All right. Back on the record in the Simpson matter. Mr. Simpson is present before the court with his counsel, Mr. Douglas, Mr. Blasier, Mr. Neufeld, Mr. Scheck. The People are represented by Mr. Darden. The jury is not present. All right. Counsel, the record should reflect that yesterday afternoon the court met informally with counsel here in the courtroom. And the court conducted an informal evidentiary proceeding concerning the exhibits that have been offered by the Defense so that we could hopefully streamline our proceeding here this morning. All right. Are both sides ready to proceed with their evidence list? Mr. Darden?
As the court is aware, I have some objections to certain specific items. Mr. Goldberg and Mr. Clarke--
All right. And I noted this morning that the court had not been served with a copy of your writ. Is that an oversight?
All right. Well, Mr. Darden, which of these are you prepared to go forward on? How about the first page? Can we at least get started on the first page? All right. Let's start with the first page. Exhibits 1000 and 1001. My understanding, Mr. Douglas, is both of those are withdrawn by the Defense; is that correct?
All right. There is an objection to 1003 which is a photograph of the Defendant and his daughter at the reception. It is an 8-by-10 blow-up. Mr. Darden, my recollection is that you raised the objection to this.
Same as before, your Honor. This is a photograph in which the Defendant is posing with his daughter. This photograph lacks angles any degree of trustworthiness or reliability. He is posing for a photograph and so to suggest to the jury that this photograph is an accurate depiction of the Defendant's demeanor throughout the evening of June 12th, I would suggest is misleading. It be misleading to the jury, so there is a 352 objection to that photograph.
Your Honor, I thought that the Prosecution was making a foundational objection as their papers to me suggested. Clearly Denise Brown, Tia Gavin, Kato Kaelin, laid the proper foundation that that photograph fairly and accurately reflected a particular review at that time of what both were wearing. There was an added focus from that picture on Mr. Simpson's hand, confirming that there was no cut on his hand in that picture, through Mr. Kaelin. I think it is in fact admissible.
All right. I think there is an adequate foundation. Clearly it is a photograph of a photograph of a father with his daughter at a happy family occasion. I don't think anybody would take it as anything else. But it does have probative value as to the condition of Mr. Simpson's left hand and it does have some relevance as to what he was wearing that evening, so the objection will be overruled. All right. No. 1010.
I'm sorry? You may. The record should reflect we have been joined by Mr. Goldberg. The next objection is 1010 which is Officer Riske's report.
It was testified to at page 14195 of the transcript to impeach. I would also argued that it is a statement of a party offered against a party and for those grounds there is an exception to the hearsay rule.
Contrary to public opinion the LAPD is not a party to this lawsuit and it was used only for impeachment purposes; a small part of it, not in its entirety. The--any portion of it that was used for impeachment was read into the record. It is in the record. Counsel can certainly argue that in front of the jury. It is hearsay.
I would also, your Honor, that it has sufficient guarantees of trustworthiness, which is the catchall exception to the hearsay rule, such since it was in fact a report it could even arguably, although I don't think a proper foundation was made, but clearly there can be no argument that it is a business record. It was prepared at or near the time of the events by one that was charged with that duty for purposes of accurately reflecting what he saw at that time. And I think for all of these grounds, under the catchall exception at least, it would be admissible.
All right. I will overrule the objection to the extent that it was used, a particular passage in this was used. That portion that was actually used as a prior inconsistent statement to impeach Officer Riske will be allowed. The remainder, however, the objection is sustained. All right. 1011, objection to this photograph which is an outtake from a videotape, from the, as I recall, what was it, American Journal?
And during the course of our discussions either counsel may ask to approach to look at the exhibit itself.
Let me indicate this: I am now arguing exhibits that were admitted during witnesses that were examined by Miss Clark, so I need to take a look at that.
Let me direct your attention to section 2346. This was a cross-examination of Detective Phillips regarding his obligations to notify the Coroner, so the concentration should be on 2346, section 2346. It is about mid-page.
The objection to this document is hearsay, lack of foundation. It is subject to many different interpretations, as I recall from the testimony from the three homicide detectives in this case. It would be misleading.
I think, your Honor, on transcript page 15011 to 12 Detective Phillips laid an adequate foundation for the introduction of this document. I think it was also used to impeach. It was also used as a business record. I think that all of those--also, your Honor, since it is a portion of the police manual, it certainly carries sufficient guarantees of trustworthiness so as to justify other grounds as an exception to the hearsay rule. For those reasons I would move for its admission.
All right. It will be admitted; however, only section 238.46 will be admitted. The remainder will be redacted. All right. 1017.
Your Honor, excuse me. Would the court do the redaction or the clerk or should I do the redaction?
All right. The objection will be overruled; however, the court will highlight section 10250 with a yellow highlighter directing the juror's attention to the portion that is relevant and I will draw an "X" through those sections that are not relevant to their consideration and save you the redaction problems. All right. That objection is overruled. All right. Next item is special order 21, LAPD special order 21.
