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Prosecution motion for photos
Court TV Casefiles: Menendez
In this motion, filed June 14, 1995, prosecutors ask for photos that were used in the first trial to be excluded from use in the retrial. In the first trial, Lyle Menendez claimed his father took pictures of him and his brother in the shower or the bath and while they changed their clothes.
GIL GARCETTI
District Attorney
DAVID P. CONN
Head Deputy District Attorney
CAROL JANE NAJERA
Deputy District Attorney
210 West Temple Street
Los Angeles, California 90012
Telephone: (213) 974-3739
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF LOS ANGELES
CASE NO. BA068850
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
v.
JOSEPH LYLE MENENDEZ and ERIK GALEN
MENENDEZ
Defendants
PEOPLE'S MOTION TO EXCLUDE
PHOTOGRAPHS TAKEN BY AN
UNIDENTIFIED PHOTOGRAPHER
FOR AN UNKNOWN REASON
DATE: JUNE 19, 1995
TIME: 9:00 A.M.
PLACE: DEPARTMENT NW "N"
TO THE HONORABLE STANLEY M. WEISBERG,
JUDGE OF THE VAN NUYS SUPERIOR COURT, AND
TO THE DEFENDANTS AND THEIR ATTORNEYS:
PLEASE TAKE NOTICE that on June 19, 1995, the people
of the State of California will move this court to rule that
two photographs that were presented in the first trial
depicting the defendants in the nude be excluded in the
retrial because this evidence cannot be properly
authenticated, is lacking in relevance, and is more
prejudicial than probative under Evidence Code section 352.
I.
INTRODUCTION
In the first trial of this matter the defendants introduced into
evidence an envelope (exhibit 219) containing a set of
negatives (exhibit 220) made from a single roll of film.
They also introduced the proof sheet of these negatives as
well as prints of these negatives (exhibits 221 through 234).
These exhibits were received into evidence without
objection by the prosecution. The prosecution now objects
to the defendants presenting exhibits during opening
statements.
In the first trial, Lyle Menendez claimed that his father took
pictures of his private parts as well as those of his brothers
while they were in the shower or the bath, or while they
were changing their clothing.(1) When shown the
photographs now objected to by the prosecution, he
described them in the following sequence: a family
photograph, a photograph of himself, (2) a photograph of his
brother Erik, something unidentifiable, the defendants, and
some other boys, his father and Erik, three photographs of
the defendants, his brother Erik and his mother, his brother
Erik, (3) and the dog.(4) No further foundation was laid for
the admission of these photographs.
Lyle Menendez was unable to identify the photographs now
objected to by the prosecution as photographs taken by Jose
Menendez because, he conceded, he had never seen these
particular photographs before.(5) Nor had he ever seen the
photographs which he alleged had been taken of him and his
brother. The photos as an issue were ultimately received
into evidence without objection by the People, even though
neither this witness nor any other witness was able to
establish that Jose Menendez had taken the photographs in
issue. Moreover, since the defendant had never seen any of
the photographs that his father had allegedly taken of him,
and insofar as he was, of course, unable to look through the
camera lens while photographs were allegedly being taken,
the witness is simply assuming that there was film in the
camera, that the camera was working, that photographs were
actually taken and developed, and that these alleged
photographs would depict only his genital area.
The defendant's theory of relevance for this evidence is that
it corroborates his claim that his father took photographs of
himself and his brother in the nude for a lewd purpose. He
then reasons, in turn, that the taking of such photographs
tends to support his claim that his father molested him and
his brother. He goes on to reason that this allegation of
molestation, in turn, somehow tends to support his claim
that he had an honest belief that his parents were going to
kill him on August 20, 1989.
It is the contention of the People that the photographs should
be excluded from the retrial because there is insufficient
authentication to establish that Jose Menendez took the
photographs, that the taking of photographs does not tend to
establish that Jose Menendez sexually molested the
defendants, that acts of sexual molestation when the
defendants were young children does not tend to establish
that acts of sexual molestation of Erik Menendez continued
into his adulthood, and that, in any event, this evidence does
not tend to establish a belief on the part of the defendants
that their parents were going to kill them on August 20,
1989, particularly insofar as the defendants concede that
they did not kill because they feared that their father was
going to molest them, but only because they believed that
their parents were going to kill them because they had
threatened to reveal the family secret. These photographs
should thus be excluded pursuant to Evidence Code Sections
1400, 350, and 352.
