YES, YOUR HONOR. THANK YOU. GOOD MORNING, YOUR HONOR. YOUR HONOR, WE HAVE GIVEN THE COURT A CHART BECAUSE THE COURT HAD AT THE LAST MOMENT IN COURT YESTERDAY ASKED US TO SPECIFICALLY TALK ABOUT SPECIFIC ACTS, AND I HAVE AN EXTRA IF THE COURT NEEDS IT.
WHAT THIS CHART DOES, AND THE DEFENSE IS ALSO IN POSSESSION OF IT, IDENTIFIES TO THE COURT THOSE INCIDENTS WHICH WE BELIEVE ARE PROVABLE THAT THE COURT SHOULD SPECIFICALLY RULE ON IN THIS HEARING. HOWEVER, THERE ALREADY OTHER INCIDENTS THAT APPEAR ON THIS CHART AND YOU WILL SEE THAT THEY ARE LINED OUT. WE CONTINUE TO INVESTIGATE THOSE, AND I WILL SAY THIS AGAIN, WE ARE GOING TO INVESTIGATE THEM, WE ARE INVESTIGATING THEM. IF WE GET INFORMATION ON THEM, WE WOULD SEEK AT A LATER TIME TO PRESENT EVIDENCE ON THOSE INCIDENTS. FURTHERMORE, WE ARE GIVING OUR EXPERT THOSE -- THOSE INCIDENTS TO LOOK IT IN TERMS OF FORMING AN EXPERT OPINION. ADDITIONALLY, WE WOULD PROBABLY AND WE WILL, WE WILL SEEK TO CROSS WITNESSES WHEN IT IS APPROPRIATE WITH REGARD TO THOSE INCIDENTS WITH THAT IN MIND. AND HAVING SAID THAT, WE HAVE LINED OUT SOME OF THE -- THE INCIDENTS THAT WE HAD DISCUSSED YESTERDAY AND WE USED THE COURT'S NUMBERING SCHEME FROM THE CHART THAT THE COURT HAD GRACIOUSLY GIVEN US SEVERAL DAYS AGO. I DON'T KNOW IF THE COURT WISHES ME TO ONCE AGAIN DISCREETLY AND QUICKLY DISCUSS EACH ONE OF THOSE INCIDENTS. I CAN DO THAT OR I CAN CONTINUE WITH AN ARGUMENT. HOW WOULD YOU LIKE ME TO PROCEED, YOUR HONOR?
BECAUSE OF THE WIDE CIRCULATION OF WHAT THE PROSECUTION DID YESTERDAY IN LAYING OUT ALL THIS LAUNDRY LIST OF ALLEGATIONS, I THINK IT IS ONLY FAIR THAT THEY STATE FOR THE RECORD THE ONES THAT THEY ARE NOT GOING TO PROCEED ON, AND I WOULD ASK THAT, SPECIFICALLY LIKE REYNOZA.
KEY QUOTEALL RIGHT. I'M JUST HAVING MY CLERK MAKE ME AN EXTRA COPY SO I CAN WRITE ON ONE AND KEEP ONE FOR THE RECORD, BECAUSE ESSENTIALLY, MISS BODIN, WHAT YOU ARE INDICATING TO THE COURT IS THAT THE ITEMS THAT YOU HAVE LINED OUT ON YOUR CHART ARE THE ONES THAT YOU DO NOT AT THIS TIME PROPOSE TO PRESENT, CORRECT?
ALL RIGHT. SO FOR THE PURPOSES OF THE RECORD THEN, I'M GOING TO INCLUDE A COPY OF YOUR CHART IN THE COURT'S RULING AS AN APPENDIX.
FINALLY, YOUR HONOR, BEFORE I START GOING THROUGH THE INCIDENTS, THE COURT SHOULD KNOW THAT BY CROSSING THESE OUT WE ARE NOT COMMENTING ON THE TRUTH OF THESE WITNESSES OR THE UNTRUTH OF THEM OR THE CREDIBILITY OF ANY OF THE WITNESSES. WE ARE JUST SIMPLY SAYING AT THIS POINT THE COURT NEEDS TO MAKE A RULING AND THESE ARE THE RULINGS THAT WE ARE REQUESTING ON SPECIFIC INCIDENTS, BUT WE ARE NOT LIMITING OURSELVES WITH REGARD TO ANY FUTURE RULINGS THE COURT WOULD MAKE.
HAVING SAID THAT, USING THE CHART, GOING TO JUDGE'S INCIDENT NO. 3, THAT WOULD BE THE INCIDENT WHEN MRS. SIMPSON WENT TO THE HOME OF WAYNE HUGHES IN THE MIDDLE OF THE NIGHT AND SHOWED HIM A RED SPOT ON HER, AND WE -- EXCUSE ME. I'VE GOT A TERRIBLE COLD THE LAST COUPLE DAYS. I APOLOGIZE.
WE BELIEVE THAT THIS IS TANTAMOUNT TO AN EXCITED UTTERANCE. THERE IS PHYSICAL EVIDENCE AND THIS IS FROM AN EYEWITNESS WHO SAW HER WITH THIS RED SPOT. SHE HAD ASKED HIM TO PLEASE TALK TO THE DEFENDANT IN THIS CASE. IT IS AN EXAMPLE OF PHYSICAL VIOLENCE PER THE ZACK CASE. MOVING DOWN NOW TO JUDGE'S INCIDENT NO. 7, THAT IS THE LA CANTINA INCIDENT, THAT OCCURRED --
YOUR HONOR, I'M NOT CLEAR. I THOUGHT SHE WAS GOING TO INDICATE THE ONES SHE WAS NOT GOING TO GO ON.
INCIDENT NO. 1 WE ARE CROSSING OUT. THAT WOULD BE A JOURNAL ENTRY WITH REGARD TO AN INCIDENT HAPPENING IN SAN FRANCISCO WHEREIN THE DEFENDANT HIT THE VICTIM AND THREW HER CLOTHES DOWN ON THE FLOOR. NO. 2, A NEW YORK INCIDENT WHERE THE DEFENDANT HIT THE VICTIM IN PUBLIC WHERE SHE HAD TO ASK HELP FROM PASSERBYS -- PASSERBYS. NO. 3 I HAVE JUST TALKED ABOUT, THAT WOULD BE THE WAYNE HUGHES RED SPOT INCIDENT. NO. 4 WOULD BE THE INCIDENT IN THE WINE CLOSET, WHERE SHE WAS LOCKED IN THE WINE CLOSET AND WAS PHYSICALLY ASSAULTED BY THE DEFENDANT.
WE ARE, YES. NO. 5 JOURNAL ENTRY WE ARE WITHDRAWING WITH REGARD TO SAN JOSE TRACK INCIDENT AND THAT WAS WHERE SHE WAS HIT AND LEFT ON THE ROADSIDE BY THE DEFENDANT. NO. 6 WE ARE WITHDRAWING. THAT IS THE INCIDENT WHERE SHE WROTE A NOTE TO HERSELF AND THE DEFENDANT FOUND THE NOTE AND THEN HIT HER. NO. 7 WE ARE KEEPING.
YOUR HONOR, I MUST OBJECT. COUNSEL -- WE ARE IN COURT TO DETERMINE IT APPROPRIATE. IT SEEMS TO ME SHE OUGHT TO SAY "ALLEGED" INCIDENT. SHE DOESN'T KNOW WHETHER THAT HAPPENED OR NOT.
I JUST NEED TO NOW WHICH ONE OF THESE INCIDENTS YOU ARE WITHDRAWING. IF YOU ARE TELLING ME YOU ARE WITHDRAWING THE SAN JOSE TRACK INCIDENT, I KNOW WHICH ONE YOU ARE TALKING ABOUT.
YES. NO. 7. THE PEOPLE KNOW THAT WE CAN PROVE THIS. IT IS IMPORTANT BECAUSE IT SHOWS THAT THE DEFENDANT WAS PHYSICALLY VIOLENT AND IT IS EVIDENCE OF EMOTIONAL ABUSE, PHYSICAL ABUSE AND PROPERTY ABUSE. NO. 8, SMASHING OF PICTURES AT ROCKINGHAM, SHOWS PROPERTY DESTRUCTION. THERE ARE EYEWITNESSES TO THIS INCIDENT. NO. 9, THE INCIDENT WHERE THE DEFENDANT TOOK A BASEBALL BAT TO A WHITE MERCEDES BELONGING TO THE VICTIM, THERE ARE EYEWITNESSES, THERE ARE TWO OF THEM TO THIS. THE DEFENDANT MADE ADMISSIONS AND THERE WERE EXCITED UTTERANCES GIVEN BY NICOLE BROWN SIMPSON WITH REGARD TO THIS INCIDENT. THE BICYCLE INCIDENT INVOLVING DR. ALPERT, THAT WILL BE NO. 10 NOW AT THIS POINT ON THE LIST, WE BELIEVE THAT THAT IS EVIDENCE OF PHYSICAL VIOLENCE PER PEOPLE VERSUS ZACK AND THERE ARE EYEWITNESSES TO THAT WITH REGARD TO THE INJURIES AND ALSO THERE ARE MEDICAL RECORDS. NO. 11 IN THE COURT'S CHART, THIS WAS -- THIS WAS THE INCIDENT IN HAWAII WHERE THE DEFENDANT BECAME ENRAGED BECAUSE A GAY MAN KISSED HIS CHILD. WE BELIEVE THAT PER ZACK AND DANIELS IT IS AN EXAMPLE OF HUMILIATION AND THAT HE WAS ABUSIVE TO THE VICTIM AND MISTREATED HIS FAMILY. THERE WAS ALSO AN EYEWITNESS. THERE IS THE DISNEY ON ICE, NO. 12, WHEREIN THE DEFENDANT CALLED HER A FAT SLOB AND DENIGRATED HER WHEN SHE WAS PREGNANT. WE HAVE A WITNESS TO THAT, AL COWLINGS, AND IT IS EVIDENCE OF PHYSICAL VIOLENCE PER ZACK AND EMOTIONAL ABUSE PER DE MOSS AND THERE ARE EYEWITNESSES TO THIS.
THANK YOU, YOUR HONOR, AND I WILL. JUDGE'S INCIDENT NO. 13, 1989, NEW YEAR'S DAY. THIS OF COURSE IS VERY WELL DOCUMENTED. THERE ARE 1240 STATEMENTS. THERE ARE EYEWITNESSES. THERE ARE LETTERS WHERE THE DEFENDANT ADOPTS THE -- ADOPTS THE INCIDENT, NUMEROUS PIECES OF EVIDENCE. THE PEOPLE WOULD BE CROSSING OUT ON JUDGE'S NO. 14 ALSO RELATING TO THE 1989 NEW YEAR'S DAY INCIDENT. THE COURT HAD LISTED AS SEPARATE AS TO INCIDENT NO. 15, THE PRENUPTIAL LETTER. THE PEOPLE WOULD BE SEEKING TO ADMIT THAT AS A DOCUMENT THAT ADMITS THE INCIDENTS THAT OCCURRED ON NEW YEAR'S DAY OF 1989. STATEMENT TO KRIS JENNER WE CONSIDER A 1250 STATEMENT OF FEAR. IF THE COURT WOULDN'T MIND, THE COURT HAD SPECIFICALLY ASKED ME AT THE END OF YESTERDAY TO ADDRESS THE 1250 ISSUE AND AT THE END OF GOING THROUGH THIS CHART I'M GOING TO ARGUE THAT. JUDGE'S INCIDENT NO. 17, THAT WAS THE INCIDENT INVOLVING ALFRED ACOSTA, THE LIMOUSINE DRIVER. IT IS DEMONSTRATIVE OF PHYSICAL VIOLENCE AND THERE IS AN EYEWITNESS TO IT. JUDGE'S INCIDENT NO. 18, THAT IS THE INCIDENT THAT OCCURRED AT THE RED ONION, AND I MADE A MISTAKE YESTERDAY IN MY RELATION OF THE FACTS AND I WOULD LIKE TO CORRECT IT ON THE RECORD. I STATED THAT IT WAS THE MALIBU RED ONION AND IN FACT IT WAS THE SANTA ANA RED ONION. I WOULDN'T WANT THE WRONG RED ONION TO GET CREDIT FOR THIS SO I WANT TO MAKE SURE THE LOCATION IS CORRECT. NO. 19, STATEMENT BY D'ANNE LE BON, WE ARE CROSSING THAT OUT. STATEMENT OF THE VICTIM, I'M SORRY, TO D'ANNE LE BON, NO. 19, WE ARE CROSSING THAT OUT. NO. 20, THE INCIDENT WHERE THE DEFENDANT STATED HE CUT SOMEBODY'S HEAD OFF WITH REGARD TO SOMEONE ELSE DRIVING HIS WIFE'S CAR --
WITH REGARDS TO THAT ONE INCIDENT, I THINK IT IS IMPORTANT TO MAKE CLEAR THAT YOU ARE WITHDRAWING THAT ONE PARTICULAR INCIDENT, BECAUSE THE NEWS MEDIA WAS ABLAZE LAST NIGHT WITH THIS PARTICULAR INCIDENT AND I THINK IT SHOULD BE CLEAR ON THE RECORD THAT THE PROSECUTION WITHDRAWS THIS PARTICULAR INCIDENT.
YOUR HONOR, WOULD IT BE PROPER FOR THE COURT TO ASK THE DISTRICT ATTORNEY WHY THEY ARE WITHDRAWING THIS AT THIS TIME?
FURTHER, COULD THE COURT ALSO MAKE SURE THEY MENTION THE NAME OF THE ALLEGED WITNESS IN THIS INCIDENT ALSO.
SHE SAID THE REYNOZA INCIDENT, AS I RECALL, BUT LET'S SEE -- BUT IN ANY EVENT, THIS IS THE EDDIE REYNOZA INCIDENT, THE ALLEGED STATEMENTS MADE.
DOES THE COURT WISH ME TO MAKE ANY OTHER STATEMENT OTHER THAN WE ARE JUST WITHDRAWING IT AT THIS TIME? BUT IF WE HAVE OTHER COMPETENT PROOF AT A LATER TIME --
CORRECT. INCIDENT NO. 21 WE ARE KEEPING. THAT IS JUST SIMPLY THE FILING FOR A DIVORCE. THAT IS WELL-DOCUMENTED. JUDGE'S INCIDENT NO. 22, THAT IS THE INCIDENT AT MEZZALUNA WHERE THE DEFENDANT STARED AND MADE A COMMENT WITH REGARD TO NICOLE BROWN SIMPSON STILL BEING HIS WIFE. YOUR HONOR, COULD THE COURT DIRECT THE DEFENDANT NOT TO MAKE COMMENTS DURING MY ARGUMENT TO THE COURT?
YES, THANK YOU. JUDGE'S INCIDENT NO. 23 WITH REGARD TO AGAIN THE DEFENDANT SHOWING UP AT A RESTAURANT CALLED TRYST WHICH WE BELIEVE IS EVIDENCE OF STALKING AND SHOWS JEALOUSLY, AS DOES THE MEZZALUNA INCIDENT, WE WOULD INTEND TO KEEP THAT. JUDGE'S INCIDENT NO. 24, THIS IS THE INCIDENT INVOLVING THE DEFENDANT LOOKING THROUGH THE WINDOW OF NICOLE BROWN SIMPSON'S HOME ON GRETNA GREEN WAY WHERE HE SAW HER IN AN INTIMATE ACT.
MISS BODIN, I'M GOING TO ASK YOU AT THIS POINT, SINCE IT APPEARS ON YOUR LIST, THE SECOND PAGE, WHETHER YOU INTEND TO CONTINUE TO OFFER THOSE ITEMS THAT YOU'VE ALREADY DISCUSSED AND FLIP OVER THEN -- AT THIS POINT WE ARE TRYING TO SETTLE THE STATE OF THE RECORD AS TO WHAT IT IS YOU INTEND -- WHAT IT IS YOU INTEND TO WITHDRAW AT THIS POINT, SO LET'S JUMP AHEAD TO --
I AM INTERESTED IN THE ONES THAT YOU ARE WITHDRAWING, SO IT IS CLEAR WHAT WE ARE TALKING ABOUT, SO LET'S SKIP TO 36.
THOSE ARE ACTUALLY STATEMENTS, I BELIEVE, WITH REGARD TO STALKING AND THAT THE DEFENDANT WOULD KILL HER. WE ARE SEEKING TO WITHDRAW THAT STATEMENT.
JUDGE'S INCIDENT NO. 43, THAT WILL BE THE FROGMAN INCIDENT, THE PEOPLE WOULD SEEK TO -- THE PEOPLE ARE WITHDRAWING IT AT THIS POINT. INCIDENT NO. 44 WE ARE WITHDRAWING. VICTIM NO. 45 -- I MEAN SORRY, JUDGE'S INCIDENT NO. 45.
NO. 46. NOW, SKIPPING DOWN TO NO. 49 WITH REGARD TO THE VICTIM'S REFUSAL TO SEE THE DEFENDANT. WE ARE WITHDRAWING INCIDENT NO. 50. JUDGE'S INCIDENT NO. 51 TO BE WITHDRAWN. AND THERE ARE TWO SEPARATE INCIDENCES THAT WE HAVE INCLUDED THAT ON THE JUDGE'S LIST, AND YOU ARE SEEING THEM AT THE BOTTOM, WITH REGARD TO ASHTON STREET AND VICTORIA BEACH INCIDENTS, AND FINALLY ON THE LAST PAGE WE ARE SEEKING TO INCLUDE, IT WAS ADDED IN, IT WAS NOT ON YOUR LIST WITH REGARD TO THE SOJOURN CONTACTS.
ALL RIGHT. AND THE COURT, AT THE END OF YESTERDAY, AS I HAD PREVIOUSLY STATED A FEW MOMENTS AGO, HAD QUESTIONED THE PEOPLE WITH REGARD TO EVIDENCE CODE SECTION 1250 AND THE ENTRANCE OF HEARSAY STATEMENTS WITH REGARD TO FEAR. THE GENERAL RULE ON THIS IS THAT STATE OF MIND CAN COME IN WHEN THERE IS CONDUCT IN CONFORMITY AND THERE IS SOME SORT OF RELEVANCY TO THIS CASE. NOW, WE HAVE STATEMENTS MADE WITH REGARD TO FEAR, AND SPECIFICALLY THE STATEMENTS NOW THAT I'M HONING IN ON ARE THESE STATEMENTS AND THESE ARE VERY CLOSE IN TIME TO THE -- TO THE ACTUAL CRIME. THERE WAS A STATEMENT MADE TO BETSY ROCKETT WHEREIN THE VICTIM SAID "I'M AFRAID. HE IS PEEPING THROUGH MY WINDOW AND WEARING DISGUISES," AND THEN THERE ARE STATEMENTS MADE, WHICH WE FOUND OUT ABOUT YESTERDAY, TO A DOMESTIC VIOLENCE COUNSELOR AT SOJOURN STATING THE FEAR OF THE VICTIM AND THAT HE WAS STALKING HER AND THAT SHE WAS AFRAID AND CONFUSED. THOSE ARE VERY CLOSE IN TIME. THE STATEMENT TO SOJOURN WAS MADE WITHIN FIVE DAYS OF THE ACTUAL KILLING. THE STATEMENT MADE TO BETSY ROCKETT WAS MADE WITHIN TWO WEEKS -- TWO WEEKS BEFORE THE ACTUAL KILLING. I HAVE TWO ARGUMENTS TO MAKE TO THE COURT THIS MORNING WITH REGARD TO STATEMENTS OF FEAR. FIRST OF ALL, THOSE STATEMENTS OF FEAR ARE RELEVANT TO SHOW HOW THE CRIME WAS COMMITTED. THERE WAS A STATEMENT OF FEAR. AND THE VICTIM WOULD HAVE TO HAVE HAD CONFORMED HER CONDUCT AND THAT HAS TO BE RELEVANT TO AN ISSUE IN THE CASE. SHE STATED THAT SHE WAS AFRAID. AND LIKE THE FINCH CASE, IF SHE WAS AFRAID, SHE WOULD NOT HAVE GONE OUTSIDE ON THE NIGHT THAT THE MURDER WAS COMMITTED. SHE PARTICULARLY WOULD NOT HAVE GONE OUTSIDE, GIVEN THE DEFENDANT'S DEMONSTRATED POSSESSIVE RAGE WITH REGARD TO HER INVOLVEMENT WITH OTHER MEN. WE KNOW THAT MR. GOLDMAN WAS ON HIS WAY TO DELIVER GLASSES. THIS CRIME -- THIS CRIME AND THE WAY THAT IT WAS COMMITTED SHOWS THAT THE VICTIM WAS TAKEN BY SURPRISE, AND LIKE THE FINCH CASE THAT WE HAVE CITED IN OUR BRIEF, SHE -- WHAT WE ARE SAYING TO THE COURT IS THAT SHE WOULD HAVE -- NOT HAVE GONE THERE -- WOULD NOT HAVE GONE OUTSIDE IF SHE HAD KNOWN THAT THE DEFENDANT WAS OUT THERE, AND THAT IS ON ALL FOURS WITH THE FINCH CASE, WHERE IN THE FINCH CASE, WHAT THE -- WHAT THE VICTIM IN THAT CASE DID HAD EXPRESSED FEAR AND THEN WENT BACK TO HER RESIDENCE AND WAS ULTIMATELY KILLED IN HER RESIDENCE BY THE DEFENDANT. IT IS ON ALL FOURS WITH FINCH.
WITH REGARDS TO THE FACTS, TO SAY THAT IT IS ON ALL FOURS WITH FINCH, PART OF THE PROBLEM IS THAT THE FACTUAL BASIS FOR THAT ASSERTION I'M NOT CLEAR ON. THE VICTIMS' BODIES WERE FOUND AT THE BOTTOM OF THE STAIRWAY.
WHERE IS THAT IN RELATIONSHIP TO THE ACTUAL DOORWAY OF THE CONDOMINIUM BELONGING TO MRS. SIMPSON?
IF YOU RECALL, NONE OF THAT IN PARTICULAR, AS I RECALL, IS IN EVIDENCE AT THIS POINT.
ALL RIGHT. IN ADDITION, WE KNOW THAT THIS CRIME WENT UNDETECTED FOR A VERY SHORT PERIOD OF TIME, THAT THERE WAS NO SCREAMING THAT WAS HEARD BY THE NEIGHBORS, AGAIN SPEAKING TO THE ELEMENT OF SURPRISE. THE VICTIM EXPRESSED SO MUCH FEAR TO SO MANY PEOPLE AND SO CLOSE IN TIME TO THE MURDER THAT THESE EXPRESSIONS OF FEAR CAUSED HER TO ACT IN A CERTAIN WAY THAT IS RELEVANT TO THE WAY THAT THIS CRIME WAS COMMITTED.
AND THIS IS INFORMATION THAT A JURY SHOULD HEAR TO PERMIT THEM TO MAKE REASONABLE INFERENCES ABOUT THE WAY THE CRIME OCCURRED. MY SECOND ARGUMENT WITH REGARD TO EXPRESSIONS OF FEAR RELATE TO ESTRANGEMENT ARGUMENT AND I THINK THE ISSUE OF ESTRANGEMENT IS CENTRAL TO THIS CASE BECAUSE AN EXPERT WILL TESTIFY THAT IN A CASE SUCH AS THIS, A DOMESTIC VIOLENCE CASE, ESTRANGEMENT IS FREQUENTLY A TRIGGER FOR HOMICIDE. THE ARGUMENT IS THIS: SHE MADE AN EXPRESSION OF FEAR TO SOJOURN. HER FEAR DROVE HER TO CALL SOJOURN AND MAKE A CONTACT WITH THEM, SOJOURN BEING A BATTERED WOMAN'S SHELTER AND AN ORGANIZATION THAT EXISTS FOR THE PURPOSE OF HELPING WOMEN WHO ARE BATTERED. HER CONDUCT WAS IN CONFORMITY WITH HER FEAR. IT SPEAKS TO ESTRANGEMENT. A PERSON WOULD NOT CALL A SHELTER BECAUSE THEY WERE HAVING A GOOD RELATIONSHIP WITH THEIR HUSBAND OR THEIR EX-HUSBAND. THEY WOULD CALL BECAUSE THEY ARE SEEKING TO GET AWAY, BECAUSE THEY ARE AFRAID, AND SO WE SEE AN ESTRANGEMENT THEME BEGIN. NOW, THE QUESTION IS HOW IS THIS RELEVANT? SHE IS MANIFESTING ESTRANGEMENT. WE KNOW THAT IN ANOTHER WAY ALSO. WE KNOW THAT SHE GAVE THE DEFENDANT BACK A BRACELET THAT SHE HAD RECEIVED FOR HER BIRTHDAY. HE ADMITS THAT IN HIS STATEMENT TO THE POLICE. IT IS THE PEOPLE'S CONTENTION THAT AT THE POINT OF THIS ESTRANGEMENT THE DEFENDANT THEN WAS GIVEN A MOTIVE TO KILL, BECAUSE ESTRANGEMENT IS SHOWN OVER AND OVER AND OVER AGAIN IN THE DOMESTIC VIOLENCE LITERATURE TO BE THE TRIGGER, THE MOTIVE FOR A KILLING IN THIS TYPE OF HOMICIDE. AND IN FACT, WHAT AN EXPERT WILL TELL THIS COURT, AND THIS IS WHY AN EXPERT IS SO IMPORTANT FOR A JURY AND FOR THIS COURT, IS THAT A WOMAN IS SIX TIMES MORE LIKELY TO BE KILLED WHEN SHE LEAVES, AND IN FACT IN HOMICIDES OF THIS TYPE, BY THE END OF TWO MONTHS, IF A WOMAN IS TO BE KILLED -- IF YOU LOOKED AT A HUNDRED WOMEN WHO WERE HOMICIDE VICTIMS IN THIS TYPE OF A MURDER, 47 PERCENT OF THEM, 47 OF THEM WOULD HAVE BEEN KILLED WITHIN THE FIRST TWO MONTHS.
