Sidebar: tape recording

📄 Sidebar: tape recording — Friday, February 3, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\3\SIDEBAR-TAPE-RECORDING.DOC

TRIAL

▲ Day 12 of 167

◀ Cross-examination of Sgt. Robert Lerner (part 1) Cross-examination of Sgt. Robert Lerner (part 2) ▶

Date: Friday, February 3, 1995 • Utterances: 24

At sidebar, Darden and Cochran spar over whether Cochran can question a witness about the contents of a tape recording made by Sergeant Lally. Darden argues any reference to the tape's content is hearsay and asks the judge to admonish Cochran; Cochran maintains he is only laying foundation and has not elicited inadmissible content. The judge agrees the tape's content is hearsay but allows limited foundational questions since the witness has already stated he heard the recording.

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

# 2 THE COURT:

ALL RIGHT. WE ARE OVER AT THE SIDE BAR. I TAKE IT THE PROSECUTION IS NOT GOING TO OVER THE TAPE-RECORDING?

# 3 MR. DARDEN:

NO, I'M NOT GOING TO OFFICER IT. AND ASKING THE WITNESS ABOUT THE CONTENT, YOU KNOW, OF THE SUM AND SUBSTANCE OF CONVERSATIONS, THEY ARE HEARSAY. AM I WRONG ABOUT THAT?

# 4 MR. COCHRAN:

YES.

# 5 MR. DARDEN:

YOU ARE WRONG ABOUT THAT. SO WHY IS HE EVEN BEING ALLOWED TO GET INTO THIS? IF MR. SIMPSON WANTS TO TESTIFY AS TO WHAT HAPPENED, HEY, YOU KNOW, THIS AN OPEN INVITATION FOR TO HIM DO SO ANYTIME HE WANTS TO DO SO, BUT YOU KNOW, BUT TO TRY TO DIAGRAM THIS HEARSAY OUT IN FRONT OF THE JURY THE WAY HE IS DOING IT, I THINK IT IS UNFAIR.

# 6 MR. COCHRAN:

YOUR HONOR, MAY I RESPOND? FIRST OF ALL, I HAVEN'T DRAGGED ANY HEARSAY OUT. THERE IS A DEFINITE MISUNDERSTANDING BETWEEN WHAT HEARSAY IS BETWEEN ME AND MR. DARDEN, WHICH WE MAY RESOLVE BY THE END OF THE CASE. IT WON'T AFFECT OUR AFFECTION FOR ONE ANOTHER, BUT THERE IS A MISUNDERSTANDING REGARDING THAT.

BUT I HAVE ASKED THE APPROPRIATE QUESTION, DID THEY TALK ABOUT THE SUBJECT MATTER. I AM SATISFIED THAT THE ANSWER IS YES OR NO. I HAVEN'T GONE INTO THAT ASPECT BECAUSE THERE IS A TAPE-RECORDING. AND I AM PRIVILEGED TO BRING THIS OUT. NOW, WHETHER OR NOT I WANT TO INTRODUCE THIS TAPE NOW OR AT SOME LATER TIME, I CAN DO THAT AND THE TAPE IS A STATEMENT OF THESE PEOPLE.

# 7 THE COURT:

YOU BROUGHT OUT THAT HE IS AWARE OF A TAPE-RECORDING AND HE HAS HEARD IT, SO -- BUT SERGEANT LALLY IS THE ONE WHO MADE THE TAPE-RECORDING AND DOES THE INQUIRY ON THE TAPE, SO --

# 8 MR. COCHRAN:

YOU ARE RIGHT, YOU ARE ABSOLUTELY RIGHT, JUDGE. I DIDN'T HAVE ASK TO HIM UP HERE. I AM READY TO MOVE ON WITH MAYBE ONE OR TWO OTHER FOUNDATIONAL QUESTIONS. AND I UNDERSTAND THE RULINGS AND CHRIS WAS RIGHT TO THE POINT, BUT I HAVE A RIGHT TO BRING THAT OUT. IF THEY DON'T BRING SOMETHING OUT. AND THEY DON'T. AS THOUGH VIDEO OR SOMETHING LIKE THAT, I CAN TALK ABOUT IT, BUT THERE IS NOTHING IMPROPER ABOUT THAT.

# 9 MR. DARDEN:

LET ME SAY THIS --

# 10 MR. COCHRAN:

LET ME SAY ONE LAST THING REGARDING THE OPEN INVITATION FOR O.J. SIMPSON TO TESTIFY. I WILL TAKE THAT UNDER ADVISEMENT AND AT THE APPROPRIATE TIME THEY WILL BE THE FIRST TO KNOW WHEN WE MAKE THAT DECISION, YOUR HONOR.

KEY QUOTE

# 11 MR. DARDEN:

OKAY. BEFORE WE GO, PLEASE INSTRUCT MR. COCHRAN, ONE, NOT TO PULL A TAPE OUT OF HIS COAT POCKET BECAUSE I DON'T THINK WANT THE SAME THING TO HAPPEN WITH THE KNIFE THAT HAPPENED WITH THE TAPE. AND FURTHER, PLEASE INSTRUCT MR. COCHRAN NOT TO SUGGEST IN FRONT OF THE JURY THAT THE TAPE BE PLAYED OR ANY OF THAT, BECAUSE IT IS ALL -- BECAUSE IT IS ALL HEARSAY AND MR. SIMPSON IS HERE.