II.
THE PHOTOGRAPHS SHOULD BE EXCLUDED
UNDER
EVIDENCE CODE SECTION 1400
For the purpose of the Evidence Code, a photograph is a
"writing" (Evidence Code section 250). Writings must be
authenticated before they may be received into evidence
(Evidence Code section 1401). Where the relevance of the
evidence is dependent upon the existence of the preliminary
fact of authenticity, the burden is on the proponent to
produce evidence sufficient to sustain a finding as to the
existence of the preliminary fact of the authenticity of a
writing (Evidence Code section 403).
Authentication, according to Evidence Code section 1400
(a), means:
(a) the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the
evidence claims it is or
(b) the establishment of such facts by any other means
provided by law.
(emphasis added)
Ordinarily, photographs are properly authenticated by
simply establishing that the photo is a faithful representation
of the objects or persons depicted. Ordinarily, however, the
identity of the photographer is not the key issue before the
trier of fact nor the reason why the photographer is being
offered. Here, the preliminary fact of the identity of the
photographer is critical to the relevance and admissibility of
the evidence.
The proponent of the evidence in issue contends that the
evidence consists of two photographs taken by Jose
Menendez. That is the significance and the relevance of the
writings in issue. These photographs are neither properly
authenticated nor are they relevant, unless it can be
established that they were taken by Jose Menendez. The
burden is on the defendants to produce evidence sufficient to
sustain a finding that these particular photographs wee taken
by Jose Menendez, rather than by someone else. If the
photos wee taken by someone other than Jose Menendez-
such as by children playing with the camera- they have no
relevance whatsoever, and the admission of such highly
inflammatory photographs into evidence, based upon the
possibility that hey could have been taken by Jose
Menendez, is highly prejudicial to the prosecution.
Here the defendants are incapable of establishing the pivotal
element upon which the relevance of the photographs is
premised- the identity of the photographer who took the
photographs. The defendants never saw any of the
photographs allegedly taken by Hose Menendez nor have
they ever seen these particular photos before. Rather than
lay a proper foundation, they simply argue that their
allegation that Jose allegedly took some photographs of
them is sufficient to establish that he took these particular
photographs. That is like saying that because a decedent
was sometimes observed signing company documents, the
particular company document in dispute must have been
signed by the decedent, and is properly authenticated by the
anecdotal information.
This court should find that there is insufficient evidence to
support a finding that the evidence is what its proponents
purport it be- photos taken by Jose Menendez- not only
because there are no witnesses who can establish the identity
of the photographer, and not only because the allegation that
Hose sometimes took photos is an insufficient basis upon
which to conclude that Jose took these particular photos, but
also because the nature of the evidence itself is inherently
suggestive of the fact that neither Hose Menendez nor any
other adult took the photos in question.
This court has had an opportunity to view the evidence in
issue and this court is aware that the photos in dispute
appear in a strip of negatives sandwiched between other
photos of children such as those commonly taken at a child's
party. On the strip of negatives, contiguous to the two key
photos in issue, is a photo of a door jamb. The photographer
had apparently held the camera at an angle and took an
unfocused, tilted photograph of a door jamb. Anyone who
has ever seen a photograph taken by a young child would
conclude that this photograph was obviously taken by a
young child.
The two key photos in issue are strikingly similar to the
photo of the door jamb. They are also photos taken at an
angle, much like the manner in which the photo of the door
jamb was taken. The composition in both photos is so
immature that the faces of the subjects do not appear in the
photos. The physical appearance of the photographs
themselves is a consideration that this court can and should
take into account in deciding whether the photographs have
been sufficiently authenticated, particularly where there is
no direct evidence of the identity of the photographer and
where the defendants themselves are asking this court to find
that he preliminary fact of authentication can be established
through circumstantial evidence (the recollection of Lyle
Menendez regarding the taking of the other photographs
under different circumstances).
