Two witnesses to a brawl outside a Santa Ana nightclub that left a woman dead have been barred from testifying about what they saw in a video of the fight because the video cannot be found.
The witnesses, who are brothers, were apparently prepared to testify that a video they watched after the fight showed a woman kicking Kim Pham in the head during the brawl. Pham, 23, was pronounced legally dead days after the Jan. 18 altercation.
Eyewitness accounts of the chaotic scene outside the Crosby in downtown Santa Ana have conflicted and the video shown in the trial — shot on cellphones by bystanders — does not appear to clearly show Pham being kicked in the head.
Prosecutors hoped that the testimony of Jason and Brian Loyola would help establish that one or more of the defendants kicked Pham in the head after she tumbled to the sidewalk outside the popular night spot.
But since the video that the brothers said they watched had not been produced, an Orange County Superior Court judge ruled Wednesday that their testimony would be “way too speculative.”
The brothers are expected to be admonished not to testify about what they saw on the video.
According to testimony from eyewitnesses, the melee started when someone from Brito and Zavala’s group bumped into Pham as she waited with friends to get into the club. The bump set off an argument that escalated into a physical fight that witnesses said was instigated by Pham.
None of the videos or independent witnesses called by prosecutors have been able to establish that a kick actually made contact with Pham.
Judge Thomas Goethals said allowing the brothers to testify about the video would be akin to pulling a spectator from the stands at a baseball game to give their opinion on a disputed play.
Goethals said it was also possible that the footage doesn’t exist.
“I’m not convinced there is another videotape, there could be, I’m not convinced there is,” Goethals said.
Goethals had earlier said that if the testimony of the unavailable video was allowed and Brito and Zavala were convicted, it could become grounds for an appeal.
On Tuesday Leo Rodriguez, a Santa Ana detective, testified that investigators couldn’t track down the video because they initially believed they already had it.
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