Menendez' Motion In Limine Re Govt's Proffered Tapes


SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

THE PEOPLE OF THE STATE No. BA068880
OF CALIFORNIA,
Plaintiff,

v.

ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
Defendants.

MOTION IN LIMINE BY DEFENDANTS JOSEPH LYLE AND ERIK GALEN MENENDEZ RE AUTHENTICATION OF TAPES PROFFERED BY PROSECUTION

DATE: JUNE 19, 1995 TIME: 9:00 A.M. PLACE: DEPARTMENT NW N

TO GIL GARCETTI, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES, AND / OR HIS REPRESENTATIVE, AND TO THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that on the 19th day of June, 1995, at 9:00 a.m. or as soon thereafter as counsel can be heard in Department Northwest "N" of the above-entitled Court, defendants Joseph Lyle Menendez ("Lyle Menendez") and Erik Galen Menendez ("Erik Menendez") will move the Court for an order prohibiting the prosecution from referring to and playing at the trial audio tapes of (1) a purported conversation among both defendants and Dr. Jerome Oziel on or about December 11, 1989; and (2) a purported conversation between Norma Novelli and Lyle Menendez in or around July, 1993. The motion will be made on the grounds that there is insufficient foundation for the admission of the tapes proffered by the prosecution, and that such tapes must be properly authenticated before admission. The motion will be based upon pleadings, records and files herein, and upon such other and further evidence and arguments as may be presented by defendants at the hearing of the motion.

Dated this 7th day of June, 1995.

MICHAEL P. JUDGE, PUBLIC DEFENDER
Charles Gessler, Deputy Public Defender
Terri Towery, Deputy Public Defender
By: /s/ Terri Towery
Attorneys for Defendant Joseph Lyle Menendez

LESLIE H. ABRAMSON, A Law Corporation
By: /s/ Leslie H. Abramson
Attorney for Defendant Erik Galen Menendez

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Among the items the prosecution has proffered in its case-in-chief in the retrial of this action are two audio tapes. The first tape purports to be a recording of a conversation among Dr. Jerome Oziel and defendants Erik and Lyle Menendez made on December 11, 1989 (the "Oziel tape"). The second purports to be a conversation between Norma Novelli and Lyle Menendez made in or around July, 1993 (the "Novelli tape").

The prosecution has indicated its position that the Oziel tape is self-authenticating, and argue that the investigating officer for this case, Detective Les Zoeller, can testify to the recovery of the tape from Dr. Oziel's safety deposit box, bank records can establish that the safety deposit box was rented by Dr. Oziel, Detective Zoeller can identity the voices on the tape as that of Dr. Oziel and Erik and Lyle Menendez, and the substance of the conversation on the tape establishes that it consists of admissions and adoptive admissions made by the defendants after the murders of Kitty and Jose Menendez." (People's Proffer of Evidence to be Presented Before a Single Jury, filed on or about May 16, 1994, p. 12,11. 15-20.)

Although the prosecution has not so indicated, presumably it intends to authenticate the Novelli tape through the testimony of Norma Novelli, who apparently made the recording of that conversation with her home answering machine.

Defendants object to admission of both audio tapes on the ground that the prosecution has not properly authenticated either of such tapes. The lack of authentication of each tape is discussed separately below.

II. THE OZIEL TAPE CANNOT BE AUTHENTICATED IN THE MANNER PROPOSED BY THE PROSECUTION

A. FACTUAL SHOWING BY PROSECUTION

As noted above, the prosecution has indicated it does not wish to call Dr. Oziel in the retrial of this case and takes the position that the Oziel tape is self-authenticating, with help of the testimony of Detective Zoeller and some bank records. Detective Zoeller testified at a hearing on April 26, 1995 regarding the proposed foundation for admission. He testified that on March 8, 1990 he was present when a search warrant was executed at the home of Dr. Oziel. (RT, Vol. 177, pp. 28378-9.) Subsequently Dr. Oziel took Detective Zoeller and others to a bank where the Oziel tape was one of several audio tapes apparently recovered by a special master, although Detective Zoeller did not personally see the seizure of any of the tapes. (RT, Vol. 177, p. 28380 & 28389.) Detective Zoeller identified previously marked Exhibit 323 as appearing to be one of the tapes that was in the possess on of the special master. (RT, Vol. 177, p. 28383.) He recalled that the special master possessed what Detective Zoeller believed to be an original plus duplicates of a tape containing the voices of Dr. Oziel and Erik and Lyle Menendez. (RT, Vol. 177, pp. 28391-2.)

Detective Zoeller also identified the voices that appear on Exhibit 323 sequentially as the voices of Lyle Menendez first, Dr. Oziel second, and Erik Menendez third. (RT, Vol. 177, p.28383.) Finally, he admitted that he had no personal knowledge regarding the actual making of the tape, including when, where or how the recording was made, who was present, or what was said before or after the tape was started or stopped. (RT, Vol. 177. pp. 28389- 90.) Detective Zoeller offered a lay opinion, over objection, that it did not appear to hint that the tape had been altered. (RT, Vol. 177, pp. 28405-6.)

