San Francisco Superior Court's three-judge appellate division is considering whether to allow the use of a 55-second video recorded by a neighbor that reportedly shows Mirkarimi's wife Eliana Lopez crying and pointing to a bruise on her arm.
Prosecutors have called the video the central part of their case against Mirkarimi, 50, who faces misdemeanor domestic violence battery, child endangerment and dissuading a witness charges in connection with the Dec. 31 incident in which he allegedly grabbed Lopez's arm during an argument, causing the bruise.
Lopez has denied the charges against her husband and her attorney Paula Canny argued in a pretrial hearing last week that the video should be disallowed in the trial because of attorney-client privilege.
Canny argued that Madison said on her book-selling website www.redroom.com and elsewhere that she was "trained as an attorney," and that Lopez believed her to be a licensed attorney.
After Judge Garrett Wong, who is overseeing the trial, denied Canny's motion, she appealed the judge's decision to the court's appeal division, saying the court "clearly abused its discretion in refusing to allow (Lopez) to assert her attorney-client privilege."
Prosecutor Lindsay Hoopes filed a response brief to the appeal judges on Wednesday, encouraging them to also reject Canny's motion.
Hoopes' response refuted Canny's arguments that Lopez believed Madison to be an attorney.
She wrote that prosecutors "have never received any evidence of an attorney-client privilege between Madison and (Lopez)" other than a declaration by Lopez included in a motion filed by Canny last week.
Hoopes wrote, "The court reviewed all declarations prior to rendering a ruling and nonetheless concluded that no attorney-client relationship existed."
Canny has until 4 p.m. today to respond to the prosecution's brief, and the appellate division could rule on the matter as soon as Friday.
Mirkarimi's attorney Lidia Stiglich has filed a separate motion regarding the video, arguing it should not be admissible because if Lopez does not testify in the trial, there is no way for Stiglich to cross-examine the alleged testimony from the video.
Stiglich has also filed a motion to move the trial to a different county, arguing that the extensive media coverage of the case has prevented Mirkarimi's ability to get a fair trial.
Wong has not yet ruled on those motions, but is scheduled to rule Friday on a motion by prosecutors to include California at Berkeley School of Law lecturer Nancy Lemon as an expert witness in the trial.
Jury selection is also under way, although opening statements in the trial are not expected to start until at least next week after all the outstanding motions have been addressed.