Sidebar: witness preparation

📄 Sidebar: witness preparation — Tuesday, March 14, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\14\SIDEBAR-WITNESS-PREPARATION.DOC

TRIAL

▲ Day 37 of 167

◀ Cross-examination of Mark Fuhrman (afternoon, part 1) Cross-examination of Mark Fuhrman (afternoon, part 2) ▶

Date: Tuesday, March 14, 1995 • Utterances: 37

At the bench, the parties dispute whether F. Lee Bailey can ask a witness (Kathleen Bell) to disclose what 'irrelevant evidence' the prosecution had prepared her for during a mock cross-examination. Clark argues that allowing the question would force the witness to disgorge evidence the court has already ruled inadmissible; Bailey argues the prosecution opened the door when Clark elicited testimony about why the witness felt nervous and reluctant. Judge Ito agrees Clark's own question created the problem and decides to send the jury back in and allow the question.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 THE COURT:

IT'S UNBELIEVABLE WE HAVE 20,000 PAGES OF TRANSCRIPT ALREADY.

# 3 MR. BAILEY:

COUNTER DOESN'T HAVE SIX DIGITS.

# 4 MS. CLARK:

IS THE COURT LOOKING FOR SOMETHING?

# 5 THE COURT:

GO AHEAD.

# 6 MR. DARDEN:

CAN I HANDLE IT?

# 7 MS. CLARK:

CAN I LET MR. DARDEN HANDLE THIS?

# 8 MR. DARDEN:

OBVIOUSLY --

# 9 MR. BAILEY:

I OBJECT. I OBJECT. ONE LAWYER --

# 10 MR. DARDEN:

I AM THE ONE.

# 11 MR. BAILEY:

-- ONE WITNESS. I DON'T THINK SO.

# 12 THE COURT:

MISS CLARK, YOUR WITNESS.

# 13 MS. CLARK:

NO. THE PROBLEM IS, I DIDN'T DO THIS MOCK CROSS-EXAMINATION. I WASN'T THERE.

# 14 THE COURT:

NO. THE QUESTION WAS, DID YOU DISCUSS ANYTHING THAT YOU FELT WAS IRRELEVANT OR DEAL WITH ANYTHING IRRELEVANT.

# 15 MS. CLARK:

THAT WAS NOT THE QUESTION.

# 16 THE COURT:

WHAT'S THE QUESTION?

# 17 MS. CLARK:

THE QUESTION WAS POSED, WHAT WAS THE MOCK CROSS-EXAMINATION INTENDED TO HANDLE AND WHY WAS THERE SOME SPECIAL NEED SEEN TO DO THE --

# 18 THE COURT:

LET ME GO GET THE QUESTION.

# 19 MS. CLARK:

THAT WAS THE GIST OF IT. THAT'S NOT --

# 20 THE COURT:

THE QUESTION WAS, WHAT IRRELEVANT EVIDENCE THAT WAS GOING TO BE BROUGHT INTO THE TRIAL WERE YOU PREPARING FOR.

# 21 MS. CLARK:

NO. NOT THAT WAS GOING TO BE BROUGHT INTO THE TRIAL. THAT COULD HAVE.

# 22 THE COURT:

THAT WAS THE QUESTION.

# 23 MR. DARDEN:

THAT'S WHY WE OBJECT. IF I CAN EXPLAIN IT. CAN I CONFER?

# 24 THE COURT:

CERTAINLY.

# 25 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 26 MS. CLARK:

THAT IS MY OBJECTION. THEY WANT HIM TO SIT THERE AND PUT OUT. NO, I DID GET IT RIGHT. I GOT IT RIGHT. THEY WANT TO -- THE QUESTION ASKS HIM TO DISCUSS WHAT THE COURT HAS ALREADY DEEMED TO BE IRRELEVANT. THAT'S ASKING HIM TO BRING IN WHAT THE COURT HAS EXCLUDED.

# 27 MR. BAILEY:

NO. IF YOUR HONOR PLEASES, THE TRANSCRIPT WILL SHOW THAT I INQUIRED OF HIM, BASED ON WHAT HE OFFERED THE JURY AT THE OUTSET AS THE SPECIAL SESSION TO ADDRESS THE SPECIAL PROBLEM, WHAT NEXUS THERE WAS BETWEEN HIS PROBLEM AND THE SESSION, AND HE SAID, "I HAD READ IN COURT PAPERS EFFORTS TO BRING IN IRRELEVANT EVIDENCE ABOUT ME," AND MY INQUIRY IS WHAT IRRELEVANT EVIDENCE DOES HE MEAN.

# 28 MS. CLARK:

AND THAT'S --

# 29 MR. BAILEY:

THEY'VE OPENED THIS DOOR, JUDGE. THIS IS FAIR GAME.

KEY QUOTE

# 30 MS. CLARK:

WE DIDN'T OPEN THE DOOR, YOUR HONOR. WE ADDRESSED THE SUBJECT MATTER OF CROSS-EXAMINATION, WHICH COUNSEL IS NOW LOOKING TO OPEN THE DOOR ON THROUGH HIS OWN CROSS-EXAMINATION, WHICH IS NOT PERMITTED. TO ASK THE WITNESS NOW TO DISCUSS WHAT THE COURT HAS DEEMED TO BE IRRELEVANT IS TO FLAUNT THE COURT'S RULING. BY ASKING THE WITNESS TO DISGORGE WHAT WE HAVE BEEN LITIGATING IN COURT, THAT CAN'T BE PROPER. HOW CAN THAT BE A PROPER QUESTION AND HOW CAN THE SUBJECT MATTER OF -- HOW CAN THAT QUESTION POSSIBLY BE ADMISSIBLE WHEN THE COURT HAS DEEMED IT TO BE IRRELEVANT AND ADMISSIBLE?

