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Erik's Opposition to Lyle's Motion to Prohibit Erik from Introducing Evidence Incriminating Lyle

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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.

OPPOSITION TO MOTION BY JOSEPH LYLE MENENDEZ TO PROHIBIT ERIK MENENDEZ FROM INTRODUCING EVIDENCE OF OUT-OF-COURT STATEMENTS INCRIMINATING LYLE MENENDEZ

TO GIL GARCETTI, DISTRICT ATTORNEY OF LOS ANGELES COUNTY, TO DEPUTY DISTRICT ATTORNEY DAVID P. CONN AND DEPUTY DISTRICT ATTORNEY CAROL JANE NAJERA, HIS REPRESENTATIVES, AND TO JOSEPH LYLE MENENDEZ AND HIS COUNSEL OF RECORD:

Defendant Erik Galen Menendez submits the following opposition to the "Motion by Defendant Joseph Lyle Menendez for Order Prohibiting Codefendant from Eliciting or Referring to any Out-of- Court Statements by Codefendant which Incriminate Defendant." In this motion, which is dated December 14, 1994, defendant Joseph Lyle Menendez seeks an order from this Court prohibiting Erik Galen Menendez and his counsel from eliciting or referring to any out-of-court statements by Erik Menendez which might tend to incriminate Lyle Menendez. More specifically, Lyle Menendez moves to preclude Erik Menendez from (1) cross-examining prosecution witness Craig Cignarelli with respect to statements by Erik Menendez which might incriminate Lyle Menendez and (2) examining or cross-examining any other witness called by any party regarding statements by Erik Menendez which might tend to incriminate Lyle Menendez.

The motion filed on behalf of Lyle Menendez plainly demonstrates that the statements the prosecution seeks to elicit from Craig Cignarelli and others regarding out-of-court statements by Erik Menendez cannot be "successfully edited" within the meaning of People v. Matola, 259 Cal. App. 2d 686, 693 (1968). Moreover, in making this motion, Lyle Menendez fails to address Erik Menendez' rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution to a fair and reliable determination of guilt and penalty and to a full and fair presentation of his defense in this capital case. Simply put, Erik Menendez has a right to present to the jury an accurate account of Craig Cignarelli's recitation of Erik's alleged statements in a manner that does not distort Erik's role in the events at issue by omitting any reference to the actions of his brother Lyle before the Menendez parents were shot. The prosecution may not be allowed to improperly and unfairly inflate Erik Menendez' role in these events, and increase Erik's level of culpability in the deaths of his parents, by the device of seeking to try both brothers before the same jury. Nor may codefendant Lyle Menendez accomplish the same result by a motion to preclude cross-examination. See Erik Menendez' Response to Prosecution's Proffer of Evidence to be Presented Before a Single Jury, at 18- 19 .

Defendant Lyle Menendez' motion to limit cross-examination should also be denied because this Court is not required to rule on matters of cross-examination at this point in time, before the trial has commenced and before there has been any evidence presented by any party. See People v. Williams, 44 Cal. 3d 883, 912-913 (1988). See also People v. Keenan, 46 Cal. 3d 478, 513 (1988) (a party has no inherent right to a binding advance ruling on specific objections which may be raised during cross- examination).

CONCLUSION

For the reasons discussed above, defendant Erik Gaien Menendez requests that this Court deny Lyle Menendez' motion for an order that Erik be precluded from eliciting any portions of his out-of- court statements that incriminate Lyle Menendez, and thereby be denied full and fair cross-examination and presentation of evidence in his defense.

DATED: January 13, 1995

Respectfully submitted,

Leslie H. Abramson
Marcia A. Morrissey
Attorneys for Defendant
ERIK GALEN MENENDEZ

By: /s/ Marcia A. Morrissey

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