People v. Murderer

Motion In Limine to Exclude Prosecution's Gang Cop Testimony and Gang Evidence

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While still a student, I "sat second chair" on a special circumstances murder case. My job was to keep out prejudicial gang evidence. Along the way, I wrote and argued several motions, conducted an Evidence Code section 402 hearing, cross-examined police officers and generally made a pest of myself before the court.

Winning this motion proved the truth of something a long-time attorney recently told me about the difference between practicing in the 1970s versus practicing today: You can still win motions to exclude certain kinds of evidence, when doing so doesn't really hurt the prosecution.

This was a successful motion to exclude gang evidence from a murder trial that involved no gang charges. When a prosecution witness did not testify exactly the way the prosecutor expected, the prosecutor wished to put on a gang cop to tell the jury that the reason was his fear of gangs. (The defendant, who killed his girlfriend, was a member of the same gang as the witness.) The witness, however, testified that his prior testimony was the result of threats from the PROSECUTION.

I'd like to think the court succumbed to the irrefragable logic of my argument. In fact, the same court routinely allows gang cops to chip away at the Constitution and chirp all day concerning unreliable hearsay about gangs. So I don't think that was it.

Under California Evidence Code section 352, evidence should be excluded if it is more prejudicial than probative, or if, among other things, it might result in the undue consumption of time.

So more likely my 46-page brief and my one-hour-plus verbal argument convinced the court of the truth of one of my arguments: that allowing gang evidence in this case, which was not about gangs at all and contained no gang allegations or enhancements, would run afoul of California Evidence Code section 352.

To protect client identity, my information, rather than the actual attorney's, appears on the posted briefs. Besides: I wrote it!

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Reference Info:State, 9th Circuit, California | United States


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Rick Horowitz, Law Office of Rick Horowitz | Attorney Advertising

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