Cross-examination of Kato Kaelin

📄 Cross-examination of Kato Kaelin — Wednesday, January 8, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\8\CROSS-EXAMINATION-OF-KATO-KAEL.DOC

TRIAL

▲ Day 37 of 57

◀ Morning housekeeping Sidebar: testimony admissibility ▶

Witness: Brian "Kato" Kaelin
Examiner: Daniel Petrocelli
Called by: Defense • Date: Wednesday, January 8, 1997 • Lines: 224

Robert Baker cross-examines Kato Kaelin in the civil trial about the timing of the thumps, O.J. Simpson's clothing that night, and Detective Fuhrman's inspection of Kaelin's room. Baker invokes Rachel Ferrara's prior testimony and proposed 10:30 and 10:40 times, but the court sustains objections to characterizations tying those times to the thumps. Kaelin maintains his recollection of a dark sweatsuit. Several questions draw sustained objections for revisiting prior testimony, although a Fuhrman-related question is allowed and answered.

# 1 A:

Morning.

# 2 Q:

How many television shows have you appeared on, with or without your attorney, since you left the witness stand in this case?

# 3 MR. PETROCELLI:

Objection. Relevance.

# 4 THE COURT:

Sustained.

# 5 Q:

(BY MR. BAKER) Well, in terms of -- you have made a career out of this case, haven't you?

# 6 MR. PETROCELLI:

Objection. Relevance.

# 7 THE COURT:

Overruled.

# 8 A:

No.

# 9 Q:

(BY MR. BAKER) You -- let me ask you this, sir: You met with the plaintiffs' attorneys this morning, did you not?

# 10 A:

No, I did not.

# 11 Q:

You went over a statement, a police statement that you had given Detective Tippin before you got on the witness stand today, did you not?

# 12 A:

No, I did not.

# 13 Q:

Have you at any time gone over the witness statement that you gave Detective Tippin on June 13, 1994?

# 14 A:

Is that the one that -- last time I was here?

# 15 Q:

No. June 13, 1994.

# 16 A:

No; I never went over anything.

# 17 Q:

You know, about two and a half years ago?

# 18 A:

No, never.

# 19 Q:

You were interviewed at the West L.

# 20 A:

station at 1330, or about 1:30 in the afternoon by Detectives Tippin and Carr. You recall that?

# 21 A:

Correct.

# 22 Q:

And you indicated various things about your relationship with Nicole Brown Simpson and O.J. Simpson, correct?

# 23 A:

Correct.

# 24 Q:

And you indicated, for example, that O.J. had never indicated to you he had any problems with Nicole Brown Simpson, correct?

# 25 A:

I don't -- I don't recollect that.

# 26 Q:

O.J. mentioned no problems between Nicole and himself. Did you tell Detective Tippin that on June 13, 1994, sir?

# 27 A:

I don't recall.

# 28 Q:

Don't have any reason to disbelieve it if it's in the report of Detective Tippin?

# 29 A:

Correct.

# 30 Q:

Don't have any reason to disbelieve anything that's in the report of Detective Tippin as relative to what you told him on June 13, 1994 and he recorded as you were being interviewed by him?

# 31 MR. PETROCELLI:

Objection, Your Honor. Lack of foundation. He's never seen a report. It's not his report. He can't vouch for everything that's in it.

# 32 THE COURT:

Sustained.

# 33 Q:

(BY MR. BAKER) This is 2198, Mr. Kaelin. Is that the document -- strike that. Have you ever never seen that?

# 34 A:

No, I never saw this.

# 35 Q:

All right. But that is the time you were at West L.

# 36 A:

station when you gave the report, correct?

# 37 A:

I think I was there a lot earlier than 1:30, but. . .

# 38 Q:

You were there earlier; that's when that statement was taken. And you recall being interviewed by Detective Tippin, right?

# 39 A:

Yes.

# 40 Q:

And do you recall that you, in fact, answered some questions of him?

# 41 A:

Yes, I did.

# 42 Q:

And you recall that it took a period of time, correct?

# 43 A:

Correct.

# 44 Q:

And you told him the truth as you understood it on that day, true?

# 45 A:

True.

