Direct examination of Ronald A. Fischman

📄 Direct examination of Ronald A. Fischman — Wednesday, December 4, 1996

Address:

C:\DEPT103\CIVIL\1996\DEC\4\DIRECT-EXAMINATION-OF-RONALD-A.DOC

TRIAL

▲ Day 25 of 57

◀ Exhibits admitted; Ronald A. Fischman sworn in Cross-examination of Ronald A. Fischman ▶

Witness: Ronald Fischman
Examiner: Dan Leonard
Called by: Defense • Date: Wednesday, December 4, 1996 • Utterances: 370

Plaintiff's attorney Michael Brewer conducts direct examination of Dr. Ronald Fischman, a neurologist and close friend of both O.J. Simpson and Nicole Brown Simpson since 1990. Fischman testifies about Simpson's growing frustration with Nicole in the weeks before her murder, Nicole's extraordinary anger over a retaliatory IRS letter from Simpson, and Simpson's unusually subdued demeanor at the June 12 dance recital hours before the murders. The examination relies heavily on deposition impeachment when Fischman qualifies or walks back prior sworn statements.

# 1 Q:

Good morning, Dr. Fischman.

Dr. Fischman, you are a neurologist and an internist; is that correct?

# 2 A:

That's correct.

# 3 Q:

And you know Mr. Simpson, and have known him since 1990, is that true?

# 4 A:

That's correct.

# 5 Q:

And in 1990, you became familiar with the Simpson family, Nicole, O.J. Simpson and their children; is that true?

# 6 A:

Yes.

# 7 Q:

And a relationship developed between the children first, Nicole and your ex-wife Cora Fischman, then you and Mr. Simpson became quite friendly, is that true?

# 8 A:

Yes.

# 9 Q:

And you have remained friendly with him through today, is that true?

# 10 A:

I've -- I see him occasionally when I pick up and drop off the children.

# 11 Q:

When you see him, you talk to him, you have friendly conversation with him, true?

# 12 A:

Brief conversation.

# 13 Q:

And during the time period that you've known Mr. Simpson --

# 14 MR. PETROCELLI:

Can you speak into the microphone?

# 15 MR. BREWER:

Yes, speak into the microphone.

# 16 Q:

(BY MR. BREWER) During the time period that you've known Mr. Simpson, you've had occasion to go to dinner with he and Nicole, true?

# 17 A:

Yes.

# 18 Q:

And you've had occasion to go over their house and visit; is that true?

# 19 A:

Yes.

# 20 Q:

And you've also had occasion to take vacations with one another; is that true?

# 21 A:

Yes.

# 22 Q:

And in fact, in 1994, you went to the Super Bowl together, true?

# 23 A:

Yes.

# 24 Q:

That was just you and your ex-wife Cora Fischman, Mr. Simpson and Nicole, true?

# 25 A:

Yes.

# 26 Q:

And you also had a vacation together in Hawaii, true?

# 27 A:

Yes.

# 28 Q:

Okay.

And over the course of six years, you spent quite a bit of time with Mr. Simpson, vacationing, going to dinner, visiting at their house and so forth, true?

# 29 MR. LEONARD:

Objection, leading, Your Honor.

# 30 MR. BREWER:

You made a ruling in chambers.

# 31 MR. LEONARD:

Okay.

# 32 RONALD FISCHMAN:

Could you repeat --

# 33 MR. LEONARD:

Withdrawn, Your Honor.

# 34 RONALD FISCHMAN:

Would you -- could you repeat the question.

# 35 Q:

(BY MR. BREWER) Over the course of the six years that you've known Mr. Simpson, you've had ample occasion to interact with him on vacation, going to dinner, going over to his home, going to events, things of that nature, correct?

# 36 A:

The events that you noted are the ones that existed, yes.

# 37 Q:

Okay.

And while Mr. Simpson was incarcerated, you visited him on two occasions, is that true?

# 38 A:

That's correct.

# 39 Q:

Now, Dr. Fischman, focusing for the moment on the two-and-a-half, three-month period before Nicole's murder, April, May and June of 1994, you had occasion to speak with Mr. Simpson concerning his feelings about Nicole during that time frame, true?

# 40 A:

Yes.

# 41 Q:

And you spoke with him both by telephone and in person, regarding his feelings about Nicole during that time frame, true?

# 42 A:

Yes.

# 43 Q:

And the statements -- strike that.

Mr. Simpson told you in or about April of 1994 that the relationship with Nicole had become a little bit rocky, true?

# 44 A:

What month was that again?

# 45 Q:

April of 1994.

