All right. Then the record should then reflect we, starting at 8:00 o'clock this morning, had an informal conference in chambers with counsel regarding jury instructions to see what instructions we could agree upon, which instructions we could not agree upon and determine which instructions we needed to discuss. All right. The court will be working from the proposed jury instructions that were submitted by the People on June 23rd at the conclusion of their case in chief, and we'll go through the objections to this first package by the Defense. All right. Starting with the objection to 2.03, Mr. Uelmen.
Yes, your Honor. Our objection to 2.03, which addresses evidence admitted as consciousness of guilt or falsehood, simply, there is no evidence that would justify the giving of this instruction. The only examples offered by the People to justify this instruction would be, first of all, the statement allegedly made to Dr. Baden with respect to the explanation of the cut on the Defendant's finger.
My recollection is that at the time that was offered, it was offered simply to explain and explore the opinion of Dr. Baden. It was not offered as a statement showing consciousness of guilt. If it were offered for that purpose, the Defendant would have insisted that all of his statements explaining the cuts on his finger be admitted, including the statement he made to the detectives at the time of his arrest. Since it was offered only for the limited purpose of explaining the opinion of Dr. Baden, the jury did not hear the full explanation offered by the Defendant in all of the settings in which an explanation was offered, and we believe we would be entitled to offer that if that were the purpose for which this statement was coming in. The only other suggestion of any evidence that would justify this instruction is the evidence of the statements made by the Defendant to the limousine driver as to the explanation for why he was running late. And once again, to construe this as a false exculpatory statement in a setting in which the Defendant was not being called upon to explain himself in the sense of being confronted with any sort of accusation of crime, we believe that that statement likewise would not justify this instruction.
So we object simply on the grounds that there's no evidence to justify this instruction.
Thank you, your Honor. As the court is well aware, the Kimball case, 44 Cal. 3D, has stated quite clearly that a statement of a Defendant offered against him by the opposing party which would serve to connect the Defendant to the commission of the offense qualifies as an admission in California. And although there may be differences of view by theoreticians of the rules of evidence as to whether that is sound on the theory of, is it being offered for the truth of the matter asserted, the bottom line is that with respect to the cuts, the Prosecution's contention is, those were false statements made by Mr. Simpson to give an explanation for cuts and possibly abrasions that were sustained as a result of his efforts in killing, in murdering these two human beings and that his falsification of statements to justify these cuts and these abrasions serves to connect him through consciousness of guilt to the commission of these two murders. Likewise, the fact that the Defendant apparently told Mr. Park that he was asleep even though the evidence clearly shows that shortly after 10:00 P.m., using his cell phone, he made a call to Paula Barbieri, is evidence of a falsification to justify where he was at the time the murders were committed and to demonstrate, again, consciousness of guilt by trying to form an alibi, if you will, for that period of time. Under the law, these qualify as admissions. When Dr. Baden was asked, this was not 801(B) information which was limited to the basis of an expert opinion. It was evidence which was offered as Mr. Simpson's statement. It qualified as an admission. As the Prosecution, we are the opposing party. The Defendant being the adverse party, we are offering his statement through Dr. Baden against Mr. Simpson. It qualifies as an admission. 2.03 is properly given.
All right. The objection will be overruled. All right. 2.06, this is a modified instruction specifically dealing with the glove demonstration. Mr. Uelmen.
Your Honor, 2.06 refers to the Defendant attempting to suppress evidence or concealing evidence or destroying evidence. The whole--and as I understand it, the Prosecution's theory in offering this instruction is to suggest that the demonstration of the fit of the glove was somehow an attempt by the Defendant to suppress or mislead or conceal evidence in this case. The Defendant did not offer this evidence. This evidence was offered by the People, and the theory on which they were entitled to do that is that this was not testimonial. The whole idea of a Defendant being required to stand before a jury and try on clothing is that it is not testimonial. It is simply observational so the jury can draw a conclusion whether it fits or not based on their observation. If it were testimonial or if it were being offered for a testimonial purpose, we would have a serious constitutional violation of requiring the Defendant to incriminate himself in front of the jury. And the offering of this instruction is a suggestion by the People that they want to offer this demonstration now for a testimonial purpose and to infer from it that the Defendant's conduct in participating in that demonstration can be used to incriminate him of the crime of which he is accused. So we would object to this instruction. We would assert the Defendant's fifth amendment constitutional privilege as the basis of our objection and suggest to the court that giving this instruction and allowing that argument is to create great constitutional peril in terms of using a non-testimonial demonstration for a testimonial purpose.
Yes, your Honor. Just for the record, and the court was made aware, I only got involved in this because the court freed me up yesterday by ruling that the two witnesses, Martz and Whitehurst, were not going to be heard. So I kind of come into the jury instructions a bit late. The People on reflection believe that the instruction that has been offered in the packet that was sent in some time ago should not be the one given. We propose that the standard Caljic instruction of 2.06 more appropriately accommodates the evidence in the case. For example, Mr. Hodgman points out to me there is evidence that has been received that the Defendant, when arriving at the Los Angeles airport from his residence in the late evening I gather of June 12th, was seen to deposit a bag in a trash receptacle at the airport. That certainly would qualify, given the totality of the evidence, as efforts to suppress evidence because it is reasonable for the jury to infer that the Defendant was getting rid of incriminating evidence.
