LOS ANGELES, CALIFORNIA; WEDNESDAY, JANUARY 11, 1995 9:05 A.M.
DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE
APPEARANCES: (APPEARANCES AS HERETOFORE NOTED,
DEPUTY DISTRICT ATTORNEY HANK;
ALSO PRESENT ON BEHALF OF
SOJOURN, MS. PAMELA W. WITHEY,
ATTORNEY-AT-LAW.)
(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.)
(CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)
(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. THE SIMPSON MATTER.
MR. COCHRAN: MAY WE APPROACH, YOUR HONOR, AT THE APPROPRIATE TIME?
THE COURT: AT THE APPROPRIATE TIME?
MR. COCHRAN: WHEN YOU DEEM APPROPRIATE, WE WOULD LIKE TO APPROACH.
THE COURT: ALL RIGHT.
(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)
THE COURT: BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT BEFORE THE COURT WITH HIS COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. BAILEY, MR. UELMEN, THE PEOPLE REPRESENTED BY MS. BODIN AND MR. DARDEN TODAY. AND WE HAVE ON A FIRST — AS OUR FIRST MATTER A MOTION TO QUASH A SUBPOENA DUCES TECUM, AND THAT MOTION WAS FILED BY REPRESENTATIVES OF THE SOJOURN PROGRAM. MS. WITHEY.
MS. WITHEY: PAMELA WITHEY APPEARING FOR SOJOURN. YOUR HONOR, I TRUST THE COURT REVIEWED THE PAPERS AND ALSO THE DISTRICT ATTORNEY’S RESPONSE TO THOSE PAPERS AND —
THE COURT: COUNSEL, WHY DON’T YOU USE THE PODIUM WITH THE MIKE.
MS. WITHEY: YOUR HONOR HAS HAD THE OPPORTUNITY TO REVIEW THE PAPERS AND THE DISTRICT ATTORNEY DID PREPARE A RESPONSE TO THOSE PAPERS WHICH SETS FORTH THE ISSUES THAT WE WOULD LIKE TO HAVE ADDRESSED. SOJOURN WOULD LIKE TO HAVE CERTAIN SPECIFIC FINDINGS MADE; AND IF THOSE FINDINGS ARE MADE, THEN WE FEEL COMFORTABLE WITH PROVIDING WHATEVER DOCUMENTS ARE LEGALLY ALLOWED TO BE PRODUCED. OUR FIRST CONCERN WAS THAT THE TRUSTEE, LOUIS BROWN, BE AUTHORIZED TO INSTRUCT A COUNSELOR OF THE PROGRAM TO PERMIT DISCLOSURE. SOJOURN IS CONCERNED THAT STRICT CONFIDENTIALITY MAY BE MAINTAINED AS SET FORTH IN THE EVIDENCE CODE, AND WE WANT TO MAKE SURE THAT ANY CONFIDENTIAL COMMUNICATIONS NOT BE COMPELLED. HOWEVER, THE CODE SECTION VERY SPECIFICALLY SETS FORTH CERTAIN CONDITIONS UPON WHICH DISCLOSURE MAY BE COMPELLED BY THE COURT. THE SUBPOENA THAT WAS RECEIVED BY THE PROJECT DIRECTOR HAD ATTACHED TO IT A PURPORTED WAIVER EXECUTED BY LOUIS BROWN. SO ONE OF OUR FIRST ISSUES WAS WHETHER OR NOT THE TRUSTEE CAN INSTRUCT THE COUNSELOR OF THE PROGRAM TO PERMIT DISCLOSURE AS IS SET FORTH IN THE EVIDENCE CODE. THE SECOND ISSUE IS WHETHER OR NOT THE WAIVER ITSELF, WHICH WAS ATTACHED, IS SUFFICIENT. THERE WAS AN INITIAL WAIVER THAT WAS ATTACHED TO THE SUBPOENA AND THEN SUBSEQUENTLY A DIFFERENT WAIVER WAS PROVIDED BY THE DISTRICT ATTORNEY’S OFFICE WHICH WAS MORE SPECIFIC AND WHICH ADDRESSES ITSELF SPECIFICALLY TO SOJOURN, WHICH I THINK IS BETTER. AND THIRDLY, IF THE COURT FINDS THAT THE TRUSTEE IS AUTHORIZED TO PERMIT — IS AUTHORIZED TO INSTRUCT THE COUNSELOR TO PERMIT DISCLOSURE AND THE WAIVER IS ADEQUATE TO PERMIT DISCLOSURE, WE WOULD LIKE A FINDING UNDER THE EVIDENCE CODE OF 1037.5, SUBSECTION (C) THAT THE COUNSELOR AND THE PROGRAM MAY NOT CLAIM THE PRIVILEGE. THERE IS, I THINK, I SUBMIT, SOME AMBIGUITY IN THAT PARTICULAR STATUTE. I THINK MS. BODIN AND I AGREE THAT THERE IS TWO PARTS TO THAT SECTION. ONE PART SAYS THAT IF A VICTIM IS ALLEGED TO BE DECEASED, THE COURT MAY HAVE AN IN CAMERA HEARING TO DETERMINE IF THE DISCLOSURE CAN BE COMPELLED. IN ANOTHER SECTION, IT SAYS THAT IF THE HOLDER OF THE PRIVILEGE IS DECEASED, THEN THE COUNSELOR MAY NOT CLAIM THE PRIVILEGE. SO WE’RE WANTING YOUR HONOR TO MAKE A FINDING THAT THE DOCUMENTS ATTACHED TO THE SUBPOENA ARE APPROPRIATE AND THAT THE PRIVILEGE CANNOT BE CLAIMED BY THE COUNSELOR IF THAT IS THE CASE. IF THAT IS THE CASE, THEN THE — THEN DISCLOSURE MAY BE MADE. IN ADDITION TO THAT, WE’RE ASKING FOR A MODIFICATION OF ONE OF THE REQUESTS BECAUSE OF THE DEGREE TO WHICH IT WOULD REQUIRE AN EXTENSIVE SEARCH BY SOJOURN, WHICH IS A NONPROFIT ORGANIZATION AND DOES NOT HAVE THE RESOURCES.
THE COURT: WHAT MODIFICATION ARE YOU ASKING FOR?
MS. WITHEY: ITEM NO. 1 OF THE SUBPOENA ASKS FOR — REQUESTS DOCUMENTS FROM MARCH 1ST, 1977, WHICH IS WHEN SOJOURN BEGAN, TO JUNE 12, 1994. AND THERE ARE APPROXIMATELY 3,000 CALLS A YEAR THAT COME INTO THIS SHELTER. AND SO, THEREFORE, IF YOU DO THE ARITHMETIC, APPROXIMATELY 54,000 DOCUMENTS. NOW, THAT’S WHAT WAS REQUESTED. I DON’T KNOW IF THEY WANT TO MODIFY THIS. I HAD A CONVERSATION WITH MR. DARDEN, WHO INDICATED THEY I BELIEVE DID NOT HAVE ANY OBJECTION TO PROVIDING A REASONABLE COST TO AN EMPLOYEE OF SOJOURN — AND INDEED, IT HAS TO BE AN EMPLOYEE OF SOJOURN BECAUSE WE CAN’T HAVE SOMEONE FROM OUTSIDE OF SOJOURN SEARCHING THROUGH PRIVILEGED DOCUMENTS OBVIOUSLY — BUT EMPLOYEE OF SOJOURN TO GO THROUGH THE RECORDS AND AT A REASONABLE HOURLY RATE — TYPICAL RATE FOR THE ACTUAL EMPLOYEES THERE IS ABOUT $10 AN HOUR — TO GO THROUGH AND SEARCH THE DOCUMENTS FOR WHAT IS REQUESTED. AND WE WOULD BE — WE WOULD DO THAT IN COMPLIANCE WITH A COURT ORDER, ASSUMING THAT THERE WERE CERTAIN FINDINGS WHICH YOUR HONOR MADE WITH REGARD TO THE PRIVILEGE INITIALLY. THERE’S ALSO A REQUEST TO HAVE, IF YOUR HONOR COMPELS DISCLOSURE, A REQUEST FOR AN IN CAMERA HEARING WITH REGARD TO THE NATURE OF THE DOCUMENTS THAT ARE —
THE COURT: PRODUCED?
MS. WITHEY: — AVAILABLE. AND I DO NOT WANT TO — AND I KNOW YOU CAN APPRECIATE WHY I DO NOT WANT TO COMMENT UPON WHAT ARE IN THOSE DOCUMENTS AT THIS TIME, EITHER BEFORE THE JURY IS SEQUESTERED OR BEFORE ANY IN CAMERA HEARING. SO THAT IS OUR POSITION.
THE COURT: ALL RIGHT. THANK YOU. MISS BODIN.
MS. BODIN: THANK YOU.
THE COURT: GOOD MORNING.
MS. BODIN: GOOD MORNING. LYDIA BODIN REPRESENTING THE PEOPLE. COUNSEL HAS SPECIFICALLY ASKED THE COURT TO MAKE FINDINGS WITH REGARD TO WHETHER OR NOT THE PRIVILEGE CAN BE CLAIMED BY SOJOURN; AND I AM GOING TO ASK THE COURT TO MAKE THE FINDING THAT SOJOURN IS NOT WHO IS THE PRIVILEGE HOLDER. UNDER EVIDENCE CODE SECTION 1037.5, IT SPECIFICALLY STATES THAT A DOMESTIC VIOLENCE COUNSELOR CANNOT CLAIM THE PRIVILEGE IF NO HOLDER IS IN EXISTENCE. HOLDER IS FURTHER DEFINED IN EVIDENCE CODE SECTION 1037.5 AS EITHER BEING, ONE, THE VICTIM, OR TWO, THE GUARDIAN OR CONSERVATOR. NEITHER ONE OF THOSE ARE IN EXISTENCE. OBVIOUSLY THE VICTIM IS DECEASED AND THERE IS NO GUARDIAN OR CONSERVATOR. SECONDLY, EVEN ASSUMING THAT THE COURT IS ENTERTAINING THE IDEA THAT SOJOURN CAN CLAIM THE PRIVILEGE, I BELIEVE THAT THE WAIVER THAT HAS BEEN GIVEN BY THE EXECUTOR OF THE ESTATE, LOUIS BROWN, IS SUFFICIENT TO OVERCOME ANY CLAIM OF PRIVILEGE. THE — IT’S INTERESTING BECAUSE A REPRESENTATIVE OF THE ESTATE IS NOT ONE OF THE HOLDERS OF THE PRIVILEGE AND ARGUABLY COULD NOT THEN WAIVE. BUT IF THE COURT RECALLS THAT SECTION, I THINK THE COURT CAN MAKE AN ANALOGY TO THE PRECEDING PRIVILEGE, WHICH IS THE SEXUAL ASSAULT COUNSELOR PRIVILEGE, WHICH INTERESTINGLY ENOUGH, THE DOMESTIC VIOLENCE COUNSELOR PRIVILEGE REFERENCES INTO, ALTHOUGH IT IS SILENT WITH REGARD TO WHETHER OR NOT AN EXECUTOR CAN BE A PRIVILEGE HOLDER AS TO THE DOMESTIC VIOLENCE COUNSELOR PRIVILEGE.
THE COURT: THEN DON’T THE RULES OF STATUTORY CONSTRUCTION REQUIRE THAT I ASSUME THAT SINCE THE LEGISLATURE MENTIONED OR ACKNOWLEDGED THE EXISTENCE OF A SCHEME AND BY ITS ABSENCE IN THIS STATUTE CHOSE NOT TO INCLUDE THAT? I MEAN DON’T I HAVE A ASSUME THAT UNDER THE CODE?
MS. BODIN: THAT IS A CONFUSING STATUTE. COUNSEL ALLUDED TO THAT. I THINK THERE’S SOME CONFUSION BETWEEN 1937.2, WHICH TALKS ABOUT THE PROCEDURE, THE IN CAMERA PROCEDURE, THAT THE COURT MAY FOLLOW ITS OBVIOUS DISCRETION. THE LANGUAGE OF THE STATUTE IS “MAY”. IT’S NOT “SHALL FOLLOW THIS PROCEDURE.” IT’S INTERESTING BECAUSE IN THIS SECTION, IT TALKS ABOUT THE IN CAMERA PROCEEDING. IT CITES NOT THE PROCEDURE FOR THE SEXUAL ASSAULT PRIVILEGE. AND THAT PROCEDURE REQUIRES A BALANCING TEST WHERE YOU TAKE THE PROBATIVE VALUE OF THE INFORMATION CONTAINED IN THE RECORDS AND BALANCE THEM AGAINST THE EFFECT OF THE TREATMENT. THAT ASSUMES A LIVING VICTIM. WE DON’T HAVE A LIVING VICTIM HERE. IT IS CONFUSING, AND I THINK COUNSEL IS CORRECT IN REQUESTING THE COURT TO MAKE CERTAIN FINDINGS. BUT I THINK THAT THE COURT WOULD NOT HAVE TO GET TO MY SECOND AND THIRD ARGUMENTS I THINK MERELY BY THE TERMS OF THE STATUTE. THEY CAN’T CLAIM THE PRIVILEGE AND, THEREFORE, THEY SHOULD TURN OVER THE RECORDS.