SO LET ME ASK YOU A QUESTION SO I UNDERSTAND YOUR ARGUMENT. YOU ARE ARGUING THAT THE STATEMENT TO A COUNSELOR AT SOJOURN, IF WE CAN PROVE THAT IT IS IN FACT MRS. SIMPSON WHO MADE THAT CALL --
-- AND IF YOU CAN ESTABLISH OR DETERMINE THE BRACELET AND MAKE THE ESTRANGEMENT ARGUMENT, THEN THAT BRINGS IN TESTIMONY THROUGH BATTERED WOMEN'S SYNDROME. AND COULD YOU TELL US WHAT THAT MEANS?
HER STATEMENT -- NO, I'M ARGUING 1250 ONLY, BUT THE COURT I THINK NEEDS TO KNOW TO MAKE ITS RULING WITH REGARD TO 1250 -- NEEDS TO KNOW WHY THE ESTRANGEMENT ISSUE IS SO IMPORTANT. HER CONDUCT IN CALLING THE SHELTER INDICATES THAT SHE IS TRYING TO DISTANCE HERSELF FROM THE DEFENDANT. THIS WAS CLEARLY COMMUNICATED TO THE DEFENDANT WITH THE RETURN OF THE BRACELET. HER CONDUCT WITH REGARD TO DISTANCING HIM, THE ESTRANGEMENT, MOTIVATED THIS MURDER. THAT IS WHAT WE ARE SAYING.
ESTRANGEMENT IS ABSOLUTELY CENTRAL TO UNDERSTANDING THIS CASE. IT MOTIVATES THIS MURDER. AND THIS STATEMENT OF FEAR AND HER CONDUCT IN CONFORMITY WITH HER STATEMENT OF FEAR IS RELEVANT TO THAT ISSUE OF ESTRANGEMENT WHICH PROVIDES MOTIVE FOR THE DEFENDANT TO KILL.
ALL RIGHT. MY CONCERN THEN IS GIVEN THE EVIDENCE CODE SECTION THAT INDICATES THE ADMISSIBILITY OF EXPERT TESTIMONY REGARDING BATTERED WOMEN'S SYNDROME, HAS AN EXPRESS LIMITATION, AN EXPRESS EXCEPTION WHEN THAT EVIDENCE IS BROUGHT IN TO PROVE THE INCIDENT THAT IS CHARGED, CORRECT?
WE ARE NOT TALKING ABOUT BATTERED WOMEN'S SYNDROME HERE. I MEAN, GENERALLY WE ARE GOING TO BE TALKING ABOUT IT IN THIS CASE. WE ARE TALKING ABOUT THE ENTRANCE OF EXPRESSIONS OF FEAR.
BUT TO EXPLAIN YOUR ESTRANGEMENT THEORY DON'T YOU HAVE TO BRING THAT IN THROUGH A BATTERED WOMEN'S SYNDROME EXPERT?
YES, YOUR HONOR, WE DO, BUT I THINK -- ALSO THINK WITHIN THE REALM OF COMMON SENSE, WHEN A PERSON IS DISTANCING -- DISTANCING THEMSELVES FROM AN INDIVIDUAL WHO HAS EXPRESSED OVER AND OVER AGAIN IN A LONG-TIME RELATIONSHIP, AND THE CASES DEMONSTRATE THIS, THAT THEY WISH TO BASICALLY CONTROL THIS PERSON, TO MAKE CONTACT WITH THEM, TO POSSESS THEM, TO BE JEALOUS OF THEM, ACTS OF ESTRANGEMENT ARE FREQUENTLY MOTIVES FOR MURDER.
YOUR HONOR, THERE ARE ACTUALLY THREE CASES WITH REGARD TO POSSESSIVENESS AND JEALOUSY THAT ARE STATED IN OUR BRIEF.
POSSESSIVENESS AND JEALOUSY ARE THINGS THAT ARE RELATIVELY COMMON. THIS THEORY OF ESTRANGEMENT --
I UNDERSTAND WHAT YOU ARE TALKING ABOUT, BUT I'M SAYING WITH REGARD TO YOUR SPECIFIC THOUGHT PROCESS, IS THERE ANY CASE THAT YOU ARE AWARE OF ANYWHERE IN ANY JURISDICTION THAT INDICATES THIS THEORY?
WELL, YOUR HONOR, I WOULD ASK THE COURT TO LOOK AT THE CASE OF PEOPLE VERSUS DE MOSS, WHICH WE HAVE CITED IN OUR BRIEF, WHERE THE DEFENDANT WAS HEARD TO SAY, "IF I CAN'T HAVE HER, NOBODY ELSE WILL."
BUT I THINK THAT THAT IS PRETTY OBVIOUS TO A TRIER OF FACT WITHOUT REFERENCE TO ESTRANGEMENT THEORY.
YOUR HONOR, I THINK THAT SHE MAKES A STATEMENT OF FEAR. SHE CALLS -- SHE CALLS A SHELTER. CLEARLY PEOPLE DON'T CALL SHELTERS BECAUSE THEY WANT TO GET BACK TOGETHER WITH SOMEBODY. THE QUESTION IS WHAT IS THE DEFENDANT'S REACTION TO THIS DISTANCING, EVEN IF WE DON'T CALL IT ESTRANGEMENT? WHATEVER WE WANT TO CALL IT, SHE WANTS TO DISTANCE HERSELF FROM HIM. HER CONDUCT IS RELEVANT TO SOMETHING THAT HE DID LATER; HE KILLED HER, AND HE KILLED HER BECAUSE SHE WAS DISTANCING HERSELF FROM HIM AFTER HE EXPRESSED OVER A LONG PERIOD OF TIME THAT, YOU KNOW, IF I -- I CAN'T LET HER GO. I MEAN, HE SAID THAT. HE SAID THAT TO THE MOTHER OF THE VICTIM, I CAN'T LET HER GO, AND THE POINT THAT SHE TRIES TO MAKE HIM GO, TO MAKE HIM LET GO, THAT IS MOTIVATION FOR KILLING.
YOUR HONOR, I THINK WHAT IS IMPORTANT HERE IS THAT WE KNOW ABOUT ESTRANGEMENT THEORIES, ABOUT EMPIRICAL RESEARCH, BUT WE ALSO KNOW ABOUT, ALTHOUGH THEY DON'T CALL IT ESTRANGEMENT THEORIES, SUCH AS A CASE LIKE DE MOSS, WHERE THIS KIND OF DISTANCING, IF I CAN'T HAVE HER NOBODY ELSE WILL, DOES PROVIDE A MOTIVE FOR MURDER. AND THE CASE LAW IS PRETTY CLEAR ON THAT AND DE MOSS IS CITED IN OUR BRIEF. DOES THE COURT HAVE ANY QUESTIONS FURTHER FOR ME WITH REGARD TO 1250?
OKAY. AND FINALLY, THE COURT HAD AGAIN AT THE END OF YESTERDAY ASKED US TO BASICALLY TALK ABOUT WHAT SOME OF OUR THEORIES WITH WERE REGARD TO ADMISSIBILITY. I'M NOT GOING TO SPECIFICALLY ADDRESS THE HEARSAY DISCUSSIONS, BUT I THINK I COVERED THAT PRETTY CLEARLY YESTERDAY, UNLESS THE COURT HAS QUESTIONS FOR ME ON THAT.
AND I THINK OUR BRIEF IS PRETTY CLEAR ON THAT. HOWEVER, THE COURT I THINK ASKED ME, WELL, WHAT IS THE BIG PICTURE HERE? THAT IS THE QUESTION THAT THE COURT IS ASKING ME, WHAT DOES ALL THIS EVIDENCE MEAN? THERE IS A BIG PICTURE AND THERE IS A LITTLE PICTURE. THE LITTLE PICTURE I THINK IS THAT THE ACTS THAT WE ARE TALKING ABOUT, THE STATEMENTS MADE BY THE DEFENDANT, FALL INTO SIX BASIC CATEGORIES.
AND THE FIRST CATEGORY IS OBSESSIVE AND JEALOUS BEHAVIOR. FOR EXAMPLE, THE INCIDENTS THAT WE HAVE CITED TO THE COURT WITH REGARD TO OBSESSIVE AND JEALOUS BEHAVIOR. HE SHOWS UP AT RESTAURANTS. SHE IS STILL MY WIFE. IF I CAN'T HAVE HER, NOBODY ELSE CAN HAVE HER. THE INCIDENTS THAT I HAVE CITED WITH THE COURT ARE REPLETE WITH OBSESSIVENESS TO THE POINT WHERE HE IS LOOKING IN HER WINDOW TO SEE WHAT SHE IS DOING IN THE MIDDLE OF THE NIGHT. THERE IS A CASE -- THERE ARE CASES WITH REGARD TO OBSESSIVENESS, OBSESSING, RATHER, JEALOUSY AND POSSESSIVENESS. ONE OF THEM I CITED TO THE COURT WHICH IS DE MOSS WHICH IS CONTAINED WITHIN OUR BRIEF, IF I CAN'T HAVE YOU, NOBODY ELSE WILL. THERE IS THE SHAVER CASE, WHICH IS CITED IN OUR BRIEF, WHERE THE DEFENDANT IN THAT CASE HAD ACCUSED THE VICTIM OF BEING WITH OTHER MEN. THERE IS THE CARTIER CASE, ONCE AGAIN A CASE ON JEALOUSY, AND THE DANIELS CASE WHICH IS ALSO A CASE INVOLVING JEALOUSY. AND WHAT THE COURTS HAVE CONSISTENTLY SAID IN THOSE FOUR CASES IS THAT POSSESSIVENESS AND JEALOUSY PROVIDE A MOTIVE FOR MURDER. SECONDLY, AND THE NEXT CATEGORY, ARE EMOTIONAL AND -- ARE EMOTIONAL ABUSE AND PUBLIC HUMILIATION, AND THERE IS A CASE ON THAT, THE CASE OF PEOPLE VERSUS DANIELS, WHICH I HAVE JUST CITED TO THE COURT, WHERE THERE IS A HISTORY OF ENMITY AND QUARRELS WHERE THERE IS BASICALLY PUBLIC ABUSE GOING ON AND THAT PROVIDES A MOTIVE ALSO FOR MURDER. PROPERTY DESTRUCTION. THERE IS LOTS OF PROPERTY DESTRUCTION INCIDENTS CONTAINED WITHIN THE FACTS THAT WE HAVE TALKED ABOUT TO THE COURT. WE HAVE A CAR THAT HAS BEEN DESTROYED, WE HAVE DOORS THAT ARE KICKED IN, WE HAVE PICTURES THAT ARE WRECKED.
OKAY. AND THERE ARE TWO CASES CITED IN OUR BRIEF, HELFEND AND HAYLOCK, BOTH OF THOSE INVOLVING ARSON. ONE OF THEM, INTERESTINGLY ENOUGH, INVOLVING THE ARSON OF A CAR, THAT WOULD BE THE HAYLOCK CASE, AND ONCE AGAIN THE COURT HAS SAID THAT THAT PROVIDES A MOTIVE AND A -- FOR A PERMISSIBLE 1101(B) PURPOSE. THERE ARE CASES ON STALKING, AND INTERESTINGLY, THERE IS A CASE ON STALKING AND STARING THAT TALKS ABOUT STALKING AND STARING AND FOLLOWING AS BEING ADMISSIBLE ON THE ISSUE OF PREMEDITATION, AND THAT IS THE NICHOLAUS CASE WHICH IS CITED IN OUR BRIEF. PHYSICAL VIOLENCE REALLY IS TAKEN UP IN THE ZACK CASE. IT IS ALSO TAKEN UP I BELIEVE IN THE DANIELS CASE. IN ZACK IT WAS ADMISSIBLE ON THE ISSUE OF IDENTITY. IN DANIELS IT WAS ADMISSIBLE ON THE ISSUE OF MOTIVE. I MIGHT ALSO ADD THAT THERE WAS AN ARGUMENT MADE BY MR. UELMEN YESTERDAY THAT NONE OF THE ACTS OF PHYSICAL VIOLENCE ARE SIMILAR TO THE CRIME THAT WAS COMMITTED, AND I THINK IT IS IMPORTANT TO SAY THAT IF THEY HAD TO BE EXACTLY SIMILAR -- AND SIMILARITY, BY THE WAY, IS NOT THE TEST AND I WILL TALK ABOUT THAT IN A MOMENT -- WHAT THAT WOULD MEAN IS THAT THE DEFENDANT WOULD HAVE HAD TO KILL THE VICTIM TWICE. SINCE WE KNOW THAT IS NOT POSSIBLE, THAT CAN'T POSSIBLY BE THE STANDARD AND ZACK TALKS ABOUT THAT. FINALLY, WITH REGARD TO FINANCIAL MANIPULATION, AND THERE ARE INCIDENTS WITH REGARD TO FINANCIAL MANIPULATION AND THERE IS TWO OF THEM. THE FIRST ONE IS A PRENUPTIAL LETTER WHERE BASICALLY THE DEFENDANT SAYS, WELL, YOU KNOW, IF THIS EVER HAPPENS AGAIN THIS PRENUPTIAL AGREEMENT IS VOID, USING IT AS A TOOL TO KEEP HER CLOSE TO HIM. OKAY, I'M NEVER GOING TO DO THIS AGAIN, IT IS NEVER GOING TO HAPPEN AGAIN. HERE, I'M GOING TO PUT IT IN WRITING, THIS IS A PRENUPTIAL AGREEMENT. THAT IS FINANCIAL MANIPULATION. HE ALSO, TOWARD THE END OF THEIR RELATIONSHIP, CLOSE TO THE TIME WHEN HE KILLED THE VICTIM, HE SENT A LETTER TO HER WITH REGARD TO REPORTING HER TO THE IRS, AGAIN ATTEMPTING TO MANIPULATE HER, TO THREATEN HER THROUGH FINANCIAL MEANS, AND THERE IS A CASE ON THAT AND THAT IS THE CASE OF ARGENTOS. THAT, INTERESTINGLY ENOUGH, INVOLVED GOLDMINERS, AND WHAT THE COURT SAID IS EVIDENCE OF FINANCIAL MANIPULATION IS ADMISSIBLE ON THE ISSUE OF MOTIVE. CLEARLY THESE CASES ARE NOT LIMITED MERELY TO PHYSICAL ASSAULT. WE ARE NOT JUST TALKING ABOUT PHYSICAL ASSAULT HERE. WE ARE TALKING ABOUT A LARGE PATTERN OF ABUSIVE ACTS, NOT JUST PHYSICALLY ABUSIVE ACTS. THERE ARE MANY WAYS THAT YOU CAN ABUSE SOMEBODY. YOU CAN ABUSE THEM BY TRYING TO MANIPULATE THEM FINANCIALLY, AS I HAVE JUST SAID, BY RUINING THEIR PROPERTY, IMPORTANT PROPERTY, PICTURES, THINGS THAT PEOPLE HOLD NEAR AND DEAR TO THEIR HEART. AND THAT BRINGS US TO THE BIG PICTURE AND THE BIG PICTURE IS EWOLDT. I THOUGHT IT WAS INTERESTING YESTERDAY THAT THE DEFENSE CITED EWOLDT AND MADE IT LOOK LIKE THAT WAS A CASE THAT WAS GOOD FOR THE DEFENSE. IT IS NOT GOOD FOR THE DEFENSE. IT IS A WONDERFUL CASE FOR THE PEOPLE ON COMMON PLAN, SCHEME AND DESIGN. AND IN THAT COURT THE LET IN EVIDENCE OF COMMON SCHEME AND DESIGN AND WE HAVE CITED THAT IN OUR BRIEF. AND MR. GOLDBERG IS GOING TO TALK IN GREAT DEPTH ABOUT THE EWOLDT COURT; HOWEVER, I WILL SAY THIS TO THE COURT, THAT THE COMMON PLAN, THE MONDAY DESIGN OF ALL THESE ACTS IS TO CONTROL AND TO DOMINATE NICOLE BROWN SIMPSON.
IF PHYSICAL VIOLENCE DOESN'T WORK, WELL, LET'S TRY A LITTLE FINANCIAL MANIPULATION. WELL, IF THAT DOESN'T WORK, HEY, LET'S USE A LITTLE PROPERTY DESTRUCTION. IF THAT DOESN'T WORK, WELL, MAYBE I WILL START FOLLOWING HER AROUND AND SHOWING UP EVERYWHERE SHE GOES, SHOW UP AT RESTAURANTS AND SHOWS UP AT HER HOUSE. AND HE HAS SEEN BY MANY PEOPLE DOING THIS; THE COLBYS, KEITH ZLOMSOWITCH, JEFFREY KELLER, PEOPLE WHO ARE SEEING HIM FOLLOWING HER WHEREVER SHE GOES, IN HER HOME, IN HER RESTAURANT, CALLING HER. THIS IS VERY IMPORTANT BECAUSE IT DOES SHOW A COMMON PLAN TO CONTROL HER, AND WHEN HE FINALLY COULDN'T CONTROL HER, WHEN SHE WAS FINALLY BREAKING AWAY FROM HIM, WHEN SHE HAD FINALLY ESTRANGED HERSELF FROM HIM AND TRIED TO DISTANCE HERSELF FROM HIM, IT IS THE PEOPLE'S CONTENTION THAT HE KILLED HER. AND ALL OF THESE ACTS PROVIDE POWERFUL MOTIVE AND SPEAK LOUDLY TO THE ISSUE OF IDENTITY AND THAT IS WHAT ZACK SAYS. ZACK SAYS, LOOK, LET'S JUST LOOK AT IT THIS WAY. IF THERE IS A PAST HISTORY OF QUARRELS AND ABUSE AND ENMITY, THAT COMES IN FOR THE ISSUE OF IDENTITY. THAT IS THE PLAIN MEANING OF ZACK.
AND THE OTHER THING THAT ZACK SAYS, AND I THINK THIS IS VERY IMPORTANT, ZACK SAYS THIS: "NO DEFENDANT IS ENTITLED TO MAKE A REPRESENTATION TO A JURY THAT THEIR PARTING WAS PEACEFUL AND FRIENDLY, WAS DEVOID OF CONFLICT WHEN IN FACT THERE WAS A LONG HISTORY," AS IN THIS CASE, "OF ABUSE ON MANY LEVELS." AND THAT IS THE TRUTH OF THIS CASE AND ALL OF THESE ACTS OF ABUSE STARTING IN 1977 PROVE A LONG AND VIOLENT HISTORY AND THAT IS THE RELEVANCE. IT SHOWS A PATTERN.
MISS BODIN, LET ME ASK YOU THIS THEN: THE ZACK CASE APPEARS TO BE A VERY IMPORTANT PART OF YOUR STRATEGY AND REASONING FOR THE ADMISSIBILITY OF THIS HISTORY, AND MY CONCERN IS THAT ZACK, ALTHOUGH IT IS NOT CLEAR FROM THE RECORD OF ZACK, THE ACTUAL WRITTEN OPINION IS NOT CLEAR, THE INFERENCE IS THAT THE EVIDENCE THAT YOU ARE SEEKING TO ADMIT THAT ZACK DID ALLOW WAS ALLOWED IN REBUTTAL AFTER THE DEFENDANT HAD TESTIFIED. THE REASON I FEEL RELATIVELY CONFIDENT IN THAT ANALYSIS OF THE ZACK CASE IS THAT ZACK IS CITED IN THE CALIFORNIA SUPREME COURT CASES FOR THE PROPOSITION THAT THIS IS ADMISSIBLE IN REBUTTAL.
YOU ARE ASKING ME TO ALLOW THIS EVIDENCE IN IN THE PEOPLE'S CASE IN CHIEF, WHICH IS A SIGNIFICANTLY DIFFERENT SITUATION THAN WHAT WE FACE HERE TODAY, AND I DON'T KNOW THAT ZACK IS NECESSARILY A GOOD FOUNDATION FOR THAT REASON.
I UNDERSTAND THE COURT'S QUESTION AND THAT IS A VERY NATURAL BREAK INTO MR. GOLDBERG'S ARGUMENT, BECAUSE HE IS THE PERSON WHO WILL BE PRESENTING THE ARGUMENTS UNDER ZACK AND THE ANALYSIS UNDER ZACK. AND AT THIS POINT I WILL GIVE WAY THE PODIUM TO MR. GOLDBERG.
MR. UELMEN STARTED HIS ARGUMENT YESTERDAY BY TELLING US A STORY ABOUT HOW WHEN HE WAS A PROSECUTOR HE AFFIXED A LABEL TO HIS VARIOUS CASE FILES, THEN I THINK HE SAID ORGANIZED CRIME, AND WOULD DISPLAY IT IN SUCH A WAY SO THAT IT WAS VERY VISIBLE AS HE CARRIED THE CASE FILE AROUND. AND I TOOK THAT STORY AS PERHAPS YOUR HONOR DID, AS AN APOCRYPHAL KIND OF STORY THAT WAS DESIGNED TO INDICATE THE MISCHIEF THAT CAN BE CAUSED BY FIXING LABELS TO THINGS IMPROPERLY. THE STORY DID, HOWEVER, CAUSE ME TO LOOK AT MY CASE FILE, THE SAME ONE THAT I BROUGHT DOWN WITH ME TO COURT TO CONTAIN MY ARGUMENTS AND SOME OF THE SUPPORTING DOCUMENTS, AND I NOTICED THAT I ACTUALLY DIDN'T HAVE ANY LABEL ON IT AT ALL. THE PROSECUTION HAS NOT LABELED THIS CASE. THE PROSECUTION DID NOT TELL THE DEFENDANT IN THIS CASE TO ENGAGE IN A PATTERN OF ABUSE AGAINST NICOLE BROWN SIMPSON OVER A PERIOD OF 17 YEARS. THE PROSECUTION DID NOT TELL THE DEFENDANT TO COMMIT A DOMESTIC VIOLENCE HOMICIDE. HE DID THOSE THINGS BY HIMSELF. TO THE EXTENT THAT ANY LABEL ATTACHES TO THIS CASE, HE IS RESPONSIBLE FOR THAT LABEL. WE DID NOT CREATE THE EVIDENCE. WE SIMPLY TAKE THE CASE AS WE GET IT, AND IT HAPPENS TO BE THAT THAT IS THE KIND OF A CASE THAT WE ARE DEALING WITH HERE. NOW, IT WAS OUR POSITION IN OUR MOVING PAPERS, AND IT IS OUR POSITION TODAY, THAT THERE IS A PARTICULAR RULE OF ADMISSIBILITY THAT PERTAINS IN THOSE KIND OF CASES, THAT THERE IS A DIFFERENT MOTIVE ANALYSIS, IF YOU WILL, WITH RESPECT TO THE ADMISSIBILITY OF OTHER CRIMES EVIDENCE IN THIS TYPE OF A CASE, AND IT IS VERY WELL-DOCUMENTED IN CALIFORNIA CASE LAW. I AM GOING TO DISCUSS THAT WITH YOU TODAY AND I'M GOING TO DISCUSS PEOPLE VERSUS ZACK, AS I KNOW YOUR HONOR WANTS ME TO.