Same response, your Honor. On pages 15018 of the transcript an adequate foundation was laid. It was used to impeach. It certainly is relevant. I think it also qualifies for a business record and it carries sufficient guarantees of trustworthiness.
I would disagree that it was used to impeach. I think the officers testified they were aware of the--their obligations.
All right. That objection will be overruled. All right. No. 1019 and 1019-A. This is the--my recollection this is the tape-recorded conversation between Detective Heath--excuse me--Richard Heath and Detective Phillips.
I think the transcript involved both conversations as well. If the court will recall, it reflected Mr.--Detective Phillips' conversations with the Coroner on the first call and also his delayed second call. I think it very relevant. I think that Phillips was able to authenticate the actual conversation. It certainly goes to his state of mind. It certainly was used to impeach. I'm not sure of the court's practice in terms of which is the real evidence, if the document itself can go in or simply the tape. I will leave that to the court's discretion.
Consistent with case law, the transcript is not evidence. As for the tape-recording itself, it is hearsay. Detective Phillips was here to testify to having placed a phone call to the Coroner's office. I don't think it was used to impeach him at all. He told us what he said and what he did and why he did it and he told us the time, the time frame in which he did those things. This is hearsay, totally completely hearsay.
All right. My recollection is that it was used as a prior inconsistent statement, so the objection will be overruled. All right. No. 1020, statement of Detective Lange.
The court has discretion to require the presence of a transcript of any tape-recording.
There has been no attempt to make certain that the transcript is an accurate depiction or an accurate copy--
All right. But the court listened to the tape recording, had the transcript at the time it was played in court, and I make that finding now. All right. As to 1021.
Your Honor, that document was used to--through Mr. Lange to impeach Detective Phillips. As the court will recall, there was the discussion of whether or not Lange had been informed that Mr. Simpson and his wife had been involved in past marital discord, whether or not Phillips had been told by Fuhrman that Fuhrman was aware of that discord and had been at the Simpson home on a prior occasion. Phillips had denied that ever occurring. We then used Lange's statement to impeach him.
And that was read into the record and the witness was confronted with it and that is in the record. The police report is, nevertheless, hearsay, your Honor.
I would appreciate the court's ruling that that portion that was used should be allowed, but the remainder redacted.
Are we going to have a page, an eight-and-a-half-by-ten-inch page and then at the bottom of it have one sentence in it and everything is redacted? I think that is more than a little bit unfair. In any event, the witness testified to this, Judge, in front of the jury. The police report is hearsay.
Given events, your Honor, that have transpired since the introduction of that document, Mr. Fuhrman's credibility is very important. Whether or not there has been some sort of code of silence is a real issue the Defense has raised. The fact that Mr. Fuhrman's partner chose not to recall or did not recall a very important aspect which we think leads to an argument that there was a rush to judgment, the fact that another detective placed that in his report, are all pieces of evidence that are central to the puzzle that we are attempting to create or to make to demonstrate the code of silence, the rush to judgment, the possibility that others would say things under oath, even less than truthful, to protect one of their own.
And counsel is going to ask the jury to speculate a number of things and paint all police officers with the same brush. And this is hearsay and it is prejudicial, given the apparent intended use of the document.
I would say all argument we are offering against the Prosecution is prejudicial. That is not the test. The test is whether it is unduly prejudicial in light of the probative value. It is very probative that an officer wrote a report conflicting with the statement of another officer. It is very central to the case, given things that have transpired since the introduction of this document.
All right. The--in the second full paragraph there is a notation that Detective Phillips had advised Vannatter and Lange that Mr. Simpson and Nicole Brown Simpson had been embroiled in previous domestic violence situations, one of which resulted in Mr. Simpson's arrest. That was a statement that was inconsistent with the testimony here in court. Therefore, this second paragraph will be allowed; however, the hearsay objection to the remainder is sustained.
I'm going to leave in the complete second paragraph. Second paragraph states as follows: "Upon arrival at the crime scene detectives were met by Detective III Ron Phillips, West L.A. Division homicide coordinator. Phillips stated that victim Brown was the ex-wife of O.J. Simpson, the well-known athlete/actor. Additionally. Phillips stated that Mr. Simpson and victim 1 had been embroiled in previous domestic violence situations, one of which"--"One of these resulting in the arrest of Mr. Simpson." That is the only relevant portion on this document with regards to that testimony. The remainder will be redacted. All right. 1023, notes of Mark Fuhrman.
KEY QUOTEReference was made at page 15123 and 24. I think they were used to impeach. I think it very--it could also qualify as a business exception. I believe Detective Fuhrman also adequately authenticated the accuracy of that report. I think it reflects his state of mind. I think it also carries sufficient guarantees of trustworthiness to justify its admissibility.
