Sidebar: redirect scope

📄 Sidebar: redirect scope — Friday, March 3, 1995

Address:

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

TRIAL

▲ Day 30 of 167

◀ Midday recess Redirect examination of Rosa Maria Lopez ▶

Date: Friday, March 3, 1995 • Utterances: 69

Defense and prosecution haggle at sidebar over whether Cochran can ask Rosa Lopez redirect questions explaining a birth date discrepancy on her driver's license. Lopez's personal attorney (Jones) threatens to invoke the Fifth Amendment if questioning opens the door to broader document fraud issues, while Darden counters that he will pursue Social Security discrepancies if the defense rehabilitates her on the license question. No clean resolution is reached.

# 1 MR. COCHRAN:

YOUR HONOR, I HAD ONE QUESTION ON SCOPE IF THE COURT RECALLS.

# 2 THE COURT:

YES. LET ME SEE COUNSEL AT THE SIDE BAR WITH THE REPORTER AND MR. JONES.

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

# 4 THE COURT:

WE ARE OVER HERE AT THE SIDE BAR AND YOU'VE GOT YOUR MICROPHONE TURNED OFF?

# 5 MR. COCHRAN:

NO, I DON'T. CAN YOU TURN IT OFF?

# 6 THE COURT:

OKAY.

# 7 MR. BAILEY:

YOU DID.

# 8 THE COURT:

YOUR QUESTION WAS WHAT, MR. COCHRAN?

# 9 MR. COCHRAN:

MY QUESTION, YOUR HONOR, WAS -- HAD TO DO WITH -- THERE WAS A COUPLE OF QUESTIONS STILL ON THE RECORD WITH REGARD TO HER DRIVER'S LICENSE BEING DATED JANUARY 6, 1945. THAT IS IN FACT HER BIRTHDAY AND I BELIEVE THERE WAS A REASONABLE AND LOGICAL EXPLANATION, BUT I DON'T KNOW THE ARRANGEMENTS THAT HAVE BEEN WORKED OUT AND I DON'T KNOW IF THAT IS GOING TO BE STRICKEN BASED UPON THE AGREEMENT, BECAUSE I HAD ASKED IF THE COURT STRIKES ANY QUESTIONS RELATING TO THE DATE ON THE DRIVER'S LICENSE, THEN I DON'T WANT TO GO INTO IT, BUT IT IS STILL GOING TO BE ON THERE. I WANT TO ASK LEAVE TO ASK A COUPLE OF QUESTIONS ABOUT HOW THIS CAME ABOUT.

# 10 THE COURT:

UH-HUH.

# 11

MR. COCHRAN: IF MR. JONES HAS NO OBJECTION. (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

# 12 MR. DARDEN:

WELL, THAT -- THAT DEPENDS ON MR. JONES, BUT THERE IS AN ISSUE AS WELL, AS I UNDERSTAND IT, AS TO THE DOB SHE HAS GIVEN SOCIAL SECURITY AS WELL, SO -- WHICH I'M NOT GOING INTO.

# 13 MR. COCHRAN:

OKAY. WELL, I'M NOT TALKING ABOUT THAT. I'M TALKING ABOUT THE LICENSE BECAUSE THAT IS ON THE RECORD NOW.

# 14 MR. DARDEN:

IF WE ARE GOING TO CONTINUE TO MAKE AN ISSUE OF BIRTHDATES AND INFORMATION SHE PUT ON OFFICIAL DOCUMENTS --

# 15 THE COURT:

MR. JONES.

# 16 MR. BAILEY:

CAN WE AGREE TO STRIKE?

# 17 MR. COCHRAN:

ONLY A COUPLE OF QUESTIONS.

# 18 MR. BAILEY:

DO YOU WANT THE JURY TO HEAR IT?

# 19 MR. DARDEN:

HEAR WHAT?

# 20 MR. BAILEY:

THE QUESTION YOU YOU PUT TO HER?

# 21 THE COURT:

MR. JONES, WHAT IS YOUR CLIENT'S POSITION?

