Admissibility discussion: Douroux testimony

📄 Admissibility discussion: Douroux testimony — Monday, November 4, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\4\ADMISSIBILITY-DISCUSSION-DOURO.DOC

TRIAL

▲ Day 8 of 57

◀ Housekeeping: witness schedule and exhibits Jury instruction: prior trial testimony ▶

Date: Monday, November 4, 1996 • Utterances: 25

Plaintiff's counsel Peter Gelblum sought to read in the prior criminal trial testimony of Bernie Douroux, a tow-truck driver and chain-of-custody witness, on grounds that he was unavailable. Defense counsel Robert Baker objected, arguing insufficient proof of unavailability and that a body attachment should have been issued. Judge Fujisaki ultimately allowed the prior testimony to be read in.

# 1 MR. GELBLUM:

The first witness will be a minute and a half. He is tow-truck driver named Bernie Douroux, who is unavailable. We intend to read a portion of his criminal trial testimony.

I'd like to have Mr. Foster read the answers and I'll read questions, and that way -- if that's acceptable to the Court.

# 2 THE COURT:

Okay. If there's no objection.

# 3 MR. BAKER:

I'd like something showing that he's unavailable. I haven't seen any showing that he's unavailable.

# 4 MR. GELBLUM:

I have a declaration.

# 5 MR. BAKER:

Let me see it.

# 6 (Pause in proceedings.)

# 7 THE COURT:

Which witness?

# 8 MR. GELBLUM:

Bernie Douroux, Your Honor.

# 9 MR. BAKER:

The only thing I don't see in here, he was apparently served with a subpoena when he was supposed to be here.

# 10 MR. GELBLUM:

The subpoena, I believe, was possibly for the first day of trial:

# 11 MR. BAKER:

A body attachment ought to issued for this man. This is not --

# 12 MR. GELBLUM:

Your Honor, this is literally a minute and a half, chain-of-custody witness. I don't think there's any doubt about any of his testimony. We ought to be able to read it in.

KEY QUOTE

# 13 MR. BAKER:

I see. The form, since it's short, we can disregard the law; that's a good idea.

KEY QUOTE

# 14 MR. GELBLUM:

I think we established his unavailability, Your Honor.

# 15 MR. BAKER:

Your Honor, if he's going to read that, we want to read the cross-examination.

# 16 THE COURT:

I haven't even finished reading this thing --

# 17 MR. BAKER:

I'm sorry.

# 18 THE COURT:

-- you know.

# 19 (Pause in proceedings.)

# 20 THE COURT:

Go ahead.

# 21 MR. BAKER:

A body attachment ought to issued for him if he's unavailable, if he's been served with a subpoena, in violation of the subpoena.

# 22 MR. GELBLUM:

We're prepared to go ahead today. We did what we could do.

I think all the law requires us to do is serve him a subpoena, try to get him here. As the declaration established, we couldn't get him here. That makes him unavailable under the code and allows us to bring him in under the hearsay rule for prior testimony.

We have no objection to them reading in anything, as long as it's not objectionable.

# 23 THE COURT:

All right; you may do so.

# 24 MR. GELBLUM:

Thank you, Your Honor.

# 25 (Jurors resume their respective seats.)

Temperature

procedural

Key Quotes (2)

Peter Gelblum

This is literally a minute and a half, chain-of-custody witness. I don't think there's any doubt about any of his testimony. We ought to be able to read it in.

Gelblum frames the objection as procedural obstructionism over trivial testimony.

Robert Baker

I see. The form, since it's short, we can disregard the law; that's a good idea.

Baker's sarcastic pushback — arguing that brevity doesn't excuse failure to follow proper procedures for establishing unavailability.

Evidence (2)

Informal

Declaration of unavailability for Bernie Douroux

presented to establish witness unavailability for prior testimony reading

Informal

Bernie Douroux criminal trial testimony (portion)

approved for reading into the civil record

Notable Exchanges (1)

Robert Baker•Peter Gelblum

Baker argued that serving a subpoena alone is insufficient to establish unavailability and that a body attachment should have been sought; Gelblum countered that the law only requires serving the subpoena and making a good-faith effort to secure attendance.

strategic

Light Moments (1)

Robert Baker

Baker sarcastically suggesting plaintiff's counsel believes the law can be disregarded because the testimony is short.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 8125 • 25 utterances

Civil Trial

Department 103