IN THE SECOND PART OF MY ARGUMENT I WANT TO TURN TO A MORE TRADITIONAL 1101(B) ANALYSIS AND SHOW THAT THIS EVIDENCE IS ADMISSIBLE FOR THE PURPOSES OF SHOWING INTENT, IDENTITY, COMMON PLAN, SCHEME AND DESIGN UNDER A MORE TRADITIONAL TYPE OF APPROACH. I WOULD LIKE TO COMMENT A LITTLE LATER ON THE THIRD PART OF MY ARGUMENT ABOUT THE DUE PROCESS ARGUMENT THAT WAS MADE. ALTHOUGH COUNSEL DID NOT REPEAT IT YESTERDAY, I'M NOT SURE WHETHER HE IS WITHDRAWING THAT. AND FINALLY, I WOULD LIKE TO DISCUSS EVIDENCE CODE SECTION 352 AND WHY IT IS THAT THE EVIDENCE IS NOT EXCLUDABLE UNDER THAT SECTION. NOW, FIRST IT IS OUR POSITION, AS WE SAID, THAT THERE IS A RULE BASED ON COMMON SENSE, BASED ON LAW, THAT IN RELATIONSHIP VIOLENCE CASES THE JURY MUST HEAR EVIDENCE REGARDING THE RELATIONSHIP. THAT IS ABOUT AS SUCCINCTLY AS I CAN PUT IT. AND THIS NOTION THAT WE HAVE BEEN CRITICIZED FOR OF SAYING THAT THERE IS A DIFFERENT MOTIVE ANALYSIS THAT YOU APPLY IN THIS KIND OF A CASE IS NOT IN IN WAY NOVEL, BECAUSE IN FACT THE COURT IN PEOPLE VERSUS SALAZAR, WHICH WE CITED IN OUR BRIEF, SAID THAT IN THE CONTEXT OF SEX OFFENSE CASES, QUOTE:
"IN SEX OFFENSE CASES OUR SUPREME COURT HAS SET FORTH A LESS STRINGENT TEST FOR ADMISSION OF EVIDENCE OF UNCHARGED OFFENSES," END QUOTE, "WHEN THE PRIOR OFFENSE INVOLVED THE SAME VICTIM AND THE SAME DEFENDANT." SO IT IS A VERY ANALOGOUS SITUATION. AND THE POINT IS THAT WHEN WE EXAMINE CALIFORNIA CASE LAW, WE SEE THAT THERE ARE DIFFERENT AREAS WHERE THERE ARE RELATIVELY WELL-DEFINED RULES ALMOST OF BLACK LETTER ADMISSIBILITY WITH RESPECT TO THE ADMISSIONS OF PRIOR CRIMES EVIDENCE. THE SEX OFFENSE CASES INVOLVING SITUATIONS WHERE THE PRIOR INSTANCES INVOLVE THE SAME DEFENDANT AND THE SAME VICTIM ARE ONE. WE ARE TELLING THE COURT THAT THE CALIFORNIA CASE LAW CLEARLY INDICATES THAT RELATIONSHIP VIOLENCE CASES IS ANOTHER, AND IT IS NOT SIMPLY BASED ON PEOPLE VERSUS ZACK, BUT RATHER A NUMBER OF CASES, AND I'M GOING TO TALK ABOUT THOSE AS WELL. BUT BEFORE GETTING INTO THAT RATHER DENSE LEGAL ANALYSIS, AND I THINK IT IS NECESSARY, IN LIGHT OF COUNSEL'S ARGUMENT AND SOME OF THE COURT'S QUESTIONS, I JUST WANTED TO FIRST DISCUSS FROM A COMMON SENSE PERSPECTIVE WHY IT IS THAT THIS PARTICULAR RULE EXISTS AND GIVE SOME HYPOTHETICALS IN ORDER TO ILLUSTRATE IT. WHERE SOMEONE KILLS ANOTHER PERSON WITH WHOM THEY WERE INVOLVED IN A RELATIONSHIP, IT SEEMS THAT THE FIRST QUESTION THAT THE LOGICAL MIND IS GOING TO ASK IS WHAT WAS THE RELATIONSHIP, WHAT WAS THE NATURE OF THE RELATIONSHIP, WHAT WAS GOING ON IN THE RELATIONSHIP? THOSE ARE PROBABLY THE FIRST QUESTIONS THAT ANY JURY WOULD ASK IN ANY KIND OF A RELATIONSHIP VIOLENCE CASE, AND THAT IS WHY WE HAVE AN ENTIRE BODY OF CASE LAW IN THIS STATE THAT GOVERNS ADMISSIBILITY ISSUES IN THAT CONTEXT. NOW, WHY FROM A COMMON SENSE PERSPECTIVE IS THAT THE RULE? WHY WOULD THERE BE A SPECIAL SET OF RULES OR AT LEAST A WHOLE BODY OF CASE LAW DEVOTED TO THIS AREA? WELL, LET'S SAY, YOUR HONOR, THAT IN THIS CASE OR IN ANY MURDER CASE INVOLVING A DOMESTIC VIOLENCE MURDER OR A RELATIONSHIP VIOLENCE MURDER, THE DEFENDANT WANTED TO PUT ON EVIDENCE TO SHOW THAT HE GOT ALONG VERY WELL WITH THE VICTIM, THEY WERE VERY CLOSE, THEY HELD HANDS, THEY WERE AFFECTIONATE WITH ONE ANOTHER, HE CALLED FRIENDS AND PEOPLE TO CHARACTERIZE THE RELATIONSHIP IN THAT WAY. WOULDN'T THAT CLEARLY BE ADMISSIBLE WITHOUT REGARD TO ANY 1101 ANALYSIS? IT IS NOT CHARACTER EVIDENCE; IT IS JUST EVIDENCE CHARACTERIZING A RELATIONSHIP.
AND IF YOUR HONOR CAN IMAGINE THE REVERSE OF THAT SCENARIO, THE PROSECUTION PUTTING ON EVIDENCE THAT TWO PEOPLE WERE ESTRANGED, DISTANT, THAT THEY QUARRELED, THAT THEY WERE SPLITTING APART, PERHAPS THAT THE HUSBAND HAD FALLEN IN LOVE WITH ANOTHER WOMAN, WOULDN'T THAT CLEARLY BE RELEVANT TO CHARACTERIZE THE RELATIONSHIP? AND AGAIN, IT IS NOT REALLY 1101(B) EVIDENCE WHEN YOU THINK ABOUT IT; IT IS JUST EVIDENCE WHICH CHARACTERIZES AND EXPLAINS THE DYNAMIC OF THAT RELATIONSHIP. NOW, I WOULD LIKE THE COURT TO IMAGINE ANOTHER HYPOTHETICAL SITUATION AND THAT WOULD BE A CASE WHERE THE VICTIM HAS BATTERED THE DEFENDANT OR ABUSED THE DEFENDANT, BECAUSE COMMONLY WE THINK OF THAT NOW UNDER SOME MODERN APPROACHES THAT ARE USED IN OUR COURTS AS BEING DEFENSE EVIDENCE THAT WOULD NEGATE MURDER TO MANSLAUGHTER POTENTIALLY UNDER AN HONEST BUT UNREASONABLE BELIEF IN SELF-DEFENSE. BUT THOUGHT OF ANOTHER WAY IT COULD ALSO BE VERY POWERFUL PROSECUTION EVIDENCE. IT COULD BE EVIDENCE THAT CLEARLY INDICATES WHY THE DEFENDANT HAD A MOTIVE TO KILL HIS ABUSER OR HER ABUSER. AND IF THE EVIDENCE DID NOT INDICATE AN IMMINENT FEAR, IT WOULD BE VERY POWERFUL EVIDENCE OF A FIRST DEGREE MURDER. IS THAT 1101(B) EVIDENCE? OF COURSE NOT. IT IS NOT CHARACTER EVIDENCE. IT IS SIMPLY EVIDENCE WHICH CHARACTERIZES A RELATIONSHIP AND SHOWS THE DYNAMIC IN THAT RELATIONSHIP THAT ALLOWED A MURDER TO HAPPEN. NOW, THOUGHT OF THAT WAY, THE EVIDENCE THAT WE ARE PUTTING IN, RELATIONSHIP EVIDENCE ISN'T REALLY IN MANY SENSES 1101(B) EVIDENCE, IT IS NOT CHARACTER EVIDENCE, BY RATHER SIMPLY TRANSACTIONAL EVIDENCE TO SHOW WHAT THE DEVELOPMENT WAS OF THIS RELATIONSHIP, WHAT THE CHARACTERISTICS WERE IN THAT RELATIONSHIP IN ORDER TO EXPLAIN HOW THE HOMICIDE OCCURRED. NOW, THIS RULE THAT I HAVE JUST CITED OR THAT I HAVE JUST ARGUED FROM THE COMMON SENSE PERSPECTIVE WAS PUT FORWARD VERY SUCCINCTLY IN THE CASE OF PEOPLE VERSUS HELFEND WHICH WAS A CASE WHERE A DEFENDANT MURDERED HIS EX-WIFE'S HUSBAND. AND THERE WAS A HISTORY AND A PATTERN OF HARASSMENT IN THAT CASE. FOUR YEARS PRIOR TO THE HOMICIDE HE HAD BURNT DOWN THE VICTIM'S HOME. THIS IS ONE OF THE CASES THAT MISS BODIN CITED FOR THE PROPOSITION THAT PROPERTY DESTRUCTION IS RELEVANT IN A DOMESTIC -- IN A RELATIONSHIP VIOLENCE CASE, AND HERE IS WHAT THE COURT SAID. QUOTE: "WHEN THE MOTIVE OF A CRIME IS SOUGHT TO BE ESTABLISHED BEFORE A JURY, THE WHOLE CONDUCT, LIFE AND CHARACTER OF THE PARTIES AS AFFECTING THIS QUESTION IS OPEN TO INQUIRY." WELL, THAT IS PRECISELY WHAT I'M SAYING, YOUR HONOR, THAT WHERE THIS IS A RELATIONSHIP. WE HAVE TO OPEN THAT UP RELATIONSHIP, EXAMINE IT, FIND OUT WHAT WAS GOING ON FOR THE PURPOSES OF DETERMINING WHY THAT MURDER OCCURRED. SO EVEN IF PEOPLE VERSUS ZACK WASN'T IN EXISTENCE, OF COURSE I WOULD STILL BE ASKING FOR THE EVIDENCE TO BE ADMITTED UNDER PEOPLE VERSUS HELFEND AND MANY OF THE OTHER CASES THAT WAVE CITED IN OUR BRIEF. NOW, THE DEFENSE POSITION APPEARS TO BE THAT WE CANNOT OFFER EVIDENCE ABOUT THE RELATIONSHIP, THAT WE ARE NOT ENTITLED TO CHARACTERIZE THE RELATIONSHIP. I WAS -- I DID NOT UNDERSTAND, UNTIL YESTERDAY, THE EXACT POSITION THAT THEY WERE TAKING ON THIS ISSUE. IN TRYING TO ANTICIPATE THE ARGUMENTS, I WASN'T SURE WHETHER COUNSEL WAS GOING TO SUGGEST THAT WE CAN'T SAY ANYTHING ABOUT THE RELATIONSHIP AT ALL OR WHETHER THEY WERE GOING TO PROPOSE SOME KIND OF SANITIZED VERSION OF THE RELATIONSHIP. AND I WOULD LIKE TO EXPLAIN WHAT I MEAN ABOUT THAT. LET'S IMAGINE THAT WE TRIED THE CASE, YOUR HONOR, WITHOUT TELLING THE JURY THAT NICOLE BROWN SIMPSON WAS EVER MARRIED TO THE DEFENDANT, WAS JUST A WOMAN WHO WAS MURDERED. RONALD GOLDMAN WAS JUST A MAN THAT WAS MURDERED, AND WE DID NOT TELL THEM OF THE EXISTENCE OF ANY RELATIONSHIP AT ALL. IT IS ALMOST UNIMAGINABLE, BECAUSE THE JURY WOULD HAVE TO CALL INTO QUESTION ALL OF OUR EVIDENCE, NO MATTER HOW STRONG IT WAS, POINTING TO THE DEFENDANT AS THE MURDERER, BECAUSE WHY ON EARTH WOULD ORENTHAL SIMPSON KILL AN ENTIRE STRANGER, JUST THIS WOMAN NAMED NICOLE OR THIS MAN THAT HE HAD NEVER SEEN BEFORE AND DIDN'T KNOW AND WHY WOULD HE HAVE KILLED THEM SO BRUTALLY? IT WOULDN'T MAKE ANY SENSE AND IT WOULD UNDERMINE THE PROSECUTION'S CASE, CLEARLY. IT IS ONLY WHEN YOU UNDERSTAND THE RELATIONSHIP AND YOU UNDERSTAND THE JEALOUSY, THE POSSESSIVENESS, THAT THE KILLING AND THE BRUTALITY OF THE KILLING OF NICOLE MAKES SENSE. IT IS ONLY WHEN YOU UNDERSTAND THE JEALOUSY AND THE POSSESSIVENESS THAT IT BECOMES UNDERSTANDABLE WHY ON EARTH HE WOULD KILL THIS YOUNG MAN WHO HE HAD PROBABLY ONLY SEEN ON ONE OCCASION BEFORE, THAT WOULD BE IN THE INCIDENT INVOLVING STARBUCK'S COFFEE. WHY WOULD HE KILL THEM? IT BECOMES UNDERSTANDABLE IF YOU UNDERSTAND THE JEALOUSY. THE DEFENDANT DIDN'T KNOW WHAT WE KNOW. HE DIDN'T KNOW THAT THERE HAD BEEN A CALL PLACED TO MEZZALUNA TO RETURN THE GLASSES. HE DIDN'T KNOW THAT MR. GOLDMAN WAS HOLDING THE GLASSES. HE DIDN'T KNOW THAT HE HAD HIS CAR KEYS IN HIS HAND, THAT HE WAS GOING TO DROP THEM OFF AND LEAVE. TO HIM THIS WAS A MAN WHO AT NIGHT, UNDER CIRCUMSTANCES WHICH HE BELIEVED TO BE VERY SUSPICIOUS, A POTENTIAL SUITOR WAS MEETING SOMEONE THAT HE HAD A POSSESSORY INTEREST IN AND THAT EXPLAINS WHY HE KILLED HIM, THE BRUTALITY OF IT. IN YOU SIMPLY SANITIZE IT TO THE POINT OF SAYING THERE WAS NO RELATIONSHIP, THAT CLEARLY WOULD BE THE PERPETRATION OF A FRAUD ON THE JURY. IT CLEARLY WOULD BE HIGHLY, HIGHLY MISLEADING. BUT WHAT THE DEFENSE POSITION APPEARS TO BE, IF I'M UNDERSTANDING THEM, IS NOT THAT WE HAVE TO SAY THAT THERE WAS NO RELATIONSHIP AT ALL, BUT WE HAVE TO SANITIZE IT, GIVING THEM WHAT I THINK THE DEFENSE WOULD PROBABLY CHARACTERIZE AS NEUTRAL HISTORICAL FACTS. THEY GOT MARRIED ON A CERTAIN DATE, THEY SEPARATED ON A CERTAIN DATE, THEY DIVORCED ON A CERTAIN DATE, THEY TRIED TO RECONCILE AND THAT DIDN'T WORK. THEY BROKE UP. I THINK THAT THAT IS -- THAT THEY ARE SAYING THAT THAT IS ABOUT THE EXTENT TO WHICH WE CAN EXPLAIN THIS RELATIONSHIP. BUT WHAT I WOULD SUGGEST TO YOUR HONOR IS THAT THE TERMS THAT THEY WOULD PROBABLY CONCEDE THAT WE COULD USE, THE EVIDENCE THAT THEY WOULD PROBABLY CONCEDE WE COULD USE, DOESN'T SOLVE THE PROBLEM, IT DOESN'T MAKE IT ANY LESS OF A MISLEADING SCENARIO, BECAUSE THE TERM "HUSBAND AND WIFE," THOSE AREN'T NEUTRAL TERMS. THEY DO IMPLY SOMETHING. THEY IMPLY LOVE, THEY IMPLY FIDELITY, THEY IMPLY THAT THIS MAN AT LEAST AT ONE TIME TOOK AN OATH THAT HE WOULD HONOR, THAT HE WOULD PROTECT NICOLE BROWN SIMPSON, AND A JURY IS ENTITLED TO DRAW THAT INFERENCE AND WILL DRAW THAT INFERENCE FROM THAT KIND OF EVIDENCE. IN OTHER WORDS, WHAT THEY WILL DRAW IS INFERENCES ABOUT THIS RELATIONSHIP WHICH ARE THE EXACT OPPOSITE OF WHAT WE KNOW THE TRUTH TO BE. AND I BELIEVE, YOUR HONOR, THAT THAT IS EXACTLY WHAT THE COURT IN PEOPLE VERSUS ZACK WAS TALKING ABOUT WHEN THEY SAID THAT THE DEFENDANT IS NOT ENTITLED TO HAVE THE JURY DETERMINE HIS GUILT OR INNOCENCE ON A FALSE PRESENTATION THAT HIS AND THE VICTIM'S RELATIONSHIP AND THEIR PARTING WERE PEACEFUL AND FRIENDLY, BECAUSE THAT IS THE KIND OF INFERENCE, WHICH IN THE ABSENCE OF ANY EVIDENCE, YOU WOULD DRAW AND THAT I THINK IS WHAT ZACK IS SAYING IN THE QUOTE. BY THE WAY, THAT IS ALL I THINK THEY ARE SAYING IN THAT QUOTE AND I WILL DISCUSS THAT A LITTLE BIT MORE LATER ON. THAT IS WHY THE PROSECUTION SAYS, AND IT IS NOT OVERSTATING OUR POSITION, THAT NOT TO ALLOW THIS EVIDENCE IS NOT MERELY TO DEPRIVE THE JURY OF RELEVANT EVIDENCE, IT IS TO DO SOMETHING MUCH WORSE. IT IS TO GIVE THEM JUST ENOUGH EVIDENCE TO INFER THINGS THAT ARE A HUNDRED AND EIGHTY DEGREES DIAMETRICALLY OPPOSED FROM THE TRUTH. THAT IS, IT IS TRULY AS WE SAID, TO PERPETRATE A FRAUD ON THE JURY, AND THE CALIFORNIA CASE LAW DOES NOT PERMIT THAT. NOW, WE SAY THAT THIS RULE THAT WE ARE TALKING ABOUT IS ESTABLISHED BY PEOPLE VERSUS ZACK. WHAT I WOULD LIKE TO ALSO STATE, BECAUSE COUNSEL ARGUED THAT THIS WAS THE ONLY CASE WE WERE RELYING ON -- IT IS NOT THE ONLY CASE WE ARE RELYING ON. THE REASON THAT WE RELIED SO HEAVILY ON ZACK IS BASICALLY TWO-FOLD. NO. 1, IT IS MY FEELING, AS THE FEELING OF MANY PROSECUTORS OR ATTORNEYS IN GENERAL, THAT IF YOU HAVE ONE CASE THAT REALLY TELLS YOU THAT YOU ARE RIGHT ABOUT THE LAW AND CLEARLY TELLS YOU THAT, YOU CAN CITE THAT ONE CASE AND THAT IS PRETTY MUCH ALL YOU NEED TO DO. THE LESS IS MORE TYPE OF APPROACH TO ADVOCACY. AS YOUR HONOR KNOWS BY READING OUR BRIEF, THAT WAS NOT THE APPROACH THAT WE TOOK HERE AND WE DID NOT TAKE THAT APPROACH HERE BECAUSE OF THE ARGUMENTS THAT WERE MADE BY COUNSEL IN HIS BRIEF AND BECAUSE OF THE ARGUMENTS -- WHAT HE SAID IS HE SAID ZACK IS WRONG IN A FOOTNOTE TO HIS BRIEF, SO WHAT WE FELT THAT HE HAD TO DO IS WE NEEDED TO BACK UP ALL THE WAY TO 1909, WALK ALL THE WAY FORWARD TO ZACK AND WALK FROM ZACK FORWARD TO PEOPLE VERSUS NICHOLAUS, ALL OF THESE BEING RELATIONSHIP VIOLENCE CASES, AND SHOW YOU EXACTLY WHERE THE RULES COME FROM AND EXACTLY WHY THIS RULE IS IN FACT CORRECT.
ON PAGE 27 THROUGH 33 OF OUR BRIEF WE DISCUSSED TEN RELATIONSHIP VIOLENCE CASES. NOT ONE, TEN. COUNSEL SAYS WE ONLY RELIED ON ONE. WE HAVE TEN IN THERE. MOST OF THOSE CASES ARE CASES WHERE A HUSBAND KILLED A WIFE OR A BOYFRIEND KILLED A GIRLFRIEND -- A BOYFRIEND KILLED A GIRLFRIEND. ONE OF THE CASES IS WHERE A GIRLFRIEND KILLED A BOYFRIEND. SO WE HAVE A LOT OF AUTHORITY ON THIS ISSUE AND A LOT OF THE LANGUAGE AND HOLDINGS OF THOSE CASES ARE EVERY BIT AS PERSUASIVE AS THE ZACK CASE ITSELF, AND IN FACT WERE RELIED ON BY THE COURT IN ZACK. NOW, WHEN WE SAY -- I'M GOING TO TALK ABOUT SOME OF THOSE CASES A LITTLE BIT LATER, YOUR HONOR, AS WELL, BUT I WOULD INVITE THE COURT -- IT ISN'T THAT LENGTHY A PORTION OF OUR BRIEF -- TO LOOK AT 27 THROUGH 33 BECAUSE WE REALLY DID LAY OUT THE CASES. WE TALKED ABOUT THE FACTS AND WE TALKED ABOUT THE HOLDINGS. I THINK IN LIGHT OF THE COURT'S QUESTIONS AND COUNSEL'S COMMENTS IT MIGHT BE HELPFUL TO YOUR HONOR. NOW, WHEN WE SAY THAT THERE IS A DISTINCT MOTIVE ANALYSIS IN RELATIONSHIP VIOLENCE CASES, I WOULD LIKE TO DEFINE WHAT WE MEAN AND I WOULD LIKE TO SEE IF I CAN FRAME FOR YOUR HONOR THE CONTROVERSY THAT EXISTS BETWEEN THE PROSECUTION AND THE DEFENSE, IN OTHER WORDS, WHERE WE DISAGREE, VERY PRECISELY. WHAT I MEAN IS THAT WE MEAN THAT YOU DO NOT APPLY DISTINCTIVE MO ANALYSIS. THAT IS A KEY POINT OF WHAT WE ARE SAYING WHEN WE SAY THAT THERE IS A RELAXED OR MORE LIBERAL RULE OF ADMISSIBILITY IN RELATIONSHIP VIOLENCE CASES. NOW, THE DEFENSE, ON THE OTHER HAND, IS CLEARLY CLAIMING THAT YOU STILL HAVE TO APPLY DISTINCTIVE MO ANALYSIS EVEN IN THE CONTEXT OF RELATIONSHIP VIOLENCE CASES, THAT YOU ALWAYS HAVE TO APPLY IT, IF I'M UNDERSTANDING WHAT MR. UELMEN SAID. I BELIEVE THAT THAT SHARPLY DEFINES THE KEY LEGAL DISAGREEMENT THAT EXISTS BETWEEN THE DEFENSE AND THE PROSECUTION. THEY SAY YOU HAVE TO APPLY MO, DISTINCTIVE MO. WE SAY THAT YOU DON'T. NOW, I WOULD LIKE TO DRAW THE COURT'S ATTENTION TO WHAT PEOPLE VERSUS ZACK SAYS ON THIS QUESTION, BECAUSE WHAT THEY DO, AND AGAIN I KNOW YOUR HONOR HAS READ THIS CASE, BUT I JUST POINT OUT THAT WHAT ZACK DID IS HE ACTUALLY DISCUSSED THE CALIFORNIA CASE LAW LEADING UP TO ZACK AND THEY DID IT IN A FAIRLY SCHOLARLY AND VERY NICE FASHION IN TERMS OF LAYING OUT WHY THIS IS THE LAW IN THE STATE OF CALIFORNIA, AND AFTER DOING THAT THEY SAID:
"AFTER REVIEWING THE LEADING CASES IN THIS AREA" AND THAT INCLUDED CALIFORNIA SUPREME COURT CASES WHICH ARE STILL VALID PRECEDENT "FROM THESE PRECEDENTS, AS WELL AS COMMON SENSE, EXPERIENCE AND LOGIC, WE DISTILL THE FOLLOWING RULE: WHERE A DEFENDANT IS CHARGED WITH A VIOLENT CRIME AND HAS OR HAD A PREVIOUS RELATIONSHIP WITH THE VICTIM, PRIOR ASSAULTS UPON THE SAME VICTIM, WHEN OFFERED ON A DISPUTED ISSUE, E.G., INTENT, IDENTITY, MOTIVE, ET CETERA, ARE ADMISSIBLE BASED SOLELY UPON THE CONSIDERATION OF IDENTICAL PERPETRATOR AND VICTIM WITHOUT RESORT TO A DISTINCTIVE MODUS OPERANDI ANALYSIS OF OTHER FACTORS." SO THAT IS PRECISELY WHAT WE ARE SAYING HERE AND THAT IS ONE OF THE REASONS THAT WE RELIED HEAVILY ON ZACK, SIMPLY BECAUSE THEY STATED IT SO CLEARLY AND SO NICELY, BUT THERE ARE OTHER CASES THAT STATE IT AS WELL, BUT WE SIMPLY LIKE THE LANGUAGE THAT THEY USED HERE. NOW, COUNSEL, IN THEIR MOVING PAPERS, TREATED THIS IN A FOOTNOTE AND WHAT THEY SAID ABOUT ZACK IS THEY INTERPRETED IT IN THEIR MOVING PAPERS THE SAME EXACT WAY WE DID. WE SAID, LOOK, WE KNOW THERE IS THIS CASE. WE KNOW THIS IS WHAT IT SAYS. WE KNOW IT SAYS YOU DON'T APPLY MO ANALYSIS. YOUR HONOR, IT IS WRONG. DON'T FOLLOW IT. IT IS BAD LAW. NOW, I HAVE TO COMPLIMENT THEM ON TAKING WHAT IS A VERY GUTSY APPROACH, BECAUSE THAT IS AN ARGUMENT THAT ATTORNEYS DON'T LIKE TO MAKE, THAT THERE IS A CASE THAT IS SQUARELY -- SQUARELY ADDRESSES AN ISSUE AND SAY, YOUR HONOR, PLEASE IGNORE IT, IT IS BAD LAW, ESPECIALLY WHEN YOU CAN'T COME UP WITH ANY REAL ARGUMENTS TO ADVANCE THAT POSITION AND THERE IS NO CONFLICT IN THE CASE AUTHORITY, THERE IS NO SPLIT IN THE AUTHORITY. SO WHAT THEY DID IS THEY APPEARED TO MODIFY THE APPROACH THAT THEY TOOK IN THEIR RESPONSIVE PLEADING AND THE APPROACH THAT THEY TOOK YESTERDAY, BECAUSE NOW THEY APPEAR TO BE TRYING TO DISTINGUISH ZACK AND THEY DID IT ON TWO GROUNDS: NO. 1, MR. UELMEN SAID, WELL, THE MURDER IN ZACK WAS VERY SIMILAR TO THE PRIOR INSTANCES THAT WERE ADMITTED IN THAT CASE BECAUSE THE VICTIM WAS BEATEN TO DEATH, AND WHAT THE ZACK COURT WAS REALLY SAYING IS BECAUSE OF THE SIMILARITY OF THESE INSTANCES THEY WERE ADMISSIBLE. NOTHING COULD BE FURTHER FROM THE TRUTH AND I WOULD LIKE AGAIN TO QUOTE FROM ZACK. I WOULD LIKE BRIEFLY JUST TO SAY SOMETHING ABOUT THE FACTS OF THE CASE BECAUSE WHAT HAPPENED IS HE ABSOLUTELY BRUTALLY KILLED THIS WOMAN IN ZACK AND IN MANY WAYS THE HOMICIDE OF THE WOMAN IN ZACK WAS FAR MORE GRUESOME AND HORRIFIC THAN WHAT HAPPENED TO NICOLE BROWN SIMPSON. I WOULDN'T SAY THE SAME THING WITH RESPECT TO THE MURDER OF RON GOLDMAN. AND THE PRIOR INSTANCES INVOLVED BLACK EYES, AND I KNOW THAT IF MR. UELMEN HAD BEEN REPRESENTING THE DEFENDANT IN THAT CASE HE WOULD SAY, MY HEAVENS, WHAT ON EARTH DO BLACK EYES HAVE TO DO WITH THIS KIND OF A BRUTAL HORRIFIC MURDER. AND HERE IS WHAT ZACK SAYS ON THAT:
"COMMON SENSE, EXPERIENCE AND LOGIC COMPEL THE CONCLUSION THAT THE DISTINCT DIFFERENT MODUS OPERANDI SIGNATURE CALLING CARD ANALYSIS IN THE CASES RELIED UPON BY THE APPELLANT IS INAPPLICABLE IN THE PRESENT CONTEXT. HERE, GIVEN THE BRUTAL AND UNIQUE NATURE OF THE MURDER, APPELLANT'S PRIOR ASSAULTS UPON THE DECEDENT OF NECESSITY COULD NOT SURVIVE A DISTINCTIVE MODUS OPERANDI ANALYSIS. ONE COULD NOT KILL THE SAME PERSON TWICE, YET APPELLATE EXPRESSLY CONTENDS THAT HE HAD NOT PREVIOUSLY BROKEN THE DECEDENT'S TWO ANKLES NOR HAD HE PREVIOUSLY INFLICTED 21 WOUNDS TO HER BODY, NOR HAD HE PREVIOUSLY BLUDGEONED HER ABOUT THE HEAD," AND NOTWITHSTANDING THE FACT OF THESE GROSS DISPARITIES BETWEEN THE PRIOR CRIMES AND THE CHARGED CRIME THAT THE ZACK COURT CLEARLY RECOGNIZED, THEN SAID, "IT STILL COMES IN BECAUSE WE ARE NOT GOING TO APPLY DISTINCTIVE MO ANALYSIS." NOW, COUNSEL ALSO USES A SECOND WAY OF DISTINGUISHING ZACK, AND I WANT TO DISCUSS THAT AS WELL. THAT IS THE CONCERN THAT YOUR HONOR ADDRESSED, DOES ZACK DEAL WITH IMPEACHMENT? AND I HAVE READ THIS CASE FOUR OR FIVE TIMES OVER THE PAST NUMBER OF FIVE OR SIX YEARS.
