Your Honor, we would like, with the Court's permission, to have Mr. Bosco return tomorrow--he normally is in the courtroom--in the event the Court finds his testimony relevant so we may present it before the jury tomorrow.
Your Honor, I just want to respond to some of the comments that were made by counsel just a few moments ago since I did not get an opportunity obviously to do that. Your Honor I am sure recognizes that we made a multi-pronged argument as to why this type of testimony should not be allowed, including issues that I will not repeat, such as relevancy issues relating to foundation, issues relating to authentication of how it is that the individual knows who this person was that they were talking to or even if they were talking to a person. I'd like to simply respond to what I characterized I think when I previously spoke to you as being the third prong, which is whether or not the Prosecution could cross-examine a witness who presented this kind of evidence, which counsel seems to have also focused on. Now, first of all, in the State of California, the People do have the right to a fair trial. I don't know where the idea came from that only the Defense has the right to a fair trial. And we also have a right to cross-examine witnesses. And those rights would be deprived if we were to allow the kind of testimony that your Honor has just heard where someone said, "Well, what I wrote is true," and won't tell us whether they're opinions as opposed to facts, won't tell us whether it's a single source as opposed to multiple sources, won't even tell us for sure whether it is a source as opposed to double hearsay, in other words, him getting information from a journalist who then claims that they spoke to this individual. We wouldn't be able to explore any of those things as was just illustrated a few moments ago. And also, it illustrates how, if the Defense were to offer this kind of testimony, it could not be admissible without more. Now, let me just give the Court a very concrete example. Let's say that Mr. Bosco were answering questions a little bit more directly than he just did and the Defense had asked him, "Did you speak to someone on the telephone," and he said, "Yes, I did." "Was this a male or a female?" He said, "It was a male." "Was this person from the Los Angeles Police Department," and at that point the Prosecution interposed an objection, objection, no foundation for authentication. That objection would be sustained and he would never be allowed to offer the statement that, "Yes, I spoke to a member of the Los Angeles Police Department," unless the Defense could then lay a further foundation of, "Was this a voice that you recognized and was this someone you talked to in person on previous occasions sufficiently to be able to recognize their voice" when he spoke to him on the telephone. And then after that foundation had been laid, then and only then would the Court then allow him to testify, "Yes, I recognize this to be an individual that I knew to be a Los Angeles police officer." So what the little illustration that we just had in Court represents, that if all the Defense could ever do was offer the testimony that your Honor just heard, they'd never be able to establish a foundation for the statements that are contained in these two paragraphs of the article. I think it also illustrates some of the other issues that I previously mentioned, particularly relevancy and how this whole thing in all probability boils down to--and evidently boils down to nothing more than a misunderstanding of someone misrepeating or mishearing some information and then maybe misreporting the information. We wouldn't be able to explore that either on cross-examination. And for those reasons, your Honor, we say that this testimony should be precluded. And finally, your Honor, under evidence code section 352, I think the Court can see the quagmire that we would be getting into in this kind of an issue and any minimal probative value of the testimony--we say there's no probative value--would clearly be substantially outweighed by its effect in misleading the jury and confusing the issues in this trial. Thank you.
Thank you, counsel. All right. Anything else that we need to take up before we take our recess for the afternoon?
One last thing, your Honor. You may want to do it later or now. There's a motion that was filed I believe this morning. It's the Defendant's motion for statements of witnesses given in the course of an investigation by the LAPD Internal Affairs Division. I only rise now because I wanted the Court to have this motion in mind because it ties in with Michele Kestler and everything else. And so just at the appropriate time, we would like to have that set.
I saw that and I noted in the proof of service that the Los Angeles Police Department and the city attorney's office was not included on the proof of service. I wondered about that.
So at your convenience. You have a few things to deal with. But this ties in with what we're talking about. So I just wanted to let you know about that. That's all.
All right. We'll stand in recess until 9 o'clock tomorrow morning. Thank you, counsel.
Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
Arthur Walsh, Deputy City Attorney Michael D. Sullivan, Esquire, Halina F. Osinski, Esquire
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I N D E X
Index for volume 197 pages 39482 - 39770
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Day date session page vol.
Tuesday August 1, 1995 A.M. 39482 197 P.M. 39640 197
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PROCEEDINGS
402 motion re: Michele Kestler 39482 197
402 motion re: Dr. John Gerdes 39686 197
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Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE (402) witnesses direct cross redirect recross vol.
Kestler, 39492n 39532gb 197 Michele
Bosco, 39753s 39760gb 197 Joseph
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DEFENSE witnesses direct cross redirect recross vol.
MacDonell, 197 Herbert (Resumed) 39540mc 39590n 39622mc (Further) 39635n
Peratis, Thano 39655 197 (Testimony read into the record from the preliminary hearing)
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Bosco, 39753s 39760gb 197 Joseph (402)
Kestler, 39492n 39532gb 197 Michele (402)
MacDonell, 197 Herbert (Resumed) 39540mc 39590n 39622mc (Further) 39635n
Peratis, Thano 39655 197 (Testimony read into the record from the preliminary hearing)
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EXHIBITS
DEFENSE for in exhibit identification evidence page vol. page vol.
1281 - 5-page report 39499 197 from Cellmark dated September 8, 1994
1282 - 1-page document 39499 197 facsimile dated September 16, 1994
1283 - Videotape 39647 197 of the testimony of Thano Peratis at the preliminary hearing
1284 - 5-page document 39663 197 described as the Grand Jury testimony of Thano Peratis on June 22, 1994, at 2:00 P.M.
in the State of California, the People do have the right to a fair trial. I don't know where the idea came from that only the Defense has the right to a fair trial.
in all probability boils down to--and evidently boils down to nothing more than a misunderstanding of someone misrepeating or mishearing some information and then maybe misreporting the information.
I still have a seat, right, your Honor?