Sidebar: Denise Brown statement

📄 Sidebar: Denise Brown statement — Tuesday, February 21, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\21\SIDEBAR-DENISE-BROWN-STATEMENT.DOC

TRIAL

▲ Day 22 of 167

◀ Direct examination of Det. Tom Lange (part 2) Direct examination of Det. Tom Lange (part 3) ▶

Date: Tuesday, February 21, 1995 • Utterances: 43

At sidebar, the prosecution (Clark) attempts to admit Denise Brown's phone statement 'He did it' — made when Detective Lange notified her of her sister Nicole's murder — under the spontaneous utterance hearsay exception. Judge Ito sustains the defense objection, ruling that the excited utterance exception requires the declarant to have perceived the triggering event, and Denise was 80 miles away in Dana Point. Clark argues that hearing startling news qualifies as perception and requests time to find supporting case law; Ito grants the recess.

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

# 2 THE COURT:

WE ARE OVER AT THE SIDEBAR. HOLD ON. WE'RE OVER AT THE SIDEBAR. THE QUESTION WAS, DENISE BROWN IS ON THE PHONE. SHE'S REACTED HYSTERICALLY. THEN NEXT QUESTION WAS, WHAT DID SHE SAY. THERE'S AN OBJECTION, HEARSAY. WHAT'S THE EXCEPTION?

# 3 MS. CLARK:

SPONTANEOUS UTTERANCE.

# 4 MR. COCHRAN:

JUDGE, WHAT'S THE OFFER OF PROOF ON THIS? THERE IS A 352 PROBLEM. THERE ARE OTHER PROBLEMS. AFTER WE HEAR THE OFFER OF PROOF, THEN I THINK YOU'LL UNDERSTAND WHY THIS SHOULD NOT COME IN. THERE'S MORE IN THIS RECORD THAN WE NEED. CAN WE HAVE AN OFFER OF PROOF?

# 5 MS. CLARK:

I THINK THIS IS A TEXTBOOK EXAMPLE OF SPONTANEOUS UTTERANCE, YOUR HONOR. SHE IS UNDER THE SURPRISE OF THE MOMENT IN RESPONSE TO THE NOTIFICATION GIVEN TO HER. SO WE HAVE AN ACT, CONDITION OR EVENT THAT HAS TRANSPIRED IMMEDIATELY TO TRIGGER THE RESPONSE, AND IN HER IMMEDIATE AND VERY EXCITED UTTERANCE, SHE SAID, "HE DID IT."

# 6 MR. COCHRAN:

SHE SAID, "HE DID IT." SHE'S SHOWING BIAS OR WHATEVER. SO THAT'S FOR THIS JURY TO DETERMINE.

# 7 MS. CLARK:

THAT'S ARGUMENT FOR COUNSEL.

# 8 MR. COCHRAN:

IT SHOWS HER BIAS, YOUR HONOR. THIS BECOMES A 352 PROBLEM. I KNOW THE COURT --

# 9 THE COURT:

NO. HERE'S THE PROBLEM THOUGH. THE EXCITED UTTERANCE EXCEPTION IS FOR THE DECLARANT TO THEN STATE WHAT IT IS THAT THEY ARE UNDER THE INFLUENCE OF OR SCENE THEY'RE EXPERIENCING, AND THIS PERSON, THIS DECLARANT WAS NOT AT THE LOCATION. SHE'S NOT RELATING AN EVENT THAT SHE'S A WITNESS TO.

# 10 MS. CLARK:

WAIT. YOUR HONOR, YOU KNOW SOMETHING? I'D LIKE TO BRING THE COURT SOME CASE AUTHORITY. ALL THAT HAS TO OCCUR IS SOME STARTLING EVENT TO HAVE TRANSPIRED TO WHICH SHE'S A WITNESS AND --

# 11 THE COURT:

TO WHICH SHE IS A WITNESS.

# 12 MS. CLARK:

YES. AND THE STARTLING EVENT IS THE NOTIFICATION SHE'S BEEN GIVEN. DETECTIVE LANGE HAS JUST INFORMED HER THAT HER SISTER WAS KILLED, AND THAT IS THE STARTLING EVENT TO WHICH SHE'S RESPONDING. SHE DOESN'T HAVE TO BE PRESENT TO WATCH SOMETHING VISIBLY IF SHE HEARS SOMETHING.

# 13 THE COURT:

THEN IT'S AN EXPRESSION OF OPINION, ISN'T IT?

# 14 MS. CLARK:

IT'S STILL A SPONTANEOUS UTTERANCE.

