Sidebar: opinion evidence

📄 Sidebar: opinion evidence — Tuesday, February 21, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\21\SIDEBAR-OPINION-EVIDENCE.DOC

TRIAL

▲ Day 22 of 167

◀ Direct examination of Det. Tom Lange (part 5) Direct examination of Det. Tom Lange (part 6) ▶

Date: Tuesday, February 21, 1995 • Utterances: 44

At sidebar, Cochran objected that Clark's question asking what it meant to the detective that a victim had his keys in his hand during a fight called for improper speculation and invaded the jury's province. Clark argued the detective could offer an expert opinion based on his experience investigating homicides. Ito ruled he would allow the opinion testimony if Clark first laid proper foundation for the detective's expertise, noting the inference — that holding keys in one's sword hand signals being caught off guard — is a logical conclusion.

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

# 2 THE COURT:

OKAY. WHAT WAS THE QUESTION, MISS CLARK? WHAT WAS THE QUESTION?

# 3 MS. CLARK:

THE QUESTION --

# 4 (RECORD READ.)

# 5 MS. CLARK:

AND THEN I MEANT TO SAY "TO YOU."

# 6 THE COURT:

I THOUGHT HE HAS ALREADY TESTIFIED THAT IT APPEARED TO HIM THAT SINCE HE HAD POCKETS HE HAD THE KEYS IN HIS HANDS WHEN THE FIGHT STARTED.

# 7 MR. COCHRAN:

THERE WAS A QUESTION BEYOND THAT.

# 8 MS. CLARK:

AND THE QUESTION BEYOND THAT IS AND WHAT DID THAT INDICATE TO YOU?

# 9 MR. COCHRAN:

CALLS FOR SPECULATION AS TO WHAT -- THE FIRST PART IS QUESTIONABLE, BUT THERE IS ANOTHER QUESTION.

# 10 MS. CLARK:

IT IS NOT SPECULATION. HE IS TALKING ABOUT WHAT IT MEANS TO HIM?

# 11 THE COURT:

WHAT IS HE GOING TO SAY?

# 12 MS. CLARK:

I THINK HE IS GOING TO SAY THAT IT INDICATED SURPRISE.

# 13 MR. COCHRAN:

YOU SEE, THAT IS SPECULATION.

# 14 MS. CLARK:

TO HIM. HOW CAN IT BE SPECULATION WHEN HE IS TALKING ABOUT WHAT HE CONCLUDED BASED ON WHAT HE SAW? IT MIGHT BE SPECULATION AS TO WHAT ANOTHER PERSON WOULD CONCLUDE, BUT HE CAN CERTAINLY INDICATE WHAT SIGNIFICANCE THIS ITEM HAD TO HIM.

# 15 MR. COCHRAN:

MAY I RESPOND? IT IS IRRELEVANT WHAT IT MEANS TO HIM. THIS IS A QUESTION FOR THE JURY, NOT FOR HIM, WHAT HE THINKS. I MEAN, HE HAS ALREADY TOLD US ABOUT THE KEYS AND NOT BEING IN THE POCKETS AND THAT SEEMS ON THE EDGE AND I DIDN'T OBJECT, BUT NOW THEY ARE GOING THIS NEXT STEP IS A QUESTION FOR THE JURY. HE DOESN'T MAKE THE DECISION. THE JURY MAKES THE DECISION IN THIS CASE. AND THAT IS SPECULATION, YOUR HONOR, BEYOND THE PALE. THERE IS NO FOUNDATION FOR THAT.

KEY QUOTE

# 16 MS. CLARK:

HE IS ENTITLED -- HE IS THE INVESTIGATING OFFICER. HE DIRECTED THAT CERTAIN THINGS BE DONE, PHOTOGRAPHS BE TAKEN, MEASUREMENTS BE TAKEN FOR A REASON. THINGS HAD SIGNIFICANCE FOR A REASON AND HE IS ENTITLED TO EXPLAIN THOSE REASONS.

# 17 THE COURT:

UH-HUH.

# 18 MS. CLARK:

THIS IS NOT THE PATROL OFFICER AND THIS IS THE ONE WHO MAKES DECISIONS.

