Your Honor, if we could just ask the court to consider one very brief and very straightforward addition to the combination of D-7 and People's 3 that your Honor indicated you would do. Our concern is that there is a potential here to seriously mislead the jury by telling them that frequency estimates are presented in order to assess what's the significance could be attached to testing results when the same results could also be explained by laboratory error, and we would ask the court to simply add a sentence that comes straight out of the national research council report to tell the jury that frequency estimates and laboratory error are different phenomena and both should be considered in determining what significance to attach to bloodstain testing results. We believe that that cautionary note is justified by the NRC report and is certainly justified by the evidence in this case and will avoid misleading the jury that only frequency estimates are relevant in assessing the weight that they should give to testing results.
Yes, your Honor. Mr. Clarke, who is much more familiar with the contents of the NRC report, tells me that there were a number of recommendations made in the NRC report, only one of which appears to be the focus of this jury instruction, one of which was jurors should be selected based on their familiarity with DNA. So the fact that the Defense wants to highlight a recommendation and take it into the form of a jury instruction when, in fact, there is nothing within the contents of the NRC report which says that that is in fact required--what is, in fact, required is that the jury be apprised, as they have been through the course of testimony is inappropriate. It singles out one particular aspect. And laboratory error, your Honor, applies to any scientific evidence. I was thinking in an area that I did have some involvement with, the Coroner's testimony. There were lab tests run for blood alcohol and blood content on specimens from the two decedents. Laboratory error can apply to the accuracy of the finding--
Laboratory error can apply to the finding of, as I recall, .02 for the blood alcohol of Nicole Brown Simpson. To isolate this and bring it in the form of a jury instruction highlighting to the jury one factual issue on which the jury has been fully apprised is inappropriate. And, your Honor, if the court wants to see--if the court has not, we prepared the modified instruction that the court wished and I have it here if the court wants to take a look at it to see it in its final form.
I have. And I've also attached the other instructions that we were going to provide the court.
One brief response and we'll submit this matter, your Honor. The risk of isolating one explanation is a risk that arises from the present instruction that the court proposes to give by just saying that frequency estimates should be considered. These are estimates that range in one phenomena, and to say to the jury, consider that in assessing what significance you should give to these results without at the same time offering the alternative explanation of the possibility of laboratory error is highly misleading, and the very fact that jurors are not acquainted with DNA technology, that they haven't been prescreened because they understand this phenomena simply undermines the importance of not misleading them. And that's precisely the point that the NRC report is making and that's a point of view that we think is very important for this jury to hear.
All right. Mr. Uelmen, one of the problems I'm having though is that, one, the NRC is a scientific document not written by lawyers or judges and does not address specifically the issue of jury instructions. The case that you cite to me, State versus Bloome, Justice Page's concurring opinion, does include a jury instruction which does not include the language that you're asking for. So unless--is there any case that you can cite to me where there's been an Appellate Court approving the instruction that you're seeking, because what you've cited to me here does not support the instruction you request.
All right. At this point--counsel, if you have something else you want to submit to the court, fine. But at this point, based upon what's been presented to me, that's the instruction I'm going to give. All right. Let's move on to D-9.
We'll make additional submission, your Honor. But we believe the NRC report is really addressing the question of what use of this science should be made in the courtroom, and the whole point of the report is to highlight the dangers that are presented when jurors are asked to assess this kind of evidence, and we believe one of those dangers is simply the focus on one half of the equation and not on the other.
Your Honor, the People's objection to D-9 is multifaceted. No. 1, of course, we start with Caljic 2.11 regarding the lack of necessity for either side to call all witnesses. D-9 is focusing on the Prosecution and only the Prosecution without citation, of course, to a well-known line of cases arising from Vargas, People versus Vargas, V-A-R-G-A-S, 9 Cal. 3D, dealing with the right of the Prosecution to talk to the jury about the failure of the Defense to call logical or material witnesses, of course, other than the Defendant when such evidence should or was available to the Defense. We feel that the appropriate instruction to give in this area is the proposed Defense instruction D-10 to which we do not object and then the right of counsel for the Defense and the Prosecution to argue to the jury the failure of one side or the other to produce what each side perceives to be logical or material witnesses that the other side didn't perceive and for the jury to draw the unfavorable inference that that side arguing the position wishes the jury to draw. That's where it should be. D-10 is an accurate statement of law. D-9 is not. It is slanted. It is one-sided. It is inappropriate.
Your Honor, there's a reason why this is one-sided, and that is simply that the Prosecution has the burden of proof. It cannot be said that the Defense might be expected to produce a witness because the Defense has no obligation to present any evidence or witnesses. This instruction is motivated primarily by the failure of the Prosecution to call the Coroner. How many murder cases has your Honor ever heard of in which the Coroner who conducted the autopsy was not called as a witness, but instead, another medical examiner was brought in to describe the results of the autopsy? And we believe that--
No. We had a situation here in Los Angeles County where a very hard-working deputy medical examiner died and there were dozens of murder cases that involved his testimony that other people had to come in and testify to. So it's not an unusual phenomena when the person is not available.
And I'm sure when they called another medical examiner in, the jury was told that the initial Coroner had died. But here we have a situation where it is fair to say the Prosecution, which has the burden of proof in this case, might be expected to produce the Coroner who conducted the autopsy. Their failure to do so justifies an inference that the testimony would have been unfavorable to the Prosecution.
Excuse me just a second. Dean Uelmen, what's your posture on D-10 as it relates to--excuse me--what is your position as to D-10 standing by itself?
