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📄 Sidebar — Monday, July 17, 1995

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TRIAL

▲ Day 116 of 167

◀ Cross-examination of Dr. Robert Huizenga (part 6) Morning session opening ▶

Date: Monday, July 17, 1995 • Utterances: 64

A late-afternoon sidebar covering several evidentiary matters: the defense objected under 352 to OJ Simpson's comments during a simulated punching scene on an exercise outtake tape; the parties reviewed prior witness testimony from Park (OJ appearing sweaty) and Merrill (no limp observed) for use in context; and there was a brief dispute about how to conduct a medical hearing — via live witnesses or declarations. The session ended with adjournment to the following morning.

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

# 2 THE COURT:

We're over at the sidebar.

# 3 MR. SHAPIRO:

We saw this previously. There was one outtake where there was a simulated punching scene where there were some comments made by OJ Simpson, and we would object to those comments under 352.

# 4 THE COURT:

Do you know where they are on the tape, the real-time counter?

# 5 MR. SHAPIRO:

No, I don't. Do you know, Mr. Kelberg?

# 6 MR. KELBERG:

I know the segment you are talking about. It has been transferred on to laser disk, but I do not know vis-à-vis the video because quite frankly, I watched it in fast forward without the sound after I--

# 7 THE COURT:

Got the flavor.

# 8 MR. KELBERG:

--got the flavor of it.

# 9 MS. CLARK:

This is just the warm-up.

# 10 MR. KELBERG:

Of course, we're seeing multiple takes of the same process and progressed, and there will be multiple takes.

# 11 THE COURT:

Well, Mr.--

# 12 MR. KELBERG:

I don't think the issue is as quite simple as the Court may initially believe. The comment does in fact suggest that a way to take care of the wife is with a blow because the trainer is moving I think in the direction of Mr. Simpson.

# 13 THE COURT:

Well, no. Mr. Kelberg, what I was interested in is where in the tape on the real-time counter does it exist so I can review it.

# 14 MR. KELBERG:

Would you like to review the laser disk? We can get to it right away.

# 15 THE COURT:

Sure. Let's do that.

# 16 MR. SHAPIRO:

Also, your Honor, earlier, we made two requests to have that portion of the transcript brought up regarding the observations of Mr. Park.

# 17 MS. CLARK:

Shall I do it now?

# 18 THE COURT:

Yeah.

# 19 (A conference was held at the bench, not reported.)

# 20 THE COURT:

Let's go back on the record. All right. As to the commercial tape, you're not going to offer all of that. It's just some items that are not on the out-take tape; is that correct?

# 21 MR. KELBERG:

That's correct.

# 22 THE COURT:

All right. Then I would suggest you get that cued up. All right. One other thing. I left the evidence feed off for the out-take tape because I think this is all copyrighted material.

# 23 MR. KELBERG:

It makes no difference to me, your Honor.

# 24 THE COURT:

If you have any opinion about that, let me know.

# 25 MS. CLARK:

Isn't the commercial version of these outtakes out?

# 26 THE COURT:

I'm sorry?

# 27 MS. CLARK:

Don't they already have the commercial version of these outtakes out?

# 28 MR. SHAPIRO:

Yes.

# 29 THE COURT:

Okay. Miss Clark, as to the--then I take it neither side cares if that's let out on the--

# 30 MR. SHAPIRO:

Let's talk about that.

# 31 THE COURT:

All right.

# 32 MS. CLARK:

Volume--yes, your Honor. For Kato--I mean, for Parks' testimony, page 15,115, line 5: "Could you tell us how he looked? How did he appear? "Answer: He seemed to be hot "Question: And what did you see that made you believe that? "Answer: He had a little bit of sweat on his forehead." Earlier--well, excuse me. I have one other.

# 33 (A conference was held at the bench, not reported.)

# 34 THE COURT:

Let's go back on the record.

# 35 MS. CLARK:

Yes, your Honor. I have other pages for that testimony that went back up with the law clerk, and in virtually--but prior to this testimony also, the testimony that is elicited concerning his appearance when he gets into the limousine and when he's in the limousine complaining of it being hot over and over again and rolling down the windows, turning on the air conditioning.