We ask this court to find that in the absence of testimony
from a competent witness as to the identity of the
photographer, and in view of the fact that the nature of the
photographs themselves strongly suggest that they were not
taken by an adult, that the evidence is insufficient to support
a finding that it is what it purports to be- photos taken by
Jose Menendez as part of an on-going patter of abuse. We
ask the court to appreciate that the jury is being asked to
speculate that the photos were taken by Jose Menendez for a
lewd purpose, rather than by a child playing with the
camera, or by some other person who simply thought they
would make cute photographs, Without proper foundation,
the photographs invite speculation as to the identify to the
photographer and the purpose for which they were taken.,
We ask this court to find that he defendants have failed to
lay a proper foundation for the admission of the photographs
under Evidence Code section 1400, 350, and 403 to justify
their admission.
III.
THE PHOTOGRAPHS SHOULD BE EXCLUDED
UNDER EVIDENCE CODE SECTION 350
Even if the defendants could establish, through competent
evidence, the preliminary fact that the particular
photographs in issue were taken by Jose Menendez rather
than by another person, the photographs would still be
inadmissible pursuant to Evidence Code sections 350 and
352. There are several theories for excluding the evidence
under Evidence Code section 350, each theory premised
upon leaps in logic made by the defendants in regard to this
evidence: that it proves that Jose was molesting during the
time period that he photographs were taken, that it proves
that Jose was molesting Erik Menendez near the time of the
murders, and that it bears upon the defendants' state of mind
on the night of the murders.
1. THE PHOTOGRAPHERS HAVE NO TENDENCY TO
REASON TO PROVE THAT JOSE MENENDEZ
WAS MOLESTING HIS SONS
In People v. Pitts, (1990) 223 Cal. App. 3d 606, the
defendant was charged with child molestation and using
children for purposes of pornography. The crime had
occurred at a location referred to in the opinion as the "green
house." A witness testified that, in another location (Knott
Street) more than a year later, she had observed cameras,
lighting equipment, a television set, light stands and a video
camera used by the defendant to make tapes of child
molestations, and she also testified to her observations of the
witness regarding the video equipment and the pornographic
videos was admissible:
The basis for admitting this evidence was that children had
testified to the use of the equipment and Idolina's testimony
showed that Frosythe had the equipment used to make the
child pornography with which he was charged. The jury
could infer that he ended up with the equipment used in the
crimes charged, after the arrest of his coconspirators. His
possession of the video film would allow the jury to infer it
was one of the films resulting from the conspiracy charged
in the instant case. Pitts at 820.
The Court of Appeal, however, ruled that the admission of
this evidence was reversible error because "the equipment
used in the Knott Street acts was simply not sufficiently
shown to be the equipment used in the green house." Pitts at
835. The evidence thus impermissibly bolstered the
credibility of the green house children, Knott Street video
equipment was inadmissible for those purposes. Pitts at
837. Because the Knott Street video equipment may not
have been the same equipment used in the green house, the
mere fact that the defendant had video equipment was
improperly admitted, even though it was apparently used to
make child pornography, and even thought the Knott Street
video may have been made in the green house.
Similarly, in the case before the court, the defendants seek to
place nude photographs of themselves into evidence despite
the fact that, even by their own account, these photos may
have been taken by someone other than Jose Menendez. As
in Pitts, they seek to bolster their credibility with photos that
could have been taken by another person. Based upon Pitts,
the photos should be ruled inadmissible.
In Page v. Alaska (1983) 657 P. 2d 850, a murder case in
which the defendant alleged that the victim had attempted to
homsexually rape him, the defendant argued that the trial
court had erred in excluding literature on aberrant sexual
activity found in the victim's safe. The books included, "I
Pervert, Little's Brother's Big Thing, Sex in the Classroom,
The World Practice of Anal Love, Torrid Women for the
Young Boys, Masturbation, A lust for Incest, The Friendly
Couples, Focus on Incest and the Illustrated Encyclopedia of
Obscenity and Pornography."
The Alaska Court of Appeals ruled that the lower court had
not erred because the defendant had not established that a
person who read those books would be more likely to
commit homosexual rape than someone who didn't. Page v.
Alaska, supra at 851.
Similarly, in the case before the court, in the absence of
evidence that someone who takes pictures of a naked child is
more likely than not to commit incest and child molestation,
the photographs should be ruled inadmissible. There is no
necessary or causal connection between these photos and the
alleged acts of molestation.
