All right. Good morning, counsel. Back on the record in the Simpson matter. Defendant is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, People represented by Miss Clark, Mr. Darden, Mr. Harmon. The jury is not present. All right. Mr. Scheck, you are about to begin your cross-examination of Mr. Yamauchi. And we had had a discussion I believe it was yesterday where we discussed the timing of the 356 issue, and it was my recollection that I indicated I was--I thought this was at this point premature since it was not going--this is not the witness to introduce any statement to the police officers, Detectives Vannatter and Lange, and you seem to take a contrary opinion as to how that might come in through this witness.
Yes, your Honor. I--there--it--it would be our preference to resolve this issue before I get into the cross-examination, particularly since I think in some of the early stages of the cross-examination, I'm going to go into the events of June 14th and 15th. And as the Court recalls, Mr. Harmon went into some details about what Mr. Fung told Mr. Yamauchi before the testing began and indicates in his notes details such as Mr. Simpson had a cut on his left hand, he explained the evidence to him. His notes even indicate that this information came, quote, unquote, via robbery-homicide. Detective Lange was in the SID laboratory that morning discussing matters with Mr. Matheson, Mr. Yamauchi and Mr. Fung, and there are many areas there that have relevance to what evidence items were processed in what order, what should have been known, what was known that would call upon my right to confront them with doors that have already been opened just in terms of the hearsay with details of statements that Mr. Simpson made to the police before this analysis began. What the analysts knew, what the police officers knew and when they knew it is relevant in terms of what they tested, when they tested it and how they tested it.
And when they tested it. Yes. Thank you. So--and then of course, just even getting into this whole statement that Mr. Yamauchi made and what his state of mind was and what the state--what the express state of minds of other people in the lab were at the time of this analysis I think is all relevant and fair game given the nature of the direct examination.
All right. Mr. Scheck, so I understand what it is you're urging me to do here, you indicate, one, you want to go into Mr. Yamauchi's notations in his lab notes regarding a cut on Mr. Simpson's hand, and what else?
And what else? What he was told by Mr. Fung, by Mr. Matheson, by Detective Lange that morning with respect to this evidence, when it was collected, how it was collected and whether it should be tested, which is what they went into. There's technical issues in terms of separating samples of high and low DNA content, which samples of blood they had expectations, they knew were definitely Mr. Simpson's and which ones were ostensibly not known. All those issues I think are relevant here. And I think we even broached this at one point earlier when I attempted to get into this issue--I'm trying to remember--with one of the other earlier witnesses in terms of what they--item no. 12 that was collected at the house and those swatches, that they were collected at the end of the day, that they would be--clearly, they would have high DNA content and what people knew about that and what had been said about that, whether or not that was Mr. Simpson's blood. And we had a sidebar and Mr. Harmon actually indicated--I indicated to you--if you recall, I approached the bench and I said, "I want to ask some questions now that would arguably be based upon statements that Mr. Simpson made to the police where they would have the implication of indicating that that would be revealed." If you recall, I approached the bench because I knew that that might be a potential problem given the way I asked the question.
And you--at that time, Mr. Harmon actually said, "Well, we'll get into this with Mr. Yamauchi, but not through this witness." I think it was at one point during the cross-examination of Mr. Sims. And we did in fact get into it with Mr. Yamauchi, and I think it is abundantly clear and I'm sure Mr. Harmon will confirm at the point that he began to get into this hearsay concerning what Dennis Fung told Mr. Yamauchi about this investigation, initially I made a hearsay objection. Then the Court instructed me to talk with Mr. Harmon because I indicated maybe I wouldn't have objections to some of these statements coming in. And we conferred and Mr. Harmon showed me what he was intending to elicit from Mr. Yamauchi and he showed me this statement about air-tight alibi, and I'm sure he won't deny it, and I took one look at that and I said, "Well, go right ahead," because I knew fair well where they were going and I thought it was going to open the door, and I knew that if they went down that road, that I would be able to go down that road too. And that's exactly what's occurred. So it seems to me that I have all these relevant avenues that I can pursue. And then let's say that--I believe they've opened the door and I'm not the one that's going to argue that issue. But if there's some kind of question as to what they've opened and what they haven't opened or how far one can go, I've got to know that before I start cross-examining this witness in terms of how I probe his state of mind given what they've elicited. So this seems to me an issue that has to be resolved before we cross-examine this witness.
