Attorneys for Defendant
ORENTHAL JAMES SIMPSON
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PEOPLE OF THE STATE OF CALIFORNIA,
ORENTHAL JAMES SIMPSON, aka O.J. SIMPSON
CASE NO. BA 097211
DEFENDANT'S MEMORANDUM OF LAW RE POLICE INTERVIEW
TO THE HONORABLE LANCE A. ITO, JUDGE OF THE SUPERIOR COURT OF LOS ANGELES COUNTY, AND TO THE DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES:
Defendant ORENTHAL JAMES SIMPSON, by and through his counsel of record, respectfully submits the following Memorandum of Points and Authorities in support re police interview.
MEMORANDUM OF POINTS AND AUTHORITIES
In the direct examination of Colin Yamauchi, Mr. Harmon, over defense objection, elicited the following testimony:
"Like I was saying, I heard on the news, well, yeah, he's got an air-tight alibi. He's in Chicago and, you know, that and it's his ex-wife and this and that, and I go, oh, well, he's probably not related to the scene."
The defense contends that the representation of this detached declaration permits the admission of those portions of the defendant's statement to police on the same subject of his alibi which are necessary to make the detached declaration understood, pursuant to California Evidence Code Section 356, which provides:
"Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation or writing is necessary to make it understood may also be given in evidence." (Emphasis supplied.)
Two things become immediately apparent from the statutory language. First, the testimony that "opens the door" need not be an actual part of the act, declaration, conversation or writing that is offered to make it understood. Second, the "writing" offered to make it understood can include a tape- recorded statement, California Evidence Code Section 250.
Thus, it makes no difference whether Colin Yamauchi was referring to news reports or to the actual statement of the defendant. The fact remains that an "airtight alibi" is attributed to the defendant:
"He's got an airtight alibi."
The impact upon the jury of leaving this testimony unexplained is readily apparent. they are left to speculate why the alleged "airtight alibi" has not been explained. Is it because it was false? Is it because the defense got it suppressed? The correct answer, of course, is it's because the prosecution made a tactical decision to keep it from the jury. The whole purpose of Section 356 is to say to the prosecution, "you can't have it both ways. You can't keep the defendant's exculpatory statement from the jury, and still offer to the jury a detached and misleading summary of the statement in the form, 'he's got an airtight alibi.'"
In any event, the source of the media speculation that Mr. Yamauchi would have heard was clearly the defendant's statement. It was widely reported that Attorney Howard Weitzman accompanied Mr. Simpson to Parker Center after his return from Chicago, and Mr. Weitzman issued a statement that Mr. Simpson was fully cooperating in his investigation. The operative impact of Section 356 is not dependent upon the identification of the source to which the witness attributes the detached act, declaration, conversation, or writing. It was presented as a claim by the defendant, so any other writing necessary to make that claim understood may now be given in evidence.
The purpose of Section 356 is to preserve fair play when misleading impressions are created. The misleading impression created by "He's got an airtight alibi," without any further explanation, will be extremely damaging to the defendant, because the jury will not show that the defendant never claimed that he was in Chicago at the time the murders were committed, and that his denial is completely consistent with the testimony already elicited from numerous prosecution witnesses regarding his activities in the evening in question.
A helpful illustration of the rule's application appears in Rosenberg v. Wittenborn, 178 Cal.App.2d 846 (1960). A police officer testified that the defendant told him he had the red light at the time the accident occurred. The defendant was then permitted to elicit Mr. Simpson to Parker Center after his return from Chicago, and Mr. Weitzman issued a statement that Mr. Simpson was fully cooperating at the investigation. The operative impact of Section 356 is not dependent upon the identification of the source to which the witness attributes the detached act, declaration, conversation or writing. It was presented as a claim by the defendant, so any other writing necessary to make the claim understood may now be given in evidence.
The purpose of Section 356 is to preserve fair play when misleading impressions are created. The misleading impression created by "He's got an airtight alibi," without any further explanation, will be extremely damaging to the defendant, because the jury will not know that the defendant never claimed that he was in Chicago at the time the murders were committed, and that his denial is completely consistent with the testimony already elicited from numerous prosecution witnesses regarding his activities on the night in question.
