[Attorney Name], SBN [ ]

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Attorney for Defendant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF [COUNTY]

THE PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff,

vs.

[DEFENDANT’S NAME]

Defendant

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Case No.:

Motion to Exclude Subterfuge Around Bledsoe, the introduction of Profile Evidence, and the introductions of statistical evidence as to the frequency of false accusations.

Date:

Time:

Dept:

The defense moves for a protective order that:

1. The prosecution not be allowed to introduce the equivalent of a profile of a child molester or victim of a molestation under the subterfuge of dispelling numerous myths about child molesters or victims of molest.

2. If the prosecution intends on introducing expert testimony to dispel alleged myths, that:

a. There be a hearing outside the presence of the jury for the prosecution to specify the alleged myth and a contested hearing as to whether or not it is actually a myth.

b. The testimony be narrowly limited to only those items found by the court to actually be myths.

c. That the testimony to dispel a myth be limited to victims as a class.

d. That testimony as to profiles of child molesters be excluded; and

e. That testimony as to the percentage of false allegations of molestation be excluded.

I

USE OF EXPERT TESTIMONY TO DISPEL MYTHS

In People vs. Bledsoe (1984) 36 Cal.3dd 236, 249, the California Supreme Court held that rape trauma syndrome was inadmissible to show a rape had actually occurred, but could be admissible to “disabus[e] the jury of some widely held misconceptions about rape and rape trauma victims so that it may evaluate the evidence free of the constraints of popular myths.”

Subsequently, reviewing courts have held valid the use of expert testimony to dispel myths about child molest victims. However, the testimony is limited to victims as a class and not a particular alleged victim. People vs. Roscoe (1985) 168 Cal.App.3d 1093, 1098-1100; People vs. Gray (1986) 187 Cal.App.3d 213, 218; People vs. Coleman (1989) 48 Cal.3d 112, 144; and People vs. Stark (1989) 213 Cal.App.3d 107, 116-117. In addition, testimony not properly limited is excludable pursuant to Evidence Code section 352. (Roscoe, supra, at p. 1100.)

II

LIMITS ON EVIDENCE TO DISPEL MYTHS

In People vs. Bowker (1988) 203 Cal.App.3d 385, 394, 249 Cal. Rptr. 886, 891, the court considered whether or not the testimony of a child abuse accommodation syndrome expert fell within the Bledsoe exception permitting such testimony for the narrow purpose “of disabusing the jury of misconceptions as to how child victims react to abuse.” (Id., at p. 392.) The court reaffirmed that “Bledsoe must be read to reject the use of CSAAS evidence as a predictor of child abuse,” and found the expert’s testimony had exceeded the Bledsoe exception holding that “at a minimum the evidence must be targeted to a specific ‘myth’ or ‘misconception’ suggested by the evidence.” (Id., at pp. 393-394.) The court further held:

“In the typical criminal case, however, it is the People’s burden to identify the myth or misconception the evidence is designed to rebut. Where there is no danger of jury confusion, there is simply no need for the expert testimony.” (Id., at p. 394.)

In determining that the expert’s testimony erroneously exceeded the permissible limits of the Bledsoe exception, the Bowker court found that the expert’s testimony was tailored to fit the children in that particular case, asked for sympathy, asked that children be believed and by describing each aspect of CSAAS theory provided a scientific framework the jury could use to predict a molest occurred. The court ruled that this evidence should have been excluded. (Id., at pp. 394-395.)

SYNONYMS ARE ALSO INADMISSIBLE

Some expert have used the “trick” of using synonyms to the word “profile”. These synonyms should be excluded for the same reason. The main synonym that is used is “patterns”. This is a different word without a distinction. Both “profiles” and “patterns” should be excluded unter the case of People v. Bledsoe, supra.

III

JURY INSTRUCTION

When testimony is introduced to dispel a myth the jury must be instructed not to use that evidence to predict a molestation has been committed.