# 22 MR. JONES:

YOUR HONOR, ABSENT A GRANT OF IMMUNITY, I WOULD ADVISE HER NOT TO ANSWER ANY QUESTIONS REGARDING HER DATE OF BIRTH UNLESS MR. DARDEN REPRESENTS THAT HE WILL NOT REVISIT THE AREA ON RECROSS.

# 23 THE COURT:

MR. DARDEN.

# 24 MR. DARDEN:

WELL, I'M NOT ABOUT TO GRANT MISS LOPEZ IMMUNITY, AND AS FAR AS STRIKING THE TESTIMONY, IT ALL HAS TO BE STRICKEN ONE WOULD THINK.

# 25 THE COURT:

MR. DARDEN, THE PROPOSAL BY MR. JONES IS THAT HE WOULD NOT OBJECT TO THE QUESTIONS BY MR. COCHRAN ON REDIRECT IF THERE IS NO RECROSS ON THAT MATTER.

# 26 MR. DARDEN:

OKAY. WELL --

# 27 MR. COCHRAN:

CAN I JUST TELL YOU WHAT THE QUESTIONS ARE?

# 28 THE COURT:

ALL RIGHT. MR. COCHRAN.

# 29 MR. COCHRAN:

SO YOU KNOW, THAT AS I UNDERSTAND THE RECORD NOW, THERE IS SOME INDICATION THAT YOU HAVE A DRIVER'S LICENSE AND THE DATE OF BIRTH IS JANUARY 6, 1945, OR SOMETHING LIKE THAT. I HAVEN'T SEEN THE TRANSCRIPT. SOMETHING TO THAT EFFECT. AS I UNDERSTAND IT, SHE HAS AN EXPLANATION FOR HOW THIS CAME ABOUT, THAT SHE TRIED TO STRAIGHTEN IT OUT AFTER SHE FOUND HER LICENSE CAME WITH '45. SHE SAID '48 AND THEY SAID DON'T WORRY ABOUT IT. DON'T WORRY ABOUT IT. SO THERE IS A REAL QUESTION HOW THIS HAPPENS. IF THE QUESTION REMAINS BEFORE THE COURT, WE SHOULD HAVE A RIGHT TO GO INTO IT AND THAT IS WHY I WANT MR. JONES HERE AND I WANT TO HEAR HER EXPLANATION WITHOUT GOING INTO ANYTHING FURTHER; NOT TALKING ABOUT SOCIAL SECURITY, NOTHING DOING ANYTHING LIKE THAT.

# 30 MR. DARDEN:

BUT I WILL. IF SHE GOES BACK INTO THE BIRTHDAY ISSUE AND SHE CLAIMS IT IS AN INNOCENT MISTAKE, I'M GOING TO ASK HER ABOUT SOCIAL SECURITY AND WHETHER OR NOT SHE HAD A DISPUTE WITH SOCIAL SECURITY REGARDING HER DIFFERENT BIRTHDATES.

KEY QUOTE

# 31 THE COURT:

WELL, I GUESS THE DEAL IS THEN THAT IF YOU GO INTO IT, MR. JONES IS LIKELY TO INTERPOSE AN OBJECTION UNDER THE 5TH AMENDMENT, AND BECAUSE MR. DARDEN IS INDICATING THAT HE IS -- IF THAT DOES COME UP ON REDIRECT, HE IS GOING TO REVISIT IT WITH ADDITIONAL THINGS, SO --

# 32 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 33 MR. COCHRAN:

IF THE COURT SEES THE PROBLEM HERE --

# 34 THE COURT:

YOU SEE, THAT IS AN ARGUMENT WE CAN TAKE UP LATER.

