Sidebar: motion procedures and admissibility

📄 Sidebar: motion procedures and admissibility — Wednesday, January 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\11\SIDEBAR-MOTION-PROCEDURES-AND-.DOC

TRIAL

▲ Day 1 of 167

◀ Motion: specific incidents and expert testimony Afternoon recess ▶

Date: Wednesday, January 11, 1995 • Utterances: 50

A sidebar during the domestic violence evidence hearing where the prosecution sought to introduce a Battered Woman Syndrome (BWS) expert and oversized charts. Cochran challenged the need for the expert, the size of the exhibits, and the fact that the expert was Canadian, while Judge Ito previewed skepticism about BWS admissibility under California Evidence Code section 1107. The session ended inconclusively, with Ito tabling the expert question until fundamental admissibility hurdles were cleared.

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

# 2 THE COURT:

MR. COCHRAN, DO YOU WANT TO LODGE SOME SORT OF OBJECTION?

# 3 MR. COCHRAN:

FIRST OF ALL, I WANT TO SAY, YOUR HONOR, WHEN I WAS IN THE D.A.'S OFFICE IN 1978 I WAS THE FIRST CHAIRMAN IN THIS COUNTY OF THE DOMESTIC VIOLENCE COUNSEL AND I HOPE THIS ISN'T THE END RESULT OF ALL MY WORK.

# 4 MS. BODIN:

YOU WILL BE PROUD.

# 5 MR. COCHRAN:

I HEARD FROM MR. GORDON, AND WE HAVE SEEN THE EXHIBIT NOW, YOUR HONOR, AND IF THE EXHIBITS ARE FOR YOUR HONOR, THERE IS NO INDICATION YOUR HONOR HAS ANY PROBLEM SEEING. AS YOU SAID BACK IN CHAMBERS, I HAVE NO OBJECTION TO YOU SEEING EVERYTHING AND PERUSING EVERYTHING. I DON'T KNOW WHY THEY ARE SO BIG AT THIS POINT.

# 6 THE COURT:

UH-HUH.

# 7 MR. COCHRAN:

I DON'T THINK YOU NEED THEM AND THE JURY IS NOT HERE. THAT IS MY FIRST CONCERN.

# 8 THE COURT:

MAYBE IT IS A COMMENT BY THE DISTRICT ATTORNEY'S OFFICE ON MY BLISTERING LACK OF ABILITY TO COMPREHEND THEIR ARGUMENTS.

KEY QUOTE

# 9 MR. COCHRAN:

I WOULD BE VERY SURPRISED IF YOU DIDN'T FULLY UNDERSTAND THEIR ARGUMENT. THEY ALSO PURPORT TO CALL OR TALK ABOUT CALLING AN EXPERT. THEY SEARCHED THIS ENTIRE COUNTRY AND COULDN'T FIND ANYBODY IN THE UNITED STATES AND THEY SOME CHARTS THERE WHICH I HAVE A QUESTION OF RELEVANCY.

# 10 THE COURT:

BUT AFTER NAFTA WE CAN GO ANYWHERE WE WANT.

# 11 MR. COCHRAN:

I SUPPOSE YOU CAN, BUT I DON'T KNOW IF OUR JURY WILL RELATE TO A CITIZEN FROM THE NORTH, I GUESS HE COULD, BUT THIS MAN IS FROM CANADA.

# 12 MR. GORDON:

THAT SHOULD BE BETTER.

# 13 MR. COCHRAN:

IF HE IS GOING TO CALL EXPERT TESTIMONY, THEN I THINK WE NEED AN OFFER OF PROOF ON THAT. I MEAN, THERE IS NO SHOWING THAT THIS COURT DOESN'T UNDERSTAND THIS IS A MURDER CASE AND I DON'T UNDERSTAND -- THEY HAVE GOT THIS THEORY AND I THINK THAT SOMEBODY USED THE WORDS "INSULTING" AND THE PROSECUTION WOULDN'T INSULT YOU, I KNOW, BUT THERE IS FAR FROM ANY SHOWING THAT YOU NEED ANY HELP FROM AN EXPERT REGARDING THE BATTERED WOMAN'S SYNDROME, THE WHOLE CONCEPT OF HELPLESSNESS AND ALL THOSE THINGS. SO I THINK WE NEED AN OFFER PROOF AND I'M GOING TO ASK FOR ONE AT THIS POINT BECAUSE I'M REALLY CONCERNED ABOUT, JUDGE, THIS IS GOING OUT OVER THE AIRWAVES AND THEY ARE FURTHER PREJUDICING THE PUBLIC. IT WON'T AFFECT OUR JURY NOW BUT IT IS IRRELEVANT AND IMMATERIAL UNLESS IT HELPS YOU OUT. YOU ARE MAKING THIS DECISION.