Our fear of D-10 standing by itself is the fear that it will turn around to sting us for reasons that are beyond our control. D-10 says that if a party offers weaker and less satisfactory evidence when it is within their power to produce stronger and more satisfactory evidence, the evidence should be viewed with distrust. Now, that's fine as far as it goes--as long as the jury knows what stronger and more powerful evidence a party has the power to produce. The one setting in which we were unable to produce stronger and more powerful evidence and had to produce weaker and less satisfactory evidence related to the testimony of Laura McKinny where we had to simply summarize the contents of transcripts and tape recordings when the jury was aware of the existence of those transcripts and tape recordings and no explanation was offered to them as to why those transcripts and tape recordings were not produced in court. And, of course, the reason they were not produced is because the court ruled that they were inadmissible. That's all we want the jury to know, that they didn't hear those tapes, they didn't see those transcripts because the court ruled they were inadmissible. With that caution, special instruction D-10 is a perfectly appropriate instruction that we do want given to tell the jury that if a party has the power to produce stronger and more powerful evidence and they produce weaker and less satisfactory evidence, then that evidence should be viewed with distrust.
May I briefly respond, your Honor? Even though whoever will be arguing this case to the jury is not down here, I feel absolutely comfortable in telling this court that there will be no argument made that D-10 should be applied to the failure of the Defense to produce more than was produced from the McKinny tape transcript available source or sources. That is not going to be the application of this instruction. What is going to be the application of this instruction will involve why Dr. Rieders, for example, was called to talk about Mr. Martz' results rather than bringing in the man or the woman who obtained the stains from the various samples that were collected from the gate and the socks, did the testing as appropriately laid out in the view of Dr. Rieders and concluded that those stains were from an EDTA preserved blood source. When you don't bring in that person and you bring in Dr. Rieders instead, you've produced far weaker evidence than was available to you and the jury may draw the logical inference. And the fact is, the Defense put on evidence. This is not burden of proof stuff. This is you decided not to rest on the state of the Prosecution's case. You decided to put people on. Well, when you put people on and you don't put the best people on, you can have the jury draw a negative inference. And with respect to the Coroner, no problem, because by putting on evidence, they could have called Dr. Golden. And I would anticipate whoever argues this case on our behalf to the jury might point that fact out, if he had so much to offer, bring him in. They had the power to do so. So the instruction is a perfectly correct statement of the law, perfectly appro--D-10 that is, perfectly appropriate for the argument of counsel. The McKinny instruction is improper. It is an argumentative form of an instruction and it is highlighting a specific area, and we are not by any way, shape or form going to suggest that the jury should find a negative inference for the Defense case from the failure of them to put on more than they did with respect to that material. Thank you, your Honor.
All right. Thank you, counsel. All right. The offer of D-9 will be rejected as not phrased in a neutral manner. I will likewise decline to give the special proposed instruction regarding Laura hart McKinny. However, if the Prosecution chooses to argue the line of argument that Mr. Kelberg has just promised the court that they won't, the court will revisit that. And that holds with all instructions, if a contrary argument is made that requires the court to reinstruct.
Your Honor, should that event occur, am I excluded from contempt citation if counsel chooses to disregard my representation?
KEY QUOTEI understood you to understand--I understood your position to be, you don't want it if I don't give the Laura hart McKinny.
Let me reconsider that in terms of the proffer of the Prosecution that they will not argue McKinny. We withdraw.
Your Honor, could I then have it relabeled in a photocopy form as People's proposed special jury instruction no. 4, and we will offer it.
D-11, your Honor, is a matter that is appropriately provided in the form of a Defense motion to the court to argue as a matter of law the alleged description of material evidence. It is what the lawyers would call the Hitch/Trombetta/Youngblood line of case authorities and to seek the appropriate sanctions. It is not appropriate as a jury instruction. This is--
It is an instruction if, in fact, the court should find--the court should find as part of a motion that there has been the loss of material evidence. And, of course, what case is not cited here, which I think has to be the most important thing, even if the court were thinking, well, I'll entertain a motion now from the Defense under this line of authority, is Arizona versus Youngblood or Youngblood versus Arizona from the United States Supreme Court, which requires a finding of bad faith on the part of the Prosecution or prosecuting agency in order to even invoke the remedies that would be invoked under the Trombetta line of cases.
But the bottom line is, it comes initially as a motion to the court for the court to make a legal determination and then, if and only if the court makes a legal determination that the motion is meritorious does the court determine what is the appropriate sanction. The Zamora case is the California Supreme Court case which incidentally I think the court is well-aware predates Trombetta, predates Youngblood. It comes out the same year as the nation case, which is the follow-up to the hitch case, and it is a case saying that a sanction can be and should be in the form of a jury instruction. But that is presupposing that the court has made as a matter of law a determination that there has been the destruction of material evidence. And now, of course, under the more restrictive United States Supreme Court decisions in Trombetta and Youngblood, the finding that the court would have to make to justify some sanction is much more stringent than the requirement under the terms of hitch, nation and Zamora. This is not a jury instruction issue. This is a motion issue. This instruction should be rejected.
I think the argument really addresses just the last sentence of special instruction no. D-11, and we would certainly contend that if an appropriate remedy for a finding of the willful destruction of material evidence is dismissal, then such a finding by the jury would justify an acquittal. But we want to make clear that the giving of an instruction should not hinge on whether the court deals it appropriate to include the last sentence of this instruction. We believe the first part of the instruction states the law accurately, that the jury in looking at evidence that they know is not available, that has been lost--and they are aware, the jury knows that the contents of Nicole Brown's stomach retrieved during the autopsy, they know that the seats were removed from the Bronco at Viertel's garage, they know the scrap of paper on the ground at the murder scene was not retrieved, they know the ice cream cup was not recovered; and they should be told what happens to these items is a question for you to decide, and if you find that they are unavailable due to the negligence of law enforcement, even if it is without intent to falsely convict the Defendant, they can regard that unavailability as another fact that they can consider with all of the other evidence in terms of assessing the Defendant's guilt or innocence. That is an appropriate and accurate statement of the law and the jury should be informed because it is aware of the absence of this evidence.
