BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE AGAIN PRESENT. AND, MR. GORDON, YOU HAD ONE COMMENT BEFORE YOU SUBMIT THE ARGUMENT?

YES, YOUR HONOR. BEFORE WE SUBMIT -- WE HAVE DISCUSSED IT AT SIDEBAR -- WE ARE PREPARING FOR THE COURT THE FURTHER -- THE DOCUMENTS WITH REGARDS TO OUR OFFER OF PROOF. WE ARE GOING TO INDEX BY INCIDENTS THE SUPPORTING DOCUMENTS. WE WILL HAVE A COPY FOR YOU IN THE MORNING AND FOR DEFENSE FOR THEIR INSPECTION AS PART OF OUR OFFER OF PROOF.

THANK YOU. MR. UELMEN, DO YOU WISH TO RESPOND?

YES, YOUR HONOR. LET ME LEAD OFF BY ASSURING THE COURT THAT WE ARE NOT WITHDRAWING THE ARGUMENT MADE IN OUR BRIEF THAT THE ADMISSION OF THIS EVIDENCE WOULD ALSO BE A VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHTS UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS. AND WE CITE A CASE WHICH I THINK IS A VERY SIGNIFICANT ONE, THE CASE OF MC KINNEY VERSUS REESE, IN WHICH THE 9TH CIRCUIT COURT OF APPEALS RECENTLY GRANTED A WRIT OF HABEAS CORPUS TO A CALIFORNIA DEFENDANT WHO HAD BEEN CONVICTED ON THE BASIS OF THE ADMISSION OF EVIDENCE OF PRIOR ACTS; AND THE COURT HELD THAT WAS A VIOLATION OF FEDERAL DUE PROCESS RIGHTS THAT REQUIRED THE GRANT OF A WRIT OF HABEAS CORPUS. SO THIS IS NOT A GROUNDS THAT WE ARE WITHDRAWING FROM CONSIDERATION OF THE COURT. LET ME BACK UP TO THE BEGINNING, THE THEORY THAT THERE IS A SPECIAL EXCEPTION FOR RELATIONSHIP VIOLENCE CASES THAT ALLOWS THE COURT TO ADMIT EVIDENCE OF PRIOR ACTS OF MISCONDUCT WITHOUT REFERENCE TO THE EXCEPTIONS CONTAINED IN SECTION 1101(B). TO SUPPORT THAT ARGUMENT, WE HEARD FROM THE PROSECUTION A NUMBER OF ARGUMENTS. FIRST OF ALL, WE HEARD THAT THIS IS SIMPLE COMMON SENSE, THAT WHEN SOMEONE KILLS SOMEONE WITH WHOM THEY ARE IN A RELATIONSHIP, THE FIRST QUESTION THAT SHOULD OCCUR TO US IS WHAT WAS GOING ON, AND ONLY WHEN YOU UNDERSTAND WHAT WAS GOING ON IN THE RELATIONSHIP DOES THE KILLING MAKE SENSE. THERE'S ALSO ONE PROBLEM WITH THAT; AND THAT IS, THESE QUESTIONS ARISE ONLY WHEN YOU ASSUME THAT THE DEFENDANT IS THE PERSON WHO DID THE KILLING. IT'S A KIND OF A WORKING BACKWARDS KIND OF ARGUMENT. WE'RE ASSUMING THAT THE PERPETRATOR OF THIS KILLING WAS A PERSON IN RELATIONSHIP WITH THE VICTIM. SO LET'S GO BACK AND TAKE APART THAT RELATIONSHIP AND LOOK AT EVERY ASPECT OF IT. BUT THAT COMMON SENSE DOESN'T HELP US VERY MUCH OR GET US VERY FAR IF WE'RE DEALING WITH A CASE WHERE THE ISSUE TO BE LITIGATED IS, WHO DID THIS KILLING. WE'RE NOT ASSUMING THAT IT WAS ANYONE IN RELATIONSHIP WITH THE VICTIM. AND I THINK IT'S IMPORTANT TO NOTE THAT MANY, MANY OF THE CASES THAT HAVE BEEN CITED BY THE PROSECUTION THROUGHOUT THESE PROCEEDINGS ARE CASES WHERE THE IDENTITY OF THE KILLER WAS NOT REALLY AN ISSUE. WHAT WAS REALLY BEING LITIGATED WAS, WAS THAT A SELF-DEFENSE SITUATION, WAS THE KILLER ACTING IN THE HEAT OF PASSION, WAS THIS AN ACCIDENT, DID THE GUN ACCIDENTALLY GO OFF, WAS THERE DEMENTED CAPACITY, SOME FORM OF ABUSE EXCUSE? AND I WANT TO ASSURE THE COURT AT THE OUTSET HERE AND NOW, AND ALL OF THE DEFENSE LAWYERS AGREE IN THIS STATEMENT, THIS IS A MURDER CASE PERIOD. THE DEFENSE IS NOT GOING TO PRESENT ANY DEFENSE WITH RESPECT TO HEAT OF PASSION. THE DEFENDANT WILL NOT BE SEEKING AN INSTRUCTION ON VOLUNTARY MANSLAUGHTER. WE WANT THIS CASE SUBMITTED TO THE JURY AS A MURDER CASE; AND THEY WILL HAVE TO COME BACK WITH A VERDICT OF GUILTY OF MURDER OR NOT GUILTY OF MURDER, MR. O.J. SIMPSON. SO THE ONLY ISSUE REALLY THAT IS GOING TO BE IN CONTENTION IN THIS TRIAL IS WHETHER MR. O.J. SIMPSON IS THE PERSON WHO PERPETRATED THIS HOMICIDE. AND I THINK IT IS VERY IMPORTANT THAT ALL OF THIS EVIDENCE OF PRIOR CHARACTER OF THE CHARACTER OF MR. SIMPSON BE LOOKED FROM THAT PERSPECTIVE OF WHAT IS REALLY GOING TO BE IN CONTENTION IN THE COURSE OF THESE PROCEEDINGS. NOW, TO SUPPORT THIS THEORY OF A RELATIONSHIP VIOLENCE EXCEPTION, THE PROSECUTION HAS TOLD US, "WELL, ZACK ISN'T THE ONLY CASE THAT HAS EVER SAID THIS. WE'VE PRESENTED 10 CASES IN WHICH COURTS HAVE MADE STATEMENTS WITH RESPECT TO EVIDENCE COMING IN TO SHOW THE NATURE OF A RELATIONSHIP IN A RELATIONSHIP VIOLENCE CASE." WELL, I LOOKED AT THOSE 10 CASES. I CERTAINLY LOOKED AT THEM MUCH MORE CAREFULLY THAN I HAD BEFORE THE ARGUMENT WAS PRESENTED HERE IN COURT AND DISCOVERED THAT SEVEN OF THE 10 CASES PRECEDED THE ENACTMENT OF THE CALIFORNIA EVIDENCE CODE. AND I THINK THAT'S AN IMPORTANT POINT BECAUSE OF COURSE, OUR CONTENTION IS THAT THIS SO-CALLED EXCEPTION FOR RELATIONSHIP VIOLENCE CASES IS NOWHERE TO BE FOUND IN THE CALIFORNIA EVIDENCE CODE WHICH DEFINES FOR THIS CASE WHAT EVIDENCE WILL BE ADMITTED AND WON'T BE ADMITTED. ONLY THREE OF THE 10 CASES WERE ACTUALLY DECIDED UNDER THE CALIFORNIA EVIDENCE CODE AND CONSTRUED THE PROVISIONS OF 1101(A) AND 1101(B), AND THOSE ARE THE THREE CASES THAT ARE CITED ON PAGE 32 OF THE PEOPLE'S RESPONSE TO THE MOTION IN LIMINE. ALL THREE OF THESE CASES INCIDENTALLY HAVE BEEN REFERRED TO IN THE COURSE OF THE ORAL ARGUMENT PRESENTED BY THE PEOPLE, AND I THINK IT'S INTERESTING TO TAKE A LOOK AT THESE CASES AND SEE WHAT WAS REALLY AT ISSUE, WHAT WAS BEING CONTENDED IN THE TRIALS AND HOW MUCH SIMILARITY WAS THERE BETWEEN THE PRIOR ACTS THAT WERE BEING ADMITTED OSTENSIBLY TO EXPLAIN THIS RELATIONSHIP AND THE ACTUAL OFFENSE FOR WHICH THE DEFENDANT WAS ON TRIAL. THE FIRST OF THESE CASES IS PEOPLE VERSUS HELFEND, A 1969 CASE, IN WHICH THE DEFENDANT WAS ACCUSED OF MURDERING HIS FORMER WIFE'S HUSBAND. THE DEFENDANT WAS ARRESTED WHILE DRIVING AN AUTOMOBILE ACROSS THE MEXICAN BORDER IN WHICH THE BODY OF THE VICTIM, HIS FORMER WIFE'S HUSBAND, WAS IN THE TRUNK OF THE AUTOMOBILE, NOT A CASE IN WHICH THE IDENTITY OF THE KILLER WAS BEING CLOSELY CONTESTED. IN FACT, THE DEFENSE THAT HE PRESENTED IN THAT CASE WAS SELF-DEFENSE, THAT HE HAD KILLED THIS MAN IN SELF-DEFENSE. AND IT WAS IN THAT CONTEXT THAT THE COURT ADMITTED EVIDENCE THAT ON A PRIOR OCCASION, HE HAD HIRED SOMEONE OR ATTEMPTED TO HIRE SOMEONE TO BEAT UP THIS SAME VICTIM AND HE HAD ALSO BURNED DOWN THIS VICTIM'S HOUSE. NOW, THAT'S A VERY DIFFERENT PROCESS OF EVIDENTIARY INFERENCE THAN THE COURT IS BEING ASKED TO ENGAGE IN THIS CASE. WE'RE NOT JUST TALKING ABOUT EXPLAINING A RELATIONSHIP. WE ARE PRESENTING VERY SIMILAR ACTS THAT GO DIRECTLY TO COUNTERING THE DEFENDANT'S CLAIM THAT THE MURDER WAS A SELF-DEFENSE KILLING. THE SECOND CASE IS PEOPLE VERSUS DANIELS. THIS IS THE CASE IN WHICH THE DEFENDANT WAS ACCUSED OF KILLING HIS WIFE BY EXPLODING A CAN BOMB IN THE AUTOMOBILE IN WHICH SHE WAS SEATED. AND THE PRIOR MISCONDUCT THAT WAS ADMITTED OSTENSIBLY TO EXPLAIN THEIR RELATIONSHIP WAS THAT WITHIN THE ONE YEAR PRIOR TO THE CAR BOMB GOING OFF, HE HAD ATTEMPTED TO ASSAULT HER WITH A KNIFE, HE HAD HELD A GUN TO HER HEAD AND HE HAD DRIVEN A CAR OFF A CLIFF AND JUMPED OUT OF THE CAR SO THAT SHE WOULD GO OVER THE CLIFF IN THE CAR. AND FORTUNATELY, THE CAR RAN INTO A TREE, FORTUNATELY FOR HER. IT DELAYED HER DEATH BY ABOUT SIX MONTHS. NOW, THAT'S NOT EVIDENCE TO SIMPLY EXPLAIN A RELATIONSHIP. THAT IS STRONG EVIDENCE OF A PATTERN OF BEHAVIOR SHOWING THAT HIS GOAL WAS TO KILL HIS WIFE AND HE HAD FAILED ON THREE PRIOR ATTEMPTS BEFORE HE FINALLY SUCCEEDED. THE THIRD CASE IS PEOPLE VERSUS HAYLOCK INVOLVING A FEMALE DEFENDANT WHO WAS ACCUSED OF KILLING HER EX-BOYFRIEND. THE KILLING WAS COMMITTED IN AUGUST OF 1979 IN THE PRESENCE OF AN EYEWITNESS, THE EYEWITNESS BEING THE VICTIM'S MOTHER. AND SHE REPORTED THAT THE DEFENDANT ATTACKED THE VICTIM WITH A BUTCHER KNIFE SAYING, "YOU SON OF A BITCH. THIS IS WHAT YOU NEED," AND THEN STABBED HIM WITH A BUTCHER KNIFE. WELL, THE PRIOR INCIDENTS THAT WERE ADMITTED TO EXPLAIN THIS RELATIONSHIP WERE THAT NINE MONTHS BEFORE, IN DECEMBER OF 1978, SHE ATTACKED THE VICTIM WITH A BUTCHER KNIFE, AND ON FEBRUARY OR IN FEBRUARY OF 1979, SIX MONTHS BEFORE THIS INCIDENT, SHE AGAIN ATTACKED HIM WITH A BUTCHER KNIFE. NOW, WHAT WE SEE IN THESE CASES ARE SIMPLY CLASSIC EXAMPLES OF THE KIND OF SIMILARITY BETWEEN THE PRIOR INCIDENTS AND THE INCIDENT ON TRIAL THAT IS GOING TO ASSIST THE JURY IN TERMS OF RESOLVING AN ISSUE BEING CONTENDED IN THESE CASES AS TO WHETHER IT WAS AN INTENTIONAL KILLING SHOWING THE IDENTITY OF THE KILLINGS BY SIGNATURE KIND OF FACTS, THE CLASSIC APPLICATION OF THE 1101(B) EXCEPTIONS. THESE ARE FAR FROM ANY EXAMPLE OF WHAT THE COURT OR WHAT THE PROSECUTION SAYS ZACK STANDS FOR; THAT WHENEVER YOU HAVE A RELATIONSHIP CASE, YOU CAN BRING IN EVERYTHING THAT MIGHT EXPLAIN THE RELATIONSHIP IN TERMS OF PRIOR ACTS OF MISCONDUCT. NOW, WITH RESPECT TO ZACK ITSELF, I KNOW THERE HAS BEEN SOME DISAGREEMENT ABOUT WHAT ZACK REALLY STANDS FOR, IF ANYTHING. ALL WE CAN SAY IS THAT IN OUR READING OF THE CASE AS SIMPLY AN EXAMPLE OF WHAT WE CALL THE THIRD EXCEPTION, THAT IS WHERE THE DEFENDANT TAKES THE STAND AND PRESENTS HIS RELATIONSHIP AS A POSITIVE LOVING ONE, THAT THE PEOPLE CAN COUNTER THAT WITH EVIDENCE JUST AS THEY CAN WITH ANY OTHER WITNESS TO SHOW THAT THIS ISN'T TRUE. AND THAT OF COURSE WOULD NOT ARISE UNLESS THAT WAS DONE IN THIS CASE IN TERMS OF EVIDENCE BEING PRESENTED BY THE DEFENDANT. ALL I CAN SAY IS, OUR READING OF ZACK PUTS US IN VERY GOOD COMPANY BECAUSE THAT IS PRECISELY HOW THE CALIFORNIA SUPREME COURT READ ZACK. THE ONLY CASE THAT ANYONE CAN FIND IN WHICH THE CALIFORNIA SUPREME COURT HAS EVER CITED ZACK IS THE CASE OF PEOPLE VERSUS ALLISON. AND WE INVITE THE COURT'S ATTENTION TO THE FOOTNOTE IN ALLISON, WHERE THAT IS EXACTLY WHAT THEY SAY. ZACK STANDS FOR THE PROPOSITION THAT A DEFENDANT WHO TESTIFIES CAN BE IMPEACHED WITH EVIDENCE OF PRIOR INCIDENTS OF MISCONDUCT. AND FINALLY, THE PEOPLE RELY ON THE HASTON CASE AS REALLY AN EXAMPLE OF THIS RELATIONSHIP CONCEPT, THAT SOMEHOW HASTON REINFORCES THIS THEORY BECAUSE IN HASTON, THE PRIOR ACTS THAT WERE ADMITTED WERE ACTS COMMITTED WITH THE SAME CONFEDERATE, AND BECAUSE THE DEFENDANT HAD COMMITTED TWO PRIOR ROBBERIES WITH THE SAME CONFEDERATE, THE JURY COULD DRAW AN INFERENCE THAT SINCE HE WAS CHARGED IN THIS CASE WITH COMMITTING A ROBBERY WITH THE SAME CONFEDERATE, THAT THIS IS A PATTERN OF CONDUCT THAT ASSISTED IN IDENTIFYING HIM AS THE PERPETRATOR. SO THE SIGNATURE REALLY WAS THE PRESENCE OF THAT CONFEDERATE. THAT REALLY ISN'T A RELATIONSHIP CASE AT ALL. IN FACT, THAT CASE MIGHT BE OF SOME ASSISTANCE TO THE PROSECUTION IF THEY HAD EVIDENCE THAT ON TWO PRIOR OCCASIONS, MR. SIMPSON HAD ENCOUNTERED NICOLE BROWN SIMPSON WITH RONALD GOLDMAN, AND ON BOTH OF THOSE OCCASIONS, MR. SIMPSON REACTED IN SOME SORT OF VIOLENT WAY BY ASSAULTING HIS WIFE OR ASSAULTING MR. GOLDMAN. THEN WE MIGHT HAVE SOMETHING TO TALK ABOUT IN TERMS OF WHETHER THOSE INCIDENTS EXPLAIN WHAT HAPPENED ON THE NIGHT OF JUNE 12TH, 1994 WHEN THE PROSECUTION IS GOING TO THEORIZE THAT A THIRD SUCH CONFRONTATION TOOK PLACE. BUT THAT'S NOT WHAT WE HAVE HERE. WE DON'T HAVE ANY SIMILAR FACTS ON WHICH WE CAN HANG ANY SORT OF INFERENCE THAT THIS CRIME ON JUNE 12TH WAS DONE WITH A PARTICULAR INTENT, WITH A PARTICULAR MOTIVE OR WAS DONE BY A PARTICULAR PERSON. NOW, WHEN WE GET TO THE TRADITIONAL 1101(B) EXCEPTIONS, IT OCCURRED TO ME AGAIN THE PROSECUTION MIGHT HAVE SOMETHING TO TALK ABOUT. THEY HAVE A WONDERFUL THEORY IF THEY COULD SHOW THAT WHEN THE POLICE ARRIVED AT THE BUNDY PREMISES ON THE -- EARLY MORNING HOURS OF JUNE 13TH, 1994, THEY FOUND TWO DEAD BODIES AND THEY FOUND A LOT OF BROKEN PICTURE FRAMES WITH FAMILY PICTURES. WOULDN'T WE HAVE A STUNNING SIGNATURE KIND OF CASE IN WHICH WE COULD GO BACK TO PRIOR INCIDENTS OF BROKEN FAMILY PICTURES AND SAY, "LOOK, LOOK AT WHAT WAS DONE HERE, AND WE CAN INFER THAT THE SAME THING WAS GOING ON ON JUNE 12TH"? AND THAT REALLY IS WHAT 1101(B) IS ALL ABOUT, WHEN YOU HAVE THOSE KIND OF SIMILAR FACTS. BUT HERE, THERE'S NO SUCH EVIDENCE. HERE, THE ONLY ISSUE WE WANT TO LITIGATE IS WHO WAS THERE JUNE 12TH AND COMMITTED THESE HOMICIDES. AND WE'RE SAYING WE'RE READY AND WILLING TO LITIGATE THAT ISSUE ON THE BASIS OF WHAT YOU DID FIND ON THE SIDEWALK. IN FACT, WE'RE WITHDRAWING OUR OBJECTIONS AND LETTING ALL OF THAT EVIDENCE COME IN BECAUSE THAT IS THE EVIDENCE THE JURY SHOULD LOOK AT IN TERMS OF DECIDING THIS CASE IN WHICH THE ONLY REAL ISSUE IS WHO COMMITTED THESE KILLINGS. NOW, THE TREASURE TROVE CASE OF EWOLDT, I FOUND IT AMUSING THAT A CALIFORNIA SUPREME COURT OPINION WITHIN THE LAST YEAR HAS SOMEHOW BEEN APPROPRIATED AS A SECRET TREASURE TROVE OF THE PROSECUTION. THE REASON WE POINTED THE COURT'S ATTENTION TO EWOLDT WAS BECAUSE IT IS THE LAST WORD FROM THE CALIFORNIA SUPREME COURT WITH RESPECT TO THE MEANING OF THE 1101(B) EXCEPTIONS. AND THE GUIDING PRINCIPAL THAT THE COURT SETS FORTH IN EWOLDT IS THAT PRINCIPAL OF SIMILARITY. AND THEY HAVE SIMPLY LAID OUT AN ATTEMPT TO QUANTIFY HOW MUCH SIMILARITY YOU NEED FOR EACH OF THE VARIOUS THEORIES THAT YOU ARE PURSUING. AND THEY POINT OUT FIRST OF ALL THAT WHEN WE'RE TALKING ABOUT MOTIVE OR INTENT AS THE THEORY, THAT UNDER THESE CIRCUMSTANCES ORDINARILY, THE IDENTITY HAS BEEN ASSUMED. WE KNOW WHO DID IT AND WE'RE LOOKING AT WHY THEY DID IT OR WHAT INTENT THEY DID IT WITH. AND IF OUR REAL PURPOSE IS TO SHOW IDENTITY, TO SHOW THAT THE SAME PERPETRATOR DID THESE PRIOR ACTS AND DID THE ACT FOR WHICH HE IS NOW ON TRIAL, WE HAVE THE STRONGEST NEED FOR SIMILARITY, THAT THE SIMILARITY MUST RISE TO THE LEVEL OF SIGNATURE FACTS.