# 19 THE COURT:

I AM NOT INTERESTED IN THAT EXPLANATION. I MEAN, DO YOU THINK IT IS A LOGICAL INFERENCE THAT THAT MEANS HE WAS TAKEN BY SURPRISE? DO YOU THINK THIS IS SOMETHING THAT IS SUBJECT TO THIS KIND OF OPINION? YOU ARE ESSENTIALLY ASKING OPINION.

# 20 MS. CLARK:

NO, IT IS MORE THAN AN OPINION, BECAUSE WE ARE, AFTER ALL, TALKING ABOUT SOMEBODY WITH EXPERTISE. WE ARE TALKING ABOUT SOMEBODY WHO HAS ANALYZED A CERTAIN NUMBER OF CRIME SCENES. HE IS TESTIFYING AS AN EXPERT AND BASED --

# 21 THE COURT:

HAS HE TESTIFIED?

# 22 MR. SHAPIRO:

HE HAS NOT.

# 23 MR. COCHRAN:

HAS HE BEEN AN EXPERT ONE TIME? SHE HASN'T EVEN BROUGHT THAT OUT. THERE IS NO PROPER FOUNDATION.

# 24 MS. CLARK:

I BROUGHT OUT THAT HE HAS INVESTIGATED HUNDREDS OF HOMICIDES. I LAID THAT FOUNDATION IN THE VERY BEGINNING, HOW MANY HOMICIDES HE HAS INVESTIGATED.

# 25 THE COURT:

HOLD ON. HOLD ON.

# 26 (BRIEF PAUSE.)

# 27 THE COURT:

YOU DIDN'T GO INTO HOW MANY HOMICIDES HE HAS INVESTIGATED AND ALL THAT KIND OF STUFF.

# 28 MS. CLARK:

YOU ARE KIDDING?

# 29 MR. COCHRAN:

JUDGE, MAY I BE HEARD? SHE HASN'T GONE INTO -- I KNOW THERE IS OTHER TESTIMONY, BUT JUDGE, STILL THE AREA OF SURPRISE IS OPINION AND THAT IS NOT RELEVANT. THAT IS NOT RELEVANT TO THIS JURY. YOU HAVE ALREADY RULED ON THAT. SO LET ME MOVE ON. SHE CAN LAY THE FOUNDATION ALL SHE WANTS.

# 30 THE COURT:

AT THIS POINT THERE IS NO FOUNDATION FOR THE QUESTION.

# 31 MR. COCHRAN:

BACK UP HERE AGAIN, YOUR HONOR. WHAT HAPPENED IS THAT YOU ASKED HIM "WHEN DID YOU JOIN THE LAPD, HOW LONG HAVE YOU BEEN A DETECTIVE, HOW LONG HAVE YOU BEEN A HOMICIDE DETECTIVE," BUT YOU NEVER ASKED HIM "HOW MANY HOMICIDES HAVE YOU INVESTIGATED?"

# 32 MR. COCHRAN:

I WOULD LOVE TO HEAR THAT NOW.

# 33 MS. CLARK:

STANDARD ROUTINE STUFF. I JUST DIDN'T BELIEVE IT.

# 34 MR. COCHRAN:

THIS IS YOUR FIRST CASE IN A LONG TIME. YOU HAVE BEEN AN ADMINISTRATOR, WE CAN TELL.

KEY QUOTE

# 35 THE COURT:

COUNSEL, ASSUMING THAT SHE GETS THE APPROPRIATE ANSWERS, I'M GOING TO ALLOW THE QUESTION AND ANSWER BECAUSE I THINK HE CAN OPINE THAT BASED UPON HIS EXPERIENCE, ASSUMING IT IS THERE.

# 36 MR. COCHRAN:

MAY I BE HEARD, YOUR HONOR?

# 37 THE COURT:

SURE.

# 38 MR. COCHRAN:

YOUR HONOR, SURPRISE? HOW CAN HE OPINE THAT? HE DIDN'T HAVE A VOTE. I MEAN, WHAT ARE WE GOING TO DO -- I MEAN, THAT IS PREPOSTEROUS FOR HIM TO UNDERSTAND THAT HE COULD SAY WHETHER HE WAS TAKEN BY SURPRISE. WHAT DOES IT SAY THAT? HOW DO WE KNOW? HOW DO YOU SEPARATE THAT OUT? WE NEED A FURTHER FOUNDATION.

