INNOCENCE LEGAL TEAM __, SBN __ 1600 S. Main Street, Suite 195 Walnut Creek, CA 94596 Tel: 925 948-9000 ext 102 Cell: 408 391-4700 Email: clancy@innocencelegalteam.com SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF __ THE PEOPLE OF THE STATE OF CALIFORNIA Plaintiff, vs. Defendant name(s), Defendant Case No.: Motion to Exclude Post Molestation Symptoms of Alleged Victim (Victim Impact Evidence) Date: Time: Dept: The defendant moves for a protective order that the alleged complainant’s post-molest symptoms not be admissible in evidence. These symptoms include but are not limited to: (insert symptoms revealed by the facts of the case if known) I THE PROSECUTION MAY NOT INTRODUCE THE VICTIM’S POST-MOLESTATION BEHAVIOR AND STATEMENTS TO PROVE AN ALLEGED MOLESTATION ACTUALLY OCCURRED. Opinion testimony on rape trauma syndrome and Child Abuse Accommodation Syndrome is inadmissible to prove that an alleged victim was sexually attacked but may, in keeping with certain narrow parameters, be admitted to support the credibility of a witness. (People vs. Bledsoe (1984) 36 Cal.3d 236, 203 Cal. Rptr. 450; In re Sara M. (1987) 194 Cal.App.3d 585. Thus, it is improper to prove that a crime had occurred based on symptoms that the alleged victim exhibited post-crime. These symptoms include, but are not limited to: 1. People vs. Bledsoe, supra, 36 Cal.3d at p. 242-243: a. Disorientation b. Stress c. Agitation d. Fear e. Anxiousness f. Subdued g. Controlled h. Flashbacks i. Denial j. Relives incident k. Insecurity l. Nightmares m. Trauma n. Mistrust 2. In re Sara M., 194 Cal.App.3d at p. 589: a. Consistency of story b. Denial c. Unusual sexual knowledge d. Feeling of loss of control e. Anger f. Depression g. Behavioral problems h. Sleep disturbances i. Nightmares j. Eating disorders k. False sense of maturity l. Trust too much m. Trust too little n. Fear o. Details given over time People vs. Jeff (1988) 204 Cal.App.3d 309, 251 Cal. Rptr. 135 is controlling. In that case the prosecution presented one expert witness who described the alleged complainant’s post-molest symptoms, including nightmares, crying, depression, low self-esteem, and helplessness. The prosecution then presented a second witness to explain these symptoms as evidence of child molest. Neither witness was called for the purpose of rehabilitating the complaining witness. (Id., at p. 338.) The defense objected to the first witness on the ground that it was evidence of post-molest emotions used to prove that the molestation had occurred and objected to the second witness testimony as improper opinion testimony under People vs. Bledsoe, supra and In re Sara M., supra. The trial court held each witnesses’ testimony was admissible with respect to the symptoms exhibited by the complaining victim, but that neither witness would be allowed to state her opinion regarding whether a molestation had in fact occurred. The Court of Appeal found the admission of such testimony and the trial court’s attempt to limit its import ran afoul of the proscriptions set forth in Bledsoe, supra, and its progeny and reversed the defendant’s conviction: “It is not significant the prosecutor told the jury Susan Holland would merely describe symptom she observed and `[a]ny conclusion that is to be drawn will be yours.’ In effect and result, the prosecutor, by what he apparently believed was a brilliant subterfuge, engaged in the exact conduct, here condoned by the trial court, that was proscribed in Bledsoe, Gray and In re Sara M. The challenged testimony was not offered to rehabilitate a wavering or equivocal Gypsy. Rather, it told the jury that they should accept gypsy’s version of these events as true, that she was a victim, molested over a three- year period by defendant, because here is now typical child molest victims act and Gypsy fits the mold perfectly.” (People vs. Jeff, supra, 204 Cal.App.3d at p. 340.) That the testimony concerning a complaining witness’s post molest symptoms does not come from an expert does not make it admissible. In In re Christie D. (1988) 206 Cal.App.3d 469, 253 Cal. Rptr. 619 the court held that the non-expert status of witness opinion concerning the sex play with anatomical dolls did not make the play admissible. (Id., at pp. 478-480.) The play with anatomical dolls was not relevant to establish a molestation had occurred since there was no study showing its reliability as a predictor whether the opinions interpreting the play were formed by the expert or the trier of fact. Therefore, since experts cannot form opinion interpreting post-molest symptoms as a predictor of molest, the non-expert status of the witness does not cure the problem. II POST-MOLEST SYMPTOMS ARE INADMISSIBLE AS IMPROPER VICTIM IMPACT EVIDENCE UNLESS THE PROSECUTION CAN ARTICULATE A THEORY OF RELEVANCE. Victim impact evidence, i.e., post-molest symptoms, is inadmissible at the guilt phase of a trial unless relevant to a specific disputed issue in the case. For example, in People v. Redd (2010) 48 Cal.4th 691, the victim’s testimony concerning the permanency of his injuries was deemed relevant to a charged great bodily injury enhancement. (Id., at p. 731-732.) In People v. Taylor (2001) 26 Cal.4th 1155, 1171, a doctor’s testimony about the victim’s injuries and loss of bodily functions was held relevant to show the extent of said injuries and confirm he could accurately recall the incident. Generally, victim impact evidence (or victim impact argument by the prosecution) at the guilt phase is inadmissible as having little probative value and great prejudicial effect. In People v. Vance (2010) 188 Cal.App.4th 1182, the defendant’s murder conviction was reversed where the prosecutor made a victim impact argument during his argument to the jury. The court noted that such argument is banned at the guilt phase, stating, “The justification for both of these exclusionary policies is that they deal with subjects that are inherently emotional, possessing an unusually potent power to sway juries, and that their use must therefore be rigidly confined and controlled.” (Id., at 1193.) Other jurisdictions are in accord. See Colon v. Georgia (2005) 619 