By Stewart Lucas
SAN FRANCISCO, CA – Deputy District Attorney Samantha Adhikari attempted to admit testimony about an incriminating video into evidence during a preliminary hearing in San Francisco County Superior Court Friday, but Judge Marisa Chun had significant concerns about the reliability of the video evidence.
DDA Adhikari charged the accused with felony assault with a semiautomatic weapon and carrying a loaded firearm, among other charges.
Officer Michael Ferraresi tried to testify about the video’s contents, but Deputy Public Defender Eric Fleischaker immediately objected to the testimony, arguing the evidence was hearsay within hearsay and lacked foundation.
Judge Chun decided to discuss the objection further off the record. A couple of minutes of tense argument later, Chun provided a way for DDA Adhikari to get the evidence in by having another officer testify. Hopefully, Chun said, this would allow the prosecution to admit the testimony.
Another officer, Steven Lin, tried to talk about the video when PD Fleischaker objected again—DDA Adhikari did not have a witness who could provide adequate foundational testimony to get the testimony into court.
Judge Chun asked, this time, why DDA Adhikari would not simply admit the video into evidence.
DDA Adhikari repeated her argument that the officer’s testimony did not violate the rules of evidence. PD Fleischaker continued to argue that the video was inadmissible because it lacked foundation and was unreliable.
During the oral argument, it became clear that police obtained the video when a security guard handed it to them and that DDA Adhikari could not call a witness to authenticate it. While the police are allowed some latitude by Prop. 115, they still must introduce reliable evidence.
In 1990, California voters approved Prop. 115, allowing officers to provide hearsay testimony—any out-of-court statement used to prove the truth of the matter asserted—during preliminary hearings. Generally, courts preclude hearsay evidence because it can be unreliable.
Even with this allowance, Judge Chun decided the evidence was too unreliable to admit. Judge Chun was also concerned DDA Adhikari was attempting to “backdoor” otherwise inadmissible testimony with Prop 115 provisions.
Because DDA Adhikari failed to establish probable cause during the hearing, Judge Chun decided to release the accused for now, and save the rest of the preliminary hearing for another day.