# 46 Q:

And I take it that your memory was more fresh concerning the events of the prior evening than at any time thereafter when you testified, true?

# 47 A:

Yeah, probably.

# 48 Q:

And you were trying to be true and honest as you could in giving Detective Tippin the information that you did on June 13, 1994, correct?

# 49 A:

Correct.

# 50 Q:

Now, was it your understanding when you told Detective Tippin that O.J. Simpson was wearing a sweatsuit, that he was wearing a sweatsuit when he entered the limousine?

# 51 A:

Yeah. I always thought he was wearing a dark suit.

# 52 Q:

A dark suit when he entered the limousine?

# 53 A:

Sweatsuit.

# 54 Q:

And when -- after Mr. Simpson came out of the house around 11 o'clock on the evening of June 12, 1994, you were with him when you were talking about the thumps, right?

# 55 A:

Repeat the question.

# 56 Q:

Sure. After Mr. Simpson came out of the house, you were with him when you were talking with him and Alan Park concerning the thumps that you heard earlier in the evening, correct?

# 57 A:

Correct.

# 58 MR. PETROCELLI:

Your Honor, it's all been gone over. Page 181, et seq. of the transcript of November 19.

# 59 THE COURT:

Sustained.

# 60 Q:

(BY MR. BAKER) Now, you had occasion to view Mr. Simpson for a -- for about five to seven minutes, and you thought he was in a dark sweatsuit when he entered the limousine, correct?

# 61 A:

In my minds's eye, I always picture him in that dark suit.

# 62 Q:

You didn't picture him in Levis or Levis jacket; he was in a dark pants -- dark suit, correct?

# 63 A:

Yes.

# 64 Q:

And he had dark or white shoes on? Don't recall?

# 65 A:

I don't recall.

# 66 Q:

You don't recall any types of shoes he had on?

# 67 A:

I don't recall.

# 68 Q:

Now, you were talking to Rachel Ferrara the night of June 12, 1994, when you heard the thumps, correct?

# 69 A:

Correct.

# 70 Q:

And you, in your conversation with her, you talked to her and told her at 10:30, that it was approximately 10:30, correct?

# 71 MR. PETROCELLI:

Objection. It's all been gone over.

# 72 THE COURT:

Sustained.

# 73 Q:

(BY MR. BAKER) You have no reason to disbelieve Rachel Ferrara if she said that you told her the thumps occurred at about 10:40, correct?

# 74 MR. PETROCELLI:

Objection, Your Honor. Same thing.

# 75 THE COURT:

I'll permit that.

# 76 A:

I don't know.

# 77 Q:

(BY MR. BAKER) Well --

# 78 A:

I don't -- I mean -- say the question again.

# 79 Q:

Sure. Rachel Ferrara testified at the criminal trial. You're aware of that?

# 80 A:

Correct.

# 81 Q:

And she testified that you told her that the thumps occurred at 10:40?

# 82 MR. PETROCELLI:

Objection, Your Honor. That absolutely misstates the testimony.

# 83 MR. BAKER:

The testimony was read into the record.

# 84 MR. PETROCELLI:

It misstates the testimony. I wish you would ask a question, not make any representations.

# 85 MR. BAKER:

You're making a representation.

# 86 THE COURT:

Well, approach the bench and show me where it's wrong, Mr. Petrocelli.

# 87 MR. PETROCELLI:

He should have to show where he testified to this, Your Honor.

# 88 THE COURT:

You're making the objection. I'll see the basis for your objection. (The following proceedings were held at the bench, with the reporter.)

# 89 MR. PETROCELLI:

Ms. Ferrara's testimony was that the only time that was ever mentioned to her in her conversation with Kaelin was the time of 10:30, when she asked Kaelin what time it was, and Kaelin said 10:30. And everything beyond --

# 90 THE COURT:

Show me.

# 91 MR. PETROCELLI:

-- beyond that were estimates. I'm looking for it.

# 92 MR. BAKER:

2462.

# 93 THE COURT:

Do you have a copy of Kaelin's testimony?

# 94 MR. BAKER:

Yeah. (Court reviews transcript.)

# 95 THE COURT:

Okay. Objection sustained.

