Sidebar: photograph examination

📄 Sidebar: photograph examination — Tuesday, January 14, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\14\SIDEBAR-PHOTOGRAPH-EXAMINATION.DOC

TRIAL

▲ Day 41 of 57

◀ Direct examination of Gerald Richards (part 1) Direct examination of Gerald Richards (part 2) ▶

Examiner: Examiner
Date: Tuesday, January 14, 1997 • Utterances: 34

Defense counsel Leonard and Baker objected at sidebar to plaintiff's expert being asked about the Flammer photographs, arguing the court had effectively excluded that area. Plaintiff's counsel Gelblum and Petrocelli clarified the witness would testify only about how his examination of the Flammer photos affected his opinion of the Scull photo — not about authenticity directly. The court ruled the examination would be permitted and instructed the defense to include a note in their pending Court of Appeals filing; testimony was pushed to Thursday.

# 1 MR. LEONARD:

Objection. I move to side bar.

# 2 THE COURT:

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

# 3 MR. LEONARD:

I can't believe he asked the question. This is exactly the area that you excluded yesterday. This is -- this is a violation --

# 4 THE COURT:

I haven't excluded it; I gave you the opportunity to take it up.

# 5 MR. BAKER:

Wait a minute. You told us yesterday that they couldn't put him on until Thursday.

# 6 THE COURT:

Yeah. I didn't exclude it.

# 7 MR. BAKER:

Well --

# 8 THE COURT:

Now you want to wait till Thursday? Fine.

# 9 MR. BAKER:

Wait.

# 10 MR. GELBLUM:

He's not going to testify as to authenticity of the Flammer photos; he's going to testify as to the effect of his examination of the Flammer photos on his opinion about the Scull photo.

KEY QUOTE

# 11 MR. LEONARD:

It's the same --

# 12 THE COURT:

Excuse me.

# 13 MR. GELBLUM:

I'm not going to ask him if he thought the Flammer photos are authentic; I'm going to ask him whether his examination of the Flammer photos have any impact on his opinion of the Scull photos. I'm not going to ask him anything about the authenticity.

# 14 MR. LEONARD:

It's the same thing. It's a sandbag. What am I supposed to do then? The implication is that he examined them, and we have no way to combat that at this point. This is not right. That's exactly what he were trying to avoid.

# 15 MR. PETROCELLI:

I want to get my two cents in here. I offered this guy for deposition yesterday, if they want, on the Flammer. We're continuing to offer him up on Flammer after court today, tomorrow morning. He's in town now. We would like it separate and apart, independent from this examination, which has nothing to do with authenticity itself and alteration. What we would like to propose is that, if they want, they can take his deposition, so we can put him on for that separate purpose before we rest our case this week. But in terms of this issue, he is simply assuming that picture, you know, the Flammer photos are authentic. It does have an impact on that opinion. We asked the same questions of Mr. Groden. Mr. Groden testified that, assuming the photos were authentic, the Flammer photos, they would affect his opinion. He's entitled to go into that same area. And lastly, I would like to add for the record here that, Mr. Simpson, yesterday -- and I have the testimony right up on the screen on the computer -- said that these Flammer pictures were bogus, too; thereby, for the first time putting that issue into play in this case. He said, that's me, but that's not my shoes. He directly challenged the authenticity of the photos.

# 16 THE COURT:

Well, from an evidentiary standpoint, I think that's clearly what I did tell the defense; that they had an opportunity to take it up. I assume they're taking it up.

# 17 MR. BAKER:

We are taking it up. Not only that, this belated talking about a deposition. 2034 (k) and 2034 (l) give exact criteria, what you have to do. They haven't given -- done any of it. We'll take it up.

# 18 MR. PETROCELLI:

Take it up? Have you filed it?

# 19 MR. BAKER:

I don't have to answer your questions.

# 20 THE COURT:

The question is, I gave you until Thursday.

# 21 MR. BAKER:

That -- that you're saying I'm not looking for impeachment with regards to whether they're a fraud or not. That's what you said. That led us to believe that you were not going to let him technically impeach the photographs. Now, of course, you've changed your mind again, and we'll just take it up and see what happens.