The glove episode, the jury saw it. It is evidence in this case. The jury can determine whether Mr. Simpson, in fact, intentionally made an effort to make it appear that gloves which would fit did not in fact fit; and, therefore, your Honor, there is clear evidence that qualifies as efforts to suppress evidence by the Defendant from which a consciousness of guilt may be drawn. But because there are multiple areas that reflect this effort to suppress evidence, I don't believe the instruction that has been proposed initially which focuses on the glove is appropriate. I think it should be a generic instruction, the standard Caljic with the appropriate striking out of the inapplicable alternative phrases as found in that instruction.
All right. Dean Uelmen, do you have any comment on the--just giving the generic 2.06?
Yes. We oppose 2.06, and People versus Hannon holds that this should not be given if there is not evidence which, if believed, would support the suggested inference, and there's simply no evidence in here of any suppression or attempt to conceal or destroy evidence by the Defendant.
The argument that the testimony of a witness that Mr. Simpson set a piece of luggage down on the top of a trash container is certainly not evidence of an effort to suppress or destroy or conceal evidence. There was no testimony as to what ultimately happened in terms of whether that was then picked up and carried off. There was no evidence that anything was destroyed or concealed at that time. It is the rankest speculation to argue that that supports any sort of inference of the concealment or destruction of evidence. And with respect to the glove demonstration, again, we would urge that there is serious constitutional peril--
Let's not get into that because that's been withdrawn. Okay. All right. Objection to 2.06 will be sustained. All right. 2.21.2, this is witness willfully false. And, Mr. Uelmen, you've offered your own special instruction, Defendant's special instructions 19 and 20.
Well, 19--yes, was offered in substitution for 2.21.2, because we believe the probability of proof standard used in 2.21.2 would confuse the jury in terms of the Prosecution's burden of proving its case beyond a reasonable doubt. So we rely on People versus Rivers to qualify this instruction and would urge the court to give Defendant's 19 rather than 2.21.2.
Thank you, your Honor. Of course, this instruction 2.21.2 has been approved throughout recent case law, most recently, People versus Beardsley at 53 Cal. 3D 68, pages 94 to 95. The Rivers case dealt with a situation of--it's basically a one-on-one case without any corroboration, and so there were concerns raised in the Rivers case. But whatever the facts of Rivers, Rivers is a Court of Appeal case. It cannot overrule under our rules of stare decisis, a decision under the California Superior Court approving 2.21.2. More fundamentally, looking at D-19, the court will notice that this has been truncated by leaving off several things. On the first sentence, the last words that would appear in 2.21 is "To be distrusted." The words in others have been left off. And then, of course, the last part, which is really the big issue, the part dealing with that "You may reject the whole testimony of a witness willfully who has testified false as to a material point unless from all the evidence, you believe the probability of truth favored his or her testimony in other particulars." In other words, it is misleading to this jury to give the proposed D-19 because it suggests that if a jury finds a witness has willfully lied, basically you throw away everything else that witness has said. That is not what the law is. And as a result of Beardsley, as a result of the long recognition of this instruction and the result of the inaccuracy and misleading character of D-19, we submit the pattern standard Caljic instruction should be given.
Yes. Unfortunately, your Honor, my card index I don't think--my card index has not come.
Yes. I think this is--thank you. The issue of materiality as to the credibility of a witness is a question of fact for the jury. The proposition that is posited in D-20, that it is the responsibility of the court to make a finding as a matter of law that something is material, no. 1, is drawn from the perjury charge and the question of whether the materiality element of a perjury charge is a question of law or a question of fact. In the Caljic use note for the most recent modification of 7.20, the Hedgecock case is cited at 51 Cal. 3D 395, and it stands for the proposition that where the issue of materiality is in dispute, it is a factual issue for the jury. I believe Dean Uelmen believes that that is not what Hedgecock stands for and relies on Hedgecock, citing earlier United States Supreme Court cases. But there is a recent case this term from the United States Supreme Court called U.S. vs. Gaudin, G-A-U-D-I-N, which can be found at 115 Supreme Court 2310, which found that due process in the sixth amendment right to jury trial required a trial judge to submit to the jury the question of materiality of Defendant's allegedly false statement in matters within the jurisdiction of a particular federal agency. And this was the case we were, for the record, in chambers and I mentioned that I was aware of a case. Unfortunately, I didn't bring my materials, but someone has sent down a copy of the case. I have it if the court wishes to review it for its consideration of this issue.
The--setting aside the difference between an element of an offense and this question of materiality and due process, requiring a jury to make a finding--in fact, I would be shocked quite frankly if Mr. Simpson were charged with perjury and the court was going to make a decision as a matter of law that the statement in issue was material and the court was going to tell the jury that it was material if they found the statement was made. I would be shocked if Dean Uelmen didn't stand up and tell this court it was unconstitutional under due process and the sixth amendment for this court to do so, would be a question of fact for the jury. It is a question of fact for the jury if any statement about which a witness may have lied is material because then the jury must decide if it is material, they are to distrust the witness in other particulars unless, again, from the probability of truth, they find that the witness's testimony in other areas should be accepted. So it is a question for the jury and that's where it should be left. D-20 should not be given.
