Sidebar: witness scope and videotape

📄 Sidebar: witness scope and videotape — Wednesday, November 6, 1996

Address:

C:\DEPT103\CIVIL\1996\NOV\6\SIDEBAR-WITNESS-SCOPE-AND-VIDE.DOC

TRIAL

▲ Day 10 of 57

◀ Recess Direct examination of Richard Rubin (part 1) ▶

Date: Wednesday, November 6, 1996 • Utterances: 98

Before calling glove manufacturer expert Richard Rubin, plaintiffs' counsel sought guidance on whether Baker could use the criminal trial videotape of OJ Simpson trying on the gloves for cross-examination. Petrocelli argued the video was hearsay and prejudicial, citing the uncontrolled conditions (Simpson wore latex gloves underneath). Fujisaki ruled that since plaintiffs were connecting Simpson to the gloves, 'fit' was necessarily part of cross-examination — but if Simpson tried on the gloves in this trial, no latex gloves would be permitted.

# 1 MR. KELLY:

Your Honor, we'd like to call our next witness, Richard Rubin.

Judge, well, he's on his way.

Could we approach?

# 2 THE COURT:

Okay.

# 3 MR. KELLY:

Judge, this witness, Richard Rubin, was a former employee, the general manager, and VP of Aris, the manufacturer of this glove.

We're putting him on the stand to discuss the characteristics of this particular glove, to identify the glove, some of the photographs that were just put into evidence, and to discuss the manufacture and et cetera, the crime scene photos.

And I don't want to be put in the position where I -- where on cross, Mr. Baker may ask for a demonstration, or put up on the Elmo, photographs or video from the criminal trial of Mr. Simpson's deposition.

And I just don't want that put to the jury without any notice, because once that's done, there's no way to get away from that.

We certainly do not intend to approach that on our direct case, Your Honor.

# 4 MR. BAKER:

Your Honor, they have listed this guy as an expert. And I don't think you can play hide the ball with every witness. They played it with about 15 others so far.

Whatever the number is, you can't play hide the ball with experts. I get to cross-examine on full breadth of his experience.

And he was called back in the criminal trial for the express purpose, after the gloves didn't fit, and testified relative to that. And he is an alleged expert on these gloves. And I think I am entitled to a full and complete cross-examination, including the video of Mr. Simpson, those gloves not fitting.

# 5 MR. KELLY:

Judge, first of all, that's only one man's opinion of whether they fit or not.

But secondly, that was from the criminal trial, Mr. Simpson --

# 6 THE COURT:

If you're offering this man as an expert, certainly that's within the cross-examination.

# 7 MR. KELLY:

I'm not questioning the bounds of the cross-examination; it's the demonstration part, the videotape that might pop up on the screen.

First of all, Your Honor, there was -- at the criminal case, he was not subject to cross-examination. It was done under questionable controls. We don't know whether his weight has changed, whether his hand size has changed; we don't know any of those things. We have no control over it. It was not put on for purposes --

# 8 THE COURT:

If you're going to ask about fit --

# 9 MR. PETROCELLI:

We're not.

# 10 MR. KELLY:

We're not.

# 11 THE COURT:

What are you going to ask him?

# 12 MR. KELLY:

He's going to be identifying the photographs of Mr. Simpson, identifying the gloves he's wearing in there, and identifying the crime-scene gloves, also, in terms of the manufacture, make, model, style, size, whether they're a pair or not, things like that.

# 13 THE COURT:

With the idea of what?

# 14 MR. KELLY:

Hooking them up to the receipts, Your Honor, that we put into evidence yesterday.

# 15 THE COURT:

With the idea of what?

# 16 MR. KELLY:

To suggest that he owned these gloves.

# 17 THE COURT:

Well, but "doesn't fit" have something to do with it?

# 18 MR. PETROCELLI:

He can't --

# 19 MR. KELLY:

He can't -- go ahead.

# 20 MR. PETROCELLI:

You can't --

# 21 THE COURT:

If you open it up, he's going to cross-examine.

# 22 MR. PETROCELLI:

That's what we're here to find out.

He cannot put on in this case a videotape that's not in the official record. A camera -- videotape from Court TV or image of Mr. Simpson trying on gloves in the criminal case, it's hearsay as to this case.

This expert's not relying on that. He can -- he can ask --

# 23 THE COURT:

He's not -- I'm sure he's not relying on it. Mr. Baker wants to cross-examine.

# 24 MR. PETROCELLI:

He can cross-examine this expert about his observations in the courtroom, but he can't play the TV coverage of that event.

And I think under 352, as well as the hearsay rule, it's not proper.

Your Honor, there was a lot of controversy surrounding how he put the gloves on. He had latex gloves underneath those in the criminal case. We don't want to get into that in this case.

# 25 MR. BAKER:

But --

# 26 MR. PETROCELLI:

You can cross-examine him fully. You can't bring in TV coverage.

# 27 MR. BAKER:

Yes, I can.

