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. Mr. Simpson is again present before the court with his counsel--let's have it quiet in the courtroom, please. Mr. Simpson is present before the court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Neufeld, Mr. Uelmen. The People are represented by Miss Clark, Mr. Darden and Mr. Kelberg. The jury is not present. The record should reflect that the court has conducted an off-the-record in chambers conference with counsel to conclude our discussions concerning the jury instructions. And so that the record is clear, the Prosecution has withdrawn their request for instruction 8.31, second degree murder on an implied malice theory. They have withdrawn that. They have also withdrawn 8.25, murder by means of lying in wait as a theory of premeditation. The record should reflect that the court has modified 2.20 at the request of the Defense to include any influence that might be exerted upon a witness at the time of their testimony by any drug, alcohol or other substance. The court has heard argument in chambers regarding the DNA instruction that the court intends to give, and I've heard the argument regarding the request that the court instruct on a laboratory error rate as a phenomena that should be considered by the jury. Any other comment on that particular issue? Is the matter submitted?
MS. CLARK: Submitted.
MR. KELBERG: Submitted, your Honor.
MR. UELMEN: Submitted.
MR. COCHRAN: Mr. Scheck.
THE COURT: All right. I have contemplated this issue. This is unfortunately an area where instructions from other courts, and approved by the court of appeal in various states, there is not an overabundance of guidance to the trial court. I believe that the--the argument that laboratory error rates should be considered is a valid argument and I will instruct--I will include the following two sentences on the court's special instruction no. 3: "frequency estimates in laboratory error rates of different phenomena both should be considered in determining what significance to attach to bloodstain testing results." All right. Any other comment on instructions before we invite the jurors to join us? Mr. Uelmen?
MR. UELMEN: For the record, your Honor, with respect to the rulings that we were informed of this morning, we would like to reiterate our objection to the special instruction that the court proposes to give on section 403 of the evidence code. We believe that giving this instruction will be prejudicial error because it deprives the Defendant of a factual determination by the jury of the chain of custody issue to which he is entitled under section 403 of the evidence code. And I know your Honor noted, in denying our pretrial motion challenging the admission of the evidence from the Bronco, that chain of custody would be an issue for the jury to consider, but we believe that this instruction deprives us of a jury determination of that issue by submitting it to them just in general terms of relevancy, rather than requiring a finding of the preliminary fact that a chain of custody was observed. Secondly, we want to object to the court giving section 271 and 272. We believe this highlights the prejudice to the Defendant in the admission of the Ron Shipp testimony, since the court has indicated this is the only basis on which the jury will be instructed that they can find an admission by the Defendant.
THE COURT: I don't think that is correct. I indicated that Mr. Kelberg's argument that statements made by a Defendant that are later shown to be untrue or in some way assist the Prosecution, those are legally defined as admissions.
MR. UELMEN: Even if they refer to the prior similar acts admitted under section 1101?
THE COURT: No, there are other comments.
MR. UELMEN: We--we further object to the denial of the court--by the court of the proposed instruction D-33 relating to the demeanor of the Defendant. Your Honor indicated that you thought the reasonable doubt instruction would cover that.
THE COURT: Reasonable doubt, burden of proof.
MR. UELMEN: We believe that the Defendant is entitled to an instruction with respect to his theory of the case and the demeanor evidence was a very important part of the Defense's theory of the case. And finally, we would like to make one more request, that the court at least instruct the jury that Detective Mark Fuhrman is an unavailable witness, without any comment as to any conclusions to be drawn from that fact. We believe this Defense is significantly prejudiced by the jury being sent out to decide this case without any information as to what became of Detective Fuhrman.
THE COURT: All right. Thank you, counsel. Mr. Kelberg, any response?
MR. KELBERG: Yes, your Honor. Again, I don't think there is any basis to highlight that, no. 1. No. 2, I don't think anyone is going to argue, from the Prosecution perspective, the failure of the Defense to bring back Detective Fuhrman in any way is going to strengthen the inference of guilt in this matter. The credibility issue is obviously there and no one is going to hide from it. With respect to the other requests by Dean Uelmen, obviously I agree with the court's ruling on D-33. I don't think I need comment on that. I think the record should reflect that because we have withdrawn a theory of implied malice for second degree murder, that we have asked the court to conform other instructions, that, for example, 3.31 as modified to strike any reference to implied malice wherever it may appear and I think has indicated it was going to do so in those additional instructions. With respect to the Fuhrman matter, one last point is I believe legally that it violates the evidence code provision which I do not believe is unconstitutional as applied to a witness. To have an adverse inference drawn from the proper invocation of a privilege and to tell the jury about unavailability invites speculation instead of staving off speculation, so I would request the court to keep the record as it is on the jury instructions with respect to Mr. Fuhrman and have the general instructions apply. Thank you, your Honor.