The testimony of Detective Zoeller is not, and can never be, sufficient to authenticate the proffered tape. Detective Zoeller cannot know the true and complete extent of the conversation, nor is he competent to testify whether the tape has been altered or edited. (See O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 250, discussed infra.)

B. APPLICABLE LAW

The Evidence Code specifically requires authentication of writings, which are defined to include tape recordings. "Authentication of a writing is required before it may be received in evidence." (Evid. Code 1401, subd. (a).) "A tape recording of a conversation or interrogation is a 'writing' within the definition of Ev. C. 250." (Witkin Vol. Evidence, Documentary Evidence 912 Witness to Tape Recording, p. 874.)

Witkin explains how a tape recording may be authenticated: by a person percipient to the oral statements who can testify the recording is accurate. "A tape recording of a conversation or interrogation is a 'writing' within the definition of Ev. C. 250 (supra, 901). Authenticity of the recording may be established by a person who listened to the oral statements and can testify that the recording is an accurate reflection of them." (Witkin, Vol. 2 Evidence, Documentary Evidence 912 Witness to Tape Recording, p.874; numerous citations omitted.)

Thus, the original tape itself must be authenticated as accurate by someone qualified to do so. In O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, the Court of Appeal described an insufficient effort to authenticate an audio tape. In that case, the plaintiff's attorney hired a private investigator to surreptitiously record a conversation with defendant Sortino about the length of Sortino's out of state travels, which in turn related to the tolling of the statute of limitations for plaintiff's action. The plaintiff subsequently offered the tape and a declaration by plaintiff's lawyer purporting to authenticate the tape in opposition to a motion for summary judgment by defendant that the complaint was time barred. The Court of Appeals described the lawyer's declaration seeking to authenticate the tape as follows:
"O'Laskey offered a three-page transcript and a declaration by his attorney stating that counsel had retained an investigation service; that on June 16, 1986, he received the transcript and a tape from the investigator; that he listened to the tape; that the transcript is an accurate written record of the recorded conversation; and that the voice on the tape is the same as Sortino's voice, which he heard at Sortino's deposition." (Id., at p. 249)

The Court of Appeal held, "This evidence does not suffice to authenticate the transcript, that is, to establish that the tree- page transcript accurately reflects the content of the tape-- and it is wholly insufficient to authenticate the tape itself." (Ibid.) It explained that a tape recording is a "writing" and must be authenticated to be admissible into evidence. (O'Laskey v. sortino, supra, 224 Cal.App.3d 241, 249.) The court stated, "To authenticate a writing, its proponent must introduce 'evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is..." (Ibid.; citing Evid. Code 1400 and Contintnal Baking Co. v. Katz (1968) 68 Cal.2d 512, 524-526.)

In explaining why the foundational showing offered by O'Laskey failed to properly authenticate the tape, the court noted, "There is no way to know whether the tape is what O'Laskey claims it is. No declaration or other sworn testimony of the investigator was offered to describe when, where, how or by whom the tape was made." (O'Laskey v. Sortino, supra, Cal.2d 64, 77-78.) The Court of Appeal went on to state:

"Furthermore, O'Laskey failed to introduce any evidence regarding the completeness or accuracy of the tape. (People v. Patton (1976) 63 Cal.App.3d 211, 220(133) Cal.Rptr.533).) The statement of O'Laskey's attorney in his declaration that 'I have listened to the tape, and the transcript is an accurate written record of the conversation contained on the tape' addresses the accuracy of the transcript, not the accuracy or completeness of the tape. O'Laskey's attorney cannot know the true and complete extent of the conversation-- and the investigator is the only person competent to testify whether the tape had been altered or edited or whether it included the entire conversation." (O'Laskey v. Sortino, supra, 224 Cal.App.3d 241, 250.)

The above authorities make it clear that the prosecution must offer competent testimony "by a person who listened to the oral statements and can testify that the recording is an accurate reflection of them," before the Oziel tape will be properly authenticated and admissible. However, if the prosecution offers no one who both actually heard the conversation allegedly recorded and can testify under oath the tape accurately recorded that conversation, the prosecution has failed toauthenticate the tpae, and it is ainadmissivle.

Proof that the Oziel tape is an exact copy of the tape seized from Dr. Oziel's safety deposit box merely satisfies the best evidence problem; it does not establish that the original tape is itself authentic; i.e., that it is an accurate recording of a conversation between Dr. Oziel and the defendants. The Evidence Code itself makes this quite clear: "Authentication of a writing is required before secondary evidence of its content may be received in evidence." (Evid. Code 1401, subd. (b).) The Assembly Committee on Judiciary explained this requirement in its comment to this code section:

"Subdivision (b) of Section 1401 requires that a writing be authenticated even when it is not offered in evidence but sought to be proved by a copy or by testimony as to its content under the circumstances permitted by Sections 1500-1510 (the best evidence rule). This is declarative of existing California law. Spottiswood v Weir, 80 Cal. 448, 22 Pac. 289 (1889); Smith v. Brannan, 13Cal. 107, 115 (1859); Forman v. Goldberg, 42 Cal.App.2d 308, 316-317, 108 P.2d 983, 988 (1941). Under Section 1401, therefore, if a person offers in evidence a copy of a writing, he must make a sufficient preliminary showing of the authenticity of both the copy and the original (i.e., the writing sought to be proved by the copy)." (Ass. Comm. on Judiciary, Comment, Evid. Code 1401.)

