Cross-examination of Sgt. Robert Lerner (part 2)

📄 Cross-examination of Sgt. Robert Lerner (part 2) — Friday, February 3, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\3\CROSS-EXAMINATION-OF-SGT-ROBER.DOC

TRIAL

▲ Day 12 of 167

◀ Sidebar: tape recording Redirect examination of Sgt. Robert Lerner ▶

Witness: Sgt. Robert Lerner
Examiner: Johnnie Cochran
Called by: Prosecution • Date: Friday, February 3, 1995 • Utterances: 180

Cochran cross-examines Sergeant Lerner about a surreptitious audio recording made during the October 25, 1993 domestic violence call at the Simpson residence. The key revelation is that Lerner himself didn't know the tape existed until the morning before his testimony — it was secretly recorded by his own supervisor, Sergeant Lally. Cochran also works to establish OJ Simpson's demeanor during police interviews that night, eliciting testimony that Lerner had a 'calming effect' on Simpson.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 2 THE COURT:

ALL RIGHT. THANK YOU, COUNSEL. MR. COCHRAN.

# 3 MR. COCHRAN:

THANK YOU VERY KINDLY, YOUR HONOR. MAY I PROCEED, YOUR HONOR?

# 4 THE COURT:

PLEASE.

# 5 Q:

BY MR. COCHRAN: SERGEANT LERNER, DID YOU -- WHEN YOU LISTENED TO THE TAPE, IS THERE MORE THAN ONE TAPE?

# 6 A:

NOT TO MY KNOWLEDGE.

# 7 Q:

ALL RIGHT. YOU HEARD ONE TAPE WHEN YOU LISTENED TO IT; IS THAT CORRECT?

# 8 A:

THAT'S CORRECT.

# 9 Q:

WHEN WAS THAT THAT YOU LAST LISTENED TO THE TAPE?

# 10 A:

IT WAS YESTERDAY, I BELIEVE.

# 11 Q:

WHERE DID YOU LISTEN TO IT?

# 12 A:

IN THE DISTRICT ATTORNEY'S OFFICE.

# 13 Q:

THEY WERE PRESENT?

# 14 A:

YES, MR. DARDEN WAS PRESENT.

# 15 Q:

MR. DARDEN? DARDEN PLAYED IT FOR YOU?

# 16 A:

YES.

# 17 Q:

THAT WAS WHAT TIME YESTERDAY?

# 18 A:

YESTERDAY MORNING.

# 19 Q:

BEFORE COURT STARTED?

# 20 A:

YES.

# 21 Q:

AND WHEN YOU LISTENED TO THAT TAPE, YOU COULD HEAR THE VOICES OF THE PARTIES, COULD YOU?

# 22 A:

YES.

# 23 Q:

AND YOU RECOGNIZED THOSE VOICES?

# 24 A:

YES.

# 25 Q:

AND DID YOU HEAR -- DID YOU HEAR MR. SIMPSON'S VOICE ON THE TAPE?

# 26 A:

YES, I DID.

# 27 Q:

AND WHO WAS CONDUCTING THE INTERVIEW OF MR. SIMPSON ON THE TAPE THAT YOU HEARD?

# 28 A:

IT WAS MYSELF AND SERGEANT LALLY.

# 29 Q:

SO YOU WERE PRESENT WHEN THE INTERVIEW WAS ACTUALLY TAKING PLACE?

# 30 A:

YES, I WAS.

# 31 Q:

AND WITH REGARD -- DID YOU HEAR THE VOICE OF MISS NICOLE BROWN SIMPSON ON THE TAPE?

# 32 A:

YES, I DID.

# 33 Q:

AND DID YOU HEAR ANY OFFICER'S VOICES ON THAT?

# 34 A:

YES.

# 35 Q:

WHO WAS PRESENT?

# 36 A:

I WAS PRESENT, SERGEANT LALLY WAS PRESENT.