THE COURT: All right. I think I'm bound by the ruling of the court of appeal on that issue, so I will decline the request. All right. One last thing that we need to do. Mr. Cochran, I indicated to you previously that I wanted to make certain--my understanding is that the Defense is going to rest today, as is the Prosecution, in front of the jury, and that your client--you have discussed with your client his right to testify as a witness and it is your choice and his agreement that the Defense rests at this time without presenting his testimony?
MR. COCHRAN: Your Honor, may I respond?
THE COURT: Yes.
MR. COCHRAN: Good morning, your Honor.
THE COURT: Good morning.
MR. COCHRAN: In this regard, just two quick things if the court pleases. We do--at the time we rest we will move the court for a motion of acquittal on behalf of Mr. Simpson and submit that, if the court pleases. And Mr. Simpson would like to make a brief statement with regard to the reported--Mr. Simpson would like to make a brief statement regarding the waiver, if the court pleases.
THE COURT: Certainly. This is his knowledge that he has the right to testify?
MR. COCHRAN: Yes. With regard to the last thing, we would at the appropriate time move the balance of our exhibits into evidence whenever you deem that is appropriate. Mr. Douglas has some--some numbers for redacted videos and various things.
THE COURT: All right.
MS. CLARK: Your Honor, the People would object to the Defendant making any statement in court other than a waiver. That is the only appropriate statement that he should be making on the record at this time.
THE COURT: All right. It is not before the jury at this point.
MS. CLARK: Your Honor, you know, we are all aware of the realities of life in this case and the problem with conjugal visits and the problem with telephone calls that are only monitored on one side. And this is a very obvious attempt by the Defense to again get material admitted through those conjugal visits and telephone calls that has not been admitted in court. I urge the court strenuously to exercise control here, take the waiver and do not permit basically allocution, that is, testimony without any cross-examination. It is inappropriate and it is done very deliberately by the Defense for a clear purpose. Please don't do this, your Honor. I beg you. I beg you. Take the waiver and let the Defendant admit that he will not testify and waive his right, but nothing further should be said on the record in open court. May I have a moment, please?
(Discussion held off the record between the Deputy District Attorneys.)
MR. COCHRAN: May I respond just briefly, your Honor?
THE COURT: Hold on.
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Mr. Kelberg points out, absolutely correct, that all the court need do at this time is advise Mr. Simpson of his right to testify, that it is his personal right to Tuesday and to invoke, that he may testify over the objections of his lawyers, if he so chooses, and that if he declines to do so, then he has waived that right. And that is all the court need do.
MR. COCHRAN: May I respond, your Honor?
THE COURT: Briefly.
MR. COCHRAN: There seems to be this great fear of the truth about anybody speaking in this case. This is still America and we can talk, we can speak. Nobody can stop us. The court asked me about Mr. Simpson and I respectfully indicated to him that he wanted to just briefly address the court. It is interesting at this length of time--and I don't want to sink at this point, I want to get the case over--we won't start the argument until Tuesday. But he has a right to speak with regard to the waiver and they can't stop him from speaking and that is what it boils down to, your Honor.
THE COURT: It also boils down to the court can control the orderly process. And all I am interested in at this point, now that I have been told that the Defense intends on resting and not presenting any further witness or any further evidence other than their proffer that Mr. Simpson understands his right to testify as a witness, that after discussing that with his lawyers he is making an intelligent decision not to testify.
MR. COCHRAN: The court asked me about that and I indicated to the court that Mr. Simpson would like to respond to the court.
THE COURT: All right.
MR. COCHRAN: Personally.
THE COURT: Mr. Simpson, good morning, sir.
THE DEFENDANT: Good morning, your Honor. As much as I would like to address some of the misrepresentations made by myself and my--and Nicole concerning our life together, I am mindful of the mood and the stamina of this jury. I have confidence, a lot more it seems than Miss Clark has, of their integrity, and that they will find, as the record stands now, that I did not, could not and would not have committed this crime. I have four kids; two kids I haven't seen in a year. They ask me every week, "dad, how much longer?" I want this trial over. Thank you.
THE COURT: All right. Mr. Simpson, do you understand your right to testify as a witness?
THE DEFENDANT: Yes, I do.
THE COURT: All right. And you choose to rest your case at this point?
THE DEFENDANT: I choose.
