Afternoon session opening

📄 Afternoon session opening — Thursday, March 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\23\AFTERNOON-SESSION-OPENING.DOC

TRIAL

▲ Day 44 of 167

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

Date: Thursday, March 23, 1995 • Utterances: 26

Court returns from lunch recess with Kato Kaelin still on the stand. Two procedural matters are addressed before the jury is brought back: Clark raises Shapiro's repeated use of 'O.J.' instead of the court-ordered 'Mr. Simpson,' and the court discusses a discovery dispute over defense investigator notes from an interview with Kaelin, which Shapiro argues are work product and non-discoverable.

# 1 (AT 12:00 P.M. THE NOON RECESS WAS TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)

# 2 (JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.)

# 3 (CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

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

# 5 THE COURT:

BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE AGAIN PRESENT. MR. KAELIN IS ON THE STAND. COUNSEL, ANYTHING WE NEED TO DISCUSS BEFORE WE INVITE THE JURORS TO REJOIN US?

# 6 MS. CLARK:

YES, YOUR HONOR, ONE MATTER.

# 7 THE COURT:

YES, MISS CLARK.

# 8 MS. CLARK:

I BELIEVE THIS COURT HAD INSTRUCTED COUNSEL TO REFER TO THE DEFENDANT AS MR. SIMPSON AND NOT O.J., AND THERE HAVE BEEN REPEATED REFERENCES TO THAT BY MR. SHAPIRO.

KEY QUOTE

# 9 THE COURT:

THAT IS CORRECT. WE ALSO HAD THE ONE OTHER DISCOVERY MATTER REGARDING A STATEMENT BY MR. KAELIN TO AN INVESTIGATOR FOR THE DEFENSE. ANY COMMENTS? THE COURT HAS HAD THE OPPORTUNITY TO REVIEW THAT STATEMENT. ANY COMMENTS, MR. SHAPIRO?

# 10 MR. SHAPIRO:

YES, YOUR HONOR. WE BELIEVE UNDER THE RECIPROCAL RULES OF DISCOVERY, THAT THESE ITEMS ARE NOT DISCOVERABLE AND BELIEVE THAT THEY FALL UNDER NO EXCEPTION IN THE CODE, ALTHOUGH WE HAVE -- HAD NO OBJECTION TO YOUR HONOR REVIEWING THOSE SHORT NOTES.

# 11 THE COURT:

ALL RIGHT. YOU DON'T FEEL THAT THIS IS A STATEMENT BY A PROSECUTION WITNESS WHICH THEY'RE ENTITLED TO KNOW ON THE CROSS-EXAMINATION AS TO THE ISSUES IN THE STATEMENT?

# 12 MR. SHAPIRO:

THEY'RE NOT IMPEACHING. THE STATEMENTS ARE NOT INCONSISTENT AND OFFER NO IMPEACHMENT FROM WHAT THIS WITNESS HAS STATED. SO THEY'RE OF NO VALUE AND THEY'RE OUR PERSONAL WORK PRODUCT.

KEY QUOTE

# 13 THE COURT:

ALL RIGHT. ANY OTHER COMMENT, MISS CLARK?

# 14 MS. CLARK:

YES, YOUR HONOR. THEY DON'T HAVE TO BE IMPEACHING. THAT'S NOT THE -- THAT'S NOT THE TEST. AND I DON'T KNOW WHAT THEY ARE. I HAVEN'T SEEN THEM. SO I CAN'T ARGUE WHETHER THEY'RE IMPEACHING OR NOT. BUT ASSUMING COUNSEL'S CHARACTERIZATION IS TRUE, THAT DOESN'T PREVENT THEM FROM BEING DISCOVERABLE. AND ARGUABLY, IF THEY ARE ALSO CORROBORATING, THEN OF COURSE THEY WOULD BE MATERIAL TO THE REDIRECT EXAMINATION.

KEY QUOTE

# 15 THE COURT:

ALL RIGHT. I'LL EXAMINE A LITTLE MORE CLOSELY. I DON'T THINK WE'RE GOING TO FINISH WITH MR. KAELIN ON CROSS THIS AFTERNOON.

# 16 MS. CLARK:

OH.

# 17 MR. SHAPIRO:

MY CROSS?

# 18 THE COURT:

YES.

# 19 MR. SHAPIRO:

YES. WE'RE GOING TO FINISH WITH MR. KAELIN PROBABLY WITHIN THE NEXT 10 MINUTES.

# 20 THE COURT:

ALL RIGHT. WELL, THEN I'LL NEED TO TAKE A CLOSER LOOK AT THIS THEN. ALL RIGHT. LET'S PROCEED. LET'S FINISH WITH THE CROSS, AND THEN I'LL EVALUATE THIS TO SEE, ONCE I KNOW WHAT THE TOTALITY OF THE CROSS IS, WHETHER OR NOT THERE'S ANYTHING IN HERE THAT'S RELEVANT.

# 21 MR. SHAPIRO:

WELL, MAYBE WE'RE NOT GOING TO FINISH.

# 22 THE COURT:

15.

# 23 MS. CLARK:

YOUR HONOR, HOW LATE WILL WE GO TODAY?

# 24 THE COURT:

HOPEFULLY TILL WE FINISH.

# 25 MS. CLARK:

GREAT. THANK YOU.

# 26 THE COURT:

ALL RIGHT. LET'S HAVE THE JURORS, PLEASE.

Temperature

procedural

Key Quotes (3)

Marcia Clark

I BELIEVE THIS COURT HAD INSTRUCTED COUNSEL TO REFER TO THE DEFENDANT AS MR. SIMPSON AND NOT O.J., AND THERE HAVE BEEN REPEATED REFERENCES TO THAT BY MR. SHAPIRO.

Clark flags a protocol violation by the defense — using 'O.J.' humanizes the defendant and may have been a deliberate strategy by Shapiro.

Robert Shapiro

THEY'RE NOT IMPEACHING. THE STATEMENTS ARE NOT INCONSISTENT AND OFFER NO IMPEACHMENT FROM WHAT THIS WITNESS HAS STATED. SO THEY'RE OF NO VALUE AND THEY'RE OUR PERSONAL WORK PRODUCT.

Shapiro argues the defense investigator notes on Kaelin are protected work product, previewing the discovery fight.

Marcia Clark

THEY DON'T HAVE TO BE IMPEACHING. THAT'S NOT THE -- THAT'S NOT THE TEST. AND I DON'T KNOW WHAT THEY ARE. I HAVEN'T SEEN THEM.

Clark correctly pushes back on Shapiro's narrow framing — discoverable material isn't limited to impeachment evidence.

Evidence (1)

Informal

Defense investigator's notes from interview with Kato Kaelin

disputed as work product; court reviewing for discoverability

Notable Exchanges (2)

Lance A. Ito•Robert Shapiro

Shapiro initially expects to finish Kaelin's cross within 10 minutes, then immediately walks it back to 15, then hedges further — suggesting he may extend deliberately to delay the discovery ruling.

strategic

Marcia Clark•Lance A. Ito

Clark asks how late court will go; Ito says 'hopefully till we finish' and Clark responds 'Great. Thank you' — she wants maximum time with witnesses.

collegial

Light Moments (1)

Robert Shapiro

Shapiro says cross will finish 'within the next 10 minutes,' then immediately revises to 15, then says 'Well, maybe we're not going to finish' — a rapid retreat suggesting strategic maneuvering.

Objections

None recorded

Proceeding 5393 • 26 utterances

Criminal Trial

Department 103