THE COURT: ALL RIGHT. MS. BODIN, HOW DO WE HANDLE THE PRACTICAL OBJECTION THAT WE’RE DEALING WITH, POTENTIALLY HAVING TO SORT THROUGH BETWEEN 50- AND 60,000 DOCUMENTS AND AN EMPLOYEE OF SOJOURN IS GOING TO HAVE TO DO THIS, AND WHO IS GOING TO PAY FOR IT.
MS. BODIN: INTERESTINGLY ENOUGH, A BOARD MEMBER OF SOJOURN HAS PUBLICLY MADE A STATEMENT WITH REGARD TO WHEN NICOLE BROWN SIMPSON MADE A CONTACT WITH THE SOJOURN SHELTER NEARING THAT TIME TO RIGHT — I BELIEVE IT WAS THE LATE 1980’S. I THINK THAT THAT WOULD CERTAINLY BE A BEGINNING POINT FOR SOJOURN. THAT’S ALREADY BEEN PUBLICLY IDENTIFIED. SO THEY HAVE A PLACE TO BEGIN.
THE COURT: BUT YOUR SDT ASKS FOR MARCH OF ’77.
MS. BODIN: WE DID. AND WE HAVE AGREED IN OUR DISCUSSIONS WITH COUNSEL TO PAY BASICALLY A MINIMUM WAGE FOR SOMEBODY TO GO THROUGH THOSE RECORDS AND LOOK IF THE COURT DEEMS THAT NECESSARY.
THE COURT: WELL, THEY’RE ASKING FOR 10 BUCKS AN HOUR, WHICH IS MORE THAN TWICE THE MINIMUM WAGE AS IT STANDS TODAY.
MS. BODIN: IT SEEMS TO ME THAT A RECORD CHECK IS A PRETTY SIMPLE THING. I THINK IT SIMPLY COULD BE DESCRIBED TO THE PERSON LOOKING. I THINK THAT COULD BE ACCOMPLISHED FAIRLY RAPIDLY. I’M FAMILIAR WITH WHAT LOGS LOOK LIKE AND DOMESTIC VIOLENCE LOGS LOOK LIKE IN SHELTERS, AND IT’S JUST MERELY LOOKING FOR A NAME. THAT’S ALL IT IS. AND I DON’T THINK IT’S THAT MUCH WORK. I THINK IT’S TIME CONSUMING, BUT IT’S NOT DIFFICULT WORK AND SOMETHING THAT WARRANTS $10 AN HOUR.
THE COURT: WELL, THAT’S WHAT THEY’RE ASKING FOR AND THAT’S WHAT THEY PAY THEIR PEOPLE. SO —
MS. WITHEY: YOUR HONOR, WHAT I DID, I ASKED SOJOURN WHAT THEY PAY, FOR EXAMPLE, A RECEPTIONIST, CLERK OR CLERICAL PEOPLE. WE ARE NOT ARGUING OVER THAT, BUT THAT IS WHAT THEY DO PAY THEM. SO I THOUGHT WE WOULD ASK FOR WHAT THEY ORDINARILY PAY THEIR PAID EMPLOYEES. THERE ARE MANY NON-PAID EMPLOYEES, BUT PAID EMPLOYEES.
THE COURT: ALL RIGHT. ANY OTHER COMMENTS, MS. BODIN?
MS. BODIN: YOUR HONOR, I JUST SPOKE TO MR. DARDEN. WE WOULD BE WILLING TO GO AS HIGH AS $7 OR $8.00. IT’S JUST THAT WE HAVE LIMITED RESOURCES.
MS. WITHEY: THAT’S FINE, YOUR HONOR.
THE COURT: ANY OTHER COMMENT, MS. WITHEY?
MS. WITHEY: NO, YOUR HONOR. I REQUEST THAT YOU MAKE THE SPECIFIC FINDINGS THAT ARE SUPPORTED IN OUR PAPERS.
THE COURT: AT THIS TIME THEN, THE COURT WILL MAKE A FINDING THAT THE TRUSTEE OF THE ESTATE OF NICOLE BROWN SIMPSON, LOUIS BROWN, IS AUTHORIZED TO INSTRUCT THE COUNSELOR IN THE PROGRAM TO PERMIT DISCLOSURE. THE COURT FURTHER MAKES A FINDING THAT THE WAIVER THAT IS ATTACHED TO THE ORIGINAL SUBPOENA DUCES TECUM, WHICH IS EXECUTED BY LOUIS BROWN, IS A WAIVER FOR THE PURPOSES OF DISCLOSING THE INFORMATION SOUGHT BY THE DISTRICT ATTORNEY’S OFFICE, AND THE COURT FINDS THAT THE COUNSELOR AND PROGRAM MAY NOT CLAIM THE PRIVILEGE UNDER THE MANNER IN WHICH THE STATUTE IS INTERPRETED AS ARGUED BY THE PEOPLE. THE COURT WILL FURTHER ORDER THAT ANY DOCUMENTS PRODUCED BY THE SOJOURN PROGRAM WILL BE TRANSMITTED UNDER SEAL TO THIS COURT FOR THE COURT’S IN CAMERA REVIEW AND THAT THE DISTRICT ATTORNEY’S OFFICE REIMBURSE THE SOJOURN PROGRAM FOR THE COST AND EXPENSES OF THE DOCUMENT SEARCH AND PRODUCTION, NOT INCLUDING COUNSEL FEES.
MS. WITHEY: THANKS. NO COUNSEL FEES.
THE COURT: COUNSEL, WHAT I WOULD PROPOSE WE DO THEN IS CALENDAR THE MATTER FOR A PROGRESS REPORT SOMETIME SOON. MS. WITHEY, DO YOU HAVE ANY GUESS AS TO HOW LONG THIS IS GOING TO TAKE?
MS. WITHEY: WELL, YOUR HONOR, MY CLIENTS ARE IN THE BUILDING PURSUANT TO THE SUBPOENA. THEY HAVE BROUGHT CERTAIN DOCUMENTS WITH THEM. THERE ARE OTHER DOCUMENTS OF COURSE THEY NEED TO NOW SEARCH FOR. AND SO THOSE ARE AVAILABLE HERE TODAY. THE ADDITIONAL DOCUMENTS PURSUANT TO THE SEARCH THAT WE’VE DISCUSSED COULD BE — I DON’T KNOW WHAT THE TIME FRAME WOULD BE FOR THEM TO BE ABLE TO GO THROUGH AND SEARCH IT. I WOULD THINK 10 DAYS, WOULD YOU SAY? I DON’T KNOW WHAT YOUR TIME FRAME IS, BUT SAY 15 DAYS.
THE COURT: WE’RE HERE ALL DAY EVERY DAY.
MS. WITHEY: OKAY. GIVE THEM 15 DAYS TO SEARCH FOR THE DOCUMENTS, THE ADDITIONAL DOCUMENTS. WE DO HAVE SOME INITIAL DOCUMENTS WHICH YOUR HONOR CAN REVIEW IN CAMERA TODAY.
THE COURT: ALL RIGHT. MS. WITHEY, WHAT IS THE VOLUME OF THE MATERIAL YOU HAVE TODAY?
MS. WITHEY: VERY SMALL. IT’S VERY EASILY REVIEWED. JUST A COUPLE PAGES.
THE COURT: WOULD YOU HAVE YOUR CLIENT THEN PRODUCE THOSE IN COURT TODAY?
MS. WITHEY: THEY’RE ON ANOTHER FLOOR OF THE DISTRICT ATTORNEY’S OFFICE. I WILL HAVE TO GO GET THEM AND BRING THEM BACK HERE. I CAN DO THAT. MR. DARDEN, IF YOU WOULD.
THE COURT: PERHAPS WE COULD ACCOMPLISH THAT BY A PHONE CALL.
MS. WITHEY: HE’S MAKING ARRANGEMENTS TO HAVE THE WITNESSES BROUGHT UP. I WOULD LIKE TO SPEAK TO THEM BRIEFLY BEFORE SO I CAN ADVISE THEM OF YOUR HONOR’S RULING AND THE NATURE OF THE SITUATION.
THE COURT: THEN IF YOUR CLIENTS ARE HERE, THEN IT WOULD BE MY INCLINATION TO CONDUCT THE IN CAMERA REVIEW THIS MORNING.
MS. WITHEY: THAT’S FINE.
THE COURT: AS SOON AS POSSIBLE.
MS. WITHEY: THAT’S FINE, WITH THE UNDERSTANDING THERE MAY BE ADDITIONAL DOCUMENTS.
THE COURT: MIGHT AS WELL GET THEM OUT OF THE WAY SINCE THEY’RE HERE.
MS. WITHEY: I THINK THAT’S PERFECT. THANK YOU, YOUR HONOR.
THE COURT: ANY OTHER MISCELLANEOUS MATTERS WE NEED TO TAKE UP BEFORE WE — BEFORE THE COURT ADJOURNS FOR THE IN CAMERA REVIEW?
MR. COCHRAN: I WOULD LIKE TO APPROACH AGAIN WITH MR. HODGMAN.
THE COURT: SURE.
(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)
(BRIEF PAUSE.)
(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)
THE COURT: ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. MS. WITHEY, AGAIN, GOOD MORNING.
MS. WITHEY: YES. MY CLIENTS ARE PRESENT WITH THE DOCUMENTS, AND WE REQUEST AN IN CAMERA HEARING AS WE DISCUSSED.
THE COURT: ALL RIGHT. THEN, COUNSEL, WE WILL THEN STAND IN RECESS. THE COURT WILL INVITE COUNSEL FOR THE PROGRAM, THE TWO PROGRAM REPRESENTATIVES — AND COULD WE HAVE THEM PLEASE STAND AND GIVE THEIR NAMES FOR THE RECORD, PLEASE.
MS. HAFNER: HOLLY HAFNER.
MS. NEY: NANCY NEY.
THE COURT: COULD YOU SPELL YOUR NAMES, PLEASE?
MS. HAFNER: H-A-F-N-E-R.
THE COURT: AND HOLLY IS WITH A “Y”?
MS. HAFNER: YES.
MS. NEY: LAST NAME NEY, N-E-Y.
THE COURT: COUNSEL, THEN WE’LL STAND IN RECESS. AND, COUNSEL, WOULD YOU BRING YOU AND YOUR CLIENTS AND THEIR MATERIALS INTO CHAMBERS, PLEASE.
(A CONFERENCE WAS HELD IN CHAMBERS, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)
(PAGES 10530 THROUGH 10541, VOLUME 68A, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)
(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)
THE COURT: ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT WITH COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. BAILEY, MR. UELMEN, PEOPLE REPRESENTED BY MISS BODIN, MR. DARDEN. ALSO PRESENT IS MS. WITHEY ON BEHALF OF SOJOURN. COUNSEL, THE COURT HAS CONDUCTED AN IN CAMERA REVIEW OF TWO DOCUMENTS BROUGHT TO COURT BY THE SOJOURN PROGRAM. I HAVE REVIEWED BOTH DOCUMENTS, AND I FIND THEM TO BE MATERIAL TO THE ISSUES AND FACTS REGARDING THIS CASE; AND I’M GOING TO ORDER THEIR PRODUCTION IN COURT. COUNSEL HAS COMPLIED BY GIVING THE COURT A PHOTOCOPY OF BOTH DOCUMENTS AND EXTENDING TO THE COURT THE ORIGINALS OF THOSE DOCUMENTS. MS. WITHEY, I’M GOING TO ORDER THAT YOU, AS COUNSEL FOR THE PROGRAM, MAINTAIN COPY — PHYSICAL CUSTODY OF THE ORIGINALS. I’M GOING TO DISSEMINATE ONE PHOTOCOPY TO EACH COUNSEL, COUNSEL FOR EACH SIDE, WITH THE FOLLOWING ORDER: THIS IS NOT TO BE PHOTOCOPIED, IT IS NOT TO BE DISSEMINATED IN ANY WAY AND IS NOT TO BE DISCUSSED PUBLICLY EXCEPT FOR ON THE RECORD HERE IN COURT SHOULD THAT BECOME NECESSARY. SOJOURN IS ALSO ORDERED NOT TO DISSEMINATE ANY COPIES OF THIS OR NOT TO PUBLICLY DISCUSS THE CONTENTS OF THIS DOCUMENT UNTIL FURTHER ORDER OF THE COURT. ALL RIGHT. ANY QUESTIONS AS TO THAT ISSUE? ALL RIGHT. LET ME SEE MS. BODIN AND MR. SHAPIRO.
MS. WITHEY: THANK YOU, YOUR HONOR.
(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)
THE COURT: ALL RIGHT. MS. WITHEY, IS THERE ANYTHING ELSE YOU WANT TO DISCUSS WITH THE COURT? OTHERWISE, WE WILL STAND IN RECESS AS TO YOUR MATTERS.
