part of prepare graf, which would emphasize the prejudicial nature of -- rather than i will be disposed that we don't need her at all and you can bring ler as a live witness to bring her in for those portions that legitimately can be brought before us rather than the kind of statements that are being made. we will go back to some of them and they are clearly here say, appear to have solely the purpose of sort of poisoning the well in this hearing. and i don't think that's what your responsibility. is your responsibility is to present the case fairly with the facts that relate to the charge. obviously, being a public document, the newspapers pick it up. it gets bandied about with no

opportunity to deal with. so that -- my pro-posal may be extreme but my proposal would be that we reject the declaration and to allow you to bring ms. madison in and you can question her and we would have an opportunity if objections are raised to rule on that as to relevancey and as toed a minutesbility. -- and as to admissibility. >> i was going second that. commissioner >> i fully understand the criticism. we are in a situation where we have an independent witness who's represented by council. and we don't have control over what the witness submits and the way that i would -- had i been prepare this is declaration for my client, i may have proceeded differently and i may not have

included everything that ms. madison included. she is an independent witness and the way we're pursuing by declaration, we don't have the kind of -- i mean, i think for the reasons that you -- the alternative procedure you raced is because we are proceeding by declaration we don't have the decision by the presenting lawyer when somebody's represented by council about what questions to ask and the order in which to take things. so i think the criticism is well taken. and we certainly didn't intend to put matters before the commission that -- that are not relevant. she's not our client. we didn't have control of how she drafted. with regard to the procedure i may very well not contest some of the decisions. we may agree that some of this is admissible. it's useful to go through the

declaration an hear the objections because it is going to make the procedure of taking testimony shorter. so that would be my suggestion. but i understand and appreciate the criticism. >> thank you, mr. keith. >> my concern when you say that you didn't have control over the witness and that she had her own attorney but you were the one that submitted the declaration. so you had to have looked at it. so you could have said to her attorney, these paragraphs are not relevant or they're prejudicial and they don't relate to the issues but i accept the difficult you have under those circumstances. but again, the problem i have with going over paragraph by paragraph is that if -- in order to do that we simply have to repeat the same things that are

being said and out into the mass media. the mass media can look at it now. in fact, when this was filed, the next day the chronicle had portions of what was in there -- in their story. fortunately, they didn't go into all the details but that's the very thing that -- and when i saw that i thought to myself, maybe this idea of going by declarations was not necessarily the most protective of the interests of everybody because if you had asked or if the witness were alive and started to ask a question about something, objections we made an it never gets into the record because you never get to answer. and so that's the -- >> so i guess i would be more inclined to have mr. kopp

prepare a written objection to the paragraph by paragraphs because there are some paragraphs that are clearly jermaine and probably admissible -- germaine and probably admissible and go paragraph by paragraph but without going through it orally which is what we'll have to do without a written statement. chairperson hur: other views from the commissioners? mr. attorney, i can can certainly appreciate your concern. my concern with written objections with respect to ms. madison is that mr. kopp is prepared to tell us what the objections are. i think there are legal issues with respect to what relevant testimony can come in with this declaration that i think are going to be informative about a number of issues. so in light of that, i would still propose that we go through

it. i would ask that if there's a stipulation on a paragraph not that shouldn't be admitted that it just be stated and that we don't have a rezztation of what the paragraph is about. if this becomes overly prejudicial then i think we can reconsider. i think we can get the parts of this declaration that are actually going to be at issue hopefully quickly. is that acceptable to the commission? >> yes. >> mr. kopp? >> can i just voice a concern that i had because i had the same concern that mr. renne just voice which is i did not want to have the sentences read out. my concern is that when mr. keith responds to my objections he's probably, i would think he would want to explain to you why they are relevant and that would

necessitate that recitation of these facts. i'm not so sure this is going work. i'm throg give it a try. i'm going to make my objections in the most legal and general terms without addressing this specifics. chairperson hur: ok. let's try it. >> so we don't object to paragraphs one, two, three, four and that's as far as i got. we object to paragraph five on relevance grounds. chairperson hur: any other basis? >> the first sentence is probably more prejudicial under 352. when i say relevance grounds i don't know if you want me to spell out the parts specifically that i think are more prejudicial than probative. >> i can actually short circuit

this. well, let me say specifically, paragraph five -- oh, i'm sorry. >> ok. >> paragraph five, lines 9-10, i think we would agree that the part of the sentence beginning with -- including is not relevant. >> is that sufficient to address the objection to the first sentence of paragraph five? >> yes. >> ok. >> and then mr. kopp do you have any further objection to paragraph five? >> relevance as to the rest of it. >> keith? >> i would say that we would defeat the claim of bias that's being made against ms. madison

and mr. burton the fact that they supported the sheriff in the campaign and that bias somehow motivated their reporting of this incident. chairperson hur: i tend to agree that and that it ised a miss missable to combat bias. -- that it is admissible to combat bias. any objection to that? ok. paragraph six? >> we object on relevance grounds as to its entirety. in addition we don't believe there is foundation or the last sentence and we believe that the last -- or -- excuse me -- the third sentence, we don't think there is foundation -- strike that. we also think that the last

