📄 Sidebar: witness credibility — Thursday, March 2, 1995
Address:
C:\DEPT103\CRIMINAL\1995\MAR\2\SIDEBAR-WITNESS-CREDIBILITY.DOC
TRIAL
▲ Day 29 of 167

Sidebar: witness credibility

Date: Thursday, March 2, 1995 • Utterances: 32
During a conditional examination of a Spanish-speaking witness about to leave for El Salvador, the prosecution and defense clash at sidebar over the scope of cross-examination and whether Cochran's objections constitute witness coaching. The proceeding ends with a light moment when the courtroom ELMO equipment blows a circuit, forcing the court to continue 'the old fashioned way.'
1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)
2 THE COURT:

WE'RE OVER HERE AT SIDEBAR.

3 MR. COCHRAN:

I OBJECT TO THAT. THIS IS POSSIBLE HARASSMENT. THEY'VE ALSO BEEN FOLLOWING HER APPARENTLY THREE CLOSEST FRIENDS. THAT'S -- I KNOW THE COURT HAS ALLOWED WIDE LATITUDE. WHAT'S THE RELEVANCE OF THAT? WHAT'S THE PROOF?

4 THE COURT:

MR. DARDEN.

5 MR. DARDEN:

I ONLY ASKED FOR FIRST NAMES FIRST OF ALL. SECOND OF ALL, YOU KNOW, WE ARE HAVING A CONDITIONAL EXAMINATION. WE'RE HAVING A CONDITIONAL EXAMINATION AS THIS WITNESS IS ABOUT TO LEAVE, RIGHT? OTHERWISE, SHE WOULD HAVE FILED THE UNEMPLOYMENT INSURANCE FORMS, RIGHT? SO I DON'T KNOW WHERE SHE'S GOING TO BE WHEN THE TIME COMES. AND THE COURT PROMISED WIDE LATITUDE IN CROSS-EXAMINATION. I'VE NEVER HAD A CHANCE TO SPEAK TO HER DESPITE MANY, MANY REQUESTS THAT WERE NEVER COMMUNICATED TO THE WITNESS.

6 MR. COCHRAN:

SHE MAY WANT TO TALK TO HER LAWYER. SHE MAY WANT TO RESPOND TO THAT.

7 MR. DARDEN:

I THINK IT'S APPROPRIATE I BE ALLOWED TO ASK HER IF SHE TOLD HER THREE CLOSEST FRIENDS WHO MAY END UP BEING REBUTTAL WITNESSES IN THE EVENT THAT THIS TAPE IS SHOWN TO THE JURY. WHAT ELSE CAN I DO? I HAVEN'T HAD A CHANCE TO TALK TO HER.

8 MR. COCHRAN:

THERE'S ABSOLUTELY NO BASIS FOR THAT QUESTION. FURTHERMORE, LET ME JUST STATE FOR THE RECORD, I'M GLAD WE'RE UP HERE. OTHERWISE, I WOULD HAVE HAD TO WAIT FOR A BREAK. AND THIS IS PREPOSTEROUS. IT SHOWS HOW DESPERATE THEY ARE WITH REGARD TO THIS. YOUR HONOR, ON SATURDAY, CHRIS DARDEN DID IN FACT CALL ME. I SAID, "MR. DARDEN, I'M NOT HER LAWYER. I WILL PUT CARL JONES IN TOUCH WITH YOU." I GOT OFF THE PHONE, I CALLED CHRIS -- I CALLED CARL JONES, TOLD HIM TO CALL CHRIS DARDEN. AT LUNCH TIME, MR. JONES TOLD ME HE CALLED, LEFT WORD ON HIS MACHINE, SAID, "LOOK, SHE DOESN'T WANT TO TALK TO YOU OR MARCIA CLARK." AND I'M SURE CHRIS HAS A PHONE MESSAGE TO THAT EFFECT. BUT THIS IS, YOUR HONOR, PREPOSTEROUS, WAY BEYOND ANY WIDE LATITUDE THAT YOU COULD GIVE. I THINK THIS IS HARASSMENT, YOUR HONOR. THIS LADY IS ABOUT TO GO TO EL SALVADOR, AND ASKING HER WHO HER THREE BEST FRIENDS ARE, WHAT TYPE OF MESSAGE ARE WE GOING TO SEND? THIS IS PREPOSTEROUS. IF THE COURT WANTS TO ASCERTAIN THAT INFORMATION, I THINK THAT'S ONE THING, BUT NOT IN THIS SETTING.

9 THE COURT:

ALL RIGHT. WELL, I THINK WHAT MR. DARDEN IS GOING TO ASK IS, "WHO ARE YOUR BEST -- THE FIRST NAMES OF YOUR THREE BEST FRIENDS? HAVE YOU TOLD ANY OF THESE PERSONS THIS INFORMATION? WHY OR WHY NOT?" I THINK THAT'S WHERE IT'S GOING. I SUSPECT THAT'S WHERE IT'S GOING. AM I CORRECT?

