evidence code 1240. she was cheerful, emotional, and holding in her speech. i do not think it is very different from what was described in the case cited by the mayor's office. >> just from the perspective of a lay person, we would not be here. we would not be going through any of this, if it were not for that video. i think we certainly should take a look at it as a commission. i think it is absolutely relevant and important for us to see it. >> i just want to say that my client continues to assert that that video was a privilege to

video, made in the context of an attorney-client relationship. that has been shot down, but, for the record, had my client not [inaudible] >> hearing no objection from the commission, i think we should preliminarily admit the video. it should come into evidence. the other declarations, unless the commission thinks there is something else we should discuss, with respect to ms. lopez? there is one thing. mr. keith and mr. kopp, do either of you have an objection to ms. lopez appearing by skype if payment of her plane ticket

cannot be worked out? >> no. >> commissioner, i do not know if we have an objection. the reason is this. when this issue was raised by the other side, we did some research into the validity of oaths and testimony given from abroad. it is not clear to us that, under the various treaties that govern these, that the oath would be valid. i do not have any other problem with the testimony being by skype. we are not convinced that the of itself would be valid, and we are not sure if that is a risk we want to take, given the validity of the oath. >> let us say that we take the testimony. we get the transcript. we send the transcript to ms. lopez. she signs the transcript, under penalty of perjury. does that obviate your concern?

>> i think it would. >> great. thank you. i apologize. this is the third time i have asked you to come up, and i appreciate your willingness. indeed. do you have any objection to bringing the transcript, if this occurs by skype? we have a transcript that is transcribed in san francisco of the testimony that would occur in caracas. have ms. lopez review the transcript and sign it, under penalty of perjury of the state of california. >> i have no problem. i apologize. i should have figured that out, that it should have said under penalty of perjury of the state of the laws of california. i am sorry. >> i know this may sound mechanical, but is there a way for you to resubmit the declaration? >> i am going to, absolutely.

it may not get resubmitted until monday, but i will have an appropriate signature page. >> it should be re-signed. >> it will be. >> thank you. ok. other declarations? i want to commend both sides for the helpful work he did on the madison objections. i think that while we can disagree with certain positions you may have taken, i appreciate both of you working to come to resolution on things, and having us focus on what is likely the more important portions of these. >> thank you. it did take more than an hour, though. [laughter] >> i would join in the

chairman's observation. i did find it is very helpful, the way in which it was done. i do not know where the want objections and comments in the same form, which made it very easy for me to follow. >> that was my intention. essentially, i was when to walk through it and have the commission way in. this was submitted by the mayor's office. did the mayor's office accurately reflect the stipulations of the dispute? >> there was an amendment submitted, and i agreed with it. from our perspective, it fairly sets forth the disputes. i do not know that either of us need to say anything to you

folks. >> my view on this is that we go through them. unless commissioners have any questions, agreed. ok. it appears the first dispute is paragraph 21. >> there is an initial dispute about the general hearsay objection. i wanted to make sure you did not miss that. >> to the extent that the objection is here say and relates to comments that ms. lopez made to ms. madison, consistent with our prior rulings, i would be inclined to

admit those statements. the mayor is not introducing them for a hearsay purpose. they are going to show ms. lopez's state of mind. does that mean that if we disagree with your non-hearsay purpose, you do not want us to permit it? we are allowing here say into the record. you do not want it in for perce purposes? -- for here say purposes? -- for hearsay purposes? >> for this time friend, it is

relevant for mind set. it is hard to say i would not want any of it admitted. i would offer it, but it is hard to say which of these is covered by other evidence. >> if we find it does not go to a non-hearsay purpose, there are things you would not want to come into the record, which you otherwise want to come into the record? >> i want to be frank about the other evidence the hearsay evidence might supplement. since we are covering different topics, we would offer a generally. as far as the truth of the matter, i think the state of mind is probably the most significant. >> my view is that we admit the hearsay testimony, and we decide

later when we are actually evaluating the fact, or whether it should be administrative here say. i welcome the views of my fellow commissioners on that. >> i have a question which may be a little bit off target. some of the testimony which we may exclude on a hearsay basis or irrelevance basis, if a witness comes in and testifies to the contrary, has that opened the door to getting this testimony come in on a credibility question?