All right. I disagree. I don't believe it is an appropriate instruction under this scenario. All right. D-12.
In short and simple terms, your Honor, this instruction is argumentative although it is kind of interesting. It says "The absence of evidence you would normally expect to find in a Prosecution based upon circumstantial evidence." Well, what does this jury know? I mean, I wasn't present for the voir dire. I don't know if they're expert in what you would normally expect to find in a circumstantial evidence murder case. I wonder how many of these people realize that the absence of the body itself, the person killed may be a case that leads to a conviction for murder, the L. Ewing Scott case being probably the most well-known or the Billionaire Boys Club being another well-known case. No. 1, this jury is in no position to know normally what we expect to see and compare to what is absent. I think I've had enough fun with this instruction if that's the right term. It is clearly argumentative. Counsel can argue this issue to the jury and tell them what is absent that they should expect to have been present, but the bottom line is, this is not an appropriate instruction of law.
In cases we've cited, your Honor, People versus Hall and People versus Blakely, clearly support the giving of this instruction. The jury should be informed that in a circumstantial evidence case, it is not inappropriate for them to consider the absence of evidence that might normally be expected. And the jury is aware that this evidence has not been produced. They know that we don't have a weapon here, we don't have bloody clothing, we don't have identifiable fingerprints. Those are all circumstances that they can consider, and a failure to give this instruction would not inform the jury that in a circumstantial evidence case, they can consider not only the evidence that has been produced, but the evidence that has not been produced.
All right. This instruction is really more appropriate as argument and I'll decline to give it. All right. D-13.
Your Honor, again, counsel attempts to argue the Defense case to the jury in the form of D-13, evidence of efforts to fabricate or plant evidence in any form is affirmative evidence of the weakness of the Prosecution's case. I don't believe that sounds like a neutral statement of the law. It sounds like what I would expect Mr. Cochran to say. And perhaps if the statement doesn't speak well enough for itself, the fact that the citations relied upon are of somewhat ancient vintage should suggest that this has been something less than a persuasive authority in the 50 or 60 years since the graham decision and 45 years since the Remington dicta opinion. Submit it, your Honor.
Both this instruction and the following one, D-14, your Honor, address directly the evidence that has been offered in this case with respect to the bloodstain on the sock, the bloodstain on the rear gate under--in the case of both of these items of evidence, we have significant evidence in this record from which the jury could conclude there was an intentional effort to procure or create false or fabricated evidence. Now, the consequence of the jury coming to that conclusion is not merely that they should disregard that evidence, that if they find that the bloodstain on the gate or the bloodstain on the sock was created in an effort to fabricate evidence against the Defendant, that they merely then just disregard the bloodstain on the gate or the bloodstain on the sock. What this instruction says to the jury is, not only should you disregard that evidence, but that is affirmative evidence of the weakness of the Prosecution's case and it gives rise to an inference that the--the false effort to implicate the Defendant is reason to doubt his guilt and it's not appropriate that the jury simply be left to their own devices in terms of the significance of that evidence.
All right. As to D-13, it's clearly argumentative. I decline to give that and I likewise decline to give D-14. All right. D-15, 16 and 17.
Your Honor, obviously, no. 1, we start with, the jury will receive 2.20, the standard jury instruction which has for many, many years completely and clearly given the jury the kinds of factors that they are to consider in determining the factual questions which they must decide and from which they will reach their legal determinations on the question of guilt or innocence and there is no basis to take something, to give superfluous instructions.
As the court may recall, when I read this morning from the Garceau case, 6 Cal. 4th 140, 191 to 194, one of the basis that the court said was improper but not error to reject Defense instructions was the instructions also--the instruction was repetitious of the standard cautionary instructions given to the jury in this case. That was 270 and 271, but it's applicable to 2.20. D-16, which talks about "Demeanor," again, the term that's used, but also, quote, the whole nexus of sense impressions you get from the witness, unquote, I would substitute the word "Device" except that that's probably from the standpoint of a legal instruction not exactly what the law intends in the way of informative information in a jury instruction. This is argument. This is covered by 2.20, which includes demeanor and which is I think self-evident for the jury. D-17, we have modified 2.20 and the court has our proposed modification which includes a paragraph dealing with the effects, if any--and I have to pull my copy out here if the court will give me a moment--"The effects of any"--it's the fourth paragraph of the modified 2.20 that we have submitted, "Effects, if any, from the use or consumption of alcohol." I believe "Drugs" should be stricken because I do not believe from everybody I've talked to that there is any evidence that any witness at the time of the events witnessed was allegedly under the influence of drugs or had taken drugs. But the full instruction, "The effects, if any, from the use or consumption of alcohol, drugs or other intoxicants by the witness at the time of the events about which the witness testified." Dean Uelmen's proposed instruction D-17 is also talking about at the time the witness testified. I am aware of no evidence that has been received by this jury to suggest that any witness at the time the witness was testifying was found to be under the influence of alcohol, drug or other intoxicant. It would be totally irrelevant to the jury's consideration. So we believe that 2.20, the standard instruction modified to include the concern expressed by the Defense in their D-17 proposed instruction is the proper and fully adequate instruction for the court to give.
