Back on the record in the Simpson matter. The Defendant is not present. Mr. Douglas, previously Deputy Jex advised me that Mr. Simpson wished to waive his presence for the exhibits discussion?
All right. The court will accept the waiver. All right. Mr. Darden, you are here to argue certain items of evidence?
500 is that photograph shown to Mr. Heidstra. He testified that he heard a metal gate slam and he was confronted with several photographs of metal gates.
Yes, in the area attached to homes on the west side of Bundy, and adjacent to and around 875 south Bundy. And it was his testimony that those pictures were in fact photos of gates at those locations and so there was proper foundation on 501.
Your Honor, if the court looks at page 36473 and 36474, you will find that there was no clear acknowledgment by Mr. Heidstra authenticating the pictures. What occurred was there was an ambiguous answer given to a compound question. The question being: "You see this stack of photographs and you also see that there are numbers for the houses in the photographs as well?" And the answer is: "Oh, sure." And I think that that is not sufficiently adequate to lay a proper foundation for the introduction of those photographs.
All right. The objection will be overruled. The photographs depict, as Mr. Darden indicated, numerous gates, metal gates in the area. Also, the aerial photographs depict the same gates only at more distant locations, I mean from a more distant view, and I think there is an adequate foundation. It is also a minor point.
Okay. At page 38346 these photographs were both shown to Detective Luper during the Defense case--these photographs, rather. And Detective Luper testified--these are the wedding photographs.
There is one photograph of somebody holding up--holding up the bedspread with the photograph underneath and then the photograph turned over.
Yes. Thank you. Detective Luper testified at those page numbers that he recovered that photograph from beneath the bed on June--initially the photographs were shown to Gigi Guarin and she could not authenticate them or their location on the date of June 13th, but Detective Luper did that.
I didn't have a chance to reference Luper, but I know that Arnelle Simpson was asked about them and she could not lay a foundation. Gigi was asked about them and she could not lay a foundation and I think Miss Collins, one of the earlier witnesses for the Defense, was also asked about them and could not lay a foundation. I don't have a specific recollection as to Mr. Luper.
The court does recollect Mr. Luper's testimony regarding the recovery of these items, so the objection will be overruled.
The problem is I'm going to have to leave them both in because different people testified to them at different points and identified them as different exhibits, so we are kind of stuck with having duplicate photos because they are in vastly different parts of the case.
I don't think that there is a doubt that 491 and 492 were not properly authenticated. I don't think Mr. Darden is even arguing that.
Okay. There is also 603 and 604. 603 is a nondisclosure agreement signed by Laura McKinny's lawyer, and 604 is the personnel complaint involving Roderic Hodge.
He testified this was a document he had never seen before and no one was called to authenticate the document. It contains hearsay, the hearsay of other individuals, and there is a 352 objection.
The significance of the document, your Honor, as was used by the Defense, was to support the position that Mr. Hodge's complaints on the occasion of his arrest as far as certain words that were spoken by Mr. Fuhrman in the presence of his partner were complained to through this official document. And I thought that the information was being used by the People to suggest and to impeach Mr. Hodge by suggesting that the absence of any references to that allegation would undermine the credibility of Mr. Hodge. We think, your Honor, that the absence of any references in that document supports our position that there was in fact a difficulty or a problem or, if you will, a failure by law enforcement agencies to acknowledge certain complaints that which are lodged against them.
And we would like to have that document admitted so that we can argue the implications of the absence of that claim, because certainly the document reflects the occasion of Mr. Hodge's arrest. It reflects the circumstances of his arrest. And he acknowledged that it reflected his incident. He acknowledged his having made certain claims. And we think that the absence of that particular reference is important for our theory of our defense.
All right. The court finds that there is no foundation for this. It was used to--as an impeachment document, but Mr. Hodge indicated he had not seen it, and it did reflect, according to Mr. Hodge, an allegation of discourtesy which was consistent with his testimony here, so the objection will be sustained.
Your Honor, could the court entertain the exhibits that I deal with so I can get back upstairs?
