No. Actually, why don't we take the time, while we are waiting for Mr. Goldberg to arrive, why don't we at least view the proposed videotape, because we are going to do that anyway.

Right.

All right. Do you have it? Miss Martinez, do you have that?

All right. We will mark this People's next in order, 615.

Are you offering an instruction with this, Miss Clark?

Are you offering an instruction?

I'm sorry, your Honor?

Are you offering a limiting instruction with this?

Yes. And that is why Mr. Goldberg is coming down. It is an instruction that limits its use for impeachment, not for the truth of the matter, I believe.

All right. This will be People's exhibit 615.

All right. Miss Martinez, do you have that?

Yes, your Honor.

All right. Let's see it.

Can we turn up the volume a little bit? Thank you.

There is more.

I will hear from the proponent.

There is more tape.

Well, your Honor, there is not really a whole lot to say. I thought that we had already argued this once before, and the court had indicated that we could use the inconsistent statements from the witness. And under 1202 we are entitled to use the inconsistent statements from a hearsay declarant and this is what this is. It is inconsistent with his testimony that he withdrew between 7.9 and 8.1 cc's of blood. And it is also inconsistent with the inference that was contained in his testimony that he looked at the syringe, although it was a little bit unclear from the testimony that was read into the record, he did seem--the inference that the Defense wanted to be drawn from it is that he looked at the syringe and that is how he knew exactly how much was drawn.

One moment, your Honor.

May I? Your Honor, this issue has never been argued before. In fact, it was deliberately postponed for this particular purpose because you decided that the appropriate time to raise it would be during the course of the People's rebuttal case. And we could sit here and stand here and law laugh at some of the jokes made on this tape and I agree at sometimes it wasn't very funny, and if it wasn't for the fact that Mr. Simpson was on trial for his life, I would sit here and laugh at that, but if the Prosecution actually thinks that they can offer a tape like that, if you will, of rank staged hearsay, completely concocted solely for the purpose of this litigation, after they knew we were going to introduce the grand jury testimony and the preliminary hearing testimony of this witness, then what they have done is set back notions of due process maybe fifty years and taken the 6th amendment and stood it on its head. And to suggest for a moment that they can somehow take a notion of unavailability and use that as some kind of license to put any kind of charade forward to this jury, it is absolutely absurd. All the court has to do initially, your Honor, is to start thinking back about the history of Thano Peratis. And what we have with Mr. Peratis is someone who as you may recall, the Defense urged the Prosecution to call as part of their case because we thought he was an indispensable witness to lay a foundation for the introduction of Mr. Simpson's blood vial. They refused. However, one of the things that I learned on this tape for the very first time is that they had subpoenaed Mr. Peratis to testify on their direct case, but at some point obviously changed their mind.

