All right. At this time, the Court had a previous set of evidentiary motions that the Court took under submission, that the Court is now ready to issue its ruling on.

The Court initially will address Plaintiff Goldman's motion to allow testimony of Dr. Deitz and Dr. Dutton regarding motive and spousal homicide and defendants' motion in limine thereon.

Plaintiff seeks to admit Dr. Dietz' testimony of his opinion of the general motive of the person who killed Nicole Brown Simpson and Ron Goldman and the killer's behavior at the crime scene, based upon an analysis of the crime scene and the autopsies, and the motive that the defendant had for committing the murders based on various factors, primarily including the history of the relationship between defendant and Nicole Brown Simpson and defendant's past behavior.

Plaintiff seeks to admit Dr. Dutton's testimony of his opinion that spousal homicides have certain characteristics for the purpose of supporting Plaintiff's contention that the evidence establishes the existence of these characteristics concerning defendant and Nicole Brown Simpson (sic), and this was a spousal homicide committed by defendant.

The testimony of both Dr. Dietz and Dr. Dutton is offered to establish a profile of spousal homicide, into which Plaintiff endeavors to establish the identity of the killer by showing that defendant fits the profile.

This implies that there is a science of spousal homicide which can establish that every homicide of a spouse by a spouse contained certain characteristics, that a spouse who had these characteristics would necessarily commit spousal homicide, that there could not be spousal homicide without these characteristics, that a spouse had these characteristics; i.e., a spousal relationship, spousal abuse that was physical and/or verbal, estrangement, jealousy, stalking, was necessarily the killer of a former spouse who died a violent death.

This Court is not satisfied that opinion testimony of this nature rises to the level of acceptability in the legal or scientific community.

As discussed in People versus Bowker, 203 Cal.App.3d, 385, it is one thing to say that in child sexual abuse syndrome cases, a child often exhibits a certain characteristic; but it is quite another to conclude that where a child meets certain criteria, it can be predicted with reasonable certainty -- a reasonable degree of certainty that the child has been abused.

The same analysis applies in the present case. Say that spousal homicide often exhibits certain characteristics, it is quite another matter to say that this particular homicide was a spousal homicide and/or that this defendant perpetrated it.

Such testimonial opinion by experts inappropriately supplants the function of jurors of evaluating the evidence by giving the experts' imprimatur and scientific approval upon the Plaintiff's theory of the case.

Also as noted in Bowker, quote, "There may be more danger where the application is left to the jury because the jurors' education and training may not have sensitized them to the dangers of drawing predictive conclusions." Unquote.

Where the matter at issue is the identity of the killer of two people, and the evidence relied upon by the proponents of the expert testimony is not beyond common experience, to-wit, a relationship of former spouses, alleged abuse by one spouse of the other, jealousy, stalking, the manner of killings, the jurors are clearly capable of evaluating the evidence without the need of an expert to guide their conclusions.

The motions in limine to preclude the testimony of Dr. Dietz and Dr. Dutton are granted and they are excluded for the foregoing reasons.

The Court also feels that the same analysis as I discussed in Bowker applies in the application of Evidence Code Section 352; that is, the prejudicial aspect of allowing such testimony from experts is prejudicial and its probative value does not overcome that prejudicial aspect of it.

The other issue that the Court now addresses is Plaintiff Goldman's motion to allow --

Oops.

The other issue is Plaintiff Goldman's motion to preclude prior testimony of Fuhrman tendered by Defendant under Evidence Code Section 1292 and motion to preclude reference to Fuhrman's perjury conviction.

Plaintiff gave Defendant sufficient notice of his objection to the use of Fuhrman's prior testimony under Evidence Code Section 1292 and the conviction of perjury prior to opening statement. And the Court had reserved ruling on this issue pending further briefing.

The fact that this issue was not raised prior to the deadline for motions in limine, it is excused by this Court, finding it excusable, in view of the unsettled status of Fuhrman's potential availability as a witness at the time because of the then pending criminal proceedings and plea of nolo contendere therein, and that the Defendant is not presently prejudiced because Defendant had ample time to prepare, since October 21, 1996, when this present motion was filed, it now being November 18.

Plaintiff contends that Fuhrman's prior testimony is not admissible under Evidence Code Section 1292 because the People did not have the right to cross-examine Fuhrman with an interest in motive similar to Plaintiff, that the People called Fuhrman as their witness, conducted direct examination and did not have the opportunity to cross-examine him, and defended, rather than challenged, his testimony.

The precise language of Section 1292 of the Evidence Code states, quote:

Cross-Examination:

Section 1291 of the Evidence Code allows former testimony to be used against the party that offered it in the prior proceeding, or that party's successor in interest, or the admission of former testimony against a party who had the opportunity to cross-examine with an interest in motive similar to that in the prior proceeding.

The legislative history notes the distinct languages of both Sections 1291 and 1292, but the legislature, in Section 1292, made no provision for admission of such prior testimony offered by the party in the prior proceeding, against another party in a subsequent proceeding, except when it was subjected to, quote, "cross-examination." Unquote.

The term "cross-examination" is a defined term in Evidence Code Section 761.

Section 761 defines it as, quote, "The examination of a witness by a party other than the direct examiner." Close quote.

The legislature is presumed to know what it included in its own enactments, particularly when it defines the terms it used in that same enactment.

Federal Rule of Evidence Section 804(b)(1) allows prior testimony where there was opportunity to, quote, "develop the testimony by direct, cross, or redirect examination," close quote specifically including the term "direct . . . examination," which distinguishes its scope from that of Evidence Code Section 1292.

Plaintiff has no interest in offering Fuhrman as a witness. Plaintiff has established the circumstances of the discovery and collection of the Rockingham glove by testimony of percipient witnesses, independent of Fuhrman. Defendant has no apparent need for Fuhrman's testimony, other than to show his alleged bias against defendant, and his impeachment by his conviction of the felony of perjury.

In other words, Defendant is not offering Fuhrman's testimony for any evidentiary purpose other than to discredit him as a witness.

Plaintiff has not offered Fuhrman as a witness; thus, there is no basis for his impeachment.

Plaintiff Goldman's motion to preclude the introduction of Fuhrman's prior testimony in the criminal case and to further exclude reference to his perjury conviction is granted on the foregoing grounds. MR. GELBLUM: Thank you, Your Honor.