10 MR. DARDEN:

THAT'S CORRECT. AND GIVEN THE WITNESS' PRIOR INCONSISTENT STATEMENTS AND INABILITY TO RECALL --

11 THE COURT:

LET ME -- EXCUSE ME, MR. DARDEN. FORGIVE ME FOR INTERRUPTING YOU. YOU'RE JUST GOING TO ASK FOR THE FIRST NAMES, "DID YOU TELL SO AND SO AND SO AND SO"?

12 MR. DARDEN:

BASICALLY, YES.

13 THE COURT:

LET'S PROCEED.

14 MR. COCHRAN:

IS THAT ALL, YOUR HONOR?

15 MS. CLARK:

MAY I ADDRESS THE COURT ON A SEPARATE ISSUE? I WAS UPSTAIRS LISTENING TO THE TELEVISION FOR A BRIEF TIME UNTIL I COULD GET DOWN, AND WHAT BECAME VERY CLEAR TO ME IS THAT MR. COCHRAN'S OBJECTIONS, WHICH ARE BASICALLY COACHING SESSIONS, CANNOT REALLY AUDIBLY BE HEARD. IF WE WERE BEFORE -- THE PURPOSE OF VIDEOTAPING A CONDITIONAL EXAMINATION IS TO RECREATE THE SITUATION AS CLOSE AS IS POSSIBLE TO WHAT THE JURY WOULD SEE IN HERE. IF THE JURY WERE PRESENT TO SEE AND HEAR HIS BEHAVIOR WITH RESPECT TO THESE COACHING SESSIONS THAT HE'S GIVEN TO THE WITNESS, THEY WOULD BE VERY WELL AWARE OF THE FACT THAT SHE'S BEING TOLD WHAT TO SAY, HOW TO SAY IT. WHAT WE'RE BEING DEPRIVED OF HERE IS THE ABILITY OF THE JURY TO TAKE THAT INTO ACCOUNT TO EVALUATE HER CREDIBILITY, WHICH IS VERY IMPORTANT, WHICH IS WHY I ASK THE COURT TO ALLOW A MICROPHONE.

16 MR. COCHRAN:

MAY I RESPOND TO THAT? WHEN I OBJECT, I'M OBJECTING IN ENGLISH AND IT'S NOT BEING INTERPRETED TO THE WITNESS. AND AS SOON AS WE TAKE A BREAK, YOU'LL UNDERSTAND. THIS STUFF ABOUT TALKING, SIGNALLING, I HAVE NEVER SIGNALLED A WITNESS IN MY LIFE AND I WOULD NEVER DO THAT. I'LL CALL ONE OF YOUR STAFF OUT TO CLEAR UP EXACTLY WHAT HAPPENED. THAT'S ABSOLUTELY PREPOSTEROUS. THESE PEOPLE ARE DESPERATE. I DON'T -- IF I GIVE SPEAKING OBJECTIONS, YOUR HONOR, THIS LADY IS SPEAKING IN SPANISH. IF I'M REALLY TRYING TO COACH HER, WHY WOULD I BOTHER TO OBJECT TO THEIR QUESTION?

17 THE COURT:

MRS. CLARK, LET ME JUST MAKE AN OBSERVATION. YOU KNOW, THE RECORD FOR CONDITIONAL EXAMINATION IS ACTUALLY THE COURT REPORTER'S TRANSCRIPT, AND THE FACT WE HAVE A VIDEO IS SORT OF A BACKUP TO THAT. THE OBJECTIONS ARE RECORDED IN THE RECORD, AND IF IT'S RELEVANT AT SOME POINT IN TIME, WE HAVE IT MEMORIALIZED.

18 MS. CLARK:

OKAY. AND SINCE WE ARE SHOWING THE VIDEOTAPE, HER ABILITY TO UNDERSTAND IS GOING TO BE VERY IMPORTANT AS WELL AS HER ABILITY TO UNDERSTAND MR. COCHRAN.

19 THE COURT:

MISS CLARK, I'VE GOT A REAL RELUCTANCE PUTTING LIVE MICROPHONES ON COUNSEL TABLE ON EITHER SIDE. I REALLY DO. I DON'T TRUST THESE PEOPLE. I MEAN WE SAW WHAT HAPPENED AT THE PRELIMINARY HEARING AND I --

KEY QUOTE
20 MS. CLARK:

THAT'S RIGHT. IT'S A PROBLEM.

21 THE COURT:

IT'S A PROBLEM. SO WE HAVE THE COURT REPORTER'S RECORD WHICH IS THE VERBATIM TRANSCRIPT.

22 MS. CLARK:

SPEAK A LITTLE LOUDER, MR. COCHRAN.

