BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT WITH HIS COUNSEL, MR. SHAPIRO, MR. DOUGLAS, MR. BAILEY. I DON'T SEE MR. COCHRAN.

WE CAN PROCEED THOUGH, YOUR HONOR.

ALL RIGHT. THE PEOPLE ARE REPRESENTED BY MR. DARDEN, MISS LEWIS, MR. GORDON. ALL RIGHT. WE HAVE TWO MATTERS ON THE CALENDAR THIS MORNING. FIRST WE HAVE A MOTION BY THE PROSECUTION ASKING FOR THE COURT TO DIRECT OR TO ALLOW A 402 HEARING REGARDING ANY IMPEACHMENT EVIDENCE THAT WILL BE PRESENTED WITH REGARD TO WITNESS MARK FUHRMAN. WHO WISHES TO ADDRESS THAT MOTION ON BEHALF OF THE PEOPLE?

I WILL, YOUR HONOR.

ALL RIGHT. GOOD MORNING, MISS LEWIS.

GOOD MORNING, YOUR HONOR. YOUR HONOR, BACK IN JANUARY THE COURT RULED ON THE PEOPLE'S MOTION IN LIMINE WITH REGARD TO THREE ALLEGED INCIDENTS IN DETECTIVE FUHRMAN'S PAST. OF THOSE THREE INCIDENTS THE COURT EXCLUDED TWO AND RULED THAT THE DEFENSE COULD INDEED CROSS-EXAMINE WITH REGARD TO THE KATHLEEN BELL ALLEGATIONS. THE COURT, IT WAS MY IMPRESSION, BASED ON BOTH YOUR WRITTEN RULING AS WELL AS YOUR COMMENTS, YOUR HONOR, THAT YOU WERE RULING IN THAT REGARD BASED ON SEVERAL THINGS: ONE OF THOSE THINGS THAT SEEMED TO WEIGH PREDOMINANTLY IS THAT THERE WERE SOME CIRCUMSTANCES OF DETECTIVE FUHRMAN'S INVOLVEMENT OR CONTACT, I SHOULD SAY, WITH THE DEFENDANT AND THE VICTIM IN THIS CASE, WHICH SEEMED TO CAUSE THE COURT TO FEEL THAT THAT WAS RELEVANT. I WANT TO JUST BRIEFLY ADDRESS THAT, BECAUSE I DID NOT DO SO BEFORE AND I DID NOT HAVE AN OPPORTUNITY BEFORE NOW. FIRST, THE COURT NOTED THAT DETECTIVE FUHRMAN, WHEN HE WAS A PATROL OFFICER, DID RESPOND TO THE SCENE OF A DOMESTIC VIOLENCE DISPUTE BETWEEN THE TWO BACK IN 1985. THE COURT ALSO NOTED THAT DETECTIVE FUHRMAN CHRONICLED THAT VISIT IN '89, WHEN CALLED UPON TO DO SO BY THE CITY ATTORNEY'S OFFICE, AND THE COURT FURTHER NOTED THAT DETECTIVE FUHRMAN RESPONDED TO THE SCENE OF THE HOMICIDE THAT HAPPENED ON JUNE 12 WITH REGARD TO THE SAME VICTIM. I WANT TO MAKE THE POINT, YOUR HONOR, THAT IT IS NOT UNUSUAL. IN FACT, IT IS HIGHLY COMMON FOR PATROL OFFICERS WITHIN THIS CITY IN EACH AREA TO RESPOND ON MULTIPLE OCCASIONS TO THE SAME LOCATION FOR REPEAT INCIDENTS OF DOMESTIC VIOLENCE BETWEEN THE SAME COUPLE, SO THAT IS NOT SOMETHING THAT IS AT ALL UNUSUAL. IN FACT, IT IS MORE THE USUAL. AND I KNOW THE COURT HAS SEEN CASES -- I HAVE CERTAINLY HANDLED CASES WHERE THE OFFICERS HAD TOLD ME THAT THIS WAS NOT THE FIRST TIME THEY RESPONDED TO THAT PARTICULAR SCENE. IN ADDITION, YOUR HONOR, THE FACT THAT DETECTIVE FUHRMAN RESPONDED AS A HOMICIDE DETECTIVE IN 1994 IS NOT OF ANY MOMENT EITHER WHEN ONE CONSIDERS THAT THE HOMICIDE UNIT AT WEST L.A. CONSISTS OF ONLY FOUR HOMICIDE DETECTIVES, ALL OF WHOM RESPOND TO EVERY HOMICIDE. THERE WERE ONLY 14 TOTAL HOMICIDES IN WEST L.A. DIVISION LAST YEAR, SO THAT THERE IS NOT THE GREATER AMOUNT OF DETECTIVES AS IS PRESENT IN OTHER PARTS OF THE CITY. SO THE FACT THAT DETECTIVE FUHRMAN RESPONDED TO THE HOMICIDE SCENE IS OF NO MOMENT BECAUSE EVERYONE WHO WORKED HOMICIDE, EVERY DETECTIVE RESPONDED TO THAT SCENE LAST JUNE.

