Motion: jury instructions and exhibit restrictions

📄 Motion: jury instructions and exhibit restrictions — Tuesday, April 4, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\4\MOTION-JURY-INSTRUCTIONS-AND-E.DOC

TRIAL

▲ Day 51 of 167

◀ Motion: presumptive blood tests admissibility Jury welcome ▶

Date: Tuesday, April 4, 1995 • Utterances: 42

Judge Ito ruled on exhibit restrictions (covering airline ticket and baggage tag on a prosecution exhibit) and set boundaries on how the defense could argue the absence of blood evidence without creating false impressions. Marcia Clark clashed with Ito over a proposed jury instruction from Dean Uelmen regarding Item 15, arguing she had never seen the written instruction before it was presented.

# 1 THE COURT:

NO. PROPONENT, PROPONENT, PROPONENT. ALL RIGHT. COUNSEL, AS TO THE -- I'M GOING TO DIRECT THE PROSECUTION TO COVER UP THE TWO PHOTOGRAPHS ON THE EXHIBIT. ALL RIGHT. THE TWO ITEMS THAT WERE MISSING -- EXCUSE ME -- THAT WERE AGREED NOT TO BE INTRODUCED IS THE AIRLINE TICKET AND WHAT, A BAGGAGE TAG?

# 2 MR. SHAPIRO:

YES, YOUR HONOR.

# 3 MR. GOLDBERG:

YOUR HONOR, MAY WE HAVE A FEW MOMENTS JUST TO PATCH THAT EXHIBIT? AS THE COURT KNOWS, I DIDN'T WANT TO DEAL WITH THAT.

# 4 THE COURT:

ALL RIGHT.

# 5 MR. GOLDBERG:

THANK YOU.

# 6 (BRIEF PAUSE.)

# 7 MR. GOLDBERG:

YOUR HONOR, PERHAPS I COULD INQUIRE WHILE WE ARE WAITING WHETHER THE COURT IS GOING TO ALLOW THE DEFENSE TO CONTINUE TO ARGUE THAT BLOOD WAS NOT FOUND IN ANY LOCATIONS EXCEPT THOSE WHERE THERE'S BEEN SOME SPECIFIC EVIDENCE OF IT SUCH AS ITEM NUMBER 14 AND ITEM NUMBER 12 INSIDE THE HOUSE.

# 8 THE COURT:

THEY WOULD DO THAT AT THE PERIL OF OPENING THE DOOR TO ALL THESE OTHER THINGS.

# 9 MR. SCHECK:

YOUR HONOR, YOU JUST SAID -- THE QUESTION WAS, WE CANNOT ARGUE OR SUGGEST QUESTIONS THAT THERE'S NO BLOOD IN THE PLACES WHERE THEY DID THE TESTS. OTHER PLACES WHERE THERE'S PLAINLY NO BLOOD, WE CAN BRING UP.

# 10 THE COURT:

YOU CAN BRING THAT UP.

# 11 MR. NEUFELD:

FINE.

# 12 THE COURT:

BUT IF YOU CREATE A FALSE IMPRESSION --

# 13 MR. NEUFELD:

WELL --

# 14 THE COURT:

-- THAT THAT WAS NOT TESTED --

# 15 MR. SCHECK:

OH, NO.

# 16 THE COURT:

-- THEN YOU OPEN THE DOOR TO ALL MANNER OF MISCHIEF.

# 17 MR. SCHECK:

NO, NO, NO.

# 18 MR. GOLDBERG:

SEE, YOUR HONOR, THE PROBLEM IS THAT -- IS WHAT, THEY'RE INTENDING TO DO AND WHAT THEY'VE ALREADY DONE IS TO CREATE A FALSE IMPRESSION, BECAUSE WHAT THEY'RE GOING TO SAY IS THAT THE ONLY PLACES WHERE WE HAVE EVIDENCE OF BLOOD ARE 14 AND 12.

# 19 THE COURT:

IF THEY ARGUE THAT, THEN YOU GET TO REOPEN YOUR CASE. THEY WON'T ARGUE THAT. WE DON'T CREATE FALSE IMPRESSIONS.

# 20 MR. NEUFELD:

RIGHT. BUT CAN -- WE CAN ARGUE THAT, FOR INSTANCE, THEY DID A PHENOL TEST SOME OTHER PLACE AND IT WAS NEGATIVE.

# 21 THE COURT:

CORRECT.

# 22 MR. GOLDBERG:

WELL, SO THE COURT IS ALLOWING THEM THAT THE NEGATIVE CAN BE TESTED?

# 23 THE COURT:

COUNSEL, YOUR OWN AUTHORITY SAYS THAT PHENOL -- THE ABSENCE OF A POSITIVE PHENOL TEST IS CONCLUSIVE THAT THERE'S NO BLOOD. THAT'S THE AUTHORITY YOU CITED TO THE COURT.

# 24 MR. GOLDBERG:

I WAS INQUIRING, YOUR HONOR.

# 25 THE COURT:

THIS IS NOT A QUID PRO QUO. LET'S PROCEED.

KEY QUOTE

# 26 (BRIEF PAUSE.)

# 27 MS. CLARK:

YOUR HONOR, HAS MR. UELMEN PRESENTED ANY JURY INSTRUCTIONS TO THE COURT CONCERNING ITEM 15? WE HAVE NOT SEEN IT.

# 28 THE COURT:

HE READ IT TO THE COURT. PERFECT.

