Your Honor, I don't know whether they were planning on breaking before supposedly playing this tape of the preliminary hearing, but obviously that would be something that would have to be screened. We don't know whether there are television commentators interrupting it. And of course, the People would object to the using of the videotape at all since that is not the official court record. The official court record is the written transcript, and there is no exception that I am aware of that would allow a videotape that was created by a third party who is not an Officer of the Court, that kind of evidence to be allowed in without any foundation.
All right. Who wants to address the use of a videotape for the purpose of prior recorded testimony? Mr. Goldberg, are you indicating to the Court that you have not seen this tape recording before?
Your Honor, Miss Clark called as a witness at the preliminary hearing Mr.--Doc--Mr. Nurse Peratis, and I cross-examined him. It was in the courtroom setting. It was under oath. It was done under the same settings that you have here, and I don't think there is any question whatsoever of the accuracy of the--I'm sorry. Miss Clark is trying to say something?
I'm sorry. I thought you were whispering to me. Excuse me. That I don't think there is any objection unless Miss Clark wants to represent to your Honor that those questions that she asked or the answers that were given by Mr. Peratis are not accurate. Clearly, this is the best way for the jury to see exactly what has happened in the testimony. This is live testimony under oath and it is much better than the transcript because the words are not coming from people who are reading the words. The words are coming from the witness just as if you did a videotaped deposition. So I think this is an--an issue that--
You're trying to say it's the form over substance objection is what you're trying to say.
Well, it isn't a form over substance issue. I mean, we may arrive at the time where we commonly use videotapes maybe--hopefully in addition to court reporters for the purposes of recording what happens in the court, but we have not arrived at that point yet.
And in instances where videotape has been authorized by the Court, if it had been authorized by the Court, what your Honor would have undoubtedly directed the videographer to do would be to exclusively photograph the witness. But since the only photography we have of these proceedings is done by people who are not within the Court's direct control, they sometimes show the witness, they sometimes show the attorney, they sometimes pan over to the Defendant to capture his reaction or the reactions of other people that are sitting at counsel table and occasionally pan over to your Honor to capture the Court's reaction. All of those kinds of things would be things that the Court would not permit if the videographer were under the Court's direct control, their editorializations of what is happening in court that are not proper. And I think that this whole issue is more significant than simply relating to the question of Thano Peratis' testimony because I would assume, as perhaps has already been brought to the Court's attention, that one or both of the parties might want to use videotaped portions of the trial in closing argument.
I think we get into some of the same problems there as well, given that we do not have an official record and we have a situation where we don't know exactly who the camera was focusing on unless we have previewed that particular video snippet. And we also have times I believe, although I'm not positive, where not everything has been captured on tape with respect to a single witness, where the organization, news organization may have interrupted for television commercials. I'm not a hundred percent positive that every single witness, a hundred percent of that witness' testimony is on tape. So there are some problems that this presents further down the road when we get to closing argument as well, your Honor.
All right. Let's look at the--I had not contemplated the various editorial issues, what the videotape actually shows and how much is actually Mr. Peratis and how much is extraneous matters. So this tape is only about eight or 10 minutes. Let's see the tape.
The tape you are going to see, your Honor, has the one redaction as ordered by the Court; that there was one objection made by Marcia Clark which was sustained by the Court. Otherwise, it is the verbatim tape.
All right. All right. The Court has observed the videotape, which I think we should mark Defendant's next in order if we have not already.
And, Mr. Goldberg, do you have any further argument in opposition to the use of the videotape?
Your Honor, the problem with the videotape, as the Court may have noticed in particular, is that a couple times, it pans over to the Defendant. Of course, it also pans over to the attorneys, although I'm not certain that that particular feature is prejudicial to us per se in this particular instance. Showing the Defendant may be--similarly, showing the victim's family may be somewhat prejudicial or at least unnecessary as far as the Defense is concerned. So if the Court were inclined, and we think that the Court should if this videotape is going to be used, cut out the pans to the Defendant, that it would also be fair to cut out the pans to the audience as well. I don't think that the People as a tactical matter are particularly prejudiced if the Court were to make those deletions in showing this videotape. But the concern that we do have is that if the Court allows this videotape, the Court will allow other videotapes and we will always be confronted with the same kinds of problems that the Court saw here. For example, if in the closing argument they were to be used and the Defense were to say, "Well, look at how this witness reacted when they were asked such and such and look at his demeanor," and then the People wanted to put that into context by showing some other snippet, but that snippet was either not captured at all or during that part of the testimony, they were panning to the Defendant or to one of the attorneys, that would be simply be fundamentally unfair and it would not give us the opportunity, or if we were to do it, would not give the Defense the opportunity necessarily to try to use the remaining portions of the videotape to place into context.
Well, because I'm concerned, I'm very concerned that this is going to set a precedent and that if the Court is going to allow this videotape, and not notwithstanding--
Well, there's a huge difference between allowing something as substantive evidence and allowing its use in argument; don't you think?
I think that there's a difference, but the principal is the same. And that is, what can we use when we are quoting the Court record and the Court transcript, what is the appropriate medium that we are using. Is it a videotape or is it what has always historically been, that is what the court reporter has generated. So the underlying principal is the same.
And, therefore, we are concerned that if the Court rules today that for evidentiary purposes, we can use the videotape, that the Court is going to rule the same at the time of the closing arguments and suggest that for argument, we could also use the videotape. So my point is, your Honor, although I don't think that the Prosecution is necessarily prejudiced in this instance through the use of this tape, even though legally it probably isn't authorized, we are not prejudiced if the deletions that I referred to are made. We still are very concerned that this precedent might allow the Court to then allow either party or both parties to use videotaped segments in the closing argument that could be prejudicial to both sides.
All right. Well, Mr. Goldberg, you should rest assured that I see those as separate and distinct issues. All right. Mr. Shapiro, any further comment?
Your Honor, I think the videographer captured the demeanor of the witness that you would not get if the testimony was read by parties portraying their testimony. The jury when they sit in the courtroom not only sees Mr. Simpson and the lawyers, but sees the audience. I saw no reactions that are unusual either from Mr. Simpson or from the Goldman family, and we have no objection and think the best way for the jury to Judge this witness, this witness' credibility and what this witness is called to testify for on behalf of the Defense is fairly and accurately best depicted by this video. Thank you.
All right. Thank you, counsel. I agree. I think one of the most important things is for a jury to see as well as hear a witness testify, and this is one of the advances in technology that has beneficial to the truth finding process. So I'll allow the use of the videotape. If the Prosecution has any discrepancies from the official court transcript that they want to challenge with during their presentation of their case in rebuttal, they're entitled to do so. All right. Let's have the jury, please.
Your Honor, does the Court have the instruction to read to the jury concerning admissibility of the testimony?
The official court record is the written transcript, and there is no exception that I am aware of that would allow a videotape that was created by a third party who is not an Officer of the Court, that kind of evidence to be allowed in without any foundation.
This is live testimony under oath and it is much better than the transcript because the words are not coming from people who are reading the words. The words are coming from the witness just as if you did a videotaped deposition.
I think one of the most important things is for a jury to see as well as hear a witness testify, and this is one of the advances in technology that has beneficial to the truth finding process. So I'll allow the use of the videotape.
We are very concerned that this precedent might allow the Court to then allow either party or both parties to use videotaped segments in the closing argument that could be prejudicial to both sides.