THE OBJECTION IS THAT MISLEADS THE JURY INTO BELIEVING THAT THERE WAS ANY PREPARATION AT THAT TIME IN TERMS OF WHAT WE WERE REALLY GOING TO QUESTION THE WITNESS ABOUT OR HOW WE WERE GOING TO STRUCTURE DIRECT. THERE WAS NONE. THAT DIDN'T OCCUR UNTIL AFTER THAT, WAY AFTER THAT, SO THAT THERE WOULDN'T HAVE BEEN ANY STRATEGIZING, THERE WOULDN'T HAVE BEEN ANY PLANNING THE INFERENCE THAT MR. BAILEY IS SEEKING TO DRAW IS HAD THE NEWSWEEK ARTICLE NOT COME OUT WE WOULD NOT HAVE EXPOSED THE FACT THAT WE HAD PREPARED THE CASE WITH THE WITNESS AND QUESTIONED HIM ABOUT THESE THINGS. AND THAT IS NOT A FAIR INFERENCE BECAUSE WE HADN'T PREPARED FOR WHAT WE WERE GOING TO ASK YET. THAT WAS -- THAT WAS WHAT PART OF THE GRAND JURY SESSION WAS ABOUT.
MISLEADING UNDER 352. IT WILL CONFUSE THE JURY. IT WILL MISLEAD THE JURY. THIS IS DECEPTIVE. YOU KNOW, IT ALSO GOES TO WORK PRODUCT, YOUR HONOR. YOU KNOW, HOW WE PLAN AND WHEN WE PLAN AND STRATEGIZE THE QUESTIONING OF A WITNESS IS A MATTER -- IT'S A SUBJECT MATTER OF WORK PRODUCT THAT THE COURT IS PERMITTING COUNSEL TO GO INTO. THIS WITNESS DOESN'T KNOW THE NICETIES OF THIS, BUT THIS IS A MATTER OF WHEN WE REALLY SAT DOWN TO FIGURE OUT WHAT WE WERE TO GO ASK ABOUT, IN WHAT ORDER, HOW HIS DIRECT EXAMINATION WAS GOING TO BE STRUCTURED, SO AT THE POINT IN TIME THAT COUNSEL IS REFERRING TO THAT HADN'T OCCURRED YET. I DIDN'T EVEN REALLY BEGUN -- I AM TRYING TO THINK WHEN I REALLY STRUCTURED THE MATTER OF QUESTIONING. IT WAS PRETTY LATE -- IT WAS PRETTY LATE. I DIDN'T EVEN BEGIN IT I THINK UNTIL A WEEK BEFORE HE TOOK THE STAND. HE WOULDN'T KNOW THAT. HE DOESN'T KNOW. WE SIT AND WE REVIEW FACTS AND WE TALK ABOUT WHAT HE REMEMBERS, YOU KNOW, AND I ASK HIM TO REVIEW HIS PRELIM TESTIMONY AND YOU KNOW WHAT I MEAN, THE WAY PEOPLE WOULD ORDINARILY PREPARE A WITNESS. BUT I DID NOT ACTUALLY SAY "WE ARE GOING TO DO THIS" ACTUALLY UNTIL - I'M TRYING TO THINK WHEN I DID. IT DOESN'T MATTER WHEN I DID IT.
THE WHOLE AREA IS IRRELEVANT, YOUR HONOR, AND WHAT COUNSEL IS TRYING TO ELICIT FROM THIS WITNESS, BY WAY OF INFERENCE, THIS WITNESS CAN'T EVEN KNOW ABOUT AND WE ARE TALKING AS WELL ABOUT WORK PRODUCT.
ARE YOU TAKING THE POSITION THAT PREPARING WITNESSES TO TESTIFY IS IRRELEVANT?
KEY QUOTENO, NO, I'M NOT. I'M TAKING THE POSITION THAT ASKING THIS WITNESS TO SPECULATE OR TO TRY TO DRAW THE INFERENCE FROM THIS WITNESS THAT WE WOULD NOT HAVE DIVULGED THE GRAND JURY EXAMINATION BUT FOR THE NEWSWEEK ARTICLE IS UNFAIR AND MISLEADING TO THE JURY BECAUSE HE DOESN'T KNOW WHAT WE WERE PLANNING TO DO BEFORE, AFTER OR DURING.
I'M NOT ASKING HIM TO DRAW ANY INFERENCE. I'M ASKING HIM IF A PLAN WAS EVER MADE KNOWN TO HIM BETWEEN THE EVENTS AND THE PUBLICATION, AND I THINK THAT IS A SIMPLE HISTORICAL FACT, BUT WHAT ARGUMENT IS MADE OF IT IS SOMETHING YOUR HONOR MAY TO RULE ON LATER. I THINK IT A FAIR QUESTION UNDER THE CIRCUMSTANCES.
ALL RIGHT. THE OBJECTION IS OVERRULED, ASSUMING THE QUESTION IS REASKED IN THAT PARAMETER, WHETHER OR NOT IT PRECEDED.
THE INFERENCE THAT MR. BAILEY IS SEEKING TO DRAW IS HAD THE NEWSWEEK ARTICLE NOT COME OUT WE WOULD NOT HAVE EXPOSED THE FACT THAT WE HAD PREPARED THE CASE WITH THE WITNESS AND QUESTIONED HIM ABOUT THESE THINGS.
I DIDN'T EVEN BEGIN IT I THINK UNTIL A WEEK BEFORE HE TOOK THE STAND. HE WOULDN'T KNOW THAT.
I'M ASKING HIM IF A PLAN WAS EVER MADE KNOWN TO HIM BETWEEN THE EVENTS AND THE PUBLICATION, AND I THINK THAT IS A SIMPLE HISTORICAL FACT.
ARE YOU TAKING THE POSITION THAT PREPARING WITNESSES TO TESTIFY IS IRRELEVANT?