Sidebar: Defendant's Exhibit 1039

📄 Sidebar: Defendant's Exhibit 1039 — Monday, March 6, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\6\SIDEBAR-DEFENDANT-S-EXHIBIT-10.DOC

TRIAL

▲ Day 31 of 167

◀ Cross-examination of Tom Lange (afternoon, part 6) Cross-examination of Tom Lange (afternoon, part 7) ▶

Date: Monday, March 6, 1995 • Lines: 19

During cross-examination of Detective Lange, Cochran attempted to use Defense Exhibit 1039—a crime scene investigation checklist—to question who was the officer in charge at the crime scene. Clark asserted that Fung filled out the form and argued that Lange lacked foundation to testify about it; Cochran said he did not know who wrote it. Ito agreed there was insufficient foundation to ask about the document at that point but allowed questions about which criminalist was assigned to the case.

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

# 2 THE COURT:

MISS CLARK.

# 3 MS. CLARK:

YES. WHAT COUNSEL IS ATTEMPTING TO SHOW TO DETECTIVE LANGE IS SOMETHING FILLED OUT BY FUNG. I DON'T EVEN KNOW THAT DETECTIVE LANGE HAS EVER SEEN IT. IT CERTAINLY HAS NO RELEVANCE TO HIS TESTIMONY OR HIS PART IN THE CASE.

# 4 THE COURT:

I ASSUME IT HAS SOMETHING TO DO WITH TIME.

# 5 MR. COCHRAN:

NO, IT DOESN'T. MAY I TELL YOU, YOUR HONOR?

# 6 THE COURT:

SURE.

# 7 MR. COCHRAN:

THIS ONE QUESTION I WANT TO ASK HIM -- I SEE OFFICER IN CHARGE, NAME MAZZOLA, ADDITIONAL NAME FUNG. SO I WANT TO ASK HIM WHETHER OR NOT MAZZOLA WAS THE OFFICER IN CHARGE, A TRAINEE WAS IN CHARGE. THAT'S A FAIR QUESTION. THIS IS THEIR FORM.

# 8 MS. CLARK:

THIS IS NOT THIS DETECTIVE'S FORM. HE DIDN'T FILL IT OUT. COUNSEL KNOWS VERY WELL THAT THAT WAS A MISTAKE.

# 9 MR. COCHRAN:

I DON'T KNOW IT WAS A MISTAKE.

# 10 MS. CLARK:

IF COUNSEL WANTS TO CROSS-EXAMINE SOMEONE ABOUT IT, IT SHOULD BE THE ONE WHO FILLED IT OUT OR WHO HAS SOME PERSONAL KNOWLEDGE. THIS WITNESS IS NOT THE RIGHT WITNESS. HE DOESN'T KNOW ANYTHING ABOUT IT. THIS IS A CRIMINALIST FORM, NOT A DETECTIVE FORM. HE'S GOT NOTHING TO DO WITH IT. IF COUNSEL WANTS TO ASK THIS DETECTIVE WHO HE LEFT IN CHARGE AND WHO HE FELT WAS IN CHARGE OF THE CRIME SCENE, THAT'S ONE THING. BUT TO ATTEMPT TO IMPEACH THIS DETECTIVE WITH A FORM FILLED OUT BY SOMEONE ELSE IS REALLY IMPROPER IMPEACHMENT.

# 11 MR. COCHRAN:

MAY I PROCEED, YOUR HONOR? I DON'T KNOW WHY WE ARE UP HERE. ALL I WANT TO ASK HIM -- IT INDICATES ON THIS FORM CRIME SCENE INVESTIGATION CHECKLIST. I'M PERMITTED TO ASK THIS. SHE MAY LIKE TO TRY HER CASE THAT WAY. I WANT TO TRY MY CASE THIS WAY.

# 12 THE COURT:

WHAT ARE WE GOING TO ASK?

# 13 MR. COCHRAN:

WELL, I HAVE TO EXPLAIN THAT ALSO?