NOW, EWOLDT WAS NEITHER. EWOLDT WAS A SITUATION THE COURT DEFINED AS KIND OF IN THE MIDDLE IN TERMS OF COMMON DESIGN OR PLAN. BUT EVEN IN TERMS OF SHOWING A SERIES OF ACTS WITH A COMMON DESIGN OR PLAN, THE COURT INSISTED ON A GOOD DEAL OF SIMILARITY BETWEEN THE ACTS BEFORE WE COULD INFER THAT THEY WERE PART OF A COMMON DESIGN OR PLAN. AND I THINK IT'S IMPORTANT TO LOOK IN EWOLDT AT HOW MUCH SIMILARITY THERE ACTUALLY WAS BETWEEN THE PRIOR ACTS OF ABUSE OF A STEP CHILD AND THE CURRENT ACT OF ABUSE OF A STEP CHILD FOR WHICH THE DEFENDANT WAS ON TRIAL. THE COURT SAID IN THE PRESENT CASE:

"THE VICTIMS OF BOTH THE UNCHARGED MISCONDUCT AND THE CHARGED OFFENSES WERE THE DEFENDANT'S STEPDAUGHTERS WHO WERE RESIDING IN THE DEFENDANT'S HOME AND THE ACTS OCCURRED WHEN THE VICTIMS WERE OF A SIMILAR AGE.

"ON THREE OCCASIONS, THE DEFENDANT MOLESTED NATALIE AT NIGHT WHILE SHE WAS ASLEEP IN HER BED. AND WHEN HE WAS DISCOVERED, THE DEFENDANT ASSERTED HE WAS ONLY STRAIGHTENING UP THE COVERS." NATALIE WAS THE VICTIM OF THE PRIOR UNCHARGED OFFENSES.

