Sidebar: derogatory language

📄 Sidebar: derogatory language — Thursday, March 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\23\SIDEBAR-DEROGATORY-LANGUAGE.DOC

TRIAL

▲ Day 44 of 167

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

Date: Thursday, March 23, 1995 • Utterances: 25

The defense demanded an offer of proof and sanctions after Clark asked a witness whether OJ called Nicole a 'bitch,' a reference to the 911 tape. Clark offered to replay the 911 tape as her proof and argued the line of questioning went to the witness's bias, credibility, and reluctance to be forthcoming. Ito agreed the offer of proof was adequate but suggested there was no need to belabor the point since the jury had already absorbed the material.

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

# 2 THE COURT:

WE'RE OVER AT SIDEBAR. MR. SHAPIRO.

# 3 MR. SHAPIRO:

YES. WE WOULD ASK FOR AN OFFER OF PROOF. AND IF THERE IS NO OFFER OF PROOF, IN LIGHT OF THE PRIOR CONDUCT THIS MORNING, WE WOULD ASK FOR SUBSTANTIAL SANCTIONS.

# 4 THE COURT:

MISS CLARK.

# 5 MS. CLARK:

WHAT? I DON'T EVEN KNOW WHAT HE'S TALKING ABOUT.

# 6 THE COURT:

OFFER OF PROOF AS TO THIS STATEMENT THAT HE CALLED HER A BITCH.

# 7 MS. CLARK:

I'LL PLAY THE TAPE. COUNSEL'S HEARD THE TAPE. LET'S DO IT AGAIN.

# 8 THE COURT:

MR. SHAPIRO, ANY RESPONSE?

# 9 MR. SHAPIRO:

CAN I JUST HAVE A MOMENT, YOUR HONOR?

# 10 THE COURT:

SURE.

# 11 MR. SHAPIRO:

IS MISS CLARK REFERRING TO THE TAPE-RECORDED INTERVIEW THAT I HAD?

# 12 THE COURT:

NO. I THINK SHE'S REFERRING TO THE TAPE-RECORDED 911 CALL. AM I CORRECT, MISS CLARK?

# 13 MS. CLARK:

THAT'S RIGHT.

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

# 15 MR. SHAPIRO:

YOUR HONOR, THE PROBLEM WITH THIS LINE OF QUESTIONING IS THAT THE QUESTIONS BEFORE THE GRAND JURY WERE INTENTIONALLY VAGUE. HE WAS NEVER ASKED THESE SPECIFIC QUESTIONS. HE WAS ASKED VERY GENERAL QUESTIONS REGARDING A FIGHT OR AN ARGUMENT. AND I THINK IF THIS IS FOR IMPEACHING HER OWN WITNESS, SHE IS CERTAINLY ENTITLED TO DO THAT.

# 16 MS. CLARK:

THE QUESTION BEFORE THE GRAND JURY WAS OPEN ENDED BECAUSE I DIDN'T KNOW ANY OF THIS. I DIDN'T KNOW ABOUT IT AND HE DIDN'T KNOW WHAT THE PRIOR FIGHTS WERE I BELIEVE THERE WERE. SO I ASKED OPEN-ENDED QUESTIONS TO ELICIT INFORMATION. IT SHOWS THIS WITNESS IS RELUCTANT AND IT'S IMPORTANT TO HIS BIAS AND MOTIVE AND HIS DEMEANOR AND CREDIBILITY WITH REGARD TO THESE INCIDENTS.

# 17 THE COURT:

LET ME ASK YOU THIS, MISS CLARK. WE'VE ALREADY HEARD THE 911 TAPE. WE HEARD THE YELLING AND COMMOTION GOING ON THERE. HE'S ALREADY TESTIFIED, "YEAH, I CAME HOME, AND HE'S YELLING AND SCREAMING. I RECALL THE BRONCO OUT IN THE MIDDLE OF THE STREET," OBVIOUSLY A PRETTY CRAZY SITUATION. WE'VE PRETTY MUCH ESTABLISHED THAT, HAVEN'T WE?

