📄 Motion: videotape admissibility — Wednesday, February 22, 1995
Address:
C:\DEPT103\CRIMINAL\1995\FEB\22\MOTION-VIDEOTAPE-ADMISSIBILITY.DOC
TRIAL
▲ Day 23 of 167

Motion: videotape admissibility

Date: Wednesday, February 22, 1995 • Utterances: 55
Cochran seeks to admit a news media videotape of the Bundy crime scene showing the coroner's arrival and removal of Nicole Brown Simpson and Ronald Goldman's bodies. Clark objects strenuously on grounds that the zoom lens creates irremediable depth distortion, making investigators appear to be standing in blood when they may not be, and that edited clips will mislead the jury. Judge Ito defers ruling, ordering defense to prepare specific excerpts overnight for a 9:30 a.m. hearing.
1 MR. COCHRAN:

COULD YOU TELL ON THERE -- DOES IT REFRESH YOUR RECOLLECTION AT ALL THAT THE LIVER TEMPERATURE OF MR. GOLDMAN WAS TAKEN THERE AT THE SCENE? DO YOU HAVE A RECOLLECTION OF THAT NOW AT ALL?

2 THE WITNESS:

I DON'T SEE THAT ON THERE, BUT I BELIEVE THAT'S WHERE IT WAS.

3 THE COURT:

ALL RIGHT. IS THERE AN OBJECTION TO THIS?

4 MS. CLARK:

YES. WE STILL HAVE A PROBLEM WITH THE TIME AND WITH THE ANGLE. WE HAVE A PROBLEM WITH DEPTH PERCEPTION. THIS IS A TELESCOPIC LENS. OBVIOUSLY THERE WAS NO MEDIA ALLOWED INSIDE THE CRIME SCENE TAPE. AND THERE'S A PROBLEM WITH DISTORTION AS WELL AS THE LACK OF FOUNDATION.

5 MR. COCHRAN:

WELL, YOUR HONOR, THAT GOES TO WEIGHT, NOT ADMISSIBILITY. WE WILL LAY A FOUNDATION. WE CAN USE THE CAMERAMAN. THIS WAS TAKEN CONTEMPORANEOUSLY. WE KNOW WHAT TIME IT WAS, YOUR HONOR, 9:10 -- BETWEEN 9:10 AND 10:30. IT'S ABSOLUTELY CLEAR. THE PICTURES ARE CLEAR. WE WANT TO SHOW NOTHING OBJECTIONABLE AND I WANT TO CUT OUT ANYTHING ABOUT MOVING THE BODIES BECAUSE I DON'T WANT -- I DON'T THINK THAT'S NECESSARY. THE WITNESS CAN LAY THE FOUNDATION.

6 THE COURT:

WHEN DO YOU INTEND ON DOING THIS?

7 MR. COCHRAN:

THIS AFTERNOON I THINK.

8 THE COURT:

HOW DO WE DO IT WITHOUT SHOWING ALL THE EXTRANEOUS STUFF AND FAST FORWARDING?

9 MR. COCHRAN:

IF I MAY ASK MY EXPERTS ABOUT IT AND FIND OUT.

10 MS. CLARK:

WHY NOT --

11 MR. COCHRAN:

MAY I CHECK, PLEASE, COUNSEL?

12 MS. CLARK:

NO. MAY I MAKE AN OBJECTION, PLEASE, COUNSEL? UNDER 356, I THINK IT ALL OUGHT TO BE SHOWN INSTEAD OF HAVING PORTIONS CUT OUT SO THAT THE JURY GETS A MORE COMPLETE PICTURE. IT'S STILL DISTORTED. AND UNDER 352, EVEN THOUGH -- YOU KNOW, I MEAN, YES, THERE'S A WEIGHT AND ADMISSIBILITY ISSUE, BUT THERE COMES A POINT AFTER WHICH IT'S SIMPLY MISLEADING. AND THIS --

13 THE COURT:

WHAT IS MISLEADING ABOUT THE VIDEOTAPE?