# 15 THE COURT:

ALL RIGHT. WE WILL COME BACK, AND IF YOU CAN TELL ME AFTER THE LUNCH HOUR THAT YOU'VE GOT A CASE THAT SAYS THAT SOMEBODY 80 MILES AWAY CAN THEN TELL US WHAT IT IS THAT OCCURRED --

# 16 MS. CLARK:

LET ME SEE IF I CAN CLARIFY WHAT THE COURT'S CONCERN IS.

# 17 THE COURT:

WAIT. WAIT. WAIT.

# 18 MS. CLARK:

THE COURT'S CONCERN IS THAT --

# 19 THE COURT:

SPONTANEOUS DECLARATIONS. THIS IS THE WORSE INDEX. 1240. SAYS ACT, CONDITION OR EVENT PERCEIVED BY THE DECLARANT.

# 20 MS. CLARK:

RIGHT. WHERE IS THE REQUIREMENT THERE THAT IT HAS TO BE VISIBLY SEEN?

# 21 THE COURT:

PERCEIVED.

# 22 MS. CLARK:

PERCEIVED. SHE HEARD IT. YOUR HONOR, I WOULD LIKE FOR THE OPPORTUNITY TO --

# 23 THE COURT:

ABSOLUTELY. SURE. RIGHT NOW, I AM GOING TO SUSTAIN THE OBJECTION.

# 24 MR. COCHRAN:

ALSO, WE WOULD LIKE TO RESPOND. I AGREE WITH YOUR HONOR'S --

# 25 MS. CLARK:

NO KIDDING. YOU AGREE WITH YOUR HONOR. WHAT A SHOCK THAT IS.

KEY QUOTE

# 26 MR. COCHRAN:

YOU'RE SUPPOSED TO AGREE TO LEAVE IT ALONE.

# 27 MS. CLARK:

I WOULD LOVE TO, BUT SOMETIMES I CAN'T. LET ME JUST MAKE SURE I GET THE CASE LAW THAT THE COURT REALLY WANTS. THE ISSUE IS THAT THE COURT SAYS SHE HAS TO VISIBLY PERCEIVE SOMETHING.

# 28 THE COURT:

SHE HAS TO HAVE PERCEIVED SOMETHING.

# 29 MS. CLARK:

SIMPLY HEARING SOMETHING IS NOT ENOUGH. OKAY. SO YOU WOULD LIKE CASE LAW INDICATING THAT HEARING SOMETHING STARTLING IS SUFFICIENT TO HAVE SUFFICIENT FOUNDATION FOR A SPONTANEOUS UTTERANCE.

# 30 THE COURT:

LET'S SAY -- FOR EXAMPLE, LET'S TAKE AWAY THE EXCITED UTTERANCE PART OF THE DISCUSSION AND LET'S JUST SAY, "DENISE, WHO DO YOU THINK DID THIS?" "WELL, I THINK O.J. DID IT." IS THAT ADMISSIBLE?

# 31 MS. CLARK:

MAY I INDICATE THAT, DIDN'T SHE TESTIFY TO SOMETHING VERY SIMILAR WHEN SHE WAS A WITNESS IN THIS CASE?

# 32 THE COURT:

NO. BUT DO YOU THINK THAT YOU CAN ASK HER COMPETENTLY TO ANSWER THE QUESTION, "WHO DO YOU THINK KILLED YOUR SISTER?"

# 33 MS. CLARK:

WAIT. WAIT. WAIT. HOLD ON A SECOND. DIDN'T SHE TESTIFY IN THIS TRIAL THAT WHEN SHE WAS NOTIFIED OF HER SISTER'S DEATH --

# 34 THE COURT:

"MY GOD, HE DID IT."

# 35 MS. CLARK:

THAT'S RIGHT. ISN'T THIS ADMISSIBLE TO CORROBORATE HER STATEMENT, YOUR HONOR, INDEPENDENTLY?

# 36 THE COURT:

THAT'S A DIFFERENT ISSUE. BUT --

# 37 MS. CLARK:

NO. BUT IT'S THE SAME TESTIMONY. DIFFERENT ISSUE, SAME TESTIMONY. EITHER WAY, IT'S ADMISSIBLE.

# 38 MR. COCHRAN:

NO, IT'S NOT.

# 39 MS. CLARK:

WHETHER IT'S SPONTANEOUS -- COUNSEL, WILL YOU STOP INTERRUPTING ME AND LET ME FINISH WHAT I'M SAYING? IT'S ADMISSIBLE AS A SPONTANEOUS UTTERANCE FOR THE REASON -- THAT'S THE PEOPLE'S PROOF. I WILL PRESENT THE COURT WITH CASES ON THE ISSUE OF PERCEPTION. BUT ON A SEPARATE ISSUE, AS A CORROBORATIVE WITNESS TO HER TESTIMONY AT TRIAL, WE HAVE AN INDEPENDENT MEANS OF ADMISSIBILITY.

