📄 Sidebar: photograph evidence — Thursday, February 9, 1995
📅 Feb 9 — Day 16
🛡️ Johnnie Cochran🏛️ Marcia Clark⚖️ Lance A. Ito
chain_of_custodycrime_scenepolice_procedure
Address:
C:\DEPT103\CRIMINAL\1995\FEB\9\SIDEBAR-PHOTOGRAPH-EVIDENCE.DOC
TRIAL
▲ Day 16 of 167

Sidebar: photograph evidence

Date: Thursday, February 9, 1995 • Utterances: 51
Cochran attempts to introduce three photographs (printed from a video) showing what appears to be a police officer walking through the Bundy crime scene, to counter the prosecution witness's testimony that the scene was secured and undisturbed. Clark objects vigorously that without a time foundation the photos are misleading — they could be from 12+ hours after the crime when the scene was no longer secured. Judge Ito ultimately decides to bring the jury in to view the underlying video.
1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)
2 THE COURT:

MAY I? THANK YOU.

3 MS. CLARK:

YES.

4 MR. DARDEN:

HE IS SLIPPERY.

5 MS. CLARK:

LIKE AN EEL.

6 MR. COCHRAN:

YOUR HONOR, WE SPEND ALL THIS TIME AND THIS IS THE EXACT SAME CRIME SCENE, ABSOLUTELY AND --

7 MS. CLARK:

THE ONLY PROBLEM WE HAVE WITH THIS, THE SAME ONE AS BEFORE, THAT IT IS ABOUT TWELVE HOURS LATER, AND TO SHOW THIS TO THIS JURY WITH THIS WITNESS AFTER THE CRIME SCENE IS NO LONGER SECURED IS NOTHING SHORT OF A LIE.

8 MR. COCHRAN:

THIS IS NOT -- ABSOLUTELY NOT. THIS IS NOT MISLEADING.

9 MS. CLARK:

IF COUNSEL CAN ESTABLISH A TIME FOUNDATION, WE CAN TALK ABOUT IT, BUT RIGHT NOW THERE IS NO FOUNDATION. THEY ARE MISLEADING.

10 MR. COCHRAN:

CAN I BE HEARD?

11 THE COURT:

SURE.

12 MR. COCHRAN:

OKAY. WE SPEND OURS THIS MORNING WITH HER TALKING ABOUT HOW THIS CRIME SCENE IS INVIOLATE, THAT PEOPLE DON'T GET IN THERE, THERE IS TAPE UP AND EVERYTHING.

WE HAVE EVIDENCE, WE HAVE VIDEOTAPES. SHE KNOWS PEOPLE ARE WALKING THROUGH THERE AND WE CAN IDENTIFY THESE GUYS. WE CAN IDENTIFY -- WE CAN IDENTIFY VANNATTER, LANGE, TWO OR THREE OTHERS THAT I DON'T RECALL RIGHT NOW WE WILL BE ABLE TO IDENTIFY WHO WERE WALKING AT THAT SCENE. NOW, THIS IS A UNIFORMED OFFICER. THIS -- THIS AREA WAS HOSED DOWN WHEN THEY FINISHED USING IT. IT WAS HOSED DOWN AT THAT POINT.

13 MS. CLARK:

NO.

14 MR. COCHRAN:

THIS IS WHAT I WAS ASKING BEFORE. THEY CAME BACK ON JULY 3RD AND TOOK THOSE OTHER PICTURES, THE SUPPOSEDLY IMPORTANT STUFF BY THE GATE. THEY CAN TRY ALL THEY WANT, JUDGE, BUT ULTIMATELY THE LAPD HAS TO RISE AND FALL ON ITS OWN. WE ALL LOVE THE LAPD, BUT THEY ARE AREN'T PERFECT AND I DON'T HAVE TO TELL YOU THAT. AT ANY RATE, YOUR HONOR, THIS PHOTOGRAPH, I HAVE A RIGHT, IT SEEMS, AFTER ALL SHE HAS DONE ASKING THIS PARTICULAR OFFICER IF HE SAW AN OFFICER LIKE THIS WALKING THROUGH THE SCENE. WE HAVE THIS ON VIDEO AND WE HAVE NOW PRINTED IT UP. THIS IS THE EXACT SAME SCENE THEY HAVE WITH SHOWING WALKING RIGHT UP. SHE IS TALKING ABOUT WALKING OVER HERE. THIS IS WHAT CROSS-EXAMINATION IS FOR.

