Sidebar: photograph admissibility

📄 Sidebar: photograph admissibility — Tuesday, August 22, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\22\SIDEBAR-PHOTOGRAPH-ADMISSIBILI.DOC

TRIAL

▲ Day 140 of 167

Date: Tuesday, August 22, 1995 • Utterances: 42

A sidebar during the civil trial concerning the admissibility of blow-up photographs of a bloodstained washcloth from OJ Simpson's Chicago hotel room. Darden objected under Evidence Code 352 that the enlargements appeared color-enhanced to accentuate blood, while Shapiro explained the lab simply enlarged the photo without alteration. Ito personally examined both and overruled the objection, noting jurors would have both to compare. A secondary dispute arose over anticipated hearsay testimony about missing laundry bags, and Darden made an unsuccessful plea for Ito to revisit an adverse ruling from that morning.

# 1 MR. COCHRAN:

We talked about this and went through it. I made a 402 Friday to limit this to the ruling, and I'm going to do that. There's one other area I wanted to ask the court about. I'm going to mark--those are the pictures I'm going to mark. To save some time, I've got a couple blow-ups. The other area is, this is--

# 2 THE COURT:

You've shown Chris the blow-ups already?

# 3 MR. COCHRAN:

Yes. Shawn showed Chris the blow-ups.

# 4 MR. DARDEN:

Yeah. There's an objection actually to the blow-ups.

# 5 MR. COCHRAN:

You want to object to it now?

# 6 MR. DARDEN:

Yeah. I tried to before, but we went to something else. My only objection is this. When you look at the actual photos--

# 7 THE COURT:

We've seen these.

# 8 MR. DARDEN:

Yeah. I mean, there's photos like this admitted into evidence, and I can see that. But these seem like they've been filtered somehow in the blow-up. The colors have been changed to accentuate I suppose the blood. Maybe it's me.

# 9 MR. COCHRAN:

I just want to show these. It's the same blow-up of this picture and of the bedding. This is the one I'm interested in (Indicating).

# 10 THE COURT:

All right. What we need to do is--

# 11 MR. COCHRAN:

That's all I'm interested in. The color--

# 12 MR. DARDEN:

It has been improved.

# 13 MR. COCHRAN:

It's not improved. It's just blown up. Graphics blew it up and brought it down here. I don't want to put it on the elmo.

# 14 MR. DARDEN:

He was talking to me. But I have a 352 objection to these pictures, which I think have been somehow enhanced and modified to make the blood appear more apparent.

# 15 THE COURT:

So the record is--what is the next Defense exhibit?

# 16 THE CLERK:

1331.

# 17 THE COURT:

All right. Counsel, the one that is in controversy right now, I'm going to mark the small photograph--

# 18 MR. COCHRAN:

1331?

# 19 THE COURT:

Defendant's 1331, and we'll mark the blow-up of the same photograph as 1331-A.

# 20 MR. COCHRAN:

Thanks, Judge.

# 21 THE COURT:

And, Mr. Darden, your objection is that the blow-up seems to have--and I agree that the blow-up has a green tint to it in the background whereas the photograph, the small 5-by-7 photograph has a grayish tint to the marble and the washcloth appears to be white with what appears to be reddish staining, and in the blow-up, it appears to have a greenish rather than a grayish tint.

# 22 MR. DARDEN:

Okay. That's correct, which I would suggest--and I am--that the blow-up--blowing up process somehow has been used to enhance the colors to bring out the redness of the blood, if that's what it is on the washcloth, and I would point out, there have been no confirmatory tests what is or is not on that particular washcloth, and we should use the photographs taken by the Chicago Police Department which have not been filtered or enhanced or otherwise altered.

# 23 THE COURT:

Mr. Darden, is 1331 the Chicago Police Department photo?

# 24 MR. DARDEN:

Yes.

# 25 THE COURT:

All right.

# 26 MR. SHAPIRO:

Your Honor, for the record, I had this photo enhanced for the cross-examination of Dr. Baden when Mr. Kelberg on direct examination did not show this photograph to the witness, and we took it out to a lab overnight, that we asked them to reproduce it. We did not have it enhanced, change colors, do anything other than have it enlarged. This is the way it came back to our recollection, and so we did not use it because on redirect examination, Mr. Kelberg came back and brought that up as--you know, in his last question because he put in all the photos.

# 27 THE COURT:

Mr. Darden, are you objecting to the other two photos as well, the other two blow-ups? I don't understand why we're doing this.

# 28 MR. COCHRAN:

No. That's not why we are up here. I have one request, simple request.

# 29 MR. DARDEN:

I think we have the same problem with the other two photographs, but I'm not going to object to the other two photographs since the blood is so minimal and distortion I think is so minimal. And I'm not suggesting by my objection that someone is guilty of some impropriety. I'm just saying somehow through this process, you know, things are different.

