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📄 Sidebar — Monday, January 13, 1997

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TRIAL

▲ Day 40 of 57

◀ Cross-examination of O.J. Simpson (part 1) Redirect examination of O.J. Simpson (part 2) ▶

Examiner: Examiner
Date: Monday, January 13, 1997 • Utterances: 36

Petrocelli sought to cross-examine OJ Simpson about his infidelity and Nicole's post-1989-beating writings describing the abuse and his unfaithfulness, arguing Simpson opened the door by presenting himself as a devoted, loving husband with sterling character. Baker objected that infidelity was barred by motion in limine #3 and that Nicole's writings were inadmissible hearsay. Judge Fujisaki reviewed the prior transcript, concluded Simpson had placed his character at issue, and overruled the objection — allowing Petrocelli to proceed.

# 1 MR. PETROCELLI:

I have --

# 2 MR. BAKER:

This is the subject of a motion --

# 3 MR. PETROCELLI:

I'll cite chapter and verse.

# 4 THE COURT:

Approach the bench. (The following proceedings were held at the bench, with the reporter.)

# 5 MR. PETROCELLI:

First of all, Your Honor --

MR. P. BAKER: Motion in limine number 3.

# 6 MR. PETROCELLI:

-- he put this witness on. And I intend -- and he had this witness say that he never even attempted to lie. I intend to show that this witness has been lying about everything important in this case. One of the issues he had him discuss was how he had a great relationship, good relationship with -- loving relationship with Nicole, specifically during the time frame of 1985 to 1987; and then some other time frames, he was engaged in a longstanding affair, was a cause of great animosity between him and his wife, and led to this beating in 1989 -- and I have writings on this --

# 7 THE COURT:

Would you keep your voice down.

# 8 MR. PETROCELLI:

I'm sorry. I have writings of her that I intend to get into, as well, that will reflect this. It shows that, A, he was lying; and B, directly undercuts the direct testimony elicited, that he had a great, loving relationship throughout his marriage.

# 9 MR. BAKER:

Your Honor, this is total collateral issues. Let me say two things: One, that on motion in limine number 3 the issue of his infidelity was raised, and granted by you. Number 2, that, if they go back and try to get in these diaries, that is total hearsay of Nicole Brown Simpson. These diaries -- these diaries were made because she was told by her lawyers to make those diaries to upset the prenuptial agreement after he had, in fact, written that document that says that he will not -- he will give her half of his property; rip up the prenuptial agreement. And this is the rankest of hearsay.

# 10 THE COURT:

Just a minute.

# 11 MR. PETROCELLI:

I'm not referring to any of these diaries he's talking about, Your Honor.

# 12 THE COURT:

What -- which writings are you talking about?

# 13 MR. PETROCELLI:

I'm talking about writings that she made after the 1989 beating in which it describes how Mr. Simpson was consistently unfaithful, beat the shit out of her, beat her up in 1989, directly undercuts what the testimony that he was --

KEY QUOTE

# 14 THE COURT:

How is that admissible?

# 15 MR. PETROCELLI:

It shows her state of mind as to the nature of this relationship which he elicited on direct examination.

# 16 THE COURT:

Okay.

# 17 MR. PETROCELLI:

Okay. And these have nothing to do with divorce. And they were written long before they were separated. He's talking about something totally different. He cannot put this witness on in front of this jury to describe this loving relationship, paint this wonderful picture, say he was this -- this great guy, he never lied, and then deprive me of the right to cross-examine him, when his credibility is the single most crucial issue in the case. Your motion in limine number 3 specifically said granted if they raise these issues.

# 18 MR. BAKER:

I didn't raise the issue of infidelity.

# 19 MR. PETROCELLI:

Of course, you did.

# 20 THE COURT:

Erin, give me the left-hand binder. (The Clerk complies, hands binder to the Court.)

# 21 THE COURT:

Thank you. (Pause for the Court to review binder.)

# 22 THE COURT:

Okay.

# 23 MR. PETROCELLI:

You have the transcript?

# 24 THE COURT:

I need to see a transcript. (Mr. Petrocelli hands transcript page to the Court.)

# 25 THE COURT:

He talks about his Hall of Fame speech, how character is everything to this man. And basically, he spent three hours talking about his character.

KEY QUOTE

# 26 MR. BAKER:

Your Honor, I -- (Court reviews page 19 of September 16, 1996 transcript.)

THE COURT REPORTER: Mr. Petrocelli, what date was that from, that page of transcript?

# 27 MR. PETROCELLI:

I think it was the 17th or 16th of September.

# 28 THE COURT:

Go ahead.