# 46 A:

Yes, I believe that's true.

# 47 Q:

And Mr. Simpson had telephoned you in that same month when he was in Puerto Rico shooting a film, the film "Frogman," true, or the pilot "Frogman," true?

# 48 A:

Yes.

# 49 Q:

And he had phoned you from Puerto Rico looking for Nicole, is that true?

# 50 A:

I don't recall if he was specifically looking for Nicole.

# 51 Q:

And when Mr. Simpson telephoned you and spoke with you during the month of April, he indicated to you that he was having difficulty communicating to Nicole, true?

# 52 A:

Yes.

# 53 Q:

And he also told you that Nicole wasn't available to him and would not return his calls; he told you that, didn't he, sir?

# 54 A:

He was having difficulty communicating with Nicole, yes.

# 55 Q:

He also told you that Nicole was abrupt and short with him on those occasions when they did have telephone conversations, true?

# 56 A:

Yes.

# 57 Q:

And he also told you that Nicole was being cold -- cold, difficult, short and avoiding him, true?

# 58 A:

She was being difficult to reach, to communicate with, yes.

# 59 Q:

She was being short with him, true?

# 60 A:

On occasions she would be short with him.

# 61 Q:

She was cold and difficult for him to deal with, true?

# 62 A:

It became increasingly more difficult during that time frame, yes.

# 63 Q:

And, Dr. Fischman, Mr. Simpson told you that as a result of this, he felt as though he was being ignored, true?

# 64 A:

I don't recall that statement.

# 65 MR. LEONARD:

Can I just have an objection, vague as to time with this particular conversation.

# 66 THE COURT:

Overruled. I think we're talking about April through June.

# 67 MR. BREWER:

That's correct.

# 68 A:

Yes. I don't recall that specific comment.

# 69 Q:

(BY MR. BREWER) Okay.

Sir, you remember having a deposition taken in this case?

# 70 A:

Yes.

# 71 Q:

And you understood at the time of the deposition that you were placed under oath?

# 72 A:

Yes.

# 73 Q:

And you were questioned by Mr. Petrocelli and myself during the course of that deposition?

# 74 A:

Yes.

# 75 Q:

And you understood at the time of that deposition, that the testimony that you provided therein had the same force and effect as the testimony that you're giving today in court in front of this jury, true?

# 76 A:

Yes, sir.

# 77 Q:

Like to read from your deposition testimony --

# 78 MR. LEONARD:

Object. There's no foundation. He says he doesn't recall. If what he's trying to do is refresh his recollection, I don't have an objection. He said he doesn't recall.

# 79 THE COURT:

You may refresh his recollection.

# 80 MR. BREWER:

Let me put this on the Elmo.

(referring to transcript).

# 81 MR. LEONARD:

Can we have the page.

# 82 MR. BREWER:

Page 69, line 10 through 11.

# 83 MR. LEONARD:

Before you put it -- just -- before you put it up, can I have --

# 84 MR. BREWER:

Yeah.

Hold one second.

# 85 MR. FOSTER:

67?

# 86 MR. BREWER:

69.

# 87 MR. LEONARD:

Which line? I'm sorry.

# 88 MR. GELBLUM:

10 to 11.

MR.LEONARD: That's part of an answer. You going to read the question?

# 89 MR. BREWER:

Yeah. Put the whole thing on the Elmo.

# 90 Q:

(BY MR. BREWER) Read it, Dr. Fischman, see if it refreshes his recollection.

# 91 MR. BREWER:

You have any objection?

# 92 (Nods.)

# 93 MR. BREWER:

Okay.

# 94 (Transcript page is displayed.)

# 95 MR. LEONARD:

I think it would make more sense to put the whole thing in context, but go ahead.

# 96 Q:

(BY MR. BREWER) I'm going to ask, Dr. Fischman, if you could look at the answer, where it says "The Witness." And just for the moment, read that to yourself and see if that refreshes your recollection. And I'll reask the question.

# 97 (Pause for witness to read transcript.)

# 98 A:

I said that I believe -- it says, "maybe he felt like he was being ignored."

I think that accurately reflects my memory of that, yes.

# 99 Q:

And so that refreshes your recollection, that in discussions with Mr. Simpson, that it was your sense based upon those discussions, that he felt as though he was being ignored by Nicole, true?

# 100 A:

To the best of my recollection.

# 101 Q:

Okay.

And in your discussions with Mr. Simpson during that same time frame, you felt that -- strike that -- he indicated to you that he was frustrated, true?

# 102 A:

Yes.

# 103 Q:

He indicated to you he was confused, true?

