(A) The evidence must possess exculpatory value that is apparent before the evidence is destroyed;
(B) The defendant must show bad faith on the part of the prosecution;
(C) The evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

(A) DIANE JACKSON'S TESTIMONY IS NOT EXCULPATORY; IT WOULD NOT BE ADMISSIBLE EVEN IF SHE HADN'T BEEN HYPNOTIZED

Ms. Jackson says that at 11:40 a.m. on December 24, 2002, she saw three dark-skinned males, but not African-American, standing near a van parked on the street in front of 516 Covena Ave. She stated that she initially thought they were landscapers but changed her mind because they looked up and watched her as she drove by. She said that she changed her mind because landscapers normally continue working and don't watch traffic going by. She stated that she initially told the officers the van was white, but that upon thinking about it she believed the van was darker, either a tan, or brown color. That's it. That is all she said. Ms. Jackson had no information regarding seeing Laci Peterson that morning or even that these three people were doing anything improper.

The law regarding the admissibility of third party culpability is clear; there must be some nexus or connection to the crime. "Evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." People v. Hall (1986) 226 Cal.Rptr. 112, 117, People v. Adams (2004) 115 Cal.App. 4th 243.
Here, there is no evidence linking these alleged persons to Laci Peterson's disappearance. Neither Diane Jackson, nor any other person connects these three people, or their van,. to anything related to this case. No one says they saw Laci in this particular van, or with these people. As such, any testimony from Diane Jackson would be inadmissible and improper.

(A)(1) THE PEOPLE MOVE TO PREVENT ANY EVIDENCE OF THIRD PARTY CULPABILITY WITHOUT A SUFFICIENT SHOWING PURSUANT TO PEOPLE V. HALL

The People hereby move in-limine to prevent the defense from introducing any evidence of third party culpability without a sufficient showing pursuant to People v. Hall, supra. The People object to any mention of: a cult of satanists, individuals painting pictures at the Albany bulb, any mystery woman, including Amanda H., any brown van, or of any other third party culpability, without the defense first putting forth evidence sufficient to meet the People v. Hall standard.

The defense states that the prosecution "just last week turned over reports disclosing an interview with a witness who saw Laci Peterson being pulled into a van by at least two men." The defense does so in order to mislead the court, and anyone else who reads their motion, to suggest that this is completely new information that wasn't previously provided to them.

The defense neglects to tell the court that the alleged sighting took place on December 28, 2002 (four days after Laci Peterson disappeared) and that the witness had previously spoken to Modesto Police Detective Denis Holmes on that same date. Further, the witness's description of the woman's clothing did not match the clothing Laci Peterson was wearing when she was ultimately found. Finally, the witness's name, address, telephone number and a description of his statement were previously provided to the defense on May 14, 2003 in the initial discovery (Bates No. 14791, see attached discovery log signed by Bill Pavelic).

The only reason that either witness underwent hypnosis on January 17th, was an attempt by the Modesto Police to have each witness more fully recall what she might have seen on December 24, 2002. Nothing more. There was no improper motive by any law enforcement personnel regarding these two witnesses. Further, Ms. Jackson's statement to defense investigator Gary Ermoian proves this fact. She told him on January 16, 2003, that "Tomorrow (1-172003) she is scheduled for hypnosis at the Modesto Police Department, in an attempt for her to remember more about what she saw.”

(C)THE EVIDENCE SHOULD NOT BE ADMITTED SO TROMBETTA'S THIRD REQUIREMENT DOES NOT APPLY

Trombetta's third requirement is that the evidence must be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Here, it is immaterial that Diane Jackson was the only person to have seen these three males standing near the van. Since the evidence is not exculpatory and therefore inadmissible, the fact that no one else saw these people, or this van is not relevant.

III
DR. PENNINGTON WAS NOT A QUALIFIED HYPNOTIST

The court has previously ruled that Dr. Pennington was not a qualified hypnotist pursuant to Evid. Code Sec. 795 and therefore excluded the testimony of witness Kristen Dempewolf. The same standards must apply to the proposed defense witness Diane Jackson as she also underwent hypnosis in the same fashion as Ms. Dempewolf.

Evidence Code §795 sets forth the conditions under which testimony of a witness who has previously undergone hypnosis may be admissible in a criminal proceeding.

One of the conditions required to permit testimony of a witness who was previously hypnotized is addressed in Evidence Code §795(a)(2), which states that the testimony is admissible if

Here, the defendant attempts to introduce a statement from Ms. Jackson preserved in a one-page and two-line report taken by defense private investigator Gary Ermoian on January 16, 2003. In light of the court's previous ruling regarding Ms. Dempewolf's statement, such a recording is clearly not adequate.