The purpose of these instructions, your Honor, is to emphasize for the jury the role that they play as the final arbitrator of the demeanor and appearances of witnesses and it's up to them to determine whether, in their judgment, a witness was impaired at the time the witness testified.
For example, in assessing the testimony of the witness Kato Kaelin, there were aspects of his testimony that might lead the jury to wonder--and what we believe is appropriate is that they be informed they're entitled to wonder, that they are the judges of assessing the weight to be given to the witnesses based on their demeanor and appearance. And certainly the relevance of intoxicants, alcohol, drugs, whatever is a two-edged sword. It is relevant not only in terms of the condition of the witness at the time of the events that they observe, but also at the time that they testify, and the jury should be so informed.
But is there any factual basis you have for the possibility that somebody was under the influence of drugs or alcohol at the time they testified?
That is entirely up to the jury based on appearances, and we believe that in the parade of witnesses who have come before them in the last eight months, there may be reasons to wonder about some of them, and I think it's appropriate that the jury be told, you're entitled to wonder, you are the final judges of credibility.
All right. I think that 220 does adequately cover these. So I'll decline to give that special instruction.
Will your Honor give that as modified in the People's submission to include "The effects, if any, from the use or consumption of alcohol, drugs or other intoxicants at the time of the events about which the witness testified"?
And may I inquire, your Honor, the court is denying D-15 or sustaining the objection to D-15, D-16 and D-17?
D-18, your Honor, the objection is simply that this singles out a particular group of witnesses and highlights a particular group of witnesses in an inappropriate fashion. 2.20 says "Every witness" and makes sure that these standards apply to every witness. This type of instruction, if you will, is appropriate in the voir dire phase of a trial when counsel and the court are interested to know whether or not jurors may view more favorably or less favorably the testimony of a witness who happens to be a police officer simply because they are a police officer. It does not--it is not appropriately placed in the form of a jury instruction which highlights that segment. Do we do the same for expert witnesses? Do we do the same for people who come from a different kind of occupation that may not be well thought of by some people? I submit to the court that there is no need for this instruction.
Well, your Honor, again and again throughout this trial, the suggestion has been made to this jury that the testimony of a police officer should be given special consideration right up to yesterday when Commander Bushey got on the witness stand and talked about how the Los Angeles Police Department has tried to do its best in this case. What we're dealing with here is a simple instruction that says to the jury a police officer's testimony is assessed and considered the same as any other witness in the case. We've had a lot of other--a lot of police officers testify in this case. For example, they tried to elicit from Detective Vannatter the degree of frustration that he was experiencing after 25 years of service as a police officer.
The implicit inference that they're trying to create with those questions is to say to the jury police officers are special people. They're out there attempting to serve you and they're entitled to some special consideration. That may well be true, but it is not a relevant fact in assessing the credibility of a witness, and it is certainly appropriate in this case, with the number of police officers and the crucial nature of their testimony, to tell this jury and give the instruction which is well-supported in the law, that a police officer has his or her credibility assessed the same as any other witness.
All right. A jury instruction that singles out one particular classification of witnesses for special attention I don't believe is appropriate. So I'll decline to give that one. All right. Special instruction D-19.
Your Honor, I believe the court sustained the objection to that. This was the perjury, putting 19 and 20 together.
Your Honor, we are going to get into a series if I'm not mistaken--perhaps this is the first--but with the reasonable doubt issue. As Freeman makes clear and as 1096 and 1096(A) make clear, 2.90 is the appropriate reasonable doubt instruction. The court need not give any additional reasonable doubt instruction, and one acts at one peril when modifying reasonable doubt instructions, on top of which this is not an accurate statement of law because the jury will assess under circumstantial evidence instructions, under direct evidence instructions, under general credibility instruction and 2.90 which says it is that state of the case or the mind of the jury which after your entire comparison and consideration of all the evidence leaves your mind in such a state you cannot say you have an abiding conviction in the truth of the charges. So this is not an accurate statement of law and it should not be given as an effort to argue to the jury. Again, this is a one-sided--one-sided instruction. That is not a proper statement of law to allow the Defense to argue to the jury what the jury legally should do when, in fact, this is not what legally the jury in fact should do. Submit it.
I'll concede this is a one-sided instruction because the burden of proof in a criminal case is one-sided. It all rests on the Prosecution. They have the burden of proving guilt beyond a reasonable doubt, and that burden pervades all of the evidence including the evidence with respect to credibility of witnesses and we believe the jury should be reminded of that fact.
All right. I think this matter is adequately covered by the other instructions. So I'll decline to give this one. All right. No. D-22.
Your Honor, I believe we handled 22, 23 and 24. I have marks sustained to our objections on all three.
Your Honor, clearly, Caljic 2.51 properly adequately instructs the jury on the significance of the presence or absence of motive. Again, counsel understandably wants to try and put their argument into the guise of the jury instruction to tell the jury that the absence of motive in and of itself can give rise to a reasonable doubt. The jury instruction in the form of Caljic 2.51 properly tells the jury that the absence of motive may indicate that the Defendant is, in fact, not guilty. There is no basis to expand upon it. The case law seems to suggest that where there is a proper patterned instruction to cover this, the courts would be well guided to stay with that instruction. We submit 2.51, which has been submitted as part of our package, should be given and D-25 rejected.
Your Honor, it's clearly the law that absence of motive may in itself give rise to a reasonable doubt. So we believe it's appropriate to include in the motive instruction at least the sentence indicating that fact. While 251 says absence of motive may tend to establish intent, it does not add that it may itself give rise to a reasonable doubt, and we would ask at least that 251 be modified to state absence of motive may tend to establish innocence and may itself give rise to a reasonable doubt.
