Thank you, Your Honor.

I have reviewed the revised instruction proposed by the Court. I have a couple of comments for the record.

First of all, on the second page, at the top of the page, the first sentence says that there is no other evidence before you that Mr. Simpson took the lie-detector test and so forth. I have no quarrel with that statement.

I do quarrel with the statement two paragraphs down, where the Court says there is no evidence before you that Mr. Simpson took a lie-detector test, because there is evidence that Mr. Simpson gave, in the form of his answers, that he was hooked up to a test, and the jury can draw their own conclusion about what that meant. They don't have to accept Mr. Simpson's characterization; they can accept his exact factual rendition and conclude that he did take the test.

So I think that -- that is not accurate and it is inconsistent with the first statement made by the Court.

And secondly, the Court has only directed that the jury disregard my questions concerning the lie-detector test, but does not likewise ask the jury to disregard Mr. Baker's statements about the lie-detector test. And I think that it should be mutual in that regard.

Well --

Your Honor --

-- you had your opportunity to object to that statement at the time the opening statement was made, so that's gone.

I won't belabor that issue.

I would request again, without waiver of -- of our view that curative instructions are not adequate based upon People versus Aragon, A-R-A-G-O-N, 1957, 154 Cal.Ap.2d 646, People versus Schiers, S-C-H-I-E-R-S, 1970, 19 Cal.Ap.3d 102, and People versus Bentley 1955, 131 Cal.Ap.3d -- or 2d. Pardon me. 131 Cal.Ap.2d 687.

And I would request that -- the jury hasn't heard about attorney-client communications. Second paragraph of your proposed special instructions indicates something about attorney-client communications. And I think that -- that to raise that in a -- in an instruction that's meant to be curative, raises the issue that the information that Mr. Petrocelli gave the jury, through his questions to Mr. Simpson, came through attorney-client communications.

And that raises the sphere, at least in my mind, that that -- that the jury will believe that came through communications from attorney-client. And I think that just red-flags the issue, and would request that the second full paragraph be deleted. And other than that, without waiving the objections that we have, have no further objections to the Court's proposed special instruction.

Well, the Court put that in there because that seemed to have been one of the major points that you raised at the side-bench argument on that issue. So I -- out of an abundance of caution, the Court is going to give it.

Your Honor, we also raised the issue of the book. If we're going to put anything about communications, then -- I mean, you've deleted that.

Because it was raised at side bar, I'd respectfully request that the communications concerning attorney-client -- because I certainly did raise it, but I raised it at side bar out of the presence of the jury for the particular reason that you did not want the jury to infer that these communications came from his attorney, either now or at the criminal case.

And I think that we would be pleased to present the Court with the transcript of Mr. Schiller on MSNBC, which we will have momentarily, that indicates he doesn't know what was in this purported hook-up on June 14. Now he doesn't know if any questions were asked relative to the murders at all.

And so we're heightening this to a level that I think is inappropriate, in view of what we're trying to do is offer a curative instruction, I would submit.

We object to any reference to the Schiller book, as it was not part of any of my questions.

Your Honor, I apologize. The plaintiffs didn't object to taking communications between attorney client out, I did.

I'm going to leave it in, for the -- there was reference in Mr. Petrocelli's examination about attorneys from San Francisco and Mr. Simpson -- some arrangement being made with Mr. Gelblum, I believe, in regards to the "demonstration," as Mr. Simpson put it.

So I'm going to leave it out, out of an abundance of caution.

Bring the jury in.

Your Honor, we have a couple things.

We had subpoenaed a document, and the attorney for the organization which it is from, which it was subpoenaed, is here. She was under an order from probably a year ago now, from Judge Ito, not to disclose it.

Judge Ito said as long as you tell her to turn it over, he doesn't care; she can turn it over; but she wants to hear it from you, that she can turn it over.

Pamela Withey appearing for the witness that was subpoenaed today, the Ocean Park Community Center, for certain documents. They were also subpoenaed in the criminal trial. And during the course of that trial, a motion to quash was made and heard. At the conclusion of that, Judge Ito issued an order to me personally, stating -- since I was an officer of the Court, he could have control over that -- that I maintain the original of the documents and not allow them to be copied for any purpose at any time.

He also allowed one copy to be made for the prosecution, one for the defense, and ordered them also not to disseminate them to anyone, and so we have not.

We've now received the subpoena to produce a document here today. We have the documents. I would like to be relieved, of course, of the Court's order from Judge Ito.

In order to do so, I contacted Judge Ito's clerk, Yolanda, who indicated to me that basically, a motion may need to be made, but my discussion with counsel here this morning was that she indicated that Judge Ito would do whatever you felt was appropriate, since it is now within your jurisdiction.

