MRS. ROBERTSON, WOULD YOU CREATE A FILE FOR JUROR NOTES, PLEASE. ALL RIGHT. FIRST ISSUE TO BE RESOLVED IS THE DEFENSE MOTION TO ALLOW MR. SIMPSON TO BRIEFLY ADDRESS THE JURY DURING THE COURSE OF DEFENSE COUNSEL'S OPENING STATEMENTS.
YOUR HONOR, THE FIRST OBJECTION INTERPOSED BY THE PEOPLE IS THAT THIS HAS NEVER BEEN DONE BEFORE, AND WE HAVE LOCATED AT LEAST TWO CALIFORNIA PRECEDENTS WHERE IT HAS BEEN DONE BEFORE. THE FIRST CAME IN PROBABLY THE FIRST CASE OF THE CENTURY OF THE CENTURY, WHICH WAS THE TRIAL OF CLARENCE DARROW HERE IN LOS ANGELES FOR JURY BRIBERY. EVEN THOUGH MR. DARROW WAS REPRESENTED BY EMINENT COUNSEL, EARL ROGERS, HE WAS ALLOWED TO DIRECTLY PARTICIPATE IN THE PRESENTATION OF THE OPENING STATEMENT AND CLOSING ARGUMENT TO THE JURY. THE SECOND EXAMPLE CAME IN 1972 IN THE TRIAL OF ANGELA DAVIS IN NORTHERN CALIFORNIA IN WHICH, ALTHOUGH SHE WAS REPRESENTED BY COUNSEL, SHE ALSO WAS ALLOWED TO PRESENT OPENING REMARKS TO THE JURY. SO IT IS NOT A QUESTION OF PROPOSING SOMETHING THAT HAS NEVER BEEN DONE BEFORE AS TO WHICH THERE IS NO PRECEDENT. THE SECOND OBJECTION RAISED BY THE PEOPLE IS THAT THEY WILL BE DEPRIVED OF THEIR RIGHT OF CROSS-EXAMINATION, AND I THINK THAT REALLY MISCONCEIVES WHAT IS BEING PROPOSED HERE. FIRST OF ALL, MR. SIMPSON WILL NOT BE TESTIFYING, AND THE STANDARD INSTRUCTION GIVEN TO THE JURY WITH RESPECT TO ALL OF COUNSEL'S OPENING STATEMENTS THAT THEY ARE NOT EVIDENCE AND NOT TO BE CONSIDERED AS EVIDENCE BY THE JURY WILL CERTAINLY APPLY AS WELL TO MR. SIMPSON'S OPENING REMARKS. BUT WHAT IS BEING PROPOSED REALLY IS NOT A PRESENTATION IN THE TRADITIONAL FORM OF AN OPENING STATEMENT. WHAT WE ARE SIMPLY PROPOSING IS THAT MR. SIMPSON BE ALLOWED TO INTRODUCE HIMSELF TO THE JURORS, TO INTRODUCE THE DEFENSE TEAM, THE LAWYERS WHO ARE REPRESENTING HIM, AND TO SIMPLY REITERATE HIS PLEA OF NOT GUILTY. NOW, OF COURSE THE PROSECUTION HAS NO OPPORTUNITY TO CROSS-EXAMINE A PLEA AND WE BELIEVE IT WOULD BE QUITE APPROPRIATE FOR THE JURY TO HEAR THE PLEA OF NOT GUILTY THAT SETS THIS TRIAL IN MOTION DIRECTLY FROM THE LIPS OF THE DEFENDANT. THIS IS NOT REALLY ALL THAT REMARKABLE A REQUEST. WHAT IT REALLY SEEKS TO DO IS TO FOCUS THE ATTENTION OF THE JURY BACK WHERE IT BELONGS IN THE MIDST OF ALL OF THIS HOOPLA, AND THAT IS ON THE DEFENDANT WHO IS ON TRIAL, TO REMIND THEM THAT WHAT IS REALLY AT STAKE IN THIS TRIAL IS ONE MAN'S FREEDOM. WE WANT THEM TO SEE WHO THAT MAN IS. WE WANT THEM TO HEAR FROM HIM VERY BRIEFLY IN TERMS OF INTRODUCING HIMSELF, INTRODUCING COUNSEL AND REITERATING HIS PLEA. THE SECOND PART OF THE MOTION SIMPLY ADDRESSES A PHYSICAL DEMONSTRATION THAT IS ROUTINELY DONE IN TRIALS, ROUTINELY DONE BY THE PROSECUTION AS WELL AS THE DEFENSE, AND AGAIN WOULD NOT INVOLVE ANY TESTIMONY, BUT SIMPLY A PREVIEW OF EVIDENCE THAT WILL BE PRESENTED IN THE COURSE OF THE TRIAL.
