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