YOUR HONOR, THIS MORNING WE FOUND A COUPLE OF ADDITIONAL CASES THAT WE WANTED TO CITE TO THE COURT AND COUNSEL. I APOLOGIZE FOR NOT HAVING THEM IN THE POINTS AND AUTHORITIES. ONE WAS PEOPLE VERSUS BREAUX AT ONE CAL.4TH 281 AND THE RELEVANT DISCUSSION STARTS ON 302, AND THE OTHER CASE IS ALSO CALIFORNIA SUPREME COURT CASE, PEOPLE VERSUS PRIDE, AT 3 CAL.4TH, 195. RELEVANT DISCUSSION STARTS ON 234.
REGRETTABLY, YOUR HONOR, I ONLY THIS MORNING HAD A CHANCE TO BRIEFLY PERUSE THE MEMORANDUM THAT WAS SUBMITTED. I HAVE NOT OF COURSE HAD A CHANCE TO REVIEW THESE CASES OR THEIR APPLICABILITY TO THE ISSUE AT HAND. I EXPECT THAT MY CROSS-EXAMINATION OF THIS WITNESS IS GOING TO LAST FOR AT LEAST A COUPLE OF HOURS. I WOULD LIKE, BEFORE I AM REQUIRED TO RESPOND WITH ANY IN-DEPTH ANALYSIS, TO AT LEAST BE GIVEN THE CHANCE TO REVIEW THESE CASES, TO EXAMINE THEM. I BELIEVE, YOUR HONOR, THAT THE STATUTE ABOUT WHICH WE CONCERN OURSELVES IS CLEAR. I OFFERED A PARALLEL TO THAT STATUTE IN THE ESTES CASE. THOUGH IT IS NOT THE EXACT STATUTE, I DO THINK THAT THE REASONING OF THAT STATUTE IS VERY APPLICABLE TO THE ISSUE AT HAND. I DO THINK, YOUR HONOR, THAT THERE IS ANOTHER THRESHOLD ISSUE THAT IS RAISED AND THAT IS ONE OF 352 AS TO THE PROBATIVE NATURE OF THE SUBSTANTIVE STATEMENT, EVEN IN ANY EXCISED FORM. I THINK THAT THERE IS A TREMENDOUS QUESTION IN THE SCIENTIFIC COMMUNITY AS TO THE PREDICTIVE NATURE OF CERTAIN STATEMENTS ABOUT WHICH WE CONCERN OURSELVES. THEY ARE NOT PREDICTIVE OF EVENTS THAT MAY HAVE OCCURRED IN THE PAST OR PREDICTIVE OF THINGS IN THE FUTURE, AND THAT ENTIRE ISSUE IS ONE THAT IS MOST PROPERLY THE SUBJECT OF EXPERT TESTIMONY. THERE IS THE VERY STRONG LIKELIHOOD THAT IT IS GOING TO NECESSITATE CONFUSING OF ISSUES, THE UNDUE USE OF ADDITIONAL TIME, THE CERTAIN CALLING OF DIFFERENT WITNESSES WHO MIGHT BE EXPERTS ON THIS AREA WHO MIGHT THEN BE ABLE TO PLACE THESE STATEMENTS, EVEN IN ITS EXCISED FORM, IN A GREATER UNDERSTANDABLE CONTEXT FOR THE JURY. I OFFER TO THE COURT MY OPINION, AS I DID AT SIDE BAR, THAT I CANNOT PROPERLY ADDRESS THE CIRCUMSTANCES IN WHICH THE STATEMENT WAS ALLEGEDLY GIVEN, AND FOR THE RECORD, WE WILL DENY THAT THE STATEMENT WAS EVEN MADE, AND WE WILL STRONGLY CHALLENGE THE FACTUAL PREDICATE FOR THE GIVING OF THE STATEMENT, SUCH THAT WE WOULD THINK IT PROPER THAT THERE BE A HEARING CONSISTENT WITH EVIDENCE CODE 403 LAYING THE FOUNDATION FOR THE PRELIMINARY FACT THAT IN FACT THIS STATEMENT WAS EVEN GIVEN. FOR ALL THESE REASONS, YOUR HONOR, AND GIVEN THE FACT THAT I HAVE NOT HAD AN ADEQUATE CHANCE TO PROPERLY CROSS-EXAMINE OR TO PROPERLY REVIEW THESE CASES, THAT WE BE ALLOWED TO EXAMINE THIS WITNESS BECAUSE I'M READY TO EXAMINE THIS WITNESS, ON MATTERS OTHER THAN THIS DISPUTED AREA, THAT I BE GIVEN ADEQUATE TIME TO DO MY OWN INDEPENDENT RESEARCH, GIVEN THIS NEW INFORMATION, AND THAT THE WITNESS BE RECALLED LATER IN THE TRIAL OR THAT THAT PORTION OF HIS TESTIMONY BE HELD UNTIL LATER.
MRS. ROBERTSON, LET ME ASK YOU TO, IF YOU WOULD, MAKE TWO PHOTOCOPIES OF THE RELEVANT PORTIONS. MR. GOLDBERG.
YOUR HONOR, APPARENTLY THE DEFENSE HAS BEEN AWARE OF THE STATEMENT SINCE JANUARY THE 22ND, AND OBVIOUSLY IF THERE WERE ANY ISSUES AS TO LEGAL ADMISSIBILITY, THERE WAS PLENTY OF TIME TO RESEARCH THOSE TO ADDRESS THOSE TODAY. OBVIOUSLY THE PROSECUTION WANTS TO PUT THE STATEMENT ON AS PART OF MR. SHIPP'S TESTIMONY. THERE IS NO REASON FOR BREAKING UP HIS TESTIMONY AND HAVING HIM COME BACK LATER AFTER COUNSEL HAS HAD AN OPPORTUNITY TO DO A FURTHER LEGAL RESEARCH. DOES THE COURT WANT THE PROSECUTION TO ADDRESS OUR THEORY OF ADMISSIBILITY NOW AND THE ISSUES REGARDING THE STATEMENT?
OKAY. I WOULD FIRST LIKE TO START OUT WITH A DISCUSSION OF THE RELEVANCY OF THE STATEMENT BECAUSE I THINK COUNSEL SEEMS TO BE SUGGESTING UNDER 352 IT IS NOT ADMISSIBLE, AND ANY DISCUSSION PROBABLY SHOULD START WITH AN ISSUE OF WHY IS IT PROBATIVE, WHY IS IT RELEVANT? AND THEN I WILL GET INTO THE ISSUE OF THE POLYGRAPH ASPECT OF THE STATEMENT IN THE SECOND PART OF MY RESPONSE. AS TO THE PROBATIVE VALUE OF THE STATEMENT, YOUR HONOR HAS RULED ALREADY IN THE CONTEXT OF THE DOMESTIC VIOLENCE EVIDENCE THAT THE PROSECUTION IS ENTITLED TO PUT ON EVIDENCE IN THIS CASE AND APPARENTLY SPEND A SIGNIFICANT AMOUNT OF TIME DOING SO IN WHAT I THINK THE COURT CHARACTERIZED AS BEING THE EQUIVALENT OF SEVERAL MISDEMEANOR JURY TRIALS. WE ARE ENTITLED TO PUT ON THIS EVIDENCE FOR THE PURPOSES OF SHOWING THE DEFENDANT'S MENTAL STATE AND SHOWING HIS INTENTION AT OR AROUND THE TIME OF THE MURDER.
YEAH, THE CONTROVERTED STATEMENT, THOUGH, IS THE VERY NEXT DAY, SO I MEAN, WE ARE OUT OF THE CATEGORY OF DOMESTIC VIOLENCE, WOULDN'T YOU SAY?