# 14 THE COURT:

NO. YOU ARE GOING TO ASK THIS DETECTIVE WHO THE CRIMINALIST IN CHARGE WAS?

# 15 MR. COCHRAN:

I'M GOING TO ASK HIM WHO THE CRIMINALIST WAS AND WHAT DOES THIS MEAN, OIC MEAN. IS SOMEBODY GOING TO COME IN SAYING THAT? I DON'T KNOW. I DON'T KNOW WHO WROTE THIS, BUT I'M NOT PRECLUDED FROM ASKING THAT.

# 16 MS. CLARK:

YOUR HONOR, FOUNDATIONAL QUESTIONS SHOULD BE ASKED WITHOUT REFERENCE TO WHAT COUNSEL WANTS TO ELICIT THROUGH HEARSAY. COUNSEL KEEPS DOING THIS AND GOING OUTSIDE THE BOUNDARY OF WHAT A WITNESS CAN TESTIFY TO USING INAPPROPRIATE DOCUMENTS AND INFORMATION.

# 17 THE COURT:

I AGREE AT THIS POINT THERE'S INSUFFICIENT FOUNDATION TO ASK ABOUT THAT, BUT HE CAN ASK SOME QUESTIONS AS TO WHO THE CRIMINALIST WAS WHO WAS ASSIGNED TO THE CASE.

KEY QUOTE

# 18 MS. CLARK:

WITHOUT THIS DOCUMENT.

# 19 THE COURT:

SO FAR.

Temperature

tense

Key Quotes (3)

Marcia Clark

TO ATTEMPT TO IMPEACH THIS DETECTIVE WITH A FORM FILLED OUT BY SOMEONE ELSE IS REALLY IMPROPER IMPEACHMENT.

Clark's core objection — foundational challenge to using a document the witness didn't prepare and has no personal knowledge of.

Johnnie Cochran

I DON'T KNOW WHY WE ARE UP HERE. ALL I WANT TO ASK HIM -- IT INDICATES ON THIS FORM CRIME SCENE INVESTIGATION CHECKLIST. I'M PERMITTED TO ASK THIS. SHE MAY LIKE TO TRY HER CASE THAT WAY. I WANT TO TRY MY CASE THIS WAY.

Cochran pushes back on Clark's objection and defends his proposed questions about the crime scene investigation checklist.

Lance A. Ito

I AGREE AT THIS POINT THERE'S INSUFFICIENT FOUNDATION TO ASK ABOUT THAT, BUT HE CAN ASK SOME QUESTIONS AS TO WHO THE CRIMINALIST WAS WHO WAS ASSIGNED TO THE CASE.

Ruling: partial win for Clark — document excluded for now — but Cochran retains the right to probe the underlying factual question.

Evidence (1)

Defendant's 1039

Crime scene investigation checklist that Cochran described as listing Mazzola under officer in charge and Fung as an additional name

challenged — Cochran attempted to show to Detective Lange; Ito excluded it pending foundation

Notable Exchanges (2)

Johnnie Cochran•Marcia Clark

Cochran argued that the checklist listed Mazzola—a trainee—as OIC and wanted to question Lange about it. Clark asserted that Fung filled out the form, said Lange did not fill it out, expressed uncertainty about whether Lange had seen it, and called the entry a mistake. Cochran said he did not know it was a mistake or who wrote the form.

adversarial

Johnnie Cochran•Lance A. Ito

Ito pressed Cochran to clarify exactly what question he wanted to ask, forcing Cochran to narrow his examination.

strategic

Credibility Attacks (1)

⚔ Crime scene chain of command

impeachment via third-party document

Cochran sought to question Lange about whether Mazzola, described as a trainee, was the officer in charge based on entries on the checklist. Clark argued that Lange did not prepare the form and lacked personal knowledge; Cochran disputed her claim that the entry was a mistake, and Ito found insufficient foundation to ask about the document at that point while allowing questions about the assigned criminalist.

Objections

2 objections (1 sustained, 0 overruled)

Proceeding 5159 • 19 lines

Criminal Trial

Department 103