At that point in time Mr. Peratis was healthy was available and could have testified and we did everything to urge his live testimony before this jury where he would have been subjected to this type of examination and cross-examination that most witnesses are subjected to in an adversary system. In any event, they didn't do it. Sometime in late June or early July Mr. Peratis had a massive heart attack, and as we learned in court, went through a quintuple bypass and apparently it was his third bypass surgery in his adult life, and as a result of that he was then deemed unavailable. Now, when it was determined he was unavailable we at that point informed the court that we intended to introduce his grand jury testimony where he was called as a Prosecution witness, his preliminary hearing testimony where he was called as Prosecution witness, and that was going to be our offer based on the unavailability. And we were entitled to do that not simply based on the California code of evidence. We are entitled to do that based on the United States Constitution and a series of cases which have defined appropriate remedies when there is an unavailable witness. And that is what we one of the things that is really interesting, your Honor, in Mr. Goldberg's statements, that is, on July 17th, the morning before this--this outing occurred at Mr. Peratis' house, and this prep session occurred and these questions and answers ensued, is that Mr. Goldberg came into this court and said on the record at page 39085, that what he wanted to introduce were prior inconsistent statements of Thano Peratis. That is what he said. The exact words are that "If Peratis came into this courtroom and testified we would of course be allowed to introduce to impeach him prior inconsistent statements." Well, we should be entitled to do the same thing, if he is not here, if he is unavailable. That was the representation Mr. Goldberg made the morning of July 27th. Well, he didn't have there tape the morning of July 27th. He went out at apparently 3:15 in the afternoon and, umm, corrected these statements during this rehearsed interview with the witness, Thano Peratis. They are not prior inconsistent statements. The statements that we introduced by Thano Peratis were made back in June and I believe early July of 1994. That is the historical background as to what happened here. We submit, your Honor, that there are three separate reasons why this kind of rank hearsay is inadmissible at this point in time in these proceedings. First of all, your Honor, although 1202 says that hearsay can be introduced to impeach a hearsay declarant, it is not a--it does not cover all circumstances. It is not something which overrides the U.S. Constitution, nor did the legislature intend it to. In fact, in section 1204, two sections later in the same evidence code, it says, unambiguously, that: "A statement that is otherwise admissible as hearsay evidence is inadmissible against a Defendant in a criminal action if the statement was made either by the Defendant or by another under such circumstances that if it"--I'm sorry--"That it is inadmissible against the Defendant under the constitution of the United States or the state of California." So clearly the legislature was aware of the fact that not all hearsay is going to come in under all circumstances. And if in a criminal case the statement is to be used against a Defendant, which Mr. Simpson is obviously in these proceedings, then if--then it has to be done in a way that is constitutional. And there is something in the constitution called the 6th amendment which gives the Defendant the right to confront witnesses who wish to give testimony against him. And the 6th amendment, your Honor, has been construed most recently on this particular issue in 1980 in the case of Ohio versus Roberts which can be found at 448 U.S. 56, 1980, and in it what Roberts says is that there are two requirements that have to be met before something like this can occur: No. 1, there has to be a finding of unavailability. I can only assume that he was--he was unavailable, although he didn't look that ill in the course of this videotape on July 27th. But let's assume for the purpose of this discussion that they can demonstrate unavailability as we asked for unavailability two months ago in these proceedings. What Roberts says is that that is not enough. What you then have to find to make a finding of is there is sufficient indicia, you do some kind of balancing test that these statements are trustworthy for their truthfulness. That is the finding that the court has to make before you can find an exception to the hearsay rule that would pass constitutional muster under the 6th amendment right of confrontation. And I would suggest to the court, your Honor, that in this particular case they don't come close to meeting any of those indicia. No. 1, what he is saying here on this tape is that his sworn--in his unsworn testimony on this tape, is that his sworn testimony was false and that it was false in two very substantive important regards. No. 1, he is saying his sworn testimony was false because he said that he had drawn eight cc's. Now he is saying he hadn't done that. And he is saying it was false when he testified a year ago that he would, by looking at the syringe, you know, know how much blood you draw. What is extraordinary and completely unbelievable in this statement made a year later is the suggestion that notwithstanding the fact that the syringe is calibrated and it does have numbers on it and it does have lines on it, that he never turned it around to the side that had the lines on it and the numbers on it. Although that is in marked contrast, in fact it contradicts the sworn testimony he gave before another court at a preliminary hearing. So that is one indicia of reliability that is absent in this particular statement. A second indicia of reliability, your Honor, is that there is no Defense attorney present to participate or sit in on this particular interview that occurred on July 27th. There isn't even an independent party. There is an advocate, there is the Prosecutor, there is Mr. Goldberg. And I would point out at this point, your Honor, that Mr. Goldberg is participating on this videotape as an unsworn witness. This is not testimony in a courtroom where a lawyer gets up and is--and is cloaked in certain privileges being an attorney. This is Mr. Goldberg the private citizen out there with an unsworn witness and he is unsworn asking certain questions, making statements about what this witness may have said to him off camera or on other occasions and then getting the witness to confirm or affirm those statements. He, too, at that point is an unsworn witness. So there is no Defense attorney present. There is no independent person present to assess the reliability of this--of this--this staged reading that we just saw. The statement is not made under oath. And in fact the statement is made after, not as a prior inconsistent statement. The statement is made six months--or I'm sorry, the statement is made a year after he testified under oath. The statement is made six months after trial begins. The statement is made three weeks after we tell the court that we intend to introduce the preliminary hearing testimony and grand jury testimony of this witness. What better motive is there to fabricate at that point? Now, the other indicia that is relied upon by courts in this context is that was the statement made--was it some kind of innocent hearsay? Was it a situation where this witness, Mr. Peratis, simply said to a friend, God, I made a mistake about something or something like that? Is it that kind of statement as opposed to a statement that is made explicitly and exclusively for the purpose of litigation? There is no question at all that this statement was made for the purpose of litigation. And when statements are made purely for the purpose of litigation, your Honor, that indicia of reliability is lost and it is very difficult to compensate for it. Certainly it is not compensated for in the facts of this case. Now, what is another indication? Well, does it sound right? They have the temerity to suggest that this man who is drawing blood on a regular basis a year later remembers when he looked at a blood vial on June 13th of 1994, how full it was. When he said that he prepares blood vials on a routine regular basis all the time, be it in drunk driver cases or any other kind of case, he does it routinely, and he is suggesting that all of a sudden now a year later he can remember how much blood was in that particular vial as opposed to the other vials that he drew. It is extraordinary.

