In chambers: hearsay and scheduling

📄 In chambers: hearsay and scheduling — Thursday, July 7, 1994

Address:

C:\DEPT103\PRELIMINARY\1994\JUL\7\IN-CHAMBERS-HEARSAY-AND-SCHEDU.DOC

TRIAL

▲ Day 5 of 6

◀ Cross-examination of Philip Vannatter Morning session opening ▶

Date: Thursday, July 7, 1994 • Utterances: 25

A brief chambers session during the preliminary hearing addressed a hearsay objection raised by the prosecution over the defense attempting to introduce OJ Simpson's own statements through a police officer witness. The judge indicated her general inclination to allow it under Proposition 115, which makes hearsay admissible at preliminary hearings via experienced police officer testimony, and deferred a final ruling until after the noon recess. The session concluded with a scheduling discussion covering remaining witnesses: Vannatter, a nurse who drew Simpson's blood, Dennis Fung, Greg Matheson, and the coroner.

# 1 MR. SHAPIRO:

Thank you. (the following proceedings were Held in chambers:)

# 2 THE COURT:

All right. We are again on the record in the case of people v. Simpson in chambers, without the Mr. Uelmen and Mr. Shapiro are here for the defense. Miss Clark.

# 3 MR. HODGMAN:

I will address this one, your Honor.

# 4 THE COURT:

Sorry.

# 5 MR. SHAPIRO:

It's about time you did something. The L.A. TIMES was getting a bit nervous about your involvement.

KEY QUOTE

# 6 MR. HODGMAN:

Well, they will just have to speculate, I guess.

# 7 THE COURT:

And they will do that.

# 8 MR. HODGMAN:

Your Honor, the nature of the objection is that what counsel is calling for is hearsay evidence; and pursuant to evidence code section 1220 -- that is their client's statement, and they cannot be legally the proponent of that statement. We legally, under 1220, can introduce that statement. At present we don't intend to introduce that statement at the preliminary hearing.

# 9 THE COURT:

What about Prop. 115? Has that affected the ability of the defense to present what traditionally -- and I agree with you -- is classic hearsay, the exception being an admission offered against a party And, traditionally, it is only offered by the prosecution and not by the defense? But what about Prop. 115 at a preliminary hearing? Has that changed that? I mean, presumably hearsay evidence is admissible.

# 10 MR. HODGMAN:

I would submit not, your Honor; We have a statement of a party opponent, and only the opposing party can be the proponent of that statement. We are not seeking to introduce that statement. And we will do some research, if you wish, to satisfy you on this issue. My understanding of the law, it is not admissible; it is hearsay.

# 11 THE COURT:

Mr. Shapiro.

# 12 MR. UELMEN:

it is conceded it is hearsay, but Prop. 115 makes hearsay admissible at a preliminary hearing if it is offered through the testimony of a police officer with five years experience. We have an officer with five years experience on the stand. Hearsay is admissible.

# 13 THE COURT:

You know, that is my general understanding; and that has been my ruling in other cases that nobody cares about, but -- in other cases that has kind of been my ruling, and I have not seen anybody cite a case to the contrary. If you wish some time, we are taking our noon break. you know. I will certainly take the issue up again at 1:30 in chambers and listen to what everybody has to say. (proceedings were had which were transcribed in volume 11-a and ordered sealed by the court.)

# 14 MR. UELMEN:

Can we get some idea of what the schedule looks like?

# 15 THE COURT:

Yeah. Can we get some idea of the schedule?

# 16 MS. CLARK:

Certainly. After detective Vannatter concludes his testimony, I will present the nurse who took the blood from the defendant, unless you want to stipulate; and then I will present Dennis Fung, and then I will bring greg Matheson and then the coroner.

# 17 MR. HODGMAN:

At present we have Dr. Irwin golden, who is the deputy medical examiner, who performed the autopsies, scheduled to testify tomorrow.

