Sidebar: evidentiary issues and voir dire

📄 Sidebar: evidentiary issues and voir dire — Wednesday, February 1, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\1\SIDEBAR-EVIDENTIARY-ISSUES-AND.DOC

TRIAL

▲ Day 10 of 167

◀ Direct examination of Ron Shipp (afternoon, part 1) Voir dire of Ron Shipp ▶

Date: Wednesday, February 1, 1995 • Utterances: 32

Defense counsel requested clarification on the procedure for a hearing that Cochran believed would occur outside the jury's presence, but which was now happening in front of the jury. The sidebar devolved into a dispute over whether defense could conduct voir dire of the prosecution's witness on foundational matters, with Darden and Clark pushing back and Ito repeatedly affirming the defense's right to do so. The exchange was punctuated by Darden calling the judge 'my bud,' which Cochran immediately moved to strike.

# 1 MR. DOUGLAS:

YOUR HONOR, MAY WE APPROACH?

# 2 THE COURT:

YES, WITH THE REPORTER.

# 3 MR. DOUGLAS:

WITH THE REPORTER.

# 4 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 5 THE COURT:

WE ARE OVER AT SIDEBAR.

# 6 MR. COCHRAN:

I WANTED TO APPROACH THE BENCH SO I COULD UNDERSTAND THE GROUND RULES. WE WERE TOLD -- AND I GUESS I MUST HAVE MISUNDERSTOOD YOU THIS MORNING. I THOUGHT WE WERE GOING TO HAVE A HEARING DURING THE TRIAL OUTSIDE THE PRESENCE OF THE JURY. NOW WE'RE HAVING A HEARING IN THE PRESENCE OF THE JURY. I'M NOT TOTALLY CLEAR HOW WE'RE DOING THIS. WE WOULD LIKE TO TAKE HIM ON VOIR DIRE. WHAT WE ARE DOING IS, ARE WE GOING TO LET HIM GO THROUGH IT?

# 7 THE COURT:

DO YOU WANT TO TAKE HIM ON VOIR DIRE AT THIS POINT?

# 8 MR. COCHRAN:

I'M NOT CLEAR ABOUT ACTUALLY WHERE WE ARE AT THIS POINT. I WILL NOT EXAMINE. MR. DOUGLAS WILL WANT TO ASK SOME QUESTIONS ON VOIR DIRE, A FEW QUESTIONS AT THIS POINT BEFORE WE GET INTO THE OTHER SUBJECT MATTER. THE OTHER THING I WANTED TO STATE FOR THE RECORD, HAS HE BEEN ADMONISHED? BECAUSE I UNDERSTOOD CHRIS TO SAY HE WANTED YOU TO ADMONISH HIM. YOU'RE NOT GOING TO DO THAT AT THIS POINT?

# 9 THE COURT:

NO. I ASSUME HE'S BEEN PREPARED BY MR. DARDEN.

# 10 MR. COCHRAN:

CAN WE GET A REPRESENTATION THAT HE'S BEEN PREPARED ABOUT THIS WHOLE POLYGRAPH THING OR WHATEVER?

KEY QUOTE

# 11 MR. DARDEN:

YOU KNOW, I TRIED TO GET YOU GUYS TO ADMONISH THE GUY TO MAKE SURE IT WAS CLEARLY DONE. YOU KNOW --

# 12 MR. COCHRAN:

WE DIDN'T WANT TO DO IT. I'M JUST ASKING YOU.

# 13 MR. DARDEN:

YEAH, I TOLD HIM, BUT I THINK YOU PROBABLY SHOULD HAVE DONE IT ON THE RECORD.

# 14 THE COURT:

MR. DARDEN, THIS IS YOUR WITNESS. IT'S YOUR PRESENTATION --

# 15 MR. DARDEN:

I'M NOT CRITICIZING YOU, JUDGE. YOU'RE MY BUD.

KEY QUOTE

# 16 MR. COCHRAN:

WAIT A MINUTE. I RESENT THAT.

# 17 MR. DARDEN:

I'M TRYING TO COVER MYSELF.

# 18 MR. COCHRAN:

IT'S NOT A QUESTION OF HIM BEING YOUR BUD. I MOVE TO STRIKE THAT.

KEY QUOTE

# 19 MR. DARDEN:

THE OTHER ISSUE IS, THIS IS NOT THE TIME FOR THEM TO TAKE MY WITNESS ON VOIR DIRE. THAT'S WHAT CROSS-EXAMINATION IS FOR.

