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. Back on the record in the Simpson matter. The record should reflect the Defendant is present with his counsel, Mr. Douglas, Mr. Uelmen and Mr. Blasier, People represented by Mr. Kelberg, Mr. Hodgman and Miss Clark. The jury is not present. Counsel, I understand that the Defense has examined its posture regarding recalling Gary Sims, and a determination has been made to not call Mr. Sims. Is that correct, Mr. Douglas?

MR. DOUGLAS: That's correct.

THE COURT: For all intents and purposes, at this point, both sides will call no further witnesses, both sides will formally rest before the jury the next time they are present, correct?

MR. KELBERG: Yes.

THE COURT: I see nods from both sides.

MR. DOUGLAS: Yes, your Honor.

THE COURT: My inclination then is to proceed with the two remaining matters, which are jury instructions and exhibit admissions and otherwise and schedule the jury instruction for tomorrow at 10:00 o'clock, and we will proceed then by having both sides formally rest before the jury. Does that sound appropriate? Both sides seem to indicate yes. Mr. Kelberg?

MR. KELBERG: Yes, your Honor.

THE COURT: Mr. Douglas? Rather than bring the jury back today just for the purpose of resting.

MR. DOUGLAS: I would rather do it tomorrow than today, your Honor. Yes.

THE COURT: Is that agreeable to the People?

MR. KELBERG: It certainly is, your Honor.

THE COURT: Then, Deputy Trower, would you notify the other bailiffs that the jury will not be summoned today; however, we will need them for tomorrow morning at 10:00 o'clock.

DEPUTY TROWER: Yes, your Honor.

THE COURT: All right. Then the record should then reflect we, starting at 8:00 o'clock this morning, had an informal conference in chambers with counsel regarding jury instructions to see what instructions we could agree upon, which instructions we could not agree upon and determine which instructions we needed to discuss. All right. The court will be working from the proposed jury instructions that were submitted by the People on June 23rd at the conclusion of their case in chief, and we'll go through the objections to this first package by the Defense. All right. Starting with the objection to 2.03, Mr. Uelmen.

MR. UELMEN: Yes, your Honor. Our objection to 2.03, which addresses evidence admitted as consciousness of guilt or falsehood, simply, there is no evidence that would justify the giving of this instruction. The only examples offered by the People to justify this instruction would be, first of all, the statement allegedly made to Dr. Baden with respect to the explanation of the cut on the Defendant's finger.

My recollection is that at the time that was offered, it was offered simply to explain and explore the opinion of Dr. Baden. It was not offered as a statement showing consciousness of guilt. If it were offered for that purpose, the Defendant would have insisted that all of his statements explaining the cuts on his finger be admitted, including the statement he made to the detectives at the time of his arrest. Since it was offered only for the limited purpose of explaining the opinion of Dr. Baden, the jury did not hear the full explanation offered by the Defendant in all of the settings in which an explanation was offered, and we believe we would be entitled to offer that if that were the purpose for which this statement was coming in. The only other suggestion of any evidence that would justify this instruction is the evidence of the statements made by the Defendant to the limousine driver as to the explanation for why he was running late. And once again, to construe this as a false exculpatory statement in a setting in which the Defendant was not being called upon to explain himself in the sense of being confronted with any sort of accusation of crime, we believe that that statement likewise would not justify this instruction.

So we object simply on the grounds that there's no evidence to justify this instruction.

THE COURT: Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. As the court is well aware, the Kimball case, 44 Cal. 3D, has stated quite clearly that a statement of a Defendant offered against him by the opposing party which would serve to connect the Defendant to the commission of the offense qualifies as an admission in California. And although there may be differences of view by theoreticians of the rules of evidence as to whether that is sound on the theory of, is it being offered for the truth of the matter asserted, the bottom line is that with respect to the cuts, the Prosecution's contention is, those were false statements made by Mr. Simpson to give an explanation for cuts and possibly abrasions that were sustained as a result of his efforts in killing, in murdering these two human beings and that his falsification of statements to justify these cuts and these abrasions serves to connect him through consciousness of guilt to the commission of these two murders. Likewise, the fact that the Defendant apparently told Mr. Park that he was asleep even though the evidence clearly shows that shortly after 10:00 P.m., using his cell phone, he made a call to Paula Barbieri, is evidence of a falsification to justify where he was at the time the murders were committed and to demonstrate, again, consciousness of guilt by trying to form an alibi, if you will, for that period of time. Under the law, these qualify as admissions. When Dr. Baden was asked, this was not 801(B) information which was limited to the basis of an expert opinion. It was evidence which was offered as Mr. Simpson's statement. It qualified as an admission. As the Prosecution, we are the opposing party. The Defendant being the adverse party, we are offering his statement through Dr. Baden against Mr. Simpson. It qualifies as an admission. 2.03 is properly given.

THE COURT: All right. Any response? Matter submitted?

MR. UELMEN: Submitted.

THE COURT: All right. The objection will be overruled. All right. 2.06, this is a modified instruction specifically dealing with the glove demonstration. Mr. Uelmen.

MR. UELMEN: Your Honor, 2.06 refers to the Defendant attempting to suppress evidence or concealing evidence or destroying evidence. The whole--and as I understand it, the Prosecution's theory in offering this instruction is to suggest that the demonstration of the fit of the glove was somehow an attempt by the Defendant to suppress or mislead or conceal evidence in this case. The Defendant did not offer this evidence. This evidence was offered by the People, and the theory on which they were entitled to do that is that this was not testimonial. The whole idea of a Defendant being required to stand before a jury and try on clothing is that it is not testimonial. It is simply observational so the jury can draw a conclusion whether it fits or not based on their observation. If it were testimonial or if it were being offered for a testimonial purpose, we would have a serious constitutional violation of requiring the Defendant to incriminate himself in front of the jury. And the offering of this instruction is a suggestion by the People that they want to offer this demonstration now for a testimonial purpose and to infer from it that the Defendant's conduct in participating in that demonstration can be used to incriminate him of the crime of which he is accused. So we would object to this instruction. We would assert the Defendant's fifth amendment constitutional privilege as the basis of our objection and suggest to the court that giving this instruction and allowing that argument is to create great constitutional peril in terms of using a non-testimonial demonstration for a testimonial purpose.

THE COURT: People.

MR. KELBERG: Yes, your Honor. Just for the record, and the court was made aware, I only got involved in this because the court freed me up yesterday by ruling that the two witnesses, Martz and Whitehurst, were not going to be heard. So I kind of come into the jury instructions a bit late. The People on reflection believe that the instruction that has been offered in the packet that was sent in some time ago should not be the one given. We propose that the standard Caljic instruction of 2.06 more appropriately accommodates the evidence in the case. For example, Mr. Hodgman points out to me there is evidence that has been received that the Defendant, when arriving at the Los Angeles airport from his residence in the late evening I gather of June 12th, was seen to deposit a bag in a trash receptacle at the airport. That certainly would qualify, given the totality of the evidence, as efforts to suppress evidence because it is reasonable for the jury to infer that the Defendant was getting rid of incriminating evidence.

The glove episode, the jury saw it. It is evidence in this case. The jury can determine whether Mr. Simpson, in fact, intentionally made an effort to make it appear that gloves which would fit did not in fact fit; and, therefore, your Honor, there is clear evidence that qualifies as efforts to suppress evidence by the Defendant from which a consciousness of guilt may be drawn. But because there are multiple areas that reflect this effort to suppress evidence, I don't believe the instruction that has been proposed initially which focuses on the glove is appropriate. I think it should be a generic instruction, the standard Caljic with the appropriate striking out of the inapplicable alternative phrases as found in that instruction.

THE COURT: All right. Dean Uelmen, do you have any comment on the--just giving the generic 2.06?

MR. UELMEN: Yes. We oppose 2.06, and People versus Hannon holds that this should not be given if there is not evidence which, if believed, would support the suggested inference, and there's simply no evidence in here of any suppression or attempt to conceal or destroy evidence by the Defendant.

The argument that the testimony of a witness that Mr. Simpson set a piece of luggage down on the top of a trash container is certainly not evidence of an effort to suppress or destroy or conceal evidence. There was no testimony as to what ultimately happened in terms of whether that was then picked up and carried off. There was no evidence that anything was destroyed or concealed at that time. It is the rankest speculation to argue that that supports any sort of inference of the concealment or destruction of evidence. And with respect to the glove demonstration, again, we would urge that there is serious constitutional peril--

THE COURT: Let's not get into that because that's been withdrawn. Okay. All right. Objection to 2.06 will be sustained. All right. 2.21.2, this is witness willfully false. And, Mr. Uelmen, you've offered your own special instruction, Defendant's special instructions 19 and 20.

MR. UELMEN: Well, 19--yes, was offered in substitution for 2.21.2, because we believe the probability of proof standard used in 2.21.2 would confuse the jury in terms of the Prosecution's burden of proving its case beyond a reasonable doubt. So we rely on People versus Rivers to qualify this instruction and would urge the court to give Defendant's 19 rather than 2.21.2.

THE COURT: Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. Of course, this instruction 2.21.2 has been approved throughout recent case law, most recently, People versus Beardsley at 53 Cal. 3D 68, pages 94 to 95. The Rivers case dealt with a situation of--it's basically a one-on-one case without any corroboration, and so there were concerns raised in the Rivers case. But whatever the facts of Rivers, Rivers is a Court of Appeal case. It cannot overrule under our rules of stare decisis, a decision under the California Superior Court approving 2.21.2. More fundamentally, looking at D-19, the court will notice that this has been truncated by leaving off several things. On the first sentence, the last words that would appear in 2.21 is "To be distrusted." The words in others have been left off. And then, of course, the last part, which is really the big issue, the part dealing with that "You may reject the whole testimony of a witness willfully who has testified false as to a material point unless from all the evidence, you believe the probability of truth favored his or her testimony in other particulars." In other words, it is misleading to this jury to give the proposed D-19 because it suggests that if a jury finds a witness has willfully lied, basically you throw away everything else that witness has said. That is not what the law is. And as a result of Beardsley, as a result of the long recognition of this instruction and the result of the inaccuracy and misleading character of D-19, we submit the pattern standard Caljic instruction should be given.

THE COURT: All right. Any comment on D-20?

MR. KELBERG: Yes. Unfortunately, your Honor, my card index I don't think--my card index has not come.

(Brief pause.)

MR. KELBERG: Yes. I think this is--thank you. The issue of materiality as to the credibility of a witness is a question of fact for the jury. The proposition that is posited in D-20, that it is the responsibility of the court to make a finding as a matter of law that something is material, no. 1, is drawn from the perjury charge and the question of whether the materiality element of a perjury charge is a question of law or a question of fact. In the Caljic use note for the most recent modification of 7.20, the Hedgecock case is cited at 51 Cal. 3D 395, and it stands for the proposition that where the issue of materiality is in dispute, it is a factual issue for the jury. I believe Dean Uelmen believes that that is not what Hedgecock stands for and relies on Hedgecock, citing earlier United States Supreme Court cases. But there is a recent case this term from the United States Supreme Court called U.S. vs. Gaudin, G-A-U-D-I-N, which can be found at 115 Supreme Court 2310, which found that due process in the sixth amendment right to jury trial required a trial judge to submit to the jury the question of materiality of Defendant's allegedly false statement in matters within the jurisdiction of a particular federal agency. And this was the case we were, for the record, in chambers and I mentioned that I was aware of a case. Unfortunately, I didn't bring my materials, but someone has sent down a copy of the case. I have it if the court wishes to review it for its consideration of this issue.

The--setting aside the difference between an element of an offense and this question of materiality and due process, requiring a jury to make a finding--in fact, I would be shocked quite frankly if Mr. Simpson were charged with perjury and the court was going to make a decision as a matter of law that the statement in issue was material and the court was going to tell the jury that it was material if they found the statement was made. I would be shocked if Dean Uelmen didn't stand up and tell this court it was unconstitutional under due process and the sixth amendment for this court to do so, would be a question of fact for the jury. It is a question of fact for the jury if any statement about which a witness may have lied is material because then the jury must decide if it is material, they are to distrust the witness in other particulars unless, again, from the probability of truth, they find that the witness's testimony in other areas should be accepted. So it is a question for the jury and that's where it should be left. D-20 should not be given.