14 MS. CLARK:

FIRST OF ALL, WE HAVE -- AS YOU'VE NOTED, YOUR HONOR, ALREADY, CLIPS PASTED TOGETHER. IT'S ALSO TAKEN FROM AN ANGLE THAT COMPLETELY LEAVES OUT THE DEPTH AND IT'S INCOMPLETE BECAUSE YOU CAN'T SEE WHERE THE PEOPLE ARE STANDING OR THE SURFACE ON WHICH THEY'RE STANDING. ALL THAT'S GOING TO HAPPEN IS, THE JURY IS GOING TO BE MISLED INTO BELIEVE THEY'RE STANDING ON BLOODY AREAS OR CONTAMINATING EVIDENCE WHEN THEY'RE PROBABLY NOT BECAUSE THE LACK OF DEPTH IN THIS PHOTOGRAPH, BECAUSE IT IS DISTORTED, BECAUSE IT IS DONE OBVIOUSLY FROM A DISTANCE WITH A ZOOM LENS, MISLEADS THE JURY COMPLETELY. UNDER 352, YOU HAVE A SITUATION WHERE THE PICTURE NOT ONLY DOES NOT SPEAK FOR ITSELF, BUT SPEAKS TO A SET OF EVENTS THAT ARE VERY DIFFERENT FROM WHAT THE REALITY WAS SO YOU HAVE A MISPERCEPTION CREATED BY THE LACK OF DEPTH SHOW AND YOU HAVE CLIPS PASTED TOGETHER THAT LEAVE OUT SIGNIFICANT EVENTS THAT IS GOING TO GIVE A MISIMPRESSION TO THE JURY ABOUT WHAT WAS GOING ON THERE.

15 MR. COCHRAN:

YOUR HONOR, WITH REGARD TO THE --

16 THE COURT:

EXCUSE ME, MR. COCHRAN. LET ME JUST ASK A FEW QUESTIONS OF COUNSEL. THE CLIPS -- YOU'RE RIGHT. THE CAMERA SEEMS TO MOVE SEVERAL TIMES. IT SEEMS TO BE FROM DIFFERENT LOCATIONS AND/OR ZOOMS AND THEN OBVIOUSLY IT'S DIFFERENT IN TIME BECAUSE THERE'S A DIFFERENCE IN WHERE CARS ARE PARKED. I MEAN I CAN SENSE THAT. BUT IS WHAT IS ACTUALLY DEPICTED -- MY RECOLLECTION OF WHAT WAS JUST SHOWN TO IS, AS MR. COCHRAN WAS CONCENTRATING ON THREE SPECIFIC TIMES, THE ARRIVAL OF THE CORONER'S PERSONNEL, HE WAS CONCENTRATING ON THE REMOVAL OF THE BODY OF NICOLE BROWN SIMPSON AND THEN THE REMOVAL OF THE BODY OF OR THE MOVING OF THE BODY, REMOVAL OF RONALD GOLDMAN.

17 MS. CLARK:

AND THE PEOPLE'S POINT IS MULTIPLE WITH RESPECT TO THAT, YOUR HONOR. WE'VE ALREADY HAD --

18 THE COURT:

NO. LET ME -- LET'S JUST FLUSH OUT THE CLIPS ON THE 356 ISSUE. YOU'RE SAYING THAT YOU OBJECT THAT IT'S JUST CLIPS PUT TOGETHER AND YOU WOULD WANT THE WHOLE VIDEOTAPE PLAYED UNDER 356? THAT'S ONE OBJECTION THAT YOU'RE MAKING?

19 MS. CLARK:

ONE OBJECTION I'M MAKING IF THE COURT DEEMS THIS TO BE ADMISSIBLE DESPITE PEOPLE'S OTHER OBJECTIONS TO IT. THAT AT LEAST THE ENTIRE CLIP BE SHOWN SO THAT EVERYTHING IS PLACED IN CONTEXT.

