Xref: world alt.fan.oj-simpson:45476 alt.fan.oj-simpson.transcripts:208 Newsgroups: alt.fan.oj-simpson.transcripts,alt.fan.oj-simpson Path: world!bloom-beacon.mit.edu!news.moneng.mei.com!howland.reston.ans.net!ix.netcom.com!netcom.com!myra From: myra@netcom.com (Myra Dinnerstein) Subject: SIDEBARS - July 10, 1995 Message-ID: Organization: NETCOM On-line Communication Services (408 261-4700 guest) Date: Fri, 21 Jul 1995 18:18:34 GMT Approved: myra@netcom.com Lines: 172 Sender: myra@netcom7.netcom.com Sidebars from July 10, 1995 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: WE ARE OVER AT THE SIDE BAR, MR. COCHRAN. MR. COCHRAN: I PROMISED I WOULD APPROACH THE BENCH BEFORE I TALKED ABOUT THE LETTER OR WHATEVER AND WHAT I WANTED TO DO IS BEFORE I MENTION THAT I WANT TO HAVE A 402 HEARING ON THAT ASPECT. BUT THERE IS A COUPLE THINGS I WANTED TO BRING UP BEFORE THE LUNCH HOUR AND THERE -- A COUPLE OF THESE STATEMENTS THAT WILL BE MADE BY HIM ABOUT WATCHING T.V. OR WHATEVER, HE SEES SOMETHING ON THE TELEVISION OR SOMETHING LIKE THAT, I THINK IS STATE OF MIND, SPONTANEOUS UTTERANCES THAT WILL BE EXCEPTIONS TO THE HEARSAY RULE. AND OBVIOUSLY I DON'T WANT TO ARGUE IN FRONT OF THE JURY, SO I WANT TO MENTION THAT TO YOUR HONOR AGAIN. THE COURT: UH-HUH. MR. COCHRAN: SHE WAS GOING TO SAY THAT HER FATHER WAS WATCHING T.V. AND WOULD TALK TO THE T.V. I THINK SHE WOULD INDICATE THAT A COUPLE TIMES HE SAID "HOW CAN ANYBODY SAY I WOULD DO THAT" OR "HOW WOULD ANYBODY THINK I WOULD BE GUILTY" OR SOMETHING LIKE THAT, WORDS TO THAT EFFECT WHEN HE IS TALKING TO THE T.V., SPONTANEOUS UTTERANCES AND STATE OF MIND AND EXCEPTION TO THE HEARSAY RULE AS AN EXAMPLE. AND I WOULD LIKE TO BE ABLE TO MARSHAL THOSE PARTICULAR ACTUAL STATEMENTS. THE COURT: MISS CLARK. MS. CLARK: IT DOESN'T QUALIFY IN ANY WAY, SHAPE OR FORM AS A SPONTANEOUS UTTERANCE. NO. 1, WE ARE NOT TALKING ABOUT A STARTLING EVENT. HE HAS ALREADY BEEN QUESTIONED BY THE POLICE AND KNEW EXACTLY WHAT WAS GOING ON. SELF-SERVING STATEMENT WITH NO INDICIA OF TRUSTWORTHINESS MADE FOR THE BENEFIT OF ALL OF THEM AROUND IN RESPONSE TO THE ACCUSATION ON THE TELEVISION AT THE TIME. THERE IS NOTHING ABOUT THAT THAT QUALIFIES AS A SPONTANEOUS UTTERANCE AND I WOULD REMIND ALSO THE COURT OF ITS OWN RULING PERTAINING TO DENISE BROWN'S RESPONSE THAT HER SISTER WAS MURDERED, THE PEOPLE'S ARGUMENT THAT THAT WAS A STARTLING EVENT, AND SHE HAD NO KNOWLEDGE OF ANYTHING HAVING OCCURRED AT THAT POINT WHEN TOM LANGE MADE THE NOTIFICATION, AND HER IMMEDIATE RESPONSE WAS "HE DID IT, HE