Live Trial Coverage - CA v. Simpson - Day 154 - Part 1
FRED GRAHAM: But they are in the courtroom. Judge Lance Ito is taking his seat, and so we will go live into the courtroom and listen.
Judge LANCE ITO, Los Angeles Superior Court: All right, back on the record, in the Simpson matter, the records should reflect the defendant's present with his counsel, Mr. Douglas, Mr. Uelmen, Mr. Blasier. The People are represented by Mr. Kelberg, Mr. Hodgman and Mr. Clarke. The jury is not present. Counsel, I understand that the defense has examined its posture I posture regarding recalling Gary Sims, and a determination has been made not to recall Mr. Sims. Is that correct, Mr. Douglas?
CARL DOUGLAS, Simpson Attorney: That's correct, Your Honor.
Judge LANCE ITO: All right. So, for all intents and purposes, at this point then, both sides will call no further witnesses. Both sides will formally rest before the jury the next time they are present, correct? I see nods from both sides.
JOHNNIE COCHRAN, Simpson Attorney: Yes, Your Honor.
Judge LANCE ITO: All right. My inclination, then, is to proceed with the two remaining matters, which are jury instructions and exhibits, admissions and otherwise, and schedule the jury instruction for tomorrow at 10 o'clock, and we will precede that by having both sides formally rest before the jury. Does that sound appropriate? Both sides seem to indicate yes. Mr. Kelberg Mr. Douglas Rather than bring the Rather than bring the jury back today just for the purpose of resting
CARL DOUGLAS: No, we'd rather do it tomorrow than today, Your Honor yes.
Judge LANCE ITO: All right. Is that agreeable to the people?
BRIAN KELBERG, Dep. Dist. Atty.: It certainly is, Your Honor.
Judge LANCE ITO: All right. Then, Deputy Trower [sp], would you notify the other bailiffs that the jury will not be summoned today; however, we will need them for tomorrow morning at 10 o'clock?
DEPUTY TROWER: Yes, Your Honor.
Judge LANCE ITO: All right. Thank you. All right, the record should then reflect that we've had, starting at eight o' clock this morning, an informal conference in chambers with Counsel regarding jury instructions to see which instructions we could agree upon, which instructions we could not agree upon, and determine which instructions we needed to discuss. All right, the Court will be working from the proposed jury instructions that were submitted by the People on June 23rd at the conclusion of their case and chief, and we'll go through the objections to this first package by the defense. All right, starting with the objection to 2.03 Mr. Uelmen
GERALD UELMEN, Simpson Atty.: Yes, Your Honor. Our objection to 2.03, which addresses evidence admitted as consciousness of guilt or falsehood, is simply there There is no evidence that would justify the giving of this instruction. The only examples offered by the People to justify this instruction were, first of all, a statement allegedly made to Dr. Baden, with respect to the explanation of the cut on the defendant's finger. My recollection is that at the time that was offered, it was offered simply to explain and explore the opinion of Dr. Baden. It was not offered as a statement showing consciousness of guilt. If it were offered for that purpose, the defendant would have insisted that all of his statements explaining the cuts on his finger be admitted, including the statement he made to the detectives at the time of his arrest. Since it was offered only for the limited purpose of explaining the opinion of Dr. Baden, the jury did not hear the full explanation offered by the defendant in all of the settings in which an explanation was offered, and we believe we would be entitled to offer that if that were the purpose for which this statement was coming in. The only other suggestion of any evidence that would justify this instruction is the evidence of the statements made by the defendant to the limousine driver as to the explanation for why he was running late. And, once again, to construe this as a false exculpatory statement in a setting in which the defendant was not being called upon to explain himself in the sense of being confronted with any sort of accusation of a crime, we believe that that statement likewise would not justify this instruction, so we object simply on the grounds that there is no evidence to justify this instruction.
Judge LANCE ITO: Mr. Kelberg
BRIAN KELBERG: Thank you, Your Honor. As the Court is well aware of the Kimball case, 44 Cal. 3rd, has stated quite clearly that a statement of a defendant offered against him by the opposing party, which would serve to connect the defendant to the commission of the defense, qualifies as an admission in California, and although there may be differences of view by theoreticians of the rules of evidence, as to whether that is sound on the theory of, is it being offered for the truth of the matter asserted, the bottom line is that, with respect to the cuts, the prosecution's contention is those were false statements made by Mr. Simpson to give an explanation for cuts and possibly abrasions that were sustained as a result of his efforts in killing and murdering these two human beings, and that his falsification of statements to justify these cuts and these abrasions serves to connect him, through consciousness of guilt, to the commission of these two murders. Likewise, the fact that the defendant apparently told Mr. Park that he was asleep, even though the evidence clearly shows that shortly after 10 p.m., using his cell phone he made a call to Paula Barbieri is evidence of a falsification to justify where he was at the time the murders were committed and to demonstrate, again, consciousness of guilt by trying to form an alibi, if you will, for that period of time. Under the law, these qualify as admissions. When Dr. Baden was asked, this was not 801B information which was limited to the basis of an expert opinion. It was evidence which was offered as Mr. Simpson's statement. It qualified as an admission. As the prosecution, we are the opposing party, the defendant being the adverse party. We are offering his statement through Dr. Baden against Mr. Simpson. It qualifies as an admission. 2.03 is properly given.
Judge LANCE ITO: All right. Any response? May I submit it? All right. The objection will be overruled. All right. 2.06 This is a modified instruction specifically dealing with the glove demonstration. Mr. Uelmen
GERALD UELMEN: Your Honor, 2.06 refers to the defendant attempting to suppress evidence or concealing evidence or destroying evidence. The whole and as I understand it, the the prosecution's theory of offering this instruction is to suggest that the demonstration of the fit of the glove was somehow an attempt by the defendant to suppress or mislead or conceal evidence in this case. The defendant did not offer this evidence. This evidence was offered by the People, and the theory on which they were entitled to do that is that this was not testimonial. The whole idea of a defendant being required to stand before a jury and try on clothing is that it is not testimonial. It is simply observational, so the jury can draw a conclusion whether it fits or not based on their observation. If it were testimonial, or if it were being offered for a testimonial purpose, we would have a serious Constitutional violation of requiring the defendant to incriminate himself in front of the jury, and the offering of this instruction is a suggestion by the People that they want to offer this demonstration now for a testimonial purpose and to infer from it that the defendant's conduct in participating in that demonstration can be used to incriminate him of the crime of which he is accused, so we would object to this instruction. We would assert the defendant's Fifth Amendment Constitutional privilege as the basis of our objection and suggest to the court that giving this instruction and allowing that argument is to create great Constitutional peril in terms of using a non testimonial demonstration for a testimonial purpose.
Judge LANCE ITO: People
BRIAN KELBERG: Yes, Your Honor. Just for the record, and the Court was made aware, I only got involved in this because the Court freed me up yesterday by ruling that the two witnesses, Martz and Whitehurst, were not going to be heard, so I kinda come into the jury instructions a bit late. The People, on reflection, believe that the instruction that has been offered in the packet that was sent in some time ago, should not be the one given. We propose that the standard CALJIG instruction of 2.06 more appropriately accommodates the evidence in the case. For example, Mr. Hodgman points out to me there is evidence that has been received that the defendant, when arriving at Los Angeles Airport from his resident in the late evening, I gather, of June 12th, was seen to deposit a bag in a trash receptacle at the airport. That certainly would qualify, given the totality of the evidence, as efforts to suppress evidence, because it is reasonable for the jury to infer that the defendant was getting rid of incriminating evidence. The glove episode The jury saw it. It is evidence in this case. The jury can determine whether Mr. Simpson in fact intentionally made an effort to make it appear that gloves which would fit did not in fact fit, and, therefore, Your Honor, there is clear evidence that qualifies as efforts to suppress evidence by the defendant from which a consciousness of guilt may be drawn, but because there are multiple areas that reflect this effort to suppress evidence, I don't believe the instruction that has been proposed initially, which focuses on the glove, is appropriate. I think it should be a generic instruction the standard CALJIC with the appropriate striking out of the inapplicable alternative phrases as found in that instruction.
Judge LANCE ITO: All right. Do you Dean Uelmen, do you have any comment on the just giving the generic 2.06?
GERALD UELMEN: Yes, we oppose 2.06, and People vs. Hannon [sp] holds that this should not be given if there is not evidence which it believed would support the suggested inference, and there simply is no evidence in here of any suppression or attempt to conceal or destroy evidence by the defendant. The argument that the testimony of a witness that Mr. Simpson set a piece of luggage down on top of a trash container is certainly not evidence of an effort to suppress or destroy or conceal evidence. There was no testimony as to what ultimately happened in terms of whether that was then picked up and carried on. There was no evidence that anything was destroyed or concealed at that time. It is the rankest speculation to argue that that supports any sort of inference of the concealment or destruction of evidence, and with respect to the glove demonstration, again, we would urge that there is serious constitutional peril
Judge LANCE ITO: Well, let's not get into that, 'cause that's been withdrawn. OK. All right, the objection to 2.06 will be sustained. All right. 2.21.2 This is witness willfully false, and Mr. Uelmen, you've offered your own special instruction defendant's special instructions 19 and 20.
GERALD UELMEN: Nineteen Yes, it was offered in substitution for 2.212, because we believe the probability of proof standard used in 2.212 would confuse the jury in terms of the prosecution's burden of proving its case beyond a reasonable doubt, so we rely on People versus Rivers to qualify this instruction and would urge the Court to give the defendant's 19 rather than 221.2.
Judge LANCE ITO: Mr. Kelberg
BRIAN KELBERG: Thank you, Your Honor. Of course, this instruction 2.21.2 has been approved throughout recent case law, most recently People vs. Bearsly [sp] at 53 Cal. 3rd 68, pages 94 to 95. The Rivers case deal dealt with a situation of it's basically it's a one-on-one case, without any corroboration, and, so, there were concerns raised in the Rivers case, but whatever the facts of Rivers, Rivers is a court of appeal case. It cannot overrule, under our rules of [inaudible] a decision from the California Supreme Court approving 2.21.2. More fundamentally, and looking at D-19, the Court will notice that this has been truncated by leaving off several things. On the first sentence, the last words that would appear in 2.21, is to be distrusted, the words ``in others'' have been left off, and then of course, the last part, which is really the big issue, the part dealing with ``you may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence, you believe the probability of truth favor his or her testimony in other particulates. In other words, it is misleading to this jury to give the proposed D-19, because it suggests that if a jury finds a witness that willfully lied, basically you throw away everything else that witness has said. That is not what the law is, and as a result of the Beardsley, as a result of the long recognition of this instruction, and as a result of the inaccuracy and misleading character of D-19, we submit the pattern standard CALJIG instruction should be given.
Judge LANCE ITO: All right, any comment on D-20?
BRIAN KELBERG: Yes, unfortunately, Your Honor, my card index, I don't think My card index has not come?
Yes, I think this is. Thank you.
The issue of materiality as to the credibility of a witness is a question of fact for the jury. The proposition that is posited in D-20, that it is the responsibility of the Court to make a finding as a matter of law that something is material, number one, is drawn from the perjury charge, and the question of whether the materiality element of a perjury charge is a question of law or a question of fact. In the CALJIG use note for the most recent modification of 7.20, the Hedgecock [sp] case is cited at 51 Cal. 3rd 395, and it stands for the proposition that where the issue of materiality is in dispute, it is a factual issue for the jury. I believe Dean Uelmen believes that that is not what Hedgecock stands for and relies Hedgecock citing earlier United States Supreme Court cases, but there is a recent case this term from the United States Supreme Court called U.S. versus Gaudin G-A-U-D-I-N which can be found at 115 Supreme Court 23-10, which found that due process and the Sixth Amendment right to a jury trial required a trial judge to submit to the jury the question of materiality of defendant's allegedly false statements in matters within the jurisdiction of a particular federal agency. And this was the case we were, for the record, in chambers I mentioned that I was aware of a case. Unfortunately, I didn't bring my materials, but someone has sent down a copy of the case. I have it, if the Court wishes to review it for its consideration of this issue.
The Setting aside the difference between an element of an offense and this question of materiality and due process requiring a jury to make a finding In fact, I would be shocked, quite frankly, if Mr. Simpson were charged with perjury and the Court was going to make a decision, as a matter of law, that the statement in issue was material and the Court was going to tell the jury that it was material if they found the statement was made I would be shocked if Dean Uelmen didn't stand up and tell this Court it was unconstitutional under due process in the Sixth Amendment for this Court to do so. It would be a question of fact for the jury.
It is a question of fact for the jury if any statement about which a witness may have lied, is material, because, then, the jury must decide if it is material, they are to distrust the witness in other particulars unless, again, for the probability of truth they find that the witness' testimony in other areas should be accepted. So, it is a question for the jury, and that's where it should be left. D-20 should not be given.
Judge LANCE ITO: Any response, Dean Uelmen?
GERALD UELMEN, Simpson Attorney: Your Honor, if I could return very briefly to D-19. We believe the modifications opposed to that are appropriate. First of all, 221.2 is ambiguous when it suggests that a witness who is willfully false in one material part of his or her testimony, is to be distrusted in others, because the suggestion is that the others may be other material parts, and we believe that if a witness is false in one material part of his testimony, in any other part of the testimony he can be distrusted. And that is what is conveyed by saying, simply, the witness is to be distrusted, period, without adding the ambiguous phrase, ``in others.'' We believe the modification suggested by People vs. Rivers is appropriate here because we are dealing with the testimony of a sole percipient witness. The only witness to the discovery of the glove is Detective Fuhrman, and we believe to instruct the the jury, with respect to this testimony, in terms of this qualifying phrase of using a probability of truth standard, creates the very problem that Rivers was addressing, that of creating ambiguity as to the prosecution's burden of proving its case beyond a reasonable doubt. So we believe those modifications are appropriate.
Now, with respect to the instruction that we've requested in our special instruction number 20, materiality is a legal question. The whole of the Hedgecock case was simply that in the prosecution for a witness, making a knowingly false material statement in a government application, the question, as the court held, of whether the defendant knew the statement was material is a jury question. But the California Supreme Court did not in any way undermine the support for the proposition that even in a perjury prosecution, the question of whether the statement was material is a legal question and it is not inappropriate, and I don't believe the U.S. Supreme Court case in the context of federal prosecutions undermines this proposition at all. It is a legal question and the court must instruct the jury as a matter of law of what is material and what is not. And of course, it's a very different question where the defendant on trial is asserting his right to a jury trial. That question doesn't come up at all in the context of the testimony of a witness.
So in the context of giving the jury an instruction that they can disregard the testimony of a witness who has given willfully false testimony with respect to a material part of this testimony, the jury should not be left simply to determine on its own whether the testimony related to a material part of the testimony. The Court has already determined that question as a matter of law and should so instruct the jury, that it has found, with respect to that testimony, it was material
Judge LANCE ITO: All right, thank you counsel.
BRIAN KELBERG: Your Honor, I have one other thing for the record. D-20 singles out an individual witness, out of all of the witness that this Court has heard and that, in and of itself, is an inappropriate basis for a jury instruction.
Judge LANCE ITO: All right. Thank you counsel. All right, I think 2.21.2 is the appropriate instruction to give in this situation. The objections to D-19 and D-20 will be sustained.
All right, 2.50, 2.50.1 and 2.50.2 evidence of other crimes and also we are cross-referencing this to D-22.
GERALD UELMEN: I believe we have also requested a special instruction, D-24, which cautions the jury as to the dangers of evidence of other crimes and we believe that it is appropriate. This language is taken directly from the California Supreme Court decision in the People vs. Mason. It's a direct quotation of the Court's cautionary language with respect to evidence of other crimes and we believe it is appropriate that the jury be cautioned as to the risks and dangers of this crime, as well as to the purposes for which it may be considered.
We have also submitted as special instruction 22, a cautionary instruction that this evidence should not be considered unless the commission of the other crimes is proven beyond a reasonable doubt and we believe that the cases cited support the giving of that evidentiary standard as part of this instruction, and suggesting that any lesser standard would justify the use of this evidence would undercut the defendant's right the case against him being proven beyond a reasonable doubt.
Judge LANCE ITO: Mr. Kelberg.
BRIAN KELBERG: Thank you, Your Honor. First of all, Your Honor, as the Court will see, I did submit or file this morning some supplemental instructions and proposed special instructions.
