📄 Sidebar: Nancy Ney jury instruction — Thursday, December 5, 1996
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▲ Day 26 of 57

Sidebar: Nancy Ney jury instruction

Date: Thursday, December 5, 1996 • Utterances: 9
A bench conference about a special jury instruction regarding testimony from Nancy Ney. Baker objected to paragraphs 2, 3, and the first sentence of paragraph 4 of the instruction, arguing they put the court's imprimatur on the plaintiffs' case. Judge Fujisaki overruled the objections, explaining the instruction was admitted solely on the basis of Nicole Brown Simpson's state of mind and that it was proper to counter defense implications about reconciliation.
1 (Pause in proceedings.)
2 (The jurors resumed their respective seats.)
3 (The following proceedings were held at the bench, with the reporter.)
4 MR. BAKER:

Your Honor, as I indicated before, I object to any special instruction. I object to paragraph 2 in its entirety, because I believe that that paragraph (indicating to document handed to them from the Court) is essentially putting the Court imprimatur on the plaintiffs' argument.

I object to paragraph 3 in its entirety for the same reason.

And I object to the first sentence of paragraph 4.

I object to the entire instruction, but those, I think, argue the case for the plaintiffs. And I think they're inappropriate to come from the bench.

5 MR. PETROCELLI:

I would object to the deletions suggested by Mr. Baker.

I think this balances it out and explains to the jury the purpose for which the evidence was offered. Otherwise, it looks like it's a rejection of the entire testimony.

6 THE COURT:

Well, the Court heard argument yesterday for the admission of that evidence. That admission was received solely on the basis of state of mind of the decedent.

The Court reviewed the Ortiz case and was satisfied that if they allowed that in a criminal case, I think it's allowable in a civil case.

I'm satisfied that this instruction informs the jury of the limited purpose for which this evidence is being received, and that the Court has no belief as to the efficacy of the testimony.

That's a matter strictly for the jury, so I'll give it.

7 MR. BAKER:

Judge, one other point.

What conduct -- what possible conduct of Nicole Brown Simpson could be relevant in this case?

8 THE COURT:

The conduct with regards to her treatment, allegedly, of Mr. Simpson and at the recital and after the recital, and not inviting him to dinner, et cetera, to show her state of mind was not one of seeking reconciliation; that the defendant -- I believe defense evidence, defense examination of Mr. Simpson, tended to imply that there was -- that it was otherwise. And I believe that this evidence may be received when proffered by the plaintiff to counter that.

9 (Pause in proceedings.)

Temperature

procedural

Key Quotes (3)

Robert Baker
I object to any special instruction. I object to paragraph 2 in its entirety, because I believe that that paragraph is essentially putting the Court imprimatur on the plaintiffs' argument.
Baker argues the limiting instruction itself functions as advocacy for the plaintiff rather than neutral guidance.
Hiroshi Fujisaki
That admission was received solely on the basis of state of mind of the decedent.
The judge clarifies the narrow evidentiary basis for the Ney testimony — Nicole's state of mind, not the truth of what she said.
Hiroshi Fujisaki
I believe that this evidence may be received when proffered by the plaintiff to counter that.
Fujisaki explains the rebuttal purpose: Nicole's conduct at the recital and afterward counters OJ's implied claim she was seeking reconciliation.

Evidence (2)

Informal
Nancy Ney testimony about Nicole Brown Simpson's conduct at the recital and afterward, including not inviting OJ to dinner
discussed as basis for limiting jury instruction
Informal
Ortiz case (cited as precedent for admissibility of state-of-mind evidence in civil context)
discussed

Notable Exchanges (1)

Robert BakerHiroshi Fujisaki
Baker challenged the relevance of Nicole's conduct entirely; Fujisaki explained in detail that her post-recital behavior was relevant to rebut OJ's implied claim of reconciliation
strategic

Objections

2 objections (0 sustained, 2 overruled)
Proceeding 8494 • 9 utterances
Civil Trial
Department 103
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📂 DEC 5, 1996 📄 Sidebar: Nancy Ney jury instru
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