Your Honor, the note I have, and please correct me, Mr. Douglas, if I am acting on erroneous information, the Defense has objections to 507.
Well, your Honor, we are not offering--we are going to have a lot of perhaps difference of opinion that we are not offering the medical reports, 507, and I haven't seen these documents in a while, but that is Dr. Huisenga's six-page report. But there are two pages of hand-drawn--hand drawings which we do want the jury to see, but they are going to perhaps have to be modified in some way. I believe, if I am not mistaken, Dr. Faerstein's name is on one of them with Dr. Faerstein's number, phone number and so forth. It may be on the right-hand drawing. The outline is actually going to be, as I recall, two left hands because they are using a prepared outline of a human hand which happens to be of the left hand,, as I recall, to reflect both right and left. But we are offering the hand drawings. We are not offering the report itself. We are not offering 508, 509.
That was authenticated by Dr. Huisenga, that it accurately reflects the body of information that he was given on June 15th. It accurately reflects observations about which he testified, and it provides a foundational bases for the jury to assess and evaluate the quality of his opinions concerning certain conditions of Mr. Simpson insofar as arthritic conditions, certain observations as to cuts. Dr. Huisenga was--
Because it has sufficient guarantees of trustworthiness and as well it is offered to support the bases for Dr. Huisenga's opinions. He was subject to strenuous cross-examination and I think it only fair that the jury be in a position to independently look at and evaluate those documents that were used to reach certain opinions that came under such ferocious attack, particularly given, as we now know, some of the instructions that the court will give based on some of the statements that Mr. Simpson made to Dr. Huisenga, and implications that it appears the People will argue from those statements. I think it only fair that the jury be given the chance to look at a document that was referred to and that was cross-examined very extensively about.
Your Honor, I don't think "Ferocious" is exactly how I would describe the cross-examination. If that were the case, I think I took my life in my hands by laying on the counsel table and allowing Dr. Huisenga to perform a manipulation on me. I would say, however, that the hearsay--
I was about to direct your attention to the legal argument that I was interested in.
Certainly. The hearsay problem cannot be overcome. First of all, we don't have 80324 of the federal rule, the trustworthiness exception. When there is another exception to the hearsay rule, that is applicable. The drawings, however, qualify in essence as photographs. They are demonstrative evidence that Dr. Huisenga has authenticated to fairly and accurately represent the identification of certain injuries that he observed on June 15, 1994, and clearly those are of significance to the jury's consideration of Mr. Simpson's guilt. They are not subject to hearsay. As I say, they are the equivalent of photographs, except that they are hand drawings.
Your Honor, I have not seen--is there a pointer or something on that that we highlighted something?
All right. The objection will be sustained to the report. The--excuse me--I will allow the withdrawal of the report.
Correct. These are all records of sedimentation rate and so forth. This was part of the examination regarding whether or not Mr. Simpson had evidence of an acute arthritic episode at or about the time of June 12th, 1994.
As is 510. That is Dr. Maltz'--I don't have the date, but it is 1992 examination. That that is a sedimentation rate of 34, not offered.
I'm going to withdraw or not offer--522 is actually I believe 522-A. I know that Mr. Lynch was asked by me to make sure that we substituted for both 521 and 522 the edited tapes that reflect only what was shown to the jury.
Right. So there should be a 521-A, which is the actual video that was shown to the jury which we are offering, not 521 which has more on it than was seen by the jury.
I sort of have it the other way around. I'm sorry. I stand corrected. 521-A. All right.
521-A, I have as that portion of the exercise video outtakes from May 25 of 1994 which were seen by the jury and which is the--the videotape we are offering in lieu of 521, which is the full videotape, not all of which was seen by the jury.
522-A is the motivational speech, and that shows that portion of the motivational speech which was seen by the jury and excludes that portion which is on the full video, 522, which was not seen by the jury, and I understand there is an objection to that.