“Beyond the tailoring of the evidence itself, the jury must be instructed simply and directly that the expert’s testimony is not intended and should not be used to determine whether the victim’s molestation claims is true. The jurors must understand that CSAAS research approaches the issue from a perspective opposite to that of the jury. CSAAS assumes a molestation has occurred and seeks to describe and explain common reactions of children to the experience. (See In re Sara M., supra, 194 Cal.App.3d at p. 593, 239 Cal. Rptr. 605.) The evidence is admissible solely for the purpose of showing that the victim’s reactions as demonstrated by the evidence are not inconsistent with having been molested.” (Bowker, supra, at p. 394; People vs. Housley (1992) 6 Cal.App.4th 947, 958-959 [such instruction required sua sponte.)

IV

Expert testimony concerning about the characteristics and conduct typical of child sex offenders and about categories of child sex offenders and their treatment prognosis must be excluded as Profile Evidence

  1. Profile evidence is inadmissible.

A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) A profile may include “any information or data” that places the defendant “in an alleged ‘group’ of persons who have committed offenses in the past.” (United States v. Banks (C.M.A. 1992) 36 M.J. 150, 163.) Profile evidence is generally inadmissible to prove guilt; every defendant has the right to be tried based on the evidence implicating him in

The particular crimes charged, and not on facts accumulated regarding a particular criminal profile. (Robbie, supra, 92 Cal.App.4th at p. 1084.) Profile evidence is inherently prejudicial because it proceeds from an erroneous starting point. (Robbie, supra, 92 Cal.App.4th at p. 1085.) The syllogism underlying profile evidence is: criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. (Ibid.) The problem is that the major premise is faulty; it implies that criminals, and only criminals act in a given way. (Ibid.) In fact, certain behavior may be consistent with both innocent and illegal behavior. (Ibid.) As the Supreme Court has put it, if profile evidence lacks foundation, is irrelevant, or is more prejudicial than probative, it is inadmissible; “[p]rofile evidence is objectionable when it is insufficiently probative because the conduct or matter that fits the profile is as consistent with innocence as guilt.” (People v. Smith (2005) 35 Cal.4th 334, 358.) In Robbie, the prosecution presented testimony of an expert “in the area of the behaviors and conduct of persons who commit sexual assaults.” (id. at p. 1082.) The state may not justify the admission of this testimony as necessary “to disabuse the jury of common misperceptions about conduct [sic] of a rapist,” claiming that “[a] common citizen, inexperienced in rape and rapists, could be understood naturally to believe that a rape is a harsh, violent, threatening, and unrelentingly brutal experience.” (Id. at pp. 1082-1083, 1085-1086.) The Robbie prosecutor further contended that the evidence was akin to evidence the Supreme Court had approved in McAlpin, to rebut the common assumption that child molesters were “old [men] in shabby clothes who loiter[] in playgrounds and schoolyards and lure[] unsuspecting children into sexual contact by offering them candy or money.” (Robbie, supra, 92 Cal.App.4th at p. 1086.)

The Robbie court rejected these arguments. It distinguished the evidence from that approved in McAlpin, noting that the expert properly could have testified that rapists behave in a variety of ways and that there is no typical rapist. (Robbie, supra, 92 Cal.App.4th at p. 1087.) In Robbie, by contrast, the expert “did not merely attack the stereotype by explaining that there is no ‘typical sex offender.’ Instead, she replaced the brutal rapist archetype with another image: an offender whose behavioral pattern exactly

