and in light of miss lopez's testimony, i thought it was a prior inconsistent statement that could come in. mr. kopp had no objections. was wondering if that would be ok for the commission? >> sure, no objection, you can do it. >> it is paragraph nine, page three, line seven, beginning with, " eliana told me," ending >> any objections from the commissioners? do we have that? ok, great, thank you. mr. kopp, have you found the exhibits? >> yes, i have. >> to you have any objection to 84 through 87? >> well, i think i had

previously -- i just want to make sure the police report we discussed yesterday is not included. >> i think it is. >> i made in objection and i understood that to be sustained last night. >> i don't think that we addressed it. you have a different recollection? >> we discussed it, but we did not settle it. >> i think we got rid of the rebuttal testimony from backeec. which do you have an objection to? >> e85, the report, hearsay. then 87, relevance. i am happy to expand upon that. >> ok, you may have to, but i don't think you will. ok, 84, 86 are in by

stipulation? >> yes. >> okay, let's take 85 first. i think it is here say. if he could asked at the officer? >> it falls within the evidence code, 1280, it is for writings made by and within the scope of duty of a public employ about an act, condition, or event that fits the bill. this is an incident report about the act and event that occurred when they arrested sheriff mirkarimi and discussion. under case law, this provision applies to incident reports, and they, and an administrative cases. i have a copy with a bunch of case cites, which i'm happy to supply the council and the commission. >> you could have submitted

becker's instead of daniele's. we gave you the option. >> that is right. >> i do not see becker's report as anything new, i think it is cumulative. if we gave you the choice and you made your selection. plus, i have not heard of police reports been able to come in under these kinds of circumstances. i open it up to my fellow commissioners, but i would be inclined to sustain the objection. >> may i ask a question? >> course. >> can you indicate to us what is different, what we would learn what different about the affidavit that we already have, the declaration that we already have from the other officer? >> no, it is correct. as the chairman mentioned, it was cumulative. that is true.

it is consistent. when you have a credibility battle, it went to get in as many witness statements as you can, and that is why we are submitting it. the sheriff had testimony one way, we had testimony another way, but this is nothing new. >> the only thing that has sympathy for this in light of what you pointed out is the fact that we know there is an issue raised by the sheriff's testimony. but i defer to your greater knowledge of it. >> that may be a mistake. well, and the other views of this from the commissioners about whether this should be admitted? ok, then 85 should be excluded. 87, 87 is a video of mr. wagner talking to a reporter. i have a very hard time seeing the relevance of that mr. keith.

>> the reason is offered is because we argued, as i argued earlier tonight, there has been a pattern of basically mistreatment of our reporting what this by a law-enforcement official, and it is continuing. this is basically belittling and making fun of the reporting witness, the wood is to correct the reported a crime. the idea that he would have his lawyer is going to a news agency and basically making fun of her and sang she is not credible because she has written a comic book, i think that is not decent and it is not the right thing to do. i think that is why it is relevant to the conduct charge. >> ok. any questions for mr. keith? mr. kopp, i will give you an opportunity to say something. >> last night, i said some things about miss madison's

credibility to some reporters. i mean, the mayor is out there, permitted to make comments about his view of sheriff mirkarimi's actions, but we are still supposed to fight with one hand behind our back? i don't think so. this is not a playground. i think -- well, i don't want to say what i really think about this, but i don't think there is any way this is relevant to what you have. i think we are perfectly permitted to comment on the credibility of witnesses. >> i would be inclined to sustain the objection of 87. any dissenting views from my fellow commissioners? ok, that will be excluded. ok, moving along to nancy lyman. unlike ms,. lopez's declaration,

you were more successful narrowing your scope of the disputes. unless i misread it. >> no, but i did not mean to give you the impression we had to go through this paragraph by paragraph. we have an overarching objection because, repeating myself, we don't think a domestic violence expert is needed to understand the situation and make a decision. i am aware from past comments that some of you have made to that. i am probably in the minority here, but really, they agreed to take out those paragraphs. i alluded to 185 to 190,

inclusive. other than the overarching irrelevance objection, really the only outstanding point that is in dispute is the bullet point number 6, or vi. >> i took your objection seriously and went through this paragraph by paragraph to determine what i thought was relevant. should i have not done that? >> i'm very sorry, the relevance objection is not too specific individualize paragraphs, but to the expert opinion. >> i don't know what that means. does that mean that you were objecting on relevance or not? >> yes. >> ok, here is my view of what should be stricken. 64-65.

82-87, 95, 96, 128, 135, 139, 142, 146-150, and 182-180. -- 184. so, ms. kaiser, you are welcome to address them.