THE COURT: Thank you very much, sir. All right. Mr. Douglas, do you have a motion to move the Defense exhibits subject to redaction of various videotapes?
MR. DOUGLAS: I do, your Honor. If the court pleases, good morning. We have a redacted version of exhibit 1104, which I would like to label as 1104-A.
(Deft's 1104-A for id = redacted 1104)
MR. DOUGLAS: We have a redacted version of exhibit 1103, which I would like to label 1103-A.
(Deft's 1103-A for id = redacted 1103)
MR. DOUGLAS: We have a redacted version of exhibit 1002, which I would like labeled 1002-A.
(Deft's 1002-A for id = redacted 1002)
MR. DOUGLAS: We have a redacted version of exhibit 1102, which I would label 1102-A.
(Deft's 1102-A for id = redacted 1102)
MR. DOUGLAS: And we have a redacted version of 1375, which I would label 1375-A.
THE COURT: All right.
(Deft's 1375-A for id = redacted 1375)
THE COURT: All right. Any comments?
MR. DOUGLAS: Thank you, your Honor.
THE COURT: Any comment?
MS. CLARK: No comment on that, your Honor. We have an exhibit. I would like to substitute 527-A for 527 and I will give it to Mrs. Robertson.
(Peo's 527-A for id = substituted 527)
MS. CLARK: I would like to mark the Thano Peratis tape as 615-A as the tape shown at the 402 hearing.
THE COURT: The entire tape?
MS. CLARK: Yes.
(Peo's 615-A for id = substituted 615)
MS. CLARK: And I would like to withdraw 599 through 601.
THE COURT: They are what?
MS. CLARK: They are two of the planners and the telephone book of the Defendant.
THE COURT: All right.
(Peo's 599 thru 601 for id = withdrawn)
MS. CLARK: May I also ask, your Honor, for the court to inquire of Mr. Simpson, perhaps he would allow me then the opportunity, since he would like to make these statements to the court, I would like the opportunity to examine him about them. May he take a seat in the blue chair and we will have a discussion?
THE COURT: Thank you.
MR. KELBERG: Your Honor, there is one other matter just for the record. The court had requested that I inquire on the People's position regarding staples and I had made the inquiry. It is my understanding that staples will not be a matter of consideration in argument, unless it is raised by the Defense in their argument, and as a result we feel that that will resolve the issue.
THE COURT: All right. Thank you.
MR. KELBERG: You are welcome.
THE COURT: All right. One other thing. I am going to make inquiry of the jury when we have them out here. I'm going to ask them to contemplate the proposal to extend the argument, the court hours, for the purposes of concluding argument. And I indicated to you that I will make inquiry to change my plans for Friday, September the 29th to see if we can have a full court day on that date.
MR. COCHRAN: May we address this issue briefly at this point?
THE COURT: I'm sorry?
MR. COCHRAN: May we address this issue briefly at this point?
THE COURT: No. We've had our informal discussion. I need to see what my schedule looks like. I want to see what the jurors are willing to do.
MR. COCHRAN: I was going to ask the court to inquire of the jurors.
THE COURT: That is what I just said.
MR. COCHRAN: All right.
THE COURT: All right. Anything else before we invite the jurors to join us? I'm sorry, Mr. Cochran, you wanted to make an 1181 motion I thought.
MR. COCHRAN: Yes, your Honor. I would just briefly move for a judgment of acquittal pursuant to 1181 of the penal code and submit it.
THE COURT: Miss Clark?
MS. CLARK: Submit.
THE COURT: All right. The motion will be denied. All right. Deputy Smith, let's have the jurors, please.
(Brief pause.)
MR. KELBERG: Your Honor, do you have packets of your instructions? I wasn't clear if you were going to have--
THE COURT: I'm sorry, I just have my original here.
MR. KELBERG: That is okay. We have it.
THE COURT: All right.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. And let the record reflect that we have now been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: Mr. Cochran, on behalf of the Defense, do you have any further testimony or evidence to present?
MR. COCHRAN: Good morning, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
MR. COCHRAN: Your Honor, I'm very pleased to say that we have no further testimony to present at this time, and as difficult as it is, the Defense does rest at this point. Thank you, your Honor.
THE COURT: Miss Clark, on behalf of the People?
MS. CLARK: Yes. Thank you, your Honor. Good morning, ladies and gentlemen.
THE JURY: Good morning.
MS. CLARK: We ask the court to receive all of the People's exhibits and the People rest.
