Our final witness, your Honor, is Detective Mark Fuhrman, and we are ready to proceed.
Well, we would like to call Detective Fuhrman to the stand, your Honor, and ask him--get his lawyer down here and ask him a series of questions or as many questions the court thinks is appropriate and then move ahead.
All right. You have just filed your memorandum of points and authorities this morning.
I understand, your Honor, and I know you have been busy, so I just wanted to indicate we are at that point, other than those lingering motions.
Well, we have filed a request for remedies this morning that suggested three remedies for the invocation of the 5th amendment by Detective Fuhrman. First to allow us to call Detective Fuhrman in the presence of the jury, or alternatively, at least permit the testimony presented yesterday invoking the privilege to be read to the jury. Secondly, a special jury instruction advising the jury of his unavailability for further cross-examination. Umm, and finally, the admission of portions of the tapes and transcripts regarding prior acts of planting or manufacturing evidence to now be admitted as declarations against interest. The memo filed by the People of course takes a rather different view of how we should proceed from this point suggesting that we simply do nothing, that we do not inform the jury of what happened yesterday and just proceed with the jury in a vacuum in terms of what became of Detective Fuhrman. It is interesting that every case cited by the People in their memorandum involves essentially the same situation and that is a witness who is called cold and invokes the 5th amendment. Not one of these cases involves a witness who invokes the 5th amendment after testifying on direct and cross-examination and after the jury has heard that testimony. Now, the apparent reason for the invocation of the 5th amendment privilege here is this witness' concern for Prosecution for perjury for the testimony he presented to this jury. And we don't challenge that invocation of the 5th amendment. I think under these circumstances that is a realistic concern of the witness, and the case law seems to confirm that where a witness faces jeopardy of perjury Prosecution for testimony previously presented in the case that the invocation of the 5th amendment is privileged or is appropriate.
But the situation before your Honor then is very unique and very different from the situation posed in any of the cases cited by the--by the Prosecution. Your Honor is presented with a conflict between the Defendant's right to present a Defense and the witness' right to invoke a privilege. While that is a unique situation, your Honor, it is not unprecedented, and we have found two cases in California that address the appropriate alternatives that the court should consider when it is confronted with this situation; the Reynolds case and the case of People versus Hecker. And we believe the Hecker case is most in point. Hecker involves a situation where a Defendant is charged with a molestation. He brings forth a witness who will offer testimony that three days before the accusation of the molestation the Defendant's wife called him and sought to arrange a romantic relationship and he informed her that that might be possible once her husband was out of the way, and then three days later she accuses her husband of molesting her child. When this witness was presented, however, information came forth that the witness had some baggage. The witness had apparently made an offer to the wife to pay her if she would drop the charges against her husband. That of course involved potential criminal liability of this witness and the witness indicated that with respect to that--that incident of offering to pay the wife, he would invoke the 5th amendment privilege, but of course the invocation of that privilege would then render his exculpatory testimony unavailable. And the court in the Hecker case said the appropriate way to proceed under these circumstances is to permit the invocation of the privilege in the presence of the jury so that the jury knows the--the area in which the Defendant is--or the witness is invoking the privilege and can simply balance that then against the testimony, the exculpatory testimony that the--that the witness presented. And it is interesting that both the Hecker case and the Reynolds case cited by Hecker cite and rely upon the decision of United States versus Hearst, a case with which one of our co-counsel was intimately familiar, a case in which the Defendant herself in the presence of the jury invoked the 5th amendment privilege 42 times. If I believed in the lottery, I think the no. 42 might have some significance, it keeps coming up here. But in that case the court ultimately determined that the invocation of the privilege was inappropriate, that the privilege was waived by Miss Hearst getting up and testifying herself, so she really didn't have a 5th amendment privilege. But it is interesting that both Reynolds and Hecker deal with situations where the court concludes the claim of the 5th amendment was legitimate, that the witness had a 5th amendment right to refuse to testify. And the court in those cases suggested, well, the appropriate way under these circumstances to balance the Defendant's right to present a Defense against the witness' right to claim the privilege is to let it happen in front of the jury and then let the--let the jury sort it out, because under these circumstances the claim of the privilege is relevant to the assessment of the witness' credibility. And in both of these cases it was not appropriate to simply strike the testimony of the witness, and of course that is not an appropriate alternative in this case. That would deprive the Defendant of essential evidence presented in furtherance of his Defense.
