📄 Sidebar: examination scope — Monday, November 25, 1996
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C:\DEPT103\CIVIL\1996\NOV\25\SIDEBAR-EXAMINATION-SCOPE.DOC
TRIAL
▲ Day 22 of 57

Sidebar: examination scope

Date: Monday, November 25, 1996 • Utterances: 62
A sidebar hearing at the bench where Judge Fujisaki determined the scope of cross-examination for remaining co-counsel (Brewer for the Brown/Goldman families, Kelly for the Goldman family) after Petrocelli's examination of OJ Simpson concluded. Fujisaki repeatedly pushed back on redundant questioning, ultimately permitting only a narrow set of topics: the Chicago flight, Paula Barbieri jail conversations, the suicide note statements, and the 1989 domestic violence incident continuation from Michelle's room.
1 THE COURT:

You may begin.

2 MR. BAKER:

We can start anytime you like. If you want me to start now --

3 MR. BREWER:

Your Honor, we have some questions.

We'd like to approach.

4 MR. BAKER:

I'm going object to that. We've been through --

5 MR. BREWER:

We can deal with this at side bar. We have questions. We would like to start tomorrow, get our service tech back.

I'd like to have a hearing on that, go till 4:30.

6 THE COURT:

Approach the bench.

7 (The following proceedings were held at the bench, with the reporter.)
8 THE COURT:

What is the scope of your examination?

9 MR. BREWER:

Well, the scope of the examination is to cover at least the areas that Mr. Petrocelli had covered, but --

10 THE COURT:

I'm not going to let's you go over the same area --

11 MR. BREWER:

I'm not going to go over the same area.

12 THE COURT:

-- covered, because as far as I can tell, there are only two sides on this particular issue.

And I indicated to you at the beginning of the trial, that I was not going to abide by three attorneys asking the same questions over, over and over three times.

13 MR. BREWER:

That is not our intention. And you know we are a party, so we have an absolute right under 776.

14 THE COURT:

As far as I'm concerned you're an aside.

KEY QUOTE
15 MR. BREWER:

That's not what the statute says.

16 THE COURT:

I'm going to treat you as an aside.

17 MR. BREWER:

So you are denying us a right under 776 to cross-examine him?

KEY QUOTE
18 THE COURT:

You may cross-examine him. I'm not going to permit you to go over the same thing, over and over, because --

19 MR. BREWER:

It's not my intention.

First of all, Judge, I don't have a lot of questions. It's really not my intention to sit here and go over things that Mr. Petrocelli has already covered. There are certain areas that were not covered.

20 THE COURT:

Name one.

21 MR. BREWER:

For example, the flight back from Chicago. There is testimony from Mr. Simpson relative to how many times he used the restroom, over what period of time, whether he slept, whether he didn't sleep.

I'd like to develop that there is testimony relative to his emotional response when he received the news that his wife had been killed in Chicago.

22 THE COURT:

That was asked and answered.

23 MR. BREWER:

No it was not.

24 THE COURT:

Yes, it was.

25 MR. BREWER:

No, it was not.

26 THE COURT:

I ruled it was.

27 MR. BREWER:

I can tell that when he was told, when his wife was murdered -- In other words, his ex-wife was murdered. He was pissed that would be his testimony.

We don't think that's consistent with someone told that their wife is dead, that they would be pissed off or angry when they hear that news. That was not answered specifically.

The other would be, there would be testimony relative to discussions he had with Paula Barbieri while he was in jail concerning the messages that had been the subject of Mr. Petrocelli's cross-examination. There will be another area.

And then I would intend also to compile a list of witnesses that Mr. Simpson claims provides false testimony against him in connection with the case and have that list presented.

KEY QUOTE
28 THE COURT:

Excuse me. Say that again.

29 MR. BREWER:

I intend to have Mr. Simpson identify every single person who's testified in this case who has lied or has put on false testimony and create a demonstrative exhibit to illustrate the number and the scope of people that he claims that are lying against him in connection with this case.

KEY QUOTE
30 MR. BAKER:

That's argument.

31 THE COURT:

What is the relevance of that?

32 MR. BREWER:

The relevance of that is to illustrate Mr. Simpson -- putting him against virtually every witness.

33 THE COURT:

I'm not going to permit that.

34 MR. BREWER:

That would be the other area.

35 THE COURT:

So far, you've told me only one area that I would permit.

36 MR. BREWER:

What areas?

37 THE COURT:

Two areas. The flight on the airplane and the testimony with regards to Barbieri. That's all.

38 MR. BREWER:

How about the area where -- in response to how he reacted?

39 THE COURT:

I already ruled on that.

Okay. Mr. Kelly.

40 MR. KELLY:

Your Honor, I had an area I was going to pick up on from Mr. Petrocelli, which was Mr. Simpson's subsequent actions after he left Rockingham the first time on New Year's morning, 1989.

Other than that, I was not going to go into other areas.

41 MR. BAKER:

They went into that area almost a whole half-day.

42 MR. KELLY:

I understand that where we left off was in Michelle's room. I was going it pick up there on some subsequent actions; that's it. That's the only area.

43 THE COURT:

Okay.

44 MR. BREWER:

There are two other areas I didn't mention.

On the suicide note, there are other statements that I would --

He mentioned in opening statement that I would like to address to Mr. Simpson. One is his reference to himself as a battered husband/boyfriend. There's another in the suicide note where he refers to himself as this "lost person," and there's reference, to the real O.J.

45 THE COURT:

Real what?

46 MR. BREWER:

The real O.J. He says that in the suicide note. Those are all things that I mentioned in the opening statement that I would like to elicit from him, the statements he made in connection with the suicide note.

