Sidebar: defense notes

📄 Sidebar: defense notes — Thursday, March 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\23\SIDEBAR-DEFENSE-NOTES.DOC

TRIAL

▲ Day 44 of 167

◀ Cross-examination of Brian Kato Kaelin (part 1) Cross-examination of Brian Kato Kaelin (part 2) ▶

Date: Thursday, March 23, 1995 • Utterances: 15

During cross-examination of a prosecution witness, Marcia Clark made a discovery motion demanding that the defense turn over interview notes taken by investigators Pavelic and Hostetler during meetings with the witness. Judge Ito agreed the notes were potentially required under discovery rules since they were being used for impeachment, and ordered Shapiro to submit them for in camera review over the lunch break.

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

# 2 THE COURT:

WE ARE OVER AT THE SIDE BAR. MISS CLARK, DO YOU HAVE AN OBJECTION?

# 3 MS. CLARK:

YES, YOUR HONOR. I'M GOING TO OBJECT AND MAKE A DISCOVERY MOTION. IT IS CLEAR TO ME THAT THERE ARE INTERVIEWS AND NOTES THAT THE DEFENSE IS IN POSSESSION OF CONCERNING INTERVIEWS OF THIS WITNESS THAT HAVE NOT BEEN TURNED OVER. AND NOW THAT WE ARE AT THE MOMENT OF CROSS-EXAMINATION I DON'T THINK THAT IT WOULD HAVE BEEN APPROPRIATE TO ASK FOR THE DISCOVERY PRIOR TO THIS TIME, BUT NOW SINCE THEY ARE CROSS-EXAMINING HIM WITH RESPECT TO STATEMENTS THAT WERE MADE BETWEEN THIS WITNESS AND THE DEFENDANT, WE ARE AWARE OF THE FACT THAT -- WHICH WE ARE NOT PRIVY TO -- WE ARE AWARE OF THE FACT, THROUGH THIS WITNESS' TESTIMONY, THAT INTERVIEWS WERE CONDUCTED WITH PAVELIC AND HOSTETLER IN WHICH NOTES WERE TAKEN, ACCORDING TO THIS WITNESS' TESTIMONY, WHICH THE PEOPLE HAVE NOT RECEIVED. AND THE PEOPLE MAKE A MOTION OR DISCOVERY OF THOSE NOTES AT THIS TIME.

# 4 MR. SHAPIRO:

WE WOULD OBJECT. WE DON'T THINK THAT FALLS WITHIN THE PURVIEW OF THE DISCOVERY STATUTE.

# 5 THE COURT:

WELL, THIS IS NOW IMPEACHMENT OF A PROSECUTION WITNESS, AND IF THOSE NOTES HAVE ANYTHING TO DO WITH WHAT IS GOING ON NOW, I THINK YOU ARE REQUIRED TO TURN THOSE OVER.

KEY QUOTE

# 6 MR. SHAPIRO:

OKAY. I WILL TURN THEM INTO YOUR HONOR FOR REVIEW.

# 7 THE COURT:

ALL RIGHT. ARE YOU CLAIMING -- YOU ARE ASKING FOR A 1054.7 HEARING ON THIS?

# 8 MR. SHAPIRO:

YES.

# 9 THE COURT:

ALL RIGHT.

# 10 MS. CLARK:

I NEED TO SEE THOSE NOTES AND IT IS AT THE MOMENT OF CROSS-EXAMINATION.

# 11 MR. SHAPIRO:

YOU ARE NOT GOING TO BE TALKING FOR ANOTHER DAY ANYWAY, SO YOU WILL HAVE PLENTY OF TIME.

KEY QUOTE

# 12 THE COURT:

ALL RIGHT. WHAT WE WILL DO IS WHEN WE TAKE THE BREAK, I WILL ASK MR. SHAPIRO TO GIVE THE NOTES TO THE COURT, AND HOPEFULLY I WILL HAVE A CHANCE OVER THE LUNCH HOUR TO REVIEW THEM.

# 13 MS. CLARK:

THANK YOU, YOUR HONOR.

# 14 THE COURT:

DEPENDING ON HOW EXTENSIVE THEY ARE, HAVING NO IDEA WHAT THEY ARE.

# 15 MS. CLARK:

THANK YOU. ALL RIGHT.

Temperature

tense

Key Quotes (3)

Marcia Clark

IT IS CLEAR TO ME THAT THERE ARE INTERVIEWS AND NOTES THAT THE DEFENSE IS IN POSSESSION OF CONCERNING INTERVIEWS OF THIS WITNESS THAT HAVE NOT BEEN TURNED OVER.

Frames the prosecution's discovery complaint — defense was using undisclosed notes to impeach their own witness mid-cross.

Lance A. Ito

THIS IS NOW IMPEACHMENT OF A PROSECUTION WITNESS, AND IF THOSE NOTES HAVE ANYTHING TO DO WITH WHAT IS GOING ON NOW, I THINK YOU ARE REQUIRED TO TURN THOSE OVER.

Ito's ruling that the impeachment context triggered disclosure obligations, overriding Shapiro's initial resistance.

Robert Shapiro

YOU ARE NOT GOING TO BE TALKING FOR ANOTHER DAY ANYWAY, SO YOU WILL HAVE PLENTY OF TIME.

Dismissive jab at Clark suggesting urgency was overblown — a rare moment of courtroom snark in an otherwise procedural exchange.

Evidence (1)

Informal

Interview notes taken by defense investigators Pavelic and Hostetler during meetings with the prosecution witness

demanded by prosecution; Shapiro ordered to submit to court for in camera review

Notable Exchanges (2)

Marcia Clark•Robert Shapiro

Clark pressed for immediate access to the notes at the moment of cross-examination; Shapiro deflected with a dismissive remark that she wouldn't be questioning the witness for another day anyway.

adversarial

Lance A. Ito•Robert Shapiro

Shapiro initially objected that the notes fell outside the discovery statute; Ito disagreed and ruled they must be submitted, with Shapiro quickly acquiescing.

strategic

Light Moments (1)

Robert Shapiro

Shapiro telling Clark she won't be examining the witness for another day anyway, implying her urgency was unnecessary.

Credibility Attacks (1)

⚔ prosecution witness (unnamed)

prior inconsistent statement / impeachment via defense investigator notes

Defense was cross-examining the witness using notes from interviews conducted by Pavelic and Hostetler — interviews whose contents the prosecution had never received.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5409 • 15 utterances

Criminal Trial

Department 103