Motion: video evidence admissibility

📄 Motion: video evidence admissibility — Thursday, February 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\16\MOTION-VIDEO-EVIDENCE-ADMISSIB.DOC

TRIAL

▲ Day 20 of 167

◀ Cross-examination of Ron Phillips (part 2) Cross-examination of Ron Phillips (part 3) ▶

Date: Thursday, February 16, 1995 • Utterances: 104

The defense conducted a 402 hearing to determine whether they could show Detective Phillips an NBC news videotape — shot at Nicole Brown Simpson's Bundy condo — that captured a kitchen telephone speed dialer with names including 'Daddy,' 'Diita,' 'Opa,' 'Cora,' 'Robin,' and 'Pam.' The prosecution objected that Phillips never saw the speed dialer and lacked foundation to testify about it, arguing Detective Lange (who did see it) should be the witness. Judge Ito allowed the limited use, framing the relevance as showing that Simpson's children had a 'Daddy' listing on Nicole's phone, then ended with an unreported sidebar after cryptically noting 'it is interesting whose name is not on there.'

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

# 2 THE COURT:

ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT WITH HIS COUNSEL. THE PEOPLE ARE REPRESENTED. THE JURY IS NOT PRESENT. DETECTIVE PHILLIPS IS PRESENT IN THE COURTROOM ON THE WITNESS STAND. MR. DOUGLAS, YOU HAD SOMETHING YOU WANTED TO ADDRESS TO THE COURT BEFORE WE INVITE THE JURORS TO REJOIN US?

# 3 MR. DOUGLAS:

DURING OUR CROSS-EXAMINATION OF MR. PHILLIPS WE WOULD INTEND --

# 4 MR. COCHRAN:

WE MAY WANT TO HAVE HIM STEP OUT.

# 5 THE COURT:

ALL RIGHT. DETECTIVE PHILLIPS, WHY DON'T YOU STEP OUTSIDE THE COURTROOM AND WAIT FOR US, PLEASE.

# 6 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 7 MR. COCHRAN:

THAT IS OKAY. THANK YOU. EXCUSE ME, YOUR HONOR. ONE PERSON AT A TIME. I VIOLATED THE RULE.

# 8 THE COURT:

AGAIN.

# 9 MR. DOUGLAS:

DURING THE CROSS-EXAMINATION OF MR. PHILLIPS, YOUR HONOR, WE ARE -- WE WOULD LIKE TO SHOW PORTIONS OF A VIDEOTAPE THAT WE RECEIVED YESTERDAY. NBC APPARENTLY RENTED THE ROCKINGHAM -- THE BUNDY CONDOMINIUM ON TUESDAY AND TOOK A TOUR AND AMONG THE ITEMS THAT THEY SHOWED ON THE TOUR WAS THE TELEPHONE WITH THE SPEEDY DIALER AND CERTAIN NOTATIONS SUCH AS "DADDY" AND "DIITA" AND "CORA" AND "ROBIN" AND "PAM" AND WE WOULD LIKE TO SHOW THAT TO MR. PHILLIPS, BUT WE WOULD LIKE TO SHOW THE TAPE RIGHT NOW.

# 10 THE COURT:

ALL RIGHT. I WOULD LIKE TO SEE IT BEFORE WE HAVE -- HAS THE PROSECUTION SEEN IT?

# 11 MS. CLARK:

NO.

# 12 MR. DOUGLAS:

WE JUST GOT IT YESTERDAY.

# 13 MR. COCHRAN:

JUST SHOWN YESTERDAY.

# 14 MR. DOUGLAS:

JUST ON T.V. YESTERDAY.

# 15 MR. BAILEY:

IT WAS ON THE TODAY SHOW.

# 16 MR. DOUGLAS:

CORRECT. WITHOUT THE SOUND.

# 17 THE COURT:

ALL RIGHT. MR. HARRIS, DO WE HAVE THIS AVAILABLE, PLEASE?

# 18 MR. HARRIS:

YES, YOUR HONOR. IT IS COMING UP NOW.

# 19 (BRIEF PAUSE.)

# 20 MR. DOUGLAS:

YOUR HONOR, WE WOULD INTEND SHOWING ONLY THE PORTION DEALING WITH THE TELEPHONE, BUT WE ARE JUST GIVING CONTEXT RIGHT NOW.

# 21 THE COURT:

ALL RIGHT.

# 22 (AT 1:33 P.M., A VIDEOTAPE, WAS PLAYED.)

# 23 THE COURT:

DO WE HAVE FREEZE FRAME CAPABILITY ON THIS VCR?

