Sidebar: tape evidence ruling

📄 Sidebar: tape evidence ruling — Thursday, April 27, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\27\SIDEBAR-TAPE-EVIDENCE-RULING.DOC

TRIAL

▲ Day 63 of 167

◀ Redirect examination of Andrea Mazzola (part 2) Recross-examination of Andrea Mazzola (part 1) ▶

Date: Thursday, April 27, 1995 • Utterances: 19

Defense attorney Peter Neufeld argued that prosecutor Goldberg opened the door to playing the audio portion of a demonstration tape by eliciting testimony from witness Mazzola that no one ever suggested hiding the fallen swatches from the jury. Neufeld contended the tape captured Goldberg asking to edit out exactly that portion of the video, directly contradicting his own redirect examination. Judge Ito denied the request, stating the court's previous ruling stands.

# 1 (The following proceedings were held in open Court, out of the presence of the jury:)

# 2 THE COURT:

Back on the record in the Simpson matter. All parties are present. Good morning, Mr. Dixon.

# 3 MR. DIXON:

Good morning, your Honor.

# 4 THE COURT:

All right. Let's have the jurors, please.

# 5 MR. NEUFELD:

Your Honor, I just wanted to make one point which I believe that Mr. Goldberg opened the door to me playing the audio portion of the demonstration tape. He elicited a series of answers from Miss Mazzola about no one ever suggested to her that she shouldn't mention the swatches, that we would be willing to show the swatches, it is not a problem. It is not something we are trying to cover up.

# 6 THE COURT:

Yes, I recollect the testimony.

# 7 MR. NEUFELD:

Okay. And yet in fact what we have on the videotape and the audiotape--audio portion of the videotape, is Mr. Goldberg in her presence saying--saying, you know, "Can we get rid of that portion of the videotape?"

# 8 THE COURT:

Can we edit that out.

KEY QUOTE

# 9 MR. NEUFELD:

What?

# 10 THE COURT:

His comment was, "Can we edit it out?"

# 11 MR. NEUFELD:

Can we make an edit of it and Mr. Goldberg said, "Then there will be a gap, won't there," and then the cameraman said, "No, no, no, we will make it clean."

# 12 THE COURT:

So you are still suggesting the conversation of counsel regarding the preparation of demonstrative evidence should come in before the jury?

# 13 MR. NEUFELD:

I'm saying since she was present for those comments of Mr. Goldberg it directly contradicts the suggestion that Mr. Goldberg made to this jury to this witness on redirect that no, we had never suggested to you that these fallen swatches should be kept away from the jury, something we don't want to see, when clearly the opposite is true.

# 14 THE COURT:

All right. Thank you, counsel. All right. The Court's previous ruling stands. Let's have the jury.

# 15 (Brief pause.)

# 16 THE COURT:

And we will call this cross completion. And Mr. Goldberg, you have all the items here?

# 17 MR. GOLDBERG:

Excuse me, your Honor?

# 18 THE COURT:

You have all those items here?

# 19 MR. GOLDBERG:

Yes.

Temperature

tense

Key Quotes (4)

Peter Neufeld

He elicited a series of answers from Miss Mazzola about no one ever suggested to her that she shouldn't mention the swatches, that we would be willing to show the swatches, it is not a problem. It is not something we are trying to cover up.

Neufeld summarizes the contradiction he is exploiting — Goldberg's own redirect testimony set up the impeachment opportunity.

Peter Neufeld

Mr. Goldberg in her presence saying, 'Can we get rid of that portion of the videotape?'

The core allegation: Goldberg was recorded asking to remove evidence of the fallen swatches from the demonstration tape.

Lance A. Ito

Can we edit that out.

The judge's precise correction of Neufeld's paraphrase signals he had already reviewed the tape and knew the exact wording.

Lance A. Ito

The Court's previous ruling stands. Let's have the jury.

Terse denial with no elaboration — Ito was characteristically brief in shutting down the argument.

Evidence (2)

Informal

Demonstration videotape with audio portion showing Goldberg asking to edit out the fallen swatches segment

discussed, admission sought and denied

Informal

Fallen swatches — physical evidence referenced in the edited portion of the tape

discussed

Notable Exchanges (2)

Peter Neufeld•Lance A. Ito

Ito corrected Neufeld mid-argument on the exact wording of Goldberg's request on the tape — 'Can we edit it out' rather than 'Can we get rid of that portion' — revealing the judge had already heard or reviewed the tape himself.

strategic

Peter Neufeld•Lance A. Ito

Neufeld laid out the door-opening argument in detail; Ito acknowledged recollecting the testimony, then denied the motion with a single sentence.

procedural

Credibility Attacks (1)

⚔ Hank Goldberg

prior inconsistent statement via recorded audio

Neufeld argued Goldberg's own recorded request to edit the demonstration tape contradicted the impression he created on redirect that the prosecution had nothing to hide about the fallen swatches.

Objections

None recorded

Proceeding 5837 • 19 utterances

Criminal Trial

Department 103