Administrative matters: transcripts

📄 Administrative matters: transcripts — Thursday, March 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\23\ADMINISTRATIVE-MATTERS-TRANSCR.DOC

TRIAL

▲ Day 44 of 167

◀ Cross-examination of Brian Kato Kaelin (part 8) Cross-examination of Brian Kato Kaelin (part 9) ▶

Date: Thursday, March 23, 1995 • Utterances: 38

Out of the jury's presence, Marcia Clark raises a dispute over Robert Shapiro's use of an uncertified transcript during his examination of Kato Kaelin, noting several discrepancies from the DA's certified version and requesting time to compare them. Judge Ito also rules on Clark's request for notes, finding them not discoverable because they are not impeachment material under 1054.3 and the subject matter had not yet been addressed on cross-examination.

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

# 2 THE COURT:

ALL RIGHT. MISS CLARK, ARE YOU PREPARED TO PROCEED OR DO YOU NEED THAT COPY TO PROCEED?

# 3 MS. CLARK:

I NEED THAT COPY, YOUR HONOR. YESTERDAY WHEN I WAS EXAMINING THE WITNESS, WE REFERRED TO A TRANSCRIPT THAT THE DISTRICT ATTORNEY'S OFFICE PREPARED THAT I HAD GIVEN TO MR. KAELIN TO EXAMINE. THE TRANSCRIPT THAT MR. SHAPIRO WAS USING TODAY IS ONE THAT HIS OFFICE OBVIOUSLY PREPARED. I HAVE FOUND SEVERAL DISCREPANCIES. NONE OF THEM ARE MAJOR ENOUGH FOR ME TO SAY DON'T USE THIS TRANSCRIPT. NEVERTHELESS, I HAVE NOT BEEN ABLE TO TRACK ALL THE INCONSISTENCIES ON ANY PARTICULAR GIVEN PASSAGE. I'M GOING TO NEED AN OPPORTUNITY TO EXAMINE AND COMPARE IT TO MY TRANSCRIPT BECAUSE MR. SHAPIRO HAS NEVER SHOWED US THAT COPY.

# 4 THE COURT:

ALL RIGHT. BUT YOU HAVE --

# 5 MS. CLARK:

OURS IS CERTIFIED. HIS IS NOT.

KEY QUOTE

# 6 THE COURT:

WAS THIS A TAPE-RECORDED STATEMENT?

# 7 MR. SHAPIRO:

YES, IT IS, YOUR HONOR.

# 8 THE COURT:

ALL RIGHT. DID YOU HAVE THE TAPE RECORDING?

# 9 MR. SHAPIRO:

WE ALSO HAVE IT. SO THERE SHOULD BE NO DISCREPANCY.

# 10 MS. CLARK:

WELL, NO. THE PROBLEM IS THAT OF COURSE, WE CANNOT COMPARE A TRANSCRIPT WE DON'T HAVE TO THE TAPE ITSELF OR THE TRANSCRIPT THAT WE HAVE. MR. SHAPIRO POPS THAT OUT TODAY, YOU KNOW, AT THE LAST MINUTE WHILE HE'S EXAMINING THE WITNESS AND ACCORDING TO THE WITNESS, HE HASN'T SEEN IT. SO WE DON'T KNOW WHETHER IT'S ACCURATE AND IT'S NOT CERTIFIED.

# 11 THE COURT:

ALL RIGHT. WELL, YOU'VE GOT A COPY OF IT.

# 12 MS. CLARK:

NO. I WILL.

# 13 THE COURT:

OR WILL HAVE SHORTLY. ALL RIGHT. AND IF THERE IS ANY DISCREPANCY, IF WE HAVE THE TAPE, THEN WE HAVE THE ABILITY TO GET ACTUALLY WHAT WAS SAID.

# 14 MS. CLARK:

YES, THANK YOU, YOUR HONOR. ALL I'M ARGUING TO THE COURT IS, I WILL BE ASKING FOR THE OPPORTUNITY TO EXAMINE AND COMPARE MINE TO HIS WHEN HE REFERS TO THAT TRANSCRIPT.

# 15 THE COURT:

SURE.

# 16 MS. CLARK:

THANK YOU. AND WITH RESPECT TO THE NOTES, YOUR HONOR?

# 17 THE COURT:

YES. WITH RESPECT TO THE NOTES, I HAVE REVIEWED THEM AND FOUND THEM NOT TO BE DISCOVERABLE.

# 18 MS. CLARK:

ON THE GROUNDS THAT THEY WOULD NOT BE IMPEACHING?

