First of all, Your Honor, we discussed the appropriate standard. And it is our very, very strong and firm position that the appropriate standard is simply Evidence Code 801, and not the Kelly Frye standard, if the Kelly Frye standard applies. We've been listening to testimony that meets all prongs of that test.
Under the California Supreme Court case People_v._Stoll, Kelly Frye does not apply unless you have two factors present: One, the opinion and methods used are derived from new scientific techniques and procedures.
The testimony, I think, clearly shows that is not the case here.
Okay.
My position, of course, is that for each of them, neither of them is testifying to a matter that is developed from new scientific techniques and procedures.
In addition, neither Dr. Dietz nor Dr. Dutton -- I don't think their testimony runs any risk, in the words of Stoll, carrying a misleading aura of scientific infallibility. And if that's the case, Kelly Frye simply does not apply.
This is not fingerprints or voice prints; it doesn't appear to have a single, clear-cut answer.
In Dr. Dutton's case from the research that are characteristics of spousal homicides.
In Dr. Dietz's case, his personal opinion based on his experience and all the other things that he mentioned, the literature, in the field and his many years of work in the field as to what you can tell from the crime scene as to motive and what you can tell from the other features that he talked about the relationship between the parties, prior relationship between priors -- prior behavior of parties and what what you can determine from motive.
Dr. Dietz has been able to testify on many occasions on both of those issues repeatedly. He cited some of those cases more in his C.V. This is more common expert testimony which has been received in California courts and other courts.
I don't -- I haven't seen one case in which Dr. Dietz's type of testimony has been offered to establish identity. Not one.
KEY QUOTEThe mother denied committing the acts. And the issue was, before she had committed the acts; the issue here is whether Mr. Simpson committed acts --
The child was in the care of the mother. The child died of a series of medical conditions. And the expert testimony had to do with the interpretation of those medical happenstances as her history progressed and the testimony from the expert with regards to what constitutes Munchausen syndrome. And that formed a possible basis for her motivation.
It wasn't very much of a question, who was going to be responsible, if anybody at all, in this case, was it?
Same thing here. If it's not Mr. Simpson, then we don't have anybody. The issue is, who did it? The issue is whether the person charged with this committed it.
And in Phillips, the question is whether or not she died of natural causes, natural progression of her illness, as opposed to maltreatment.
We've also cited other issues in court in People v. Robbins and People v. Poptoes (phonetic), where psychiatric testimony as to motive was permitted.
That's exactly what Dr. Dietz proposes to testify about. Dr. Dietz himself talked about the Davis case, the Polly Klaas case, where he was permitted to testify based on crime-scene analysis of whether the defendant had committed a certain act, and what his motive would have been for committing that act.
Dr. Dietz also testified that there were -- I forget the number -- he cited several cases where he had, in fact been permitted to testify may not be recorded decision but there are trial courts that allow that testimony besides the civil murder case cited it was an Atlanta case; the civil murder case of a South Carolina case; an Ohio case in which he had been allowed to testify on this exact same topic, as he said from the stand under oath. That's unchallenged testimony; he has been allowed to testify.
In fact -- and the defense has taken the position in their opening statements, Your Honor, that Mr. Simpson had no motive to kill; he never would have killed the mother of his children; Mr. Baker said he had no motive.
We obviously are not legally required to prove motive as a practical matter. He wants to put on evidence of motive; that's what Dr. Dietz is there for.
Wasn't this case where there's ample evidence on which a lay jury can look to ascertain whether there was motive and they don't need an expert to testify to matters of common experience with regards to the existence or nonexistence of whether it would appear you're offering this expert to give plaintiffs' version of their interpretation of what the evidence is with regards to motive. And in essence, you're having somebody whose credentials make a closing argument for you with regards to how they should review the evidence.
I'm going to come to a different conclusion than you do. I don't think that motives for homicides are a part of ordinary jurors' knowledge. They're certainly not part of mine I luckily never witnessed one, never been part of one, and I don't know what motivates people to murder.
