GROVER TRASK District Attorney County of Riverside 910 N. State St. Hemet, CA 92543 Telephone: (909) 766-2370 State Bar No. 202293 SUPERIOR COURT OF CALIFORNIA COUNTY OF RIVERSIDE (Hemet) THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff v. KEITH HENSON, Defendant. MOTION IN LIMINE TO EXCLUDE EVIDENCE OF THREE ACCIDENTAL DEATHS AT OR NEAR CHURCH OF SCIENTOLOGY The People of the State of California hereby move pursuant to California Evidence Code 352 to preclude defendant from introducing evidence of or concerning three accidental deaths at or near property belonging to a Church of Scientology. The People expect that defendant will attempt to introduce evidence of these deaths and the Church of Scientology's "involvement" in them, to either justify his criminal acts or to prejudice the jury against the complaining witnesses and their employer. Such evidence is specifically preclude by California Evidence Code (hereafter Cal.Evid.) as irrelevant and thus not admissible per Cal.Evid. 350. Further, the introduction of such evidence must be prohibited under 352 because: There is no probative value, and the inclusion of such evidence would foster undue prejudice against 1 the complaining witnesses or their employer; it would confuse and mislead the jury; and it would require extensive trial of collateral issues, including presentation of additional witnesses and evidence on the subject of the accidental deaths, resulting in undue delay, waste of time, and further prejudice and confusion. Factual Background Defendant H. Keith Henson was arrested and arraigned for violating Penal Code Section 422; 664/422 & 422.6. Defendant Henson committed these acts against individuals who are parishioners of the Scientology religion and who work on the premises at the Church of Scientology International, doing business as Golden Era Productions ("Golden Era"). Defendant, in fact, knew that they were Scientologists at the time and intentionally made threats due to their religion. Defendant Henson is likely to use any means he can to prejudice the jury and to poison it against the complaining witnesses and the Church of Scientology International. The accidents that Henson is likely to attempt to introduce evidence concerning are: 1. In May 2000, Ashlee Shaner, a 16 year old girl was killed on the highway outside on Golden Era property at approximately 9:15 p.m. when she slammed her car into a front-loader that before the accident had been working on Church premises. No Golden Era employees were driving the front loader, nor did any Golden Era employee know that the front loader was being driven across the highway. In fact, no Golden Era employee knew the front loader was even on the highway until after the accident. 2. In June 2000, a Golden Era employee who, prior to the work day starting, had gone into a locked area of a high voltage underground vault to see if any small animals were trapped, accidentally slipped, fell and was killed. 3. On December 5, 1995, Scientologist Lisa McPherson died of a pulmonary embolism 2 caused by a car accident, which she had had in November 1995, in Clearwater, Florida. Henson has made her death his "cause" in which he engaged in harassment, threats, and pickets at several different Churches of Scientology to further his own ends and agenda, claiming that the Church was responsible for her death, in spite of the fact the medical examiner finally stated that McPherson's death was due to a pulmonary embolism Golden Era, whose premises which were the cite of Henson's threatening activities set forth in the information herein, is not the same Church of Scientology in which Ms. McPherson was parishioner, nor is it even in the same state as that particular Church of Scientology (Ms. McPherson's Church was in Florida). None of these cases excuse or justify Henson's activities for which he has been charged and the only reason that Henson is likely to attempt their introduction is to poison the minds of the jury against Golden Era and the Church of Scientology International and its employees. ARGUMENT I. The Evidence Is Not Relevant Cal.Evid. 350 prohibits the use of irrelevant evidence "No evidence is admissible except relevant evidence." Defendant's attempt to introduce evidence of any accidental deaths on or near Church of Scientology property is irrelevant as the deaths are not a defense for defendant's criminal actions. In fact, the deaths do not directly relate to the threats Henson made. Evidence about the accidental deaths does not "have any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action" (Cal. Evid 2 10), namely, that defendant committed hate crimes against the complaining witnesses. II. Any evidence of Accidental Deaths Must Be Excluded Under Cal.Evid. Code 352. 