Sidebar: cut finger testimony

📄 Sidebar: cut finger testimony — Thursday, March 9, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\9\SIDEBAR-CUT-FINGER-TESTIMONY.DOC

TRIAL

▲ Day 34 of 167

◀ Recross-examination of Tom Lange (part 1) Recross-examination of Tom Lange (part 2) ▶

Date: Thursday, March 9, 1995 • Utterances: 18

Clark erupts at Cochran for asking a witness in front of the jury whether OJ gave an explanation for his cut finger, violating a prior hearsay ruling. Cochran argues the question itself was not hearsay — he only asked if a conversation occurred, not what was said. Judge Ito resolves the dispute by drawing a precise line: 'Did you discuss the cut on the finger?' is permissible, but 'Did he give you an explanation?' implies hearsay.

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

# 2 MS. CLARK:

YOUR HONOR, HOW MANY TIMES DOES THE COURT HAVE TO MAKE A RULING? YOU KNOW, COUNSEL WENT AHEAD AND ASKED THE QUESTION IN FRONT OF THE JURY WITHOUT ASKING TO APPROACH THE BENCH. IF COUNSEL WANTED TO DO SOMETHING TO OVERCOME THE RULING THAT THE COURT MADE YESTERDAY -- WHICH IS BY THE WAY A STANDARD RULING MADE IN EVERY CRIMINAL COURT IN THIS LAND, THAT HIS ATTEMPT TO GET IN THE DEFENDANT'S STATEMENT IS HEARSAY, IS ABSOLUTELY ACCEPTED BY ALL ATTORNEYS WHERE COUNSEL CAN'T CLAIM HE DID NOT KNOW THAT. THIS IS DESPICABLE. THIS IS REPREHENSIBLE BEHAVIOR. THE COURT MADE ITS RULING THAT IT'S HEARSAY, AND COUNSEL INSISTED ON APPROACHING THE BENCH TO BROACH THE SUBJECT MATTER BEFORE HE RAISED IT AGAIN AND NOW HE'S DELIBERATELY DONE THE EXACT OPPOSITE, RAISED IT IN FRONT OF THE JURY WITHOUT TRYING TO ASK THE COURT FOR SOME RELIEF FROM ITS PRIOR RULING, WHICH BY THE WAY IS A RULING THAT I HAVE NEVER SEEN MADE DIFFERENTLY IN ANY COURT.

# 3 MR. COCHRAN:

I ASKED TO APPROACH -- COUNSEL KEEPS MAKING THESE MACHINATIONS.

# 4 MS. CLARK:

AND I WOULD ASK THE COURT TO CITE COUNSEL FOR MISCONDUCT.

# 5 MR. COCHRAN:

-- AT THE END OF THE DAY YESTERDAY. ALL I ASKED -- THE QUESTION WAS WHETHER OR NOT -- SHE BRINGS OUT, YOUR HONOR, THIS LAWYER, THIS LAWYER SHOULD NOT BE HEARD. SCREAMING DOESN'T MAKE SHRILLNESS. WHEN COUNSEL STANDS UP HERE AND SAYS SHE'S NEVER HEARD ANY DIFFERENT RULING, THAT'S MORE LIES. I DON'T WANT TO RESPOND TO THAT, BUT -- YOUR HONOR, ON REDIRECT EXAMINATION, SHE BROUGHT IN THE FACT THAT THIS MAN HAD A CUT FINGER. ALL I'M ASKING IS WHETHER OR NOT IN THE COURSE OF YOUR INVESTIGATION, TALKING TO HIM, DID HE GIVE YOU AN EXPLANATION. THAT IS NOT HEARSAY. HE GAVE YOU AN EXPLANATION, THAT IS NOT HEARSAY. I DIDN'T ASK WHAT HE SAID. IT'S NOT HEARSAY. AT THE END OF THE DAY, YOUR HONOR INDICATED YOU WERE GOING TO CHECK BACK WITH YOUR NOTES AND SEE WHERE SHE OPENS THE DOOR WITH REGARD TO THE CUT FINGER AND THEN HE GIVES AN EXPLANATION HOW HE GOT THE CUT FINGER. AND, JUDGE, FURTHER, AS AN OFFER OF PROOF, THEY INVESTIGATED IN CHICAGO AND THEY FOUND GLASS IN A FACE BASIN OR WHATEVER CONTEXT SHATTERED WITH BLOOD, YOUR HONOR, WITH A TOWEL THEREON. THAT'S TOTALLY UNFAIR. WE HAVE A CUT FINGER IN THIS CASE AND I CAN'T BRING THAT OUT FROM THIS INVESTIGATOR, SIR?

# 6 THE COURT:

BUT THE QUESTION WAS, "DID YOU EXAMINE HIS HAND?" IT WASN'T THAT HE MAKE A STATEMENT TO YOU. SO TO SAY -- HERE'S THE PROBLEM, JOHNNIE. WHEN YOU ASK, "DID HE GIVE YOU AN EXPLANATION," THE QUESTION ITSELF SAYS THAT HE SAID SOMETHING THAT EXPLAINS THAT.

