📄 Sidebar: evidence foundation — Thursday, October 31, 1996
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Sidebar: evidence foundation

Date: Thursday, October 31, 1996 • Utterances: 101
The defense and plaintiffs' counsel argued at the bench over the evidentiary foundation for testimony that keys found in OJ Simpson's bag fit a lock made from Nicole Brown Simpson's house key. Baker challenged the foundation as inadequate and potentially misleading, arguing that any generic Schlage-type key might fit such a lock. Judge Fujisaki ruled that a locksmith must testify before the key-fitting evidence could be admitted, and allowed Detective Lange limited foundational questions only.
1 (The following proceedings were held at the bench, with the reporter.)
2 MR. BAKER:

These keys, when they say they fit the condominium, there's no foundation for this question, and they know it, because the keys had been changed by the time they got through all the -- the locks had been changed, keys.

3 THE COURT:

Just a minute. What is your foundation?

4 MR. MEDVENE:

The foundation is this, sir: Detective Lange determined that Nicole Brown had given a key to her friend, Cora Fischman; that with that key, he had a lock made; that the keys found in Mr. Simpson's bag opened the lock that was made from -- from that key, and that there was --

5 THE COURT:

Say that again.

6 MR. MEDVENE:

Okay.

7 THE COURT:

From the beginning.

8 MR. MEDVENE:

Okay.

Detective Lange made a determination --

9 THE COURT:

Wait a minute. I don't like that word.

10 MR. MEDVENE:

All right. Nicole Brown had given the key to her condominium to Cora Fischman.

11 THE COURT:

He's going to testify to that.

12 MR. MEDVENE:

We can put that in through Detective Lange, that he received a key from Cora Fischman, that he took that key and had a lock made; that that key worked; that he then took the keys found -- that Mr. Simpson had, and those keys worked that lock.

13 MR. BAKER:

Your Honor, the problem is --

14 THE COURT:

Wait. I'm trying to digest this. Who's going to testify that Nicole Simpson gave the key to Cora Fischman?

15 MR. MEDVENE:

Cora Fischman can testify to that.

16 THE COURT:

Is she available?

17 MR. BAKER:

Sure.

18 MR. MEDVENE:

Yes.

19 THE COURT:

Okay.

20 MR. MEDVENE:

I'm saying she will. It's in her deposition.

21 THE COURT:

Excuse me?

22 MR. PETROCELLI:

I believe it's in her deposition. I can have that checked out.

23 MR. MEDVENE:

That she supplied the key; Detective Lange took the key, because before the 17th, the lock was changed, so Detective Lange took the key that Cora Fischman says Nicole Brown gave to her and had a lock made; that the key worked that lock.

They then took two of the keys they found in Mr. Simpson's bag, and they both worked the lock. And that lock was the lock for the front gate and the front door.

24 MR. BAKER:

Your Honor, also Barry Scheck's house key fit that lock. If they're going to put it on, I want the lock here and I want the full foundation, because this is a sham, and that's why it wasn't used in the first trial. And for them to say that it only would fit that key is a quantum leap and isn't what happened.

KEY QUOTE
25 MR. PETROCELLI:

We're not saying only but it fit the lock.

26 MR. BAKER:

Everybody -- when they made that demonstration, everybody who had a key that looks like this Schlage key, it fit. So I object to this, and require them to -- request the Court to require them to go point by point through this.

It is a quantum leap to get the jury to believe that only the key that was in Mr. Simpson's bag would fit that lock.

27 MR. MEDVENE:

We don't think we have the obligation to say only -- what we're showing is Mr. Simpson had two keys in his bag that fit the lock to Nicole Brown's house; that's all we're saying.

28 MR. BAKER:

If that were the case, this is not the lock of Nicole Brown's house; it's a lock they had made. Now they have to put on the foundation for that.

29 THE COURT:

Do we have a locksmith?

30 MR. BAKER:

Yeah, put him on.

31 MR. PETROCELLI:

The locksmith Lange used to make the lock from Cora's key.

32 MR. LEONARD:

I think he's on the --

33 THE COURT:

Excuse me?

34 MR. LEONARD:

I think there was.

35 MR. KELLY:

Think there was a locksmith.

36 MR. KELLY:

There was a locksmith, like a locksmith that changed the locks at Detective Lange's department with respect to creating the original, that lock.

37 THE COURT:

You may examine, subject --

38 MR. BAKER:

Judge -- Judge, this is foundation.

39 THE COURT:

If they're going to bring the locksmith --

40 MR. BAKER:

No, no, no.