THE COURT: Any response, Dean Uelmen?

MR. UELMEN: Your Honor, if I could return very briefly to D-19, we believe the modifications proposed there are appropriate. First of all, 2.21.2 is ambiguous when it suggests that a witness who was willfully false in one material part of his or her testimony is to be distrusted in others because the suggestion is that the others may be other material parts, and we believe that if a witness is false in one material part of his testimony, in any other part of the testimony, he can be distrusted, and that is what is conveyed by saying simply the witness is to be distrusted period without adding the ambiguous phrase "In others." We believe that the modification suggested by People versus Rivers is appropriate here because we are dealing with the testimony of a sole percipient witness. The only witness to the discovery of the glove is Detective Fuhrman. And we believe to instruct the jury with respect to his testimony in terms of the qualifying phrase of using a probability of truth standard creates the very problem that Rivers was addressing, that of creating ambiguity as to the Prosecution's burden of proving its case beyond a reasonable doubt. So we believe those modifications are appropriate. Now, with respect to the instruction that we requested in our special instruction no. 20, materiality is a legal question. The holding of the Hedgecock case was simply that in a prosecution for a witness making a knowingly false material statement in a government application, the question, as the court held, of whether the Defendant knew the statement was material is a jury question. But the California Supreme Court did not in any way undermine the support for the proposition that even in a perjury prosecution, the question of whether the statement was material is a legal question and it is not inappropriate. And I don't believe the U.S. Supreme Court case in the context of federal prosecution undermines this proposition at all. It is a legal question and the court must instruct the jury as a matter of law what is material and what is not. And, of course, it's a very different question where the Defendant on trial is asserting his right to a jury trial. That question doesn't come up at all in the context of the testimony of a witness. So in the context of giving the jury an instruction that they can disregard the testimony of a witness who has given willfully false testimony with respect to a material part of his testimony, the jury should not be left simply to determine on its own whether the testimony related to a material part of the testimony. The court has already determined that question as a matter of law and should so instruct the jury that it has found with respect to that testimony it was material.

THE COURT: All right. Thank you, counsel.

MR. KELBERG: Your Honor, I have one other thing for the record. D-20 singles out an individual witness out of all of the witnesses that this court has heard, and that in and of itself is inappropriate basis for a jury instruction.

THE COURT: All right. Thank you, counsel. All right. I think 2.21.2 is the appropriate instruction to give in this situation. The objections to 19--D-19 and D-20 will be sustained. All right. 250, 250.1, 250.2, evidence of other crimes. And also, we are cross-referencing this to D-22.

MR. UELMEN: I believe we have also requested a special instruction, D-24, which cautions the jury as to the dangers of evidence of other crimes, and we believe that it is appropriate. This language is taken directly from the California Supreme Court decision in People versus Mason. It's a direct quotation of the court's cautionary language with respect to evidence of other crimes, and we believe it is appropriate that the jury be cautioned as to the risks and dangers of this crime as well as to the purposes for which it may be considered. We have also submitted a special instruction 22, a cautionary instruction that this evidence should not be considered unless the commission of the other crimes is proven beyond a reasonable doubt, and we believe that the cases cited support the giving of that evidentiary standard as part of this instruction and that--suggesting that any lesser standard will justify the use of this evidence will undercut the Defendant's right to a case against him being proven beyond a reasonable doubt.

THE COURT: Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. First of all, your Honor, as the court will see, I did submit, filed this morning some supplemental instructions and proposed special instructions. One of the supplementals is 2.50 modified. The first sentences of that: "Evidence has been introduced for the purpose of showing that the Defendant committed crimes other than that for which he is on trial. Such evidence, if believed, was not received--pardon me--may not be considered by you to prove that the Defendant is a person of bad character or that he has a disposition to commit crimes. Such evidence was received and may be considered by you only for the limited purpose of determining if it tends to show," and then at the end of the instruction, it concludes with: "You are not permitted to consider such evidence for any other purpose." That takes care of the issues that are covered in 22, 23 and 24. In addition, 22, which is the burden of proof issue, cites cases which are, of course, capital cases dealing with the admissibility of evidence at the penalty phase under 190.3(B), evidence of other crimes, which, for reasons that are only applicable to the punishment issue in a capital case, must be found by a jury beyond a reasonable doubt before the jury may consider such evidence as aggravating evidence justifying imposition of a penalty of death. This evidence that is being received is being received under 1101(B) of the evidence code. It comes in under the foundational requirement of evidence code section 405. The preliminary fact needed to be established is by a preponderance of the evidence. That is the law. That is what 250.1 says and what is defined in 250.2. I submit, your Honor, that 22, 23 and 24 are inapplicable and should be rejected.

THE COURT: All right. Thank you, counsel. All right. The court will give 250 as modified, 250.1, 250.2 and I will decline to give D-22, 23 and 24. All right. 2.52, flight after commission of crime. That has been withdrawn by the Prosecution?

MR. KELBERG: That is correct, your Honor.

THE COURT: All right. I take it there's no objection to withdraw?

MR. UELMEN: No objection.

THE COURT: All right. 2.71, 2.71.5, 2.72 and 2.71.7.

(Brief pause.)

MR. KELBERG: Your Honor, I'm sorry. Could I just interject one thing? In the series of instructions we have in the big packet, just to make a note of, on 2.13, which is the issue of the admissibility of prior inconsistent statements for the truth of the matter asserted, that that needs to be modified to take into account the Peratis video which came up under 1201, such evidence not being admitted for the truth of the matter asserted.

THE COURT: All right. Remind me to do that when we conclude this cycle. All right. Dean Uelmen.

MR. UELMEN: Our objection to all of these instructions I believe, 271.5 and 2.71.7 have been withdrawn.

MR. KELBERG: 2.71.5 is withdrawn and I need to talk--

THE COURT: I'm sorry. 271?

MR. KELBERG: .5, the adoptive admission--

THE COURT: All right.

MR. KELBERG: --instruction is withdrawn and I need a moment to talk further with Mr. Hodgman on 271.7. We're trying to review the record on that.

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Your Honor, we're going to withdraw it. 2.71.7 is withdraw.

THE COURT: Withdrawn.

MR. UELMEN: With respect to 271 and 272, I believe your Honor's previous rulings, that you will give 2.03 with respect to false exculpatory statement should be dispositive. There are no statements that by any stretch of the imagination can be called an admission in this record. Section 2.03 certainly gives the Prosecution the option of arguing that statements were false exculpatory statements and the jury can infer some consciousness of guilt from those statements, but that does not make those statements admissions. And there is no evidence in this record of any admission, and to instruct the jury that there is in the absence of any sufficient evidence to justify a finding of any sort of admission by the Defendant would be error, and we would cite People versus Hannon for that proposition. There must be legally sufficient evidence in the record to support the finding of an admission before this instruction can be given, and giving the instruction would itself suggest to the jury that they are free to consider such evidence as an admission.

THE COURT: Or that there has been an admission in the first place. Mr. Kelberg.

MR. KELBERG: So whether there's been an admission, your Honor, for the same reasons under Kimball, statements of the Defendant to Dr. Baden and the statements to Mr. Park regarding being asleep constitute an admission because the People used those statements to connect the Defendant to the commission of the offense through other evidence.

THE COURT: But don't you have what you appropriately need to argue under 2.03?

MR. KELBERG: We certainly have what is an appropriate instruction, your Honor, but 2.03 does not create the understanding of the nexus; that is, what is an admission, what is it about a statement of a Defendant that can be used by the Prosecution to argue that the Defendant is guilty of the offense. It is, in fact, a fact in the eyes of the law a statement by a Defendant which, with other evidence, tends to connect him to the commission of the offense qualifies as the kind of statement that can be admitted for the jury's consideration. That's what 2.71--2.71 is all about. So there's nothing--they are not instructions that are in lieu of each other. They are parallel instructions to deal with sometimes different situations, but sometimes very similar situations.

THE COURT: Well, let's go back to what we classically understand to be an admission, an oral admission by a Defendant. Can you point to anything in the record here that even comes close to that?

MR. KELBERG: Well, your Honor, as the court is well aware--

THE COURT: I understand your position. But I assume Mr. Hodgman or Miss Clark or Mr. Yochelson or anybody else would whisper in your ear--

MR. KELBERG: That's not the thing I'm concerned about. I think it's an interesting issue from a theoretical standpoint because hearsay is classically defined as--

THE COURT: Which is why I have the two most theoretical thinkers here discussing this.

MR. KELBERG: Are you referring to Mr. Yochelson? I don't think--the court is not referring to me. I don't think I'm that theoretical. But it's a situation where 2.03 certainly is there for us to argue the significance of it. Legally, 2.71 is an accurate statement of law.

THE COURT: It's an accurate statement of law, but is there anything at all that it applies to?

MR. KELBERG: Yes, legally under Kimball, what I indicated. What the court is really suggesting is that it is not the classic kind of situation that is clearly a statement which is, on its face, inculpatory, which is the classic, being offered for the truth of the matter asserted. So, for example, if the Defendant lives out of state and is charged with a crime that was committed in Los Angeles county and the Defendant made a statement to the police that, "I was in Los Angeles county during the evening hours of June 12th, 1994," that would be an admission because it would tend to connect him in some tangential way to the commission of the offense. If he went on to say, "And when I was in Los Angeles on June 12th, 1994, I was down in Long Beach at some event when the crime in question took place in Brentwood," that would qualify as an admission. That's why it's not a confession because it is not an acknowledgment of each element of the offense, but it qualifies as an admission because we can take the part that applies to him being in Los Angeles county at the relevant time and connect him to the offense even though he also wants to claim through an exculpatory portion that it is not him who is the perpetrator. Mr. Hodgman does point out--he didn't need to whisper. He wrote a note to remind me to raise the issue of Shipp's dream comment. I think the court indicated to us in chambers you believe an instruction is going to be appropriate as to how the jury should evaluate that testimony, and that would itself seem, if the jury finds it to be the nature which the court feels would be something that they can consider, that would qualify as an admission as well under 2.71. So from a theoretical standpoint, your Honor, I think Kimball is not a well-decided case and 2.03 takes care of it. But under stare decisis, Kimball controls. 2.71 applies. It is not redundant to 2.03 with the dream issue. It is clearly not redundant, 2.03, and on that basis, your Honor, I ask the court to give 2.71 and 2.72.

THE COURT: All right. Counsel, I'm going to take this one under submission. Let me--Mr. Kelberg, would you approach just for a moment and let me give you a draft--you can share one with Dean Uelmen--regarding a special instruction regarding Mr. Shipp. Contemplate that, and we'll come back to it. All right. Let's move on to 3.31 and 3.31.5, mental state. I take it you want me to give 290?

MR. KELBERG: Your Honor, I find 290 to be one of the most favorable instructions to the Prosecution.

THE COURT: All right. This is a `94 revision. All right. 3.31.5, mental state.

MR. KELBERG: Your Honor--

THE COURT: And you were going--and the People were going to submit a modified instruction?

MR. KELBERG: Correct, your Honor, in accordance with our conversation in chambers. We should have it early this afternoon available.

THE COURT: And that is over objection of the Defense because I'm going to direct the Prosecution to submit the 3.31.5 including the mental states or specific intents that are necessary for murder in the first degree and murder in the second degree. So the Defense objection is noted; is that correct?

MR. UELMEN: Yes, your Honor. We do object.

THE COURT: All right. 4.71 is withdrawn by the People and our next objection goes to 8.7.0.

MR. KELBERG: Your Honor, could I briefly add one other thing for the court's consideration on the admission issue Mr. Hodgman points out to me, just a piece of evidence, not a legal argument?

THE COURT: All right.

MR. KELBERG: All of the 1101 evidence that has been received, which includes statements of the Defendant which I believe are made in tape recordings as well as interviews with the police officer or police officers who testified, would qualify as admissions since the 1101(B) evidence is admissible for the purposes of proving the Defendant's guilt of the charged offenses.

THE COURT: All right. Thank you.

MR. UELMEN: Your Honor, I would like to comment on that because I think that highlights the risk of prejudice of giving 2.71 and 2.72. Statements of admission of prior similar crimes that are offered for the limited purpose of showing the intent or motive or common scheme or plan are not admissions of the crime for which the Defendant is on trial. The 271 and 272 specifically address the admission of the offense that the Defendant is being tried for and 272 cautions the jury with respect to a finding of guilt based upon that evidence.