# 37 Q:

DID YOU KNOW THESE CONVERSATIONS WERE BEING TAPED?

# 38 A:

NO, I DIDN'T.

# 39 Q:

IN OTHER WORDS, MR. MARKS WAS TAPING -- SERGEANT LALLY WAS TAPING AND DIDN'T TELL YOU EITHER?

# 40 A:

THAT'S CORRECT.

# 41 Q:

SO IT WAS SURREPTITIOUSLY TAPED?

# 42 A:

YES.

# 43 Q:

SO WE ARE CLEAR ABOUT SURREPTITIOUSLY? SO YOU AND I KNOW WHAT WE ARE TALKING ABOUT?

# 44 A:

I'M NOT SURE IF MR. SIMPSON KNEW IT WAS BEING TAPED. WITH REGARD TO ME, IT WAS BEING SURREPTITIOUSLY TAPED.

# 45 Q:

BY YOUR BROTHER OFFICER?

# 46 A:

BY MY SUPERVISOR.

# 47 Q:

AT WHAT POINT DID YOU FIND OUT THAT THE CONVERSATION WAS BEING SURREPTITIOUSLY TAPED?

# 48 A:

YESTERDAY.

# 49 Q:

YOU DIDN'T KNOW THAT UNTIL YESTERDAY?

# 50 A:

I HAD NO IDEA.

# 51 Q:

FROM OCTOBER 25 OF '93?

# 52 A:

THAT IS CORRECT, SIR.

# 53 Q:

IF YOU DIDN'T KNOW, DO YOU THINK MR. SIMPSON KNEW?

# 54 MR. DARDEN:

OBJECTION.

# 55 MR. COCHRAN:

HE IS RIGHT ABOUT THAT, YOUR HONOR.

# 56 THE COURT:

SUSTAINED.

# 57 MR. COCHRAN:

LET ME ASK IT ANOTHER WAY, YOUR HONOR.

# 58 Q:

NOBODY CAME UP TO MR. SIMPSON AND SAID "WE ARE GOING TO TAPE YOU SURREPTITIOUSLY WITH THE TAPE"? YOU DIDN'T HEAR HIM --

# 59 A:

I DON'T THINK SOMEONE SAID HE IS GOING TO TAPE YOU SURREPTITIOUSLY.

# 60 Q:

THAT IS AN OXYMORON?

KEY QUOTE

# 61 A:

I BELIEVE IT IS.

# 62 Q:

THAT IS THE POINT OF THE QUESTION. YOU DIDN'T HEAR ANYBODY SAY THAT?

# 63 A:

I DIDN'T HEAR ANYBODY SAY TO MR. SIMPSON THAT WE WOULD TAPE SURREPTITIOUSLY.

# 64 Q:

YOU DIDN'T HEAR ANYBODY SAY TO MISS NICOLE BROWN THAT YOU WERE GOING TO BE SURREPTITIOUSLY TAPED EITHER, DID YOU?

# 65 A:

NO, I DIDN'T.

# 66 Q:

THIS TAPE THAT YOU LISTENED TO YESTERDAY MORNING IN MR. CHRISTOPHER DARDEN'S OFFICE, HOW LONG WAS THAT TAPE ALTOGETHER?

# 67 A:

IT WAS APPROXIMATELY THIRTY MINUTES.

# 68 Q:

THAT INCLUDES BOTH OF THE PARTIES; IS THAT CORRECT?

# 69 A:

YES, SIR.

# 70 Q:

IT INCLUDES YOUR QUESTIONS AND ANSWERS?

# 71 A:

YES, IT DOES.

# 72 Q:

SO THAT I CAN PUT THIS IN PERSPECTIVE FOR THE JURY, YOU DESCRIBED FOR US HOW YOU MET WITH NICOLE BROWN SIMPSON OUT FRONT, WENT THROUGH THE HOUSE, RIGHT?

# 73 A:

CORRECT.

