Cross-examination of E.J. Flammer

📄 Cross-examination of E.J. Flammer — Tuesday, January 14, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\14\CROSS-EXAMINATION-OF-E-J-FLAMM.DOC

TRIAL

▲ Day 41 of 57

◀ Redirect examination of E.J. Flammer Redirect examination of Ms. Gardner ▶

Witness: E.J. Flammer
Examiner: Robert Baker
Called by: Plaintiff • Date: Tuesday, January 14, 1997 • Utterances: 72

Kelly briefly rehabilitated Flammer on redirect, establishing he had no objection to making his photo negatives available to Simpson's defense team and had instructed his attorney accordingly. Baker then launched a pointed recross, exploiting a contradiction: Flammer had testified that morning he didn't know if defense counsel had contacted his attorney, yet now claimed he'd told his attorney to cooperate with them. The session ended with a massive batch of Plaintiffs' photo exhibits (2295–2355) admitted into evidence, and defense marking Flammer's declaration as Defendants' Exhibit 2356.

# 1 A:

If that's what happens.

# 2 Q:

You bet.

# 3 MR. BAKER:

Thanks. REDIRECT EXAMINATION BY

# 4 Q:

Couple minutes, Mr. Flammer. First of all, back in 1993 and '94, would it be fair to say that Mr. Simpson was a very popular figure up in Buffalo?

# 5 A:

Sure.

# 6 Q:

Was he a popular figure within the Bills organization?

# 7 MR. BAKER:

Objection, outside the scope.

# 8 THE COURT:

Sustained.

# 9 Q:

(BY MR. KELLY) Were you familiar with a lots of the people in the Bill's organization in 1993, 1994?

# 10 A:

Yes.

# 11 MR. BAKER:

Outside the scope.

# 12 THE COURT:

Sustained.

# 13 Q:

(BY MR. KELLY) Mr. Flammer, did you have any discussions with your attorney regarding making those negatives available to the defense as well as us in this particular case?

# 14 A:

Yes, I did.

# 15 Q:

And did you have any objection at any time to making those negatives available to Mr. Simpson's defense team?

# 16 A:

Not at all.

# 17 Q:

As a matter of fact, the negatives are being held by the court right now, are they not?

# 18 A:

I believe so.

# 19 Q:

And do you have any objection whatsoever to leaving them with the court for a day or two so Mr. Simpson or his experts can examine them?

# 20 A:

Not at all.

# 21 MR. KELLY:

I have nothing further.

# 22 MR. BAKER:

Nothing further. RECROSS-EXAMINATION BY

# 23 Q:

Oh, did you call your lawyer as we asked you to over the break since you -- and find out how much they had been offering?

# 24 A:

I attempted to get a hold of Mr. Kramer and Mr. Kramer is in route back to Buffalo.

# 25 Q:

Wait a minute. You didn't ask Mr. Kramer -- you testified earlier that you didn't know whether Mr. Kramer had been contacted by us at all this morning, you testified to that, did you not?

# 26 A:

You asked me to --

# 27 Q:

Did you not testify this morning that you didn't know whether Mr. Kramer had been contacted by any of Mr. Simpson's lawyers?

# 28 A:

That's correct.

# 29 Q:

You didn't contact him over the lunch hour, correct, you weren't able to reach him?

# 30 A:

I was not able to reach him.

# 31 Q:

You just testified to Mr. Kelly right in this courtroom that we had contacted your attorney and you had no objection if he turned over the negatives to us?

KEY QUOTE

# 32 MR. KELLY:

I believe that misstates his testimony, he said that he had no objection, he discussed with his attorney.

# 33 MR. BAKER:

Let him answer the question. Do you have an objection?

# 34 MR. KELLY:

I have an objection to the form of the question, misstates his testimony.

# 35 THE COURT:

Answer the question if you can.

# 36 Q:

(BY MR. BAKER) Are you --

# 37 A:

Can you repeat your question, please.

# 38 Q:

You're not telling this jury that you have information that we attempted to get the negatives, and your lawyer said you can do whatever you want and -- or you can look at the negatives; you're not attempting to tell this jury that, are you, Mr. Flammer?

# 39 A:

Can you repeat that one more time.

# 40 Q:

Are you attempting to tell this jury that we made efforts to get the negatives, these 30 photographs, and that you said to your lawyer, go ahead, give them to them, they can do whatever they want with the negatives; you're not attempting to tell this jury that, are you, sir?

# 41 A:

Yes, I am.

# 42 Q:

And you testified this morning --

# 43 A:

Um-hum.

# 44 Q:

-- that you didn't know whether we had ever even contacted your attorney, correct, didn't you?

# 45 A:

That's correct.

# 46 Q:

Did you or did you not? And you haven't since that testimony came into this courtroom, you have not contacted or been able to speak with your attorney, true?

# 47 A:

Correct.

# 48 MR. BAKER:

Thank you. REDIRECT EXAMINATION BY

# 49 Q:

Mr. Flammer, you instructed your attorney to make the negatives available to Mr. Simpson's lawyers, did they not?

# 50 MR. BAKER:

That's leading.

# 51 A:

That's correct.

# 52 MR. BAKER:

Move to strike the question and the answer.

