OJ Simpson Criminal Trial Transcripts – January 11, 1995

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 SOME POINT, I NEED TO KNOW WHAT SPECIFIC INCIDENTS THAT WE’RE TALKING ABOUT SO WE CAN PUT THIS ALL IN CONTEXT. THE MOVING PAPERS FILED BY THE DEFENSE ARE SIGNIFICANTLY MORE LIMITED IN SCOPE REGARDING THE NUMBER OF INCIDENTS WE’RE TALKING ABOUT OR ALLEGED INCIDENTS THAN THE PEOPLE’S. SO I’M JUST CONCERNED IN DEFINING THE SCOPE OF WHAT IT IS WE’RE TALKING ABOUT SO THAT I CAN UNDERSTAND AND FULLY APPRECIATE THE ARGUMENTS BEING MADE BY COUNSEL.

MR. GORDON: CERTAINLY WE PLAN TO IN OUR PRESENTATION NOT ONLY PROVIDE THE COURT WITH LEGAL ANALYSIS, BUT TO GO THROUGH AND SPECIFICALLY ANALYZE EVENTS FACTUALLY AND LEGALLY WITHIN OUR PRESENTATION WITHIN THAT REGARD. THAT’S WHY WE WOULD LIKE TO KEEP OUR PRESENTATION SOMEWHAT UNIFIED.

THE COURT: ALL RIGHT.

MR. GORDON: IT JUST MIGHT BE CLEANER, IF THAT’S OKAY WITH THE COURT.

THE COURT: ALL RIGHT. MR. UELMEN.

MR. UELMEN: I THINK YOUR HONOR’S CHART PROVIDES AN EXCELLENT REFERENCE POINT TO WORK THROUGH THIS. OF COURSE, OUR MOTION WAS PREPARED BACK IN NOVEMBER BASED ON THE DISCOVERY THAT HAD BEEN MADE AVAILABLE TO THE DEFENSE UP TO THAT POINT. AND SINCE THAT TIME, AS YOUR HONOR IS AWARE, A NUMBER OF ADDITIONAL ITEMS, STATEMENTS AND DOCUMENTS HAVE BEEN SUPPLIED TO THE DEFENSE AND REFERRED TO IN THE RESPONSE TO OUR MOTION BY THE PROSECUTION; AND IT’S VERY HELPFUL THAT YOUR HONOR’S LITTLE CHART INDICATES WHERE IN THE PLEADINGS EACH OF THESE ALLEGED INCIDENTS IS REFERRED TO AND IT’S IN CHRONOLOGICAL ORDER. SO I THINK WE CAN SIMPLY STICK TO THAT REGIMEN. IT WILL MAKE YOUR HONOR’S TASK A LOT EASIER IF WE JUST GO THROUGH EACH OF THESE ALLEGED INCIDENTS AS THEY ARE LAID OUT IN THAT CHRONOLOGY.

THE COURT: ALL RIGHT. THEN BEFORE YOU LAUNCH INTO THAT, TO GIVE CREDIT WHERE CREDIT IS DUE, THIS WAS PREPARED BY PEPPERDINE STUDENT LAW CLERK STEVE TYLER.

MR. UELMEN: THE CHRONOLOGY BEGINS WITH 1977. AND OF COURSE, I THINK THAT RIGHT AT THE OUTSET RAISES THE WHOLE ISSUE OF REMOTENESS, OF HOW FAR ARE WE GOING TO GO BACK IN TERMS OF THE ALLOWANCE OF EVIDENCE OF THIS NATURE IN TERMS OF THE POLICIES THAT WE OUTLINED OF PUTTING MR. SIMPSON IN THE DEFENSE OF HAVING TO DEFEND AGAINST UNCHARGED CONDUCT, OF THE RISK OF PREJUDICE OF THIS MATERIAL IN TERMS OF ITS VERY LIMITED RELEVANCE BEING GIVEN MORE WEIGHT THAN IT TRULY DESERVES. BUT I THINK ITEMS 1, 2, 3, 4, 5 AND 6 ALL COME DIRECTLY FROM THIS DOCUMENT THAT I JUST REFERRED TO THAT THE PEOPLE ARE CALLING A DIARY, WHICH REALLY ISN’T A DIARY, THIS MEMO THAT WAS PREPARED IN ORDER FOR — TO ASSIST THE LAWYER REPRESENTING MRS. SIMPSON IN THE DIVORCE PROCEEDINGS. SO THERE IS NO SOURCE PER PEOPLE’S WITNESSES FOR ANY OF THESE SIX ALLEGED INCIDENTS. THEY ARE ALL ALLEGATIONS THAT COME DIRECTLY FROM THE MEMORANDUM PREPARED BY THE VICTIM, WHO IS OF COURSE UNAVAILABLE FOR CROSS-EXAMINATION. SO I BELIEVE THE HEARSAY OBJECTION SHOULD DISPOSE OF ALL SIX OF THESE ITEMS. AND WE’RE STILL WAITING TO HEAR ANY PLAUSIBLE THEORY OF ANY EXCEPTION TO THE HEARSAY RULE WHICH WOULD ALLOW THE ADMISSION OF ANY OF THIS EVIDENCE. ITEM 7, THIS COMES FROM THE PROSECUTION RESPONSE SIMPLY SUMMARIZING EVIDENCE THAT THEY BELIEVE THEY CAN PRESENT THROUGH DENISE BROWN AND ED MC CABE THAT SOMETIME IN 1982 — AND AGAIN, WE DON’T KNOW WHEN THIS OCCURRED — THE DEFENDANT GRABBED THE VICTIM’S CLOTHES, BROKE SOME PICTURES AND THREW THEM OUT OF THE HOUSE. AGAIN, OF COURSE, THE DIFFICULTY OF DEFENDING AGAINST THIS ALLEGATION IS COMPOUNDED BY THE LACK OF ANY DATE OR EVEN APPROXIMATE DATE WHEN THIS OCCURRED. AND AS WITH ALL OF THESE INCIDENTS, I THINK WE NEED TO ASK OURSELVES HOW SIMILAR IS THIS TO WHAT HAPPENED ON JUNE 12TH, 1994. I MEAN HOW DOES — I MEAN EVEN IF WE ASSUME THIS TOOK PLACE AS DESCRIBED IN THE PEOPLE’S MOVING PAPERS, THAT IN THE COURSE OF AN ARGUMENT IN 1982, 12 YEARS BEFORE THIS MURDER TOOK PLACE, THAT THEY GOT INTO AN ARGUMENT AND HE THREW HER OUT OF THE HOUSE WITH HER CLOTHES, WHAT DOES THAT SHOW IN TERMS OF THE MOTIVE, INTENT OR IDENTITY OF THE PERPETRATOR OF THIS MURDER IN 1994? WE WOULD CONCLUDE THAT SECTION 1101(B) IS NOT SERVED BY THIS EVIDENCE AND THE POTENTIAL FOR PREJUDICE FAR OUTWEIGHS ANY PROBATIVE VALUE THAT IT WOULD HAVE. ITEM NUMBER 8 PRESENTS A VERY AMBIGUOUS STATEMENT BY — ATTRIBUTED TO A FORMER MAID WHO WAS EMPLOYED AT THE SIMPSON RESIDENCE WHO SIMPLY DESCRIBED AT SOME POINT IN 1984 OR 1985 — AGAIN, WE HAVE NO PRECISE DATE IN TERMS OF DEFENDING AGAINST THIS CHARGE — SHE SAW MRS. SIMPSON OUTSIDE THE HOUSE. THERE WAS NO STATEMENT MADE AS TO WHAT HAD HAPPENED. SHE WENT INTO THE HOUSE AND SAW A BUNCH OF BROKEN PICTURES ON THE FLOOR. WHAT INFERENCE WE’RE SUPPOSED TO DERIVE FROM THAT AND HOW THAT IS EVEN RELEVANT TO WHAT HAPPENED ON JUNE 12TH, 1994 IS LEFT TO OUR IMAGINATION. I MEAN EVEN IF WE INFER THAT IN A MOMENT OF ANGER 10 YEARS BEFORE, MR. SIMPSON BROKE SOME PICTURE FRAMES, WHAT DOES THAT TELL US IN TERMS OF ANYTHING THAT HAPPENED IN 1994? NUMBER 9 AND NUMBER 14 ARE CLOSELY RELATED IN THE SENSE THAT THE PERCIPIENT WITNESS WITH RESPECT TO THIS INCIDENT IS LOS ANGELES POLICE DEPARTMENT DETECTIVE MARK FUHRMAN. THERE IS NO CONTEMPORANEOUS POLICE REPORT WITH RESPECT TO THIS INCIDENT. IN FACT, WE ARE UNAWARE OF ANY CONTEMPORANEOUS ACCOUNT OF WHAT HAPPENED IN THIS ALLEGED INCIDENT AT ALL. WHAT WE HAVE IS A 1989 LETTER IN WHICH DETECTIVE FUHRMAN CLAIMS TO HAVE A VERY DETAILED MEMORY OF WHAT WAS SAID AND WHAT TOOK PLACE. AND THAT LETTER SUGGESTS THAT WHAT HE ENCOUNTERED WAS AN ARGUMENT RELATED TO DAMAGE DONE TO MRS. SIMPSON’S AUTOMOBILE BY MR. SIMPSON. AGAIN, WE DON’T KNOW WHEN THIS TOOK PLACE. IT MAY HAVE BEEN EVEN BEFORE MR. AND MRS. SIMPSON WERE ACTUALLY MARRIED. THE ALLEGATION IS THAT MR. SIMPSON TOOK A BASEBALL BAT AND DAMAGED MRS. SIMPSON’S AUTOMOBILE. AND THE CONCERN SHE EXPRESSED WAS, WHO WAS GOING TO PAY FOR FIXING UP HER CAR. THERE WAS NO PHYSICAL ASSAULT. THERE’S NOT ANY ALLEGATION OF ANY PHYSICAL ASSAULT. IT IS SIMPLY AN ARGUMENT ABOUT WHO IS GOING TO REPAIR A CAR. ONCE AGAIN, WHAT DOES THIS TELL US OR HOW DOES THIS ASSIST THE JURY IN DETERMINING WHAT TOOK PLACE ON JUNE 12TH, 1994? WHERE IS ANY SIMILARITY TO ANY OF THE EVIDENCE SURROUNDING THE EVENTS OF JUNE 12TH, 1994? AND OF COURSE, THE DANGER OR THE RISK OF PREJUDICE OF THIS BEING USED SIMPLY TO COME TO THE CONCLUSION THAT MR. SIMPSON HAS A BAD TEMPER OR MR. SIMPSON IS A BAD MAN; THEREFORE, IT’S MORE LIKELY HE COMMITTED THIS CRIME IS A VERY GRAVE ONE IN THE CONTEXT OF AN INCIDENT LIKE THIS, ESPECIALLY AN INCIDENT AS MUCH AS 10 YEARS OLD. ITEM NUMBER 10 ON YOUR HONOR’S LIST REFERS TO — EXCUSE ME.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

MR. UELMEN: ITEM NUMBER 10 REFERS TO AN INCIDENT ALLEGEDLY TAKING PLACE IN SEPTEMBER OF 1986 IN WHICH MRS. SIMPSON WAS TREATED AT A HOSPITAL FOR INJURIES RELATED TO A BICYCLE ACCIDENT. AND THE PEOPLE HAVE REFERRED TO THE TESTIMONY OF A DR. MARTIN ALPERT, WHO THEY PROPOSE TO PRESENT TO EXPRESS SOME RESERVATIONS HE HAD AS TO WHETHER IN FACT THE INJURIES WERE OBTAINED IN THAT MANNER. THE DIFFICULTY OF COURSE WITH THIS — AND THIS IS GOING TO PRESENT A VERY SUBSTANTIAL 402, 403 QUESTION FOR THE COURT TO RESOLVE BEFORE THIS EVIDENCE IS PRESENTED TO A JURY WITH RESPECT TO WHETHER ANY INFERENCE CAN BE DRAWN FROM THE OPINION OF DR. ALPERT APPARENTLY BASED ON HIS RECOLLECTION OF WHAT HAPPENED NINE YEARS AGO. THE MEDICAL RECORDS AND X-RAYS HAVE BEEN DESTROYED. THE PHOTOGRAPHS OF COURSE OFFER NO ILLUMINATION OF WHAT ACTUALLY HAPPENED PRECEDING THESE INJURIES. THERE IS NO BASIS PRESENTED WHATSOEVER TO DOUBT THE ACCOUNT OF HOW THESE INJURIES ACTUALLY TOOK PLACE THAT WAS PRESENTED TO THE DOCTOR AT THE TIME THE TREATMENT TOOK PLACE. SO WITH RESPECT TO THAT INCIDENT OR ALLEGED INCIDENT, WE HAVE TWO PROBLEMS. FIRST IS A PROBLEM OF PROOF IN TERMS OF HOW ANY INFERENCE THAT THE PEOPLE WANT TO DRAW FROM THIS EVIDENCE WILL BE JUSTIFIED BY THE EVIDENCE THEY PROPOSE TO PRESENT; AND SECONDLY, EVEN IF THAT INFERENCE IS JUSTIFIED, WHAT IT PROVES IN TERMS OF THE EVENTS THAT TOOK PLACE ON JUNE 12TH, 1994. IF ALL IT PROVES IS THAT SOME EFFORT WAS MADE TO CONCEAL THE TRUE NATURE OF INJURIES THAT WERE SUSTAINED BY MRS. SIMPSON IN 1986, WHAT DOES THAT PROVE IN TERMS OF WHAT TOOK PLACE IN 1994? IT DOESN’T SHOW THE IDENTITY. IT DOESN’T SHOW ANY MOTIVE. IT DOESN’T KNOW ANY INTENT WITH RESPECT TO THE ISSUES THAT WE HAVE TO ADDRESS IN TERMS OF WHAT HAPPENED IN 1994. NOW, I MAY HAVE SOME ADDITIONAL QUESTIONS TO RAISE ABOUT THESE ALLEGATIONS AFTER I’VE HAD AN OPPORTUNITY TO CONFER WITH COCOUNSEL. BUT I’LL KEEP GOING SO WE CAN GET THROUGH AS MUCH AS WE CAN BEFORE THE LUNCHEON RECESS. INCIDENTS 11 AND 12 AGAIN ARE RANK HEARSAY. THE ONLY SOURCE OF ANY INFORMATION ABOUT EITHER OF THESE ALLEGATIONS COMES FROM THAT SUPPOSED DIARY. AND AGAIN, NO PLAUSIBLE THEORY OF ANY EXCEPTION TO THE HEARSAY RULE HAS BEEN PRESENTED BY THE PEOPLE. WITH RESPECT TO ITEM NUMBER 13, THIS OF COURSE IS THE ONE INCIDENT THAT ACTUALLY WAS BROUGHT TO COURT AND RESULTED IN A CRIMINAL CONVICTION OF THE DEFENDANT BASED ON HIS PLEA OF NO CONTEST TO A CHARGE OF ASSAULTING MRS. SIMPSON. AND WITH RESPECT TO THIS INCIDENT, WE HAVE POLICE REPORTS, WE HAVE ACCOUNTS IN THE FORM OF LETTERS OF EXPLANATION WRITTEN BY THE DEFENDANT HIMSELF, INTERVIEWS AND A GOOD DEAL OF INFORMATION ABOUT WHAT ACTUALLY TOOK PLACE. AND WHAT APPARENTLY TOOK PLACE WAS THAT AT THE CONCLUSION OF A NEW YEAR’S CELEBRATION IN WHICH BOTH MR. SIMPSON AND NICOLE SIMPSON HAD A LOT TO DRINK, THEY GOT INTO AN ARGUMENT IN THEIR BEDROOM. AND THE CULMINATION OF THAT ARGUMENT WAS A PHYSICAL ASSAULT IN WHICH MR. SIMPSON ADMITTED THAT HE SLAPPED AND PUNCHED NICOLE BROWN SIMPSON. SHE THEN CALLED THE POLICE. THERE WAS A POLICE INTERVENTION, AND THE CULMINATION OF THAT INTERVENTION WAS THE FILING OF A CHARGE TO WHICH MR. SIMPSON ENTERED A NO CONTEST. HE WAS PLACED ON PROBATION ON THE CONDITION THAT HE UNDERGO COUNSELING. HE FULFILLED ALL OF THE CONDITIONS OF THAT PROBATION. AND HERE, ONCE AGAIN, WE SIMPLY ASK, WHAT’S THE RELEVANCE OF THAT IN TERMS OF WHAT HAPPENED ON JUNE 12TH, 1994? WHERE IS THERE ANY SIMILARITY BETWEEN A BEDROOM ARGUMENT IN WHICH BOTH PARTIES HAD BEEN DRINKING AND THE ARGUMENT ESCALATES INTO A SLAPPING INCIDENT AND THE SLASHING OF TWO PEOPLE’S THROATS ON A SIDEWALK ON JUNE 12TH, 1994? HOW CAN WE DRAW ANY INFERENCE THAT BOTH OF THESE INCIDENTS WERE DONE OR BOTH OF THESE EVENTS WERE DONE WITH THE SAME INTENT, WITH THE SAME MOTIVE OR BY THE SAME PERSON? WHERE IS THERE ANY RELEVANCE IN TERMS OF ASSISTING THE JURY IN DETERMINING WHO KILLED NICOLE BROWN SIMPSON, WHO KILLED RONALD GOLDMAN TO KNOW THAT FIVE YEARS BEFORE, AFTER A NEW YEAR’S PARTY, MR. SIMPSON AND HIS WIFE GOT INTO AN ARGUMENT? IT SIMPLY DOES NOTHING IN TERMS OF THE TASK THAT FACES THIS JURY WHILE THE RISK OF PREJUDICE IS OVERWHELMING. THE RISK THAT THEY WILL DRAW IS SIMPLY AN INFERENCE OF BAD CHARACTER, BAD TEMPER AND ASSUME BASED ON THAT INFERENCE THAT IT’S MORE LIKELY THAT MR. SIMPSON IS THE PERPETRATOR OF THIS MURDER. AND FOR THAT PURPOSE, WE WOULD CONTEND IT SIMPLY HAS NO RELEVANCE WHATSOEVER. ITEM NUMBER 15, THE WRITING OF A LETTER RELATING TO THE PRENUPTIAL AGREEMENT, AGAIN, WE’RE NOT AWARE OF WHAT RELEVANCE THAT WOULD HAVE ALTHOUGH IT WOULD COME WITHIN A HEARSAY EXCEPTION SINCE IT WAS WRITTEN BY THE DEFENDANT. BUT WHAT DOES IT PROVE? WHAT DOES IT PROVE IN TERMS OF WHAT TOOK PLACE IN 1994? ITEM NUMBER 16, THE — AGAIN, SIMPLY A STATEMENT BY THE VICTIM TO SOME THIRD PERSON WHICH IS HEARSAY. NO HEARSAY SUGGESTION IS SUGGESTED. CERTAINLY THE VICTIM’S STATE OF MIND IN 1989 IS NOT RELEVANT TO ANY QUESTION WITH RESPECT TO EVENTS TAKING PLACE FIVE YEARS LATER. AND EVEN, AS WE’VE ALREADY ARGUED, STATE OF MIND FIVE YEARS LATER IS IRRELEVANT, THAT IT’S NOT GOING TO BE AN ISSUE IN THIS CASE. SO WE BELIEVE THAT THIS EVIDENCE SHOULD BE EXCLUDED SIMPLY BECAUSE IT IS HEARSAY. WOULD THIS BE A CONVENIENT POINT TO TAKE OUR RECESS?

THE COURT: ALL RIGHT. COUNSEL, WE’LL TAKE OUR NOON HOUR RECESS AT THIS TIME. WE WILL RECONVENE PROMPTLY AT 1:30. THANK YOU, COUNSEL.

(AT 11:55 A.M., THE NOON RECESS WAS TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)

LOS ANGELES, CALIFORNIA; WEDNESDAY, JANUARY 11, 1995 1:40 P.M.

DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE

APPEARANCES: (APPEARANCES AS HERETOFORE NOTED.)

(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.)

(CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: ALL RIGHT. MR. SHAPIRO, ARE WE READY TO START?

MR. SHAPIRO: YES, WE ARE.

THE COURT: BACK ON THE RECORD IN THE SIMPSON MATTER. MR. SIMPSON IS AGAIN PRESENT WITH COUNSEL, MR. SHAPIRO, MR. COCHRAN, MR. BAILEY, MR. UELMEN. THE PEOPLE ARE REPRESENTED BY MR. GORDON, MISS BODIN AND MR. GOLDBERG. MR. UELMEN, WE WERE AT ITEM NO. 16 ON THE CHART PREPARED BY STEVEN GOLUB.

MR. UELMEN: YOUR HONOR —

MS. BODIN: RESPECTFULLY, MAY WE JUST BRIEFLY INTERRUPT FOR A MOMENT? THE PEOPLE WOULD LIKE TO MAKE A MOTION WITH REGARD TO THE ADDENDUM TO THEIR STATEMENT. IN ADDITION, WE HAVE A WITNESS BY THE NAME OF DONALD G. DUTTON, AND HIS CURRICULUM VITAE HAS BEEN PROVIDED TO THE DEFENSE AND HE IS PRESENT IN THE COURT. WE WOULD LIKE HIM TO REMAIN DURING THE COURSE OF THIS HEARING AND I DO HAVE THE CURRICULUM VITAE RIGHT NOW. WOULD THE COURT LIKE TO SEE IT?

THE COURT: DO YOU HAVE A COPY FOR COUNSEL?

MR. GORDON: YES, COUNSEL HAS IT. WOULD THE COURT LIKE A COPY ALSO?

THE COURT: YES.

MS. BODIN: WITH REGARD TO THE MOTION THAT THE PEOPLE WANT TO MAKE IN TERMS OF ADDING INTO THEIR ALLEGED INCIDENTS OF ABUSE, THERE WAS INFORMATION TODAY THAT WAS RECEIVED BY THE COURT FROM SOJOURN AND WE WOULD LIKE TO BE ABLE TO ADDRESS THAT IN OUR MOTION BEFORE THE COURT. WHAT WE WOULD LIKE TO DO IS ADDRESS IT FACTUALLY AND THEN PERHAPS SAVE THE LEGAL ARGUMENT SOMEWHERE TOWARD THE END SO COUNSEL HAS AN OPPORTUNITY TO PREPARE LEGALLY ON THAT ISSUE.

THE COURT: ALL RIGHT. ALL RIGHT. MR. UELMEN.

MR. UELMEN: THANK YOU, YOUR HONOR. IF WE GO BACK TO THE CHRONOLOGY — AND I THINK IT IS IMPORTANT TO EMPHASIZE THAT WE ARE NOT TALKING ABOUT 59 DISCREET INCIDENTS, WE ARE JUST TALKING ABOUT A CHRONOLOGY THAT TRIES TO PUT EVERYTHING IN CHRONOLOGICAL ORDER, SOME OF WHICH DOESN’T REALLY RELATE TO ANY INCIDENT AT ALL, BUT IS SIMPLY AN EVENT, SUCH AS THE FACT THAT MR. SIMPSON AND HIS WIFE INITIATED DIVORCE PROCEEDINGS IN JANUARY OF ’92 — I DON’T THINK WE NEED TO TALK ABOUT THAT. THAT, WE ASSUME, WILL BE ADMISSIBLE IN EVIDENCE AND IS REALLY TOTALLY IRRELEVANT IN TERMS OF ANY CHARACTER EVIDENCE PROVING ANYTHING WITH RESPECT TO THE EVENTS IN ISSUE IN THIS CASE. GOING BACK TO WHERE WE LEFT OFF, WHICH WAS ITEM NO. 17, I THINK HERE WE SIMPLY HAVE AN EXAMPLE OF THE EXTENT TO WHICH THE — THE PROSECUTION HAS KIND OF PULLED OUT ALL THE STOPS, GONE TO THE HIGHWAYS AND BYWAYS AND ATTEMPTED TO GATHER TOGETHER ANYONE WHO COULD EVER SAY ANYTHING BAD ABOUT MR. SIMPSON IN THE COURSE OF THE LAST 17 YEARS. ALFRED ACOSTA WAS SIMPLY THE DRIVER OF AN AUTOMOBILE WHO TOOK MR. SIMPSON AND HIS WIFE HOME ONE EVENING. WE DON’T KNOW WHEN THAT EVENING WAS. WE ARE TOLD IT COULD HAVE BEEN ANY TIME IN 1988 OR 1989, SO WE HAVE A SPECTRUM OF 300 — 720 DAYS THAT WE ARE SUPPOSED TO WORK FROM. APPARENTLY, ACCORDING TO MR. ACOSTA’S STATEMENT, THEY HAD BEEN DRINKING, AND WHILE HE IS DRIVING THE CAR ALONG, ALLEGEDLY, HE BELIEVES THAT MR. SIMPSON HIT MR. — MRS. SIMPSON IN THE BACK OF THE LIMOUSINE. NOW, WHAT DOES THAT DO FOR US IN TERMS OF WHAT HAPPENED IN JUNE OF 1994? WHAT DOES THAT TELL US? WHAT DOES THAT TELL US ABOUT ANY OF THE RELEVANT FACTS THAT WE ARE STRUGGLING WITH IN THIS CASE? AND TO SAY TO MR. SIMPSON AT THIS POINT IN THESE PROCEEDINGS COME UP WITH SOME SORT OF EXPLANATION OR DEFENSE OF WHAT HAPPENED IN THE BACK OF AN AUTOMOBILE EIGHT — SEVEN, EIGHT YEARS AGO, AND WE ARE NOT GOING TO TELL YOU WHEN IT HAPPENED, IS AN INSURMOUNTABLE TASK FACING THE DEFENSE, AND I JUST WANT TO UNDERSCORE THE EXTENT TO WHICH MUCH OF WHAT IS IN THIS CHRONOLOGY IS OF THE SAME NATURE. ITEM 18. HERE WE ARE TOLD OF AN INCIDENT OF WHAT IS DESCRIBED AS VERBAL ABUSE IN A BAR. AND THIS MIGHT BE A GOOD MOMENT TO TALK ABOUT VERBAL ABUSE. VERBAL ABUSE IS A NICE EUPHEMISM FOR AN ARGUMENT, AND TO SAY THAT EVERY TIME A MARRIED COUPLE GETS INTO AN ARGUMENT, THAT IS ABUSE OR VERBAL ABUSE, BECAUSE THEY HURL CRUEL WORDS AT EACH OTHER AND THAT SOMEHOW BECOMES RELEVANT TO PROVE SOMETHING IN A SUBSEQUENT CRIMINAL CASE, RAISES A SUBSTANTIAL QUESTION FOR THE COURT. AND THE QUESTION IS NOT JUST IN THE CONTEXT OF THE DICTA IN PEOPLE VERSUS ZACK WHICH SAYS ONLY PHYSICAL ASSAULTS BECOME ADMISSIBLE EVEN UNDER THE BROADEST CONCEPTION OF THE RULE IMAGINABLE, BUT IT ALSO IS RELEVANT BECAUSE ABUSE IS DEFINED AND IT IS DEFINED WITHIN THE EVIDENCE CODE. SECTION 1107 USES THE WORD “ABUSE,” AND IT SAYS:

“WHEN WE USE THE WORD ‘ABUSE’ WE WANT IT TO HAVE THE SAME MEANING AS SECTION 6203 OF THE FAMILY CODE.” AND HERE IS HOW SECTION 6203 OF THE FAMILY CODE DEFINES ABUSE. IT SAYS:

“‘ABUSE’ MEANS INTENTIONALLY OR RECKLESSLY TO CAUSE OR ATTEMPT TO CAUSE BODILY INJURY OR SEXUAL ASSAULT OR TO PLACE A PERSON IN REASONABLE APPREHENSION OF IMMINENT SERIOUS BODILY INJURY TO THAT PERSON OR TO ANOTHER.” SO THERE IS THE DEFINITION, THE LEGAL DEFINITION OF ABUSE THAT IS INCORPORATED IN THE EVIDENCE CODE, AND IT DOESN’T SAY ANYTHING ABOUT VERBAL ABUSE OR ARGUMENTS IN TERMS OF THEIR BEING CHARACTERIZED AS ABUSE, MUCH LESS IN TERMS OF THEIR BEING RELEVANT TO PROVE ANYTHING THAT IS GOING TO BE DISPUTED IN THIS CASE. THIS INCIDENT IN 1989, AGAIN WE ARE GIVEN AN INCIDENT WITHOUT ANY INDICATION OF WHEN IT TOOK PLACE, OTHER THAN WITHIN — SOMETIME WITHIN A PERIOD OF A YEAR, APPARENTLY INVOLVED AN EVENT IN WHICH SIX DIFFERENT PEOPLE WERE GETTING IN AND OUT OF AN AUTOMOBILE, AND IF THIS IS GOING TO BE A REAL ISSUE THAT SOMEHOW AN ARGUMENT ABOUT WHO IS GOING TO DRIVE A CAR AND WHO IS GOING TO GET IN WHICH OF TWO DIFFERENT CARS PROVES SOMETHING ABOUT HOW THIS MURDER TOOK PLACE IN JUNE OF 1994, THINK ABOUT HOW MUCH TIME WE ARE GOING TO HAVE TO SPEND IN THIS COURTROOM LITIGATING AMONG SIX DIFFERENT VERSIONS. AND I CAN ASSURE YOU, THERE WILL BE DIFFERENT VERSIONS FROM DIFFERENT WITNESSES OF WHAT TOOK PLACE IN TERMS OF WHO PUSHED WHO AND WHO GOT IN WHAT CAR AND WHO DROVE AWAY IN THAT CAR. AND THE QUESTION SIMPLY IS WHERE DOES THAT GET US? WHAT DOES IT PROVE IN TERMS OF WHAT HAPPENED ON JUNE 12, 1994? ITEM NO. 19 IS AGAIN A SIMPLE EXAMPLE OF RANK HEARSAY, OF SOMETHING THAT NICOLE BROWN SIMPSON ALLEGEDLY SAID TO SOMEBODY ELSE IN 1991, AND AGAIN WE HAVE NO PLAUSIBLE EVEN SUGGESTION OF ANY HEARSAY EXCEPTION THAT WOULD MAKE THAT ADMISSIBLE IN THESE PROCEEDINGS. ITEM 20. ITEM 20, THE SOURCE IDENTIFIED IS EDDIE REYNOZA, AN ACTOR APPARENTLY WHO ALLEGES HE WAS ON A SET WITH MR. SIMPSON IN MAY OF 1991, AND THEY TALKED ABOUT CARS AND MR. SIMPSON ALLEGEDLY SAID THAT IF HE FOUND ANY OF HIS WIFE’S BOYFRIENDS DRIVING ONE OF HIS CARS HE WOULD CUT THEIR HEADS OFF — CUT THEIR FUCKING HEADS OFF. OF COURSE THERE IS GOING TO BE A REAL CREDIBILITY ISSUE ABOUT WHETHER THAT WAS ACTUALLY SAID. MR. REYNOZA APPARENTLY IS ONE OF THOSE CHARACTERS ON THE FRINGES OF THIS CASE WHO IS ADVANCING HIS OWN FILM CAREER BY ASSIGNING HIMSELF A STARING ROLE IN THE CASE OF PEOPLE VERSUS O.J. SIMPSON, AND APPARENTLY HE HAS ATTEMPTED TO DO THIS IN OTHER CASES AS WELL, SO WE ARE GOING TO HAVE A REAL FIGHT ABOUT THE CREDIBILITY OF MR. REYNOZA. BUT BEFORE WE EVEN GET TO THAT FIGHT, I THINK WE HAVE GOT TO ADDRESS THE ISSUE OF RELEVANCE. I MEAN, EVEN IF WE ASSUME THAT A STATEMENT OF THIS NATURE WAS MADE IN MAY OF 1991, THE FACT THAT MR. SIMPSON IS SAYING HE DOESN’T WANT BOYFRIENDS DRIVING HIS — HIS WIFE’S CAR OR ONE OF HIS CARS, WHAT DOES THAT TELL US OR WHAT DOES THAT PROVE IN TERMS OF A MOTIVE FOR THIS MURDER? I MEAN, IS THE PROSECUTION SAYING THAT THE REASON THESE TWO PEOPLE WERE MURDERED WAS BECAUSE SOMEONE WAS DRIVING ONE OF MR. SIMPSON’S CARS? WHAT DOES IT TELL US ABOUT THE INTENT WITH WHICH THIS MURDER WAS COMMITTED OR THE IDENTITY OF THE PERPETRATOR? IT TELLS US ABSOLUTELY NOTHING. WHAT IT TELLS US IS IF WE WILL BELIEVE IT, MR. SIMPSON ON OCCASION WOULD USE THE WORD “FUCK” AND ON OTHER OCCASIONS HE WOULD GET ANGRY. IS THAT THE KIND OF EVIDENCE ON WHICH WE WANT THIS JURY TO MAKE A DETERMINATION OF WHETHER A MAN SHOULD BE CONVICTED OF MURDER? 21. AGAIN THIS JUST — WE’LL CONCEDE THAT. MR. SIMPSON AND HIS WIFE DID INITIATE DIVORCE PROCEEDINGS IN JANUARY OF 1992 AND WE MIGHT NOTE THAT IT WAS AN UNUSUALLY AMICABLE DIVORCE. THE DIARY THAT WE HAVE REFERRED TO THAT MRS. SIMPSON ALLEGEDLY WROTE OUT WAS NEVER USED. IT WAS NEVER OFFERED IN EVIDENCE IN THAT PROCEEDING. IN FACT, MRS. SIMPSON NEVER TESTIFIED IN THAT PROCEEDING. AN AGREEMENT WAS WORKED OUT. THERE WERE NEVER ANY RESTRAINING ORDERS. WHEN WE LOOK AT WHAT WAS OBVIOUSLY A BUMPY MARRIAGE WITH SOME HIGH POINTS AND SOME LOW POINTS, I THINK IT IS QUITE REMARKABLE THAT IT WAS RESOLVED IN AS AMICABLE A WAY AS IT WAS. ITEM 22. AGAIN WE HAVE A NUMBER OF INCIDENTS THAT ALL TIE INTO THE TESTIMONY OF ONE WITNESS, AND THAT WITNESS IS KEITH ZLOMSOWITCH, AND THE EVIDENCE APPARENTLY IS GOING TO SHOW THAT IN EARLY 1992, WHILE THE DIVORCE PROCEEDINGS WERE GOING ON BETWEEN MR. SIMPSON AND HIS WIFE, SHE HAD AN AFFAIR WITH THIS MAN, KEITH ZLOMSOWITCH, WHO WAS THE MANAGER OF THE MEZZALUNA RESTAURANT AND WHOM SHE HAD MET IN ASPEN. AND THE KEY INCIDENT HERE IS NO. 24. IN APRIL OF 1992 THE PROSECUTION WILL CONTEND THAT MR. SIMPSON VISITED THE PREMISES WHERE MRS. SIMPSON WAS THEN RESIDING AND THROUGH THE FRONT WINDOW, FROM A VANTAGE POINT EQUALLY ACCESSIBLE TO ANYONE STANDING ON THE FRONT SIDEWALK, HE ACTUALLY OBSERVED MRS. SIMPSON AND MR. ZLOMSOWITCH ENGAGED IN SEXUAL ACTIVITY. AND WHAT HAPPENED? NOTHING. HE DID NOT INTERRUPT THEM. HE RETURNED TO THE PREMISES THE NEXT DAY, EXPRESSED HIS CONCERN ABOUT THIS ACTIVITY TAKING PLACE WHILE HIS CHILDREN WERE ASLEEP UPSTAIRS AND SUGGESTED THAT THAT KIND OF ACTIVITY WAS NOT APPROPRIATE IN THE PRESENCE OF HIS CHILDREN. HE ACTUALLY SHOOK HANDS WITH MR. ZLOMSOWITCH AND EXPRESSED NO HARD FEELINGS. WHAT IS THAT GOING TO PROVE? I MEAN, IF THE THEORY THAT THE PROSECUTION WANTS TO PRESENT WITH RESPECT TO THIS MURDER ON JUNE 12, 1994, WAS THAT THIS WAS SOME SORT OF ACT OF RAGE INVOLVING JEALOUSY, THEN THIS INCIDENT IN 1992 REALLY UNDERCUTS THAT THEORY. IN EFFECT IT SHOWS THAT MR. SIMPSON, EVEN OBSERVING HIS WIFE ENGAGED IN SEXUAL ACTIVITY WITH ANOTHER MAN, DID NOT BECOME BALLISTIC, DID NOT INTERRUPT THEM, DID NOT PHYSICALLY ASSAULT ANYONE. IN FACT, ALL OF THIS EVIDENCE WITH RESPECT TO ZLOMSOWITCH INVOLVES NO ALLEGATION OF ANY PHYSICAL ASSAULT WHATSOEVER. IT IS SIMPLY A REMARKABLY CIVIL REACTION TO A RATHER OUTRAGEOUS CIRCUMSTANCE. AND IN TERMS OF INFERRING FROM THAT ANY INTENT, MOTIVE OR IDENTITY OF THE PERPETRATOR OF THE 1994 MURDER, IT SIMPLY DOESN’T CUT IT. IT DOESN’T GET US ANYWHERE IN TERMS OF RESOLVING THE ISSUES WE HAVE TO RESOLVE IN THIS CASE. THE ITEMS NO. 22 AND 23. WITH RESPECT TO MR. ZLOMSOWITCH TESTIFYING THAT ON PRIOR OCCASIONS HE HAD BEEN AT A RESTAURANT AND OBSERVED MR. SIMPSON AT THE SAME RESTAURANT AND MR. SIMPSON ON ONE OCCASION TOLD HIM THAT MRS. SIMPSON WAS STILL HIS WIFE AND ON ANOTHER OCCASION ALLEGEDLY STARED AT HIM, AGAIN, JUST ASSUMING THAT THESE EVENTS TOOK PLACE, WHAT RELEVANCE DO THEY HAVE? WHAT DO THEY TELL US IN TERMS OF ANY MOTIVE OR INTENT REGARDING THE 1994 MURDER? THEY MAY TELL US SOMETHING ABOUT THE 1992 INCIDENT IN WHICH MR. ZLOMSOWITCH WAS ENGAGED IN SEXUAL ACTIVITY WITH MRS. SIMPSON, BUT THEY DON’T TELL US ANYTHING ABOUT WHAT IS GOING ON TWO YEARS LATER IN 1994. ITEM 26. IN OCTOBER OF 1992, MR. AND MRS. SIMPSON WERE LEGALLY DIVORCED. AGAIN, THERE IS NO DISPUTE ABOUT THAT. IT REALLY HAS LIMITED RELEVANCE IN TERMS OF THE EVENTS OF THIS CASE. NO. 27. THERE ARE A NUMBER OF ITEMS ON THIS LIST WHERE MR. SIMPSON REPORTEDLY CALLS MRS. SIMPSON’S MOTHER, JUDITHA BROWN IS THE MOTHER OF NICOLE BROWN SIMPSON, AND HAS CONVERSATIONS WITH HER ABOUT THE STATUS OF HIS RELATIONSHIP WITH MRS. SIMPSON. THIS IS WHILE THE DIVORCE IS GOING ON. IT DOESN’T STRIKE ME AS AT ALL UNUSUAL THAT THERE WOULD BE THIS KIND OF FAMILY CONVERSATION ABOUT THE DIVORCE PROCEEDINGS AND ABOUT THE FEELINGS OF THE PARTIES THAT ARE ENGENDERED BY THOSE PROCEEDINGS, BUT AGAIN, WHAT RELEVANCE DOES IT HAVE? WHERE DOES IT GET US IN TERMS OF ESTABLISHING ANY MOTIVE OR INTENT WITH RESPECT TO THIS — TO THIS MURDER? IT SIMPLY EXPLAINS THE PARTY’S REACTION TO THE DIVORCE THAT THEY ARE GOING THROUGH, AND THOSE REACTIONS APPEAR TO BE QUITE NORMAL, QUITE NATURAL AND REALLY PROVIDE NO ADDITIONAL CIRCUMSTANTIAL EVIDENCE OF ANY — ANY MOTIVE OR INTENT. AGAIN, ITEM 28. NO QUESTION ABOUT THIS. MR. AND MRS. SIMPSON DID ATTEMPT A RECONCILIATION BEGINNING IN MARCH OF 1993. ITEM 29. AGAIN WE ARE BACK TO ALLEGATIONS OF VERBAL ABUSE, THAT THERE WAS AN ARGUMENT OUTSIDE THE CALIFORNIA SUSHI BAR, AND AGAIN THERE WILL BE DIFFERENT VERSIONS OF THIS ARGUMENT. IN FACT, FAYE RESNICK AND CHRISTIAN REICHARDT, THE ONLY TWO WITNESSES THAT ARE IDENTIFIED HERE, THEMSELVES HAD VERY DIFFERENT VERSIONS ABOUT WHAT HAPPENED. THE WITHDRAWAL OF FAYE RESNICK AS A WITNESS I THINK RAISES ADDITIONAL QUESTIONS ABOUT OFFERING THIS IN EVIDENCE IF THERE ARE DIFFERING VERSIONS, AND THE PROSECUTION IS ONLY GOING TO PRESENT ONE, WITHOUT PRESENTING THE OTHER WITNESS WHO HAD A DIFFERENT VERSION OF WHAT HAPPENED. I THINK THAT RAISES A FUNDAMENTAL QUESTION ABOUT WHETHER WE WILL EVER BE ABLE TO SORT OUT WHAT REALLY HAPPENED. BUT ONE THING WE KNOW DID NOT HAPPEN. THERE WAS NO PHYSICAL ABUSE. THIS WAS AN ARGUMENT TAKING PLACE IN FRONT OF A RESTAURANT. THE PARTIES GOT IN A CAR AND DROVE AWAY. AND WHAT DOES THAT TELL US IN TERMS OF WHAT HAPPENED IN JUNE OF 1994? ABSOLUTELY NOTHING. ITEM 30 AND 31 RELATE TO THE TESTIMONY OF TWO NEIGHBORS WHO LIVED NEXT DOOR TO MRS. SIMPSON BEFORE SHE MOVED TO THE BUNDY ADDRESS. THIS IS ON THE GRETNA GREEN ADDRESS, AND THESE NEIGHBORS REPORT SEEING MR. SIMPSON OUTSIDE THE PREMISES LOOKING IN THE WINDOWS OF NICOLE BROWN SIMPSON’S AND THE TIMING FROM THEIR STATEMENTS AS TO WHEN THIS TOOK PLACE IS AT THE TIME OF THE RELATIONSHIP WITH MR. ZLOMSOWITCH, SO WE BELIEVE THAT WHAT IS BEING DESCRIBED HERE IS NOT SOMETHING THAT TOOK PLACE IN 1993, BUT RELATES TO THE SAME INCIDENT, NO. 24, THAT WILL BE PRESENTED IN MR. ZLOMSOWITCH’S TESTIMONY. WHY WAS MR. SIMPSON NEAR THE PREMISES OF MRS. SIMPSON? I MEAN, WHAT DOES THIS PROVE, THE FACT THAT HE WOULD OCCASIONALLY BE SEEN AT THE HOME WHERE MRS. SIMPSON WAS LIVING? I THINK WE NEED TO REMEMBER THAT UNDER THE TERMS OF THE DIVORCE IN 1992, THEY WERE AWARDED JOINT CUSTODY OF THE CHILDREN, AND THE CHILDREN WERE WITH MRS. SIMPSON, SO OBVIOUSLY HE WOULD HAVE FREQUENT OCCASION TO VISIT THE PREMISES WHERE MRS. SIMPSON WAS LIVING, TO VISIT HIS CHILDREN. THE COLBYS ALSO REPORTED, AND THIS IS IN YOUR SUMMARY, THAT THEY OBSERVED THE DEFENDANT WOULD OFTEN LEAVE FLOWERS AT THE DOOR OF MRS. SIMPSON’S HOME. WHAT DOES THAT TELL US IN TERMS OF WHAT HAPPENED IN JUNE OF 1994, THAT ON PRIOR OCCASIONS, WHEN THEY WERE ATTEMPTING A RECONCILIATION IN THEIR MARRIAGE, MR. SIMPSON DELIVERED FLOWERS PERSONALLY TO THE HOME OF MRS. SIMPSON? IT DOESN’T GET US VERY FAR IN TERMS OF RESOLVING ANY ISSUES IN THIS CASE. ITEM 32 IS APPARENTLY THE SAME AS ITEM 35. I MEAN, IT JUST REPORTS SOME GENERAL STATEMENTS BY VARIOUS PEOPLE DESCRIBING WHAT HAPPENED IN THE 1993 911 INCIDENT, THAT MR. SIMPSON BARGED INTO MRS. SIMPSON’S HOME AND YELLED AT HER, THAT THERE WAS A DISCUSSION ABOUT NARCOTIC USAGE BY KATO KAELIN, THAT THERE WAS A DISCUSSION OF THE ZLOMSOWITCH INCIDENT. ALL OF THAT APPARENTLY RELATES TO THE OCTOBER, 1993, INCIDENT THAT IS ITEMIZED AS ITEM 35, AND I WILL GET TO THAT IN A MOMENT. ITEM 33, AGAIN MORE UNCORROBORATED RANK HEARSAY, JUST AN ALLEGATION THAT AT SOME POINT IN 1993, AND WE ARE NOT TOLD WHEN, MRS. SIMPSON MADE A STATEMENT TO SOME OTHER PERSON ABOUT HER BELIEF THAT MR. SIMPSON WAS — WAS FOLLOWING HER. THAT IS HEARSAY. WE CAN’T CROSS-EXAMINE IT. AND ANY STATE OF MIND IN 1993, MUCH LESS IN 1994 WHEN THIS HAPPENED, IS NOT GOING TO BE AN ISSUE IN THIS CASE. SO THERE IS NO REASON WHY THAT CAN EVEN BE ADMITTED UNDER THE — UNDER THE HEARSAY RULE. 34, WE ARE NOT EVEN GIVEN A SOURCE. THIS IS JUST AN OUTRIGHT ALLEGATION IN THE PROSECUTION’S RESPONSE. WE BELIEVE THE SOURCE IS ALSO HEARSAY. APPARENTLY THIS IS SOMETHING THE PROSECUTORS PULLED OUT OF FAYE RESNICK’S BOOK TO BOLSTER THEIR RESPONSE TO THEIR MOTION, AND MISS RESNICK APPARENTLY, WHO IS NOT GOING TO BE A WITNESS, WAS REPORTING SOMETHING THAT WAS SAID TO HER BY THE — BY THE VICTIM. SO NOT ONLY DO WE HAVE A HEARSAY STATEMENT, BUT THE PERSON WHO ALLEGEDLY HEARD THAT STATEMENT ISN’T GOING TO BE A WITNESS, SO I DON’T THINK WE NEED TO WORRY MUCH ABOUT ITEM 34. NOW, ITEM 35 BRINGS US TO THE 911 INCIDENT THAT EVERYBODY WAS TREATED TO HEARING IN GRAPHIC DETAIL WITH THE RELEASE OF THE 911 TAPES. I’M ASSUMING YOUR HONOR HAS A COPY OF THE TRANSCRIPT OF THAT 911 CALL, AND I THINK THIS IS A GOOD POINT WITH WHICH TO ADDRESS THE WHOLE PROBLEM OF THE ADMISSIBILITY OF 911 TAPES AS AN EXCEPTION TO THE HEARSAY RULE. OF COURSE THE TAPE ITSELF IS HEARSAY. THERE IS NO OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT OF ANY OF THE STATEMENTS THAT APPEAR IN THE COURSE OF THIS — OF THIS RECORDING, BUT THE — THE PROSECUTION ALLEGES THAT IT COMES WITHIN THE WELL-DEFINED EXCEPTION TO THE HEARSAY RULE FOR SPONTANEOUS STATEMENTS. NOW, THE REQUIREMENT OF STATEMENTS COMING IN UNDER THE SPONTANEOUS STATEMENT EXCEPTION TO THE HEARSAY RULE REALLY GO TO THE ASSUMPTION OF RELIABILITY THAT COMES FROM PEOPLE SPEAKING UNDER THE STRESS OF EXCITEMENT. OF COURSE THE — THE IDEA BEHIND THIS EXCEPTION TO THE HEARSAY RULE IS THAT WHEN — WHEN SOMEONE IS NOT REFLECTING ON WHAT THEY ARE SAYING, THEY ARE JUST REACTING, THEY ARE JUST SPEAKING OUT ABOUT THINGS THAT THEY ARE OBSERVING AT THE SAME TIME THOSE THINGS ARE GOING ON AND THOSE THINGS ARE EXCITING, THAT PEOPLE WILL HAVE LESS OF A TENDENCY TO EXAGGERATE, TO PREVARICATE, THAT WE CAN COUNT ON THESE STATEMENTS AS BEING UNUSUALLY RELIABLE; THEREFORE, WE WILL ADMIT THEM WITHOUT THE NORMAL SAFEGUARD OF ALLOWING CROSS-EXAMINATION. AND ORDINARILY THESE KIND OF STATEMENTS ARE — ARE VERY BRIEF, VERY REACTIVE KIND OF STATEMENTS, AND OF COURSE THE PROBLEM WE HAVE, THAT IS WE HAVE A 14-MINUTE CONVERSATION, A CONVERSATION IN WHICH THE 911 OPERATOR ASKS A NUMBER OF VERY POINTED QUESTIONS AND GETS VERY REFLECTIVE, POINTED RESPONSES. MANY OF THESE RESPONSES NOT ONLY HAVE PROBLEMS OF BEING HEARSAY, BUT THEY ARE EXPRESSIONS OF OPINION. FOR EXAMPLE, “HE IS CRAZY, HE IS FUCKING GOING NUTS, HE IS GOING TO BEAT THE SHIT OUT OF ME.” I MEAN, THESE ARE JUST EXPRESSIONS OF OPINION THAT ARE NOT REACTIONS TO ANYTHING THAT IS HAPPENING OR DESCRIPTIVE OF ANYTHING THAT HAS HAPPENED. I MEAN, THE ONE THING WE ABSOLUTELY KNOW FOR SURE ABOUT THIS INCIDENT OF OCTOBER, 1993, AND THAT IS THERE WAS NO PHYSICAL ABUSE. AT NO TIME IN ANY OF THESE EVENTS DID MR. SIMPSON EVER STRIKE NICOLE BROWN SIMPSON, NOR IS THERE ANY ALLEGATION THAT HE THREATENED TO STRIKE HER, NOR IS THERE ANY EXPRESSION ON HER PART THAT SHE IS CONCERNED THAT HE IS ABOUT TO STRIKE HER. THE CONCERN AGAIN APPEARS TO BE, WELL, WHO IS GOING TO PAY TO FIX THE BROKEN DOOR THAT HE CAME THROUGH AND I’M WORRIED THAT HE IS GOING TO WAKE UP THE KIDS. THOSE ARE THE MOST VEHEMENT CONCERNS EXPRESSED IN THE COURSE OF THIS — OF THIS CONVERSATION. AND OF COURSE THE REAL QUESTION WE HAVE WITH RESPECT TO THIS COMING IN AS EVIDENCE AS A PRIOR INCIDENT IS WHAT DOES THIS TELL US ABOUT WHAT HAPPENED ON JUNE 12, 1994? WHAT IS DESCRIBED HERE IS A VERY LOUD CONFRONTATION BETWEEN MR. SIMPSON AND NICOLE BROWN SIMPSON, IN WHICH THEY ARGUED AND THE ARGUMENT WAS — WAS OF COURSE A VERY PUBLIC ONE IN THE SENSE THAT POLICE OFFICERS RESPONDED, CALMED THEM DOWN. MR. KAELIN WAS PRESENT DURING — DURING MOST OF THE ARGUMENT. WHAT DOES THAT TELL US IN TERMS OF EXPLAINING WHAT HAPPENED ON JUNE 12, 1994? IT TELLS US NOTHING, BUT THE POTENTIAL FOR PREJUDICE, ESPECIALLY SOMEBODY HEARING THIS TAPE, IS ENORMOUS, BECAUSE WE CAN, JUST FROM OUR OWN EXPERIENCE, ATTEST TO THE FACT THAT WHEN THIS TAPE WAS PLAYED ON EVERY TELEVISION SET IN THE COUNTRY, AND REPLAYED AND PLAYED AGAIN, THAT PEOPLE THOUGHT WHAT WAS GOING ON WAS A PHYSICAL ABUSE, THAT WHAT WAS GOING ON WAS MR. SIMPSON BARGING INTO THE HOUSE AND PHYSICALLY ASSAULTING MRS. SIMPSON. AND WE KNOW FOR A FACT THAT THAT DIDN’T TAKE PLACE, THAT THIS IS NOT EVEN AN INCIDENT OF PHYSICAL ABUSE. WHAT IT IS IS A VERY LOUD ARGUMENT BETWEEN TWO PEOPLE, AN ARGUMENT APPARENTLY ABOUT WHETHER BOTH OF THEM HAD CONFORMED TO AN UNDERSTANDING THAT PICTURES OF THE PARTIES INVOLVED IN PRIOR ROMANTIC RELATIONSHIPS WOULD NOT BE DISPLAYED, AND THAT IS WHAT THEY WERE ARGUING ABOUT. DOES THAT SUGGEST A MOTIVE FOR SOMEONE TO MURDER SOMEONE A YEAR LATER OR EIGHT MONTHS LATER? HARDLY. ITEM 36 AND 37 ARE BOTH AGAIN EXAMPLES OF HEARSAY, ALLEGATIONS THAT MRS. SIMPSON SAID TO OTHER THIRD PARTIES THAT SHE BELIEVED THAT MR. SIMPSON WAS — WAS FOLLOWING HER AND SHE HAD REASON TO BE AFRAID OF HIM. AND AGAIN, NO OPPORTUNITY TO CROSS-EXAMINE ANY OF THIS, NO SUGGESTION OF ANY PLAUSIBLE EXCEPTION TO THE HEARSAY RULE. I GUESS, WHAT THE SUGGESTION WILL BE, THAT THIS PROVES SOMEHOW STATE OF MIND. AND AGAIN WE ASK: WELL, WHAT RELEVANCE DOES MRS. SIMPSON’S STATE OF MIND IN 1993 HAVE IN THIS CASE? WHAT RELEVANCE DOES HER STATE OF MIND ON THE VERY NIGHT THAT SHE WAS HEARD HAVE IN THIS CASE? AND THE ANSWER IS NONE, JUST AS THAT ANSWER WAS GIVEN IN THE IRELAND CASE AND IN THE ARCEGA CASE. THERE IS NO RELEVANCE. THAT STATE OF MIND IS NOT GOING TO BE AN ISSUE IN THIS CASE. ITEM 38. NO DISPUTE ABOUT THIS. IN JANUARY OF 1994 MRS. SIMPSON DID MOVE FROM THE GRETNA GREEN HOUSE TO THE PREMISES ON BUNDY DRIVE. ITEM 39. WE ARE TOLD THAT MR. KELLER WILL TESTIFY THAT WHILE HE WAS HAVING COFFEE AT STARBUCK’S WITH MRS. SIMPSON AND A NUMBER OF OTHER INDIVIDUALS, INCLUDING RON GOLDMAN, THAT HE OBSERVED MR. SIMPSON DRIVING BY. MR. SIMPSON STOPPED HIS CAR AND NICOLE WALKED OVER AND SPOKE TO HIM IN THE AUTOMOBILE. HE CHARACTERIZED WHAT IS GOING ON AS SOME SHOUTING. AGAIN, EVEN THAT OF COURSE WILL BE DISPUTED, BUT EVEN IF THERE WAS SHOUTING, WHAT DOES THAT PROVE? THAT MR. SIMPSON SPOKE TO HIS WIFE IN A LOUD VOICE ON AN OCCASION WHEN HE HAPPENED TO BE DRIVING BY WHILE SHE IS SITTING HAVING COFFEE AT STARBUCK’S? WHAT DOES THAT TELL US? DOES THAT SUGGEST A MOTIVE FOR A MURDER? DOES THAT SUGGEST THAT ASSUMING MR. SIMPSON IS — IS THE MURDERER, THAT HE HAD A PARTICULAR INTENT OR PREMEDITATION? DOES IT SUGGEST EVEN THAT HE WAS IN FACT THE MURDERER? DOES IT ESTABLISH HIS IDENTITY? AND OF COURSE IT DOES NONE OF THESE THINGS. IT IS SIMPLY IRRELEVANT. ITEM 40. AGAIN A CONVERSATION WITH — WITH MRS. SIMPSON’S MOTHER AND AGAIN HEARSAY WHICH REALLY — AS TO WHICH WE HAVE NO PLAUSIBLE — I’M SORRY. THIS IS NOT A CONVERSATION BETWEEN THE DEFENDANT AND THE MOTHER, BUT BETWEEN MRS. SIMPSON AND HER MOTHER, SO IT IS HEARSAY, IT DOESN’T COME WITHIN ANY RECOGNIZED EXCEPTION TO THE HEARSAY RULE. ITEM 41 IS AGAIN ANOTHER CONVERSATION BETWEEN MR. SIMPSON AND MRS. SIMPSON’S MOTHER. NO HEARSAY PROBLEM OF COURSE SINCE IT IS A STATEMENT OF THE — OF THE DEFENDANT. THE REAL PROBLEM IS RELEVANCE. WHAT RELEVANCE DOES IT HAVE THAT IN THE COURSE OF AN ATTEMPT TO WORK OUT A RECONCILIATION MR. SIMPSON SAYS TO HIS FORMER WIFE’S MOTHER THAT SHE IS THE ONLY WOMAN HE WANTS IN HIS LIFE AND HE CAN’T HAVE HER, IF IN FACT THAT WAS SAID, AND AGAIN, THERE ARE LIKELY TO BE CONFLICTING VERSIONS OF WHAT WAS ACTUALLY SAID. BUT EVEN IF WE ASSUME THAT THIS WAS WHAT WAS SAID, DOES THAT ESTABLISH A MOTIVE FOR A MURDER? WITH RESPECT TO ITEM NO. 42, THE TESTIMONY OF BILL THIBODEAU, WHO AGAIN, ONE OF THOSE WITNESSES WHO HAS BEEN ON TELEVISION, SO HE WON’T BE PRESENTING THIS STORY FOR THE FIRST TIME IN THIS COURTROOM, HE HAS MADE THE ROUNDS OF THE T.V. SHOWS, AND THERE IS A SERIOUS QUESTION GOING TO BE RAISED ABOUT — ABOUT HIS CREDIBILITY, ABOUT THE ACCURACY OF HIS REPORTS OF WHAT WAS SAID, BUT EVEN IF WE ASSUME THAT EVERYTHING THAT HE ALLEGEDLY SAYS MR. SIMPSON SAID, IT DOESN’T OFFER ANY ELUCIDATION IN TERMS OF A POTENTIAL MOTIVE. IT IS SIMPLY RELEVANT. IT GETS US NOWHERE IN TERMS OF RESOLVING THE ISSUES THAT WE HAVE TO RESOLVE IN THIS CASE. ITEM 43, AGAIN THIS IS FAYE RESNICK, AND THERE MAY BE OTHER WITNESSES OTHER THAN FAYE RESNICK WHO WILL DESCRIBE AN INCIDENT APPARENTLY IN MEXICO WHILE THEY ARE ON VACATION WHERE MR. SIMPSON ALLEGEDLY RIDICULES HIS WIFE’S FEAR OF FROGS AND POINTS OUT THE IRONY THAT HE IS NOW STARING IN A NEW T.V. SERIES CALLED FROGMAN. IS THIS A MOTIVE? WHAT DOES THIS TELL US? IT TELLS US ABSOLUTELY NOTHING THAT IS IN ANY WAY RELEVANT TO ANY ISSUE THAT WE HAVE TO RESOLVE IN THIS CASE, SO OUR OBJECTION IS SIMPLY THAT IT IS IRRELEVANT. ITEM 44, ITEM 49, ITEM 51 ARE ALL ITEMS THAT ARE ATTRIBUTABLE TO NO ONE OTHER THAN FAYE RESNICK, AND THE ANNOUNCED INTENTION OF THE PROSECUTION THAT THEY WILL NOT CALL FAYE RESNICK SHOULD DISPOSE OF THESE MATTERS, SINCE THAT IS THE ONLY WAY IN WHICH ANY OF THESE ITEMS COULD BE — COULD BE PROVEN. AND OF COURSE THAT IS TRUE OF 45, TOO; 44, 45, 49 AND 51. ITEM 46 AND 48 ARE BOTH HEARSAY. IN ONE CASE WE ARE TOLD TO WHOM THESE STATEMENTS WERE MADE BY MISS SIMPSON, AND IN THE OTHER CASE WE DON’T EVEN KNOW TO WHOM THEY WERE TOLD, ALTHOUGH WE SUSPECT IT IS AGAIN FAYE RESNICK. IT IS JUST RANK HEARSAY. WHAT DOES IT PROVE? STATE OF MIND IS THE ONLY POTENTIAL EXCEPTION THAT COMES TO MIND, AND STATE OF MIND SIMPLY ISN’T AT ISSUE IN THIS CASE. ITEM 47, THERE IS NO DISPUTE ABOUT THAT. THE ATTEMPT AT A RECONCILIATION DID END IN MAY OF 1994. ITEM 50. WE ARE TOLD ABOUT A LETTER ALLEGEDLY FROM MR. SIMPSON’S ATTORNEY, SKIP TAFT, RESTATING A THREAT TO INFORM THE IRS OF SOME DIFFICULTY WITH RESPECT TO A DEDUCTION WITH REGARD TO THE SALE AND PURCHASE OF A RESIDENCE BY MRS. SIMPSON. I HOPE YOUR HONOR WILL TAKE A LOOK AT THAT LETTER, BECAUSE THAT IS NOT REALLY WHAT THE LETTER SAYS OR IMPLIES. IT IS NOT A LETTER FROM MR. TAFT; IT IS A LETTER FROM MR. SIMPSON, SO THERE IS NO HEARSAY PROBLEM. IT IS ON HIS OWN LETTERHEAD AND HE EXPRESSES CONCERNS ABOUT MISREPRESENTATIONS BEING MADE IN WHICH IN ORDER TO AVOID THE PAYMENT OF TAXES, MRS. SIMPSON WAS CLAIMING THAT MR. SIMPSON’S HOME WAS HER PRINCIPAL ADDRESS. AND THIS SIMPLY INFORMS HER THAT THAT IS GOING TO PRESENT SOME COMPLICATIONS AND THAT SHE SHOULD MAKE OTHER ARRANGEMENTS. THERE WERE NO THREATS IN THIS LETTER. THERE WAS NO ATTEMPT TO USE THIS IN ANY WAY TO GET HER TO DO ANYTHING. IT SIMPLY STATED WHAT WAS AN OBVIOUS FACT, THAT THAT KIND OF MISREPRESENTATION COULD PRESENT PROBLEMS FOR BOTH OF THEM, AND SOME OTHER ARRANGEMENTS SHOULD BE MADE, AND AGAIN WE WOULD ASK WHAT RELEVANCE THAT HAS IN TERMS OF ANY OF THE EVENTS THAT WE HAVE TO LITIGATE IN THIS CASE ABOUT WHAT HAPPENED ON JUNE 12? ITEMS 52 AND 53. AGAIN RANK HEARSAY. EVERY ONE OF THESE ITEMS IS SOMETHING THAT MRS. SIMPSON ALLEGEDLY SAID TO SOME THIRD PARTY. IN ONE CASE DENISE BROWN, IN THE OTHER CASE, BETSY ROCKETT, AND THE ONLY QUESTION IS WHERE IS THE EXCEPTION TO THE HEARSAY RULE? THESE ARE NOT STATEMENTS THAT CAN BE CROSS-EXAMINED AND STATE OF MIND IS NOT GOING TO BE AN ISSUE IN THIS CASE. ITEM 54, THE SAME THING. MORE HEARSAY. THIS TIME THE RECIPIENT OF THE HEARSAY WAS ALLEGEDLY CORA FICHMAN AND THE FACT THAT WE ARE NOW GETTING CLOSER TO THE ACTUAL DATE OF THE MURDER, THAT SOMEHOW THAT MAKES STATE OF MIND MORE RELEVANT, WE WOULD SIMPLY UNDERLINE THE HOLDINGS IN THE CASES IN IRELAND AND ARCEGA DEALING WITH STATEMENTS MADE VIRTUALLY THE SAME DAY THAT THE MURDER TOOK PLACE AND THE COURT SAID IT IS STILL NOT AN ISSUE IN THE MURDER CASE AS TO WHAT THE VICTIM’S STATE OF MIND WAS, AND THAT IS TRUE IN THIS CASE. NOBODY IS GOING TO MAKE AN ISSUE ABOUT NICOLE BROWN SIMPSON’S OR RONALD GOLDMAN’S STATE OF MIND AT THE TIME THEY WERE MURDERED. ITEMS 55, 56 AND 57. THERE IS NOT GOING TO BE ANY DISPUTE ABOUT ANY OF THOSE. THOSE ALL RELATE TO THE EVENTS ON THE EVENING OF JUNE 12, EXCEPT IT IS NOT QUITE ACCURATE TO SAY THEY SEPARATELY ATTENDED A DANCE RECITAL. THEY WERE BOTH AT THE RECITAL. THEY WERE SEATED WITHIN TWO ROWS OF EACH OTHER. THE REFERENCE TO THE DEFENDANT NOT BEING INVITED TO DINNER, THE DEFENDANT DIDN’T ASK TO BE INVITED TO DINNER. THE RELEVANCE OF THAT REALLY ESCAPES US, AND OF COURSE THE MURDER OCCURRED LATER THAT EVENING. ITEM 58 AND 59 AGAIN RAISE SERIOUS QUESTIONS ABOUT WHAT THE RELEVANCE OF THE STATEMENTS MADE BY MR. SIMPSON AT THE FUNERAL OF HIS WIFE ARE. I DON’T THINK ANYONE WOULD SERIOUSLY CONTEND THAT IN ANY WAY THESE WERE AN ADMISSION, THAT THE PEOPLE HE WAS SPEAKING TO IN INDICATING THE — THE GRIEF THAT HE WAS EXPERIENCING AND SAYING THAT HE LOVED HIS WIFE IS SOMEHOW IMPLIEDLY AN ADMISSION THAT HE KILLED HER. THAT IS JUST SIMPLY STRETCHING THINGS BEYOND ANY CREDULITY AND SIMILARLY. THE CALL THAT HE MADE TO THE FAMILY WHEN HE WAS RETURNING FROM CHICAGO DID NOT IMPLY ANY SORT OF ADMISSION AND WE ARE JUST RAISING A QUESTION ABOUT WHETHER THIS HAS ANY RELEVANCE AT ALL IN TERMS OF — OF WHAT PURPOSE — THE PURPOSE FOR WHICH IT IS BEING OFFERED. WE HAVE A NUMBER OF ADDED EVENTS, AS I INDICATED EARLIER. THE CHALLENGE TO MR. SIMPSON TO EXPLAIN HIS WHOLE LIFE GROWS DAY BY DAY, AND WE NOW HAVE SOME ADDITIONAL CHALLENGES, ADDENDUM TO THE PEOPLE’S RESPONSE WITH RESPECT TO TWO NEIGHBORS WHO IN 1978 OR 1979 — BEAR IN MIND THAT THIS IS SEVEN YEARS BEFORE MR. AND MRS. SIMPSON WERE EVEN MARRIED, THIS IS WHILE THEY WERE LIVING TOGETHER BEFORE THEY WERE EVEN MARRIED — TWO NEIGHBORS, THROUGH THE BEDROOM WALL, REPORT THAT THEY HEARD A VERY LOUD ARGUMENT AND THAT ON A SUBSEQUENT OCCASION THEY OBSERVED MRS. SIMPSON HAD BLACK EYES.

