All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Mr. Goldberg, have you had the opportunity to review the various videotapes?
Yes, your Honor, and I would thank the Court for giving us that opportunity. I apologize that it took an attorney's thirty minutes.
Your Honor, last evening, when I had an opportunity to look at the tapes briefly, we objected on the grounds of relevance. It appears to me that the tapes, in terms of the events that they portray, are not material in the sense of not going to any contested issue in this case. If you simply look at the events portrayed thereon, they are not inconsistent in any way with Mr. Fung's testimony. We made a similar argument, or I think that identical argument, in fact, last night. Mr. Fung testified that he took several items out to the truck. He said that the blood could have been packaged in a number of different ways, including in a brown paper bag or I think what he said was a posse box, and then he had a third way and he wasn't really sure.
So there is nothing in terms of the tape itself that is material that contradicts him. Upon very careful review of the tapes it is apparent to us that what the Defense wants to try to do is not to introduce the tapes for the materiality of the events that are portrayed, but rather for the time sequence, and that is where we have a tremendous difficulty with these tapes, your Honor, particularly on 1101 and 1103, which I would like the Court, if the Court would be willing to do so, to take another look at with several things in mind. As to 1101, what you will see on that tape is at first Mr. Fung comes out with the various bags, the brown paper bags and the large black type kit, and Miss Mazzola is handling the same item, type of item. The next item is that there is a cut, a distinct cut and break in that tape, and then Mr. Vannatter arrives in his vehicle. And then the third thing that happens is there is a showing of Andrea Mazzola and Mr. Fung, this is a third cut, coming out of the location, and Andrea Mazzola is handling what appears to be a garbage bag with some sort of an item or items in it. Perhaps we could look at that, your Honor, at this point.
Your Honor, just to save some time, we only are offering the first part of it. If Mr. Goldberg is going to argue now that--we are not offering Mr. Vannatter getting out of his car. Frankly, we would readily concede that that is a cut, and in terms of the way I have reconstructed events and what I put to the witness, that is Mr. Vannatter is arriving after--in other words, that shot is out of order, if that is a problem, but I just want to note for the record that in terms of what we are offering from that tape, we are not offering--
Okay. And the third item--what that tape showed is it shows Mr. Fung with all the bags, it shows Phil Vannatter arriving, but it does not show the sequence of Andrea Mazzola coming out afterwards. If the Court then compares that to tape no. 1103, 1103 shows Mr. Vannatter arriving first and then it shows Mr. Fung walking out with all of the items in the brown paper bag and the large boxes. And then the third item that that shows is the scene of Andrea Mazzola coming out with the plastic bag. Now, if counsel is not offering 1101 for any purpose other than to show Mr. Fung carrying out all the bags, then it does not have any relevance at all. It seemed to me that what they are trying to do is get a sequence or an order, and we have two different tapes, 1101 and 1103, that depict an entirely different sequence. And how are we supposed to know which order those occurred in?
I believe that is the gravamen of the reason that they are introducing these tapes, and if that is true, it is extremely misleading to the witness and to the jury for the Defense to be able to make assumptions as to when these events occurred and to present them in whatever order they feel benefits their side, particularly when we have two different tapes that are cut in a very different sequence. I would also point out, your Honor, that it seems to be entirely without foundation, if they are intending to ask Mr. Fung about the sequence in the tape no. 1103 showing Mr. Vannatter arriving, to ask him about something that he would not have seen, that there is no foundation that he saw.
So we are objecting, your Honor, on the grounds of relevance, materiality. We are also objecting under 352 that this is extremely misleading, that this is prejudicial, that the jury should not see something where the issue is the order of events when we do not know what the order is, cannot determine what the order is and we have two different tapes that have been cut in two different sequences. And it also has the danger of misleading this witness because he doesn't know and hasn't seen the tapes and doesn't know what order they were cut in.