But we believe it is appropriate that the jury know that Detective Fuhrman is invoking the 5th amendment with respect to further cross-examination and they should hear that cross-examination and that invocation of the privilege in their presence. We also have submitted, your Honor, a proposed jury instruction which is tailored and molded on the instruction approved by the supreme court of California in the case of People versus Hill. That proposed instruction simply tells the jury that: "Out of your presence Detective Mark Fuhrman"--this is an alternative, of course--"Was recalled for further cross-examination, that Detective Fuhrman, with the advice of his counsel, refused to testify, basing his refusal upon his constitutional privilege against self-incrimination, thus Detective Fuhrman is unavailable for further cross-examination. His unavailability for further cross-examination is a factor you may consider in assessing his credibility." This is, with the exception of the last two sentences, word for word identical to the instruction given in Hill. We also believe the last two sentences are appropriate because, unlike in the Hill case, the jury has heard the testimony of this witness, they have heard a great deal about this witness, and they are going to wonder what happened to him? Where did he go? Why was he not recalled by the Defense? And this instruction simply informs them that he is unavailable and tells them why he is unavailable. It does not invite speculation about the invocation of the privilege. It just tells them that the invocation of the privilege has made him unavailable and that his unavailability is a fact that they can consider in assessing his credibility.
But then shouldn't I include, if I accept this proposal, shouldn't I then include a sentence saying "You are not to speculate as to the reason for the invocation"?
We do not believe that would--that would be appropriate in a circumstance where the reason for the invocation of the privilege relates to the possibility of perjury in the prior testimony, so we don't believe that--that instructing them that they should--they should not speculate with respect to the invocation of the privilege would be appropriate under these circumstances where the--the Defendant's right of--of confrontation and right to present a Defense is impacted by the--by the invocation of the privilege. But we have not proposed any instruction one way or the other about the impact of the invocation of the privilege. All that we are proposing is that the jury be told he is not available and his unavailability is relevant with respect to his credibility. Your Honor, the third remedy that we seek invites the court to revisit, and I know this is not an invitation that the court will welcome, but we believe that the--the invocation of the 5th amendment privilege, since it has made Detective Fuhrman unavailable for cross-examination about the prior incidents of planting or destroying evidence, which your Honor had indicated was not foreclosed by the--by the prior order of the court, since he is now unavailable for that cross-examination, that those prior statements now qualify as declarations against interest as an exception to the hearsay rule. And we have proffered five very limited excerpts that deal specifically with ripping up driver's license, scratching scabs, giving testimony as needed, whether he saw the events or not, that those particular excerpts from the McKinny tape do now qualify as declarations against interest. In fact, they really present us with almost textbook examples of declarations against interest. Your Honor will recall that California evidence code section 1230 provides that: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness," which clearly the invocation of the privilege makes Detective Fuhrman unavailable in this case, "And the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest or so far subjected him to the risk of civil or criminal liability or so far tended to render invalid a claim by him against another or created such a risk of making him an object of hatred, ridicule or social disgrace in the community." I can't imagine any statements that could have more subjected a person to the kind of hatred, ridicule and social disgrace in the community that--that Detective Fuhrman now faces, than the kind of statements he made in those taped conversations with--with Miss McKinny. And the community that we are talking about of course is Los Angeles, not Standpoint, Idaho.