MS. WITHEY: THANK YOU. THERE IS NOTHING ELSE.
THE COURT: THEN YOU AND YOUR CLIENTS ARE EXCUSED.
MS. WITHEY: THANK YOU, YOUR HONOR.
THE COURT: THANK YOU, LADIES.
(BRIEF PAUSE.)
THE COURT: COUNSEL, DO YOU WANT TO TAKE A FEW MOMENTS TO REVIEW THOSE DOCUMENTS AND DISCUSS IT WITH YOUR CLIENT?
MR. SHAPIRO: YES, YOUR HONOR.
THE COURT: ALL RIGHT. WE’LL STAND IN RECESS FOR 15.
(RECESS.)
(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)
THE COURT: ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT WITH MR. SHAPIRO, MR. COCHRAN, MR. BAILEY, MR. UELMEN, PEOPLE REPRESENTED BY MR. GORDON, MS. BODIN AND MR. GOLDBERG. I HAVE TO HAVE A LIST UP HERE OF ALL THE LAWYERS. ALL RIGHT. COUNSEL, THE NEXT MATTER ON THE COURT’S AGENDA FOR THIS MORNING IS THE DEFENSE MOTION IN LIMINE REGARDING 1101(B) TYPE EVIDENCE. MR. UELMEN.
MR. UELMEN: THANK YOU, YOUR HONOR. YOUR HONOR, AT THE OUTSET OF THIS MOTION, SINCE IT WILL INVOLVE THE ADMISSIBILITY OF THE TESTIMONY OF A NUMBER OF WITNESSES WHO WILL POSSIBLY APPEAR TO TESTIFY AT THE TRIAL, WE WOULD LIKE TO ASK THAT THOSE WITNESSES BE EXCLUDED FROM THIS HEARING. WE BELIEVE THERE IS SUBSTANTIAL DANGER OF THE ARGUMENT ON THIS MOTION AFFECTING THEIR TESTIMONY AT TRIAL AND BELIEVE THAT FOR PURPOSES OF A PRETRIAL MOTION, THERE IS NO RIGHT FOR THE WITNESSES TO BE PRESENT WHILE THE ARGUMENT TAKES PLACE.
THE COURT: MR. DARDEN.
MR. DARDEN: YOUR HONOR, THE PEOPLE WOULD OBJECT TO THE EXCLUSION OF ANY MEMBER OF THE BROWN FAMILY. OBVIOUSLY THEY HAVE A VERY SIGNIFICANT INTEREST IN THE OUTCOME OF THIS CASE. THEY HAVE AN INTEREST IN HEARING THE TRUTH AND LEARNING THE CIRCUMSTANCES SURROUNDING AND LEADING TO THE DEATH OF THEIR DAUGHTER AND SISTER. HAVING ALREADY SUFFERED THE DEATH OF A DAUGHTER AND SISTER AT THE HANDS OF THE DEFENDANT, I DOUBT THAT THERE IS ANYTHING THAT WILL OCCUR IN THIS COURT TODAY OR OVER THE NEXT COUPLE OF DAYS THAT CAN AFFECT THEM ANY MORE THAN WHAT HAS ALREADY HAPPENED. FURTHERMORE, THEY’VE ALL BEEN INTERVIEWED FOR THE MOST PART; THAT IS, THOSE THAT ARE GOING TO BE TESTIFYING AT TRIAL. THE INTERVIEWS WERE TAPED. COUNSEL HAS TRANSCRIPTS. I THINK THEIR POSITIONS ARE ALREADY SET IN STONE VIRTUALLY.
THE COURT: ARE THERE ANY — DO YOU INTEND ON CALLING ANY MEMBERS OF THE BROWN FAMILY AS WITNESSES AT TRIAL?
MR. DARDEN: YES, YOUR HONOR. WE INTEND TO CALL JUDITHA BROWN, NICOLE BROWN’S MOTHER, WE INTEND TO CALL DENISE BROWN, AND I DON’T BELIEVE WE WILL BE CALLING ANY OTHER MEMBER OF THE FAMILY AT THIS POINT, NOT IN OUR CASE IN CHIEF.
THE COURT: I SEE ONLY DENISE BROWN IN THE COURTROOM TODAY.
MR. DARDEN: THAT’S CORRECT. MRS. BROWN ISN’T HERE TODAY.
THE COURT: ALL RIGHT. MR. UELMEN.
MR. UELMEN: YOUR HONOR —
MR. DARDEN: I’M SORRY. WE INTEND TO CALL DOMINIQUE BROWN ALSO, AND SHE IS PRESENT.
THE COURT: ALL RIGHT.
MR. UELMEN: WHAT WE’RE HERE TO LITIGATE IS WHETHER MR. SIMPSON COMMITTED THESE MURDERS AND TO PREMISE THE OPPOSITION TO THIS MOTION ON THE ASSUMPTION THAT THAT IS IN FACT — WHAT TOOK PLACE IS UNWARRANTED. WHAT WE’RE CONCERNED ABOUT HERE IS NOT THE INTEREST OF ANY PARTICULAR WITNESS OR FAMILY MEMBER IN THIS CASE, BUT THE INTEREST OF JUSTICE AND THE RIGHT OF THE DEFENDANT TO ENSURE THAT THE WITNESSES WHO ARE TESTIFYING WILL NOT BE INFECTED BY THEIR PRESENCE IN PROCEEDINGS THAT RELATE DIRECTLY TO THE SUBSTANCE OF THEIR TESTIMONY. I MEAN THE WITNESSES WHO MR. DARDEN HAS ENUMERATED ARE THE VERY WITNESSES WHOSE TESTIMONY WE’RE GOING TO BE ARGUING ABOUT IN TERMS OF ITS ADMISSIBILITY. AND I THINK IT’S A LEGITIMATE AND FAIR CONCERN OF ANY DEFENDANT IN A CRIMINAL CASE THAT THOSE WITNESSES NOT BE INFECTED BY, IN EFFECT, LISTENING TO THE ARGUMENTS THAT NORMALLY WOULD TAKE PLACE OUT OF THE HEARING OF ANYONE AT A BENCH CONFERENCE. WHAT A MOTION IN LIMINE IS IS SIMPLY A DEVICE FOR THE CONVENIENCE OF THE COURT TO ADDRESS THESE ISSUES BEFORE WE ACTUALLY START THE PROCESS OF A JURY TRIAL. THESE ARE OBJECTIONS THAT WOULD NORMALLY BE HEARD AT THE BENCH, AND WITNESSES OF ANY SORT WOULD NOT BE PARTY TO LISTEN IN TO THOSE PROCEEDINGS; AND THAT’S THE ONLY CONCERN THAT WE HAVE, THAT THEIR TESTIMONY WILL NOT BE INFECTED.
THE COURT: MR. UELMEN, LET ME ASK YOU THIS: DO YOU HAVE ANY STATUTORY OR CASE LAW AUTHORITY FOR THE PROPOSITION THAT THE COURT SHOULD OR CAN EXCLUDE INTERESTED MEMBERS OF THE PUBLIC FOR THE PURPOSES OF THIS TYPE OF IN LIMINE MOTION HEARING?
MR. UELMEN: WELL, YES, YOUR HONOR. WE WOULD RELY, FIRST OF ALL, ON 1102.6 I BELIEVE OF THE PENAL CODE, WHICH ADDRESSES SPECIFICALLY THE RIGHT OF VICTIMS TO BE PRESENT DURING A TRIAL, ASSUMING THAT THIS IS PART OF THE TRIAL. WE DO HAVE AN ON-GOING TRIAL HERE. AND THAT STATUTE DEFINES “VICTIMS” TO INCLUDE MEMBERS OF THE IMMEDIATE FAMILY AND ALLOWS THE DEFENSE TO INSIST THAT THEY WILL BE CALLED AS THE FIRST WITNESSES BEFORE ANY OTHER TESTIMONY IS HEARD. SO THAT IS A STATUTORY ATTEMPT TO ACCOMMODATE THE CONCERN THAT WE’RE EXPRESSING ABOUT WITNESSES HEARING TESTIMONY OF THOSE BEFORE THEM BEFORE THEY ARE PERMITTED TO TESTIFY, AND THEN OF COURSE WITHIN THE EVIDENCE CODE ITSELF, I BELIEVE IT IS SECTION 3 —
THE COURT: MAYBE 777?
MR. UELMEN: 777. YES, YOUR HONOR. — WITH RESPECT TO THE EXCLUSION OF WITNESSES.
THE COURT: ALL RIGHT. MR. DARDEN, ANY RESPONSE TO THAT?
MR. DARDEN: YOUR HONOR, THE COURT HAS DISCRETION, I THINK, TO EXCLUDE WITNESSES OR TO ALLOW WITNESSES TO REMAIN, TO REMAIN IN COURT. AND I’M SURE THE COURT IS AWARE ALSO OF A RECENT CONSTITUTIONAL AMENDMENT TO THE PENAL CODE THAT GRANTS VICTIMS OF VIOLENT CRIME THE SAME RIGHTS AS DEFENDANTS AS IT RELATES TO THEIR RIGHTS TO BE PRESENT IN COURT. I THINK IT WOULD BE A GRAVE INJUSTICE, AN INSULT TO THE FAMILY TO EXCLUDE THEM FROM THIS HEARING OR ANY HEARING OR ANY PORTION OF THE TRIAL IN THIS MATTER. THEY HAVE A VESTED INTEREST AND EXTREME INTEREST IN THESE PROCEEDINGS AND THEY SHOULD BE ALLOWED TO STAY. WHO HAS A GREATER INTEREST? WHO HAS SUFFERED A GREATER LOSS THAN THE GOLDMAN FAMILY AND THE BROWN FAMILY? THE COURT HAS DISCRETION, AND WE WOULD URGE THE COURT TO ALLOW THE BROWN FAMILY TO REMAIN DURING THESE PROCEEDINGS.
MR. UELMEN: YOUR HONOR, I WANT TO OBJECT TO THE CHARACTERIZATION OF THIS MOTION AS INSULT TO ANY WITNESS. THIS IS A RULE THAT APPLIES TO EVERY WITNESS REGARDLESS OF WHAT INTEREST THEY HAVE IN THE CASE, AND IT IS NOT AN INSULT TO THAT WITNESS TO TELL THEM THAT THEY MAY NOT APPEAR IN THE COURTROOM UNTIL THEY HAVE TESTIFIED. THAT IS A STANDARD RULE TO PROTECT THE INTEGRITY OF THE PROCEEDINGS AND THE INTEGRITY OF THE TESTIMONY OF EVERY WITNESS, REGARDLESS OF WHAT INTEREST THEY HAVE IN THE CASE.
MR. DARDEN: WELL, IT IS AN INSULT. I’M OFFENDED BY IT AND I’M SURE THE VICTIMS’ FAMILIES ARE OFFENDED BY THE REQUEST. THERE IS NO PREJUDICE THAT CAN ACCRUE TO THIS DEFENDANT BY HAVING THESE WITNESSES, THESE VICTIMS, THESE FAMILY MEMBERS REMAIN IN COURT DURING THESE PROCEEDINGS. THERE’S NO GOOD REASON TO EXCLUDE THEM.
THE COURT: ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. EVIDENCE CODE SECTION 777 ALLOWS THE COURT TO EXCLUDE FROM THE COURTROOM ANY WITNESS NOT AT THE TIME UNDER EXAMINATION SO THAT SUCH WITNESS DOES NOT HEAR THE TESTIMONY OF OTHER WITNESSES. EXCLUSION OF WITNESSES PERTAINS TO THE ACTUAL TAKING OF TESTIMONY AND NOT ARGUMENT. THE MOTION TO EXCLUDE WILL BE DENIED AT THIS TIME. ALL RIGHT. MR. UELMEN.
