Sidebar (1)

📄 Sidebar (1) — Tuesday, March 28, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\28\SIDEBAR-1-.DOC

TRIAL

▲ Day 46 of 167

◀ Direct examination of Allan Park (part 3) Direct examination of Allan Park (part 4) ▶

Date: Tuesday, March 28, 1995 • Utterances: 39

A sidebar over a hearsay objection to testimony about Kato Kaelin asking Allan Park whether there had been an earthquake and then requesting a flashlight. Clark argued the question itself cannot be hearsay since no truth of matter is asserted, and that the statement was offered to explain Kaelin's subsequent conduct. Cochran withdrew the objection after Clark explained the innocuous nature of the upcoming testimony.

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

# 2 THE COURT:

WE ARE OVER AT SIDE BAR.

# 3 (DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

# 4 MS. CLARK:

FIRST OF ALL, I DON'T KNOW HOW A QUESTION CAN EVER BE HEARSAY BECAUSE THERE IS NO TRUTH OF THE MATTER ASSERTED.

KEY QUOTE

# 5 THE COURT:

THE QUESTION CALLS FOR HEARSAY.

# 6 MS. CLARK:

HOW DOES IT CALL FOR HEARSAY?

# 7 THE COURT:

DID HE SAY SOMETHING TO YOU ABOUT AN EARTHQUAKE? THE QUESTION IS ASKING FOR A HEARSAY ANSWER.

# 8 MS. CLARK:

THEN I ASKED HIM DID HE ASK YOU SOMETHING ABOUT THAT OR HE ASKED ME A QUESTION AND WHAT WAS THE QUESTION. I'M POINTING OUT WHERE THE TESTIMONY IS GOING BECAUSE MAYBE WE DON'T HAVE TO WORRY ABOUT THIS.

# 9 THE COURT:

OKAY.

# 10 MS. CLARK:

THE QUESTION IS THAT I'M TRYING TO ELICIT FROM HIM, HE ASKED HIM DID YOU FEEL AN EARTHQUAKE.

# 11 MR. COCHRAN:

WELL, THERE A SIGN I WAS JUST GOING TO GET OVER HERE FOR YOU, BUT I COULDN'T FIND IT.

# 12 MS. CLARK:

I HAVE IT.

# 13 MR. COCHRAN:

SHE HAS TO BRING SOMETHING OVER FOR YOU TO SEE. THIS WILL JUST TAKE A SECOND.

# 14 (BRIEF PAUSE.)

# 15 MR. COCHRAN:

YOU SEE THIS? OKAY. SO WHAT IS THE OFFER OF PROOF?

# 16 MS. CLARK:

COME ON, YOU GUYS.

# 17 THE COURT:

ALL RIGHT.

# 18 MS. CLARK:

THERE IS ANOTHER QUESTION. HE IS GOING TO ASK PARK FOR A FLASHLIGHT.

# 19 MR. COCHRAN:

TELL ME AN OFFER OF PROOF.

# 20 MS. CLARK:

I DON'T KNOW HOW A QUESTION CAN BE HEARSAY. I DON'T KNOW THAT THE TRUTH OF THE MATTER CAN BE ASSERTED IN A QUESTION BUT --

# 21 THE COURT:

THE OBJECTION IS MADE.

# 22 MS. CLARK:

UH-HUH.

# 23 MS. CLARK:

AND THE RESPONSE IS IT IS NOT ASSERTED FOR THE TRUTH THE MATTER; IT IS JUST A QUESTION.

# 24 MR. COCHRAN:

IT IS IRRELEVANT. THAT IS ANOTHER RESPONSE.

# 25 THE COURT:

YOUR ARGUMENT IS TO EXPLAIN HIS SUBSEQUENT CONDUCT IN ASKING FOR THE FLASHLIGHT AND THEN WANDERING AROUND THE SIDE YARD?

# 26 MS. CLARK:

EXACTLY.

# 27 MR. COCHRAN:

SUBSEQUENT CONDUCT.

# 28 THE COURT:

OFFERED FOR A NON-HEARSAY PURPOSE IS WHAT YOU ARE SAYING.

