Recross-examination of Dr. Donald Dutton

📄 Recross-examination of Dr. Donald Dutton — Thursday, January 12, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\12\RECROSS-EXAMINATION-OF-DR-DONA.DOC

TRIAL

▲ Day 2 of 167

◀ Redirect examination of Dr. Donald Dutton (part 1) Cross-examination of Dr. Donald Dutton (part 2) ▶

Witness: Dr. Donald Dutton
Examiner: F. Lee Bailey
Called by: Prosecution • Date: Thursday, January 12, 1995 • Utterances: 77

F. Lee Bailey recrosses domestic violence expert Dr. Donald Dutton, deploying a series of hypotheticals designed to undermine the battered woman narrative surrounding Nicole Brown Simpson. Bailey elicits that Nicole's alleged behavior — initiating reconciliation, beating a maid, and the disputed '$90,000 tax fraud' episode — does not fit typical battered woman patterns. The examination concludes with Bailey revealing the defense holds a copy of a lawyer's letter showing OJ refused to commit federal tax fraud on Nicole's behalf, not economic abuse.

# 1 MR. BAILEY:

I HAVE A COUPLE, YOUR HONOR.

# 2

RECROSS-EXAMINATION

# 3

BY MR. BAILEY:

# 4 Q:

BEFORE I HURL THE QUESTION AT YOU, DOCTOR, HAD ANYONE TOLD YOU ABOUT THE PORSCHE, THE MERCEDES, THE FERRARI AND THE CONDOMINIUM?

# 5 A:

TOLD ME ABOUT IT?

# 6 Q:

SO YOU COULDN'T POSSIBLY KNOW WHAT THOSE GIFTS WERE TRIGGERED BY ANY ACT OR JUST OUT OF GENEROSITY?

# 7 A:

NO, I DON'T KNOW.

# 8 MR. GORDON:

OBJECTION. ASSUMED IN OUR HYPOTHETICAL AGAIN, YOUR HONOR?

# 9 THE COURT:

NO.

# 10 MR. GORDON:

OKAY.

# 11 Q:

BY MR. BAILEY: NOW --

# 12 THE COURT:

SINCE WE DON'T HAVE A JURY HERE, I GIVE RATHER BROAD LEEWAY.

KEY QUOTE

# 13 MR. GORDON:

I UNDERSTAND.

# 14 THE COURT:

WHEN WE GET TO TRIAL IT WILL BE VERY STRICT.

# 15 MR. BAILEY:

BUT HOPEFULLY NOT FEDERAL.

KEY QUOTE

# 16 THE COURT:

TOUCHE.

# 17 Q:

BY MR. BAILEY: DR. BUTTON --

# 18 A:

YES.

# 19 Q:

-- IS IT TYPICAL FOR A VICTIM OF BATTERING WHO GOES THROUGH A DIVORCE, ESTABLISHES A LIFE OF HER OWN WITH A REASONABLY HARMONIOUS RELATIONSHIP WITH THE EX WHO HAS GOT A LIFE OF HIS OWN AND A LOVE OF HIS LIFE --

# 20 A:

RIGHT.

# 21 Q:

-- TO WANT TO MOVE BACK IN AND TO SUGGEST IT?

# 22 A:

ONLY IF SHE THOUGHT SHE HAD CHANGE.

# 23 Q:

OKAY. BUT IF SHE IS OUT OF HARM'S WAY AND IS A VICTIM, SHE IS HARDLY LIKELY TO DEMAND TO GET BACK INTO IT, TRUE?

# 24 A:

WELL, LET ME -- YES AND NO. LET ME JUST QUALIFY THAT A LITTLE BIT.

# 25 Q:

IF NOT THREATENED?

# 26 A:

OKAY.

# 27 Q:

IF NOT THREATENED?

# 28 A:

IF NOT THREATENED.

# 29 Q:

THIS IS MY HYPOTHETICAL, DOCTOR.

# 30 A:

IF NOT THREATENED. ONE OF THE THINGS THAT IS ALSO TRUE ABOUT BATTERING RELATIONSHIPS THAT FREQUENTLY GOES OVERLOOKED IS THAT MEN WHO ARE ABUSIVE WITH WOMEN ARE NOT CHRONICALLY ABUSIVE. THEY WERE NOT ABUSIVE EVERY DAY. THERE IS FREQUENTLY GREAT TIMES IN BETWEEN, AND WOMEN REPORT THIS. AND THERE IS A LOT OF REALLY ATTRACTIVE QUALITIES SOMETIMES ABOUT THE MAN WHO IS ALSO ABUSIVE. WOMEN COME INTO -- COME TO US ALL THE TIME -- OR MEN COMING INTO OUR GROUPS SAY, I DON'T WANT TO LOSE THE GUY, I DON'T WANT TO LOSE THE RELATIONSHIP, I WANT HIM TO STOP BEING VIOLENT. IF HE STOPPED BEING VIOLENT, HE'S REALLY A SWEET GUY, SO THERE COULD BE A LOT OF POSITIVE THINGS THAT WOULD DRAW THAT WOMAN BACK IF SHE FELT THAT MAN HAD NOW DIMINISHED HIS ABUSIVE BEHAVIOR.

