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From:
[email protected] (Myra Dinnerstein)
Subject: SIDEBARS - 6/08/95
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Date: Wed, 14 Jun 1995 01:08:14 GMT
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Sidebars from June 8, 1995
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE'RE OVER AT SIDEBAR.
MR. SHAPIRO AND MR. KELBERG.
MR. SHAPIRO: WE'RE -- I WANT THE RECORD TO REFLECT
OBJECTIONS TO HYPOTHETICAL QUESTIONS THAT HAVE BEEN ASKED, THAT
MR. KELBERG WILL ASK A QUESTION AND THEN GET AN ANSWER IF
SOMETHING IS POSSIBLE OR IF IT COULD BE, AND THEN HE WILL PUT IN
THE HYPOTHETICAL AS IF IT IS A FACT.
FOR EXAMPLE:
"COULD THIS INJURY BE CAUSED BY A SHOE?
"YES.
"NOW, ASSUME THE SHOE WAS WORN BY A 210 POUND MALE."
WE BELIEVE THAT IS HIGHLY IMPROPER AND PREJUDICIAL
AND WANT THE RECORD TO REFLECT THAT.
REGARDING THE HYPOTHETICAL OF RIGATONI, THE COURT HAS
IN EVIDENCE A BILL FROM THE RESTAURANT WHICH DOES NOT INDICATE
ANY RIGATONI WAS SERVED TO ANYBODY AT THAT TIME, AND, NO. 2,
THERE IS NO EVIDENCE THAT I AM AWARE OF THAT ANY WAITRESS HAS
OFFERED ANY TESTIMONY ABOUT RIGATONI. THERE IS TESTIMONY THAT A
WAITRESS HEARD SOMEBODY ELSE SAY THAT RIGATONI WAS SERVED, AND
THAT WOULD BE FOUNDATION BASED ON HEARSAY.
THE COURT: MR. KELBERG.
MR. KELBERG: IN REVERSE ORDER, THAT TESTIMONY CAME AT A
TIME WHEN I DON'T THINK I WAS INVOLVED WITH THIS CASE.
BUT FROM A LEGAL STANDPOINT, I BELIEVE THIS OBJECTION
TO IT BEING HEARSAY IS A TAD BIT LATE TO HAVE ANY SIGNIFICANCE
AND THAT THE JURY MAY CONSIDER IT FOR THE TRUTH OF THE MATTER
ASSERTED BECAUSE OF THE FAILURE OF COUNSEL TO OBJECT TO IT ON ANY
APPROPRIATE GROUND, ASSUMING IT WAS OBJECTIONABLE, NO. 1.
NO. 2, THE BILL DOES IN FACT REFLECT A PASTA. MR.
SHAPIRO I'M SURE IS FAMILIAR WITH PASTA HAVING DIFFERENT TYPES OF
SHAPES AND CONTENT, AND RIGATONI IS NOT A DISH. IT IS A TYPE OF
PASTA.
SO THAT IF YOU ORDER A DISH, HAVING ORDERED MANY
DISHES FROM PLACES LIKE VIA LA PASTA, HAS 500 ZILLION SELECTIONS
OF DIFFERENT PASTA DISHES, WHEN I ORDER A NO. 40, THEY WILL ASK
ME, "AND DO YOU WANT IT WITH SPAGHETTI, LINGUINI, RIGATONI,
FETTUCINI," AND I'M SURE I LEFT OUT A FEW OF WHAT THEY OFFER.
AS FAR AS A PRACTICAL MATTER, MR. SHAPIRO IS WRONG
WITH RESPECT TO THE BILL. WITH RESPECT TO THE HYPOTHETICALS,
YOUR HONOR, THERE IS NOTHING IMPROPER WITH ANY HYPOTHETICAL THAT
I HAVE POSED.
OF COURSE, THIS IS AN UNTIMELY OBJECTION. IF COUNSEL
DIDN'T MAKE THE OBJECTION WHEN THE QUESTION IS ASKED --
THE COURT: NO. HE DID.
