CL711 Evidence II

Module 9: Oral Argument Assignment Instructions

The Assignment involves preparing for and delivering a ten (10) minute oral argumentin response to a motion in limine filed by the defense in the MOCK criminal case, United States v. Fendant.

Read and review the testimony

BILLER MARONDESS LLP By: Louis "Chip" Biller (State Bar No. 01691) N 1999 Orion Avenue, 10" Floor Sunshine, California 90003 W 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF CALIFORNIA CASE NO. MHP CR-18-0112 UNITED STATES DEFENDANT'S MOTION IN LIMINE V. NO. 2 TO STRIKE TESTIMONY OF 10 DR. DION FENDANT, RESERVE OFFICER TANNER BLAKE AS VIOLATIVE OF THE BEST EVIDENCE RULE, FED. R. EVID. 1002 U Defendant [MODULE 9 ASSIGNMENT PROMPT - 12 PART II] 13 14 Action Filed: January 3, 2018 15 16 17 18 19 20 21 22 23 24 25 26 27 2810 11 12 l3 14 15 16 l7 18 19 20 21 22 23 24 26 27 28 INTRODUCTION Reserve Officer Tanner Blake (\"Blake\") ostensibly viewed a surveillance video that he claims shows the defendant, Dr. Dion Fendant (\"Dr. Fendant\"), sexually assaulting Victoria Timm (\"Timm\") in Dr. Fendant's ofceobviously, the central issue in this case. (See Transcript (\"Tr\") at 2:2123.) However, rather than produce the surveillance video itself to prove its contents, the prosecution is offering only Blake's oral testimony about his recollection of the video's supposed contents. This is a clear violation of the best evidence rule, Fed. R. Evid. 1002. Although the prosecution will undoubtedly claim that their failure to produce the video is excused by the fact that the video was destroyed by a third party, this claim utterly fails: it was the police department's own gross negligence that led to the video's destruction, when it could have easily been preserved. Because the defendant would be grossly prejudice by permitting Blake's0r anyone else'stestimony about the video's supposed contents, all such testimony must be stricken. A RG U M E NT 1. Bad Faith in Failing to Secure Original Evidence That Falls Short of Intentional Destruction Precludes Admission of Secondary Evidence Federal Rule of Evidence 1002 is the codification of the so-called \"best evidence rule,\" which expresses a strong preference for producing tangible evidence to prove the contents of such item. It provides: \"An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.\" Fed. R. Evid. 1002. There are limited exceptions that allow secondary evidence to be introduced to prove the contents of the original in certain circumstances. Pertinent here is Rule 1004(a), which provides: \"An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: all the originals are lost or destroyed, and not by the proponent acting in bad fait .\" Fed. R. Evid 1004(a). See also US. v. Loud Hawk, 628 F.2d 1139, 1146 (9th Cir. 1979) (\"When the government loses or destroys tangible evidence prior to trial, a motion to suppress secondary evidence such as photographs, testimony of witnesses, etc., will be granted by the trial court if the defendant can show (1) bad faith or connivance on the part of the government, and (2) that he was prejudiced by the loss or destruction of the evidence\"). 1 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 Courts have held that \"bad faith\" can be met even by showing negligence that falls short of intentional destruction of evidence. See US. v. Higginbotham, 539 F.2d 17, 21 (9th Cir. 1976) (\"[T]he following factors should be considered: (1) the degree of negligence or bad faith involved, (2) the importance of the lost evidence, and (3) the sufficiency of the other evidence adduced at the trial to sustain the conviction\") (emphasis added); Load Hawk, 628 F.2d at 1148-49 (citing United States v. Trenary, 473 F.2d 680 (9th Cir. 1973) (\"There being no charge ofbad faith or negligence by the United States, secondary evidence was admissible at the trial\") (emphasis added). Indeed, even in civil cases, where only money, and not the defendant's liberty, is at stake, courts have refused to admit secondary evidence where the proponent failed to show that they had acted with reasonable diligence to preserve the original. See, e.g., Sylvania Elec. Products, Inc. v. Flanagan, 352 F.2d 1005, 1008 (l51 Cir.l965) (\"[S]econdary evidence of the content of the original is not admissible unless the proponent of the testimony shows that a reasonable and diligent search has been made for the original without success\"); Cartier v. Jackson, 59 F.3d 1046, 1048 (10th Cir. 1995) (Plaintiff \"unsuccessfully tried to contact many of the record companies that had received her demo tapes. Neither she nor her attorneys tried to compel any of these record companies to respond to her requests. The evidence presented to the court can be read to support the judge's conclusion that Ms. Cartier did not make a diligent effort in trying to obtain copies ofthe demo tapes. Thus, we nd the district court did not abuse its discretion in excluding the secondary evidence\"). If this is the standard in civil cases, the requirement of diligent efforts at preservation should be at least