Sidebar (2)

📄 Sidebar (2) — Friday, March 3, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\3\SIDEBAR-2-.DOC

TRIAL

▲ Day 30 of 167

◀ Recross-examination of Rosa Lopez (part 1) Recross-examination of Rosa Lopez (part 2) ▶

Date: Friday, March 3, 1995 • Utterances: 33

A sidebar dispute over whether prosecutor Darden could use a fax letter from an unidentified PhD linguist to challenge a Spanish-speaking witness's repeated use of 'I don't remember' as testimony. Cochran argued the letter was hearsay and beyond the scope of cross-examination; Judge Ito agreed the letter was improper but allowed Darden to ask the witness whether anyone had discussed the subject with her during the lunch break.

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

# 2 THE COURT:

WE ARE OVER AT SIDEBAR. MR. COCHRAN.

# 3 MR. COCHRAN:

THIS IS BEYOND THE SCOPE. I NEVER WENT INTO THIS AT ALL. BEYOND THE SCOPE OF CROSS. AND THE COURT TOLD ME THIS MORNING WHEN I READ THIS -- TRIED TO MAKE THIS POINT TO THE COURT TO TRY AND ESTABLISH IT, THE COURT SAID, "I'M NOT IMPRESSED WITH THIS." I CAN'T QUOTE YOU EXACTLY, BUT YOU DON'T TAKE GREAT STOCK IN THIS. DARDEN SAID AND I HOPE WAS IN THE RECORD, "I OBJECT TO ANYBODY WHO STARTS OFF SAYING I'M A SCHOLAR." SO THIS MATTER WAS TOTAL POOH-POOH, BEYOND THE SCOPE.

# 4 THE COURT:

IT'S NOT POOH-POOH. WE JUST DON'T KNOW THAT HE'S COMPETENT. WE DON'T KNOW WHO THIS PERSON IS.

# 5 MR. COCHRAN:

IF HE WAS INCOMPETENT THIS MORNING, HE'S NOT COMPETENT THIS AFTERNOON IS MY POINT. I DON'T KNOW WHAT'S CHANGED.

# 6 THE COURT:

BUT THE PROBLEM -- HOLD ON. JUST A SECOND. THE PROBLEM WE HAVE, MR. COCHRAN, IS, YOU STARTED YOUR REDIRECT BY GOING INTO, "YOU WERE TIRED DURING MUCH OF YOUR TESTIMONY," AND THEN, "WHEN YOU SAY, 'I DON'T REMEMBER SAYING THAT,' DOESN'T MEAN SAYING I DON'T RECALL MEANS NO?" SO YOU WENT INTO SEMANTICS IS THE PROBLEM.

# 7 MR. COCHRAN:

JUDGE, I UNDERSTAND THAT. THAT IS A HORSE OF A DIFFERENT COLOR. THIS MAN, NONE OF US KNOW. THIS LETTER IS NOT THE WAY TO ADDRESS THAT. THE POINT IS -- TO CROSS-EXAMINE ON THAT IS ONE THING. THE POINT IS, WE DON'T KNOW ANYTHING ABOUT THIS WITNESS. THIS IS A FAX LETTER. THIS IS THE RANKEST KIND OF IRRELEVANT, IMMATERIAL HEARSAY. THAT'S WHAT I'M SAYING.

# 8 THE COURT:

I AGREE.

# 9 MR. COCHRAN:

I WOULD LIKE AN OFFER OF PROOF.

# 10 MR. DARDEN:

THE OFFER OF PROOF IS THIS. THIS LETTER APPEARED IN COURT THIS MORNING. YOU GAVE MYSELF A COPY. YOU GAVE MR. COCHRAN A COPY. THE NEXT THING WE KNOW, THE CONTENT OF THE LETTER IS REGURGITATED BY THE WITNESS ON THE STAND.

# 11 MR. COCHRAN:

THAT'S NOT TRUE AT ALL. THIS --

# 12 MR. DARDEN:

I DON'T REMEMBER MEANS NO.

# 13 MR. COCHRAN:

JUST A MOMENT.

# 14 THE COURT:

WELL, OUT OF CURIOSITY, WHY WOULD YOU CONTEST THAT ANSWER?

# 15 MR. DARDEN:

WELL, BECAUSE SHE'S ONLY SAID "I DON'T REMEMBER" 128 TIMES, AND EACH TIME SHE -- I DON'T KNOW IF IT'S GOOD, I DON'T KNOW IF "NO" IS BAD.

# 16 THE COURT:

BUT YOU ASKED ME HOW I WAS GOING TO TAKE "I DON'T REMEMBER" UNDER 1235. THEN YOU GOT THE ANSWER THAT MAKES THAT PROBLEM GO AWAY.

# 17 MR. SHAPIRO:

JUDGE, I THINK IT'S UNFAIR THAT YOU HELP THE PROSECUTION LEARN THE RULES OF EVIDENCE. HE'S TRYING TO, BUT YOU'RE NOT PICKING UP ON IT.

KEY QUOTE

# 18 MS. CLARK:

MR. SHAPIRO IS NOT GIVING US ANY CLUES THAT WE WEREN'T TELLING HIM ABOUT YESTERDAY. THAT WAS CLEAR.

# 19 THE COURT:

HOLD ON. OKAY. COME ON, GUYS. IT'S LATE. IT'S BEEN A LONG WEEK.

