0 " 12 8 “ 18 16 7 8 10 20 a Ey 2s 24 28 ~ 2 LOK ORIGINAL COPY STEVE COOLEY Superior Soot District Attorney of Los Angeles County David Walgren APR 78 2g44 Deborah Brazil (8 Execute UnceriCiork Deputy District Attorneys MAJOR CRIMES DIVISION 210 W. TEMPLE STREET 17-1130 LOS ANGELES, CA 90012 (213) 974-3992 [Attomey for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES PEOPLE OF THE STATE OF Case No.: SA073164 ) CALIFORNIA, ) } MOTION IN LIMINE TO PRECLUDE Plaintif, ) DEFENSE EXPERTS’ TESTIMONY : ) REFERRING TO DEFENDANT'S OUT OF . } COURT HEARSAY STATEMENTS CONRAD ROBERT MURRAY, } ) Defendant } ) TO: The Honorable Michael Pastor and defense counsel. PLEASE TAKE NOTICE that the People of the State of California hereby move this cour to preclude defense experts’ testimony referring to new statements the defendant evidently gave during a conversation with his experts following the preliminary hearing in this case. This motion is made on the grounds that California courts do not allow a defendant to use his out of court hearsay statements to avoid being subject to cross-examination and that unreliable out of court hearsay statements cannot be the basis for an expert's opinion, This motion will be based upon this notice of motion and on the memorandum of points and authorities served and filed herewith. Additionally, a copy of Dr. Paul White's letter to Mr. Michael Flanagan dated March 8, 2011, and a copy of Dr. Joseph Haraszti’s letter to Mr. Michael Flanagan dated March 3, 2011, will be provided to the court upon request. ‘Motion in Limine to Preclude Exper’s Testimony Referring to Defendant's Out of Court Hearsay Statements 110 " 12 13 1“ 15 7 18 19 20 24 22 23 24. 25 a | INTRODUCTION The defense should be precluded from introducing any expert witness testimony and/or reports that are based on the defendant's new, inadmissible statements, as this is simply a backdoor attempt to introduce the defendant's new, self-serving statements without being ‘subject to cross-examination. Further, such expert opinions are unreliable and tack foundation since they are based on untested hearsay. UL FACTUAL SUMMARY Prior to the filing of this case, the defendant was briefly interviewed at UCLA on June 25, 2009, and then interviewed in the presence of two of his defense attorneys on June 27, 2009, The preliminary hearing began on January 4, 2011, and concluded on January 11, 2011 Following the preliminary hearing, at which the People called numerous witnesses and presented some of the relevant theories of the People's case, the defense consulted with two experts, Dr. White and Dr. Haraszti, According to Mr. Flanagan, Conrad Murray's lawyer, Dr, White met with and spoke to the defendant. Subsequently, Dr. White created a report in which he referenced newly presented information that the defendant had never before provided to the police. Likewise, Dr. Haraszti's report references new information, apparently obtained from ‘Conrad Murray; significantly, the information contained in Dr. Haraszti’s report was not revealed by the defendant during his interview with the LAPD detectives. However, the People have not, been informed whether Dr. Haraszti personally spoke with the defendant as Dr. White did, or if the new information in Dr. Haraszti's report was obtained from the information defendant apparently provided to Dr. White after the preliminary hearing. What is clear is that both Dr. White and Dr. Haraszti reference new and different information obtained from the defendant and such information conflicts with what the defendant told the police in his prior interviews. These new and different statements are inadmissible unless, prior to the experts taking the stand, the defendant testifies to these new statements under oath and subject to cross-examination. Motion in Limine to Preclude Expert's Testimony Referring to Defendent’s Out of Court Hearsay Statements 210 " 12 13 4 16 6 7 18 19 20 21 2 23 24 25 27 Ill MEMORANDUM OF POI! UTHO! A__The Defense Cannot Introduce the Defendant's Hear: itements before the Defendar ‘Testifies at Trial “A defendant in a criminal case may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.” People v. Harris, 36 Cal.3d 36, 69 (1984) (Plur. Opinion by Broussard, J.). In People v. Edwards, the court excluded statements written by the ‘defendant in a notebook when the defendant did not testify at trial because this was “really an attempt to put on a whole defense without ever putting the defendant on the stand subject to ‘cross-examination.” People v. Edwards, 54 Cal.3d 787, 819 (1991) ‘These expert opinions are also unreliable because they cannot be tested. “The value of an expert's opinion depends on the truth of the facts assumed." People v, McWhorter, 47 Cal.4th 318, 362 (2009), internal citation omitted. “Where the basis of the opinion is unreliable hearsay, the courts will reject it." /d, at 362 (quoting Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, §36, p. 667). In McWhorter, the defense attempted to admit an expert opinion that was based solely on a defense investigator's hearsay report. McWhorter, 47 ‘Cal.dth at 362, The court refused to admit this testimony since it was based on unreliable, unsubstantiated hearsay statements. fd. In the reports generated by Dr. Paul White and Dr. Joseph Haraszti, there are numerous| examples of new statements attributable to the defendant