A helpful illustration of the rule's application appears in Rosenberg v. Wittleborn, 178 Cal.App.2d 846 (1960). A police officer testified that the defendant told him he had the red light at the time an accident occurred. The defendant was then permitted to elicit the full explanation on cross-examination, which gave "a very different complexion."
"Plaintiff's attorney was trying to leave the jury with the impression that defendant by way of admission had told the officer...that he entered the intersection against the red light, -- that he said this and no more. These statements were in fact so qualified when made to the officer that they carried no implication (such as plaintiffs would have the jury draw) that defendant ran the red light because he was going too fast to stop within the distance he had available.
conversation placed in evidence by plaintiffs be supplemented by the qualifying and enlightening portions of conversation which gave a very different complexion than that which plaintiff's segregated passages bore." 178 Cal.App.2d at 851-52.
Here, to paraphrase Rosenberg v. Wittenborn, the defendant's statements to the police were so qualified that they carried no implication of an "airtight alibi," that the prosecution wants the jury to believe was contrived. Considerations of fair play demand that the relevant portions of the statement be admitted which will qualify and enlighten the true nature of the defendant's explanation, which will present "a very different complexion" than that conveyed by the testimony, "he's got an airtight alibi."
The damage in the unexplained attribution of an "airtight alibi" to the defendant by Colin Yamauchi is heightened by the jury's awareness through Mr. Yamauchi's previous testimony that he had been "briefed" by Dennis Fung with information from the homicide detective's investigation. Some of this information, such as the fact the defendant had a cut on the middle finger of his left hand, could only have come from the examination of Mr. Simpson by Detectives at Parker Center. Thus, his prior information about the case was not limited to news accounts.
Obviously, only the portions of the defendant's taped statement relating to an alibi may be relevant but in applying the limitation of relevance, two things are made clear by the opinion of the Court in People v. Hamilton, 48 Cal.3d 1142, 1174 (1989): relevance must be placed in the context of all of the testimony leading up to the statement "he's got an airtight alibi," and the court should not draw "narrow lines" around the exact subject of inquiry.
In Hamilton, a prosecution witness have a tape recorded statement claiming the defendant told her he wanted his wife killed. On cross-examination, the defense showed inconsistencies between the tape and a transcript of the tape regarding the planning of the crime. Without objection, the prosecution then had the entire tape played, revealing additional statement's about the defendant's motive. The Court upheld the admission of the entire tape under Evidence Code Section 356:
"In the questioning leading up to the playing of the taped confession, defense counsel asked what defendant had told the witness prior to the murder concerning the details of the planned crime. Defendant's conversations with Carolyn, however, encompassed motive as well as plan, and counsel's questions draw no clear distinction between the two subjects. In applying Evidence Code Section 356, the court do not draw narrow lines around the exact subject of inquiry. 'In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have played in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration, in evidence...' " 48 Cal.3d. at 1174
The test of relevancy presents more complexity in the context of two different statements, if the first statement that "opens the door" is independent and comprehensible. That was the rationale offered in People v. Barrick, 33 Cal. 3d 115, 131-32 (1982) for excluding a distinct and separate post-arrest interrogation after the prosecution elicited in pre-arrest statement: "The post-arrest statement would also be admissible if necessary to understand the earlier prearrest statement, but in the present case the earlier statement is independently comprehensible." 33 Cal.3d at 131, n.4. Here, of course, the statement "he's got an airtight alibi" is hardly "independently comprehensible." It raises a host of questions that can only be answered in the full context of the defendant's statement explaining his movements on the night of the homicide.
As a leading commentator on California Evidence noted in explaining the operation of Section 356, "Whenever matters are taken out of context, misleading impressions can be created." Mendez, California Evidence Section 13.10, p.244 (1993) Section 356 exists "to diminish the risk." That is all the defendant seeks to do. Considerations of fair play fully justify the admission of the relevant portions of the defendant's recorded statement which are necessary to make Mr. Yamauchi's detached declaration, "he's got an airtight alibi," understood by the jury.
DATED: May 25, 1995
Respectfully submitted, LAW OFFICES OF JOHNNIE L. COCHRAN, JR.
By: /s/ Johnnie L. Cochran, Jr.
/s/ Carl E. Douglas
/s/ Shawn S. Chapman
/s/ Gerald F. Uleman