One, your Honor, it is being offered to reflect not necessarily the truth of the matter asserted, but that certain things were said. It is being offered, your Honor, to impeach. It is being offered to reflect the state of mind of the writer.
Because it talks about those things that he observed that he thought were important at the time that he was walking through the crime scene.
It is also, your Honor, being offered to establish--and to establish his frame of mind in terms of what he knew and when he knew it, which we may then use to dispute some of the representations that were made at the time, that perhaps there had been a gunshot wound to one of the victims, that there was some uncertainty or whether there was certainty as to the nature of the actual crime. It is also going to be very important when we attempt to argue the significance of the picture that he is pointing to and what was in his mind at that time.
All right. 1027, which is--this is the freeze frame of Mr. Fung holding a paper bag coming out of the location where Mr. Goldman's body was located. Mr. Rokahr appears in the photograph, as does Miss Mazzola and the two Coroners. Mr. Darden, are you familiar with this one?
I think the foundation was adequately laid by both Phillips--I think Fung also was capable of laying the proper foundation. I think it is also self-authenticating.
Part of another video we will be objecting to, given the nature of the lens used to take that video, which as the court is aware, this telescopic lens tends to condense space and distorts space as well. It will be misleading to the jury. It will give the jury the impression that there are many, many individuals stomping over the crime scene in a very shall very, very small area, which is not--
--necessarily the truth. As the court may recall, when I looked at that video you couldn't tell if people were on the sidewalk or in the crime scene. It wasn't until we saw other videos that we could actually determine how far and how much distance there actually was from different individuals. It is misleading.
I think the Prosecution went through great pains to call other witnesses to attempt to rebut any suggestion that there are a lot of people stomping through the scene. The picture speaks for itself. The arguments of counsel go more to weight than to admissibility. It is in fact self-authenticating. It is not unduly misleading. I think that both sides will be capable to draw whatever conclusions they deem appropriate from the pictures, but certainly given the other testimony of other witnesses, Mr. Darden's concerns are not well-taken.
They have never called a witness to explain to this jury the problems with space and distance in this video and in this photograph, Judge, so there is no evidence before the jury that will help them determine what the actual distances are between different objects and different individuals.
If I am not mistaken, they called the photographer themselves, your Honor, who took the video from which this was drawn to talk about where he was, how he did it, whatever the distortions may have been, so the jury is apprised of those issues.
All right. But the issue depicted is Mr. Fung coming out of the area of Mr. Goldman's body holding the paper bag and that is the area and that is what it depicts, so the objection will be overruled. All right. 1029, this is the two-page fingerprint report.
It may have been. My recollection is toward the end when we got to Mr. Aguilar we went through that again.
If it is in fact 1323, I would like to keep the fingerprint documents together in sequence.
All right. We'll take this one under submission. My inclination is to sustain the objection to this, since it appears also to be--to appear as Defense exhibit 1323 for which there was no objection.
I believe this is also another document, your Honor, that was authenticated by Mr. Aguilar. Can I just see that?
Let's do this. We have two sets of these fingerprint documents. Let's compare those and see which one is which, so we will take those up later. Mrs. Robertson, remind us to look back at the fingerprint documents. All right. 1031, Coroner document. Objection is foundation.
All right. Objection sustained. All right. 1036, photograph. Where does this appear in the transcript?
It focused on the issue of contamination, whether in fact that appeared to be Mr. Goldman's body, whether in fact there appeared to be a glove on the body. It was very central at that time to issues that we were raising as to the integrity of the crime scene and to show the lax--or the apparent lax manner in which some of the crime scene and the victims and the bodies and the evidence were handled.
There was no testimony to establish whose gloves they were, how they got on there. This was a photograph that pertained to the point in time when Ratcliffe and Jacobo were taking care of the bodies and Mr. Goldman's body was on a sheet and there was a pair of plastic gloves on his body. Whether or not that actually proved any contamination or transferred from one body to another was never established, never linked up with any of the appropriate witnesses.
Oh, I think the jury was able to glean from the evidence, your Honor, that that--even the Prosecution's theory is not that that--those gloves were left by the killer in the case. Those were gloves that were consistent with the kind of gloves that we have seen in court that were worn by the criminalists. They are there on the body after the body has been moved, if I'm not mistaken. The body is on the walkway. Therefore it is clear, or at least we must give some belief, that the jury can extrapolate that those gloves were placed there by some police official. The fact that no one knows how they were there or would want to own up to why they were there is not surprising.
Your Honor, somebody will own up, if the Defense had decided to call the witness that would have been appropriate for that foundation. They never did. And they are asking the jury to speculate that something improper was done without ever having called the witness to establish that something improper was done.
It appears to be one of Mr. Rokahr's photographs and appears to have a frame stamp on it of 1:94.
