Sidebar: 1989 testimony

📄 Sidebar: 1989 testimony — Thursday, March 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\23\SIDEBAR-1989-TESTIMONY.DOC

TRIAL

▲ Day 44 of 167

◀ Redirect examination of Brian Kato Kaelin (part 2) Jury instruction: inadmissible testimony ▶

Date: Thursday, March 23, 1995 • Utterances: 55

At sidebar, the parties dispute whether Marcia Clark improperly elicited testimony from Kato Kaelin about the 1989 domestic violence incident — testimony he had no personal knowledge of, making it hearsay. Shapiro demands a strong jury admonition and raises bad faith, while Clark argues Shapiro opened the door with his own questioning about Michelle. Judge Ito decides to review the transcript and admonish the jury before the long weekend.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 THE COURT:

WE ARE OVER AT SIDEBAR. MISS CLARK, WHAT WAS THAT?

# 3 MS. CLARK:

WHAT WAS THAT? HIS KNOWLEDGE OF THE RELATIONSHIP OF MICHELLE AND NICOLE.

# 4 THE COURT:

BUT HE WASN'T THERE IN 1989.

# 5 MS. CLARK:

HE WASN'T THERE, BUT HE KNOWS ABOUT IT, AND IT GOES TO EXPLAIN HIS STATE OF MIND WITH RESPECT TO WHAT MR. SHAPIRO WAS GETTING INTO WITH MICHELLE.

# 6 MR. SHAPIRO:

YOUR HONOR, MR. SHAPIRO WAS PROHIBITED AT SIDEBAR FROM ASKING ANYTHING ABOUT MICHELLE.

# 7 MS. CLARK:

SOME QUESTIONS DID COME IN THOUGH ABOUT IT.

# 8 MR. SHAPIRO:

NONE CAME IN.

# 9 MS. CLARK:

YOUR HONOR STOPPED HIM MID-STREAM I THOUGHT.

# 10 THE COURT:

I STOPPED IT BECAUSE I SAID I DIDN'T WANT TO GET INTO ALL OF THAT AND I SUSTAINED YOUR OBJECTION TO GETTING INTO ALL OF THAT.

# 11 MS. CLARK:

I THOUGHT HE DID GET SOME WAYS INTO IT, YOUR HONOR. I DID.

# 12 THE COURT:

THAT'S WHEN I --

# 13 MS. CLARK:

I KNOW WE STOPPED IT AT SOME POINT.

# 14 THE COURT:

MISS CLARK, I PULLED HIM OVER HERE AND STOPPED IT BECAUSE I DIDN'T WANT TO GET INTO NICOLE VERSUS MICHELLE.

# 15 MR. SHAPIRO:

AND NOW IT'S IN.

# 16 MS. CLARK:

I THOUGHT HE DID.

# 17 THE COURT:

NO.

# 18 MR. DARDEN:

I DON'T THINK HE ANSWERED.

# 19 MR. SHAPIRO:

HE ANSWERED.

# 20 MS. CLARK:

NO, HE DIDN'T, NOT THIS LAST QUESTION.

# 21 MR. SHAPIRO:

YOU REMEMBER, HE TESTIFIED THAT MICHELLE WAS SLAPPED BY NICOLE.

# 22 MR. COCHRAN:

AND HE NEVER TESTIFIED TO THAT. WE LOOKED AT EACH OTHER AND MADE NOTES OF THAT EXACTLY.

# 23 MR. SHAPIRO:

IT'S CLEARLY IN THE RECORD.

# 24 MR. COCHRAN:

AND THEN THE PART ABOUT '89, HE WASN'T THERE.

# 25 MS. CLARK:

AND I THOUGHT HE GOT THAT OUT YESTERDAY.

# 26 MR. SHAPIRO:

I WOULD LIKE A SERIOUS ADMONITION TO THE JURY.

