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, OUT OF THE PRESENCE OF THE JURY:)

THE COURT: ALL RIGHT. GOOD MORNING, COUNSEL.

MR. HODGMAN: GOOD MORNING, YOUR HONOR. YOUR HONOR --

THE COURT: HOLD ON.

MR. HODGMAN: EXCUSE ME.

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 ARE REPRESENTED BY MR. HODGMAN, MR. GORDON, MISS BODIN AND MR. GOLDBERG. MR. HODGMAN.

MR. HODGMAN: YES. THANK YOU, YOUR HONOR. MAY COUNSEL AND I APPROACH JUST FOR A MOMENT WITH REGARD -- IT IS NOT IN RELATION TO THIS MOTION.

THE COURT: CERTAINLY.

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

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: ALL RIGHT. THANK YOU, COUNSEL.

MR. HODGMAN: THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. MISS BODIN, DO YOU WISH TO CONTINUE YOUR REMARKS?

MS. BODIN: YES, YOUR HONOR. THANK YOU. GOOD MORNING, YOUR HONOR. YOUR HONOR, WE HAVE GIVEN THE COURT A CHART BECAUSE THE COURT HAD AT THE LAST MOMENT IN COURT YESTERDAY ASKED US TO SPECIFICALLY TALK ABOUT SPECIFIC ACTS, AND I HAVE AN EXTRA IF THE COURT NEEDS IT.

THE COURT: I THINK I LEFT IT ON --

MS. BODIN: YOUR HONOR, WE HAVE ANOTHER ONE. MR. GORDON WILL BRING IT TO YOU.

(BRIEF PAUSE.)

THE COURT: THANK YOU. ALL RIGHT. MISS BODIN.

MS. BODIN: WHAT THIS CHART DOES, AND THE DEFENSE IS ALSO IN POSSESSION OF IT, IDENTIFIES TO THE COURT THOSE INCIDENTS WHICH WE BELIEVE ARE PROVABLE THAT THE COURT SHOULD SPECIFICALLY RULE ON IN THIS HEARING. HOWEVER, THERE ALREADY OTHER INCIDENTS THAT APPEAR ON THIS CHART AND YOU WILL SEE THAT THEY ARE LINED OUT. WE CONTINUE TO INVESTIGATE THOSE, AND I WILL SAY THIS AGAIN, WE ARE GOING TO INVESTIGATE THEM, WE ARE INVESTIGATING THEM. IF WE GET INFORMATION ON THEM, WE WOULD SEEK AT A LATER TIME TO PRESENT EVIDENCE ON THOSE INCIDENTS. FURTHERMORE, WE ARE GIVING OUR EXPERT THOSE -- THOSE INCIDENTS TO LOOK IT IN TERMS OF FORMING AN EXPERT OPINION. ADDITIONALLY, WE WOULD PROBABLY AND WE WILL, WE WILL SEEK TO CROSS WITNESSES WHEN IT IS APPROPRIATE WITH REGARD TO THOSE INCIDENTS WITH THAT IN MIND. AND HAVING SAID THAT, WE HAVE LINED OUT SOME OF THE -- THE INCIDENTS THAT WE HAD DISCUSSED YESTERDAY AND WE USED THE COURT'S NUMBERING SCHEME FROM THE CHART THAT THE COURT HAD GRACIOUSLY GIVEN US SEVERAL DAYS AGO. I DON'T KNOW IF THE COURT WISHES ME TO ONCE AGAIN DISCREETLY AND QUICKLY DISCUSS EACH ONE OF THOSE INCIDENTS. I CAN DO THAT OR I CAN CONTINUE WITH AN ARGUMENT. HOW WOULD YOU LIKE ME TO PROCEED, YOUR HONOR?

MR. COCHRAN: MAY I MAKE A SUGGESTION, YOUR HONOR?

THE COURT: CERTAINLY.

MR. COCHRAN: BECAUSE OF THE WIDE CIRCULATION OF WHAT THE PROSECUTION DID YESTERDAY IN LAYING OUT ALL THIS LAUNDRY LIST OF ALLEGATIONS, I THINK IT IS ONLY FAIR THAT THEY STATE FOR THE RECORD THE ONES THAT THEY ARE NOT GOING TO PROCEED ON, AND I WOULD ASK THAT, SPECIFICALLY LIKE REYNOZA.

THE COURT: ALL RIGHT. I'M JUST HAVING MY CLERK MAKE ME AN EXTRA COPY SO I CAN WRITE ON ONE AND KEEP ONE FOR THE RECORD, BECAUSE ESSENTIALLY, MISS BODIN, WHAT YOU ARE INDICATING TO THE COURT IS THAT THE ITEMS THAT YOU HAVE LINED OUT ON YOUR CHART ARE THE ONES THAT YOU DO NOT AT THIS TIME PROPOSE TO PRESENT, CORRECT?

MS. BODIN: THAT'S CORRECT.

THE COURT: ALL RIGHT. SO FOR THE PURPOSES OF THE RECORD THEN, I'M GOING TO INCLUDE A COPY OF YOUR CHART IN THE COURT'S RULING AS AN APPENDIX.

MS. BODIN: THANK YOU, YOUR HONOR.

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

THE COURT: IT WILL BE BECOME PART OF THE OFFICIAL COURT RECORD.

(BRIEF PAUSE.)

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

MS. BODIN: FINALLY, YOUR HONOR, BEFORE I START GOING THROUGH THE INCIDENTS, THE COURT SHOULD KNOW THAT BY CROSSING THESE OUT WE ARE NOT COMMENTING ON THE TRUTH OF THESE WITNESSES OR THE UNTRUTH OF THEM OR THE CREDIBILITY OF ANY OF THE WITNESSES. WE ARE JUST SIMPLY SAYING AT THIS POINT THE COURT NEEDS TO MAKE A RULING AND THESE ARE THE RULINGS THAT WE ARE REQUESTING ON SPECIFIC INCIDENTS, BUT WE ARE NOT LIMITING OURSELVES WITH REGARD TO ANY FUTURE RULINGS THE COURT WOULD MAKE.

THE COURT: ALL RIGHT.

MS. BODIN: HAVING SAID THAT, USING THE CHART, GOING TO JUDGE'S INCIDENT NO. 3, THAT WOULD BE THE INCIDENT WHEN MRS. SIMPSON WENT TO THE HOME OF WAYNE HUGHES IN THE MIDDLE OF THE NIGHT AND SHOWED HIM A RED SPOT ON HER, AND WE -- EXCUSE ME. I'VE GOT A TERRIBLE COLD THE LAST COUPLE DAYS. I APOLOGIZE.

WE BELIEVE THAT THIS IS TANTAMOUNT TO AN EXCITED UTTERANCE. THERE IS PHYSICAL EVIDENCE AND THIS IS FROM AN EYEWITNESS WHO SAW HER WITH THIS RED SPOT. SHE HAD ASKED HIM TO PLEASE TALK TO THE DEFENDANT IN THIS CASE. IT IS AN EXAMPLE OF PHYSICAL VIOLENCE PER THE ZACK CASE. MOVING DOWN NOW TO JUDGE'S INCIDENT NO. 7, THAT IS THE LA CANTINA INCIDENT, THAT OCCURRED --

MR. COCHRAN: YOUR HONOR, I'M NOT CLEAR. I THOUGHT SHE WAS GOING TO INDICATE THE ONES SHE WAS NOT GOING TO GO ON.

MS. BODIN: I'M SORRY.

MR. COCHRAN: SHE SKIPPED TO 3.

THE COURT: WHY DON'T WE TAKE IT FROM THE TOP.

MS. BODIN: INCIDENT NO. 1 WE ARE CROSSING OUT. THAT WOULD BE A JOURNAL ENTRY WITH REGARD TO AN INCIDENT HAPPENING IN SAN FRANCISCO WHEREIN THE DEFENDANT HIT THE VICTIM AND THREW HER CLOTHES DOWN ON THE FLOOR. NO. 2, A NEW YORK INCIDENT WHERE THE DEFENDANT HIT THE VICTIM IN PUBLIC WHERE SHE HAD TO ASK HELP FROM PASSERBYS -- PASSERBYS. NO. 3 I HAVE JUST TALKED ABOUT, THAT WOULD BE THE WAYNE HUGHES RED SPOT INCIDENT. NO. 4 WOULD BE THE INCIDENT IN THE WINE CLOSET, WHERE SHE WAS LOCKED IN THE WINE CLOSET AND WAS PHYSICALLY ASSAULTED BY THE DEFENDANT.

THE COURT: YOU ARE WITHDRAWING THAT?

MS. BODIN: WE ARE, YES. NO. 5 JOURNAL ENTRY WE ARE WITHDRAWING WITH REGARD TO SAN JOSE TRACK INCIDENT AND THAT WAS WHERE SHE WAS HIT AND LEFT ON THE ROADSIDE BY THE DEFENDANT. NO. 6 WE ARE WITHDRAWING. THAT IS THE INCIDENT WHERE SHE WROTE A NOTE TO HERSELF AND THE DEFENDANT FOUND THE NOTE AND THEN HIT HER. NO. 7 WE ARE KEEPING.

MR. COCHRAN: YOUR HONOR, I MUST OBJECT. COUNSEL -- WE ARE IN COURT TO DETERMINE IT APPROPRIATE. IT SEEMS TO ME SHE OUGHT TO SAY "ALLEGED" INCIDENT. SHE DOESN'T KNOW WHETHER THAT HAPPENED OR NOT.

MR. SHAPIRO: THEY ARE WITHDRAWING IT AT THIS TIME, YOUR HONOR?

THE COURT: I JUST NEED TO NOW WHICH ONE OF THESE INCIDENTS YOU ARE WITHDRAWING. IF YOU ARE TELLING ME YOU ARE WITHDRAWING THE SAN JOSE TRACK INCIDENT, I KNOW WHICH ONE YOU ARE TALKING ABOUT.

MS. BODIN: THANK YOU, YOUR HONOR.

THE COURT: NO. 6 IS A JOURNAL ENTRY YOU ARE WITHDRAWING.

MS. BODIN: YES. NO. 7. THE PEOPLE KNOW THAT WE CAN PROVE THIS. IT IS IMPORTANT BECAUSE IT SHOWS THAT THE DEFENDANT WAS PHYSICALLY VIOLENT AND IT IS EVIDENCE OF EMOTIONAL ABUSE, PHYSICAL ABUSE AND PROPERTY ABUSE. NO. 8, SMASHING OF PICTURES AT ROCKINGHAM, SHOWS PROPERTY DESTRUCTION. THERE ARE EYEWITNESSES TO THIS INCIDENT. NO. 9, THE INCIDENT WHERE THE DEFENDANT TOOK A BASEBALL BAT TO A WHITE MERCEDES BELONGING TO THE VICTIM, THERE ARE EYEWITNESSES, THERE ARE TWO OF THEM TO THIS. THE DEFENDANT MADE ADMISSIONS AND THERE WERE EXCITED UTTERANCES GIVEN BY NICOLE BROWN SIMPSON WITH REGARD TO THIS INCIDENT. THE BICYCLE INCIDENT INVOLVING DR. ALPERT, THAT WILL BE NO. 10 NOW AT THIS POINT ON THE LIST, WE BELIEVE THAT THAT IS EVIDENCE OF PHYSICAL VIOLENCE PER PEOPLE VERSUS ZACK AND THERE ARE EYEWITNESSES TO THAT WITH REGARD TO THE INJURIES AND ALSO THERE ARE MEDICAL RECORDS. NO. 11 IN THE COURT'S CHART, THIS WAS -- THIS WAS THE INCIDENT IN HAWAII WHERE THE DEFENDANT BECAME ENRAGED BECAUSE A GAY MAN KISSED HIS CHILD. WE BELIEVE THAT PER ZACK AND DANIELS IT IS AN EXAMPLE OF HUMILIATION AND THAT HE WAS ABUSIVE TO THE VICTIM AND MISTREATED HIS FAMILY. THERE WAS ALSO AN EYEWITNESS. THERE IS THE DISNEY ON ICE, NO. 12, WHEREIN THE DEFENDANT CALLED HER A FAT SLOB AND DENIGRATED HER WHEN SHE WAS PREGNANT. WE HAVE A WITNESS TO THAT, AL COWLINGS, AND IT IS EVIDENCE OF PHYSICAL VIOLENCE PER ZACK AND EMOTIONAL ABUSE PER DE MOSS AND THERE ARE EYEWITNESSES TO THIS.

THE COURT: I THINK THE COURT REPORTER WANTS YOU TO SLOW DOWN.

MS. BODIN: THANK YOU, YOUR HONOR, AND I WILL. JUDGE'S INCIDENT NO. 13, 1989, NEW YEAR'S DAY. THIS OF COURSE IS VERY WELL DOCUMENTED. THERE ARE 1240 STATEMENTS. THERE ARE EYEWITNESSES. THERE ARE LETTERS WHERE THE DEFENDANT ADOPTS THE -- ADOPTS THE INCIDENT, NUMEROUS PIECES OF EVIDENCE. THE PEOPLE WOULD BE CROSSING OUT ON JUDGE'S NO. 14 ALSO RELATING TO THE 1989 NEW YEAR'S DAY INCIDENT. THE COURT HAD LISTED AS SEPARATE AS TO INCIDENT NO. 15, THE PRENUPTIAL LETTER. THE PEOPLE WOULD BE SEEKING TO ADMIT THAT AS A DOCUMENT THAT ADMITS THE INCIDENTS THAT OCCURRED ON NEW YEAR'S DAY OF 1989. STATEMENT TO KRIS JENNER WE CONSIDER A 1250 STATEMENT OF FEAR. IF THE COURT WOULDN'T MIND, THE COURT HAD SPECIFICALLY ASKED ME AT THE END OF YESTERDAY TO ADDRESS THE 1250 ISSUE AND AT THE END OF GOING THROUGH THIS CHART I'M GOING TO ARGUE THAT. JUDGE'S INCIDENT NO. 17, THAT WAS THE INCIDENT INVOLVING ALFRED ACOSTA, THE LIMOUSINE DRIVER. IT IS DEMONSTRATIVE OF PHYSICAL VIOLENCE AND THERE IS AN EYEWITNESS TO IT. JUDGE'S INCIDENT NO. 18, THAT IS THE INCIDENT THAT OCCURRED AT THE RED ONION, AND I MADE A MISTAKE YESTERDAY IN MY RELATION OF THE FACTS AND I WOULD LIKE TO CORRECT IT ON THE RECORD. I STATED THAT IT WAS THE MALIBU RED ONION AND IN FACT IT WAS THE SANTA ANA RED ONION. I WOULDN'T WANT THE WRONG RED ONION TO GET CREDIT FOR THIS SO I WANT TO MAKE SURE THE LOCATION IS CORRECT. NO. 19, STATEMENT BY D'ANNE LE BON, WE ARE CROSSING THAT OUT. STATEMENT OF THE VICTIM, I'M SORRY, TO D'ANNE LE BON, NO. 19, WE ARE CROSSING THAT OUT. NO. 20, THE INCIDENT WHERE THE DEFENDANT STATED HE CUT SOMEBODY'S HEAD OFF WITH REGARD TO SOMEONE ELSE DRIVING HIS WIFE'S CAR --

THE COURT: WITH REGARDS TO THAT ONE INCIDENT, I THINK IT IS IMPORTANT TO MAKE CLEAR THAT YOU ARE WITHDRAWING THAT ONE PARTICULAR INCIDENT, BECAUSE THE NEWS MEDIA WAS ABLAZE LAST NIGHT WITH THIS PARTICULAR INCIDENT AND I THINK IT SHOULD BE CLEAR ON THE RECORD THAT THE PROSECUTION WITHDRAWS THIS PARTICULAR INCIDENT.

MS. BODIN: YES, YOUR HONOR.

MR. SHAPIRO: YOUR HONOR, WOULD IT BE PROPER FOR THE COURT TO ASK THE DISTRICT ATTORNEY WHY THEY ARE WITHDRAWING THIS AT THIS TIME?

MR. COCHRAN: FURTHER, COULD THE COURT ALSO MAKE SURE THEY MENTION THE NAME OF THE ALLEGED WITNESS IN THIS INCIDENT ALSO.

THE COURT: I THINK SHE JUST DID.

MR. COCHRAN: I DIDN'T HEAR IT.

THE COURT: SHE SAID THE REYNOZA INCIDENT, AS I RECALL, BUT LET'S SEE -- BUT IN ANY EVENT, THIS IS THE EDDIE REYNOZA INCIDENT, THE ALLEGED STATEMENTS MADE.

MS. BODIN: WELL, YOUR HONOR -- I'M SORRY.

THE COURT: BUT IT IS CLEAR THAT THE PROSECUTION INTENDS TO WITHDRAW THIS INCIDENT, CORRECT?

MS. BODIN: THAT'S CORRECT.

THE COURT: ALL RIGHT.

MS. BODIN: DOES THE COURT WISH ME TO MAKE ANY OTHER STATEMENT OTHER THAN WE ARE JUST WITHDRAWING IT AT THIS TIME? BUT IF WE HAVE OTHER COMPETENT PROOF AT A LATER TIME --

THE COURT: I UNDERSTAND THAT, BUT RIGHT NOW YOU'VE EVALUATED AND YOU CHOOSE TO WITHDRAW IT?

MS. BODIN: CORRECT. INCIDENT NO. 21 WE ARE KEEPING. THAT IS JUST SIMPLY THE FILING FOR A DIVORCE. THAT IS WELL-DOCUMENTED. JUDGE'S INCIDENT NO. 22, THAT IS THE INCIDENT AT MEZZALUNA WHERE THE DEFENDANT STARED AND MADE A COMMENT WITH REGARD TO NICOLE BROWN SIMPSON STILL BEING HIS WIFE. YOUR HONOR, COULD THE COURT DIRECT THE DEFENDANT NOT TO MAKE COMMENTS DURING MY ARGUMENT TO THE COURT?

MR. COCHRAN: HE WAS SPEAKING TO ME, YOUR HONOR.

THE COURT: MISS BODIN.

MS. BODIN: YES, THANK YOU. JUDGE'S INCIDENT NO. 23 WITH REGARD TO AGAIN THE DEFENDANT SHOWING UP AT A RESTAURANT CALLED TRYST WHICH WE BELIEVE IS EVIDENCE OF STALKING AND SHOWS JEALOUSLY, AS DOES THE MEZZALUNA INCIDENT, WE WOULD INTEND TO KEEP THAT. JUDGE'S INCIDENT NO. 24, THIS IS THE INCIDENT INVOLVING THE DEFENDANT LOOKING THROUGH THE WINDOW OF NICOLE BROWN SIMPSON'S HOME ON GRETNA GREEN WAY WHERE HE SAW HER IN AN INTIMATE ACT.

THE COURT: MISS BODIN, I'M GOING TO ASK YOU AT THIS POINT, SINCE IT APPEARS ON YOUR LIST, THE SECOND PAGE, WHETHER YOU INTEND TO CONTINUE TO OFFER THOSE ITEMS THAT YOU'VE ALREADY DISCUSSED AND FLIP OVER THEN -- AT THIS POINT WE ARE TRYING TO SETTLE THE STATE OF THE RECORD AS TO WHAT IT IS YOU INTEND -- WHAT IT IS YOU INTEND TO WITHDRAW AT THIS POINT, SO LET'S JUMP AHEAD TO --

MS. BODIN: YES, YOUR HONOR.

THE COURT: I AM INTERESTED IN THE ONES THAT YOU ARE WITHDRAWING, SO IT IS CLEAR WHAT WE ARE TALKING ABOUT, SO LET'S SKIP TO 36.

MS. BODIN: YES, YOUR HONOR. NO. 36, THE PEOPLE ARE WITHDRAWING THAT.

THE COURT: ALL RIGHT.

MS. BODIN: INCIDENT NO. 37, THE PEOPLE ARE WITHDRAWING IT.

THE COURT: THESE ARE BOTH FROM THE JOURNAL --

MS. BODIN: THOSE ARE ACTUALLY STATEMENTS, I BELIEVE, WITH REGARD TO STALKING AND THAT THE DEFENDANT WOULD KILL HER. WE ARE SEEKING TO WITHDRAW THAT STATEMENT.

THE COURT: OKAY.

MS. BODIN: JUDGE'S INCIDENT NO. 43, THAT WILL BE THE FROGMAN INCIDENT, THE PEOPLE WOULD SEEK TO -- THE PEOPLE ARE WITHDRAWING IT AT THIS POINT. INCIDENT NO. 44 WE ARE WITHDRAWING. VICTIM NO. 45 -- I MEAN SORRY, JUDGE'S INCIDENT NO. 45.

THE COURT: ALL RIGHT.

MS. BODIN: NO. 46. NOW, SKIPPING DOWN TO NO. 49 WITH REGARD TO THE VICTIM'S REFUSAL TO SEE THE DEFENDANT. WE ARE WITHDRAWING INCIDENT NO. 50. JUDGE'S INCIDENT NO. 51 TO BE WITHDRAWN. AND THERE ARE TWO SEPARATE INCIDENCES THAT WE HAVE INCLUDED THAT ON THE JUDGE'S LIST, AND YOU ARE SEEING THEM AT THE BOTTOM, WITH REGARD TO ASHTON STREET AND VICTORIA BEACH INCIDENTS, AND FINALLY ON THE LAST PAGE WE ARE SEEKING TO INCLUDE, IT WAS ADDED IN, IT WAS NOT ON YOUR LIST WITH REGARD TO THE SOJOURN CONTACTS.

THE COURT: ALL OF THESE ITEMS THE PEOPLE ARE WITHDRAWING.

MS. BODIN: OKAY. THANK YOU.

THE COURT: ALL RIGHT. MISS BODIN.

MS. BODIN: ALL RIGHT. AND THE COURT, AT THE END OF YESTERDAY, AS I HAD PREVIOUSLY STATED A FEW MOMENTS AGO, HAD QUESTIONED THE PEOPLE WITH REGARD TO EVIDENCE CODE SECTION 1250 AND THE ENTRANCE OF HEARSAY STATEMENTS WITH REGARD TO FEAR. THE GENERAL RULE ON THIS IS THAT STATE OF MIND CAN COME IN WHEN THERE IS CONDUCT IN CONFORMITY AND THERE IS SOME SORT OF RELEVANCY TO THIS CASE. NOW, WE HAVE STATEMENTS MADE WITH REGARD TO FEAR, AND SPECIFICALLY THE STATEMENTS NOW THAT I'M HONING IN ON ARE THESE STATEMENTS AND THESE ARE VERY CLOSE IN TIME TO THE -- TO THE ACTUAL CRIME. THERE WAS A STATEMENT MADE TO BETSY ROCKETT WHEREIN THE VICTIM SAID "I'M AFRAID. HE IS PEEPING THROUGH MY WINDOW AND WEARING DISGUISES," AND THEN THERE ARE STATEMENTS MADE, WHICH WE FOUND OUT ABOUT YESTERDAY, TO A DOMESTIC VIOLENCE COUNSELOR AT SOJOURN STATING THE FEAR OF THE VICTIM AND THAT HE WAS STALKING HER AND THAT SHE WAS AFRAID AND CONFUSED. THOSE ARE VERY CLOSE IN TIME. THE STATEMENT TO SOJOURN WAS MADE WITHIN FIVE DAYS OF THE ACTUAL KILLING. THE STATEMENT MADE TO BETSY ROCKETT WAS MADE WITHIN TWO WEEKS -- TWO WEEKS BEFORE THE ACTUAL KILLING. I HAVE TWO ARGUMENTS TO MAKE TO THE COURT THIS MORNING WITH REGARD TO STATEMENTS OF FEAR. FIRST OF ALL, THOSE STATEMENTS OF FEAR ARE RELEVANT TO SHOW HOW THE CRIME WAS COMMITTED. THERE WAS A STATEMENT OF FEAR. AND THE VICTIM WOULD HAVE TO HAVE HAD CONFORMED HER CONDUCT AND THAT HAS TO BE RELEVANT TO AN ISSUE IN THE CASE. SHE STATED THAT SHE WAS AFRAID. AND LIKE THE FINCH CASE, IF SHE WAS AFRAID, SHE WOULD NOT HAVE GONE OUTSIDE ON THE NIGHT THAT THE MURDER WAS COMMITTED. SHE PARTICULARLY WOULD NOT HAVE GONE OUTSIDE, GIVEN THE DEFENDANT'S DEMONSTRATED POSSESSIVE RAGE WITH REGARD TO HER INVOLVEMENT WITH OTHER MEN. WE KNOW THAT MR. GOLDMAN WAS ON HIS WAY TO DELIVER GLASSES. THIS CRIME -- THIS CRIME AND THE WAY THAT IT WAS COMMITTED SHOWS THAT THE VICTIM WAS TAKEN BY SURPRISE, AND LIKE THE FINCH CASE THAT WE HAVE CITED IN OUR BRIEF, SHE -- WHAT WE ARE SAYING TO THE COURT IS THAT SHE WOULD HAVE -- NOT HAVE GONE THERE -- WOULD NOT HAVE GONE OUTSIDE IF SHE HAD KNOWN THAT THE DEFENDANT WAS OUT THERE, AND THAT IS ON ALL FOURS WITH THE FINCH CASE, WHERE IN THE FINCH CASE, WHAT THE -- WHAT THE VICTIM IN THAT CASE DID HAD EXPRESSED FEAR AND THEN WENT BACK TO HER RESIDENCE AND WAS ULTIMATELY KILLED IN HER RESIDENCE BY THE DEFENDANT. IT IS ON ALL FOURS WITH FINCH.

THE COURT: WITH REGARDS TO THE FACTS, TO SAY THAT IT IS ON ALL FOURS WITH FINCH, PART OF THE PROBLEM IS THAT THE FACTUAL BASIS FOR THAT ASSERTION I'M NOT CLEAR ON. THE VICTIMS' BODIES WERE FOUND AT THE BOTTOM OF THE STAIRWAY.

MS. BODIN: CORRECT.

THE COURT: WHERE IS THAT IN RELATIONSHIP TO THE ACTUAL DOORWAY OF THE CONDOMINIUM BELONGING TO MRS. SIMPSON?

MS. BODIN: ABOUT TWENTY FEET.

THE COURT: IF YOU RECALL, NONE OF THAT IN PARTICULAR, AS I RECALL, IS IN EVIDENCE AT THIS POINT.

MS. BODIN: NO.

THE COURT: OKAY.

MS. BODIN: ALL RIGHT. IN ADDITION, WE KNOW THAT THIS CRIME WENT UNDETECTED FOR A VERY SHORT PERIOD OF TIME, THAT THERE WAS NO SCREAMING THAT WAS HEARD BY THE NEIGHBORS, AGAIN SPEAKING TO THE ELEMENT OF SURPRISE. THE VICTIM EXPRESSED SO MUCH FEAR TO SO MANY PEOPLE AND SO CLOSE IN TIME TO THE MURDER THAT THESE EXPRESSIONS OF FEAR CAUSED HER TO ACT IN A CERTAIN WAY THAT IS RELEVANT TO THE WAY THAT THIS CRIME WAS COMMITTED.

AND THIS IS INFORMATION THAT A JURY SHOULD HEAR TO PERMIT THEM TO MAKE REASONABLE INFERENCES ABOUT THE WAY THE CRIME OCCURRED. MY SECOND ARGUMENT WITH REGARD TO EXPRESSIONS OF FEAR RELATE TO ESTRANGEMENT ARGUMENT AND I THINK THE ISSUE OF ESTRANGEMENT IS CENTRAL TO THIS CASE BECAUSE AN EXPERT WILL TESTIFY THAT IN A CASE SUCH AS THIS, A DOMESTIC VIOLENCE CASE, ESTRANGEMENT IS FREQUENTLY A TRIGGER FOR HOMICIDE. THE ARGUMENT IS THIS: SHE MADE AN EXPRESSION OF FEAR TO SOJOURN. HER FEAR DROVE HER TO CALL SOJOURN AND MAKE A CONTACT WITH THEM, SOJOURN BEING A BATTERED WOMAN'S SHELTER AND AN ORGANIZATION THAT EXISTS FOR THE PURPOSE OF HELPING WOMEN WHO ARE BATTERED. HER CONDUCT WAS IN CONFORMITY WITH HER FEAR. IT SPEAKS TO ESTRANGEMENT. A PERSON WOULD NOT CALL A SHELTER BECAUSE THEY WERE HAVING A GOOD RELATIONSHIP WITH THEIR HUSBAND OR THEIR EX-HUSBAND. THEY WOULD CALL BECAUSE THEY ARE SEEKING TO GET AWAY, BECAUSE THEY ARE AFRAID, AND SO WE SEE AN ESTRANGEMENT THEME BEGIN. NOW, THE QUESTION IS HOW IS THIS RELEVANT? SHE IS MANIFESTING ESTRANGEMENT. WE KNOW THAT IN ANOTHER WAY ALSO. WE KNOW THAT SHE GAVE THE DEFENDANT BACK A BRACELET THAT SHE HAD RECEIVED FOR HER BIRTHDAY. HE ADMITS THAT IN HIS STATEMENT TO THE POLICE. IT IS THE PEOPLE'S CONTENTION THAT AT THE POINT OF THIS ESTRANGEMENT THE DEFENDANT THEN WAS GIVEN A MOTIVE TO KILL, BECAUSE ESTRANGEMENT IS SHOWN OVER AND OVER AND OVER AGAIN IN THE DOMESTIC VIOLENCE LITERATURE TO BE THE TRIGGER, THE MOTIVE FOR A KILLING IN THIS TYPE OF HOMICIDE. AND IN FACT, WHAT AN EXPERT WILL TELL THIS COURT, AND THIS IS WHY AN EXPERT IS SO IMPORTANT FOR A JURY AND FOR THIS COURT, IS THAT A WOMAN IS SIX TIMES MORE LIKELY TO BE KILLED WHEN SHE LEAVES, AND IN FACT IN HOMICIDES OF THIS TYPE, BY THE END OF TWO MONTHS, IF A WOMAN IS TO BE KILLED -- IF YOU LOOKED AT A HUNDRED WOMEN WHO WERE HOMICIDE VICTIMS IN THIS TYPE OF A MURDER, 47 PERCENT OF THEM, 47 OF THEM WOULD HAVE BEEN KILLED WITHIN THE FIRST TWO MONTHS.

THE COURT: SO LET ME ASK YOU A QUESTION SO I UNDERSTAND YOUR ARGUMENT. YOU ARE ARGUING THAT THE STATEMENT TO A COUNSELOR AT SOJOURN, IF WE CAN PROVE THAT IT IS IN FACT MRS. SIMPSON WHO MADE THAT CALL --

MS. BODIN: CORRECT.

THE COURT: -- AND IF YOU CAN ESTABLISH OR DETERMINE THE BRACELET AND MAKE THE ESTRANGEMENT ARGUMENT, THEN THAT BRINGS IN TESTIMONY THROUGH BATTERED WOMEN'S SYNDROME. AND COULD YOU TELL US WHAT THAT MEANS?

MS. BODIN: HER STATEMENT -- NO, I'M ARGUING 1250 ONLY, BUT THE COURT I THINK NEEDS TO KNOW TO MAKE ITS RULING WITH REGARD TO 1250 -- NEEDS TO KNOW WHY THE ESTRANGEMENT ISSUE IS SO IMPORTANT. HER CONDUCT IN CALLING THE SHELTER INDICATES THAT SHE IS TRYING TO DISTANCE HERSELF FROM THE DEFENDANT. THIS WAS CLEARLY COMMUNICATED TO THE DEFENDANT WITH THE RETURN OF THE BRACELET. HER CONDUCT WITH REGARD TO DISTANCING HIM, THE ESTRANGEMENT, MOTIVATED THIS MURDER. THAT IS WHAT WE ARE SAYING.

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

MR. GORDON: SORRY, YOUR HONOR.

THE COURT: THAT IS ALL RIGHT.

MS. BODIN: ESTRANGEMENT IS ABSOLUTELY CENTRAL TO UNDERSTANDING THIS CASE. IT MOTIVATES THIS MURDER. AND THIS STATEMENT OF FEAR AND HER CONDUCT IN CONFORMITY WITH HER STATEMENT OF FEAR IS RELEVANT TO THAT ISSUE OF ESTRANGEMENT WHICH PROVIDES MOTIVE FOR THE DEFENDANT TO KILL.

THE COURT: ALL RIGHT. MY CONCERN THEN IS GIVEN THE EVIDENCE CODE SECTION THAT INDICATES THE ADMISSIBILITY OF EXPERT TESTIMONY REGARDING BATTERED WOMEN'S SYNDROME, HAS AN EXPRESS LIMITATION, AN EXPRESS EXCEPTION WHEN THAT EVIDENCE IS BROUGHT IN TO PROVE THE INCIDENT THAT IS CHARGED, CORRECT?

MS. BODIN: WE ARE NOT TALKING ABOUT BATTERED WOMEN'S SYNDROME HERE. I MEAN, GENERALLY WE ARE GOING TO BE TALKING ABOUT IT IN THIS CASE. WE ARE TALKING ABOUT THE ENTRANCE OF EXPRESSIONS OF FEAR.

THE COURT: BUT TO EXPLAIN YOUR ESTRANGEMENT THEORY DON'T YOU HAVE TO BRING THAT IN THROUGH A BATTERED WOMEN'S SYNDROME EXPERT?

MS. BODIN: YES, YOUR HONOR, WE DO, BUT I THINK -- ALSO THINK WITHIN THE REALM OF COMMON SENSE, WHEN A PERSON IS DISTANCING -- DISTANCING THEMSELVES FROM AN INDIVIDUAL WHO HAS EXPRESSED OVER AND OVER AGAIN IN A LONG-TIME RELATIONSHIP, AND THE CASES DEMONSTRATE THIS, THAT THEY WISH TO BASICALLY CONTROL THIS PERSON, TO MAKE CONTACT WITH THEM, TO POSSESS THEM, TO BE JEALOUS OF THEM, ACTS OF ESTRANGEMENT ARE FREQUENTLY MOTIVES FOR MURDER.

THE COURT: CAN YOU CITE ME TO A CASE ANYWHERE IN THE UNITED STATES THAT ALLOWS THAT?

MS. BODIN: YOUR HONOR, THERE ARE ACTUALLY THREE CASES WITH REGARD TO POSSESSIVENESS AND JEALOUSY THAT ARE STATED IN OUR BRIEF.

THE COURT: POSSESSIVENESS AND JEALOUSY ARE THINGS THAT ARE RELATIVELY COMMON. THIS THEORY OF ESTRANGEMENT --

MS. BODIN: THE DISTANCING --

THE COURT: I UNDERSTAND WHAT YOU ARE TALKING ABOUT, BUT I'M SAYING WITH REGARD TO YOUR SPECIFIC THOUGHT PROCESS, IS THERE ANY CASE THAT YOU ARE AWARE OF ANYWHERE IN ANY JURISDICTION THAT INDICATES THIS THEORY?

MS. BODIN: CAN I HAVE JUST A MOMENT?

THE COURT: SURE.

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

MS. BODIN: WELL, YOUR HONOR, I WOULD ASK THE COURT TO LOOK AT THE CASE OF PEOPLE VERSUS DE MOSS, WHICH WE HAVE CITED IN OUR BRIEF, WHERE THE DEFENDANT WAS HEARD TO SAY, "IF I CAN'T HAVE HER, NOBODY ELSE WILL."

THE COURT: BUT I THINK THAT THAT IS PRETTY OBVIOUS TO A TRIER OF FACT WITHOUT REFERENCE TO ESTRANGEMENT THEORY.

MS. BODIN: YOUR HONOR, I THINK THAT SHE MAKES A STATEMENT OF FEAR. SHE CALLS -- SHE CALLS A SHELTER. CLEARLY PEOPLE DON'T CALL SHELTERS BECAUSE THEY WANT TO GET BACK TOGETHER WITH SOMEBODY. THE QUESTION IS WHAT IS THE DEFENDANT'S REACTION TO THIS DISTANCING, EVEN IF WE DON'T CALL IT ESTRANGEMENT? WHATEVER WE WANT TO CALL IT, SHE WANTS TO DISTANCE HERSELF FROM HIM. HER CONDUCT IS RELEVANT TO SOMETHING THAT HE DID LATER; HE KILLED HER, AND HE KILLED HER BECAUSE SHE WAS DISTANCING HERSELF FROM HIM AFTER HE EXPRESSED OVER A LONG PERIOD OF TIME THAT, YOU KNOW, IF I -- I CAN'T LET HER GO. I MEAN, HE SAID THAT. HE SAID THAT TO THE MOTHER OF THE VICTIM, I CAN'T LET HER GO, AND THE POINT THAT SHE TRIES TO MAKE HIM GO, TO MAKE HIM LET GO, THAT IS MOTIVATION FOR KILLING.

THE COURT: YOU ARE WITHDRAWING THAT ONE, HOWEVER.

MS. BODIN: I DON'T BELIEVE WE DID, YOUR HONOR, AND IF WE DID, IT WAS NOT INTENTIONAL.

(BRIEF PAUSE.)

MR. GORDON: NO. 41.

MS. BODIN: IT IS NO. 41, THE DEFENDANT WAS THE ONLY WOMAN HE WANTED.

THE COURT: ALL RIGHT.

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

MS. BODIN: YOUR HONOR, I THINK WHAT IS IMPORTANT HERE IS THAT WE KNOW ABOUT ESTRANGEMENT THEORIES, ABOUT EMPIRICAL RESEARCH, BUT WE ALSO KNOW ABOUT, ALTHOUGH THEY DON'T CALL IT ESTRANGEMENT THEORIES, SUCH AS A CASE LIKE DE MOSS, WHERE THIS KIND OF DISTANCING, IF I CAN'T HAVE HER NOBODY ELSE WILL, DOES PROVIDE A MOTIVE FOR MURDER. AND THE CASE LAW IS PRETTY CLEAR ON THAT AND DE MOSS IS CITED IN OUR BRIEF. DOES THE COURT HAVE ANY QUESTIONS FURTHER FOR ME WITH REGARD TO 1250?

THE COURT: NO. I UNDERSTAND WHAT YOUR ARGUMENT IS.

MS. BODIN: OKAY. AND FINALLY, THE COURT HAD AGAIN AT THE END OF YESTERDAY ASKED US TO BASICALLY TALK ABOUT WHAT SOME OF OUR THEORIES WITH WERE REGARD TO ADMISSIBILITY. I'M NOT GOING TO SPECIFICALLY ADDRESS THE HEARSAY DISCUSSIONS, BUT I THINK I COVERED THAT PRETTY CLEARLY YESTERDAY, UNLESS THE COURT HAS QUESTIONS FOR ME ON THAT.

THE COURT: NOT ON THE EXCITED UTTERANCE. THE CASE LAW IS PRETTY CLEAR.

MS. BODIN: AND I THINK OUR BRIEF IS PRETTY CLEAR ON THAT. HOWEVER, THE COURT I THINK ASKED ME, WELL, WHAT IS THE BIG PICTURE HERE? THAT IS THE QUESTION THAT THE COURT IS ASKING ME, WHAT DOES ALL THIS EVIDENCE MEAN? THERE IS A BIG PICTURE AND THERE IS A LITTLE PICTURE. THE LITTLE PICTURE I THINK IS THAT THE ACTS THAT WE ARE TALKING ABOUT, THE STATEMENTS MADE BY THE DEFENDANT, FALL INTO SIX BASIC CATEGORIES.

AND THE FIRST CATEGORY IS OBSESSIVE AND JEALOUS BEHAVIOR. FOR EXAMPLE, THE INCIDENTS THAT WE HAVE CITED TO THE COURT WITH REGARD TO OBSESSIVE AND JEALOUS BEHAVIOR. HE SHOWS UP AT RESTAURANTS. SHE IS STILL MY WIFE. IF I CAN'T HAVE HER, NOBODY ELSE CAN HAVE HER. THE INCIDENTS THAT I HAVE CITED WITH THE COURT ARE REPLETE WITH OBSESSIVENESS TO THE POINT WHERE HE IS LOOKING IN HER WINDOW TO SEE WHAT SHE IS DOING IN THE MIDDLE OF THE NIGHT. THERE IS A CASE -- THERE ARE CASES WITH REGARD TO OBSESSIVENESS, OBSESSING, RATHER, JEALOUSY AND POSSESSIVENESS. ONE OF THEM I CITED TO THE COURT WHICH IS DE MOSS WHICH IS CONTAINED WITHIN OUR BRIEF, IF I CAN'T HAVE YOU, NOBODY ELSE WILL. THERE IS THE SHAVER CASE, WHICH IS CITED IN OUR BRIEF, WHERE THE DEFENDANT IN THAT CASE HAD ACCUSED THE VICTIM OF BEING WITH OTHER MEN. THERE IS THE CARTIER CASE, ONCE AGAIN A CASE ON JEALOUSY, AND THE DANIELS CASE WHICH IS ALSO A CASE INVOLVING JEALOUSY. AND WHAT THE COURTS HAVE CONSISTENTLY SAID IN THOSE FOUR CASES IS THAT POSSESSIVENESS AND JEALOUSY PROVIDE A MOTIVE FOR MURDER. SECONDLY, AND THE NEXT CATEGORY, ARE EMOTIONAL AND -- ARE EMOTIONAL ABUSE AND PUBLIC HUMILIATION, AND THERE IS A CASE ON THAT, THE CASE OF PEOPLE VERSUS DANIELS, WHICH I HAVE JUST CITED TO THE COURT, WHERE THERE IS A HISTORY OF ENMITY AND QUARRELS WHERE THERE IS BASICALLY PUBLIC ABUSE GOING ON AND THAT PROVIDES A MOTIVE ALSO FOR MURDER. PROPERTY DESTRUCTION. THERE IS LOTS OF PROPERTY DESTRUCTION INCIDENTS CONTAINED WITHIN THE FACTS THAT WE HAVE TALKED ABOUT TO THE COURT. WE HAVE A CAR THAT HAS BEEN DESTROYED, WE HAVE DOORS THAT ARE KICKED IN, WE HAVE PICTURES THAT ARE WRECKED.

THE COURT: SLOW DOWN. SLOW DOWN.

MS. BODIN: OKAY. AND THERE ARE TWO CASES CITED IN OUR BRIEF, HELFEND AND HAYLOCK, BOTH OF THOSE INVOLVING ARSON. ONE OF THEM, INTERESTINGLY ENOUGH, INVOLVING THE ARSON OF A CAR, THAT WOULD BE THE HAYLOCK CASE, AND ONCE AGAIN THE COURT HAS SAID THAT THAT PROVIDES A MOTIVE AND A -- FOR A PERMISSIBLE 1101(B) PURPOSE. THERE ARE CASES ON STALKING, AND INTERESTINGLY, THERE IS A CASE ON STALKING AND STARING THAT TALKS ABOUT STALKING AND STARING AND FOLLOWING AS BEING ADMISSIBLE ON THE ISSUE OF PREMEDITATION, AND THAT IS THE NICHOLAUS CASE WHICH IS CITED IN OUR BRIEF. PHYSICAL VIOLENCE REALLY IS TAKEN UP IN THE ZACK CASE. IT IS ALSO TAKEN UP I BELIEVE IN THE DANIELS CASE. IN ZACK IT WAS ADMISSIBLE ON THE ISSUE OF IDENTITY. IN DANIELS IT WAS ADMISSIBLE ON THE ISSUE OF MOTIVE. I MIGHT ALSO ADD THAT THERE WAS AN ARGUMENT MADE BY MR. UELMEN YESTERDAY THAT NONE OF THE ACTS OF PHYSICAL VIOLENCE ARE SIMILAR TO THE CRIME THAT WAS COMMITTED, AND I THINK IT IS IMPORTANT TO SAY THAT IF THEY HAD TO BE EXACTLY SIMILAR -- AND SIMILARITY, BY THE WAY, IS NOT THE TEST AND I WILL TALK ABOUT THAT IN A MOMENT -- WHAT THAT WOULD MEAN IS THAT THE DEFENDANT WOULD HAVE HAD TO KILL THE VICTIM TWICE. SINCE WE KNOW THAT IS NOT POSSIBLE, THAT CAN'T POSSIBLY BE THE STANDARD AND ZACK TALKS ABOUT THAT. FINALLY, WITH REGARD TO FINANCIAL MANIPULATION, AND THERE ARE INCIDENTS WITH REGARD TO FINANCIAL MANIPULATION AND THERE IS TWO OF THEM. THE FIRST ONE IS A PRENUPTIAL LETTER WHERE BASICALLY THE DEFENDANT SAYS, WELL, YOU KNOW, IF THIS EVER HAPPENS AGAIN THIS PRENUPTIAL AGREEMENT IS VOID, USING IT AS A TOOL TO KEEP HER CLOSE TO HIM. OKAY, I'M NEVER GOING TO DO THIS AGAIN, IT IS NEVER GOING TO HAPPEN AGAIN. HERE, I'M GOING TO PUT IT IN WRITING, THIS IS A PRENUPTIAL AGREEMENT. THAT IS FINANCIAL MANIPULATION. HE ALSO, TOWARD THE END OF THEIR RELATIONSHIP, CLOSE TO THE TIME WHEN HE KILLED THE VICTIM, HE SENT A LETTER TO HER WITH REGARD TO REPORTING HER TO THE IRS, AGAIN ATTEMPTING TO MANIPULATE HER, TO THREATEN HER THROUGH FINANCIAL MEANS, AND THERE IS A CASE ON THAT AND THAT IS THE CASE OF ARGENTOS. THAT, INTERESTINGLY ENOUGH, INVOLVED GOLDMINERS, AND WHAT THE COURT SAID IS EVIDENCE OF FINANCIAL MANIPULATION IS ADMISSIBLE ON THE ISSUE OF MOTIVE. CLEARLY THESE CASES ARE NOT LIMITED MERELY TO PHYSICAL ASSAULT. WE ARE NOT JUST TALKING ABOUT PHYSICAL ASSAULT HERE. WE ARE TALKING ABOUT A LARGE PATTERN OF ABUSIVE ACTS, NOT JUST PHYSICALLY ABUSIVE ACTS. THERE ARE MANY WAYS THAT YOU CAN ABUSE SOMEBODY. YOU CAN ABUSE THEM BY TRYING TO MANIPULATE THEM FINANCIALLY, AS I HAVE JUST SAID, BY RUINING THEIR PROPERTY, IMPORTANT PROPERTY, PICTURES, THINGS THAT PEOPLE HOLD NEAR AND DEAR TO THEIR HEART. AND THAT BRINGS US TO THE BIG PICTURE AND THE BIG PICTURE IS EWOLDT. I THOUGHT IT WAS INTERESTING YESTERDAY THAT THE DEFENSE CITED EWOLDT AND MADE IT LOOK LIKE THAT WAS A CASE THAT WAS GOOD FOR THE DEFENSE. IT IS NOT GOOD FOR THE DEFENSE. IT IS A WONDERFUL CASE FOR THE PEOPLE ON COMMON PLAN, SCHEME AND DESIGN. AND IN THAT COURT THE LET IN EVIDENCE OF COMMON SCHEME AND DESIGN AND WE HAVE CITED THAT IN OUR BRIEF. AND MR. GOLDBERG IS GOING TO TALK IN GREAT DEPTH ABOUT THE EWOLDT COURT; HOWEVER, I WILL SAY THIS TO THE COURT, THAT THE COMMON PLAN, THE MONDAY DESIGN OF ALL THESE ACTS IS TO CONTROL AND TO DOMINATE NICOLE BROWN SIMPSON.

IF PHYSICAL VIOLENCE DOESN'T WORK, WELL, LET'S TRY A LITTLE FINANCIAL MANIPULATION. WELL, IF THAT DOESN'T WORK, HEY, LET'S USE A LITTLE PROPERTY DESTRUCTION. IF THAT DOESN'T WORK, WELL, MAYBE I WILL START FOLLOWING HER AROUND AND SHOWING UP EVERYWHERE SHE GOES, SHOW UP AT RESTAURANTS AND SHOWS UP AT HER HOUSE. AND HE HAS SEEN BY MANY PEOPLE DOING THIS; THE COLBYS, KEITH ZLOMSOWITCH, JEFFREY KELLER, PEOPLE WHO ARE SEEING HIM FOLLOWING HER WHEREVER SHE GOES, IN HER HOME, IN HER RESTAURANT, CALLING HER. THIS IS VERY IMPORTANT BECAUSE IT DOES SHOW A COMMON PLAN TO CONTROL HER, AND WHEN HE FINALLY COULDN'T CONTROL HER, WHEN SHE WAS FINALLY BREAKING AWAY FROM HIM, WHEN SHE HAD FINALLY ESTRANGED HERSELF FROM HIM AND TRIED TO DISTANCE HERSELF FROM HIM, IT IS THE PEOPLE'S CONTENTION THAT HE KILLED HER. AND ALL OF THESE ACTS PROVIDE POWERFUL MOTIVE AND SPEAK LOUDLY TO THE ISSUE OF IDENTITY AND THAT IS WHAT ZACK SAYS. ZACK SAYS, LOOK, LET'S JUST LOOK AT IT THIS WAY. IF THERE IS A PAST HISTORY OF QUARRELS AND ABUSE AND ENMITY, THAT COMES IN FOR THE ISSUE OF IDENTITY. THAT IS THE PLAIN MEANING OF ZACK.

AND THE OTHER THING THAT ZACK SAYS, AND I THINK THIS IS VERY IMPORTANT, ZACK SAYS THIS: "NO DEFENDANT IS ENTITLED TO MAKE A REPRESENTATION TO A JURY THAT THEIR PARTING WAS PEACEFUL AND FRIENDLY, WAS DEVOID OF CONFLICT WHEN IN FACT THERE WAS A LONG HISTORY," AS IN THIS CASE, "OF ABUSE ON MANY LEVELS." AND THAT IS THE TRUTH OF THIS CASE AND ALL OF THESE ACTS OF ABUSE STARTING IN 1977 PROVE A LONG AND VIOLENT HISTORY AND THAT IS THE RELEVANCE. IT SHOWS A PATTERN.

THE COURT: MISS BODIN, LET ME ASK YOU THIS THEN: THE ZACK CASE APPEARS TO BE A VERY IMPORTANT PART OF YOUR STRATEGY AND REASONING FOR THE ADMISSIBILITY OF THIS HISTORY, AND MY CONCERN IS THAT ZACK, ALTHOUGH IT IS NOT CLEAR FROM THE RECORD OF ZACK, THE ACTUAL WRITTEN OPINION IS NOT CLEAR, THE INFERENCE IS THAT THE EVIDENCE THAT YOU ARE SEEKING TO ADMIT THAT ZACK DID ALLOW WAS ALLOWED IN REBUTTAL AFTER THE DEFENDANT HAD TESTIFIED. THE REASON I FEEL RELATIVELY CONFIDENT IN THAT ANALYSIS OF THE ZACK CASE IS THAT ZACK IS CITED IN THE CALIFORNIA SUPREME COURT CASES FOR THE PROPOSITION THAT THIS IS ADMISSIBLE IN REBUTTAL.

YOU ARE ASKING ME TO ALLOW THIS EVIDENCE IN IN THE PEOPLE'S CASE IN CHIEF, WHICH IS A SIGNIFICANTLY DIFFERENT SITUATION THAN WHAT WE FACE HERE TODAY, AND I DON'T KNOW THAT ZACK IS NECESSARILY A GOOD FOUNDATION FOR THAT REASON.

MS. BODIN: I UNDERSTAND THE COURT'S QUESTION AND THAT IS A VERY NATURAL BREAK INTO MR. GOLDBERG'S ARGUMENT, BECAUSE HE IS THE PERSON WHO WILL BE PRESENTING THE ARGUMENTS UNDER ZACK AND THE ANALYSIS UNDER ZACK. AND AT THIS POINT I WILL GIVE WAY THE PODIUM TO MR. GOLDBERG.

THE COURT: ALL RIGHT.

MR. GOLDBERG: GOOD MORNING, YOUR HONOR.

THE COURT: GOOD MORNING, COUNSEL.

MR. GOLDBERG: MR. UELMEN STARTED HIS ARGUMENT YESTERDAY BY TELLING US A STORY ABOUT HOW WHEN HE WAS A PROSECUTOR HE AFFIXED A LABEL TO HIS VARIOUS CASE FILES, THEN I THINK HE SAID ORGANIZED CRIME, AND WOULD DISPLAY IT IN SUCH A WAY SO THAT IT WAS VERY VISIBLE AS HE CARRIED THE CASE FILE AROUND. AND I TOOK THAT STORY AS PERHAPS YOUR HONOR DID, AS AN APOCRYPHAL KIND OF STORY THAT WAS DESIGNED TO INDICATE THE MISCHIEF THAT CAN BE CAUSED BY FIXING LABELS TO THINGS IMPROPERLY. THE STORY DID, HOWEVER, CAUSE ME TO LOOK AT MY CASE FILE, THE SAME ONE THAT I BROUGHT DOWN WITH ME TO COURT TO CONTAIN MY ARGUMENTS AND SOME OF THE SUPPORTING DOCUMENTS, AND I NOTICED THAT I ACTUALLY DIDN'T HAVE ANY LABEL ON IT AT ALL. THE PROSECUTION HAS NOT LABELED THIS CASE. THE PROSECUTION DID NOT TELL THE DEFENDANT IN THIS CASE TO ENGAGE IN A PATTERN OF ABUSE AGAINST NICOLE BROWN SIMPSON OVER A PERIOD OF 17 YEARS. THE PROSECUTION DID NOT TELL THE DEFENDANT TO COMMIT A DOMESTIC VIOLENCE HOMICIDE. HE DID THOSE THINGS BY HIMSELF. TO THE EXTENT THAT ANY LABEL ATTACHES TO THIS CASE, HE IS RESPONSIBLE FOR THAT LABEL. WE DID NOT CREATE THE EVIDENCE. WE SIMPLY TAKE THE CASE AS WE GET IT, AND IT HAPPENS TO BE THAT THAT IS THE KIND OF A CASE THAT WE ARE DEALING WITH HERE. NOW, IT WAS OUR POSITION IN OUR MOVING PAPERS, AND IT IS OUR POSITION TODAY, THAT THERE IS A PARTICULAR RULE OF ADMISSIBILITY THAT PERTAINS IN THOSE KIND OF CASES, THAT THERE IS A DIFFERENT MOTIVE ANALYSIS, IF YOU WILL, WITH RESPECT TO THE ADMISSIBILITY OF OTHER CRIMES EVIDENCE IN THIS TYPE OF A CASE, AND IT IS VERY WELL-DOCUMENTED IN CALIFORNIA CASE LAW. I AM GOING TO DISCUSS THAT WITH YOU TODAY AND I'M GOING TO DISCUSS PEOPLE VERSUS ZACK, AS I KNOW YOUR HONOR WANTS ME TO.

