Sidebar: Simpson physical demonstration

📄 Sidebar: Simpson physical demonstration — Monday, January 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\23\SIDEBAR-SIMPSON-PHYSICAL-DEMON.DOC

TRIAL

▲ Day 4 of 167

◀ Motion: Simpson physical demonstration Motion: Simpson physical demonstration (part 2) ▶

Date: Monday, January 23, 1995 • Utterances: 24

At sidebar, defense counsel Shapiro and Cochran argued that OJ Simpson should be permitted to show the jury his knee scars and physical limitations — including four knee surgeries and chronic rheumatoid arthritis — to counter the prosecution's theory that the killer needed to be physically agile. Clark objected that the demonstration was testimonial in nature, that photographs already existed for the purpose, and that the defense had ambushed the prosecution with a last-minute motion. Judge Ito tabled the ruling until the following morning, acknowledging that opening statements would not be reached that day.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 THE COURT:

AT THE SIDEBAR.

# 3 MR. SHAPIRO:

THANK YOU, YOUR HONOR. THANK YOU FOR ALLOWING US TO COME UP HERE. AGAIN, I MAKE THIS OFFER OF PROOF TO THE COURT. THERE WILL BE -- THEY HAVE THE NAME OF A DOCTOR, FOR EXAMPLE, WHO IS AWARE THIS MAN HAD SURGERY, THIS MAN HAS HAD CHRONIC RHEUMATOID ARTHRITIS. IN ADDITION TO THAT, HE HAS PROBLEMS WITH HIS KNEES. HE CANNOT -- HE HAS GREAT PROBLEMS EVEN WALKING. YOU'VE SEEN HIM GET UP, THAT SORT OF THING. THIS IS VERY RELEVANT. HE'S HAD FOUR SURGERIES ON HIS KNEES. THIS HAS TO DO WITH -- UNDER THE PROSECUTION'S THEORY, THEY'RE GOING TO SAY, THE PERSON WHO COMMITTED THIS HAS TO BE PRETTY PHYSICALLY AGILE, HAS TO BE MOVING PRETTY QUICKLY TO DO ALL THESE THINGS WITHIN THE TIME FRAME. PART OF THE EVIDENCE IS GOING TO BE THAT HE CANNOT DO THOSE THINGS, AND I HAVE MEDICAL EVIDENCE -- WITNESSES ARE GOING TO BE HERE, AND I THINK I SHOULD BE PERMITTED TO SHOW THIS. THAT'S ALL I WANT TO DO. THERE'S A SECURITY CONCERN --

# 4 THE COURT:

YOU'RE JUST CONCERNED WITH THESE SCARS ON HIS KNEES?

# 5 MR. COCHRAN:

THAT'S WHAT THIS IS ABOUT, SCARS ON HIS KNEES, SHOULDER, SCARS ON HIS KNEES. THAT'S ALL. OBVIOUSLY WE HAVE TO TELL YOU ABOUT IT. I DON'T WANT THE BAILIFF'S TO --

# 6 THE COURT:

SCARS ON HIS KNEES?

# 7 MS. CLARK:

THEY HAVE A PICTURE OF THE SCARS ON HIS KNEES.

# 8 MR. COCHRAN:

WE DON'T.

# 9 MS. CLARK:

YES, THEY DO. I'VE SEEN THEM.

# 10 THE COURT:

COUNSEL, THE ISSUE IS, IS THIS NON-TESTIMONIAL? AND I ASSUME YOU'RE GOING TO BACK THIS UP WITH EVIDENCE?

# 11 MR. COCHRAN:

I'M GOING TO BACK THIS UP. THAT'S WHAT I AM TRYING TO SAY.

# 12 THE COURT:

YOU HAVE WITNESSES TO TESTIFY ABOUT THIS?

# 13 MS. CLARK:

FIRST OF ALL, DEFENSE HAS THOUGHT ABOUT THIS FOR SOMETIME. WE GET HIT WITH THIS AT THE LAST MINUTE. WE DIDN'T SEE THE MOTION UNTIL FIVE MINUTES AGO. WE HAD NO OPPORTUNITY TO RESPOND, TO GIVE THE COURT AUTHORITY TO THE CONTRARY. THIS IS ENTIRELY IMPROPER. FIRST OF ALL, THIS DEFENDANT IS NOT IN PRO PER. SO HE'S NOT ENTITLED TO ADDRESS THIS JURY UNLESS THE COURT --

# 14 THE COURT:

COUNSEL, AT THIS POINT, WE'RE NOT TALKING ABOUT THAT. WE'RE TALKING ABOUT THE DEMONSTRATION, SHOWING THE JURY SCARS ON HIS KNEES.

