Okay. All right. The one other issue to be resolved before we invite the jury to come back is the comment that is in this tape. And the record should reflect that this morning I met with counsel, Mr. Shapiro, and Mr. Kelberg, and viewed the laser disk outtake on three different occasions, and the Court recollects having seen that outtake on two previous occasions. And I will hear argument from counsel regarding the admissibility of that statement by Mr. Simpson.
Your Honor, perhaps should the Court have that played just briefly so we can--it takes just about two minutes I think.
Well, that is for certain, your Honor. The statement then, for the record, involves the trainer beginning an exercise in which he is making punching motions with the left and right hand and the trainer begins by saying "You better watch out, OJ," and Mr.--or words to that effect.
What he says is, "You got to get your space in if you are working out with the wife, if you know what I mean. You could always blame it on, umm, working out." At the time he is making punches with the left and right arm. That is, Mr. Simpson is making it. Your Honor, the Court of course is well aware this video was made less than three weeks before the murder of Nicole Brown Simpson. This Court has heard testimony of domestic violence involving Mr. Simpson and Nicole Brown Simpson and has admitted such evidence as it may relate to intent and to motive. Mr. Simpson's unscripted remark reflects his state of mind, his attitude towards his wife, his attitude towards striking his wife. You can always blame it on, in essence, this exercise, this workout. Now, everybody laughs in the video because this video is made before the murders. If this video had been shown the day after or had been shot the day after the murders and Mr. Simpson made the very same remark to that trainer that he makes in this video, I don't think there is one person who is exercising with Mr. Simpson or one person who would watch that video who would be laughing along with Mr. Simpson. It is so close in time to the murders, your Honor, it is so directly related to striking his wife, which is exactly part of the evidence to show intent and motive, relevant to premeditation and deliberation. If it is an offhanded remark that is not intended to reflect his true state of mind, the jury may so find. I don't think they will find that, not given the proximity in time and the other evidence of domestic violence. So it has substantial probative value on Mr. Simpson's state of mind. And let's face it, your Honor, his state of mind is a big issue in this case, both with respect to proving identity and with respect to proving premeditation and deliberation. And so on the basis of the threshold for admissibility, I submit to the Court it has substantial probative value and its unfairness or its possible prejudice is what? That the jury will think what? That he beats his wife or that he thinks beating a wife is something that is of no consequence. Well, isn't that exactly what this is all about; his intent, his motivation, his relationship with his wife and whether it serves to prove that he is in fact the murderer and that these murders are first degree rather than second? So I submit that there is substantial probative value and it is not substantially outweighed, as the code requires, by undue prejudice. I'll submit the matter, your Honor.
KEY QUOTEYour Honor, fortunately we had a chance to view the tape on four occasions this morning starting at 8:30. And the Court will recall that this was said with a smile on Mr. Simpson's face, that the people who heard the remark were chuckling at it, that it was clearly a remark made in jest; it was taken in jest. Mr. Kelberg has not had the benefit of being here through the entire trial, so therefore he has only honed in on the medical aspects of this case and apparently does not realize that the only evidence that Mr. Simpson had any physical contact with Nicole Brown Simpson was five and a half years ago in 1989. And to try to establish some type of linkage between that and five and a half years later when doing what he describes as a punch--and if Mr. Kelberg would like me to demonstrate a punch, I would be more than glad to show it to him--but this is just a little arm movement going up and down on each side, far from a punch. And clearly a remark made in jest, clearly something that is potentially very, very prejudicial and no real probative value. It doesn't prove anything whatsoever, therefore, it should properly be excluded from consideration by this jury.
All right. The Court, in evaluating this statement, must look at the statement in its context, both within the context of how the statement is made here during an outtake from an exercise videotape, plus the context of the facts and circumstances of the case. I have to weigh the probative value, which I find to be substantial, especially given the proximity. I think the proximity is what gives it the most probative value. And I find that that outweighs any prejudicial impact and the objection will be overruled. All right. Let's have the jury, please.
I'm the only one whose opinion counts here, Mr. Kelberg.
You got to get your space in if you are working out with the wife, if you know what I mean. You could always blame it on, umm, working out.
If this video had been shot the day after the murders and Mr. Simpson made the very same remark to that trainer that he makes in this video, I don't think there is one person who is exercising with Mr. Simpson or one person who would watch that video who would be laughing along with Mr. Simpson.
I find the probative value to be substantial, especially given the proximity. I think the proximity is what gives it the most probative value. And I find that that outweighs any prejudicial impact and the objection will be overruled.