Sidebar: hearsay objection

📄 Sidebar: hearsay objection — Monday, February 6, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\6\SIDEBAR-HEARSAY-OBJECTION.DOC

TRIAL

▲ Day 13 of 167

◀ Direct examination of Cynthia Shahian (part 1) Direct examination of Cynthia Shahian (part 2) ▶

Date: Monday, February 6, 1995 • Utterances: 22

At sidebar, Darden attempts to lay foundation for admitting Nicole Brown Simpson's statement as an excited utterance (spontaneous declaration) in reaction to a letter from OJ about removing her and the children from the house. Cochran objects that it is plain hearsay and not a proper spontaneous declaration. Judge Ito sustains the objection, ruling that merely seeing a letter sitting there is insufficient foundation to trigger the excited utterance exception.

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

# 2 THE COURT:

WE'RE OVER HERE AT THE SIDEBAR. OBJECTION IS HEARSAY.

# 3 MR. DARDEN:

THE QUESTION WAS, DID SHE SAY ANYTHING AT THIS TIME. SO WHAT'S THE OBJECTION?

# 4 THE COURT:

I THOUGHT THE QUESTION WAS, WHAT DID SHE SAY.

# 5 MR. COCHRAN:

WELL, I ASSUME IT'S YES IF THAT WAS THE QUESTION. THEN WHERE ARE WE GOING WITH THAT? LET'S MAKE OUR OFFER OF PROOF.

# 6 MR. DARDEN:

SHE HASN'T ANSWERED YET. I'M LAYING A FOUNDATION FOR A SPONTANEOUS DECLARATION.

# 7 MR. COCHRAN:

BALONEY.

# 8 MR. DARDEN:

SHE IS ANGRY, SHE'S UPSET, SHE'S DEVASTATED, SHE'S HORRIFIED. I WOULD SAY THAT WOULD BE APPROPRIATE FOUNDATION FOR HER STATE OF MIND FOR AN EXCITED UTTERANCE.

# 9 THE COURT:

WHAT'S YOUR OFFER OF PROOF AS TO WHAT SHE'S GOING TO SAY?

# 10 MR. DARDEN:

SHE'S GOING TO SAY THAT SHE CAN'T BELIEVE THAT HE'S GOING TO PUT HER AND HIS CHILDREN OUT OF THE HOUSE.

KEY QUOTE

# 11 MR. COCHRAN:

WHAT DOES THAT HAVE TO DO WITH THIS CASE? THAT'S PREPOSTEROUS. IT'S HEARSAY. I CAN'T EXAMINE HER ON THAT. IF WE'RE TALKING ABOUT HER DEMEANOR, THAT'S SURE NOT A SPONTANEOUS UTTERANCE. THIS LETTER IS GOING TO BOOMERANG ON HIM. THAT LETTER DOES NOT PURPORT WHAT THEY WANT IT TO AND THEY CAN ARGUE ALL THEY WANT TO. LET'S SEE WHO THE JURY BELIEVES.

# 12 MR. DARDEN:

WHAT'S PREPOSTEROUS ABOUT THAT? THAT'S WHAT WE KNOW FROM THE DIARY, WHAT HE WAS UP TO. AND I RECOGNIZE THAT THE LETTER HAS ALL KINDS OF LEGALESE IN IT, AND THEY ARE GOING TO KNOW HE DIDN'T WRITE IT.

# 13 MR. COCHRAN:

WHAT SHE SAID IS HEARSAY. IF THEY WANT TO PUT THE LETTER UP, FINE. YOU CAN'T GET ANY STATEMENT IN.

# 14 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 15 MR. DARDEN:

ADDITIONALLY, IT ALSO EXPLAINS THE NATURE OF THEIR RELATIONSHIP AND SHOWS VIOLENT DAYS BEFORE THEIR --

# 16 THE COURT:

THE PROBLEM IS, WE STILL HAVE A HEARSAY RULE. AND TO BE A SPONTANEOUS DECLARATION, IT HAS TO BE IN RESPONSE TO SOMETHING. AND THE FACT THAT SHE SEES THIS LETTER, I MEAN THAT'S NOT ENOUGH FOUNDATION TO GET IN A SPONTANEOUS DECLARATION.

# 17 MS. CLARK:

HER REACTION TO IT.

# 18 THE COURT:

IT'S JUST SITTING THERE.

# 19 MR. DARDEN:

NO. SHE WENT AND GOT IT.

# 20 MR. COCHRAN:

IT'S HEARSAY, YOUR HONOR.

# 21 THE COURT:

OBJECTION SUSTAINED.

# 22 MR. COCHRAN:

THANK YOU.

Temperature

tense

Key Quotes (4)

Johnnie Cochran

BALONEY.

One-word dismissal of Darden's spontaneous declaration foundation argument — cuts through the legalese with maximum contempt.

Christopher Darden

SHE'S GOING TO SAY THAT SHE CAN'T BELIEVE THAT HE'S GOING TO PUT HER AND HIS CHILDREN OUT OF THE HOUSE.

The offer of proof: Nicole's reaction to the letter reveals the hostile and controlling nature of OJ's conduct toward her near the time of the murders.

Johnnie Cochran

THIS LETTER IS GOING TO BOOMERANG ON HIM. THAT LETTER DOES NOT PURPORT WHAT THEY WANT IT TO AND THEY CAN ARGUE ALL THEY WANT TO. LET'S SEE WHO THE JURY BELIEVES.

Cochran pivots from legal argument to jury persuasion confidence — suggests the defense welcomes the letter being in evidence on their own terms.

Lance A. Ito

TO BE A SPONTANEOUS DECLARATION, IT HAS TO BE IN RESPONSE TO SOMETHING. AND THE FACT THAT SHE SEES THIS LETTER, I MEAN THAT'S NOT ENOUGH FOUNDATION TO GET IN A SPONTANEOUS DECLARATION.

The ruling: passive exposure to a document doesn't create the necessary startling event to trigger the excited utterance hearsay exception.

Evidence (2)

Informal

A letter, apparently from OJ to Nicole, containing 'legalese' about removing her and the children from the house — Darden notes OJ did not write it himself

discussed as foundation for spontaneous declaration; objection sustained, statement excluded

Informal

Nicole's diary, referenced by Darden as corroborating what OJ 'was up to'

referenced informally to support the prosecution's narrative of the relationship

Notable Exchanges (2)

Christopher Darden•Johnnie Cochran

Darden argues Nicole's emotional state (angry, upset, devastated, horrified) is sufficient foundation for an excited utterance; Cochran dismisses it as 'baloney' and 'preposterous hearsay'

heated

Lance A. Ito•Marcia Clark•Christopher Darden

Clark interjects 'her reaction to it' as the triggering event; Ito and Darden spar over whether going to retrieve the letter distinguishes it from passively seeing it; Ito remains unpersuaded

procedural

Objections

4 objections (1 sustained, 0 overruled)

Proceeding 4746 • 22 utterances

Criminal Trial

Department 103