Your Honor, if I could return very briefly to D-19, we believe the modifications proposed there are appropriate. First of all, 2.21.2 is ambiguous when it suggests that a witness who was willfully false in one material part of his or her testimony is to be distrusted in others because the suggestion is that the others may be other material parts, and we believe that if a witness is false in one material part of his testimony, in any other part of the testimony, he can be distrusted, and that is what is conveyed by saying simply the witness is to be distrusted period without adding the ambiguous phrase "In others." We believe that the modification suggested by People versus Rivers is appropriate here because we are dealing with the testimony of a sole percipient witness. The only witness to the discovery of the glove is Detective Fuhrman. And we believe to instruct the jury with respect to his testimony in terms of the qualifying phrase of using a probability of truth standard creates the very problem that Rivers was addressing, that of creating ambiguity as to the Prosecution's burden of proving its case beyond a reasonable doubt. So we believe those modifications are appropriate. Now, with respect to the instruction that we requested in our special instruction no. 20, materiality is a legal question. The holding of the Hedgecock case was simply that in a prosecution for a witness making a knowingly false material statement in a government application, the question, as the court held, of whether the Defendant knew the statement was material is a jury question. But the California Supreme Court did not in any way undermine the support for the proposition that even in a perjury prosecution, the question of whether the statement was material is a legal question and it is not inappropriate. And I don't believe the U.S. Supreme Court case in the context of federal prosecution undermines this proposition at all. It is a legal question and the court must instruct the jury as a matter of law what is material and what is not. And, of course, it's a very different question where the Defendant on trial is asserting his right to a jury trial. That question doesn't come up at all in the context of the testimony of a witness. So in the context of giving the jury an instruction that they can disregard the testimony of a witness who has given willfully false testimony with respect to a material part of his testimony, the jury should not be left simply to determine on its own whether the testimony related to a material part of the testimony. The court has already determined that question as a matter of law and should so instruct the jury that it has found with respect to that testimony it was material.
Your Honor, I have one other thing for the record. D-20 singles out an individual witness out of all of the witnesses that this court has heard, and that in and of itself is inappropriate basis for a jury instruction.
All right. Thank you, counsel. All right. I think 2.21.2 is the appropriate instruction to give in this situation. The objections to 19--D-19 and D-20 will be sustained. All right. 250, 250.1, 250.2, evidence of other crimes. And also, we are cross-referencing this to D-22.
I believe we have also requested a special instruction, D-24, which cautions the jury as to the dangers of evidence of other crimes, and we believe that it is appropriate. This language is taken directly from the California Supreme Court decision in People versus Mason. It's a direct quotation of the court's cautionary language with respect to evidence of other crimes, and we believe it is appropriate that the jury be cautioned as to the risks and dangers of this crime as well as to the purposes for which it may be considered. We have also submitted a special instruction 22, a cautionary instruction that this evidence should not be considered unless the commission of the other crimes is proven beyond a reasonable doubt, and we believe that the cases cited support the giving of that evidentiary standard as part of this instruction and that--suggesting that any lesser standard will justify the use of this evidence will undercut the Defendant's right to a case against him being proven beyond a reasonable doubt.
Thank you, your Honor. First of all, your Honor, as the court will see, I did submit, filed this morning some supplemental instructions and proposed special instructions. One of the supplementals is 2.50 modified. The first sentences of that: "Evidence has been introduced for the purpose of showing that the Defendant committed crimes other than that for which he is on trial. Such evidence, if believed, was not received--pardon me--may not be considered by you to prove that the Defendant is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show," and then at the end of the instruction, it concludes with: "You are not permitted to consider such evidence for any other purpose." That takes care of the issues that are covered in 22, 23 and 24. In addition, 22, which is the burden of proof issue, cites cases which are, of course, capital cases dealing with the admissibility of evidence at the penalty phase under 190.3(B), evidence of other crimes, which, for reasons that are only applicable to the punishment issue in a capital case, must be found by a jury beyond a reasonable doubt before the jury may consider such evidence as aggravating evidence justifying imposition of a penalty of death. This evidence that is being received is being received under 1101(B) of the evidence code. It comes in under the foundational requirement of evidence code section 405. The preliminary fact needed to be established is by a preponderance of the evidence. That is the law. That is what 250.1 says and what is defined in 250.2. I submit, your Honor, that 22, 23 and 24 are inapplicable and should be rejected.
All right. Thank you, counsel. All right. The court will give 250 as modified, 250.1, 250.2 and I will decline to give D-22, 23 and 24. All right. 2.52, flight after commission of crime. That has been withdrawn by the Prosecution?
Your Honor, I'm sorry. Could I just interject one thing? In the series of instructions we have in the big packet, just to make a note of, on 2.13, which is the issue of the admissibility of prior inconsistent statements for the truth of the matter asserted, that that needs to be modified to take into account the Peratis video which came up under 1201, such evidence not being admitted for the truth of the matter asserted.
All right. Remind me to do that when we conclude this cycle. All right. Dean Uelmen.
Our objection to all of these instructions I believe, 271.5 and 2.71.7 have been withdrawn.
--instruction is withdrawn and I need a moment to talk further with Mr. Hodgman on 271.7. We're trying to review the record on that.
With respect to 271 and 272, I believe your Honor's previous rulings, that you will give 2.03 with respect to false exculpatory statement should be dispositive. There are no statements that by any stretch of the imagination can be called an admission in this record. Section 2.03 certainly gives the Prosecution the option of arguing that statements were false exculpatory statements and the jury can infer some consciousness of guilt from those statements, but that does not make those statements admissions. And there is no evidence in this record of any admission, and to instruct the jury that there is in the absence of any sufficient evidence to justify a finding of any sort of admission by the Defendant would be error, and we would cite People versus Hannon for that proposition. There must be legally sufficient evidence in the record to support the finding of an admission before this instruction can be given, and giving the instruction would itself suggest to the jury that they are free to consider such evidence as an admission.
So whether there's been an admission, your Honor, for the same reasons under Kimball, statements of the Defendant to Dr. Baden and the statements to Mr. Park regarding being asleep constitute an admission because the People used those statements to connect the Defendant to the commission of the offense through other evidence.
