All right. Back on the record in the Simpson matter. All parties are again present. Deputy Magnera, let's have the jurors, please.
Excuse me, your Honor. Does the Court want to hash out this video because I've got maybe two more minutes, three more minutes before we get to the video.
Your Honor, there are several videos. First video involves this exercise workout. We have a video that is of the tape--taping sessions. You can divide it into two category. The first part, which I think is roughly 40 minutes, is Mr. Simpson doing take after take of the introduction, running through the, for lack of a better term, spiel that is going to be the introduction for the actual exercise portion of the tape.
The remaining little less than an hour are the takes of the exercise itself. I have no problem if Mr. Shapiro wants the whole video shown, although I think quite frankly, the first 40 minutes of the speil take after take is not really terribly relevant to this witness except for hand motions. But I would intend to start with the exercise portion and let the jury see the exercise portion, which is directly relevant to this witness, who has testified with respect to what he believes to be limitations on the part of Mr. Simpson, characterizes them, as the Court well has heard over the last day and a half or so. So that would be the way I would intend to go. There is then the commercial product that is produced, which is cut of course from the taping segments and which include some things that are not in the taping segment. As an offer of proof--Mr. Shapiro was interested in an offer of proof. The--
Your Honor, that's not--we're not interested in an offer of proof. We're interested in a proper foundation.
Well, your Honor, it will be laid on rebuttal. Obviously I can't lay a foundation at this time for this witness, but I can certainly make an offer of proof to the Court that we will lay a foundation which permits this to be used to question this witness. I don't think we are required to bring--oh, by the way, I've been told by Miss Clark the trainer who's involved in this was subpoenaed by the Defense for Wednesday. But setting even that aside, the law does not require us to lay the foundation first. We can make an offer of proof that we will lay the foundation. Mr. Walker is in fact the photographer. He was present for all three days, May 25th, May 26th, May 27th of 1994, roughly 16 days, 17 days, 18 days before the murders. He was the director of photography for the videotaping of an aerobic exercise production featuring Mr. Simpson. The taping lasted approximately 12 to 16 hours daily on all three days. He was on the set at all times during the taping. He stated the first day consisted of indoor aerobic exercises featuring Mr. Simpson. And I believe that is what is going to be on the tape that we have to play first. The second and third day consisted of videotaping Simpson--Mr. Simpson swinging a golf club and playing basketball. Some of that is in the commercial tape that is sold to the public. That's the foundation--and that this fairly and accurately--this videotape fairly and accurately depicts the takes of the aerobic exercises. It seems to me that's the foundation we need to lay and we will be able to lay it when it is our opportunity to call a witness in our rebuttal case.
Yes. And I've been reading from a summary of an interview with Mr. Walker at 10 o'clock this morning. And this was at my request of Mr. Yochelson because again, I got involved later on in the process and it was my request that Mr. Walker be interviewed.
There is one other video that involves a motivational speech made by Mr. Simpson on March 31 of 1994 at the Juice Plus convention in Dallas. And the portion which I believe is the only portion relevant and under 356, the remainder is not, deals with Mr. Simpson's comments regarding his health. And I do have a transcript of that if the Court wishes to take a look at it.
The foundation for this is an interview with Mr. Albert J. Martin, president of national safety association, the distributor for Juice Plus, who's the one who identified Mr. Simpson as the speaker at this convention. And this is the speech that he gave.
And that this videotape is a videotape of that speech given by the Defendant on May 31st?
I believe--in the summary of the interview that was done--and this is before I got involved. So it was a taped interview, but I did not have an opportunity for input on the questions of Mr. Martin. The statement from Mr. Martin says, "In March, he spoke at our conference in Dallas, Texas." This is a self-authenticating tape, your Honor, because Mr. Simpson is speaking--I would represent to the Court--and the Court could look at the video if there's any question or read the transcript, that it's clear that this is in fact what Mr. Martin is talking about. Mr. Simpson is a motivational speaker at a Juice Plus convention in Dallas.
This is March. The motivational speech is March 31, `94. And for the record, what--and I'll give you the full transcript. Mr. Simpson talks about his arthritis. "I was at a time where I was having a pretty tough time because I got hit by what they might call, some of you might have it, it's rheumatoid arthritis. I had the first, the beginnings of rheumatoid arthritis. I was really having--I was having really a tough time. I actually had mornings where I could not open my door. I could not turn my wrist because my wrist, my fingers, my elbows would all get swollen up.