# 14 MR. DARDEN:

IS THAT A LEGAL OBJECTION AT THIS POINT, THAT WE MIGHT PREJUDICE THE PUBLIC?

# 15 MR. COCHRAN:

YES, IT IS, BECAUSE IT IS IRRELEVANT AND IMMATERIAL IF IT IS JUST FOR THE PUBLIC CONSUMPTION.

# 16 THE COURT:

MR. GORDON.

# 17 MR. GORDON:

FIRST OF ALL, THE JURY IS SEQUESTERED, SO THE NOTION OF THE PREJUDICE I DON'T THINK THERE IS ANY LEGAL CONCERN WHATSOEVER. SECONDLY, WITH REGARD TO THE EXPERT TESTIMONY, WE'VE HEARD AN ENTIRE ARGUMENT BASED TODAY THAT ALL WE NEED TO DO IS SHOW A SIMILAR CONNECTION BETWEEN CERTAIN ACTS WITH REGARD TO INTENT, DESIGN OR MOTIVE, AND THAT IS EXACTLY, EXACTLY WHAT THIS TESTIMONY GOES TO SHOW. AND THIS EXPERT WILL EXPLAIN HOW THESE ACTS ARE ABSOLUTELY LINKED, ABSOLUTELY PUT TOGETHER, HAVE THE SAME DESIGN, THE SAME INTENT AND THE SAME MOTIVE. THAT IS WHAT WE WERE REQUESTED TO DO AND WE ARE RESPONDING TO THAT REQUEST. WITH REGARD TO THE CHART SIZE, I DON'T HAVE TO RESPOND TO THAT HERE. I ASKED SOMEBODY TO DO A CHART, THAT IS WHAT CAME BACK. IT IS NOT MEANT TO INSULT THE COURT AT ALL.

# 18 THE COURT:

I'M SURE YOU ARE PLANNING TO USE IT FOR A DIFFERENT AUDIENCE SOME TIME LATER.

# 19 MR. GORDON:

I THINK THAT IS WHAT IT IS, SO WE DON'T HAVE TO DO IT A SECOND TIME.

# 20 THE COURT:

I'M GOING TO DIRECT YOU TO TURN THE EASEL SO IT FACES ME SO IT IS NOT IMMEDIATELY ACCESSIBLE TO THE PHOTOGRAPHERS IN THE BACK.

# 21 MR. GORDON:

THAT IS WHAT I INTENDED TO DO WITH THIS.

# 22 THE COURT:

I AM THE ONLY ONE THAT NEEDS TO SEE THIS.

# 23 MR. DARDEN:

BEFORE WE LEAVE SIDE BAR, CAN I JUST SHOW COUNSEL THE '89 PHOTOGRAPHS? AND THEY HAVE JUST BEEN DELIVERED JUST NOW.

# 24 MR. BAILEY:

DO YOU WANT TIME TO ENHANCE --

# 25 MR. COCHRAN:

JUST LIKE IN THE MOVIES, JUST RAN IN WITH THESE.

# 26 MR. DARDEN:

I'VE GOT JUICE IN THE D.A.'S OFFICE NOW, DIDN'T YOU KNOW?

# 27 MR. COCHRAN:

WE HAVE JUICE; YOU DON'T HAVE JUICE.

