Sidebar: cross-exam procedure

📄 Sidebar: cross-exam procedure — Monday, July 31, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\31\SIDEBAR-CROSS-EXAM-PROCEDURE.DOC

TRIAL

▲ Day 125 of 167

◀ Direct examination of Professor Herbert MacDonell (part 3) Cross-examination of Professor Herbert MacDonell (part 1) ▶

Date: Monday, July 31, 1995 • Utterances: 29

Judge Ito called counsel to the sidebar to address what cross-examination materials Marcia Clark had prepared. Clark disclosed she had prior testimony transcripts and articles (including magazine pieces quoting the witness and possibly his own book) but refused to share them with the defense in advance. Ito upheld Clark's position that she would seek permission before using any impeachment material, rejecting Neufeld's request for advance disclosure.

# 1 THE COURT:

Miss Clark. Oh, I'm sorry. Let me see counsel over at the sidebar with the court reporter.

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

# 3 THE COURT:

All right. Do we got any transcripts?

# 4 MS. CLARK:

I'm sorry?

# 5 THE COURT:

Got any transcripts of prior testimony?

# 6 MS. CLARK:

Do we have any? We have. I don't know if we are going to use them or not. Depends on the answers I get.

# 7 MR. NEUFELD:

The Court's prior ruling was that she was to provide us with all the transcripts.

# 8 THE COURT:

No. If it comes up that they're going to use them.

# 9 MS. CLARK:

Right. And I'll ask to approach before I use the transcript.

# 10 THE COURT:

All right. What else do you have? You do have transcripts?

# 11 MS. CLARK:

Yes I do. What else do I have? I think that is--well, articles, a couple of articles.

# 12 MR. COCHRAN:

Can we see them?

# 13 MS. CLARK:

No.

# 14 THE COURT:

Hold on.

# 15 MS. CLARK:

Well, depends on the answers I get.

KEY QUOTE

# 16 THE COURT:

What kind of articles?

# 17 MS. CLARK:

That he has written.

# 18 THE COURT:

He's written?

# 19 MS. CLARK:

His writing, his book and a couple of newspaper articles.

# 20 THE COURT:

Newspaper articles?

# 21 MS. CLARK:

Magazine.

# 22 THE COURT:

That he's written?

# 23 MS. CLARK:

No. About him, that are written about him with quotations from him.

# 24 THE COURT:

Okay.

# 25 MR. NEUFELD:

I would ask to see those articles now so I can be prepared for it and make the appropriate objections. If she wants to go into those things, we are going to have to have a sidebar before she goes into them because there's already been a ruling, and we're then going to have to read them for the first time, and we're going to have 15-minute delays every time we come to the sidebar. I thought the whole purpose of your order to get the transcript as soon as we finished the direct and the other impeachment material was to expedite the proceedings.

# 26 THE COURT:

Miss Clark.

# 27 MS. CLARK:

We don't even get discovery from them on direct. This is amazing, what they're asking for. I'm going to ask what I think to be appropriate questions. If the answers I get are not what I deem to be truthful, then I will ask to impeach him, I will ask to approach.

KEY QUOTE

# 28 THE COURT:

Okay. All right. Let's go.

# 29 (The following proceedings were held in open court:)

Temperature

procedural

Key Quotes (3)

Marcia Clark

We don't even get discovery from them on direct. This is amazing, what they're asking for.

Clark pushes back sharply, framing the defense's request as hypocritical given that the prosecution receives no advance disclosure of direct examination content.

Peter Neufeld

We're going to have to read them for the first time, and we're going to have 15-minute delays every time we come to the sidebar. I thought the whole purpose of your order to get the transcript as soon as we finished the direct and the other impeachment material was to expedite the proceedings.

Neufeld invokes the court's own efficiency rationale to argue for advance disclosure — a practical argument rather than a purely legal one.

Marcia Clark

Depends on the answers I get.

Clark's repeated refrain — she won't commit to using any impeachment material until she hears the witness's answers, which is tactically sound and legally defensible.

Evidence (3)

Informal

Prior testimony transcripts of the witness being cross-examined

disclosed existence; not yet used

Informal

Magazine/newspaper articles written about the witness, containing quotations attributed to him

disclosed existence; defense denied advance access

Informal

Book authored by or attributed to the witness

disclosed existence; defense denied advance access

Notable Exchanges (2)

Peter Neufeld•Marcia Clark

Neufeld argued that the court's prior order required Clark to disclose all impeachment material after direct examination concluded. Clark flatly refused, stating defense gets no advance notice of cross-examination strategy either.

adversarial

Johnnie Cochran•Marcia Clark

Cochran simply asked 'Can we see them?' regarding the articles. Clark replied 'No.' — the exchange lasted two words total.

terse

Credibility Attacks (1)

⚔ unnamed defense witness

prior inconsistent statements, published writings

Clark signals intent to impeach with prior testimony transcripts, magazine articles quoting the witness, and possibly his own book — though none were used yet at this sidebar stage.

Objections

None recorded

Proceeding 7089 • 29 utterances

Criminal Trial

Department 103