To suggest to this jury that there are any admissions on this record is very dangerous and highly prejudicial to the Defendant. The only evidence the Prosecution is pointing to are statements that they are going to argue are false and because they are false, you can infer a consciousness of guilt, if they are true, they are exculpatory statements, they are not admissions; and they're trying to set up a double bind and say to the jury regardless of whether you find these statements true or false, you can use them against the Defendant, use them as an admission if they're true, use them as a false exculpatory statement if they're false. You can't have it both ways. They are not admissions. They are exculpatory statements.

THE COURT: All right. We'll contemplate this one. All right. 8.30. And, counsel, I'd like to hear the argument concerning whether the court should instruct on lesser included offenses, which would be second degree murder in this case.

MR. UELMEN: We are strongly opposed to this instruction, your Honor, because we believe there is simply no evidence on this record to support a conviction of second degree murder. The only thing we have that can be offered by the People is speculation, speculation which finds no factual basis. And, of course, the bedrock principle for the giving of a lesser included offense instruction is that there is evidence to support a verdict of a lesser degree. The danger of this instruction is, in the face of a complete denial of participation in the crime and a consistent position asserted by the Defense throughout these proceedings that he was not there, that he did not commit the crime, that position is substantially weakened by offering the jury an instruction that suggests that based on this evidence, they could find the Defendant was there, but had a state of mind that required a reduction in the level of seriousness of the crime. We rely on the hardy case in which the California Supreme Court recognized that the court is not required to give the lesser included instruction over the objection of the Defendant, and the Defendant in this setting is willing to make a personal waiver on the record to indicate that he is personally opposed to the giving of this instruction and that he waives any objection to the failure of the court to instruct on a lesser offense. The problem with this instruction is that without any evidentiary support, it invites the jury to compromise. It invites them, if they are having doubts and difficulties in concluding that there was a first degree murder here, that they can compromise and return a verdict of second degree. Now, the willingness of the Prosecution to accept that kind of compromise cannot bind the Defendant. The Defendant continues to assert his position that he is not guilty. If these crimes were committed by another person, they are premeditated murders, and the Defendant will not willingly accept a compromise verdict that finds him guilty of second degree murder in the absence of any evidence in this record that this is a second degree murder.

THE COURT: Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. I must confess, if the court will recall, I think the first time or second time maybe I had the privilege of coming down on this case to argue motions with the court, this came up in the context of the photograph admissibility question of the Coroner's photographs, and I think the court even asked me, "Well, am I obligated to give a voluntary manslaughter instruction," and I just gave some casual response. But I think the bottom line was no because there was no evidence that a reasonable person's passions and so forth would be raised. I did mention at that time the Wickersham case, 32 Cal. 3D--and I don't have the page number off the top of my head and I didn't bring the materials. I did read the hardy case after Mr. Uelmen, Dean Uelmen raised it when I was down here that time. And if the court reads the hardy case, it does not stand for the proposition that the court does not have a sua sponte duty to give a second degree lesser included murder instruction when, in fact, the evidence is sufficient to warrant second and not as a matter of law sufficient to only warrant first. Wickersham says that there is such a duty, and the reason there's such a duty is very important. It doesn't matter what the Defendant wants or doesn't want. What the courts are concerned about is, jurors are presented evidence. They have to decide if it's a first degree murder. By Dean Uelmen's statement that he just made, what if they have doubt and uncertainties about it being first degree murder? If you give them only first degree murder or not guilty as the alternatives, those jurors--those jurors are faced with the following options: I believe this man is guilty of murder of a heinous offense, but under the law that his Honor has given us, I cannot find beyond a reasonable doubt that it was a premeditated, deliberate murder. What alternative do I have? Do I find him guilty of a murder in the first degree that I do not believe has been proved because I believe he committed some crime even if not that one, but that's my only alternative that would find him guilty, or do I find him not guilty, let a murderer go free because I followed my obligation under the law and applied that burden of proof to the premeditation, deliberation element and found I couldn't find it beyond a reasonable doubt? Jurors are not to be put into that position. Jurors are here to render justice based upon the evidence. The Defendant is not entitled to an acquittal where the evidence proves he committed a crime, but not the full extent charged, nor is the Defendant someone who should be penalized by being convicted of an offense higher than what the evidence shows because the jurors have been given only that option where they believe he is guilty of a serious crime even if not that one.

THE COURT: All right. Well, then let's examine what's in the record though. What facts do you argue from that there is a possibility or there's something that would support a second but not a first or a first but not a second?

MR. KELBERG: Your Honor, let me point out, first of all, I'm not going to be down here arguing. That's the one thing I tried to make clear to everybody in our group of lawyers. I don't want to take away from what Miss Clark may argue to this jury and I don't have the full opportunity of knowing all of the evidence. But let me start with just some obvious aspects. No. 1, the court always looks to evidence of planning, motive and method of killing as evidence that suggests premeditation and deliberation.

THE COURT: The Anderson criteria.

MR. KELBERG: Exactly, your Honor. If one looks at Mr. Goldman's situation as to the manner of the killing, as to motive, as to planning for him, one could see that a juror who is a reasonable juror may not be convinced even if we believe the evidence proves beyond a reasonable doubt, even if perhaps other jurors would find beyond a reasonable doubt that such evidence demonstrates premeditation and deliberation, but Mr. Goldman at the wrong place at the wrong time was the victim of a murder where there was not that careful weighing and consideration of the pros and cons of killing. The evidence, for example, that I assume is inferential to argue premeditation and deliberation, bringing the knife to the scene, bringing a ski cap to the scene, wearing gloves to the scene and so forth, a jury may find--and I'm not suggesting that they should find. I'm merely indicating what they may find--that that is not sufficient beyond a reasonable doubt to convince them that the Defendant carefully weighed the pros and cons of his actions, but rather, once there, without that kind of careful weighing and in a moment of sheer anger and rage, killed these two people, murder in the second degree. That's the issue for this jury to decide. This court is well aware of all the evidence because this court has had to be here for every day of this trial. And I submit to the court that it is clear these are not, as a matter of law, remotely close to being murders in the first degree that the court can say as a matter of law. These are questions of fact for the jury. They have to look at evidence of planning. They have to look at evidence of motive. They have to look at the means of the executions of these two human beings. They have to look at what effect does rage and anger play in a person's ability to carefully weigh the pros and cons of that person's actions. This jury should not be placed with that Hopson's choice of either convicting this man of first degree where they don't believe that has been proved beyond a reasonable doubt, but they know he's a murderer, or set this man free because the law says he's either a first degree murderer or you've got to set him free. They should not be placed in that position. This court's obligation is to see that these jurors can render the true and just verdicts in this case, and without that second degree murder, under these circumstances, they are not given that option, that benefit. They are forced into positions that the law does not require them to be forced into. May I have just a moment with Mr. Hodgman?

THE COURT: Certainly.

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Thank you, your Honor.

THE COURT: All right. Mr. Uelmen, any brief response?

MR. UELMEN: Yes, your Honor. The Wickersham case says that the court should instruct on the lesser offense of second degree murder when the evidence raises a question as to whether all of the elements of the charged offense were present. When we look at the evidence in this case as to how these murders were committed, there is not one shred of evidence that the People can point to suggesting that Ron Goldman was simply in the wrong place at the wrong time. There is no evidence that suggests which of these victims or whether both of them were the target of the perpetrator of these murders. It's just as plausible on the evidence that the People have presented to suggest that Nicole Brown Simpson was in the wrong place at the wrong time when somebody came to murder Ron Goldman. There is no evidence in this record of any argument, there is no evidence of any struggle other than the struggle that immediately preceded the infliction of the fatal wounds. The evidence that the People are going to rely on to suggest that this was a premeditated murder are the use of gloves and the bringing of a weapon to the crime scene. And those elements apply to both murders, and the position of the Defendant is that, yes, these are premeditated murders that the Defendant did not commit. And to speculate--to speculate just on the basis not of the evidence, but of a tactical position that the Prosecution chooses to assume we contend prejudices the Defendant because the Defendant's denial is undercut by the giving of that instruction. That instruction suggests to the jury an inconsistency in the Defendant's position that he was not there, but perhaps if he was there, he didn't have the requisite state of mind. The Defendant does not want the court to even suggest to the jury that if he was there, they can speculate on the state of mind he might have had if he indeed was the perpetrator of this crime. So by giving that instruction, you are contradicting and undercutting the Defense presented by the Defendant in this case. And we believe that under hardy, the court is clearly entitled--as the court said, the court need not deliver the instruction where a Defendant expresses a deliberate tactical purpose for objecting to the instruction. We are expressing that purpose. We are objecting in the strongest possible terms because we believe the giving of this instruction will undercut the Defense.

THE COURT: All right. Thank you, counsel. Looking at the Anderson criteria, the court notes that the Prosecution will likely argue that going to a crime scene at this time of year in southern California wearing gloves, taking what appears to be, from the medical evidence, a very strong, very sharp cutting instrument, having a watch cap, which one could surmise is part of a means of concealment or clothing of concealment, the colors of the threads that are found indicating dark color clothing, that this could be a classic waiting, lying in wait premeditated murder. Also, looking at the physical evidence at the scene, the escape route going out the back, the bloody trail ending at a place where it would be logical to assume someone would park an automobile would be argued by Miss Clark probably an approach from the alley rather than from the street side. So there is a plausible, from the record, first degree argument that can be made from this evidence. Looking, however, at Ronald Goldman, I don't think there's any reasonable interpretation of the evidence that would not indicate that Mr. Goldman's presence at the Bundy crime scene was by sheer chance given his--the testimony that we had that he had plans to meet another friend to go dancing that night or go nightclubbing and that he was dropping Juditha Brown's glasses off at Nicole Brown Simpson's residence surely as a goodwill gesture by the restaurant staff and his presence at the Bundy crime scene was certainly not planned. So there is a possibility, a plausible argument that can be made that he was not the original intended victim in this killing and that his presence was, as Mr. Kelberg stated, wrong place, wrong time. And that while there may be physical evidence of an intent to kill from the nature of the wounds that are inflicted, there is insufficient showing or there may be an insufficient showing of the requisite premeditation. So I will instruct on both first and second as a lesser included. All right. 8.83.2, special circumstance I believe.

MR. KELBERG: Your Honor, just for the record, we were going to submit in addition 8.31. 8.30 was in the original packet. That is second degree murder with expressed malice. 8.31 defines second degree murder as implied malice. That would be supplemented with our materials this afternoon.

THE COURT: All right. That's noted. All right. 8.83.2. There was a conflict between 8.83.2 and 17.42.

MR. KELBERG: We are withdrawing 8.83.2, your Honor.

THE COURT: All right. All right. Then that concludes our discussion of the Defense objections to the instructions offered by the Prosecution.

MR. KELBERG: Your Honor, could I also put on the record two things? No. 1, I don't know if the court wanted to go over that 2.13 instruction. You said when we finished this segment--I forget the court's wording. I don't know if you want to do that now. The other thing, I'm somewhat troubled by 1710 which was offered in the original packet.

THE COURT: Your 1710?

MR. KELBERG: Our 1710. The original packet did not offer the stone, 8.75 instruction.

THE COURT: Yes.

MR. KELBERG: And again--I don't know--different people have different positions, the courts have different positions and so forth. But just, 1710 is not exactly the best wording for a situation of where it's a single charge and the question is degree and then the question of the forms that go to the jury. So I'd just like to, on the record, to keep open what might be the most appropriate instruction to the jury with respect to the number of possible verdicts and so forth and that maybe we can discuss that a little further this afternoon. The court is not as troubled as I am.

THE COURT: No. Any time you say the stone instruction, I mean any trial judge shudders at the mention of the stone instruction. All right. Well, we did not discuss that in chambers. So we will take that up. But let's finish what we have organized before us at this point. All right. Defendant's proposed jury instructions. The Defense is proposing in addition 2.11.5, unjoined coconspirators. And, Mr. Uelmen, I'm referring to page 3 of your request.

MR. UELMEN: Yes, your Honor. Our position is that there is evidence in the case indicating that a person other than the Defendant may have been involved in the crime, and this instruction simply informs the jury that they should not consider why that other person is not being prosecuted in this trial. We believe there is evidence from which the jury can infer that other persons were involved, notably through the testimony of Dr. Henry Lee with respect to other footprints at the crime scene. So it is appropriate for the jury to be instructed with respect to the consideration of evidence of other persons involved.