We certainly have what is an appropriate instruction, your Honor, but 2.03 does not create the understanding of the nexus; that is, what is an admission, what is it about a statement of a Defendant that can be used by the Prosecution to argue that the Defendant is guilty of the offense. It is, in fact, a fact in the eyes of the law a statement by a Defendant which, with other evidence, tends to connect him to the commission of the offense qualifies as the kind of statement that can be admitted for the jury's consideration. That's what 2.71--2.71 is all about. So there's nothing--they are not instructions that are in lieu of each other. They are parallel instructions to deal with sometimes different situations, but sometimes very similar situations.
Well, let's go back to what we classically understand to be an admission, an oral admission by a Defendant. Can you point to anything in the record here that even comes close to that?
I understand your position. But I assume Mr. Hodgman or Miss Clark or Mr. Yochelson or anybody else would whisper in your ear--
That's not the thing I'm concerned about. I think it's an interesting issue from a theoretical standpoint because hearsay is classically defined as--
Which is why I have the two most theoretical thinkers here discussing this.
KEY QUOTEAre you referring to Mr. Yochelson? I don't think--the court is not referring to me. I don't think I'm that theoretical. But it's a situation where 2.03 certainly is there for us to argue the significance of it. Legally, 2.71 is an accurate statement of law.
Yes, legally under Kimball, what I indicated. What the court is really suggesting is that it is not the classic kind of situation that is clearly a statement which is, on its face, inculpatory, which is the classic, being offered for the truth of the matter asserted. So, for example, if the Defendant lives out of state and is charged with a crime that was committed in Los Angeles county and the Defendant made a statement to the police that, "I was in Los Angeles county during the evening hours of June 12th, 1994," that would be an admission because it would tend to connect him in some tangential way to the commission of the offense. If he went on to say, "And when I was in Los Angeles on June 12th, 1994, I was down in Long Beach at some event when the crime in question took place in Brentwood," that would qualify as an admission. That's why it's not a confession because it is not an acknowledgment of each element of the offense, but it qualifies as an admission because we can take the part that applies to him being in Los Angeles county at the relevant time and connect him to the offense even though he also wants to claim through an exculpatory portion that it is not him who is the perpetrator. Mr. Hodgman does point out--he didn't need to whisper. He wrote a note to remind me to raise the issue of Shipp's dream comment. I think the court indicated to us in chambers you believe an instruction is going to be appropriate as to how the jury should evaluate that testimony, and that would itself seem, if the jury finds it to be the nature which the court feels would be something that they can consider, that would qualify as an admission as well under 2.71. So from a theoretical standpoint, your Honor, I think Kimball is not a well-decided case and 2.03 takes care of it. But under stare decisis, Kimball controls. 2.71 applies. It is not redundant to 2.03 with the dream issue. It is clearly not redundant, 2.03, and on that basis, your Honor, I ask the court to give 2.71 and 2.72.
All right. Counsel, I'm going to take this one under submission. Let me--Mr. Kelberg, would you approach just for a moment and let me give you a draft--you can share one with Dean Uelmen--regarding a special instruction regarding Mr. Shipp. Contemplate that, and we'll come back to it. All right. Let's move on to 3.31 and 3.31.5, mental state. I take it you want me to give 290?
Your Honor, I find 290 to be one of the most favorable instructions to the Prosecution.
Correct, your Honor, in accordance with our conversation in chambers. We should have it early this afternoon available.
And that is over objection of the Defense because I'm going to direct the Prosecution to submit the 3.31.5 including the mental states or specific intents that are necessary for murder in the first degree and murder in the second degree. So the Defense objection is noted; is that correct?
Your Honor, could I briefly add one other thing for the court's consideration on the admission issue Mr. Hodgman points out to me, just a piece of evidence, not a legal argument?
All of the 1101 evidence that has been received, which includes statements of the Defendant which I believe are made in tape recordings as well as interviews with the police officer or police officers who testified, would qualify as admissions since the 1101(B) evidence is admissible for the purposes of proving the Defendant's guilt of the charged offenses.
Your Honor, I would like to comment on that because I think that highlights the risk of prejudice of giving 2.71 and 2.72. Statements of admission of prior similar crimes that are offered for the limited purpose of showing the intent or motive or common scheme or plan are not admissions of the crime for which the Defendant is on trial. The 271 and 272 specifically address the admission of the offense that the Defendant is being tried for and 272 cautions the jury with respect to a finding of guilt based upon that evidence.
To suggest to this jury that there are any admissions on this record is very dangerous and highly prejudicial to the Defendant. The only evidence the Prosecution is pointing to are statements that they are going to argue are false and because they are false, you can infer a consciousness of guilt, if they are true, they are exculpatory statements, they are not admissions; and they're trying to set up a double bind and say to the jury regardless of whether you find these statements true or false, you can use them against the Defendant, use them as an admission if they're true, use them as a false exculpatory statement if they're false. You can't have it both ways. They are not admissions. They are exculpatory statements.
All right. We'll contemplate this one. All right. 8.30. And, counsel, I'd like to hear the argument concerning whether the court should instruct on lesser included offenses, which would be second degree murder in this case.