"IN TWO OF THE CHARGED OFFENSES, THE DEFENDANT MOLESTED JENNIFER IN AN ALMOST IDENTICAL FASHION COMING INTO HER BEDROOM MOLESTING HER, AND THEN WHEN SHE AWOKE, OFFERING THE EXCUSE THAT HE WAS FIXING THE COVERS." SO SIGNATURE FACTS AGAIN, VERY CLOSE FACTUAL SIMILARITY FROM WHICH WE CAN DRAW AN INFERENCE THAT THESE ACTS WERE PART OF A COMMON DESIGN OR PLAN. WE HAVE NO SUCH SIMILARITIES IN THIS CASE. AGAIN AND AGAIN, WE HAVE CHALLENGED THE PEOPLE TO SHOW US WHERE ARE THE SIMILARITIES. WHERE IS THE SIMILARITY BETWEEN A FIGHT ON NEW YEAR'S EVE WHERE BOTH PARTIES HAVE BEEN DRINKING, AT LEAST SOME SLAPPING AND WHAT HAPPENED ON THAT SIDEWALK ON JUNE 12TH, 1994? WHERE IS THE SIMILARITY BETWEEN PEOPLE ARGUING ABOUT WHETHER SOMEBODY HAS HAD TOO MUCH TO DRINK AND WHO SHOULD DRIVE CARS BACK FROM A RESTAURANT AND WHAT HAPPENED ON THAT SIDEWALK ON JUNE 12TH, 1994? THERE'S JUST NO SIMILARITY HERE. FINALLY, WITH RESPECT TO THE 1101(B) EXCEPTION, WE HAVE TO ADDRESS THE ISSUE OF 352. THAT IS, ASSUMING WE FIND ENOUGH SIMILARITY TO SAY 1101(B) APPLIES, WE STILL HAVE TO LOOK UNDER 352 AT WHETHER THE DANGER OF SUBSTANTIAL PREJUDICE OF CONFUSING THE JURY OF UNDUE CONSUMPTION OF TIME, OF MISLEADING THE JURY OUTWEIGHS WHATEVER PROBATIVE VALUE THIS EVIDENCE MIGHT HAVE. AND HERE, YOUR HONOR, I CAN NOT STRESS TOO MUCH THE IMPORTANCE OF LOOKING AT THE PURPOSE FOR WHICH THIS EVIDENCE WILL BE USED IN ORDER TO ASSESS THE POTENTIAL PREJUDICIAL IMPACT. I MEAN IF WE ARE IN THE MIDST OF THE TRIAL WHERE THE ONLY ISSUE REALLY IN CONTENTION IS, DID MR. SIMPSON DO IT, AND THE PEOPLE COME IN SAYING, "WELL, WE WANT TO OFFER THIS TO EXPLAIN A RELATIONSHIP, WE WANT TO OFFER THIS TO SUGGEST A MOTIVE RELATED TO ESTRANGEMENT," WE HAVE TO ASSESS WHETHER A JURY IS GOING TO BE ABLE TO LIMIT THEIR CONSIDERATION OF THEIR EVIDENCE TO JUST THAT ISSUE OR WHETHER IN FACT THEY WON'T REALLY USE IT AS EVIDENCE OF IDENTITY AND USE IT AS EVIDENCE OF IDENTITY WITHOUT THE REQUISITE SIGNATURE FACTS THAT ARE DEMANDED BY THE LAW. THAT IS THE REAL RISK OF PREJUDICE THAT WE FACE IN THIS CASE. AND I THINK THAT THE RISK IS A VERY, VERY SUBSTANTIAL ONE WITH RESPECT TO MUCH OF THIS EVIDENCE; THAT THERE IS GREAT DANGER THAT IT WOULD BE MISUSED BY THE JURY, THAT THE JURY WOULD BE MISLED AND CONFUSED BY IT. WITH RESPECT TO WHAT KIND OF PREJUDICE MIGHT ENSUE, I FOUND A VERY INTERESTING CONTRAST BETWEEN MR. GOLDBERG'S ARGUMENT SAYING, "WELL, IT'S REALLY SILLY TO BELIEVE THAT A JURY WOULD ACTUALLY LOOK AT THESE PRIOR INCIDENTS OF ASSAULTIVE BEHAVIOR AND SAY, 'WELL, BECAUSE THE DEFENDANT HADN'T BEEN CONVICTED OF THOSE ASSAULTIVE BEHAVIORS, WE'RE GOING TO CONVICT HIM NOW OF A DOUBLE MURDER,'" THAT THAT SOMEHOW KIND OF PREJUDICE OCCURRING IN A TRIAL WAS BEYOND BELIEF. AND THEN MR. GORDON GOT UP AND MR. GORDON SAID, "YOU KNOW WHY WE'RE HERE. WE'RE HERE BECAUSE OF A FAILURE OF THE CRIMINAL JUSTICE SYSTEM. THE CRIMINAL JUSTICE SYSTEM LET NICOLE BROWN SIMPSON DOWN." I DON'T THINK WE COULD HAVE A BETTER EXAMPLE OF THE PREJUDICIAL IMPACT THIS KIND OF EVIDENCE CAN HAVE TO SAY TO A JURY, "WE LET THIS VICTIM DOWN, BUT NOW WE CAN MAKE UP FOR IT BY CONVICTING THIS MAN OF MURDER BECAUSE HE WASN'T CONVICTED. HE WASN'T BROUGHT TO JUSTICE FOR ALL OF THIS PRIOR ASSAULTIVE BEHAVIOR," AND THAT IS A TRUE SUBSTANTIAL RISK OF PREJUDICE IN THIS CASE. THE OTHER ASPECT OF 352 THAT WAS DISCUSSED WAS THE QUESTION OF UNDUE CONSUMPTION OF TIME, THAT SOMEHOW THE DEFENSE WAS IN A POSTURE HERE OF BLACKMAILING THE COURT IN SAYING, "WELL, IF WE HAVE TO LITIGATE ALL OF THE NUANCES OF ALL OF THESE PRIOR INCIDENTS, WE'RE GOING TO BE STUCK IN THIS TRIAL FOR A VERY LONG TIME LITIGATING A LOT OF ISSUES OF VERY LIMITED RELEVANCE." I FIND IT CURIOUS TO SUGGEST THAT THAT IS SOME SORT OF BLACKMAIL BY THE DEFENSE WHEN THE DEFENSE IS ONLY PUT IN THAT POSITION AFTER THE PROSECUTION USES A TABLOID BOOK AS KIND OF A SLUDGE DREDGE TO LOOK THROUGH A 17-YEAR RELATIONSHIP AND COME UP WITH EVERY CONCEIVABLE WITNESS, MANY OF WHOM THEY NOW RECOGNIZE ARE OF HIGHLY QUESTIONABLE CREDIBILITY AND TO BRING THAT ALL IN AND SAY, "WE WANT TO OFFER THIS IN EVIDENCE IN THIS TRIAL AND TO KEEP EXPANDING THE SCOPE OF THIS CASE FAR BEYOND THE QUESTION WITH WHICH MR. SIMPSON WAS CONFRONTED BY THE CHARGES THAT WERE FILED AGAINST HIM LAST JUNE OF WHETHER IN FACT HE COMMITTED THIS MURDER." NOW, LET ME ADDRESS THE QUESTION OF THE WHOLE ISSUE OF BATTERED WOMEN'S SYNDROME AND ITS RELEVANCE TO THIS TRIAL. WE'RE TOLD THAT WHAT WE HAVE HERE IS A TEXTBOOK EXAMPLE OF THE BATTERED WOMEN'S SYNDROME AND UNBROKEN PATTERN OF ESCALATING VIOLENCE CULMINATING IN A MURDER JUNE 12TH, 1994. AND WHEN WE LOOK AT THIS WHEEL OF THE BATTERED WOMEN'S SYNDROME, I THINK WE RECOGNIZE IMMEDIATELY THAT THERE ARE A LOT OF SPOKES MISSING FROM THIS WHEEL. THERE ARE A LOT OF EXCEPTIONS TO WHAT IS CALLED THE TEXTBOOK PATTERN OF THE BATTERED WOMEN'S SYNDROME. FOR EXAMPLE, NONE OF THE INCIDENTS OR THE EVIDENCE PRESENTED TO THE COURT IN THE COURSE OF THIS HEARING SUGGESTS ANY USE OF ECONOMIC ABUSE BY THE DEFENDANT IN ORDER TO CONTROL THE VICTIM IN THIS CASE. AND I CAN MAKE A BRIEF OFFER OF PROOF. WE BELIEVE THE EVIDENCE IN THIS CASE WILL SHOW QUITE TO THE CONTRARY; THAT FROM THE BEGINNING OF THEIR RELATIONSHIP, MR. SIMPSON ENCOURAGED NICOLE BROWN SIMPSON TO BE ECONOMICALLY INDEPENDENT. HE ENCOURAGED HER TO START HER OWN BUSINESS, TO BECOME SELF-SUFFICIENT. HE RECOMMENDED HER TO MANY FRIENDS IN TERMS OF HER INTERIOR DECORATING ABILITIES. AT ALL TIMES THROUGHOUT THEIR MARRIAGE, THEY MAINTAINED SEPARATE CHECKING ACCOUNTS. SO MRS. SIMPSON NEVER HAD TO ASK PERMISSION TO WRITE A CHECK. SHE HAD HER OWN CREDIT CARD ACCOUNTS. WHEN THEY WERE MARRIED, MR. SIMPSON MADE A GIFT TO MRS. SIMPSON OF A CONDO WORTH $500,000 WHICH BROUGHT HER A MONTHLY INCOME OF ABOUT $3,000 WHICH -- FOR WHICH SHE WAS TOTALLY NOT DEPENDENT ON MR. SIMPSON. HE PURCHASED FOR HER A FERRARI AUTOMOBILE, A MERCEDES AND A PORSCHE AUTOMOBILE AND ALL OF THOSE AUTOMOBILES WERE PUT IN HER OWN NAME. SHE WAS GIVEN COMPLETE CONTROL OVER THOSE VEHICLES. NOW, THERE WAS A BRIEF SUGGESTION THAT BECAUSE MR. SIMPSON AT SOME POINT COMPLAINED I BELIEVE IT WAS TO ONE OF A MEMBER OF MRS. SIMPSON'S FAMILY THAT HE WAS PAYING FOR THE DINNERS FOR HER BOYFRIENDS, IT WAS SUGGESTED THAT THIS WAS SOME SORT OF ATTEMPT TO EXERT ECONOMIC CONTROL. AND THE EVIDENCE WILL SHOW WHAT REALLY HAPPENED WAS, DURING THE PENDENCY OF THEIR DIVORCE, WHILE MR. SIMPSON WAS PAYING $25,000 A MONTH IN TEMPORARY SUPPORT, MRS. SIMPSON TOOK KEITH ZLOMSOWITCH TO DINNER AT A GOLF CLUB IN LAGUNA AND CHARGED IT TO MR. SIMPSON'S ACCOUNT. NOW, IS THAT ECONOMIC BLACKMAIL? IS THAT AN ATTEMPT TO EXERT CONTROL WHEN HE PROTESTS THAT THAT KIND OF ENTERTAINMENT IS STILL BEING BILLED TO HIM AT A TIME WHEN HE IS ALREADY PAYING SUBSTANTIAL AMOUNT OF TEMPORARY SUPPORT? THE SUGGESTION CONCERNING THIS TAX FRAUD INVESTIGATION, THAT THAT IS SOME SORT OF INTIMIDATION I THINK HAS BEEN FULLY EXPLAINED. AND IF YOUR HONOR LOOKS AT THE LETTER THAT WAS WRITTEN AND SEES THAT THE ONLY POINT BEING MADE IS THAT MR. SIMPSON CANNOT PARTICIPATE IN A FRAUD ON THE GOVERNMENT BY HAVING MRS. SIMPSON CLAIM THAT HER PRINCIPAL RESIDENCE IS HIS HOME, THAT'S THE ONLY POINT THE LETTER MAKES. IT DOES NOT ATTEMPT TO COERCE HER IN ANY WAY OR THREATEN HER OR EXERT CONTROL OVER HER. SO THAT SPOKE IS TOTALLY MISSING FROM THIS PICTURE OF ANY SORT OF ECONOMIC ABUSE. LIKEWISE MISSING IS ANY SUGGESTION THAT MR. SIMPSON EVER USED THE CHILDREN AS A MEANS OF CONTROL OVER HIS WIFE OR HIS FORMER WIFE. IN FACT, ON NUMEROUS OCCASIONS, THE EVIDENCE WILL SHOW THAT HE WAS COMPLIMENTARY OF HER ABILITY AS A MOTHER AND VERY SUPPORTIVE OF THE DECISIONS SHE WAS MAKING WITH RESPECT TO THE RAISING OF THE CHILDREN. THE ONLY TIME THE CHILDREN EVER CAME UP IN ANY OF ALL OF THESE INCIDENTS THAT WE HAVE GONE THROUGH ITEM BY ITEM WAS WITH RESPECT TO THE ZLOMSOWITCH INCIDENT WHEN MR. SIMPSON RAISED CONCERNS ABOUT SEXUAL ACTIVITY TAKING PLACE IN HIS HOME WHILE HIS CHILDREN WERE PRESENT AND COULD POSSIBLY ACCIDENTALLY INTERRUPT OR OBSERVE THAT ACTIVITY GOING ON. THE SUGGESTION THAT SOMEHOW AN AUDIT TRAIL CONFIRMS THE PRESENCE OF A BATTERING RELATIONSHIP SUGGESTS THAT THE ONLY MOTIVATION FOR MRS. SIMPSON TO MAINTAIN EVIDENCE OF ASSAULTIVE BEHAVIOR IN A SAFETY DEPOSIT BOX WAS FOR SOME POTENTIAL CRIMINAL CONSEQUENCES OF ABUSIVE BEHAVIOR. BUT THE FACTS WILL SHOW THAT ALL OF THIS TOOK PLACE IN THE WAKE OF THE 1989 INCIDENT, THAT PART OF THE AGREEMENT ENTERED INTO AS A RESULT OF THAT INCIDENT WAS MR. SIMPSON AGREEING THAT IF HE EVER STRUCK OR LAID A HAND ON MRS. SIMPSON AGAIN, THE PRENUPTIAL AGREEMENT WOULD BE VOIDABLE, AND THAT IT MIGHT SUGGEST A MOTIVE WHY AN AUDIT TRAIL WOULD BE MAINTAINED IN THIS CASE IN CASE MRS. SIMPSON EVER WANTED TO TRY TO EXERCISE THAT OPTION. AND I THINK IT'S SIGNIFICANT THAT NEVER ONCE WAS THAT OPTION EXERCISED EVEN IN THE COURSE OF A CONTENTIOUS DIVORCE PROCEEDING THREE YEARS LATER. IN THE COURSE OF THAT DIVORCE PROCEEDING, IN A DEPOSITION, THE EVIDENCE WILL SHOW MRS. SIMPSON STATED UNDER OATH THAT SINCE THE 1989 INCIDENT, THAT O.J. SIMPSON HAD NEVER LAID A HAND ON HER. NOW, WHAT DOES THAT SUGGEST IN TERMS OF A TEXTBOOK EXAMPLE OF BATTERED WOMEN'S SYNDROME? WHAT IT SUGGESTS TO ME IS THAT INTERVENTION WORKED; THAT IN THE WAKE OF THAT INCIDENT, WHEN MR. SIMPSON WENT TO COURT, PLED NO CONTEST, WAS GIVEN AS A CONDITION OF PROBATION THAT HE UNDERGO COUNSELING, THAT THAT COUNSELING WAS ACTUALLY QUITE SUCCESSFUL. THE PHYSICAL ABUSE CAME TO AN ABRUPT HALT. THERE WAS NO VIOLENCE IN ANY INCIDENT THEREAFTER. I MEAN EVEN LOOKING AT ALL OF THE ALLEGATIONS DREDGED UP BY THE PROSECUTION. AND I THINK WE CAN REST ASSURED THAT THEY HAVE DONE A COMPLETE INVESTIGATION OF ANY INCIDENT OF PHYSICAL VIOLENCE. THE ONLY INCIDENT AFTER 1989, AFTER JANUARY 1ST WAS THE ALLEGED INCIDENT INVOLVING THE AUTOMOBILE AND THE PUSHING AND SHOVING OF WHO WAS GOING TO GET IN WHAT AUTOMOBILE. AND APPARENTLY WHILE ONE WITNESS TO THAT INCIDENT CLAIMS THAT IT WAS AN EXAMPLE OF PHYSICAL ABUSE, IT WAS NOT CONSTRUED AS SUCH BY NICOLE BROWN SIMPSON, BECAUSE IN HER DEPOSITION, SHE SAID SINCE THE 1989 INCIDENT, O.J. HAD NOT LAID A HAND ON HER. AND THAT'S THE ONLY ALLEGATION. OF COURSE, THERE ARE FIVE OTHER WITNESSES TO THAT INCIDENT WHO MAY GIVE A VERY DIFFERENT VERSION. BUT WE HAVE ACTUALLY NOT ONE SINGLE BIT OF EVIDENCE OF ANY PHYSICAL ASSAULTIVE BEHAVIOR OR ABUSE TOWARD THE VICTIM AFTER JANUARY 1ST, 1989 WHEN THAT INTERVENTION TOOK PLACE.