THE OTHER POINT I WANT TO MAKE, YOUR HONOR, IN ADDITION TO MAKING THE POINT THAT IT IS VERY COMMON FOR OFFICERS TO RESPOND TO THE SAME SCENE ON MULTIPLE OCCASIONS, IS THAT DETECTIVE FUHRMAN DID NOT ACT AFFIRMATIVELY IN ANY OF THOSE CONTACTS, EITHER OF THOSE TWO CONTACTS, OR IN THE REQUEST FROM THE CITY ATTORNEY'S OFFICE. IN 1985 HE WAS RESPONDING TO A RADIO CALL. IN 1989 HE WAS RESPONDING TO A REQUEST BY THE CITY ATTORNEY'S OFFICE AND IN -- ONLY WITH REGARD TO THE 1985 INCIDENT, THAT WASN'T EVEN A CONTACT BETWEEN THE DEFENDANT AND THE VICTIM. AND IN 1994 HE WAS RESPONDING TO A SUPERVISOR'S CALL, DETECTIVE PHILLIPS, TO GO OUT TO THE SCENE. SO WE DON'T HAVE A SITUATION WHERE -- AND EVEN IF WE HAD A SITUATION WHERE -- THAT I AM ABOUT TO DESCRIBE IN A MOMENT, IT WOULD BE COMMENDABLE, BUT WE DON'T HAVE THAT HERE. WE DON'T HAVE THE SITUATION WHERE WE HAVE PATROL OFFICERS WHO ARE AWARE OF A PARTICULAR HOUSEHOLD HAVING THIS KIND OF PROBLEM AND GO ON THEIR OWN VOLITION TO TRY AND KEEP THINGS CALM TO PREVENT FUTURE VIOLENCE. SO IN THIS INSTANCE WE HAVE THOSE COUPLE OF CURSORY CONTACTS OR THE ONE IN 1985 WHICH WAS RATHER CURSORY, THE 1989 WHICH WAS NOT EVEN A CONTACT, AND THEN THE 1994. AND THE PROBATIVE VALUE AND RELEVANCE OF THOSE PUT TOGETHER IS SIMPLY VERY, VERY SLIGHT. NOW, AGAINST THAT BACKDROP, YOUR HONOR, THE PEOPLE ARE MOVING BY THIS MOTION, IT IS OUR ATTEMPT TO PROVIDE A VEHICLE TO THE COURT FOR THE COURT TO PRESERVE THE INTEGRITY OF THIS TRIAL. WE ARE ASKING THAT THE PEOPLE BE ALLOWED AN OPPORTUNITY TO RESPOND, TO BE HEARD IN A 402 HEARING BEFORE WHOEVER IS GOING TO BE CROSS-EXAMINING DETECTIVE FUHRMAN COMES OUT WITH RACIALLY BLASPHEMOUS TYPES OF ALLEGATIONS. THE -- NOW, IT IS TRUE, YOUR HONOR, THAT AS THE COURT I'M SURE HAS PROBABLY INSTRUCTED THIS JURY, THOUGH I HAVEN'T SEEN IT YET, QUESTIONS ASKED BY LAWYERS ARE NOT EVIDENCE AND THE JURORS ARE SUPPOSED TO DISREGARD ANY QUESTIONS ASKED BY A LAWYER WHEN THE OBJECTION TO THAT QUESTION IS SUSTAINED. BUT IN THIS SITUATION, YOUR HONOR, WE ARE NOT TALKING ABOUT THE VAST MAJORITY OF TYPES OF QUESTIONS WHICH ARE ASKED OF A WITNESS. WE ARE NOT -- THE VAST MAJORITY OF THOSE QUESTIONS ARE SIMPLY QUESTIONS THAT HAVE TO DO WITH THE TESTIMONY OF THAT WITNESS OR OTHER WITNESSES OR OF EVIDENCE IN THE CASE. THEY ARE NOT QUESTIONS WHICH CARRY WITH THEM AN ASSUMPTION THAT JURORS ARE LIKELY TO TAKE PERSONALLY OR HAVE THE POTENTIAL FOR JURORS TO BE PERSONALLY HIGHLY OFFENDED BY. AND THAT IS WHAT MAKES THIS PARTICULAR TYPE OF QUESTIONING PARTICULARLY VOLATILE AND EMOTIONAL. NOW, IT DOES NOT MEAN BECAUSE JURORS HEAR THIS KIND OF QUESTIONING THAT THEY ARE GOING TO GO OFF THE DEEP END. IT DOES MEAN THAT THEY WILL HAVE PLANTED A CLOUD AND A BITTER TASTE IN THEIR MOUTH WITH REGARD TO THIS WITNESS, BECAUSE FRANKLY, THE ALLEGATION OF RACISM IS ONE OF THE MOST ABHORRENT THINGS THAT ANYONE CAN SAY ABOUT SOMEONE AND IT WILL CAUSE THESE JURORS TO REMEMBER THIS AND WILL CLOUD THEIR PERCEPTION OF THIS WITNESS. AND ALL WE ARE BASICALLY ASKING FOR IS FOR AN OPPORTUNITY FOR THE COURT TO DECIDE, NOT THE DEFENSE ATTORNEY, BUT FOR THE COURT TO DECIDE WHETHER OR NOT AN AREA IS APPROPRIATE TO GO INTO.

