Cross-examination of Dr. Michael Baden (afternoon, part 3)

📄 Cross-examination of Dr. Michael Baden (afternoon, part 3) — Thursday, August 10, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\10\CROSS-EXAMINATION-OF-DR-MICHAE.DOC

TRIAL

▲ Day 133 of 167

Witness: Dr. Michael Baden
Examiner: Brian Kelberg
Called by: Defense • Date: Thursday, August 10, 1995 • Utterances: 57

Kelberg cross-examines defense forensic expert Dr. Michael Baden using his own statements from a June 1994 NBC Dateline interview, in which Baden described OJ Simpson's hand injuries as 'tiny little marks' and downplayed their significance. The examination presses Baden on whether his TV appearance contradicted his trial testimony that the wounds were cuts and lacerations, and whether the injuries were consistent with a knife or a struggle. The proceeding ends abruptly at a sidebar when Kelberg moves to ask whether Baden questioned Simpson about the origin of his injuries.

# 1 THE COURT:

All right. Thank you, counsel. Proceed.

# 2 MR. KELBERG:

Dr. Baden, did you in fact appear on the NBC Dateline program on June 23rd, 1994 in which you were asked about your examination of Mr. Simpson's left hand?

# 3 MR. SHAPIRO:

Your Honor, may he have an opportunity to review that transcript?

# 4 THE COURT:

No. Mr. Kelberg is entitled to lay the foundation under 770 as he chooses. Proceed.

# 5 DR. BADEN:

I don't specifically recall, but if you have that date, I would agree with it I guess.

# 6 MR. KELBERG:

Doctor, on that program, were you asked by a reporter by the name of John Larson whether on the 17th of September, you looked at the cut hand of Mr. Simpson and did you give the following answer?

# 7 DR. BADEN:

17th of June?

# 8 MR. KELBERG:

Yeah. Your examination was on the 17th.

# 9 DR. BADEN:

Of June. You said September.

# 10 MR. KELBERG:

Of June. I'm sorry if I misspoke. Your answer: "I looked at the injury. There was very whatever cuts. I think saying "Cuts" gives it a magnitude it doesn't have. They were tiny little marks on the body on the hands." Then the question from the reporter: "Could they have been the result of a struggle?" And your answer: "They could, may or may not be consistent with a struggle. Certainly it is not consistent with a lot of struggle. I mean, there's no other marks on the body." Did you give those answers to those questions asked of you by a reporter?

# 11 DR. BADEN:

I do not have an independent recollection. But I would agree with what you say. I mean, I have no reason to say what you're reading to me isn't what I said.

# 12 MR. KELBERG:

Sir, in that, you never mention any abrasions being seen, even the two that you indicate may be reflected by this lower entry on your form, correct?

# 13 MR. SHAPIRO:

Your Honor, objection. That's argumentative. This is a cuts and paste interview.

# 14 THE COURT:

Overruled.

# 15 MR. KELBERG:

You may answer the question.

# 16 DR. BADEN:

From what you read to me, I didn't say anything about abrasions, and I agree with you, I think that my mark, that wrist that's on the elmo refers to two abrasions, yes.

# 17 MR. KELBERG:

Doctor, in your answer here, were you trying to minimize the significance of injuries that you had seen on Mr. Simpson's left hand on June 17th?

# 18 DR. BADEN:

I don't think so.

# 19 MR. KELBERG:

Well, in fact, sir, you testified that these were cuts, correct?

# 20 DR. BADEN:

You mean--

# 21 MR. KELBERG:

Here in trial, you testified they were cuts that you observed; isn't that correct?

# 22 DR. BADEN:

Yes.

# 23 MR. KELBERG:

You said on the interview, "I think saying cuts gives it the magnitude it doesn't have." Were they cuts or not, sir?

# 24 DR. BADEN:

I think that they're two cuts--

# 25 MR. SHAPIRO:

Your Honor, that misstates the evidence.

# 26 THE COURT:

Overruled.

# 27 MR. SHAPIRO:

May I be heard?

# 28 THE COURT:

Overruled. Have a seat.

# 29 DR. BADEN:

I think I called it laceration on the back of the third finger, not a cut, a laceration, and cuts on the inside of the two hands or the two fingers, but I would like to--if I might, could I see that in context, because I was responding to whatever the situation was at the time. I'm not there to give a full medical work-up to the media, but--

# 30 MR. KELBERG:

Well, doctor, you weren't--

# 31 MR. SHAPIRO:

Your Honor, may he see it? He's asked to see it.

# 32 THE COURT:

Hold on.

# 33 MR. KELBERG:

You were not obligated to talk to the media, were you, Dr. Baden?

# 34 DR. BADEN:

That's correct. I'm not obligated to talk to the media.

# 35 MR. KELBERG:

You could have told the reporter to go pound sand, that you've been retained by the Defense and it's a privileged communication between the client, Mr. Simpson, and an expert retained by the lawyer, Dr. Baden?

KEY QUOTE

# 36 DR. BADEN:

I could always refuse to talk to the media, certainly.

# 37 MR. KELBERG:

But you didn't, did you?

# 38 DR. BADEN:

I did not.

# 39 THE COURT:

All right. Would you show Dr. Baden the transcript you're referring to, please?

# 40 MR. KELBERG:

Sure. Sure.

# 41 THE COURT:

Dr. Baden, feel free to take a moment and see if the context is appropriate.

# 42 DR. BADEN:

Thank you, your Honor. Thank you very much.

