Sidebar: jury instructions

📄 Sidebar: jury instructions — Friday, September 29, 1995

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C:\DEPT103\CRIMINAL\1995\SEP\29\SIDEBAR-JURY-INSTRUCTIONS.DOC

TRIAL

▲ Day 164 of 167

◀ Closing argument — Marcia Clark (part 6) Final jury instructions ▶

Date: Friday, September 29, 1995 • Utterances: 12

Judge Ito reviewed final jury instructions at the bench, announcing he would remove language referencing counsels' 'the world is watching' arguments as inappropriate. Barry Scheck raised two issues: a specific objection that prosecutor Goldberg misrepresented Agent Bodziak's testimony during closing by performing a demonstration Bodziak testified he could not perform, and a request for a standard jury admonition clarifying that overruled objections during closing argument should not be interpreted as endorsements of fact. Ito overruled both the Bodziak objection and the admonition request.

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

# 2 THE COURT:

I gave each side a package of the concluding instructions. I put a special instruction in there: "During the course of their arguments, counsel for both sides argues that, `the world is watching.'" "This was not an appropriate argument," I'm going to take that out. "You are reminded that you must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling."

# 3 MR. COCHRAN:

What you said earlier. Judge, one of the other--I don't think--

# 4 THE COURT:

You have it. This is just concluding.

# 5 MR. COCHRAN:

Okay.

# 6 MS. CLARK:

You're going to let them select a Foreperson?

# 7 MR. SCHECK:

I would like to make an application to request an instruction before you do this. First of all, the objection that I made on the record, if the court would look at page 32751 of the record, you will see that Agent Bodziak testified that he could not make an overlay and could not take that overlay over the carpet fibers, and that's exactly what Mr. Goldberg did. So I think that was an unfair demonstration and misstates the testimony. That is a specific place in the record if you want to look at it. Secondly, what I would request of the court at this point in time, since many objections have been made where the court has overruled the objection--and I realize you gave one earlier instruction to this effect, but I think it should be clear to the jury, particularly since a number of times you said "Overruled" on something like that's a fair inference, that it may be intentional, give--

# 8 THE COURT:

Keep your voice down.

# 9 MR. SCHECK:

--fair inference that in fact the statements on the record are true. So I would only request of the court, given the nature of this closing argument and People's rebuttal summation and our inability to get it correct, what we think significantly misstates the facts, is that the court just give a standard admonition to the jury that during the course of the closing arguments, objections have been made, I've made rulings on them with respect to--and that the jury's recollection controls and they shouldn't interpret anything from your rulings.

# 10 THE COURT:

Counsel, the first instruction I'm going to give them is not to take cue--

# 11 MR. COCHRAN:

Could you throw in this part about closing argument though?

# 12 THE COURT:

No. It's clear enough. The objection regarding Bodziak is overruled. All right. Let's proceed.

Temperature

procedural

Key Quotes (4)

Lance A. Ito

During the course of their arguments, counsel for both sides argues that, 'the world is watching.' This was not an appropriate argument.

Ito explicitly condemned both sides for invoking public scrutiny as an argument, removing the reference from jury instructions — a rebuke of rhetorical grandstanding in a high-profile case.

Barry Scheck

Agent Bodziak testified that he could not make an overlay and could not take that overlay over the carpet fibers, and that's exactly what Mr. Goldberg did. So I think that was an unfair demonstration and misstates the testimony.

Scheck argues Goldberg performed a physical demonstration during closing that directly contradicted the witness's own testimony, a substantive evidentiary objection.

Barry Scheck

I would only request of the court...that the court just give a standard admonition to the jury that during the course of the closing arguments, objections have been made, I've made rulings on them with respect to--and that the jury's recollection controls and they shouldn't interpret anything from your rulings.

Scheck is concerned that repeated 'Overruled' rulings during closing may have signaled to the jury that challenged statements were factually true.

Lance A. Ito

The objection regarding Bodziak is overruled. All right. Let's proceed.

Ito denied both of Scheck's requests with minimal discussion, closing off defense remedies for the alleged closing argument misconduct.

Evidence (2)

Informal

Bodziak overlay demonstration — agent testified he could not perform an overlay of shoe print over carpet fibers; Goldberg allegedly did so anyway during closing

challenged as misstating testimony

Informal

Trial record page 32751 — Bodziak's specific testimony cited by Scheck

cited to support objection

Notable Exchanges (2)

Barry Scheck•Lance A. Ito

Scheck made a two-part application — objecting to Goldberg's Bodziak demonstration and requesting a jury admonition about objection rulings — Ito denied both without substantive engagement, telling Scheck to keep his voice down mid-argument.

frustrated/dismissive

Johnnie Cochran•Lance A. Ito

Cochran briefly asked whether the closing argument admonition could be incorporated into the instructions; Ito declined, saying the existing instruction was clear enough.

deferential

Credibility Attacks (1)

⚔ Goldberg (prosecutor)

prior inconsistent statement / misrepresentation of record

Scheck argued Goldberg performed a physical demonstration during closing argument that Agent Bodziak had explicitly testified he could not perform, citing the specific record page.

Objections

2 objections (0 sustained, 2 overruled)

Proceeding 7873 • 12 utterances

Criminal Trial

Department 103