No, it's a live witness. It's a live witness supported by corroborated -- corroborated by documents, notes that she made at the time. It's primarily live testimony; the documents are just corroboration.
To demonstrate the victim, Nicole Brown Simpson's, state of mind. This is five days --
As to her fear of the defendant and the state of her relationship with the defendant, which is really the heart of the case. It goes to the motive of defendant to commit these crimes.
Our theory of the case, Your Honor, as you probably know, is that the crimes -- the primary motivation for the crime was retaliation, not rejection, from Ms. Brown's rejection of Mr. Simpson, the termination of the relationship and the rejection, specifically on June 12, as well, after the recital. And her state of mind about the relationship, the state of the relationship, her extreme fear of the defendant, as demonstrated by the phone call with Ms. Ney.
It is probative of the fact that she thought he was the one who terminated the relationship and that she would not want to be with him and would want to stay as far away from him as possible.
Very much goes to her rejection of him. Mr. Simpson's position is directedly [sic] to the contrary, that he broke up with her, he terminated the relationship, he was happily on another relationship and didn't care about her anymore, had nothing to do with her.
I'm sorry. He said that he still loved her, that he was on to another relationship, and that he had put that behind him and was on with his life. And this impeaches that clearly, and really goes to the heart of the motive of the case, as to what's going on in the relationship in these few days before the murders.
As the Court in Zack said, antagonism, hostility, enmity in the relationship is highly probative and always relevant. That's exactly what this goes to show.
Well, just a couple things, Your Honor.
I don't believe that the state of mind of Nicole Brown Simpson is an issue, nor has it ever been put in issue. It's relevant to the issues in this case, and to the case the Supreme Court said in People versus Ireland.
But this is the ultimate, to me, bootstrap argument. They want to attempt, on these hearsay documents, to prove the state of mind of O.J. Simpson by asserting the state of mind of Nicole Brown Simpson on documents that I believe, that if the Court just looks at them on their face, may have some problem relative to their trustworthiness.
First of all, the date has been crossed out.
Second of all, the -- the second page of the sheet is not filled out, and the third page is a blank page that this woman says she wrote upon.
There are contradictions in the first page and the third page of the sheet, but nonetheless, Nicole Brown Simpson is never identified as the caller.
They want this Court to extrapolate that there's enough indication in these documents that it was her, and therefore, that this evidence is admissible to prove her state of mind, so we can prove the state of mind of O.J. Simpson.
I don't think the law allows that, and that's why we have Evidence Code Section 1200 et seq, and they've been writing -- attempted to ride the Zack case, which doesn't stand for the proposition they used it for. They've attempted to assert that the state of mind was put in evidence by us, when, of course, it was put in evidence by them.
And they attempt to use, in my view, Your Honor, a bootstrap's approach, saying -- for example, Mr. Kelly, during questioning, testified that Nicole was not afraid of him in June of 1994, so they asked a question, get an answer, and then attempt to say now it's an issue so we can bootstrap in with the -- This hearsay documents and testimony of Nancy Ney. If you have any questions relative to this, I'd be happy to -- to go into detail on -- on where the documents are, in my view -- in my view, are untrustworthy.
Putting aside Mr. Simpson's testimony in response to Mr. Kelly's question, which was directly relevant here, he said she was not afraid of him in 1994.
Mr. Baker, in his opening -- he was not forced to say anything -- said these words:
That on May 22, 1994, which is a crucial date in our -- our scenario, that's the day that she terminated the relationship, he said, quote, 'she was hardly afraid of O.J. Simpson.' He said that on May 22. That's less than two weeks before this conversation where she expresses extreme fear of this man.
If this testimony is not allowed in, Mr. Simpson is going to be free to get up there, as Mr. Baker has promised he will, and talk about what a rosey relationship this was; it was a mutual ending of the relationship; there were no problems; there was no fear; there was no hostility; there was no enmity, none of that.
It's not true. And this evidence is highly probative of that.
Ms. Brown Simpson has been silenced. She cannot come here and rebut that on the stand. This is crucial evidence to dispute and rebut the testimony Mr. Simpson is going to give.
Your Honor, only briefly.
I have to respond, in opening statement to what Mr. Kelly said, and the argument that he made, and that's what we were doing, discussing May 22. The fact that Mr. Gelblum wants to assert how relevant it is, does not get around the hearsay rule and does not get around the fact that she is never identified and does not get around the fact that her state of mind is not an issue in this case.
And you can't prove Simpson's state of mind through the state of mind of the decedent.
Well, the Court has reread People versus Ortiz, 38 Cal.Ap. 4th 377, and I'm reminded by Mr. Gelblum about the Zack case.
I think on that basis, on the basis on which the plaintiff has represented that he is offering the testimony, the Court finds that -- that there is an exception, in view of the Evidence Code, for those purposes, and the objection is overruled.
Let's bring the jury in.
Ms. Brown Simpson has been silenced. She cannot come here and rebut that on the stand. This is crucial evidence to dispute and rebut the testimony Mr. Simpson is going to give.
He said, quote, 'she was hardly afraid of O.J. Simpson.' He said that on May 22. That's less than two weeks before this conversation where she expresses extreme fear of this man.
This is the ultimate, to me, bootstrap argument. They want to attempt, on these hearsay documents, to prove the state of mind of O.J. Simpson by asserting the state of mind of Nicole Brown Simpson on documents that... may have some problem relative to their trustworthiness.
You can't prove Simpson's state of mind through the state of mind of the decedent.