DID IT, THAT SON OF A BITCH DID IT." AND NOW WE HAVE A SITUATION THAT IS FAR LESS CREDIBLE IN TERMS OF ITS TRUSTWORTHINESS WHERE SOMEONE HAS ALREADY BEEN OBVIOUSLY QUESTIONED BY THE POLICE, ASKED TO TAKE A POLYGRAPH, ASKED FOR BLOOD TESTS. HE GOES BACK TO HIS HOME AT ROCKINGHAM WHEN THERE IS ALL THE FRIENDS AND FAMILY AROUND THAT HE IS GOING TO NEED TO SUPPORT HIS DEFENSE EFFORT AND HE IS MAKING RESPONSES TO THE TELEVISION NEWS BROADCASTS THAT DON'T QUALIFY AS A STARTLING EVENT, AND HIS UTTERANCES IN RESPONSE THERETO NOT ONLY LACK TRUSTWORTHINESS, BUT THEY ARE NOT -- CAN I BORROW THE EVIDENCE CODE FOR A SECOND? THE COURT: KEEP GOING. MS. CLARK: I JUST NEED THE EVIDENCE CODE FOR A SECOND, YOUR HONOR. I WANTED TO SEE THE SPECIFIC LANGUAGE I WANTED TO READ. MS. CLARK: OKAY. IT HAS TO PURPORT TO "NARRATE, DESCRIBE OR EXPLAIN AN ACT, CONDITION OR EVENT." HIS RESPONSE TO THE NEWSCASTS NEITHER EXPLAINS, NARRATES OR DESCRIBES THE NEWSCASTS, NOR CAN THE NEWSCAST BE TERMED TO BE AN ACT, CONDITION OR EVENT. THESE ARE ALL ONGOING TELEVISION BROADCASTS THAT WERE ON FOR THE ENTIRE DAY. IT ALSO HAS TO BE MADE SPONTANEOUSLY WHILE THE DECLARANT IS UNDER THE STRESS OF EXCITEMENT CAUSED BY THE PERCEPTION. THE PERCEPTION WAS WAY EARLY ON AT THE POLICE STATION, NOT NEWLY DISCOVERED AT THAT POINT. THERE IS NOTHING, NOTHING IN THE MANNER IN WHICH ANY OF THESE EVENTS TRANSPIRED WITH THE DEFENDANT THERE IN THE FAMILY ROOM THAT QUALIFIES UNDER 1240 OF THE EVIDENCE CODE. THE COURT: I TAKE IT WHAT YOU ARE TRYING TO SAY IS BASED UPON THE OFFER OF PROOF THAT THERE IS AN INADEQUATE FOUNDATION? MS. CLARK: NOT JUST AN INADEQUATE FOUNDATION, I'M SAYING THERE CAN NEVER BE ADEQUATE FOUNDATION FOR THE CIRCUMSTANCE UNDER WHICH THE UTTERANCES WERE MADE. THE COURT: PERHAPS NOT NEVER, BUT IT IS CERTAINLY UNLIKELY IS WHAT YOU ARE ARGUING? MS. CLARK: YES. MR. COCHRAN: YOUR HONOR, I THINK THAT COUNSEL -- I WOULD LIKE, AS WE DO THIS 402, TO RENEW THIS, AND I WOULD LIKE TO SPELL OUT WHAT I INDICATED TO THE COURT. I WOULD LIKE AN OPPORTUNITY TO SPELL OUT THESE THINGS. THESE ONLY -- REFERS ONLY TO SPONTANEOUS. I THINK THERE IS A STATE OF MIND EXCEPTION TO THIS. AND THEY MAKE THIS BIG THING ABOUT THE STATE OF MIND. LOOK AT ALL THE TIME THEY SPENT WITH PHILLIPS TALKING ABOUT HE DIDN'T REACT LIKE A MAN WHO JUST HEARD HIS WIFE HAS BEEN KILLED AND EVEN ASKED, "WHAT DO YOU MEAN SHE HAS BEEN KILLED?" AND WE WENT THROUGH ALL THAT. AND NOW -- THE COURT: BUT YOU HAVE ALSO BEEN ALLOWED TO GET IN THROUGH THIS WITNESS THAT HE WAS UPSET, HE WAS DISTRAUGHT