20 THE COURT:

THAT WOULD MAKE IT THE ENTIRE SHOT, NOT THE ENTIRE CLIP.

21 MS. CLARK:

YES.

22 THE COURT:

ALL RIGHT. IS THAT AVAILABLE, THE ENTIRE VIDEO?

23 MR. COCHRAN:

YES. YOU MEAN WHAT YOU JUST SAW THERE? YEAH. WE'LL SHOW YOU WHATEVER WE GOT. YOU WANT THE INTERVIEWS AND EVERYTHING?

24 THE COURT:

NO. I'M ASKING, IS THE VIDEOTAPE -- IS THERE A CONTINUOUS VIDEOTAPE OR JUST START AND STOP? DOES THE CAMERA PERSON START AND STOP THE VIDEO?

25 MR. BLASIER:

THIS IS THE VIDEO THAT WE HAD, YOUR HONOR.

26 MR. COCHRAN:

THIS IS ONE SOURCE. ONE SOURCE, ONE VIDEO, WHICH YOU'VE JUST SEEN, YOUR HONOR.

27 THE COURT:

IS THERE ANYTHING LEFT OUT THAT'S BEEN EDITED?

28 MR. COCHRAN:

NO.

29 MS. CLARK:

IT'S OBVIOUSLY BEEN EDITED. THE COURT CAN SEE THAT.

30 MR. COCHRAN:

THAT DOESN'T HELP US. SHE DOESN'T KNOW WHAT SHE'S TALKING ABOUT, YOUR HONOR. WE HAVE NO OBJECTION IF SHE WANTS TO SHOW THE ENTIRE THING.

31 THE COURT:

WELL, COUNSEL, COUNSEL, WHEN YOU VIDEO SOMETHING, WHEN YOU START AND STOP AND YOU ELECT NOT TO PHOTOGRAPH SOMETHING AND TO TAPE OTHER THINGS, THAT'S EDITING.

32 MR. COCHRAN:

YOUR HONOR, HOW IS THAT DIFFERENT FROM A PHOTOGRAPH --

33 THE COURT:

COUNSEL, I'M NOT HEARING FROM YOU YET, MR. COCHRAN. I'M JUST ASKING INFORMATIONAL QUESTIONS. WHAT I WANT TO HEAR FROM -- I'M TRYING TO FIGURE OUT WHAT THE OBJECTIONS ARE AT THIS POINT. ALL RIGHT. I ACCEPT THE REPRESENTATION THAT IT'S FROM ONE SOURCE AND THAT -- LET'S ASSUME THAT THE CAMERA PERSON SHOT AND THEN TURNED OFF AND SHOT SOME MORE AND MOVED AROUND DIFFERENT ANGLES, THAT SORT OF THING. ALL RIGHT. SO IF I OVERRULE YOUR OBJECTION, YOU'RE SAYING WE SHOULD WATCH THE WHOLE THING.

34 MS. CLARK:

YEAH. IF IT IS GOING TO BE SHOWN, THEN IT SHOULD ALL BE SHOWN.

35 THE COURT:

OKAY. NOW, WHAT'S YOUR OBJECTION --

36 MS. CLARK:

OBVIOUSLY NOT THE INTERVIEWS OF THE WITNESSES.