GOOD. THEN I THINK YOU BEAT ME. AND I REREAD IT AGAIN OF COURSE WHEN COUNSEL SAID, WELL, THIS IS AN IMPEACHMENT CASE BECAUSE OVER THE PAST FIVE YEARS THAT I HAVE BEEN FAMILIAR WITH THE CASE IT NEVER EVEN REMOTELY OCCURRED TO ME, AND IT SEEMS THAT THAT ENTIRE ARGUMENT IS PREMISED ON ONE SENTENCE IN SACK AND THAT ONE SENTENCE IS THE ONE THAT I ALREADY QUOTED TO THE COURT WHERE THEY SAY THAT, AND I'M PARAPHRASING, IN THE ABSENCE OF EVIDENCE CHARACTERIZING A RELATIONSHIP, THE JURY IS GOING TO BE MISLED INTO BELIEVING THAT THE PARTING OF THE DEFENDANT AND THE VICTIM WERE ON AMICABLE BASIS, AND IT IS GOING TO BE MISLED INTO BELIEVING THAT THERE WERE NO PROBLEMS IN THE RELATIONSHIP. I DON'T SEE HOW THAT SINGLE INCIDENCE AND, THAT IS THE ONLY SENTENCE IN ZACK THAT EVEN ARGUABLY SUPPORTS THE DEFENSE POSITION, CAN BE READ AS CONSTITUTING AN IMPEACHMENT ISSUE. THEY DIDN'T MENTION, AS YOUR HONOR SAID, ANYWHERE THAT THE DEFENDANT TESTIFIED. WHAT THEY MENTIONED IS THAT THE DEFENDANT'S EXTRAJUDICIAL STATEMENTS WERE PUT IN EVIDENCE AND THE STATEMENT THAT HE GAVE WAS THAT HE WAS IN CARMEL FISHING AT THE TIME OF THE MURDER, AND THE PROSECUTION PUT IN EVIDENCE TO INDICATE THAT THERE WAS A VERY SERIOUS WINTER STORM AT THE TIME; THEREFORE IT WAS HIGHLY IMPLAUSIBLE. THE ONLY THING THAT HE SAID ABOUT THE RELATIONSHIP IS HE DID IN FACT ADMIT THAT HE HAD PREVIOUSLY THREATENED HIS WIFE. THERE WAS NOTHING IN THAT EXTRAJUDICIAL STATEMENT WHICH WAS -- WHICH WAS WRITTEN ABOUT BY THE COURT IN A STEP-BY-STEP POINT-BY-POINT MANNER THAT SAID ANYTHING TO THE EFFECT THAT HE GOT ALONG WITH HIS WIFE. IN FACT, QUITE THE CONTRARY, BECAUSE AS I SAID, DID HE ADMIT THE THREATS. IF THIS HAD BEEN AN IMPEACHMENT CASE, YOUR HONOR, THEN WE WOULD HAVE SEEN CASE LAW RELATING TO IMPEACHMENT. WE WOULDN'T HAVE GONE THROUGH AN 1101 ANALYSIS, WE WOULDN'T HAVE GONE THROUGH A RELATIONSHIP VIOLENCE CASE ANALYSIS. WE WOULD HAVE SEEN EVIDENCE CODE SECTIONS IN THE 700 SERIES CITED THAT DEAL WITH IMPEACHMENT. THIS IS STRICTLY, WHEN YOU READ IT, A 1101(B) RELATIONSHIP VIOLENCE CASE THAT DISCUSSES -- DISCUSSES THE ADMISSIBILITY OF THIS EVIDENCE FOR THE PURPOSES OF ESTABLISHING AN ELEMENT OF THE PROSECUTION'S CASE, AND IN THIS CASE IT WAS IDENTITY. SO I DO SEE ZACK AS BEING ON ALL FOURS WITH THE CASE AND THAT VIEWPOINT IS STRENGTHENED BY THE FACT THAT THE CASES RELIED ON IN ZACK ALSO WERE 1101(B)/RELATIONSHIP SILENCE CASES THAT SAID THAT THIS WAS ADMISSIBLE IN THE PROSECUTION'S CASE IN CHIEF FOR PROVING IDENTITY, FOR PROVING INTENT OR PROVING ABSENCE OF ACCIDENT OR MISTAKE. THERE ARE A VARIETY OF THEORIES THAT THE CASE LAW HAS PREVIOUSLY ALLOWED THIS ON. NOW, I WOULD SUBMIT TO YOUR HONOR THAT THERE IS NO CALIFORNIA AUTHORITY THAT IS INCONSISTENT WITH THE RULE OF LAW THAT I HAVE ARTICULATED SO FAR THIS MORNING; THAT IS, THAT THERE IS A DISTINCT WAY, A DISTINCT BODY OF CASE LAW FOR ANALYZING THESE KIND OF CASES AND THAT WE DON'T APPLY DISTINCTIVE MO ANALYSIS. THE CASE THAT COUNSEL RELIED ON IN THEIR PAPERS VERY HEAVILY WAS PEOPLE VERSUS HASTON AND THAT IS THE SEMINAL CASE WHICH USES THE LANGUAGE OF PRIOR MO AND TALKS ABOUT SIGNATURE CRIMES AND THE LIKE. I WOULD LIKE TO ILLUSTRATE, HOWEVER, WHY EVEN IN THE CONTEXT OF A ROBBERY CASE, WHERE WE THINK THAT THE DISTINCTIVE MO ANALYSIS WOULD ALWAYS APPLY, IT DOESN'T EVEN ALWAYS NECESSARILY APPLY THERE, BECAUSE THE ISSUE IS ONE OF LOGICAL RELEVANCE. AND I WOULD ASK YOUR HONOR TO IMAGINE A SCENARIO WHERE I WAS TRYING, FOR EXAMPLE, A DEFENDANT FOR A ROBBERY OR A SERIES OF ROBBERIES INVOLVING DEPARTMENT STORES AND IT TURNED OUT THAT IN THIS SERIES OF ROBBERIES THE DEFENDANT HAD COMMITTED THE ROBBERIES WITH A CO-CONSPIRATOR, WITH AN UNCHARGED CO-CONSPIRATOR IN ALL THREE EVENTS. AND I SAID, YOUR HONOR, I WANT TO PUT ON EVIDENCE OF THREE OTHER ROBBERIES THAT HAPPENED A LONG TIME AGO, THEY WERE OF RESTAURANTS, AND I WANT TO INTRODUCE THEM FOR THE PURPOSES OF SHOWING IDENTITY. AND YOU SAID TO ME, OKAY, WELL, MR. GOLDBERG, WHAT IS THE DISTINCTIVE MO? WHAT IS THE DISTINCTIVE SIGNATURE OF THE PRIOR ROBBERIES? THERE ARE DISTINCTIONS. I MEAN, THE CHARGED CRIMES INVOLVED DEPARTMENT STORES; THE UNCHARGED CRIMES INVOLVED RESTAURANTS. THERE ARE ALL KINDS OF OTHER DISTINCTIONS. AND I SAID, YOUR HONOR, THERE AREN'T ANY. THERE AREN'T ANY DISTINCTIONS THAT ARE PARTICULARLY UNIQUE, EXCEPT ONE, AND THAT IS THAT IN ALL OF THE PRIOR ROBBERIES THE DEFENDANT COMMITTED THEM WITH THE SAME CO-CONSPIRATOR, UNCHARGED CO-CONSPIRATOR, AS IN THIS CASE, AND ALL I WANT TO DO IS I WANT TO SHOW THAT THESE TWO PEOPLE ARE RELATED TO ONE ANOTHER, BECAUSE IF MY WITNESSES COME INTO COURT AND THEY IDENTIFY THE DEFENDANT CORRECTLY AND THEN IDENTIFY THE UNCHARGED CO-CONSPIRATOR CORRECTLY, THAT LENDS PERSUASIVE SUPPORT TO THE IDEA THAT THE DEFENDANT AND NOT SOME OTHER PERSON WAS THE ASSAILANT IN THE CHARGED CRIME, BECAUSE I HAVE SHOWN THIS RELATIONSHIP, SO THAT IS ALL I WANT TO SHOWN IS THE RELATIONSHIP. WELL, I THINK THAT YOUR HONOR WOULD ALLOW THE EVIDENCE IN, AND I BELIEVE THAT THE REASON THAT THE COURT WOULD ALLOW THE EVIDENCE IN, ASIDE FROM THE FACT THAT IT MAKES LOGICAL SENSE, IS THAT THE FACTS THAT I JUST RELATED TO YOUR HONOR ARE PRECISELY WHAT HAPPENED IN PEOPLE VERSUS HASTON, THE VERY CASE THAT THE DEFENDANT RELIED ON WHERE THE COURT SAID THAT SHOWING THAT RELATIONSHIP, EVEN THOUGH THERE WAS NOTHING PARTICULARLY DISTINCTIVE ABOUT THE CHARGE AND UNCHARGED CRIMES IN AND OF ITSELF, WAS RELEVANT FOR THE PURPOSES OF SHOWING IDENTITY. NOW, THIS IS INTERESTING BECAUSE HASTON WAS EXTENDED IN PEOPLE VERSUS BEAMON. IT IS NOT THE BEAMON CASE THAT YOUR HONOR MIGHT BE THINKING OF DEALING WITH THE STANDARD FOR ACCOMPLICES. IT IS AN EARLIER CASE THAT WE CITED IN OUR POINTS AND AUTHORITIES, AND HERE IS WHAT THEY SAY THERE:
"THE COMMON MARK OF IDENTICAL PERPETRATOR AND IDENTICAL VICTIM IN BOTH THE CHARGED AND UNCHARGED OFFENSES IS SO DISTINCTIVE THAT IT ADDS PERSUASIVE SUPPORT TO THE INFERENCE THAT THE DEFENDANT AND NOT SOME OTHER PERSON WAS THE PERPETRATOR." THAT WAS AT PAGE 633. NOW, WHAT THEY ARE SAYING, THEREFORE, IS THAT NOW NOT ONLY CAN I GET IN A PRIOR CRIME IF THEY INVOLVE THE TWO IDENTICAL ASSAILANTS, BUT I CAN GET IN ANY PRIOR CRIME THAT INVOLVES IDENTICAL VICTIM AND IDENTICAL PERPETRATOR BASED SOLELY UPON THAT SINGLE SIMILARITY, WITHOUT REGARD TO ANALYZING ANY OTHER ACTS OF SIMILARITY. WHAT THE POINT IS THAT I'M MAKING, YOUR HONOR, IS THAT THE CASE OF HASTON ITSELF, PARTICULARLY EXTENDED BY BEAMON, BELIE THE VERY RULE THAT THE DEFENSE IS ASKING YOUR HONOR TO APPLY IN THIS CASE, THAT IS, THE DISTINCTIVE MODUS OPERANDI RULE ALWAYS APPLIES, BECAUSE HERE ARE TWO CASES THAT IT DIDN'T APPLY, EVEN THOUGH THEY DEALT WITH RELATIVELY TRADITIONALLY 1101(B) SCENARIOS WHERE TYPICALLY YOU WOULD APPLY THE RULE. THEY ARE TYPICALLY SIGNATURE FOR ANOTHER REASON AND THAT IS THAT THEY WERE RELIED ON BY THE COURT IN ZACK, AND THE WAY THAT ZACK ARRIVED AT THE CONCLUSION THAT IDENTICAL PERPETRATOR AND IDENTICAL VICTIM IN AND OF ITSELF WAS SUFFICIENT TO GET THE PRIOR CRIMES IN, WAS BECAUSE THEY SAID THAT THIS WAS THE LOGICAL INFERENCE TO BE DRAWN FROM THE HASTON CASE, WHICH COUNSEL RELIED ON, AND FROM THE BEAMON CASE, WHICH THE PEOPLE RELIED ON. YOUR HONOR, I WOULD LIKE TO NOW TURN TO THE SECOND PART OF OUR ANALYSIS WHERE I WILL BE DISCUSSING A COMMON TRADITIONAL 1101(B) TYPE APPROACH.
ALL RIGHT. MR. GOLDBERG, BEFORE DO YOU THAT, LET ME TAKE A COURT REPORTER RECESS FOR FIFTEEN.
BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE PRESENT. MR. GOLDBERG, YOU WISH TO CONTINUE YOUR COMMENTS?
YES, THANK YOU. YOUR HONOR, JUST BEFORE WE BROKE, I WAS ABOUT TO LAUNCH INTO THE SECOND PART OF MY ARGUMENT, WHICH IS THE TRADITIONAL EVIDENCE CODE SECTION 1101(B) ANALYSIS. AND AS WE STATED, WE HAVE THREE SUB PARTS TO THAT. WE'RE TALKING ABOUT MODE OF EVIDENCE FOR THE PURPOSES OF PROVING IDENTITY, THAT'S ONE; MOTIVE EVIDENCE FOR THE PURPOSES OF PROVING INTENT, THAT'S NUMBER TWO; AND THEN ALSO, COMMON PLAN, SCHEME AND DESIGN, WHICH IS NUMBER 3. I WOULD LIKE TO JUST START BY MENTIONING SOMETHING THAT WAS STATED IN THE DEFENSE RESPONSE BRIEF, AND THAT WAS A DISAGREEMENT THAT THEY HAD WITH OUR POSITION REGARDING THE STANDARD OF REVIEW THAT IS INVOLVED BY A TRIAL JUDGE IN LOOKING AT THIS KIND OF EVIDENCE, BECAUSE WE TOOK THE POSITION THAT THIS WAS A QUESTION OF DISCRETION THAT INVOLVES AN ISSUE OF EVALUATING THE EVIDENCE TO DETERMINE ITS RELEVANCY. AND I JUST WANTED TO GIVE ANOTHER CITE ON THAT BECAUSE I DID REALIZE THAT THERE WAS AN AMBIGUITY IN THE CITE WE HAD GIVEN PREVIOUSLY. AND THAT IS PEOPLE VERSUS HASTON AT 69 CAL. 2D 246, THE SAME CASE THAT I PREVIOUSLY HAD CITED TO THE COURT AND THAT COUNSEL RELIED ON VERY HEAVILY IN HIS POINTS AND AUTHORITIES, WHERE THEY SAID:
"IT IS CLEAR OF COURSE THAT THE ADMISSION OF OTHER CRIMES EVIDENCE TO PROVE IDENTITY IS ESSENTIALLY A MATTER WITHIN THE SOUND DISCRETION OF THE TRIAL COURT." SO THIS IS AN ISSUE THAT INVOLVES AN EXERCISE OF DISCRETION. THAT IS THE STANDARD OF REVIEW THAT YOUR HONOR IS BEING ASKED TO USE HERE. NOW, I WOULD LIKE TO JUST START WITH THE LANGUAGE OF EVIDENCE CODE SECTION 1101 ITSELF BECAUSE SO FRANKLY WE DON'T GO BACK TO THE CODE SINCE WE'VE READ IT SO MANY TIMES. BUT IN 1101(B), IT SAYS THAT:
"NOTHING IN THE SECTION PROHIBITS THE ADMISSION OF EVIDENCE THAT A PERSON COMMITTED A CRIME, CIVIL WRONG OR OTHER ACT WHEN RELEVANT TO PROVE SOME FACT SUCH AS MOTIVE, OPPORTUNITY, INTENT PREPARATION, PLAN," AND SO ON. I WON'T QUOTE THE REST OF THE LANGUAGE. AND THEN IT GOES ON TO SAY:
"EXCEPT DISPOSITION TO COMMIT SUCH AN ACT." NOW, WHEN YOU LOOK AT THAT LANGUAGE -- AND MR. UELMEN SAYS, WELL, THIS IS A RULE OF EXCLUSION OTHER COMMENTATORS ARGUE NO, IT'S A RULE OF INCLUSION. I THINK THAT'S JUST A SEMANTICS DEBATE. WHAT IS APPARENT FROM THE LANGUAGE, YOUR HONOR, IS THAT THIS IS A RELEVANCY TEST. AND THAT IS PRECISELY WHY THE STANDARD OF REVIEW IS ONE OF DISCRETION, BECAUSE WHAT IS BEING ASKED OF THE COURT IS -- IN THE LANGUAGE OF THE STATUTE, IS IT RELEVANT TO ANY OF THE ENUMERATED PROVISIONS, ANY OF THE ENUMERATED IDEAS OR ANYTHING ELSE THAT IS AT ISSUE IN THE TRIAL, EXCEPT DISPOSITION. SO WHAT THAT MEANS IS THAT THE PROSECUTOR SIMPLY HAS TO SAY, "WE ARE INTRODUCING THIS FOR THE PURPOSES OF PROVING INTENT, IDENTITY, COMMON PLAN, SCHEME AND DESIGN OR ANYTHING ELSE THAT WE CAN LEGITIMATELY PROVE, AND THAT AS LONG AS THAT'S REASONABLE, IN OTHER WORDS, AS LONG AS OUR ARGUMENT IS REASONABLE AND ONE THAT A REASONABLE JURY COULD ACCEPT, THAT UNDER 1101(B), THE EVIDENCE IS ADMISSIBLE." THAT IS WHY I CHARACTERIZE 1101(B) AS BEING A MERE RELEVANCY TEST. NOW, AS SUPPORT FOR THAT PROVISION, OTHER THAN THE STATUTORY LANGUAGE, I ALSO WOULD CITE THE CASE THAT WAS EXTENSIVELY RELIED ON, ONE OF THE TWO CASES EXTENSIVELY RELIED ON BY THE DEFENSE YESTERDAY. THAT WAS PEOPLE VERSUS THOMAS, 20 CAL. 3D. 457 AT 465. THAT WAS A CHILD MOLESTATION CASE WHERE THE DEFENDANT MOLESTED A DAUGHTER, AND 10 YEARS EARLIER, HE HAD MOLESTED ANOTHER DAUGHTER. AND THE WAY THAT THE CASE WAS BEING CITED, YOU WOULD THINK THAT THIS WAS A VERY DAMAGING CASE TO THE PROSECUTION ON THE ISSUE OF THE ADMISSIBILITY OF EVIDENCE. BUT IN REALITY, WHAT THEY DID IS THAT THEY SET FORWARD A STANDARD EXPLAINING 1101(B) ANALYSIS THAT REALLY CLARIFIES THAT IT IS AN ISSUE OF RELEVANCY, A RELEVANCY TEST. AND WHAT THEY SAID IS THAT THE STANDARD IS, QUOTE:
"WHETHER THERE IS SOME CLEAR CONNECTION BETWEEN THE PRIOR OFFENSE AND THE ONE CHARGED SO THAT IT MAY BE LOGICALLY INFERRED THAT IF THE DEFENDANT IS GUILTY OF ONE, HE MUST BE GUILTY OF THE OTHER OR, AS THE MATTER IS SOMETIMES STATED, THE OTHER OFFENSES ARE SUFFICIENTLY SIMILAR AND POSSESS A SUFFICIENTLY HIGH DEGREE OF COMMON FEATURES OF THE ACT CHARGED, THAT THEY WARRANT THE INFERENCE THAT IF THE DEFENDANT COMMITTED THE OTHER ACTS, HE COMMITTED THE ACT CHARGED," END QUOTE. NOW, IT'S A LITTLE BIT CONVOLUTED PERHAPS, BUT ALL THEY ARE SAYING HERE IS, THEY ARE SAYING THAT IF THE PRIOR CRIME WARRANTS THE INFERENCE THAT IF THE DEFENDANT COMMITTED THE PRIOR ONE, HE ALSO COMMITTED THE CHARGED CRIME, THAT IT MEETS THE TEST OF 1101. THAT SOUNDS LIKE MERE RELEVANCY. THAT SOUNDS LIKE WHAT WE HAVE TO DO IS, WE HAVE TO ESTABLISH IT'S RELEVANT TO PROVE THE DEFENDANT IS GUILTY IN THIS CASE BECAUSE WE CAN USE IT TO PROVE CERTAIN OF THE ELEMENTS OF THE CRIME IN THIS CASE.