# 104 A:

Yes.

# 105 Q:

And he also indicated to you that he felt Nicole was rejecting him, true?

# 106 A:

I don't recall him using that word, but I'm -- I'm certain he felt that, yeah.

# 107 Q:

Okay.

And you -- when you say you're certain he felt that, that's based upon your recollection as you sit here today of conversations you had with O.J. Simpson in the three-month period before Nicole's death, true?

# 108 A:

It's reflective of the combination of statements and conversations we had during that time period, yes.

# 109 Q:

Okay.

Now, Mr. Fischman, in June of 1994, you had occasion to have a conversation with Nicole Brown in your kitchen, is that true?

# 110 A:

Yes.

# 111 Q:

And during the course of that conversation, an IRS letter came up?

# 112 MR. LEONARD:

I'm going to object to this as hearsay.

# 113 MR. BREWER:

Spontaneous declaration, state of mind.

# 114 MR. LEONARD:

I ask he not make speaking objections. If we could approach.

# 115 THE COURT:

Approach the bench.

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

# 117 MR. LEONARD:

I assume what Mr. Brewer's trying to elicit is a statement from Nicole Brown Simpson regarding her state of mind about IRS -- the IRS letter from Mr. Simpson.

I -- I understand Your Honor's ruling. Don't necessarily agree with it, but I understand it.

I don't know how this fits into this state of mind exception as you have articulated in this trial.

# 118 MR. PETROCELLI:

This is a summary I'm showing you, Your Honor, of the testimony on this point. He testified that Nicole was extremely upset and was devastated by this letter, and it provoked an immense amount of anger, and it's critical to the understanding of what was going on in the last week, particularly since Mr. Simpson threatened Nicole and followed through by sending this letter, and this letter was a key event in what led to the final event on the 12th of June, and Nicole's reaction to it, and what happened to the -- between the parties in the ensuing days.

# 119 MR. LEONARD:

How can he say it was a key event? The letter -- I mean the letter is -- at best is a threat -- a financial threat at best. What does that have to do with any potential motive to murder in this case? I don't understand that; I've never understood that.

# 120 MR. PETROCELLI:

Because Nicole disagreed with you, she said how could he do this to the mother of his children, she was forced to leave her home with her children. That's why.

KEY QUOTE

# 121 MR. LEONARD:

Yeah, and that's why -- exactly why you want it in. It has nothing to do with motive of murder.

He just wants to smear my guy up with that statement. That's all this is for, that's all it's for. It has no probative value. If it does, the prejudicial value is outweighed. What the hell does that have to --

# 122 THE COURT:

What are you offering it for?

# 123 MR. PETROCELLI:

Offering it to show the conduct of the parties in the last week leading up to Nicole's death, her state of mind.

# 124 THE COURT:

Conduct of which party?

# 125 MR. PETROCELLI:

The conduct of Nicole Brown Simpson. Her reaction to the letter from Mr. Simpson, what anger and hostility it provoked in her and what she did in rejecting him the remainder of that week, including on June 12, and why she did so. It explains her conduct, which is highly relevant to his motive to kill her.

# 126 MR. BREWER:

And let me add one thing. Because it will also help to explain her subsequent conduct, that I will get into in a moment, at the recital, where there is going to be testimony relative to Mr. Simpson's interaction with Nicole Brown Simpson at the recital. This letter is an integral part of the observations that this witness -- and the attitudes that these people expressed to one another.

# 127 MR. PETROCELLI:

He specifically will testify that, unlike Simpson, that there was a coldness, a chilliness, and no communication at all between Simpson and Nicole, and that Nicole took the kids and whisked them away at the end of the recital.

Excuse me, you're sitting on my tie.

# 128 (Referring to Mr. Leonard's elbow on Mr. Petrocelli's tie on side bar.)

# 129 MR. LEONARD:

I wasn't sitting on anything.

Your Honor, this is -- I mean enough is enough. This is an absolute, pure, unadulterated attempt to smear my client. Especially this part about the kids. I mean that's ridiculous.

This notion of a motive based upon some speculative concept that she was mad at him and then he got mad at her, I mean, Your Honor, how far are we going to go with this.

# 130 MR. PETROCELLI:

That's for the jury to decide, not you.

# 131 MR. LEONARD:

I agree. But it's also for me to point out to the Court that at some point the probative value becomes so lessened and the prejudicial value is too great, particularly the statement about the kids, that it becomes inappropriate. I really feel very strongly --

# 132 MR. BREWER:

Not this close to the murders.