I JUST WANT TO TIE IT IN AS TO WHY IT IS RELEVANT IN THE CONTEXT OF ALL OF THE EVIDENCE THAT THE COURT HAS ALLOWED. THE PURPOSE OF THAT EVIDENCE IS TO ALLOW THE JURY TO INFER SOMETHING CIRCUMSTANTIALLY ABOUT WHAT THE DEFENDANT WAS THINKING AT OR AROUND THE TIME OF THE MURDER, WHAT HIS MENTAL STATE AND HIS MOTIVATIONS WERE, CIRCUMSTANTIAL EVIDENCE, BECAUSE THE INFERENCE, THE CHAIN OF INFERENCE IS THAT WE CAN DETERMINE FROM HIS CONDUCT WHAT HIS INTENTION, WHAT HIS MENTAL STATE MUST HAVE BEEN. THE EVIDENCE PERTAINING TO MR. SHIPP DIFFERS IN ONLY ONE RESPECT AND THAT IS THAT INSTEAD OF BEING CIRCUMSTANTIAL EVIDENCE OF HIS INTENT AND HIS MENTAL STATE, IT IS DIRECT EVIDENCE, BECAUSE IT IS HIM SAYING THIS IS WHAT I HAVE BEEN THINKING AND FROM THE CONTEXT OF THE STATEMENT IT WAS OVER A PERIOD OF TIME. NOW, THE DISTINCTION THERE BETWEEN DIRECT AND CIRCUMSTANTIAL ISN'T DIRECTLY IMPORTANT. WHAT I WOULD SUGGEST TO THE COURT IS IMPORTANT IS THE WAY THAT THE -- THAT THE RESPECTIVE SIDES HAVE ASKED THE JURY AND THIS COURT TO INTERPRET THE CIRCUMSTANTIAL EVIDENCE, BECAUSE WHAT WE HAVE SAID, YOUR HONOR, IS WE HAVE SAID, LOOK, WHAT THIS EVIDENCE SHOWS IS IT SHOWS THAT THE DEFENDANT HAD AN OBSESSION WITH NICOLE SIMPSON AND THAT IT WAS AN OBSESSION THAT LED TO HER MURDER. I GUESS WE COULD TERM A FATAL OBSESSION. ISN'T THAT PRECISELY WHAT THE STATEMENT TO MR. SHIPP IS SAYING? "I HAVE BEEN DREAMING ABOUT KILLING MY WIFE." ISN'T THAT POWERFUL, POWERFUL EVIDENCE OF THAT FATAL OBSESSION, EXCEPT THAT INSTEAD OF COMING IN THE FORM OF CIRCUMSTANTIAL EVIDENCE, IT IS COMING IN THE FORM OF DIRECT EVIDENCE? THE DEFENSE, ON THE OTHER HAND, HAS A DIFFERENT INTERPRETATION OF THE DOMESTIC VIOLENCE EVIDENCE. THEY SAY, NO, IT IS NOT REALLY EVIDENCE THAT SHOWS THE DEFENDANT'S STATE OF MIND IN TERMS OF A FATAL OBSESSION. WHAT IT REALLY SHOWS IS A CYCLE OF BENEVOLENCE, AND THEY ARE ENTITLED TO MAKE THAT ARGUMENT, YOUR HONOR. WE ARE NOT SAYING THAT THAT IS IMPROPER. THAT IS A PROPER JURY ARGUMENT.
BUT WHEN THEY ARE ALLOWED TO STAND BEFORE THE JURY AND SAY THAT ALL THAT THE CIRCUMSTANTIAL EVIDENCE THAT THE PROSECUTION HAS INTRODUCED SIMPLY SHOWS A CYCLE OF BENEVOLENCE AND WE HAVE DIRECT EVIDENCE WHICH CONCLUSIVELY SHOWS THAT THAT ISN'T TRUE --
MR. GOLDBERG, LET'S SORT OF LEAP AHEAD TO WHAT REALLY CONCERNS ME. I AGREE THAT IT IS AN INTERESTING STATEMENT, AND WERE I IN YOUR SHOES, I WOULD PROBABLY WANT TO GET IT BEFORE THE JURY. WHAT CONCERNS ME ABOUT THIS IS TWO THINGS: ONE, THE 351.5 PROHIBITION OF ANY MENTION OF POLYGRAPH OR LIE DETECTOR WHICH IS INCLUDED IN THE CONTEXT OF THIS STATEMENT. AND SECONDLY, THE -- WHETHER OR NOT IT IS FAIR OR SOMEHOW FUNDAMENTALLY MISLEADING TO THE TRIER OF FACT TO PLUCK THIS SENTENCE OUT OF THE CONTEXT IN WHICH IT WAS SAID, WHICH IS BEGINNING AND ENDING WITH COMMENTS ABOUT POLYGRAPH. SO IS IT FAIR TO PLUCK THIS OUT? THAT IS THE CONCERN THAT I HAVE.
I MEAN, THAT IS THE PROBLEM THAT I SEE, ASSUMING YOU GET OVER THE RELEVANCE QUESTION AND ASSUMING I AGREE WITH YOU THAT IT HAS SOME PROBATIVE VALUE AND WOULD BE OF INTEREST TO THE PROSECUTION CASE AND THAT IT CLEARLY IS VIRTUALLY CONTEMPORANEOUS TO THE ACTS IN QUESTION.
THE ONLY REASON THAT I WAS TALKING ABOUT RELEVANCY AND PROBATIVE VALUE IS THAT THERE IS A SPILL-OVER EFFECT ON THIS QUESTION THAT THE COURT IS CONCERNED OF, YOU CAN SEVER PART OF THE STATEMENT OUT AND THEN LEAVE THE PORTION ABOUT THE DEFENDANT DREAMING ABOUT KILLING HIS WIFE AND IS THAT FAIR?
MR. GOLDBERG, LET ME ASK YOU THIS, BECAUSE YESTERDAY IN THE DISCUSSIONS THAT I HAD, NOBODY GAVE ME A PRECISE OFFER AS TO EXACTLY WHAT STATEMENTS WERE GOING TO BE OFFERED.
OKAY. LET ME READ THE ENTIRETY OF THE STATEMENT, INCLUDING THE PORTIONS THAT I BELIEVE THE COURT FINDS TO BE OBJECTIONABLE, AS WELL AS THOSE THAT THE PROSECUTION WANTS TO INTRODUCE.
THANK YOU.
"I WAS INTERVIEWED BY DETECTIVES AND THEY ASKED ME TO TAKE A LIE DETECTOR TEST AND I REPLIED, 'WELL, WHAT DID YOU SAY?'" THIS IS MR. SHIPP TALKING.
"AND HE KIND OF CHUCKLED AND HE SAYS, 'HEY, TO BE TRUTHFUL, RON, MAN, I'VE HAD A LOT OF DREAMS ABOUT KILLING HER.' AND HE SAYS, 'I REALLY DON'T KNOW ABOUT TAKING THAT THING.' HE DID NOT SAY HE WOULDN'T TAKE IT. HE SAYS, 'I REALLY DON'T KNOW ABOUT TAKING IT," SO THAT IS THE FULL CONTEXT OF MR. SHIPP'S STATEMENT TO US. THE PORTION THAT WE WANT TO INTRODUCE IS MERELY THE PORTION THAT SAYS, "HEY, TO BE TRUTHFUL, RON, MAN, I'VE HAD A LOT OF DREAMS ABOUT KILLING HER," UNQUOTE. THAT IS THE PORTION THAT WE ARE INTERESTED IN. BUT TO GET BACK TO THE ISSUE THAT THE COURT ADDRESSED, THE REASON THAT I MADE SOME COMMENTS ABOUT RELEVANCY IS THAT IN OUR STATE UNDER OUR CONSTITUTION, ARTICLE 1, SECTION 28, WE DO HAVE A RIGHT TO TRUTH IN EVIDENCE IN THIS STATE AND THERE ARE ONLY CERTAIN SPECIFIED EXCEPTIONS TO THAT RIGHT, AND THOSE EXCEPTIONS ARE THAT A STATEMENT CAN BE EXCLUDED -- THE STATEMENT CAN BE EXCLUDED OR EVIDENCE CAN BE EXCLUDED IF IT IS PRIVILEGED, WHICH THIS ISN'T, IF IT IS HEARSAY, WHICH THIS ISN'T, IF IT IS 352, WHICH THIS ISN'T, IF IT IS PROTECTED BY THE RAPE SHIELD LAW THAT IS CODIFIED IN 1103 AND 782, WHICH THIS ISN'T, OR IF IT IS TAKEN IN VIOLATION OF FEDERAL CONSTITUTION, WHICH IT ISN'T. AND THAT IS WHAT THE CONSTITUTION SAYS, OF OUR STATE, IT SHALL BE ADMITTED. THIS IS HIGHLY RELEVANT EVIDENCE AND IT DOESN'T COME UNDER ANY OF THE EXCEPTIONS AND THEREFORE SHOULD BE ADMITTED. LET ME JUST POINT OUT THAT AS TO THE STATEMENT THAT THE CONTEXT OF THE STATEMENT WAS RELATING TO THE POLICE INTERROGATION, JUST TO PUT THE QUOTED PORTION IN CONTEXT, YOUR HONOR, HE WAS TALKING ABOUT HIS CONVERSATIONS WITH THE POLICE IN THE CONTEXT OF MAKING THE STATEMENT THAT I PREVIOUSLY QUOTED. THEREFORE THE ISSUE BECOMES, YOUR HONOR, ARE WE SOMEHOW GOING TO, CONTRARY TO THE CLEAR POLICY OF THE RIGHT TO TRUTH IN EVIDENCE PROVISION, EXCLUDE HIGHLY PROBATIVE EVIDENCE, EVIDENCE WHICH REALLY SEEMS TO BLOW A HOLE IN THE DEFENSE THEORY OF THE CYCLE OF BENEVOLENCE SIMPLY BECAUSE CONTAINED WITHIN THAT STATEMENT THAT THERE ARE OTHER MATERIALS WHICH YOUR HONOR IS RIGHTFULLY CONCERNED ABOUT AND WHICH ARE INADMISSIBLE? AND CLEARLY THE LAW DOES NOT LEAD US TO WHAT IN OUR VIEW WOULD BE AN ABSURD CONCLUSION. I WOULD LIKE TO GET INTO THAT LEGAL CONCLUSION NOW WHICH I THINK IS WHAT IS AT THE FOREFRONT OF THE COURT'S CONCERN. AND STARTING WITH EVIDENCE CODE SECTION 356, WHICH I BELIEVE IS THE SECTION THAT IS RELIED ON BY COUNSEL, WHICH LIKE EVIDENCE CODE SECTION 352 I THINK HAS BEEN OVERSIMPLIFIED AGAIN AND AGAIN BY ATTORNEYS AND MISSTATED BY ATTORNEYS IN TERMS OF WHAT IT REALLY STANDS FOR. THE COURT MAY RECALL THAT WHEN WE ADDRESSED 352 LAST I POINTED OUT THAT OFTENTIMES ATTORNEYS TALK ABOUT SOMETHING BEING MORE PREJUDICIAL THAN PROBATIVE AND THEY CUT OUT THAT WORD "SUBSTANTIALLY" MORE PREJUDICIAL THAN PROBATIVE. OVER AND OVER AGAIN IN OUR COURTS WE SEE ATTORNEYS SAYING, WELL, YOUR HONOR, IF THEY PUT IN PART OF THE STATEMENT, I GET TO PUT IN THE WHOLE STATEMENT. I THINK YOUR HONOR HAS PROBABLY HEARD THAT. AND THAT IS NOT THE LAW OF THE STATE OF CALIFORNIA AND IT NEVER HAS BEEN, YET IT IS CONTINUOUSLY REPEATED AS IF IT WERE HANDED DOWN BY MOSES FROM THE MOUNT. IT IS NOT WHAT EVIDENCE CODE SECTION 356 SAYS AND IT IS NOT WHAT THE CASES SAY THAT INTERPRET THAT STATUTE.