41 THE COURT:

It doesn't make any difference --

42 MR. BAKER:

It makes a lot of difference, because it gives an implication to this jury that Mr. Simpson had a key that fit the lock.

I want them to put it on in the proper order. You keep telling me to put things on in the proper order.

43 THE COURT:

You want what?

44 MR. BAKER:

That this --

45 THE COURT:

You're --

46 MR. BAKER:

All right.

They say it fit; this key goes into this lock, and this is Nicole Brown's lock.

It isn't Nicole Brown's lock; it is a lock they made. Have them put it in here, the locksmith. They can take the key that's in evidence and demonstrate that. This is such a great deal; put it right in the lock and say, this key fits this lock.

47 THE COURT:

Okay.

48 MR. BAKER:

And do that. They don't need it if this is just trying to get out of him what he's not -- doesn't have any personal knowledge and everything he -- if everything he did is viewed and all his testimony is hearsay, and let him do it the right way.

49 MR. MEDVENE:

He did it all himself and watched it.

50 THE COURT:

Did what?

51 MR. MEDVENE:

He got the key from Cora Fischman. He caused the lock to be made from that key, and he then tried the keys found in Mr. Simpson's bag in that lock, ascertaining that those keys opened that lock.

If Mr. Baker wants to put on testimony --

52 THE COURT:

Where is the locksmith?

53 MR. MEDVENE:

We can try to find a locksmith, Your Honor. We can.

54 THE COURT:

I don't think I'm going to let this evidence come in without a locksmith.

KEY QUOTE
55 MR. PETROCELLI:

Can we have the witness who the locksmith is? I think it's a locksmith that worked under his direction.

56 MR. BAKER:

They can ask anything they want. They take this with all the --

57 THE COURT:

Well ask him.

58 MR. MEDVENE:

We'll ask him what he knows of the locksmith, if the locksmith worked under his supervision or not.

59 MR. BAKER:

Judge, you can build a lock every key will fit.

KEY QUOTE
60 MR. PETROCELLI:

I think it was done directly under his supervision.

61 MR. BAKER:

I don't care. The work that was done --

62 THE COURT:

What does this witness know about locks?

63 MR. PETROCELLI:

He was in the investigation.

64 MR. MEDVENE:

To determine whether or not Mr. Simpson had a key to get into the house.

65 THE COURT:

Mr. Baker is articulating an objection that I see. The objection is this: The objection is that how can this witness testify that this locksmith made a lock that fit the particular key that works Nicole's gate?

66 MS. BLUESTEIN:

Can I add one fact that I just verified the deposition of Cora Fischman. Cora Fischman describes a key that belonged to, quote, "anyone." She had specific knowledge that Nicole Brown Simpson --

67 THE COURT:

Then, fine. Then she will testify.

68 MR. BAKER:

That's what she would testify.

69 THE COURT:

Same objection to this witness?

70 MR. MEDVENE:

We can do it that way.

May we first ask this witness if he observed the locksmith? If he didn't, we understand where we have to go.

If he did -- if he did observe the locksmith make the lock from the key and he then took that lock and tried the key, it seems to me, he has as much personal knowledge.

71 THE COURT:

Who was the lock -- where was it changed?

72 MR. PETROCELLI:

Mr. Brown changed the locks around June 15, 16, 17. Right after Nicole's death, he changed the locks.

73 THE COURT:

Nobody checked the key at this time?

74 MR. MEDVENE:

Not before he changed the locks.

75 MR. PETROCELLI:

The police didn't know he was doing it. He did it on his own. Mr. Brown did it on his own.

All he had were these keys to her house; they didn't have the locks. So they had the locksmith --

76 THE COURT:

My suggestion is, you bring the locksmith in.

77 MR. MEDVENE:

May I ask Your Honor if the --

78 THE COURT:

If the locksmith testifies it's same key that Cora Fischman had, fine. You can argue the logical conclusion from that.

79 MR. MEDVENE:

I don't want to violate the order.

May I ask him one question, which is: Was he present when the locksmith did whatever he did. If he wasn't, that will be the last question.

80 THE COURT:

What difference did it make?

81 MR. MEDVENE:

If he observed the locksmith make the lock and he physically took the lock, then the foundation is, he has personal knowledge if he's physically there when the locksmith is making the lock.

82 THE COURT:

I want him to testify that --

83 MR. MEDVENE:

I don't know if he was.

84 THE COURT:

Excuse me.

