Sidebar: suspicious incidents and admissibility

📄 Sidebar: suspicious incidents and admissibility — Monday, January 30, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JAN\30\SIDEBAR-SUSPICIOUS-INCIDENTS-A.DOC

TRIAL

▲ Day 8 of 167

◀ Opening statement — Johnnie Cochran (part 2) Opening statement — Johnnie Cochran (part 3) ▶

Date: Monday, January 30, 1995 • Utterances: 36

Defense attorney Cochran previews three suspicious incidents he wants to introduce — a near-carjacking in Orange County on May 8, an open kitchen door at Rockingham on June 11, and persistent foreign-language phone calls that led Simpson to install Star 69 on June 2. The court largely shuts him down: the carjacking story lacks a competent witness, the children's observations lack discovery, and even Kathy Randa's Star 69 testimony is limited to the bare fact of installation — not the reason Simpson requested it.

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

# 2 THE COURT:

WE ARE AT SIDEBAR. MR. COCHRAN.

# 3 MR. COCHRAN:

I WAS GOING TO INDICATE THAT THERE WILL BE EVIDENCE OF SUSPICIOUS THINGS THAT HAVE HAPPENED TO MR. SIMPSON IN THE MONTH BEFORE THIS INCIDENT THAT I WAS GOING TO ALLUDE TO BRIEFLY NOW. I THOUGHT I WOULD TELL COUNSEL WHAT IT WAS. AND THEY ARE, ON MAY 8, ON HIS WAY DOWN TO ORANGE COUNTY, HE WAS SURROUNDED BY THREE DIFFERENT CARS. ONE PULLED BEHIND HIM, ONE PULLED RIGHT BESIDE, ONE PULLED IN FRONT OF HIM IN AN EFFORT HE THOUGHT TO CARJACK HIM. BUT HE HELD UP HIS CELLULAR PHONE AND FINALLY THESE PEOPLE SPED AWAY. THAT ON JUNE 11TH, AFTER BEING AT A CHARITABLE DINNER, HE CAME HOME AFTER HAVING HIS ALARM OFF, AND HE -- LEAVING WITH HIS ALARM OFF, HE FOUND HIS KITCHEN DOOR OPEN. AND FOR A CONSIDERABLE PERIOD OF TIME, HE HAD BEEN FINDING -- HAD BEEN RECEIVING NUMEROUS PHONE CALLS GENERALLY IN SPANISH OR A FOREIGN LANGUAGE, SO MUCH SO THAT ON JUNE 2ND, HE HAD REQUESTED AND HAD ARRANGED TO HAVE THIS STAR 69 PUT ON HIS PHONE THERE AT THE ROCKINGHAM RESIDENCE SO YOU CAN FIND OUT WHO'S CALLING YOU. THESE ITEMS, I WAS GOING TO LAUNCH INTO THAT JUST BRIEFLY. I THINK THE EVIDENCE WILL SHOW THAT --

# 4 MS. CLARK:

DOES COUNSEL INTEND TO PROVE ANY OF THE ABOVE WITHOUT CALLING MR. SIMPSON?

# 5 MR. COCHRAN:

WE WILL BE CALLING KATHY RANDA, WHO IS ON EVERYBODY'S WITNESS LIST. SHE IS THE ONE WHO IN FACT ORDERED THE STAR 69. WITH REGARD TO THE INCIDENT DOWN IN ORANGE COUNTY, HE WENT ON DOWN THERE, TOLD YOUR STAR WITNESSES, THE BROWN'S, ABOUT HAVING BEEN ALMOST ABDUCTED OR CARJACKED.

# 6 MS. CLARK:

YOU ARE SAYING --

# 7 MR. COCHRAN:

LET ME FINISH -- CARJACKED OR -- AND WITH REGARD TO THE INCIDENT ON JUNE 11TH, WHEN HE CAME HOME, HIS CHILDREN -- BECAUSE HE TALKED TO EVERYBODY ABOUT THE FACT THAT THE DOOR OF THE KITCHEN WAS OPEN, SO THE CHILDREN ARE ALSO AWARE OF IT.

# 8 MS. CLARK:

MORE HEARSAY.

# 9 THE COURT:

IF THE CHILDREN ARE INDEPENDENTLY AWARE OF IT --

# 10 MR. COCHRAN:

THEY ARE INDEPENDENTLY AWARE.

# 11 THE COURT:

-- OTHER THAN STATEMENTS BY THE DEFENDANT, THEY CAN TESTIFY TO THE FACT OF -- WELL, MAYBE.

# 12 MR. DARDEN:

WHERE IS THE DISCOVERY ON THAT?

# 13 MS. CLARK:

WHERE IS THE DISCOVERY ON THAT?

# 14 MR. COCHRAN:

I HAVE NO REPORT ON THAT.

# 15 MS. CLARK:

ON WHAT THE KIDS SAW?

# 16 MR. COCHRAN:

I HAVE NO REPORT ON THAT. I CAN TELL YOU WHAT THESE KIDS SAW, BUT I DON'T HAVE ANY DISCOVERY ON THAT.

# 17 MS. CLARK:

WHY NOT?