Well, I don't have any motion before me. I don't even know what the document is.

We just subpoenaed it, Your Honor. It's a subpoena for some documents from a battered women's shelter, Sojourn House. We have a witness that we intend to call today who will be testifying about that document.

We have not ever had a chance to see the document. Yesterday, I spoke with Yolanda, Judge Ito's clerk, who was on the phone, and spoke to Judge Ito, and came back, he said, as long as Judge Fujisaki says it's okay to turn over the documents, it's okay with him; that was his case and this is your case now, and he doesn't feel -- it's your decision.

MR. P. BAKER: This is the first we've heard of the subpoena and the witness he's referring to, Nancy Ney, is subject to a motion to strike witnesses, which was filed this morning. Nancy Ney is a witness who says she received a phone call from a person named Nicole -- she doesn't know who -- if it's Nicole Brown Simpson, totally hearsay, and we object to the introduction of this document of her testimony as a result, and Nancy Ney's not a witness.

What's the document?

These documents were documents in the possession of the Ocean Park Community Service Center and the witness here the custodian is Vivian Rothstein, who is the director of that program.

The documents are call sheets filled out by a counselor working for the Community Service Center, a calendar and some additional notes filled out by the counselor with regard to a call that was made into the shelter.

The motion to quash was subject to Evidence Code 1035, which had nothing to do with the civil matter; it had to do with admissibility of call sheets in a criminal case. But during that hearing, Judge Ito did find that the documents -- made a threshold finding of elements of the documents, after having reviewed the documents.

The evidentiary issues are another matter. All I'm here to say is that I'd be delighted to turn them over, but I just need to be relieved of the court order; that's all.

Okay. It's within my power. You're relieved.

Thank you, Your Honor.

MR. P. BAKER: I would like to put on the record that Judge Ito quashed the subpoena.

I don't have any -- there's no standing on that issue at all.

Anything else?

Yes, Judge.

Judge, with regard to two issues regarding witnesses on our witness list. One witness, Alfredo Acosta, who's under subpoena and was listed to appear today, he's in El Paso, Texas; his father is very ill, and he's not expected back for several days. And he's expressed a willingness to testify and will appear when he's able to get back from caring for his father in El Paso.

The second one is Robert Kardashian, who is not subpoenaed, but I had dealt with Janet Levine, his attorney, and had spoken to her last Wednesday and last Friday, and she had indicated there was no reason at that time to serve Mr. Kardashian, and that he was out of town; he would be back last Saturday or Sunday. And she discussed with him his appearance. We talked about his appearing Wednesday morning to testify, the scope of his examination, and whether or not she was going to appear with him.

And she never -- she indicated to me there was no reason to serve him at that time.

I expressed a willingness to do so. She asked to hold off as a courtesy.

It was only yesterday, at 2:30 in the afternoon, that she left a message in my New York office that he would not appear without a subpoena, and that she would not accept a subpoena on his behalf. And he is still on the east coast at this time.

And what I would ask for, Your Honor, based on her prior representation, that with regard to Mr. Acosta and Mr. Kardashian, that when they become available, that we be allowed to reopen our case if we've rested, at the time when they do become available, just for the limited purpose of calling them. And we expect it to be short and limited testimony.

Your Honor, obviously, in view of the way that the plaintiffs have put on their case, I would object to that. I mean, when we had Detective Vannatter on the witness stand, or Detective Lange, they wouldn't let us go into anything that was outside the scope of what they felt were the parameters of their case.

And I certainly am not going to, at least without objection, agree that they can interrupt our case to put their witnesses on.

He had the right to subpoena Kardashian and he had the right to subpoena and get Mr. Acosta in here.

Well, Mr. Acosta, I think, has a reasonable excuse. So I will permit Mr. Acosta to be called out of order.

Mr. Kardashian - if you wanted him, you should have subpoenaed him.

MR. P. BAKER: Can we have Mr. Acosta testify following the presentation of our case?

Whenever he's available.

MR. P. BAKER: Can we find out beforehand if he's available come January?

Yes. I'll find that out.

With regard to Mr. Kardashian, we relied on representations of counsel.

Doesn't sound like a good cause to me.

The jury is right here.

We have another issue, on the issue of Mr. Wayne Hughes.

Mr. Wayne Hughes is apparently their first witness. Mr. Hughes, I think, at least in his statement to the District Attorney, indicated there was an incident that he may be asked about this morning, and that was an incident that occurred, he now has recollection, in 1979 and 1980, when Nicole Brown Simpson came to his house, saying that Mr. Simpson may have had physical contact with her.

Mr. Hughes never discussed this matter with Mr. Simpson and will so testify. He has no knowledge of whether Nicole Brown Simpson's representations to him were accurate. He asked Nicole Brown Simpson -- at least he'd be prepared to testify that if she wanted him to ever discuss this with O.J. Simpson, she said no.