# 74 Q:

THEN MET WITH MESSERS. SIMPSON AND KATO KAELIN IN THE BACK HOUSE?

# 75 A:

CORRECT.

# 76 Q:

WAS SERGEANT LALLY, YOUR SUPERVISOR, THERE AT THAT TIME?

# 77 A:

NO. HE -- THERE WAS APPROXIMATELY -- APPROXIMATELY TEN MINUTES DIFFERENCE FROM OUR TIME OF ARRIVAL TO SERGEANT LALLY'S ARRIVAL.

# 78 Q:

BY THE TIME HE ARRIVED -- LET'S ASSUME IT WAS ABOUT TEN MINUTES AFTER YOU ARRIVED, ALL RIGHT?

# 79 A:

OKAY.

# 80 Q:

AT THAT POINT WHERE WERE YOU?

# 81 A:

NEAR THE REAR HOUSE OR IN THE REAR HOUSE.

# 82 Q:

WERE YOU STILL TALKING TO MR. SIMPSON AND MR. KAELIN?

# 83 A:

YES.

# 84 Q:

DID HE COME BACK TO WHERE YOU WERE?

# 85 A:

YES, HE DID.

# 86 Q:

IN THE ORDER OF THIS TAPE, THIS SURREPTITIOUS TAPE, WHO WAS ON THE TAPE FIRST, MR. SIMPSON OR MR. --

# 87 THE COURT:

COUNSEL, I THINK WE ARE GOING INTO THE CONTENT OF THE TAPE AT THIS POINT.

# 88 MR. COCHRAN:

YOUR HONOR --

# 89 THE COURT:

YOU ARE ASKING HIM TO INTERPRET TAPE AND AT THIS POINT IT IS HEARSAY.

# 90 MR. COCHRAN:

HE WAS PRESENT. ALL RIGHT, YOUR HONOR, I WILL MOVE ON. I PRESUME LALLY WILL BE HERE.

# 91 Q:

IN THE ORDER OF EVENTS, HOWEVER, DID SERGEANT LALLY COME TO THE REAR HOUSE AND ASK SOME QUESTIONS FIRST?

# 92 A:

SERGEANT LALLY APPROACHED THE REAR HOUSE. I AT THAT TIME APPROACHED SERGEANT LALLY.

# 93 Q:

OKAY. THEN AFTER YOU APPROACHED SERGEANT LALLY, DID YOU TALK TO HIM?

# 94 A:

YES.

# 95 Q:

AND AFTER THAT WHERE DID SERGEANT LALLY GO?

# 96 A:

HE STAYED WITH ME.

# 97 Q:

AND -- OKAY. THE TWO OF YOU STAYED TOGETHER AND WHERE DID YOU GO?

# 98 A:

THERE WERE OTHERS PRESENT.

# 99 Q:

OKAY. WHO ELSE WAS PRESENT?

# 100 A:

MR. SIMPSON WAS PRESENT.

# 101 Q:

OKAY. MR. KAELIN WAS PRESENT ALSO?

# 102 A:

HE WAS IN THE IMMEDIATE VICINITY.

# 103 Q:

OKAY. DID THEN YOU HEAR SERGEANT LALLY START TO TALK TO MR. SIMPSON AT THAT POINT?

# 104 A:

YES.

# 105 Q:

AND DID YOU COMPLETE A CONVERSATION WITH MR. SIMPSON BEFORE YOU WENT SOME OTHER PLACE?

# 106 A:

YES.

# 107 Q:

WHEN YOU COMPLETED THE CONVERSATION WITH MR. SIMPSON, HOW MUCH TIME HAD PASSED?

# 108 A:

TEN MINUTES, FIVE, TEN MINUTES.

# 109 Q:

AND WHEN YOU COMPLETED THIS FIVE OR TEN MINUTES OF CONVERSATION -- IN WHICH YOU SPOKE AND ALSO SERGEANT LALLY SPOKE, RIGHT?