15 MS. CLARK:

CROSS-EXAMINATION IS NOT TO MISLEAD.

16 THE COURT:

WAIT, WAIT, WAIT, WAIT. WHAT I HAVE HERE ARE THREE PHOTOGRAPHS WHICH HAVE NOT YET BEEN MARKED. THEY BEAR NUMBERS 57, 58 AND 59 IN THE UPPER RIGHT-HAND CORNER. 57 APPEARS TO BE AT THE SIDEWALK LEADING INTO THE WALKWAY. THERE -- YOU CAN SEE FROM BELOW THE KNEES DOWN, APPEARS TO BE DARK PANTS AND DARK SHOES. NO. 58 IS -- APPEARS TO BE VIRTUALLY THE SAME LOCATION, HOWEVER, IT SHOWS FROM ABOUT MID-BUTTOCKS DOWN AND THE NEXT STEP ON TO THE WALKWAY; HOWEVER, IT IS DIFFICULT TO TELL IF THIS IS SOMEBODY IN UNIFORM OR SOMEBODY WEARING A SUIT JACKET BECAUSE YOU CAN'T TELL HERE. IT APPEARS TO BE A SUIT JACKET.

17 MR. COCHRAN:

I WILL REPRESENT TO THE COURT THESE PICTURES ARE TAKEN IN SEQUENCE FROM THE VIDEO. THIS IS THE SAME OFFICER AND I CAN SHOW YOU. I WILL BE MORE THAN HAPPY TO SHOW YOU.

18 MS. CLARK:

IF COUNSEL KNOWS ALL THAT, PERHAPS COUNSEL CAN SUPPLY US WITH THE TIME AND THE DATE THAT THIS OCCURRED.

19 MR. DARDEN:

OR EVEN THE VIDEO.

20 MR. COCHRAN:

WE HAVE THE VIDEO.

21 THE COURT:

WAIT, WAIT, BOTH SIDES. ALL RIGHT. 59 APPEARS TO SHOW THE REAR FROM FEET TO JUST BELOW THE ARMPITS OF A -- APPEARS TO BE A POLICE OFFICER FROM THE STYLE OF UNIFORM, THE T-SHIRT THAT ISN'T QUITE BIG ENOUGH OR TOO BIG.

22 MR. COCHRAN:

TOO BIG.

23 THE COURT:

AND A SAM BROWNE WITH APPROPRIATE GUN, RADIO, WHAT APPEARS TO BE A TEAR GAS CANNISTER AND HANDCUFFS, BUT IT ALSO APPEARS TO BE DAYLIGHT.

24 MR. COCHRAN:

DAYLIGHT, BUT, JUDGE, I HAVE -- THIS CRIME SCENE, THE CORONER DOESN'T COME FOR TEN HOURS.

25 THE COURT:

THE QUESTION IS -- THERE IS ONLY ONE THAT IS APPROPRIATE. FROM THESE THREE PHOTOGRAPHS CAN YOU IDENTIFY THIS OFFICER?

26 MR. COCHRAN:

YES.

27 MS. CLARK:

OBVIOUSLY NO ONE CAN. THIS IS SO DISINGENUOUS. THIS IS SO DISINGENUOUS. LOOK AT THIS.

28 MR. COCHRAN:

I SHOWED IT TO THEM FIRST. THAT IS NOT DISINGENUOUS.

29 MS. CLARK:

THIS IS EXTREMELY HIGHLY AND COMPLETELY DISINGENUOUS. THERE IS NO WAY THAT ANYONE COULD IDENTIFY WHO THIS IS. IF IT WERE MY HUSBAND I COULDN'T IDENTIFY HIM.

KEY QUOTE
30 THE COURT:

IS THERE AN OFFER OF PROOF THAT YOU CAN SHOW ME DATE AND TIME WHEN THIS WAS TAKEN?

31 MR. COCHRAN:

YES. IT WAS TAKEN -- AS NEAR AS WE CAN TELL IT WAS TAKEN ON JUNE 13. WE WILL BE ABLE TO LINK IT UP.

32 MS. CLARK:

BELIEF IS NOT AN OFFER OF PROOF. LET'S HEAR IT.