ALL RIGHT. MR. UELMEN, IT WAS REPRESENTED TO ME THAT THAT PREVIEW WOULD BE MERELY OF THE DEFENDANT'S KNEES REGARDING CERTAIN SURGERIES THAT HE HAS UNDERGONE AS A RESULT OF HIS ATHLETIC CAREER; IS THAT CORRECT?
ALL RIGHT. AND HAVE YOU CONTEMPLATED THE SECURITY DESIRES OF THE SHERIFF'S DEPARTMENT, THAT THEY HAVE THEIR BAILIFF IN CLOSE PROXIMITY TO MR. SIMPSON AT THE TIME THAT THIS IS DONE, AND HOW YOU WOULD DO THAT IN A MANNER THAT WOULD NOT CONVEY AN UNNECESSARILY NEGATIVE MESSAGE TO THE JURY?
WELL, THAT WAS THE REASON WE BROUGHT THIS UP IN ADVANCE, YOUR HONOR, SO THAT ADEQUATE PREPARATION COULD BE MADE TO POST A DEPUTY ON THIS SIDE OF THE COURTROOM, IF THAT IS NECESSARY, BUT IT SIMPLY INVOLVES HIM WALKING FROM ONE SIDE OF THE COURTROOM TO THE OTHER.
ALL RIGHT. AND UNFORTUNATELY THE LOGICAL PLACE TO DO THAT IS RIGHT BY PROSECUTION COUNSEL THERE.
SO WE HAVE THAT PROXIMITY PROBLEM AS WELL. HAVE YOU CONTEMPLATED THE LOGISTICS OF OUR UNFORTUNATELY SMALL COURTROOM?
WELL, IF THE PROSECUTION WANT TO JUST SWITCH SIDES WITH US, WE WILL BE GLAD TO MOVE OVER TO THIS SIDE OF THE COURTROOM.
I DON'T THINK THAT THEY HAVE ANY CONCERNS ABOUT BEING IN PROXIMITY OF THE DEFENDANT.
WELL, I JUST HAVE CONCERNS ABOUT THAT AS A SECURITY CONCERN IS ALL. ALL RIGHT. THANK YOU, COUNSEL.
I AM UNIFORMED MR. COCHRAN HAS DISCUSSED THE ISSUE WITH THE BAILIFF AND THERE IS NO PROBLEM WITH THE BAILIFF BEING IN PROXIMITY WHILE MR. SIMPSON ADDRESSES THE JURY OR DISPLAYS HIS KNEE.
