Sidebar: videotape editing and foundation

📄 Sidebar: videotape editing and foundation — Tuesday, April 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\11\SIDEBAR-VIDEOTAPE-EDITING-AND-.DOC

TRIAL

▲ Day 54 of 167

Date: Tuesday, April 11, 1995 • Utterances: 25

At a bench sidebar, prosecutors objected to the defense showing an edited videotape of crime scene evidence collection, arguing it lacked proper foundation — no cameraman, no access to original tapes, and visible cuts between scenes. Scheck acknowledged the tape looped on laser disk but argued one continuous segment showing Mr. Jacobo's blue pants and black shoes was unedited and sufficient for impeachment. Judge Ito sustained the foundational objection broadly but allowed only that one continuous segment to be shown.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 MR. GOLDBERG:

THIS IS THE TREMENDOUS PROBLEM, YOUR HONOR, WITHOUT HAVING ANY FOUNDATION WHATSOEVER FOR THESE TAPES, WITHOUT HAVING THE CAMERAMAN, WITHOUT EVEN HAVING ACCESS TO THE ORIGINAL TAPES BEFORE DEFENSE HAS STARTED DESIGNING THEM HOWEVER THEY WANTED. THIS IS VERY CLEARLY A SITUATION, AS FAR AS I CAN TELL, WHERE YOU HAVE TWO SEPARATE SCENES CUT TOGETHER. AND THERE IS A CUT. I MEAN OTHERWISE, ANDREA MAZZOLA JUST VANISHES INTO THIN AIR. SO WHY DO THEY GET TO EDIT THESE TAPES AND PUT THEM TOGETHER ANY WAY THEY WANT, TO APPLY THEM WHATEVER ORDER THEY WANT, FOR WHATEVER PURPOSE THEY WANT. IT SHOULD NOT BE ALLOWED.

# 3 MR. SCHECK:

YOUR HONOR, WE HAD A TWO-VOLUME SET, REPETITIVE. THE COURT INSTRUCTED US TO PARE DOWN WHAT WE HAD TO MAKE IT EFFICIENT FOR PURPOSES OF THE PRESENTATION ISSUE. I FRANKLY DID NOT DESIGN THIS PARTICULAR TAPE FOR THIS PARTICULAR PURPOSE. THE ONLY REASON THIS ISSUE AROSE IS THAT THE WITNESS HAS NOW CHOSEN TO SAY THAT SURE, THAT'S NOT THE ENVELOPE BECAUSE THE EVIDENCE COLLECTION DIDN'T BEGIN UNTIL THE CORONERS HAD LEFT, AND I THINK THAT'S PLAINLY NOT TRUE FROM THE CONTINUOUS SHOT WHERE YOU SEE HIS SHOES COMING DOWN THE STAIRS IN A BLUE UNIFORM AND BLACK SHOES WHICH HE'S PUTTING BOTH BACK ON THE SIDEWALK. NO CUT THERE.

# 4 MR. GOLDBERG:

YOU SEE MR. JACOBO IN THE SHOT TWICE. HE STARTS --

# 5 THE COURT:

YOU ONLY GET TO TALK ONE AT A TIME, MR. GOLDBERG.

# 6 MR. GOLDBERG:

IT'S NOT A CONTINUOUS SHOT. I WOULD ASK THE COURT IF THE COURT HAS ANY DOUBT TO LOOK AT IT AGAIN, HAVE YOU SEE MR. JACOBO POINT, WHAT I THINK IS THE SECOND PIECE OF THE TAPE, THEN START DOWN THE STAIRS AND STARTS OVER AGAIN. SO IT'S SO CRYSTAL CLEAR THAT IT'S BEEN EDITED TOGETHER.

# 7 MS. CLARK:

CAN WE JUST HAVE A MOMENT, YOUR HONOR?

# 8 THE COURT:

SURE.

# 9 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 10 MR. GOLDBERG:

ALSO, IT APPEARS YOU HAVE THREE CUTS. AT THE VERY LEAST, COUNSEL IS CONCEDING THAT YOU HAVE TWO. SO WHAT HAPPENS IN THIS SITUATION, EVEN UNDER HIS INTERPRETATION, WHICH WE DON'T ACCEPT, WHERE YOU HAVE A PAIR OF SHOES -- AND THERE IS NO WAY TO DETERMINE WHOSE SHOES THOSE ARE. I MEAN -- AND THIS IS IF YOU ACCEPT HIS INTERPRETATION. AND THEN EVEN UNDER HIS INTERPRETATION, IN WHAT HE'S SAYING IS THE SECOND, WHAT WE ARE SAYING IS A THIRD PIECE OF FILM SHOWING MR. JACOBO GOING THE REST OF THE WAY DOWN THE STAIRS.

# 11 THE COURT:

MR. SCHECK, TELL ME ABOUT THE LOOP, THE FACT THAT I SEE THE SAME SCENE TWICE.

# 12 MR. SCHECK:

IT DOES LOOP. WHAT HAPPENED, IT WAS PUT ON LASER DISK. IT LOOPED BACK ONE TIME. IT SHOWS THE SHOT OF JACOBO FULL BODIED TWICE. THAT'S THE WAY THIS PARTICULAR DISK WAS PRINTED. IF YOU WANT, WE CAN INSTRUCT THE JURY THAT THAT LOOPS IN TWICE OR WE CAN GET RID OF THAT ONE PARTICULAR SHOT.

KEY QUOTE

# 13 THE COURT:

THAT CAUSES ME TO HAVE FOUNDATIONAL CONCERNS. PERHAPS THE ISSUE IS WHAT TOOK PLACE FIRST, AND BECAUSE I SEE JUMPS IN IT, I THINK I'M GOING TO SUSTAIN A FOUNDATIONAL OBJECTION.