KEY QUOTE

# 28 MR. GORDON:

I JUST WANT TO FINISH THE OBJECTION. COUNSEL HAS JUST FINISHED MAKING AN ARGUMENT ABOUT THE ACTS THAT HE HAS DESCRIBED AND OBVIOUSLY WE ARE GOING TO USE -- USE OUR TERMS OF ADVOCACY TO DESCRIBE THEM. THEY ARE THINGS IN A NORMAL MARRIAGE DON'T REPRESENT. A LOT OF ARGUMENTS HAVE BEEN MADE WITHOUT ANY KIND OF EMPIRICAL DATA AT ALL. THE COURT SAID IT COULD CONSIDER EMPIRICAL DATA. I THINK IT IS BETTER TO BRING IN A SOURCE WHO IS VERY FAMILIAR --

# 29 THE COURT:

LET'S SEE -- WHETHER WE GET TO THAT THE ISSUE IS WHETHER OR NOT BWS IS GOING TO BE ADMISSIBLE, SO WE HAVE A FUNDAMENTAL HILL WE HAVE TO GET OVER BEFORE WE GET TO THAT.

# 30 MR. COCHRAN:

1107.

# 31 MR. GORDON:

ACTUALLY I THINK THERE IS TWO ISSUES, YOUR HONOR. I THINK YOU ARE RIGHT, ONE IS BWS OR ANY TESTIMONY EXPERT TESTIMONY WITH REGARD TO BATTERING ADMISSIBLE IN THE TRIAL, AND I WILL CERTAINLY ADDRESS THAT, BUT THERE IS A SECOND STAGE WHICH IS THE USE TO HELP ANY -- TO ASSESS THE TRIER OF FACT IN THIS STAGE FOR THE PURPOSE OF THIS MOTION TO UNDERSTAND THE CONNECTIONS. AND AT THIS POINT THAT IS WHAT I'M OFFERING IT FOR, IS TO EXPLAIN THE EVIDENCE HERE.

# 32 THE COURT:

ALL RIGHT. THE PROBLEM YOU ARE GOING TO HAVE, THOUGH, AND THIS IS NOT A RULING, JUST AN OBSERVATION, BUT THE STATUTE DOES SAY IT IS NOT ADMISSIBLE TO PROVE THAT THE PERSON DID THIS ACT THAT WE ARE ON TRIAL.

# 33 MR. GORDON:

I UNDERSTAND.

# 34 THE COURT:

SO YOU HAVE SOMEWHAT OF A RELEVANCE -- I MEAN, I ASSUME YOU ARE GOING TO MAKE AN ARGUMENT THAT BWS IS ADMISSIBLE TO EXPLAIN THE VICTIM'S CONDUCT AFTER THE '89 INCIDENTS AND DURING THE COURSE OF THE '93 INCIDENTS, I ASSUME.

# 35 MR. GORDON:

I'M GOING TO EXPLAIN BWS.

# 36 THE COURT:

THAT IS SORT OF PRETTY LIMITED PURPOSE.

# 37 MR. GORDON:

I'M GOING TO BE ARGUING 1107 WITH REGARD TO LEGISLATIVE INTENT. MISS BODIN, WHO WAS PRESENT DURING EVERY HEARING ON THAT STATUTE, WROTE A MAJORITY OF THE AMENDMENTS IN THAT STATUTE, IS HERE THAT WILL DEFINITELY, DEFINITELY RESPOND TO THAT WHEN I GET TO THAT POINT.

# 38 THE COURT:

ALL RIGHT.

# 39 MR. GORDON:

THAT IS NOT WHAT THE EXPERT IS BEING OFFERED FOR RIGHT NOW.

# 40 THE COURT:

AT THIS POINT LET'S TURN THE PLACARDS TOWARD THE COURT, SINCE IT IS NOT FOR PUBLIC CONSUMPTION.

# 41 MR. COCHRAN:

AT THIS POINT ALSO I THINK THE EXPERT SHOULD BE EXCUSED. HE IS NOT NEEDED YET, SO I WOULD ASK THAT HE BE EXCUSED IF THEY ARE GOING TO MAKE SOME FURTHER ARGUMENT ABOUT WHAT HE IS GOING TO STATE, AND I WOULD LIKE FOR HIM TO NOT WATCH TELEVISION AND BE EXCUSED. HE IS NOT A FAMILY MEMBER. WE DON'T THINK THAT IS APPROPRIATE.

# 42 THE COURT:

THIS TYPE OF EXPERT TESTIMONY, THOUGH -- I MEAN, WE KNOW WHAT THE FACTS OF THIS CASE ARE AND STATISTICS AREN'T GOING TO CHANGE.