# 27 THE COURT:

ALL RIGHT. MISS CLARK, PUTTING THAT ASIDE, THAT DOOR IS OPEN. AS FAR AS MICHELLE IS CONCERNED, THAT'S A DIFFERENT ISSUE.

WHAT'S THIS '89 BUSINESS? HE WASN'T THERE. HE DOESN'T KNOW ANYTHING ABOUT MICHELLE AND OPENING DOORS OR ANYTHING LIKE THAT. THIS IS JUST HEARSAY FROM SOMEBODY.

# 28 MS. CLARK:

WELL, IT WOULD BE HEARSAY, BUT IT IS RELEVANT TO HIS STATE OF MIND WITH RESPECT TO THE RELATIONSHIP OF MICHELLE AND NICOLE BECAUSE I THOUGHT THAT'S WHAT WE HAD GOTTEN INTO. I THOUGHT WE HAD GOTTEN INTO THAT, GONE DOWN THAT ROAD A WAYS BEFORE IT STOPPED.

# 29 THE COURT:

NO.

# 30 MR. DARDEN:

CAN WE HAVE MR. COCHRAN NOT TESTIFY? HE'S SHAKING HIS FISTS, MAKING FACIAL EXPRESSIONS.

KEY QUOTE

# 31 MR. COCHRAN:

MR. DARDEN, PLEASE STOP BEING UNREASONABLE. I'M STANDING HERE NOT SAYING ANYTHING.

# 32 MR. DARDEN:

I'M NOT BEING UNREASONABLE.

# 33 THE COURT:

WELL, WE HAVE JUST CREATED ANOTHER QUAGMIRE FOR OURSELVES HERE.

KEY QUOTE

# 34 MS. CLARK:

I THOUGHT THE QUAGMIRE WAS ALREADY THERE. I THOUGHT SOME OF THE TESTIMONY CAME OUT ABOUT MICHELLE.

# 35 THE COURT:

NO. THAT'S WHY I STOPPED IT, BECAUSE I DIDN'T WANT TO GET INTO THAT.

# 36 MS. CLARK:

YOUR HONOR, ARE YOU SURE NOTHING CAME IN?

# 37 THE COURT:

WE ARE GOING TO BREAK RIGHT NOW. I WANT TO LOOK AT THE RECORD AND SEE WHAT WE'VE GOT HERE. BUT I'M GOING TO ADMONISH THE JURY TO DISREGARD THE TESTIMONY ABOUT 1989 AND MICHELLE BECAUSE THIS WITNESS WAS NOT EVEN IN CONTACT.

# 38 MR. SHAPIRO:

YOUR HONOR, I WOULD LIKE EVEN STRONGER LANGUAGE THAN THAT. SOMETIMES ALL OF US ASK A QUESTION, BUT THIS ONE IS A QUESTION THAT GOES TO THE HEART OF THIS CASE AND IS ONE THAT CLEARLY THERE WAS NO GOOD FAITH IN ASKING AND THE JURY SHOULD BE SO ADMONISHED. THEY'RE GONE FOR THE WEEKEND NOW, FOR A THREE-DAY WEEKEND ENDING ON THIS, AND IT IS ABSOLUTELY UNFAIR TO MR. SIMPSON, ABSOLUTELY UNFAIR TO HIS LAWYERS AND IT LEAVES A TREMENDOUS MISIMPRESSION ON THE PART OF THE JURY.

KEY QUOTE

# 39 THE COURT:

ALL RIGHT. MISS CLARK.