WHAT THE STATUTE STANDS FOR IS THE VERY COMMON SENSE PROPOSITION THAT WHEN YOU PUT IN PART OF THE STATEMENT AND THE OTHER SIDE CAN DEMONSTRATE THAT IT IS NECESSARY TO PUT IN ANOTHER PART OF THAT STATEMENT, TO PUT IT IN CONTEXT, THAT THAT CAN BE ALLOWED, AND THERE ARE A NUMBER OF CASES THAT INTERPRET 356 IN THAT WAY, ONE OF WHICH WE CITED IN OUR BRIEF, THE OTHER TWO WHICH I PROVIDED THIS MORNING. ONE BEING PEOPLE VERSUS BREAUX, THAT WAS AT 1 CAL.4TH 281, AND WHAT IT SAYS OF EVIDENCE CODE SECTION 356 IS:
"THE SECTION PERMITS INTRODUCTION ONLY IF STATEMENTS ON THE SAME SUBJECT OR WHICH ARE NECESSARY FOR THE UNDERSTANDING OF THE STATEMENT ALREADY INTRODUCED. THE OTHER CONVERSATION REFERRED TO IN THE EVIDENCE CODE SECTION 356 MUST HAVE SOME BEARING UPON OR CONNECTION WITH THE ADMISSIONS OR DECLARATION IN EVIDENCE." SO IN OTHER WORDS WHEN WE NEEDED TO PUT SOMETHING IN CONTEXT, THEN WE CAN USE EVIDENCE CODE SECTION 356 TO DO THAT. I THINK THE CASE OF PEOPLE VERSUS PRIDE IS MORE INSTRUCTIVE FOR YOUR HONOR AND THERE WHAT HAPPENED AT 3 CAL.4TH 195 IS THE DEFENDANT GAVE A VERY LENGTHY TAPE-RECORDED INTERVIEW TO THE POLICE THAT OCCURRED OVER A COURSE OF APPROXIMATELY TWO HOURS, AND INSTEAD OF PRODUCING THE TAPE-RECORDING, WHAT THE PROSECUTION DID IS THEY CALLED THE DETECTIVE THAT TOOK THE STATEMENT TO THE STAND AND THEY ASKED HIM ABOUT ONLY ONE TINY LITTLE SNIPPET OF THAT CONVERSATION. THAT WAS THE STATEMENT TO THE EFFECT THAT THE DEFENDANT ACCOUNTED FOR HIS WHEREABOUTS AND THOSE WHEREABOUTS WERE FALSE, SO THE PROSECUTION SIMPLY WANTED TO PROVE THAT IN A COUPLE SENTENCES OF THAT LENGTHY INTERVIEW HE HAD MADE A FALSE STATEMENT. AND THE DEFENSE SAYS, WELL, WE WANT TO PUT IN THE WHOLE THING. WE WANT TO PUT IN THE WHOLE THING TO SHOW THAT MAYBE THE DEFENDANT'S STATE OF MIND WAS SUCH THAT HE WAS CONFUSED OR WASN'T REALLY FOCUSING IN ON WHAT THE DETECTIVE WAS ASKING HIM. WE WANT TO PUT IT IN MAYBE TO SHOW THAT HE WAS GIVING AN ESTIMATION OR APPROXIMATION IN ACCOUNTING FOR HIS WHEREABOUTS, AS OPPOSED TO A DEFINITIVE TYPE STATEMENT. TRIAL COURT THERE DID NOT ALLOW IT IN AND WHAT THE CALIFORNIA SUPREME COURT HELD WAS THAT IT WAS PROPERLY EXCLUDED BECAUSE THEY REVIEWED THE TAPE THEMSELVES AND THEY FOUND THAT IT WOULD HAVE BEEN AN ABUSE OF DISCRETION TO ADMIT THE REST OF THE TAPE BECAUSE IT DOES NOT SUPPORT THE DEFENDANT'S THEORY THAT THERE WAS PSYCHOLOGICAL COERCION, IT DID NOT HELP TO EXPLAIN OR ACCOUNT FOR THE STATEMENT, AND IN FACT THE TAPE AMPLY SUPPORTED THE PROSECUTION'S THEORY THAT THE DEFENDANT GAVE A POSITIVE ACCOUNTING FOR HIS TIME WHICH TURNED OUT TO BE FALSE. SO THEY HELD THAT IF THE COURT HAD ADMITTED IT, IT WOULD HAVE BEEN AN ERROR, SO I THINK THAT VERY, VERY STRONGLY SUPPORTS WHAT THE PROSECUTION IS ASKING YOUR HONOR TO DO HERE. NOW, LET'S TAKE A LOOK BACK AT THE DEFENDANT'S STATEMENT TO MR. SHIPP. THE QUOTE BEING:
"HEY, TO BE TRUTHFUL, RON, MAN, I'VE HAD A LOT OF DREAMS ABOUT KILLING HER." IN AND OF ITSELF THE STATEMENT IS PERFECTLY UNDERSTANDABLE. IT IS PERFECTLY CLEAR. IT IS THE DEFENDANT SAYING I HAVE DREAMED ABOUT KILLING THIS WOMAN. IT IS VERY SIMPLE, VERY STRAIGHTFORWARD. WHAT IS THE STATEMENT THAT IMMEDIATELY PRECEDED THAT?