THE COURT: All right. Can you point to anything else in the record other than Dr. Lee's testimony concerning additional footprints?

MR. UELMEN: Yes. Evidence with respect to the infliction of the wounds, whether there were two knives used in the infliction of the wounds. I believe the--there is evidence with respect to Mr. Heidstra that could be construed to be support of the presence of two perpetrators as well because Mr. Heidstra testified to hearing two voices, and we don't know with precision whether he was describing events preceding the murder or events immediately following the murder, that he heard two voices arguing and he heard the clanging of the gates. We believe that supports the presence of two persons. We also have unidentified fingerprints found at the scene that have not been associated either with the Defendant or any other identifiable person.

THE COURT: Mr. Kelberg.

MR. KELBERG: Your Honor, I think the intent of this instruction is pretty clearly understood. It is a situation where you have identified individuals, but for the jury, there is perhaps only one Defendant. So in a case with three obvious individuals involved, the liquor store robbery, three people go in at gunpoint, money is taken, but this jury is asked to decide the guilt of a single individual. The jury is not to speculate why we only have one person here for a crime which is clearly established to be one involving multiple people. This jury instruction would seem in my judgment to convey to the jury in much stronger terms than what even the best evidence the Defense has just indicated would support the possibility of a second person being involved and it is not an appropriate instruction. It is a situation that is well-covered by 2.90 because our responsibility is to prove that Mr. Simpson is a murderer of these two human beings beyond a reasonable doubt. If the Defense wants to argue that because they believe the evidence shows there is a second killer, that that raises a reasonable doubt as to whether Mr. Simpson is involved at all because, if there are two, Mr. Simpson's not one of the two, Mr. Simpson's not involved, two killers suggesting someone other than Mr. Simpson. 2.11--2.11.5 is unnecessary. Its purpose is not needed in this situation. The Defense is really raising an issue as to reasonable doubt of identity of Mr. Simpson based upon a contention that there were multiple killers. May I have just a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Yes. If you look at 2.11.5, the `89 revision, the second paragraph: "There may be many reasons why such person is not here on trial. Therefore, do not discuss or give any consideration as to why the other person is not being prosecuted in this trial or whether he or she has been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the Defendant on trial or defendants on trial." I think it's clear from that paragraph, your Honor. And by the way, that is not a bracketed paragraph. That is not one that is applied only if applicable. I think that clearly indicates the purpose behind this instruction, and this case does not fit within that criteria.

THE COURT: How do you address the evidence, however, that Dean Uelmen has raised, that Dr. Lee's testimony that there may have been second, other footprints there, the fact that we do have unidentified fingerprints that cannot be made to anybody that we know of and the testimony by both pathologists that two knives cannot be ruled out?

MR. KELBERG: It seems to me that the Defense wouldn't want an instruction like this. It seems to me the Defense wants to have the jury constantly thinking about two killers, but two killers in the sense of by reason of their being two killers, it tells you Mr. Simpson is not one of the two killers. He is not a killer by nature of the fact that these people were killed by multiple people. That's really what they're really trying to focus on, not, "Hey, you can't consider what these other people are facing in this case because you're solely to decide Mr. Simpson." They want the jury to focus on that there are these other people because that raises in their judgment a reasonable doubt as to his guilt. This instruction really undercuts what it is they want to argue from their being evidence of a second killer.

THE COURT: All right. Are you familiar with the Farmer case and the use note?

MR. KELBERG: 47 Cal. 3D?

THE COURT: Yes.

MR. KELBERG: I know it in some aspects, but as to this particular instruction, I am not. I know it has spontaneous utterance issues and other things.

MR. UELMEN: Your Honor, we have no objection to giving the revision in the Caljic supplement 2.11.5. In fact, we find that is actually a better instruction for our purposes. And our purposes are clearly identified by Mr. Kelberg. That is, we certainly are going to suggest to the jury that there were two killers. But that's all the more reason for the jury not to speculate about the reasons why this other person is not here on trial. The point of this instruction is that you should not, for example, conclude that perhaps there wasn't another such person because that person isn't here on trial, that ordinarily both of the people who committed a murder would both be on trial and the fact that this other person isn't on trial leads to some sort of inference that this other person doesn't exist. That's precisely the prejudice and the inference that we want to avoid and that we're entitled to avoid by the giving of this instruction, to say to the jury, don't even worry or think about why that other person isn't here on trial. But that doesn't say, don't consider or think about the possibility that there was another person involved in a commission of this crime.

THE COURT: All right. Thank you, counsel. Let me read the Farmer case because it's cited in the use note.

MR. KELBERG: And, your Honor, may I have an opportunity to read it as well and offer if I have any comment on that as well?

THE COURT: Yes. 260, 260.1.

MR. KELBERG: No objection.

THE COURT: No objection. 3.31, I think we've agreed that--how that's going to be modified. All right. 4.50, alibi.

MR. UELMEN: Yes. Your Honor invited us to consider how 450, the Caljic instruction on alibi, might be modified, and I would invite the court's attention to special instructions D-31 and D-32, which I think address much more specifically the Defendant's theory of the case and clear up the issue that we previously identified with respect to the ambiguity of 450 in the context of this case. These special instructions make it clear that the Defendant does not have any obligation to offer evidence that he was not present at the time and place of the commission of the crime and that if the evidence raises a reasonable doubt whether he was present, then he's entitled to an acquittal and the burden remains on the Prosecution to prove that he was present. And special instruction D-32 instructs the jury how to consider the evidence that may raise a reasonable doubt whether the Defendant was present, making it clear that he doesn't have to show he was somewhere else at a specific time that the crime was committed. We believe that the Defendant is definitely entitled to an instruction with respect to the alibi defense, which is really the theory of the Defendant's defense, and the Defendant is entitled to an instruction that conveys to the jury how it should consider the evidence presented by the Defense in this respect. We believe that all of the evidence does raise a reasonable doubt whether the Defendant was present at the time and place that the crime was committed and the jury needs to be instructed that the Defendant does not bear the burden of proof with respect to this evidence, that all they need is a reasonable doubt and that considering all of the evidence, such a reasonable doubt would require an acquittal.

THE COURT: All right.

MR. KELBERG: Your Honor, with respect to 4.50 and based upon I think the court's recommendation or the court's concerns as expressed during our informal conference, if the court wishes to modify the first phrasing of that instruction and instead of what it presently says in the patterned instruction, say that "Evidence has either been received or been introduced for the purpose of," we will have no objection to that. As it is phrased, we think it is misleading. Even if not technically erroneous or in error under the law, it is very misleading to a lay jury. With respect to D-31 and D-32, I'd invite the court's attention to People's special instruction no. 2 which says the Prosecution has the burden of proving beyond a reasonable doubt each element of the crimes charged in the information and that the Defendant was a perpetrator of any such charged crime. Between 4.50 and our special instruction no. 2, the Defendant is getting every benefit of what he is entitled to receive. That is, the jury has a clear understanding that there are two issues the Prosecution must prove beyond a reasonable doubt and the elements of the offense is just--are just one of the issues that we have to prove. We must prove identity as well. Counsel's proposed instructions are--D-32 is clearly argumentative and focusing on specific facts. These are so-called sears, s-e-a-r-s, type instructions. But actually if the court looks at People versus Garceau, G-A-R-C-E-A-U, 6 Cal. 4140, starting at page 191, the court will note actually from page 192 how in People versus Wright, W-R-I-G-H-T, the Supreme Court rejected a special instruction that similarly pinpointed specific evidence rather than a particular theory of the Defendant's case. Such an instruction properly is argumentative because it would invite the jury to draw inferences favorable to the Defendant from specified items of evidence on a disputed question of fact and, therefore, properly belongs not in instructions, but in arguments of counsel to the jury. Defendant--the special instruction of the Defendant in Garceau could be read to embrace stated principles of law involving reasonable doubt; and if so, it was repetitious of other instructions given, notably, 2.90, which this court has recognized as the best available definition of the standard of proof beyond a reasonable doubt. It goes on in Garceau in dealing with another special instruction offered to find that the trial court properly excluded this special instruction which selected certain evidence and implied the weight to be deprived therefrom, thus creating the same type of argumentative instruction disapproved in Wright, the instruction was also repetitious of the standard cautionary instructions given to the jury. In this case, it was 2.70 and 2.71.7 and therefore properly refused.

The Supreme Court in Freeman, F-R-E-E-M-A-N--and I have a citation around here somewhere, if I can dig through my pile. Let's see--8 Cal. 4450, page 504--and the court is well-aware I think of the Freeman case and the moral certainty language, but it makes note on 504 that although modifying the standard instruction is perilous, they do in this limited instance suggest a modification. They then go on to say making these changes and no others would avoid--both avoid the perils that have caused appellant courts to caution trial courts against modifying the standard instruction and satisfy the concerns the high court has expressed regarding that instruction. And as the court is well-aware, the legislature and urgency legislation just passed on--I'm trying to get the date. Our memo came down August 31, `95. It became effective July 3rd, 1995--the new 1096 language which is in conformity with what was the modified Caljic 2.90 following the Victor versus Nebraska, Sandoval versus California decision from the U.S. Supreme Court. But what's important to also note is 1096(A), which says:

"In charging a jury, the court may read to the jury section 1096, and no further instruction on the subject of the presumption of innocence or defining reasonable doubt need be given." So taking into consideration all the case law that I've discussed, the legislative changes and intent behind 1096(A) and the fact that counsel's statements are either argumentative or covered by what we agree should be given, 4.50 as modified, and the special instruction no. 2 about our burden of proof on identity, 31 and 32 should be refused. Thank you, your Honor.

THE COURT: All right.

MR. UELMEN: Your Honor, the Prosecution is asserting a position that has been specifically rejected again and again by the courts of California, that with respect to the Defendant's theory of the case, all you have to do is give a reasonable doubt instruction. The law clearly is--and we cite People versus Williams as support for our special instruction no. 32. Upon request, the court is required to give any correct instruction on the Defendant's theory of the case which the evidence justifies no matter how weak or unconvincing that evidence may be. Special instruction no. D-32 is an instruction that specifically tells the jury what to do with the Defendant's theory of the case. The Defendant's theory of the case is that he did not have sufficient time or opportunity to commit this crime, and the jury needs to know that the Defendant does not bear the burden of proof on that issue. He doesn't have to prove to them that he didn't have sufficient time or opportunity to commit the crime. But if they simply have a reasonable doubt whether he had sufficient time and opportunity to commit this crime, then he is entitled to an acquittal. And quite clearly, that's all that instruction no. 32 says. We believe we are entitled to this instruction because this is the Defendant's theory of the case and the evidence justifies this instruction.

THE COURT: All right. Thank you, counsel. All right. I agree that the Defendant is entitled to the alibi instruction. I will give 4.50 as requested; however, modified to address the concerns that we discussed in chambers given the first section, first phrase of that instruction. The instruction that the court will give will read as follows:

"Evidence has been received for the purpose of showing that the Defendant was not present at the time and place of the commission of the alleged crime for which he is on trial. If, after consideration of all the evidence, you have a reasonable doubt that the Defendant was present at the time the crime was committed, you must find him not guilty." The court will give that instruction as modified. All right. I believe that that concludes our discussion of the additional Caljic instructions.

MR. KELBERG: Your Honor, I'm sorry. Did the court rule on 31 and 32 then?

THE COURT: Yes. I'm not going to give 31 and 32. All right. And we need to now address the special instructions that the Defendant has offered, D-1 through 32. And, counsel, we're going to take a 10-minute break at this point.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All parties are again present. The jury is not present. Counsel, just for your planning purposes, we will be dark on Monday the 25th at the request of the parties in the Goldman family. However, my staff will be here Monday to assist with any organization of exhibits or anything that you need for preparation of your argument, so that we will be available to accommodate you on that. All right. Let's go to Defense special instruction no. D-1 starting at page 5.

MR. KELBERG: Your Honor, I don't know if this is the appropriate time. I had a chance to read the Farmer case, and I don't know if you want my--okay. We'll save it.

THE COURT: Save it.

MR. KELBERG: Okay.

