Argument on admissibility of the search-warrant affidavit

📄 Argument on admissibility of the search-warrant affidavit — Wednesday, July 6, 1994

Address:

C:\DEPT103\PRELIMINARY\1994\JUL\6\ARGUMENT-ON-ADMISSIBILITY-OF-T.DOC

TRIAL

▲ Day 4 of 6

◀ Further redirect examination of Philip Vannatter Defense direct examination of recalled witness Philip Vannatter ▶

Date: Wednesday, July 6, 1994 • Lines: 26

The defense tried to introduce Detective Phillip Vannatter's search-warrant affidavit to impeach him, claiming it contained four material misrepresentations. The prosecution objected on foundation and relevance grounds, and Judge Kennedy-Powell excluded the affidavit as a whole because it was hearsay and lacked supporting live-witness testimony, while noting that specific inconsistent portions might conceivably be admissible.

# 1 MS. CLARK:

Yes. No further witnesses for the people, Your Honor.

# 2 THE COURT:

All right. Mr. Shapiro, do you intend to present some evidence with regard to this motion?

# 3 MR. SHAPIRO:

Yes, Your Honor. The first piece of evidence that we will present is already part of the court record, and that's the search warrant affidavit --

# 4 MS. CLARK:

There would be an objection --

# 5 MR. SHAPIRO:

-- That was signed -- excuse me.

# 6 MS. CLARK:

I'm sorry. I thought counsel had completed.

# 7 MR. SHAPIRO:

-- That has been signed under penalty of perjury by Detective Vannatter, and that is part of the court record and part of the proceedings that have been filed with this court. We'd like the court to consider that. In addition, we want to call the criminalist for the Los Angeles Police Department, Mr. Fung, and we have two other civilian witnesses --

# 8 MR. UELMEN:

Three others.

# 9 MR. SHAPIRO:

-- three other civilian witnesses.

# 10 THE COURT:

Ms. Clark, with respect to the search warrant affidavit, do you wish to be heard?

# 11 MS. CLARK:

Yes, Your Honor, thank you. First of all, I think Mr. Shapiro has failed to lay a foundation. He has not questioned the detective concerning whether this affidavit was written by him or he is the affiant or this is the search warrant for this location. That would be easily laid, so he's failed to do so. Secondly, it's not in issue. We are not litigating this search warrant, and any of the assertions contained therein do not pertain to the state of mind that was prevailing at the moment the decision was made to go over the wall. That is the only state of mind and the only set of circumstances that are now in issue before this court. Therefore, this warrant and any variants that are contained therein are irrelevant.

# 12 THE COURT:

Mr. Shapiro.

# 13 MR. SHAPIRO:

Yes. The copy that I have is a warrant signed under penalty of perjury by Phillip L. Vannatter, who I believe is the witness here, since he describes himself as being the same person who testified as a police detective for the Los Angeles Police Department, assigned to robbery homicide special section, and he's been a police officer for over 25 years. If there is another Vannatter who has such similar credentials and has been employed with the same exact name and same badge number, then we will take the Court's time to establish the foundation.

# 14 THE COURT:

well, Mr. Shapiro, what is your legal theory for the admissibility of this document?

# 15 MR. SHAPIRO:

This document is evidence. This is evidence that is sworn under penalty of perjury, that is part of the official court record of this case. There are in this warrant, in our opinion, four material misrepresentations that go to impeach the credibility of Detective Vannatter and his testimony here today.

# 16 THE COURT:

All right.

# 17 MR. SHAPIRO:

It is offered only for the purpose of impeachment.

KEY QUOTE

# 18 THE COURT:

Mr. Shapiro, basically this document is hearsay. The fact that it is under -- declared to be true under penalty of perjury does not relieve it from the category of hearsay. And for an exception to apply -- and there may be some exception to certain portions of that warrant or the affidavit, I don't know that -- but if there are some inconsistent statements with the testimony here, conceivably portions of that may in fact be admissible. But just to offer the affidavit as such in a whole is hearsay without any exception. So I'm going to sustain the objection.

# 19 MR. SHAPIRO:

May I be heard, Your Honor?

# 20 THE COURT:

Yes.

# 21 MR. SHAPIRO:

Under Proposition 115, that is not a valid objection, with all due respect to the court. Number two, all --

# 22 THE COURT:

Just a minute.

# 23 MR. SHAPIRO:

May I finish?

# 24 THE COURT:

I'll let you finish, Mr. Shapiro, but Proposition 115 does not apply to the suppression hearing.

KEY QUOTE

# 25 MR. SHAPIRO:

I believe all relevant evidence is admissible and that hearsay evidence on a prior inconsistent statement is an exception to the hearsay rule and would be admissible. We'll submit the matter, Your Honor.

# 26 THE COURT:

All right. On just the basis of the affidavit, offering that without any sort of foundation, without any testimony from a live witness with regard to that statement, the hearsay objection and the relevance objections would apply and I would not receive the affidavit in this form.

KEY QUOTE

Temperature

procedural

Key Quotes (5)

Robert Shapiro

There are in this warrant, in our opinion, four material misrepresentations that go to impeach the credibility of Detective Vannatter and his testimony here today.

Shapiro stated the defense's central theory for admitting the affidavit: impeaching Vannatter with alleged inconsistencies.

Robert Shapiro

It is offered only for the purpose of impeachment.

Shapiro narrowed the defense's proposed use of the affidavit rather than offering it as proof of every assertion it contained.

Kathleen Kennedy-Powell

But just to offer the affidavit as such in a whole is hearsay without any exception. So I'm going to sustain the objection.

The judge rejected admission of the complete affidavit while leaving open the possibility that particular inconsistent statements could qualify for admission.

Kathleen Kennedy-Powell

I'll let you finish, Mr. Shapiro, but Proposition 115 does not apply to the suppression hearing.

The judge directly rejected Shapiro's argument that Proposition 115 defeated the hearsay objection.

Kathleen Kennedy-Powell

On just the basis of the affidavit, offering that without any sort of foundation, without any testimony from a live witness with regard to that statement, the hearsay objection and the relevance objections would apply and I would not receive the affidavit in this form.

This was the court's final ruling excluding the affidavit in the form offered because of foundation, hearsay, and relevance problems.

Evidence (1)

Informal

The search-warrant affidavit signed under penalty of perjury by Detective Phillip L. Vannatter and already filed in the court record.

offered for impeachment, challenged, and excluded in its entirety

Notable Exchanges (3)

Marcia Clark•Robert Shapiro•Kathleen Kennedy-Powell

Clark argued that Shapiro had not authenticated the affidavit through Vannatter and that it was irrelevant because the hearing concerned the officers' state of mind when they went over the wall, not the later warrant.

strategic

Robert Shapiro•Kathleen Kennedy-Powell

Shapiro sarcastically suggested that foundation was obvious unless another officer had Vannatter's identical name, credentials, and badge number.

tense

Robert Shapiro•Kathleen Kennedy-Powell

After the court sustained the objection, Shapiro invoked Proposition 115; the judge interrupted to clarify that it did not apply to the suppression hearing, then allowed him to finish.

firm

Credibility Attacks (1)

⚔ Detective Phillip L. Vannatter

alleged prior inconsistent statements and material misrepresentations

Shapiro asserted that the affidavit contained four material misrepresentations that contradicted Detective Vannatter's hearing testimony, offering it solely to impeach him.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 9116 • 26 lines

Preliminary Trial

Department 103