Sidebar: photograph evidence foundation

📄 Sidebar: photograph evidence foundation — Wednesday, February 1, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\1\SIDEBAR-PHOTOGRAPH-EVIDENCE-FO.DOC

TRIAL

▲ Day 10 of 167

◀ Direct examination of Ron Shipp (morning, part 3) Direct examination of Ron Shipp (morning, part 4) ▶

Date: Wednesday, February 1, 1995 • Utterances: 37

Judge Ito halted questioning about photographs of Nicole Brown Simpson's injuries because the prosecution failed to establish a proper time foundation for when the photos were taken. The witness could not identify the photographs shown to him, and Cochran noted the Polaroid serial numbers indicated they were taken at different times. Ito sustained the foundational objection but declined to strike testimony about the existence of other photographs, only the descriptions of their contents.

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

# 2 THE COURT:

MR. DARDEN, HOW DO WE KNOW WHEN THOSE PICTURES WERE TAKEN?

KEY QUOTE

# 3 MR. DARDEN:

WHICH ONES?

# 4 THE COURT:

THE ONES WE ARE TALKING ABOUT NOW, THE ONES THAT HE IS DESCRIBING, I DON'T HAVE A FOUNDATION FOR -- WITHOUT HEARSAY, UNLESS HE CAN SAY, YOU KNOW, HE SAW THE INJURY ON THE ARM AND SHE SHOWED HIM THE SAME INJURY, SO YOU KNOW, SO AT LEAST YOU HAVE SOME IDEA WHEN THESE PHOTOGRAPHS WERE TAKEN, BUT YOU DON'T HAVE THE TIME FOUNDATION RIGHT NOW.

# 5 MR. COCHRAN:

THAT'S RIGHT, BECAUSE BASICALLY HE CAN'T IDENTIFY THE PHOTOGRAPHS HE IS SHOWING HIM ALREADY, AND IF YOU LOOK AT THE BACK OF THOSE PHOTOGRAPHS, I KNOW SOMETHING ABOUT POLAROID PICTURES BECAUSE YOU HAVE TO LOOK AT THE NUMBER -- I REMEMBER IT FROM GERONIMO PRATT TWENTY SOME YEARS AGO -- THAT THE NUMBERS ARE SEQUENTIAL AND THEY ALL MEAN SOMETHING AND THOSE PHOTOGRAPHS ARE TAKEN ALL AT DIFFERENT TIMES, THEY ARE NOT FROM THE SAME BATCH, AND THAT IS THE PROBLEM. YOU HAVE A REAL PROBLEM WITH THOSE.

# 6 MR. DARDEN:

ACTUALLY, COUNSEL HAS IN HIS POSSESSION ANALYSIS OF THOSE PHOTOGRAPHS, SO I'M NOT GOING TO CORRECT HIM AT THIS TIME, BUT IN ANY EVENT, I WILL AGREE WITH YOU.

KEY QUOTE

# 7 THE COURT:

THANK YOU.

# 8 MR. DARDEN:

I WILL MOVE ON.

# 9 MR. COCHRAN:

MOVE TO STRIKE ALL THIS -- STRIKE THIS.

# 10 MR. DOUGLAS:

STRIKE THIS AND ADMONISH THE JURY.

# 11 MR. COCHRAN:

I'M TALKING. CAN WE MOVE TO STRIKE THAT ASPECT, YOUR HONOR, BECAUSE IF THEY DON'T HAVE TO WORRY ABOUT MISLEADING, BUT QUESTION THESE QUESTIONS. THOSE PHOTOGRAPHS HAVE NOTHING TO DO WITH ANYTHING AT THIS POINT. BUT IF HE WANTS TO LINK THEM UP LATER, THAT IS FINE, BUT RIGHT NOW THEY SHOULD BE STRICKEN. WHAT IS FAIR IS FAIR.

# 12 MR. DARDEN:

WHAT WE ARE TRYING TO ESTABLISH IS THAT THERE WERE ACTUALLY OTHER PHOTOGRAPHS OF -- EXCUSE ME.

# 13 THE COURT:

ALL RIGHT.

# 14 MR. DARDEN:

THAT THERE ARE OTHER PHOTOGRAPHS.

# 15 THE COURT:

I DISREGARD THOSE KIND OF REACTIONS.

# 16 MR. DARDEN:

OKAY.

# 17 MR. COCHRAN:

I JUST LOOKED AT THE WALL.

# 18 MR. DARDEN:

THE PERSON THAT TOOK THOSE PHOTOGRAPHS WILL BE HERE TO TESTIFY. BUT WHAT I'M TRYING TO ESTABLISH IS WHETHER OR NOT THESE ARE THE ONES THAT HE SAW AND NOW HE SAYS THEY AREN'T THE ONES HE SAW SO APPARENTLY THERE ARE OTHERS, BUT TO STRIKE HIS TESTIMONY.

# 19 THE COURT:

WHAT I'M GOING TO DO IS DISREGARD THE TESTIMONY -- THE TESTIMONY AS TO WHAT WAS IN THEM.

# 20 MR. DARDEN:

WHAT ARE YOU GOING TO DO?

# 21 THE COURT:

STRIKE HIS TESTIMONY SO FAR AS HIS DESCRIPTION OF WHAT THEY WERE. THE FACT THAT HE SAW OTHER PHOTOGRAPHS WILL STAND.