"I WAS INTERVIEWED BY THE DETECTIVE AND THEY ASKED ME TO TAKE A LIE DETECTOR TEST" AND THEN HE CHUCKLES. HOW DOES THAT POSSIBLY PUT ANY DIFFERENT SPIN ON THE STATEMENT? IT DOESN'T EXPLAIN THE STATEMENT, QUALIFY THE STATEMENT, RETRACT THE STATEMENT. IT DOESN'T DO ANYTHING TO MAKE THE STATEMENT MORE UNDERSTANDABLE. HOW DOES THE FACT THAT HE SAYS I WAS OFFERED TO TAKE A LIE DETECTOR TEST EITHER CONTRIBUTE OR DETRACT FROM THE STATEMENT THAT HE WAS DREAMING ABOUT KILLING HIS WIFE? DOES IT MAKE IT MORE LIKELY THAT HE WAS DREAMING ABOUT KILLING HIS WIFE OR LESS LIKELY? I WOULD SUBMIT TO YOU THAT IT IS LOGICALLY ENTIRELY IRRELEVANT AND THIS IS A STATEMENT WHICH STANDS ALONE WHICH IS PERFECTLY COMPREHENSIBLE, PERFECTLY UNDERSTANDABLE IN AND OF ITSELF. AND THAT IF YOU SUBTRACT THE PARTS ABOUT THE POLYGRAPH TEST, YOU DON'T LOSE ANYTHING AT ALL. I THINK THE DEFENSE WILL HAVE DIFFICULTY ARTICULATING WHY YOU DID LOSE SOMETHING, BUT EVEN IF THEY CAN, THEN I WOULD ASK THE COURT TO REFER BACK TO PEOPLE VERSUS PRIDE WHERE THE DEFENSE THREW OUT SOME THEORIES THERE AS WELL AS TO WHY THEY NEEDED THE ENTIRE TAPE AND THE COURT REVIEWED IT, MADE ITS OWN DETERMINATION AND SAID NO, I DON'T BUY THAT, THAT DOESN'T EXPLAIN, QUALIFY OR IN ANY WAY DETRACT FROM THE STATEMENT, AND IT WAS UPHELD BY THE CALIFORNIA SUPREME COURT.
ALL RIGHT. HOW DOES THE -- BUT WE HAVE SORT OF THE INVERSE SITUATION HERE WHERE THEY DON'T WANT THE CONTEXT BECAUSE OF THE DISCUSSION OF POLYGRAPH AND THE NEGATIVE IMPLICATION THAT CAN BE DRAWN FROM THAT BY THE TRIER OF FACT, NOT FULLY AWARE OF THE NATURE AND CIRCUMSTANCES OF THE ADMISSIBILITY OF THE POLYGRAPH EVIDENCE.
WELL, THEN IT SOUNDS LIKE IF THAT IS THE CASE, WE ARE ALL IN AGREEMENT. I MEAN, THEN I REALLY DON'T UNDERSTAND WHAT THE ARGUMENT IS ABOUT, BECAUSE IF WE ARE SAYING ALL WE WANT IS THE STATEMENT AND THEY ARE SAYING ALL WE WANT IS THE STATEMENT, WHERE IS THE DISAGREEMENT?
WELL, I WILL HEAR WHAT THEIR POSITION IS IN A SECOND. I'M JUST ASKING YOU SINCE IT IS THE INVERSE SITUATION.
YEAH, YEAH. I THINK THAT WHAT THEY ARE TRYING TO DO IS ESSENTIALLY SAYING, WELL, WE DON'T WANT THE STATEMENT EITHER, BUT WE ARE GOING TO SAY THAT WE WANT THE STATEMENT KIND OF BECAUSE MAYBE IF WE DO THAT THE COURT WILL THROW THE WHOLE THING OUT, THE BABY WITH THE BATH WATER. AND THE ANALOGY THAT I COME UP WITH THERE, YOUR HONOR, IS IT IS VERY ANALOGOUS TO THE SITUATION THAT YOUR HONOR HAS UNDOUBTEDLY CONFRONTED IN THE CONTEXT OF ARANDA ISSUES WHERE THE PROSECUTION WANTS TO INTRODUCE THE STATEMENT OF THE CO-DEFENDANT -- OF THE DEFENDANT WHICH IMPLICATES THE CO-DEFENDANT AND WE SAY, WELL, YOUR HONOR, JUST REDACT OUT THE STUFF THAT REFERS TO THE CO-DEFENDANT SO WE COULD HAVE A JOINT TRIAL OF THESE TWO DEFENDANTS.
THE -- THAT ATTEMPT IS ALWAYS GOING TO BE FOILED OR THEY ARE ALWAYS GOING TO ATTEMPT TO FOIL IT BY SAYING WE HAVE TO PUT IN THE CO-DEFENDANT'S STATEMENT IN ORDER TO PLACE -- WE HAVE TO PUT IN THE STATEMENT THAT REFERS TO THE CO-DEFENDANT IN ORDER TO PLACE INTO PROPER CONTEXT OUR CLIENT'S STATEMENT. AND IN REALITY WHAT I THINK IS HAPPENING IS AN EFFORT TO PUT IN SOMETHING THAT REALLY DOESN'T LOGICALLY HELP THEM FOR THE PURPOSES OF GETTING A SEVERANCE, YET THE COURTS HAVE OVER AND OVER AGAIN, PERHAPS YOUR HONOR HAS BEEN IN THIS SITUATION, REDACTED THOSE STATEMENTS UNDER ARANDA AND SAID, NO, YOU CAN'T PUT IN YOUR CLIENT'S STATEMENTS WHICH IMPLICATE THE CO-DEFENDANT BECAUSE THEY AREN'T LOGICALLY NECESSARY HERE. THE OTHER ANALOGY I GIVE THE COURT IN TERMS OF PRACTICAL SITUATIONS WHERE THIS COMES UP IS IN THE CONTEXT OF A DEFENDANT'S CONFESSION WHERE HE, IN A LENGTHY TAPE-RECORDED STATEMENT, WHERE MANY, MANY TOPICS ARE DISCUSSED, DISCUSSES THINGS THAT ARE CLEARLY INADMISSIBLE, FOR EXAMPLE, SOMETIMES DEFENDANTS WILL TALK ABOUT THEIR PRIOR CRIMINAL HISTORY, WHAT THEY WERE DOING IN STATE PRISON, THINGS THAT CLEARLY DON'T COME IN, AND THOSE ARE REDACTED OUT ALL THE TIME. AND I DON'T THINK THE DEFENSE CAN BE HEARD TO SAY, WELL, THOSE ARE PREJUDICIAL TO US SO WE DON'T WANT THEM TO BE HEARD BY THE JURY, THEREFORE YOU HAVE TO THROW OUT THE WHOLE STATEMENT. I MEAN, I UNDERSTAND THE DEFENSE HERE IS IN A TACTICAL BIND. I MEAN, THEY DON'T WANT THE STATEMENT ABOUT POLYGRAPH TO COME IN, BUT APPARENTLY THEY ALSO WANT TO ARGUE THAT IT SHOULD COME IN IN ORDER TO GET THE WHOLE STATEMENT REMOVED, AND I JUST DON'T THINK THAT THAT IS A CONSISTENT POSITION. THEY ARE GOING TO BE ABLE TO ADDRESS US AND MAYBE WE WILL HEAR AND THEY WILL CLARIFY WHAT THEIR POSITION IS, MAYBE THEY WILL CLARIFY THAT INDEED WE ARE ALL IN AGREEMENT HERE, THAT STATEMENT DOESN'T COME IN PERTAINING TO POLYGRAPHS. BUT THE PORTION ABOUT WANTING TO KILL THE WIFE STANDS ALONE, IT IS HIGHLY RELEVANT AND IT SHOULD BE ADMITTED.
ALL RIGHT. THANK YOU, MR. GOLDBERG. MR. DOUGLAS, YOU HAVE BEEN GIVEN PHOTOCOPIES OF PEOPLE VERSUS PRIDE AND BREAUX.
