Sidebar: evidence collection

📄 Sidebar: evidence collection — Thursday, April 20, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\20\SIDEBAR-EVIDENCE-COLLECTION.DOC

TRIAL

▲ Day 60 of 167

◀ Direct examination of Andrea Mazzola (part 3) Direct examination of Andrea Mazzola (part 4) ▶

Date: Thursday, April 20, 1995 • Utterances: 28

A sidebar to negotiate what the prosecution can ask about evidence items 15 and 16 — an airline ticket and baggage claim — given a prior agreement not to offer them as exhibits. The parties settle on allowing questions about collection time and location but not the items' identities. The defense reveals they feel compelled to disclose the collection locations because the prosecution's prior references to the items created an impression the defense was hiding something.

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

# 2 THE COURT:

All right. Mr. Goldberg, what do you need to clarify?

# 3 MR. GOLDBERG:

Your Honor, I know on 15 and 16, the airline ticket and the baggage claim--

# 4 THE COURT:

Oh, no, not this again.

KEY QUOTE

# 5 MR. GOLDBERG:

That's why I wanted to approach, so I can make sure I'm not going to go--we've had testimony there was a 15 and 16 collected at 5 o'clock, but that's it, which from my view, it sort of went beyond the Court's--

# 6 MR. SCHECK:

What do you want to do? Maybe we won't have any objection. Just tell us what you want to do.

# 7 MR. GOLDBERG:

I was just going to ask her when 15 and 16 were collected, not ask what they were.

# 8 MR. NEUFELD:

We have no objection.

# 9 THE COURT:

Just that one question.

# 10 MR. GOLDBERG:

I should have brought the transcript up with me, but there's some inconsistent statements she makes regarding when she left the location. She thought it was shortly after 5:00, and it's based on the time of the collection of 15 and 16. There's reference in that transcript to collectively 15 and 16, the airline ticket. My proposal would be simply not to read that, redact that out.

# 11 (Discussion held off the record between Defense counsel.)

# 12 MR. NEUFELD:

Does the transcript--Hank, does the transcript refer to where it was collected from though?

# 13 MR. GOLDBERG:

Uh-uh. I don't think it does.

# 14 MR. NEUFELD:

I mean--

# 15 MR. GOLDBERG:

If it does, if it refers to anything else--

# 16 MR. NEUFELD:

No. I'm saying it's fine to bring out the location. In fact, just to take care of it now, if you don't bring it out, we will bring it out later on. Just items were collected in the bathroom and items were collected on the bench outside the front door.

# 17 THE COURT:

Okay. If they have no objection.

# 18 MR. GOLDBERG:

I don't know. I mean if it wasn't suppressed, it wasn't suppressed. But if it were suppressed, it's suppressed.

# 19 THE COURT:

No. What happened was, there was an agreement the People were not going to offer it rather than it being suppressed. But the objection has to be made by the Defense to suppress it or otherwise keep it out. If they have no objection, then I assume we can talk about it.

KEY QUOTE

# 20 MR. NEUFELD:

It's basically our decision--frankly, the way it was brought out on two separate occasions by the People as part of their direct case created an impression upon the jurors now there's something we're trying to hide rather. So it's only under that kind of pressure that we feel compelled to, you know, simply say where those items were.

# 21 THE COURT:

Keep your voice down. But it's a tactical decision on your part. So if that's your decision, that's fine with me.

# 22 MR. SCHECK:

In terms of the location and the item numbers.

# 23 THE COURT:

Right. Location and item numbers. That's correct. And then you intend on going into time and we're agreed you will just read the part that says item 15 and 16, not what they are, correct?

# 24 MR. GOLDBERG:

Yes. May I just have one moment?

# 25 (Discussion held off the record between the Deputy District Attorneys.)

# 26 MR. GOLDBERG:

Okay.

# 27 THE COURT:

Okay. Done.

# 28 THE COURT:

These are the most educational sidebars so far. All right. Thank you, counsel. Proceed.

KEY QUOTE

Temperature

procedural

Key Quotes (4)

Lance A. Ito

Oh, no, not this again.

Signals this issue had already been relitigated — the judge is visibly exasperated before the argument even begins.

Peter Neufeld

The way it was brought out on two separate occasions by the People as part of their direct case created an impression upon the jurors now there's something we're trying to hide rather. So it's only under that kind of pressure that we feel compelled to simply say where those items were.

Defense explains why they're now willing to disclose location — the prosecution's repeated references backfired tactically, forcing the defense's hand.

Lance A. Ito

What happened was, there was an agreement the People were not going to offer it rather than it being suppressed. But the objection has to be made by the Defense to suppress it or otherwise keep it out.

Clarifies the legal status of items 15 and 16 — not suppressed by court order, but withheld by prosecutorial agreement, meaning the defense controls whether they come in.

Lance A. Ito

These are the most educational sidebars so far.

Dry judicial humor closing the sidebar — suggests the back-and-forth negotiation was unusually instructive or circuitous.

Evidence (2)

Item 15

Airline ticket, collected at an unspecified location (bathroom or bench outside front door)

discussed — parties negotiate scope of permissible testimony about collection time and location

Item 16

Baggage claim, collected alongside item 15

discussed — same negotiation as item 15

Notable Exchanges (2)

Hank Goldberg•Peter Neufeld

Goldberg proposes asking only when items 15 and 16 were collected and redacting references to their identity; Neufeld not only agrees but announces the defense intends to proactively disclose the collection locations (bathroom and bench outside front door).

strategic

Peter Neufeld•Lance A. Ito

Neufeld explains the defense's tactical reversal — the prosecution's repeated inadvertent references to items 15 and 16 have already signaled something is being hidden, so disclosure of location is now the lesser harm.

revealing

Light Moments (2)

Lance A. Ito

Judge Ito closes the sidebar with 'These are the most educational sidebars so far,' suggesting dry amusement at the tortured negotiation over two items nobody wanted to fully disclose.

Lance A. Ito

Ito's immediate 'Oh, no, not this again' upon hearing Goldberg mention items 15 and 16.

Objections

None recorded

Proceeding 5783 • 28 utterances

Criminal Trial

Department 103