Sidebar: hearsay objection

📄 Sidebar: hearsay objection — Tuesday, March 28, 1995

Address:

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

TRIAL

▲ Day 46 of 167

◀ Direct examination of Rachel Ferrara (part 1) Direct examination of Rachel Ferrara (part 2) ▶

Date: Tuesday, March 28, 1995 • Utterances: 33

During the civil trial, Clark sought to introduce testimony from a witness (Ferrara) about Kato Kaelin's stated intention to go investigate the noise he heard, framing it as a prior consistent statement supporting his credibility. Ito rejected the argument because no prior inconsistent statement existed to rehabilitate against, and because the substance (that Kato went outside after the bangs) was already undisputed and in evidence.

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

# 2 MR. COCHRAN:

I WAS GOING TO SAY 352 SO THAT WE CAN CUT OUT ALL THAT STUFF.

# 3 MS. CLARK:

THAT IS THE ONLY ONE YOU KNOW.

# 4 THE COURT:

WE ARE AT THE SIDE BAR. HEARSAY IS THE OBJECTION.

# 5 MR. COCHRAN:

I WOULD LIKE AN OFFER OF PROOF. THIS MAY FALL INTO THE CATEGORY OF WHAT YOU SAID EARLIER, ABOUT SO WHAT, BUT I NEED TO KNOW WHERE WE ARE GOING.

# 6 MS. CLARK:

NOW, YOU WANT HIM TO SAY INNOCUOUS TO ME, HUM? EXCUSE ME.

# 7 THE COURT:

ALL RIGHT.

# 8 MS. CLARK:

THE OFFER OF PROOF IS THAT SHE WILL SAY, AS A PRIOR CONSISTENT STATEMENT OF KATO, THAT HE INTENDED TO GO OUT AND CHECK ON THE SOURCE OF THE NOISE.

# 9 MR. COCHRAN:

STILL HEARSAY. I MEAN, THE QUESTION IS, YOU KNOW, WE DON'T -- SHE DOESN'T KNOW WHAT HE DID. SHE IS ON THE PHONE.

# 10 MS. CLARK:

DOESN'T MATTER. IT DOESN'T MATTER. IT IS A PRIOR CONSISTENT STATEMENT OF KATO'S.

# 11 THE COURT:

BUT IS THERE AN INCONSISTENT STATEMENT ANYWHERE?

# 12 MR. COCHRAN:

WHERE IS THE INCONSISTENT STATEMENT? THAT IS WHAT HE SAID.

# 13 THE COURT:

IS THERE ANY DISPUTE THAT AFTER FINISHING HE WENT OUTSIDE?

# 14 MS. CLARK:

BUT THIS GOES TO THE GENERAL CREDIBILITY OF THE REACTION THAT HE HAD TO --

# 15 THE COURT:

MISS CLARK, LET ME JUST SEE IF WE CAN SAVE SOME TIME. IN ORDER FOR A PRIOR CONSISTENT STATEMENT TO COME IN THERE HAS TO BE A PRIOR INCONSISTENT STATEMENT THAT IT IS IN CONTROVERSY WITH.

# 16 MS. CLARK:

UH-HUH.

# 17 THE COURT:

WHICH IS WHY YOU GET TO BRING IT IN.

# 18 MS. CLARK:

RIGHT.

# 19 THE COURT:

BUT HE HAS NOT SAID PREVIOUSLY --

# 20 MS. CLARK:

BUT THIS DOESN'T HAVE TO BE SPECIFICALLY ON THAT PARTICULAR POINT THAT YOU BRING IT IN. HIS CREDIBILITY IN GENERAL IS UNDER ATTACK, BY ME.

# 21 MR. COCHRAN:

LET'S GET THAT RIGHT.

# 22 MS. CLARK:

BY ME, AS WELL AS BY COUNSEL, IN VARIOUS DIFFERENT ASPECTS. SINCE HIS CREDIBILITY IS UNDER ATTACK AND THIS IS ONE OF THE CRITICAL FACTS IN THE CASE, HIS CREDIBILITY IS IN ISSUE WITH RESPECT TO EVERYTHING HE HAS TESTIFIED TO. COUNSEL, IF THEY ARE WILLING TO STIPULATE THAT HE SPOKE -- THAT HE WAS VERY UPSET BY THE SOUND, THE BANG ON THE WALL, THAT AS A RESULT HE DETERMINED THAT HE HAD TO GO OUT TO THE SOUTH PATHWAY TO CHECK IT OUT AND HE SO ADVISED MISS FERRARA, FINE.