# 110 A:

YES.

# 111 Q:

-- WHERE --

# 112 A:

AND ALSO MR. SIMPSON SPOKE.

# 113 Q:

AND SIMPSON, ALL RIGHT. WHERE DID YOU NEXT GO AT THAT POINT, IF YOU RECALL?

# 114 A:

I WENT BACK INTO THE INTERIOR OF THE HOUSE, THE MAIN HOUSE.

# 115 Q:

AND DID YOU AT THAT POINT MEET AND TALK WITH OR HAVE A CONVERSATION WITH MISS NICOLE BROWN SIMPSON?

# 116 A:

YES, I DID.

# 117 Q:

AND WHO WAS PRESENT DURING THAT CONVERSATION?

# 118 A:

SERGEANT LALLY WAS PRESENT AND NICOLE BROWN SIMPSON WAS PRESENT.

# 119 Q:

AND DID YOU HEAR THEM AGAIN ENGAGE IN CONVERSATION?

# 120 A:

YES. THERE WAS A BRIEF ENGAGEMENT.

# 121 Q:

ALONG WITH YOURSELF?

# 122 A:

YES.

# 123 Q:

NOW, YOU DESCRIBED FOR US THAT THERE HAD BEEN SOME DAMAGE DONE TO SOME REAR DOUBLE FRENCH DOORS?

# 124 A:

CORRECT.

# 125 Q:

IS THAT CORRECT?

# 126 A:

YES, SIR.

# 127 Q:

AND WAS THE SUBJECT MATTER OF THOSE DOORS -- DID THAT BECOME PART OF THE CONVERSATION THAT WAS CONDUCTED THAT EVENING BY YOU?

# 128 MR. DARDEN:

SAME OBJECTION.

# 129 Q:

BY MR. COCHRAN: YOU CAN ANSWER THAT YES OR NO.

# 130 MR. DARDEN:

SAME OBJECTION.

# 131 THE COURT:

SUSTAINED.

# 132 Q:

BY MR. COCHRAN: DID YOU DETERMINE OR ASCERTAIN THAT THESE DOUBLE FRENCH DOORS HAD BEEN PARTIALLY BROKEN BEFORE ANYTHING OCCURRED THAT EVENING? DID YOU FIND THAT OUT?

# 133 MR. DARDEN:

OBJECTION, CALLS FOR HEARSAY.

# 134 THE COURT:

SUSTAINED.

# 135 MR. COCHRAN:

I WILL LINK IT UP.

# 136 THE COURT:

SUSTAINED.

# 137 Q:

BY MR. COCHRAN: DID YOU TAKE ANY PICTURES OF THOSE DOORS THAT NIGHT?

# 138 A:

NO.

# 139 Q:

DID MR. SIMPSON MAKE A STATEMENT ABOUT --

# 140 MR. DARDEN:

OBJECT TO THE FORM OF THE QUESTION.

# 141 MR. COCHRAN:

IT IS A SUBJECT MATTER STATEMENT. MAY I COMPLETE IT?

# 142 THE COURT:

IT IS HEARSAY, THOUGH. IT IS TELLING US WHAT THE CONTENT WAS.

# 143 MR. COCHRAN:

ALL RIGHT. VERY WELL.

# 144 Q:

AFTER YOU COMPLETED THE CONVERSATION WITH MISS NICOLE BROWN SIMPSON WHERE YOU WERE PRESENT AND SERGEANT LALLY WAS PRESENT, WHERE DID YOU NEXT GO THAT DAY, IF ANYTHING, THAT EVENING?

# 145 A:

I RETURNED BACK TO MR. SIMPSON'S LOCATION, WHICH WAS NEAR THE GUEST HOUSE IN THE REAR.

# 146 Q:

AND DID YOU HAVE A FURTHER CONVERSATION WITH HIM?

# 147 A:

YES, SIR.