# 133 THE COURT:

It appears to the Court that the essential position of the plaintiff is that it's being offered to show Nicole Simpson's state of mind in terms of her relationship with the defendant, which appears to be contrary to the version of the relationship as testified to by Mr. Simpson, and I think, for that reason the Court will allow it.

Overruled.

# 134 (The following proceedings were held in open court in the presence of the jury.)

# 135 Q:

(BY MR. BREWER) Dr. Fischman, I want to direct your attention to a discussion you had with Nicole a week or so before the murders, concerning an IRS letter, in the kitchen, correct?

# 136 A:

Yes.

# 137 Q:

You had such a discussion, didn't you?

# 138 A:

Yes.

# 139 Q:

And she told you about a letter she had received from Mr. Simpson regarding a request on his part that she not list the Rockingham residence as her primary residence, true?

# 140 A:

Yes.

# 141 MR. LEONARD:

May I have a running objection.

# 142 THE COURT:

Yes.

# 143 MR. LEONARD:

Thank you.

# 144 Q:

(BY MR. BREWER) And during the course of this conversation that you had with Nicole, she was angry about the fact that she had received this letter, true?

# 145 A:

Yes, she stated that she was -- it wasn't a conversation, I was listening to her. She was very upset about having received the letter.

# 146 Q:

In fact, she was angrier about receiving this letter -- more angry than she had ever been -- than you had ever seen her since you had known her, true?

# 147 A:

She was extraordinarily angry.

KEY QUOTE

# 148 Q:

And she told you that the reason why she was angry is she couldn't believe Mr. Simpson would do this, to put a wife -- his ex-wife, the mother of his children, and his children out on the street, true?

# 149 A:

That part I don't recall right now.

# 150 Q:

Do you recall testifying at your deposition that Nicole Simpson said to you --

# 151 MR. LEONARD:

Page and line, please.

# 152 MR. BREWER:

Page 107, lines 4 through 7.

# 153 Q:

(BY MR. BREWER) Do you recall saying that, sir, that she couldn't believe O.J. would do something like that to the mother of his children?

# 154 A:

I believe that's what I said, yes.

# 155 Q:

You said that -- at your deposition, under oath, that's what she said to you in the kitchen during that conversation, true?

# 156 A:

I believe that's what she said, yes.

# 157 Q:

And she also indicated to you that Mr. Simpson was doing this because he was retaliating against her because she ended the relationship, true?

# 158 A:

No, that's not true.

# 159 Q:

She indicated to you that he was doing this to retaliate against her, didn't she, sir?

# 160 A:

No, that's not true.

# 161 Q:

Now, Mr. Fischman, I want to move ahead to the recital.

There was a recital held on June 12, 1994, and your daughter was one of the participants in the recital, true?

# 162 A:

Yes.

# 163 Q:

And the recital was to be held between 5 and 6 o'clock that evening; is that correct?

# 164 A:

Approximately, yes.

# 165 Q:

And your wife -- your ex-wife was going to be there; is that correct?

# 166 A:

Yes.

# 167 Q:

And you understood that Mr. Simpson and Nicole were going to be there, true?

# 168 A:

I didn't spend my time thinking about it, but yes, when I got there, it was apparent they were going -- both going to be there.

# 169 Q:

Because their daughter was also participating in the same recital, true?

# 170 A:

Yes.

# 171 Q:

When you got there -- you arrived a little bit late, is that true?

# 172 A:

I believe so, yes.

# 173 Q:

And you went into the auditorium and you sat down with your family; is that correct?

# 174 A:

Yes.

# 175 Q:

And after you sat down, you turned around and made observations -- or an observation with respect to Mr. Simpson and Nicole, correct?

# 176 A:

Yes.

# 177 Q:

And they were seated at the rear of the theater, is that true?

# 178 A:

Yes.

# 179 Q:

And with respect to the observations that you made of them at that time, you sensed that there was a chill between them, correct?

# 180 MR. LEONARD:

Objection, calls for speculation and lack of foundation.

# 181 THE COURT:

Sustained.

# 182 Q:

(BY MR. BREWER) Well, during the time period that you made observations of them in the theater, did you ever see them speak with one another?

# 183 A:

As I said in my deposition, it was a very chaotic situation with parents and children running all over the place. I turned around and I believe I saw Nicole and O.J. sitting next to each other. I don't recall them having any dialogue or conversation, but it would have been difficult to determine that based on where I was sitting.

# 184 Q:

So, sir, you never saw them embrace in the auditorium, did you?

# 185 A:

Correct.

# 186 Q:

You never saw them kiss, did you?

# 187 A:

No.

