WE HAVE A FEW MORE MATTERS TO CONCLUDE AS WELL. ALL RIGHT. THEN WE WILL PUT THE USE OF THE VIDEOTAPE ON HOLD UNTIL WE FIND OUT THE EXISTENCE, THE WHEREABOUTS OF THE SECOND OR THIRD VIDEOTAPE. ALL RIGHT. MR. DOUGLAS, I HAVE HERE A MOTION, EX PARTE MOTION, THREE-PAGE MOTION. DO YOU WANT TO ADDRESS THAT NOW?

MR. COCHRAN.

MR. COCHRAN, DO YOU WANT TO ADDRESS THE --

CAN I GET A COPY --

SURE.

IS THAT ANOTHER EX PARTE MOTION, YOUR HONOR?

IT'S NO LONGER EX PARTE NOW. IT'S NOT EX PARTE. IT WAS FILED UNDER SEAL I GUESS BASICALLY.

MY COPY OF THE MOTION INDICATES A COPY WAS SERVED ON THE PROSECUTION.

IT WAS NOT.

THEN WHY DON'T YOU SHARE IT WITH MR. HODGMAN AND MISS CLARK.

THIS WAS JUST FILED THIS MORNING.

I UNDERSTAND THE PRESS WAS GIVEN A COPY OF IT HOWEVER.

NOT BY US.

YES, BY YOU.

NO.

NO. BY THE COURT. BY THE COURT.

WE HAVE NEVER SEEN IT.

WELL, MISS CLARK, WHEN I LOOKED AT THE -- FORGIVE ME. BUT WHEN I LOOKED AT THE MOTION, THERE'S A PROOF OF SERVICE THAT INDICATES IT WAS SERVED JANUARY 20. NOW -- SEE, I HAVE TO RELY ON THAT --

YEAH. I AGREE, YOUR HONOR.

ALL RIGHT. BEFORE YOU START CASTIGATING ME.

NO. NO. THE PEOPLE WOULD NEVER DO THAT.

PART OF THE JOB.

ALL RIGHT. MR. COCHRAN, DO YOU WANT TO ADDRESS YOUR MOTION?

I THINK --

ALL RIGHT.

NOW MAY I ADDRESS IT, YOUR HONOR?

YES.

YOUR HONOR, WHAT HAPPENED, AS I UNDERSTAND, THIS MORNING, THIS MOTION WAS FILED BY MS. SHAUN SNIDER CHAPMAN OF OUR OFFICE. WE SOUGHT TO FILE IT UNDER SEAL BECAUSE OF SECURITY CONCERNS. AND APPARENTLY THE PROSECUTION WAS NOT GIVEN ONE. IT SAYS EX PARTE AND FILED UNDER SEAL ON THE MOTION. I THINK IT WAS HANDED TO YOUR HONOR'S CLERK. IT WAS THEN APPARENTLY --

EXCUSE ME. MR. HODGMAN, MISS CLARK, DO YOU HAVE A PHYSICAL COPY OF THIS?

NO.

I HAVE ONE EXTRA. THANK YOU.

AS I UNDERSTAND THE SEQUENCE OF EVENTS, THE COURT FELT IT WAS NOT A PROPER MOTION FOR EX PARTE AND IT WAS RELEASED TO THE PRESS.

I ASSUMED IT WAS NOT EX PARTE BECAUSE YOUR PROOF OF SERVICE ON THE BACK INDICATES IT WAS SERVED ON THE PROSECUTION.