# 39 THE COURT:

COUNSEL, COUNSEL, IT GOES TO WHY MEN SHAKE HANDS, IT GOES TO WHY MEN GO ON THE LEFT SIDE OF THE ROAD INSTEAD OF THE RIGHT SIDE OF THE ROAD, SO THAT YOU HAVE YOUR SWORD HAND FREE. IF YOU HAVE YOUR KEYS IN YOUR SWORD HAND --

KEY QUOTE

# 40 MR. COCHRAN:

JUDGE, I DON'T THINK --

# 41 THE COURT:

I KNOW MR. BAILEY CAN APPRECIATE THIS KIND OF STUFF.

# 42 MR. COCHRAN:

IN 1394, YOUR HONOR. I THINK THAT IS THE RANKEST FORM OF SPECULATION AND SURPRISE HERE. THERE ARE OTHER THEORIES.

KEY QUOTE

# 43 THE COURT:

I THINK IT IS A LOGICAL CONCLUSION.

# 44 MR. COCHRAN:

GEE, JUDGE. STREET SAVVY.

Temperature

procedural

Key Quotes (4)

Johnnie Cochran

IT IS IRRELEVANT WHAT IT MEANS TO HIM. THIS IS A QUESTION FOR THE JURY, NOT FOR HIM, WHAT HE THINKS.

Core objection: lay witness opinions on ultimate factual questions usurp the jury's role.

Johnnie Cochran

THIS IS YOUR FIRST CASE IN A LONG TIME. YOU HAVE BEEN AN ADMINISTRATOR, WE CAN TELL.

Sharp personal jab at Clark after Ito noted she had not asked the detective how many homicides he had investigated — a foundational question Clark claimed she had asked.

Lance A. Ito

IT GOES TO WHY MEN SHAKE HANDS, IT GOES TO WHY MEN GO ON THE LEFT SIDE OF THE ROAD INSTEAD OF THE RIGHT SIDE OF THE ROAD, SO THAT YOU HAVE YOUR SWORD HAND FREE.

The judge himself supplied the historical rationale supporting Clark's inference — an unusual and colorful moment of judicial editorializing.

Johnnie Cochran

IN 1394, YOUR HONOR. I THINK THAT IS THE RANKEST FORM OF SPECULATION AND SURPRISE HERE.

Cochran dismisses Ito's medieval sword-hand analogy with dry wit, undercutting the judge's reasoning while keeping the tone light.

Evidence (1)

Informal

Keys found in victim's hand during the fight — their position discussed as circumstantial evidence of surprise

discussed

Notable Exchanges (2)

Lance A. Ito•Marcia Clark

Ito flatly stated Clark had not asked the detective how many homicides he had investigated, undermining her claim of having laid the expert foundation. Clark's incredulous response — 'You are kidding?' — drew a firm correction from the bench.

tense

Lance A. Ito•Johnnie Cochran

After Ito offered the sword-hand-free analogy to justify the inference, Cochran punctured it with 'In 1394, your honor,' prompting Ito to quip that F. Lee Bailey would appreciate the historical reference.

light

Light Moments (3)

Johnnie Cochran

Cochran quipped 'In 1394, your honor' to mock Ito's medieval sword-hand rationale.

Lance A. Ito

Ito said 'I KNOW MR. BAILEY CAN APPRECIATE THIS KIND OF STUFF' after invoking the sword-hand historical custom — a sidelong compliment to Bailey's old-school sensibility.

Johnnie Cochran

Cochran jabbed Clark for failing to ask basic foundation questions: 'This is your first case in a long time. You have been an administrator, we can tell.'

Credibility Attacks (1)

⚔ Marcia Clark

competence/professional mockery

Cochran publicly suggested Clark had grown rusty as an administrator and forgot to ask a basic foundation question about the detective's experience — doing so in front of the judge at sidebar.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 4928 • 44 utterances

Criminal Trial

Department 103