I also, frankly, Your Honor, think this defendant is a different defendant than most defendants in cases like this.
Because of his celebrity status, many of the jurors feel like they know this person, feel like they know something about him. In most cases, the defendant is in court and the jurors know nothing about the defendant other than what they see in court.
We're going through a whole bunch of motions in limine in which the Court has already delineated what kind of evidence you're going to be able to offer. And you certainly are aware that you're going to be offering a considerable amount of evidence that the jury is not privy to.
So how do you say that?
I apologize, but I think it is. I think it is particularly important in this case with this particular defendant, and particularly with the position that the defense is taking, that there just was no possible motive for this man to do this; he wouldn't; there's no way he could have done this.
And this witness is capable of testifying, is qualified to testify, and has been allowed to testify that, in fact, what you see isn't necessarily what you get. People like this do have motives and can and are capable of killing.
And that is not, I think, Your Honor -- I think to be fair, that is not within the experience of the jurors. I think that we probably weeded out people who had direct contact with homicide.
With a murder, those were people who may have been not on the jury. I don't think these jurors do know what drives people to kill. They can imagine, you know, but this isn't a situation, you know, where the things you see in the movies, where a husband comes home and sees the wife in bed with somebody else, or they're trying to protect from immediate assault. This is something that I think is outside of the understanding of the ordinary juror.
They can benefit from Section 801. All we need to do, the testimony needs to be relevant and helpful to the jurors' understanding of the issues. And I don't think there really can be any doubt of that.
It has to be beyond the common experience of jurors. Unless people have been living in a vacuum for the totality of their lives, the motivations that -- based upon your motion in limine, that the jurors' going to be exposed to those, are not items that are out of the common experience of man.
Motivations for murder are. I don't think we have any jurors who have had a family member murdered or a close friend murdered. I think we asked those questions. I don't think we have anybody -- and frankly, I think that murder obviously is an extreme form of human behavior, as extreme as it gets, and it is not within the jurors' experience to know what drives somebody to do that. It's just not.
You see a lot of movies, you can read books.
If Dr. Dietz's testimony is being offered to prove that, based upon Dr. Dietz opinion as to motive, that you've made your case, I think we have a real problem, in conjunction with all the cases that both sides have cited.
We're not offering them as the have-all, end-all of our case; it's one more relevant piece of evidence in the Bledsoe case.
I'm really concerned with the analysis of cases you offer compared to the analysis in People_v._Bowker,_203_Cal.App.3d,_385 and People_v. Bledsoe,_36_Cal.3d,_236.
Your Honor, Bledsoe and Bowker -- Bowker talks about Bledsoe being a predictor. And we're not talking about prediction here.
I think that's essentially what you're trying to -- that's what you just finished talking to me about for ten minutes.
I don't know you realize it that's what you're talking --
I'm not talking about predicting what's going to happen. I'm saying you have a crime; you have to figure out what happened; that's very important. A distinction that the defense tries to muddy.
We have a completed crime here and we're trying to figure out what happened. We're not going forward and predicting what may happen in the future.
Bledsoe, Your Honor, the key distinction to Bledsoe, as I recall it, was that child abuse
syndrome -- child abuse syndrome when it disallowed the testimony because -- primarily because, if not solely, because the syndrome was developed for therapeutic purposes, not to identify whether somebody was abused. It was developed to help people who were identified as sufferers of child abuse to deal with it. And the court said that's not what you're trying to do here. We can't mix apples with oranges.
Dr. Dietz, as he testified, the crime-scene analysis, as well as the motives, he's doing it exactly as he uses it in real life, exactly how law enforcement, coroner, medical professionals use it in real life, to figure out who committed the crime, to help figure out who did it, to help identify the perpetrator. It's exactly how it's used in Bledsoe and Bowker.
There's a distinction. I think it's a proper distinction. It's right I decided because they're not applicable here because we are using the methodology in precisely the way it was meant to be used, which was to help to identify, or to narrow the range of people who could have committed this. That's the response on Bledsoe, Your Honor.