I don't intend to, your Honor. What I'm saying is that under this exception to the evidence code, the social disgrace that the witness, at the time he makes the statements, may be subjecting to is a social disgrace in the community of Los Angeles and that is where these statements were made and that is the--the degree of social disgrace that we are looking at. And this exception to the--to the hearsay rule really adds a new dimension to the probative weight that your Honor must balance under--under 352. So we believe it is appropriate to once again consider the offer of these declarations against interest. And in fact the Hecker case also mentions as an alternative where a witness has taken the 5th amendment that prior statements then become declarations against interest and can be offered in evidence in addition to the witness appearing before the jury and invoking the 5th amendment in the presence of the jury. So once again, the court may look at these as alternatives, but we believe we would be entitled to do both; to call Detective Fuhrman and if he takes the 5th amendment in the presence of the jury, to then offer these prior declarations against interest since we are foreclosed from confronting him with these statements and cross-examining him about them. And the statements go directly to the precise issue before the jury. They go directly to the--the incidents in the tape where there is discussion of destroying evidence or--or manufacturing evidence. So we believe, first of all, our--certainly our first choice would be to recall Detective Fuhrman in the presence of the jury. Alternatively to at least instruct the jury of his unavailability because of the invocation of the 5th amendment, and that that can be considered as bearing on his credibility. And finally, to permit now the admission of these five very limited excerpts from the McKinny tapes and transcripts.
Good morning. With respect to the motion to have the witness take the 5th--invoke the 5th in front of the jury, what is good for the goose us good for the gander, your Honor. If the People can also have the jury informed that the Defendant has invoked his right, then that is fine, and I would ask that the court add the prophylactic to this as well that the jury is not to speculate why he invoked his 5th amendment right. You know, I mean, it is the same improper thing. Now let me cite the court to section 913 of the evidence code. I don't know if the court has had the opportunity yet to read the People's brief. Has it?
I have not read either brief, but I have contemplated the issue, because the issue became apparent weeks ago.
That was coming, right, as did I, which is when I did the research and then asked a motion be prepared on it.
Right. You won't have to decide it now. So let me cite the court to that, and when the court reads that and reads our brief, I think that it will be very clear, because the case law is actually very clear, thankfully, on this issue. It is very clear from the evidence code that there is to be no comment on or any inferences drawn from the exercise of a privilege and that a jury--that for a jury to be informed of the invocation of a privilege is highly inappropriate and not to be countenanced. The case law that is on point in this regard is clear, and in our motion we cite the court to People versus Ford, a case that--that I think our office is uniquely familiar with. In that case, though, it was indicated from Ford and its progeny repeatedly that the witness should take the 5th outside the presence of the jury and the jury should not be instructed that the witness has done so. And there are a number of cases in that--since the court is going to read the brief, I'm not going to go over each and every case in that regard. Let me simply point out, though, I think it is more germane and productive of the court's time that I distinguish the cases cited by the Defense. The cases cited by the Defense beginning with U.S. versus--U.S. Versus Hearst, we have a completely different situation. In that situation Miss Hearst elected to take the witness stand and speak, testify, and in essence what the court found was you have waived your privilege, you really have none. And so if you decide you will not answer certain questions of the Prosecution, the privilege having been waived, it can then be remarked upon to the jury because everything is fair game. You have--you have--you have lost the cloak of invulnerability that the privilege gives you, and once that waiver has been given, everything that you say is fair game, including your desire to invoke as to certain questions, because there is no such thing as a limited right to invoke in which you invoke in some questions and not in others. Once you waive, you waive. And that was--that is exactly what is so unfair about what the Defense deliberately did to Mark Fuhrman yesterday. I don't stand in his Defense. But you know, you've got somebody on the ropes, he has taken every hit that they can think of to give him. I'm not saying they are inappropriate. But to then--but to then get up and ask him another question they know he cannot afford to answer any questions or there will be a waiver deemed, and to maybe some of the past acts of misconduct and they may be something as simple as--as simple as calling someone in a rude manner, not even using an epithet, but saying, hey, you son of a gun, or, hey, you son of a bitch, or something like that, officers get time off for that. Officers get reprimanded for that. What you do know is why he was going to invoke and that is why it is improper to speculate. That is why any kind of instruction that a witness has taken the 5th should never be given because no matter how many times you tell they don't speculate, that is precisely what the jury is going to do. And that is precisely what Mr. Cochran is asking the world to do with respect to the improper question they posed to Detective Fuhrman yesterday, whether or not he planted evidence, knowing full well that he did not plant evidence, knowing full well that he could never say he didn't plant evidence because the minute he answered that question there is a waiver. It is unfair. This highlights exactly why that is unfair. Excuse me, your Honor. Anyway, U.S. versus Hearst, in that case there was a waiver and so then she invoked. It was proper under those circumstances, with her invoking on the witness stand, to comment on that. Goes to her credibility, it goes to her demeanor, because there is a waiver, so she no longer has the protection of the 5th amendment. With respect to--with respect to the Hecker case--
Excuse me, counsel. Could you approach the side bar without the court reporter, please.
