Sidebar: prior testimony and discovery

📄 Sidebar: prior testimony and discovery — Thursday, July 6, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\6\SIDEBAR-PRIOR-TESTIMONY-AND-DI.DOC

TRIAL

▲ Day 109 of 167

◀ Cross-examination of Douglas Deedrick (part 1) Cross-examination of Douglas Deedrick (part 2) ▶

Date: Thursday, July 6, 1995 • Utterances: 21

A sidebar dispute over F. Lee Bailey's use of prior recorded testimony during cross-examination without giving the prosecution advance notice. Marcia Clark objected on both foundational and discovery grounds, arguing Bailey's pattern of springing new material without prior disclosure was delaying the trial and was fundamentally unfair. Judge Ito clarified the rule: if Bailey needs a transcript to refresh the witness's recollection, the prosecution is entitled to a copy.

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

# 2 MS. CLARK:

Your Honor, every other attorney--

# 3 THE COURT:

Wait, wait. We are over here at the side bar. I take it there is a foundational objection at this point?

# 4 MS. CLARK:

It is, as well as a discovery objection. Every other attorney has known how to turn over the materials at the beginning of cross that they intend to use. I don't want any more delays. We all want this case to end. Mr. Bailey's continual flourishing of new things that he intends to confront the witness with without having previously shown us or given us an opportunity to review is delaying this trial and is unfair, fundamentally unfair and improper, unethical practice. The Court's rules have been very clear about this. No one else has had difficulty abiding by those rules.

# 5 THE COURT:

What we are talking about here is the list of the prior recorded testimony--

# 6 MS. CLARK:

Correct.

# 7 THE COURT:

--to impeach. There is a foundation that I haven't heard yet.

# 8 MS. CLARK:

That as well.

# 9 MR. BAILEY:

Furthermore, if the witness recollects something, I don't believe I need to furnish a transcript to the Prosecutor. If he says, yes, I said that, he said it. They don't have to preview the cross-examination by furnishing page and lists of transcripts. This is something he said under oath. I assume he will recall. And if he doesn't, I will refresh his recollection.

KEY QUOTE

# 10 MS. CLARK:

If the questions elicit answers out of context that are misleading and confusing and actually the opposite of what the People meant, do the People have an opportunity then?

KEY QUOTE

# 11 THE COURT:

Yes. Counsel, keep your voice down.

# 12 MS. CLARK:

How can I do that if I am not furnished the transcript?

# 13 THE COURT:

You are entitled to have a copy of the transcript that you are going to use.

KEY QUOTE

# 14 MR. BAILEY:

If I have to use the transcript to refresh his recollection?

# 15 THE COURT:

Yes.

# 16 MR. BAILEY:

Okay.

# 17 THE COURT:

Because they are entitled to know whether or not it is in context, but you can ask him if he recalls giving testimony and if he may--as I am indicating to you, I haven't heard the foundation for the use of prior recorded testimony yet.

# 18 MR. BAILEY:

Just to avoid coming back here, if I need to refresh his recollection by showing him the transcript, it seems to me at that point they are entitled to it.

# 19 THE COURT:

All right.

# 20 MR. BAILEY:

Okay. That is what I understood the rule to be.

# 21 THE COURT:

All right.

Temperature

tense

Key Quotes (4)

Marcia Clark

Mr. Bailey's continual flourishing of new things that he intends to confront the witness with without having previously shown us or given us an opportunity to review is delaying this trial and is unfair, fundamentally unfair and improper, unethical practice.

Clark explicitly accuses Bailey of unethical conduct on the record, escalating a procedural dispute into a personal attack on opposing counsel.

F. Lee Bailey

If the witness recollects something, I don't believe I need to furnish a transcript to the Prosecutor. If he says, yes, I said that, he said it. They don't have to preview the cross-examination by furnishing page and lists of transcripts.

Bailey's legal argument for why advance disclosure isn't required — and his implicit acknowledgment he's using prior sworn testimony to impeach.

Marcia Clark

If the questions elicit answers out of context that are misleading and confusing and actually the opposite of what the People meant, do the People have an opportunity then?

Clark identifies the core danger of unannounced impeachment by prior testimony — selective quotation out of context with no ability to rehabilitate.

Lance A. Ito

You are entitled to have a copy of the transcript that you are going to use.

Ito's ruling: prosecution gets the transcript if Bailey uses it, settling the immediate dispute.

Evidence (1)

Informal

Prior recorded testimony (unspecified transcript) that Bailey intended to use to impeach or refresh the witness's recollection

disputed — Clark objects to use without prior disclosure; Ito rules prosecution entitled to copy if used

Notable Exchanges (2)

Marcia Clark•F. Lee Bailey

Clark accuses Bailey of a pattern of unethical practice in withholding impeachment materials; Bailey counters that no advance disclosure is required if the witness simply recalls making the prior statement.

heated

F. Lee Bailey•Lance A. Ito

Bailey walks through his understanding of the rule step-by-step — ultimately conceding that if he uses the transcript to refresh recollection, the prosecution gets a copy — and Ito confirms that is correct.

strategic

Credibility Attacks (1)

⚔ unspecified witness (likely Fuhrman given Bailey's involvement)

prior inconsistent statement / prior recorded testimony

Bailey was preparing to confront the witness with prior sworn testimony, either to impeach directly or to refresh recollection — the mechanism at issue in the sidebar.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 6649 • 21 utterances

Criminal Trial

Department 103