# 36 MR. SHAPIRO:

That's exactly our point.

# 37 MR. COCHRAN:

We need that.

# 38 MS. CLARK:

You don't believe that testimony occurred?

# 39 MR. COCHRAN:

We know that testimony occurred. We want to put it in perspective.

# 40 MR. SHAPIRO:

What the hypothetical was.

# 41 THE COURT:

All right.

# 42 MS. CLARK:

He said he saw him sweating. With respect to Mr. Merrill on the real time, page 195, the day of his testimony: "Question: You watched him walk toward you? "Answer: Yes. "And did he appear to limp? "Answer: Not that I noticed. I noted he was a little bowlegged, but that's about it. "Question: Okay. That's--I mean, I'm not talking about the shape of his legs. I'm just saying the manner in which he was-- "Answer: I didn't notice a limp." That was Mr. Merrill's testimony.

# 43 MR. SHAPIRO:

What about Mr. McKay's testimony on that?

# 44 MS. CLARK:

He was not included in the list, counsel.

# 45 THE COURT:

All right.

# 46 MR. SHAPIRO:

Isn't that misleading to the jury, Judge?

KEY QUOTE

# 47 THE COURT:

No. The jurors know who's included and who's not. I think that's an adequate offer. All right. Tomorrow morning, 9 o'clock.

KEY QUOTE

# 48 MS. CLARK:

Your Honor, let me ask the Court for assistance. Did you want us to put in the declaration from the doctor--we can bring it in tomorrow--or dispense with it?

# 49 THE COURT:

No. It seemed to me you wanted a full-blown 240 hearing. So it looks like we're going to have to drag witnesses in and put them under oath.

KEY QUOTE

# 50 MS. CLARK:

Not if we bring in the declaration.

# 51 THE COURT:

Counsel, you raised the objection. I didn't.

# 52 MS. CLARK:

No. I don't object to proceeding on the declaration if the Court accepts the People's as well as the Defense's with a proposal for how to conduct the hearing at the hospital. That was the People's position.

# 53 THE COURT:

Well, Miss Clark, you're taking inconsistent positions now.

# 54 MS. CLARK:

Okay. I don't mean to do that, your Honor, and if that's how I'm perceived, then I apologize. I don't want to take up any more Court time than is necessary.

# 55 THE COURT:

Why don't you file the declaration and let's see what's there.

# 56 MS. CLARK:

Okay.

# 57 MR. COCHRAN:

Can we get those things, things from the jurors? Is that today or tomorrow?

# 58 THE COURT:

Tomorrow. I'll get to it when I get in tomorrow morning. I've got to take off and take care of some things.

# 59 (At 4:10 P.M., an adjournment was taken until, Tuesday, July 18, 1995, 9:00 A.M.)

# 60 (Pages 37050 through 37059, inclusive, sealed)

# 61 APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

# 62 FOR THE PEOPLE:

Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

# 63 FOR THE DEFENDANT:

Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

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I N D E X

Index for volume 188 pages 37060 - 37283

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Day date session page vol.

Monday July 17, 1995 A.M. 37060 188 P.M. 37172 188

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# 64 LEGEND:

Ms. Clark-mc Mr. Hodgman-h Mr. Darden D Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

DEFENSE witnesses direct cross redirect recross vol.

Huizenga, 188 Robert (Resumed) 37069BK (Resumed) 37180BK

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Huizenga, 188 Robert (Resumed) 37069BK (Resumed) 37180BK

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

511 - 1-Page document 37093 188 described as a letter by Robert Huizenga, MD., dated February 5, 1995

512 - 1-Page document 37100 188 described as a letter by Robert Huizenga, MD., dated July 6, 1994

513 - 1-Page document 37103 188 described as a letter by Robert Huizenga, MD., dated July 18, 1994

514 - Drawing 37191 188 of a hand by Dr. Huizenga

515 - Photograph 37212 188 of the palm side of the Defendant's hand and arm

516 - Photograph 37221 188 of the left wrist and hand of the Defendant

517 - Photograph 37232 188 of four fingers on the Defendant's left hand and arm

518-A thru 518-I - 37239 188 photographs of various sections of the Defendant's left hand