something that has troubled me, as i have thought about the declarations and the cross examination that will occur, is that we have excluded something. if the witness testifies that x does not happen, and it is not a credibility issue when somebody else in the declaration says it did happen, i would just like a little education on that. >> i think that is the correct observation. i think that -- it has become even more correct, in light of the fact that we did this stipulation before ms. lopez's documentation king in. this would put some evidence into dispute. we may need to revisit. i am not sure exactly how we would do that, other than to may

be set up a time to do it after all the testimony is in, and say that since the witness testified in this way, the statement by another witness might come in as a credibility issue. >> i am not sure i follow. it was a rare instance when we excluded testimony surely -- purely on the basis of hearsay. typically, our exclusions or relevance based. -- were relevance-based. irrelevant testimony will presumably be excluded, subject to objection. if it comes in and contradicts a hearsay statement, i am not sure the statement necessarily goes to the credibility. i do not know. mr. kopp?

>> i do not want to be in a position where people are trying to set up impeachment on some collateral issue, some irrelevant issue the commission has already determined is irrelevant. >> while i certainly want to get this record right, we spent a lot of time on this. i am hesitant to open the door to revisiting rulings we made, and the notion of going back through all the declarations at the end of the testimony is not something i would support. i do not know if you had anything particular in mind, about things we have excluded. >> i did not necessarily have anything in particular.

you used the magic phrase that all trial lawyers worry about. that is "opens the door." when i read some of the statements that were made in ms. lopez's declaration, it does raise a question in my mind. they are putting that document in. we have ruled earlier on some of the subject matter. if counsel for the sheriff puts it in their document, the classic argument is that has opened the door to an area where we have precluded it in the mayor's case.

i have nothing specific in mind but i think it's something both sides should be aware of. >> i see the point. i suspect that the mayor is going to hold us to our previous decisions with respect to other declarations and will object to portions of lopez we deemed irrelevant. that would be my expectation. i think we should wait and see what the lopez declaration looks like once question get the objection. i understand the concern. ok. paragraph 21, the objection is to page nine, lines 21 and 22. i would overrule that objection.

i think it does go to state of mind. state of mind. does the commission have any comment with respect to the objections to paragraph 21? ok, hearing none, paragraph 23, page 10, lines 4 through 6, i would sustain this objection -- i'm sorry, that was already stipulated. the dispute is the next one. page 10 lines 6 through 7. i would sustain that objection.

i think per rule 352, it's more highly prejudicial then probative. >> i completely agree. i think it's very presidential. >> any other comments from the commissioners with respect to the objection number b-2? maybe i will refer to it that way so we're all clear where we are. b-3, that is stipulation. b-4, page 10, line 17 and 18. i would overrule that objection. i think -- i think it should be admitted for a nonhearsay purpose.

any comments from the commissioners with respect to b-4 being overruled? ok. we're now to section 2-a there's a similar general hearsay objection. i would overrule that objection for the reasons we previously discussed. except for paragraph 34, lines 23. we it starts with he asked, threw line 25, in law enforcement. >> i'm sorry, commissioner, what

were those lines? >> page 13, line 23 through 25. it starts on line 23 with the last word. >> you know, i'm sorry, commissioner. i just noticed in fact we also had a relevance objection to this paragraph 33 and 34 that was not accurately reflected in the document that was prepared so of that an oversight. >> not accurately reflected or you didn't include it? >> no, it's right there on -- i made the objection when i transmitted all of my objections to mr. keaton. so it was -- must have both missed it. >> ok.

>> and this relevance objection is 33 and 34. actually, to be specific, it's on page 13, line 2. the sentence beginning with we, all the way to the end of that paragraph. and the entirety of 34. >> do you have a response? >> i think these paragraphs go to miss lopez's state of mind or her on the one hand thinking about reporting this to the police and on the other hand having concerns. i think it's relevant for the same none hearsay purpose for

the other paragraph. that's the explanation for paragraph 33. and if i can can go on to paragraph 34. >> please. >> for paragraph 34, this was offered under the same hearsay exception to explain why the person did what they did next and really it's just narrating a is conversation that was had between between miss madison and police inspector who answered the phone sofment again, it's not offered for the truth of what anybody said, just for here's how it happened, here's how the investigation started, which is a valid nonhearsay purpose. >> objection is relevance on 34 as well i understand it. >> the relevance would be to why miss madison is reporting this incident. she's reporting it to the -- or why miss madison calls the police in the first place, which is to find out how they handled