# 22 MR. COCHRAN:

THAT IS FINE. I THINK THAT IS FAIR.

# 23 THE COURT:

OKAY.

# 24 MR. DARDEN:

EXCUSE ME, JUDGE.

# 25 THE COURT:

WHAT?

# 26 MR. DARDEN:

THAT HE SAW OTHER PHOTOGRAPHS OF HER BODY PARTS, YOU ARE GOING TO STRIKE THAT?

# 27 MS. CLARK:

NO.

# 28 MR. DARDEN:

THAT HE SAW PHOTOGRAPHS OF HER BODY?

# 29 THE COURT:

THAT HE SAW -- THE FACT THAT HE SAW OTHER PHOTOGRAPHS -- WELL, YOU KNOW SOMETHING, LET ME TELL YOU, LET'S CLARIFY THIS. YOU KNOW, NOW THAT I HAVE THOUGHT ABOUT IT SOME MORE, HE SAYS HE SAW LEFT THIGH, LEFT ARM. HE HASN'T DESCRIBED ANY INJURY YET, SO THE FACT THAT THERE ARE PHOTOS OF LEFT ARM, LEFT THIGH --

# 30 MR. COCHRAN:

JUDGE, HE HAS ALSO SAID THOSE AREN'T THE PHOTOGRAPHS.

# 31 MR. DARDEN:

HE SAW OTHER PHOTOGRAPHS.

# 32 THE COURT:

HE HAS DESCRIBED THE PHOTOS THAT HE SAW.

# 33 MR. COCHRAN:

I WANT THE PART STRICKEN WITH REGARD TO THESE PARTICULAR PHOTOGRAPHS. HE MAY HAVE SEEN SOME PHOTOGRAPHS, BUT THEY ARE NOT HERE AT THIS POINT BECAUSE HE CAN'T IDENTIFY THEM.

# 34 THE COURT:

ALL RIGHT. I'M GOING TO SUSTAIN THE FOUNDATIONAL OBJECTION, BUT I'M NOT GOING TO STRIKE THAT FROM THE RECORD BECAUSE ALL HE HAS DONE IS DESCRIBE WHAT HE WAS SHOWN. THAT IS ALL HE HAS DONE.

KEY QUOTE

# 35 MR. DARDEN:

PLEASE KEEP IN MIND WE ARE TRYING TO ESTABLISH --

# 36 THE COURT:

SOMEBODY ELSE TOOK PHOTOS?

# 37 MR. DARDEN:

-- THERE IS ANOTHER SET OF PHOTOS.

Temperature

tense

Key Quotes (4)

Lance A. Ito

MR. DARDEN, HOW DO WE KNOW WHEN THOSE PICTURES WERE TAKEN?

The judge proactively identified the missing foundation before a formal objection, signaling the prosecution's evidentiary gap.

Johnnie Cochran

I KNOW SOMETHING ABOUT POLAROID PICTURES BECAUSE YOU HAVE TO LOOK AT THE NUMBER -- I REMEMBER IT FROM GERONIMO PRATT TWENTY SOME YEARS AGO -- THAT THE NUMBERS ARE SEQUENTIAL AND THEY ALL MEAN SOMETHING AND THOSE PHOTOGRAPHS ARE TAKEN ALL AT DIFFERENT TIMES, THEY ARE NOT FROM THE SAME BATCH.

Cochran invokes his prior case experience to argue the photos are inadmissible as a group, undermining their use as a coherent set of evidence.

Christopher Darden

ACTUALLY, COUNSEL HAS IN HIS POSSESSION ANALYSIS OF THOSE PHOTOGRAPHS, SO I'M NOT GOING TO CORRECT HIM AT THIS TIME, BUT IN ANY EVENT, I WILL AGREE WITH YOU.

Darden concedes the foundational problem rather than fight it, while pointedly noting the defense already has the photo analysis.

Lance A. Ito

I'M GOING TO SUSTAIN THE FOUNDATIONAL OBJECTION, BUT I'M NOT GOING TO STRIKE THAT FROM THE RECORD BECAUSE ALL HE HAS DONE IS DESCRIBE WHAT HE WAS SHOWN.

Ito threads a narrow ruling — sustaining the objection on foundation but preserving the fact that the witness saw photographs, keeping the door open for the prosecution.

Evidence (1)

Informal

Polaroid photographs allegedly depicting injuries to Nicole Brown Simpson's arm and thigh

challenged on foundation; description stricken, existence preserved in record

Notable Exchanges (2)

Johnnie Cochran•Christopher Darden

Cochran argues from personal experience with Polaroid serial numbers in the Geronimo Pratt case that the photos come from different batches and different times; Darden concedes the point while obliquely noting the defense already has the photo analysis.

strategic

Lance A. Ito•Christopher Darden

Darden pushes back on the scope of Ito's ruling, asking repeatedly whether testimony about photographs of Nicole's 'body parts' will be stricken; Ito clarifies only the descriptions of contents are affected.

clarifying

Light Moments (1)

Johnnie Cochran

Cochran, apparently reacting to something in court, tells the judge 'I JUST LOOKED AT THE WALL' to deflect a comment about reactions.

Objections

2 objections (1 sustained, 0 overruled)

Proceeding 4523 • 37 utterances

Criminal Trial

Department 103