(Peo's exhibits = in evid)
THE COURT: All right. Upon receipt of the exhibits from both sides, both sides having now rested, ladies and gentlemen, as you heard, the counsel for both the Prosecution and the Defense have rested their case. There will be no further testimony or evidence presented to you. And it is now going to be my duty to instruct you on the law that applies to this case. After I finish instructing you on the law, then we will hear the arguments of the attorneys and that will commence on Tuesday, September the 26th. On Monday, September the 25th, I will be here with the attorneys who are available, we will organize all the exhibits so that when the argument commences it will go forward in an orderly and efficient and quick manner, I hope. Having said that, there is a proposal that has been made that I am contemplating with regard to the arguments by the attorneys and that is to extend the court hours for next week.
The proposal is to start with the normal morning session at nine o'clock, go until noon. Start the afternoon session and go to approximately 5:00 or 6:00 in the evening. Take a break for an evening meal and then have a session in the evening to approximately 8:00 or nine o'clock in the evening. And it is my feeling that by doing that, that we can finish the arguments perhaps next week or as soon as possible thereafter. I know, however, that that would disrupt your schedule. It would place an extra burden on the court staff and this is something that I have not decided yet to do, but I would like your input to see whether or not you would be willing to stay for an additional evening session each day until we have concluded the arguments. And I'm actually--I have seen eight nods affirmative. I see smiles. Everybody? Well, we have one unanimous decision already. All right. All right. Then this is also subject--I will--as you know, I have to make arrangements to get you all fed. The bailiffs have to change their schedule. I might have to bring in a third court reporter. It will be--I will have some logistical things to do before we make that in stone, but I wanted first to know whether or not you were willing to do it. And having gotten affirmative answers, I will pursue that this afternoon. All right. Ladies and gentlemen of the jury, you have heard--excuse me. I'm sorry. And Deputy Bashmakian, now that I'm starting the instructions, nobody is to enter or leave the courtroom during the court's instructions. All right.
(Reading.)
LADIES AND GENTLEMEN OF THE JURY:
You have heard all the evidence and it is now my duty to instruct you on the law that applies to this case. After I conclude reading these instructions to you, we will commence with the argument of counsel. The law requires that I read these instructions to you here in open court. Please listen carefully. It is also my personal policy that you will have these instructions in their written form in the jury room to refer to during the course of your deliberations. You must base your decision on the facts and the law. You have two duties to perform: First, you must determine the fact from the evidence received in the trial and not from any other source. A "fact" Is something that is proved directly or circumstantially by the evidence or by stipulation. A stipulation is an agreement between the attorneys regarding the facts. Second, you must apply the law that I state to you to the facts as you determine them and in this way arrive at your verdict and any finding you are instructed to include in your verdict. You must accept and follow the law as I state it to you, whether or not you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.
You must not be influenced by pity for a Defendant or by prejudice against him. You must not be biased against the Defendant because he has been arrested for this offense, charged with a crime or brought to trial. None of these circumstances is evidence of guilt and you must not infer or assume from any or all of them that he is more likely to be guilty than innocent. You must not be influenced by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the Prosecution and the Defendant have a right to expect that you will conscientiously consider and weigh the evidence, apply the law and reach a just verdict regardless of the consequences.
If any rule, direction or idea is repeated or stated in different ways in these instructions, no emphasis is intended and you must not draw any inference because of its repetition. Do not single out any particular sentence or any individual point or instruction and ignore the others. Consider the instructions as a whole and each in light of all the others. The order in which the instructions are given has no significance as to their relative importance.
Statements made by attorneys during the trial are not evidence, although if the attorneys have stipulated to or agreed to a fact, you must regard that fact as conclusively proven. If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. Do not assume to be true any insinuation suggested by a question asked of a witness. A question is not evidence and may be considered only as it enables you to understand the answer.
Do not consider for any purpose any offer of evidence that was rejected by the court or any evidence that was stricken by the court. You must treat it as though you had never heard it.
You must decide all questions of fact in this case from the evidence received here in court in this trial and not from any other source.
You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there has been no evidence. This means, for example, that you must not on your own visit the scene, conduct experiments or consult reference works or persons for additional information. You must not discuss this case with any other person except a fellow juror, and you must not discuss the case with a fellow juror until the case is submitted to you for your decision and then only when all twelve jurors are present in the jury room.
Evidence consists of the testimony of witnesses, writings, material objects or anything presented to the senses and offered to prove the existence or nonexistence of a fact.
Evidence is either direct or circumstantial. Direct evidence is evidence that directly proves a fact without the necessity of an inference. It is evidence which by itself, if found to be true, establishes that fact. Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.
It is not necessary that facts be proved by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct evidence and circumstantial evidence. Both direct evidence and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other.