as strong in civil cases. Even if the police did not directly destroy the surveillance tape, or intentionally participate or acquiesce in its destruction by a third party, their negligence in failing to take reasonable steps to preserve it can constitute \"bad faith\" that precludes admission of secondary evidence in its place. ARGUMENT II. The Police Acted in Bad Faith in Allowing the Destruction of the Video Blake's failure to take any steps, let alone reasonable ones, to preserve a videotape that the prosecution claims shows the alleged sexual assault in question is the very paradigm of gross negligence, constituting \"bad faith\" that should preclude admission of secondary evidence ofthe 2 10 11 12 l3 14 15 16 l7 18 19 20 21 22 23 24 26 27 28 videotape's contents. Blake must have been acutely aware that this evidence would be pivotal to a trial. The alleged victim claimed the sexual encounter was entirely involuntary. If there was to be a trial, it would necessarily be because the defendant either denied engaging in the conduct or, as happened here, denied that it was nonconsensual. Sexual assault trials often come down to a \"he said\"/\"she said\" between the alleged victim and perpetrator. It is exceedingly rare that there is videotape of the actual encounter that will conrm one of the two accounts. If there was ever physical evidence that the government would be obligated to take steps to secure, it would be this videotape. And yet, not only didn't Blake succeed in preserving it, neither he nor anyone else within the police department lifted a nger to try to secure it, until it was too late. Blake claims that the tape was destroyed in the ordinary course aft4er 30 days by the management of the building in which defendant's medical ofce is located. (Tr. at 4: 13-16). However, that means that for a full month, the police did nothing to try to secure a videotape that they knew, within 36 hours ofthe incident, recorded the incident itself. (In fact, Blake testied that it wasn't until a \"couple of months\" after the incident that he even discovered that it had been destroyed. Id.) The police department's excuses for failing to preserve the video would be laughable, were their potential impact in this case not so tragic. Blake claims when he was told that he would have to return to the building during business hours when the manager was there, he did not do so because he \"normally work[s] nights\" and \"would have had to go when I was off-duty.\" (Tr. at 4:5-6.) It is outrageous that Blake would refuse to followup while off duty to preserve evidence of one of the most serious crimes imaginable%rape. Indeed, his claim that this was the reason is belied by the fact that he admitted interviewing other witnesses during the day, when he was presumably off-duty. (Tr. at 4:7). And of course, Blake is not the only ofcer with the police department. If Detective Rawlson could engage Blake to go down to view the surveillance video that night, surely he could enlist some other ofcer who worked during the dayor simply go down the building himself (which he had already visited the day before (see Tr. at 1:16)to follow up on Blake's initial visit. Blake claimed during this testimony that the reason no other ofcer was available for a followup visit was that there was a \"spate ofhome invasion robberies,\" as well as a \"series ofgang 3 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 26 27 28 related shootings,\" so \"everyone\" in the department was \"basically maxed out.\" (Tr. at 4: 10-12.) While homicide and burglary are undoubtedly serious crimes, so is rape. That not a single officer from the entire department could take a couple of hours out of their day to secure critical evidence of a rape because they were \"basically maxed out\" investigating other crimes is offensive, and is further evidence of their bad faith in failing to secure the original video. Perhaps most galling of all is that not only did no one from the police department go back to the building to obtain a copy of the surveillance tape, but apparently no one even verbally told the security guard or building manager (much less used court processes to compel them) to preserve the video that they knew by that point would be critical evidence in a prosecution or trial. Cf. Sylvania, 352 F.2d at 1008 (informal efforts to locate evidence insufficient to demonstrate diligence). It also appears neither Blake nor anyone else asked the security guard or building manager what their standard write-over policy was, such that they would have known of the deadline to obtain a copy. There is simply no excuse for this kind ofpervasive and shocking negligence in failing to secure the original evidence. The government should not be rewarded by their own lack of diligence by being permitted to offer Blake's testimony regarding the contents of the destroyed video. 