# 40 MS. CLARK:

YOUR HONOR, I WOULD LIKE TO BE ABLE TO LOOK AT THE TRANSCRIPT BEFORE WE EVEN DISCUSS THIS ISSUE. MR. SHAPIRO HAS GONE INTO WITH THIS WITNESS A NUMBER OF THINGS. I REALLY THINK MR. SHAPIRO ASKING FOR -- I THINK HE'S MAKING A GREAT DEAL MORE OF IT THAN IT DESERVES, BECAUSE I THOUGHT THAT THIS DOOR WAS OPENED BY MR. SHAPIRO. I DO NOT THINK IT WAS COMPLETELY FORECLOSED, AND I WOULD LIKE AN OPPORTUNITY TO LOOK AT THE TRANSCRIPT TO SEE WHAT CAME OUT IN THIS REGARD BECAUSE THIS WITNESS KNOWS CERTAIN THINGS ABOUT THE NATURE OF THE RELATIONSHIP BETWEEN MICHELLE AND NICOLE AND BETWEEN NICOLE AND THE DEFENDANT WHICH IS RELEVANT TO HIS STATE OF MIND AND HIS BIAS AND HIS CREDIBILITY. AND SO A LOT WAS DONE ON THE OTHER SIDE.

# 41 THE COURT:

WELL, I EXPRESSED TO YOU WHEN WE TALKED ABOUT THIS THE FIRST TIME MY RELUCTANCE TO GET INTO THIS BECAUSE I FELT GETTING INTO THE RELATIONSHIP BETWEEN NICOLE AND MICHELLE IS TANGENTIAL TO THAT CASE IF NOT COMPLETELY IRRELEVANT. THAT'S WHY I STOPPED IT WHEN YOU MADE THE OBJECTION. AND I THINK I DRAGGED YOU GUYS OVER HERE BEFORE YOU DID. I DIDN'T WANT TO GET INTO IT. BUT, MR. SHAPIRO, I'LL TAKE UNDER SUBMISSION YOUR REQUEST FOR A STRONGER ADMONITION OTHER THAN DISREGARD. AS TO THE SANCTIONS, AS YOU KNOW, I NORMALLY LIKE TO SLEEP ON SANCTION REQUESTS. BUT THAT'S WHY WE STOPPED AND CAME OVER HERE, BECAUSE I WAS SURPRISED THAT CAME OUT.

# 42 MR. SHAPIRO:

YOUR HONOR, MY CONCERN --

# 43 THE COURT:

I KNOW WHAT YOUR CONCERN IS. AND I'M GOING TO TELL THEM THAT -- I AM GOING TO TELL THEM THAT THE REASON I HAD YOU OVER AT SIDEBAR WAS, MR. KAELIN OBVIOUSLY HAD NO CONTACT WITH THESE PEOPLE IN 1989 AND WAS NOT COMPETENT TO TESTIFY REGARDING AN INCIDENT IN 1989.

# 44 MR. SHAPIRO:

BUT THE QUESTION WAS -- OPENED THE DOOR THAT MICHELLE -- OPENED THE DOOR FOR O.J. TO BEAT NICOLE. THERE'S NO EVIDENCE OF THAT. IT'S BAD FAITH. IT'S --

# 45 MS. CLARK:

WELL, THERE IS EVIDENCE, PLENTY OF EVIDENCE OF THAT. IT'S CERTAINLY NOT BAD FAITH. WE HAVE EVIDENCE TO THAT EFFECT.

# 46 THE COURT:

HOLD ON. LET ME JUST MAKE AN OBSERVATION. MY RECOLLECTION OF THE '89 TESTIMONY WAS, MICHELLE CAME OVER TO THE POLICE CAR AND TRIED TO GET NICOLE TO COME BACK IN THE HOUSE, SAYING, "YOU DON'T WANT TO DO THIS. YOU DON'T WANT TO GET INVOLVED WITH THE POLICE. DON'T DO THIS."

# 47 MS. CLARK:

NO. WE ARE TALKING ABOUT SOMETHING ELSE. I WOULD LIKE TO LET MR. DARDEN ADDRESS THAT BECAUSE THAT'S HIS PART. BUT WE DO HAVE EVIDENCE OF THAT. THAT WAS NOT DONE --

# 48 THE COURT:

GETTING OUT OF THE CAR TO GET BEATEN?