FIRST OF ALL, THIS IS NOT AN OPENING THAT COUNSEL PROPOSES, IT IS SIMPLY AN ATTEMPT TO CAPITALIZE ON WHATEVER DEFENDANT'S STAR APPEAL CURRENTLY IS WITH THE JURY AND TO GET HIM TO HAVE CLOSE PROXIMITY WITH THEM TO IMPRESS THEM. WHAT IS THE PROBATIVE VALUE OF A SCAR? WHAT DOES IT PROVE TO THIS JURY IN TERMS OF HIS PHYSICAL CAPABILITIES ON THE NIGHT OF JUNE THE 12TH, 1994? IT PROVES NOTHING. IN FACT, WE ALL KNOW THAT THE MORNING OF JUNE THE 12TH HE WAS PLAYING GOLF. WE ALSO KNOW THAT WITHIN WEEKS BEFORE THE MURDER HE MADE AN EXERCISE VIDEO, SO THE PROBATIVE VALUE OF THAT SCAR IS NIL AND THE MISLEADING NATURE OF PRESENTING THAT SCAR TO THE JURY IS GREAT. THE INFERENCE THAT THE DEFENSE WILL SEEK TO DRAW FROM THAT SCAR IS THAT HE WAS INCAPABLE OF CERTAIN PHYSICAL ACTS. IF THAT IS WHAT THEY INTEND TO PRESENT, THAT IS FINE. LET THEM PRESENT TESTIMONY THAT IS CAPABLE OF CROSS-EXAMINATION. BUT TO HAVE THE DEFENDANT ESSENTIALLY TESTIFY BEFORE THE JURY WITHOUT TAKING THE WITNESS STAND AND BEING CROSS-EXAMINED IS INAPPROPRIATE. THE CASES IN WHICH THE DEFENDANTS HAVE BEEN ABLE TO ADDRESS THE JURY IN OPENING STATEMENT IN PREVIOUS OCCASIONS HAVE BEEN CASES WHERE THE DEFENDANT WAS ACTING IN PRO PER. THIS DEFENDANT IS NOT IN PRO PER. HE IS REPRESENTED BY MANY ATTORNEYS. IF HE DESIRES TO TESTIFY BEFORE THIS JURY, THEN LET HIM DO SO AS ALL WITNESSES DO ON THE WITNESS STAND AND BE SUBJECT TO FULL AND COMPLETE CROSS-EXAMINATION. CASE LAW IS COMPLETELY IN FAVOR OF THE PEOPLE'S POSITION IN THIS REGARD. PEOPLE VERSUS PEREZ, 216 CAL.APP.3D 346, IN WHICH THE DEFENDANT REQUESTED TO BE ALLOWED TO EXHIBIT HIS TATTOOS WITHOUT BEING SWORN OR GIVING TESTIMONY. THE COURT REFUSED HIS REQUEST AND RULED THAT THE EXHIBITION OF THE TATTOO WOULD BE TESTIMONIAL IF OFFERED TO IMPEACH THE TESTIMONY OF AN UNDERCOVER OFFICER, AND ESSENTIALLY THAT IS WHAT THE INJURIES NOW BEING PROPOSED TO BE DISPLAYED TO THE JURY IS BEING OFFERED TO SHOW, THAT HE COULD NOT IN FACT COMMIT CERTAIN ACTS THAT HE IS CHARGED WITH COMMITTING. IT IS TESTIMONIAL IN NATURE. LET'S MAKE NO MISTAKE ABOUT THAT. WHAT IS THE PURPOSE OTHERWISE OF DEMONSTRATING THE SCAR OR OF TALKING ABOUT OR SHOWING THE JURY WHAT HE CAN AND CANNOT DO? IT IS GOING TO GIVE HIM THE ABILITY TO LIMP UP TO THE JURY BOX, GET CLOSE TO THE JURY AND TRY AND IMPRESS THEM WITH HIS PHYSICAL PRESENCE. THIS IS NOT APPROPRIATE AND THERE IS NO LEGAL BENEFIT