matched defendant’s.” (Ibid.) Robbie is in accord with precedent across the state and across the country. (See, e.g., People v. Martinez (1992) 10 Cal.App.4th 1001, 1006 [court erred in admitting profile evidence; expert testified about operations of auto theft rings, including type of car, route of travel, and fact that most of those arrested denied knowing the vehicle they drove was stolen]; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1072 [testimony that defendant fit the profile of typical Northern San Diego County heroin dealer was inadmissible]; People v. Covarrubias (2011) 202 Cal.App.4th 1, 16 [drug courier profile evidence is inadmissible]; United States v. Pineda-Torres (9th Cir. 2002) 287 F.3d 860, 865 [expert provided testimony about the structure of drug trafficking organizations, thus “attribut[ing] knowledge to the defendant by attempting to connect him to an international drug conspiracy . . . .”]; Haakanson v. State (Ct. App. Alaska 1988) 760 P.2d 1030, 1035-1036 [profile testimony, which identified otherwise innocent characteristics and behavior as evidence of guilt, was inadmissible under Alaska law]; Sloan v. State (Ct. Special App. Md. 1987) 522 A.2d 1364, 1369 [reversal where expert testified about “classic indicators of child abuse”]; Kansas v. Clements (1989) 244 Kan. 411, 420 [evidence that describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question]; Banks, supra, 36 M.J. at pp. 155-157, 160-164, 170-171 [reversing for cumulative error including court’s admission of evidence that defendant and his family fit a profile of child sex abuse because defendant was a stepfather who did not have a good marital sexual relationship]; Kirby v. State (Ct. App. Tex.2006) 208 S.W.3d 568, 573-574 [profile evidence inadmissible to prove guilt]; Commonwealth v. LaCaprucia (App. Ct. Mass. 1996) 671 N.E.2d 984, 986-987, 989 [expert profile testimony that presented defendant’s family situation as one prone to sexual abuse was erroneously admitted and, along with other erroneously-admitted evidence, required reversal]; Ryan v. State (Wyo. 1999) 988 P.2d 46, 55 [“Those jurisdictions that have considered profiles of battering parents, pedophiles, rapists, and drug couriers unanimously agree that the prosecution may not offer such evidence in its case-in-chief as substantive evidence of guilt.”].)

Even if the expert frames her opinions cautiously — indeed, in Robbie, the expert apparently admitted that the behavior she described may be consistent with both innocent and illegal behavior (Robbie, supra, 92 Cal.App.4th at pp. 1083, 1085) — profile evidence is dangerously misleading. As the court explained in Raymond, supra, 700 F.Supp.2d at p. 150, while the expert him or herself may be very careful in using profiles, “a jury may make the quick and unjustified leap from his expert testimony about behavioral patterns to guilt in a particular case that shows similar patterns.”

Finally, that an expert does not specifically opine that a defendant shares the characteristics of a typical child molester does not render the testimony any less improper and prejudicial. In Robbie, the expert testified by way of hypothetical, without directly opining that the defendant fit the profile she had drawn. (Robbie, supra, 92 Cal.App.4th at pp. 1082-1084.) In Buzzard v. State (Ct. App. Ind. 1996) 669 N.E.2d 996, 1000. (14RT 2872 [prosecutor: “Mr. Martin’s got a sickness. It’s not his fault. Didn’t choose to be this way. He’s struggling with it.”]; see People v. Walkey (1986) 177 Cal.App.3d 268, 279 [although expert never expressly concluded defendant fit the profile, his testimony clearly tended to associate defendant with a group who, in the expert’s opinion, are often child abusers].)

In People v. Bradley (Ill. 4th Dist. 1988) 526 N.E.2d 916, the court reversed where the prosecution’s expert listed characteristics said to be typical of perpetrators of child sexual abuse, noting that while the trial court had prohibited the parties from specifically connecting these characteristics to the defendant, that only exacerbated the problem, leaving the jury to speculate as to whether the defendant fit the very general profile described by the expert. (Id. at p. 921.)

In sum, because an expert’s testimony does not merely refute the purported stereotype of a typical child molester, but replaces that stereotype with a new type of offender, whose conduct and attributes matched those the prosecution attributes to the defendant, — and which were as consistent with innocence as with guilt — the evidence is inadmissible.