# 188 Q:

You never saw either one of them smile, did you?

# 189 A:

I don't recall.

# 190 Q:

In fact, you never even saw them look at one another in that auditorium, true?

# 191 A:

I don't recall. I wasn't in a position to see that as I -- as I've explained.

# 192 Q:

Um-hum.

Now, at an intermission, Dr. Fischman, you went out into the lobby and you had a discussion with Mr. Simpson in the lobby; is that correct?

# 193 A:

No. There was no break.

I think at one point I got up to stretch and O.J. was out in the lobby also, yes.

# 194 Q:

And you spoke with him for about 5 to 10 minutes; is that correct?

# 195 A:

Something like that.

# 196 Q:

And during that time frame, Mr. Simpson indicated to you that he was tired, true?

# 197 A:

Seemed that he was tired, yes.

# 198 Q:

And in the course of four years, during that time you had seen him tired on other occasions, hadn't you?

# 199 A:

Once or twice I'd seen him.

# 200 Q:

I mean you'd seen him come back from trips where he traveled out of town and come back into town, true?

# 201 MR. LEONARD:

Objection, calls for speculation.

# 202 THE COURT:

Overruled.

# 203 A:

I may have.

# 204 Q:

And during the course of having a conversation with Mr. Simpson in the lobby, what you observed about him is that he appeared to you to be slightly withdrawn, true?

# 205 A:

Yes, he was tired, fatigued, slightly withdrawn.

# 206 Q:

Subdued?

# 207 A:

Yes, somewhat.

# 208 Q:

And in the conversation, the brief conversation that you had with him out in the lobby, you sensed that he was frustrated in that conversation, true?

# 209 A:

No, I don't recall him being frustrated, demonstrating any frustration in that conversation.

# 210 Q:

Okay.

# 211 A:

There was, you know -- again, this was a lobby filled with children running around, it wasn't a one-on-one communication where we were having a heart-to-heart about the specific event or people.

# 212 MR. BREWER:

Move to strike as nonresponsive, Your Honor.

# 213 THE COURT:

Overruled.

# 214 MR. BREWER:

Can I have the deposition.

Want to put up for the defense page 296, lines 17 through 25. Would you put that on the Elmo, please.

# 215 MR. LEONARD:

I'm sorry, pages again.

# 216 MR. BREWER:

Page 295 -- 296, I'm sorry. Lines 17 through 25.

# 217 MR. LEONARD:

Can I -- can you hold off for a second, Steve.

# 218 MR. FOSTER:

Sure.

# 219 MR. LEONARD:

Okay.

# 220 MR. BREWER:

Steve, go ahead.

# 221 (Page 296 from transcript displayed on Elmo.)

# 222 MR. BREWER:

I'm going to start reading here.

Go to the next page. Could you go to the next page, please, I'll give you the lines.

Okay. Right there. Go back up.

Mr. Leonard, lines 5 through 7.

Okay. Go back up so I can start at line 17.

# 223 Q:

(BY MR. BREWER) All right. (Reading.) "Q. And he appeared at that point to be slightly withdrawn, is that a fair statement?"

# 224 MR. BREWER:

Your answer.

# 225 (Reading.)

# 226 MR. BREWER:

There's an objection.

(Reading.) "Q. Frustrated?"

# 227 MR. BREWER:

Your answer.

# 228 (Reading.)

# 229 Q:

(BY MR. BREWER) Were you asked those questions, sir, and did you give that answer?

# 230 A:

Apparently, yes, I did.

# 231 Q:

And that was your answer under oath in the deposition, true?

# 232 A:

Yes.

# 233 Q:

Do you want to change your sworn testimony today, Dr. Fischman?

# 234 MR. LEONARD:

I object. That's argumentative.

# 235 RONALD FISCHMAN:

Would you like to clarify it?

# 236 THE COURT:

Overruled.

# 237 Q:

(BY MR. BREWER) No. Just answer my question.

Did you want to change the sworn testimony that you provided during the course of your deposition today in front of the jury?

# 238 A:

I would just say that --

# 239 Q:

That's yes or no, sir?

# 240 A:

I stated that throughout that time O.J. had a degree of frustration with Nicole, yes.

# 241 Q:

And that includes frustration that you sensed during your course of interacting with him at the recital, true?

# 242 A:

You're trying to make it --

# 243 Q:

True, sir?

# 244 A:

It wasn't. No, it wasn't true. It appeared to me that he may have been frustrated throughout the period.

You're trying to highlight that frustration during that evening, and honestly, that's not what I sensed.

# 245 MR. BREWER:

Move to strike as nonresponsive.