# 18 MR. COCHRAN:

WELL, WE LIVE IN A DIFFERENT WORLD. I DON'T HAVE DISCOVERY.

KEY QUOTE

# 19 THE COURT:

HOW ARE YOU GOING TO GET IN UNLESS YOUR CLIENT TESTIFIES ABOUT THE CARJACKING BECAUSE IT'S NOT AN ADMISSION.

# 20 MR. COCHRAN:

THE CARJACKING I THINK --

# 21 THE COURT:

THEY WOULD HAVE TO OFFER IT.

# 22 MR. COCHRAN:

WELL, HE DID APPROACH SOMEBODY AND TALK ABOUT IT, BUT I'M NOT SURE I CAN GET THAT PERSON -- AT A MALL IN ORANGE COUNTY. BUT I'M NOT SURE I CAN GET THAT PERSON.

# 23 THE COURT:

WHY DON'T YOU STAY AWAY FROM THAT STUFF.

KEY QUOTE

# 24 MR. DARDEN:

STAY AWAY FROM ALL OF IT.

# 25 THE COURT:

UNLESS YOU CAN --

# 26 MR. COCHRAN:

EVEN ABOUT THE PHONE?

# 27 THE COURT:

THE PHONE, STAR 69, KATHY RANDA, IF SHE'S THE ONE THAT ACTUALLY ORDERED THAT, SHE COULD TESTIFY TO THAT.

# 28 MS. CLARK:

BUT SHE CAN'T TESTIFY TO WHY BECAUSE IT'S IRRELEVANT.

# 29 MR. COCHRAN:

IT'S NOT IRRELEVANT.

# 30 THE COURT:

SHE CAN TESTIFY THAT AT MR. SIMPSON'S REQUEST, IT GOT PUT ON THE PHONE. THAT'S ALL SHE CAN TESTIFY TO.

# 31 MS. CLARK:

ACTUALLY, SHE CAN'T TESTIFY, YOUR HONOR, TO THE FACT IT WAS MR. SIMPSON'S REQUEST. THAT'S HEARSAY.

KEY QUOTE

# 32 THE COURT:

I'M SURE SHE CAN.

# 33 MS. CLARK:

NO. WHAT I MEAN IS --

# 34 THE COURT:

THERE'S AN EXCEPTION BECAUSE IT EXPLAINS WHY YOU DID SOMETHING, NON-HEARSAY PURPOSE.

KEY QUOTE

# 35 MS. CLARK:

RIGHT. BUT IN THAT CONTEXT THOUGH, WOULD SHE BE PERMITTED TO TESTIFY WHAT HE TOLD HER, AS TO --

# 36 THE COURT:

NO.

Temperature

tense

Key Quotes (4)

Johnnie Cochran

WE LIVE IN A DIFFERENT WORLD. I DON'T HAVE DISCOVERY.

Cochran candidly admits he has no reports on what the children witnessed — a remarkable concession that undercuts his ability to get the evidence in.

Lance A. Ito

WHY DON'T YOU STAY AWAY FROM THAT STUFF.

Ito effectively kills the carjacking narrative before it reaches the jury, finding no reliable path to admission.

Marcia Clark

ACTUALLY, SHE CAN'T TESTIFY, YOUR HONOR, TO THE FACT IT WAS MR. SIMPSON'S REQUEST. THAT'S HEARSAY.

Clark moves to strip even the narrowly permitted Star 69 testimony of its context, limiting how much the jury would understand about why it was installed.

Lance A. Ito

THERE'S AN EXCEPTION BECAUSE IT EXPLAINS WHY YOU DID SOMETHING, NON-HEARSAY PURPOSE.

Ito identifies the verbal act / non-hearsay use exception but still limits Randa to the bare fact of installation, not Simpson's stated reasons.

Evidence (3)

Informal

Star 69 call-return service installed on Simpson's Rockingham phone, ordered by assistant Kathy Randa on June 2 at Simpson's request due to suspicious foreign-language calls

discussed; Randa permitted to testify to the bare installation fact only

Informal

Alleged carjacking/abduction attempt in Orange County on May 8 — three cars surrounding Simpson's vehicle

discussed; ruled inadmissible absent a competent witness

Informal

Open kitchen door at Rockingham found on June 11 after Simpson returned from a charitable dinner with alarm off

discussed; admissibility through children's testimony left unresolved

Notable Exchanges (2)

Johnnie Cochran•Marcia Clark•Lance A. Ito

Cochran attempts to lay out a pattern-of-threat narrative for Simpson in the month before the murders. Clark immediately presses on witness availability and hearsay; Darden and Clark jointly demand discovery that Cochran admits does not exist. Ito progressively forecloses each avenue.

strategic

Lance A. Ito•Marcia Clark

Brief but sharp exchange on whether Kathy Randa can testify to Simpson's request as a verbal act / non-hearsay statement. Ito finds the exception but still limits her testimony to the installation fact, not Simpson's articulated reason.

procedural

Objections

2 objections (1 sustained, 0 overruled)

Proceeding 4438 • 36 utterances

Criminal Trial

Department 103