  1. Admission of such testimony would violated the defendant’s right to a fair trial and to due process of law.

The erroneous admission of such testimony would violated due process by rendering the trial fundamentally unfair. (See Partida, supra, 37 Cal.4th at p. 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913; Duncan v. Henry (1995) 513 U.S. 364, 366; see also Lisenba v. California (1941) 314 U.S. 219, 236 [“The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.”]; U.S. Const., 14th Amend.)

When there are no permissible inferences to be drawn from the evidence, and it is of “such quality as necessarily prevents a fair trial,” due process is violated. (Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; People v. Albarran (2007) 149 Cal.App.4th 214, 229-232.) Such evidence violates due process when it “‘is material in the sense of a crucial, critical, highly significant factor.’ [Citation.]” (Snowden v. Singletary (11th Cir. 1998) 135 F.3d 732, 737.)

No permissible inference can be drawn from testimony about a particular type of sex offender whose conduct and characteristics matches those attributed to the defendant. Indeed, “[t]he only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” (Clements, supra, 244 Kan. at p. 420.)

Similarly, no permissible inference can be drawn from evidence that two to five percent of men are sexually attracted to children, and that that attraction is innate, immutable, and untreatable. Such evidence only invites speculation about the likelihood that the defendant is one of those men, and about whether he would go on to abuse children if not convicted, and risks conviction because jurors believe that the defendant is a pedophile, not because they believe the elements of the crimes charged have been proven beyond a reasonable doubt. (Cf. Collins, supra, 68 Cal.2d at p. 329 [statistical evidence “could only lead to wild conjecture without demonstrated relevancy to the issues presented”].)

V.

The admission of testimony about the percentage of child sex abuse allegations that are false would violate a defendant’s constitutional rights, including his right to the presumption of innocence and to due process.

California has been a leader in condemning trial by statistics, and courts from around the country have condemned statistical testimony. Statistical testimony encourages jurors to draw the facile, but completely unwarranted, conclusion that there is an overwhelming probability that the defendant is guilty. This testimony violated a defendant’s constitutional rights, including his due process right to the presumption of innocence: It informs that even before they considered any evidence specific to this case, and based only on the fact that an accusation had been made, there is a strong percent chance that a defendant is guilty. In effect, this testimony transformed the fact that an accusation had been made into a high probability of guilt.

Trial by statistics has been condemned by the California Supreme Court. In Collins, supra, 68 Cal.2d 319, the prosecutor called a mathematics instructor who testified that assuming the robbery at issue was committed by a couple with six particular characteristics — including that the woman was white and had a blond ponytail and the man was black and had a beard and mustache — there was an overwhelming probability that the crime was committed by any couple who met that description. (Id. at p. 325.) The defendants, of course, met that description. (Ibid.) The prosecutor, by hypothetical, assigned probabilities to the various factors involved (e.g., the race of each of the suspects, the blond ponytail, the mustache), and then applied the “product rule,” as explained by the expert, arriving at a probability that there was one chance in 12 million that any couple possessed that set of characteristics. (Id. at pp. 325-326.) The California Supreme Court condemned the evidence, holding not only that the testimony lacked an adequate foundation, but also that “the entire enterprise upon which the prosecution embarked, and which was directed to the objective of measuring the likelihood of a random couple possessing the characteristics allegedly distinguishing the robbers, was gravely misguided.” (Collins, supra, 68 Cal.2d at p. 329.) Because in this case, like most cases of this type, guilt or innocence turned on the credibility of the complainants versus the credibility the defendant and the defense witnesses, allowing testimony that children make false allegations only very rarely was, as trial counsel argued, tantamount to allowing, in a murder case, testimony that 98% of people accused of murder are guilty.

