Sidebar: Merrill testimony objections

📄 Sidebar: Merrill testimony objections — Thursday, December 5, 1996

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C:\DEPT103\CIVIL\1996\DEC\5\SIDEBAR-MERRILL-TESTIMONY-OBJE.DOC

TRIAL

▲ Day 26 of 57

◀ Direct examination of Jim Merrill (part 1) Direct examination of Jim Merrill (part 2) ▶

Date: Thursday, December 5, 1996 • Utterances: 60

Attorneys Petrocelli and Leonard worked through remaining deposition designations from a Merrill deposition at the bench, resolving objections before reading testimony to the jury. The main dispute centered on whether witness Merrill's surprise reaction to a phone call from Simpson — made the day after the murders, purportedly to apologize and ask about golf clubs — was admissible. The judge sustained defense objections to the witness's state of mind but allowed the substance of the phone call.

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

# 2 MR. PETROCELLI:

This is what I have left, Your Honor, three more pages.

We're at line 23.

# 3 MR. LEONARD:

We're on page 23 -- I mean line 23 at page 91. This is just the question he asked.

# 4 MR. PETROCELLI:

"Did you tell Mr. Johnson?"

Answer: "I may have." I'm skipping to line 10.

# 5 MR. LEONARD:

I'd move to strike. Speculative. I may have, you may have, I don't remember, I mean it's --

# 6 THE COURT:

It's stricken.

# 7 MR. LEONARD:

Okay.

Then where are you going?

# 8 MR. PETROCELLI:

Line 10.

# 9 THE COURT:

You have anymore objections?

# 10 MR. LEONARD:

I don't know. I don't know what he's doing.

# 11 MR. PETROCELLI:

Read along. You're supposed to object as we read along.

# 12 MR. LEONARD:

All right; that's what we'll do. I thought we were designating.

# 13 THE COURT:

Let's save us a trip, if you've got some more objections.

# 14 MR. PETROCELLI:

Read it fastly. It's all -- it's what you --

# 15 MR. LEONARD:

"Fastly" is not a word, but go ahead.

KEY QUOTE

# 16 THE COURT:

You have an eavesdropper behind you.

MR. P. BAKER: I want to have them all get along.

# 17 MR. PETROCELLI:

Read mine. It's quick. Read where I've highlighted.

# 18 MR. LEONARD:

In yellow?

# 19 MR. PETROCELLI:

Yeah, yellow and blue.

We're almost to the end. We're doing the phone call the next day. No. Now go right here.

We did that already.

# 20 MR. LEONARD:

We did.

# 21 MR. PETROCELLI:

It goes --

# 22 MR. LEONARD:

Right. I knew that. (Indicating to page of transcript.)

# 23 MR. PETROCELLI:

Then we go to the phone call, and that's it.

# 24 MR. LEONARD:

Let me see. Let me look at it now.

# 25 MR. PETROCELLI:

Yeah, read it.

# 26 MR. LEONARD:

Not this.

# 27 MR. PETROCELLI:

Wherever it's highlighted.

MR. P. BAKER: Why do you -- did you change colors? I'm joking.

# 28 MR. PETROCELLI:

You know me; I'm super-organized.

# 29 MR. LEONARD:

Okay. That's it?

# 30 MR. PETROCELLI:

No. That's the conversation.

# 31 MR. LEONARD:

All of this with Simpson, starting here?

# 32 MR. PETROCELLI:

Mr. Leonard ....

# 33 MR. LEONARD:

Okay. (Counsel reads transcript.)

# 34 MR. LEONARD:

Okay. I do have an objection.

This is where you're starting?

# 35 MR. PETROCELLI:

Let me tell you what this Exhibit --

THE COURT REPORTER: Page and line?

# 36 MR. PETROCELLI:

This is page 103.

The next day on the 14th --

# 37 THE COURT:

Line 8?

# 38 MR. PETROCELLI:

-- after Simpson returned from Chicago on the 13th, on the next day, he called Kilduff and he called Merrill up, purportedly to apologize for having been brusque the day before. And then the subject turned to golf clubs, getting them back. And I'm eliciting that conversation.

# 39 MR. LEONARD:

Okay. But why don't you let me object first, so we don't waste time. I obviously don't have an objection to the general -- what the general subject is. But his reaction and his state of mind, I have an objection to Kilduff -- I mean Merrill -- where he says he was surprised. I have an objection to that.

# 40 MR. PETROCELLI:

It goes to the credibility of Mr. Simpson's explanation that he was calling to apologize. This was a surprise that he received this phone call.

# 41 THE COURT:

Sustain the objection.

# 42 MR. LEONARD:

Thank you.

# 43 THE COURT:

His state of mind.

