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April 21st, 2005 Trial Analysis: Brian Barron (Cross Examination), Stephen Cleaves, Timothy Sutcliffe, Timothy Rooney, Steven Moeller, Jeff Klapakis, Cynthia Montgomery, Part 3 of 4

September 25, 2013

Judge Melville was very skeptical about allowing this expert testimony, so Auchincloss suggested that there are two “tracks” by which it should be admissible: the conduct of Jackson, and Janet’s refusal to tell the truth under oath during her depositions. He also stated that the expert witness would testify that Battered Women’s Syndrome is not limited exclusively to the victim’s home, but that a victim can show symptoms of this disorder in other places as well (such as Neverland):

10 THE COURT: The thing I’m having trouble

 

11 with is that the case where this usually arises is

 

12 in a case where a — if it’s a husband — let’s use

 

13 that as an example. A husband is charged in court

 

14 with abusing his wife, and she testifies, and

 

15 there’s a lot of inconsistencies because she didn’t

 

16 report it, or at other times she said he was

 

17 abusive, he wasn’t abusive, that type of thing, and

 

18 you have —

 

19 MR. AUCHINCLOSS: Well —

 

20 THE COURT: — the testimony to explain

 

21 her — it’s not too different from the Child Abuse

 

22 Accommodation Syndrome, where the child doesn’t

 

23 accurately report and you bring in an expert to

 

24 suggest why that would be, you know, in the total

 

25 scheme of things.

 

26 MR. AUCHINCLOSS: And you’re exactly right.

 

27 THE COURT: In this case, that’s not the

 

28 situation at all. I mean, she’s – 7257

 

1 MR. AUCHINCLOSS: This is an unusual hybrid.

 

2 I couldn’t agree more.

 

3 But as you pointed out, there’s two tracks

 

4 here for admissibility. One deals with the conduct

 

5 of the defendant, and trying to understand Janet’s

 

6 conduct, which I think is just — just something

 

7 that this jury absolutely has to have to help them

 

8 understand Janet. She suffers from a posttraumatic

 

9 stress disorder. They should be apprised of that

 

10 and the classic symptomology, which is completely

 

11 counterintuitive. And we don’t want this jury to

 

12 make this decision based on misconceptions. And

 

13 there are an abundance of misconceptions of how

 

14 women should be behave and how they actually do

 

15 behave when they’ve been abused by domestic

 

16 partners.

 

17 But the other side, the other track, which

 

18 is completely independent of this and which this

 

19 evidence should come straight in on, is to explain

 

20 why she didn’t tell the truth under oath. It goes

 

21 straight to that issue, which the defense has chosen

 

22 to make a centerpiece on their attack on Janet.

 

23 So for the jury to understand why did she

 

24 perjure herself, why did she lie about her husband,

 

25 that’s a highway to bring this type of evidence in

 

26 so that the jury can understand, that’s normal.

 

27 Women who are — who are abused do that. It

 

28 shouldn’t be held against her, and it shouldn’t be 7258

 

1 used against her the way this defense intends to do,

 

2 and the way they tried to do when they examined her,

 

3 and the way they ultimately will do when they argue

 

4 this case.

 

5 So on one hand, the defense has asked for

 

6 it. They’ve asked — they should have all the

 

7 evidence on what the reasons why she perjured

 

8 herself. But on the other hand, it’s — there are

 

9 many enigmas about why Janet acted the way she did,

 

10 and those enigmas are largely explained when people

 

11 understand that she is a classic — she’s exhibiting

 

12 the classic symptoms of posttraumatic stress

 

13 disorder.

 

14 And I might point out finally, just that

 

15 under the code, under the section here, this is not

 

16 exclusively used in the case of Battered Women’s

 

17 Syndrome where there’s a domestic violence, where

 

18 the husband is charged and the woman is the victim.

 

19 I mean, the code itself says “whenever it’s

 

20 relevant.” So it’s not a matter of whether it’s

 

21 normal or not. The question is, is it relevant?

 

22 Does it have a tendency in reason to prove —

 

23 THE COURT: Well, it’s just that it’s — the

 

24 relevancy is very clear under the typical scenario.

 

25 MR. AUCHINCLOSS: Yes.

 

26 THE COURT: It’s not so clear here.

 

27 MR. AUCHINCLOSS: But even in the cases, the

 

28 cases don’t always just go to that classic scenario. 7259

 

1 Sometimes it’s used on the other side of the coin.

 

2 Sometimes it’s used to show why the woman assaulted

 

3 the man.

 

4 THE COURT: Well —

 

5 MR. AUCHINCLOSS: And there’s case law on

 

6 that as well.

 

7 THE COURT: Yeah, and —

 

8 MR. AUCHINCLOSS: So —

 

9 THE COURT: I chose the example of the man

 

10 assaulting the woman because that’s the scenario we

 

11 have in front of me.

 

12 MR. AUCHINCLOSS: Sometimes it’s used to

 

13 show that the defendant — it’s not only used to

 

14 show the victim suffered from post-traumatic.

 

15 Sometimes it’s used to show the defendant

 

16 suffered —

 

17 THE COURT: Oh, I see what you’re saying.

 

18 MR. AUCHINCLOSS: When the woman is charged

 

19 with murder, for instance, and an expert is

 

20 introduced to show she suffered from Battered

 

21 Women’s Syndrome. So there are other cases.

 

22 But I agree with you, it’s not always

 

23 simple, but we are not always confronted with simple

 

24 facts for the application of the law. But I will

 

25 say that it is abundantly clear that, under the

 

26 defense’s own intent and their own tactic in this

 

27 case, they made it relevant, at a minimum, by

 

28 charging her with perjury and parading that out in 7260

 

1 front of this jury.

 

2 So I would submit there are two very strong

 

3 reasons that make this evidence highly relevant.

 

4 And I don’t think you can — you can dispute the

 

5 fact that many of her — much of her conduct is

 

6 counterintuitive, that — and that it does fit

 

7 within a pattern that is prevalent among women who

 

8 are victims of this.

 

9 THE COURT: But you’re saying that the

 

10 expert’s going to testify that not only does the

 

11 spousal abuse accommodation theory explain why a

 

12 person doesn’t report, prosecute, et cetera, a

 

13 person who is physically abusing them, and will say

 

14 that that’s equivalent to this case where —

 

15 MR. AUCHINCLOSS: Yes, she will say that.

 

16 She will say that this — this disorder, the

 

17 symptomology of this disorder, is not isolated to

 

18 the home. When they walk out of the home, they

 

19 carry this disorder with them. When they are

 

20 confronted in the world with the stimulus, the

 

21 similar stimulus that they have in the home, such as

 

22 death threats, such as false imprisonment, such as

 

23 threats of child abduction, such as trying to obtain

 

24 control, any act of power, isolation and control,

 

25 which we have here, when they’re confronting these

 

26 types of influences, they react the same way they do

 

27 in the home. The posttraumatic stress disorder goes

 

28 with them wherever they go. 7261

 

1 And that’s what this witness — this expert

 

2 witness will testify to. She will testify to that

 

3 these types of incidences are — are Janet suffering

 

4 from this syndrome. That this type of behavior

 

5 is — and not specifically, but generally, because

 

6 this will be general testimony, as it should be.