# 20 THE COURT:

NO. YOU CAN TAKE HIM ON VOIR DIRE AS TO FOUNDATIONAL MATTERS.

# 21 MS. CLARK:

WHAT FOUNDATIONAL MATTERS?

# 22 MR. DARDEN:

YEAH. WHAT COULD YOU --

# 23 MR. COCHRAN:

WHY DO THEY CONTINUALLY BREAK THE RULE? WHY DO WE HAVE TO HEAR ALL THIS STUFF? YOU RULE, YOU RULE.

# 24 MS. CLARK:

THAT'S RIGHT. YOU ARE UP HERE ARGUING FOR THE THIRD TIME OVER THE RULING HE'S ALREADY MADE CLEAR.

# 25 MR. COCHRAN:

THAT'S NOT --

# 26 THE COURT:

NO. I INDICATED THAT WE WOULD DO THE HEARING DURING THE COURSE OF THE PRESENTATION OF THIS WITNESS DURING HIS TESTIMONY. NOW THEY WANT TO TAKE HIM ON VOIR DIRE AS TO SOME FOUNDATIONAL MATTERS. THAT GOES TO HIS ABILITY AND COMPETENCY TO TESTIFY. THAT'S WHAT THE VOIR DIRE PROCESS IS FOR.

# 27 MS. CLARK:

RIGHT. BUT LET'S HAVE AN OFFER. WHAT FOUNDATIONAL OFFER COULD YOU POSSIBLY HAVE? COULD THE WITNESS HEAR? COULD THE WITNESS SEE? COULD THE WITNESS SPEAK? I THINK WE'VE ESTABLISHED HE DID ALL THE ABOVE.

# 28 THE COURT:

THEY'RE ENTITLED TO TAKE THE WITNESS ON VOIR DIRE.

# 29 MR. COCHRAN:

MAY WE RETURN?

# 30 MR. DARDEN:

CAN WE SET THE GROUND RULES?

# 31 THE COURT:

THE GROUND RULES ARE, THEY GET TO ASK FOUNDATIONAL QUESTIONS.

# 32 MS. CLARK:

BUT THERE HAS TO BE A FOUNDATIONAL ISSUE.

Temperature

tense

Key Quotes (4)

Christopher Darden

I'M NOT CRITICIZING YOU, JUDGE. YOU'RE MY BUD.

Remarkably casual comment to the judge mid-sidebar, immediately drawing Cochran's ire and a mock motion to strike

Johnnie Cochran

IT'S NOT A QUESTION OF HIM BEING YOUR BUD. I MOVE TO STRIKE THAT.

Half-serious objection to Darden's familiarity with the judge, revealing underlying tension about perceived favoritism

Marcia Clark

COULD THE WITNESS HEAR? COULD THE WITNESS SEE? COULD THE WITNESS SPEAK? I THINK WE'VE ESTABLISHED HE DID ALL THE ABOVE.

Sharp, sarcastic challenge to the defense's voir dire request — arguing there were no genuine foundational issues in dispute

Johnnie Cochran

CAN WE GET A REPRESENTATION THAT HE'S BEEN PREPARED ABOUT THIS WHOLE POLYGRAPH THING OR WHATEVER?

Reveals the underlying evidentiary concern — the witness had not been formally admonished on the record about polygraph-related testimony

Notable Exchanges (3)

Christopher Darden•Johnnie Cochran•Lance A. Ito

Darden told the judge 'you're my bud' mid-sidebar while trying to deflect criticism; Cochran immediately objected and moved to strike the remark, citing the impropriety of the familiarity

heated

Marcia Clark•Lance A. Ito

Clark repeatedly challenged the defense's right to voir dire, demanding a specific foundational offer, while Ito just as repeatedly affirmed the defense was entitled to ask foundational questions

strategic

Johnnie Cochran•Christopher Darden

Cochran sought a representation from Darden that the witness had been prepared regarding the polygraph issue; Darden acknowledged he told the witness but agreed it probably should have been on the record

procedural

Light Moments (1)

Christopher Darden

Darden called Judge Ito 'my bud' during a sidebar, prompting Cochran to deadpan 'I MOVE TO STRIKE THAT' and Darden to admit 'I'M TRYING TO COVER MYSELF'

Objections

None recorded

Proceeding 4538 • 32 utterances

Criminal Trial

Department 103