However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the Defendant is guilty of the crime, but two, cannot be reconciled with any other rational conclusion. Further, each fact which is essential to complete a set of circumstances necessary to establish the Defendant's guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt. Also, if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the Defendant's guilt and the other to his innocence, you must adopt that interpretation which points to the Defendant's innocence and reject that interpretation which points to his guilt. If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.
If you find that before this trial the Defendant made a willfully false or deliberately misleading statement concerning the crime for which he is now being tried, you may consider such statement as a circumstance tending to prove consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination.
Certain evidence was limited--excuse me.
Certain evidence was admitted for a limited purpose.
At the time this evidence was admitted you were admonished that it could not be considered by you for any other purpose other than the limited purpose for which it was admitted. Do not consider such limited evidence for any purpose except the limited purpose for which it was admitted.
Neither side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events or to produce all objects or documents mentioned or suggested by the evidence.
Testimony given by a witness at a prior proceeding who was unavailable at this trial has been read to you from the reporter's transcript of that proceeding. You must consider such testimony as if it had been given before you in this trial.
With the exception of nurse Thano Peratis, evidence that on some former occasion a witness made a statement or statements that were inconsistent or consistent with his or her testimony in this trial, may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on such former occasion. Evidence of the Thano Peratis video taped statement, which is People's exhibit 615, which may include statement that were consistent or inconsistent with his former testimony presented by reading the transcript of his former testimony given before both--excuse me--given at the preliminary hearing, may be considered by you solely for the purpose of testing the credibility of Mr. Peratis' former testimony. If you disbelieve a witness' testimony that he or she no longer remembers a certain event, such testimony is inconsistent with a prior statement or statements by him or her describing that event.
Every person who testifies under oath is a witness. You are the sole judges of the believability of a witness and the weight to be given the testimony of each witness. In determining the believability of a witness, you may consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony of the witness, including but not limited to any of the following: The extent of the opportunity or the ability of the witness to see or hear or otherwise become aware of any matter about which the witness has testified;
The effects, if any, from the use or consumption of alcohol, drugs or other intoxicant by the witness at the time of the events about which the witness has testified or at the time of his or her testimony;
The ability of the witness to remember or to communicate any matter about which the witness has testified;
The character and quality of that testimony;
The demeanor and manner of the witness while testifying;
The existence or nonexistence of a bias, interest or other motive;
Evidence of the existence or nonexistence of any fact testified to by the witness;
The attitude of the witness toward this action or toward the giving of testimony;
A statement previously made by the witness that is consistent or inconsistent with the testimony of the witness;
The character of the witness for honesty or truthfulness or their opposites;
An admission by the witness of untruthfulness.
Discrepancies in a witness' testimony, or between his or her testimony and that of others, if there were any, do not necessarily mean that the witness should be discredited. Failure of recollection is a common experience and innocent misrecollection is not uncommon. It is also a fact that two persons witnessing an incident or transaction often will see or hear it differently. Whether a discrepancy pertains to a fact of importance or only to a trivial detail should be considered in weighing its significance.
A witness who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars.
You are not bound to decide an issue of fact in accordance with the testimony of a number of witnesses which does not convince you, as against the testimony of a lesser number or other evidence which appeals to your mind with more convincing force. You may not disregard the testimony of the greater number of witnesses merely from caprice, whim, prejudice or from a desire to favor one side as against the other. You must not decide an issue by the simple process of counting the number of witnesses who have testified on the opposing sides, the final test is not in the relative number of witnesses, but in the convincing force of the evidence.
You should give the testimony of a single witness whatever weight you think it deserves. However, testimony by one witness which you believe concerning any fact is sufficient for the proof of that fact. You should carefully review all evidence upon which the proof of such fact depends.
A person is qualified to testify as an expert if he or she has special knowledge, skill, experience, training or education sufficient to qualify him or her as an expert on the subject to which his or her testimony pertains. A duly qualified expert may give an opinion on questions in controversy at a trial. To assist you in deciding such questions, you may consider the opinion, with the reasons given for it, if any, by the expert who gives the opinion. You may also consider the qualifications and the credibility of the expert. You are not bound to accept an expert opinion as conclusive, but should give to it the weight to which you find it to be entitled. You may disregard any such opinion if you find it to be unreasonable.
