MITCHELL, SILBERBERG 8: KNUPP LLP
DANIEL M. PETROCELLI (State Bar No. 97802)
EDWARD M. MEDVENE (State Bar No. 32227)
THOMAS P. LAMBERT (State Bar No. 50952)
PETER B. GELBLUM (State Bar No. 102695)
11377 West Olympic Boulevard
Los Angeles, California 90064-1683
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
ORENTHAL JAMES SIMPSON, et al.,
FREDRIC GOLDMAN, etc. et al.,
ORENTHAL JAMES SIMPSON, et al.,
LOUIS H. BROWN, etc.,
ORENTHAL JAMES SIMPSON,
Case No. SC 031947
Case No. SC 036340
Case No. SC 036876
MOTION IN LIMINE OF PLAINTIFF FREDRIC GOLDMAN TO EXCLUDE EVIDENCE AND ARGUMENT REGARDING MARK FUHRMAN'S ALLEGED RACISM
Trial Date: September 17, 1996
GOLDMAN MOTION NO. 14
Plaintiff Fredric Goldman anticipates that defendant Orenthal James Simpson will attempt to introduce evidence or argument of alleged statements and past conduct of former LAPD Detective Mark Fuhrman that establishes his racial bias. Specifically, Simpson may attempt to introduce evidence that: (1) well over 10 years ago, Fuhrman allegedly made racially disparaging remarks in connection with a lawsuit against the City of Los Angeles for disability; (2) about 10 years ago, defense witness Kathleen Bell allegedly heard Fuhrman make racist comments; and (3) in taped interviews with Laura Hart McKinney relating to her development of fictional materials regarding the LAPD, Fuhrman used the word "nigger" and described certain supposed incidents of police misconduct. From this evidence, Simpson will argue that Fuhrman is a racist, and thus had a motive to plant the bloody glove found at Simpson's Rockingham estate in an alleged attempt to frame Simpson. The Court should exclude this evidence for two independent reasons: (1) because Simpson's theory that Fuhrman planted the bloody glove at Rockingham and blood in Simpson's Bronco is not based on admissible evidence and is thus improper, the evidence regarding racism is irrelevant; and (2) even if the Court allows Simpson to argue that Fuhrman planted evidence, the probative value of the evidence of racism is substantially outweighed by its tendency to prejudice the jury and unduly delay the trial.
Evidence Code Section" 350 provides that "[n]o evidence is admissible except relevant evidence." To be relevant, evidence must have a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." Cal. Evid. Code 210.By separate motions, Goldman has moved to exclude all evidence and argument by Simpson that the bloody glove found at Rockingham and the blood found in the Bronco were planted. As more fully explained in these motions, Simpson's planting theories lack any evidentiary support, and Simpson thus should not be allowedto ask any questions of witnesses or make any statements to the jury regarding the alleged planting of the glove or the Bronco blood.
Because the only relevance of Fuhrman's racism is its link to planting, exclusion of evidence and argument on the planting theories will render the evidence of Fuhrman's racism without a link to "any disputed fact that is of consequence to the determination of the action."' In other words, the evidence of racism will become utterly irrelevant and thus inadmissible under Section 350.
Furthermore, under Evidence Code Section 352, evidence is properly excluded "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Even if the Court allows Simpson to argue that Fuhrman planted evidence (which it should not), evidence of Fuhrman's racism should be excluded under Section 352.
Under the standards set forth by the California Supreme Court in People v. Kaurish, 52 Cal. 3d 648, 685 (1990), the evidence of racism in this case has nonexistent or minimal probative value and should be excluded. In Kaurish, the defendant wanted to introduce evidence that a third party "had a motive for being angry with the victim's mother, and possibly the victim," and argue from that evidence that the third party (and not the defendant) killed the victim. 52 Cal. 3d at 685. The Supreme Court first noted that mere evidence that another person may have had a "motive or opportunity" to commit the act the defendant is alleged to have committed, "without more, will not suffice . . .: there must be direct or circumstantial evidence linking the third person to the actual" commission of the act. Id. The Court then concluded that the defendant's motive evidence was properly excluded because "the slight probative value, if any, of [the] evidence was substantially outweighed by the possibility of jury confusion and undue delay." Id.
The same is true here. Simpson's allegations regarding Fuhrman's racism are nothing more than an attempt to establish a motive for Fuhrman's alleged planting of evidence. Apart from this evidence of motive, Simpson has no "direct or circumstantial evidence linking" Fuhrman to the alleged planting of the glove. Thus, under Kaurish, Simpson's evidence "will not suffice."
Furthermore, in this civil case, Simpson bears a heavier burden of producing the required "direct or circumstantial evidence" of planting than did the criminal defendant in Kaurish; Simpson cannot merely raise a reasonable doubt that Fuhrman may have planted the glove. Because Fuhrman was a police officer, Evidence Code Section 664 establishes a presumption that he properly performed his duties in finding and pointing out the glove found at the Rockingham estate. Cal. Evid. Code 664 ("It is presumed that official duty has been regularly performed."); People v. Harris, 213 Cal. App. 2d 365, 369 (1963) ("in the void of specific testimony . . . the courts cannot infer improper motives or activities on the part of [police] officers, but must presume that the officers regularly and lawfully performed their duties").In this civil action, Simpson's burden for rebutting the presumption established by Section 664 is by a preponderance of the evidence. See Cal. Evid. Code 115 ("Except as otherwise provided by law, the burden of proof requires proof by apreponderance of the evidence.'). Accordingly, Simpson must prove by a preponderance of the evidence that Fuhrman deviated from his official duties by planting the glove in an effort to frame him. If evidence of mere "motive and opportunity" is not sufficient to establish a reasonable doubt regarding planting, see Kaurish. 52 Cal. 3d at 685, it certainly cannot establish planting by a preponderance of the evidence. Accordingly, the evidence of racism has little, if any, probative value on the only issue to which it is even arguably relevant.
Despite its slight probative value, evidence of Fuhrman's racism clearly will prejudice and confuse the jury. No juror will be able to avoid the prejudice engendered by the mention of the word "rigger" and other racially disparaging remarks. This is precisely the type of evidence - powerful, inflammatory, prejudicial, but marginally relevant at best -- that Section 352 was designed to exclude.
Moreover, the introduction by Simpson of evidence regarding Fuhrman's alleged statements and conduct will require Goldman to call numerous witnesses to contradict Simpson's evidence. For example, if Kathleen Bell is allowed to testify regarding the statements she allegedly heard Fuhrman make, Goldman would call other witnesses who were present to contradict her testimony. A lengthy "trial within a trial" would also ensue with respect to the McKinney interview tapes. Given the extraordinarily low probative value of Simpson's evidence, the time involved cannot be justified.
For the foregoing reasons, Goldman respectfully requests that the Court issue an order in limine prohibiting Simpson from presenting evidence or argument at the trial of this action regarding Detective Fuhrman's alleged past racist statements and conduct.
Dated: August 26,1996
MITCHELL, SILBERBERG & KNUPP LLP
By: Daniel M. Petrocelli
Attorneys for Plaintiff Fredric Goldman
1. In his interrogatory responses, Simpson did not even mention Fuhrman's racism as a "fact" supporting his planting theory. To the extent Simpson has abandoned this theory of relevance, the evidence of Fuhrman's racism is irrelevant regardless of the outcome of the motion in limine addressed to the planting theory.
Moreover, the evidence clearly cannot be admitted as relevant to Fuhrman's credibility in this case because he will not be a witness at the trial of this action. In any event, even if Fuhrman's credibility were at issue, all of the considerations supporting exclusion of the evidence under Evidence Code Section 352 would still apply.