THE ISSUE OF SIMILARITY IS ONE THAT GOES TO RELEVANCE, LOGICAL RELEVANCE. AND NORMALLY SPEAKING, THERE IS GOING TO HAVE TO BE SOME SIMILARITY FOR THEM TO BE LOGICALLY RELEVANT. IN THE CASE OF PEOPLE VERSUS HASTON, THE ONLY SIMILARITY WAS IDENTICAL PERPETRATORS IN THE CHARGED AND UNCHARGED OFFENSE. AND PEOPLE VERSUS BEAMON, IT WAS IDENTICAL DEFENDANT AND IDENTICAL VICTIM. ZACK SAYS THE SIMILARITY OF IDENTICAL VICTIM AND IDENTICAL DEFENDANT IN AND OF ITSELF IS SUFFICIENT. SO WE ALWAYS HAVE TO APPROACH IT FROM THE STANDPOINT OF LOGICAL RELEVANCE AND ASK OURSELVES, WHAT IS IT THAT THE PROSECUTION IS TRYING TO PROVE HERE AND DOES THIS LOGICALLY PROVE THAT. AND NORMALLY SPEAKING, IF YOU APPLY THAT ANALYSIS, IN OTHER WORDS, A COMMON SENSE LOGICAL RELEVANCE ANALYSIS, THERE'S GOING TO HAVE TO BE AT LEAST SOME SIMILARITY. I THINK IF WE WANTED TO SHOW THAT THE DEFENDANT HAD PREVIOUSLY COMMITTED THE OFFENSE OF DRUNK DRIVING, HOW ON EARTH WOULD THAT MAKE IT LIKELY THAT HE COMMITTED THIS MURDER? IT HAS ABSOLUTELY NOTHING TO DO WITH IT WHATSOEVER FROM A LOGICAL, RELEVANCE STANDPOINT. BUT CLEARLY A SERIES OF OFFENSES COMMITTED AGAINST THE SAME VICTIM DO IN THIS CASE JUST AS THEY DO IN ZACK AND ZACK'S PROGENY. WHAT HAPPENED IN THOMAS BY THE WAY WAS THAT THE COURT DECIDED THAT ALTHOUGH THE PRIOR CRIME WAS TECHNICALLY RELEVANT UNDER 1101(B), BUT BECAUSE THERE WAS A 10-YEAR GAP, THE 10-YEAR GAP MADE IT SUCH THAT IT SHOULD NOT HAVE BEEN ADMITTED UNDER 352 OF THE EVIDENCE CODE. AND I WOULD ASK THE COURT TO JUST KEEP IN MIND FOR A PERIOD OF TIME THE FACTS OF THOMAS BECAUSE IT BECOMES RELEVANT WHEN WE DISCUSS PEOPLE VERSUS EWOLDT, WHICH DEALS WITH THE VERY, VERY SIMILAR FACT PATTERN AND WHICH IT WAS ANOTHER CASE THAT THE DEFENSE RELIES HEAVILY ON. AS WE SAID, PEOPLE VERSUS ZACK IS NOT THE ONLY RELATIONSHIP VIOLENCE CASE WHICH SUPPORTS THE PROSECUTION'S POSITION. I'M NOT GOING TO GO THROUGH THE PROSECUTION'S BRIEF AND GO THROUGH EACH OF THE OTHER CASES THAT WE FEEL ARE RELEVANT. I WOULD LIKE TO GO THROUGH SOME OF THE CASES WHERE IDENTITY WAS THE ISSUE IN RELATIONSHIP VIOLENCE CASES AND DISCUSS A LITTLE BIT ABOUT THOSE CASES AND WHY IT IS THAT THEY VERY CLEARLY SUPPORT THE ANALYSIS THE PROSECUTION IS PROFFERING HERE, WHICH IS THAT MOTIVE EVIDENCE IS RELEVANT TO PROVE IDENTITY AND RELATIONSHIP PROBLEMS ARE RELEVANT TO PROVE MOTIVE. THE EARLIEST CASE IS PEOPLE VERSUS ARGENTOS. IT'S A 1909 CASE. THIS DEMONSTRATES, AS MR. GORDON POINTED OUT, THAT WE HAVE ALMOST A HUNDRED YEAR HISTORY, MAYBE EVEN EARLIER BECAUSE I COULD HAVE -- WE COULD HAVE TRIED TO TRACE IT BACK EARLIER. WE DIDN'T. WE FELT THAT THAT WAS FAR ENOUGH. THAT WAS OBVIOUSLY BEFORE THE ENACTMENT OF THE EVIDENCE CODE. BUT THEY ARE APPLYING THE COMMON LAW PROVISIONS AS MR. UELMEN POINTED OUT. THE 1101(B) TYPE ANALYSIS WAS PART OF THE COMMON LAW AND HAS BEEN FOR MANY HUNDREDS OF YEARS. PEOPLE VERSUS ARGENTOS DEALT WITH THE SITUATION WHERE THERE WERE TWO GOLD PROSPECTORS AND ONE OF THE GOLD PROSPECTORS KILLED HIS BUSINESS PARTNER. SO IT IS A RELATIONSHIP CASE ONLY. IT'S DEALING WITH BUSINESS PARTNERS. EVIDENCE WAS INTRODUCED THAT THE DEFENDANT IN THAT CASE HAD BEEN ARRESTED FOR A CRIME. THE SUPREME COURT DID NOT TELL US WHAT THE CRIME WAS IN THEIR RECITATION OF FACTS. HE -- THE BUSINESS PARTNER, THE VICTIM ARRANGED FOR A BOND FORUM ON THAT CRIME AND DEMANDED REPAYMENT. SO IT'S SIGNIFICANT FROM A COUPLE PERSPECTIVES. NUMBER ONE, IT SHOWS ECONOMIC FRICTION AS BEING THE BASIS FOR MOTIVE EVIDENCE IN A RELATIONSHIP CONTEXT AS MS. BODIN SAID. BUT MORE IMPORTANTLY, HERE IS WHAT THE CALIFORNIA SUPREME COURT SAID WHERE THE ISSUE IS IDENTITY. THEY SAID:
"PROOF OF SOME OTHER CRIME MAY BE GIVEN WHERE IT TENDS TO SHOW MOTIVE FOR THE HOMICIDE IN QUESTION. IN CASES WHERE THE IDENTITY OF THE PERSON WHO COMMITS A CRIME IS ATTEMPTED TO BE PROVEN BY CIRCUMSTANTIAL EVIDENCE, EVIDENCE OF MOTIVE ON THE PART OF THE DEFENDANT CHARGED IS ALWAYS A SUBJECT OF PROOF AND THE FACT OF MOTIVE PARTICULARLY MATERIAL." SO AGAIN, THIS IS PRECISELY THE RULE THAT WE ARE ASKING THE COURT TO APPLY THAT WE CAN TRACE ALL THE WAY BACK TO 1909. WE WANT TO PROVE FRICTION. WE WANT TO PROVE PROBLEMS IN THE RELATIONSHIP. WE WANT TO PROVE A PATTERN OF ABUSIVE CONTROL BECAUSE THAT PROVES MOTIVE WHICH, IN THE SUPREME COURT'S WORDS, IS ALWAYS RELEVANT FOR THE PURPOSES OF ESTABLISHING IDENTITY. NOW, THE NEXT IDENTITY CASE THAT WE HAVE IN THE CONTEXT OF RELATIONSHIP VIOLENCE IS PEOPLE VERSUS MULLEN. THAT WAS A 1953 CASE AND DECIDED IN 1953. AND IN THAT CASE, THE DEFENDANT WAS ROMANTICALLY INTERESTED IN A FELLOW PRISONER. HE WAS INCARCERATED AT THE TIME. AND THE VICTIM IN THAT CASE HE PERCEIVED TO BE INTERFERING WITH THAT RELATIONSHIP. SO THIS IS A JEALOUSY CASE AND AN OBSESSION TYPE CASE, AS MS. BODIN ARGUED. AND THERE THE ISSUE WAS IDENTITY, WHO COMMITTED THE CRIME. AND THE COURT SAID:
"ANTAGONISM OR ENMITY BETWEEN A DEFENDANT AND THE VICTIM OF AN ASSAULT IS ADMITTEDLY RELEVANT TO THE ISSUE OF DEFENDANT'S IDENTITY AS THE ASSAILANT." SO THIS IS TELLING US THAT IN THE CONTEXT OF RELATIONSHIPS, WHERE THERE'S RELATIONSHIP BETWEEN THE DEFENDANT AND THE VICTIM, THE EVIDENCE OF ANTAGONISM, ENMITY IS RELEVANT, IS ADMISSIBLE TO PROVE IDENTITY. NEXT WE HAVE PEOPLE VERSUS HELFEND, WHICH WAS A CASE WHERE THE DEFENDANT MURDERED HIS FORMER WIFE'S HUSBAND BECAUSE OF JEALOUSY WITH RESPECT TO THE WIFE APPARENTLY. AND FOUR YEARS EARLIER, THERE WERE CERTAIN ACTS OF PROPERTY DESTRUCTION. SPECIFICALLY HE HAD BURNED DOWN THE VICTIM'S HOUSE. SO AGAIN, TALKING ABOUT PROPERTY DESTRUCTION. THERE WERE ALSO OTHER TYPES OF EVIDENCE SHOWING ANTAGONISM BETWEEN THE DEFENDANT AND THE VICTIM AND THE JEALOUSY THAT EXISTED IN THAT RELATIONSHIP, AND THE COURT AGAIN HELD THAT THE EVIDENCE CAME IN. AND THEN FINALLY, PEOPLE VERSUS DANIELS WHICH WAS CITED PROMINENTLY BY THE ZACK COURT WHERE THE DEFENDANT TRIED TO -- IT WAS AN ATTEMPTED MURDER CASE ACTUALLY WHERE THE DEFENDANT TRIED TO KILL HIS SPOUSE WITH A BOMB BY BLOWING HER UP. AND THERE THEY WANTED TO INTRODUCE EVIDENCE OF PRIOR QUARRELING AND PRIOR PROBLEMS IN THE RELATIONSHIP WHICH INCLUDED PHYSICAL VIOLENCE. AND THE PHYSICAL VIOLENCE AMOUNTED TO SIMPLE ASSAULTS. AND I'M SURE THAT IF MR. UELMEN WERE ARGUING THAT, HE WOULD SAY, "MY HEAVENS, WHAT ON EARTH DOES A SIMPLE ASSAULT HAVE TO DO WITH BLOWING SOMEONE UP? I MEAN THERE'S ABSOLUTELY NO SIMILARITY AT ALL THERE." BUT THE COURT SAID, QUOTE:
"IT IS ELEMENTARY, EVIDENCE OF MOTIVE TO COMMIT AN OFFENSE IS EVIDENCE OF THE IDENTITY OF THE OFFENDER.
"EVIDENCE SHOWING JEALOUSY, QUARRELS, ANTAGONISM OR ENMITY BETWEEN THE ACCUSED AND THE VICTIM OF A VIOLENT OFFENSE IS PROOF OF MOTIVE TO COMMIT THE OFFENSE," END QUOTE. SO WE HAVE MANY CASES WHICH HOLD THAT WE CAN INTRODUCE EVIDENCE FOR THE PURPOSES OF SHOWING IDENTITY, INCLUDING OF COURSE PEOPLE VERSUS ZACK EVEN UNDER A TRADITIONAL 1101(B) ANALYSIS. AND THESE CASES DO NOT INVOLVE SITUATIONS WHERE THE OTHER KINDS OF ACTS OF ABUSE NECESSARILY INVOLVE SIMILARITIES WITH THE CHARGED ACT AT ALL OTHER THAN THEY WERE DIRECTED AGAINST THE SAME VICTIM. NOW, THE SECOND 1101(B) THEORY THAT THE PROSECUTION HAS PRESENTED IS THAT THIS EVIDENCE IS ADMISSIBLE FOR THE PURPOSES OF PROVING MOTIVE WHICH IN TURN PROVES INTENT. AND COUNSEL SEEMED TO ARGUE THAT THE PROSECUTION IS ONLY ALLOWED TO USE THIS THEORY, IF I WAS UNDERSTANDING HIS ARGUMENT YESTERDAY, IF WE -- THEY HAVE CONCEDED THAT THE DEFENDANT COMMITTED THE CRIME AND THE ONLY ISSUE IS INTENT. THAT IS NOT TRUE. THE PROSECUTION BEARS THE BURDEN OF PROVING EVERY ELEMENT OF OUR OFFENSE. THERE ARE TWO CASES THAT CLARIFY THAT THAT IS IN FACT THE RULE. ONE IS PEOPLE VERSUS DANIELS, THAT'S 52 CAL. 3D. 815, WHERE THE SUPREME COURT SAID THAT THE DEFENDANT'S PLEA OF NOT GUILTY PUTS IN TO ISSUE ALL OF THE ELEMENTS OF THE OFFENSE AND THAT THE PROSECUTION IS ALLOWED TO INTRODUCE UNCHARGED MISCONDUCT FOR THE PURPOSES OF PROVING INTENT EVEN THOUGH THE DEFENSE HASN'T SPECIFICALLY IN SOME WAY STATED THAT THAT IS THE ONLY ISSUE INVOLVED IN THE CASE BECAUSE WE HAVE TO PROVE EVERY ELEMENT OF THE OFFENSE. THE SAME EXACT OBSERVATION WAS MADE BY THE UNITED STATES SUPREME COURT IN ESTELLE VERSUS MC GUIRE, WHICH I'LL ADDRESS IN A CONTEXT OF A DUE PROCESS ARGUMENT THAT THE DEFENSE MADE. THE CASE THAT WE BELIEVE IS MOST INSTRUCTIVE ON THE INTENT ISSUE -- BECAUSE WHAT YOUR HONOR MAY BE WONDERING IS, WELL, WE HAVE THESE AUTOPSY PHOTOGRAPHS, WE HAVE THE CRIME SCENE PHOTOGRAPHS. THEY VERY CLEARLY PORTRAY THAT THERE WAS A FIXED PURPOSE, FULL INTENT TO KILL, WHERE THE DEFENDANT LITERALLY WENT FOR THE JUGULAR IN THIS CASE. WHY DO WE NEED FURTHER EVIDENCE OF INTENT? AND WHAT I WOULD POINT OUT TO YOUR HONOR IS THE LAW THAT WE APPLY IN THE STATE OF CALIFORNIA WITH RESPECT TO PREMEDITATION BECAUSE THAT'S PRIMARILY WHERE THIS BECOMES AN ISSUE. AS YOUR HONOR KNOWS, FOR THE PURPOSES OF 1118 MOTION, FOR THE PURPOSES OF APPEAL, FOR THE PURPOSES OF A NEW TRIAL MOTION, ALTHOUGH THE JURY ISN'T INSTRUCTED ON THIS, THERE IS A THREE-PART TEST THAT WE USE IN CALIFORNIA FOR THE PURPOSES OF PREMEDITATION THAT WAS ESTABLISHED BY THE SUPREME COURT IN ANDERSON. THAT THREE-PART TEST IS THAT WE HAVE TO SHOW PLANNING ACTIVITY. WE HAVE TO SHOW MOTIVE. THAT'S THE SECOND. AND THEN THIRD, WE HAVE TO SHOW SOMETHING ABOUT THE MANNER OF THE KILLING AS INFERRED FROM THE CRIME ITSELF. NOW, THIS TEST WAS APPLIED BY THE CALIFORNIA SUPREME COURT AGAIN IN THE CASE OF PEOPLE VERSUS NICHOLAS, WHICH IS INSTRUCTIVE BECAUSE THIS IS A RELATIONSHIP VIOLENCE CASE, NICHOLAS. AND IN THAT, THE DEFENDANT KILLED HIS EX-WIFE AND THERE WAS EVIDENCE OF A BITTER AND LONG-STANDING GRUDGE THAT EXISTED BETWEEN THE TWO. IT INCLUDED WHAT COULD BE CHARACTERIZED AS STALKING EVIDENCE. IN ONE OF THE INSTANCES, THE VICTIM WAS AT A LAUNDROMAT, AND THE DEFENDANT SHOWED UP UNEXPECTEDLY, SIMILAR TO MANY OF THE INSTANCES IN OUR CASE, AND JUST STARED AT HER THROUGH THE WINDOWS OF THE LAUNDROMAT. CALIFORNIA SUPREME COURT -- BY THE WAY, THIS IS A 1991 CASE -- SAID THAT ALL OF THIS EVIDENCE WAS NOT ONLY ADMISSIBLE, BUT NECESSARY. AND HERE'S WHAT THEY SAID IN APPLYING THEIR ANALYSIS. THEY TALKED ABOUT HOW UNDER ANDERSON WE HAVE TO PROVE THESE THREE ELEMENTS. AND HERE'S WHAT THEY SAID ABOUT THE SECOND ELEMENT. THIS IS THE MOTIVE ELEMENT, YOUR HONOR. THEY SAID THAT THE PROSECUTION HAD TO PROVE -- THIS IS HAD TO PROVE," QUOTE:
"HIS MOTIVE TO KILL AS GLEANED FROM HIS PRIOR RELATIONSHIP OR CONDUCT WITH THE VICTIM," END QUOTE. SO THAT'S NOT SAYING ANY LONGER THAT THIS IS SOMETHING THAT THE PROSECUTION IS ENTITLED TO PROVE OR IS ALLOWED TO PROVE OR IS HELPFUL IF WE CAN PROVE THIS. THEY'RE SAYING WE HAVE TO PROVE THIS. WE ARE GOING TO HAVE TO, FOR THE PURPOSES OF ESTABLISHING ONE OF THE ELEMENTS OF THIS THREE-PRONG TEST, PUT IN EVIDENCE OF THE RELATIONSHIP OR CONDUCT WITH THE VICTIM IN ORDER TO GLEAN MOTIVE. THAT IS A RECENT PRONOUNCEMENT BY OUR CALIFORNIA SUPREME COURT, WHICH MAKES THIS EVIDENCE NOT ONLY ADMISSIBLE, BUT MANDATORY. AND TO EXCLUDE THIS EVIDENCE, YOUR HONOR, WOULD BE ESSENTIALLY TO CONVERT EVIDENCE CODE SECTION 1101(B) FROM A SHIELD INTO A SWORD BECAUSE IT WOULD BE -- TO CONVERT EVIDENCE CODE SECTION 1101(B) AND THAT FORUM OF ANALYSIS FROM THE NORMAL ANALYSIS THAT IS DESIGNED TO PRECLUDE IRRELEVANT EVIDENCE THAT WOULD CAUSE THE JURY TO VOTE GUILTY FOR AN IMPROPER REASON AND INTO A SWORD WHICH WOULD DEPRIVE AFFIRMATIVELY THE PROSECUTION OF ESTABLISHING WHAT IS AN ESSENTIAL ELEMENT OF OUR CASE, SOMETHING THAT WE HAVE TO PROVE. AND FOR THAT REASON, YOUR HONOR, WE SUGGEST THAT THIS EVIDENCE CLEARLY IS ADMISSIBLE TO ESTABLISH INTENT. NOW, THAT BRINGS ME TO THE THIRD PART OF THE 1101(B) ANALYSIS. AND THAT'S PRIOR COMMON PLAN, SCHEME AND DESIGN. AND I'M GOING TO RELY ON ONE CASE FOR THAT. THAT'S PEOPLE VERSUS EWOLDT. IT IS THE SAME CASE THAT AGAIN WAS RELIED ON EXTENSIVELY BY COUNSEL YESTERDAY. AS I SAID, IT'S FACTUALLY SIMILAR TO THOMAS IN THE SENSE THAT IT'S A CHILD MOLESTATION CASE. I SUPPOSE IN SOME SENSE, YOU COULD CONSIDER IT TO BE A RELATIONSHIP TYPE OF A CASE ALTHOUGH IT'S IN A SEXUAL ASSAULT CONTEXT. AND THE PROSECUTION WANTED TO INTRODUCE EVIDENCE THAT THE DEFENDANT HAD 12 YEARS, ACCORDING TO MY CALCULATIONS, EARLIER MOLESTED ANOTHER DAUGHTER WHO WAS SEPARATED IN AGE FROM THE CHARGED VICTIM. HE WAS NEVER TRIED FOR THOSE EVENTS. HE WAS NEVER CONVICTED FOR THE EARLIER CRIME. NOW, THIS CASE IS VERY INTERESTING AND IT'S VERY CURIOUS THAT COUNSEL NOT ONLY CITED BUT RELIED ON IT SO PROMINENTLY, BECAUSE THIS IS ONE OF THOSE CASES THAT'S KEPT IN THE PROSECUTION'S TREASURE TROVE OF FAVORITE CASES TO PULL OUT WHEN WE'RE TALKING ABOUT 1101(B) ANALYSIS. IT'S PROBABLY A BAD CHOICE TACTICALLY ON THE PART OF THE DEFENSE TO HAVE RELIED SO HEAVILY ON THIS CASE BECAUSE QUITE FRANKLY, WHEN I FIRST LOOKED AT THE CASE WHEN IT CAME OUT QUITE RECENTLY, WHAT THEY HAVE DONE IS, THEY'VE SIGNIFICANTLY CHANGED CALIFORNIA LAW ON 1101(B) EVIDENCE AND THEY HAVE CREATED THIS WHOLE NEW THEORY OF ADMISSIBILITY, THAT BEING COMMON PLAN, SCHEME AND DESIGN IN A WAY THAT DID NOT EXIST PRIOR TO EWOLDT. AND THEY SPECIFICALLY SAID THAT. AND WHAT THEY SAID IS, THEY SAID EVEN IF IDENTITY ISN'T AN ISSUE, EVEN IF INTENT ISN'T AN ISSUE, YOU STILL CAN INTRODUCE EVIDENCE ON COMMON PLAN, SCHEME AND DESIGN BECAUSE IT IS A THIRD INDEPENDENT THEORY. PRIOR TO EWOLDT, WE WERE UNDER THE IMPRESSION THAT WE COULD ONLY GET COMMON PLAN, SCHEME AND DESIGN EVIDENCE IF IT WAS DIRECTLY RELEVANT TO PROVE IDENTITY OR INTENT. SUPREME COURT SAYS NO, THAT'S WRONG. YOU CAN GET THIS IN AS A THIRD INDEPENDENT THEORY THAT STANDS ON ITS OWN INDEPENDENT OF THE OTHERS. NOW, COUNSEL SEEMS TO BE CITING EWOLDT -- IF AGAIN, I'M UNDERSTANDING HIS ARGUMENT -- FOR THE PROPOSITION THAT WE HAVE TO SHOW THAT ALL OF THE INCIDENTS WERE A PLAN IN THE SENSE THAT WE WOULD HAVE TO SHOW THAT WHEN THE DEFENDANT FIRST STARTED TO ABUSE NICOLE SIMPSON IN '77, '78, WHICH IS ONE OF OUR FIRST ACTS, THAT IN HIS MIND, HE THOUGHT TO HIMSELF, "WELL, YOU KNOW, GEE, I THINK I'M GOING TO START ABUSING HER NOW." AND THEN SOMETIME AROUND 1989, "I THINK WE'RE GOING TO HAVE A KNOCK-DOWN DRAG-OUT INCIDENT THAT WILL RESULT IN HER CALLING THE POLICE AND RUNNING OUT OF THE HOUSE WITH HER CLOTHES TORN OFF." AND THEN AROUND DECEMBER OF '93, "I THINK I'LL BARGE DOWN -- BREAK DOWN THE DOOR TO HER HOME AND HER BEDROOM DOOR AND CAUSE HER TO CALL 911." AND THEN AROUND THE MIDDLE OF '94, "I THINK I'LL KILL HER." THAT IS CLEARLY NOT THE SENSE IN WHICH COMMON PLAN, SCHEME AND DESIGN IS USED BY THE COURTS, AND WE WERE TOLD THAT VERY CLEARLY IN EWOLDT BECAUSE HERE'S WHAT THEY SAID. EWOLDT, AS THE COURT IS PROBABLY AWARE, OVERRULED THE CASE OF PEOPLE VERSUS TASSEL, WHICH WAS A PROBLEMATIC CASE IN THE AREA OF 1101(B) EVIDENCE. AND WHAT THEY SAID ABOUT TASSEL WAS, THEY SAID THAT TASSEL WAS BASED UPON, QUOTE:
"THE ERRONEOUS PREMISE THAT A COMMON DESIGN OR PLAN CANNOT BE ESTABLISHED UNLESS ALL OF THESE ACTS ARE PART OF THE SINGLE CONTINUING CONCEPTION OR PLOT," END QUOTE. THEY ARE MAKING IT CRYSTAL CLEAR THAT WE DO NOT HAVE TO PROVE THAT WHEN THE DEFENDANT STARTED THE ACTS OF ABUSE, HE HAD CONTEMPLATED THAT THEY WERE ALL GOING TO BE SOMETHING THAT WOULD EVENTUALLY LEAD UP TO THE MURDER OF THE VICTIM. RATHER, WHAT THE COURT SAYS IN EWOLDT -- AND THIS IS AT PAGE 403. THEY SAY THAT RATHER, THE TERM SIMPLY MEANS THAT, QUOTE:
"RATHER THAN A SERIES OF SIMILAR SPONTANEOUS ACTS," END QUOTE, WE MUST SHOW A COMMON DESIGN. SO THE ISSUE IS, ARE THESE A SERIES OF SPONTANEOUS ACTS? IS IT A COINCIDENCE THAT HE JUST HAPPENED TO HAVE COMMITTED THE INCIDENTS IN 1987, '88 THAT IS TOTALLY UNRELATED TO THE 1989, THAT HAS NOTHING TO DO WITH THE 1993, HAS NOTHING TO DO WHATSOEVER WITH THE MURDER? ARE THEY JUST A SERIES OF SPONTANEOUS DISCONNECTED ACTS OR RATHER, WERE THEY ALL COMMITTED WITH THE SAME DESIGN IN MIND?
WELL, THERE ARE A COUPLE WAYS OF DOING IT. A LOT OF THAT IS GOING TO BE ADDRESSED BY MR. GORDON. ONE OF THE THINGS THAT WE DID IN OUR --
YES. THERE WAS A LITTLE MORE, IF THE COURT WOULD ALLOW. WE USED THE POWER OF CONTROL WHEEL IN OUR POINTS AND AUTHORITIES, AND THAT'S GOING TO BE EXPLAINED IN SOME MORE DETAIL, YOUR HONOR. BUT AT THE HEART OF THE WHEEL IS THE IDEA OF POWER AND CONTROL. THE SPOKES RADIATING OUT FROM THAT WHEEL DEAL WITH A LARGE NUMBER OF DIFFERENT KINDS OF INSTANCES, THE SAME KINDS OF INSTANCES --
I THINK -- LET ME BE A LITTLE MORE DIRECT THEN IN MY QUESTION. IS THIS SORT OF A BACK DOOR WAY THEN TO BRING IN BATTERED WOMAN'S SYNDROME IN THE TOTALITY OF WHAT WE'RE TALKING ABOUT HERE?
IT DOESN'T NECESSARILY HAVE TO BE, YOUR HONOR, BECAUSE WHAT IS INTERESTING IS THAT IF WE TRACE THE CASE LAW AS WE DID AND AS MS. BODIN DID -- AND WE CAN TRACE IT BACK LONG BEFORE A LOT OF THESE STUDIES AND THE EMPIRICAL EVIDENCE EVEN EXISTED -- THEY WERE STILL ALLOWING IN THIS KIND OF EVIDENCE. AND I DON'T KNOW IF THEY CALLED IT POWER AND CONTROL PER SE. I DON'T KNOW IF THEY WERE NECESSARILY AS SOPHISTICATED AND PRECISE AS WE ARE PERHAPS TODAY. THEY TALKED ABOUT JEALOUSY, QUARREL, ENMITY, ANTAGONISM, THEY TALKED ABOUT ASSAULTS. BUT THEY SAID THAT THIS COMES IN FOR THE PURPOSES OF SHOWING WHAT THE RELATIONSHIP IS. AND THAT WAS EVEN BEFORE THEY HAD THIS KIND OF EMPIRICAL RESEARCH. SO WE CAN USE COMMON SENSE AS WELL AS EMPIRICAL RESEARCH.