# 96 MR. BAKER:

Wait just a second.

# 97 MR. PETROCELLI:

What does that say?

# 98 MR. BAKER:

10:30.

# 99 MR. PETROCELLI:

Kaelin didn't say it was 10:30.

# 100

THE COURT: Sustained. You may rephrase the question. (The following proceedings were held in open court, in the presence of the jury.)

# 101 Q:

(BY MR. BAKER) Do you recall in your conversation with his Rachel Ferrara, that you and she talked about at 10:30, that it was, in fact, 10:30?

# 102 A:

No.

# 103 Q:

And if she testified to that, you'd have no reason to disbelieve her, correct?

# 104 MR. PETROCELLI:

Objection. Argumentative.

# 105 THE COURT:

Overruled.

# 106 A:

I don't know if she had a clock when she was talking to me.

KEY QUOTE

# 107 Q:

(BY MR. BAKER) You said that you and she discussed at 10:30 that it was, in fact, 10:30. You have no recollection of that?

# 108 MR. PETROCELLI:

Objection. There was nothing about that it was, in fact, 10:30.

# 109 THE COURT:

Sustained.

# 110 Q:

(BY MR. BAKER) Then it was about 10:30 when you and she discussed -- about the time, at 10:30, in a telephone conversation you had with her, before you got off the phone and went to look for what made the noises, correct?

# 111 A:

Not correct.

# 112 Q:

You have no recollection of that, right?

# 113 A:

I don't remember saying -- if there's a time mentioned, it wasn't a time involving, I'm sure, the thumps.

# 114 Q:

In the conversation you had before you got off the phone to go look to where the noises may have come from, Rachel Ferrara says that you and she discussed that it was approximately 10:30, when it was approximately 10:30. Do you recall that having occurred at all, sir?

# 115 MR. PETROCELLI:

I'm going to object, Your Honor. It really misstates the tenor of the testimony of Ms. Ferrara.

# 116 MR. BAKER:

Your honor -- Your Honor, at 20462 --

# 117 MR. PETROCELLI:

We're not talking about the time.

MR. P. BAKER: 20462. (Court reviews realtime computer screen.)

# 118 THE COURT:

Are you asking about when the conversation occurred, Mr. Baker? I can't understand from the way this question looks on the computer exactly what the nature of your question is.

# 119 MR. BAKER:

Let me see if I can rephrase it to make it clear.

# 120 Q:

(BY MR. BAKER) Do you have any recollection whatsoever that, during the first conversation you had with Rachel Ferrara on June 12, 1994, that you mentioned or she mentioned any time of the evening?

# 121 A:

There might have been some mention of time during the evening, yes.

# 122 Q:

And do you have a recollection that at approximately 10:30 in the evening, in your -- during your telephone call with Rachel Ferrara, that you and she discussed that it was about 10:30?

# 123 A:

I don't recollect that.

# 124 Q:

And do you have any recollection that, about ten minutes later -- well, strike that. Do you have any recollection, at approximately 10:40, ever telling her that you heard thumps outside your bedroom wall?

# 125 MR. PETROCELLI:

Objection. This was the subject of --

# 126 THE COURT:

Overruled.

# 127 MR. PETROCELLI:

-- extensive testimony, Your Honor, page 168.

# 128 MR. BAKER:

You can answer that.

# 129 A:

No, I don't.

# 130 Q:

(BY MR. BAKER) Now, if -- Rachel Ferrara, as far as you're concerned, is a pretty honest person, isn't she?

# 131 A:

Yes.

# 132 Q:

And if she testified that, at approximately 10:30, you and she discussed that it was about 10:30, and ten minutes later, when you told her about the thumps and asked her about the earthquake, you'd have no reason to disbelieve that, either, would you?

# 133 A:

I don't know if she has a clock there. I can't tell you.

# 134 Q:

I didn't ask you whether she has a clock there. I said, you have no reason to disbelieve her, would you, sir?

# 135 A:

No.

# 136 Q:

Now, let's go back for a moment, to the -- your testimony relative to the clothing Mr. Simpson was wearing. You believed that Mr. Simpson was wearing -- and you testified in the preliminary hearing and you testified here in this courtroom that Mr. Simpson was wearing a dark sweatsuit when you went to the McDonald's, right?

