All right. Back on the record in the Simpson matter. Let's take up the length of argument matter first.
Your Honor, Miss Clark will be arguing that motion. I know she will be here momentarily.
May I take care of a bookkeeping matter while we are waiting for her? I just want to make sure the materials the court considered on the Whitehurst matter be made part of the record because I know you have seen things that we have not seen.
Would your Honor like me to address the People's response, because you've read my moving papers. Well, okay. I'll just start from the beginning. The Defense--
Well, let me ask you this. Don't you think there's some restrictions we ought to apply to snippets or whatever it is that you're going to use, to require that it not have--I notice that from time to time, the camera roams at people in the audience or goes to things that are not specifically the witness or the person who's doing the questioning.
Yes. We would not seek to use any videotape that had anything other than the witness. We would never want to pan over to Mr. Simpson or any other person in the courtroom. So we can make that assurance to the court, that the only videotape of a witness testifying used would be that of the witness' face and demeanor. Okay.
Well, the People talk about in their response that they think that there would be an undue consumption of time in arguing the admissibility. First of all, I've spoken with Mr. Cochran about this, and he intends to only use about 10 snippets of videotape in closing argument. So I don't think that there would be an undue consumption of time in having the court preview the videotape that we intend to use, and I don't believe that Mr. Cochran intends to use any videotape that's going to be considerably lengthy at all in any event. So I think that if we were to set up a time where both sides could be here and preview the videotape that the Defense intends to use and that the People intend to use, if at all, that it wouldn't take very long at all. We could possibly do that Friday afternoon.
Okay. Mr. Cochran says realistically by Monday afternoon, although I know that is a court holiday. I don't think it would take very long.
The People also talk about in their response the turnaround time that they would need to respond by way of videotape. I think that the need to do that would be obviated also by having this preview session. They would then be made aware of what the court's rulings would be with respect to whatever videotape was admissible at closing argument and then they would have enough time to present to counsel and to the court what videotape they planned to use in their closing argument. So all of that would be before the time for the closing argument.
They also speak about taking testimony out of context. I don't see that as being any different from reading from portions of a transcript during closing argument. Obviously, counsel takes certain portions of the transcript, and the People are obviously able to respond in the manner that they feel necessary in their rebuttal. Further, the People say that videotape is not an accurate representation. I think that it's clearly the most accurate representation of what occurred at the trial. They speak about the angle being nonrepresentative, that the camera is in a different position than the jury view. I think that it's very close, very similar and I don't think that that should be a reason that the court should not allow the use of videotape. I think that I have addressed all of the arguments the People presented in their response, and I'm available to answer any questions the court may have.
The last thing I want to say is, we looked up California law. There was nothing on the subject, but I did find some out-of-state cases, Illinois court, Indiana and Georgia. All of them say it's basically at the court's discretion, and there are a number of cases which have allowed the use of videotape and audiotape in closing argument as well as graphics obviously.
Your Honor, every criminal case in this country has been argued and is currently argued and will in the future be argued based on the court record in the case and perhaps illustrative charts that either side may use. In this courtroom, we are particularly fortunate for this case to have the use of the elmo and the graphics presentation that has been made available to the court and to counsel for both sides throughout the trial and which we will continue to have for closing argument. That alone is a unique feature of this trial that is not enjoyed by the vast majority of criminal cases that are argued throughout this country. Now, when it comes down to the particular media videotape and broadcast, there are definite problems with it. And, frankly, one of our concerns is that whatever the Defense may use--may choose to use may be taken out of context.
Now, when you're talking about a reporter's transcript where the arguing counsel has to cite the page and line, it's easy in most cases, though in this case, with 200 some volumes, 200 something volumes, it wouldn't be so fast. But in normal cases, it's easy to pull out the transcript and see what the context was in. We don't have that quick turnaround ability here. Even if we were given some amount of time to preview what Mr. Cochran--and I assume he's the one who is going to argue--intends to use and anyone else who is going to argue on the Defense side, even if had the opportunity to preview that, we would have to--there would presumably, because there has been throughout this trial, there would be reason for objections. We would be making those objections. It would take us time to find the context. We might make representations to the court, but we'd have to go back and look. And, frankly, it's difficult, especially with the--we're grateful for them, but they are government videotapes that we have. We don't have counters on any of our videotapes, so that it's--on any of our videotape equipment I mean, our VCR playing equipment upstairs.
No. We don't. I was shocked when I first discovered that. But unfortunately, we don't. So it's very difficult to search through as you can imagine because you have to stop and listen periodically to what's been testified to, and it's a very, very difficult process, as we're discovering at the moment, to find things on the videotape. So the practical difficulties are going to create problems. In addition, there are some other difficulties.
So are you suggesting that the Prosecution is at some kind of technological disadvantage in this? I mean, do you have access to the same tapes that the Defense has?