AGAIN, AS I SAID, THAT'S AN 1107 ARGUMENT. WHAT I'M SAYING IS, EVEN WITHOUT 1107, IT STILL COMES IN. WE COULD ARGUE COMMON SENSE. WE CAN SAY, LADIES AND GENTLEMEN OF THE JURY, LOOK AT THE FACTS. LOOK AT WHAT HAPPENED HERE. THIS IS A PATTERN OF ACTIVITIES. THEY ARE NOT SPONTANEOUS INSTANCES. THEY ARE DIRECTED TOWARDS A PARTICULAR GOAL. THEY HAVE A PARTICULAR THEME IN MIND THAT RUNS THROUGHOUT THEM. AND THEY CAN USE THEIR COMMON SENSE FOR THE PURPOSES OF ANALYZING IT. I'M NOT SAYING AN EXPERT WOULDN'T BE HELPFUL AT ALL. I THINK THAT IT WOULD BE. AND THE ISSUE OF EXPERT TESTIMONY IS AGAIN SOMETHING THAT MR. GORDON WILL ADDRESS. BUT THE POINT IS THAT EVEN WITHOUT EXPERT TESTIMONY, WHAT THESE CASES DEMONSTRATE IS THAT WE CAN STILL USE COMMON SENSE FOR THE PURPOSES OF ALLOWING THIS EVIDENCE IN. AND I SHOULD ADD, YOUR HONOR, THAT IN THE EWOLDT CASE, I DON'T BELIEVE THERE WAS EXPERT TESTIMONY THAT WAS INTRODUCED FOR THE PURPOSES OF ALLOWING THIS COMMON PLAN, SCHEME AND DESIGN EVIDENCE IN.
WELL, NO. THE REASON FOR MY CONCERN THOUGH IS THAT 1107 SAYS THAT YOU CAN'T USE THE EXPERT TESTIMONY REGARDING BATTERED WOMAN'S SYNDROME IN A PARTICULAR SITUATION THAT WE MAY BE BACK-DOORING INTO HERE. THAT'S MY CONCERN, IS WHERE YOUR ARGUMENT IS GOING.
I AM SORRY. IS YOUR HONOR -- IF I'M UNDERSTANDING WHAT THE COURT IS SAYING, THAT IF WE CAN'T CALL THE EXPERT, WE CAN'T EVEN MAKE THE ARGUMENT WITHOUT THE EXPERT?
NO. I'M JUST ASKING YOU, HOW CAN YOU MAKE THE ARGUMENT WITHOUT HAVING AN EXPERT FOUNDATION FOR THIS IS WHAT IT IS?
IT'S A PRACTICAL QUESTION THAT I'M ASKING YOU. THAT WHAT YOU'RE SAYING WILL NOT MAKE ANY SENSE UNLESS YOU CAN PUT IT INTO THE BATTERED WOMAN'S SYNDROME CONTEXT. BUT I HAVE TO DEAL WITH THE 1107 PROSCRIPTION.
SO TO TELL ME THAT ONE THING MAKES COMMON SENSE DOESN'T TELL ME HOW I GET AROUND 1107, THE LAST -- 1107(A), THE LAST PHRASE.
WELL, NO. WHAT I AM SAYING, YOUR HONOR, LET'S SAY -- AND I HOPE THE COURT WILL NOT DO THAT AND WE BELIEVE THE COURT WILL NOT EXCLUDE EXPERT TESTIMONY. BUT LET'S SAY THAT THE COURT FOR SOME REASON WOULD NOT ALLOW US TO PUT ON EXPERT TESTIMONY AS TO THE CHARACTERISTICS OF A BATTERED -- OF A RELATIONSHIP INVOLVING A BATTERED WOMAN BECAUSE YOU FELT THAT THAT CAME UNDER THE PROSCRIPTION. ISN'T IT STILL POSSIBLE TO ARGUE THAT WE HAVE A LOT OF EVIDENCE TO SHOW THAT THE DEFENDANT WAS A VERY JEALOUS AND POSSESSIVE MAN? THEY ARGUED THAT IN DE MOSS. DE MOSS WAS AN EARLY CASE. THEY DIDN'T USE EXPERT TESTIMONY THERE. THEY DIDN'T HAVE THIS TESTIMONY THERE. IN THAT CASE, THE DEFENDANT ALSO MADE COMMENTS TO THE EFFECT OF, "IF I CAN'T HAVE HER, NO ONE WILL." THESE ARE COMMENTS THAT A JURY CAN UNDERSTAND EVEN IF AN EXPERT DOESN'T EXPLAIN THEM. WE CALL IT ESTRANGEMENT. WE USE NEW LABELS NOW THAT COME FROM THE EMPIRICAL LITERATURE AND THE SCIENTIFIC LITERATURE. BUT EVERYONE UNDERSTANDS THE CONCEPT OF, "IF I CAN'T HAVE HER, NO ONE WILL." WE SAY IT IS ESTRANGEMENT NOW, BUT YOU CAN UNDERSTAND IT ON A COMMON SENSE LEVEL. YOU CAN UNDERSTAND THAT THIS WAS A MAN WHO HAD THE ABSOLUTE NEED TO CONTROL THIS WOMAN IN EVERY ASPECT OF HER LIFE. YOU CAN UNDERSTAND THAT THIS IS A MAN WHO WAS VERY ABUSIVE TOWARDS THIS WOMAN WITHOUT AN EXPERT AND YOU CAN UNDERSTAND WHEN IT FINALLY BECAME APPARENT TO HIM THAT HE WAS GOING TO LOSE HER, THAT EVERYTHING THAT HE HAD DONE IN THE PAST THAT HAD WORKED FOR THE PURPOSES OF CONTROLLING HER, THAT HAD KEPT HER WITH HIM, THAT HAD PREVENTED HER FROM LEAVING WAS NO LONGER WORKING. AND AROUND THE TIME THAT SHE SENT THAT MESSAGE TO SOJOURN, AROUND THE TIME THAT SHE MADE THE COMMENTS THAT MADE IT CLEAR, "I AM FINALLY GOING TO CUT OFF THIS RELATIONSHIP," A JURY CAN UNDERSTAND THAT HIS ONLY -- THE ONLY THING THAT WAS LEFT FOR HIM TO DO AT THAT POINT WAS TO KILL HER. I MEAN HE HAD TRIED EVERYTHING ELSE. HE HAD TRIED EVERYTHING THAT COMMON SENSE WOULD INDICATE THAT YOU CAN DO TO CONTROL SOMEONE. HE TRIED TO TAKE AWAY HER SENSE OF PERSONAL DIGNITY THROUGH THE BELITTLEMENT, THROUGH THE NAME CALLING. HE TOOK AWAY HER SENSE OF FINANCIAL SECURITY THROUGH THE IRS LETTER. HE TOOK AWAY HER SENSE OF PHYSICAL SECURITY THROUGH THE ABUSE AND THE VIOLENCE. AND THEN WHEN THERE WASN'T ANYTHING ELSE THAT HE COULD THINK OF TO TAKE AWAY FROM HER, HE TOOK AWAY HER LIFE. AND I BELIEVE THAT THAT IS THE KIND OF A FACT PATTERN THAT A JURY CAN UNDERSTAND AND CAN APPRECIATE. THEY DO HAVE TO BRING THEIR OWN LIFE EXPERIENCES AND THEIR COLLECTIVE EXPERIENCES TO BEAR ON A CASE LIKE THIS, THE COMMUNITY WISDOM. I THINK WHEN YOU DO THAT -- WHEN THEY DO THAT, THEY CAN UNDERSTAND THE EVIDENCE. I'M NOT SAYING THAT EXPERT TESTIMONY WOULD BE INSTRUCTIVE OR RELEVANT. I THINK IT WOULD. MR. GORDON IS GOING TO DISCUSS THAT FURTHER. I'M SIMPLY SAYING THAT IT'S NOT ABSOLUTELY NECESSARY. YOUR HONOR, I'D INTENDED NOW TO SWITCH TO THE ISSUE OF DUE PROCESS, WHICH ISN'T GOING TO TAKE ME VERY LONG, AND I MAY GET INTO 352 UNLESS THE COURT HAD SOME FURTHER QUESTIONS BEFORE WE LEFT COMMON PLAN, SCHEME AND DESIGN.
THANK YOU. NOW, THE ISSUE OF DUE PROCESS I DON'T WANT TO SPEND A LOT OF TIME ON BECAUSE COUNSEL DIDN'T ARGUE IT EXTENSIBLY. WE BELIEVE THAT THE MATTER IS ABSOLUTELY CONVINCINGLY DISPOSED OF IN ESTELLE VERSUS MC GUIRE. THAT'S A UNITED STATES SUPREME COURT CASE WHICH, INTERESTINGLY ENOUGH, IS A RELATIONSHIP VIOLENCE CASE IN THE SENSE THAT THE DEFENDANT WAS CHARGED WITH THE MURDER OF HIS INFANT CHILD. THERE WAS TESTIMONY VERY SIMILAR TO THE TESTIMONY THAT WE HEARD HERE TODAY FROM A NEIGHBOR THAT HEARD -- OVERHEARD THE TYPES OF ACTIVITIES THAT SHE ASSOCIATED WITH ABUSING THE CHILD. IT WASN'T DESCRIBED IN THAT MUCH DETAIL BY THE SUPREME COURT, UNITED STATES SUPREME COURT. THERE WAS EVIDENCE IN THAT CASE THAT THE CHILD HAD SUFFERED A SEVEN-WEEK OLD RIB FRACTURE AND A SIX-WEEK OLD RECTAL TEAR. AND ALL OF THAT WAS INTRODUCED UNDER CALIFORNIA LAW. IT ORIGINATED IN CALIFORNIA FOR THE PURPOSES OF DEMONSTRATING UNDER 1101(B) THE IDENTITY OF THE PERPETRATOR BECAUSE THE QUESTION WAS, WHO COMMITTED THIS CRIME, PERPETRATED THIS CRIME ON THIS CHILD. AND THE UNITED STATES SUPREME COURT SAYS BASICALLY, "ONCE THE EVIDENCE HAS COME IN UNDER STATE EVIDENTIARY PROVISION, WE ARE NOT GOING TO REEVALUATE IT UNDER THE DUE PROCESS CLAUSE. THAT'S IT." ONCE IT IS DETERMINED TO BE RELEVANT UNDER EVIDENCE CODE SECTION 1101(B), OUR ANALYSIS IS FINISHED. THERE IS NO DUE PROCESS ANALYSIS, WHICH MEANS THAT THE ONLY CONCERNS THAT ARE IN FRONT OF YOUR HONOR LEGALLY SPEAKING ARE CALIFORNIA EVIDENTIARY LAW; IN OTHER WORDS, THE RELATIONSHIP VIOLENCE CASES AND 1101(B) AND THEN 352. AND ONCE YOUR HONOR DISPOSES OF THOSE ISSUES, THERE IS NO INDEPENDENT DUE PROCESS ARGUMENT. AND MC GUIRE MAKES THAT VERY CLEAR.
WELL, IT'S PROBABLY ALSO BECAUSE FEDERAL RULES 403 AND 404 ARE VIRTUALLY CARBON COPIES OF CALIFORNIA'S.
THAT'S CORRECT. FINALLY, EVIDENCE CODE SECTION 352. THERE WERE SEVERAL 352 ARGUMENTS THAT WERE MADE BY COUNSEL. I AGAIN POINT BACK TO THE STATUTE ITSELF, 352, BECAUSE WE TEND TO USE SHORTHAND TERMS TO DESCRIBE IT. AND SOMETIMES WE HEAR ATTORNEYS SAYING MORE PREJUDICIAL THAN PROBATIVE. I BELIEVE I HEARD MR. UELMEN USING THE PHRASE JUST PREJUDICIAL. HE CUT OUT THE PROBATIVE PART ALTOGETHER. BUT THAT IS NOT WHAT THE STATUTE SAYS. I MEAN, BOTH ARE MISSTATEMENTS. IT SAYS THAT IT'S GOT TO BE SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE. AND I CALL THE COURT'S ATTENTION AND RELY ON THAT WORD "SUBSTANTIALLY" BECAUSE IT'S IMPORTANT WHENEVER WE'RE ENGAGING IN 352 ANALYSIS, BECAUSE WHAT THAT MEANS IS THAT IF IT'S A CLOSE CASE, PROSECUTION WINS. OR EVEN IF WE WERE TO IMAGINE -- AND I'M NOT SUGGESTING THIS IS THE CASE. IT VERY CLEARLY ISN'T. IF THE COURT WERE OF THE MIND SET IT'S SLIGHTLY MORE PREJUDICIAL THAN PROBATIVE, WE STILL WIN BECAUSE UNLESS IT'S SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE, IT IS NOT EXCLUDABLE UNDER 352. I WANTED TO DIGRESS FOR JUST ONE SECOND IN THE 352 ARGUMENT, AND THAT WAS TO MENTION THE CHART THAT WE PREPARED FOR YOUR HONOR TODAY. YOUR HONOR DIRECTED US TO PREPARE SOMETHING IN WRITING THAT SYNTHESIZED THE EVIDENCE. AS MS. BODIN POINTED OUT AT THE VERY, VERY BEGINNING OF HER ANALYSIS AND I BELIEVE MR. GORDON MAY HAVE -- I'M NOT POSITIVE -- ALL OF THE ITEMS THAT WERE CONTAINED IN THE DOCUMENT OF THE PROSECUTION'S BRIEF, WE DID NOT TAKE THE POSITION THAT ALL OF THEM WERE ADMISSIBLE IN OUR CASE IN CHIEF. WE SAID WE UNDERSTAND THAT IS NOT THE CASE. THEY MAY BE ADMISSIBLE FOR OTHER PURPOSES, AND THAT WE WANTED TO TAKE THIS AS AN OPPORTUNITY TO FIRST LAY OUT EVERYTHING THAT WE KNEW ABOUT THE RELATIONSHIP AND WE ALSO WANTED TO TAKE THE OPPORTUNITY TO PUT THE DEFENDANT ON NOTICE TO A CERTAIN EXTENT AS TO THE KINDS OF EVIDENCE THAT WE WERE SEEKING TO INTRODUCE AND ALSO BECAUSE THIS MIGHT COME UP IN SOME OTHER CONTEXT. WHAT WE WERE DIRECTED TO DO -- AND WE WERE ALL VERY TIRED LAST NIGHT AFTER THE EVENTS IN COURT AND WE WERE WORKING ON THIS -- THE DOCUMENT THAT YOUR HONOR HAD ASKED US TO, WE WERE TRYING TO ASK OURSELVES WHAT IT IS EXACTLY THAT THE JUDGE HAS ASKED US TO DO. AND OUR INTERPRETATION WAS, HE IS ASKING US TO ELIMINATE THOSE, TO SPECIFY WHICH ELEMENTS WE DO NOT BELIEVE ARE ADMISSIBLE RATHER THAN JUST MAKING A GENERAL STATEMENT. AND IT WAS ALSO OUR INTERPRETATION THAT IN ESSENCE, WHAT THE COURT WAS IN A SENSE ASKING US TO DO WAS TO ENGAGE -- AND I MAY BE WRONG IN THIS -- BUT TO ENGAGE IN OUR OWN 352 ANALYSIS AND TO TAKE CERTAIN ITEMS WHERE THERE MIGHT BE EXTENSIVE CROSS-EXAMINATION OR EXTENSIVE IMPEACHMENT OR SO ON THAT WOULDN'T BE AS PROBATIVE TO THE PROSECUTION'S CASE AND LINE THOSE THROUGH. AND THAT WAS OUR INTERPRETATION OF WHAT THE COURT WANTED. SO TO A CERTAIN EXTENT, AND I'M NOT SAYING THAT THE COURT DOESN'T HAVE TO OBVIOUSLY ENGAGE IN ITS OWN ANALYSIS OR THAT THE COURT CAN RELY ON THE PROSECUTION. I'M NOT SUGGESTING THAT AT ALL. I'M JUST SAYING THAT IN MANY RESPECTS, WE WENT THROUGH LAST NIGHT THE SAME KIND OF ANALYSIS THAT YOUR HONOR IS GOING TO BE GOING THROUGH. NOW, THE ISSUE OF PREJUDICE HAS ALSO BEEN WELL DEFINED BY THE CASE LAW. AND WE KNOW WHAT THEY MEAN BY THAT TERM. THEY DON'T MEAN EVIDENCE WHICH TENDS TO INCRIMINATE THE DEFENDANT BECAUSE OBVIOUSLY ALL EVIDENCE THAT WE'RE INTRODUCING IS SUPPOSED TO ACCOMPLISH THAT END. IT HAS BEEN DEFINED BY THE CALIFORNIA SUPREME COURT IN PEOPLE VERSUS THOMPSON -- I CAN'T RECALL WHETHER WE CITED THAT IN OUR CASE. IT'S AT 27 CAL. 3D. AT PAGE 317 -- 27 CAL. 3D. 317 WHERE THEY SAID THAT:
"IT IS THE TENDENCY TO CONDEMN NOT BECAUSE HE IS BELIEVED GUILTY OF THE PRESENT CHARGE, BUT BECAUSE HE HAS ESCAPED UNPUNISHED FROM OTHER OFFENSES," END QUOTE. AND THAT IS ALSO REFLECTED IN THE CASE OF EWOLDT. SO THE IDEA IS THAT IN CERTAIN INSTANCES, WE ARE CONCERNED THAT THE JURY MAY DEVELOP THE MIND SET THAT, "THIS GUY HAS GOTTEN AWAY WITH THIS KIND OF THING BEFORE, AND I'M NOT REALLY SURE THAT HE'S GUILTY NOW, BUT I WANT TO PUNISH HIM FOR WHAT HAPPENED BEFORE. SO I AM GOING TO VOTE GUILTY ANYWAY." THAT IS THE KIND OF STATE OF MIND THAT WE ARE CONCERNED ABOUT WHEN WE TALK ABOUT PREJUDICE IN THE CONTEXT OF 352 AND 1101(B) CASES. NOW, IF THERE WAS EVER A CASE WHERE YOU WOULD THINK THAT WOULD BE TRUE, YOU WOULD THINK IT WOULD BE PEOPLE VERSUS EWOLDT, WHERE, ACCORDING TO MY CALCULATION, I THINK THERE WAS 12 YEARS -- AND I DID IT BASED ON THE AGES OF THE CHILDREN. SO IT'S POSSIBLE THAT I COULD BE A LITTLE BIT OFF, BUT PROBABLY NOT FAR -- THERE WAS 12 YEARS BETWEEN THE ACTS OF MOLESTATION OF THE FIRST CHILD AND ACTS OF MOLESTATION IN THE CHARGED OFFENSE, AND HE WAS NEVER TRIED AND CONVICTED OF THE PRIOR OFFENSE. AND COUNSEL CITED THIS FOR THE PROPOSITION -- THIS CASE FOR THE PROPOSITION DEFINING PREJUDICE THE WAY THAT I JUST HAVE. AND YOU WOULD THINK FROM THAT THAT EWOLDT SAID, WELL, FOR CRYIN' OUT LOUD, WE CAN'T ALLOW THIS EVIDENCE. I MEAN, IF THERE'S EVER A CASE WHERE THERE'S GOING TO BE PREJUDICE, THE FACT THEY KNOW THIS GUY IS ESSENTIALLY A PERVERT WHO DID EXACTLY THE SAME THING 12 YEARS EARLIER AND WAS NEVER PUNISHED FOR IT MIGHT CAUSE THEM TO VOTE GUILTY HERE. YET, THE COURT NEVERTHELESS FOUND THAT THE PRIOR INSTANCE WAS GOING TO COME IN. WHAT IS SIGNIFICANT HERE IN THIS ANALYSIS, YOUR HONOR, IS THE -- IN A WAY, THE VERY ARGUMENTS OF COUNSEL YESTERDAY UNDERCUT HIS 352 ARGUMENT BECAUSE TO THE EXTENT THAT HE HAS ARGUED THAT THESE INSTANCES CAN BE MINIMIZED, EXPLAINED, THAT THEY'RE AMBIGUOUS, THEY DON'T REALLY PROVE WHAT WE SAY THAT THEY PROVE, ARE WE REALLY TALKING ABOUT A CASE WHERE THE JURY IS GOING TO SAY, "GEE, I REALLY DON'T THINK ORENTHAL SIMPSON COMMITTED THAT MURDER. BUT HE DID SO MANY OTHER BAD THINGS THAT HE WASN'T CONVICTED OF, I'M JUST GOING TO CONVICT HIM OF A DOUBLE HOMICIDE ANYWAY"? BECAUSE THAT'S WHAT WE'RE CONCERNED ABOUT HERE. AND I DON'T THINK THAT A REASONABLE INTERPRETATION OF THE KINDS OF EVIDENCE THAT WE ARE SEEKING TO INTRODUCE IS -- LENDS ITSELF TO THAT KIND OF FEAR OR THAT KIND OF CONCERN. THE NEXT 352 TYPE OF ARGUMENT THAT WAS MADE WAS THE ISSUE OF TIME CONSUMPTION AND JUDICIAL EFFICIENCY. AND I JUST POINT OUT THAT ALL OF THESE RELATIONSHIP VIOLENCE CASES SINCE 1909 ALLOWED THIS KIND OF EVIDENCE. AND OBVIOUSLY THEY IMPLIEDLY DECIDED THAT IT WAS IMPORTANT ENOUGH TO ALLOW IN, NOTWITHSTANDING THE FACT THAT IT TAKES TIME TO PROVE THESE PRIOR INSTANCES.
BUT IN THOSE OTHER CASES, THEY'RE NORMALLY TALKING ABOUT ONE OR TWO OTHER INSTANCES WHERE HERE THERE IS SORT OF A LAUNDRY LIST OF ITEMS. I MEAN, WE ARE TALKING ABOUT 12 OR 15 MISDEMEANOR JURY TRIALS WITHIN THIS TRIAL, AREN'T WE?
WELL, IN SOME YOU CAN'T TELL HOW MANY THERE WERE BECAUSE THEY SIMPLY SAY THERE WAS A HISTORY OF ABUSE OR A HISTORY OF ANTAGONISM. THEY USE LANGUAGE THAT DOESN'T REALLY ALLOW YOU NECESSARILY TO DETERMINE WHAT ALL THE SPECIFIC INSTANCES WERE. OBVIOUSLY WE HAVE A FEW SPECIFIC INSTANCES WHICH ARE HIGHLY PROBATIVE AND WE HAVE MANY OTHER INSTANCES THAT AREN'T. AND THAT IS TRUE THAT WE HAVE MANY INSTANCES. BUT IT ALSO IN A SENSE, YOUR HONOR, HELPS US OUT ON THE 352 CONCERN. BECAUSE THE ARGUMENT AGAINST THE ADMISSION OF THE EVIDENCE, ONE OF THE STRONGEST ARGUMENTS WOULD BE, IF YOU COULD SAY, THIS IS JUST AN ISOLATED INSTANCE, IF THERE WERE ONE SLAP AT ONE POINT IN THE HISTORY OF A RELATIONSHIP, THEN YOU COULD ARGUE UNDER 352, WELL, DOES THIS REALLY SAY SOMETHING ABOUT THE RELATIONSHIP ITSELF? WHAT THE PROSECUTION HAS SAID THAT WE ARE TRYING TO DO IS, WE ARE TRYING TO SAY SOMETHING ABOUT THIS RELATIONSHIP. WE ARE USING THE SPECIFIC INSTANCES TO ALLOW THE JURY TO MAKE CERTAIN INFERENCES AND DEDUCTIONS ABOUT THE KIND OF RELATIONSHIP IT WAS. AND THE VERY FACT THAT IT DID GO OVER AN EXTENSIVE PERIOD OF TIME COMPLETELY ELIMINATES ANY ARGUMENT THAT THIS WAS SOME SORT OF TRANSITORY PROBLEM THAT EXISTED, WAS LIMITED TO A YEAR OR TWO AND WENT AWAY. IT COMPLETELY ELIMINATES ANY ARGUMENT OR ANY INFERENCE OTHER THAN THAT THIS WAS AN INALIENABLE PART OF THE RELATIONSHIP BETWEEN THE DEFENDANT AND THE VICTIM IN THIS CASE. SO IN MANY WAYS, YES, YOUR HONOR, WE DO HAVE MANY INSTANCES. AND THAT MEANS THAT IT WILL TAKE MORE TIME, BUT IT ALSO MEANS THAT THE EVIDENCE IS MUCH MORE PROBATIVE, AND THEREFORE, WE MAKE A MUCH BETTER SHOWING ON THE PROBATIVE SIDE OF THIS TWO-PART 352 SCALE. AND WHAT I WOULD ALSO POINT OUT HERE IS THAT THE TIME CONSUMPTION CASES TYPICALLY ARE DEALING WITH SITUATIONS WHERE THE EVIDENCE IS COLLATERAL, WHERE IT DOESN'T GO TO THE HEART OF THE ISSUE. WHAT WE ARE SAYING IS THAT FUNDAMENTALLY, THIS IS DOMESTIC VIOLENCE MURDER. THE RELATIONSHIP IS ITSELF PART OF THE TRANSACTION IN THIS CASE AND EXPLAINS WHAT HAPPENED. THIS IS THE CASE. THIS ISN'T SOME SIDE ISSUE, NOT LIKE A CREDIBILITY ISSUE WHICH IS A COLLATERAL TYPE OF ISSUE IN CRIMINAL PROCEEDINGS. IT GOES TO THE VERY HEART AND CORE. THE SUPREME COURT IN NICHOLAS SAID, ACTUALLY GOES TO ONE OF THE ELEMENTS OF OUR CHARGE. I GUESS THAT THE DEFENDANT WILL PROBABLY SPEND MONTHS AND MONTHS ON THE DNA EVIDENCE AND THE PHYSICAL EVIDENCE ON THAT CASE, CROSS EXAMINE AD NAUSEAM, AND I THINK IT WOULD BE DIFFICULT TO A CERTAIN EXTENT TO CUT A LOT OF THAT OUT UNDER 352 BECAUSE AGAIN, IT REALLY DOES GO TO A VERY SIGNIFICANT PART OF THE CASE. AND USUALLY WHAT WE ARE TALKING ABOUT, 352, WE ARE TALKING ABOUT STUFF THAT'S COLLATERAL. AND ESSENTIALLY WHAT I HEAR IN THE ARGUMENT WHEN MR. UELMEN IS TALKING ABOUT TIME CONSUMPTION -- THEY'RE GOING TO HAVE TO CALL ALL THESE WITNESSES, REBUTTAL, CROSS-EXAMINE -- IS ALMOST A FORM OF LEGAL BLACKMAIL. THAT IS TO SAY TO THE JUDGE, YOUR HONOR, WE ARE GOING TO PUT ON SO MUCH EVIDENCE AND HAVE SO MUCH CROSS-EXAMINATION OF THESE WITNESSES THAT UNDER THIS TIME-CONSUMPTION CONCERN, WE SHOULD EXCLUDE THE EVIDENCE. AND I JUST DON'T BELIEVE, YOUR HONOR, THAT IT'S PROPER TO MAKE THAT KIND OF ARGUMENT OR THAT YOUR HONOR OR THE PEOPLE SHOULD BE IN A SENSE HELD HOSTAGE BY WHAT THE DEFENSE PROPOSES TO DO.
