Sidebar: pheno testing

📄 Sidebar: pheno testing — Wednesday, January 25, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\25\SIDEBAR-PHENO-TESTING.DOC

TRIAL

▲ Day 6 of 167

◀ Opening statement — Johnnie Cochran (part 5) Opening statement — Johnnie Cochran (part 6) ▶

Date: Wednesday, January 25, 1995 • Utterances: 31

During a sidebar, Judge Ito confronted Johnnie Cochran for appearing to reference phenolphthalein (presumptive blood) testing that had been previously excluded from evidence at the defense's own request. Cochran insisted he was only describing the scope of the search, not the test results. The parties negotiated a compromise: Cochran would be permitted to tell the jury there was a positive presumptive test, with full discussion deferred to the evidence phase.

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

# 2 THE COURT:

ALL RIGHT. WE ARE AT THE SIDEBAR. I THOUGHT WE WERE NOT GOING TO TALK ABOUT THE PHENO TESTING.

# 3 MR. COCHRAN:

I DIDN'T TALK ABOUT IT. I SAID --

# 4 MR. HODGMAN:

YES. YOUR HONOR, THE POINT IS, WE HAD THE PRESUMPTIVE TEST EVIDENCE, WHICH WAS EXCLUDED AS THE COURT WILL RECALL, AND NOW COUNSEL RAISES IT. THAT IS PATENTLY UNFAIR.

# 5 MR. COCHRAN:

WHAT I THOUGHT I WAS TRYING TO SAY WAS THAT THEY SEARCHED THE HOUSE. I DIDN'T SAY WHAT HAPPENED.

# 6 THE COURT:

NO.

# 7 MR. COCHRAN:

THEY SEARCHED THE PIPES.

# 8 THE COURT:

YOU MENTIONED SINKS AND TRAPS.

# 9 MR. COCHRAN:

I DIDN'T SAY ANYTHING ABOUT ANY PHENO TESTING. I JUST SAID SEARCH.

# 10 THE COURT:

NO. FAIR IS FAIR HERE, BECAUSE THEY HAD PRESUMPTIVE TESTING FOR BLOOD, AND I TOLD YOU NOT TO USE -- TOLD THEM NOT TO USE IT AT YOUR REQUEST, AND IT'S NOT FAIR FOR YOU TO BRING THAT UP.

KEY QUOTE

# 11 MR. COCHRAN:

MAY I -- WILL THE COURT ALLOW ME TO SAY THERE WAS PHENO TESTS TAKEN TO EXPLAIN THAT?

# 12 MR. HODGMAN:

YOUR HONOR, WE ASK FOR A MOTION TO STRIKE AND ADMONISHMENT TO THE JURY. THAT IS IN DIRECT VIOLATION OF THE COURT'S ORDER.

# 13 MS. CLARK:

SO ADVISE THE JURY THAT THE PEOPLE WERE PRECLUDED FROM MENTIONING THE EXISTENCE OF POSSIBLE PHENO TESTS WITH THE SINK AND THE SHOWER.

# 14 THE COURT:

ALL RIGHT. THERE'S A REQUEST FOR A COMFORT BREAK.

# 15 MR. COCHRAN:

I THOUGHT SHE SAID YESTERDAY THEY LOOKED AT THE PIPES IN OPENING STATEMENT.

# 16 THE COURT:

NO. NO. REMEMBER, I TOLD THEM NOT TO.

# 17 MR. COCHRAN:

ABOUT THE PHENO TESTING BECAUSE OF OTHER THINGS. I DIDN'T SAY -- I DON'T WANT TO MISLEAD THE JURY. IF THE COURT WILL ALLOW ME TO SEE IF I CAN CLEAR IT UP. IF I DON'T -- I'M NOT TRYING TO MISLEAD ANYBODY ON THIS OBVIOUSLY. I'M TRYING TO POINT OUT THEIR SEARCH, YOUR HONOR, IN THIS HOUSE FOR BLOOD THROUGHOUT. THAT'S ALL I'M TRYING TO DO.

# 18 THE COURT:

ALL RIGHT. WELL, WHY DON'T YOU CLEAR IT UP BY SAYING THE PROSECUTION DID DO PRESUMPTIVE TESTS.

# 19 MR. COCHRAN:

OKAY. FOR BLOOD. I HAVE NO PROBLEM WITH THAT.

# 20 MR. HODGMAN:

DO YOU RECALL WHERE IT WAS FOUND?

# 21 MR. COCHRAN:

NO.

