Sidebar: hearsay objection (2)

📄 Sidebar: hearsay objection (2) — Thursday, February 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\16\SIDEBAR-HEARSAY-OBJECTION-2-.DOC

TRIAL

▲ Day 20 of 167

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

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

A sidebar sparked by Marcia Clark's hearsay objection to Cochran's question asking a detective whether Arnelle Simpson said OJ was out of town. Cochran argues the statement isn't hearsay because it wasn't offered for the truth of the matter asserted, but rather to explain the investigative steps that led to contacting Cathy Randa. Clark uses the objection to air a broader grievance: that Ito cuts her off on similar questions but lets Cochran complete his.

# 1 THE COURT:

OVER HERE AT THE SIDEBAR, COUNSEL.

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

# 3 THE COURT:

WHAT'S THE OBJECTION?

# 4 MS. CLARK:

HEARSAY, YOUR HONOR.

# 5 THE COURT:

WHAT BASIS?

# 6 MS. CLARK:

ON WHAT BASIS? THE QUESTION ITSELF ASKED FOR NOTHING BUT THAT, "DID ARNELLE SIMPSON TELL YOU, DID KATO KAELIN TELL YOU THAT?" AND THE COURT IS PERMITTING COUNSEL TO GO AHEAD AND ASK THESE QUESTIONS WHEN THEY BEGIN WITH OBVIOUSLY HEARSAY RESPONSES; "DID THEY TELL YOU THE FOLLOWING?" WHEN I'VE ASKED THESE QUESTIONS, THE COURT HAS CUT ME OFF AT THE KNEES, HASN'T EVEN PERMITTED ME TO COMPLETE THE QUESTION. NOW THE COURT HAS PERMITTED MR. COCHRAN TO NOT ONLY COMPLETE THE QUESTION, BUT ELICIT AN ANSWER THAT IS ONLY A HEARSAY RESPONSE. WHAT ELSE COULD THERE BE IN THIS QUESTION BUT HEARSAY?

# 7 THE COURT:

WHAT'S THE EXCEPTION, MR. COCHRAN?

# 8 MR. COCHRAN:

ABSOLUTELY, YOUR HONOR. MAY I JUST ADDRESS, FIRST OF ALL, COUNSEL NEEDS TO TALK ABOUT EVERYTHING THAT'S HAPPENED BEFORE WHEN WE COME UP HERE. I ASKED HIM THIS QUESTION, WHETHER OR NOT ARNELLE SIMPSON INDICATED TO HIM WHAT WOULD BE AN EXCEPTION TO THE HEARSAY RULE, YOUR HONOR. THE QUESTION WAS, DID SHE SAY HER FATHER WAS IN CHICAGO BECAUSE I HAVE A STATEMENT AND LANGE -- SO SHE KNOWS, LANGE AND VANNATTER ARE GOING TO SAY THAT'S IN THE REPORT. THIS IS NOTHING I AM MAKING UP. THEY SAID THEY WANT THE TRUTH HERE. THEY CALL CATHY RANDA AND GET THE LOCATION.

# 9 THE COURT:

THE QUESTION IS, "DID ARNELLE SIMPSON TELL YOU HER FATHER WAS IN CHICAGO"?

# 10 MR. COCHRAN:

YES. THAT WAS THE QUESTION.

# 11 MS. CLARK:

THAT WAS THE QUESTION.

# 12 MR. COCHRAN:

HER FATHER IS IN CHICAGO. AND WHAT HAPPENED NEXT AND THAT'S -- SHE DID BRING IT ON DIRECT, AS MR. BAILEY POINTED OUT, THEY THEN CALLED CATHY RANDA, WHICH THEY BROUGHT OUT ALREADY.

# 13 MS. CLARK:

I THOUGHT THAT WAS NOT THE QUESTION. THE QUESTION WAS --

# 14 THE COURT:

LET ME READ IT. LET'S SEE WHAT THE QUESTION WAS.

# 15 (BRIEF PAUSE.)

# 16 THE COURT:

THE QUESTION WAS, "DID ARNELLE SIMPSON TELL YOU HER FATHER WAS OUT OF TOWN?"