THE PROBLEM WITH THIS WHEEL OF THE BATTERED WOMAN'S SYNDROME IS THAT IT IS A WHEEL, AND WHEELS CAN SPIN, AND THIS WHEEL CAN PUT A SPIN ON EVERYTHING THAT MR. SIMPSON DOES OVER THE COURSE OF A 17-YEAR RELATIONSHIP. IF HE BRINGS FLOWERS TO THE DOORSTEP, HE'S CONTROLLING. IF HE APOLOGIZES, HE'S MINIMIZING. IF HE CRITICIZES HIS WIFE FOR SEXUAL ESCAPADES IN THE VIEW OF PASSERSBY, HE'S HUMILIATING HER. IF HE BREAKS HER FAMILY PICTURES, HE'S DEMEANING HER. IF HE BREAKS HIS FAMILY PICTURES, WE ASSUME HE'S ACTING LIKE THE MASTER OF THE CASTLE. SO IT'S A SPINNING WHEEL THAT CAN PUT A SPIN ON ALL OF THIS BEHAVIOR. AND THIS IS NOT TO MINIMIZE SPOUSAL ABUSE. WE DON'T INTEND TO MINIMIZE IT AT ALL. THERE IS NO EXCUSE FOR ABUSIVE BEHAVIOR. BUT WHAT WE'RE REALLY LEFT WITH IN THIS CASE IS A RECORD OF OCCASIONAL LAPSES IN THE COURSE OF A 17-YEAR RELATIONSHIP THAT DON'T EVEN FIT THE CLASSIC EXAMPLE OF WHAT THE BATTERED WOMEN'S SYNDROME IS. BUT EVEN IF IT DID, THE QUESTION THAT THIS COURT REALLY FACES IS WHAT WOULD THAT PROVE? WOULD THAT PROVE THAT MR. SIMPSON IS THE PERPETRATOR OF A MURDER BECAUSE HE WAS THE PERPETRATOR OF ABUSE IN A BATTERING RELATIONSHIP? AND EVEN THE EXPERT PRESENTED BY THE PEOPLE WOULD NOT VENTURE OUT ON TO THAT LIMB, WOULD NOT SAY THAT BASED ON THE EARMARKS OF THE BATTERING WOMEN'S SYNDROME, WE CAN MAKE ANY SORT OF PREDICTION AS TO WHETHER THE BATTERER IN THAT RELATIONSHIP IS LIKELY TO BE THE PERPETRATOR OF A HOMICIDE. AND THE REASON HE WOULDN'T VENTURE OUT ON TO THAT LIMB IS BECAUSE HE WAS QUITE HONEST AND FRANK IN ADMITTING THAT THAT'S REALLY NOT THE PURPOSE OF THE RESEARCH THAT HAS BEEN DONE WITH RESPECT TO THE BATTERED WOMEN'S SYNDROME. THE REAL PURPOSE IS TO EXPLAIN THE CONDUCT OF THE VICTIMS. AND WHEN THE STATE LEGISLATURE INDICATED THAT UNDER LIMITED CIRCUMSTANCES, EVIDENCE OF THE BATTERED WOMEN'S SYNDROME WILL BE ADMISSIBLE IN A CRIMINAL TRIAL, THEY DELINEATED WHAT THOSE CIRCUMSTANCES WOULD BE, WHERE IT MIGHT BE RELEVANT TO PROVE THE STATE OF MIND OF THE VICTIM. AND THE REFERENCE TO THE POSSIBLE USE OF THAT EVIDENCE BY THE PROSECUTION WAS EXPLAINED IN THE LEGISLATIVE REPORTS AS WHERE IT BECOMES NECESSARY TO EXPLAIN WHY A VICTIM REFUSES TO CORROBORATE OR RECANTS OR WON'T TESTIFY AGAINST THE BATTERER AND THE PROSECUTION WANTS TO CARRY ON THE PROSECUTION OF THE BATTERER. UNDER THOSE CIRCUMSTANCES, BRINGING IN EVIDENCE OF THE BATTERED WOMEN'S SYNDROME WILL EXPLAIN THE STATE OF MIND OF THE VICTIM, BUT IT CAN'T BE USED AS EVIDENCE TO SHOW IT'S MORE LIKELY THAT THE BATTERER DID THE ABUSIVE BEHAVIOR WITH WHICH HE IS ACCUSED. AND THAT EXCEPTION REALLY GETS TO THE HEART OF WHAT THE PROSECUTION WANTS TO DO WITH THE BATTERED WOMEN'S SYNDROME EVIDENCE IN THIS CASE. IT'S NOT GOING TO BE TO EXPLAIN ANY CONDUCT OF THE VICTIM. THERE ISN'T ANY CONDUCT OF THE VICTIM THAT IS IN ISSUE IN THIS CASE. IT'S SIMPLY NOT SOMETHING WE'RE GOING TO LITIGATE, THAT NEEDS TO BE EXPLAINED. ITS ONLY PURPOSE IS TO DRAW AN INFERENCE THAT IF SHE WAS THE VICTIM OF A BATTERING RELATIONSHIP, THEN MR. SIMPSON WAS A BATTERER; AND, THEREFORE, IT'S MORE LIKELY THAT HE COMMITTED THIS MURDER ON JUNE 12TH, 1994. AND THAT IS PRECISELY THE USE OF THIS EVIDENCE THAT IS FORBIDDEN BY SECTION 1107 OF THE EVIDENCE CODE. I DON'T THINK THERE'S ANY DISAGREEMENT BETWEEN OUR READING OF BLEDSOE AND BOWKER AND ARIS AND THE PEOPLE'S READING OF THOSE CASES. WHAT'S SIGNIFICANT IS THAT IN ENACTING 1107, THE LEGISLATURE HAD THE SAME UNDERSTANDING AS WE DO OF THOSE CASES AND DID NOT INTEND TO IN ANY WAY DISTURB THE FORCE OF THOSE RULINGS AND WANTED TO ENACT A RULE THAT IS CONSISTENT WITH THOSE RULINGS, THAT THIS SYNDROME EVIDENCE WILL NOT BE ADMISSIBLE FOR THE PURPOSE TO WHICH THE PEOPLE INTEND TO PUT IT. ONE OF THE POTENTIAL USES OF THIS BATTERED WOMEN'S SYNDROME, EXPERT TESTIMONY WAS REVEALED IN A VERY INTERESTING WAY BY MS. BODIN'S ARGUMENT WHERE SHE SUGGESTED THAT WHAT THEY REALLY WANTED TO DO WITH ALL OF THIS HEARSAY EVIDENCE THAT THEY RECOGNIZE MAY NOT BE ADMISSIBLE WAS TO PUT THE DEFENSE ON NOTICE, AND SHE EXPLAINED WHAT WE WERE BEING PUT ON NOTICE OF. WE WERE BEING PUT ON NOTICE THAT IF THE DEFENDANT TESTIFIES, SOME OF THIS MAY BE USED TO IMPEACH HIS TESTIMONY. AND THAT OF COURSE IS A RISK WE'RE WELL AWARE OF. WE DON'T NEED TO BE PUT ON NOTICE OF THAT. BUT SECONDLY, SHE SAYS, "AND WE'RE GOING TO BE CALLING AN EXPERT, AND HEARSAY EVIDENCE IS USABLE BY AN EXPERT TO EXPLAIN THE BASIS OF THE OPINION TO WHICH THE EXPERT COMES IF IT IS INFORMATION THAT EXPERTS IN THIS FIELD ORDINARILY RELY ON." AND AT THAT POINT, A LITTLE ALARM SIGNAL STARTED GOING OFF IN MY HEAD; THAT THE REAL AGENDA HERE WITH TRYING TO BRING IN A BATTERED WOMEN'S EXPERT MAY SIMPLY BE TO FIND A WAY TO FUNNEL IN ALL OF THE INADMISSIBLE HEARSAY BY HAVING THE EXPERT COME IN AND SAY, "WELL, MY OPINION IS BASED ON THIS AND THIS AND THIS AND THIS," ALL OF WHICH IS NOT ADMISSIBLE BECAUSE IT'S HEARSAY. AND THEN WE'LL INSTRUCT THE JURY THAT THEY SHOULDN'T CONSIDER IT FOR THE TRUTH OF WHAT WAS BEING ASSERTED, BUT ONLY TO THE EXTENT IT SUPPORTS THE OPINION OF THE EXPERT. SO THERE IS A VERY SUBSTANTIAL RISK OF PREJUDICE, OF THE ATTEMPTING TO BRING IN THROUGH THE BACK DOOR INADMISSIBLE HEARSAY EVIDENCE IN THE EMPLOYMENT OF THIS BATTERED WOMEN'S EXPERT AS WELL. AND I THINK THE LEGISLATURE WAS WELL AWARE OF THOSE KINDS OF DANGERS WHEN IT ENACTED THE PARTICULAR EXCEPTION IT ENACTED TO SECTION 1107. NOW, LET ME TURN TO THE HEARSAY PROBLEMS IN THIS CASE. A PRINCIPAL HEARSAY PROBLEM IS GOING TO BE IN THE CONTEXT OF THE 911 TAPES. AND THERE ARE TWO 911 TAPES. THE 911 TAPE FOR THE 1989 INCIDENT WE WILL OBJECT TO AS SIMPLY IRRELEVANT. YOUR HONOR WILL NOTE -- AND YOU HAVE A TRANSCRIPT OF THAT 911 CALL NOW -- THAT THE LEGEND INCLUDES AN END FOR THE STATEMENT OF NICOLE BROWN SIMPSON IN THAT CALL. AND THEN YOU READ THROUGH THE TRANSCRIPT, AND YOU WON'T FIND AN END ANYWHERE IN THERE. THERE IS NOT ONE UTTERANCE IN THAT ENTIRE TRANSCRIPT THAT IS ATTRIBUTED TO NICOLE BROWN SIMPSON. THE TRANSCRIPT IS SIMPLY A TRANSCRIPT OF SOMEBODY SCREAMING OVER THE BACKGROUND OF A 911 OPERATOR. AND WE WILL CONTEND THAT EVIDENCE OF THAT NATURE WOULD BE EXTREMELY PREJUDICIAL. IT WOULD HAVE NO PROBATIVE VALUE. IT SHOULD BE EXCLUDED NOT JUST AS HEARSAY, BUT BECAUSE IT WOULD VIOLATE 352. IT GETS US NOWHERE IN TERMS OF EXPLAINING THAT INCIDENT OR WHAT HAPPENED. THE 1993 TAPE PRESENTS A MUCH MORE DIFFICULT PROBLEM FOR THE COURT. AND I DON'T THINK YOUR HONOR CAN SIMPLY RULE THAT THAT TAPE IS ADMISSIBLE OR NOT ADMISSIBLE WITHOUT CAREFULLY EXAMINING THE DIALOGUE THAT TOOK PLACE IN THE COURSE OF THAT 14-MINUTE CONVERSATION. SIMPLY SAYING THAT THIS IS A SPONTANEOUS STATEMENT DOES NOT MAKE THE WHOLE 14-MINUTE CONVERSATION ADMISSIBLE. THERE WERE PARTS OF THAT CONVERSATION IN WHICH A VERY LUCID, CALM CONVERSATION WAS TAKING PLACE IN RESPONSE TO VERY PROBING QUESTIONS. IT WAS NOT SPONTANEOUS AT ALL. AND EVEN WITH RESPECT TO THOSE VERY DISCREET PARTS OF THE TRANSCRIPT THAT MIGHT BE LABELED SPONTANEOUS, THEY CONTAIN MANY EXPRESSIONS OF OPINION. AND WE CONTEND -- AND I'VE LOOKED AT GARCIA, AND I DON'T THINK GARCIA UNDERCUTS THIS POSITION AT ALL. IN FACT, WE RELY ON PEOPLE VERSUS MYRON, M-Y-R-O-N, A CASE THAT IS CITED IN OUR BRIEF FOR THE PROPOSITION THAT EVEN WITHIN THE CONTEXT OF SPONTANEOUS DECLARATIONS, THERE MAY BE EXPRESSIONS OF OPINION THAT ARE NOT ADMISSIBLE, THAT DO NOT COME WITHIN THE HEARSAY EXCEPTION. THE TASK FOR THE COURT IN LOOKING AT THAT IS I THINK WELL LAID OUT IN THE CASE OF PEOPLE VERSUS FARMER. AND IN FARMER, THE COURT INDICATED THAT THE CRUCIAL ELEMENTS IN DETERMINING WHETHER A DECLARATION IS SUFFICIENTLY RELIABLE TO BE ADMISSIBLE UNDER THAT EXCEPTION TO THE HEARSAY RULE IS NOT THE NATURE OF THE STATEMENT, BUT THE MENTAL STATE OF THE SPEAKER. AND THE REASON THAT THE COURT IN FARMER FOUND THAT A 911 TAPE WAS ADMISSIBLE AS A SPONTANEOUS STATEMENT WAS BECAUSE OF THE MENTAL STATE OF THE SPEAKER, WHO HAD JUST BEEN SHOT AND WAS EXPERIENCING SEVERE PAIN AT THE TIME HE WAS SPEAKING INTO THE TELEPHONE. AND THE COURT RECOGNIZED -- IT SAID:

"IT IS TRUE THAT WE HAVE RARELY HELD THE ANSWERS TO SUCH EXTENSIVE QUESTIONING TO BE SPONTANEOUS UTTERANCES. NONETHELESS, THERE IS NO DOUBT THAT THE DECLARANT HERE, SCHMIDT HILL, WAS EXCITED OR PERHAPS MORE ACCURATELY DISTRAUGHT AND IN SEVERE PAIN. HE WAS NOT MERELY AN UNINJURED PERSON WHOSE EXCITEMENT MIGHT WANE AND THUS BE IN A POSITION TO FABRICATE ANSWERS THROUGH THE SOBERING INTERROGATION OF AN INVESTIGATOR.

"WHILE HE WAS BEING QUESTIONED, THE INTENSE PAIN OF HIS GUNSHOT WOUNDS AND THE CONCERN HE RIGHTLY HAD ABOUT HIS SURVIVAL NO DOUBT PREOCCUPIED HIM SO HE COULD NOT HAVE CONTEMPLATED SPINNING A FALSE TALE." AND THAT'S VERY TELLING BECAUSE FROM THIS 911 CALL, WE DO HAVE AN UNINJURED WITNESS WHO HAS NOT BEEN PHYSICALLY ASSAULTED, WHOSE EXCITEMENT MIGHT WANE AND DOES WANE. AND WE BELIEVE THAT THE WANING IS VERY APPARENT IN A READING OF THE TRANSCRIPT OF THAT 911 CALL. NOW, THE OTHER HEARSAY -- AND AGAIN, IN OUR OPENING ARGUMENT, WE CHALLENGED THE PEOPLE TO SAY, WELL, COME UP WITH A PLAUSIBLE HEARSAY EXCEPTION UNDER WHICH ALL OF THESE STATEMENTS OF THE NICOLE -- OF THE VICTIM, NICOLE BROWN SIMPSON, TO OTHER THIRD PARTIES COULD COME IN AS AN EXCEPTION TO THE HEARSAY RULE. AND THE ONLY EXCEPTION THAT THEY COULD COME UP WITH -- AND IT'S CITED WITH RESPECT TO THE REMAINING HEARSAY THAT THEY STILL HAVE ON THE LIST, AND I'LL GO THROUGH THESE ITEMS VERY QUICKLY JUST TO RESTATE OUR OBJECTIONS. THE HEARSAY THAT IS STILL ON THIS LIST, THE ONLY LEGAL THEORY OFFERED BY THE PEOPLE IS SECTION 1250 OF THE CALIFORNIA EVIDENCE CODE. AND THEY'RE SAYING THAT 1250 ALLOWS STATEMENTS OF FEAR, OF STATE OF MIND TO SHOW THE DECLARANT'S STATE OF MIND OR TO EXPLAIN THE DECLARANT'S CONDUCT. THE ONLY PROBLEM WITH THAT IS THAT THE DECLARANT'S STATE OF MIND AND THE DECLARANT'S CONDUCT IS NOT IN ISSUE IN THIS CASE. THERE IS NOTHING TO PROVE WITH RESPECT TO THE STATE OF MIND OR THE CONDUCT OF NICOLE BROWN SIMPSON WITH RESPECT TO THE EVENTS THAT TOOK PLACE ON THE EVENING OF JUNE 12TH. THE ATTEMPTS TO COME UP WITH SUCH AN EXPLANATION -- AND I HAVE -- IF I COULD JUST HAVE A MOMENT.

HERE THEY ARE. IT WAS SUGGESTED, FIRST OF ALL, THAT THIS EVIDENCE MIGHT SHOW THAT THE VICTIM WAS TAKEN BY SURPRISE; THAT IF IN FACT SHE HAD A FEAR OF MR. SIMPSON, SHE WOULD NOT HAVE GONE OUTSIDE IF SHE KNEW THE DEFENDANT WAS OUT THERE. AND OF COURSE, THAT ASSUMES THAT THE DEFENDANT WAS OUT THERE. THERE'S NOT GOING TO BE ANY DISPUTE ABOUT THAT. THERE'S NOT GOING TO BE ANY CONTENTS IN THIS CASE THAT THESE TWO VICTIMS WERE NOT TAKEN BY SURPRISE. WE BELIEVE THEY WERE. THEY WERE TAKEN BY SURPRISE BY THE PERSONS WHO COMMITTED THIS MURDER. THERE'S NO EXPLANATION NECESSARY TO SHOW WHY THERE WOULD BE ANY DEGREE OF CAUTION ON THE PART OF THE VICTIM THAT WOULD ARISE IN THE CONTEXT OF THESE PRIOR HEARSAY STATEMENTS. AND THE OTHER THEORY IS THAT THIS EXPLAINS ESTRANGEMENT; HER CONDUCT IN DISTANCING HERSELF SOMEHOW MOTIVATED THE MURDER, THAT THESE HEARSAY STATEMENTS WILL SHOW THAT NICOLE BROWN SIMPSON WANTED TO DISENGAGE FROM MR. SIMPSON AND THAT SUPPLIES THE MOTIVE FOR HIM MURDERING HER. YOU KNOW, THAT'S A PLAUSIBLE THEORY IF MR. SIMPSON KNEW IT, BECAUSE THE STATE OF MIND THAT WE'RE TALKING ABOUT PROVING AND THAT'S RELEVANT IN THIS CASE IN TERMS OF HIS MOTIVE FOR A MURDER ONLY ARISES IF HE KNEW IN FACT THAT THESE STATEMENTS WERE MADE, IF THESE STATEMENTS WERE MADE TO HIM OR THEY WERE COMMUNICATED TO HIM SOMEHOW. SO THE FACT THAT MRS. SIMPSON MAKES A CALL, FOR EXAMPLE, TO A BATTERED WOMAN'S SHELTER BEING OFFERED TO SHOW HER ESTRANGEMENT FROM HER HUSBAND AND HER ATTEMPT TO SEPARATE HERSELF FROM HIM PROVES ABSOLUTELY NOTHING IN TERMS OF HIS STATE OF MIND IF HE DIDN'T KNOW THAT CALL WAS EVER MADE. THE ISSUE IN THIS CASE IS NOT MS. SIMPSON'S STATE OF MIND, BUT MR. SIMPSON'S STATE OF MIND, WHAT HE KNEW IN TERMS OF ANY MOTIVE OF ESTRANGEMENT. WHAT I FIND REMARKABLE IS THAT THE ONLY EXCEPTION SEIZED UPON BY THE PEOPLE TO JUSTIFY THE ADMISSION OF THESE HEARSAY STATEMENTS IS SECTION 1250(T) OF THE EVIDENCE CODE, AND SECTION 1250 OF THE EVIDENCE CODE IS THE SAME EXCEPTION THAT WAS RELIED UPON IN IRELAND AND IN ARCEGA. I DON'T THINK WE COULD HAVE -- I MEAN THIS IS AN UNUSUAL POSITION FOR A DEFENSE POSITION TO HAVE, TO HAVE TWO RULINGS FROM THE CALIFORNIA SUPREME COURT ON ALL FOURS DIRECTLY IN HIS OR HER FAVOR. SO I GUESS I WANT TO GLORY IN IT. I WANT TO REALLY RACK MYSELF UP IN THESE CASES BECAUSE THEY ARE PRECISELY ON POINT. THEY DEAL WITH PRECISELY THE SAME THEORY, THE SAME EXCEPTION. AND IN BOTH CASES, THE COURT SAID:

"IT IS REVERSIBLE ERROR TO ENTER INTO EVIDENCE HEARSAY STATEMENTS OF THE VICTIM EXPRESSING FEAR OF THE DEFENDANT ACCUSED OF THE VICTIM'S MURDER ON THE VERY DAY THAT THE VICTIM WAS MURDERED." YOU COULDN'T HAVE A STRONGER MORE TELLING STATEMENT OF A LEGAL PRINCIPAL THAN WE HAVE IN IRELAND AND ARCEGA, AND THAT SHOULD BE DETERMINATIVE OF THE ISSUE; THAT THIS HEARSAY WILL NOT BE ADMISSIBLE SIMPLY BECAUSE THE STATE OF MIND AND THE CONDUCT OF THE VICTIM IS NOT GOING TO BE AN ISSUE IN THIS CASE. NOW, TO CONCLUDE, WHAT I WOULD LIKE TO DO IS JUST TAKE A BRIEF MOMENT TO QUICKLY GO THROUGH THE APPRECIATED LIST THAT WE ARE NOW LEFT WITH AND EXPRESS FOR THE COURT THE GROUNDS OF THE DEFENDANT'S OBJECTIONS TO THE ADMISSION OF THESE REMAINING ITEMS. ITEM NUMBER 3, WE OBJECT TO ITS ADMISSION ON THE GROUND THAT IT IS HEARSAY. MR. HUGHES' EXPLANATION OF THIS RED SPOT IS SIMPLY RESTATING THE EXPLANATION THAT HE GOT FROM NICOLE BROWN SIMPSON. AND THERE IS NO FOUNDATIONAL SHOWING OF ANY EXCITED UTTERANCE IN THE COURSE OF THIS CONVERSATION BETWEEN MS. SIMPSON AND MR. HUGHES. AND WE ALSO OBJECT ON THE GROUNDS THAT IT IS IRRELEVANT UNDER SECTION 1101 AND THAT ITS PREJUDICIAL IMPACT WOULD OUTWEIGH ITS PROBATIVE VALUE UNDER SECTION 352. ITEM NUMBER 7, WE OBJECT VERY STRONGLY ON THE GROUNDS OF 1101 ON THE GROUND THAT THERE IS NO SIMILARITY. THERE IS NO SIMILARITY BETWEEN THE FACTS OF THIS INCIDENT AND THE MURDER THAT TOOK PLACE JUNE 12TH, 1994, AND ALSO ON GROUNDS OF 352, THAT ITS PROBATIVE VALUE IS OUTWEIGHED BY ITS PREJUDICIAL IMPACT. ITEM NUMBER 8, WE WILL RAISE INITIALLY A 403 OBJECTION PRELIMINARILY TO THE ADMISSION OF THIS EVIDENCE BECAUSE WE WILL CONTEND THAT THERE IS NO EVIDENCE TO ESTABLISH THE DEFENDANT WAS RESPONSIBLE FOR ANY OF THE CONDUCT BEING DESCRIBED; THAT IS THE BREAKING OF PICTURE FRAMES. THE MAID SIMPLY DESCRIBES ENTERING THE HOME AND FINDING BROKEN PICTURE FRAMES WITHOUT ANY INDICATION OF WHO BROKE THEM. SO UNTIL THAT'S ESTABLISHED, WE HAVE A 403 OBJECTION. IF IT IS ESTABLISHED THAT MR. SIMPSON DID IT, WE WOULD CONTEND IT'S IRRELEVANT UNDER 1101, NO SIMILARITY. IT DOESN'T PROVE ANY FACT OR ISSUE IN THIS CASE, AND WE ALSO OBJECT ON GROUNDS OF 352. ITEM NUMBER 9, THE DAMAGE TO THE MERCEDES AUTOMOBILE, AN INTERESTING CONTENTION HERE BECAUSE WE INDICATE THAT THE EVIDENCE OF THIS WOULD COME FROM DETECTIVE FUHRMAN, WHO MADE NO CONTEMPORANEOUS ACCOUNT OF THE INCIDENT, BUT ONLY WROTE IT UP IN A LETTER FOUR YEARS LATER. AND THE PROSECUTORIAL RESPONSE WAS, "WELL, WE DON'T JUST HAVE DETECTIVE FUHRMAN. WE HAVE A LOS ANGELES POLICE SERGEANT WHO FORMERLY WORKED FOR WESTEC SECURITY WHO ALSO WILL GIVE AN ACCOUNT OF THIS INCIDENT." AND WHEN WE LOOKED THROUGH THE DISCOVERY -- AND I BELIEVE MARK DAY IS HIS NAME -- AT THE STATEMENT FOR MR. DAY, WE DISCOVERED THAT MR. DAY'S STATEMENT WAS DATED 1994. THAT IS, MR. DAY WAS SIMPLY RECOUNTING FROM MEMORY AFTER HE SPOKE TO MR. FUHRMAN OF WHAT HAD HAPPENED NINE YEARS BEFORE WHEN HE WAS WORKING AS A WESTEC SECURITY GUARD. AND WE BELIEVE THE EVIDENCE WILL ESTABLISH SUBSTANTIAL CONTRADICTIONS BETWEEN THE VERSION OF THIS EVENT PRESENTED BY DETECTIVE FUHRMAN AND THE VERSION OF THIS EVENT PRESENTED BY SERGEANT DAY. SO ON THAT GROUND, WE WILL ASK FOR A 403 DETERMINATION AS TO WHAT ACTUALLY HAPPENED BEFORE THE COURT ADMITS THE EVIDENCE, AND WE WILL OBJECT BOTH ON GROUNDS OF 1101, RELEVANCY, AND 352. THE BICYCLE INCIDENT, ITEM NUMBER 10, ALSO PRESENTS A SUBSTANTIAL 403 PRELIMINARY QUESTION BECAUSE THIS INCIDENT OF COURSE IS NOT GOING TO BE ADMISSIBLE UNLESS WE HAVE SOME EVIDENCE OF HOW THE INJURIES OCCURRED. AND SIMPLY BRINGING IN A PHYSICIAN WHO SAYS, "WELL, I'M NOT SO SURE THAT I WAS BEING TOLD THE TRUTH WITH RESPECT TO THIS INJURY OCCURRING" -- AND FALLING OFF A BICYCLE DOESN'T GET US VERY FAR IN TERMS OF EXPLAINING HOW THE INJURIES DID OCCUR -- THE INJURIES ARE TOTALLY IRRELEVANT UNLESS THEY WERE THE RESULT OF SOME SORT OF ASSAULTIVE BEHAVIOR BY MR. SIMPSON AND THAT BEHAVIOR HAS SOME SORT OF SIMILARITY TO THE BEHAVIOR INVOLVED IN THIS MURDER ON JUNE 12TH. SO WE'LL OBJECT IN TERMS OF 403 THAT THERE'S NO PRELIMINARY SHOWING THAT IT'S EVEN RELATED TO MR. SIMPSON, AND IF THAT OBSTACLE IS OVERCOME, ON THE GROUNDS OF BOTH 1101 AND 352. THE "DISNEY ON ICE" INCIDENT WE WILL OBJECT ON GROUNDS OF 1101 AND 352. THE INCIDENT BEARS NO SIMILARITY TO ANYTHING THAT HAPPENED WITH RESPECT TO THE COMMISSION OF THIS MURDER, AND THERE IS SUBSTANTIAL DANGER OF PREJUDICE OUTWEIGHING ITS PROBATIVE VALUE. ITEM NUMBER 13 OF COURSE IS THE JANUARY 1ST, 1989 INCIDENT THAT RESULTED IN A NO CONTEST PLEA IN A CRIMINAL PROCEEDING. SO THE OBJECTION HERE WILL BE THREEFOLD. FIRST OF ALL, UNDER 1101, THE LACK OF SIMILARITY OF THIS INCIDENT TO ANYTHING THAT HAPPENED JUNE 12TH MAKES IT IRRELEVANT. UNDER 352, ITS PROBATIVE VALUE IS FAR OUTWEIGHED BY ITS PREJUDICIAL IMPACT. AND THEN SEPARATELY, WE OBJECT ON THE GROUNDS OF HEARSAY TO THE USE OF THE 911 TAPE TO CORROBORATE THAT INCIDENT. THERE WILL BE NO OBJECTION TO THE LETTER IN WHICH THE DEFENDANT AGREES TO VOID THE PRENUPTIAL AGREEMENT. OH, NUMBER 11. I NEED TO GO BACK. NUMBER 11 IS THE INCIDENT REFERRED TO AS HUMILIATION OF MRS. SIMPSON BY MR. SIMPSON'S EXPRESSIONS OF OUTRAGE THAT A GAY MAN HAD KISSED ONE OF THEIR CHILDREN. THERE'S GOING TO BE A 403 HEARING NECESSARY IF THIS INCIDENT IS OFFERED BECAUSE WE BELIEVE THE EVIDENCE WILL SHOW A VERY DIFFERENT FACTUAL SCENARIO; THAT IN FACT MR. SIMPSON'S OUTRAGE WAS ENGENDERED BY A STATEMENT BY NICOLE BROWN SIMPSON CALLING MR. SIMPSON'S FATHER A FAG, KIND OF A REVERSE HUMILIATION. I THINK IT'S WORTH NOTING THAT ALL OF THE HUMILIATION IN THIS RELATIONSHIP WAS NOT A ONE-WAY STREET. AND WITH RESPECT TO THIS INCIDENT IN PARTICULAR, THERE IS A SUBSTANTIAL VARIANCE IN THE EVIDENCE AS TO HOW IT HAPPENED AND WHAT ITS SIGNIFICANCE ACTUALLY IS. ONCE WE GET PAST THAT, WE WOULD CONTEND OF COURSE THAT IT BEARS NO SIMILARITY WHATSOEVER TO ANYTHING THAT HAPPENED IN 1994 AND ITS PREJUDICIAL IMPACT WOULD FAR OUTWEIGH ITS PROBATIVE VALUE. ITEM NO. 16, WE HAVE A VERY SIMPLE LETTER SAYING -- THERE'S AN OBJECTION TO THAT. THE ONLY EXCEPTION RELIED UPON IS 1250, AND WE WOULD ANSWER THAT BY SAYING THE STATE OF MIND OR THE CONDUCT OF NICOLE BROWN SIMPSON IS SIMPLY NOT GOING TO BE AN ISSUE WITH RESPECT TO THIS STATEMENT OR ANY STATEMENT MADE BY MS. SIMPSON. ITEM NUMBER 17, WE'RE IN A DIFFICULT POSITION BECAUSE WE DON'T HAVE ANY DATES TO WHICH THIS INCIDENT OCCURRED WITHIN AN ENTIRE TWO-YEAR SPREAD. WE'RE SIMPLY TOLD THIS HAPPENED SOMETIME IN 1988 OR 1989. THE DATE BECOMES VERY SIGNIFICANT, YOUR HONOR, BECAUSE JANUARY 1ST, 1989 WAS THE INCIDENT LEADING TO THE AGREEMENT THAT THE PRENUPTIAL AGREEMENT WOULD BE VOIDED IF THERE WAS ANY ACTIVE PHYSICAL ASSAULT. AND HERE WE HAVE A WITNESS THAT SAID, "I SAW AN ACTIVE PHYSICAL ASSAULT. I SAW MR. SIMPSON BACK-HAND HIS WIFE IN THE BACK OF A LIMOUSINE EITHER IN 1988 OR 1989." WE HAVE NO IDEA WHEN THIS OCCURRED. AND UNTIL THE PEOPLE CAN SPECIFY WITH SOME DEGREE OF CERTAINTY WHEN THIS HAPPENED, SOME OF THE CIRCUMSTANCES BY WHICH THIS MIGHT BE RECONSTRUCTED, WE BELIEVE THE DEFENDANT WOULD BE SIGNIFICANTLY PREJUDICED BY HAVING TO ANSWER TO A CHARGE LIKE THIS AS A CHARGE OF RELATED CONDUCT THAT HE HAS TO EXPLAIN SOMEHOW IN THE COURSE OF THIS TRIAL. ASSUMING WE GET OVER THAT OBSTACLE, OF COURSE WE STILL RESERVE ON 1101 AND A 352 OBJECTION ON THE GROUNDS THAT THIS BEARS NO SIMILARITY. THERE IS NO EXPLANATION OF THE CIRCUMSTANCES FROM WHICH THIS CAN EVEN BE TIED TO ANY EVENTS TAKING PLACE ON JUNE 12TH, 1994. THE RED ONION INCIDENT, NUMBER 18, AGAIN, WE HAVE AN 1101 AND A 352 OBJECTION ON THE GROUNDS THAT THERE IS NO SIMILARITY. ITEM 21, THERE WON'T BE ANY CONTENTION ABOUT THE FILING OF THE DIVORCE. ITEM 22, THE MEZZALUNA INCIDENT AND ITEM 23, THE TRYST INCIDENT, BOTH ALLEGES CIRCUMSTANCES WHERE MR. SIMPSON IS OBSERVED IN A RESTAURANT AT THE SAME TIME THAT MRS. SIMPSON IS. AND IN ONE CASE, IT IS ALLEGED HE STARED AT THE PEOPLE SHE WAS WITH, AND IN ANOTHER INCIDENT, HAD A CONVERSATION WITH THOSE PEOPLE. NOW, THE RELEVANCE OF THIS THE PEOPLE ARGUE IS THAT IT'S GOING TO SHOW STALKING. AND AT THIS POINT, I THINK IT'S WORTH THE COURT NOTING THAT STALKING IS A LEGAL TERM THAT HAS A LEGAL DEFINITION. THE CALIFORNIA PENAL CODE, SECTION 646.9 DEFINES STALKING TO ENCOMPASS ANY PERSON WILLFULLY, MALICIOUSLY AND REPEATEDLY FOLLOWING OR HARASSING ANOTHER PERSON. NOW, WE WILL IMPOSE A SIGNIFICANT AND SUBSTANTIAL 403 OBJECTION TO THE JURY HEARING ANY OF THIS EVIDENCE UNTIL IT IS ESTABLISHED THAT WHAT IS ACTUALLY GOING ON IS STALKING. IT'S IRRELEVANT THAT MR. SIMPSON AND HIS WIFE OR HIS FORMER WIFE HAPPENED TO FREQUENT THE SAME RESTAURANTS. IN FACT, THERE'S A VERY REASONABLE EXPLANATION FOR THAT. IF IN THE COURSE OF A 17-YEAR RELATIONSHIP PEOPLE HAVE A NUMBER OF FAVORITE RESTAURANTS, JUST THE FACT THAT THEY GET DIVORCED DOESN'T MEAN THAT ONE OF THEM HAS TO STOP GOING TO THEIR FAVORITE RESTAURANT. AND IT SHOULDN'T SURPRISE US AT ALL THAT THESE TWO PEOPLE HAPPENED TO ON OCCASION FIND THEMSELVES IN THE SAME RESTAURANT. AND SIMPLY TO INFER FROM THAT FACT ALONE, WHICH IS WHAT'S GOING ON HERE, THAT THAT'S SOME SORT OF STALKING ACTIVITY IS NOT AN INFERENCE THAT CAN BE JUSTIFIED BY THE EVIDENCE. SO WE'LL OBJECT NOT ONLY ON 403 GROUNDS, THAT THIS IS NOT STALKING ACTIVITY, BUT ON GROUNDS OF 1101 AND 352 AS WELL, THAT THIS ACTIVITY BEARS NO RELATIONSHIP OR NO SIMILARITY TO WHAT HAPPENED ON JUNE 12TH. THE ENDING OF THE RELATIONSHIP WITH MR. ZLOMSOWITCH IS RELEVANT ONLY IF THE RELATIONSHIP WITH MR. ZLOMSOWITCH BECOMES EVIDENCE IN THE FIRST PLACE. AND WITH RESPECT TO THAT INCIDENT, WE HAVE ARGUED THAT THE INFERENCE THEY WANT TO DRAW FROM IT IS JUST COUNTER TO WHAT ACTUALLY HAPPENED. I MEAN THE FACT THAT MR. SIMPSON DIDN'T BARGE IN, DIDN'T INTERRUPT THEM, DID NOT CONFRONT THEM IN AN ANGRY MANNER SIMPLY UNDERCUTS ANY SUGGESTION THAT THIS IS A PRIOR SYMBOL OR INCIDENT THAT EXPLAINS WHAT HAPPENED ON THE NIGHT OF JUNE 12TH, 1994. IN FACT, IT MAKES THE SCENARIO THAT THE PEOPLE WANT TO PRESENT OF WHAT HAPPENED ON JUNE 12TH LESS LIKELY RATHER THAN MORE LIKELY. WITH RESPECT TO ITEM 27 -- AND THERE'S A RELATED ITEM, NUMBER 41. THESE ARE BOTH STATEMENTS ALLEGEDLY MADE BY MR. SIMPSON TO MRS. SIMPSON'S MOTHER, JUDITHA BROWN, REGARDING THE RELATIONSHIP BETWEEN HE AND HER DAUGHTER. AND I ASK THE COURT IN BOTH OF THESE INSTANCES TO LOOK AT THE PRECISE LANGUAGE PROFFERED BY THE PEOPLE OF WHAT WAS SAID. IN ITEM NUMBER 27, WHAT WAS SAID WAS, "PEOPLE SAY I SHOULD STAY AWAY FROM HER, BUT I CAN'T. I LOVE HER. I LOVE HER. PEOPLE TELL ME TO LET HER GO, AND I CAN'T LET HER GO." NOW, WHEN WE ASK, WELL, WHAT'S THE RELEVANCE OF THAT OTHER THAN SHOWING THAT IN THE COURSE OF A DIVORCE, MR. SIMPSON STILL LOVED HIS WIFE, THE RELEVANCE THE PEOPLE ASSERT IS TO CITE THIS CASE OF DE MOSS, PEOPLE VERSUS DE MOSS, IN WHICH THE STATEMENT ALLEGED WAS, "IF I CAN'T HAVE HER, NOBODY CAN." THAT'S A THREAT. SAYING, "I LOVE HER. I CAN'T LET HER GO," IS NOT A THREAT, AND WE WOULD CONTEND THAT THESE STATEMENTS HAVE NO RELEVANCE IF THEY CANNOT BE CHARACTERIZED AS THREATS. ITEM NUMBER 41 -- EXCUSE ME.