# 35 MR. COCHRAN:

WELL --

# 36 THE COURT:

-- WHETHER OR NOT --

# 37 MR. COCHRAN:

WELL, YOU CAN SEE THE FUNDAMENTAL UNFAIRNESS IN THIS. I DON'T WANT TO DO ANYTHING TO PREJUDICE THIS CLIENT, BUT THEN I'M NOT WAIVING THAT BECAUSE WE ARE NOT GOING TO HAVE HER HERE, LET'S ASSUME. WE MAKE THE JUDGMENT OF PUTTING THIS TAPE TOGETHER SO WHY WOULDN'T THE COURT LET ME ASK THOSE COUPLE OF QUESTIONS AND HEAR IT ALL AT ONE TIME AND PRECLUDE IT FROM GOING ANY FURTHER IF I JUST ASK THIS ONE AREA?

KEY QUOTE

# 38 THE COURT:

HERE IS THE PROBLEM: IF YOU ASK THE QUESTIONS AND MR. JONES INTERPOSES THE OBJECTION, I HAVE TO SUSTAIN THE OBJECTION.

# 39 MR. COCHRAN:

BUT ISN'T IT ON THE PEOPLE, THOUGH? THEY HAVE BEEN ALLOWED TO ASK THOSE -- THOSE -- THOSE COUPLE OF QUESTIONS.

# 40 THE COURT:

WELL, HERE IS THE PROBLEM, THOUGH: AS SOON AS THE QUESTION AND ANSWER CAME OUT AND I REALIZED WHAT IT WAS -- I DIDN'T KNOW THE QUESTION WAS COMING.

# 41 MR. COCHRAN:

OKAY. I UNDERSTAND.

# 42 THE COURT:

WHEN THE QUESTION AND ANSWER WENT BY, THAT IS WHEN I JUMPED IN AND STOPPED IT.

# 43 MR. COCHRAN:

YES, YOU DID, AND MISS HAMBURGER WAS THERE. I'M GOING TO MOVE, AND YOU CAN TAKE IT UNDER SUBMISSION, TO STRIKE THOSE QUESTIONS AND ANSWERS.

# 44 MR. DARDEN:

AND I WILL MOVE TO STRIKE THE ENTIRE TESTIMONY. WE HAVE A RIGHT TO FULL AND COMPLETE CROSS-EXAMINATION AND THIS DOES WEIGH HEAVILY ON HER CREDIBILITY.

# 45 THE COURT:

I WOULD SUGGEST WE WILL DO THIS THEN: I WOULD SUGGEST THAT SINCE THIS IS A CONDITIONAL EXAMINATION, NOT BEFORE THE JURY, WHAT WE CAN DO IS -- WELL, THE PROBLEM IS, THOUGH, IF MR. JONES INTERPOSES A FIFTH AMENDMENT OBJECTION, THEN THERE IS NOTHING MUCH I CAN DO BEYOND THAT POINT. I CAN'T FORCE HER TO TESTIFY.

# 46 MR. DARDEN:

AND IF THERE IS AN OBJECTION DURING MY RECROSS-EXAMINATION ON THOSE SAME AREAS, THEN I'M GOING TO MOVE TO STRIKE IT ALL.

# 47 MR. COCHRAN:

HE CAN DO WHATEVER HE WANTS TO DO. THAT DOESN'T BOTHER ME WHAT HE MOVES, BUT THE COURT SEES WHAT THE PROBLEM IS.

# 48 THE COURT:

I SEE WHAT THE PROBLEM IS, BUT I DON'T SEE A SIMPLE SOLUTION.

KEY QUOTE

# 49 MR. COCHRAN:

WELL, I THINK MAYBE BE THE SIMPLE SOLUTION WOULD BE FOR THE COURT TO STRIKE THOSE TWO QUESTIONS, THE QUESTIONS AND ANSWERS, BECAUSE WE DIDN'T KNOW IT WAS COMING. HE BRINGS IT OUT AND THEN YOU DID THE RIGHT THING, SHE HAD COUNSEL SITTING IN THE BACK AND THEN AN ACCOMMODATION WAS STRUCK, AND I'M JUST TRYING TO GET IN THE RECORD WHAT IS REASONABLE BEFORE THE JURY. THAT IS WHAT THE COURT I'M SURE WANTS.

# 50 THE COURT:

WELL, I DON'T HAVE TO STRIKE IT AT THIS POINT. MR. JONES.

