Sidebar: witness statement admissibility

📄 Sidebar: witness statement admissibility — Tuesday, July 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\11\SIDEBAR-WITNESS-STATEMENT-ADMI.DOC

TRIAL

▲ Day 112 of 167

◀ Redirect examination of Denise Pilnak (part 1) Administrative matters ▶

Date: Tuesday, July 11, 1995 • Utterances: 36

The parties argue over how much of a witness's written statement document should be shown to the jury after Clark displayed it on the Elmo. Cochran invokes Evidence Code 356 (the rule of completeness), arguing Clark can't show only part of the document. Ito allows the document but redacts the final three sentences — removing both the witness's opinion challenging Pablo Fenjves's timeline and any opinion about OJ's guilt.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

Okay.

# 3 MR. COCHRAN:

This is the same document. This is the second page.

# 4 THE COURT:

Miss Clark, what part are you objecting to? The last sentence?

# 5 MS. CLARK:

Right.

# 6 MR. COCHRAN:

The document--this is no different than--this is part of her statement. She didn't send the statement to us, your Honor.

# 7 MS. CLARK:

So what?

# 8 MR. COCHRAN:

It's also a prior consistent statement of the conversation with Fenjves. And you can't just put a document up and then all of a sudden when we saw the second page say she wants to keep part of it out.

# 9 THE COURT:

You are saying it's a 356 problem?

# 10 MR. COCHRAN:

Yes, your Honor.

# 11 MS. CLARK:

How can it possibly be a 356 problem? This adds nothing to the explanation of the body of the thing. This is just an addendum. At the very end is a--she contests somebody else's testimony. So--

# 12 MR. COCHRAN:

I think it's more than that.

# 13 MS. CLARK:

It's highly improper.

# 14 MR. COCHRAN:

Just cut off that part of it. I think it's entirely appropriate to have it in there.

# 15 MS. CLARK:

You know what? If her opinion of another witness' credibility is relevant, then I think that I should be able to put up the fact that she told Detective Lange on July the 12th that she thinks O.J. is guilty as hell. Her opinion comes in.

# 16 MR. COCHRAN:

How is that relevant?

# 17 MS. CLARK:

If her opinion is relevant as to the credibility or accuracy of a witness' testimony, then it's equally as relevant as to the Defendant's guilt.

KEY QUOTE

# 18 MR. COCHRAN:

Can I respond to that?

# 19 MS. CLARK:

She is not the trier of fact.

# 20 THE COURT:

Yes.

# 21 MR. COCHRAN:

That's preposterous. We're talking about a document counsel put on the board herself, then walks away and leaves out half of the document. I should be allowed to ask about the other part of the document. She marked it. The jury's seen it. The other part is a contiguous statement of what she said, and I don't object to taking part of it out, the statement about her belief about O.J.'s guilt.

KEY QUOTE

# 22 THE COURT:

Is there any value to this document other than that last sentence where she tells Pablo Fenjves she thinks he's mistaken in his times?

# 23 MR. COCHRAN:

She says no dog was barking at 10:15.

# 24 MS. CLARK:

She already testified to that.

# 25 THE COURT:

Are you saying it's useful, but as a prior consistent statement?

# 26 MR. COCHRAN:

Absolutely, your Honor.

# 27 THE COURT:

We've got everybody back.

# 28 MS. CLARK:

Your Honor, it's not a prior consistent statement. No. A prior consistent statement has to be prior to the time she made the inconsistent statement. This is subsequent to the time she made the inconsistent statement. This consistent statement was June 30th. This is January the 25th.

# 29 MR. COCHRAN:

This statement was made today. We're talking about the statements made today to counsel.

# 30 MS. CLARK:

Somebody ought to go look at the evidence code.

KEY QUOTE

# 31 MR. COCHRAN:

We all should look at the evidence code, Judge. This is the document counsel put up on the elmo. It's a prior consistent statement to the dog barking. It's very relevant.

# 32 THE COURT:

All right. I am going to allow its use with the exception of the last sentence, telling Pablo Fenjves--actually the last three sentences.

# 33 MR. COCHRAN:

I'll ask the clerk--can I ask the clerk to take it out now?

# 34 THE COURT:

Yeah. That's irrelevant.

# 35 MS. CLARK:

Then can I use--

# 36 THE COURT:

No. I just took out the opinion that you thought was offending. I'm taking out the other opinion as well.

KEY QUOTE

Temperature

tense

Key Quotes (4)

Marcia Clark

If her opinion is relevant as to the credibility or accuracy of a witness' testimony, then it's equally as relevant as to the Defendant's guilt.

Clark's tactical threat: if Cochran wants the witness's opinion about Fenjves in, Clark wants the witness's statement to Detective Lange that 'she thinks O.J. is guilty as hell' — a pressure move to get Cochran to back down.

Johnnie Cochran

That's preposterous. We're talking about a document counsel put on the board herself, then walks away and leaves out half of the document.

Core completeness argument — Clark opened the door by displaying the document, so she cannot selectively withhold portions.

Marcia Clark

Somebody ought to go look at the evidence code.

Rare moment of Clark showing exasperation; undercuts her own credibility in the sidebar when Ito ultimately rules against her on the completeness issue.

Lance A. Ito

No. I just took out the opinion that you thought was offending. I'm taking out the other opinion as well.

Ito's clean resolution: neither side gets to use the opinion portions — the witness's attack on Fenjves and her opinion of OJ's guilt both go.

Evidence (2)

Informal

Two-page witness statement document displayed on the Elmo during examination, containing the witness's account of the dog barking and her challenge to Pablo Fenjves's timeline

disputed; admitted with final three sentences redacted

Informal

Witness's statement to Detective Lange on July 12th that 'she thinks O.J. is guilty as hell'

threatened by Clark as counter-leverage; excluded by Ito

Notable Exchanges (2)

Marcia Clark•Johnnie Cochran

Clark threatens to introduce the witness's statement to Lange that OJ is 'guilty as hell' if Cochran insists on including the witness's opinion challenging Fenjves. Cochran calls the argument preposterous and holds his ground.

strategic

Marcia Clark•Johnnie Cochran

Dispute over whether the document qualifies as a prior consistent statement — Clark argues it cannot be because it postdates the alleged inconsistent statement (June 30 vs. January 25); Cochran argues it's consistent with today's testimony.

procedural

Credibility Attacks (1)

⚔ Pablo Fenjves

prior inconsistent statement / witness opinion

The disputed portion of the document contained the witness's written challenge to Fenjves's timeline for when the dog began barking — the central dispute over when the murders occurred.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 6711 • 36 utterances

Criminal Trial

Department 103