BRIAN KELBERG: Thank you, Your Honor. First of all, Your Honor, as the Court will see, I did submit a file this morning, some supplemental instructions, and proposed special instructions. One of the supplementals is 2.50 modified. The first sentences of that ``Evidence has been introduced for the purpose of showing that the defendant committed crimes other than that for which he is on trial. Such evidence, if believed, was not received'' pardon me ``may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you, only for the limited purpose of determining if it tends to show.'' And, then, at the end of the instruction, it concludes with, ``You are not permitted to consider such evidence for any other purpose.'' That takes care of the issues that are covered in 22, 23 and 24. In addition, 22, which is the burden of proof issue, cites cases which are, of course, capital cases dealing with the admissibility of evidence at the penalty phase under 190.3b, evidence of other crimes, which, for reasons that are only applicable to the punishment issue in a capital case, must be found by a jury beyond a reasonable doubt before the jury may consider such evidence as aggravating evidence justifying imposition of a penalty of death. This evidence that is being received is being received under 1101-B of the Evidence Code. It comes in under the foundational requirement of Evidence Code, Section 405, the preliminary fact needed to be established is by a preponderance of the evidence. That is the law. That is what 2.50.1 says, and what is defined in 250.2. I submit, Your Honor, that 22, 23 and 24 are inapplicable and should be rejected.
Judge LANCE ITO: All right, thank you, Counsel.
All right, the Court will give 2.50 as modified, 250.1, 2.50.2 and will decline to give 22 D-22, 23 and 24.
All right 2.52, flight after commission of crime that has been withdrawn by the prosecution?
BRIAN KELBERG: That is correct, Your Honor.
Judge LANCE ITO: All right. I take it there is no objection to the withdrawal?
GERALD UELMEN: No objection.
Judge LANCE ITO: All right 2.71, 2.71.5, 2.72 and 2.71.7 Mr. [inaudible], on my in the printer
BRIAN KELBERG: Your Honor, I'm sorry, could I just interject one thing? In the series of instructions we have in the big packet just to make a note of on 2.13, which is the issue of the admissibility of prior inconsistent statements for the truth of the matter asserted, that that needs to be modified to take into account the Peratis video, which came in under 1202, such evidence not being admissible for the truth of the matter asserted.
Judge LANCE ITO: All right. Remind me to do that when we conclude this cycle.
All right, Dean Uelmen.
GERALD UELMEN: Our objection to all of these instructions Now, I believe 2.71.5 and 2.71.7 have been withdrawn?
BRIAN KELBERG: Two- 2.71.5 is withdrawn and I'd still I need to talk
Judge LANCE ITO: I'm sorry, 2.71?
BRIAN KELBERG: Point 5.
Judge LANCE ITO: Point 5.
BRIAN KELBERG: The act of admission
Judge LANCE ITO: All right.
BRIAN KELBERG: instruction is withdrawn, and I need a moment to talk further with Mr. Hodgman on 2.71.7. We're trying to review the record on that.
FRED GRAHAM: While they're consulting there, I want to ask our guest commentator, Paul Zellerback, he is a prosecutor. It doesn't seem too surprising that, for the most part, the prosecution seems to be prevailing here, because the defense, for the most part, was asking for more departures from subtle instructions.
PAUL ZELLERBACK, Deputy District Attorney: That's absolutely true and that's not uncommon at all. But Judge Ito is ruling in the prosecution's favor predominantly as relates to the most of the proposed instructions by the defense.
FRED GRAHAM: All right, we'll listen.
GERALD UELMEN: Your Honor, I believe that Your Honor's previous ruling, that you will give 2.03, with respect to
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 2
GERALD UELMAN: With respect to 2.71 and 2.72, Your Honor, I believe that Your Honor's previous ruling, that you will give 2.03 with respect to false exculpatory statements should be dispositive. There are no statements that, by any stretch of the imagination, can be called an admission in this record. Section 2.03 certainly gives the prosecution the option of arguing that that statements were were false exculpatory statements and the jury can infer some consciousness of guilt from those statements, but that does not make those statements admissions, and there is no evidence in this record of any admission, and to instruct the jury that there is, in the absence of any sufficient evidence, to justify a finding of any sort of admission by the defendant, would be error and we we would cite People vs. Hannen [sp] for that proposition. There must be legally sufficient evidence in the record to support the finding of an of an admission before this instruction can be given. And giving the instruction would, itself, suggest to the jury that they are free to consider such evidence as an admission.
Judge LANCE ITO: Or, that there has been an admission in the first place.
GERALD UELMEN: That's right.
Judge LANCE ITO: Mr. Kelberg?
BRIAN KELBERG: As to whether there's been an admission? Your Honor, for the same reasons, under Kimball [sp], statements of the defendant to Dr. Baden and the statements to Mr. Park regarding being asleep, constitute admissions, because the People used those statements to connect the defendant to the commission of the offense through other evidence.
Judge LANCE ITO: But, don't you have what what you appropriately need to argue under 2.03?
BRIAN KELBERG: We certainly have what is an appropriate instruction, Your Honor, but 2.03 does not create the understanding of the nexus that is, what is an admission? What is it about a statement of a defendant that can be used by the prosecution to argue that the defendant is guilty of the offense? It is the fact that, in the eyes of the law, a statement of the defendant which, with other evidence, tends to commit connect him to the commission of the offense, qualifies as the kind of statement that can be admitted for the jury's consideration. That's what 2.71 is 2.71 is all about, so there is nothing They are not instructions that are in lieu of each other. They are parallel instructions to deal with sometimes different situations, but sometimes very similar situations.
Judge LANCE ITO: Well, let's go back to what we classically understand to be an admission, an oral admission, by a defendant. Can you point to anything in the record, here, that even comes close to that?
BRIAN KELBERG: Well, Your Honor, as the Court is well aware
Judge LANCE ITO: I understand your your position, but I assume Mr. Hodgman or Mr. Clarke or Mr. Yokelson or anybody else would whisper in your ear if there was something that was
BRIAN KELBERG: Oh, oh, no, that That's not the thing I'm concerned about. I think it's an interesting issue from a theoretical standpoint because hearsay is classically defined as
Judge LANCE ITO: Which is why we have the two most theoretical thinkers here discussing this.
BRIAN KELBERG: Are you referring to Mr. Yokelson, because
Judge LANCE ITO: No.
BRIAN KELBERG: I hope the Court is not referring to me. I don't think I'm that theoretical. But, it's a situation, Your Honor, where 2.03 certainly is there for us to argue the significance of it. Legally, 2.71 is an accurate statement of law.
Judge LANCE ITO: It's an accurate statement of law, but is there anything you can point to that it applies to?
BRIAN KELBERG: Yes, legally, under Kimball, what I indicated. What the Court is really suggesting is that it is not the classic kind of situation that is clearly a statement which is, on its face, inculpatory, which is the classic being offered for the truth of the matter asserted. So, for example, if the defendant lived out-of-state and is charged with a crime that was committed in Los Angeles County and the defendant made a statement to the police that, ``I was in Los Angeles County during the evening hours of June 12th, 1994,'' that would be an admission, because it would tend to connect him in some tangential way to the commission of the offense. If he went on to say, ``And when I was in Los Angeles on June 12th, 1994, I was down in Long Beach at some event when the crime in question took place in Brentwood,'' that would qualify as an admission. That's why it's not a confession, because it it is not an acknowledgement of each element of the offense, but it qualifies as an admission because we can take the part that applies to him being in Los Angeles County at the relevant time, and connect him to the events even though he also wants to claim, through an exculpatory portion, that it is not him who is the perpetrator.
Mr. Hodgman does point out he didn't need to whisper, he wrote a note to remind me to raise the issue of the Shipp dream comment, and I think the Court indicated to us, in chambers, you believe an instruction is going to be appropriate as to how the jury should evaluate that testimony, and that would, itself, seem, if the jury finds it to be of the nature which the Court feels would be something they can consider, that would qualify as an admission, as well, under 2.71. So, from a theoretical standpoint, Your Honor, I think Kimball's not a well-decided case. And 2.03 takes care of it. But under stare decisis, Kimball controls, 2.71 applies, it is not redundant to 2.03. With the dream issue, it is clearly not redundant to 2.30, and on that basis, Your Honor, I ask the Court to give 2.71 and 2.72.
Judge LANCE ITO: All right, Counsel, I'm going to take this one under submission. Let me Mr. Kelberg, would you approach just for a moment and let me give you a draft and share one with Dean Uelmen, regarding a special instruction regarding Mr. Shipp. Contemplate that, and we'll come back to it.
All right, let's move on to 3.31 and 3.31.5, mentaly states. I take it you want me to give 2.90.
BRIAN KELBERG: Your Honor, I find 2.90 to be one of the most favorable instructions to the prosecution.
Judge LANCE ITO: All right. This is a '94 revision. All right, 3.31.5, mental state, and you are going to the People are going to submit a modified instruction?
BRIAN KELBERG: Correct, Your Honor, in accordance with our conversation in chambers. You should have it early this afternoon available.
Judge LANCE ITO: All right, and that is over the objection of the defense, because I'm going to direct the prosecution to submit the 3.31.5 including the mental states or specific intents that are necessary for Murder in the First Degree and Murder in the Second Degree. So, the defense objection is noted. Is that correct?
GERALD UELMEN: Yes, Your Honor, we will object.
Judge LANCE ITO: All right. 4.71 is withdrawn by the People and our next objection goes to 8.70.
BRIAN KELBERG: Your Honor, can I briefly add one other thing to the Court's consideration on the admission issue Mr. Hodgman points out to me? Just a piece of evidence, not a legal argument?
Judge LANCE ITO: All right.
BRIAN KELBERG: All of the 1001 evidence which has been received, which includes statements of the defendant which I believe were made in tape recordings and one was interviews with the police officers or police officer who testified, should qualify as admissions since the 11.01-B evidence is admissible for the purposes of provind the defendant's guilt of the charged offenses.
Judge LANCE ITO: All right, thank you.
GERALD UELMEN: Your Honor, I'd like to comment on that because I think that highlights the risk of prejudice of giving 2.71 and 2.72. Statements of admission of prior similar crimes that are offered for the limited purposes of showing the intent or motive or common scheme or plan are not admissions of the crime for which the defendant is on trial. 2.71 and 2.72 specifically address the admission of the offense that the defendant is being tried for and 2.72 cautions the jury with respect to a finding of guilt based upon that evidence.
To suggest to this jury that there are any admissions on this record is very dangerous and highly prejudicial to the defense. The only evidence the prosecution is pointing to are statements that they are going to argue are false and because they are false, you can infer a consciousness of guilt. If they are true, they are exculpatory statements. They are not admissions. And they're trying to set up a double bind and say to the jury, ``Regardless of whether you find these statements true or false, you can use them against the defendant, use them as an admission if they're true, use them as a false exculpatory statement if they're false.''
You can't have it both ways. They are not admissions. They are exculpatory statements.
Judge LANCE ITO: All right, we'll contemplate this one.
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Live Trial Coverage - CA v. Simpson - Day 154 - Part 3
GERALD UELMEN, Simpson Defense Attorney: [in progress] evidence with respect to Mr. Heidstra that could be construed to support the presence of two perpetrators as well, because Mr. Heidstra testified to hearing two voices. We don't know with percisions whether he was describing events preceding the murder or events immediately following the murder, that he heard two voices arguing and then he heard the clanging of the gates. We believe that would support the presence of two persons.
We also have unidentified fingerprints found at the scene that have not been associated either with the defendant or any other identifiable person.
Judge LANCE ITO, Los Angeles Superior Court: Mr. Kelberg.
BRIAN KELBERG, Prosecutor: Your Honor, I think the intent of this instruction is pretty clearly understood. It is a situation where you have identified individuals. But for the jury, there is perhaps only one defendant. So, in a case with three obvious individuals involved the liquor store robbery, three people go in, gunpoint, money taken but this jury's asked to decide the guilt of a single individual. The jury is not to speculate why we only have one person here for a crime which is clearly established to be one involving multiple people.
This jury instruction would seem, in my judgment, to convey to the jury in much stronger terms than what even the best evidence the defense has just indicated would support the possibility of a second person being involved and it is not an appropriate instruction. It is a situation that is well-covered by 2.90, because our responsibility is to prove that Mr. Simpson is a murderer of these two human beings beyond a reasonable doubt.
If the defense wants to argue that because the evidence shows there is a second killer, that that raises a reasonable doubt as to whether Mr. Simpson is involved at all, because if there are two, Mr. Simpson's not one of two, Mr. Simpson's not involved, two killers suggesting something other than Mr. Simpson, 2.11.5 is unnecessary. It's purpose is not needed in this situation. The defense is really raising an issue as to reasonable doubt of identity of Mr. Simpson based upon a contention that there were multiple killers.
May I have just a moment, Your Honor? Yes, if you look at 2.11.5's '89 revision, the second paragraph, ``There may be many reasons why such person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he or she has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial, or the defendants on trial.'' I think it's clear from that paragraph, Your Honor, and by the way, that is not a bracketed paragraph.
That is not one that is apply only if applicable. I think that clearly indicates the purpose behind this instruction and this case does not fit within that criteria.
Judge LANCE ITO: How do you address the evidence, however, that Dean Uelmen has raised that Doctor Lee's testimony that there may have been second, other footprints there, the fact that we do have unidentified fingerprints that cannot be made to anybody that we know of and the testimony by both pathologists that two knives cannot be ruled out?
BRIAN KELBERG: It seems to be that the defense wouldn't want an instruction like this. It seems to me the defense was to have the jury constantly thinking about two killers. But two killers in the sense of, by reason of there being two killers, it tells you Mr. Simpson is not one of the two killers. He is not a killer by nature of the fact that these people were killed by multiple people. That's really what they're trying to focus on. Not ``Hey, you can't consider what these other people are facing in this case because you're solely to decide Mr. Simpson.'' They want the jury to focus on that there are these other people because that raises, in their judgment, a reasonable doubt as to his guilt. This instruction really undercuts what it is they want to argue from there being evidence of a second killer.
Judge LANCE ITO: All right. Are you familiar the Farmer [sp] case and the usage?
BRIAN KELBERG: 47 Cal 3d?
Judge LANCE ITO: Yes.
BRIAN KELBERG: I know it in some aspects, but as to this particular instruction, I am not. I know it has spontaneous utterance issues and other things.
GERALD UELMEN: Your Honor, we have no objection to giving the revision in the Cal J supplement to 11.5. In fact, we find that is actually a better instruction for our purposes. And our purposes are clearly identified by Mr. Kelberg. That is, we certainly are going to suggest to the jury that there were two killers. But that's all the more reason for the jury not to speculate about the reasons why this other person is not here on trial.
The point of this instruction is that you should not, for example, conclude that perhaps there wasn't another such person because that person isn't here on trial. That ordinarily, both of the people who committed a murder would both be on trial, and the fact that this other person isn't on trial leads to some sort of inference that this other person doesn't exist. That's precisely the prejudice and the inference that we want to avoid and that we're entitled to avoid by the giving of this instruction. To say to the jury, ``Don't even worry or think about why that other person isn't here on trial,'' but that doesn't say ``Don't consider or think about the possibility that there was another person involved in the commission of this crime.
Judge LANCE ITO: All right. Thank you, Counsel. Let me read the Farmer case because it's cited in the use note.
BRIAN KELBERG: Your Honor, may I have an opportunity to read it as well and offer if I have any comments on it?
Judge LANCE ITO: Yes. All right 2,60, 2.60.1
BRIAN KELBERG: No objection.
Judge LANCE ITO: No objection 3.31 I think we've agreed that how that's going to be modified. All right 4.50 alibi.
GERALD UELMEN: Yes. Your Honor invited us to consider how 4.50, the CalJig instruction on alibi might be modified. And I would invite the Court's attention to special instructions D-31 and D-32 which I think address much more specifically the defendant's theory of the kicks. And clear up the issue that we previously identified with respect to the ambiguity of 4.50 in the context of this case. These special instructions make it clear that the defendant does not have any obligation to offer evidence that he was not present at the time and place of the commission of the crime and that if the evidence raises a reasonable doubt whether he was present, then he's entitled to an acquittal and the burden remains on the prosecution to prove that that he was present.
And special instruction D-32 instructs the jury how to consider the evidence that may raise a reasonable doubt whether the defendant was present, making it clear that he doesn't have to show he was somewhere else at a specific time that the crime was committed. We believe that the defendant is definitely entitled to an instruction with respect to the alibi defense which is the really, the theory of the defendant's defense and the and the defendant is entitled to an instruction that conveys to the jury how it should consider the evidence presented by the defense in this respect.