MR. UELMEN: THANK YOU, YOUR HONOR. WHILE, AS YOUR HONOR IS CERTAINLY WELL AWARE, THIS IS A MOTION THAT COVERS A GOOD DEAL OF POTENTIAL TESTIMONY AND EVIDENCE AT THIS TRIAL, I THINK THERE ARE A NUMBER OF OVERRIDING GENERAL PRINCIPLES AND POLICIES, ESPECIALLY RELATED TO THE ADMISSIBILITY OF CHARACTER EVIDENCE, RELATED TO THE ADMISSIBILITY OF EVIDENCE OF EXPERTS, RELATED TO PARTICULAR SYNDROMES AND RELATED TO THE HEARSAY RULE AND ITS EXCEPTIONS THAT WILL HELP US CUT THROUGH MANY OF THE INDIVIDUAL INCIDENTS AND PERHAPS SET SOME GENERAL GUIDELINES THAT WILL ASSIST THE COURT IN ADDRESSING ALL OF THIS EVIDENCE. AS I READ THE PEOPLE’S RESPONSE TO THE DEFENDANT’S MOTION IN LIMINE, IT REMINDED ME OF MY OWN BRIEF BUT STELLAR CAREER AS A PROSECUTOR. I WAS ASSIGNED TO THE ORGANIZED CRIME DIVISION OF THE OFFICE, AND THAT IS WHERE I FIRST ENCOUNTERED THE POWER OF THE LABELS THAT WE PUT ON CRIMINAL CASES. WE ACTUALLY HAD A RUBBER STAMP THAT WE WOULD STAMP ON THE FILES “ORGANIZED CRIME DIVISION” IN THREE-INCH LETTERS. AND WHEN WE MARKED A NEW CARD, WE WERE VERY CAREFUL TO MAKE SURE THAT THAT WAS EXPOSED SO THAT EVERYBODY KNEW THIS WAS AN ORGANIZED CRIME CASE. AND IT TRANSFORMED THE PROCEEDINGS. THE DEFENDANT SUDDENLY BECAME MORE SINISTER. THE DEFENSE LAWYERS BECAME MORE MENACING. AND PROSECUTORS OF COURSE ARE WELL AWARE OF THE POWER OF LABELS. TODAY OF COURSE, WE DON’T NECESSARILY RELY ON RUBBER STAMPS. WE HAVE 35-INCH VIDEO SCREENS TO PUT LABELS ON CASES. BUT THE LABEL THAT THE PROSECUTION WANTS TO PUT ON THIS CASE IS ANNOUNCED IN THEIR RESPONSE TO THE MOTION AT PAGE 3 WHEN THEY SAY IN SHORT, “THIS IS A DOMESTIC VIOLENCE CASE INVOLVING MURDER, NOT A MURDER CASE INVOLVING DOMESTIC VIOLENCE.” AND BY ATTACHING THAT LABEL, BY SAYING THIS CASE IS A DOMESTIC VIOLENCE CASE, THEY SEEK TO TRANSFORM THESE PROCEEDINGS FROM AN INQUIRY INTO WHO KILLED NICOLE BROWN SIMPSON AND RONALD GOLDMAN ON JUNE 12TH, 1994 INTO A GENERAL INQUIRY INTO THE CHARACTER OF O.J. SIMPSON IN WHICH HE WILL BE CALLED UPON TO EXPLAIN EVERY ASPECT OF HIS LIFE FOR 17 YEARS. AND THERE IS A FUNDAMENTAL PROBLEM WITH WHAT THE PROSECUTION IS TRYING TO DO HERE. I THINK THAT PROBLEM WAS SUMMONED UP BY WHAT JUDGE MEDKA (PHONETIC), NOW WHITE HOUSE COUNSEL, STATED IN THE CASE OF UNITED STATES VERSUS BAESKE WHEN HE SERVED ON THE DISTRICT OF COLOMBIA COURT OF APPEALS IN 1980. HE SAID:
“IT IS FUNDAMENTAL TO AMERICAN JURISPRUDENCE THAT A DEFENDANT MUST BE TRIED FOR WHAT HE DID, NOT FOR WHO HE IS.” NOW, WE HAVE AN UNUSUAL DEFENDANT IN THIS CASE IN TERMS OF A DEFENDANT BEGINNING WITH A RESERVOIR OF PUBLIC REGARD, A GOOD REPUTATION, AND WE’VE SEEN THE IMPACT OF A PUBLIC CAMPAIGN TO CHANGE THAT. WHAT WE ARE CONCERNED ABOUT IS THAT CAMPAIGN BEING BROUGHT INTO THIS COURTROOM UNDER THE GUISE OF EVIDENCE OF BAD CHARACTER. AND THE CALIFORNIA EVIDENCE CODE ADHERES TO SOME VERY IMPORTANT GENERAL RULES TO EFFECTUATE THAT GENERAL PRINCIPAL THAT SOMEONE SHOULD BE TRIED FOR WHAT HE DID RATHER THAN WHO HE IS; AND THAT RULE QUITE SIMPLY PROVIDES THAT A DEFENDANT CANNOT BE CONVICTED BY SHOWING HIS BAD CHARACTER OR PROTENSITY TO COMMIT CRIME. THAT IS OF COURSE EMBODIED IN SECTION 1101(A) OF THE EVIDENCE CODE, WHICH PROVIDES:
“EXCEPT AS PROVIDED IN THIS SECTION AND SECTIONS 1102 AND 1103, EVIDENCE OF A PERSON’S CHARACTER OR A TRAIT OF HIS OR HER CHARACTER, WHETHER IN THE FORM OF AN OPINION, EVIDENCE OF REPUTATION OR EVIDENCE OF SPECIFIC INSTANCES OF HIS OR HER CONDUCT IS INADMISSIBLE WHEN OFFERED TO PROVE HIS OR HER CONDUCT ON A SPECIFIED OCCASION.” NOW, IT’S IMPORTANT I THINK TO NOTE WHERE IN THE EVIDENCE CODE SECTION 1101 APPEARS. IT APPEARS IN PROVISION 9, WHICH IS HEADED, “EVIDENCE AFFECTED OR EXCLUDED BY INTRINSIC POLICIES.” THIS EVIDENCE IS KEPT OUT NOT BECAUSE IT’S STRICTLY IRRELEVANT, THAT IT WOULD OFFER NO ASSISTANCE TO THE RESOLUTION OF FACTUAL ISSUES. IN FACT, WE’RE TOLD IN THE SAME PROVISIONS OF THE EVIDENCE CODE THAT THE DEFENDANT, IF HE CHOOSES, CAN PRESENT EVIDENCE OF GOOD CHARACTER. AND AS YOUR HONOR IS AWARE, A STANDARD JURY INSTRUCTION INFORMS THE JURY THAT EVIDENCE OF GOOD CHARACTER ITSELF CAN RAISE A REASONABLE DOUBT. SO IT’S NOT THAT CHARACTER EVIDENCE BY ITSELF HAS NO RELEVANCE WHATSOEVER. THE REASON FOR THIS RULE OF EXCLUSION IS BECAUSE THIS EVIDENCE IS SO LIKELY TO BE MISUSED, TO BE USED FOR THE WRONG PURPOSE, TO BE GIVEN GREATER WEIGHT THAN IT TRULY DESERVES. SO AT THE OUTSET, I THINK IT’S HELPFUL TO ASK WHAT ARE THE INTRINSIC POLICIES THAT ARE SERVED BY SECTION 1101(A) AND ITS EXCLUSIONARY RULE. AND THE BEST SUMMARY I GUESS OF THE INTRINSIC POLICIES THAT UNDERLAY SECTION 1101 WAS OFFERED BY JUSTICE FRANK RICHARDSON OF THE CALIFORNIA SUPREME COURT, WHO HAS A WELL-DESERVED REPUTATION FOR GETTING RIGHT TO THE POINT WITH PRECISION, AND HE CERTAINLY DID SO IN THE CASE OF PEOPLE VERSUS THOMAS, 20 CAL. 3D 457 AT 464. HERE’S WHAT HE SAID ABOUT THE POLICIES THAT UNDERLAY SECTION 1101:
“AS WE EXPLAINED IN CRAMER AND KELLY, THE PURPOSES OF THE FOREGOING EXCLUSIONARY RULE ARE THREEFOLD.
“ONE, TO AVOID PLACING THE ACCUSED IN A POSITION IN WHICH HE MUST DEFEND AGAINST UNCHARGED OFFENSES.
“SECONDLY, TO GUARD AGAINST THE PROBABILITY THAT EVIDENCE OF SUCH UNCHARGED ACTS WOULD PREJUDICE DEFENDANT IN THE MINDS OF THE JURORS;
“AND THIRD, TO PROMOTE JUDICIAL EFFICIENCY BY RESTRICTING PROOF OF EXTRANEOUS CRIMES.” IN BRIEF, HE CONCLUDED:
“ALTHOUGH DEFENDANT’S PRIOR CRIMINAL ACTS MAY DEMONSTRATE HIS BAD CHARACTER AND HIS PROPENSITY OR DISPOSITION TO COMMIT THE CRIME CHARGED, A DEFENDANT IS NOT TO BE CONVICTED BECAUSE THE PROSECUTION CAN PROVE ON HIS PRIOR RECORD THAT HE IS A BAD MAN.” NOW, EACH OF THESE POLICIES THAT JUSTICE RICHARDSON ENUMERATED IS OF PARTICULAR RELEVANCE TO THIS MOTION AND THIS CASE. FIRST OF ALL, THE PROBLEM OF PUTTING THE ACCUSED IN THE POSITION OF HAVING TO DEFEND AGAINST UNCHARGED CONDUCT. NOW, BY THE INFORMATION FILED IN THIS CASE AFTER THE PRELIMINARY HEARING IN JUNE, MR. SIMPSON WAS PUT ON NOTICE THAT HE WOULD HAVE TO DEFEND AGAINST A CHARGE THAT HE MURDERED NICOLE BROWN SIMPSON AND RONALD GOLDMAN ON JUNE 12TH, 1994. NEARLY EACH WEEK SINCE THEN, THE BREATH OF THE CASE HAS EXPANDED CALLS UPON MR. SIMPSON TO SEARCH FOR EVIDENCE TO EXPLAIN EVENTS THAT TOOK PLACE MANY YEARS AGO. AND JUST ON MONDAY OF THIS WEEK, THE PROSECUTORS FILED AN ADDENDUM TO THEIR RESPONSE TO THIS MOTION SUGGESTING THEY WOULD OFFER EVIDENCE OF NEIGHBORS WHO LIVED IN AN APARTMENT NEXT DOOR TO MR. SIMPSON IN 1977, 1978, AND WHO HEARD LOUD ARGUMENTS. WE WERE TOLD THAT MR. SIMPSON WOULD HAVE TO EXPLAIN THE REPORT OF A FOOTBALL FAN WHO CLAIMS THAT HE SAW MR. SIMPSON ON THE BEACH IN 1986 OR 1987 STRIKING A FEMALE COMPANION. NOW, TRY TO IMAGINE WHAT IT IS LIKE TO BE ON TRIAL IN A CASE LIKE THIS WHERE THE CHARGES GROW AS FAST AS THE TABLOIDS CAN SUPPLY NEW FODDER. IT IS TRULY KAFKAESQUE. YOUR HONOR COMPILED A LIST WITH A TOTAL OF 59 SEPARATE ITEMS WHICH ARE NOW IN ISSUE, AND THE LIST KEEPS GROWING, AND THAT’S A CONCERN. IT’S A CONCERN TO ANY DEFENDANT AND IT’S A CONCERN ADDRESSED BY SECTION 1101 WHEN, AS JUSTICE RICHARDSON PUT IT, WE NEED TO BE CONCERNED ABOUT PUTTING THE ACCUSED IN THE POSITION OF HAVING TO DEFEND AGAINST CONDUCT WHICH IS NOT CHARGED, WHICH IS SIMPLY BEING ADDED TO THE CHARGES. AND I THINK IT’S QUITE IRONIC THAT MUCH OF THE CONDUCT THAT WE’RE GOING TO BE TALKING ABOUT COULDN’T BE CHARGED EVEN IF THE PROSECUTION WANTED TO BECAUSE THE STATUTE OF LIMITATIONS HAS LONG ELAPSED, AND IT’S IRONIC THAT THIS CAN BE DRAGGED IN AS KIND OF A CABOOSE TO A SEPARATE TRIAL RELATING TO CHARGED CONDUCT. THE SECOND POLICY THAT JUSTICE RICHARDSON MENTIONED IS TO GUARD AGAINST THE PROBABILITY OF PREJUDICE. AND THE POSSIBILITY OF PREJUDICE IN THIS CASE IS NOT ONLY REAL; IT IS MEASURABLE. I THINK THE MOST SOPHISTICATED EFFECT OR EFFORT TO MEASURE THE POTENTIAL PREJUDICE OF THIS KIND OF EVIDENCE WAS THE CLASSIC STUDY OF JURY BEHAVIOR BY PROFESSORS CALVIN AND SIDEL, IN WHICH AFTER STUDYING A WHOLE SPECTRUM OF JURY TRIALS, THEY CONCLUDED THAT THE RATE OF ACQUITTAL BY JURIES DROPPED FROM 42 PERCENT TO 25 PERCENT SIMPLY UPON LEARNING THAT THE DEFENDANT HAD A PRIOR CRIMINAL RECORD. I THINK YOU CAN ALSO JUST LOOK AT THE IMPACT ON THE PUBLIC OPINION POLLS IN TERMS OF THE PUBLIC PERCEPTION OF MR. SIMPSON’S GUILT BEFORE AND AFTER THE RELEASE OF THE 911 TAPES BACK IN JUNE AND JULY, A VERY MEASURABLE PERCEPTIBLE EFFECT SHOWING THAT THE IMPACT THAT THIS KIND OF EVIDENCE HAS IS FAR IN EXCESS OF THE WEIGHT THAT IT SHOULD BE ACCORDED. IN THE MOST RECENT EFFORT TO ADDRESS THE MYRIAD OF ISSUES RELATED TO THE ADMISSION OF THIS KIND OF EVIDENCE, PEOPLE VERSUS EWOLDT, DECIDED IN FEBRUARY OF LAST YEAR BY THE CALIFORNIA SUPREME COURT, JUSTICE GEORGE NOTED THE SPECIAL DANGER OF PREJUDICE WHERE THE PRIOR CONDUCT WAS NOT THE SUBJECT OF A CRIMINAL CONVICTION. AND I THINK IT’S WORTH NOTING THAT ONLY ONE OF THE PRIOR INCIDENTS THAT THE PROSECUTION WILL SEEK TO UTILIZE IN THIS CASE ACTUALLY WAS LITIGATED AND ENDED IN A CONVICTION BASED ON MR. SIMPSON’S PLEA OF NO CONTEST. JUSTICE GEORGE POINTED OUT IN EWOLDT:
“THE PREJUDICIAL EFFECT OF THIS EVIDENCE IS HEIGHTENED BY THE CIRCUMSTANCE THAT DEFENDANT’S UNCHARGED ACTS DID NOT RESULT IN CRIMINAL CONVICTIONS.