# 31 Q:

JUST ASSUME THEN, HYPOTHETICALLY, THAT A YEAR AFTER THE DIVORCE TAKES PLACE IN THE MIDDLE OF '92, SAY, MAY OF '93, THE VICTIM SAYS I WOULD LIKE TO GET BACK TOGETHER.

# 32 A:

UH-HUH.

# 33 Q:

COULD WE TRY IT FOR A YEAR, HER INITIATIVE.

# 34 A:

UH-HUH.

# 35 Q:

AND AT THE END OF THAT YEAR THE ALLEGED BATTERER SAYS, I'M SORRY, HONEY, IT IS NOT WORKING AND WE ARE GOING TO TERMINATE. IS THAT TYPICAL CONDUCT IN THE BATTERED COUPLE?

# 36 A:

NO. IF HE WERE THE ONE THAT INITIATED THE SPLIT, THAT WOULD NOT BE TYPICAL.

# 37 Q:

ALL RIGHT. LET'S TAKE IT ONE FURTHER.

# 38 A:

OKAY.

# 39 Q:

SUPPOSING THE VICTIM, WHO IS NOT ALLOWED TO MOVE BACK INTO THE MARITAL HOME, THE FORMER MARITAL HOME, NONETHELESS HAS HER MAIL SENT THERE AS A PRELUDE TO AN ADVANCE.

# 40 A:

UH-HUH.

# 41 Q:

ASSUME THAT AND ASSUME THAT WHEN THE VICTIM DISCOVERS THAT SHE CANNOT GET ALONG WITH THE LIVE-IN MAID SHE BEATS HER UP PHYSICALLY.

# 42 A:

UH-HUH.

# 43 Q:

IS THAT CONSISTENT WITH A WOMAN WHO IS TRYING TO RUN AWAY FROM A THREATENING RELATIONSHIP OR ONE WHO IS TRYING TO GET BACK INTO A RELATIONSHIP?

# 44 A:

THAT IS NOT CONSISTENT WITH ANY PATTERN I HAVE EVER HEARD OF.

KEY QUOTE

# 45 Q:

IT IS NOT CONSISTENT WITH A WEAK WOMAN, IS IT?

# 46 A:

NO, BUT I MEAN IT COULD BE CONSISTENT WITH A WOMAN WHO IS PRETTY ANGRY.

# 47 Q:

AT THE MAID?

# 48 A:

WELL, ABOUT SOMETHING. I DON'T KNOW WHAT -- I MEAN, IT IS A HYPOTHETICAL CASE. IT IS HARD TO SAY, BUT SHE IS PLENTY ANGRY ABOUT SOMETHING.

# 49 Q:

ALL RIGHT. LAST QUESTION.

# 50 A:

OKAY.

# 51 Q:

IF THE SOLE EVIDENCE ALLEGED, AND I THINK YOU HEARD THE DATE --

# 52 A:

RIGHT.

# 53 Q:

-- OF ECONOMIC ABUSE WERE TO GET A LAWYER TO TELL THE VICTIM NOT TO CONSPIRE TO DEFRAUD THE UNITED STATES OUT OF $90,000, IS THAT ECONOMIC ABUSE OR IS THAT GOOD SENSE?

# 54 MR. GORDON:

OBJECT. IT IS AN INCOMPLETE HYPOTHETICAL AND GOES BEYOND THE SCOPE.

# 55 THE COURT:

OVERRULED.

# 56 DR. DONALD DUTTON:

IT IS REALLY HARD TO ANSWER THAT WITHOUT KNOWING THE CONTEXT.

# 57 MR. BAILEY:

FINE, FINE.

# 58 DR. DONALD DUTTON:

OKAY.

# 59 Q:

BY MR. BAILEY: NOT TOO MUCH LONG PRIOR TO THE UNFORTUNATE EVENTS THAT BRING US HERE TODAY.

# 60 A:

YEAH.

# 61 Q:

THE VICTIM, WHO HAS SOLD A RENTAL PROPERTY AND PURCHASED ANOTHER --

# 62 A:

RIGHT.

# 63 Q:

-- IN WHICH SHE IS LIVING WHICH UNDER U.S. TAX LAWS WOULD TRIGGER A CAPITAL GAINS LIABILITY OF ABOUT NINETY GRAND, ACCORDING TO HER ACCOUNTANT --

# 64 A:

RIGHT.

# 65 Q:

-- WHICH THE DEFENDANT HAS INSISTED SHE ESCROW IN CASE UNCLE SAM CATCHES UP, WANTS HIM TO SWEAR THAT SHE IS LIVING IN HIS HOUSE WHEN IT IS NOT TRUE AND HE HAS HIS LAWYER SAY WE CAN'T DO THAT, THAT IS CONSPIRACY TO COMMIT A FEDERAL FELONY, DON'T DO IT, IS THAT ECONOMIC ABUSE?

