Sidebar: envelope and photographs

📄 Sidebar: envelope and photographs — Monday, March 6, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\6\SIDEBAR-ENVELOPE-AND-PHOTOGRAP.DOC

TRIAL

▲ Day 31 of 167

◀ Cross-examination of Tom Lange (afternoon, part 3) Cross-examination of Tom Lange (afternoon, part 4) ▶

Date: Monday, March 6, 1995 • Utterances: 54

During cross-examination of a witness, Cochran sought to use a photograph of an envelope to ask how the witness looked inside it, but the envelope itself had been sent to LAPD SID for testing. Clark objected that the photograph showed the envelope in an altered, flattened state prepared by criminalists and was therefore irrelevant to impeaching this witness. The sidebar also revealed that the judge had received a package of FBI shoeprint photographs that the defense had reviewed but the prosecution had not yet seen.

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

# 2 THE COURT:

WE ARE OVER HERE AT THE SIDEBAR. THIS APPEARS TO BE A PHOTOGRAPH OF WHAT APPEARS TO ME TO BE THE ENVELOPE.

# 3 MS. CLARK:

AND THE PROBLEM IS THAT IN THIS PHOTOGRAPH, IT IS NOT IN THE CONDITION IN WHICH THEY FOUND IT. THIS IS A CRIMINALIST PHOTOGRAPH. SO IT WAS STRETCHED OUT AND FLATTENED FOR THE PURPOSE OF DOCUMENTING CERTAIN ASPECTS OF THE BLOOD PATTERN AND SHOWING WHERE THEY SAMPLED BLOOD. IT'S NOT GOING TO BE RELEVANT TO THIS WITNESS' TESTIMONY BECAUSE HE IS NOT A CRIMINALIST. HE WASN'T PRESENT WHEN THE PHOTOGRAPH WAS TAKEN AND HE CAN'T TESTIFY TO HOW IT CAME TO BE IN THIS CONDITION OR HOW IT COMPARES TO THE WAY HE SAW IT. THERE'S JUST NO RELEVANCE TO IT AND IT WOULD CALL FOR SPECULATION.

# 4 THE COURT:

MR. COCHRAN.

# 5 MR. COCHRAN:

I ASKED YOUR HONOR'S CLERK FOR THE ENVELOPE. I'M GOING TO ASK HIM HOW HE LOOKED INSIDE THE ENVELOPE. THAT'S WHAT I WANT IT FOR. THE ENVELOPE ISN'T HERE. HOW CAN I MAKE THE DETERMINATION? THAT'S ALL I HAVE.

# 6 MS. CLARK:

IT IS TOO HERE. THE ENVELOPE IS HERE.

# 7 THE COURT:

NO.

# 8 MR. COCHRAN:

THE ENVELOPE ISN'T HERE. WHY DO YOU THINK I'M SEEKING TO USE THIS? WHY DO YOU KEEP LYING ON THE RECORD?

KEY QUOTE

# 9 MS. CLARK:

DON'T YOU DARE SAY THAT TO ME AGAIN, COUNSEL, USE THAT WORD.

KEY QUOTE

# 10 THE COURT:

WAIT, WAIT, WAIT.

# 11 MS. CLARK:

THE ENVELOPE WAS MARKED --

# 12 THE COURT:

WAIT, WAIT, WAIT. THANK YOU. THE ENVELOPE IS IN EVIDENCE. HOWEVER, IF YOU RECALL, WE AGREED TO RELEASE CERTAIN ITEMS OF EVIDENCE FOR TESTING BACK TO LAPD SID. THAT'S WHERE IT IS. THIS MORNING.

# 13 MS. CLARK:

THIS MORNING?

# 14 THE COURT:

THIS MORNING.

# 15 MS. CLARK:

THE PROBLEM IS, YOUR HONOR, THAT --

# 16 THE COURT:

DO ME A HUGE FAVOR TOO. WHEN I SAY WAIT, IT MEANS LIKE WE'RE IN A WRESTLING MATCH WHEN THE REFEREE SAYS BREAK.

KEY QUOTE

# 17 MR. DARDEN:

I LEARNED MY LESSON.

