ALL RIGHT. I ALSO UNDERSTAND THAT THERE ARE A NUMBER OF OBJECTIONS THE COURT NEEDS TO RULE UPON CONCERNING THE EXHIBITS, PROPOSED EXHIBITS FOR THE OPENING STATEMENTS, CORRECT? ALL RIGHT. EXCUSE ME JUST A SECOND. MR. HILL.
MY OBJECTIONS, OR THE REASON THAT I'M APPROACHING IS TWO-FOLD: ON THE ONE HAND, I WOULD LIKE TO LODGE OBJECTIONS TO SOME OF THE PHOTOGRAPHS THAT THE PROSECUTION INTENDS TO USE IN THEIR OPENING STATEMENT. AND SECONDLY, I WOULD LIKE TO APPROACH TO ADVISE THE COURT THAT THERE NEEDS TO BE, PRIOR TO THE BEGINNING OF OUR OPENING STATEMENT, AN OPPORTUNITY FOR THE PROSECUTION TO REVIEW ALL OF OUR GRAPHICS AND TO REVIEW SOME OF OUR BOARDS. REGRETTABLY, ALL OF OUR GRAPHICS AND SOME OF OUR BOARDS WERE NOT COMPLETED BY LAST FRIDAY WHEN WE HAD THE MUTUAL EXCHANGE. THERE WERE SOME CHANGES THAT WE MADE ON SOME OF THEM. THERE WERE SOME THAT WERE ADDED, THERE HAS BEEN SOME FINE TUNING THAT OCCURRED EVEN LAST NIGHT. AND I DO NOT WANT TO NOT GIVE THE PEOPLE THE ADEQUATE OPPORTUNITY TO REVIEW OUR BOARDS. PERHAPS AN HOUR WOULD BE TIME.
I HAVE THE FEELING, MISS CLARK, THAT YOU WILL GET US TO THE LUNCH HOUR JUST WARMING UP. THAT IS A GOOD SUGGESTION, THAT WE LOOK AT THOSE OVER THE LUNCH HOUR.
I WOULD LIKE TO LOOK AT THEM BEFORE WE STAND UP. I THINK THAT -- YOU KNOW, I WOULD LIKE TO RESOLVE WHAT IS GOING TO BE PRESENTED TO THE JURY, IF WE COULD, BEFORE WE BEGIN OPENING STATEMENTS, BECAUSE I THINK IT IS -- FIRST OF ALL, WE ARE GOING TO WIND UP JUST DOING ARGUMENT ON WHAT OURS ARE? THE COURT NEEDS TO SEE BALANCE HERE. THIS IS REAL UNFAIR, YOUR HONOR. WHEN I TALKED TO MR. DOUGLAS SATURDAY THERE WERE ABOUT TWENTY LESS EXHIBITS THAN THEY BROUGHT IN HERE, AND WE WERE SUPPOSED TO HAVE AN EXHIBIT EXCHANGE AHEAD OF TIME SO THAT WE WOULD KNOW WHAT WE WERE CONFRONTING. NOW BY SANDBAGGING US AT THE LAST MINUTE THEY ARE JUMPING AND THROWING --
I SURE DO, AND THAT IS WHAT THE COURT INTENDED WHEN IT ASKED FOR THE EXHIBIT EXCHANGE AHEAD OF TIME.
SO THE COURT UNDERSTANDS, THE EXHIBITS ARE DEMONSTRATIVE WHICH ARE GOING TO BE USED TO ILLUSTRATE PORTIONS OF OPENING STATEMENT THAT ARE GIVEN.
THE OPENING STATEMENTS ARE GOING TO BE GIVEN WHETHER OR NOT THE EXHIBITS ARE HERE OR NOT HERE, SO I'M NOT SURE, ALTHOUGH I DON'T WANT TO PRECLUDE MISS CLARK FROM KNOWING WHAT OUR BOARDS ARE, I'M JUST TRYING TO BALANCE THE COURT'S TIME AND TIME THAT IS AVAILABLE, BUT WHETHER OR NOT A PARTICULAR PICTURE, FOR EXAMPLE, IS OBJECTIONABLE OR NOT DOESN'T MEAN THAT MR. COCHRAN OR WHOMEVER IS SPEAKING IS GOING TO ALTER --
LET'S TAKE THIS FROM THE TOP. SINCE THE PROSECUTION GOES FIRST, WHAT ARE YOUR OBJECTIONS TO THE PEOPLE'S EXHIBITS?
MY OBJECTION TO THE PEOPLE'S EXHIBITS? TWO AREAS, AND THAT DEALS WITH PHOTOGRAPHS OF THE CRIME SCENE.
