Okay.

The Court, in chambers, gave counsel the special instruction that the Court intends to give to the jury with regards to examination of Mr. Simpson last week.

And at this time, if you have any comments for the record, you may make them.

Thank you, Your Honor.

I just read the Court's proposed instruction. As I understand it, it basically points out to the jury that Mr. Baker, in his opening statement, spoke on the subject of the lie-detector test and thereby opened up the subject to examination by the plaintiff.

The Court then goes on to say that, however, by Mr. Baker opening the door, he didn't permit me to inquire into confidential communications.

None of my questions, Your Honor, inquired into confidential communications in regard to this subject matter. That's point 1.

Point number 2: In the Court's proposed instruction to the jury, it operates under the assumption that I asked questions of Mr. Simpson about Mr. Schiller's book and literally referenced Mr. Schiller's book.

At no time did I do so.

I specifically avoided mentioning Mr. Schiller's book at all in my questions because I didn't want to get into the thorny issues of privilege.

I've just had an occasion to review the transcript of my examination of Mr. Simpson on this subject, and there is absolutely no mention, as far as I can see, to Mr. Schiller or his book.

And so I would object to the text of this being mentioned to the jury because you're pointing out things that are actually not accurate. I at no time referenced the Schiller book. The jury shouldn't be told that I did so.

Well, Mr. Petrocelli, if you recall from your examination of the transcript, that you made pointed reference to the book at side bench, so I think there was a reasonable inference that that's what you were referring to.

But the jury doesn't have any knowledge about the Schiller book, and the side-bar conferences were out of the presence of the jury. And I didn't bring up the Schiller book. I mean, that was a point that Mr. Baker kept bringing up in regard to the privilege issue.

And the issue -- point I want to make, Your Honor, is that this issue of the lie-detector test, first of all, this was brought up initially by Mr. Baker, who made a very strong point in his opening statement, that Mr. Simpson was absolutely willing to take one and the police refused. And the only inference to be drawn therefrom, and the only reason why he made such a statement, is to suggest that Mr. Simpson was innocent; if he took a lie-detector test, he would have passed it. There is no other reason to make such an argument to the jury.

You made no objection at that time, if you recall.

The statement is out.

You could have made an objection.

And secondly --

You didn't make an objection, so I assume you had something in mind when you failed to make your objection.

Mr. Baker opened the door and fully intended to follow up on it.

And the second thing, Your Honor, is that -- I think if you go back and look the at transcript, I didn't launch into this line of examination. Mr. Simpson brought out the issue of the lie-detector test, once again, or his willingness to take one. And I then followed up on it. In other words, I believe if you'll look at the transcript, that he volunteered it again on his own, not in response to a question of mine, but just added something about wanting to take a lie-detector test.

And then I followed up on it, now having been -- it having been referred to twice by the defense: Once by Mr. Simpson and once by Mr. Baker.

I did not initiate any of this dialogue about a lie-detector test.

Having said all that, I believe that if Your Honor wants to give some kind of instruction, it has to be more balanced and more even-handed. I don't believe this accomplishes that.

And I also believe that this is highly inaccurate because it says that I referred to a book written by Mr. Schiller, and I at no time did so. And you have a big, long paragraph here about my talking about the Schiller book. And I don't think it's appropriate to be telling the jury anything at all about the Schiller book, in particular that I referred to the Schiller book, Your Honor, because I did not do so. And I was steadfast in avoiding the subject altogether.

So I would ask that this be modified. I would propose drafting something if Your Honor would like, but this, I don't believe, is appropriate.

Your Honor --

Yes?

Two things. One, in my opening statement I didn't refer to him taking a lie-detector test; I referred to the offer to take a lie-detector test. And there is, in a total of six hours of opening statement, two sentences, as I went back and looked at it, because we had prepared a motion that we were going to file with the Court this afternoon on this very issue, requesting a mistrial because of the introduction of the evidence of the lie detector -- the polygraph information.

As the Court will recall, we made -- Mr. Blasier made a motion relative to the Schiller book before Mr. Simpson took the stand, and the Court overruled that motion. The Schiller book was sitting right on counsel table with Post-Its, in front of Mr. Petrocelli during his examination of Mr. Simpson.

I had asked on two occasions that that book be removed from counsel table. The plaintiffs' attorneys would not and did not do it.

They certainly referred to it.

I went back yesterday -- I looked at the -- the piece in the book relative to the polygraph examination that is mentioned in the book and -- and that indicates that that examination, which was never an examination, was done on the 14th, when Mr. Simpson admitted that he was hooked up to it, but the test was never completed.

Mr. Petrocelli, in an effort to mislead this jury, kept talking about the 15th in the transcript because he wanted to mislead the jury, because on the 15th was the letter written to Vannatter and Lange, indicating that Mr. Simpson would take a polygraph test.

But we made that motion and I don't think that any jury instruction is curative of the evidence that has gone before the jury.

In fact, I'll have the motion here momentarily. We were waiting, Your Honor, to file that motion because Schiller, on November 25, on MSNBC, in an interview, indicated that he didn't know what the content of this purported hook-up was, whether there were any questions asked about the murders. All he apparently reported was that there was a test score; that he doesn't know whether it was a completed test or anything.

I wanted to include that.

But in any event, there are California cases which I will have momentarily and cite to the Court, where after a curative instruction such as the Court proposes, was given to a jury. And after a jury verdict was returned, on appeal -- the Court of Appeals reversed, saying you cannot -- a curative instruction simply does not work.

And so I would suggest that the Court mistry this case and, unfortunately, start all over again.

We did not discuss taking of a lie-detector test, which I would suggest to the Court, is far different than what Mr. Petrocelli put before the jury. He got them to assume that a test was taken, it was completed, that the score was minus 22. That was extremely deceptive.

If the Court will review -- I believe it's Evidence Code Section 351.1, the Court will see that before any of that evidence can get to the jury, there has to be a stipulation. There was never a stipulation by this side; and therefore, I think it is imperative and obligatory that the Court mistries this case, and this case be sent down for trial again, at some subsequent date.

And that is because, even after we were at the side bar, we had an unlimited discussion relative to this issue. The Court overruled my objection. Mr. Petrocelli went right into it, went right into the fact that -- that there was a polygraph test taken, went right into the -- this purported score.

There's only one place that I've ever read that, and that's in the Schiller book.

First of all, Your Honor, I haven't gotten any motion for a mistrial yet, so it's premature to argue that.

I will point out that Section 351.1 applies specifically and only to criminal proceedings, not civil proceedings.

Well, I'm not inclined to do anything other than to instruct the jury relative to your examination of Mr. Simpson.

And I'll take a few moments to review my instruction and make any alterations I feel that are necessary. And I'll have the jury come out, and I'm going to give the instruction, and then we'll proceed with the trial.

The pertinent questions are Section 191 of the -- Page 191 of the transcript, Your Honor.

Okay.

Your Honor, I will give the Court cases citing the 351.1 application to civil cases within -- shortly.

Mr. Baker, you know, I've come this far, and if it's your opinion that a curative instruction will not do, then that's your opinion.

I understand.

I understand that, sir.

Let me say, you said I spoke on the subject of a lie-detector test. There are two sentences in six hours. So I don't think I spoke on the subject. I mentioned the offer to take a lie-detector test.

Well, I mean, you can have your opinion, Judge, and --

That is my opinion.

All right.

Your Honor, I had one other matter before the jury came in, before witnesses --

Well . . .

Okay.