In chambers: videotape disclosure and blood test admissibility

📄 In chambers: videotape disclosure and blood test admissibility — Tuesday, April 4, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\4\IN-CHAMBERS-VIDEOTAPE-DISCLOSU.DOC

TRIAL

▲ Day 51 of 167

◀ Recess Motion: presumptive blood tests admissibility ▶

Date: Tuesday, April 4, 1995 • Utterances: 43

Prosecutor Hank Goldberg voluntarily disclosed the existence of a videotape of crime lab tech Andrea Mazzolla's blood-collection demonstration, prompted by the court's broad discovery order. The defense immediately sought its production for impeachment purposes, and Judge Ito ordered disclosure. The session also touched briefly on scheduling future motions and transitioned to an argument about presumptive blood test admissibility.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN CAMERA:)

# 2 THE COURT:

WE ARE IN CHAMBERS. MR. GOLDBERG, YOU HAD SOMETHING THAT YOU NEEDED TO --

# 3 MR. GOLDBERG:

YES. THERE WAS SOMETHING I WANTED TO DISCLOSE NOW IN LIGHT OF THE COURT'S ORDER OF DISCLOSING ALL VIDEOTAPES, REGARDLESS OF WHAT THEY WERE. IT SEEMS THAT THE COURT IS ESSENTIALLY SAYING EMPTY OUT THE CASE FILES, AND IN LIGHT OF THAT, I RECALL THAT WHEN WE DID THE DEMONSTRATION OF ANDREA MAZZOLLA COLLECTING BLOOD, ORIGINALLY I DECIDED THAT I WAS GOING TO VIDEOTAPE EVERYTHING AND I HAVE VIDEOTAPES OF PART OF THE DEMONSTRATION OR ALL OF THE DEMONSTRATION OF HER PART. AFTER THAT I DECIDED TO DISCONTINUE IT AND WE JUST CONTINUED WITH STILL PHOTOGRAPHY. I FELT THAT IN LIGHT OF WHAT THE COURT HAD SAID THAT IT WOULD BE APPROPRIATE TO MENTION THAT NOW. OBVIOUSLY OUR POSITION IS THAT IT DOESN'T FALL WITHIN ANY PROVISION OF THE DISCOVERY STATUTE AND IT ISN'T EXCULPATORY, BUT I FELT THAT IT SHOULD BE PUT ON THE RECORD RIGHT NOW.

# 4 THE COURT:

OKAY. GOSH, YOU HAD ME SCARED THERE FOR A MINUTE.

KEY QUOTE

# 5 MR. NEUFELD:

WE WOULD ASK THAT IT BE TURNED OVER SURELY FOR CROSS-EXAMINATION PRIVILEGES.

# 6 MS. CLARK:

THIS IS WORK PRODUCT, YOUR HONOR.

# 7 MR. NEUFELD:

NO, NO, NO. THEY PREPARED A DEMONSTRATION HERE AND THEY MADE CERTAIN PHOTOGRAPHS TO INVENTORY AND SHOW THE WAY IT IS DONE. IF THAT VIDEOTAPE IS ALSO AN ATTEMPT TO SHOWN THE WAY IT IS DONE AND IT IS INCONSISTENT IN ANY WAY WITH EITHER THE TESTIMONY OF MR. FUNG OR MISS MAZZOLLA OR THE PHOTOGRAPHS, WE ARE ENTITLED TO THAT BECAUSE THAT IS IMPEACHMENT MATERIAL.

# 8 THE COURT:

I DON'T KNOW.

# 9 MS. CLARK:

OH, NO.

# 10 MR. NEUFELD:

THEY ARE PUTTING FORWARD THIS DEMONSTRATION AS TO THE WAY THINGS ARE DONE. WHAT ARE THEY GOING TO DO IN FACT IF IT LOOKS LIKE SHE DIDN'T DO ANYTHING IN A STERILE FASHION ON THE VIDEOTAPE, AND SHE SCREWED UP THIS AND SCREWED UP THAT AND THEY DECIDE TO USE THE VIDEOTAPE, THAT HE WE ARE NOT ENTITLED TO USE THAT SO THEY ON ONE OCCASION FOR STILL PHOTOGRAPH THEY GET IT RIGHT BUT OTHER TIMES THEY DON'T?