THANK YOU, YOUR HONOR, AND I HAVE HAD A CHANCE TO READ THE CITED PORTIONS OF THE CASES THAT MR. GOLDBERG REFERRED TO AND I APPRECIATE THE COURT'S CONVENIENCE IN THAT MATTER. LET ME BEGIN BY SAYING CATEGORICALLY THAT WE DENY THAT THE CONVERSATION EVER TOOK PLACE OR THAT THE STATEMENTS WERE EVER MADE, THAT THE COURT MUST UNDERSTAND AS A PREDICATE, SO THAT THE COURT CAN APPRECIATE THE SERIOUSNESS WITH WHICH I WILL THEN HAVE TO CROSS-EXAMINE THE WITNESS ABOUT THE ENTIRE CONVERSATION. I'M NOT SURE HOW MANY PEOPLE CHARGED WITH MURDER MR. GOLDBERG HAS EVER REPRESENTED, SO I DON'T KNOW HOW HE IS ABLE TO GET INTO THE DEFENSE ATTORNEY'S MIND AND TO UNDERSTAND WHAT IT IS THAT THE DEFENSE ATTORNEY HAS TO DO, BUT YOUR HONOR, LET ME TELL YOU THERE IS A STATEMENT THAT IS MADE IN CONNECTION WITH A CONVERSATION ABOUT POLYGRAPHS, AND MOST IMPORTANTLY RIGHT BEFORE THE QUESTION COMMENT IS MADE THERE IS THEN A CHUCKLE, HE KIND OF CHUCKLES. THEN, YOUR HONOR, AS THE COURT UNDERSTANDS AS A FORMER DEFENSE ATTORNEY, I AM GOING TO EXAMINE THIS WITNESS ABOUT EVERYTHING, GIVEN THE CONTEXT OF THAT CONVERSATION, BECAUSE AS I SAID AS A PREDICATE, THE CONVERSATION DID NOT OCCUR, AND I AM GOING TO TRY TO DEMONSTRATE THAT HE IS LYING WHEN HE SAYS THAT MR. SIMPSON TOLD HIM THAT THERE WAS A DREAM ABOUT GIVING -- ABOUT KILLING HIS WIFE. BUT YOUR HONOR, WE HAVE A PROBLEM, A PROBLEM THAT MR. GOLDBERG'S MEMO, A PROBLEM THAT THE PRIDE CASE, A PROBLEM THAT THE OTHER CASE DOES NOT ADDRESS, AND THAT IS PENAL CODE SECTION 351.1 WHICH IS A CODE SECTION STANDING ALONE WHICH SAYS:
"NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE RESULTS OF A POLYGRAPH EXAMINATION, THE OPINION OF A POLYGRAPH EXAMINER OR ANY REFERENCE TO AN OFFER TO TAKE A FAILURE TO TAKE OR THE TAKING OF A POLYGRAPH EXAMINATION SHALL NOT BE ADMITTED INTO EVIDENCE IN ANY CRIMINAL PROCEEDING." I AM THEN IN A QUANDARY. UNDER NO CIRCUMSTANCES IS THE LAW ENABLING ANYONE, AND I'M NOT GOING TO WAIVE THAT -- THAT CODE SECTION'S APPLICABILITY TO THIS CASE, BUT IN NO -- IN NO SENSE DOES THE LAW ALLOW ANY DISCUSSION, REFERENCE CONCERNING POLYGRAPHS TO BE ADMITTED, YET IN THE STATEMENT WHERE I MUST ATTEMPT TO CHALLENGE THE AUTHENTICITY AND THE ACCURACY, THERE IS A CHUCKLE. QUERY: WHAT DOES THAT CHUCKLE MEAN? DOES THAT CHUCKLE MEAN THAT MR. SIMPSON IS TAKING A FLIP SENSE OF THE WHOLE CONCEPT OF A POLYGRAPH? DOES THAT CHUCKLE PRESAGE THE JOKE THAT WAS MADE BY THE QUESTIONED LANGUAGE SUCH THAT THE JURY CAN UNDERSTAND THAT THE QUESTIONED LANGUAGE WAS GIVEN IN TERMS OF A JOKE, BECAUSE THE SPEAKER HAS A GENERAL FLIPPANT, JOKING SENSE OF POLYGRAPHS IN GENERAL? I AM UNABLE TO CHALLENGE THAT. I AM UNABLE TO PUT THIS STATEMENT, WHICH I SAY NEVER OCCURRED, IN ANY KIND OF A CONTEXT, AND THAT IS UNFAIR. THAT DENIES ME DUE PROCESS RIGHTS. THAT DENIES ME CONFRONTATION CLAUSE RIGHTS. THAT VIOLATES MR. SIMPSON'S SIXTH AMENDMENT RIGHTS UNDER BOTH THE CALIFORNIA AND THE FEDERAL CONSTITUTION. AND THAT IS NOT JUST A TECHNICALITY, YOUR HONOR. THAT GOES TO THE VERY ESSENCE OF WHAT A FAIR TRIAL IS ALL ABOUT. I CANNOT CHALLENGE A STATEMENT THAT I SAY NEVER OCCURRED, A STATEMENT WHERE THERE IS, EVEN FROM THE MOUTHS OF THE WITNESS, INFORMATION THAT MIGHT SUGGEST THAT THE STATEMENT WAS NOT OFFERED IN TOTAL SERIOUSNESS, IN TRUE APPRECIATION FOR THE VALUE OF THAT STATEMENT. AND THERE IS ANOTHER PROBLEM WHICH RUNS INTO 352. I AM INFORMED, ALTHOUGH I HAVE NOT SPOKEN TO ANYONE PROFESSIONALLY, THAT WHENEVER THERE ARE STATEMENTS OF DREAMS OR QUESTIONS OF DREAMS, IT IS NOT NECESSARILY INDICATIVE OF THE STATE OF MIND OF THE SPEAKER. IT DOES NOT NECESSARILY MEAN THAT IF HE DREAMT SOMETHING IT IS RELEVANT TO AN ISSUE IN THE CASE THAT HE KILLED HER, AND THAT THERE IS A MISCONCEPTION, THAT MR. GOLDBERG APPARENTLY HOLDS AS WELL, THAT THERE IS SOME PROBATIVE NEXUS BETWEEN SOMEONE SAYING THAT I DREAMT ABOUT SOMETHING, ASSUMING FOR THE SAKE OF MY STATEMENT THAT THE STATEMENT WAS MADE, AND THAT IT MEANS SOMETHING THAT IS RELEVANT TO THE TRIER OF FACT. THEREFORE, THERE IS GOING TO BE A GREAT DEAL OF SCIENTIFIC TESTIMONY THAT I WILL HAVE TO TRY TO OBTAIN TO PUT ON PEOPLE THAT WILL BE ABLE TO TALK ABOUT DREAMS AND PARTICULARLY IN THE CONTEXT WHEN THIS MAN IS TOLD THAT VERY DAY THAT A WOMAN WITH WHOM HE HAD BEEN INVOLVED FOR SEVENTEEN YEARS HAD JUST DIED AND HE IS GOING THROUGH -- AND HE WASN'T AROUND, AND HE IS TOLD ON THE TELEPHONE THAT THIS HAPPENS AND HE RUSHES BACK AND HE IS CONSUMED WITH ALL OF THIS GRIEF AND ALL OF THIS UNCERTAINTY AND ALL OF THIS EMOTION AND HE IS TIRED BECAUSE HE DIDN'T SLEEP GOING TO CHICAGO AND DIDN'T SLEEP COMING BACK AND THERE ARE THESE FAMILY MEMBERS THAT ARE ALSO GRIEVING WITH HIM. THERE IS AN ENTIRE CONTEXT, YOUR HONOR, THAT IT WOULD BE UNFAIR TO REQUIRE THAT WE SIMPLY EXAMINE UNDER A MICROSCOPE SIX OR SEVEN DIFFERENT WORDS WITHOUT APPRECIATING THE ENTIRE CONTEXT IN WHICH IT IS OFFERED. I ARGUE, YOUR HONOR, THAT ON THIS LEVEL THE ANSWER IS CLEAR: WHEN YOU MUST BALANCE THE OBLIGATIONS OF THE PEOPLE AND THEIR INTERESTS IN GETTING IN THIS EVIDENCE AGAINST THE POSSIBLE DANGER OF UNFAIR PREJUDICE, AGAINST THE POTENTIAL FOR CONSUMING UNDUE TIME, AGAINST THE INABILITY FOR ME TO VIGOROUSLY CONTEST THE VERY CONTEXT IN WHICH THE STATEMENT IS WEIGHED, THE RESULTS ARE CLEAR AND YOU SHOULD RULE IN FAVOR OF NOT ALLOWING THE STATEMENT TO COME IN.
I'M INTERESTED, MR. GOLDBERG, IN MR. DOUGLAS' ARGUMENT OF WHAT IS THE SIGNIFICANCE OF DREAMS.
WELL, I WAS ALSO VERY INTERESTED BY THAT ARGUMENT, TOO, BECAUSE IT SEEMS TO BE SO PREPOSTEROUS. I MEAN, LET'S IMAGINE, FOR EXAMPLE, YOUR HONOR, THAT HE SIMPLY HAD SAID I HAVE BEEN DREAMING ABOUT NICOLE EVERY DAY OF MY LIFE OR I HAVE BEEN DREAMING ABOUT NICOLE CONSTANTLY, NOT THAT HE WAS GOING TO KILL HER, JUST THAT HE HAD BEEN DREAMING ABOUT NICOLE. WOULDN'T THAT IN AND OF ITSELF BE RELEVANT TO SHOW THIS ISSUE OF THIS OBSESSION, THIS FIXATION ON THIS WOMAN, THAT HE HAS NOT LET GO OF IT -- LET GO OF HER? THE FACT THAT HE IS DREAMING ABOUT KILLING HER SIMPLY MAGNIFIES SEVERAL HUNDREDFOLD THE RELEVANCE OF THE STATEMENT THAT HE HAS BEEN DREAMING ABOUT NICOLE. IT IS HIGHLY RELEVANT AND HIGHLY MATERIAL HERE.
ARE YOU GOING TO OFFER SOME PSYCHIATRIC OR PSYCHOLOGICAL TESTIMONY TO BACK THIS UP, THAT THERE IS SOME PROBATIVE VALUE TO THIS?