We believe that all of the evidence does raise a reasonable doubt whether the defendant was present at the time and place that the crime was committed and the jury needs to be instructed that the defendant does not bear the burden of proof with respect to this evidence, that all they need is a reasonable doubt and that considering all of the evidence, such a reasonable doubt would require an acquittal.
Judge LANCE ITO: All right.
BRIAN KELBERG: Your Honor, with respect to 4.50 and based upon I think the Court's recommendation or concerns as expressed during our informal conference, if the Court wishes to modify the first phrasing of that instruction and instead of what it presently says in the pattern instructions, say that evidence has either been received or been introduced for the purpose of we will have no objection to that. As it is phrased, we think it is misleading, even if not technically erroneous or in error under the law, it is very misleading to a lay jury.
With respect to D-31 and D-32, I'd invite the Court's attention to People's special instruction number two, which says ``The prosecution has the burden of proving beyond a reasonable doubt each element of the crimes charged in the information and that the defendant was a perpetrator of any such charged crime.'' Between 4.50 and our special instruction number two, the defendant is getting every benefit of what he is entitled to receive. That is, the jury has a clear understanding that there are two issues the prosecution must prove beyond a reasonable doubt and the elements of the offense is just one are just one of the issues that we have to prove. We must prove identity as well.
What counsel's proposed instructions are D-32 is clearly argumentative and focusing on specific facts. These are so-called Sears type instructions, but actually if the Court looks at People v. Garceau Six Cal, 4th 140 starting at page 191, the Court will note, actually from page 192, how in People v. Wright, the Supreme Court rejected a special instruction that similarly pinpointed specific evidence rather than a particular theory of the defendant's case. ``Such an instruction properly is refused as argumentative because it would invite the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions but in arguments of counsel to the jury.'' Defendant this special instruction of the defendant in Garceau could be read to embrace stated principles of law involving reasonable doubt. And if so, it was repetitious of other instructions given, notably 2.90 which this court has recognized as the best available definition of the standard of proof beyond a reasonable doubt.
It goes on in Garceau in dealing with another special instruction offered to find that the trial court properly excluded this special instruction which selected certain evidence and implied the weight to be deprived therefrom, thus creating the same type of argumentative instruction disapproved in Wright. The instruction was also repetitious of the standard cautionary instructions given to the jury. In this case, it was 2.70 and 2.71.7 and therefore properly refused.
The Supreme Court in Freeman, and I have a citation around here somewhere if I can dig through my pile let's see 8 Cal 4th 450, page 504 and the Court's well aware, I think, of the Freeman case and the moral certainty language. But it makes note on 504 that although modifying the standard instruction is perilous, they do, in this limited instance, suggest a modification. They then go on to say ``making these changes and no others would avoid both the both avoid the perils that have caused appellate courts to caution trial courts against modifying the standard instruction and satisfy the concerns the high court has expressed regarding that instruction.'' And, as the Court is well aware, the legislature in urgency legislation just passed I'm trying to get the date. Our memo came down August 31, '95. It became effective July 3rd, 1995. The new 1096 language which is in conformity with what was the modified CalJIG 2.90 following the Victor v. Nebraska, Sandoval v. California decisions from the U.S. Supreme Court.
But what's important to also note is 1096A which says in charging a jury, the Court may read to the jury section 1096 and ``No further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given.'' So, taking into consideration all the case law that I've discussed, the legislative changes and intent behind 1096A and the fact that Counsel's statements are either argumentative or covered by what we agree should be given, 4.50 as modified and the special instruction number two about our burden of proof on identity, 31 and 32 should be refused. Thank you, Your Honor.
Judge LANCE ITO: All right.
GERALD UELMEN: Your Honor, the prosecution is asserting a position that has been specifically rejected again and again by the courts of California, that with respect to the defendant's theory of the case, all you have to do is give a reasonable doubt instruction. The law clearly is, and we cite People v. Williams as support for our special instruction number 32 ``Upon request, the Court is required to give any correct instruction on the defendant's theory of the case which the evidence justifies, no matter how weak or unconvincing that evidence may be.'' Special instruction number D-32 is an instruction that specifically tells the jury what to do with the defendant's theory of the case.
The defendant's theory of the case is that he did not have sufficient time or opportunity to commit this crime and the jury needs to know that the defendant does not bear the burden of proof on that issue. He doesn't have to prove to them that he didn't have sufficient time or opportunity to commit the crime. But if they simply have a reasonable doubt whether he had sufficient time and opportunity to commit this crime, then he is entitled to an acquittal. And quite clearly that's all that intruction number 32 says. We believe we are entitled to this instruction because this is the defendant's theory of the case and the evidence justifies this instruction.
Judge LANCE ITO: All right. Thank you counsel. All right, I agree that the defendant's entitled to the alibi instruction. I will give 4.50 as requested, however modified to address the concerns that we discussed in chambers, given the first section, first phrase of that instruction. The instruction that the Court will give will read as follows, ``Evidence has been received for the purpose of showing that the defendant was not present at the time and place of the commission of the alleged crime for which he is on trial. If, after consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find him not guilty.'' The Court will give that instruction as modified.
All right, I believe that that includes our discussion of the additional Cal Jig instructions.
BRIAN KELBERG: Your Honor, has the Court ruled on 31 and 32?
Judge LANCE ITO: Yes. I'm not going to give 31 and 32. All right, and we need to now address the special instructions that the defendant has offered, D-1 through 32 and counsel, we're going to take a 10-minute break at this point.
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 4
FRED GRAHAM, Anchor: Welcome back. Judge Lance Ito has just issued some important rulings on instructions that will be given to the jury. Dan Abrams is standing by. He's talked to the attorneys for both sides.
What is their response, Dan?
DAN ABRAMS, Reporter: Well, Fred, there was some confusion as to whether or not this was first and second degree murder with regard to both victims. Both sides have confirmed that it is their understanding that it will be a first and second degree murder charge with regard to both Ron Goldman and Nicole Brown Simpson.
Now, Judge Lance Ito really only explained a reason with regard to Nicole Brown Simpson. But I spoke with some of the defense attorneys who said, ``Look, if he's going to give an instruction of first and second degree murder on Ronald Goldman, well, then we want to make sure there's a first and second degree murder instruction on Nicole Brown Simpson as well.'' And the reason is two-fold. First of all, the defense is concerned that there might be an implication out there that Nicole Brown Simpson was the target. If only one of them is getting the first and second degree murder charge, the implication might be that Ronald Goldman stumbled upon the scene, something the defense, in fact, does not want. And so the defense is not going to ask Judge Ito to clarify his opinion.
The defense is also concerned about the possibility that if this the jury were going to convict Ron Goldman
I'm sorry convict O.J. Simpson of second degree murder with regard to Ronald Goldman, well then necessarily they would be convicting Nicole Brown Simpson as well, and they wouldn't want a second degree murder.
We're back live in the court room, Fred, so let's go back in.
Judge LANCE ITO, Los Angeles Superior Court: [in progress] planning purposes. We will be dark on Monday the 25th at the request of the parties on the Goldman family. However, my staff will be here Monday to assist with any organization of exhibits or anything that you need for the preparation of your argument. So, that we will be available to accommodate you on that.
All right. Let's go to defense Special Instruction number D-1 starting at page 5.
BRIAN KELBERG, Prosecutor: I don't know if this is the appropriate time. I had a chance to read the Fuhrman tapes. And I don't know if you want my OK. We'll save it.
Judge LANCE ITO: Save it.
BRIAN KELBERG: OK.
Judge LANCE ITO: All right. Let's start with D-1. And actually we have D-1 through
BRIAN KELBERG: D-5.
Judge LANCE ITO: Or of a similar vein.
BRIAN KELBERG: And also People's Special number one, Your Honor.
Judge LANCE ITO: Mr. Kelberg.
BRIAN KELBERG: Thank you, Your Honor. I mentioned in our informal discussion first of all, the Everett [sp] case Everett vs. Everett 150 Cal.3rd 1053, 1072 and 73 and footnote 18, which discusses this issue of the 403-C jury instruction. And I think it's interesting in that case to note in the footnoted material, in discussing this issue of the judge making a preliminary foundation finding on a relevancy issue and so forth, that the court finds not the court, the assembly committee on the judiciary's comments finds that frequently the jury's duty to disregard conditionally admissible evidence when it is not persuaded of the existence of the preliminary fact on which relevancy is conditioned is so clear that in instruction to this fact is unnecessary.
For example, if the disputed preliminary fact is the authenticity of a deed, it hardly seems necessary to instruct the jury to disregard the deed if it should find that the deed is not genuine. No rational jury could find the deed to be spurious and yet to be still effective the transfer title from the purported grand [unintelligible]. They go on in this commentary from the assembly committee to point out at times however it is not quite so clear that the conditionally admissible evidence should be disregarded unless if preliminary fact is found to exist. In such cases the jury should be appropriately instructed.
For example, the theory upon which agents and co-conspirator statements are admissible is that the party is vicariously responsible for the acts and statements of agents and co-conspirators within the scope of the agency or conspiracy. Yet, it is not always clear that statements by a purported agent or co-conspirator should be disregarded if not made in furtherance of the agency or conspiracy. Hence, the jury should be instructed to disregard such statements unless it is persuaded that the statements were made within in the scope of the agency for a conspiracy.
Then they go on to note that Subdivision C therefore permits the judge in any case to instruct the jury to disregard conditionally admissible evidence, unless it is persuaded of the existence of the preliminary fact. Further, Subdivision C requires the judge to give such an instruction whenever he is requested by a party to do so. There is no doubt, based on 403-C that this Court has an obligation, because the defense is requesting through D-1 through D-5 to have the jury instructed on these foundational aspects of relevancy for this physical evidence.
But I think it's important, number one, just to understand that first comment, about sometimes it's so obvious that unless, of course, the instruction must be given because there's a request, there's no reason to give it. The whole thrust of this defense case is, ``disregard the physical evidence because its sources are so spurious as to show clearly that any result you would take from that evidence, and infer that O.J. Simpson is the killer, is unreliable.'' If it is not clear to this jury, by now, that there is a contention from the defense that this evidence that we contend is a mountain of evidence to prove the defendant's guilt, it is merely irrelevant evidence because it lacks chain of custody, it's contaminated, it's confused, it's planted, who knows what?'' But it is not evidence which was deposited by the killer, or in some fashion created in the course of the killings, from which it is rational for the jury to infer that such evidence proves identical.
That's what this all comes down to. I don't think this is a real tough thing for the jury to figure out, as to, ``If you believe the defense, that there's problems with all this stuff, it's not very good evidence. And if you believe the prosecution, that this stuff is a mountain of evidence, Mr. Simpson's going to be in some trouble.''
The judge has to instruct under 403-C. That's what our proposed instruction does and what it tells the jury, in neutral terms, legal terms, not isolating on specific evidence, not being argumentative, not being inaccurate and misleading as the evidence as the references to the evidence in D-1 through D-5 are is that where there is physical evidence admitted, including the expert opinions concerning the analysis of such evidence, that evidence may have a tendency and reason. Notice the word, ``may''. May have a tendency and reason to prove elements of the crimes charged or the identity of a perpetrator of such crimes, or both.
This instruction then tells the jury, ``You are the sole judges of whether such evidence does, in fact, have a tendency and reason to prove any issue in this case.'' They are the sole judges of whether this evidence is relevant. The instruction then tells them what they need to know, in order to decide if this evidence is relevant, by saying, ``If, after your review and consideration of all of the circumstances surrounding any specific item of physical evidence or expert opinion, you find that such evidence does not have a tendency and reason to prove any element of the crimes charged or the identity of a perpetrator of the crimes charged, you are regarded to disregard such evidence as such a finding, renders this evidence irrelevant.''
If this jury finds that the chain of custody is so botched that one can't say that what was tested was the same item that was recovered, if this jury believes that something flew in the air and, in fact, contaminated some stains such that the result was was the result of what flew in the air and not what was in the stain originally, this jury will know, from a review of all the circumstances, that that evidence will have no tendency and reason to prove that Mr. Simpson's the killer.
I don't think, logically, it takes an instruction to tell the jury what is so reasonable for any juror to understand, and which will, I'm sure, be mentioned more than once or twice, in the defense arguments to this jury. But this instruction gives the defense everything which legally they are entitled to in a fashion which is a legally correct statement of law, which is neutral, neutral to both sides.
May I have just a moment, Your Honor?
Mr. Clarke wants me to be sure, if I didn't mention in enough detail, that the instructions themselves, even if the Court were inclined to think that there is something broader that is required, they are argumentative and inaccurate. There are some many misstatements. For example, Mr. Clarke points out that a stain going from a wet state to a dry state, that's a change, which, under some of these instructions, would suggest that the result is unreliable and not relevant. Or a number of changes, in the sense of bacteria getting into the mix, that's contamination. But that doesn't mean that the end result of whatever DNA testing is performed in unreliable or invalid.
And so, again, these are issues of fact for the jury to decide with proper legal instructions. The instructions proposed by the defense are arguments to the jury that are incomplete and misleading and more fundamentally, they are not a correct statement of law for the purposes of helping this jury neutrally assess the evidence. Submitted, Your Honor.
Judge LANCE ITO, Los Angeles Superior Court: Mr. Uelmen.
GERALD UELMEN, Simpson Attorney: Yes, Your Honor. The People's proposed special instruction number one completely misconstrues the while purpose of Section 403 of the Evidence Code. What this instruction does is say to the jury, ``If you find the evidence is irrelevant, disregard it.'' And it states that test in terms of the legal test of relevance. ``If you find the evidence does not have any tendency in reason to prove any element of the crimes charges.'' That's a determination made by the Court in admitting or rejecting evidence.
You find it's relevant, it's admitted. The jury then considers it and we don't tell the jury, ``Well, you review the judge's rulings on whether this evidence was relevant, and if you disagree with the judge, then don't consider the evidence.'' That's not the purpose of Section 403 of the Evidence Code. Section 403 of the Evidence Code does not invite the jury to re-determine the question of relevance. It invites the jury to make a finding on a preliminary or foundational fact, the relevance of the evidence is dependent upon.
And there's a very hard I know my students have great difficulty understanding the difference between 403 and 405, and understanding what preliminary facts are and apparently, Mr. Kelberg has the same problem. So let me see if I can educate him a little bit.
A preliminary fact is defined in the Evidence Code in Section 400, ``as a fact upon the existence or non-existence of which depends the admissibility of inadmissibility of evidence.'' A preliminary fact, for example, relevant to much of this evidence, is that there was a proper chain of custody maintained, that the evidence was maintained in an unaltered or unchanged condition from the time it was seized until the time it was examined.d
Now, what Section 403 says is that where the relevance of the evidence depends on the existence of a preliminary fact, the Court must find that the preliminary fact, there's sufficient evidence to support the finding of that preliminary fact and then submit to the jury the determination of whether they find the preliminary fact exists and if they find it exists, to then consider the evidence itself.
And Section 403 says that with respect to these kinds of preliminary facts, not all preliminary facts, there are preliminary facts as to which the finding of the Court is conclusive and determinative and we don't then hand to the jury the determination, for example, of whether a privilege exists. But respect to a preliminary fact on which the evidence depends, we do hand that issue to the jurors. And 403 says, ``The Court, on request, shall instruct the jury to determine whether the preliminary fact exists and to disregard the evidence if they find it does not exist. That's not a determination of relevance. It is a determination of a fact upon which relevance depends and the instruction submitted by the People invites the jury to re-determine relevance, without identifying for them the specific preliminary fact that they have to find before the evidence becomes relevant. And what we have done in proposed instructions D-1 through D-5 is to identify what the preliminary fact is that they have to find before that evidence is relevant and may be considered by them.
Judge LANCE ITO: How do you address Mr. Kelberg's concern that these instructions relate to specific items of evidence and are phrased in an argumentative manner?
GERALD UELMEN: Well, they have to relate to specific items of evidence because each of these specific items of evidence is admitted under Section 403 of the Evidence Code. These are specific items of evidence where their relevance depends on the finding of a preliminary fact and there's no other way to present it to the jury, other than to identify what that preliminary fact is that they must find before they can consider, for example, evidence of blood or hairs or fibers, they have to find that a reasonable chain of custody was maintained with respect to that evidence. Otherwise, it's irrelevant.
So, this simply informs them that you've got to make that finding before you consider this evidence for any other purpose, with respect to specific deposits of blood. Those deposits are irrelevant, if they were deposited at some time other than the commission of the crime by some person other than the perpetrator of the crime. And this tells them, ``Unless you find that, disregard it. It's irrelevant.'' So, there's simply no other way to present a 403 question to the jury, other than to identify the specific item of evidence and tell them what preliminary fact they must find before they consider that evidence.