# 11 THE COURT:

WELL, THIS IS THE SAME PROCESS, MR. GOLDBERG.

# 12 MR. GOLDBERG:

I'M SORRY.

# 13 THE COURT:

VIDEOTAPING THE SAME PHOTOGRAPHS THAT TURNED UP THE EXHIBIT?

# 14 MR. GOLDBERG:

IT WAS DONE SIMULTANEOUSLY. OH, THE EXHIBIT?

# 15 THE COURT:

YEAH.

# 16 MR. GOLDBERG:

I DON'T UNDERSTAND.

# 17 THE COURT:

IN OTHER WORDS, THE PHOTOGRAPHS DEPICT THE SAME THING THAT THE VIDEOTAPE DOES, THEY ARE DONE SIMULTANEOUSLY?

# 18 MR. GOLDBERG:

RIGHT.

# 19 THE COURT:

ALL RIGHT. WELL, I'M GOING TO REQUIRE ITS DISCLOSURE.

# 20 MR. SCHECK:

YOUR HONOR, MAY I JUST ADD A LEGAL POINT HERE, IF I MIGHT, AND THAT HAS TO DO WITH THE DIFFERENCE BETWEEN BAGLEY OVERRULING AGURS.

# 21 THE COURT:

NO, NO, NO. I'M NOT INTERESTED IN HEARING IT NOW. I'VE GOT A JURY THAT HAS BEEN SITTING. YOU GUYS SEEM TO FORGET.

KEY QUOTE

# 22 MR. SCHECK:

I DON'T.

# 23 MR. COCHRAN:

JUDGE, THAT IS ALL RIGHT. LET'S GO TO WORK.

# 24 THE COURT:

NO, NO, BECAUSE NOW WE'VE GOT TO GO ARGUE ABOUT PRESUMPTIVE BLOOD TESTS AND I THINK FROM NOW ON WE ARE GOING TO START ALL THESE HEARINGS AT 4:30 FROM NOW ON.

# 25 MR. COCHRAN:

THERE IS A PROBLEM AT 8:30 APPARENTLY.

# 26 THE COURT:

I UNDERSTAND THERE --

# 27 MR. COCHRAN:

WE WILL BE GLAD TO DO IT AT 8:30.

# 28 THE COURT:

THAT IS WHY ALL FURTHER EXTRANEOUS MOTIONS ARE GOING TO BE AT 4:30.

# 29 MR. COCHRAN:

OR WEDNESDAY AFTERNOON OR FRIDAY AFTERNOONS, IF YOU DECIDE. YOU KNOW, WE ARE OFF EARLY THOSE DAYS.

# 30 THE COURT:

OKAY.

# 31 MR. COCHRAN:

FOUR O'CLOCK ON WEDNESDAY.

# 32 THE COURT:

WELL, FOR EXAMPLE, FOUR O'CLOCK TOMORROW WE HAVE ALL THESE MOTIONS REGARDING THE CORONER'S REPORTS.

# 33 MR. COCHRAN:

OKAY. AND MAYBE WE WILL STOP PEOPLE FROM FILING MOTIONS. 1:30 ON FRIDAY.

# 34 THE COURT:

NO, NO. THIS CASE WILL GENERATE MORE UNUSUAL ODDBALL MOTIONS.

# 35 MS. CLARK:

I DON'T KNOW. I MEAN, YOU HAVE GOT MR. COCHRAN AND I PRETTY WELL CALMED DOWN.

KEY QUOTE

# 36 MR. COCHRAN:

WE HAVE BEEN TALKING ABOUT DE-ESCALATING AFTER THIS, HOPEFULLY.

# 37 MS. CLARK:

HE WANTS TO FIRE THE LAST SALVO ACROSS THE BOW.

# 38 THE COURT:

WE ARE NOT THERE YET. ALL RIGHT. LET'S GO OUT AND TALK ABOUT PRESUMPTIVE BLOOD TESTS.