# 246 THE COURT:

Stricken.

Jury to disregard that answer.

# 247 Q:

(BY MR. BREWER) See if you can answer my question, Dr. Fischman.

Do you want to change your sworn testimony that we just read from the deposition transcript that he appeared to be frustrated when you spoke with him at the recital?

Do you want to change that in front of this jury here today?

# 248 MR. LEONARD:

Objection, argumentative.

# 249 A:

I believe --

# 250 THE COURT:

Excuse me.

# 251 A:

I've answered the question.

# 252 THE COURT:

Excuse me. You can answer that yes or no.

# 253 A:

No.

# 254 Q:

(BY MR. BREWER) Now, Dr. Fischman, after you had occasion to speak with Mr. Simpson out in the lobby, you went back in and remained inside the auditorium until about the end of the performance; is that correct?

# 255 A:

Yes.

# 256 Q:

And then you all went outside and you gathered outside and you took a photograph of Mr. Simpson at that time, correct?

# 257 A:

Yes, I did.

# 258 MR. BREWER:

Steve, could we have that -- that's 846?

# 259 MR. FOSTER:

826.

# 260 MR. BREWER:

826.

# 261 (Exhibit 826 displayed on Elmo.)

# 262 Q:

(BY MR. BREWER) On the monitor we've had what's been marked and received into evidence as Exhibit 826.

Is that a photograph that you took that day after the recital?

# 263 A:

Yes, it is.

# 264 Q:

And can you -- can you tell us how you came to take that photograph?

# 265 A:

At the end of the recital we all withdrew to the courtyard. Sydney had been -- I believe she had the last routine or one of the last routines. When they all broke, we, as I said, went to the courtyard and Sydney came to the courtyard. Shortly thereafter, my wife had requested that I take some pictures, and I did.

# 266 Q:

So this photograph, 826, was taken because your wife had requested that you photograph Mr. Simpson and his daughter Sydney, correct?

# 267 A:

I don't recall whether she specifically asked me to take that picture, or just take pictures as best I could.

# 268 Q:

Well, Mr. Simpson didn't ask you to take a photograph?

# 269 A:

That's right. Correct.

# 270 Q:

It was someone else?

# 271 A:

Yes.

# 272 Q:

Your wife or someone else?

# 273 A:

Yes.

# 274 Q:

True?

# 275 A:

Yes.

# 276 Q:

Okay.

And when you took that photograph, that was a posed photograph, that wasn't just a candid shot, true?

# 277 A:

Yes.

# 278 Q:

And by the way, during the course of taking that photograph, or at any time that day, sir, did you ever notice any cuts to any portion of Mr. Simpson's left hand?

# 279 A:

No.

# 280 Q:

Did you ever notice any abrasions to any portion of Mr. Simpson's left hand, either that day or during the course of taking this photograph?

# 281 A:

No.

# 282 Q:

Mr. Simpson is smiling in this photograph, true?

# 283 A:

Yes.

# 284 Q:

That was the first time that you observed him smile that entire day, true?

# 285 A:

I was asked this at the deposition.

I was trying to recall whether he smiled in the lobby, and I don't recall. He may have smiled in the lobby when we met earlier. But certainly that was the biggest smile he had during the day, yes.

# 286 Q:

Sir, you were asked to recall a single time that day prior to this photograph, in your deposition, when Mr. Simpson smiled and you couldn't, correct?

# 287 A:

Correct.

# 288 Q:

And the only time that you could recall Mr. Simpson smiling that entire day was when this photograph, this posed photograph was taken following the recital, true?

# 289 A:

That this was --

# 290 Q:

True?

# 291 A:

He might have smiled. I don't recall.

# 292 Q:

Sir, he might have smiled and he might not.

You can't recall one time -- Tell this jury one time that day he even smiled during this joyous occasion until after -- until that photograph was -- photograph was taken, that posed photograph?

# 293 MR. LEONARD:

Objection.

# 294 THE COURT:

Overruled.

# 295 Q:

True?

# 296 A:

As I've stated --

# 297 Q:

Sir, true or false? True?

# 298 A:

Can you repeat the question, please.

# 299 Q:

You can't recall one time during the entire -- the entire recital, this joyous occasion where your children were performing, where Mr. Simpson smiled, except this posed photograph that was taken after the recital?

# 300 A:

At the present time that's true, yes.

# 301 Q:

Now, after everyone is out and you observed Nicole pull up in her vehicle and all of the kids piled into her car, true?

# 302 A:

I honestly don't recall seeing that happen. I believe it did occur though, yes.