AS I RECALL, THERE ARE FIVE PHOTOGRAPHS OF THE VICTIM SIMPSON, ONE TAKEN OUTSIDE THE YELLOW TAPE AS IF IT WERE TAKEN FROM THE STREET AREA AND IT LOOKS DOWN THE WALKWAY AND SHOWS THE BODY LAYING THERE. THERE WAS ANOTHER PICTURE THAT IS TAKEN PERHAPS MIDWAY THROUGH THE WALKWAY AND A CLOSER VIEW OF THE SAME SCENE. THERE IS ANOTHER PICTURE TAKEN WHICH IS AGAIN A CLOSER VIEW OF THE SAME SCENE. I BELIEVE THERE IS A FOURTH PICTURE TAKEN WHICH IS AGAIN A CLOSE-UP OF THE SAME SCENE. THERE IS THEN A FIFTH PICTURE TAKEN WHICH IS FROM ABOVE LOOKING DOWN AT THE HEAD SHOWING ALL OF THE BLOOD. I RECOGNIZE THAT THIS IS A MURDER CASE AND I RECOGNIZE THAT THERE ARE DEAD BODIES IN MURDER CASES; HOWEVER, I DO BELIEVE IT PRUDENT FOR THE COURT TO EXERCISE SOME DISCRETION IN LIMITING THE NUMBER AND THE GRAPHICNESS AND ELIMINATING THOSE PICTURES THAT ARE FAR MORE GRAPHIC. THERE ARE AT LEAST THREE OR FOUR, I THINK THREE, PERHAPS FOUR, PHOTOGRAPHS OF THE GOLDMAN BODY. AGAIN I REALIZE THAT THIS IS A MURDER CASE AND THERE IS PROBATIVE VALUE TO EXPLAINING THE LOCATION OF THE BODIES. THERE ARE OTHER DIAGRAMS THAT THEY ARE GOING TO OFFER WHERE THERE WILL BE A SKETCH SHOWING THE RELATIONSHIP BETWEEN THE TWO BODIES, WHERE THEY ARE OUTLINED, TO WHICH I DO NOT OBJECT. BUT I DO NOT THINK THERE IS THE NEED FOR FOUR DIFFERENT PHOTOGRAPHS TO BE USED AT THIS POINT. I THINK IT CUMULATIVE. I THINK IT MORE THAN PROBATIVE. I WAS WILLING, FOR EXAMPLE, TO ACCEPT THE FIRST PICTURE FOR THE OVERVIEW AND THE THIRD PICTURE OF MISS SIMPSON. I WAS WILLING, FOR EXAMPLE, TO ACCEPT TWO OF THE FOUR PICTURES OF MR. GOLDMAN, BUT I DO NOT THINK, IN FAIRNESS TO THE DEFENDANT, THAT THERE NEEDS TO BE THE CUMULATIVE NATURE OF ALL OF THE PHOTOGRAPHS. THEY ARE ON GRAPHICS. THEY CAN EASILY BE SCANNED OR VOIDED.
THEY ARE ON GRAPHICS, THEY ARE ALL BAR CODED SO THAT THEY CAN VOID 1 OR VOID 50, DEPENDING ON THE COURT'S RULING, BUT I DO THINK THE COURT SHOULD EXERCISE SOME DISCRETION.
WELL, IT IS HARD FOR ME TO DO THAT WITHOUT LOOKING AT THEM. ALL RIGHT. SO YOU ARE TALKING ABOUT ROUGHLY PERHAPS NINE PHOTOS THAT THE PROSECUTION HAS SHOWN YOU THAT YOU OBJECT TO, CORRECT?
YES. I DON'T OBJECT TO THEM AS A THRESHOLD MATTER. I WOULD OBJECT TO SIX OF THE NINE.
IN SOME FORM I CAN. THIS IS WEIRD. WE HAVE -- WE HAVE THEM READY TO BE SCANNED IN, YOU KNOW WHAT I MEAN, FOR THE SCREEN, BUT THEY ARE TINY. WHAT I HAVE IS A REPRESENTATION TO SHOW THE COURT RIGHT NOW IS A VERY TINY THING.
LET ME SAY TO THE COURT, BEFORE I ACTUALLY ADDRESS THE COURT COMPLETELY ON THEM, THAT THERE ARE MANY, MANY MORE PHOTOGRAPHS AT THE CRIME SCENE THAT ARE FAR MORE GRUESOME THAN WHAT WE HAVE USED. WE TOOK THE MOST CONSERVATIVE VIEW THAT WE COULD. AND WHAT WE DID IS WE TOOK DIFFERENT POSITIONS SO THE JURY COULD SEE THE JUXTAPOSITION OF THE VICTIM AT THE CRIME SCENE, THE CORRELATION OF ALL OF THE EVIDENCE TO THEM, SO LET ME LET THE COURT LOOK AND TALK MORE.