THE COURT: All right. Let's start with D-1. And actually, we have D-1 through--

MR. KELBERG: D-5.

THE COURT: --D-5 are of a similar vein.

MR. KELBERG: And also People's special no. 1, your Honor.

THE COURT: Mr. Kelberg.

MR. KELBERG: Thank you, your Honor. I mentioned in our informal discussions, first of all, the Everett case, Everett versus Everett, 150 Cal. App. 3D, 1053, 1072 and 73 and footnote 18, which discusses this issue of the 403(c) jury instruction. And I think it's interesting in that case to note in the footnoted material in discussing this issue of the judge making a preliminary foundation finding on a relevancy issue and so forth, that the court finds--not the court--the assembly committee to--the judiciary committee finds that:

"Frequently, the jury's duty to disregard conditionally admissible evidence when it is not persuaded of the existence of the preliminary fact on which relevancy is conditioned is so clear that an instruction to this effect is unnecessary. For example, if the disputed preliminary fact is the authenticity of a deed, it hardly seems necessary to instruct the jury to disregard the deed if it should find that the deed is not genuine. No rational jury could find the deed to be spurious and yet to be still effective to transfer title from the purported grantor." They go on in this commentary from the assembly committee to point out:

"At times, however, it is not quite so clear that the conditionally admissible evidence should be disregarded unless the preliminary fact is found to exist. In such cases, the jury should be appropriately instructed. For example, the theory upon which agents and coconspirator's statements are admissible is that the party is vicariously responsible for the acts and statements of agents and coconspirators within the scope of the agency or conspiracy. Yet, it is not always clear that statements made by a purported agent or coconspirator should be disregarded if not made in furtherance of the agency or conspiracy. "Hence, the jury should be instructed to disregard such statements unless it is persuaded that the statements were made within the scope of the agency or conspiracy." And then they go on to note that:

"Subdivision (c) therefore permits the judge in any case to instruct the jury to disregard conditionally admissible evidence unless it is persuaded of the existence of the preliminary fact.

"Further, subdivision (c) requires the judge to give such an instruction whenever he is requested by a party to do so." There is no doubt based on 403(c) that this court has an obligation because the Defense is requesting through D-1 through D-5 to have the jury instructed on these foundational aspects of relevancy for this physical evidence. But I think it's important, no. 1, just to understand that first comment about sometimes it's so obvious that unless, of course, the instruction must be given because there's a request, there's no reason to give it, the whole thrust of this Defense case is disregard the physical evidence because its sources are so spurious as to show clearly that any result that you would take from that evidence and infer that O.J. Simpson is the killer is unreliable. If it is not clear to this jury by now that there is a contention from the Defense that this evidence that we contend is a mountain of evidence to prove the Defendant's guilt is merely irrelevant evidence because it lacks chain of custody, it's contaminated, it's confused, it's planted, who knows what, but it is not evidence which was deposited by the killer or in some fashion created in the course of the killings from which it is rational for the jury to infer that such evidence proves identity--that's what this all comes down to. I don't think this is a real tough thing for the jury to figure out as--if you believe the Defense that there's problems with all this stuff, it's not very good evidence, and if you believe the Prosecution that this stuff is a mountain of evidence, Mr. Simpson is going to be in some trouble. The judge has to instruct under 403(c). That's what our proposed instruction does. And what it tells the jury in neutral terms, legal terms, not isolating on specific evidence, not being argumentative, not being inaccurate and misleading as the evidence--as the references to the evidence in D-1 through D-5 are, is that, "Where there is physical evidence admitted, including the expert opinion concerning analysis of such evidence, that evidence may have a tendency in reason--" notice the word "May"--"May have a tendency in reason to prove elements of the crimes charged or the identity of a perpetrator of such crimes or both." This instruction then tells the jury:

"You are the sole judges of whether such evidence does in fact have a tendency in reason to prove any issue in this case." They are the sole judges of whether this evidence is relevant. The instruction then tells them what they need to know in order to decide if this evidence is relevant by saying:

"If, after your review and consideration of all of the circumstances surrounding any specific item of physical evidence or expert opinion, you find that such evidence does not have a tendency in reason to prove any element of the crimes charged or the identity of a perpetrator of the crimes charged, you are instructed to disregard such evidence as such a finding renders this evidence irrelevant." If this jury finds that the chain of custody is so botched that one can't say that what was tested was the same item that was recovered, if this jury believes that something flew in the air and, in fact, contaminated some stain such that what the result was was the result of what flew in the air and not what was in the stain originally, this jury will know from review of all the circumstances that that evidence will have no tendency in reason to prove that Mr. Simpson is the killer. I don't think logically it takes an instruction to tell the jury what is so reasonable for any juror to understand and which will I'm sure be mentioned more than once or twice in the Defense arguments to this jury, but this instruction gives the Defense everything which legally they are entitled to in a fashion which is a legally correct statement of law which is neutral, neutral to both sides. May I have just a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. KELBERG: Mr. Clarke wants me to be sure, if I didn't mention in enough detail, that the instructions themselves, even if the court were inclined to think that there is something broader that is required, they are argumentative and inaccurate. There are so many misstatements. For example, Mr. Clarke points out that a stain going from a wet state to a dry state, that's a change which under some of these instructions would suggest that the result is unreliable and not relevant or a number of changes in the sense of bacteria getting into the mix that's contamination. But that doesn't mean that the end result of whatever DNA testing is performed is unreliable or invalid. And so again, these are issues of fact for the jury to decide with proper legal instructions. The instructions proposed by the Defense are arguments to the jury that are incomplete and misleading and more fundamentally, they are not a correct statement of law for the purposes of helping this jury neutrally assess the evidence. Submit it, your Honor.

MR. UELMEN: Yes, your Honor. The People's proposed special instruction, no. 1, completely misconstrues the whole purpose of section 403 of the evidence code. What this instruction does is say to the jury, if you find the evidence is irrelevant, disregard it, and it states that test in terms of the legal test of relevance, "If you find the evidence does not have any tendency in reason to prove any element of the crimes charged." That's a determination made by the court in admitting or rejecting evidence. You find it's relevant, it's admitted. The jury then considers it and we don't tell the jury, well, you review the judge's ruling on whether this evidence is relevant, and if you disagree with the judge, then don't consider the evidence. That's not the purpose of section 403 of the evidence code. Section 403 of the evidence code does not invite the jury to redetermine the question of relevance. It invites the jury to make a finding on a preliminary or foundational fact the relevance of the evidence is dependent upon. And there's a very--I know my students have great difficulty understanding the difference between 403 and 405 and understanding what preliminary facts are and apparently Mr. Kelberg has the same problem. So let me see if I can educate him a little bit. A preliminary fact is defined in the evidence code in section 400 as a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence. A preliminary fact, for example, relevant to much of this evidence is that there was a proper chain of custody maintained, that the evidence was maintained in an unaltered or unchanged condition from the time it was seized until the time it was examined. Now, what section 403 says is that where the relevance of the evidence depends upon the existence of a preliminary fact, the court must find that that preliminary fact, there's sufficient evidence to support a finding of that preliminary fact and then submit to the jury the determination of whether they find the preliminary fact exists, and if they find it exists, to then consider the evidence itself. And section 403 says that with respect to these kinds of preliminary facts, not all preliminary facts--there are preliminary facts as to which the finding of the court is conclusive and determinative and we don't then hand to the jury the determination, for example, of whether a privilege exists. But with respect to a preliminary fact on which the relevance of the evidence depends, we do hand that issue to the jury. And 403 says:

"The court on request shall instruct the jury to determine whether the preliminary fact exists and to disregard the evidence if they find it does not exist." That's not a determination of relevance. It is a determination of a fact upon which relevance depends. And the instructions submitted by the People invites the jury to redetermine relevance without identifying for them the specific preliminary fact that they have to find before the evidence becomes relevant. And what we have done in the proposed instructions D-1 through D-5 is to identify what the preliminary fact is that they have to find before that evidence is relevant and may be considered by them.

THE COURT: How do you address Mr. Kelberg's concern that these instructions relate to specific items of evidence and are phrased in an argumentative manner?

MR. UELMEN: Well, they have to relate to the specific items of evidence because each of these specific items of evidence is admitted under section 403 of the evidence code. I mean, these are specific items of evidence where their relevance depends on the finding of a preliminary fact and there's no other way to present it to the jury other than to identify what that preliminary fact is that they must find before they can consider--for example, evidence of blood or hairs or fibers, they have to find that a reasonable chain of custody was maintained with respect to that evidence. Otherwise, it's irrelevant. So this simply informs them that you've got to make that finding before you consider this evidence for any other purpose. With respect to specific deposits of blood, those deposits are irrelevant if they were deposited at some time other than the commission of the crime by some person other than the perpetrator of the crime. And this tells them unless you find that, disregard it. It's irrelevant. So there's simply no other way to present a 403 question to the jury other than to identify the specific item of evidence and tell them what preliminary fact they must find before they consider that.

MR. KELBERG: Very briefly, if I could, your Honor.

THE COURT: Briefly.

MR. KELBERG: I think the fact that Dean Uelmen used 403(c) one way and the fact that I may view it differently should not be taken as anything unusual in the practice of law. Perhaps my students are given my point of view, Dean Uelmen's students are given his point of view, and that's why we perpetuate, that's why we have 405 decisions from the United States Supreme Court. It's very hard for lawyers to agree on much of anything. But, for example, in instruction D-1, if you determine that a reasonable chain of custody of such evidence was not established, however, you must disregard such evidence and not consider it for any purpose. Your Honor, the jurors could find that there were things about the chain of custody that were not reasonable, yet it did not impact at all on the integrity of the evidence, and as a result, whatever result that was obtained from a testing of that evidence is, in fact, evidence which is a rational source for inferring the identity of the Defendant as the perpetrator. That's why these instructions are very misleading factually and legally. And where the real issue is, the jury must look and find for themselves from the underlying circumstances that go to the issue of whether the evidence is relevant whether, in fact, from that review of all of those circumstances, they believe the evidence has a tendency in reason to prove one of these issues. If they find from the review of all the circumstances that go to the issues, like chain of custody and so forth, that this evidence has lost its integrity of showing what it is claimed to show, the jury is told, you cannot consider it because having decided that foundational fact against the Prosecution, you have found this evidence to be irrelevant, and having made that finding, you may not consider it. That's what our proposed instruction says. That is what the law requires. I submit. Thank you, have Honor.

THE COURT: All right. All right. The court will decline to give 1 through 5. I will give a modification of People's 1. All right. Special instruction D-6, match in fibers and hairs. Mr. Kelberg.

MR. KELBERG: On D-6, your Honor, no. 1, of course, 2.80, the standard jury instruction tells the jury exactly how they are to assess expert testimony. This instruction focuses on a very narrow area of the physical evidence and attempts to highlight that evidence and the jury's understanding of what they can do with this evidence.

Even though I haven't heard a lot of the testimony in this area, it appears not only from what I have heard, but from our informal conversations in chambers that if the jury understands very little else about this case, they understand the limited nature of comparisons of hair and fiber and the difference between the power of comparisons of hair and fiber to the power of RFLP DNA testing. This instruction is unnecessary. It focuses on a narrow area. It's covered by 2.80 and I submit the court should reject it and give the standard instruction. Thank you.

MR. UELMEN: One word that has recurred with some frequency throughout this--well, lots of words that recurred with some frequency, but one that can certainly lead to some confusion on the part of the jury is the word "Match." With respect to some testimony, the witnesses were instructed not to use the word; and despite that instruction, the word crept in again and again. We're going to hear that word in closing argument, and the jury needs to know that with respect to some evidence, that word can be used and it has a specific meaning, and with respect to other evidence, that word cannot be used. And they need to know why. And this instruction simply tells them that we did not use the word "Match" with respect to hairs and fibers and here is why; because an opinion that they have similar characteristics is not a match. It does not mean that they came from the same source. And we believe it's appropriate to make that distinction because we made it in the presentation of the evidence. We're going to make it again in the closing argument and the jury should be let in on the secret as to why some evidence can be characterized as a "Match," some cannot and what the word "Match" means.