I mean, your Honor, I don't think that a foundation necessitates us proving whose plastic gloves are shown on Mr. Goldman's body when it is laying on the pavement. I think that the foundation that is necessary for the admissibility of that photograph is that this was a photograph on June 13th fairly and accurately reflecting the body as it was at some point in time.
All right. Objection sustained. All right. 1043 is a videotape of the Bundy crime scene. Which videotape is this?
And Mr. Douglas, and Mr. Goldberg, you were part of our conversation yesterday about these videotapes as well. How do we propose to redact these to the portions that were used?
Mr. Harris is currently doing that as we speak, your Honor, since he has been present during the playing of all our videos. He is familiar with all that has been played. We will then show them to Mr. Goldberg at the conclusion. As the court--by the way, your Honor, this was the video where there was a preliminary objection because we didn't know who the photographer was, and this was a 402 hearing with Lange and there were strenuous objections at those times. We had the hearing. Lange laid the foundation. The court overruled the objection and it was then played for the jury, but attempts had been made much earlier in the trial for this snippet and then we were able at that point to lay another foundation.
The objection on this is not foundation. The objection is 352, your Honor. And the problem that was presented--and I think actually the court is in a better position to assess why it is 352 now than before after having seen all of the photographs and all of the tell from the people at the crime scene and the testimony of the photographer, videographer that the people called to put the American Journal photograph into perspective which is this: That this video was actually taken by someone across the street. All of the photographers, according to that testimony, were across the street. They were not allowed to be anywhere near the crime scene. As a result they had to use a zoom lens. In the use of the zoom you have a compression of space, making it appear that everybody is on top of each other, crawling all over each other. That is the problem with this video. It is very misleading and confusing, highly prejudicial to the accurate depiction of what was going on at the crime scene and the manner in which it was handled. The stills are actually much better because there isn't nearly as much misleading information. And I think that if the court were to admit the stills to show what--what they want to show is how there was--were mistakes made in the handling of the crime scene. For example, Rokahr looking in the mailbox, someone holding a coffee cup and Dennis Fung stepping out of the crime scene with a brown bag in his hand and not wearing any gloves. That indicates everything the Defense needs in terms of being able to communicate to the jury what mistakes were made in handling the crime scene. Fair enough. And the People would withdraw their objection to 1043-A, B and C, but I think that the video is unduly misleading and confusing because of the manner which it was shot, and I think that that would be unfair.
All right. Then the People withdraw their objection to 1043-A, B and C. What I will do is ask Mr. Harris to exhibit to me later today 1043, the portion that was shown.
Your Honor, these videos were all taken across the street; those that the Defense seeks to introduce, those that the People have already introduced. Two, there was, and I forgot his name now, the African American gentleman with the balding head who testified because he had been hired as a stringer to take photographs on this day and there was a major quality of evidence focusing on that very issue, in fact responding to Miss Clark's concerns that there was this element of distortion. Therefore, the argument that she has made, which parrots those made earlier, simply go to the weight to be given; not to the admissibility of the tape.
But Mr. Douglas, all I'm saying is, gee, before I finally decide, I would like to see it one more time.
Your Honor, for your assistance, I have identified at page 17904 of the transcript when the discussion of this begins, at least for these segments the court read out, the counter numbers, because these were videotapes that had counter numbers, so I think they were--
All right. All right. The record will reflect that exhibits 1044-A--1044, 1044-A, 1045, 1046, 1046-A have been withdrawn by the Defense.
Your Honor, that was discussed on transcript page 17998 through 18001 concerning an entire area of cross-examination of Detective Lange as to the importance of having a body examined soon. It was used to impeach. It is used--offered as an exception to the hearsay rule.
The People have no objection to the pages 29 through 38. The People object, however, to the last two pages or three pages offered concerning stomach contents for which Detective Lange could not have been impeached. It is inappropriate, improper impeachment of him. That is beyond his field of expertise. It has to do with assessment of time of death for stomach contents.
Mr. Douglas, that is probably--because that portion was not used with Detective Lange--
All right. Then what we will do is sustain the objection to the portion that was not used.
Well, the People would urge the court to sustain the objection even if the portion was used for stomach contents because it would be improper impeachment because it is beyond the witness' field of expertise.
All right. I heard him only acquiesce to the part that was not used. I can't remember if it was used with Detective--
No. We have agreed that it is just the physical observations made by the investigating officer at the crime scene; has nothing to do with autopsy examination or anything like that.
Well, that--the part about autopsy examination and time of death begins on page 30 in which case it should be--the only thing that is really relevant to Detective Lange is the first page, 29.
Your Honor, I am willing to agree to the redaction of the bottom quarter of page 38 beginning at examination of stomach contents and page 40 and 41, which would be 39, rather, the bottom of 39 and through page 41, because I don't think that those were used. To the extent that other sections were used to impeach, I would stand on the court's wisdom after reading the transcripts.
How do you impeach a detective with the examination of bodies to determine time of death?
I don't recall specifically what was done, so as I say, I'm not willing to concede that at this point.