Your Honor, are we addressing only the matter as to whether or not we're going to address this now? Is that--are we confined to that?
Thank you. First of all, with respect to the matters that Mr. Scheck would like to get into, this reminds me of the staple holes argument. What we have is a simple little reference in Collin's work sheet saying Dennis Fung told him that the Defendant had a cut on his left hand. From this, Mr. Scheck amplifies, greater than any PCR amplification I've ever heard about, detailed conversations between Dennis Fung and Mr. Yamauchi, detailed conversations between Greg Matheson and Phil Vannatter and Mr. Yamauchi, detailed conversations between Philip Vannatter and Mr. Yamauchi, none of which ever occurred. This is the active and very fertile imagination of Mr. Scheck. We have one simple note. There will not be a showing that there were these detailed conversations. It simply didn't happen. Now--so with respect to all of these questions that Mr. Scheck proposes to ask, they would be inappropriate and they will be met with no, no, no, no and no. And that's fine. But once again, what we have here is the author of a staple holes argument and I think that we ought not to ignore it. With respect to the 356--
Right. And I don't see anything objectionable with that. I'm not even saying it's objectionable for counsel to inquire as to what the state of this witness' knowledge was. I'm only commenting that his answers--his questions will be met with, "I don't know, no, no and no, that never occurred," because this witness did not have all this detailed information. And that does dovetail into the 356. So I'm not saying that those questions are objectionable. He wants to inquire into the witness' state of mind, and we have certainly opened the door to that with respect to what his bias is and what his state of knowledge is, and I think that's relevant.
So no problem with that. I'm simply commenting on the state of what the evidence is and will be, and that's another matter. With respect to 356, the arguments postured by counsel in their moving papers totally mischaracterizes the witness' statement. And this is the fundamental flaw in all of their arguments. Even the case authority that counsel cites in their moving papers is totally in apposite and actually refutes their very argument. For 356 to apply--and I've done some extensive research on this for previous cases as well as the instant one, and the Court probably knows about that. But it is important to realize that the gravamen of 356 is to make all of it come into context. It's important that you balance--when one person offers part of a statement, that that part of a statement must be balanced with the rest of the statement in order to give it meaning so that it's not misleading. And that is the gravamen of 356, which is why you see it applied in a situation where the Defense wants to proffer--and we cited that case I believe in our moving papers--the Defense proffers one portion of a Defendant's statement, for example, where he says in a deuce case, "I stopped at the red light," but then goes on to say, "But I ran--I ran three red lights before that," when it comes to probable cause to stop him. Well, wait a minute. You can't just introduce that part of the statement where it seems to indicate that there's no probable when the previous part of the statement indicated there was plenty of it. And that's the bottom line of 356. It's really a logical common sense sort of thing. In this case, what we have--and it's very interesting because counsel wants to posture that somehow the witness' conclusion about whether or not the Defendant could have done it impact on his credibility is ludicrous. Number one, the witness could not have known of his statement because that had not been publicly disseminated. And we will inquire--and we actually should I think in a 402 outside the presence of the jury or in their presence. I'd like to frankly ask leave of the Court to reopen direct to elicit the fact that his information came solely from the news program period. Outside the presence of the jury, we can make it clear for the record that he had no knowledge of any statement given or taken by the police from the Defendant. So what he's premising that statement on is the fact that the news published that Mr. Simpson was contacted by the police in Chicago. From that, he drew the conclusion, okay, he couldn't have done it. Well, I'm sure there's millions of Americans who agreed with him and I think even Mr. Weitzman was under that impression at the time because no one knew what he really said. So the conclusions that were drawn were drawn based on the fact that it was publicized that he was contacted in Chicago. That doesn't implicate any statement. The witness himself made no mention or reference to any statement by the Defendant nor could he because he didn't know about any statement made by the Defendant. So we have Defense posturing a 356 issue in an