# 18 MR. SHAPIRO:

We should finish tomorrow, then.

# 19 THE COURT:

Okay. That would be delightful.

# 20 MS. CLARK:

It would.

# 21 MR. SHAPIRO:

I mean, if we really push today, I think we should finish tomorrow unless you are going to go into serology to any great -- are you just going into blood typing?

# 22 MS. CLARK:

Enzyme, typing and ABO; but there is no d.n.a.

# 23 MR. SHAPIRO:

And that should go fairly quickly.

# 24 MS. CLARK:

Yes, I would think; Neat but not gaudy.

KEY QUOTE

# 25 THE COURT:

Have a good lunch. We will meet in here at 1:30, then. (at 12:02 p.m., a recess was Taken until 1:30 p.m.) THE MUNICIPAL COURT OF LOS ANGELES JUDICIAL DISTRICT COUNTY OF LOS ANGELES, STATE OF CALIFORNIA STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES )

Temperature

procedural

Key Quotes (5)

Robert Shapiro

It's about time you did something. The L.A. TIMES was getting a bit nervous about your involvement.

Rare moment of courtroom banter directed at Hodgman, who had been less visible in the proceedings up to this point.

William Hodgman

We have a statement of a party opponent, and only the opposing party can be the proponent of that statement. We are not seeking to introduce that statement.

Core of the prosecution's hearsay objection — under Evidence Code 1220, only the prosecution can introduce Simpson's own statements against him.

Gerald Uelmen

Prop. 115 makes hearsay admissible at a preliminary hearing if it is offered through the testimony of a police officer with five years experience. We have an officer with five years experience on the stand. Hearsay is admissible.

Defense's counter-argument invoking Proposition 115 to bypass the traditional hearsay bar at preliminary hearings.

Kathleen Kennedy-Powell

That has been my ruling in other cases that nobody cares about, but -- in other cases that has kind of been my ruling, and I have not seen anybody cite a case to the contrary.

Judge signals she leans toward the defense's Prop. 115 argument, with a self-deprecating aside about the relative obscurity of her prior rulings.

Marcia Clark

Neat but not gaudy.

Clark's pithy characterization of the limited serology evidence (enzyme typing and ABO, no DNA) planned for the preliminary hearing.

Evidence (3)

Informal

OJ Simpson's out-of-court statement, sought to be introduced by the defense through police officer testimony

disputed — ruling deferred to 1:30 PM

Informal

Blood drawn from defendant by nurse (upcoming witness)

referenced in scheduling discussion

Informal

Serology evidence — enzyme typing and ABO blood typing (no DNA)

referenced as upcoming, scope discussed

Notable Exchanges (2)

William Hodgman•Gerald Uelmen•Kathleen Kennedy-Powell

Hodgman argued the defense cannot be the proponent of Simpson's own admission under Evidence Code 1220; Uelmen countered that Prop. 115 opens hearsay generally at preliminary hearings via experienced officers; judge indicated she agreed with Uelmen's reading but deferred final ruling.

strategic

Marcia Clark•Robert Shapiro•Kathleen Kennedy-Powell

Counsel walked through the remaining witness order — Vannatter, nurse, Fung, Matheson, coroner — and agreed the preliminary hearing could conclude the following day if they pushed pace.

collegial

Light Moments (4)

Robert Shapiro

Shapiro quipped that the LA Times was nervous about Hodgman's involvement given his low profile; Hodgman replied they would 'just have to speculate'; judge agreed they would.

Kathleen Kennedy-Powell

Judge self-deprecatingly noted her prior Prop. 115 rulings were in 'cases that nobody cares about,' catching herself mid-sentence.

Marcia Clark

Clark described the limited serology scope as 'neat but not gaudy.'

Kathleen Kennedy-Powell

Judge responded to the prospect of finishing the next day with 'That would be delightful.'

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 8981 • 25 utterances

Preliminary Trial

Department 103