# 137 A:

Correct.

# 138 Q:

And it had a white zipper down the front, right?

# 139 A:

Right.

# 140 Q:

White, both sides of the zipper?

# 141 A:

Something that contrasted to the suit, right.

# 142 Q:

It had white on both sides of the opening in the front, correct?

# 143 A:

There was a zipper that stood out. I believe it could have been white.

# 144 Q:

You testified it was white, and it was a white zipper that went down the front, didn't you, sir?

# 145 A:

I said that.

# 146 Q:

And you testified that's exactly the same clothing that he was in when you watched him get into the limousine, when you came out of the front of his house; isn't that true?

# 147 A:

I don't remember.

# 148 Q:

Well, let's go back.

# 149 A:

Okay.

# 150 Q:

You were in Mr. Simpson's house with him, were you not, in the foyer, when you were going to go look for a flashlight?

# 151 A:

Correct.

# 152 Q:

And Mr. Simpson said to you, "it's late; I got to go," went out the foyer, into the limousine, and you went out behind him, correct?

# 153 A:

Not immediately.

# 154 Q:

You followed him. Mr. Simpson went out the front door, and you went out after him, correct?

# 155 A:

Correct.

# 156 Q:

And you watched Mr. Simpson get into the limousine, correct?

# 157 A:

At some point I did, yes.

# 158 Q:

And Mr. Simpson -- and you say Mr. Simpson was in a dark sweatsuit, true?

# 159 A:

It's always been that way in my mind's eye, yes.

KEY QUOTE

# 160 Q:

If you were the only one that testified that he was ever in a dark sweatsuit in that limousine, or on the airplane, or at the airport, you'd agree you're wrong, true?

# 161 MR. PETROCELLI:

Objection, Your Honor. Argumentative.

# 162 THE COURT:

Sustained.

# 163 Q:

(BY MR. BAKER) And you're equally wrong about what he was wearing when you went to McDonald's on the night of June 12, 1994. You don't recall any better what he was wearing when he went to get a hamburger at McDonald's than what you recall when you observed him get in the limousine, do you?

# 164 A:

I recall the dark suit.

# 165 Q:

You recall with specificity the dark suit, both at -- going to get the hamburger and he going into the limousine, because you were a couple feet behind him and looked at him, right?

# 166 A:

I've always said it was a dark suit, sir.

# 167 Q:

And it wasn't, was it?

# 168 MR. PETROCELLI:

Objection, argumentative.

# 169 THE COURT:

Sustained.

# 170 Q:

(BY MR. BAKER) Did you tell anybody on television that when you testified here on November 19 that the jurors all believed you, they sat up straight in their seats and believed you?

KEY QUOTE

# 171 MR. PETROCELLI:

Objection, outrageous.

# 172 THE COURT:

Sustained. Jury is to disregard that question.

# 173 MR. PETROCELLI:

Ask that the question be stricken.

# 174 THE COURT:

Question stricken.

# 175 Q:

(BY MR. BAKER) Now, when Mark Fuhrman was in your room on the night of -- morning of June 13, 1994, did he ask you to inspect your boots?

# 176 MR. PETROCELLI:

Objection, Your Honor, all this has been gone over. Starting at page 197. Mr. Fuhrman's conversation starts at 197 and pretty much goes through 207 about 10 pages. (Pause for Court to read transcript.)

# 177 THE COURT:

Sustained.

# 178 Q:

(BY MR. BAKER) Detective Fuhrman went into your bathroom and looked around in your bathroom on the night of June 13 -- the morning of June 13, 1994, correct?

# 179 MR. PETROCELLI:

Objection. You just sustained it and he asks the same question, Your Honor.

# 180 THE COURT:

Sustained.

# 181 MR. PETROCELLI:

He's just arguing to the jury right now.

# 182 Q:

(BY MR. BAKER) If Detective Fuhrman testified --

# 183 MR. PETROCELLI:

Again, Your Honor.

# 184 THE COURT:

Let him finish the question.

# 185 MR. PETROCELLI:

He's referring to Detective Fuhrman's testimony that's been subject of a lot of rulings.