ALL RIGHT. COUNSEL, LET ME ADVISE OUR EVIDENCE PRESENTATION PEOPLE THAT THERE IS AN OBJECTION TO PERHAPS TEN OF THE EXHIBITS THAT THE PROSECUTION WISHES TO PRESENT DURING THE COURSE OF OPENING STATEMENTS. I NEED TO VIEW THOSE HERE ON MY MONITOR SCREEN. WHAT DO YOU SUGGEST I DO AS FAR AS -- BECAUSE THESE ARE NOT FOR DISSEMINATION AT THIS POINT. CAN WE ACCOMPLISH THAT, MR. REITER?
THEN THEY CAN BRING THEM UP WHENEVER THE PROSECUTION IS READY AND IT WILL JUST BE ON THOSE THREE MONITORS.
ALL RIGHT. I'M ALSO GOING TO DIRECT THE STILL PHOTOGRAPHERS NOT TO ATTEMPT TO TAKE ANY PHOTOGRAPHS OF THE COURT'S MONITOR, AS WELL AS THE T.V. CAMERA.
AND JUDGE, WITH REGARD TO THE TABLE MONITORS, YOU ARE THE ONLY ONE THAT REALLY NEEDS TO SEE THEM?
ALL RIGHT. I SEE WHAT APPEARS TO BE AN ALLEYWAY IN THE BACK OF THE BUILDING. IS THIS A TEST PHOTO?
ALL RIGHT. COUNSEL, IS THERE ANY PARTICULAR REASON WE NEED TO HEAR THIS ARGUMENT AT SIDE BAR?
I HAVE HEARD THE OBJECTION OF THE DEFENSE. AS TO THESE FIVE ITEMS, MR. DOUGLAS, YOU INDICATED THERE IS NO OBJECTION TO PEOPLE'S 417, WHICH IS THE PHOTOGRAPH OF MR. SIMPSON'S HAND, CORRECT?
ALL RIGHT. SO THE OBJECTIONS ARE TO THE OTHER FOUR. MISS CLARK, I WILL HEAR YOUR ARGUMENT AS TO PEOPLE'S 40.
YES. WITH RESPECT TO PEOPLE'S 40, LET ME FIRST PREFACE MY REMARKS WITH THIS, YOUR HONOR. WE HAD SHOWN MR. DOUGLAS --
YOUR HONOR, WHEN I WAS SHOWN THE PHOTOGRAPHS ON FRIDAY I WAS SHOWN A LARGER SERIES OF PHOTOGRAPHS. GIVEN THAT THIS IS THE ONE PHOTOGRAPH OF AN EXTENDED SERIES THAT THEY ARE GOING TO OFFER, I WILL NOT OBJECT TO THAT ONE.
YES, YOUR HONOR. ACTUALLY THIS IS A FAR LESS GORY PHOTOGRAPH THAN MANY, MANY, MANY OF THE OTHERS THAT THE PEOPLE HAVE, AND THE VALUE OF IT UNDER 352 IS CLEARLY SHOWN, THE PROBATIVE VALUE THAT IS. WE ARE SHOWING EVIDENCE IN ITS RELATIONSHIP LOCATION, NATURALLY SPEAKING, TO THE VICTIM, THE MANNER IN WHICH THE SPACIAL CONNECTION BETWEEN THEM, AND THE POSITION OF THE ITEMS OF EVIDENCE IN RELATION TO THE VICTIM SO THAT WE CAN SHOW HOW CLOSE AND NARROW THE AREA IS, THE POSITIONS OF EACH OF THE VICTIMS AND THE POSITION OF THE EVIDENCE VIS-A-VIS THOSE VICTIMS. AND THE COURT CAN SEE THAT THAT IS EXACTLY WHAT IS BEING POINTED TO IN THAT PHOTOGRAPH, SO THE PROBATIVE VALUE CLEARLY OUTWEIGHS ANY PREJUDICIAL EFFECT. I WOULD LIKE TO CITE THE COURT AS WELL TO THE CASE OF PEOPLE VERSUS PRIDE, 3 CAL.4TH 195.
