Cross-examination of Brian Kato Kaelin

📄 Cross-examination of Brian Kato Kaelin — Wednesday, July 6, 1994

Address:

C:\DEPT103\PRELIMINARY\1994\JUL\6\CROSS-EXAMINATION-OF-BRIAN-KAT.DOC

TRIAL

▲ Day 4 of 6

◀ Direct examination of Brian Kato Kaelin Prosecution direct examination of Brian Kato Kaelin on matters beyond the defense examination ▶

Witness: Brian "Kato" Kaelin
Examiner: Marcia Clark
Called by: Defense • Date: Wednesday, July 6, 1994 • Lines: 185

Clark focused on Kaelin's tired and confused condition when police woke him, his reports of the unexplained thumps, and the layout of his guest unit. She also confirmed that Kaelin saw Simpson leave in a limousine but did not see him board a Chicago flight, then began probing whether Kaelin's favorable living arrangement created bias before a scope objection ended the cross-examination.

# 1 THE COURT:

Ms. Clark.

# 2 MS. CLARK:

Thank you, Your Honor.

# 3

CROSS-EXAMINATION

# 4

BY MS. CLARK:

# 5 Q:

Good afternoon, Mr. Kaelin.

# 6 A:

Hi. Good afternoon.

# 7 Q:

Now, you got woken up by the officers at about -- what did you say, between 5:00 and 6:00 a.m.?

# 8 A:

Yes.

# 9 Q:

What time did you go to bed that night?

# 10 A:

I went to bed about 1:30 a.m.

# 11 Q:

So when they woke you up, you had maybe three to four hours sleep?

# 12 A:

Yeah. About three or four hours sleep.

# 13 Q:

Were you pretty tired when they woke you up?

# 14 A:

Yes.

# 15 Q:

Would you say you were a little bit disoriented when they woke you up?

# 16 A:

Yes.

# 17 Q:

And a little bit confused about what these officers were doing here at your door at 5:30 to 6:00 a.m. in the morning?

# 18 A:

Yes.

# 19 Q:

Doesn't happen everyday, does it, sir?

# 20 A:

No, it doesn't happen everyday.

# 21 Q:

Thank goodness. And when they woke you up and they said "police" and started asking your name and whether you lived there, were you a little bit taken off guard?

# 22 A:

Yes.

# 23 Q:

But they were asking you who else lived in your guest unit. Is that what you understood when they were asking you who else lives here?

# 24 A:

Um, I -- I think I said it was O.J.'s house and I lived in the guest house, and I mentioned Arnelle's name who was living there also.

# 25 Q:

Now, you had a conversation -- let me ask you this. You pointed out Arnelle's unit at some point, did you not?

# 26 A:

Yes, I did.

# 27 Q:

And some of the officers went over to that unit, didn't they?

# 28 A:

Yes.

# 29 Q:

And one of the officers stayed with you; is that right?

# 30 A:

Yes.

# 31 Q:

And while that officer stayed with you, he asked you about whether anything unusual had happened the night before, didn't he?

# 32 A:

Yes.

# 33 Q:

And when he asked you whether something had happened the night before that was unusual, you told him about the thumps, didn't you?

# 34 A:

Yes, I did.

# 35 Q:

And then you went on to recount for that officer everything that had happened that night, including seeing the limo driver out there waiting for the defendant and seeing the defendant go to the airport; is that right?

# 36 A:

Say the question again slower. At what point?

# 37 Q:

I'm sorry. I do talk fast. You were telling him all the events that happened that night; is that right?

# 38 A:

Right. There was -- two separate times so --

# 39 Q:

I know that. So first you're talking about what happened that night with this one officer standing by your guest room; is that right?

# 40 A:

Right. I think that was also -- his name is Mark.

# 41 Q:

Mark, okay. And you were telling him what had happened --

# 42 A:

Yes.

# 43 Q:

-- The night before, June 12th?

# 44 A:

Yes.

# 45 Q:

And when you told him what happened, did you tell him about the thumps?

# 46 A:

Yes, I did.

# 47 Q:

Did you tell him about being scared and thinking it might be an earthquake or a prowler?

# 48 A:

Yes, I did.

