Back on the record in the Simpson matter. All parties are again present. The jury is not present. The record should reflect that over the noon hour, we had an informal showing of the argument boards produced by the Defense. Counsel, any comment before we resume with the jury?
I filed with the court a couple of motions. One dealt with the potential for Mr. Cochran to mention either Detective Fuhrman's invocation, the other--and with the potential for referral to matters contained on the tape that were deemed inadmissible by this court. And we have proposed a--we have proposed a remedy should such violation occur, and the Defense response doesn't appear to be very responsive to the People's motion. So the People would urge the court to instruct counsel that if he does violate the court's order by mentioning Detective Fuhrman's invocation or if he does violate the court's ruling with respect to the content of the tapes that was deemed inadmissible by referring to them in some manner in closing argument, that the appropriate sanction and one that would prevent--that would make his violation not worthwhile, not worth doing, is to say if you do mention such a thing, this is the remedy. "I will instruct the jury that Detective Fuhrman did not plant the glove." The remedy has to be something that makes it unworthwhile for the Defense to violate the court's order. Otherwise, if all it is is a monetary sanction or an admonition that it's improper in front of the jury, that would not be--that would not give the Defense incentive to abide by the court's ruling. And so the People urge the court to make sure that the Defense does not violate rulings by giving--making a sanction onerous enough so that it would not be worth their while to do so. With respect to the burden of proof chart, does the court want to hear that now?
The problem with this board is that it's extremely misleading and it's going to confuse and mislead the jury on a matter of law. And it's one thing to draw reasonable inferences from the record and from testimony to say we've heard this, we've heard this, therefore that, but there is no misinterpretation of how that is permitted.
And counsel although can ask--although counsel can ask the jury to draw unreasonable inferences from the record and that is what he will do, I do not think there's any authority permitting counsel to ask the jury to misinterpret the law, which is what this invites them to do by creating the impression that the burden of proof is so overwhelming, it would be unbelievable that we could get a conviction in any case if it were as stated on this chart. It's misleading in five ways. First of all, it contains phrases, several of them, that supposedly describes thresholds of evidence that don't exist and have never been a part of the definition of reasonable doubt. It contains the phrases "Highly unlikely," "Less than likely," "Probably not unlikely" and a variety of others that the court has seen. All of these are used to describe thresholds of evidence that fall in the category of not guilty according to the chart, but none of them find their way into the penal code section 1096, definition of reasonable doubt. So it's misleading in that respect. Secondly, it's misleading because it contains terms in the not guilty range that are consistent with guilty. For example, the phrase "May not be" is used to describe a threshold of evidence in the category not guilty when in fact under 290, the jury is entitled to convict the Defendant if all they have is some possible doubt. Excuse me. And as the court knows, I did go over with the jury at some length the fact that a mere possible or imaginary doubt is not sufficient to raise a reasonable doubt. What this chart conveys to the jury is that mere possible doubt is sufficient. It contravenes the burden of proof by saying that certain terms--by certain of its terminology in some of those levels, what they say is not guilty is actually guilty. You see what I mean? So, third, it's also misleading because it implies that proof beyond a reasonable doubt is absolute doubt. I mean, absolute certainty. In other words, no doubt at all. It does that by implication by having the bottom of it not guilty or absolutely not guilty, creating the impression at the top of that which is the burden of proof we have to carry is absolute certainty. There's nothing in this world that could be proven with absolute certainty. That's why we have proof beyond a reasonable doubt as a standard. Yet by implication, that is what the chart seems to infer to the jury and that's direct misinterpretation of the law.
Fourth, it's misleading because it uses terms that are synonymous, treating them like they're distinct categories. For example, the terms "Probably not," "Less than likely," "Unlikely," they're synonymous, but in this chart, broken down as though they're separate gradations when, in fact, they're all the same. Same thing with "Perhaps" and "Suspected." So they create gradations that really don't exist. It's a figmentary kind of depiction of all of the levels that a person might have a belief and so it amplifies the burden of proof unfairly. Fifth and last, the chart is misleading because the visual nature of the presentation of the degrees of proof suggest indirect and unsubstantiating numerical levels of certainty. It would imply that there is some kind of numerical level that could be attached to what constitutes guilt beyond a reasonable doubt. And the inference drawn here by the number of levels that they have, if you work it out mathematically, is that 93 percent equals guilt beyond a reasonable doubt. That's improper and we don't categorize our burden of proof by mathematical probabilities or by quantities that can be mathematically defined. That would be impossible to do. It's misleading to the jury and it's improper. So we would ask the court--urge the court strenuously not to permit this chart as the jury will be misled to what the People's burden of proof really is and what is meant by proof beyond a reasonable doubt.
And then--and Mr. Mayvis points out correctly, as we cited at the end of the motion, your Honor, the freeman case makes it very, very clear that to vary from the standard reasonable doubt instruction is a perilous exercise, and this chart varies substantially from the definition given to the jury in their jury instruction and from the definition given in penal code section 1096. And for all of these reasons, because it is misleading and because it is a very dangerous practice and because it may very well give the jury a misimpression of what the burden of proof really is, it should not be allowed. Counsel's also previewed for us the--laser show they intend to play. What counsel has attempted to do is subvert the court's ruling concerning the video clips by using stills from videotape, and I thought the court said we couldn't do that and yet, that's what they've done. So instead of playing the moving picture, they took the video clip and just used a still from that. I don't--
My recollection though is that the Prosecution array that was displayed to us also included static photos of persons while testifying.