Judge LANCE ITO: Mr. Kelberg.
BRIAN KELBERG: Very briefly, Your Honor.
Judge LANCE ITO: Briefly.
BRIAN KELBERG: I think the fact that Dean Uelmen used 403-C one way and the fact that I may view it differently should not be taken as anything unusual in the practice of law. Whereas my students are given my point of view, Dean Uelmen's students are given his point of view and that's why we perpetuate, why we have five to four decisions from the United States Supreme Court. It's very hard for lawyers to agree on much of anything.
But for example, in instruction D-1, ``if you determine that a reasonable chain of custody of such evidence was not established, however, you must disregard such evidence and not consider it for any purpose.'' Your Honor, the jurors could find that there were things about the chain of custody that were not reasonable, yet, it did not impact at all on the integrity of the evidence. And as a result, whatever result that was obtained as a testing of that evidence is, in fact, evidence which is a rational source for inferring the identity of the defendant as the perpetrator.
That's why these instructions are very misleading, factually and legally, and where the real issue is, the jury must look and find for themselves, from the underlying circumstances that go to the issue of whether the evidence is relevant, whether in fact, from that review of all of those circumstances, they believe the evidence has a tendency in reason to prove one of these issues. If they find, from the review of all the circumstances that go to issues like chain of custody and so forth, that this evidence has lost its integrity of showing what it is claimed to show, the jury is told, ``You cannot consider it because having decided that foundational fact against the prosecution, you have found this evidence to be irrelevant and having made that finding, you may not consider it.''
That's what our proposed instruction says. That is what the law requires. I submit, Your Honor.
Judge LANCE ITO: All right. All right, the Court will decline to give 1 through 5. I will give a modification of People's 1. All right. Special Instruction D-6, match in fibers and hairs. Mr. Kelberg.
BRIAN KELBERG: On D-6, Your Honor, number one, of course, 2.80, the standard jury instruction, tells the jury exactly how they are to assess expert testimony. This instruction focuses on a very narrow area of the physical evidence, and attempts to highlight that evidence and the jury's understanding of what they can do with this evidence. Even though I haven't heard a lot of the testimony in this area, it appears, not only from what I have heard, but from our informal conversations in chambers, that if the jury understands very little else about this case, they understand the limited nature of comparisons of hair and fiber, and the difference between the power of comparisons of hair and fiber to the power of RFLP DNA testing.
This instruction is unnecessary. It focuses on a narrow area. It is covered by 2.80, and I submit the Court should reject it and give the standard instruction. Thank you.
GERALD UELMEN, Simpson Attorney: One word that has recurred with some frequency throughout this well, there are lots of words that have recurred with some frequency, but one that can certainly lead to some confusion on the part of the jury is the word ``match.'' With respect to some testimony, the the witnesses were instructed not to use the word, and despite that instruction, the word crept in again and again. We're going to hear that word in closing argument.
And the jury needs to know that, with respect to some evidence, that word can be used, and it has a specific meaning, and with respect to other evidence, that word cannot be used, and they need to know why. And this instruction simply tells them that we did not use the word match with respect to hairs and fibers, and here is why because an opinion that they have similar characteristics is not a match. It does not mean that they that they came from the same source. And we believe it's appropriate to make that distinction, because we made it in the presentation of the evidence, we're going to make it again in the closing argument, and the jury should be let in on the secret as to why some evidence can be characterized as a match, some cannot, and what the word ``match'' means.
Judge LANCE ITO: Thank you, Counsel. All right, in this situation, the question is whether or not the Court feels it's appropriate to give the jury guidance in this area, whether or not they need guidance here, and whether or not there's any danger that they'll be misled from the manner in which the evidence was presented. The evidence presented, with regards to both hair and fibers, was very clear to the jury, and the limitations with regard to that evidence, as to both hair and fibers, was apparent to the jurors through both direct and cross-examination. I don't think this instruction is necessary, and I decline to give it.
All right, D-7?
BRIAN KELBERG: Your Honor, I believe, based upon our conversations in chamber chambers, if we join D-7 and our proposed special jury instruction number three although I believe, Your Honor, we would like to work a little bit on the language, so I think it's best if the Court might reserve the issue here. We will definitely, based upon the Court's discussion with us, coordinate by having the first sentence of our proposed special jury instruction, followed by some form of the second sentence, of the defendant's proposed D-7, and then followed by some form of the third sentence of the or the next sentence of the defendant's proposed, and concluding with the second sentence of our proposed number three instruction, but we would submit this early this afternoon, Your Honor.
GERALD UELMEN: Your Honor, we believe that the special instruction number D-7 is absolutely essential to a proper evaluation by the jury of the of the DNA evidence. Your Honor has already indicated that that he would give the second and third sentences, which we believe are absolutely essential in terms of the meaning of a random match. But it is also essential that the jury know that the statistics presented with respect to matches make no accommodation of the possibility of contamination or errors in laboratory analysis, and we believe that it is appropriate to so inform the jury that probability statistics assume that there has not been contamination, there has not been error in the laboratory analysis.
I'm informed by Mr. Scheck that the the importance of the laboratory error rates is so essential that the report of the National Academy of Science recommends that in every case the jury be told about the significance of laboratory error rates, and that, Your Honor, had indicated that the jury would be so instructed in the final instructions. But we can't
Judge LANCE ITO: I don't know that I said that. I think I said that I would allow the admission of evidence going to laboratory error rate. That was my recollection, but in any event, go ahead.
GERALD UELMEN: Well, we would strongly urge that the court again look at the recommendations of the National Academy of Science in terms of not only what evidence is admissible but what the jury is told about the significance of that evidence, that it is absolutely essential that they understand that these random match probabilities take issue with no attempt do not in any way take into consideration the possibility of laboratory error rates or the possibility of contamination.
BRIAN KELBERG: [unintelligible] First of all, Mr. Clarke assures me that the modifications, if any, to the second and third sentences will be minimal. We do clearly object to the last sentence of the D-7.
Judge LANCE ITO: Why?
BRIAN KELBERG: Because, number one, the jury has been informed through questioning of Dr. Gerdes, through the error rates at CellMark evidence and so forth about those circumstances and about what influence, if any, those circumstances play on statistics. This is argument. This is a defense argument. Also, contamination does not mean that the statistics are unreliable for use in assessing a match because as the court has heard, as this jury has heard, samples can be contaminated and yield reliable and valid results. So, it is not an accurate statement of fact. It is a defense argument to the jury as to what they should conclude from evidence they've already heard and which they can assess for themselves as to the significance of the laboratory error rates and the possible impact of contamination.
Submitted.
GERALD UELMEN: Now, we're dealing with evidence that the appellate courts again and again have expressed grave reservations and caution about the misuse of this evidence, the potential that juries can be mislead as the significance of DNA evidence. And we believe that the recommendation of the National Academy Science should be given great weight in terms of how this evidence is presented to a jury because of that tremendous risk that the jury will make assumptions about what this evidence says to them and what it doesn't say. And one thing that this evidence clearly does not say is that you can assume that the evidence is not contaminated and you can assume that there were no errors made in the laboratory analysis. And we believe it is essential that the jury be told the significance of the match takes no account, takes no measure with respect to that possibility, that the statistics assume that there has been no contamination, it assumes there has been no laboratory error. And the jury must be informed of that fact.
With respect to Mr. Kelberg's argument that results may be valid even in the presence of contamination, that is a qualifier that can be added
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 5
GERALD UELMAN, Simpson Attorney (LIVE): [in progress] With respect to Mr. Kelberg's argument that results may be valid even in the presence of contamination, that is a qualifier that can be added depending on the kind of contamination that we're dealing with. But the laboratory error rates are absolutely essential. I mean, the National Academy of Sciences' position is that random, matched statistics are meaningless
Judge LANCE ITO, Los Angeles Superior Court (LIVE): But the [unintelligible] report says that jurors should be made aware of laboratory error rates. And that's what's occurred here. I mean, they've been told about the laboratory error rates.
GERALD UELMAN: No, they have to be made aware that these statistics that the random, matched statistics do not take into account the possibility of laboratory error rate. That's what they need to be told that these statistics assume that there has been no error in the laboratory analysis.
Judge LANCE ITO: But wasn't that brought out before the jury during both the direct and cross-examination of Doctor
GERALD UELMAN: Well, so so was the
Judge LANCE ITO: for example of Dr. Weir?
GERALD UELMAN: So was the significance of the random match. But the point is that at the instruction phase, when we're telling the jury as a matter of law what this evidence means, the risk of misuse of this evidence is so great that the the jury must be told, in unequivocal terms, a random match does not mean that that we're assessing the the probable guilt of the defendant and a random match assumes that there has not been an error in the laboratory analysis.
Judge LANCE ITO: All right, thank you, Counsel.
BRIAN KELBERG, Deputy D.A. (LIVE): Your Honor, could I briefly respond?
Judge LANCE ITO: No. I think I've heard enough on this. Thank you.
All right, the Court will instruct as follows, as to this issue ``You have heard testimony about frequency estimated'' excuse me ``frequency estimates calculated for matches between known reference blood samples and some of the blood stain evidence items in this case. The random match probability statistic used by DNA experts is not the equivalent of a statistic that tells you the likelihood whether a defendant committed the crime. The random match probability statistic is the likelihood that a random person in the population would match the characteristics that were found in the crime scene evidence and in the reference sample.'' And, that will be the instruction.
BRIAN KELBERG: Your Honor, the Court is not going to give the concludings I think it wasn't the concluding sentence, but I thought, based on our conversations, the Court thought that the second sentence of our proposed
Judge LANCE ITO: I'm sorry. I left that out. ``These frequency estimates are being presented for the limited purpose of assisting you in determining what significance to attach to those blood-stain testing results.''
BRIAN KELBERG: I will prepare the modified instruction [inaudible].
Judge LANCE ITO: All right, we'll stand in recess, 1:30.
1st DEPUTY: Please clear the courtroom.
FRED GRAHAM, Anchor: And as we have seen, in a series of rulings on proposed instructions that have been suggested by the defense. In almost every case, Judge Lance Ito rejected these suggestions. It's not all that surprising. That happens quite often. But there are some interesting reasons why it may have happened here. We're going to take a break and we'll analyze those after this message.
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 6
BRIAN KELBERG, Deputy District Attorney (LIVE): [in progress] is an instruction, if in fact, the Court should find the Court should find as part of a motion that there has been the loss of material evidence. And, of course, what case is not cited here, which I think has to be the most important thing even if the Court were thinking ``Well, I'll entertain a motion now from the defense under this line of authority'' is Arizona vs. Youngblood [sp] or Youngblood vs. Arizona up in the United States Supreme Court which requires a finding of bad faith on the part of the prosecution or prosecuting agency in order to even invoke the remedies that would be invoked under the Trombeta [sp] line of cases. But the bottom line is it comes initially as a motion to the Court for the Court to make a legal determination and then if, and only if, the Court makes a legal determination that the motion is meritorious does the Court determine what is the appropriate sanction. The Zamore [sp] case is the California Supreme Court case, which incidentally I think the Court is well aware, predates Trombeta, predates Youngblood. It comes out the same year as the Nation case which is the follow up to the Hitch case and it is a case saying that a sanction can be and should be in the form of a jury instruction. But that is presupposing that the Court has made as a matter of law a determination that there has been the destruction of material evidence, and now, of course, under the more restrictive United States Supreme Court decisions in Trombeta and Youngblood, the finding that the Court would have to make to justify some sanction is much more stringent than the requirement under the terms of Hitch, Nation and Zamore. This is not a jury instruction issue. This is a motion issue. This instruction should be rejected.
GERALD UELMEN, Simpson Attorney (LIVE): I think the argument really addresses just the last sentence of the special instruction number D-11, and we would certainly contend that, if an appropriate remedy for a finding of the willful destruction of material evidence is dismissal, then such a finding by the jury would justify an acquittal, but we want to make clear that the giving of an instruction should not hinge on whether the Court deems it appropriate to include the last sentence of this instruction. We believe the first part of the instruction states the law accurately, that the jury, in looking at evidence that they know is not available, that has been lost, and they are aware the jury knows that the contents of Nicole Brown's stomach retrieved during the autopsy. They know that the receipts removed from the Bronco at Rotelle's Garage. They know the scrap of paper on the ground at the murder scene was not retrieved. They know the ice cream cup was not recovered, and they should be told, ``What happens to these items is a question for you to decide, and if you find that they are unavailable due to the negligence of law enforcement, even if it is without intent to falsely convict the defendant, they can regard that unavailability as another fact that they can consider with all of the other evidence in terms of assessing the defendant's guilt or innocence.'' That is an appropriate and accurate statement of the law, and the jury should be informed because it is aware of the absence of this evidence.
BRIAN KELBERG: Does Court need me to respond?
Judge LANCE ITO, Los Angeles Superior Court (LIVE): All right. I disagree. I don't believe it is an appropriate instruction under this scenario. All right. D-12.
BRIAN KELBERG: In short and simple terms, Your Honor, this instruction is argumentative, although it is kind of interesting. It says ``the absence of evidence you would normally expect to find in a prosecution based upon circumstantial evidence.'' Well, what does this jury know? I mean, I wasn't present for the voir dire. I don't know if they're experts in what you would normally expect to find in a circumstantial evidence murder case. I wonder how many of these people realize that the absence of the body itself, the person killed, may be a case that leads to a conviction for murder, the L. Ewing Scott [sp] case being probably the most well known, or the Billionaire Boys Club being another well known case.
So, number one, this jury is in no position to know what normally one would expect to see and compare to what is absent. I think I've had enough fun with this instruction, if that's the right term. It is clearly argumentative. Counsel can argue this issue to the jury and tell them what is absent, that they should expect to have been present, but the bottom line is this is not an appropriate instruction of law.
GERALD UELMEN: The cases we've cited, Your Honor, People v. Hall and People v. Blakesley [sp], clearly support the giving of this instruction. The jury should be informed that in a circumstantial evidence case, it is not inappropriate for them to consider the absence of evidence that might normally be expected. And the jury is aware that this evidence has not been produced. They know that we don't have a weapon here. We don't have bloody clothing. We don't have identifiable fingerprints. Those are all circumstances that they can consider, and a failure to give this instruction would not inform the jury that in a circumstantial evidence case they can consider not only the evidence that has been produced, but the evidence that has not been produced.
Judge LANCE ITO: This instruction is really more appropriate as argument, and I'll decline to give it. All right, D-13.
BRIAN KELBERG: Your Honor, again, Counsel attempts to argue the defense case to the jury in the form of D-13. Evidence of efforts to fabricate or plant evidence in any form is affirmative evidence of the weakness of the prosecution's case. I don't believe that sounds like a neutral statement of the law. It sounds like what I would expect Mr. Cochran to say, and perhaps if the statement doesn't speak well enough for itself, the fact that the citations relied upon are of somewhat ancient vintage should suggest that this has been something less than persuasive authority in the 50 or 60 years since the Graham [sp] decision and 45 years since the Remington-Dicta [sp] opinion submitted, Your Honor.
GERALD UELMEN: Both this instruction and the following one, D-14, Your Honor, address directly the evidence that has been proffered in this case with respect to the blood stain on the sock, the blood stain on the on the rear gate under in the case of both of these items of evidence, we have significant evidence in this record from which the jury could conclude there was an intentional effort to procure or create false or fabricated evidence.
Now, a consequence of the jury coming to that conclusion is not merely that they should disregard that evidence, that if they find that the blood stain on the gate or the blood stain on the sock was created in an effort to fabricate evidence against the defendant, that they merely then just disregard the blood stain on the gate or the blood stain on the sock. What this instruction says to the jury is not only should you disregard that evidence but that is affirmative evidenced of the weakness of the prosecution's case, and it gives rise to an inference that the false effort to implicate the defendant is reason to doubt his guilt. And it's not appropriate that the jury simply be left to their own devices in terms of the significance of that evidence.
Judge LANCE ITO: All right. As to D-13, it's clearly argumentative. I decline to give that. And I likewise decline to give D-14. All right, D-15, 16, and 17.
BRIAN KELBERG: Your Honor, obviously, number one, we start with, the jury will receive 2.20, the standard jury instruction, which has for many, many years completely and clearly given the jury the kinds of factors that they are to consider in determining the factual questions which they must decide and from which they will reach their legal determinations on the question of guilt or innocence. And there is no basis to take something to give superfluous instructions.
