PHYLLIS MORRIS, 1 Public Defender 2 255 N. D Street, Suite 200 San Bernardino, CA 92415-0931 3  (909) 383-2418 FAX (909) 388-4207 4 By: XXXXXXXX 5 Bar. No. 6 Deputy Public Defender 7 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO 8 9 PEOPLE OF THE STATE OF CALIFORNIA, ) CASE NO.: 10 ) 11 Petitioner, ) MOTION IN LIMINE No.: v. ) 12 ) TO PRECLUDE USE OF A ‘SUPPORT XXXXXXXX, ) PERSON’ WHILE WITNESSES ARE 13 ) TESTIFYING 14 ) Respondent. ) Date: August 4, 2014 15 ) Time: 9:00 a.m. ) Dept: S-10 16 17 18 It is anticipated the government will call past victims to the stand to testify as to the 19 fact of the qualifying convictions of XXXXXXXX. It is also anticipated that if any victims 20 do so testify the government will seek to have a ‘support person’ with the witness seated 21 behind or next to them while seated in the witness box. Respondent, XXXXXXXX objects 22 to the use and positioning of any support person for lay witnesses in this case. 23 Penal Code 868.5 provides for the use of support persons in criminal cases: 24 Notwithstanding any other law, a prosecuting witness in a case involving a 25 violation of Section 187, 203, 205, 207, 211, 215, 220, 240, 242, 243.4, 26 245, 261, 262, 273a, 273d, 273.5, 273.6, 278, 278.5, 285, 286, 288, 288a, 27 288.5, 289, or 647.6, former Section 277 or 647a, subdivision (1) of Section 28 1 MOTION IN LIMINE TO PRECLUDE/ALTER USE OF A ‘SUPPORT PERSON’ WHILE WITNESSES ARE TESTIFYING . 1 314, or subdivision (b), (d), or (e) of Section 368 when the prosecuting 2 witness is the elder or dependent adult, shall be entitled, for support, to the 3 attendance of up to two persons of his or her own choosing, one of whom 4 may be a witness, at the preliminary hearing and at the trial, or at a juvenile 5 court proceeding, during the testimony of the prosecuting witness. Only one 6 of those support persons may accompany the witness to the witness stand, 7 although the other may remain in the courtroom during the witness' 8 testimony. 9 1. Penal Code §868.6 Does Not Apply to SVP Cases 10 California has rejected the concept that SVP cases are criminal in nature. They 11 are not subject to the limitations imposed by the ex post facto clause of the Constitution. 12 Hubbart v. Superior Court (1999) 19 Cal. 4th 1138, 1170-1171; People v. McKee (2010) 13 47 Cal. 4th 1172,1193-1195. There is no prosecution in the legal sense occurring in an 14 SVP case and therefore, none of the witnesses can be considered prosecuting 15 witnesses. In People v. Adams (1993) 19 Cal. 4th 412, 433-434, in its analysis of 868.6, 16 observed: “the entitlement to support persons arises in prosecution of 25 specified crimes 17 which may be felonies or misdemeanors”. The entitlement to a support person applies in 18 criminal prosecutions and not in any other case. 19 SVP is not, and cannot be, a criminal case. It is a special proceeding of a civil 20 nature and the testimony of these witnesses plays a very limited role in the proceedings. 21 Their testimony is solely for purposes of determining the basis of the expert’s opinions. ie: 22 prior sexually violent offenses are used "solely for evidentiary purposes" to help 23 establish the main prerequisites upon which civil commitment is based--current 24 mental disorder and the likelihood of future violent sex crimes. (Ibid.) To ensure 25 that commitment occurs only under these circumstances, the SVPA requires that 26 the jury be specially instructed about the limited evidentiary role of prior violent sex 27 28 2 MOTION IN LIMINE TO PRECLUDE/ALTER USE OF A ‘SUPPORT PERSON’ WHILE WITNESSES ARE TESTIFYING . 1 crimes. (§ 6600, subd. (a)). Hubbart v. Superior Court (1999), 19 Cal. 4th 1138, 2 1175; 3 ( see also Moore v. Superior Court (2010) 50 Cal. 4th 802, 817 ‘Regarding evidence 4 admitted at trial, prior crimes play a limited role in the SVP determination’.; People v. 5 Superior Court (Howard) (1999) 70 Cal. App. 4th 136, 154 ‘However, the qualifying prior 6 convictions are not "proved" in order to enhance the defendant's sentence; instead, the 7 evidence of prior convictions is required as partial proof that the defendant has committed 8 sexually violent offenses’; People v. Carlin (2007)150 Cal. App. 4th 322, 332: ‘prior 9 sexually violent offenses are used ‘solely for evidentiary purposes’ to help establish the 10 main prerequisites upon which civil commitment is based”; “the SVPA does not impose 11 liability or punishment for criminal conduct”’). 12 In the criminal realm, use of a support person at the witness stand has been 13 deemed NOT inherently prejudicial. People v. Adams (1993) 19 cal. App. 4th 412, 435; 14 People v. Patten (1992) 9 Cal. App. 4th 1718, 1727. However, People v. Adams held that 15 there needed to be a showing of necessity for the support person to be present [when the 16 support person was also a witness in the case] but no such showing is required when the 17 support person is not a witness, according to People v. Tonys (56 Cal. App. 4th 550, 554. 18 Both Tonys and Adams extensively looked at the risks to a fair trial asserted by 19 defendants in both cases and Adams found that the showing of need applies whereas 20 Tonys did not, the distinguishing factor seeming to be whether the support person was 21 also going to testify. [both also involved the testimony of minors]. 