BUT IT SAYS UNDER SEAL. WE THOUGHT IT WAS UNDER SEAL. BUT THE PRESS HAD ASKED ME ABOUT IT. BASICALLY WHAT WE ARE SEEKING HERE IS, BASED UPON SOME SECURITY CONCERNS, YOUR HONOR, MR. SIMPSON BEING IN CUSTODY, WE ASKED THE COURT IF, NUMBER ONE, MR. SIMPSON COULD PARTICIPATE BY GIVING A BRIEF PORTION OF THE OPENING STATEMENT AND; TWO, THAT DURING THE COURSE OF THE BALANCE OF THE OPENING STATEMENT, THERE MAY BE TIMES AND WILL PROBABLY BE TIMES WHERE I WOULD LIKE MR. SIMPSON TO BE ABLE TO APPROACH THE JURY TO DEMONSTRATE CERTAIN THINGS THAT I THINK ARE VERY RELEVANT IN THE COURSE OF THAT OPENING STATEMENT. THE ONLY WAY THAT WE CAN APPROPRIATELY DISCUSS THIS -- AND THE LATTER PART HAS NOTHING TO DO WITH THE PEOPLE -- WOULD BE TO CLEAR THAT WITH YOUR HONOR AND YOUR HONOR'S BAILIFF, AND THAT'S THE THOUGHT WITH WHICH THIS WAS DONE.

ALL RIGHT. MR. HODGMAN, DO YOU WANT TO RESPOND TO THESE TWO ISSUES?

I DO, YOUR HONOR.

MISS CLARK WOULD LIKE TO ADDRESS THAT.

I'LL ADDRESS THIS BRIEFLY, YOUR HONOR. FIRST OF ALL, LET ME INDICATE THAT THEIR FAILURE TO SERVE US IS FURTHER INDICATION OF THE DEFENSE ATTEMPT TO HAVE THIS BE A TRIAL BY AMBUSH. WE SHOULD HAVE BEEN APPRISED OF THIS MOTION LONG AGO AND THEIR FAILURE TO SERVE US IS I THINK AN EGREGIOUS ACT ON THEIR PART. FURTHERMORE, WHAT THIS IS REALLY IS JUST AN ATTEMPT TO ASK THE COURT'S LEAVE TO ALLOW THE DEFENDANT TO TESTIFY WITHOUT BEING CROSS-EXAMINED, AND THERE IS NO SUCH RIGHT I DON'T THINK ANYWHERE IN THE COUNTRY IN OPENING STATEMENT OR PERHAPS EVEN IN THE WORLD. THERE IS NO AUTHORITY CITED IN THIS MOTION, AND OF COURSE THERE COULD NOT BE BECAUSE THERE IS NO LAW, THERE IS NO CASE NOR HAS THERE EVER BEEN A CASE IN WHICH SUCH A THING HAS BEEN ALLOWED UNDER THE CIRCUMSTANCES PROPOSED BY COUNSEL. IF MR. SIMPSON WOULD LIKE TO TESTIFY, WE WOULD BE DELIGHTED TO CROSS-EXAMINE HIM AND TO HEAR HIS TESTIMONY AT THE APPROPRIATE TIME. BUT COUNSEL'S MOTION IS SIMPLY AN EFFORT TO HAVE HIM PRESENT TESTIMONY TO THE JURY WITHOUT BEING CROSS-EXAMINED, AND THERE IS NOTHING THAT ALLOWS HIM TO DO SO UNDER THE LAW. MAY I HAVE A MOMENT, YOUR HONOR?

I WOULD PARENTHETICALLY ADD ALSO, YOUR HONOR, THAT, WHAT IS THE RELIABILITY OF HAVING MR. SIMPSON TODAY DEMONSTRATE FOR US HIS PHYSICAL LIMITATIONS THAT WOULD NOT -- IF HE INDEED HAS ANY PHYSICAL LIMITATIONS TODAY, HOW DOES THAT BEAR ON WHAT HIS CAPABILITIES WERE ON JUNE THE 12TH? THERE IS NO BEARING. AND SIMPLY ALLOWING HIM TO GET UP AND DO PHYSICAL DEMONSTRATIONS WITHOUT BEING CROSS-EXAMINED, WITHOUT ALLOWING US TO HAVE A DOCTOR EXAMINE HIM TO DETERMINE WHAT HIS STATUS IS TODAY VERSUS WHAT IT WAS THEN, THERE'S JUST NO RELIABILITY TO THE DEMONSTRATION PROFFERED BY COUNSEL. SO I WOULD INDICATE FOR ALL THE ABOVE REASONS, I CAN'T SEE HOW THIS COULD EVER BE PERMISSIBLE, HOW THIS COULD EVER BE A PROPER THING TO DO. THE PEOPLE RESPECTFULLY REQUEST THE COURT TO DENY THIS REQUEST.