# 18 MS. CLARK:

I WAS NOT AWARE IT HAD BEEN RELEASED FROM EVIDENCE BECAUSE I REMEMBER MARKING IT. THE PROBLEM WITH THIS PHOTOGRAPH IS, WE DON'T KNOW WHEN IT WAS TAKEN. IT'S OBVIOUSLY NOT IN THE CONDITION IN WHICH IT WAS FOUND BECAUSE THE COURT SAW THE ENVELOPE WHEN WE MARKED IT AND THE WITNESS TESTIFIED TO THE MANNER IN WHICH HE SAW IT. THIS IS IRRELEVANT TO ANY IMPEACHMENT OF THIS WITNESS BECAUSE IT'S BEEN ALTERED FOR THE PURPOSES OF THE CRIMINALIST TAKING THE PHOTOGRAPH. I DON'T KNOW WHO TOOK IT. I DON'T KNOW WHEN IT WAS TAKEN. I DON'T KNOW WHAT WAS DONE TO IT TO PUT IT IN THIS POSITION.

# 19 THE COURT:

THIS IS THE FBI, AND I ASSUME IT'S BECAUSE OF WHAT APPEARS TO BE MAYBE POSSIBLY FOOTPRINTS ON IT.

# 20 MS. CLARK:

IT MAY VERY WELL BE. BUT WHAT DOES THAT HAVE TO DO WITH THIS WITNESS' KNOWLEDGE? IT'S NOT IMPEACHING OF THIS WITNESS BECAUSE SOMEONE ELSE HAS ALTERED IT.

# 21 MR. COCHRAN:

JUDGE --

# 22 THE COURT:

MR. COCHRAN.

# 23 MR. COCHRAN:

INTERESTINGLY -- THIS IS FOR IMPEACHMENT. I'M TRYING TO ASK HIM WHAT HE LOOKED AT -- HOW HE LOOKED AT IT. AND IF HE SAYS -- THIS IS A PHOTOGRAPH WE GOT I PRESUME FROM THEM. I JUST WANT TO ASK HIM WHETHER OR NOT HE CAN LOOK AT THAT AND SHOW US AND TELL US WHERE HE LOOKED. HE SAID HE LOOKED IN THE ENVELOPE. I'M TRYING TO FIND OUT --

# 24 THE COURT:

LET ME ASK, DON'T WE HAVE A CLOSE-UP PHOTOGRAPH OF THIS THING AT THE CRIME SCENE WHERE YOU CAN LOOK AT IT?

# 25 MS. CLARK:

THAT'S EXACTLY MY POINT. IF HE WANTS TO SHOW SOMETHING AT THE CRIME LAB --

# 26 THE COURT:

DO YOU HAVE YOUR PHOTO BOOK?

# 27 MS. CLARK:

UH-HUH.

# 28 THE COURT:

LET'S SEE YOUR PHOTO BOOK.

# 29 MR. DARDEN:

CAN WE GO OFF THE RECORD?

# 30 THE COURT:

YES. OFF THE RECORD.

# 31 (A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

# 32 THE COURT:

THE ONE THAT YOU NEED TO LOOK AT IS PROBABLY THIS ONE HERE (INDICATING) BECAUSE THIS IS BEFORE IT'S MOVED. THIS IS AFTER THE CRIMINALIST HAS MOVED IT. IT'S BEEN MOVED. SO PROBABLY PEOPLE'S 104 IS THE ONE WE NEED TO TALK ABOUT HERE.

# 33 MR. COCHRAN:

THIS ONE HERE?

# 34 THE COURT:

YEAH. 104. THEY HAVE IT ON LASER, RIGHT, P-104?

# 35 MS. CLARK:

P-104.

# 36 MR. COCHRAN:

WE CAN PUT IT ON THE ELMO, WHATEVER. I JUST WANT TO ASK HIM SOME QUESTIONS ABOUT HOW HE PEERED INTO IT. THIS IS THE ONE AFTER IT'S BEEN MOVED, YOUR HONOR?

# 37 THE COURT:

NO.

# 38 MS. CLARK:

THAT'S THE ONE BEFORE AFTER THE CORONER TOOK -- YOUR HONOR, I DON'T HAVE THESE PICTURES.

# 39 MR. DARDEN:

THIS ONE SHOULD BE OURS NOW.

# 40 MR. COCHRAN:

PROBABLY ONE OF THE THINGS CARL BROUGHT THAT HE PROBABLY GOT FROM BOB BLASIER. THIS MAY BE EXPERT STUFF.

# 41 THE COURT:

WHAT HAPPENED, I GOT -- YOU GOT MY CALL LATE FRIDAY NIGHT I'M SURE. I GOT ANOTHER PACKAGE OF STUFF FROM THE FBI, THAT HE LEFT A MESSAGE AND I THINK SCHECK CAME AND CHECKED IT OUT FIRST. THAT'S PROBABLY WHAT THAT IS.

# 42 MS. CLARK:

OH, NO.