As the Court may recall, when I read this morning from the Garsu [sp] case, 6 Cal. 4th, 140, 191 to 194, one of the bases that the Court said it was improper or not error to reject defense instructions was the instructions also the instruction was repetitious of the standard cautionary instructions given to the jury in this case. That was 270 and 217, but it's applicable to 2.20.
D-16, which talks about demeanor, again the term that's used but also ``the whole nexus of sense impressions you get from the witness,'' I would substitute the word the ``vibes,'' except that that's probably, from the standpoint of a legal instruction, not exactly what the law intends in the way of informative information in a jury instruction. This is argument. This is covered by 2.20, which includes demeanor, and which is, I think, self-evident for the jury.
D-17, we have modified 2.20 and the Court has our proposed modification, which includes a paragraph dealing with the effects, if any and I have to pull my copy out here, if the Court will give me a moment the effects, if any, it's the fourth paragraph of the modified 2.20 that we have submitted the effects, if any, from the use or consumption of alcohol. I believe drugs should be stricken because I do not believe from everybody I've talked to, that there is any evidence that any witness at the time of the events witnessed was allegedly under the influence of drugs or had taken drugs. But the full instruction ``the effects, if any, from the use or consumption of alcohol, drugs, or other intoxicants by the witness at the time of the events about which the witness testified.''
Dean Uelmen's proposed instruction in D-17 also is talking about, at the time the witness testified. I am aware of no evidence that has been received by this jury to suggest that any witness at the time the witness was testifying was found to be under the influence of alcohol, drug, or other intoxicant. It would be totally irrelevant to the jury's consideration. So we believe that 2.20, the standard instruction, modified to include the concern expressed by the defense in their D-17 proposed instruction is the proper and fully adequate instruction for the Court to give.
GERALD UELMEN: The purpose of these instructions, Your Honor, is to emphasize for the jury the role that they play as the final arbiter of the demeanor and appearances of witnesses. And it's up to them to determine whether, in their judgment, a witness was impaired at the time the witness testified. For example, in assessing the testimony of the witness Kato Kaelin, there were aspects of his testimony that might lead the jury to wonder, and what we believe is appropriate is that they be informed they're entitled to wonder, that they are the judges of assessing the weight to be given to the witnesses based on their demeanor and appearance. And certainly the relevance of intoxicants, alcohol, drugs, whatever, is a two-edged sword. It is relevant not only in terms of the condition of the witness at the time of the events that they observed but also at the time that they testify, and the jury should be so informed.
Judge LANCE ITO: But is there any factual basis you have for the possibility that somebody was under the influence of drugs or alcohol at the time they testified?
GERALD UELMEN: That is entirely up to the jury based on appearances. And we believe that in the parade of witnesses who have become before them in the last eight months there may be reasons to wonder about some of them, and I think it's appropriate that the jury be told, you're entitled to wonder, you are the final judges of credibility.
Judge LANCE ITO: All right. I think that 2.20 does adequately cover these so I'll decline to give that special instruction.
GERALD UELMEN: Would Your Honor give that as modified in the People's submission to include the effects, if any, from the use or consumption of alcohol, drugs, or other intoxicants at the time of the events about which the witness testified?
Judge LANCE ITO: Is that your
GERALD UELMEN: We believe that's a key point with respect to the testimony of Ron Shipp.
Judge LANCE ITO: All right. I agree.
BRIAN KELBERG: And I agree, Your Honor. The Court is denying D-15 from sustaining an objection to D
Judge LANCE ITO: That is correct.
BRIAN KELBERG: Fifteen, D-16, and D-17?
Judge LANCE ITO: That is correct. All right, D-19.
BRIAN KELBERG: It would probably be 18.
Judge LANCE ITO: I'm sorry, D-18.
BRIAN KELBERG: D-18, Your Honor, the objection is simply that this singles out a particular group of witnesses and highlights a particular group of witnesses in an inappropriate fashion 2.20 says every witness and makes clear that these standards apply to every witness. This type of instruction, if you will, is appropriate in the voir dire phase of a trial when counsel and Court are interested to know whether or not jurors may view more favorably or less favorably the testimony of a witness who happens to be a police officer simply because they are a police officer. It does not it is not appropriately placed in the form of a jury instrution which highlights that segment. Do we do the same for expert witnesses? Do we do the same for people who come from a different kind of occupation that may not be well thought of by some people? I submit to the Court that there is no need for this instruction.
GERALD UELMAN: Well, Your Honor, again and again throughout this trial, the suggestion has been made to this jury that the testimony of a police officer should be given special consideration right up to yesterday when Commander Bush had got on the witness stand and talked about how the Los Angeles Police Department has tried to do its best in this case. What we're dealing with here is a simple instruction that says to the jury a police officer's testimony is assessed and considered the same as any other witness in the case. We've had a lot of other a lot of police officers testify in this case. For example, they tried to elicit from Detective Vannatter the degree of frustration that he was experiencing after 25 years of service as a police officer. The implicit inference that they're trying to create with those questions is to say to the jury police officers are special people. They're out there attempting to serve you and are entitled to some special consideration. That may well be true. But it is not a relevant fact in assessing the credibility of a witness and it is certainly appropriate in this case with a number of police officers and the crucial nature of their testimony to tell this jury and give the instruction which is well supported in the law, that a police officer has his or her credibility assessed the same as any other witness.
Judge LANCE ITO: All right. A jury instruction that singles out one particular classification of witnesses for special attention I don't believe is appropriate, so I'll decline to give that one.
All right. Special Instructions D-19.
BRIAN KELBERG: Your Honor, I believe the court sustained the objection to that. This was deferred going 19 and 20 together material.
Judge LANCE ITO: Yes, I think we've dealt with this already.
All right, D-21.
BRIAN KELBERG: Your Honor, we're going to get into a series, if I am not mistaken, perhaps this is the first, but with the reasonable doubt issue.
As Freeman [sp] makes clear and as 1096 and 1096A make clear, 2.90 is the appropriate reasonable doubt instruction. The Court need not give any additional reasonable doubt instruction, and one acts at one's peril when modifying reasonable doubt instructions. On top of which, this is not an accurate statement of law because the jury will assess under circumstantial evidence instructions, under direct evidence instructions, under general credibility instructions and 2.90, which says it is, that state of the case or the mind of the juror, which after you entire comparison and consideration of all the evidence leaves your mind in such a state that you cannot say you have an abiding conviction in the truth of the charges.
So, this is not an accurate statement of law, and it should not be given as an effort to argue to the jury again, this is a one-sided one-sided instruction. That is not a proper statement of law to allow the defense to argue to the jury what the jury legally should do, when in fact this is not what legally the jury, in fact, should do.
GERALD UELMEN: I'll concede this is a one-sided instruction because the burden of proof in a criminal case is one-sided. It all rests on the prosecution. They have the burden of proving guilt beyond a reasonable doubt. And that burden pervades all of the evidence, including the evidence with respect to credibility of witnesses. And legally the jury should be reminded of that fact.
Judge LANCE ITO: All right. I think this matter is adequately covered by the other instructions, so I'll decline to give this one.
All right, number D-22.
BRIAN KELBERG: Your Honor, I believe we handled the 22, 23 and 24. I have marked sustained to our objections on all three.
Judge LANCE ITO: This has to do with the other crimes evidence, correct?
BRIAN KELBERG: Correct. And the burden of proof.
Judge LANCE ITO: Right. I believe we took care of that in the 250 discussion.
BRIAN KELBERG: Yes, we have submitted a modified 250.
Judge LANCE ITO: All right, D-25.
BRIAN KELBERG: Your Honor, clearly CalJIG 2.51 properly, adequately instructs the jury on the significance of the presence or absence of motive. Again, Counsel, understandably wants to try and put their argument into the guise of the jury instruction to tell the jury that the absence of motive in and of itself can give rise to a reasonable doubt. The jury instruction in the form of CalJIG 2.51 properly tells the jury that the absence of motive may indicate that the defendant is, in fact, not guilty. There's no basis to expand upon it. The case law seems to suggest that where there is a proper pattern instruction to cover this, the Court would be well guided to stay with that instruction. We submit 2.51 which has been submitted as part of our package should be given and D-25 rejected.
Judge LANCE ITO: All right.
GERALD UELMAN: Your Honor, it is clearly the law that absence of motive may in itself give rise to a reasonable doubt. So, we believe that it's appropriate to include in the motive instruction at least a sentence indicating that fact. While 2.51 says ``absence of motive may tend to establish innocence,'' it does not add that it may itself give rise to a reasonable doubt. And we would ask at least that 2.51 be modified to state the ``absence of motive may tend to establish innocence and may itself give rise to a reasonable doubt.''
BRIAN KELBERG: If I could briefly respond, Your Honor.
Judge LANCE ITO: No. Thank you.
This particular instruction, 2.51 is a particularly time-proven instruction
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 8
Judge LANCE ITO, Los Angeles Superior Court (LIVE): [in progress] instruction. If I were to make this a neutral instruction in the manner suggested by the parties, then I would have to include also a sentence saying that presence of motives is significant evidence of guilt which I'm not inclined to do. So, I'm going to decline the special instruction and give the standard 2.51.
All right, D-26?
BRIAN KELBERG, Deputy D.A. (LIVE): D-26, Your Honor, again we're getting into this issue of defining a reasonable doubt. But now we are going into specifically circumstantial evidence. With all due respect to Dead Uelmen, going back to a 1931 case, predating the CalJIG instructions, I think suggests that this is probably not a instruction of law that has been well received in recent times 2.01, 2.02 are time-tested, proper statements. In fact, this statement if the Court looks to the second to the last line, ``but they must exclude to a moral certainty every other theory.'' Those words ``moral certainty'' seem to have created a lot of activity in the United States Supreme Court and in the CalJIG committee and in Sacramento with respect to 1096 and 2.90. I submit, Your Honor, that this is clearly not an appropriate statement of law; 2.01 is and is the instruction that should be given.
GERALD UELMAN, Simpson Attorney (LIVE): Your Honor, the fact that we have venerable citations leading back 60 years that should not detract from their weight, but should add to their weight. The core principals that in a circumstantial case the prosecution must exclude and every reasonable possibility that they must that the evidence must be pretty consistent with any reasonable theory other than guilt is such a core and important principal in this case that we do not believe it can be possibly overemphasized and it [sound turned off by the Court] and claim it as an appropriate addition to the standard CalJIG construction.
Judge LANCE ITO: All right. I don't believe the terminology here is sufficiently modern and I'm going to decline to give it. I think it's adequately covered by 2.01.
All right, D-27?
BRIAN KELBERG: All right, Your Honor, again basically the same arguments that I made to D-26 but even the last sentence is even more inappropriate ``all that has to be resolved in the defendant's favor'' 2.90 says ``one does not look to imaginary or possible doubt. One looks to reasonable doubt.'' So, whatever was the thinking in 1947 in the Denton [sp] case, I think, as the Court has indicated, modern language and modern interpretations of the due process clause and reasonable doubt dictate that this instruction be denied.
We submitted on the same argument as previously, Your Honor. Of course, we're moving up thought from 1931 to 1947.
Judge LANCE ITO: Well, I see we're about to leap to 1986.
BRIAN KELBERG: I think that's '68, the last day, Your Honor. It's going to turn out to be '68.
Judge LANCE ITO: Yes, it is, 257 Cal.at 2d. All right. I'm going to decline D-27.
D-28?
BRIAN KELBERG: D-28, Your Honor, 2.90. The Freeman argument. Everything I've said about the need to stay with 2.90, what 1096A says. And again, 1968 authority given what has happened with Freeman and with Sandoval vs. California [sp], Victor vs. Nebraska [sp]. This is terrible. First of all, I just happened to notice in the third line it's talking about in the indictment. I don't think this case is being prosecuted under an indictment. Again, what was going on in 1968, I don't think is terribly relevant to the appropriate language that should be given the jury; 2.90 is the appropriate language.
GERALD UELMEN: We'll certainly agree with the substitution of information for indictment in the third line, Your Honor. But we believe it is important that the jury be told that the reasonable doubt standard applies to every fact or element necessary for a conviction.
Judge LANCE ITO: All right. I think that that's already made clear by the standard jury instructions dealing with reasonable doubt and the use of circumstantial evidence. So, I'll decline D-28.
D-29?
BRIAN KELBERG: We're regressing, Your Honor. We move back 48 years. We're now in 1920 with the Bickerstaff [sp] opinion. Your Honor, again 2.90 tells the jury what is the standard, what is the test. And I'll submit the matter on the previous arguments.
GERALD UELMEN: I don't believe 2.90 addresses the particular point emphasized in this instruction that the jury cannot convict based on mere suspicion. And even if they have a suspicion, that should not in any way dissuade them from returning a verdict of not guilty if they have a reasonable doubt. And that's a distinction that should be made very clear to the jury in the instructions, that if a suspicion should not in any way dissuade them from a finding of a reasonable doubt.
Judge LANCE ITO: All right. This is adequately covered in 2.90. I'll decline D-29.
D-30?
BRIAN KELBERG: D-30. Again, Your Honor, 2.90, Freeman. You'll notice that the instruction ends with ``to a moral certainty'' again, the archaic language that has been knocked out and I just submitted on the same arguments.
GERALD UELMEN: Submitted, Your Honor.
Judge LANCE ITO: All right, D-30 be declined. D-31?
BRIAN KELBERG: I believe Your Honor, the Court has rejected this one and it's offer is 4.50, which I have given to the Court in the form I understood the Court wanted it modified.
Judge LANCE ITO: That is correct.
BRIAN KELBERG: And, similarly, D-32.
Judge LANCE ITO: That is correct. All right, D-33?
BRIAN KELBERG: Your Honor, somewhat similar to the proposed special instruction dealing with absence of motive, now we are talking in terms of evidence of demeanor. First of all, of course, is this trying to single out a class of evidence for the jury's consideration which, the People submit, is not appropriate in a jury instruction. But what's, to me, interesting is the defendant has offered evidence that his demeanor was inconsistent with the demeanor of one who was planning or had committed the brutal murders in this case. It'll be for the jury to decide what is the expected demeanor of a murderer. I don't believe any expert testimony was offered on that subject, at least as I understand it
Judge LANCE ITO: Somebody tried, though.
BRIAN KELBERG: I hope you're not looking at me and suggesting that I did, did I?
Judge LANCE ITO: No, you didn't, but somebody on that side of the table tried.
BRIAN KELBERG: I can't be held accountable for the sins of all of my colleagues. The other thing is the second sentence goes on ``Such evidence alone may require '' leaving out, of course, even the necessary phrasing, ``if believed,'' since, clearly, this is the one-sided evidence of the defense. It is argumentative. It's a matter for argument by counsel. This instruction should be rejected.
GERALD UELMEN: We don't object to the insertion of ``such evidence alone if believed may require the defendant's [inaudible].'' This, again, goes back to the bedrock principle, Your Honor, that the defendant's theory of the case, which the evidence justifies no matter how weak or unconvincing the Court may find that evidence, we are entitled to an instruction to the jury on our theory of the case. And the defendant's theory of the case does include demeanor evidence as a very important element of reasonable doubt, that if the demeanor of the defendant immediately before and immediately after the alleged commission of this crime was inconsistent with the demeanor of one who had committed a crime such as that in this case, that, alone, can give rise to a reasonable doubt. There is nothing in any of the CalJIG instructions that covers that point, that addresses the significance of demeanor evidence. And since demeanor evidence is such a significant part of the defendant's theory of the case, we believe we're entitled to have the jury given this instruction, which is an accurate statement of how they should assess that evidence.
Judge LANCE ITO: All right, I'll think about this one. All right, D-34?
BRIAN KELBERG: Your Honor, I think the same arguments, to some degree, dealing with 2.90 apply here. Again, you will notice moral certainty language occurring in line two, appearing in the second to the last line of the proposed instruction. 8.20 spells out in time-tested language what is the necessity to find a first degree murder based upon willful, premeditated and deliberate murder and that there is no basis to submit again language which is found to be dangerous from Freeman and so forth and which is, in fact, not necessary given 2.90 and 8.20 submitted, Your Honor.
GERALD UELMAN: We'll withdraw the reference to moral certainty on line four and line six of this instruction. The remainder of the instruction is proved by People vs. Conley [sp] and we believe is significant in the context of the case where the only theory justifying a first-degree verdict here is to find that the defendant did carefully weigh the course of his action and weighed the considerations for and against it. This language was not included in CalJIG 8.20 and in the circumstances of this case, it is an accurate description of the law and an appropriate instruction for the jury.