AND PEOPLES VERSUS SIMS, 5 CAL.4TH, 405. BOTH OF THESE CASES I CITED TO THE COURT PRIOR TO SIMS ADDRESS VIDEOTAPES AS WELL AS GRUESOME PHOTOS FOR THE PURPOSE OF ESTABLISHING RELEVANT FACTS IN THE CASE. IN THIS PARTICULAR CASE THE PEOPLE HAVE WEEDED OUT NUMEROUS PHOTOGRAPHS THAT WERE EXTREMELY GRAPHIC IN NATURE IN FAVOR OF THE MORE MINIMALIST APPROACH OF TAKING PHOTOGRAPHS THAT WERE THE LEAST GRAPHIC IN NATURE, BUT STILL CONVEYED THE MESSAGE IN AN EVIDENTIARY SENSE TO INDICATE WHAT WE NEEDED TO IN TERMS OF THE INFORMATION THAT WE ARE TRYING TO GIVE TO THE JURY. SO THE PHOTOGRAPHS THAT THE COURT SEES IS EVEN LESS THAN WHAT MR. DOUGLAS WAS SHOWN ON FRIDAY BECAUSE MR. DOUGLAS INDICATED THERE WOULD BE OBJECTIONS TO TOO MANY OF THE PHOTOGRAPHS THAT THE PEOPLE FELT WERE NOTHING MORE THAN ILLUSTRATIVE OF IMPORTANT INFORMATION AND CERTAINLY NOT UNDULY GRAPHIC. BUT WE EVEN CUT BACK FROM THAT SO WHAT THE COURT IS SEEING HERE IS THE MOST MINIMUM, IS THE VERY BAREST MINIMUM THAT THE PEOPLE NEED TO SHOW TO EXPLAIN TO THE JURY WHERE EVIDENCE WAS LOCATED AND WHERE THE VICTIMS WERE FOUND, IN WHAT POSITION AND IN WHAT RELATIONSHIP TO EACH OTHER.
MR. DOUGLAS IS OBVIOUSLY GOING TO ARGUE THAT WE COULD DEPICT THAT BY A DIAGRAM WITHOUT HAVING A BLOODY CRIME SCENE PHOTO.
WE REALLY CAN'T. THIS CRIME SCENE IS VERY DIFFICULT TO DEPICT, EVEN IN PHOTOGRAPHS, AND WE ARE GOING TO HAVE A JURY VIEWING FOR THAT REASON, BUT PHOTOGRAPHS ARE CERTAINLY BETTER THAN A DIAGRAM. WE TRIED TO DEPICT IT IN A DIAGRAM AND IT DOESN'T EXPLAIN AND IT DOESN'T SHOW THE JURY CLEARLY ENOUGH WHAT WE ARE TRYING TO CONVEY TO THEM. AND THERE IS NOTHING THAT IS MORE EXPLANATORY, NOTHING MORE READILY ACCEPTABLE OR UNDERSTANDABLE TO A JURY THAN A PHOTOGRAPH. THAT IS WHY WE'VE HAD THEM. THAT IS THE PURPOSE OF THEM. DIAGRAMS CAN ONLY CONVEY SO MUCH, BUT THE ACTUAL ITEM ITSELF, THE PHOTOGRAPH OF IT, IS MUCH MORE INFORMATIVE, IS SIMPLY MORE INFORMATIVE THAN A DIAGRAM. WE DO ATTEMPT TO USE DIAGRAMS AS WELL, BUT IT SIMPLY DOES NOT HAVE THE FORCE AND IMPACT THAT A PHOTOGRAPH DOES. THAT IS WHY COUNSEL IS OBJECTING TO IT. THAT IS EXACTLY THE POINT, YOUR HONOR. IF A DIAGRAM WAS AS GOOD AS A PHOTOGRAPH OR WAS THE SAME AS A PHOTOGRAPH, COUNSEL WOULDN'T OBJECT TO THE PHOTOGRAPHS. THE POINT IS THAT THE PEOPLE ARE TRYING TO EXPLAIN SOMETHING TO THE JURY AND WE NEED TO DO IT IN THE MOST EFFECTIVE WAY POSSIBLE.
NOT ONLY THAT, YOUR HONOR, I WILL SAY THIS: THE PHOTOGRAPHS WE ARE USING ARE REALLY THE MOST MINIMAL IN TERMS OF GRAPHIC IMPACT. NEVERTHELESS, THE PEOPLE'S POSITION IS THAT WE WOULD BE ENTITLED TO SHOW PHOTOGRAPHS FAR MORE GRAPHIC THAN THAT BECAUSE IT IS RELEVANT TO MALICE AND TO INTENT WHICH IS OBVIOUSLY WHAT THE PEOPLE HAVE TO PROVE IN THIS CASE, SO THIS IS THE VERY MOST MINIMAL IMPACT. WE ALSO HAVE SHOWN IN --
ALL RIGHT. MISS CLARK, WOULD YOU ADDRESS PEOPLE'S 113, THE PHOTOGRAPH OF RONALD GOLDMAN.