There was no authentication as to the date of that particular item. It was simply played for Mr.--Dr. Huisenga. There was a representation as to what it reflected and when. They offered no other witness who came from the juice plus company who was present at that particular speech who could then possibly authenticate the date or lay a foundation for its introduction. It is therefore not admissible in its present form.
Your Honor, could we put this aside for one moment? I have to confess that I informed Miss Clark and other lawyers of the need to have a witness to lay a foundation.
I will take the court's representation it was not done. I tried to follow it up. I was under the impression that there was either a resolution by stipulation or in some other manner it was resolved. Even if the court feels that there was no foundation, the question becomes one of relevancy. I will not object to counsel's objection and I anticipate then the court will sustain it.
523 is not offered, your Honor. Back up for a second. Dr. Martel's radiology consult report directed to Dr. Maltz.
And I believe then the only remaining exhibits that I am responsible for are--to which there is an objection would be 583 and 584, the videotaped confessions of a medical examiner and announcement. We are offering neither one of those.
Your Honor, if I find that we are having difficulties getting the packet, I will notify the court and ask for relief until early tomorrow morning.
All right. Well, how about later tonight? Because, Mr. Kelberg, I need to work on them as well.
I have every confidence we will have them because they are primarily going to be the standard forms that the court wants to modify in the court's own fashion, so I think there is every reason we will have them down here.
We are pairing down the list here. All right. Do you want to take it from the top with what is left?
And we submit that this is admissible as an inconsistent statement, your Honor.
Your Honor, I think it is no proper--no proper foundation was laid. Still hearsay. It is not a proper document to be submitted or offered by the People in this case.
My recollection is that she was confronted with it, acknowledged that she gave the statement, but then later said that she was mistaken as to the time.
All right. The objection will be overruled. All right. 498, statement of Denise Pilnak.
And we make the same argument, your Honor. This is offered as a prior evidence of a prior inconsistent statement.
I'm not sure that it was inconsistent with the statement in court, your Honor, and I have the same objections as with the other one.
All right. But then she said that based upon other things. She had now a different opinion on the time.
I will ask Mrs. Robertson to look for that one. Which number is that? 531? I'm sorry. 531. Got it. All right. 531, 53--yeah, 531.
Yes. That apparently, in reviewing the transcript in volume 190, it was marked at page 3777. Miss Clark was interrupted as she marked it, so the full citation isn't there, but it was marked at that page. There was an extended discussion at side bar regarding this issue. Miss Clark questioned the witness regarding the existence of a dome light and I believe the witness stated, according to the transcript, that there was--that he lacked the recollection one way or the other, that the dome light went on and he denied knowledge of how the dome light works in a Ford Bronco.
We would submit that the photograph was marked and that he was questioned regarding it. Whether or not this has much probative value will be up to the jury, but we submit that the foundation is laid.
What occurred, if I can recall, your Honor, I was present in court. There was an objection, but upon the recitation marking of an exhibit. Miss Clark was trying to lay a foundation before offering it or showing it to the witness. She was unable to. That is why she did not offer the actual exhibit to the witness.
All right. As to 531, the objection will be sustained, lack of foundation. All right. Next item.
All right. 578--I'm sorry, 570 and 571. Do you have those charts available, Mrs. Robertson?
For the record, your Honor, these arguments basically parrot those that were made when the boards were first presented. If you will recall, Mr. Scheck objected both on 352 and on grounds than it is cumulative to the results of the RFLP/DNA analysis board.
I can also answer for that. That is, I believe, two pages of transcript that were used in testimony and otherwise is submitted to the court.
Submit. I don't think it is appropriate that we would highlight any particular witness or any particular aspect.
It was previous testimony of Dr. Weir used with Dr. Speed and it was used to clarify the witness' understanding of previous testimony by Dr. Weir.
Thank you, counsel. I'm sorry, 583. That has been withdrawn. 584 been withdrawn. 587.
And yes, your Honor. We are offering this as a prior inconsistent statement to impeach Dr. Rieders with respect to knowing that Deputy District Attorney Kevin Denoce, D-E-N-O-C-E, of--to knowing him and of receiving the 1985 autopsy tissue and we would submit that a foundation was laid with Dr. Rieders.