THE COURT: Thank you, counsel. All right. In this situation, the question is whether or not the court feels it's appropriate to give the jury guidance in this area, whether or not they need guidance here and whether or not there's any danger that they'll be misled from the manner in which the evidence was presented. The evidence presented with regards to both hair and fibers was very clear to the jury and the limitations with regard to that evidence as to both hair and fibers was apparent to the jurors through both direct and cross-examination. I don't think this instruction is necessary and I decline to give it. All right. D-7.

MR. KELBERG: Your Honor, I believe based upon our conversations in chambers, if we join D-7 and our proposed special jury instruction no. 3--although I believe, your Honor, we would like to work a little bit on the language. So I think it best if the court might reserve the issue here. We will definitely, based upon the court's discussion with us, coordinate by having the first sentence of our proposed special jury instruction followed by some form of the second sentence of the Defendant's proposed D-7 and then followed by some form of the third sentence of the--or the next sentence of the Defendant's proposed and concluding with the second sentence of our proposed no. 3 instruction. But we would submit this early this afternoon, your Honor.

MR. UELMEN: Your Honor, we believe that the special instruction no. D-7 is absolutely essential to a proper evaluation by the jury of the DNA evidence. Your Honor has already indicated that you would give the second and third sentences, which we believe are absolutely essential in terms of the meeting of a random match, but it is also essential that the jury know that the statistics presented with respect to matches make no accommodation of the possibility of contamination or errors in laboratory analysis, and we believe that it is appropriate to so inform the jury that probabilities, statistics assume that there has not been contamination, there has not been error in the laboratory analysis.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: I'm informed by Mr. Scheck that the importance of the laboratory error rates is so essential that the report of the national academy of science recommends that in every case, the jury be told about the significance of laboratory error rates and that your Honor had indicated that the jury would be so instructed in the final instructions that we can't--

THE COURT: I don't know that I said that. I think that I said I would allow the admission of evidence going to laboratory error rate. That was my recollection. But in any event, go ahead.

MR. UELMEN: Well, we would strongly urge that the court again look at the recommendations of the national academy of science in terms of not only what evidence is admissible, but what the jury is told about the significance of that evidence; that it is absolutely essential that they understand that these random match probabilities take no account or do not in any way take into consideration the possibility of laboratory error rates or the possibility of contamination.

MR. KELBERG: Briefly if I might, your Honor. First of all, Mr. Clarke assures me that the modifications, if any, to the second and third sentences will be minimal. We do clearly object to the last sentence of D-7.

THE COURT: Why?

MR. KELBERG: Because, no. 1, the jury has been informed through questioning of Dr. Gerdes, through the error rates at cellmark evidence and so forth about those circumstances and about what influence, if any, those circumstances play on statistics. This is argument. This is a Defense argument. Also, contamination does not mean that the statistics are unreliable for use in assessing a match because, as the court has heard, as this jury has heard, samples can be contaminated and yield reliable and valid results. So it is not an accurate statement of fact. It is a Defense argument to the jury as to what they should conclude from evidence they have already heard and which they can assess for themselves as to the significance of the laboratory error rates and the possible impact of contamination. Submitted.

MR. UELMEN: Your Honor, we're dealing with evidence that the Appellate Courts again and again have expressed grave reservations and caution about the misuse of this evidence, the potential that juries can be misled as to the significance of DNA evidence, and we believe that the recommendations of the national academy of science should be given great weight in terms of how this evidence is presented to a jury because of that tremendous risk that the jury will make assumptions about what this evidence says to them and what it doesn't say. And one thing that this evidence clearly does not say is that you can assume that the evidence is not contaminated and you can assume that there were no errors made in the laboratory analysis. And we believe that it's essential that the jury be told of the significance that a match takes no account, takes no measure with respect to that possibility, that the statistics assume that there has been no contamination, it assumes there's been no laboratory error and the jury must be informed of that fact.

(Discussion held off the record between Defense counsel.)

MR. UELMEN: With respect to Mr. Kelberg's argument that results may be valid even in the presence of contamination, that is a qualifier that can be added depending on the kind of contamination that we're dealing with. But the laboratory error rates are absolutely essential. I mean, the national academy of science's position is that random match statistics are meaningless.

THE COURT: But the NRC report says that jurors should be made aware of laboratory error rates, and that's what occurred here. They have been told about the laboratory error rates.

MR. UELMEN: No. They have to be made aware that the statistics, that the random match statistics do not take into account the possibility of laboratory error rate. That's what they need to be told, that these statistics assume that there has been no error in the laboratory analysis.

THE COURT: But wasn't that brought out before the jury during both the direct and cross-examination--

MR. UELMEN: Well--

THE COURT: --for example, of Dr. Weir?

MR. UELMEN: So was the significance of the random match. But the point is, at the instruction phase, when we're telling the jury as a matter of law what this evidence means, the risk of misuse of this evidence is so great that the jury must be told in unequivocal terms a random match does not mean that we're assessing the probable guilt of the Defendant and a random match assumes that there has not been an error in the laboratory analysis.

THE COURT: All right. Thank you, counsel.

MR. KELBERG: Your Honor, could I briefly respond?

THE COURT: No. I think I've heard enough on this. Thank you. All right. The court will instruct as follows as to this issue: "You have heard testimony about frequency estimated--excuse me--frequency estimates calculate for matches known reference blood samples and some of the bloodstain evidence items in this case. The random match probabilities statistics used by DNA experts is not the equivalent of statistics that tells you the likelihood of whether the Defendant committed a crime. The random match probability statistics is the likelihood that a random person in the population would match the characteristics that were found in the crime scene evidence and in the reference sample." And that will be the instruction.

MR. KELBERG: Your Honor, the court is not going to give the concluding--I think it wasn't the concluding sentence, but I thought based on our conversation, the court thought that the second sentence of our proposed--

THE COURT: I'm sorry. I left that out. "These frequency estimates are being presented for the limited purpose of assisting you in determining what significance to attach to those bloodstain testing results."

MR. KELBERG: Your Honor, we will prepare the modified instruction.

THE COURT: We'll stand in recess. 1:30.

(At 12:05 P.m., the noon recess was taken until 1:30 p.m. of the same day.)

LOS ANGELES, CALIFORNIA; THURSDAY, SEPTEMBER 21, 1995 1:40 P.M.

Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted.)

(Janet M. Moxham, CSR no. 4855, official reporter.)

(Christine M. Olson, CSR no. 2378, official reporter.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record in the Simpson matter. All right. Let's go to D-9.

MR. UELMEN: Your Honor, if we could just ask the court to consider one very brief and very straightforward addition to the combination of D-7 and People's 3 that your Honor indicated you would do. Our concern is that there is a potential here to seriously mislead the jury by telling them that frequency estimates are presented in order to assess what's the significance could be attached to testing results when the same results could also be explained by laboratory error, and we would ask the court to simply add a sentence that comes straight out of the national research council report to tell the jury that frequency estimates and laboratory error are different phenomena and both should be considered in determining what significance to attach to bloodstain testing results. We believe that that cautionary note is justified by the NRC report and is certainly justified by the evidence in this case and will avoid misleading the jury that only frequency estimates are relevant in assessing the weight that they should give to testing results.

THE COURT: Any additional comment in response?

MR. KELBERG: Yes, your Honor. Mr. Clarke, who is much more familiar with the contents of the NRC report, tells me that there were a number of recommendations made in the NRC report, only one of which appears to be the focus of this jury instruction, one of which was jurors should be selected based on their familiarity with DNA. So the fact that the Defense wants to highlight a recommendation and take it into the form of a jury instruction when, in fact, there is nothing within the contents of the NRC report which says that that is in fact required--what is, in fact, required is that the jury be apprised, as they have been through the course of testimony is inappropriate. It singles out one particular aspect. And laboratory error, your Honor, applies to any scientific evidence. I was thinking in an area that I did have some involvement with, the Coroner's testimony. There were lab tests run for blood alcohol and blood content on specimens from the two decedents. Laboratory error can apply to the accuracy of the finding--

(Brief pause.)

THE COURT: Go ahead.

MR. KELBERG: Laboratory error can apply to the finding of, as I recall, .02 for the blood alcohol of Nicole Brown Simpson. To isolate this and bring it in the form of a jury instruction highlighting to the jury one factual issue on which the jury has been fully apprised is inappropriate. And, your Honor, if the court wants to see--if the court has not, we prepared the modified instruction that the court wished and I have it here if the court wants to take a look at it to see it in its final form.

THE COURT: All right.

MR. KELBERG: May I approach?

THE COURT: Yes, please. And you've given a copy to counsel?

MR. KELBERG: I have. And I've also attached the other instructions that we were going to provide the court.

THE COURT: Thank you.

MR. KELBERG: And I have given counsel--

MR. UELMEN: One brief response and we'll submit this matter, your Honor. The risk of isolating one explanation is a risk that arises from the present instruction that the court proposes to give by just saying that frequency estimates should be considered. These are estimates that range in one phenomena, and to say to the jury, consider that in assessing what significance you should give to these results without at the same time offering the alternative explanation of the possibility of laboratory error is highly misleading, and the very fact that jurors are not acquainted with DNA technology, that they haven't been prescreened because they understand this phenomena simply undermines the importance of not misleading them. And that's precisely the point that the NRC report is making and that's a point of view that we think is very important for this jury to hear.

THE COURT: All right. Mr. Uelmen, one of the problems I'm having though is that, one, the NRC is a scientific document not written by lawyers or judges and does not address specifically the issue of jury instructions. The case that you cite to me, State versus Bloome, Justice Page's concurring opinion, does include a jury instruction which does not include the language that you're asking for. So unless--is there any case that you can cite to me where there's been an Appellate Court approving the instruction that you're seeking, because what you've cited to me here does not support the instruction you request.

MR. UELMEN: I believe Mr. Scheck can provide some additional citations, but--

THE COURT: All right. At this point--counsel, if you have something else you want to submit to the court, fine. But at this point, based upon what's been presented to me, that's the instruction I'm going to give. All right. Let's move on to D-9.

MR. UELMEN: We'll make additional submission, your Honor. But we believe the NRC report is really addressing the question of what use of this science should be made in the courtroom, and the whole point of the report is to highlight the dangers that are presented when jurors are asked to assess this kind of evidence, and we believe one of those dangers is simply the focus on one half of the equation and not on the other.

THE COURT: All right. D-9.

MR. KELBERG: Your Honor, the People's objection to D-9 is multifaceted. No. 1, of course, we start with Caljic 2.11 regarding the lack of necessity for either side to call all witnesses. D-9 is focusing on the Prosecution and only the Prosecution without citation, of course, to a well-known line of cases arising from Vargas, People versus Vargas, V-A-R-G-A-S, 9 Cal. 3D, dealing with the right of the Prosecution to talk to the jury about the failure of the Defense to call logical or material witnesses, of course, other than the Defendant when such evidence should or was available to the Defense. We feel that the appropriate instruction to give in this area is the proposed Defense instruction D-10 to which we do not object and then the right of counsel for the Defense and the Prosecution to argue to the jury the failure of one side or the other to produce what each side perceives to be logical or material witnesses that the other side didn't perceive and for the jury to draw the unfavorable inference that that side arguing the position wishes the jury to draw. That's where it should be. D-10 is an accurate statement of law. D-9 is not. It is slanted. It is one-sided. It is inappropriate.

MR. UELMEN: Your Honor, there's a reason why this is one-sided, and that is simply that the Prosecution has the burden of proof. It cannot be said that the Defense might be expected to produce a witness because the Defense has no obligation to present any evidence or witnesses. This instruction is motivated primarily by the failure of the Prosecution to call the Coroner. How many murder cases has your Honor ever heard of in which the Coroner who conducted the autopsy was not called as a witness, but instead, another medical examiner was brought in to describe the results of the autopsy? And we believe that--

THE COURT: And the Coroner was still available.

MR. UELMEN: And the Coroner was available. Absolutely.

THE COURT: No. We had a situation here in Los Angeles County where a very hard-working deputy medical examiner died and there were dozens of murder cases that involved his testimony that other people had to come in and testify to. So it's not an unusual phenomena when the person is not available.

MR. UELMEN: And I'm sure when they called another medical examiner in, the jury was told that the initial Coroner had died. But here we have a situation where it is fair to say the Prosecution, which has the burden of proof in this case, might be expected to produce the Coroner who conducted the autopsy. Their failure to do so justifies an inference that the testimony would have been unfavorable to the Prosecution.