And based upon the hearsay nature of it, the remote nature of '79 or '80, we move to exclude any reference to -- to incident number one, if you will.

And then he discussed the 1989 incident, and he's prepared to testify. And we have no objection, obviously, of him testifying about that.

Your Honor, under People versus Zack and People versus Linkenauer, the relationship -- the relationship between the defendant and the victim is relevant to the issue of motive and identity. And the Court specifically pointed out that acts of physical violence in that relationship are particularly relevant, in addition to evidence of quarrels and antagonism or enmity.

Now, in addition to that, Your Honor, which Mr. Hughes will testify about, Mr. Simpson categorically denied ever hitting Nicole. And this evidence is offered to directly impeach that testimony.

Moreover, Mr. Baker, in his opening statement, described for about the first hour or so, the nature of the relationship between Nicole Brown Simpson and Mr. Simpson, and specifically represented to the jury that there was only one physical altercation in 1989.

And we will be producing a series of witnesses, each lasting about five to ten minutes, to evidence that there were other acts of violence in the relationship.

MR. P. BAKER: Judge, regarding the remoteness, People versus Zack does not say that. People versus Zack is a murder case where the decedents died in 1982 and the issue was the stormy -- and the Court said it -- the stormy up and down relationship from 1978 to 1980. That's four years.

This issue is 16 years, and we believe the Court should be directed to People versus Gonzales, where it held the victim's representation to violence seven years before the crime was held too remote for evidentiary value.

Thirdly, Judge Ito already rendered a ruling on this, and I submitted it as Exhibit A to my motion, and Judge Ito found that it was too remote, and he said "this event provides only indirect evidence of assaultive conduct. The probative value of this incident is, therefore, much diminished when compared with the Court's time that would be -- would be required in the presentation. It's been collaterally estopped. It's too removed. We think People versus Gonzales binds the Court --

How is it collaterally estopped?

MR. P. BAKER: Judge Ito rendered a ruling when it was remote in time in relation to the crimes of June 12, 1994.

I don't think the concept of collateral estoppel applies here.

MR. P. BAKER: The same issues reliance -- they've relied on collateral estoppel throughout the case, we relied on Judge Ito's ruling, holding O.J. Simpson over for their motion for punitive damages. This opinion was rendered. It was decided it was held too remote. It's characterized by hearsay.

Well, I think the doctrine of collateral estoppel would apply to Mr. Simpson, but would not apply to Mr. Goldman.

MR. P. BAKER: The issues were the same.

Parties.

You still --

Yes absolutely. You still have to put the evidence on by competent evidence. You -- that's what we're talking about here is the hearsay.

Well, it's not collateral estoppel, so that's out.

You want to address the hearsay issue?

Yes, Your Honor.

First of all, unlike the criminal case, the defense in this case has proffered Nicole's state of mind as -- and as was ruled on the 16th of September in connection with the motions in limine, Nicole's state of mind is directly relevant to the issue of the relationship between Mr. Simpson and Nicole.

So, number one, her state of mind furnishes an exception to get in this testimony.

And secondly, in this particular case, as Mr. Hughes will testify, Mr. -- Nicole came running to his house after being hit by Mr. Simpson, was extremely upset, and it would qualify, certainly, as a spontaneous statement. She also showed Mr. Hughes the mark on her body where Mr. Simpson had hit her.

And again, I emphasize that in opening statement, Mr. Baker's spent quite a bit of time characterizing this relationship between the two and pointing out that there wasn't any violence or physical alterations, except on one occasion. And Mr. Simpson, at no time in his testimony, limited his answers. He said "never," categorically, did he ever touch Nicole, slap her, strike her, hit her, and so forth.

In 1979 -- first of all, the -- my remarks in opening statement were in response to the plaintiffs' remarks. They proffered her state of mind, not us.

Number two is the -- the hearsay statements are -- are definitely not spontaneous declarations. You're not going to hear that Mr. Wayne Hughes lives next door to O.J. Simpson.

Number three, they're so remote in the time as to be irrelevant and immaterial to any issue in this case. They're talking about 15, 16 years prior to the murders that they are attempting, in this case, to hold Mr. Simpson responsible for.

Okay. I'll permit Mr. Hughes to testify to the '89 incident, but not the '79 incidents.

Your Honor --

Let's get on with the trial.

Well, Your Honor, I object to this. I -- just because he makes this argument -- I mean, Mr. Simpson categorically testified that he never once hit Nicole and --

Mr. Petrocelli, I've heard your argument. I've made my ruling.

Okay.

Jury walking in.

All right; don't call him.

What's the ground, Your Honor, remoteness?

That's right. 352.