Sidebar: improper defendant comments

📄 Sidebar: improper defendant comments — Tuesday, September 26, 1995

Address:

C:\DEPT103\CRIMINAL\1995\SEP\26\SIDEBAR-IMPROPER-DEFENDANT-COM.DOC

TRIAL

▲ Day 161 of 167

◀ Closing argument — Marcia Clark (afternoon, part 1) Closing argument — Marcia Clark (afternoon, part 2) ▶

Date: Tuesday, September 26, 1995 • Utterances: 14

Judge Ito pulled counsel to sidebar to warn Marcia Clark that commenting on OJ Simpson's courtroom conduct — since he was not testifying — was legally improper. Clark pushed back mildly, claiming she had researched the issue and felt she had authority for it, but conceded she was already done with that line and agreed to move on.

# 1 THE COURT:

In fact, let me see counsel at the side bar with the court reporter, please.

# 2 (The following proceedings were held at the bench:)

# 3 THE COURT:

Miss Clark, I don't know that it is appropriate to comment upon conduct of the Defendant in the courtroom who doesn't testify.

KEY QUOTE

# 4 MR. COCHRAN:

Right.

# 5 THE COURT:

So stay away from that.

# 6 MS. CLARK:

Okay, I will, but I checked this out legally and I think I have authority for you.

KEY QUOTE

# 7 THE COURT:

We are close. I think you are close.

# 8 MS. CLARK:

I'm done anyway. I'm not going back to it. I already researched this.

KEY QUOTE

# 9 THE COURT:

I understand.

# 10 MS. CLARK:

I feel solid.

# 11 THE COURT:

Move on.

# 12 MS. CLARK:

Okay.

# 13 THE COURT:

Thank you.

# 14 (The following proceedings were held in open court:)

Temperature

tense

Key Quotes (3)

Lance A. Ito

I don't know that it is appropriate to comment upon conduct of the Defendant in the courtroom who doesn't testify.

The judge flags a potentially reversible error — commenting on a non-testifying defendant's demeanor risks Fifth Amendment issues.

Marcia Clark

I checked this out legally and I think I have authority for you.

Clark pushes back rather than immediately deferring, signaling she believed the tactic was defensible.

Marcia Clark

I'm done anyway. I'm not going back to it. I already researched this.

Clark resolves the tension by acknowledging the issue is moot — she had finished that argument already.

Notable Exchanges (1)

Lance A. Ito•Marcia Clark

Judge warned Clark against commenting on Simpson's courtroom conduct; Clark mildly defended the practice as legally researched but agreed to drop it since she was already finished.

tense but quickly defused

Objections

None recorded

Proceeding 7823 • 14 utterances

Criminal Trial

Department 103