MR. KELBERG: Could I briefly respond, your Honor?

THE COURT: Excuse me just a second. Dean Uelmen, what's your posture on D-10 as it relates to--excuse me--what is your position as to D-10 standing by itself?

MR. UELMEN: Our fear of D-10 standing by itself is the fear that it will turn around to sting us for reasons that are beyond our control. D-10 says that if a party offers weaker and less satisfactory evidence when it is within their power to produce stronger and more satisfactory evidence, the evidence should be viewed with distrust. Now, that's fine as far as it goes--as long as the jury knows what stronger and more powerful evidence a party has the power to produce. The one setting in which we were unable to produce stronger and more powerful evidence and had to produce weaker and less satisfactory evidence related to the testimony of Laura McKinny where we had to simply summarize the contents of transcripts and tape recordings when the jury was aware of the existence of those transcripts and tape recordings and no explanation was offered to them as to why those transcripts and tape recordings were not produced in court. And, of course, the reason they were not produced is because the court ruled that they were inadmissible. That's all we want the jury to know, that they didn't hear those tapes, they didn't see those transcripts because the court ruled they were inadmissible. With that caution, special instruction D-10 is a perfectly appropriate instruction that we do want given to tell the jury that if a party has the power to produce stronger and more powerful evidence and they produce weaker and less satisfactory evidence, then that evidence should be viewed with distrust.

MR. KELBERG: May I briefly respond, your Honor? Even though whoever will be arguing this case to the jury is not down here, I feel absolutely comfortable in telling this court that there will be no argument made that D-10 should be applied to the failure of the Defense to produce more than was produced from the McKinny tape transcript available source or sources. That is not going to be the application of this instruction. What is going to be the application of this instruction will involve why Dr. Rieders, for example, was called to talk about Mr. Martz' results rather than bringing in the man or the woman who obtained the stains from the various samples that were collected from the gate and the socks, did the testing as appropriately laid out in the view of Dr. Rieders and concluded that those stains were from an EDTA preserved blood source. When you don't bring in that person and you bring in Dr. Rieders instead, you've produced far weaker evidence than was available to you and the jury may draw the logical inference. And the fact is, the Defense put on evidence. This is not burden of proof stuff. This is you decided not to rest on the state of the Prosecution's case. You decided to put people on. Well, when you put people on and you don't put the best people on, you can have the jury draw a negative inference. And with respect to the Coroner, no problem, because by putting on evidence, they could have called Dr. Golden. And I would anticipate whoever argues this case on our behalf to the jury might point that fact out, if he had so much to offer, bring him in. They had the power to do so. So the instruction is a perfectly correct statement of the law, perfectly appro--D-10 that is, perfectly appropriate for the argument of counsel. The McKinny instruction is improper. It is an argumentative form of an instruction and it is highlighting a specific area, and we are not by any way, shape or form going to suggest that the jury should find a negative inference for the Defense case from the failure of them to put on more than they did with respect to that material. Thank you, your Honor.

THE COURT: All right. Thank you, counsel. All right. The offer of D-9 will be rejected as not phrased in a neutral manner. I will likewise decline to give the special proposed instruction regarding Laura hart McKinny. However, if the Prosecution chooses to argue the line of argument that Mr. Kelberg has just promised the court that they won't, the court will revisit that. And that holds with all instructions, if a contrary argument is made that requires the court to reinstruct.

MR. KELBERG: Your Honor, should that event occur, am I excluded from contempt citation if counsel chooses to disregard my representation?

THE COURT: You may, but your boss won't.

MR. KELBERG: That is his concern, not exactly mine. I appreciate it.

THE COURT: All right. D-11.

MR. UELMEN: Is it the court's intention to give D-10 then without the Laura McKinny--

THE COURT: I understood you to understand--I understood your position to be, you don't want it if I don't give the Laura hart McKinny.

MR. UELMEN: Let me reconsider that in terms of the proffer of the Prosecution that they will not argue McKinny. We withdraw.

THE COURT: Withdraw D-10?

MR. UELMEN: Yes.

MR. KELBERG: Your Honor, could I then have it relabeled in a photocopy form as People's proposed special jury instruction no. 4, and we will offer it.

THE COURT: And I'll likewise decline.

MR. KELBERG: You want me to formally offer it?

THE COURT: No. The record is clear.

MR. KELBERG: All right.

THE COURT: All right. D-11.

MR. KELBERG: D-11, your Honor, is a matter that is appropriately provided in the form of a Defense motion to the court to argue as a matter of law the alleged description of material evidence. It is what the lawyers would call the Hitch/Trombetta/Youngblood line of case authorities and to seek the appropriate sanctions. It is not appropriate as a jury instruction. This is--

THE COURT: Isn't one of the Trombetta/Hitch remedies an instruction to the jury?

MR. KELBERG: It is an instruction if, in fact, the court should find--the court should find as part of a motion that there has been the loss of material evidence. And, of course, what case is not cited here, which I think has to be the most important thing, even if the court were thinking, well, I'll entertain a motion now from the Defense under this line of authority, is Arizona versus Youngblood or Youngblood versus Arizona from the United States Supreme Court, which requires a finding of bad faith on the part of the Prosecution or prosecuting agency in order to even invoke the remedies that would be invoked under the Trombetta line of cases.

But the bottom line is, it comes initially as a motion to the court for the court to make a legal determination and then, if and only if the court makes a legal determination that the motion is meritorious does the court determine what is the appropriate sanction. The Zamora case is the California Supreme Court case which incidentally I think the court is well-aware predates Trombetta, predates Youngblood. It comes out the same year as the nation case, which is the follow-up to the hitch case, and it is a case saying that a sanction can be and should be in the form of a jury instruction. But that is presupposing that the court has made as a matter of law a determination that there has been the destruction of material evidence. And now, of course, under the more restrictive United States Supreme Court decisions in Trombetta and Youngblood, the finding that the court would have to make to justify some sanction is much more stringent than the requirement under the terms of hitch, nation and Zamora. This is not a jury instruction issue. This is a motion issue. This instruction should be rejected.

MR. UELMEN: I think the argument really addresses just the last sentence of special instruction no. D-11, and we would certainly contend that if an appropriate remedy for a finding of the willful destruction of material evidence is dismissal, then such a finding by the jury would justify an acquittal. But we want to make clear that the giving of an instruction should not hinge on whether the court deals it appropriate to include the last sentence of this instruction. We believe the first part of the instruction states the law accurately, that the jury in looking at evidence that they know is not available, that has been lost--and they are aware, the jury knows that the contents of Nicole Brown's stomach retrieved during the autopsy, they know that the seats were removed from the Bronco at Viertel's garage, they know the scrap of paper on the ground at the murder scene was not retrieved, they know the ice cream cup was not recovered; and they should be told what happens to these items is a question for you to decide, and if you find that they are unavailable due to the negligence of law enforcement, even if it is without intent to falsely convict the Defendant, they can regard that unavailability as another fact that they can consider with all of the other evidence in terms of assessing the Defendant's guilt or innocence. That is an appropriate and accurate statement of the law and the jury should be informed because it is aware of the absence of this evidence.

MR. KELBERG: Does the court need me to respond?

THE COURT: All right. I disagree. I don't believe it is an appropriate instruction under this scenario. All right. D-12.

MR. KELBERG: In short and simple terms, your Honor, this instruction is argumentative although it is kind of interesting. It says "The absence of evidence you would normally expect to find in a Prosecution based upon circumstantial evidence." Well, what does this jury know? I mean, I wasn't present for the voir dire. I don't know if they're expert in what you would normally expect to find in a circumstantial evidence murder case. I wonder how many of these people realize that the absence of the body itself, the person killed may be a case that leads to a conviction for murder, the L. Ewing Scott case being probably the most well-known or the Billionaire Boys Club being another well-known case. No. 1, this jury is in no position to know normally what we expect to see and compare to what is absent. I think I've had enough fun with this instruction if that's the right term. It is clearly argumentative. Counsel can argue this issue to the jury and tell them what is absent that they should expect to have been present, but the bottom line is, this is not an appropriate instruction of law.

MR. UELMEN: In cases we've cited, your Honor, People versus Hall and People versus Blakely, clearly support the giving of this instruction. The jury should be informed that in a circumstantial evidence case, it is not inappropriate for them to consider the absence of evidence that might normally be expected. And the jury is aware that this evidence has not been produced. They know that we don't have a weapon here, we don't have bloody clothing, we don't have identifiable fingerprints. Those are all circumstances that they can consider, and a failure to give this instruction would not inform the jury that in a circumstantial evidence case, they can consider not only the evidence that has been produced, but the evidence that has not been produced.

THE COURT: All right. This instruction is really more appropriate as argument and I'll decline to give it. All right. D-13.

MR. KELBERG: Your Honor, again, counsel attempts to argue the Defense case to the jury in the form of D-13, evidence of efforts to fabricate or plant evidence in any form is affirmative evidence of the weakness of the Prosecution's case. I don't believe that sounds like a neutral statement of the law. It sounds like what I would expect Mr. Cochran to say. And perhaps if the statement doesn't speak well enough for itself, the fact that the citations relied upon are of somewhat ancient vintage should suggest that this has been something less than a persuasive authority in the 50 or 60 years since the graham decision and 45 years since the Remington dicta opinion. Submit it, your Honor.

MR. UELMEN: Both this instruction and the following one, D-14, your Honor, address directly the evidence that has been offered in this case with respect to the bloodstain on the sock, the bloodstain on the rear gate under--in the case of both of these items of evidence, we have significant evidence in this record from which the jury could conclude there was an intentional effort to procure or create false or fabricated evidence. Now, the consequence of the jury coming to that conclusion is not merely that they should disregard that evidence, that if they find that the bloodstain on the gate or the bloodstain on the sock was created in an effort to fabricate evidence against the Defendant, that they merely then just disregard the bloodstain on the gate or the bloodstain on the sock. What this instruction says to the jury is, not only should you disregard that evidence, but that is affirmative evidence of the weakness of the Prosecution's case and it gives rise to an inference that the--the false effort to implicate the Defendant is reason to doubt his guilt and it's not appropriate that the jury simply be left to their own devices in terms of the significance of that evidence.

THE COURT: All right. As to D-13, it's clearly argumentative. I decline to give that and I likewise decline to give D-14. All right. D-15, 16 and 17.

MR. KELBERG: Your Honor, obviously, no. 1, we start with, the jury will receive 2.20, the standard jury instruction which has for many, many years completely and clearly given the jury the kinds of factors that they are to consider in determining the factual questions which they must decide and from which they will reach their legal determinations on the question of guilt or innocence and there is no basis to take something, to give superfluous instructions.

As the court may recall, when I read this morning from the Garceau case, 6 Cal. 4th 140, 191 to 194, one of the basis that the court said was improper but not error to reject Defense instructions was the instructions also--the instruction was repetitious of the standard cautionary instructions given to the jury in this case. That was 270 and 271, but it's applicable to 2.20. D-16, which talks about "Demeanor," again, the term that's used, but also, quote, the whole nexus of sense impressions you get from the witness, unquote, I would substitute the word "Device" except that that's probably from the standpoint of a legal instruction not exactly what the law intends in the way of informative information in a jury instruction. This is argument. This is covered by 2.20, which includes demeanor and which is I think self-evident for the jury. D-17, we have modified 2.20 and the court has our proposed modification which includes a paragraph dealing with the effects, if any--and I have to pull my copy out here if the court will give me a moment--"The effects of any"--it's the fourth paragraph of the modified 2.20 that we have submitted, "Effects, if any, from the use or consumption of alcohol." I believe "Drugs" should be stricken because I do not believe from everybody I've talked to that there is any evidence that any witness at the time of the events witnessed was allegedly under the influence of drugs or had taken drugs. But the full instruction, "The effects, if any, from the use or consumption of alcohol, drugs or other intoxicants by the witness at the time of the events about which the witness testified." Dean Uelmen's proposed instruction D-17 is also talking about at the time the witness testified. I am aware of no evidence that has been received by this jury to suggest that any witness at the time the witness was testifying was found to be under the influence of alcohol, drug or other intoxicant. It would be totally irrelevant to the jury's consideration. So we believe that 2.20, the standard instruction modified to include the concern expressed by the Defense in their D-17 proposed instruction is the proper and fully adequate instruction for the court to give.