As the Court explained in Collins: “Confronted with an equation which purports to yield a numerical index of probable guilt, few juries could resist the temptation to accord disproportionate weight to that index. …” (Collins, supra, 68 Cal.2d at p. 330; see State v. Myers (Iowa 1986) 382 N.W.2d 91, 94 [in holding inadmissible evidence that children almost never lie about sexual abuse, noting: “Typically, the truthfulness of the victim or the accused bears heavily upon, and is intertwined with, the guilt or innocence of the accused.”]; see also Weinstein’s Federal Evidence §403.05(3)(c)(ii) (2015) [“Statistics may suggest to the jury that the probability that the ultimate fact to be proved is true can be equated with the statistical probability offered in evidence.”].) Evidence that 95% of people accused of murder are guilty — or that 95% of prosecution witnesses tell the truth, or that 96% of alibis are false, or that 94% of confessions are true, or that 97% of assault victims correctly identify their assailants — would in fact make it more likely that any particular defendant is guilty. But such evidence has no legitimate relevance. (Collins, supra, 68 Cal.2d at p. 330 [statistical evidence “could furnish the jury with absolutely no guidance on the crucial issue”].)

The percentages are not only irrelevant for any legitimate purpose but, like the probabilities improperly admitted in Collins, they were lacking in foundation and were highly misleading. Percentages of false confessions are even more irrelevant than the probabilities presented in Collins: in Collins, at least, the expert testimony was grounded in the facts of the case. (Collins, supra, 68 Cal.2d at pp. 327-328; see People v. Morrison (2004) 34 Cal.4th 698, 711 [evidence is irrelevant if it leads only to speculative

Inferences].)

  1. Witnesses may not opine on the credibility of other witnesses.

Testimony about the rate of false allegations contravened another well settled principle: witnesses, particularly experts, may not opine on the credibility of other witnesses. (See People v. Sergill (1982) 138 Cal.App.3d 34, 39 [expert testimony about veracity of those who report crimes to the police is not admissible]; see also, e.g., United

States v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1221 [it is error to permit a witness to testify that another witness’s extra-judicial statements were truthful]; United States v. Sullivan (1st Cir. 1996) 85 F.3d 743, 750 [“‘It is not the place of one witness to draw conclusions about, or cast aspersions upon another witness’ veracity.’ [Citation.]”]; United States v. Sanchez-Lima (9th Cir. 1998) 161 F.3d 545, 548, [testimony regarding a witness’ credibility is prohibited unless it is admissible as character evidence]; United States v. Binder (9th Cir. 1985) 769 F.2d 595, 602 [reversing; “The effect of the expert witnesses’ testimony was to bolster the children’s story and to usurp the jury’s fact-finding function.”], overruled in part on other grounds in United States v. Morales (1997) 108 F.3d 1031, 1035.)

Even if the expert does not directly opine on the credibility of the complaining witnesses in this case, his testimony would essentially informed jurors that there was a strong percent chance that the complaining witnesses were telling the truth. (See Myers, supra, 382 N.W.2d at p. 93[rejecting state’s argument that testimony was merely offered to aid jury in understanding truthfulness of children, in general, who claim to have been sexually abused].) As such, it was inadmissible.

B. Courts across the country have condemned this type of statistical testimony.

Courts across the country have condemned the same type of statistical testimony presented here. In United States v. Brooks (C.A.A.F. 2007) 64 M.J. 325, 329-330, the Court of Appeals for the Armed Forces found that the trial court erred in admitting evidence regarding the percentage of child sex abuse allegations that are false. The expert in Brooks had testified that false allegations occurred in two to five percent of cases, and that false allegations occur most frequently in cases involving divorce. (Id. at p. 329.) In Brooks, which did not involve divorce, the court California is among those jurisdictions that do not hold that questioning a witness about whether another witness is lying is error in every case; rather, courts must “carefully scrutinize ‘were they lying questions’ in context.” (People v. Hawthorne (2009) 46 Cal.4th 67, 98.) found that the testimony “suggested that there was better than a ninety-eight percent probability that the victim was telling the truth.” (Ibid.; see United States v. Mullins (C.A.A.F. 2010) 69 M.J. 113, 116-117.) In Wilson v. State (Ct. App. Tex. 2002) 90 S.W.3d 391, the court held that it was error to allow an expert’s testimony that two to eight percent of reported child sex abuse cases involved false allegations, with the majority of those false allegations involving child custody disputes. (Id. at p. 393.) The court explained that this testimony “did not aid, but supplanted, the jury in its decision on whether the child complainant’s testimony was credible.” (Ibid.)