KEY QUOTE

# 29 MS. CLARK:

YES, AND FOR THIS WITNESS'S SUBSEQUENT CONDUCT AS WELL, BECAUSE HE WAS ABOUT TO ASSIST IN THE SEARCH.

# 30 MR. COCHRAN:

THAT CAN'T HELP WITH US KATO KAELIN BECAUSE THE PROBLEM IS IF IT IS BEING OFFERED TO SHOW THAT KATO KAELIN IS A PRIOR STATEMENT OR PRIOR INCONSISTENT ACTIVITY. IT IS BEING OFFERED FOR THE TRUTH OF THE MATTER ASSERTED, YOUR HONOR, AND THAT IS THE PROBLEM. WE HAD AN AGREEMENT IF SHE TELLS ME WHAT IS COMING UP, IF IT IS INNOCUOUS, I DON'T CARE. I DON'T WANT YOU TO MAKE THAT SO WHAT OBJECTION AGAIN.

# 31 MS. CLARK:

DO YOU CARE? THAT IS IT.

# 32 MR. COCHRAN:

SO WHAT IS HE GOING TO SAY?

# 33 MS. CLARK:

THAT KATO ASKED IF THERE WAS AN EARTHQUAKE, HE SAID, YOU KNOW HE DIDN'T FEEL ONE OR WHATEVER AND THEY WENT ON ABOUT THEIR BUSINESS AND AT SOME POINT HE ASKED HIM FOR A -- HE ASKED HIM FOR A FLASHLIGHT, IF HE HAD A FLASHLIGHT. I MEAN, IS THIS A BIG DEAL?

# 34 MR. COCHRAN:

IT IS NOT A BIG DEAL. I WILL WITHDRAW.

KEY QUOTE

# 35 THE COURT:

OKAY.

# 36 MR. COCHRAN:

AND I WILL HELP HER REHABILITATE HER WITNESS.

# 37 THE COURT:

OKAY.

# 38 MR. COCHRAN:

IS THAT WHAT WE ARE DOING HERE?

# 39 THE COURT:

THE OBJECTION IS WITHDRAWN. THANK YOU. PROCEED.

Temperature

light

Key Quotes (3)

Marcia Clark

I DON'T KNOW HOW A QUESTION CAN EVER BE HEARSAY BECAUSE THERE IS NO TRUTH OF THE MATTER ASSERTED.

Clark's core legal argument — questions by definition cannot assert a truth, so the hearsay rule doesn't apply.

Lance A. Ito

OFFERED FOR A NON-HEARSAY PURPOSE IS WHAT YOU ARE SAYING.

The judge frames Clark's alternative theory: the statement is admissible to explain Park's subsequent conduct, not for its truth.

Johnnie Cochran

IT IS NOT A BIG DEAL. I WILL WITHDRAW. AND I WILL HELP HER REHABILITATE HER WITNESS.

Cochran withdraws after hearing the offer of proof, but can't resist a parting dig implying Kato needs rehabilitating.

Notable Exchanges (1)

Marcia Clark•Johnnie Cochran•Lance A. Ito

Clark and Cochran spar over the hearsay objection; Clark offers to preview the testimony and Cochran, satisfied it is innocuous, withdraws. The exchange is collegial and resolved quickly once Clark laid out exactly what Park would say.

procedural with light banter

Light Moments (2)

Johnnie Cochran

Cochran jokes that he was looking for a sign to bring to the judge but couldn't find it, then Clark says she has it — a brief moment of shared courthouse humor.

Johnnie Cochran

After withdrawing his objection, Cochran quips 'AND I WILL HELP HER REHABILITATE HER WITNESS' — a needling aside implying Kato Kaelin is damaged goods even for the prosecution.

Credibility Attacks (1)

⚔ Kato Kaelin

innuendo

Cochran's parting remark about 'helping her rehabilitate her witness' signals the defense's ongoing posture that Kaelin is an unreliable or unhelpful witness for the prosecution.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5447 • 39 utterances

Criminal Trial

Department 103