# 17 MR. COCHRAN:

YES. AND, JUDGE, THAT'S --

# 18 MS. CLARK:

WAIT A MINUTE. CAN WE GO BACK?

# 19 MR. DARDEN:

IT ASKS FOR HEARSAY.

# 20 MR. COCHRAN:

THAT'S NOT HEARSAY. IT'S NOT HEARSAY, IT'S NOT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED. SHE THEN GAVE HIM THE PHONE NUMBER TO CATHY RANDA SO HE COULD FIND OUT WHERE HE WAS EXACTLY, WHAT SHE ELICITED ALREADY. THAT'S WHAT I'M TRYING TO SHOW.

KEY QUOTE

# 21 MS. CLARK:

I WASN'T PERMITTED TO ELICIT ANY OF THIS.

# 22 MR. COCHRAN:

TALK TO THE COURT.

# 23 THE COURT:

MISS CLARK, YOU WERE ALLOWED TO ASK QUESTIONS; "WHAT DID YOU DO THEN?" "WELL, THEN WE TALKED TO ARNELLE SIMPSON. SHE SAID SHE DIDN'T KNOW WHERE HER FATHER WAS, BUT CATHY DID." I ALLOWED YOU TO DO THAT. I ALLOWED --

KEY QUOTE

Temperature

tense

Key Quotes (3)

Marcia Clark

WHEN I'VE ASKED THESE QUESTIONS, THE COURT HAS CUT ME OFF AT THE KNEES, HASN'T EVEN PERMITTED ME TO COMPLETE THE QUESTION. NOW THE COURT HAS PERMITTED MR. COCHRAN TO NOT ONLY COMPLETE THE QUESTION, BUT ELICIT AN ANSWER THAT IS ONLY A HEARSAY RESPONSE.

Clark's sharpest accusation of unequal treatment from the bench — a recurring frustration for the prosecution throughout the trial.

Johnnie Cochran

IT'S NOT HEARSAY, IT'S NOT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED. SHE THEN GAVE HIM THE PHONE NUMBER TO CATHY RANDA SO HE COULD FIND OUT WHERE HE WAS EXACTLY.

Cochran correctly invokes the classic hearsay exception — the statement is admitted not to prove OJ was out of town, but to explain the detective's subsequent investigative actions.

Lance A. Ito

MISS CLARK, YOU WERE ALLOWED TO ASK QUESTIONS; 'WHAT DID YOU DO THEN?' 'WELL, THEN WE TALKED TO ARNELLE SIMPSON. SHE SAID SHE DIDN'T KNOW WHERE HER FATHER WAS, BUT CATHY DID.' I ALLOWED YOU TO DO THAT.

Ito pushes back on Clark's grievance, asserting she had equivalent latitude — a ruling that ends the sidebar without fully satisfying the prosecution.

Evidence (3)

Informal

Arnelle Simpson's statement to detectives that her father was out of town (in Chicago)

challenged as hearsay; defense argues it is non-hearsay verbal act explaining investigative steps

Informal

Cathy Randa (OJ's assistant) — referenced as the source detectives contacted to locate OJ

discussed as the follow-up to Arnelle's statement, already elicited on direct

Informal

Detective report by Lange and Vannatter documenting Arnelle Simpson's statement

cited by Cochran as basis for the question — it is in the written record

Notable Exchanges (2)

Marcia Clark•Lance A. Ito

Clark argues she was cut off at the knees for similar hearsay-adjacent questions while Cochran was allowed to complete his question and get an answer. Ito disputes this characterization and explains what he did permit Clark to elicit.

heated

Johnnie Cochran•Marcia Clark

Both sides dispute what the exact question was before Ito reads back the record. Clark says 'Wait a minute, can we go back?' — a small moment of factual disagreement that Ito resolves by reading the transcript himself.

strategic

Witness Demeanor

(BRIEF PAUSE.) — Ito reading back the question from the record

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 5045 • 23 utterances

Criminal Trial

Department 103