Sidebar (2)

📄 Sidebar (2) — Thursday, August 10, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\10\SIDEBAR-2-.DOC

TRIAL

▲ Day 133 of 167

◀ Cross-examination of Dr. Michael Baden (afternoon, part 2) Cross-examination of Dr. Michael Baden (afternoon, part 3) ▶

Date: Thursday, August 10, 1995 • Utterances: 16

A brief sidebar in the civil trial where Kelberg sought to use a prior inconsistent statement from Dr. Michael Baden's examination of O.J. Simpson on June 17, 1994 — the day Simpson was supposed to surrender to police. Shapiro argued the examination was rushed due to time pressure and that using it without context would be unfair, while Kelberg maintained it was within scope as direct examination had already opened the door. Ito overruled the objection.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

All right. Mr. Kelberg--we're over at sidebar--what portion are you going after here?

# 3 MR. SHAPIRO:

Page--

# 4 MR. KELBERG:

Question--

# 5 MR. SHAPIRO:

That's what we object to.

# 6 MR. KELBERG:

Starting with, "You looked," and goes over to here (Indicating).

# 7 THE COURT:

All right. I'll allow you to use just "Hours." I mean, "You were with O.J. on the 17th."

# 8 MR. KELBERG:

Okay.

# 9 MR. SHAPIRO:

Your Honor, here's one of the problems with this line of questioning. In fairness, Dr. Baden was not there on the 17th to conduct an autopsy examination or a full body examination. This was the time that we had been alerted by the police department that he was to surrender by 10:30 and was called at 8:30, and we had begun certain forms of testing, including forms of psychiatric and psychological testing, medical testing by Dr. Huizenga that he talked about and other examinations that had to be done, and they had to be done very, very quickly. And because of the time constraints, we were pressed for time. In order for me to put this in proper perspective, as Mr. Kelberg knows it to be, before the jury to show that this was not a time that this doctor had full rein, plenty of time to sit down and conduct this examination, I have to get into those areas. And so I might ask you under 352 to consider that this is going to open the door to that area, and I just want to alert the Prosecution to that.

# 10 MR. KELBERG:

It doesn't open any door, your Honor. Counsel on direct brought out that he examined Mr. Simpson on the 17th. That's what I'm asking about and his findings.

# 11 THE COURT:

All right. I think it is within the scope. So the objection is overruled. It's a prior inconsistent statement.

KEY QUOTE

# 12 MR. SHAPIRO:

May the doctor have time to look at that statement first? Under 356, there's other stuff in there also. It talks in part about this so-called struggle, the part where it says, "It is not consistent with any struggle. Are you aware of that?"

KEY QUOTE

# 13 MR. KELBERG:

I'm going to go through that.

# 14 MR. COCHRAN:

There's more. Maybe it will save some time.

# 15 MR. KELBERG:

No.

# 16 THE COURT:

Okay.

Temperature

procedural

Key Quotes (3)

Robert Shapiro

This was the time that we had been alerted by the police department that he was to surrender by 10:30 and was called at 8:30, and we had begun certain forms of testing, including forms of psychiatric and psychological testing, medical testing by Dr. Huizenga that he talked about and other examinations that had to be done, and they had to be done very, very quickly.

Shapiro reveals the frantic activity happening on June 17 — the day of the Bronco chase — including psychiatric and psychological testing of Simpson, contextualizing why Baden's examination was limited.

Lance A. Ito

All right. I think it is within the scope. So the objection is overruled. It's a prior inconsistent statement.

Ito allows Kelberg to impeach Baden with his June 17 findings as a prior inconsistent statement.

Robert Shapiro

May the doctor have time to look at that statement first? Under 356, there's other stuff in there also. It talks in part about this so-called struggle, the part where it says, 'It is not consistent with any struggle. Are you aware of that?'

Shapiro signals the broader content of Baden's June 17 statement, flagging that it includes language undermining the defense narrative of a struggle — suggesting Kelberg will use it to attack Baden's testimony.

Evidence (1)

Informal

Dr. Baden's written statement or notes from his examination of O.J. Simpson on June 17, 1994

referenced for impeachment as prior inconsistent statement

Notable Exchanges (2)

Robert Shapiro•Brian Kelberg

Shapiro argued the June 17 exam was conducted under extreme time pressure and could not fairly be used without full context; Kelberg rejected that framing, noting the defense itself had opened the door on direct.

strategic

Johnnie Cochran•Brian Kelberg

Cochran tried to flag additional content in the statement to potentially save time; Kelberg curtly declined.

terse

Credibility Attacks (1)

⚔ Michael Baden

prior inconsistent statement

Kelberg sought to use Baden's findings from his rushed June 17 examination — including language that injuries were 'not consistent with any struggle' — to impeach his trial testimony.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 7261 • 16 utterances

Criminal Trial

Department 103