>> ok. i really thought i was directed to the way it -- to do that. objections. i apologize, but i will be a little off the cuff, but i am happy to do this. i am just less prepared than i would have otherwise been. i apologize. ok, so 64 through 75 appears to be about the relationship between prior domestic violence, better intervention programs, and about a prominent intervention program and the san francisco jail and the san francisco sheriff's department.

this is offered as background information, at the same way the preceding paragraph to this point had been offered. there is a clear relationship, i think, and the experts believe between firearms and domestic violence. it seems to me this is relevant explanatory information out the significance about the issue, and it also seems to me the sheriff is participating now in a batterers' intervention program and the principles and importance of those programs are relevant in terms of the fact

that his conviction and his presence are the basis of one of the misconduct charges. so the fact he is under three years' probation and is mandated to attend this sort of court makes this information relevant to understanding the components of his sentence that we believe are important to determining whether or not it is consistent with professional standards. >> ok, i thought we had instructed you wall to give us lemon testimony that speaks to the credibility of ms. lopez, because that was the basis for it in the brown case, and that is what i insisted we were going to rely on miss lemmon for. whether or not there is someone who is legally authorized to have weapons, the sheriff is allowed to have them.

i am not sure that it will be helpful to whatever additional bodies have to review this record. i am cognizant this record is already huge. i and stand that we have erred on the side of letting things and, but i think we want to draw some lines and limit the record to what is truly relevant or at least related to relevant information. >> commissioner, does that mean that you are not intending on transmitting the full record? >> no, the whole thing will go, but i expect that whoever reviews this will rely in part on what is determined as relevant. so -- >> i don't know. i assume that all of the decisions that you make will be taken as recommendations by the final decision makers out. does that mean that they will not read the rest? i really don't know.

>> i am not really understanding your point, ms. kaiser. >> i am just curious about mending the page numbers when all of the pages are going in any way. i am trying to understand, to simply to address that concern and address it better and understand it. >> i think what we are trying to do here is figure out what the factual findings will be based on. that is the point of determining what is relevant, not just what record is going up to the board of supervisors. when we make factual findings, what are we relying on? we are only going to rely on the evidence that has been submitted, right? >> yes. >> so that is the point of all of the meetings we have been having to determine the admissibility of evidence. >> we expect you to follow our rulings and when you submit your findings of fact that have citations, we expect that you'll

be citing things that will be deemed to be relevant, whether or not another body reviews are worker agrees or disagrees with that viewpoint. >> absolutely, and instead of those concerns. i was just wondering about the desire to short for the sake of shortening. i completely understand the purpose of the rulings and the reasons why they are important to the findings of facts and conclusions. may i address your point about credibility in the brown case qwee? may i? >> do any commissioners have questions for ms. kaiser or comments about those paragraphs? ok, please proceed. >> ok. you remember i and at the last conversations and i hope you will not be mad at me if i do

not represent each person's views perfectly because i'm hearing a panoply of use. -- a panoply of use. i did not ignore the credibility of the victim as the main point of this declaration, but i also heard that the commissioner say, is and this important for us to determine what kind that the constitutes an act of domestic violence? i heard her ask if it was support for helping the commission determined whether sheriff mirkarimi pleaded guilty to a crime of domestic violence. commissioner stubbly was concerned that there be information about the nature of domestic violence and background about how to interpret several elements or actions within the context of domestic violence. commissioner lou said that was important or that it may be important, the facts that are

discussed may be important to understand how the behavior's may affect the domestic violence or why a witness would recant. those are separate things. commissioner randy wanted to know -- commissioner remy wanted to know whether it fit the definition of domestic violence, whether or not it is the legal definition. i heard many different views about why this might be relevant, which included victim credibility, but also exceeded it. that is why in my view, and frankly, i addressed the objections that mr. kopp raced to specific paragraphs and bullet 0.6, and it was my view and the first place that given the panoply of reasons that most of the declaration was from. >> i thought you were going to

address brown. >> ok. brown is indeed a case that talks about -- in that case, and that setting, the expert declaration went to helping the court understand the reasons why the victim would have recanted. but there are many other cases about the domestic violence expert, and are not limited to victim credibility. if you like me to bring in a series of case cites that show that is the evidence code that can include any reason why an expert would have more knowledge, i am happy to do that. it is true that is focused on that, but it did not limit the inquiry. >> of all the things you mentioned, i did not think paragraph 64-75 go to that.

my fellow commissioners objections or concerns about the testimony? the paragraphs that talk about the indications of domestic violence, the effect that it has on the victim, how victims react, those are all prior to these paragraphs. i would recommend that we strike a 64-75. are there dissenting views? >> no, i was just going to say that i had made a list, very similar to your list, of the paragraphs to exclude, given the concerns i had before. i was still going to exclude pretty much the same paragraph you are talking about. so i completely agree with your perch. >> -- with your approach.