33 MR. COCHRAN:

HERE IS THE OFFER OF PROOF. WE ALSO HAVE A VIDEO. YOU HAVE SEEN IT BEFORE. THIS WAS TAKEN FROM THE VIDEO. I WILL BE JUST AS GLAD TO SHOW YOU THE VIDEO OF THIS GUY WALKING THROUGH THERE. WE PRINTED THESE UP DURING THE LUNCH HOUR AND TOOK THESE OFF THE VIDEO SO I COULD SHOW COUNSEL BEFORE I WHIPPED OUT THE VIDEO, BUT AGAIN, THIS IS PART OF HAVE VIDEO. THEY GO THROUGH ALL THE TROUBLE TRYING TO SHOW IT. JUDGE, THEY THINK THEY ARE GOING TO BE ABLE TO TRY THIS CASE ON THEIR THEORY WHEN THEY KNOW THESE GUYS WERE WALKING THROUGH. THIS IS ON THE 13TH. AFTER THAT THEY WASHED DOWN THE SCENE. TEN HOURS TO CALL THE CORONER. AND JUDGE, IT IS ABSOLUTELY FALSE FOR HER TO GET UP THERE AND GO TEN TIMES. TALKING ABOUT DISINGENUOUS. THAT THERE IS NOBODY WALKING THROUGH THIS AREA. TIPPY-TOEING AROUND AND THERE IS A PICTURE OF THIS GUY WALKING RIGHT THROUGH THE MIDDLE OF THE SCENE.

34 THE COURT:

UNLESS YOU CAN SHOW ME, GIVE ME A GOOD FAITH OFFER OF PROOF THAT YOU CAN SHOW ME DATE AND TIME WHEN THAT WAS DONE --

35 MR. COCHRAN:

PICTURE WAS TAKEN?

36 THE COURT:

YEAH.

37 MR. COCHRAN:

IF YOU GIVE ME A FEW MINUTES, I WILL BE ABLE TO DO THAT. YEAH. I WILL RUN BACK THROUGH THE VIDEO, BECAUSE THIS WAS TAKEN FROM THE VIDEO. OR I WILL JUST ASK YOU TO LET ME SHOW THE VIDEO AND I WILL SHOW THE VIDEO AT THIS POINT.

38 MS. CLARK:

DOES IT SHOW WHAT TIME IT WAS TAKEN?

39 MR. COCHRAN:

NO, IT DOESN'T SHOW WHAT TIME IT WAS TAKEN.

40 MS. CLARK:

THAT IS THE WHOLE ISSUE. THE TIME MAKES IT IRRELEVANT.

41 MR. COCHRAN:

ARE WE GOING TO FOOL SOMEBODY HERE THAT IT WAS NOT TAKEN FROM THEIR SCENE? I HAVE FOUND IN THE SAME VIDEO -- IF YOU SAW THE VIDEO IT WOULD HELP YOU TO UNDERSTAND. THEY ARE JUST BEGINNING TO MARK THINGS ON THE 13TH. THIS IS THE CRIME SCENE.

42 MS. CLARK:

AND THE PROBLEM WITH THAT VIDEO, IT WAS CUT THIRTEEN OR FOURTEEN TIMES, AS THE COURT COULD SEE, AND THIS IS AN ABSOLUTE FRAUD WE ARE GOING TO PERPETRATE ON THE JURY. WE ARE GOING TO SHOW THEM PICTURES FROM A TIME WE DON'T EVEN KNOW AFTER EVERYTHING HAS BEEN PRESERVED AND COLLECTED AND TRY TO SHOWN THE SCENE WAS CONTAMINATED WHEN IN FACT THIS WAS PRESERVED AND COLLECTED BEFORE THE --

43 THE COURT:

I TAKE IT THIS IS A 352 OBJECTION?

44 MS. CLARK:

THAT'S RIGHT.

45 MR. COCHRAN:

I WANT TO BE ABLE TO SHOW THE ENTIRE VIDEO TO THE JURY AT THIS POINT. THIS IS CROSS-EXAMINATION.

46 MS. CLARK:

SOME FOUNDATION, THOUGH, AND COUNSEL HAS NONE AND WE STILL DON'T HAVE A COPY OF THAT VIDEO.

47 THE COURT:

OKAY. LET'S --

48 MR. COCHRAN:

WE PROVIDED THAT.