Well, as to 1102, what 1102 shows is simply Andrea Mazzola coming out and Dennis Fung coming out at some point with the plastic bag. Again, an event which in and of itself has no materiality. I don't know whether the Defense is offering that for some sequencing purpose. If they are, then we have the same objection that we don't know what the sequence of these three events are. 1104 contains shots of Detective Lange holding what appears to be a search warrant in the area immediately before the entry to the Defendant's house where stains--in the approximate area where stains 7 and 8 were found on the brick portion of the entry area. And again, it is not material, there is no showing that Mr. Fung was there at that time or saw that. But it appears, your Honor, that what the Defense is trying to do is there are essentially three things that are going on when you boil these tapes down.
No. 1, at some point, whenever it is, Detective Vannatter arrives. At some point, whenever it is, Mr. Fung and Miss Mazzola come out with a variety of items, including the brown paper bags and the large black boxes. At some point, in whatever sequence it is, Andrea Mazzola comes out carrying a trash bag and Mr. Fung is accompanying her. But the issue is sequence and there is no way that we can tell from these four tapes what the sequence is. We would ask the Court to require the Defense to lay the same kind of foundation that the People have been previously required to lay when the issue is timing, when the issue is sequence, particularly whereas here the tapes are edited in two different fashions.
Your Honor, I think the Court has been--been as generous as one could be under these circumstances. The Prosecution has had a considerable period to look at every tape we have. They have had Detective Vannatter back there looking at it with them. I'm sure they have discussed it with everybody they can. I think that all these issues go to weight, not admissibility. I think that we should be allowed to show everything to this witness who was there to try to sort through what happened when, the sequence of events. He is there. I want to show him the tapes. I want him to give us the order, if he possibly can, and explore that with him. Umm, with respect to, umm, Detective Vannatter, I asked him some questions already about whether he recalled Detective Vannatter carrying a black duffel bag and a clipboard when he saw him. I think that we should be allowed to show him that tape of Detective Vannatter getting out of the car, show them all the sequences and let's try to do it through the witnesses. Let's try to get to the truth, because that is really what this is all about. Now, there is nothing more that we can do. We would like to get every tape we could, but between showing the videotapes of the events as they actually transpired, letting the witnesses see it, letting the witnesses tell us to the best of their recollection what happened when, we can try to reconstruct the truth of these events. That is all that we are proposing to do. On redirect examination, on the rest of their case, we can recall Detective Vannatter, they can recall Detective Lange, they can do whatever they want to try to straighten this out.
Mr. Scheck, as to 1103, are you going to offer the portion with Vannatter's arrival at Rockingham?
It had not been our intention to offer that particular segment. If they want it, they can, because what we showed the Court were two different pieces of footage of Vannatter arriving that are more complete.
Let me be clear on what it is what you are proposing to offer. On 1101 it is merely Fung and Mazzola walking to the truck, correct?
Could I just see--they have the tapes. Could I just see the tapes, because they have my notations on them. I even gave them my work product.
That's correct. What we intend to show are the two more complete shots of Vannatter. We are not going to show it on 1101, but on 1102--
1103, we would show the witness the two shots of Vannatter arriving, one where you can't see what is in his hand, and the other one where you can, just for purposes of completeness so that everybody gets to see everything.
Yeah. My--this is the tape that has the complete shot, in my recollection, of Fung and Mazzola going back into Rockingham, so we were going to show that entire sequence, and we were going to show Detective Vannatter arriving, but this is the shot where you can't see the bag. And 1103 we were going to reshow the shot where you can see the bag as he is getting out of the car and what is in his hands.
1104 I think is the--I think is the--we are going to show the section of Fung and Mazzola leaving Rockingham. This time Mr. Fung has no bags in his hands and Miss Mazzola has the trash bag. The value of this shot is that we see them starting at the front door and coming down the driveway and that was the part we were going to offer from 11--
1104 also has that gathering out front with Lange--excuse me. With Lange, yes, Detective Lange and Detective Vannatter. Are you offering that portion?
And just to be clear, your Honor, on 1103 we are going to show the sequence where Fung and Mazzola are walking out of the driveway. Mr. Fung doesn't have anything in his hands except maybe a pen or something, and Miss Mazzola has that trash bag, but this time you get to see them walking further down the sidewalk towards their van.