37 THE COURT:

ALL RIGHT. THEN --

38 MS. CLARK:

THE OTHER OBJECTION IS THAT EVEN IF WE DO -- THE PROBLEM WITH THE ENTIRE TAPE IS THAT WE HAVE A DISTORTION THAT IS UN -- IRREMEDIABLE. THE DISTORTION, IT OCCURRED BECAUSE WHOEVER IS SHOOTING IT IS SHOOTING IT FROM AN OBVIOUS DISTANCE AND DOING IT WITH A ZOOM LENS. WHAT THAT DOES IS, IT DEPRIVES THE VIEWER OF DEPTH. AND SO WHAT YOU HAVE IS PEOPLE LOOKING LIKE THEY'RE ON TOP OF EACH OTHER, AND THEY'RE NOT. IT'S A SMALL SPACE, BUT EVERYBODY IS IN A PARTICULAR PLACE AND IT IS VERY MISLEADING TO THE JURY, MAKING IT LOOK AS THOUGH THERE'S -- THERE'S A CROWDING CROWD IS EFFECT, THAT THERE WASN'T. IT'S ALSO MISLEADING TO THE JURY BECAUSE IT DOES NOT DEPICT ALL OF THE AREAS THAT WERE FREE OF BLOOD WHERE THE PEOPLE WERE STANDING. AND SO THE JURY IS LED TO BELIEVE BASED ON WHAT THEY SEE WITH THIS LACK OF DEPTH, WITH ITS LENS THAT THEY ARE STANDING IN BLOOD THAT THEY'RE NOT STANDING IN.

39 THE COURT:

BUT LET ME ASK YOU THIS THEN, MISS CLARK. HOW IS THE JURY GOING TO BE MISLED WHEN WE HAVE THE OVERVIEW PHOTOGRAPH OF THE STEPS WITH NICOLE BROWN SIMPSON AT THE BOTTOM OF THE STEPS, CORRECT? AND YOU CAN SEE THAT THERE'S AREAS ON THE STAIRWAY THAT IS NOT COVERED IN BLOOD. AND WE KNOW THE TESTIMONY FROM THE OFFICERS, THE FIRST OFFICERS AND DETECTIVE LANGE, THAT THEY DID IN FACT GO UP AND DOWN THAT STAIRWELL BEING CAREFUL NOT TO STEP ON THE BLOODY AREAS, CORRECT?

40 MS. CLARK:

THE PROBLEM IS THAT THOSE PHOTOGRAPHS ARE NOT EVIDENT IN THIS VIDEOTAPE, AND THIS VIDEOTAPE, THE WAY IT'S SHOT BECAUSE IT IS SHOT FROM A DISTANCE, MAKES IT APPEAR THAT -- YOU ALMOST CAN'T TELL THERE ARE STEPS IN THIS VIDEOTAPE. BUT THAT PHOTOGRAPH IS NOT PRESENT IN THIS VIDEOTAPE AND YOU CAN'T SEE WHERE THESE PEOPLE ARE STANDING. SO TO PUT THE PHOTOGRAPH -- IT'S IMPOSSIBLE TO PUT THE PHOTOGRAPH TOGETHER WITH THE VIDEOTAPE TO ALLOW THE JURY TO UNDERSTAND THAT WHERE THEY'RE STANDING IS NO BLOOD.

41 THE COURT:

MR. HARRIS, HOW LONG IS THE TAPE IN ITS ENTIRETY, ITS ENTIRE RUNNING TIME?

42 MR. HARRIS:

WE BELIEVE IT'S ABOUT A TOTAL OF 14, 15 MINUTES.

43 THE COURT:

ALL RIGHT. MR. COCHRAN, DO YOU HAVE ENOUGH TIME TO -- WHAT I AM GOING TO NEED TO DO IS SIT DOWN AND WATCH THIS THING IN ITS ENTIRETY AND CAREFULLY EVALUATE IT. I'VE SEEN THIS ONCE NOW.

44 MR. COCHRAN:

SURE. I HAVE ENOUGH, YOUR HONOR, I WOULD LIKE TO -- MAY I ADDRESS THIS?

45 THE COURT:

CERTAINLY.