# 29 MR. BAKER:

I didn't raise the issue of infidelity. Under Evidence Code 1227, I can bring up hearsay, but they cannot bring up hearsay.

# 30 MR. PETROCELLI:

That's absolutely wrong.

# 31 MR. BAKER:

Let me finish. And this -- this is collateral issue. And they've raised a million collateral issues in this case. But he has to cross-examine him on the issues that I raised. And I didn't raise infidelity. They're already had two and a half days cross-examining him, and gone into everything. And now, they have to narrow their cross-examination to the exact issues that were raised in this. They can characterize it as character or anything else they want. And if that were what I -- what I went on and examined him on that, then there is no categorization; there's no limit to what they can raise. And that's what their argument is. It's a fallacious argument. They can't keep this man up there for six days.

# 32 MR. PETROCELLI:

Your Honor, under 1227, he's entitled to elicit admissions of -- statement of decedent. As an exception to the hearsay rule, we are able to probe fully the same acts, durations, and occurrences under 356. You can't have a one-way street on eliciting testimony about conversations and events. I mean, that's never been the law of this state.

# 33

THE COURT: All right. The objection is overruled. I think the issue of character of the defendant has been put into issue by the defendant's testimony. (The following proceedings were held in open court, in the presence of the jury.)

# 34 Q:

(BY MR. PETROCELLI) During the course of your relationship with Nicole, Mr. Simpson, you were unfaithful to her; true?

# 35 MR. BAKER:

Objection. 352 motion in limine number 3.

# 36 THE COURT:

Overruled.

Temperature

heated

Key Quotes (5)

Daniel Petrocelli

I intend to show that this witness has been lying about everything important in this case.

Frames the entire cross-examination strategy — Simpson's credibility, not just specific facts, is the target.

Daniel Petrocelli

writings that she made after the 1989 beating in which it describes how Mr. Simpson was consistently unfaithful, beat the shit out of her, beat her up in 1989

Describes the content of Nicole's writings Petrocelli wants admitted — graphic domestic violence detail directly contradicting Simpson's 'loving relationship' testimony.

Judge Hiroshi Fujisaki

He talks about his Hall of Fame speech, how character is everything to this man. And basically, he spent three hours talking about his character.

The judge's own characterization of Simpson's direct testimony signals he agrees the door has been opened.

Judge Hiroshi Fujisaki

The objection is overruled. I think the issue of character of the defendant has been put into issue by the defendant's testimony.

The ruling — Simpson's own direct examination opened the door to full character cross-examination, including infidelity and abuse.

Robert Baker

these diaries were made because she was told by her lawyers to make those diaries to upset the prenuptial agreement

Baker's attempt to taint Nicole's writings as litigation-motivated — though Petrocelli clarifies he's referring to different documents written long before the separation.

Evidence (3)

Informal

Nicole Brown Simpson's writings made after the 1989 beating describing Simpson's infidelity and physical abuse

Petrocelli seeks to introduce; Baker argues hearsay; court allows cross-examination to proceed

Informal

Transcript page from September 16 or 17, 1996 (motion in limine hearing) — page 19 reviewed by court

Handed to judge to review scope of prior ruling on infidelity issue

Informal

Motion in limine #3 regarding infidelity evidence

Disputed — Baker claims it bars infidelity evidence; Petrocelli argues it was 'granted if they raise these issues,' which Simpson did

Notable Exchanges (3)

Daniel Petrocelli•Robert Baker

Sharp dispute over whether Baker 'raised the issue of infidelity' during direct examination. Baker flatly denies it; Petrocelli says 'Of course, you did' — the judge sides with Petrocelli by noting Simpson spent three hours on his character.

heated

Robert Baker•Daniel Petrocelli

Baker argues Nicole's diaries were fabricated at her lawyers' direction to attack the prenuptial agreement; Petrocelli clarifies he's referring to entirely different writings made long before the separation, deflating Baker's hearsay attack.

strategic

Daniel Petrocelli•Judge Fujisaki

Petrocelli invokes Evidence Code 356 (rule of completeness) and 1227 to argue Baker cannot elicit one-sided testimony about events and then bar counter-evidence — judge accepts the logic.

strategic

Credibility Attacks (1)

⚔ O.J. Simpson

prior inconsistent conduct / character impeachment

Petrocelli seeks to use Nicole's post-1989-beating writings and infidelity evidence to demolish Simpson's direct-testimony portrayal of a loving, faithful marriage — arguing Simpson lied about 'everything important in this case.'

Objections

2 objections (0 sustained, 2 overruled)

Proceeding 8784 • 36 utterances

Civil Trial

Department 103