that were never conveyed in either of ‘the statements he made in his interviews with LAPD detectives on June 25 and 27, 2009. For example, Dr. White's report states, “Dr. Murray had ‘experience in the use of propofol for conscious sedation’.” There is no evidence whatsoever of this information in either of the two statements made by the defendant to the police on June 25 or 27. Dr. White then states that “Dr. Murray then left the room to make a phone call.” This statement was never made to the LAPD detectives and could only have come from the defendant in his conversation with Dr. White. This is inadmissible hearsay. Moreover, this new information directly ‘Motion in Limine to Preclude Expert's Testimony Referring to Defendant's Out of Court Hearsay Statements, 310 " 2 8 4 5 16 7 18 19 a4 2 23 2 25 20 27 contradicts what the defendant told the police on June 27, 2009. On that date, in the presence of two of his attorneys, Conrad Murray stated, “So I got up, went to the bathroom to release myself and also consider getting rid of some of his (Michael! Jackson's] urination that he had put in the jugs overnight. Then | came back to his bedside and was stunned in the sense that he ‘wasn't breathing.” When asked how long he had been gone, Murray stated, "! was gone, | would say, about two minutes.” In his report, Dr. White further states, “It is speculated that Mr. Jackson added a portion of the lidocaine-propofol mixture to one of the fruit drink bottles.” As far as the People are aware, this defense theory has come from only one source, the defendant, and this must have been conveyed to Dr. White by the defendant during their private discussion, In regard to Dr. Haraszt's report, there are even more examples of new out of court hearsay statements provided by the defendant to his expert. For example, Or, Haraszti states ‘that Murray was giving Mr. Jackson propofol to “maintain sedation and light sleep" yet there is nothing in the evidence that supports that Murray was attempting to give Mr. Jackson sedatives ‘to induce “light sleep.” In fact, according to the defendant, his purpose was to give Mr. Jackson ‘enough propofol so that he could sleep through the night. The last thing Mr. Jackson wanted, according to Conrad Murray's police interview, was just a "light sleep.” Dr. Haraszti then categorically states that when Conrad Murray gave Mr. Jackson the propofol on June 25, 2009, *he did not start a propofol drip.” However, the defendant never told the police “he did not start a propofol drip.” At best, the defendant's statements from his police interview are vague or unclear, but what is certain is that he never once stated that “he did not give a propofol drip.” This statement could only have come from the defendant in his recent conversations with his defense experts. Dr. Haraszti's report then states that Conrad Murray watched Mr. Jackson ‘sleep for 35 to 40 minutes" and then “left briefly to clean up in the bathroom and make a few phone calls.” First, during his interview with police recounting the events leading up to Michael Jackson's death, the defendant never stated he watched the victim sleep for 35 to 40 minutes. This is Motion in Limine to Preclude Expert's Testimony Referring to Defendant's Out of Court Hearsay Statements 410 " 2 13 14 16 16 7 18 19 20 at 22 23 24 25 a clearly new and different information provided to Dr. Haraszti by the defendant. Second, the defendant never stated he left to use the bathroom and make a few phone calls. This is yet another example of brand new information provided by the defendant to his expert witness. Finally, Or. Haraszti states that “it was during one of these phone calls...when (Dr. Murray} noticed that Mr. Jackson was not breathing" This, again, is brand new information that must have been provided to Dr. Haraszti by the defendant. Not only did the defendant not ‘mention a single phone call to LAPD (during this time frame), the defendant specifically stated he went to the bathroom, was gone for about two minutes, and returned to find the victim not breathing. Moreover, the defendant never once stated he found the victim not breathing while ‘on a phone call. This information represents a new version of events in contrast to what the [defendant told the police during his interview, as such, itis a backdoor attempt to introduce the defendant's statements without the defendant being subject to cross-examination, IV. GONCLUSION Conrad Murray may not introduce out of court hearsay evidence through his experts if he does not testify subject to cross-examination. Accordingly, his experts may not base their opinions on this unreliable and untested information, Should the defendant choose to testify under oath and subject to cross-examination, his experts are permitted to then rely on the information he provides to form their opinions. However unti this testimony is offered by the defendant, any reference to his new statements to defense experts must be prohibited. ‘Motion in Limine to Preclude Expert's Testimony Referring to Defendant's Out of Court Hearsay Statements, 510 " 12 13 4 18 16 ” 18 19 20 a 2 23 24 28 ar Dated: April 18, 2011 Respectfully submitted, STEVE COOLEY District Attorney of Los Angeles County By a, David Walgren Deputy District Att Deborah Brazil Deputy District to Preclude Expert's Testimony Referring to Defendant's Out of Court Hearsay Statements 6