49 THE COURT:

ALL RIGHT. I'M GOING TO ASK THE JURORS TO STEP IN SO THAT WE CAN SEE THIS VIDEO.

50 MS. CLARK:

THIS IS THE SAME VIDEO, YOUR HONOR, THE ONE WE DIDN'T HAVE FOUNDATION FOR BEFORE.

51 THE COURT:

MAYBE WE DO.

Temperature

tense

Key Quotes (5)

Marcia Clark
TO SHOW THIS TO THIS JURY WITH THIS WITNESS AFTER THE CRIME SCENE IS NO LONGER SECURED IS NOTHING SHORT OF A LIE.
Clark's sharpest framing of the foundation problem — the photos' value hinges entirely on when they were taken.
Marcia Clark
THIS IS EXTREMELY HIGHLY AND COMPLETELY DISINGENUOUS. THERE IS NO WAY THAT ANYONE COULD IDENTIFY WHO THIS IS. IF IT WERE MY HUSBAND I COULDN'T IDENTIFY HIM.
Clark escalates to personal hyperbole to make the identification problem vivid; illustrates how heated this sidebar became.
Marcia Clark
THIS IS AN ABSOLUTE FRAUD WE ARE GOING TO PERPETRATE ON THE JURY.
Among the strongest language Clark uses in the trial — accusing Cochran of planning to defraud the jury, not merely mislead them.
Johnnie Cochran
JUDGE, IT IS ABSOLUTELY FALSE FOR HER TO GET UP THERE AND GO TEN TIMES TALKING ABOUT DISINGENUOUS — THAT THERE IS NOBODY WALKING THROUGH THIS AREA. TIPPY-TOEING AROUND AND THERE IS A PICTURE OF THIS GUY WALKING RIGHT THROUGH THE MIDDLE OF THE SCENE.
Cochran's core argument: the photos directly contradict the prosecution's narrative of an inviolate crime scene.
Christopher Darden
HE IS SLIPPERY.
Offhand remark (about a witness just stepped down) that Clark immediately echoes — rare moment of levity opening an otherwise combative sidebar.

Evidence (2)

null
Three photographs numbered 57, 58, and 59 in upper right corner — still frames printed from a video, showing a figure (possibly a uniformed police officer) walking through the Bundy crime scene walkway.
Offered by defense during cross-examination; objected to by prosecution for lack of time/date foundation; not admitted at this juncture
null
Video footage of the Bundy crime scene on or around June 13; prosecution notes it was cut 13-14 times. Defense claims the three photographs were extracted from this video.
Cochran offers to play for judge and jury; Ito rules jurors will be brought in to view it

Notable Exchanges (3)

Marcia ClarkJohnnie Cochran
Extended dispute over whether the photos can establish that police walked through the crime scene. Clark insists there is no time foundation and calls the effort 'disingenuous' at least three times; Cochran responds that the photos are from the June 13 video and that the prosecution's own theory is contradicted by visible foot traffic.
heated
Lance A. ItoJohnnie CochranMarcia Clark
Ito methodically describes each photograph on the record (clothing details, Sam Browne belt, tear gas canister, daylight), then asks whether anyone can actually identify the officer from them — implicitly siding with the prosecution's foundation concern while keeping the door open via the video.
procedural/strategic
Christopher DardenMarcia Clark
As the sidebar opens, Darden mutters 'HE IS SLIPPERY' about the departing witness and Clark finishes the thought — 'LIKE AN EEL' — a rare moment of wry partnership.
light

Light Moments (1)

Christopher Darden / Marcia Clark
Darden: 'HE IS SLIPPERY.' Clark: 'LIKE AN EEL.' — casual tag-team commentary on a witness, delivered before the sidebar turned combative.

Credibility Attacks (1)

⚔ LAPD / crime scene officers (Vannatter, Lange, unnamed uniformed officer)
Photographic/video evidence contradicting testimony
Cochran argues the photos show a uniformed officer walking directly through the secured crime scene, directly contradicting the prosecution witness's testimony that the scene was inviolate and carefully protected. He also references that the scene was 'hosed down' afterward and that the coroner wasn't called for ten hours.

Objections

1 objections (0 sustained, 0 overruled)
Proceeding 4800 • 51 utterances
Criminal Trial
Department 103
⚖️ Start
📂 FEB 9, 1995 📄 Sidebar: photograph evidence
FEB 9, 1995 KRT DvH TD