Cross-examination of Brian Kato Kaelin (part 9)

📄 Cross-examination of Brian Kato Kaelin (part 9) — Thursday, March 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\23\CROSS-EXAMINATION-OF-BRIAN-KAT.DOC

TRIAL

▲ Day 44 of 167

◀ Administrative matters: transcripts Voir dire of Brian Kato Kaelin ▶

Witness: Brian "Kato" Kaelin
Examiner: Robert Shapiro
Called by: Prosecution • Date: Thursday, March 23, 1995 • Lines: 137

Shapiro cross-examines Kato Kaelin using a transcript of their Tuesday, June 14 interview to refresh Kaelin's recollection about the mood at O.J. Simpson's house on Monday, Simpson's sore and stiff feet, and the timing between the noise and Kaelin next seeing Simpson. Shapiro then separately asks whether Kaelin observed an injury, bleeding, or a bandage on Simpson's left index or middle finger at 11:00 and seeks to display an unidentified photograph as a People's exhibit. The excerpt ends after Clark requests voir dire for lack of foundation and the court allows it.

# 1 THE COURT:

BE SEATED, PLEASE. THANK YOU. THE RECORD SHOULD REFLECT WE'VE BEEN REJOINED BY ALL MEMBERS OF OUR JURY PANEL. MR. KAELIN IS AGAIN PRESENT. MR. SHAPIRO, YOU MAY CONTINUE.

# 2 MR. SHAPIRO:

THANK YOU. MAY I APPROACH THE WITNESS, YOUR HONOR?

# 3 THE COURT:

YOU MAY.

# 4 MR. SHAPIRO:

THANK YOU.

# 5 Q:

BY MR. SHAPIRO: MR. KAELIN, WOULD YOU BE KIND ENOUGH TO REVIEW THE BOTTOM OF PAGE 7 REGARDING MONDAY NIGHT BETWEEN 9:00 AND 10:00, PLEASE.

# 6 A:

JUST THAT ONE LINE?

# 7 Q:

THE QUESTION AND THE ANSWER AND THEN -- WELL, TO THE BOTTOM OF THE PAGE AND TO THE BEGINNING OF THE NEXT PAGE.

# 8 A:

JUST THE BEGINNING.

# 9 Q:

DOES THAT REFRESH YOUR MEMORY AS TO WHAT WE SPOKE ABOUT ON THE 14TH?

# 10 A:

YES.

# 11 Q:

AND DID YOU HAVE A CLEAR IMPRESSION AS TO WHAT YOUR CONVERSATIONS WERE THE NIGHT BEFORE ON THE 13TH WITH O.J. SIMPSON WHEN YOU AND I DISCUSSED IT ON THE 14TH?

# 12 A:

YES.

# 13 Q:

AND AFTER REFRESHING --

# 14 A:

I'M SORRY. THE -- YOU ASKED ME TWO QUESTIONS. THE FIRST ONE WAS THE TUESDAY AND THEN THE MONDAY, CORRECT? IF YOU COULD JUST REPEAT THAT BECAUSE I WAS LOOKING AT --

# 15 Q:

SO YOU'RE NOT CONFUSED, WE TALKED ON TUESDAY.

# 16 A:

YES.

# 17 Q:

AND MY QUESTION TO YOU IS, WHEN WE TALKED ON TUESDAY, AFTER REVIEWING A TRANSCRIPT OF THAT CONVERSATION, DOES THAT REFRESH YOUR MEMORY AS TO WHAT YOU REMEMBER TAKING PLACE ON MONDAY?

# 18 A:

YES.

# 19 Q:

AND WHAT DO YOU REMEMBER TAKING PLACE REGARDING ANY CONVERSATION YOU HAD WITH O.J. SIMPSON ON MONDAY BETWEEN 9:00 AND 10:00 O'CLOCK?

# 20 A:

THAT I SAID THIS.

# 21 Q:

OKAY. WHAT DID YOU SAY?

# 22 A:

READ IT?

# 23 Q:

IF YOU DON'T REMEMBER IT, YOU CAN READ IT.

