Sidebar: video evidence

📄 Sidebar: video evidence — Tuesday, December 10, 1996

Address:

C:\DEPT103\CIVIL\1996\DEC\10\SIDEBAR-VIDEO-EVIDENCE.DOC

TRIAL

▲ Day 29 of 57

◀ Cross-examination of Philip Vannatter (part 1) Redirect examination of Philip Vannatter (part 2) ▶

Date: Tuesday, December 10, 1996 • Lines: 28

John Kelly said Gary Randa made a June 1994 video depicting the south walkway, fence, bushes, and conditions, and Petrocelli said it was obtained under a court order. Baker objected to using the video with the witness, challenging its foundation and arguing that changed conditions undermined its value; he also asserted that the court had previously denied a jury view on changed-circumstances grounds. Petrocelli argued that Baker's earlier questioning about whether the fence area showed evidence of a crossing had opened the subject for cross-examination. Fujisaki asked how the video would be connected to the witness and ultimately overruled Baker's objection without stating a rationale.

# 1 (The following proceedings were held at the bench with the reporter.)

# 2 THE COURT:

Whose video is it?

# 3 MR. KELLY:

It was made by Gary Randa, who is the son of Kathy Randa, Mr. Simpson's personal secretary/administrative assistant for 20-odd years, Your Honor. It was made in June, 1994, shortly after Mr. Simpson's arrest, depicting the south walkway, the fence, the bushes and conditions.

# 4 THE COURT:

How did you get it?

# 5 MR. KELLY:

Pursuant to --

# 6 MR. PETROCELLI:

Court order. Your court order.

# 7 THE COURT:

Okay.

# 8 MR. PETROCELLI:

And here's --

# 9 THE COURT:

Is that who he is --

# 10 MR. PETROCELLI:

Gary Randa's under his control.

# 11 THE COURT:

Overruled.

# 12 MR. BAKER:

Wait. Wait a minute. I want to make a record.

This witness has never seen this tape, unless they played it to him. This witness has testified as to his percipient knowledge. They can not now put on a tape as affirmative evidence, without any foundation that it was played on June 28.

I'd like the rules of evidence in this courtroom to be equal to both sides. I'd like it to start now.

And I think this is ridiculous, that you can allow them to play a videotape without any -- without one bit of foundation, and put it on to a witness who says I didn't -- I didn't see this. This videotape was done on June 28, and for you to put this on -- on this witness without the witness's -- after they've rested their case is absolutely ridiculous.

You wouldn't even let me have a jury view. Now you're saying they can put on a tape when their case has rested, and a guy that says I didn't see it, I didn't even look.

I think it's ridiculous. I think there ought to be some -- some --

# 13 MR. PETROCELLI:

Keep your voice down.

Let me explain.

# 14 THE COURT:

How are you going to connect up the videotape with this witness?

# 15 MR. PETROCELLI:

If you go back and look in the record, through his leading questions yesterday, he got this witness to say that he didn't see anything on a heavy wooded area down the south side, that he observed no evidence that anybody could -- could come over the fence, and that he looked all the way down as far as he can look. He went through this in some detail yesterday on his examination.

This is the area right where the glove was found.

Okay, Your Honor.

And we're going to ask him whether he saw or didn't see that opening in the fence. Mr. Baker elicited testimony suggesting that he saw the area and did not see any evidence, any opening, any holes in the foliage, and he opened this matter wide open. We're allowed to cross-examine this witness on this point.

# 16 MR. BAKER:

The witness just testified --

# 17 MR. PETROCELLI:

He can't have it both ways.

And for the record, I want to object to these outrageous comments about the rules of evidence not applying evenhandedly. This is out of line.

# 18 MR. BAKER:

I don't care what you like, I'll tell you that, number one.

Number two, this witness has just testified that he didn't look. Now they're going to say look at this after I've got change of circumstances. It is change of circumstances --

# 19 MR. PETROCELLI:

A week or two --

# 20 MR. BAKER:

Let me finish.