We have access to the same tapes. No, your Honor. I'm just suggesting it is a practical difficulty when you're talking about videotapes, videotape testimony, to go through and find the context that the Defense may cite with regard to any particular witness' testimony. In addition, throughout the broadcast of this trial, as the court just mentioned, there are many times when the camera is focusing on other counsel, on the court, on members of the audience, on the Defendant's face. And even though Defense counsel concedes that would not be appropriate to show, there are instances where that happened when the witness was giving critical context testimony. In addition, in recent months in particular, for a good reason I'm sure, the stations who have been broadcasting--the stations who have been broadcasting have been cutting away frequently to commercials as I understand. The revenue was down when they had high ratings, but no commercial time. So there are many times now currently, which I don't know if the court's aware of this since you're here on the record, when they're breaking away to commercials.
Your Honor, the point of that is that we may not have a context--if the Defense comes up with what we believe are misleading clips, there may not be a context available from the live broadcast readily available to us for us to supply the context.
Well, Miss Lewis, let's suppose that as one of the requirements, I've already indicated that a likely restriction would be that the videotape would only be of the witness' testimony only, no other views allowed, that these would have to be previewed and any preview was likely to require a citation to the transcript as to where it's coming from so that both sides have the ability to look forward and backward. And both sides have the advantage of having the real time transcript on your computer disk. You can do word searches back and forth. I mean it's pretty easy to find. That's why I've given you all this fancy, smancy stuff.
All of that is wonderful when it comes to the record. And as most attorneys rely on when it comes to closing argument, we all rely on the record when we want to quote what a witness has said. The media broadcasting is not part of the record in this case. And for the practical difficulty which I mentioned in terms of searching the videotape--searching the disk is not a problem, but to have the jury presented with something that this witness, a witness has said out of context and then to stand up here and try to read the context testimony or even put the context testimony in writing on the elmo doesn't make up for their advantage that--that side's advantage in having shown the live testimony as to the point the Defense wanted to make critical. Now, there's some other problems as well as--which I've set forth in the brief. So I won't go on at length.
But the angle of the camera is at a high angle. It is high up in the courtroom. And to point to the witnesses in a downward angle and quite to the side so that the demeanor observed by the lens is not the same demeanor that these jurors who are sitting lower than the witness or substantially level with the witness enjoyed, so that the demeanor is not even the demeanor that was had on the record if there could have been a record in terms of the eyes of these jurors and what they saw when they looked straight around at the witness testifying, it's not the same. So it does not portray the same image that these jurors captured in their minds' eye. So it is not a truly representative angle. And it reminds me of--I'm not that big a sports fan, but in football games, I know there's quite a bit of controversy over use of the instant replays because, depending on what angle is captured, something may not have appeared to be so. Now, this is less important when you're talking about a person talking, but it still demonstrates the point that it is a different perspective from what the jurors had. So it doesn't necessarily at all record or be the best--is the best recordation of that witness' testimony.
So--and, your Honor, we've heard throughout the course of this trial from both sides on what everyone's intentions were and the intentions when it came to witnesses and intentions when it came to who was going to be called by either side, and Miss Chapman makes the point about Mr. Cochran's intentions at this point in time. Suppose the People after the People's opening argument, perhaps Mr. Cochran might want to change his intentions with what he uses. That will consume time throughout the trial--I mean throughout the closing argument and during argument. There's additional practical considerations. We're not ready to preview it. If the court does allow this, the Prosecution is not yet in a position to be able to show the other side what we have and I don't--I can't even make an accurate representation yet to the court in terms of when we would be able to do that. Monday is a Jewish holiday and, you know, the lead Prosecutor in this case needs to be here for something like that, and that would certainly be unfair of the court to require any preview be made on that particular day. So that there are a lot of practical problems, your Honor. And we do enjoy, as I mentioned, the benefits of this elaborate graphic presentation system through the elmo and the monitors to the jury, and that can be effectively utilized as well as all the traditional means and as well as any videotape which was shown during trial and was entered as an exhibit. Any evidence that came in as the case--into the case as evidence, of course, they can use the visual equipment to portray that. So they will--both sides will have the luxury, if there's any videotapes they want to display, of having that ability of displaying some live action, for lack of a better word, to break up what might be a monotonous argument by doing that. So the practical problems clearly outweigh any usefulness this could have. In addition, your Honor, it's very likely, given the number of witnesses we've had in this case and the vigorousness with which it's been litigated on both sides, that this would prolong the length of closing arguments for both sides, not only in litigating what's going to be used and allowed to be used, but in the actual presentation of these things because they'd have to be explained and set up in advance as to what the witness was saying at the time. And the court I know is eager, as are the Prosecutors, to get this case to the jury. That is our foremost consideration, and it's--this is something with regard to closing argument that has too easy a potential to be misused. We do not enjoy practicalities in terms of the technology or the turnaround time with which we would be able to glean the context and situations where the Defense might want to use it. And the court--I submit the court's exercise of discretion should be in favor of not allowing this for either side. It's simply not necessary and could easily cause--prolong litigation, undue consumption of time both before and during closing argument.
