Back on the record in the Simpson matter. All parties are again present. Mr. Simpson is present with his counsel, Mr. Shapiro, Mr. Cochran.
Mr. Spaulding, Mr. Bailey, Mr. Blasier. The People are represented by Miss Clark and Miss Lewis. The jury is not present. Anything we need to take up with regard to Miss McKinny before we resume?
Yes, we do, your Honor. I would ask your Honor to listen to Dean Uelmen with regard to a proposed jury instruction we have to offer.
They normally do, your Honor, however this is a unique situation. I think Dean Uelmen can explain it if you would allow.
Your Honor, we have submitted a special proposed instruction that we would ask the court to give at the conclusion of Miss McKinny's testimony. The genesis of this instruction is section 412 of the California evidence code which provides that: "If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust." Our concern is that the jury may view the evidence with respect to the racial epithets in the tapes and transcripts with distrust since they are not being given the opportunity to hear the stronger and more satisfactory evidence of seeing the transcripts themselves, and if you will, actually hearing the tapes, so we believe it is appropriate under these circumstances for the court to inform the jury of the court's ruling and the reason why they are not being allowed to see the transcripts or hear the tapes. And we have fashioned a jury instruction which actually uses the language of the court to explain to the jury why they will not have that opportunity. In very simple and nonjudgmental language they would be informed that they will not be allowed to see the transcripts or--
Do you know of any precedents for a jury instruction like this, Dean Uelmen? Have you ever seen one like this before?
KEY QUOTEWell, yes. I believe that on occasion courts have instructed the jury in the language--
In fact, we will submit that instruction because we believe the Prosecution has presented weaker and less satisfactory evidence when stronger evidence was available. But that--that instruction should not be used against the Defense in the context of a ruling of the court that precluded the use of stronger and more satisfactory evidence when the--the evidence would have been offered but for that ruling.
Your Honor, this is very obvious attempt to have the jury focus on what they haven't seen and haven't heard. It is like don't think of the marshmallow man. That is all you can think about. And that is what instruction says, think about all you haven't heard, think about all you haven't seen, and that is the intent of this instruction. It is highly inappropriate. It seeks to highlight what the court has deemed inadmissible.
What is the purpose of having rulings under 352 that make evidence inadmissible if all do you is turn around and tell the jury, guess what, there is all kind of things you haven't seen? What is the point? Then you have the imaginations run wild with what they haven't seen. It is bad enough. They know there are eleven, twelve, fourteen hours of tape. They have heard one second and I think they get the picture. Every time Mr. Cochran asks the question, it becomes 42, 43. We are going to be up to 47 if he keeps questioning her. They get the idea. They get the idea plenty. They have heard two excerpts. They said it 41 times. They know he spoke to her for twelve hours on tape. All of that gives the jury the clear view that they had gotten a small snippet. All this seeks to do is highlight this matter, inflame the jury more and get them to think about how awful the rest of the 39 or 40 times were in which he uttered the word. That is--it is so obviously inappropriate that I don't think I need to argue this any further. With respect to whether section 412 could form the appropriate basis of a jury instruction, I don't think I disagree with that. I think that the court could appropriately instruct that is the evidence code. That is the law and it is available to both sides. If Dean Uelmen thinks that we are going to argue section 412 with respect to this evidence, he is sadly mistaken.
Oh, I think that is exactly what he said, that the People would argue this instruction against the Defense to point up the fact that they could have offered better and stronger evidence, i.e., more inflammatory, but they failed to. And in point of fact I can assure the court and counsel that will never occur, not with respect to the tapes. They have got his voice. His voice. I think that is pretty strong evidence that he said it. So this is--this is nothing but an attempt to highlight the inflammatory material that has been ruled inadmissible and to cause the jury to speculate on what they haven't heard and to imagine the worst which I think--I don't know. It is already so inflammatory what they have heard, your Honor. The Defense has already gotten the benefit of the most prejudicial and inflammatory thing I have seen admitted into a court ever, you know, by virtue of what we have in Miss McKinny's tapes. Now they want to have the jury speculate how much worse it gets. It is obviously improper.
Your Honor, the instruction tells the jury not to speculate. It is precisely the opposite of what has just been represented to you. The instruction suggests the court tell the jury, "You should not speculate about why you have not had an opportunity to see the transcripts or to hear the tapes." We are not inviting speculation. What we are trying to avoid is speculation under an inference ordained by the evidence code where the jury is invited to view the evidence with distrust because stronger and more satisfying evidence has not been presented. Our problem of course is that as your Honor concedes, the two excerpts that the jury has heard are among the most innocuous and least inflammatory of all of the evidence available, and your Honor sustained an objection to Miss McKinny's characterization of the evidence in that respect. We believe the jury should hear the reasons why your Honor is keeping out those other 39 in the language that you used in your order, that your examination reveals that the epithet--
KEY QUOTEWe think it is appropriate for the jury to be informed of that order so they know why they are not hearing all 41 of these.
All right. Thank you, counsel. All right. I will take the request for the instruction under submission for consideration at the time of the jury instruction conference. All right. Deputy Magnera, let's have the jurors, please.
Your Honor, may I just ask one question with regard to the question I asked Miss McKinny yesterday? Would the court care to reconsider that, whether or not I can ask her if she can characterize this--the one tape portion that was played as compared to the others?
Our concern is that the jury may view the evidence with respect to the racial epithets in the tapes and transcripts with distrust since they are not being given the opportunity to hear the stronger and more satisfactory evidence of seeing the transcripts themselves.
It is like don't think of the marshmallow man. That is all you can think about.
The Defense has already gotten the benefit of the most prejudicial and inflammatory thing I have seen admitted into a court ever, you know, by virtue of what we have in Miss McKinny's tapes.
The instruction tells the jury not to speculate. It is precisely the opposite of what has just been represented to you.
Do you know of any precedents for a jury instruction like this, Dean Uelmen? Have you ever seen one like this before?