BRIAN KELBERG: Your Honor, can I just point out [inaudible] 8.70 which is in our proposed packet informs the jury about their duty to determine the degree of murder; 8.71 tells the jury if they are not convinced beyond a reasonable doubt if they have a reasonable doubt as to the degree, they must give the defendant the benefit of the reasonable doubt and find it to be murder in the second degree. So, that is covered by an additional instruction.
Judge LANCE ITO: All right, I'm going to decline the special instruction. It is adequately covered in the pattern instruction from CalJIG. D-35?
BRIAN KELBERG: Your Honor, again, we're back to the same arguments 2.90, Freeman and so forth. There's nothing new to add.
GERALD UELMAN: Well, we'll again withdraw the reference to no uncertainty in line seven. But again this addresses an aspect of reasonable doubt that is not adequately addressed in the CalJIG instruction, especially in the context of the case where the jury might be inclined to speculate about the failure to prove the identity of the person who actually committed the crimes. We do have the situation in this case where the Court's rulings have precluded the defense from offering evidence with respect to other possibilities. That simply leaves the jury free to speculate and wonder and to hold against the defendant the failure to offer evidence of who actually committed this crime. Under these circumstances, we believe it is urgently necessary for the Court to say to the jury what the law actually is. That the defendant does not have to prove himself innocent. He does not have to prove that another person committed the crime and they should not hold it against the defendant in assessing reasonable doubt that evidence was not brought in as to who actually committed these crimes.
BRIAN KELBERG: May I briefly respond, Your Honor?
Judge LANCE ITO: Briefly.
BRIAN KELBERG: Your Honor, we submitted proposed jury instruction number two which I inferentially gather was rejected dealing with the burden on the prosecution to prove not only the elements of the offense, but the identity of the defendant as the perpetrator. The defendant has the benefit of 4.50 which the Court has modified and is going to give. The jury is going to be fully apprised that there's not going to be the slightest doubt imaginary or possible for this group of 12 people that if, in fact, we cannot prove that Mr. Simpson is guilty as the perpetrator, by evidence beyond a reasonable, that he gets a verdict of not guilty. That's clear. This instruction adds nothing to the other thing. I would resubmit that the Court really never ruled on People's proposed number two, that the Court give that. But 2.90 and all the other instructions that I've indicated, fully cover this and this becomes fully redundant and unnecessary.
GERALD UELMAN: Your Honor, this simply ignores the fact that the absence of this evidence can work against the defendant in terms of the jury's assessment of whether they have a reasonable doubt. It's not enough to just tell them ``You have to find the defendant guilty beyond a reasonable doubt.'' It's also appropriate to tell them that finding a reasonable doubt is not precluded by the failure to produce evidence of who actually committed the crime.
Judge LANCE ITO: All right, the Court will give a Court special instruction that will read as follows ``The prosecution has the burden of proving beyond a reasonable doubt each element of the crimes charged in the information and that the defendant was a perpetrator of any such crimes. The defendant is not required to prove himself innocent or to prove that another person committed the crimes charged.''
BRIAN KELBERG: [inaudible] to prepare that instruction, Your Honor?
Judge LANCE ITO: Please.
BRIAN KELBERG: Could I Did the Court write out its
Judge LANCE ITO: Yes.
BRIAN KELBERG: Could I get that at the break?
Judge LANCE ITO: Yes.
BRIAN KELBERG: Thank you.
Judge LANCE ITO: All right D-36?
BRIAN KELBERG: And I assume the Court is rejecting D-35?
Judge LANCE ITO: Actually, it's a combination of special instruction two by the People and D-35 submitted by the defense. D-36? Sounds like a Martin Guitar catalogue.
BRIAN KELBERG: I'm sorry, Your Honor?
Judge LANCE ITO: Never mind.
BRIAN KELBERG: The citation, perhaps, says all I need to argue on this one. I'll submit it.
GERALD UELMEN: This simply expands on what the Court has already indicated it will give, and we're all the way back to 1873
BRIAN KELBERG: [inaudible] I wonder if Abraham Lincoln had something to do with [inaudible]
Judge LANCE ITO: I don't think so. It's about eight years too late.
BRIAN KELBERG: Well, no but he may have drafted it at the trial level and it took a long time to get into the appellate court [muffled laughter in the courtroom].
Judge LANCE ITO: No, I don't think it took that long back then. All right, I think this is sufficiently covered by the other instructions. D-37?
BRIAN KELBERG: Your Honor, I think, basically, the same applies for D-37. The Court has worked out a compromise, and, again, for all the reasons previously submitted we would ask the Court to reject this and give the instructions that the Court has already indicated at this point.
GERALD UELMEN: Well, I think it's appropriate in a case in which the defense, essentially, the defendant is not the person is not the person who committed the crime that identity is an element of the crime that although it's not an element of the crime, but the fact that the People must prove beyond a reasonable doubt. And a reasonable doubt simply as to identity is sufficient to justify an acquittal.
Judge LANCE ITO: All right. I think this is adequately covered by the other instructions and I'll decline D-37. D-38?
BRIAN KELBERG: Your Honor, this instruction is properly and accurately covered in 17.40, which gives the jury an instruction of law dealing with their responsibilities. This is made clear to them and that to In essence, this is the anti-Alan [sp] instruction, if you will. It's, from the defense perspective, trying to impress upon the jury that you can hold out, because as everybody understands, we need 12, they need one. And so it is not, number one, appropriate to try and focus on things which would suggest to jurors that they should hold out. Number two, 17.40 tells the jury how they should approach their responsibilities. And number three, even if we were in federal court where an Alan instruction might be available, such an instruction such as this would come at the end of the case, not as one is about to instruct the jury which is to begin deliberations. It should not be given. We should stay with the pattern instruction 17.40.
GERALD UELMAN: We believe this an appropriate instruction. That it is supported by People v. Wade [sp]. This is not an invitation to the jurors to hold or be unreasonable in the deliberative process, but to inform them of their responsibility to individually reach a verdict, and if they have a reasonable doubt, not to be influenced, to vote in favor of conviction simply for the mere purpose of getting a verdict. And we believe in the context of a trial of this duration, of the amount of effort and expense that has gone into it, there may be a tendency on the part of jurors to think that the most important thing is for them to get a verdict even if they do entertain a reasonable doubt. So we believe, in the circumstances of this case, this is a very appropriate instruction.
Judge LANCE ITO: All right. I think that A-1, the pattern instructions do, in fact, cover this adequately, and I think this will be the subject of strong argument by Counsel on both sides. All right. Any other instructions that need to be contemplated at this point?
BRIAN KELBERG: Your Honor, we have a Shipp instruction.
Judge LANCE ITO: Yes.
BRIAN KELBERG: We also had I'm trying to remember where the Farmer case fit in as to which instruction.
Judge LANCE ITO: All right. Let's go to the Shipp instruction. If I could find my copy here All right. Mr. Uelmen?
GERALD UELMEN: Yes, Your Honor. Our problem with this instruction is that there are really three alternatives with respect to the Shipp testimony, and this instruction only lays out two of them. The third alternative our position is that this statement was never made. And the instruction assumes that the jury will find that the statement was made and gives them two alternatives in terms of how they might construe that statement, and then the evidentiary effect they should give to it. So we believe the instruction should also include, ``If you find the statement never occurred, of course, you will disregard it,'' and when it refers to the statement, refer to it as ``an alleged statement.''
BRIAN KELBERG: Your Honor, I did not have the benefit of hearing in person the arguments or the ultimate testimony of Mr Shipp, but I have reviewed the appropriate citations in the transcript. I notice on page 12,686, the Court ruled on the admissibility of that testimony without a limitation. The Court said the statement regarding the dreams about killing will be admitted. The actual testimony that was heard by the jury is on page 12,779. And the statement on line 22, the answer, that is, ``He kind of jokingly just said, `You know, to be honest, Shipp' that's what he called me, Shipp ``he said I had some dreams of killing her.''
It seems to me, Your Honor, that this instruction is dictating to the jury how they should assess that evidence when, in fact, it is for the jury to assess that evidence. In essence, it seems to me, with all due respect to the Court, that the Court is revisiting whether the Court properly ruled on admitting the evidence in the first place, but that's a little late no offense to the Court. The issue is the evidence was received. In the event Mr. Simpson is convicted, I'm sure it will be an issue on appeal, but as far as trying to single out a particular piece of evidence and say to the Court that say to the jury, excuse me, that this is specifically how you must evaluate this if it's this, you gotta go this way, if it's that you can go the other way this is argument for the jury to hear from Counsel, not in the form of a jury instruction.
I say that with all due respect. The Court has had an incredible number of decisions to make, and they are difficult decisions, and there's nobody in the world who can make the correct decision every time, but as judges and lawyers know, good judges, as yourself, make decisions and move on. They don't revisit them. If they get overturned, they get overturned, and it happens to all lawyers. We've all had cases come back to be retried, and judges have had cases come back to be retried. But to use a jury instruction for this narrow focus of evidence, rather than to allow argument by Counsel, I think would be a mistake.
Judge LANCE ITO: But don't you think that if I perceive a significant problem, and if I can avoid this case coming back by giving an appropriate instruction, better late than never?
BRIAN KELBERG: No, I don't think so, Your Honor, because
Judge LANCE ITO: Because Shipp Shipp happens.
BRIAN KELBERG: To be honest with you
[sound of laughter in courtroom]
BRIAN KELBERG: To be honest with you, I think, if the Court really felt the Court made a mistake, the Court would entertain a motion to strike the testimony and instruct the jury to disregard. And that really, in my judgment, is what the Court would have to do to deal with this. Otherwise, it's in It's in without limitation. It's for the jury to evaluate based upon the argument of Counsel. I'll submit that.
GERALD UELMEN: Well, Your Honor, at this time, we would make a motion to strike that testimony. Alternatively, if the testimony is not going to be struck, we believe a limiting instruction is highly appropriate, and an argument that, because the Court didn't give a limiting instruction and evidence was admitted, it is somehow precluded from giving a limited instruction limiting instruction at the close of the evidence finds no support in the law whatsoever. We believe that it's the Court's obligation, if there is really concern that evidence will be misused, that it will be applied by the jury in a way that is contrary to the Court's intentions when the evidence was admitted, the appropriate remedy is to give a limiting instruction.
[pause while Ito formulates his ruling]
Judge LANCE ITO: All right, the Court will instruction the jury as follows and this will follow after the 2.20 series of instructions. ``Witness Ronald Shipp testified to a statement alleged to have been made by the defendant concerning dreams. If you find'' Excuse me. ``You must first determine whether such statement was made by the defendant. If you find that the statement was not made by the defendant, you shall disregard the statement. If you find the statement referred to subconscious thoughts while asleep, you are to disregard the statement. If you find that the statement referred to an expression of a desire or expectation, you may give such
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 9
Judge LANCE ITO, Los Angeles Superior Court: [in progress] You are to disregard the statement. If you find that the statement referred to an expression of a desire or expectation, you may give such statement the weight to which you feel it is entitled. Evidence of oral statements made by a defendant should be viewed with caution.'' That will be the Court's instruction.
BRIAN KELBERG, Deputy District Attorney: Your Honor, do you wish us to prepare it, and if so, can I obtain the instruction as written by the Court?
Judge LANCE ITO: Yes. Since you have the computer program.
BRIAN KELBERG: I'm sorry, Your Honor?
Judge LANCE ITO: Never mind. All right
BRIAN KELBERG: The motion to strike is denied, Your Honor?
Judge LANCE ITO: Denied. I think given the way it's interpreted, since is was an ambiguous statement, it can be taken either as an expression of what happens while one is asleep or as an expression of desire or expectation, it could be interpreted either way.
BRIAN KELBERG: Your Honor, a few additional instructions.
Judge LANCE ITO: Which are?
BRIAN KELBERG: I offer 2.13 modified, this has been given, this is in this latest package that I brought down that had the court's desired instructions regarding DNA evidence.
Judge LANCE ITO: The latest package.
BRIAN KELBERG: This afternoon, when I gave you that had on the face
Judge LANCE ITO: Yes
BRIAN KELBERG: OK, 2.13, because of the computer program, I told, that they couldn't write the word modified after CALJIG 2.13, but it is a modified, and the reason is because of Mr. Peratis' videotape, which was admitted under 1202 of the Evidence Code, cannot be considered for the truth of the matter asserted, and that's why this form instruction needed to be modified.
Judge LANCE ITO: All right, do you have that 2.13, Mr. Uelmen?
GERALD UELMEN, Simpson Attorney: Your Honor, I'm trying to locate it, and
BRIAN KELBERG: I just now gave it to you.
Judge LANCE ITO: And counsel, as soon as we finish our hour jury instruction conversation, I'll direct Mr. Kelberg to create the appropriate package, and file that with the court by the close of business today, and then we'll take a brief recess and then launch into the exhibits.
BRIAN KELBERG: Your Honor, for my edification, how does the court want the handled deletions, and so forth, in the standard instructions? Do you want us to delete them or leave them for the court to strike out in the fashion the court prefers?
Judge LANCE ITO: Give them to me and I'll make the deletions and corrections, except for the ones that we've already agreed that you're going to modify the
BRIAN KELBERG: Sure.
GERALD UELMEN: We have no objection to number three, Your Honor. We also have one other additional matter with respect to the instructions. Again, revisiting some of the shit that happened in this case. [laughter] Your Honor will recall that the defense sought sanctions with respect to the withholding of the notorious page four, an incident involving the missing page of a document with a staple hole.
Judge LANCE ITO: All right, we have the, I'll call the sanction instructions.
GERALD UELMEN: Well, we had indicated at the time that our concern in seeking an instruction was to offset any possible argument of this issue to the jurors, and rather than re-emphasize it with the jury instruction, we feel that even more appropriate remedy would simply be to foreclose any argument of any adverse influence can be drawn against the defense as a result of that incident, and if there is an agreement that it would not be argued, an instruction would not be necessary.
BRIAN KELBERG: Your Honor, I don't think that I'm adequately informed on this issue. It is not really a jury instruction issue. It is an issue in the form of a motion.
Judge LANCE ITO: All right, here's the thing though. During the course of our discussion about the Page Four staple incident, I did dictate and it's in the record, the instruction that I was going to give as a curative instruction. So, you were on notice as to what the Court was going to say and will say, and I'm sure Mr. Byrne [sp] will find that for me in about two minutes.
BRIAN KELBERG: I'll pass the wisdom on to the powers that will argue the case.
Judge LANCE ITO: And it turned out to be such a once in the entire milieu of what we have here, I suspect we're not going to be arguing staple holes.
BRIAN KELBERG: I would hope not, Your Honor. Based on what I heard yesterday about hypodermic syringes, I think I would have to agree with the Court's assessment.
Judge LANCE ITO: All right.
BRIAN KELBERG: Your Honor, there actually are a couple more issues.
Judge LANCE ITO: Would you notify me, however, before the close of business today as to what your intent is so I can resurrect the language out of the transcript.
BRIAN KELBERG: If I may, may I ask Mr. Hodgman who has, I think, more direct involvement in the closing argument aspect to speak to the appropriate people and to either directly inform the Court or I'll inform the Court.
Judge LANCE ITO: All right. Certainly. The second sanction issue instruction has to do with the contact sheet issue.
GERALD UELMEN: Your Honor, we had I believe Mr. Cochran talked to Ms. Clark yesterday or the day before about elevating the level or relationship with each side in terms of they are seeking
Judge LANCE ITO: Better late than never.
GERALD UELMEN: They were seeking a sanction instruction on the Lee notes. We were seeking a sanction instruction on the contact sheets, as well as a couple of outstanding sanctions on Ms. Clark, and we had proposed just canceling all that out and moving on to closing argument. I don't know what the other side what their response is to that.
BRIAN KELBERG: Your Honor, we'd be glad to elevate for the public's perception of the legal profession, by gladly joining in that stipulation.
Judge LANCE ITO: All right, thank you.
BRIAN KELBERG: Still some more, Your Honor.
Judge LANCE ITO: More?
BRIAN KELBERG: Just for the record, 8.31, again in the same packet I just gave the Court, but it will be a part of the final packet that we produce. That's the alternative of second degree murder on the applied malice theory.
Judge LANCE ITO: Yes.
BRIAN KELBERG: I've give the report
Judge LANCE ITO: And the defense objection's noted.
BRIAN KELBERG: And I've given the Court what I believe is the Court's requested modification to 4.50.