Thank you, your Honor. The Hecker case is also easily distinguished. In that case, first of all, the witness intended to invoke at the time of his initial testimony. That is a significant difference, because, no. 1, is when you know in advance that a witness is going to invoke before they take the witness stand at all in the case, in that situation it is improper to have the witness invoke in front of the jury. What you do is you let you witness invoke and then he is taken out of the presence, the jury is not informed. In that particular case, though, it was dicta because what happened was in that case the witness intended to invoke at the time of the initial testimony, and the court, I believe--yeah, the court was concerned that it would have to strike all of the witness' testimony if the witness invoked as to any of the parts he was intending to invoke. And so what the court did, I believe, was find that there was another way it could have been handled. It found that it was appropriate not to allow the witness to testify under the circumstances at all but it said this: "That if the party calling the witness knew the witness intended to invoke as to certain subject matter, but not as to others, and the party was willing to take the liability of a witness who would invoke as to certain things and not as to others in return for getting some of the testimony, that that party was willing to accept the liability could do so." Of course the jury could then see the witness invoking, but the party has gone into the situation with eyes opened. It was an observation made in dicta in the case. It in no way indicated that it approved of the practice of having a witness invoke outside the presence of the--in the presence of the jury or have the jury informed somehow of the witness' invocation where the party calling the witness did not intend to take that liability on as a conscious thing.
Thank you. As Miss Lewis points out, that was also an appellate court case that was decided before--before 1990, before the supreme court cases that indicate in no uncertain terms and in very clear language that this should not be done in the presence of the jury and the jury should not be informed of the witness' invocation. People versus Hill, also cited by the Defendant, did not, did not urge or approve that the jury be informed of a witness' invocation. It simply found that informing the jury in that case of the witness' invocation was harmless error under those facts because the jury was in fact told by the Judge why the Defendant--the witness was not available. In that situation the Defense had gotten in the witness' statement which was self-incriminating which explained--it was an incriminatory statement, and I can't remember what it was. They got that in the absence of the witness, and I believe it was under 1230 in that case. The Judge, in order to prevent the jury from speculating as to why it came in without the witness testifying on the witness stand, told them that the witness had invoked. What the court found that to be was harmless error; error nonetheless. Harmless because it was clear that the statement was self-incriminating and so the fact that the Judge ultimately did tell the jury that that is why the witness wasn't there kind of didn't matter, but it certainly did not urge or approve the practice urged upon this court by the Defense in any way, shape or form. With respect to the 1230 argument proposed by the Defense, the Defense is now seeking to back door the court's ruling to get in what the court has already deemed to be inadmissible. The same observations apply now as they did then. Unless these statements are true, they are not probative, they are not relevant, and unless we engage in the mini trial of whether or not they are true and how to determine whether or not they are true, they should not be deemed admissible because they are not probative of anything. Also, consider that under 1230 of the evidence code, your Honor, these statements have to have been made in a manner that the witness would think to be damaging to him in either a pecuniary, social or proprietary risk of civil or criminal liability. Excuse me. Now, first of all, pecuniary it is certainly not. He intended to make money on this. But more important than that is that these statements were made in confidence, as Laura McKinny herself stated. There was not an intent for him to publish the tapes