With respect to Miss Lewis' concern about the practical aspect of this, it seems to me that it's far more practical to preview the videotape than it would be in a normal closing argument situation where counsel would simply refer to the reporter's transcript and then opposing counsel would have to look up the transcript at that moment without any prior warning at all except for at that moment's time. In this--in this matter, we're going to have a day before closing arguments where the People will have an opportunity to see everything that's going to be presented. So it's going to run much more smoothly than it would if simply a transcript were used.
But Miss Lewis does raise the issue that we have agreed to be in recess on the 25th.
It's my belief that that preview session is not going to take very long. I really don't anticipate that the Defense is going to use a great deal of videotape. I don't expect that the Prosecution is going to use a lot of videotape since they're opposing this motion. So whatever we do, I think it can be done in a short amount of time. We can do it first thing Tuesday morning.
When do you anticipate your side would be able to isolate those passages at least by reference to the reporter's transcript? Say by 5:00 o'clock Friday?
Okay. With respect to Miss Lewis' arguments regarding the angle, Mr. Blasier points out that each of the jurors had a different perspective from one another. So I really don't think that that is of primary importance. And it's also interesting that the People are arguing about the time limits in closing argument. It was the Defense position that closing argument itself should be limited in terms of time and the Prosecution wants to have an unlimited amount of time to argue. Obviously, since we're arguing for a limited amount of closing argument time, then we would fit our videotape into that amount of time. As I emphasized over and over in this argument, we don't intend to use a lot of the videotape. I don't think it's going to take a lot of time for the court to preview and I don't think it will take a lot of time in closing argument itself.
I suspect that all 10 of these snippets aren't going to come as any surprise as to which 10 they are.
KEY QUOTEBut it seems like we should cross this bridge as we come to it. The court is going to have to make a determination at some point as to what is appropriate with respect to the exhibits and graphics, and we'd just like to put the audiotape and videotape along with that. Obviously, if the court finds something inappropriate in any of the graphics or demonstrative evidence or videotape, the court will say so and rule that to be inadmissible. So I ask for an opportunity to preview to the court and counsel what we intend to use, and then the court could make its ruling at that time.
We don't have all of the taped proceedings in this case. We have made a valiant effort to do it throughout the trial, but there have been times when the equipment malfunctioned. Other times, we simply didn't do it. So not only is there a practical problem from our point of view in locating the context and so forth, but we may not even have the tape, even assuming there was live coverage. And there's an additional point which I did raise in my brief that I wanted to mention, that the--there are many instances where the--well, I think in every instance if I'm not mistaken, the logo or channel number of the broadcaster is visible at some portion of the screen, which would have to be excised out. It would be inappropriate to draw the jury's attention to the fact that the media has been broadcasting this. I know they are aware of it, but that would only heighten it when they're staring at a witness since they're not allowed to watch television coverage or anything, I recall that, when they're back at the hotel since they've been sequestered. In addition, there are comments that appear in much of the live coverage underneath the witness, description of what they're testifying to or some context which is perfectly appropriate in terms of the media providing entertainment to their viewing audience, but totally inappropriate, again, in terms of appearing to have some sort of an official endorsement because of the professional manner in which it's displayed of any--any description of the witness. May I have just a moment?
In addition, if any of the footage that's used is news coverage of the--any portion of the testimony as opposed to the channel 5 or CNN or court TV's live broadcast, that too is going to be demonstrated by whatever it is on--that's on there with the symbols and statements and so forth, and, of course, that would highlight in a--totally improperly whatever that news organization felt appropriate to show that day. That would give it extra emphasis or extra authority or extra deference that the jury, of course, is not allowed to give and that would be a distraction as well. There's a lot of practical problems from our humble point of view as civil servants with a--I notice there's a lot of us on this case, but we still have limited abilities and limited technology and limited dollars, especially to spend on something such as closing argument when we do have these wonderful courtroom graphics available to us.
All right. Thank you, counsel. All right. The request to be allowed to use videotape, quote, unquote, snippets of testimony during the course of argument will be granted under the following terms and conditions: The snippets or the outtakes that can be used may depict the witness and the witness only, that it must come from videotape that is available to both sides, that the parties--that the Defense shall file by the close of business Friday, which I will deem to be 5:00 o'clock P.M. on Friday, the 22nd, the transcript citations of the excerpts that they wish to use. Because the Prosecution has technical disadvantages apparently, I'll allow them leave until Tuesday morning, the 26th, to submit their citations--
No, counsel--to the transcript. And we will have the screening of the snippets or any outtakes in reference to the transcript at 8:00 A.m. On Tuesday.
Your Honor, you said filed by 5:00 P.M. did you mean to indicate as well the Defense should fax or somehow supply a copy--
We don't have counters on any of our videotapes, so that it's--on any of our videotape equipment I mean, our VCR playing equipment upstairs.
You're kidding.
I suspect that all 10 of these snippets aren't going to come as any surprise as to which 10 they are... I could guess at least as to six or eight of them.
We promise they won't show any commercials during the closing argument.