Judge LANCE ITO: Let me just make sure. Mr. Uelmen, you have that 4.50, as modified by the Court?
BRIAN KELBERG: I gave it to him, but here's another copy.
GERALD UELMEN: I know he did.
BRIAN KELBERG: Here you go.
GERALD UELMEN: I'm trying to figure out how it got lost in such a small staff.
Judge LANCE ITO: Mr. Kelberg, as far as your timing, the close of business today is 6:00.
BRIAN KELBERG: Thank you, Your Honor. I'm not computer literate, but I'm sure we have people out there who are and can generate these things.
Judge LANCE ITO: Judge Adler's CALJIG program is rather amazing.
BRIAN KELBERG: I'll take your word on that, Your Honor. I still have to go to the old-fashioned one.
Judge LANCE ITO: No, I mean it has global commands, it can do all sorts of amazing
BRIAN KELBERG: These are meaningless concepts to me, Your Honor. I also gave Mr. Ulemen what I understood to be the suggested revision of 3.31, covering specic intent, mental state and the requisite element in the three degrees of murder. I don't think they've had a chance to look at it. That's also part of the package.
GERALD UELMEN: I have no objection to these revisions. They do accurately reflect the ruling of the Court.
Judge LANCE ITO: All right, thank you. All right, anything else?
BRIAN KELBERG: Not on instructions, I don't believe, Your Honor.
Judge LANCE ITO: All right.
BRIAN KELBERG: The Court is going to take under submission, I gather, several of these instructions.
Judge LANCE ITO: We need to conclude our discussion on the Farmer instruction. I'm sorry. That's what we needed to do.
BRIAN KELBERG: It's 211.5, I think, in the instructions.
Judge LANCE ITO: Right. Mr. Scheck was going to get me something, some case authority on the DNA instruction.
BARRY SCHECK, Simpson Defense Attorney: Yes.
Judge LANCE ITO: So, that one remains open and there was one of the D's that I left open.
BRIAN KELBERG: D-35, I think, Your Honor had indicated
Judge LANCE ITO: I was going to think about it.
BRIAN KELBERG: I think so. Your Honor, if I might, I would like to be heard.
Judge LANCE ITO: D-33.
BRIAN KELBERG: I'm sorry, you're right. I would like to be heard, if I could, just briefly on that instruction as well.
Judge LANCE ITO: Well, that's one I've heard the argument and I'm going to think about it. All right, but let's discuss the Farmer issue.
BRIAN KELBERG: Your Honor, the facts in Farmer are exactly the the kind of facts which lead to the 2.11.5, being formed in the language it is. In Farmer, you have multiple identifiable defendants. But they are tried separately. So the jury, in order not to be misled, and I'm afraid somebody moved the specific citation in the case dealing with 2.11.5, if I could have just a moment. Oh, there we go. On Page 918.
The defendant was the one objecting to the instruction on unjoint perpetrators. The instruction, according to the Court of Appeals, does not tell the jury it cannot consider evidence that someone else committed the crime, citing Hall. As as I recall from what I have heard in this case, based upon Hall and its progeny, the Court rejected certain efforts with respect to the admissibility of third parties in this case. The Court of Appeal in not Court of Appeal the Supreme Court in Farmer goes on, and merely says, ``The jury is instructed not to speculate on whether someone else might or might not be prosecuted,'' and the word, ``prosecuted'' is italicized for emphasis. And that's really what 2.11.5 is all about, that the jury not convict Mr. Simpson, or in this case, Mr. Farmer, on the theory that the jury may be concerned that because they don't have this other person available, they should take it out on this individual and that's why 2.11.5 was drafted and drafted in the language in which it presently appears in the revision.
It is not appropriate for this situation. Counsel's argument is really an argument to the jury about whether, if the jury believed there are multiple killers, that creates a basis to understand it could not be Mr. Simpson involved at all, not a concern that he would be convicted because there are some identifiable other persons whose not present in this courtroom. Submitted, Your Honor.
GERALD UELMEN: Again, Your Honor, this simply emphasizes the appropriateness of the instruction in this case. You can bet that the defense will argue that there was more than one perpetrator involved in this homicide and that's a very relevant fact. But what the jury is not to speculate on, is why such other person is not here on trial. And there is the risk that an adverse inference can be drawn against the defendant from the absence of another person on trial and the jury should be told, ``You simply should not speculate about that. That is not a concern to you in this case.''
And in the facts of this case, that is an appropriate instruction. In the precise form recommended in the Farmer case and in the revision to 2.11.5, we believe the jury should be instructed to that effect.
Judge LANCE ITO: All right. I find that the fact situation in this case does not lend itself to 2.11.5, since there's no identifiable other suspect and also, this jury is not under any impression that there has been any other person indicted or arrested or accused of this crime.
All right. We'll take a 15-minute recess and then we'll shift into the exhibits discussion.
BRIAN KELBERG: Your Honor, I have some exhibits which I've been notified through one of our younger lawyers, Mr. Douglas is going to pose objections to or has posed objections to. But I'm also under instructions from the Court to get this packet going. If I may be excused for maybe a half-an-hour to I'm going to go upstairs with Mr. Yokelson and Mr. Hodgman. But I've got really, the best packet of materials to give to people to get everything together in the format the Court wants. If I could be excused to perhaps 3:30 just to make sure everything gets rolling.
Judge LANCE ITO: 3:30. All right, Mr. Ormand, I'm going to excuse you because the video tapes, I can look at myself. All right, thank you. We'll be in recess until 3:30.
RIKKI KLIEMAN: Court is going to take a recess for a half an hour, and that really has to do with the fact that Brian Kelberg is really the jack of all trades today. He is doing all of the work for the jury instructions, has to put them together, must get them to Judge Ito by 6:00, because Judge Ito says he is going to instruct the jury tomorrow morning. In addition, Brian Kelberg has some work to do in the court again, concerning exhibits. We're going to take a commercial break. When we come back, we're going to summarize what happened today, or this afternoon, in terms of jury instructions, but one thing I should mention to for those of you who've been watching before the break very interesting moment concerning Brian Kelberg, going back to Ron Shipp's testimony of O.J. Simpson allegedly saying that he had dreamt of killing his wife Nicole. You saw a very savvy prosecutor there in Brian Kelberg, who in his own way warned Judge Ito that it was time to re-assess his earlier ruling, because that ruling might be error in an appellate process, Brian Kelberg permitted Judge Ito to save himself. We're going to take a break, come back and talk about that and more.
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 10
Judge LANCE ITO, Los Angeles Superior Court: All right, back on the record in the Simpson matter.
RIKKI KLEIMAN, Anchor: I have to just interrupt you because we hear Judge Ito, but I want you to finish this later on, because I think it's so important.
Judge LANCE ITO: Previously Deputy Jacks [sp] had advised me that Mr. Simpson wished to waive his presence for the exhibits discussion?
CARL DOUGLAS, Simpson Attorney: That's correct, Your Honor.
Judge LANCE ITO: All right, and you're authorized on his behalf to waive his presence for these proceedings?
CARL DOUGLAS: I am, Your Honor.
Judge LANCE ITO: All right, court will accept the waiver. All right, Mr. Darden, you're here to argue certain items of evidence?
CHRISTOPHER DARDEN, Deputy District Attorney: Just a couple of items that I as I understand it, the defense has lodged an objection to.
Judge LANCE ITO: All right, which items are those, counsel?
CHRISTOPHER DARDEN: Five hundred and 501.
Judge LANCE ITO: Five hundred and 501?
CHRISTOPHER DARDEN: I withdraw both of those.
Judge LANCE ITO: All right, both 500 and I'm sorry, I just lost Mrs. Robertson. All right, Mrs. Robertson? All right, the prosecution is withdrawing both 500 and 501.
CHRISTOPHER DARDEN: And that will be the one page statement of Patricia Beret [sp] and
Judge LANCE ITO: Five oh one is a number of photographs.
CHRISTOPHER DARDEN: I'm sorry, not 501, Judge. I apologize, just 500.
Judge LANCE ITO: Five hundred.
CHRISTOPHER DARDEN: Right.
Judge LANCE ITO: All right, 500 is withdrawn.
CHRISTOPHER DARDEN: As far as
Judge LANCE ITO: The statement of Patricia Beret.
CHRISTOPHER DARDEN: Yes, 501 are the 15 photographs shown to Mr. Hydstra. He testified that he heard a gate, a metal gate slam.
Judge LANCE ITO: Yes.
CHRISTOPHER DARDEN: And he was confronted with several photographs of metal gates attached to homes
Judge LANCE ITO: Yes, in the area attached to homes on the west side of Bundy and adjacent to and around 875 South Bundy, and it was his testimony that those pictures were in fact photos of gates at those locations. So there was proper foundation, on 501.
Judge LANCE ITO: All right, Mr. Douglas?
CARL DOUGLAS: Your Honor, the court looks at page 36473, and 36474. You'll find that there was no clear acknowledgment by Mr. Hydstra authenticating the pictures. What occurred was there was an ambiguous answer given to a compound question, the question being, ``You see this stack of photographs, and you also see that there are numbers for the houses in the photographs as well?'' And the answer is, ``Oh, sure,'' and I think that that is not sufficiently adequate to lay a proper foundation for the introduction of those photographs.
Judge LANCE ITO: All right, is the matter submitted?
CARL DOUGLAS: It is.
Judge LANCE ITO: All right, the objection will be overruled. The photographs depict, as Mr. Darden indicated, numerous gates, metal gates in the area. Also, the aerial photographs depict the same gates, only at more distant locations, coming from a more distant view, and I think there's an adequate foundation. It's also a minor point. Mr. Darden?
CHRISTOPHER DARDEN: There is an objection to item 535, and 536.
Judge LANCE ITO: All right, 535.
CARL DOUGLAS: They're the same as 491 and 492 as well.
Judge LANCE ITO: Five thirty-five and 536, and you are correct, they are also 491 and 492.
CHRISTOPHER DARDEN: And page 38346. These photographs were both shown to Detective Luper during the defense case, of these photographs rather, and Detective Luper testified these are the wedding photos?
Judge LANCE ITO: This is one photograph of somebody holding up, holding up the bedspread with the photograph underneath and then the photograph turned over.
CHRISTOPHER DARDEN: Thank you. Detective Luper testified that those page numbers that he recovered that photograph from beneath the bed on June 13th. Initially the photographs were shown to Gigi Gordan, and she could not authenticate them or their location on the date of June 13th. Detective Luper did that.
CARL DOUGLAS: I didn't have a chance to reference Luper, but I know that Arnelle Simpson was asked about 'em, and she cannot lay a foundation. Gigi was asked about 'em and she, too, cannot lay a foundation. And, I think, Ms. Collins, one of the earlier witnesses for the defense was also asked about him and could not lay a foundation. I don't have a specific recollection as to Mr. Luper.
Judge LANCE ITO: All right, the court does recollect Detective Luper's testimony, regarding the recovery of these items, so the objection will be overruled.
CARL DOUGLAS: Generally, which two will come in now?
Judge LANCE ITO: Well, the problem is I'm going to have to leave them both in, because different people testified to them at different points and identified them as different exhibits, so we're kind of stuck with having duplicate photos.
CARL DOUGLAS: OK.
Judge LANCE ITO: Because they're in vastly different parts of the case.
CARL DOUGLAS: Well, Your Honor, he was referring to 535 and 536.
Judge LANCE ITO: That's correct.
CARL DOUGLAS: I don't think that there's a doubt that 491 and 492 were not properly authenticated. I don't think Mr. Darden's even arguing that.
Judge LANCE ITO: All right, do you agree with that?
CHRISTOPHER DARDEN: Well, Judge, that's fine, Judge.
Judge LANCE ITO: All right, the objection will be sustained then as to 491, 492.
CHRISTOPHER DARDEN: There is also 603 and 604. Six oh three is a non-disclosure agreement signed Laura McKinny's lawyer. Six oh four is the personnel complaint involving Roderick Hodge.
CARL DOUGLAS: Six oh four we withdraw our objection to.
CHRISTOPHER DARDEN: I'm sorry?
CARL DOUGLAS: We withdraw our objection to 604.
CHRISTOPHER DARDEN: We are not seeking to admit 604, for authentication.
CARL DOUGLAS: Well, then we'll seek to admit it.
CHRISTOPHER DARDEN: We're also [unintelligible] contained in it in complaints of other person
Judge LANCE ITO: All right, hold on, let's do 603 first.
CHRISTOPHER DARDEN: OK.
Judge LANCE ITO: All right, 603
CHRISTOPHER DARDEN: That's withdrawn.
Judge LANCE ITO: Withdrawn? Any comment, Mr. Douglas?
CARL DOUGLAS: On 603?
Judge LANCE ITO: Yes.
CARL DOUGLAS: She was unable to authenticate, so I think it's proper.
Judge LANCE ITO: All right, 603 is withdrawn. All right, 604 is the personnel complaint testified to by Roderick Hodge.
CHRISTOPHER DARDEN: He testified there was a document he'd never seen before, and no one was called to authenticate the document. It contains hearsay, the hearsay of other individuals, and there's a 352 objection.
Judge LANCE ITO: All right, Mr. Douglas?
CARL DOUGLAS: The significance of the document, Your Honor, as was used by the defense, was to support the position that Mr. Hodge's complaints on the occasion of his arrest as far as certain words that were spoken by Mr. Fuhrman in the presence of his partner were complained to through this official document, and I thought that the information was being used by the People to suggest and to impeach Mr. Hodge by suggesting that the absence of any references to that allegation would undermine the undermine the credibility of Mr. Hodge.
We think, Your Honor, that the that the absence of any references in that document supports our position that there was in fact a difficulty or a problem or, if you will, a failure by law enforcement agencies to acknowledge certain complaints that were lodged against them. And we would like to have that document admitted so that we can argue the implications of the absence of that claim. Because certainly the document reflects the occasion of Mr. Hodge's arrest. It reflects the circumstances of his arrest, and he acknowledged that it reflected his incident. He acknowledged his having made certain claims and we think that the absence of that particular reference is important for our theory of our defense.
Judge LANCE ITO, Los Angeles Superior Court: All right. The Court finds that there's no foundation for this. It was used to as an impeachment document but Mr. Hodge indicated he had not seen it and it did reflect, according to Mr. Hodge, an allegation of discourtesy which was consistent with his testimony here. So the objection will be sustained.
CARL DOUGLAS: The objection is what?
Judge LANCE ITO: Sustained.
CARL DOUGLAS: Thank you.
Judge LANCE ITO: The withdrawal is upheld depending on how you want to look at it. All right, Mr. Darden?
CHRISTOPHER DARDEN, District Attorney: That's all I have.
Judge LANCE ITO: All right, get rested.
BRIAN KELBERG, Deputy District Attorney: Could the court entertain the exhibits that I deal with so I can get back upstairs?
Judge LANCE ITO: Yes, please.
BRIAN KELBERG: Your Honor, the note I have and please correct me, Mr. Douglas, if I am acting on erroneous information The defense is objecting to 507
Judge LANCE ITO: That's withdrawn.
CARL DOUGLAS: The objection's withdrawn.
BRIAN KELBERG: Well, Your Honor, we are not offering we're going to have a lot of, perhaps, difference of opinion and we are not offering the medical reports, 507 And I haven't seen these documents in a while, but that's Dr. Huizenga's six-page report, but there are two pages of hand-drawn uh, hand drawings which we do want the jury to see, but they are going to perhaps have to be modified in some way. I believe, if I'm not mistaken, Dr. Faerstein's name is one of them with Dr. Faerstein's number phone number and so forth. It may be on the right-hand drawing. The outline is actually going to be a better two left hands because they're using a prepared outline of the human hand, which happens to be of the left hand as I recall, to reflect both right and left.
But we are offering the hand drawing. We are not offering the report itself. We are not offering 508, 509
Judge LANCE ITO: Wait a minute, let's deal with 507.
CARL DOUGLAS: [unintelligible]
Judge LANCE ITO: What's your basis for offering?
CARL DOUGLAS: That it was authenticated by Dr. Huizenga. That it accurately reflects the body of information that he was given on June 15th. It accurately reflects observations about which he testified and it provides a foundational basis for the jury to assess and evaluate the quality of his opinions concerning certain conditions of Mr. Simpson in so far as arthritic conditions, certain observations as to cuts. Dr. Huizenga was
Judge LANCE ITO: How do we overcome the hearsay objection?