# 148 Q:

AND THAT WAS AGAIN YOU AND SERGEANT LALLY?

# 149 A:

YES, SIR.

# 150 Q:

CORRECT?

# 151 A:

CORRECT.

# 152 Q:

ALL RIGHT. HOW LONG DID THAT CONVERSATION -- THIS SECOND OR THIRD CONVERSATION WITH SIMPSON TAKE?

# 153 A:

ANOTHER PROBABLY FIVE TO TEN MINUTES.

# 154 Q:

NOW, YOU HAD INDICATED THAT AT SOME POINT WHEN YOU FIRST SAW MR. SIMPSON HE APPEARED TO YOU TO BE UPSET AND AGITATED. AS YOU TALKED TO HIM AND HE TALKED ABOUT THE EVENTS OF THAT NIGHT, DID HIS DEMEANOR CHANGE, BECOME LESS AGITATED?

# 155 A:

YEAH, I WOULD SAY IT DID.

# 156 Q:

WOULD YOU SAY THAT IS REFLECTED IN THE WAY HE RESPONDED TO YOUR QUESTIONS DURING THE VARIOUS CONVERSATIONS?

# 157 A:

I'M SORRY, I DON'T UNDERSTAND THE QUESTION.

# 158 Q:

YES. WITH REGARD TO THE CHANGE IN HIS DEMEANOR FROM BEING AGITATED TO BEING MORE CALM, WOULD YOU SAY THAT WAS REFLECTED IN THE WAY THE TWO OF YOU TALKED DURING THESE VARIOUS CONVERSATIONS YOU HAD WITH HIM?

# 159 A:

I WOULD SAY I HAD A CALMING AFFECT ON MR. SIMPSON, YES.

KEY QUOTE

# 160 Q:

SO THAT BY THE TIME YOU CONCLUDED YOUR CONVERSATIONS, YOU AND SERGEANT LALLY, HE WAS IN A CALMER STATE THAN HE HAD BEEN IN EARLIER; IS THAT RIGHT?

# 161 A:

THERE WAS A POINT DURING THE CONVERSATION WHERE HE AGAIN BECAME AGITATED.

# 162 Q:

ALL RIGHT. AND THEN YOU HAD A CALMING EFFECT?

# 163 A:

YES.

# 164 Q:

THEN HE BECAME CALM AT SOME POINT AGAIN; IS THAT RIGHT?

# 165 A:

THAT'S CORRECT.

# 166 Q:

THERE WERE NO ARRESTS MADE THAT NIGHT; IS THAT CORRECT?

# 167 A:

THAT IS CORRECT.

# 168 Q:

AND WITH REGARD TO THIS ENTIRE INCIDENT, IF WE ASSUME THAT YOU ARRIVED SOMEWHERE AROUND TEN O'CLOCK P.M., SERGEANT LERNER, WHAT TIME DID YOU FINALLY LEAVE THE SCENE THAT PARTICULAR NIGHT?

# 169 A:

ON OUR COMPUTER SCREEN WHEN WE LEAVE THE SCENE, I PUT US ON A FOLLOW-UP AND IT WAS APPROXIMATELY 2328. THAT WOULD BE 11:28.

# 170 Q:

SO YOU WERE OUT THERE ABOUT AN HOUR AND A HALF?

# 171 A:

PRETTY CLOSE.

# 172 Q:

WITH THE EXCEPTION OF MAYBE THE FIRST TEN MINUTES, IT WAS YOU, YOUR SUPERVISOR AT THAT TIME, SERGEANT LALLY, AND YOUR PARTNER AT THAT TIME, SPENCER MARKS?

# 173 A:

THAT'S CORRECT.

# 174 Q:

DID YOU ALSO TALK TO KATO KAELIN?

# 175 A:

NOT REALLY.