IN THE SECOND PART OF MY ARGUMENT I WANT TO TURN TO A MORE TRADITIONAL 1101(B) ANALYSIS AND SHOW THAT THIS EVIDENCE IS ADMISSIBLE FOR THE PURPOSES OF SHOWING INTENT, IDENTITY, COMMON PLAN, SCHEME AND DESIGN UNDER A MORE TRADITIONAL TYPE OF APPROACH. I WOULD LIKE TO COMMENT A LITTLE LATER ON THE THIRD PART OF MY ARGUMENT ABOUT THE DUE PROCESS ARGUMENT THAT WAS MADE. ALTHOUGH COUNSEL DID NOT REPEAT IT YESTERDAY, I'M NOT SURE WHETHER HE IS WITHDRAWING THAT. AND FINALLY, I WOULD LIKE TO DISCUSS EVIDENCE CODE SECTION 352 AND WHY IT IS THAT THE EVIDENCE IS NOT EXCLUDABLE UNDER THAT SECTION. NOW, FIRST IT IS OUR POSITION, AS WE SAID, THAT THERE IS A RULE BASED ON COMMON SENSE, BASED ON LAW, THAT IN RELATIONSHIP VIOLENCE CASES THE JURY MUST HEAR EVIDENCE REGARDING THE RELATIONSHIP. THAT IS ABOUT AS SUCCINCTLY AS I CAN PUT IT. AND THIS NOTION THAT WE HAVE BEEN CRITICIZED FOR OF SAYING THAT THERE IS A DIFFERENT MOTIVE ANALYSIS THAT YOU APPLY IN THIS KIND OF A CASE IS NOT IN IN WAY NOVEL, BECAUSE IN FACT THE COURT IN PEOPLE VERSUS SALAZAR, WHICH WE CITED IN OUR BRIEF, SAID THAT IN THE CONTEXT OF SEX OFFENSE CASES, QUOTE:

"IN SEX OFFENSE CASES OUR SUPREME COURT HAS SET FORTH A LESS STRINGENT TEST FOR ADMISSION OF EVIDENCE OF UNCHARGED OFFENSES," END QUOTE, "WHEN THE PRIOR OFFENSE INVOLVED THE SAME VICTIM AND THE SAME DEFENDANT." SO IT IS A VERY ANALOGOUS SITUATION. AND THE POINT IS THAT WHEN WE EXAMINE CALIFORNIA CASE LAW, WE SEE THAT THERE ARE DIFFERENT AREAS WHERE THERE ARE RELATIVELY WELL-DEFINED RULES ALMOST OF BLACK LETTER ADMISSIBILITY WITH RESPECT TO THE ADMISSIONS OF PRIOR CRIMES EVIDENCE. THE SEX OFFENSE CASES INVOLVING SITUATIONS WHERE THE PRIOR INSTANCES INVOLVE THE SAME DEFENDANT AND THE SAME VICTIM ARE ONE. WE ARE TELLING THE COURT THAT THE CALIFORNIA CASE LAW CLEARLY INDICATES THAT RELATIONSHIP VIOLENCE CASES IS ANOTHER, AND IT IS NOT SIMPLY BASED ON PEOPLE VERSUS ZACK, BUT RATHER A NUMBER OF CASES, AND I'M GOING TO TALK ABOUT THOSE AS WELL. BUT BEFORE GETTING INTO THAT RATHER DENSE LEGAL ANALYSIS, AND I THINK IT IS NECESSARY, IN LIGHT OF COUNSEL'S ARGUMENT AND SOME OF THE COURT'S QUESTIONS, I JUST WANTED TO FIRST DISCUSS FROM A COMMON SENSE PERSPECTIVE WHY IT IS THAT THIS PARTICULAR RULE EXISTS AND GIVE SOME HYPOTHETICALS IN ORDER TO ILLUSTRATE IT. WHERE SOMEONE KILLS ANOTHER PERSON WITH WHOM THEY WERE INVOLVED IN A RELATIONSHIP, IT SEEMS THAT THE FIRST QUESTION THAT THE LOGICAL MIND IS GOING TO ASK IS WHAT WAS THE RELATIONSHIP, WHAT WAS THE NATURE OF THE RELATIONSHIP, WHAT WAS GOING ON IN THE RELATIONSHIP? THOSE ARE PROBABLY THE FIRST QUESTIONS THAT ANY JURY WOULD ASK IN ANY KIND OF A RELATIONSHIP VIOLENCE CASE, AND THAT IS WHY WE HAVE AN ENTIRE BODY OF CASE LAW IN THIS STATE THAT GOVERNS ADMISSIBILITY ISSUES IN THAT CONTEXT. NOW, WHY FROM A COMMON SENSE PERSPECTIVE IS THAT THE RULE? WHY WOULD THERE BE A SPECIAL SET OF RULES OR AT LEAST A WHOLE BODY OF CASE LAW DEVOTED TO THIS AREA? WELL, LET'S SAY, YOUR HONOR, THAT IN THIS CASE OR IN ANY MURDER CASE INVOLVING A DOMESTIC VIOLENCE MURDER OR A RELATIONSHIP VIOLENCE MURDER, THE DEFENDANT WANTED TO PUT ON EVIDENCE TO SHOW THAT HE GOT ALONG VERY WELL WITH THE VICTIM, THEY WERE VERY CLOSE, THEY HELD HANDS, THEY WERE AFFECTIONATE WITH ONE ANOTHER, HE CALLED FRIENDS AND PEOPLE TO CHARACTERIZE THE RELATIONSHIP IN THAT WAY. WOULDN'T THAT CLEARLY BE ADMISSIBLE WITHOUT REGARD TO ANY 1101 ANALYSIS? IT IS NOT CHARACTER EVIDENCE; IT IS JUST EVIDENCE CHARACTERIZING A RELATIONSHIP.

AND IF YOUR HONOR CAN IMAGINE THE REVERSE OF THAT SCENARIO, THE PROSECUTION PUTTING ON EVIDENCE THAT TWO PEOPLE WERE ESTRANGED, DISTANT, THAT THEY QUARRELED, THAT THEY WERE SPLITTING APART, PERHAPS THAT THE HUSBAND HAD FALLEN IN LOVE WITH ANOTHER WOMAN, WOULDN'T THAT CLEARLY BE RELEVANT TO CHARACTERIZE THE RELATIONSHIP? AND AGAIN, IT IS NOT REALLY 1101(B) EVIDENCE WHEN YOU THINK ABOUT IT; IT IS JUST EVIDENCE WHICH CHARACTERIZES AND EXPLAINS THE DYNAMIC OF THAT RELATIONSHIP. NOW, I WOULD LIKE THE COURT TO IMAGINE ANOTHER HYPOTHETICAL SITUATION AND THAT WOULD BE A CASE WHERE THE VICTIM HAS BATTERED THE DEFENDANT OR ABUSED THE DEFENDANT, BECAUSE COMMONLY WE THINK OF THAT NOW UNDER SOME MODERN APPROACHES THAT ARE USED IN OUR COURTS AS BEING DEFENSE EVIDENCE THAT WOULD NEGATE MURDER TO MANSLAUGHTER POTENTIALLY UNDER AN HONEST BUT UNREASONABLE BELIEF IN SELF-DEFENSE. BUT THOUGHT OF ANOTHER WAY IT COULD ALSO BE VERY POWERFUL PROSECUTION EVIDENCE. IT COULD BE EVIDENCE THAT CLEARLY INDICATES WHY THE DEFENDANT HAD A MOTIVE TO KILL HIS ABUSER OR HER ABUSER. AND IF THE EVIDENCE DID NOT INDICATE AN IMMINENT FEAR, IT WOULD BE VERY POWERFUL EVIDENCE OF A FIRST DEGREE MURDER. IS THAT 1101(B) EVIDENCE? OF COURSE NOT. IT IS NOT CHARACTER EVIDENCE. IT IS SIMPLY EVIDENCE WHICH CHARACTERIZES A RELATIONSHIP AND SHOWS THE DYNAMIC IN THAT RELATIONSHIP THAT ALLOWED A MURDER TO HAPPEN. NOW, THOUGHT OF THAT WAY, THE EVIDENCE THAT WE ARE PUTTING IN, RELATIONSHIP EVIDENCE ISN'T REALLY IN MANY SENSES 1101(B) EVIDENCE, IT IS NOT CHARACTER EVIDENCE, BY RATHER SIMPLY TRANSACTIONAL EVIDENCE TO SHOW WHAT THE DEVELOPMENT WAS OF THIS RELATIONSHIP, WHAT THE CHARACTERISTICS WERE IN THAT RELATIONSHIP IN ORDER TO EXPLAIN HOW THE HOMICIDE OCCURRED. NOW, THIS RULE THAT I HAVE JUST CITED OR THAT I HAVE JUST ARGUED FROM THE COMMON SENSE PERSPECTIVE WAS PUT FORWARD VERY SUCCINCTLY IN THE CASE OF PEOPLE VERSUS HELFEND WHICH WAS A CASE WHERE A DEFENDANT MURDERED HIS EX-WIFE'S HUSBAND. AND THERE WAS A HISTORY AND A PATTERN OF HARASSMENT IN THAT CASE. FOUR YEARS PRIOR TO THE HOMICIDE HE HAD BURNT DOWN THE VICTIM'S HOME. THIS IS ONE OF THE CASES THAT MISS BODIN CITED FOR THE PROPOSITION THAT PROPERTY DESTRUCTION IS RELEVANT IN A DOMESTIC -- IN A RELATIONSHIP VIOLENCE CASE, AND HERE IS WHAT THE COURT SAID. QUOTE: "WHEN THE MOTIVE OF A CRIME IS SOUGHT TO BE ESTABLISHED BEFORE A JURY, THE WHOLE CONDUCT, LIFE AND CHARACTER OF THE PARTIES AS AFFECTING THIS QUESTION IS OPEN TO INQUIRY." WELL, THAT IS PRECISELY WHAT I'M SAYING, YOUR HONOR, THAT WHERE THIS IS A RELATIONSHIP. WE HAVE TO OPEN THAT UP RELATIONSHIP, EXAMINE IT, FIND OUT WHAT WAS GOING ON FOR THE PURPOSES OF DETERMINING WHY THAT MURDER OCCURRED. SO EVEN IF PEOPLE VERSUS ZACK WASN'T IN EXISTENCE, OF COURSE I WOULD STILL BE ASKING FOR THE EVIDENCE TO BE ADMITTED UNDER PEOPLE VERSUS HELFEND AND MANY OF THE OTHER CASES THAT WAVE CITED IN OUR BRIEF. NOW, THE DEFENSE POSITION APPEARS TO BE THAT WE CANNOT OFFER EVIDENCE ABOUT THE RELATIONSHIP, THAT WE ARE NOT ENTITLED TO CHARACTERIZE THE RELATIONSHIP. I WAS -- I DID NOT UNDERSTAND, UNTIL YESTERDAY, THE EXACT POSITION THAT THEY WERE TAKING ON THIS ISSUE. IN TRYING TO ANTICIPATE THE ARGUMENTS, I WASN'T SURE WHETHER COUNSEL WAS GOING TO SUGGEST THAT WE CAN'T SAY ANYTHING ABOUT THE RELATIONSHIP AT ALL OR WHETHER THEY WERE GOING TO PROPOSE SOME KIND OF SANITIZED VERSION OF THE RELATIONSHIP. AND I WOULD LIKE TO EXPLAIN WHAT I MEAN ABOUT THAT. LET'S IMAGINE THAT WE TRIED THE CASE, YOUR HONOR, WITHOUT TELLING THE JURY THAT NICOLE BROWN SIMPSON WAS EVER MARRIED TO THE DEFENDANT, WAS JUST A WOMAN WHO WAS MURDERED. RONALD GOLDMAN WAS JUST A MAN THAT WAS MURDERED, AND WE DID NOT TELL THEM OF THE EXISTENCE OF ANY RELATIONSHIP AT ALL. IT IS ALMOST UNIMAGINABLE, BECAUSE THE JURY WOULD HAVE TO CALL INTO QUESTION ALL OF OUR EVIDENCE, NO MATTER HOW STRONG IT WAS, POINTING TO THE DEFENDANT AS THE MURDERER, BECAUSE WHY ON EARTH WOULD ORENTHAL SIMPSON KILL AN ENTIRE STRANGER, JUST THIS WOMAN NAMED NICOLE OR THIS MAN THAT HE HAD NEVER SEEN BEFORE AND DIDN'T KNOW AND WHY WOULD HE HAVE KILLED THEM SO BRUTALLY? IT WOULDN'T MAKE ANY SENSE AND IT WOULD UNDERMINE THE PROSECUTION'S CASE, CLEARLY. IT IS ONLY WHEN YOU UNDERSTAND THE RELATIONSHIP AND YOU UNDERSTAND THE JEALOUSY, THE POSSESSIVENESS, THAT THE KILLING AND THE BRUTALITY OF THE KILLING OF NICOLE MAKES SENSE. IT IS ONLY WHEN YOU UNDERSTAND THE JEALOUSY AND THE POSSESSIVENESS THAT IT BECOMES UNDERSTANDABLE WHY ON EARTH HE WOULD KILL THIS YOUNG MAN WHO HE HAD PROBABLY ONLY SEEN ON ONE OCCASION BEFORE, THAT WOULD BE IN THE INCIDENT INVOLVING STARBUCK'S COFFEE. WHY WOULD HE KILL THEM? IT BECOMES UNDERSTANDABLE IF YOU UNDERSTAND THE JEALOUSY. THE DEFENDANT DIDN'T KNOW WHAT WE KNOW. HE DIDN'T KNOW THAT THERE HAD BEEN A CALL PLACED TO MEZZALUNA TO RETURN THE GLASSES. HE DIDN'T KNOW THAT MR. GOLDMAN WAS HOLDING THE GLASSES. HE DIDN'T KNOW THAT HE HAD HIS CAR KEYS IN HIS HAND, THAT HE WAS GOING TO DROP THEM OFF AND LEAVE. TO HIM THIS WAS A MAN WHO AT NIGHT, UNDER CIRCUMSTANCES WHICH HE BELIEVED TO BE VERY SUSPICIOUS, A POTENTIAL SUITOR WAS MEETING SOMEONE THAT HE HAD A POSSESSORY INTEREST IN AND THAT EXPLAINS WHY HE KILLED HIM, THE BRUTALITY OF IT. IN YOU SIMPLY SANITIZE IT TO THE POINT OF SAYING THERE WAS NO RELATIONSHIP, THAT CLEARLY WOULD BE THE PERPETRATION OF A FRAUD ON THE JURY. IT CLEARLY WOULD BE HIGHLY, HIGHLY MISLEADING. BUT WHAT THE DEFENSE POSITION APPEARS TO BE, IF I'M UNDERSTANDING THEM, IS NOT THAT WE HAVE TO SAY THAT THERE WAS NO RELATIONSHIP AT ALL, BUT WE HAVE TO SANITIZE IT, GIVING THEM WHAT I THINK THE DEFENSE WOULD PROBABLY CHARACTERIZE AS NEUTRAL HISTORICAL FACTS. THEY GOT MARRIED ON A CERTAIN DATE, THEY SEPARATED ON A CERTAIN DATE, THEY DIVORCED ON A CERTAIN DATE, THEY TRIED TO RECONCILE AND THAT DIDN'T WORK. THEY BROKE UP. I THINK THAT THAT IS -- THAT THEY ARE SAYING THAT THAT IS ABOUT THE EXTENT TO WHICH WE CAN EXPLAIN THIS RELATIONSHIP. BUT WHAT I WOULD SUGGEST TO YOUR HONOR IS THAT THE TERMS THAT THEY WOULD PROBABLY CONCEDE THAT WE COULD USE, THE EVIDENCE THAT THEY WOULD PROBABLY CONCEDE WE COULD USE, DOESN'T SOLVE THE PROBLEM, IT DOESN'T MAKE IT ANY LESS OF A MISLEADING SCENARIO, BECAUSE THE TERM "HUSBAND AND WIFE," THOSE AREN'T NEUTRAL TERMS. THEY DO IMPLY SOMETHING. THEY IMPLY LOVE, THEY IMPLY FIDELITY, THEY IMPLY THAT THIS MAN AT LEAST AT ONE TIME TOOK AN OATH THAT HE WOULD HONOR, THAT HE WOULD PROTECT NICOLE BROWN SIMPSON, AND A JURY IS ENTITLED TO DRAW THAT INFERENCE AND WILL DRAW THAT INFERENCE FROM THAT KIND OF EVIDENCE. IN OTHER WORDS, WHAT THEY WILL DRAW IS INFERENCES ABOUT THIS RELATIONSHIP WHICH ARE THE EXACT OPPOSITE OF WHAT WE KNOW THE TRUTH TO BE. AND I BELIEVE, YOUR HONOR, THAT THAT IS EXACTLY WHAT THE COURT IN PEOPLE VERSUS ZACK WAS TALKING ABOUT WHEN THEY SAID THAT THE DEFENDANT IS NOT ENTITLED TO HAVE THE JURY DETERMINE HIS GUILT OR INNOCENCE ON A FALSE PRESENTATION THAT HIS AND THE VICTIM'S RELATIONSHIP AND THEIR PARTING WERE PEACEFUL AND FRIENDLY, BECAUSE THAT IS THE KIND OF INFERENCE, WHICH IN THE ABSENCE OF ANY EVIDENCE, YOU WOULD DRAW AND THAT I THINK IS WHAT ZACK IS SAYING IN THE QUOTE. BY THE WAY, THAT IS ALL I THINK THEY ARE SAYING IN THAT QUOTE AND I WILL DISCUSS THAT A LITTLE BIT MORE LATER ON. THAT IS WHY THE PROSECUTION SAYS, AND IT IS NOT OVERSTATING OUR POSITION, THAT NOT TO ALLOW THIS EVIDENCE IS NOT MERELY TO DEPRIVE THE JURY OF RELEVANT EVIDENCE, IT IS TO DO SOMETHING MUCH WORSE. IT IS TO GIVE THEM JUST ENOUGH EVIDENCE TO INFER THINGS THAT ARE A HUNDRED AND EIGHTY DEGREES DIAMETRICALLY OPPOSED FROM THE TRUTH. THAT IS, IT IS TRULY AS WE SAID, TO PERPETRATE A FRAUD ON THE JURY, AND THE CALIFORNIA CASE LAW DOES NOT PERMIT THAT. NOW, WE SAY THAT THIS RULE THAT WE ARE TALKING ABOUT IS ESTABLISHED BY PEOPLE VERSUS ZACK. WHAT I WOULD LIKE TO ALSO STATE, BECAUSE COUNSEL ARGUED THAT THIS WAS THE ONLY CASE WE WERE RELYING ON -- IT IS NOT THE ONLY CASE WE ARE RELYING ON. THE REASON THAT WE RELIED SO HEAVILY ON ZACK IS BASICALLY TWO-FOLD. NO. 1, IT IS MY FEELING, AS THE FEELING OF MANY PROSECUTORS OR ATTORNEYS IN GENERAL, THAT IF YOU HAVE ONE CASE THAT REALLY TELLS YOU THAT YOU ARE RIGHT ABOUT THE LAW AND CLEARLY TELLS YOU THAT, YOU CAN CITE THAT ONE CASE AND THAT IS PRETTY MUCH ALL YOU NEED TO DO. THE LESS IS MORE TYPE OF APPROACH TO ADVOCACY. AS YOUR HONOR KNOWS BY READING OUR BRIEF, THAT WAS NOT THE APPROACH THAT WE TOOK HERE AND WE DID NOT TAKE THAT APPROACH HERE BECAUSE OF THE ARGUMENTS THAT WERE MADE BY COUNSEL IN HIS BRIEF AND BECAUSE OF THE ARGUMENTS -- WHAT HE SAID IS HE SAID ZACK IS WRONG IN A FOOTNOTE TO HIS BRIEF, SO WHAT WE FELT THAT HE HAD TO DO IS WE NEEDED TO BACK UP ALL THE WAY TO 1909, WALK ALL THE WAY FORWARD TO ZACK AND WALK FROM ZACK FORWARD TO PEOPLE VERSUS NICHOLAUS, ALL OF THESE BEING RELATIONSHIP VIOLENCE CASES, AND SHOW YOU EXACTLY WHERE THE RULES COME FROM AND EXACTLY WHY THIS RULE IS IN FACT CORRECT.

ON PAGE 27 THROUGH 33 OF OUR BRIEF WE DISCUSSED TEN RELATIONSHIP VIOLENCE CASES. NOT ONE, TEN. COUNSEL SAYS WE ONLY RELIED ON ONE. WE HAVE TEN IN THERE. MOST OF THOSE CASES ARE CASES WHERE A HUSBAND KILLED A WIFE OR A BOYFRIEND KILLED A GIRLFRIEND -- A BOYFRIEND KILLED A GIRLFRIEND. ONE OF THE CASES IS WHERE A GIRLFRIEND KILLED A BOYFRIEND. SO WE HAVE A LOT OF AUTHORITY ON THIS ISSUE AND A LOT OF THE LANGUAGE AND HOLDINGS OF THOSE CASES ARE EVERY BIT AS PERSUASIVE AS THE ZACK CASE ITSELF, AND IN FACT WERE RELIED ON BY THE COURT IN ZACK. NOW, WHEN WE SAY -- I'M GOING TO TALK ABOUT SOME OF THOSE CASES A LITTLE BIT LATER, YOUR HONOR, AS WELL, BUT I WOULD INVITE THE COURT -- IT ISN'T THAT LENGTHY A PORTION OF OUR BRIEF -- TO LOOK AT 27 THROUGH 33 BECAUSE WE REALLY DID LAY OUT THE CASES. WE TALKED ABOUT THE FACTS AND WE TALKED ABOUT THE HOLDINGS. I THINK IN LIGHT OF THE COURT'S QUESTIONS AND COUNSEL'S COMMENTS IT MIGHT BE HELPFUL TO YOUR HONOR. NOW, WHEN WE SAY THAT THERE IS A DISTINCT MOTIVE ANALYSIS IN RELATIONSHIP VIOLENCE CASES, I WOULD LIKE TO DEFINE WHAT WE MEAN AND I WOULD LIKE TO SEE IF I CAN FRAME FOR YOUR HONOR THE CONTROVERSY THAT EXISTS BETWEEN THE PROSECUTION AND THE DEFENSE, IN OTHER WORDS, WHERE WE DISAGREE, VERY PRECISELY. WHAT I MEAN IS THAT WE MEAN THAT YOU DO NOT APPLY DISTINCTIVE MO ANALYSIS. THAT IS A KEY POINT OF WHAT WE ARE SAYING WHEN WE SAY THAT THERE IS A RELAXED OR MORE LIBERAL RULE OF ADMISSIBILITY IN RELATIONSHIP VIOLENCE CASES. NOW, THE DEFENSE, ON THE OTHER HAND, IS CLEARLY CLAIMING THAT YOU STILL HAVE TO APPLY DISTINCTIVE MO ANALYSIS EVEN IN THE CONTEXT OF RELATIONSHIP VIOLENCE CASES, THAT YOU ALWAYS HAVE TO APPLY IT, IF I'M UNDERSTANDING WHAT MR. UELMEN SAID. I BELIEVE THAT THAT SHARPLY DEFINES THE KEY LEGAL DISAGREEMENT THAT EXISTS BETWEEN THE DEFENSE AND THE PROSECUTION. THEY SAY YOU HAVE TO APPLY MO, DISTINCTIVE MO. WE SAY THAT YOU DON'T. NOW, I WOULD LIKE TO DRAW THE COURT'S ATTENTION TO WHAT PEOPLE VERSUS ZACK SAYS ON THIS QUESTION, BECAUSE WHAT THEY DO, AND AGAIN I KNOW YOUR HONOR HAS READ THIS CASE, BUT I JUST POINT OUT THAT WHAT ZACK DID IS HE ACTUALLY DISCUSSED THE CALIFORNIA CASE LAW LEADING UP TO ZACK AND THEY DID IT IN A FAIRLY SCHOLARLY AND VERY NICE FASHION IN TERMS OF LAYING OUT WHY THIS IS THE LAW IN THE STATE OF CALIFORNIA, AND AFTER DOING THAT THEY SAID:

"AFTER REVIEWING THE LEADING CASES IN THIS AREA" AND THAT INCLUDED CALIFORNIA SUPREME COURT CASES WHICH ARE STILL VALID PRECEDENT "FROM THESE PRECEDENTS, AS WELL AS COMMON SENSE, EXPERIENCE AND LOGIC, WE DISTILL THE FOLLOWING RULE: WHERE A DEFENDANT IS CHARGED WITH A VIOLENT CRIME AND HAS OR HAD A PREVIOUS RELATIONSHIP WITH THE VICTIM, PRIOR ASSAULTS UPON THE SAME VICTIM, WHEN OFFERED ON A DISPUTED ISSUE, E.G., INTENT, IDENTITY, MOTIVE, ET CETERA, ARE ADMISSIBLE BASED SOLELY UPON THE CONSIDERATION OF IDENTICAL PERPETRATOR AND VICTIM WITHOUT RESORT TO A DISTINCTIVE MODUS OPERANDI ANALYSIS OF OTHER FACTORS." SO THAT IS PRECISELY WHAT WE ARE SAYING HERE AND THAT IS ONE OF THE REASONS THAT WE RELIED HEAVILY ON ZACK, SIMPLY BECAUSE THEY STATED IT SO CLEARLY AND SO NICELY, BUT THERE ARE OTHER CASES THAT STATE IT AS WELL, BUT WE SIMPLY LIKE THE LANGUAGE THAT THEY USED HERE. NOW, COUNSEL, IN THEIR MOVING PAPERS, TREATED THIS IN A FOOTNOTE AND WHAT THEY SAID ABOUT ZACK IS THEY INTERPRETED IT IN THEIR MOVING PAPERS THE SAME EXACT WAY WE DID. WE SAID, LOOK, WE KNOW THERE IS THIS CASE. WE KNOW THIS IS WHAT IT SAYS. WE KNOW IT SAYS YOU DON'T APPLY MO ANALYSIS. YOUR HONOR, IT IS WRONG. DON'T FOLLOW IT. IT IS BAD LAW. NOW, I HAVE TO COMPLIMENT THEM ON TAKING WHAT IS A VERY GUTSY APPROACH, BECAUSE THAT IS AN ARGUMENT THAT ATTORNEYS DON'T LIKE TO MAKE, THAT THERE IS A CASE THAT IS SQUARELY -- SQUARELY ADDRESSES AN ISSUE AND SAY, YOUR HONOR, PLEASE IGNORE IT, IT IS BAD LAW, ESPECIALLY WHEN YOU CAN'T COME UP WITH ANY REAL ARGUMENTS TO ADVANCE THAT POSITION AND THERE IS NO CONFLICT IN THE CASE AUTHORITY, THERE IS NO SPLIT IN THE AUTHORITY. SO WHAT THEY DID IS THEY APPEARED TO MODIFY THE APPROACH THAT THEY TOOK IN THEIR RESPONSIVE PLEADING AND THE APPROACH THAT THEY TOOK YESTERDAY, BECAUSE NOW THEY APPEAR TO BE TRYING TO DISTINGUISH ZACK AND THEY DID IT ON TWO GROUNDS: NO. 1, MR. UELMEN SAID, WELL, THE MURDER IN ZACK WAS VERY SIMILAR TO THE PRIOR INSTANCES THAT WERE ADMITTED IN THAT CASE BECAUSE THE VICTIM WAS BEATEN TO DEATH, AND WHAT THE ZACK COURT WAS REALLY SAYING IS BECAUSE OF THE SIMILARITY OF THESE INSTANCES THEY WERE ADMISSIBLE. NOTHING COULD BE FURTHER FROM THE TRUTH AND I WOULD LIKE AGAIN TO QUOTE FROM ZACK. I WOULD LIKE BRIEFLY JUST TO SAY SOMETHING ABOUT THE FACTS OF THE CASE BECAUSE WHAT HAPPENED IS HE ABSOLUTELY BRUTALLY KILLED THIS WOMAN IN ZACK AND IN MANY WAYS THE HOMICIDE OF THE WOMAN IN ZACK WAS FAR MORE GRUESOME AND HORRIFIC THAN WHAT HAPPENED TO NICOLE BROWN SIMPSON. I WOULDN'T SAY THE SAME THING WITH RESPECT TO THE MURDER OF RON GOLDMAN. AND THE PRIOR INSTANCES INVOLVED BLACK EYES, AND I KNOW THAT IF MR. UELMEN HAD BEEN REPRESENTING THE DEFENDANT IN THAT CASE HE WOULD SAY, MY HEAVENS, WHAT ON EARTH DO BLACK EYES HAVE TO DO WITH THIS KIND OF A BRUTAL HORRIFIC MURDER. AND HERE IS WHAT ZACK SAYS ON THAT:

"COMMON SENSE, EXPERIENCE AND LOGIC COMPEL THE CONCLUSION THAT THE DISTINCT DIFFERENT MODUS OPERANDI SIGNATURE CALLING CARD ANALYSIS IN THE CASES RELIED UPON BY THE APPELLANT IS INAPPLICABLE IN THE PRESENT CONTEXT. HERE, GIVEN THE BRUTAL AND UNIQUE NATURE OF THE MURDER, APPELLANT'S PRIOR ASSAULTS UPON THE DECEDENT OF NECESSITY COULD NOT SURVIVE A DISTINCTIVE MODUS OPERANDI ANALYSIS. ONE COULD NOT KILL THE SAME PERSON TWICE, YET APPELLATE EXPRESSLY CONTENDS THAT HE HAD NOT PREVIOUSLY BROKEN THE DECEDENT'S TWO ANKLES NOR HAD HE PREVIOUSLY INFLICTED 21 WOUNDS TO HER BODY, NOR HAD HE PREVIOUSLY BLUDGEONED HER ABOUT THE HEAD," AND NOTWITHSTANDING THE FACT OF THESE GROSS DISPARITIES BETWEEN THE PRIOR CRIMES AND THE CHARGED CRIME THAT THE ZACK COURT CLEARLY RECOGNIZED, THEN SAID, "IT STILL COMES IN BECAUSE WE ARE NOT GOING TO APPLY DISTINCTIVE MO ANALYSIS." NOW, COUNSEL ALSO USES A SECOND WAY OF DISTINGUISHING ZACK, AND I WANT TO DISCUSS THAT AS WELL. THAT IS THE CONCERN THAT YOUR HONOR ADDRESSED, DOES ZACK DEAL WITH IMPEACHMENT? AND I HAVE READ THIS CASE FOUR OR FIVE TIMES OVER THE PAST NUMBER OF FIVE OR SIX YEARS.

THE COURT: I HAVE READ IT FOUR OR FIVE TIMES IN THE LAST TWO DAYS.

MR. GOLDBERG: GOOD. THEN I THINK YOU BEAT ME. AND I REREAD IT AGAIN OF COURSE WHEN COUNSEL SAID, WELL, THIS IS AN IMPEACHMENT CASE BECAUSE OVER THE PAST FIVE YEARS THAT I HAVE BEEN FAMILIAR WITH THE CASE IT NEVER EVEN REMOTELY OCCURRED TO ME, AND IT SEEMS THAT THAT ENTIRE ARGUMENT IS PREMISED ON ONE SENTENCE IN SACK AND THAT ONE SENTENCE IS THE ONE THAT I ALREADY QUOTED TO THE COURT WHERE THEY SAY THAT, AND I'M PARAPHRASING, IN THE ABSENCE OF EVIDENCE CHARACTERIZING A RELATIONSHIP, THE JURY IS GOING TO BE MISLED INTO BELIEVING THAT THE PARTING OF THE DEFENDANT AND THE VICTIM WERE ON AMICABLE BASIS, AND IT IS GOING TO BE MISLED INTO BELIEVING THAT THERE WERE NO PROBLEMS IN THE RELATIONSHIP. I DON'T SEE HOW THAT SINGLE INCIDENCE AND, THAT IS THE ONLY SENTENCE IN ZACK THAT EVEN ARGUABLY SUPPORTS THE DEFENSE POSITION, CAN BE READ AS CONSTITUTING AN IMPEACHMENT ISSUE. THEY DIDN'T MENTION, AS YOUR HONOR SAID, ANYWHERE THAT THE DEFENDANT TESTIFIED. WHAT THEY MENTIONED IS THAT THE DEFENDANT'S EXTRAJUDICIAL STATEMENTS WERE PUT IN EVIDENCE AND THE STATEMENT THAT HE GAVE WAS THAT HE WAS IN CARMEL FISHING AT THE TIME OF THE MURDER, AND THE PROSECUTION PUT IN EVIDENCE TO INDICATE THAT THERE WAS A VERY SERIOUS WINTER STORM AT THE TIME; THEREFORE IT WAS HIGHLY IMPLAUSIBLE. THE ONLY THING THAT HE SAID ABOUT THE RELATIONSHIP IS HE DID IN FACT ADMIT THAT HE HAD PREVIOUSLY THREATENED HIS WIFE. THERE WAS NOTHING IN THAT EXTRAJUDICIAL STATEMENT WHICH WAS -- WHICH WAS WRITTEN ABOUT BY THE COURT IN A STEP-BY-STEP POINT-BY-POINT MANNER THAT SAID ANYTHING TO THE EFFECT THAT HE GOT ALONG WITH HIS WIFE. IN FACT, QUITE THE CONTRARY, BECAUSE AS I SAID, DID HE ADMIT THE THREATS. IF THIS HAD BEEN AN IMPEACHMENT CASE, YOUR HONOR, THEN WE WOULD HAVE SEEN CASE LAW RELATING TO IMPEACHMENT. WE WOULDN'T HAVE GONE THROUGH AN 1101 ANALYSIS, WE WOULDN'T HAVE GONE THROUGH A RELATIONSHIP VIOLENCE CASE ANALYSIS. WE WOULD HAVE SEEN EVIDENCE CODE SECTIONS IN THE 700 SERIES CITED THAT DEAL WITH IMPEACHMENT. THIS IS STRICTLY, WHEN YOU READ IT, A 1101(B) RELATIONSHIP VIOLENCE CASE THAT DISCUSSES -- DISCUSSES THE ADMISSIBILITY OF THIS EVIDENCE FOR THE PURPOSES OF ESTABLISHING AN ELEMENT OF THE PROSECUTION'S CASE, AND IN THIS CASE IT WAS IDENTITY. SO I DO SEE ZACK AS BEING ON ALL FOURS WITH THE CASE AND THAT VIEWPOINT IS STRENGTHENED BY THE FACT THAT THE CASES RELIED ON IN ZACK ALSO WERE 1101(B)/RELATIONSHIP SILENCE CASES THAT SAID THAT THIS WAS ADMISSIBLE IN THE PROSECUTION'S CASE IN CHIEF FOR PROVING IDENTITY, FOR PROVING INTENT OR PROVING ABSENCE OF ACCIDENT OR MISTAKE. THERE ARE A VARIETY OF THEORIES THAT THE CASE LAW HAS PREVIOUSLY ALLOWED THIS ON. NOW, I WOULD SUBMIT TO YOUR HONOR THAT THERE IS NO CALIFORNIA AUTHORITY THAT IS INCONSISTENT WITH THE RULE OF LAW THAT I HAVE ARTICULATED SO FAR THIS MORNING; THAT IS, THAT THERE IS A DISTINCT WAY, A DISTINCT BODY OF CASE LAW FOR ANALYZING THESE KIND OF CASES AND THAT WE DON'T APPLY DISTINCTIVE MO ANALYSIS. THE CASE THAT COUNSEL RELIED ON IN THEIR PAPERS VERY HEAVILY WAS PEOPLE VERSUS HASTON AND THAT IS THE SEMINAL CASE WHICH USES THE LANGUAGE OF PRIOR MO AND TALKS ABOUT SIGNATURE CRIMES AND THE LIKE. I WOULD LIKE TO ILLUSTRATE, HOWEVER, WHY EVEN IN THE CONTEXT OF A ROBBERY CASE, WHERE WE THINK THAT THE DISTINCTIVE MO ANALYSIS WOULD ALWAYS APPLY, IT DOESN'T EVEN ALWAYS NECESSARILY APPLY THERE, BECAUSE THE ISSUE IS ONE OF LOGICAL RELEVANCE. AND I WOULD ASK YOUR HONOR TO IMAGINE A SCENARIO WHERE I WAS TRYING, FOR EXAMPLE, A DEFENDANT FOR A ROBBERY OR A SERIES OF ROBBERIES INVOLVING DEPARTMENT STORES AND IT TURNED OUT THAT IN THIS SERIES OF ROBBERIES THE DEFENDANT HAD COMMITTED THE ROBBERIES WITH A CO-CONSPIRATOR, WITH AN UNCHARGED CO-CONSPIRATOR IN ALL THREE EVENTS. AND I SAID, YOUR HONOR, I WANT TO PUT ON EVIDENCE OF THREE OTHER ROBBERIES THAT HAPPENED A LONG TIME AGO, THEY WERE OF RESTAURANTS, AND I WANT TO INTRODUCE THEM FOR THE PURPOSES OF SHOWING IDENTITY. AND YOU SAID TO ME, OKAY, WELL, MR. GOLDBERG, WHAT IS THE DISTINCTIVE MO? WHAT IS THE DISTINCTIVE SIGNATURE OF THE PRIOR ROBBERIES? THERE ARE DISTINCTIONS. I MEAN, THE CHARGED CRIMES INVOLVED DEPARTMENT STORES; THE UNCHARGED CRIMES INVOLVED RESTAURANTS. THERE ARE ALL KINDS OF OTHER DISTINCTIONS. AND I SAID, YOUR HONOR, THERE AREN'T ANY. THERE AREN'T ANY DISTINCTIONS THAT ARE PARTICULARLY UNIQUE, EXCEPT ONE, AND THAT IS THAT IN ALL OF THE PRIOR ROBBERIES THE DEFENDANT COMMITTED THEM WITH THE SAME CO-CONSPIRATOR, UNCHARGED CO-CONSPIRATOR, AS IN THIS CASE, AND ALL I WANT TO DO IS I WANT TO SHOW THAT THESE TWO PEOPLE ARE RELATED TO ONE ANOTHER, BECAUSE IF MY WITNESSES COME INTO COURT AND THEY IDENTIFY THE DEFENDANT CORRECTLY AND THEN IDENTIFY THE UNCHARGED CO-CONSPIRATOR CORRECTLY, THAT LENDS PERSUASIVE SUPPORT TO THE IDEA THAT THE DEFENDANT AND NOT SOME OTHER PERSON WAS THE ASSAILANT IN THE CHARGED CRIME, BECAUSE I HAVE SHOWN THIS RELATIONSHIP, SO THAT IS ALL I WANT TO SHOWN IS THE RELATIONSHIP. WELL, I THINK THAT YOUR HONOR WOULD ALLOW THE EVIDENCE IN, AND I BELIEVE THAT THE REASON THAT THE COURT WOULD ALLOW THE EVIDENCE IN, ASIDE FROM THE FACT THAT IT MAKES LOGICAL SENSE, IS THAT THE FACTS THAT I JUST RELATED TO YOUR HONOR ARE PRECISELY WHAT HAPPENED IN PEOPLE VERSUS HASTON, THE VERY CASE THAT THE DEFENDANT RELIED ON WHERE THE COURT SAID THAT SHOWING THAT RELATIONSHIP, EVEN THOUGH THERE WAS NOTHING PARTICULARLY DISTINCTIVE ABOUT THE CHARGE AND UNCHARGED CRIMES IN AND OF ITSELF, WAS RELEVANT FOR THE PURPOSES OF SHOWING IDENTITY. NOW, THIS IS INTERESTING BECAUSE HASTON WAS EXTENDED IN PEOPLE VERSUS BEAMON. IT IS NOT THE BEAMON CASE THAT YOUR HONOR MIGHT BE THINKING OF DEALING WITH THE STANDARD FOR ACCOMPLICES. IT IS AN EARLIER CASE THAT WE CITED IN OUR POINTS AND AUTHORITIES, AND HERE IS WHAT THEY SAY THERE:

"THE COMMON MARK OF IDENTICAL PERPETRATOR AND IDENTICAL VICTIM IN BOTH THE CHARGED AND UNCHARGED OFFENSES IS SO DISTINCTIVE THAT IT ADDS PERSUASIVE SUPPORT TO THE INFERENCE THAT THE DEFENDANT AND NOT SOME OTHER PERSON WAS THE PERPETRATOR." THAT WAS AT PAGE 633. NOW, WHAT THEY ARE SAYING, THEREFORE, IS THAT NOW NOT ONLY CAN I GET IN A PRIOR CRIME IF THEY INVOLVE THE TWO IDENTICAL ASSAILANTS, BUT I CAN GET IN ANY PRIOR CRIME THAT INVOLVES IDENTICAL VICTIM AND IDENTICAL PERPETRATOR BASED SOLELY UPON THAT SINGLE SIMILARITY, WITHOUT REGARD TO ANALYZING ANY OTHER ACTS OF SIMILARITY. WHAT THE POINT IS THAT I'M MAKING, YOUR HONOR, IS THAT THE CASE OF HASTON ITSELF, PARTICULARLY EXTENDED BY BEAMON, BELIE THE VERY RULE THAT THE DEFENSE IS ASKING YOUR HONOR TO APPLY IN THIS CASE, THAT IS, THE DISTINCTIVE MODUS OPERANDI RULE ALWAYS APPLIES, BECAUSE HERE ARE TWO CASES THAT IT DIDN'T APPLY, EVEN THOUGH THEY DEALT WITH RELATIVELY TRADITIONALLY 1101(B) SCENARIOS WHERE TYPICALLY YOU WOULD APPLY THE RULE. THEY ARE TYPICALLY SIGNATURE FOR ANOTHER REASON AND THAT IS THAT THEY WERE RELIED ON BY THE COURT IN ZACK, AND THE WAY THAT ZACK ARRIVED AT THE CONCLUSION THAT IDENTICAL PERPETRATOR AND IDENTICAL VICTIM IN AND OF ITSELF WAS SUFFICIENT TO GET THE PRIOR CRIMES IN, WAS BECAUSE THEY SAID THAT THIS WAS THE LOGICAL INFERENCE TO BE DRAWN FROM THE HASTON CASE, WHICH COUNSEL RELIED ON, AND FROM THE BEAMON CASE, WHICH THE PEOPLE RELIED ON. YOUR HONOR, I WOULD LIKE TO NOW TURN TO THE SECOND PART OF OUR ANALYSIS WHERE I WILL BE DISCUSSING A COMMON TRADITIONAL 1101(B) TYPE APPROACH.

THE COURT: ALL RIGHT. MR. GOLDBERG, BEFORE DO YOU THAT, LET ME TAKE A COURT REPORTER RECESS FOR FIFTEEN.

MR. GOLDBERG: OKAY. THANK YOU.

THE COURT: ALL RIGHT. WE WILL STAND IN RECESS FOR FIFTEEN.

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

THE COURT: BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE PRESENT. MR. GOLDBERG, YOU WISH TO CONTINUE YOUR COMMENTS?

MR. GOLDBERG: YES, THANK YOU. YOUR HONOR, JUST BEFORE WE BROKE, I WAS ABOUT TO LAUNCH INTO THE SECOND PART OF MY ARGUMENT, WHICH IS THE TRADITIONAL EVIDENCE CODE SECTION 1101(B) ANALYSIS. AND AS WE STATED, WE HAVE THREE SUB PARTS TO THAT. WE'RE TALKING ABOUT MODE OF EVIDENCE FOR THE PURPOSES OF PROVING IDENTITY, THAT'S ONE; MOTIVE EVIDENCE FOR THE PURPOSES OF PROVING INTENT, THAT'S NUMBER TWO; AND THEN ALSO, COMMON PLAN, SCHEME AND DESIGN, WHICH IS NUMBER 3. I WOULD LIKE TO JUST START BY MENTIONING SOMETHING THAT WAS STATED IN THE DEFENSE RESPONSE BRIEF, AND THAT WAS A DISAGREEMENT THAT THEY HAD WITH OUR POSITION REGARDING THE STANDARD OF REVIEW THAT IS INVOLVED BY A TRIAL JUDGE IN LOOKING AT THIS KIND OF EVIDENCE, BECAUSE WE TOOK THE POSITION THAT THIS WAS A QUESTION OF DISCRETION THAT INVOLVES AN ISSUE OF EVALUATING THE EVIDENCE TO DETERMINE ITS RELEVANCY. AND I JUST WANTED TO GIVE ANOTHER CITE ON THAT BECAUSE I DID REALIZE THAT THERE WAS AN AMBIGUITY IN THE CITE WE HAD GIVEN PREVIOUSLY. AND THAT IS PEOPLE VERSUS HASTON AT 69 CAL. 2D 246, THE SAME CASE THAT I PREVIOUSLY HAD CITED TO THE COURT AND THAT COUNSEL RELIED ON VERY HEAVILY IN HIS POINTS AND AUTHORITIES, WHERE THEY SAID:

"IT IS CLEAR OF COURSE THAT THE ADMISSION OF OTHER CRIMES EVIDENCE TO PROVE IDENTITY IS ESSENTIALLY A MATTER WITHIN THE SOUND DISCRETION OF THE TRIAL COURT." SO THIS IS AN ISSUE THAT INVOLVES AN EXERCISE OF DISCRETION. THAT IS THE STANDARD OF REVIEW THAT YOUR HONOR IS BEING ASKED TO USE HERE. NOW, I WOULD LIKE TO JUST START WITH THE LANGUAGE OF EVIDENCE CODE SECTION 1101 ITSELF BECAUSE SO FRANKLY WE DON'T GO BACK TO THE CODE SINCE WE'VE READ IT SO MANY TIMES. BUT IN 1101(B), IT SAYS THAT:

"NOTHING IN THE SECTION PROHIBITS THE ADMISSION OF EVIDENCE THAT A PERSON COMMITTED A CRIME, CIVIL WRONG OR OTHER ACT WHEN RELEVANT TO PROVE SOME FACT SUCH AS MOTIVE, OPPORTUNITY, INTENT PREPARATION, PLAN," AND SO ON. I WON'T QUOTE THE REST OF THE LANGUAGE. AND THEN IT GOES ON TO SAY:

"EXCEPT DISPOSITION TO COMMIT SUCH AN ACT." NOW, WHEN YOU LOOK AT THAT LANGUAGE -- AND MR. UELMEN SAYS, WELL, THIS IS A RULE OF EXCLUSION OTHER COMMENTATORS ARGUE NO, IT'S A RULE OF INCLUSION. I THINK THAT'S JUST A SEMANTICS DEBATE. WHAT IS APPARENT FROM THE LANGUAGE, YOUR HONOR, IS THAT THIS IS A RELEVANCY TEST. AND THAT IS PRECISELY WHY THE STANDARD OF REVIEW IS ONE OF DISCRETION, BECAUSE WHAT IS BEING ASKED OF THE COURT IS -- IN THE LANGUAGE OF THE STATUTE, IS IT RELEVANT TO ANY OF THE ENUMERATED PROVISIONS, ANY OF THE ENUMERATED IDEAS OR ANYTHING ELSE THAT IS AT ISSUE IN THE TRIAL, EXCEPT DISPOSITION. SO WHAT THAT MEANS IS THAT THE PROSECUTOR SIMPLY HAS TO SAY, "WE ARE INTRODUCING THIS FOR THE PURPOSES OF PROVING INTENT, IDENTITY, COMMON PLAN, SCHEME AND DESIGN OR ANYTHING ELSE THAT WE CAN LEGITIMATELY PROVE, AND THAT AS LONG AS THAT'S REASONABLE, IN OTHER WORDS, AS LONG AS OUR ARGUMENT IS REASONABLE AND ONE THAT A REASONABLE JURY COULD ACCEPT, THAT UNDER 1101(B), THE EVIDENCE IS ADMISSIBLE." THAT IS WHY I CHARACTERIZE 1101(B) AS BEING A MERE RELEVANCY TEST. NOW, AS SUPPORT FOR THAT PROVISION, OTHER THAN THE STATUTORY LANGUAGE, I ALSO WOULD CITE THE CASE THAT WAS EXTENSIVELY RELIED ON, ONE OF THE TWO CASES EXTENSIVELY RELIED ON BY THE DEFENSE YESTERDAY. THAT WAS PEOPLE VERSUS THOMAS, 20 CAL. 3D. 457 AT 465. THAT WAS A CHILD MOLESTATION CASE WHERE THE DEFENDANT MOLESTED A DAUGHTER, AND 10 YEARS EARLIER, HE HAD MOLESTED ANOTHER DAUGHTER. AND THE WAY THAT THE CASE WAS BEING CITED, YOU WOULD THINK THAT THIS WAS A VERY DAMAGING CASE TO THE PROSECUTION ON THE ISSUE OF THE ADMISSIBILITY OF EVIDENCE. BUT IN REALITY, WHAT THEY DID IS THAT THEY SET FORWARD A STANDARD EXPLAINING 1101(B) ANALYSIS THAT REALLY CLARIFIES THAT IT IS AN ISSUE OF RELEVANCY, A RELEVANCY TEST. AND WHAT THEY SAID IS THAT THE STANDARD IS, QUOTE:

"WHETHER THERE IS SOME CLEAR CONNECTION BETWEEN THE PRIOR OFFENSE AND THE ONE CHARGED SO THAT IT MAY BE LOGICALLY INFERRED THAT IF THE DEFENDANT IS GUILTY OF ONE, HE MUST BE GUILTY OF THE OTHER OR, AS THE MATTER IS SOMETIMES STATED, THE OTHER OFFENSES ARE SUFFICIENTLY SIMILAR AND POSSESS A SUFFICIENTLY HIGH DEGREE OF COMMON FEATURES OF THE ACT CHARGED, THAT THEY WARRANT THE INFERENCE THAT IF THE DEFENDANT COMMITTED THE OTHER ACTS, HE COMMITTED THE ACT CHARGED," END QUOTE. NOW, IT'S A LITTLE BIT CONVOLUTED PERHAPS, BUT ALL THEY ARE SAYING HERE IS, THEY ARE SAYING THAT IF THE PRIOR CRIME WARRANTS THE INFERENCE THAT IF THE DEFENDANT COMMITTED THE PRIOR ONE, HE ALSO COMMITTED THE CHARGED CRIME, THAT IT MEETS THE TEST OF 1101. THAT SOUNDS LIKE MERE RELEVANCY. THAT SOUNDS LIKE WHAT WE HAVE TO DO IS, WE HAVE TO ESTABLISH IT'S RELEVANT TO PROVE THE DEFENDANT IS GUILTY IN THIS CASE BECAUSE WE CAN USE IT TO PROVE CERTAIN OF THE ELEMENTS OF THE CRIME IN THIS CASE.

THE COURT: ARE YOU SUGGESTING I IGNORE THE SIMILARITY LANGUAGE IN THAT PASSAGE?