Dr. Pennington was not a licensed psychologist pursuant to Evid. Code Sec. 795. 

The required procedure in Evidence Code §795(a) (3) (D) is that (t)he hypnosis was performed by a licensed medical doctor, psychologist, licensed clinical social worker, or a licensed marriage and family therapist experienced in the use of hypnosis, and independent of and not in the presence of law enforcement, the prosecution, or the defense.

While Dr. Pennington has a doctorate in psychology, he is not a licensed psychologist. As such, he does not fall under the definition of psychologist as stated in Bus. & Prof. Code Sec. 2903. The court has previously found Dr. Pennington to not be a qualified psychologist under Evid. Code Sec. 795 and therefore excluded the testimony of witness Kristen Dempewolf. As the conditions were exactly the same for witness Diane Jackson, the court must also exclude her testimony.
 

IV
PEOPLE'S REQUEST FOR DISCOVERY
 

The People have previously requested defense discovery multiple times both informally and through court pleadings. In fact, each and every time the People have provided discovery in this case, a written request for reciprocal discovery was included. Further, the People have formally requested discovery through a

The People have provided over 40,000 pages of written material, hundreds of photographs, dozens of audiotapes, and numerous videotapes. The People have provided the results of all scientific tests that have been completed, including the bench notes of the scientists who personally performed the testing. The People have had evidence tested at the CA Department of Justice at the defense request, and have made numerous other efforts to accommodate defense requests for discovery.
In contrast, the People have not received any discovery from any named defense expert including
[blacked out], [blacked out] or [blacked out]. The People's investigators have separately
made requests directly to these experts in an attempt to obtain discovery. Despite being assured by [blacked out] that "anything they asked for" would be provided, no discovery has been forthcoming.
 

The People are aware that [blacked out] and [blacked out] both have conducted examinations of evidence in this case, and both participated in defense autopsies of Laci and Conner's remains. The People are aware that numerous photographs and videotapes were taken by the defense during these autopsies, and at other times and locations.

The People are specifically requesting copies of all photographs, and all videotapes taken during those autopsies, or

The People continue to request all discovery as required by Penal Code Sec. 1054.3, and previously requested on December 11, 2003; including any evidence, or witnesses, the defendant intends to offer during the penalty phase in this trial.

CONCLUSION

Based on the above facts and law, the People respectfully request that the defense motion be denied and that the People's request for relief be granted.

Dated this 26th day of May, 2004, at Modesto, California.
 

Respectfully submitted,
JAMES C. BRAZELTON

District Attorney
By /signature/
RICK DISTASO
Deputy District Attorney

03 DEC 11  AM 8:59

CLERK OF THE SUPERIOR COURT

COUNTY OF STANISLAUS

BY /signature/

District Attorney
Stanislaus County Courthouse
Modesto, California

Telephone: 525-5550

Time 8:30 am

District Attorney
/signature/

RICK DISTASO

I, the undersigned, say:

That I am a citizen of the United States, over 18 years of age, a resident of Stanislaus County, and not a party to the within action.
 

That affiant's business address is Stanislaus County Courthouse, Modesto, California.
 

That affiant served a copy of the attached PEOPLE'S INFORMAL REQUEST FOR DISCOVERY by facsimile to The Law Office of Mark Geragos, fax number 213-625-1600.
 

I declare under penalty of perjury that the foregoing is true and correct.
 

People v. Scott Lee Peterson

I, the undersigned, say:

That I am a citizen of the United States, over 18 years of age, a resident of Stanislaus County, and not a party to the within action.
 

That affiant's business address is Stanislaus County Courthouse, Modesto, California.
 

That affiant served a copy of the attached PEOPLE'S INFORMAL REQUEST FOR DISCOVERY by facsimile to The Law Office of Kirk McAllister, fax number 209-575-0240.
 

I declare under penalty of perjury that the foregoing is true and correct.
 

Redwood City, CA 94063

oOffice of the District Attorney

400 County Center, 4th Floor

Redwood City, CA 94063

oOffice of the District Attorney

21 Tower Road
San Mateo, CA 94402

I am over the age of eighteen (18) years and not a party to the cause. On May 26, 2004, I served the attached:

OPPOSITION TO MOTION FOR SANCTIONS AND MOTION TO EXCLUDE WITNESS DIANE JACKSON AND REQUEST FOR DISCOVERY

on the hereinafter named, by placing a true copy thereof in a fax machine and ordering it delivered to fax machine telephone number (213) 625-1600, the fax number for the Law Offices of Geragos and Geragos.

Executed at Redwood City, California.

I declare under penalty of perjury that the foregoing is true and correct.

/signature/

Deborah Padilla