All right. I will look at 17998. All right. But we do accept the concession to remove those last two pages?
I think that is self-authenticating, your Honor. There was a foundational objection, since she has been called as a witness. There can be no real sincere challenge to the accuracy of the photograph.
All right. The objection is withdrawn. Okay. 1055, my favorite objection, mag-lite. Miss Clark.
Okay. Mr. Darden indicated yesterday he did not know if there was an objection to 1062, 63, 64 and 65 and he wanted the ability to reinspect those items.
For the record, the golf bag has been inventoried by the court's clerk at least twice, if I'm not mistaken.
All right. 1071, crime scene field unit protocol and procedures manual. Miss Clark.
This is the black binder that contains the draft manual of the Los Angeles Police Department. I don't think it was recognized by Dennis Fung or Andrea Mazzola, but Greg Matheson and Michele Kestler both testified that they did not recognize all the documents in there, they had not reviewed the entire manual; however, it was a draft manual. And I think both of them stated that there were certain things in the manual they disagreed with, so there is no authentication for it and there is no exception to the hearsay rule.
Well, yeah, but I mean the documents within it. They can't actually go through it and say that they recognize all of the documents within it even.
Matheson testified that this was a manual that he was putting together for purposes of accreditation, and the testimony is pretty clear from the witnesses, some of them are handouts that some of them recognize; some weren't. Michele Kestler said she reviewed all of them. Some she agreed with; some she didn't necessarily agree with, but hadn't finished the process of finalizing them. I mean, it is what it is.
Actually it was the supervisor of the trace unit, as counsel will recall, that was in the process of putting it together and he stopped when that supervisor either left or was transferred. There was some testimony to that effect. Mr. Matheson was never personally putting this together, if that is what counsel is suggesting. I don't know if he is. But at any rate, the point is to me this isn't even arguable. There is no exception to the hearsay rule under which something that is not in effect comes in and to which every page or every handout has not been authenticated.
Well, the issue is what is it being used for? I think that the issue in the case is the running of the lab with either--without a manual or with a quasi-manual. Now, as we go through the list of these objections--
Yes. We are not--the fact that they have such a manual--and at various different points as we go through these objections certain parts of this were used, and I think not objected to, certain parts of it--I don't--I think everything that was used is not objected to. I may be wrong. There are some others here.
I thought there was only one--there is only one particular document or two particular documents that I can recall being used from that. One was the protocol on how to collect blood, which we objected to. It was marked several times as a number of different exhibits. And the other one was an ancient memo from Chief Gates that I believe Michele Kestler was asked about, and Mr. Darden objected to that or will object to that.
There is also a section on forensic photography on how to take pictures that was shown to some of the witnesses, and Mr. Ragle testified about that, so it was used to that extent. It was used for impeachment at various different times. I'm not--I don't understand--if the objection is that that is not what it purports to be, then I just don't think it is well taken.
All right. The court will sustain the objection under 352 because it is a draft manual and of little probative value.
If I understand, we can, of course, make references to the fact that they were shown this manual and they were impeached with it? You are not ruling out reference to the manual by any means as it appears in the transcript?
We can't pull the manual out and start showing the jury pages that weren't shown to the witnesses?
But if you are smart in your argument, you won't get down to quibbling about the manual, will you?
Well, I think it is of some relevance that we have a crime lab that doesn't have a manual, your Honor.
Your Honor, we are not making a motion to strike that testimony so there is no point in arguing about that.
If you think quibbling about lines in a manual is going to persuade this jury one way or another--1083.
KEY QUOTEI'm sorry, 1078 is the next objection. This is the videotape of glove on a blanket.
Yeah. This was the famous blob that was on the blanket that we had extensive arguments about previously. I renew those arguments here. I don't care to restate them because I know that the court heard them at length previously. In addition to that, your Honor, as we have previously discussed yesterday, we were objecting to all of the videotapes conditionally upon redaction, and that would pertain to this as well, but I think we have basically agreed to that--the procedure for handling that objection.
All right. The objection then is overruled subject to the redaction of the portion that was used on that one. 1082, the objection is--any argument on that?
All right. The objection is overruled subject to redaction of--to the portion that was used. 1083.
All right. The objection will be overruled subject to the redaction to the portion that was used. All right. 1084.
Your Honor, this was the evidence collection sheet that I referred to previously in the last argument that I made. This particular one was shown to Dennis Fung. As I said, it was marked a couple of times. And Mr. Fung testified--let me get the page citation--I don't have personal knowledge of this, but I was told that Mr. Douglas indicated that there was no foundation for this and they might be withdrawing this.
I can clear this up if you want, your Honor. The 1084 is the three-page handout dealing with how to collect the bloodstain. It is also 1118 that was shown to Miss Mazzola and then it was even shown later to Michele Kestler. I will see if I can get that reference.