We are strongly opposed to this instruction, your Honor, because we believe there is simply no evidence on this record to support a conviction of second degree murder. The only thing we have that can be offered by the People is speculation, speculation which finds no factual basis. And, of course, the bedrock principle for the giving of a lesser included offense instruction is that there is evidence to support a verdict of a lesser degree. The danger of this instruction is, in the face of a complete denial of participation in the crime and a consistent position asserted by the Defense throughout these proceedings that he was not there, that he did not commit the crime, that position is substantially weakened by offering the jury an instruction that suggests that based on this evidence, they could find the Defendant was there, but had a state of mind that required a reduction in the level of seriousness of the crime. We rely on the hardy case in which the California Supreme Court recognized that the court is not required to give the lesser included instruction over the objection of the Defendant, and the Defendant in this setting is willing to make a personal waiver on the record to indicate that he is personally opposed to the giving of this instruction and that he waives any objection to the failure of the court to instruct on a lesser offense. The problem with this instruction is that without any evidentiary support, it invites the jury to compromise. It invites them, if they are having doubts and difficulties in concluding that there was a first degree murder here, that they can compromise and return a verdict of second degree. Now, the willingness of the Prosecution to accept that kind of compromise cannot bind the Defendant. The Defendant continues to assert his position that he is not guilty. If these crimes were committed by another person, they are premeditated murders, and the Defendant will not willingly accept a compromise verdict that finds him guilty of second degree murder in the absence of any evidence in this record that this is a second degree murder.
Thank you, your Honor. I must confess, if the court will recall, I think the first time or second time maybe I had the privilege of coming down on this case to argue motions with the court, this came up in the context of the photograph admissibility question of the Coroner's photographs, and I think the court even asked me, "Well, am I obligated to give a voluntary manslaughter instruction," and I just gave some casual response. But I think the bottom line was no because there was no evidence that a reasonable person's passions and so forth would be raised. I did mention at that time the Wickersham case, 32 Cal. 3D--and I don't have the page number off the top of my head and I didn't bring the materials. I did read the hardy case after Mr. Uelmen, Dean Uelmen raised it when I was down here that time. And if the court reads the hardy case, it does not stand for the proposition that the court does not have a sua sponte duty to give a second degree lesser included murder instruction when, in fact, the evidence is sufficient to warrant second and not as a matter of law sufficient to only warrant first. Wickersham says that there is such a duty, and the reason there's such a duty is very important. It doesn't matter what the Defendant wants or doesn't want. What the courts are concerned about is, jurors are presented evidence. They have to decide if it's a first degree murder. By Dean Uelmen's statement that he just made, what if they have doubt and uncertainties about it being first degree murder? If you give them only first degree murder or not guilty as the alternatives, those jurors--those jurors are faced with the following options: I believe this man is guilty of murder of a heinous offense, but under the law that his Honor has given us, I cannot find beyond a reasonable doubt that it was a premeditated, deliberate murder. What alternative do I have? Do I find him guilty of a murder in the first degree that I do not believe has been proved because I believe he committed some crime even if not that one, but that's my only alternative that would find him guilty, or do I find him not guilty, let a murderer go free because I followed my obligation under the law and applied that burden of proof to the premeditation, deliberation element and found I couldn't find it beyond a reasonable doubt? Jurors are not to be put into that position. Jurors are here to render justice based upon the evidence. The Defendant is not entitled to an acquittal where the evidence proves he committed a crime, but not the full extent charged, nor is the Defendant someone who should be penalized by being convicted of an offense higher than what the evidence shows because the jurors have been given only that option where they believe he is guilty of a serious crime even if not that one.
All right. Well, then let's examine what's in the record though. What facts do you argue from that there is a possibility or there's something that would support a second but not a first or a first but not a second?
Your Honor, let me point out, first of all, I'm not going to be down here arguing. That's the one thing I tried to make clear to everybody in our group of lawyers. I don't want to take away from what Miss Clark may argue to this jury and I don't have the full opportunity of knowing all of the evidence. But let me start with just some obvious aspects. No. 1, the court always looks to evidence of planning, motive and method of killing as evidence that suggests premeditation and deliberation.
Exactly, your Honor. If one looks at Mr. Goldman's situation as to the manner of the killing, as to motive, as to planning for him, one could see that a juror who is a reasonable juror may not be convinced even if we believe the evidence proves beyond a reasonable doubt, even if perhaps other jurors would find beyond a reasonable doubt that such evidence demonstrates premeditation and deliberation, but Mr. Goldman at the wrong place at the wrong time was the victim of a murder where there was not that careful weighing and consideration of the pros and cons of killing. The evidence, for example, that I assume is inferential to argue premeditation and deliberation, bringing the knife to the scene, bringing a ski cap to the scene, wearing gloves to the scene and so forth, a jury may find--and I'm not suggesting that they should find. I'm merely indicating what they may find--that that is not sufficient beyond a reasonable doubt to convince them that the Defendant carefully weighed the pros and cons of his actions, but rather, once there, without that kind of careful weighing and in a moment of sheer anger and rage, killed these two people, murder in the second degree. That's the issue for this jury to decide. This court is well aware of all the evidence because this court has had to be here for every day of this trial. And I submit to the court that it is clear these are not, as a matter of law, remotely close to being murders in the first degree that the court can say as a matter of law. These are questions of fact for the jury. They have to look at evidence of planning. They have to look at evidence of motive. They have to look at the means of the executions of these two human beings. They have to look at what effect does rage and anger play in a person's ability to carefully weigh the pros and cons of that person's actions. This jury should not be placed with that Hopson's choice of either convicting this man of first degree where they don't believe that has been proved beyond a reasonable doubt, but they know he's a murderer, or set this man free because the law says he's either a first degree murderer or you've got to set him free. They should not be placed in that position. This court's obligation is to see that these jurors can render the true and just verdicts in this case, and without that second degree murder, under these circumstances, they are not given that option, that benefit. They are forced into positions that the law does not require them to be forced into. May I have just a moment with Mr. Hodgman?