MR. UELMEN: The purpose of these instructions, your Honor, is to emphasize for the jury the role that they play as the final arbitrator of the demeanor and appearances of witnesses and it's up to them to determine whether, in their judgment, a witness was impaired at the time the witness testified.

For example, in assessing the testimony of the witness Kato Kaelin, there were aspects of his testimony that might lead the jury to wonder--and what we believe is appropriate is that they be informed they're entitled to wonder, that they are the judges of assessing the weight to be given to the witnesses based on their demeanor and appearance. And certainly the relevance of intoxicants, alcohol, drugs, whatever is a two-edged sword. It is relevant not only in terms of the condition of the witness at the time of the events that they observe, but also at the time that they testify, and the jury should be so informed.

THE COURT: But is there any factual basis you have for the possibility that somebody was under the influence of drugs or alcohol at the time they testified?

MR. UELMEN: That is entirely up to the jury based on appearances, and we believe that in the parade of witnesses who have come before them in the last eight months, there may be reasons to wonder about some of them, and I think it's appropriate that the jury be told, you're entitled to wonder, you are the final judges of credibility.

THE COURT: All right. I think that 220 does adequately cover these. So I'll decline to give that special instruction.

MR. UELMEN: Will your Honor give that as modified in the People's submission to include "The effects, if any, from the use or consumption of alcohol, drugs or other intoxicants at the time of the events about which the witness testified"?

THE COURT: Is that your--

MR. UELMEN: I believe that's the key point with respect to the testimony of Ron Shipp.

THE COURT: All right. I agree.

MR. KELBERG: And may I inquire, your Honor, the court is denying D-15 or sustaining the objection to D-15, D-16 and D-17?

THE COURT: That is correct. That is correct. All right. D-19.

MR. KELBERG: How about D-18?

THE COURT: I'm sorry. D-18.

MR. KELBERG: D-18, your Honor, the objection is simply that this singles out a particular group of witnesses and highlights a particular group of witnesses in an inappropriate fashion. 2.20 says "Every witness" and makes sure that these standards apply to every witness. This type of instruction, if you will, is appropriate in the voir dire phase of a trial when counsel and the court are interested to know whether or not jurors may view more favorably or less favorably the testimony of a witness who happens to be a police officer simply because they are a police officer. It does not--it is not appropriately placed in the form of a jury instruction which highlights that segment. Do we do the same for expert witnesses? Do we do the same for people who come from a different kind of occupation that may not be well thought of by some people? I submit to the court that there is no need for this instruction.

MR. UELMEN: Well, your Honor, again and again throughout this trial, the suggestion has been made to this jury that the testimony of a police officer should be given special consideration right up to yesterday when Commander Bushey got on the witness stand and talked about how the Los Angeles Police Department has tried to do its best in this case. What we're dealing with here is a simple instruction that says to the jury a police officer's testimony is assessed and considered the same as any other witness in the case. We've had a lot of other--a lot of police officers testify in this case. For example, they tried to elicit from Detective Vannatter the degree of frustration that he was experiencing after 25 years of service as a police officer.

The implicit inference that they're trying to create with those questions is to say to the jury police officers are special people. They're out there attempting to serve you and they're entitled to some special consideration. That may well be true, but it is not a relevant fact in assessing the credibility of a witness, and it is certainly appropriate in this case, with the number of police officers and the crucial nature of their testimony, to tell this jury and give the instruction which is well-supported in the law, that a police officer has his or her credibility assessed the same as any other witness.

THE COURT: All right. A jury instruction that singles out one particular classification of witnesses for special attention I don't believe is appropriate. So I'll decline to give that one. All right. Special instruction D-19.

MR. KELBERG: Your Honor, I believe the court sustained the objection to that. This was the perjury, putting 19 and 20 together.

THE COURT: Yes. I think we dealt with this already. All right. D-21.

MR. KELBERG: Your Honor, we are going to get into a series if I'm not mistaken--perhaps this is the first--but with the reasonable doubt issue. As Freeman makes clear and as 1096 and 1096(A) make clear, 2.90 is the appropriate reasonable doubt instruction. The court need not give any additional reasonable doubt instruction, and one acts at one peril when modifying reasonable doubt instructions, on top of which this is not an accurate statement of law because the jury will assess under circumstantial evidence instructions, under direct evidence instructions, under general credibility instruction and 2.90 which says it is that state of the case or the mind of the jury which after your entire comparison and consideration of all the evidence leaves your mind in such a state you cannot say you have an abiding conviction in the truth of the charges. So this is not an accurate statement of law and it should not be given as an effort to argue to the jury. Again, this is a one-sided--one-sided instruction. That is not a proper statement of law to allow the Defense to argue to the jury what the jury legally should do when, in fact, this is not what legally the jury in fact should do. Submit it.

MR. UELMEN: I'll concede this is a one-sided instruction because the burden of proof in a criminal case is one-sided. It all rests on the Prosecution. They have the burden of proving guilt beyond a reasonable doubt, and that burden pervades all of the evidence including the evidence with respect to credibility of witnesses and we believe the jury should be reminded of that fact.

THE COURT: All right. I think this matter is adequately covered by the other instructions. So I'll decline to give this one. All right. No. D-22.

MR. KELBERG: Your Honor, I believe we handled 22, 23 and 24. I have marks sustained to our objections on all three.

THE COURT: This has to do with the other crimes evidence, correct?

MR. KELBERG: Correct, and the burden of proof.

THE COURT: Right. I believe we took care of that in the 250 discussion.

MR. KELBERG: Yes. We have submitted a modified 250.

THE COURT: All right. D-25.

MR. KELBERG: Your Honor, clearly, Caljic 2.51 properly adequately instructs the jury on the significance of the presence or absence of motive. Again, counsel understandably wants to try and put their argument into the guise of the jury instruction to tell the jury that the absence of motive in and of itself can give rise to a reasonable doubt. The jury instruction in the form of Caljic 2.51 properly tells the jury that the absence of motive may indicate that the Defendant is, in fact, not guilty. There is no basis to expand upon it. The case law seems to suggest that where there is a proper patterned instruction to cover this, the courts would be well guided to stay with that instruction. We submit 2.51, which has been submitted as part of our package, should be given and D-25 rejected.

THE COURT: All right.

MR. UELMEN: Your Honor, it's clearly the law that absence of motive may in itself give rise to a reasonable doubt. So we believe it's appropriate to include in the motive instruction at least the sentence indicating that fact. While 251 says absence of motive may tend to establish intent, it does not add that it may itself give rise to a reasonable doubt, and we would ask at least that 251 be modified to state absence of motive may tend to establish innocence and may itself give rise to a reasonable doubt.

MR. KELBERG: If I could briefly respond, your Honor.

THE COURT: No. Thank you.

MR. KELBERG: All right.

THE COURT: This particular instruction 2.51 is a particularly time-proven instruction. If I were to make this a neutral instruction in the manner suggested by the parties, then I would have to include also a sentence saying that presence of motive is significant evidence of guilt, which I'm not inclined to do. So I'm going to decline the special instruction, give the standard 2.51. All right. D-26.

MR. KELBERG: D-26, your Honor, again, we're getting into this issue of defining reasonable doubt. But now we are going into specifically circumstantial evidence. With all due respect to Dean Uelmen, going back to a 1931 case, predating the Caljic instructions I think suggests that this is probably not an instruction of law that has been well-received in recent time. 2.01, 2.02 are time-tested proper statements.

In fact, this statement, if the court looks to the second to the last line, "But they must exclude to a moral certainty every other theory," those words, "Moral certainty," seem to have created a lot of activity in the United States Supreme Court and in the Caljic committee and in Sacramento with respect to 1096 and 2.90. I submit, your Honor, that this is clearly not an appropriate statement of law. 2.01 is and is the instruction that should be given.

MR. UELMEN: Your Honor, the fact that we have venerable citations dated back 60 years should not detract from their weight, but should add to their weight. The core principles that in a circumstantial case, the Prosecution must exclude every reasonable possibility that they must--that the evidence must be inconsistent with any reasonable theory other than guilt is such a core and important principle in this case that we do not believe it can be possibly overemphasized and that this instruction based on the claim is an appropriate addition to the standard Caljic instruction.

THE COURT: All right. I don't believe the terminology here is sufficiently modern and I'm going to decline to give it. I think it's accurately covered by 2.01. All right. D-27.

MR. KELBERG: Your Honor, again, basically the same arguments that I made to D-26. But even the last sentence is even more inappropriate. All that could be resolved in the Defense favor. 2.90 says, "One does not look to imaginary or possible doubt. One looks to reasonable doubt." So whatever was the thinking in 1947 in the Denton case, I think as the court has indicated, modern language and modern interpretations of the due process clause and reasonable doubt dictate that this instruction be denied.

MR. UELMEN: We'll submit it on the same argument as previously, your Honor. We're moving up though from 1931 to 1947.

THE COURT: I see we're about to leap to 1986.

MR. KELBERG: I think that's `68 actually, your Honor. It's going to turn out to be `68.

THE COURT: Yes, it is. I'm going to decline D-27. D-28.

MR. KELBERG: D-28, your Honor, 2.90, the Freeman argument, everything I've said about the need to stay with 2.90 and what 1096(c) says. And again, 1968 authority, given what has happened with Freeman and with Sandoval versus California, Victor versus Nebraska--first of all, I just happen to know on the third line, talking about in the indictment, I don't think this case is being prosecuted under indictment. Again, what was going on in 1968 I don't think is terribly relevant to the appropriate language that should be given a jury. 2.90 is the appropriate language. Submit it.

MR. UELMEN: We'll certainly agree that the substitution of "Information" for "Indictment" in the third line, your Honor, but we believe it is important that the jury be told that the reasonable doubt standard applies to every fact or element necessary for a conviction.

THE COURT: All right. I think that that's already made clear by the--by standard jury instructions dealing with reasonable doubt and the use of circumstantial evidence. So I'll decline D-28. D-29.

MR. KELBERG: We're regressing, your Honor. We just moved back 48 years. We're now in 1920 with the Beckerstaff opinion. Your Honor, again, 2.90 tells the jury what is the standard, what is the test, and I'll submit the matter on the previous arguments.

MR. UELMEN: I don't believe 2.90 addresses the particular point emphasized in this instruction, that the jury cannot convict based on mere suspicion, and that even if they have a suspicion, that should not in any way dissuade them from returning a verdict of not guilty if they have a reasonable doubt, and that's a distinction that should be made very clear to the jury in the instructions, that a suspicion should not in any way dissuade them from a finding of reasonable doubt.

THE COURT: All right. This is adequately covered in 290. I'll decline D-29. D-30.

MR. KELBERG: D-30, again, your Honor, 2.90, Freeman, you'll notice that the instruction ends with "To a moral certainty," again, the archaic language that has been knocked out, and I just submit it on the same arguments.

MR. UELMEN: Submit it, your Honor.

THE COURT: All right. D-30 will be declined. D-31.

MR. KELBERG: I believe, your Honor, the court has rejected this one and offered 4.50, which I have given to the court in the form I understand the court wanted it modified.

THE COURT: That's correct.

MR. KELBERG: And similarly, D-32.

THE COURT: That's correct. All right. D-33.

MR. KELBERG: Your Honor, somewhat similar to the proposed special instruction dealing with absence of motive. Now, we are talking in terms of evidence of demeanor. First of all, they're trying to single out a class of evidence for the jury's consideration, which the People submit is not appropriate in a jury instruction. But what's to me interesting is, the Defendant has offered evidence that his demeanor was inconsistent with the demeanor of one who is planning or had committed the brutal murders in this case. It will be for the jury to decide what is the expected demeanor of a murderer. I don't believe any expert testimony was offered on that subject, at least as I understand it.

THE COURT: Somebody tried though.

MR. KELBERG: I hope you're not looking at me and suggesting that I did. Did I?

THE COURT: No, you didn't, but somebody on that side of the table tried.

MR. KELBERG: I can't be held accountable for the sins of all of my colleagues. The other thing is, the second sentence goes on: "Such evidence alone--"may require leaving out, of course, even the necessary phrasing, "If believed," since clearly this is the one-sided evidence of the Defense. It is argumentative. It's a matter for argument by counsel. This instruc