# 20 MR. DARDEN:

LET ME ASK HER A COUPLE QUESTIONS. I DO WANT TO ADD, IT MAY BE SOMETHING TO ARGUE WHEN THE TIME COMES.

# 21 THE COURT:

HERE'S THE PROBLEM. YOU MAY WANT IT MARKED FOR IDENTIFICATION PURPOSES. BUT IF YOU RECALL -- YOU KNOW, IF YOU'VE GOT SOMEBODY FROM UCLA SCHOOL OF INTERPRETATION COMING HERE TO TELL YOU THAT, I HAVE NO IDEA WHO THIS GUY IS.

# 22 MR. DARDEN:

I DON'T HAVE ANY IDEA. BUT IT LOOKS LIKE -- MR. COCHRAN SPOKE TO THE WITNESS ON THE SAME SUBJECT MATTER AND WE APPROACHED THIS MORNING AND THE COURT HANDED THIS TO ME.

# 23 THE COURT:

BUT HERE'S THE THING THOUGH. MR. DARDEN, THIS IS THE WRONG PERSON TO READ A LETTER FROM A PHD. THIS GUY MAY BE WELL QUALIFIED. BUT TO ASK THIS WOMAN WHO DOESN'T SPEAK ENGLISH WELL, WHO DOESN'T READ OR WRITE SPANISH OR ENGLISH, TO ASK HER ABOUT, YOU KNOW, SEMANTICS --

# 24 MR. DARDEN:

OKAY.

# 25 THE COURT:

-- OF INTERPRETING --

# 26 MR. DARDEN:

WELL, THE WITNESS HAS ADOPTED THIS INTERPRETATION AFTER THREE DAYS' OF TESTIMONY.

# 27 THE COURT:

YOU CAN BRING IN AN EXPERT WITNESS ON LINGUISTICS.

# 28 MR. DARDEN:

BUT THE ISSUE IS WHETHER HE DISCUSSED THE GENERAL SUBJECT MATTER --

# 29 THE COURT:

YOU CAN ASK, "DID ANYBODY READ THIS TO YOU," AND/OR, ASK YOU ABOUT THIS?" YOU CAN ASK THAT.

# 30 MS. CLARK:

DID ANYBODY DISCUSS THE SUBJECT OF THE PARAGRAPH OVER THE LUNCH HOUR.

# 31 THE COURT:

"WHAT WAS JUST READ TO YOU, DID ANYBODY DISCUSS THAT WITH YOU?" YOU CAN ASK THAT.

# 32 MR. DARDEN:

THAT'S WHAT I WAS GOING TO ASK.

# 33 THE COURT:

WELL, WHY DIDN'T YOU SAY SO?

Temperature

tense

Key Quotes (4)

Johnnie Cochran

THIS IS A FAX LETTER. THIS IS THE RANKEST KIND OF IRRELEVANT, IMMATERIAL HEARSAY. THAT'S WHAT I'M SAYING.

Cochran's sharpest formulation of his objection — characterizing the prosecution's linguistics letter as multi-layered inadmissible evidence.

Robert Shapiro

JUDGE, I THINK IT'S UNFAIR THAT YOU HELP THE PROSECUTION LEARN THE RULES OF EVIDENCE. HE'S TRYING TO, BUT YOU'RE NOT PICKING UP ON IT.

A rare cutting interjection from Shapiro accusing Ito of coaching Darden — drawing a sharp retort from Clark.

Christopher Darden

SHE'S ONLY SAID 'I DON'T REMEMBER' 128 TIMES, AND EACH TIME SHE -- I DON'T KNOW IF IT'S GOOD, I DON'T KNOW IF 'NO' IS BAD.

Reveals the prosecution's frustration with the witness and the evidentiary ambiguity around her repeated disclaimers.

Lance A. Ito

IT'S LATE. IT'S BEEN A LONG WEEK.

Ito trying to de-escalate a sidebar that had grown combative — a candid moment of judicial weariness.

Evidence (1)

Informal

Fax letter from an unidentified PhD (possibly from UCLA School of Interpretation) regarding the semantics of 'I don't remember' in interpretation contexts

challenged and excluded from direct use; Ito suggests marking for identification only

Notable Exchanges (3)

Johnnie Cochran•Lance A. Ito

Cochran argues the witness was found incompetent on this subject in the morning session and nothing has changed by afternoon; Ito pushes back that Cochran opened the door by going into semantics on redirect.

strategic

Robert Shapiro•Marcia Clark

Shapiro accuses Ito of improperly helping the prosecution learn evidence rules; Clark fires back that she had already told them the same thing the day before.

heated

Christopher Darden•Lance A. Ito

Ito guides Darden toward the permissible question — whether anyone discussed the letter's subject with the witness during lunch — ending with 'Well, why didn't you say so?'

procedural

Light Moments (1)

Lance A. Ito

Ito's exasperated 'Well, why didn't you say so?' after Darden finally articulates the narrow question the judge had been steering him toward the entire sidebar.

Credibility Attacks (1)

⚔ unnamed Spanish-speaking witness

prior inconsistent statement / semantic challenge

Prosecution sought to use a linguist's letter to argue the witness's 128 uses of 'I don't remember' actually constituted denials; defense blocked the letter as hearsay but Ito allowed questioning about whether the witness was coached during the lunch recess.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5135 • 33 utterances

Criminal Trial

Department 103