Sidebar: document admissibility

📄 Sidebar: document admissibility — Thursday, February 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\16\SIDEBAR-DOCUMENT-ADMISSIBILITY.DOC

TRIAL

▲ Day 20 of 167

◀ Cross-examination of Ron Phillips (part 5) Cross-examination of Ron Phillips (part 6) ▶

Date: Thursday, February 16, 1995 • Utterances: 23

Defense attorney Cochran attempts to use an unidentified document (D-1024) to refresh a witness's recollection, but Clark objects because she does not recognize it and it bears no discovery number. Cochran claims it is the prosecution's own document, tied to Vannatter's search warrant affidavit and a statement involving Kato Kaelin taken at 6 a.m. the morning of the crime. Judge Ito cuts off the dispute, ruling the objection premature since Cochran has not yet offered the document or read from it.

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

# 2 THE COURT:

WE'RE OVER HERE AT SIDEBAR.

# 3 MS. CLARK:

YOUR HONOR, I'VE NEVER SEEN THIS DOCUMENT BEFORE. THERE'S NO DISCOVERY NUMBER ON IT.

KEY QUOTE

# 4 MR. COCHRAN:

IT'S THEIR DOCUMENT.

# 5 MS. CLARK:

WHERE IS THE DISCOVERY NUMBER, COUNSEL?

# 6 MR. COCHRAN:

LET ME SHOW IT TO YOU. THIS IS THEIR DOCUMENT, TAKEN FROM THEM. A COPY WAS FAXED DOWN HERE TODAY. I DIDN'T HAVE IT WITH ME. THIS STATEMENT WAS TAKEN BY THE DETECTIVE 6:00 O'CLOCK THAT MORNING.

# 7 MS. CLARK:

I DON'T SEE ANY DISCOVERY NUMBER ON IT. I DON'T RECOGNIZE IT.

# 8 MR. COCHRAN:

THAT'S MY REPRESENTATION. IT'S THEIR DOCUMENT. THAT'S WHERE I GOT IT AT 6:00 O'CLOCK.

# 9 MS. CLARK:

I DON'T RECOGNIZE IT. I DON'T KNOW WHO TOOK THE STATEMENT. WE DON'T HAVE ANY FOUNDATION LAID WITH THIS WITNESS AS TO HOW THE STATEMENT WAS TAKE, BY WHOM, WHEN.

# 10 THE COURT:

I TAKE IT WHAT YOU ARE GOING TO DO IS GO UP THERE AND ASK HIM IF HE RECOGNIZES IT OR WHAT IT IS?

# 11 MR. COCHRAN:

ABSOLUTELY. I'M ONLY USING IT TO REFRESH HIS RECOLLECTION. VANNATTER USED THIS STATEMENT IN HIS AFFIDAVIT TO GET THAT SEARCH WARRANT. IT'S RIGHT IN THE COURT'S FILE. THEY'RE JUST WASTING TIME, YOUR HONOR. THAT'S ABSOLUTELY THE TRUTH. THIS DOCUMENT --

# 12 MS. CLARK:

IS COUNSEL REPRESENTING THAT IT WAS ATTACHED TO THE SEARCH WARRANT?

# 13 MR. COCHRAN:

NO. THIS DOCUMENT WAS USED -- ATTACHED IN THE SEARCH WARRANT. WHEN THEY LIED TO THE MAGISTRATE, THEY USED -- THEY WROTE THIS IN PENCIL -- AND THE CONVERSATION WITH BRIAN KATO KAELIN THAT MORNING, HE HAD SAID THAT THIS WAS ONE OF THE LIES THE COURT FOUND WHEN HE HAD THIS RECKLESS DISREGARD --

# 14 MS. CLARK:

I DON'T THINK THE COURT FOUND ANY LIES.