IF IT IS ADMISSIBLE, WE WILL. IF THE COURT -- YOU KNOW, WE HAVE LITIGATED EXTENSIVELY THIS ISSUE OF CAN WE PUT IN EXPERT TESTIMONY, AND I WASN'T ABSOLUTELY CLEAR WHAT THE BOTTOM LINE RULING OF THE COURT WAS ON THAT ISSUE, BUT OBVIOUSLY THE COURT KNOWS WE WOULD LIKE TO PUT ON EXPERT TESTIMONY. BUT I THINK THAT WHETHER YOU HAVE EXPERT TESTIMONY OR NOT, THIS IS THE KIND OF ISSUE THAT PEOPLE UNDERSTAND FROM THEIR OWN EXPERIENCE AND WE ALL HAVE DREAMS AND EVERY PERSON ON THAT -- THAT JURY DOES, AND THEY UNDERSTAND FROM THEIR OWN EXPERIENCE THE SIGNIFICANCE OF THIS KIND OF EVIDENCE. AND I THINK EVEN YOUR HONOR, AS A CASE OF FIRST IMPRESSION, WHEN I STARTED ADDRESSING YOU THIS MORNING, YOU KNOW, CUTS ME OFF, SAID, WELL, MR. GOLDBERG -- I KIND OF AM PARAPHRASING NOW -- I SORT OF APPRECIATE THE RELEVANCE HERE. I'M MORE CONCERNED ABOUT THIS POLYGRAPH ISSUE, BECAUSE I THINK THAT AS A MATTER OF COMMON SENSE THAT A PERSON LOOKING AT THIS, EVEN ON A CASE OF FIRST IMPRESSION, IS GOING TO UNDERSTAND HOW HIGHLY PROBATIVE IT IS. I WOULD ALSO LIKE TO ADDRESS SOME OF THE OTHER COMMENTS THAT WERE MADE JUST A FEW MOMENTS AGO. FIRST OF ALL, AS TO THE CHUCKLE, I DON'T UNDERSTAND THE DEFENSE ARGUMENT HERE. I THOUGHT WE WERE GOING TO GET CLARIFICATION AND NOW I AM EVEN LESS CLEAR. DO THEY WANT THE STATEMENT ABOUT THE POLYGRAPH IN OR DO THEY NOT WANT IT IN?
THEY DON'T WANT ANY OF IT IN, WE KNOW THAT, BUT IF THEY ARE GOING TO GET THE STATEMENT ABOUT THE DREAMS IN, THEN I'M NOT CLEAR, DO THEY FEEL THEY NEED TO THEN BRING IN THE POLYGRAPH FOR PURPOSES OF EXPLAINING IT OR DO THEY STILL NOT WANT TO? I DON'T THINK THAT POSITION HAS AT ALL BEEN CLARIFIED FOR US AND I THINK THAT THE REASON THAT THEY ARE HAVING DIFFICULTY CLARIFYING IT IS BECAUSE IT SEEMS LIKE THERE IS AN INCONSISTENCY. ON THE ONE HAND THEY WANT TO ARGUE THAT IT IS INADMISSIBLE AND ON THE OTHER HAND THEY WANT TO TURN AROUND AND ARGUE THAT IT NEEDS TO BE ADMITTED FOR THE PURPOSES OF CLARIFYING THE STATEMENT. AND I THINK THAT THAT SHOULD BE INTERPRETED OF WHAT IT IS. THEY ARE STAKING OUT A POSITION THAT IS DESIGNED TO MAXIMIZE THE LIKELIHOOD OF, AS I SAID, THROWING OUT THE BABY WITH THE BATH WATER, RATHER THAN SPECIFICALLY TELLING YOU WHAT IT IS THEY WANT AND WHAT IT IS THAT THEY DON'T WANT. BUT THE CHUCKLE ITSELF WE HAVE NO OBJECTION TO. NOW, COUNSEL SAYS, WELL, I WANT TO SHOW THAT THE CHUCKLE RELATES TO THE POLYGRAPH TESTS. IN OTHER WORDS, I WANT TO PUT THE CHUCKLE IN CONTEXT. WHY? HOW DOES THAT HELP THEIR POSITION THAT THE DEFENDANT MAY HAVE HAD A FLIPPANT ATTITUDE ABOUT POLYGRAPHS? WHAT ON EARTH DOES THAT BEGIN TO SAY ABOUT THE CONTEXT OF THE STATEMENT THAT WE ARE CONCERNED WITH, ABOUT DREAMING ABOUT THE MURDER OF HIS WIFE? THAT IS THE STATEMENT WE ARE INTERESTED IN PUTTING INTO CONTEXT. WHAT MR. -- WHAT HE SHOULD HAVE ARGUED IS HE SHOULD HAVE ARGUED THAT SOMEHOW THE CHUCKLE REFLECTS UPON THAT STATEMENT, BUT TO THE EXTENT THAT IT DOES, THE CHUCKLE CAN COME IN. AGAIN, THIS IS WHY I THINK THAT THE CASE OF PEOPLE VERSUS PRIDE IS PARTICULARLY SIGNIFICANT BECAUSE, YOU KNOW, WE DON'T EXPECT THE DEFENSE TO ROLL OVER AND SAY, LOOK, WE REALLY DON'T HAVE A GOOD THEORY ON THIS. THEY ARE GOING TO COME UP WITH AN ARGUMENT AS TO WHY IT IS THAT SIMPLY TAKING THAT ONE STATEMENT IS GOING TO BE OUT OF CONTEXT AND WHY IT IS I SUSPECT THAT THEY NEED TO PUT IT BACK IN CONTEXT, JUST AS THE ATTORNEYS DID IN PRIDE.
-- PART OF THE PROBLEM WAS IN OUR DISCUSSIONS YESTERDAY WHAT I HAD BEEN -- WHAT MY UNDERSTANDING OF THE STATEMENT IN PARTICULAR WAS THAT "I HAVE BEEN DREAMING ABOUT KILLING HER." AND THE STATEMENT IS A LITTLE MORE OBLIQUE. IT SAID, "I HAVE HAD A LOT OF DREAMS ABOUT KILLING HER" WHICH IS MAYBE JUST SEMANTICS, BUT IT IS A LITTLE MORE INDIRECT AS A THOUGHT PROCESS. SO THE QUESTION THEN BECOMES WHAT IS THE PROBATIVE VALUE OF, YOU KNOW, PUTTING YOUR HEAD ON THE PILLOW AND HAVING DREAMS ABOUT KILLING YOUR WIFE?
IN A CASE WHERE THE DEFENDANT IS CHARGED WITH KILLING HIS WIFE, IT SEEMS TO BE HIGHLY, HIGHLY PROBATIVE, THAT HE HAS BEEN HAVING A LOT OF DREAMS.
SURE. ON THE SURFACE IT IS. I AGREE WITH YOU THAT THE FIRST IMMEDIATE REACTION IS CLEARLY THAT IS RELEVANT AND CLEARLY THE JURY OUGHT TO HEAR ABOUT IT. I'M JUST SAYING WHEN YOU GET DOWN TO THE SUBSTANCE OF IT, THOUGH, WHAT DOES IT REALLY MEAN?
WHAT DOES IT REALLY MEAN, THAT YOU HAVE HAD DREAMS ABOUT KILLING YOUR WIFE? MR. GOLDMAN: AND THAT IS WHY I STARTED THE DISCUSSION TALKING ABOUT OUR DOMESTIC VIOLENCE EVIDENCE AND SHOWING THAT THAT IS CIRCUMSTANTIAL EVIDENCE OF A -- WHAT YOU COULD CALL A FATAL OBSESSION WITH THIS WOMAN. AND HERE IT IS ALMOST AS IF HE IS SAYING I HAVE A FATAL OBSESSION WITH NICOLE EXCEPT PEOPLE DON'T TALK LIKE THAT, AND THE WAY THAT HE EXPRESSES IT IS HE SAYS I HAVE BEEN HAVING A LOT OF DREAMS ABOUT KILLING HER, AND TO ME THAT SEEMS LIKE IT IS SO OBVIOUSLY POWERFUL COMPELLING EVIDENCE OF THIS FATAL OBSESSION WITH THIS WOMAN THAT IT IS ALMOST DIFFICULT FOR ME TO -- TO THINK OF -- TO ARTICULATE, TO PUT IT INTO WORDS. IT IS ONE OF THOSE THINGS THAT ALMOST SEEMS TO LEAP OUT.
SOMETHING LIKE THAT. ALL RIGHT. MR. GOLDBERG, HOW WOULD YOU PROPOSE TO PRESENT THIS, KNOWING THE MINE FIELDS THAT ARE APPARENT ON EITHER SIDE OF THIS SENTENCE?