HOW WOULD YOU PROPOSE TO DO THAT?

WELL, THE MOST REASONED AND ORDERLY METHOD OF DOING THAT WOULD BE TO HAVE THE DEFENSE DISCLOSE WHAT IT IS THEY PLAN TO CROSS-EXAMINE DETECTIVE FUHRMAN ABOUT, WHAT INCIDENTS. I'M SURE THEY KNOW.

AT WHAT POINT?

WELL, WE COULD DO THAT SOON. WE COULD SET THAT FOR A SPECIAL HEARING WELL IN ADVANCE OF DETECTIVE FUHRMAN'S TESTIMONY AND THAT WOULD BE THE MOST ORDERLY AND EXPEDITIOUS MANNER OF DOING IT. IT ALLOWS THE COURT, AS WELL AS COUNSEL, AN OPPORTUNITY TO REFLECT AND THINK IT OVER.

YOUR HONOR --

WHICH IS ONE OF THE FUN PARTS OF CROSS-EXAMINATION.

WELL, MISS CLARK MAKES THE EXCELLENT POINT THAT IT IS ONLY WITH RESPECT TO RACIAL ALLEGATIONS THAT WE ARE MAKING THIS REQUEST AND IT IS IN THE EXTRAORDINARY CIRCUMSTANCES OF THIS CASE WHERE THIS POLICE OFFICER HAS BEEN CASTIGATED IN THE PRESS AS BEING A RACIST. AND MUCH OF THAT OCCURRED, SOME OF THAT OCCURRED WELL BEFORE THIS JURY WAS SEQUESTERED. WE ARE IN A HIGHLY EXTRAORDINARILY UNUSUAL SITUATION WITH REGARD TO THE ALLEGATIONS BROUGHT AGAINST THIS POLICE OFFICER, GIVEN THE NOTORIETY OF THIS CASE AND THE WAY THAT THE ALLEGATIONS HAVE BEEN CONTINUED TO BE SET FORTH AND SPAWNED BY THE DEFENSE AND THE MEDIA. SO WE ARE IN A VERY UNIQUE SITUATION WITH REGARD TO THESE PARTICULAR TYPES OF ALLEGATIONS AGAINST DETECTIVE FUHRMAN. CERTAINLY IF THEY HAVE OTHER IMPEACHMENT AVAILABLE TO THEM, THERE IS NO REASON WHY THEY CAN'T BE HANDLED IN THE NORMAL MANNER THAT WE ARE ALL ACCUSTOMED TO HERE IN THE CRIMINAL JUSTICE SYSTEM, BUT THERE HAS TO BE SOME ORDERLY NECESSITY IMPOSED UPON THIS TRIAL, YOUR HONOR, IN THAT REGARD. THE COURT'S RULINGS WITH REGARD TO DETECTIVE FUHRMAN ARE GOING TO BE WATCHED BY THE WORLD BECAUSE THE WORLD IS GOING TO BE WATCHING HIS TESTIMONY. AND YOUR RULINGS, YOUR HONOR, ARE GOING TO HAVE A SIGNIFICANT EFFECT UPON THE PUBLIC PERCEPTION OF HOW WITNESSES ARE TREATED IN THE CRIMINAL JUSTICE SYSTEM. I WANT TO MAKE SURE, YOUR HONOR, THAT YOUR HONOR HAS AN OPPORTUNITY TO MAKE SURE THAT THIS TRIAL DOESN'T CONTINUE TO GO FORTH IN A MANNER THAT REFLECTS INTEGRITY AND A SEARCH FOR THE TRUTH AND NOT SOME KIND OF GAMESMANSHIP OR CHARACTER ASSASSINATION ON THE PART OF THE DEFENSE FOR THE WITNESSES WHO TESTIFY.