# 15 MR. COCHRAN:

WELL, THE COURT DID FIND RECKLESS DISREGARD FOR THE TRUTH, OKAY. AND WE ARE NOT DEBATING THAT, BUT I'M JUST TELLING YOU THIS DOCUMENT -- WE HAD THAT DOCUMENT SENT LAST NIGHT. THIS IS ONE OF THE DOCUMENTS THAT THE COURT WAS AWARE OF WHEN HE MADE THE FINDING BECAUSE THEY KNEW --

KEY QUOTE

# 16 MS. CLARK:

THIS DOCUMENT WAS NOT ATTACHED TO THE SEARCH WARRANT.

# 17 THE COURT:

NO. I KNOW.

# 18 MR. COCHRAN:

IT WAS NOT. I SAID IT WAS USED AT THAT HEARING TO ESTABLISH THAT --

# 19 THE COURT:

STOP. AT THIS POINT, THE OBJECTION IS PREMATURE BECAUSE HE HASN'T OFFERED IT, HASN'T READ ANYTHING FROM IT. I ASSUME YOU ARE JUST GOING TO SHOW IT TO HIM AND ASK HIM IF THAT CHANGES ANY OF HIS TESTIMONY.

# 20 MR. COCHRAN:

YES, YOUR HONOR.

# 21 THE COURT:

YOU'RE NOT READING IT INTO THE RECORD AT THIS POINT WITHOUT FOUNDATION.

# 22 MR. COCHRAN:

I HAVEN'T DONE THAT.

# 23 THE COURT:

I KNOW.

Temperature

tense

Key Quotes (4)

Marcia Clark

I'VE NEVER SEEN THIS DOCUMENT BEFORE. THERE'S NO DISCOVERY NUMBER ON IT.

Core objection — Clark challenges the document's provenance and the defense's compliance with discovery obligations.

Johnnie Cochran

VANNATTER USED THIS STATEMENT IN HIS AFFIDAVIT TO GET THAT SEARCH WARRANT. IT'S RIGHT IN THE COURT'S FILE. THEY'RE JUST WASTING TIME, YOUR HONOR.

Cochran links the document to alleged misconduct in the search warrant process, escalating the stakes beyond a simple foundation dispute.

Johnnie Cochran

THE COURT DID FIND RECKLESS DISREGARD FOR THE TRUTH, OKAY.

Reference to a prior judicial finding of reckless disregard — Cochran is building toward the police-misconduct narrative around the search warrant.

Lance A. Ito

THE OBJECTION IS PREMATURE BECAUSE HE HASN'T OFFERED IT, HASN'T READ ANYTHING FROM IT. I ASSUME YOU ARE JUST GOING TO SHOW IT TO HIM AND ASK HIM IF THAT CHANGES ANY OF HIS TESTIMONY.

Ito defuses the dispute efficiently — the fight is happening before it needs to.

Evidence (2)

D-1024

A document — apparently a statement taken by a detective at 6 a.m. the morning of the murders — received by defense via fax the prior night. Claimed by Cochran to be a prosecution document used in Vannatter's search warrant affidavit.

challenged before introduction; offered to refresh witness recollection

Informal

Vannatter's search warrant affidavit, referenced as the vehicle through which D-1024 was allegedly used

discussed

Notable Exchanges (2)

Johnnie Cochran•Marcia Clark

Clark repeatedly demands a discovery number and denies recognizing the document; Cochran insists it is their own document and accuses her side of wasting time. Each talks past the other until Ito intervenes.

heated

Johnnie Cochran•Marcia Clark

Dispute over whether D-1024 was attached to the search warrant; Clark flatly denies it, Cochran clarifies it was 'used at the hearing' rather than attached — a meaningful distinction he concedes mid-argument.

strategic

Credibility Attacks (1)

⚔ Philip Vannatter

prior judicial finding — reckless disregard for truth

Cochran invokes a court's prior finding of 'reckless disregard for the truth' in connection with Vannatter's search warrant affidavit, framing D-1024 as evidence of that misconduct.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5043 • 23 utterances

Criminal Trial

Department 103