47 THE COURT:

I'll permit that.

48 MR. BREWER:

And there is one other area that is -- it is something Mr. Petrocelli covered, but he didn't cover a couple things in connection with that.

That is, in the Bronco, if you recall, he addressed the areas of the interior of the vehicle where there was blood that was consistent with someone who was bleeding from their joint -- the back side of the joint. And what I would like to do is also establish that that's consistent with somebody turning on the headlights, flipping it on at night.

49 THE COURT:

No.

50 MR. BREWER:

No?

51 THE COURT:

You may not go into that.

52 MR. KELLY:

Judge, with regard to the '89 incident, when we pick up Michelle's room, you're going right now.

53 MR. BREWER:

What's that?

54 MR. KELLY:

I was going to play that ten-second portion of the tape, also.

55 THE COURT:

What ten-second portion?

56 MR. KELLY:

Of the 911 tape, that it's from Michelle's room, that was not played. And I was going to pick up from there. After that is all the subsequent action, when Mr. Simpson arrives in Michelle's room. That's where I was going to pick up a little bit. That's the only area I'll be covering.

57 THE COURT:

What are you talking about?

What are you talking about?

58 MR. KELLY:

When Mr. Simpson arrives in the housekeeper's room where Nicole is, okay. Where he comes outside, he comes into the housekeeper's room; Nicole is on the phone with the police, making the 911 call at that point. The call is made from there. And I was going to play the first ten seconds of that tape and take it from there forward.

59 THE COURT:

Take it from there forward?

60 MR. KELLY:

Yes, to some of the subsequent acts when he left the property and they all --

61 THE COURT:

Okay.

62 MR. KELLY:

Okay. That's all.

Temperature

tense

Key Quotes (5)

Michael Brewer
I intend to have Mr. Simpson identify every single person who's testified in this case who has lied or has put on false testimony and create a demonstrative exhibit to illustrate the number and the scope of people that he claims that are lying against him in connection with this case.
Unusual proposed strategy to use Simpson's own accusations as a demonstrative exhibit — immediately rejected by Fujisaki as irrelevant and argumentative.
Michael Brewer
I can tell that when he was told, when his wife was murdered -- In other words, his ex-wife was murdered. He was pissed that would be his testimony. We don't think that's consistent with someone told that their wife is dead, that they would be pissed off or angry when they hear that news.
Brewer argues Simpson's angry emotional response to news of Nicole's death is itself incriminating — a consciousness-of-guilt angle.
Hiroshi Fujisaki
As far as I'm concerned you're an aside.
Fujisaki bluntly demotes Brewer's standing, provoking a direct legal challenge — Brewer invokes CCP 776 rights of a party to cross-examine.
Michael Brewer
So you are denying us a right under 776 to cross-examine him?
Direct pushback invoking California Code of Civil Procedure 776, asserting that as a party they have an absolute right to cross-examine adverse witnesses.
Hiroshi Fujisaki
Name one.
Terse challenge to Brewer to justify new areas of questioning not already covered by Petrocelli — captures Fujisaki's no-nonsense courtroom management style.

Evidence (4)

Informal
911 tape from Michelle's (housekeeper's) room — first ten seconds not previously played, related to the January 1989 domestic violence incident
Kelly requests to play a ten-second clip during his cross-examination
Informal
OJ Simpson suicide note — references to 'battered husband/boyfriend,' 'lost person,' and 'the real O.J.'
Brewer permitted to elicit from Simpson statements he made in the note
Informal
Blood evidence in the Bronco consistent with someone bleeding from the back of a joint — Brewer wanted to argue it was consistent with turning on headlights
Proposed line of questioning denied by Fujisaki
Informal
Proposed demonstrative exhibit listing all witnesses Simpson claims gave false testimony
Denied — Fujisaki ruled it irrelevant

Notable Exchanges (4)

Michael BrewerHiroshi Fujisaki
Brewer invokes CCP 776 to assert a party's absolute right to cross-examine; Fujisaki responds 'I'm going to treat you as an aside,' prompting Brewer to accuse the judge of denying a statutory right.
confrontational
Michael BrewerHiroshi Fujisaki
Brewer proposes having Simpson identify every lying witness as a demonstrative exhibit; Fujisaki asks 'What is the relevance of that?' and denies it outright.
strategic/rejected
Michael BrewerHiroshi Fujisaki
Back-and-forth over whether Simpson's emotional reaction on the Chicago flight was 'asked and answered' — Brewer and Fujisaki flatly contradict each other ('No it was not.' / 'Yes, it was.' / 'No, it was not.' / 'I ruled it was.').
tense
John KellyHiroshi Fujisaki
Kelly explains he wants to resume the 1989 domestic violence incident from the moment Simpson enters the housekeeper's room where Nicole is on the 911 call. Fujisaki requires repeated clarification before permitting it.
procedural

Credibility Attacks (2)

⚔ OJ Simpson
emotional inconsistency / consciousness of guilt
Brewer argues Simpson's angry reaction to news of Nicole's murder is inconsistent with the response of an innocent person and seeks to develop this on cross-examination.
⚔ Multiple trial witnesses (proposed)
defendant's own accusations / proposed demonstrative exhibit
Brewer proposed creating an exhibit listing every witness Simpson claims lied — denied by Fujisaki as argumentative and irrelevant.

Objections

1 objections (1 sustained, 0 overruled)
Proceeding 8399 • 62 utterances
Civil Trial
Department 103
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📂 NOV 25, 1996 📄 Sidebar: examination scope
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