He's with us. He's going to help do the boards (Indicating to individual sitting next to Elmo screen).
Okay. Amendment to the complaint and motion to strike or withdraw portions of the complaint are granted. In regards to the instructions, the parties have submitted some additional proposed instructions at the request of the Court. With regards to the instructions that concern presumptions, the defense has submitted two instructions in that regard. I will hear from the defendant.
Your Honor, I think there's just a single instruction maybe on two pages. If we had submitted an earlier instruction, we withdraw it, but this is a -- it's a two-page instruction.
If it appears to be two, it should be a single one, and the two paragraphs in the second page are a continuation of the single instruction on the first page.
Your Honor, first of all, I want to make it clear to the Court that we have taken the position in prior argument on instruction that the 664 instruction should not be given at all in the case, so I don't want to waive that argument at all by virtue of our filing a proposed instruction in the event that Your Honor should decide that the 664 presumption is applicable in this case.
Just briefly on that point, I think it would be highly unfair and improper to give the presumption in this case, for this reason:
As you know, early on in the case, Your Honor limited our ability to gauge the witnesses' performance of the various tests and or took in their official duties by demonstrating what the standards are, the protocols, the rules and regulations.
I can quote to you your own statement made in the beginning of the case -- excuse me, during the testimony of -- I believe it was Officer Riske in which this issue came up; we were trying to cross-examine Riske and Rossi and other officers about what the proper procedures were as to the crime scene, what the rules and regulations are, what the protocols were, for instance, about setting up a perimeter and so forth and so on.
And Your Honor said, among other things, whether or not the police department did or did not act within certain protocols of police investigation or not, other than the facts that if they spoiled some evidence or affected the evidence of the case, some of the evidence being offered, all their shortcomings, in the Court's opinion, do not go to the issue of efficacy of plaintiffs' evidence, and I'm going to continue to sustain objections thereon.
The problem now that we face is they want both the benefit of the presumption, which as we put in our instruction presumes not that various tests are reliable, not that there wasn't planting, not that there wasn't alteration, not that there was any contamination, but as the Court stated in Davenport, which is cited, the presumption of 664 is compliance with statutory and regulatory standards.
And our only burden in a 664 situation is to show that those statutory and regulatory standard procedures or protocol guidelines were in any respect not followed.
So how can we possibly do that now? Your Honor has foreclosed our ability to do that, so in my view it would be patently unfair to give this instruction because we weren't permitted to get behind the actions of the police officers, the criminalists, and so forth, by showing, for instance, what the -- what the official protocol was for certain crime scene activities, both by the police and criminalists, and lab personnel as well.
So I don't think if -- In other words, if they objected from the -- in the beginning to that and Your Honor sustained their objection, how can they get the benefit of this presumption?
We had no opportunity to rebut it, so I think that the presumption shouldn't be given.
Also, I think there's been no evidence of what the standards are that are presumed under 664.
So I don't know how this is supposed to operate. If Your Honor is inclined to give the instruction, we certainly think --
KEY QUOTEYour Honor, the instructions that you placed on the defense mainly went to whether uncollected evidence, undone things, not -- not so much what they did.
They were allowed -- you allowed them complete and thorough examination of what was done in this case.
The witnesses testified what they did, how they did it. And that fully complies with 664, because under 664 -- it certainly really cannot be doubted that part of the duties of these police officers is to refrain from planting or manufacturing evidence.
It cannot be doubted that part of the duties of a criminalist is to properly collect evidence, part of the duties of a criminalist is to properly test the evidence. Those duties certainly come within the plain language of 664; their official duty as regularly performed.
And you did not restrict the defense in any way, shape, or form, from going into -- examining in thoroughness and detail, and certainly beyond what the plaintiffs thought was appropriate, every step that they took in handling the actual evidence in this case, which is, as you properly ruled repeatedly throughout this trial, is the -- only the evidence in this case is the only issue in this case, whether this is handled -- is the Andrea Mazzola video which was not videotape of her collecting evidence in this case, but a demonstration the prosecution put together before that was shown to the jury. They got to show those. They got to see those procedures. There was discussion about the procedures. There was thorough discussion about what was done in this case.
Your Honor, just one more point.
That is -- that's an absolute bootstrap argument when they say, surely, planting and alteration and purpose for alteration of evidence are presumed to not be part of official duty. But that's the same thing as saying in a DUI case that the reliability of the test is certainly presumed or that the test was undertaken in a reliable fashion.
However, the Court said again -- Davenport says it's not the reliability of the test in the DUI that's presumed, it's the fact that the standards and regulations in administering the test were followed. To the point where in Santos, Your Honor, that's -- I'll give you the citation.
Santos versus Department of Motor Vehicles at 5. Cal.Ap. 4th 537, 1992 case. There was no -- The defense pierced the presumption simply by showing that there was no time indicated as to when the test was done, and the Court specifically said it doesn't -- the defense doesn't have to rebut the reliability of the test, they just have to show that the rules or regulations were not followed in any respect.
Now, how I put the question to you -- again, put yourself in our position, how were we supposed to do that when we weren't permitted to even establish what the rules and standards and protocols were? How were we supposed to do that? Now --
They showed that as an example -- I believe the purpose in showing it was to show these are their procedures to be followed.
No objection.
If it appears to be two, it should be a single one, and the two paragraphs in the second page are a continuation of the single instruction on the first page.