# 49 MS. CLARK:

NO. WE HAVE EVIDENCE OF THE FACT THAT MICHELLE LET O.J. IN THE DOOR, IN THE HOUSE WHEN NICOLE WAS TRYING TO HIDE FROM HIM, THAT SHE OPENED THE DOOR TO LET HIM IN WHEN HE BEAT HER.

KEY QUOTE

# 50 THE COURT:

IN '89?

# 51 MS. CLARK:

IN 1989.

# 52 MR. SHAPIRO:

THAT'S NOT WHAT SHE SAID. SHE DIDN'T SAY SHE OPENED THE DOOR SO HE COULD COME IN AND BEAT HER.

# 53 MR. COCHRAN:

AND WITH THIS WITNESS --

# 54 MR. SHAPIRO:

WITH THIS WITNESS -- AND I MEAN, IT'S CONDUCT TWICE REMOVED.

# 55 THE COURT:

YEAH. I'M NOT COMFORTABLE WITH ANY OF THIS. ALL RIGHT. WE'LL TAKE A BREAK AT THIS POINT.

Temperature

tense

Key Quotes (4)

Lance A. Ito

WELL, WE HAVE JUST CREATED ANOTHER QUAGMIRE FOR OURSELVES HERE.

Ito's exasperated summary of the evidentiary mess created by Clark's question about 1989 — a witness with no personal knowledge testifying about a key domestic violence incident.

Marcia Clark

WE HAVE EVIDENCE OF THE FACT THAT MICHELLE LET O.J. IN THE DOOR, IN THE HOUSE WHEN NICOLE WAS TRYING TO HIDE FROM HIM, THAT SHE OPENED THE DOOR TO LET HIM IN WHEN HE BEAT HER.

First explicit articulation in this sidebar of the prosecution's theory about Michelle's role in the 1989 beating — a damaging allegation the court was trying to keep out.

Robert Shapiro

YOUR HONOR, I WOULD LIKE EVEN STRONGER LANGUAGE THAN THAT. SOMETIMES ALL OF US ASK A QUESTION, BUT THIS ONE IS A QUESTION THAT GOES TO THE HEART OF THIS CASE AND IS ONE THAT CLEARLY THERE WAS NO GOOD FAITH IN ASKING.

Shapiro's most aggressive moment — accusing Clark of bad faith and seeking sanctions, framing the question as prejudicial misconduct rather than a slip.

Christopher Darden

CAN WE HAVE MR. COCHRAN NOT TESTIFY? HE'S SHAKING HIS FISTS, MAKING FACIAL EXPRESSIONS.

Rare moment of sidebar friction between co-counsel on opposite sides, with Darden accusing Cochran of nonverbal advocacy during the conference.

Evidence (1)

Informal

The 1989 domestic violence incident — specifically Michelle's alleged role in opening the door to OJ while Nicole hid from him

disputed as to whether it was properly before the jury; Ito orders jury admonition to disregard

Notable Exchanges (3)

Marcia Clark•Robert Shapiro•Lance A. Ito

Multi-party dispute over whether any 1989/Michelle testimony actually came in before the judge stopped it. Clark insists it did; Shapiro and Ito say it did not. Ito calls a break to review the transcript himself.

heated

Christopher Darden•Johnnie Cochran

Darden accuses Cochran of 'shaking his fists' and making facial expressions during sidebar. Cochran denies it, telling Darden to 'stop being unreasonable.'

testy

Marcia Clark•Lance A. Ito

Ito corrects Clark's recollection of the 1989 incident — he remembers Michelle trying to get Nicole back inside away from police; Clark counters with the prosecution's version (Michelle opening the door for OJ to beat Nicole). Ito is visibly uncomfortable.

revealing

Credibility Attacks (1)

⚔ Marcia Clark

bad faith allegation

Shapiro argues Clark's question about the 1989 incident had 'no good faith' basis given that Kaelin had no personal knowledge of it, and requests sanctions in addition to a jury admonition.

Objections

None recorded

Proceeding 5402 • 55 utterances

Criminal Trial

Department 103