WELL, I DON’T KNOW WHAT TO DO WITH THAT. IT — CERTAINLY IT HAS NO RELEVANCE WHATSOEVER TO ANYTHING THAT TOOK PLACE SIXTEEN YEARS LATER ON JUNE 12 OF 1994. IT CERTAINLY CAN’T BE SUGGESTED THAT THIS OFFERS ANY THEORY OF A MOTIVE OR PROVES INTENT OR PROVES THE IDENTITY OF THE PERPETRATOR OF A MURDER SIXTEEN YEARS LATER. AND AUTHENTICATING THIS IN TERMS OF WHO WAS EVEN IN THAT BEDROOM IS GOING TO BE AN INSURMOUNTABLE TASK THAT WILL PRESENT A SERIOUS 403 QUESTION WHETHER THIS WILL EVEN BE ADMISSIBLE. WE ARE GOING TO HAVE TO LITIGATE WHETHER IN FACT WHAT THEY WERE HEARING WAS EVEN AN ARGUMENT BETWEEN MR. AND MRS. SIMPSON, MUCH LESS WHETHER THAT ARGUMENT HAS ANY RELEVANCE TO THESE PROCEEDINGS. THE OTHER ADD-ON WAS AGAIN AN EVENT — ALLEGED EVENT THAT WILL RAISE A SUBSTANTIAL 403 QUESTION AS TO WHETHER IT EVER TOOK PLACE. WE ARE TOLD THAT MR. SIMPSON IS NOW GOING TO HAVE TO SEARCH HIS MEMORY FOR THE ENTIRE YEAR OF 1986 AND 1987 AS TO ANY OCCASIONS ON WHICH HE MIGHT HAVE BEEN AT THE BEACH WITH MRS. SIMPSON, AND — AND THE INCREDIBLE ALLEGATION IS THAT ON A PUBLIC BEACH IN THE PRESENCE OF PRESUMABLY THOUSANDS OF PEOPLE MR. SIMPSON STRUCK HIS WIFE AND KNOCKED HERB TO THE GROUND. I THINK THERE IS GOING TO BE A SUBSTANTIAL ISSUE OF THE ABILITY OF THIS WITNESS TO ACTUALLY MAKE AN IDENTIFICATION NINE YEARS LATER. SUDDENLY THIS PERSON REMEMBERS, NINE YEARS AGO I WAS AT THE BEACH AND I SAW O.J. SIMPSON HIT HIS WIFE. WELL, EVEN IF THAT IS CREDIBLE, EVEN IF THAT IS BELIEVABLE, WE HAVE TO ASK WHAT DOES IT PROVE? WHAT IS THE RELEVANCE? HOW DOES THAT ESTABLISH ANY MOTIVE, ANY INTENT OR THE IDENTITY OF ANYONE INVOLVED IN A MURDER ON JUNE 12, 1994? THE OTHER RECENT DEVELOPMENT WITH RESPECT TO THE SOJOURN ITEM THAT WAS JUST PRESENTED IN COURT THIS MORNING, AGAIN, JUST ANOTHER EXAMPLE OF ATTEMPT TO USE HEARSAY IN THIS CASE, WHICH IS NOT SUBJECT TO CROSS-EXAMINATION, APART FROM ALL OF THE PROBLEMS OF AUTHENTICATION OF WHO THIS ACTUALLY WAS REFERRED TO IN THAT — IN THAT REPORT. EVEN IF THOSE PROBLEMS ARE OVERCOME, THE QUESTION IS IT IS HEARSAY. WHAT HEARSAY EXCEPTION DOES IT COME WITHIN? SO YOUR HONOR, WHEN WE BOIL IT ALL DOWN, WHAT WE HAVE IN THIS — IN THIS CHRONOLOGY IS AN AWFUL LOT OF HEARSAY, UNCORROBORATED HEARSAY, HEARSAY THAT THE DEFENDANT CANNOT CROSS-EXAMINE, HEARSAY THAT COMES WITHIN NO RECOGNIZED EXCEPTION TO THE HEARSAY RULE, THE ONLY POTENTIAL EXCEPTION BEING STATE OF MIND, WHICH IS NOT IN ISSUE IN THIS CASE, AND IT CAN’T BE MADE AN ISSUE JUST TO BOOTSTRAP THIS EVIDENCE. THE PROSECUTION CAN’T SOMEHOW CONSTRUCT SOME CONVOLUTED THEORY OF THE EVIDENCE THAT MAKES THE STATE OF MIND OF THE VICTIM AN ISSUE JUST AS A DEVICE TO PULL IN ALL OF THESE ITEMS OF UNCORROBORATED HEARSAY. WE HAVE A LOT OF ITEMS AS TO WHICH THERE WILL BE NO WITNESSES AT TRIAL, BECAUSE THE PROSECUTION HAS ANNOUNCED THEY ARE NOT CALLING FAYE RESNICK AND FAYE RESNICK IS THE ONLY REPORTED WITNESS TO THESE INCIDENTS. WE HAVE A NUMBER OF STATEMENTS ATTRIBUTED TO THE DEFENDANT OF HIGHLY QUESTIONABLE RELEVANCE THAT REALLY OFFER NO INSIGHT INTO ANY STATE OF MIND OF THE DEFENDANT THAT WOULD BE RELEVANT ON JUNE 12, 1994. AND WHAT WE DO HAVE IN TERMS OF ANY INCIDENTS THAT CAN, BY THE WILDEST CHARACTERIZATION BE CALLED INCIDENTS OF ABUSE, DO NOT INVOLVE PHYSICAL ABUSE IN MOST OF THE CASES, THE SINGLE EXCEPTION BEING THE 1989 INCIDENT IN WHICH MR. SIMPSON WAS PLACED ON PROBATION, MANY OF WHICH ARE VERY REMOTE TO ANYTHING THAT TOOK PLACE IN THIS CASE, LONG BEFORE 1994. IN FACT, IT IS REMARKABLE THAT THERE ARE SO FEW IN THE COURSE OF A 17-YEAR RELATIONSHIP, AND YET INCIDENTS THAT COULD BE VERY PREJUDICIAL, VERY TIME-CONSUMING, VERY CONFUSING TO THE JURY IN TERMS OF WHAT THEY ARE TO MAKE OF ANY OF THIS. WHAT WE END UP WITH IS A BUMPY MARRIAGE IN WHICH THE PARTIES ARGUED A LOT, PROBABLY NO MORE THAN USUAL IN — IN MANY MARRIAGES. ALL OF THE GOOD MOMENTS OF THAT MARRIAGE ARE LEFT OUT, AND PROBABLY THE LOW POINTS ARE THE 1989 NEW YEAR’S PARTY INCIDENT, THE ZLOMSOWITCH INCIDENT IN 1992, AND THE ARGUMENT OVER THE BROKEN DOOR IN 1993. AND WITH RESPECT TO EACH OF THOSE INCIDENTS, THE QUESTION WE HAVE TO ASK OURSELVES IS HOW SIMILAR ARE ANY OF THESE INCIDENTS TO WHAT HAPPENED ON JUNE 12, 1994, WHEN TWO PEOPLE WERE BRUTALLY STABBED TO DEATH ON A SIDEWALK OUTSIDE OF THEIR HOME? HOW DOES ANYTHING THAT HAPPENED IN A PUSHING AND SHOVING ARGUMENT FOLLOWING A NEW YEAR’S EVE PARTY RESOLVE ANY OF THE ISSUES WE HAVE TO RESOLVE ABOUT WHAT HAPPENED ON JUNE 12? HOW DOES ANY EVIDENCE ABOUT THE CONFRONTATION OF A MAN ENGAGED IN SEXUAL ACTIVITY WITH HIS WIFE ILLUMINATE WHAT HAPPENED ON JUNE 12, 1994? AND HOW DOES A LOUD ARGUMENT ABOUT WHAT KIND OF PICTURES ARE IN A FAMILY ALBUM LEADING TO THE BREAKING OF A DOOR IN 1993 ILLUMINATE ANY OF THOSE ISSUES? NO MATTER WHAT LABEL YOU PUT ON THESE INCIDENTS, IF YOU WANT TO CALL THEM SPOUSAL ABUSE, EVEN THOUGH THEY DON’T MEET THE LEGAL DEFINITION OF SPOUSAL ABUSE, WHERE DOES THAT TAKE US IN TERMS OF THE REAL ISSUE THAT WE WANT TO LITIGATE IN THIS TRIAL? AND THAT IS THE ISSUE OF WHO KILLED NICOLE BROWN SIMPSON AND RONALD GOLDMAN.

AND WE SUBMIT THAT NONE OF THIS EVIDENCE IS GOING TO TAKE US DOWN THE ROAD TO ANSWERING THAT QUESTION IN THIS TRIAL. MAY I CONFER WITH CO-COUNSEL?

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. GORDON: WE WILL NEED JUST A MOMENT.

MR. UELMEN: THERE IS ONE ISSUE I DID NOT ADDRESS IN MY ORAL ARGUMENT AND I DON’T WANT YOUR HONOR TO ASSUME THAT WE ARE WITHDRAWING OUR OBJECTION TO THE USE OF THE TERMS “SPOUSAL ABUSE/BATTERED WIFE” IN THE COURSE OF THIS TRIAL. WE ALSO BELIEVE THOSE TERMS CARRY WITH THEM AN ENORMOUS AMOUNT OF BAGGAGE AND THEY NEED TO BE VERY CAREFULLY DEFINED IN TERMS OF WHAT THEY MEAN AND HOW THEY ARE USED. AND WE ARE VERY CONCERNED THAT THE JURORS NOT BRING INTO THIS CASE ANY BAGGAGE THAT THEY MAY ASSOCIATE IN TERMS OF THIS NATURE THAT ARE INAPPROPRIATE TO DESCRIBE ANY OF THE EVIDENCE IN THIS CASE. THANK YOU.

THE COURT: ALL RIGHT. MR. GORDON.

MR. GORDON: COULD WE HAVE JUST A MOMENT TO BRING SOME GRAPHICS ON?

THE COURT: SURE.

(BRIEF PAUSE.)

THE COURT: MR. GORDON, HAVE YOU HAD THE OPPORTUNITY TO SHOW IT TO COUNSEL?

MR. GORDON: ABOUT TO RIGHT NOW.

MR. COCHRAN: I WAS JUST ASKING HIM THAT.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

MR. COCHRAN: MAY WE APPROACH, YOUR HONOR?

THE COURT: WITH THE COURT REPORTER, PLEASE.

(THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

THE COURT: MR. COCHRAN, DO YOU WANT TO LODGE SOME SORT OF OBJECTION?

MR. COCHRAN: FIRST OF ALL, I WANT TO SAY, YOUR HONOR, WHEN I WAS IN THE D.A.’S OFFICE IN 1978 I WAS THE FIRST CHAIRMAN IN THIS COUNTY OF THE DOMESTIC VIOLENCE COUNSEL AND I HOPE THIS ISN’T THE END RESULT OF ALL MY WORK.

MS. BODIN: YOU WILL BE PROUD.

MR. COCHRAN: I HEARD FROM MR. GORDON, AND WE HAVE SEEN THE EXHIBIT NOW, YOUR HONOR, AND IF THE EXHIBITS ARE FOR YOUR HONOR, THERE IS NO INDICATION YOUR HONOR HAS ANY PROBLEM SEEING. AS YOU SAID BACK IN CHAMBERS, I HAVE NO OBJECTION TO YOU SEEING EVERYTHING AND PERUSING EVERYTHING. I DON’T KNOW WHY THEY ARE SO BIG AT THIS POINT.

THE COURT: UH-HUH.

MR. COCHRAN: I DON’T THINK YOU NEED THEM AND THE JURY IS NOT HERE. THAT IS MY FIRST CONCERN.

THE COURT: MAYBE IT IS A COMMENT BY THE DISTRICT ATTORNEY’S OFFICE ON MY BLISTERING LACK OF ABILITY TO COMPREHEND THEIR ARGUMENTS.

