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Liberty Counsel has filed a reply brief to the California Supreme Court to reverse the trial court’s pretrial ruling not to allow testimonial evidence of Sandra Merritt and co-defendant David Daleiden’s specific intent. The trial court’s decision prevents Merritt and Daleiden from contradicting the “specific intent” element of the alleged crime with which they are being charged.

Liberty Counsel represents Sandra Merritt. Merritt and Daleiden, founder and president of The Center for Medical Progress, are facing criminal charges for their undercover journalism exposing Planned Parenthood’s trafficking in baby body parts.

The undercover videos, some of which were recorded at the National Abortion Federation’s (NAF) 2014 and 2015 abortion convention and trade shows, exposed Planned Parenthood’s illegal involvement in harvesting and selling aborted baby body parts to companies such as StemExpress. The recordings capture Planned Parenthood executives haggling over the prices of baby body parts, picking through bloodied arms and legs of aborted babies in a pie tray, and discussing how to alter abortion methods to obtain better body parts for sale.

To date, no other citizen journalist or journalism organization has ever been charged with a crime for undercover recordings made in the public interest. In fact, Merritt and Daleiden are the first undercover journalists to be criminally prosecuted in California’s history.

Merritt and Daleiden are being prosecuted under California Penal Code section 632, subdivision (a) regarding the recording of confidential communication—a charge that is unprecedented for citizen journalists. The attorney general of California seeks to prosecute without having to prove specific intent. However, the California Supreme Court previously held in People v. Superior Court of Los Angeles County (1969) that specific intent is an essential element of the crime of recording a confidential communication. And in the case of alleged specific intent crimes, defendants have a right to raise a defense of mistake of law. Thus, the pretrial ruling that bars testimonial evidence of Merritt and Daleiden’s specific intent prejudices them at trial by depriving them of a large part of their defense. The Court should not allow this decision to stand.

Liberty Counsel’s Founder and Chairman Mat Staver said, “The Court must reverse the pretrial ruling. Undercover journalism is afforded First Amendment protections. Sandra Merritt did not violate any laws. The evidence will demonstrate that California’s first-ever prosecution of an undercover journalist is selective and discriminatory, and Sandra will be vindicated.”

Author: Liberty Counsel