I think it's not that if it was a be-all, end-all, we wouldn't put all this evidence up and get him out and say who you do think did it. Simpson he's not even going to say what he said in his deposition. He's not going to say Simpson did it.
No. There's two parts of his testimony, two very distinct parts: The crime-scene analysis part, this simply looks like this was committed by somebody who was in a rage, as opposed to a burglary, drug hit, or any other kind of thing. This looks like somebody who was in a rage and had an extreme emotional reaction and attachment to one of the victims, probably Nicole.
He can determine that by, we didn't go into it all day, but by the evidence found at the scene, by the wound pattern, the nature and extent of the wounds.
The other -- and that's not saying Mr. Simpson. That's saying that I think it's clear that somebody like this.
Now, if it just so happens Mr. Simpson is the only person in the world with that, well, that's the facts; those are the facts. But he's not saying Simpson did it.
Secondly, the other opinion is quite distinct. I'm assuming Mr. Simpson is very -- assuming Mr. Simpson did it. I'm saying is there some motive that I see in all the information I have about the prior relationship between these people, and the other things that he mentioned that would be based on my experience of looking at thousands of homicides in my career, it would say that this person had a motive or a likely -- had a motive to commit this crime.
And the jury will be told he's assuming he did it. Obviously, it's their province. He's not going to mislead the jury in any way. He's not saying this infallible. He's saying this is my opinion. He very carefully -- he's going to be cross-examined -- lay out a foundation for his opinion.
Again, this is testimony that is admitted frequently, as Dr. Dietz testified, where he is not going to ever say, unless Mr. Leonard wants him to, that he thinks Mr. Simpson did it. It's not his job.
He's doing two very different things: One, assuming he did it, I can see a likely motive here based on my vast experience and knowledge; and two, the crime scene shows this is somebody who had an emotional attachment, was in a rage against Nicole.
And that's it. And it's that simple. And it goes no further than that.
The jury is certainly capable. We have a very intelligent jury here. This jury certainly is capable of taking that information for whatever it's worth; it will be subject to rigorous cross-examination; and they can weigh it and everything.
I think everything that Mr. Leonard has brought up goes to the weight of that testimony. It's certainly admissible; it's relevant testimony; and if the jury wants to discard it, they can discard it. It will be shown for exactly what it is, nothing more, nothing less.
I did want to make sure, Your Honor, we did have a footnote. Couple parts of his testimony may be offered in rebuttal, beyond what we -- but I thought we'd save that for later. We didn't even talk about it today. That's his analysis of Mr. Simpson's prehomicide and posthomicide demeanor. That would be rebuttal, depending on what they put on in their case, Your Honor. We weren't intending to address that today.
With respect to Dr. Dutton, again from the completely different point of view, Dr. Dietz is a forensic psychiatrist. You have heard what he does.
Dr. Dutton is a research psychologist; he's not even going to opine as to whether the factors are present here. He's going to opine, look, this is what I do, I've been doing this for 23 years; I'm good at this. I wrote books on this. People ask me to edit journals on this. I've read. I'm familiar with large amounts of research on this. People have done empirical studies and then I share good research methodologies. These are factors present in a spousal homicide: Boom, boom, boom, boom.
Again, helpful to the jury to try to analyze whether, in fact, these murders were a spousal or intimate homicide.
Again, not even close to representation of some infallible, scientific, foolproof, scientific test. It's one man's opinion, as well as it's one man's just -- really, disclosure of what the research out there shows, and there is a general consensus of the research that these are the factors generally accepted in the field that he testified to.
And the jury can take that, and again, they can take it for what it is, and their reaction to it, and go to the weight of it. But it's beyond me that it's not relevant; it certainly can help them understand these crimes.
And Dr. Dutton can say when you have these factors present, the research shows that these are factors that are characteristic with spousal homicide. The jury can decide whether those factors are present. The jury can also decide whether Dr. Dutton is full of hot air. It's up to them. But he's certainly qualified to render his opinion. He knows the material, and he would be offering this to help the jury analyze the evidence in the case.