impossible situation where not only is he not making reference to part of his statement, but he never knew a statement existed. So how could we possibly have a 356? Moreover, as the Court is now aware--and I know the Court did not know this because the Court had not read the statement at the time that this issue arose in Court--the statement itself never states that he had an air-tight alibi or any mention of alibi at all. There was no discussion of alibi per se in the Defendant's statement. So by definition, the witness could not be referring to any statement made by the Defense--by the Defendant because such a statement was never made by the Defendant at all. So I mean, we have an impossibility on an impossibility on an impossibility. None of this ever occurred. The witness couldn't have been referring to that statement, never having known of it. And even if he had, the statement would not include--did not include that. So it still couldn't be referenced to that statement. You see how absurd this gets now that the Court is aware of this statement, which it wasn't I know before. Now, any possible damage that the Defense claims to have suffered by the fact that there was a reference to the witness' conclusion about the Defendant's having an air-tight alibi--I mean this makes me laugh just saying it because it is so ridiculous. But the witness' reference to his belief in the air-tight alibi of the Defendant, if there can be deemed any possible damage to the Defendant from that, can simply be cured by asking the witness what he based his belief on. And the witness will state--I will tell the Court because I know, the witness will state he based it on his belief because--that the news program aired that he was contacted in Chicago. His conclusion. "No other information?" "No, ma'am. No other information." That's it. So there is no--there's nothing that touches the Defendant in this witness' testimony, nothing that it even begins to draw in any reference to a statement or knowledge of a statement. And it should also be brought out I think the Defense--and it's a very disingenuous argument really. The Defense postures that the Defendant is harmed or damaged by the witness' reference, which even if you were to accept the illogical and absurd characterization of the witness' testimony in that way, you would know that there is no damage. It has already been brought out by witnesses that the Defendant told Allan Park he was asleep, that he had just gotten out of the shower, and all of the testimony thus far has indicated everything consistent with that. That is--and there's been no claim by anyone at any time that the Defendant ever said anything to the contrary. So we don't really--there is no real harm to the Defendant at all. This is simply an excuse, it's a ruse by the Defense to put in a statement that we cannot cross-examine, to let the Defendant avoid ever taking the witness stand so that he cannot be cross-examined. We welcome the airing of this statement. We invite the airing of this statement when the Defendant takes the witness stand and we can question him fully about the statement. We have a lot of questions we want to pose to the Defendant about this statement and we eagerly await that opportunity. But the Defense would like to preclude us from the ability to cross-examine. And so they would like to force us to present this statement that we cannot cross-examine. We will impeach it, but we cannot cross-examine it thoroughly the way we would like to do and we should be able to do when Mr. Simpson takes the witness stand. So this is nothing more than a pretext to avoid the Defendant taking the witness stand. There is no door opened by this witness' statement. May I have a moment, your Honor?
In the absence of any showing that--I mean Mr. Yamauchi's statement stands as it stands before the jury; and that is that he watched a news program, he heard that the Defendant was in Chicago and believed he had an air-tight alibi and that Mr. Yamauchi knew of no statement. I think that if the Court has any concern in that regard, we should have a 402 outside the presence of the jury. But the statement of the witness does not in any way implicate the statement of the Defendant because he did not know that one existed.
Do you think your factual record is adequate to support that conclusion at this point? And--because the term "Alibi" has a certain connotation to it within the criminal context.
I understand. This witness was certainly not I think intending to convey that. He's a layperson for all intents and purposes, but--
The problem is that he is a member or an employee of the city of Los Angeles assigned to SID, which is within the Los Angeles Police Department. It's not beyond probability that he might have been privy to a detective's conversation regarding any statements made by the Defendant.
And I think that that--the impression needs to be dispelled and--and that's right, your Honor. You're absolutely right.