# 49 Q:

Did you then tell him that after hearing those thumps, at some point you went outside to go and check on what had caused those noises?

# 50 A:

At a -- now, I don't know if it was mark that time or not. It was a detective I told that to. I don't --

# 51 Q:

Might you have told -- excuse me, let me finish. Might you have told that to Mark as well?

# 52 A:

I might have.

# 53 Q:

Okay. And when you were telling that to Mark, when you were describing what had happened to Mark at that time, were you still kind of scared about what had caused those noises?

# 54 A:

That night I was scared, the night, in the sleep.

# 55 Q:

You mean --

# 56 A:

I was thinking about that noise pretty much all night.

KEY QUOTE

# 57 Q:

So when you went to bed that night, you were still scared about the noises.

# 58 A:

Yeah. I mean, it was still -- I still wanted to know what that was.

# 59 Q:

And when those officers woke you up, did that make you concerned that maybe the noises you had heard were related to them being there?

# 60 A:

You mean if they were doing the noise?

# 61 Q:

No.

# 62 A:

What?

# 63 Q:

That maybe they were there investigating what caused the noises also, maybe they knew something about that?

# 64 A:

Oh, I didn't think that.

# 65 Q:

You didn't put that together.

# 66 A:

No.

# 67 Q:

But anyway, Mark -- that detective stayed back with you at the guest room and you told him about the noises; is that right?

# 68 A:

I can't remember positive, but I did tell the story twice and so someone wrote down -- I don't know which detective it was that wrote something down.

# 69 Q:

you told the story twice and you know that one detective stayed with you while the others went with Arnelle.

# 70 A:

When I first came out of my room?

# 71 Q:

Yes.

# 72 A:

Yes.

# 73 Q:

Okay. And so you might have told that detective about hearing the noises on your guest wall; is that right?

# 74 A:

Yes.

# 75 Q:

Now, that bathroom window that you were talking about, how big is it?

# 76 A:

It's -- see this desk? From about here to the end here, and about the same complete style, but not wooden, but it's the window. The same style, rectangle.

# 77 Q:

It's a rectangle?

# 78 A:

So it's about a foot and three and a half feet. It goes that way.

# 79 Q:

High. So about three and a half feet high and a foot wide?

# 80 A:

Yes.

# 81 Q:

And what side of the air conditioning unit is that on?

# 82 A:

If the air conditioner is facing that way, where the air would blow out, it would be on the right of it.

# 83 Q:

No. Let's look at it if you walk into your guest house. Actually, let's do it on the diagram. In your unit, tell us where the bathroom would be on this diagram, the defense diagram.

# 84 MS. CLARK:

For the record, can the court see where he is pointing to?

# 85 THE COURT:

Yes.

# 86 MS. CLARK:

He is pointing to the area where it says "sink" and "toilet" off Kato's room.

# 87 Q:

Where would the window be?

# 88 A:

Right where you enter.

# 89 MS. CLARK:

He has indicated a point just after entry to the bathroom.

# 90 Q:

Where would the air conditioning unit be?

# 91 A:

Right here.

# 92 Q:

And you indicated you heard the thumps come from where?

# 93 A:

This area here.

# 94 Q:

The air conditioning unit -- that would be to the west side or east side of the air conditioning unit that you told the officer you heard the thumps?

# 95 A:

The thumps I heard to this side, to the --

# 96 Q:

To the west side?

# 97 A:

To the west side.

# 98 Q:

OKAY. So that bathroom window was to the east of the air conditioner, wasn't it?

# 99 A:

Yes.

# 100 Q:

And it was a narrow window?

# 101 A:

Yes.

# 102 Q:

Now, when you went inside and spoke to the other detective, you were seated in the bar area, weren't you?

# 103 A:

Yes, I was.

# 104 Q:

And you told that detective about hearing the thumps on the wall, didn't you?

# 105 A:

Yes, I did.

# 106 Q:

And you were pretty excited about everything that was going on, including hearing the thumps the night before, weren't you?

# 107 A:

I was excited about the thumps I heard?

# 108 Q:

And seeing --

# 109 A:

Everything, yes.