THAT IS TRULY -- I DON'T KNOW WHY -- I WONDER IF THE DEFENSE IS REALLY STILL OBJECTING TO THAT. THAT IS THE ONLY DEPICTION OF THAT VICTIM.
IT IS FULL FRAME BUT THERE ARE CLOSER SHOTS THAT COUNSEL IS AWARE OF THAT WE COULD HAVE USED AND DID NOT, SO I'M GOING TO ASK TO SEE IF COUNSEL STILL OBJECTS TO THIS. IT IS THE ONLY DEPICTION THAT WE HAVE.
YOUR HONOR, IF MISS CLARK IS SAYING TO THE COURT THAT THAT WILL BE THE ONLY PHOTOGRAPH OF MR. GOLDMAN OR OF THE GOLDMAN BODY THAT SHE IS GOING TO BE USING IN HER OPENING, I RESPECT THAT AND I WOULD ALLOW THAT ONE PHOTOGRAPH TO BE USED.
BUT I DO THINK, YOUR HONOR, THAT THE EXHIBIT P-35, AS WELL AS EXHIBIT P-44, ARE FAR MORE PREJUDICIAL --
YOUR HONOR, THERE ARE OTHER PHOTOGRAPHS THAT I WAS REMINDED. THAT IS ANOTHER QUESTION.
ALL RIGHT. MISS CLARK, PEOPLE'S 44. WHAT IS THE RELEVANCE OF THIS PARTICULAR PHOTOGRAPH? WHAT IS THE RELEVANCE AND NECESSITY OF THIS PHOTOGRAPH?
WITH RESPECT TO P-44, WE HAVE -- PART OF THE EVIDENCE IN THIS CASE, VERY IMPORTANT EVIDENCE IN THIS CASE ARE THE BLOODY SHOEPRINTS. THERE IS ONE SET OF BLOODY SHOEPRINTS LEAVING THE SCENE OF THE CRIME GOING BACK TO THE REAR ALLEY AND THE BLOOD THAT THE DEFENDANT STEPPED IN TO CREATE THOSE BLOODY SHOEPRINTS IS VERY IMPORTANT EVIDENCE. WE NEED TO SHOW, WITH RESPECT TO THIS PHOTOGRAPH, WE SHOW NOT ONLY THE BLOOD THAT WAS STEPPED IN, ALONG WITH SHOEPRINTS THAT ARE DEPICTED IN THIS PHOTOGRAPH, BUT THE CLOSENESS OF THE ENVELOPE TO THE BODY, SO IT IS A PERSPECTIVE SHOT SHOWING THE -- SHOWING AGAIN AN ARRAY OF EVIDENCE, NOT JUST ONE THING, SO THIS IS A DIFFERENT VIEW SHOWING A DIFFERENT PERSPECTIVE AND SHOWING DIFFERENT EVIDENCE, VIS-A-VIS THE BODY. AND ALSO I WOULD INDICATE THAT P-44 SHOWS THE BACK OF THE VICTIM, WHICH IS FAR LESS PREJUDICIAL THAN THE VIEW FROM THE FRONT, SO NONE OF THESE ARE DUPLICATIVE. EVERYTHING -- EVERY SINGLE PHOTOGRAPH THAT I HAVE TALKED ABOUT SHOWS A DIFFERENT VIEW OF EACH OF THE VICTIMS WITH DIFFERENT ITEMS OF EVIDENCE THAT WE ATTEMPT TO DEPICT AND DEMONSTRATE CERTAIN INFORMATION TO THE JURY.
