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,"
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
* 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 email@example.com.