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Prosecution's 6/95 Motion To Exclude Naked Lyle & Erik Menendez Photos
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
CASE NO. BA068880
PEOPLE OF THE STATE OF CALIFORNIA,
ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
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.
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.
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.
/s/David P. Conn
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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