Exactly, and that is why when he testifies under oath at a preliminary hearing and in the grand jury, your Honor, that this eight cc's of blood--and it could have been 7.9 and it could have been 8.1. And I look at the syringe and that is what the syringe says, and that is exactly why he knew it then and that is exactly why the constitution prevents the Prosecution from coming in later on and going out to a man's house after he is declared unavailable and putting on a charade like this where there is no Defense attorney present, where it is unsworn, it is not even a deposition, and he can say anything he wants and he can never be challenged. That is not what 1202 had in mind and that is why the constitution gives you those protections, your Honor. Now, I would also point out--one moment.

In that regard, your Honor, I would also point out that there is no independent basis for admitting this statement because even though the statute 1202 envisions that hearsay will be admissible, there still has to be some basis for it. This is not a prior inconsistent statement. This doesn't meet any of the other criteria for ordinarily impeaching this kind of witness who is offered sworn testimony. And the sworn testimony that was offered here was sworn to back in June and July of 1994, not July 27th or 28th of 1995. It would have to be prior to that, your Honor, because that is when he made the statements. In terms of a motive to fabricate, he said--he said, "It was when I heard during the trial that there was 2 cc's," although I think the testimony was really that was one and a half cc's that the vial was short, umm, "That I thought I may have screwed up the Prosecution's case and decided I had to look into this." Now, if that is an indicia of reliability, you know, that is extraordinary. It would be stretching all the rules of evidence, your Honor, to allow something like that to pass muster legally or constitutionally before this court. Umm, finally, your Honor, the tape in and of itself, apart from violating the constitution, apart from not falling within the confines of 1202, its content itself would render it inadmissible under any kind of 352 consideration or the court's own inquiry as to whether or not this would be a fair and just thing to do. And remember, your Honor, that is what you have to come back to. Is it fair and just to allow this kind of staged q and a by Mr. Goldberg to come in to rebut their own witness' sworn testimony that he gave on two prior occasions? And in that regard, you have this individual on the tape describing double and triple hearsay. He says I didn't even see this statement on television. I heard it from a friend who heard it from a friend. And your Honor, I can offer testimony right now from Robert Blasier or from Jo-Ellan Dimitrius, who were both with me at the infirmary with Thano Peratis on April 7, 1995, about this issue. And we walked into Mr. Peratis' office. He had in the infirmary a television and the television was on and we asked him why he has a television in the infirmary where he works and he says he has the television in there so he can watch the O.J. Simpson trial each day because it is often slow in the infirmary and there is nothing to do. We asked him then, "Did anybody in the Prosecutor's office tell you that you are not supposed to be watching this?" And he said, "No, no one ever told me that." Maybe that is the reason why he came up with a new explanation on this videotape on July 27th, but I can offer sworn testimony from Jo-Ellan Dimitrius or from Robert Blasier on that particular point. And that he said was--and this is what triggered it all in his mind--is he was listening to Mr. Cochran's opening statement when he heard about the one and a half cc's and he became alarmed that perhaps he was going to hurt the Prosecution's case and at that point in time for the very first time he began to reconsider this whole thing. Now, on the one hand he is admitting to us that he is watching this trial everyday, he has a TV in the infirmary, and then all of a sudden he completely changes the basis for how this information came to his attention to cover his own behind for being caught watching this show every single day. I'm telling you, your Honor, this is not somebody who you can trust under those circumstances when we don't have a sworn witness here. No. 2, your Honor, umm, he is describing in the course of this q and a an experiment he conducted, and that brings us back, your Honor, to something that came up.