obviously. The intent was for the information that was imparted to her to be made part of a fictional work. And now we come into the trustworthiness aspect of every evidence code section. Excuse me, counsel. And under this section the trustworthiness has got to be deemed absolutely nil. We have Mr. Fuhrman making remarks to the screenwriter for the purpose of creating a fictional work. No matter how hard the Defense wants to claim that this is based on reality, this is based in fact. Miss McKinny testified before this court that there was no evidence made to fact check anything that he said, because it didn't matter. It didn't matter whether it was true or not. All it mattered to her was to get his statements, his stories, whether they were true or not. It was information she could use to make a work of fiction. It was not a documentary. And she made that very clear as well. As a matter of fact, the statement she made in North Carolina was "We intended to make up a story." So we have no trustworthiness with respect to any of the events here. The court also already properly ruled that these statements are inadmissible for all of the reasons cited in the brief. I think it is inappropriate and not productive of our time to go back into all of the arguments. The court is very well familiar they cannot be proven true. If not true, not relevant. They are certainly not probative. They were made under circumstances that make them highly suspect after their trustworthiness or veracity. They were made in confidence. And so they don't satisfy any of the requirements of evidence code section 1230. In conclusion then, your Honor, I think that once the court has had an opportunity to read our briefs, and I'm sure the court is familiar with the case law, the case law is clear, thankfully in this matter, that the Defense has no right to have the jury informed of Detective Fuhrman's invocation of the 5th amendment in any way. That would be inappropriate. It would be inappropriate because it causes them to speculate as to why. In the alternative, if the court deems it appropriate to so advise the jury, I do urge the court to advise the jury also that Mr. Simpson has invoked his right against self-incrimination, and if the court deems that appropriate, that then tell them not to speculate about either one because the improper speculation--
Well, that is fine. They away--throw away griffin. They are asking you to throw away case law as well, your Honor. They are asking you to throw away the case law that is cited in the People's brief, supreme court cases, People versus Ford, People versus Mincey. If you are going to throw those out, throw out griffin. I'm not saying that the court should do that. I'm saying that they are equally inappropriate. It is slightly different as to a witness because the witness may take the stand and then all of a sudden invoke and require that there be some kind of measures taken to inform the jury they should not speculate. But when it is known that a witness will invoke, it is not to be done in front of the jury for all of the same reasons it would be inappropriate to do it for the Defendant, because people will speculate no matter how much you tell them not to. With respect to evidence code section 1230, that simply has not been satisfied in any way.
All right. Thank you, counsel. All right. Mr. Uelmen, I will hear your response at 1:30.
Excuse me, your Honor. Before we adjourn for the morning session, I would ask that in the event that a pitchess motion is filed for my client's personnel file, that I be served as well. I don't think the statute requires that, but in light of the court's seeming predisposition to entertain an order shortening time, I would like as much opportunity to be able to respond to it immediately, so would I ask that.
I'm certain counsel will do that as a matter of professional courtesy and I will direct them to do so.
Back on the record in the Simpson matter. Mr. Simpson is again present. All parties are again present. The jury is not present. Mr. Uelmen.
Thank you, your Honor. In listening to Miss Clark's argument, I had to wonder whether we were talking about the same 5th amendment. The 5th amendment that I understand offers a witness a privilege against self-incrimination of a crime. The suggestion that the 5th amendment could have been invoked by Detective Fuhrman for fear of being reprimanded for using naughty words is preposterous.