But the other concern I have is that I don't know anything factually. As I indicated to you, this statement by Mr. Simpson has never come before the Court. There's been no litigation that's been necessary as far as the statement is concerned. So this Court has no idea when and where, what was said other than now I have the transcript, and I don't know the circumstances as to whether or not it's been publicly disseminated, whether or not the transcript's been available. I mean, none of that has come before the Court. So there's nothing in the record that I can make any factual assumptions or conclusions from.
We can certainly present that factually to the Court in order to complete the record. The statement made by the Defendant was not publicly aired until--
I mean, the contents of the statement--I'm sorry. I'm conferring with counsel now. But I think the contents of the statement itself did not come out until a tabloid published it a couple months ago. The fact that a statement was taken was made public--
In any case, I can certainly represent this to the Court with great certainty. That as of the date of 6-14, June 14th, when Mr. Yamauchi was doing the testing, there was no public dissemination of the fact that a statement was taken. There was--it was known that there was a visit to Parker Center and that's all. The fact that a statement was taken or the contents of that statement did not come out for quite some time--until quite some time after that. So--and the only thing relevant here is Mr. Yamauchi's state of mind at the time of the testing on June 14th and 15th. With respect to what he might have known or learned from Detective Vannatter, we can complete the record by indicating outside the presence of the jury that he did not know any such thing. But I would urge the Court to consider this. At this point in time, this witness has not indicated any special knowledge to the jury, any insider information to the jury or any privy con--any conversations he was privy to that would allow him to know things the public did not know. In fact, very distinctly he said in front of the jury, "I saw it on TV." So what he had was what the public had and he drew his conclusion from that as I'm sure many members of the public did until they learned all of the facts or more of the facts. So at this point in time, what the jury knows is that he watched a television program. It could be made clearer and I'm asking leave of the Court because the Court is correct--the Court makes a very good point, that it could be made clearer to the jury, and which is why I would like to reopen direct, to simply ask him what he based that conclusion on. And that answer will be, "The news program I saw." "You had no conversations with detectives. You had no further," et cetera, et cetera. And I think that can be made crystal clear and I'd like the opportunity to do that. But in conclusion, your Honor, at this point, until we hear from the Defense, I think that 356 is totally inapplicable. Even the cases they cite are not support for their proposition.
He was addressing the other thing, not the 356. Different questions. He told you during the time that he would not be arguing that, your Honor. Thank you, your Honor. Good morning, your Honor.
Your Honor, in this matter, if the Court pleases, with regard to the 356 argument, I would point out--and I would like to go back just briefly and again remind the Court how we got to this particular point. This isn't anything the Defense did. This was a calculated move on the part of the Prosecution, your Honor. In fact, Mr. Harmon had it in his notes which Mr. Scheck saw, "Air-tight alibi." This was planned and orchestrated as is all the testimony with their witnesses, and he referred to his notes and he did this. The Court will recall there were a number of objections as we went along, and the Court felt that what would be the answer--a representation was made at sidebar as to what the answer would be, and we got into this. And let me just quote for the Court just briefly what the testimony was. Let's talk about what the testimony was before this jury. "Like I was saying"--this is Mr. Yamauchi--"I heard on the news, well, yeah, he's got an air-tight alibi. He's in Chicago and, you know, that--and it's his ex-wife and this and that and oh--and I go, oh, well, he's probably not related to the scene." Now, this is after the objections and after carefully scripted, the testimony, that he gave this particular testimony, your Honor. And what we've contended and strongly contend, your Honor: "The presentation of this kind of detached declaration, as we spell out, permits the admissions of certainly those portions of the Defendant's statement to the police on the same subject of his alibi--" and you hit upon it. The key word is "Alibi." "--which are necessary to make this detached declaration understood pursuant to California code--evidence code section 356." And the Court knows what that section goes on, and we talk about that.