# 110 Q:

And do you recall telling that detective, at that time when you were seated in the bar, about the defendant being picked up by a limo that night; that he must -- that you thought he must have overslept because he was waiting a long time? Do you remember telling him that?

# 111 A:

I think I told him the story of the whole night.

# 112 Q:

To the detective seated at the bar?

# 113 A:

At the bar.

# 114 Q:

And to the best of your knowledge, as you were telling that detective, you thought that the defendant was in chicago?

# 115 A:

That he was in chicago, yes.

# 116 Q:

Was it the detective at the bar that asked to see the keys to the bronco?

# 117 A:

I don't remember that.

# 118 Q:

You don't remember which one?

# 119 A:

It wasn't at the bar when they asked that.

# 120 Q:

Where were you?

# 121 A:

I was in the kitchen then.

# 122 Q:

Were you moving around the house pretty much once you went inside?

# 123 A:

I mean, I know -- I think I put pants on at one point; but I don't know when or I don't know -- I remember going to the kitchen, and I remember the kids came. It was a lot of confusion for me.

# 124 Q:

You felt pretty confused and pretty disoriented that morning after having been woken up between 5 and 6 in the morning; is that right?

# 125 A:

Yes. And I was going to tell you about the kitchen.

# 126 Q:

You went into the kitchen at some point?

# 127 A:

Yes.

# 128 Q:

Was Arnelle there?

# 129 A:

Yes.

# 130 Q:

And you spoke to Arnelle at some point?

# 131 A:

At some point Arnelle came in the bar area, went back; and I believe that's when she heard the news. I can't be positive, but it was -- just added to everything again.

# 132 Q:

It was a pretty confusing scene?

# 133 A:

Yes.

# 134 Q:

And pretty upsetting?

# 135 A:

Yes.

# 136 MS. CLARK:

May I have a moment, your Honor?

# 137 THE COURT:

Yes.

# 138

BY MS. CLARK:

# 139 Q:

Was it a police officer that told you about what had happened to nicole brown?

# 140 A:

No.

# 141 Q:

Who was it that told you that?

# 142 A:

I had heard it from the area of the kitchen. And Arnelle kind of screamed, was upset; and I heard that.

# 143 Q:

And you could not tell who was saying that?

# 144 A:

No.

# 145 Q:

Was it Arnelle?

# 146 A:

I don't know if it was repeated to her -- I can't be positive of who said it to her, no.

# 147 Q:

But you heard it being said?

# 148 A:

Yes.

# 149 Q:

Was it by a male voice or a female voice?

# 150 A:

It was from her voice after she had heard it.

# 151 Q:

So you heard her reaction; you didn't hear what was being told to her?

# 152 A:

Yes.

# 153 Q:

And from that you deduced that -- what had happened to nicole brown?

# 154 A:

Yes.

# 155 Q:

Now, you indicated that you saw the defendant leave in a limo; is that right?

# 156 A:

O.J. left in a limo. Yes, I --

KEY QUOTE

# 157 Q:

All right.

# 158 MR. SHAPIRO:

Your Honor, I am going to interpose an objection at this point.

# 159 THE COURT:

Let me ask you one thing. Are you going to be --

# 160 MR. SHAPIRO:

You know what, let me just confer with cocounsel for a minute.

# 161 MR. UELMEN:

Your Honor, inasmuch as the purpose of these proceedings is to determine whether Mr. Simpson should be a defendant, we would object to the recurring characterization by the prosecution of Mr. Simpson as the defendant.

# 162 THE COURT:

Well, whether or not he should be a defendant is questionable. Right now he is the defendant in this case. I don't see a problem with his being referred to in that fashion.

# 163 MS. CLARK:

Thank you, your Honor.

# 164 Q:

You knew he left in a limo that night; is that right?

# 165 A:

Yes.

# 166 Q:

You did not, of your personal knowledge, see him get on a plane for chicago?

# 167 A:

No.

# 168 Q:

Now, Mr. Kaelin, you had been living there for about six months as of the night these events occurred; is that correct?

# 169 A:

Yes.

# 170 Q:

And were you able to have friends come over and visit you in that unit?

# 171 A:

Yes.

# 172 Q:

And you were able to, in fact, have people spend the night with you in that unit, weren't you?

# 173 A:

My choice, yes.