Yes, your Honor. The Wickersham case says that the court should instruct on the lesser offense of second degree murder when the evidence raises a question as to whether all of the elements of the charged offense were present. When we look at the evidence in this case as to how these murders were committed, there is not one shred of evidence that the People can point to suggesting that Ron Goldman was simply in the wrong place at the wrong time. There is no evidence that suggests which of these victims or whether both of them were the target of the perpetrator of these murders. It's just as plausible on the evidence that the People have presented to suggest that Nicole Brown Simpson was in the wrong place at the wrong time when somebody came to murder Ron Goldman. There is no evidence in this record of any argument, there is no evidence of any struggle other than the struggle that immediately preceded the infliction of the fatal wounds. The evidence that the People are going to rely on to suggest that this was a premeditated murder are the use of gloves and the bringing of a weapon to the crime scene. And those elements apply to both murders, and the position of the Defendant is that, yes, these are premeditated murders that the Defendant did not commit. And to speculate--to speculate just on the basis not of the evidence, but of a tactical position that the Prosecution chooses to assume we contend prejudices the Defendant because the Defendant's denial is undercut by the giving of that instruction. That instruction suggests to the jury an inconsistency in the Defendant's position that he was not there, but perhaps if he was there, he didn't have the requisite state of mind. The Defendant does not want the court to even suggest to the jury that if he was there, they can speculate on the state of mind he might have had if he indeed was the perpetrator of this crime. So by giving that instruction, you are contradicting and undercutting the Defense presented by the Defendant in this case. And we believe that under hardy, the court is clearly entitled--as the court said, the court need not deliver the instruction where a Defendant expresses a deliberate tactical purpose for objecting to the instruction. We are expressing that purpose. We are objecting in the strongest possible terms because we believe the giving of this instruction will undercut the Defense.
All right. Thank you, counsel. Looking at the Anderson criteria, the court notes that the Prosecution will likely argue that going to a crime scene at this time of year in southern California wearing gloves, taking what appears to be, from the medical evidence, a very strong, very sharp cutting instrument, having a watch cap, which one could surmise is part of a means of concealment or clothing of concealment, the colors of the threads that are found indicating dark color clothing, that this could be a classic waiting, lying in wait premeditated murder. Also, looking at the physical evidence at the scene, the escape route going out the back, the bloody trail ending at a place where it would be logical to assume someone would park an automobile would be argued by Miss Clark probably an approach from the alley rather than from the street side. So there is a plausible, from the record, first degree argument that can be made from this evidence. Looking, however, at Ronald Goldman, I don't think there's any reasonable interpretation of the evidence that would not indicate that Mr. Goldman's presence at the Bundy crime scene was by sheer chance given his--the testimony that we had that he had plans to meet another friend to go dancing that night or go nightclubbing and that he was dropping Juditha Brown's glasses off at Nicole Brown Simpson's residence surely as a goodwill gesture by the restaurant staff and his presence at the Bundy crime scene was certainly not planned. So there is a possibility, a plausible argument that can be made that he was not the original intended victim in this killing and that his presence was, as Mr. Kelberg stated, wrong place, wrong time. And that while there may be physical evidence of an intent to kill from the nature of the wounds that are inflicted, there is insufficient showing or there may be an insufficient showing of the requisite premeditation. So I will instruct on both first and second as a lesser included. All right. 8.83.2, special circumstance I believe.
Your Honor, just for the record, we were going to submit in addition 8.31. 8.30 was in the original packet. That is second degree murder with expressed malice. 8.31 defines second degree murder as implied malice. That would be supplemented with our materials this afternoon.
All right. That's noted. All right. 8.83.2. There was a conflict between 8.83.2 and 17.42.
All right. All right. Then that concludes our discussion of the Defense objections to the instructions offered by the Prosecution.
Your Honor, could I also put on the record two things? No. 1, I don't know if the court wanted to go over that 2.13 instruction. You said when we finished this segment--I forget the court's wording. I don't know if you want to do that now. The other thing, I'm somewhat troubled by 1710 which was offered in the original packet.
And again--I don't know--different people have different positions, the courts have different positions and so forth. But just, 1710 is not exactly the best wording for a situation of where it's a single charge and the question is degree and then the question of the forms that go to the jury. So I'd just like to, on the record, to keep open what might be the most appropriate instruction to the jury with respect to the number of possible verdicts and so forth and that maybe we can discuss that a little further this afternoon. The court is not as troubled as I am.
No. Any time you say the stone instruction, I mean any trial judge shudders at the mention of the stone instruction. All right. Well, we did not discuss that in chambers. So we will take that up. But let's finish what we have organized before us at this point. All right. Defendant's proposed jury instructions. The Defense is proposing in addition 2.11.5, unjoined coconspirators. And, Mr. Uelmen, I'm referring to page 3 of your request.
Yes, your Honor. Our position is that there is evidence in the case indicating that a person other than the Defendant may have been involved in the crime, and this instruction simply informs the jury that they should not consider why that other person is not being prosecuted in this trial. We believe there is evidence from which the jury can infer that other persons were involved, notably through the testimony of Dr. Henry Lee with respect to other footprints at the crime scene. So it is appropriate for the jury to be instructed with respect to the consideration of evidence of other persons involved.
All right. Can you point to anything else in the record other than Dr. Lee's testimony concerning additional footprints?