"We think this testimony clearly then opens the door to that part of the testimony to explain the fact remains that we have these words, an `air-tight alibi' that's attributed to the Defendant, he's got an air-tight alibi." And in our brief, we spell out to the Court that: "The jury is now left with this misleading interpretation." And there are constitutional issues here as we point out also, your Honor. Is this statement--by them doing this, are they trying to force Mr. Simpson to take the stand in contravention to his fifth amendment rights? Miss Clark says that, "We welcome this opportunity." Well, they may very well get that opportunity, but they can't force it. It's because he wants to get up here, if he does, and tell the world that he's innocent. That's the test. They can't force it on these circumstances. And this jury, through some calculation, cannot be left with this impression. And that's why we had the colloquy at the bench. And when Mr. Scheck said to your Honor, "No, we don't want you just to strike this. They have opened the door," and the Court said, "I basically agree. They had opened the door at that point." So the question is, how do we then remedy this? Your Honor, throughout this case, we have heard that this is the search for truth. And you remind us of that and both sides have said this. If we want to get at the truth, then let's air this statement, which we have a right to do we think under 356. And I would cite to the Court again to our brief where we talk about this. "An important purpose of the principles underlying section 356, your Honor, and other related provisions of the California evidence code deal with to prevent the Prosecution from unfairly and unconstitutionally exploiting a half truthful, partial statement taken out of context by improperly and unconstitutionally shifting the burden of proof onto the Defendant by pressuring him or her to take the stand, to come forward with evidence in order to explain a statement taken out of context." And that's what we have. And you posed the question about the record. They've created this problem, your Honor. They've opened the door. They can't then be able to just try to straighten it all out at this point. They've opened this. And there is a statement. And I would like to point out to the Court something else about this. Collin Yamauchi is here as an expert. Otherwise, he couldn't watch television, he couldn't sit and do all these things. Now they want to make him, well, he's kind of a lay witness. It's funny how witnesses keep changing. He is an expert witness. He's employed by the Los Angeles Police Department. He's employed in the Special Investigations Division.
And further, your Honor, you'll recall from the testimony of Detective Lange that with regard to the events of 6-13, in my memory, is this on the subject. Everybody knew that Mr. Simpson went downtown to give a statement because the press followed him. The Court will recall that Howard Weitzman--and you've seen those tapes. They got into cars, they went downtown. Mr. Simpson was there for two or three hours according to the officers if you recall. Everybody knew there was a statement. But further, your Honor--and remember the testimony of Detective Lange. The very next morning--and you see his notes--there was a meeting at 7:00 o'clock in the morning. Remember when Lange brought those tennis shoes back over there? And Lange's notes says he conferred with criminalist Matheson, Wong--you remember--there was no Wong because he got it wrong, but we talked about that, you and I--and Yamauchi re the evidence. And I presume that meant Fung at that time. And then later on, there was a further conversation with Fung and Matheson where they talked about all of this. Lange talked to them. And Yamauchi's testimony will be that.
So he's an agent. They knew he knew what had taken place. It wasn't like he was listening to any news. This is an inside person. They had Mr. Simpson's statement and this whole thing about his alleged cut finger. So this was calculated, your Honor. It's part of their strategy. And this is directly why we have 356 of the evidence code. And there are fortunately some safeguards to protect the rights of both parties in this case left, in this state left. And so it seems to me that if you consider all these things, this surely violates Mr. Simpson's rights under both the fifth amendment of the U.S. Constitution and its California cognate. There's no less adverse comments by a Prosecutor about a Defendant's refusal to take the stand like in Griffen. I mean, they--she says--Miss Clark gets up here and says, "We're welcoming." They're trying to force him to take the stand. That's exactly the issue when Mr. Harmon cleverly calculates this air-tight alibi thing. And you asked him, "What's his answer going to be?" And the answer went further than what we were represented at sidebar. And