I'M NOT SUGGESTING THAT IT'S A MATTER OF A BLACKMAIL OR THREATENING. I'M NOT SUGGESTING THAT THAT ARGUMENT OR I'M NOT CONCERNED THAT THAT ARGUMENT WOULD BE CONSTRUED AS BEING BLACKMAIL OR HOLDING THE COURT HOSTAGE OR WHATEVER. BUT I DO HAVE A VERY PRACTICAL PROBLEM. THAT I'VE GOT 24 JURORS PROBABLY PLAYING TIDDLEDYWINKS RIGHT NOW WITH EACH OTHER. I'M VERY CONCERNED THAT WE GET THESE MOTIONS IF I'M CONCERNED THAT WE FINISH THESE MOTIONS THIS WEEK, LET ALONE HAVE TO TRY 12 INCIDENTS AS MISDEMEANOR JURY TRIALS WITHIN THIS TRIAL AND I'VE GOT A SEQUESTERED JURY THAT'S COSTING ME THOUSANDS OF BUCKS A DAY TO HOUSE, I MEAN IT IS A REAL PROBLEM, A REAL PRACTICAL PROBLEM; THE STAMINA AND THE ABILITY OF OUR TRIAL JURORS TO HANG IN THERE WITH US. I MEAN I GET PAID TO BE HERE EVERY DAY. THAT'S NOT A PROBLEM. BUT THEY DON'T.
I UNDERSTAND THAT, YOUR HONOR. AND AS I SAID BY WAY OF ANALOGY, IT'S ALSO GOING TO BE A PROBLEM THAT THE DEFENSE IS PROBABLY GOING TO SPEND AND THE PROSECUTION WITHOUT ANY DOUBT REGARD TO BEING AN INORDINATE AMOUNT OF TIME ON MANY OF THE OTHER ISSUES ON THE CASE SUCH AS HOW IS EVERY OTHER SAMPLE OF EVIDENCE COLLECTED AND WHAT KIND OF DISTILLED WATER WAS USED AND WHAT WERE THE LABELS AND EVERY LITTLE TYPE OF TYPOGRAPHICAL ERROR, SO ON. BUT THE FACT OF THE MATTER IS THAT A DECISION HAS TO BE MADE HOW CENTRAL IS THIS TO THE PROSECUTION'S CASE OR TO THE DEFENDANT'S CASE. AND ALL I'M SAYING IS, WHEN WE'RE TALKING ABOUT TIME-CONSUMPTION ISSUES, THAT WE ARE TYPICALLY TALKING ABOUT CASES AND SCENARIOS WHERE THE EVIDENCE IN QUESTION DOESN'T GO TO THE HEART OF THE MATTER. THERE ARE A LOT OF THINGS THAT ARE GOING TO TAKE TIME IN THIS CASE. BUT THE ISSUE IS HOW IMPORTANT AND HOW CENTRAL ARE THEY.
I'M JUST RAISING TO YOU THE PRACTICAL CONCERN. I UNDERSTAND THE DISTINCTION BETWEEN COLLATERAL AND SUBSTANTIVE.
OKAY. FINALLY, I'D JUST LIKE TO ADDRESS THE REMOTENESS ISSUE. THAT'S MY LAST 352 ISSUE, AND THEN I'LL BE FINISHED. IS THAT THERE ARE A NUMBER OF CASES THAT DEAL WITH REMOTENESS. ONE WAS PEOPLE VERSUS SHAVER, WHERE THE DEFENDANT MURDERED HIS WIFE, AND EVIDENCE WAS INTRODUCED THAT TWO YEARS BEFORE, HE FALSELY ACCUSED HIS WIFE OF SLEEPING WITH ANOTHER MAN. AND IN THE INTERVENING TWO YEARS, THE COURT SAID THAT INSOFAR AS THE RECORD WAS CONCERNED, THERE WERE NO PROBLEMS AT ALL. SO THAT WOULD SEEM TO BE A PROBLEMATIC CASE IN THE SENSE THAT YOU HAVE THAT TWO-YEAR GAP, SOMETHING THAT WE REALLY DON'T HAVE IN OUR CASE. BUT THE COURT HELD THAT REMOTENESS OF THIS EVIDENCE MIGHT LESSEN ITS WEIGHT, BUT DID NOT RENDER INADMISSIBLE. SO IT'S AN ISSUE THAT GOES TO WEIGHT, NOT ADMISSIBILITY. WE HAD PEOPLE VERSUS HELFEND, WHICH I ALREADY DISCUSSED. THAT WAS THE CASE WHERE THE EX-HUSBAND KILLED HIS WIFE'S NEW HUSBAND. AND THE EVIDENCE THERE WAS FOUR YEARS OLD. AND THAT OF COURSE, THE EWOLDT CASE ITSELF WHERE THE EVIDENCE WAS 12 YEARS OLD, AND IT WAS ALLOWED IN NEVERTHELESS. MAY I JUST HAVE A MOMENT, YOUR HONOR, TO REVIEW MY NOTES?
YOU ARE ATTEMPTING TO GO BACK 17 YEARS ALL THE WAY BACK TO AN INCIDENT BACK IN 1977. DON'T I ALSO HAVE TO WEIGH IN THIS REMOTENESS PROCESS THE PROBATIVE VALUE OF THAT INCIDENT VERSUS HOW REMOTE IT IS VERSUS HOW MUCH TIME IT'S GOING TO TAKE? I MEAN, AREN'T THEY ALL CONSIDERATIONS THAT I HAVE TO CONSIDER?
YOUR HONOR, THE COURT HAS TO CONSIDER THE TOTALITY OF THE FACTS. I THINK IT'S HARD TO SAY WHICH FACTS ARE TOTALLY IRRELEVANT. WHAT WAS SIGNIFICANT THOUGH IN THE EWOLDT CASE THAT I THINK ADDRESSES THE COURT'S CONCERN, WE HAD A VERY OLD CRIME --
THAT'S THE IDENTICAL CRIME. SO THE PROBATIVE VALUE IS SIGNIFICANTLY HIGHER THAN WHEN YOU HAVE SOME KIND OF CONDUCT THAT'S RELATED, BUT NOT THE SAME CONDUCT.
OKAY. BUT ONE OF THE THINGS THAT THEY STRESS THERE AND I THINK IT IS JUST A POINT THAT THE COURT -- I WOULD ASK THE COURT TO CONSIDER IN YOUR HONOR'S ANALYSIS. AND I'M NOT SAYING THE COURT DOESN'T HAVE TO GO THROUGH ITS ANALYSIS. YOU DO. THE THING THAT THEY MENTION IN EWOLDT WHERE THEY WERE TALKING ABOUT REMOTENESS, THEY SAID, "LOOK, WE KNOW THIS IS 12 YEARS OLD. BUT WHAT WE FIND TO BE SIGNIFICANT IS THAT SHORTLY AFTER THE DEFENDANT STOPPED MOLESTING THE OLDER CHILD, HE STARTED MOLESTING THE YOUNGER CHILD." SO THERE WASN'T A GAP. SO THAT LEADS ME TO CONCLUDE FROM THAT CASE AND FROM OTHERS THAT WHAT THE COURTS ARE PRIMARILY CONCERNED ABOUT ARE GAPS. NOT NECESSARILY HOW OLD THE EVIDENCE IS, BUT ARE THERE ANY REAL GAPS OF A LENGTHY PERIOD OF TIME THAT SHOWS PERHAPS THE DEFENDANT'S CHARACTER HAS CHANGED IN BETWEEN THE TIME THE EARLIER EVENTS OCCURRED AND THE LATER EVENTS OCCURRED. AND AS I SAID, YOUR HONOR, I UNDERSTAND THE COURT'S ARGUMENT THAT YEAH, IT'S OLDER; THEREFORE, LESS PROBATIVE. BUT THERE'S A COUNTERVAILING ARGUMENT; AND THAT COUNTERVAILING ARGUMENT IS THE FACT THAT WE CAN SHOW THAT THIS WAS A PART OF THE RELATIONSHIP WHICH EXISTED AT THE GENESIS OF THE RELATIONSHIP. IT WAS A PART OF THE RELATIONSHIP WHICH EXISTED WHEN THE DEFENDANT PHYSICALLY TERMINATED THE RELATIONSHIP BY KILLING THE VICTIM, AND EVERYWHERE IN-BETWEEN MAKES THE EVIDENCE INFINITELY MORE PROBATIVE THAN IT WOULD OTHERWISE BE BECAUSE IT REALLY DOES KNOW THAT THIS IS A FUNDAMENTAL, AS I SAY, INALIENABLE ASPECT OF THE RELATIONSHIP BETWEEN THE DEFENDANT AND NICOLE BROWN SIMPSON. I JUST RECEIVED A NOTE ON THE ZACK ANALYSIS, WHICH INDICATES THAT THE ANSWER, ONE OF THE ANSWERS TO YOUR HONOR'S QUESTION IS THAT ZACK WAS A RETRIAL, AT WHICH THE COURT GRANTED THE PEOPLE'S MOTION TO HAVE THE EVIDENCE INTRODUCED IN ITS CASE IN CHIEF. SO THAT WOULD -- IF TRUE -- AND I HATE EVER SAYING SOMETHING WITHOUT RELOOKING AGAIN -- WOULD DISPOSE OF THAT CONCERN. BUT I DON'T THINK THAT'S A MAJOR CONCERN THERE.
YOU MEAN YOU HAVEN'T TALKED TO JUSTICE YEAGEN ABOUT THAT? MEAN, OUT OF CURIOSITY, HOW DID WE COME BY THAT INFORMATION?
WELL, I GUESS THIS WAS ANOTHER ONE OF THE WONDERS OF TECHNOLOGY. SOME LAW PROFESSOR APPARENTLY CAUSED THIS TO BE SENT TO THE PROSECUTION IN TIME FOR THE CLOSING OF MY ARGUMENT TODAY. THE --
YES, IT IS. THE BOTTOM LINE IS, YOUR HONOR, VERY SIMPLY, THIS KIND OF EVIDENCE COMES IN. WE HAVE A VERY LENGTHY HISTORY OF IT COMING IN IN CALIFORNIA. WHETHER YOU WANT TO SAY IT'S A DISTINCT MOTIVE ANALYSIS DEALING WITH RELATIONSHIP VIOLENCE CASES, WHETHER YOU WANT TO CHARACTERIZE IT AS 1101(B) ANALYSIS, IT COMES IN. AND AS STATED BY THE COURT IN PEOPLE VERSUS ZACK, A TRIAL IS A SEARCH FOR THE TRUTH. AND I THINK WHAT WE HAVE DEMONSTRATED TODAY, THAT TO DENY THE JURY THE OPPORTUNITY TO HEAR THIS EVIDENCE IS NOT SIMPLY TO HIDE THE TRUTH FROM THE JURY, BUT IT IS TO AFFIRMATIVELY CAUSE THEM TO MAKE CERTAIN ASSUMPTIONS ABOUT THIS CASE THAT ARE THE OPPOSITE OF THE TRUTH. IT IS -- AS WE'VE STATED BEFORE, TRULY IT'S A PERPETRATED FRAUD ON THE JURY. YOUR HONOR, WE BELIEVE THAT LEGALLY, WE BELIEVE THAT LOGICALLY AND, AS MR. GORDON IS ABOUT TO SAY, EVEN EMPIRICALLY, THE EVIDENCE IN THIS CASE IS RELEVANT AND IT IS ADMISSIBLE. THANK YOU.
WELL, CLOSE. IT JUST FEELS THAT WAY. AND I'LL TRY TO RUN A 352 ANALYSIS ON MYSELF TO KEEP THIS BRIEF.
I WANT TO ADDRESS A COUPLE ISSUES TO THE COURT. THE FIRST ONE RELATES TO WHAT THE SOCIAL SCIENCE ARGUMENTS THAT HAVE BEEN ARGUED IN THIS MOTION AND BY THE DEFENSE IN THEIR BRIEF AND HOW THEY ARE RELEVANT TO SEVERAL NOTIONS THAT HAVE BEEN ARGUED BACK AND FORTH AND ARE VERY KEY TO THE COURT MAKING ITS DECISION HERE. SO PRESENT SOME INFORMATION TO THE COURT WITH REGARD TO A LOT OF THE ISSUES WE'VE BEEN TALKING ABOUT IN THE EMPIRICAL REALM TO MAKE SOME DECISIONS HERE. SO ISOLATED SOLELY TO THIS MOTION, HOPEFULLY GIVE THE ORDER SOME EVIDENCE WITH REGARD TO THAT. THEN SECONDLY, GOING TO ANALYSIS WITH REGARD TO THE USES OF EXPERT TESTIMONY IN A TRIAL IN THIS MATTER AND ADDRESS SOME OF THE COURT'S CONCERNS WITH REGARD TO 1107. AND WITH REGARD TO THE USE OF EXPERT TESTIMONY, AGAIN, I THINK THIS IS A POINT SIMILAR TO RAISING THE MULTIPLE ISSUES YESTERDAY. WE CERTAINLY RECOGNIZE THAT THE INTRODUCTION OF EXPERT TESTIMONY WITHIN THIS TYPE OF TRIAL OR A SEXUAL ASSAULT TRIAL OR CHILD ABUSE TRIAL CAN BE TRIGGERED BY SEVERAL DIFFERENT THINGS WITHIN A TRIAL. AND I THINK THERE ARE FOUR DIFFERENT CIRCUMSTANCES WE HAVE TO CONSIDER IN THE TRIAL. ONE IS WHAT I CALL KIND OF THE PHILLIPS, CEGERS, MCALPIN ANALYSIS THAT TALK ABOUT WHAT IS USED IN CASE IN CHIEF. SECOND IS THE TRADITIONAL BLEDSOE, BALKER ARIS ANALYSIS WHICH IS MORE OF A REBUTTAL TYPE OF USE OF AN EXPERT WHICH CAN OCCUR IN THE CASE IN CHIEF OR IN REBUTTAL, DEPENDING WHAT OCCURS BY THE DEFENSE, DEPENDING UPON THE CROSS-EXAMINATION, ARGUMENTS, WHAT INFERENCES ARE RAISED WHEN THAT TRIAL OCCURRED. AND ONE OF THE REASONS WHY I THINK WE BROUGHT THIS UP IN THIS BRIEF NOW IS -- AND TO ARGUE AND PUT THIS BEFORE THE COURT NOW, THAT MANY OF THE ARGUMENTS THAT WERE MADE, ESPECIALLY THE SOCIAL SCIENCE ARGUMENTS, BUT MANY OF THE ARGUMENTS MADE IN THE DEFENDANT'S BRIEF AND CERTAINLY THE ARGUMENTS THAT HAVE BEEN MADE YESTERDAY BY DEAN UELMEN ARE EXACTLY, EXACTLY THE KIND OF MISCONCEPTIONS ABOUT WHAT OCCURS TO A BATTERED WOMAN, WHICH REFERS TO ADDRESSED BY LENORE WALKER IN 1979 IN THIS BOOK, THE BATTERED WOMAN, WHICH HAVE BEEN INCORPORATED IN NUMEROUS CASES BY THE COURT AND BY THE LEGISLATURE. SO IF THOSE ARE QUOTED HERE WITH EXPECTATION THAT THOSE WILL BE EXACTLY THE SAME KIND OF ARGUMENTS IN CROSS-EXAMINATION THAT WOULD OCCUR IN THIS CASE, IT WOULD TRIGGER -- SO MUCH OF THAT IS GEARED TOWARD THAT. AND WE CERTAINLY UNDERSTAND THAT THERE MAY BE A TRIGGERING MECHANISM THAT MUST OCCUR. NEXT IS 1107 AND THE EFFECT OF 1107 ON THIS AREA IN GENERAL. AND THEN LASTLY IS A STOLL SITUATION WHICH, AS IN PEOPLE VERSUS STOLL, AGAIN REQUIRING THE TRIGGERING MIGHT OCCUR DEPENDING ON THE DEFENSE WOULD BRING FORTH EXPERT TESTIMONY IN THEIR CASE. I'M NOT GOING TO ADDRESS THAT ONE. I JUST WANTED TO BRING IT TO THE COURT'S ATTENTION BECAUSE IT'S A SEPARATE SITUATION THAT MAY OCCUR, AND WE CAN TAKE IT UP AT THAT TIME. BUT I DO THINK WE NEED TO LIKE -- WE NEED TO ANALYZE THESE IN THESE DISCREET SECTIONS. AND IT'S VERY, VERY IMPORTANT TO CONSIDER WHAT'S OCCURRING HERE IN THIS MOTION AND SOME OF THE ARGUMENTS THAT ARE BEING MADE AND WHAT THEY ARE BEING SAID BOTH IN A LEGAL WAY, WHEN THE COURT MAKES ITS DETERMINATION, THE FACTS THAT THE COURT IS GOING TO BE BASING IT ON, BUT ALSO SOME VERY SIGNIFICANT POLICY ARGUMENTS. AS DEAN UELMEN WAS CARRYING HIS FILE AROUND WE'VE BEEN HEARING A LOT ABOUT, I MYSELF WASN'T QUITE FAR ALONG. I WAS AT THE LOWER END OF THE -- LOWER IS NOT THE WORD -- THE END OF THE CRIMINAL JUSTICE SYSTEM ON THE STREET PUSHING A PATROL CAR AROUND. AND I LEARNED A LOT ABOUT DOMESTIC VIOLENCE OUT THERE. AND A COUPLE THINGS I LEARNED AS A POLICE OFFICER, PATROLMAN OUT THERE WAS, ONE, TO BE REAL CAREFUL AT THOSE CALLS BECAUSE THEY'RE VERY DANGEROUS AND VERY VIOLENT, EXPLOSIVE SITUATIONS. NUMBER TWO, WHAT I LEARNED IS IF IN MY BEAT THERE WAS A HOUSE OR DOMESTIC VIOLENCES GOING ON, UNLESS I INTERVENED, I WAS GOING TO BE SPENDING A LOT OF TIMES THERE BECAUSE I WAS GOING TO GET CALLS OVER AND OVER AND OVER AGAIN. AND THE OTHER THING I LEARNED WAS THAT SOME OF THE WORST ASSAULTS THAT I SAW, SOME OF THE WORST HOMICIDES I SAW AS A PATROLMAN WERE OUT OF DOMESTIC VIOLENCE CALLS. I LEARNED THAT AS A COP OUT ON THE STREET AND SQUATTED ALL MY TIME ON PATROL. AND WHAT KIND OF AMAZED ME WHEN I CAME INTO COURT, WHERE WE TAKE A MUCH MORE SCHOLARLY APPROACH HOPEFULLY TO THINGS THAN SAY PATROLMEN DO OUT IN THE MIDDLE OF THE NIGHT TALKING ABOUT THINGS, AT LEAST THAT'S WHAT WE'RE SUPPOSED TO -- BUT WHAT I SAW IS THAT OF THE REALITIES THAT I LEARNED OUT THERE WERE NOT ONLY IGNORED, BUT IN FACT WERE TRIVIALIZED AND MINIMIZED IN COURT AND OCCURRED ALL THE TIME. THAT'S JUST THE KIND OF THING WE'RE HEARING YESTERDAY. WHAT HAPPENS OVER AND OVER AND OVER AGAIN TO WOMEN IN THIS SOCIETY IS, WE SAY, LOOK, WE UNDERSTAND THAT BATTERING IS A PROBLEM, AND YOU NEED TO BRING THAT PROBLEM WITHIN THIS SYSTEM. AND WHEN YOU GET IN THE SYSTEM, WE ARE -- THIS IS THE PLACE TO TAKE CARE OF IT. THE JUSTICE SYSTEM IS GOING TO RESPOND TO IT. AND THEN LOOK AT WHAT'S HAPPENING HERE JUST IN THIS MOTION TODAY. IN THE WORST POSSIBLE SITUATION FOR BATTERED WOMAN, AND WHEN THE CRIMINAL JUSTICE DIDN'T RESPOND ADEQUATELY, IT RESULTED IN HER DEATH. WE ARE HERE AND THIS ARGUMENT IS REVOLVING AROUND WHETHER THOSE EXPERIENCES WHICH GO TO THE VERY HEART AND DRIVE EVERY SINGLE THING THAT OCCURRED IN THIS CASE EVEN COME HERE, EVEN COME IN BEFORE THIS JURY WHO WILL BE JUDGING THE BATTERER WHO TOOK THIS WOMAN'S LIFE, WHETHER THEY COME IN OR NOT. AND I THINK THOSE ARE POLICY CONSIDERATIONS THAT NEED TO BE KIND OF IMPRINTED OVER THIS. NOW, WITH REGARD TO THE SOCIAL SCIENCE ARGUMENT THAT IS PRESENTED BY THE DEFENSE -- AND THERE IS AN ARGUMENT THAT WAS PRESENTED THAT THIS BASICALLY IS NUMERIC ANALYSIS, THAT THE COURT CANNOT -- SHOULD NOT CONSIDER SIMILARITIES. THIS IS WITHOUT GETTING TO THE POWER AND CONTROL WHEEL AT ALL. IT'S JUST ON A VERY NUMERIC SIMILARITY. THAT -- THERE'S TWO -- I THINK THE NUMBERS WERE, THERE WERE 2.5 MILLION WOMEN BATTERED IN THE UNITED STATES LAST YEAR AND THERE WERE ONLY -- AND I ABSOLUTELY HATED READING THAT WORD AND I DON'T LIKE SAYING IT, BUT THERE WAS ONLY 2,000 WOMEN THAT WERE KILLED; THEREFORE, THERE'S NO CONNECTION. THERE'S A COUPLE PROBLEMS FROM THAT ANALYSIS. NUMBER ONE IS, JUST LOGICALLY, TO USE THE SAME ANALYSIS, ONE COULD ARGUE THAT WELL, THERE'S HUNDREDS OF MILLIONS OCCURRENCES OF SEX WITHIN THIS COUNTRY EVERY YEAR; YET ONLY A FRACTION OF THE PEOPLE ENGAGING IN SEX GET PREGNANT. NO LINKS THERE. THAT'S THE SAME KIND OF ANALYSIS THAT'S BEING MADE. WHAT THE DEFENSE HAS DONE -- WHAT PRODDER (PHONETIC) SHOWS US IN HIS ANALYSIS, WHAT HE HAS DONE, HE'S TAKEN SOMETHING CALLED THE CONFLICT TACTIC SCALE. AND THAT IS A SCALE THAT IS USED TO EVALUATE ABUSIVENESS BY A BATTERER TOWARDS HIS OR HER SPOUSE. THERE ARE MULTIPLE, MULTIPLE FACTS ALONG THAT SCALE THAT MEASURE THE LEVEL OF BATTERING. HE USED ONE, ONE OF THE FACTORS OUT OF THAT AND THEN SAID, "THAT'S THE POPULATION THAT WE'RE GOING TO COMPARE. WE ARE GOING TO TAKE ONE PERSON WHICH HAS ANY KIND OF PHYSICAL CONTACT AT ALL, THAT ONE ELEMENT, AND THAT IS THE BASE POPULATION OF BATTERERS WE ARE GOING TO LOOK AT COMPARED TO HOMICIDES." THAT'S NOT THE WAY YOU DO THAT. IF YOU JUST USE THAT ONE SCALE, THE CONFLICT TACTIC SCALE, AND YOU SEE MULTIPLE, MULTIPLE FACTORS, PRESENTING EVIDENCE HOPEFULLY LATER TO DESTROY A MORE DETAIL OF THAT, YOU REDUCE THAT POPULATION GEOMETRY TO GET DOWN TO THE POPULATION THAT SHOULD BE COMPARED. BUT THAT'S NOT -- YOU GET TO SOMETHING CALLED THE TOTAL LOP SCALE, AND THE SCALE IS A SCALE THAT THERE'S EMOTIONAL ABUSE THAT IS ADDED ON TOP OF THAT. AND WHEN YOU HAVE INSTANCES OF EMOTIONAL ABUSE ON TOP OF THE PHYSICAL ACTS THAT HAVE OCCURRED WITHIN THE CONFLICT TACTIC SCALE, YOU HAVE EVEN A SMALLER POPULATION, ONCE AGAIN DECREASING THAT POPULATION THAT'S COMPARED TO HOMICIDES AND INCREASING THE FREQUENCY OR NUMBERS, IF THEY WANT TO USE NUMBER GEOMETRY. YOU THEN GO TO A DOCUMENT CALLED INTRUSIVENESS SCALE. AND THE INTRUSIVENESS SCALE MEASURES STALKING. STALKING IS AN PHENOMENALLY, PHENOMENALLY IMPORTANT BEHAVIOR WHEN LOOKING AT INSTANCES OF BATTERING AND BATTERING RELATIONSHIPS. THE RESEARCH HAS SHOWN THAT WHEN YOU HAVE STALKING BEHAVIOR, THE RISK RATIO GOES UP PHENOMENALLY, AND ON TOP OF THAT, THAT POPULATION OF BATTERERS WE HAVE GOES DOWN GEOMETRICALLY. LASTLY, GOING TO --
SORRY. WELL, MY OFFICE IS CLOSE TO LISA KAHN. SO MAYBE IT'S KIND OF RUBBING OFF. SORRY. THEN GO TO -- WELL, YOU THEN GO TO THE DIETZ THREATS SCALE. AND THE DIETZ THREATS SCALE IS SOMETHING THAT LOOKS AT ACTUAL RISK AND LOOKS AT RISK FACTORS. AND IN THE DIETZ SCALE, THERE ARE SEVERAL PREDICTORS OF VIOLENCE. AND WHAT IT SAYS IS, IF A DEFENDANT OR A POTENTIAL BATTERER HAS ANY ONE, ANY ONE OF THE FACTORS IN THAT DIETZ SCALE, THEY ARE 50 PERCENT MORE LIKELY TO COMMIT -- I THINK HE USES THE TERM AN "ATROCIOUS CRIME" SUCH AS A HOMICIDE. IN THIS CASE, THERE ARE FOUR ON THAT PRIMARY. SO IF WE WERE GOING TO USE THE PROPER NUMERIC ANALYSIS, WHAT WE WOULD FIND IS THAT THE POPULATION THAT WE GOT DOWN TO WHEN WE LOOKED AT THE FACTS THAT WE HAVE HERE COMPARED TO THE NUMBER OF HOMICIDES IS A MUCH SMALLER PORTION OF BATTERERS. AND NOT ONLY IS THE NUMBERS GAME MUCH, MUCH CLOSER AND SHOW A DIRECT RELATIONSHIP, BUT THAT IN FACT, WHEN LOOKING AT THE -- WHAT WE HAD OCCUR IN THIS CASE, THAT NICOLE BROWN SIMPSON WAS AT VERY, VERY HIGH RISK AT ALL TIMES. AND AGAIN, I DON'T PROPOSE TO USE THAT ANALYSIS AND THAT'S NOT TESTIMONY I EXPECT TO BE PRESENTED IN TRIAL AND THAT IS NOT WHAT I'M SUGGESTING THE EXPERT WOULD TESTIFY TO AT TRIAL IN THE FORM OF ANALYSIS. I JUST WANT TO RESPOND TO THE SOCIAL SCIENCE ARGUMENT HERE, AND I THINK THERE'S INFORMATION THAT THE COURT NEEDS TO HAVE TO EVALUATE MANY OF THE ARGUMENTS THAT HAVE BEEN PRESENTED IN ANALYZING THIS TESTIMONY. ONE OF THE CONCERNS I HAVE IN INTERCHANGE BETWEEN MR. GOLDBERG AND THE COURT WITH REGARD TO OUR ANALYSIS OF THESE INCIDENTS IS THAT WHAT WE PROPOSE TO TALK ABOUT WITHIN THAT POWER AND CONTROL WHEEL, THAT ANALYSIS OF POWER AND CONTROL WE THINK IS AN ARGUMENT THAT CERTAINLY CAN BE MADE WITH LOGIC AND COMMON SENSE. THAT WHEN ONE VIEWS THESE VARIOUS ACTS WITHIN A RUBRIC OF POWER AND CONTROL, THAT ONE BY COMMON SENSE CAN SEE THAT THEY ARE ALL CONTROL MECHANISMS, THAT THAT'S THE LOGICAL INFERENCE. ONE CAN SEE HOW THESE DIFFERENT TYPES OF BEHAVIORS WHEN LINED UP WITHIN A POWER AND CONTROL ANALYSIS CERTAINLY HAVE THAT -- THEY ARE MECHANISMS OF POWER AND CONTROL. AND WHEN VIEWING WHAT THE DEFENDANT DID IN THIS CASE, THAT THIS POWER AND CONTROL IN FACT ESCALATED. AND WITHOUT GETTING TO ANY EXPERT ANALYSIS AT ALL, JUST BY MAPPING WHAT OCCURRED HERE, BY LAYING IT OUT AND MAPPING IT AND LOOKING AT THE KEY EVENTS, THAT WE WOULD ARGUE TO THE JURY, BECAUSE THIS IS THE TRUTH OF WHAT HAPPENED, THAT THIS POWER AND CONTROL ESCALATED UNTIL THIS TERMINAL ACT OF CONTROL. NOW, I THINK CERTAINLY HAVING EXPERT TESTIMONY TO EXPLAIN THAT IN MUCH MORE ARTICULATE TERMS THAN I CAN AND WITH A BETTER -- CERTAINLY A BETTER FOUNDATION CERTAINLY, CERTAINLY HELPS, IS GOING TO HELP THE TRIER OF FACT. AND I THINK THERE ARE WAYS THAT THERE ARE CERTAIN THEORIES THAT THAT CAN COME IN. AND I DON'T KNOW IF THE WANTS ME TO BREAK NOW OR KEEP GOING.