# 40 THE COURT:

MISS CLARK, AT THIS POINT, I AM GOING TO SUSTAIN THE OBJECTION. WE'RE ONLY ABOUT 20 MINUTES AWAY FROM CALLING IT THE COURSE OF THE MORNING. SO YOU'LL HAVE PLENTY OF TIME TO REVISIT THIS.

# 41 MR. COCHRAN:

AS I SAY, IF THEY PRESENT YOU WITH CASE AUTHORITY, WE'LL HAVE A CHANCE TO RESPOND? THIS IS OPINION. IT'S NOT A SPONTANEOUS UTTERANCE. THE RECORD IS CLEAR SHE'S AT DANA POINT. HE'S CALLING OVER A PHONE, MAKES SOME STATEMENTS, HE TALKS TO HER FATHER. SHE GETS ON THE PHONE, MAKES A STATEMENT.

# 42 THE COURT:

KEEP YOUR VOICE DOWN. THANK YOU.

# 43 MS. CLARK:

HOLD ON ONE SECOND. CAN I ASK A QUESTION? THE COURT IS ALSO CONCERNED ABOUT THE ISSUE OF WHETHER IT'S A STATEMENT OF PAIN BECAUSE I DON'T THINK THERE'S ANY REQUIREMENT THAT IT NOT BE A STATEMENT --

Temperature

tense

Key Quotes (5)

Marcia Clark

IN HER IMMEDIATE AND VERY EXCITED UTTERANCE, SHE SAID, 'HE DID IT.'

The core statement at issue — Denise Brown's spontaneous accusation of O.J. Simpson upon learning her sister was murdered.

Lance A. Ito

THE EXCITED UTTERANCE EXCEPTION IS FOR THE DECLARANT TO THEN STATE WHAT IT IS THAT THEY ARE UNDER THE INFLUENCE OF OR SCENE THEY'RE EXPERIENCING, AND THIS PERSON, THIS DECLARANT WAS NOT AT THE LOCATION.

The judge's central legal reasoning for sustaining the objection — physical presence or direct perception is required.

Lance A. Ito

LET'S TAKE AWAY THE EXCITED UTTERANCE PART OF THE DISCUSSION AND LET'S JUST SAY, 'DENISE, WHO DO YOU THINK DID THIS?' 'WELL, I THINK O.J. DID IT.' IS THAT ADMISSIBLE?

Ito strips away the exception argument to expose the underlying problem: the statement is pure opinion testimony, not a perception of fact.

Marcia Clark

NO KIDDING. YOU AGREE WITH YOUR HONOR. WHAT A SHOCK THAT IS.

Clark's sharp sarcasm at Cochran for backing the judge's ruling — rare open sparring during a sidebar.

Marcia Clark

AS A CORROBORATIVE WITNESS TO HER TESTIMONY AT TRIAL, WE HAVE AN INDEPENDENT MEANS OF ADMISSIBILITY.

Clark pivots to a fallback argument — that the statement is admissible not as spontaneous utterance but to corroborate Denise Brown's own prior trial testimony saying the same thing.

Evidence (2)

Informal

Denise Brown's phone statement 'He did it,' made to Detective Lange upon being notified of Nicole Brown Simpson's murder while Denise was in Dana Point

prosecution sought to introduce; objection sustained pending case law

Informal

Denise Brown's prior trial testimony ('My God, he did it') given when she was a witness in the case

referenced by both Clark and Ito as a potential corroboration basis for the excluded phone statement

Notable Exchanges (3)

Marcia Clark•Lance A. Ito

Extended back-and-forth on whether 'perceived' in Evidence Code 1240 requires visual observation or includes hearing news over the phone. Clark argues hearing startling information qualifies; Ito is skeptical and ultimately sustains the objection while inviting case law.

strategic

Marcia Clark•Johnnie Cochran

After Cochran says he agrees with the judge's ruling, Clark sarcastically replies 'No kidding. You agree with your Honor. What a shock that is.' Cochran responds that she's 'supposed to agree to leave it alone.'

heated

Marcia Clark•Johnnie Cochran

Clark accuses Cochran of interrupting her mid-argument: 'Counsel, will you stop interrupting me and let me finish what I'm saying?'

heated

Light Moments (1)

Marcia Clark

Clark's sarcastic 'No kidding. You agree with your Honor. What a shock that is' after Cochran sides with the judge.

Credibility Attacks (1)

⚔ Denise Brown

bias

Cochran argues that Denise Brown's statement 'He did it' demonstrates personal bias against O.J. Simpson and should be left for the jury to weigh, not admitted as a reliable excited utterance.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 4908 • 43 utterances

Criminal Trial

Department 103