Sidebar: custody proceeding testimony

📄 Sidebar: custody proceeding testimony — Tuesday, December 3, 1996

Address:

C:\DEPT103\CIVIL\1996\DEC\3\SIDEBAR-CUSTODY-PROCEEDING-TES.DOC

TRIAL

▲ Day 24 of 57

◀ Redirect examination of Albert Aguilera (part 1) Redirect examination of Albert Aguilera (part 2) ▶

Date: Tuesday, December 3, 1996 • Utterances: 4

A brief sidebar in which attorney John Kelly objected to Robert Baker's attempt to use testimony from a sealed custody proceeding to impeach a witness. Petrocelli joined the objection on fairness grounds, noting he had no access to the sealed materials. Judge Fujisaki sustained the objection.

# 1 MR. KELLY:

Your Honor, I believe that the custody proceeding is a totally sealed proceeding, both the transcript and everything testified to therein.

I would object to any potential impeachment Mr. Baker may be contemplating with regard to this witness and that testimony.

# 2 MR. BAKER:

Well, Your Honor, you can't testify one place independent, perjure one thing and someplace else. Regardless of whether he -- -- that whole custody thing is such a -- you know -- I mean, Mr. Kelly's associate in this case is -- his associate in this case is pursuing that case down there.

They're using the very same witnesses.

If they're going to misrepresent the truth in one case, they're going to misrepresent the truth in the other case.

I think I'm entitled to go through this. I've got transcripts of this guy down there. I think I'm entitled to go into it.

KEY QUOTE

# 3 MR. PETROCELLI:

I object to -- I want to object to this record -- I've had zero access to any of the materials or the transcripts in that case. I don't have access to Simpson's transcript. I don't know what Mr. Kelly's position is regarding access, but it seems fundamentally unfair if there's a sealing order in that case and Mr. Baker has testimony that I don't have.

That's number one.

# 4 THE COURT:

Sustained.

Temperature

tense

Key Quotes (2)

Robert Baker

You can't testify one place independent, perjure one thing and someplace else.

Baker's argument for why sealed proceedings should not shield a witness from impeachment on inconsistent testimony.

Daniel Petrocelli

It seems fundamentally unfair if there's a sealing order in that case and Mr. Baker has testimony that I don't have.

Petrocelli reveals a procedural asymmetry — Baker apparently had access to sealed transcripts that co-counsel Petrocelli did not, raising fairness concerns.

Evidence (1)

Informal

Transcripts from a sealed custody proceeding involving the same witness

disputed — Baker sought to use for impeachment, objection sustained

Notable Exchanges (1)

Robert Baker•Daniel Petrocelli

Baker argued he was entitled to impeach using sealed custody transcripts he possessed; Petrocelli objected that he had zero access to those same materials, creating an unfair asymmetry.

strategic

Credibility Attacks (1)

⚔ unidentified witness

prior inconsistent statement from sealed custody proceeding

Baker attempted to cross-examine with testimony the witness gave in a separate sealed custody proceeding, arguing a witness cannot perjure in one forum while testifying differently in another; objection was sustained.

Objections

2 objections (1 sustained, 0 overruled)

Proceeding 8426 • 4 utterances

Civil Trial

Department 103