# 66 A:

HE IS JUST FOLLOWING HIS LAWYER'S ORDERS -- THE WAY YOU ARE PUTTING IT TO ME, HE IS FOLLOWING HIS LAWYER'S ORDERS.

# 67 Q:

HAVE YOU SEEN A COPY OF THE LAWYER'S LETTER OR DIDN'T THEY SHOW YOU THAT?

# 68 MR. GORDON:

IS THAT THE HYPOTHETICAL LETTER, YOUR HONOR?

# 69 MR. BAILEY:

HYPOTHETICAL LETTER THAT THE PEOPLE HAVE IN THEIR FILES.

# 70 THE COURT:

WELL, COUNSEL, I ASSUME WHAT IS GOING ON HERE IS A LITTLE PRETRIAL DISCOVERY IS WHAT IS GOING ON HERE.

# 71 MR. GORDON:

I FIGURED THAT, YOUR HONOR.

# 72 THE COURT:

YEAH.

# 73 MR. BAILEY:

WE HAVE A COPY, YOUR HONOR.

# 74 THE COURT:

ALL RIGHT.

# 75 Q:

IF THAT IS THE SOLE EXAMPLE WOULD YOU SAY THAT THAT DOES NOT AMOUNT, IN YOUR EXPERIENCE --

# 76 A:

I WOULD SAY THE WAY THAT YOU ARE DESCRIBING THE CASE TO ME, THIS MAN WOULD SIMPLY BE FOLLOWING HIS LAWYER'S ORDERS.

# 77 MR. BAILEY:

OKAY.

Temperature

tense

Key Quotes (4)

F. Lee Bailey

BUT HOPEFULLY NOT FEDERAL.

Sardonic jab at Judge Ito's comment about strict trial rules, eliciting a 'Touche' — revealing this is a pretrial civil proceeding with a relaxed atmosphere before a jury-less bench.

Dr. Donald Dutton

THAT IS NOT CONSISTENT WITH ANY PATTERN I HAVE EVER HEARD OF.

Dutton concedes Bailey's hypothetical — a purported victim who beats the maid to gain access to the ex's home — fits no known battered woman pattern, directly undermining the plaintiff's DV framing.

Dr. Donald Dutton

THE WAY YOU ARE PUTTING IT TO ME, HE IS SIMPLY FOLLOWING HIS LAWYER'S ORDERS.

Bailey successfully reframes the '$90,000 tax fraud' episode — cited as economic abuse — as OJ simply refusing to commit a federal felony on the advice of counsel.

Judge Lance A. Ito

SINCE WE DON'T HAVE A JURY HERE, I GIVE RATHER BROAD LEEWAY. WHEN WE GET TO TRIAL IT WILL BE VERY STRICT.

Confirms this is a pretrial evidentiary hearing; Ito signals the hypothetical-heavy questioning style will face tighter constraints at trial.

Evidence (2)

Informal

Lawyer's letter advising OJ not to swear Nicole lived at his house to avoid a ~$90,000 capital gains tax liability — defense claims it is in the prosecution/plaintiff's files

referenced by Bailey; existence confirmed; defense states they hold a copy

Informal

Gifts to Nicole: Porsche, Mercedes, Ferrari, and a condominium

discussed; Bailey establishes Dutton was not told what motivated the gifts

Notable Exchanges (3)

F. Lee Bailey•Dr. Donald Dutton

Bailey constructs a multi-part hypothetical: Nicole initiates reconciliation post-divorce, OJ ends it after a year, Nicole tries to move back in, and beats the live-in maid. Dutton admits none of this fits a battered woman pattern.

strategic

F. Lee Bailey•Judge Ito

After Ito notes he allows broad leeway without a jury, Bailey quips 'But hopefully not federal' — a reference to the more restrictive federal court rules (and perhaps the underlying federal tax issue in the hypothetical). Ito replies 'Touche.'

light

F. Lee Bailey•Scott Gordon•Judge Ito

Bailey asks whether Dutton was shown 'the lawyer's letter'; Gordon asks if it's the 'hypothetical letter'; Bailey clarifies it's a real letter in the plaintiff's files; Ito wryly notes 'a little pretrial discovery is what is going on here.'

revealing

Light Moments (2)

F. Lee Bailey

Bailey responds to Ito's warning about strict trial rules with 'But hopefully not federal,' prompting Ito to say 'Touche.'

Judge Lance A. Ito

Ito deadpans that Bailey's line of questioning about a real lawyer's letter amounts to 'a little pretrial discovery' in open court.

Credibility Attacks (1)

⚔ Dr. Donald Dutton

hypothetical contradiction

Bailey walks Dutton through scenarios derived from actual facts (gifts, reconciliation attempt, maid assault, tax fraud) that Dutton concedes do not fit battered woman typology, eroding the evidentiary basis for the DV narrative Dutton was called to support.

Objections

2 objections (0 sustained, 2 overruled)

Proceeding 4380 • 77 utterances • Prosecution witness

Criminal Trial

Department 103