In examining an expert witness counsel may propound to him or her a type of question known in the law as a hypothetical question. By such a question the witness is asked to assume to be true a set of facts and to give an opinion based upon that assumption. In permitting such a question, the court does not rule and does not necessarily find that all the assumed facts have been proved. The court only determines that those assumed facts are within the probable or possible range of the evidence. It is for you, the jury, to find from all the evidence whether or not the facts assumed in a hypothetical question have been proved. If you should find that any assumption in such question has not been proved, you are to determine the effect of that failure on the proof--excuse
Me--you are determine the effect of that failure of proof on the value and weight of the expert opinion based upon the assumed facts.
In resolving any conflict that may exist in the testimony of expert witnesses, you must weigh the opinion of one expert against that of another. In doing this, you should consider the relative qualifications and credibility of the expert witnesses, as well as the reasons for each opinion and the facts and other matters upon which it was based.
In determining the weight to be given the opinion expressed by any witness who did not testify as an expert witness, you should consider his or her credibility, the extent of his or her opportunity to perceive the matters upon which his or her opinion is based and the reasons, if any, given for it. You are not required to accept such opinion but should give it the weight, if any, to which you find it to be entitled.
The court has admitted physical evidence such as blood, hair and fiber evidence and experts' opinions concerning the analysis of such physical evidence. You are the sole judges of whether any such evidence has a tendency in reason to prove any fact at issue in this case. You should carefully review and consider all the circumstances surrounding each item of evidence, including but not limited to its discovery, collection, storage and analysis. If you determine any item of evidence does not have a tendency in reason to prove any element of the crimes charged or the identity of the perpetrator of the crimes charged, you must disregard such evidence.
You have heard testimony about frequency estimates calculated for matches between known reference blood samples and some of the bloodstain evidence items in this case. The random match probability statistic used by DNA experts is not the equivalent of a statistic that tells you the likelihood of whether a Defendant committed a crime. The random match probability statistic 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. These frequency estimates are being presented for the limited purpose of assisting you in determining what significance to attach to those bloodstain testing results. Frequency estimates and laboratory errors are different phenomena. Both should be considered in determining what significance to attach to bloodstain testing results.
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 and 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:
A characteristic method, plan or scheme in the commission of criminal acts similar to the method, plan or scheme used in the commission of the offense in this case which would further tend to show the existence of the intent which is a necessary element of the crime charged, the identity of the person who committed the crime, if any, of which the Defendant is accused or a clear connection between the other offense and the one of which the Defendant is accused, so that it may be inferred that if the Defendant committed the other offenses, the Defendant also committed the crimes charged in this case;
The existence of the intent which is necessary--which is a necessary element of the crime charged;
The identity the person who committed the crime, if any, of which the Defendant is accused;
A motive for the commission of the crime charged. For the limited purpose for which you may consider such evidence, you must weigh it in the same manner as you do all the other evidence in this case. You are not permitted to consider such evidence for any other purpose.
Within the meaning of the preceding instruction, such other crime or crimes purportedly committed by a Defendant must be proved by a preponderance of the evidence. You must not consider such evidence for any purpose unless you are satisfied that the Defendant committed such other crime or crime. The Prosecution has the burden of proving these facts by a preponderance of the evidence. Within this limited context "preponderance of the evidence" Means evidence that has more convincing force and the greater probability of truth than that opposed to it. If the evidence is so evenly balanced that you are unable to find that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who has the burden of proving it.
You should consider all the evidence bearing upon every issue, regardless of who produced it.
Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may tend to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.
A Defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a Defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.
In deciding whether or not to testify, the Defendant may choose to rely upon the state of the evidence and upon the failure, if any, of the Prosecution to prove beyond a reasonable doubt every essential element of the crime charged against him. No lack of testimony on the Defendant's part will make up for a failure of proof by the Prosecution so as to support a finding against him on any such essential element.
An admission is a statement made by the Defendant other than at his trial which does not by itself acknowledge his guilt of the crimes for which such Defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence. You are the exclusive judges as to whether the Defendant made an admission, and if so, whether such statement is true in whole or in part. If you should find that the Defendant did not make the statement, you must reject it. If you find that it is true in whole or in part, you may consider the part which you find to be true.
Evidence of an oral admission of the Defendant should be viewed with caution.
No person may be convicted of a criminal offense unless there is some proof of each element of the crime independent of any admission made by him outside of this trial. The identity of the person who is alleged to have committed a crime is not an element of the crime nor is the degree of the crime. Such identity or degree of the crime may be established by an admission.
Witness Ron Shipp testified to a statement alleged to have been made by the Defendant concerning dreams. You must first determine whether such statement was made by the Defendant. If you find the statement was not made by the Defendant, you shall disregard the statement. If you find that the statement referred to subconscious thoughts while asleep, you are to disregard the statement. If you find that the statement referred to an expression of a desire or expectation, you may give to such statement the weight to which you feel it is entitled. Evidence of oral statements by a Defendant should be viewed with caution.
A Defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the Prosecution the burden of proving him guilty beyond a reasonable doubt.
Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. 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 the perpetrator of any such charged crime. The Defendant is not required to prove himself innocent or to prove that any other person committed the crimes charged.
In the crimes charged in counts 1 and 2, there must exist a union or joint operation of act or conduct and a certain specific intent or mental state in the mind of the perpetrator. Unless such specific intent and/or mental state exists, the crime to which they relate is not committed. The crime of murder in the second degree requires the specific intent to kill known as express malice.
The crime of murder in the first degree requires the specific intent to kill known as express malice and the mental state of premeditation and deliberation.
These terms are more fully defined later in these instructions.
The specific intent or mental state with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the Defendant guilty of the crimes charged in counts 1 and 2, or the crime of second degree murder, which is a lesser crime, unless the proved circumstances are not only, one, consistent with the theory that the Defendant had the required specific intent or mental state, but two, cannot be reconciled with any other rational conclusion. Also, if the evidence as to any such specific intent or mental state is susceptible of two reasonable interpretations, one of which points to the existence of the specific intent or mental state, and another to the absence of the specific intent or mental state, you must adopt that interpretation which points to the absence of the specific intent or mental state. If, on the other hand, one interpretation of the evidence as to such specific intent or mental state appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.
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 here on trial. If after a 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 Defendant is accused in counts 1 and 2 of the having committed the crime of murder, a violation of penal code section 187.
Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder in violation of section 187 of the California penal code. In order to prove such crime, each of the following elements must be proved:
One, a human being was killed;
Two, the killing was unlawful;
And three, the killing was done with malice aforethought. Express malice is defined as when there is manifested an intention unlawfully to kill a human being. The mental state--excuse me.
When it is shown that a killing resulted from the intentional doing of an act with express malice, no other mental state need be shown to establish the mental state of malice aforethought.
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed.
The word "aforethought" Does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.
All killing, which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought, is murder of the first degree.
The word "willful," As used in this instruction, means intentional. The word "deliberate" Means formed or arrived at or determined upon as a result of careful thought and weighing of the considerations for and against the proposed course of action. The word "premeditated" Means considered beforehand.
If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part the Defendant to kill, which was the result of deliberation and premeditated, so that it must have been formed upon preexisting reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree.
The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it include an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree. To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.
Murder of the second degree is the unlawful killing of a human being with malice aforethought where there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to establish deliberation and premeditation.
Murder is classified into two degrees, and if you should find the Defendant guilty of murder, you must determine and state in your verdict whether you find the murder to be of the first or second degree.
If you are convinced beyond a reasonable doubt that the crime of murder has been committed by the Defendant, but you have a reasonable doubt whether such a murder was murder of the first or of the second degree, you must give the Defendant the benefit of the doubt and return a verdict fixing the murder as the second degree.
Before you may return a verdict in this case, you must also agree unanimously not only as to whether the Defendant is guilty or not guilty, but also, if you should find him guilty of an unlawful killing, you must agree unanimously as to whether he is guilty of murder of the first degree or murder of the second degree.
If you find the Defendant in this case guilty of murder of the first degree, you must then determine the following special circumstance,--whether the following special circumstance is true or not true: The Defendant has in this case been convicted of at least one crime of murder of the first degree and one or more crimes of murder in the first or second degree. The Prosecution has the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true. In order to find a special circumstance alleged in this case to be true or untrue, you must agree unanimously.
You will state in your finding--excuse me. You will state your special finding as to whether this special circumstance is or is not true on the form that will be supplied to you.
To find the special circumstance, referred to in these instructions as multiple murder convictions, is true, it must be proved:
That the Defendant has in this case been convicted of at least one crime of murder in the first degree and one or more crimes of murder in the first or second degree.
You are not permitted to find a special circumstance alleged in this case to be true based upon circumstantial evidence unless the proved circumstance is not only. One. Consistent with the theory that a special circumstance is true, but two. Cannot be reconciled with any other rational conclusion.
Further, each fact which is essential to complete a set of circumstances necessary to establish the truth of a special circumstance must be proved beyond a reasonable doubt. In other words, before an inference essential to establish a special circumstance may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt. Also, if the circumstantial evidence is susceptible of two reasonable interpretations, one of which points to the truth of a special circumstance and the other to its untruth, you must adopt that interpretation which points to its untruth, and reject the interpretation which points to its truth. If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.