# 21 MR. PETROCELLI:

Keep your voice down, Mr. Baker.

# 22 MR. BAKER:

On June 12 -- these murders occurred on June 13. The morning of June 13 is when -- the evening of June 12, morning of June 13 is when somebody would have to have gone over that fence. This video was taken on 6/28/94. They opposed, and you upheld the fact that we can't have a jury view because of change of circumstances. They had detectives traipsing all through there between the 12th and the 28th.

And I object to it. I think there's no foundation for it.

You can stop a hummingbird's wings in flight --

# 23 MR. PETROCELLI:

This is right where the glove was found, Your Honor.

KEY QUOTE

# 24 MR. BAKER:

It's a photo taken to accentuate exactly what he wants to show, and with a Nikkon, I can stop a hummingbird's wings flapping, I can't see them.

KEY QUOTE

# 25 MR. PETROCELLI:

You can see the top -- top of the fence posts are bent down. I asked Mr. Simpson at his -- his examination. He denied all this. He specifically went in with this witness, he asked four, five, six questions, you can go back and ask, yesterday he led him to say there's no evidence that anybody could come over that fence. He said it was heavy, thick, wooden, he used all these words to suggest that -- that Mr. Vannatter was able to definitively demonstrate that there was no break.

# 26 THE COURT:

When was this photograph made?

# 27 MR. PETROCELLI:

This photograph was taken -- and it's even better on the video. This was taken when we viewed the property about, when was it, in September or August of this year.

But the video is like two weeks after the murders. It's even better than this.

# 28 THE COURT:

Okay.

Overruled.

Temperature

heated

Key Quotes (4)

Robert Baker

You wouldn't even let me have a jury view. Now you're saying they can put on a tape when their case has rested, and a guy that says I didn't see it, I didn't even look.

Captures Baker's argument that allowing the tape after the opposing side had rested was inconsistent with the court's treatment of his requested jury view; the asserted earlier ruling remains Baker's account.

Daniel Petrocelli

Mr. Baker elicited testimony suggesting that he saw the area and did not see any evidence, any opening, any holes in the foliage, and he opened this matter wide open. We're allowed to cross-examine this witness on this point.

States Petrocelli's opened-door argument based on Baker's earlier examination; Fujisaki later overruled the objection without stating that this theory supplied the rationale.

Robert Baker

It's a photo taken to accentuate exactly what he wants to show, and with a Nikkon, I can stop a hummingbird's wings flapping, I can't see them.

Records Baker's camera analogy in support of his challenge to how the photograph portrayed the scene; he did not say that the video froze motion.

Daniel Petrocelli

This is right where the glove was found, Your Honor.

Identifies Petrocelli's stated connection between the depicted fence area and the location where the glove was found, without assigning a broader case theory.

Evidence (2)

Informal

Video that John Kelly said Gary Randa made in June 1994, depicting the south walkway, fence, bushes, and conditions; Baker said it was taken on June 28, 1994

Admission disputed and objections overruled

Informal

Photograph of the fence area taken during an August or September 1996 property view

Referenced by Petrocelli in comparison with the video

Notable Exchanges (2)

Robert Baker•Daniel Petrocelli•Hiroshi Fujisaki

Baker made an extended foundation and changed-conditions objection; Petrocelli twice told him to keep his voice down and argued that Baker's earlier questioning had opened the subject. Fujisaki asked how the video would be connected to the witness and overruled the objection.

heated

Robert Baker•Hiroshi Fujisaki

Baker argued that allowing the June 28 video conflicted with what he described as the court's earlier denial of a jury view because circumstances had changed. Fujisaki overruled the objection without explaining the ruling.

argumentative

Credibility Attacks (1)

⚔ Mr. Vannatter

opened-door argument based on Baker's earlier questioning

Petrocelli argued that Baker had elicited testimony about whether the fence area showed evidence of a crossing and had thereby opened that subject for cross-examination.

Objections

2 objections (0 sustained, 2 overruled)

Proceeding 8570 • 28 lines

Civil Trial

Department 103