46 MR. COCHRAN:

OKAY. THANK YOU, YOUR HONOR. ANY PHOTOGRAPH, YOUR HONOR, IS -- THERE'S A DEPTH PERCEPTION PROBLEM. THEY TALK ABOUT THIS EVEN IN THEIR OWN PHOTOGRAPHS. THE PICTURES THEY HAVE UP THERE OF THE BLOOD SPOT AND THE NEAREST FOOTPRINT, THERE'S A DEPTH PERCEPTION PROBLEM. THERE'S A DEPTH PERCEPTION PROBLEM WITH REGARD TO HOW THE BRONCO WAS PARKED. IT'S ALWAYS A PROBLEM. YOU DON'T HEAR US SCREENING AND MOANING ABOUT THAT. THE QUESTION IS, YOU CAN EXPLAIN THOSE THINGS. IT'S NOT GOING TO BE PERFECT, BUT THERE'S NOTHING BETTER THAN A VIDEO. WE DIDN'T TAKE THIS VIDEO. AND IF SHE WANTS TO SHOW THE WHOLE THING -- IT WAS THROUGH SENSITIVITY THAT WE DIDN'T WANT TO SHOW THE WHOLE THING BECAUSE I DIDN'T NEED TO SHOW THE BODIES BEING DRUG OUT OF THERE AND THAT SORT OF THING. SO THAT'S THE PART I WANTED TO CUT OUT. I HAVE ABSOLUTELY NO PROBLEM WITH YOUR HONOR DOING THAT. WHAT I DO BELIEVE IS THAT WE'VE BEEN TALKING ABOUT THIS FOR A LONG TIME NOW. SO IF THERE'S A LEVEL OF FRUSTRATION EVIDENT, IT'S BECAUSE WE'VE BEEN SHOWING THIS FROM THE VERY BEGINNING. IT IS ADMISSIBLE. WHAT COUNSEL IS TALKING ABOUT GOES TO WEIGHT. IT'S HER WITNESS ON THE STAND. HE'S PERFECTLY CAPABLE OF TALKING ABOUT THIS. YOU KNOW THE THREE OR FOUR AREAS I WANT TO GET INTO, AND I THINK WE NEED TO RESOLVE THIS AT SOME POINT. BUT I CAN PROCEED ON WITH CROSS-EXAMINATION. I HAD HOPED TO, SINCE HE IS ON THE STAND, TO DO THIS TOWARDS THE END OF MY EXAMINATION TODAY. AS I SAID, I AM WILLING TO CUT OUT CERTAIN PORTIONS, BUT WHATEVER YOUR HONOR'S PLEASURE IS.

47 THE COURT:

WELL, MR. COCHRAN, I DON'T SEE THAT YOU'RE READY TO GO FORWARD WITH THIS TODAY BECAUSE TO HAVE TO THEN FAST FORWARD FOR THIS STUFF AND LOOK THROUGH IT, IT'S GOING TO BE DISJOINTED AND THINGS WILL BE PRESENTED TO THE JURY THAT PERHAPS THEY OUGHT NOT SEE. WHAT I WOULD SUGGEST WE DO -- WHAT I WOULD SUGGEST WE DO IS ALLOW THE COURT TO CAREFULLY REVIEW THE TAPE, AND OVER THE EVENING, YOU SHOULD PREPARE AN EXCERPT OF EACH CRITICAL SCENE THAT YOU WISH TO PRESENT.

48 MR. COCHRAN:

ALL RIGHT. WHY DON'T WE -- THAT WILL BE FINE, YOUR HONOR. WHY DON'T YOU REVIEW IT. NOW, YOU MAY DISAGREE WITH THE -- WHAT WE COME UP WITH. HOW WILL WE DO THAT? LET'S SEE. I CAN DO THAT WITH THE AREAS WE'VE TALKED ABOUT.

49 THE COURT:

ALL RIGHT. WE'VE TALKED ABOUT THREE AREAS AT THIS POINT.

50 MR. COCHRAN:

YES. AND WE CAN DO THAT AND LOOK AT THOSE. AND IF THERE ARE ANY OTHERS, I'LL LEAVE THOSE IN AND WE CAN TRY TO DO THAT --

51 THE COURT:

WELL, IF YOU RECALL, TOMORROW MORNING, AS I TOLD YOU, WE'RE GOING TO START WITH THE JURY AT 11:00 TOMORROW. WE HAVE THAT OTHER IN CHAMBERS CONFERENCE AT 10:00. SO WHY DON'T WE RESOLVE THIS MATTER SAY AT 9:30.

