Motion: videotape evidence admission

📄 Motion: videotape evidence admission — Friday, March 17, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\17\MOTION-VIDEOTAPE-EVIDENCE-ADMI.DOC

TRIAL

▲ Day 40 of 167

◀ Sidebar Direct examination of Det. Philip Vannatter (part 2) ▶

Date: Friday, March 17, 1995 • Utterances: 38

Outside the jury's presence, the prosecution played a videotape (likely of OJ Simpson in handcuffs following the murders) and sought to admit it. Defense counsel Shapiro objected on grounds that the tape falsely implied Simpson was under arrest when testimony established he wasn't arrested until June 17th, and also raised privilege concerns over audible attorney-client communications between Simpson and his attorney Howard Weitzman. Judge Ito sustained the objection pending proper foundation from Detective Vannatter.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 2 THE COURT:

ALL RIGHT. LADIES AND GENTLEMEN, THERE IS SOMETHING I NEED TO LOOK AT OUT OF YOUR PRESENCE AND I'M GOING TO ASK YOU TO STEP BACK. UNFORTUNATELY, THE PROBLEM THAT YOU BUZZED ABOUT HASN'T BEEN FIXED YET BUT WE ARE GOING TO TAKE OUR BREAK AT NOON, THOUGH. SO IF THERE IS A PROBLEM, I'M SURE WE SHOULD HAVE A HALL MONITOR FOR THE FACILITIES, BUT IT SHOULD ONLY BE ABOUT THREE TO FIVE MINUTES. SO IF YOU WILL JUST STEP BACK INTO THE JURY ROOM, PLEASE.

# 3 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

# 4 THE COURT:

MISS FORD, ARE YOU FORGETTING SOMETHING?

# 5 MS. FORD:

PARDON?

# 6 THE COURT:

ARE YOU FORGETTING SOMETHING? THANK YOU. ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. BE SEATED. MR. DARDEN, YOU HAD SOMETHING YOU WANTED TO SHOW US?

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

# 8 THE COURT:

ALL RIGHT. THE JURY HAS LEFT THE COURTROOM.

# 9 (AT 11:21.M. A VIDEOTAPE WAS PLAYED.)

# 10 (AT 11:24 A.M. THE PLAYING OF THE VIDEOTAPE CONCLUDED.)

# 11 THE COURT:

ALL RIGHT. THANK YOU, MR. DARDEN. ANY OBJECTIONS FROM THE DEFENSE?

# 12 MR. SHAPIRO:

YES, YOUR HONOR, WE WOULD OBJECT.

# 13 THE COURT:

ALL RIGHT. WHAT IS THE BASIS OF THE OBJECTION?

# 14 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 15 MR. SHAPIRO:

YOUR HONOR, I DON'T BELIEVE THAT IT ACCURATELY REFLECTS WHAT THE TESTIMONY HAS BEEN. THE TESTIMONY HAS BEEN HE WASN'T ARRESTED UNTIL THE 17TH, HE WASN'T CHARGED, AND PREVIOUS TESTIMONY FROM PREVIOUS WITNESSES HAVE BEEN THAT HE WAS NOT UNDER ARREST. AND THAT I DON'T BELIEVE THIS ACCURATELY -- THIS GIVES A FALSE IMPRESSION THAT HE WAS ARRESTED, AT LEAST TEMPORARILY.

KEY QUOTE

# 16 THE COURT:

BUT WE HAVE A CONCEPT IN THE LAW OF ARREST AND DETENTION, THE CONCEPT OF DETENTION SHORT OF ARREST, DON'T WE?

KEY QUOTE

# 17 MR. SHAPIRO:

WELL, WE HAVE NO TESTIMONY TO THAT YET, YOUR HONOR.

# 18 THE COURT:

ALL RIGHT. PERHAPS.

# 19 MR. SHAPIRO:

THERE IS NO FOUNDATION.

# 20 THE COURT:

AT THIS POINT. MR. DARDEN.

# 21 MR. DARDEN:

WELL, DETECTIVE VANNATTER IS HERE TO EXPLAIN THE VIDEO AND TO EXPLAIN TO US WHETHER OR NOT MR. SIMPSON WAS PLACED UNDER ARREST OR DETAINED, AND HE IS ALSO HERE TO EXPLAIN TO US HOW IT IS THAT MR. SIMPSON BECAME UNHANDCUFFED. CERTAINLY HE IS COMPETENT TO TESTIFY TO ALL OF THESE THINGS. HE IS A POLICE OFFICER.