2. THE PHOTOGRAPHS HAVE NO TENDENCY IN
REASON TO PROVE THAT JOSE MENENDEZ WAS
MOLESTING HIS SONS IN 1989
The evidence should be excluded because the fact that the
defendants were allegedly molested years earlier by their
father has no tendency in reason to prove that Jose
Menendez was still molesting his sons at the time of the
murders. Moreover, if prior acts of molestation has no
tendency in reason to prove molestation in 1989, then
certainly photographs which, in and of themselves, do not
prove molestation but which simply depict children in the
bathroom without their clothing on have even lesser
probative value to the claims of molestation in 1989.
3. THE PHOTOGRAPHS ARE NOT RELEVANT TO
THE DEFENDANTS' MENTAL STATE ON AUGUST
20, 1989
As Lyle Menendez conceded in his testimony, he did not kill
his father because of any alleged acts of abuse, but because
he feared that his parents were going to kill him because
they believed that he was going to reveal the family secret.
Nevertheless, the defendants argue that this allegation of
molestation somehow tends to support their claim that they
had an honest belief that their parents were going to kill
them on August 20, 1989. There is no logical or causal
connection between two, much less is there any logical or
causal connection between photographs taken by an
unidentified photographer for an unknown reason years
before the murders, and the defendants' claim that on August
20, 1989 they believed their parents were going to kill them
for a reason unrelated to alleged acts of molestation
occurring years earlier, and entirely unrelated to photographs
taken years earlier.
IV.
THE PHOTOGRAPHS SHOULD BE EXCLUDED
UNDER EVIDENCE CODE SECTION 352
The determination that must be made by this court is
whether the proffered evidence is probative of the ultimate
issue in this case, how probative it is of that ultimate issue,
and whether admission of the proffered evidence is
outweighed by prejudice, the consumption of time, and the
possible confusion of the issues and misleading of the jury.
Not only should the photographs to which the prosecution
objects be excluded under Evidence Code section 350, but it
should be excluded under Evidence Code section 352 as
well. That section provides:
The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create the substantial danger of
undue prejudice of confusing of the issues, or of misleading
the jury. (emphasis added).
The decision to admit or exclude evidence under this
Evidence Code section lies within the sound discretion the
trial court, and the court's ruling not be reversed unless the
probative values of the evidence clearly outweighs any
probability that its admission will necessitate an undue
consumption of time, or create a substantial danger of undue
prejudices, of confusing of the issues, or of misleading the
jury. People v. Von Villas (1992) 10 Cal.App.4th 201. In
evaluating the probative value of evidence, the court should
not only consider the extent to which the evidence has a
tendency in reason to prove an issue in dispute in the trial,
but the court may also consider the remoteness of the
evidence. People v. Northrop (1982) 132 Cal.App.3d 1027.
In Northrop, the Court of Appeal held that he trial court had
properly excluded, under Evidence Code section 352,
defense evidence of the defendant's extra judicial statements
offered under the state of mind exception to the hearsay rule,
where the statements were made long before the crime, and
the trial court ruled that the statements were too remote in
time to justify their admission. Not only are the
photographs in issue lacking in any logical probative
relationship to the claimed belief of the defendants that heir
parents were going to kill them on August 20, 1989, but they
were also taken at a point in time that is extremely remote to
the time of the murders.
We ask the court to rule that this inflammatory should be
excluded from this trial because the probative value of such
evidence is so collateral to the determination to be made by
the jury concerning the defendants' mental state on August
20, 1989 that whatever minimal value such evidence holds is
outweighing by the countervailing considerations of
prejudice, confusion of the issues and misleading of the jury,
particularly where the identity of the photographer is a
matter of speculation.
V.
CONCLUSION
For the foregoing reasons the People respectfully request
that the court grant our motion to exclude the evidence in
dispute from the retrial, and to bar the defendants from
mentioning such evidence in their opening statements.
Respectfully submitted,
/s/
David P. Conn
/s/
Carol Najera
1 See Vol. 84, p. 14191, lines 25-28; and p. 14192, lines 1-7
2 This photo depicts a boy wrapped in a towel who appears
to have just gotten out of the bath tub or shower.
3 This photo depicts a boy in a bathtub.
4 See Vol. 84, p. 14194, lines 5-28 and p. 14195-14196.
lines 1-2.
5 See Vol. 84, p. 14196, lines 8-26.
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