THIS IS AN ISSUE THAT COMES OVER AND OVER AND OVER AGAIN AND WE HAVE A LOT OF EXPERIENCE DEALING WITH IT BECAUSE WE REDACT AND CHANGE STATEMENTS IN COURTS ALL THE TIME. AND THE WAY THIS IS HANDLED IS YOU SPEAK TO THE WITNESS --
WELL, I AM NOT GOING TO BE PRESENTING THIS WITNESS, BUT I'M SURE THAT WHOEVER DOES WILL SIT DOWN WITH HIM AND EXPLAIN THE COURT'S RULING.
YES, BUT THE COURT HASN'T RULED ON IT. I DON'T KNOW WHETHER MR. DARDEN HAS ACTUALLY GONE THROUGH AND SAID, WELL, WE ARE GOING TO HAVE A HEARING ON THIS ISSUE. IT WOULD BE RATHER DIFFICULT TO EXPLAIN TO A WITNESS YOU MAY HAVE TO KEEP SOMETHING OUT OF YOUR TESTIMONY BUT WE ARE NOT SURE AT THIS POINT, AND IT DOESN'T REALLY TAKE TOO LONG TO GIVE THAT KIND OF AN EXPLANATION. SO THE PROPOSAL IS AS YOU SPEAK TO THE WITNESS, YOU TELL HIM EXACTLY WHAT YOU ARE GOING TO BE ASKING HIM, WHAT SPECIFIC QUESTION YOU ARE GOING TO BE ASKING ABOUT, CONVERSATION THAT TOOK PLACE ON A CERTAIN DATE AT A CERTAIN LOCATION AND DID MR. SIMPSON SAY SOMETHING ABOUT DREAMS. YES. WELL, WHAT DID HE SAY? AND THEN THE WITNESS WILL GIVE THAT ONE SINGLE SENTENCE, SO I DON'T SEE THAT MECHANICALLY THAT THERE IS A LOT OF DIFFICULTY IN TERMS OF PRESENTING THAT EVIDENCE, YOUR HONOR.
NO, I CAN'T SAY THAT -- YOU KNOW, QUITE FRANKLY, WE DIDN'T EVEN RESEARCH THAT, YOUR HONOR, BECAUSE IT SEEMED LIKE OUR THOUGHT PROCESS WAS MUCH THE SAME AS THE COURT'S AND THAT WE WERE MORE CONCERNED ABOUT THE ISSUE OF THE POLYGRAPH AND REDACTING THAT OUT. I MEAN, THE ISSUE OF RELEVANCE ALWAYS TURNS ABOUT A JUROR -- A JURY USING THEIR COLLECTIVE LIFE EXPERIENCE AND THEIR COMMON SENSE FOR THE PURPOSES OF INTERPRETING EVIDENCE. COUNSEL MADE THE EXACT SAME ARGUMENT ABOUT THE DOMESTIC VIOLENCE EVIDENCE, YOUR HONOR. WELL, JUST BECAUSE YOU HIT SOMEONE, IT DOESN'T NECESSARILY MEAN THAT YOU ARE LATER GOING TO KILL THEM. JUST BECAUSE YOU DO THESE VARIOUS THINGS DOESN'T NECESSARILY LEAD UP TO MURDER. BUT WHAT WE ARE ALWAYS ASKING THE JURY TO DO, WITH ANY KIND OF CIRCUMSTANTIAL EVIDENCE, IS USE COMMON SENSE, LIFE EXPERIENCE, AND THAT IS ALL WE ARE GOING TO BE ASKING THEM TO DO HERE.
ALL RIGHT. I'M GOING TO GIVE MR. DOUGLAS ANOTHER COMMENT SIMPLY BECAUSE OF THE UNUSUAL NATURE OF THIS.
YOUR HONOR, THANK YOU VERY MUCH FOR THIS OPPORTUNITY. THERE IS CLEARLY A MINE FIELD THAT WE WILL BE DELICATELY WALKING AROUND AND BETWEEN IF WE GET INTO THIS PARTICULAR AREA, AND AS WELL, YOUR HONOR, WE ARE GOING TO BE OPENING THE DOOR, BECAUSE -- BECAUSE IN THIS INSTANCE IT IS IMPORTANT TO REMEMBER THAT ON JUNE 15, 1994, ROBERT SHAPIRO SENT A LETTER TO TOM VANNATTER ASKING AND OFFERING AND SENT THE REQUEST FOR A POLYGRAPH SO LONG AS THE RESULTS WERE STIPULATED AND ADMISSIBLE BY STIPULATION. AND THEREFORE, YOUR HONOR, I CANNOT SIMPLY REST ON SEVEN CERTAIN WORDS, "I'VE HAD A LOT OF DREAMS ABOUT KILLING NICOLE," AND THEN MOVE ON TO MY NEXT TOPIC, BECAUSE BEFORE THOSE WORDS WERE UTTERED THERE WAS A CHUCKLE AND SHIPP WILL SAY THERE WAS A CHUCKLE AND THAT CHUCKLE DOES HAVE SIGNIFICANCE, BECAUSE IT MIGHT EVEN ARGUABLY PLACE INTO SOME QUESTION THE SERIOUSNESS OF THE STATEMENTS THAT FOLLOW. IS HE CHUCKLING BECAUSE THE WHOLE IDEA OF A POLYGRAPH WAS FUNNY BECAUSE HE IS INNOCENT AND OF COURSE HE PASSED? IS HE CHUCKLING BECAUSE IT IS A SILLY IDEA BECAUSE HE IS INNOCENT AND HE THROWS IN JUST BY HAPPENSTANCE THE SENTENCE, "WELL, YOU KNOW, I'VE HAD DREAMS ABOUT KILLING HER"? IS HE CHUCKLING BECAUSE THE WHOLE IDEA OF HAVING DREAMS IS FUNNY TO HIM AS WELL? WHO KNOWS. BUT TO ALLOW SIMPLY TO HAVE THE WORDS COME UP, WITHOUT ALLOWING THE CONTEXT THAT TRAIPSES AROUND A VERY DELICATE MINE FIELD OF ERROR -- AND CLEAR ERROR, BECAUSE WE ARE TALKING ABOUT A CODE SECTION THAT IS MANDATORY AND THAT IS CLEAR, BECAUSE POLYGRAPH TESTIMONY IS NOT ADMISSIBLE, BECAUSE POLYGRAPHS IN AND OF THEMSELVES HAVE NOT DEVELOPED THE CERTAIN RELIABILITY SUCH THAT THEY CAN BE ADMISSIBLE. IT IS NOT EVEN SUSCEPTIBLE TO A KELLY-FRYE HEARING, YOUR HONOR. THE LEGISLATURE HAS SPOKEN AS A MATTER OF LAW AND IT IS BINDING, AND BECAUSE TO DO SO WOULD OPEN UP THE DOORS ABOUT THIS LETTER WHERE MR. SIMPSON'S LAWYER TWO DAYS LATER OFFERED TO TAKE A POLYGRAPH SO LONG AS IT WAS ADMISSIBLE, AND IN FAIRNESS WE WOULD WANT TO BRING THAT OUT TO PUT IT INTO THE CONTEXT THAT HE REALLY DIDN'T HAVE ANY DREAMS ABOUT KILLING HER AND HE REALLY WASN'T RELUCTANT TO TAKE AN EXAMINATION. I THINK THE BEST AND THE PROPER COURSE WOULD BE TO LET IT ALL OUT, TO KEEP IT ALL OUT.
WELL, NO. IT IS JUST AN UNUSUAL ISSUE AND I JUST WANTED TO HEAR ONE MORE COMMENT FROM THE DEFENSE. I JUST WANTED TO SOLIDIFY SOMETHING IN MY MIND. ALL RIGHT. THE OBJECTION TO THE COMMENTS WILL BE SUSTAINED AS TO ANY COMMENTARY REGARDING POLYGRAPH UNDER EVIDENCE CODE -- EXCUSE ME 351.5, IF I AM NOT MISTAKEN.
.1. THE STATEMENT REGARDING THE DREAMS ABOUT KILLING WILL BE ADMITTED. MR. DARDEN, ARE YOU GOING TO BE PRESENTING THIS?
I'M GOING TO NEED TEN MINUTES, YOUR HONOR. HE IS IN THE BUILDING. HE IS UPSTAIRS. I JUST WANT TO MAKE SURE HE UNDERSTANDS A COUPLE OF THINGS.