# 7 MR. COCHRAN:

JUDGE, THAT'S JUST THE QUESTION. HE NEVER ANSWERED IT. BUT, JUDGE, IF HE SAYS YES, THAT'S ALL I CAN GO INTO. WE'RE ALLOWED TO ASK, "DID YOU HAVE A CONVERSATION," "YES," AND --

# 8 THE COURT:

"DID YOU HAVE A CONVERSATION REGARDING THE FINGER," YES, THAT'S AN APPROPRIATE QUESTION.

# 9 MR. COCHRAN:

I DIDN'T ASK HIM FOR THE EXPLANATION. "DID YOU HAVE A CONVERSATION REGARDING A CUT FINGER?" "YES." BUT, JUDGE, THE OTHER POINT IS THIS. YOU WERE GOING TO CHECK YOUR NOTES WHERE THEY OPEN THIS UP AND BRING OUT THIS INFORMATION ABOUT THE CUT FINGER. I DON'T KNOW IF YOU HAD A CHANCE TO DO IT. YOU SAID AT THE END OF THE DAY YOU WOULD.

# 10 THE COURT:

MY RECOLLECTION IS, SHE ASKED, "DID HE SAY SOMETHING BACK TO YOU?"

# 11 MR. COCHRAN:

HAS THE COURT HAD A CHANCE TO CHECK THAT?

# 12 THE COURT:

I HAVE NOT.

# 13 MR. COCHRAN:

I EXPECT TO FINISH WITH HIM SHORTLY.

# 14 THE COURT:

HE'S AVAILABLE.

# 15 MR. COCHRAN:

WOULD YOU -- WELL, WHAT'S THE QUESTION I AM PERMITTED TO ASK?

# 16 THE COURT:

"DID YOU DISCUSS WITH HIM THE CUT ON THE FINGER, YES OR NO."

# 17 MR. COCHRAN:

OKAY. THANK YOU.

# 18 THE COURT:

AN EXPLANATION GIVES A CONNOTATION.

KEY QUOTE

Temperature

heated

Key Quotes (5)

Marcia Clark

THIS IS DESPICABLE. THIS IS REPREHENSIBLE BEHAVIOR.

Clark's most charged accusation of the sidebar — she is calling Cochran's conduct deliberate misconduct, not a mistake, and asking for a formal citation.

Johnnie Cochran

WE HAVE A CUT FINGER IN THIS CASE AND I CAN'T BRING THAT OUT FROM THIS INVESTIGATOR, SIR?

Cochran's core frustration: the defense has potentially exculpatory physical evidence (glass, blood, towel in Chicago) and is being blocked from eliciting context for it.

Johnnie Cochran

AS AN OFFER OF PROOF, THEY INVESTIGATED IN CHICAGO AND THEY FOUND GLASS IN A FACE BASIN OR WHATEVER CONTEXT SHATTERED WITH BLOOD, YOUR HONOR, WITH A TOWEL THEREON.

Cochran reveals the defense theory for the cut finger: OJ cut himself on broken glass in his Chicago hotel room upon hearing of Nicole's death — an alternative to the prosecution's implication the cut occurred during the murders.

Lance A. Ito

AN EXPLANATION GIVES A CONNOTATION.

The judge's succinct ruling on why the question wording matters — 'explanation' implies a statement was made and received, crossing into hearsay territory.

Lance A. Ito

'DID YOU DISCUSS WITH HIM THE CUT ON THE FINGER, YES OR NO.'

The precise question Ito permits — a narrow, gatekeeping formulation that establishes a conversation occurred without eliciting its content.

Evidence (2)

Informal

OJ Simpson's cut finger, examined by the investigator witness

discussed — defense seeks to elicit that OJ gave an explanation for the wound

Informal

Glass found shattered in a Chicago hotel basin, with blood and a towel — offered as proof of how OJ cut his finger

referenced as offer of proof by Cochran; not yet admitted

Notable Exchanges (2)

Marcia Clark•Johnnie Cochran

Clark accuses Cochran of deliberately defying the court's prior hearsay ruling by raising the cut finger explanation in front of the jury without approaching the bench. Cochran fires back that Clark is making 'machinations' and calls her claims 'lies,' while insisting his question was technically not hearsay.

heated

Johnnie Cochran•Lance A. Ito

Cochran presses the judge on whether he reviewed his notes to determine if Clark 'opened the door' on the cut finger issue during redirect. The judge admits he has not had a chance to check. Cochran then asks what question he is actually permitted to ask, and Ito dictates the precise wording.

strategic

Credibility Attacks (1)

⚔ Johnnie Cochran

misconduct allegation

Clark formally asks the court to cite Cochran for misconduct, arguing he knowingly violated the court's hearsay ruling by raising the defendant's statement in front of the jury without first seeking relief from the prior ruling.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5238 • 18 utterances

Criminal Trial

Department 103