And certainly, that's clearly something that would be far beyond the understanding of the jurors, as to what the characteristics are of spousal homicide. There's no way they could possibly know that without all the research Dr. Dutton has done.
Thank you.
Your Honor, just very briefly.
I think that, despite Mr. Gelblum's very brave attempt to characterize this evidence as something other than profiling, that's exactly what it is. Both of the witnesses were very candid about that. That's precisely the kind of evidence that has been found to be inadmissible time and again, for a very important reason.
And that is, that it does invade the province of the jury, particularly in the case of Dr. Dietz, where he quite candidly admits that he simply assimilates all of this information, decides for himself on criteria that we could never fathom what is true and what isn't, and then sort of pontificates to the jury about his opinion as to what he believes and what he doesn't, and then applies it to a set of facts to the case, and somehow at the end of this process, renders an opinion that -- basically that Mr. Simpson did it because he had the motive to do it.
As he said, again, in his deposition, as I pointed out, he's basically trying to tell this jury that Mr. Simpson did it because he's the kind of person that would do it.
And we obviously know that that is an absolute violation of basic principles in our system of juris prudence, which is that if it's a tort or a crime, the person that needs to be found liable or guilty of committing the crime not of being someone who would commit the crime.
Propensity is an absolute; it's something that is absolutely barred and inadmissible. That's precisely what Dr. Dietz is doing.
I also find it curious that Mr. Gelblum, on the one hand, says the jury is intelligent enough to try to pick through what I found to be a little bit confusing testimony by Dr. Dietz, in particular, and try to figure out what is accurate and what isn't, and what they should believe and what they shouldn't, and yet is not intelligent enough and doesn't have the common sense that we all have to try to apply the facts, not opinions, but the facts that Your Honor will permit them to elicit with regard to motive, whether it be the prior relationships of the parties or activities of Mr. Simpson, so forth and so on. I find that to be a little bit of talking out of both sides of his mouth.
I think in a way, Dr. Dutton's testimony is more dangerous, if you will, and I think the court in Bowler stated that --
Bowker. Excuse me.
But on page 3 of our memorandum or our brief, it was precisely this situation where they tried to put on an expert, just to throw out the bare bones of the syndrome, without applying it to the facts.
And the Court said while the improprieties in the admission of this type of evidence is clear as to where the expert testimony applies this syndrome to the facts of the case -- and I'm paraphrasing -- in fact, there may be more danger -- this is a quote -- "where the application is left for the jury because jurors' education and training may not have sensitized them to the dangers of drawing predicted conclusions."
And I think, again, I think that Dr. Dietz's testimony is clearly inadmissible under Bledsoe and Bowker, and in a number of other cases in other jurisdictions that we've pointed out.
Two Ds.
Dr. Dietz is clearly inadmissible.
Dr. Dutton, on the other hand, it's hard for me to understand how his testimony is relevant. If they just throw out, put them on the stand, throw out the syndrome, he says -- again he said a couple of times, as I pointed out, that he apparently isn't in a very good position to compare homicides.
I found that strange in his deposition when he responded to my questions, and yet, he's going to sit on the stand and just throw out the pattern for the jury, leaving them to their devices.
Now, obviously, that puts us in the position, Your Honor, of calling a counter-expert and, you know, if we have to, we will. And we'll -- you know, this will extend the trial, I think. You have -- you have a -- certainly have the power to limit testimony, for no other reason than it's really not going to be that helpful for the jury; it could confuse the jury; and it's going to extend the trial.
So I think both the Dutton and Deitz testimony is inadmissible.
I think that the Deitz testimony has the additional infirmation that he's totally usurping the power and the duty of the jury by, you know, basically telling them, oh, I thought about all these things; I weighed this evidence and that evidence or this report and that report, and this deposition, many, many of which are going to be inadmissible. He's looked at a whole bunch of material.
I can't imagine that half of it is going to actually end up on the witness stand, or in admissible exhibits. And he's going to sit up there and tell the jury what he believes. He's the expert. He believes this witness but not that witness.
That evidence, that can't be admissible that has never been admissible in a court of law. They haven't cited one case where it is.