# 22 MS. CLARK:

IN THE DRAIN OF THE SHOWER AND IN THE DRAIN OF THE SINK IN HIS BATHROOM; ALSO ON HIS BATHROOM FLOOR.

KEY QUOTE

# 23 MR. COCHRAN:

BUT THEY DID DO PRESUMPTIVE TESTS -- I'LL SAY THEY WERE PERMITTED TO --

# 24 THE COURT:

WHY DON'T YOU JUST SAY THERE WAS A PRESUMPTIVE TEST THAT CAME BACK POSITIVE, BUT THEN, "WE'LL DISCUSS WHAT THAT MEANS IN THE EVIDENCE."

# 25 MR. COCHRAN:

THAT'S FINE.

# 26 MR. SHAPIRO:

CAN WE GO ONE STEP FURTHER AND SAY WE HAVE EXPERT TESTIMONY THAT WILL TESTIFY -- DR. HENRY LEE WILL TESTIFY THAT IF THEY WENT TO EVERY SHOWER AND DRAIN IN THE UNITED STATES, YOU WOULD GET POSITIVE RESULTS?

# 27 THE COURT:

NO. FAIR IS FAIR. WE'VE PRECLUDED THEM FROM BRINGING THAT UP IN FRONT OF THE JURY. JUST TELL THEM IT'S THERE, WE'LL DISCUSS IT LATER.

KEY QUOTE

# 28 MR. HODGMAN:

I THINK IT WOULD ONLY BE FAIR GIVEN THE INVESTIGATIVE NATURE OF THE CASE TO STATE THERE WAS A POSITIVE PHENO TEST FOR SUBSTANCE WHICH COULD INCLUDE BLOOD.

# 29 MR. COCHRAN:

YEAH. THAT'S FAIR. NO PROBLEM.

# 30 THE COURT:

MR. COCHRAN, WE'RE MISSING ONE OF OUR JURORS, COMFORT BREAK. GO BACK, TAKE YOUR SEATS, AND WHEN THEY COME BACK, WE'LL RESUME.

# 31 MR. COCHRAN:

THANK YOU, YOUR HONOR

Temperature

tense

Key Quotes (4)

Lance A. Ito

NO. FAIR IS FAIR HERE, BECAUSE THEY HAD PRESUMPTIVE TESTING FOR BLOOD, AND I TOLD YOU NOT TO USE -- TOLD THEM NOT TO USE IT AT YOUR REQUEST, AND IT'S NOT FAIR FOR YOU TO BRING THAT UP.

Judge sharply reminds Cochran that the exclusion of pheno test evidence was the defense's own doing — making the current complaint ring hollow.

Marcia Clark

IN THE DRAIN OF THE SHOWER AND IN THE DRAIN OF THE SINK IN HIS BATHROOM; ALSO ON HIS BATHROOM FLOOR.

Clarifies exactly where the positive presumptive blood tests were found — Simpson's own bathroom — when Cochran admitted he didn't recall.

Robert Shapiro

DR. HENRY LEE WILL TESTIFY THAT IF THEY WENT TO EVERY SHOWER AND DRAIN IN THE UNITED STATES, YOU WOULD GET POSITIVE RESULTS?

Shapiro attempts to get the defense's exculpatory spin (false positives are ubiquitous) included in the curative instruction, but Ito shuts it down as overreach.

Lance A. Ito

NO. FAIR IS FAIR. WE'VE PRECLUDED THEM FROM BRINGING THAT UP IN FRONT OF THE JURY. JUST TELL THEM IT'S THERE, WE'LL DISCUSS IT LATER.

Ito refuses to let the defense turn the curative instruction into a preview of their expert testimony — symmetry enforced both ways.

Evidence (1)

Informal

Phenolphthalein (presumptive) blood tests conducted on shower drain, sink drain, and bathroom floor at Simpson's Rockingham estate — positive results

discussed; previously excluded; parties negotiated limited disclosure to jury

Notable Exchanges (3)

Lance A. Ito•Johnnie Cochran

Cochran argued he only referenced the search of pipes and sinks, not the test results; Ito was unconvinced and held that mentioning sinks and traps in context crossed the line given the prior exclusion order.

tense/strategic

Robert Shapiro•Lance A. Ito

Shapiro tried to expand the curative statement to include Dr. Henry Lee's planned testimony that positive pheno results occur universally; Ito flatly refused on symmetry grounds.

strategic/denied

William Hodgman•Lance A. Ito

Hodgman pushed for a jury admonishment and motion to strike; Ito channeled the dispute into a negotiated curative instruction instead.

procedural

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 4491 • 31 utterances

Criminal Trial

Department 103