"They had me on--you name it--Napacin, Indocin, Motrin, I, I had so much Motrin you couldn't believe it, you know. Every day this was my life. My neighbor's a guy named Frank Jobe, who may be the greatest orthopedic surgeon in the world, he's the guy that rebuilt Tommy John's arm and stuff; he's tellin' me about this simple little operation that they can do with both my wrists to relieve some of the pain. And I know this is something we don't really get into with this product, uh, we can't really talk about. So when he's telling me about all this stuff, and I'm thinking about it, because one thing I can't do anymore, I had gone to a nutritionist, is drink orange juice." And he talks about why he can't drink orange juice. "And I was one of these guys that drink a quart of orange juice every day. So as he's telling me about it, I said, you know, I'm gonna have to try this stuff." And the stuff is the Juice Plus. "I said I'll call home and get them to send it to me. He said, no, I got it right here, he had a whole bag of it right there.
"So for the next few months, along, once again, with changing my diet and stuff, I started taking regularly Juice Plus and started feeling, I don't know if it was mind over matter, if it was a mental thing, but almost immediately, I started feeling better. All of a sudden, I was starting to get another 10 yards on my drive." And having viewed the video, Mr. Simpson makes a gesture as if he's swinging a golf club. "When I was--and then before I knew it, I just start skippin the Napacin and skippin the Indocin and skippin the pain pills, uh, the Advil. I mean I was one of these guys who was on six or seven Advils a day, you know, until today when I don't have to take anything. And my thought at the time was--I contacted Smokey, who is--
All right. Mr. Kelberg, the two issues are foundation for the tape and whether or not something in March of `94 is relevant to issues in June of `94. Those are the two concerns I have.
Will, I think, your Honor, the question is, as a foundational fact, a 403 preliminary fact as to whether it's relevant. That is, is there any tendency in reason for a rational fact finder, a juror, to say that if in fact Mr. Simpson is saying he had an arthritic problem before, but he changed his diet and he's on this Juice Plus and he's feeling great, that that is relevant to assess whether he was capable less than two months later of murdering these two people. I think, given that it is a foundational fact which is at the lowest level of the burden of introducing evidence, that it clearly is relevant. It does have a tendency in reason. We've heard Dr. Huizenga talk about Mr. Simpson coming in on the 15th walking like Tarzan's grandfather, and we've got Mr. Simpson less than two months earlier saying he's feeling great, he's off the drugs, he's getting 10 yards more on his golf swing. It will be for the jury to decide. It may well be that the jury decides that Mr. Simpson was lying to those people at that convention, that in fact maybe he did have intermittent episodes of arthritis. But the fact he would lie is itself relevant, lie with respect to his condition, when one is evaluating whether he played through pain and was willing to lie if necessary when it was to his advantage or whether he would be fully candid, in which case, if he was, he wasn't having a problem less than two months earlier. So under either circumstance, it's relevant, and I submit given what I've indicated and given what the document itself will show, document in the generic sense I think of evidence code section 250, 240, a writing, including a videotape, that it's self-authenticating. But Mr. Martin I'm certain, given the summary of the interview that I indicated to the Court, would be able to say this is the speech that Mr. Simpson gave March 30, 31 of 1994.
Thank you very much, your Honor. With regard to the minimum or minimal maintenance video that Mr. Simpson participated in, it is our position that if it is played, it should be played in its entirety.
No. That's the--what Mr. Kelberg has incorrectly referred to as an aerobic or exercise video. It is more a geriatric type of maintenance that Mr. Simpson endorsed and does not perform very well in. We--if that is shown, it should be shown from the beginning to the end without any breaks, and all of the outtakes that were done should be shown to the jury so they can see all the rest periods, all the breaks that had to be taken, all the reshooting that had to be done where you will see--probably the most strenuous thing is a series of a minimal amount of push-ups with stress and done improperly. As far as videos of him playing basketball, we would like to see those. The only thing that we know is, there is one picture of him taking one shot, making one basket. I don't know that they have videos of him playing basketball. If they have videos of him in a basketball game, they have not provided them to us in discovery. And the outtakes that they have, we do not have, and we would like to see them before they're shown.