85 MR. MEDVENE:

I don't know if he was there when the locksmith made the lock.

86 THE COURT:

Why don't you know?

87 MR. MEDVENE:

Well, because we thought we could put this in, but we'll ask him if he was there. We think -- we think we can proceed.

88 MR. BAKER:

Your Honor, you know how you have those little locks on the bathroom door that you can stick any stick into, any pen or anything else, and you can pop them open? Or you can put the key that comes -- that we put on the nail above and lock our kids out of there. You can make a lock so that you can open it with any key in the world.

That's what they did. That's what the point is, you don't have to -- you don't have to know that. The point is that if that -- that's the foundation that they need to put on before they ask him any questions about the lock, that this lock only fits that.

KEY QUOTE
89 THE COURT:

I think he can lay some foundation.

90 MR. PETROCELLI:

Lay a little more foundation.

91 THE COURT:

Not with this witness.

92 MR. PETROCELLI:

What the locksmith is going to say is that he got a key from Detective Lange.

93 THE COURT:

We have to hear the locksmith say that.

94 MR. PETROCELLI:

The locksmith didn't go to Cora Fischman and get a key; he got a key from Detective Lange and made a lock to fit that key. That was the extent of his participation.

95 THE COURT:

Fine; he can testify whether it's one of those locks that --

96 MR. MEDVENE:

That anybody can open?

97 THE COURT:

Yeah.

98 MR. PETROCELLI:

Okay.

99 MR. MEDVENE:

I guess we should just ask Detective Lange if he gave a key to a locksmith, so we have that part of foundation.

100 THE COURT:

You can do that.

101 (Jurors resume their respective seats.)

Temperature

tense

Key Quotes (4)

Robert Baker
Also Barry Scheck's house key fit that lock. If they're going to put it on, I want the lock here and I want the full foundation, because this is a sham, and that's why it wasn't used in the first trial.
Baker invokes the criminal trial's rejection of this evidence and claims even a defense attorney's key fit the fabricated lock, directly attacking the probative value.
Robert Baker
You can build a lock every key will fit.
Concise statement of the core evidentiary problem — the lock was constructed after the fact and may not reliably replicate Nicole's original hardware.
Robert Baker
You know how you have those little locks on the bathroom door that you can stick any stick into, any pen or anything else, and you can pop them open? ... You can make a lock so that you can open it with any key in the world.
Baker argues the fabricated lock has no evidentiary value without expert testimony establishing it was made to the same specification as Nicole's original lock.
Hiroshi Fujisaki
I don't think I'm going to let this evidence come in without a locksmith.
The judge's ruling — key-fitting evidence is conditionally excluded until proper foundation is laid through locksmith testimony.

Evidence (4)

Informal
Keys found in OJ Simpson's bag
foundation challenged for testimony that they fit the fabricated lock
Informal
Lock fabricated by locksmith from key provided by Cora Fischman
admissibility disputed; locksmith testimony required before admission
Informal
Key given by Nicole Brown Simpson to Cora Fischman
discussed as source material for fabricated lock; Fischman deposition referenced
Informal
Cora Fischman deposition
cited by Bluestein to establish that Fischman had personal knowledge Nicole gave her the key

Notable Exchanges (3)

Robert BakerEdward MedveneHiroshi Fujisaki
Baker argued the key evidence is a 'sham' that was excluded from the criminal trial, noting Barry Scheck's own key fit the same lock. Medvene attempted to walk through the chain of custody step by step. Fujisaki ultimately sided with Baker's foundation concerns and required locksmith testimony.
strategic
Hiroshi FujisakiEdward Medvene
Fujisaki repeatedly interrupted Medvene's foundation explanation, asking him to start over multiple times, revealing genuine confusion about the chain of custody for the lock.
procedural
Ms. BluesteinHiroshi Fujisaki
Bluestein interjected to report she had just verified Cora Fischman's deposition, noting Fischman described the key as belonging to 'anyone' but had specific knowledge Nicole gave it to her. Fujisaki cut her off and directed Fischman to testify in person.
strategic

Credibility Attacks (1)

⚔ Detective Lange
lack of personal knowledge / hearsay
Baker argued Lange lacked firsthand knowledge of the locksmith's work and that all his testimony on the lock would be hearsay unless he personally observed the lock being made.

Objections

4 objections (1 sustained, 0 overruled)
Proceeding 8094 • 101 utterances
Civil Trial
Department 103
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📂 OCT 31, 1996 📄 Sidebar: evidence foundation
OCT 31, 1996 KRT DvH TD