MR. COCHRAN: I WOULD BE VERY SURPRISED IF YOU DIDN’T FULLY UNDERSTAND THEIR ARGUMENT. THEY ALSO PURPORT TO CALL OR TALK ABOUT CALLING AN EXPERT. THEY SEARCHED THIS ENTIRE COUNTRY AND COULDN’T FIND ANYBODY IN THE UNITED STATES AND THEY SOME CHARTS THERE WHICH I HAVE A QUESTION OF RELEVANCY.

THE COURT: BUT AFTER NAFTA WE CAN GO ANYWHERE WE WANT.

MR. COCHRAN: I SUPPOSE YOU CAN, BUT I DON’T KNOW IF OUR JURY WILL RELATE TO A CITIZEN FROM THE NORTH, I GUESS HE COULD, BUT THIS MAN IS FROM CANADA.

MR. GORDON: THAT SHOULD BE BETTER.

MR. COCHRAN: IF HE IS GOING TO CALL EXPERT TESTIMONY, THEN I THINK WE NEED AN OFFER OF PROOF ON THAT. I MEAN, THERE IS NO SHOWING THAT THIS COURT DOESN’T UNDERSTAND THIS IS A MURDER CASE AND I DON’T UNDERSTAND — THEY HAVE GOT THIS THEORY AND I THINK THAT SOMEBODY USED THE WORDS “INSULTING” AND THE PROSECUTION WOULDN’T INSULT YOU, I KNOW, BUT THERE IS FAR FROM ANY SHOWING THAT YOU NEED ANY HELP FROM AN EXPERT REGARDING THE BATTERED WOMAN’S SYNDROME, THE WHOLE CONCEPT OF HELPLESSNESS AND ALL THOSE THINGS. SO I THINK WE NEED AN OFFER PROOF AND I’M GOING TO ASK FOR ONE AT THIS POINT BECAUSE I’M REALLY CONCERNED ABOUT, JUDGE, THIS IS GOING OUT OVER THE AIRWAVES AND THEY ARE FURTHER PREJUDICING THE PUBLIC. IT WON’T AFFECT OUR JURY NOW BUT IT IS IRRELEVANT AND IMMATERIAL UNLESS IT HELPS YOU OUT. YOU ARE MAKING THIS DECISION.

MR. DARDEN: IS THAT A LEGAL OBJECTION AT THIS POINT, THAT WE MIGHT PREJUDICE THE PUBLIC?

MR. COCHRAN: YES, IT IS, BECAUSE IT IS IRRELEVANT AND IMMATERIAL IF IT IS JUST FOR THE PUBLIC CONSUMPTION.

THE COURT: MR. GORDON.

MR. GORDON: FIRST OF ALL, THE JURY IS SEQUESTERED, SO THE NOTION OF THE PREJUDICE I DON’T THINK THERE IS ANY LEGAL CONCERN WHATSOEVER. SECONDLY, WITH REGARD TO THE EXPERT TESTIMONY, WE’VE HEARD AN ENTIRE ARGUMENT BASED TODAY THAT ALL WE NEED TO DO IS SHOW A SIMILAR CONNECTION BETWEEN CERTAIN ACTS WITH REGARD TO INTENT, DESIGN OR MOTIVE, AND THAT IS EXACTLY, EXACTLY WHAT THIS TESTIMONY GOES TO SHOW. AND THIS EXPERT WILL EXPLAIN HOW THESE ACTS ARE ABSOLUTELY LINKED, ABSOLUTELY PUT TOGETHER, HAVE THE SAME DESIGN, THE SAME INTENT AND THE SAME MOTIVE. THAT IS WHAT WE WERE REQUESTED TO DO AND WE ARE RESPONDING TO THAT REQUEST. WITH REGARD TO THE CHART SIZE, I DON’T HAVE TO RESPOND TO THAT HERE. I ASKED SOMEBODY TO DO A CHART, THAT IS WHAT CAME BACK. IT IS NOT MEANT TO INSULT THE COURT AT ALL.

THE COURT: I’M SURE YOU ARE PLANNING TO USE IT FOR A DIFFERENT AUDIENCE SOME TIME LATER.

MR. GORDON: I THINK THAT IS WHAT IT IS, SO WE DON’T HAVE TO DO IT A SECOND TIME.

THE COURT: I’M GOING TO DIRECT YOU TO TURN THE EASEL SO IT FACES ME SO IT IS NOT IMMEDIATELY ACCESSIBLE TO THE PHOTOGRAPHERS IN THE BACK.

MR. GORDON: THAT IS WHAT I INTENDED TO DO WITH THIS.

THE COURT: I AM THE ONLY ONE THAT NEEDS TO SEE THIS.

MR. DARDEN: BEFORE WE LEAVE SIDE BAR, CAN I JUST SHOW COUNSEL THE ’89 PHOTOGRAPHS? AND THEY HAVE JUST BEEN DELIVERED JUST NOW.

MR. BAILEY: DO YOU WANT TIME TO ENHANCE —

MR. COCHRAN: JUST LIKE IN THE MOVIES, JUST RAN IN WITH THESE.

MR. DARDEN: I’VE GOT JUICE IN THE D.A.’S OFFICE NOW, DIDN’T YOU KNOW?

MR. COCHRAN: WE HAVE JUICE; YOU DON’T HAVE JUICE.

MR. GORDON: I JUST WANT TO FINISH THE OBJECTION. COUNSEL HAS JUST FINISHED MAKING AN ARGUMENT ABOUT THE ACTS THAT HE HAS DESCRIBED AND OBVIOUSLY WE ARE GOING TO USE — USE OUR TERMS OF ADVOCACY TO DESCRIBE THEM. THEY ARE THINGS IN A NORMAL MARRIAGE DON’T REPRESENT. A LOT OF ARGUMENTS HAVE BEEN MADE WITHOUT ANY KIND OF EMPIRICAL DATA AT ALL. THE COURT SAID IT COULD CONSIDER EMPIRICAL DATA. I THINK IT IS BETTER TO BRING IN A SOURCE WHO IS VERY FAMILIAR —

THE COURT: LET’S SEE — WHETHER WE GET TO THAT THE ISSUE IS WHETHER OR NOT BWS IS GOING TO BE ADMISSIBLE, SO WE HAVE A FUNDAMENTAL HILL WE HAVE TO GET OVER BEFORE WE GET TO THAT.

MR. COCHRAN: 1107.

MR. GORDON: ACTUALLY I THINK THERE IS TWO ISSUES, YOUR HONOR. I THINK YOU ARE RIGHT, ONE IS BWS OR ANY TESTIMONY EXPERT TESTIMONY WITH REGARD TO BATTERING ADMISSIBLE IN THE TRIAL, AND I WILL CERTAINLY ADDRESS THAT, BUT THERE IS A SECOND STAGE WHICH IS THE USE TO HELP ANY — TO ASSESS THE TRIER OF FACT IN THIS STAGE FOR THE PURPOSE OF THIS MOTION TO UNDERSTAND THE CONNECTIONS. AND AT THIS POINT THAT IS WHAT I’M OFFERING IT FOR, IS TO EXPLAIN THE EVIDENCE HERE.

THE COURT: ALL RIGHT. THE PROBLEM YOU ARE GOING TO HAVE, THOUGH, AND THIS IS NOT A RULING, JUST AN OBSERVATION, BUT THE STATUTE DOES SAY IT IS NOT ADMISSIBLE TO PROVE THAT THE PERSON DID THIS ACT THAT WE ARE ON TRIAL.

MR. GORDON: I UNDERSTAND.

THE COURT: SO YOU HAVE SOMEWHAT OF A RELEVANCE — I MEAN, I ASSUME YOU ARE GOING TO MAKE AN ARGUMENT THAT BWS IS ADMISSIBLE TO EXPLAIN THE VICTIM’S CONDUCT AFTER THE ’89 INCIDENTS AND DURING THE COURSE OF THE ’93 INCIDENTS, I ASSUME.

MR. GORDON: I’M GOING TO EXPLAIN BWS.

THE COURT: THAT IS SORT OF PRETTY LIMITED PURPOSE.

MR. GORDON: I’M GOING TO BE ARGUING 1107 WITH REGARD TO LEGISLATIVE INTENT. MISS BODIN, WHO WAS PRESENT DURING EVERY HEARING ON THAT STATUTE, WROTE A MAJORITY OF THE AMENDMENTS IN THAT STATUTE, IS HERE THAT WILL DEFINITELY, DEFINITELY RESPOND TO THAT WHEN I GET TO THAT POINT.

THE COURT: ALL RIGHT.

MR. GORDON: THAT IS NOT WHAT THE EXPERT IS BEING OFFERED FOR RIGHT NOW.

THE COURT: AT THIS POINT LET’S TURN THE PLACARDS TOWARD THE COURT, SINCE IT IS NOT FOR PUBLIC CONSUMPTION.

MR. COCHRAN: AT THIS POINT ALSO I THINK THE EXPERT SHOULD BE EXCUSED. HE IS NOT NEEDED YET, SO I WOULD ASK THAT HE BE EXCUSED IF THEY ARE GOING TO MAKE SOME FURTHER ARGUMENT ABOUT WHAT HE IS GOING TO STATE, AND I WOULD LIKE FOR HIM TO NOT WATCH TELEVISION AND BE EXCUSED. HE IS NOT A FAMILY MEMBER. WE DON’T THINK THAT IS APPROPRIATE.

THE COURT: THIS TYPE OF EXPERT TESTIMONY, THOUGH — I MEAN, WE KNOW WHAT THE FACTS OF THIS CASE ARE AND STATISTICS AREN’T GOING TO CHANGE.

MR. COCHRAN: SO —

THE COURT: I DECLINE THAT INVITATION.

MR. GORDON: CAN WE CALL HIM AT THIS TIME, YOUR HONOR?

MR. COCHRAN: HOW CAN YOU CALL HIM?

THE COURT: WE NEED TO GET TO FUNDAMENTALS BEFORE WE GET TO THAT.

MR. COCHRAN: THAT MAY NOT BE TODAY, I DON’T THINK.

MR. GORDON: OKAY.

(PAGES 10626 THROUGH 10633, VOLUME 68A, TRANSCRIBED AND SEALED UNDER SEPARATE COVER.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: LET’S TAKE OUR AFTERNOON RECESS AT THIS POINT AND GET SET UP.

(RECESS.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

MR. GORDON: CAN WE APPROACH FOR JUST A MOMENT, SIR?

(A CONFERENCE WAS HELD AT THE BENCH, NOT REPORTED.)

THE COURT: GOOD AFTERNOON AGAIN, COUNSEL.

MR. GORDON: GOOD AFTERNOON, YOUR HONOR.

THE COURT: 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 MR. GORDON, MS. BODIN AND MR. GOLDBERG. THE MATTER IS HERE FOR CONTINUING MOTION, IN LIMINE PROCEEDINGS. AND, MR. GORDON, YOU’VE HAD THE OPPORTUNITY TO SET UP YOUR GRAPHICS FOR THE BENEFIT OF THE COURT?

MR. GORDON: YES, SIR.

THE COURT: YOU MAY PROCEED.

MR. GORDON: THANK YOU. YOUR HONOR, THIS MORNING, IN MR. UELMEN’S COMMENTS, HE KEPT REFERRING TO THE FACT THAT THIS IS A MURDER CASE, THAT THESE INSTANCES WE’VE BEEN TALKING ABOUT AND WILL DISCUSS TODAY BEAR NO RELEVANCE, HAVE NO SIMILARITY WHATSOEVER. THE POINT THAT IS BEING MISSED AND WHAT MUST BE UNDERSTOOD IN THIS CASE AND IN ALL CASES OF SPOUSAL ABUSE AND SPOUSAL HOMICIDE IS THAT THE EVENTS THAT TAKE PLACE THAT LEAD UP TO THAT HOMICIDE ARE COMPLETELY TOTALLY WELDED AND LINKED TO THAT TERMINAL ACT. THE DEFENSE IS RIGHT, THIS IS A MURDER CASE. WHERE THE DIFFERENCE IS IS THAT WHAT MUST BE RECOGNIZED IS THAT THIS MURDER TOOK 17 YEARS TO COMMIT. IN A HOUSEHOLD — IN ANY HOME OR HOUSEHOLD IN WHICH VIOLENCE BECOMES PART OF THAT RELATIONSHIP, THOSE PUNCHES, SLAPS, THAT PUSHING IS A PRELUDE TO A HOMICIDE. THAT HAS TO BE RECOGNIZED. IT IS DOCUMENTED. IT HAS BEEN EMPIRICALLY RESEARCHED, AND WE’LL DEMONSTRATE THAT. THE PATTERN OF ABUSE AND CONTROL WHICH CHARACTERIZED THE RELATIONSHIP BETWEEN THE DEFENDANT AND NICOLE BROWN SIMPSON IS TEXTBOOK. IT MIRRORS AND ILLUSTRATES WHAT HAS BEEN DOCUMENTED OVER THE YEARS STARTING WITH DR. WALKER, WHICH WE TALKED ABOUT, THE DEFENSE HAS TALKED ABOUT AND HAS BEEN ILLUSTRATED IN THE YEAR SINCE HER INITIAL RESEARCH. THE DEFENSE KEEPS — CHARACTERIZES THIS EVIDENCE OF PRIOR HISTORY OF ABUSE AS CHARACTER EVIDENCE. THIS IS TRANSACTIONAL EVIDENCE, YOUR HONOR, AND THAT’S WHAT ZACK TALKS ABOUT. AND WE WILL EXPLAIN LATER HOW IT WORKS. THIS EVIDENCE IS PART OF THIS TRANSACTION. IT CERTAINLY HAS RELEVANCE, AND IN THERE CERTAINLY ARE THEORIES OF ADMISSIBILITY UNDER TRADITIONAL 1101(B) ANALYSIS. BUT BEFORE YOU GET THERE, IT HAS TO BE RECOGNIZED THAT THE PATTERN IN A — PATTERN OF ABUSE THAT LEADS UP TO THE DEATH OF A SPOUSE, DEATH OF AN INTIMATE CAN NOT BE TORN AWAY OR BROKEN AWAY FROM THAT TERMINAL ACT OF ABUSE PER HER DEATH, HER MURDER. THE DEFENSE HAS STATED THERE’S NO RELATIONSHIP IN ANY OF THESE ACTS, IN ANY OF THESE ACTS OF ABUSE, THE DEATH ACCOMPLISHED AGAINST HIS WIFE IS NO RELATIONSHIP BETWEEN THAT AND A HOMICIDE. THIS MORNING, MR. UELMEN ARGUED THAT THERE ARE NO CHARACTERISTICS — THAT THE MURDER THAT WE HAD OF NICOLE BROWN SIMPSON AND RONALD GOLDMAN WAS NOT A TYPICAL DOMESTIC VIOLENCE MURDER. THOSE ARGUMENTS THIS MORNING WERE ANALOGIZED TO A DRUG SCENE MURDER. THERE WAS NO DATA OFFERED WHATSOEVER WITH THAT, AND IN FACT IT’S COMPLETELY WRONG. IT’S COMPLETELY WRONG. ONE OF THE THINGS THAT IS VERY CONCERNING ABOUT ANY CASE WHEN YOU’RE DEALING WITH DOMESTIC VIOLENCE, WHETHER IT’S AT THE INITIAL STAGES WITH AN ASSAULT UP TO A HOMICIDE, IS THAT THERE ARE MANY MISCONCEPTIONS WITHIN THE PUBLIC ABOUT SPOUSAL ABUSE. SPOUSAL ABUSE IS A CRIME, SOMETHING THAT OCCURS WITHIN SECRET, WITHIN THE SHADOWS. IT CAN ONLY BE UNDERSTOOD WHEN IT’S BROUGHT OUT INTO THE LIGHT. AND THE ARGUMENTS THAT WERE MADE TODAY ARE EXACTLY, EXACTLY THE MISCONCEPTIONS WHICH HAVE LED TO THE NEED FOR TESTIMONY, EXPERT TESTIMONY. THERE’S LITERATURE THAT’S COME UP TO MINIMIZE INCIDENTS, TO ARGUE THAT ABUSE IS NOT PHYSICAL VIOLENCE, TO ARGUE THAT BOTH PARTIES WERE JUST DRINKING, THEY WERE JUST WRESTLING, ALL IT WAS WAS PHYSICAL DAMAGE WHEN SOMEONE IS SITTING INSIDE A CAR AND HAS HER HUSBAND, AN EX-PROFESSIONAL FOOTBALL PLAYER HITTING THAT CAR WITH A BASEBALL BAT, WORRYING ABOUT THE WINDSHIELD, HOW MUCH IT WOULD COST. THOSE KINDS OF TRADITIONAL SITUATIONS OF VIOLENCE AND ABUSE, THAT KIND OF — THE VICTIM BLAMING THAT KIND OF BEHAVIOR ON THE PUBLIC’S MISCONCEPTIONS IS EXACTLY THE PROBLEM IN THIS CASE, EXACTLY THE PROBLEM IN MANY CASES OF DOMESTIC VIOLENCE. WITH REGARD TO THE SIMILARITIES THAT COUNSEL HAS ASKED FOR, WHAT A TRADITIONAL DOMESTIC VIOLENCE HOMICIDE LOOKS LIKE, THAT HAS BEEN STUDIED. ONE LENGTHY STUDY WAS DONE IN ONTARIO IN 1992 AS PREPARED FOR THE ONTARIO WOMEN’S AUXILIARY. IT WAS A STUDY IN WHICH ALL WOMEN KILLED BETWEEN 1974 AND 1990 IN ONTARIO, CANADA CASES WERE DIRECT RESULTS OF DOMESTIC VIOLENCE. AND THE STUDIES I AM GOING TO BE TALKING ABOUT HAVE BEEN REPLICATED AND DUPLICATED FROM NUMEROUS OTHER STUDIES; SOME ARE UNITED STATES STUDIES, SOME ARE CANADIAN STUDIES AND SOME ARE AUSTRALIAN STUDIES. IN FACT, THE SAMPLING, WHEN YOU LOOK AT ALL THE STUDIES, WHICH FIND IDENTICAL RESULTS, IS UP TO AROUND 3,000 SPOUSAL ASSAULTS THAT HAVE BEEN LOOKED AT. IT’S VERY, VERY SIGNIFICANT DATA. WHAT THE STUDIES SHOW IS THAT THERE ARE SEVERAL CHARACTERISTICS OF SPOUSAL HOMICIDE, AND THEY’RE ILLUSTRATED ON THE CHART WE PRESENT. FIRST OF ALL, IT MUST BE RECOGNIZED THAT WOMEN THAT ARE KILLED, THE MAJORITY OF THEM ARE KILLED BY INTIMATES. AND BY INTIMATES, I’M TALKING ABOUT THAT PRIOR EMOTIONAL RELATIONSHIP IN THEIR LIFE, HUSBAND, BOYFRIEND, EX-BOYFRIEND, THAT PRIMARY LOVE RELATIONSHIP. IN FACT, IN THE STUDY THAT WAS DONE IN ONTARIO, SOME 61 PERCENT OF ALL THE WOMEN KILLED IN THOSE YEARS WERE IN FACT KILLED BY AN INTIMATE. AND SPOUSAL KILLING IS A CRIME THAT AFFECTS WOMEN. 75 PERCENT OF ALL SPOUSAL KILLINGS IN THAT TIME, THREE-QUARTERS OF THEM, THE WOMAN WAS THE VICTIM. IN FACT, WHEN LOOKING AT ALL HOMICIDES, AT ALL — BOTH MALE AND FEMALE HOMICIDES AS VICTIMS WHEN I’M SAYING THAT — OF ALL MEN THAT WERE KILLED IN THAT TIME, EIGHT PERCENT OF THE MEN WERE KILLED BY THEIR SPOUSES. YET, 50 PERCENT OF WOMEN THAT WERE KILLED WERE KILLED BY SPOUSES. THAT’S NOT SIGNIFICANT OTHERS, BUT ACTUALLY BY SPOUSES. 64 PERCENT OF THE WOMEN WHO WERE VICTIMS OF INTIMATE HOMICIDE WERE BETWEEN THE AGES OF 20 AND 39. SOME OF THE CHARACTERISTICS THAT CAME OUT BEAR STRIKING RESEMBLANCE TO THE CASE WE HAVE HERE. JUST WHAT MAKES IT SUCH A TYPICAL SPOUSAL KILLING? COUNSEL HAD ASKED FOR WHAT THOSE SIMILARITIES ARE. IN THE CASES STUDIED, 90 PERCENT OF THE WOMEN HAVE REPORTED PRIOR ACTS OF ABUSE BY THE OFFENDER. IN 83 PERCENT OF THE CASES, THE OFFENDER HAD MADE THREATS TO THE VICTIM. IN 65 PERCENT OF THOSE CASES, THERE HAD BEEN PRIOR POLICE INVOLVEMENT IN THOSE CASES, JUST LIKE IN THIS CASE. IN THOSE CASES — WHEN IT WAS STUDIED, ONE OF THE THINGS THAT WAS LOOKED AT THAT WE DISCUSSED TODAY WAS MOTIVE. AND WHEN YOU LOOK AT SPOUSAL KILLING, ONE MOTIVE DOES STAND CLEAR; AND THAT IS ESTRANGEMENT. ESTRANGEMENT. CONTROL IS AT THE HEART OF DOMESTIC VIOLENCE. THE BEHAVIOR AND ABUSES THAT A BATTERER PUTS FORTH ON HIS VICTIM AND WHEN — HERE’S WHERE WE TALK ABOUT SIMILARITIES OF ONE DESIGN AND ONE INTENT. THEY ARE MECHANISMS OF CONTROL. THEY ARE MECHANISMS TO KEEP THIS WOMAN WITHIN HIS POWER. AND THAT IS ONE OF THE REASONS WHY IT IS SO IMPORTANT TO LOOK AT THESE DIFFERENT ACTS IN RELATIONSHIP TO ONE ANOTHER. IN 45 PERCENT OF THE CASES WHICH WERE REPORTED, ALMOST HALF, ONE MOTIVE EXISTED; AND THAT WAS ESTRANGEMENT. THE SECOND LEADING MOTIVE, WHICH IS AN ADDITIONAL 15 PERCENT OF THE CASES, WAS THE OFFENDER SUSPICION, THAT SOME OTHER MAN WAS INVOLVED WITH THE WOMAN. THE NOTION OF JEALOUSY AND ESTRANGEMENT ARE TWO THINGS THAT ARE VERY, VERY STRONG HERE, THAT REOCCUR HERE, THAT WERE DYNAMICS IN PART OF THIS RELATIONSHIP EVEN BEFORE THESE TWO PEOPLE WERE MARRIED UNTIL THE DAY THAT NICOLE BROWN SIMPSON DIED. MOST OF THE OFFENDERS STUDIED HERE ATTACKED THEIR VICTIMS IN CLOSE PHYSICAL CONTACT. IN ALMOST 60 PERCENT OF THE CASES, THE OFFENDER STABBED, BLUDGEONED, STRANGLED, STABBED OR SLASHED THE THROATS OF THEIR VICTIMS. AND OF THIS FACIAL ASSAULT INVOLVEMENT THEME OR EXCESSIVE VIOLENCE, MOST ARE GRUESOME CRIME SCENES, A LOT OF VIOLENCE. IN FACT, IT WAS NOTED THAT MANY OF THE KILLINGS, THE OFFENDERS INFLICTED HARM WAY BEYOND NECESSARY TO KILL THE VICTIM. AND THIS IS A QUOTE FROM THE REPORT. FOR EXAMPLE, MORE THAN HALF THE STABBINGS INVOLVED MULTIPLE STAB WOUNDS; IN MANY CASES, DOZENS OF WOUNDS OVER THE ENTIRE BODY. IN FACT, IT WAS NOTED IN THE REPORT THAT MANY OF THE POLICE OFFICERS AND CORONERS THAT HAVE WORKED WITH THE CASES AND DONE THE AUTOPSIES COMMENTED THAT THESE WERE SOME OF THE MOST GRUESOME CRIME SCENES THEY HAD EVER ENCOUNTERED. 18 PERCENT OF THESE SPOUSAL KILLINGS OCCURRED AT OR NEAR THE VICTIM’S HOME. THIS REPORT FOUND THAT WOMEN THAT ARE ESTRANGED, RECENTLY ESTRANGED FROM THEIR SPOUSES, SPOUSES IN ABUSIVE RELATIONSHIPS ARE FIVE TIMES MORE LIKELY TO BE KILLED BY INTIMATE PARTNERS THAN ANY OTHER REASON. IN FACT, THE REPORT WENT ON TO PROFILE A CERTAIN SET OF WOMEN, CERTAIN POPULATION OF WOMEN THAT ARE MOST AT RISK FOR SPOUSAL KILLING. SOME OF THE FACTORS THEY IDENTIFIED WERE WOMEN WHO HAD BEEN RECENTLY ESTRANGED OR SEPARATED FROM THEIR PARTNERS, AGE, BETWEEN 30 TO 44, WHO HAD NOT WORKED OUT OF HOME IN RECENT YEARS AND CENTERED THE MAJORITY OF THEIR LIFE WITHIN THEIR HOME. NICOLE BROWN SIMPSON THROUGHOUT THE HISTORY THAT MS. BODIN WILL TALK ABOUT ECHOED HER FEARS, ECHOED THE FEARS THAT SHE WOULD BE KILLED BY THE DEFENDANT. IN FACT, SHE CHRONICLED HER ABUSE AND LEFT A TRAIL. IT SHOULD NOT BE AN ECHO THAT SHOULD BE IGNORED. DEFENSE WANTS OTHER RELATIONSHIPS BETWEEN SPOUSAL ABUSE AND KILLING. IN 1993, THE NEW ENGLAND JOURNAL OF MEDICINE ARTICLE BY DR. KELLERMAN SAID THAT THE DATA THAT WAS STUDIED THERE STRONGLY SUGGESTED THAT THE RISK OF HOMICIDE IS MARKEDLY INCREASED IN HOMES WHERE A PERSON HAS PREVIOUSLY BEEN HIT OR HURT IN A FAMILY FIGHT. IN FACT, IT WENT ON TO ADVISE PUBLIC AGENCIES THAT EARLY IDENTIFICATION AND INTERVENTION IS HOMICIDE PREVENTION. IN THE LEGAL ARGUMENTS WE’LL BE TALKING TODAY — TALKING ABOUT TODAY, THE DEFENSE HAS ARGUED THAT TO ALLOW THIS EVIDENCE IN WOULD BE CARVING OUT SOME SPECIAL RULE. THIS IS NOT THE FACT. THE FACT IS THAT THE LAW SAYS THAT EVIDENCE WITHIN RELATIONSHIP VIOLENCE CASES, THIS NOTION OF TRANSACTIONAL EVIDENCE DOES IN FACT COME IN. MR. GOLDBERG WILL DISCUSS PRESENT LAW NOT ONLY RELATING TO STALKING, BUT CASES THAT GO BACK TO 1909 AND A LONG LINE OF CASES THAT STAND FOR THIS CRIME. IF ANY SPECIAL RULE WILL BE CARVED OUT TODAY, THAT WILL BE A RULE WHICH WOULD BE TO EXCLUDE THIS EVIDENCE, A RULE WHICH WOULD EXCLUDE THE EVIDENCE OF THE PATTERN OF ABUSE SUFFERED BY THIS VICTIM, A RULE WHICH WOULD EXCLUDE THE POLICIES THAT HAVE BEEN VOICED BY THE LEGISLATURE OF THIS STATE AND STATES AROUND THE COUNTRY AND THE FEDERAL GOVERNMENT, WHICH IS THAT ISSUES WITH REGARD TO BATTERED WOMEN, WITH REGARD TO SPOUSAL ABUSE SHOULD COME INTO THE LIGHT OF DAY. IN OUR ARGUMENT TODAY, WE BROKE UP — AND FOR THE COURT’S INFORMATION, MS. BODIN WILL GO THROUGH AND PRESENT THE FACTS AS WE PERCEIVE THE FACTS HERE, EXPLAIN HOW THEY FIT INTO A PATTERN, DESCRIBE THE FACTS OF THIS CASE FOR THE COURT. SHE WILL ALSO ADDRESS HEARSAY OBJECTIONS THAT HAVE BEEN MADE. THE COURT HAD SOME QUESTION WITH REGARD TO THE ARGUMENTS ABOUT THE DEFINITION OF ABUSE, AND I WILL BE RESPONDING TO THAT SHORTLY. MR. UELMEN ARGUED THAT ABUSE MEANS ONLY PHYSICAL VIOLENCE WITHIN THE NOTION OF FAMILY CODE SECTION 6203. AGAIN, THIS IS WHERE IT’S IMPORTANT TO LOOK AT WHERE THESE TERMS COME FROM AND WHAT THEY ARE BEING USED FOR. THE TERM “ABUSE” WITHIN DOMESTIC VIOLENCE IS USED FOR A VARIETY OF CONTROLLED MECHANISMS AND BEHAVIORS. THE KIND OF ABUSE WHICH CONSTITUTES DOMESTIC VIOLENCE IS INTIMIDATION, VERBAL ABUSE AS IN CONTROLLING A PERSON. WE HEARD EARLIER ABOUT VERBAL ABUSE, AND IT WAS JUST AN ARGUMENT OF THE KIND OF MITIGATING FACTS. THE KIND OF VERBAL ABUSE AND INTIMIDATION THAT WE SEE WITH DOMESTIC VIOLENCE CASES IS BELITTLING THE VICTIM, CALLING HER NAMES, RUNNING HER DOWN. THE INCIDENTS THAT WE WILL BE HEARING ABOUT IN THIS CASE, TELLING HER SHE IS A BIG FAT PIG IN PUBLIC, GRABBING HER CROTCH, SAYING, “THIS IS MINE. THIS IS WHERE MY CHILDREN COME FROM,” THAT IS HUMILIATION, THAT IS CONTROL MECHANISMS, THAT IS VERBAL ABUSE, USING EMOTIONAL ABUSE. “EMOTIONAL ABUSE” IS A TERM THAT IS RECOGNIZED IN THE LITERATURE THAT STARTED WITH LENORE WALKER AND HAS GONE THROUGH THE MAINSTREAM OF THE LITERATURE, EMOTIONAL ABUSE BEING CONTROL OF THE WOMAN THROUGH PUTTING HER DOWN, TELLING HER SHE’S CRAZY, MITIGATING WHAT OCCURS WITHIN THE HOME, INCONSISTENT BEHAVIORS, THE KIND OF EXPLOSIVE RAGE WITH NO PATTERN. THAT’S EMOTIONAL ABUSE AND IT’S PART OF THE CONTROL CYCLE. ISOLATION; CUTTING A WOMAN OFF FROM HER SUPPORT SYSTEMS, SUPPORT SYSTEMS THAT ANYONE NEEDS WITHIN THE WORLD, LIMITING HER FRIENDS WHO SHE CAN SEE, WHO SHE CAN TALK TO, WHAT CLOTHES SHE CAN WEAR, CAN SHE WORK OUT OF THE HOME, JUST THE KIND OF THINGS THAT WERE DONE IN THIS CASE. MINIMIZING — DENYING, MINIMIZING THE VIOLENCE, THAT IS SOMETHING THAT HAS BEEN CONSISTENT THROUGHOUT THE COURSE OF THIS CASE. IT IS SOMETHING WHICH IS CLASSIC WITHIN AN ABUSIVE RELATIONSHIP, FOR THE BATTERER TO MINIMIZE WHAT HAS OCCURRED. “IT’S JUST A FAMILY PROBLEM. IT WAS NO BIG THING. WE WERE JUST ARGUING. WE WERE WRESTLING. WE HAD TOO MUCH TO DRINK AND IT JUST KIND OF GOT OUT OF HAND,” SAME KIND OF ARGUMENTS WE HEARD TO — EXACTLY THE KIND OF BEHAVIORS THAT A BATTERER EXISTS. USING CHILDREN, THREATENING TO TAKE AWAY CHILDREN, THREATENING TO SOMEHOW AFFECT IN — ESPECIALLY IN DIVORCE, CUSTODIAL RIGHTS, THREATENING TO AFFECT A WOMAN’S FINANCIAL STATE OF WELL-BEING SO SHE CAN’T SUPPORT HER KIDS OR TAKE CARE OF THEM, WRITING HER A LETTER TELLING HER SHE’S GOING TO GO TO JAIL AND TAKE OUT — TAKE AWAY ALL THE MONEY THAT SHE HAS, TAKE AWAY HER ABILITY TO SUPPORT HER CHILDREN. USING MALE PRIVILEGE; IT IS MAKING ALL THE DECISIONS, NOT GIVING HER A ROLE WITHIN THE RELATIONSHIP, BEING THE MASTER OF THE CASTLE, THE CENTER OF ATTENTION, THE PERSON THAT WHENEVER ANYONE GOES — WHEREVER YOU GO, THE ATTENTION HAS TO CENTER AROUND THE BATTERER, JUST AS IN THIS CASE. ECONOMIC ABUSE, USING MONEY AS A CONTROLLING MECHANISM, DECIDING HOW MUCH MONEY SHE COULD HAVE, MAKING SURE SHE DOESN’T WORK, THREATENING TO TAKE MONEY AWAY FROM HER THAT SHE MIGHT HAVE AND USING COERCION AND THREATS, PHYSICAL THREATS, “I’M GOING TO HURT YOU, I’M GOING TO KILL YOU, I’M GOING TO BEAT YOU.” THOSE ARE ALL DIFFERENT TYPES OF ABUSE, DIFFERENT TYPES OF CONDUCT, DIFFERENT TYPES OF CONDUCT THAT WE SEE IN THIS CASE. THEY ABSOLUTELY ARE SIMILAR AND THEY ABSOLUTELY ARE LINKED. AND HOW THEY ARE SIMILAR AND LINKED IS BECAUSE THEY ARE ALL BEHAVIORS OF CONTROL, THEY ARE ALL BEHAVIORS OF POWER. AND IMPRINTED ON TOP OF ALL THESE IS “PHYSICAL VIOLENCE.” AND LATER IN THE PRESENTATION, WHEN I’M DISCUSSING BATTERED WOMAN’S SYNDROME, I WILL EXPLAIN THIS MORE WITH REGARD TO WHAT THAT COMMONLY MEANS IS POWER AND CONTROL, WHICH WILL EXPLAIN THE INTERRELATIONSHIP OF THE DIFFERENT FORMS OF ABUSES. MR. GOLDBERG WILL THEN ADDRESS THE APPROPRIATENESS OF THIS EVIDENCE UNDER CERTAIN THEORIES OF ADMISSIBILITY, THE LEGAL ARGUMENTS, TALK ABOUT THE TRANSACTIONAL ANALYSIS THAT WE TALKED ABOUT, WHY THIS LEGALLY — THIS NOTION, SUPPORT OF THIS EVIDENCE COMING IN AS PART OF THIS TRANSACTION OF THIS HOMICIDE. HOWEVER, IT ALSO COMES IN UNDER TRADITIONALLY 1101(B). WE WILL ADDRESS DUE PROCESS CONCERNS THAT WERE ADDRESSED IN OUR BRIEF, BUT NOT ADDRESSED TODAY IN ARGUMENTS AND DEAL WITH SOME OF THE ISSUES UNDER 352. WE’LL THEN ADDRESS THE COURT THEN WITH USE OF EXPERT TESTIMONY IN CASES OF DOMESTIC VIOLENCE AND SPECIFICALLY 1107 OF THE EVIDENCE CODE. AND JUST A FOOTNOTE ON THAT. I WILL GET INTO MORE DETAIL. IT MUST BE KEPT IN MIND, 1107 IS NOT A STATUTE WHICH WAS INTENDED TO BE AN EXCLUSIONARY DEVICE. IT WAS A STATUTE WHICH BECAME THE GENESIS, THE SEED. ITS DEVELOPMENT WAS A STATUTE WHICH WOULD BRING THIS EVIDENCE BEFORE THE LIGHT OF DAY. 1107 STARTED FROM CASES IN WHICH A WOMAN HAD KILLED HER BATTERER, AND THE DEFENDANT SOUGHT TO BRING THIS EVIDENCE IN TO EXPLAIN HER CONDUCT. AS MR. UELMEN SAID, IT BASICALLY AROSE AROUND THE TIME ARIS WAS DECIDED. NOW, WE WILL TALK ABOUT ARIS BECAUSE I ACTUALLY DISAGREE WITH HIS INTERPRETATION A BIT. AND I CERTAINLY WILL ADDRESS THAT, BUT THIS RULE AROSE AS A RESULT OF INCLUSION. LOOKING AT THE LEGISLATIVE HISTORY OF THIS STATUTE — MISS BODIN WILL ADDRESS THAT. SHE WAS PART OF THAT LEGISLATIVE HISTORY, WAS PRESENT FOR EVERY HEARING ON IT, IN FACT WROTE SEVERAL OF THE ADDENDUMS TO THAT STATUTE, WAS ACTUALLY PART OF IT. WHAT WAS CLEAR FROM THAT LEGISLATURE INTENT WAS THAT THIS WAS A STATUTE OF INCLUSION. IT SPECIFICALLY IS STATED WITHIN THE LEGISLATIVE INTENT OF THAT STATUTE, WITHIN THE AUTHOR’S INTENT THAT HE DID NOT INTEND TO ABROGATE ANY STANDING CASE LAW OR OTHER STATUTORY DECISION WITH REGARD TO THE INCLUSION OF BATTERED WOMAN’S SYNDROME EVIDENCE. SO THE NOTION THAT 1107 SOMEHOW NARROWS WHAT OTHER CASE LAW WE HAVE OUT THERE, THAT IS NOT BEHIND THAT STATUTE. IF THERE WERE OTHER METHODS WITHIN WHICH TO INTRODUCE THIS EVIDENCE BEYOND 1107, THEY STAND. BUT THE PROHIBITION IN 1107 IS LINKED DIRECTLY TO BLEDSOE AND BALKER AND THE LEGISLATIVE INTENT WHICH PROVIDES THE COURT WITH AN ANALOGOUS, JUST LIMITED TO BLEDSOE AND BALKER, THAT PROHIBITION OF CERTAIN TYPE OF EVIDENCE IS LIMITED TO ONE THING. AND THAT’S THE KIND OF EXCLUSION THAT THERE IS IN BLEDSOE WITH RAPE TRAUMA SYNDROME OR BALKER AND CHILD ACCOMMODATION SYNDROME WHERE WHAT I AM PROHIBITED FROM DOING AS A PROSECUTOR IS TO ASK A DOCTOR, “HAVE YOU EXAMINED THE VICTIM; AND IF YOU HAVE, DO YOU THINK SHE WAS RAPED?” I CAN’T — WE DON’T INTEND TO DO THAT, USE THE EVIDENCE THAT TYPE OF WAY. THAT IS THE LIMITATION THAT IS PLACED ON BATTERED WOMAN’S SYNDROME UNDER 1107. TO SUGGEST THAT IT’S GREATER THAN THAT, TO SUGGEST THAT IT GOES FARTHER THAN THAT IS NOT WITHIN THE CASE LAW OR THE STATUTES OR THE LEGISLATIVE INTENT. AS THIS CASE HAS PROGRESSED, WE HAVE DEALT WITH A LOT OF BRAND NEW ISSUES IN THE LAW, ESPECIALLY WITH REGARD TO PRESENTING EVIDENCE, ISSUES WITH REGARD TO PUBLIC ACCESS TO TRIALS. IN FACT, IN MANY WAYS, WHAT IS OCCURRING WITHIN THIS TRIAL AND THE WAY THAT THIS TRIAL IS BEING PRESENTED PERCEIVED BY THE PUBLIC WILL TAKE US INTO PROBABLY THE 21ST CENTURY AS TO WHAT WILL OCCUR IN TRIAL, AND WE’RE SETTING THE PRECEDENCE. AND THAT IS SOMETHING CERTAINLY TO BE APPLAUDED. AS WE DO THAT, WE CERTAINLY CANNOT DO THAT WITH 19TH CENTURY SENSIBILITIES. WOMEN HAVE BEEN KILLED IN THIS COUNTRY BECAUSE THEIR ABUSE HAS BEEN KEPT IN THE SHADOWS. DOMESTIC VIOLENCE AND WHAT OCCURS TO A WOMAN, ONE OF THE DYNAMICS OF THAT ENTIRE STRUGGLE IS ONE OF SECRECY, SHADOWS AND VEIL. IT CERTAINLY HAS TO BE BROUGHT OUT INTO THE LIGHT AT SOME POINT. AND WHEN WE HAVE A STATE OF THE LAW WHERE THE STATE OF THE LAW IS, THAT IS SO CLEAR THAT WHEN A WOMEN HAS KILLED HER BATTERER, THAT THAT EVIDENCE MUST COME IN, IT’S REVERSIBLE EVIDENCE ERROR FOR IT NOT TO COME IN, THEN CERTAINLY IF THAT GROUP OF WOMEN NEED TO BE PROTECTED BY THAT EVIDENCE COMING IN, AS IT WELL SHOULD, THEN WOMEN THAT HAVE BEEN KILLED BY THEIR BATTERERS CERTAINLY NEED TO HAVE THE COURT OR THE TRIER OF FACT LISTEN TO THAT EVIDENCE TO MAKE THE PROPER JUDGMENT. PEOPLE VERSUS DAY, VERY RECENT CASE WHICH INTERPRETED 1107, THE COURT SPECIFICALLY ADDRESSED THAT WHEN IT SAID THAT — I GOT A CITE FOR THE COURT — 2 CAL. APP. 4 409 — WHERE IT TALKED ABOUT THE TRIER OF FACT, IN MANY CASES, HAS THE JUROR SITTING THERE, HAVE NEVER BEEN RAPED, HAVE NOT LIVED WITHIN A BATTERER — AS A BATTERED PERSON, HAVE NO PERSONAL EXPERIENCE WITH CHILD ABUSE. AND FOR THEM TO UNDERSTAND WHAT OCCURS IN THAT CASE, THEY NEED TO HEAR EXPERT TESTIMONY WHICH EXPLAINS IT. IN FACT, THE COURT GOES ON TO SAY IN THAT CASE THAT:

“DEPRIVING THE FINDER OF FACT OF SUCH UNDERSTANDING MAY WELL LEAD TO A CONCLUSION BASED ON MISCONCEPTIONS UPHELD IN GOOD FAITH, THAT SUCH CONCEPTIONS ARE HELD IN GOOD FAITH AND NO WAY LESSENS THE MAGNITUDE OF THE ERROR AND THE INJUSTICE THAT WILL RESULT.” WHAT WILL BE DEMONSTRATED FROM THIS ARGUMENT IS THAT UNDER THE FACTS THAT WE HAVE HERE, THE LEGAL ANALYSIS AND THE POLICY AND LEGAL ANALYSIS WITH REGARD TO EXPERT TESTIMONY, IT WILL BECOME CLEAR THAT THE HISTORY OF ABUSE, THE PATTERN OF ABUSE SUFFERED BY THE VICTIM, NICOLE BROWN SIMPSON, IN THIS CASE MUST COME INTO THIS TRIAL. THERE WAS A MOTIVE FOR THIS KILLING, AND THIS MOTIVE WAS THE SAME MOTIVE WHICH IS PRESENT IN THE MAJORITY OF SPOUSAL, WIFE KILLINGS; AND THAT IS ONE OF ESTRANGEMENT AND JEALOUSY. THAT IS CLEARLY WHAT THE MOTIVE IS IN THIS CASE. WE HAVE HEARD ABOUT TEXTBOOK TYPES OF CASES, DRUG CASES, DOMESTIC VIOLENCE CASES. THAT IS A TEXTBOOK MOTIVE, AND WE HAVE A DUTY AS PROSECUTORS TO PROVE MOTIVE. THE EVIDENCE THAT WE DESCRIBED HERE TODAY PROVES THAT. WE HAVE A DUTY AS PROSECUTORS TO PROVE INTENT. WE WILL PROVE INTENT; AND THE INTENT THAT WE WILL PROVE IS THE INTENT TO CONTROL, THE INTENT THAT WAS PRESENT THROUGHOUT THE COURSE OF THIS RELATIONSHIP, THE CONTROL THAT STARTED ON A FAIRLY LOW LEVEL, THAT STARTED WITH DECIDING WHO SHE COULD SEE, WHAT SHE COULD WEAR, WHERE SHE COULD GO, CONTROL THAT ESCALATED WITH PUBLIC HUMILIATION, PHYSICAL VIOLENCE, PROPERTY DESTRUCTION, VERY SPECIFIC PROPERTY DESTRUCTION, WHICH IS CALLED SYMBOLIC VIOLENCE, DESTROYING THE PICTURES OF HER FAMILY, POSSESSIONS THAT WERE VERY CLOSE TO HER. IT ESCALATES. AT ONE POINT, SHE ATTEMPTED TO GET AWAY. AND WHEN SHE DID, SHE FINALLY DID SOMETHING WHICH MARKED IN THIS DEFENDANT’S MIND THAT THE RELATIONSHIP WAS OVER. AND IT’S VERY COMMON IN THESE RELATIONSHIPS THAT THE DEFENDANT IS OF THE MIND SET THAT, “I CONTROL THIS WOMAN. SHE IS MINE. I HAVE TO HAVE HER. SHE IS THE ONLY WOMAN IN THE WORLD FOR ME. I CAN’T LIVE WITHOUT HER. IF I CAN’T HAVE HER, NO ONE WILL.” THOSE ARE STATEMENTS WHICH ARE CLASSIC IN THESE TYPES OF CASES. THEY ARE STATEMENTS THAT ARE HERE. AND WHAT HAPPENS WHEN THAT MESSAGE FINALLY GETS CLEAR — THROUGH TO THE BATTERER, THAT HE CAN’T HAVE HER ANYMORE, THAT SHE IS FINALLY GOING TO ESCAPE THIS CYCLE, SHE’S FINALLY BUILT UP THE COURAGE TO GO, THAT THE CONTROL DOESN’T — THE ACTS OF CONTROL THAT HAVE BEEN GOING ON AND ESCALATING DON’T WORK ANYMORE. THERE HAS TO BE ANOTHER CONTROL MECHANISM THAT COMES INTO PLACE, BECAUSE IF HE CAN’T HAVE HER, NO ONE WILL. AND WHAT HAPPENS IS THAT THE ESTRANGEMENT, THE JEALOUSY COMES UP, WELLS UP WITHIN HIM AND THERE HAS TO BE A MECHANISM, CONTROL EMPLOYED. AND THAT LAST AND TERMINAL MECHANISM OF CONTROL, THAT WAY TO MAKE SURE THAT THE BATTERER CAN HAVE HER AND NO ONE ELSE WILL IS TO KILL HER. THAT IS CLEAR IN THE RESEARCH. IT IS CLEAR IN THE SCIENCES THAT WORK WITH BATTERERS. IT IS CLEAR IN THE SOCIAL POLICY. IT IS WHY SOME OF THE LEGISLATORS HAVE ENACTED STRONG STATUTES TO INTERVENE BATTERING IN A VERY LOW END TO PREVENT HOMICIDES. IT IS CLEAR FROM THE FACTS OF THIS CASE. YOUR HONOR, EVERY YEAR, AS WE HAVE HEARD, THERE ARE AT LEAST 2.5 MILLION WOMEN IN THE UNITED STATES THAT ARE AFFECTED BY DOMESTIC VIOLENCE. THE AMERICAN MEDICAL ASSOCIATION HAS RECENTLY REPORTED THAT ABOUT 35 — BETWEEN 22 PERCENT AND 35 PERCENT OF THE WOMEN VISITING EMERGENCY ROOMS EVERY YEAR ARE DOING SO BECAUSE OF AN INSTANT OF DOMESTIC VIOLENCE. MANY OF THESE WOMEN ARE INJURED AND KILLED BECAUSE THEIR VIOLENCE STAYS SECRET. THE VIOLENCE THAT OCCURS TO THEM STAYS IN THE SHADOW. NICOLE BROWN SIMPSON WAS ONE OF THESE WOMEN. AND UP UNTIL TODAY, UP UNTIL THIS TRIAL, HER ABUSE HAS BEEN HIDDEN TOO JUST LIKE IT IS WITH SO MANY OTHER WOMEN. NOW, AT LEAST AT THAT POINT WHERE HER BATTERER IS ON TRIAL FOR KILLING HER, THAT EVIDENCE WHICH EXPLAINS HER LIFE, EXPLAINS WHAT HAPPENED TO HER AND EXPLAINS WHY SHE WAS KILLED GOES TO THE HEART OF THE PEOPLE’S CASE, GOES TO THE HEART OF WHAT OCCURRED IN THIS RELATIONSHIP AND IS THE TRUTH. AND AS ZACK SAYS, THE PROCESS OF A TRIAL IS TO SEEK THE TRUTH, NOT PART OF IT, BUT ALL OF IT.

THE COURT: MS. BODIN.

