendant, her husband, had assaulted her, had threatened to kill her, and that she was frightened of him. This testimony was admitted as purported non-hearsay "history by a patient to a treating physician". The Supreme Court held that the statements were hearsay and should have been excluded.
The Court first reiterated that hearsay evidence is not rendered admissible "simply by identifying a non-hearsay purpose admitting the statement". 45 Cal.3d at 1204, 756 P.2d at 804, 249 Cal.Rptr. at 80. Rather, the trial court must find that the "non-hearsay purpose is relevant to an issue in dispute". Id. Since neither the victim's medical treatment nor her mental state were at issue in the case, the articulated non-hearsay purpose of the statements was irrelevant and could not justify their admission into evidence.
Moreover, the statements were not admissible as evidence of the cause of a physical condition. As the court explained, "While a statement pointing to the cause of a physical condition may be admissible if it is made by a patient to a physician, the statement must be necessary to proper diagnosis and treatment and is admissible only to show the basis of a medical opinion, not for the purpose of establishing the truth of the facts contained therein". Id. at 1250, n.4, 756 P.2d at 804, n.4, 294 Cal.Rptr. at 80, n.4 (emphasis added). Thus, the victim's statements to her doctor, even assuming they were relevant to his medical opinion and that his medial opinion was relevant to the case, could not be admitted to provide the fact asserted-that her husband beat her and threatened to kill her.
Indeed, the California Courts routinely hold that statements made to physicians allegedly relating the cause of an injury or the basis for a diagnosis are not admissible to prove the truth of the matter asserted, even under the guise of expert opinion. Johnson v. Aetna Life Ins. Co. (1963) 21 Cal.App.2d 247, 252, 34 Cal.Rptr. 484; In re: Cheryl (1984) 153 Cal.App.3d 1098, 200 Cal.Rptr. 789; People v. Young (1987) 189 Cal.App.3d 891, 234 Cal.Rptr. (psychiatric records relied upon by experts inadmissible hearsay).
Any statements made by Brown to a physician in connection with the 1989 New Year's Eve incident, or at any other time, that purport to relate the cause of any injuries are hearsay and cannot be admitted to prove the truth of the facts asserted. Moreover, Brown's state of mind is no more at issue in this case than was the victim's state of mind in Bunyard. Her diagnosis or treatment by a mental health professional is of no relevance and there is no conceivable ground for allowing her doctors to testify about those matters. Thus, any statements Brown may have made to a psychiatrist, psychologist or other therapist concerning the defendant, likewise constitute hearsay, whether related by a doctor on the stand or whether contained in a physician's report, and cannot be admitted into evidence since they do not qualify under any recognized exception to the hearsay rule.
5. CONCLUSION.
Based on the foregoing, it is respectfully requested that this Court preclude any and all references by plaintiffs and/or plaintiffs' attorneys of out-of-court statements concerning defendant's conduct and relationship with Nicole Brown Simpson as they are inadmissible hearsay.
DATED: August 20, 1996
BAKER, SILBERBERG & KEENER
By /s/
ROBERT C. BAKER
Attorneys for Defendant|
ORENTHAL JAMES SIMPSON
ENDNOTES
1/ "Hearsay evidence" is defined as "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to provide the truth of the matter stated." Cal. Evidence Code. Section 1200(a). "Except as otherwise provided by law, hearsay evidence is inadmissible. Cal. Evid. Code, Section 1200(b).
California, by statute, recognizes that even admissible hearsay raises constitutional concerns, Section 1204 of the Evidence Code provides:
A statement that is otherwise admissible as hearsay evidence is inadmissible against the defendant in a criminal action if the statement was made, either by the defendant or by another, under circumstances- that it is inadmissible against the defendant under the constitution of the United States or the State of California.
2/ Section 1250 of the Evidence Code, the hearsay exception for a statement of declarants then existing mental or physical state", provides as follows:
(a) Subject to section 1252, evidence of a statement of the declarants then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when;
(1) The evidence is offered to prove the declarants state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
(2) the evidence is offered to prove or explain acts or conduct of the declarant.
(b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.
Even when a statement appears to meet the requirements of Section 1250, it cannot be admitted if it is untrustworthy. Section 1252, entitled a "limitation on admissibility of statement of mental or physical state", provides that "evidence of a statement is inadmissible under this article if the statement was made under such circumstances as to indicate its lack of trustworthiness".
This limitation is intended to exclude statements "made with a motive to misrepresent or manufacture evidence". 1966 Law Rev. Comm. Comment. Plainly, statements made about one's relationships involve complex emotions and, as anyone who has ever been married knows, spouses often say things about one another and about their feelings towards their spouse that are just not the truth.