# 22 MR. SHAPIRO:

WE WOULD -- I'M SORRY, ARE YOU DONE? WE WOULD ALSO, YOUR HONOR, OBJECT TO ANY OF THE AUDIO PORTIONS OF THAT TAPE WITH A REPORTER ASKING QUESTIONS, WITH MR. WEITZMAN MAKING SOME STATEMENTS TO HIS CLIENT, WHICH ARE PRIVILEGED COMMUNICATIONS, AND ARE ALL HEARSAY STATEMENTS.

# 23 THE COURT:

ALL RIGHT. I THINK THE AUDIO IS PREDOMINANTLY STILL CAMERAS CLICKING AND SOMEBODY'S ELECTRICAL GENERATOR. DO YOU NEED THE AUDIO ON THIS, MR. DARDEN?

# 24 MR. DARDEN:

MAY I HAVE ONE HOME, YOUR HONOR?

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

# 26 MR. DARDEN:

WE OVERHEAR NO CONVERSATIONS.

# 27 MR. SHAPIRO:

IF THEY DON'T HEAR CONVERSATIONS, THEN THERE WILL BE NO OBJECTION TO NOT HAVING THE AUDIO.

# 28 THE COURT:

MR. DARDEN?

# 29 MR. DARDEN:

I'M SAYING THAT I DON'T HEAR ANY CONVERSATIONS OR I DIDN'T HEAR A CONVERSATION BETWEEN MR. WEITZMAN AND MR. SIMPSON.

# 30 THE COURT:

DO YOU WANT THE --

# 31 MR. DARDEN:

YOU TELL ME. MAYBE I'M WRONG.

# 32 THE COURT:

DO YOU WANT THE AUDIO?

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

# 34 MR. DARDEN:

NOT AT THIS TIME, YOUR HONOR.

# 35 THE COURT:

ALL RIGHT. I'M GOING TO SUSTAIN THE OBJECTION TO THE TAPE AT THIS TIME UNTIL THERE IS A FOUNDATION FOR WHAT IT DEPICTS.

KEY QUOTE

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

# 37 MR. SHAPIRO:

THANK YOU, YOUR HONOR.

# 38 THE COURT:

ALL RIGHT. LET'S HAVE THE JURORS.

Temperature

procedural

Key Quotes (4)

Robert Shapiro

I DON'T BELIEVE THAT IT ACCURATELY REFLECTS WHAT THE TESTIMONY HAS BEEN. THE TESTIMONY HAS BEEN HE WASN'T ARRESTED UNTIL THE 17TH, HE WASN'T CHARGED, AND PREVIOUS TESTIMONY FROM PREVIOUS WITNESSES HAVE BEEN THAT HE WAS NOT UNDER ARREST.

Core defense objection — the tape would mislead the jury into believing Simpson was arrested when the defense contends he was merely detained, a legally significant distinction.

Lance A. Ito

BUT WE HAVE A CONCEPT IN THE LAW OF ARREST AND DETENTION, THE CONCEPT OF DETENTION SHORT OF ARREST, DON'T WE?

Ito pushes back on Shapiro, signaling he doesn't find the objection fully persuasive — but ultimately sustains it anyway for lack of foundation.

Robert Shapiro

WE WOULD ALSO, YOUR HONOR, OBJECT TO ANY OF THE AUDIO PORTIONS OF THAT TAPE WITH A REPORTER ASKING QUESTIONS, WITH MR. WEITZMAN MAKING SOME STATEMENTS TO HIS CLIENT, WHICH ARE PRIVILEGED COMMUNICATIONS, AND ARE ALL HEARSAY STATEMENTS.

Secondary objection invoking attorney-client privilege — if Weitzman's advice to Simpson was audible on tape, it would be a serious evidentiary problem.

Lance A. Ito

I'M GOING TO SUSTAIN THE OBJECTION TO THE TAPE AT THIS TIME UNTIL THERE IS A FOUNDATION FOR WHAT IT DEPICTS.

Ruling — tape excluded for now, prosecution must lay foundation through Detective Vannatter before it can be shown to the jury.

Evidence (1)

Informal

Videotape showing OJ Simpson apparently handcuffed or in custody, apparently filmed by press at the scene — context suggests the day after the murders when Simpson returned from Chicago

Played for court out of jury's presence; objected to; excluded pending foundation

Notable Exchanges (2)

Lance A. Ito•Robert Shapiro

Ito probes Shapiro's arrest objection by raising the legal concept of 'detention short of arrest,' but Shapiro holds firm that no testimonial foundation exists yet for that distinction.

strategic

Robert Shapiro•Christopher Darden

Shapiro raises privilege objection to audio; Darden consults off-record then concedes he doesn't need the audio, which resolves that specific objection.

procedural

Objections

2 objections (1 sustained, 0 overruled)

Proceeding 5325 • 38 utterances

Criminal Trial

Department 103