And that would be 1319. Now, when Dennis Fung was shown this he of course couldn't remember seeing it before. When Miss Mazzola was shown this, and this is at page 24396 of the transcript, she acknowledged that this was what she was given at the SID mini academy, that she was familiar it is the handout on how to collect the bloodstain. I would note that this is the same three-page document that we were given by Fung and Mazzola at the split hearing on how to collect the bloodstains. I can't--I'm fairly astonished that they can come in here and object to this on lack of authentication. It is just an absurdity. And then on 1319, that is the same exhibit, which is at page 42003 of the transcript, Kestler acknowledges this.
I will check it for you. 42003 of the transcript. It comes up again, but I think it is admissible simply on the basis of Mazzola's testimony that, yes, she was familiar with this as the document that they handed out at the SID mini academy on how to collect the bloodstain. It was up on the elmo. It was--the jury has seen it. And I suppose that for the sake of clarity, we could cross-reference them.
Well, your Honor, these--these issues are really very simple. First of all, counsel is right, Mr. Fung did say that he hadn't seen this, so there is no authentication there. I'm not positive about Miss Mazzola because I hadn't recalled her having been asked about it, and Miss Kestler was only asked one question about this document and nothing as to whether it is a current policy, I mean, no authenticating type questions as to what it--what it constitutes specifically. And I'm also looking at 42003, but there is a very simple way of resolving these issues and that is that there is something called the hearsay rule and we don't allow hearsay into court unless it qualifies under some exception. We do have exceptions for materials of this kind when you are cross-examining an expert witness under 1071, as I recall. We've argued this numerous times in the past. If they have read, relied or considered this type of material, and then you don't get to introduce the underlying report, even then, even if the witness says, yes, I recognize this and I relied on it. You simply get to ask them questions about it, because the underlying report is still hearsay, it is simply coming in under this evidence code provision for the purposes of testing the--
The opinion and the underlying basis for the opinion of the witness, so you can cross-examine them on it, but you don't introduce the underlying document. So I don't see any hearsay rule exception to allow this in, any authentication for it under any one of those hearsay exceptions that they read, relied or considered it. At any rate, even if they were cross-examined on it, which they weren't, as to things in the pages which were inconsistent with what they did or whatever, which is not the case, but even if they had been cross-examined, the cross-examination would stand but the underlying document itself would not come in.
Your Honor, at page 24396 of the transcript, question of Miss Mazzola: "This is in regard to 1118. I show you this, ask you to take a look at it. "Item no. 13, okay. "Question: Look at that. Do these pages represent a handout that you received at the SID mini academy? "Yes, they look familiar." And in that handout it goes on to discuss how they should collect the bloodstain. There was extensive cross-examination about how you were supposed to get the whole thing, particularly for purposes of RFLP analysis. This is the handout that they gave us on how they collect bloodstains which Mazzola authenticates and Kestler suggested and Fung forgot about. But there is no question as to what it is. It is not a hearsay problem here. This is their instructions on how to collect a bloodstain. It is relevant for many different points. A impeached them on the fact that they didn't follow the procedure, because if they followed their procedure, then they should have removed all the blood from the Bronco.
No. I'm saying that it is--it is--well, it is offered for impeachment. It is also a business record of the SID laboratory with respect to how to collect the bloodstain that was given out to the criminalist as a record that she is supposed to follow. So in that respect it is not even hearsay, it is being offered--well, it is a business record. It is being offered as a set of instructions on how they are supposed to go about collecting bloodstains. It is offered for impeachment with respect to the--the techniques involved and in contrast to other techniques. It also comes in as a document that is reasonably relied upon by experts in the field. These are their experts. These are the procedures that Mazzola at least acknowledged she is supposed to follow in the collection of blood evidence, so it comes in under--as a basis for her expert opinion as to how you are supposed to collect bloodstains at a crime scene. So there is a number of different grounds to admit it and the--I'm very surprised that they could object on authentication grounds, given the testimony in the record. In fact, they turned this over to us at a split hearing in discovery as their method for how to collect the bloodstain.
And no one ever authenticated having seen it and it doesn't have any relevance and it doesn't qualify under any hearsay exception. I'm not even sure of the theory under which it is being offered.
The only problem here is with respect to the actual testimony, Mr. Fung said that he couldn't specifically recall seeing this form before, but he had seen one like it with respect to what are supposed--what items are supposed to be in the crime scene truck. And this is the only document that they ever turned over to us as to the list things that are supposed to be in the crime scene truck.
Those were the same objections that I previously made to the videos, your Honor.
All right. Those objections will be overruled subject to the redaction of the portions that were actually displayed to the jury. All right. 1106 has been withdrawn.
1116 is another one of the handouts to the field procedure--from the field procedures manual, as I recall. And we objected to that on hearsay, no authentication, and irrelevant grounds. I just wanted to check the transcript to--Mr. Neufeld can be heard and maybe I will just respond to him.