22 But those cases were criminal cases where the person [minor] testifying is a 23 prosecuting witness and the state is trying to convict the defendant. The testimony of 24 such prosecuting witnesses plays a much more prominent and important role in the case 25 than is presented in an SVP case. 26 But the most fundamental difference is that in a criminal case, the question is 27 whether the person committed the offenses accused of, whether he or she performed the 28 3 MOTION IN LIMINE TO PRECLUDE/ALTER USE OF A ‘SUPPORT PERSON’ WHILE WITNESSES ARE TESTIFYING . 1 acts the witness is testifying to. But the fundamental question in a SVP case is not 2 whether the acts were done but what role do those acts play in the ultimate determination 3 whether XXXXXXXX has a current diagnosed mental disorder that makes him likely to 4 reoffend again; that makes him dangerous. 5 Moreover, the provision for a support person is in the Penal Code. If the right to a 6 support person was intended to apply in other contexts, the provision would be in the 7 Code of Civil Procedure or the Evidence code. And in the Penal Code, the section is in 8 Part II of the Code, entitled: ‘Of Criminal Procedure’. Every court addressing the issue of 9 what type of proceeding SVP is have all held ‘not criminal’. 10 11 2. Prejudice 12 13 All of the witnesses will be testifying regarding acts which occurred many years 14 ago. We certainly don’t mean to belittle or minimize the harm that was done years ago or 15 whatever effects it may have had. 16 But having a support person present, at the stand, with these witnesses certainly 17 runs the risk of sending a message (consciously or unconsciously) to the jury bolstering 18 the claim that XXXXXXXX is currently dangerous. It isn’t like a criminal trial where the 19 claim may be that the presence of the person sends the message to the jury that this 20 support person believes and endorses the witnesses’ testimony (People v. Adams, supra 21 at 437) thus lending more credibility to the testimony (the claim rejected in both Adams 22 and Tonys); the issue here is current dangerousness and the presence of another person 23 at the stand with the witness either bolsters that claim or sends a message that this 24 witness thinks, after many years, that XXXXXXXX is still dangerous. Allowing a support 25 person to be next to or behind the witness in effect tells the jury that they had suffered 26 long lasting trauma from the offenses, which is irrelevant to the issues to be decided by 27 the jury. The determination of whether XXXXXXXX is SVP is in no way dependent upon 28 4 MOTION IN LIMINE TO PRECLUDE/ALTER USE OF A ‘SUPPORT PERSON’ WHILE WITNESSES ARE TESTIFYING . 1 the presence of trauma, lasting or not. If it bolsters the claim of dangerousness it would 2 be a possible infringement on XXXXXXXX’s constitutional right to due process (People v. 3 Patten, supra, 9 Cal. App. 4th at 1726) and if the support person engenders the belief in 4 the jury that the witness thinks XXXXXXXX is still dangerous, that would involve 5 irrelevant and prejudicial inferences.1 6 But what makes their presence even more egregious is the fact that the testimony 7 is not really necessary. All the information the witness could give will be testified to by the 8 evaluators from the extensive police and probation reports. Given the limited role such 9 evidence plays in SVP trials, there is no need for the victim testimony (unlike a criminal 10 prosecution) and the use of a support person bolsters the conclusion that the only 11 purpose of the victim, with the support person, is to generate emotion in the jury. 12 If the presence of a support person were really necessary (and again, it is only 13 sanctioned in criminal cases), then having one in the audience that the witness could see 14 while on the stand should suffice. This was exactly the arrangement sanctioned by the 15 court in People v. Patten, Supra at 1727: 16 The statute clearly encompasses circumstances when the support persons 17 are present in the audience section of the courtroom and without having 18 any particular attention drawn to them. 19 Like it or not, this case is not about the witnesses and what happened to them. It is 20 about XXXXXXXX’s current mental condition and whether or not, if he has the requisite 21 disorder, does it make him presently dangerous? 22 23 24 25 26

27 1 Especially when the jury will also see a deputy accompany XXXXXXXX to the witness stand. 28 5 MOTION IN LIMINE TO PRECLUDE/ALTER USE OF A ‘SUPPORT PERSON’ WHILE WITNESSES ARE TESTIFYING . 1 Therefore, Respondent asks this court to preclude the presence at the witness 2 stand of support person(s) while the DA’s lay witnesses testify but allow the presence in 3 the audience. 4 5 6 Dated: July 15, 2014 Respectfully Submitted: PHYLLIS MORRIS, 7 Public Defender 8 9 By: ______10 XXXXXXXX Deputy Public Defender 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 MOTION IN LIMINE TO PRECLUDE/ALTER USE OF A ‘SUPPORT PERSON’ WHILE WITNESSES ARE TESTIFYING .