MR. GOLDBERG: THE ISSUE OF SIMILARITY IS ONE THAT GOES TO RELEVANCE, LOGICAL RELEVANCE. AND NORMALLY SPEAKING, THERE IS GOING TO HAVE TO BE SOME SIMILARITY FOR THEM TO BE LOGICALLY RELEVANT. IN THE CASE OF PEOPLE VERSUS HASTON, THE ONLY SIMILARITY WAS IDENTICAL PERPETRATORS IN THE CHARGED AND UNCHARGED OFFENSE. AND PEOPLE VERSUS BEAMON, IT WAS IDENTICAL DEFENDANT AND IDENTICAL VICTIM. ZACK SAYS THE SIMILARITY OF IDENTICAL VICTIM AND IDENTICAL DEFENDANT IN AND OF ITSELF IS SUFFICIENT. SO WE ALWAYS HAVE TO APPROACH IT FROM THE STANDPOINT OF LOGICAL RELEVANCE AND ASK OURSELVES, WHAT IS IT THAT THE PROSECUTION IS TRYING TO PROVE HERE AND DOES THIS LOGICALLY PROVE THAT. AND NORMALLY SPEAKING, IF YOU APPLY THAT ANALYSIS, IN OTHER WORDS, A COMMON SENSE LOGICAL RELEVANCE ANALYSIS, THERE'S GOING TO HAVE TO BE AT LEAST SOME SIMILARITY. I THINK IF WE WANTED TO SHOW THAT THE DEFENDANT HAD PREVIOUSLY COMMITTED THE OFFENSE OF DRUNK DRIVING, HOW ON EARTH WOULD THAT MAKE IT LIKELY THAT HE COMMITTED THIS MURDER? IT HAS ABSOLUTELY NOTHING TO DO WITH IT WHATSOEVER FROM A LOGICAL, RELEVANCE STANDPOINT. BUT CLEARLY A SERIES OF OFFENSES COMMITTED AGAINST THE SAME VICTIM DO IN THIS CASE JUST AS THEY DO IN ZACK AND ZACK'S PROGENY. WHAT HAPPENED IN THOMAS BY THE WAY WAS THAT THE COURT DECIDED THAT ALTHOUGH THE PRIOR CRIME WAS TECHNICALLY RELEVANT UNDER 1101(B), BUT BECAUSE THERE WAS A 10-YEAR GAP, THE 10-YEAR GAP MADE IT SUCH THAT IT SHOULD NOT HAVE BEEN ADMITTED UNDER 352 OF THE EVIDENCE CODE. AND I WOULD ASK THE COURT TO JUST KEEP IN MIND FOR A PERIOD OF TIME THE FACTS OF THOMAS BECAUSE IT BECOMES RELEVANT WHEN WE DISCUSS PEOPLE VERSUS EWOLDT, WHICH DEALS WITH THE VERY, VERY SIMILAR FACT PATTERN AND WHICH IT WAS ANOTHER CASE THAT THE DEFENSE RELIES HEAVILY ON. AS WE SAID, PEOPLE VERSUS ZACK IS NOT THE ONLY RELATIONSHIP VIOLENCE CASE WHICH SUPPORTS THE PROSECUTION'S POSITION. I'M NOT GOING TO GO THROUGH THE PROSECUTION'S BRIEF AND GO THROUGH EACH OF THE OTHER CASES THAT WE FEEL ARE RELEVANT. I WOULD LIKE TO GO THROUGH SOME OF THE CASES WHERE IDENTITY WAS THE ISSUE IN RELATIONSHIP VIOLENCE CASES AND DISCUSS A LITTLE BIT ABOUT THOSE CASES AND WHY IT IS THAT THEY VERY CLEARLY SUPPORT THE ANALYSIS THE PROSECUTION IS PROFFERING HERE, WHICH IS THAT MOTIVE EVIDENCE IS RELEVANT TO PROVE IDENTITY AND RELATIONSHIP PROBLEMS ARE RELEVANT TO PROVE MOTIVE. THE EARLIEST CASE IS PEOPLE VERSUS ARGENTOS. IT'S A 1909 CASE. THIS DEMONSTRATES, AS MR. GORDON POINTED OUT, THAT WE HAVE ALMOST A HUNDRED YEAR HISTORY, MAYBE EVEN EARLIER BECAUSE I COULD HAVE -- WE COULD HAVE TRIED TO TRACE IT BACK EARLIER. WE DIDN'T. WE FELT THAT THAT WAS FAR ENOUGH. THAT WAS OBVIOUSLY BEFORE THE ENACTMENT OF THE EVIDENCE CODE. BUT THEY ARE APPLYING THE COMMON LAW PROVISIONS AS MR. UELMEN POINTED OUT. THE 1101(B) TYPE ANALYSIS WAS PART OF THE COMMON LAW AND HAS BEEN FOR MANY HUNDREDS OF YEARS. PEOPLE VERSUS ARGENTOS DEALT WITH THE SITUATION WHERE THERE WERE TWO GOLD PROSPECTORS AND ONE OF THE GOLD PROSPECTORS KILLED HIS BUSINESS PARTNER. SO IT IS A RELATIONSHIP CASE ONLY. IT'S DEALING WITH BUSINESS PARTNERS. EVIDENCE WAS INTRODUCED THAT THE DEFENDANT IN THAT CASE HAD BEEN ARRESTED FOR A CRIME. THE SUPREME COURT DID NOT TELL US WHAT THE CRIME WAS IN THEIR RECITATION OF FACTS. HE -- THE BUSINESS PARTNER, THE VICTIM ARRANGED FOR A BOND FORUM ON THAT CRIME AND DEMANDED REPAYMENT. SO IT'S SIGNIFICANT FROM A COUPLE PERSPECTIVES. NUMBER ONE, IT SHOWS ECONOMIC FRICTION AS BEING THE BASIS FOR MOTIVE EVIDENCE IN A RELATIONSHIP CONTEXT AS MS. BODIN SAID. BUT MORE IMPORTANTLY, HERE IS WHAT THE CALIFORNIA SUPREME COURT SAID WHERE THE ISSUE IS IDENTITY. THEY SAID:

"PROOF OF SOME OTHER CRIME MAY BE GIVEN WHERE IT TENDS TO SHOW MOTIVE FOR THE HOMICIDE IN QUESTION. IN CASES WHERE THE IDENTITY OF THE PERSON WHO COMMITS A CRIME IS ATTEMPTED TO BE PROVEN BY CIRCUMSTANTIAL EVIDENCE, EVIDENCE OF MOTIVE ON THE PART OF THE DEFENDANT CHARGED IS ALWAYS A SUBJECT OF PROOF AND THE FACT OF MOTIVE PARTICULARLY MATERIAL." SO AGAIN, THIS IS PRECISELY THE RULE THAT WE ARE ASKING THE COURT TO APPLY THAT WE CAN TRACE ALL THE WAY BACK TO 1909. WE WANT TO PROVE FRICTION. WE WANT TO PROVE PROBLEMS IN THE RELATIONSHIP. WE WANT TO PROVE A PATTERN OF ABUSIVE CONTROL BECAUSE THAT PROVES MOTIVE WHICH, IN THE SUPREME COURT'S WORDS, IS ALWAYS RELEVANT FOR THE PURPOSES OF ESTABLISHING IDENTITY. NOW, THE NEXT IDENTITY CASE THAT WE HAVE IN THE CONTEXT OF RELATIONSHIP VIOLENCE IS PEOPLE VERSUS MULLEN. THAT WAS A 1953 CASE AND DECIDED IN 1953. AND IN THAT CASE, THE DEFENDANT WAS ROMANTICALLY INTERESTED IN A FELLOW PRISONER. HE WAS INCARCERATED AT THE TIME. AND THE VICTIM IN THAT CASE HE PERCEIVED TO BE INTERFERING WITH THAT RELATIONSHIP. SO THIS IS A JEALOUSY CASE AND AN OBSESSION TYPE CASE, AS MS. BODIN ARGUED. AND THERE THE ISSUE WAS IDENTITY, WHO COMMITTED THE CRIME. AND THE COURT SAID:

"ANTAGONISM OR ENMITY BETWEEN A DEFENDANT AND THE VICTIM OF AN ASSAULT IS ADMITTEDLY RELEVANT TO THE ISSUE OF DEFENDANT'S IDENTITY AS THE ASSAILANT." SO THIS IS TELLING US THAT IN THE CONTEXT OF RELATIONSHIPS, WHERE THERE'S RELATIONSHIP BETWEEN THE DEFENDANT AND THE VICTIM, THE EVIDENCE OF ANTAGONISM, ENMITY IS RELEVANT, IS ADMISSIBLE TO PROVE IDENTITY. NEXT WE HAVE PEOPLE VERSUS HELFEND, WHICH WAS A CASE WHERE THE DEFENDANT MURDERED HIS FORMER WIFE'S HUSBAND BECAUSE OF JEALOUSY WITH RESPECT TO THE WIFE APPARENTLY. AND FOUR YEARS EARLIER, THERE WERE CERTAIN ACTS OF PROPERTY DESTRUCTION. SPECIFICALLY HE HAD BURNED DOWN THE VICTIM'S HOUSE. SO AGAIN, TALKING ABOUT PROPERTY DESTRUCTION. THERE WERE ALSO OTHER TYPES OF EVIDENCE SHOWING ANTAGONISM BETWEEN THE DEFENDANT AND THE VICTIM AND THE JEALOUSY THAT EXISTED IN THAT RELATIONSHIP, AND THE COURT AGAIN HELD THAT THE EVIDENCE CAME IN. AND THEN FINALLY, PEOPLE VERSUS DANIELS WHICH WAS CITED PROMINENTLY BY THE ZACK COURT WHERE THE DEFENDANT TRIED TO -- IT WAS AN ATTEMPTED MURDER CASE ACTUALLY WHERE THE DEFENDANT TRIED TO KILL HIS SPOUSE WITH A BOMB BY BLOWING HER UP. AND THERE THEY WANTED TO INTRODUCE EVIDENCE OF PRIOR QUARRELING AND PRIOR PROBLEMS IN THE RELATIONSHIP WHICH INCLUDED PHYSICAL VIOLENCE. AND THE PHYSICAL VIOLENCE AMOUNTED TO SIMPLE ASSAULTS. AND I'M SURE THAT IF MR. UELMEN WERE ARGUING THAT, HE WOULD SAY, "MY HEAVENS, WHAT ON EARTH DOES A SIMPLE ASSAULT HAVE TO DO WITH BLOWING SOMEONE UP? I MEAN THERE'S ABSOLUTELY NO SIMILARITY AT ALL THERE." BUT THE COURT SAID, QUOTE:

"IT IS ELEMENTARY, EVIDENCE OF MOTIVE TO COMMIT AN OFFENSE IS EVIDENCE OF THE IDENTITY OF THE OFFENDER.

"EVIDENCE SHOWING JEALOUSY, QUARRELS, ANTAGONISM OR ENMITY BETWEEN THE ACCUSED AND THE VICTIM OF A VIOLENT OFFENSE IS PROOF OF MOTIVE TO COMMIT THE OFFENSE," END QUOTE. SO WE HAVE MANY CASES WHICH HOLD THAT WE CAN INTRODUCE EVIDENCE FOR THE PURPOSES OF SHOWING IDENTITY, INCLUDING OF COURSE PEOPLE VERSUS ZACK EVEN UNDER A TRADITIONAL 1101(B) ANALYSIS. AND THESE CASES DO NOT INVOLVE SITUATIONS WHERE THE OTHER KINDS OF ACTS OF ABUSE NECESSARILY INVOLVE SIMILARITIES WITH THE CHARGED ACT AT ALL OTHER THAN THEY WERE DIRECTED AGAINST THE SAME VICTIM. NOW, THE SECOND 1101(B) THEORY THAT THE PROSECUTION HAS PRESENTED IS THAT THIS EVIDENCE IS ADMISSIBLE FOR THE PURPOSES OF PROVING MOTIVE WHICH IN TURN PROVES INTENT. AND COUNSEL SEEMED TO ARGUE THAT THE PROSECUTION IS ONLY ALLOWED TO USE THIS THEORY, IF I WAS UNDERSTANDING HIS ARGUMENT YESTERDAY, IF WE -- THEY HAVE CONCEDED THAT THE DEFENDANT COMMITTED THE CRIME AND THE ONLY ISSUE IS INTENT. THAT IS NOT TRUE. THE PROSECUTION BEARS THE BURDEN OF PROVING EVERY ELEMENT OF OUR OFFENSE. THERE ARE TWO CASES THAT CLARIFY THAT THAT IS IN FACT THE RULE. ONE IS PEOPLE VERSUS DANIELS, THAT'S 52 CAL. 3D. 815, WHERE THE SUPREME COURT SAID THAT THE DEFENDANT'S PLEA OF NOT GUILTY PUTS IN TO ISSUE ALL OF THE ELEMENTS OF THE OFFENSE AND THAT THE PROSECUTION IS ALLOWED TO INTRODUCE UNCHARGED MISCONDUCT FOR THE PURPOSES OF PROVING INTENT EVEN THOUGH THE DEFENSE HASN'T SPECIFICALLY IN SOME WAY STATED THAT THAT IS THE ONLY ISSUE INVOLVED IN THE CASE BECAUSE WE HAVE TO PROVE EVERY ELEMENT OF THE OFFENSE. THE SAME EXACT OBSERVATION WAS MADE BY THE UNITED STATES SUPREME COURT IN ESTELLE VERSUS MC GUIRE, WHICH I'LL ADDRESS IN A CONTEXT OF A DUE PROCESS ARGUMENT THAT THE DEFENSE MADE. THE CASE THAT WE BELIEVE IS MOST INSTRUCTIVE ON THE INTENT ISSUE -- BECAUSE WHAT YOUR HONOR MAY BE WONDERING IS, WELL, WE HAVE THESE AUTOPSY PHOTOGRAPHS, WE HAVE THE CRIME SCENE PHOTOGRAPHS. THEY VERY CLEARLY PORTRAY THAT THERE WAS A FIXED PURPOSE, FULL INTENT TO KILL, WHERE THE DEFENDANT LITERALLY WENT FOR THE JUGULAR IN THIS CASE. WHY DO WE NEED FURTHER EVIDENCE OF INTENT? AND WHAT I WOULD POINT OUT TO YOUR HONOR IS THE LAW THAT WE APPLY IN THE STATE OF CALIFORNIA WITH RESPECT TO PREMEDITATION BECAUSE THAT'S PRIMARILY WHERE THIS BECOMES AN ISSUE. AS YOUR HONOR KNOWS, FOR THE PURPOSES OF 1118 MOTION, FOR THE PURPOSES OF APPEAL, FOR THE PURPOSES OF A NEW TRIAL MOTION, ALTHOUGH THE JURY ISN'T INSTRUCTED ON THIS, THERE IS A THREE-PART TEST THAT WE USE IN CALIFORNIA FOR THE PURPOSES OF PREMEDITATION THAT WAS ESTABLISHED BY THE SUPREME COURT IN ANDERSON. THAT THREE-PART TEST IS THAT WE HAVE TO SHOW PLANNING ACTIVITY. WE HAVE TO SHOW MOTIVE. THAT'S THE SECOND. AND THEN THIRD, WE HAVE TO SHOW SOMETHING ABOUT THE MANNER OF THE KILLING AS INFERRED FROM THE CRIME ITSELF. NOW, THIS TEST WAS APPLIED BY THE CALIFORNIA SUPREME COURT AGAIN IN THE CASE OF PEOPLE VERSUS NICHOLAS, WHICH IS INSTRUCTIVE BECAUSE THIS IS A RELATIONSHIP VIOLENCE CASE, NICHOLAS. AND IN THAT, THE DEFENDANT KILLED HIS EX-WIFE AND THERE WAS EVIDENCE OF A BITTER AND LONG-STANDING GRUDGE THAT EXISTED BETWEEN THE TWO. IT INCLUDED WHAT COULD BE CHARACTERIZED AS STALKING EVIDENCE. IN ONE OF THE INSTANCES, THE VICTIM WAS AT A LAUNDROMAT, AND THE DEFENDANT SHOWED UP UNEXPECTEDLY, SIMILAR TO MANY OF THE INSTANCES IN OUR CASE, AND JUST STARED AT HER THROUGH THE WINDOWS OF THE LAUNDROMAT. CALIFORNIA SUPREME COURT -- BY THE WAY, THIS IS A 1991 CASE -- SAID THAT ALL OF THIS EVIDENCE WAS NOT ONLY ADMISSIBLE, BUT NECESSARY. AND HERE'S WHAT THEY SAID IN APPLYING THEIR ANALYSIS. THEY TALKED ABOUT HOW UNDER ANDERSON WE HAVE TO PROVE THESE THREE ELEMENTS. AND HERE'S WHAT THEY SAID ABOUT THE SECOND ELEMENT. THIS IS THE MOTIVE ELEMENT, YOUR HONOR. THEY SAID THAT THE PROSECUTION HAD TO PROVE -- THIS IS HAD TO PROVE," QUOTE:

"HIS MOTIVE TO KILL AS GLEANED FROM HIS PRIOR RELATIONSHIP OR CONDUCT WITH THE VICTIM," END QUOTE. SO THAT'S NOT SAYING ANY LONGER THAT THIS IS SOMETHING THAT THE PROSECUTION IS ENTITLED TO PROVE OR IS ALLOWED TO PROVE OR IS HELPFUL IF WE CAN PROVE THIS. THEY'RE SAYING WE HAVE TO PROVE THIS. WE ARE GOING TO HAVE TO, FOR THE PURPOSES OF ESTABLISHING ONE OF THE ELEMENTS OF THIS THREE-PRONG TEST, PUT IN EVIDENCE OF THE RELATIONSHIP OR CONDUCT WITH THE VICTIM IN ORDER TO GLEAN MOTIVE. THAT IS A RECENT PRONOUNCEMENT BY OUR CALIFORNIA SUPREME COURT, WHICH MAKES THIS EVIDENCE NOT ONLY ADMISSIBLE, BUT MANDATORY. AND TO EXCLUDE THIS EVIDENCE, YOUR HONOR, WOULD BE ESSENTIALLY TO CONVERT EVIDENCE CODE SECTION 1101(B) FROM A SHIELD INTO A SWORD BECAUSE IT WOULD BE -- TO CONVERT EVIDENCE CODE SECTION 1101(B) AND THAT FORUM OF ANALYSIS FROM THE NORMAL ANALYSIS THAT IS DESIGNED TO PRECLUDE IRRELEVANT EVIDENCE THAT WOULD CAUSE THE JURY TO VOTE GUILTY FOR AN IMPROPER REASON AND INTO A SWORD WHICH WOULD DEPRIVE AFFIRMATIVELY THE PROSECUTION OF ESTABLISHING WHAT IS AN ESSENTIAL ELEMENT OF OUR CASE, SOMETHING THAT WE HAVE TO PROVE. AND FOR THAT REASON, YOUR HONOR, WE SUGGEST THAT THIS EVIDENCE CLEARLY IS ADMISSIBLE TO ESTABLISH INTENT. NOW, THAT BRINGS ME TO THE THIRD PART OF THE 1101(B) ANALYSIS. AND THAT'S PRIOR COMMON PLAN, SCHEME AND DESIGN. AND I'M GOING TO RELY ON ONE CASE FOR THAT. THAT'S PEOPLE VERSUS EWOLDT. IT IS THE SAME CASE THAT AGAIN WAS RELIED ON EXTENSIVELY BY COUNSEL YESTERDAY. AS I SAID, IT'S FACTUALLY SIMILAR TO THOMAS IN THE SENSE THAT IT'S A CHILD MOLESTATION CASE. I SUPPOSE IN SOME SENSE, YOU COULD CONSIDER IT TO BE A RELATIONSHIP TYPE OF A CASE ALTHOUGH IT'S IN A SEXUAL ASSAULT CONTEXT. AND THE PROSECUTION WANTED TO INTRODUCE EVIDENCE THAT THE DEFENDANT HAD 12 YEARS, ACCORDING TO MY CALCULATIONS, EARLIER MOLESTED ANOTHER DAUGHTER WHO WAS SEPARATED IN AGE FROM THE CHARGED VICTIM. HE WAS NEVER TRIED FOR THOSE EVENTS. HE WAS NEVER CONVICTED FOR THE EARLIER CRIME. NOW, THIS CASE IS VERY INTERESTING AND IT'S VERY CURIOUS THAT COUNSEL NOT ONLY CITED BUT RELIED ON IT SO PROMINENTLY, BECAUSE THIS IS ONE OF THOSE CASES THAT'S KEPT IN THE PROSECUTION'S TREASURE TROVE OF FAVORITE CASES TO PULL OUT WHEN WE'RE TALKING ABOUT 1101(B) ANALYSIS. IT'S PROBABLY A BAD CHOICE TACTICALLY ON THE PART OF THE DEFENSE TO HAVE RELIED SO HEAVILY ON THIS CASE BECAUSE QUITE FRANKLY, WHEN I FIRST LOOKED AT THE CASE WHEN IT CAME OUT QUITE RECENTLY, WHAT THEY HAVE DONE IS, THEY'VE SIGNIFICANTLY CHANGED CALIFORNIA LAW ON 1101(B) EVIDENCE AND THEY HAVE CREATED THIS WHOLE NEW THEORY OF ADMISSIBILITY, THAT BEING COMMON PLAN, SCHEME AND DESIGN IN A WAY THAT DID NOT EXIST PRIOR TO EWOLDT. AND THEY SPECIFICALLY SAID THAT. AND WHAT THEY SAID IS, THEY SAID EVEN IF IDENTITY ISN'T AN ISSUE, EVEN IF INTENT ISN'T AN ISSUE, YOU STILL CAN INTRODUCE EVIDENCE ON COMMON PLAN, SCHEME AND DESIGN BECAUSE IT IS A THIRD INDEPENDENT THEORY. PRIOR TO EWOLDT, WE WERE UNDER THE IMPRESSION THAT WE COULD ONLY GET COMMON PLAN, SCHEME AND DESIGN EVIDENCE IF IT WAS DIRECTLY RELEVANT TO PROVE IDENTITY OR INTENT. SUPREME COURT SAYS NO, THAT'S WRONG. YOU CAN GET THIS IN AS A THIRD INDEPENDENT THEORY THAT STANDS ON ITS OWN INDEPENDENT OF THE OTHERS. NOW, COUNSEL SEEMS TO BE CITING EWOLDT -- IF AGAIN, I'M UNDERSTANDING HIS ARGUMENT -- FOR THE PROPOSITION THAT WE HAVE TO SHOW THAT ALL OF THE INCIDENTS WERE A PLAN IN THE SENSE THAT WE WOULD HAVE TO SHOW THAT WHEN THE DEFENDANT FIRST STARTED TO ABUSE NICOLE SIMPSON IN '77, '78, WHICH IS ONE OF OUR FIRST ACTS, THAT IN HIS MIND, HE THOUGHT TO HIMSELF, "WELL, YOU KNOW, GEE, I THINK I'M GOING TO START ABUSING HER NOW." AND THEN SOMETIME AROUND 1989, "I THINK WE'RE GOING TO HAVE A KNOCK-DOWN DRAG-OUT INCIDENT THAT WILL RESULT IN HER CALLING THE POLICE AND RUNNING OUT OF THE HOUSE WITH HER CLOTHES TORN OFF." AND THEN AROUND DECEMBER OF '93, "I THINK I'LL BARGE DOWN -- BREAK DOWN THE DOOR TO HER HOME AND HER BEDROOM DOOR AND CAUSE HER TO CALL 911." AND THEN AROUND THE MIDDLE OF '94, "I THINK I'LL KILL HER." THAT IS CLEARLY NOT THE SENSE IN WHICH COMMON PLAN, SCHEME AND DESIGN IS USED BY THE COURTS, AND WE WERE TOLD THAT VERY CLEARLY IN EWOLDT BECAUSE HERE'S WHAT THEY SAID. EWOLDT, AS THE COURT IS PROBABLY AWARE, OVERRULED THE CASE OF PEOPLE VERSUS TASSEL, WHICH WAS A PROBLEMATIC CASE IN THE AREA OF 1101(B) EVIDENCE. AND WHAT THEY SAID ABOUT TASSEL WAS, THEY SAID THAT TASSEL WAS BASED UPON, QUOTE:

"THE ERRONEOUS PREMISE THAT A COMMON DESIGN OR PLAN CANNOT BE ESTABLISHED UNLESS ALL OF THESE ACTS ARE PART OF THE SINGLE CONTINUING CONCEPTION OR PLOT," END QUOTE. THEY ARE MAKING IT CRYSTAL CLEAR THAT WE DO NOT HAVE TO PROVE THAT WHEN THE DEFENDANT STARTED THE ACTS OF ABUSE, HE HAD CONTEMPLATED THAT THEY WERE ALL GOING TO BE SOMETHING THAT WOULD EVENTUALLY LEAD UP TO THE MURDER OF THE VICTIM. RATHER, WHAT THE COURT SAYS IN EWOLDT -- AND THIS IS AT PAGE 403. THEY SAY THAT RATHER, THE TERM SIMPLY MEANS THAT, QUOTE:

"RATHER THAN A SERIES OF SIMILAR SPONTANEOUS ACTS," END QUOTE, WE MUST SHOW A COMMON DESIGN. SO THE ISSUE IS, ARE THESE A SERIES OF SPONTANEOUS ACTS? IS IT A COINCIDENCE THAT HE JUST HAPPENED TO HAVE COMMITTED THE INCIDENTS IN 1987, '88 THAT IS TOTALLY UNRELATED TO THE 1989, THAT HAS NOTHING TO DO WITH THE 1993, HAS NOTHING TO DO WHATSOEVER WITH THE MURDER? ARE THEY JUST A SERIES OF SPONTANEOUS DISCONNECTED ACTS OR RATHER, WERE THEY ALL COMMITTED WITH THE SAME DESIGN IN MIND?

THE COURT: HOW DO YOU PLAN ON CONVEYING THAT COMMON SCHEME AND DESIGN THEORY TO THE JURY?

MR. GOLDBERG: WELL, THERE ARE A COUPLE WAYS OF DOING IT. A LOT OF THAT IS GOING TO BE ADDRESSED BY MR. GORDON. ONE OF THE THINGS THAT WE DID IN OUR --

THE COURT: YOU MEAN THERE'S MORE?

MR. GOLDBERG: YES. THERE WAS A LITTLE MORE, IF THE COURT WOULD ALLOW. WE USED THE POWER OF CONTROL WHEEL IN OUR POINTS AND AUTHORITIES, AND THAT'S GOING TO BE EXPLAINED IN SOME MORE DETAIL, YOUR HONOR. BUT AT THE HEART OF THE WHEEL IS THE IDEA OF POWER AND CONTROL. THE SPOKES RADIATING OUT FROM THAT WHEEL DEAL WITH A LARGE NUMBER OF DIFFERENT KINDS OF INSTANCES, THE SAME KINDS OF INSTANCES --

THE COURT: I THINK -- LET ME BE A LITTLE MORE DIRECT THEN IN MY QUESTION. IS THIS SORT OF A BACK DOOR WAY THEN TO BRING IN BATTERED WOMAN'S SYNDROME IN THE TOTALITY OF WHAT WE'RE TALKING ABOUT HERE?

MR. GOLDBERG: IT DOESN'T NECESSARILY HAVE TO BE, YOUR HONOR, BECAUSE WHAT IS INTERESTING IS THAT IF WE TRACE THE CASE LAW AS WE DID AND AS MS. BODIN DID -- AND WE CAN TRACE IT BACK LONG BEFORE A LOT OF THESE STUDIES AND THE EMPIRICAL EVIDENCE EVEN EXISTED -- THEY WERE STILL ALLOWING IN THIS KIND OF EVIDENCE. AND I DON'T KNOW IF THEY CALLED IT POWER AND CONTROL PER SE. I DON'T KNOW IF THEY WERE NECESSARILY AS SOPHISTICATED AND PRECISE AS WE ARE PERHAPS TODAY. THEY TALKED ABOUT JEALOUSY, QUARREL, ENMITY, ANTAGONISM, THEY TALKED ABOUT ASSAULTS. BUT THEY SAID THAT THIS COMES IN FOR THE PURPOSES OF SHOWING WHAT THE RELATIONSHIP IS. AND THAT WAS EVEN BEFORE THEY HAD THIS KIND OF EMPIRICAL RESEARCH. SO WE CAN USE COMMON SENSE AS WELL AS EMPIRICAL RESEARCH.

THE COURT: BUT HOW DO I DEAL WITH THE PROSCRIPTION, THE EXCLUSION IN 1107?

MR. GOLDBERG: AGAIN, AS I SAID, THAT'S AN 1107 ARGUMENT. WHAT I'M SAYING IS, EVEN WITHOUT 1107, IT STILL COMES IN. WE COULD ARGUE COMMON SENSE. WE CAN SAY, LADIES AND GENTLEMEN OF THE JURY, LOOK AT THE FACTS. LOOK AT WHAT HAPPENED HERE. THIS IS A PATTERN OF ACTIVITIES. THEY ARE NOT SPONTANEOUS INSTANCES. THEY ARE DIRECTED TOWARDS A PARTICULAR GOAL. THEY HAVE A PARTICULAR THEME IN MIND THAT RUNS THROUGHOUT THEM. AND THEY CAN USE THEIR COMMON SENSE FOR THE PURPOSES OF ANALYZING IT. I'M NOT SAYING AN EXPERT WOULDN'T BE HELPFUL AT ALL. I THINK THAT IT WOULD BE. AND THE ISSUE OF EXPERT TESTIMONY IS AGAIN SOMETHING THAT MR. GORDON WILL ADDRESS. BUT THE POINT IS THAT EVEN WITHOUT EXPERT TESTIMONY, WHAT THESE CASES DEMONSTRATE IS THAT WE CAN STILL USE COMMON SENSE FOR THE PURPOSES OF ALLOWING THIS EVIDENCE IN. AND I SHOULD ADD, YOUR HONOR, THAT IN THE EWOLDT CASE, I DON'T BELIEVE THERE WAS EXPERT TESTIMONY THAT WAS INTRODUCED FOR THE PURPOSES OF ALLOWING THIS COMMON PLAN, SCHEME AND DESIGN EVIDENCE IN.

THE COURT: WELL, NO. THE REASON FOR MY CONCERN THOUGH IS THAT 1107 SAYS THAT YOU CAN'T USE THE EXPERT TESTIMONY REGARDING BATTERED WOMAN'S SYNDROME IN A PARTICULAR SITUATION THAT WE MAY BE BACK-DOORING INTO HERE. THAT'S MY CONCERN, IS WHERE YOUR ARGUMENT IS GOING.

MR. GOLDBERG: I AM SORRY. IS YOUR HONOR -- IF I'M UNDERSTANDING WHAT THE COURT IS SAYING, THAT IF WE CAN'T CALL THE EXPERT, WE CAN'T EVEN MAKE THE ARGUMENT WITHOUT THE EXPERT?

THE COURT: NO. I'M JUST ASKING YOU, HOW CAN YOU MAKE THE ARGUMENT WITHOUT HAVING AN EXPERT FOUNDATION FOR THIS IS WHAT IT IS?

MR. GOLDBERG: BECAUSE I THINK YOU CAN ARGUE --

THE COURT: IT'S A PRACTICAL QUESTION THAT I'M ASKING YOU. THAT WHAT YOU'RE SAYING WILL NOT MAKE ANY SENSE UNLESS YOU CAN PUT IT INTO THE BATTERED WOMAN'S SYNDROME CONTEXT. BUT I HAVE TO DEAL WITH THE 1107 PROSCRIPTION.

MR. GOLDBERG: YEAH.

THE COURT: SO TO TELL ME THAT ONE THING MAKES COMMON SENSE DOESN'T TELL ME HOW I GET AROUND 1107, THE LAST -- 1107(A), THE LAST PHRASE.

MR. GOLDBERG: WELL, NO. WHAT I AM SAYING, YOUR HONOR, LET'S SAY -- AND I HOPE THE COURT WILL NOT DO THAT AND WE BELIEVE THE COURT WILL NOT EXCLUDE EXPERT TESTIMONY. BUT LET'S SAY THAT THE COURT FOR SOME REASON WOULD NOT ALLOW US TO PUT ON EXPERT TESTIMONY AS TO THE CHARACTERISTICS OF A BATTERED -- OF A RELATIONSHIP INVOLVING A BATTERED WOMAN BECAUSE YOU FELT THAT THAT CAME UNDER THE PROSCRIPTION. ISN'T IT STILL POSSIBLE TO ARGUE THAT WE HAVE A LOT OF EVIDENCE TO SHOW THAT THE DEFENDANT WAS A VERY JEALOUS AND POSSESSIVE MAN? THEY ARGUED THAT IN DE MOSS. DE MOSS WAS AN EARLY CASE. THEY DIDN'T USE EXPERT TESTIMONY THERE. THEY DIDN'T HAVE THIS TESTIMONY THERE. IN THAT CASE, THE DEFENDANT ALSO MADE COMMENTS TO THE EFFECT OF, "IF I CAN'T HAVE HER, NO ONE WILL." THESE ARE COMMENTS THAT A JURY CAN UNDERSTAND EVEN IF AN EXPERT DOESN'T EXPLAIN THEM. WE CALL IT ESTRANGEMENT. WE USE NEW LABELS NOW THAT COME FROM THE EMPIRICAL LITERATURE AND THE SCIENTIFIC LITERATURE. BUT EVERYONE UNDERSTANDS THE CONCEPT OF, "IF I CAN'T HAVE HER, NO ONE WILL." WE SAY IT IS ESTRANGEMENT NOW, BUT YOU CAN UNDERSTAND IT ON A COMMON SENSE LEVEL. YOU CAN UNDERSTAND THAT THIS WAS A MAN WHO HAD THE ABSOLUTE NEED TO CONTROL THIS WOMAN IN EVERY ASPECT OF HER LIFE. YOU CAN UNDERSTAND THAT THIS IS A MAN WHO WAS VERY ABUSIVE TOWARDS THIS WOMAN WITHOUT AN EXPERT AND YOU CAN UNDERSTAND WHEN IT FINALLY BECAME APPARENT TO HIM THAT HE WAS GOING TO LOSE HER, THAT EVERYTHING THAT HE HAD DONE IN THE PAST THAT HAD WORKED FOR THE PURPOSES OF CONTROLLING HER, THAT HAD KEPT HER WITH HIM, THAT HAD PREVENTED HER FROM LEAVING WAS NO LONGER WORKING. AND AROUND THE TIME THAT SHE SENT THAT MESSAGE TO SOJOURN, AROUND THE TIME THAT SHE MADE THE COMMENTS THAT MADE IT CLEAR, "I AM FINALLY GOING TO CUT OFF THIS RELATIONSHIP," A JURY CAN UNDERSTAND THAT HIS ONLY -- THE ONLY THING THAT WAS LEFT FOR HIM TO DO AT THAT POINT WAS TO KILL HER. I MEAN HE HAD TRIED EVERYTHING ELSE. HE HAD TRIED EVERYTHING THAT COMMON SENSE WOULD INDICATE THAT YOU CAN DO TO CONTROL SOMEONE. HE TRIED TO TAKE AWAY HER SENSE OF PERSONAL DIGNITY THROUGH THE BELITTLEMENT, THROUGH THE NAME CALLING. HE TOOK AWAY HER SENSE OF FINANCIAL SECURITY THROUGH THE IRS LETTER. HE TOOK AWAY HER SENSE OF PHYSICAL SECURITY THROUGH THE ABUSE AND THE VIOLENCE. AND THEN WHEN THERE WASN'T ANYTHING ELSE THAT HE COULD THINK OF TO TAKE AWAY FROM HER, HE TOOK AWAY HER LIFE. AND I BELIEVE THAT THAT IS THE KIND OF A FACT PATTERN THAT A JURY CAN UNDERSTAND AND CAN APPRECIATE. THEY DO HAVE TO BRING THEIR OWN LIFE EXPERIENCES AND THEIR COLLECTIVE EXPERIENCES TO BEAR ON A CASE LIKE THIS, THE COMMUNITY WISDOM. I THINK WHEN YOU DO THAT -- WHEN THEY DO THAT, THEY CAN UNDERSTAND THE EVIDENCE. I'M NOT SAYING THAT EXPERT TESTIMONY WOULD BE INSTRUCTIVE OR RELEVANT. I THINK IT WOULD. MR. GORDON IS GOING TO DISCUSS THAT FURTHER. I'M SIMPLY SAYING THAT IT'S NOT ABSOLUTELY NECESSARY. YOUR HONOR, I'D INTENDED NOW TO SWITCH TO THE ISSUE OF DUE PROCESS, WHICH ISN'T GOING TO TAKE ME VERY LONG, AND I MAY GET INTO 352 UNLESS THE COURT HAD SOME FURTHER QUESTIONS BEFORE WE LEFT COMMON PLAN, SCHEME AND DESIGN.

THE COURT: NO, THANK YOU. I'M FAMILIAR WITH EWOLDT, JUSTICE GEORGE'S OPINION.

MR. GOLDBERG: THANK YOU. NOW, THE ISSUE OF DUE PROCESS I DON'T WANT TO SPEND A LOT OF TIME ON BECAUSE COUNSEL DIDN'T ARGUE IT EXTENSIBLY. WE BELIEVE THAT THE MATTER IS ABSOLUTELY CONVINCINGLY DISPOSED OF IN ESTELLE VERSUS MC GUIRE. THAT'S A UNITED STATES SUPREME COURT CASE WHICH, INTERESTINGLY ENOUGH, IS A RELATIONSHIP VIOLENCE CASE IN THE SENSE THAT THE DEFENDANT WAS CHARGED WITH THE MURDER OF HIS INFANT CHILD. THERE WAS TESTIMONY VERY SIMILAR TO THE TESTIMONY THAT WE HEARD HERE TODAY FROM A NEIGHBOR THAT HEARD -- OVERHEARD THE TYPES OF ACTIVITIES THAT SHE ASSOCIATED WITH ABUSING THE CHILD. IT WASN'T DESCRIBED IN THAT MUCH DETAIL BY THE SUPREME COURT, UNITED STATES SUPREME COURT. THERE WAS EVIDENCE IN THAT CASE THAT THE CHILD HAD SUFFERED A SEVEN-WEEK OLD RIB FRACTURE AND A SIX-WEEK OLD RECTAL TEAR. AND ALL OF THAT WAS INTRODUCED UNDER CALIFORNIA LAW. IT ORIGINATED IN CALIFORNIA FOR THE PURPOSES OF DEMONSTRATING UNDER 1101(B) THE IDENTITY OF THE PERPETRATOR BECAUSE THE QUESTION WAS, WHO COMMITTED THIS CRIME, PERPETRATED THIS CRIME ON THIS CHILD. AND THE UNITED STATES SUPREME COURT SAYS BASICALLY, "ONCE THE EVIDENCE HAS COME IN UNDER STATE EVIDENTIARY PROVISION, WE ARE NOT GOING TO REEVALUATE IT UNDER THE DUE PROCESS CLAUSE. THAT'S IT." ONCE IT IS DETERMINED TO BE RELEVANT UNDER EVIDENCE CODE SECTION 1101(B), OUR ANALYSIS IS FINISHED. THERE IS NO DUE PROCESS ANALYSIS, WHICH MEANS THAT THE ONLY CONCERNS THAT ARE IN FRONT OF YOUR HONOR LEGALLY SPEAKING ARE CALIFORNIA EVIDENTIARY LAW; IN OTHER WORDS, THE RELATIONSHIP VIOLENCE CASES AND 1101(B) AND THEN 352. AND ONCE YOUR HONOR DISPOSES OF THOSE ISSUES, THERE IS NO INDEPENDENT DUE PROCESS ARGUMENT. AND MC GUIRE MAKES THAT VERY CLEAR.

THE COURT: WELL, IT'S PROBABLY ALSO BECAUSE FEDERAL RULES 403 AND 404 ARE VIRTUALLY CARBON COPIES OF CALIFORNIA'S.

MR. GOLDBERG: THAT'S CORRECT. FINALLY, EVIDENCE CODE SECTION 352. THERE WERE SEVERAL 352 ARGUMENTS THAT WERE MADE BY COUNSEL. I AGAIN POINT BACK TO THE STATUTE ITSELF, 352, BECAUSE WE TEND TO USE SHORTHAND TERMS TO DESCRIBE IT. AND SOMETIMES WE HEAR ATTORNEYS SAYING MORE PREJUDICIAL THAN PROBATIVE. I BELIEVE I HEARD MR. UELMEN USING THE PHRASE JUST PREJUDICIAL. HE CUT OUT THE PROBATIVE PART ALTOGETHER. BUT THAT IS NOT WHAT THE STATUTE SAYS. I MEAN, BOTH ARE MISSTATEMENTS. IT SAYS THAT IT'S GOT TO BE SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE. AND I CALL THE COURT'S ATTENTION AND RELY ON THAT WORD "SUBSTANTIALLY" BECAUSE IT'S IMPORTANT WHENEVER WE'RE ENGAGING IN 352 ANALYSIS, BECAUSE WHAT THAT MEANS IS THAT IF IT'S A CLOSE CASE, PROSECUTION WINS. OR EVEN IF WE WERE TO IMAGINE -- AND I'M NOT SUGGESTING THIS IS THE CASE. IT VERY CLEARLY ISN'T. IF THE COURT WERE OF THE MIND SET IT'S SLIGHTLY MORE PREJUDICIAL THAN PROBATIVE, WE STILL WIN BECAUSE UNLESS IT'S SUBSTANTIALLY MORE PREJUDICIAL THAN PROBATIVE, IT IS NOT EXCLUDABLE UNDER 352. I WANTED TO DIGRESS FOR JUST ONE SECOND IN THE 352 ARGUMENT, AND THAT WAS TO MENTION THE CHART THAT WE PREPARED FOR YOUR HONOR TODAY. YOUR HONOR DIRECTED US TO PREPARE SOMETHING IN WRITING THAT SYNTHESIZED THE EVIDENCE. AS MS. BODIN POINTED OUT AT THE VERY, VERY BEGINNING OF HER ANALYSIS AND I BELIEVE MR. GORDON MAY HAVE -- I'M NOT POSITIVE -- ALL OF THE ITEMS THAT WERE CONTAINED IN THE DOCUMENT OF THE PROSECUTION'S BRIEF, WE DID NOT TAKE THE POSITION THAT ALL OF THEM WERE ADMISSIBLE IN OUR CASE IN CHIEF. WE SAID WE UNDERSTAND THAT IS NOT THE CASE. THEY MAY BE ADMISSIBLE FOR OTHER PURPOSES, AND THAT WE WANTED TO TAKE THIS AS AN OPPORTUNITY TO FIRST LAY OUT EVERYTHING THAT WE KNEW ABOUT THE RELATIONSHIP AND WE ALSO WANTED TO TAKE THE OPPORTUNITY TO PUT THE DEFENDANT ON NOTICE TO A CERTAIN EXTENT AS TO THE KINDS OF EVIDENCE THAT WE WERE SEEKING TO INTRODUCE AND ALSO BECAUSE THIS MIGHT COME UP IN SOME OTHER CONTEXT. WHAT WE WERE DIRECTED TO DO -- AND WE WERE ALL VERY TIRED LAST NIGHT AFTER THE EVENTS IN COURT AND WE WERE WORKING ON THIS -- THE DOCUMENT THAT YOUR HONOR HAD ASKED US TO, WE WERE TRYING TO ASK OURSELVES WHAT IT IS EXACTLY THAT THE JUDGE HAS ASKED US TO DO. AND OUR INTERPRETATION WAS, HE IS ASKING US TO ELIMINATE THOSE, TO SPECIFY WHICH ELEMENTS WE DO NOT BELIEVE ARE ADMISSIBLE RATHER THAN JUST MAKING A GENERAL STATEMENT. AND IT WAS ALSO OUR INTERPRETATION THAT IN ESSENCE, WHAT THE COURT WAS IN A SENSE ASKING US TO DO WAS TO ENGAGE -- AND I MAY BE WRONG IN THIS -- BUT TO ENGAGE IN OUR OWN 352 ANALYSIS AND TO TAKE CERTAIN ITEMS WHERE THERE MIGHT BE EXTENSIVE CROSS-EXAMINATION OR EXTENSIVE IMPEACHMENT OR SO ON THAT WOULDN'T BE AS PROBATIVE TO THE PROSECUTION'S CASE AND LINE THOSE THROUGH. AND THAT WAS OUR INTERPRETATION OF WHAT THE COURT WANTED. SO TO A CERTAIN EXTENT, AND I'M NOT SAYING THAT THE COURT DOESN'T HAVE TO OBVIOUSLY ENGAGE IN ITS OWN ANALYSIS OR THAT THE COURT CAN RELY ON THE PROSECUTION. I'M NOT SUGGESTING THAT AT ALL. I'M JUST SAYING THAT IN MANY RESPECTS, WE WENT THROUGH LAST NIGHT THE SAME KIND OF ANALYSIS THAT YOUR HONOR IS GOING TO BE GOING THROUGH. NOW, THE ISSUE OF PREJUDICE HAS ALSO BEEN WELL DEFINED BY THE CASE LAW. AND WE KNOW WHAT THEY MEAN BY THAT TERM. THEY DON'T MEAN EVIDENCE WHICH TENDS TO INCRIMINATE THE DEFENDANT BECAUSE OBVIOUSLY ALL EVIDENCE THAT WE'RE INTRODUCING IS SUPPOSED TO ACCOMPLISH THAT END. IT HAS BEEN DEFINED BY THE CALIFORNIA SUPREME COURT IN PEOPLE VERSUS THOMPSON -- I CAN'T RECALL WHETHER WE CITED THAT IN OUR CASE. IT'S AT 27 CAL. 3D. AT PAGE 317 -- 27 CAL. 3D. 317 WHERE THEY SAID THAT:

"IT IS THE TENDENCY TO CONDEMN NOT BECAUSE HE IS BELIEVED GUILTY OF THE PRESENT CHARGE, BUT BECAUSE HE HAS ESCAPED UNPUNISHED FROM OTHER OFFENSES," END QUOTE. AND THAT IS ALSO REFLECTED IN THE CASE OF EWOLDT. SO THE IDEA IS THAT IN CERTAIN INSTANCES, WE ARE CONCERNED THAT THE JURY MAY DEVELOP THE MIND SET THAT, "THIS GUY HAS GOTTEN AWAY WITH THIS KIND OF THING BEFORE, AND I'M NOT REALLY SURE THAT HE'S GUILTY NOW, BUT I WANT TO PUNISH HIM FOR WHAT HAPPENED BEFORE. SO I AM GOING TO VOTE GUILTY ANYWAY." THAT IS THE KIND OF STATE OF MIND THAT WE ARE CONCERNED ABOUT WHEN WE TALK ABOUT PREJUDICE IN THE CONTEXT OF 352 AND 1101(B) CASES. NOW, IF THERE WAS EVER A CASE WHERE YOU WOULD THINK THAT WOULD BE TRUE, YOU WOULD THINK IT WOULD BE PEOPLE VERSUS EWOLDT, WHERE, ACCORDING TO MY CALCULATION, I THINK THERE WAS 12 YEARS -- AND I DID IT BASED ON THE AGES OF THE CHILDREN. SO IT'S POSSIBLE THAT I COULD BE A LITTLE BIT OFF, BUT PROBABLY NOT FAR -- THERE WAS 12 YEARS BETWEEN THE ACTS OF MOLESTATION OF THE FIRST CHILD AND ACTS OF MOLESTATION IN THE CHARGED OFFENSE, AND HE WAS NEVER TRIED AND CONVICTED OF THE PRIOR OFFENSE. AND COUNSEL CITED THIS FOR THE PROPOSITION -- THIS CASE FOR THE PROPOSITION DEFINING PREJUDICE THE WAY THAT I JUST HAVE. AND YOU WOULD THINK FROM THAT THAT EWOLDT SAID, WELL, FOR CRYIN' OUT LOUD, WE CAN'T ALLOW THIS EVIDENCE. I MEAN, IF THERE'S EVER A CASE WHERE THERE'S GOING TO BE PREJUDICE, THE FACT THEY KNOW THIS GUY IS ESSENTIALLY A PERVERT WHO DID EXACTLY THE SAME THING 12 YEARS EARLIER AND WAS NEVER PUNISHED FOR IT MIGHT CAUSE THEM TO VOTE GUILTY HERE. YET, THE COURT NEVERTHELESS FOUND THAT THE PRIOR INSTANCE WAS GOING TO COME IN. WHAT IS SIGNIFICANT HERE IN THIS ANALYSIS, YOUR HONOR, IS THE -- IN A WAY, THE VERY ARGUMENTS OF COUNSEL YESTERDAY UNDERCUT HIS 352 ARGUMENT BECAUSE TO THE EXTENT THAT HE HAS ARGUED THAT THESE INSTANCES CAN BE MINIMIZED, EXPLAINED, THAT THEY'RE AMBIGUOUS, THEY DON'T REALLY PROVE WHAT WE SAY THAT THEY PROVE, ARE WE REALLY TALKING ABOUT A CASE WHERE THE JURY IS GOING TO SAY, "GEE, I REALLY DON'T THINK ORENTHAL SIMPSON COMMITTED THAT MURDER. BUT HE DID SO MANY OTHER BAD THINGS THAT HE WASN'T CONVICTED OF, I'M JUST GOING TO CONVICT HIM OF A DOUBLE HOMICIDE ANYWAY"? BECAUSE THAT'S WHAT WE'RE CONCERNED ABOUT HERE. AND I DON'T THINK THAT A REASONABLE INTERPRETATION OF THE KINDS OF EVIDENCE THAT WE ARE SEEKING TO INTRODUCE IS -- LENDS ITSELF TO THAT KIND OF FEAR OR THAT KIND OF CONCERN. THE NEXT 352 TYPE OF ARGUMENT THAT WAS MADE WAS THE ISSUE OF TIME CONSUMPTION AND JUDICIAL EFFICIENCY. AND I JUST POINT OUT THAT ALL OF THESE RELATIONSHIP VIOLENCE CASES SINCE 1909 ALLOWED THIS KIND OF EVIDENCE. AND OBVIOUSLY THEY IMPLIEDLY DECIDED THAT IT WAS IMPORTANT ENOUGH TO ALLOW IN, NOTWITHSTANDING THE FACT THAT IT TAKES TIME TO PROVE THESE PRIOR INSTANCES.

THE COURT: BUT IN THOSE OTHER CASES, THEY'RE NORMALLY TALKING ABOUT ONE OR TWO OTHER INSTANCES WHERE HERE THERE IS SORT OF A LAUNDRY LIST OF ITEMS. I MEAN, WE ARE TALKING ABOUT 12 OR 15 MISDEMEANOR JURY TRIALS WITHIN THIS TRIAL, AREN'T WE?

MR. GOLDBERG: WELL, IN SOME YOU CAN'T TELL HOW MANY THERE WERE BECAUSE THEY SIMPLY SAY THERE WAS A HISTORY OF ABUSE OR A HISTORY OF ANTAGONISM. THEY USE LANGUAGE THAT DOESN'T REALLY ALLOW YOU NECESSARILY TO DETERMINE WHAT ALL THE SPECIFIC INSTANCES WERE. OBVIOUSLY WE HAVE A FEW SPECIFIC INSTANCES WHICH ARE HIGHLY PROBATIVE AND WE HAVE MANY OTHER INSTANCES THAT AREN'T. AND THAT IS TRUE THAT WE HAVE MANY INSTANCES. BUT IT ALSO IN A SENSE, YOUR HONOR, HELPS US OUT ON THE 352 CONCERN. BECAUSE THE ARGUMENT AGAINST THE ADMISSION OF THE EVIDENCE, ONE OF THE STRONGEST ARGUMENTS WOULD BE, IF YOU COULD SAY, THIS IS JUST AN ISOLATED INSTANCE, IF THERE WERE ONE SLAP AT ONE POINT IN THE HISTORY OF A RELATIONSHIP, THEN YOU COULD ARGUE UNDER 352, WELL, DOES THIS REALLY SAY SOMETHING ABOUT THE RELATIONSHIP ITSELF? WHAT THE PROSECUTION HAS SAID THAT WE ARE TRYING TO DO IS, WE ARE TRYING TO SAY SOMETHING ABOUT THIS RELATIONSHIP. WE ARE USING THE SPECIFIC INSTANCES TO ALLOW THE JURY TO MAKE CERTAIN INFERENCES AND DEDUCTIONS ABOUT THE KIND OF RELATIONSHIP IT WAS. AND THE VERY FACT THAT IT DID GO OVER AN EXTENSIVE PERIOD OF TIME COMPLETELY ELIMINATES ANY ARGUMENT THAT THIS WAS SOME SORT OF TRANSITORY PROBLEM THAT EXISTED, WAS LIMITED TO A YEAR OR TWO AND WENT AWAY. IT COMPLETELY ELIMINATES ANY ARGUMENT OR ANY INFERENCE OTHER THAN THAT THIS WAS AN INALIENABLE PART OF THE RELATIONSHIP BETWEEN THE DEFENDANT AND THE VICTIM IN THIS CASE. SO IN MANY WAYS, YES, YOUR HONOR, WE DO HAVE MANY INSTANCES. AND THAT MEANS THAT IT WILL TAKE MORE TIME, BUT IT ALSO MEANS THAT THE EVIDENCE IS MUCH MORE PROBATIVE, AND THEREFORE, WE MAKE A MUCH BETTER SHOWING ON THE PROBATIVE SIDE OF THIS TWO-PART 352 SCALE. AND WHAT I WOULD ALSO POINT OUT HERE IS THAT THE TIME CONSUMPTION CASES TYPICALLY ARE DEALING WITH SITUATIONS WHERE THE EVIDENCE IS COLLATERAL, WHERE IT DOESN'T GO TO THE HEART OF THE ISSUE. WHAT WE ARE SAYING IS THAT FUNDAMENTALLY, THIS IS DOMESTIC VIOLENCE MURDER. THE RELATIONSHIP IS ITSELF PART OF THE TRANSACTION IN THIS CASE AND EXPLAINS WHAT HAPPENED. THIS IS THE CASE. THIS ISN'T SOME SIDE ISSUE, NOT LIKE A CREDIBILITY ISSUE WHICH IS A COLLATERAL TYPE OF ISSUE IN CRIMINAL PROCEEDINGS. IT GOES TO THE VERY HEART AND CORE. THE SUPREME COURT IN NICHOLAS SAID, ACTUALLY GOES TO ONE OF THE ELEMENTS OF OUR CHARGE. I GUESS THAT THE DEFENDANT WILL PROBABLY SPEND MONTHS AND MONTHS ON THE DNA EVIDENCE AND THE PHYSICAL EVIDENCE ON THAT CASE, CROSS EXAMINE AD NAUSEAM, AND I THINK IT WOULD BE DIFFICULT TO A CERTAIN EXTENT TO CUT A LOT OF THAT OUT UNDER 352 BECAUSE AGAIN, IT REALLY DOES GO TO A VERY SIGNIFICANT PART OF THE CASE. AND USUALLY WHAT WE ARE TALKING ABOUT, 352, WE ARE TALKING ABOUT STUFF THAT'S COLLATERAL. AND ESSENTIALLY WHAT I HEAR IN THE ARGUMENT WHEN MR. UELMEN IS TALKING ABOUT TIME CONSUMPTION -- THEY'RE GOING TO HAVE TO CALL ALL THESE WITNESSES, REBUTTAL, CROSS-EXAMINE -- IS ALMOST A FORM OF LEGAL BLACKMAIL. THAT IS TO SAY TO THE JUDGE, YOUR HONOR, WE ARE GOING TO PUT ON SO MUCH EVIDENCE AND HAVE SO MUCH CROSS-EXAMINATION OF THESE WITNESSES THAT UNDER THIS TIME-CONSUMPTION CONCERN, WE SHOULD EXCLUDE THE EVIDENCE. AND I JUST DON'T BELIEVE, YOUR HONOR, THAT IT'S PROPER TO MAKE THAT KIND OF ARGUMENT OR THAT YOUR HONOR OR THE PEOPLE SHOULD BE IN A SENSE HELD HOSTAGE BY WHAT THE DEFENSE PROPOSES TO DO.

