Sidebar (3)

📄 Sidebar (3) — Friday, April 14, 1995

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C:\DEPT103\CRIMINAL\1995\APR\14\SIDEBAR-3-.DOC

TRIAL

▲ Day 57 of 167

◀ Cross-examination of Dennis Fung (part 3) Cross-examination of Dennis Fung (part 4) ▶

Date: Friday, April 14, 1995 • Utterances: 45

At the bench during redirect of Dennis Fung, the prosecution sought to introduce a KABC news videotape with a time code to establish sequence of events. The defense objected on foundational grounds, noting they had barely seen the tape and that the time code might be off by up to five minutes. Judge Ito sustained the foundational objection, ruling the prosecution needed to properly establish the time code's accuracy — potentially through a hearing outside the jury — before the tape could be admitted.

# 1 (The following proceedings were held at the bench:)

# 2 MR. COCHRAN:

Your Honor, we would lodge an objection. We have a two-lawyer rule, Judge.

# 3 THE COURT:

Two lawyers. Bye-bye.

KEY QUOTE

# 4 MS. CLARK:

No. Okay. I just wanted to give him this. Okay. Bye.

# 5 MR. DARDEN:

I have information Mr. Goldman doesn't have. Would you rather that I discuss it with him first or you want me to just tell you?

# 6 THE COURT:

Hold on. Which videotape is this?

# 7 MR. GOLDBERG:

This is the videotape we received last night, your Honor.

# 8 THE COURT:

Channel 7 videotape that we reviewed?

# 9 MR. GOLDBERG:

Yes. We reviewed.

# 10 MR. COCHRAN:

We have an objection. And Mr. Darden asked Mr. Douglas who asked me about it. We said we have an objection. Talk about grandstanding. How is this any different from anything else? We saw this only last night. We've not had a chance to look at it. We need time to look at it. I told him that already.

# 11 MR. DARDEN:

You're talking about two completely different things, Mr. Cochran.

# 12 MR. COCHRAN:

Well, I indicated we were talking about the videotape last night.

# 13 MR. DARDEN:

The information I was given was that KABC was sending over to both sides copies of raw footage from that date with the time stamp on it. So I gave Carl notice saying they were going to do that, and I just wanted you to know so you don't accuse me of a discovery violation later. Then Carl sent me a note as to the raw footage saying they would lodge a foundational objection.

# 14 MR. COCHRAN:

We lodged an objection to that. We need more time to take a look at that. We haven't had a chance to look at that. We saw it very briefly with the Court. We need time to do that.

# 15 MR. SCHECK:

I don't think it's necessary, but Mr. Douglas advises me that he spoke to the person at KABC and that they may be off on the times at a range of five minutes. In the final analysis, I don't think this is going to matter much, but, you know, we want to be sure and cautious about it. And we already have a representation from the originator of it that there are foundation problems, particularly if they are going to offer it for purposes of time.

KEY QUOTE

# 16 THE COURT:

Mr. Goldberg, are you offering this because of the counter and sequence of events?

# 17 MR. GOLDBERG:

That's one of the reasons, yes, sequence of events.

# 18 THE COURT:

Don't you think you need a foundation?

# 19 MR. GOLDBERG:

Well, your Honor, we didn't have a foundation for the Defense videotape, and it's in the same sequence that they said.

# 20 THE COURT:

But if you recall, we had a hearing outside the presence of the jury so your witness could say which one was in which order. The problem we have here is that you're going to offer this videotape probably for the time that's related in the counter.

# 21 MR. GOLDBERG:

Right.

# 22 THE COURT:

So you need foundation for that is the point.

# 23 MR. GOLDBERG:

Your Honor, all we can give your Honor is an offer of proof saying we contacted people who say the counter is maybe five minutes off. I think we both agree that probably wouldn't be material to the issues in this case.

# 24 MR. COCHRAN:

Well, we still need that person. That's the person we need, and we shouldn't deviate from the procedure done with all videotapes. We have the right to a hearing. That's what we want. We want a hearing on this issue before we proceed.

# 25 MR. DARDEN:

Okay. Can I advise the Court of some information I just got?

# 26 MR. COCHRAN:

Sure.

# 27 THE COURT:

Thank you, Mr. Cochran. You said sure.

# 28 MR. COCHRAN:

I'll shut up. Excuse me, your Honor.

# 29 THE COURT:

I'll just go sit down and you guys--

# 30 MR. COCHRAN:

No. I want you to stay right here.

