All right. The discovery matter on glove photos. Mr. Neufeld, you want to address that?
Your Honor, I believe, as you already know, the Prosecution has obtained in the course of their investigation photographs of Mr. Simpson depicted in his professional capacity covering certain football games wearing leather gloves. We will take the position obviously that those pictures are completely irrelevant, but that's not even the issue at this time. The issue at this time is one of discovery. So far, all we've received are photocopies from the Prosecution of those actual photographs. The photocopies unfortunately are relatively illegible, especially when you're looking for the kind of detail that one would expect to want to look at of a photograph of Mr. Simpson wearing gloves. They are arguing that this is relevant evidence. If it is relevant evidence, it is a photograph of Mr. Simpson, it is real evidence. The statute is unequivocal on this point.
In 1054.1, when it talks about what is discoverable and what must be turned over to the Defense, it states under subsection c: "All relevant, real evidence seized or obtained as a part of the investigation of the offenses charged." Okay. You can look at McCormick, you can look at any textbook at all on the meaning of real evidence, and I'm sure your Honor appreciates a photograph of Mr. Simpson would be real evidence. There's no question about that. It's not limited to evidence seized. It also includes evidence obtained in the course of their investigation. The only other limitation is, it has to be relevant. Well, they're alleging or asserting that it's relevant. If they're asserting it's relevant and they want to use it at some point during these proceedings, whether it be for impeachment purposes or any other purposes, since they did obtain it in the course of their investigation, we are entitled to receive it as discovery early on. Not after a witness is finished--I'm sorry. Not after a witness finishes his direct testimony. It's part of the discovery statute.
And for that simple reason alone, we're entitled to see those pictures. Frankly, we need to see those pictures anyway so we can better argue why it would not be relevant for purposes of impeachment or for direct evidence or rebuttal evidence or any other evidence in this case. But to turn over certainly only Xerox copies when it has not been the procedure in this case, when in every instance where we wanted to introduce photographs, we turned over as discovery in advance not photocopies of those photographs, but actual prints. And in all other instances to my knowledge, the People have done the same. This is the only instance I'm aware of where they've limited the reproduction to photocopies, and it's fundamentally unfair, it's outside the statute and I think that the Court at this time should order them to turn those photographs over forthwith.
Your Honor, it's nice to cite the discovery statute, but when the California Supreme Court in 1991 directly addressed this issue which Defense seeks to raise, it's more appropriate to cite their holding in Izzazaga versus Superior Court at 54 Cal. 3d--I know the Court knows the case, but for the record, 356 at pages 376 to 377, the Defense protested because they felt that due process required that the Prosecution disclose not only rebuttal witnesses and their statements, but other evidence gleaned in rebuttal to the Defense case, and they say that. And what the California Supreme Court holds is that the due process clause does not require such disclosure. It says that the--the court says at page 377 that: "The witnesses and their statements are what is disclosable, Defense witnesses for Prosecution witnesses and nothing more. We glean nothing from the Supreme Court's interpretation--"
Talking they are about the U.S. Supreme Court, "--of the due process clause to lead us to conclude that reciprocity requires the Prosecutor to disclose other evidence gathered in response to a compelled Defense disclosure that may be used to refute the Defendant's case when the Defense is not required to do so--do the same following discovery of the Prosecution's witnesses." So it's directly on point. It's directly on point. It's a holding of our California Supreme Court construing the relevant statute, and the Court is duty-bound to follow it. This is relevant, real evidence which we are using in rebuttal. We're in a different ball of wax when we talk about the People's Prosecution case in chief and the People's rebuttal, and this is rebuttal.
But haven't we sort of gone beyond that by actually disclosing to the Defense by means of photocopies of these photos what it is?
Well, the Defense benefited. They got a windfall with that, because during our case in chief, we were considering the possibility of putting on witnesses with regard to authenticate and so forth those photos. We were considering doing that, though we never actually made the decision to do that. But because we've been so generous in discovery in this case to the Defense, we went ahead and did that. But that was at a time we were considering putting it on in our case in chief. We never decided to do that and we in fact did not do that and we have rested and we're into the Defense case. So that--that equivocal nature of our decision on that part benefited the Defense. They got the windfall of that. So they were not entitled to those Xeroxes even then.
Your Honor, Mr. Darden reminds me as well that there are some photographs that were obtained during our case in chief, which I just alluded to. There also are photographs that have come in and we've obtained since the Defense started their case. Altogether, there may be as many as possibly 15 such photographs and videotapes, videotapes as well. But, your Honor, the Supreme Court is clear that this is evidence that need not be disclosed to the Defense that the Prosecution is using in rebuttal and there's been--there's no--counsel has not made the argument and has not even cited a case for the proposition that there is any waiver. What they did was to get a windfall by that early partial disclosure.
All right. How many photocopied photographs did you actually turn over to the Defense?
Your Honor, I'm informed by Mr. Douglas that it's approximately eight, and he's only estimating. It doesn't have it in front of him.
No. They're different. Different--Xerox copies of eight different photographs. Not of the same--they're not--they're not different photocopies of the same thing.
I think they're different occasions, if that's what the Court is asking, that for the most part--not 15 different occasions.
There's a variety of occasions. I don't think that there's 15 occasions, but there's more than one I believe.
Yes, your Honor. Just very, very briefly. This so-called equivocal act by the Prosecution is commonly referred to as a waiver I believe. I don't think I need to cite case authority for that. If they gave over part of a statement or a statement in one form, I think they'd be obliged to turn over the actual statement that they had. The most important thing here also is not just that I think we're entitled to it under the discovery statute, but if you think about it, they're going to try and suggest that they can use these photographs for impeachment. We will argue that they are actually irrelevant and would be inappropriate impeachment. We'll be in a much better position to not waste the Court's time and argue that effectively and efficiently if we can actually see the photographs and the details in those photographs as opposed to relying on Xeroxes to explain why based on other evidence we have they are completely irrelevant. So if they show us the photographs at that time, we'll then have to have a recess so we can look at other matters. It makes absolutely no sense in terms of the Court's--in terms of judicial economy or efficiency of these proceedings. There's no reason for this kind of sandbagging.
All right. I'm going to order the Prosecution to disclose and make available for examination the actual photographs of which they have already provided Xerox copies to the Defense.
KEY QUOTEIs there also a ruling, your Honor, on the videotapes, because you made an earlier ruling that all videotapes that came into the possession of the Prosecution--
No, counsel. It's just the ones, the photocopy--if they've given you a photocopy, they have to make available to you the actual photographs for your examination. If it's something else that they've garnered in preparation for rebutting your case, they're not required to disclose that at this time.
The photocopies unfortunately are relatively illegible, especially when you're looking for the kind of detail that one would expect to want to look at of a photograph of Mr. Simpson wearing gloves.
We were considering the possibility of putting on witnesses with regard to authenticate and so forth those photos. We were considering doing that, though we never actually made the decision to do that.
This so-called equivocal act by the Prosecution is commonly referred to as a waiver I believe. I don't think I need to cite case authority for that.
I'm going to order the Prosecution to disclose and make available for examination the actual photographs of which they have already provided Xerox copies to the Defense.