THE COURT: I'M NOT SUGGESTING THAT IT'S A MATTER OF A BLACKMAIL OR THREATENING. I'M NOT SUGGESTING THAT THAT ARGUMENT OR I'M NOT CONCERNED THAT THAT ARGUMENT WOULD BE CONSTRUED AS BEING BLACKMAIL OR HOLDING THE COURT HOSTAGE OR WHATEVER. BUT I DO HAVE A VERY PRACTICAL PROBLEM. THAT I'VE GOT 24 JURORS PROBABLY PLAYING TIDDLEDYWINKS RIGHT NOW WITH EACH OTHER. I'M VERY CONCERNED THAT WE GET THESE MOTIONS IF I'M CONCERNED THAT WE FINISH THESE MOTIONS THIS WEEK, LET ALONE HAVE TO TRY 12 INCIDENTS AS MISDEMEANOR JURY TRIALS WITHIN THIS TRIAL AND I'VE GOT A SEQUESTERED JURY THAT'S COSTING ME THOUSANDS OF BUCKS A DAY TO HOUSE, I MEAN IT IS A REAL PROBLEM, A REAL PRACTICAL PROBLEM; THE STAMINA AND THE ABILITY OF OUR TRIAL JURORS TO HANG IN THERE WITH US. I MEAN I GET PAID TO BE HERE EVERY DAY. THAT'S NOT A PROBLEM. BUT THEY DON'T.

MR. GOLDBERG: I UNDERSTAND THAT, YOUR HONOR. AND AS I SAID BY WAY OF ANALOGY, IT'S ALSO GOING TO BE A PROBLEM THAT THE DEFENSE IS PROBABLY GOING TO SPEND AND THE PROSECUTION WITHOUT ANY DOUBT REGARD TO BEING AN INORDINATE AMOUNT OF TIME ON MANY OF THE OTHER ISSUES ON THE CASE SUCH AS HOW IS EVERY OTHER SAMPLE OF EVIDENCE COLLECTED AND WHAT KIND OF DISTILLED WATER WAS USED AND WHAT WERE THE LABELS AND EVERY LITTLE TYPE OF TYPOGRAPHICAL ERROR, SO ON. BUT THE FACT OF THE MATTER IS THAT A DECISION HAS TO BE MADE HOW CENTRAL IS THIS TO THE PROSECUTION'S CASE OR TO THE DEFENDANT'S CASE. AND ALL I'M SAYING IS, WHEN WE'RE TALKING ABOUT TIME-CONSUMPTION ISSUES, THAT WE ARE TYPICALLY TALKING ABOUT CASES AND SCENARIOS WHERE THE EVIDENCE IN QUESTION DOESN'T GO TO THE HEART OF THE MATTER. THERE ARE A LOT OF THINGS THAT ARE GOING TO TAKE TIME IN THIS CASE. BUT THE ISSUE IS HOW IMPORTANT AND HOW CENTRAL ARE THEY.

THE COURT: I'M JUST RAISING TO YOU THE PRACTICAL CONCERN. I UNDERSTAND THE DISTINCTION BETWEEN COLLATERAL AND SUBSTANTIVE.

MR. GOLDBERG: OKAY. FINALLY, I'D JUST LIKE TO ADDRESS THE REMOTENESS ISSUE. THAT'S MY LAST 352 ISSUE, AND THEN I'LL BE FINISHED. IS THAT THERE ARE A NUMBER OF CASES THAT DEAL WITH REMOTENESS. ONE WAS PEOPLE VERSUS SHAVER, WHERE THE DEFENDANT MURDERED HIS WIFE, AND EVIDENCE WAS INTRODUCED THAT TWO YEARS BEFORE, HE FALSELY ACCUSED HIS WIFE OF SLEEPING WITH ANOTHER MAN. AND IN THE INTERVENING TWO YEARS, THE COURT SAID THAT INSOFAR AS THE RECORD WAS CONCERNED, THERE WERE NO PROBLEMS AT ALL. SO THAT WOULD SEEM TO BE A PROBLEMATIC CASE IN THE SENSE THAT YOU HAVE THAT TWO-YEAR GAP, SOMETHING THAT WE REALLY DON'T HAVE IN OUR CASE. BUT THE COURT HELD THAT REMOTENESS OF THIS EVIDENCE MIGHT LESSEN ITS WEIGHT, BUT DID NOT RENDER INADMISSIBLE. SO IT'S AN ISSUE THAT GOES TO WEIGHT, NOT ADMISSIBILITY. WE HAD PEOPLE VERSUS HELFEND, WHICH I ALREADY DISCUSSED. THAT WAS THE CASE WHERE THE EX-HUSBAND KILLED HIS WIFE'S NEW HUSBAND. AND THE EVIDENCE THERE WAS FOUR YEARS OLD. AND THAT OF COURSE, THE EWOLDT CASE ITSELF WHERE THE EVIDENCE WAS 12 YEARS OLD, AND IT WAS ALLOWED IN NEVERTHELESS. MAY I JUST HAVE A MOMENT, YOUR HONOR, TO REVIEW MY NOTES?

THE COURT: WELL, LET ME ASK A QUESTION ON THAT LAST POINT.

MR. GOLDBERG: YEAH.

THE COURT: YOU ARE ATTEMPTING TO GO BACK 17 YEARS ALL THE WAY BACK TO AN INCIDENT BACK IN 1977. DON'T I ALSO HAVE TO WEIGH IN THIS REMOTENESS PROCESS THE PROBATIVE VALUE OF THAT INCIDENT VERSUS HOW REMOTE IT IS VERSUS HOW MUCH TIME IT'S GOING TO TAKE? I MEAN, AREN'T THEY ALL CONSIDERATIONS THAT I HAVE TO CONSIDER?

MR. GOLDBERG: YOUR HONOR, THE COURT HAS TO CONSIDER THE TOTALITY OF THE FACTS. I THINK IT'S HARD TO SAY WHICH FACTS ARE TOTALLY IRRELEVANT. WHAT WAS SIGNIFICANT THOUGH IN THE EWOLDT CASE THAT I THINK ADDRESSES THE COURT'S CONCERN, WE HAD A VERY OLD CRIME --

THE COURT: THAT'S THE IDENTICAL CRIME. SO THE PROBATIVE VALUE IS SIGNIFICANTLY HIGHER THAN WHEN YOU HAVE SOME KIND OF CONDUCT THAT'S RELATED, BUT NOT THE SAME CONDUCT.

MR. GOLDBERG: OKAY. BUT ONE OF THE THINGS THAT THEY STRESS THERE AND I THINK IT IS JUST A POINT THAT THE COURT -- I WOULD ASK THE COURT TO CONSIDER IN YOUR HONOR'S ANALYSIS. AND I'M NOT SAYING THE COURT DOESN'T HAVE TO GO THROUGH ITS ANALYSIS. YOU DO. THE THING THAT THEY MENTION IN EWOLDT WHERE THEY WERE TALKING ABOUT REMOTENESS, THEY SAID, "LOOK, WE KNOW THIS IS 12 YEARS OLD. BUT WHAT WE FIND TO BE SIGNIFICANT IS THAT SHORTLY AFTER THE DEFENDANT STOPPED MOLESTING THE OLDER CHILD, HE STARTED MOLESTING THE YOUNGER CHILD." SO THERE WASN'T A GAP. SO THAT LEADS ME TO CONCLUDE FROM THAT CASE AND FROM OTHERS THAT WHAT THE COURTS ARE PRIMARILY CONCERNED ABOUT ARE GAPS. NOT NECESSARILY HOW OLD THE EVIDENCE IS, BUT ARE THERE ANY REAL GAPS OF A LENGTHY PERIOD OF TIME THAT SHOWS PERHAPS THE DEFENDANT'S CHARACTER HAS CHANGED IN BETWEEN THE TIME THE EARLIER EVENTS OCCURRED AND THE LATER EVENTS OCCURRED. AND AS I SAID, YOUR HONOR, I UNDERSTAND THE COURT'S ARGUMENT THAT YEAH, IT'S OLDER; THEREFORE, LESS PROBATIVE. BUT THERE'S A COUNTERVAILING ARGUMENT; AND THAT COUNTERVAILING ARGUMENT IS THE FACT THAT WE CAN SHOW THAT THIS WAS A PART OF THE RELATIONSHIP WHICH EXISTED AT THE GENESIS OF THE RELATIONSHIP. IT WAS A PART OF THE RELATIONSHIP WHICH EXISTED WHEN THE DEFENDANT PHYSICALLY TERMINATED THE RELATIONSHIP BY KILLING THE VICTIM, AND EVERYWHERE IN-BETWEEN MAKES THE EVIDENCE INFINITELY MORE PROBATIVE THAN IT WOULD OTHERWISE BE BECAUSE IT REALLY DOES KNOW THAT THIS IS A FUNDAMENTAL, AS I SAY, INALIENABLE ASPECT OF THE RELATIONSHIP BETWEEN THE DEFENDANT AND NICOLE BROWN SIMPSON. I JUST RECEIVED A NOTE ON THE ZACK ANALYSIS, WHICH INDICATES THAT THE ANSWER, ONE OF THE ANSWERS TO YOUR HONOR'S QUESTION IS THAT ZACK WAS A RETRIAL, AT WHICH THE COURT GRANTED THE PEOPLE'S MOTION TO HAVE THE EVIDENCE INTRODUCED IN ITS CASE IN CHIEF. SO THAT WOULD -- IF TRUE -- AND I HATE EVER SAYING SOMETHING WITHOUT RELOOKING AGAIN -- WOULD DISPOSE OF THAT CONCERN. BUT I DON'T THINK THAT'S A MAJOR CONCERN THERE.

THE COURT: YOU MEAN YOU HAVEN'T TALKED TO JUSTICE YEAGEN ABOUT THAT? MEAN, OUT OF CURIOSITY, HOW DID WE COME BY THAT INFORMATION?

(DISCUSSION BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MR. GOLDBERG: WELL, I GUESS THIS WAS ANOTHER ONE OF THE WONDERS OF TECHNOLOGY. SOME LAW PROFESSOR APPARENTLY CAUSED THIS TO BE SENT TO THE PROSECUTION IN TIME FOR THE CLOSING OF MY ARGUMENT TODAY. THE --

THE COURT: TIMING IS EVERYTHING.

MR. GOLDBERG: YES, IT IS. THE BOTTOM LINE IS, YOUR HONOR, VERY SIMPLY, THIS KIND OF EVIDENCE COMES IN. WE HAVE A VERY LENGTHY HISTORY OF IT COMING IN IN CALIFORNIA. WHETHER YOU WANT TO SAY IT'S A DISTINCT MOTIVE ANALYSIS DEALING WITH RELATIONSHIP VIOLENCE CASES, WHETHER YOU WANT TO CHARACTERIZE IT AS 1101(B) ANALYSIS, IT COMES IN. AND AS STATED BY THE COURT IN PEOPLE VERSUS ZACK, A TRIAL IS A SEARCH FOR THE TRUTH. AND I THINK WHAT WE HAVE DEMONSTRATED TODAY, THAT TO DENY THE JURY THE OPPORTUNITY TO HEAR THIS EVIDENCE IS NOT SIMPLY TO HIDE THE TRUTH FROM THE JURY, BUT IT IS TO AFFIRMATIVELY CAUSE THEM TO MAKE CERTAIN ASSUMPTIONS ABOUT THIS CASE THAT ARE THE OPPOSITE OF THE TRUTH. IT IS -- AS WE'VE STATED BEFORE, TRULY IT'S A PERPETRATED FRAUD ON THE JURY. YOUR HONOR, WE BELIEVE THAT LEGALLY, WE BELIEVE THAT LOGICALLY AND, AS MR. GORDON IS ABOUT TO SAY, EVEN EMPIRICALLY, THE EVIDENCE IN THIS CASE IS RELEVANT AND IT IS ADMISSIBLE. THANK YOU.

THE COURT: THANK YOU, COUNSEL.

MR. GORDON: GOOD AFTERNOON, YOUR HONOR.

THE COURT: ALREADY?

MR. GORDON: WELL, CLOSE. IT JUST FEELS THAT WAY. AND I'LL TRY TO RUN A 352 ANALYSIS ON MYSELF TO KEEP THIS BRIEF.

THE COURT: ALL RIGHT.

MR. GORDON: I WANT TO ADDRESS A COUPLE ISSUES TO THE COURT. THE FIRST ONE RELATES TO WHAT THE SOCIAL SCIENCE ARGUMENTS THAT HAVE BEEN ARGUED IN THIS MOTION AND BY THE DEFENSE IN THEIR BRIEF AND HOW THEY ARE RELEVANT TO SEVERAL NOTIONS THAT HAVE BEEN ARGUED BACK AND FORTH AND ARE VERY KEY TO THE COURT MAKING ITS DECISION HERE. SO PRESENT SOME INFORMATION TO THE COURT WITH REGARD TO A LOT OF THE ISSUES WE'VE BEEN TALKING ABOUT IN THE EMPIRICAL REALM TO MAKE SOME DECISIONS HERE. SO ISOLATED SOLELY TO THIS MOTION, HOPEFULLY GIVE THE ORDER SOME EVIDENCE WITH REGARD TO THAT. THEN SECONDLY, GOING TO ANALYSIS WITH REGARD TO THE USES OF EXPERT TESTIMONY IN A TRIAL IN THIS MATTER AND ADDRESS SOME OF THE COURT'S CONCERNS WITH REGARD TO 1107. AND WITH REGARD TO THE USE OF EXPERT TESTIMONY, AGAIN, I THINK THIS IS A POINT SIMILAR TO RAISING THE MULTIPLE ISSUES YESTERDAY. WE CERTAINLY RECOGNIZE THAT THE INTRODUCTION OF EXPERT TESTIMONY WITHIN THIS TYPE OF TRIAL OR A SEXUAL ASSAULT TRIAL OR CHILD ABUSE TRIAL CAN BE TRIGGERED BY SEVERAL DIFFERENT THINGS WITHIN A TRIAL. AND I THINK THERE ARE FOUR DIFFERENT CIRCUMSTANCES WE HAVE TO CONSIDER IN THE TRIAL. ONE IS WHAT I CALL KIND OF THE PHILLIPS, CEGERS, MCALPIN ANALYSIS THAT TALK ABOUT WHAT IS USED IN CASE IN CHIEF. SECOND IS THE TRADITIONAL BLEDSOE, BALKER ARIS ANALYSIS WHICH IS MORE OF A REBUTTAL TYPE OF USE OF AN EXPERT WHICH CAN OCCUR IN THE CASE IN CHIEF OR IN REBUTTAL, DEPENDING WHAT OCCURS BY THE DEFENSE, DEPENDING UPON THE CROSS-EXAMINATION, ARGUMENTS, WHAT INFERENCES ARE RAISED WHEN THAT TRIAL OCCURRED. AND ONE OF THE REASONS WHY I THINK WE BROUGHT THIS UP IN THIS BRIEF NOW IS -- AND TO ARGUE AND PUT THIS BEFORE THE COURT NOW, THAT MANY OF THE ARGUMENTS THAT WERE MADE, ESPECIALLY THE SOCIAL SCIENCE ARGUMENTS, BUT MANY OF THE ARGUMENTS MADE IN THE DEFENDANT'S BRIEF AND CERTAINLY THE ARGUMENTS THAT HAVE BEEN MADE YESTERDAY BY DEAN UELMEN ARE EXACTLY, EXACTLY THE KIND OF MISCONCEPTIONS ABOUT WHAT OCCURS TO A BATTERED WOMAN, WHICH REFERS TO ADDRESSED BY LENORE WALKER IN 1979 IN THIS BOOK, THE BATTERED WOMAN, WHICH HAVE BEEN INCORPORATED IN NUMEROUS CASES BY THE COURT AND BY THE LEGISLATURE. SO IF THOSE ARE QUOTED HERE WITH EXPECTATION THAT THOSE WILL BE EXACTLY THE SAME KIND OF ARGUMENTS IN CROSS-EXAMINATION THAT WOULD OCCUR IN THIS CASE, IT WOULD TRIGGER -- SO MUCH OF THAT IS GEARED TOWARD THAT. AND WE CERTAINLY UNDERSTAND THAT THERE MAY BE A TRIGGERING MECHANISM THAT MUST OCCUR. NEXT IS 1107 AND THE EFFECT OF 1107 ON THIS AREA IN GENERAL. AND THEN LASTLY IS A STOLL SITUATION WHICH, AS IN PEOPLE VERSUS STOLL, AGAIN REQUIRING THE TRIGGERING MIGHT OCCUR DEPENDING ON THE DEFENSE WOULD BRING FORTH EXPERT TESTIMONY IN THEIR CASE. I'M NOT GOING TO ADDRESS THAT ONE. I JUST WANTED TO BRING IT TO THE COURT'S ATTENTION BECAUSE IT'S A SEPARATE SITUATION THAT MAY OCCUR, AND WE CAN TAKE IT UP AT THAT TIME. BUT I DO THINK WE NEED TO LIKE -- WE NEED TO ANALYZE THESE IN THESE DISCREET SECTIONS. AND IT'S VERY, VERY IMPORTANT TO CONSIDER WHAT'S OCCURRING HERE IN THIS MOTION AND SOME OF THE ARGUMENTS THAT ARE BEING MADE AND WHAT THEY ARE BEING SAID BOTH IN A LEGAL WAY, WHEN THE COURT MAKES ITS DETERMINATION, THE FACTS THAT THE COURT IS GOING TO BE BASING IT ON, BUT ALSO SOME VERY SIGNIFICANT POLICY ARGUMENTS. AS DEAN UELMEN WAS CARRYING HIS FILE AROUND WE'VE BEEN HEARING A LOT ABOUT, I MYSELF WASN'T QUITE FAR ALONG. I WAS AT THE LOWER END OF THE -- LOWER IS NOT THE WORD -- THE END OF THE CRIMINAL JUSTICE SYSTEM ON THE STREET PUSHING A PATROL CAR AROUND. AND I LEARNED A LOT ABOUT DOMESTIC VIOLENCE OUT THERE. AND A COUPLE THINGS I LEARNED AS A POLICE OFFICER, PATROLMAN OUT THERE WAS, ONE, TO BE REAL CAREFUL AT THOSE CALLS BECAUSE THEY'RE VERY DANGEROUS AND VERY VIOLENT, EXPLOSIVE SITUATIONS. NUMBER TWO, WHAT I LEARNED IS IF IN MY BEAT THERE WAS A HOUSE OR DOMESTIC VIOLENCES GOING ON, UNLESS I INTERVENED, I WAS GOING TO BE SPENDING A LOT OF TIMES THERE BECAUSE I WAS GOING TO GET CALLS OVER AND OVER AND OVER AGAIN. AND THE OTHER THING I LEARNED WAS THAT SOME OF THE WORST ASSAULTS THAT I SAW, SOME OF THE WORST HOMICIDES I SAW AS A PATROLMAN WERE OUT OF DOMESTIC VIOLENCE CALLS. I LEARNED THAT AS A COP OUT ON THE STREET AND SQUATTED ALL MY TIME ON PATROL. AND WHAT KIND OF AMAZED ME WHEN I CAME INTO COURT, WHERE WE TAKE A MUCH MORE SCHOLARLY APPROACH HOPEFULLY TO THINGS THAN SAY PATROLMEN DO OUT IN THE MIDDLE OF THE NIGHT TALKING ABOUT THINGS, AT LEAST THAT'S WHAT WE'RE SUPPOSED TO -- BUT WHAT I SAW IS THAT OF THE REALITIES THAT I LEARNED OUT THERE WERE NOT ONLY IGNORED, BUT IN FACT WERE TRIVIALIZED AND MINIMIZED IN COURT AND OCCURRED ALL THE TIME. THAT'S JUST THE KIND OF THING WE'RE HEARING YESTERDAY. WHAT HAPPENS OVER AND OVER AND OVER AGAIN TO WOMEN IN THIS SOCIETY IS, WE SAY, LOOK, WE UNDERSTAND THAT BATTERING IS A PROBLEM, AND YOU NEED TO BRING THAT PROBLEM WITHIN THIS SYSTEM. AND WHEN YOU GET IN THE SYSTEM, WE ARE -- THIS IS THE PLACE TO TAKE CARE OF IT. THE JUSTICE SYSTEM IS GOING TO RESPOND TO IT. AND THEN LOOK AT WHAT'S HAPPENING HERE JUST IN THIS MOTION TODAY. IN THE WORST POSSIBLE SITUATION FOR BATTERED WOMAN, AND WHEN THE CRIMINAL JUSTICE DIDN'T RESPOND ADEQUATELY, IT RESULTED IN HER DEATH. WE ARE HERE AND THIS ARGUMENT IS REVOLVING AROUND WHETHER THOSE EXPERIENCES WHICH GO TO THE VERY HEART AND DRIVE EVERY SINGLE THING THAT OCCURRED IN THIS CASE EVEN COME HERE, EVEN COME IN BEFORE THIS JURY WHO WILL BE JUDGING THE BATTERER WHO TOOK THIS WOMAN'S LIFE, WHETHER THEY COME IN OR NOT. AND I THINK THOSE ARE POLICY CONSIDERATIONS THAT NEED TO BE KIND OF IMPRINTED OVER THIS. NOW, WITH REGARD TO THE SOCIAL SCIENCE ARGUMENT THAT IS PRESENTED BY THE DEFENSE -- AND THERE IS AN ARGUMENT THAT WAS PRESENTED THAT THIS BASICALLY IS NUMERIC ANALYSIS, THAT THE COURT CANNOT -- SHOULD NOT CONSIDER SIMILARITIES. THIS IS WITHOUT GETTING TO THE POWER AND CONTROL WHEEL AT ALL. IT'S JUST ON A VERY NUMERIC SIMILARITY. THAT -- THERE'S TWO -- I THINK THE NUMBERS WERE, THERE WERE 2.5 MILLION WOMEN BATTERED IN THE UNITED STATES LAST YEAR AND THERE WERE ONLY -- AND I ABSOLUTELY HATED READING THAT WORD AND I DON'T LIKE SAYING IT, BUT THERE WAS ONLY 2,000 WOMEN THAT WERE KILLED; THEREFORE, THERE'S NO CONNECTION. THERE'S A COUPLE PROBLEMS FROM THAT ANALYSIS. NUMBER ONE IS, JUST LOGICALLY, TO USE THE SAME ANALYSIS, ONE COULD ARGUE THAT WELL, THERE'S HUNDREDS OF MILLIONS OCCURRENCES OF SEX WITHIN THIS COUNTRY EVERY YEAR; YET ONLY A FRACTION OF THE PEOPLE ENGAGING IN SEX GET PREGNANT. NO LINKS THERE. THAT'S THE SAME KIND OF ANALYSIS THAT'S BEING MADE. WHAT THE DEFENSE HAS DONE -- WHAT PRODDER (PHONETIC) SHOWS US IN HIS ANALYSIS, WHAT HE HAS DONE, HE'S TAKEN SOMETHING CALLED THE CONFLICT TACTIC SCALE. AND THAT IS A SCALE THAT IS USED TO EVALUATE ABUSIVENESS BY A BATTERER TOWARDS HIS OR HER SPOUSE. THERE ARE MULTIPLE, MULTIPLE FACTS ALONG THAT SCALE THAT MEASURE THE LEVEL OF BATTERING. HE USED ONE, ONE OF THE FACTORS OUT OF THAT AND THEN SAID, "THAT'S THE POPULATION THAT WE'RE GOING TO COMPARE. WE ARE GOING TO TAKE ONE PERSON WHICH HAS ANY KIND OF PHYSICAL CONTACT AT ALL, THAT ONE ELEMENT, AND THAT IS THE BASE POPULATION OF BATTERERS WE ARE GOING TO LOOK AT COMPARED TO HOMICIDES." THAT'S NOT THE WAY YOU DO THAT. IF YOU JUST USE THAT ONE SCALE, THE CONFLICT TACTIC SCALE, AND YOU SEE MULTIPLE, MULTIPLE FACTORS, PRESENTING EVIDENCE HOPEFULLY LATER TO DESTROY A MORE DETAIL OF THAT, YOU REDUCE THAT POPULATION GEOMETRY TO GET DOWN TO THE POPULATION THAT SHOULD BE COMPARED. BUT THAT'S NOT -- YOU GET TO SOMETHING CALLED THE TOTAL LOP SCALE, AND THE SCALE IS A SCALE THAT THERE'S EMOTIONAL ABUSE THAT IS ADDED ON TOP OF THAT. AND WHEN YOU HAVE INSTANCES OF EMOTIONAL ABUSE ON TOP OF THE PHYSICAL ACTS THAT HAVE OCCURRED WITHIN THE CONFLICT TACTIC SCALE, YOU HAVE EVEN A SMALLER POPULATION, ONCE AGAIN DECREASING THAT POPULATION THAT'S COMPARED TO HOMICIDES AND INCREASING THE FREQUENCY OR NUMBERS, IF THEY WANT TO USE NUMBER GEOMETRY. YOU THEN GO TO A DOCUMENT CALLED INTRUSIVENESS SCALE. AND THE INTRUSIVENESS SCALE MEASURES STALKING. STALKING IS AN PHENOMENALLY, PHENOMENALLY IMPORTANT BEHAVIOR WHEN LOOKING AT INSTANCES OF BATTERING AND BATTERING RELATIONSHIPS. THE RESEARCH HAS SHOWN THAT WHEN YOU HAVE STALKING BEHAVIOR, THE RISK RATIO GOES UP PHENOMENALLY, AND ON TOP OF THAT, THAT POPULATION OF BATTERERS WE HAVE GOES DOWN GEOMETRICALLY. LASTLY, GOING TO --

THE COURT: THIS IS BEGINNING TO SOUND LIKE DNA ARGUMENT.

MR. GORDON: SORRY. WELL, MY OFFICE IS CLOSE TO LISA KAHN. SO MAYBE IT'S KIND OF RUBBING OFF. SORRY. THEN GO TO -- WELL, YOU THEN GO TO THE DIETZ THREATS SCALE. AND THE DIETZ THREATS SCALE IS SOMETHING THAT LOOKS AT ACTUAL RISK AND LOOKS AT RISK FACTORS. AND IN THE DIETZ SCALE, THERE ARE SEVERAL PREDICTORS OF VIOLENCE. AND WHAT IT SAYS IS, IF A DEFENDANT OR A POTENTIAL BATTERER HAS ANY ONE, ANY ONE OF THE FACTORS IN THAT DIETZ SCALE, THEY ARE 50 PERCENT MORE LIKELY TO COMMIT -- I THINK HE USES THE TERM AN "ATROCIOUS CRIME" SUCH AS A HOMICIDE. IN THIS CASE, THERE ARE FOUR ON THAT PRIMARY. SO IF WE WERE GOING TO USE THE PROPER NUMERIC ANALYSIS, WHAT WE WOULD FIND IS THAT THE POPULATION THAT WE GOT DOWN TO WHEN WE LOOKED AT THE FACTS THAT WE HAVE HERE COMPARED TO THE NUMBER OF HOMICIDES IS A MUCH SMALLER PORTION OF BATTERERS. AND NOT ONLY IS THE NUMBERS GAME MUCH, MUCH CLOSER AND SHOW A DIRECT RELATIONSHIP, BUT THAT IN FACT, WHEN LOOKING AT THE -- WHAT WE HAD OCCUR IN THIS CASE, THAT NICOLE BROWN SIMPSON WAS AT VERY, VERY HIGH RISK AT ALL TIMES. AND AGAIN, I DON'T PROPOSE TO USE THAT ANALYSIS AND THAT'S NOT TESTIMONY I EXPECT TO BE PRESENTED IN TRIAL AND THAT IS NOT WHAT I'M SUGGESTING THE EXPERT WOULD TESTIFY TO AT TRIAL IN THE FORM OF ANALYSIS. I JUST WANT TO RESPOND TO THE SOCIAL SCIENCE ARGUMENT HERE, AND I THINK THERE'S INFORMATION THAT THE COURT NEEDS TO HAVE TO EVALUATE MANY OF THE ARGUMENTS THAT HAVE BEEN PRESENTED IN ANALYZING THIS TESTIMONY. ONE OF THE CONCERNS I HAVE IN INTERCHANGE BETWEEN MR. GOLDBERG AND THE COURT WITH REGARD TO OUR ANALYSIS OF THESE INCIDENTS IS THAT WHAT WE PROPOSE TO TALK ABOUT WITHIN THAT POWER AND CONTROL WHEEL, THAT ANALYSIS OF POWER AND CONTROL WE THINK IS AN ARGUMENT THAT CERTAINLY CAN BE MADE WITH LOGIC AND COMMON SENSE. THAT WHEN ONE VIEWS THESE VARIOUS ACTS WITHIN A RUBRIC OF POWER AND CONTROL, THAT ONE BY COMMON SENSE CAN SEE THAT THEY ARE ALL CONTROL MECHANISMS, THAT THAT'S THE LOGICAL INFERENCE. ONE CAN SEE HOW THESE DIFFERENT TYPES OF BEHAVIORS WHEN LINED UP WITHIN A POWER AND CONTROL ANALYSIS CERTAINLY HAVE THAT -- THEY ARE MECHANISMS OF POWER AND CONTROL. AND WHEN VIEWING WHAT THE DEFENDANT DID IN THIS CASE, THAT THIS POWER AND CONTROL IN FACT ESCALATED. AND WITHOUT GETTING TO ANY EXPERT ANALYSIS AT ALL, JUST BY MAPPING WHAT OCCURRED HERE, BY LAYING IT OUT AND MAPPING IT AND LOOKING AT THE KEY EVENTS, THAT WE WOULD ARGUE TO THE JURY, BECAUSE THIS IS THE TRUTH OF WHAT HAPPENED, THAT THIS POWER AND CONTROL ESCALATED UNTIL THIS TERMINAL ACT OF CONTROL. NOW, I THINK CERTAINLY HAVING EXPERT TESTIMONY TO EXPLAIN THAT IN MUCH MORE ARTICULATE TERMS THAN I CAN AND WITH A BETTER -- CERTAINLY A BETTER FOUNDATION CERTAINLY, CERTAINLY HELPS, IS GOING TO HELP THE TRIER OF FACT. AND I THINK THERE ARE WAYS THAT THERE ARE CERTAIN THEORIES THAT THAT CAN COME IN. AND I DON'T KNOW IF THE WANTS ME TO BREAK NOW OR KEEP GOING.

THE COURT: WELL, YOU HAVE A FEW MORE MINUTES WORTH OF COMMENTS.

MR. GORDON: OKAY. I'LL KEEP GOING. THE FIRST IS, UNDER THE TRADITIONAL BLEDSOE, BOWKER AND ARIS CASE. AND WHAT THOSE THREE CASES, BLEDSOE DEALING WITH RAPE TRAUMA SYNDROME, BOWKER DEALING WITH CHILD ABUSE ACCOMMODATION SYNDROME, ARIS DEALING WITH BATTERED WOMAN'S SYNDROME, TALK ABOUT THE ABILITY OF THE PROSECUTION -- ARIS WAS ACTUALLY THE DEFENSE INTRODUCING THE CASE -- BUT THE ABILITY TO INTRODUCE EVIDENCE TO DISABUSE THE TRIER OF FACT OF MISCONCEPTIONS THAT ARE HELD ABOUT THE ISSUE AT BAR. ONE OF THE CONCERNS I HAVE THAT THE COURT RAISED WAS DISCUSSING 1107. I WILL GET TO 1107 IN A MINUTE. BUT THAT A NOTION THAT 1107 -- THIS WAS AN ARGUMENT ADVANCED BY THE DEFENSE -- THE PRESCRIPTION IN 1107(A) SOMEHOW TOOK OVER ALL EXPERT TESTIMONY ANALYSIS WITH REGARD TO ANY ISSUE WITH REGARD TO BATTERED WOMAN SYNDROME. I WANT TO RESPOND TO THAT IN A COUPLE WAYS. FIRST IS LEGISLATIVE INTENT. AND THE COURT HAS TO LOOK AT WHAT HAPPENED WITH THIS SECTION AS IT WAS WRITTEN. THIS SECTION WAS WRITTEN BY THE SAME -- BY A LEGISLATURE WHICH HAS FINALLY BEGAN TO RESPOND TO THE NEEDS AND ISSUES OF BATTERED WOMEN. THIS IS LEGISLATURE THAT WITHIN THE FAMILY CODE HAS THE FAMILY DOMESTIC VIOLENCE PREVENTION ACT. PASSED 273.6 PENAL CODE REGARDING DOMESTIC VIOLENCE RESTRAINING ORDER, HELPED EXPAND, BROADEN 273.5, DOMESTIC ASSAULT LEGISLATION. AND IN THE SAME YEAR, THEY BROADENED 1107, PASSED MODIFICATIONS TO 12022 REGARDING SEIZING WEAPONS AND DOMESTIC VIOLENCE CODE AND JUST LAST YEAR PASSED BATTERED WOMAN'S ACT WHICH PROVIDED ALMOST 30 MILLION DOLLARS -- I THINK IT WAS 28 MILLION DOLLARS SPECIFICALLY FOR PROVIDING FOR THE PROSECUTION AND PROTECTION OF BATTERED WOMEN. THAT'S A PUBLIC POLICY VOICED BY THIS LEGISLATURE. THESE ARE SOME OF THE SECTIONS PASSED BY THIS LEGISLATURE. AND WHAT HAPPENED IN 1107 IS, 1107 AROSE AT A TIME WHEN COURTS WERE NOT ALLOWING EVIDENCE IN IN CASES WHERE A WOMAN HAD KILLED HER BATTERER AND COURTS WERE NOT ALLOWING IN CERTAIN EVIDENCE. SUFAT (PHONETIC) WAS ONE, CASE THAT OCCURRED -- CULVER CITY CASE ACTUALLY. 1107 CAME AS A RESPONSE. AND WHEN 1107 FIRST CAME IN IN THE LANGUAGE WE SEE IT, OPPOSITION AROSE FROM BATTERED WOMEN'S GROUPS THROUGHOUT CALIFORNIA BY PROSECUTORS, BY WOMEN'S GROUPS THROUGHOUT CALIFORNIA SAYING, "HOLD ON. WE UNDERSTAND WHAT YOU ARE DOING IN THE INTEREST OF BATTERED WOMEN," WHICH THAT IS BY FAR, THE PURPOSE OF THAT SECTION IS TO ASSIST BATTERED WOMEN. "WE UNDERSTAND WHAT YOU ARE DOING, BUT YOU'RE GOING TO HURT US BECAUSE IF YOU PASS THE SECTION, PEOPLE ARE GOING TO COME UP AND MAKE ARGUMENTS JUST LIKE THE ONES THE DEFENSE ARE MAKING HERE. AND WE DON'T WANT TO SEE A SECTION WHICH PRESCRIBES US THAT WAY AND LIMITS US. DON'T LIMIT US. IF ANYTHING, EXPAND IT." AND THE AUTHOR ASSEMBLYMAN EAVES RESPONDED TO THAT AND AMENDMENTS WERE DRAWN UP AND MADE TO 1107 TO SPECIFICALLY INDICATE WHAT THE PRESCRIPTION WAS IN 1107. AND SPECIFICALLY IN THE ANALYSIS OF THAT BILL, AB785 THAT WAS DONE IN THE SENATE JUDICIARY COMMITTEE -- AND I THINK I GAVE THE COURT SPECIFIC QUOTES OF THAT IN MY RESPONSE BRIEF -- IN THAT AREA WHICH DEALT WITH PRESCRIPTION, THE COURT -- THE LEGISLATURE SPECIFICALLY, SPECIFICALLY DEALT WITH BLEDSOE AND BOWKER AND SAID, "THE SAME PRESCRIPTION THAT WE HAVE HERE IN BLEDSOE AND BOWKER IS THE SAME PRESCRIPTION THAT WE WANT TO HAVE IN 1107." WE DON'T INTEND TO BLOCK ANY OTHER CASE LAW, ANY OTHER THEORIES OF ADMISSIBILITY. WE DON'T INTEND TO BLOCK ANY OTHER CASE LAW. WE WANT TO MIRROR THIS. AND IN FACT, IN 1992, AFTER THIS ACTION WAS PASSED WITH THAT INTENT AND LANGUAGE, IT WAS BROADENED EVEN FURTHER TO ALLOW NOT ONLY BATTERED WOMEN'S SYNDROME EVIDENCE, BUT ALSO SPECIFICALLY THE IMPRESSIONS, NATURE, SENSIBILITIES OF THE VICTIM OF BATTERED WOMEN'S SYNDROME. SO THERE IS -- BY NO MEANS, THIS WAS NOT EXCLUSIONARY STATUTE. BY NO MEANS WAS THIS STATUTE MEANT TO BLOCK OTHER EXISTING CASE LAW OR OTHER THEORIES. AND WHAT IS INTERESTING -- IS ACTUALLY VERY INTERESTING AND A PARADOX WITHIN BLEDSOE -- AND BLEDSOE AND BOWKER -- WHEN YOU READ ARIS, WHICH TALKS ABOUT BLEDSOE AND BOWKER AND HOW THOSE CASES RELATE TO THIS SYNDROME, WHAT IT SAYS IS, YOU KNOW, THE ONLY REASON THAT THE RAPE TRAUMA SYNDROME AND CHILD ABUSE ACCOMMODATION SYNDROME ARE NOT ALLOWED FOR THE PURPOSES THAT WE ARE PRESCRIBING -- AND THAT PURPOSE IS A VERY DISCREET ONE. THAT PURPOSE IS THAT FOR ME TO CALL AN EXPERT IN A CHILD ABUSE CASE AND SAY, "DR. SO AND SO, HAVE YOU EXAMINED THE VICTIM IN THIS CASE; AND AFTER HAVING DONE SO, DO YOU HAVE AN OPINION AS TO WHETHER SHE WAS ABUSED OR NOT?" THAT I CAN NOT DO. ABSOLUTELY. AND DON'T IN THOSE CASES AND WOULDN'T IN THIS CASE. WHAT I CAN DO, WHAT I ABSOLUTELY CAN DO IS TO BRING IN CIRCUMSTANCES SURROUNDING WHAT OCCURS AND WHAT HAS OCCURRED IN THIS CHILD'S LIFE, KIND OF EVIDENCE LIKE ACTING OUT IN SCHOOL, HER SCHOOL RECORDS, HOW -- CHANGES IN HER RELATIONSHIP, CHANGES IN HER BEHAVIOR, EXTERNAL EVIDENCE BY WHATEVER PURPOSE I CAN BRING IT IN, AND THEN HAVE AN EXPERT TALK ABOUT VICTIMS OF THAT AGE AND CLASS WITHOUT REFERRING TO THE VICTIM HERE AT ALL. IN OTHER WORDS, SAY TO THAT EXPERT, "HAVE YOU DONE RESEARCH WITH REGARDS TO EFFECTS OF THE SEXUAL ABUSE ON EIGHT YEAR OLDS?" "YES, I HAVE." "WHAT KIND OF BEHAVIORS OCCUR? WHAT HAPPENS?" HAVE THEM SAY WHATEVER THEY SAY. AND THEN IN CLOSING, IF I CAN MATCH IT UP, GREAT. I CAN MATCH IT UP. SAME WITH RAPE TRAUMA SYNDROME. AND THAT IS ESSENTIALLY KEY IN BOTH OF THOSE WHEN ANY MISCONCEPTIONS HAVE BEEN BROUGHT UP EITHER THROUGH CROSS-EXAMINATION, OPENING ARGUMENT, PRESENTATION OF EVIDENCE WITH REGARD TO ANY OF THOSE SYNDROMES. AND THE ONE THAT THE COURT HAS COMMONLY HEARD -- AND I KNOW THIS HAS OCCURRED IN FRONT OF THIS COURT BEFORE WITH RAPE CASES -- "WHY DID YOU WAIT TO REPORT THIS TO THE POLICE? YOU HAD BEEN OUT WITH HIM BEFORE. SO THEREFORE, YOU CAN'T BE RAPED." THE CHILD, "WHY DIDN'T YOU EVER SAY ANYTHING TO ANYBODY?" WELL, LOOK, THIS KID WAS HAVING TROUBLE IN SCHOOL. SO SHE MUST BE A BAD KID IN LYING. ALL THOSE KIND OF INFERENCES THERE THAT ARE RAISED. WHAT IS INTERESTING IN BATTERED WOMEN'S SYNDROME, WHAT IS FASCINATING, IT'S KIND OF PROPHETIC HERE COMPARED TO THOSE CASES, IS THAT THE MISCONCEPTIONS THAT WE HEAR IN BATTERED WOMEN'S SYNDROME CASES, THE MISCONCEPTIONS THAT ARE CONTAINED WITHIN THE MOVING PAPERS BY DEFENSE THAT WERE ARGUED IN FRONT OF THIS COURT YESTERDAY, WERE LAID OUT AND ARGUED IN VERY SPECIFIC NUMBER AS THOSE MYTHS AROUND BATTERED WOMEN'S SYNDROME IN 1979.

THE COURT: ALL RIGHT. MR. GORDON, LET'S TAKE OUR RECESS AT THIS POINT.

MR. GORDON: COULD WE APPROACH FOR A SECOND, PLEASE?

THE COURT: WE'LL RESUME AT 1:30.

(DISCUSSION HELD OFF THE RECORD AT THE BENCH.)

(AT 12:05 P.M., THE NOON RECESS WAS TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)

LOS ANGELES, CALIFORNIA; THURSDAY, JANUARY 12, 1995 1:33 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 COURT: GOOD AFTERNOON, COUNSEL. BACK ON THE RECORD IN THE SIMPSON MATTER. THE DEFENDANT IS AGAIN PRESENT WITH HIS COUNSEL. THE PEOPLE ARE REPRESENTED.

MR. GORDON: GOOD AFTERNOON, SIR.

THE COURT: MR. GORDON, YOU WERE GOING TO CONCLUDE YOUR COMMENTS?

MR. GORDON: YES, SIR. I AM GOING TO MOVE THEM RIGHT ALONG. I WANT TO TALK ABOUT ONE CASE, AND YESTERDAY WE HAD TALKED ABOUT PRESENTING SOME TESTIMONY. I HAVE TALKED TO MR. BAILEY ABOUT IT. WITH THE COURT'S LEAVE WE WILL BE PRESENTING SOME SHORT TESTIMONY BY DR. DUTTON THAT WOULD ASSIST THE COURT. THE DEFENSE HAS WITHDRAWN THE OBJECTION.

THE COURT: ALL RIGHT. PROCEED.

MR. GORDON: ONE CASE I JUST WANT TO TALK ABOUT WITH THE COURT BEFORE WE TALK TO DR. DUTTON IS A CASE THAT WE HAVE CITED IN OUR BRIEF CALLED PEOPLE VERSUS PHILLIPS AT 122 CAL.APP.3D 69. I JUST MENTION PHILLIPS FOR A COUPLE OF REASONS. ONE, I THINK IT IS THE USE THAT THE COURT USED EXPERT TESTIMONY FOR IN PHILLIPS WHICH WAS APPROVED OF IN SEVERAL SUPREME COURT CASES, INCLUDING STOLL. I THINK IS VERY ANALOGOUS TO A SITUATION WE MAY HAVE OCCUR IN THIS CASE. PHILLIPS WAS A CASE OF HOMICIDE IN WHICH THE DEFENDANT KILLED HER CHILDREN THROUGH A SYNDROME KNOWN AS MUNCHAUSEN BY PROXY SYNDROME AND IN THAT SYNDROME -- I'M SURE THE COURT IS AWARE OF IT -- THIS WAS A WOMAN THAT DESCRIBED TO THE WORLD, BY ALL PUBLIC ACCOUNTS, WAS THIS WELL-TO-DO MOTHER, EVERYTHING WAS FINE, SHE HAD THIS GRAND LIFE, TWO KIDS, THE STATION WAGON IN THE DRIVEWAY, EVERYTHING LOOKED WONDERFUL, AND YET THIS HORRID ACT OF HER KILLING HER KID -- HER KIDS THROUGH THIS SYNDROME OCCURRED. THE PROSECUTION ASKED THE COURT TO USE EXPERT TESTIMONY, NOT TO DIAGNOSE THIS WOMAN, NOT TO SAY THAT THEY HAD READ THE RECORD AND HAD LOOKED AT THE HISTORY HERE -- AND THIS WAS CLEARLY A MUNCHAUSEN BY PROXY CASE -- NOT TO IN ANY WAY EXAMINE THE RECORD, BUT TO GET UP AND JUST DESCRIBE WHAT OCCURRED WITHIN THAT SYNDROME IN GENERAL, TO EXPLAIN IT TO THE JURY SO THAT THEY COULD UNDERSTAND, IF PROVEN, IF THE FACTS UNDERNEATH PROVEN, SHOW A MOTIVE, THAT THIS IS SOMETHING THAT DOES EXIST AND IT IN FACT PROVIDES A MOTIVE. AND IN FACT THERE IS A QUOTE THAT WITHIN PHILLIPS THAT IS ESPECIALLY IMPORTANT AND IT APPEARS AROUND PAGE 77 TO 80, WHERE IN THAT PASSAGE AT 77 TO 80 THE PHILLIPS COURT SPECIFICALLY LAYS OUT A PROCEDURE FOR -- FOR PRESENTATION OF THIS KIND OF TESTIMONY, INCLUDING HOW THE QUESTION SHOULD BE FRAMED, WHAT ISSUES CAN IT GO TO AND A JURY INSTRUCTION, 2.72 THAT SHOULD BE READ WITH THE TESTIMONY AS IT -- RIGHT AFTER IT COMES IN IN AN ABUNDANCE OF CAUTION, AND THERE THE COURT SAID:

"WHILE PROSECUTOR ORDINARILY NEED NOT PROVE MOTIVE AS AN ELEMENT OF A CRIME, THE ABSENCE OF APPARENT MOTIVE MAY MAKE PROOF OF THE ESSENTIAL ELEMENTS LESS PERSUASIVE. CLEARLY THAT WAS THE PRINCIPLE PROBLEM CONFRONTING THE PROSECUTOR HERE. IN THE ABSENCE OF A MOTIVATIONAL HYPOTHESIS AND IN LIGHT OF OTHER INFORMATION WHICH THE JURY HAD CONCERNING HER PERSONALITY AND CHARACTER, THE CONDUCT OF THE APPELLANT WAS APPARENTLY INEXPLICABLE, AS BOTH PARTIES RECOGNIZED THE EXPERT'S TESTIMONY WAS DESIGNED TO FILL THIS GAP." SO PHILLIPS IS A PRIME EXAMPLE OF OUTSIDE OF ONE OF THESE USES WHERE EXPERT TESTIMONY WAS USED IN A CASE IN CHIEF TO EXPLAIN A MOTIVE, NOT TO DIAGNOSE THE VICTIM, NOT TO DIAGNOSE THE DEFENDANT, NOT TO ANALYZE EVIDENCE, BUT TO PRESENT INFORMATION TO THE TRIER OF FACTS SO THAT IT CAN BE UNDERSTOOD. AND IN DAY, A CASE THAT SPECIFICALLY TALKS ABOUT A WOMAN'S ISSUES, THERE IS -- DAY HAS A VERY, VERY IMPORTANT QUOTE WHICH THE COURT SHOULD CONSIDER WITH REGARD TO 352 TYPE OF INFORMATION OR ANALYSIS FOR THIS TESTIMONY. AND IN DAY, WHICH WAS TESTIMONY REGARDING THE KIND OF ISSUES WE ARE TALKING ABOUT HERE, WHERE THERE WAS A 352 OBJECTION TO THE EXPERT TESTIMONY, THE DAY COURT SAID, LOOK, THIS ISN'T ANY KIND OF MAGIC THAT IS BEING PLACED IN FRONT OF SOME GULLIBLE GROUP OF PEOPLE; THIS IS REASONABLE INFORMATION BEING PLACED IN FRONT OF A REASONABLE TRIER OF FACT AND IT IS ABSOLUTELY PROPER. AND NOT ONLY IS THAT SUPPORTED BY THE LAW, THERE ARE SEVERAL STUDIES WHICH WE HAVE CITED IN OUR BRIEF, LAW REVIEW ARTICLES AND STUDIES WHICH HAVE IN FACT -- AND I DON'T KNOW HOW MANY TIMES THE COURT GETS THIS KIND OF INFORMATION-- HAS IN FACT MEASURED THE IMPACT OF EXPERT WITNESS TESTIMONY ON THE TRIAL PROCESS AND JURIES WITH REGARD TO BATTERED WOMEN'S SYNDROME.

THOSE ARE CITED IN OUR BRIEF, AND AS THE COURT SAW ON THE BRIEF, WHAT WAS INDICATED IS THAT THERE WAS NO SUCH PREJUDICIAL IMPACT AS DESCRIBED BY MR. UELMEN YESTERDAY AT ALL. IN FACT, WHAT THE STUDIES FOUND AND WHAT THE COURTS FOUND IN DAY AND ARIS AND IN THE OTHER CASES, IS THAT, AS I HAVE SAID BEFORE, TO MAKE A DECISION WITHOUT THIS COULD CONSTITUTE GRAVE INJUSTICE. WITH THAT I WOULD LIKE TO CALL DR. DUTTON IF I COULD, SIR.

THE COURT: ALL RIGHT.

DONALD DUTTON, CALLED AS A WITNESS BY THE PEOPLE, WAS SWORN AND TESTIFIED AS FOLLOWS:

THE CLERK: PLEASE RAISE YOUR RIGHT HAND TO BE SWORN. DO YOU SOLEMNLY SWEAR THAT THE TESTIMONY YOU MAY GIVE IN THE CAUSE NOW PENDING BEFORE THIS COURT, SHALL BE THE TRUTH, THE WHOLE TRUTH AND NOTHING BUT THE TRUTH, SO HELP YOU GOD.

THE WITNESS: I DO.

THE CLERK: PLEASE BE SEATED AND STATE AND SPELL YOUR FIRST AND LAST NAMES FOR THE RECORD.

THE WITNESS: DONALD DUTTON, D-U-T-T-O-N.

MR. GORDON: YOUR HONOR, I HAVE PRESENTED THE COURT WITH A COPY OF PROFESSOR DUTTON'S CURRICULUM VITAE YESTERDAY. IF THE COURT DOESN'T HAVE ONE HANDY, I HAVE ANOTHER ONE.

THE COURT: I HAVE IT HERE IN MY HAND.

MR. GORDON: I HAVE TALKED TO THE DEFENSE, AND FOR PURPOSES OF THIS HEARING ONLY AND LIMITED ONLY FOR THESE PURPOSES, THEY MIGHT OFFER TO STIPULATE AS TO THE MATERIAL STATED FORTH IN THE CURRICULUM VITAE AND THAT DR. DUTTON WOULD QUALIFY AS AN EXPERT WITH REGARD TO DYNAMICS OF SPOUSAL ASSAULT.

MR. BAILEY: THAT'S CORRECT, YOUR HONOR. WE RECOGNIZE HIM AS WELL-RESPECTED IN HIS FIELD.

THE COURT: THANK YOU. I WILL ACCEPT THE STIPULATION.

MR. GORDON: THANK YOU.

THE COURT: MR. GORDON.

MR. GORDON: THANK YOU.

DIRECT EXAMINATION

BY MR. GORDON:

Q: DOCTOR, IN YOUR WORK HAVE YOU DONE ANY STUDIES OR BEEN FAMILIAR WITH A SYNDROME KNOWN AS THE BATTERED WOMEN'S SYNDROME?

A: YES, I HAVE.

Q: DOES THAT SYNDROME IN ITSELF GO TOWARD THE DESCRIPTION OF ANY CERTAIN AFFECTS OR ANY ONE PARTICULAR DYNAMIC OF SPOUSAL ASSAULT?

A: WELL, IT IS TYPICALLY USED TO DESCRIBE REACTIONS THAT BATTERED WOMEN HAVE, BUT THERE IS ALSO SOME MATERIAL IN THE LITERATURE THAT DESCRIBES THE KIND OF RELATIONSHIPS THAT WOULD BRING ABOUT WHAT'S CALLED BATTERED WOMEN'S SYNDROME.

Q: NOW, BEYOND BATTERED WOMEN'S SYNDROME, HAVE YOU DONE ANY WORK OR DONE ANY RESEARCH IN ANY AREA OR DYNAMIC OF SPOUSAL ASSAULT OTHER THAN BATTERED WOMEN'S SYNDROME?

A: YES. MOST OF THE WORK I DO IS ON PROFILING PERPETRATORS OF INTIMATE ABUSE.

Q: BATTERERS?

A: YES.

Q: WHAT DO YOU MEAN BY "PROFILING"?

A: I MEAN WHAT WE DO IN OUR RESEARCH IS TO DO PSYCHOLOGICAL PROFILES OF MEN WHO ARE COURT-MANDATED FOR TREATMENT FOR WIFE ASSAULT AND SOME MEN WHO COME IN WHO ARE SELF-REFERRED, AND THEN TO COMPARE THOSE PSYCHOLOGICAL PROFILE TO THEIR WIFE'S REPORTS OF THE MAN'S ABUSIVENESS, PHYSICAL ABUSE, EMOTIONAL ABUSE AND OTHER FORMS OF ABUSE. WE TRY TO MATCH THE TWO UP, IN OTHER WORDS, TO SEE HOW THE WHOLE PROFILE STANDS.

Q: YOU HAVE HAD THE OPPORTUNITY TO DO PROFILE WORK WITH CERTAIN BATTERINGS OR BATTERED POPULATIONS?

A: YES, I HAVE.

Q: APPROXIMATELY HOW MANY?

A: MEN OR POPULATIONS?

Q: FIRST MEN?

A: OKAY. WELL, APPROXIMATELY 700 MEN. WE HAVE RESEARCHED DATA ON ABOUT 300 TO 400 MEN.

Q: AND WHEN YOU SAY "POPULATIONS," HAVE YOU LOOKED AT OR RESEARCHED ANY SPECIFIC POPULATIONS IN ADDITION TO THAT?

A: YES, WE HAVE.

Q: AND WHAT IS THAT, SIR?

A: VARIETY OF ETHNIC POPULATIONS AND PRIMARILY A VARIETY OF ETHNIC POPULATIONS AND DIFFERENT SOCIOECONOMIC POPULATIONS.

Q: AND WHERE HAS THIS WORK OCCURRED?

A: IN VANCOUVER, BRITISH COLOMBIA.

Q: ANTICIPATED THAT THAT MAY COME UP. HAVE YOU DONE ANY RESEARCH OR ANY WORK COMPARING OR LOOKING AT THE FACT WHERE THIS WORK IS DONE COMPARED TO THE UNITED STATES, CANADA, ANYTHING LIKE THAT?