ALL RIGHT. ANY OTHER MINE FIELDS THAT I NEED TO DEAL WITH BEFORE WE INVITE THE JURORS IN? ALL RIGHT. AS A MATTER OF SCHEDULING, I INDICATED TO COUNSEL YESTERDAY THAT WE WOULD RECESS TODAY AT TWO O'CLOCK BECAUSE SOME OF THE COURT STAFF AND SOME OF COUNSEL HAVE ASKED PERMISSION TO ATTEND A FUNERAL THIS AFTERNOON. I HAVE INDICATED THAT I WOULD ALLOW THEM TO DO SO, SO WE WILL RECESS AT TWO O'CLOCK.
WE ALSO HAVE A FOUR O'CLOCK HEARING AS TO MARGUERITE SIMPSON THIS AFTERNOON, WHICH I HAVE ASKED MRS. ROBERTSON TO CONTACT MR. JONES TO SEE IF HE HAD ANOTHER DATE. ALL RIGHT. WE WILL TRY TO RESCHEDULE THAT WITH MR. JONES. ALL RIGHT, MR. DOUGLAS.
POINT OF CLARIFICATION, YOUR HONOR. SINCE THERE IS, AS A PREDICATE MATTER, AS A THRESHOLD MATTER, A CHALLENGE THAT THE STATEMENT WAS EVEN MADE, THAT THE PRELIMINARY FACT OF THE STATEMENT, SEPARATE FROM WHATEVER INFERENCES MIGHT BE OFFERED TO FLOW, I WOULD ASK UNDER 403 THAT THERE BE A HEARING AS TO THAT STATEMENT AT AN APPROPRIATE TIME.
I DON'T WANT TO TAKE FROM THE JURY RIGHT NOW, BUT I WOULD ASK, YOUR HONOR, THAT AS A PRELIMINARY MATTER THAT THAT BE ALLOWED. AND SECONDARILY, I WOULD ASK, FOR MY OWN PURPOSES AND MY OFFICE'S PURPOSES, THAT I BE ALLOWED TO KNOW THAT I CAN SEEK TO OBTAIN EXPERT WITNESS TESTIMONY ABOUT DREAMS, BECAUSE I AM GOING TO INTEND TO CHALLENGE ANY SORT OF PROBATIVE WEIGHT THAT THE PEOPLE ARE GOING TO ATTACH TO THIS ALLEGED STATEMENT WHICH I CONTEND NEVER OCCURRED.
YOUR HONOR, MR. DOUGLAS HAS A COPY OF OUR TAPED INTERVIEW WITH MR. SHIPP. IF THE COURT WOULD LIKE A COPY OF THAT TAPED INTERVIEW, I AM HAPPY TO PROVIDE A COPY. I THINK IT IS INAPPROPRIATE TO INTERRUPT MR. SHIPP'S TESTIMONY AT THIS POINT. MR. DOUGLAS KNOWS WHAT THE WITNESS HAS TO SAY. HE KNOWS WHAT HE HAS SAID IN THE PAST. THE WITNESS IS ADAMANT THAT THE STATEMENT WAS MADE. IT IS A QUESTION FOR THE JURY, AN ISSUE FOR THE JURY TO RESOLVE. THERE IS NO 403 ISSUE HERE AT ALL, YOUR HONOR.
BECAUSE, YOUR HONOR, THIS EVIDENCE IS POTENTIALLY PREJUDICIAL AND RISKY, I ALSO BELIEVE -- AND BECAUSE THE COURT HAS ONE REPRESENTATION AT SIDE BAR ABOUT WHAT IS GOING TO BE SAID, AND ANOTHER REPRESENTATION HERE IN OPEN COURT, THERE IS ANOTHER REPRESENTATION IN A BOOK WHERE THIS WITNESS' CONVERSATION HAS BEEN REFLECTED, THERE ARE ASPECTS OF THIS WITNESS' BACKGROUND THAT I THINK WILL BE PROBATIVE FOR THE COURT TO EVALUATE PRELIMINARILY, I THINK THE MORE PRUDENT COURSE WOULD BE FOR THIS COURT TO FIRST HEAR THE ENTIRE STATEMENT SO THIS COURT CAN UNDERSTAND WHY I THINK IT IMPORTANT THAT I GO INTO THE CIRCUMSTANCES AND THE TENOR UNDER WHICH IT IS SPOKEN BEFORE THE COURT ALLOWS THE JURY TO HEAR THIS CERTAIN STATEMENT. I'M NOT GOING TO ASK FOR A 403 WITH EVERY PARTICULAR WITNESS. I DO INTEND TO ASK FOR 403'S WITH THE DOMESTIC VIOLENCE WITNESSES WHOM WE DISPUTE THAT THE ACT OCCURRED, THAT MR. SIMPSON WAS INVOLVED IN THE ACT, OR THAT THERE IS THE 1101(B) INFERENCE THAT IS PROPERLY DRAWN, GIVEN THE FACTUAL CONTEXT. ON THOSE -- ON THOSE INSTANCES HE WILL BE ASKING FOR 403'S. ON THIS INSTANCE, BECAUSE THE COURT NEEDS TO PREVIEW THE EVIDENCE, THE COURT NEEDS TO UNDERSTAND WHY I SAY I CANNOT DO JUSTICE TO MY CLIENT ON TRIAL FOR MURDER WITH THE FIFTH WITNESS IN THIS CASE WITHOUT MY BEING ABLE TO VIGOROUSLY CROSS-EXAMINE HIM ON THAT PARTICULAR POINT.
MR. DARDEN, DO YOU AGREE THE COURT HAS DISCRETION TO CONDUCT THESE 402/403 ISSUES FOR THE JURY AND CAN STRIKE TESTIMONY IF THE FOUNDATION IS NOT THERE?
YES, YOUR HONOR, BUT THIS PLOY, THIS PLOY PURSUED BY COUNSEL WE HAVE SEEN BEFORE, YOUR HONOR. WE SAW IT IN THE CHINATOWN MURDERS. WHAT COUNSEL IS REALLY ASKING FOR IS A DRESS REHEARSAL OF A WITNESS' WHOSE TESTIMONY IS EXTREMELY DAMAGING TO HIS CLIENT. THE COURT HAS A COPY OF A TRANSCRIPT OF THE TAPE -- OF THE TAPE INTERVIEW. THE WITNESS IS HERE. HE IS READY AND WILLING TO TESTIFY AND IN A MANNER I BELIEVE WILL BE CONSISTENT WITH THAT TRANSCRIPT. THERE IS NO 402 OR 403 ISSUE HERE. THE COURT WILL JUST BE WASTING ITS TIME AND GIVING MR. DOUGLAS AN EXTRA SHOT AT CROSS-EXAMINING OUR WITNESS. THAT IS UNNECESSARY UNDER THESE CIRCUMSTANCES. IT ISN'T FAIR. MR. DOUGLAS HAS KNOWN ABOUT THIS WITNESS AND HIS TESTIMONY FOR TEN DAYS AND IF HE -- YOU KNOW, LET'S GET THIS ON AND LET'S FINISH THIS TRIAL AND STOP DILLY-DALLYING AROUND.
APPARENTLY IT IS IN A BOOK NOW AS WELL. ALL RIGHT. THE COURT WILL UNDERTAKE THE 403 EXAMINATION DURING THE COURSE OF THE ACTUAL TESTIMONY. ALL RIGHT. WE WILL STAND IN RECESS FOR FIFTEEN.
MAY I INTERJECT? IF WE ARE GOING TO HAVE A 403, I WOULD LIKE NOT TO HAVE MY WITNESS' TESTIMONY INTERRUPTED MOMENTS BEFORE HE PROVIDES THIS IMPORTANT INFORMATION OR THE TESTIMONY. IF THERE IS A CONCERN, IF THE COURT HAS A CONCERN AND THE COURT WANTS TO DO A 403 HEARING, LET'S DO IT RIGHT NOW. DON'T INTERRUPT HIS TESTIMONY.
MR. DARDEN, WHAT DO YOU WANT? DO YOU WANT THE 403 HEARING NOW OR DO YOU WANT IT DURING THE COURSE OF THE TESTIMONY?
Hey, to be truthful, Ron, man, I've had a lot of dreams about killing her.
Isn't that precisely what the statement to Mr. Shipp is saying? 'I have been dreaming about killing my wife.' Isn't that powerful, powerful evidence of that fatal obsession, except that instead of coming in the form of circumstantial evidence, it is coming in the form of direct evidence?
I cannot challenge a statement that I say never occurred, a statement where there is, even from the mouths of the witness, information that might suggest that the statement was not offered in total seriousness, in true appreciation for the value of that statement.
Not the psychic hotline issue, but the 403 issue, Your Honor?
What counsel is really asking for is a dress rehearsal of a witness whose testimony is extremely damaging to his client.