AND SHE HAD NEVER HEARD HIM REACT IN THIS WAY EVER BEFORE IN HER LIFE, AND THAT WAS CONTEMPORANEOUS TO THE SAME CONVERSATION WITH THE DETECTIVES IN THE KITCHEN WHERE THE NOTIFICATION WAS MADE. MR. COCHRAN: THAT IS TRUE. THE COURT: YOU HAVE BEEN ALLOWED TO PRESENT YOUR PART OF THAT. MR. COCHRAN: YOU MAY FIND IT RELEVANT. THE COURT: CERTAINLY. MR. COCHRAN: ALL RIGHT. THE COURT: THEN AT THIS THIS POINT, SINCE WE ARE FIVE MINUTES TO THE NOON HOUR -- MR. COCHRAN: YES. THE COURT: -- YOU ARE INDICATING YOU WANT AN OPPORTUNITY TO HAVE A 402 HEARING TO PERHAPS PRESENT SOME ADDITIONAL -- MR. COCHRAN: YES. THE COURT: MY INCLINATION IS TO TELL YOU THAT YOU HAVE AN INADEQUATE FOUNDATION AT THIS POINT BASED UPON THE OFFER OF PROOF. MR. COCHRAN: JERRY UELMEN IS GOING TO HANDLE THE 402 ASPECT OF IT. MS. CLARK: CAN WE TAKE IT UP AT 1:30, YOUR HONOR? THE COURT: PROBABLY. MR. DARDEN: CAN WE HAVE SOME SPECIFIC DISCOVERY AS TO WHAT THE STATEMENT IS SUPPOSED TO BE? THE COURT: WHICH STATEMENT? MR. DARDEN: THE ONE THAT HE CLAIMS WAS SPONTANEOUS. THE COURT: TO THE T.V.? HE IS SAYING, "HOW CAN THEY ACCUSE ME OF THAT?" BLAH, BLAH, BLAH. MR. DARDEN: BLAH, BLAH, BLAH. MR. COCHRAN: HE WANTS A REPORT, YOUR HONOR. THE COURT: BLAH, BLAH, BLAH. MR. COCHRAN: I WILL TRY TO WRITE HIM A REPORT OVER THE LUNCH HOUR. MS. CLARK: MR. GORDON WILL RESPOND TO THE MOTION. I GUESS WE WILL TAKE THAT UP AT 1:30. THE COURT: HAVE YOU GOT ANYTHING ELSE? MR. COCHRAN: VERY LITTLE, IF ANY, BUT THIS WOULD BE WHERE WE SHOULD PROBABLY CONCLUDE, SO I WANT TO DO THE 402 AND TALK TO HER ABOUT THE STATEMENT. IS THAT ALL RIGHT? THE COURT: ALL RIGHT. MS. CLARK: OKAY. MR. SHAPIRO: YOUR HONOR, MAY I ASK YOU SOMETHING OFF THE RECORD, PLEASE? THE COURT: SURE. **** (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:) THE COURT: WE'RE OVER AT THE SIDEBAR. THE ISSUE IS WHETHER OR NOT THERE WAS A GOOD FAITH BELIEF OR CAUSE TO ASK QUESTIONS OF ARNELLE SIMPSON REGARDING THE TRIP WITH PAULA BARBIERI AND THE DEFENDANT TO HAWAII SOMETIME IN '93, '94, AND THE COURT MAKES REFERENCE TO THE TRANSCRIPT AT PAGE 20444 STARTING AT PAGE -- EXCUSE ME -- LINE 24 AND GOING OVER TO 20445 ENDING AT LINE 8. I FIND THERE WAS A GOOD FAITH BASIS FOR ASKING THE QUESTION. MS. CLARK: THANK YOU. MR. SHAPIRO: MAY WE ALSO JUST FOR THE RECORD ASK YOU TO REFER TO MY CROSS-EXAMINATION ON THAT QUESTION? THE COURT: YES. I ALSO LOOKED AT PAGE 30 WHERE I OVERRULED THE OBJECTIONS TO YOUR QUESTIONS. MR. SHAPIRO: THANK YOU. MR. COCHRAN: OFF THE RECORD. (A DISCUSSION WAS HELD AT THE BENCH, NOT REPORTED.)