A: OH, YEAH. SOCIAL SCIENCE RESEARCH IS REALLY AN INTERNATIONAL ENTERPRISE AND I AM IN CONSTANT CONTACT WITH MY U.S. COLLEAGUES AND WE ARE COMPARING PAPERS BACK AND FORTH ALL THE TIME. THERE DOESN'T REALLY SEEM TO BE MUCH EVIDENCE THAT THERE IS ANY PSYCHOLOGICAL DIFFERENCES IN THE DETERMINANTS OF INTIMATES ABUSIVE NEGLIGENCE BETWEEN CANADA AND U.S., FOR EXAMPLE. SOCIOLOGICAL DIFFERENCES BUT NOT PSYCHOLOGICAL DIFFERENCES.

Q: ARE YOU FAMILIAR WITH A SOCIAL SCIENCE ARGUMENT THAT HAS BEEN PUT FORTH IN THE DEFENSE BRIEF, ESSENTIALLY TO SUMMARIZE IT, THAT BECAUSE THERE IS 2.5 MILLION BATTERINGS A YEAR AND, SAY, ONLY ONE TO 2000 DOMESTIC HOMICIDES OR SPOUSAL HOMICIDES, THAT THERE IS NO LINK BETWEEN THOSE TWO?

A: YES, I AM.

Q: DO YOU HAVE AN OPINION OF THAT, SIR?

A: YES, I DO.

Q: AND WHAT IS IT?

A: WELL, COULD I DEMONSTRATE IT? I THINK I CAN MAYBE JUST SORT OF SHOW IT VERY QUICKLY HERE.

Q: I HAVE --

A: JUST TO DEMONSTRATE IT VERY QUICKLY TO THE COURT.

MR. GORDON: WE HAVE SEVERAL CHARTS.

THE WITNESS: OKAY. I JUST NEED THE ONE FIRST.

MR. GORDON: SIX CHARTS MARKED AS PEOPLE'S 1?

THE WITNESS: CAN YOU SEE THAT?

MR. BAILEY: CAN WE TURN IT SLIGHTLY, YOUR HONOR?

THE COURT: SURE.

MR. GORDON: MARKED FOR I.D. NEXT ORDER.

THE WITNESS: THIS IS SOMETHING CALLED THE "CONFLICTS TACTICS" SCALE, A SCALE THAT WAS DEVELOPED BY DR. MURRAY STRAUSS AT THE UNIVERSITY OF NEW HAMPSHIRE. THIS IS A SCALE THAT HAS BEEN USED IN ALL OF THE U.S. NATIONAL SURVEYS OF INCIDENTS OF SPOUSAL ASSAULT. HE DID A NATIONAL SURVEY IN 1975, HE DID ANOTHER ONE IN 1985, HE DID A THIRD ONE IN 1992. NOW, TO BE CONSIDERED ASSAULTIVE, ALL THAT HAS TO HAPPEN, AND I'M NOT TRYING TO MINIMIZE THIS, IS THAT A MAN HAS TO OR -- THE SURVEYS ARE DONE BOTH WITH PERPETRATORS AND VICTIMS. THE RESULTS MAY BE SURPRISINGLY ABOUT THE SAME. THERE IS NOT A HUGE DIFFERENCE IN INCIDENCE RATE WHETHER YOU ASKED THE QUESTION "DID YOU DO THIS" OR WHETHER YOU ASK THE QUESTION "WAS THIS EVER DONE TO YOU," BUT IF SOMEONE ANSWERS "YES" TO ANY ONE OF THESE QUESTIONS: "PUSHED, GRABBED OR SHOVED THE OTHER ONE, SLAPPED ANOTHER ONE, KICKED, BIT OR HIT THE OTHER ONE, HIT OR TRIED TO HIT WITH SOMETHING, BEAT UP, THREATENED WITH A KNIFE OR GUN OR USED A KNIFE OR GUN," THEY JUST HAVE TO ANSWER YES TO ANY ONE OF THOSE QUESTIONS TO GO INTO THIS GENERAL POOL OF MEN WHO ARE CONSIDERED TO BE ASSAULTIVE.

Q: AND WHY IS THAT SIGNIFICANT FOR THIS OPINION THAT WAS RENDERED?

A: UMM, WELL, IT IS SIGNIFICANT BECAUSE IT IS A RATHER LIBERAL CRITERION, I THINK, GIVEN THE KIND OF EVIDENCE THAT YOU ARE TALKING ABOUT IN THIS CASE. AS THE NUMBER OF ACTS BECOMES MORE SERIOUS AND MORE FREQUENT, THEN WHAT HAPPENS IS YOU GET INTO A DIFFERENT KIND OF PSYCHOLOGY OF THE PERSON WHO WAS COMMITTING THOSE ACTS. I MEAN, JUST TO GIVE A CASE IN POINT, IF A MAN ONCE IN HIS MARRIAGE, IN REACTION TO SITUATIONAL STRESSES, HAPPENS TO PUSH HIS WIFE, HE STILL QUALIFIES FOR THIS LARGE POOL OF MEN WHO ARE CONSIDERED TO BE BATTERERS, BUT I WOULD SAY AS A PSYCHOLOGIST THAT IS A VERY DIFFERENT MAN THAN SOMEONE WHO IS USING THESE MORE SERIOUS TYPES OF PHYSICAL ASSAULTS AND IS USING THEM REPEATEDLY. AND WHEN YOU GET DOWN TO THE MEN USING THE "BEAT UP" AND THE MORE SERIOUS TYPES OF ASSAULT REPEATEDLY, THEN YOU ARE DOWN TO TWO PERCENT OF THE U.S. POPULATION.

Q: AND IS THAT THE ONLY SCALE YOU WOULD LIMIT YOUR ANALYSIS TO?

A: DEFINITELY NOT. THIS JUST MEASURES PRIMARILY PHYSICAL ACTIONS. PROBABLY AS IMPORTANT A SCALE IS ONE THAT WAS ALLUDED TO IN COURT PREVIOUSLY. IT IS DEVELOPED BY DR. RICHARD TOLMAN AT THE UNIVERSITY OF MICHIGAN, SOMETIMES CALLED THE PSYCHOLOGICAL MALTREATMENT OF WOMEN INVENTORY, BUT WE WILL CALL IT THE TOLMAN SCALE, AFTER THE FOUNDER. THIS SCALE MEASURES A VARIETY OF EMOTIONAL ABUSE ITEMS, PUT DOWN BY PHYSICAL APPEARANCE, INSULTED ME OR SHAMED ME, CALLED ME NAMES, SWORE AT ME. THIS IS ONE CATEGORY OF THE TOLMAN SCALE THAT DEALS SPECIFICALLY WITH EMOTIONAL ABUSE, THAT IS ATTEMPTS TO UNDERMINE THE SELF-ESTEEM OF THE OTHER PERSON.

Q: HOW DOES THAT RELATE -- DOES THAT NARROW THE POPULATION YOU LOOK AT WITH THE OTHER --

A: IT NARROWS IT CONSIDERABLY, AND IN CONJUNCTION WITH THE SECOND FACTOR ON THIS SCALE, WHICH IS CALLED DOMINANCE ISOLATION, WHERE THE ONE PERSON IS TRYING TO TOTALLY CONTROL THE OTHER PERSON'S USE OF SPACE OR TIME, MONITORED MY TIME AND MADE ME ACCOUNT FOR IT, ORDERED ME AROUND, WAS STINGY IN GIVING ME MONEY, THOSE KIND OF QUESTIONS TIE INTO THIS SECOND FACTOR ON THIS SCALE, WHICH IS THE DOMINANCE ISOLATION SCALE. NOW, IF YOU GET SOMEONE WHO AGAIN IS FREQUENTLY USING A LOT OF THESE ITEMS ON THIS EMOTIONALLY ABUSED SCALE, IN CONJUNCTION WITH THE PHYSICAL ABUSE, THEN YOU'VE GOT A MUCH SMALLER GROUP OF MEN WITH A MUCH HIGHER RISK FACTOR, BECAUSE ONE OF THE THINGS THAT COMES OUT OF THIS SCALE IS A VERY STRONG MOTIVE FOR CONTROL OF THE OTHER PERSON, CONTROL AND DOMINATION OF THE OTHER PERSON.

Q: AND WOULD YOU LIMIT IT THERE? SO THIS HAS REDUCED THE POPULATION GREATLY, CORRECT?

A: THIS HAS REDUCED IT GREATLY AND ACTUALLY THIS SCALE GOES RIGHT THROUGH TO AND INCLUDING "THREATS" DOWN TOWARD THE END, SO YES, THAT LIMITS IT VERY GREATLY AND WOULD INCREASE THE RISK FACTOR.

THE COURT: ALL RIGHT. THOSE THREE CHART PAGES WILL BE PEOPLE'S 9.

(PEO'S 9 FOR ID = 3 CHARTS)

MR. GORDON: THERE IS ACTUALLY ONE MORE.

THE WITNESS: OKAY.

Q: BY MR. GORDON: IS THAT THE ONLY SCALE YOU WOULD LIMIT IT TO?

A: NO, THAT IS NOT THE ONLY SCALE WE WOULD LIMIT IT TO, BUT AS YOU INCREASE DATA -- SEE, WHAT I'M SAYING IS THIS HUGE POOL OF MEN WHO ARE CALLED ASSAULTIVE WERE BASED SIMPLY ON MEN WHO ANSWERED "YES" TO ONE QUESTION ON THAT FIRST SCALE. OUR RESEARCH SHOWS YOU CAN GO WAY BEYOND IT AND AS YOU GO WAY BEYOND IT YOU GET TO A PSYCHOLOGICALLY DIFFERENT GROUP OF MEN WHO ARE USING CONTROL AND DOMINATION AS A PRIMARY MOTIVE IN THEIR RELATIONSHIPS AND THESE ARE MEN WHO I WOULD CALL ABUSIVE PERSONALITIES BUT THEY ARE PSYCHOLOGICALLY DIFFERENT FROM EVERYBODY IN THAT BROADER CATEGORY.

Q: TAKE YOUR SEAT AGAIN.

A: (WITNESS COMPLIES.)

Q: WHY -- WELL, WHEN THE FIRST -- THE STATISTIC THAT CAME OUT THE 2.5 MILLION WAS TALKING ABOUT PHYSICAL ACTS OF VIOLENCE. WHEN YOU LOOK AT CASE OF SPOUSAL ABUSE OR WHEN YOU LOOK AT THIS ABUSIVE PERSONALITY, DO YOU LIMIT YOUR INQUIRY ONLY TO PHYSICAL ACTS?

A: ABSOLUTELY NOT. WE LOOK AT THE BROADER PICTURE OF EMOTIONAL ABUSE DOMINANCE ISOLATION. WE LOOK AT INTRUSIVENESS, IF THE COUPLE HAS SEPARATED. WE LOOK AT WHAT MIGHT BE CALLED STALKING BEHAVIOR AND WE ALSO LOOK AT PHYSICAL VIOLENCE.

Q: THESE OTHER BEHAVIORS THAT YOU HAVE JUST DESCRIBED, THE EMOTIONAL ABUSE, VERBAL ABUSE, HUMILIATION, STALKING, PHYSICAL ABUSE, DO YOU EVER LOOK AT FINANCIAL ABUSE OR FINANCIAL --

A: WE CONSIDER FINANCIAL ABUSE TO BE PART OF THE DOMINATION CONTROL SUBSECTION ON THIS SCALE. IT IS ONE ASPECT OF IT.

Q: DO THEY HAVE ANY CONTACT OR CONNECTION OR LINK IN ANY WAY TO BATTERING OR PHYSICAL ABUSE?

A: YES, THEY ARE ALL HIGHLY STATISTICALLY CORRELATED. THEY ARE SIGNIFICANTLY RELATED TO EACH OTHER.

Q: DO THEY SHARE ANY COMMON CHARACTERISTICS, THOSE TYPES OF ABUSE?

A: WELL, THE MAIN COMMON CHARACTERISTIC IS THAT THEY ALL HAVE AN UNDERLYING MOTIVE OF CONTROL OF THE OTHER PERSON.

Q: DO THEY ALL HAVE -- FAIR TO SAY THEY ARE ALL WITHIN THE SAME DESIGN, WHICH IS IN CONTROL?

A: THAT'S RIGHT.

Q: AND IN YOUR OPINION, IN TRYING TO FIND A LINK BETWEEN THE HOMICIDE AND THE BATTERING POPULATION, IS IT PROPER TO LOOK AT THIS BROADER 2.5 MILLION SUBSET OR SET?

A: NO, NOT REALLY. I MEAN, YOU ARE COMPARING, IN MY OPINION, FENDER-BENDERS WITH HEAD-ON COLLISIONS IF YOU DO IT THAT WAY.

Q: AND IN YOUR OPINION, IF YOU HAVE THE MULTIPLE TYPES OF ABUSE WITHIN A HISTORY, WITHIN A PERSONALITY, THAT POPULATION, THERE IS A LINK BETWEEN THAT AND SPOUSAL HOMICIDES?

A: THERE IS A PSYCHOLOGICAL LINK. THERE HAS -- IF YOU WANT TO LOOK AT IT EMPIRICALLY, YOU ARE LOOKING AT A WHOLE SEPARATE SET OF STUDIES AND THOSE ARE SOME OF THE STUDIES WHICH ARE ALLUDED TO IN COURT THE OTHER DAY, WHICH ARE STUDIES THAT ARE DONE ON WOMEN WHO HAVE BEEN KILLED BY INTIMATE PARTNERS AND WHERE THE RESEARCHERS HAVE TAKEN THE TIME TO INVESTIGATE THAT STUDY. THAT IS, THEY START WITH THE CORONER'S REPORT, WORKED BACK TO THE POLICE REPORT, AND IN SOME CASES GONE BACK AND INTERVIEWED THE FAMILY AND FRIENDS OF THE VICTIM TO FIND OUT AS MUCH AS THEY COULD ABOUT WHAT THE BACKGROUND FACTORS WERE IN THOSE RELATIONSHIPS.

Q: NOW, WHEN YOU LOOK AT ONE OF THESE HISTORIES, IS IT SIGNIFICANT TO YOU TO LOOK AT INCIDENTS THAT OCCURRED WITHIN THE PAST YEAR?

A: YES.

Q: HOW ABOUT TEN YEARS AGO?

A: YES.

Q: WHY?

A: UMM, BECAUSE EVEN THOUGH IT MIGHT SOUND LIKE SOMETHING THAT HAPPENED TEN YEARS IN THE PAST IS HISTORY AND UNRELATED, IN FACT WHAT FREQUENTLY GOES ON IN ABUSIVE RELATIONSHIPS IS VERY DIFFERENT. LET ME JUST GIVE YOU A QUICK EXAMPLE IF I MIGHT. I HAD A MALE CLIENT WHO BEAT UP HIS WIFE IN 1985. WHEN HE BEAT HER UP HE SAID, "NEXT TIME IT IS GOING TO BE WORSE" AND SHE REPORTED TO ME THAT WHEN HE BEAT HER UP HIS FACE CHANGED, HIS PHYSIOGNOMY CHANGED, HIS NOSTRILS FLARED, HE HAD A VERY DIFFERENT EXPRESSION ON HIS FACE. FOR THE NEXT SIX YEARS HE NEVER HIT HER AGAIN, BUT WHENEVER SHE SAW THAT EXPRESSION ON HIS FACE, SHE IMMEDIATELY TOWED THE LINE, SO THERE WAS A CONTINUING CONTROL THAT WENT ON EVEN THOUGH THERE WAS A SEVEN-YEAR GAP BETWEEN THAT 1985 INCIDENCE OF PHYSICAL ABUSE AND THE NEXT INCIDENCE OF PHYSICAL ABUSE.

Q: WAS IT SIGNIFICANT TO YOU TO CONSIDER BOTH OF THOSE ACTS?

A: THEY HAVE TO BE CONSIDERED IN CONJUNCTION. IF THE TWO -- IF THE INTERACTION OF THE CONTROL DOMINATION EMOTIONAL ABUSE IS NOT CONSIDERED IN CONJUNCTION WITH THE PHYSICAL ABUSE, YOU LOSE THE CONTEXT OF THE PHYSICAL ABUSE, YOU LOSE THE MEANING AND MOTIVATION OF PHYSICAL ABUSE.

Q: IN REGARD TO THE STUDIES OF SPOUSAL HOMICIDE, IS THERE ANY ONE MOTIVE THAT HAS COME OUT AS PREDOMINANT?

A: WELL, THE MAIN PRECIPITATING FACTOR -- IN FACT, THERE IS SIX DIFFERENT STUDIES THAT HAVE BEEN DONE. THE FIRST ONE WAS MARTIN WOLFGANG, DID A STUDY IN PHILADELPHIA, WHICH IS STILL A CLASSIC IN 1948, BUT THE TWO MAIN THINGS THAT COME OUT IS, FIRST OF ALL, ESTRANGEMENT, JEALOUSY, A HISTORY OF PHYSICAL ABUSE AND/OR JEALOUSY IN THE RELATIONSHIP AND RECENT ESTRANGEMENT BETWEEN THE PERPETRATOR AND VICTIM.

Q: WHEN YOU SAY "ESTRANGEMENT," DOES THAT MEAN DIVORCE?

A: IT DOESN'T NECESSARILY MEAN DIVORCE. "ESTRANGEMENT" IS REALLY SORT OF A SUBJECTIVE TERM. IT MEANS THAT THE PERPETRATOR IN HIS MIND -- AND I'M TALKING HERE ABOUT WOMEN BEING KILLED BY MEN, SO I USE THE TERM "HIS" -- IN HIS MIND THE PERPETRATOR HAS SEEN THE RELATIONSHIP AS FINALLY LOST. THAT TOTALLY CHANGES HIS PSYCHOLOGY AT THAT POINT, SO IT GOES FROM CONTROL AND DENIGRATE TO DESTROY AND THERE IS CONSIDERABLE PSYCHIATRIC LITERATURE ON THAT AND SOME OF THIS LITERATURE WE HAVE USED IN OUR OWN RESEARCH.

Q: SO THE MERE FACT THAT THERE IS A DIVORCE MIGHT NOT TRIGGER THAT?

A: NOT NECESSARILY IF THEY ARE DIVORCED, BUT THE MAN STILL IS HOLDING OUT SOME KIND OF HOPE THAT THEY MIGHT RECONCILE, THEN HE HAS STILL BONDED HER AND HE MIGHT NOT SUBJECTIVELY SEE THEM AS BEING ESTRANGED AT THIS POINT.

Q: SO HE MIGHT GO ON WITH THIS CONTROL NOTION UNTIL SOME OTHER EVENT TRIGGERS THIS EVENT?

A: THAT IS --

Q: WOULD IT HAVE TO BE SOME MAJOR EVENT, LIKE MOVING OUT OF STATE?

A: IT WOULDN'T HAVE TO BE A MAJOR EVENT. IT COULD BE A MINOR EVENT, DEPENDING ON HOW THAT MAN CONSTRUES THE EVENTS AND WHAT ITS SYMBOLIC VALUE IS TO HIM.

Q: WHAT DO YOU MEAN BY THAT?

A: WELL, I MEAN, UMM, IF -- LET'S SAY, FOR EXAMPLE, A WOMAN HAS ALWAYS ANSWERED HIS PHONE CALLS EVEN THOUGH THEY HAVE BEEN DIVORCED, OKAY, AND SUDDENLY SHE STOPS ANSWERING HIS CALLS AND STOPS RETURNING HIS CALLS, REPEATEDLY OVER TIME, EVEN THOUGH THAT MIGHT SEEM LIKE A TRIVIAL THING, MORE OR LESS, IN THE OVERALL SCHEME OF THINGS, TO HIM THAT MIGHT HAVE MAJOR SYMBOLIC SIGNIFICANCE, TO TELL HIM THAT POSSIBLY THIS RELATIONSHIP NOW IS LOST, OKAY?

Q: AND IN SUCH A CASE WHERE YOU WERE TO LOOK AT A HOMICIDE WHERE THIS ESTRANGEMENT OR MORBID JEALOUSY, AS YOU CALL IT, MIGHT BE THE MOTIVE, ARE CONTROL HISTORIES IMPORTANT TO LOOK AT?

A: CONTROL HISTORIES ARE IMPORTANT AND ONE OF THE STUDIES THAT WAS DONE, AGAIN THEY FOUND NINETY PERCENT OF THE CASES HAD SOME BACKGROUND OF CONTROL AND ABUSE THAT PRECEDED THE HOMICIDE.

Q: AND WHEN YOU SAY "CONTROL HISTORIES," AGAIN DO YOU LIMIT THAT JUST TO PHYSICAL ATTACKS?

A: NO.

Q: DO YOU LOOK AT ALL THE DYNAMICS AND CONTROL MECHANISMS?

A: YES.

Q: AND THEY ARE LINKED?

A: THEY ARE LINKED DEFINITELY.

MR. GORDON: MAY I HAVE JUST ONE MOMENT, YOUR HONOR?

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

MR. GORDON: NO FURTHER QUESTIONS AT THIS TIME, SIR.

THE COURT: MR. BAILEY.

CROSS-EXAMINATION

BY MR. BAILEY:

Q: DR. DUTTON, WHEN WERE YOU FIRST ENGAGED IN THIS CASE BY THE STATE?

MR. GORDON: OBJECTION, RELEVANCE, YOUR HONOR.

THE COURT: OVERRULED. YOU CAN ANSWER THE QUESTION.

THE WITNESS: DECEMBER, 1994.

Q: BY MR. BAILEY: ALL RIGHT. AND YOU HAVE BEEN SITTING HERE DURING THE DAY AND A HALF OF HEARINGS THAT HAVE PRECEDED YOUR ARRIVAL ON THE WITNESS STAND, HAVE YOU NOT?

A: YES, I HAVE.

Q: AND YOU HAVE LISTENED TO A SERIES OF ALLEGED INCIDENTS PORTRAYED BY THE PROSECUTION?

A: YES.

Q: HAVE YOU STUDIED ANY ADDITIONAL MATERIALS RELEVANT TO THE CASE BEFORE COMING HERE TODAY?

A: YES. I LOOKED AT AN EVIDENCE BOOK THAT HAD BEEN PROVIDED.

Q: ALL RIGHT. IS THAT CALLED THE MURDER BOOK, DO YOU KNOW?

A: I HADN'T HEARD THAT TERM USED, BUT --

Q: SOME BOOK WITH EVIDENCE IN IT?

A: YEAH. A GREEN BOOK WITH EVIDENCE IN IT; THAT'S RIGHT.

Q: HAVE YOU LOOKED AT ANYTHING OTHER THAN DOCUMENTS?

MR. GORDON: OBJECT ON RELEVANCE GROUNDS.

THE COURT: OVERRULED.

THE WITNESS: UMM, I HAVE LOOKED AT THE DEFENSE AND PROSECUTION BRIEFS.

Q: BY MR. BAILEY: TO JUDGE ITO ON THIS ISSUE?

A: YES.

Q: ON THIS ISSUE?

A: YES.

Q: THEN YOU HAVE NOTICED OF COURSE THAT WITHIN THE PAGES OF THE PROSECUTION'S BRIEF IS THE DULUTH, MINNESOTA, POWER AND CONTROL WHEEL?

A: YES.

Q: IS THAT SOMETHING TO WHICH YOU MAKE REFERENCE IN YOUR PRACTICE?

A: YEAH, WE MAKE -- WE DO MAKE REFERENCE TO IT IN OUR PRACTICE, YES.

Q: YOU HAVE SAID THAT SYNDROMES OF THIS TYPE INVOLVE ALL ASPECTS OF ATTEMPTS TO CONTROL THE VICTIM BY THE BATTERER, TRUE?

A: YES, YES.

Q: OKAY. ARE YOU AFFILIATED WITH OR FAMILIAR WITH THE AMERICAN PSYCHOLOGICAL ASSOCIATION?

A: YES, I AM.

Q: DO YOU ATTEND THEIR MEETINGS?

A: I AM A MEMBER OF THE AMERICAN PSYCHOLOGICAL ASSOCIATION.

Q: ALL RIGHT, FINE. YOU ARE AWARE OF THE REQUIREMENT IN THE AMERICAN PSYCHOLOGICAL ASSOCIATION THAT FOR A PSYCHOLOGIST TO GIVE AN OPINION RELATING TO AN INDIVIDUAL, A PERSONAL EXAMINATION IS NECESSARY?

A: RIGHT.

Q: TRUE?

A: YES.

Q: HAVE YOU EVER EXAMINED MR. SIMPSON?

A: NO, I HAVE NOT.

Q: HAVE YOU EVER ASKED THE DEFENSE IF THEY HAD ANY COUNTERVAILING EVIDENCE WITH RESPECT TO THE PROFFER YOU HAVE HEARD THAT WOULD TEND TO CAST DOUBT UPON THE INCIDENTS ALLEGED?

A: NO, I HAVE NOT.

Q: OKAY. DID ANYBODY GIVE YOU THE GRAND JURY TESTIMONY OF A MAN NAMED KEITH ZLOMSOWITCH?

A: I HAVE READ THAT.

Q: YOU HAVE READ IT?

A: YES.

Q: OKAY. IF MR. SIMPSON HAD BEEN SENT TO YOU IN THE ORDINARY COARSE OF YOUR PRACTICE --

A: UH-HUH.

Q: -- THAT WOULD PROBABLY HAVE BEEN AS A RESULT OF THE ORDER OF A JUDGE OR BECAUSE HE FELT HE HAD A PROBLEM AND WANTED YOUR HELP?

A: THAT'S CORRECT.

MR. GORDON: CALLS FOR SPECULATION AND IS IRRELEVANT, YOUR HONOR.

THE COURT: OVERRULED.

Q: BY MR. BAILEY: HAVE YOU FREQUENTLY BEEN CALLED UPON TO GIVE OPINION IN CASES WHERE YOU'VE HAD NO CONTACT WITH EITHER OF THE SUBJECTS?

A: I WOULDN'T SAY FREQUENTLY. I HAVE OCCASIONALLY BEEN.

Q: ALL RIGHT.

A: YES.

Q: WOULD YOU AGREE THAT IN ORDER TO HAVE A BATTERER IT IS NECESSARY TO HAVE A BATTERED WOMAN ON THE OTHER SIDE?

A: YES.

Q: OKAY. DO YOU KNOW OF ANY INSTANCE WHERE NICOLE BROWN SIMPSON, THE DECEDENT, WAS EVER DESCRIBED AS OR DIAGNOSED AS A BATTERED WOMAN?

A: DIAGNOSED, NO.

Q: DID SHE EVER GET ANY TREATMENT THAT YOU KNOW OF?

A: NOT TO MY KNOWLEDGE.

MR. GORDON: OBJECT, YOUR HONOR. THIS GOES BEYOND THE SCOPE OF THIS HEARING AND IT GOES BEYOND THE SCOPE OF THE TESTIMONY THAT HAS BEEN PRESENTED.

THE COURT: WE ARE BEYOND THE SCOPE OF HIS EXPERT TESTIMONY IN A GENERAL SENSE. YOU ARE GOING INTO SPECIFICS REGARDING THIS CASE. DO YOU REALLY WANT TO GET INTO THAT?

MR. BAILEY: MAY I SUGGEST THIS, YOUR HONOR? I GATHER THAT WHAT THE PROSECUTION IS INVITING THE COURT TO DO IS TO SAY THAT EVEN IF INADMISSIBLE ON OTHER GROUNDS AS PART OF A SYNDROME, THESE ACTS SHOULD BE KNITTED TOGETHER AND THEREFORE COME IN. IF I AM MISTAKEN, I'M SURE I WILL BE CORRECTED, BUT I HAVE REASON TO BELIEVE THAT IS WHAT COUNSEL IS ABOUT. IN ORDER TO ASSESS WHETHER OR NOT YOU WOULD WANT TO MAKE SUCH A RULING AND THE PERIL THAT YOU MIGHT HAVE TO STRIKE IT LATER ON IF THE FACTS TURNED OUT TO BE DIFFERENT, I SIMPLY WOULD LIKE TO TEST THE SITUATION WITH THIS EXPERT.

MR. GORDON: MAY I RESPOND, YOUR HONOR?

THE COURT: YES.

MR. GORDON: AND I DO FEEL IT A HONOR TO BE ABLE TO STAND UP IN COURT AND DISAGREE WITH MR. BAILEY. IN THEIR BRIEF THE DEFENSE BROUGHT FORTH A SOCIAL SCIENCE ARGUMENT BASED ON, AS WE SAW IN COURT LAST WEEK, WE DON'T KNOW WHAT EMPIRICAL DATA, AND IN THEIR BRIEF AND IN THEIR ARGUMENT AND IN MR. UELMEN'S ARGUMENT THEY HAVE ASKED THIS COURT TO MAKE FINDINGS SPECIFICALLY LINKED TO THAT ARGUMENT, NOT AS TO THE SPECIFICS OF THIS CASE, BUT AS TO THIS -- THAT ARGUMENT. WE ARE PRESENTING EVIDENCE, I HAVE BEEN ARGUING TO THIS COURT FOR THE PAST TWO DAYS, WITH REGARD TO THE IMPORTANCE OF THAT ARGUMENT IN THE HEARING HERE AND HOW IN A GENERAL SENSE THAT IN A GENERAL THEORY THESE INCIDENTS -- STRIKE THAT. IN A GENERAL SENSE, IN A GENERAL THEORY, HOW DIFFERENT TYPES OF BATTERING MIGHT BE CONNECTED TOGETHER WITHIN A DESIGN; NOT AS TO THE SPECIFICS OF THE CASE HERE.

THE COURT: ALL RIGHT.

MR. GORDON: GOING TO THAT LIMITED PURPOSE.

THE COURT: ALL RIGHT. MR. BAILEY, I'M GOING TO SUSTAIN THE OBJECTION AT THIS POINT.

MR. BAILEY: ALL RIGHT.

Q: IS IT PART OF YOUR SCIENCE, DOCTOR, TO TRY TO IDENTIFY CHARACTERISTICS OF BOTH VICTIMS AND BATTERERS?

A: YES, IT IS.

Q: IN SUCH CASES?

A: YES.

Q: SO THAT YOU FORMULATE EVENTUALLY, DO YOU NOT, SORT OF A CHECKLIST?

A: THAT'S RIGHT.

Q: ARE YOU FAMILIAR WITH DR. LENORE WALKER?

A: YES, I AM.

Q: DO YOU KNOW HER?

A: YES, I DO.

Q: ARE YOU FAMILIAR WITH HER WRITINGS?

A: YES, I AM.

Q: ARE YOU FAMILIAR WITH HER CHECKLIST?

A: YES, I AM.

Q: ALL RIGHT. DO YOU AGREE WITH THEM?

A: (NO AUDIBLE RESPONSE.)

Q: IN YOUR OWN PRACTICE?

A: GENERALLY, YEAH. YEAH.

Q: OKAY. THERE ARE CERTAIN THINGS YOU WOULD EXPECT TO FIND IN A PERSON THAT HAS BEEN BATTERED, CORRECT?

A: UH-HUH.

Q: AS SET FORTH IN HER BOOK THE BATTERED WOMAN, WHICH IS VERY WELL-KNOWN IN YOUR PROFESSION, IS IT NOT?

A: YES, IT IS.

Q: AND SHE HAS DETAILED WHAT YOU SHOULD LOOK FOR, BOTH AS TO THE VICTIM AND THE BATTERER, THAT IS, CHARACTERISTICS -- I BELIEVE COMMON CHARACTERISTICS OF BATTERED WOMEN, SHE LISTS NINE. ARE YOU FAMILIAR WITH THEM?

A: RIGHT. WELL, MY MEMORY COULD USE A LITTLE BIT OF REFRESHING ACTUALLY IN TERMS OF THOSE NINE CHARACTERISTICS.

Q: WOULD YOU LIKE A COPY OF THE BOOK?

A: YES.

MR. BAILEY: OKAY.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. BAILEY: MAY I APPROACH THE WITNESS, YOUR HONOR?

THE COURT: YOU MAY.

THE WITNESS: THANK YOU. UH-HUH.

Q: BY MR. BAILEY: WHAT IS THE FIRST CHARACTERISTIC?

A: HAS LOW SELF-ESTEEM.

Q: DO YOU HAVE ANY INFORMATION OR EVIDENCE BEFORE YOU AS TO WHETHER OR NOT THE VICTIM IN THIS CASE HAD LOW SELF-ESTEEM?

A: I HAVE NO INFORMATION.

MR. GORDON: YOUR HONOR, OBJECTION. WE ARE GOING INTO THE SAME MATTER OF INQUIRY, UNLESS YOU WANT TO OPEN IT UP TO ALL THIS, BUT WE ARE GOING INTO EXACTLY THE SAME LINE OF INQUIRY.

MR. BAILEY: MAY IT PLEASE THE COURT, COUNSEL FOR THE PEOPLE JUST DETAILED THINGS THAT ARE LOOKED FOR, SCALES THAT ARE USED, MULTIPLICATIONS THAT ARE USED TO TRY AND IDENTIFY BATTERERS. I THINK I AM ENTITLED TO GO INTO THAT SUBJECT AS FAR AS HE'S THE ONE THAT PUT THE POWER WHEEL IN HIS BRIEF.

MR. GORDON: AS TO DIAGNOSING A PERSON, UNLESS WE WANT TO GET INTO TESTIMONY ON BOTH SIDES AS TO PROFILING THIS PARTICULAR DEFENDANT AND THIS VICTIM. THAT IS A VERY DIFFERENT SET OF FACTS THAN SAYING ARE THERE CERTAIN -- THESE ARE NINE CHARACTERISTICS OF A BATTERED WOMAN. WOULD YOU AGREE THAT THESE ARE NINE CHARACTERISTICS OF A BATTERED WOMAN IN ANY GENERAL POPULATION OF BATTERED WOMEN? I DON'T HAVE ANY OBJECTION TO THAT QUESTION WHATSOEVER. TO NOW TAKE ANOTHER STEP AND SAY LET'S LOOK AT THIS CASE WOULD BE LIKE FOR ME TO SAY DO YOU HAVE AN OPINION ABOUT MR. SIMPSON RIGHT NOW, WHICH I DIDN'T DO. THAT IS TWO VERY, VERY DIFFERENT THINGS, AND THE SECOND ONE ISN'T GOING TO BE OFFERED HERE.

MR. BAILEY: IF IT PLEASE THE COURT, I HAVE ALREADY DEVELOPED HE COULD NOT ETHICALLY GIVE AN OPINION ABOUT MR. SIMPSON BECAUSE HE HAS NEVER EXAMINED HIM, AND I DON'T INTEND TO ASK THAT QUESTION. I'M ASKING ABOUT A SCIENCE OF STUDYING AND DEFINING BATTERED WOMEN AND BATTERERS WHICH THE PROSECUTION HAS MADE RELEVANT.

THE COURT: ALL RIGHT. LET'S LEAVE IT AT THAT.

MR. BAILEY: ALL RIGHT.

Q: WOULD YOU SIMPLY READ THEN THE BALANCE OF THE CHARACTERISTICS THAT ARE DEFINED.

A: OKAY. DR. WALKER'S LIST IS THAT BATTERED WOMEN HAVE LOW SELF-ESTEEM, THAT THEY BELIEVE ALL THE MYTHS ABOUT BATTERING RELATIONSHIPS, THAT THEY ARE TRADITIONALISTS ABOUT THE HOME, THEY STRONGLY BELIEVE IN FAMILY UNITY AND PRESCRIBED FEMININE SEX-ROLE STEREOTYPE, THEY ACCEPT RESPONSIBILITY FOR THE BATTERER'S ACTIONS, THEY SUFFER FROM GUILT, YET DENY THE TERROR AND ANGER THAT THEY FEEL, THAT THEY PRESENT A PASSIVE FACE TO THE WORLD BUT HAVE THE STRENGTH TO MANIPULATE THEIR ENVIRONMENT ENOUGH TO PREVENT FURTHER VIOLENCE AND BEING KILLED, THAT THEY HAVE SEVERE STRESS REACTIONS WITH PSYCHOPHYSIOLOGICAL COMPLAINTS, AND THAT THEY USE SEX AS A WAY TO ESTABLISH INTIMACY, AND THEY BELIEVE THAT NO ONE WILL BE ABLE TO RESOLVE THEIR PREDICAMENT EXCEPT THEMSELVES.

Q: NOW, TURNING OVER TO PAGE 36, DO WE HAVE A SIMILAR LIST DEFINING WHAT WE MIGHT EXPECT TO FIND IN A BATTERER?

A: UH-HUH.

Q: ALL RIGHT. AND WHAT ARE THOSE?

A: WE HAVE A LOW SELF-ESTEEM, BELIEVES ALL THE MYTHS ABOUT BATTERING RELATIONSHIPS, IS A TRADITIONALIST BELIEVES IN MALE SUPREMACY AND THE STEREOTYPED MASCULINE SEX ROLE IN THE FAMILY, BLAMES OTHERS FOR HIS ACTIONS, HIS PATHOLOGICALLY JEALOUS, PRESENTS A DUAL PERSONALITY, HAS SEVERE STRESS REACTIONS, DURING WHICH HE USES DRINKING AND WIFE BATTERING TO COPE, FREQUENTLY USES SEX AS AN ACT OF AGGRESSION TO ENHANCE SELF-ESTEEM IN VIEW OF WANING VIRILITY, MAY BE BISEXUAL, DOES NOT BELIEVE HIS VIOLENT BEHAVIOR SHOULD HAVE NEGATIVE CONSEQUENCES.

Q: ALL RIGHT. NOW, DO I CORRECTLY UNDERSTAND THAT AS TO NEITHER THE VICTIM IN THIS CASE NOR THE DEFENDANT HAVE YOU ATTEMPTED TO MAKE ANY ANALYSIS OF THESE CHARACTERISTICS?

A: THAT'S CORRECT.

Q: HAVE YOU MADE ANY REFERENCE IN THE TESTIMONY GIVEN TODAY TO THE SO-CALLED POWER AND CONTROL WHEEL WHICH APPEARS IN THE BRIEF OF THE PEOPLE?

A: NO, I HAVE NOT.

Q: I BELIEVE YOU SAID YOU DO USE THAT, HOWEVER, AND RECOGNIZE IT?

A: I DO -- YEAH, WE USE IT IN OUR TREATMENT GROUPS, THAT'S TRUE.

Q: ALL RIGHT.

A: YEAH.

Q: NOW, IS IT FAIR TO SAY THAT NO SPECIMEN IS LIKELY TO HIT EVERY POINT ON THE CHECKLIST?

A: YES, THAT'S FAIR.

Q: AND THAT SOMEBODY THAT HIT NONE OF THE POINTS ON THE CHECKLIST WOULD PROBABLY BE EXCLUDED AS A CANDIDATE?

A: I WOULD AGREE WITH THAT.

Q: WHAT PERCENTAGE OF POINTS DO YOU LOOK FOR BEFORE YOU THINK YOU MAY HAVE A CANDIDATE THAT NEEDS FURTHER EXAMINATION?

A: WELL, ARE YOU TALKING ABOUT DR. WALKER'S CHECKLIST OR THESE SCALES THAT --

Q: THE DULUTH, MINNESOTA, POWER AND CONTROL WHEEL BLOWN UP OVER HERE A GREAT BIG PICTURE?

A: WE DO NOT USE THAT SCALE OR DIAGNOSTIC PURPOSES. WE USE IT FOR DIDACTIC PURPOSES WITHIN A TREATMENT PURPOSE. FOR DIAGNOSTIC PURPOSES WE USE A VARIETY OF PSYCHOLOGICAL TESTS WHICH HAVE NOT BEEN PRESENTED HERE TODAY AND THAT I HAVE NOT DESCRIBED.

Q: ALL RIGHT. NOW, IN ORDER TO PROPERLY ANSWER QUESTIONS ABOUT THE EXISTENCE OF ANY BATTERING IN THIS CASE --

A: YES.

Q: -- SINCE THE VICTIM S NO LONGER WITH US --

A: YES.

Q: -- YOU WOULD HAVE TO FOCUS YOUR ATTENTION, FOR AN EXAMINATION PURPOSES, ON THE DEFENDANT, CORRECT?

MR. GORDON: OBJECTION, IT IS IRRELEVANT AND BEYOND THE SCOPE.

THE COURT: OVERRULED. YOU CAN ANSWER THE QUESTION.

THE WITNESS: WELL, I THINK UNDER THE CIRCUMSTANCE THAT THE PSYCHOLOGICAL TESTS THAT WE HAVE USED TO DETERMINE WHETHER A MAN HAS WHAT WE CALL PROPENSITY FOR ABUSIVENESS OR NOT WERE NOT DESIGNED TO BE USED WITH A PERSON IN MR. SIMPSON'S CIRCUMSTANCES.

Q: BY MR. BAILEY: OKAY. SO YOU ARE SAYING THEN THAT TO EXAMINE HIM --

A: WOULD NOT BE FAIR. IT WOULD NOT BE FAIR USING THESE TESTS.

Q: OKAY. SO IF THIS WERE YOUR CASE, SO TO SPEAK, AND WE HAD ASKED YOU TO EXAMINE MR. SIMPSON TO GIVE US AN OPINION, THERE ARE NO PSYCHOLOGICAL TESTS THAT YOU WOULD HAVE CAUSED TO BE ADMINISTERED TO LEARN ABOUT HIS PERSONAL TRAITS?

A: I WOULDN'T USE THE ONES THAT WE TRADITIONALLY USED IN OUR RESEARCH TO DIAGNOSE A PROPENSITY FOR ABUSIVENESS WITH A MAN WHO WAS INCARCERATED UNDER THE CONDITIONS THAT MR. SIMPSON IS FACING. I WOULDN'T HAVE FELT THAT WAS FAIR TO HIM AND I WOULDN'T HAVE USED THEM UNDER THOSE CIRCUMSTANCES.

Q: IS IT BECAUSE OF HIS PRESENT CONFINEMENT THAT YOU WOULDN'T USE THEM OR BECAUSE OF THE CHARGES PENDING OR FOR SOME OTHER REASON?

A: A COMBINATION REALLY.

Q: ALL RIGHT.

A: YEAH.

Q: WOULD YOU HAVE EXAMINED HIM PERSONALLY?

A: I WOULD HAVE EXAMINED HIM PERSONALLY, YEAH.

Q: ALL RIGHT. NOW, RELATING ONCE AGAIN TO YOUR EXPERIENCE, AS I UNDERSTAND IT, THE BULK OF IT IS WITH PEOPLE WHO ARE DEFINED AS BATTERERS, EITHER BY THEMSELVES OR BY A COURT?

A: THAT'S CORRECT.

Q: SO THAT WHEN THEY COME TO YOU, YOU KNOW WHAT THEY ARE? YOU ARE NOT ANSWERING THE QUESTION IS THIS PERSON BATTERED?

A: WELL, OKAY. LET ME JUST SORT OF QUALIFY THAT SOMEWHAT. WE HAVE OF COURSE GONE OUT AND COLLECTED CONTROL GROUP DATA FOR OUR TESTS SO WE HAVE ADVERTISED IN NEWSPAPERS. WE'VE GOT BLUE COLLAR MEN, WE HAVE GOT MEN FROM EVERY WALK OF LIFE, BECAUSE WE DON'T WANT TO GIVE THE SCALE OUT TO MEN WHO ARE SELF-DEFINED BATTERERS, SO WE HAVE SAMPLED ACROSS THE BOARD TO CORROBORATE THE SCALES.

Q: OKAY BUT IN HOW MANY CASES IS SOMEONE SENT TO YOU AND YOU HAVE DISCHARGED THEM AS NOT BEING A BATTERER? IN OTHER WORDS, A MISTAKE?

A: FOR RESEARCH PURPOSES OR TREATMENT PURPOSES?

Q: TREATMENT.

A: UMM, I WOULD SAY 15 PERCENT OF THE CASES WE RECEIVE MAYBE.

Q: DO NOT NEED WHATEVER IT IS YOU OFFER, IN YOUR JUDGMENT, AND AWAY THEY GO?

A: YEAH, YEAH.

Q: HAVE YOU DONE STUDIES OR READ ABOUT STUDIES WHERE THERE WAS AN ATTEMPT TO PREDICT, FROM INFORMATION GAINED ABOUT A BATTERER, AS TO WHAT FUTURE CONDUCT THERE MIGHT BE?

A: YES. IN FACT, WE HAVE DONE ONE.

Q: UH-HUH.

A: UH-HUH.

Q: AND WHAT KIND OF ACCURACY HAVE YOU BEEN ABLE TO DEMONSTRATE?

A: WELL, THIS IS -- I HOPE YOU DON'T MIND MY USING THE TERM POSTDICTION STUDY.

Q: POST WHAT?

A: POSTDICTION STUDY, A RETROSPECTIVE PREDICTION STUDY. IN OTHER WORDS, WHAT I MEAN IS THAT WE GO OUT AND COLLECT ALL THE DATA ON THE MEN THAT WE THINK ARE ABUSIVE. SOME OF THEM ARE IN TREATMENT GROUPS AND SOME OF THEM ARE MEN THAT HAVE ANSWERED NEWSPAPER ADS. WE DO THE PSYCHOLOGICAL PROFILES ON THESE MEN AND THEY WE TRY TO PREDICT WHETHER THEIR WIVES ARE GOING TO TRY TO CLASSIFY THESE MEN AS ABUSIVE OR NOT. OUR ACCURACY RATE IS AROUND 88 PERCENT.

Q: THAT WAS NOT THE THRUST OF MY QUESTION, BUT PERHAPS I DIDN'T WORD IT TOO ARTFULLY?

A: OKAY.

Q: THESE ARE THE VICISSITUDES OF GIVE AND TAKE.

A: OKAY.

Q: WHAT I WANT TO KNOW IS, IS IT PART OF YOUR RESPONSIBILITY, WHEN YOU TREAT SOMEONE WHO HAS ALLEGEDLY MADE SOME KIND OF THREAT OR ENGAGED IN SOME KIND OF VIOLENCE, TO PREDICT WHETHER IT WILL ESCALATE TO ITS ULTIMATE FORM?

A: UMM, OKAY, I UNDERSTAND YOU. YES.

Q: OKAY.

A: YES, IT IS.

Q: NOW, WHAT DO THOSE STUDIES SHOW ABOUT YOUR ABILITY TO EXAMINE SOMEONE AND PROJECT WHETHER THEY WILL OR WILL NOT ENGAGE IN SERIOUS --

A: I DON'T HAVE EMPIRICAL DATA ON THAT I'M AFRAID.

Q: THAT REALLY HASN'T BEEN DONE?

A: NO.

Q: OKAY. SUPPOSING IN THE COURSE OF RUNNING YOUR CHECKLISTS, YOUR OWN OR DR. WALKER'S OR WHICHEVER ONES YOU USE --

A: RIGHT.

Q: -- YOU FIND PEOPLE WHO ARE RADICALLY THE OPPOSITE OF THE TYPICAL BATTERER.

A: RIGHT.

Q: IN SOME CATEGORY.

A: RIGHT.

Q: AS AN EXAMPLE --

A: UH-HUH.

Q: -- I THINK YOU HAVE SAID IN THE -- AND THE LITERATURE SAYS THAT BATTERERS LIKE TO CONTROL ECONOMICALLY THEIR VICTIMS TO A DEGREE --

A: UH-HUH.

Q: -- SO THAT THEY CAN REWARD AND PUNISH, GIVE AND TAKE AND KEEP THEM UNDER THEIR THUMB?

A: UH-HUH.

Q: NOW, IF YOU FIND SOMEONE WHO DOES JUST THE OPPOSITE --

A: UH-HUH.

Q: -- GENEROUS, GIVING, PASSES TITLE ON POSSESSIONS, GIVES BEFORE BEING ASKED, ET CETERA, DOES THAT FLY IN THE FACE OF BATTERER'S SYNDROME OR CAN IT BE AN EXCEPTION?

A: WELL, IT IS AN INTERESTING QUESTION. WHAT -- I HAVE TO KNOW A LITTLE BIT MORE ABOUT THAT PERSON AND I WOULD HAVE TO KNOW A LITTLE BIT MORE ABOUT THE MOTIVATION IN GIVING, BECAUSE I'M SURE YOU ARE AWARE, THE MOTIVES FOR GIVING ARE NOT ALWAYS WHAT THEY APPEAR TO BE. SOMETIMES THERE CAN BE A CONTROL MOTIVE BEHIND THE GIVING OF MONEY AS WELL, SO IT IS HARD TO ANSWER THAT QUESTION IN THE ABSTRACT.

Q: ALL RIGHT. WELL, SIMPLY PUT, IF I LOAN YOU MONEY, I HAVE SOME CONTROL OVER YOU, CORRECT?

A: THAT'S RIGHT, OR EVEN IF YOU GAVE ME MONEY YOU MIGHT HAVE SOME CONTROL OVER ME BECAUSE I WOULD OWE YOU SOMETHING. I WOULD FEEL INDEBTED TO YOU.

Q: A MORAL OBLIGATION?

A: THAT'S RIGHT.

Q: SUPPOSING I REPEATEDLY GIVE YOU MONEY AND YOU DON'T GIVE ME ANY MONEY BACK?

A: UH-HUH.

Q: I KNOW THAT IS A DELECTABLE THING TO CONTEMPLATE, BUT JUST TAKE IT HYPOTHETICALLY.

A: I GUESS I WOULD HAVE TO KNOW MORE ABOUT THE REASONS WHY YOU ARE GIVING ME MONEY. I MEAN, IT IS REALLY HARD TO COMMENT ON AN ABSTRACT CASE.

Q: SUPPOSING YOU ARE A WOMAN AND I LOVE YOU?

A: PARDON ME?

Q: SUPPOSING YOU ARE A WOMAN AND I LOVE YOU?

A: OKAY. I'M A WOMAN AND YOU LOVE ME AND YOU ARE GIVING ME THIS MONEY OVER AND OVER AND OVER.

Q: I'M GIVING YOU A CONDOMINIUM, A PORSCHE, A MERCEDES AND A FERRARI, ALL IN YOUR NAME. IS THAT ECONOMIC CONTROL?

A: ARE YOU -- I GUESS MY QUESTION IS IS THERE ARE ANY STRINGS ATTACHED?

Q: NO.

A: NO STRINGS ATTACHED?

Q: NO. WE AREN'T EVEN MARRIED.

A: I CAN DO WHATEVER I WANT TO DO.

Q: WE ARE NOT EVEN MARRIED. YOU CAN TAKE OFF.

A: IF THERE WERE ABSOLUTELY NO STRINGS ATTACHED, THEN I WOULD AGREE WITH YOU, THAT THAT WOULD SEEM TO BE MAGNANIMOUS TO THE NTH DEGREE AND NOT A TYPE OF CONTROL.

Q: ALL RIGHT. OKAY.

A: YES.

Q: NOW, YOU HAVE, I BELIEVE, SAID THAT TERMINATION OF A RELATIONSHIP WHETHER BY DIVORCE OR REJECTION OR ANYTHING ELSE, IT IS AN IMPORTANT ELEMENT USUALLY FOR BATTERERS THAT MAY TRIGGER THEIR CONDUCT?

A: YES, IT MAY.

Q: AND THAT JEALOUSY AND OFTEN VIOLENCE RESULTING IN JEALOUSY RESULTING IN TURN FROM THE INSECURITY OF A PERSONAL IS OFTEN TYPICAL AND AGAIN A TRIGGER OF SOME VIOLENCE?

A: UH-HUH.

Q: HOW MANY OF THE BATTERERS THAT YOU EXAMINED HAD COME UPON THEIR EX-WIVES PERFORMING A SEX ACT AND DONE NOTHING ABOUT IT?

A: DON'T HAVE THOSE NUMBERS.

Q: NEVER HAPPENED IN YOUR EXPERIENCE, DID IT?

A: OH, I WOULDN'T -- NO, I WOULDN'T SAY IT NEVER HAPPENED. I JUST WOULD SAY, NO, I CAN RECALL IT BEING RECOUNTED TO ME IN TREATMENT GROUPS, OKAY, BUT WE NEVER COUNTED THEM UP. WE NEVER MADE A SYSTEMATIC STUDY.

Q: BUT IS THAT TYPICAL CONDUCT FOR A PERSON WHO IS JEALOUS?

A: WELL, AGAIN, I GUESS IT REALLY DEPENDS ON HOW THE SITUATION IS BEING HANDLED. I MEAN, IF I JUST SIMPLY WALKED AWAY FROM IT AND WAS UNFAZED BY IT, NO, IT WOULD BE ATYPICAL.

Q: BUT YOU DON'T DO THAT IN THIS CASE. YOU COME BACK THE NEXT DAY AND VERY CORDIALLY GREET THE BENEFICIARY OF THE FELLATIO.

A: UH-HUH.

Q: THAT IS A PRETTY GOOD SHOW OF EQUANIMITY, ISN'T IT?

A: TOWARD THE MAN.

Q: AND THE SAME WITH THE WOMAN, NO ANGER, NO CRITICISM, EXCEPT FOR THE WELFARE OF THE CHILDREN. YOU READ THAT, DID YOU?

MR. GORDON: ASSUMES A FACT NOT IN EVIDENCE AND MISSTATES THE EVIDENCE.

THE COURT: MR. BAILEY, I THINK WE ARE DRIFTING BACK OVER.

MR. BAILEY: VERY WELL.

THE COURT: IN FACT, WE ARE MORE THAN DRIFTING. WE ARE RIGHT IN THE MIDDLE OF IT.

MR. BAILEY: YOUR HONOR, I WILL MAKE FOR THE FLANK QUICKLY.

THE COURT: PLEASE.

Q: BY MR. BAILEY: IF ONE WERE TO HYPOTHETICALLY LEARN FROM A CLOSE FRIEND THAT HE HAD BEEN HAVING RELATIONS WITH AN EX-WIFE AND NOT REACT, THAT WOULD BE SOMEWHAT ATYPICAL FOR A BATTERER, WOULD IT NOT?

A: LEARNED FROM A CLOSE FRIEND THAT HIS WIFE WAS HAVING A RELATIONSHIP?