# 19 THE COURT:

ON THE GROUNDS THAT THEY ARE NOT IMPEACHMENT AND ALSO ON THE GROUNDS THAT THEY ARE NOT COVERED IN 1054.3. IN OTHER WORDS, IT'S NOT A STATEMENT BY A WITNESS CALLED BY THE DEFENSE.

# 20 MS. CLARK:

NO. BUT IT'S A STATEMENT TAKEN FROM A PROSECUTION WITNESS WHO AT THIS POINT IS BEING CROSS-EXAMINED.

# 21 THE COURT:

CORRECT. BUT HAS NOT BEEN CROSS-EXAMINED WITH REGARDS TO THIS YET.

# 22 MS. CLARK:

WITH REGARD TO THOSE SPECIFIC NOTES?

# 23 THE COURT:

THAT'S CORRECT.

# 24 MS. CLARK:

THE SUBJECT MATTER CERTAINLY THE NOTES BEING --

# 25 THE COURT:

THAT'S CORRECT.

# 26 MS. CLARK:

AND SO IT'S THE COURT'S RULING THAT BECAUSE THE NOTES SPECIFICALLY HAVE NOT BEEN ADDRESSED ON CROSS-EXAMINATION, THEY'RE NOT DISCOVERABLE?

# 27 THE COURT:

OR UNDER DIRECT. THAT'S CORRECT. ALL RIGHT. MR. GALL, WOULD YOU GIVE ONE COPY TO MR. SHAPIRO AND ONE COPY TO MISS CLARK, OR DO YOU HAVE YOUR OWN COPIES?

# 28 MR. SHAPIRO:

YES, I DO.

# 29 THE COURT:

ALL RIGHT. THEN BOTH COPIES ARE FOR MR. DARDEN AND MISS CLARK.

# 30 MS. CLARK:

PEOPLE'S OBJECTION AND REQUEST FOR THE NOTES.

# 31 THE COURT:

NOTED.

# 32 MS. CLARK:

THANK YOU.

# 33 THE COURT:

ALL RIGHT. I'LL MAKE THE COURT'S COPY OF THESE NOTES COURT'S NEXT EXHIBIT IN ORDER.

# 34 (COURT'S 9 FOR ID = NOTES)

# 35 MS. CLARK:

THANK YOU, YOUR HONOR.

# 36 THE COURT:

ALL RIGHT. THANK YOU COUNSEL. ALL RIGHT. LET'S HAVE THE JURORS, PLEASE. WHAT'S YOUR TIME ESTIMATE AT THIS POINT, MR. SHAPIRO?

# 37 MR. SHAPIRO:

SAME AS IT WAS WHEN I STARTED. 10 MINUTES.

# 38 THE COURT:

OKAY.

Temperature

procedural

Key Quotes (3)

Marcia Clark

MR. SHAPIRO POPS THAT OUT TODAY, YOU KNOW, AT THE LAST MINUTE WHILE HE'S EXAMINING THE WITNESS AND ACCORDING TO THE WITNESS, HE HASN'T SEEN IT. SO WE DON'T KNOW WHETHER IT'S ACCURATE AND IT'S NOT CERTIFIED.

Clark's core objection: Shapiro introduced an uncertified, unshared transcript mid-examination without prior disclosure to the prosecution or the witness.

Lance A. Ito

I HAVE REVIEWED THEM AND FOUND THEM NOT TO BE DISCOVERABLE.

The court's ruling denying Clark's request for the notes, based on both non-impeachment grounds and the scope of 1054.3.

Marcia Clark

OURS IS CERTIFIED. HIS IS NOT.

Concise articulation of the prosecutorial challenge to the defense transcript's reliability.

Evidence (3)

Court's 9 for ID

Notes reviewed in camera by the court, ruled not discoverable

marked as court exhibit, withheld from prosecution

Informal

DA's certified transcript of Kato Kaelin's tape-recorded statement

referenced as the prosecution's version for comparison

Informal

Defense-prepared uncertified transcript of Kato Kaelin's tape-recorded statement

used by Shapiro during examination; copy provided to prosecution

Notable Exchanges (2)

Marcia Clark•Lance A. Ito

Clark argues the notes should be discoverable because they concern a prosecution witness now under cross-examination; Ito holds firm that discoverability requires the specific notes to have been addressed in examination first.

strategic

Marcia Clark•Robert Shapiro

Clark objects to Shapiro's use of an uncertified, undisclosed transcript during Kaelin's examination; Shapiro responds that the underlying tape recording exists and should resolve any discrepancy.

tense

Light Moments (1)

Robert Shapiro

Shapiro, asked for his time estimate for finishing with the witness, gives the same answer he gave at the start: '10 minutes.'

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5395 • 38 utterances

Criminal Trial

Department 103