Yes, your Honor. Well, it has become absolutely apparent from what counsel says that the sequence is exactly what he does want to use these tapes to do. And how can you take--
Let me ask you this: First of all, do you have an objection--what is your objection to the tape segments that depict only Mr. Fung and Miss Mazzola in their travels in and out of Rockingham on the 13th?
The objection, your Honor, is that it is immaterial in the sense that in and of itself all you have is a picture of them coming out and if you are not making any suggestion to this jury whatsoever as to what order it came in, then it is immaterial. The only materiality of it and the only argument that counsel has made is that he wants to resolve order, the sequence, and how on earth can that be done with a tape that has been cut, where we have another tape that presents it in an entirely different sequence? The only issue that counsel is offering this tape on, your Honor, is something that we cannot resolve from the tape.
That is my specific objection, that it is not material, that it should be precluded under 352 and that there must be a foundation.
If the Court--if we were trying to offer a piece of evidence on the issue of sequencing and timing and we did try to do this, and we did do this, we had to call the cameraman. The cameraman can testify perhaps the sequence that these events occurred in; Mr. Fung cannot from the videotapes. And if what they are trying to do simply is to resolve the issue of sequence, you can do that by questioning the witness; you don't need the videotapes. The videotapes do not shed any light, do not do anything except confuse and mislead the jury and the witness, and it is not legally permissible to do that under 352, under relevance, under foundation. You know, Mr. Scheck argues, well, you know, when he is addressing the Court legally, I want to do it. "I want to do it" is not an exception or is not a provision in the evidence code.
So you are saying that because of the cuts you can't tell which sequence takes--occurs first, the coming out with the trash bag and coming out with the catalogue cases?
You can't tell which occurs first. These tapes in no way shed any light on that issue and will confuse that issue. That is our objection.
Well, you can tell and we will find out when we question the witness, he was there, and he can tell us, but you can tell which is first and which is second, we contend, and we are going to prove it and we have a right to prove it.
Well, no. I think when you say the cut, which cut are you referring to, your Honor?
Well, you have Fung and Mazzola going to the truck, placing items in the truck and then turning around and walking back down the parkway. There is a cut.
All right. Then you have them coming out again from the Rockingham address, Fung without anything and Mazzola with a plastic bag.
That is the issue. Maybe the witness can help us. It is up to the witness. How else are we going to find it out? They have been speaking to Detective Vannatter, they have been speaking to everybody else.
We think we can do it through the witness and we think that that is the whole point. We are not hiding anything here. We are showing them everything. One can reconstruct the camera angles from the two different cameras as best one can. They can talk to the witnesses, they can put on any other witness after this is over to try to reconstruct events. Basically we are not using any misleading cuts. We are giving--they have had every opportunity to look at it. We are giving every camera angle that we have available that anyone has available, to our knowledge, of these events.
Your Honor, if it would assist you, I would ask once again that we approach very briefly and I can make an ex parte application and I think you will be satisfied.
I don't need you to do that at this point, Mr. Scheck. The question--the largest question I have is foundation, because if you are going to exhibit this to the jury.
Then there has got to be some authentication as to what came first, since obviously the sequence of these items is important to you.
All right. Then I propose we do that out of the presence of the jury first and see if he can lay a foundation for it, otherwise you can bring in the cameraman.
All right, your Honor. I give up. I really don't think that I should have to reveal this now. I really think that is wrong, but--
I am not asking you to do it. I'm saying if you want to lay the foundation with Fung or the cameraman out of the presence of the jury, you are welcome to do so. That is your option.
Your Honor, my apologies to the Court. I think that--the course you suggest is a wise one.
KEY QUOTEWe have two different tapes, 1101 and 1103, that depict an entirely different sequence. And how are we supposed to know which order those occurred in?
Let's try to get to the truth, because that is really what this is all about. Now, there is nothing more that we can do.
Mr. Scheck argues, well, you know, when he is addressing the Court legally, I want to do it. 'I want to do it' is not an exception or is not a provision in the evidence code.
Your Honor, my apologies to the Court. I think that—the course you suggest is a wise one.
Definitely not.