 

7 It’s to demystify the area. But she’ll testify that

 

8 women do not leave this disorder when they walk out

 

9 of the house or even when they leave their husband.

 

10 So —

 

11 THE COURT: Okay. Mr. Sanger, are you going

 

12 to discuss this?

Sanger argued that the expert witness testimony wasn’t relevant to the current case because Janet didn’t lie due to battered woman’s syndrome, but because she wanted to gain money from her victims (Jackson, JC Penney, etc.), and that is the real reason why she plead the Fifth regarding her welfare fraud. Ironically, but not surprisingly, the prosecution objected to the defense calling Dr. Hochman to testify that Janet was a paranoid schizophrenic who coached her children to lie. (Dr. Hochman wasn’t allowed to testify because Judge Melville didn’t want to have a mini-trial within a trial, and have the JC Penney case re-litigated; even though, he allowed Sneddon to bring in his own mini-trial with the 1108 evidence!)

13 MR. SANGER: Yes, sir. Yes, sir.

 

14 We briefed it, and I think the Court has hit

 

15 one of the major points on the head, is that this

 

16 isn’t relevant to this kind of a case.

 

17 But responding to what Mr. Auchincloss said

 

18 in an effort to answer the Court’s question, we

 

19 didn’t make her perjury relevant. She has committed

 

20 perjury, I think it’s pretty clear, in this court

 

21 from the stand. And she has said things that are

 

22 preposterous, that are absolutely counter to the

 

23 other evidence in the case. And that’s not because

 

24 she’s a battered woman. That’s because she lies for

 

25 gain.

 

26 I don’t want to be unnecessarily harsh, but

 

27 let’s face it, that’s what this is about. She took

 

28 the Fifth so that she has that protection to not be 7262

 

1 cross-examined. But the Court is going to allow us

 

2 to bring in evidence that she lied for gain on

 

3 repeated declarations for money and got that money

 

4 and continued to get that money, and lied and

 

5 cheated her way through life. That is what she

 

6 does. That has nothing to do with being a battered

 

7 woman.

 

8 Now, the People say, well, they should bring

 

9 this in and because Mr. Auchincloss says she’s

 

10 really suffering from posttraumatic stress disorder,

 

11 which is interesting, because they specifically

 

12 asked to exclude Dr. Hochman’s testimony, who

 

13 indicates that she is basically an antisocial

 

14 personality disordered patient, person, who coaches

 

15 her children to lie. Remember, Dr. Hochman was the

 

16 one that said that, and that she lies for gain, and

 

17 lied for gain in that case in the J.C. Penney’s case

 

18 itself. But he made a diagnosis after actually

 

19 seeing her and evaluating her and testing her. If

 

20 they’re —

 

21 MR. AUCHINCLOSS: I’m going to object that

 

22 that misstates the evidence, and this should be a

 

23 legal argument rather than a factual one.

 

24 MR. SANGER: Well —

 

25 THE COURT: Overruled.

 

26 MR. SANGER: If they bring in PTSD and say

 

27 that’s what this is all about, and she can get up

 

28 and say whatever she wants, obviously it proves too 7263

1 much. It’s not relevant to this case. It’s not

 

2 relevant to the facts of this case, despite the

 

3 heroic effort to stretch it. But it would prove too

 

4 much. Anybody who claims that they were assaulted

 

5 by their husband could come into court, lie in the

 

6 trial proceedings before the Court, lie in countless

 

7 other proceedings, and under oath, and then say, “I

 

8 get a pass.”

 

9 Now, there’s nothing funny or nothing to be

 

10 minimized about being the victim of any kind of

 

11 violence, whether it’s domestic violence or any

 

12 other kind of violence. But it proves too much to

 

13 say that therefore this witness, who Your Honor

 

14 heard for five days — and we’ll address this maybe

 

15 in an 1118.1 motion at some point here.

 

16 But without prejudging that, Your Honor

 

17 heard this witness for five days. That is not the

 

18 behavior of a shy, hopeless – what were the words? –

 

19 a hopeless person who can’t stand up for herself.

 

20 She was perfectly willing to take Mr. Mesereau on as

 

21 aggressively as possible. She has taken other

 

22 people on in her history in that very same way.

 

23 When she wants something, she will get it.

 

24 There is nothing — nothing shy about that

 

25 woman that was on the tape that was trying to keep

 

26 herself situated as close to Michael Jackson as

 

27 possible, while denying that Jay Jackson even

 

28 existed. There is nothing shy about this woman at 7264

 

1 any time. And she’ll get up here and blatantly lie.

 

2 If the Court says, “Well, you can” — if any

 

3 court said, “Well, you can bring in an expert to say

 

4 this person gets a pass and they can lie,” what’s

 

5 the point of cross-examination? What’s the point of

 

6 coming into court and having the jury hear these

 

7 things?

 

8 Now, it simply proves too much. It’s not

 

9 relevant to the facts of this case. If they do

 

10 intend to bring in something like that and claim

 

11 that it shows PTSD, and therefore she’s not able to

 

12 tell the truth, what does that tell us? But if

 

13 they’re able to do that, then we should, of course,

 

14 be able to bring in Dr. Hochman to say he knows

 

15 exactly why she doesn’t tell the truth.

Judge Melville questioned Sanger’s approach by suggesting that perhaps the reason that Janet lied during her JC Penney deposition is because she was afraid to tell the truth about her abuse while she was still living with David. Sanger countered that the prosecution was just exploiting battered woman syndrome and using it to shore up Janet’s laughable and preposterous testimony. He also argued that the battered Woman’s Syndrome doesn’t explain Janet’s lies regarding the sexual abuse that she claimed to have suffered at the hands of the JC Penney security guards, nor does it explain the fact that Janet was actually the abuser in her marriage (Sanger referenced a photo of Janet holding a knife, and stated that he had witnesses who would testify about Janet’s abuse).

Janet Arvizo holding knife

16 THE COURT: Don’t you think there’s

 

17 relevance, without conceding your position, though?

 

18 I’m having trouble with you, just like I am with the

 

19 District Attorney. There’s two areas we’re talking

 

20 about. One area, the claim is that she was the

 

21 victim of abuse by David Arvizo. And as the

 

22 District Attorney pointed out in his argument,

 

23 neither side seems to be — that’s not an area of

 

24 contest in this case. You know, when it occurred,

 

25 and all that, may be, but not that it actually

 

26 occurred.