11. Defendant Would Be Unfairly Prejudiced by Admission of Blake's Testimony About the Surveillance Video's Contents Not only is the government at fault for failing to preserve the original, but defendant would be severely prejudiced by allowing Blake's testimony about the supposed contents to stand. See Loud Hawk, 628 F.2d at 1146 (requiring showing that defendant was \"prejudiced by the loss or destruction of the evidence\"). Blake had never met or seen Dr. Fendant or Ms. Timm, nor had he personally viewed the office, when he saw the video, and so was unable to affirmatively testify that it depicted those people in that location. (Tr. at 31314.) Hoe could give only a generic description of the man depicted regarding his general age, height, weight, and race. (Tr. at 3:16-17). He was relying entirely on the security guard to even know he had requested the right location and time. For this reason alone, questions abound regarding the reliability of Blake's testimony about what the video showed. Compare US. v. Maxwell, 383 F.2d 437, 442 (2d Cir. 1967) (permitting secondary evidence in place 4 10 11 12 l3 14 15 16 l7 18 19 20 21 22 23 24 26 27 28 of destroyed original evidence where accuracy of secondary evidence was not challenged). The defense is prejudiced because they are unable to crossexamine Blake about the particulars. So, too, Blake testied that it showed the man \"essentially pinning her down on the examination table\" (Tr. at 2:21-22), and \"assaulting\" her (Tr. at 3:16). But these are conclusions, not facts, and ambiguous ones at that: what does it mean to \"essentially\" pin someone down? Numerous sexual encounters may involve some amount of physical force, and not necessarily involve a lack of consent. But rather than have the benet of the tape itself, so that the defenseand the jurycan see and interpret the images for themselves, we are confined to a police ofcer's \"take\" on the presence or absence of consent involved in the encounter. The testimony is particularly troubling because it comes from a police ofcer. On the one hand, the police are hardly unbiased, as they are on the side of the government. On the other hand, the public by and large respects the police, and so the jury may tend to give Blake's testimony about the videotape's contents more weight than it necessarily deserves. And of course, if the j ury credits Blake's testimony about the videotape's supposed contents, it will be extremely difcult for the defense to avoid a conviction, no matter how credible his account (should he testify), and no matter how much damage is inflicted on the credibility of the alleged victim or other witnesses. In short, to allow the government to exhibit gross negligence in failing to take the simplest steps to secure essential evidence, and then benet from that incompetence by allowing an ofcer to relate his secondary account of the contents of that evidence, would turn due process on its head. CONCLUSION For the foregoing reasons, the defense respectfully requests that the Court strike Blake's testimony in its entirety, and preclude all other testimony about the contents of the destroyed surveillance video. DATED: , 20_ BILLER MARONDESS LLP By:_/s/ Louis Biller Louis \"Chip\" Biller U'I FROM PROSECUTION'S DIRECT EXAMINATION OF OFFICER TANNER BLAKE N Q. Would you please introduce yourself to the jury? W A. My name is Tanner Blake, I've been a local reserve officer with the Los Oranges Police Department the last three years. A U Q. Did you have any involvement with the investigation of an alleged incident that occurred at the medical offices of Dr. Dion Fendant on or about December 1, 2017? a A. Yes, Detective James Rawlson, the lead investigator on the case, called me on the evening of December 2, 2017 and told me that Victoria Timm had alleged that she was sexually assaulted by Dr. Fendant during an appointment at his office the day before. 9 Q. Did Detective Rawlson instruct you to do anything in particular in connection with the case? 10 A. Yes, he wanted me to see if there was any surveillance evidence. I tried to contact the owner of the professional building in which Dr. Fendant's office is located. He was unavailable, but I spoke to 11 the night security guard, who explained to me that before Dr. Fendant had moved into that space, it had been leased by a diamond dealer, and so apparently security cameras were embedded in the 12 upper corners of each of the rooms in the office. 13 Q. Including the examination room where Ms. Timm said she was raped? 14 A. Yes. 15 Q. Did the security guard tell you if the security cameras in the office were operational? 16 A. Yes, he said the building still maintained those cameras. 17 Q. Did he say if Dr. Fendant was aware that his office was being filmed? 18 A. He said he had never told Dr. Fendant, and to his knowledge, no one else ever had either. 19 20 Q. Did you ask to see the surveillance video from Ms. Timm's final visit? 21 A. Yes, I did. The security guard pulled up the video from the time of Ms. Timm's visit on December 1. It showed Dr. Fendant pulling her pants down, essentially pinning her down on the 22 examination table, and forcing himself on her. Then he finished, and Ms. Timm collected her things and hurried out. 23 Defense counsel: Objection, move to strike as non-responsive. I'd like to take the witness on voir 24 dire. 25 Judge: Go ahead, counsel. 