# 24 MR. DOUGLAS:

YES, YOUR HONOR.

# 25 THE COURT:

THERE IS OUR REALTOR AND SHE WAS VERY GRACIOUS DURING OUR TOUR OF THE CRIME SCENE.

KEY QUOTE

# 26 MR. DOUGLAS:

RIGHT THERE.

# 27 MR. COCHRAN:

FREEZE TIME.

# 28 MR. DOUGLAS:

IT SAYS, "DADDY, DIITA, OPA, CORA, ROBIN AND PAM" AND DIITA AND OPA IS GERMAN FOR GRANDMA, GRANDPA.

# 29 MS. CLARK:

NO. DIITA IS NOT. DIITA IS THE NAME.

KEY QUOTE

# 30 THE COURT:

DIITA IS JUDITHA.

# 31 MR. DOUGLAS:

YES, YOUR HONOR, I'M SORRY.

# 32 THE COURT:

ALL RIGHT. JUST THAT ONE LITTLE SPOT.

# 33 MR. COCHRAN:

YES, YOUR HONOR.

# 34 MR. DOUGLAS:

WE WANT TO GIVE HIM CONTEXT SO EVERYONE CAN SEE WHERE THAT COMES IN.

# 35 THE COURT:

CAN YOU BACK THAT UP A LITTLE, MR. HARRIS.

# 36 THE COURT:

ALL RIGHT. I TAKE IT THIS IS IN THE NATURE OF A 402 HEARING THAT WE ARE CONDUCTING NOW?

# 37 MR. DOUGLAS:

YES, YOUR HONOR, IT IS.

# 38 THE COURT:

ALL RIGHT. YOU MAY PROCEED.

# 39 MR. DOUGLAS:

THANK YOU, YOUR HONOR.

# 40 THE COURT:

DO YOU HAVE SOME QUESTIONS THAT YOU WANT TO ASK OF DETECTIVE PHILLIPS?

# 41 MR. DOUGLAS:

AT THE APPROPRIATE TIME THERE WILL BE.

# 42 MR. DARDEN:

FREEZE FRAME JUST THE TELEPHONE, RIGHT.

# 43 MR. COCHRAN:

JUST THE TELEPHONE.

# 44 MR. DARDEN:

NO OBJECTION.

# 45 THE COURT:

MR. HARRIS, CAN WE HAVE GET UP TO THAT SPOT SO WE KNOW WHAT WE ARE JUST FROZEN ON?

# 46 MR. HARRIS:

YES, YOUR HONOR.

# 47 THE COURT:

THERE IT IS RIGHT THERE. SEE IF YOU CAN GET A SHARPER FRAME.

# 48 THE COURT:

ALL RIGHT. ANYTHING ELSE BEFORE WE PROCEED?

# 49 MS. CLARK:

MAY I HAVE ONE MOMENT WITH COUNSEL, YOUR HONOR?

# 50 THE COURT:

CERTAINLY.

# 51 MS. CLARK:

THANK YOU.

# 52 (DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

# 53 THE COURT:

ALL RIGHT. COUNSEL, HAVE WE FINISHED OUR PREPARATIONS?

# 54 MR. COCHRAN:

I THINK WE ARE READY. I WANT HIM TO GET THE AUDIOTAPE BACK IN AND THEN I THINK WE ARE READY TO PROCEED, YOUR HONOR.

# 55 THE COURT:

ALL RIGHT.

# 56 MR. COCHRAN:

IT WILL JUST TAKE A SECOND.

# 57 THE COURT:

DO YOU NEED TO CUE THAT TAPE UP, MR. COCHRAN?

# 58 MR. COCHRAN:

I HAVE JUST ASKED HIM TO CUE IT UP TO A PARTICULAR POINT, YOUR HONOR.

# 59 THE COURT:

ALL RIGHT. HOLD ON.

# 60 (BRIEF PAUSE.)

# 61 MS. CLARK:

YOUR HONOR?

# 62 THE COURT:

MISS CLARK.

# 63 MS. CLARK:

THIS WITNESS NEVER SAW THE SPEED DIALER. WHY ARE WE SHOWING THIS WITNESS?

# 64 THE COURT:

WELL, THEY CAN ASK IF HE SAW IT. YOU SAID YOU HAD NO OBJECTION TO IT BEING SHOWN.

# 65 MS. CLARK:

AND I DON'T. I DON'T MIND IT BEING SHOWN. THE THING IS THAT IT SHOULD BE SHOWN WITH THE WITNESS WHO SAW IT, WHICH IS WAITING -- WHO IS WAITING TO TESTIFY RIGHT AFTER THIS ONE.