TO THIS IN TERMS OF WHAT IS APPROPRIATE IN A COURT OF LAW. IF THE DEFENDANT WOULD LIKE TO TESTIFY, THAT IS FINE, BUT TO DO THIS AND THEN SHIELD HIMSELF FROM CROSS-EXAMINATION, SAY, DON'T ASK ME ANY QUESTIONS, I JUST WANT TO GET UP THERE AND SHOW YOU SOMETHING, I WANT YOU TO DRAW INFERENCES FROM THIS, I WANT YOU TO TAKE EVIDENCE FROM THIS WITHOUT BEING SUBJECT TO CROSS-EXAMINATION, IS ENTIRELY INAPPROPRIATE. THE PEOPLE WOULD NOT BE ENTITLED TO DO THAT BECAUSE THERE WOULD HAVE TO BE A FOUNDATION LAID. PEOPLE VERSUS PEREZ MAKES THAT VERY CLEAR. IT INDICATED THAT IT WOULD BE IRRELEVANT AS DEMONSTRATIVE EVIDENCE AS WELL, WHICH IS WHAT THE DEFENSE CLAIMS IT IS PROPOSING HERE, ALTHOUGH THE PEOPLE DISPUTE THAT AND REALLY IT IS A TESTIMONIAL IN NATURE KIND OF THING THEY ARE PROPOSING. NEVERTHELESS, EVEN IF IT DEMONSTRATIVE, THE COURT IN PEREZ RULED THAT BECAUSE THE DEFENDANT HAD LAID NO FOUNDATION FOR THE ADMISSION OF THE EVIDENCE, IT WAS APPROPRIATELY DENIED. IN THIS CASE AS WELL WHAT THE DEFENDANT PROPOSES TO DO REQUIRES EITHER HIS PRESENCE ON THE WITNESS STAND OR SOME TESTIMONY FROM THE WITNESS STAND TO LAY A FOUNDATION FOR ITS ADMISSION. TO SIMPLY DISPLAY SOMETHING TO THE JURY WITHOUT ANY EVIDENTIARY BASIS GIVES THEM NOTHING RELIABLE AND NOTHING OF PROBATIVE VALUE. IT IS ONLY A BLATANT ATTEMPT TO IMPRESS THE JURY WITH HIS CHARISMA AND STAR APPEAL. THAT IS NOT AN APPROPRIATE VEHICLE IN THE OPENING STATEMENT. LET ME INDICATE ALSO THAT THE CASE OF PEOPLE VERSUS WONG HELD SIMILARLY. IN PEOPLE VERSUS WONG THE TRIAL COURT INDICATED THAT IT WAS IMPROPER TO HAVE THE DEFENDANT EXHIBIT HIS ARMS TO THE JURY WITHOUT FIRST BEING SWORN AS A WITNESS. IN THAT CASE 35 CAL.APP.3D 812, THE DEFENDANT IN THAT CASE WANTED TO INDICATE THAT HE WAS NOT AN ADDICT, HE HAD NO TRACK MARKS ON HIS ARMS. THE TRIAL COURT REFUSED TO ALLOW HIM TO DO SO UNLESS HE SUBJECTED HIMSELF TO CROSS-EXAMINATION. ON APPEAL THE COURT WAS UPHELD AND IT WAS DETERMINED THAT IF IT WAS A TESTIMONIAL -- IF IT WAS BEING OFFERED AS TESTIMONIAL EVIDENCE IT WAS PROPERLY REFUSED WHEN THE DEFENDANT DECLINED TO BE SWORN AS A WITNESS AND SUBJECT HIMSELF TO CROSS-EXAMINATION. IT ALSO RULED THAT IF THE OFFER WAS A DEMONSTRATIVE ONE, THEN THE TRIAL COURT WAS JUSTIFIED IN REJECTING IT ON THE BASIS THAT IT WAS IRRELEVANT. AS I HAVE INDICATED TO THE COURT YESTERDAY, HIS ARM WAS BEING OFFERED ON MAY 12, 1971, TO