Back on the record in the Simpson matter. All parties are again present. The two items that, Mr. Neufeld, you requested, or the three items that are back, do you need any other time to set that up?
Your Honor, also there were some legal issues as to matters that they would like to use during cross-examination, but perhaps bring up before the jury comes back.
Just move it back so when the jury comes in, they don't have to step over it. Thank you. All right. Let's proceed. Let's have the jurors, please.
I don't understand. Well, one of the issues is the Defense would like to use a demonstration video that the Prosecution created, which is a video that was done simultaneously to the demonstration boards of the blood collection. And I don't object to the use of the video portion of the tape, per say, although it is probably not relevant, but there is an audio portion of the tape that basically doesn't pertain to anything other than my own conversations with the cameraman and with one of the criminalists as to how best to create that evidence, how best to edit it, how best to present it to the jury, and we ended up never using it. Probably I should not have released those comments to the Defense on the ground that they are privileged work product, but I was confident that there was so little to them that I just gave them the entire tape and didn't realize until later that I shouldn't have done so.
But at any rate, I don't see any relevancy to them and I don't know why counsel would want to play those.
Absolutely, your Honor, because--they are not just counsel's comments, your Honor; they are counsel's instructions to the witness on what to do at certain points. And not only is counsel giving instructions on what to do, but counsel is actually conveying certain important messages of bias to the witness during the course of that videotape.
Thank you, your Honor. I take it from what Mr. Goldberg said he is not objecting to the playing of the tape, he is objecting to the sound portion, so I will restrict my comment to the sound portion. Your Honor, the portion I believe Mr. Goldberg is concerned with and doesn't want to be played for the jury goes as follows, we made actually a transcript of the one small segment which we believe is certainly relevant and should be played to the jury. And although we are not opposed to playing the rest of the sound track, it goes like this: By Mr. Goldberg. "Is there any way we can get out that little part where she dropped some of the swatches? "Answer: I don't think I got it. "MR. GOLDBERG: Oh, you didn't?" Then by the camera operator: "But if it is on there, it is on there. "MR. GOLDBERG: No. I mean is there any way you can edit it out? "Camera: Of course. If it is on there, I will edit it out." By Mr. Goldberg. "But then will you have a gap? "Camera: No, it will be like two pieces of video cut together."
Clearly this is all going to this discussion what about to do with Miss Mazzola dropping the swatches going on on camera is going on in her presence. No question about that, although I will certainly ask the proper foundational questions when she testifies. It is our position, your Honor, that the Prosecution is sending a message to Miss Mazzola that they want to, in this entire evidence collection process, make it seem as simple as possible and no accidents can possibly occur, that as Miss Clark said in her opening statement, it is no different than wiping up a spill in the kitchen. That is exactly what they tied to do on direct examination as well of this witness and clearly the tape shows that it is more difficult, that things can go wrong.
In fact, your Honor, we would ask this witness whether--whether the reason that she said on the witness stand on direct examination that, yes, you can, I have dropped some swatches, but that doesn't matter, you just get rid of them, but denies having ever dropped a swatch with blood on it, is she was prepped in anticipation of the fact that this videotape would be played to the jury to admit that, yes, I do drop swatches sometimes because the jury was going to see that, but she didn't have to admit any of the other kind of mistakes that can occur because at least as to those mistakes we don't have a videotape record of it. So I would be permitted to ask her these questions to show her bias and to show her state of mind. And the fact of the matter is that she what is sitting there, she heard all this said by Mr. Goldberg, he is the Prosecutor, and it is to influence her, the way she deals with the whole issue of making mistakes at an actual crime scene, and that is why it is admissible. One second.
Well, I guess I'm not going to be winning the award at the Cannes Film Festival this year.
KEY QUOTEIt is kind of like watching ice cream melt, and I don't mean Haagen Das. And your Honor, what I've heard from the Defense here is really absurd and I think it is fairly clear what they are trying to do, and it should not be permitted, and what we have here is where the People are creating a piece of demonstrative evidence. And that is all that this is. It is clear from all of my comments that that is going on, including comments like "You don't need to collect more than one swatch because one is enough for them to get the general idea" or "Can you please turn this way so we can get a better shot of you filling out the card." We are entitled to create this piece of evidence and make it as perfect as we like. We are entitled, as I at one point thought of doing, adding graphics, adding sound, subtracting from the tape, adding to the tape. I could have scored it to the theme music of mission impossible if I had wanted to, which I actually thought of doing.