# 186 THE COURT:

I haven't heard the question.

# 187 Q:

(BY MR. BAKER) If Detective Fuhrman testified in the criminal trial that he inspected your bathroom, the shower area and the closet, would you agree that he in fact did that?

# 188 MR. PETROCELLI:

Calls for hearsay, calls for a conclusion, argumentative.

# 189 THE COURT:

Overruled.

# 190 A:

I didn't see that.

# 191 Q:

(BY MR. BAKER) Now, that room, as I recall it, is about 14 feet across to maybe 20 feet, and it's 20 feet long, correct? Do you know?

# 192 A:

I don't know but you're probably -- you know, if you measured it -- I didn't measure.

# 193 Q:

Well, the approximate size. I'm not saying -- it wasn't a big room, let me put it that way.

# 194 A:

Right.

# 195 Q:

And from where your bed was in that room, the bathroom adjoins it, and it's not exactly a master bathroom, is it?

# 196 A:

Correct.

# 197 Q:

I mean a small little area, true, the bathroom?

# 198 A:

Yeah. I don't know what the measurements would be.

# 199 Q:

It's got?

# 200 A:

Shower, bathroom sink.

# 201 Q:

Sure. But it's not exceptionally spacious, is it?

# 202 A:

No.

# 203 Q:

And you were standing at the doorway when Mr. Fuhrman came in, correct?

# 204 A:

Correct.

# 205 Q:

And then Mr. Fuhrman went over and inspected your clothes, true?

# 206 MR. PETROCELLI:

Objection, Your Honor.

# 207 THE COURT:

Sustained. That's completely gone over, page 202.

# 208 Q:

(BY MR. BAKER) You never saw Detective Fuhrman in your bathroom or in your closet, ever?

# 209 THE COURT:

Objection sustained. He was asked that question and he answered that.

# 210 MR. BAKER:

Nothing further.

# 211 THE COURT:

Anything else of this witness?

# 212 MR. PETROCELLI:

No, no questions.

# 213 THE COURT:

You may step down.

# 214 BRIAN "KATO" KAELIN:

Go ahead.

# 215 THE COURT:

You're excused. Call the next witness.

# 216 MR. LEONARD:

Your Honor, we're checking to see if he's here.

# 217 MR. PETROCELLI:

If the Court please, may we approach before the witness. (The following proceedings were held at the bench with reporter:)

# 218 MR. MEDVENE:

If the Court please, our understanding is this witness is being called to see whether or not he told Officer Tippin --

# 219 MR. LEONARD:

Tippin?

# 220 MR. MEDVENE:

-- Tippin, on or about June 15 that he received a phone call from a news reporter on June 12 sometime between 10 and 10:30 with respect to a double murder, and this witness said he didn't have any such information.

# 221 MR. LEONARD:

What?

# 222 MR. MEDVENE:

Mr. Tippin already was questioned about this. We object to Officer Merrin's testimony because it's hearsay, what questions he was asked by a news reporter. But more importantly, it's irrelevant because under Your Honor's ruling, clue evidence cannot be admitted unless the defense can show some tie-in to the offense in question. And all they're trying to establish here is that there was a call by a news reporter asking Officer Merrin if he had heard about a double murder being committed on June 12 and -- and about 10, 10:30, and he said no. So unless there's some tie-in to the murders of Ms. Brown and Mr. Goldman, Detective -- or Officer Merrin's testimony is not relevant under Your Honor's prior ruling.

# 223 THE COURT:

Mr. Leonard?

# 224 MR. LEONARD:

Your Honor, this is a person who was holding themselves out to be some type of a reporter, a woman called between 10:30 -- 10 o'clock and 10:30 on June 12 asking if there had been a report -- a report of a double homicide. That is completely inconsistent with their theory of the case, particularly their time line, the time of the murders. It's also inconsistent with the murders having been committed by a single assailant. Obviously, there was -- first of all, this witness will testify there was only one double murder that night anywhere in West L

Temperature

tense

Key Quotes (4)

MR. BAKER

You have made a career out of this case, haven't you?

Baker asks whether Kaelin made a career out of the case; after a relevance objection is overruled, Kaelin answers no.