MR. KELBERG: I'M NOT SURE HE DID WITH EVERY ONE.
BUT ON A MORE FUNDAMENTAL POINT, IT HAS BEEN MADE
CLEAR TO THE JURY WITH MY HYPOTHETICAL, ASSUMING FOR THE SAKE OF
ARGUMENT, THAT THIS WAS DONE BY A SHOE WORN BY A PERSON OF 210
POUNDS, AND THEN I'LL ASK WHATEVER I ASKED, AND HE'S CERTAINLY --
IF MR. BADEN WANTS TO COME IN AND DEAL WITH THESE, HE WILL, AND
WE'LL DEAL WITH HIM ON CROSS-EXAMINATION. BUT AS FAR AS ANY
IMPROPRIETY, I SUBMIT TO THE COURT THERE IS NONE.
THE COURT: ALL RIGHT.
THANK YOU.
MR. SHAPIRO: YOUR HONOR, MAY I FURTHER STATE JUST BRIEFLY
IN RESPONSE, THE BILL INDICATES THE TYPE OF PASTA AS PENNE, WHICH
IS A TYPE OF PASTA, NOT A SAUCE FOR A PASTA.
AND SECOND, WE BELIEVE THE COURT'S RULINGS ARE VERY
-- THAT MR. SCHECK'S HYPOTHETICALS WERE ALL OBJECTED TO AND ALL
SUSTAINED BY THE COURT.
THE COURT: WELL, THAT'S NOT TRUE, MR. SHAPIRO.
MR. SHAPIRO: NOT ALL, BUT MANY WERE SUSTAINED BASED ON THE
GROUNDS THAT THEY ASSUME A FACT NOT IN EVIDENCE AND NOT ASSUMING
ARGUENDO. SO I WANTED THE RECORD TO REFLECT THAT.
MR. KELBERG: I WOULD LIKE TO POINT OUT ONE OTHER THING.
NO. 1, MY HYPOTHETICALS ARE BASED UPON CIRCUMSTANCES
>FROM WHICH THE EVIDENCE PERMITS THE INFERENCE THAT THE
CIRCUMSTANCE EXISTS.
NO. 2, EVEN IF THAT WERE NOT TRUE, I DON'T BELIEVE
MR. SCHECK CITED THE COURT TO A CASE THAT IS A VENERABLE, BUT
STILL CALIFORNIA SUPREME COURT DECISION IN PEOPLE VERSUS BUSCH,
B-U-S-C-H, 56 CAL. 2D. -- I DON'T RECALL THE PAGE NUMBER -- WHICH
HAS AS ONE OF ITS PROPOSITIONS THE RIGHT OF A CROSS-EXAMINER TO
OFFER A HYPOTHETICAL NOT BASED ON CIRCUMSTANCES IN THE EVIDENCE
TO TEST THE CREDIBILITY AND QUALIFICATIONS OF THE EXPERT.
I RAISE THIS NOT BECAUSE I'M HERE TO SAY MR. SCHECK
GOT A BAD RULING, BUT TO INDICATE THAT IF I HAVE TO -- I LOVE
BEING DOWN HERE WITH THE COURT AND COUNSEL, BUT I WOULD BE VERY
HAPPY IF I FINISH THESE TWO WITNESSES AND I AM NOT TO BE SEEN IN
THIS CASE AGAIN. BUT IF I HAVE TO BE SEEN IN THIS CASE AGAIN, IT
WILL BE AS A CROSS-EXAMINER, AND I WILL SUBMIT TO THE COURT THAT
THAT IS THE LAW ON CROSS-EXAMINATION.
I WILL ALSO SUBMIT TO THE COURT A DIFFERENT VIEW ON
721(B) BECAUSE NO ONE HAS INDICATED --
THE COURT: WELL, COUNSEL, WE'RE HERE TO HEAR HIS RECORD.
