Sidebar: Nicole's diary admissibility

📄 Sidebar: Nicole's diary admissibility — Friday, November 22, 1996

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C:\DEPT103\CIVIL\1996\NOV\22\SIDEBAR-NICOLE-S-DIARY-ADMISSI.DOC

TRIAL

▲ Day 21 of 57

◀ Redirect examination of O.J. Simpson (part 1) Cross-examination of O.J. Simpson (part 2) ▶

Date: Friday, November 22, 1996 • Utterances: 44

At sidebar, Baker objected to Petrocelli introducing Nicole Brown Simpson's diary entries without a prior 402 hearing, arguing the entries were inadmissible hearsay and of questionable authenticity. Petrocelli countered that prior in limine rulings had already addressed the issue, that Baker had opened the door in his opening statement by discussing Nicole's state of mind, and that the diary — written May 22 through June 4, days before her murder — was directly relevant to motive and the parties' relationship. Fujisaki reviewed the documents and overruled Baker's objection.

# 1 MR. PETROCELLI:

Now, if can I have the May 22 entry.

# 2 MR. BAKER:

Your Honor, I want to approach at this time.

# 3 THE COURT:

You may.

# 4 (The following proceedings were held at the bench with reporter:)

# 5 MR. BAKER:

Before we were supposed to have any comments about the diaries we were supposed to have a 402 hearing. We've never had any 402 hearings about the diaries. He's already mentioned her writings without any 402 hearing whatsoever. I objected, you overruled it, I asked to approach, you declined my request. I again object to any of her writings until there's a 402 hearing which has never occurred nor been requested.

# 6 MR. PETROCELLI:

Excuse me, Your Honor, this was ruled on. I'm looking for the transcript from the hearing. I marked pages this morning. In limine they -- they tried to keep out, all of these. The Court's statement, Your Honor, specifically ruled that Nicole's state of mind was relevant to the issue of motive, and said that if there's any particular pieces of evidence that needed to be reviewed on an individual basis for purposes of 352 you would take a look at it, okay. So you said in the hearing that --

# 7 MR. BAKER:

Keep your voice down.

# 8 MR. PETROCELLI:

Sorry. State of mind issue is relevant. Mr. Baker opened that door wide open in his opening statement, talking about Nicole's state of mind, going on and on about Simpson's relationship, about how he was the confidante, about how it was Simpson who was breaking up with Nicole and not the other way around, and the -- The Nicole diaries are specifically relevant to prove the point of our case here.

And she began making entries on May 22, and she made them through June 4 and she was dead days later, Your Honor. As you will see, we have officially split up on May 22, 1994. This is her handwriting. And he's been shown this, he authenticates this. He doesn't dispute certain facts, he only wants to put his characterization on it. If she's not available then her writings now speak for itself and the state of mind exception applies.

# 9 MR. BAKER:

It doesn't apply. This is pure hearsay. And we have to have, it seems to me, a total 402. He cherry-picks. Half of these things of her diaries don't even have the right dates on them. They talk about Mr. Simpson being in her house when he's in New York. And so the authenticity of these diary entries are definitely in issue. And for him to do this without the 402 hearing that you requested seems to me to be improper.

Now, I object to it under hearsay grounds as well as the 402 grounds.

# 10 MR. PETROCELLI:

There was a motion in limine.

# 11 (Referring to transcript.)

# 12 MR. PETROCELLI:

This is number 9 and it's number 10, okay. 19 back here. Okay.

This is in reference to her out-of-court statements in police reports. (READING:) The state of mind of the victim is relevant to show the relationship with the defendant which would in turn support the plaintiffs' contention that defendant had a motive to commit the murder. Other statements may be admissible as spontaneous statements and others under the new statute.

So you went state of mind spontaneous, and then statute. Then in another position not related to police statements, number 10, to preclude exactly this material reference to out-of-court statements concerning defendants' conduct in relationship with Nicole Brown Simpson, you ruled the statements have to be relevant to some issue in the case if the relationship between the defendant and Nicole Brown Simpson becomes an issue, and I assume it will. These statements may well become relevant, the Court will, depending on the statements, rule at the time that they are offered.

So it's right --

# 13 MR. BAKER:

It's the specific motion relative to hearsay, avoiding the specific motion relative --

# 14 MR. PETROCELLI:

Here find it. I'm not trying to avoid anything.

In any event this is a two-page -- two-page document that she began on May 22 and it directly bears on the relationship and her state of mind. And he's sitting there putting his spin on everything, and we're entitled to put this into evidence, Your Honor.

# 15 (Court motions to the clerk)

# 16 THE COURT:

Court hails to clerk.