# 23 THE COURT:

HERE IS THE INTERESTING THING, THOUGH. SHE HAS ALREADY TESTIFIED THAT NOT ONLY SHE WAS CONCERNED, NOT ONLY WAS HE, KATO KAELIN CONCERNED, BUT SHE TESTIFIED I WAS CONCERNED THAT THERE WAS SOMEBODY OUTSIDE. SHE SAID, "WE WERE WORRIED THERE WAS SOMEBODY OUTSIDE." SO YOU HAVE ALREADY GOTTEN ALL THIS STUFF IN. I HAVE TO SUSTAIN THE OBJECTION BECAUSE THERE IS NO INCONSISTENT STATEMENT.

# 24 MS. CLARK:

WHAT ABOUT -- I'M NOT DONE. I'VE GOT ANOTHER ONE. WHAT ABOUT 1241?

# 25 MR. COCHRAN:

YOU DON'T HAVE TO APOLOGIZE.

# 26 THE COURT:

HOLD ON.

# 27 MS. CLARK:

WHAT ABOUT 1241, YOUR HONOR, THE STATEMENT OF SUBSEQUENT CONDUCT UNDER PEOPLE VERSUS ACALDE, EVIDENCE SECTION CODE 1241, EVIDENCE OF FUTURE ACT PREMISED UPON A CURRENT EVENT. AND I BELIEVE IT IS ADMISSIBLE UNDER THAT THEORY AS WELL, SUBSEQUENT CONDUCT.

# 28 THE COURT:

I HAVE TO TELL YOU I THINK WE ARE WASTING A LOT OF TIME ON THIS BECAUSE IT REALLY IS INNOCUOUS BECAUSE I DON'T THINK THERE IS A DISPUTE THAT AFTER FINISHING TALKING TO HER HE GOES OUTSIDE.

KEY QUOTE

# 29 MS. CLARK:

IF IT IS NOT A BIG ISSUE, THEN WHY DON'T WE OVERRULE THE OBJECTION AND LET HER CONTINUE TO TESTIFY?

KEY QUOTE

# 30 MR. COCHRAN:

WE WASTE TIME.

# 31 MS. CLARK:

WE ARE WASTING MUCH MORE TIME ARGUING.

# 32 MR. COCHRAN:

THIS IS YOUR WITNESS.

# 33 THE COURT:

AT THIS POINT I'M GOING TO SUSTAIN THE OBJECTION.

Temperature

procedural

Key Quotes (3)

Lance A. Ito

IN ORDER FOR A PRIOR CONSISTENT STATEMENT TO COME IN THERE HAS TO BE A PRIOR INCONSISTENT STATEMENT THAT IT IS IN CONTROVERSY WITH.

Ito correctly articulates the evidentiary predicate Clark failed to satisfy, cutting to the heart of why the objection is sustained.

Marcia Clark

IF IT IS NOT A BIG ISSUE, THEN WHY DON'T WE OVERRULE THE OBJECTION AND LET HER CONTINUE TO TESTIFY?

Clark's pragmatic counter-argument — if the testimony is harmless, admit it — which Ito declines.

Lance A. Ito

I HAVE TO TELL YOU I THINK WE ARE WASTING A LOT OF TIME ON THIS BECAUSE IT REALLY IS INNOCUOUS.

Ito signals the testimony is factually uncontested, undercutting Clark's stated need for it.

Evidence (2)

Informal

Evidence Code section 1241 — statement of subsequent conduct (People v. Acalde)

cited by Clark as alternative theory for admissibility

Informal

Ferrara's existing testimony that she and Kato were worried someone was outside

cited by Ito as already placing the substance in evidence

Notable Exchanges (2)

Marcia Clark•Lance A. Ito

Clark pivots mid-argument to Evidence Code 1241 as an alternative theory after Ito dismantles the prior consistent statement argument, but Ito sustains regardless.

strategic

Marcia Clark•Johnnie Cochran

Brief sparring over who is wasting time, with Cochran pointedly reminding Clark it is her witness on the stand.

testy

Light Moments (1)

Johnnie Cochran

Cochran tells Clark 'YOU DON'T HAVE TO APOLOGIZE' when she says 'I'M NOT DONE' — dry deflation of her momentum.

Credibility Attacks (1)

⚔ Kato Kaelin

rehabilitation attempt

Clark sought to bolster Kato's credibility through Ferrara's corroborating testimony about his stated intent to investigate the bangs, arguing his general credibility was under attack.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5455 • 33 utterances

Criminal Trial

Department 103