Kato Kaelin

It's always been that way in my mind's eye, yes.

Kaelin remains consistent in his recollection that O.J. wore a dark sweatsuit; Baker challenges that recollection with an argumentative hypothetical, and the objection is sustained.

Kato Kaelin

I don't know if she had a clock when she was talking to me.

Kaelin resists using Ferrara's access to a clock as a basis for fixing the conversation's time; in later questioning, he reports no recollection of telling her at approximately 10:40 that he heard thumps.

MR. BAKER

Did you tell anybody on television that when you testified here on November 19 that the jurors all believed you, they sat up straight in their seats and believed you?

Baker's most aggressive moment — accusing Kaelin of grandstanding on TV. The question was immediately stricken and the jury instructed to disregard it.

Evidence (2)

2198

Detective Tippin's written report from Kaelin's June 13, 1994 interview at West L.A. station

Baker attempts to use it to refresh Kaelin's memory and establish prior statements; Kaelin says he never saw the document

Informal

Transcript pages 168, 181, and 197-207 concerning Kaelin's prior testimony on thumps and Fuhrman

Petrocelli repeatedly cites specific pages to argue Baker is re-covering already-examined ground; court sustains on that basis multiple times

Notable Exchanges (3)

MR. BAKER•MR. PETROCELLI•THE COURT

Bench conference after Baker asks whether Ferrara testified that Kaelin said the thumps occurred at 10:40. Petrocelli objects that the question misstates her testimony and explains that 10:30 was the only time mentioned during the conversation, not an established thump time. The court reviews the transcript, sustains the objection, and permits Baker to rephrase.

heated

MR. BAKER•Kato Kaelin

Baker presses Kaelin on OJ's dark sweatsuit, suggesting if Kaelin is the only witness who ever described it, he must be wrong. Kaelin holds firm: 'It's always been that way in my mind's eye.' Baker's follow-up — 'And it wasn't, was it?' — was sustained as argumentative.

strategic

MR. BAKER•MR. PETROCELLI•THE COURT

Baker repeatedly questions Kaelin about Fuhrman's inspection of his room, bathroom, and closet. Several of Petrocelli's objections are sustained because the subject was already covered, but the court overrules Petrocelli's objection to Baker's completed hypothetical about Fuhrman's criminal-trial testimony, and Kaelin answers that he did not see the inspection.

procedural

Light Moments (1)

Kato Kaelin

After the court tells Kaelin, 'You may step down,' Kaelin replies, 'Go ahead'; the court then says he is excused.

Credibility Attacks (4)

⚔ Kato Kaelin

Media exploitation / motive to embellish

Baker asks how many television shows Kaelin has appeared on and whether he has made a career out of the case, framing a possible credibility motive; Kaelin answers no.

⚔ Kato Kaelin

Attempted use of prior statement / memory comparison

Baker questions Kaelin about his June 13, 1994 interview with Detective Tippin and Exhibit 2198; Kaelin says he had never seen the report and agrees his memory immediately after the events was probably fresher, but the exchange does not establish a contradiction with his later testimony.

⚔ Kato Kaelin

Attempted timeline impeachment through prior testimony

Baker presses Kaelin about time references in his conversation with Rachel Ferrara. The court sustains objections to characterizations connecting 10:30 or 10:40 to the thumps, and Kaelin rejects the proposed 10:30 sequence while later reporting no recollection of a 10:40 statement.

⚔ Kato Kaelin

Argumentative hypothetical challenging clothing recollection

Baker asks whether, if Kaelin is the only witness to ever describe OJ in a dark sweatsuit in the limo or on the plane, he would agree he is wrong — suggesting his clothing recollection is uniquely unreliable

Witness Demeanor

Kaelin is vague and non-committal throughout, frequently saying 'I don't recall,' 'I don't recollect,' and 'I don't know'

He is consistent on one point — OJ's dark sweatsuit — repeating 'in my mind's eye' multiple times

He deflects the Rachel Ferrara clock question with 'I don't know if she had a clock when she was talking to me'

Objections

18 objections (13 sustained, 5 overruled)

Proceeding 8756 • 224 lines • Defense witness

Civil Trial

Department 103