📄 Testing protocol — Tuesday, February 21, 1995
📅 Feb 21 — Day 22
⚖️ Lance A. Ito🏛️ Marcia Clark🛡️ Barry Scheck🛡️ Johnnie Cochran
chain_of_custodydnapolice_procedure
Address:
C:\DEPT103\CRIMINAL\1995\FEB\21\TESTING-PROTOCOL.DOC
TRIAL
▲ Day 22 of 167

Testing protocol

Date: Tuesday, February 21, 1995 • Utterances: 30
Counsel conferred with Judge Ito about a dispute over the defense's request to examine and potentially test physical evidence before the prosecution introduces it. Marcia Clark objected that the defense kept making last-minute requests to inspect evidence, while Barry Scheck argued they needed time to arrange examination of items the prosecution planned to introduce. The judge resolved the immediate impasse by directing counsel to confer over the lunch recess and resume with Detective Lange's direct examination in the meantime.
1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)
2 THE COURT:

ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. ALL COUNSEL ARE AGAIN PRESENT. COUNSEL, IS THERE SOMETHING WE NEED TO DISCUSS ABOUT THE TESTING PROTOCOL?

3 MR. SCHECK:

YOUR HONOR, I DON'T KNOW WHAT YOUR TIMING IS, BUT I THINK THAT IT'S COMPLICATED AND I DON'T KNOW IF YOU WOULD WANT TO DO IT RIGHT NOW. I DON'T KNOW IF THERE'S ANY --

4 THE COURT:

WELL, IS TIME OF THE ESSENCE SINCE WE HAVE A WITNESS ON THE STAND OR IS THERE SOMETHING WE CAN DO ONCE WE --

5 MR. COCHRAN:

I THINK WE CAN TAKE THIS UP LATER.

6 MR. SCHECK:

IT'S GOING TO TAKE A WHILE TO DISCUSS.

7 MR. COCHRAN:

MAY MARSHA AND I HAVE A MOMENT WITH THESE TWO GENTLEMEN?

8 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)
9 MR. COCHRAN:

YOUR HONOR, WOULD YOU GIVE US ANOTHER MINUTE OR SO? WE'RE TRYING TO SAVE THE COURT TIME.

10 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)
11 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)
12 THE COURT:

MISS CLARK, HAVE WE RESOLVED THIS?

13 MS. CLARK:

I COULD. WITH THIS WITNESS, WE'RE GOING TO NEED A CERTAIN LIST OF ITEMS OF EVIDENCE. I DO NOT KNOW WHETHER THEY ARE INCLUDED IN THE LIST THAT THE DEFENSE NOW WANTS TO TAKE FOR FURTHER TESTING. AND I UNDERSTAND THAT THEY HAVE SOME LONG-RANGED PLANS. I DON'T KNOW WHAT THEY ARE. SO --

14 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)
15 MR. COCHRAN:

I THINK WHAT NEEDS TO HAPPEN, YOUR HONOR, IS THAT COUNSEL ARE GOING TO NEED TO TALK TO YOUR HONOR IN CHAMBERS AT SOME POINT AND TO CONTINUE THE EVIDENCE, AND WE CAN DO IT AT EITHER LUNCH TIME OR HAVE THE JURY COME BACK A LITTLE BIT LATER THIS AFTERNOON. WE CAN SAVE SOMETIME BY SPEAKING WITH YOU AND WORK THIS ISSUE OUT. BUT YOU NEED TO CARVE OUT SOME TIME I THINK FOR IT.

16 MS. CLARK:

IT WON'T BE RESOLVED IN 15 MINUTES I DON'T THINK.

17 THE COURT:

YOU WANT TO TELL ME SPECIFICALLY WHAT IT IS WE'RE TALKING ABOUT AT THIS POINT?

18 MS. CLARK:

I'VE BEEN SPECIFIC AS I CAN BE. IT'S REALLY THE DEFENSE THAT HAS NOT PUT INTO WRITING YET WHAT ITEMS THEY ARE ABOUT TO REQUEST.

19 MR. SCHECK:

SHOULD WE APPROACH THE BENCH OR DO YOU WANT TO --

20 THE COURT:

NO. WHY DON'T YOU JUST TELL ME RIGHT NOW.

21 MR. SCHECK:

YEAH. I THINK THAT THE -- THERE'S ISSUES WITH RESPECT TO ITEMS THAT WE HAVE EXAMINED ALREADY THAT I ANTICIPATE THEY WOULD BE PUTTING INTO EVIDENCE SOON BECAUSE OBSERVATIONS WERE MADE, DIFFERENT PIECES OF TRACE EVIDENCE WERE SECURED FROM THOSE ITEMS AND SEGREGATED, SINCE WE WEREN'T ALLOWED TO TEST ANYTHING, BUT JUST EXAMINE IT FOR FURTHER COMPARISON AND POTENTIALLY TESTING. THEN THERE IS THE LOGISTICS OF WORKING OUT ARRANGEMENTS TO EXAMINE OTHER ITEMS THAT THE PROSECUTION IS ANTICIPATING PUT INTO EVIDENCE, AND, AS THE COURT KNOWS, THAT'S A LONGER DISCUSSION. MY SUGGESTION IS THAT WE PROBABLY CAN DEAL WITH THIS IN CHAMBERS AT THE END OF THE DAY BECAUSE IT AGAIN IS GOING TO INVOLVE WHAT THE PROSECUTION INTENDS TO INTRODUCE AND WHEN THEY INTEND TO INTRODUCE IT SO THAT WE CAN LOOK AT IT BEFORE THEY DO THAT, WHERE THAT WOULD TAKE PLACE, WHEN THAT WOULD TAKE PLACE AND WHAT THE TIMING OF IT IS.