you'll recall that so much so, you felt the need to strike it at the point. But we said, "Wait a minute. They've done this now. Our jury's sitting here listening to that." So they can't now come in and say, "Oh, gee, you know, the Defense complains about this." What we've got to do now, your Honor, is put this in context and look and see how we got to this point. And we need not be naive about this. Everybody knew Mr. Simpson went down to Parker Center. Everybody knew about this statement. And certainly, your Honor, you said you didn't know about the content. That statement is--part of that statement has been leaked from the very beginning and more recently, in the last several months, a tabloid show has had the entire statement. The entire tape is out there. But certainly, the police knew about that statement because they were there. Lange and Vannatter were there. They knew totally about that statement by the time they met with Collin Yamauchi at 7:00 o'clock that morning when they were making decisions about what to do, your Honor. That's--you think they didn't talk about it? Lange's notes say that. And the Court will recall when I questioned Lange about it, he said, "Well, I thought Mr. Simpson was less than forthcoming." Remember the use of those words? They talked about it right at that very morning when he brought those tennis shoes over there and Yamauchi then had his marching orders as to which evidence to go and look at. And so when they make this calculated decision under 356--and I would end on this note. 356 seeks to preserve fair play, your Honor, and misleading impressions which have been created by the Prosecution. When they use those words, "He's got an air-tight alibi," without further explanation, the Defendant's at a decided disadvantage, and it's unfair seeing that it's nothing that we did that put him in this position. So we have to correct that. How do we correct that? Through the appropriate admission of those parts of his statement which clearly they were referring to. This isn't like somebody who just off the street who talks about heard something from the press. This is a member of the Prosecution team, your Honor. And that's what we have here. And so we do cite cases which we do think are illustrative of the Court in that regard. So as I conclude, I think that fundamental principals of fair play, your Honor, require you, as you've indicated, to correct this situation. The only way we correct the situation is by having the statement.
And certainly if the Prosecution's so worried about this, the admission of this statement doesn't mean Mr. Simpson is not going to testify. It has nothing to do with that. But we certainly can't be forced into a position. They're always worried about what we're going to do, your Honor. They should be worrying about what they did to create this situation. And so I think that's the situation. And I would respectfully urge the Court, as you've indicated, they have opened this door, they've opened this door very wide, and we have a--we have an opportunity it seems to me only to correct this by the admission of the applicable sections of the statement of Mr. Simpson. It's been now widely, widely disseminated. And so I would ask the Court to do that. I think that's the purpose of 356. If the Court has any questions, I would be glad to try to answer them.
Well, I think that the factual record, as I--is certainly not a fair one to the Defendant. We're left with a police witness saying, "I think he's got an air-tight alibi." And he says, "I hear this on the news," or wherever. He hears this on the news, but he also talks to Lange, he talks to Matheson, he talks to everybody. So I mean the factual record needs to be cleared up. And the only way that can be cleared up is by admitting the appropriate portions of that statement. Otherwise, Judge, what you do is you force it on us. We're left with--even if he comes in and says, "Well, I only listened to the news," we're still left over here with this jury thinking, well, gee, Mr. Simpson said he was in Chicago at the time of these killings. That's not what he said at all. That would be totally, totally unfair and violates his fifth amendment rights, violates the constitution and it flies in the face of the whole concept of Griffen if the Prosecution is allowed to comment upon a Defendant's failure or lack to testify. And so I think clearly, your Honor, the record is clear that it--the record is unclear and needs to be made clear, and that's what 356 addresses; that when you have this unfair situation, you have to correct it.
All right. Mr. Cochran, assume arguendo that I find the basis of Mr. Yamauchi's comments not to have been Mr. Simpson's statement. Do you think a limiting instruction that his last comment regarding air-tight alibi being in Chicago is limited to--limited in its use only to being relevant only to Yamauchi's state of mind?