Your Honor, referring to page 41636, line 15, where he was shown that bill and said he didn't know, he didn't recognize it. It was never authenticated.
Well, the fact that he is familiar with the practices of the billing department would give some indication that this is a legitimate bill and that the date is accurate.
The real issue we believe is as to the hearsay issue and that was laid as a prior inconsistent statement.
After he said I don't know, there were never any further questions asked about the billing system, the billing department. It just never went any further.
All right. I have in my notes 41638; not 36, so I will check the--I will check my transcript again and I will let you know.
And we are submitting that this is simply impeachment of Dr. Rieders. Demonstrates that the various tissue samples were sent to Dr. Henion by Dr. Rieders.
And the court might recall, and I would refer you to page 41641, line 22, this was the report that he had never seen. Remember there were two reports and there was the--this was the other one, and the one that he was familiar with was never introduced, so I would object to it. It was never identified.
So it remains in evidence; however, is not something that will go before the jury. Mr. Yochelson?
All right. So Mrs. Robertson, this remains in the record, but hold on to it. It doesn't go into the jury room.
It remains as part of the record. It is just something that doesn't go to the jury.
(Nods head up and down.) Since it was used for the legal issue regarding the continued RFLP testing from the console
By the way, is Mr. Neufeld ever going to collect his Bronco console out of my chambers?
KEY QUOTEAll right. Since it appears we are not going to use it for anything. All right. Makes a dandy coffee table. All right. Last one, 617.
If I am not mistaken, your Honor, that document was used to refresh Mr. Oppler's recollection offered by the People. It would be hearsay and I would object
And we were offering it, your Honor, as a prior consistent statement of Mr. Oppler after he had been cross-examined on the issue and therefore--
Mrs. Robertson, would you ask Mr. Byrne to pull the transcript that goes with this, please.
Excuse me, your Honor. Again, we are offering this for--as an exception to the hearsay rule and for the truth of the matter asserted as a prior consistent statement. It also comes in in the alternative for a non-hearsay purpose, simply to show that these items were delivered on the dates that they were allegedly delivered.
My recollection was that is a report saying I went to this house and took this video and someone else was present.
Yes, and your Honor, it is simply a report of no substance other than the delivery of a video, I believe.
Goldberg was present during this presentation of the testimony. I'm going to defer to him.
Actually I think I overheard this part of the testimony. I'm not sure I was actually in court. I may have heard it on the radio, I can't remember for sure now. There was a portion of the cross-examination of Steven Oppler where this particular report came to light and it was brought out that it had not been turned over, the implication being that there was some sinister reason behind it, and what the Prosecution wanted to do and the reason for eliciting this, I believe on redirect, was to show that there is nothing of substance in the report, that it is merely him saying I went to the location at a certain date and time, and stating the specific numbers of the videotape that was used to actually record the substance of the conversation. So the reason that it is being offered is not for the truth of the matter asserted, because there is really nothing in it of truth to assert that is in contest. The purpose is simply to show that there is nothing of substance, there is nothing that he is trying to hide. And we want the jury to be able to look at it for that purpose, to try to refute some of the allegations that were made groundlessly by the Defense in this regard.
Well, the allegation was that it was never turned over. That is true. That is not--that factor is not resolved by simply showing the statement and it is still--Mr. Goldberg's explanation does not overcome the hearsay objections. The fact that it is not offered to be consistent with any prior statement, I don't think that that is a proper basis to introduce any kind of document for tactical reasons. I think certainly the mileage that he wants to get out of it has already been earned in that the jury was informed of the innocuous nature of the document but that still doesn't overcome the hearsay objections that I think are proper.
All right. But I think a foundation was laid here that the witness did say what it was, identified what it was. Given the context of the discussion that went on, I'm going to overrule the objection. All right. Does that conclude that stack?