That's not what the 5th amendment protects against. Moreover, he's not even a detective anymore. What we're talking about is incrimination of a crime, and the crime that entitles this witness to invoke the privilege at this point in the proceedings is the crime of perjury. And Detective Fuhrman's fear of a perjury Prosecution is a very realistic one, especially in view of the veiled threats that have been emanating from the Prosecution. We heard reference to the potential case of People versus Fuhrman and how we would settle a number of issues when that comes about. There is a realistic concern by this witness of a Prosecution for perjury based on the testimony he presented earlier in these proceedings, and that, make no mistake about it, is the only legitimate ground he has to invoke a 5th amendment privilege at this point in the proceedings. And I believe that is a highly relevant fact in terms of how your Honor assesses the impact of the invocation of the 5th amendment at this point in the proceedings. The reference to sauce for the goose being sauce for the gander also represents a misunderstanding--
All right. Well, we'll submit an appropriate instruction, but I think there is an important distinction to bear in mind here; and that is the risk to a witness of whatever inferences might be drawn from the invocation of the privilege versus the risk to a Defendant because the risk to a Defendant is the risk that a jury will use this as evidence of guilt. But the risk to a witness is minimal and your Honor need not really be concerned in terms of the witness himself, what impact an adverse inference might have. We only want to look at that inference in the context of its relevance to these proceedings, and we believe that the fact that the invocation of the privilege makes this witness unavailable to us for further cross-examination is highly relevant to these proceedings and highly relevant to the jury's assessment of his credibility. Now, the case law--there's been reference to the California case law being of one mind on this issue. But what's ignored in the Prosecution's argument is that all of the cases they cite deal with the same situation of a witness who has not testified, a witness whom the jury has not seen, whom the jury has not heard and the impact of having that witness invoke the 5th amendment in the presence of the jury. The case that we are primarily relying on, the Hecker case, addresses this concern directly in the context of balancing the Defendant's right to present a Defense versus the witness' right to invoke a privilege, and they indicate that because, for example, striking the testimony would deprive the Defendant of the fundamental right to present a Defense, it should only be utilized after less severe means are considered.
Well, what we're talking about here are the less severe means, but the less severe means of balancing that right to a Defense versus the right of the witness to the privilege. And Hecker suggests that the appropriate balance in that particular case would have been to let the jury hear the invocation of the privilege and factor that in to their consideration of the credibility of the remaining testimony. And Hecker is a 1990 case cognizant of all of the supreme court case law, cognizant of the privilege contained in our evidence code. But they're saying under these circumstances, we've got to balance the Defendant's right to present a Defense.
The case of People versus Hill did not hold, as Miss Clark suggested, that it was harmless error to give an instruction to a jury that a witness had invoked the 5th amendment. What the Hill case held was that it was not error to deny the Defense request in that case to have the invocation take place in the presence of the jury; and the court noted in coming to that conclusion that the jury had been informed by means of an instruction identical to the instruction that we are requesting here. And it's important to remember that Hill too did not deal with the context of a witness that the jury has already heard from. And that's really the problem we've got to deal with here, that the jury has heard from Detective Fuhrman, they've seen direct examination, cross-examination, they've seen him on the witness stand for six days. They've heard him talked about. They've heard a drove of witnesses come in to impeach him and they know that when he stepped off of that witness stand, it was subject to recall, and they're bound to wonder what became of Detective Fuhrman, why didn't the Defense call Detective Fuhrman back. And what we're seeking to avoid is an inference unfavorable to the Defense because of the unavailability of this witness for further cross-examination. So we want the jury to know he's not available to be cross-examined, and the reason he's not available is because he invoked the 5th amendment privilege and you can consider his unavailability in assessing his credibility. Now, with respect to the alternative remedy that we have sought, the Prosecution has suggested that the five excerpts that we have offered may not be true, they may be exaggerations by Detective Fuhrman. But the prerequisite for admission under section 1230 under the exception to the hearsay rule is that the circumstances suggest reliability, that ordinarily a person would not make statements that would subject him to criticism in the community or potential criminal liability unless they were true. And we have singled out specific instances from the McKinny tapes in which it's very clear that Detective Fuhrman is talking about things that he did. We're talking about, "Did you tear up driver's licenses," and he nods that he did. We're talking about a response to a question, "Under what did you arrest him," speaking about an arrest that took place the night before, a statement about others driving--tearing up driver's license. "You do that, he probably got that from you," a statement where he says, "I've been on several calls in West L.A. where I'm the third or fourth car, and then I go in and provide the testimony that's necessary to get a conviction." In terms of his concerns when he made these statements, bear in mind, this is the Detective Fuhrman who says to Miss McKinny when she asks, "Well, can we use this in the screenplay?" "No. Hasn't been seven years yet, statute of limitations." If that doesn't show a consciousness by the speaker of potential criminal liability, I don't know what does. But alternatively, regardless of whether there's a potential fear of criminal Prosecution or simply a fear of social ostracism, the result is the same under section 1230. These are declarations against interests. They are highly probative declarations against interest, and we believe the unavailability of Detective Fuhrman should render those statements admissible.