This particular instruction 2.51 is a particularly time-proven instruction. If I were to make this a neutral instruction in the manner suggested by the parties, then I would have to include also a sentence saying that presence of motive is significant evidence of guilt, which I'm not inclined to do. So I'm going to decline the special instruction, give the standard 2.51. All right. D-26.
D-26, your Honor, again, we're getting into this issue of defining reasonable doubt. But now we are going into specifically circumstantial evidence. With all due respect to Dean Uelmen, going back to a 1931 case, predating the Caljic instructions I think suggests that this is probably not an instruction of law that has been well-received in recent time. 2.01, 2.02 are time-tested proper statements.
In fact, this statement, if the court looks to the second to the last line, "But they must exclude to a moral certainty every other theory," those words, "Moral certainty," seem to have created a lot of activity in the United States Supreme Court and in the Caljic committee and in Sacramento with respect to 1096 and 2.90. I submit, your Honor, that this is clearly not an appropriate statement of law. 2.01 is and is the instruction that should be given.
Your Honor, the fact that we have venerable citations dated back 60 years should not detract from their weight, but should add to their weight. The core principles that in a circumstantial case, the Prosecution must exclude every reasonable possibility that they must--that the evidence must be inconsistent with any reasonable theory other than guilt is such a core and important principle in this case that we do not believe it can be possibly overemphasized and that this instruction based on the claim is an appropriate addition to the standard Caljic instruction.
All right. I don't believe the terminology here is sufficiently modern and I'm going to decline to give it. I think it's accurately covered by 2.01. All right. D-27.
Your Honor, again, basically the same arguments that I made to D-26. But even the last sentence is even more inappropriate. All that could be resolved in the Defense favor. 2.90 says, "One does not look to imaginary or possible doubt. One looks to reasonable doubt." So whatever was the thinking in 1947 in the Denton case, I think as the court has indicated, modern language and modern interpretations of the due process clause and reasonable doubt dictate that this instruction be denied.
We'll submit it on the same argument as previously, your Honor. We're moving up though from 1931 to 1947.
D-28, your Honor, 2.90, the Freeman argument, everything I've said about the need to stay with 2.90 and what 1096(c) says. And again, 1968 authority, given what has happened with Freeman and with Sandoval versus California, Victor versus Nebraska--first of all, I just happen to know on the third line, talking about in the indictment, I don't think this case is being prosecuted under indictment. Again, what was going on in 1968 I don't think is terribly relevant to the appropriate language that should be given a jury. 2.90 is the appropriate language. Submit it.
We'll certainly agree that the substitution of "Information" for "Indictment" in the third line, your Honor, but we believe it is important that the jury be told that the reasonable doubt standard applies to every fact or element necessary for a conviction.
All right. I think that that's already made clear by the--by standard jury instructions dealing with reasonable doubt and the use of circumstantial evidence. So I'll decline D-28. D-29.
We're regressing, your Honor. We just moved back 48 years. We're now in 1920 with the Beckerstaff opinion. Your Honor, again, 2.90 tells the jury what is the standard, what is the test, and I'll submit the matter on the previous arguments.
I don't believe 2.90 addresses the particular point emphasized in this instruction, that the jury cannot convict based on mere suspicion, and that even if they have a suspicion, that should not in any way dissuade them from returning a verdict of not guilty if they have a reasonable doubt, and that's a distinction that should be made very clear to the jury in the instructions, that a suspicion should not in any way dissuade them from a finding of reasonable doubt.
D-30, again, your Honor, 2.90, Freeman, you'll notice that the instruction ends with "To a moral certainty," again, the archaic language that has been knocked out, and I just submit it on the same arguments.
I believe, your Honor, the court has rejected this one and offered 4.50, which I have given to the court in the form I understand the court wanted it modified.
Your Honor, somewhat similar to the proposed special instruction dealing with absence of motive. Now, we are talking in terms of evidence of demeanor. First of all, they're trying to single out a class of evidence for the jury's consideration, which the People submit is not appropriate in a jury instruction. But what's to me interesting is, the Defendant has offered evidence that his demeanor was inconsistent with the demeanor of one who is planning or had committed the brutal murders in this case. It will be for the jury to decide what is the expected demeanor of a murderer. I don't believe any expert testimony was offered on that subject, at least as I understand it.
I can't be held accountable for the sins of all of my colleagues. The other thing is, the second sentence goes on: "Such evidence alone--"may require leaving out, of course, even the necessary phrasing, "If believed," since clearly this is the one-sided evidence of the Defense. It is argumentative. It's a matter for argument by counsel. This instruction should be rejected.
We don't object to the insertion of "Such evidence alone, if believed, may require the Defendant's acquittal." This again goes back to the bedrock principle, your Honor, that the Defendant's theory of the case which the evidence justifies no matter how weak or unconvincing, the court may find that evidence, we are entitled to an instruction to the jury on our theory of the case. And the Defendant's theory of the case does include demeanor evidence as a very important element of reasonable doubt. That if the demeanor of the Defendant immediately before and immediately after the alleged commission of this crime is inconsistent with the demeanor of one who had committed a crime such as that in this case, that alone can give rise to a reasonable doubt. There is nothing in any of the Caljic instructions that covers that point, that addresses the significance of demeanor evidence. And since demeanor evidence is such a significant part of the Defendant's theory of the case, we believe we're entitled to have the jury given this instruction, which is an accurate statement of how they should assess that evidence.
Your Honor, I think the same arguments in some degree dealing with 2.90 apply here. Again, you will notice "Moral certainty" language appearing in line 2, appearing in the second to the last line of the proposed instruction. 8.20 spells out in time-tested language what is the necessity to find a first degree murder based upon willful, premeditated and deliberate murder and that there is no basis to submit again language which is found to be dangerous from Freeman and so forth and which is, in fact, not necessary given 2.90 and 2.o. submit it, your Honor.