23 MR. COCHRAN:

I WILL OBJECT TO ALL THESE OBJECTIONABLE QUESTIONS.

24 THE COURT:

I'M GOING TO ASK -- COUNSEL, THE PROCEDURE WILL BE, VOICE YOUR OBJECTION, THEN I'LL SAY, STATE YOUR GROUNDS, YOUR LEGAL GROUNDS. BUT ALL I WANT OUT OF YOU IS "OBJECTION."

25 MR. DARDEN:

BEFORE WE GO BACK, APPARENTLY THE ELMO WITH ALL OF THIS STUFF HAS BLOWN A FUSE.

26 THE COURT:

I WAS WONDERING WHEN THAT WAS GOING TO HAPPEN.

27 MR. FAIRTLOUGH:

DEPUTY MAGNERA HAS CALLED THE ELECTRICIAN. WE HAVE NO POWER TO RUN ANYTHING RIGHT NOW.

28 THE COURT:

WE OVERLOADED THE CIRCUIT, HUH?

29 MR. FAIRTLOUGH:

EVERYTHING WENT OUT AT ONCE.

30 THE COURT:

ALL RIGHT. HOLD ON. MISS FITZPATRICK, ARE WE HAVING A PROBLEM?

31 MR. FAIRTLOUGH:

EVERYTHING IS DOWN.

32 THE COURT:

THIS HAD TO HAPPEN SOONER OR LATER. LET'S PROCEED. WE WILL JUST HAVE TO DO IT THE OLD FASHION WAY.

KEY QUOTE

Temperature

tense

Key Quotes (4)

Marcia Clark
MR. COCHRAN'S OBJECTIONS, WHICH ARE BASICALLY COACHING SESSIONS, CANNOT REALLY AUDIBLY BE HEARD.
Clark accuses Cochran of using speaking objections to coach the witness, raising a structural problem with the videotaped conditional examination.
Lance A. Ito
I'VE GOT A REAL RELUCTANCE PUTTING LIVE MICROPHONES ON COUNSEL TABLE ON EITHER SIDE. I REALLY DO. I DON'T TRUST THESE PEOPLE.
Ito's candid distrust of both counsel is unusually blunt; he references misconduct at the preliminary hearing.
Johnnie Cochran
IF I'M REALLY TRYING TO COACH HER, WHY WOULD I BOTHER TO OBJECT TO THEIR QUESTION?
Cochran's logical defense against Clark's coaching accusation — objections go on the record; coaching would not.
Lance A. Ito
THIS HAD TO HAPPEN SOONER OR LATER. LET'S PROCEED. WE WILL JUST HAVE TO DO IT THE OLD FASHION WAY.
Ito's dry response to a full courtroom power failure; sets the tone of pragmatic endurance.

Evidence (2)

Informal
Videotaped conditional examination of the witness, intended to preserve testimony before she departs for El Salvador
discussed — admissibility and presentation to jury debated
Informal
ELMO projector/display equipment
failed — blew a fuse during the sidebar, taking out power to the room

Notable Exchanges (2)

Marcia ClarkJohnnie CochranLance A. Ito
Clark argues that Cochran's objections function as coaching because they are not audibly captured on the videotape and the Spanish-speaking witness is present. Cochran denies coaching and points out his objections are in English, not interpreted to the witness. Ito declines to add live microphones, citing the court reporter's transcript as the authoritative record.
heated
Christopher DardenJohnnie Cochran
Darden argues he should be permitted to ask the witness for the first names of her three closest friends as potential rebuttal witnesses; Cochran calls it harassment and 'preposterous,' arguing Darden's office was already told the witness did not wish to speak with them.
strategic

Light Moments (1)

Lance A. Ito
The ELMO equipment blows a fuse mid-sidebar, cutting power to the entire room. Ito quips 'I WAS WONDERING WHEN THAT WAS GOING TO HAPPEN' and 'WE OVERLOADED THE CIRCUIT, HUH?' before declaring they'll proceed 'the old fashion way.'

Credibility Attacks (2)

⚔ Rosa Lopez (implied — Spanish-speaking witness leaving for El Salvador)
prior inconsistent statements, limited recall
Darden references the witness's 'prior inconsistent statements and inability to recall' as justification for asking about her friends, suggesting they may be needed as rebuttal witnesses if her taped testimony is shown to the jury.
⚔ Johnnie Cochran
misconduct allegation — witness coaching via speaking objections
Clark argues Cochran's objections on the videotaped examination function as coaching sessions that the jury would evaluate as influencing the witness's testimony, but which are inaudible on the tape.

Objections

2 objections (0 sustained, 0 overruled)
Proceeding 5114 • 32 utterances
Criminal Trial
Department 103
⚖️ Start
📂 MAR 2, 1995 📄 Sidebar: witness credibility
MAR 2, 1995 KRT DvH TD