All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the court with his counsel--let's have it quiet in the courtroom, please. Mr. Simpson is present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Uelmen. The People are represented by Miss Clark, Mr. Darden and Mr. Kelberg. The jury is not present. The record should reflect that the court has conducted an off-the-record in chambers conference with counsel to conclude our discussions concerning the jury instructions. And so that the record is clear, the Prosecution has withdrawn their request for instruction 8.31, second degree murder on an implied malice theory. They have withdrawn that. They have also withdrawn 8.25, murder by means of lying in wait as a theory of premeditation. The record should reflect that the court has modified 2.20 at the request of the Defense to include any influence that might be exerted upon a witness at the time of their testimony by any drug, alcohol or other substance. The court has heard argument in chambers regarding the DNA instruction that the court intends to give, and I've heard the argument regarding the request that the court instruct on a laboratory error rate as a phenomena that should be considered by the jury. Any other comment on that particular issue? Is the matter submitted?
All right. I have contemplated this issue. This is unfortunately an area where instructions from other courts, and approved by the court of appeal in various states, there is not an overabundance of guidance to the trial court. I believe that the--the argument that laboratory error rates should be considered is a valid argument and I will instruct--I will include the following two sentences on the court's special instruction no. 3: "frequency estimates in laboratory error rates of different phenomena both should be considered in determining what significance to attach to bloodstain testing results." All right. Any other comment on instructions before we invite the jurors to join us? Mr. Uelmen?
For the record, your Honor, with respect to the rulings that we were informed of this morning, we would like to reiterate our objection to the special instruction that the court proposes to give on section 403 of the evidence code. We believe that giving this instruction will be prejudicial error because it deprives the Defendant of a factual determination by the jury of the chain of custody issue to which he is entitled under section 403 of the evidence code. And I know your Honor noted, in denying our pretrial motion challenging the admission of the evidence from the Bronco, that chain of custody would be an issue for the jury to consider, but we believe that this instruction deprives us of a jury determination of that issue by submitting it to them just in general terms of relevancy, rather than requiring a finding of the preliminary fact that a chain of custody was observed. Secondly, we want to object to the court giving section 271 and 272. We believe this highlights the prejudice to the Defendant in the admission of the Ron Shipp testimony, since the court has indicated this is the only basis on which the jury will be instructed that they can find an admission by the Defendant.
I don't think that is correct. I indicated that Mr. Kelberg's argument that statements made by a Defendant that are later shown to be untrue or in some way assist the Prosecution, those are legally defined as admissions.
We--we further object to the denial of the court--by the court of the proposed instruction D-33 relating to the demeanor of the Defendant. Your Honor indicated that you thought the reasonable doubt instruction would cover that.
We believe that the Defendant is entitled to an instruction with respect to his theory of the case and the demeanor evidence was a very important part of the Defense's theory of the case. And finally, we would like to make one more request, that the court at least instruct the jury that Detective Mark Fuhrman is an unavailable witness, without any comment as to any conclusions to be drawn from that fact. We believe this Defense is significantly prejudiced by the jury being sent out to decide this case without any information as to what became of Detective Fuhrman.
KEY QUOTEYes, your Honor. Again, I don't think there is any basis to highlight that, no. 1. No. 2, I don't think anyone is going to argue, from the Prosecution perspective, the failure of the Defense to bring back Detective Fuhrman in any way is going to strengthen the inference of guilt in this matter. The credibility issue is obviously there and no one is going to hide from it. With respect to the other requests by Dean Uelmen, obviously I agree with the court's ruling on D-33. I don't think I need comment on that. I think the record should reflect that because we have withdrawn a theory of implied malice for second degree murder, that we have asked the court to conform other instructions, that, for example, 3.31 as modified to strike any reference to implied malice wherever it may appear and I think has indicated it was going to do so in those additional instructions. With respect to the Fuhrman matter, one last point is I believe legally that it violates the evidence code provision which I do not believe is unconstitutional as applied to a witness. To have an adverse inference drawn from the proper invocation of a privilege and to tell the jury about unavailability invites speculation instead of staving off speculation, so I would request the court to keep the record as it is on the jury instructions with respect to Mr. Fuhrman and have the general instructions apply. Thank you, your Honor.
frequency estimates in laboratory error rates of different phenomena both should be considered in determining what significance to attach to bloodstain testing results.
We believe that the Defendant is entitled to an instruction with respect to his theory of the case and the demeanor evidence was a very important part of the Defense's theory of the case.
We would like to make one more request, that the court at least instruct the jury that Detective Mark Fuhrman is an unavailable witness, without any comment as to any conclusions to be drawn from that fact.
To have an adverse inference drawn from the proper invocation of a privilege and to tell the jury about unavailability invites speculation instead of staving off speculation.