three, four, five, mr. kopp can you just say the line number? >> yes. >> is that easier? >> yes. >> we think that line 17 through 23 are speculative. again, more prejudicial than probative. >> mr. keith? >> we think that this does not offer -- well, this is offered to show the relationship between ms. lopez and ms. madison that is really relevant to why ms. madison chose to make the report and the kind of advice that she was giving to ms. lopez later. for that purpose, it is relevant. i mean, i think there is a lot of details in here that are probably not necessary. but it's offered simply to show the course of the relationship and the motivation for reporting

later on. >> i would sustain the objection, the entirety of paragraph six. any decenting views from the condition? -- commission? >> i'm sorry, if i could just ask the commission to keep the first sentence simply that this was something that they discussed at this time without reference to the content or ms. madison's reaction to it. again, that just goes to the relationship. >> any objection to that mr. kopp? >> i'm sorry. i'm ok with this. >> so six will be stricken ex-cement for this first sentence. >> commissioner could i have clearance with paragraph five? >> yes. >> thank you.

>> thank you. >> i'm just waiting. >> oh, yeah, i'm waiting for you mr. can kopp. i thought everybody was reading paragraph seven. >> we objected this paragraph on its entirety on relevance grounds, additionally there's no foundation for most of these sentences and finally this kfings is much more prejudice than any other issue.

>> can you tell us the next paragraph you don't object to just in case there are consecutive paragraphs, we can maybe deal with them. >> may i just have a moment, please? >> yes. >> i think i'm going to have to

all the way through paragraph 38 before i don't have an objection and that's down the road. >> ok. >> there's going to be a standing here say objection to anything ms. madison says that ms. lopez told her at any point in time. >> ok. >> and then there are going to be numerous other objections. chairperson hur: let's take it paragraph by paragraph then. paragraph seven, is there a -- mr. keith can you object to the strike in paragraph seven? >> yes, i mean, i think i can talk about a few of these paragraphs together. paragraphs seven through nine. these are paragraphs that describe what eliano lopez is telling ms. madison about her relationship. this is foundational or information that's relied on by nancy lemon in analyzing the state of the relationship that they have. it's well accepted that expert

opinions regarding domestic violence situation and relationships can and do rely on this kind of confidences given to friends and other people close to -- close to the victim even if they are here say. we're not offering this for the truth of the matter. we're offering this to establish the nature of the relationship so we can figure out what it is that's going on. and to some extent -- to the extent that the -- that the paragraph also discuss ms. lopez's response to these thihe marriage. they pertain to her state of mind and her conduct that would be our point from seven through nine. chairperson hur: commissioner studly. chairperson studley: i wonder if her testimony is the better source of any kind of that

information. chairperson hur: go ahead. >> i don't doubt that her testimony would be helpful. i think one reason that this kind of testimony is permitted in cases involving domestic violence, again not for the truth of the matter but for the nature of the relationship and the motivation of the victim into explaining the actions of the victim, it's -- it's often because victims recant which is again that's something that's in her statement. these kinds of statements can come in to support an expert opinion even if they're not for the truth. >> when you say you're not introducing them for the truth or falsity of the statements that are being made and attributed to ms. lopez, if they're untrue, they're meaningless, right? so you are -- you're trying --

you are arguing that what she -- what ms. madison says ms. lopez told her was in fact a true statement of facts. isn't that a classic here's? >> -- heresay. >> except insofar it claims that ms. lopez's course of conduct and why she was doing what she was doing at a later time. then it's permitted under the exception of the heresay rule. even if it is heresay and for the truth of the matter it is still permitted for an expert witness to relay on these types of confidence given to a friend about the nature of the relationship. >> i would strike paragraph seven, eight and nine in their entirety. i think they're more prejudicial

than probative. i think none of the statements -- i mean there, can be some foundation -- we've discussed some foundation that there is a relationship but i don't -- i don't think this is probative of what -- of the allegations and charges that we're seeking to aadjudicate. -- adjudicate. i welcome comments from the commissioners or questions for mr. keith. ok. hearing no objection, we can vote at the end, but i take it there's no objection to the sustaining of objections to seven, eight, and nine among the commissioners. >> no objection. ok. paragraph 10, i think that was where we had left off.

i don't know if mr. keith, you want to address that or mr. kopp -- >> think it's a little different in terms of trying to assess ms. lopez's attitudes and state of mind. regardless -- paragraphs can relate to various concerns she had about theo and his welfare. whether or not any of these incidents actually happened, she had that concern and that concern is relevant to the actions that she later took. so, in that sense, that is why this information is offered. it's not offered to show that all of these things actually occurred. it's offered to show her concern for theo which explains her actions from the 31st through the fourth. >> any questions for mr. keith with respect to paragraph 10? mr. kopp? >> thank you, again.