# 18 MS. CLARK:

UH-HUH. YEAH. I MEAN I'M -- I DIDN'T ASK THE COURT TO PLAY THE TAPE. COUNSEL ASKED FOR AN OFFER OF PROOF AND I'M JUST -- WHAT I'M DEMONSTRATING IS THIS WITNESS' DEMEANOR, HIS CREDIBILITY AND HIS BIAS AND HIS FAILURE TO BE FORTHCOMING WITH INFORMATION THAT HE HAD OF A VERY BIG EVENT IN TERMS OF ARGUMENT.

# 19 THE COURT:

I THINK WE'RE SORT OF NITPICKING AT THIS POINT BECAUSE YOU'VE ALREADY ESTABLISHED THAT. AND I DON'T KNOW -- I'VE BEEN WATCHING THE JURY, AND THEY'RE LOOKING QUIZZICAL BECAUSE THEY'VE HEARD ALL THIS ALREADY. THEY KNOW ABOUT IT. I AGREE THE OFFER OF PROOF BASED UPON THE TAPE IS ADEQUATE.

# 20 MS. CLARK:

OKAY.

# 21 THE COURT:

BUT I DON'T KNOW THAT WE NEED TO DO IT AGAIN.

# 22 MS. CLARK:

ON THE THEORY OF ENOUGH ALREADY?

KEY QUOTE

# 23 THE COURT:

YEAH.

# 24 MS. CLARK:

OKAY.

# 25 THE COURT:

ENOUGH ALREADY.

Temperature

tense

Key Quotes (4)

Marcia Clark

IT SHOWS THIS WITNESS IS RELUCTANT AND IT'S IMPORTANT TO HIS BIAS AND MOTIVE AND HIS DEMEANOR AND CREDIBILITY WITH REGARD TO THESE INCIDENTS.

Clark's stated rationale for pressing the witness — not just the underlying facts, but the witness's evasiveness itself as impeachment material.

Lance A. Ito

I'VE BEEN WATCHING THE JURY, AND THEY'RE LOOKING QUIZZICAL BECAUSE THEY'VE HEARD ALL THIS ALREADY. THEY KNOW ABOUT IT.

Rare on-record acknowledgment of real-time jury monitoring by the judge, used to redirect counsel away from redundant questioning.

Marcia Clark

ON THE THEORY OF ENOUGH ALREADY?

Clark's sardonic acknowledgment of Ito's pragmatic ruling — one of the few light exchanges in the trial.

Lance A. Ito

ENOUGH ALREADY.

Ito's blunt, colloquial close to the sidebar — effectively ruling by exasperation rather than formal legal reasoning.

Evidence (1)

Informal

911 tape capturing OJ yelling and the Bronco in the street during a domestic incident

offered as proof of prior testimony; Ito rules it adequate but declines to replay it

Notable Exchanges (2)

Robert Shapiro•Marcia Clark

Shapiro demanded sanctions and an offer of proof; Clark pushed back saying she would simply replay the 911 tape, and Shapiro momentarily confused which tape she meant.

adversarial

Lance A. Ito•Marcia Clark

Ito noted the jury was visibly confused by repetition of already-established facts and suggested Clark move on; Clark accepted with dry humor.

pragmatic

Light Moments (1)

Marcia Clark / Lance A. Ito

Clark quipped 'ON THE THEORY OF ENOUGH ALREADY?' and Ito simply replied 'ENOUGH ALREADY' — a rare moment of shared exasperation cutting through the legal posturing.

Credibility Attacks (1)

⚔ unidentified witness (neighbor/acquaintance who heard the fight)

bias, reluctance, prior inconsistent omission

Clark argued the witness failed to volunteer information about a significant domestic argument — using his evasiveness before the grand jury as evidence of bias and motive to protect OJ.

Objections

None recorded

Proceeding 5400 • 25 utterances

Criminal Trial

Department 103