 

27 So then we have the actual impeachment by

 

28 the defense of her testimony that Mr. Arvizo was 7265

 

1 abusive by you, the defense, bringing in the

 

2 depositions of the J.C. Penney case where she denies

 

3 that he’s abusive. And I don’t want to go into the

 

4 evidence at length, but there was a considerable

 

5 amount of evidence relating to her responses in the

 

6 J.C. Penney case, and then the — you know, the

 

7 final, ultimate statement by her that if she, you

 

8 know, was at the point that he was finally arrested

 

9 and removed from her presence, that she was able to

 

10 go to her attorney and explain some of the untruths

 

11 that she told.

 

12 That’s one area.

 

13 Now, what’s your argument, without drifting,

 

14 please, as to the relevance of her — of expert

 

15 testimony explaining the Spousal Abuse Accommodation

 

16 Syndrome in regard to that issue?

 

17 MR. SANGER: Or Battered Women’s Syndrome.

 

18 THE COURT: Yes.

 

19 MR. SANGER: So, if I’m understanding the

 

20 Court, the — taking the argument — and I

 

21 understand the Court’s advancing for the purpose of

 

22 discussion, taking the argument —

 

23 THE COURT: You’re giving me a discussion,

 

24 yes.

 

25 MR. SANGER: Taking the argument that, while

 

26 the testimony might not be admissible with regard to

 

27 Mr. Jackson and any other conduct associated with

 

28 people at Neverland, the argument may be relevant to 7266

 

1 explain what happened with David Arvizo and why she

 

2 may have lied in the J.C. Penney’s lawsuit.

 

3 THE COURT: Yes.

 

4 MR. SANGER: Okay. First of all, under 352,

 

5 let’s start there, the Court has to make the cut at

 

6 some point on evidence that is going to come in to

 

7 explain what is an issue in the case, but it is not

 

8 the core issue in the case.

 

9 And the Court has made that determination

 

10 with regard to Dr. Hochman, for instance, that we

 

11 cannot bring in what we considered to be probative

 

12 evidence. The Court did not say it was not

 

13 probative. The Court said that you were going to

 

14 exclude it, I take it, in part, on the grounds that

 

15 it would be — I believe the Court said on the

 

16 grounds that we’re not going to have a complete

 

17 trial within a trial on all aspects of it.

 

18 So there does have to be a cut of some sort.

 

19 And it seems to me that’s a place where we can start

 

20 with the discussion. Can they — in a trial where

 

21 Mr. Jackson is on trial for his liberty over what

 

22 these people allegedly did, we’re going to have an

 

23 expert come in, whose testimony should really be

 

24 limited to this very small area.

 

25 Now, I understand if the Court were to do

 

26 that, Mr. Auchincloss would not be allowed, nor

 

27 would anybody on that side be allowed to argue that

 

28 this testimony explains away her perjury in this 7267

 

1 case or her perjury in other respects. But Your

 

2 Honor would propose that somehow the jury be limited

 

3 to that.

 

4 And so under 352, besides the undue

 

5 consumption of time, you have the potential for

 

6 prejudice to this defendant, to whom this witness

 

7 would not apply at all, but the jury would not be

 

8 capable of making that very surgical line, if you

 

9 make a line surgically, but make that line very

 

10 specifically. So it would cause prejudice, and it

 

11 would cause undue confusion to the jury, besides the

 

12 undue consumption of time.

 

13 Now, I want to address the relevance issue

 

14 even more specifically, but I started with 352,

 

15 because I think that really answers the question.

 

16 But going more specifically beneath that, to whether

 

17 or not it’s probative at all on this, Your Honor

 

18 said we don’t dispute that she was abused by her

 

19 husband.

 

20 There’s already been reference to the fact

 

21 that there was a photograph taken of her where she

 

22 was appearing to assault her husband with a knife.

 

23 And she said it was all a game, but I will represent

 

24 to the Court that we have a number of witnesses who

 

25 say that she was the violent one in the marriage,

 

26 and was, in fact, striking not only her husband but

 

27 other family members, and she’s —

 

28 MR. AUCHINCLOSS: I’m going to object that 7268

 

1 this is all irrelevant as to what she — what Janet

 

2 Arvizo is and what she may have done.

 

3 THE COURT: Overruled. Go ahead.

 

4 MR. SANGER: And we have a number of

 

5 witnesses who we could call for that. Whether we

 

6 will call them — I’m representing they’ve been

 

7 interviewed and that’s what they say. Whether we

 

8 will call them is a question of trial strategy and

 

9 tactics, depending on where this all goes, of

 

10 course. And there’s evidence that — well, suffice

 

11 it to say, without going into the detail, there’s

 

12 evidence from third-party witnesses and family

 

13 members to that effect.

 

14 Given that, if the Court allows her to now

 

15 shore up her credibility as to why — sort of a

 

16 strange phrase, shore up her credibility as to why

 

17 she perjured herself —

 

18 THE COURT: That’s a phrase you’ve been

 

19 choosing. I mean —

 

20 MR. SANGER: What the prosecution would be

21 saying — Your Honor argued this for them, I

 

22 suppose, because we’re talking about this narrow

 

23 issue.

 

24 What the prosecution would be saying on this

 

25 part of it, I suppose, is, “Look, of course she lied

 

26 in J.C. Penney’s because her husband’s abused her

 

27 and she’s afraid.” So then when she — when she

 

28 testified, she not only testified that her husband 7269

 

1 never beat her and she loved her husband, and they

 

2 had a hide-away love nest, and there was all these

 

3 other things that went along with that deposition,

 

4 but she also felt compelled to testify that she was

 

5 sexually molested and all the other things that came

 

6 out in that deposition that were just inherently

 

7 preposterous. And they would argue, “Well, she’s a

 

8 battered woman, so she tends to lie about everything

 

9 if she lies about anything.”

 

10 THE COURT: The expert on the Battered

 

11 Women’s Syndrome, doesn’t the expert in that

 

12 situation just explain why a person who’s been the

 

13 subject of abuse might not report it, might not

 

14 report it accurately, might at one time say one

 

15 thing about it and other times about another? That

 

16 explanation doesn’t extend to everything a person

 

17 says thereafter to anybody, does it?

 

18 MR. SANGER: Well, it shouldn’t, but I heard

 

19 Mr. Auchincloss just argue that it does. However,

 

20 focusing on the Court’s argument, the question is

 

21 what would the expert bring to this?