Q: YOU AND I ARE BUDDIES. I AM GETTING DIVORCED. I AM DIVORCED. AND YOU AND I HAVE A COUPLE ONE NIGHT AND SAY, YOU KNOW, I WAS WITH GRETA LAST NIGHT AND SHE WAS GREAT.

A: RIGHT.

Q: AND I SAID OKAY. SHE IS FREE. YOU KNOW, SHE IS DIVORCED. NO REACTION. ISN'T THAT ATYPICAL?

MR. GORDON: THAT ASSUMES A FACT NOT IN EVIDENCE IN THIS CASE.

MR. BAILEY: I'M ASKING A HYPOTHETICAL.

THE COURT: OVERRULED.

THE WITNESS: HYPOTHETICAL QUESTION?

Q: BY MR. BAILEY: YES.

A: IT I WOULD ATYPICAL.

MR. COCHRAN: I COULDN'T HEAR THAT ANSWER.

THE WITNESS: IT WOULD BE ATYPICAL.

Q: BY MR. BAILEY: UNUSUAL, NOT CONSISTENT?

A: YES.

Q: YOU HAVE I THINK FOCUSED YOUR MAIN CONCERN IN BATTERERS ON THE NEED TO CONTROL ECONOMICALLY AND IN OTHER WAYS, RIGHT?

A: UH-HUH.

Q: WHEN ONE SHOWS NO INTEREST IN THE CONDUCT OF THE ALLEGED OBJECT OF THE BATTERING, IS THAT NOT INCONSISTENT WITH THE SYNDROME?

A: IF THE BATTERER SHOWS NO INTEREST IN THE WOMAN?

Q: RIGHT.

A: THAT WOULD BE INCONSISTENT.

Q: HAS REASON TO BELIEVE SHE IS COMING IN AT 3:00, 4:00 OR 5:00 IN THE MORNING, BUT DOESN'T DO OR SAY ANYTHING ABOUT IT, THAT IS INCONSISTENT, ISN'T IT, WITH THIS FIERCE JEALOUSY THAT IS PART OF WHAT YOUR STUDY?

A: UH-HUH.

THE COURT: EXCUSE ME, DOCTOR. WHEN YOU SAY "UH-HUH" DO YOU MEAN YES OR NO?

THE WITNESS: YES.

Q: BY MR. BAILEY: IF WE CAN SURMOUNT THE BATTERY OF OUR COMMON LANGUAGE.

A: YES.

Q: DOES IT MAKE ANY DIFFERENCE, WHEN YOU EVALUATE ONE OF THESE CASES, AS TO WHAT THE HISTORY OF THE SUBJECT IS?

A: YES, IT DOES.

Q: OKAY.

A: YOU MEAN THE MAN'S PERSONAL HISTORY OR THE VICTIM'S HISTORY, THE HISTORY OF THE RELATIONSHIP?

Q: YES.

A: THEY ALL ARE IMPORTANT.

Q: IF ONE WERE IN THE BUSINESS WHERE OTHERS WERE CONTINUALLY TRYING TO BEAT, HURT AND BREAK HIM AND ONE DIDN'T REACT IN ANGER, WOULDN'T THAT BE INCONSISTENT WITH THE KIND OF FRAIL PERSONALITY THAT WE FIND IN BATTERERS?

A: NOT NECESSARILY, BECAUSE ONE OF THE THINGS I THINK THAT IS TRUE, AND DR. WALKER MENTIONS THIS ALSO IN HER CHECKLIST, THAT IS, THERE DOES SEEM TO BE ALMOST A KIND OF DUAL PERSONALITY WHERE THE RAGE IS DIRECTED PRIMARILY TOWARDS AN INTIMATE WOMAN, SO THESE MEN DON'T ALWAYS DEMONSTRATE ANGER AGAINST OTHER MEN, EVEN MEN WHO ARE ENGAGED IN PHYSICAL PURSUITS WITH THEM.

Q: BEATING UP ON THEM?

A: YEAH. THAT'S RIGHT. THAT WOULD NOT -- BECAUSE A MAN IS PHYSICALLY ABUSIVE AT HOME DOES NOT NECESSARILY MEAN THAT HE WOULD SHOW AN ANGER RESPONSE IN HIS INTERACTION WITH OTHER MEN.

Q: EVEN THOUGH THEY WERE PHYSICALLY TRYING TO HURT HIM AND HE KNEW IT?

A: I MEAN IF HE HAS TO DEFEND HIMSELF, YES.

Q: I'M NOT TALKING ABOUT DEFEND HIMSELF.

A: OKAY.

Q: YOU ARE COMING FROM A COUNTRY FAMOUS FOR RATHER A ROUGH SPORT CALLED ICE HOCKEY?

A: THAT'S RIGHT.

Q: WHICH CAN BE VERY ASSAULTIVE?

A: THAT'S RIGHT.

Q: AND IS CHARACTERIZED BY THE OUTBREAK OF LOSSES OF TEMPER BY THE PLAYERS WHO FIGHT, TRUE?

A: UH-HUH.

Q: EVEN THOUGH IT IS AGAINST THE RULES TO FIGHT, THEY DO IT?

A: IT IS DEBATEABLE. THERE SEEMS TO BE A KIND OF PERMISSION TO DO CERTAIN THINGS AND NOT DO CERTAIN OTHER THINGS. IF YOU KICK ANOTHER PLAYER WITH A SKATE, FOR EXAMPLE, THAT IS A NO-NO, BUT IF YOU GET INTO A FIST FIGHT WITH SOMEONE YOUR SIZE AT THE BLUE LINE, THEN THE REFEREES LET THAT GO BECAUSE IT IS GOOD FOR THE GATE, SO --

Q: IT IS GOOD FOR THE GATE?

A: IT IS KIND OF AGAINST THE RULES AND IT IS KIND OF NOT AGAINST THE RULES.

Q: IF YOU WHACK HIM HARD ENOUGH YOU CAN GET TRIED FOR MANSLAUGHTER?

A: YES.

Q: DO YOU KNOW WHAT THE LADY BING TROPHY IS, DOCTOR?

A: YES, I DO.

Q: IS THAT NOT AWARDED TO THE PLAYER IN THE NATIONAL HOCKEY LEAGUE WHO SHOWS THE LEAST PROPENSITY --

A: GREATEST SKILLS WITH THE LEAST PROPENSITY FOR VIOLENCE.

Q: NOT MANY PENALTY MINUTES?

A: THAT'S RIGHT.

Q: DO YOU KNOW THE CAPTAIN OF A FOOTBALL TEAM, HOW HE GETS APPOINTED, HOW HE GETS SELECTED?

A: NOT EXACTLY.

Q: WELL, HYPOTHETICALLY ASSUME --

A: YEAH.

Q: -- THAT HE IS SELECTED BECAUSE OF HIS GENERAL EQUANIMITY IN THE FACE OF CONTINUOUS ASSAULTS AND HIS GOOD SPORTSMANSHIP AND FAIRNESS AS WELL AS HIS ABILITY.

A: UH-HUH.

Q: WOULD THAT BE CONSISTENT WITH THE KIND OF PERSON YOU FIND SITTING AT YOUR TABLE?

A: NOT NECESSARILY.

Q: IN OTHER WORDS, WOULD YOU BE SURPRISED TO FIND THE WINNER OF THE LADY BING TROPHY BEING AN ASSAULTIVE PERSON?

A: UMM, THE LAST BOOK I WROTE ON THIS, THE PRINCIPLE DANCER OF THE NEW YORK CITY BALLET HAD JUST BEEN ARRESTED FOR WIFE ASSAULT. I WOULD NOT BE SURPRISED.

Q: OKAY. THAT IS TYPICAL OR WAS IT SO EXTRAORDINARY YOU PUT IT IN YOUR BOOK?

A: NO, I JUST PUT IT IN THE BOOK TO SHOW THE FACT THAT THERE REALLY ARE TWO PERSONALITIES AT WORK HERE AND YOU SIMPLY CAN'T DRAW CONCLUSIONS ABOUT THE INTIMATE PERSONALITY FROM WHAT GOES ON IN TRANSACTIONS OUTSIDE THE HOME.

Q: ALL RIGHT. BUT THAT IS IN CASES WHERE YOU FIND IN FACT A DUAL PERSONALITY, CORRECT?

A: RIGHT, BUT EVEN DR. WALKER IN HER LIST MENTIONED THIS KIND OF DUAL PERSONALITY AS BEING TYPICAL OF BATTERERS.

Q: YES?

A: YES.

Q: CAN BE?

A: YES.

Q: BUT IF THE DUAL PERSONALITY ISN'T THERE, THEN THE PEACEFUL CONDUCT IS CONTRAINDICATED IN A BATTERER, IS IT NOT?

A: RIGHT.

Q: IF YOU CAN'T TURN IT ON AND OFF?

A: WELL, YES, BUT I THINK THE POINT I'M TRYING TO MAKE IS THAT IT IS FREQUENTLY THE CASE THAT THE DUAL PERSONALITY IS THERE AND TO DRAW CONCLUSIONS OR INFERENCES ABOUT WHAT THE MAN IS LIKE IN TERMS OF HIS RELATIONSHIP WITH HIS WIFE ON THE BASIS OF HOW HE IS AND HIS INTERACTIONS WITH MEN IN THE PUBLIC WORLD IS ERRONEOUS AND THAT IS SORT OF ONE OF THE MYTHS THAT THE RESEARCH IN THIS AREA IS TRYING TO DISPEL.

THE TWO PERSONALITIES ARE -- YOU SIMPLY DIDN'T PREDICT ONE FROM THE OTHER.

Q: WHAT YOU ARE SAYING IS THAT IN SOME PEOPLE THOSE TWO OPPOSITES CAN LIVE TOGETHER, IN NORMAL PEOPLE THEY DON'T LIVE TOGETHER, PEOPLE WITH ONE PERSONALITY?

A: YES, THAT'S CORRECT.

Q: OKAY. NOW, HAS IT EVER BEEN PART OF YOUR BUSINESS TO DEAL NOT WITH BATTERERS AS SUCH, BUT WITH PEOPLE WHO HAVE COMMITTED HOMICIDE?

A: I HAVE ON OCCASION DEALT WITH PEOPLE WHO COMMITTED HOMICIDE, YES.

Q: ARE YOU AWARE OF ANY OF THE CHECKLISTS THAT HAVE BEEN DEVELOPED AS TO WHAT TO LOOK FOR IN PEOPLE WHO HAVE RECENTLY COMMITTED A HOMICIDE?

A: YES, I AM.

MR. GORDON: OBJECT AS TO VAGUE AS TO WHAT TYPE OF HOMICIDE AND THEREFORE RELEVANCE OBJECTION.

THE COURT: OVERRULED.

THE WITNESS: I'M FAMILIAR WITH DR. DEITZ' CHECKLIST, FOR EXAMPLE, YES.

Q: BY MR. BAILEY; IN YOUR FIELD MOST OF THE HOMICIDES THAT YOU WOULD COME IN CONTACT WITH WOULD BE RELATIONSHIP HOMICIDES, WOULD THEY NOT, AS OPPOSED TO PAID ASSASSINATIONS?

A: THAT'S RIGHT.

Q: VEHICULAR?

A: THAT'S RIGHT.

Q: ET CETERA?

A: THAT'S RIGHT.

Q: OKAY. PEOPLE WHO LOST THEIR TEMPER OR WORSE?

A: THAT'S RIGHT.

Q: AND IS IT FAIR TO SAY THAT THERE ARE SOME DEFINITIONS OF PERSONALITY TRAITS, NOT PERSONALITY, BUT TRAITS OR ACTIONS OR CONDUCT, THAT ARE LOOKED FOR --

A: YES.

Q: -- WHEN HOMICIDE HAS BEEN PERPETRATED AND IT IS KNOWN THAT THIS PERSON IS THE PERPETRATOR?

A: YES.

Q: CAN YOU TELL US JUST OFFHAND HOW MANY PEOPLE YOU HAVE EXAMINED THAT HAVE RECENTLY COMMITTED A HOMICIDE, SAY, 48, 72 HOURS, SOMETHING LIKE THAT, IN A WEEK?

A: IN THE LAST 48 OR 72 HOURS?

Q: OR LAST WEEK WHILE THE SYMPTOMS ARE STILL PRESENT?

A: I HAVE --

MR. GORDON: OBJECT TO THAT. THAT ASSUMES A FACT NOT IN EVIDENCE.

Q: BY MR. BAILEY: HYPOTHETICALLY?

MR. GORDON: WITH REGARDS TO SOME TYPE OF SYMPTOMS BEING PRESENT? ALSO RELEVANCE OBJECTION TO THIS TYPE OF QUESTION.

THE COURT: OVERRULED. YOU CAN ANSWER THE QUESTION.

THE WITNESS: WELL, I HAVE INTERVIEWED FOUR PEOPLE WHO HAVE RECENTLY -- WHO HAVE RECENTLY COMMITTED HOMICIDES.

Q: BY MR. BAILEY: AND DID YOU FIND CERTAIN CHARACTERISTICS ATYPICAL OF THEIR FORMER PERSONALITY THAT WERE PRESENT THAT YOU COULD TRIBUTE TO THE EXPERIENCE?

A: THEY WERE SLIGHTLY -- WELL, THE PROBLEM IS THEY WERE REALLY SORT OF DIFFERENT HOMICIDES. TWO OF THEM WERE PARRICIDES. ONE OF THEM WAS A MAN WHO KILLED HIS WIFE AND TWO OF HIS KIDS AND THEN TRIED TO KILL HIMSELF AND THE GUN WOULDN'T FIRE. SO IT IS HARD TO SORT OF GO ACROSS COMMON CHARACTERISTICS FOR ALL OF THESE CASES.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

Q: BY MR. BAILEY: WOULD YOU SAY THAT A TRAINED PERSON IN YOUR FIELD OR IN THE FIELD OF PSYCHIATRY, WHICH IS CLOSELY RELATED, IS IT NOT, WHO HAD INTERVIEWED 400 PEOPLE WHO HAD JUST COMMITTED A HOMICIDE WOULD BE OF VALUE IN ANALYZING THE PERSON YOU HAD BEFORE YOU?

A: THEY SHOULD KNOW SOMETHING ABOUT IT.

Q: THANK YOU. NOW, I BELIEVE IN YOUR DIRECT EXAMINATION YOU RELATED THE FACT AND YOU CERTAINLY HEARD ARGUMENT HERE THAT THE GAPS IN INCIDENTS MAY OR MAY NOT BE RELEVANT IN THE QUEST FOR AN ANSWER TO THE QUESTION OF BATTERING, TRUE?

A: YES, YES.

Q: ARE YOU SAYING THAT EVEN THOUGH PEOPLE ARE INTERACTING ON A REGULAR BASIS THAT THE INCIDENTS OF VIOLENCE MAY BE VERY WIDELY SPACED?

A: THE INCIDENTS OF VIOLENCE MAY BE WIDELY SPACED WHILE OTHER FORMS OF ABUSE ARE OCCURRING IN THE INTERIM.

Q: OKAY. THE OTHER FORMS BEING THE ECONOMIC ABUSE?

A: AND THE EMOTIONAL ABUSE AND THE CONTROL.

Q: OKAY. DID YOU, IN REVIEWING MATERIAL IN THIS CASE, HAVE HANDED TO YOU ANY DEPOSITIONS FROM THE DIVORCE PROCEEDINGS, JUST YES OR NO?

A: YES, I DID.

Q: INCLUDING THAT OF NICOLE BROWN SIMPSON?

A: YES.

Q: ALL RIGHT. DID YOU EXAMINE SOME DOCUMENTS THAT HAVE BEEN OFFERED UP BY THE PROSECUTION AS EXHIBITS IN THIS CASE, THOSE BEING LETTERS WRITTEN BY THE DEFENDANT AND STIPULATED TO AS HIS HANDWRITING, TO THE VICTIM OF THE 1989 INCIDENT?

A: YES, I DID.

Q: ALL RIGHT. AND DID YOU FIND THAT AS TO ONE OF THOSE, AN OFFER WAS MADE?

A: YES.

Q: "IF I EVER HIT YOU AGAIN I WILL TEAR UP THE PRENUPTIAL AGREEMENT"?

A: YES.

Q: DO YOU KNOW HOW MANY MILLIONS THAT AGREEMENT WAS WORTH ON THAT DATE?

A: NO, I DON'T.

Q: ASSUME THAT IT WAS WORTH SEVEN.

A: OKAY.

Q: ASSUME FURTHER THAT THE PROMISE WAS ATTESTED TO BY A LAWYER.

A: UH-HUH.

Q: AND WAS A VALID CONTRACT.

A: UH-HUH.

Q: AND ASSUME THAT FROM THAT DATE UNTIL JUNE 12, 1994, NO CLAIM WAS EVER MADE AGAINST IT.

A: UH-HUH.

Q: WOULDN'T YOU INFER FROM THAT THAT THERE WERE NO INCIDENTS THAT WOULD SUPPORT SUCH A CLAIM?

MR. GORDON: OBJECT -- WITHDRAW THE OBJECTION.

THE WITNESS: I WOULD INFER FROM THAT THAT THERE WERE NO INCIDENTS OF PHYSICAL ABUSE TO SUPPORT THAT CLAIM, YES.

Q: BY MR. BAILEY: OKAY. AND YOU DO KNOW THAT AS OF JUNE 11, 1992, THE VICTIM IN THIS CASE SAID "NOTHING HAS HAPPENED TO ME OF A PHYSICAL NATURE SINCE 1989"?

MR. GORDON: OBJECT, ASSUMES A FACT NOT IN EVIDENCE, AND IT IS IRRELEVANT.

MR. BAILEY: I HAVE PAGES OF DEPOSITION HERE IF YOU WANT ME --

MR. GORDON: FINE, BUT IT GOES BEYOND WHAT THE COURT RULED THE SCOPE IS.

THE COURT: SUSTAINED.

MR. BAILEY: ALL RIGHT.

Q: NOW, DOCTOR, I TAKE IT THAT IN THOSE CASES WHERE A HOMICIDE HAS TAKEN PLACE AND YOU WERE CONSULTED THAT THE QUESTION PUT TO YOU IS WHY? IS IT CONNECTED, IS IT RELATED TO PRIOR CONDUCT, ET CETERA?

A: YES.

Q: WHAT WAS THE MOTIVE, WHAT THEIR INTENT WAS?

A: YES.

Q: HAVE YOU ANY EXPERIENCE IN IDENTIFYING THE PERPETRATORS OF HOMICIDE BY VIRTUE OF RESORT TO THE SYNDROME?

A: WHICH SYNDROME IS THAT?

Q: THE SO-CALLED BATTERING SYNDROME WITH THE CHARACTERISTICS?

A: I SEE. OKAY. NO.

Q: ALL RIGHT. SO THAT YOUR EXPERTISE IS NOT IN DECIDING IF SOMEBODY COMMITTED AN ACT BUT GENERALLY WHY?

A: THAT'S CORRECT.

Q: AND VERY FRANKLY, IN YOUR ENTIRE SCIENCE NO ONE HAS DEFINED AN ABILITY TO ANSWER THE QUESTION "IF" AS AGAINST WHAT?

MR. GORDON: ASSUMES A FACT NOT IN EVIDENCE, IF THAT HAS EVER BEEN A QUESTION.

THE COURT: OVERRULED. DO YOU UNDERSTAND THE QUESTION?

THE WITNESS: COULD YOU SAY IT AGAIN?

MR. BAILEY: YES.

Q: DO YOU KNOW OF ANY STUDIES OR PUBLICATIONS OR LEARNED PAPERS THAT INSTRUCT YOU IN YOUR ILK AS TO WHAT STEPS TO TAKE IF SOMEONE COMES TO YOU --

A: RIGHT.

Q: -- WITH SOME FACT THAT MAY OR MAY NOT SUPPORT BATTERY AND ASK YOU TO USE THOSE TO IDENTIFY A PERPETRATOR RATHER THAN TO EXPLAIN HIS MOTIVATIONS? YOU SAY YOU HAVE NEVER DONE IT. I'M ASKING YOU IF THAT THERE ARE STUDIES THAT ENABLE PEOPLE TO DO IT?

A: ANY STUDIES THAT ARE KIND OF CHECKLISTS TO A CERTAIN EXTENT THAT WOULD CAUSE A THERAPIST TO LEAN TOWARDS, YES, THIS PERSON PROBABLY HAD DONE IT, OR NO, THEY PROBABLY HAD NOT? IS THAT BASICALLY IT?

Q: YEAH. I'M NOT --

A: YES, THERE IS ONE. THERE IS ONE.

Q: ONE CASE? ONE STUDY?

A: WELL, THERE IS ONE STUDY, YES.

Q: IS THAT SOMETHING THAT YOU WROTE?

A: NO, I DIDN'T WRITE IT.

Q: CAN YOU DEFINE IT FOR ME?

A: IT IS ONE THAT HAS BEEN DEVELOPED BY DANIEL SONKIN WHO IS A CLINICAL PSYCHOLOGIST IN SAUSALITO. IT IS A LEGALITY CHECKLIST THAT HE HAS WORKED ON IN CASES OF THIS SORT.

Q: OKAY. DO YOU KNOW IF DR. SONKIN HAS EVER CLAIMED THAT ABSENT ANY OTHER EVIDENCE IDENTIFYING A PERPETRATOR THAT ONE COULD DO IT FROM EVIDENCE OF A BATTERING SYNDROME?

A: NOT JUST FROM A BATTERING SYNDROME ALONE, NO.

Q: YOU WOULD RUN AN AWFUL RISK THAT SOMEBODY MIGHT HAVE AN IRONCLAD ALIBI?

A: TOO MANY FALSE POSITIVES. TOO MANY FALSE POSITIVES.

Q: OKAY. SO BY THE WAY, DOCTOR, I ASKED YOU YESTERDAY INFORMALLY IF YOU COULD POINT ME IN THE DIRECTION OF SOME OF YOUR MANY WRITINGS THAT WOULD BE RELEVANT TO WHAT WE ARE HERE TO TALK ABOUT TODAY.

A: RIGHT.

Q: AND AT THAT POINT YOU WEREN'T SURE NOW WHY YOU WERE HERE TO DO THAT, RIGHT?

A: THAT'S RIGHT.

Q: BUT SINCE BEEN EDUCATED?

A: THAT'S RIGHT.

Q: CAN YOU NOW DEFINE WHICH OF YOUR WRITINGS WE MIGHT READ THAT WOULD HELP US ON THIS SUBJECT?

A: NOT ONLY DO THAT, BUT I GUARANTEE TO GIVE YOU AN AUTOGRAPHED BOOK TOMORROW IN COURT.

Q: GOOD.

A: AND A LIST OF EVERYTHING ELSE THAT MIGHT POSSIBLY BE RELEVANT. I HAVE ASKED TO HAVE A COUPLE OF BOOKS FED EX'D HAD DOWN BECAUSE I WANT YOU TO HAVE THEM.

Q: THAT IS VERY KIND.

A: I DIDN'T KNOW YESTERDAY EXACTLY WHAT DIRECTION I WOULD BE TESTIFYING.

Q: I WILL TELL YOU WHAT, I WILL SWAP YOU OUT.

A: IT IS A DEAL.

THE COURT: MR. GORDON.

REDIRECT EXAMINATION

BY MR. GORDON:

Q: A COUPLE QUESTIONS TO PUT YOU IN ANOTHER ROLE. I DON'T KNOW IF YOU ARE COMFORTABLE WITH THIS. LET'S TO GO MR. BAILEY'S HYPOTHETICAL CHANGING -- I DON'T KNOW IF THIS IS MORE ATTRACTIVE TO YOU OR NOT. WE ARE IN AN INTIMATE RELATIONSHIP, GIVING YOU THE PORSCHE, THE CONDOMINIUM, THE BRACELETS, ALL THESE WONDERFUL GIFTS. WOULD IT BE SIGNIFICANT TO YOU IF JUST PRIOR TO EACH OF THOSE GIFTS A CRITICAL INCIDENT OF BATTERING OR A BATTERING HAD OCCURRED?

A: OH, YES, DEFINITELY.

Q: WHY?

A: WELL, BECAUSE THEN THE GIFT WOULD BE PART OF WHAT'S CALLED -- LENORE WALKER HERSELF CALLS IT THE CONTRITION PHASE, WHICH IS DOING ANYTHING, SAYING ANYTHING, GIVING ANYTHING TO GET THE RELATIONSHIP BACK ON EVEN KEEL AGAIN AND TO PREVENT THE WOMAN FROM LEAVING.

Q: IN FACT, IN LENORE WALKER'S STUDIES WE HAVE TALKED ABOUT THERE IS DISCUSSION OF ALMOST EXCESSIVE GIVING AT THIS CONTRITION OR HONEYMOON PHASE, ISN'T THERE?

A: YES.

Q: ONE OF THE THREE PHASES OF A BATTERING?

A: UH-HUH.

Q: THE CRITICAL BATTERING OR THE BATTERING ITSELF?

A: UH-HUH.

Q: THE CONTRITION OR HONEYMOON?

A: AND TENSION BUILDING.

Q: AND THEN TENSION BUILDING?

A: YES.

Q: NOW, WE TALK ABOUT AND MR. BAILEY IS ASKING YOU QUESTIONS ABOUT THE DUAL PERSONALITY THAT SOMETIME EXISTS IN BATTERERS.

A: YES.

Q: DOES THAT MEAN IF I AM THE BATTERER I THINK I AM A 17-YEAR OLD HIGH SCHOOL STUDENT ON ONE DAY AND A 45-YEAR OLD WOMAN ON ANOTHER DAY, THAT KIND OF DUAL PERSONALITY?

A: IT IS NOT DELUSIONAL THAT WAY. IT IS SIMPLY SOMEONE CHRONICALLY ANGRY AND ABUSIVE AT HOME CAN PRESENT IN PUBLIC COMPLETELY AFFABLY, NORMALLY, NONVIOLENTLY AND FREQUENTLY DO.

Q: AND IN FACT THAT PUBLIC PERSONA OR PUBLIC FACE, IS THERE A CERTAIN KIND OF PERSONALITY YOU FIND THAT IS IN FACT PRESENTED BY BATTERERS?

A: I WOULD SAY THERE IS A VARIETY OF PUBLIC FACES AND THE ONLY THING THAT REALLY DISTINGUISHES THEM IS THE FACT THAT THERE IS THIS VARIETY OF WHAT APPEAR TO BE NORMAL ACCEPTABLE PERSONALITIES IN PUBLIC WHICH ARE CONTRADICTED THROUGH BEHAVIOR AT HOME.

Q: IS THIS ONE CALLED A NARCISSISTIC PERSONALITY DISORDER OR NARCISSISM THAT IS ENGAGED IN MUCH OF WHAT YOU HAVE TALKED ABOUT?

A: WELL, THERE IS TYPICALLY THOUGHT TO BE THREE DIFFERENT KIND OF BATTERERS AND THERE IS ONE THAT IS CALLED EMOTIONALLY VOLATILE AND THE DSM3 AND DSM4, IT IS CALLED CLUSTER B EXTREME PERSONALITY, BORDERLINE PERSONALITY, NARCISSISTIC PERSONALITY AND WHAT IS CALLED AGGRESSIVE SADISTIC PERSONALITY.

Q: WHAT DO YOU MEAN, "NARCISSISTIC PERSONALITY"?

A: A NARCISSISTIC PERSONALITY WILL BE SOMEONE WHO HAS AN EXAGGERATED OR A GRANDIOSE VIEW OF THEIR OWN APPEARANCE WHO NEEDED A CONSTANT KIND OF REINFORCEMENT, WHO OVERREACTED TO ANY KIND OF SLIGHT CRITICISMS AND WAS INCAPABLE OF DEVELOPING EMPATHY WITH OTHER PEOPLE.

Q: ALWAYS WANT TO BE CENTER OF THE ATTENTION?

A: YEAH.

Q: AND THAT PERSONALITY THEY PUT FORTH IN PUBLIC, IS THAT THE SAME, THIS INTIMATE PERSONALITY? COULD THAT INTIMATE PERSONALITY BE THE VIOLENT ONE?

A: COULD BE.

Q: MR. BAILEY ASKED YOU ABOUT SOME QUESTIONS ABOUT WALKING IN ON SOMEONE AND THE JEALOUSY THAT WOULD OCCUR.

A: UH-HUH.

Q: DO YOU REMEMBER THOSE QUESTIONS?

A: YES.

Q: IS FOLLOWING THE OBJECT OF CONTROL OR THE BATTERED WIFE OR STALKING SOMETHING YOU HAVE SEEN BEFORE?

A: YES, IT IS.

Q: IS THIS AN IMPORTANT BEHAVIOR?

A: IT IS EXTREMELY IMPORTANT BEHAVIOR.

Q: DO YOU SEE THAT KIND OF JEALOUSY, FOLLOWING, I'M WATCHING OVER YOU KIND OF BEHAVIOR A LOT IN THESE CASES?

A: WE SEE IT FREQUENTLY. IT IS AN EXTENSION OF THE DOMINANCE CONTROL FACTOR THAT I PUT UP HERE ON THE BOARD. IN FACT, IF YOU WANT IT, IF I CAN REALLY ANSWER THIS, JUST PULL THIS DOWN, THIS IS THE FIRST HALF OF A SCALE THAT WE ARE USING IN OUR RESEARCH BECAUSE WE ARE STUDYING THIS VERY TOPIC, INTRUSIVENESS, AND WE HAVE TAKEN A LIST OF BEHAVIORS AND WE HAVE ASKED WOMEN WHO ARE ESTRANGED FROM MEN WITH WHOM THEY HAD BATTERING RELATIONSHIPS TO MAKE A LIST OF ALL THE THINGS THAT THIS PERSON DID, AND THAT IS JUST THE FIRST HALF OF THE SCALE AND HERE IS THE SECOND HALF OF THE SCALE.

Q: AND HOW DOES THAT RELATE TO WHAT WE ARE TALKING ABOUT WITH REGARD TO STALKING?

A: WELL, WHAT IT -- IT RELATES IN THIS WAY: MEN WHO ARE PARTICULARLY CONTROLLING AND DOMINATING WHEN THEY ARE IN THE RELATIONSHIP WITH THE WOMAN ARE THE ONES WHO ARE MOST LIKELY TO ENGAGE IN THESE KIND OF INTRUSIONS AFTER THAT RELATIONSHIP TERMINATES.

Q: NOW, WHEN YOU SAY "INTRUSIONS," COULD THAT BE FOLLOWING SOMEONE?

A: IT COULD BE.

Q: GOING TO SOMEONE'S HOUSE?

A: UNWARRANTED GOING TO THAT PERSON'S HOUSE, YES.

Q: HOW ABOUT CALLING THEN ALL THE TIME UNWANTED?

A: IF IT IS UNWANTED, YES, DEFINITELY.

Q: SENDING THEM GIFTS OR GIVING THEM THINGS TO LET THEM KNOW THAT YOU ARE THINKING OF THEM AND WATCHING THEM?

A: THE KEY HERE IS THAT THE WOMAN HAS MADE SOME KIND OF INDICATION THAT SHE DOESN'T WANT THIS AND THE MAN CONTINUES TO INTRUDE ON THE WOMAN'S LIFE.

Q: IT IS INTERESTING -- WELL, YOU WERE ANSWERING MR. BAILEY'S QUESTIONS ABOUT THIS JEALOUSY. YOU SAID THIS KIND OF INTERACTION BETWEEN THE BATTERER AND THE MAN MIGHT NOT HAVE ANYTHING TO DO WITH CONTROL. YOU SEEMED TO INFER THAT HE MIGHT HAVE SOME REAL PROBLEMS OF JEALOUSY WITH THE WOMAN?

A: UH-HUH.

Q: IS THAT YES, SIR?

A: THAT IS A YES.

Q: WHY?

A: WHY IS THE MAN MORE OF AN ISSUE THAN THE WOMAN?

Q: THE HYPOTHETICAL HE GAVE YOU WHERE THIS MAN CAME ON HIS WIFE AND HE HAD SEEN SOMETHING OCCUR AND HE RELATED FRIENDLY TO THE MAN, THAT MIGHT NOT MEAN A LOT TO THE MAN, BUT IT MIGHT MEAN SOMETHING TO THE WOMAN?

A: MY OWN SORT OF TAKE ON THAT IS MEN WHO ARE -- THE KIND OF MEN WHO I AM LOOKING AT THAT ARE ABUSIVE, THEIR PREDOMINANT RAGE, IS WITH A WOMAN. THEY ARE FREQUENTLY BUDDIES WITH MEN. THEY GET ALONG FINE WITH MEN. WOMEN ARE KIND OF LIKE A LIGHTENING ROD FOR ALL THE EMOTIONAL STORMS IN THEIR LIFE. FREQUENTLY UNLIKELY TO DISPLAY ANY KIND OF RAGE TOWARD A MAN.

Q: AND WHEN THEY DO DISPLAY THIS RAGE, IS IT USUALLY IN PUBLIC OR WHEN THEY GET PRIVATE -- TO THAT PRIVATE PERSONALITY?

A: TOWARD THE WOMAN IT WOULD BE IN PRIVATE.

Q: NOW, WE TALKED ABOUT THIS HYPOTHETICAL ABOUT SOME KIND OF DOCUMENT, THIS PROMISE. IS THE PROMISE THE KIND OF THING THAT COULD OCCUR, THIS KIND OF PROMISE OF GENEROSITY, WITHIN THIS CONTRITION PHASE?

A: YES, IT IS.

Q: AND THEN NOTHING HAPPENING IN A BATTERED WOMAN'S LIFE BECAUSE NOTHING IS REPORTED, DOES THAT MEAN NOTHING IS HAPPENING?

A: OH, NO. THAT MEANS SHE IS NOT REPORTING ANYTHING.

Q: DO BATTERED WOMEN LEARN IN ANY WAY NOT TO REPORT?

A: WELL, OCCASIONALLY I MEAN WHEN -- ONE OF THE THINGS THAT CAN HAPPEN WITH SOME BATTERED WOMEN IS IF THEY REPORT SOMETHING AND IT GETS FOUND OUT, THE HUSBAND DISCOVERS IT AND IT BECOMES A CAUSE OF FUTURE CONSTERNATION, THEN SHE REALLY STOPS TALKING AND STOPS EVEN WRITING A DIARY. OR IF SHE KEEPS A DIARY SHE REALLY KEEPS IT UNDER LOCK AND KEY. SHE HAS GOT TO BE VERY CAREFUL THAT HE IS NOT GOING TO FIND OUT WHAT SHE IS SAYING. THAT IS DANGEROUS FOR HER.

Q: BATTERED WOMEN ARE HYPER VIGILANT, CORRECT?

A: YES.

Q: THEY WATCH EVERYTHING THEY SAY, DO, WHERE THEY GO, WHAT THEY DO, BECAUSE THEY KNOW A LOT OF THOSE INNOCUOUS THINGS MIGHT BE TRIGGERS?

A: THAT'S RIGHT.

Q: MR. BAILEY WAS ASKING YOU QUESTIONS ABOUT DETERMINING IF A SPOUSAL HOMICIDE MIGHT OCCUR WITHIN YOUR FIELD.

A: UH-HUH.

Q: LET ME ASK YOU THIS, SIR: DOES YOUR FIELD LOOK AT WHY THEY OCCUR?

A: YES.

Q: AND IS JEALOUSY AND ESTRANGEMENT A BIG REASON?

A: YES, THEY ARE THE MAIN REASONS.

Q: TERRIFYING LOVE IS A BOOK WRITTEN BY DR. WALKER, CORRECT?

A: YES.

Q: YOU ARE FAMILIAR WITH THAT, SIR?

A: YES.

Q: AND IN FACT IN THAT BOOK DOESN'T SHE SAY THAT SEPARATION CREATES A PERIOD OF UNPRECEDENTED DANGER?

MR. BAILEY: COUNSEL, WOULD YOU RETURN THE COURTESY AND GIVE ME THE PAGE NUMBER?

MR. GORDON: CERTAINLY, SIR. 65.

THE WITNESS: THAT'S RIGHT. AND ALL EMPIRICAL STUDIES THAT HAVE BEEN DONE ON INTIMATE HOMICIDE SAY EXACTLY THE SAME THING.

MR. GORDON: COULD I HAVE JUST A MOMENT, YOUR HONOR?

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

Q: BY MR. GORDON: NOW, ONE QUESTION. WITH REGARD TO THIS PERIOD OF WHERE A WOMAN DOESN'T DISCLOSE, WOULD IT BE SIGNIFICANT IF SHE WAS CHRONICLING HER OWN ABUSE PRIVATELY?

A: IF SHE WAS --

Q: CHRONICALLY, KEEPING RECORDS OF HER OWN ABUSE PRIVATELY?

A: YES.

Q: WHY WOULD THAT BE SIGNIFICANT?

A: WELL, IT WOULD SAY TO ME THAT SHE WAS, FIRST OF ALL, BEING HYPER VIGILANT IN TERMS OF HER DISCLOSURES. I MEAN, SHE WAS KIND OF LIKE KEEPING A SECRET, SECRET, SECRET DIARY, AND IT MIGHT ALSO MEAN THAT SHE WAS PLANNING -- PUTTING EVIDENCE IN PLACE BECAUSE SHE WAS PLANNING SOME KIND OF LEGAL ACTION.

Q: COULD IT BE BECAUSE SHE WAS AFRAID?

A: CERTAINLY SHE IS AFRAID. THAT IS WHY SHE IS KEEPING IT SO SECRET.

Q: HAVE YOU EVER HEARD OF A CASE WHERE A WOMAN HAS EXPRESSED FEAR, IN FACT EXPRESSED FEAR OF BEING POSSIBLY KILLED BY THE BATTERER AND YET NOT LEFT?

A: YES.

Q: WHY IS THAT?

A: WELL, I'VE HEARD OF CASES -- I'VE HEARD OF SOME WOMEN WHO ARE AFRAID TO STAY WITH THEM AND AFRAID TO LEAVE THEM BOTH AND THEY ARE CAUGHT BETWEEN TWO OPPOSING FEARS AND THE DECISION THEY MAKE IS THAT THEY ARE PROBABLY GOING TO BE SAFER TO STAY AND RIDE IT OUT THAT IF THEY LEAVE THEY ARE GOING TO DEAD FOR SURE.

Q: IS IT IN FACT CORRECT THAT THAT ACT OF SEPARATION WE TALKED ABOUT EARLIER, IT MIGHT BE EVEN A SMALL ACT, BUT WHEN THAT ESTRANGEMENT OR SEPARATION OCCURS, THAT IS THE MOST DANGEROUS TIME FOR SUCH A WOMAN?

A: THE RISK RATIO MAGNIFIES HER CHANCES OF BEING KILLED BY A FACTOR OF 6.

MR. GORDON: I HAVE NO FURTHER QUESTIONS. THANK YOU, SIR.

MR. BAILEY: I HAVE A COUPLE, YOUR HONOR.

RECROSS-EXAMINATION

BY MR. BAILEY:

Q: BEFORE I HURL THE QUESTION AT YOU, DOCTOR, HAD ANYONE TOLD YOU ABOUT THE PORSCHE, THE MERCEDES, THE FERRARI AND THE CONDOMINIUM?

A: TOLD ME ABOUT IT?

Q: SO YOU COULDN'T POSSIBLY KNOW WHAT THOSE GIFTS WERE TRIGGERED BY ANY ACT OR JUST OUT OF GENEROSITY?

A: NO, I DON'T KNOW.

MR. GORDON: OBJECTION. ASSUMED IN OUR HYPOTHETICAL AGAIN, YOUR HONOR?

THE COURT: NO.

MR. GORDON: OKAY.

Q: BY MR. BAILEY: NOW --

THE COURT: SINCE WE DON'T HAVE A JURY HERE, I GIVE RATHER BROAD LEEWAY.

MR. GORDON: I UNDERSTAND.

THE COURT: WHEN WE GET TO TRIAL IT WILL BE VERY STRICT.

MR. BAILEY: BUT HOPEFULLY NOT FEDERAL.

THE COURT: TOUCHE.

Q: BY MR. BAILEY: DR. BUTTON --

A: YES.

Q: -- IS IT TYPICAL FOR A VICTIM OF BATTERING WHO GOES THROUGH A DIVORCE, ESTABLISHES A LIFE OF HER OWN WITH A REASONABLY HARMONIOUS RELATIONSHIP WITH THE EX WHO HAS GOT A LIFE OF HIS OWN AND A LOVE OF HIS LIFE --

A: RIGHT.

Q: -- TO WANT TO MOVE BACK IN AND TO SUGGEST IT?

A: ONLY IF SHE THOUGHT SHE HAD CHANGE.

Q: OKAY. BUT IF SHE IS OUT OF HARM'S WAY AND IS A VICTIM, SHE IS HARDLY LIKELY TO DEMAND TO GET BACK INTO IT, TRUE?

A: WELL, LET ME -- YES AND NO. LET ME JUST QUALIFY THAT A LITTLE BIT.

Q: IF NOT THREATENED?

A: OKAY.

Q: IF NOT THREATENED?

A: IF NOT THREATENED.

Q: THIS IS MY HYPOTHETICAL, DOCTOR.

A: IF NOT THREATENED. ONE OF THE THINGS THAT IS ALSO TRUE ABOUT BATTERING RELATIONSHIPS THAT FREQUENTLY GOES OVERLOOKED IS THAT MEN WHO ARE ABUSIVE WITH WOMEN ARE NOT CHRONICALLY ABUSIVE. THEY WERE NOT ABUSIVE EVERY DAY. THERE IS FREQUENTLY GREAT TIMES IN BETWEEN, AND WOMEN REPORT THIS. AND THERE IS A LOT OF REALLY ATTRACTIVE QUALITIES SOMETIMES ABOUT THE MAN WHO IS ALSO ABUSIVE. WOMEN COME INTO -- COME TO US ALL THE TIME -- OR MEN COMING INTO OUR GROUPS SAY, I DON'T WANT TO LOSE THE GUY, I DON'T WANT TO LOSE THE RELATIONSHIP, I WANT HIM TO STOP BEING VIOLENT. IF HE STOPPED BEING VIOLENT, HE'S REALLY A SWEET GUY, SO THERE COULD BE A LOT OF POSITIVE THINGS THAT WOULD DRAW THAT WOMAN BACK IF SHE FELT THAT MAN HAD NOW DIMINISHED HIS ABUSIVE BEHAVIOR.

Q: JUST ASSUME THEN, HYPOTHETICALLY, THAT A YEAR AFTER THE DIVORCE TAKES PLACE IN THE MIDDLE OF '92, SAY, MAY OF '93, THE VICTIM SAYS I WOULD LIKE TO GET BACK TOGETHER.

A: UH-HUH.

Q: COULD WE TRY IT FOR A YEAR, HER INITIATIVE.

A: UH-HUH.

Q: AND AT THE END OF THAT YEAR THE ALLEGED BATTERER SAYS, I'M SORRY, HONEY, IT IS NOT WORKING AND WE ARE GOING TO TERMINATE. IS THAT TYPICAL CONDUCT IN THE BATTERED COUPLE?

A: NO. IF HE WERE THE ONE THAT INITIATED THE SPLIT, THAT WOULD NOT BE TYPICAL.

Q: ALL RIGHT. LET'S TAKE IT ONE FURTHER.

A: OKAY.

Q: SUPPOSING THE VICTIM, WHO IS NOT ALLOWED TO MOVE BACK INTO THE MARITAL HOME, THE FORMER MARITAL HOME, NONETHELESS HAS HER MAIL SENT THERE AS A PRELUDE TO AN ADVANCE.

A: UH-HUH.

Q: ASSUME THAT AND ASSUME THAT WHEN THE VICTIM DISCOVERS THAT SHE CANNOT GET ALONG WITH THE LIVE-IN MAID SHE BEATS HER UP PHYSICALLY.

A: UH-HUH.

Q: IS THAT CONSISTENT WITH A WOMAN WHO IS TRYING TO RUN AWAY FROM A THREATENING RELATIONSHIP OR ONE WHO IS TRYING TO GET BACK INTO A RELATIONSHIP?

A: THAT IS NOT CONSISTENT WITH ANY PATTERN I HAVE EVER HEARD OF.

Q: IT IS NOT CONSISTENT WITH A WEAK WOMAN, IS IT?

A: NO, BUT I MEAN IT COULD BE CONSISTENT WITH A WOMAN WHO IS PRETTY ANGRY.

Q: AT THE MAID?

A: WELL, ABOUT SOMETHING. I DON'T KNOW WHAT -- I MEAN, IT IS A HYPOTHETICAL CASE. IT IS HARD TO SAY, BUT SHE IS PLENTY ANGRY ABOUT SOMETHING.

Q: ALL RIGHT. LAST QUESTION.

A: OKAY.

Q: IF THE SOLE EVIDENCE ALLEGED, AND I THINK YOU HEARD THE DATE --

A: RIGHT.

Q: -- OF ECONOMIC ABUSE WERE TO GET A LAWYER TO TELL THE VICTIM NOT TO CONSPIRE TO DEFRAUD THE UNITED STATES OUT OF $90,000, IS THAT ECONOMIC ABUSE OR IS THAT GOOD SENSE?

MR. GORDON: OBJECT. IT IS AN INCOMPLETE HYPOTHETICAL AND GOES BEYOND THE SCOPE.

THE COURT: OVERRULED.

THE WITNESS: IT IS REALLY HARD TO ANSWER THAT WITHOUT KNOWING THE CONTEXT.

MR. BAILEY: FINE, FINE.

THE WITNESS: OKAY.

Q: BY MR. BAILEY: NOT TOO MUCH LONG PRIOR TO THE UNFORTUNATE EVENTS THAT BRING US HERE TODAY.

A: YEAH.

Q: THE VICTIM, WHO HAS SOLD A RENTAL PROPERTY AND PURCHASED ANOTHER --

A: RIGHT.

Q: -- IN WHICH SHE IS LIVING WHICH UNDER U.S. TAX LAWS WOULD TRIGGER A CAPITAL GAINS LIABILITY OF ABOUT NINETY GRAND, ACCORDING TO HER ACCOUNTANT --

A: RIGHT.

Q: -- WHICH THE DEFENDANT HAS INSISTED SHE ESCROW IN CASE UNCLE SAM CATCHES UP, WANTS HIM TO SWEAR THAT SHE IS LIVING IN HIS HOUSE WHEN IT IS NOT TRUE AND HE HAS HIS LAWYER SAY WE CAN'T DO THAT, THAT IS CONSPIRACY TO COMMIT A FEDERAL FELONY, DON'T DO IT, IS THAT ECONOMIC ABUSE?

A: HE IS JUST FOLLOWING HIS LAWYER'S ORDERS -- THE WAY YOU ARE PUTTING IT TO ME, HE IS FOLLOWING HIS LAWYER'S ORDERS.

Q: HAVE YOU SEEN A COPY OF THE LAWYER'S LETTER OR DIDN'T THEY SHOW YOU THAT?

MR. GORDON: IS THAT THE HYPOTHETICAL LETTER, YOUR HONOR?

MR. BAILEY: HYPOTHETICAL LETTER THAT THE PEOPLE HAVE IN THEIR FILES.

THE COURT: WELL, COUNSEL, I ASSUME WHAT IS GOING ON HERE IS A LITTLE PRETRIAL DISCOVERY IS WHAT IS GOING ON HERE.

MR. GORDON: I FIGURED THAT, YOUR HONOR.

THE COURT: YEAH.

MR. BAILEY: WE HAVE A COPY, YOUR HONOR.

THE COURT: ALL RIGHT.

Q: IF THAT IS THE SOLE EXAMPLE WOULD YOU SAY THAT THAT DOES NOT AMOUNT, IN YOUR EXPERIENCE --

A: I WOULD SAY THE WAY THAT YOU ARE DESCRIBING THE CASE TO ME, THIS MAN WOULD SIMPLY BE FOLLOWING HIS LAWYER'S ORDERS.

MR. BAILEY: OKAY.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

THE COURT: COUNSEL, THIS LETTER IS NOT GOING TO BE REALLY HELPFUL TO ME IN MAKING THE DETERMINATION.

MR. BAILEY: WE WITHDRAW IT, YOUR HONOR. NO FURTHER QUESTIONS, JUDGE.

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

MR. GORDON: PROMISE JUST A COUPLE.

FURTHER REDIRECT EXAMINATION

BY MR. GORDON:

Q: YOU HEARD MR. BAILEY USE THE TERM "A WEAK WOMAN." BECAUSE A WOMAN IS A VICTIM OF BATTERING, DOES THAT MEAN SHE IS WEAK?

A: NO, NOT AT ALL.

Q: ARE YOU FAMILIAR -- YOU HEARD ABOUT -- SOME QUESTIONS ABOUT A WOMAN RETURNING BACK AND GOING BACK TO THE BATTERER. ARE YOU FAMILIAR -- I SAID A COUPLE. ARE YOU FAMILIAR -- ARE YOU FAMILIAR WITH ANY STUDIES THAT TALK ABOUT THE EFFECT UPON A WOMAN UPON HER ATTACHMENT OR HER BONDING TO A MAN WHEN SHE HAS BEEN SUBJECTED TO UNPREDICTABLE OR INTIMATE VIOLENCE?

A: I WROTE THREE OF THEM.

Q: DOES IT SAYING ANYTHING ABOUT THE ATTACHMENT?

A: YES.

Q: WHAT IS THAT?

A: WELL, ONE OF THE THINGS THAT HAPPENS WITH BATTERED WOMEN IS THAT IS SOMETHING CALLED TRAUMATIC BONDING WHICH IS A KIND OF PECULIAR PROCESS, BUT BASICALLY IT WORKS LIKE THIS: WE GET ATTACHED TO PEOPLE WHO INTERMITTENTLY TREAT US WELL, BADLY, WELL, BADLY, WHERE THERE IS POSITIVE-NEGATIVE REPEATED BEHAVIOR. ONE OF THE EFFECTS OF TRAUMATIC BONDING IS THAT WITH TIME AWAY FROM THE ABUSER A WOMAN FORGETS THE NEGATIVE STUFF AND REMEMBERS WHAT WAS GOOD ABOUT THE RELATIONSHIP. I HAVE SEEN IT HAPPEN WITHIN A WEEK, BUT IT CAN CERTAINLY TAKE A LONGER TIME PERIOD.

MR. GORDON: I HAVE NO FURTHER QUESTIONS, YOUR HONOR. THANK YOU.

THE COURT: ALL RIGHT. MR. BAILEY, ANY FURTHER QUESTIONS?

MR. BAILEY: NOTHING FURTHER, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU. ALL RIGHT. DR. BUTTON, YOU CAN STEP DOWN. THANK YOU, SIR.

MR. GORDON: CAN I FINISH UP REAL QUICK, YOUR HONOR?

THE COURT: ALL RIGHT.

MR. GORDON: YOUR HONOR, THE INFORMATION THAT IS BEING TALKED ABOUT IN THIS CASE MUST -- MUST BE CONSIDERED WITHIN THE LIGHT OF WHAT WE KNOW ABOUT DOMESTIC VIOLENCE AND SPOUSAL ABUSE, ABOUT THE MOTIVES, THE CONNECTIONS, THE PATTERNS. WHAT THE COURT SHOULD CONSIDER, AND WHAT I FIND INTERESTING IN LOOKING AT THESE CASES, IS THERE IS A LOT OF LITERATURE, LEGALLY AND EMPIRICALLY, IN DIFFERENT KIND OF CASES, AND THE SAME IS TRUE WITH REGARD TO PATRICIDE CASES AND SPOUSAL ABUSE -- KILLING CASES, BOTH THE CASES WHERE THE BATTERER, THE MAN, HAS KILLED THE WIFE AND VICE VERSA, AND WHAT IS INTERESTING TO NOTICE, THAT IF THIS WAS A CASE WHERE THE WOMAN WAS ON TRIAL FOR KILLING HER HUSBAND IN SELF-DEFENSE, ALLEGING ESSENTIALLY THE BATTERED WOMEN'S SYNDROME TYPE KILLING CASE, IT IS CLEAR FROM ARIS, DAY, ALL THOSE CASES, THAT ALL OF THIS EVIDENCE WOULD COME IN. AND GOING BACK AS FAR AS POSSIBLE, IN PATRICIDE CASES, IT IS CLEAR THAT WHERE THE ARGUMENT IS THAT WE NEED TO SHOW THIS PATTERN OF ABUSE TO EXPLAIN THIS DEFENSE, THE ENTIRE HISTORY COMES IN, EVERYTHING, WITHOUT REGARD TO ANY OF THE CONCERNS REGISTERED HERE TODAY. AND IT IS INTERESTING TO NOTE THE VARIOUS POSITIONS, THAT WHEN A WOMAN HAS KILLED HER BATTERER, IT IS ARGUED THROUGHOUT THE LITERATURE, LEGAL, EMPIRICAL, SCIENTIFIC LEGAL REVIEW COMMENTARIES, THAT IT IS ABSOLUTELY UNJUST FOR THE TRIER OF FACT TO CONSIDER WHAT HAPPENED IN THAT HOMICIDE WITHOUT THAT HISTORY, EVERY BIT OF THAT HISTORY. AND WHAT IS INTERESTING TO NOTE, THAT IN THOSE CASES IT IS ONLY GOING TO ONE ISSUE, AND THAT IS THE ISSUE OF REASONABLENESS WITH INTENT AND DEGREE GOING TO ONE VERY SMALL ISSUE. AND YET HERE UNDER VERY TRADITIONAL ANALYSIS, WITHOUT EVER GETTING WITHIN -- TO THE INFORMATION WE HAVE DISCUSSED TODAY OF A COMPELLING INFORMATION ABOUT BATTERED WOMAN'S SYNDROME AND THE LIKE AND BATTERERS SYNDROME AND ALL THE SCIENCE SURROUNDING IT, WHICH IS MUCH MORE EXPANSIVE THAN JUST THE BATTERED WOMAN'S SYNDROME, IT IS COMPELLING THAT WHAT HAS OCCURRED TO THAT WOMAN MUST COME IN BEFORE -- BEFORE THE TRIER OF FACT. HER LIFE AND HER DEATH CANNOT BE UNDERSTOOD. AND IF IT IS APPROPRIATE AND JUST FOR A WOMAN WHO HAS ESSENTIALLY ESCAPED THE BATTERING TO HAVE THAT INFORMATION COME BEFORE A TRIER OF FACT, IT IS ABSOLUTELY BY POLICY AND THE LAW IMPERATIVE FOR IT TO COME IN WHEN A WOMAN -- BATTERER IS ON TRIAL. THANK YOU, YOUR HONOR.

