Sidebar: photograph foundation

📄 Sidebar: photograph foundation — Thursday, February 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\16\SIDEBAR-PHOTOGRAPH-FOUNDATION.DOC

TRIAL

▲ Day 20 of 167

◀ Jury greeting and seating Cross-examination of Ron Phillips (part 5) ▶

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

A brief sidebar in which Marcia Clark preemptively objected to Cochran showing a photograph of a blue plastic bag/container to the witness without first establishing that the witness actually saw it. Judge Ito ultimately ruled the objection premature, agreeing with Cochran that foundation could be laid during questioning.

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

# 2 THE COURT:

OVER AT SIDEBAR.

# 3 THE COURT:

MISS CLARK.

# 4 MS. CLARK:

ONCE AGAIN, I SEE THAT COUNSEL IS PROPOSING TO SHOW A PHOTOGRAPH TO THE WITNESS WITHOUT LAYING FOUNDATION AS TO WHETHER OR NOT HE SAW THE ITEM IN QUESTION, AND BASED ON THE OFFICER'S TESTIMONY THUS FAR, IT'S PRETTY MUCH A FOREGONE CONCLUSION THAT HE DID NOT.

# 5 THE COURT:

WHAT ARE WE TALKING ABOUT?

# 6 MR. COCHRAN:

WHAT NUMBER?

# 7 MS. CLARK:

PHOTOGRAPH OF THE BLUE PLASTIC BAG YOU PUT ON THE ELMO.

# 8 MR. COCHRAN:

NOT ON THE ELMO. IT HAPPENS TO BE ON MY THING HERE.

# 9 MS. CLARK:

YEAH. AND ALL I'M ASKING IS THAT PREEMPTIVELY, COUNSEL BE REQUIRED TO LAY A FOUNDATION THAT THIS WITNESS SAW WHAT HE'S GOING TO REFER TO IN THE PHOTOGRAPH.

# 10 THE COURT:

WHAT IS THIS?

# 11 MR. COCHRAN:

CAN YOU PASS THAT TO ME, OVER THERE? THIS IS A PICTURE OF THE GLOVE. THERE IS A CONTAINER THERE. I WANT TO ASK HIM IF HE SAW THAT THERE. I DON'T UNDERSTAND WHAT SHE IS TALKING ABOUT. THESE ARE PHOTOS WE GOT IN DISCOVERY. THIS IS A CONTAINER THAT WAS ON THE OTHER SIDE OF THE FENCE, WHICH IT APPEARS TO BE SOME BLUE PLASTIC BAG OR SOMETHING. IT LOOKS THAT AS THOUGH SOMETHING WAS CARRIED OUT. I'M GOING TO ASK HIM --

# 12 MS. CLARK:

AS LONG AS COUNSEL DOESN'T EDITORIALIZE SOMETHING WAS CARRIED, THAT BLUE PLASTIC CONTAINER.

KEY QUOTE

# 13 MR. COCHRAN:

WHEN HAVE I DONE THAT?

# 14 MS. CLARK:

IF THE WITNESS EVEN SAW THE THING.

# 15 THE COURT:

I THINK THE OBJECTION IS PREMATURE AT THIS POINT.

KEY QUOTE

# 16 MR. COCHRAN:

I THINK SO TOO, YOUR HONOR.

Temperature

procedural

Key Quotes (4)

Marcia Clark

IT'S PRETTY MUCH A FOREGONE CONCLUSION THAT HE DID NOT.

Clark telegraphs her belief that the witness never saw the item, making Cochran's line of questioning misleading before it starts.

Johnnie Cochran

IT LOOKS AS THOUGH SOMETHING WAS CARRIED OUT. I'M GOING TO ASK HIM --

Clark interrupts because Cochran is already editorializing — implying evidence tampering — before the witness has said anything.

Marcia Clark

AS LONG AS COUNSEL DOESN'T EDITORIALIZE SOMETHING WAS CARRIED, THAT BLUE PLASTIC CONTAINER.

Captures the prosecution's core concern: Cochran framing the photograph to imply something was removed from the crime scene.

Lance A. Ito

I THINK THE OBJECTION IS PREMATURE AT THIS POINT.

Ito declines to restrict Cochran preemptively, letting the examination proceed.

Evidence (1)

Informal

Photograph showing a blue plastic bag/container on the other side of the fence near where the glove was found

challenged on foundation grounds before being shown to witness

Notable Exchanges (2)

Marcia Clark•Johnnie Cochran

Clark accuses Cochran of placing the photo on the Elmo to display it; Cochran corrects that it was on his own display — a minor but pointed dispute over courtroom staging.

testy

Marcia Clark•Johnnie Cochran

Clark objects to Cochran's phrasing 'something was carried out'; Cochran responds 'When have I done that?' — deflecting the accusation of editorializing.

strategic

Light Moments (1)

Johnnie Cochran

Cochran mildly indignant: 'WHEN HAVE I DONE THAT?' — responding to Clark's accusation that he editorializes, which the defense regularly did.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5041 • 16 utterances

Criminal Trial

Department 103