# 31 MR. DARDEN:

Susan sent me a note. KABC in trying to beat land speeds to deliver the tape sent three copies to the Court. Two are beta, one for us, one for the Defense, and the third will be VHS and can be played in Court with the time code showing. The Beta copies have the original time code sequence interned upon them, but it is not visible without the use of clear-playing equipment with the necessary reading device; and the VHS version, the time code is readily visible. As I understand it, Mark Cougan was present and directed--

# 32 THE COURT:

Photographer? Videographer?

# 33 MR. DARDEN:

The videographer puts the time code on and can vouch for the time and sequence, and that is what KABC has advised Pat Childs, and that's what she advised us.

# 34 THE COURT:

The point is, they're entitled to at least a hearing outside the presence of the jury establishing these things. Not that I don't accept what you have represented to me, but they are entitled to that.

# 35 MR. SCHECK:

Your Honor, I just want to make it clear it's not that I don't accept it either, the final analysis. But if the information that we have may be off by some measure, by only a minute, we just want to know that. Maybe it won't require a hearing.

# 36 THE COURT:

I agree. But you're entitled to review it and you're entitled to have them lay a foundation, especially if the precise time is what we are interested in here.

# 37 MR. SCHECK:

We may be able to proceed by way of stipulation and not waste your time.

# 38 THE COURT:

Do you want to talk amongst yourselves?

# 39 MR. SCHECK:

No. Once we talk to the people from ABC.

# 40 MR. COCHRAN:

Can I mention one thing, address one other issue? On cross-examination, we spent a lot of time--they're misleading the jurors. Some of these things really isn't fair. That when you have a hearing, they have--you made a ruling about they intentionally withhold something. We would have to--

# 41 THE COURT:

Let's not revisit that at this point.

# 42 MR. COCHRAN:

Can we revisit it before the end of the day?

# 43 THE COURT:

I've already ruled. You're asking me to revisit it now. I've ruled.

# 44 MR. COCHRAN:

You ruled and they--well, all right.

# 45 THE COURT:

I'm going to sustain a foundational objection at this point to the videotape.

KEY QUOTE

Temperature

tense

Key Quotes (4)

Lance A. Ito

Two lawyers. Bye-bye.

Ito enforces the two-counsel-per-side bench rule, dismissing Marcia Clark with characteristic bluntness before the substantive argument begins.

Johnnie Cochran

Talk about grandstanding. How is this any different from anything else? We saw this only last night. We've not had a chance to look at it.

Cochran frames the prosecution's last-minute tape introduction as a procedural ambush, using the word 'grandstanding' to put Darden on the defensive.

Barry Scheck

I don't think it's necessary, but Mr. Douglas advises me that he spoke to the person at KABC and that they may be off on the times at a range of five minutes.

Scheck's key foundational attack — the time code accuracy is the entire probative value of the tape for the prosecution's sequence-of-events argument.

Lance A. Ito

I'm going to sustain a foundational objection at this point to the videotape.

The ruling ending the sidebar; the tape is excluded until proper foundation is laid.

Evidence (2)

Informal

KABC news videotape with embedded time code, received by prosecution the night before; offered to establish sequence and timing of events

challenged on foundation; admission blocked pending foundation hearing

Informal

Previously admitted defense videotape, referenced by Goldberg as basis for arguing no separate foundation was required for the KABC tape

discussed as procedural precedent

Notable Exchanges (3)

Christopher Darden•Johnnie Cochran

Darden explains he gave defense advance notice of the KABC tape precisely to avoid a discovery violation accusation; Cochran fires back that the defense still hasn't had adequate time to review it and calls the move grandstanding.

heated

Hank Goldberg•Lance A. Ito

Goldberg argues the defense's own videotape was admitted without a foundation hearing, so the same standard should apply here; Ito corrects him, noting there was a foundation hearing outside the jury for the defense tape and the prosecution needs the same — especially since they're offering the tape for its time code.

strategic

Johnnie Cochran•Lance A. Ito

At the tail end of the sidebar, Cochran tries to relitigate a prior ruling about the prosecution allegedly misleading jurors on cross-examination; Ito cuts him off twice, stating flatly 'I've already ruled.'

tense

Light Moments (2)

Lance A. Ito

After Cochran formally grants Darden the floor by saying 'Sure,' Ito dryly interjects: 'Thank you, Mr. Cochran. You said sure.' — gently mocking Cochran's habit of holding the floor.

Lance A. Ito

Ito threatens to abandon the bench entirely — 'I'll just go sit down and you guys--' — prompting Cochran to immediately backpedal: 'No. I want you to stay right here.'

Objections

3 objections (1 sustained, 0 overruled)

Proceeding 5708 • 45 utterances

Criminal Trial

Department 103