# 176 Q:

DID YOU -- WHEN YOU LISTENED TO THIS TAPE, THIS AUDIOTAPE IN MR. CHRIS DARDEN'S OFFICE YESTERDAY MORNING, DID YOU EVER HEAR CHRIS DARDEN -- STRIKE THAT -- DID YOU EVER HEAR KATO KAELIN'S VOICE?

# 177 A:

NO, I DIDN'T.

# 178 Q:

I HOPE YOU DIDN'T HEAR CHRIS DARDEN'S VOICE?

KEY QUOTE

# 179 A:

NO.

# 180 MR. COCHRAN:

VERY WELL. I HAVE NOTHING FURTHER OF THIS WITNESS AT THIS POINT, YOUR HONOR.

Temperature

procedural

Key Quotes (5)

Witness (Lerner)

IT WAS SURREPTITIOUSLY TAPED. YES.

Confirms the recording was made without the knowledge of those being taped, undermining any implication that Simpson or Nicole consented to or knew about the recording.

Witness (Lerner)

I HAD NO IDEA. FROM OCTOBER 25 OF '93... YESTERDAY.

Lerner learned the tape existed only the day before testifying — the DA's office revealed it to him just in time for trial, which Cochran uses to highlight how controlled the prosecution's evidence disclosure was.

Witness (Lerner)

I WOULD SAY I HAD A CALMING AFFECT ON MR. SIMPSON, YES.

Defense-friendly testimony suggesting Simpson was cooperative and responsive to police during the 1993 incident, undermining a portrait of an uncontrollable abuser.

Johnnie Cochran

THAT IS AN OXYMORON? ... THAT IS THE POINT OF THE QUESTION.

Cochran uses wordplay to make the absurdity of surreptitious consent self-evident to the jury — a rhetorically effective moment.

Johnnie Cochran

I HOPE YOU DIDN'T HEAR CHRIS DARDEN'S VOICE?

Closing joke that lands with the witness confirming 'No,' letting Cochran end the cross on a light, confident note.

Evidence (1)

Informal

Surreptitious audio recording of October 25, 1993 domestic incident at Simpson residence, approximately 30 minutes long, made by Sergeant Lally without informing Lerner, Simpson, or Nicole Brown Simpson

discussed — Cochran establishes chain of custody and circumstances of its making; content blocked by hearsay objections

Notable Exchanges (2)

Johnnie Cochran•Witness (Lerner)

Cochran establishes that Lerner's own supervisor secretly taped him — framing the tape not just as secret from Simpson but from the other officers too, undercutting any 'standard procedure' justification.

strategic

Johnnie Cochran•Lance A. Ito

Judge cuts off Cochran's attempt to walk through tape sequence, ruling it hearsay. Cochran pivots cleanly — 'I presume Lally will be here' — signaling he'll get the content through the recorder himself.

procedural

Light Moments (2)

Johnnie Cochran / Witness (Lerner)

Cochran and Lerner bond over the oxymoron of telling someone they'll be 'surreptitiously taped' — Lerner confirms 'I BELIEVE IT IS,' and Cochran replies 'THAT IS THE POINT OF THE QUESTION.'

Johnnie Cochran

Cochran closes cross with 'I hope you didn't hear Chris Darden's voice?' — a playful dig at Darden who had been objecting throughout. Lerner answers 'No.'

Credibility Attacks (1)

⚔ Prosecution (institutional)

evidence disclosure timing

Cochran highlights that Lerner only learned of the tape's existence the morning before testimony, when Darden played it for him — implying the DA controlled and timed the revelation strategically.

Witness Demeanor

Cooperative and direct throughout

Moment of genuine uncertainty: 'I'M SORRY, I DON'T UNDERSTAND THE QUESTION' — not evasive, just confused by a compound question

Voluntarily adds detail: 'AND ALSO MR. SIMPSON SPOKE' — forthcoming rather than guarded

Objections

5 objections (5 sustained, 0 overruled)

Proceeding 4592 • 180 utterances • Prosecution witness

Criminal Trial

Department 103