THE COURT: THANK YOU, COUNSEL. ALL RIGHT. MR. UELMEN, WHAT IS YOUR TIME ESTIMATE TO YOUR RESPONSE? MR. UELMEN: ABOUT AN HOUR, YOUR HONOR.

THE COURT: ALL RIGHT. MR. DARDEN, THEN I'M -- I DON'T THINK WE WILL GET TO THE FUHRMAN MOTION TODAY IS MY GUESS.

MR. DARDEN: THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. WILL YOU BE ABLE TO ARGUE THAT TOMORROW MORNING?

MR. DARDEN: YES, ALONG WITH DEPUTY D.A. LEWIS, YOUR HONOR. BEFORE I GO, HOWEVER, I WOULD LIKE TO LEAVE WITH THE COURT -- WITH THE COURT AND DEFENSE COUNSEL TWO ITEMS. THE FIRST IS A CHAPTER FROM A BOOK CALLED TWO NATIONS, BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL. IT IS BY ANDREW HACKER AND IT WAS PUBLISHED IN 1992. I ALSO WOULD LIKE TO LEAVE WITH THE COURT AND COUNSEL A STUDY FROM THE AMERICAN SOCIOLOGICAL REVIEW, VOLUME 56, IT IS PUBLISHED IN 1991. IT IS ENTITLED THE CONTINUING SIGNIFICANCE OF RACE, ANTI-BLACK DISCRIMINATION IN PUBLIC PLACES. IT IS GOING TO BE OUR POSITION THAT THE COURT SHOULD HAVE SOME FEELING OF WHAT IT MEANS OR WILL MEAN FOR BLACK JURORS TO HEAR IN THIS CASE THAT DETECTIVE FUHRMAN MAY HAVE USED THE "N" WORD SOME FOURTEEN OR FIFTEEN YEARS AGO, AND WE WILL BE ARGUING THAT EVIDENCE SHOULDN'T COME IN, THAT IT WILL POSE SUBSTANTIAL PREJUDICE TO THE PROSECUTION'S CASE IN THE EVENT THAT THE COURT ALLOWS THOSE SLURS IN THE EVIDENCE, AND SO I LEAVE THIS WITH MR. COCHRAN.

MR. COCHRAN: I KNOW WHAT IT IS AND I UNDERSTAND THAT WORD VERY CLEARLY AND I'M NOT GOING TO ARGUE THE ISSUE NOW, BUT I DON'T THINK THE COURT NEEDS DR. HACKER'S BOOK IN ORDER TO UNDERSTAND WHAT IT IS TO HAVE A RACIAL INSULT VISITED UPON ONE. AND THE FACT THAT WE HAVE A JURY THAT IS A DIVERSE JURY I THINK DOES VIOLENCE TO THE CONCEPT OF A DIVERSE JURY AND IT BELITTLES THEIR INTELLIGENCE TO UNDERSTAND IF THEY CAN'T UNDERSTAND --

THE COURT: MR. COCHRAN, WE ARE NOT HEAR TO ARGUE THE MOTION AT THIS POINT. I'M ASKING FOR TIME ESTIMATES.

MR. COCHRAN: I UNDERSTAND. I'M ONLY RESPONDING TO COUNSEL. I THOUGHT WE WERE HEAR TO LET HIM GO HOME.

MR. DARDEN: I'M PLEASED TO HEAR THAT MR. COCHRAN KNOWS WHAT THE TERM MEANS AND HAS HEARD IT BEFORE SO WE WON'T NEED EXPERT TESTIMONY ON THIS ISSUE.

MR. COCHRAN: I DON'T THINK THE COURT DOES EITHER.

THE COURT: I'M FAMILIAR WITH THE HACKER BOOK. THANK YOU, COUNSEL. MR. DARDEN, GOOD LUCK WITH YOUR FLOOD PROBLEMS. COUNSEL, WHY DON'T WE TAKE A BRIEF RECESS AND THEN WE WILL HEAR THE RESPONSE.

MR. GORDON: THANK YOU.

(RECESS.)

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

MR. GORDON: MAY WE APPROACH, YOUR HONOR?

THE COURT: SURE.

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

THE COURT: BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE AGAIN PRESENT. AND, MR. GORDON, YOU HAD ONE COMMENT BEFORE YOU SUBMIT THE ARGUMENT?

MR. GORDON: YES, YOUR HONOR. BEFORE WE SUBMIT -- WE HAVE DISCUSSED IT AT SIDEBAR -- WE ARE PREPARING FOR THE COURT THE FURTHER -- THE DOCUMENTS WITH REGARDS TO OUR OFFER OF PROOF. WE ARE GOING TO INDEX BY INCIDENTS THE SUPPORTING DOCUMENTS. WE WILL HAVE A COPY FOR YOU IN THE MORNING AND FOR DEFENSE FOR THEIR INSPECTION AS PART OF OUR OFFER OF PROOF.

THE COURT: THANK YOU. MR. UELMEN, DO YOU WISH TO RESPOND?

MR. UELMEN: YES, YOUR HONOR. LET ME LEAD OFF BY ASSURING THE COURT THAT WE ARE NOT WITHDRAWING THE ARGUMENT MADE IN OUR BRIEF THAT THE ADMISSION OF THIS EVIDENCE WOULD ALSO BE A VIOLATION OF THE DEFENDANT'S DUE PROCESS RIGHTS UNDER BOTH THE FEDERAL AND STATE CONSTITUTIONS. AND WE CITE A CASE WHICH I THINK IS A VERY SIGNIFICANT ONE, THE CASE OF MC KINNEY VERSUS REESE, IN WHICH THE 9TH CIRCUIT COURT OF APPEALS RECENTLY GRANTED A WRIT OF HABEAS CORPUS TO A CALIFORNIA DEFENDANT WHO HAD BEEN CONVICTED ON THE BASIS OF THE ADMISSION OF EVIDENCE OF PRIOR ACTS; AND THE COURT HELD THAT WAS A VIOLATION OF FEDERAL DUE PROCESS RIGHTS THAT REQUIRED THE GRANT OF A WRIT OF HABEAS CORPUS. SO THIS IS NOT A GROUNDS THAT WE ARE WITHDRAWING FROM CONSIDERATION OF THE COURT. LET ME BACK UP TO THE BEGINNING, THE THEORY THAT THERE IS A SPECIAL EXCEPTION FOR RELATIONSHIP VIOLENCE CASES THAT ALLOWS THE COURT TO ADMIT EVIDENCE OF PRIOR ACTS OF MISCONDUCT WITHOUT REFERENCE TO THE EXCEPTIONS CONTAINED IN SECTION 1101(B). TO SUPPORT THAT ARGUMENT, WE HEARD FROM THE PROSECUTION A NUMBER OF ARGUMENTS. FIRST OF ALL, WE HEARD THAT THIS IS SIMPLE COMMON SENSE, THAT WHEN SOMEONE KILLS SOMEONE WITH WHOM THEY ARE IN A RELATIONSHIP, THE FIRST QUESTION THAT SHOULD OCCUR TO US IS WHAT WAS GOING ON, AND ONLY WHEN YOU UNDERSTAND WHAT WAS GOING ON IN THE RELATIONSHIP DOES THE KILLING MAKE SENSE. THERE'S ALSO ONE PROBLEM WITH THAT; AND THAT IS, THESE QUESTIONS ARISE ONLY WHEN YOU ASSUME THAT THE DEFENDANT IS THE PERSON WHO DID THE KILLING. IT'S A KIND OF A WORKING BACKWARDS KIND OF ARGUMENT. WE'RE ASSUMING THAT THE PERPETRATOR OF THIS KILLING WAS A PERSON IN RELATIONSHIP WITH THE VICTIM. SO LET'S GO BACK AND TAKE APART THAT RELATIONSHIP AND LOOK AT EVERY ASPECT OF IT. BUT THAT COMMON SENSE DOESN'T HELP US VERY MUCH OR GET US VERY FAR IF WE'RE DEALING WITH A CASE WHERE THE ISSUE TO BE LITIGATED IS, WHO DID THIS KILLING. WE'RE NOT ASSUMING THAT IT WAS ANYONE IN RELATIONSHIP WITH THE VICTIM. AND I THINK IT'S IMPORTANT TO NOTE THAT MANY, MANY OF THE CASES THAT HAVE BEEN CITED BY THE PROSECUTION THROUGHOUT THESE PROCEEDINGS ARE CASES WHERE THE IDENTITY OF THE KILLER WAS NOT REALLY AN ISSUE. WHAT WAS REALLY BEING LITIGATED WAS, WAS THAT A SELF-DEFENSE SITUATION, WAS THE KILLER ACTING IN THE HEAT OF PASSION, WAS THIS AN ACCIDENT, DID THE GUN ACCIDENTALLY GO OFF, WAS THERE DEMENTED CAPACITY, SOME FORM OF ABUSE EXCUSE? AND I WANT TO ASSURE THE COURT AT THE OUTSET HERE AND NOW, AND ALL OF THE DEFENSE LAWYERS AGREE IN THIS STATEMENT, THIS IS A MURDER CASE PERIOD. THE DEFENSE IS NOT GOING TO PRESENT ANY DEFENSE WITH RESPECT TO HEAT OF PASSION. THE DEFENDANT WILL NOT BE SEEKING AN INSTRUCTION ON VOLUNTARY MANSLAUGHTER. WE WANT THIS CASE SUBMITTED TO THE JURY AS A MURDER CASE; AND THEY WILL HAVE TO COME BACK WITH A VERDICT OF GUILTY OF MURDER OR NOT GUILTY OF MURDER, MR. O.J. SIMPSON. SO THE ONLY ISSUE REALLY THAT IS GOING TO BE IN CONTENTION IN THIS TRIAL IS WHETHER MR. O.J. SIMPSON IS THE PERSON WHO PERPETRATED THIS HOMICIDE. AND I THINK IT IS VERY IMPORTANT THAT ALL OF THIS EVIDENCE OF PRIOR CHARACTER OF THE CHARACTER OF MR. SIMPSON BE LOOKED FROM THAT PERSPECTIVE OF WHAT IS REALLY GOING TO BE IN CONTENTION IN THE COURSE OF THESE PROCEEDINGS. NOW, TO SUPPORT THIS THEORY OF A RELATIONSHIP VIOLENCE EXCEPTION, THE PROSECUTION HAS TOLD US, "WELL, ZACK ISN'T THE ONLY CASE THAT HAS EVER SAID THIS. WE'VE PRESENTED 10 CASES IN WHICH COURTS HAVE MADE STATEMENTS WITH RESPECT TO EVIDENCE COMING IN TO SHOW THE NATURE OF A RELATIONSHIP IN A RELATIONSHIP VIOLENCE CASE." WELL, I LOOKED AT THOSE 10 CASES. I CERTAINLY LOOKED AT THEM MUCH MORE CAREFULLY THAN I HAD BEFORE THE ARGUMENT WAS PRESENTED HERE IN COURT AND DISCOVERED THAT SEVEN OF THE 10 CASES PRECEDED THE ENACTMENT OF THE CALIFORNIA EVIDENCE CODE. AND I THINK THAT'S AN IMPORTANT POINT BECAUSE OF COURSE, OUR CONTENTION IS THAT THIS SO-CALLED EXCEPTION FOR RELATIONSHIP VIOLENCE CASES IS NOWHERE TO BE FOUND IN THE CALIFORNIA EVIDENCE CODE WHICH DEFINES FOR THIS CASE WHAT EVIDENCE WILL BE ADMITTED AND WON'T BE ADMITTED. ONLY THREE OF THE 10 CASES WERE ACTUALLY DECIDED UNDER THE CALIFORNIA EVIDENCE CODE AND CONSTRUED THE PROVISIONS OF 1101(A) AND 1101(B), AND THOSE ARE THE THREE CASES THAT ARE CITED ON PAGE 32 OF THE PEOPLE'S RESPONSE TO THE MOTION IN LIMINE. ALL THREE OF THESE CASES INCIDENTALLY HAVE BEEN REFERRED TO IN THE COURSE OF THE ORAL ARGUMENT PRESENTED BY THE PEOPLE, AND I THINK IT'S INTERESTING TO TAKE A LOOK AT THESE CASES AND SEE WHAT WAS REALLY AT ISSUE, WHAT WAS BEING CONTENDED IN THE TRIALS AND HOW MUCH SIMILARITY WAS THERE BETWEEN THE PRIOR ACTS THAT WERE BEING ADMITTED OSTENSIBLY TO EXPLAIN THIS RELATIONSHIP AND THE ACTUAL OFFENSE FOR WHICH THE DEFENDANT WAS ON TRIAL. THE FIRST OF THESE CASES IS PEOPLE VERSUS HELFEND, A 1969 CASE, IN WHICH THE DEFENDANT WAS ACCUSED OF MURDERING HIS FORMER WIFE'S HUSBAND. THE DEFENDANT WAS ARRESTED WHILE DRIVING AN AUTOMOBILE ACROSS THE MEXICAN BORDER IN WHICH THE BODY OF THE VICTIM, HIS FORMER WIFE'S HUSBAND, WAS IN THE TRUNK OF THE AUTOMOBILE, NOT A CASE IN WHICH THE IDENTITY OF THE KILLER WAS BEING CLOSELY CONTESTED. IN FACT, THE DEFENSE THAT HE PRESENTED IN THAT CASE WAS SELF-DEFENSE, THAT HE HAD KILLED THIS MAN IN SELF-DEFENSE. AND IT WAS IN THAT CONTEXT THAT THE COURT ADMITTED EVIDENCE THAT ON A PRIOR OCCASION, HE HAD HIRED SOMEONE OR ATTEMPTED TO HIRE SOMEONE TO BEAT UP THIS SAME VICTIM AND HE HAD ALSO BURNED DOWN THIS VICTIM'S HOUSE. NOW, THAT'S A VERY DIFFERENT PROCESS OF EVIDENTIARY INFERENCE THAN THE COURT IS BEING ASKED TO ENGAGE IN THIS CASE. WE'RE NOT JUST TALKING ABOUT EXPLAINING A RELATIONSHIP. WE ARE PRESENTING VERY SIMILAR ACTS THAT GO DIRECTLY TO COUNTERING THE DEFENDANT'S CLAIM THAT THE MURDER WAS A SELF-DEFENSE KILLING. THE SECOND CASE IS PEOPLE VERSUS DANIELS. THIS IS THE CASE IN WHICH THE DEFENDANT WAS ACCUSED OF KILLING HIS WIFE BY EXPLODING A CAN BOMB IN THE AUTOMOBILE IN WHICH SHE WAS SEATED. AND THE PRIOR MISCONDUCT THAT WAS ADMITTED OSTENSIBLY TO EXPLAIN THEIR RELATIONSHIP WAS THAT WITHIN THE ONE YEAR PRIOR TO THE CAR BOMB GOING OFF, HE HAD ATTEMPTED TO ASSAULT HER WITH A KNIFE, HE HAD HELD A GUN TO HER HEAD AND HE HAD DRIVEN A CAR OFF A CLIFF AND JUMPED OUT OF THE CAR SO THAT SHE WOULD GO OVER THE CLIFF IN THE CAR. AND FORTUNATELY, THE CAR RAN INTO A TREE, FORTUNATELY FOR HER. IT DELAYED HER DEATH BY ABOUT SIX MONTHS. NOW, THAT'S NOT EVIDENCE TO SIMPLY EXPLAIN A RELATIONSHIP. THAT IS STRONG EVIDENCE OF A PATTERN OF BEHAVIOR SHOWING THAT HIS GOAL WAS TO KILL HIS WIFE AND HE HAD FAILED ON THREE PRIOR ATTEMPTS BEFORE HE FINALLY SUCCEEDED. THE THIRD CASE IS PEOPLE VERSUS HAYLOCK INVOLVING A FEMALE DEFENDANT WHO WAS ACCUSED OF KILLING HER EX-BOYFRIEND. THE KILLING WAS COMMITTED IN AUGUST OF 1979 IN THE PRESENCE OF AN EYEWITNESS, THE EYEWITNESS BEING THE VICTIM'S MOTHER. AND SHE REPORTED THAT THE DEFENDANT ATTACKED THE VICTIM WITH A BUTCHER KNIFE SAYING, "YOU SON OF A BITCH. THIS IS WHAT YOU NEED," AND THEN STABBED HIM WITH A BUTCHER KNIFE. WELL, THE PRIOR INCIDENTS THAT WERE ADMITTED TO EXPLAIN THIS RELATIONSHIP WERE THAT NINE MONTHS BEFORE, IN DECEMBER OF 1978, SHE ATTACKED THE VICTIM WITH A BUTCHER KNIFE, AND ON FEBRUARY OR IN FEBRUARY OF 1979, SIX MONTHS BEFORE THIS INCIDENT, SHE AGAIN ATTACKED HIM WITH A BUTCHER KNIFE. NOW, WHAT WE SEE IN THESE CASES ARE SIMPLY CLASSIC EXAMPLES OF THE KIND OF SIMILARITY BETWEEN THE PRIOR INCIDENTS AND THE INCIDENT ON TRIAL THAT IS GOING TO ASSIST THE JURY IN TERMS OF RESOLVING AN ISSUE BEING CONTENDED IN THESE CASES AS TO WHETHER IT WAS AN INTENTIONAL KILLING SHOWING THE IDENTITY OF THE KILLINGS BY SIGNATURE KIND OF FACTS, THE CLASSIC APPLICATION OF THE 1101(B) EXCEPTIONS. THESE ARE FAR FROM ANY EXAMPLE OF WHAT THE COURT OR WHAT THE PROSECUTION SAYS ZACK STANDS FOR; THAT WHENEVER YOU HAVE A RELATIONSHIP CASE, YOU CAN BRING IN EVERYTHING THAT MIGHT EXPLAIN THE RELATIONSHIP IN TERMS OF PRIOR ACTS OF MISCONDUCT. NOW, WITH RESPECT TO ZACK ITSELF, I KNOW THERE HAS BEEN SOME DISAGREEMENT ABOUT WHAT ZACK REALLY STANDS FOR, IF ANYTHING. ALL WE CAN SAY IS THAT IN OUR READING OF THE CASE AS SIMPLY AN EXAMPLE OF WHAT WE CALL THE THIRD EXCEPTION, THAT IS WHERE THE DEFENDANT TAKES THE STAND AND PRESENTS HIS RELATIONSHIP AS A POSITIVE LOVING ONE, THAT THE PEOPLE CAN COUNTER THAT WITH EVIDENCE JUST AS THEY CAN WITH ANY OTHER WITNESS TO SHOW THAT THIS ISN'T TRUE. AND THAT OF COURSE WOULD NOT ARISE UNLESS THAT WAS DONE IN THIS CASE IN TERMS OF EVIDENCE BEING PRESENTED BY THE DEFENDANT. ALL I CAN SAY IS, OUR READING OF ZACK PUTS US IN VERY GOOD COMPANY BECAUSE THAT IS PRECISELY HOW THE CALIFORNIA SUPREME COURT READ ZACK. THE ONLY CASE THAT ANYONE CAN FIND IN WHICH THE CALIFORNIA SUPREME COURT HAS EVER CITED ZACK IS THE CASE OF PEOPLE VERSUS ALLISON. AND WE INVITE THE COURT'S ATTENTION TO THE FOOTNOTE IN ALLISON, WHERE THAT IS EXACTLY WHAT THEY SAY. ZACK STANDS FOR THE PROPOSITION THAT A DEFENDANT WHO TESTIFIES CAN BE IMPEACHED WITH EVIDENCE OF PRIOR INCIDENTS OF MISCONDUCT. AND FINALLY, THE PEOPLE RELY ON THE HASTON CASE AS REALLY AN EXAMPLE OF THIS RELATIONSHIP CONCEPT, THAT SOMEHOW HASTON REINFORCES THIS THEORY BECAUSE IN HASTON, THE PRIOR ACTS THAT WERE ADMITTED WERE ACTS COMMITTED WITH THE SAME CONFEDERATE, AND BECAUSE THE DEFENDANT HAD COMMITTED TWO PRIOR ROBBERIES WITH THE SAME CONFEDERATE, THE JURY COULD DRAW AN INFERENCE THAT SINCE HE WAS CHARGED IN THIS CASE WITH COMMITTING A ROBBERY WITH THE SAME CONFEDERATE, THAT THIS IS A PATTERN OF CONDUCT THAT ASSISTED IN IDENTIFYING HIM AS THE PERPETRATOR. SO THE SIGNATURE REALLY WAS THE PRESENCE OF THAT CONFEDERATE. THAT REALLY ISN'T A RELATIONSHIP CASE AT ALL. IN FACT, THAT CASE MIGHT BE OF SOME ASSISTANCE TO THE PROSECUTION IF THEY HAD EVIDENCE THAT ON TWO PRIOR OCCASIONS, MR. SIMPSON HAD ENCOUNTERED NICOLE BROWN SIMPSON WITH RONALD GOLDMAN, AND ON BOTH OF THOSE OCCASIONS, MR. SIMPSON REACTED IN SOME SORT OF VIOLENT WAY BY ASSAULTING HIS WIFE OR ASSAULTING MR. GOLDMAN. THEN WE MIGHT HAVE SOMETHING TO TALK ABOUT IN TERMS OF WHETHER THOSE INCIDENTS EXPLAIN WHAT HAPPENED ON THE NIGHT OF JUNE 12TH, 1994 WHEN THE PROSECUTION IS GOING TO THEORIZE THAT A THIRD SUCH CONFRONTATION TOOK PLACE. BUT THAT'S NOT WHAT WE HAVE HERE. WE DON'T HAVE ANY SIMILAR FACTS ON WHICH WE CAN HANG ANY SORT OF INFERENCE THAT THIS CRIME ON JUNE 12TH WAS DONE WITH A PARTICULAR INTENT, WITH A PARTICULAR MOTIVE OR WAS DONE BY A PARTICULAR PERSON. NOW, WHEN WE GET TO THE TRADITIONAL 1101(B) EXCEPTIONS, IT OCCURRED TO ME AGAIN THE PROSECUTION MIGHT HAVE SOMETHING TO TALK ABOUT. THEY HAVE A WONDERFUL THEORY IF THEY COULD SHOW THAT WHEN THE POLICE ARRIVED AT THE BUNDY PREMISES ON THE -- EARLY MORNING HOURS OF JUNE 13TH, 1994, THEY FOUND TWO DEAD BODIES AND THEY FOUND A LOT OF BROKEN PICTURE FRAMES WITH FAMILY PICTURES. WOULDN'T WE HAVE A STUNNING SIGNATURE KIND OF CASE IN WHICH WE COULD GO BACK TO PRIOR INCIDENTS OF BROKEN FAMILY PICTURES AND SAY, "LOOK, LOOK AT WHAT WAS DONE HERE, AND WE CAN INFER THAT THE SAME THING WAS GOING ON ON JUNE 12TH"? AND THAT REALLY IS WHAT 1101(B) IS ALL ABOUT, WHEN YOU HAVE THOSE KIND OF SIMILAR FACTS. BUT HERE, THERE'S NO SUCH EVIDENCE. HERE, THE ONLY ISSUE WE WANT TO LITIGATE IS WHO WAS THERE JUNE 12TH AND COMMITTED THESE HOMICIDES. AND WE'RE SAYING WE'RE READY AND WILLING TO LITIGATE THAT ISSUE ON THE BASIS OF WHAT YOU DID FIND ON THE SIDEWALK. IN FACT, WE'RE WITHDRAWING OUR OBJECTIONS AND LETTING ALL OF THAT EVIDENCE COME IN BECAUSE THAT IS THE EVIDENCE THE JURY SHOULD LOOK AT IN TERMS OF DECIDING THIS CASE IN WHICH THE ONLY REAL ISSUE IS WHO COMMITTED THESE KILLINGS. NOW, THE TREASURE TROVE CASE OF EWOLDT, I FOUND IT AMUSING THAT A CALIFORNIA SUPREME COURT OPINION WITHIN THE LAST YEAR HAS SOMEHOW BEEN APPROPRIATED AS A SECRET TREASURE TROVE OF THE PROSECUTION. THE REASON WE POINTED THE COURT'S ATTENTION TO EWOLDT WAS BECAUSE IT IS THE LAST WORD FROM THE CALIFORNIA SUPREME COURT WITH RESPECT TO THE MEANING OF THE 1101(B) EXCEPTIONS. AND THE GUIDING PRINCIPAL THAT THE COURT SETS FORTH IN EWOLDT IS THAT PRINCIPAL OF SIMILARITY. AND THEY HAVE SIMPLY LAID OUT AN ATTEMPT TO QUANTIFY HOW MUCH SIMILARITY YOU NEED FOR EACH OF THE VARIOUS THEORIES THAT YOU ARE PURSUING. AND THEY POINT OUT FIRST OF ALL THAT WHEN WE'RE TALKING ABOUT MOTIVE OR INTENT AS THE THEORY, THAT UNDER THESE CIRCUMSTANCES ORDINARILY, THE IDENTITY HAS BEEN ASSUMED. WE KNOW WHO DID IT AND WE'RE LOOKING AT WHY THEY DID IT OR WHAT INTENT THEY DID IT WITH. AND IF OUR REAL PURPOSE IS TO SHOW IDENTITY, TO SHOW THAT THE SAME PERPETRATOR DID THESE PRIOR ACTS AND DID THE ACT FOR WHICH HE IS NOW ON TRIAL, WE HAVE THE STRONGEST NEED FOR SIMILARITY, THAT THE SIMILARITY MUST RISE TO THE LEVEL OF SIGNATURE FACTS.

NOW, EWOLDT WAS NEITHER. EWOLDT WAS A SITUATION THE COURT DEFINED AS KIND OF IN THE MIDDLE IN TERMS OF COMMON DESIGN OR PLAN. BUT EVEN IN TERMS OF SHOWING A SERIES OF ACTS WITH A COMMON DESIGN OR PLAN, THE COURT INSISTED ON A GOOD DEAL OF SIMILARITY BETWEEN THE ACTS BEFORE WE COULD INFER THAT THEY WERE PART OF A COMMON DESIGN OR PLAN. AND I THINK IT'S IMPORTANT TO LOOK IN EWOLDT AT HOW MUCH SIMILARITY THERE ACTUALLY WAS BETWEEN THE PRIOR ACTS OF ABUSE OF A STEP CHILD AND THE CURRENT ACT OF ABUSE OF A STEP CHILD FOR WHICH THE DEFENDANT WAS ON TRIAL. THE COURT SAID IN THE PRESENT CASE:

"THE VICTIMS OF BOTH THE UNCHARGED MISCONDUCT AND THE CHARGED OFFENSES WERE THE DEFENDANT'S STEPDAUGHTERS WHO WERE RESIDING IN THE DEFENDANT'S HOME AND THE ACTS OCCURRED WHEN THE VICTIMS WERE OF A SIMILAR AGE.

"ON THREE OCCASIONS, THE DEFENDANT MOLESTED NATALIE AT NIGHT WHILE SHE WAS ASLEEP IN HER BED. AND WHEN HE WAS DISCOVERED, THE DEFENDANT ASSERTED HE WAS ONLY STRAIGHTENING UP THE COVERS." NATALIE WAS THE VICTIM OF THE PRIOR UNCHARGED OFFENSES.

"IN TWO OF THE CHARGED OFFENSES, THE DEFENDANT MOLESTED JENNIFER IN AN ALMOST IDENTICAL FASHION COMING INTO HER BEDROOM MOLESTING HER, AND THEN WHEN SHE AWOKE, OFFERING THE EXCUSE THAT HE WAS FIXING THE COVERS." SO SIGNATURE FACTS AGAIN, VERY CLOSE FACTUAL SIMILARITY FROM WHICH WE CAN DRAW AN INFERENCE THAT THESE ACTS WERE PART OF A COMMON DESIGN OR PLAN. WE HAVE NO SUCH SIMILARITIES IN THIS CASE. AGAIN AND AGAIN, WE HAVE CHALLENGED THE PEOPLE TO SHOW US WHERE ARE THE SIMILARITIES. WHERE IS THE SIMILARITY BETWEEN A FIGHT ON NEW YEAR'S EVE WHERE BOTH PARTIES HAVE BEEN DRINKING, AT LEAST SOME SLAPPING AND WHAT HAPPENED ON THAT SIDEWALK ON JUNE 12TH, 1994? WHERE IS THE SIMILARITY BETWEEN PEOPLE ARGUING ABOUT WHETHER SOMEBODY HAS HAD TOO MUCH TO DRINK AND WHO SHOULD DRIVE CARS BACK FROM A RESTAURANT AND WHAT HAPPENED ON THAT SIDEWALK ON JUNE 12TH, 1994? THERE'S JUST NO SIMILARITY HERE. FINALLY, WITH RESPECT TO THE 1101(B) EXCEPTION, WE HAVE TO ADDRESS THE ISSUE OF 352. THAT IS, ASSUMING WE FIND ENOUGH SIMILARITY TO SAY 1101(B) APPLIES, WE STILL HAVE TO LOOK UNDER 352 AT WHETHER THE DANGER OF SUBSTANTIAL PREJUDICE OF CONFUSING THE JURY OF UNDUE CONSUMPTION OF TIME, OF MISLEADING THE JURY OUTWEIGHS WHATEVER PROBATIVE VALUE THIS EVIDENCE MIGHT HAVE. AND HERE, YOUR HONOR, I CAN NOT STRESS TOO MUCH THE IMPORTANCE OF LOOKING AT THE PURPOSE FOR WHICH THIS EVIDENCE WILL BE USED IN ORDER TO ASSESS THE POTENTIAL PREJUDICIAL IMPACT. I MEAN IF WE ARE IN THE MIDST OF THE TRIAL WHERE THE ONLY ISSUE REALLY IN CONTENTION IS, DID MR. SIMPSON DO IT, AND THE PEOPLE COME IN SAYING, "WELL, WE WANT TO OFFER THIS TO EXPLAIN A RELATIONSHIP, WE WANT TO OFFER THIS TO SUGGEST A MOTIVE RELATED TO ESTRANGEMENT," WE HAVE TO ASSESS WHETHER A JURY IS GOING TO BE ABLE TO LIMIT THEIR CONSIDERATION OF THEIR EVIDENCE TO JUST THAT ISSUE OR WHETHER IN FACT THEY WON'T REALLY USE IT AS EVIDENCE OF IDENTITY AND USE IT AS EVIDENCE OF IDENTITY WITHOUT THE REQUISITE SIGNATURE FACTS THAT ARE DEMANDED BY THE LAW. THAT IS THE REAL RISK OF PREJUDICE THAT WE FACE IN THIS CASE. AND I THINK THAT THE RISK IS A VERY, VERY SUBSTANTIAL ONE WITH RESPECT TO MUCH OF THIS EVIDENCE; THAT THERE IS GREAT DANGER THAT IT WOULD BE MISUSED BY THE JURY, THAT THE JURY WOULD BE MISLED AND CONFUSED BY IT. WITH RESPECT TO WHAT KIND OF PREJUDICE MIGHT ENSUE, I FOUND A VERY INTERESTING CONTRAST BETWEEN MR. GOLDBERG'S ARGUMENT SAYING, "WELL, IT'S REALLY SILLY TO BELIEVE THAT A JURY WOULD ACTUALLY LOOK AT THESE PRIOR INCIDENTS OF ASSAULTIVE BEHAVIOR AND SAY, 'WELL, BECAUSE THE DEFENDANT HADN'T BEEN CONVICTED OF THOSE ASSAULTIVE BEHAVIORS, WE'RE GOING TO CONVICT HIM NOW OF A DOUBLE MURDER,'" THAT THAT SOMEHOW KIND OF PREJUDICE OCCURRING IN A TRIAL WAS BEYOND BELIEF. AND THEN MR. GORDON GOT UP AND MR. GORDON SAID, "YOU KNOW WHY WE'RE HERE. WE'RE HERE BECAUSE OF A FAILURE OF THE CRIMINAL JUSTICE SYSTEM. THE CRIMINAL JUSTICE SYSTEM LET NICOLE BROWN SIMPSON DOWN." I DON'T THINK WE COULD HAVE A BETTER EXAMPLE OF THE PREJUDICIAL IMPACT THIS KIND OF EVIDENCE CAN HAVE TO SAY TO A JURY, "WE LET THIS VICTIM DOWN, BUT NOW WE CAN MAKE UP FOR IT BY CONVICTING THIS MAN OF MURDER BECAUSE HE WASN'T CONVICTED. HE WASN'T BROUGHT TO JUSTICE FOR ALL OF THIS PRIOR ASSAULTIVE BEHAVIOR," AND THAT IS A TRUE SUBSTANTIAL RISK OF PREJUDICE IN THIS CASE. THE OTHER ASPECT OF 352 THAT WAS DISCUSSED WAS THE QUESTION OF UNDUE CONSUMPTION OF TIME, THAT SOMEHOW THE DEFENSE WAS IN A POSTURE HERE OF BLACKMAILING THE COURT IN SAYING, "WELL, IF WE HAVE TO LITIGATE ALL OF THE NUANCES OF ALL OF THESE PRIOR INCIDENTS, WE'RE GOING TO BE STUCK IN THIS TRIAL FOR A VERY LONG TIME LITIGATING A LOT OF ISSUES OF VERY LIMITED RELEVANCE." I FIND IT CURIOUS TO SUGGEST THAT THAT IS SOME SORT OF BLACKMAIL BY THE DEFENSE WHEN THE DEFENSE IS ONLY PUT IN THAT POSITION AFTER THE PROSECUTION USES A TABLOID BOOK AS KIND OF A SLUDGE DREDGE TO LOOK THROUGH A 17-YEAR RELATIONSHIP AND COME UP WITH EVERY CONCEIVABLE WITNESS, MANY OF WHOM THEY NOW RECOGNIZE ARE OF HIGHLY QUESTIONABLE CREDIBILITY AND TO BRING THAT ALL IN AND SAY, "WE WANT TO OFFER THIS IN EVIDENCE IN THIS TRIAL AND TO KEEP EXPANDING THE SCOPE OF THIS CASE FAR BEYOND THE QUESTION WITH WHICH MR. SIMPSON WAS CONFRONTED BY THE CHARGES THAT WERE FILED AGAINST HIM LAST JUNE OF WHETHER IN FACT HE COMMITTED THIS MURDER." NOW, LET ME ADDRESS THE QUESTION OF THE WHOLE ISSUE OF BATTERED WOMEN'S SYNDROME AND ITS RELEVANCE TO THIS TRIAL. WE'RE TOLD THAT WHAT WE HAVE HERE IS A TEXTBOOK EXAMPLE OF THE BATTERED WOMEN'S SYNDROME AND UNBROKEN PATTERN OF ESCALATING VIOLENCE CULMINATING IN A MURDER JUNE 12TH, 1994. AND WHEN WE LOOK AT THIS WHEEL OF THE BATTERED WOMEN'S SYNDROME, I THINK WE RECOGNIZE IMMEDIATELY THAT THERE ARE A LOT OF SPOKES MISSING FROM THIS WHEEL. THERE ARE A LOT OF EXCEPTIONS TO WHAT IS CALLED THE TEXTBOOK PATTERN OF THE BATTERED WOMEN'S SYNDROME. FOR EXAMPLE, NONE OF THE INCIDENTS OR THE EVIDENCE PRESENTED TO THE COURT IN THE COURSE OF THIS HEARING SUGGESTS ANY USE OF ECONOMIC ABUSE BY THE DEFENDANT IN ORDER TO CONTROL THE VICTIM IN THIS CASE. AND I CAN MAKE A BRIEF OFFER OF PROOF. WE BELIEVE THE EVIDENCE IN THIS CASE WILL SHOW QUITE TO THE CONTRARY; THAT FROM THE BEGINNING OF THEIR RELATIONSHIP, MR. SIMPSON ENCOURAGED NICOLE BROWN SIMPSON TO BE ECONOMICALLY INDEPENDENT. HE ENCOURAGED HER TO START HER OWN BUSINESS, TO BECOME SELF-SUFFICIENT. HE RECOMMENDED HER TO MANY FRIENDS IN TERMS OF HER INTERIOR DECORATING ABILITIES. AT ALL TIMES THROUGHOUT THEIR MARRIAGE, THEY MAINTAINED SEPARATE CHECKING ACCOUNTS. SO MRS. SIMPSON NEVER HAD TO ASK PERMISSION TO WRITE A CHECK. SHE HAD HER OWN CREDIT CARD ACCOUNTS. WHEN THEY WERE MARRIED, MR. SIMPSON MADE A GIFT TO MRS. SIMPSON OF A CONDO WORTH $500,000 WHICH BROUGHT HER A MONTHLY INCOME OF ABOUT $3,000 WHICH -- FOR WHICH SHE WAS TOTALLY NOT DEPENDENT ON MR. SIMPSON. HE PURCHASED FOR HER A FERRARI AUTOMOBILE, A MERCEDES AND A PORSCHE AUTOMOBILE AND ALL OF THOSE AUTOMOBILES WERE PUT IN HER OWN NAME. SHE WAS GIVEN COMPLETE CONTROL OVER THOSE VEHICLES. NOW, THERE WAS A BRIEF SUGGESTION THAT BECAUSE MR. SIMPSON AT SOME POINT COMPLAINED I BELIEVE IT WAS TO ONE OF A MEMBER OF MRS. SIMPSON'S FAMILY THAT HE WAS PAYING FOR THE DINNERS FOR HER BOYFRIENDS, IT WAS SUGGESTED THAT THIS WAS SOME SORT OF ATTEMPT TO EXERT ECONOMIC CONTROL. AND THE EVIDENCE WILL SHOW WHAT REALLY HAPPENED WAS, DURING THE PENDENCY OF THEIR DIVORCE, WHILE MR. SIMPSON WAS PAYING $25,000 A MONTH IN TEMPORARY SUPPORT, MRS. SIMPSON TOOK KEITH ZLOMSOWITCH TO DINNER AT A GOLF CLUB IN LAGUNA AND CHARGED IT TO MR. SIMPSON'S ACCOUNT. NOW, IS THAT ECONOMIC BLACKMAIL? IS THAT AN ATTEMPT TO EXERT CONTROL WHEN HE PROTESTS THAT THAT KIND OF ENTERTAINMENT IS STILL BEING BILLED TO HIM AT A TIME WHEN HE IS ALREADY PAYING SUBSTANTIAL AMOUNT OF TEMPORARY SUPPORT? THE SUGGESTION CONCERNING THIS TAX FRAUD INVESTIGATION, THAT THAT IS SOME SORT OF INTIMIDATION I THINK HAS BEEN FULLY EXPLAINED. AND IF YOUR HONOR LOOKS AT THE LETTER THAT WAS WRITTEN AND SEES THAT THE ONLY POINT BEING MADE IS THAT MR. SIMPSON CANNOT PARTICIPATE IN A FRAUD ON THE GOVERNMENT BY HAVING MRS. SIMPSON CLAIM THAT HER PRINCIPAL RESIDENCE IS HIS HOME, THAT'S THE ONLY POINT THE LETTER MAKES. IT DOES NOT ATTEMPT TO COERCE HER IN ANY WAY OR THREATEN HER OR EXERT CONTROL OVER HER. SO THAT SPOKE IS TOTALLY MISSING FROM THIS PICTURE OF ANY SORT OF ECONOMIC ABUSE. LIKEWISE MISSING IS ANY SUGGESTION THAT MR. SIMPSON EVER USED THE CHILDREN AS A MEANS OF CONTROL OVER HIS WIFE OR HIS FORMER WIFE. IN FACT, ON NUMEROUS OCCASIONS, THE EVIDENCE WILL SHOW THAT HE WAS COMPLIMENTARY OF HER ABILITY AS A MOTHER AND VERY SUPPORTIVE OF THE DECISIONS SHE WAS MAKING WITH RESPECT TO THE RAISING OF THE CHILDREN. THE ONLY TIME THE CHILDREN EVER CAME UP IN ANY OF ALL OF THESE INCIDENTS THAT WE HAVE GONE THROUGH ITEM BY ITEM WAS WITH RESPECT TO THE ZLOMSOWITCH INCIDENT WHEN MR. SIMPSON RAISED CONCERNS ABOUT SEXUAL ACTIVITY TAKING PLACE IN HIS HOME WHILE HIS CHILDREN WERE PRESENT AND COULD POSSIBLY ACCIDENTALLY INTERRUPT OR OBSERVE THAT ACTIVITY GOING ON. THE SUGGESTION THAT SOMEHOW AN AUDIT TRAIL CONFIRMS THE PRESENCE OF A BATTERING RELATIONSHIP SUGGESTS THAT THE ONLY MOTIVATION FOR MRS. SIMPSON TO MAINTAIN EVIDENCE OF ASSAULTIVE BEHAVIOR IN A SAFETY DEPOSIT BOX WAS FOR SOME POTENTIAL CRIMINAL CONSEQUENCES OF ABUSIVE BEHAVIOR. BUT THE FACTS WILL SHOW THAT ALL OF THIS TOOK PLACE IN THE WAKE OF THE 1989 INCIDENT, THAT PART OF THE AGREEMENT ENTERED INTO AS A RESULT OF THAT INCIDENT WAS MR. SIMPSON AGREEING THAT IF HE EVER STRUCK OR LAID A HAND ON MRS. SIMPSON AGAIN, THE PRENUPTIAL AGREEMENT WOULD BE VOIDABLE, AND THAT IT MIGHT SUGGEST A MOTIVE WHY AN AUDIT TRAIL WOULD BE MAINTAINED IN THIS CASE IN CASE MRS. SIMPSON EVER WANTED TO TRY TO EXERCISE THAT OPTION. AND I THINK IT'S SIGNIFICANT THAT NEVER ONCE WAS THAT OPTION EXERCISED EVEN IN THE COURSE OF A CONTENTIOUS DIVORCE PROCEEDING THREE YEARS LATER. IN THE COURSE OF THAT DIVORCE PROCEEDING, IN A DEPOSITION, THE EVIDENCE WILL SHOW MRS. SIMPSON STATED UNDER OATH THAT SINCE THE 1989 INCIDENT, THAT O.J. SIMPSON HAD NEVER LAID A HAND ON HER. NOW, WHAT DOES THAT SUGGEST IN TERMS OF A TEXTBOOK EXAMPLE OF BATTERED WOMEN'S SYNDROME? WHAT IT SUGGESTS TO ME IS THAT INTERVENTION WORKED; THAT IN THE WAKE OF THAT INCIDENT, WHEN MR. SIMPSON WENT TO COURT, PLED NO CONTEST, WAS GIVEN AS A CONDITION OF PROBATION THAT HE UNDERGO COUNSELING, THAT THAT COUNSELING WAS ACTUALLY QUITE SUCCESSFUL. THE PHYSICAL ABUSE CAME TO AN ABRUPT HALT. THERE WAS NO VIOLENCE IN ANY INCIDENT THEREAFTER. I MEAN EVEN LOOKING AT ALL OF THE ALLEGATIONS DREDGED UP BY THE PROSECUTION. AND I THINK WE CAN REST ASSURED THAT THEY HAVE DONE A COMPLETE INVESTIGATION OF ANY INCIDENT OF PHYSICAL VIOLENCE. THE ONLY INCIDENT AFTER 1989, AFTER JANUARY 1ST WAS THE ALLEGED INCIDENT INVOLVING THE AUTOMOBILE AND THE PUSHING AND SHOVING OF WHO WAS GOING TO GET IN WHAT AUTOMOBILE. AND APPARENTLY WHILE ONE WITNESS TO THAT INCIDENT CLAIMS THAT IT WAS AN EXAMPLE OF PHYSICAL ABUSE, IT WAS NOT CONSTRUED AS SUCH BY NICOLE BROWN SIMPSON, BECAUSE IN HER DEPOSITION, SHE SAID SINCE THE 1989 INCIDENT, O.J. HAD NOT LAID A HAND ON HER. AND THAT'S THE ONLY ALLEGATION. OF COURSE, THERE ARE FIVE OTHER WITNESSES TO THAT INCIDENT WHO MAY GIVE A VERY DIFFERENT VERSION. BUT WE HAVE ACTUALLY NOT ONE SINGLE BIT OF EVIDENCE OF ANY PHYSICAL ASSAULTIVE BEHAVIOR OR ABUSE TOWARD THE VICTIM AFTER JANUARY 1ST, 1989 WHEN THAT INTERVENTION TOOK PLACE.

THE PROBLEM WITH THIS WHEEL OF THE BATTERED WOMAN'S SYNDROME IS THAT IT IS A WHEEL, AND WHEELS CAN SPIN, AND THIS WHEEL CAN PUT A SPIN ON EVERYTHING THAT MR. SIMPSON DOES OVER THE COURSE OF A 17-YEAR RELATIONSHIP. IF HE BRINGS FLOWERS TO THE DOORSTEP, HE'S CONTROLLING. IF HE APOLOGIZES, HE'S MINIMIZING. IF HE CRITICIZES HIS WIFE FOR SEXUAL ESCAPADES IN THE VIEW OF PASSERSBY, HE'S HUMILIATING HER. IF HE BREAKS HER FAMILY PICTURES, HE'S DEMEANING HER. IF HE BREAKS HIS FAMILY PICTURES, WE ASSUME HE'S ACTING LIKE THE MASTER OF THE CASTLE. SO IT'S A SPINNING WHEEL THAT CAN PUT A SPIN ON ALL OF THIS BEHAVIOR. AND THIS IS NOT TO MINIMIZE SPOUSAL ABUSE. WE DON'T INTEND TO MINIMIZE IT AT ALL. THERE IS NO EXCUSE FOR ABUSIVE BEHAVIOR. BUT WHAT WE'RE REALLY LEFT WITH IN THIS CASE IS A RECORD OF OCCASIONAL LAPSES IN THE COURSE OF A 17-YEAR RELATIONSHIP THAT DON'T EVEN FIT THE CLASSIC EXAMPLE OF WHAT THE BATTERED WOMEN'S SYNDROME IS. BUT EVEN IF IT DID, THE QUESTION THAT THIS COURT REALLY FACES IS WHAT WOULD THAT PROVE? WOULD THAT PROVE THAT MR. SIMPSON IS THE PERPETRATOR OF A MURDER BECAUSE HE WAS THE PERPETRATOR OF ABUSE IN A BATTERING RELATIONSHIP? AND EVEN THE EXPERT PRESENTED BY THE PEOPLE WOULD NOT VENTURE OUT ON TO THAT LIMB, WOULD NOT SAY THAT BASED ON THE EARMARKS OF THE BATTERING WOMEN'S SYNDROME, WE CAN MAKE ANY SORT OF PREDICTION AS TO WHETHER THE BATTERER IN THAT RELATIONSHIP IS LIKELY TO BE THE PERPETRATOR OF A HOMICIDE. AND THE REASON HE WOULDN'T VENTURE OUT ON TO THAT LIMB IS BECAUSE HE WAS QUITE HONEST AND FRANK IN ADMITTING THAT THAT'S REALLY NOT THE PURPOSE OF THE RESEARCH THAT HAS BEEN DONE WITH RESPECT TO THE BATTERED WOMEN'S SYNDROME. THE REAL PURPOSE IS TO EXPLAIN THE CONDUCT OF THE VICTIMS. AND WHEN THE STATE LEGISLATURE INDICATED THAT UNDER LIMITED CIRCUMSTANCES, EVIDENCE OF THE BATTERED WOMEN'S SYNDROME WILL BE ADMISSIBLE IN A CRIMINAL TRIAL, THEY DELINEATED WHAT THOSE CIRCUMSTANCES WOULD BE, WHERE IT MIGHT BE RELEVANT TO PROVE THE STATE OF MIND OF THE VICTIM. AND THE REFERENCE TO THE POSSIBLE USE OF THAT EVIDENCE BY THE PROSECUTION WAS EXPLAINED IN THE LEGISLATIVE REPORTS AS WHERE IT BECOMES NECESSARY TO EXPLAIN WHY A VICTIM REFUSES TO CORROBORATE OR RECANTS OR WON'T TESTIFY AGAINST THE BATTERER AND THE PROSECUTION WANTS TO CARRY ON THE PROSECUTION OF THE BATTERER. UNDER THOSE CIRCUMSTANCES, BRINGING IN EVIDENCE OF THE BATTERED WOMEN'S SYNDROME WILL EXPLAIN THE STATE OF MIND OF THE VICTIM, BUT IT CAN'T BE USED AS EVIDENCE TO SHOW IT'S MORE LIKELY THAT THE BATTERER DID THE ABUSIVE BEHAVIOR WITH WHICH HE IS ACCUSED. AND THAT EXCEPTION REALLY GETS TO THE HEART OF WHAT THE PROSECUTION WANTS TO DO WITH THE BATTERED WOMEN'S SYNDROME EVIDENCE IN THIS CASE. IT'S NOT GOING TO BE TO EXPLAIN ANY CONDUCT OF THE VICTIM. THERE ISN'T ANY CONDUCT OF THE VICTIM THAT IS IN ISSUE IN THIS CASE. IT'S SIMPLY NOT SOMETHING WE'RE GOING TO LITIGATE, THAT NEEDS TO BE EXPLAINED. ITS ONLY PURPOSE IS TO DRAW AN INFERENCE THAT IF SHE WAS THE VICTIM OF A BATTERING RELATIONSHIP, THEN MR. SIMPSON WAS A BATTERER; AND, THEREFORE, IT'S MORE LIKELY THAT HE COMMITTED THIS MURDER ON JUNE 12TH, 1994. AND THAT IS PRECISELY THE USE OF THIS EVIDENCE THAT IS FORBIDDEN BY SECTION 1107 OF THE EVIDENCE CODE. I DON'T THINK THERE'S ANY DISAGREEMENT BETWEEN OUR READING OF BLEDSOE AND BOWKER AND ARIS AND THE PEOPLE'S READING OF THOSE CASES. WHAT'S SIGNIFICANT IS THAT IN ENACTING 1107, THE LEGISLATURE HAD THE SAME UNDERSTANDING AS WE DO OF THOSE CASES AND DID NOT INTEND TO IN ANY WAY DISTURB THE FORCE OF THOSE RULINGS AND WANTED TO ENACT A RULE THAT IS CONSISTENT WITH THOSE RULINGS, THAT THIS SYNDROME EVIDENCE WILL NOT BE ADMISSIBLE FOR THE PURPOSE TO WHICH THE PEOPLE INTEND TO PUT IT. ONE OF THE POTENTIAL USES OF THIS BATTERED WOMEN'S SYNDROME, EXPERT TESTIMONY WAS REVEALED IN A VERY INTERESTING WAY BY MS. BODIN'S ARGUMENT WHERE SHE SUGGESTED THAT WHAT THEY REALLY WANTED TO DO WITH ALL OF THIS HEARSAY EVIDENCE THAT THEY RECOGNIZE MAY NOT BE ADMISSIBLE WAS TO PUT THE DEFENSE ON NOTICE, AND SHE EXPLAINED WHAT WE WERE BEING PUT ON NOTICE OF. WE WERE BEING PUT ON NOTICE THAT IF THE DEFENDANT TESTIFIES, SOME OF THIS MAY BE USED TO IMPEACH HIS TESTIMONY. AND THAT OF COURSE IS A RISK WE'RE WELL AWARE OF. WE DON'T NEED TO BE PUT ON NOTICE OF THAT. BUT SECONDLY, SHE SAYS, "AND WE'RE GOING TO BE CALLING AN EXPERT, AND HEARSAY EVIDENCE IS USABLE BY AN EXPERT TO EXPLAIN THE BASIS OF THE OPINION TO WHICH THE EXPERT COMES IF IT IS INFORMATION THAT EXPERTS IN THIS FIELD ORDINARILY RELY ON." AND AT THAT POINT, A LITTLE ALARM SIGNAL STARTED GOING OFF IN MY HEAD; THAT THE REAL AGENDA HERE WITH TRYING TO BRING IN A BATTERED WOMEN'S EXPERT MAY SIMPLY BE TO FIND A WAY TO FUNNEL IN ALL OF THE INADMISSIBLE HEARSAY BY HAVING THE EXPERT COME IN AND SAY, "WELL, MY OPINION IS BASED ON THIS AND THIS AND THIS AND THIS," ALL OF WHICH IS NOT ADMISSIBLE BECAUSE IT'S HEARSAY. AND THEN WE'LL INSTRUCT THE JURY THAT THEY SHOULDN'T CONSIDER IT FOR THE TRUTH OF WHAT WAS BEING ASSERTED, BUT ONLY TO THE EXTENT IT SUPPORTS THE OPINION OF THE EXPERT. SO THERE IS A VERY SUBSTANTIAL RISK OF PREJUDICE, OF THE ATTEMPTING TO BRING IN THROUGH THE BACK DOOR INADMISSIBLE HEARSAY EVIDENCE IN THE EMPLOYMENT OF THIS BATTERED WOMEN'S EXPERT AS WELL. AND I THINK THE LEGISLATURE WAS WELL AWARE OF THOSE KINDS OF DANGERS WHEN IT ENACTED THE PARTICULAR EXCEPTION IT ENACTED TO SECTION 1107. NOW, LET ME TURN TO THE HEARSAY PROBLEMS IN THIS CASE. A PRINCIPAL HEARSAY PROBLEM IS GOING TO BE IN THE CONTEXT OF THE 911 TAPES. AND THERE ARE TWO 911 TAPES. THE 911 TAPE FOR THE 1989 INCIDENT WE WILL OBJECT TO AS SIMPLY IRRELEVANT. YOUR HONOR WILL NOTE -- AND YOU HAVE A TRANSCRIPT OF THAT 911 CALL NOW -- THAT THE LEGEND INCLUDES AN END FOR THE STATEMENT OF NICOLE BROWN SIMPSON IN THAT CALL. AND THEN YOU READ THROUGH THE TRANSCRIPT, AND YOU WON'T FIND AN END ANYWHERE IN THERE. THERE IS NOT ONE UTTERANCE IN THAT ENTIRE TRANSCRIPT THAT IS ATTRIBUTED TO NICOLE BROWN SIMPSON. THE TRANSCRIPT IS SIMPLY A TRANSCRIPT OF SOMEBODY SCREAMING OVER THE BACKGROUND OF A 911 OPERATOR. AND WE WILL CONTEND THAT EVIDENCE OF THAT NATURE WOULD BE EXTREMELY PREJUDICIAL. IT WOULD HAVE NO PROBATIVE VALUE. IT SHOULD BE EXCLUDED NOT JUST AS HEARSAY, BUT BECAUSE IT WOULD VIOLATE 352. IT GETS US NOWHERE IN TERMS OF EXPLAINING THAT INCIDENT OR WHAT HAPPENED. THE 1993 TAPE PRESENTS A MUCH MORE DIFFICULT PROBLEM FOR THE COURT. AND I DON'T THINK YOUR HONOR CAN SIMPLY RULE THAT THAT TAPE IS ADMISSIBLE OR NOT ADMISSIBLE WITHOUT CAREFULLY EXAMINING THE DIALOGUE THAT TOOK PLACE IN THE COURSE OF THAT 14-MINUTE CONVERSATION. SIMPLY SAYING THAT THIS IS A SPONTANEOUS STATEMENT DOES NOT MAKE THE WHOLE 14-MINUTE CONVERSATION ADMISSIBLE. THERE WERE PARTS OF THAT CONVERSATION IN WHICH A VERY LUCID, CALM CONVERSATION WAS TAKING PLACE IN RESPONSE TO VERY PROBING QUESTIONS. IT WAS NOT SPONTANEOUS AT ALL. AND EVEN WITH RESPECT TO THOSE VERY DISCREET PARTS OF THE TRANSCRIPT THAT MIGHT BE LABELED SPONTANEOUS, THEY CONTAIN MANY EXPRESSIONS OF OPINION. AND WE CONTEND -- AND I'VE LOOKED AT GARCIA, AND I DON'T THINK GARCIA UNDERCUTS THIS POSITION AT ALL. IN FACT, WE RELY ON PEOPLE VERSUS MYRON, M-Y-R-O-N, A CASE THAT IS CITED IN OUR BRIEF FOR THE PROPOSITION THAT EVEN WITHIN THE CONTEXT OF SPONTANEOUS DECLARATIONS, THERE MAY BE EXPRESSIONS OF OPINION THAT ARE NOT ADMISSIBLE, THAT DO NOT COME WITHIN THE HEARSAY EXCEPTION. THE TASK FOR THE COURT IN LOOKING AT THAT IS I THINK WELL LAID OUT IN THE CASE OF PEOPLE VERSUS FARMER. AND IN FARMER, THE COURT INDICATED THAT THE CRUCIAL ELEMENTS IN DETERMINING WHETHER A DECLARATION IS SUFFICIENTLY RELIABLE TO BE ADMISSIBLE UNDER THAT EXCEPTION TO THE HEARSAY RULE IS NOT THE NATURE OF THE STATEMENT, BUT THE MENTAL STATE OF THE SPEAKER. AND THE REASON THAT THE COURT IN FARMER FOUND THAT A 911 TAPE WAS ADMISSIBLE AS A SPONTANEOUS STATEMENT WAS BECAUSE OF THE MENTAL STATE OF THE SPEAKER, WHO HAD JUST BEEN SHOT AND WAS EXPERIENCING SEVERE PAIN AT THE TIME HE WAS SPEAKING INTO THE TELEPHONE. AND THE COURT RECOGNIZED -- IT SAID:

"IT IS TRUE THAT WE HAVE RARELY HELD THE ANSWERS TO SUCH EXTENSIVE QUESTIONING TO BE SPONTANEOUS UTTERANCES. NONETHELESS, THERE IS NO DOUBT THAT THE DECLARANT HERE, SCHMIDT HILL, WAS EXCITED OR PERHAPS MORE ACCURATELY DISTRAUGHT AND IN SEVERE PAIN. HE WAS NOT MERELY AN UNINJURED PERSON WHOSE EXCITEMENT MIGHT WANE AND THUS BE IN A POSITION TO FABRICATE ANSWERS THROUGH THE SOBERING INTERROGATION OF AN INVESTIGATOR.