YOUR HONOR, I RECOGNIZE THAT THIS IS A MURDER CASE AND WITH MURDER CASES THERE ARE DEAD BODIES. I DO THINK, HOWEVER, THAT THE COURT NEEDS TO BALANCE THE PREJUDICIAL IMPACT, THE EMOTIONAL SENSE THAT MANY OF THESE PICTURES WILL ENGENDER IN THE JURY. CERTAINLY I THINK IT INTERESTING THE REASON WHY THE PEOPLE WOULD RATHER HAVE A PHOTOGRAPH THAN A DRAWING, AND I WILL REPRESENT TO THE COURT THAT THERE ARE DRAWINGS WHICH SHOW THE INTERRELATIONSHIP BETWEEN THE TWO VICTIMS AND IT IS VERY CAPABLE FOR MISS CLARK OR WHOMEVER TO DESCRIBE BASED ON THAT SCHEMATIC DRAWING WHERE THE ENVELOPE WAS, FOR EXAMPLE, WHERE A GLOVE WAS FOUND OR WHATEVER. I THINK THE REASON WHY THEY WANT TO SHOW THE PHOTOGRAPH IS TO -- IS TO GIVE SOME EMOTIONAL TEXTURE TO THE JURY, TO MR. SIMPSON'S DETRIMENT, AND I OBJECT TO THAT, AND I THINK, YOUR HONOR, THAT BOTH PICTURES P-35 AND P-44 ARE CUMULATIVE WHEN TAKEN TOGETHER. BOTH SHOW A VIEW FROM ABOVE NICOLE BROWN SIMPSON, BOTH SHOW HER LAYING IN A FETAL POSITION WITH THEIR BEING BLOOD FLOWING DOWN THE WALKWAY. I THINK CERTAINLY EITHER PICTURE IS ADEQUATELY CAPABLE OF EXEMPLIFYING THE SETTING THAT MISS CLARK WISHES TO OFFER AND I DO NOT THINK IT NECESSARY THAT BOTH BE OFFERED INTO EVIDENCE OR USED IN OPENING STATEMENT.
OKAY. AND I WOULD LIKE TO ADDRESS THE COURT, IF I MAY, AFTER THE COURT HAS SEEN THEM.
ALL RIGHT. THE OBJECTIONS WILL BE OVERRULED. BOTH OF THOSE PHOTOGRAPHS, 35 AND 44, DEPICT DIFFERENT ITEMS AT THE CRIME SCENE. IT IS CLEAR TO THE COURT THAT THE KEY ISSUES, AT LEAST AS THE CRIME SCENE IS CONCERNED, IS THE COLLECTION OF EVIDENCE AND WHERE THAT EVIDENCE WAS, SO THE OBJECTIONS ARE OVERRULED.
YOUR HONOR, THERE ARE AT LEAST TWO, IF NOT MORE, OTHER PHOTOGRAPHS THAT ARE GOING TO BE OFFERED, WHICH IS PART OF A VIDEO GRAPHIC. THEY ARE, IN PARTICULAR, PHOTOGRAPHS OF CRIMINALIST FUNG AND MAZZOLLA USING THE PHENO PROCESS ON THE DRAIN IN MR. SIMPSON'S BATHROOM, IN THE SHOWER, AND PARTICULARLY ON THE BASIN IN HIS BATHROOM. I REMIND THE COURT OF THE COURT'S EARLIER RULING THAT THE PHENO TESTING IN AND OF ITSELF WOULD NOT BE ADMITTED INTO EVIDENCE UNLESS THERE WAS FURTHER CORROBORATION THAT WAS GOING TO BE OFFERED AS IT CONCERNS THE DRAIN IN THE SHOWER, AS IT CONCERNS THE DRAIN IN THE BASIN, I DO NOT RECALL THERE BEING ANY PRESUMPTIVE OR SUPPLEMENTAL TEST TO CORROBORATE THE PRESENCE OF BLOOD IN BOTH OF THOSE LOCATIONS. AS THE COURT IS AWARE, HAIRSPRAY, LEMON JUICE, FRUIT JUICE, A HOST OF DIFFERENT OTHER MATTERS THAT ARE CERTAINLY INNOCENT ARE CAPABLE OF REGISTERING A POSITIVE SHOWING ON A PHENO TEST AND WHAT YOU ARE GOING TO HAVE IS YOU WILL HAVE, FOR EXAMPLE, A VIDEO PICTURE OF THE BATHROOM HONING IN ON THE DRAIN, AND DISSOLVING FROM THAT WILL BE A PHOTOGRAPH OF FUNG SHOWING A Q-TIP LEANING DOWN AT THE DRAIN PIPE AND A SIMILAR PRESENTATION OF A PHOTOGRAPH OF MR. FUNG LEANING DOWN AT THE BASIN IN THE BATHROOM. I THINK CONSISTENT WITH THE COURT'S EARLIER RULINGS THOSE TWO PHOTOGRAPHS OR ANY DEPICTIONS THAT SHOW THE PHENOTYPING THAT IS NOT CORROBORATED BY OTHER TESTING METHODOLOGY SHOULD NOT BE OFFERED IN THE OPENING STATEMENTS.
