Sidebar: witness examination procedures

📄 Sidebar: witness examination procedures — Tuesday, May 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\16\SIDEBAR-WITNESS-EXAMINATION-PR.DOC

TRIAL

▲ Day 75 of 167

◀ Direct examination of Gary Sims (part 4) Direct examination of Gary Sims (part 5) ▶

Date: Tuesday, May 16, 1995 • Utterances: 24

Judge Ito convened a sidebar to limit Harmon's examination of Gary Sims, ruling that going through all 61 DOJ items individually would be cumulative and time-consuming. The attorneys also addressed a procedural concern raised by Cochran about counsel whispering too close to the jury during bench conferences.

# 1 THE COURT:

Let me see counsel at the side bar.

# 2 (The following proceedings were held at the bench:)

# 3 THE COURT:

All right. We are over at the side bar. Mr. Harmon, my recollection is Mr. Sims testified that he had something on the order of 61 items sent to DOJ. Are you proposing to go through each one of these 61?

# 4 MR. HARMON:

Real fast. I've got a list, yeah.

# 5 MR. SCHECK:

I believe he has already testified that he--in each instance where he sampled an item, that he cut it and preserved it for Defense testing, and I think that this is cumulative at this point and it is again another effort to try to draw the implication.

# 6 THE COURT:

I don't think we need to go through each one of these 61 items.

# 7 MR. HARMON:

Can I do it by deduction? Which ones was there nothing left? Real easy, only four or five.

# 8 THE COURT:

Are there any that you completed consumed in the testing?

# 9 MR. HARMON:

Sure.

# 10 THE COURT:

Okay.

# 11 MR. HARMON:

I need to have him give the gross figure and then everybody can subtract.

KEY QUOTE

# 12 THE COURT:

I don't want to sit here through 61 items.

KEY QUOTE

# 13 MR. HARMON:

Okay.

# 14 MR. COCHRAN:

Unrelated matter. When we were over near the bench, and I'm sure it is not intentional, if Miss Clark whispers something to talk, they are so close to the jury, and I ask them to be mindful.

# 15 THE COURT:

I notice.

# 16 MR. COCHRAN:

It is real close. The jurors try to look ahead, but I bet if you ask them they can see you guys talking or whispering. Marcia is talking to you. And so as a matter of form, I think that maybe we should change that procedure. Maybe we should move back from the jurors or whisper in each other's ears.

# 17 THE COURT:

Move on the opposite side, but I also noticed the same thing with Mr. Neufeld, so whispering--

# 18 MS. CLARK:

And Mr. Neufeld's whisper is a great deal louder than mine.

KEY QUOTE

# 19 THE COURT:

Yes, he does. I can hear him right now.

# 20 MR. COCHRAN:

I am trying to point out something and I think we all want to be mindful of that. This is not a criticism.

# 21 MR. HARMON:

Thank you.

# 22 THE COURT:

All right. Let's proceed. Mr. Harmon, we will take a break at 2:30.

# 23 MR. HARMON:

What time?

# 24 MR. COCHRAN:

2:30.

Temperature

procedural

Key Quotes (3)

Lance A. Ito

I don't want to sit here through 61 items.

Judge curtails what could have been an exhaustive line of examination about DNA evidence handling.

Marcia Clark

And Mr. Neufeld's whisper is a great deal louder than mine.

Clark deflects Cochran's concern by pointing the finger at the defense, prompting the judge to agree.

Rockne Harmon

I need to have him give the gross figure and then everybody can subtract.

Harmon proposes a compromise to establish which items were fully consumed without itemizing all 61.

Evidence (2)

Informal

61 items sent to DOJ for testing by Gary Sims

discussed — judge limits itemized examination

Informal

Items fully consumed in DNA testing (4-5 items)

discussed as subset to be identified

Notable Exchanges (2)

Johnnie Cochran•Marcia Clark•Lance A. Ito

Cochran raised concern that counsel whispering near the jury rail could be overheard; Clark fired back that Neufeld whispers louder, and the judge agreed he could hear Neufeld.

light but strategic

Rockne Harmon•Lance A. Ito•Barry Scheck

Scheck argued that going through all 61 items was cumulative; Harmon proposed a shorthand approach; Ito sided with limiting the examination.

procedural

Light Moments (2)

Lance A. Ito

Judge Ito confirms he can hear Neufeld whispering right at that moment, undercutting Clark's attempt to deflect.

Johnnie Cochran

Cochran hastens to clarify his whisper complaint is 'not a criticism,' drawing a polite 'Thank you' from Harmon.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 6075 • 24 utterances

Criminal Trial

Department 103