Your Honor, this has to do with what they are supposed to do with photographs at the crime scene, and just like 1118, Miss Mazzola did testify that they did receive a handout on forensic photography. She couldn't be sure that this was exactly the same one, but she did remember the two-page handout on forensic photography, and it certainly could be the same one. And for all the same reasons that Mr. Scheck already articulated for item 1118, I think they apply here with equal force. There is no difference other than the fact that she is not quite as absolutely certain. Short of that, I think the same degree of authentication has been established and thus the foundation has been laid. One second.
If their objection is authentication, okay, I'm limiting myself to authentication argument because obviously all the other arguments in terms of impeachment, a business record, all the arguments that Mr. Scheck already made, would apply with equal force here, so there is no reason to restate them, so I'm assuming that their objection is limited to authentication. But on this document, unlike--unlike 1115 where I--we withdrew it because we agreed there was not sufficient authentication by the witness, here again there is the authentication by Miss Mazzola.
The alleged authentication that counsel refers to on page 24249 of the transcript starting at line 11 is by Mr. Neufeld. "Show you what has been marked as Defendant's 1116. Ask you to take a look at those two pages. Miss Mazzola, is 1116, Defense 1116, the handout that you received on forensic photography?" "Answer: I don't know if it is the exact handout that we received. "Question: Could be? "Answer: It is possible." I mean, that is the skimpiest authentication I think I have ever seen in a very long time--
"However, well, you say you recall receiving a handout on forensic photography, did you not? "Answer: Yes." So that is the only handout.
So she received some handout and she--she says it is possible that it could be this one. That just doesn't even come anywhere arguably close to being authentication. But also, I would renew and restate the objections that I previously had. I mean, unless there is something inconsistent about this or they have been cross-examined about it, yeah, possibly that cross-examination is admissible under 1071 of the evidence code.
Your Honor, the only point is, is that we received a group of handouts from the Prosecution. This is the only handout on forensic photography. There isn't any other handout. If they were suggesting that there was another one, we could under perhaps the authentication might not be adequate. If there is only one and she says she did receive one, this could be it and that should be adequate.
All right. The objection will be sustained on two grounds: One, authentication, and two, Mazzola wasn't the photographer. If you had asked these questions of Mr. Rokahr, that would have been different. All right. Number 1117. This is the Prosecution videotape of the evidence collection demonstration.
Yes, your Honor. We simply objected to the sound on that and asked that that be redacted out pursuant to the court's previous rulings.
All right. Then the objection is overruled subject to the sound not being played during the course of the--if the jury wishes to see this video again. All right. 1118 we have already discussed. 1120. 1120 is the report of a statement by Andrea Mazzola.
Yes, your Honor. This was actually the subject of a previous court ruling where counsel wanted to cross-examine Miss Mazzola about an interview that she had with D.A. investigators where they were asking her about a treatment for a book or a screenplay that someone had written to the effect that evidence had been planted. I don't know whether the court recalls that, it came up during Miss Mazzola's testimony, and the court ruled that the court would not allow cross-examination of--on that subject matter. There was very limited cross-examination as to their being an interview and limited cross-examination, as I recall, as to whether or not she said something or other about the blood vial and then she was shown this document and said she had never seen it before to recognize it. And there is no authentication for it. There is no foundation for it. It is hearsay and it should also be excluded under the court's previous rulings on this issue.
All right. Then the objection will be overruled. That is what I had from my notes from yesterday. All right. 1122 and 1123, Mr. Goldberg, if you recollect--
Correct. And Mr. Douglas agreed that the Prosecution could substitute original photographs for those.
All right. That will be the order. Madam reporter, we will take a break in about five minutes. All right. 1132, board. Mrs. Robertson, 1132.
This is a board that Greg Matheson was shown and the discussion starts on page 25679 of the transcript. What it was intended to show is that two nanograms--excuse me--20 nanograms of DNA would be the size of a pin and that two nanograms would be invisible. Mr. Matheson never agreed with that proposition, although he was shown this diagram, and what he did say, that makes it a little bit more confusing, is that 20 nanograms of DNA contained in blood cells, in other words, that the DNA had not been extracted out, is visible, and I think he may have even said that two nanograms of DNA in blood cells is visible. And what this is trying to--to indicate is the visibility of 20 nanograms and two nanograms of DNA outside of red blood with the idea that it would be easily contaminated because you can't see it, but this is a proposition to which he did not agree.
And there is--there are particular discussion on 25680, lines 2 through 16 that I highlighted as to what 20 nanograms looks like, et cetera.
Well, Dr. Cotton was also asked about this chart and testified at 27112, it was used in a hypothetical, about the amounts of DNA as indicated on the chart hypothetically, if that had been injected or contaminated into the Bundy drops that had been degraded, that that would give a positive RFLP result. So I think it has been authenticated through Dr. Cotton.