# 39 MR. GOLDBERG:

YOUR HONOR, THERE WAS SOME PRESUMPTIVE BLOOD TESTS, A CITATION TO IMWINKELRIED, I WILL GET THE SPELLING, I-M-W-I-N-K-E-L-R-I-E-D, AND MY ASSISTANT BROUGHT IT DOWN. IT IS ONLY TWO PAGES LONG, BUT I WOULD LIKE TO PROVIDE THE COURT AND COUNSEL WITH A COPY BECAUSE HE JUST DISCUSSED THIS VERY BRIEFLY, FORENSIC BLOOD TESTING AND DISCUSSES CALIFORNIA LAW.

# 40 THE COURT:

ALL RIGHT. LET'S GO. THE PROBLEM IS WE ARE THERE, SO WE NEED TO DECIDE THIS NOW.

# 41 MR. GOLDBERG:

IT WILL TAKE THE COURT ABOUT TWO OR THREE MINUTES TO READ IT.

# 42 THE COURT:

OKAY. LET'S GO.

# 43 (AT 10:43 A.M. THE PROCEEDINGS IN CAMERA WERE CONCLUDED.)

Temperature

procedural

Key Quotes (4)

Lance A. Ito

OKAY. GOSH, YOU HAD ME SCARED THERE FOR A MINUTE.

Ito's relieved reaction reveals he anticipated something more damaging; sets a light tone for what became a routine disclosure.

Peter Neufeld

IF THAT VIDEOTAPE IS ALSO AN ATTEMPT TO SHOWN THE WAY IT IS DONE AND IT IS INCONSISTENT IN ANY WAY WITH EITHER THE TESTIMONY OF MR. FUNG OR MISS MAZZOLLA OR THE PHOTOGRAPHS, WE ARE ENTITLED TO THAT BECAUSE THAT IS IMPEACHMENT MATERIAL.

Defense frames the videotape as potential impeachment of prosecution witnesses, arguing the demonstration may reveal non-sterile or inconsistent technique.

Lance A. Ito

NO, NO, NO. I'M NOT INTERESTED IN HEARING IT NOW. I'VE GOT A JURY THAT HAS BEEN SITTING. YOU GUYS SEEM TO FORGET.

Ito cuts off Scheck's legal argument, reflecting his consistent frustration with counsel's disregard for jury time.

Marcia Clark

I DON'T KNOW. I MEAN, YOU HAVE GOT MR. COCHRAN AND I PRETTY WELL CALMED DOWN.

Rare moment of levity and collegiality between Clark and Cochran, suggesting tensions were easing at this stage.

Evidence (2)

Informal

Videotape of Andrea Mazzolla blood-collection demonstration, shot simultaneously with still photographs already in evidence

disclosed by prosecution, ordered produced by court

Informal

Citation to Imwinkelried treatise on forensic blood testing and California law (2 pages)

introduced by Goldberg for court and counsel review on presumptive blood test issue

Notable Exchanges (3)

Peter Neufeld•Marcia Clark

Clark asserted the Mazzolla videotape was work product; Neufeld argued it was impeachment material because the prosecution used the demonstration affirmatively, and any inconsistency with witness testimony or photographs would be discoverable.

strategic

Barry Scheck•Lance A. Ito

Scheck attempted to raise a legal argument about Bagley overruling Agurs (Brady materiality standards); Ito cut him off immediately citing the waiting jury.

tense

Johnnie Cochran•Lance A. Ito•Marcia Clark

After the disclosure ruling, the group negotiated future scheduling for extraneous motions, with Cochran and Clark both suggesting the parties were working to de-escalate the volume of motions.

light

Light Moments (3)

Lance A. Ito

Ito said 'GOSH, YOU HAD ME SCARED THERE FOR A MINUTE' after Goldberg's disclosure turned out to be relatively minor.

Marcia Clark

Clark quipped that Ito had 'MR. COCHRAN AND I PRETTY WELL CALMED DOWN,' with Cochran agreeing they had been 'TALKING ABOUT DE-ESCALATING.'

Lance A. Ito

Ito drily noted 'THIS CASE WILL GENERATE MORE UNUSUAL ODDBALL MOTIONS' when Cochran suggested capping filings.

Credibility Attacks (1)

⚔ Andrea Mazzolla

prior inconsistent act (potential)

Defense argued the Mazzolla videotape could reveal non-sterile or inconsistent blood-collection technique contradicting her testimony and the still photographs, and sought it specifically as impeachment material.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5584 • 43 utterances

Criminal Trial

Department 103