# 15 MS. CLARK:

AND THAT CAN BE DONE WITH A PHOTOGRAPH, WHICH THEY'VE ALREADY SHOWN US. MR. DOUGLAS SHOWED IT TO US ON FRIDAY. THEY HAVE PHOTOGRAPHS THEY CAN INTRODUCE FOR THAT PURPOSE. WHAT THEY ARE ASKING TO DO IS TESTIMONIAL IN NATURE BECAUSE IT'S BASICALLY GOING TO BE USED TO INFER HE COULD NOT DO CERTAIN THINGS ON JUNE THE 12TH, AND THAT DOESN'T NECESSARILY FOLLOW AT ALL.

# 16 THE COURT:

ALL RIGHT.

# 17 MS. CLARK:

JUDGE, CAN I REPLY? YOU KNOW SOMETHING? IT'S NOT FAIR. COUNSEL SIDESWIPES US, AMBUSHES US, AND THEN HE COMPLAINS WHEN WE WANT A CHANCE TO ADDRESS --

# 18 THE COURT:

WE WON'T GET TO THEIR OPENING STATEMENT TODAY IT SEEMS PRETTY CLEAR TO ME. SO I'LL GIVE YOU UNTIL TOMORROW MORNING TO ADDRESS THIS ISSUE.

# 19 MS. CLARK:

YOUR HONOR, WE NEED A CHANCE -- WE'RE IN COURT.

# 20 THE COURT:

I KNOW.

# 21 MS. CLARK:

WHEN ARE WE GOING TO HAVE TIME TO PREPARE ON IT?

# 22 THE COURT:

TONIGHT WHEN I'M PREPARING ON ALL OF THESE THINGS.

KEY QUOTE

# 23 MS. CLARK:

WE NEED TO KNOW WHAT THE COURT'S RULING IS ON THIS. SO WE NEED TO --

# 24 THE COURT:

YOU WANTED AN OFFER OF WHAT WAS GOING TO HAPPEN.

Temperature

tense

Key Quotes (4)

Robert Shapiro

UNDER THE PROSECUTION'S THEORY, THEY'RE GOING TO SAY, THE PERSON WHO COMMITTED THIS HAS TO BE PRETTY PHYSICALLY AGILE, HAS TO BE MOVING PRETTY QUICKLY TO DO ALL THESE THINGS WITHIN THE TIME FRAME. PART OF THE EVIDENCE IS GOING TO BE THAT HE CANNOT DO THOSE THINGS.

Lays out the core strategic purpose of the demonstration — directly attacking the prosecution's physical capability theory.

Marcia Clark

WHAT THEY ARE ASKING TO DO IS TESTIMONIAL IN NATURE BECAUSE IT'S BASICALLY GOING TO BE USED TO INFER HE COULD NOT DO CERTAIN THINGS ON JUNE THE 12TH, AND THAT DOESN'T NECESSARILY FOLLOW AT ALL.

Clark's legal argument: a physical display meant to draw an inference is functionally testimony, and should require the defendant to take the stand.

Marcia Clark

COUNSEL SIDESWIPES US, AMBUSHES US, AND THEN HE COMPLAINS WHEN WE WANT A CHANCE TO ADDRESS --

Captures the adversarial friction and Clark's frustration at being sandbagged on a significant evidentiary issue.

Lance A. Ito

TONIGHT WHEN I'M PREPARING ON ALL OF THESE THINGS.

Dry, matter-of-fact response to Clark asking when she'd have time to prepare — underscores the grueling pace of high-profile trial management.

Evidence (1)

Informal

Photographs of OJ Simpson's knee scars, which prosecution noted defense already possessed and had shown to them on the prior Friday

discussed as alternative to live demonstration

Notable Exchanges (2)

Johnnie Cochran•Marcia Clark

Dispute over whether defense actually possessed photographs of the knee scars — Cochran denied it, Clark flatly contradicted him, saying 'YES, THEY DO. I'VE SEEN THEM.'

adversarial

Marcia Clark•Lance A. Ito

Clark pressed for an immediate ruling and more time to prepare; Ito calmly deferred to the following morning, noting opening statements wouldn't happen that day anyway.

procedural

Objections

None recorded

Proceeding 4411 • 24 utterances

Criminal Trial

Department 103