# 174 Q:

And you were able to use the pool facilities when you wanted to, weren't you?

# 175 A:

Yes.

# 176 Q:

And you were also able to use the tennis court when you wanted to?

# 177 A:

Yes.

# 178 Q:

And you were allowed to come and go as you please?

# 179 A:

Yes.

# 180 Q:

Do you perform chores and odd jobs for the defendant in return for being allowed to stay there?

# 181 A:

No. He never asked me to do anything. If he said something, I would do it; but --

# 182 MR. SHAPIRO:

We would object as beyond the scope of direct, unless counsel is making Mr. Kaelin her witness again, in which case the questions should not be leading.

# 183 THE COURT:

Miss Clark?

# 184 MS. CLARK:

That's true, your Honor. I will take him on direct.

# 185 THE COURT:

All right.

Temperature

procedural

Key Quotes (4)

Brian "Kato" Kaelin

I was thinking about that noise pretty much all night.

Kaelin said the unexplained thumps remained on his mind and frightened him after he went to bed.

Brian "Kato" Kaelin

It was a lot of confusion for me.

Kaelin acknowledged that the early-morning police activity and arrival of family members affected his ability to recall the sequence precisely.

Brian "Kato" Kaelin

O.J. left in a limo. Yes, I --

Kaelin confirmed seeing Simpson depart in the limousine, while later admitting he did not personally see Simpson board a plane for Chicago.

Kathleen Kennedy-Powell

Right now he is the defendant in this case. I don't see a problem with his being referred to in that fashion.

The judge rejected the defense's objection to Clark repeatedly calling Simpson “the defendant.”

Evidence (2)

Informal

A defense diagram of Simpson's property and Kaelin's guest unit was used to locate the bathroom, window, air-conditioning unit, and the west-side area where Kaelin heard the thumps.

displayed and discussed

Informal

The keys to the Bronco, which a detective reportedly asked to see in the kitchen.

discussed

Notable Exchanges (4)

Marcia Clark•Brian "Kato" Kaelin

Clark established that Kaelin was tired and disoriented when police woke him, then pressed him on which detective first heard his account of the thumps. Kaelin remained uncertain but maintained that he told the story twice.

strategic

Marcia Clark•Brian "Kato" Kaelin

Using the defense diagram, Clark had Kaelin place his bathroom window, air conditioner, and the location of the thumps, establishing that the sounds came from the west side of the air conditioner while the narrow window was east of it.

revealing

Gerald Uelmen•Kathleen Kennedy-Powell•Marcia Clark

Uelmen objected to Clark's repeated use of “the defendant,” arguing that the preliminary hearing was meant to determine whether Simpson should be a defendant. The judge replied that Simpson was presently the defendant and allowed the characterization.

procedural

Robert Shapiro•Marcia Clark•Kathleen Kennedy-Powell

Shapiro objected that questions about Kaelin's living arrangement and possible chores were beyond the scope of direct examination. Clark conceded the point and said she would take Kaelin on direct examination instead.

strategic

Light Moments (2)

Marcia Clark

When Kaelin asked Clark to repeat a compound question more slowly, Clark responded, “I'm sorry. I do talk fast.”

Brian "Kato" Kaelin

Kaelin briefly misunderstood whether Clark was asking if the officers themselves had made the mysterious noises, replying, “You mean if they were doing the noise?”

Credibility Attacks (3)

⚔ Brian "Kato" Kaelin

impaired-memory impeachment

Clark emphasized that Kaelin had slept only three or four hours and agreed he was tired, confused, and disoriented when police questioned him, casting doubt on the precision of his early recollections.

⚔ Brian "Kato" Kaelin

uncertain recollection

Clark repeatedly pressed Kaelin about which detective he told about the thumps; he could not remember clearly and said only that he told the story twice.

⚔ Brian "Kato" Kaelin

bias through living arrangement

Clark began exploring Kaelin's rent-free access to Simpson's guest house, pool, and tennis court and whether he performed favors in return, suggesting possible bias, but the defense objected and Clark ended the cross-examination.

Objections

2 objections (0 sustained, 1 overruled)

Proceeding 9121 • 185 lines • Defense witness

Preliminary Trial

Department 103