“THIS CIRCUMSTANCE INCREASED THE DANGER THAT THE JURY MIGHT HAVE BEEN INCLINED TO PUNISH THE DEFENDANT FOR UNCHARGED OFFENSES REGARDLESS OF WHETHER IT CONSIDERED HIM GUILTY OF THE CHARGED OFFENSE AND INCREASED LIKELIHOOD OF CONFUSING THE ISSUES BECAUSE THE JURY HAD TO DETERMINE WHETHER THE UNCHARGED OFFENSES HAD IN FACT OCCURRED.” THE THIRD POLICY THAT JUSTICE RICHARDSON LAID OUT FOR US WAS THE PROMOTION OF JUDICIAL EFFICIENCY BY RESTRICTING THE PROOF OF EXTRANEOUS CRIMES. EACH OF THE INDIVIDUAL INCIDENTS THAT WE’RE GOING TO BE TALKING ABOUT IN THE COURSE OF THIS MOTION WILL REQUIRE A MINI TRIAL IN ITSELF. I CAN ASSURE THE COURT THAT THERE ARE TWO SIDES TO EVERY ONE OF THESE ALLEGED INCIDENTS. THE CREDIBILITY OF THE WITNESSES WHO ARE PRESENTING THESE INCIDENTS WILL ITSELF BE SUBJECT TO CHALLENGE. IN MANY CASES, THE WITNESSES HAVE ALREADY EXHIBITED BIAS BY PUBLICLY ANNOUNCING THEIR OWN CONCLUSIONS WITH RESPECT TO THE GUILT OR INNOCENCE OF THE DEFENDANT. MEMORIES ABOUT THESE INCIDENTS WILL DIFFER WIDELY AS WE REACH FURTHER BACK, IN SOME CASES, TO EVENTS 17 YEARS AGO; AND THE ADMISSIBILITY OF THIS EVIDENCE WILL FREQUENTLY RAISE A 403 QUESTION UNDER THE EVIDENCE CODE, A PRELIMINARY ISSUE OF FACT THAT RELATES TO THE RELEVANCY OF THE EVIDENCE REQUIRING THE COURT TO ACTUALLY MAKE A DETERMINATION IN ADVANCE WITH RESPECT TO THE RELEVANCY OF THE EVIDENCE AND THEN INSTRUCTING THE JURY THAT THEY NEED TO DISREGARD IT IF THEY FIND THAT IN FACT THESE INCIDENTS DID NOT OCCUR. AND THERE WILL BE VERY COMPLEX JURY INSTRUCTIONS REQUIRED WITH RESPECT TO EACH OF THESE INCIDENTS. SO CERTAINLY THE PROMOTION OF JUDICIAL EFFICIENCY WILL BE FURNISHED BY RESTRICTING PROOF OF EXTRANEOUS CRIMES AND DEMANDING THAT THIS CASE REALLY FOCUS ON THE EVENTS OF WHAT ACTUALLY HAPPENED ON JUNE 12TH RATHER THAN REACHING BACK. NOW, THERE ARE OF COURSE FOUR VERY CAREFULLY LIMITED EXCEPTIONS TO SECTION 1101(A), AND THREE OF THOSE EXCEPTIONS ARE WHERE THE DEFENDANT HIMSELF CHOOSES HIMSELF TO PUT CHARACTER IN ISSUE. FOR EXAMPLE, IF THE DEFENDANT CHOOSES TO OFFER EVIDENCE OF GOOD CHARACTER, THAT EVIDENCE CAN OF COURSE BE REBUTTED BY THE PROSECUTION UNDER SECTION 1102 AND THEY CAN PRESENT EVIDENCE OF BAD CHARACTER RELATING TO THE SAME TRAITS OF CHARACTER. SECONDLY, IF A DEFENDANT OFFERS EVIDENCE OF THE VIOLENT CHARACTER OF A VICTIM IN ORDER TO SUSTAIN A CLAIM OF SELF-DEFENSE, THE PROSECUTION CAN THEN PUT IN ISSUE THE DEFENDANT’S OWN REPUTATION FOR VIOLENCE. BUT AGAIN, IT’S BECAUSE THE DEFENDANT HAS OPENED THE DOOR BY CHALLENGING THE CHARACTER OF THE VICTIM. HE THEN INVITES A CHALLENGE TO HIS OWN CHARACTER. AND THAT OF COURSE WILL NOT TAKE PLACE IN THIS TRIAL. THIRDLY, IF THE DEFENDANT TESTIFIES, THE DEFENDANT OF COURSE PUTS HIS OWN CHARACTER FOR TRUTH AND VERACITY IN ISSUE. HE CAN BE IMPEACHED THE SAME AS ANY OTHER WITNESS UNDER SECTION 780 OF THE EVIDENCE CODE, AND EVIDENCE THAT REBUTS HIS FACTUAL ALLEGATIONS IN THE COURSE OF HIS TESTIMONY MAY BE PRESENTED IN REBUTTAL. FINALLY — AND THIS IS THE CATEGORY OF EXCEPTION THAT I THINK WE WILL BE FOCUSING OUR ATTENTION ON TODAY — IF THE EVIDENCE OF CHARACTER OF SPECIFIC INSTANCES, SPECIFIC ACTS IS RELEVANT TO PROVE A FACT OTHER THAN PROPENSITY BASED ON THE SIMILARITY OF THE ACT, THAT BECAUSE THE PRIOR ACT IS SIMILAR TO THE CRIME THAT WE ARE LITIGATING IN THIS CASE, WE CAN INFER THAT BOTH ACTS WERE DONE WITH THE SAME MOTIVE OR BOTH ACTS WERE DONE WITH THE SAME INTENT OR INDEED BOTH ACTS WERE DONE BY THE SAME PERSON TO SHOW IDENTITY, THEN THE ACT MAY BE RELEVANT FOR A PURPOSE OTHER THAN PROPENSITY. AND THAT OF COURSE IS THE EXCEPTION LAID OUT IN SECTION 1101(B). NOW, THE PROSECUTION — AND I THINK THIS IS A THRESHOLD ISSUE THAT YOUR HONOR MAY NEED TO CUT THROUGH IN TERMS OF DEALING WITH THE ISSUES RAISED BY THIS MOTION — IS SEEKING TO ADD A FIFTH EXCEPTION TO THE FOUR THAT WE FIND IN THE EVIDENCE CODE IN SECTION 1102, 1103, 780 AND 1101(B). AND I THINK IT’S IMPORTANT TO NOTE THAT THIS FIFTH EXCEPTION IS NOT FOUND IN THE EVIDENCE CODE. NOWHERE IN THE EVIDENCE CODE IS THERE ANY REFERENCES TO DOMESTIC VIOLENCE CASES OR RELATIONSHIP VIOLENCE CASES OR ANY SUGGESTION THAT A SPECIAL RULE OR A SEPARATE MODE OF ANALYSIS APPLIES TO ANY SUCH CASE. AND THEY BASE THIS ASSERTION ON DICTA IN A SINGLE COURT OF APPEAL OPINION, PEOPLE VERSUS ZACK, WHICH IS THE ONLY AUTHORITY THEY CAN FIND TO JUSTIFY THIS ASSERTION THAT SOMEHOW, RELATIONSHIP VIOLENCE CASES ARE TO BE TREATED DIFFERENTLY THAN ANY OTHER CASES AND THAT ALL PRIOR INCIDENTS BECOME ADMISSIBLE IN A RELATIONSHIP VIOLENCE CASE. PEOPLE VERSUS ZACK REALLY DOES NOT STAND FOR THAT EXCEPTION. OUR CONTENTION IS THAT IT’S NOT CREATING A NEW EXCEPTION AT ALL, BUT SIMPLY APPLYING AN OLD ONE. AND THE OLD EXCEPTION THAT IT’S APPLYING IS THAT WHEN A DEFENDANT TESTIFIES AND PUTS HIS CHARACTER IN ISSUE THROUGH HIS OWN TESTIMONY, RATHER THAN PRESENT A FALSE AURA OF THE RELATIONSHIP THROUGH HIS TESTIMONY, THE PEOPLE CAN REBUT THAT TESTIMONY AND SHOW THE PRIOR ACTS THAT COUNTER THE DEFENDANT’S ATTEMPT TO CHARACTERIZE THE RELATIONSHIP IN A PARTICULAR WAY. THE KEY FACTOR I THINK IN PEOPLE VERSUS ZACK IS THAT THE DEFENDANT TESTIFIED IN ZACK AND THAT THIS EVIDENCE WAS THEN OFFERED TO REBUT HIS TESTIMONY AFTER THAT TESTIMONY WAS PRESENTED. I THINK ZACK ALSO PRESENTS AN EXAMPLE OF THE TRADITIONAL EXCEPTIONS LAID OUT IN SECTION 1101(B) IN TERMS OF THE REMARKABLE SIMILARITY BETWEEN THE PRIOR ABUSIVE INCIDENTS, ALL OF WHICH OCCURRED WITHIN THREE OR FOUR YEARS OF THE MURDER AND THE MURDER ITSELF. THE COURT POINTED OUT:
“GIVEN THE BRUTAL AND UNIQUE NATURE OF THE MURDER, APPELLANT’S PRIOR ASSAULTS OF NECESSITY COULD NOT SURVIVE A DISTINCTIVE MODUS OPERANDI ANALYSIS.” THE DISTINCTIVE BRUTAL AND UNIQUE NATURE OF THE MURDER IN ZACK WAS THAT THE VICTIM WAS LITERALLY BEATEN TO DEATH. BOTH OF HER ANKLES WERE BROKEN. SO OF COURSE, PRIOR ASSAULTIVE BEHAVIOR MAY HAVE HAD SOME RELEVANCE WITH RESPECT TO THE CHARGE BROUGHT AGAINST THE DEFENDANT IN THAT CASE. THE REAL PROBLEM FOR THE PROSECUTION IN THIS CASE IS THE TOTAL LACK OF ANY SIMILARITY BETWEEN THE PRIOR ALLEGED ACTS AND THE CIRCUMSTANCES OF THIS CRIME. LABELING THAT A DOMESTIC VIOLENCE CASE OR LABELING IT AS A RELATIONSHIP VIOLENCE CASE REQUIRES A NEW DEFINITION. IT REQUIRES US TO SAY, ANY TIME ANY VICTIM OF A MURDER HAD A PRIOR RELATIONSHIP, THEN ALL OF THE EVIDENCE REGARDING THAT PRIOR RELATIONSHIP CAN BE BROUGHT IN IF THE PARTY TO THAT RELATIONSHIP IS CHARGED WITH THE MURDER. THAT’S AN INCREDIBLY BROAD PROPOSITION. NONE OF THE TRADITIONAL EARMARKS OF A DOMESTIC VIOLENCE OR A RELATIONSHIP VIOLENCE HOMICIDE ARE PRESENT HERE. HOW MANY DOMESTIC VIOLENCE OR RELATIONSHIP VIOLENCE CASES INVOLVE MULTIPLE VICTIMS? HOW MANY INVOLVE THE COMMISSION OF A MURDER WITH THE USE OF A KNIFE? HOW MANY INVOLVE A COMPLETE SILENCE PRECEDING THE MURDER, SUGGESTING THAT THE MURDER WAS COMMITTED BY STEALTH RATHER THAN BEING PRECEDED BY ANY SORT OF VIOLENT CONFRONTATION OR ARGUMENT? IN FACT, IF WE HAD TO PUT A LABEL ON THIS CASE BASED ON THESE FACTORS, THE LABEL WE WOULD PUT ON IT IS THAT IT BEARS ALL OF THE EARMARKS OF A DRUG-RELATED HOMICIDE IN WHICH THE FREQUENCY OF MULTIPLE VICTIMS, THE USE OF KNIVES, THE USE OF STEALTH IS MUCH MORE FREQUENT THAN IT IS IN THE CASE OF DOMESTIC VIOLENCE. NOW, IF WE TAKE THESE PRIOR INCIDENTS ONE AT A TIME — AND WE CERTAINLY WILL AND YOUR HONOR WILL OF COURSE BE REQUIRED TO LOOK AT EACH OF THESE INSTANCES INDIVIDUALLY. BUT I THINK GENERALLY, WE CAN SAY THAT NEARLY ALL OF THESE INCIDENTS INVOLVED LOUD ARGUMENTS, THEY INVOLVED A CONFRONTATIONAL ESCALATION OF A SITUATION IN WHICH THE DEFENDANT AND HIS SPOUSE, NICOLE BROWN SIMPSON, WERE IN CLOSE PROXIMITY TO EACH OTHER AND THE SITUATION THEN ESCALATED INTO A LOUD ARGUMENT. THEY FREQUENTLY INVOLVED THE BREAKING OF GLASS, PICTURE FRAMES. VERY FEW OF THESE INCIDENTS INVOLVED ANY PHYSICAL ASSAULT AT ALL TO THE EXTENT PHYSICAL ASSAULTS ARE ALLEGED. THOSE ASSAULTS ARE ALL SLAPS AND PUNCHES. THERE IS NEVER ANY ALLEGATION OF ANY USE OF A WEAPON IN ANY OF THESE INCIDENTS AND MANY OF THE INSTANCES INVOLVE DRINKING ON THE PART BOTH OF MR. SIMPSON AND OF HIS WIFE. SO A KEY QUESTION TO ASK AS WE LOOK AT EACH OF THESE INCIDENTS IS, WHAT ARE THE SIMILARITIES, WHAT ARE THE COMMON FEATURES BETWEEN WHAT WAS GOING ON IN THESE INCIDENTS AND WHAT WENT ON ON THE NIGHT OF JUNE 12TH. AND AGAIN, WE WOULD SUGGEST THAT A VERY USEFUL GUIDE, AND ESPECIALLY USEFUL BECAUSE IT IS THE MOST RECENT WORD FROM THE CALIFORNIA SUPREME COURT ON THIS COMPLEX ISSUE, APPEARS IN THE EWOLDT OPINION AND THE OPINION OF JUSTICE GEORGE, BECAUSE HE ATTEMPTS TO DESCRIBE IN SOME DETAIL THE DEGREE OF SIMILARITY REQUIRED FOR THREE OF THE THEORIES RELIED UPON HERE; THAT THE PRIOR INCIDENTS ARE ADMISSIBLE TO SHOW INTENT ACCOMPANYING