# 17 THE COURT:

Can you bring me the two black binders.

# 18 THE CLERK:

Yeah.

# 19 MR. PETROCELLI:

There's -- they don't dispute the authenticity of this handwriting. It's her handwriting.

# 20 (Pause)

# 21 MR. PETROCELLI:

The critical issue here, Your Honor, is that there's a buildup of intense anger and hostility between the parties which we say proves the motive Mr. Simpson has denied, that --

# 22 THE COURT:

Excuse me.

# 23 (Pause)

# 24 THE CLERK:

There were three. You want the thick ones, right?

# 25 THE COURT:

Yeah.

# 26 (The Clerk hands black binder notebooks to the Court.)

# 27 (Pause for the Court to read document.)

# 28 MR. PETROCELLI:

You're talking about number 10, the motion I just referred to.

# 29 MR. LEONARD:

The diaries.

# 30 MR. PETROCELLI:

You didn't limit it to diaries.

# 31 MR. GELBLUM:

What are you looking for?

# 32 MR. PETROCELLI:

There they are.

# 33 MR. GELBLUM:

This one.

# 34 (Indicating to minute orders.)

# 35 THE COURT:

What are you offering?

# 36 MR. PETROCELLI:

First bring this up here.

# 37 (Indicating to document with Nicole Brown Simpson's writing.)

# 38 THE COURT:

And what else are you offering?

# 39 MR. PETROCELLI:

Basically the whole document. It's two pages.

You want to take it out, Your Honor?

# 40 (Counsel removes document from plastic covering.)

# 41 (Court reviews documents.)

# 42 MR. PETROCELLI:

Under new hearsay statute applies to the 6 paragraph to 6, 3 --

# 43 MR. BAKER:

Your Honor, they went up to Sacramento and Fred Goldman testified to get a statute passed, to get a statute passed for this. This doesn't meet the criteria for that statute and this is hearsay and it's inadmissible hearsay. Her state of mind isn't relative to this issue.

KEY QUOTE

# 44 THE COURT:

I think it is. Overruled.

KEY QUOTE

Temperature

tense

Key Quotes (4)

Daniel Petrocelli

she was dead days later, Your Honor. As you will see, we have officially split up on May 22, 1994. This is her handwriting.

Petrocelli frames the diary as Nicole's final recorded words about the relationship, maximizing its emotional and legal weight.

Robert Baker

they went up to Sacramento and Fred Goldman testified to get a statute passed, to get a statute passed for this.

Baker alleges the Goldman family lobbied the California legislature specifically to create a hearsay exception for this case — a rare and pointed accusation about litigation tactics.

Robert Baker

Half of these things of her diaries don't even have the right dates on them. They talk about Mr. Simpson being in her house when he's in New York.

Baker's only substantive challenge to the diary's content — an authenticity attack suggesting factual errors that could undermine reliability.

Hiroshi Fujisaki

I think it is. Overruled.

Terse, decisive ruling admitting the diary over all of Baker's objections.

Evidence (2)

Informal

Nicole Brown Simpson's handwritten diary, two pages, entries dated May 22 through June 4, 1994

offered by Petrocelli; contested by Baker; admitted over objection

Informal

In limine hearing transcript (motions 9 and 10), including prior court rulings on Nicole's out-of-court statements and state of mind

referenced by Petrocelli to establish prior rulings; Court reviews binders

Notable Exchanges (2)

Daniel Petrocelli•Robert Baker

Baker argues no 402 hearing was ever held; Petrocelli reads from the in limine transcript to show the Court already ruled the state-of-mind exception applies, with Fujisaki to rule on individual pieces as offered.

strategic

Robert Baker•Daniel Petrocelli

Baker accuses the Goldman family of lobbying Sacramento to pass a hearsay statute specifically for this case; Petrocelli does not directly respond to the charge, instead pressing on relevance.

heated

Credibility Attacks (1)

⚔ Nicole Brown Simpson (diary)

authenticity challenge

Baker argued that diary entries contain factual errors — claiming Simpson was at Nicole's house on dates when he was documented to be in New York — raising doubts about the diary's reliability and dating.

Witness Demeanor

(The following proceedings were held at the bench with reporter:)

(Referring to transcript.)

(Court motions to the clerk)

(Pause)

(The Clerk hands black binder notebooks to the Court.)

(Pause for the Court to read document.)

(Indicating to minute orders.)

(Indicating to document with Nicole Brown Simpson's writing.)

(Counsel removes document from plastic covering.)

(Court reviews documents.)

Objections

4 objections (0 sustained, 4 overruled)

Proceeding 8385 • 44 utterances

Civil Trial

Department 103