# 24 A:

WELL, IT WAS, UH, WITH THE T.V. ON AND THERE WAS A LOT OF PEOPLE IN THE HOUSE AND, UH, AND I PUT AN ARM AROUND HIM AND EVERYBODY WAS TALKING KIND OF TO THE T.V. AND IT WAS -- IT WAS KIND OF LIKE EVERYBODY IN SHOCK.

# 25 Q:

DID HE SAY HE COULDN'T BELIEVE IT?

# 26 A:

I -- I -- I DON'T REMEMBER.

# 27 Q:

WOULD YOU REFRESH YOUR MEMORY AGAIN. TAKE YOUR TIME. TAKE YOUR TIME.

# 28 A:

AND HE SAID HE COULDN'T BELIEVE IT.

# 29 Q:

AND WHAT DID YOU SAY?

# 30 A:

AND I COULDN'T BELIEVE IT.

# 31 Q:

AND WAS EVERYBODY IN SHOCK AT THAT TIME?

# 32 A:

YES. THE T.V. WAS ON AND A LOT OF PEOPLE IN THE HOUSE.

# 33 Q:

WAS EVERYBODY IN SHOCK AT THAT TIME?

# 34 A:

I DON'T KNOW WHAT YOU MEAN EXACTLY BY SHOCK.

# 35 Q:

I WOULD LIKE TO REFRESH YOUR MEMORY BY WHAT YOU -- WHAT WE TALKED ABOUT THAT TUESDAY.

# 36 A:

YEAH, SHOCK IS THE WORD. SO THEY'RE ALL -- IT WAS A VERY BIG THING, YES.

KEY QUOTE

# 37 Q:

THAT TUESDAY, WAS YOUR MEMORY OF THE NIGHT BEFORE THAT EVERYBODY AT O.J.'S HOUSE WAS IN SHOCK?

# 38 A:

YES.

# 39 Q:

AND WAS YOUR MEMORY THAT IT WAS A PRETTY QUIET TIME THERE?

# 40 A:

YES.

# 41 Q:

AND NOT MANY WORDS WERE SPOKEN?

# 42 A:

RIGHT. I WASN'T SAYING MUCH AT ALL.

# 43 Q:

NOR WAS ANYBODY ELSE?

# 44 A:

WELL, I -- YEAH. AT THE TIME I WAS THERE, NOT -- NOT MANY PEOPLE WERE SPEAKING. BUT I LEFT TO --

# 45 Q:

WELL, YOU CAN ONLY TELL US ABOUT WHEN YOU WERE THERE.

# 46 A:

YES. THERE -- THERE WAS SOME -- THERE WAS SOME TALKING LIKE TO THE T.V. SET, YOU KNOW, BECAUSE THERE WAS COMMENTS GOING ON, I REMEMBER THAT, BUT --

# 47 Q:

WERE YOU ALONE PRIVATELY WITH O.J. WHEN YOU HAD ANY CONVERSATIONS ON THAT MONDAY NIGHT?

# 48 A:

NO. THERE WAS ALWAYS PEOPLE AROUND.

# 49 Q:

WHAT ABOUT TUESDAY? DID YOU TALK TO HIM ON TUESDAY?

# 50 A:

NO.

# 51 Q:

YOU DIDN'T SEE HIM AT ALL ON TUESDAY, DID YOU?

# 52 A:

NO, I DID NOT.

# 53 Q:

AND YOU DIDN'T TALK TO HIM?

# 54 A:

NO.

# 55 Q:

DID YOU OBSERVE -- DID YOU LEARN THAT -- ON THE NIGHT OF THE MURDERS, YOU TOLD US THAT O.J. WAS TIRED AND NOT LOOKING FORWARD TO FLYING ALREADY. DID YOU ALSO EXPRESS KNOWLEDGE THAT HE HAD SAID HIS FEET WERE STIFF?

# 56 A:

HE MIGHT HAVE HAD HIS FEET ON THE TABLE IN THE NOOK AREA. I COULD HAVE SAID THAT.

# 57 Q:

WOULD IT REFRESH YOUR MEMORY TO LOOK AT THE TRANSCRIPT --

# 58 A:

YES.

# 59 Q:

-- ON PAGE 8 RIGHT AT THE MIDDLE OF THE PAGE? DO YOU SEE WHERE I'M REFERRING? LET ME HELP YOU OUT.

# 60 A:

NEXT TO THE "KK," IT SAYS, "O.J.'S MOOD"?