Thank you, counsel. All right. The record in this case indicates in our hearing yesterday outside the presence of the jury--and that was an appropriate procedure to proceed outside the presence of the jury because the counsel for Mr. Fuhrman, Darryl Mounger, did advise the court that it was a--and counsel that it was a possibility, in fact, a likelihood that Mr. Fuhrman would in fact seek to exercise his right not to testify under the 5th amendment to the United States constitution. After we held our hearing yesterday afternoon, the record is also clear that Mr. Fuhrman will refuse to answer any further questions as a witness in this case and he is, therefore, unavailable within the definition of evidence code section 240. The record is equally clear that when we adjourned, that the cross-examination as to Detective Fuhrman was adjourned subject to recall for further cross-examination. The subject matter that Mr. Fuhrman is likely and reasonably and appropriately subject to further cross-examination, we have heard over the last day and a half four witnesses who have come in to testify for the specific reason to impeach the testimony of Detective Fuhrman. Kathleen Bell was called--and this is not a particularly compelling reason for further cross-examination since Detective Fuhrman was in fact asked questions about Miss Bell on direct examination and cross-examination and there was sufficient opportunity since counsel on both sides were aware of the facts and circumstances that led to Miss Bell coming to the attention of counsel on both sides. However, as to Miss Singer, as to Mr. Hodge and as to Miss McKinny, Detective Fuhrman was not direct or cross-examined as to any of the statements made by those three witnesses who were called for the specific purpose of impeaching Detective Fuhrman. The prejudice to the Defendant based upon this unique set of circumstances is the inability to further cross-examine as to these three witnesses and the impeachment evidence that they have offered through their testimony; that is Singer, Hodge and McKinny. However, the case law is equally clear to the court that it is not appropriate to call a witness before a jury that counsel know will invoke the privilege, and that is clearly the fact and circumstance here. And the court will, therefore, deny the request to recall Detective Fuhrman at this time in front of the jury. The instruction offered as an alternative by the Defense, which has been already read into the record and which is page 3 of the Defendant's points and authorities, does have the disability of mentioning the invocation of the right against self-incrimination. Evidence code section 913 clearly states that it is not appropriate to comment upon or bring to the finder of fact's attention the invocation of a privilege. California jury instruction 2.25, Caljic 2.25 deals with the situation where a witness in the course of testifying before the jury invokes the privilege and then the jury is then instructed not to infer or imply anything from that invocation. Therefore, the court will instruct the jury as possible--excuse me--as follows: Detective Mark Fuhrman is not available for further testimony as a witness in this case. His unavailability for further testimony both on cross-examination--excuse me--on cross-examination is a factor which you may consider in evaluating his credibility as a witness. Now, having found that Detective Fuhrman is unavailable as a witness under evidence code section 240, the court then has reexamined its ruling with regards to the five excerpts which are now offered as statements against penal interest, and the court having evaluated those, finds that the court's previous ruling was appropriate and the objections will be sustained. All right. Are you ready to proceed?
Your Honor, I would like to address the court. We feel that the proposed instruction that the court is going to give this jury will cause the jury to speculate on the reason for the witness' unavailability.
May we have just a couple minutes, your Honor, to talk about--I think the court knows where we are at this point. Just take a few minutes.
All right. I'm also--and I'm likely to instruct the Prosecution to be ready to start with their rebuttal witnesses tomorrow morning, and we'll take up the issue of admissibility of the exhibits probably later today.
Well, that only happens about twice a week.
The suggestion that the 5th amendment could have been invoked by Detective Fuhrman for fear of being reprimanded for using naughty words is preposterous. That's not what the 5th amendment protects against.
Hasn't been seven years yet, statute of limitations.
If the People can also have the jury informed that the Defendant has invoked his right, then that is fine.
What part about 1:30 don't you understand?