San Francisco Sheriff Ross Mirkarimi, who is facing domestic violence charges, was not in court for several key rulings in his trial Monday.
Mirkarimi, 50, has pleaded not guilty to misdemeanor charges of domestic violence battery, child endangerment and dissuading a witness in connection with a Dec. 31 incident in which he allegedly bruised the arm of his wife, Eliana Lopez, during an argument in which his 2-year-old son Theo was present.
Judge Garrett Wong ruled that the pictures and statements made by Mirkarimi's wife, which were taken and heard by a neighbor, will be allowed in the trial.
Prosecutor Elizabeth Aguilar-Tarchi called the video "the focal point and crux of our case," and argued that it should be admissible in trial under exceptions to the court's hearsay rules.
Aguilar-Tarchi argued that the exceptions allow for certain spontaneous statements to be admissible if they are made under the stress of excitement and are made before there is time to contrive or misrepresent facts in a case.
She pointed out that Lopez was crying during the video, which she called "the functional equivalent of a 911 call."
Defense attorney Lidia Stiglich argued that the passage of 18 hours between the alleged incident and the statement Lopez made to Madison gave her time to reflect on it, and that the video was made for use in a custody dispute, not for a criminal case, since Lopez had said she was concerned Mirkarimi might try to take her son away from her.
"Just being emotional about something is not sufficient" for a statement to be admissible in trial, Stiglich said.
However, Wong ruled that the video could be used, saying it showed "a woman who is still crying and visibly upset the next day," and that the statement's "brief, cryptic and halting" nature "do not reflect any hint of contrivance."
The judge also ruled that although is not ready to rule on the admissibility of testimony from a former girlfriend of Mirkarimi named Christina Flores, he will to listen to her testimony and then decide the next step.
Wong also ruled on a motion by the defense to dismiss the case based on the release of images from the video of Lopez talking to Madison that Stiglich argued had tainted the jury pool.
Wong said he was "concerned about a fair and impartial jury pool" and ordered that the video not be released to the media before it is shown in trial.
Stiglich said outside of court that she was disappointed that the judge ruled against her on the video matter and her bid to have the case dismissed, but said, "We're going to just keep pushing on and we're going to just win it on trial."
Jury selection could begin as early as Tuesday.
Bay City News