 

22 The expert is not going to be able to

 

23 substantiate the argument that Mr. Auchincloss made,

 

24 and that’s my point. The expert’s not going to be

 

25 able to say that she committed perjury just in

 

26 general because she’s hopeless. The expert can

 

27 simply say there are syndromes where a woman, or a

 

28 man, or anybody that’s subject to a Battered Person 7270

 

1 Syndrome, usually a woman, hence the name, but where

 

2 a person is subject to this syndrome, they are

 

3 beaten down, they’re dependent on the person, they

 

4 feel hopeless. And the theory goes, therefore they

 

5 don’t necessarily avail themselves of conventional

 

6 means to resolve the problem. They tend to go back

 

7 to the person, things that Mr. Auchincloss said are

 

8 common — I won’t adopt them all, but those that I’m

 

9 repeating are common denominators in the expert

 

10 testimony. And that will explain the traditional

 

11 case where, in fact, a woman doesn’t go report it,

 

12 and when asked, after being beaten, says, “No, I

 

13 wasn’t beaten.”

 

14 It just doesn’t explain the facts in this

 

15 case. When I say, “this case,” I mean the J.C.

 

16 Penney’s case. It certainly doesn’t explain

 

17 anything in this case. But in the J.C. Penney’s

 

18 case, it just doesn’t explain the facts that are in

 

19 that case, where she will go in for gain and make up

 

20 a big story about all sorts of things for gain.

 

21 And then remember, Your Honor, she

 

22 doesn’t — it’s not that she’s afraid to report her

 

23 husband. She reports her husband five days after

 

24 they get a settlement by mediation, while they are

 

25 still deciding how the money’s going to be split

 

26 between them. And during the months that ensue,

 

27 they can’t decide, the insurance company files an

 

28 interpleader — I don’t know if they actually filed, 7271

 

1 but stated in correspondence they’re going to file

 

2 an interpleader because they don’t want to have

 

3 anything to do with it. She reports him then for

 

4 sexual abuse. And he finally says, “I give up.

 

5 I’ll just take 5,000 for my divorce lawyer and you

 

6 can have the rest.” And that’s not a battered

 

7 woman.

 

8 THE COURT: You’re really not addressing the

 

9 issue. But —

 

10 MR. SANGER: I’m trying.

 

11 THE COURT: Let me ask you the other

 

12 question.

 

13 MR. SANGER: I’m sorry.

 

14 THE COURT: The area I cut you off on —

 

15 I just wanted to hear the argument related to my

 

16 hypothetical, so I cut you off from arguing why it

 

17 shouldn’t apply, if the expert actually purported to

 

18 be able to apply it to the — a situation outside of

 

19 the marriage or the relationship such as the Michael

 

20 Jackson connection that she has. I’ll let you argue

 

21 that a little bit, because I wouldn’t let you argue

 

22 it.

 

23 MR. SANGER: All right. And not wanting to

 

24 decline that invitation, could I make just one

 

25 closing remark on the other issue?

 

26 THE COURT: If it relates to my question,

 

27 yes.

 

28 MR. SANGER: And I want to tie it to the 7272

1 question. I think that is the question, is Your

 

2 Honor says if it was limited to that issue, I

 

3 suppose the question is how do you limit it to that

 

4 issue? And that’s why I come back to the 352, which

 

5 is if you let in a battered woman expert on that,

 

6 then we have all this other evidence as to whether

 

7 or not she was actually battered, and whether or not

 

8 she was behaving in accordance with a Battered

 

9 Women’s Syndrome, which would open that whole area

 

10 substantially more than the Court, I think, intends

 

11 to have it opened at this point.

 

12 Having said that — that was the point of

 

13 going on about the additional facts with regard to

 

14 that point.

 

15 Having said that, the — the greater

 

16 argument, as it pertains to Mr. Jackson, who, after

 

17 all, is the person we’re representing — we’re not

 

18 taking David Arvizo’s side or not. You know, that’s

 

19 something that either did or didn’t happen. The

 

20 question is whether or not Janet Arvizo is telling

 

21 the truth in this case when she’s accusing Michael

 

22 Jackson and other people at Neverland and elsewhere

 

23 of doing things to her.

 

24 And this syndrome, as it’s typically

 

25 described in the testimony, would have no

 

26 application to this picture, despite Mr.

 

27 Auchincloss’s argument that basically explains

 

28 perjury in general. 7273

 

1 Not only that, we still do not have an

 

2 offer, specific offer of proof or a report of

 

3 anything from a Battered Women’s Syndrome expert.

 

4 And as far as I know, they haven’t elected which one

 

5 of the number that they listed on their list they

 

6 were going to actually call.

 

7 So we don’t know what they’re going to say.

 

8 We have to assume they’re going to say no more and

 

9 probably no less than they generally will say in

 

10 domestic violence cases or cases in which the

 

11 parties, whichever one is the victim of the ultimate

 

12 offense, where the parties are husband and wife or

 

13 boyfriend and girlfriend, and they have that kind of

 

14 a relationship.

 

15 So if they give that kind of testimony, that

 

16 kind of testimony will not apply to this. That

 

17 means that they are expecting to call somebody who

 

18 is either going to say that, and therefore there’s

 

19 no relevance, or they’re going to call somebody

 

20 who’s going to expand on the theory beyond any

 

21 measure upon which it’s been approved to explain

 

22 that somehow this can give an account of what

 

23 happened here for five days.

 

24 THE COURT: Have you ever seen a case where

 

25 it’s been applied, this testimony, to anything other

 

26 than the people involved in the relationship?

 

27 MR. SANGER: I have never seen such a case.

 

28 I have never seen such a case reported. 7274

 

1 And let me just ask very quickly. Did you

 

2 see a report of this?

 

3 MR. DUNKLE: No.

 

4 MR. SANGER: And Mr. Dunkle, who is

 

5 religiously researching some of these things,

 

6 particularly the last-minute motions, has tried to

 

7 read every case there is on all of these things.

 

8 MR. AUCHINCLOSS: If the record could

 

9 reflect, Mr. Dunkle shrugged his shoulders.

 

10 THE COURT: Clearly he said, “No.”

 

11 Right? I heard him absolutely say, “No.”

 

12 MR. SANGER: I’m a battered defense

 

13 attorney.

 

14 THE COURT: The way he was shrugging his

 

15 shoulders was in fright. It was, “Don’t ask me.”

 

16 (Laughter.)

 

17 MR. DUNKLE: That’s correct.

 

18 MR. SANGER: As a battered defense attorney,

 

19 I may not be able to hear him clearly. I guess

 

20 that’s —

 

21 THE COURT: Okay.

 

22 MR. SANGER: The point is, I just don’t see

 

23 how it can apply. If the Court has any other

 

24 questions, I’ll answer them. Otherwise, I’ll submit

 

25 it, Your Honor.

Auchincloss replied with two arguments: the expert testimony wouldn’t be prejudicial to Jackson, and that the Battered Woman’s Syndrome wouldn’t be exculpatory to all of Janet’s lies, but only the ones regarding her denial of abuse at the hands of David Arvizo:

26 MR. AUCHINCLOSS: Two comments.

 

27 THE COURT: I’ll let you make your two

 

28 comments, but let me ask you the same question. Do 7275

 

1 you have any case where this has been allowed or

 

2 used other than between the two parties and the

 

3 typical domestic violence situation?