519-A - photograph 37240 188 of the right hand, wrist and forearm of the Defendant

519-B - photograph 37240 188 of the right hand of the Defendant

518-AA - photograph 37246 188 of a close-up view of the top of the Defendant's hand with two green arrows (Computer printout)

520 - Photograph 37244 188 of a close-up view of the Defendant's middle finger with a green line (Computer printout)

521 - Videotape 37274 188 of the Defendant exercising

Temperature

procedural

Key Quotes (5)

Brian Kelberg

The comment does in fact suggest that a way to take care of the wife is with a blow because the trainer is moving I think in the direction of Mr. Simpson.

Kelberg explains why the prosecution considers OJ's comment during the punching simulation relevant — it connects to domestic violence and consciousness of guilt.

Robert Shapiro

Isn't that misleading to the jury, Judge?

Shapiro challenges the prosecution's selective use of testimony (Merrill but not McKay on the limp issue), arguing the jury gets an incomplete picture.

Lance A. Ito

No. The jurors know who's included and who's not. I think that's an adequate offer.

Ito overrules Shapiro's misleading-the-jury concern, deferring to jury intelligence.

Marcia Clark

He seemed to be hot. Question: And what did you see that made you believe that? Answer: He had a little bit of sweat on his forehead.

Park's testimony about OJ appearing physically exerted — relevant to the prosecution's timeline argument that OJ had recently been active.

Lance A. Ito

It seemed to me you wanted a full-blown 240 hearing. So it looks like we're going to have to drag witnesses in and put them under oath.

Ito pushes back on Clark's attempt to simplify the medical hearing after the defense raised the objection that forced it.

Evidence (5)

521

Videotape of OJ Simpson exercising — outtake footage including a simulated punching scene with comments by Simpson

Discussed; defense objected to specific segment under 352; judge requested real-time counter location for review

Informal

Commercial version of the exercise outtakes — already publicly released

Discussed; parties debated whether to feed to evidence cameras given copyright and public availability

Informal

Park testimony transcript, page 15,115 — observation that OJ appeared hot and sweaty upon entering the limousine

Read into record by Clark for context during cross-examination

Informal

Merrill testimony, real-time page 195 — observed OJ walking without a noticeable limp, noted he was bowlegged

Read into record by Clark; Shapiro challenged omission of McKay's testimony on same issue

Informal

Medical declaration(s) relating to proposed 240 hearing — referenced but not yet filed

Discussed; Ito instructed Clark to file the declaration before ruling on hearing format

Notable Exchanges (3)

Robert Shapiro•Marcia Clark•Lance A. Ito

Shapiro argued the prosecution's use of Merrill's testimony (no limp) without McKay's was misleading to the jury. Clark responded McKay wasn't on the list. Ito sided with Clark, saying jurors understand who is and isn't included.

strategic

Marcia Clark•Lance A. Ito

Clark tried to simplify the upcoming medical hearing by using declarations rather than live witnesses. Ito pointed out she was taking inconsistent positions — having previously demanded a full 240 hearing. Clark apologized and agreed to file the declaration.

tense

Brian Kelberg•Lance A. Ito

Kelberg explained the significance of OJ's comment on the punching outtake. Ito was less interested in the substance than in locating the exact timestamp on the tape so he could review it himself.

procedural

Light Moments (3)

Lance A. Ito

Ito finished Kelberg's sentence — 'got the flavor of it' — before Kelberg could say it himself, as Kelberg explained he watched the tape in fast-forward.

Marcia Clark

Clark's aside 'This is just the warm-up' during discussion of multiple takes on the exercise tape.

Marcia Clark

Clark accidentally said 'Kato' before correcting herself to 'Parks' when citing the limousine driver's testimony.

Credibility Attacks (1)

⚔ Merrill

omission / incomplete record

Shapiro argued that presenting Merrill's testimony on OJ's gait without McKay's testimony on the same subject was selectively misleading to the jury. Ito overruled the concern.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 6870 • 64 utterances

Criminal Trial

Department 103