Sidebar: statement objections

📄 Sidebar: statement objections — Tuesday, March 28, 1995

Address:

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

TRIAL

▲ Day 46 of 167

◀ Direct examination of Rachel Ferrara (part 2) Direct examination of Rachel Ferrara (part 3) ▶

Date: Tuesday, March 28, 1995 • Utterances: 10

At sidebar, the court debated whether a witness could testify that Kato Kaelin said 'that's weird' when OJ called to ask him to turn on the alarm system — a comment Kato himself refused to make on the stand. Clark argued the statement was either a prior consistent statement (rebutting the defense's portrayal of OJ's conduct as normal) or a prior inconsistent statement (since Kato on cross softened his reaction). Cochran objected on hearsay grounds, and Ito sustained the objection.

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

# 2 THE COURT:

WE ARE AT THE SIDE BAR. MISS CLARK, YOUR NEXT QUESTION IS GOING TO BE WHAT DID KATO SAY TO YOU AFTER HE CLICKED BACK ON CALL WAITING? YOUR ANTICIPATED ANSWER, IT WAS O.J. TELLING ME TO TURN THE ALARM SYSTEM ON.

# 3 MS. CLARK:

RIGHT, TELLING HIM TO TURN THE ALARM SYSTEM ON WHICH WAS WEIRD BECAUSE HE HAD NEVER DONE THAT BEFORE.

# 4 MR. COCHRAN:

HEARSAY, HEARSAY, HEARSAY.

KEY QUOTE

# 5 MS. CLARK:

THIS IS PRIOR CONSISTENT STATEMENT. MR. SHAPIRO WENT INTO SOME EFFORT TO DESCRIBE THE CONDUCT OF O.J. SIMPSON AS BEING TOTALLY COMMON AND USUAL AND NOT OUT OF THE USUAL ON THAT PARTICULAR DAY AND TRIED TO MINIMIZE ANY CONDUCT THAT SEEMED UNUSUAL. KATO INDICATED THAT HE HAD NEVER SET THE ALARM BEFORE, BUT REFUSED TO CHARACTERIZE HIS TRUE FEELING ABOUT IT, WHICH HE DID ADMIT TO THIS WITNESS, WHICH WAS THAT THAT WAS WEIRD.

# 6 MR. COCHRAN:

MAY I BE HEARD? MY LEARNED COLLEAGUE IS POINTING OUT TO ME THAT THIS PRIOR CONSISTENT STATEMENT IS NOT MADE ADMISSIBLE BY THE HEARSAY RULE IF THE STATEMENT IS CONSISTENT WITH HIS TESTIMONY AT THE HEARING IS OFFERED IN COMPLIANCE. IT IS NOT ANY STATEMENT OF KATO KAELIN AND IT IS HEARSAY. IT IS NOT AN EXCEPTION TO THE HEARSAY RULE AND WHAT KATO KAELIN SAYS AT THAT POINT IS HEARSAY. WE HAVE NOT -- AND I THINK THE RECORD IS CLEAR, AS IT WAS MISS CLARK WHO TRIED TO MAKE HIM A HOSTILE WITNESS; NOT US. SHE IS ASKING LEADING QUESTIONS BEFORE AND THEY CONTINUE TO ASK LEADING QUESTIONS, SO NOT REALLY CHANGED. I HAVE TO TELL YOU WHEN WE GET OFF THE RECORD ABOUT THAT, BUT THIS IS HEARSAY.

# 7 MS. CLARK:

YOUR HONOR -- PRIOR INCONSISTENT STATEMENT, YOUR HONOR. MR. KAELIN TESTIFIED THAT HE -- HE REFUSED ACTUALLY TO CHARACTERIZE IT AS STRANGE OR UNUSUAL, ALTHOUGH HE ADMITTED IT NEVER OCCURRED BEFORE, AND UNDER THE GENTLE -- ACTUALLY WITH THE ABSOLUTELY SACCHARINE SWEET CROSS-EXAMINATION THAT HE GOT, CHARACTERIZED IT FURTHER AS BEING NO BIG DEAL. BUT THIS WITNESS WILL TESTIFY THAT HIS ACTUAL REACTION TO IT, THE SPONTANEOUS REACTION TO IT WAS "THAT'S WEIRD" AND IT IS A PRIOR INCONSISTENT STATEMENT.

# 8 MR. COCHRAN:

NO, NO, JUDGE THIS IS HEARSAY.

# 9 MS. CLARK:

AS SUCH IT IS AN EXCEPTION TO THE HEARSAY RULE.

# 10 THE COURT:

I'M GOING TO SUSTAIN THE OBJECTION.

Temperature

tense

Key Quotes (3)

Marcia Clark

MR. KAELIN TESTIFIED THAT HE -- HE REFUSED ACTUALLY TO CHARACTERIZE IT AS STRANGE OR UNUSUAL, ALTHOUGH HE ADMITTED IT NEVER OCCURRED BEFORE, AND UNDER THE GENTLE -- ACTUALLY WITH THE ABSOLUTELY SACCHARINE SWEET CROSS-EXAMINATION THAT HE GOT, CHARACTERIZED IT FURTHER AS BEING NO BIG DEAL.

Clark's frustration with Kato's cross-examination performance bleeds through — she's trying to recover what she sees as a softened witness.

Johnnie Cochran

HEARSAY, HEARSAY, HEARSAY.

Cochran's emphatic triple objection captures the defense's aggressive posture toward any out-of-court statement attributed to Kato.

Marcia Clark

THIS WITNESS WILL TESTIFY THAT HIS ACTUAL REACTION TO IT, THE SPONTANEOUS REACTION TO IT WAS 'THAT'S WEIRD' AND IT IS A PRIOR INCONSISTENT STATEMENT.

Clark pivots mid-argument from prior consistent to prior inconsistent statement theory, revealing she's searching for any evidentiary hook to get the word 'weird' before the jury.

Evidence (1)

Informal

OJ Simpson's phone call to Kato Kaelin asking him to turn on the alarm system the night of the murders

discussed — Clark sought to elicit a third-party witness account of Kato's spontaneous 'that's weird' reaction

Notable Exchanges (2)

Marcia Clark•Johnnie Cochran

Clark argues two competing hearsay exceptions in the same sidebar — first prior consistent statement (to rebut defense's normalization of OJ's conduct), then prior inconsistent statement (since Kato on cross downplayed the alarm call as 'no big deal'). Cochran rejects both theories and wins the ruling.

strategic

Johnnie Cochran•Lance A. Ito

Cochran notes a co-counsel ('my learned colleague') flagged the specific legal defect in the prior consistent statement argument, suggesting defense team coordination at sidebar.

procedural

Credibility Attacks (1)

⚔ Kato Kaelin

prior inconsistent statement

Clark argues Kato's spontaneous 'that's weird' reaction to the alarm call — told to another witness at the time — contradicts his on-stand minimization of the call as unremarkable, suggesting he softened his testimony under the defense's cross-examination.

Objections

3 objections (1 sustained, 0 overruled)

Proceeding 5457 • 10 utterances

Criminal Trial

Department 103