22 THE COURT:

ALL RIGHT. WELL, MISS CLARK, THEN CAN YOU PROCEED WITH YOUR DIRECT EXAMINATION WITH DETECTIVE LANGE FOR THE REMAINDER OF THE MORNING WITHOUT ANY NEED TO ADDRESS ANY OF THESE ISSUES?

23 MS. CLARK:

YES, I BELIEVE I CAN, YOUR HONOR. I DO WANT TO HAVE THE OPPORTUNITY TO FULLY ADDRESS THE COURT CONCERNING THIS MOST RECENT REQUEST BY THE DEFENSE. I DON'T KNOW HOW MANY TIMES THEY WANT TO LOOK AT ALL OF THIS EVIDENCE AND AT THE ELEVENTH HOUR AS THEY HAVE. MY UNDERSTANDING IS THAT EVERYTHING HAS BEEN EXAMINED BY THEM, AND SO WE COME TO A POINT --

24 THE COURT:

WELL, THE AGREEMENT WAS THAT THEY COULD EXAMINE IT, BUT NOT TEST IT. THAT WAS THE AGREEMENT OVER THE WEEKEND.

KEY QUOTE
25 MS. CLARK:

UH-HUH. BUT WE KEEP SENDING EVIDENCE OUT AND I MEAN, YOU KNOW, THROWING IT ALL OVER THE COUNTRY DOES NOT --

KEY QUOTE
26 THE COURT:

LET ME ASK YOU, MISS CLARK, WILL YOU BE ABLE TO PROCEED AND CONCLUDE THE COURT DAY THIS AFTERNOON WITHOUT ANY OF THE -- ANY DIFFICULTIES REGARDING THE PRESENTATION OF THE PHYSICAL EVIDENCE?

27 MS. CLARK:

THAT I DON'T KNOW. THAT'S THE PROBLEM. IF I COULD ASSURE THE COURT OF THAT, I WOULDN'T TAKE TIME TO DO THIS NOW.

28 THE COURT:

ALL RIGHT. LET'S DO THIS NOW. LET'S CONCLUDE THE MORNING SESSION. OVER THE LUNCH HOUR, I'LL HAVE COUNSEL TO CONFER. WHEN WE COME BACK AT 1:30, IF THERE'S ANYTHING THAT NEEDS TO BE RESOLVED, WE WILL TAKE IT UP AT THAT POINT.

29 MS. CLARK:

OKAY.

30 THE COURT:

ALL RIGHT. AND IF I COULD ASK MR. SCHECK AND MR. BLASIER, MR. CLARKE AND MR. HARMON, IF YOU COULD -- AND, MR. HODGMAN AND MR. YOCHELSON, PERHAPS IF YOU GENTLEMEN COULD CONFER WHILE COUNT IS IN SESSION WITH THE JURY ON OTHER MATTERS, PERHAPS WE CAN NARROW DOWN THE AREAS OF INQUIRY. I SEE NODS. ALL RIGHT. ALL RIGHT. LET'S HAVE THE JURY, PLEASE.

Temperature

tense

Key Quotes (4)

Marcia Clark
I DON'T KNOW HOW MANY TIMES THEY WANT TO LOOK AT ALL OF THIS EVIDENCE AND AT THE ELEVENTH HOUR AS THEY HAVE.
Clark's frustration with the defense's repeated, late-stage evidence inspection requests — a recurring tension throughout the trial
Lance A. Ito
WELL, THE AGREEMENT WAS THAT THEY COULD EXAMINE IT, BUT NOT TEST IT. THAT WAS THE AGREEMENT OVER THE WEEKEND.
Clarifies the existing court-brokered protocol limiting the defense to visual examination only, not destructive or chemical testing
Barry Scheck
SINCE WE WEREN'T ALLOWED TO TEST ANYTHING, BUT JUST EXAMINE IT FOR FURTHER COMPARISON AND POTENTIALLY TESTING.
Scheck outlines the defense's position that trace evidence was collected during examination but testing was deferred — framing a future dispute
Marcia Clark
BUT WE KEEP SENDING EVIDENCE OUT AND I MEAN, YOU KNOW, THROWING IT ALL OVER THE COUNTRY DOES NOT --
Reveals prosecution's logistical concern about evidence being shipped to multiple defense experts across jurisdictions

Evidence (1)

Informal
Physical evidence items (trace evidence) already examined by defense but not yet tested; specific items not named on the record
discussed — defense seeking further examination and potential testing before prosecution introduces them

Notable Exchanges (2)

Marcia ClarkLance A. Ito
Clark expressed frustration with the defense's pattern of eleventh-hour evidence requests; Ito reminded her of the weekend agreement limiting defense to examination only, not testing. Clark then raised concern about evidence being 'thrown all over the country.'
tense
Johnnie CochranMarcia Clark
Cochran requested an off-the-record sidebar with Clark to try to work out the issue privately and 'save the court time,' leading to multiple off-record discussions before returning to open court no closer to resolution.
strategic

Objections

None recorded
Proceeding 4906 • 30 utterances
Criminal Trial
Department 103
⚖️ Start
📂 FEB 21, 1995 📄 Testing protocol
FEB 21, 1995 KRT DvH TD