THE STATEMENT INVOLVED IN ITEM NUMBER 27 WAS IN 1992 DURING THE PENDENCY OF THE DIVORCE. IT WASN'T EVEN CLOSE IN PROXIMITY TO THE EVENTS OF JUNE 12TH, 1994. SO IT WOULDN'T EVEN SHOW A STATE OF MIND THAT WOULD BE IN EXISTENCE TWO YEARS LATER. SO TO THAT EXTENT, IT IS IRRELEVANT, AND ITS PREJUDICIAL IMPACT OUTWEIGHS ITS PROBATIVE VALUE. AND THE SAME THING IS TRUE OF ITEM 41, EVEN THOUGH THIS IS CLOSER IN PROXIMITY. THIS IS MARCH OF 1994. THE STATEMENT IS, "THE ONLY WOMAN I WANT IN MY LIFE AND I CAN'T HAVE IS YOUR DAUGHTER." THAT'S NOT A THREAT AND IT BEARS NO RESEMBLANCE TO THE DE MOSS STATEMENT CITED AS AUTHORITY, "IF I CAN'T HAVE HER, NOBODY ELSE WILL." SO WE OBJECT SIMPLY ON GROUNDS OF IRRELEVANCE AND ON GROUNDS OF 352 AS WELL.

MADAM REPORTER, DO WE NEED TO CHANGE REPORTERS?

NO. I'M FINE.

MR. UELMEN.

ITEM 28 IS NOT -- AN ATTEMPT -- SIMPLY THAT THERE WAS AN ATTEMPT AT RECONCILIATION, AND I DON'T THINK THERE'S GOING TO BE DISPUTE ABOUT THAT. NUMBER 29, THE CALIFORNIA SUSHI, WE OBJECT FIRST OF ALL ON GROUNDS OF WHAT ACTUALLY HAPPENED REQUIRING A 403 HEARING, SECTION 1101, A LACK OF SIMILARITY, AND SECTION 352, THE PREJUDICIAL IMPACT OUTWEIGHING THE PROBATIVE VALUE. ITEM 30, THE SAME OBJECTIONS. ITEM 31, ITEM 32, AGAIN, LABELING THESE AS STALKING WILL REQUIRE A PRELIMINARY DETERMINATION BY THE COURT THAT THIS IS IN FACT WHAT WAS GOING ON, THAT MR. SIMPSON DID NOT HAVE A LEGITIMATE REASON TO BE VISITING THE PREMISES. ONLY AFTER THAT HAS BEEN DETERMINED WOULD THESE THEN BE ADMISSIBLE. BUT WE WOULD MAINTAIN THEY SHOULD BE EXCLUDED UNDER 1101 BECAUSE THEY BEAR NO SIMILARITY TO WHAT HAPPENED ON JUNE 12, 1994, AND ON THE GROUNDS OF 352. ITEMS 33 AND 34, AGAIN, WE RESTATE OUR HEARSAY OBJECTION. THE ONLY EXCEPTION ASSERTED IS 1250 OF THE EVIDENCE CODE. AND AGAIN, WE RESPOND, THE STATE OF MIND OR THE CONDUCT OF THE DECLARANT OF THESE HEARSAY STATEMENTS OF NICOLE BROWN SIMPSON WILL NOT BE AN ISSUE IN THESE PROCEEDINGS. THAT BRINGS US TO THE 911 INCIDENT IN OCTOBER OF 1993. AND HERE WE HAVE ANOTHER 911 TAPE. AND I'VE ALREADY ADDRESSED THE PROBLEM THAT THE COURT WILL HAVE IN RULING ON OUR HEARSAY OBJECTION. AND AT SOME POINT, IT MAY BE THAT THE COURT WILL WANT TO PROPOSE SOME SORT OF REDACTION OF THE TRANSCRIPT OF THIS TAPE AND SUGGEST THAT PARTS OF IT MAY BE PRESENTED TO THE JURY IN A WRITTEN FORM WITHOUT ACTUALLY PLAYING THE TAPE. BUT EVEN GETTING PAST THE HEARSAY PROBLEM WITH THE 911 TAPE DOES NOT DISPOSE OF THE 1101 PROBLEM, OF WHETHER THIS INCIDENT BEARS ANY SIMILARLY WHATSOEVER TO WHAT HAPPENED ON JUNE 12. THE FACT THAT THE PARTIES HAVE AN ARGUMENT ABOUT WHOSE PICTURES ARE IN THE FAMILY ALBUM AND THAT ARGUMENT RESULTS IN A BROKEN DOOR SIMPLY DOESN'T PROVIDE ANY EVIDENCE OF PROBATIVE VALUE TO EXPLAIN THE INTENT OR THE MOTIVE OR THE IDENTITY OF THE PERPETRATOR OF THE JUNE 12TH INCIDENT. AND AGAIN, I UNDERLINE THAT IDENTITY IS THE REAL ISSUE IN CONTENTION HERE. THERE ARE NO SIGNATURE FACTS HERE THAT WOULD JUSTIFY USING THIS TO PROVE THE IDENTITY OF THE PERPETRATOR OF THE MURDER ON JUNE 12TH. ITEM 38, THE FACT THAT MISS SIMPSON MOVED TO THE BUNDY ADDRESS, THERE WILL BE NO ARGUMENT ABOUT THAT. ITEM 40, WE ASSERT A HEARSAY EXCEPTION, AGAIN, 1250, THE ONLY EXCEPTION RELIED UPON. THIS IS SIMPLY A STATEMENT BY THE VICTIM WHICH CANNOT BE CROSS-EXAMINED, AND HER STATE OF MIND AND CONDUCT AT THE TIME THIS STATEMENT WAS MADE IS TOTALLY IRRELEVANT TO ANY ISSUES IN THIS CASE. ITEM 41 I HAVE ALSO ADDRESSED. ITEM 42, WE'LL RAISE A SUBSTANTIAL 403 QUESTION IN TERMS OF WHETHER THESE STATEMENTS WERE ACTUALLY MADE. AND IF THEY WERE MADE, THEIR RELEVANCY REMAINS IN QUESTION, AND WE WILL OBJECT TO THEM AS IRRELEVANT. ITEM 47, SIMPLY THE FACT THAT THERE WAS AN ATTEMPT AT RECONCILIATION WILL NOT BE CONTESTED IN THIS CASE. ITEM 48, AGAIN, WE OBJECT ON THE GROUNDS OF HEARSAY. WE BELIEVE THE ONLY EVIDENCE THAT CAN BE PRESENTED OF THIS TRANSACTION IS A STATEMENT OF NICOLE BROWN SIMPSON, WHICH CANNOT BE CROSS-EXAMINED AND THERE'S NO HEARSAY OBJECTION EVEN ASSERTED HERE. THE IRS LETTER, AGAIN, WE SIMPLY OBJECT TO THAT AS IRRELEVANT. IT DOES NOT EXPLAIN ANY CONDUCT IN THIS CASE. AND WE INVITE THE COURT TO LOOK AT THAT LETTER AND SEE THAT IT DOES NOT CONTAIN ANY THREATS OR ANY ATTEMPT TO COERCE MRS. SIMPSON. ITEMS 52 AND 53, AGAIN, SIMPLE HEARSAY OBJECTIONS, AGAIN 1250 BEING THE ONLY EXCEPTION RELIED UPON AND, AGAIN, THE STATE OF MIND AND THE CONDUCT OF THE VICTIM WILL NOT BE IN QUESTION. THE DANCE RECITAL, THERE WON'T BE ANY ISSUE ABOUT THAT. AS TO THE MURDER ITSELF, THE ONLY ISSUE AS I MENTIONED WILL BE THE ISSUE OF IDENTITY OF WHO DID IT. THE ASHTON STREET INCIDENT THAT WAS ADDED, WE HAVE A 403 OBJECTION AS TO WHAT, IF ANYTHING, THIS PROVES IF THE WITNESSES ARE NOT ABLE TO IDENTIFY THIS AS AN ACTUAL ALTERCATION BETWEEN MR. SIMPSON AND HIS WIFE SINCE THEY ARE SIMPLY RELYING ON WHAT THEY HEARD THROUGH A BEDROOM WALL. WE HAVE A 403 PROBLEM EVEN BEFORE WE GET TO THE 1101 EXCEPTION, AND WE WILL OBJECT ON THE GROUNDS THAT THERE IS NO SIMILARITY UNDER 1101. AND THE 352 OBJECTION HERE I THINK IS PARTICULARLY STRONG BECAUSE OF THE REMOTENESS OF THIS INCIDENT. WE ARE TALKING HERE ABOUT AN INCIDENT THAT IS 17 YEARS OLD. THE VICTORIA BEACH INCIDENT, AGAIN, THE 403 ISSUE OF WHETHER THIS WITNESS CAN ACTUALLY IDENTIFY THE PARTICIPANTS IN THIS TRANSACTION NINE YEARS AFTER IT HAPPENED WILL BE IN ISSUE. AND ASSUMING WE GET OVER THAT, WE WILL RAISE AN 1101 OBJECTION AND A 352 OBJECTION. AND THEN FINALLY, WITH RESPECT TO THE SOJOURN CONTACT, WE HAVE A HEARSAY OBJECTION AND CONTEND THAT THE ONLY EXCEPTION RELIED UPON 1250 GETS US NOWHERE BECAUSE THE STATE OF MIND AND THE CONDUCT OF THE VICTIM ARE NOT GOING TO BE IN ISSUE. I WOULD JUST LIKE TO CONFER WITH COUNSEL.