WELL, ISN'T IT OFTEN TIMES COMMON PLACE IN OUR TRIAL COURTS FOR DEFENDANTS TO EXHIBIT CERTAIN TATTOOS OR PHYSICAL MARKS OR SOMETHING ABOUT THEIR PERSON THAT IS NON-TESTIMONIAL?

WHEN THEY HAVE FOUNDATIONAL SHOWING TO BACK IT UP PURSUANT TO TESTIMONY. FOR EXAMPLE, IF THEY HAVE A DEFENDANT WHO HAS A TATTOO THAT WAS NOT DESCRIBED BY AN IDENTIFICATION WITNESS, THAT WOULD BE APPROPRIATE, IF HE COULD LAY THE FOUNDATION THAT HE HAD THE TATTOO BACK ON THE DATE IN QUESTION. BUT WE'RE NOT AT THE POINT OF TAKING TESTIMONY, YOUR HONOR. WE'RE NOT IN THE TRIAL. WE'RE NOT TAKING EVIDENCE. THIS IS AN OPENING STATEMENT. THIS IS A REQUEST TO TAKE EVIDENCE IN THE OPENING STATEMENT, AND THAT'S NOT PERMISSIBLE, AND THERE'S NO FOUNDATION THAT THEY'RE GOING TO LAY WITH RESPECT TO EVIDENTIARY FOUNDATIONS IN THE OPENING STATEMENT. IT'S JUST ARGUMENT.

ALL RIGHT. MR. COCHRAN, WHAT'S THE NATURE OF THE EXHIBITION THAT YOU ARE CONTEMPLATING?

CERTAINLY --

MAY I ALSO INDICATE, HE'S ALSO PROPOSING TO DO AN INTRODUCTORY STATEMENT TO THE JURY. THAT'S ANOTHER REQUEST TO TAKE EVIDENCE, TO TESTIFY BEFORE THE JURY WITHOUT BEING CROSS-EXAMINED. THERE'S NO RELIABILITY TO WHAT THE DEFENSE OFFERS TO DO IN THIS CASE, IN THIS REQUEST WITH RESPECT TO THEIR PROFFER OF PHYSICAL LIMITATIONS, AND THEY'RE BASICALLY ASKING FOR A RIGHT OF ALLOCUTION. ALL OF WHAT THEY -- AND EVERYTHING THAT THEY WANT TO DEMONSTRATE TO THE JURY COULD BE DONE THROUGH PHOTOGRAPHS AND IS GOING TO BE DONE AS I UNDERSTAND IT, FROM WHAT I'VE SEEN, THROUGH PHOTOGRAPHS. SO THAT WOULD BE MUCH MORE RELEVANT THAN WHAT THE DEFENDANT LOOKS LIKE TODAY. I'M NOT SAYING -- I'M NOT CONCEDING THAT THEY ARE RELEVANT. BUT AT LEAST THEY'RE CLOSER IN TIME TO THE EVENTS IN QUESTION THAN WE ARE TODAY AND I CAN'T SEE WHAT THE RELEVANCE IS OF ANY OF IT.

MAY I ANSWER YOUR QUESTION NOW?

BRIEFLY. YES. THANK YOU.