S.Ed.2d 773 [victim impact evidence in child molest case admissible to rebut defendant’s attack on credibility of child victim]; United States v. Copple (3rd Cir. 1994) 24 F.3d 535, 546 [error to admit victims’ testimony about negative effects of defendant’s fraud on their health and savings, such testimony was more prejudicial than probative]; Sager v. Maass (D.C. Ore. 1995) 907 F. Supp. 1412, 1419-1420 [ineffective assistance of trial counsel for said counsel to introduce at guilt phase victim’s entire written victim impact statement, which was a “prejudicial piece of evidence”]; Armstrong v. State (Wyo. 1992) 826 P.2d 1106, 1116 [“Consideration of victim-impact testimony or argument remains inappropriate during proceedings determining the guilt of an accused”]; Miller-El v. State (Tex. Crim. App. 1990) [in an attempted murder case, a victim’s paraplegic disability hardship held inadmissible in the guilt phase: “We cannot agree, however, that [Dr.] Harrison’s testimony regarding Hall’s future hardship as a paraplegic had any tendency to make more or less probably the existence of any fact of consequence at the guilt stage of trial”]. Based on these authorities, victim impact evidence in this case must be excluded unless the prosecution can articulate a theory of relevance and this Court conducts the necessary balancing of interests under Evidence Code section 352. II EVIDENCE CODE SECTION 352 PRECLUDES TESTIMONY OF POST-MOLEST SYMPTOMS (VICTIM IMPACT TESTIMONY). FURTHER, THE ADMISSION OF SUCH EVIDENCE WOULD VIOLATE THE DEFENDANT’S FEDERAL CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL Evidence Code Section 352 permits the trial court in its discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial impact, if it will consume an undue amount of time, confuse the issues or mislead the jury. “Prejudice” within the meaning of section 352 is defined as follows: “”`The prejudice which [section] 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations] `Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’” [Citation]” (People vs. Harris (1998) 60 Cal.App.4th727.) Testimony of ______________’s post-molest symptoms consisting of ________________________, which cannot be used to establish the molestation occurred, is extraneous to the case, highly prejudicial and will engender undue sympathy for her and hence antipathy for the defendant. As explained by the Copple court in finding such evidence wrongfully admitted: “Testimony such as this had either no, or very little probative value and was unfairly prejudicial. We believe that it was irrelevant either for the purposes of proving that Copple had failed to make up the loss to the funeral directors or for any other reason. Even if there had been some marginal relevance to the testimony about the particular personal or professional impact the losses had on the funeral directors, its principal effect, by far, was to highlight the personal tragedy they had suffered as victims of the scheme. The testimony was designed to generate feelings of sympathy for the victims and outrage toward Copple for reasons not not relevant to the charges Copple faced. It arguably created a significant risk that the jury would be swayed to convict Copple as a way of compensating these victims wholly without regard to the evidence of Copple’s guilt.” (United States v. Copple, supra, 24 F.3d at 546.) Further, such evidence may result in an undue consumption of time. For example, if the victim were to testify to having nightmares or to being withdrawn, the defense on cross-examination will have the right to search for alternate explanations which would include everything that ever happened to the child that could cause these symptoms making for an endless trial. Defendant further submits that the admission of post-molest symptoms/victim impact evidence in this case would violate his constitutional rights to due process and a fair trial under the 5th, 6th and 14th Amendments to the U.S. Constitution and article 1, sections 7 and 15 of the California Constitution. (McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378 [reversal of murder conviction because of other crimes evidence of the defendant’s knife collection and fascination with knives violated federal due process where that evidence was irrelevant to the crime charged]; Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862, 887 [same]; Clark v. Duckworth (7th Cir. 1990) 906 F.2d 1174 [the defendant has a federal constitutional right to a trial free of irrelevant and prejudicial evidence].) Add the following section if it fits your case III IF THIS COURT PERMITS THE PROSECUTION TO ADMIT EVIDENCE OF THE VICTIM’S POST-MOLEST SYMPTOMS, THEN IT MUST ALLOW THE DEFENSE TO OFFER EVIDENCE OF ALTERNATIVE EXPLANATIONS FOR THOSE SYMPTOMS. Should this court allow the prosecution to admit evidence of the complaining witness’s alleged post-molest symptoms as a valid predictor of a crime, due process compels it to allow the defense to present evidence of alternative explanations for those symptoms. (People vs. Reeder (1978) 82 Cal.App.3d 543, 550; People vs. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.) As stated in Reeder: “Evidence Code Section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense. In Chambers vs. Mississippi (1973) 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297, it was held that the exclusion of evidence, vital to a defendant’s defense, constituted a denial of a fair trial in violation of constitutional due process requirements.” (Reeder, supra, at p. 553, emphasis added.) CONCLUSION Based on the foregoing, the prosecution should be excluded from presenting evidence of the alleged complainant’s post-molest symptoms as a predictor that a molestation in fact occurred and because such evidence constitutes improper victim impact evidence inadmissible at the guilt phase. If the court allows such evidence, it must allow the defense to admit evidence of alternative explanations for the existence of such symptoms. Dated this __ day of ___, 20__ INNOCENCE LEGAL TEAM Names of attorney(s) Attorney for Defendant

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