Sidebar: defense testing (1)

📄 Sidebar: defense testing (1) — Tuesday, June 27, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUN\27\SIDEBAR-DEFENSE-TESTING-1-.DOC

TRIAL

▲ Day 104 of 167

◀ Direct examination of Susan Brockbank (afternoon, part 4) Direct examination of Susan Brockbank (afternoon, part 5) ▶

Date: Tuesday, June 27, 1995 • Utterances: 38

A brief sidebar about whether the prosecution could elicit testimony that a witness transported evidence to Cal Labs for Defense examination. Blasier objected that any reference to Defense testing or examination would be prejudicial; Ito overruled, allowing only that the witness transported items, observed the Defense examiner handle them, and repackaged and returned them. The sidebar ended quickly with Cochran also making a procedural bid to adjourn for the day rather than start cross-examination.

# 1 THE COURT:

We are over at side bar. What is your objection?

# 2 MR. BLASIER:

We are not contesting chain of custody. She is getting into Defense testing, Defense examination, and I think--I thought we had previously ruled on that. We would object to any testimony about what we might have tested or not tested or any inferences that might be created by us receiving evidence and examining it. I'm not objecting--I will stipulate to the chain of custody of these items during that period of time and--

# 3 MS. CLARK:

I don't know why we are precluded from bringing out the fact that our evidence--this witness witnessed and observed--observed the--not only witnessed and observed, but conducted the transportation of evidence for the purpose of Defense viewing, to exactly which items she transported, because they have to be unpackaged and then repackaged and resealed, and they are just--they refused my earlier offer to stipulate as to what her testimony would have encompassed.

# 4 THE COURT:

What is she going to say? I took them out to Cal Labs?

# 5 MS. CLARK:

Right.

# 6 THE COURT:

I was there for how long?

# 7 MS. CLARK:

Right.

# 8 THE COURT:

What she observed?

# 9 MS. CLARK:

Right.

# 10 THE COURT:

What did she observe?

# 11 MS. CLARK:

Just observed him examining the evidence. That is a one-question thing. And then they were all repackaged and she took them back and that is it and I'm done.

# 12 THE COURT:

And you are done?

# 13 MS. CLARK:

I am done.

# 14 MR. COCHRAN:

You are finished with this witness?

# 15 MS. CLARK:

That's right.

# 16 MR. COCHRAN:

What about this question?

# 17 MS. CLARK:

Only one question, though.

# 18 MR. COCHRAN:

Well--

# 19 THE COURT:

She has got to look at the board, look at the board.

# 20 MR. COCHRAN:

Judge, can I just say something? Looking at the jurors and everybody, is it fair for Bob to have to start this afternoon?

# 21 THE COURT:

If you want to quit, we can quit and get a fresh start.

# 22 MR. COCHRAN:

Don't you think that is fair?

# 23 THE COURT:

But--

# 24 MS. CLARK:

You know--

# 25 MS. CLARK:

If you let me get back there, it will take two or three, what, four or five questions to finish. By that time it will be a quarter to 6:00 which is when you want to break anyway.

# 26 THE COURT:

All right. I'm going to overrule the objection. We are not going into testing, just that she transported it there and that it was available to the Defense for examination and then brought back and that is all we are going into.

KEY QUOTE

# 27 MS. CLARK:

The fact that she observed him to examine--

# 28 (Nods head up and down.)

# 29 MS. CLARK:

Okay. That is it.

# 30 MR. COCHRAN:

That is testing.

# 31 MS. CLARK:

Not what he did, just that she watched him examine it and took it back and repackaged it and took it back.

# 32 MR. BLASIER:

We would object to that.

# 33 THE COURT:

All right. It will be overruled, but it is examination. Ask a leading question.

# 34 MS. CLARK:

Yes.

# 35 THE COURT:

All right.

# 36 MS. CLARK:

Yes, I will wrap it all in.

# 37 MR. COCHRAN:

She is good at that.

KEY QUOTE

# 38 THE COURT:

So stipulated.

Temperature

tense

Key Quotes (4)

Robert Blasier

We would object to any testimony about what we might have tested or not tested or any inferences that might be created by us receiving evidence and examining it.

Captures the Defense's core concern: that evidence of what they examined — or failed to examine — could be used to draw adverse inferences against them.

Lance A. Ito

All right. I'm going to overrule the objection. We are not going into testing, just that she transported it there and that it was available to the Defense for examination and then brought back and that is all we are going into.

Ito draws a narrow line — availability for examination is fair game, but the substance of any testing is not.

Johnnie Cochran

That is testing.

Cochran pushes back on Ito's distinction, arguing that testifying the Defense examiner 'examined' the evidence is functionally the same as testimony about testing.

Johnnie Cochran

She is good at that.

A sardonic aside about Clark's skill at wrapping multiple points into a leading question — the only moment of levity in the sidebar.

Evidence (1)

Informal

Physical evidence items transported to Cal Labs for Defense examination, unpackaged and repackaged by the witness

discussed

Notable Exchanges (2)

Johnnie Cochran•Lance A. Ito

Cochran urged Ito to adjourn rather than have Blasier begin cross-examination late in the afternoon, framing it as a fairness issue for the jurors.

strategic

Marcia Clark•Robert Blasier•Lance A. Ito

Clark argued she needed only one question about the witness observing the Defense examiner; Blasier objected even to that framing; Ito overruled but limited the scope to a leading question.

procedural

Light Moments (1)

Johnnie Cochran

Cochran quipped 'She is good at that' about Clark's ability to wrap multiple points into a single leading question.

Witness Demeanor

(Ito nods head up and down in response to Clark's characterization of the testimony.)

Objections

2 objections (0 sustained, 2 overruled)

Proceeding 7925 • 38 utterances

Criminal Trial

Department 103