# 43 (Brief pause.)

# 44 DR. BADEN:

Yes. It's hard to get it in context because there's voice-overs and many different people talking, but I think what you quoted me saying is--sounds accurate.

# 45 MR. KELBERG:

Now, sir, was it your opinion that those injuries could have been the result of a struggle between Mr. Simpson and another human being?

# 46 DR. BADEN:

I think that's what I said and I would have to agree with it.

# 47 MR. KELBERG:

Now, doctor, you also said in response to a question from Mr. Shapiro that the source of the cut on the middle finger of the left hand was more likely from glass; is that correct?

# 48 DR. BADEN:

Yes.

# 49 MR. KELBERG:

But in your opinion, sir, could it have been caused by a knife, a sharp-edged knife?

# 50 DR. BADEN:

It could be, but it's--that's not my opinion, no. My opinion is, it could be, but very unlikely because a sharp knife would not cause as jagged a cut and--may I see the--what I said there, please, once again?

# 51 MR. KELBERG:

See what you said to--

# 52 DR. BADEN:

What you quoted, yeah, because I think I misspoke just a moment ago. What I said on the program was, they could, may or may not be consistent with a struggle. It is not consistent with a lot of struggle because there are no other marks on the body. So the only place I saw injury was on the hands. He had a lot of injury, a lot of old healed injuries on his body from previous--so could or couldn't be a struggle, but I can't exclude a struggle, but it didn't look like a significant struggle is what I was trying to convey and there were small cuts on the inside of the fingers.

# 53 MR. KELBERG:

Were those cuts consistent with a sharp knife, sir?

# 54 DR. BADEN:

Yes. Could be. The edge or tip of a sharp knife, I can't exclude that.

KEY QUOTE

# 55 MR. KELBERG:

Doctor, did you ask Mr. Simpson on the 17th when he received any of the injuries you identified in your examination?

# 56 MR. SHAPIRO:

Objection.

# 57 THE COURT:

Let me see counsel at the sidebar with the court reporter, please.

Temperature

tense

Key Quotes (4)

Dr. Michael Baden

I think saying 'Cuts' gives it a magnitude it doesn't have. They were tiny little marks on the body on the hands.

Baden's own prior TV statement, used by Kelberg to impeach his trial testimony that the wounds were cuts and lacerations — the core contradiction being developed.

Brian Kelberg

You could have told the reporter to go pound sand, that you've been retained by the Defense and it's a privileged communication between the client, Mr. Simpson, and an expert retained by the lawyer, Dr. Baden?

Kelberg suggests Baden had no obligation to speak publicly and implies the Dateline appearance was a deliberate effort to shape public perception in favor of the defense.

Dr. Michael Baden

I can't exclude a struggle, but it didn't look like a significant struggle is what I was trying to convey and there were small cuts on the inside of the fingers.

Baden attempts to reconcile his TV statements with trial testimony, but in doing so concedes the injuries were consistent with a struggle and consistent with a sharp knife.

Dr. Michael Baden

Yes. Could be. The edge or tip of a sharp knife, I can't exclude that.

Baden admits the cuts could have been caused by a knife — a significant concession on cross that directly supports the prosecution's theory.

Evidence (2)

Informal

Transcript of Dr. Baden's June 23, 1994 NBC Dateline interview with reporter John Larson about his examination of Simpson's left hand

Used to impeach Baden's trial testimony; Baden allowed to review it mid-examination

Informal

Baden's examination form displayed on the Elmo, showing a wrist notation indicating two abrasions

Referenced by Baden to clarify distinction between cuts, lacerations, and abrasions

Notable Exchanges (3)

Brian Kelberg•Dr. Michael Baden

Kelberg methodically walks Baden through his Dateline quotes, forces him to admit he did not mention abrasions during the TV interview despite noting them in his examination form, and extracts an admission that the injuries were consistent with a knife.

strategic

Robert Shapiro•Lance A. Ito

Shapiro objects 'that misstates the evidence' and then asks 'May I be heard?' — Ito overrules and tells him to sit down, then immediately instructs Kelberg to show the witness the transcript.

tense

Brian Kelberg•Dr. Michael Baden

Kelberg points out Baden was not obligated to speak to the media and could have declined, implying the interview was voluntary advocacy for the defense. Baden concedes he could have refused but didn't.

pointed

Light Moments (2)

Brian Kelberg

Kelberg tells Baden he could have 'told the reporter to go pound sand' — unusually colorful language for a formal cross-examination.

Dr. Michael Baden

Baden catches Kelberg saying 'September' instead of 'June' for the date of the hand examination, briefly reversing roles as the one catching an error.

Credibility Attacks (2)

⚔ Dr. Michael Baden

Prior inconsistent statement

Kelberg uses Baden's own June 1994 NBC Dateline interview to show he publicly described Simpson's hand wounds as 'tiny little marks' with no mention of abrasions, contradicting his more clinical trial testimony about cuts, lacerations, and abrasions — suggesting he minimized the injuries when speaking to the press.

⚔ Dr. Michael Baden

Bias / voluntary media advocacy

Kelberg establishes that Baden voluntarily appeared on national TV while retained as a defense expert, arguing he was not obligated to speak publicly and implying the appearance was intended to influence public opinion.

Witness Demeanor

(Brief pause.) [Baden reviewing the Dateline transcript provided by Kelberg at Ito's direction]

Objections

3 objections (0 sustained, 2 overruled)

Proceeding 7262 • 57 utterances • Defense witness

Criminal Trial

Department 103