KEY QUOTE

# 12 THE COURT:

WELL, AT THIS POINT THE CONTENT OF THE TAPE IS HEARSAY.

# 13 MR. COCHRAN:

YES.

# 14 MR. DARDEN:

OKAY. WILL YOU ADMONISH MR. COCHRAN.

# 15 MR. COCHRAN:

HE DOESN'T HAVE TO ADMONISH ME. HE LOOKS AT ME AND HE KNOWS I'M GOING TO DO THE RIGHT THING. I'M NOT GOING TO DO THAT. BUT I WANT TO ASK SOME FOUNDATIONAL QUESTIONS ABOUT THE TAPE.

KEY QUOTE

# 16 THE COURT:

LIKE WHAT?

# 17 MR. COCHRAN:

WHEN LALLY COMES THEN WE WILL ADDRESS THAT ISSUE.

# 18 MR. DARDEN:

WHAT ARE THE OTHER FOUNDATIONAL QUESTIONS?

# 19 THE COURT:

WHAT ARE THE OTHER FOUNDATIONAL QUESTIONS THAT WE NEED? AT THIS POINT WE HAVE ALREADY GOT THAT THERE IS A TAPE AND HE HAS HEARD IT.

# 20 MR. COCHRAN:

I WANT TO KNOW HOW LONG THIS TAPE WAS, IF HE HEARD IT THAT NIGHT, WAS HE PRESENT. I DON'T WANT TO BRING THIS GUY BACK. I'M NOT GOING TO ASK ABOUT THE TAPE. WHY DO I HAVE TO GET PRESCRIBED WITH REGARD TO MY CROSS-EXAMINATION?

# 21 MR. DARDEN:

YOUR HONOR, EVERYTHING THIS WITNESS NOTES ABOUT THE TAPE IS HEARSAY. LATER ON HE HEARS THE TAPE AND LATER ON SOMEBODY TELLS HIM THAT THERE IS SUCH A TAPE, AND IT IS ALL BASED ON HEARSAY.

# 22 THE COURT:

BUT HE SAID HE HAS HEARD IT.

# 23 MR. COCHRAN:

HE SAID HE HEARD IT. I WILL MOVE ON.

# 24 THE COURT:

OKAY.

Temperature

tense

Key Quotes (4)

Christopher Darden

PLEASE INSTRUCT MR. COCHRAN, ONE, NOT TO PULL A TAPE OUT OF HIS COAT POCKET BECAUSE I DON'T THINK WANT THE SAME THING TO HAPPEN WITH THE KNIFE THAT HAPPENED WITH THE TAPE.

Darden alludes to a prior courtroom incident involving a knife — a memorable reference that hints at earlier courtroom theatrics and puts Cochran on notice.

Johnnie Cochran

IT WON'T AFFECT OUR AFFECTION FOR ONE ANOTHER, BUT THERE IS A MISUNDERSTANDING REGARDING THAT.

Cochran defuses tension with a wry aside about his relationship with Darden, characteristic of his courtroom persona.

Johnnie Cochran

LET ME SAY ONE LAST THING REGARDING THE OPEN INVITATION FOR O.J. SIMPSON TO TESTIFY. I WILL TAKE THAT UNDER ADVISEMENT AND AT THE APPROPRIATE TIME THEY WILL BE THE FIRST TO KNOW WHEN WE MAKE THAT DECISION.

Cochran pointedly responds to Darden's rhetorical challenge about Simpson testifying, keeping the possibility alive without committing.

Johnnie Cochran

HE DOESN'T HAVE TO ADMONISH ME. HE LOOKS AT ME AND HE KNOWS I'M GOING TO DO THE RIGHT THING.

Cochran resists being formally admonished, asserting his credibility with the judge directly.

Evidence (1)

Informal

Tape recording of witness statements made by Sergeant Lally

discussed; admissibility of content contested as hearsay; not introduced

Notable Exchanges (3)

Christopher Darden•Johnnie Cochran

Darden accuses Cochran of improperly eliciting hearsay about the tape's contents in front of the jury; Cochran argues he only asked yes/no foundational questions and never went into the substance.

heated

Christopher Darden•Lance A. Ito

Darden asks the judge to admonish Cochran and specifically to instruct him not to pull the tape from his pocket or suggest it be played — referencing a prior 'knife' incident as precedent for why such theatrics are problematic.

strategic

Johnnie Cochran•Lance A. Ito

Cochran pushes to ask additional foundational questions about the tape (length, whether witness was present); Ito questions what more is needed given the witness already confirmed he heard it. Cochran ultimately concedes and agrees to move on.

procedural

Light Moments (2)

Johnnie Cochran

Cochran jokes that his disagreement with Darden over hearsay doctrine 'won't affect our affection for one another.'

Johnnie Cochran

Cochran refuses to be admonished, telling the judge 'He looks at me and he knows I'm going to do the right thing.'

Objections

None recorded

Proceeding 4591 • 24 utterances

Criminal Trial

Department 103