 

4 MR. AUCHINCLOSS: I don’t have a reported

 

5 case.

 

6 THE COURT: Do you have any unreported case?

 

7 MR. AUCHINCLOSS: Um —

 

8 THE COURT: Oh, you’re not supposed to cite

 

9 those, are you?

 

10 MR. SANGER: Rule of Court 977, but the

 

11 delay answered the question.

 

12 THE COURT: You should have let him make his

 

13 answer and then move to strike.

 

14 MR. AUCHINCLOSS: But the bottom line — one

 

15 of my two important points is, number one, this is

 

16 apples and oranges to Dr. Hochman, who would testify

 

17 specifically about Janet Arvizo. This is not going

 

18 to be testimony about Janet Arvizo.

 

19 THE COURT: No, I understand that.

 

20 MR. AUCHINCLOSS: This is just general

 

21 testimony. Mr. Hochman would testify about

 

22 specifically Janet Arvizo and it’s inadmissible for

 

23 that purpose.

 

24 THE COURT: You’re getting —

 

25 MR. AUCHINCLOSS: Putting that aside, I want

 

26 to make that point, because it’s not prejudicial to

 

27 the defendant. It’s not about the defendant. It’s

 

28 merely some information that the jury can use or not 7276

 

1 use. It’s up to them. If they think it applies to

 

2 this case, no problem. If they don’t think it

 

3 applies, they’re the arbiters. So in terms of

 

4 prejudice, really it’s — all it is is informing the

 

5 jury of the truth about a certain syndrome.

 

6 Secondly, as far as this thing about

 

7 perjury, I’ve never said that this gives her a pass

 

8 to commit perjury. And Battered Women’s Syndrome

 

9 does not provide any exculpation of an individual

 

10 who lies under oath except for the individual who

 

11 lies about their mate. That is the one area, when

 

12 they say, “He didn’t beat me.” When they say, “He

 

13 didn’t do anything.” When they say, “He’s a great

 

14 guy. Oh, he’s a good person. He’s an honest

 

15 person.” When they say those things, that’s where

 

16 they do get a pass, and that’s the only area. And

 

17 that’s what this witness would testify to. And

 

18 that’s why it’s so — it’s so important and so

 

19 probative in this case.

 

20 Thank you.

Judge Melville ruled that he would not allow the prosecution to use their expert witness because its prejudicial value outweighs its probative value, and would confuse the jury.

21 THE COURT: This is an area that has caused

 

22 me a great deal of concern. Probably why I didn’t

 

23 rule on it initially, I wanted to hear all of the

 

24 evidence before making the ruling.

 

25 And I think this type of evidence is

 

26 valuable in domestic violence cases for jurors to

 

27 help understand the dynamics of a particular

 

28 relationship involving violence, but I’m not going 7277

 

1 to allow it in this case. It may or may not explain

 

2 her — or a person’s conduct in a similar case, such

 

3 as the J.C. Penney case, which was not a domestic

 

4 violence case between her and her husband either, as

 

5 this one is. And I think it would be a mistake for

 

6 me to allow that type of evidence on what is a

 

7 peripheral issue in this case, i.e., whether or not

 

8 she told the truth in the Michael Jackson — in the

 

9 J.C. Penney depositions.

 

10 The Court will also find, under 352, that in

 

11 this case the prejudicial effect far outweighs the

 

12 probative value of the information, in that the jury

 

13 might well confuse the purpose of the testimony,

 

14 which would be — the only way I could see it at any

 

15 time would be to explain the relationship of the

 

16 abused and abusing couple.

 

17 And I also think that, under 352, to allow

 

18 the evidence would force the defense to approach the

 

19 abuse in a different area, a different way, which

 

20 would cause an undue use of time and prolong the

 

21 trial unduly.

 

22 So for all those reasons, the Court will

 

23 deny the use of the expert on the Spousal Abuse

 

24 Syndrome.

 

25 The next issue we’ll take up is the

 

26 plaintiff’s supplemental motion for admission of

 

27 additional evidence pursuant to Evidence Code

 

28 Section 1108. 7278

The next issue was the Section 1108 evidence, specifically the admissibility of Kassim Abdool, one of the “Neverland Five” who frivolously sued Jackson for wrongful termination and lost, and was forced to declare bankruptcy after being ordered to pay Jackson’s legal fees, which were $1.4 million dollars. Sneddon felt that his testimony should be admitted because it corroborated Ralph Chacon’s earlier testimony,

1 MR. SNEDDON: Judge, I’ll be brief. I just

 

2 want to correct a couple of misconceptions in the

 

3 response by the defense to this motion.

 

4 Mr. Kassim was on the original witness list

 

5 and has been since the beginning of this trial.

 

6 Secondly, the discovery with regard to Mr.

 

7 Kassim’s statement was provided, along with all the

 

8 other materials, back in October of 2004 of the

 

9 statements that he made to police in 1994 — in

 

10 1994, in May, during the course of the first

 

11 investigation involving Mr. Jackson. These have

 

12 been known to the defense since that period of time.

 

13 With regard to the motion itself, I will

 

14 indicate to the Court that he was not on the list of

 

15 the 1108, because in my view, with regard to the

 

16 observations that he made, as I’ve indicated in the

 

17 brief, they were corroborative of the testimony of

 

18 Mr. Chacon and did not involve the actual seeing of

 

19 any misconduct on the part of any individual. And

 

20 frankly, it didn’t dawn on me that he couldn’t just

 

21 come in and testify to those events. However, when

 

22 the Court asked me to do it and put it in writing

 

23 and defer his testimony, I was more than glad to do

 

24 so.

 

25 But this — so this is not something that

 

26 we’re trying to bootstrap into something we didn’t

 

27 plan to do a long time ago. He’s been on the

 

28 witness list, items have been discovered, and so we 7279

 

1 filed a supplemental motion. And I believe that the

 

2 evidence is probative and is admissible under the

 

3 code section and certainly is — sets a stage and

 

4 corroborates the testimony of Mr. Chacon in terms of

 

5 the fact of the defendant being with the children

 

6 that were mentioned by Mr. Chacon, and the events as

 

7 mentioned by Mr. Chacon, and then the corroboration

 

8 of the incidents by finding the swimming trunks in

 

9 the rest room when he went to turn the lights off

 

10 immediately after the defendant went from that

 

11 position to the house.

 

12 I’ll answer any other questions that the

 

13 Court has, but that was — I wanted to explain those

 

14 differences between our position and the defense’s

 

15 position on the factual issues in terms of what was

 

16 and was not provided.