THE PHENO TEST IS A DIFFERENT STORY. THAT HAS BEEN ADMISSIBLE FROM I CAN'T TELL HOW MANY YEARS AGO. IT IS LIMITED IN TERMS OF ITS VALUE OF WHAT BOTH SIDES CAN ARGUE. IT INDICATES THE PRESENCE OF BLOOD. THAT IS ALL IT DOES. WE ARE NOT SAYING IT DOES ANY MORE THAN THAT. AND THE PHOTOGRAPHS THAT COUNSEL IS COMPLAINING OF ARE PHOTOGRAPHS SHOWING THE PINK COLOR ON THE PHENO STICK THAT INDICATES THE PRESENCE OF BLOOD IN TWO AREAS -- THREE AREAS ACTUALLY IN THE DEFENDANT'S BATHROOM.
ARE THESE STILL PHOTOS -- EXCUSE ME, MISS CLARK. FORGIVE ME FOR INTERRUPTING YOU. ARE THESE STILL PHOTOS OR VIDEO?
I THINK WE HAVE CUT OUT ALL OF THE VIDEO THAT WE WERE USING. THESE ARE STILL PHOTOGRAPHS THAT COUNSEL HAS HAD IN DISCOVERY FOR A VERY LONG TIME, MY UNDERSTANDING, SO IT REALLY PERTAINED TO LUMINOL AND NOT THE PHENO TEST. I THOUGHT THERE WOULD BE NO PROBLEM WITH THIS.
YOUR HONOR, THE PROBLEM IS THAT 99 PERCENT OF ALL HOMES IN AMERICA, IF THERE WAS A PHENO TESTING ON THEIR SHOWER DRAINS OR BATHROOM BASINS WOULD REGISTER POSITIVE FOR THE PRESENCE SOME OF SORT OF BLOOD. AND THE PROBLEM IS IN THIS CASE THERE HAS NOT BEEN AND THERE WILL BE NOT, AS FAR AS I CURRENTLY AM AWARE, ANY SUPPLEMENT FOLLOW-UP TESTIMONY SUGGESTING THAT IN FACT BASED ON FURTHER TESTING OF BOTH THE SHOWER DRAIN AND FURTHER TESTING OF THE BATHROOM BASIN WE NOW BELIEVE THAT THERE WAS BLOOD THAT WAS RECENTLY WASHED DOWN THAT BASIN, AND THEREFORE, YOUR HONOR, YOU HAVE ANOTHER 352 PROBLEM. THEY ARE GOING TO SIMPLY TRAIPSE AROUND ON THE SCREEN THAT THERE IS A GENTLEMAN DOING A PHENOTYPE AND THEY ARE NOT GOING TO CORROBORATE THAT OR SUPPLEMENT THAT WITH OTHER TESTIMONY, EXPERT OR OTHERWISE, TO SHOW THAT AFTER THIS PHOTOGRAPH WAS TAKEN WE TOOK OUT THE PIPES, WE TESTED THE PIPES AND WE SAW IN FACT THAT THERE WAS BLOOD AND IN FACT THIS BLOOD IS RECENT BLOOD AND NOT BLOOD THAT WAS THERE FROM A DAY EARLIER OR A WEEK EARLIER OR A MONTH EARLIER. SO I THINK, YOUR HONOR, GIVEN ITS PRESENT FORM, IT IS TERRIBLY MISLEADING IN THE OPENING STATEMENT AND I WOULD URGE THE COURT TO EXCLUDE IT.
WELL, YOUR HONOR, I WOULD NOT OBJECT TO GOING BACK TO COUNSEL'S HOUSE RIGHT NOW AND TESTING THE DRAINS TO SEE IF THAT IS POSSIBLE, BUT I DON'T THINK THAT EVERYONE'S HOUSE DRAINS WILL TEST POSITIVE FOR THE PRESENCE OF BLOOD AT ANY GIVEN TIME. HOWEVER, WE HAVE HEARD COUNSEL'S ARGUMENT. THAT IS THE LIMITATIONS OF THE TEST, HE IS CORRECT, THAT WE CANNOT SAY WHEN IT WAS DEPOSITED. HOWEVER, WHEN YOU HAVE TRACES OF THIS BLOOD AND THAT IS WHAT THERE WAS, THERE IS NO FURTHER TESTING THAT CAN BE DONE, THERE ISN'T THAT MUCH. IT WASHES DOWN WITH WATER. THAT IS THE PURPOSE OF WASHING IT DOWN THE DRAIN, IS TO WASH IT AWAY, SO THERE IS TRACES OF BLOOD IN THE SHOWER IN THE BATHROOM AND THERE WAS A TRACE OF BLOOD ON THE FLOOR AS WELL. COUNSEL'S ARGUMENT GOES TO THE WEIGHT AND NOT THE ADMISSIBILITY OF THIS EVIDENCE AND COUNSEL IS FULLY ENTITLED TO ARGUE EVERYTHING THAT HE JUST HAS TO THE JURY.