# 22 MR. LEONARD:

What do we do now?

# 23 THE COURT:

When do you expect a response from the Court of Appeals?

# 24 MR. BAKER:

I don't have any idea what the Court of Appeals does.

# 25 THE COURT:

Has it been filed?

# 26 MR. BAKER:

No. It will be filed, hopefully, today or early tomorrow.

# 27 THE COURT:

Okay. Include in your filing that the Court is going to permit the examination of the photograph, as well as by this witness' testimony. That is because the impeaching item is the photograph itself. And the testimony of this witness is not contradicting opinion testimony, but simply establishing the authenticity of the impeaching material itself.

# 28 MR. BAKER:

If you can call a horse a cow, you can't.

KEY QUOTE

# 29 MR. GELBLUM:

Can I ask him now, assuming --

# 30 THE COURT:

No, wait till Thursday.

# 31

MR. PETROCELLI: Okay. We'll wait till Thursday. (The following proceedings were held in open court, in the presence of the jury.)

# 32 MR. GELBLUM:

We'll come back to that.

# 33 THE COURT:

Okay. Proceed.

# 34 Q:

(BY MR. GELBLUM) Now, a man named Robert Groden testified here as an expert for the defense about various problems that he said he found with this photograph. Have you reviewed Mr. Baden's testimony?

Temperature

tense

Key Quotes (5)

Dan Leonard

It's a sandbag. What am I supposed to do then? The implication is that he examined them, and we have no way to combat that at this point.

Captures the defense's core complaint — that the framing of the question smuggles in an authenticity inference without technically asserting it.

Daniel Petrocelli

Mr. Simpson, yesterday — said that these Flammer pictures were bogus, too; thereby, for the first time putting that issue into play in this case. He said, that's me, but that's not my shoes. He directly challenged the authenticity of the photos.

Petrocelli argues that OJ Simpson's own testimony opened the door to this line of examination, shifting the evidentiary burden.

Peter Gelblum

He's not going to testify as to authenticity of the Flammer photos; he's going to testify as to the effect of his examination of the Flammer photos on his opinion about the Scull photo.

The precise distinction plaintiff drew to thread the needle around the court's prior limitation — opinion impact vs. authenticity.

Judge Hiroshi Fujisaki

The impeaching item is the photograph itself. And the testimony of this witness is not contradicting opinion testimony, but simply establishing the authenticity of the impeaching material itself.

The court's rationale for allowing the examination — the witness authenticates the impeachment exhibit rather than opining on contested facts.

Robert Baker

If you can call a horse a cow, you can't.

Baker's blunt protest that the authenticity/opinion distinction the court accepted is a semantic fiction.

Evidence (2)

Informal

Flammer photographs — photos of OJ Simpson whose authenticity was disputed; OJ himself testified they were 'bogus' and 'not my shoes'

discussed, contested as to scope of permissible examination

Informal

Scull photo — a separate photograph whose authenticity is the primary subject of the expert's opinion

discussed as the target of the expert's impeachment opinion

Notable Exchanges (3)

Robert Baker•Hiroshi Fujisaki

Baker insisted the court had previously told them the witness couldn't testify until Thursday and had excluded the area; Fujisaki corrected that he gave the defense an opportunity to take it up, not an exclusion, and offered to simply wait until Thursday.

tense, with Baker pushing back on the court's characterization of its own prior ruling

Daniel Petrocelli•Robert Baker

Petrocelli offered to make their expert available for deposition on the Flammer issue that same day or next morning; Baker dismissed the offer as procedurally deficient under CCP 2034(k) and (l) without engaging with it substantively.

strategic, adversarial

Peter Gelblum•Dan Leonard

Gelblum drew a precise distinction between authenticity testimony and opinion-impact testimony; Leonard rejected it as 'the same thing' and argued the implication of the question was indistinguishable from an authenticity claim.

technical, heated

Credibility Attacks (1)

⚔ Robert Groden

competing expert opinion

Petrocelli noted that Groden himself had testified that, assuming the Flammer photos were authentic, they would affect his opinion — arguing plaintiff's expert was entitled to address the same premise.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 8801 • 34 utterances

Civil Trial

Department 103