OKAY. I'LL KEEP GOING. THE FIRST IS, UNDER THE TRADITIONAL BLEDSOE, BOWKER AND ARIS CASE. AND WHAT THOSE THREE CASES, BLEDSOE DEALING WITH RAPE TRAUMA SYNDROME, BOWKER DEALING WITH CHILD ABUSE ACCOMMODATION SYNDROME, ARIS DEALING WITH BATTERED WOMAN'S SYNDROME, TALK ABOUT THE ABILITY OF THE PROSECUTION -- ARIS WAS ACTUALLY THE DEFENSE INTRODUCING THE CASE -- BUT THE ABILITY TO INTRODUCE EVIDENCE TO DISABUSE THE TRIER OF FACT OF MISCONCEPTIONS THAT ARE HELD ABOUT THE ISSUE AT BAR. ONE OF THE CONCERNS I HAVE THAT THE COURT RAISED WAS DISCUSSING 1107. I WILL GET TO 1107 IN A MINUTE. BUT THAT A NOTION THAT 1107 -- THIS WAS AN ARGUMENT ADVANCED BY THE DEFENSE -- THE PRESCRIPTION IN 1107(A) SOMEHOW TOOK OVER ALL EXPERT TESTIMONY ANALYSIS WITH REGARD TO ANY ISSUE WITH REGARD TO BATTERED WOMAN SYNDROME. I WANT TO RESPOND TO THAT IN A COUPLE WAYS. FIRST IS LEGISLATIVE INTENT. AND THE COURT HAS TO LOOK AT WHAT HAPPENED WITH THIS SECTION AS IT WAS WRITTEN. THIS SECTION WAS WRITTEN BY THE SAME -- BY A LEGISLATURE WHICH HAS FINALLY BEGAN TO RESPOND TO THE NEEDS AND ISSUES OF BATTERED WOMEN. THIS IS LEGISLATURE THAT WITHIN THE FAMILY CODE HAS THE FAMILY DOMESTIC VIOLENCE PREVENTION ACT. PASSED 273.6 PENAL CODE REGARDING DOMESTIC VIOLENCE RESTRAINING ORDER, HELPED EXPAND, BROADEN 273.5, DOMESTIC ASSAULT LEGISLATION. AND IN THE SAME YEAR, THEY BROADENED 1107, PASSED MODIFICATIONS TO 12022 REGARDING SEIZING WEAPONS AND DOMESTIC VIOLENCE CODE AND JUST LAST YEAR PASSED BATTERED WOMAN'S ACT WHICH PROVIDED ALMOST 30 MILLION DOLLARS -- I THINK IT WAS 28 MILLION DOLLARS SPECIFICALLY FOR PROVIDING FOR THE PROSECUTION AND PROTECTION OF BATTERED WOMEN. THAT'S A PUBLIC POLICY VOICED BY THIS LEGISLATURE. THESE ARE SOME OF THE SECTIONS PASSED BY THIS LEGISLATURE. AND WHAT HAPPENED IN 1107 IS, 1107 AROSE AT A TIME WHEN COURTS WERE NOT ALLOWING EVIDENCE IN IN CASES WHERE A WOMAN HAD KILLED HER BATTERER AND COURTS WERE NOT ALLOWING IN CERTAIN EVIDENCE. SUFAT (PHONETIC) WAS ONE, CASE THAT OCCURRED -- CULVER CITY CASE ACTUALLY. 1107 CAME AS A RESPONSE. AND WHEN 1107 FIRST CAME IN IN THE LANGUAGE WE SEE IT, OPPOSITION AROSE FROM BATTERED WOMEN'S GROUPS THROUGHOUT CALIFORNIA BY PROSECUTORS, BY WOMEN'S GROUPS THROUGHOUT CALIFORNIA SAYING, "HOLD ON. WE UNDERSTAND WHAT YOU ARE DOING IN THE INTEREST OF BATTERED WOMEN," WHICH THAT IS BY FAR, THE PURPOSE OF THAT SECTION IS TO ASSIST BATTERED WOMEN. "WE UNDERSTAND WHAT YOU ARE DOING, BUT YOU'RE GOING TO HURT US BECAUSE IF YOU PASS THE SECTION, PEOPLE ARE GOING TO COME UP AND MAKE ARGUMENTS JUST LIKE THE ONES THE DEFENSE ARE MAKING HERE. AND WE DON'T WANT TO SEE A SECTION WHICH PRESCRIBES US THAT WAY AND LIMITS US. DON'T LIMIT US. IF ANYTHING, EXPAND IT." AND THE AUTHOR ASSEMBLYMAN EAVES RESPONDED TO THAT AND AMENDMENTS WERE DRAWN UP AND MADE TO 1107 TO SPECIFICALLY INDICATE WHAT THE PRESCRIPTION WAS IN 1107. AND SPECIFICALLY IN THE ANALYSIS OF THAT BILL, AB785 THAT WAS DONE IN THE SENATE JUDICIARY COMMITTEE -- AND I THINK I GAVE THE COURT SPECIFIC QUOTES OF THAT IN MY RESPONSE BRIEF -- IN THAT AREA WHICH DEALT WITH PRESCRIPTION, THE COURT -- THE LEGISLATURE SPECIFICALLY, SPECIFICALLY DEALT WITH BLEDSOE AND BOWKER AND SAID, "THE SAME PRESCRIPTION THAT WE HAVE HERE IN BLEDSOE AND BOWKER IS THE SAME PRESCRIPTION THAT WE WANT TO HAVE IN 1107." WE DON'T INTEND TO BLOCK ANY OTHER CASE LAW, ANY OTHER THEORIES OF ADMISSIBILITY. WE DON'T INTEND TO BLOCK ANY OTHER CASE LAW. WE WANT TO MIRROR THIS. AND IN FACT, IN 1992, AFTER THIS ACTION WAS PASSED WITH THAT INTENT AND LANGUAGE, IT WAS BROADENED EVEN FURTHER TO ALLOW NOT ONLY BATTERED WOMEN'S SYNDROME EVIDENCE, BUT ALSO SPECIFICALLY THE IMPRESSIONS, NATURE, SENSIBILITIES OF THE VICTIM OF BATTERED WOMEN'S SYNDROME. SO THERE IS -- BY NO MEANS, THIS WAS NOT EXCLUSIONARY STATUTE. BY NO MEANS WAS THIS STATUTE MEANT TO BLOCK OTHER EXISTING CASE LAW OR OTHER THEORIES. AND WHAT IS INTERESTING -- IS ACTUALLY VERY INTERESTING AND A PARADOX WITHIN BLEDSOE -- AND BLEDSOE AND BOWKER -- WHEN YOU READ ARIS, WHICH TALKS ABOUT BLEDSOE AND BOWKER AND HOW THOSE CASES RELATE TO THIS SYNDROME, WHAT IT SAYS IS, YOU KNOW, THE ONLY REASON THAT THE RAPE TRAUMA SYNDROME AND CHILD ABUSE ACCOMMODATION SYNDROME ARE NOT ALLOWED FOR THE PURPOSES THAT WE ARE PRESCRIBING -- AND THAT PURPOSE IS A VERY DISCREET ONE. THAT PURPOSE IS THAT FOR ME TO CALL AN EXPERT IN A CHILD ABUSE CASE AND SAY, "DR. SO AND SO, HAVE YOU EXAMINED THE VICTIM IN THIS CASE; AND AFTER HAVING DONE SO, DO YOU HAVE AN OPINION AS TO WHETHER SHE WAS ABUSED OR NOT?" THAT I CAN NOT DO. ABSOLUTELY. AND DON'T IN THOSE CASES AND WOULDN'T IN THIS CASE. WHAT I CAN DO, WHAT I ABSOLUTELY CAN DO IS TO BRING IN CIRCUMSTANCES SURROUNDING WHAT OCCURS AND WHAT HAS OCCURRED IN THIS CHILD'S LIFE, KIND OF EVIDENCE LIKE ACTING OUT IN SCHOOL, HER SCHOOL RECORDS, HOW -- CHANGES IN HER RELATIONSHIP, CHANGES IN HER BEHAVIOR, EXTERNAL EVIDENCE BY WHATEVER PURPOSE I CAN BRING IT IN, AND THEN HAVE AN EXPERT TALK ABOUT VICTIMS OF THAT AGE AND CLASS WITHOUT REFERRING TO THE VICTIM HERE AT ALL. IN OTHER WORDS, SAY TO THAT EXPERT, "HAVE YOU DONE RESEARCH WITH REGARDS TO EFFECTS OF THE SEXUAL ABUSE ON EIGHT YEAR OLDS?" "YES, I HAVE." "WHAT KIND OF BEHAVIORS OCCUR? WHAT HAPPENS?" HAVE THEM SAY WHATEVER THEY SAY. AND THEN IN CLOSING, IF I CAN MATCH IT UP, GREAT. I CAN MATCH IT UP. SAME WITH RAPE TRAUMA SYNDROME. AND THAT IS ESSENTIALLY KEY IN BOTH OF THOSE WHEN ANY MISCONCEPTIONS HAVE BEEN BROUGHT UP EITHER THROUGH CROSS-EXAMINATION, OPENING ARGUMENT, PRESENTATION OF EVIDENCE WITH REGARD TO ANY OF THOSE SYNDROMES. AND THE ONE THAT THE COURT HAS COMMONLY HEARD -- AND I KNOW THIS HAS OCCURRED IN FRONT OF THIS COURT BEFORE WITH RAPE CASES -- "WHY DID YOU WAIT TO REPORT THIS TO THE POLICE? YOU HAD BEEN OUT WITH HIM BEFORE. SO THEREFORE, YOU CAN'T BE RAPED." THE CHILD, "WHY DIDN'T YOU EVER SAY ANYTHING TO ANYBODY?" WELL, LOOK, THIS KID WAS HAVING TROUBLE IN SCHOOL. SO SHE MUST BE A BAD KID IN LYING. ALL THOSE KIND OF INFERENCES THERE THAT ARE RAISED. WHAT IS INTERESTING IN BATTERED WOMEN'S SYNDROME, WHAT IS FASCINATING, IT'S KIND OF PROPHETIC HERE COMPARED TO THOSE CASES, IS THAT THE MISCONCEPTIONS THAT WE HEAR IN BATTERED WOMEN'S SYNDROME CASES, THE MISCONCEPTIONS THAT ARE CONTAINED WITHIN THE MOVING PAPERS BY DEFENSE THAT WERE ARGUED IN FRONT OF THIS COURT YESTERDAY, WERE LAID OUT AND ARGUED IN VERY SPECIFIC NUMBER AS THOSE MYTHS AROUND BATTERED WOMEN'S SYNDROME IN 1979.
GOOD AFTERNOON, COUNSEL. BACK ON THE RECORD IN THE SIMPSON MATTER. THE DEFENDANT IS AGAIN PRESENT WITH HIS COUNSEL. THE PEOPLE ARE REPRESENTED.
YES, SIR. I AM GOING TO MOVE THEM RIGHT ALONG. I WANT TO TALK ABOUT ONE CASE, AND YESTERDAY WE HAD TALKED ABOUT PRESENTING SOME TESTIMONY. I HAVE TALKED TO MR. BAILEY ABOUT IT. WITH THE COURT'S LEAVE WE WILL BE PRESENTING SOME SHORT TESTIMONY BY DR. DUTTON THAT WOULD ASSIST THE COURT. THE DEFENSE HAS WITHDRAWN THE OBJECTION.
ONE CASE I JUST WANT TO TALK ABOUT WITH THE COURT BEFORE WE TALK TO DR. DUTTON IS A CASE THAT WE HAVE CITED IN OUR BRIEF CALLED PEOPLE VERSUS PHILLIPS AT 122 CAL.APP.3D 69. I JUST MENTION PHILLIPS FOR A COUPLE OF REASONS. ONE, I THINK IT IS THE USE THAT THE COURT USED EXPERT TESTIMONY FOR IN PHILLIPS WHICH WAS APPROVED OF IN SEVERAL SUPREME COURT CASES, INCLUDING STOLL. I THINK IS VERY ANALOGOUS TO A SITUATION WE MAY HAVE OCCUR IN THIS CASE. PHILLIPS WAS A CASE OF HOMICIDE IN WHICH THE DEFENDANT KILLED HER CHILDREN THROUGH A SYNDROME KNOWN AS MUNCHAUSEN BY PROXY SYNDROME AND IN THAT SYNDROME -- I'M SURE THE COURT IS AWARE OF IT -- THIS WAS A WOMAN THAT DESCRIBED TO THE WORLD, BY ALL PUBLIC ACCOUNTS, WAS THIS WELL-TO-DO MOTHER, EVERYTHING WAS FINE, SHE HAD THIS GRAND LIFE, TWO KIDS, THE STATION WAGON IN THE DRIVEWAY, EVERYTHING LOOKED WONDERFUL, AND YET THIS HORRID ACT OF HER KILLING HER KID -- HER KIDS THROUGH THIS SYNDROME OCCURRED. THE PROSECUTION ASKED THE COURT TO USE EXPERT TESTIMONY, NOT TO DIAGNOSE THIS WOMAN, NOT TO SAY THAT THEY HAD READ THE RECORD AND HAD LOOKED AT THE HISTORY HERE -- AND THIS WAS CLEARLY A MUNCHAUSEN BY PROXY CASE -- NOT TO IN ANY WAY EXAMINE THE RECORD, BUT TO GET UP AND JUST DESCRIBE WHAT OCCURRED WITHIN THAT SYNDROME IN GENERAL, TO EXPLAIN IT TO THE JURY SO THAT THEY COULD UNDERSTAND, IF PROVEN, IF THE FACTS UNDERNEATH PROVEN, SHOW A MOTIVE, THAT THIS IS SOMETHING THAT DOES EXIST AND IT IN FACT PROVIDES A MOTIVE. AND IN FACT THERE IS A QUOTE THAT WITHIN PHILLIPS THAT IS ESPECIALLY IMPORTANT AND IT APPEARS AROUND PAGE 77 TO 80, WHERE IN THAT PASSAGE AT 77 TO 80 THE PHILLIPS COURT SPECIFICALLY LAYS OUT A PROCEDURE FOR -- FOR PRESENTATION OF THIS KIND OF TESTIMONY, INCLUDING HOW THE QUESTION SHOULD BE FRAMED, WHAT ISSUES CAN IT GO TO AND A JURY INSTRUCTION, 2.72 THAT SHOULD BE READ WITH THE TESTIMONY AS IT -- RIGHT AFTER IT COMES IN IN AN ABUNDANCE OF CAUTION, AND THERE THE COURT SAID:
"WHILE PROSECUTOR ORDINARILY NEED NOT PROVE MOTIVE AS AN ELEMENT OF A CRIME, THE ABSENCE OF APPARENT MOTIVE MAY MAKE PROOF OF THE ESSENTIAL ELEMENTS LESS PERSUASIVE. CLEARLY THAT WAS THE PRINCIPLE PROBLEM CONFRONTING THE PROSECUTOR HERE. IN THE ABSENCE OF A MOTIVATIONAL HYPOTHESIS AND IN LIGHT OF OTHER INFORMATION WHICH THE JURY HAD CONCERNING HER PERSONALITY AND CHARACTER, THE CONDUCT OF THE APPELLANT WAS APPARENTLY INEXPLICABLE, AS BOTH PARTIES RECOGNIZED THE EXPERT'S TESTIMONY WAS DESIGNED TO FILL THIS GAP." SO PHILLIPS IS A PRIME EXAMPLE OF OUTSIDE OF ONE OF THESE USES WHERE EXPERT TESTIMONY WAS USED IN A CASE IN CHIEF TO EXPLAIN A MOTIVE, NOT TO DIAGNOSE THE VICTIM, NOT TO DIAGNOSE THE DEFENDANT, NOT TO ANALYZE EVIDENCE, BUT TO PRESENT INFORMATION TO THE TRIER OF FACTS SO THAT IT CAN BE UNDERSTOOD. AND IN DAY, A CASE THAT SPECIFICALLY TALKS ABOUT A WOMAN'S ISSUES, THERE IS -- DAY HAS A VERY, VERY IMPORTANT QUOTE WHICH THE COURT SHOULD CONSIDER WITH REGARD TO 352 TYPE OF INFORMATION OR ANALYSIS FOR THIS TESTIMONY. AND IN DAY, WHICH WAS TESTIMONY REGARDING THE KIND OF ISSUES WE ARE TALKING ABOUT HERE, WHERE THERE WAS A 352 OBJECTION TO THE EXPERT TESTIMONY, THE DAY COURT SAID, LOOK, THIS ISN'T ANY KIND OF MAGIC THAT IS BEING PLACED IN FRONT OF SOME GULLIBLE GROUP OF PEOPLE; THIS IS REASONABLE INFORMATION BEING PLACED IN FRONT OF A REASONABLE TRIER OF FACT AND IT IS ABSOLUTELY PROPER. AND NOT ONLY IS THAT SUPPORTED BY THE LAW, THERE ARE SEVERAL STUDIES WHICH WE HAVE CITED IN OUR BRIEF, LAW REVIEW ARTICLES AND STUDIES WHICH HAVE IN FACT -- AND I DON'T KNOW HOW MANY TIMES THE COURT GETS THIS KIND OF INFORMATION-- HAS IN FACT MEASURED THE IMPACT OF EXPERT WITNESS TESTIMONY ON THE TRIAL PROCESS AND JURIES WITH REGARD TO BATTERED WOMEN'S SYNDROME.
THOSE ARE CITED IN OUR BRIEF, AND AS THE COURT SAW ON THE BRIEF, WHAT WAS INDICATED IS THAT THERE WAS NO SUCH PREJUDICIAL IMPACT AS DESCRIBED BY MR. UELMEN YESTERDAY AT ALL. IN FACT, WHAT THE STUDIES FOUND AND WHAT THE COURTS FOUND IN DAY AND ARIS AND IN THE OTHER CASES, IS THAT, AS I HAVE SAID BEFORE, TO MAKE A DECISION WITHOUT THIS COULD CONSTITUTE GRAVE INJUSTICE. WITH THAT I WOULD LIKE TO CALL DR. DUTTON IF I COULD, SIR.
I WOULDN'T WANT THE WRONG RED ONION TO GET CREDIT FOR THIS SO I WANT TO MAKE SURE THE LOCATION IS CORRECT.
A WOMAN IS SIX TIMES MORE LIKELY TO BE KILLED WHEN SHE LEAVES, AND IN FACT IN HOMICIDES OF THIS TYPE, BY THE END OF TWO MONTHS, IF A WOMAN IS TO BE KILLED...47 PERCENT OF THEM WOULD HAVE BEEN KILLED WITHIN THE FIRST TWO MONTHS.
THE COMMON PLAN, THE MONDAY DESIGN OF ALL THESE ACTS IS TO CONTROL AND TO DOMINATE NICOLE BROWN SIMPSON. IF PHYSICAL VIOLENCE DOESN'T WORK, WELL, LET'S TRY A LITTLE FINANCIAL MANIPULATION.
ZACK, ALTHOUGH IT IS NOT CLEAR FROM THE RECORD OF ZACK...THE INFERENCE IS THAT THE EVIDENCE THAT YOU ARE SEEKING TO ADMIT THAT ZACK DID ALLOW WAS ALLOWED IN REBUTTAL AFTER THE DEFENDANT HAD TESTIFIED. YOU ARE ASKING ME TO ALLOW THIS EVIDENCE IN IN THE PEOPLE'S CASE IN CHIEF, WHICH IS A SIGNIFICANTLY DIFFERENT SITUATION.
BECAUSE OF THE WIDE CIRCULATION OF WHAT THE PROSECUTION DID YESTERDAY IN LAYING OUT ALL THIS LAUNDRY LIST OF ALLEGATIONS, I THINK IT IS ONLY FAIR THAT THEY STATE FOR THE RECORD THE ONES THAT THEY ARE NOT GOING TO PROCEED ON.