He doesn't describe it; he replicates it.

Well, that is the point is does he substantially replicate it? And in fact listen to this. It is an experiment within an experiment because what he says is I'm doing it now one way. This is not the way I did it, in fact, when I did it in my own infirmary, after hearing Mr. Cochran's opening statement or hearing the reference to the missing one and a half cc's. So you don't have substantial replication, no. 1, on the video, of an experiment that he did in his own infirmary. Neither experiment substantially replicates the manner in which he drew blood from Mr. Simpson on June 13th, so none of those experiments or description of them would meet the--the case law criteria that they have asked for in keeping out other experiments that our witnesses tried to introduce. This certainly falls way short of the glove drying experiment that Mr. Scheck tried to introduce that had been performed by Henry Lee. He even says so. So if the content--

Swatch drying.

I'm sorry, the swatching drying experiment. The swatch drying experiment. What did I say? Glove? It is a day of gloves, your Honor. So just--I mean just to recap very briefly, your Honor--

We don't need to recap.

--it doesn't meet the constitution. Okay. Your Honor, I'm just saying that there are so many reasons why this can't be permitted at this point, you know. It is almost as if we could have just turned off the tape and not had to have any argument at all. It is that shocking, frankly, to even believe that the Prosecution would believe that his asking hearsay questions to a witness under those circumstances, based on what has happened in this case, could possibly be screened before this jury.

Thank you.

Thank you. May I respond? First of all, I don't understand why this type of hysteria in advocacy is necessary, especially when we are dealing with a very straightforward evidentiary issue and the type of aspersions that counsel likes to cast. I don't know what he is talking about when he says this was staged. You may not appreciate, once again, my directorial abilities, but clearly this is not staged or rehearsed in any way, means, shape or form, not that that is necessarily what is relevant here legally. When we discussed this the last time, if I'm paraphrasing the court's comments correctly, and I believe I am, I think what the court said when counsel expressed amazement at the idea that we could get inconsistent statements of a hearsay declarant in, as the court said, well, it is something that we have in the state of California called the evidence code, so we did discuss it before. I don't know whether the court formally ruled, but I think the court has a very clear understanding of this issue and what the law is in the state of California. Now, what is admissible under 1202? It is not prior inconsistent statements that are admissible under 1202, the credibility of a hearsay declarant; it is evidence of a statement or other conduct by a declarant that is inconsistent with a statement by such declarant period.

It doesn't say anything about prior inconsistent statements. This is the kind of shorthand that we attorneys often use that gets us into trouble, because we are used to saying prior inconsistent statements, and in actuality the code does not speak to prior inconsistent statements; it talks about inconsistent statements. Evidence code section 1235 says: "That evidence of a statement made by a witness is not inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing." Again, it doesn't say prior inconsistent statements. And the commentaries to these sections make it absolutely clear that there is absolutely no requirement, and never has been one, in this state or any other state, that the statement has to be a prior inconsistent statement, merely that it must be inconsistent. And this is inconsistent. The next thing that I would like to point out is that counsel makes a constitutional argument that is entirely misplaced and stems from his misunderstanding of California evidence law. The section that we are relying on, 1202, is not contained in the hearsay exception section; it is contained in chapter 1. Hearsay exception also starts in chapter 2. Why is it that the legislature put this in chapter 1? Because it is not an exception to the hearsay rule. And in fact, and perhaps I should not point this out to counsel, because he apparently doesn't know this, the Defense--

Well, counsel, now we are getting into the same kind of conduct that you were complaining about.

