After days of discussion with the district attorneys and defense, Judge Thomas Goethals will not allow two brothers to testify about a video they say they saw outside the Crosby the night of Kim Pham's death. According to the brothers, the video was more vivid than the others currently in evidence and actually showed a kick connecting with Kim Pham's head.
Whether or not attorneys would have been able to ask the brothers about the video was in question because the Santa Ana Police Department never successfully collected it and the defense had no chance to review it.
Goethals originally planned not to admit the evidence. However, in an opinion published last Friday, a Los Angeles appellate court ruled that testimony about missing, lost, or destroyed "writings" can be admissible.
Both Loyola brothers identified a man in a leopard-print bill hat as the person who showed them the video. The court and attorneys had originally thought the man could not be found, but the detectives revealed that the police believed that they knew who the man was and had received a video from him. That video has already been submitted to evidence.
Pino conceded that the brothers may have been mistaken about how showed them the video. The question about whether or not the video tape exists, in addition to multiple other evidentiary problems led Goethals to reject the testimony.
"I'm not convinced there is another video tape," Goethals said, following a point by point explanation of the evidentiary issues. "There could be, but I'm not convinced that there is. … I will add that if that was the only issue, I might admit the evidence and invite any parties to submit a special instruction, but given the plethora of issues … I am changing my tentative from yesterday. I am going to exclude any testimony from either Loyola brother about what they might have seen on another unavailable video tape."
The brothers will still be able to give testimony about what they saw with their own eyes that night.