Sidebar: hearsay objection (1)

📄 Sidebar: hearsay objection (1) — Thursday, February 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\16\SIDEBAR-HEARSAY-OBJECTION-1-.DOC

TRIAL

▲ Day 20 of 167

◀ Direct examination of Ron Phillips (part 3) Direct examination of Ron Phillips (part 4) ▶

Date: Thursday, February 16, 1995 • Utterances: 10

Cochran objects to Clark's line of questioning about what OJ Simpson did and did not ask when first told his wife had been killed, arguing she is improperly trying to create a negative inference from a grieving man's silence. Clark defends the questions as standard cross-examination. Judge Ito overrules the objection, but not before mildly rebuking Clark for lecturing him about the lawyers' experience.

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

# 2 MS. CLARK:

SIDE BAR NO. 4 ALREADY.

# 3 THE COURT:

WHAT IS YOUR OBJECTION?

# 4 MR. COCHRAN:

MY OBJECTION, YOUR HONOR, THIS IS IMPROPER. THE -- COUNSEL IS NOW SEEKING TO ELICIT THAT HE DIDN'T ASK QUESTIONS ABOUT HOW HIS WIFE HAD BEEN KILLED. HE JUST SAID THE MAN WAS UPSET AND JUST HEARD HIS WIFE WAS KILLED. AND IF THERE WAS AN OBJECTION FOR GROSS INSENSITIVITY, THAT WOULD BE IT, BUT I'M JUST OBJECTING TO THE FORM OF THESE QUESTION. THERE WAS A CONVERSATION WHEN SOMEBODY HAS JUST BEEN TOLD THAT HIS WIFE HAS BEEN KILLED AND THAT -- I THINK IT IS IMPROPER TO GO INTO, WELL, DID HE ASK YOU HOW SHE WAS KILLED? DID YOU ASK -- HE TOLD US WHAT THE CONVERSATION WAS. SO, YOU KNOW, HE CAN'T -- I THINK SHE IS TRYING TO CREATE A NEGATIVE INFERENCE BY ASKING THESE QUESTIONS. THE INVESTIGATOR GAVE US THE CONVERSATION ALREADY. SHE CAN SEE IF HE ASKED ANYTHING ELSE, BUT IT IS CLEAR THIS OFFICER IS GIVING HIS RECOLLECTION WHATEVER THE CONVERSATION WAS. MR. SIMPSON'S MAY NOT COMPORT WITH THAT TOTALLY, BUT I THINK IT IS UNFAIR TO ASK, WELL, DID HE ASK THIS, DID HE ASK HOW SHE DIED, DID HE ASK THAT, WHEN HE IS CONCERNED ABOUT HIS KIDS AND COMING BACK TO CALIFORNIA. I THINK SHE KNOWS WHEN THE CONVERSATION -- THAT IS NOT FAIR.

# 5 THE COURT:

UH-HUH.

# 6 MR. COCHRAN:

THE CIRCUMSTANCES --

# 7 MS. CLARK:

THAT IS WHAT CROSS-EXAMINATION IS FOR. THERE IS NOTHING IMPERMISSIBLE IN THESE QUESTIONS. I'M ASKING HIM WHAT THE DEFENDANT'S RESPONSE WAS. THERE IS NOTHING IMPERMISSIBLE. IF COUNSEL WANTS TO CROSS-EXAMINE AND BRING OUT THE FACT THAT HE WAS UPSET, THAT IS WHAT IT IS FOR, AND COUNSEL KNOWS THAT VERY WELL. THIS IS AN EXPERIENCED TRIAL ATTORNEY HERE. THIS IS NOT SOME NOVICE. HE KNOWS THAT THESE QUESTIONS ARE PERMISSIBLE.

# 8 THE COURT:

I DON'T NEED TO BE TOLD ABOUT THE LIFE EXPERIENCE OF THE LAWYERS HERE. I JUST WANT TO KNOW YOU FEEL THERE IS AN INSUFFICIENT LEGAL BASIS FOR THE OBJECTION, CORRECT?

KEY QUOTE

# 9 MS. CLARK:

THAT'S RIGHT.

# 10 THE COURT:

THANK YOU. THE OBJECTION IS OVERRULED.

Temperature

tense

Key Quotes (3)

Johnnie Cochran

IF THERE WAS AN OBJECTION FOR GROSS INSENSITIVITY, THAT WOULD BE IT, BUT I'M JUST OBJECTING TO THE FORM OF THESE QUESTIONS.

Cochran frames the issue as both a legal and moral one — the questions are unfair to ask of a man who had just learned his wife was dead.

Marcia Clark

THIS IS AN EXPERIENCED TRIAL ATTORNEY HERE. THIS IS NOT SOME NOVICE. HE KNOWS THAT THESE QUESTIONS ARE PERMISSIBLE.

Clark lectures the judge by appealing to Cochran's experience, which promptly backfires.

Lance A. Ito

I DON'T NEED TO BE TOLD ABOUT THE LIFE EXPERIENCE OF THE LAWYERS HERE. I JUST WANT TO KNOW YOU FEEL THERE IS AN INSUFFICIENT LEGAL BASIS FOR THE OBJECTION, CORRECT?

Ito shuts down Clark's posturing and redirects to the legal question — a quiet but pointed rebuke.

Evidence (1)

Informal

Investigator's account of conversation with OJ Simpson when he was notified of Nicole's death, including what Simpson said and did not ask

discussed, contested

Notable Exchanges (1)

Marcia Clark•Lance A. Ito

Clark argues Cochran's experience proves the questions are permissible, and Ito cuts her off, refusing to hear about the lawyers' credentials and asking her to stick to the legal point.

pointed

Credibility Attacks (1)

⚔ OJ Simpson (indirectly)

negative inference / omission

Clark attempts to highlight that Simpson, upon learning of Nicole's death, did not ask how she was killed — implying consciousness of guilt or lack of surprise.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 5034 • 10 utterances

Criminal Trial

Department 103