MISS LEWIS, LET ME ASK YOU THIS: LET'S ASSUME THAT I VIEW YOUR REQUEST AS BEING EXTRAORDINARY TO HAVE A 402 HEARING REGARDING IMPEACHMENT EVIDENCE SO FAR IN ADVANCE. WHAT OTHER VEHICLE WOULD YOU RECOMMEND TO THE COURT, ASSUMING THAT I FEEL THAT A SPECIAL HEARING FOR THAT PURPOSE IS NOT APPROPRIATE AT THIS POINT?

YOUR HONOR, CERTAINLY THE COURT COULD ORDER COUNSEL TO APPROACH OUTSIDE OF THE JURY'S PRESENCE, IF IT IS DURING THE EXAMINATION, OR IT COULD BE RIGHT BEFORE DETECTIVE FUHRMAN TESTIFIES AT ALL, BUT AT THE LATEST POSSIBLE OPPORTUNITY IF THE COURT IS CONCERNED IN THAT REGARD. CERTAINLY TO APPROACH BEFORE ACTUALLY ASKING THE QUESTION, THAT --

BUT UNDER MOST -- UNDER THE NORMAL DISCOVERY ISN'T IT REQUIRED THAT THE DEFENSE PROVIDE YOU, AT THE TIME OF CROSS-EXAMINATION, WITH ANY REPORTS OR STATEMENTS THAT THEY INTEND ON CROSS-EXAMINING ON? ISN'T THAT REQUIRED UNDER THE LAWS OF DISCOVERY?

YES. AS A MATTER OF FACT, THE COURT --

ALL RIGHT. SO ARE YOU THEN PUT ON NOTICE AS TO WHAT IT IS THE DEFENSE IS GOING TO CROSS-EXAMINE ON?

YOUR HONOR, MY UNDERSTANDING OF THE LAW IS THAT ONE HAS TO HAVE A GOOD FAITH BELIEF THAT FACTS EXIST PRIOR TO CROSS-EXAMINING SOMEONE ABOUT IT. THAT CAN BE DONE WITHOUT ACTUALLY HAVING A REPORT IN HAND, SO I DON'T FEEL AT ALL CONFIDENT THAT WE WILL RECEIVE REPORTS THAT REFLECT EVERYTHING THAT THE DEFENSE INTENDS TO CROSS-EXAMINE ABOUT.

UH-HUH.

IN ADDITION, IT IS OUR POSITION, HAVING STUDIED THE LITTLE LAW AVAILABLE IN THIS PARTICULAR AREA UNDER PROP 115, THAT IMPEACHING STATEMENTS OF THE WITNESS, PER SE, ARE NOT NECESSARILY DISCOVERABLE. THERE SEEMS TO BE, IF YOU LOOK AT IZIAGA IN COMBINATION WITH THE CODE ITSELF, THERE SEEMS TO BE AND DISTINCTION BETWEEN IMPEACHING STATEMENTS OF A WITNESS HIM OR HERSELF AND REBUTTAL WITNESSES THAT WOULD BE CALLED TO IMPEACH. IN ADDITION, YOUR HONOR, THE COURT IS APPARENTLY TREATING THIS AS A DISCOVERY ISSUE AND I DON'T THINK IT CAN BE TREATED AS SUCH. THAT MAY BE ONE ASPECT TO IT, BUT OUR CONCERN IS REALLY UNDER 352 OF THE EVIDENCE CODE AND THAT IS WHAT WE ARE TRYING TO ADDRESS WITH THIS MOTION AND THAT IS WHAT WE WANT THE COURT -- HOW WE WANT THE COURT TO ADDRESS IT IN ANY SUBSEQUENT RULINGS, IF THE COURT IS INCLINED TO DO AS WE ARE ASKING OF IT. MAY I CONTINUE FOR A MOMENT?