we object on heresay and relevance grounds, also that again this information is more prejudicial than it is probative. i would like to just address one comment made by mr. keith a moment ago which is their expert witness wants to rely on this stuff assuming the truth of it. i mean, why would you rely on it if it wasn't true. their ex-pirt ms. lemon can rely on whatever she wants. it doesn't mean that it has to come into evidence before the commission. so i'd like to make that comment. chairperson hur: my view is that the entirety of paragraph 10 should be stricken for the reasons stated by council. and i think it's similar in nature to paragraph seven through nine. any decenting view from the commissioners? ok. hearing none, paragraph 11, i do think may have some -- we may

finally get to some potentially relevant evidence. let me hear the objections to number 11 -- >> the objection is primarily going to be heresay. i would agree that there's more probative information in this paragraph than any of the previous ones we've objected to. some of it contains information that is prejudicial but our primary objection here is heresay. chairperson hur: mr. keith, are there questions for the commissioners, or mr. kopp? >> i think this is where we start to get into the issues that we submitted a brief on why this is subject to heresay exceptions, most notably the

excited utterance rule but also exceptions to show the state of mind and to explain the conduct of what happened and how ms. lopez ended up making this video. so again, i think the issue of the excited utter rans we had ample evidence of ms. lopez's description -- i'm sorry from ms. madison's description of ms. lopez's demeanor. that she was distraught. he burst into tears gone. she was emotional. and that likewise demeanor was likely to reflect on the video and her bursting into tears on the video. we think that this as well as some of the other paragraphs that we're likely to discuss should come in under the heresay exceptions so for the reasons we briefed. >> questions to mr. keith with respect to paragraph number 11?

in light of the state court's decision with respect to the testimony of ms. madison and the case law cited therein about what an excited utter rans can mean under california law it does mean that statements made by ms. lopez on january 1st should come in now. i don't think as we sit here today we have to decide whether they come in for the truth -- whether they come in -- admissible, nonheresay evidence. but i do think that statements made to ms. lopez -- made by ms. lopez to ms. madison should be considered to the commission. mr. kopp? >> i'd just like to respond

briefly. i'm cog any santa of the rulings that were -- i'm cognizant of the rulings that were made by the court on the issue. i would say that that determination does not bind you. there's no es stoppable effect because there's no preview to the parties. an excited utter rans or spontaneous statement exception typically, it duds not apply when the -- it does not apply when the statements made a daph after that caused the excitement their caution is urged when it is a statement made in anticipation of litigation. some of this explicitly states by ms. lopez is considering divorce proceedings. more over in this particular paragraph there are numerous references to questions being asked by ms. madison of ms.

lopez. so it's more in the nature of an interviewing process rather than a torrent of words that just came out of ms. lopez because she couldn't control herself and that's really what the heresay exception is aimed at. chairperson hur: yeah, mr. kopp, one thing that comes to mind as we discuss this issue, i think we asked if you would -- if you would be prepared today to tell us whether ms. lopez is going to submit a declare ration. do you have that information? >> i do. i do not speak directly to ms. lopez. i talk to her lawyer. i am informed that she is willing to submit a declaration. i don't have a firm grasp on what the timing of that would be. but i hope that it would be within the next week or so. part of it is because it's responsive to these declarations that were responded to the weekend or friday an then again on sunday.

no decision has been made as to whether or not she is willing to appear for live testimony or cross-examination or appear remotely. that's all i can tell you at this point. >> when will you know? will you get an answer? >> i expect it within a week. i'm going to know -- i should be able to get a declaration or hope to be able to get one and i should have an answer as to whether or not she'll submit to cross-examination. she's not a witness under our control. >> who's representing her? >> her lawyer is paula kenny. chairperson hur: i would recommend that we put this on our list of individuals we may want to sub peena to appear before us -- this session. i think hearing from her will help us figure out what evidence if any from ms. lopez will come in.

>> i don't think you'll need to sub pena ms. canty. chairperson hur: can i hold you responsible for getting her here then? >> she doesn't really listen to me. but i can certainly request -- i can relay the fact that you requested that she'd be here unless there is some conflict in her schedule i'm sure she'll come. chairperson hur: i think we should put her on the list with a supoena. >> i can try to give her a phone call and try to get an answer if we have a break. chairperson hur: did you have anything in response? >> i think dwelling on when this rule applies. the question is when is the

incident -- this question isn't so much how much time has elapsed between when the utterance was made. it's what was the mental state of the speaker. and there are many instances in which statements that come, you know, a day later or two days later still come in as excited utter ranses. i think the issue is whether it comes in for nonheresay purposes or for the truth of matter than the weight that it's given. at this point we're not arguing weight. we're just arguing admissibility. if there's a rule that there's an excited utterance kit come in and then the commission can weigh that against whatever other evidence might be about what occurred. >> i'm inclined to agree that it should come in. i think we've -- we've discussed previously that the weight in heresay is the way we get

nonheresay evidence. i don't think we need to decide right now as coming in as nonheresay evidence. but in light of how up in the air the testimony of ms. lopez is, i would be hesitant to exclude these conversations from evidence. any objections from the commission? >> no. chairperson hur: mr. can kopp you had mentioned that you had a .5 -- an objection to 352. is there anything very specific within here that you're objecting to on 352 grounds? >> if i could just have a moment, i'll let you know.