THE MURDER ON JUNE 12TH, THAT THEY ARE PART OF SOME SORT OF COMMON DESIGN OR PLAN, AND ULTIMATELY THAT THEY WILL PROVE THE IDENTITY OF THE PERPETRATOR. NOW, ADDRESSING EACH OF THESE FORMS OF ADMISSIBILITY EXCEPTIONS TO ALLOWING PRIOR CONDUCT EVIDENCE, JUSTICE GEORGE INDICATES THAT A GREATER DEGREE OF SIMILARITY IS REQUIRED IN ORDER TO PROVE A COMMON DESIGN OR PLAN THAN IS REQUIRED TO PROVE INNOCENCE. BUT EVEN WITH RESPECT TO INTENT, HE MAKES IT QUITE CLEAR THAT IN PROVING INTENT, THE ACT IS CONCEDED OR ASSUMED THAT THIS KIND OF EVIDENCE IS RELEVANT TO SHOW THE STATE OF MIND OF THE ACTOR ONCE WE ASSUME OR CONCEDE THAT THE ACTOR DID THE ACT; AND THE QUESTION THEN BECOMES WHETHER HE DID IT WITH THE REQUISITE INTENT OR STATE OF MIND. AND WE DRAW AN INFERENCE THAT BECAUSE THE ACTOR ALSO DID THESE PRIOR ACTS WITH A PARTICULAR INTENT OR STATE OF MIND, WE CAN INFER THAT HE DID THIS ACT WITH THE SAME INTENT OR STATE OF MIND. NOW, THAT OF COURSE IS NOT THE CASE HERE. THE ISSUE IN THIS CASE IS GOING TO BE, WHO DID THIS ACT ON JUNE 12TH. SO WE’RE NOT ASSUMING OR CONCEDING THAT MR. SIMPSON DID THE ACT AND INQUIRING WHAT HIS STATE OF MIND WAS WHEN HE DID THE ACT. IT’S QUITE CLEAR FROM THE PLEADINGS FILED BY THE PROSECUTION THAT WHAT THEY WANT TO INFER IS IDENTITY. THEY’RE SAYING, “IF WE CAN SHOW THE ACTS WERE DONE WITH THE SAME INTENT, FROM THAT, WE CAN THEN INFER THE IDENTITY OF THE PERPETRATOR.” SO THEY’RE REALLY SEEKING TO EVADE THE GREATER DEGREE OF SIMILARITY THAT IS NECESSARY TO SHOW IDENTITY BY KIND OF BOOTSTRAPPING IT ON THE TAIL OF THIS THEORY OF SHOWING INTENT WHEN THE INTENT THEORY OF COURSE ASSUMES OR CONCEDES THE IDENTITY OF THE PERPETRATOR. JUSTICE GEORGE THEN GOES ON TO POINT OUT THAT WHEN WE’RE TALKING ABOUT ACTS BEING PART OF A COMMON DESIGN OR SCHEME, THAT THE SIMILARITY MUST BE NOT JUST A SIMILARITY IN THE RESULTS, BUT SUCH A CONCURRENCE OF COMMON FEATURES THAT THE VARIOUS ACTS ARE NATURALLY TO BE EXPLAINED AS CAUSED BY A GENERAL PLAN OF WHICH THEY ARE INDIVIDUAL MANIFESTATIONS. SO AGAIN, IN APPLYING THIS EXCEPTION, WE ARE CALLED UPON TO LOOK FOR THE SIMILARITY, LOOK FOR THE CONCURRENCE OF COMMON FEATURES BETWEEN THESE PRIOR ACTS AND THE ACT THAT THE DEFENDANT IS ON TRIAL FOR. AND THEN JUSTICE GEORGE CONCLUDES:
“THE GREATEST DEGREE OF SIMILARITY IS REQUIRED FOR EVIDENCE OF UNCHARGED MISCONDUCT TO BE RELEVANT TO PROVE IDENTITY. FOR IDENTITY TO BE ESTABLISHED, THE UNCHARGED MISCONDUCT AND THE CHARGED OFFENSE MUST SHARE COMMON FEATURES THAT ARE SUFFICIENTLY DISTINCTIVE SO AS TO SUPPORT THE INFERENCE THAT THE SAME PERSON COMMITTED BOTH ACTS.
“THE PATTERN AND CHARACTERISTICS OF THE CRIMES,” HE SAYS, “MUST BE SO UNUSUAL AND DISTINCTIVE AS TO BE LIKE A SIGNATURE.” AND THAT’S WHAT WE’VE GOT TO LOOK FOR IN EACH OF THESE PRIOR INCIDENTS. WHERE ARE THESE SIGNATURE FACTS THAT RECUR IN THE EVENTS THAT TOOK PLACE ON JUNE 12TH, 1994? IDENTITY IS THE FUNDAMENTAL ISSUE IN CONTENTION IN THIS TRIAL. AND OF COURSE, THE RISK OF PREJUDICE OF THIS KIND OF EVIDENCE IS THE GREATEST WHEN IT IS USED TO SHOW FACTS THAT ARE NOT REALLY IN ISSUE IN THE CASE. JUSTICE SYSTEM GEORGE MAKES THAT POINT IN EWOLDT; THAT WHEN WE’RE USING PRIOR ACTS TO PROVE FACTS THAT ARE NOT REALLY IN ISSUE IN THE CASE, THAT’S WHEN WE HAVE THE GREATEST DANGER THAT THE EVIDENCE WILL BE MISUSED FOR A PURPOSE FOR WHICH IT IS NOT ADMISSIBLE. AND THAT PURPOSE IN THIS CASE IS SIMPLY IDENTITY, TO SHOW WHO IT IS WHO COMMITTED THIS CRIME. NOW, AFTER FINDING ENOUGH SIMILARITY BETWEEN THE PRIOR ACTS AND THE ACT OF JUNE 12TH TO JUSTIFY THE USE OF THE 1101(B) EXCEPTION, THE COURT MUST THEN PROCEED TO ANALYZE EACH INCIDENT AS WELL IN TERMS OF SECTION 352 OF THE EVIDENCE CODE, LOOKING AT WHETHER THE PROOF OF THIS INCIDENT WOULD REQUIRE UNDUE CONSUMPTION OF TIME IN TERMS OF THE WITNESSES REQUIRED IN ALL OF THE ISSUES THAT WOULD HAVE TO BE RESOLVED WITH RESPECT TO ADMISSIBLE EVIDENCE. SECONDLY, THE SUBSTANTIAL DANGER OF UNDUE PREJUDICE. AND IT IS HERE THAT THE QUESTION OF REMOTENESS IS OF PARTICULAR RELEVANCE. THE RISK OF CONFUSION OF THE ISSUES OF WHETHER THE JURY WILL REALLY BE ABLE TO FOLLOW INSTRUCTIONS THAT TELL THEM THEY CAN ONLY USE THIS EVIDENCE FOR A LIMITED PURPOSE. AND FINALLY, THE DANGER OF MISLEADING THE JURY. IF WE FOCUS ON THE REMOTENESS OF THESE INCIDENTS, ON THE DEGREE OF SIMILARITY BETWEEN THESE INCIDENTS AND WHAT HAPPENED ON JUNE 12TH, ON THE PRESENCE OF PHYSICAL ABUSE IN THESE PRIOR INCIDENTS, AND THAT I THINK EVEN IF WE CONCEDED THAT, PEOPLE VERSUS ZACK STANDS FOR THE PROPOSITION FOR WHICH THE PROSECUTION HAS CITED IT. THE RULE STATED IS THAT:
“PRIOR ASSAULTS UPON THE SAME VICTIM MAY BECOME ADMISSIBLE.” AND WE NEED TO ASK AS TO EACH OF THESE INCIDENTS WHETHER THEY ACTUALLY INVOLVED A PHYSICAL ASSAULT ON THE VICTIM. I THINK APPLYING THOSE TESTS TO EACH INCIDENT, WE WILL CONCLUDE THAT VIRTUALLY NONE OF THE EVIDENCE SOUGHT TO BE ADMITTED CAN BE ADMITTED IN THIS TRIAL BECAUSE IT IS SIMPLY IRRELEVANT TO THE QUESTION OF WHAT HAPPENED ON JUNE 12TH. NOW, I WOULD LIKE TO MOVE ON TO THE GENERAL PRINCIPLES GOVERNING THE USE OF EXPERT WITNESSES WITH RESPECT TO PARTICULAR SYNDROMES BECAUSE THE PROSECUTION HAS ANNOUNCED ITS INTENT OF CALLING TO THE WITNESS STAND IN THIS CASE AN EXPERT WITNESS ON THE BATTERED WOMAN’S SYNDROME TO EXPLAIN THAT SYNDROME TO THE JURY. AND I THINK IT’S VERY IMPORTANT THAT WE PUT THAT SYNDROME BACK IN THE CONTEXT OF WHAT IT WAS DEVELOPED TO EXPLAIN. THE BATTERED WOMAN’S SYNDROME WAS DEVELOPED TO EXPLAIN THE IMPACT ON THE VICTIM OF BATTERING, TO EXPLAIN WHY SUCH A VICTIM WOULD REMAIN IN A BATTERING RELATIONSHIP, TO EXPLAIN THE STATE OF MIND OF THAT VICTIM WITH RESPECT TO ANY CORRECTIVE ACTION THE VICTIM MAY HAVE TAKEN AGAINST THE BATTERER. ITS PURPOSE WAS NOT TO PREDICT THE CONDUCT OF THE PERPETRATORS OF BATTERING BEHAVIOR. AND WHAT THE PROSECUTION IS PROPOSING HERE IS NOT A TRADITIONAL USE OF THE BATTERED WOMAN’S SYNDROME, WHICH HAS BEEN APPROVED BY THE COURTS AND AUTHORIZED BY THE EVIDENCE CODE IN SECTION 1107. BUT WHAT THEY ARE PROPOSING IS THE ONE USE OF THIS EVIDENCE THAT IS SPECIFICALLY PROHIBITED BY SECTION 1107 OF THE EVIDENCE CODE, WHICH PROVIDES THAT:
“EXPERT EVIDENCE OFFERED BY EITHER THE PROSECUTION OR THE DEFENSE REGARDING BATTERED WOMAN’S SYNDROME, INCLUDING THE PHYSICAL, EMOTIONAL OR MENTAL EFFECTS UPON THE BELIEVED PERCEPTIONS OR BEHAVIOR OF VICTIMS OF DOMESTIC VIOLENCE IS ADMISSIBLE EXCEPT WHEN OFFERED AGAINST A CRIMINAL DEFENDANT TO PROVE THE OCCURRENCE OF THE ACT OR ACTS OF ABUSE WHICH FORM THE BASIS OF THE CRIMINAL CHARGE.” AND THAT IS PRECISELY WHAT THEY PROPOSE TO DO WITH THE BATTERED WOMAN’S EXPERT; TO CALL THAT EXPERT TO PROVE THE OCCURRENCE OF A MURDER BY O.J. SIMPSON, TO SHOW THAT THE MURDER WITH WHICH HE IS CHARGED ON JUNE 12TH IS PART OF A PATTERN OF BEHAVIOR THAT THEY PLAN TO EXPOUND THROUGH THE PRESENTATION OF THIS EXPERT. AND THAT OF COURSE IS THE ONE USE THAT IS PROHIBITED BY SECTION 1107. AND I THINK IT’S IMPORTANT THAT WE PUT SECTION 1107 INTO ITS CONTEXT OF WHY IT WAS ENACTED AND WHAT ITS PURPOSE ACTUALLY WAS. THE ENACTMENT OF 1107 WAS SIMPLY A CODIFICATION OF AN OPINION OF THE COURT OF APPEALS IN PEOPLE VERSUS ARIS, 215 CAL. APP. 3D, A 1989 DECISION IN WHICH THE VICTIM OF A BATTERING RELATIONSHIP WAS ACCUSED OF MURDERING HER HUSBAND WHILE HE SLEPT, SHOOTING HIM IN THE BACK WHILE HE SLEPT IN HIS BED. AND AT THAT TRIAL, THE PROSECUTION PRESENTED THE TESTIMONY OF DR. LENORE WALKER, A LEADING EXPERT WHO ACTUALLY DEVELOPED THE BATTERED WOMAN’S SYNDROME. AND WHAT THEY PROPOSE TO DO WITH DR. WALKER’S TESTIMONY IS TO SHOW, TO BOLSTER A CLAIM OF SELF-DEFENSE, WHY THE VICTIM OF A BATTERING RELATIONSHIP WOULD HAVE REASONABLE FEAR OF THE PERSON WHO BATTERED HERE EVEN WHILE HE SLEPT AND WHY IT MIGHT BE REASONABLE FOR SUCH A PERSON TO SHOOT THAT BATTERER RATHER THAN JUST TO WALK AWAY FROM THE RELATIONSHIP. AND WHAT THE COURT HELD IN ARIS WAS THAT DR. WALKER WAS PROPERLY PROHIBITED FROM STATING AN OPINION THAT THE DEFENDANT ACTUALLY PERCEIVED THAT SHE WAS IN EMINENT DANGER AND NEEDED TO KILL IN SELF-DEFENSE. BUT THE ARIS COURT SAID IT WAS NOT ERROR TO PERMIT DR. WALKER TO TESTIFY BASED ON HER EXPERIENCE AND THE BATTERED WOMAN’S SYNDROME THEORY AS TO HOW THE DEFENDANT’S PARTICULAR EXPERIENCES AS A BATTERED WOMAN AFFECTED HER PERCEPTIONS OF DANGER, ITS IMMINENCE AND WHAT ACTIONS WERE NECESSARY TO PROTECT HERSELF. NOW, WHAT THE LEGISLATURE DID IN ENACTING 1107 IS TO CODIFY THE RULING IN PEOPLE VERSUS ARIS THAT THE EXPERT SHOULD BE PERMITTED TO OFFER TESTIMONY WITH RESPECT TO THE IMPACT OF BATTERING UPON THAT VICTIM’S PERCEPTION OF IMMINENCE OF DANGER AND WHAT DANGERS OR WHAT ACTIONS ARE NECESSARY TO PROTECT HERSELF. IT ALSO ABROGATED THE HOLDING OF ARIS BY SAYING THAT —
THE COURT: MR. UELMEN, ONE SECOND.