Yes. Evidence with respect to the infliction of the wounds, whether there were two knives used in the infliction of the wounds. I believe the--there is evidence with respect to Mr. Heidstra that could be construed to be support of the presence of two perpetrators as well because Mr. Heidstra testified to hearing two voices, and we don't know with precision whether he was describing events preceding the murder or events immediately following the murder, that he heard two voices arguing and he heard the clanging of the gates. We believe that supports the presence of two persons. We also have unidentified fingerprints found at the scene that have not been associated either with the Defendant or any other identifiable person.
Your Honor, I think the intent of this instruction is pretty clearly understood. It is a situation where you have identified individuals, but for the jury, there is perhaps only one Defendant. So in a case with three obvious individuals involved, the liquor store robbery, three people go in at gunpoint, money is taken, but this jury is asked to decide the guilt of a single individual. The jury is not to speculate why we only have one person here for a crime which is clearly established to be one involving multiple people. This jury instruction would seem in my judgment to convey to the jury in much stronger terms than what even the best evidence the Defense has just indicated would support the possibility of a second person being involved and it is not an appropriate instruction. It is a situation that is well-covered by 2.90 because our responsibility is to prove that Mr. Simpson is a murderer of these two human beings beyond a reasonable doubt. If the Defense wants to argue that because they believe the evidence shows there is a second killer, that that raises a reasonable doubt as to whether Mr. Simpson is involved at all because, if there are two, Mr. Simpson's not one of the two, Mr. Simpson's not involved, two killers suggesting someone other than Mr. Simpson. 2.11--2.11.5 is unnecessary. Its purpose is not needed in this situation. The Defense is really raising an issue as to reasonable doubt of identity of Mr. Simpson based upon a contention that there were multiple killers. May I have just a moment, your Honor?
Yes. If you look at 2.11.5, the `89 revision, the second paragraph: "There may be many reasons why such person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he or she has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the Defendant on trial or defendants on trial." I think it's clear from that paragraph, your Honor. And by the way, that is not a bracketed paragraph. That is not one that is applied only if applicable. I think that clearly indicates the purpose behind this instruction, and this case does not fit within that criteria.
How do you address the evidence, however, that Dean Uelmen has raised, that Dr. Lee's testimony that there may have been second, other footprints there, the fact that we do have unidentified fingerprints that cannot be made to anybody that we know of and the testimony by both pathologists that two knives cannot be ruled out?
It seems to me that the Defense wouldn't want an instruction like this. It seems to me the Defense wants to have the jury constantly thinking about two killers, but two killers in the sense of by reason of their being two killers, it tells you Mr. Simpson is not one of the two killers. He is not a killer by nature of the fact that these people were killed by multiple people. That's really what they're really trying to focus on, not, "Hey, you can't consider what these other people are facing in this case because you're solely to decide Mr. Simpson." They want the jury to focus on that there are these other people because that raises in their judgment a reasonable doubt as to his guilt. This instruction really undercuts what it is they want to argue from their being evidence of a second killer.
I know it in some aspects, but as to this particular instruction, I am not. I know it has spontaneous utterance issues and other things.
Your Honor, we have no objection to giving the revision in the Caljic supplement 2.11.5. In fact, we find that is actually a better instruction for our purposes. And our purposes are clearly identified by Mr. Kelberg. That is, we certainly are going to suggest to the jury that there were two killers. But that's all the more reason for the jury not to speculate about the reasons why this other person is not here on trial. The point of this instruction is that you should not, for example, conclude that perhaps there wasn't another such person because that person isn't here on trial, that ordinarily both of the people who committed a murder would both be on trial and the fact that this other person isn't on trial leads to some sort of inference that this other person doesn't exist. That's precisely the prejudice and the inference that we want to avoid and that we're entitled to avoid by the giving of this instruction, to say to the jury, don't even worry or think about why that other person isn't here on trial. But that doesn't say, don't consider or think about the possibility that there was another person involved in a commission of this crime.
All right. Thank you, counsel. Let me read the Farmer case because it's cited in the use note.
And, your Honor, may I have an opportunity to read it as well and offer if I have any comment on that as well?
No objection. 3.31, I think we've agreed that--how that's going to be modified. All right. 4.50, alibi.
Yes. Your Honor invited us to consider how 450, the Caljic instruction on alibi, might be modified, and I would invite the court's attention to special instructions D-31 and D-32, which I think address much more specifically the Defendant's theory of the case and clear up the issue that we previously identified with respect to the ambiguity of 450 in the context of this case. These special instructions make it clear that the Defendant does not have any obligation to offer evidence that he was not present at the time and place of the commission of the crime and that if the evidence raises a reasonable doubt whether he was present, then he's entitled to an acquittal and the burden remains on the Prosecution to prove that he was present. And special instruction D-32 instructs the jury how to consider the evidence that may raise a reasonable doubt whether the Defendant was present, making it clear that he doesn't have to show he was somewhere else at a specific time that the crime was committed. We believe that the Defendant is definitely entitled to an instruction with respect to the alibi defense, which is really the theory of the Defendant's defense, and the Defendant is entitled to an instruction that conveys to the jury how it should consider the evidence presented by the Defense in this respect. We believe that all of the evidence does raise a reasonable doubt whether the Defendant was present at the time and place that the crime was committed and the jury needs to be instructed that the Defendant does not bear the burden of proof with respect to this evidence, that all they need is a reasonable doubt and that considering all of the evidence, such a reasonable doubt would require an acquittal.