KEY QUOTE

# 14 MR. SCHECK:

MAY I MAKE THIS SUGGESTION? LET US SHOW THE TAPE UP TO THE POINT THAT YOU SEE HIS BLUE PANTS AND BLACK SHOES BECAUSE THERE'S NO CONTACT THERE. THAT'S CONTINUOUS. SHOWS HER PUTTING THE BAG TO THE SIDE, SHOWS MR. JACOBO IN HIS SHOES, THE BLUE PANTS, BLACK SHOES. THAT'S PLAINLY HIM. I THINK WE ARE ENTITLED TO IMPEACH HIM.

# 15 THE COURT:

NO. I'M GOING TO SUSTAIN A FOUNDATIONAL OBJECTION AT THIS TIME. IF YOU CAN BRING SOMEBODY IN TO LAY A FOUNDATION FOR THE TAPE, WHAT TOOK PLACE, WHO WAS THERE --

# 16 MR. SCHECK:

BUT, YOUR HONOR, THE ONE PARTICULAR SECTION I'M TALKING ABOUT, FORGETTING THE REST OF IT -- I MEAN, I THINK THIS IS ALREADY IN EVIDENCE. IF I CAN GO BACK AND LOOK AT THE ORIGINAL --

# 17 THE COURT:

YOU ARE GOING TO CUT IT?

# 18 MR. SCHECK:

CUT IT AT THE POINT WHERE YOU SEE HER PUTTING THE OTHER THINGS DOWN AND THEN WE SEE HIS BLUE PANTS AND BLACK SHOES, CONTINUOUS SHOT. THERE'S NO CUT THERE. IT'S MISTAKENLY. I THINK WE HAVE THE RIGHT TO CONFRONT HIM ON THIS BECAUSE IT'S PURPOSEFUL AND VERY FAIR IMPEACHMENT. THERE'S NO WAY --

# 19 THE COURT:

CUT IT THERE.

# 20 MR. GOLDBERG:

YOUR HONOR, CAN I BE HEARD?

# 21 THE COURT:

WHAT? WHAT?

# 22 MR. GOLDBERG:

YOUR HONOR, WHAT WE ARE SAYING IS, THERE ARE THREE CUTS IN THERE.

# 23 THE COURT:

ONLY THAT ONE CONTINUOUS FIRST SHOT. THAT'S IT.

# 24 MR. GOLDBERG:

IT IS NOT CONTINUOUS, YOUR HONOR. IT APPEARS THERE IS A CUT BETWEEN MISS MAZZOLA PUTTING DOWN THE LAST BAG --

# 25 THE COURT:

HE IS ENTITLED TO HAVE THAT ONE SHOT.

KEY QUOTE

Temperature

tense

Key Quotes (4)

Hank Goldberg

WHY DO THEY GET TO EDIT THESE TAPES AND PUT THEM TOGETHER ANY WAY THEY WANT, TO APPLY THEM WHATEVER ORDER THEY WANT, FOR WHATEVER PURPOSE THEY WANT. IT SHOULD NOT BE ALLOWED.

Frames the prosecution's core objection — that the defense has essentially authored their own evidence by cutting and arranging footage without oversight.

Barry Scheck

IT DOES LOOP. WHAT HAPPENED, IT WAS PUT ON LASER DISK. IT LOOPED BACK ONE TIME. IT SHOWS THE SHOT OF JACOBO FULL BODIED TWICE. THAT'S THE WAY THIS PARTICULAR DISK WAS PRINTED.

Scheck concedes the tape loops — an acknowledgment that directly triggered Ito's foundational concern and effectively handed Goldberg part of his argument.

Lance A. Ito

THAT CAUSES ME TO HAVE FOUNDATIONAL CONCERNS. PERHAPS THE ISSUE IS WHAT TOOK PLACE FIRST, AND BECAUSE I SEE JUMPS IN IT, I THINK I'M GOING TO SUSTAIN A FOUNDATIONAL OBJECTION.

The ruling that kills most of the tape — judge sees the looping himself and rules on authenticity grounds.

Lance A. Ito

HE IS ENTITLED TO HAVE THAT ONE SHOT.

Ito's final word — a narrow concession to Scheck allowing only the single unedited continuous segment despite prosecution's continued objection.

Evidence (1)

Informal

Videotape/laser disk of crime scene evidence collection, showing Andrea Mazzola and Mr. Jacobo at the scene; defense had pared it down from a two-volume set per court instructions

challenged on foundational grounds; mostly excluded, one continuous segment allowed

Notable Exchanges (2)

Barry Scheck•Lance A. Ito

Scheck tries to salvage the tape by progressively narrowing his ask — first the whole tape, then up to the blue pants/black shoes shot — while Ito probes the looping issue and ultimately grants only the single continuous segment.

strategic

Hank Goldberg•Lance A. Ito

After Ito rules for Scheck on the one segment, Goldberg tries to argue again that even that shot has a cut; Ito cuts him off with 'HE IS ENTITLED TO HAVE THAT ONE SHOT.'

terse

Light Moments (1)

Lance A. Ito

After Clark asks for a moment to confer, Ito simply says 'SURE' — small beat of calm before Goldberg comes back with a more elaborate argument about three cuts.

Credibility Attacks (2)

⚔ Mr. Jacobo

videotape impeachment

Scheck sought to use the footage to contradict Jacobo's testimony that evidence collection had not begun until after the coroners left, arguing the tape showed him present earlier — identifiable by blue pants and black shoes.

⚔ Andrea Mazzola

videotape impeachment

Goldberg noted Mazzola 'vanishes into thin air' between tape segments, using her disappearance as evidence of a cut and thus undermining the tape's credibility as continuous footage.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5636 • 25 utterances

Criminal Trial

Department 103