# 303 Q:

And the Browns were also getting themselves together and they were all going to leave, true?

# 304 A:

Yes.

# 305 Q:

And Mr. Simpson came out at that time, while everyone was getting themselves together in order to leave the performance, and go their various ways, true?

# 306 A:

Yes.

# 307 Q:

And, in fact, you were going to have dinner that evening with your wife and your family, correct?

# 308 A:

Correct.

# 309 Q:

And at that time -- in fact, why don't we just show the videotape. At this time we're going to show you what's Exhibit 825.

# 310 (The instrument herein described as a video of the parking area outside of the Paul Revere Middle School was marked for identification as Plaintiffs' Exhibit No. 825.)

# 311 (Exhibit 825 displayed on Elmo.)

# 312 Q:

(BY MR. BREWER) Is that you, Dr. Fischman?

# 313 A:

Yes, it is.

# 314 (Indicating to video.)

# 315 Q:

And is that Lou Brown?

# 316 A:

Yes.

# 317 Q:

And O.J. Simpson?

# 318 A:

Yes.

# 319 Q:

That's his son he just picked up?

# 320 A:

Yes, that was Justin.

# 321 Q:

That's Judy Brown?

# 322 A:

Yes.

# 323 MR. BREWER:

Okay. Stop. Stop.

# 324 (Indicating to video.)

# 325 Q:

(BY MR. BREWER) Dr. Fischman, you see there where Mr. Simpson was smiling and laughing?

# 326 A:

Yes.

# 327 Q:

You shared a joke with him at that time, didn't you, you shared a laugh together, you and Mr. Simpson, true?

# 328 A:

I don't think it was a joke.

# 329 Q:

In fact, you told Mr. Simpson --

# 330 MR. LEONARD:

Objection, hearsay.

# 331 THE COURT:

Overruled.

# 332 Q:

You told Mr. Simpson that you were going to dinner that evening with your wife and your family, your ex-wife, true?

# 333 A:

That's correct.

# 334 Q:

And you had had discussions on previous occasions with Mr. Simpson about your own marital difficulties that you were having with your ex-wife; is that true?

# 335 A:

Yes.

# 336 Q:

And when Mr. Simpson walked out of the recital, he asked you about going to dinner with him; is that correct?

# 337 A:

Yes.

# 338 Q:

And when he asked you that, that's when you told him what your plans were for the evening, that you were going to go to dinner with your ex-wife, true?

# 339 A:

Yes.

# 340 Q:

And he said something like good luck; is that correct?

# 341 A:

I don't recall exactly what he said.

# 342 Q:

It was in the context of that conversation that Mr. Simpson is laughing and smiling on that video, true?

# 343 A:

May have been.

# 344 Q:

True?

# 345 A:

It may have been, yes.

# 346 Q:

That's what you testified to in your deposition, Dr. Fischman, didn't you?

# 347 A:

If it's --

# 348 MR. LEONARD:

I object, it's argument.

# 349 A:

I don't remember the exact words.

I'll be happy to review it if you like.

# 350 MR. PETROCELLI:

No speaking objections, please.

# 351 MR. LEONARD:

Yes, Judge.

# 352 Q:

(BY MR. BREWER) Dr. Fischman, Nicole left the recital with her family, correct?

# 353 A:

Yes.

# 354 Q:

And when she left the recital, that was the last time that you ever saw her alive before her murder -- her murder only hours after the recital; is that correct?

# 355 A:

That's correct.

# 356 Q:

And Mr. Simpson left the recital, correct?

# 357 A:

I believe so.

# 358 Q:

And the last time that you saw Mr. Simpson before Nicole was murdered, hours after that recital, was at that recital, true?

# 359 A:

Yes, that's correct.

# 360 Q:

You didn't see him or speak with him after the recital?

# 361 A:

No, I did not.

# 362 Q:

And from everything that you were able to observe about Mr. Simpson, based upon your observations and your interactions with him, concerning his demeanor and appearance, in all the years that you've known him he never appeared the way he did on June 12, 1994, at that recital, did he, sir?

# 363 A:

It's a difficult question to answer.

# 364 Q:

Did he, sir?

# 365 A:

He was very subdued and quiet.

# 366 Q:

Sir.

# 367 A:

That was not his normal state -- normal state.

# 368 Q:

In all the years that you knew O.J. Simpson, he never appeared the way he appeared at that recital to you, true?

KEY QUOTE

# 369 A:

That's true.

# 370 MR. BREWER:

Nothing further.

Temperature

tense

Key Quotes (5)

Dr. Ronald Fischman

She was extraordinarily angry.