these reports and out of that came this is investigation. it tells you how everything got started rolling. it's hard to understand sequence of events if you cut out parts of it. >> i would be inclined to overrule the relevance objection to paragraph 33 and 34. any dissenting view from commissioners? with respect to the hearsay objection, you're introducing --

whose state of mind are you concerned about? >> in paragraph 33, it is miss lopez. in paragraph 34, it's more to show that miss madison's purpose was finding out about the police but about what the pless do when they get a domestic violence call. but then that call turned into an investigation. i mean 34 is really offered more just to show how this information came to the police and the investigation started. it's just part of the chronology of what occurred. it's not offered so much for state of mind. >> based on that explanation, i would be inclined to overrule the objection, hearsay objection, just to 34. any dissenting views from my fellow commissioners? >> no. >> ok.

i think the next disputed portion of paragraph 37, b-3, page 15, lines 22 through 24. i actually don't think that this is admissible for the purpose that the mayor identified but it is hearsay that i think could be admitted for other purposes. and i think it is essentially that it is relevant. so i would overrule the objection.

to b-3. niss dissent -- any dissenting view from my fellow commissioners. the next disputed paragraph is under three, roam numeral iii, a-2. the sheriff objects to page 18, line 19 through page 19 line 1. i would sustain the objection. welcome any views from my fellow commissioners. >> i request an opportunity to be heard on this particular

objection. >> ok. >> so this is a paragraph that discusses the effects of the -- this criminal investigation on a reporting witness. one of the matters that chief lansdowne has testified to in his declaration are the responsibilities and standards that a chief law enforcement officer is supposed to uphold. that includes promoting witnesses reporting incidents and protecting them from retribution. and specifically -- specifically the chilling effect that treatment -- bad treatment of a witness and a particular case could have on reporting. particularly as to the domestic violence. that's why this is being offered. >> how is that relevant to whether the sheriff committed

official misconduct? >> that would be relevant to the decency clause. one would expect a public official would not engage in conduct or condone conduct that would be so innick cal to their office. the office is law enforcement. law enforcement needs witnesses to prosecute climb. if witnesses are not willing to come forward, they cannot prosecute crime . when witnesses, people out there see how this witness was treated, that affects the ability of law enforcement to prosecute crime. and furthermore, our argument is this is an incident in which the sheriff in fact committed a crime. he admitted to it and admitted to hurting his wife and let these attacks go on, on this witness and attempts to discredit her go on when he knew that he had done a wrong, we would argue falls below the standard of decency. another issue for us is that

relevant -- relevance is a baseline standard. to say that something is irrelevant to exclude it on that basis, cuts off any consideration of that issue later on. i would encourage the commission not to keep itself from considering an issue and making a recommendation to the board of supervisors on an issue where there is testimony about what chief law enforcement officers are supposed to do with regard to promoting witnesses, reporting crimes. >> here's -- i appreciate that concern. but one thing -- one other concern when it comes to what the board has to do is the board has to sit through what is going to be an incredibly large record. and don't think we serve the board by admitting evidence we don't think is relevant because we are afraid or worried that we may exclude something that in

our good judgment should not be part of the record. i appreciate the concern. i think we've all been making efforts to ensure that the record is complete and i think in close calls, we have admitted evidence for that very reason. but at the same time i don't want to take that admonition as license to just admit everything. i frankly do not see how the sheriff's alleged failure to prevent some public outcry towards miss madison is relevant to what we've been asked to do. don't see anything in your charges that relate to that conduct. >> it's part of the course of conduct in going to the decency

provision. >> where are the allegations he should have prevented the alleged press abuse to miss madison? >> well, again, the argument sent the press abused her. it's the abuse was happening and we would argue at the behest of those working on behalf of the sheriff. >> where is that? >> the sheriff didn't speak out against it. that specific -- that level of specificity is not in the charges. if i can take a moment, i will locate on the charges where this issue is addressed. >> ok. >> in a more general sense.