# 30 THE COURT:

All right. I have before me two issues. The issue as I see it is the amount of blood that is relevant to the or what appears to be blood, which is relative to the nature of the injury that Mr. Simpson suffered and was bleeding in Chicago because these are photographs from the Chicago hotel room. And examining 1331, I see a streak of blood or what appears to be blood at the bottom of the folded washcloth. There appears to be then an area that shows something reddish, but not distinct, and then a more distinct reddish portion to the top of that. And I'm indicating that there's a small piece of glass to the lower right-hand corner of the washcloth just so that anybody reading this record can tell how the court has oriented the photograph. I'm holding it. I see the same markings although perhaps less distinct in the blow-up. I don't think it's a misrepresentation. The jurors will have both photographs and can compare one with the other. I think this is for illustrative purposes. Objection overruled.

# 31 MR. COCHRAN:

The reason I asked to come up, just briefly, in talking to Mr. Berris--

# 32 THE COURT:

Counsel, I've ruled.

# 33 MR. COCHRAN:

No. As I told you, this is why I'm up here. He brought this up. Mr. Berris, in one of the questions in talking to him, he says that the--when they got there, the laundry bags were missing in the room; and I'll bring that out, but any testimony about what the maid said about putting them in or whatever would be hearsay.

# 34 THE COURT:

Hearsay.

# 35 MR. COCHRAN:

I'm just trying to clear that up for the record and go forward.

# 36 MR. DARDEN:

I'm going to cross-examine him. So you'll have to make your objection when the time comes. Why are we having these previews of cross-examination?

# 37 MR. COCHRAN:

Because I'm trying to avoid lawyers getting dressed down in front of the jury for improper stuff.

KEY QUOTE

# 38 MR. DARDEN:

Would you reconsider advising the jury that my question this morning was not completely improper given the finding of factual basis for it--

# 39 THE COURT:

No.

# 40 MR. DARDEN:

--as being inherently unfair?

# 41 THE COURT:

That's something you've already asked me about. I've declined to do that and won't entertain it again. Thank you.

KEY QUOTE

# 42 MR. COCHRAN:

Thanks, Judge.

Temperature

procedural

Key Quotes (4)

Christopher Darden

I have a 352 objection to these pictures, which I think have been somehow enhanced and modified to make the blood appear more apparent.

Core objection — Darden argues the enlargement process itself constitutes prejudicial manipulation of the photographic evidence.

Lance A. Ito

I see a streak of blood or what appears to be blood at the bottom of the folded washcloth. There appears to be then an area that shows something reddish, but not distinct, and then a more distinct reddish portion to the top of that.

Ito conducts his own on-the-record forensic description of the photograph, building the factual basis for his ruling.

Johnnie Cochran

Because I'm trying to avoid lawyers getting dressed down in front of the jury for improper stuff.

Cochran explains why he raised the hearsay issue at sidebar — a jab implying Darden has been reckless with questions before the jury.

Lance A. Ito

That's something you've already asked me about. I've declined to do that and won't entertain it again. Thank you.

Flat, final rebuke to Darden's attempt to relitigate a morning ruling — unusually firm closure from the bench.

Evidence (2)

Defendant's 1331

Small 5-by-7 photograph of washcloth from OJ Simpson's Chicago hotel room, taken by Chicago Police Department, showing reddish staining

marked, examined by court, admitted

Defendant's 1331-A

Blow-up enlargement of Defendant's 1331, challenged as having greenish tint and enhanced coloration relative to original

marked, objection overruled, admitted for illustrative purposes

Notable Exchanges (3)

Christopher Darden•Robert Shapiro•Lance A. Ito

Shapiro explained the blow-up was produced overnight for Dr. Baden's cross-examination when Kelberg failed to show the photo on direct. He denied any enhancement instruction. Ito acknowledged the green tint discrepancy but found it not a misrepresentation, ruling jurors could compare both photos.

strategic

Christopher Darden•Lance A. Ito

After the ruling, Darden asked Ito to reconsider advising the jury that his morning question 'was not completely improper' given a factual basis had since been established. Ito said 'No' and shut it down immediately.

tense

Johnnie Cochran•Christopher Darden

Cochran raised the anticipated hearsay issue about a hotel maid's statements regarding missing laundry bags. Darden pushed back on the preview, asking why they were 'having these previews of cross-examination.'

strategic

Credibility Attacks (1)

⚔ Defense blow-up photographs

evidence tampering / alteration argument

Darden argued the enlargement process changed the color profile of the photograph to make blood more visually prominent, amounting to improper enhancement — though he expressly disclaimed alleging intentional misconduct.

Objections

2 objections (0 sustained, 1 overruled)

Proceeding 7406 • 42 utterances

Criminal Trial

Department 103