# 61 Q:

YES.

# 62 A:

OKAY. "TIRED, NOT LOOK --"

# 63 THE COURT:

JUST READ IT TO YOURSELF, SEE IF THAT REFRESHES YOUR RECOLLECTION.

# 64 BRIAN "KATO" KAELIN:

UH-HUH.

# 65 THE COURT:

MR. SHAPIRO.

# 66 Q:

BY MR. SHAPIRO: DO YOU RECALL WHAT YOU TOLD ME ON TUESDAY ABOUT O.J.'S MOOD AND WHETHER OR NOT HE WAS STIFF?

# 67 A:

YES.

# 68 Q:

WHAT DID YOU SAY?

# 69 MS. CLARK:

WELL, I OBJECT AND ASK THE WITNESS NOT TO READ, JUST TO REFRESH HIS RECOLLECTION.

# 70 THE COURT:

ALL RIGHT.

# 71 BRIAN "KATO" KAELIN:

OH, I WASN'T GOING TO. YES. THAT WAS A REFERENCE FROM ME TO TAKE A JACUZZI BECAUSE I SAID, YEAH, I KNOW WHAT IT'S LIKE TO BE STIFF. SO -- YES. HIS FEET WERE SORE.

# 72 Q:

BY MR. SHAPIRO: AND STIFF?

# 73 A:

AND STIFF.

# 74 Q:

DID YOU HAVE A CONVERSATION WITH ME ON THAT TUESDAY REGARDING THE NOISE YOU HEARD OUTSIDE?

# 75 A:

ON THE INTERVIEW?

# 76 Q:

YES.

# 77 A:

YES. WE TALKED ABOUT IT.

# 78 Q:

AND DO YOU RECALL SAYING THAT YOU TOLD THE DETECTIVES IT'S PROBABLY NOTHING?

# 79 A:

UH, THAT IT WAS PROBABLY NOTHING, YES.

# 80 Q:

AND DO YOU RECALL TELLING ME IN RESPONSE TO A QUESTION AFTER YOU HEARD THAT NOISE HOW MUCH TIME ELAPSED BETWEEN THE TIME THAT YOU HEARD THE NOISE AND YOU NEXT SAW O.J. SIMPSON?

# 81 A:

UMM, YES.

# 82 Q:

AND YOUR ANSWER WAS THREE TO FIVE MINUTES LATER?

# 83 A:

YEAH. IN -- ON THAT -- CAN I SAY SOMETHING?

# 84 Q:

IS THAT YOUR ANSWER; THREE TO FIVE MINUTES LATER?

# 85 MS. CLARK:

YOUR HONOR, THE WITNESS WOULD LIKE TO EXPLAIN HIS ANSWER.

# 86 MR. SHAPIRO:

I'M GOING TO LET HIM EXPLAIN. I JUST WANT TO KNOW IF THAT'S HIS ANSWER FIRST.

# 87 THE COURT:

MR. KAELIN.

# 88 BRIAN "KATO" KAELIN:

YES.

# 89 Q:

BY MR. SHAPIRO: ALL RIGHT. WOULD YOU LIKE TO OFFER A FURTHER EXPLANATION?

# 90 A:

YES.

# 91 Q:

WHAT IS THAT?

# 92 A:

ON -- ON THAT WAS, THREE, FIVE MINUTES WAS MY PART OF THE -- ON THE REST THAT I FINISHED -- THAT'S WHEN I WAS TALKING TO -- TO RACHEL AND THAT'S WHAT I -- I -- I THOUGHT AT THE TIME WAS THE QUESTIONING BECAUSE ON THE -- WHERE IT SAYS THAT IT WAS ME SAYING UH, SO I HUNG UP THE PHONE WITH RACHEL. IT WAS ON THAT -- I DON'T KNOW WHAT PAGE.

# 93 Q:

WOULD YOU LOOK AT PAGE 18. IT'S ON PAGE 18. MY QUESTION TO YOU WAS: "HOW MUCH TIME ELAPSED BETWEEN HEARING THE NOISE AND SEEING O.J.," REFERRING TO O.J. SIMPSON.

# 94 A:

RIGHT.

# 95 Q:

DO YOU SEE WHERE THAT IS?