# 44 MR. PETROCELLI:

It's not offered for a state of mind; it's offered to show that it was -- what his perception of the conversation was.

# 45 THE COURT:

His perception of the conversation is irrelevant.

# 46 MR. PETROCELLI:

Pretty unusual thing, Your Honor. The guy didn't --

# 47 MR. LEONARD:

Argue it.

# 48 MR. PETROCELLI:

I'm entitled to elicit that, that the person on the phone was really surprised to get such a call from someone he didn't know, never met before, other than the day before. It's not like it's a long-time relationship. They didn't know each other, and the guy's calling to apologize.

That's the whole point of it, of the conversation. It's pretextual [sic] with what my argument will be, that it was designed to find out about the golf clubs which he was fervently concerned about. That's the whole point of what I have been reading to get to this point. Now that I'm getting to the punch line, he wants to sustain the objection.

# 49 MR. LEONARD:

That's a great argument for the jury, but it's not --

KEY QUOTE

# 50 MR. PETROCELLI:

I'm entitled to get the reaction. It's a -- it's the reaction of the person who's having the direct phone call.

# 51 MR. LEONARD:

So what? It's not relevant and it's argumentative. It's an argument for the jury.

# 52 MR. PETROCELLI:

No, it's not.

# 53 MR. LEONARD:

Sure it is.

# 54 MR. PETROCELLI:

I can argue the fact. I have to elicit his reaction. It's only a couple questions.

# 55 MR. LEONARD:

No. I find that to be, like I said before, and as I said here, it's argumentative and it's irrelevant. That's the fact that he makes the phone call.

# 56 MR. PETROCELLI:

SHHH. Keep your voice down.

# 57 MR. LEONARD:

The fact he makes the phone call, the substance of the phone call -- I don't like it, but it's relevant.

# 58 THE COURT:

Sustain the objection.

# 59 MR. LEONARD:

Thank you.

# 60 THE COURT:

You may put in that portion where he called and apologized, but the witness's reaction of surprise, I think, is irrelevant.

KEY QUOTE

Temperature

tense

Key Quotes (4)

Daniel Petrocelli

It's pretextual with what my argument will be, that it was designed to find out about the golf clubs which he was fervently concerned about. That's the whole point of what I have been reading to get to this point.

Reveals plaintiff's theory that Simpson's apology call to Merrill on June 14 was a pretext to recover his golf clubs, suggesting consciousness of guilt.

Dan Leonard

That's a great argument for the jury, but it's not --

Defense correctly identifies that Petrocelli's argument about the call's pretextual nature is closing argument, not admissible witness reaction testimony.

Hiroshi Fujisaki

You may put in that portion where he called and apologized, but the witness's reaction of surprise, I think, is irrelevant.

The ruling allowing the call's substance but excluding the surprise reaction — a split that limits but does not eliminate the evidence's impact.

Dan Leonard

"Fastly" is not a word, but go ahead.

Rare moment of levity during an otherwise technical bench conference.

Evidence (2)

Informal

Merrill deposition transcript, pages 91 and 103

Counsel reviewing highlighted designations for admission

Informal

Phone call from Simpson to Merrill on June 14, the day after Simpson returned from Chicago, purportedly to apologize for being brusque and to discuss golf clubs

Discussed; substance admitted, witness reaction excluded

Notable Exchanges (2)

Daniel Petrocelli•Dan Leonard

Petrocelli argued that Merrill's surprise at receiving Simpson's unexpected call was admissible to undercut the apology pretext and show Simpson was really calling about golf clubs. Leonard countered it was irrelevant and argumentative. The judge agreed with Leonard twice.

heated

Daniel Petrocelli•Dan Leonard

Confusion over the designation process — Leonard thought they were pre-designating, Petrocelli expected real-time objections as they read. Brief procedural friction before getting on the same page.

procedural

Light Moments (4)

Dan Leonard

'Fastly' is not a word, but go ahead.

P. Baker

P. Baker interjecting 'I want to have them all get along' while listening in at the bench.

P. Baker

P. Baker joking 'Why do you -- did you change colors? I'm joking.' about Petrocelli's highlighted transcript pages.

Hiroshi Fujisaki

Judge Fujisaki noting 'You have an eavesdropper behind you' when P. Baker approached the bench.

Credibility Attacks (1)

⚔ O.J. Simpson

circumstantial inference from conduct

Petrocelli argued Simpson's June 14 call to Merrill was pretextual — not a genuine apology but an attempt to locate his golf clubs, suggesting he knew he would not be returning to his home normally.

Objections

3 objections (3 sustained, 0 overruled)

Proceeding 8501 • 60 utterances

Civil Trial

Department 103