# 51 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 52 MR. COCHRAN:

WELL, RATHER THAN HAVE -- I WOULD NOT RATHER DO THAT IN OPEN COURT, THOUGH, SINCE WE KNOW THERE IS GOING TO BE AN OBJECTION. MAY I MAKE AN OFFER OF PROOF NOW?

# 53 THE COURT:

OKAY.

# 54 MR. COCHRAN:

ALL RIGHT. THE OFFER OF PROOF, AS I UNDERSTAND IT -- MAY I HAVE JUST A SECOND?

# 55 (DISCUSSION HELD OFF THE RECORD BETWEEN MR. COCHRAN AND MR. JONES.)

# 56 MR. COCHRAN:

ALL RIGHT. WHEN SHE -- AS I UNDERSTAND IT, AFTER CONFERRING WITH MR. JONES, WHEN SHE FILLED OUT THE DRIVER'S LICENSE APPLICATION SHE WAS GETTING SOME HELP AND THERE WAS A LANGUAGE PROBLEM AND THEN PUT ON THE YEAR '45 AS OPPOSED TO '38. WHEN SHE RECEIVED HER LICENSE AND SAW IT SAID '45, SHE CALLED AND SAID DON'T WORRY ABOUT IT, DON'T WORRY ABOUT IT, WOMEN DO THIS ALL THE TIME, AND SHE NEVER HAD IT CHANGED, BUT SHE DOESN'T TRY TO RUN FROM WHATEVER HER DATE OF BIRTH IS, SO THAT IS THE OFFER OF PROOF.

# 57 MR. DARDEN:

OKAY. I'M GOING TO COME BACK AND SAY, OKAY, WHAT HAPPENED WITH SOCIAL SECURITY? ALSO, IN LOOKING AT THE PRINTOUT THAT I HAVE, I WAS LOOKING AT IT BEFORE I CAME DOWN, AND IT SHOWS ROSA LOPEZ WITH A 1/6/42 BIRTHDAY AND A CII NUMBER, AND I DON'T KNOW IF THAT IS MISS LOPEZ OR NOT, BUT IT HAS THE SAME HEIGHT.

# 58 MR. COCHRAN:

VERY COMMON NAME.

# 59 MR. DARDEN:

SAME HEIGHT AND IT FITS HER PHYSICAL DESCRIPTION.

# 60 MR. COCHRAN:

THERE IS A LOT OF ROSA LOPEZES. EVERY NIGHT ONE LEAVES ON TACA.

KEY QUOTE

# 61 THE COURT:

I WOULD IMAGINE.

# 62 MR. DARDEN:

SURE.

# 63 MR. JONES:

YOUR HONOR, IS IT POSSIBLE FOR ME TO ASSERT THE PRIVILEGE AT THIS TIME OR REACH SOME AGREEMENT THAT WE WILL NOT GO INTO THAT AREA? I THINK SHE HAS ENOUGH PROBLEMS WITHOUT ME VOICING CONCERN OVER SELF-INCRIMINATION ON NATIONAL TELEVISION.

# 64 THE COURT:

WELL, I DON'T KNOW THAT THAT IS THE APPROPRIATE WAY TO DO IT, BECAUSE WE HAVE TO HAVE THE QUESTION POSED BEFORE YOU CAN -- YOU CAN POSE THE OBJECTION.

# 65 MR. COCHRAN:

WELL, I MADE MY OFFER OF PROOF AND SO I THINK WHAT HE IS SAYING IS THAT MR. DARDEN -- IF I DON'T WANT TO GO INTO --

# 66 THE COURT:

IF YOU DON'T GO INTO IT, THEN WE DON'T HAVE THE PROBLEM.

# 67 MR. DARDEN:

SHE HAS TO ASSERT THE PRIVILEGE UNDER OATH.

# 68 MR. COCHRAN:

HE HAS MISSED THE WHOLE POINT.

# 69 MR. DARDEN:

I JUST WANT YOU TO KNOW.