"WHILE HE WAS BEING QUESTIONED, THE INTENSE PAIN OF HIS GUNSHOT WOUNDS AND THE CONCERN HE RIGHTLY HAD ABOUT HIS SURVIVAL NO DOUBT PREOCCUPIED HIM SO HE COULD NOT HAVE CONTEMPLATED SPINNING A FALSE TALE." AND THAT'S VERY TELLING BECAUSE FROM THIS 911 CALL, WE DO HAVE AN UNINJURED WITNESS WHO HAS NOT BEEN PHYSICALLY ASSAULTED, WHOSE EXCITEMENT MIGHT WANE AND DOES WANE. AND WE BELIEVE THAT THE WANING IS VERY APPARENT IN A READING OF THE TRANSCRIPT OF THAT 911 CALL. NOW, THE OTHER HEARSAY -- AND AGAIN, IN OUR OPENING ARGUMENT, WE CHALLENGED THE PEOPLE TO SAY, WELL, COME UP WITH A PLAUSIBLE HEARSAY EXCEPTION UNDER WHICH ALL OF THESE STATEMENTS OF THE NICOLE -- OF THE VICTIM, NICOLE BROWN SIMPSON, TO OTHER THIRD PARTIES COULD COME IN AS AN EXCEPTION TO THE HEARSAY RULE. AND THE ONLY EXCEPTION THAT THEY COULD COME UP WITH -- AND IT'S CITED WITH RESPECT TO THE REMAINING HEARSAY THAT THEY STILL HAVE ON THE LIST, AND I'LL GO THROUGH THESE ITEMS VERY QUICKLY JUST TO RESTATE OUR OBJECTIONS. THE HEARSAY THAT IS STILL ON THIS LIST, THE ONLY LEGAL THEORY OFFERED BY THE PEOPLE IS SECTION 1250 OF THE CALIFORNIA EVIDENCE CODE. AND THEY'RE SAYING THAT 1250 ALLOWS STATEMENTS OF FEAR, OF STATE OF MIND TO SHOW THE DECLARANT'S STATE OF MIND OR TO EXPLAIN THE DECLARANT'S CONDUCT. THE ONLY PROBLEM WITH THAT IS THAT THE DECLARANT'S STATE OF MIND AND THE DECLARANT'S CONDUCT IS NOT IN ISSUE IN THIS CASE. THERE IS NOTHING TO PROVE WITH RESPECT TO THE STATE OF MIND OR THE CONDUCT OF NICOLE BROWN SIMPSON WITH RESPECT TO THE EVENTS THAT TOOK PLACE ON THE EVENING OF JUNE 12TH. THE ATTEMPTS TO COME UP WITH SUCH AN EXPLANATION -- AND I HAVE -- IF I COULD JUST HAVE A MOMENT.

(BRIEF PAUSE.)

MR. UELMEN: HERE THEY ARE. IT WAS SUGGESTED, FIRST OF ALL, THAT THIS EVIDENCE MIGHT SHOW THAT THE VICTIM WAS TAKEN BY SURPRISE; THAT IF IN FACT SHE HAD A FEAR OF MR. SIMPSON, SHE WOULD NOT HAVE GONE OUTSIDE IF SHE KNEW THE DEFENDANT WAS OUT THERE. AND OF COURSE, THAT ASSUMES THAT THE DEFENDANT WAS OUT THERE. THERE'S NOT GOING TO BE ANY DISPUTE ABOUT THAT. THERE'S NOT GOING TO BE ANY CONTENTS IN THIS CASE THAT THESE TWO VICTIMS WERE NOT TAKEN BY SURPRISE. WE BELIEVE THEY WERE. THEY WERE TAKEN BY SURPRISE BY THE PERSONS WHO COMMITTED THIS MURDER. THERE'S NO EXPLANATION NECESSARY TO SHOW WHY THERE WOULD BE ANY DEGREE OF CAUTION ON THE PART OF THE VICTIM THAT WOULD ARISE IN THE CONTEXT OF THESE PRIOR HEARSAY STATEMENTS. AND THE OTHER THEORY IS THAT THIS EXPLAINS ESTRANGEMENT; HER CONDUCT IN DISTANCING HERSELF SOMEHOW MOTIVATED THE MURDER, THAT THESE HEARSAY STATEMENTS WILL SHOW THAT NICOLE BROWN SIMPSON WANTED TO DISENGAGE FROM MR. SIMPSON AND THAT SUPPLIES THE MOTIVE FOR HIM MURDERING HER. YOU KNOW, THAT'S A PLAUSIBLE THEORY IF MR. SIMPSON KNEW IT, BECAUSE THE STATE OF MIND THAT WE'RE TALKING ABOUT PROVING AND THAT'S RELEVANT IN THIS CASE IN TERMS OF HIS MOTIVE FOR A MURDER ONLY ARISES IF HE KNEW IN FACT THAT THESE STATEMENTS WERE MADE, IF THESE STATEMENTS WERE MADE TO HIM OR THEY WERE COMMUNICATED TO HIM SOMEHOW. SO THE FACT THAT MRS. SIMPSON MAKES A CALL, FOR EXAMPLE, TO A BATTERED WOMAN'S SHELTER BEING OFFERED TO SHOW HER ESTRANGEMENT FROM HER HUSBAND AND HER ATTEMPT TO SEPARATE HERSELF FROM HIM PROVES ABSOLUTELY NOTHING IN TERMS OF HIS STATE OF MIND IF HE DIDN'T KNOW THAT CALL WAS EVER MADE. THE ISSUE IN THIS CASE IS NOT MS. SIMPSON'S STATE OF MIND, BUT MR. SIMPSON'S STATE OF MIND, WHAT HE KNEW IN TERMS OF ANY MOTIVE OF ESTRANGEMENT. WHAT I FIND REMARKABLE IS THAT THE ONLY EXCEPTION SEIZED UPON BY THE PEOPLE TO JUSTIFY THE ADMISSION OF THESE HEARSAY STATEMENTS IS SECTION 1250(T) OF THE EVIDENCE CODE, AND SECTION 1250 OF THE EVIDENCE CODE IS THE SAME EXCEPTION THAT WAS RELIED UPON IN IRELAND AND IN ARCEGA. I DON'T THINK WE COULD HAVE -- I MEAN THIS IS AN UNUSUAL POSITION FOR A DEFENSE POSITION TO HAVE, TO HAVE TWO RULINGS FROM THE CALIFORNIA SUPREME COURT ON ALL FOURS DIRECTLY IN HIS OR HER FAVOR. SO I GUESS I WANT TO GLORY IN IT. I WANT TO REALLY RACK MYSELF UP IN THESE CASES BECAUSE THEY ARE PRECISELY ON POINT. THEY DEAL WITH PRECISELY THE SAME THEORY, THE SAME EXCEPTION. AND IN BOTH CASES, THE COURT SAID:

"IT IS REVERSIBLE ERROR TO ENTER INTO EVIDENCE HEARSAY STATEMENTS OF THE VICTIM EXPRESSING FEAR OF THE DEFENDANT ACCUSED OF THE VICTIM'S MURDER ON THE VERY DAY THAT THE VICTIM WAS MURDERED." YOU COULDN'T HAVE A STRONGER MORE TELLING STATEMENT OF A LEGAL PRINCIPAL THAN WE HAVE IN IRELAND AND ARCEGA, AND THAT SHOULD BE DETERMINATIVE OF THE ISSUE; THAT THIS HEARSAY WILL NOT BE ADMISSIBLE SIMPLY BECAUSE THE STATE OF MIND AND THE CONDUCT OF THE VICTIM IS NOT GOING TO BE AN ISSUE IN THIS CASE. NOW, TO CONCLUDE, WHAT I WOULD LIKE TO DO IS JUST TAKE A BRIEF MOMENT TO QUICKLY GO THROUGH THE APPRECIATED LIST THAT WE ARE NOW LEFT WITH AND EXPRESS FOR THE COURT THE GROUNDS OF THE DEFENDANT'S OBJECTIONS TO THE ADMISSION OF THESE REMAINING ITEMS. ITEM NUMBER 3, WE OBJECT TO ITS ADMISSION ON THE GROUND THAT IT IS HEARSAY. MR. HUGHES' EXPLANATION OF THIS RED SPOT IS SIMPLY RESTATING THE EXPLANATION THAT HE GOT FROM NICOLE BROWN SIMPSON. AND THERE IS NO FOUNDATIONAL SHOWING OF ANY EXCITED UTTERANCE IN THE COURSE OF THIS CONVERSATION BETWEEN MS. SIMPSON AND MR. HUGHES. AND WE ALSO OBJECT ON THE GROUNDS THAT IT IS IRRELEVANT UNDER SECTION 1101 AND THAT ITS PREJUDICIAL IMPACT WOULD OUTWEIGH ITS PROBATIVE VALUE UNDER SECTION 352. ITEM NUMBER 7, WE OBJECT VERY STRONGLY ON THE GROUNDS OF 1101 ON THE GROUND THAT THERE IS NO SIMILARITY. THERE IS NO SIMILARITY BETWEEN THE FACTS OF THIS INCIDENT AND THE MURDER THAT TOOK PLACE JUNE 12TH, 1994, AND ALSO ON GROUNDS OF 352, THAT ITS PROBATIVE VALUE IS OUTWEIGHED BY ITS PREJUDICIAL IMPACT. ITEM NUMBER 8, WE WILL RAISE INITIALLY A 403 OBJECTION PRELIMINARILY TO THE ADMISSION OF THIS EVIDENCE BECAUSE WE WILL CONTEND THAT THERE IS NO EVIDENCE TO ESTABLISH THE DEFENDANT WAS RESPONSIBLE FOR ANY OF THE CONDUCT BEING DESCRIBED; THAT IS THE BREAKING OF PICTURE FRAMES. THE MAID SIMPLY DESCRIBES ENTERING THE HOME AND FINDING BROKEN PICTURE FRAMES WITHOUT ANY INDICATION OF WHO BROKE THEM. SO UNTIL THAT'S ESTABLISHED, WE HAVE A 403 OBJECTION. IF IT IS ESTABLISHED THAT MR. SIMPSON DID IT, WE WOULD CONTEND IT'S IRRELEVANT UNDER 1101, NO SIMILARITY. IT DOESN'T PROVE ANY FACT OR ISSUE IN THIS CASE, AND WE ALSO OBJECT ON GROUNDS OF 352. ITEM NUMBER 9, THE DAMAGE TO THE MERCEDES AUTOMOBILE, AN INTERESTING CONTENTION HERE BECAUSE WE INDICATE THAT THE EVIDENCE OF THIS WOULD COME FROM DETECTIVE FUHRMAN, WHO MADE NO CONTEMPORANEOUS ACCOUNT OF THE INCIDENT, BUT ONLY WROTE IT UP IN A LETTER FOUR YEARS LATER. AND THE PROSECUTORIAL RESPONSE WAS, "WELL, WE DON'T JUST HAVE DETECTIVE FUHRMAN. WE HAVE A LOS ANGELES POLICE SERGEANT WHO FORMERLY WORKED FOR WESTEC SECURITY WHO ALSO WILL GIVE AN ACCOUNT OF THIS INCIDENT." AND WHEN WE LOOKED THROUGH THE DISCOVERY -- AND I BELIEVE MARK DAY IS HIS NAME -- AT THE STATEMENT FOR MR. DAY, WE DISCOVERED THAT MR. DAY'S STATEMENT WAS DATED 1994. THAT IS, MR. DAY WAS SIMPLY RECOUNTING FROM MEMORY AFTER HE SPOKE TO MR. FUHRMAN OF WHAT HAD HAPPENED NINE YEARS BEFORE WHEN HE WAS WORKING AS A WESTEC SECURITY GUARD. AND WE BELIEVE THE EVIDENCE WILL ESTABLISH SUBSTANTIAL CONTRADICTIONS BETWEEN THE VERSION OF THIS EVENT PRESENTED BY DETECTIVE FUHRMAN AND THE VERSION OF THIS EVENT PRESENTED BY SERGEANT DAY. SO ON THAT GROUND, WE WILL ASK FOR A 403 DETERMINATION AS TO WHAT ACTUALLY HAPPENED BEFORE THE COURT ADMITS THE EVIDENCE, AND WE WILL OBJECT BOTH ON GROUNDS OF 1101, RELEVANCY, AND 352. THE BICYCLE INCIDENT, ITEM NUMBER 10, ALSO PRESENTS A SUBSTANTIAL 403 PRELIMINARY QUESTION BECAUSE THIS INCIDENT OF COURSE IS NOT GOING TO BE ADMISSIBLE UNLESS WE HAVE SOME EVIDENCE OF HOW THE INJURIES OCCURRED. AND SIMPLY BRINGING IN A PHYSICIAN WHO SAYS, "WELL, I'M NOT SO SURE THAT I WAS BEING TOLD THE TRUTH WITH RESPECT TO THIS INJURY OCCURRING" -- AND FALLING OFF A BICYCLE DOESN'T GET US VERY FAR IN TERMS OF EXPLAINING HOW THE INJURIES DID OCCUR -- THE INJURIES ARE TOTALLY IRRELEVANT UNLESS THEY WERE THE RESULT OF SOME SORT OF ASSAULTIVE BEHAVIOR BY MR. SIMPSON AND THAT BEHAVIOR HAS SOME SORT OF SIMILARITY TO THE BEHAVIOR INVOLVED IN THIS MURDER ON JUNE 12TH. SO WE'LL OBJECT IN TERMS OF 403 THAT THERE'S NO PRELIMINARY SHOWING THAT IT'S EVEN RELATED TO MR. SIMPSON, AND IF THAT OBSTACLE IS OVERCOME, ON THE GROUNDS OF BOTH 1101 AND 352. THE "DISNEY ON ICE" INCIDENT WE WILL OBJECT ON GROUNDS OF 1101 AND 352. THE INCIDENT BEARS NO SIMILARITY TO ANYTHING THAT HAPPENED WITH RESPECT TO THE COMMISSION OF THIS MURDER, AND THERE IS SUBSTANTIAL DANGER OF PREJUDICE OUTWEIGHING ITS PROBATIVE VALUE. ITEM NUMBER 13 OF COURSE IS THE JANUARY 1ST, 1989 INCIDENT THAT RESULTED IN A NO CONTEST PLEA IN A CRIMINAL PROCEEDING. SO THE OBJECTION HERE WILL BE THREEFOLD. FIRST OF ALL, UNDER 1101, THE LACK OF SIMILARITY OF THIS INCIDENT TO ANYTHING THAT HAPPENED JUNE 12TH MAKES IT IRRELEVANT. UNDER 352, ITS PROBATIVE VALUE IS FAR OUTWEIGHED BY ITS PREJUDICIAL IMPACT. AND THEN SEPARATELY, WE OBJECT ON THE GROUNDS OF HEARSAY TO THE USE OF THE 911 TAPE TO CORROBORATE THAT INCIDENT. THERE WILL BE NO OBJECTION TO THE LETTER IN WHICH THE DEFENDANT AGREES TO VOID THE PRENUPTIAL AGREEMENT. OH, NUMBER 11. I NEED TO GO BACK. NUMBER 11 IS THE INCIDENT REFERRED TO AS HUMILIATION OF MRS. SIMPSON BY MR. SIMPSON'S EXPRESSIONS OF OUTRAGE THAT A GAY MAN HAD KISSED ONE OF THEIR CHILDREN. THERE'S GOING TO BE A 403 HEARING NECESSARY IF THIS INCIDENT IS OFFERED BECAUSE WE BELIEVE THE EVIDENCE WILL SHOW A VERY DIFFERENT FACTUAL SCENARIO; THAT IN FACT MR. SIMPSON'S OUTRAGE WAS ENGENDERED BY A STATEMENT BY NICOLE BROWN SIMPSON CALLING MR. SIMPSON'S FATHER A FAG, KIND OF A REVERSE HUMILIATION. I THINK IT'S WORTH NOTING THAT ALL OF THE HUMILIATION IN THIS RELATIONSHIP WAS NOT A ONE-WAY STREET. AND WITH RESPECT TO THIS INCIDENT IN PARTICULAR, THERE IS A SUBSTANTIAL VARIANCE IN THE EVIDENCE AS TO HOW IT HAPPENED AND WHAT ITS SIGNIFICANCE ACTUALLY IS. ONCE WE GET PAST THAT, WE WOULD CONTEND OF COURSE THAT IT BEARS NO SIMILARITY WHATSOEVER TO ANYTHING THAT HAPPENED IN 1994 AND ITS PREJUDICIAL IMPACT WOULD FAR OUTWEIGH ITS PROBATIVE VALUE. ITEM NO. 16, WE HAVE A VERY SIMPLE LETTER SAYING -- THERE'S AN OBJECTION TO THAT. THE ONLY EXCEPTION RELIED UPON IS 1250, AND WE WOULD ANSWER THAT BY SAYING THE STATE OF MIND OR THE CONDUCT OF NICOLE BROWN SIMPSON IS SIMPLY NOT GOING TO BE AN ISSUE WITH RESPECT TO THIS STATEMENT OR ANY STATEMENT MADE BY MS. SIMPSON. ITEM NUMBER 17, WE'RE IN A DIFFICULT POSITION BECAUSE WE DON'T HAVE ANY DATES TO WHICH THIS INCIDENT OCCURRED WITHIN AN ENTIRE TWO-YEAR SPREAD. WE'RE SIMPLY TOLD THIS HAPPENED SOMETIME IN 1988 OR 1989. THE DATE BECOMES VERY SIGNIFICANT, YOUR HONOR, BECAUSE JANUARY 1ST, 1989 WAS THE INCIDENT LEADING TO THE AGREEMENT THAT THE PRENUPTIAL AGREEMENT WOULD BE VOIDED IF THERE WAS ANY ACTIVE PHYSICAL ASSAULT. AND HERE WE HAVE A WITNESS THAT SAID, "I SAW AN ACTIVE PHYSICAL ASSAULT. I SAW MR. SIMPSON BACK-HAND HIS WIFE IN THE BACK OF A LIMOUSINE EITHER IN 1988 OR 1989." WE HAVE NO IDEA WHEN THIS OCCURRED. AND UNTIL THE PEOPLE CAN SPECIFY WITH SOME DEGREE OF CERTAINTY WHEN THIS HAPPENED, SOME OF THE CIRCUMSTANCES BY WHICH THIS MIGHT BE RECONSTRUCTED, WE BELIEVE THE DEFENDANT WOULD BE SIGNIFICANTLY PREJUDICED BY HAVING TO ANSWER TO A CHARGE LIKE THIS AS A CHARGE OF RELATED CONDUCT THAT HE HAS TO EXPLAIN SOMEHOW IN THE COURSE OF THIS TRIAL. ASSUMING WE GET OVER THAT OBSTACLE, OF COURSE WE STILL RESERVE ON 1101 AND A 352 OBJECTION ON THE GROUNDS THAT THIS BEARS NO SIMILARITY. THERE IS NO EXPLANATION OF THE CIRCUMSTANCES FROM WHICH THIS CAN EVEN BE TIED TO ANY EVENTS TAKING PLACE ON JUNE 12TH, 1994. THE RED ONION INCIDENT, NUMBER 18, AGAIN, WE HAVE AN 1101 AND A 352 OBJECTION ON THE GROUNDS THAT THERE IS NO SIMILARITY. ITEM 21, THERE WON'T BE ANY CONTENTION ABOUT THE FILING OF THE DIVORCE. ITEM 22, THE MEZZALUNA INCIDENT AND ITEM 23, THE TRYST INCIDENT, BOTH ALLEGES CIRCUMSTANCES WHERE MR. SIMPSON IS OBSERVED IN A RESTAURANT AT THE SAME TIME THAT MRS. SIMPSON IS. AND IN ONE CASE, IT IS ALLEGED HE STARED AT THE PEOPLE SHE WAS WITH, AND IN ANOTHER INCIDENT, HAD A CONVERSATION WITH THOSE PEOPLE. NOW, THE RELEVANCE OF THIS THE PEOPLE ARGUE IS THAT IT'S GOING TO SHOW STALKING. AND AT THIS POINT, I THINK IT'S WORTH THE COURT NOTING THAT STALKING IS A LEGAL TERM THAT HAS A LEGAL DEFINITION. THE CALIFORNIA PENAL CODE, SECTION 646.9 DEFINES STALKING TO ENCOMPASS ANY PERSON WILLFULLY, MALICIOUSLY AND REPEATEDLY FOLLOWING OR HARASSING ANOTHER PERSON. NOW, WE WILL IMPOSE A SIGNIFICANT AND SUBSTANTIAL 403 OBJECTION TO THE JURY HEARING ANY OF THIS EVIDENCE UNTIL IT IS ESTABLISHED THAT WHAT IS ACTUALLY GOING ON IS STALKING. IT'S IRRELEVANT THAT MR. SIMPSON AND HIS WIFE OR HIS FORMER WIFE HAPPENED TO FREQUENT THE SAME RESTAURANTS. IN FACT, THERE'S A VERY REASONABLE EXPLANATION FOR THAT. IF IN THE COURSE OF A 17-YEAR RELATIONSHIP PEOPLE HAVE A NUMBER OF FAVORITE RESTAURANTS, JUST THE FACT THAT THEY GET DIVORCED DOESN'T MEAN THAT ONE OF THEM HAS TO STOP GOING TO THEIR FAVORITE RESTAURANT. AND IT SHOULDN'T SURPRISE US AT ALL THAT THESE TWO PEOPLE HAPPENED TO ON OCCASION FIND THEMSELVES IN THE SAME RESTAURANT. AND SIMPLY TO INFER FROM THAT FACT ALONE, WHICH IS WHAT'S GOING ON HERE, THAT THAT'S SOME SORT OF STALKING ACTIVITY IS NOT AN INFERENCE THAT CAN BE JUSTIFIED BY THE EVIDENCE. SO WE'LL OBJECT NOT ONLY ON 403 GROUNDS, THAT THIS IS NOT STALKING ACTIVITY, BUT ON GROUNDS OF 1101 AND 352 AS WELL, THAT THIS ACTIVITY BEARS NO RELATIONSHIP OR NO SIMILARITY TO WHAT HAPPENED ON JUNE 12TH. THE ENDING OF THE RELATIONSHIP WITH MR. ZLOMSOWITCH IS RELEVANT ONLY IF THE RELATIONSHIP WITH MR. ZLOMSOWITCH BECOMES EVIDENCE IN THE FIRST PLACE. AND WITH RESPECT TO THAT INCIDENT, WE HAVE ARGUED THAT THE INFERENCE THEY WANT TO DRAW FROM IT IS JUST COUNTER TO WHAT ACTUALLY HAPPENED. I MEAN THE FACT THAT MR. SIMPSON DIDN'T BARGE IN, DIDN'T INTERRUPT THEM, DID NOT CONFRONT THEM IN AN ANGRY MANNER SIMPLY UNDERCUTS ANY SUGGESTION THAT THIS IS A PRIOR SYMBOL OR INCIDENT THAT EXPLAINS WHAT HAPPENED ON THE NIGHT OF JUNE 12TH, 1994. IN FACT, IT MAKES THE SCENARIO THAT THE PEOPLE WANT TO PRESENT OF WHAT HAPPENED ON JUNE 12TH LESS LIKELY RATHER THAN MORE LIKELY. WITH RESPECT TO ITEM 27 -- AND THERE'S A RELATED ITEM, NUMBER 41. THESE ARE BOTH STATEMENTS ALLEGEDLY MADE BY MR. SIMPSON TO MRS. SIMPSON'S MOTHER, JUDITHA BROWN, REGARDING THE RELATIONSHIP BETWEEN HE AND HER DAUGHTER. AND I ASK THE COURT IN BOTH OF THESE INSTANCES TO LOOK AT THE PRECISE LANGUAGE PROFFERED BY THE PEOPLE OF WHAT WAS SAID. IN ITEM NUMBER 27, WHAT WAS SAID WAS, "PEOPLE SAY I SHOULD STAY AWAY FROM HER, BUT I CAN'T. I LOVE HER. I LOVE HER. PEOPLE TELL ME TO LET HER GO, AND I CAN'T LET HER GO." NOW, WHEN WE ASK, WELL, WHAT'S THE RELEVANCE OF THAT OTHER THAN SHOWING THAT IN THE COURSE OF A DIVORCE, MR. SIMPSON STILL LOVED HIS WIFE, THE RELEVANCE THE PEOPLE ASSERT IS TO CITE THIS CASE OF DE MOSS, PEOPLE VERSUS DE MOSS, IN WHICH THE STATEMENT ALLEGED WAS, "IF I CAN'T HAVE HER, NOBODY CAN." THAT'S A THREAT. SAYING, "I LOVE HER. I CAN'T LET HER GO," IS NOT A THREAT, AND WE WOULD CONTEND THAT THESE STATEMENTS HAVE NO RELEVANCE IF THEY CANNOT BE CHARACTERIZED AS THREATS. ITEM NUMBER 41 -- EXCUSE ME.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. UELMEN: THE STATEMENT INVOLVED IN ITEM NUMBER 27 WAS IN 1992 DURING THE PENDENCY OF THE DIVORCE. IT WASN'T EVEN CLOSE IN PROXIMITY TO THE EVENTS OF JUNE 12TH, 1994. SO IT WOULDN'T EVEN SHOW A STATE OF MIND THAT WOULD BE IN EXISTENCE TWO YEARS LATER. SO TO THAT EXTENT, IT IS IRRELEVANT, AND ITS PREJUDICIAL IMPACT OUTWEIGHS ITS PROBATIVE VALUE. AND THE SAME THING IS TRUE OF ITEM 41, EVEN THOUGH THIS IS CLOSER IN PROXIMITY. THIS IS MARCH OF 1994. THE STATEMENT IS, "THE ONLY WOMAN I WANT IN MY LIFE AND I CAN'T HAVE IS YOUR DAUGHTER." THAT'S NOT A THREAT AND IT BEARS NO RESEMBLANCE TO THE DE MOSS STATEMENT CITED AS AUTHORITY, "IF I CAN'T HAVE HER, NOBODY ELSE WILL." SO WE OBJECT SIMPLY ON GROUNDS OF IRRELEVANCE AND ON GROUNDS OF 352 AS WELL.

THE COURT: MADAM REPORTER, DO WE NEED TO CHANGE REPORTERS?

THE COURT REPORTER: NO. I'M FINE.

THE COURT: MR. UELMEN.

MR. UELMEN: ITEM 28 IS NOT -- AN ATTEMPT -- SIMPLY THAT THERE WAS AN ATTEMPT AT RECONCILIATION, AND I DON'T THINK THERE'S GOING TO BE DISPUTE ABOUT THAT. NUMBER 29, THE CALIFORNIA SUSHI, WE OBJECT FIRST OF ALL ON GROUNDS OF WHAT ACTUALLY HAPPENED REQUIRING A 403 HEARING, SECTION 1101, A LACK OF SIMILARITY, AND SECTION 352, THE PREJUDICIAL IMPACT OUTWEIGHING THE PROBATIVE VALUE. ITEM 30, THE SAME OBJECTIONS. ITEM 31, ITEM 32, AGAIN, LABELING THESE AS STALKING WILL REQUIRE A PRELIMINARY DETERMINATION BY THE COURT THAT THIS IS IN FACT WHAT WAS GOING ON, THAT MR. SIMPSON DID NOT HAVE A LEGITIMATE REASON TO BE VISITING THE PREMISES. ONLY AFTER THAT HAS BEEN DETERMINED WOULD THESE THEN BE ADMISSIBLE. BUT WE WOULD MAINTAIN THEY SHOULD BE EXCLUDED UNDER 1101 BECAUSE THEY BEAR NO SIMILARITY TO WHAT HAPPENED ON JUNE 12, 1994, AND ON THE GROUNDS OF 352. ITEMS 33 AND 34, AGAIN, WE RESTATE OUR HEARSAY OBJECTION. THE ONLY EXCEPTION ASSERTED IS 1250 OF THE EVIDENCE CODE. AND AGAIN, WE RESPOND, THE STATE OF MIND OR THE CONDUCT OF THE DECLARANT OF THESE HEARSAY STATEMENTS OF NICOLE BROWN SIMPSON WILL NOT BE AN ISSUE IN THESE PROCEEDINGS. THAT BRINGS US TO THE 911 INCIDENT IN OCTOBER OF 1993. AND HERE WE HAVE ANOTHER 911 TAPE. AND I'VE ALREADY ADDRESSED THE PROBLEM THAT THE COURT WILL HAVE IN RULING ON OUR HEARSAY OBJECTION. AND AT SOME POINT, IT MAY BE THAT THE COURT WILL WANT TO PROPOSE SOME SORT OF REDACTION OF THE TRANSCRIPT OF THIS TAPE AND SUGGEST THAT PARTS OF IT MAY BE PRESENTED TO THE JURY IN A WRITTEN FORM WITHOUT ACTUALLY PLAYING THE TAPE. BUT EVEN GETTING PAST THE HEARSAY PROBLEM WITH THE 911 TAPE DOES NOT DISPOSE OF THE 1101 PROBLEM, OF WHETHER THIS INCIDENT BEARS ANY SIMILARLY WHATSOEVER TO WHAT HAPPENED ON JUNE 12. THE FACT THAT THE PARTIES HAVE AN ARGUMENT ABOUT WHOSE PICTURES ARE IN THE FAMILY ALBUM AND THAT ARGUMENT RESULTS IN A BROKEN DOOR SIMPLY DOESN'T PROVIDE ANY EVIDENCE OF PROBATIVE VALUE TO EXPLAIN THE INTENT OR THE MOTIVE OR THE IDENTITY OF THE PERPETRATOR OF THE JUNE 12TH INCIDENT. AND AGAIN, I UNDERLINE THAT IDENTITY IS THE REAL ISSUE IN CONTENTION HERE. THERE ARE NO SIGNATURE FACTS HERE THAT WOULD JUSTIFY USING THIS TO PROVE THE IDENTITY OF THE PERPETRATOR OF THE MURDER ON JUNE 12TH. ITEM 38, THE FACT THAT MISS SIMPSON MOVED TO THE BUNDY ADDRESS, THERE WILL BE NO ARGUMENT ABOUT THAT. ITEM 40, WE ASSERT A HEARSAY EXCEPTION, AGAIN, 1250, THE ONLY EXCEPTION RELIED UPON. THIS IS SIMPLY A STATEMENT BY THE VICTIM WHICH CANNOT BE CROSS-EXAMINED, AND HER STATE OF MIND AND CONDUCT AT THE TIME THIS STATEMENT WAS MADE IS TOTALLY IRRELEVANT TO ANY ISSUES IN THIS CASE. ITEM 41 I HAVE ALSO ADDRESSED. ITEM 42, WE'LL RAISE A SUBSTANTIAL 403 QUESTION IN TERMS OF WHETHER THESE STATEMENTS WERE ACTUALLY MADE. AND IF THEY WERE MADE, THEIR RELEVANCY REMAINS IN QUESTION, AND WE WILL OBJECT TO THEM AS IRRELEVANT. ITEM 47, SIMPLY THE FACT THAT THERE WAS AN ATTEMPT AT RECONCILIATION WILL NOT BE CONTESTED IN THIS CASE. ITEM 48, AGAIN, WE OBJECT ON THE GROUNDS OF HEARSAY. WE BELIEVE THE ONLY EVIDENCE THAT CAN BE PRESENTED OF THIS TRANSACTION IS A STATEMENT OF NICOLE BROWN SIMPSON, WHICH CANNOT BE CROSS-EXAMINED AND THERE'S NO HEARSAY OBJECTION EVEN ASSERTED HERE. THE IRS LETTER, AGAIN, WE SIMPLY OBJECT TO THAT AS IRRELEVANT. IT DOES NOT EXPLAIN ANY CONDUCT IN THIS CASE. AND WE INVITE THE COURT TO LOOK AT THAT LETTER AND SEE THAT IT DOES NOT CONTAIN ANY THREATS OR ANY ATTEMPT TO COERCE MRS. SIMPSON. ITEMS 52 AND 53, AGAIN, SIMPLE HEARSAY OBJECTIONS, AGAIN 1250 BEING THE ONLY EXCEPTION RELIED UPON AND, AGAIN, THE STATE OF MIND AND THE CONDUCT OF THE VICTIM WILL NOT BE IN QUESTION. THE DANCE RECITAL, THERE WON'T BE ANY ISSUE ABOUT THAT. AS TO THE MURDER ITSELF, THE ONLY ISSUE AS I MENTIONED WILL BE THE ISSUE OF IDENTITY OF WHO DID IT. THE ASHTON STREET INCIDENT THAT WAS ADDED, WE HAVE A 403 OBJECTION AS TO WHAT, IF ANYTHING, THIS PROVES IF THE WITNESSES ARE NOT ABLE TO IDENTIFY THIS AS AN ACTUAL ALTERCATION BETWEEN MR. SIMPSON AND HIS WIFE SINCE THEY ARE SIMPLY RELYING ON WHAT THEY HEARD THROUGH A BEDROOM WALL. WE HAVE A 403 PROBLEM EVEN BEFORE WE GET TO THE 1101 EXCEPTION, AND WE WILL OBJECT ON THE GROUNDS THAT THERE IS NO SIMILARITY UNDER 1101. AND THE 352 OBJECTION HERE I THINK IS PARTICULARLY STRONG BECAUSE OF THE REMOTENESS OF THIS INCIDENT. WE ARE TALKING HERE ABOUT AN INCIDENT THAT IS 17 YEARS OLD. THE VICTORIA BEACH INCIDENT, AGAIN, THE 403 ISSUE OF WHETHER THIS WITNESS CAN ACTUALLY IDENTIFY THE PARTICIPANTS IN THIS TRANSACTION NINE YEARS AFTER IT HAPPENED WILL BE IN ISSUE. AND ASSUMING WE GET OVER THAT, WE WILL RAISE AN 1101 OBJECTION AND A 352 OBJECTION. AND THEN FINALLY, WITH RESPECT TO THE SOJOURN CONTACT, WE HAVE A HEARSAY OBJECTION AND CONTEND THAT THE ONLY EXCEPTION RELIED UPON 1250 GETS US NOWHERE BECAUSE THE STATE OF MIND AND THE CONDUCT OF THE VICTIM ARE NOT GOING TO BE IN ISSUE. I WOULD JUST LIKE TO CONFER WITH COUNSEL.

THE COURT: CERTAINLY.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. UELMEN: I WOULD JUST LIKE TO CONCLUDE WITH WHERE I BEGAN; AND THAT IS THE INSISTENCE OF MR. SIMPSON'S RIGHT TO BE TRIED FOR WHAT HE DID RATHER THAN FOR WHO HE IS. THAT'S GOING TO BE PARTICULARLY SIGNIFICANT IN THE CONTEXT OF A CASE WHERE WHO DID IT IS REALLY THE ONLY ISSUE TO BE LITIGATED. THIS IS NOT A CLASSIC CASE OF THE BATTERED WIFE SYNDROME. THIS IS A CLASSIC CASE OF WHO DONE IT, AND WE WILL CONTEND THAT THIS MURDER WAS DONE BY PARTIES OTHER THAN MR. SIMPSON, AND THAT IS THE ONLY ISSUE WE'RE GOING TO LITIGATE, AND ALL OF THE QUESTIONS OF PREJUDICE TO MR. SIMPSON MUST BE EVALUATED WITH THAT THOUGHT IN MIND.

THE COURT: ALL RIGHT. THANK YOU, COUNSEL. ALL RIGHT. GIVEN THE NUMBER OF ISSUES THAT HAVE BEEN PRESENTED TO THE COURT, SEVERAL DISTINCT ISSUES, ARGUMENT, OBJECTIONS, ET CETERA, ET CETERA, I DON'T FEEL PREPARED TO RULE ON THE MOTION AT THIS TIME. AND I'VE INDICATED THAT I WILL LIKELY -- MY INCLINATION TOMORROW IS TO TAKE UP THE MOTION TO QUASH THE SUBPOENA FOR MARGUERITE SIMPSON AND TO TAKE UP THE ARGUMENT ON THE FUHRMAN MOTION. AND MY INCLINATION AND INTENT IS TO ISSUE A WRITTEN RULING AS TO EACH OF THESE 60 ODD INCIDENTS TUESDAY MORNING, JANUARY 17TH, OR AT THE LATEST, THE 18TH.

MR. GORDON: YOUR HONOR, GIVEN SOME OF THE COMMENTS THAT MR. UELMEN MADE, MAY WE RESERVE ABOUT 10 MINUTES TOMORROW MORNING TO RESPOND?

THE COURT: WELL, IT'S A MOTION --

MR. COCHRAN: WE'RE THE MOVING PARTY.

MR. GORDON: I UNDERSTAND. WE'RE THE PROPONENTS OF THE EVIDENCE. WE WOULD LIKE TO TAKE A FEW MINUTES -- THIS IS VERY, VERY IMPORTANT EVIDENCE. WE WOULD JUST LIKE TO TAKE A FEW MINUTES OF THE COURT'S TIME IN THE MORNING TO RESPOND.

MR. COCHRAN: MAY I JUST BE HEARD? WE HAD THIS DISCUSSION EARLIER. WE ARE THE MOVING PARTY AND WE FILED THE MOTION. WE DIDN'T INTERRUPT THEM AT ALL. WE LET THEM FINISH ALL THEIR PRESENTATION, AND NOW WE HAVE CONCLUDED. AND IF THEY DO THAT, THEN I'M SURE THERE WILL BE SOME THINGS WE WANT TO SAY. I THINK THE COURT HAS HEARD ENOUGH OVER THE COURSE -- AND YOU'VE BEEN VERY PATIENT -- OVER THE LAST COUPLE OF DAYS.

MR. GORDON: WE'RE THE PROPONENTS OF THIS EVIDENCE. THIS IS EXTREMELY IMPORTANT. AS THE COURT INDICATED, THIS IS A VERY COMPLEX ISSUE TO YOU, AND THERE'S SOME INFORMATION WE WOULD LIKE TO GIVE THE COURT, RESPOND TO. IT'S VERY IMPORTANT. WE WOULD JUST LIKE TO --

THE COURT: CAN YOU GIVE ME SOME INFORMATION, WHAT KIND OF INFORMATION ARE WE TALKING ABOUT?

MR. GORDON: WE HAVE SOME SHORT RESPONSE TO THIS.

MS. BODIN: YOUR HONOR, WE'RE THE PROPONENTS OF THE EVIDENCE. WE ALSO BEAR THE BURDEN ON THIS. AND I THINK THAT ENTITLES US TO SOME REBUTTAL TO WHAT THE DEFENDANT HAS PRESENTED. WE DON'T WANT TO PRESENT NEW EVIDENCE, BUT WE WOULD LIKE TO COMMENT BRIEFLY UPON SOME OF THE ARGUMENTS THAT MR. UELMEN HAS MADE. AND BECAUSE WE DO BEAR THE BURDEN, I BELIEVE WE ALSO, WITH THAT BURDEN, HAVE A RIGHT TO DO THAT. AND I WOULD ASK THE COURT TO GIVE US A MOMENT, BUT I CERTAINLY WOULD DEFER TO WHATEVER THE COURT WANTS TO DO. BUT SPECIFICALLY --

THE COURT: ANYTHING THAT'S NOT COVERED IN THE POINTS AND AUTHORITIES THAT YOU'VE SUBMITTED? ANYTHING THAT'S NOT INCLUDED IN THE CASE LAW?

MS. BODIN: THERE ARE A COUPLE OF FACTUAL REPRESENTATIONS THAT WERE MADE BY MR. UELMEN THAT ARE FRANKLY NOT TRUE, PARTICULARLY WITH REGARD TO A DEPOSITION. AND I WOULD LIKE TO CITE THE COURT TO THAT. I COULD BRIEFLY DO THAT. IT IS 10 MINUTES BEFORE 5:00. WOULD THE COURT LIKE ME TO DO IT RIGHT NOW?

THE COURT: WELL, HERE'S PART OF THE PROBLEM. THIS TYPE OF MOTION IS NORMALLY DONE ON OFFERS OF PROOF. AND EACH SIDE HAS CONTROL OVER THE RECORD THAT THEY CREATE. AND THAT DEPOSITION IS NOT BEFORE ME. NOBODY HAS CHOSEN TO OFFER IT TO ME. NOW, I AGREED THAT I WAS WILLING TO ACCEPT FROM THE PROSECUTION A NOTEBOOK CATALOGING THE REPORTS, ET CETERA, ET CETERA, SO THAT I HAVE A FACTUAL BACKGROUND SO I CAN MAKE MY RULINGS AS TO EACH ONE OF THESE INCIDENTS. I ASSUME THAT WILL INCLUDE THE DEPOSITION. SO DO WE NEED TO ARGUE ANYTHING MORE ABOUT THIS?

MS. BODIN: THE COURT MAKES AN EXCELLENT POINT. THE FINAL POINT I WISH TO MAKE IS THIS.

THE COURT: THIS HAS TO DO WITH YOUR ABILITY TO REOPEN YOUR ARGUMENT.

MS. BODIN: ALL RIGHT, YOUR HONOR. GIVEN THAT, IN OUR ABILITY TO GIVE THE COURT EVIDENCE IN A NOTEBOOK THAT THE COURT HAS REQUESTED, I WILL DEFER TO THE COURT'S JUDGMENT. WITH REGARD TO NOT GIVING REBUTTAL, IT WOULD HAVE BEEN SHORT IN ANY CASE. AND FRANKLY, THE FACTS IN THIS CASE, AT LEAST FROM THIS MOTION, SPEAK FOR THEMSELVES. I DO HAVE ONE OTHER ISSUE I WOULD LIKE TO BRING UP RELEVANT TO SOME COMMENTS MR. UELMEN MADE GOING TO DISCOVERY. MAY I BRIEFLY MAKE THOSE COMMENTS?

THE COURT: WITH REGARD TO DISCOVERY ISSUES.

MS. BODIN: THE OFFER OF PROOF MADE BY MR. UELMEN TALKED ABOUT A NUMBER OF WITNESSES WITH REGARDS TO CERTAIN EVENTS. AND DURING THE COURSE OF HIS ARGUMENT -- FOR EXAMPLE, HE INDICATES THAT THEY HAVE WITNESSES WITH REGARD TO NICOLE BROWN SIMPSON -- AND IF I JUST MAY GO TO THE PODIUM -- AND HER EMPLOYMENT AND MADE AN OFFER OF PROOF WITH RESPECT TO THAT, AND HE SAID THAT THE DEFENSE HAD WITNESSES ON THAT. WE HAVE LOOKED THROUGH OUR DISCOVERY THIS AFTERNOON AND DISCOVERED THAT THERE IS NOTHING IN OUR DISCOVERY WITH REGARD TO THAT. AN OFFER OF PROOF HAS BEEN MADE. WE CERTAINLY ARE BACKING UP OUR OFFER OF PROOF TO THE COURT WITH A NOTEBOOK PROVIDED TO THE COURT OF WHAT WE THINK ARE VERY RELEVANT DOCUMENTS. WE ASSUME THAT THE DEFENSE WOULD THEN DO THE SAME THING BASED ON MR. UELMEN'S ARGUMENT. THERE WAS ALSO SOME TALK ABOUT A PAYMENT FOR MEALS. I ASSUME THERE MUST BE SOME FINANCIAL EVIDENCE THAT THEY ARE IN POSSESSION OF. THERE WERE SEVERAL OTHER ISSUES THAT THE DEFENSE HAS REFERENCED WHERE THEY HAVE INDICATED THAT THEY'RE GOING TO PRESENT EVIDENCE; IN PARTICULARLY, WITH REGARD TO -- I BELIEVE TO THE ISSUE OF THE EVENT AT THE RED ONION. AND WE WOULD LIKE TO HAVE ALL THE INFORMATION THAT BACKS UP THE OFFERS OF PROOF THAT HAVE BEEN MENTIONED BY MR. UELMEN WITH REGARD TO THOSE EVENTS, AND WE SIMPLY ASK FOR THAT BECAUSE HE HAS MADE OFFERS TO THE COURT.

THE COURT: DOES IT REQUIRE THAT THEY TURN OVER REBUTTAL EVIDENCE TO YOU AT THIS POINT?

MS. BODIN: WE MADE AN OFFER OF PROOF IN A HEARING THAT THEY ASKED FOR --

THE COURT: WELL, TO TELL YOU THE TRUTH, MS. BODIN, MY THOUGHT PROCESS IS NOW ON THE MOTION ITSELF AND NOT ON THE DETAILS OF DISCOVERY. SO I'LL CONTEMPLATE DISCOVERY ISSUES TOMORROW MORNING WITH A HOPEFULLY RESTED MIND AND CLEAR THOUGHT PROCESS. WE'LL GO INTO THE MOTIONS REGARDING MOTION TO QUASH AND THE FUHRMAN MOTIONS. I ANTICIPATE WE SHOULD BE ABLE TO CONCLUDE THOSE MOTIONS BY TOMORROW. LET ME JUST GIVE YOU A HEADS UP SO YOU CAN PREPARE FOR OPENING STATEMENTS. ASSUMING THAT I ISSUE THE RULING AND EVERYTHING IS CLEAR ON WHAT THE RULINGS ARE AND THEY CAN PREPARE THEIR OPENING STATEMENTS ACCORDINGLY, WE WILL NEED APPROXIMATELY HALF A COURT DAY TO CHAT WITH THE JURORS AGAIN, AS I INDICATED WE WOULD. I NEED APPROXIMATELY HALF A DAY TO SWAP COMPUTERS AND DO A FEW OTHER THINGS LOGISTICALLY TO GET READY FOR THE PRESENTATION. SO THAT COULD GET US TO THE 19TH OR THE 20TH FOR OPENING STATEMENTS.

MR. COCHRAN: WE WILL BE READY, YOUR HONOR. WE ARE READY.

MR. GORDON: THANK YOU, YOUR HONOR.

MS. LEWIS: YOUR HONOR, BEFORE THE COURT ADJOURNS, MAY WE HAVE A SIDEBAR CONFERENCE WITH COUNSEL OFF THE RECORD?

THE COURT: SURE.

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

THE COURT: ALL RIGHT, COUNSEL. WE'LL STAND IN RECESS UNTIL 9:00 A.M. TOMORROW MORNING. THANK YOU.

(AT 5:00 P.M., AN ADJOURNMENT WAS TAKEN UNTIL, FRIDAY, JANUARY 13, 1995, 9:00 A.M.)

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

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

THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
PLAINTIFF, )

)
) VS. ) NO. BA097211
)
ORENTHAL JAMES SIMPSON, )
)
)
DEFENDANT. )

REPORTER'S TRANSCRIPT OF PROCEEDINGS

THURSDAY, JANUARY 12, 1995
VOLUME 69

PAGES 10699 THROUGH 10934, INCLUSIVE

APPEARANCES: (SEE PAGE 2)

JANET M. MOXHAM, CSR #4588
CHRISTINE M. OLSON, CSR #2378 OFFICIAL REPORTERS

APPEARANCES:

FOR THE PEOPLE: GIL GARCETTI, DISTRICT ATTORNEY
BY: MARCIA R. CLARK, WILLIAM W.
HODGMAN, CHRISTOPHER A. DARDEN,
CHERI A. LEWIS, ROCKNE P. HARMON,
GEORGE W. CLARKE, SCOTT M. GORDON
LYDIA C. BODIN AND HANK M.
GOLDBERG, DEPUTIES
18-000 CRIMINAL COURTS BUILDING
210 WEST TEMPLE STREET
LOS ANGELES, CALIFORNIA 90012

FOR THE DEFENDANT: ROBERT L. SHAPIRO, ESQUIRE
SARA L. CAPLAN, ESQUIRE
2121 AVENUE OF THE STARS
19TH FLOOR
LOS ANGELES, CALIFORNIA 90067

JOHNNIE L. COCHRAN, JR., ESQUIRE
BY: CARL E. DOUGLAS, ESQUIRE
SHAWN SNIDER CHAPMAN, ESQUIRE
4929 WILSHIRE BOULEVARD
SUITE 1010
LOS ANGELES, CALIFORNIA 90010

GERALD F. UELMEN, ESQUIRE
ROBERT KARDASHIAN, ESQUIRE
ALAN DERSHOWITZ, ESQUIRE
F. LEE BAILEY, ESQUIRE
BARRY SCHECK, ESQUIRE
ROBERT D. BLASIER, ESQUIRE

I N D E X

INDEX FOR VOLUME 69 PAGES 10699 - 10934

-----------------------------------------------------

DAY DATE SESSION PAGE VOL.

THURSDAY JANUARY 12, 1995 A.M. 10699 69 P.M. 10807 69
-----------------------------------------------------

PROCEEDINGS

MOTION IN LIMINE - 1101(B) (RESUMED) 10699 69

LEGEND:

MS. CLARK - MC
MR. HODGMAN - H
MR. KAHN - K
MR. GOLDBERG - GB
MR. GORDON - G
MR. SHAPIRO - S
MR. COCHRAN - C
MR. BAILEY - B
MR. UELMEN - U
MR. SCHECK - BS
MR. NEUFELD - N

-----------------------------------------------------

CHRONOLOGICAL INDEX OF WITNESSES

PEOPLE'S (1101B)
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.

DUTTON, DONALD 10813G 10826B 10861G 10870B 69 (FURTHER) 10876G
-----------------------------------------------------

ALPHABETICAL INDEX OF WITNESSES

PEOPLE'S (1101B)
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.

DUTTON, DONALD 10813G 10826B 10861G 10870B 69 (FURTHER) 10876G

EXHIBITS

PEOPLE'S FOR IN
EXHIBIT IDENTIFICATION EVIDENCE

PAGE VOL. PAGE VOL.

8 - CHART 69

(CONFLICTS TACTICS SCALE) (NOT MARKED ON THE RECORD)

9 - THREE (3) CHARTS 10819 69
(TOLMAN SCALE)

10 - THREE (3) CHARTS 69
(INTRUSIVENESS SCALE) (NOT MARKED ON THE RECORD)