We'll withdraw the reference to "Moral certainty" on line 4 and line 6 of this instruction. The remainder of the instruction is approved by People versus Connelly and we believe is significant in the context of the case where the only theory justifying a first degree verdict here is to find that the Defendant did carefully weighed the course of his action and weighed the considerations for and against it. This language is not included in Caljic 8.20 and in the circumstances of this case, it is an accurate description of the law and an appropriate instruction to give to the jury.
Your Honor, could I just point out, 8.70, which is in our proposed packet, informs the jury about their duty to determine the degree of murder. 8.71 tells the jury if they are not convinced beyond a reasonable doubt, if they have a reasonable doubt as to the degree, they must give the Defendant the benefit of the reasonable doubt and find it to be murder in the second degree. So that is covered by additional instructions.
All right. I'm going to decline the special instruction. It is adequately covered in the patterned instructions from Caljic. D-35.
Your Honor, again, we're back to the same argument, 290, Freeman and so forth. There's nothing new to add. Submit it.
We'll again withdraw the reference to "Moral certainty" in line 7. But, again, this addresses an aspect of reasonable doubt that is not adequately addressed in the Caljic instruction, especially in the context of a case where the jury might be inclined to speculate about the failure to prove the identity of the person who actually committed the crime. We do have a situation in this case where the court's rulings have precluded the Defense from offering evidence with respect to other possibilities. That simply leaves the jury free to speculate and wonder and to hold against the Defendant the failure to offer evidence of who actually committed this crime. Under these circumstances, we believe it is sur-genuineness for the court to say to the jury what the law actually is, that the Defendant does not have to prove himself innocent, he does not have to prove that another person committed the crime, and they should not hold it against the Defendant in assessing reasonable doubt that evidence was not brought in as to who actually committed these crimes.
Your Honor, we submitted proposed jury instruction no. 2, which I inferentially gather was rejected, dealing with burden on the Prosecution to prove not only the elements of the offense, but the identity of the Defendant as the perpetrator. The Defendant has the benefit of 4.50, which the court has modified and is going to give. The jury is going to be fully apprised. There's not going to be the slightest doubt, imaginary or possible, for this group of 12 people that if in fact we cannot prove that Mr. Simpson is guilty as the perpetrator by evidence beyond a reasonable doubt, that he gets a verdict of not guilty. That's clear. This instruction adds nothing to the other things. I would resubmit if the court really never ruled on People's proposed no. 2, that the court give that. But 290 and all the other instructions that I've indicated fully cover this and this becomes fully redundant and unnecessary. Submit it.
Your Honor, this simply ignores the fact that the absence of this evidence can work against the Defendant in terms of the jury's assessment of whether they have a reasonable doubt. It's not enough to just tell them you have to find the Defendant guilty beyond a reasonable doubt. It's also appropriate to tell them that finding a reasonable doubt is not precluded by the failure to produce evidence of who actually committed the crime.
All right. The court will give the court's special instruction that will read as follows: "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 crimes. The Defendant is not required to prove himself innocent or to prove that another person committed the crimes charged."
Actually, it's a combination of special instruction 2 by the People and D-35 submitted by the Defense. C-36. Sounds like a Martin Cartel catalogue.
This simply expands on what the court has already indicated it would give. We are all the way back to 1873.
In Illinois apparently. I wonder if Abraham Lincoln had anything to do with drafting this.
Oh, no. He may have drafted it at the trial level and took a long time to get into the Appellate Court.
No, I don't think it took that long back then. I think this is sufficiently covered by the other instructions. D-37.
Your Honor, I think basically the same applies to D-37. The court has worked out a compromise. And, again, for all the reasons previously submitted, I would ask the court to reject this and give the instructions that the court has already indicated at this point it will give.
I think it's appropriate in a case in which the Defense essentially is that the Defendant is not the person who committed the crime, that identity is an element of the crime, that although not an element of the crime, but a fact that the People must prove beyond a reasonable doubt, and reasonable doubt simply as to identity is sufficient to justify acquittal.
All right. I think this is adequately covered by the other instructions and I'll decline D-37. D-38.
Your Honor, this instruction is properly and accurately covered in 17.40, which gives the jury an instruction of law dealing with their responsibilities. This is made clear to them and that to--in essence, this is the anti-Allen instruction if you will from the Defense perspective, trying to impress upon the jury that you can hold out because, as everybody understands, we need 12, they need one. And so it is not, no. 1, appropriate to try and focus on things which would suggest to jurors that they should hold out. No. 2, 1740 tells the jury how they should approach their own abilities, and, no. 3, even if we were in federal court where the Allen instruction might be available, such an instruction such as this would come at the end of the case, not as one is about to instruct the jury which is to begin deliberations. It should not be given. We should stay with the patterned instruction 17.40. Submit it.
I believe this is an appropriate instruction, that it is supported by People versus Wade. This is not an invitation to jurors to hold out or be unreasonable in the deliberation process, but to inform them of their responsibility to individually reach a verdict, and if they have a reasonable doubt, not to be influenced to vote in favor of conviction simply for the mere purpose of getting a verdict. And we believe in the context of a trial of this duration, of the amount of effort and expense that has gone into it, there may be a tendency on the part of jurors to think that the most important thing is for them to get a verdict even if they do entertain a reasonable doubt. So we believe in the circumstances of this case, this is a very appropriate instruction.