Your Honor, with respect to 4.50 and based upon I think the court's recommendation or the court's concerns as expressed during our informal conference, if the court wishes to modify the first phrasing of that instruction and instead of what it presently says in the patterned instruction, say that "Evidence has either been received or been introduced for the purpose of," we will have no objection to that. As it is phrased, we think it is misleading. Even if not technically erroneous or in error under the law, it is very misleading to a lay jury. With respect to D-31 and D-32, I'd invite the court's attention to People's special instruction no. 2 which says the Prosecution has the burden of proving beyond a reasonable doubt each element of the crimes charged in the information and that the Defendant was a perpetrator of any such charged crime. Between 4.50 and our special instruction no. 2, the Defendant is getting every benefit of what he is entitled to receive. That is, the jury has a clear understanding that there are two issues the Prosecution must prove beyond a reasonable doubt and the elements of the offense is just--are just one of the issues that we have to prove. We must prove identity as well. Counsel's proposed instructions are--D-32 is clearly argumentative and focusing on specific facts. These are so-called sears, s-e-a-r-s, type instructions. But actually if the court looks at People versus Garceau, G-A-R-C-E-A-U, 6 Cal. 4140, starting at page 191, the court will note actually from page 192 how in People versus Wright, W-R-I-G-H-T, the Supreme Court rejected a special instruction that similarly pinpointed specific evidence rather than a particular theory of the Defendant's case. Such an instruction properly is argumentative because it would invite the jury to draw inferences favorable to the Defendant from specified items of evidence on a disputed question of fact and, therefore, properly belongs not in instructions, but in arguments of counsel to the jury. Defendant--the special instruction of the Defendant in Garceau could be read to embrace stated principles of law involving reasonable doubt; and if so, it was repetitious of other instructions given, notably, 2.90, which this court has recognized as the best available definition of the standard of proof beyond a reasonable doubt. It goes on in Garceau in dealing with another special instruction offered to find that the trial court properly excluded this special instruction which selected certain evidence and implied the weight to be deprived therefrom, thus creating the same type of argumentative instruction disapproved in Wright, the instruction was also repetitious of the standard cautionary instructions given to the jury. In this case, it was 2.70 and 2.71.7 and therefore properly refused.
The Supreme Court in Freeman, F-R-E-E-M-A-N--and I have a citation around here somewhere, if I can dig through my pile. Let's see--8 Cal. 4450, page 504--and the court is well-aware I think of the Freeman case and the moral certainty language, but it makes note on 504 that although modifying the standard instruction is perilous, they do in this limited instance suggest a modification. They then go on to say making these changes and no others would avoid--both avoid the perils that have caused appellant courts to caution trial courts against modifying the standard instruction and satisfy the concerns the high court has expressed regarding that instruction. And as the court is well-aware, the legislature and urgency legislation just passed on--I'm trying to get the date. Our memo came down August 31, `95. It became effective July 3rd, 1995--the new 1096 language which is in conformity with what was the modified Caljic 2.90 following the Victor versus Nebraska, Sandoval versus California decision from the U.S. Supreme Court. But what's important to also note is 1096(A), which says:
"In charging a jury, the court may read to the jury section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given." So taking into consideration all the case law that I've discussed, the legislative changes and intent behind 1096(A) and the fact that counsel's statements are either argumentative or covered by what we agree should be given, 4.50 as modified, and the special instruction no. 2 about our burden of proof on identity, 31 and 32 should be refused. Thank you, your Honor.
Your Honor, the Prosecution is asserting a position that has been specifically rejected again and again by the courts of California, that with respect to the Defendant's theory of the case, all you have to do is give a reasonable doubt instruction. The law clearly is--and we cite People versus Williams as support for our special instruction no. 32. Upon request, the court is required to give any correct instruction on the Defendant's theory of the case which the evidence justifies no matter how weak or unconvincing that evidence may be. Special instruction no. D-32 is an instruction that specifically tells the jury what to do with the Defendant's theory of the case. The Defendant's theory of the case is that he did not have sufficient time or opportunity to commit this crime, and the jury needs to know that the Defendant does not bear the burden of proof on that issue. He doesn't have to prove to them that he didn't have sufficient time or opportunity to commit the crime. But if they simply have a reasonable doubt whether he had sufficient time and opportunity to commit this crime, then he is entitled to an acquittal. And quite clearly, that's all that instruction no. 32 says. We believe we are entitled to this instruction because this is the Defendant's theory of the case and the evidence justifies this instruction.
All right. Thank you, counsel. All right. I agree that the Defendant is entitled to the alibi instruction. I will give 4.50 as requested; however, modified to address the concerns that we discussed in chambers given the first section, first phrase of that instruction. The instruction that the court will give will read as follows:
"Evidence has been received for the purpose of showing that the Defendant was not present at the time and place of the commission of the alleged crime for which he is on trial. If, after consideration of all the evidence, you have a reasonable doubt that the Defendant was present at the time the crime was committed, you must find him not guilty." The court will give that instruction as modified. All right. I believe that that concludes our discussion of the additional Caljic instructions.
Yes. I'm not going to give 31 and 32. All right. And we need to now address the special instructions that the Defendant has offered, D-1 through 32. And, counsel, we're going to take a 10-minute break at this point.
You can't have it both ways. They are not admissions. They are exculpatory statements.
Which is why I have the two most theoretical thinkers here discussing this.
Mr. Goldman's presence at the Bundy crime scene was by sheer chance given his — the testimony that we had that he had plans to meet another friend to go dancing that night or go nightclubbing and that he was dropping Juditha Brown's glasses off at Nicole Brown Simpson's residence surely as a goodwill gesture by the restaurant staff.
Do I find him guilty of a murder in the first degree that I do not believe has been proved because I believe he committed some crime even if not that one, but that's my only alternative that would find him guilty, or do I find him not guilty, let a murderer go free because I followed my obligation under the law?