# 29 MS. CLARK:

YOU KNOW SOMETHING? I LOOK AT THIS REQUEST, YOUR HONOR. WHAT KIND OF HONOR DO WE HAVE ON THAT SIDE?

KEY QUOTE

# 30 THE COURT:

COUNSEL, WE'VE ALREADY -- COUNSEL, WAIT, WAIT, WAIT.

# 31 MS. CLARK:

WHEN WE RECESSED YESTERDAY, THEY SAID THEY DIDN'T CARE, THAT IT WAS NO BIG DEAL.

# 32 THE COURT:

WAIT, WAIT.

# 33 MS. CLARK:

THIS IS A LUGGAGE TICKET, YOUR HONOR, THAT HELPS THEIR CASE.

# 34 THE COURT:

WAIT, WAIT. MISS CLARK, I'VE ALREADY RULED ON THIS. WE'RE NOT ARGUING THIS.

# 35 MS. CLARK:

I WAS NOT ALLOWED TO ADDRESS THE PROPOSED INSTRUCTION. THIS IS THE FIRST TIME I'VE SEEN IT.

# 36 THE COURT:

WELL, EXCUSE ME, COUNSEL, BUT I THOUGHT WE HAD COMPLETE ARGUMENT ON BOTH SIDES ON THIS ISSUE. WE HAVE, TRUST ME.

# 37 MS. CLARK:

WE HAD ARGUMENT, BUT THIS PROPOSED INSTRUCTION WAS JUST -- IS JUST NOW BEING SHOWN TO ME. ARE WE ALLOWED TO ADDRESS THIS ISSUE OF WHETHER THE PROPOSED INSTRUCTION IS CORRECT OR FAIR?

# 38 THE COURT:

COUNSEL, YOU HAD MORE THAN AMPLE OPPORTUNITY TO ADDRESS IT.

# 39 MS. CLARK:

HOW'S -- HOW'S THAT, YOUR HONOR? THIS IS THE FIRST TIME I'VE SEEN IT. HOW COULD I ADDRESS SOMETHING I'VE NEVER SEEN?

KEY QUOTE

# 40 THE COURT:

COUNSEL, DURING THE COURSE OF THE ARGUMENT, DEAN UELMEN ASKED FOR THIS INSTRUCTION. THEN MISS LEWIS WAS GIVEN THE OPPORTUNITY TO RESPOND. HERE WE ARE.

# 41 MS. CLARK:

AND MR. UELMEN THEN WROTE DOWN WHAT HE PROPOSED THAT THE COURT ACTUALLY GIVE WITH RESPECT TO A LUGGAGE TAG OF NO PREJUDICIAL VALUE AT ALL. I MEAN, WE ARE LOSING PERSPECTIVE HERE AND I'VE NEVER SEEN THE PROPOSED INSTRUCTION HE JUST WROTE UNTIL THIS MOMENT. WE HAVE NOT HAD A CHANCE TO ADDRESS IT.

# 42 THE COURT:

COUNSEL, YOU HAD THE OPPORTUNITY TO ADDRESS IT. WOULD YOU RETURN IT TO THE COURT, PLEASE. THANK YOU. LET'S HAVE THE JURY.

Temperature

tense

Key Quotes (4)

Lance A. Ito

IF YOU CREATE A FALSE IMPRESSION -- THAT THAT WAS NOT TESTED -- THEN YOU OPEN THE DOOR TO ALL MANNER OF MISCHIEF.

Ito draws the line for the defense: they can argue negative test results but cannot imply untested areas were tested and came back negative.

Lance A. Ito

THIS IS NOT A QUID PRO QUO. LET'S PROCEED.

Sharp rebuke to Goldberg for trying to negotiate evidentiary concessions; Ito shuts down the attempt immediately.

Marcia Clark

YOU KNOW SOMETHING? I LOOK AT THIS REQUEST, YOUR HONOR. WHAT KIND OF HONOR DO WE HAVE ON THAT SIDE?

Clark openly questions the defense's good faith in front of the judge — a rare moment of direct accusation about opposing counsel's conduct.

Marcia Clark

HOW'S -- HOW'S THAT, YOUR HONOR? THIS IS THE FIRST TIME I'VE SEEN IT. HOW COULD I ADDRESS SOMETHING I'VE NEVER SEEN?

Clark's exasperated pushback on Ito's ruling that she had ample opportunity to respond to an instruction she claims she only just received.

Evidence (5)

Informal

Airline ticket — agreed by parties not to be introduced; ordered covered on exhibit

excluded, physically covered

Informal

Baggage tag (luggage tag) — agreed not to be introduced; Clark calls it of 'no prejudicial value'

excluded, physically covered

Item 14

Blood evidence item referenced in defense blood-absence argument

discussed

Item 12

Blood evidence item inside the house referenced in defense argument

discussed

Item 15

Subject of Uelmen's proposed jury instruction; not further described in transcript

jury instruction proposed and ruled on

Notable Exchanges (2)

Hank Goldberg•Barry Scheck•Lance A. Ito

Scheck and Neufeld pressed Ito to clarify exactly what blood-absence arguments the defense could make; Goldberg tried to limit them; Ito ruled that negative phenol test results are fair argument but creating false impressions opens the door to prosecution rebuttal.

strategic

Marcia Clark•Lance A. Ito

Clark protested that she had never seen Uelmen's written proposed jury instruction for Item 15 until that moment and had not had a chance to respond; Ito cut her off repeatedly, insisting argument was complete, and called for the jury.

heated

Objections

None recorded

Proceeding 5586 • 42 utterances

Criminal Trial

Department 103