Sidebar: examination scope

📄 Sidebar: examination scope — Thursday, March 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\23\SIDEBAR-EXAMINATION-SCOPE.DOC

TRIAL

▲ Day 44 of 167

◀ Recess Administrative matters: jury return ▶

Date: Thursday, March 23, 1995 • Utterances: 48

A sidebar during Kato Kaelin's cross-examination where Marcia Clark objected that Shapiro had exceeded the scope of direct examination by eliciting character evidence about OJ's generosity and domestic incidents not covered on direct. Judge Ito largely denied the objection, noting Clark might actually want the door opened. Shapiro then raised a new theory — that Nicole hit her housekeeper Michelle and Kaelin took the housekeeper's side, explaining why Nicole wanted Kato gone — which Ito quickly rejected as irrelevant. Darden announced Bruce Jenner would be added to the prosecution's witness list as a result of Shapiro's cross.

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

# 2 THE COURT:

OKAY. WE ARE OVER AT THE SIDE BAR. MISS CLARK, YOUR OBJECTION IS SCOPE AT THIS POINT?

# 3 MS. CLARK:

YEAH, IT IS SCOPE AND THIS IS ALL -- EXCUSE ME. THIS IS ALL CHARACTER EVIDENCE, ALL -- NOW, YOU KNOW, IF THEY WANT TO CALL HIM AS THEIR WITNESS IN THEIR CASE IN CHIEF TO PRESENT CHARACTER EVIDENCE, THAT IS FINE. WHAT THEY ARE DOING RIGHT NOW, THOUGH, THEY ARE PUTTING ON GOOD CHARACTER EVIDENCE WITH THIS WITNESS AND GOOD -- GOOD BEFORE BAD WITH THE DEFENDANT, THAT IS FINE, BUT I WANT IT VERY CLEAR THAT THAT IS WHAT IS GOING ON, BECAUSE IT IS. BECAUSE IT IS. HE WAS GENEROUS TO YOU, HE WAS NICE TO YOU, HOW ABOUT HIS FAMILY, HOW ABOUT HIS KIDS, ALL CHARACTER EVIDENCE. IN THAT CASE THE DOOR IS OPENED AND WE SHOULD BE PERMITTED TO PUT ON ALL OF THE BAD CHARACTER EVIDENCE, AND WE HAVE GOT A TON. AND SO I WANT IT VERY CLEAR WHAT THE PARAMETERS ARE BECAUSE THE LAST -- THERE HAS BEEN AT LEAST THIRTY QUESTIONS THAT GO ONLY TO CHARACTER AND NOTHING ELSE.

# 4 THE COURT:

WELL, HERE IS PART OF THE PROBLEM, THOUGH, MISS CLARK: ALL RIGHT. MY UNDERSTANDING THAT IT IS PART OF YOUR CASE, THOUGH, TO -- EXCUSE ME. CAN WE HAVE IT QUIET IN THE COURTROOM, PLEASE. IT IS MY UNDERSTANDING THAT AS PART OF YOUR CASE, THOUGH, TO PORTRAY THE NATURE OF THE RELATIONSHIP BETWEEN THE DEFENDANT AND THE VICTIM, AND A LOT THE QUESTIONS THAT MR. SHAPIRO HAS ASKED WENT TO THE NATURE OF THE RELATIONSHIP, THE OTHER RELATIONSHIP WITH PAULA BARBIERI. I THINK IT IS PART OF WHAT OUR DISCUSSION IS HERE.

# 5 MS. CLARK:

I HAVE NO -- NO ARGUMENT, YES.

# 6 THE COURT:

ALL RIGHT.

# 7 MS. CLARK:

BUT THAT IS NOT WHAT I'M TALKING ABOUT. I'M TALKING ABOUT GENEROUS WITH YOU, TREAT YOU LIKE A SERVANT, GENEROUS WITH THE FAMILY, GENEROUS WITH -- GENEROUS WITH THE WITNESS, GOES TO HIS MOTIVE, BIAS, INTEREST, EVERYTHING ELSE. I AGREE WITH YOU, I WILL PROBABLY LET SLIP BY THE QUESTION ABOUT GENEROUS WITH NICOLE BROWN'S FAMILY, BUT STILL, TANGENTIALLY, DOESN'T THAT GO TO THE NATURE OF HIS RELATIONSHIP OF NICOLE AND HER FAMILY?

# 8 MS. CLARK:

NO.

# 9 THE COURT:

IT IS PRETTY CLOSE.

# 10

MS. CLARK: OH, I -- (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 11 THE COURT:

PRETTY CLOSE.

# 12 MS. CLARK:

WHAT WE ARE DOING HERE IS PUTTING THE VICTIM'S FAMILY ON TRIAL, YOUR HONOR. THAT IS WHAT WE ARE DOING. WE ARE TALKING ABOUT --

KEY QUOTE

# 13 THE COURT:

WELL, SAYING THAT THE DEFENDANT IS GENEROUS WITH THEM I DON'T HARDLY SEE.