CERTAINLY.

I WOULD JUST LIKE TO CONCLUDE WITH WHERE I BEGAN; AND THAT IS THE INSISTENCE OF MR. SIMPSON'S RIGHT TO BE TRIED FOR WHAT HE DID RATHER THAN FOR WHO HE IS. THAT'S GOING TO BE PARTICULARLY SIGNIFICANT IN THE CONTEXT OF A CASE WHERE WHO DID IT IS REALLY THE ONLY ISSUE TO BE LITIGATED. THIS IS NOT A CLASSIC CASE OF THE BATTERED WIFE SYNDROME. THIS IS A CLASSIC CASE OF WHO DONE IT, AND WE WILL CONTEND THAT THIS MURDER WAS DONE BY PARTIES OTHER THAN MR. SIMPSON, AND THAT IS THE ONLY ISSUE WE'RE GOING TO LITIGATE, AND ALL OF THE QUESTIONS OF PREJUDICE TO MR. SIMPSON MUST BE EVALUATED WITH THAT THOUGHT IN MIND.

ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. GIVEN THE NUMBER OF ISSUES THAT HAVE BEEN PRESENTED TO THE COURT, SEVERAL DISTINCT ISSUES, ARGUMENT, OBJECTIONS, ET CETERA, ET CETERA, I DON'T FEEL PREPARED TO RULE ON THE MOTION AT THIS TIME. AND I'VE INDICATED THAT I WILL LIKELY -- MY INCLINATION TOMORROW IS TO TAKE UP THE MOTION TO QUASH THE SUBPOENA FOR MARGUERITE SIMPSON AND TO TAKE UP THE ARGUMENT ON THE FUHRMAN MOTION. AND MY INCLINATION AND INTENT IS TO ISSUE A WRITTEN RULING AS TO EACH OF THESE 60 ODD INCIDENTS TUESDAY MORNING, JANUARY 17TH, OR AT THE LATEST, THE 18TH.

YOUR HONOR, GIVEN SOME OF THE COMMENTS THAT MR. UELMEN MADE, MAY WE RESERVE ABOUT 10 MINUTES TOMORROW MORNING TO RESPOND?

WELL, IT'S A MOTION --

WE'RE THE MOVING PARTY.

I UNDERSTAND. WE'RE THE PROPONENTS OF THE EVIDENCE. WE WOULD LIKE TO TAKE A FEW MINUTES -- THIS IS VERY, VERY IMPORTANT EVIDENCE. WE WOULD JUST LIKE TO TAKE A FEW MINUTES OF THE COURT'S TIME IN THE MORNING TO RESPOND.

MAY I JUST BE HEARD? WE HAD THIS DISCUSSION EARLIER. WE ARE THE MOVING PARTY AND WE FILED THE MOTION. WE DIDN'T INTERRUPT THEM AT ALL. WE LET THEM FINISH ALL THEIR PRESENTATION, AND NOW WE HAVE CONCLUDED. AND IF THEY DO THAT, THEN I'M SURE THERE WILL BE SOME THINGS WE WANT TO SAY. I THINK THE COURT HAS HEARD ENOUGH OVER THE COURSE -- AND YOU'VE BEEN VERY PATIENT -- OVER THE LAST COUPLE OF DAYS.

WE'RE THE PROPONENTS OF THIS EVIDENCE. THIS IS EXTREMELY IMPORTANT. AS THE COURT INDICATED, THIS IS A VERY COMPLEX ISSUE TO YOU, AND THERE'S SOME INFORMATION WE WOULD LIKE TO GIVE THE COURT, RESPOND TO. IT'S VERY IMPORTANT. WE WOULD JUST LIKE TO --

CAN YOU GIVE ME SOME INFORMATION, WHAT KIND OF INFORMATION ARE WE TALKING ABOUT?

WE HAVE SOME SHORT RESPONSE TO THIS.

YOUR HONOR, WE'RE THE PROPONENTS OF THE EVIDENCE. WE ALSO BEAR THE BURDEN ON THIS. AND I THINK THAT ENTITLES US TO SOME REBUTTAL TO WHAT THE DEFENDANT HAS PRESENTED. WE DON'T WANT TO PRESENT NEW EVIDENCE, BUT WE WOULD LIKE TO COMMENT BRIEFLY UPON SOME OF THE ARGUMENTS THAT MR. UELMEN HAS MADE. AND BECAUSE WE DO BEAR THE BURDEN, I BELIEVE WE ALSO, WITH THAT BURDEN, HAVE A RIGHT TO DO THAT. AND I WOULD ASK THE COURT TO GIVE US A MOMENT, BUT I CERTAINLY WOULD DEFER TO WHATEVER THE COURT WANTS TO DO. BUT SPECIFICALLY --

ANYTHING THAT'S NOT COVERED IN THE POINTS AND AUTHORITIES THAT YOU'VE SUBMITTED? ANYTHING THAT'S NOT INCLUDED IN THE CASE LAW?

THERE ARE A COUPLE OF FACTUAL REPRESENTATIONS THAT WERE MADE BY MR. UELMEN THAT ARE FRANKLY NOT TRUE, PARTICULARLY WITH REGARD TO A DEPOSITION. AND I WOULD LIKE TO CITE THE COURT TO THAT. I COULD BRIEFLY DO THAT. IT IS 10 MINUTES BEFORE 5:00. WOULD THE COURT LIKE ME TO DO IT RIGHT NOW?

WELL, HERE'S PART OF THE PROBLEM. THIS TYPE OF MOTION IS NORMALLY DONE ON OFFERS OF PROOF. AND EACH SIDE HAS CONTROL OVER THE RECORD THAT THEY CREATE. AND THAT DEPOSITION IS NOT BEFORE ME. NOBODY HAS CHOSEN TO OFFER IT TO ME. NOW, I AGREED THAT I WAS WILLING TO ACCEPT FROM THE PROSECUTION A NOTEBOOK CATALOGING THE REPORTS, ET CETERA, ET CETERA, SO THAT I HAVE A FACTUAL BACKGROUND SO I CAN MAKE MY RULINGS AS TO EACH ONE OF THESE INCIDENTS. I ASSUME THAT WILL INCLUDE THE DEPOSITION. SO DO WE NEED TO ARGUE ANYTHING MORE ABOUT THIS?

THE COURT MAKES AN EXCELLENT POINT. THE FINAL POINT I WISH TO MAKE IS THIS.

THIS HAS TO DO WITH YOUR ABILITY TO REOPEN YOUR ARGUMENT.

ALL RIGHT, YOUR HONOR. GIVEN THAT, IN OUR ABILITY TO GIVE THE COURT EVIDENCE IN A NOTEBOOK THAT THE COURT HAS REQUESTED, I WILL DEFER TO THE COURT'S JUDGMENT. WITH REGARD TO NOT GIVING REBUTTAL, IT WOULD HAVE BEEN SHORT IN ANY CASE. AND FRANKLY, THE FACTS IN THIS CASE, AT LEAST FROM THIS MOTION, SPEAK FOR THEMSELVES. I DO HAVE ONE OTHER ISSUE I WOULD LIKE TO BRING UP RELEVANT TO SOME COMMENTS MR. UELMEN MADE GOING TO DISCOVERY. MAY I BRIEFLY MAKE THOSE COMMENTS?

WITH REGARD TO DISCOVERY ISSUES.

THE OFFER OF PROOF MADE BY MR. UELMEN TALKED ABOUT A NUMBER OF WITNESSES WITH REGARDS TO CERTAIN EVENTS. AND DURING THE COURSE OF HIS ARGUMENT -- FOR EXAMPLE, HE INDICATES THAT THEY HAVE WITNESSES WITH REGARD TO NICOLE BROWN SIMPSON -- AND IF I JUST MAY GO TO THE PODIUM -- AND HER EMPLOYMENT AND MADE AN OFFER OF PROOF WITH RESPECT TO THAT, AND HE SAID THAT THE DEFENSE HAD WITNESSES ON THAT. WE HAVE LOOKED THROUGH OUR DISCOVERY THIS AFTERNOON AND DISCOVERED THAT THERE IS NOTHING IN OUR DISCOVERY WITH REGARD TO THAT. AN OFFER OF PROOF HAS BEEN MADE. WE CERTAINLY ARE BACKING UP OUR OFFER OF PROOF TO THE COURT WITH A NOTEBOOK PROVIDED TO THE COURT OF WHAT WE THINK ARE VERY RELEVANT DOCUMENTS. WE ASSUME THAT THE DEFENSE WOULD THEN DO THE SAME THING BASED ON MR. UELMEN'S ARGUMENT. THERE WAS ALSO SOME TALK ABOUT A PAYMENT FOR MEALS. I ASSUME THERE MUST BE SOME FINANCIAL EVIDENCE THAT THEY ARE IN POSSESSION OF. THERE WERE SEVERAL OTHER ISSUES THAT THE DEFENSE HAS REFERENCED WHERE THEY HAVE INDICATED THAT THEY'RE GOING TO PRESENT EVIDENCE; IN PARTICULARLY, WITH REGARD TO -- I BELIEVE TO THE ISSUE OF THE EVENT AT THE RED ONION. AND WE WOULD LIKE TO HAVE ALL THE INFORMATION THAT BACKS UP THE OFFERS OF PROOF THAT HAVE BEEN MENTIONED BY MR. UELMEN WITH REGARD TO THOSE EVENTS, AND WE SIMPLY ASK FOR THAT BECAUSE HE HAS MADE OFFERS TO THE COURT.

DOES IT REQUIRE THAT THEY TURN OVER REBUTTAL EVIDENCE TO YOU AT THIS POINT?

WE MADE AN OFFER OF PROOF IN A HEARING THAT THEY ASKED FOR --

WELL, TO TELL YOU THE TRUTH, MS. BODIN, MY THOUGHT PROCESS IS NOW ON THE MOTION ITSELF AND NOT ON THE DETAILS OF DISCOVERY. SO I'LL CONTEMPLATE DISCOVERY ISSUES TOMORROW MORNING WITH A HOPEFULLY RESTED MIND AND CLEAR THOUGHT PROCESS. WE'LL GO INTO THE MOTIONS REGARDING MOTION TO QUASH AND THE FUHRMAN MOTIONS. I ANTICIPATE WE SHOULD BE ABLE TO CONCLUDE THOSE MOTIONS BY TOMORROW. LET ME JUST GIVE YOU A HEADS UP SO YOU CAN PREPARE FOR OPENING STATEMENTS. ASSUMING THAT I ISSUE THE RULING AND EVERYTHING IS CLEAR ON WHAT THE RULINGS ARE AND THEY CAN PREPARE THEIR OPENING STATEMENTS ACCORDINGLY, WE WILL NEED APPROXIMATELY HALF A COURT DAY TO CHAT WITH THE JURORS AGAIN, AS I INDICATED WE WOULD. I NEED APPROXIMATELY HALF A DAY TO SWAP COMPUTERS AND DO A FEW OTHER THINGS LOGISTICALLY TO GET READY FOR THE PRESENTATION. SO THAT COULD GET US TO THE 19TH OR THE 20TH FOR OPENING STATEMENTS.

WE WILL BE READY, YOUR HONOR. WE ARE READY.

THANK YOU, YOUR HONOR.