>> paragraphs 82-87. >> i'm sorry, what did you just strike? >> 64-75. >> thank you. i'm sorry, what paragraphs are we discussing now? >> 82-87. >> thank you. >> you know, i agree that what happened with the guns has become relevant. it is just not clear to me what

an expert in domestic violence should be saying about them. the sheriff, obviously, was allowed by law to carry these guns, and her conclusions appear to be the types of conclusions that i would not expect an expert in domestic violence to make. so that is why i agree with the relevance objection. of course, mr. kopp, if i have that wrong or -- >> mr. chairman,. re 87 paragraph 87 may be excluded, but it does not necessarily relate to the guns in the previous paragraphs. >> that is true.

this appeared to me to be essentially a neutral conclusion. >> it was excluded because it was a legal conclusion. though i suspect expert witnesses are allowed to give legal conclusions, even though they may be wrong. >> she teaches domestic violence laws and wrote the textbook. boy, if there is anything that she is qualified to opine on, it is what domestic laws is. you may feel they did not need the help, but she is certainly qualified to offer that opinion. >> any objections from the commissioners to striking a 82- 87? >> i would keep 87 in. >> any other views? i can live with that. >> i agree. >> ok, so a 82-86 will be

stricken. mr. kopp, i'm tired of carrying your relevance objection. that i apparently took more seriously than you did. >> well, you have heard my view. >> i will let you did this. >> i will focus on the paragraph you have already raised. >> no, just the ones you raised. >> ok, so 95? yeah. i think much of this was already stricken in the various

declarations. i think the determination was already made this was not relevant. >> ms. kaiser? >> our experts have relied on here say, which was one of the bases, but i did not remember perfectly for striking this information last time. it is relevant for the same reasons that the florez testimony is relevant, it is relevant because it goes to understanding the likelihood of whether it was more severe incident on december 31. including all of the factual aspects of the incident, or whether or it was not. iyou heard the testimony yesterday that in her opinion, the incident must have been less significant because there were

no indications of economic abuse or emotional abuse or verbal abuse, and here is our expert looking at other statements that she considers reliable that she believes are evidence that it is more likely that this is domestic violence that is more severe. that is the relevance. >> okay, any questions for ms. kaiser? this does rely on paragraphs that were stricken from miss madison's declaration, which is why i recommend that we strike it from the other declaration. is there any dissenting view from my fellow commissioners? ok, 96, i think is basically the same. i would strike 96, too, for that same reason. >> may i speak to that point? as a matter of law, there is not a problem, the expert relied on evidence that was proper but not admit it. an expert may rely on other

things beyond admitted evidence. >> that it is not very helpful to us if she relies on evidence that we said was not reliable or helpful to us. i would strike 96. it128. >> it is the same issue. this was all stricken. >> ms. kaiser? >> he made this relevance determinations and here say determinations before you had the benefit of this expert explanation of why these facts or assertions are indeed relevant to an analysis of the events of december 31. it may be that did not change your mind, but the mere fact that he struck them before does not mean that you still have to

strike them now. >> well, ms. kaiser, don't we have to accept that the facts set forth in paragraph 128 are true, and we have no evidence to support that, so they are undocumented? >> you are entitled as the fact- finder to make a determination of whether or not you believe that it is reasonable of the expert to rely on these reports. the fact that she relies on them does not make the evidence true if you had met her report. it is still within your judgment to decide what weight to give things after you see her analysis and the reason why she asserts it. >> the difficulty i am having with that argument. it is one thing to say an expert can rely on here say, can rely

on other material, but where there is no evidence and the expert says these facts, and if these facts are not true, then i suppose we could subject the expert is because that paragraph -- it seems to me it is a backdoor way of putting and things that are not in the record. >> i find -- you are seeing my hands raised through difficulty, i guess, because the law does allow an expert to use their own expert judgment and experience to decide what is the proper basis of their own expert opinion.

now, in the judicial context, right, when judges make a legal determinations or juries make legal determinations, we have all sorts of rules about what is appropriate to rely on. one of the rules we have, though, is that experts are special. experts use their own judgment about in terms of the wrong field, even if this is not something that a judge would necessarily say, yes, this is a proper basis for my decision. an expert uses their own discipline to determine, "this makes sense when we are doing our analysis." i think what you are seeing is that in the context of a domestic violence expert, there at is almost a required reliance on here say, we're particularly in proceedings like this the story that started here may change and there may be reasons for that. >