And perhaps the court could read the--get the gist of the People's objection if the court read 25680, the citation I previously gave.
Your Honor, this board and the next one were used also with Greg Matheson and virtually they simply put the board up there and asked Mr. Matheson almost no questions about it whatsoever. They did ask Mr. Matheson that--whether PCR amplification involved 32 cycles, which he agreed to. But as to the--the number that you end up with, the four million 290,000, he never agreed to that number. All he said, it would be a large number, so there is no authentication for this exhibit.
Excuse me. Yes, right. Miss Deirdra was blocking off three of those zeros over there. But at any rate, the discussion for that, your Honor, commences on page 25685, and the most relevant portions is on 25687 where he is asked: "And typically that is done 32 times, correct? That is the protocol of forensics? "Yes. "Question: And that chart depicts statistics starting out with a very small amount and doubling it 30 times"--30 times, I guess that is a mistake--"Leads to a very large amount, correct? "Answer: Double it 32, yes. It is an extremely large number, but there is no statement as to the specific number."
I'm not sure if this is a new objection. This was objected to at the time on page 25688 and that objection was overruled by the court. But more importantly, Gary Sims testified about this chart specifically, and I will refer the court to pages 28416 and 28425 where he talked about this chart and the next--well, this chart and authenticated that the concept that we were portraying there is accurate. And I'm not sure if they are suggesting that there is some sort of mathematical problem and we didn't bring that up, and I don't think there is.
All right. The objection is overruled. All right. No. 1140, three-page analyzed evidence report. This will be the last matter we take up before we take a break.
If you feel you need to say something specifically with regard--because it is the same mathematical process. That--
I thought that 1134, as I recalled, shows a number of different--different overlying triangular--
--patterns and I don't know whether that was used with Gary Sims or not. Your Honor, but at any rate, on this particular one, this one was put up simultaneously to Greg Matheson's testimony, but they didn't ask him any questions about it. He wasn't asked what does this show or do you agree with it or--I mean, there was nothing in the way of authentication.
He authenticated this at 25688 without objection from the Prosecution in terms of the concept that is being displayed here about when you amplify DNA different types are going to get amplified as well, and fairly simple. Talked about this extensively.
You see the kind of loose language. He authenticated the concept here. The discussion of this starts on page 42049 and it was shown--I'm sorry, it starts on 25688, and it was put up there but there were no questions about it.
No. He was asked questions about is it accurate that if you've got several different components of a mixture and the amplification is done, they all get amplified and you wind up with a lot of each one of them and this is just four times. That is on the last chart.
I mean, I just think there should be some authentication for the correctness of these numbers, and to my knowledge no one has said these numbers are correct. I mean, maybe they are, I don't know. I have no idea, but I don't think there is anything in the record.
1140, I think the problem there was the second page was--the court redacted parts of that and--
Well, this same document was marked by the Prosecution and may have been redacted in a different way, but for some reason counsel has cut out the results on 117, 118-A and 118-B.
That was because the court would not allow them to go into 117 after that--I can't remember the exact reason, but it was because they had not raised it in their direct, I believe, and then were trying to make an argument after they were done.
As I recall what happened was Mr. Sims then testified based upon Mr. Matheson's report what the conventional serology results were on the rear gate stains for the purposes of showing that there was degradation.
All right. Then what we will do is withdraw--since the complete report is--do you know--can you give me the cross-reference number on that?
All right. Then what I would propose then is that we withdraw the Defense exhibit, since it is a redacted copy, and substitute in its place the complete copy. Any objection to that.
The only problem with that is I think the Prosecution's exhibit is missing that page. That is my recollection as to why I introduced this.
All right. Since we both agree that we need the complete report, we will get the complete report and we will substitute it in both locations. How about that?
The fact that Mr. Fuhrman's partner chose not to recall or did not recall a very important aspect which we think leads to an argument that there was a rush to judgment, the fact that another detective placed that in his report, are all pieces of evidence that are central to the puzzle that we are attempting to create or to make to demonstrate the code of silence, the rush to judgment, the possibility that others would say things under oath, even less than truthful, to protect one of their own.
That this video was actually taken by someone across the street. All of the photographers, according to that testimony, were across the street. They were not allowed to be anywhere near the crime scene. As a result they had to use a zoom lens. In the use of the zoom you have a compression of space, making it appear that everybody is on top of each other, crawling all over each other.
If you think quibbling about lines in a manual is going to persuade this jury one way or another--1083.
I'm fairly astonished that they can come in here and object to this on lack of authentication. It is just an absurdity. And then on 1319, that is the same exhibit... Kestler acknowledges this.
I'm going to leave in the complete second paragraph. Second paragraph states as follows: 'Upon arrival at the crime scene detectives were met by Detective III Ron Phillips... Additionally, Phillips stated that Mr. Simpson and victim 1 had been embroiled in previous domestic violence situations, one of which resulting in the arrest of Mr. Simpson.'