Motion: audio tape evidence

📄 Motion: audio tape evidence — Friday, November 15, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\15\MOTION-AUDIO-TAPE-EVIDENCE.DOC

TRIAL

▲ Day 16 of 57

Date: Friday, November 15, 1996 • Utterances: 36

Plaintiffs moved to compel production of an audio tape allegedly recorded by O.J. Simpson, which surfaced on national television. Judge Fujisaki denied the motion outright because plaintiffs lacked a legally sufficient declaration establishing the tape was in Simpson's possession, relying instead on inference and a journalist's televised excerpt.

# 1 THE COURT:

There's a motion by Plaintiff Goldman with regards to an audio tape.

# 2 MR. GELBLUM:

Yes, Your Honor.

We asked for this document February 15, and we served our document demand, the very first document served in the case.

The response was that everything he had, had been turned over to the LAPD or the DA was equally available to us. It turns out not to have been true. This other tape we never heard of until it was aired on national television, and we'd like it.

# 3 MR. BAKER:

I have no such tape; my client has no such tape. And the assertion that we have such tape and it was withheld is, of course, without assertion at all.

# 4 THE COURT:

It would appear from the moving papers that there is no declaration indicating that the defendant has any such tape or identifies the tape being in his possession.

# 5 MR. GELBLUM:

The defendant recorded the tape.

# 6 THE COURT:

Excuse me. There's not even a declaration in support of anything in your moving papers.

# 7 MR. GELBLUM:

I'll be happy to submit a declaration, if that's what it takes.

There's no dispute the defendant recorded this audio --

# 8 THE COURT:

There has to be a declaration that is a legally sufficient declaration; that is to say, it cannot simply be on the basis of hearsay, or you heard somebody say the tape was played on the radio or television or whatever. That's all you have here.

# 9 MR. GELBLUM:

Your Honor, I have --

# 10 THE COURT:

You say Schiller played some tape. What tape? That doesn't identify the tape.

Why don't you ask Mr. Schiller?

# 11 MR. GELBLUM:

We did ask Mr. Schiller. He asserted the reporter shield.

# 12 THE COURT:

You don't have that in your declaration.

# 13 MR. GELBLUM:

I don't know if we need to ask Mr. Schiller, if Mr. Simpson has the tape --

# 14 THE COURT:

There's nothing to indicate that he does, because --

# 15 MR. BAKER:

That is absolutely false.

# 16 MR. GELBLUM:

-- that he recorded.

# 17 MR. BAKER:

That is absolutely false. He does not have any such tape.

To make that assertion in open court, when you have no facts, is absolute misconduct.

# 18 MR. GELBLUM:

We have the facts. He recorded the tape; it was played; he knows it was played. He's not denying that he made the tape.

And I think it's suspicious, at best, to hear that he apparently doesn't have one, doesn't have a copy. Mr. Schiller has a copy.

# 19 MR. BAKER:

That's reckless disregard of the truth, to say anything like that.

# 20 THE COURT:

Based on what you've got in your moving papers, I don't find any sufficient facts on which I can base any order.

# 21 MR. GELBLUM:

I'll bring the tape in, the portion of the tape that was played on national TV; you can play that in court and listen to the defendant's voice.

# 22 THE COURT:

Why don't you use that as secondary evidence?

# 23 MR. GELBLUM:

It's an excerpt. It's a very small excerpt that was played, Your Honor.

# 24 THE COURT:

Well, you haven't satisfied me that the defendant has the tape. You don't have any declaration to support that conclusion, other than your say-so, which is not very sufficient.

# 25 MR. GELBLUM:

It's --

# 26 MR. PETROCELLI:

You know --

# 27 MR. GELBLUM:

You're right, Your Honor. And obviously, it's impossible for me to know what the defendant actually has in his possession.

I'm working on a reasonable inference here, Your Honor, that the defendant recorded it. Mr. Schiller has a copy of it, and that's -- and if he wants to say that he, in fact, doesn't have it under oath and everything --

# 28 THE COURT:

How do I --

What is there? How can I assume that you know that Schiller didn't tape it and has the original? How? How do I know that, you know, that that is not the fact?

# 29 MR. GELBLUM:

We'll submit additional material.

# 30 MR. PETROCELLI:

You're going to subpoena Schiller.

# 31 MR. GELBLUM:

We did subpoena Schiller.

We did subpoena Schiller. He asserted the reporter shield.

# 32 THE COURT:

I don't care what you do. I'm telling you, based on what you've given me, that the motion is insufficient on its face.

KEY QUOTE

# 33 MR. GELBLUM:

We'll submit additional material.

# 34 THE COURT:

Motion is denied on its face.

# 35 MR. PETROCELLI:

We're going to bring in Mr. Schiller.

# 36 THE COURT:

I don't care what you do.

Bring in the jury.

Temperature

tense

Key Quotes (4)

Peter Gelblum

This other tape we never heard of until it was aired on national television, and we'd like it.

Establishes the basis for the motion — surprise discovery of the tape via broadcast media rather than discovery.

Robert Baker

To make that assertion in open court, when you have no facts, is absolute misconduct.

Baker's aggressive pushback characterizing plaintiffs' argument as misconduct, escalating the courtroom tension.

Hiroshi Fujisaki

I don't care what you do. I'm telling you, based on what you've given me, that the motion is insufficient on its face.

Blunt dismissal; Fujisaki's impatience with the evidentiary gap is unambiguous.

Peter Gelblum

I'm working on a reasonable inference here, Your Honor, that the defendant recorded it.

Plaintiffs concede they cannot prove possession — a fatal admission that dooms the motion.

Evidence (2)

Informal

Audio tape allegedly recorded by O.J. Simpson, an excerpt of which was played on national television

discussed, sought via motion to compel

Informal

Copy of audio tape held by journalist Lawrence Schiller

referenced; Schiller asserted reporter's shield when subpoenaed

Notable Exchanges (2)

Peter Gelblum•Robert Baker

Baker flatly denied the tape's existence in his client's possession and accused Gelblum of misconduct for asserting otherwise without factual support; Gelblum countered that Simpson's failure to deny making the tape was itself suspicious.

heated

Peter Gelblum•Hiroshi Fujisaki

Fujisaki repeatedly pressed Gelblum on the absence of a declaration, walking him through each evidentiary gap while Gelblum offered to submit additional material — ultimately too late.

procedural/pointed

Credibility Attacks (1)

⚔ Peter Gelblum

argument conduct challenge

Baker accused Gelblum of 'reckless disregard of the truth' and 'absolute misconduct' for asserting Simpson possessed the tape without factual foundation.

Objections

None recorded

Proceeding 8280 • 36 utterances

Civil Trial

Department 103