As I understand plaintiffs' offer of proof, they're going to offer Dr. Dutton to show simply that a spousal homicide may have A, B, C, D, E, F, G characteristics, period.
I don't know how to put it any more succinctly than the Court did in Bowker.
If you look at page 3 of our brief, that's precisely what was attempted in Bowker. It was found to be improper. And the reason was that there may be more danger where the application of the syndrome is left for the jury, because jurors' education and training may not have sensitized them to the dangers of drawing predicted conclusions.
Didn't the court have a problem in Bowker with the child sexual abuse accommodation syndrome itself?
Didn't the court feel that the expert who formulated this child sexual abuse accommodation syndrome was not able to support this syndrome or pattern with sufficient foundation?
Your Honor, the expert in that case didn't even try to apply it to the case. He just sat up there like they want Dutton to do; he didn't apply it to the case. He just described precisely -- he did the precise thing that Dutton wants to do; and that is, to sit on the stand and say, well, I have a certain pattern in my head. It may not comport with the pattern in the literature, and here it is. And, you know, knock yourself out, to the jury. You apply it.
I mean, that's something that doesn't belong in a court of law. That's exactly what they're doing here.
I thought the Court was interested in Bowker. I don't know where Mr. Leonard started quoting in his brief. I suspect it was, "While the impropriety."
Court look at the previous paragraph, which is really the relevant paragraph, which says Bledsoe must be read:
"It is one thing to say that child abuse victims often exhibit a certain characteristic or that a particular behavior is not inconsistent with a child having been molested. It is quite another to conclude that where a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused. The former may be appropriate in some circumstances; the latter -- given the current state of scientific knowledge -- clearly is not."
And then the paragraph talking about the latter situation, which is not what Dr. Dutton said, the latter situation being where the testimony is, if a child meets certain criteria, we can predict with a reasonable degree of certainty that he or she has been abused.
That's not what Dr. Dutton did. Dr. Dutton says the former, which is what the Court says is okay, which is that victims of spousal homicides often exhibit these characteristics. That's exactly what he told you he is going to say. Under Bowker, this testimony is admissible.
Secondly, Mr. Leonard argued that we just cannot be permitted to say he's the kind of person who did it.
They're saying he's not the kind of person who did it. We've got to be able to respond to say, they're wrong; yes, he is, at least in rebuttal.
They're going to put that on in their case; I guarantee it. They've already said it in opening statement, he's not the kind of person who can do it.
We're entitled to prove he is the kind of person who can do it. That's part of what the testimony is about.
And as to the relying on inadmissible evidence, the evidence code clearly says experts can do that; they can rely on inadmissible evidence, as long as it's the kind of evidence that's relied on by experts in the field.
I think you listed each of those experts. They were relying on material that is typically relied on by experts in their field.
Thank you.
Your Honor, if what he said -- this is double talk. What he's saying is that there are certain factors that exist in spousal homicides. I mean, obviously, the factors existed before the homicide occurred. If that isn't predictive, what's the relevance of putting somebody up on the stand to talk about factors that exist if there isn't the notion of predicting?
In other words, retroactively predicting. Why else would he be up there?
I mean, he's saying that these factors exist. And when these factors exist, we can assume or predict, whatever word you want, that ultimately, there will be a homicide. That's what this is all about; it's prediction. It's nothing else but prediction. Otherwise, it's not relevant. Doesn't make any sense.
I don't -- I haven't seen one case in which Dr. Dietz's type of testimony has been offered to establish identity. Not one.
you're offering this expert to give plaintiffs' version of their interpretation of what the evidence is with regards to motive. And in essence, you're having somebody whose credentials make a closing argument for you with regards to how they should review the evidence.
I think that hits the nail on the head, the issue on the head.
I think that, despite Mr. Gelblum's very brave attempt to characterize this evidence as something other than profiling, that's exactly what it is. Both of the witnesses were very candid about that.
He's basically trying to tell this jury that Mr. Simpson did it because he's the kind of person that would do it.