# 31 THE COURT:

BUT DON'T WE HAVE A PROBLEM HERE, THAT IF HE'S BEEN PREPARED AS A WITNESS -- I MEAN ISN'T THAT A RELEVANT AREA OF CROSS-EXAMINATION, OF WHAT THINGS HE'S BEEN PREPARED ON?

# 32 MS. CLARK:

YES AND NOT -- NO. BECAUSE WE DID NOT HAVE THE BENEFIT OF ALL POSSIBLE RULINGS THAT WERE GOING TO BE GONE INTO BY THE COURT.

THIS IS REALLY NASTY STUFF, YOU KNOW, AND COUNSEL KNOWS IT. THE FACT THAT WE PREPARE A WITNESS FOR CROSS-EXAMINATION, I HAVE NOT OBJECTED TO THEIR CROSS-EXAMINATION ON IT. THAT'S FAIR. WHAT I'M TALKING ABOUT IS, YOUR HONOR, BEFORE WE HANDLED ALL OF THE COURT'S RULINGS ON WHAT WOULD BE ADMISSIBLE AND WHAT WOULD NOT, WE HAD TO PREPARE WITH THIS WITNESS AS TO WHAT HE WOULD SAY IN RESPONSE TO CERTAIN QUESTIONS, QUESTIONS THAT ARE NOW NOT EVEN ASKABLE BECAUSE THE EVIDENCE IS NOT ADMISSIBLE, AND NOW YOU ARE GOING TO PERMIT HIM TO ASK, DISGORGE --

# 33 THE COURT:

NO. I RECOGNIZE THERE'S SOME DANGERS HERE. THE PROBLEM I HAVE IS THAT YOU ASKED THE QUESTION, WHY -- "CAN YOU TELL US WHY YOU FEEL NERVOUS AND RELUCTANT?" I MEAN THIS IS ON YOUR THIRD QUESTION, AND THEN HE GOES ON TO TELL US ABOUT THESE OTHER THINGS. I WAS REAL UNHAPPY WITH THAT QUESTION AND ANSWER BECAUSE OF WHAT IT OPENS UP.

# 34 MS. CLARK:

YOUR HONOR, IT DOESN'T OPEN UP THE DOOR TO ALLOW HIM TO TESTIFY --

# 35 THE COURT:

SURE, IT DOES.

# 36 MS. CLARK:

-- WHAT THE COURT DEEMED INADMISSIBLE.

# 37 THE COURT:

BUT I'M WORRIED ABOUT WHAT'S GOING TO COME UP.

I'M GOING TO TOSS THE JURY BACK AND LET YOU ASK THE QUESTION, AND LET'S SEE WHAT COMES OUT.

Temperature

tense

Key Quotes (4)

Marcia Clark

BY ASKING THE WITNESS NOW TO DISCUSS WHAT THE COURT HAS DEEMED TO BE IRRELEVANT IS TO FLAUNT THE COURT'S RULING. BY ASKING THE WITNESS TO DISGORGE WHAT WE HAVE BEEN LITIGATING IN COURT, THAT CAN'T BE PROPER.

Clark's core argument: Bailey's question is an end-run around admissibility rulings, not legitimate cross-examination.

Lance A. Ito

I WAS REAL UNHAPPY WITH THAT QUESTION AND ANSWER BECAUSE OF WHAT IT OPENS UP.

The judge signals that Clark's own direct examination question — asking why the witness felt nervous — is what created the opening for Bailey's cross.

F. Lee Bailey

THEY'VE OPENED THIS DOOR, JUDGE. THIS IS FAIR GAME.

Bailey's 'opened the door' argument, which the judge ultimately agrees with.

Lance A. Ito

I'M GOING TO TOSS THE JURY BACK AND LET YOU ASK THE QUESTION, AND LET'S SEE WHAT COMES OUT.

The judge rules against the prosecution and allows Bailey to pursue the line of questioning.

Notable Exchanges (3)

F. Lee Bailey•Christopher Darden•Lance A. Ito

Bailey objects when Darden tries to take over handling the witness from Clark, insisting on the 'one lawyer, one witness' convention. Ito sides with Bailey and directs Clark to handle her own witness.

strategic

Marcia Clark•Lance A. Ito

Clark disputes Ito's characterization of Bailey's question, arguing over whether the question asked about evidence 'going to be brought in' versus evidence that 'could have been.' Ito cuts through the parsing and rules against her.

heated

Marcia Clark•F. Lee Bailey

Clark accuses Bailey of trying to circumvent admissibility rulings through cross-examination; Bailey counters that the prosecution opened the door themselves on direct.

heated

Light Moments (2)

Lance A. Ito

Ito opens the sidebar with an aside about the staggering volume of transcript: 'IT'S UNBELIEVABLE WE HAVE 20,000 PAGES OF TRANSCRIPT ALREADY.'

F. Lee Bailey

Bailey responds dryly that the counter doesn't even have six digits to handle it.

Credibility Attacks (1)

⚔ Kathleen Bell

witness preparation / prior coaching

Bailey seeks to expose what excluded evidence the prosecution prepared Bell to address in the mock cross-examination, implying the coaching touched on inadmissible material about Fuhrman.

Objections

2 objections (0 sustained, 1 overruled)

Proceeding 5282 • 37 utterances

Criminal Trial

Department 103