52 MR. COCHRAN:

THAT'S FINE.

53 THE COURT:

ALL RIGHT.

54 MR. COCHRAN:

THAT WILL BE FINE, YOUR HONOR. WE'LL TRY TO COME WITH A PARED-DOWN VERSION.

55 THE COURT:

I AM SORRY. MISS CLARK.

Temperature

tense

Key Quotes (5)

Marcia Clark
WHAT THAT DOES IS, IT DEPRIVES THE VIEWER OF DEPTH. AND SO WHAT YOU HAVE IS PEOPLE LOOKING LIKE THEY'RE ON TOP OF EACH OTHER, AND THEY'RE NOT.
Core argument against the videotape — that its zoom lens creates a false visual impression that cannot be corrected by instruction
Marcia Clark
THE JURY IS LED TO BELIEVE BASED ON WHAT THEY SEE WITH THIS LACK OF DEPTH, WITH ITS LENS THAT THEY ARE STANDING IN BLOOD THAT THEY'RE NOT STANDING IN.
Ties the distortion argument directly to the defense's contamination narrative — the tape would undercut police credibility unfairly
Lance A. Ito
WHEN YOU VIDEO SOMETHING, WHEN YOU START AND STOP AND YOU ELECT NOT TO PHOTOGRAPH SOMETHING AND TO TAPE OTHER THINGS, THAT'S EDITING.
Judge rejects Cochran's claim that the tape is unedited, clarifying the legal definition of editing
Johnnie Cochran
IT WAS THROUGH SENSITIVITY THAT WE DIDN'T WANT TO SHOW THE WHOLE THING BECAUSE I DIDN'T NEED TO SHOW THE BODIES BEING DRUG OUT OF THERE AND THAT SORT OF THING.
Reveals the strategic and humanitarian reason defense proposed excerpts — and opens the door to Clark demanding the full tape under Evidence Code 356
Johnnie Cochran
ANY PHOTOGRAPH, YOUR HONOR, IS -- THERE'S A DEPTH PERCEPTION PROBLEM. THEY TALK ABOUT THIS EVEN IN THEIR OWN PHOTOGRAPHS.
Cochran's tu quoque rebuttal — arguing prosecution's own photos suffer the same alleged distortion problem

Evidence (2)

Informal
News media videotape (~14-15 minutes) of Bundy crime scene showing coroner arrival, removal of Nicole Brown Simpson's body, and movement of Ronald Goldman's body
admissibility contested; Ito defers ruling pending overnight review
Informal
Overview photograph of the steps with Nicole Brown Simpson at the bottom, showing non-bloody areas of the stairway
referenced by Ito to counter Clark's contamination argument

Notable Exchanges (3)

Johnnie CochranMarcia Clark
Cochran claims the tape has not been edited; Clark flatly contradicts him ('It's obviously been edited. The court can see that'); Cochran retorts 'She doesn't know what she's talking about, your honor.'
heated
Lance A. ItoJohnnie Cochran
Ito corrects Cochran's definition of 'editing,' explaining that a camera operator starting and stopping constitutes editing — cutting off Cochran's attempt to respond.
instructive
Lance A. ItoMarcia Clark
Ito pushes back on Clark's misleading-jury argument by noting the overview photographs and officer testimony already established investigators avoided bloody areas — implicitly questioning how much prejudice the tape adds.
probing

Objections

4 objections (0 sustained, 0 overruled)
Proceeding 4974 • 55 utterances
Criminal Trial
Department 103
⚖️ Start
📂 FEB 22, 1995 📄 Motion: videotape admissibilit
FEB 22, 1995 KRT DvH TD