Your Honor, we have provided the Defense last week. Mr. Lynch I believe made arrangements to have the copies made, Mr. Fairtlough, one of the two, of all of these videotapes to provide the Defense. The product for sale is the one that has three--
When? Late last week I understand. They were given to Mr. Armstrong. They were provided to Mr. Armstrong, who is our conduit.
Mr. Armstrong is an investigator with our office, Mr. Shapiro. Apparently this was litigated--again, I wasn't around for the opening statements. When Miss Clark says this was litigated during the course of the opening statement, I have no way of knowing one way or the other.
No. I'm just curious. My only question is, when were the copies of both tapes you want to play given to the Defense or all three tapes?
My understanding would be late last week, and that's because I got involved with this late last week.
They would have to--that information would have to come from Mr. Armstrong because Mr. Armstrong is our conduit to filter all information to the Defense for discovery.
Mr. Douglas does inform me that we did receive two videotapes, and we'll have to review those. If those are as Mr. Lynch represents, the entirety of three days of outtakes, they should be quite lengthy and I don't know how they would fit on two videos.
This--first of all, that's not accurate by Mr. Shapiro. And just out of deference to the young men and women who are exercising in this video, I don't think anyone would describe them as being in the geriatric class. These are people in the 20's--
Counsel, that's not helping me here. The issue is the offer of proof and whether or not you're going to play the whole thing in its entirety. That's all I'm interested in.
Your Honor, this has been represented to me to be the aerobic exercise segment, the taping of that. It appears to have been all on one day. You'll see the time in the videotape. It is approximately one hour long. There are like three takes of one set of exercise, I think two takes of another set of exercises. There is before that this 40-minute or so period where Mr. Simpson is going through the introduction, the promotional.
No. I am not suggesting that, your Honor. Mr. Shapiro is the one, he says let's play it all the way through. I believe that the only relevant portion to the doctor is the physical exercise that Mr. Simpson is engaging in, which is the period of about an hour that occurs after the 40 minutes. And that's where I have it racked up.
Yes, your Honor. The video that I reviewed, unless it's something different, is 70 minutes. And in order to get a proper perspective, it should be shown from beginning to end because Mr. Simpson goes through numerous cycles and he talks about how to exercise in the office, how to exercise on an airplane, how to exercise sitting down, and it will be very important for the jury to see what his exercise regimen is like. As far as the outtakes, they should be played definitely in their entirety because, as the Court is well aware, when commercial videos are made, they're made like movies and they are cut in sequence. It's not just 70 minutes shot and they put it on tape for commercial distribution.
All right. Thank you, counsel. All right. I'll accept the offer of proof from the Prosecution that they can in fact lay a sufficient foundation for the authenticity of the tapes and the manner in which they were made. The Prosecution is not required to play the tapes in their entirety for the purposes of cross-examination. However, under 356, the Defense may on redirect play it from beginning to end if they so choose.
Your Honor, out of--just to save time, we will so choose. So rather than start it once and then have to play the whole thing, we would ask the Court to have it shown in its entirety, and the jury can be told it's at the Defense request.
Your Honor, what I would suggest is, I will play the exercise portion first, and then we can play the introduction. But the exercise is clearly what is the relevant portion to this video.
I agree. All right. I've ruled. Let's have the jurors for another 30 minutes. Doctor, it looks like we're going to see you again tomorrow. Tomorrow, we are going to work through to 6 o'clock. So we will finish.
Your Honor, just for the record, the printouts from the elmo, there are several that needed to be identified. One is 518-BB of the--
You wanted me to give references for Mr. Merrill's testimony and Mr. Parks' testimony.
Let's do that after--let's try to squeeze what little we can out of the jury this afternoon. All right.
We've heard Dr. Huizenga talk about Mr. Simpson coming in on the 15th walking like Tarzan's grandfather, and we've got Mr. Simpson less than two months earlier saying he's feeling great, he's off the drugs, he's getting 10 yards more on his golf swing.
I actually had mornings where I could not open my door. I could not turn my wrist because my wrist, my fingers, my elbows would all get swollen up.
It is more a geriatric type of maintenance that Mr. Simpson endorsed and does not perform very well in.
The Prosecution is not required to play the tapes in their entirety for the purposes of cross-examination. However, under 356, the Defense may on redirect play it from beginning to end if they so choose.