Sidebar: witness conduct

📄 Sidebar: witness conduct — Tuesday, February 7, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\7\SIDEBAR-WITNESS-CONDUCT.DOC

TRIAL

▲ Day 14 of 167

◀ Direct examination of Karen Crawford (part 2) Cross-examination of Karen Crawford ▶

Date: Tuesday, February 7, 1995 • Utterances: 18

Cochran objected to Clark making gestures and mouthing words to a witness (who was on the verge of tears) during testimony, arguing it was unprofessional and visible to the jury. A secondary dispute arose over Clark repeatedly showing witnesses photographs of pants, a shirt, and a crime scene envelope, which Cochran argued was inflammatory and improper. Judge Ito acknowledged Clark's explanation but ordered her to stop having private conversations with the witness.

# 1 MR. COCHRAN:

MAY WE APPROACH, YOUR HONOR?

# 2 THE COURT:

YES. WITH THE COURT REPORTER, PLEASE.

# 3 MS. CLARK:

YOUR HONOR, CAN THE WITNESS STEP DOWN WHILE WE ARE AT SIDE BAR?

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

# 5 THE COURT:

ALL RIGHT. WE ARE AT THE SIDE BAR.

# 6 MR. COCHRAN:

I'M GOING TO OBJECT TO MISS CLARK --

# 7 THE COURT:

MADE A GESTURE TO THE WITNESS.

# 8 MR. COCHRAN:

-- GOING LIKE THIS AND THAT IS NOT PROFESSIONAL AND THIS IS NOT ANYBODY'S LIVING ROOM, AND MARCIA IS AN EXCELLENT LAWYER AND WE DON'T NEED THAT. THAT IS INAPPROPRIATE AND THE JURORS SEE IT ALSO.

# 9 THE COURT:

ALL RIGHT.

# 10 MS. CLARK:

I SAID TO THE WITNESS ONE -- JUST ONE MORE QUESTION BECAUSE IT LOOKED LIKE SHE WAS GOING TO START CRYING AGAIN. I JUST WANTED TO COMPLETE THE DIRECT SO THAT SHE COULD COMPOSE HERSELF FOR CROSS. IT WAS JUST TO REASSURE HER THAT WE WERE ALMOST DONE.

KEY QUOTE

# 11 THE COURT:

I UNDERSTAND THAT. I HEARD WHAT YOU SAID. I SAW YOU DO IT. IT WOULD I THINK BE THE BETTER PRACTICE OR YOU CAN SAY THOSE THINGS TO THE WITNESSES, AND WE WERE WAITING FOR SOMETHING TO BE PRINTED OUT AS I RECALL, BUT IF YOU WOULD JUST AUDIBLY, SO THERE ARE NO SECRETS SO IT IS ON THE RECORD.

# 12 MS. CLARK:

AND DID REPEAT IT LOUD ENOUGH SO THAT EVERYONE COULD HEAR.

# 13 MR. COCHRAN:

WE COULD NOT HEAR IT. YOU WERE MOUTHING THE WORDS. SHE COULD APPROACH THE WITNESS AND DO IT. ANOTHER THING HAS TO DO WITH THIS PHOTOGRAPH. AFTER ALL, WE HAVE BEEN TRYING CASES FOR A VERY LONG TIME, AND FIRST OF ALL, HOW MANY TIMES DOES SHE HAVE TO SHOW THE PANTS, THE BLACK PANTS AND WHITE SHIRT? TO EVERY WITNESS UNTIL THEY START CRYING? OR TO END WITH THAT PHOTOGRAPH, THAT PHOTOGRAPH IS NOT THE WAY -- THAT LAST PHOTOGRAPH, JUDGE, IS RIGHT OVER THE EDGE AGAIN WHERE THE PROSECUTION HAS GONE OVER THE EDGE AGAIN. THAT ENVELOPE, SHE HAS SEEN THE ENVELOPE. THIS LADY WAS NEVER AT THE CRIME SCENE AND THAT IS PREPOSTEROUS AND I THINK THAT IS IMPROPER. SHE HAS ALL THESE WITNESSES TO DO THAT.

# 14 MS. CLARK:

I NEED TO LINK THE ENVELOPE SHE REMEMBERS WRITING ON WITH THE CRIME SCENE ENVELOPE. I NEED TO DO IT WITH HER AND I NEED TO DO IT WITH THE OFFICERS AND THERE IS NOTHING INAPPROPRIATE. AS A MATTER OF FACT, THAT IS EXACTLY WHAT SHE DID AT THE PRELIMINARY HEARING, BECAUSE WE DIDN'T WANT TO BRING IN THE ENVELOPE. AT THE TIME IT WAS UNDERGOING TESTING. IT WASN'T AS GOOD AS BRINGING IN THE ENVELOPE BECAUSE IT COULDN'T SHOW HER WRITING BECAUSE ALL OF THE PHOTOGRAPHS SHOW ON THE BACK, BUT I HAVE TO LINK IT UP.