Describing Nicole's reaction to the IRS letter from Simpson — the strongest characterization in his testimony, establishing Nicole's emotional state in the final week of her life.

Dr. Ronald Fischman

In all the years that you knew O.J. Simpson, he never appeared the way he appeared at that recital to you, true? ... That's true.

Closing testimony establishing Simpson's uniquely abnormal demeanor on June 12, 1994 — the last time Fischman saw either Simpson or Nicole alive.

Dr. Ronald Fischman

You're trying to highlight that frustration during that evening, and honestly, that's not what I sensed.

Fischman pushes back against Brewer's framing — the answer is stricken by the judge, illustrating the witness's resistance and the court's rulings against his elaborations.

Daniel Petrocelli

Because Nicole disagreed with you, she said how could he do this to the mother of his children, she was forced to leave her home with her children. That's why.

Petrocelli's sidebar argument connecting the IRS letter to Simpson's motive, revealing the plaintiff's theory of escalating financial and emotional control.

Dan Leonard

He just wants to smear my guy up with that statement. That's all this is for, that's all it's for. It has no probative value.

Defense's blunt characterization of plaintiff's strategy during the heated bench conference over the IRS letter — unusually raw language for a sidebar.

Evidence (4)

Plaintiffs' 826

Photograph taken by Fischman of O.J. Simpson and daughter Sydney after the June 12 dance recital

Introduced and discussed — used to show Simpson's only visible smile that day was in a posed photo

Plaintiffs' 825

Video footage of the parking area outside Paul Revere Middle School after the recital

Played in court — shows Simpson smiling and laughing when Fischman told him about going to dinner with his ex-wife

Informal

IRS letter from O.J. Simpson to Nicole Brown Simpson requesting she not list Rockingham as her primary residence

Referenced through Fischman's account of Nicole's reaction — not formally introduced as exhibit

Informal

Fischman's deposition transcript

Displayed on Elmo multiple times to refresh recollection and impeach — pages 69, 107, 295-297

Notable Exchanges (4)

Daniel Petrocelli•Dan Leonard•Hiroshi Fujisaki•Michael Brewer

Extended bench conference over admissibility of Nicole's statements about the IRS letter. Leonard calls it pure character smear with no motive relevance; Petrocelli argues it explains Nicole's coldness toward Simpson in her final week and thus his motive. Judge allows it as Nicole's state of mind.

heated

Michael Brewer•Dr. Ronald Fischman•Hiroshi Fujisaki

Brewer repeatedly presses Fischman — 'Do you want to change your sworn testimony in front of this jury?' — after Fischman tries to qualify his deposition answer about Simpson appearing frustrated at the recital. Judge overrules Leonard's argumentative objection and orders a yes/no answer; Fischman says no.

heated

Michael Brewer•Dr. Ronald Fischman

Brewer walks Fischman through the video showing Simpson smiling and laughing, establishing that the smile was prompted by a joke about Fischman going to dinner with his ex-wife — contextualizing it as ordinary banter, not evidence of a good mood.

strategic

Michael Brewer•Dr. Ronald Fischman

Fischman attempts to explain his answer about Simpson's frustration ('You're trying to highlight that frustration during that evening, and honestly, that's not what I sensed') — the judge strikes the answer and instructs the jury to disregard.

revealing

Light Moments (2)

Daniel Petrocelli / Dan Leonard

During the sidebar, Petrocelli says 'Excuse me, you're sitting on my tie' — Leonard responds 'I wasn't sitting on anything.'

O.J. Simpson

The laugh Simpson shared with Fischman on the parking lot video turns out to be Simpson saying 'good luck' about Fischman's dinner with his ex-wife — a joke about marital difficulties they had previously discussed.

Credibility Attacks (1)

⚔ Dr. Ronald Fischman

Prior inconsistent statement / deposition impeachment

Brewer repeatedly displays Fischman's deposition on the Elmo when Fischman hedges or denies specific statements, including on Simpson feeling 'ignored,' 'frustrated,' and on Nicole's specific words about the IRS letter. Fischman generally confirms the deposition language after being shown it, but resists the inferences Brewer draws.

Witness Demeanor

Frequently qualifies answers and resists Brewer's true/false framing

Repeatedly has answers stricken for being nonresponsive

Visibly reluctant to fully confirm deposition statements that reflect badly on Simpson

Ultimately confirms under pressure without overt hostility — a friendly witness being used against his preferred narrative

Objections

13 objections (1 sustained, 10 overruled)

Proceeding 8455 • 370 utterances • Defense witness

Civil Trial

Department 103