SHOW THE CONDITION OF HIS ARM ON JUNE 5TH, 1970. THE DEFENDANT'S CONDITION TODAY OR THE EXISTENCE OF THAT SCAR, WITHOUT LAYING A FOUNDATION AS TO WHAT THE SIGNIFICANCE OF THAT SCAR AND HOW IT IMPACTED ON HIS PHYSICAL CAPABILITIES, IS SOMETHING THAT EXISTS WITHOUT FOUNDATION. IT HAS NO PROBATIVE VALUE IN AND OF ITSELF. IF THE DEFENSE WANTS TO DO IT AS PART OF AN OPENING STATEMENT, THEY ARE GOING TO HAVE TO ALSO PROFFER SOMETHING THAT LENDS IT SOME VALUE IN TERMS OF PROBATIVE VALUE. WHAT I MEAN BY THAT IS THEY CAN OFFER A PHOTOGRAPH OF THE DEFENDANT'S KNEE, BUT SIMPLY HOLDING A PHOTOGRAPH UP ISN'T GOING TO GET THEM VERY MUCH, SHOULDN'T, BUT THE DEFENDANT -- IN TERMS OF ITS EVIDENTIARY WEIGHT, BECAUSE WHAT DOES THAT MEAN IN TERMS OF HIS PHYSICAL CAPABILITIES OR HIS LIMITATIONS? HAVING THE DEFENDANT AS WELL GET UP TO TELL THE JURY THAT HE IS NOT GUILTY IS ANOTHER ATTEMPT, BLATANT ATTEMPT TO HAVE THE DEFENDANT ADDRESS THE JURY WITHOUT BEING CROSS-EXAMINED. IT IS LIKE ISSUING A BLANKET DENIAL AND THEN SAYING YOU CAN'T ASK ME ANY QUESTIONS. IN A COURT OF LAW, YOUR HONOR, WHEN A DEFENDANT SEEKS TO TESTIFY AND AN ISSUES A BLANKET DENIAL, THAT OPENS THE DOORS TO CROSS-EXAMINATION AS WIDE AS THEY CAN GO AND THE PEOPLE ARE PERMITTED VERY FAR AND WIDE-RANGING CROSS-EXAMINATION. THE DEFENDANT SEEKS TO DO THAT IN THIS CASE AND PRECLUDE ALL CROSS-EXAMINATION. HE SEEKS TO PROTEST HIS INNOCENCE AND YET NOT ALLOW ANYONE TO ASK HIM ANY QUESTIONS. THAT IS ENTIRELY INAPPROPRIATE, AND THE COURT I'M SURE IS VERY WELL AWARE OF THAT. IF HE WAS IN PRO PER, HE COULD GET UP AND SAY WHATEVER HE WANTED TO; HE IS NOT.
1348 AND GOES ON TO 1349. THE HOLDING -- 1348 AND 9 GIVE THE FACTUAL EXPOSITION AND 1350 GIVES THE RULING.
THE SUGGESTION THAT A PLEA OF NOT GUILTY SUBJECTS A DEFENDANT TO CROSS-EXAMINATION IS SIMPLY NOT THE LAW. THE PLEA OF NOT GUILTY IS WHAT SETS THIS TRIAL IN MOTION AND PUTS THE BURDEN ON THE PEOPLE OF PROVING GUILT BEYOND A REASONABLE DOUBT. IT IS REALLY INCREDIBLE TO SUGGEST THAT SOMEHOW THE JURORS WILL BE PREJUDICED BY ACTUALLY HEARING THE PLEA OF NOT GUILTY FROM THE MOUTH OF THE DEFENDANT HIMSELF. ACTUALLY, THE ONLY PERSON WHO CAN ENTER THE PLEA IS THE DEFENDANT HIMSELF AND THAT PLEA IS WHAT SETS THESE PROCEEDINGS IN MOTION. AND WE ALSO BELIEVE IT IS QUITE APPROPRIATE AND DOES NOT OPEN UP ANY DOORS TO CROSS-EXAMINATION SIMPLY TO HAVE THE JURY OBSERVE THE