WE'RE ON A RECESS NOW.
MR. KELBERG: ALL RIGHT.
THE COURT: HE'S MADE HIS RECORD. HE'S MADE HIS OBJECTION.
MR. KELBERG: MCGARITY IS A CIVIL CASE, YOUR HONOR.
THE COURT: YES. I KNOW.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE'RE OVER AT THE SIDEBAR.
MR. SHAPIRO: YOUR HONOR, WE WOULD OBJECT TO THE PROPRIETY
OF THE HYPOTHETICAL THAT'S BEEN PROFFERED IN THAT IT CLEARLY IS
SAYING, ASSUME MR. SIMPSON DID THIS, AND THAT IS EXPRESSING AN
OPINION OF COUNSEL. IT IS NOT BASED ON ANY EVIDENCE AND IT HAS
NO RELEVANCE TO THE HYPOTHETICAL WHATSOEVER.
THE COURT: MR. KELBERG.
MR. KELBERG: YOUR HONOR, IF THE COURT LOOKS AT CASE SUCH AS
PEOPLE VERSUS PHILLIPS, WHICH IS I THINK 121 OR 122 CAL. APP.
3D., REGARDING HYPOTHETICAL QUESTIONS ASKED OF EXPERTS REGARDING
WHETHER THE DEFENDANT COULD HAVE DONE CERTAIN THINGS, IN THIS
CASE, A MURDER OF A CHILD, THE COURT WILL FIND THAT THERE IS NO
IMPROPRIETY IN DOING SO.
THESE ARE HYPOTHETICAL CIRCUMSTANCES. MR. SIMPSON'S
NAME HAS NOT BEEN USED. THERE ARE INFERENCES WITHIN THE RECORD
>FROM WHICH THE JURY CAN FIND THEY EXIST, AND SO EACH OF THE
CIRCUMSTANCES OF THIS HYPOTHETICAL -- AND THE DOCTOR IS BEING
ASKED ASSUMING THAT THESE HYPOTHETICAL CIRCUMSTANCES ARE TRUE,
HOW LONG THIS STRUGGLE MAY HAVE TAKEN.
THE COURT: MR. SHAPIRO.
MR. SHAPIRO: YES.
THERE IS NO EVIDENCE WHATSOEVER THAT THIS WAS DONE BY
ONE PERSON. HIS OPINION IS, IT COULD HAVE BEEN. HIS OPINION IS,
IT ALSO COULD NOT HAVE BEEN.
SO FAR, THE DOCTOR'S TESTIMONY CANNOT EXCLUDE ANY
HUMAN BEING ON THE FACE OF THE EARTH WHO IS CAPABLE OF HOLDING A
KNIFE AND COMMITTING THESE ACTS. AND THERE IS NO EVIDENCE OF
MOTIVATION OR RAGE. IN FACT, JUST THE OPPOSITE. THE EVIDENCE
THAT WE SHOWED OF MR. SIMPSON ON THE VIDEO SHOWS A VERY CALM
INDIVIDUAL.
THE COURT: WHY DON'T YOU TAKE OUT THE "RAGE" PART OF IT.
BUT I THINK THERE IS EVIDENCE IN THE RECORD THAT WOULD SUPPORT --
IF YOU BELIEVE THE BLOOD EVIDENCE, THAT WOULD SUPPORT AN
INFERENCE THAT IT'S THE DEFENDANT AT THE SCENE.
THERE'S ALSO A SINGLE SET OF FOOTPRINTS THAT WOULD
SUPPORT THE INFERENCE THAT THERE WAS ONLY ONE ASSAILANT INVOLVED.
SO I THINK THERE'S ENOUGH FACTS IN THE RECORD THAT WOULD SUPPORT
MR. KELBERG'S HYPOTHETICAL. BUT I DO FIND THE "RAGE" PART OF IT
TO BE NOT SUPPORTED BY THE RECORD AT THIS POINT.