I'm just criticizing his legal analysis. I'm not criticizing any other aspect of what he said.

All right.

They would be entitled to a limiting instruction that this is coming in only for the purposes of analyzing the credibility of Mr. Peratis. It is not coming in for the truth of the matter asserted under this section. It is coming in for the purposes of showing that someone who has made an inconsistent statement on the points to which he previously testified cannot be trusted with respect to those statements. So there are no trustworthy requirements. It is not being offered for the purposes of proving that those statements--

Mr. Goldman.

I thought maybe Mr. Cochran wanted to say something.

I was talking to Mr. Simpson.

It is not being offered for the purpose of showing that those statements are true; it is being offered for the purposes of showing that his prior sworn statement is not reliable. And that is why you do not need to satisfy any other requirements of trustworthiness or anything other than what is provided in the code itself. This is a very simple problem of mechanically applying the evidence code that is very well-established. There is no issue. There is no 352 issue. If counsel wants to introduce other inconsistent statements of Mr. Peratis, maybe he can, maybe he can't. I think we should take those up when it is appropriate. And if the court were going to rely on any conversations that he has, those should be reduced to a declaration rather than relying on his representations, because he has not correctly stated even what Mr. Peratis' former testimony was, because he did not say he looked at the calibrations on the syringe. He said he looked at the syringe. And no one ever asked him whether he looked at the calibrations or not, although that is one possible inference. So I don't think that we can necessarily represent at face value counsel's paraphrasing his conversation with Mr. Peratis, and it is not relevant anyway. It is beside the point as to this issue. Now, as to the question of the so-called experiment, this is not an experiment that is being offered for the purposes of illustrating what actually happened. It is again not coming in for the truth of the matter asserted. This is simply explaining how Mr. Peratis came to the conclusion that his former statements were incorrect. If Mr. Peratis testified that he looked up in the sky and saw clouds in the shape of a 6.5, and that is how he came to the conclusion that he really drew 6.5 cc's, that would be admissible, too. We don't have to prove that looking in the clouds is a reliable way of figuring it out. All we are trying to show is that he has made an inconsistent statement and that is part of his inconsistent statement and why he believes that his previous testimony was not correct. So it is not coming in as an experiment, but simply as part of his inconsistent statement and an explanation for how he came to the conclusion of what he previously said was incorrect. So all we are asking the court to do is follow the evidence code. It is very clear this is a an inconsistent statement. It comes in.

Judge--

I think we were the moving party.

That's correct. All right. Counsel, you have argued to the court Ohio versus Roberts, which is Justice Blackmund's opinion from 1979 that I don't recollect, frankly. It was just handed to me. I would like to read it. So we will take a couple moments and I will rule. I want to read this before I rule, since you cited to it me, and I have not read this recently. I don't recollect the facts or circumstances of this case, but let me just make an observation, Mr. Goldberg. There is a lot of stuff in that tape that is not specifically a statement inconsistent with Mr. Peratis' testimony at the preliminary hearing before the grand jury, and there is a lot of surplusage there. Also, I think the court's rulings regarding demonstrations and experiments are pretty clear and pretty consistent, so may perhaps--I mean, do you have an edited version of this tape available or solely the statement as to what he drew?

No, your Honor, because it would be difficult to ferret out exactly what portions those are, because in every portion, almost every portion it seems to me he is explaining why it is that what he said was incorrect and how he determined it to be incorrect. There may be certain instances where I could see the court saying that those statements do not do that directly or indirectly, but otherwise it seems to me that everything else is either directly or indirectly inconsistent with his testimony in the prior hearings.

All right. Well, I will read Roberts and I will rule. All right. We will take 15.

Also, for the record, counsel, did not cite to me Roberts in advance. I have read it before, but I did not have the opportunity to reread it for this hearing.

Well, it has been a long time since I read it. All right. We will take 15.