# 53 THE COURT:

Overruled.

# 54 Q:

(BY MR. KELLY) And relative to the time you located those negatives, when did you give him that instruction?

# 55 A:

Immediately.

# 56 Q:

Okay. One more thing. When you were asked about insulating yourself, is it true that the reason you insulated yourself from the amount of the sale was to make your testimony not biased or colored here at trial?

# 57 MR. BAKER:

Leading, Your Honor.

# 58 THE COURT:

Sustained.

# 59 MR. KELLY:

I have no further questions.

# 60 MR. BAKER:

Nothing further.

# 61 THE COURT:

You're excused.

# 62 MR. KELLY:

Your Honor, at this time I would like to move in a number of items, which would be 2317, 2295, 2296, 2297, 2298, 2299, 2300, 2301, 2302, 2303, 2304, 2320, 2321, 2322, 2323, 2324 through 2353, and 2354 and 2355. (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2317.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2295.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2296.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2297.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2298.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2299.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2300.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2301.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2302.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2303.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2304.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2320.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2321.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2322.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2323.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2324.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2325.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2326.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2327.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2328.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2329.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2330.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2331.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2332.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2333.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2334.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2335.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2336.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2337.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2338.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2339.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2340.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2341.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2342.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2343.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2344.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2345.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2346.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2347.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2348.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2349.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2350.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2351.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2352.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2353.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2354.) (The instrument herein described was received in evidence as Plaintiffs' Exhibit No. 2355.)

# 63 MR. BAKER:

Your Honor, I'd like to mark that next, 2356, and move the declaration in. (The instrument herein described as Copy of Declaration of E.J. Flammer was marked for identification as Defendants' Exhibit No. 2356.)

# 64 THE COURT:

Okay. There being no objection both the defense --

# 65 THE CLERK:

Does anybody have an objection to a copy of the declaration being marked?

# 66 MR. BAKER:

No.

# 67 THE CLERK:

Okay. MS. MOLINARO: We call, for the record, Miss Leslie Gardner.

# 68 MR. BAKER:

Your Honor, we object. This is not rebuttal.

# 69 THE COURT:

Objection previously made and ruled on. Same ruling.

# 70 THE CLERK:

You were sworn previously. Can you state your name for the record. You are still under oath.

# 71 E.J. FLAMMER:

Leslie Gardner. DIRECT EXAMINATION BY MS. MOLINARO:

# 72 Q:

Good afternoon, Ms. Gardner.

Temperature

tense

Key Quotes (4)

Flammer

Yes, I am.

Flammer doubles down under Baker's aggressive questioning, insisting he told his attorney to give Simpson's team access to the negatives — directly contradicting his earlier testimony that he didn't know if Baker had even contacted his lawyer.

Baker

You just testified to Mr. Kelly right in this courtroom that we had contacted your attorney and you had no objection if he turned over the negatives to us?

Baker frames the apparent contradiction for the jury — Flammer claimed ignorance about attorney contact in the morning, but now speaks as if he'd authorized cooperation.

Flammer

Immediately.

When Kelly asks when Flammer instructed his attorney to make negatives available, this one-word answer is meant to convey proactive good faith.

Flammer

Not at all.

Repeated twice — to whether he objected to making negatives available to the defense, and to leaving them with the court — establishing Flammer as cooperative and not hiding anything.

Evidence (3)

Plaintiffs' Exhibits 2295–2304, 2317, 2320–2355

30 photographs (and related items) — the photo negatives at the center of Flammer's testimony

Admitted into evidence en masse at close of testimony

Defendants' Exhibit 2356

Copy of Declaration of E.J. Flammer

Marked for identification by defense; admitted without objection

Informal

Photo negatives currently held by the court

Discussed — Flammer consents to leaving them with court for defense examination

Notable Exchanges (2)

Baker•Flammer

Baker methodically walks Flammer through the contradiction: Flammer testified he didn't know if Baker contacted his attorney, couldn't reach his attorney over the lunch break, yet is now telling the jury he authorized his attorney to cooperate with the defense. Flammer ultimately maintains his position ('Yes, I am') despite the apparent inconsistency.

confrontational

Kelly•Baker

Kelly objects mid-question that Baker is mischaracterizing Flammer's testimony; Baker snaps 'Let him answer the question.' Court splits the difference, telling the witness to answer if he can.

adversarial

Credibility Attacks (1)

⚔ Flammer

Prior inconsistent statement

Baker confronts Flammer with his morning testimony that he didn't know whether defense counsel had contacted his attorney, then contrasts it with his redirect testimony implying he had affirmatively authorized his attorney to cooperate with Simpson's team — a contradiction Flammer cannot fully resolve since he admitted he never actually reached his attorney during the lunch break.

Witness Demeanor

Flammer asks Baker to repeat his question twice in succession, suggesting confusion or stalling under the rapid-fire recross.

Flammer gives clipped, cooperative answers on redirect ('Not at all,' 'I believe so,' 'Immediately') contrasting with halting answers on recross.

Objections

7 objections (4 sustained, 2 overruled)

Proceeding 8798 • 72 utterances • Plaintiff witness

Civil Trial

Department 103