 

17 THE COURT: Okay. Counsel?

Sanger argued that the prosecution excluded Abdool’s name from their list of 1108 witnesses that they presented to the court in December 2004, and was only being offered to shore up Chacon’s testimony:

18 MR. SANGER: Yes, I don’t know that

 

19 there’s — that there is a dispute, nor did we

 

20 intend to say there was a dispute about what Mr.

 

21 Sneddon said.

 

22 All of the people that they could find in

 

23 the Abdool, Chacon, McManus, Domz and Bagnall vs.

 

24 Jackson case, the civil case, all of those

 

25 plaintiffs were listed as potential witnesses in

 

26 this case on the December 6th witness list, as I

 

27 recall. If it wasn’t that one, it was the one

 

28 shortly thereafter. That was not our complaint. 7280

 

1 Our complaint was that Abdool was not listed in the

 

2 1108 — specific 1108 motion where the government

 

3 spelled out what they intended to prove.

 

4 It has been and continues to be our

 

5 contention that the government is required to turn

 

6 over witness statements of witnesses who talk to the

 

7 government, whether it’s police officers or district

 

8 attorneys. And our concern is that we had reports

 

9 from 1994. We’ve had testimony, of course, from

 

10 this Mr. Abdool in 1996 or .7, and that was

 

11 involving the case I was involved in in representing

 

12 Mr. Jackson, but we don’t have any current reports.

 

13 And it’s just hard to imagine that any of

 

14 these witnesses — and I’m taking just a moment,

 

15 because this applies to other witnesses that will

 

16 come up, that any of these witnesses from times gone

 

17 by would just be called to the stand cold, without

 

18 even so much as a reinterview. So that was our

 

19 concern, so that was what we were trying to express.

 

20 And without anything new, and without

 

21 anything by way of an offer in the original 1108,

 

22 all we have now is the new offer, which is not based

 

23 on declarations, as so many of these motions are.

 

24 They’re just things that are said in the motions,

25 and the government wants to call Mr. Abdool for

 

26 that.

 

27 This goes far afield. The Court was

 

28 limiting the testimony under 1108, recognizing, I 7281

 

1 believe, that 1108 evidence can be very distracting

 

2 to the jury for the same 352 reasons that we’ve

 

3 discussed before, and the Court made an effort to

 

4 limit it, my belief was, to people who saw some

 

5 actual acts or purported to see some actual acts

 

6 that would amount to actual evidence as opposed to

 

7 circumstance and innuendo.

 

8 And not to go on about all the details of

 

9 Mr. Abdool’s testimony and whether or not it’s been

 

10 refuted by his own words, which I can indicate to

 

11 the Court it has been, but aside from that, you’re

 

12 talking about a tangential witness to shore up

 

13 another witness who has testified here, and we’re

 

14 turning the 1108 into more than it should be turned

 

15 into.

 

16 This still remains a balancing act, and the

 

17 Court has discharged that duty to balance by

 

18 attempting to limit the 1108 testimony so the jury

 

19 could hear what might be important to hear for the

 

20 purposes set forth in 1108 and not to allow 1108

 

21 evidence to overtake the significance of the actual

 

22 evidence in this case of guilt or innocence.

 

23 And so I think that expanding it any further

 

24 would be a mistake, and I think it would be — it

 

25 would be harmful, be prejudicial, for all the

 

26 reasons under 352, consumption of time, confusion to

 

27 the jury, and prejudice to the defendant.

 

28 Thank you. 7282

Sneddon replied it wasn’t prejudicial or used to shore up Chacon’s testimony, but it was corroborative, and the fact that Abdool later sued Jackson doesn’t discredit what he claimed to witness:

1 MR. SNEDDON: Your Honor, I just want to

 

2 make one comment and I’ll — with regard to Mr.

 

3 Sanger’s position.

 

4 I think that the — there’s three incidents,

 

5 and I tried to be specific about the incidents

 

6 involved in the offer of proof. And clearly, my

 

7 take on it, and has been from the beginning, that

 

8 the first two incidents that really frankly involve

 

9 relevancy issues more than anything else, and that

 

10 they are like having multiple people see the same

 

11 events and you’re allowed to call people in to

 

12 testify to certain portions of what they saw during

 

13 the course of those events.

 

14 Clearly, I think the third incident is one

 

15 that is more akin to the 1108 and 1101 kind of

 

16 evidence that’s been before the Court. But clearly,

 

17 I think the first two incidents are ones that are

 

18 more, in the sense, relevant because they

 

19 corroborate Mr. Chacon as to significant events that

 

20 he’s testified to in this case.

 

21 And there’s been a — an attempt by the

 

22 defense to claim that this evidence was fabricated

 

23 based upon his involvement in later suing Mr.

 

24 Jackson. And I think in fairness to Mr. Chacon,

 

25 when there’s a witness out there who can testify

 

26 that he was also there that night and he also saw

 

27 the same things that Mr. Chacon saw, in terms of the

 

28 setting for the event and placing Mr. Jackson with 7283

 

1 the child at the time that Mr. Chacon says, that

 

2 that’s highly relevant evidence that this jury

 

3 should be presented with.

 

4 So I think there’s a difference in the basis

 

5 for which the first two incidents would be

 

6 admissible as opposed to the third.

 

7 And I’ll submit it.

 

8 THE COURT: You know, I want to take a couple

 

9 of minutes to read the briefs again on this. I’ll

 

10 take a five-minute recess.

Judge Melville denied Sneddon’s request to allow Abdool to testify about the third incident of alleged abuse that he claimed to have witnessed in Jacskon’s bedroom, but he did allow the first two alleged incidents of abuse that Abdool claimed to witness (in the bathroom, and the hug).

11 (Recess taken.)

 

12 THE COURT: What department is this? Where

 

13 are we?

 

14 (Laughter.)

 

15 THE BAILIFF: 8.

 

16 THE COURT: Okay. On this plaintiff’s

 

17 motion for admission of additional evidence pursuant

 

18 to 1108 and 1101(b), I am going to deny the request

 

19 to allow the — what I’ll refer to as the bedroom

 

20 incident, which is your third incident.

 

21 I think I will allow the evidence relating

 

22 to the — what you call the bathroom incident, the

 

23 swimming trunks. And the second one, the hug, that

 

24 will be allowed under 1101.

The next issue was the admissibility of defense witnesses who would deny ever seeing Jackson abuse children. Judge Melville was concerned about allowing irrelevant character witnesses to the case, so he asked Sanger to advise him on what his proposed witnesses would say. Sanger replied that the character witnesses would rebut the prosecution’s 1108 witnesses who claimed to have seen inappropriate behavior more than a decade ago, and to rebut their claims that children always ran amuck and unsupervised at Neverland.

25 Then the next item on the Court’s agenda is

 

26 the admissibility of certain testimony of several of

 

27 the defense proposed witnesses.