CARL DOUGLAS: Because it has sufficient guarantees of trustworthiness, Your Honor, and as well, it is offered to support the basis for Dr. Huizenga's opinions. He was subject to strenuous cross-examination, and I think it only fair that the jury be in a position to independently look at and evaluate those documents that were used to reach certain opinions that came under such ferocious attack, particularly, given as we now know some of the instructions that the court will give based on some of the statements that Mr. Simpson made to Dr. Huizenga and implications that, it appears, the People argue from those statements. I think it only fair that the jury be given the chance to look at the document that was referred to and that was cross-examined very extensively about.
BRIAN KELBERG: Your Honor, I don't think ferocious is exactly how I would describe the cross-examination. If that were the case I think I took my life into my hands by laying on the counsel table and allowing Dr. Huizenga to perform a manipulation on me. I would say, however, that the hearsay
Judge LANCE ITO: I was about to direct your attention to the legal argument that I was interested in.
BRIAN KELBERG: The hearsay problem cannot be overcome. I find that, first of all, we don't have 80324 of the federal rule, the trustworthiness exception when there is not another exception to the hearsay rule that's applicable. The drawings, however, qualify, in essence, as photographs. They are demonstrative evidence that Dr. Huizenga has authenticated that fairly and accurately represent the identification of certain injuries that he observed on June 15th of 1994, and clearly, those are of significance to the jury's consideration of Mr. Simpson's guilt. They are not subject to hearsay. As I say, they are the equivalent of photographs except that they are hand drawings.
Judge LANCE ITO: All right. Any comment as to 507-A which is the ELMO?
BRIAN KELBERG: Your Honor, I have not seen is there a pointer or something on this that we highlight something?
Judge LANCE ITO: Yes.
BRIAN KELBERG: Yes, I would offer that as well because of what is
Judge LANCE ITO: Mr. Douglas?
CARL DOUGLAS: No objection to that, Your Honor.
Judge LANCE ITO: All right. All right the objection will be sustained to the report, the excuse me, I'll allow the withdrawal of the report. The drawings will remain. All right, Mr. Kelberg?
BRIAN KELBERG: I'm sorry. Are the doc are the two hand drawings
Judge LANCE ITO: Yes, will remain.
BRIAN KELBERG: They will remain, OK. We are not offering 508, 509
Judge LANCE ITO: 509 is not being offered?
BRIAN KELBERG: Correct. These are all records of sedimentation rates and so forth. This was part of the examination regarding whether or not Mr. Simpson had evidence of an acute arthritic episode at or about the time of June 12, 1994.
Judge LANCE ITO: All right. So you're not offering 509?
BRIAN KELBERG: Not offering 509. It should be page 450 at the top on the discovery
Judge LANCE ITO: Right. Mr. Douglas?
CARL DOUGLAS: Fine, Your Honor.
Judge LANCE ITO: All right, withdrawn.
BRIAN KELBERG: As was 508, Your Honor.
Judge LANCE ITO: All right. Withdrawn.
BRIAN KELBERG: And as is 510. That's Dr. Maltz's [sp] I don't have the date, but it's 1992 examination. That has a sedimentation rate of 34 not offered.
CARL DOUGLAS: Fine, Your Honor.
Judge LANCE ITO: Withdrawn.
BRIAN KELBERG: We are offering 511, 512 and 513
Judge LANCE ITO: All right. I don't have any objections until 525.
BRIAN KELBERG: OK. We are offering 514
CARL DOUGLAS: Next is 522, counsel.
BRIAN KELBERG: OK. I'm going to withdraw or not offer, let me make sure OK, 522 is actually, I believe, Your Honor, 522-A. I know that Mr. Lynch was asked by me to make sure that we substituted, for both 521 and 522, the edited tapes that reflect only what was shown to the jury.
Judge LANCE ITO: 522-A.
BRIAN KELBERG: Right. So there should be a 521-A, which is the actual video that was shown to the jury, which we are offering; not 521 which has more on it than was seen by the jury.
Judge LANCE ITO: All right. I sort of have it the other way around. Oh, I'm sorry. I stand corrected, 521-A, all right.
BRIAN KELBERG: Five twenty-one-A, I have as that portion of the exercise video out tapes from May 25th of 1994 which were seen by the jury and which is the videotape we are offering in lieu of 521, which is the full videotape, not all of which was seen by the jury.
Judge LANCE ITO: All right. Mr. Douglas?
CARL DOUGLAS: That's fine, Your Honor.
Judge LANCE ITO: All right.
BRIAN KELBERG: 522-A is the motivational speech and that shows that portion of the motivational speech which was seen by the jury and excludes that portion which is on the full video 522, which was not seen by the jury, and I understand there's an objection to that.
CARL DOUGLAS: There was no authentication as to the date of that particular item. It was simply played for Mr. Dr. Huizenga. There was a representation as to what it reflected and when. They offered no other witness who came from the Juice Plus Company who was present at that particular speech who could then properly authenticate the date or lay a foundation for its introduction. It is therefore not admissible in its present form.
BRIAN KELBERG: Your Honor, could we put this aside for one moment? I have to confess that I informed Ms. Clark and other lawyers of the need to have a witness to lay a foundation.
CARL DOUGLAS: And that was never done.
BRIAN KELBERG: OK, I'll take the Court's representation that it was not done. I tried to follow it up. I was under the impression that there was either a resolution by stipulation or in some other manner it was resolved. If the Court feels that there was no foundation, the question becomes one of relevancy. I would not object to counsel's objection, and I anticipate then the Court will sustain.
Judge LANCE ITO: Sustained. All right, 525, report by Dr. Job
BRIAN KELBERG: I'm sorry, 523 is not offered, Your Honor. I have to back up for a second. That's Dr. Martell's radiology console report directed to Dr. Maltz.
Judge LANCE ITO: All right, withdrawn.
BRIAN KELBERG: Five twenty-four is not offered, that is Dr. Maltz's chart entry from sometime in 1994.
Judge LANCE ITO: Five twenty-five?
BRIAN KELBERG: Is not offered.
Judge LANCE ITO: All right, withdrawn.
BRIAN KELBERG: And I believe then the only remaining exhibits that I'm responsible for are to which there is an objection would be 583 and 584, the videotaped confessions of a medical examiner and an announcement. We are offering neither one of those.
Judge LANCE ITO: All right. Withdrawn.
BRIAN KELBERG: And I believe that is it.
Judge LANCE ITO: All right, thank you very much.
BRIAN KELBERG: May I be excuse, Your Honor?
Judge LANCE ITO: You are, sir. As I indicated, I'll be here until, well, 6:00, at least.
BRIAN KELBERG: Your Honor, if I find that were are having difficulties getting [unintelligible], I'll notify the Court and ask for relief 'til early tomorrow morning.
Judge LANCE ITO: Well, how 'bout later tonight, 'cause, Mr. Kelberg, I need to work on them, as well.
BRIAN KELBERG: I have every confidence we'll have them, because they're, primarily, going to be the standard forms that the Court wants to modify in the Court's own fashion. So I think there's every reason we'll have them done.
Judge LANCE ITO: All right. OK, Mr. Yochelson
ALAN YOCHELSON, Legal Representative for LAPD Personnel: Yes, Your Honor?
Judge LANCE ITO: We're paring down the list here. All right, do you want to take it from the top with what's left?
ALAN YOCHELSON: Yes, Your Honor.
Judge LANCE ITO: All right, 495 statement of Ellen Aaronson.
ALAN YOCHELSON: And we submit that this is admissible as a [inaudible] statement, Your Honor.
CARL DOUGLAS: Your Honor, I think it's not properly foundation no proper foundation was laid. It's still hearsay. It's not a proper document to be submitted or offered by the People in this case.
Judge LANCE ITO: My recollection is that she was confronted with it, acknowledged that she gave the statement but then later said that she was mistaken as to the time.
ALAN YOCHELSON: Exactly, Your Honor, and that is a question of fact to resolve that the foundation is properly made.
Judge LANCE ITO: All right, the objection be overruled. All right 498, statement of Denise Pilnak.
ALAN YOCHELSON: And we make the same argument, Your Honor. This was offered as a prior evidence of a prior inconsistent statement.
CARL DOUGLAS: I'm not sure that it was inconsistent with the testimony in court, Your Honor, and I have the same objection as with the other.
Judge LANCE ITO: She was confronted with regards to the time that she heard items
ALAN YOCHELSON: Yes
Judge LANCE ITO: and she did acknowledge that she gave the statement
ALAN YOCHELSON: Yes
Judge LANCE ITO: but then she said that, based upon other things, she had, now, a different opinion on the time?
ALAN YOCHELSON: Yes.
Judge LANCE ITO: All right, objection's overruled. OK, 548.
CARL DOUGLAS: Five thirty-one, Your Honor.
Judge LANCE ITO: I'm sorry, 531. Mrs. Robertson, do I have that? It should be in my package? All right, I'll ask Mrs. Robertson to look for that one. Would you note that? Which one which number is that 531? I'm sorry, 531. Got it. All right 531, 530 531.
ALAN YOCHELSON: Yes, apparently, in reviewing the transcript in volume 190, it was marked at page 3777. Ms. Clark was interrupted as she marked it, so the full citation isn't there, but it was marked at that page. There was an extended discussion at sidebar regarding this issue. Ms. Clark questioned the witness regarding the existence of a dome light, and, I believe, the witness stated, according to the transcript, that he was that he lacked the recollection one way or the other if the dome light went on, and he denied knowledge of how the dome light works in a Ford Bronco. We would submit
Judge LANCE ITO: Which witness which witness was this?
CARL DOUGLAS: John Maraz.
ALAN YOCHELSON: John Maraz, Your Honor.
Judge LANCE ITO: All right.
ALAN YOCHELSON: We would submit that there is a that the photograph was marked and that he was questioned regarding it. Whether or not this has much probative value will be up to the jury, but we submit that the foundation is made.
CARL DOUGLAS: What occurred, Your Honor, if I can recall that I was present in court was that there was an objection upon the presentation or the marking of the exhibit. Ms. Clark was requested to try to lay a foundation before offering it or showing to the witness. She was unable to. That is why she did not offer the actual exhibit to the witness.
Judge LANCE ITO: All right. That's 531. The objection will be sustained lack of foundation. All right, next item.
ALAN YOCHELSON: People's 548, Your Honor.
CARL DOUGLAS: Withdraw that objection, Your Honor.
Judge LANCE ITO: All right, withdrawn the objection's withdrawn. I'm sorry.
CARL DOUGLAS: Correct.
Judge LANCE ITO: All right 578 I'm sorry, 570 and 571. Do you have those charts available, Mrs. Robertson?
ALAN YOCHELSON: Your Honor, I'm going to defer to Mr. Clarke [inaudible].
GEORGE CLARKE, Deputy District Attorney: Good afternoon, Your Honor.
Judge LANCE ITO: Good afternoon, Mr. Clarke. Long day.
CARL DOUGLAS: Your Honor, these arguments basically parrot those that were made when the boards were first presented, if you'll recall. Mr. Scheck objected both on 352 and on grounds that it's cumulative to the results of the RFLP DNA analysis board.
Judge LANCE ITO: All right, the matter submitted?
GEORGE CLARKE: Yes. I assume these are preserving objections.
Judge LANCE ITO: All right. The objection be overruled.
GEORGE CLARKE: Thank you.
Judge LANCE ITO: All right, 578?
GEORGE CLARKE: I can also answer for that. That is, I believe, two pages of transcript that were used in testimony and, otherwise, is submitted to the court.
CARL DOUGLAS: I don't think that it's appropriate that we would highlight any particular witness or any particular aspect.
Judge LANCE ITO: Refresh my recollection. What did we use this for?
CARL DOUGLAS: Bruce Weir.
GEORGE CLARKE: It was test previous testimony of Dr. Weir used with Dr. [unintelligible]. And it was used to clarify the witness' understanding of previous testimony by Dr. Weir.
Judge LANCE ITO: All right, I'm going to sustain the objection. All right, 587.
GEORGE CLARKE: Thank you, Your Honor.
Judge LANCE ITO: Thank you, Counsel. I'm sorry, 583. That's been withdrawn; 584, been withdrawn. Five eighty-seven?
ALAN YOCHELSON: And, yes, Your Honor, we are offering this as a prior inconstatement inconsistent statement to impeach Dr. Rieders with respect to no
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
Live Trial Coverage - CA v. Simpson - Day 154 - Part 11
Judge LANCE ITO, Los Angeles Superior Court: [in progress] confronted, with regards to the time that she heard items?
ALAN YOCHELSON, Prosecuting Attorney: Yes.
Judge LANCE ITO: And she did acknowledge that she gave this statement?
ALAN YOCHELSON: Yes.
Judge LANCE ITO: All right. But then she said that, based upon other things, she had now a different opinion on the time?
ALAN YOCHELSON: Yes.
Judge LANCE ITO: All right. Objection's overruled. OK, 548. I'm sorry, 531. Mrs. Robertson, do I have that? It should be in my package? All right, I'll ask Mrs. Robertson to look for that one. Would you note that? Which number is that? I'm sorry, 531, got it. All right, 531, 530
ALAN YOCHELSON: Yes. Apparently in reviewing the transcript, in volume 190 it was marked at page 3777. Miss Clark was interrupted as she marked it, so the full citation isn't there, but it was marked at that page. There was an extended discussion at sidebar regarding this issue. Miss Clark questioned the witness regarding the existence of a dome light, and I believe the witness stated, according to the transcript, that there was that he lacked a recollection one way or another if the dome light went on, and he denied knowledge of how the dome light works in a Ford Bronco. We would submit, however
Judge LANCE ITO: Which witness was this?
ALAN YOCHELSON: John Meraz, Your Honor.
Judge LANCE ITO: All right.
ALAN YOCHELSON: We would submit that there is a that the photograph was marked and that he was questioned regarding it. Whether or not this has much probative value will be up to the jury, but we submit that the foundation was laid.
DEFENSE ATTORNEY: What occurred, Your Honor, if I can recall that I was present in court, was there was an objection upon the presentation or the marking of the exhibit. Miss Clark was requested to try to lay a foundation before offering it, before showing to the witness. She was unable to, that is why she didn't offer the actual exhibit to the witness.
Judge LANCE ITO: All right. As to 531, the objection will be sustained. Lack of foundation. All right, next item.
ALAN YOCHELSON: People's 548, Your Honor.
DEFENSE ATTORNEY: We withdraw that objection, Your Honor.
Judge LANCE ITO: All right, withdrawn. The objection is withdrawn, I'm sorry.
DEFENSE ATTORNEY: Correct.
Judge LANCE ITO: All right, 578 I'm sorry, 570 and 571. Do you have those charts available, Mrs. Robertson?
ALAN YOCHELSON: And, Your Honor, I'm going to defer to Mr. Clark on that issue.
GEORGE CLARKE: Good afternoon, Your Honor.
Judge LANCE ITO: Good afternoon, Mr. Clarke. Long day.
DEFENSE ATTORNEY: Your Honor, these arguments basically parrot those that were made when the boards were first presented. If you'll recall, Mr. Scheck objected both on 352 and on grounds that it's cumulative to the results of the RFLP DNA analysis board.
Judge LANCE ITO: All right.
GEORGE CLARKE: Right. I assume these are preserving objections.
Judge LANCE ITO: All right. They're definitely overruled.
GEORGE CLARKE: Thank you.
Judge LANCE ITO: All right, 578.
GEORGE CLARKE: I can also answer for that. That is, I believe, two pages of transcript that were used in testimony and otherwise is submitted to the court.
DEFENSE ATTORNEY: I don't think it appropriate that we would highlight any particular witness for any particular aspect.
Judge LANCE ITO: Refresh my recollection. What did we use this for?
DEFENSE ATTORNEY: Bruce Weir.
GEORGE CLARKE: It was testi previous testimony of Dr. Weir, used with Dr. Speed. And it was used to clarify the witness's understanding of previous testimony by Dr. Weir.
Judge LANCE ITO: All right. I'm going to sustain the objection. All right, 587.
DEFENSE ATTORNEY: Thank you, Your Honor.
Judge LANCE ITO: Thank you, counsel. I'm sorry, 583 that's been withdrawn, 584's been withdrawn, 587.
GEORGE CLARKE: And yes, Your Honor, we are offering this as a prior inconstate inconsistent statement to impeach Dr. Rieders with respect to
[The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it may not have been proofread against tape.]
The preceding text has been professionally transcribed. However, although the text has been checked against an audio track, in order to meet rigid distribution and transmission deadlines, it has not yet been proofread against videotape.
