Sidebar: lividity evidence

📄 Sidebar: lividity evidence — Wednesday, February 22, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\22\SIDEBAR-LIVIDITY-EVIDENCE.DOC

TRIAL

▲ Day 23 of 167

◀ Cross-examination of Detective Tom Lange (afternoon, part 2) Cross-examination of Detective Tom Lange (afternoon, part 3) ▶

Date: Wednesday, February 22, 1995 • Utterances: 20

A sidebar erupts when Marcia Clark objects to Cochran's attempt to use a coroner's investigator's report to refresh the witness's recollection about lividity. Clark argues it constitutes improper impeachment and hearsay; Cochran maintains he is only seeking to refresh recollection about whether lividity was fully fixed in both victims. Judge Ito allows the approach but rules the objection premature, and separately requires a clean (unhighlighted) copy of the document be used.

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

# 2 THE COURT:

ALL RIGHT. WE ARE AT THE SIDEBAR. MISS CLARK, WHAT'S THE OBJECTION?

# 3 MS. CLARK:

COUNSEL IS ATTEMPTING TO IMPEACH --

# 4 MR. COCHRAN:

NOT IMPEACH.

# 5 MS. CLARK:

HOLD IT.

# 6 MR. COCHRAN:

I WILL TELL YOU WHAT I'M TRYING TO DO.

# 7 MS. CLARK:

YOU'RE NOT TRYING TO IMPEACH THE OBSERVATIONS OF ONE WITNESS WITH THE OBSERVATIONS OF ANOTHER THROUGH A HEARSAY DOCUMENT? HE'S GOING TO ASK HIM TO REFRESH HIS RECOLLECTION ABOUT LAVIDITY, SHOW HIM THE REPORT OF A CORONER'S INVESTIGATOR WHO MADE HIS OWN OBSERVATION. IT'S IMPROPER IMPEACHMENT. IT'S HEARSAY.

KEY QUOTE

# 8 MR. COCHRAN:

MAY I BE HEARD? ALL I AM SEEKING TO DO, AS YOU SAID ON A NUMBER OF OCCASIONS, IS ASK HIM IF IT REFRESHES HIS RECOLLECTION. HE'S BEEN SOMEWHAT EQUIVOCATING REGARDING LAVIDITY. THERE'S LAVIDITY. THEY KNOW THAT, I KNOW THAT, EVERYBODY KNOWS THAT. I'M JUST GOING TO ASK HIM WHETHER THIS REFRESHES HIS RECOLLECTION THAT LAVIDITY WAS PRESENT AND FIXED, FULLY ESTABLISHED AND I THINK AS TO BOTH VICTIMS AND I JUST WANT TO ASK HIM THAT QUESTION. THAT'S ALL. I AM PERMITTED TO DO THAT. I DON'T KNOW WHY WE HAVE TO RACE UP HERE EVERY FEW SECONDS, BUT THAT'S THE SITUATION. I JUST WANT TO REFRESH HIS RECOLLECTION.

# 9 THE COURT:

YOU CAN SEE IF IT REFRESHES HIS RECOLLECTION, BUT HE'S ALREADY TESTIFIED HE DIDN'T SEE ANY AND THAT RONALD GOLDMAN, HE MAY NOT HAVE BEEN IN A POSITION TO SEE IT. BUT YOU CAN ASK HIM.

# 10 MR. COCHRAN:

THAT'S ALL I WANT TO DO.

# 11 MS. CLARK:

CAN I ASK COUNSEL WHY IT'S HIGHLIGHTED?

# 12 MR. COCHRAN:

SOMEONE ELSE HIGHLIGHTED IT.

# 13 MS. CLARK:

Temperature

tense

Key Quotes (4)

Marcia Clark

YOU'RE NOT TRYING TO IMPEACH THE OBSERVATIONS OF ONE WITNESS WITH THE OBSERVATIONS OF ANOTHER THROUGH A HEARSAY DOCUMENT? HE'S GOING TO ASK HIM TO REFRESH HIS RECOLLECTION ABOUT LAVIDITY, SHOW HIM THE REPORT OF A CORONER'S INVESTIGATOR WHO MADE HIS OWN OBSERVATION. IT'S IMPROPER IMPEACHMENT. IT'S HEARSAY.

Articulates the prosecution's dual objection — that using one coroner's observations to undercut another's is both impeachment by hearsay and procedurally improper.

Johnnie Cochran

HE'S BEEN SOMEWHAT EQUIVOCATING REGARDING LAVIDITY. THERE'S LAVIDITY. THEY KNOW THAT, I KNOW THAT, EVERYBODY KNOWS THAT. I'M JUST GOING TO ASK HIM WHETHER THIS REFRESHES HIS RECOLLECTION THAT LAVIDITY WAS PRESENT AND FIXED, FULLY ESTABLISHED.

Reveals the defense's theory that lividity was fully fixed — a fact with direct implications for time of death and Simpson's timeline.

Johnnie Cochran

I DON'T KNOW WHY WE HAVE TO RACE UP HERE EVERY FEW SECONDS, BUT THAT'S THE SITUATION.

Expresses frustration at the frequency of sidebar interruptions during his cross-examination.

Johnnie Cochran

I'M UP HERE IN THE MIDDLE OF MY EXAMINATION. I CAN'T DO EVERYTHING. I'D LIKE TO GET MY ERASER OUT --

Sardonic aside about the highlighted document issue, cut off by the judge's ruling.

Evidence (1)

Informal

Report of a coroner's investigator containing observations about lividity in the victims

Cochran sought to use it to refresh witness's recollection; judge required a clean (unhighlighted) copy; objection ruled premature

Notable Exchanges (2)

Marcia Clark•Johnnie Cochran

Clark interrogates why the document is highlighted on the top line; Cochran says it was handed to him that way. Clark counters it was marked as an exhibit, implying it shouldn't have highlighting.

strategic

Lance A. Ito•Johnnie Cochran

Judge notes the witness already testified he didn't observe lividity on Ronald Goldman, possibly because of his position, but allows Cochran to ask anyway.

procedural

Light Moments (1)

Johnnie Cochran

Cochran quips mid-ruling that he'd like to get his eraser out to fix the highlighted document but is stuck at the bench during his examination.

Credibility Attacks (1)

⚔ prosecution medical witness (unnamed in transcript)

prior inconsistent statement / refresh recollection

Cochran characterized the witness as 'equivocating' on lividity and sought to use a coroner's investigator's report to nail down that lividity was present, fixed, and fully established in both victims.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 4935 • 20 utterances

Criminal Trial

Department 103