Sidebar: photograph admissibility

📄 Sidebar: photograph admissibility — Monday, February 6, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\6\SIDEBAR-PHOTOGRAPH-ADMISSIBILI.DOC

TRIAL

▲ Day 13 of 167

◀ Direct examination of Denise Brown (morning, part 1) Motion: photograph evidence admission ▶

Date: Monday, February 6, 1995 • Utterances: 19

At the bench, Shapiro and Cochran challenged the prosecution's attempt to introduce a photograph without proper foundation, specifically disputing when it was taken. Judge Ito pressed Darden to tie the photograph to a specific incident covered under the court's prior Evidence Code 1101(b) ruling on domestic violence, and Darden admitted he could not make that connection, effectively killing the line of questioning.

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

# 2 MR. SHAPIRO:

YOUR HONOR, CAN WE TAKE THE PHOTOGRAPH DOWN WHILE WE ARE COMING UP HERE?

# 3 THE COURT:

NOT AT THE MOMENT. WHERE ARE WE GOING WITH THIS?

# 4 MR. DARDEN:

I WILL WITHDRAW THE QUESTION, YOUR HONOR.

# 5 MR. SHAPIRO:

YOUR HONOR, THERE IS ALSO NO FOUNDATION FOR THIS PHOTOGRAPH. DO WE HAVE A YEAR WHEN THIS PHOTOGRAPH WAS TAKEN?

# 6 MR. DARDEN:

I'M ABOUT TO ASK HER.

# 7 MR. SHAPIRO:

CAN WE HAVE AN OFFER OF PROOF ON THAT?

# 8 THE COURT:

HOW ARE WE GOING TO FIND THAT OUT WITHOUT ASKING HER WHAT NICOLE SAID?

# 9 MR. DARDEN:

I'M GOING AS TO ASK HER WHEN IT WAS, THE DATE THAT SHE SAW THE PHOTOGRAPH.

# 10 MR. COCHRAN:

WHAT IS THE ANSWER GOING TO BE, YOUR HONOR, BECAUSE WE DON'T KNOW ANYTHING ABOUT THIS. THIS WITNESS IS GOING TO VOLUNTEER ANYTHING.

# 11 THE COURT:

WHAT IS THE ANSWER GOING TO BE?

# 12 MR. DARDEN:

I THINK IT IS GOING TO BE 1985, AS I RECALL.

# 13 MR. COCHRAN:

WE WOULD OBJECT. THERE IS NO FOUNDATION AS TO WHEN THIS WAS TAKEN.

# 14 MR. COCHRAN:

WE WERE TOLD THIS WAS ALL '89, IF THE COURT PLEASES, AND BECAUSE WE RAISED SOME QUESTIONS ABOUT THOSE NUMBERS ON THE BACK AND THEY APPARENTLY HAVE TALKED TO SOMEBODY AT POLAROID, SO I THINK WE NEED AN OFFER OF PROOF WHERE THEY ARE GOING. PLUS, YOUR HONOR, THE THING WE POINTED OUT, YOU HAVE BEEN VERY CAREFUL ABOUT, IT IS SO FOOLISH FOR THEM TO DO THIS, THIS IS A DANGEROUS AREA. IF THEY EVER COULD GET A CONVICTION, THEY ARE TREADING ON SUCH DANGEROUS AREA. GOING INTO ALL THIS KIND OF STUFF IS TOTALLY IMPROPER. ASKS QUESTIONS THAT HE KNOWS ARE HEARSAY, KNOWS THAT WE HAVE TO BE -- I THINK THAT IS VERY IMPROPER, YOUR HONOR, AND YOU TOLD THEM THEY COULD LIMIT THIS.

KEY QUOTE

# 15 THE COURT:

MY CONCERN, MR. DARDEN, THAT IS THE COURT KEY RULING ON THIS 1101(B) STUFF WAS PRETTY LIMITED TO CERTAIN SPECIFIC INCIDENTS. CAN YOU TIE THIS PHOTOGRAPH TO AN INCIDENT?

KEY QUOTE

# 16 MR. DARDEN:

I DON'T KNOW WHAT THE INCIDENT IS THAT RELATES DIRECTLY TO THIS PHOTOGRAPH.

KEY QUOTE

# 17 MR. SHAPIRO:

YOUR HONOR, I THINK THAT ANSWERS THE QUESTION. THIS MAN HAS DELIBERATELY --

# 18 THE COURT:

HOLD ON.

# 19 (BRIEF PAUSE.)

Temperature

tense

Key Quotes (4)

Johnnie Cochran

WE WERE TOLD THIS WAS ALL '89, IF THE COURT PLEASES, AND BECAUSE WE RAISED SOME QUESTIONS ABOUT THOSE NUMBERS ON THE BACK AND THEY APPARENTLY HAVE TALKED TO SOMEBODY AT POLAROID

Reveals the defense had already investigated the photograph's provenance, catching the prosecution off-guard with a date discrepancy

Lance A. Ito

MY CONCERN, MR. DARDEN, THAT IS THE COURT KEY RULING ON THIS 1101(B) STUFF WAS PRETTY LIMITED TO CERTAIN SPECIFIC INCIDENTS. CAN YOU TIE THIS PHOTOGRAPH TO AN INCIDENT?

Ito puts the prosecution's burden squarely on them — the photo must connect to an approved incident

Christopher Darden

I DON'T KNOW WHAT THE INCIDENT IS THAT RELATES DIRECTLY TO THIS PHOTOGRAPH.

A damaging admission that the prosecution tried to introduce evidence without being able to satisfy the court's own prior ruling

Johnnie Cochran

IF THEY EVER COULD GET A CONVICTION, THEY ARE TREADING ON SUCH DANGEROUS AREA. GOING INTO ALL THIS KIND OF STUFF IS TOTALLY IMPROPER.

Cochran frames the prosecution's misstep as not just procedurally wrong but potentially reversible error

Evidence (1)

Informal

A Polaroid photograph, possibly from 1985, shown to a witness — previously represented to defense as being from 1989 based on numbers on the back

challenged, withdrawn pending foundation

Notable Exchanges (2)

Christopher Darden•Lance A. Ito

Ito asked Darden whether he could tie the photograph to a specific domestic violence incident under the 1101(b) ruling; Darden admitted he could not

revealing

Johnnie Cochran•Christopher Darden

Cochran accused Darden of deliberately asking questions he knew were hearsay and argued the prosecution was jeopardizing any potential conviction by overreaching

heated

Credibility Attacks (1)

⚔ Christopher Darden

exposing lack of preparation

Cochran and the judge both exposed that Darden attempted to introduce a photograph he could not tie to a specific approved incident or properly date, with Shapiro beginning to characterize it as deliberate misconduct before being cut off by the judge

Objections

2 objections (0 sustained, 0 overruled)

Proceeding 4642 • 19 utterances

Criminal Trial

Department 103