In Myers, supra, 382 N.W.2d 91, the court found an abuse of discretion in the admission of testimony that it is “exceedingly rare” for children to lie about sexual abuse. (Id. at pp. 92-93.) The court rejected the state’s argument that the testimony “‘was offered merely as an aid to the jury in understanding the issue of the truthfulness of children, in general, who claim to have been sexually abused.’” (Id. at p. 93.) “When viewed in light of the factual issues,” the court concluded, “this contention is unrealistic. The credibility of the eight-year-old child was a fighting issue between the parties. . . . The prosecutor’s obvious purpose in offering this expert testimony was to bolster the complainant’s credibility.” (Ibid.) The court held: “We believe the effect of the opinion testimony was to improperly suggest the complainant was telling the truth and, consequently, the defendant was guilty. . . . [T]he opinion testimony crossed that ‘fine but essential’ line between an ‘opinion which would be truly helpful to the jury and that which merely conveys a conclusion concerning defendant’s legal guilt.’” (Id. at pp. 97-98.)

In Powell v. State (Del. 1987) 527 A.2d 276, the Supreme Court of Delaware reversed the defendant’s conviction for rape of his stepdaughter because the trial court had erroneously admitted an expert’s testimony that 99% of the alleged victims involved in her sexual abuse treatment programs were telling the truth. (Id. at pp. 278-280.) The admission of this testimony, the court held, “deprived Powell of his right to have his fate determined by a jury making the credibility determinations, so clearly crucial in these cases, without guidance from an expert, in stark mathematical terms, bolstering the credibility of the complainant and thereby impugning his credibility.” (Id. at pp. 279-280.)

In State v. Parkinson, the Court of Appeals of Iowa held that the trial court correctly excluded testimony about national research estimating the range of false allegations to be between five and thirty percent of all sex abuse allegations. (State v. Parkinson (Ct. App. Iowa 1996) 909 P.2d 647, 654.) The court held that the evidence was properly excluded because there was no evidence of the methodology used in the studies from which an indicia of reliability could be drawn. (Ibid.)

And in Snowden v. Singletary, supra, 135 F.3d 732, the court reversed an order denying a habeas corpus petition because, it held, defendant’s due process rights were violated by expert testimony that 99.5% of children tell the truth about sexual abuse, and that the expert had not personally encountered any instances where a child had invented a lie about sexual abuse. (Id. at pp. 737-738.) The court found that this testimony constituted a fundamental unfairness and violated the defendant’s right to due process of law. (Id. at p. 739.) Here, as in the cases above, Urquiza’s statistics were inadmissible.

They unfairly bolstered the credibility of the prosecution’s witnesses and risked depriving Mr. Martin not only of his right to have the jury make credibility determinations, but also of his fundamental right to a jury.

C. The admission of the testimony about the rate of false allegations would violated the defendant’s federal and state constitutional rights.

The admission of statistical evidence would violated a defendant’s right to trial by jury, to a fair trial, to the presumption of innocence, to conviction only upon proof beyond a reasonable doubt, to due process of law, and to present a defense. (See Partida, supra, 37 Cal.4th at pp. 435-439 [defendant may argue that objected-to state law error had the effect of violating federal constitutional rights]; People v. Gutierrez (2009) 45 Cal.4th 789, 809; see also People v. Boyer (2006) 38 Cal.4th 412, 441 & fn. 17; People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Yeoman (2003) 31 Cal.4th 93, 117; U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15 & 16.)