(BRIEF PAUSE.)
THE COURT: THANK YOU. MR. UELMEN.
MR. UELMEN: IT ABROGATED ARIS BY SAYING THAT THE TESTIMONY OF AN OPINION AS TO WHETHER THE DEFENDANT ACTUALLY PERCEIVED SHE WAS IN EMINENT DANGER COULD BE ADMITTED. SO TO THAT EXTENT, THE LEGISLATURE WENT BEYOND ARIS. BUT IN ONE RESPECT, THE LEGISLATURE WAS VERY CAREFUL TO RETAIN THE LIMITATIONS RECOGNIZED BY THE ARIS OPINION ITSELF WITH RESPECT TO THE USE OF SUCH EVIDENCE AGAINST A CRIMINAL DEFENDANT WHO WAS ACCUSED OF BEING THE BATTERER AND OFFERING IT TO SHOW THAT IT’S MORE LIKELY HE COMMITTED THE CRIME AGAINST THE VICTIM OF THE BATTERING RELATIONSHIP. IN ARIS, THE COURT SPECIFICALLY REFERRED TO PRIOR OPINIONS BY THE CALIFORNIA SUPREME COURT IN BLEDSOE AND BY THE CALIFORNIA COURT OF APPEAL IN BALKER. AND I THINK THAT’S A PARTICULARLY PROPORTION OF BOTH THE ARIS OPINION AND THE SUBSEQUENT LEGISLATION BECAUSE THE LEGISLATIVE HISTORY MAKES IT QUITE CLEAR THAT THE LEGISLATURE WAS AWARE OF BLEDSOE AND BALKER AND INTENDED TO CONTINUE THE PROHIBITIONS CONTAINED IN THOSE CASES OF THE USE OF EXPERT TESTIMONY IN THE FORM THAT THE PROSECUTION PROPOSES TO PRESENT IT IN THIS CASE. IN ARIS, THE COURT SAID:
“THE RESPONDENT CONTENDS THAT DR. WALKER’S PROFFERED OPINION TESTIMONY THAT DEFENDANT WAS SUFFERING FROM BATTERED WOMAN’S SYNDROME SHOULD BE ANALOGIZED TO THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME AND THE RAPE TRAUMA SYNDROME THAT WAS EXCLUDED UNDER AUTHORITY OF PEOPLE VERSUS BLEDSOE AND PEOPLE VERSUS BALKER.” AND THE COURT IN ARIS RECOGNIZED THAT BOTH BLEDSOE AND BALKER DEALT WITH OPINIONS THAT A RAPE OR A CHILD ABUSE VICTIM’S BEHAVIOR WERE EVIDENCE THAT THE VICTIM HAD ACTUALLY BEEN RAPED OR ABUSED, AND THE COURTS IN THOSE CASES HELD THAT THESE OPINIONS WERE INADMISSIBLE BECAUSE THEY COULD NOT SATISFY THE KELLY-FRYE TEST AND THEY COULDN’T SATISFY THE KELLY-FRYE TEST BECAUSE EVEN THOUGH CHILD ABUSE ACCOMMODATION SYNDROME AND RAPE TRAUMA SYNDROME ARE GENERALLY ACCEPTED IN THE SCIENTIFIC COMMUNITY, THEY ARE NOT ACCEPTED FOR THE PURPOSE OF PROVING THAT A CRIME OCCURRED. THAT’S NOT THE PURPOSE FOR WHICH THE SYNDROMES WERE DEVELOPED AND IT’S NOT THE PURPOSE FOR WHICH THEY CAN BE OFFERED IN EVIDENCE AT A TRIAL. AND IF YOUR HONOR GOES BACK TO THE CALIFORNIA SUPREME COURT OPINION IN BLEDSOE, THEY COULD NOT HAVE SAID IT MORE CLEARLY. READING FROM THE OPINION IN THE BLEDSOE CASE:
“GIVEN THE HISTORY, THE PURPOSE AND NATURE OF THE RAPE TRAUMA SYNDROME, WE CONCLUDE THAT EXPERT TESTIMONY THAT A COMPLAINING WITNESS SUFFERS FROM RAPE TRAUMA SYNDROME IS NOT ADMISSIBLE TO PROVE THAT THE WITNESS WAS RAPED.
“WE EMPHASIZE OUR CONCLUSION IN THIS REGARD IS NOT INTENDED TO SUGGEST THAT RAPE TRAUMA SYNDROME IS NOT GENERALLY RECOGNIZED OR USED IN THE GENERAL SCIENTIFIC COMMUNITY, BUT ONLY THAT IT IS NOT RELIED ON IN THAT COMMUNITY FOR THE PURPOSE FOR WHICH THE PROSECUTION SOUGHT TO USE IT IN THIS CASE; NAMELY, TO PROVE THAT A RAPE IN FACT OCCURRED.
“BECAUSE THE LITERATURE DOES NOT EVEN PURPORT TO CLAIM THAT THE SYNDROME IS A SCIENTIFICALLY RELIABLE MEANS OF PROVING THAT A RAPE OCCURRED, WE CONCLUDE THAT IT MAY NOT PROPERLY BE USED FOR THAT PURPOSE IN A CRIMINAL TRIAL.” AND WE HAVE A PRECISELY ANALOGOUS SITUATION HERE. THE BATTERED WOMAN’S SYNDROME WAS NOT DEVELOPED TO PREDICT WHICH VICTIMS OF BATTERING ARE LIKELY TO SUBSEQUENTLY BECOME THE VICTIMS OF A HOMICIDE. THE STATISTICAL BASIS OF THE PREDICTION SIMPLY WOULDN’T SUPPORT THAT USE OF THE SYNDROME. EVEN USING THE MOST CONSERVATIVE ESTIMATES OF HOW MANY BATTERINGS OF WOMEN THERE ARE EVERY YEAR IN THE UNITED STATES, THAT NUMBER IS AROUND TWO MILLION. APPLYING THE MOST EXPANSIVE ESTIMATES OF HOW MANY HOMICIDES — OF THE 22,000 HOMICIDES IN AMERICA EVERY YEAR, HOW MANY OF THOSE HOMICIDES ARE SPOUSAL ABUSE TYPE HOMICIDES, THE NUMBER RANGES SOMEWHERE BETWEEN 2,000 AND 4,000. SO WE ARE TALKING ABOUT LESS THAN ONE PERCENT OF THE ACTUAL BATTERING INCIDENTS RESULTING IN A HOMICIDE IN A GIVEN YEAR. NOW, WHAT THE PROSECUTION PROPOSES TO DO IN THIS CASE IS TO WORK BACKWARDS. ASSUME THE IDENTITY OF THE PERPETRATOR. ASSUME THAT MR. SIMPSON WAS THE PERPETRATOR OF THIS MURDER. THEREFORE, NOW WE CAN LOOK BACKWARD AT THE PRIOR RELATIONSHIP, AND THAT BECOMES RELEVANT TO EXPLAIN HIS BEHAVIOR WITH RESPECT TO THIS INCIDENT. BUT OF COURSE, HERE THE IDENTITY OF THE PERPETRATOR IS WHAT IS AT ISSUE IN THIS CASE. AND WHAT THE PROSECUTION REALLY WANTS TO DO IS TO SAY BASED ON AN EXPERT’S ANALYSIS OF THIS PRIOR RELATIONSHIP FOR A 17-YEAR PERIOD, WE CAN PREDICT THAT IT IS MORE LIKELY THAT MR. SIMPSON WAS THE PERPETRATOR OF THIS MURDER ON JUNE 12TH. THE SCIENCE DOESN’T SUPPORT THAT, THE BATTERED WOMAN’S SYNDROME WAS NOT DEVELOPED TO SUPPORT THAT AND THAT IS THE PRECISE USE OF THE BATTERED WOMAN’S SYNDROME THAT IS PROHIBITED BY SECTION 1107 OF THE EVIDENCE CODE. SO WE WILL CONTEND OF COURSE THAT NOT ONLY ARE THESE INDIVIDUAL INCIDENTS IRRELEVANT WITH RESPECT TO PROVING THE OFFENSE CHARGED ON JUNE 12TH, BUT THE ADMISSION OF ANY EXPERT TESTIMONY TO ATTEMPT TO INTERPRET THESE INCIDENTS AND PRESENT SOME OPINION TO THE JURY BASED UPON THEM WOULD BE HIGHLY IMPROPER AND IN DIRECT CONTRAVENTION OF SECTION 1107 AS WELL AS OF THE CALIFORNIA SUPREME COURT RULING IN BLEDSOE AND THE COURT OF APPEAL OPINION IN BALKER DEALING WITH THE CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME. THE FINAL GENERAL ISSUE THAT WE WANTED TO ADDRESS BEFORE MOVING INTO THE INDIVIDUAL INCIDENTS RELATES TO THE PROHIBITION OF HEARSAY TESTIMONY. AND OF COURSE, THE HEARSAY RULE IS ALSO DESIGNED TO PROTECT A FUNDAMENTAL RIGHT OF ANY CRIMINAL ACCUSED; AND THAT IS THE RIGHT TO CONFRONT AND TO CROSS-EXAMINE THE WITNESSES AGAINST HIM. NOW, YOUR HONOR IS WELL AWARE OF COURSE THAT THERE ARE A LOT OF EXCEPTIONS TO THE HEARSAY RULE, EXCEPTIONS BASED UPON CIRCUMSTANCES THAT SHOW THAT THE OUT-OF-COURT STATEMENT IS SO RELIABLE THAT WE DON’T NEED TO CROSS-EXAMINE THE DECLARANT IN ORDER TO ASSESS THE RELIABILITY OF OR THE ACCURACY OF THAT STATEMENT. NOW, WITH RESPECT TO MOST OF THE ITEMS, AS YOU GO THROUGH THE LIST OF ALL OF THE ITEMS THAT ARE IN ISSUE, NO EXCEPTION TO THE HEARSAY RULE HAS EVEN BEEN SUGGESTED THAT WOULD MAKE ANY OF THESE STATEMENTS, OUT-OF-COURT STATEMENTS ADMISSIBLE AS AN EXCEPTION TO THE HEARSAY RULE. I REFER SPECIFICALLY TO ALL OF THE INCIDENTS THAT WERE DERIVED FROM A DOCUMENT THAT THE PROSECUTION HAS CALLED A DIARY, WHICH IS FAR FROM A DIARY. WHAT IT IS IS A MEMO PREPARED FOR THE DIVORCE LAWYER REPRESENTING MRS. SIMPSON IN THE DIVORCE PROCEEDINGS LEADING TO THE DISSOLUTION OF HER MARRIAGE WITH MR. SIMPSON. AND WHAT MRS. SIMPSON WAS ASKED TO DO, AS MANY PARTIES ARE TO THESE TYPES OF PROCEEDINGS, IS TO SIT DOWN AND JUST MAKE UP A LIST OF EVERYTHING THAT SHE COULD RECALL THAT SHE THOUGHT MIGHT BE USABLE TO OBTAIN SOME ADVANTAGE IN THAT DIVORCE PROCEEDING. THESE KINDS OF DOCUMENTS ARE