MS. BODIN: YOUR HONOR, I’M GOING TO MAKE A FACTUAL PRESENTATION WITH REGARD TO THE ACTS OF VIOLENCE. I APPRECIATE THE COURT GIVING US A LIST OF ACTS. IT IS EXTREMELY HELPFUL AND BASICALLY COMPORTED WHAT WE HAD ALREADY SET UP FOR OURSELVES, AND I’M GOING TO TRY TO ANSWER THAT. SPECIFICALLY, THE COURT HAD ASKED US TO ADDRESS LEGAL THEORIES. AS I GO THROUGH MY ARGUMENT AND TALK ABOUT THE FACTS THAT ARE SPOKEN OF IN OUR BRIEF AND OF COURSE THE NEW ACTS THAT WE’VE TALKED ABOUT IN OUR ADDENDUM, I AM GOING TO TALK ABOUT THE LEGAL THEORIES THAT UNDER PIN — UNDER PIN, THE ADMISSION OF THESE ACTS. THE STATEMENT OF FACTS THAT I’M GOING TO MAKE TO THE COURT TODAY STARTS IN 1977 UNTIL THE TIME OF THE MURDER OF THE VICTIM BY THE DEFENDANT. THE ACTS OF ABUSE THAT WE ARE GOING TO TALK ABOUT WILL INCLUDE THE FOLLOWING: OBSESSIVE AND JEALOUS BEHAVIOR, PUBLIC HUMILIATION OF THE VICTIM, FINANCIAL MANIPULATION, THREATS OF VIOLENCE, ACTUAL PHYSICAL VIOLENCE, STALKING AND FINALLY THE MURDER ITSELF. THERE IS AN IMPRESSIVE BODY OF LITERATURE AND RESEARCH THAT HAS LOOKED INTO THE ISSUE OF DOMESTIC VIOLENCE. AND IN LAW, THERE IS EQUALLY AN IMPRESSIVE BODY OF LAW THAT LOOKS AT DOMESTIC VIOLENCE. THE TYPES OF ACTS THAT I HAVE JUST DESCRIBED TO THE COURT ARE ACTS THAT HAVE BEEN WELL ADDRESSED IN THE CASE LAW. WITH REGARD TO PROPERTY DESTRUCTION — AND THESE ARE CITED IN OUR BRIEF — THERE ARE TWO CASES, HELFEN AND HAYLOCK. AND THOSE CASES TALK ABOUT PROPERTY DESTRUCTION. BOTH OF THEM TALK ABOUT ARSON. AND WHAT THE COURT SAID IN BOTH OF THOSE CASES IS THAT PROPERTY DESTRUCTION GOES TO MOTIVE. PHYSICAL VIOLENCE IS DISCUSSED IN ZACK. THERE’S LOTS OF PHYSICAL VIOLENCE IN THE FACT PATTERN THAT I’M GOING TO TALK ABOUT AND SPECIFICALLY THAT GOES TO IDENTITY A PERMISSIBLE 1101(B) PURPOSE, AS IS MOTIVE. STALKING, IT’S TALKED ABOUT IN THE NICHOLAS CASE. AND PARTICULARLY STALKING AND STARING WHICH WE SEE IN THIS CASE, AND IN THE NICHOLAS CASE, THE COURT SAYS THAT GOES TO PREMEDITATION, WHICH WE HAVE TO PROVE IN THIS CASE. POSSESSIVENESS AND JEALOUSY GOES TO MOTIVE. AND THERE ARE THREE CASES CITED IN OUR BRIEF THAT TALK ABOUT THAT IN A DOMESTIC VIOLENCE CONTEXT. THOSE THREE CASES ARE THE DUMAS CASE, WHERE THE DEFENDANT STATED, “IF I CAN’T HAVE YOU, NOBODY ELSE CAN.” THAT UNFORTUNATELY BECOMES AN ECHO IN THIS CASE. THE SHAVER CASE, WHERE THE DEFENDANT ACCUSED THE VICTIM AND ULTIMATELY MURDERED HER — ACCUSED HER OF BEING WITH OTHER MEN AND ULTIMATELY KILLED HER BECAUSE OF IT. AND THE DANIELS CASE, WHICH TALKS ABOUT JEALOUSY, QUARRELS AND ENMITY, WHICH AGAIN UNFORTUNATELY IS A VERY FAMILIAR THEME IN THE FACT PATTERN I’M ABOUT TO DESCRIBE TO THIS COURT. AND FINALLY, FINANCIAL MANIPULATION. AND THAT IS DISCUSSED IN THE ARGENTOS CASE, WHICH IS NOT A DOMESTIC VIOLENCE CASE, BUT TALKS ABOUT THE RELATIONSHIP BETWEEN TWO GOLD MINERS. RELATIONSHIP VIOLENCE IS NOT LIMITED MERELY TO DOMESTIC VIOLENCE. AND THE CASE LAW IN CALIFORNIA BEGINNING IN THE EARLY 1920’S IS REPLETE WITH CASES INVOLVING RELATIONSHIP VIOLENCE. WE’VE CITED THEM IN OUR BRIEF AND I’VE CITED SOME OF THEM TO THE COURT. NICOLE BROWN SIMPSON MET THE DEFENDANT IN 1977. THE PHYSICAL VIOLENCE IN THIS RELATIONSHIP BEGAN EARLY. IN FACT, IT BEGAN IMMEDIATELY, BECAUSE WHAT WE KNOW IS THAT IN 1977 OR 1978, THERE WAS A VERY LOUD ARGUMENT OVERHEARD BY THEIR NEIGHBORS ON ASHTON STREET. THE NEIGHBORS WERE CONNIE AND STEVEN GOOD. THE PEOPLE HAVE CONDUCTED AN INTERVIEW WITH MS. GOOD. MS. GOOD STATES THAT SHE REMEMBERS THE INCIDENT VERY WELL. AND WHAT SHE REMEMBERS IS THIS: SHE COULD HEAR ARGUING. SHE COULD HEAR THE DEFENDANT YELLING AND CALLING THE VICTIM NAMES. SPECIFICALLY, HE CALLED HER A FUCKING BITCH AND A MOTHER FUCKER. SHE KNEW THE SOUND OF HIS VOICE. SHE HAD HEARD IT BEFORE AROUND THE APARTMENT. SHE HAD HEARD IT IN AN ELEVATOR AND THAT IT HAD A UNIQUE SOUND. SHE HEARD THUMPING AND THE VOICE OF A FEMALE CRYING. A DAY OR TWO LATER, SHE SAW THE VICTIM AND THE DEFENDANT IN AN ELEVATOR, AND THE VICTIM HAD TWO BLACK EYES. MR. UELMEN HAS ARGUED THAT BECAUSE THIS HAPPENED SO LONG AGO, THAT THIS IS ATTENUATED, THAT IT COULDN’T POSSIBLY HAVE ANYTHING TO DO WITH THE MURDER. THERE IS A THEME OF PHYSICAL VIOLENCE. AND I’LL KEEP ON TALKING ABOUT THIS AS I GO THROUGH THE STATEMENT OF FACTS, THAT WE HAVE STEALTH THROUGH THIS STATEMENT OF FACTS AND THROUGH THE LIFE OF NICOLE BROWN SIMPSON THAT IS CONSISTENT, THAT IS VICIOUS, THAT ESCALATED TO OTHER FORMS OF ABUSIVE BEHAVIOR AND IT IS BUT THE PRELUDE TO WHAT ULTIMATELY WAS A HOMICIDE. IT SHOWS THE START OF A LONG HISTORY OF DOMESTIC VIOLENCE. THERE ARE DIARY ENTRIES THAT MR. UELMEN HAS ALLUDED TO IN HIS ARGUMENT. SPECIFICALLY, THERE IS A DIARY ENTRY WITH REGARD TO A TIME IN 1977 WHERE THE DEFENDANT SLAMMED THE VICTIM INTO A WALL. AND THERE WAS A WITNESS TO THAT, AND THAT WITNESS WAS AL COWLINGS. NEXT, THERE IS AN ENTRY IN THAT DOCUMENT, THAT DIARY, WITH REGARD TO A TRIP TO NEW YORK WHERE THE DEFENDANT PUBLICLY SLAPPED HER AND CALLED HER MOTHER A WHORE, AND SHE HAD CALLED FOR HELP ON THE STREET. THERE IS AN INCIDENT IN 1982 WHERE THE VICTIM WENT TO A FRIEND OF THE DEFENDANT’S BY THE NAME OF WAYNE HUGHES. MR. UELMEN HAS STATED THAT IS RANK HEARSAY. WE HAVE A WITNESS. THEY HAVE COPIES OF OUR INTERVIEW WITH THAT WITNESS, THAT IS MR. WAYNE HUGHES, WITH REGARD TO NICOLE BROWN SIMPSON COMING TO HIS HOUSE IN THE MIDDLE OF THE NIGHT WITH A RED SPOT BEGGING HIM TO TALK TO THE DEFENDANT ABOUT THE DEFENDANT’S PHYSICAL VIOLENCE TOWARDS NICOLE BROWN SIMPSON. SHE WAS EXTREMELY UPSET AND BORE THE MARKS OF VIOLENCE. IN 1978, THERE WAS AN INCIDENT THAT IS RECORDED IN THE DIARY WITH REGARD TO THE DEFENDANT HITTING HER IN THE WINE CELLAR AND LOCKING HER IN THERE. THERE WAS ALSO, IN THAT SAME DOCUMENT, A NOTATION WITH REGARD TO A SAN JOSE TRACK MEET WHERE HE BACKHANDED HER IN THE CAR AND THEN LEFT HER ON A ROADSIDE. AND FINALLY IN THAT DOCUMENT, THERE IS A MENTION OF A HIT THAT SHE TOOK, A BEATING THAT SHE TOOK BECAUSE THE DEFENDANT FOUND A NOTE THAT SHE WROTE TO HERSELF. NOW, MR. UELMEN HAS DISCUSSED THE PROBLEM — HEARSAY PROBLEM OF GETTING IN DIARY ENTRIES. AND THAT’S WELL TAKEN. BUT I THINK THE DEFENSE SHOULD BE ON NOTICE THAT WE CERTAINLY ARE GOING TO CROSS-EXAMINE WITNESSES WHO THE DEFENSE PRESENT, PERHAPS THE DEFENDANT HIMSELF, WITH REGARD TO THESE INCIDENTS. WE PUT THEM IN TO SHOW THE COURT WHAT WE HAVE. FURTHERMORE, WE ARE HAVING OBVIOUSLY AN EXPERT LOOK AT THIS CASE AND WE ARE HAVING THE EXPERT USE THOSE INCIDENTS, THOSE DIARY INCIDENTS AS PART OF THE FOUNDATION FOR THE OPINION THAT THE EXPERT WILL FORM IN THIS CASE. FINALLY — AND THE COURT KNOWS THAT THERE HAS BEEN A LOT OF DISCUSSION ABOUT DISCOVERY IN THIS CASE, AND WE HAVE AN ON-GOING INVESTIGATION. IT HAS BEEN THE CASE WHERE WE HAVE HAD DIARY ENTRIES THAT HAVE FINALLY BEEN CORROBORATED BY KNOWN WITNESSES. AND THAT’S OCCURRED A NUMBER OF TIMES IN THIS CASE. AND SO WE DID INCLUDE THEM IN OUR STATEMENT OF FACTS AND WE DID WANT TO PUT EVERYBODY ON NOTICE THAT WE DID HAVE THEM AND WE ARE CONTINUING TO INVESTIGATE THEM. IN 1978, THERE WAS AN INCIDENT THAT OCCURRED AT THE LA CANTINA — I GUESS — IT IS A BAR I THINK AS CHARACTERIZED BY MR. UELMEN. IN 1978, NICOLE BROWN SIMPSON, THE DEFENDANT, DENISE BROWN AND ED MC CABE WENT TO LA CANTINA WHERE THEY CONTINUED THEIR GET-TOGETHER BACK TO THE ROCKINGHAM ADDRESS. BACK AT THE ROCKINGHAM ADDRESS, THEY WERE TALKING, HAVING A SOCIAL OCCASION, DENISE BROWN COMMENTED THAT O.J. TOOK NICOLE FOR GRANTED. IT WAS A SIMPLE STATEMENT. THE DEFENDANT LITERALLY THREW A FIT. WHAT HE DID WAS, HE THREW THEM ALL OUT OF THE HOUSE, HE SLAMMED NICOLE BROWN SIMPSON INTO A WALL, HE THREW HER OUT THE DOOR FROM A FOYER ENTRANCE AND HE BROKE ALL THE FAMILY PICTURES. WE HAVE AN EYEWITNESS TO THIS. IT DOES SHOW A LONG HISTORY OF QUARRELING AND A PHYSICAL ABUSE AGAIN IN 1978, WHERE ONCE AGAIN, PICKING UP THE THREAD OF PHYSICAL ABUSE. WE’RE ALSO PICKING UP THE THREAD NOW OF PROPERTY DAMAGE, DESTROYING FAMILY PICTURES. IN 1983 TO 1984, WE HAVE AN INTERVIEW WITH A WOMAN WHO WORKED FOR THE SIMPSON’S BY THE NAME OF MARIA BAUR. THERE WAS A STATEMENT TAKEN FROM HER THAT SHE OBSERVED NICOLE BROWN SIMPSON WALKING DOWN THE DRIVEWAY LITERALLY HOLDING HERSELF AND CRYING. MARIA INQUIRED OF HER, “WHAT’S WRONG, NICOLE?” AND SHE SAID, “YOU KNOW, YOU DON’T WANT TO KNOW. YOU DON’T WANT TO GET INVOLVED.” AND WHEN MARIA WENT INTO THE HOUSE, SHE FOUND GLASS ALL UP AND DOWN THE STAIRS, AND SHE CLEANED IT UP. IN FACT, THERE IS A CONSISTENT THEME THROUGHOUT THIS FACT PATTERN THAT THE DEFENDANT LIKES TO DESTROY PHOTOS OF THE VICTIM. HE DESTROYS FAMILY PHOTOS, A FORM OF HUMILIATION, A FORM OF DEGRADATION, A DESTRUCTION OF CHERISHED MOMENTOES, THINGS THAT ARE BORNE CLOSE TO THE HEART, THINGS THAT REALLY MEAN SOMETHING, THINGS THAT PERHAPS COULD BE REPLACED MONETARILY, BUT THE SENTIMENTAL VALUE IS EXCESSIVE TO A PERSON. BY 1986, THE VICTIM IS RELATING IN HER DIARY THAT SHE HAD GONE OUT FOR AN EVENING WITH SOME FRIENDS, GOT IN AN ARGUMENT AND THE DEFENDANT BEAT HER. THERE IS MEDICAL EVIDENCE FROM THIS INCIDENT FROM DR. MARTIN ALPERT. WHAT THE VICTIM RELATED WAS THAT SHE HAD HAD A BICYCLE ACCIDENT. THE DOCTOR SAYS THAT BASED ON THE NATURE OF THE INJURY, THE TYPE OF INJURY THAT SHE SUSTAINED, IT WAS IMPLAUSIBLE TO BELIEVE THAT SHE HAD A BICYCLE ACCIDENT. WHAT WE KNOW — AND IF AN EXPERT WILL TESTIFY AND SHOULD TESTIFY IN A CASE INVOLVING DOMESTIC VIOLENCE — IS THAT VERY FREQUENTLY, VICTIMS OF DOMESTIC VIOLENCE DO NOT REPORT HOW THEY OBTAIN THEIR INJURY. THEY’RE AFRAID TO DO IT AND THEY’RE PARTICULARLY AFRAID TO DO IT WHEN THEY’RE ACCOMPANIED FOR MEDICAL TREATMENT BY THEIR BATTERER. AND THAT IS TRUE IN THIS CASE. SHE WAS ACCOMPANIED BY THE DEFENDANT FOR MEDICAL TREATMENT. ONCE AGAIN, AN INCIDENT OF PHYSICAL ABUSE AND SHOWING ONCE AGAIN CONTINUOUS CONDUCT INVOLVING PHYSICAL ABUSE. BY 1985 — AND IN 1985, WE HAVE AN INCIDENT INVOLVING THE SMASHING OF A WHITE MERCEDEZ THAT BELONGED TO THE VICTIM. WE HAVE TWO ACCOUNTS OF THIS. MR. UELMEN STATED THAT THE ONLY ACCOUNT OF THIS IS THROUGH THE MEMORANDUM WRITTEN BY DETECTIVE MARK FUHRMAN. THAT IS SIMPLY NOT SO, THAT HE HAS MISCHARACTERIZED THE FACTS TO THIS COURT. WE HAVE ANOTHER REPORT BY AN INDIVIDUAL BY THE NAME OF SERGEANT MARK DAY, WHO AT THAT TIME IN 1985 WORKED FOR WESTEC SECURITY, AND HE RESPONDED TO THE INCIDENT. HE’S WRITTEN A REPORT. THE DEFENSE HAS IT. WE HAVE ANOTHER WITNESS BESIDES DETECTIVE MARK FUHRMAN. AND I MIGHT ALSO ADD THAT THERE IS A CHALLENGE IN THIS HEARING TO THE CREDIBILITY OF DETECTIVE FUHRMAN. CREDIBILITY IS NOT AN ISSUE IN A 402 HEARING. BUT WE DO HAVE WITNESSES ON THIS ISSUE AND WE HAVE EYEWITNESSES ON THIS ISSUE. ONCE AGAIN, AN EXAMPLE OF PROPERTY DAMAGE, A DESTRUCTION OF WHAT PROBABLY WAS A STATUS SYMBOL OF A BELOVED OBJECT TO A BATTERED WOMAN. IN 1988, THERE IS AN — EXCUSE ME — THERE IS AN INCIDENT RECANTED IN THE DIARY, AND IT WAS WITNESSED BY DENISE BROWN, WHEREIN THE DEFENDANT BECAME ANGRY BECAUSE NICOLE BROWN SIMPSON ALLOWED A GAY MAN TO KISS HER CHILD. AND WHAT DENISE SAW WAS THAT THE DEFENDANT GOT MAD, YELLED AT NICOLE MERELY BECAUSE SHE LET A STRANGER KISS HER BABY BECAUSE THE MAN THOUGHT THAT HER CHILD WAS CUTE, AND NICOLE LEFT THE CAR THAT THEY WERE RIDING IN AND HAD TO RIDE BACK TO THE HOTEL WITH HER PARENTS. DENISE ALSO RELATES THAT DURING THE COURSE OF THEIR VACATION IN HAWAII, NICOLE WORE A BATHING SUIT COVER-UP. NICOLE REPORTS IN HER DIARY THAT SHE HAD BEEN BEATEN UP TO THE EXTENT THAT SHE WAS WEARING THAT COVER-UP. IN 1988, NICOLE BROWN SIMPSON RECORDS IN A THREE-PAGE LETTER THAT SHE HAD SCHEDULED AN OUTING FOR HERSELF AND HER CHILDREN TO “DISNEY ON ICE”. THIS WAS A TIME WHEN SHE WAS TWO MONTHS’ PREGNANT. SHE HAD ASKED THE DEFENDANT IF HE WOULD LIKE TO GO WITH HER AND SHE BELIEVED THAT HE WAS WILLING TO GO. BY THE TIME THAT IT CAME TIME TO ACTUALLY GO TO “DISNEY ON ICE”, HE DIDN’T WANT TO GO. AND SO SHE JUST SIMPLY TOOK THE CHILDREN AND WENT WITH HER MOTHER AND HER SISTER, DOMINIQUE, BY HERSELF WITH THE CHILDREN, LEAVING THE DEFENDANT TO DO WHATEVER HE WAS DOING. WHEN SHE GOT HOME, HE BEGAN TO DENIGRATE HER. HE BEGAN TO CALL HER A FAT SLOB, TO CALL HER A PIG. WHEN SHE WAS TWO MONTHS’ PREGNANT, HE MADE HER LEAVE THE HOUSE WITH SIDNEY, HER CHILD, AND TOLD HER OVER THE PHONE THAT HE HAD A GUN. AND WE KNOW OF COURSE THAT THE DEFENDANT HAS A GUN COLLECTION. THAT OCCURS IN THE FACT PATTERN. AND THEN AL COWLINGS WAS PRESENT FOR A PART OF IT, THAT HE SORT OF TOOK CHARGE OF SIDNEY SO THAT NICOLE COULD LEAVE THE ROOM AND THE DEFENDANT COULD FOLLOW HER OUT, DENIGRATING HER THE WHOLE TIME. THERE IS AN INCIDENT REPORTED IN 1986 TO 1987 BY AN INDIVIDUAL BY THE NAME OF ALBERT AGUILARA — AND THAT OCCURS IN OUR ADDENDUM THAT WE FILED — WHERE HE SEES NICOLE BROWN SIMPSON GET HIT BY THE DEFENDANT AT VICTORIA BEACH. IT APPEARED TO HIM THAT THEY WERE SIMPLY PLAYING, NICOLE WAS TEASING THE DEFENDANT ON THE BEACH, AND THEN HE JUST BASICALLY REACHED UP AND SLAPPED HER IN THE FACE. ONCE AGAIN OF COURSE, I’M SURE THERE’S AN ARGUMENT THAT THERE’S ATTENUATION IN TIME. BUT ONCE AGAIN, I WOULD REITERATE TO THE COURT THAT IT REINFORCES ONCE AGAIN THE PATTERNS OF PHYSICAL VIOLENCE, THE CONSISTENT THEME THAT RUNS THROUGHOUT THIS CASE. AND THEN WE GET TO 1989, NEW YEAR’S DAY. THERE IS A 911 TAPE THAT THE PEOPLE HAVE, THE DEFENSE HAS WHEREIN IN THE BACKGROUND OF THE TAPE, YOU CAN HEAR A WOMAN SCREAMING. THE POLICE REPORT TO THE HOUSE ON ROCKINGHAM. OFFICER EDWARDS FROM THE LOS ANGELES POLICE DEPARTMENT GETS THERE, AND HE CALLS AND SAYS, YOU KNOW, “WHAT’S GOING ON? WHO’S SCREAMING? I’M NOT GOING TO LEAVE HERE UNTIL I FIND OUT WHO’S SCREAMING.” HE’S TOLD SIMPLY TO GO AWAY PRESUMABLY BY THE HOUSEKEEPER MICHELLE. AND WHILE HE’S THERE, NICOLE BROWN SIMPSON RUNS OUT WEARING ONLY A PAIR OF SWEAT PANTS AND A BRA. SHE YELLED OUT TO HIM, “HE’S GOING TO KILL ME.” IT WAS CLEAR TO OFFICER EDWARDS THAT SHE HAD BEEN BEATEN UP. BOTH NICOLE BROWN SIMPSON AND THE DEFENDANT TELL THE POLICE THAT THEY HAD BEEN OUT THERE AT LEAST EIGHT TIMES BEFORE. THE DEFENDANT TELLS THE POLICE THAT THIS WAS A FAMILY MATTER. AND IN FACT, WHAT HE DID WAS, HE FOLLOWED HER OUT THERE. AFTER THE TIME THAT THE POLICE SAW HER RUNNING OUT SAYING, “HE’S GOING TO KILL ME,” THEN THE DEFENDANT ARRIVES IN A BATHROBE. AND INSTEAD OF ADDRESSING THE POLICE, WHAT HE DOES IS, HE STARTS YELLING AT NICOLE BROWN SIMPSON, SUCH THAT THE POLICE HAVE TO GIVE HER A JACKET AND LET HER SIT IN THE POLICE CAR. WE HAVE PICTURES OF THAT INCIDENT THAT WERE TAKEN BY THE LOS ANGELES POLICE DEPARTMENT. MR. UELMEN HAS CHARACTERIZED THIS AS A BEDROOM ARGUMENT, SOME SLAPPING AND SOME HITTING. ONE PICTURE IS WORTH A THOUSAND WORDS, AND I’LL NOW SHOW THAT PICTURE TO THE COURT.

THE COURT: SHOW THOSE TO COUNSEL, PLEASE.

MS. BODIN: YES. WE —

(MS. BODIN COMPLIES.)

MR. COCHRAN: WE WOULD REQUEST THAT THOSE PICTURES BE SHOWN TO YOU, NOT THE SCREEN.

MS. BODIN: FOR PURPOSES OF THIS HEARING, I’M GOING TO MARK THESE SO THEY WILL BE IDENTIFIED AT SOME LATER TIME SHOULD WE NEED TO HAVE A RECORD OF THIS.

THE COURT: YES.

MS. BODIN: THERE ARE ACTUALLY A SERIES OF THREE PHOTOS. THE FIRST PHOTO THAT I’M LOOKING AT IS A PHOTOGRAPH OF NICOLE BROWN SIMPSON, AND SHE’S WEARING A PAIR OF SWEAT PANTS, AND THEY APPEAR DIRTY ON ONE SIDE. I AM MARKING THAT AS P-1 AND I’M MARKING THAT IN THE RIGHT-HAND CORNER. MAY I HAVE JUST A MOMENT TO CONFER WITH MR. DARDEN?

THE COURT: CERTAINLY.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MS. BODIN: YOUR HONOR, I AM GOING TO CONFER — I’M NOT FINISHED CONFERRING WITH MR. DARDEN. WHAT I’M GOING TO DO IS, I’M GOING TO MARK IT IN THE UPPER RIGHT-HAND CORNER OF EACH PHOTOGRAPH. WE HAVE SOME WORK THAT WE NEED TO DO ON THOSE. AND IF I DON’T MARK IT IN THE RIGHT PLACE, IT’S GOING TO COMPROMISE OUR ABILITY TO DO THAT WORK. SO WITH REGARD TO P-1, THAT’S THE PHOTOGRAPH OF NICOLE BROWN SIMPSON STANDING WITH DIRTY SWEAT PANTS. AND I’M SHOWING THESE TO MR. UELMEN SO HE CAN SEE HOW I’M MARKING THEM. P-2 IS A PHOTOGRAPH OF NICOLE BROWN SIMPSON PULLING HER HAIR BACK AND SHOWING HER FACE. AND FINALLY, P-3, WHICH IS ALSO A PHOTOGRAPH — IT’S MORE OF A FULL FACIAL PHOTO — SHE’S PULLING ALL THE HAIR OFF HER FACE. AND I AM MARKING THAT AS P-3.

(PEO’S 1, 2 AND 3 FOR ID = PHOTOGRAPHS)

MS. BODIN: MAY I APPROACH?

THE COURT: PLEASE. THANK YOU. ALL RIGHT, MS. BODIN. I’VE HAD THE OPPORTUNITY TO REVIEW THESE PHOTOGRAPHS.

MS. BODIN: ALL RIGHT, YOUR HONOR. IN ADDITION TO THE PICTURES THAT I’VE PRESENTED NOW TO THE COURT, THERE ARE ALSO THREE APOLOGY LETTERS THAT WE HAVE RECEIVED OR THAT HAVE COME INTO OUR POSSESSION. THOSE THREE APOLOGY LETTERS WERE SEIZED FROM THE SAFETY DEPOSIT BOX FOLLOWING THE DEATH OF NICOLE BROWN SIMPSON. WE ACTUALLY WILL HAVE THOSE AVAILABLE. WE HAVE SHOWN THOSE TO COUNSEL IN CHAMBERS. I’VE SENT FOR MY INVESTIGATOR, AND I’LL LET THE COURT TAKE A LOOK AT THOSE ALSO IN JUST A MOMENT. WE ALSO HAVE A PRENUPTIAL — A LETTER REGARDING A PRENUPTIAL AGREEMENT FROM THE DEFENDANT BASICALLY STATING THAT IF HE EVER BEAT HER UP AGAIN WITH REFERENCE TO THIS INCIDENT, THAT THE PRENUPTIAL AGREEMENT WOULD BASICALLY BE VOIDED. WE HAVE MEDICAL RECORDS. WE ALSO HAVE A SWORN DEPOSITION WHEREIN THE DEFENDANT ADOPTS HIS LETTER WITH REGARD TO THE PRENUPTIAL AGREEMENT. THERE IS ALSO A TAPE OF THE DEFENDANT TALKING ABOUT THIS INCIDENT ON ESPN, AND HE HAD A CONVERSATION WITH AN OFFICER FARRELL OF THE LOS ANGELES POLICE DEPARTMENT BASICALLY ADOPTING THE FACT THAT THIS HAD OCCURRED. NOW, THERE HAS BEEN SOME QUESTION WITH REGARD TO THE PEOPLE’S ABILITY TO GET IN THE STATEMENTS THAT WERE MADE IN THIS CASE BY THE VICTIM. AND I MIGHT ADD, WE WOULD LIKE TO GET IN SOME STATEMENTS BY THE DEFENDANT IN THIS CASE BECAUSE HE COMES OUT — HE’S ROARING AT HER WHEN HE COMES OUT THERE. AND I THINK IT IS IMPORTANT TO UNDERSTAND WHAT’S HAPPENING IN THIS TRANSACTION, AND I WOULD LIKE THE COURT — AND WE DO TALK ABOUT IT IN OUR BRIEF — TO LOOK AT THE CASE OF PEOPLE VERSUS FARMER. BASICALLY THAT IS A CASE THAT TALKS ABOUT HEARSAY EXCEPTION AND EXCITED UTTERANCE PURSUANT TO EVIDENCE CODE SECTION 1240. WHAT THAT CASE STANDS FOR IS THAT THE CRUCIAL ELEMENTS WITH REGARD TO WHETHER OR NOT THIS TYPE OF HEARSAY STATEMENT IS ADMISSIBLE IS WHETHER THE MENTAL STATE OF THE SPEAKER IS THAT SUCH THAT THE STATEMENT IS BEING MADE UNDER THE STRESS THAT WAS PRODUCED BY THE EVENT. WE HAVE ALSO SHOWN IN OUR BRIEF THE CASE OF PEOPLE VERSUS WASHINGTON. PEOPLE VERSUS WASHINGTON BASICALLY LAYS OUT THE ELEMENTS OF 1240 AND STATES THAT IT MUST BE AN OCCURRENCE THAT IS STARTLING ENOUGH TO PRODUCE NERVOUS EXCITEMENT AND RENDER THE UTTERANCE SPONTANEOUS. THERE MUST BE ACTUAL NERVOUS EXCITEMENT AND IT MUST DOMINATE AT THE TIME OF THE UTTERANCE, AND THE UTTERANCE ITSELF MUST BE ABOUT THE STARTLING CIRCUMSTANCE. THE CASE OF PEOPLE V. HUEY STANDS FOR THE PROPOSITION THAT SUCH STATEMENTS MAY BE OFFERED TO PROVE THE EXISTENCE OF THE FACT AND TO IDENTIFY THE ASSAILANT. THE INCIDENT THAT THE COURT IS LOOKING AT IS VERY SIMILAR TO THE HUEY CASE. IN THE HUEY CASE, THE VICTIM RAN OUT OF THE HOUSE CALLING FOR HELP FROM THE POLICE. THE VICTIM GAVE — THEN GAVE A STATEMENT TO THE POLICE ABOUT THE EVENT THAT TRANSPIRED. IN OUR CASE, THE VICTIM RUNS OUT AND SAYS, “HE’S TRYING TO KILL ME.” SHE’S LITERALLY IN FLIGHT. SHE GAVE A STATEMENT TO THE POLICE AFTER THEY HAD WRAPPED A COAT AROUND HER. SHE TOLD THE POLICE THAT THE DEFENDANT HAD TOLD HER DURING THE BEATING THAT HE WOULD KILL HER, AND THE DEFENDANT CONTINUED THE STRESS OF THE INCIDENT THEN BY COMING OUTSIDE AND ACTUALLY YELLING AT HER WHILE THE POLICE WERE THERE. THE REPEATING OF THE STATEMENT OF THE DEFENDANT, “I’LL KILL YOU,” CONSTITUTES COMPOUND HEARSAY, AND WE RECOGNIZE THAT. HOWEVER, HIS STATEMENT IS AN ADMISSION OF WHAT HIS INTENT WAS UNDER EVIDENCE CODE SECTION 1220. HER EXCITED UTTERANCE COMES IN UNDER 1240. SHE ALSO BLURTED SOMETHING OUT THAT’S VERY INTERESTING. SHE BLURTED OUT, “YOU KNOW, YOU GUYS NEVER DO ANYTHING ABOUT THIS,” AND THAT’S A VERY INTERESTING STATEMENT BECAUSE IT EXPLAINS I THINK WHAT’S VERY COMMON IN DOMESTIC VIOLENCE CASES; THE FRUSTRATION WITH LAW ENFORCEMENT AGENCIES. AND HISTORICALLY, NOT A LOT HAS BEEN DONE FOR BATTERED WOMEN, EXPLAINS WHY SHE STAYED WITH HIM, WHICH IS THE QUESTION PROBABLY THE JURY IS GOING TO HAVE, THAT SHE DIDN’T FEEL PROTECTED; AND INDEED, SHE WASN’T PROTECTED. I THINK IT’S IMPORTANT ALSO TO NOTE THAT DEFENDANT’S APOLOGY LETTERS WITH REGARD TO THIS INCIDENT ARE ALSO A HALLMARK OF DOMESTIC VIOLENCE. THERE’S A CYCLE OF VIOLENCE THAT OCCURS. IT’S A THREE-PART CYCLE. BASICALLY YOU HAVE THE TENSION BUILDING PHASE. TENSION BUILDING PHASE INVOLVES EXACTLY WHAT IT SOUNDS LIKE; TENSIONS ARE BUILDING UP. THEN YOU HAVE ACUTE BATTERING PHASE. WE ARE LOOKING — IN THIS INCIDENT, WE’RE LOOKING AT AN ACUTE BATTERING INCIDENT. HE HITS HER. HE’S RAGING. HE’S OUT OF CONTROL. AND THEN THERE’S A THIRD PHASE, THE CONTRITION PHASE, THE LOVING RESPIT WHERE VERY CHARACTERISTICALLY, WHAT A DEFENDANT WILL SAY IS, HE’LL SAY, “I AM SORRY,” SENDS FLOWERS. AND WE KNOW THE DEFENDANT SENDS FLOWERS. I MEAN HE LEAVES FLOWERS ON THE HOME OF HIS EX-WIFE IN THE MIDDLE OF THE NIGHT WHILE HE’S STALKING HER. THIS IS SOMETHING THAT HE DOES, AND IT’S PART OF THE CONTRITION PHASE. YOUR HONOR, I DO NOW HAVE IN COURT THE APOLOGY LETTERS THAT I REFERENCED EARLIER. AND AT THE COURT’S PLEASURE, MAY I SIMPLY APPROACH? AND WHAT I AM GOING TO DO — I’M TRYING TO THINK HOW I CAN MARK THESE.