A criminal defendant is entitled to be tried on the relevant evidence against him, not on statistics and probabilities that bear no relation to the particular acts he is accused of. (U.S. Const., 14th Amend.; Collins, supra, 68 Cal.2d at p. 320 [statistical testimony “distorted the jury’s traditional role of determining guilt or innocence according to long-settled rules”]; Jammal, supra, 926 F.2d at p. 920; Snowden, supra, 135 F.3d at pp. 737-739; Lisenba, supra, 314 U.S. at pp. 235-237; see Cal. Const., art. I, §§ 15 & 16.)

Such testimony would violated a defendant’s due process rights because it was entirely irrelevant and lent itself to no permissible inferences. When there are no permissible inferences to be drawn from the evidence, and it is of “‘such quality as necessarily prevents a fair trial,’” due process is violated. (See Jammal, supra, 926 F.2d at p. 920 [citation omitted].) Such evidence violates due process when, as here, it “‘is material in the sense of a crucial, critical, highly significant factor.’ [Citation.]” (Snowden, supra, 135 F.3d at p. 737.)

Such statistics violated a defendant’s right to trial by jury and his due process right to have the jury function as the sole judge of credibility and guilt or innocence. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16; Dillon v. United States (2010) 560 U.S. 817, 828 [referring to the “Sixth Amendment right to have essential facts found by a jury beyond a reasonable doubt”]; Snowden, supra, 135 F.3d at pp. 737-739; Brooks,

127 supra, 64 M.J. at p. 330 [defendant had substantial right to have factfinder decide ultimate issue without viewing alleged victim’s credibility through the filter of expert testimony]; Powell, supra, 527 A.2d at pp. 279-280 [expert’s percentage testimony deprived defendant of his right to have jury make credibility determinations]; see United States ex rel. Toth v. Quarles (1955) 350 U.S. 11, 16-18; Scheffer, supra, 523 U.S. at p. 313.)

Such testimony would also violated a defendant’s right to present a defense. (U.S. Const., 6th & 14th Amends.; see Collins, supra, 68 Cal.2d at pp. 327, 331 [statistical testimony “foreclosed the possibility of an effective defense by an attorney apparently unschooled in mathematical refinements, and placed the jurors and defense counsel at a disadvantage in sifting relevant fact from inapplicable theory”]; Cal. Const., art. I, §§ 15 & 16.)

Last, but far from least, such testimony undermined a defendant’s right to the presumption of innocence and reduced the prosecution’s burden of proof beyond a reasonable doubt. Such statistics inform jurors that, even before any evidence relevant to the particular case was considered, there was strong percentage chance the defendant was guilty. (See Taylor v. Kentucky (1978) 436 U.S. 478, 487-488, 490 [jury was improperly invited to consider petitioner’s status as a defendant and permitted to draw inferences of guilt from fact of arrest and indictment]; In re Winship (1970) 397 U.S. 358, 363; Estelle v. Williams (1976) 425 U.S. 501, 503; U.S. Const., 14th Amend.; Cal. Const., art. I, § 15.) In effect, such statistics converted the fact that an accusation had been made to a probability of guilt; from such testimony, jurors could conclude, without considering any evidence specific to this case, that there was a strong percentage chance that a defendant was guilty. (See generally Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1360-1361, 1368-1372 (1971) [statistical evidence undermines the presumption of innocence].)

CONCLUSION

In sum, the defense requests that the prosecution be ordered not to circumvent the limits placed on expert testimony in child molest cases by claiming each element of a profile of a child molester or child molest victim is a myth and under this subterfuge introduce expert opinion that the jury could use to predict that a molestation had occurred;

That the prosecution not be permitted to try this matter by profile by introducing the characteristics of a “typical” pedophile or child molester; and

That the Prosecution not be permitted to introduce statistical evidence on the number of false accusations, and attempt to obtain a conviction based on statistics, rather than on evidence.

Dated this __ day of ___, 20__

INNOCENCE LEGAL TEAM

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