# 14 MS. CLARK:

WELL, WE KNOW WHERE THIS IS GOING, WE KNOW WHERE THIS IS GOING, WHAT A GREAT GUY O.J. WAS AND WHAT HE DID FOR THE FAMILY AND WHAT NASTY PEOPLE THEY ARE TO COME OUT AGAINST HIM NOW.

# 15 THE COURT:

SOMEHOW I FEEL THAT THAT IS NOT WHERE IT IS GOING. IF IT GOES THERE, THEN I WILL CUT IT OFF, BUT THE BROWN FAMILY IS -- IS CAPABLE OF SPEAKING FOR THEMSELVES AS FAR AS THAT IS CONCERNED. ALL RIGHT.

# 16 MR. SHAPIRO:

YOUR HONOR, CAN WE BRING --

# 17 MS. CLARK:

I'M NOT GOING TO ARGUE WITH THE COURT ON THAT POINT.

# 18 THE COURT:

WELL, I ASSUME THAT THIS IS JUST TESTING MR. KAELIN'S -- THE DEPTH OF HIS KNOWLEDGE ABOUT THE SITUATION THAT WAS GOING ON.

# 19 MR. SHAPIRO:

YES, EXACTLY.

# 20 THE COURT:

I ALSO ASSUME WE ARE GOING TO MOVE ON.

# 21 MS. CLARK:

WHAT ABOUT ALL THE QUESTIONS ABOUT NICOLE DATING OTHER MEN AND NICOLE SHOWING ANGER AND THEN GOING -- THIS IS WAY BEYOND THE SCOPE OF ANYTHING I ASKED THIS WITNESS ON DIRECT. I DID NOT INQUIRE INTO ANY DOMESTIC VIOLENCE INCIDENTS WITH THIS WITNESS.

# 22 THE COURT:

UH-HUH.

# 23 MS. CLARK:

MR. SHAPIRO HAS BEEN ALLOWED TO EXCEED THE SCOPE COMPLETELY IN GOING INTO ALL OF THIS STUFF, THE CHRISTMAS DINNER THING, THE OCTOBER 25TH 911 TAPE.

# 24 THE COURT:

BUT DON'T YOU -- DON'T YOU WANT HIM TO DO THAT?

# 25 MR. DARDEN:

WELL, NOW THAT HE --

# 26 MS. CLARK:

I MEAN, HE IS GOING TO BE SORRY HE DID IT, THERE IS NO QUESTION ABOUT THAT. THIS IS GOING TO GIVE ME A LOT OF OPPORTUNITIES, BUT IT IS BEYOND THE SCOPE AND I'M ASKING THE COURT --

KEY QUOTE

# 27 THE COURT:

ARE YOU MAKING A SERIOUS OBJECTION OR JUST AN OBJECTION FOR THE RECORD?

KEY QUOTE

# 28 MS. CLARK:

WAIT.

# 29 THE COURT:

BECAUSE I -- I NOTED THAT WHEN THIS STARTED TO COME IN, ESPECIALLY THE JENNER RESIDENCE CHRISTMAS PARTY BUSINESS, I WAS SURPRISED TO SEE IT. I MEAN, ARE YOU MAKING A SERIOUS OBJECTION ABOUT THAT?

# 30 MS. CLARK:

I'M MAKING AN OBJECTION FROM THIS POINT FORWARD, A SERIOUS OBJECTION, THAT THE SCOPE SHOULD NOT BE EXCEEDED, AND IT HAS BEEN ENORMOUSLY, AND IF WE ARE GOING TO START GETTING INTO CHARACTER EVIDENCE ANY MORE, AND I THINK THAT WE ALREADY HAVE WITH THE REMARKS ABOUT THE GENEROSITY TO THE -- NICOLE'S FAMILY, I DON'T SEE HOW THAT HAS ANY BEARING ON THE DOMESTIC VIOLENCE ISSUES THAT HAVE BEEN PRESENTED TO THIS JURY AND THAT ARE RELEVANT TO THIS CASE.

# 31 THE COURT:

WELL, MR. SHAPIRO HAS INDICATED HE IS ABOUT TO MOVE ON TO SOMETHING ELSE.

# 32 MS. CLARK:

ALL RIGHT.

# 33 THE COURT:

ALL RIGHT. AT THIS POINT LET'S TAKE OUR RECESS, BUT I WOULD LIKE TO SEE THE NOTES.

# 34 MR. SHAPIRO:

YOUR HONOR, THERE IS ONE OTHER ISSUE I WOULD LIKE TO BRING UP.

# 35 THE COURT:

YEAH.

# 36 MR. SHAPIRO:

THAT IS I DIDN'T WANT TO APPROACH THE BENCH ON AN ISSUE OF NICOLE BROWN SIMPSON AND A RELATIONSHIP SHE HAD WITH A HOUSEKEEPER NAMED MICHELLE.

# 37 THE COURT:

UH-HUH.

# 38 MR. SHAPIRO:

AND THIS GOES TO THE VERY ISSUE AS TO WHAT THE MOTIVATING FACTORS WERE AS TO WHY NICOLE DID NOT WANT KATO TO STAY AT O.J.'S RESIDENCE AND THAT IS BECAUSE NICOLE HIT THE HOUSEKEEPER AND KATO TOOK THE HOUSEKEEPER'S SIDE AND THEREFORE NICOLE TURNED ON KATO.