3 Even if evidence is in some way arguably "relevant," it is not necessarily admissible. The Court "may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury." Cal.Evid. 352. See also Kessler v. Gray (1978) 77 Cal.App.3d 824, 291, 143 Cal.Rptr. 496, 500. The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against [a party] as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging". People v. Yu 143 Cal.App.3d at 377, 191 Cal.Rptr. at 870, cert denied. 464 U.S. 1072, 104 S.Ct. 981 (1984), People v. Poplar (1999) 7 Cal.App.4th 1129, 83 Cal.Rptr.2d 320. Cal. Evid. 352 is virtually identical to Federal rule of Evidence 403 and is also applied in similar manner. See also United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). "Unfair prejudice' in the context of balancing evidence means 'an undue tendency to suggest decision on a improper basis, commonly, though not necessarily, an emotional one." United States v. Blackstone 56 F.3d 1143, 1146 (9th Cir. 1995), quoting Fed. R. Evid. 403 (which it notes is similar to Cal.Evid 352), Notes of Advisory Committee. First, as noted, any evidence concerning the accidental deaths is of no or at best extremely limited probative value. The issue in this case is whether or not defendant committed hate crime against the complaining witnesses; that issue has nothing to do with the accidental deaths. "Where the evidence is of very slight (if any) probative value, it's an abuse of discretion to admit it if there is even a modest likelihood of unfair prejudice or a small risk of misleading the jury." United States v. Hitt, 981 F.2d at 424; United States v. LawrenCe, 189 F.3d 838, 841 (9th Cir. 1999). Second, admission of the defendant's proposed evidence would inevitably lead to extended 4 and highly contested trial on the entirely collateral issues of who was responsible for the deaths. Litigation of these collateral, but highly charged and emotional issues undoubtedly will take over the entire trial, overwhelming and obscuring the narrow issues which are relevant and should be dispositive. The probability is high, if not certain, that the complaining witnesses will suffer great and unfair prejudice, that the jury will be confused and mislead about the relevant issues, and that trial of the case will be significantly extended and delayed at great but needless cost to the County. Indeed, there can be no other purpose to defendant's attempt to introduce the evidence than to confuse and prejudice the jury and to attempt to prejudice the court. Defendant does not propose to introduce evidence probative of a genuine issue in this case; rather, he desperately is looking for some issue, any issue, to attempt to justify his introduction of inflammatory and irrelevant evidence. Under the circumstances, there is not even room for the exercise of discretion. Admission of the proposed evidence would be erroneous and unduly prejudicial as a matter of law. See, e.g. Nichols v. American Nat Ins. Co., 154 F.3d 875, 884-85 (8th Cir. 1998) (abuse of discretion to admit evidence in Title VII case alleging harassment that plaintiff had undergone abortion contrary to the tenets of her religion: "The evidence exposed a very private part of Nichols' life and a type of experience which frequently involves a conflict in conscience. Such evidence tends to be highly prejudicial"); United States v. Lawrence, 189 F.3d at 842-43 (reversible error in mail and bankruptcy fraud prosecution to admit evidence that defendant failed to disclose his marriage of convenience to women he dated: "Any relevance this testimony may have had is easily outweighed by the unfair prejudicial effect it had on the jury's ability to focus on the issues relevant to the charges"). Thus, the Court must prevent defendant's attempt to confuse the issues and prejudice the jury by introducing evidence of irrelevant and prejudicial accidents. 5 Conclusion Any attempted introduction of the accidental deaths at or near Church of Scientology premises is inadmissible on a number of grounds, including, irrelevance and prejudice. Accordingly, the People respectfhlly request that their motion to exclude the introduction of purported Scientology beliefs and practices, be granted. Dated: October 30, 2000. Respectfully submitted, GROVER TRASK Robert K. Schwarz Deputy District Attorney 6