📄 Sidebar: exhibit foundation — Friday, November 8, 1996
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C:\DEPT103\CIVIL\1996\NOV\8\SIDEBAR-EXHIBIT-FOUNDATION.DOC
TRIAL
▲ Day 12 of 57

Sidebar: exhibit foundation

Date: Friday, November 8, 1996 • Utterances: 16
At sidebar, Baker objected to plaintiff's counsel Medvene using an expert witness's own book and photos on direct examination, citing Evidence Code 721(b), which limits use of an expert's own writings to cross-examination only. Medvene attempted to justify the photos as foundational support for the expert's conclusion about fingernail marks on Simpson's finger, but Judge Fujisaki pressed him on the foundation for the photo and Medvene admitted he didn't even know if the witness had taken it. The sidebar ended inconclusively with a recess.
1 (The following proceedings were held at the bench:)
2 MR. BAKER:

Evidence Code 721, he can't use on direct, his book and his photos. He can't do that under the Evidence Code 721. He can only be cross-examined.

KEY QUOTE
3 MR. MEDVENE:

Well, they're in the exhibit book. They've been there for a while. There's been no objection to them and we're using them to show that he's going to compare the fingerprint marks with the ones that he -- in the book or that he's collected with the fingernail to support his conclusion that the fingernail marks, that the marks on Mr. Simpson's finger are fingernail marks.

4 MR. BAKER:

Can't do it, Your Honor. You can't use -- you can't use your own writings to support it. He can only be cross-examined on his own writings under 721(b) of the Evidence Code.

In fact, the Evidence Code, the fact they're in the evidence book is meaningless.

5 THE COURT:

What's the foundation for the photo?

6 MR. MEDVENE:

Going to lay the foundation that he's taken the photo. He's aware of the photo and all he wants to do, if it's permissible, is compare the photo.

7 THE COURT:

What's the foundation for the photo?

8 MR. MEDVENE:

His knowledge of the taking of the photo and the source of the marks.

9 THE COURT:

Excuse me. Did he take the photo?

10 MR. MEDVENE:

I'll have to ask him.

11 THE COURT:

You don't know, do you?

KEY QUOTE
12 MR. MEDVENE:

I really don't, Your Honor.

KEY QUOTE
13 THE COURT:

Okay.

14 (The following proceedings were resumed in open court in the presence of the jury:)
15 THE COURT:

Ten minute recess, ladies and gentlemen. Don't talk about the case, don't form or express any opinions.

16 (Jurors resume their respective seats.)

Temperature

tense

Key Quotes (3)

Robert Baker
Evidence Code 721, he can't use on direct, his book and his photos. He can't do that under the Evidence Code 721. He can only be cross-examined.
Identifies the specific evidentiary rule Baker is invoking to block plaintiff's direct use of the expert's own publications.
Hiroshi Fujisaki
You don't know, do you?
Fujisaki catches Medvene unprepared on a basic foundational question — the attorney didn't know whether his own witness took the photo he was trying to introduce.
Edward Medvene
I really don't, Your Honor.
Candid admission of unpreparedness on foundation, effectively collapsing his argument for admitting the photo.

Evidence (2)

Informal
Expert witness's published book containing fingerprint/fingernail mark photos
challenged — Baker argues inadmissible on direct under EC 721
Informal
Photo(s) comparing marks on Simpson's finger to fingernail marks
challenged — foundation not established; Medvene unsure who took the photo

Notable Exchanges (2)

Hiroshi FujisakiEdward Medvene
Fujisaki pressed Medvene twice on who took the photo; Medvene first hedged then admitted he didn't know, undermining the foundation for the exhibit entirely.
revealing
Robert BakerEdward Medvene
Baker invoked EC 721(b) to block use of the expert's own writings on direct; Medvene argued the exhibits had been in the exhibit book without objection, which Baker dismissed as meaningless.
strategic

Objections

1 objections (0 sustained, 0 overruled)
Proceeding 8211 • 16 utterances
Civil Trial
Department 103
⚖️ Start
📂 NOV 8, 1996 📄 Sidebar: exhibit foundation
NOV 8, 1996 KRT DvH TD