MR. KELBERG: YOUR HONOR, COULD I ASK THE REPORTER TO READ
THE HYPOTHETICAL BACK AND ELIMINATE THE REFERENCE TO THE "RAGE"?
BECAUSE IF I TRY AND REFRAME THE QUESTION, BEING HUMAN, I WILL
NOT GET IT REFRAMED IN AN IDENTICAL FASHION WITH THE ONE
EXCEPTION OF THE COURT'S RULING. AND I BELIEVE IT WOULD BE A
BETTER WAY.
THE COURT: ALL RIGHT.
MR. KELBERG: TO COMPLY WITH THE COURT'S -- IF THE REPORTER
CAN IN FACT READ IT BACK WITHOUT THAT PART.
THE COURT: LET ME JUST --
MR. SHAPIRO: WE WOULD OBJECT TO THE TERM "MOTIVATED."
MR. COCHRAN: COULD WE HEAR IT UP HERE?
THE COURT: LET ME HAVE -- WE ARE CHARGING FIRST DEGREE
MURDER. LEAVE THE "MOTIVATED" OUT OF THERE.
I WAS JUST ASKING MRS. ROBERTSON TO CHECK WITH 165
BECAUSE HE WAS COUGHING AND WIPING HIS EYES, AND I JUST WANT TO
MAKE SURE --
(BRIEF PAUSE.)
THE COURT: LET'S HAVE THE COURT REPORTER READ BACK THE
QUESTION.
(BRIEF PAUSE.)
THE COURT: THE BAILIFF INDICATES THE JURORS WANT TO TAKE A
BREAK. THE JURORS WANT TO TAKE A BREAK.
****
(THE FOLLOWING PROCEEDINGS WERE
HELD AT THE BENCH:)
THE COURT: WE JUST HAD ANOTHER JUROR HAVE TO GET UP AND
LEAVE AND SHE APPEARED TO BE HAVING A HARD TIME, FROM THE
EXPRESSION ON HER FACE.
MR. COCHRAN: FROM WHAT I SAW WAS THAT SHE WAS POINTING
TOWARD THE BAILIFF, AND SHE IS THE ONE WHO IS ALWAYS JOVIAL AND
SMILING, AND SHE SEEMED AS THOUGH SHE WAS CLOSE TO TEARS AND SHE
STARTED POINTING TO THE BAILIFF AND SHE WENT LIKE THIS, FOR THE
RECORD, (INDICATING), THE TIME OUT SIGN LIKE A "T."
SO MAY I SUGGEST, YOUR HONOR, THIS MAY BE -- LET'S
SEE -- MAY BE A TIME TO END IT TODAY.
MR. KELBERG: YOU KNOW, YOUR HONOR, WITH AN EVENING'S REST,
IT MIGHT BE EASIER FOR THE JURORS.
THE COURT: IT HAS BEEN A LONG DAY.
MR. KELBERG: IT HAS BEEN A LONG DAY.
MR. COCHRAN: TOUGH DAY FOR THESE FOLKS.
MR. KELBERG: JUDGE, I WOULD GO UNTIL MIDNIGHT IF IT WAS A
MATTER OF JUST DOING IT, BUT I THINK THAT IT'S TOUGH STUFF FOR
ANY GROUP OF PEOPLE TO HAVE TO LISTEN TO FOR ANY PERIOD OF TIME.
THE COURT: ROBERT, YOU ARE --
MR. DARDEN: DOES THE BOARD HAVE TO BE THAT CLOSE TO THE
BOX?
MR. COCHRAN: LOOK AT ALTERNATE NO. 2.
MR. SHAPIRO: I DON'T THINK THIS JURY CAN CONCENTRATE.
MR. COCHRAN: LOOK AT 1386, YOUR HONOR, AND SHE HAD HER
EYES CLOSED.
THE COURT: 165 IS --
MR. KELBERG: WE CAN'T MOVE THE BOARD BACK.
THE COURT: ALL RIGHT. LET'S CALL IT A DAY.