All right. I think that the patterned instructions do in fact cover this adequately and I think that will be the subject of strong argument by counsel on both sides. All right. Any other instructions that need to be contemplated at this point?
We also had--I'm trying to remember where the Farmer case fit in, as to which instruction.
All right. Let's go to the Shipp instruction if I can find my copy here. All right. Mr. Uelmen.
Yes, your Honor. Our problem with this instruction is that there are really three alternatives with respect to the Shipp testimony, and this instruction only lays out two of them. The third alternative, our position is that this statement was never made, and the instruction assumes that the jury will find that the statement was made and gives them two alternatives in terms of how they might construe that statement and then the evidentiary effect they should give to it. So we believe that the instruction should also include, "If you find the statements never occurred, of course, you will disregard it," and when it refers to the statement, refer to it as an alleged statement.
Your Honor, I did not have the benefit of hearing in person the arguments or the ultimate testimony of Mr. Shipp, but I have reviewed the appropriate citations in the transcript. I notice on page 12686, the court ruled on the admissibility of that testimony without a limitation. The court said the statement regarding the dreams about killing will be admitted. The actual testimony that was heard by the jury is on page 12779 and the statement on line 22, the answer that is:
"He kind of jokingly just said, you know, to be honest, Shipp--that's what he called me, Shipp--he said, I've had some dreams of killing her." It seems to me, your Honor, that this instruction is dictating to the jury how they should assess that evidence when, in fact, it is for the jury to assess that evidence. In essence, it seems to me, with all due respect to the court, that the court is revisiting whether the court properly ruled on admitting the evidence in the first place. But that's a little late. No offense to the court. The issue is, the evidence was received. In the event Mr. Simpson is convicted, I'm sure it will be an issue on appeal. But as far as trying to single out a particular piece of evidence and say to the court that--say to the jury--excuse me--that this is specifically how you must evaluate this, if it's this, you got to go this way, if it's that, you can go the other way, this is argument for the jury to hear from counsel, not in the form of a jury instruction. I say that with all due respect. The court has had an incredible number of decisions to make and they are difficult decisions, and there's nobody in the world who can make the correct decision every time. But as judges and lawyers know, good judges as yourself make decisions and move on. They don't revisit them. If they get overturned, they get overturned. And it happens to all lawyers. We've all had cases come back to be retried and judges have had cases come back to be retried. But to use a jury instruction for this narrow focus of evidence rather than to allow argument by counsel I think would be a mistake.
Don't you think that if I perceive a significant problem and if I can avoid having this case coming back by giving an appropriate instruction, better late than never?
To be honest with you--to be honest with you, I think if the court really felt the court made a mistake, the court would entertain a motion to strike the testimony and instruct the jury to disregard it, and that really in my judgment is what the court would have to do to deal with this. Otherwise, it's in. It's in without limitation. It is for the jury to evaluate based upon the argument of counsel. I'll submit that.
Well, your Honor, at this time, we would make a motion to strike that testimony. Alternatively, if the testimony is not going to be struck, we believe a limiting instruction is highly appropriate and an argument that because the court didn't give a limiting instruction when evidence was admitted, it is somehow precluded from giving a limited instruction--a limiting instruction at the close of the evidence finds no support in the law whatsoever.
We believe that it's the court's obligation if there is really concern that evidence will be misused, that it will be applied by the jury in a way that is contrary to the court's intentions when the evidence was admitted, the appropriate remedy is to give a limiting instruction.
All right. The court will instruct the jury as follows: This will follow after the 220 series of instructions. "Witness Ronald Shipp testified to a statement alleged to have been made by the Defendant concerning dreams. If you find--excuse me. You must first determine whether such statement was made by the Defendant. If you find that the statement was not made by the Defendant, you shall disregard the statement. If you find the statement referred to subconscious thought while asleep, you are to disregard the statement. If you find that the statement referred to an expression of a desire or expectation, you may give such statements the weight to which you feel it is entitled. Evidence of--evidence of oral statements made by a Defendant should be viewed with caution." That will be the court's instruction.
Your Honor, do you wish us to prepare--and if so, can I obtain the instruction as written by the court?
Denied. I think given the way it's interpreted, since it was an ambiguous statement, it could be taken either as an expression of what happens while one is asleep or it's an expression of desire or expectation. It could be interpreted either way.
I offer 2.13 modified. This is in the latest packet I brought down that had the court's desired instruction regarding DNA evidence.
Okay. 2.13. Because of the computer program, I'm told that they couldn't write the word "Modified" after Caljic 2.1O. It's modified because Mr. Peratis' videotape, which was admitted under 1202 of the evidence code, cannot be considered for the truth of the matter asserted and that's why this form instruction needed to be modified.
Please. And, counsel, as soon as we finish our jury instruction conversation, I'll direct Mr. Kelberg to create the appropriate package and file that with the court by the close of business today, and then we'll take a brief recess and then launch into the exhibits.
Your Honor, for my edification, how does the court want to handle deletions and so forth in the standard instructions? Do you want us to delete them or leave them for the court to strike out in the fashion the court prefers?
Give them to me, and I'll make the deletions and corrections except for the ones that we've already agreed that you're going to modify the--
We have no objection to 213, your Honor. We also have one other additional matter with respect to instructions, again, revisiting some of the "Shipp that happens" in this case. Your Honor will recall that the Defense sought sanctions with respect to the withholding of the notorious page 4, the incident involving the missing page of the document with a staple hole.
Well, we had indicated at the time that our concern in seeking that instruction was to offset any possible argument of this issue to the jury. And rather than reemphasize it with the jury instruction, we feel that a more appropriate remedy would simply be to foreclose any argument that any adverse inference can be drawn against the Defense as a result of that incident. And if there is an agreement that that will not be argued, an instruction would not be necessary.