# 66 THE COURT:

HOLD ON. MISS CLARK, DO YOU HAVE AN OBJECTION TO SHOWING IT?

# 67 MS. CLARK:

IN GENERAL, NO. WITH THIS WITNESS THE ONLY PROBLEM IS THERE IS NO FOUNDATION HERE. THERE IS NO REASON TO SHOW TO IT A WITNESS WHO NEVER SAW IT. THERE IS NOTHING TO BE GAINED BY IT. DETECTIVE LANGE, WHO WILL TESTIFY IMMEDIATELY AFTER DETECTIVE PHILLIPS, DID.

# 68 MR. COCHRAN:

THIS IS CROSS-EXAMINATION AND IT WILL NOT PROLONG THE SITUATION.

# 69 THE COURT:

WHAT IS THE RELEVANCE IF THIS WITNESS NEVER SAW IT?

# 70 MR. COCHRAN:

IT MAY NOT BE RELEVANT IF HE NEVER SAW IT, YOUR HONOR, BUT WE KNOW THAT ONLY BECAUSE OF THE FACT THAT WE WENT UP AND HE JUST TOLD ME.

# 71 MS. CLARK:

YOUR HONOR --

# 72 MR. COCHRAN:

WHO SAYS I WOULD EVEN ASK HIM?

# 73 MS. CLARK:

DETECTIVE PHILLIPS JUST TOLD COUNSEL THAT HE DIDN'T SEE IT. MR. COCHRAN: I SAID THAT, COUNSEL. I SAID THAT, AND I'M NOT -- I'M NOT GOING TO BE WASTING TIME AND THERE WILL BE OTHER OFFICERS HERE, AS LONG AS SHE REPRESENTS SOMEBODY SAW THAT SPEED DIALER. IS THAT YOUR REPRESENTATION?

# 74 MS. CLARK:

THAT IS. THAT IS.

# 75 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 76 MR. COCHRAN:

YOU KNOW, IT IS PART OF THE CROSS-EXAMINATION, YOUR HONOR. THEY MAY WANT TO KNOW IF HE DIDN'T SEE IT.

# 77 MS. CLARK:

CROSS-EXAMINATION DOES HAVE TO BE RELEVANT, DOESN'T IT?

# 78 THE COURT:

IT DOES.

# 79 MR. COCHRAN:

I DON'T WANT TO ARGUE IT WITH THE WITNESS HERE, BUT THAT IS A POINT I WOULD LIKE TO MAKE. WHEN WE GET TO THAT POINT I WILL APPROACH THE BENCH.

# 80 THE COURT:

ALL RIGHT. WHEN WE GET TO THAT POINT.

# 81 MS. CLARK:

I'M GOING TO ASK FOR A SIDE BAR, YOUR HONOR.

# 82 THE COURT:

WELL, WE ARE HERE.

# 83 MR. COCHRAN:

I SAID --

# 84 MS. CLARK:

LET'S DO IT NOW.

# 85 THE COURT:

LET'S TALK ABOUT IT.

# 86 MR. COCHRAN:

OKAY.

# 87 THE COURT:

WE AGREE THAT IT IS PROBABLY THE SPEED DIALER THAT WAS THERE?

# 88 MR. COCHRAN:

WE SURELY DO, YOUR HONOR.

# 89 THE COURT:

ALL RIGHT. WHAT IS THE POINT -- THIS IS NOT THE DETECTIVE. THIS IS SOMEBODY WHO TOOK A CURSORY RUN-THROUGH.

# 90 MR. COCHRAN:

WELL, JUDGE, HE WAS IN CHARGE FOR TWO HOURS, FROM 2:10 TO 4:10. HE WAS INSIDE THAT HOUSE ON SEVERAL OCCASIONS. HE WANTED TO KNOW WHERE O.J. SIMPSON --

# 91 THE COURT:

YOU ARE RIGHT.

# 92 MR. COCHRAN:

IF THERE IS A SPEED DIALER IN THE KITCHEN THAT HAS "DADDY," YOUR HONOR --

# 93 THE COURT:

I JUST SAID YOU ARE RIGHT.

# 94 MR. COCHRAN:

OKAY. THANK YOU, YOUR HONOR.

# 95 MS. CLARK:

YOUR HONOR, HE WAS NOT INSIDE FROM 2:10 TO 4:10.

# 96 THE COURT:

I UNDERSTAND.

# 97 MS. CLARK:

THE TESTIMONY MAKES THAT VERY CLEAR.