NOTORIOUSLY UNRELIABLE. THEY ARE PREPARED WITH A MOTIVE TO EXAGGERATE. THEY ARE PREPARED IN ORDER TO GAIN SOME ADVANTAGE IN PENDING LITIGATION. THEY ARE NOT PROOF OF ANY STATE OF MIND OTHER THAN THE STATE OF MIND THAT ACCOMPANIES THE LITIGATION FOR WHICH THEY ARE PREPARED. SO THERE’S SIMPLY NO EXCEPTION TO THE HEARSAY RULE THAT WOULD PERMIT A DOCUMENT OF THIS NATURE TO BE BROUGHT INTO COURT TO PROVE THE TRUTH OF THE ALLEGATIONS CONTAINED IN THAT DOCUMENT WITHOUT CROSS-EXAMINATION OF THE DECLARANT. SO UNTIL THE PEOPLE CAN AT LEAST PRESENT SOME PLAUSIBLE THEORY OF AN EXCEPTION THAT WOULD JUSTIFY THE USE OF THIS EVIDENCE, I THINK YOUR HONOR CAN MAKE SHORT SHRIFT OF ANY INCIDENTS OR ISSUES WHERE THE ONLY PROOF OF THEM IS GOING TO COME IN THE NATURE OF THAT KIND OF DOCUMENT WHICH WILL BE READILY EXCLUDABLE AS HEARSAY. THE TWO EXCEPTIONS THAT THE PROSECUTION HAS PRESENTED WITH RESPECT TO SOME OF THE EVIDENCE THEY PROPOSE TO PRESENT IS THAT THE EVIDENCE WAS A SPONTANEOUS STATEMENT MADE UNDER THE EXCITEMENT OF PERCEIVED CIRCUMSTANCES AND THAT THE OUT-OF-COURT STATEMENTS WILL BE ADMISSIBLE TO SHOW THE STATE OF MIND OF THE DECLARANT. NOW, ONCE AGAIN, I THINK IF YOUR HONOR ADDRESSES THE QUESTION OF WHAT IS REALLY AT ISSUE IN THIS CASE, WE CAN CUT THROUGH A LOT OF THIS EVIDENCE AND SIMPLY RESOLVE IT BY RECOGNIZING THAT THERE IS NO ISSUE IN THIS CASE AS TO THE STATE OF MIND OF NICOLE BROWN SIMPSON OR THE STATE OF MIND OF RONALD GOLDMAN FOR THAT MATTER. THERE ARE NO FACTUAL ISSUES RELATED TO ANY OF THEIR CONDUCT ON THE — AT THE TIME THAT THE KILLING OCCURRED. THERE IS NO NEED TO EXPLAIN ANYTHING THEY DID OR DIDN’T DO AT THE TIME THEY BECAME VICTIMS OF THIS HOMICIDE. IT’S SIMPLY NOT AN ISSUE IN THE CASE. AND HERE, THERE ARE TWO VERY RECENT CALIFORNIA SUPREME COURT OPINIONS DIRECTLY ON POINT ON WHICH THE DEFENSE WILL RELY. BOTH INVOLVE VICTIMS WHO EXPRESSED FEARS OF THE DEFENDANT ACCUSED OF THEIR MURDER TO FRIENDS AND FAMILY MEMBERS. AND IN BOTH OF THESE CASES, THE COURT HELD THERE WAS NO HEARSAY EXCEPTION THAT JUSTIFIED THE ADMISSION OF THIS EVIDENCE AND ITS ADMISSION WAS REVERSIBLE ERROR. THE FIRST OF THESE CASES IS PEOPLE VERSUS IRELAND, 70 CAL. 2D 529, IN WHICH THE — AND THIS IS A CASE OF A SPOUSAL MURDER, A HUSBAND ACCUSED OF MURDERING HIS WIFE. THE PROSECUTION CALLED AS A WITNESS A FAMILY FRIEND WHO HAD KNOWN THE DEFENDANT FOR 11 YEARS WHO TESTIFIED THAT THE WITNESS HAD VISITED HER, AND THE PROSECUTION ASKED HER THE SUBSTANCE OF A TELEPHONE CONVERSATION SHE HAD WITH THE VICTIM IN WHICH THE VICTIM ALLEGEDLY SAID — AND THIS WAS ON THE VERY MORNING THAT THE MURDER OCCURRED.
“I KNOW HE’S GOING TO KILL ME. I WISH HE WOULD HURRY UP AND GET IT OVER WITH. HE’LL NEVER LET ME LEAVE.” THE VERY MORNING THAT THE VICTIM WAS MURDERED, THOSE FEARS WERE EXPRESSED TO A CLOSE FAMILY FRIEND. AND THE PROSECUTION’S THEORY WAS THE SAME THEORY OFFERED HERE; THAT IT WAS RELEVANT TO SHOW THE STATE OF MIND OF THE VICTIM. AND THE COURT SAID, SUCH STATE OF MIND SIMPLY WASN’T RELEVANT, IT WAS NOT AN ISSUE IN THE CASE IN TERMS OF THE CIRCUMSTANCES OF THE MURDER THAT OCCURRED. IT IS CLEAR AT THE OUTSET THE COURT SAID THAT THE DECLARANT’S, ANN’S, STATE OF MIND ON THE DAY OF THE DEATH WAS NOT ITSELF AN ISSUE IN THE CASE. THE DEFENSE DID NOT RAISE ANY ISSUE OF FACT WITH RESPECT TO ANN’S CONDUCT IMMEDIATELY PRECEDING HER DEATH. THEREFORE, THE EVIDENCE WAS INADMISSIBLE. THE IRELAND CASE WAS FOLLOWED IN THE SUBSEQUENT DECISION OF THE CALIFORNIA SUPREME COURT IN PEOPLE VERSUS ARCEGA, A 1982 OPINION, IN WHICH THE PROSECUTION ASKED THE VICTIM’S MOTHER WHETHER THE VICTIM HAD EVER EXPRESSED FEAR OF THE DEFENDANT. THE OBJECTION WAS MADE THAT THIS WAS HEARSAY. THE OBJECTION WAS OVERRULED, AND THE MOTHER THEN TESTIFIED THAT SHORTLY BEFORE HER DEATH, THE APPELLATE TOLD HER THAT THE DEFENDANT — OR THE VICTIM TOLD HER THAT THE DEFENDANT WAS TREATING HER WEIRD BY FOLLOWING HER CLOSELY AROUND THE APARTMENT. THE VICTIM EXPRESSED TO HER MOTHER THE FEAR THAT THE DEFENDANT WAS GOING TO HIT HER, TO BEAT HER UP. AND AGAIN, THE THEORY OFFERED FOR THAT WAS THE SAME THEORY OFFERED HERE; THAT THIS EVIDENCE WAS TO SHOW THE STATE OF MIND OF THE VICTIM. AND THE COURT, CITING PEOPLE VERSUS IRELAND, CONCLUDED THAT THE VICTIM’S STATE OF MIND WAS NOT AN ISSUE IN THE CASE. THEREFORE, IT WAS ERROR AND IT WAS REVERSIBLE ERROR TO ADMIT THAT EVIDENCE. THE COURT CONCLUDED IN THE PRESENT CASE, AS IN IRELAND:
“THE ACTS OR CONDUCT OF THE DECLARANT IMMEDIATELY PRECEDING THE HOMICIDE WERE SIMPLY NOT IN DISPUTE.
“THE DEFENSE DID NOT QUESTION PROSECUTION EVIDENCE WHICH INDICATED THAT THE VICTIM WAS LYING ON HER BED AT THE TIME OF THE KILLING. THEREFORE, ADMISSION OF THE HEARSAY STATEMENTS REGARDING MILNER’S FEAR OF THE APPELLATE AND HIS WEIRD ACTIONS WAS ERROR.” AND THAT IS PRECISELY THE SITUATION THAT WILL BE PRESENTED IN THIS CASE. THE DEFENSE WILL NOT OFFER ANY EVIDENCE OR MAKE ANY ISSUE WITH RESPECT TO THE STATE OF MIND OF EITHER OF THESE VICTIMS AT THE TIME THEY WERE KILLED. SO THIS EVIDENCE SIMPLY WILL NOT BE RELEVANT TO ANY ISSUE IN THIS CASE. THAT — IF I COULD JUST HAVE A MOMENT.
(BRIEF PAUSE.)
MR. UELMEN: THAT CONCLUDES THE GENERAL PRINCIPLES THAT WE WANTED TO CALL TO YOUR HONOR’S ATTENTION WITH RESPECT TO THE ADMISSIBILITY OF ALL OF THIS EVIDENCE. I BELIEVE THESE GENERAL PRINCIPLES CAN GREATLY SIMPLIFY THE DIFFICULT TASK THAT AWAITS YOUR HONOR BY SIMPLY CONCLUDING THAT AN EXPERT WITNESS ON THE BATTERED WOMAN’S SYNDROME WILL NOT BE ADMISSIBLE FOR THE PURPOSE FOR WHICH THE PROSECUTION PROPOSES TO OFFER IT, BY SIMPLY RULING THAT THE STATE OF MIND OF THE VICTIMS IN THIS CASE IS IRRELEVANT, BY SETTING SOME SORT OF TEMPORAL GUIDELINES WITH RESPECT TO REMOTENESS OF HOW FAR ARE WE GOING TO BE ALLOWED TO GO BACK IN THIS INQUIRING INTO THESE PRIOR INCIDENTS AND BY INSISTING THAT EVERY PRIOR INCIDENT HAVE SOME SIMILARITY TO THE CIRCUMSTANCES OF THE CRIME THAT IS CHARGED IN THIS CASE, THAT THERE IS NO GENERAL EXCEPTION OR SPECIAL EXCEPTION FOR DOMESTIC VIOLENCE CASES. I THINK WE CAN CUT THROUGH A LOT OF THIS EVIDENCE IN VERY SHORT ORDER AND CONCLUDE THAT IT IS INADMISSIBLE. IF YOUR HONOR PREFERS, WE CAN HAVE THE PEOPLE RESPOND TO THESE GENERAL PRINCIPLES AND THEN ADDRESS EACH OF THE INDIVIDUAL INCIDENTS INDIVIDUALLY.
MS. BODIN: MAY WE HAVE A MOMENT, YOUR HONOR?
(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)
MR. GORDON: YOUR HONOR, WE WOULD LIKE TO THANK THE DEFENSE FOR THE OPPORTUNITY. HOWEVER, WE THINK IT WOULD PROBABLY BE BEST FOR THE COURT AND FOR THE CLEAREST PRESENTATION OF OUR EVIDENCE FOR THIS MOTION TO LET THE DEFENSE FINISH, AND THEN WE CAN RESPOND BOTH IN GENERAL THEORIES AND SPECIFICALLY, IF THAT’S ALL RIGHT WITH THE COURT.
THE COURT: ALL RIGHT.
MR. GORDON: IF NOT, WE CAN PRESENT SOME GENERAL RESPONSE NOW.
THE COURT: WELL, I AM FAMILIAR WITH THE GENERAL ISSUES THAT ARE INVOLVED. BUT AT SOM