# 43 MR. COCHRAN:

SO --

# 44 THE COURT:

I DECLINE THAT INVITATION.

# 45 MR. GORDON:

CAN WE CALL HIM AT THIS TIME, YOUR HONOR?

# 46 MR. COCHRAN:

HOW CAN YOU CALL HIM?

# 47 THE COURT:

WE NEED TO GET TO FUNDAMENTALS BEFORE WE GET TO THAT.

# 48 MR. COCHRAN:

THAT MAY NOT BE TODAY, I DON'T THINK.

# 49 MR. GORDON:

OKAY.

# 50 (PAGES 10626 THROUGH 10633, VOLUME 68A, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)

Temperature

light

Key Quotes (4)

Lance A. Ito

MAYBE IT IS A COMMENT BY THE DISTRICT ATTORNEY'S OFFICE ON MY BLISTERING LACK OF ABILITY TO COMPREHEND THEIR ARGUMENTS.

Ito deflects Cochran's complaint about the oversized charts with dry self-deprecating humor, showing his characteristic wit during procedural wrangling.

Johnnie Cochran

WE HAVE JUICE; YOU DON'T HAVE JUICE.

Cochran reclaims the 'Juice' nickname — OJ's moniker — in a sharp comeback to Darden's boast, one of the more memorable zingers of the trial.

Lance A. Ito

THE STATUTE DOES SAY IT IS NOT ADMISSIBLE TO PROVE THAT THE PERSON DID THIS ACT THAT WE ARE ON TRIAL.

Ito telegraphs the core legal obstacle facing the prosecution's BWS theory before any ruling is made — a significant preview of the admissibility fight to come.

Johnnie Cochran

THIS IS GOING OUT OVER THE AIRWAVES AND THEY ARE FURTHER PREJUDICING THE PUBLIC. IT WON'T AFFECT OUR JURY NOW BUT IT IS IRRELEVANT AND IMMATERIAL UNLESS IT HELPS YOU OUT.

Cochran argues that televised expert testimony with no jury present is purely for public consumption — an unusual but revealing objection about the media dimensions of the trial.

Evidence (2)

Informal

Large charts/placards prepared by the prosecution to illustrate BWS connections between prior acts

Discussed; Ito orders them turned to face only the court, away from cameras

Informal

1989 photographs of Nicole Brown Simpson (domestic violence incident)

Delivered to counsel during the sidebar and shown to defense; not yet formally introduced

Notable Exchanges (4)

Christopher Darden•Johnnie Cochran

After Darden says 'I've got juice in the D.A.'s office now,' Cochran fires back 'We have juice; you don't have juice,' reclaiming OJ's nickname.

light

Lance A. Ito•Johnnie Cochran

Cochran questions whether a Canadian expert will relate to the jury; Ito jokes 'after NAFTA we can go anywhere we want.'

light

Lance A. Ito•Scott Gordon

Ito remarks the oversized charts look intended 'for a different audience some time later,' implying they were made for post-trial media use. Gordon essentially concedes the point.

revealing

Scott Gordon•Lance A. Ito

Gordon argues the BWS expert serves two purposes: admissibility at trial under 1107 and helping the trier of fact assess the motion. Ito pushes back, noting the statute bars using BWS to prove the charged act.

strategic

Light Moments (4)

Lance A. Ito

Ito jokes that the prosecution's giant charts are a commentary on his 'blistering lack of ability to comprehend their arguments.'

Johnnie Cochran

After NAFTA is invoked to justify a Canadian expert, Cochran wonders aloud whether the jury will 'relate to a citizen from the North.'

Johnnie Cochran

Cochran sarcastically notes the 1989 photos were delivered at the last minute 'just like in the movies.'

Johnnie Cochran

The 'juice' exchange — Darden claims clout, Cochran retorts that OJ's nickname belongs to the defense.

Credibility Attacks (1)

⚔ Canadian BWS expert (unnamed)

Relevance/relatability challenge

Cochran questions whether a Canadian expert can relate to an American jury and whether the prosecution could find no U.S.-based expert, implying the witness is a second-rate choice.

Objections

2 objections (0 sustained, 0 overruled)

Proceeding 4368 • 50 utterances

Criminal Trial

Department 103