# 15 THE COURT:

AT THIS POINT ALL SHE CAN SAY IS IT LOOKS LIKE THE ENVELOPE.

# 16 MR. COCHRAN:

THAT IS A WHOLE POINT. WE DON'T CARE WHAT HAPPENED AT THE PRELIMINARY HEARING. THERE WAS NO JURY AT THE PRELIMINARY HEARING AND THAT IS DIFFERENT. WE HAVE TO PROTECT THIS JURY AND PROTECT OUR CLIENT'S RIGHT TO A FAIR TRIAL, JUDGE, AND I THINK YOU SHOULD ADMONISH THE JURY. SHE IS OVER THERE WHISPERING, MOUTHING THINGS. SHE IS WAY OVER THERE. THEY MAY HAVE HEARD HER. THAT IS IMPROPER. AND THEY FLASH -- SHE SHOWS THOSE PANTS AND SHIRTS AND WE DON'T HAVE ANY HAY ON OUR COATS AND WE KNOW WHAT IS GOING ON AND WE HAVE TO RESPOND TO THIS KIND OF THING. IT IS NOT FAIR AND MY CLIENT'S RIGHT TO A FAIR TRIAL IS BEING DIMINISHED BECAUSE OF THAT.

# 17 THE COURT:

OKAY. I HAVE HEARD ENOUGH. THE OBJECTION IS NOTED. MISS CLARK, NO MORE PRIVATE CONVERSATIONS WITH THE WITNESS OVER THERE.

# 18 THE COURT:

OKAY.

Temperature

tense

Key Quotes (4)

Johnnie Cochran

THIS IS NOT ANYBODY'S LIVING ROOM, AND MARCIA IS AN EXCELLENT LAWYER AND WE DON'T NEED THAT.

Cochran's backhanded compliment while dressing down opposing counsel — classic Cochran rhetorical move.

Marcia Clark

I SAID TO THE WITNESS ONE -- JUST ONE MORE QUESTION BECAUSE IT LOOKED LIKE SHE WAS GOING TO START CRYING AGAIN. I JUST WANTED TO COMPLETE THE DIRECT SO THAT SHE COULD COMPOSE HERSELF FOR CROSS.

Clark's explanation reveals the witness was emotionally distressed; she was managing the witness's state to get through direct examination.

Johnnie Cochran

HOW MANY TIMES DOES SHE HAVE TO SHOW THE PANTS, THE BLACK PANTS AND WHITE SHIRT? TO EVERY WITNESS UNTIL THEY START CRYING? OR TO END WITH THAT PHOTOGRAPH, THAT PHOTOGRAPH IS NOT THE WAY -- THAT LAST PHOTOGRAPH, JUDGE, IS RIGHT OVER THE EDGE AGAIN.

Cochran argues Clark is using photographs strategically to emotionally manipulate witnesses and the jury.

Lance A. Ito

MISS CLARK, NO MORE PRIVATE CONVERSATIONS WITH THE WITNESS OVER THERE.

The judge's ruling — sustained in effect, though framed as a practice directive rather than a formal ruling.

Evidence (2)

Informal

Black pants and white shirt — clothing items shown repeatedly to witnesses

challenged (Cochran objects to cumulative/inflammatory use)

Informal

Crime scene envelope — the witness reportedly wrote on a similar envelope and Clark sought to link her writing to the crime scene envelope

discussed; Ito limits witness to saying 'it looks like the envelope'

Notable Exchanges (2)

Johnnie Cochran•Marcia Clark

Cochran accused Clark of mouthing words to the witness; Clark said she spoke audibly to reassure the witness. Cochran countered that it was inaudible whispering visible to the jury.

heated

Johnnie Cochran•Lance A. Ito

Cochran argued the crime scene envelope photograph was 'right over the edge' since the witness was never at the crime scene; Ito sided with the defense's practical limit, ruling the witness could only say the envelope 'looks like' what she remembered.

strategic

Witness Demeanor

(IT LOOKED LIKE SHE WAS GOING TO START CRYING AGAIN — per Clark's account at sidebar)

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 4689 • 18 utterances

Criminal Trial

Department 103