We are entitled to create this any way we want to and what counsel is really trying to do is he is trying to suggest that there is something wrong or untoward that has gone on here in terms of the creation of this documentary piece of evidence. The distinction is that we are not documenting an event. We are not trying to record a historical event. What we are trying to illustrate--
Isn't the issue, though, work product and demonstration of demonstrative evidence? Isn't that the issue?
I realize this, your Honor, and it is work product and I believed this was the kind of thing that Defense would not try to use that, there was no reason to redact it out, and then subsequently changed my mind after the tape had already been released to them. And in a convoluted series of facts that we need not to get into, I don't think it is relevant, I'm sure Mr. Neufeld would agree, and I probably should have, and it is my work product and my discussion and creation of an exhibit. And more importantly it is not relevant. I point out what we have in a chronology is where we have a situation that I talked about doing something that I'm entirely within my rights to do, but did not do, and maintained the evidence unedited and then turned it over unedited to the Defense. So the idea that they would come forward and try to argue that there is some impropriety where we have a situation where I am discussing doing something that I am entitled to do that I didn't do, and the only reason they know I even discussed it is because I turned it over for them and maintained it, and for them now to try to introduce this into this case as an issue is grossly improper and should not be allowed and it doesn't have any relevance whatsoever.
Fine. Two things, your Honor. Just so the record at least on how this tape is received is clear, in fact--
The issue is how you get over the work product problem and how do you get over a 352 objection.
Well, it is not work product, your Honor, because what we are introducing it for is simply his statements in the presence of this witness to influence her testimony on the witness stand. And any statements that a lawyer makes in the presence of a witness, which has the effect of influencing her testimony, is admissible because it goes to her bias. That is how it comes in. And even if it wasn't his intent, even if it wasn't his deliberate intent to influence her testimony, it has that effect and we are allowed to argue that it has this effect to this jury. That is an inference that they are permitted to draw. Clearly the statements were made in her presence. That is the point. That is not work product. And in terms of 352, I don't see that as a big problem here, your Honor, because certainly it has probative value as to whether or not he said in her presence, you know, let's try and get rid of the portion where you are making this mistake, where you are dropping these swatches. That is a very important message being conveyed to her that the Prosecution in this case wants to make this whole procedure look as simple as possible and wants to cover up any kind of mistakes that can and do happen.
They gave me the tape and they didn't even know it had the sound track on it. Initially I thought it was silent as well and he was going to edit out his comments, your Honor, and then we played it up and we found the volume was there. That is why. The reason he turned over the tape, your Honor, is because you ordered him to. You may recall we went into chambers and he said he had this tape and I laid a foundation with you and you said, "Mr. Goldberg, turn over this tape now."
I understand that, your Honor. If he wants to, I can agree to eliminate the other comments on the tape, but I believe that comment, which is all of--the whole discussion lasts about one minute, and I think I read to you the text of it into the record, is certainly probative, relevant evidence for this witness to show that her testimony here has been influenced by bias and the bias was generated in part by the statements made by Mr. Goldberg in her presence that we don't want to show this jury instances where swatches get dropped. That is what it goes to. It goes to her state of mind and that is not work product privilege at all.
All right. Thank you, counsel. All right. The objection will be sustained as work product. Also under 352, since the probative value of the evidence is tangential at best and it is confusing, it is hard to hear as well. All right. Let's have the jury. Let's have Miss Mazzola.
Because there were certain misstatements that were made as to how the tapes were released.
I guess I'm not going to be winning the award at the Cannes Film Festival this year.
I would say Morris Dees is not shaking in his boots.
Is there any way we can get out that little part where she dropped some of the swatches? ... MR. GOLDBERG: No. I mean is there any way you can edit it out?
Which is why they gave you the tape with her dropping the swatches.
Sit down, Mr. Goldberg. Let's have Miss Mazzola.