Your Honor, I don't think that I'm adequately informed on this issue. It's not really a jury instruction issue. It's an issue in the form of a motion.
All right. Here's the thing though. During the course of our discussion of the page 4 staple incident, I did dictate--and it's in the record--the instruction that I was going to give as a curative instruction. So the jury is on notice as to what the court was going to say and will say and I'm sure Mr. Bryne will find that for me in about two minutes.
And it turned out to be such an entire milieu of what we have here, I expect we're not going to be arguing staple holes.
I would hope not, your Honor. Based on what I heard yesterday about hypodermic syringes, I think I would have to agree with the court's assessment. Your Honor, there actually are a couple more instructions.
Would you notify me, however, before the close of business today as to what your intent is so I can resurrect the language out of the transcript?
If I may, may I ask Mr. Hodgman, who has I think more direct involvement in the closing argument aspect, to speak to the appropriate people and to either directly inform the court or inform me and I'll inform the court?
Your Honor, we had--I believe Mr. Cochran talked to Miss Clark yesterday or the day before about elevating the level of our relationship with each side and in terms of they are seeking--
Yeah. They were seeking a sanction instruction on the Lee notes. We were seeking a sanction instruction on the contact sheets as well as a couple of outstanding sanctions on Miss Clark, and we had proposed just canceling all that out and moving on to closing argument. I don't know what the other side--what their response is to that.
Your Honor, I'll be glad to elevate for the public's perception of the legal profession by gladly joining in that stipulation.
There's still some more just for the record. 8.31 is in the same packet I just gave the court, but it will be a part of the final packet that we produce. That's the alternative of second degree murder on implied malice theory.
And I've given the court what I believe is the court's requested modification to 4.50 and--
And let me just make sure. Mr. Uelmen, you have that 4.50 as modified by the court?
Thank you, your Honor. I'm not a computer literate, but I'm sure we have people up there who can generate these things in nothing flat.
I'll take your word on that, your Honor. I still have to do it the old fashion way.
These are meaningless concepts to me, your Honor. I also gave Mr. Uelmen what I understood to be the suggested revision to 3.31, combined specific intent, mental state and requisite elements in the two degrees of murder. I don't know if the court had a chance to look at that. That's also part of the package I've submitted.
Not on instructions I don't believe, your Honor. The court is going to take under submission I gather several of these instructions?
Oh, we need to conclude our discussion on the Farmer instruction. I'm sorry. That's what we needed to do.
Right. And then Mr. Scheck was going to get me something, some case authority on the DNA instruction.
I'm sorry. You're right. I would like to be heard if I could just briefly on that instruction as well.
Well, that's one I've heard the argument. I want to think about it. All right. Let's discuss the Farmer issue.
Your Honor, the facts in Farmer are exactly the kind of facts which lead to 2.11.5 being formed in the language it is. In Farmer, you have multiple identifiable defendants, but they are tried separately. So the jury, in order not to be misled--and I'm afraid somebody moved the specific citation in the case dealing with 211.5, if I could have just a moment. There we go. On page 918, the Defendant was the one objecting to the instruction on unjoined perpetrators. The instruction, according to the Court of Appeal, does not tell the jury it cannot consider evidence that someone else committed the crime, citing Hall. And as I recall from what I have heard in this case based upon Hall and its progeny, the court rejected certain efforts with respect to the admissibility of third parties in this case. The Court of Appeal in--not Court of Appeal--Supreme Court in Farmer goes on, merely says:
"The jury is not to speculate on whether someone else might or might not be prosecuted." And the word "Prosecuted" is italicized for emphasis. And that's really what 2.11.5 is all about, that the jury not convict Mr. Simpson or in this case, Mr. Farmer, on the theory that the jury may be concerned that because they don't have this other person available, they should take it out on this individual. And that's why 2.11.5 is drafted and drafted in the language in which it presently appears in the revision. It is not appropriate for this situation. Counsel's argument is really an argument to the jury about whether, if the jury believed there are multiple killers, that creates a basis to understand it could not be Mr. Simpson involved at all, not a concern that he would be convicted because there is some identifiable other person who is not present in this courtroom. Submitted, your Honor.
Well, again, your Honor, this simply emphasizes the appropriateness of the instruction in this case. You can bet that the Defense will argue that there was more than one perpetrator involved in this homicide, and that's a very relevant fact. But what the jury is not to speculate on is why such other person is not here on trial. And there is the risk that adverse inference can be drawn against the Defendant from the absence of another person on trial and the jury should be told you simply should not speculate about that, that is not of concern to you in this case. And in the facts of this case, that is an appropriate instruction, precise form recommended in the Farmer case and in the revision 2.11.5. We believe the jury should be instructed to that effect.
All right. I find that the fact situation in this case does not lend itself to 2.11.5 since there's no identifiable other suspect. And also, this jury is not under any impression that there has been any other person indicted or arrested or accused of this crime. All right. We'll take a 15-minute recess, and then we'll shift into the exhibits discussion.
How many murder cases has your Honor ever heard of in which the Coroner who conducted the autopsy was not called as a witness, but instead, another medical examiner was brought in to describe the results of the autopsy?
Your Honor, should that event occur, am I excluded from contempt citation if counsel chooses to disregard my representation?
You may, but your boss won't.
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 crimes. The Defendant is not required to prove himself innocent or to prove that another person committed the crimes charged.
The jury is aware that this evidence has not been produced. They know that we don't have a weapon here, we don't have bloody clothing, we don't have identifiable fingerprints. Those are all circumstances that they can consider.