# 28 MR. PETROCELLI:

No, you can't, any more than I can bring in TV coverage of witnesses who testified.

In the criminal trial, Mr. Simpson was not subject to cross-examination.

# 29 THE COURT:

There is no cross-examination; it's a visual depiction of him trying on gloves, period. There's no testimony.

# 30 MR. PETROCELLI:

He can testify as to what he saw. But, Your Honor, I think it's highly inappropriate to let him play television coverage from another trial. And also, Mr. Simpson --

# 31 THE COURT:

You showed pictures of him at football games with gloves on.

# 32 MR. PETROCELLI:

Those are authenticated by independent witnesses.

# 33 THE COURT:

I don't have any problem with authenticating those glove pictures. Do you?

# 34 MR. PETROCELLI:

We think it's highly prejudicial and hearsay to put this guy up in front of this jury to go through a dog and pony show of how other lawyers decided to make him try on gloves.

# 35 THE COURT:

You put him on --

# 36 MR. PETROCELLI:

We're --

# 37 THE COURT:

-- I'm going to allow him to --

# 38 MR. PETROCELLI:

You're not going to --

# 39 THE COURT:

-- to be cross-examined.

# 40 MR. PETROCELLI:

We're going to ask him -- to ask him to identify in the photos.

# 41 THE COURT:

No; you want to connect the gloves up with the defendant.

KEY QUOTE

# 42 MR. PETROCELLI:

Absolutely.

# 43 THE COURT:

Fine. I think fit is part of it.

# 44 MR. PETROCELLI:

We have no --

# 45 THE COURT:

Yes --

# 46 MR. PETROCELLI:

Why should he show a video of what happened in that court case be played in the trial?

# 47 THE COURT:

What happened?

# 48 MR. PETROCELLI:

Your Honor, he even -- he had latex gloves underneath. That wasn't a control.

# 49 THE COURT:

That's something you can establish on your examination, on your redirect.

# 50 MR. PETROCELLI:

We vigorously object to this, Your Honor.

# 51 THE COURT:

Well, your objection is noted.

# 52 MR. PETROCELLI:

I think it's highly improper to poison this jury when what happened in that case. It's hearsay, in addition, to have him get up in front of this jury --

# 53 THE COURT:

It's appropriate cross-examination. You're putting on an expert for the purpose of connecting the defendant to this glove; and I think the defense has to have a reasonable opportunity to cross-examine everything, including this purported demonstration.

# 54 MR. PETROCELLI:

He can cross him on that, but why play the video?

# 55 THE COURT:

So we can see it. What's better than seeing it?

# 56 MR. PETROCELLI:

Because we had nothing to do with how those gloves were put on, nor did this expert here, either.

# 57 THE COURT:

I don't think that's relevant.

# 58 MR. PETROCELLI:

Oh, Your Honor, I disagree with that.

Very respectfully, I think this is highly prejudicial to our case.

# 59 THE COURT:

That's part of your case?

# 60 MR. PETROCELLI:

Not what this these criminal lawyers did is not part of our case. You're going to turn us into -- I'm not going to mention anything on the record beyond what I've said.

# 61 THE COURT:

All I'm saying is that the visual depiction of what Mr. Simpson did with the gloves is an appropriate part of the cross-examination, where you are offering a witness trying to connect up the glove to Simpson.

# 62 MR. KELLY:

Judge --

# 63 MR. PETROCELLI:

I can't make my argument any more clear.

KEY QUOTE

# 64 THE COURT:

Well, I can't make my ruling any clearer.

KEY QUOTE

# 65 MR. PETROCELLI:

Judge, could we take ten minutes? Because --

# 66 MR. BREWER:

Yeah, we need to talk about this.

# 67 THE COURT:

Excuse me?

# 68 MR. KELLY:

Could we take a few minutes?

# 69 THE COURT:

Mr. Baker, they're still talking.

# 70 MR. BAKER:

I'm sorry.

# 71 THE COURT:

If you don't want to be part of it, that's okay.

# 72 MR. BAKER:

No. I thought we just --

I apologize, sir. I thought we finished.

# 73 THE COURT:

They don't want to go away.

# 74 MR. PETROCELLI:

Better off staying back. I haven't said a word.

# 75 THE COURT:

All right. Say what you said in his absence.

# 76 MR. PETROCELLI:

Your ruling --

# 77 THE COURT:

Wait a minute. He said something in his absence.

# 78 MR. PETROCELLI:

Say it again.

# 79 MR. KELLY:

All I asked was for ten or fifteen minutes at this time to discuss it.

# 80 MR. BAKER:

Fine.

# 81 MR. PETROCELLI:

It's your ruling that he can play the video of the criminal trial?

# 82 THE COURT:

My ruling is if you offered this witness to testify as to the gloves, and in an effort to connect the defendant up with the gloves, by definition, the question of whether or not the glove fit him has to be part of the connection. And that's an area that the defense has a right to cross-examine about.

And the cross-examination may include any demonstration, physical depiction of Mr. Simpson allegedly trying on the gloves. And that's part of the cross-examination.