Yeah. The actual use of the videotapes. But if you want to say this is so and so, this is what the person--this is who it is, this is what they testified to, that's permissible.
With respect to--there's one other thing, your Honor. They showed stills of the glove demonstration with Mr. Simpson, a number of them with him trying on the gloves in front of the jury, but there's a number of them which is in effect using a video clip. Now, if they want to use that and if the court wants to permit them to use that, then we would ask the court in fairness to allow us to play the whole tape rather than just those segments being shown by the Defense.
Good afternoon. With respect to the--I guess it's a prophylactic instruction that they want in case we do something wrong, then this is what our punishment is going to be. I've never heard of anything like that. We know what the rules are. We know what we can say, can't say, and I am sure if we say something we're not supposed to say, they'll jump up, you know, holler at us and whatever will happen will happen. I think it's absolutely ludicrous for us to sit here and debate whether we might do something wrong or if we do, what should happen about it. I think that's a foolish motion quite frankly. As to the charts, the burden of proof chart, I've probably used that chart in every trial I've done in the last five years. It's never been excluded. I've never been told by a court I can't tell the jury what I think reasonable doubt is. They were allowed to tell the jury what they think reasonable doubt is. That's part of argument. That's what argument is for.
The court reads the instruction. Those are the words in the instruction. We're entitled to say this is how we think you should interpret that. There's nothing on there about percentages. I guess they went so far as to count up the little boxes and add them altogether and divide them up and say we are going to make some argument that 93 percent or seven percent I guess is reasonable doubt. That's foolish. We're not going to offer any kind of a statement like that. The freeman case talks about the court's instruction. For the last five years, I've also asked the court to give my own instructions on reasonable doubt and I never get those. They always give 2.90. But I've never been precluded from saying this is what we think reasonable doubt is. They're going to have another shot at the jury. They can get up and say that's a lot of hooey. You shouldn't look at it that way, you should look at it this way. So I would--I think there's nothing wrong with that chart. As to video clips, if they want us to show the whole thing, we'll be happy to, of the glove demo.
No, your Honor. It's not a matter that we want to use it. It's a matter that I don't think it should be allowed for either side. And what I was saying is that, you know, they have some stills they want to show which are, of course, you know, just the parts that are most favorable to them. But I think it would be inappropriate to use them. We could have used it in our opening argument. That was the plan that we had until it was ruled that we couldn't. But the problem with the glove demonstration was that it's an act of mobile thing. To take still shots from that is very misleading to the jury and it has penalized the People because we couldn't--we felt we couldn't use it.
Well, my recollection is that the Prosecution argued against the use of videotape because it's not the official record.
That's right. That's right. Our position hasn't changed, your Honor. I think the court's ruling was also that we could only--at the point that the court was saying we could use videotape, the court was saying that it could only be taken of the witness in the blue chair, and this doesn't qualify.
This is not a tape of testimony. This is a picture of the demonstrative demonstration that was done, and we only had two stills by the way.
All right. Let me see it. Let me see the excerpt that you propose to use or the stills--I'm sorry--that you propose to use.
With respect to the glove photos? The only point I wanted to add, your Honor, other than the fact that we would have used this ourselves in opening argument, is that if--these photographs are misleading because they only show a portion of it. But in order to show all--I mean, either the clip should be shown or none of it should be shown, and I think that none of it should be shown. Counsel can argue it as we argued it, but I don't think this is appropriate and certainly not the stills that they're using.
All right. Thank you, counsel. All right. As far as the Prosecution motion for preemptive instruction, admonition or warning to the Defense regarding Detective Fuhrman and regarding the McKinny tapes, the court finds that to be premature. I trust that counsel know what the law is regarding appropriate argument by counsel. The evidence code is clear that counsel may not argue or mention the invocation and I'm sure Defense counsel know that the sanction will be swift and severe, and I don't think it's necessary for the court to take any action at this time. As far as the chart regarding burden of proof, reasonable doubt, that is a very familiar chart to the court. I've seen it before. I'm sure I'll see it again. The objection to that is overruled. The objection to the clips of the glove demo is sustained. It is not part of the official record. All right. Anything else? Are we ready? All right. Deputy Trower, let's have the jurors, please.
I will instruct the jury that Detective Fuhrman did not plant the glove.
I think it's absolutely ludicrous for us to sit here and debate whether we might do something wrong or if we do, what should happen about it. I think that's a foolish motion quite frankly.
The evidence code is clear that counsel may not argue or mention the invocation and I'm sure Defense counsel know that the sanction will be swift and severe, and I don't think it's necessary for the court to take any action at this time.
It would imply that there is some kind of numerical level that could be attached to what constitutes guilt beyond a reasonable doubt. And the inference drawn here by the number of levels that they have, if you work it out mathematically, is that 93 percent equals guilt beyond a reasonable doubt.