 

28 I have a way of sort of streamlining this 7284

1 one. I can’t tell how to rule without knowing why

 

2 you would offer a certain witness in what regard.

 

3 This is evidence that what you want to do is produce

 

4 employees who will declare that they never saw Mr.

 

5 Jackson touch a child inappropriately or something,

 

6 you know, some type of evidence. And it’s,

 

7 generally speaking, negative evidence, you know. We

 

8 can call a million people who never saw him do that.

 

9 But if there’s some way of advising me and the

 

10 prosecution in advance that a particular witness was

 

11 in a particular situation, it makes that not seeing

 

12 something germane, then we have a different

 

13 situation, right? Do you understand what I’m

 

14 saying?

 

15 MR. SANGER: Yes.

 

16 THE COURT: If you could give me the facts as

 

17 to a — I don’t know, maybe it would be a situation

 

18 where the District Attorney had a witness that said,

 

19 “I saw such and such happen,” and you had a witness

 

20 that was there in the vicinity that didn’t see such

 

21 and such happen, then that becomes relevant.

 

22 MR. SANGER: Yes.

 

23 THE COURT: Does my streamlining really

 

24 work?

 

25 MR. SANGER: No, it didn’t work, Your Honor.

 

26 THE COURT: All right.

 

27 MR. SANGER: I’m here to prove that point.

 

28 THE COURT: Go ahead. 7285

 

1 MR. SANGER: No, I understand what the

 

2 Court’s saying.

 

3 Certainly that streamlined version — I

 

4 think there’s no question — if they say at eleven

 

5 o’clock in the morning on the 1st of whatever,

 

6 somebody was standing outside the theater and

 

7 something untoward happened, and we have an

 

8 employee, for instance, who was working in that

 

9 vicinity at eleven o’clock and was vigilant, and we

 

10 can say he was looking around and he never saw any

 

11 such thing happen on that particular day, clearly

 

12 that’s relevant. I mean, that wouldn’t be a

 

13 question. So to the extent it’s streamlined to that

 

14 extreme, I mean, obviously —

 

15 THE COURT: That’s an extreme situation.

 

16 MR. SANGER: But I think that the kind of

 

17 evidence that we are talking about is much more —

 

18 is much broader than that. There will be evidence

 

19 of that sort. But there’s also evidence of people

 

20 who, for instance, worked at the park, the amusement

 

21 park, saw children on a regular basis, saw Michael

 

22 Jackson with children on a regular basis, some of

 

23 whom saw the Arvizo children, some of them who did

 

24 not see the Arvizo children, per se. They may have

 

25 seen them, but they didn’t see anything particular

 

26 with regard to those children one way or another,

 

27 but were able to say that they have seen Mr. Jackson

 

28 on a regular basis with children and never seen him 7286

 

1 do anything inappropriate. There are also people

 

2 who would say that they did not see children who

 

3 were —

 

4 THE COURT: Do you think that’s character

 

5 testimony? Now you’re having people testify to a

 

6 trait of character. Do you want to put his

 

7 character in issue for the trait of, you know,

 

8 whatever?

 

9 MR. SANGER: Well, in essence, his character

 

10 has been put in issue and that was part of what we

 

11 briefed. 1108 evidence is — the way 1108 is

 

12 written and the way it’s been interpreted, although

 

13 we have thought — I say “we.” You know, the

14 defense bar in general and a lot of legal scholars

 

15 have thought that it really went overboard. It’s

 

16 been interpreted as propensity evidence. That’s

 

17 character evidence. If they’re allowed to introduce

 

18 some evidence of some events from 12, 13, 15 years

 

19 ago for the purpose of showing propensity, which is

 

20 what 1108 allows, we should be able to counter that

 

21 by saying, no, there is no propensity.

 

22 And when they’ve been allowed to introduce

 

23 evidence of children running amuck, this is not

 

24 character as to Mr. Jackson, but you’ve heard the

 

25 testimony elicited by the prosecution that there are

 

26 children running amuck and totally unsupervised and

 

27 out of control. Some witnesses say that. And other

 

28 witnesses say, other than particular children, like 7287

 

1 the Arvizos, for instance, children were not running

 

2 amuck, there was supervision, a certain amount of

 

3 decorum. I think those are relevant. That’s not

 

4 character evidence as to Mr. Jackson. That is —

 

5 that is evidence that’s directly offered to refute

 

6 the evidence that was put in by the prosecution.

 

7 So if we take those two different categories

 

8 and talk about those — let’s take the last one

 

9 first. Let’s assume — let’s assume we put on a

 

10 witness who worked at the ranch in the public areas

 

11 and saw children on a regular basis and said, “I’ve

 

12 seen children on a regular basis there. I have not

 

13 seen any children under the influence of alcohol.

 

14 I had the opportunity to observe.” Of course there

 

15 could be a foundation objection. But assuming that

 

16 there is a foundation, survives that, they have an

 

17 opportunity to observe and they say, during the

 

18 relevant time periods, “I saw dozens, hundreds of

 

19 kids,” whatever it is, “and nobody was under the

 

20 influence,” that’s evidence we should be allowed to

 

21 present, because it directly refutes evidence that

 

22 was presented by the prosecution.

 

23 If we have evidence that — so that’s that

 

24 category, and I think that’s pretty simple.

 

25 If we have evidence with regard to Mr.

 

26 Jackson behaving appropriately with children and

 

27 providing — you know, not doing anything

 

28 inappropriate in his contact with them, that 7288

 

1 counters the 1108 evidence, the propensity evidence.

 

2 THE COURT: Well, I think what I’ll do is

 

3 I’ll let you — what I would do is let you, as to

 

4 each witness – and we’re not going to do it now, but

 

5 either in through some written paragraph or through

 

6 some offer of proof before they’re called – tell me

 

7 the basis, because I see some of those, but, you

 

8 know, the example you just gave me, an employee who

 

9 worked in the area of — observed all these

 

10 children, never saw any of them drinking, you know,

 

11 if you had the ability and it was an area where they

 

12 would be seen if they were drinking, you know, then

 

13 I think I could — I would go along with that

 

14 employee. But, you know, if he’s a ranch hand and

 

15 comes in and out of the ranch occasionally and says

 

16 he never saw anyone, we’re starting to talk about

 

17 people who wouldn’t have an opportunity.

 

18 MR. SANGER: And that would be a foundation

 

19 issue.

 

20 THE COURT: So I think I need a better — and

 

21 I would allow the D.A. to address each one, too.

 

22 It’s not just showing me, but — the general scheme

 

23 of things, there has to be something specific here

 

24 to make it relevant. Just plain negative testimony

 

25 isn’t going to get it.

 

26 MR. SANGER: I understand.

 

27 So what the Court is saying, we have to show

 

28 a foundation for the observation; that if the 7289

 

1 foundation is that there’s adequate opportunity to

 

2 observe and that it’s relevant to the area or the

 

3 time period.