As Witkin explains, "In other words, the exceptions to the best evidence rule (infra, 932 et seq.) excuse the introduction of the writing, but not its authentication." (Witkin, Vol. 2 Evidence, Documentary Evidence 905 For Admission of Secondary Evidence, p. 870.) Thus, proof that the tape in court is a copy of the tape seized fails to authenticate the original tape itself; without such an authentication, the tape is inadmissible, copy or not. The prosecution cannot authenticate the tape by proving it is an accurate copy of the original tape seized.

The prosecution has orally argued that the Ozie tape has been authenticated by admission. Evidence Code 1414 provides:

"A writing may be authenticated by evidence that:
(a) The party against whom it is offered has at any time admitted its authenticity; or
(b) The writing has been acted upon as authentic by the party against whom it is offered."

To say there is a paucity of law on authentication by admission would be an understatement. No case has been found discussing this code section. The Law Revision Commission comment to Evidence Code 1414 merely notes that the statue supersedes a Code of Civil Procedure section, which was "difficult to understand."

Presumably, a writing may be authenticated by admission in one of the two ways stated: the writing is acted on as authentic by the party it is offered against; or the party has admitted its authenticity. Clearly the defendants in this case have not expressly admitted the authenticity of the Oziel tape. Thus, the only conceivably applicable language would be that "the writing has been acted upon as authentic by the party against whom it is offered."

The Oziel tape has not been so "acted upon" by the defendants in this case. In the prior trail, defense counsel made the strategic decision to play the Oziel tape and have the defense expert witnesses comment on its contents and methodology in the context of explaining why the tape did not change their previously expressed opinions regarding the defendants' respective states of mind at the time of the killings. This was necessitated by the Court's ruling at he close of the defense case that the defendants had placed their mental conditions in issue under Evidence Code 1016, thereby waiving the psychotherapist-patient privilege which had protected the Oziel tape from disclosure until such ruling. The defense experts, like Detective Zoeller, had no personal knowledge regarding the actual making of the tape, including when, where or how the recording was made, who was present, or what it said before or after the tape was started or stopped. The experts, like Detective Zoeller, were not qualified to testify as to whether the tape had been altered, or even whether it was the original tape. Rather, the defense experts merely testified about what they heard on the tape and how that affected their opinions. That testimony did not accept the Oziel tape as authentic, but instead analyzed and criticized it as containing unreliable information.

The attorney's tactical decision to preemptively play the Oziel tape when the Court had just ruled that the prosecution could use it in rebuttal does not constitute the type of conduct envisioned by Evidence Code 1414(b). Such conduct is no different from the defense cross-examining Norma Novelli regarding her taping of Lyle Menendez. At this prior hearing the defense did not challenge the identification of Lyle's voice on the tape proffered by the prosecution, ore did it challenge the content or authenticity of the original tape. The cross-examination of Ms. Novelli respecting the Novelli tape does not constitute a waiver of the foundational objection. Similarly, defendants have not waived their objection to the Oziel tape by their experts' testimony at the last trial. Neither defendant, nor anyone on his behalf, has ever admitted, or acted as if, the Oziel tape was authentic, original, unaltered or complete.

In addition, the fact that he defense did not previously object on foundational grounds prior to the Oziel tape being played does not constitute a waiver of such objection. At that time, Dr. Oziel was a witness for the prosecution, and presumably available to testify regarding such authenticity. The prosecution now seeks to authenticate such tape without Dr. Oziel. Moreover, the new prosecution team has been considered by the Court to have been waived by failure to raise them at the last trial. To the contrary, some of such newly raised objections have resulted in changed rulings by the Court. The defense cannot be treated any differently, especially when this foundational objections raised in changed circumstances. For all these reasons defendants respectfully request that the prosecution be precluded from proffering the Oziel tape absent the proper foundational showing.

III. THE NOVELLI TAPE CANNOT BE ADMITTED UNLESS PROPERLY AUTHENTICATED

The above cited rules respecting authentication of audio tapes apply equally to the Novelli tape. Unless the prosecution authenticates the original tape by Ms. Novelli, such tape is not admissible. Presumably, the prosecution will seek to so authenticate the Novelli tape through her testimony. If so, defendants reserve the right to challenge both her testimony, as well as any additional testimony offered respecting the lack of alterations on the Oziel tape, through defense expert testing of the original tapes.

CONCLUSION

For all the reasons set forth above, defendants respectfully request that this motion be granted, and that the prosecution be precluded from offering or referring to the Oziel tape and the Novelli tape absent proper authentication.

Respectfully submitted,

By: /s/ Terry Towery
Attorneys for Defendant Joseph Lyle Menendez

By: /s/ Leslie H. Abramson
Attorney for Defendent Erik Galen Menendez

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