AND MISS CLARK HAS GONE TO GREAT LENGTHS TO TRY TO PAINT A PICTURE THAT O.J. WAS JEALOUS AND OBSESSIVE AND THEREFORE DID NOT WANT TO HAVE KATO LIVING UNDER THE SAME ROOF, BUT THERE IS A LOT MORE THAT GOES INTO THE RELATIONSHIP AS TO WHY HE WAS LIVING AT ROCKINGHAM AND THE RELATIONSHIP AND WHY IT CHANGED, AND SHE BROUGHT UP THE CHANGE IN THE RELATIONSHIP AND THAT NICOLE ALWAYS WANTED HIM TO LEAVE AND THAT WAS THE REASON.

# 39 MS. CLARK:

YOUR HONOR --

# 40 THE COURT:

ALL RIGHT. I THINK THAT IS IRRELEVANT TO THIS CASE.

KEY QUOTE

# 41 MR. DARDEN:

CAN I JUST INDICATE THIS, THAT WE WILL PROBABLY BE CALLING BRUCE JENNER, SO CONSIDER HIM ON THE WITNESS LIST.

# 42 THE COURT:

OH, TERRIFIC.

# 43 MS. CLARK:

AS A RESULT OF THIS CROSS. THANK YOU, COUNSEL.

# 44 THE COURT:

ALL RIGHT. WHY DON'T YOU GIVE ME THE NOTES WHEN YOU GET A CHANCE.

# 45 MR. SHAPIRO:

I WILL GIVE THEM TO YOU RIGHT NOW, YOUR HONOR.

# 46 MS. CLARK:

WE WILL WAIT THE COURT'S DETERMINATION.

# 47 THE COURT:

HOW MUCH TIME DO WE HAVE?

# 48

MR. DARDEN: WE'VE GOT ABOUT EIGHT MORE MINUTES. (RECESS.)

Temperature

tense

Key Quotes (5)

Marcia Clark

HE IS GOING TO BE SORRY HE DID IT, THERE IS NO QUESTION ABOUT THAT. THIS IS GOING TO GIVE ME A LOT OF OPPORTUNITIES.

Clark signals she is content to let the door open wider for bad character evidence even while formally objecting on scope.

Lance A. Ito

ARE YOU MAKING A SERIOUS OBJECTION OR JUST AN OBJECTION FOR THE RECORD?

Ito cuts through the gamesmanship, recognizing Clark's objection is partly strategic cover rather than a genuine desire to stop the testimony.

Christopher Darden

WE WILL PROBABLY BE CALLING BRUCE JENNER, SO CONSIDER HIM ON THE WITNESS LIST.

A significant tactical disclosure — prosecution adds a new witness in direct response to defense opening the door on the Jenner Christmas party incident.

Marcia Clark

WHAT WE ARE DOING HERE IS PUTTING THE VICTIM'S FAMILY ON TRIAL, YOUR HONOR.

Clark frames her objection as a victim-advocacy argument, previewing how the defense's character strategy could be politically reframed.

Lance A. Ito

ALL RIGHT. I THINK THAT IS IRRELEVANT TO THIS CASE.

Swift rejection of Shapiro's housekeeper-Michelle theory, shutting down a potentially salacious alternate narrative about Nicole's behavior.

Evidence (3)

Informal

October 25th 911 tape referenced by Clark as an example of domestic violence evidence Shapiro elicited on cross

discussed

Informal

Christmas dinner at Jenner residence — referenced as an incident Shapiro drew out beyond the scope of direct

discussed

Informal

Notes (unspecified) that Ito requests from counsel at recess

requested by judge

Notable Exchanges (3)

Lance A. Ito•Marcia Clark

Ito challenges Clark on whether her scope objection is genuine or just for the record, given that the opened door benefits the prosecution. Clark pivots to a going-forward objection rather than trying to strike past testimony.

strategic

Robert Shapiro•Lance A. Ito

Shapiro floats the theory that Nicole physically struck housekeeper Michelle and Kato sided with the housekeeper, offering an alternate explanation for why Nicole wanted Kato out. Ito shuts it down immediately as irrelevant.

probing

Christopher Darden•Marcia Clark

Darden announces Bruce Jenner will be added to the witness list; Clark sarcastically thanks defense counsel for opening the door.

pointed

Light Moments (2)

Lance A. Ito

Ito's dry 'OH, TERRIFIC.' upon hearing Bruce Jenner would be added to the witness list.

Marcia Clark

Clark's off-record discussion with co-counsel mid-argument, noted in the transcript as '(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)'

Credibility Attacks (2)

⚔ O.J. Simpson

character evidence (defense — good character)

Shapiro elicited testimony about OJ's generosity toward Nicole's family and others, which Clark argued was impermissible character evidence opening the door to prosecution's bad character rebuttal.

⚔ Nicole Brown Simpson

prior bad act (rejected)

Shapiro attempted to introduce evidence that Nicole struck housekeeper Michelle, which Ito rejected as irrelevant.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 5413 • 48 utterances

Criminal Trial

Department 103