26 27 28 2FROM DEFENSE'S VOIR DIRE OF OFFICER TANNER BLAKE Q. This security footage that you say you saw, was it in color or black and white? A. Color. W Q. Did you ever go inside Dr. Fendant's office? 4 A. Not personally, no. 5 Q. Did you ever speak with Dr. Fendant? 6 A. No, I believe Detective Rawlson did. 7 8 Q. But you, yourself, did not? 9 A. No, I did not. 10 Q. Had you ever even seen Dr. Fendant in person prior to testifying in court today? 11 A. No, I hadn't. 12 Q. And had you ever even seen Miss Timm before? 13 A. No, I hadn't. 14 Q. So when you supposedly saw this tape of a sexual assault occurring, you didn't actually know 15 that it was showing Dr. Fendant assaulting Miss Timm, did you? 16 A. Well, I saw a white male who looked to be in his forties, brown hair with some gray in it, looked to be maybe five-foot-nine or so, maybe 175, 180 pounds, assaulting a younger woman on his 17 examination table with an X-ray machine nearby. That's what I can say I saw. . . . 18 Q. This surveillance video that you claim you reviewed, did you ever produce it to the defense? 19 A. I didn't. I don't believe anyone else did. 20 Q. Do you have it here today to show the jury? 21 A. No. 22 Q. Did you obtain a copy of the surveillance video? 23 A. No. 24 Q. Did you ask for one? 25 A. Yes, I requested a copy from the night security guard. 26 Q. And what was his response? 27 28 wJibilk} W's-JONU'I OKD 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 23 A. He told me that I would have to come back the next day when the owner of the building was there, and that the owner would be able to make me a copy. Q. Did you go back the next day to speak to the owner? A. No. Q. Why not? A. I normally work nights. That's when most crimes occur. So for me to go back the next day, I would have had to go when I was off-duty. The department would have had to pay me overtime for that, and they were trying to cut back on that. Q. Did you interview other witnesses in this case during the day? A. Yeah, and the department wasn't too happy about that. Q. Did you request any fellow ofcers who worked day shifts to retrieve a copy of the video? A. Not at the time. We actually had a spate of home invasion robberies in the neighborhood, plus a l series of gang-related shootings, and so everyone in the department was basically maxed out, and no one had time. It was bananas. Q. Did you ever make any efforts to obtain a copy of the Surveillance tape? A. Yeah, after a couple of months, after things nally calmed down at the station, I requested a fellow ofcer go down and fetch a copy of the tape. It turned out that the building had a standard policy of writing over the tapes every 30 days, and so the video from the date of the incident was already erased in the ordinary course. Q. So as a result of that, the only evidence we have of what the tape contained is your say so? A. Yes, I guess so. But I saw whatI saw. Defense counsel: Your Honor, at this time I renew my motion to strike the witness' testimony about the surveillance tape as violating the best evidence rule, and further move to preclude any further testimony on the matter. Judge: Okay, let's recess for the day. Defense counsel, ['1] entertain a brief on the motion when we resume. In the interest of moving the trial along, I'll probably just have the prosecution respond with argument rather than wait for a responsive brief. UNITED STATES CASE NO. MHP CR-18-0112 V MODULE 9 ASSIGNMENT PROMPT - PART I DR. DION FENDANT, A Defendant U a J From the Prosecution's Case-In-Chief 8 9 FROM PROSECUTION'S DIRECT EXAMINATION OF DETECTIVE JAMES RAWLSON 10 . . . Q. How did you become involved in this case? 11 A. I received a call from the rape trauma center at the local hospital, located just off the base. They indicated that there had been a sexual assault and needed police assistance. I responded to the location 12 and contacted the victim, Victoria Timm. . . . 13 Q. What did she tell you? 14 A. She said, "That bastard raped me!" . . . 15 Q. What did you do next? 16 A. The next day around noon, I went to Dr. Fendant's office and met with a receptionist, a Randy Anderson, and told him I was looking for the doctor. 17 Q. What did he say to you? 18 A. He indicated that the doctor would be returning to the office after lunch. 19 Q. What did you do next? 20 A. With Mr. Anderson's permission, I looked around the office. I made a sketch of the layout of the 21 office, including the exam rooms. I remember that one of them had an X-ray machine in it. As I exited the location, I ran into Dr. Fendant. . .. 22 Q. Do you recognize the man you spoke with that day here in the courtroom today? 23 A. Yes, he's the man sitting over at defense counsel, Caucasian, looks to be early to mid-40's, brown hair 24 graying at the temples, probably about 5 foot 8, 170 lbs., dark suit with a red tie. 25 Q. May the record reflect that the witness has identified the defendant, Dr. Dion Fendant. . . . 26 27 28