PLEASE.

YOUR HONOR, I DO WANT TO POINT OUT AN ADDITIONAL CASE. I DID CITE A LOT OF LAW OF COURSE IN OUR BRIEF HAVING TO DO WITH COLLATERAL IMPEACHMENT, AND AMONG OTHER THINGS THIS IS AN AREA OF COLLATERAL IMPEACHMENT. THIS DOES NOT DIRECTLY IMPEACH THE OFFICER'S OBSERVATIONS OR TESTIMONY.

IT IS ONLY BY WAY OF A CIRCUITOUS ROUTE IN TERMS OF CREDIBILITY AND THE COURT DOES HAVE BROAD DISCRETION AND WIDE LATITUDE IN CURTAILING THIS TYPE OF CROSS-EXAMINATION WITHOUT ANY VIOLATION TO THE DEFENDANT'S CONFRONTATION RIGHTS. ONE OF THE ADDITIONAL CASES THAT I PROVIDED THE COURT WITH WAS THE SCHILLING CASE TOWARD THE END OF OUR BRIEF AND THAT WAS A SECOND DISTRICT CASE WHICH MADE REFERENCE TO THE ANTHONY P. CASE INDICATING THAT WHILE THERE IS A CERTAIN LATITUDE IN CROSS-EXAMINATION OF A WITNESS, THE CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES DOES NOT INCLUDE THE RIGHT TO ASK WHOLLY SPECULATIVE QUESTIONS UNGROUNDED IN FACTUAL PREDICATE, EVEN WHEN POSED IN THE QUEST TO DISCREDIT A WITNESS. THAT IS WHAT THE COURT SCHILLING COURT HELD AND IT PREVENTED IN THAT CASE THE DEFENSE FROM PURSUING A LINE OF QUESTIONING HAVING TO DO WITH THE MOTIVE OF A WITNESS TO HAVE COMMITTED THE CRIME ITSELF. THE ALLEGATION FROM THE DEFENSE THERE WAS THAT THE WITNESS ACTUALLY COMMITTED THE KILLING OR KILLED THE VICTIM WHO HAPPENED TO BE THE WITNESS' GIRLFRIEND AND NOT THE DEFENDANT, SO THE DEFENSE THOUGHT THEY SHOULD BE ABLE TO PURSUE A LINE OF QUESTIONING TALKING ABOUT THAT MOTIVE. THE TRIAL COURT SAID, NO, IT WAS SHEAR SPECULATION BECAUSE THERE WAS NO EVIDENCE OF THAT SO THEY SHOULD NOT BE ALLOWED TO PURSUE THAT LINE OF QUESTIONING, AND THE COURT OF APPEAL HEARTILY AGREED. AND HERE, YOUR HONOR, WE STILL HAVE THE SITUATION, AND IT IS NOT JUST THE WAY THE PEOPLE HAVE FRAMED IT, BUT IT IS IN REALITY THE SITUATION THAT THERE IS NO EVIDENCE THAT DETECTIVE FUHRMAN MOVED ANY EVIDENCE OR PLANTED ANY EVIDENCE, PLANTED THE GLOVE AT ROCKINGHAM. THE DEFENSE STILL HAS NOT PRESENTED ANY EVIDENCE IN THAT REGARD. AND WHILE THE COURT HAS LOOKED AT THIS AFTER THAT AS MORE OF A CREDIBILITY ISSUE, THAT IS STILL AN IMPORTANT CONSIDERATION UNDER 352 IN ASSESSING THE PROBATIVE VALUE OF ALLOWING CROSS-EXAMINATION ON THE AREA OF RACE, BECAUSE ITS PROBATIVE VALUE IS FURTHER DIMINISHED AND WEAKENED BY THE FACT THERE IS NO EVIDENCE SUPPORTING THE DEFENSE'S UNDERLYING THEORY. I JUST WANT TO REITERATE AGAIN, YOUR HONOR, THE UNIQUE AND UNUSUAL CIRCUMSTANCES OF THIS CASE. I AM NOT AWARE OF ANY SITUATION WHERE WE HAVE HAD THESE TYPES OF ALLEGATIONS AGAINST A POLICE OFFICER WHO HAS RECOVERED IMPORTANT EVIDENCE IN A DOUBLE MURDER THAT IS BEING REPORTED ON WORLDWIDE BY THE PRESS. IT IS SIMPLY A UNIQUE SET OF CIRCUMSTANCES. UNDER THESE CIRCUMSTANCES, IN PARTICULAR, IT IS CLEAR TO ME THAT THERE WILL NOT BE A VIOLATION OF THE DEFENDANT'S RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES WERE THE COURT TO ALLOW AN OPPORTUNITY EVEN AT SIDE BAR DURING TESTIMONY AT THE VERY LATEST, BUT EVEN AN OPPORTUNITY SOONER THAN THAT IN A 402, TO DETERMINE WHAT THE COURT FEELS IS APPROPRIATE SO THAT WE DON'T MAKE, FRANKLY, A CIRCUS OUT OF THIS TRIAL BY WAY OF THE DETECTIVE OF DETECTIVE FUHRMAN AND SO THAT THIS TRIAL CAN FOCUS ON WHAT IT SHOULD BE FOCUSED ON AND THAT IS THE ASCERTAINMENT OF TRUTH.