Okay. The one objection of substance is to 1373 and 1375, 1373 being the description of the sewing patterns. Mr. Blasier.
My recollection of that is, is that Mr. Rubin did testify that these were different kind of ways of making stitching on the back of gloves, as well as stitching the fingers. He did say that he didn't think they looked like that, but he did identify those as various--variations on stitching, so we would offer it for that purpose.
It is my understanding that Mr. Rubin also testified that these were--these are color photocopies as opposed to original.
In other words, it--the images were too unclear for him to make a clear determination. We would submit that pursuant to evidence code section 352, this evidence is misleading because it does not provide that kind of an image, and therefore the prejudicial effect outweighs the probative value. We would ask that it be excluded for that reason.
And we would also indicate that there was no foundation for the admission of this based on the fact that Mr. Rubin simply couldn't identify the images there because the images themselves were not distinct.
No. He said he recognized several of these; didn't recognize all of them as ones that he was familiar with, but he did say that a number of these were common to the trade. So the objection will be overruled. All right. What else do we have? 1375.
Your Honor, Mr. Harris has now endeavored to prepare a redacted Peratis videotape showing the mouthing of the words "I don't remember" and also showing the 14-minute gap about which there was cross-examination of Mr. Oppler. We can mark it as 1375-A, if the court pleases. We can substitute it, if the court pleases. However, the court wishes to do it. I would just as soon substitute it for 1375.
Your Honor, I wasn't in court when that portion of the tape was played, or if it was played, and I don't know whether it was--was that--it was played?
No, no. We played it during the 402 hearing, but I can't remember whether it was played in front of the jury.
And I assume that the gap in the tape was already played in front of the jury as well? All right. Well, our argument as to why that should not be admitted at this time is because we have subsequently put on testimony of two witnesses explaining those events, and there is no relevancy to them. I happen to believe that particularly where allegations of misconduct are being made, and that seems to be what counsel was making, that they should be made in good faith, particularly where they are addressed towards another lawyer, and I don't--I don't think that it is proper or should have been allowed for that kind of questioning to have been made in my view in bad faith without any factual basis whatsoever to suggest that these witnesses or Mr. Oppler was perjuring himself and somehow this witness has been coerced or improperly coached, but it has been done. I think now the record has probably been set straight on that with two witnesses. I don't think the Defense should be allowed to argue it any further and I don't think the evidence that is being offered to support something that isn't true should be allowed.
Mr. Goldberg perhaps might be a little sensitive right now, but if the court will recall, Mr. Oppler was asked whether or not there was a 14-minute gap and he said no or that he didn't recall or that there wasn't one. He was then shown the counter which demonstrated the 14-minute gap. He was also asked whether there was an occasion when the witness appeared to mouth words "I don't remember" which we felt was illustrative of some prior communication that may have happened before this occasion of the taping between someone in the D.A.'s office and Mr. Peratis. Again, when he was shown the videotape, it then refreshed his recollection and he could now appreciate the nature of the question. Both questions were made in good faith. There was in fact a gap. There was in fact mouthing of words that the witness did not recall and I think for that reason it is admissible, your Honor, and we have a redacted copy only of those portions being inserted.
To me it is not a gap, your Honor, where the interview ends, you forget to ask a question and you start up the interview again and then you turn everything over to the Defense. I don't think that that is--that the purposes for which it were introduced are as innocent as counsel claims. And I also don't understand how when the Prosecution had been ordered to redact the tape and had redacted it pursuant to the court's orders, that then suddenly the Defense is allowed to selectively play certain other portions in the tape that they like and then make it appear that the Prosecution somehow improperly redacted it, when initially we wanted to play the whole unredacted version to begin with. I think that this is a misleading issue. I do not believe that the implications of the Defense line of questioning were in good faith. I did not believe that there is a factual basis for them and I don't think that they should be allowed to introduce further evidence or to argue this issue in front of the jury.
Those exact arguments, your Honor, if the court will recall, were made by Miss Clark at the time Mr. Goldberg wasn't here and the court overruled them.