THE COURT: I THINK WE HAVE PHOTOCOPIES SOMEWHERE ALREADY.

MS. BODIN: YOU PROBABLY HAVE —

MR. UELMEN: THEY ARE ATTACHED TO THE MOTION FOR HANDWRITING EXEMPLAR. WE HAVE STIPULATED TO MR. SIMPSON —

MS. BODIN: THEN WE ACCEPT THAT STIPULATION.

THE COURT: ALL RIGHT. FOR THE PURPOSES OF THE RECORD FOR THIS HEARING, WE WILL MARK BY REFERENCE THE EXHIBITS TO THE HANDWRITING EXEMPLAR MOTION FILED BY THE PEOPLE, AND THOSE EXHIBITS WILL BE DEEMED EXHIBITS — THE EXHIBITS ATTACHED TO THAT MOTION WILL BE EXHIBITS FOR THE PURPOSE OF THIS HEARING COLLECTIVELY AS PEOPLE’S 4. THANK YOU.

(PEO’S 4 FOR ID = EXHIBITS ATTACHED TO EXEMPLAR MOTION)

THE COURT: ALL RIGHT. MS. BODIN, I DO HAVE THOSE AGAIN IN FRONT OF ME. I DID READ THEM FOR THE PURPOSE OF RULING ON THE MOTION FOR HANDWRITING EXEMPLAR.

MS. BODIN: ALL RIGHT.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MS. BODIN: CAN I HAVE JUST A MOMENT, YOUR HONOR?

THE COURT: CERTAINLY

(BRIEF PAUSE.)

MS. BODIN: ALSO, YOUR HONOR, I HAVE A TRANSCRIPT OF THE TAPE WHICH THE COURT SHOULD HAVE IN ITS DOCUMENTS. DOES THE COURT HAVE IT?

THE COURT: THE 1989?

MS. BODIN: YES.

THE COURT: I DON’T THINK I DO. I HAVE THE 1993 911 TAPE.

MS. BODIN: YOUR HONOR, I SPOKE TO MR. UELMEN. I DO HAVE A COPY OF THE PRENUPTIAL AGREEMENT, AND AT THE COURT’S PLEASURE — WHAT I CAN DO IS MARK IT I BELIEVE P —

THE COURT: 5.

MS. BODIN: 5, YEAH, IN THE LOWER RIGHT-HAND CORNER. MAY I PRESENT THAT TO THE COURT?

THE COURT: PLEASE.

(PEO’S 5 FOR ID = PRENUPTIAL AGREEMENT)

MS. BODIN: YOUR HONOR, DID YOU SAY YOU HAD THE TRANSCRIPT OR NOT?

THE COURT: NO. I INDICATED I HAD NOT SEEN IT.

MR. DARDEN: 1989?

THE COURT: 1989. CORRECT.

MS. BODIN: THAT WILL BE MARKED P-6, YOUR HONOR. MR. GORDON IS GOING TO BRING THAT TO YOU.

(PEO’S 6 FOR ID = TRANSCRIPT)

MS. BODIN: I’M NOT GOING TO PRESENT THE COURT WITH THE SWORN DEPOSITION, BUT I KNOW WE WILL — AT TRIAL TIME BE DOING THAT. I’M GOING TO ARGUE TO THIS COURT THAT THE —

THE COURT: WHY DON’T YOU GIVE ME TWO SECONDS TO READ THE TRANSCRIPT.

MS. BODIN: I AM SORRY, YOUR HONOR. I THOUGHT YOU LOOKED AT ME, YOUR HONOR. I APOLOGIZE.

THE COURT: NO.

(BRIEF PAUSE.)

THE COURT: ALL RIGHT. I’VE READ PEOPLE’S 6. MISS BODIN.

MS. BODIN: THANK YOU, YOUR HONOR. I’M NOW GOING TO ARGUE TO THIS COURT THAT THE STATEMENT THAT NICOLE BROWN SIMPSON MADE AND THEN HER SUBSEQUENT STATEMENT TO THE POLICE ARE ADMISSIBLE PURSUANT TO 1240. THERE WAS CLEARLY STARTLING OCCURRENCE. THERE’S LOTS OF EVIDENCE TO SHOW THAT SHE WAS RUNNING, THE DEFENDANT BASICALLY IS COMING OUT RIGHT AFTER HER ROARING AT HER. BASICALLY THE POLICE ARE COMING TO AN INCIDENT THAT IS IN PROGRESS. IT IS A STARTLING OCCURRENCE. HER NERVOUS EXCITEMENT SURELY DOMINATED. SHE IS RUNNING OUT IN SWEATS AND A BRA TO A MALE POLICE OFFICER SCREAMING, “HE’S GOING TO KILL ME.” I CAN’T IMAGINE A STRONGER CASE FOR NERVOUS EXCITEMENT DOMINATING AT THE TIME OF AN UTTERANCE. BUT THEN THE DEFENDANT COMES OUT AND HE EXTENDS THE TRAUMA TO HER BY YELLING AT HER SUCH THAT SHE HAS TO BE TAKEN INTO A POLICE CAR AND MAKES A STATEMENT TO THE POLICE. NOW, CLEARLY HER STATEMENT TO THE POLICE INCLUDED SOME QUESTIONING. THE QUESTIONING IS NOT A BAR TO THE ADMISSION OF 1240 STATEMENTS, AND FARMER DOES STAND FOR THAT PROPOSITION. AND IN FACT, IN FARMER, WHICH CONSTITUTES ADMISSIONS OF A 911 TAPE PURSUANT TO 1240, THERE’S LOTS OF QUESTIONING BY A DISPATCHER. IN FACT, IT’S ARGUABLE THAT THE STATEMENTS THAT WE HAVE IN THIS CASE ARE EVEN MORE SPONTANEOUS BECAUSE IN THE FARMER CASE, THE 911 OPERATOR ACTUALLY HAD CALLED THE HOME BACK AND SHE TALKED TO TWO SEPARATE PEOPLE. FIRST SHE TALKED TO THE VICTIM’S SISTER AND THEN SHE TALKED TO THE VICTIM IN FARMER. IN THIS CASE, WE HAVE A WOMAN BASICALLY RUNNING OUT IN THE MIDST OF A TRANSACTION AND MAKING A STATEMENT. WE’VE MET EVERY ELEMENT OF 1240. WE ARE GOING TO ASK THE COURT TO ADMIT HER STATEMENTS AS WELL AS THE CORROBORATING EVIDENCE, THE 911 TAPES, THE SCREAMING, THE PICTURES, THREE APOLOGY LETTERS, THE PRENUPTIAL AGREEMENT, SUBSEQUENTLY A TRIAL MEDICAL RECORD, SWORN DEPOSITION, AND WE DO HAVE A TAPE, I SHOULD TELL THE COURT THAT, ALTHOUGH I’M NOT GOING TO PRESENT IT IN THIS HEARING, WHERE THE DEFENDANT TALKS ABOUT THIS ON ESPN, TALKS ABOUT THIS INCIDENT, HE MINIMIZES IT, HE SAYS IT WAS AN ACCIDENT, SAYS — AT ONE POINT, HE TELLS OFFICER FARRELL ON A LATER OCCASION FROM THE LOS ANGELES POLICE DEPARTMENT THAT IT WAS AN ACCIDENT. THAT’S REALLY INTERESTING I THINK IN TERMS OF LOOKING AT DOMESTIC VIOLENCE BECAUSE BATTERERS TYPICALLY MINIMIZE WHAT THEY DO. THEY REALLY DON’T UNDERSTAND THE IMPACT OF WHAT THEY DO. BUT THEY DO BEAT. AND THIS DEFENDANT HIT HER ON THIS OCCASION. I’M ASKING THE COURT TO ENTER THAT STATEMENT PURSUANT TO 1240, HER SUBSEQUENT STATEMENT TO THE POLICE. IN 1988 TO 1989, THERE WAS AN INCIDENT WITNESSED BY ALFRED ACOSTA, A LIMOUSINE DRIVER, WHEREIN HE SAW THE DEFENDANT BACKHAND NICOLE BROWN SIMPSON IN THE CAR. WHAT WAS NOT MENTIONED IN THE DEFENDANT’S PRESENTATION OF FACTS WAS THAT SHE WAS SO FRIGHTENED APPARENTLY THAT SHE INVITED A LIMOUSINE DRIVER INTO HER HOUSE, ARGUABLY TO PROTECT HERSELF. AND WHEN THEY GOT IN THE HOUSE, HE SAW THE DEFENDANT ACTUALLY LUNGE AT NICOLE BROWN SIMPSON, YET ANOTHER EXAMPLE OF A STRONG AND CONSISTENT THEME OF PHYSICAL VIOLENCE ONCE AGAIN APPEARING IN THE RELATIONSHIP BETWEEN THE DEFENDANT AND THE VICTIM. IN 1989, THERE WAS AN INCIDENT THAT WAS WITNESSED BY JULIENNE HENDRICKS AND DENISE BROWN THAT OCCURRED AT THE MALIBU RED ONION. MR. UELMEN EUPHEMISTICALLY CHARACTERIZED THIS AS A VERBAL ARGUMENT. THE TRUE FACTS OF THIS INCIDENT ARE THIS: THAT THE DEFENDANT AND THE VICTIM WERE PRESENT AT THE MALIBU RED ONION WITH JULIENNE HENDRICKS AND DENISE BROWN. IN PUBLIC, THE DEFENDANT GRABBED THE CROTCH OF NICOLE BROWN SIMPSON AND SAID, “THIS IS MINE. THIS IS WHERE MY CHILDREN COME FROM.” THIS ISN’T A BUMPY MARRIAGE. THIS ISN’T A VERBAL ARGUMENT. THIS IS OUT AND OUT DENIGRATION AND PUBLIC HUMILIATION. BUT IT DIDN’T STOP THERE, BECAUSE WHEN IT GOT TO THE CAR, THE DEFENDANT ACTUALLY PUSHED HER OUT OF THE CAR. WE THEN HAVE AN INCIDENT THAT OCCURRED IN 1991 WHERE EDDIE REYNOZA HAD A CONVERSATION WITH THE DEFENDANT WHERE HE TOLD REYNOZA THAT IF HE CAUGHT ANY ONE OF HIS WIFE’S BOYFRIENDS DRIVING ANY OF HIS CARS, HE WOULD QUOTE, CUT HIS FUCKING HEAD OFF. AND THAT DISPLAYS THE DEFENDANT’S JEALOUSY, HIS NEED TO CONTROL NICOLE BROWN SIMPSON AND IT IS CHARACTERISTIC OF A BATTERING RELATIONSHIP AND IS PERMISSIBLE UNDER THE CASE LAW THAT I’VE ALREADY CITED TO THE COURT. IN 1992, NICOLE BROWN SIMPSON SEPARATED FROM THE DEFENDANT. JUDITHA BROWN, THE MOTHER OF NICOLE BROWN SIMPSON, HEARD THE DEFENDANT SAY WHENEVER HE SAW NICOLE WITH ANOTHER MAN, THAT HE COMPLAINED THAT HE WAS PAYING FOR THAT MAN’S MEALS, YET ANOTHER EXAMPLE OF THE DEFENDANT’S JEALOUSY. I SHOULD ADD, YOU KNOW, THE DEFENSE HAS TAKEN EACH ONE OF THESE INCIDENTS AND PICKED IT APART AND THE DEFENSE HAS SAID, “WELL, YOU KNOW, HOW IS THIS RELEVANT TO A MURDER THAT OCCURRED IN 1994?” THESE ACTS WHEN TAKEN AS A WHOLE DEMONSTRATE THAT THE DEFENDANT WAS POSSESSIVE, THAT HE WAS JEALOUS, THAT HE NEEDED TO DOMINATE, THAT HE NEEDED TO CONTROL NOT JUST BY USING PHYSICAL VIOLENCE. PHYSICAL VIOLENCE IS A VERY GOOD TOOL FOR CONTROLLING SOMEBODY, BUT IT’S NOT THE ONLY WAY YOU CAN CONTROL SOMEBODY. YOU CAN CONTROL SOMEBODY WITH JEALOUSY BY PUBLIC HUMILIATION AND ALL THE WAYS THAT I TALKED ABOUT, PROPERTY DAMAGE. AND THIS IS YET ANOTHER EXAMPLE OF THAT TYPE OF CONTROL. AFTER THEY SEPARATED, THE DEFENDANT ALSO TOLD JUDITHA BROWN THAT HE SHOULD LET HER GO, “BUT I CAN’T LET HER GO. I CAN’T LET HER GO,” YET ANOTHER EXAMPLE OF HIS JEALOUSY, HIS OBSESSIVENESS, HIS NEED TO POSSESS HER. THEY TRIED TO RECONCILE, BUT COULD NOT AND TRIED TO RECONCILE FOR A TWO-YEAR PERIOD. THE QUESTION I THINK, AND IT WILL ARISE CERTAINLY IN THE MINDS OF THE JURY, WELL, WHY WOULD A BATTERED WOMAN EVER RECONCILE WITH HER BATTERER? THERE’S A LOT OF REASONS WHY A BATTERED WOMAN WOULD RECONCILE WITH A BATTERER. NUMBER ONE, WE KNOW FROM THE EMPIRICAL EVIDENCE OR THE EMPIRICAL STUDIES THAT A BATTERED WOMAN IS IN MORE DANGER WHEN SHE SEPARATES THAN WHEN SHE STAYS. SHE HAS EVERY REASON TO BE AFRAID THAT WHEN SHE LEAVES HIM, SHE’S IN MORE DANGER. SHE IS TO PLACATE, TO MODERATE, TO COPE WITH THE SITUATION. EXPERT CAN SPEAK TO THIS. AND WHAT MAY BE TO THE DEFENSE SEEMINGLY UNIMPORTANT EVENTS DEPICT A CLASSIC PATTERN OF DOMESTIC VIOLENCE, A CLASSIC PATTERN THAT SPEAKS TO PERMISSIBLE 1101(B) PURPOSES. IN 1993, NICOLE BROWN SIMPSON AND SOME FRIENDS WENT TO THE CALIFORNIA SUSHI RESTAURANT. AND THERE IS — THERE WAS AN ARGUMENT THAT ENSUED. AND THERE WAS A POLICE OFFICER, OFFICER ECKERT FROM THE HERMOSA BEACH POLICE DEPARTMENT, WHO WROTE A MEMORANDUM WITH REGARD TO THIS INCIDENT WHEREIN HE SAW THE DEFENDANT YELLING IN PUBLIC AT NICOLE BROWN SIMPSON WHILE SHE WAS SITTING ON A CURB. IT IS YET AGAIN AN EXAMPLE OF HUMILIATION. THERE HAD BEEN AN ARGUMENT AT THIS POINT OVER A MAN THAT NICOLE HAD GONE OUT WITH, AN EXAMPLE OF JEALOUSY. AND IN FACT, THE DEFENDANT WAS SO ANGRY THAT HE ACTUALLY FOLLOWED ANOTHER WOMAN INTO A BATHROOM AT THE RESTAURANT. IN 1993, IN OCTOBER, WE HAVE ANOTHER BREAKING AND ENTERING OR ANOTHER PROPERTY DAMAGE INCIDENT AT THE GRETNA GREEN RESIDENCE OF NICOLE BROWN SIMPSON. WE HAVE A SERIES OF 911 TAPES WHERE NICOLE BROWN SIMPSON CALLS AND REQUESTS THE POLICE TO HELP. ON THOSE 911 TAPES, THE VOICE OF THE DEFENDANT ON THE SECOND TAPE CAN BE HEARD SWEARING, FILTHY LANGUAGE, MAKING REFERENCES TO SEEING NICOLE WITH KEITH ZLOMSOWITCH, YELLING, SCREAMING. AND THE NET RESULT OF THAT IS THAT THERE WAS A BROKEN DOWN DOOR AT THE GRETNA GREEN RESIDENCE. THERE IS A BASIS FOR THE ADMISSION OF THE STATEMENTS MADE ON THE 911 TAPE. THERE ARE ACTUALLY TWO SEPARATE CALLS. BASIS FOR THE ADMISSION ARE AS FOLLOWS: NUMBER ONE, EXCITED UTTERANCES UNDER EVIDENCE CODE SECTION 1240. NUMBER TWO, CONTEMPORANEOUS UTTERANCES, BECAUSE WHAT IS DEPICTED ON THESE 911 TAPES IS A TRANSACTION IN PROGRESS. YOU CAN ACTUALLY HEAR THE DEFENDANT IN THE BACKGROUND AND YOU CAN HEAR NICOLE BROWN SIMPSON TALKING ABOUT THE DOOR BEING BROKEN IN. THERE ARE ADMISSIONS MADE BY THE DEFENDANT WITH REGARD TO THE INCIDENTS INVOLVING KEITH ZLOMSOWITCH. THE DEFENSE HAS MADE THE POINT THAT WE CANNOT ENTER HER STATEMENT, THAT THE DEFENDANT WAS GOING, AND I QUOTE, FUCKING NUTS AS INADMISSIBLE OPINION EVIDENCE. AND I’LL ADDRESS THAT IN A MINUTE. IT IS NOT INADMISSIBLE OPINION EVIDENCE. FURTHERMORE, THE 911 TAPES FALL WITHIN THE BUSINESS RECORD EXCEPTION UNDER 1271, BUT WE STILL MUST NEED A HEARSAY EXCEPTION, AND I UNDERSTAND THAT. AND FINALLY, THERE’S AN ARGUMENT MADE WITH REGARD TO RIGHTS TO CONFRONTATION IN THE ENTRANCE OF A HEARSAY STATEMENT INTO COURT. AND I AM GOING TO TALK ABOUT ALL OF THESE. AND I’LL START FIRST WITH THE CONTEMPORANEOUS UTTERANCE. A CONTEMPORANEOUS UTTERANCE IS OFFERED TO EXPLAIN THE CONDUCT OF A DECLARANT, AND IT’S MADE WHILE AN INCIDENT IS IN PROGRESS. THERE ARE STATEMENTS MADE ON THE TAPE WHILE THIS INCIDENT WAS IN PROGRESS. YOU CAN ACTUALLY HEAR THE VOICE OF THE DEFENDANT, AS I’VE SAID PREVIOUSLY. FURTHERMORE, SOME OF THESE STATEMENTS CONSTITUTE ADMISSIONS PURSUANT TO EVIDENCE CODE SECTION 1220. AN ADMISSION IS ANY STATEMENT OFFERED WHEN IT CAN INCRIMINATE, AND THESE ARE INCRIMINATING STATEMENTS SIMPLY BY THE RAGE AND THE OBSCENITY DISPLAYED AND THE FACT THAT HE’S BREAKING INTO HER HOUSE AND BREAKING DOWN THE DOOR IS INCRIMINATING. THE FACT THAT HE ADMITS TO WATCHING HER IN ACTIVE INTIMACY WITH KEITH ZLOMSOWITCH IS ALSO AN ADMISSION. FURTHERMORE, IT’S AN EXCITED UTTERANCE UNDER 1240. NOW, I’VE TALKED ABOUT EXCITED UTTERANCE IN MY PREVIOUS ARGUMENT. COUNSEL HAS TALKED ABOUT HOW THIS WAS A 14-MINUTE CONVERSATION. WELL, IT’S TWO PHONE CALLS AND THE DISPATCHER IS QUESTIONING HER WHILE THIS LITERALLY IS GOING ON. AND AGAIN, IT’S SIMILAR TO FARMER WHERE THERE IS QUESTIONING GOING ON, VERY EXTENDED QUESTIONING. THAT DOES NOT DEPRIVE THE UTTERANCES OF SPONTANEITY AS REQUIRED BY 1240. SHE’S NARRATING THE EVENT AND IT’S MADE UNDER THE STRESS OF EXCITEMENT. SHE WAS LITERALLY BEING ASSAULTED THE WHOLE TIME THAT THESE 911 TAPES WERE GOING ON. AND THEN THERE’S THE ISSUE OF INADMISSIBLE OPINION EVIDENCE. WELL, THERE’S A CASE RIGHT ON POINT, AND THAT’S THE CASE OF PEOPLE V. GARCIA. WHAT THAT CASE STATES IS THAT THIS TYPE OF STATEMENT CAN COME IN. AND WHAT — IN THE GARCIA CASE, THE VICTIM STATED, “HE’S GOING CRAZY. HE IS GOING TO KILL ME.” THIS IS VERY SIMILAR TO THE STATEMENTS MADE IN THIS CASE. AND WHEN MR. UELMEN MADE HIS FACTUAL PRESENTATION, HE SAID THAT SHE NEVER FELT THREATENED, AND THAT SIMPLY IS NOT TRUE. SHE DID FEEL THREATENED. IN FACT, I QUOTE — I BELIEVE SHE STATES THAT, “HE’S GOING TO BEAT THE SHIT OUT OF ME.” THAT’S CORRECT. THAT’S EXACTLY WHAT SHE SAID. AND IN THE TRANSCRIPT — YEAH. AT PAGE 3, LINE 21 — I’M NOW SHOWING IT TO COUNSEL — THE 911 OPERATOR ASSISTED HER SAYS, “OKAY, STAY ON THE LINE.” SHE SAYS, “I DON’T WANT TO STAY ON THE LINE. HE IS GOING TO BEAT THE SHIT OUT OF ME.” THEY’RE QUOTES. YOUR HONOR, I’M GOING TO MARK THIS AS P-7.

THE COURT: ALL RIGHT. TRANSCRIPT OF THE 911 TAPE. I TAKE IT THAT’S BOTH TAPES?

MS. BODIN: IT’S THE FIRST ONE, YOUR HONOR. AND THE SECOND ONE IS BEING TRANSCRIBED AND WE HAVE GIVEN COPIES OF IT, OF THE TAPE TO THE DEFENSE, AND I BELIEVE WE’VE GIVEN A COPY OF THE FIRST TAPE, THE TRANSCRIPT TO THE DEFENSE. I GUESS — I KNOW MR. UELMEN IS LOOKING AT IT, SO I KNOW FOR SURE HE HAS IT.

(PEO’S 7 FOR ID = TRANSCRIPT OF 911 TAPE)

THE COURT: LET ME JUST CHECK AND SEE IF THIS IS THE ONE I HAVE.

(BRIEF PAUSE.)