I don't think so, your Honor. I don't think so at all. I think that gives them--your Honor, they created this situation, and I don't think that's fair to the Defendant, to give a limiting instruction for something they shouldn't have done in the first place. I think they opened the door and I think where there is this statement, your Honor, where there is this statement, we should have a right to introduce certainly the applicable portions of the statement. You've now seen the statement, and there are certain portions that I think are very relevant. Because otherwise, the jury will still be left with this statement. There's been a day and a half now since he's made this dramatic statement, "Well, I thought he had this air-tight alibi." And look at what you were told, your Honor. You were told that the reason why Mr. Harmon, who is a seasoned, experienced and wiley Prosecutor as we well know, we've seen him in action, and he of the discourse and funny words and all that sort of thing, this man went about--he told you, "We're doing this to combat examiner bias." And then he asked the witness who hardly knew what examiner bias was. So, I mean, you know--basically, this was part of a plan, and their plan is to try to force Mr. Simpson to testify. That's unfair. They can't shift that burden. And so we don't let them off the hook that easily, your Honor, by saying, well, let's just cure this. Well, your Honor was willing to strike the very thing. We said, look, that doesn't cure it, to go strike it from the jurors' minds. They heard this. It was calculated. Sometimes people have to pay for their course of conduct, your Honor, and they have to pay at this point. And the payment is, if they're so worried about--if this is a search for truth, your Honor, why not let this statement in? They want a search for truth, let's have all the testimony come out. That's all we're saying. Let's have this real search for truth. And I challenge them, let this statement come in. They want a search for truth? Let's have the statement come in. Let's clear up the record. Let's make it fair to Mr. Simpson. We want to have a fair trial and a search for truth. May I have just a second, your Honor?
I'm reminded by Mr. Scheck, your Honor, that to give such a limiting instruction would really fly in the face of the facts because, Judge, we would have to be extremely naive to consider that when Lange met with Matheson, Fung and Yamauchi at 7:00 o'clock--and the Court--and the status of the record is, there was then a subsequent meeting with Matheson and Yamauchi and there was then a third meeting with Fung and Yamauchi. Your Honor, they were talking about the facts of this case and they had the detective there from robbery-homicide who told them what had taken place. And that's why, if you look at his notes, it doesn't take a genius to figure this out, that they were talking obviously about this case and what Mr. Simpson had said in seeking to try and disprove that. And so it doesn't--you know, to just say, well, he heard this on the news, your Honor, I think that would be patently naive under the circumstances and very, very unfair again to Mr. Simpson. It won't cure it, your Honor, is what the situation is and when you consider this entire record. And sure he may say, no, no, no. But that doesn't mean we have to accept that. Nobody's bound to accept any official version. Truth doesn't just emanate from that side of the table. And so we have to look at what's reasonable under the circumstances, your Honor. And as you pointed out, this man is one of their experts. They've saved him for dramatic effect until the very end. They're counting on his testimony. And they made a calculated decision, your Honor, and they should not then be allowed to shift the burden over to Mr. Simpson. And I think the factual record sets that forth and I would respectfully urge the Court to allow us to produce the appropriate parts of that statement. You've now seen it and I think this record--that's the way to cure and clear up this record, your Honor.
The factual basis--the record that we have before us--actually, when Mr. Cochran read that to the Court, I think that says it all. He makes no reference to any statement. All he says, he saw--he's questioned as to whether or not he's been watching--he had been watching television in the case, and he does--I think it's interesting. Mr. Cochran said he doesn't understand the term "Examiner bias." We all know the issue is bias. The issue is this witness' state of mind. This witness is there to talk about science. He's there to talk about testing. The Defense has raised conspiracy and bias theories. We're entitled to refute those with the fact that this witness expected everything to come out negative to exclude Mr. Simpson. And in fact, as a personal aside, I would tell the Court he was a fan of Mr. Simpson's and hoped to exclude him. So I mean it's even more than the Defense realizes. But that to the side, what he said and what the jury has heard--and this is what's important here--is that, "Well, on the 13th, the last thing I heard in the evening"--objection, objection. "I heard on the news--like I was saying, I heard on the news, well, yeah, he's got an air-tight alibi. He's in Chicago and, you know, that--and it's his ex-wife and this and that, and I go, oh, well, he's probably not related to the scene." "I heard on the news." All he could have heard on the news is that Mr. Simpson was contacted in Chicago. It was known that he went to Parker Center. It was not known that he made a statement to the police.