41638, line 1, may be what you were referring to where Dr. Rieder says I have no idea what this is.
All right. The objection will be sustained on foundational grounds. All right. Anything else?
1375, can we simply substitute our redacted version showing--do you want me to mark a new one?
Your Honor, I have some notes here, exhibits 1374-A and B, indicated that these were done before Mr. Sims without the jury present.
And then with respect to 1375--we have talked about that. Thank you, your Honor.
Thank you. Thank you. Can we expect tomorrow to hear from the District Attorney's office as to the thoughts that we mentioned on scheduling?
We will have an answer on that hopefully first thing in the morning and perhaps I can call Mr. Douglas tonight.
It would be my hope and expectation that we can do that because we have an unusual confluence of bad timing calendar wise.
And in view of that, your Honor, though our preference would be to argue some portion of the day on the 29th, the alternative that we suggested, and that is going until perhaps 9:00 or ten o'clock on the 26th, the 27th and the 28th with hopes of at least concluding the Defense argument by the close of business in the evening of the 28th would be appreciated. We would like, however, your Honor, if the court pleases, to in view of the--the particular aspects of this scheduling problem, to consider or sleep on and rethink perhaps limiting the extent of the People's opening and closing argument to perhaps the equivalent of two normal days or maybe ten hours, so that we could perhaps squeeze in the People's argument and maybe an extended day and a half, and then have the Defense portion and the remaining extended day and a half.
And, your Honor, on that issue of limitations on the People's argument, I can give that answer now. The People would object to any such limitations and I will take up the other matter tonight.
I might just make an observation that it is not uncommon across the street and it is not uncommon in other parts of the country.
Earlier this afternoon I filed a motion with regard to Defense--what we would believe would be improper defense commentary during closing argument with regard to Mark Fuhrman's having taking the 5th amendment and with regard to any mention by the Defense of any portion of the tapes, the McKinny tapes and transcripts which the court did not admit. We have also requested that they be warned in advance of a jury admonition to be given in the event that in Mr. Cochran's zeal he let's slip something like that. And I served that upon Mr. Douglas and Mr. Uelmen earlier this afternoon. Can we handle that tomorrow morning?
Well, I expect that there will be vigorous opposition to the unprecedented attempts to impose some sort of instruction that is not warranted by the facts or the law. I neglected, unfortunately, because Mr. Uelmen was involved with arguing instructions, to give him a copy when it was handed to me around 2:30 or so. I would hope, your Honor, that this particular matter can be handled before arguments begin on Tuesday. I don't think that the issue necessarily becomes ripe tomorrow and I would not want to commit Mr. Uelmen without having a chance to show him the document and getting his thoughts.
Mr. Uelmen, I did give him--I put a copy right in front of him, in addition to handing one to Mr. Douglas, so he probably has that.
All right. We'll take it up probably Tuesday morning, and if you recollect, we need to get here early Tuesday to look at tape snippets and other items.
One other matter, Mr. Douglas. Forgive me if I have already mentioned this to you, but I have a little post-it here reminding me to take a waiver from your client tomorrow.
No. They are going to rest--the game plan is that tomorrow out of the presence I will take the waiver from the Defendant. In the presence of the jury both sides will rest and then I will instruct the jury.
All right. We will stand in recess until, so as far as the jury is concerned, ten o'clock tomorrow morning. And let's see, is there anything else we need with regard to tomorrow morning? Let me see counsel tomorrow morning at nine o'clock in case there are any last minute issues on instructions.
By the way, is Mr. Neufeld ever going to collect his Bronco console out of my chambers? ... Makes a dandy coffee table.
I think I took my life in my hands by laying on the counsel table and allowing Dr. Huisenga to perform a manipulation on me.
We have also requested that they be warned in advance of a jury admonition to be given in the event that in Mr. Cochran's zeal he let's slip something like that.
It is the court's desire to do that. Convey that. It is the court's expectation that that is what we are going to do.
I may have heard it on the radio, I can't remember for sure now.