Sidebar: speculation objection

📄 Sidebar: speculation objection — Thursday, March 9, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAR\9\SIDEBAR-SPECULATION-OBJECTION.DOC

TRIAL

▲ Day 34 of 167

◀ Redirect examination of Tom Lange (part 1) Redirect examination of Tom Lange (part 2) ▶

Date: Thursday, March 9, 1995 • Utterances: 17

During the civil trial, the defense objected to a prosecution question as speculation regarding what difference coroner's procedures would have made on time-of-death estimates. Judge Ito sustained the objection, explaining it was both speculative and overly broad, then offered guidance on how to narrow the question. The sidebar ended with Cochran clarifying the court's preferred objection protocol.

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

# 2 THE COURT:

IT WAS CLOSE. IT WAS CLOSE.

# 3 MR. DARDEN:

SPEAKING OBJECTION.

# 4 MR. COCHRAN:

MY CLIENT, MY CLIENT WAS VERY HELPFUL TO ME. HE WAS TALKING TO ME. HE REMINDED ME. IT WAS HER THING, BUT OKAY.

# 5 THE COURT:

I SUSTAINED THE OBJECTION AS SPECULATION.

# 6 MS. CLARK:

ALL RIGHT.

# 7 THE COURT:

DO YOU WANT TO BE HEARD?

# 8 MS. CLARK:

YES. WE HAVE NOW GONE EXTENSIVELY INTO THIS WITNESS' EXPERIENCE IN ESTIMATING TIME OF DEATH AND THE FACTORS HE RELIES UPON IN ESTIMATING TIME OF DEATH. HE OBVIOUSLY HAS CONDUCTED A GREAT DEAL OF INVESTIGATION TO NARROW THAT TIME FRAME AND TO LOOK AT THE FACTORS THAT HE RELIED UPON IN THIS CASE TO GET TO A CERTAIN RANGE. IT OBVIOUSLY IS NOT SPECULATION FOR HIM TO SAY WHETHER OR NOT THERE WOULD HAVE BEEN A DIFFERENCE BASED ON HIS EXPERIENCE AND TRAINING AND ALL THE FOUNDATION THAT HAS BEEN LAID.

# 9 THE COURT:

I SUSTAINED THE OBJECTION BECAUSE I THINK IT IS SPECULATION AND I THINK IT IS ALSO OVERLY BROAD, BECAUSE YOU KNOW, THE CORONER DOES A WHOLE NUMBER OF DIFFERENT THINGS, THE CORONER'S INVESTIGATIONS. YOU KNOW, AS WE HAVE DISCUSSED, THEY CHECK THE LEVEL OF LIVIDITY, THEY CHECK THE EXTENT OF THE RIGOR MORTIS, THEY CHECK THE LIVER TEMPERATURE. I THINK ABOUT THE ONLY LEGITIMATE QUESTION THAT YOU CAN ASK THAT WOULDN'T BE SPECULATION IS HAD THE CORONER'S OFFICE TAKEN A LIVER TEMPERATURE, YOU KNOW, RIGHT THERE AT TWELVE MIDNIGHT, WOULD THAT HAVE HELPED YOU ANY? THAT IS ABOUT THE CLOSEST YOU ARE GOING TO GET, BUT TO ASK A BROAD QUESTION --

# 10 MR. COCHRAN:

THANK YOU, YOUR HONOR.

# 11 THE COURT:

-- AS BROAD AS IT WAS IT REALLY CALLS -- BECAUSE WE DON'T KNOW WHAT HE IS CONSIDERING.

# 12 MR. COCHRAN:

JUDGE, CAN I ASK ONE OTHER THING?

# 13 MS. CLARK:

PERHAPS WHAT I SHOULD DO IS ASK A PRELIMINARILY QUESTION ABOUT WHAT FACTORS HE TOOK INTO CONSIDERATION.

# 14 THE COURT:

LET ME MAKE IT CLEAR. I AM NOT TRYING TO HELP ONE SIDE OR THE OTHER HERE AS I GIVE HINTS TO BOTH SIDES. I JUST WANT TO GET THIS OVER WITH SOMETIME THIS LIFETIME.

# 15 MR. COCHRAN:

I AGREE JUDGE. CAN I ASK YOU A QUESTION? YOU WANT US TO INDICATE "OBJECTION" AND THEN WE ARE NOT ARGUING. YOU WANT US TO INDICATE THE GROUNDS IMMEDIATELY AND THEN WAIT FOR A RULING AND IF WE WANT TO APPROACH AT THAT POINT, BECAUSE I DON'T WANT TO APPROACH IF I DON'T HAVE TO, SO I WANT TO SPELL IT OUT. THE OBJECTION AND THE GROUND AND THAT IS IT?

# 16 THE COURT:

THAT IS IT.

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

Temperature

procedural

Key Quotes (3)

Lance A. Ito

I AM NOT TRYING TO HELP ONE SIDE OR THE OTHER HERE AS I GIVE HINTS TO BOTH SIDES. I JUST WANT TO GET THIS OVER WITH SOMETIME THIS LIFETIME.

Ito's characteristic impatience on full display — he frames his evidentiary guidance as purely efficiency-driven, not favoritism.

Lance A. Ito

I THINK ABOUT THE ONLY LEGITIMATE QUESTION THAT YOU CAN ASK THAT WOULDN'T BE SPECULATION IS HAD THE CORONER'S OFFICE TAKEN A LIVER TEMPERATURE, YOU KNOW, RIGHT THERE AT TWELVE MIDNIGHT, WOULD THAT HAVE HELPED YOU ANY?

Judge essentially rewrites the question for the prosecution, narrowing it to liver temperature as the one non-speculative avenue.

Marcia Clark

IT OBVIOUSLY IS NOT SPECULATION FOR HIM TO SAY WHETHER OR NOT THERE WOULD HAVE BEEN A DIFFERENCE BASED ON HIS EXPERIENCE AND TRAINING AND ALL THE FOUNDATION THAT HAS BEEN LAID.

Clark argues the expert's training and prior foundation testimony qualifies him to answer — Ito disagrees due to the question's breadth.

Evidence (1)

Informal

Coroner's time-of-death investigation procedures: lividity, rigor mortis, liver temperature

discussed as basis for scoping a proper expert opinion question

Notable Exchanges (2)

Lance A. Ito•Marcia Clark

Clark argues the foundation has been laid for the expert to opine; Ito sustains the objection anyway, citing the question's overbreadth across multiple coroner procedures, and steers her toward a liver-temperature-specific question.

strategic

Lance A. Ito•Johnnie Cochran

Cochran asks Ito to clarify the preferred objection protocol — state the ground immediately, no argument, wait for a ruling, then request to approach if needed.

procedural

Light Moments (1)

Lance A. Ito

Ito quips he just wants to get the trial done 'sometime this lifetime,' drawing on his well-known impatience with the pace of the proceedings.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5225 • 17 utterances

Criminal Trial

Department 103