MS. BODIN: FINALLY, WITH REGARD TO THE CONFRONTATION ISSUE, A NUMBER OF CASES HAVE HELD IF THE HEARSAY EXCEPTION CAN BE MET, THE CONFRONTATION RIGHTS OF A DEFENDANT ARE NOT VIOLATED. AND THREE CASES STAND FOR THAT PROPOSITION, ALTHOUGH THAT’S THE CONSISTENT THEME THROUGHOUT ALL HEARSAY EXCEPTION CASES. BUT THE CASE OF FARMER THAT I’VE ALREADY CITED TO THE COURT AT PAGE 905 TO 906 AND IN THE HUEY CASE AT PAGE 1388 TO 1394 — THERE’S A THIRD CASE I’LL GIVE TO THE COURT, PEOPLE V. TRIPLE BALANCE AT 5 CAL. APP. 4TH 1235, ALL STANDING FOR THE PROPOSITION THAT ADMISSION OF HEARSAY DOES NOT VIOLATE THE RIGHTS OF THE DEFENDANT WITH REGARD TO CONFRONTATION. IN 1993, WHILE NICOLE BROWN SIMPSON WAS LIVING AT GRETNA GREEN, SHE HAD NEIGHBORS, AND THE NEIGHBORS SAW THE DEFENDANT ON A NUMBER OF OCCASIONS OUTSIDE HER HOUSE. ON ONE OCCASION, THEY ACTUALLY CALLED THE POLICE. THEY BELIEVED THIS HAPPENED SOMETIME SHORTLY AFTER NICOLE BROWN SIMPSON HAD GONE TO CABO SAN LUCAS. THEY SAW MR. SIMPSON OUTSIDE HER HOME LURKING AROUND AND TRYING TO LOOK IN THE WINDOWS. THEY ACTUALLY CALLED 911, AND THEN THE POLICE CAME TO THIS INCIDENT. THEY ALSO SAW THE DEFENDANT LEAVE FLOWERS ON HER DOORSTEP. AND THOUGH MR. UELMEN PERHAPS HAS TRIED TO CHARACTERIZE THIS AS SOMEHOW NORMAL OR SOMETHING THAT GOES ON WHEN YOU HAVE CHILDREN, I FIND IT ODD SOMEONE WOULD LEAVE FLOWERS AND BE HANGING AROUND THE WINDOWS OF THE HOME OF SOMEBODY IN THE MIDDLE OF THE NIGHT EVEN IF YOU HAD BEEN MARRIED TO THEM BEFORE. AND TO CHARACTERIZE THIS AS BEING IN ANY WAY NORMAL OR CHARACTERISTIC OF A SO-CALLED BUMPY MARRIAGE IS SIMPLY A MISCHARACTERIZATION. ON ONE OCCASION, THEY ACTUALLY SAW HIM BARGE IN ON HER. THEN THERE ARE INCIDENTS WITH REGARD TO KEITH ZLOMSOWITCH. THE DEFENDANT ACTUALLY ADMITTED THAT HE HAD SEEN NICOLE BROWN SIMPSON AND KEITH IN AN ACT OF INTIMACY, THAT HE HAD LOOKED IN THE WINDOW. AND I BELIEVE THAT MR. UELMEN TALKED ABOUT THIS AS BEING CIVILIZED BEHAVIOR AND THAT WHAT WAS AN OTHERWISE OUTRAGEOUS CIRCUMSTANCE WAS ESSENTIALLY WELL HANDLED BY THE DEFENDANT. BUT MY QUESTION TO THIS COURT AND TO MR. UELMEN IS, WHO CREATED THE OUTRAGE HERE? THE OUTRAGE IS THAT THE DEFENDANT WAS LOOKING THROUGH THE WINDOW WHERE HE HAD ABSOLUTELY NO BUSINESS BEING THERE, NONE WHATSOEVER. AND IT WASN’T THE FIRST TIME HE DID THAT. WE KNOW THAT BECAUSE WE HAVE THE TESTIMONY — RATHER THE INTERVIEWS WITH THE COLBY’S. AND FURTHERMORE, WE KNOW FROM MR. ZLOMSOWITCH THAT HE SHOWED UP ONE NIGHT WHEN SHE WAS HAVING DINNER AT MEZALUNA. HE WENT INTO THE RESTAURANT, ACTUALLY SAT THERE AND STARED AT HER. THAT IS — IN FRONT OF HER FRIENDS IS LITERALLY PUBLICLY HUMILIATING. HE ALSO ON ANOTHER OCCASION AT A RESTAURANT CALLED TRYST, T-R-Y-S-T, TOLD KEITH THAT NICOLE WAS STILL HIS WIFE, AND HE SAT THERE ONCE AGAIN IN THE RESTAURANT AND STARED AT THEM. HE STALKS, HE STARES, HE HUMILIATES IN PUBLIC. STALKING IS ONE OF THE HALLMARKS OF HUMILIATING BEHAVIOR. IT LITERALLY STEALS THE SECURITY AWAY FROM ITS VICTIM. AND IN FACT, WE KNOW THAT THE SECURITY OF NICOLE BROWN SIMPSON WAS BEING STOLEN AWAY FROM HER LITTLE BY LITTLE BECAUSE AS WE GET LATER AND LATER IN HER RELATIONSHIP WITH THE DEFENDANT, SHE IS CONTINUALLY EXPRESSING MORE AND MORE FEAR. SHE’S TELLING EVERYBODY SHE’S AFRAID OF HIM. AND YET ANOTHER STALKING INCIDENT IN 1994 WHEN SHE WAS HAVING COFFEE WITH JEFFEREY KELLER AND RON GOLDMAN, THE DEFENDANT SUDDENLY APPEARED AND HE PARKED ACTUALLY IN THE MIDDLE OF THE STREET AND LIKE MOTIONED TO HER, “COME ON OVER HERE.” AND SHE DID. SHE WENT OVER THERE. THIS WAS WITNESSED BY JEFFEREY KELLER AND IT’S I THINK INTERESTING BECAUSE WE KNOW THAT IT WOULD ALLOW THE DEFENDANT TO BE ABLE TO IDENTIFY WHO MR. GOLDMAN WAS. WE KNOW THAT HE HAD SEEN HIM PREVIOUSLY. ONCE AGAIN, AN INCIDENT OF STALKING AND HUMILIATION.

THE COURT: ALL RIGHT. MS. BODIN, WHY DON’T YOU TAKE A DEEP BREATH FOR A MOMENT. LET’S CHANGE COURT REPORTERS.

(BRIEF PAUSE.)

THE COURT: ALL RIGHT. MISS BODIN.

MS. BODIN: THANK YOU. THERE WERE A NUMBER OF STATEMENTS THAT THE VICTIM MADE WITH REGARD TO HER FEAR. IN FACT, SHE TOLD A NUMBER OF PEOPLE VERY CLOSE TO THE ACTUAL MURDERING INCIDENT ABOUT HER FEAR. SHE TOLD HER MOTHER THAT EVERYWHERE SHE WENT SHE SAW THE DEFENDANT. HE WAS AT THE PAYLESS SHOE STORE WHEN HE WENT THERE AND HE WAS FOLLOWING HER IN HER CAR. SHE TOLD BETSY ROCKETT, TWO WEEKS BEFORE THE ACTUAL KILLING OCCURRED, THAT HE WAS PEEPING — THAT THE DEFENDANT WAS PEEPING IN ON HER AND HE WAS STARTING TO WEAR DISGUISES. HE TOLD KRIS JENNER THAT SHE BELIEVED THAT HE WOULD KILL HER. NOW, MR. UELMEN HAS TALKED ABOUT THE INABILITY OF THE PEOPLE TO USE STATEMENTS OF FEAR. AND IF WE STOPPED AT THE ARGUMENT THAT MR. UELMEN MADE, THAT WOULD BE A CORRECT ARGUMENT, BUT MR. UELMEN DIDN’T MAKE THE COMPLETE ARGUMENT. THE ARGUMENT — THE GOOD ARGUMENT UNDER 1240, AND THAT IS THE ARGUMENT THAT STATEMENTS OF FEAR CAN COME IN WHEN YOU CAN SHOW CONDUCT IN CONFORMITY AND WE DO HAVE CONDUCT IN CONFORMITY PURSUANT TO 1240 TODAY. WE HAVE RECEIVED INFORMATION FROM SOJOURN SHELTER THAT ON THE DATE OF JUNE THE 7TH, 1994, NICOLE BROWN SIMPSON MADE A CONTACT WITH SOJOURN. SHE COMPLAINED THAT SHE WAS BEING STALKED. SHE WAS AFRAID, SHE FELT CONFUSED, SHE DIDN’T KNOW WHAT TO DO, AND SHE NAMED THE DEFENDANT AS THE PERSON WHO WAS STALKING HER. SHE ACTED IN CONFORMITY WITH HER FEAR. PEOPLE WHO ARE AFRAID MADE CALLS FOR HER. THEY GO TO ORGANIZATIONS LIKE SOJOURN, SHELTERS FOR BATTERED WOMEN. AND ORGANIZATIONS THAT EXIST FOR BATTERED WOMEN ARE THERE TO HELP THEM AND WOMEN GO TO THEM AND NICOLE BROWN SIMPSON WENT TO THAT PLACE BECAUSE SHE WAS AFRAID AND SHE HAD A REASON TO BE AFRAID. AND I THINK THAT ACT IS VERY SIGNIFICANT. IT IS SIGNIFICANT WHEN YOU LOOK AT IT IN THE LIGHT OF OTHER FACTS THAT OCCURRED IN THAT TIME PERIOD. WE KNOW THAT VERY CLOSE IN TIME, RIGHT AROUND THE MIDDLE OF MAY, THAT THE DEFENDANT GAVE THE VICTIM A BRACELET, A VERY EXPENSIVE BRACELET FOR HER BIRTHDAY, AND THE DEFENDANT TALKS THAT ABOUT THAT IN A STATEMENT TO THE LOS ANGELES POLICE DEPARTMENT, AND THE VICTIM GAVE IT BACK TO HIM AND TOLD HIM THAT SHE DIDN’T WANT TO SEE HIM AGAIN. YOU HAVE AN ACT OF ESTRANGEMENT HERE AND ACTS OF ESTRANGEMENT, OF DISTANCING, ARE VERY IMPORTANT, AND UNFORTUNATELY, VERY DANGEROUS FOR BATTERED WOMEN. THEY ARE DANGEROUS. WHAT HAPPENS IS IT ESCALATES THE VIOLENCE AND AN EXPERT CAN SPEAK TO THAT. THIS ACT OF ESTRANGEMENT, OF GIVING BACK THE BRACELET, THE FINISHING OF THE RELATIONSHIP, THE ENDING OF THE RELATIONSHIP THAT HAD GONE ON FOR 17 YEARS PROVIDES A MOTIVE IN THIS CASE WITHIN THE CONTEXT OF A DOMESTIC VIOLENCE, A MOTIVE TO KILL, THE FINAL ACT OF CONTROL. THERE IS ALSO EVIDENCE IN THIS CASE THAT NICOLE BROWN SIMPSON KEPT AN ACCOUNTING, AN AUDIT TRAIL OF ACTS OF VIOLENCE. WE — WE HAVE HAD THE ABILITY TO GO INTO THE SAFETY DEPOSIT BOX OF NICOLE BROWN SIMPSON. WHAT WE FOUND WHEN WE WENT IN THERE WAS THE LETTERS OF APOLOGY, NEWSPAPER ARTICLES RELATIVE TO THE 1989 INCIDENT WHEREIN THE DEFENDANT SUFFERED A CRIMINAL CONVICTION, FINALLY, FOR A VIOLATION OF PENAL CODE SECTION 273.5. THERE WERE PICTURES, PICTURES THAT WE HAVE AUTHENTICATED.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MS. BODIN: PICTURES THAT WE HAVE AUTHENTICATED THROUGH HER SISTER, NICOLE BROWN SIMPSON. THERE ARE THREE PICTURES. DENISE BROWN HAS AUTHENTICATED TWO OF THOSE PICTURES AS BEING PICTURES THAT SHE TOOK OF INCIDENTS WHERE THE DEFENDANT BEAT THE VICTIM. THOSE PICTURES DEPICT A FACIAL BEATING AND THEN A VERY LARGE BRUISE UNDERNEATH THE ARM OF NICOLE BROWN SIMPSON. SHE LITERALLY CREATED AN ACCOUNTING, AN AUDIT TRAIL OF ACTS OF VIOLENCE, BECAUSE SHE WANTED SOMEBODY TO REMEMBER WHAT WAS GOING ON IN HER LIFE, AND THAT IS THE ONLY WAY SOMETHING LIKE THAT COULD BE INTERPRETED. THERE WAS ALSO A WILL IN THAT SAFETY DEPOSIT BOX. THESE ACTS AND THESE EXPRESSIONS OF FEAR ARE EXTREMELY IMPORTANT, BECAUSE SHE DID ACT IN CONFORMITY PURSUANT TO EVIDENCE CODE SECTION 1240. THEY SHOW THAT SHE WAS AFRAID, AND THIS IS PARTICULARLY IMPORTANT TO A JURY WHO IS GOING TO — GOING TO HAVE TO MAKE SOME REASONABLE INFERENCES WITH REGARD TO HOW THIS KILLING OCCURRED. YOU HAVE TWO PEOPLE WHO HAVE BEEN KILLED HERE. WE HAVE TO SHOW PREMEDITATION, ABILITY TO COMMIT THE MURDER. A JURY COULD MAKE SOME REASONABLE INFERENCES, COULD AND SHOULD MAKE SOME INFERENCES WITH REGARD TO THE STATE OF MIND OF NICOLE BROWN SIMPSON. FOR EXAMPLE, YOU KNOW, WHY DID SHE GO OUTSIDE, WHAT TIME SHE GOES OUTSIDE, IF SHE WAS REALLY AFRAID, WHAT DID SHE DO?

THIS IS RELEVANT — THIS IS RELEVANT TO HER CONDUCT AND TO HER GOING TO A SHELTER. HER FEAR IS RELEVANT. IT DOESN’T GO —

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MS. BODIN: I MEANT 1250, I’M SORRY, YOUR HONOR, 1250 OF THE EVIDENCE CODE. I SAID 1240 SO MUCH TODAY THAT IT IS JUST COMING OUT OF MY MOUTH. AND I WOULD ALSO ASK THE COURT TO TAKE A LOOK AT THE COUPLE OF CASES WITH REGARD TO THE ISSUE OF — OF ENTERING STATEMENTS OF A VICTIM’S FEAR. THERE IS ONE CASE IN 1963, WHICH IS STILL GOOD LAW, WHERE THE STATEMENT OF THE VICTIM THAT THE DEFENDANT HAD TRIED TO KILL HER PREVIOUSLY WAS USED TO SHOW THAT SHE WOULD NOT HAVE GONE HOME IF SHE KNEW THAT SHE — IF SHE KNEW THAT THE PERPETRATOR WOULD BE THERE. AND THEN THERE IS THE OTHER CASE OF PEOPLE VERSUS PENN WHERE THE CONDUCT OF THE VICTIM AND HER EXPRESSIONS OF FEAR WERE RELEVANT TO HER LACK OF STRUGGLE IN A MURDER CASE. WE HAVE CITED THOSE CASES IN OUR BRIEF.

THE COURT: HOW DO YOU TIE THAT INTO THE FACTS OF THIS CASE, THE RELEVANCE OF THE STATE OF MIND OF THE VICTIM?

MS. BODIN: OKAY. WE HAVE GOTTEN EVIDENCE TODAY FROM A SHELTER SHOWING THAT NICOLE BROWN SIMPSON WENT THERE. RIGHT AROUND THE TIME THAT SHE —

MR. COCHRAN: OBJECTION. SHE IS WRONG ABOUT THOSE FACTS. THAT DOESN’T SHOW THAT, YOUR HONOR. THAT IS NOT WHAT IT SAYS.

MS. BODIN: SHE CONTACTED THEM. IS THAT FAIR?

MR. COCHRAN: THAT’S FAIR.

MS. BODIN: SHE CONTACTED A SHELTER AND THOSE STATEMENTS OF FEAR THAT SHE IS MAKING RIGHT AROUND THAT TIME PERIOD, AROUND THE KILLING WHEN SHE IS GOING TO THE SHELTER, THIS IS A VERY TIGHT TIME NEXUS, SHE IS MAKING STATEMENTS OF FEAR TO PEOPLE ABOUT TWO WEEKS —

THE COURT: FIVE DAYS.

MS. BODIN: BUT THE STATEMENTS OF FEAR ACTUALLY WERE TWO WEEKS BEFORE THE MURDER. THE CONTACT WITH THE SHELTER WAS FIVE DAYS BEFORE. THOSE STATEMENTS OF FEAR ARE RELATIVE TO HER CONDUCT AND HER FEAR AND THAT SHE HAD REASON TO BE AFRAID. IN ANY CASE, THOSE ACTS, THOSE ACTS OF GOING TO A SHELTER ARE SOMETHING THAT SHOULD COME IN. THEY SHOULD JUST COME IN, THAT SHE MADE THIS CONTACT, ACTS THAT STAND ALONE WITHOUT REGARD TO ANY STATEMENT, BECAUSE THEY ARE RELEVANT TO HER FEAR.

THE DEFENDANT ALSO MADE A STATEMENT TO JUDITHA BROWN SAYING THAT, “THE ONLY WOMAN THAT I WANT IN MY LIFE IS YOUR DAUGHTER AND IF I CAN’T HAVE HER,” UMM — “AND I CAN’T HAVE HER.” AND IT SHOWS A DESIRE TO CONTROL. HE WANTS HER. AND ALTHOUGH IT IS A STATEMENT JUST STANDING LOAN, IT IS A SIGNIFICANT STATEMENT BECAUSE IT SHOWS HIS MOTIVE, HIS DESIRE TO CONTROL HER AND THAT IS WHAT DOMESTIC VIOLENCE IS ABOUT, MOTIVE TO CONTROL. THERE IS A COMMENT THAT THE DEFENDANT MADE TO BILL THIBODEAU WITH REGARD TO THE SECRET WAY, THE SECRET WAY INTO THE LOCATION OF WHERE THE CRIME OCCURRED. THAT GOES TO OPPORTUNITY AND KNOWLEDGE, WHICH IS NOT AN ARGUMENT THAT WE HAVE PREVIOUSLY MADE IN OUR BRIEF, BUT IT DOES GO TO OPPORTUNITY AND KNOWLEDGE AND ABILITY TO COMMIT THE CRIME, AND IT IS SIGNIFICANT. HE ALSO HEARD A STATEMENT FROM THE DEFENDANT SAYING THAT NICOLE BROWN SIMPSON WAS RIPPING HIM UP AND THAT SHE WASN’T WORTH THE TROUBLE, INDICATING, I WOULD THINK, ALMOST A WILLINGNESS TO DISREGARD HER, SHE WASN’T WORTH THE TROUBLE, RIPPING ME UP, GET RID OF HER, SHE WASN’T WORTH THE TROUBLE. THE ACTS OF ABUSE THAT I HAVE DESCRIBED TO THE COURT SHOW A LONG AND CONSISTENT PATTERN OF DOMESTIC VIOLENCE. ONE OF THOSE INCIDENTS STANDING ALONE PROBABLY WOULDN’T BE ALL THAT SIGNIFICANT. SOME OF THEM OF COURSE ARE VERY SIGNIFICANT, CERTAINLY WHEN POLICE ARE CALLED TO A HOME AND THERE HAS BEEN A BEAT UP IS VERY SIGNIFICANT, BUT STATEMENTS IS ISOLATED INCIDENTS, SEEMINGLY ISOLATED INCIDENTS TAKEN ALONE. MR. UELMEN HAS MADE — MADE THE POINT THAT, WELL, HOW DOES THAT RELATE TO A 1994 MURDER CASE? TAKEN ALONE THEY DON’T. TOGETHER WHAT THEY SHOW IS A COMPELLING PATTERN OF VIOLENCE. THEY SHOW THAT NICOLE BROWN SIMPSON WAS IN DANGER 17 YEARS AGO AND THAT PATTERN OF DANGER AND THAT PATTERN OF VIOLENCE ULTIMATELY RESULTED IN HER KILLING. WE WOULD ASK THE COURT TO ADMIT THE ACTS OF VIOLENCE THAT WE HAVE TALKED ABOUT IN OUR BRIEF. IF THE COURT WISHED TO QUESTION ME ABOUT SPECIFIC ACTS, I WOULD BE MORE THAN WILLING TO TALK ABOUT THAT AT THIS POINT.

THE COURT: ALL RIGHT. COUNSEL, WHAT I WOULD LIKE TO DO AT THIS POINT IS TAKE OUR RECESS FOR THE DAY. I WOULD LIKE FOR YOU TO PREPARE FOR THE COURT AND OPPOSING COUNSEL A LIST OF THE SPECIFIC ACTS OF VIOLENCE THAT YOU ARE SEEKING TO ADMIT WITH A BRIEF STATEMENT OF THE LEGAL BASIS THAT YOU FEEL COMPELS THE COURT TO ADMIT THEM, AND I WANT YOU TO PAY PARTICULAR ATTENTION TO HOW THE VICTIM’S STATE OF MIND AND HER STATEMENTS ARE RELEVANT TO ANY OF THE ISSUES THAT ARE BEFORE THE COURT IN THIS CASE, BECAUSE THAT IS AN ISSUE THAT IS NOT CLEAR IN MY MIND AT THIS POINT.

MS. BODIN: ALL RIGHT.

THE COURT: ALL RIGHT. I TAKE IT THAT I’M STILL GOING TO HEAR FROM MR. GOLDBERG.

MR. GOLDBERG: YES, YOUR HONOR.

THE COURT: THEN FROM YOU AGAIN MR. GORDON?

MR. GORDON: YES, YOUR HONOR.

THE COURT: PERHAPS TESTIMONY?

MR. GORDON: YES, YOUR HONOR.

THE COURT: AND REBUTTAL?

MR. UELMEN: YES.

THE COURT: ALL RIGHT. WE HAVE A FULL DAY TOMORROW.

MR. GORDON: THANK YOU FOR YOUR TIME, SIR.

THE COURT: ALL RIGHT. MR. DARDEN, YOU HAD A COMMENT YOU WANTED TO MAKE?

MR. DARDEN: I DON’T KNOW WHICH EVIDENCE ITEM WE ARE ON AT THIS POINT, BUT I DO HAVE A BINDER HERE. IT CONTAINS MANY OF THE ORIGINAL DOCUMENTS THAT WE HAVE BEEN ALLUDING TO HERE TODAY, AND I’M NOT IN THE POSITION TO TAKE THESE BACK TO THE EVIDENCE LOCKER. AND SO THAT I DON’T SOMEHOW GET CAUGHT UP IN A CHAIN OF CUSTODY, I WOULD LIKE TO MARK THESE AND DELIVER THESE ORIGINAL DOCUMENTS TO THE CLERK, IF I MAY, YOUR HONOR.

THE COURT: WHY DON’T WE DO THIS THEN: FOR THE PURPOSES OF CONTINUING THE HEARING IN AN ORDERLY MANNER, I WILL DIRECT THE CONTENTS OF THAT ENTIRE NOTEBOOK TO BE MARKED AS COURT’S EXHIBIT NEXT IN ORDER FOR THIS HEARING ONLY.

MR. DARDEN: PEOPLE’S 8?

THE COURT: COURT’S EXHIBIT.

THE CLERK: COURT’S EXHIBIT 1.

(COURT’S 1 FOR ID = NOTEBOOK)

THE COURT: THIS IS JUST FOR THE PURPOSE OF THE CLERK TAKING POSSESSION OF THE NOTEBOOK THIS EVENING. WE WILL RETURN IT TO YOU TOMORROW MORNING.

MR. DARDEN: ADDITIONALLY, YOUR HONOR, I WOULD LIKE TO INDICATE TO THE COURT AND COUNSEL, AND PUT THEM ON NOTICE, THAT WE HAVE RECEIVED EVIDENCE OF ANOTHER VERY, VERY SIGNIFICANT INCIDENT AND SO WE WILL BE MOVING, WITH LEAVE OF COURT, TO AMEND OUR PAPERS TOMORROW AFTERNOON ALLEGING ANOTHER INCIDENT, IF NOT TWO ADDITIONAL INCIDENTS, DOMESTIC VIOLENCE.

THE COURT: ALL RIGHT. THANK YOU, COUNSEL. WE WILL STAND IN RECESS UNTIL NINE O’CLOCK.

(AT 4:45 P.M. AN ADJOURNMENT WAS TAKEN UNTIL, THURSDAY, JANUARY 12, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE

THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
PLAINTIFF, )
)
) VS. ) NO. BA097211
)
ORENTHAL JAMES SIMPSON, )
)
)
DEFENDANT. )
REPORTER’S TRANSCRIPT OF PROCEEDINGS
WEDNESDAY, JANUARY 11, 1995
VOLUME 68
PAGES 10515 THROUGH 10698, INCLUSIVE
APPEARANCES: (SEE PAGE 2)
JANET M. MOXHAM, CSR #4588
CHRISTINE M. OLSON, CSR #2378 OFFICIAL REPORTERS
APPEARANCES:
FOR THE PEOPLE: GIL GARCETTI, DISTRICT ATTORNEY
BY: MARCIA R. CLARK, WILLIAM W.
HODGMAN, CHRISTOPHER A. DARDEN,
CHERI A. LEWIS, ROCKNE P. HARMON,
GEORGE W. CLARKE, SCOTT M. GORDON
LYDIA BODIN AND HANK GOLDBERG,
DEPUTIES
18-000 CRIMINAL COURTS BUILDING
210 WEST TEMPLE STREET
LOS ANGELES, CALIFORNIA 90012
FOR THE DEFENDANT: ROBERT L. SHAPIRO, ESQUIRE
SARA L. CAPLAN, ESQUIRE
2121 AVENUE OF THE STARS
19TH FLOOR
LOS ANGELES, CALIFORNIA 90067
JOHNNIE L. COCHRAN, JR., ESQUIRE
BY: CARL E. DOUGLAS, ESQUIRE
SHAWN SNIDER CHAPMAN, ESQUIRE
4929 WILSHIRE BOULEVARD
SUITE 1010
LOS ANGELES, CALIFORNIA 90010
GERALD F. UELMEN, ESQUIRE
ROBERT KARDASHIAN, ESQUIRE
ALAN DERSHOWITZ, ESQUIRE
F. LEE BAILEY, ESQUIRE
BARRY SCHECK, ESQUIRE
ROBERT D. BLASIER, ESQUIRE
I N D E X
INDEX FOR VOLUME 68 PAGES 10515 – 10698
—————————————————–
DAY DATE SESSION PAGE VOL.
WEDNESDAY JANUARY 11, 1995 A.M. 10515 68 P.M. 10596 68
—————————————————–
PROCEEDINGS
SOJOURN MOTION 10515 68
MOTION IN LIMINE – 1101(B) 10545 68
EXHIBITS
PEOPLE’S FOR IN
EXHIBIT IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.
1 – PHOTOGRAPH OF 10667 68
NICOLE BROWN SIMPSON
2 – PHOTOGRAPH OF 10667 68
NICOLE BROWN SIMPSON
3 – PHOTOGRAPH OF 10667 68
NICOLE BROWN SIMPSON
5 – PRENUPTIAL AGREEMENT 10674 68
6 – TRANSCRIPT OF 1989 10674 68
TAPE
7 – TRANSCRIPT OF 911 10684 68
TAPE
—————————————————–
COURT’S FOR IN
EXHIBIT IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.
1 – NOTEBOOK 10698 68

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