DEFENDANT AND HEAR HIS PLEA OF NOT GUILTY FROM HIS OWN LIPS. THE SUGGESTION THAT THIS IS SOME SORT OF PLOY TO CAPITALIZE ON THE DEFENDANT'S CHARISMA OR CELEBRITY STATUS, IT IS JUST THE OPPOSITE. IT IS JUST THE OPPOSITE. WE DO NOT WANT THIS JURY TO VIEW THE DEFENDANT IN TERMS OF A CELEBRITY. WE WANT THEM TO VIEW HIM AS A HUMAN BEING, AND THAT SUGGESTS THE GREATER NEED IN THIS CASE TO DO IT, BECAUSE THERE IS JUST SO MUCH STAR STRUCK QUALITY ABOUT THIS -- ABOUT THIS WHOLE PROCEEDING AND WE THINK IT WOULD BE VERY HEALTHY TO REMIND EVERYONE, ESPECIALLY THE JURY, THAT WHAT IS AT STAKE HERE IS SIMPLY THE LIBERTY OF A MAN, A HUMAN BEING, AND HERE HE IS, O.J. SIMPSON. IN TERMS OF THE LACK OF FOUNDATION FOR THE PHYSICAL CAPABILITY OF THE DEFENDANT, THAT WILL BE PRESENTED IN THE COURSE OF TESTIMONY. OBVIOUSLY THE OPENING STATEMENT DOESN'T PRESENT ALL OF THE EVIDENCE. IT IS A PREVIEW OF WHAT IS TO COME, AND THIS IS AN IMPORTANT PART OF THE EVIDENCE THAT WE WOULD LIKE TO PREVIEW FOR THE JURY. WHEN IT IS PRESENTED IN THE COURSE OF TRIAL THERE WILL BE FOUNDATIONAL TESTIMONY FROM MR. SIMPSON'S PHYSICIAN AS TO HIS PHYSICAL CAPABILITY TO CORROBORATE THE PHYSICAL DEMONSTRATION.
KEY QUOTEALL RIGHT. I HAVE REVIEWED THE CASES CITED BY THE PEOPLE, AND THE ONLY CASES THAT I COULD FIND THAT WERE OF INTEREST WERE A CASE OUT OF NEW YORK AND A CASE OUT OF THE SUPREME COURT OF MISSISSIPPI THAT DEALT SPECIFICALLY WITH THE REQUEST OF A REPRESENTED CLIENT TO ADDRESS DIRECTLY A JURY. THE MOTION TO ALLOW THE DEFENDANT TO DIRECTLY ADDRESS THE JURY WILL BE DENIED. THE MOTION TO ALLOW HIM TO EXHIBIT TO THE JURY HIS KNEE INJURIES OR THE RESULT OF THE SCARRING AND THE SURGERIES WILL BE ALLOWED. ALL RIGHT. COUNSEL, WE NEED TO RESOLVE THEN THE LAST REMAINING ISSUES ON THE EXHIBITS AND WE WILL BE PREPARED TO GO FORWARD WITH OPENING STATEMENTS. MR. DOUGLAS.
WE DO NOT WANT THIS JURY TO VIEW THE DEFENDANT IN TERMS OF A CELEBRITY. WE WANT THEM TO VIEW HIM AS A HUMAN BEING, AND THAT SUGGESTS THE GREATER NEED IN THIS CASE TO DO IT.
IT IS ONLY A BLATANT ATTEMPT TO IMPRESS THE JURY WITH HIS CHARISMA AND STAR APPEAL. THAT IS NOT AN APPROPRIATE VEHICLE IN THE OPENING STATEMENT.
HE SEEKS TO PROTEST HIS INNOCENCE AND YET NOT ALLOW ANYONE TO ASK HIM ANY QUESTIONS. THAT IS ENTIRELY INAPPROPRIATE.
THE SUGGESTION THAT A PLEA OF NOT GUILTY SUBJECTS A DEFENDANT TO CROSS-EXAMINATION IS SIMPLY NOT THE LAW.