# 83 MR. PETROCELLI:

Can we have a ruling through our witness he can't put the gloves on his client during this phase?

# 84 THE COURT:

I will make this ruling: If Mr. Simpson wants to try on the gloves, he's going to have to try it on without latex gloves.

# 85 MR. PETROCELLI:

Can we have him putting the gloves on out of the presence?

# 86 THE COURT:

I'm not going to make him put on the gloves.

# 87 MR. PETROCELLI:

We don't want to, either. We want a ruling if he is, are you going to permit him to put on gloves in this phase of the examination in our case?

# 88 THE COURT:

Only if he puts it on without latex.

# 89 MR. PETROCELLI:

You plan to have him do that?

# 90 THE COURT:

I don't think it's a fair depiction, a fair cross-examination. To that extent, I agree with you. But nevertheless, that's part of the physical evidence on which the defense can cross-examine, and --

# 91 MR. PETROCELLI:

I would request that if you do decide to put the gloves on, in addition to no latex, that they be put on out of the presence of the jury, and that he can show the jury the gloves on his hand, but not struggling -- not struggling to get the gloves on, Your Honor.

# 92 MR. BAKER:

No.

# 93 MR. PETROCELLI:

We have no control over that. If he wants to do that in his case when he puts his client on, that's one thing; he doesn't have to do that in our case. He wants to cross-examine the witness, that's fine, but not going to have his client showing up in the middle of our case and put on the gloves under circumstances we don't control.

# 94 THE COURT:

Okay. We'll cross that bridge when we get to it.

# 95 MR. PETROCELLI:

You'll give us fair warning?

# 96 MR. BAKER:

Of course.

# 97 MR. KELLY:

Can we take 15 minutes, Judge?

# 98 THE COURT:

Go to your room.

Temperature

tense

Key Quotes (5)

Daniel Petrocelli

I can't make my argument any more clear.

Petrocelli's exasperated concession that he's losing this argument

Hiroshi Fujisaki

Well, I can't make my ruling any clearer.

Fujisaki's dry mirror response — a rare moment of judicial wit shutting down the argument

Hiroshi Fujisaki

If Mr. Simpson wants to try on the gloves, he's going to have to try it on without latex gloves.

Key ruling addressing the latex gloves controversy from the criminal trial — Fujisaki acknowledging the contamination issue while still allowing the demonstration

Hiroshi Fujisaki

You want to connect the gloves up with the defendant. Fine. I think fit is part of it.

The core ruling — once plaintiffs open the door on glove identification, fit becomes fair game for cross

Hiroshi Fujisaki

Go to your room.

Fujisaki's dismissal after granting the 15-minute recess request — characteristically terse

Evidence (4)

Informal

Videotape (Court TV footage) of OJ Simpson attempting to try on the gloves during the criminal trial

contested — Baker seeks to play on cross; Petrocelli objects as hearsay and prejudicial; Fujisaki allows it

Informal

Photographs of Simpson wearing gloves (football game photos previously introduced)

discussed as authenticated by independent witnesses

Informal

Crime scene gloves

referenced — Rubin to identify make, model, style, size, and whether they constitute a pair

Informal

Receipts entered into evidence the previous day

discussed — Rubin testimony intended to connect gloves to receipts to establish Simpson's ownership

Notable Exchanges (3)

Daniel Petrocelli•Hiroshi Fujisaki

Petrocelli argued the criminal trial video was hearsay, that plaintiffs had no control over how the gloves were put on (latex gloves underneath), and that showing it would 'poison the jury.' Fujisaki systematically rejected each objection, culminating in the mirrored 'I can't make my ruling any clearer' response.

heated

Hiroshi Fujisaki•Robert Baker

Baker began speaking as if the sidebar was over; Fujisaki cut him off noting plaintiffs were still arguing, then wryly offered 'If you don't want to be part of it, that's okay.'

light

Daniel Petrocelli•Hiroshi Fujisaki

Petrocelli sought additional protection — that if Simpson tried on gloves, it be done outside the jury's presence so they wouldn't see the 'struggling.' Fujisaki deferred: 'We'll cross that bridge when we get to it.'

strategic

Light Moments (2)

Hiroshi Fujisaki

Baker began talking as if the sidebar was concluded; Fujisaki told him they were still going, and when Baker apologized, Fujisaki deadpanned 'They don't want to go away.'

Hiroshi Fujisaki

'Go to your room.' — Fujisaki's response to Kelly asking for 15 minutes to confer with co-counsel.

Credibility Attacks (1)

⚔ criminal trial glove demonstration

challenging controlled conditions

Petrocelli argued the criminal trial demonstration was conducted under 'questionable controls' — Simpson wore latex gloves underneath, his weight and hand size may have changed, and plaintiffs had no ability to cross-examine at that time. Fujisaki acknowledged the latex issue and ruled any new demonstration must be without latex.

Objections

2 objections (0 sustained, 1 overruled)

Proceeding 8167 • 98 utterances

Civil Trial

Department 103