Okay. So we don't have that factually speaking. We have a record that simply indicates that this witness saw a newscast and made a conclusion based on the newscast. That is the record that we have. Could it be made clearer? It could. I agree with that. But under 356, your Honor, only those portions of conversation that Yamauchi talked about are admissible. He talked about a newscast and a newscast that made no reference to his statement. And an alibi is something that everybody talks about--I mean, it's a layperson's term now and it's not necessarily a statement about what you say about where you were or it could be what someone else says about where you were. If I say Mr. Harmon was at the grocery store the other night and so he was not in the office and could not have had a conversation with someone in the office, I have given him an alibi. And it's not premised on anything he said. It's premised on my observation he was at the grocery store. I mean, there's no logical implication of a statement made by the Defendant. And the problem with counsel's argument is that it confuses and distorts the facts and the truth. Mr. Harmon's calculated move was to--
Okay. The only thing we addressed was bias. That was the whole issue. And the alibi issue has been a matter that the Defense has injected into this case from day one. This witness talked about a newscast. That's all he knew. If the record could be made clearer, then I think perhaps it should be and we would ask leave of the Court to reopen on direct to make that very clear. But a limiting instruction would be exactly appropriate, because that is in fact the only reason it's offered. It's not offered for any--obviously for any truth of the matter. Quite the contrary. We're offering it to show this witness' state of mind. And if the jury is informed this witness drew a conclusion based on the newscast that the Defendant was contacted in Chicago and it's limited to his state of mind and nothing more, I think that any possible, any possible harm the Defense claims--and I certainly don't see that--the logic in that argument. But if there is any, it will be dispelled by such a limiting instruction completely and totally.
Counsel admits now the calculated nature of this move, and that's what I was trying to argue. But I would just point out to the Court on this factual basis again, the information regarding the cut on the middle finger of Mr. Simpson's left hand had to have come from the detectives, your Honor. That was not in the press. Remember those pictures? You saw the pictures taken. It had to have come--and that further buttresses what we're saying. This is not just limited to some factual determination about the news. It had to have come from Lange or someone--or Vannatter. And it was Lange because he was the one present, your Honor. So I would ask the Court to consider that when you start talking about, you know, just a limiting instruction. That lets them off far too cheaply and it's very unfair to us and leaves us with trying to explain some things we shouldn't have to explain, your Honor. That's all I wanted to point out.
And another thing I might point out, it says via--by Mr. Scheck--via robbery-homicide--and I suppose we can find that and let your Honor know that about this cut finger. And when I say via robbery-homicide, they're talking about Lange undoubtedly.
All right. But that has not been elicited by the Prosecution at this point. All right. The Prosecution--I'm sorry.
As I recall, your Honor, there was testimony by Mr. Yamauchi about the cut finger. I think the Court will recall that. I think that he mentioned that, but that's an indication--
But, your Honor, but he knew that information also, isn't it--I mean, shouldn't we--
No, no, no. Wait. The whole issue was Mr. Yamauchi's statement regarding alibi. That's the only thing I'm focusing on right now. We're not--we're not turning this into a discussion about the cut finger.
No. I understand that, your Honor. The only reason I was pointing that out--it becomes very instructive to the Court to know--
Well, is it, your Honor? Doesn't it go to the fact whether he knew this from the news or knew this from robbery-homicide?
All right. Prosecution request to reopen is denied. I don't find that the statement by Mr. Yamauchi in that last statement directly refers to any statement made by Mr. Simpson to Detective Lange and Vannatter. All right. Let's have the jurors.
KEY QUOTEThis reminds me of the staple holes argument. What we have is a simple little reference in Collin's work sheet saying Dennis Fung told him that the Defendant had a cut on his left hand. From this, Mr. Scheck amplifies, greater than any PCR amplification I've ever heard about, detailed conversations between Dennis Fung and Mr. Yamauchi.
Sometimes people have to pay for their course of conduct, your Honor, and they have to pay at this point. And the payment is, if they're so worried about — if this is a search for truth, your Honor, why not let this statement in?
It's not beyond probability that he might have been privy to a detective's conversation regarding any statements made by the Defendant.
This is simply an excuse, it's a ruse by the Defense to put in a statement that we cannot cross-examine, to let the Defendant avoid ever taking the witness stand so that he cannot be cross-examined. We welcome the airing of this statement.
Prosecution request to reopen is denied. I don't find that the statement by Mr. Yamauchi in that last statement directly refers to any statement made by Mr. Simpson to Detective Lange and Vannatter.