Fate of alleged rape videotape in court's hands

March 30, 2004

Lolita Harper

COSTA MESA -- Attorneys in the case of three teenagers accused of

raping a 16-year-old girl finished a tedious round of hearings Monday

with diametrically opposed closing arguments about the authenticity

of a digital video tape that captured the sexual encounter.

Prosecutor Dan Hess said the footage on the digital tape, which he

alleges was not doctored as defense attorneys say, provides its own


credibility -- in addition to the witnesses who have taken the stand

to vouch for its validity.

"I asked the judge to look at the total circumstances, which is

what the rules call for, not just one piece of evidence or any

particular terminology," Hess said.

Defense attorneys Joseph Cavallo, John Barnett and Peter Morreale

argued Monday that the digital video tape, which shows defendants

Gregory Haidl, Kyle Nachreiner and Keith Spann engaged in various

sexual acts with the victim, is not an original copy and therefore,

must be excluded as evidence.

Two abnormalities were found in the tape: 21 frames of black and

another 21 frames of frozen frames, which created a fluttering image

when viewed. Experts on both sides of the argument have various

theories for what caused them, ranging from simply shutting off the

camera while recording to allegations that San Bernardino Sheriff's

Department officials edited it.

"The standard [that must be met] is whether or not the prosecution

has shown within 'reasonable certainty' that the tape is the

original," Barnett said. "The prosecution's own expert has stated

that there were two reasonable explanations for the 'flutter' ... One

is that the camera was turned off and the other is that it is a copy.

So they have not shown 'reasonable certainty' that the tape is an


Haidl, 18 -- the son of high-raking Orange County Sheriff's

Department official Don Haidl -- Nachreiner and Spann, both 19, are

accused of raping an unconscious 16-year-old girl in July 2002. All

three have pleaded not guilty to 24 felony counts. Their attorneys

have said that the sex was consensual.

Cavallo, who represents Gregory Haidl, filed the motion "based

upon evidence that the critical evidence being proffered by the

prosecution -- the videotape -- has been altered," along with other

claims of misconduct by law enforcement agencies, according to

Superior Court documents.

Because it was the defense that filed the motion, it is the

defense that must prove that the tape had been tampered with.

"Our expert that looked for flaws, found none, and those that were

referred to as artifacts were not evidence that the tape was a copy,"

Hess said.

Judge Francisco Briseno did not make a ruling Monday and instead

said he would review the transcripts of the two-week hearing and

issue a written ruling next week. His ruling is pivotal since the

District Attorney's case hinges on having the video tape as evidence.

If the tape is thrown out, Cavallo has said he will ask that the case

be dismissed.

* LOLITA HARPER is the Forum page editor. She also writes columns

Wednesdays and Fridays. She may be reached at (949) 574-4275 or by

e-mail at

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