Temperature

tense

Key Quotes (5)

Johnnie Cochran

YOU CAN SEE THE FUNDAMENTAL UNFAIRNESS IN THIS. I DON'T WANT TO DO ANYTHING TO PREJUDICE THIS CLIENT, BUT THEN I'M NOT WAIVING THAT BECAUSE WE ARE NOT GOING TO HAVE HER HERE.

Cochran flags the catch-22: he cannot rehabilitate Lopez on the record because doing so triggers Fifth Amendment exposure and opens the door to worse impeachment.

Christopher Darden

IF SHE GOES BACK INTO THE BIRTHDAY ISSUE AND SHE CLAIMS IT IS AN INNOCENT MISTAKE, I'M GOING TO ASK HER ABOUT SOCIAL SECURITY AND WHETHER OR NOT SHE HAD A DISPUTE WITH SOCIAL SECURITY REGARDING HER DIFFERENT BIRTHDATES.

Darden reveals he has additional impeachment material and is explicitly threatening to use it if the defense opens the door.

Lance A. Ito

I SEE WHAT THE PROBLEM IS, BUT I DON'T SEE A SIMPLE SOLUTION.

Captures the intractable procedural knot at the heart of the sidebar — the court is effectively stuck.

Johnnie Cochran

THERE IS A LOT OF ROSA LOPEZES. EVERY NIGHT ONE LEAVES ON TACA.

Cochran deflects Darden's suggestion that a criminal records printout matching Lopez's physical description is actually her — with a dig at her credibility as a flight risk wrapped in a joke.

Mr. Jones

I THINK SHE HAS ENOUGH PROBLEMS WITHOUT ME VOICING CONCERN OVER SELF-INCRIMINATION ON NATIONAL TELEVISION.

Lopez's own attorney acknowledges her precarious credibility position and the public spectacle of the trial simultaneously.

Evidence (3)

Informal

Rosa Lopez's California driver's license showing birth date of January 6, 1945 (disputed — she claims clerical error, actual birth year variously stated as 1938 or 1948)

discussed as basis for credibility challenge; Cochran seeks to rehabilitate with offer of proof

Informal

Criminal records printout Darden has in hand showing a 'Rosa Lopez' with 1/6/42 birthday, CII number, and matching physical description

referenced by Darden as potential additional impeachment material

Informal

Social Security records showing a different birth date for Lopez

referenced by Darden as threat — will be pursued if defense opens door on license discrepancy

Notable Exchanges (3)

Johnnie Cochran•Christopher Darden

Cochran offers a detailed offer of proof — Lopez had a language problem filling out the DMV form, inadvertently wrote '45 instead of '38, was told by DMV 'don't worry about it.' Darden immediately responds that he will counter with Social Security discrepancies and a criminal printout matching her description.

strategic

Mr. Jones•Lance A. Ito•Christopher Darden

Lopez's personal attorney asks whether he can preemptively assert the Fifth Amendment privilege to avoid the question being posed publicly, rather than waiting for it to be asked. Ito says the privilege must be asserted in response to an actual question; Darden adds she must assert it under oath.

procedural

F. Lee Bailey•Christopher Darden

Bailey asks whether both sides can simply agree to strike the driver's license questions from the record, which would moot the entire problem. Darden declines, insisting the credibility attack weighs heavily and he has a right to full cross-examination.

strategic

Light Moments (1)

Johnnie Cochran

After Darden suggests a criminal printout matching Lopez's physical description might be her, Cochran deadpans: 'THERE IS A LOT OF ROSA LOPEZES. EVERY NIGHT ONE LEAVES ON TACA.' — a reference to the Central American airline and Lopez's announced plan to return to El Salvador.

Credibility Attacks (1)

⚔ Rosa Lopez

prior inconsistent statements / false information on official documents

Darden exploits a discrepancy between the birth date on Lopez's driver's license and her actual birth date, and signals he has additional discrepancies in her Social Security records and possibly a criminal record, to undermine her credibility as a defense alibi witness.

Objections

None recorded

Proceeding 5128 • 69 utterances

Criminal Trial

Department 103