# 96 A:

UH-HUH. YES, I DO.

# 97 Q:

AND DO YOU SEE WHAT YOUR ANSWER IS?

# 98 A:

YEAH. IT'S --

# 99 Q:

DOES THAT REFRESH YOUR MEMORY AS TO WHAT YOU TOLD ME ON TUESDAY?

# 100 A:

THE -- THE -- THAT'S PART OF IT.

# 101 Q:

OKAY. WHAT -- WHAT -- WHAT DID -- WHAT DID -- WHAT DID YOU SAY ON TUESDAY? THAT'S MY QUESTION.

# 102 A:

THAT I WAS --

# 103 MS. CLARK:

OBJECTION. THAT'S ASKED AND ANSWERED, YOUR HONOR.

# 104 THE COURT:

OVERRULED.

# 105 BRIAN "KATO" KAELIN:

IT -- IT SAYS ABOUT THREE TO FIVE MINUTES.

KEY QUOTE

# 106 Q:

BY MR. SHAPIRO: AND WHAT ELSE DOES IT SAY?

# 107 A:

BECAUSE THAT'S WHEN I RAN OUT AND SAW THE LIMO, AND I TOLD HER IMMEDIATELY THAT I -- I TOLD HER I GOT TO CHECK THIS OUT, CHECK OUT THIS NOISE. I TALKED TO HER FOR MAYBE ANOTHER MINUTE OR SO CONVINCING MYSELF THAT I WAS GOING TO GO OUT THERE.

# 108 Q:

DID YOU NOTICE AT ANY TIME THAT EVENING WHETHER OR NOT THE BRONCO HAD BEEN MOVED?

# 109 A:

NO.

# 110 MS. CLARK:

OBJECTION, YOUR HONOR. THAT ASSUMES FACTS NOT IN EVIDENCE, THAT HE EVER SAW THE BRONCO THAT NIGHT.

# 111 THE COURT:

OVERRULED.

# 112 Q:

BY MR. SHAPIRO: NOW, REGARDING THE BLOOD THAT WAS POINTED OUT TO YOU BY THE POLICE OFFICERS, DO YOU KNOW WHETHER OR NOT THAT BLOOD WAS THERE ON SATURDAY?

# 113 A:

NO.

# 114 Q:

AT 11:00 O'CLOCK, WHEN YOU LAST SAW O.J. SIMPSON, DID YOU SEE ANY INJURY TO HIS INDEX FINGER ON HIS LEFT HAND?

# 115 A:

NO.

# 116 Q:

DID YOU SEE ANY BLEEDING ON HIS INDEX FINGER TO HIS LAST -- LEFT HAND?

# 117 A:

NO.

# 118 Q:

DID YOU SEE ANY BANDAGE ON HIS INDEX FINGER TO HIS LEFT HAND?

# 119 A:

NO.

# 120 THE COURT:

EXCUSE ME. COUNSEL WISH TO --

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

# 122 Q:

BY MR. SHAPIRO: I'M BEING CORRECTED. I'M TALKING ABOUT THE MIDDLE FINGER INSTEAD OF THE INDEX FINGER.

# 123 A:

STILL NO.

# 124 Q:

OKAY. SO FOR THE SAME QUESTIONS, YOU WOULD SAY -- GIVE THE SAME ANSWERS FOR THE MIDDLE FINGER ON THE LEFT HAND.

# 125 (NO AUDIBLE RESPONSE.)

# 126 THE COURT:

IS THAT YES?

# 127 BRIAN "KATO" KAELIN:

YES.

# 128 THE COURT:

THANK YOU.

# 129 Q:

BY MR. SHAPIRO: HAVE YOU SEEN ANY PHOTOGRAPHS OF, PICTURES DEPICTING MR. SIMPSON'S LEFT HAND ON THAT NIGHT OR THE NEXT DAY?

# 130 A:

DID I SEE --

# 131 Q:

HAVE YOU SEEN ANY PHOTOGRAPHS?

# 132 A:

YES.

# 133 Q:

ANY PHOTOGRAPHS? DID YOU SEE HIS FINGER IN THAT CONDITION AT 11:00 O'CLOCK ON THE NIGHT THAT HE LEFT FOR CHICAGO?