# 98 THE COURT:

I UNDERSTAND THAT, BUT MR. COCHRAN IS MAKING THE POINT THAT THERE WAS THE ABILITY TO JUST WALK OVER TO THE PHONE, IF THEY KNEW -- SINCE THEY KNEW THAT SYDNEY -- SYDNEY AND JUSTIN WERE THE CHILDREN OF MR. SIMPSON AND IF THERE IS A DADDY ON THE SPEED DIALER, THERE WAS AN EASY WAY TO HAVE CONTACT AT THE RESIDENCE. THAT IS THE ONLY THING THAT IT IS WORTH AND THAT WILL TAKE ABOUT FORTY SECONDS WORTH OF TESTIMONY.

# 99 MR. COCHRAN:

THANK YOU, YOUR HONOR.

# 100 THE COURT:

WERE YOU AWARE OF THE SPEED DIALER? NO. DID YOU SEE THIS PHONE? NO, I DIDN'T. SOMEBODY ELSE WILL COME UP AND SAY WHAT IT IS. IT IS INTERESTING WHOSE NAME IS NOT ON THERE.

# 101 MR. COCHRAN:

WHO IS THAT?

# 102 THE COURT:

SIDE BAR WITHOUT THE REPORTER.

# 103 (A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

# 104 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

Temperature

procedural

Key Quotes (4)

Carl Douglas

NBC APPARENTLY RENTED THE ROCKINGHAM -- THE BUNDY CONDOMINIUM ON TUESDAY AND TOOK A TOUR AND AMONG THE ITEMS THAT THEY SHOWED ON THE TOUR WAS THE TELEPHONE WITH THE SPEEDY DIALER AND CERTAIN NOTATIONS SUCH AS 'DADDY' AND 'DIITA' AND 'CORA' AND 'ROBIN' AND 'PAM'

Explains the origin and content of the NBC tape — a media-rented crime scene walk-through that captured potentially relevant evidence the defense immediately sought to use.

Lance A. Ito

IT IS INTERESTING WHOSE NAME IS NOT ON THERE.

The judge's cryptic aside before calling an unreported sidebar — strongly implying OJ Simpson's name was absent from Nicole's speed dialer, a potentially significant detail about the nature of their relationship.

Lance A. Ito

THERE IS OUR REALTOR AND SHE WAS VERY GRACIOUS DURING OUR TOUR OF THE CRIME SCENE.

Judge casually reveals he personally toured the Bundy crime scene, a notable moment of informality during the tape review.

Marcia Clark

DIITA IS NOT. DIITA IS THE NAME.

Clark corrects Douglas's interpretation that 'Diita' was German for grandmother — Ito then clarifies it is a nickname for Juditha, Nicole's mother.

Evidence (1)

Informal

NBC videotape of a tour of Nicole Brown Simpson's Bundy condominium, showing the kitchen telephone speed dialer with names including 'Daddy,' 'Diita,' 'Opa,' 'Cora,' 'Robin,' and 'Pam'

Played in court during 402 hearing; freeze-framed on the speed dialer; admissibility for cross-examination argued and tentatively allowed

Notable Exchanges (2)

Marcia Clark•Johnnie Cochran•Lance A. Ito

Clark objected that Phillips never saw the speed dialer and had no foundation to testify about it, suggesting Detective Lange should be shown it instead. Cochran argued cross-examination relevance and that Phillips was on scene for two hours. Ito sided with Cochran, framing the point narrowly: 'Daddy' on the dialer showed an easy way to contact Simpson's residence.

strategic

Lance A. Ito•Johnnie Cochran

Cochran argued Phillips was inside Bundy from 2:10 to 4:10; Clark disputed this. Ito cut off the dispute by saying 'You are right' to Cochran, then when Cochran kept talking, Ito repeated 'I just said you are right' — an unusually direct judicial endorsement mid-argument.

revealing

Light Moments (2)

Lance A. Ito

While watching the NBC tape, Judge Ito recognized the realtor on screen and noted 'she was very gracious during our tour of the crime scene,' casually disclosing his own visit to Bundy.

Lance A. Ito

Cochran began speaking out of turn, then caught himself: 'ONE PERSON AT A TIME. I VIOLATED THE RULE.' Ito replied simply: 'AGAIN.'

Credibility Attacks (1)

⚔ Ron Phillips

Omission / failure to investigate

Defense sought to show that Phillips, who was on scene for hours, never checked the speed dialer on Nicole's phone — which listed 'Daddy' — as a way to quickly contact Simpson's household, implying investigative oversight.

Objections

2 objections (0 sustained, 0 overruled)

Proceeding 5051 • 104 utterances

Criminal Trial

Department 103