 

4 THE COURT: Yeah. Something that makes the

 

5 fact they didn’t see it relevant.

 

6 MR. SANGER: Right.

 

7 THE COURT: Which is — and I think your

 

8 alcohol example is a good example of something that

 

9 I would allow.

 

10 MR. SANGER: All right. And — and I don’t

 

11 want to argue with the Court, and I’m not, but as

 

12 far as —

 

13 THE COURT: And just like you’re not supposed

 

14 to talk over there by the witness stand, so you

 

15 always remind yourself of that right before you

 

16 start talking.

 

17 (Laughter.)

 

18 THE COURT: That saves me from reminding you.

 

19 (Laughter.)

 

20 MR. SANGER: It provides a warning,

 

21 actually.

 

22 THE COURT: Yes. Could I go direct to

 

23 contempt from there? Or — go ahead.

 

24 (Laughter.)

 

25 MR. SANGER: Well, I’m just a little

 

26 concerned that we’re sort of in the position of

 

27 having to make an offer of proof on all these

 

28 defense witnesses. 7290

 

1 THE COURT: Just the ones relating to the

 

2 negative testimony.

 

3 MR. SANGER: Yeah. And there may be — I

 

4 mean, we’ll have witnesses who’ll have percipient

 

5 testimony on very particular things for which there

 

6 would be no question. And they might also say

 

7 something like that. It puts us in a position of

 

8 just about every witness that worked at the ranch

 

9 that we’re going to call, because we’re not going to

 

10 call people that spent their entire time up at the

 

11 administration building or over at the zoo —

 

12 THE COURT: I don’t think it’s burdensome to

 

13 ask you to give me less than a paragraph. Just

 

14 something.

 

15 MR. SANGER: Not overburdensome to me, but

 

16 Mr. Dunkle, he’s young, so he can take it. I say

 

17 that facetiously. If the Court requires it,

 

18 obviously we’ll do it.

 

19 THE COURT: I think I do.

Sneddon countered by saying that the defense was trying to use what is called “lay opinion”, which is defined as “opinion given by a witness who is not qualified as expert but who testifies to opinions or inferences”.

Sanger replied that their character witnesses were not offering lay opinion or character evidence, but rather factual evidence. Judge Melville decided that he would rule on it at a later date:

20 MR. SNEDDON: Judge, can I have 30 seconds

 

21 on this issue?

 

22 THE COURT: Well, I thought you were winning,

 

23 but if you want to —

 

24 MR. SNEDDON: No, I’m winning, but I want to

 

25 make something very clear that I think needs to be

 

26 very clear on the record on this issue that may have

 

27 not been clear from Mr. Sanger’s remarks, but what’s

 

28 abundantly clear from the Court. 7291

 

1 I couldn’t agree more with the Court, and I

 

2 couldn’t agree more based upon the defense’s own

 

3 case, the Calpine case. That if they attempt to put

 

4 people on the witness stand to testify to Mr.

 

5 Jackson not — not seeing Mr. Jackson molest some

 

6 kid, that is opinion — lay opinion testimony of

 

7 character and opens the door for us to do the

 

8 have-you-heards.

 

9 And I want to make it clear now, so that —

 

10 so they don’t say I’m doing something different

 

11 later, that’s not — that has nothing to do with

 

12 1101 or 1108. That’s for everything that contests

 

13 the credibility of that witness’s lay opinion with

 

14 regard to Mr. Jackson’s character trait for deviancy

 

15 or nondeviancy. And so I just want to make it clear

 

16 today that if that’s where they go, that’s where

 

17 we’re going.

 

18 MR. SANGER: I want to make it clear that

 

19 that’s not clear, because what Mr. Sneddon said was

 

20 lay opinion. If you bring somebody up to talk about

 

21 an opinion, that’s one thing. But if you say, “Did

 

22 you see specific conduct during the relevant time

 

23 period,” that’s not opinion as to character. And

 

24 when we talked about 1108 being a type of character

 

25 evidence, it is propensity evidence. It’s not

 

26 opinion.

 

27 THE COURT: It’s not character evidence

 

28 under the legislative approach. 7292

 

1 MR. SANGER: That’s correct.

 

2 THE COURT: It is propensity evidence, and

 

3 it’s an unusual statute, and California is one of

 

4 the few states that has it. But it’s been held

 

5 constitutional, and we go by it.

 

6 MR. SANGER: And there it is.

 

7 THE COURT: But it’s not character evidence.

 

8 MR. SANGER: I mean, I was speaking in

 

9 general terms. When you respond to propensity

 

10 evidence, which says there was conduct that

 

11 occurred, and you respond by showing that there is

 

12 conduct that is inconsistent with that, that is not

 

13 a lay opinion that’s offered as character evidence.

 

14 So Mr. Sneddon getting up making the remarks, it was

 

15 welcome, because if there is any question —

 

16 THE COURT: I think he was responding to

17 your — you argued more broadly than I think you

 

18 performed. In other words, you argued, “Well,

 

19 Judge, 1108’s character evidence, so we can put on

 

20 character evidence.”

 

21 MR. SANGER: Yes.

 

22 THE COURT: That’s what you argued.

 

23 MR. SANGER: That’s why I say, I welcome

 

24 that, because when I was saying it, I didn’t mean

 

25 it —

 

26 THE COURT: I was just tipping you off, you

 

27 know.

 

28 MR. SANGER: Well, there you go. 7293

1 But in any event, just so we’re clear —

 

2 THE COURT: Okay.

 

3 MR. SANGER: — Your Honor, it is not

 

4 character evidence. This is our position. It’s not

 

5 character evidence to bring in specific acts.

 

6 THE COURT: You’re telling me that you’re not

 

7 going to offer character evidence.

 

8 MR. SANGER: That’s correct.

 

9 THE COURT: All right.

 

10 MR. SANGER: And if we do, we will and we’ll

 

11 let you know. But what we’re talking about here is

 

12 not character evidence.

 

13 THE COURT: Now you’re telling me you might

 

14 offer character evidence.

 

15 MR. SANGER: Speaking as the — as a member

 

16 of a group, we have to decide at some point, and

 

17 if — in other words, to be serious about it —

 

18 THE COURT: I won’t hold you to anything.

 

19 Don’t worry about that.

 

20 MR. SANGER: Okay. If we introduce

 

21 character evidence, it will be of a different

 

22 character.

 

23 THE COURT: I think the discussion just got

 

24 way off track on the character evidence issue, and I

 

25 think I probably started it.

To be continued: https://michaeljacksonvindication2.wordpress.com/2013/09/30/april-21st-2005-trial-analysis-brian-barron-cross-examination-stephen-cleaves-timothy-sutcliffe-timothy-rooney-steven-moeller-jeff-klapakis-cynthia-montgomery-part-4-of-4/

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