THIS IS MY TIME -- YOUR HONOR, WITH REGARD TO THIS -- FIRST OF ALL, THE FACT THAT COUNSEL HAS NEVER HEARD OF A DEFENDANT GIVING OPENING STATEMENT, IT DOESN'T MEAN THAT DOESN'T HAPPEN. IT HAS IN FACT HAPPENED IN THE PAST. THE COURT HAS INDICATED TO US THAT TWO LAWYERS OR TWO PERSONS FROM EACH SIDE COULD IN FACT GIVE STATEMENTS. WE'LL START WITH THAT EXACT POINT. AND MR. SIMPSON HAS BEEN MADE AWARE OF THE LIMITATIONS OF OPENING STATEMENT. THE COURT WILL INSTRUCT THE JURORS THAT WHAT MISS CLARK SAYS IN OPENING STATEMENT OR WHAT MR. DARDEN SAYS IN OPENING STATEMENT IS NOT EVIDENCE, AND SO WE'RE NOT TRYING TO PRECLUDE THEM. IT SEEMS LIKE THEY'RE ALWAYS TRYING TO PRECLUDE US FROM DOING SOMETHING, YOUR HONOR. AND THEY TALK ABOUT THEY'RE IN THE SEARCH FOR THE TRUTH. WHAT I'VE ASKED -- AND I SPELLED IT OUT QUITE CLEARLY. MR. SIMPSON UNDERSTANDS THE RULES OF EVIDENCE FROM THAT STANDPOINT. I THINK HE HAS THE RIGHT TO DO THAT, AND THEY HAVE NO CASE SAYING HE CAN'T DO THAT. THE OTHER POINT IS THAT THEY'RE NOT EVEN INVOLVED IN THAT. IT SEEMS -- IT HAPPENS ALL THE TIME. AND SHE'S WORRIED ABOUT FOUNDATIONAL ASPECTS, YOUR HONOR. AS AN OFFICER OF THIS COURT AND MR. SIMPSON APPROACHES THE JURY, AND LET'S ASSUME ARGUENDO, THAT HE SHOWS THE JURY SOME SCARS ON HIS ARM, THAT HE CAN'T RAISE HIS ARM ABOVE A CERTAIN LIMIT. I THINK THE COURT CAN UNDERSTAND CLEARLY I WOULDN'T ASK THAT TO BE SHOWN IF THOSE SCARS DIDN'T COME FROM THE TIME HE PLAYED FOOTBALL OR SOMETHING LIKE THAT, IF HE HAS SOME PHYSICAL LIMITATIONS. CLEARLY WE'RE TALKING ABOUT PHYSICAL LIMITATIONS THAT EXISTED LONG BEFORE JUNE 12TH OF 1994. SO AGAIN, YOUR HONOR, EVERYTHING THAT COMES UP, THEY WANT TO KNOW EVERYTHING THAT WE KNOW. CERTAIN THINGS, YOUR HONOR, THEY'RE NOT ENTITLED TO KNOW. THEY BROUGHT THIS CASE. THEY MADE THIS DECISION, YOUR HONOR, AND THEY HAVE TO LIVE WITH SOME OF THESE THINGS. AND SO WHAT WE DID THIS MORNING WAS TO TRY AND PUT IT BEFORE YOUR HONOR, WHICH IS THE PROPER PLACE. THESE ARE MATTERS OF SECURITY MORE THAN ANYTHING ELSE, AND YOU ARE THE ONE THAT MAKES THAT DECISION. SO THAT'S WHAT WE'RE SEEKING TO DO.

WOULD YOU GIVE ME A LITTLE MORE EXPLANATION AS TO EXACTLY WHAT TYPE OF DEMONSTRATION OF YOUR CLIENT'S PHYSIQUE THAT YOU WISH TO BE MADE?

DOES THE COURT WANT ME TO BE BODY SPECIFIC?

YES. I MEAN, WHAT'S RELEVANT TO THIS CASE THAT THE JURY NEEDS TO SEE AT THIS POINT AND HOW DOES THAT DIFFER FROM A PRESENTATION OF EVIDENCE DURING THE COURSE OF AN OPENING STATEMENT?

I WOULD LIKE TO DO THAT -- AND I WOULD RATHER DO IT AT SIDEBAR IF I CAN.

SURE.