# 43 THE COURT:

TO TELL YOU THE TRUTH, I DIDN'T LOOK AT THE PHOTOGRAPHS. I THINK THAT'S ONE OF THEM. I'M NOT CERTAIN THOUGH.

# 44 MS. CLARK:

SO THE DEFENSE HAS ALL THIS PACKAGE OF PHOTOGRAPHS WE DON'T HAVE?

KEY QUOTE

# 45 THE COURT:

YEAH. ALL SHOEPRINTS.

# 46 MS. CLARK:

AND IS THERE A REPORT?

# 47 THE COURT:

WE'LL TALK ABOUT THAT WHEN WE BREAK FOR LUNCH.

# 48 MS. CLARK:

YOU DON'T HAVE AN EXTRA COPY?

# 49 THE COURT:

NO. I ONLY HAVE ONE SET.

# 50 MS. CLARK:

WE NEED THE DEFENSE TO BRING THAT IN. THERE'S ONLY ONE SET?

# 51 THE COURT:

ONE SET. YOU HAVE MY SET.

# 52 MR. COCHRAN:

TALK TO BLASIER.

# 53 THE COURT:

WE WILL TALK ABOUT IT AT NOON.

# 54 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

Temperature

heated

Key Quotes (4)

Johnnie Cochran

THE ENVELOPE ISN'T HERE. WHY DO YOU THINK I'M SEEKING TO USE THIS? WHY DO YOU KEEP LYING ON THE RECORD?

Cochran directly accuses Clark of lying on the record at sidebar — an unusually sharp personal attack even by the standards of this trial.

Marcia Clark

DON'T YOU DARE SAY THAT TO ME AGAIN, COUNSEL, USE THAT WORD.

Clark's furious response escalates the sidebar into a personal confrontation, requiring Ito to intervene.

Lance A. Ito

DO ME A HUGE FAVOR TOO. WHEN I SAY WAIT, IT MEANS LIKE WE'RE IN A WRESTLING MATCH WHEN THE REFEREE SAYS BREAK.

Ito's exasperated attempt to restore order reveals how badly the sidebar has devolved.

Marcia Clark

SO THE DEFENSE HAS ALL THIS PACKAGE OF PHOTOGRAPHS WE DON'T HAVE?

Clark discovers mid-sidebar that the defense has reviewed FBI shoeprint photos the prosecution has not received — a disclosure problem.

Evidence (4)

People's 104

Crime scene photograph of the envelope before it was moved by criminalists

Identified by Ito as the appropriate photo for cross-examination; discussed as alternative to the disputed criminalist photo

Informal

Criminalist photograph of envelope, flattened and stretched to document blood pattern and sampling locations

Challenged by Clark as altered and irrelevant to lay witness impeachment; ruled inappropriate for use

Informal

Package of FBI shoeprint photographs sent to the court, reviewed by Scheck/defense but not yet provided to prosecution

Disclosed during sidebar; Ito deferred full discussion to noon recess

Informal

The envelope itself (physical evidence)

Absent from court — released to LAPD SID for testing pursuant to prior agreement

Notable Exchanges (3)

Johnnie Cochran•Marcia Clark

Cochran accused Clark of 'lying on the record' about whether the envelope was present; Clark responded with visible anger, telling him never to use that word again. Ito had to intervene repeatedly with 'wait, wait, wait.'

heated

Marcia Clark•Lance A. Ito

Clark learned mid-sidebar that the envelope had been sent to LAPD SID that morning — she had not been aware it was released from evidence, having remembered marking it herself.

surprised

Marcia Clark•Lance A. Ito

Clark discovered that the defense had already reviewed a new FBI shoeprint photo package that the prosecution had not received. Ito acknowledged he only had one set and deferred resolution to the lunch break.

tense

Light Moments (2)

Christopher Darden

After Ito told everyone to stop talking over each other by comparing himself to a wrestling referee calling 'break,' Darden quipped 'I LEARNED MY LESSON.'

Lance A. Ito

Ito compared the sidebar chaos to a wrestling match: 'WHEN I SAY WAIT, IT MEANS LIKE WE'RE IN A WRESTLING MATCH WHEN THE REFEREE SAYS BREAK.'

Credibility Attacks (1)

⚔ unnamed witness (lay witness, not criminalist)

documentary impeachment via photograph

Cochran sought to use a photo of the envelope to challenge the witness's account of how he looked inside it; Clark successfully argued the photo showed the envelope in an altered state the witness never saw, making it irrelevant for impeachment.

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 5153 • 54 utterances

Criminal Trial

Department 103