KEY QUOTEYOUR HONOR, MY LEARNED COLLEAGUE, MR. UELMEN, REMINDED ME THAT A PHENO TEST IS THE SAME AS A LUMINOL TEST. IT IS A PRESUMPTIVE TEST. IT IS NOT A TEST THAT CORROBORATES THE PRESENCE OF BLOOD. AND SINCE IT IS A PRESUMPTIVE TEST, IT IS SUSCEPTIBLE TO ALL OF THE DANGERS OF MISINTERPRETATION THAT A LUMINOL TEST WOULD BE PROBLEMATIC WITH, AND THEREFORE, YOUR HONOR, BY ANALOGY, THE REASONING THAT THE COURT HAD HELD WITH THE LUMINOL TEST SHOULD HOLD FIRM FOR THE PHENO TEST. THERE WERE SOME AREAS, YOUR HONOR, WHERE THERE IS A PHENO TEST DONE OF BLOOD ON THE FOYER, TO WHICH I'M NOT OFFERING AN OBJECTION BECAUSE THERE WAS INDEPENDENT COLLECTION AND INDEPENDENT VERIFICATION OF THE PRESENCE OF BLOOD. NOT SO WITH THE BATHROOM DRAIN, NOT SO WITH THE BATHROOM BASIN. AND THEREFORE I AM LIMITING MY OBJECTION AT THIS PHASE TO THOSE TWO AREAS.
ALL RIGHT. COUNSEL, THE PROBLEM WITH THE DILEMMA YOU PRESENT TO THE COURT IS THAT WE ARE TALKING ABOUT CONDUCTING ANOTHER 402 HEARING AS TO THIS ISSUE, WHICH I AM NOT INCLINED TO DO AT THIS POINT TODAY.
COUNSEL, MY INCLINATION IS TO DIRECT THE PROSECUTION NOT TO USE THOSE TWO ITEMS IN OPENING STATEMENT SUBJECT TO A 402 HEARING ON THE PHENO TESTING. ALL RIGHT. THAT'S THE COURT'S ORDER. ALL RIGHT. ANY OTHER SHOW AND TELL OBJECTIONS WE NEED TO RESOLVE?
ALL RIGHT. NOW, THE PROSECUTION INDICATES THAT THEY HAVE NOT HAD COMPLETE ACCESS TO YOUR EXHIBITS FOR OPENING STATEMENTS, MR. DOUGLAS. ARE THOSE EXHIBITS PRESENT IN COURT?
ALL RIGHT. THEN I WOULD SUGGEST THAT IT WOULD PROBABLY BE A BETTER USE OF THE COURT'S TIME TO TAKE A BRIEF RECESS AND ALLOW COUNSEL TO LOOK AT THESE ITEMS AND THEN LODGE ANY SPECIFIC OBJECTIONS. ALL RIGHT. WE WILL STAND IN RECESS THEN FOR TWENTY MINUTES.
YOUR HONOR, CAN WE HAVE THE MONITOR PEOPLE TURN ON COUNSEL'S MONITORS SO THAT THEY CAN --
IF A DIAGRAM WAS AS GOOD AS A PHOTOGRAPH OR WAS THE SAME AS A PHOTOGRAPH, COUNSEL WOULDN'T OBJECT TO THE PHOTOGRAPHS. THE POINT IS THAT THE PEOPLE ARE TRYING TO EXPLAIN SOMETHING TO THE JURY AND WE NEED TO DO IT IN THE MOST EFFECTIVE WAY POSSIBLE.
THE REASON WHY THEY WANT TO SHOW THE PHOTOGRAPH IS TO -- IS TO GIVE SOME EMOTIONAL TEXTURE TO THE JURY, TO MR. SIMPSON'S DETRIMENT, AND I OBJECT TO THAT.
99 PERCENT OF ALL HOMES IN AMERICA, IF THERE WAS A PHENO TESTING ON THEIR SHOWER DRAINS OR BATHROOM BASINS WOULD REGISTER POSITIVE FOR THE PRESENCE SOME OF SORT OF BLOOD.
I WOULD NOT OBJECT TO GOING BACK TO COUNSEL'S HOUSE RIGHT NOW AND TESTING THE DRAINS TO SEE IF THAT IS POSSIBLE, BUT I DON'T THINK THAT EVERYONE'S HOUSE DRAINS WILL TEST POSITIVE FOR THE PRESENCE OF BLOOD AT ANY GIVEN TIME.