# 134 THE COURT:

I THINK THAT QUESTION IS VAGUE BECAUSE WE DON'T KNOW WHAT PHOTOGRAPH HE'S REFERRING TO.

# 135 MR. SHAPIRO:

MAY WE PUT THE PHOTOGRAPH UP ON THE ELMO, THE PEOPLE'S EXHIBIT, YOUR HONOR?

# 136 MS. CLARK:

WELL, IF HE HASN'T SEEN IT, YOUR HONOR, THERE'S NO FOUNDATION. MAY I TAKE THE WITNESS ON VOIR DIRE?

# 137 THE COURT:

ALL RIGHT.

Temperature

procedural

Key Quotes (4)

Kato Kaelin

STILL NO.

Kaelin's dry response after Shapiro had to correct himself mid-examination, switching from 'index finger' to 'middle finger' after an off-record consultation with co-counsel. One of the most memorable moments for its brevity.

Kato Kaelin

IT -- IT SAYS ABOUT THREE TO FIVE MINUTES.

Establishes Kaelin's prior statement placing 3-5 minutes between hearing the thumping noise and seeing OJ — a critical timeline point the defense was pinning down.

Kato Kaelin

YEAH, SHOCK IS THE WORD. SO THEY'RE ALL -- IT WAS A VERY BIG THING, YES.

Kaelin described the gathering at O.J. Simpson's house on Monday night as quiet, with the people present in shock.

Kato Kaelin

THAT WAS A REFERENCE FROM ME TO TAKE A JACUZZI BECAUSE I SAID, YEAH, I KNOW WHAT IT'S LIKE TO BE STIFF. SO -- YES. HIS FEET WERE SORE.

Kaelin testified that Simpson's feet were sore and stiff.

Evidence (3)

Informal

Transcript of Shapiro's Tuesday June 14 interview with Kato Kaelin, used throughout to refresh recollection

used to refresh recollection; specific pages referenced (pp. 7, 8, 18)

People's exhibit (unspecified)

Unidentified photograph Shapiro sought to display as a People's exhibit during questioning about O.J. Simpson's left hand

Shapiro attempts to display via ELMO; Clark requests voir dire and proceeding halts

Informal

Blood referenced in Shapiro's question as having been pointed out to Kaelin by police officers

Kaelin asked whether it was present Saturday; answered no knowledge

Notable Exchanges (3)

Robert Shapiro•Kato Kaelin

Shapiro asks about injury to OJ's 'index finger on his left hand,' gets three clean denials, then has to stop and correct himself to 'middle finger' after an off-record consult with co-counsel. Kaelin responds 'Still no.'

revealing

Robert Shapiro•Kato Kaelin•Marcia Clark

Clark stated that Kaelin wanted to explain his three-to-five-minute answer, and Shapiro allowed him to explain after first confirming the answer. Later, during additional questioning about the interview transcript, Clark objected that the question had been asked and answered, and Ito overruled the objection.

strategic

Marcia Clark•Lance A. Ito

Clark requested to take Kaelin on voir dire for lack of foundation before Shapiro displayed the photograph; the court allowed the request, and the excerpt ends.

strategic

Light Moments (2)

Kato Kaelin

After Shapiro spends several questions asking about OJ's 'index finger on his left hand' and receiving denials, he has an off-record consult and must correct himself to 'middle finger.' Kaelin's two-word response: 'Still no.'

Kato Kaelin

When asked to keep reading from the transcript to himself, Kaelin says 'UH-HUH' and the judge has to prompt Shapiro to continue.

Credibility Attacks (1)

⚔ Kato Kaelin

refreshing recollection

Shapiro uses Kaelin's own June 14 interview transcript throughout to pin him to specific prior statements — about the 3-5 minute gap after the thumps, OJ's physical state, and the mood at the house — where Kaelin's in-court recollection is vague or drifting.

Witness Demeanor

Hesitant and halting throughout — frequent use of 'uh,' 'um,' and self-interruption

Repeatedly needs questions rephrased or memory refreshed from transcript

Attempts multiple times to expand or explain answers beyond yes/no, requiring redirection

(No audible response) when asked to confirm answers about the middle finger

Objections

4 objections (0 sustained, 2 overruled)

Proceeding 5396 • 137 lines • Prosecution witness

Criminal Trial

Department 103