THANK YOU, COUNSEL. MR. BAILEY.

IF IT PLEASE THE COURT, I THINK THIS IS A REVISITATION OF THE RATHER CLEAR RULING YOU MADE WHEN YOU SAID THE ANTHONY P. CASE IS CONTROLLING AS MANDATED BY ALASKA V. DAVIS IF THE ISSUE OF BIAS CROSS-EXAMINATION LICENSE IS BROAD. AND THIS IS NOT A UNIQUE CASE, NOR IS THIS DETECTIVE THE FIRST ONE THAT MAY BE IN A POSITION TO BE ACCUSED OF THAT. HOWEVER, AND TO CUT TO THE QUICK OF THIS MATTER, SHORT OF GIVING THE PROSECUTION AN OPPORTUNITY TO INTERRUPT THE CROSS-EXAMINATION OR PREVIEW WHAT IT CAN THEN WARN ITS WITNESS ABOUT AND HE WON'T BE SURPRISED AS LONG THE INFORMATION USED IS TRUTHFUL BECAUSE HE WILL HAVE BEEN PRIVY TO IT WHETHER COUNSEL KNOWS ABOUT IT OR NOT, IS ANOTHER QUESTION.

I PROPOSE THE FOLLOWING: IT IS I THINK ENDEMIC TO THE CONDUCT OF A LAWSUIT THAT NOT ONLY IS THE JUDGE INTERESTED WHEN THE WORLD IS WATCHING OR WHEN ONLY A FEW PEOPLE ARE WATCHING IN SEEING THAT JUSTICE IS CARRIED OUT AT THE HIGHEST LEVEL ATTAINMENT, BUT ALSO RESPONSIBLE COUNSEL HAVE AN OBLIGATION NOT ONLY TO THE PROFESSION AND THE COURT, BUT TO THE PUBLIC AT LARGE, NOT TO RECKLESSLY ASK QUESTIONS OR UNFAIRLY PAINT OR TAINT A WITNESS WITH UNDESERVED ACCUSATIONS. TO ASSIST THE COURT IN THE HANDLING OF THIS DELICATE MATTER WITHIN THE CONTEXT OF THIS CASE, I CONCEDE THAT IT IS. I PROPOSE THAT THE DEFENSE PROVIDE YOU IN CAMERA UNDER SEAL, NOT TO BE GIVEN TO EITHER THE PRESS OR THE PROSECUTION, BUT TO ASSIST YOU IN MAKING RULINGS FROM TIME TO TIME AS THEY MAY BE NECESSARY ON CROSS-EXAMINATION, NO. 1, THE AREAS OF INTENDED INQUIRY, AND NO. 2, THE SUPPORTING EVIDENCE WHICH IS EITHER UNDER SUBPOENA OR REASONABLY EXPECTED TO BE PRODUCED IN THE COURSE OF THE DEFENSE CASE IN THE EVENT THERE IS A DENIAL. IF THERE IS NOT A DENIAL, THEN THE NEED FOR CONTRADICTORY EVIDENCE EVAPORATES. IF THERE IS A DENIAL, I WAS TAUGHT FORTY YEARS AGO THAT YOU DON'T ASK A QUESTION UNLESS YOU HAVE THE EVIDENCE TO BACK IT UP IN CASE YOU GET A DENIAL FROM THE WITNESS, AND I THINK THAT IS THE RULE. AND ORDINARILY THAT WOULD BE SUFFICIENT. THE REMEDY WOULD BE IF COUNSEL OVERSTEPPED THAT LINE, WHOEVER DOES THIS CROSS-EXAMINATION, TO DISCIPLINE THE LAWYER; HOWEVER, YOU CAN'T UNRING THE BELL. AND IN ORDER TO SPEED UP AND PERMIT A REASONABLE PACE OF CROSS-EXAMINATION, IT SEEMS TO ME ONE COULD HARDLY BE MORE FAIR THAN TO GIVE THE COURT A HELPFUL PREVIEW AND HAVE IT STOP RIGHT THERE. WHETHER THE PROSECUTION LATER GETS ITS HAND ON THE DOCUMENT I THINK WOULD BE A SHOWING OF MANIFEST NECESSITY PERHAPS, BUT WE WILL BE PREPARED TO CALL THE WITNESSES WHO WILL TESTIFY TO THOSE THINGS WHICH FORM THE BASIS OF THE QUESTIONS. AND I THINK UNDER ALASKA V. DAVIS AND ITS PROGENY WE CAN BE ASKED NO MORE.

THANK YOU, COUNSEL. MISS LEWIS.

YOUR HONOR, THE EVIDENCE IS STILL SUBJECT TO 352 EVALUATION BY THE COURT AND THE PEOPLE SHOULD STILL HAVE AN OPPORTUNITY TO BE HEARD UNDER 352. THAT IS OUR GREAT CONCERN HERE, IS THE UNDUE PREJUDICE THAT IS LIKELY TO ARISE FROM PLANTING -- GIVEN THE SCANT, IF ANY, PROBATIVE VALUE FROM PLANTING THE IDEAS IN THE JUROR'S MIND WHEN THEY ASK QUESTIONS. I THINK THE PEOPLE HAVE A RIGHT TO BE PRESENT AND TO BE HEARD BY THE COURT WITHOUT HAVING THE COURT UNILATERALLY ASSESS BASED ON DEFENSE REPRESENTATIONS, AND I DO -- ALTHOUGH A MOMENT AGO I REITERATED THIS IS NOT A DISCOVERY HEARING, I DO WANT TO REINFORCE WHAT THE COURT MENTIONED A MOMENT AGO, AND THAT IS THAT SINCE DETECTIVE FUHRMAN IS ON OUR WITNESS LIST AND IS OBVIOUSLY GOING TO BE CALLED AS A WITNESS, IF THERE ARE INDEED REBUTTAL STATEMENTS FROM OTHER WITNESSES WHOM THE DEFENSE INTENDS TO CROSS-EXAMINE ABOUT, WE DO HAVE THE RIGHT TO THOSE STATEMENTS. IT IS ONLY STATEMENTS MADE BY THE DETECTIVE HIMSELF THAT ARE DIRECTLY IMPEACHING IN THAT SENSE THAT WE MAY NOT HAVE THE RIGHT TO, BUT THIS IS NOT A SITUATION WHERE THE DEFENSE HAS INTERVIEWED DETECTIVE FUHRMAN, COME UP WITH IMPEACHING STATEMENTS, AND AGAIN CAN HOLD ONTO THAT INFORMATION. THIS IS A SITUATION APPARENTLY, BY WHAT MR. BAILEY HAS SAID, WHERE THEY HAVE GLEANED ADDITIONAL WITNESSES, ADDITIONAL EVIDENCE PERHAPS -- I CAN'T TELL FROM WHAT HE SAID, FRANKLY -- BUT IT IS CERTAINLY A SITUATION WHERE UNDER THE CIRCUMSTANCES OF THIS CASE THE PEOPLE SHOULD BE -- THE PEOPLE SHOULD BE ALLOWED TO BE HEARD. YOUR HONOR, I JUST DO WANT TO REPEAT AGAIN THAT THIS IS A VERY VOLATILE SUBJECT. THIS WHOLE TRIAL HAS BEEN A VERY VOLATILE, SO TO SPEAK, IN THE SENSE OF BEING SO WORLD WATCHED. EVERYTHING THAT GOES ON IN TRIAL IS SCRUTINIZED. THIS IS A SITUATION WHERE WE SHOULD NOT ALLOW THE DEFENSE TO MAKE RACIAL ACCUSATIONS AGAINST A WHITE POLICE OFFICER IN FRONT OF A PREDOMINANTLY BLACK JURY WITHOUT HAVING AN OPPORTUNITY TO BE HEARD, BECAUSE THEY HAVE NOT COME FORTH WITH ANY EVIDENCE THAT THIS POLICE OFFICER DID ANYTHING, ANYTHING WRONG IN THIS CASE.

ALL RIGHT. MR. BAILEY, DO YOU WANT TO ADDRESS BRIEFLY THE DISCOVERY ISSUE?

A STATEMENT WAS GIVEN BY ONE WITNESS. THAT HAS BEEN TURNED OVER. ANOTHER WITNESS APPEARED ON THE TELEVISION SHOW AND WE HAVE NOTHING MORE AND NO PERSONAL CONTACT WITH THE WITNESS, ONLY THROUGH COUNSEL. THERE IS NOTHING TO TURN OVER THERE. THERE ARE NO OTHER STATEMENTS THAT I KNOW OF. WHAT I SUGGESTED TO YOU WAS A PROFFER FROM COUNSEL AS OFFICERS OF THE COURT AS TO WHAT COULD BE PROVIDED IN THE WAY OF TESTIMONY IF THERE IS A DENIAL. VERY FRANKLY, IN SOME CASES THERE IS NOT GOING TO BE A DENIAL IN MY VIEW; THERE ARE TOO MANY SUPPORTING RECORDS.

ALL RIGHT.

YOUR HONOR, I'M -- I'M SORRY. I SHOULD HAVE MADE MENTION OF THE FACT THAT THE DEFENSE HAS ALREADY INDEED DISCLOSED THE STATEMENT OF ONE WITNESS, SO IT CERTAINLY COULD BE HANDLED IN A 402. THEY HAVE ALREADY ABANDONED SOME ELEMENT OF SURPRISE, SO THE COURT COULD CERTAINLY RULE ON THAT WITNESS' STATEMENT PRIOR TO CROSS-EXAMINATION AFTER AN OPPORTUNITY TO BE HEARD SPECIFICALLY WITH REGARD TO IT.

ALL RIGHT. THE COURT WILL ACCEPT THE FILING UNDER SEAL EX PARTY FROM THE DEFENSE REGARDING ITS PROFFER REGARDING CROSS-EXAMINATION OF DETECTIVE FUHRMAN. I'M GOING TO ASK COUNSEL TO ADVISE THE COURT WHEN WE ARE ABOUT TO GET TO THOSE ISSUES IN CROSS-EXAMINATION SO THAT I AM ALERTED TO THAT, AND IF NECESSARY, WE WILL HAVE A SIDE BAR DISCUSSION WITH ALL COUNSEL TO DISCUSS WHAT IS ABOUT TO TRANSPIRE. THAT WILL BE THE ORDER. THANK YOU.

YOUR HONOR, JUST SO I'M CLEAR, THE COURT WILL BE REVIEWING THE MATERIAL IN ADVANCE SO THAT HE WILL HAVE A CHANCE TO DIGEST IT?

I'M ASKING MR. BAILEY TO ADVISE AND ALERT THE COURT THAT WE ARE GOING TO GET INTO THOSE ISSUES.

THANK YOU. SO WE WILL HAVE A SIDE BAR?

WE WILL HAVE AN OPPORTUNITY TO DISCUSS IT, YES --

THANK YOU VERY MUCH.

-- AS IT OCCURS. IT MAY NOT OCCUR, DEPENDING ON HOW THE CASE TRANSPIRES. ALL RIGHT. LET'S MOVE ON TO THE 1335. MR. JONES, DO YOU WANT TO JOIN US, PLEASE.