Each count charges a distinct crime. You must decide each count separately. The Defendant may be found guilty or not guilty of either/or both of the crimes charged. Your finding as to each count must be stated in a separate verdict form.
If you are not satisfied beyond a reasonable doubt that the Defendant is guilty of the crime charged, you may, nevertheless, convict him of any lesser crime if you are convinced beyond a reasonable doubt that the Defendant is guilty of such lesser crime.
The crime of second degree murder is a lesser to that of first degree murder.
Thus you are to determine whether the Defendant is guilty or not guilty of first degree murder as charged in counts 1 and 2 or of any lesser crime. In doing so, you have discretion to choose the order in which you evaluate each crime and consider the evidence pertaining to it. You may find it productive to consider and reach tentative conclusion on all charges and lesser crimes before reaching any final verdicts. However, the court cannot accept a guilty verdict on a lesser crime unless you have unanimously found the Defendant not guilty of the greater crime.
It is alleged in counts 1 and 2 that in the commission of the crime charged, the Defendant personally used a deadly or dangerous weapon.
If you find such Defendant guilty of the crime thus charged or a lesser included crime, you must determine whether or not such Defendant personally used a deadly or dangerous weapon in the commission of such crime. A deadly or dangerous weapon means any weapon, instrument or object that is capable of being used to inflict great bodily injury or death. The term "used a deadly or dangerous weapon," As used in this instruction, means to display such weapon in an intentionally menacing manner or intentionally to strike or hit a human being with it. The Prosecution has the burden of proving the truth of this allegation. If you have a reasonable doubt whether--if you have a reasonable doubt that it is true, you must find it to be not true.
You will include a special finding on that question in your verdict using a form that will be supplied to you for that purpose.
The purpose of the court's instructions is to provide you with the applicable law so that you may arrive at a just and lawful verdict. Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given that the court is expressing any opinion as to the facts of this case.
All right. Ladies and gentlemen, this concludes the instructions that I am going to give to you prior to the arguments of the attorneys. As I indicated to you, we will stand in recess until Tuesday morning, September the 26th, to begin at nine o'clock with the arguments of the attorneys. It is an interesting date because if you will recollect, those of you who came to us in the first batch of jury selection, we actually started jury selection on September 26, 1994, and I see some people recollect that date. All right. At this point you must remember all my admonitions to you. Do not discuss this case among yourselves, do not form any opinions about the case, do not conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to this case. All right. As far as the jury is concerned, we will stand in recess.
MR. COCHRAN: May we approach?
MR. UELMEN: May we approach, your Honor?
THE COURT: Yes.
MR. COCHRAN: Thank you.
(The following proceedings were held at the bench:)
THE COURT: Over at the side bar.
MR. UELMEN: We noted two errors. We have been reading the instructions. In reading instruction 1.03--
THE COURT: Hold on.
(Brief pause.)
MR. UELMEN: --your Honor injected in the first sentence "you must decide all questions of fact in this case from the evidence received here in court in this trial," and we believe, because of the jury view in this case, that may mislead the jury.
THE COURT: Okay.
MR. KELBERG: And I picked up the same thing.
MR. UELMEN: In reading instruction 2.13, the special instruction on Thano Peratis, your Honor left out reference to the Grand Jury testimony which was read to the jury in this case.
MR. COCHRAN: Right.
THE COURT: Okay.
MR. KELBERG: We put that in. That was the representation that was made.
THE COURT: All right.
MR. COCHRAN: One other thing, Judge. With regard to--just a point of information. With regard to the scheduling, when will we find that out?
THE COURT: As soon as I get back from lunch. I have to see how long I can push the court reporters. I have to see if I can get a third court reporter. I have to make a lot arrangements, so like I told them, I won't know until--
MR. COCHRAN: We can call into you?
THE COURT: But we will know by Monday because I will be here Monday.
MR. COCHRAN: You will be here Monday?
THE COURT: Yes.
MR. KELBERG: Your Honor, one last request. Could we get the final packet of jury instructions as early as possible?
THE COURT: Oh, yes. As soon as we are done I will have somebody photocopy them.
MR. KELBERG: Thank you.
MR. COCHRAN: I think that is--I think that is it, I think.
THE COURT: Yes. Okay.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Ladies and gentlemen, the attorneys have brought to my attention that I misread two of the instructions to you, so I'm going to reread them to you in their correct form and they will be brief.
(Reading.)
You must decide all questions of fact in this case from the evidence received in this trial and not from any other source. You must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence.
This means, for example, that you must not on your own visit the scene, conduct experiments or consult reference works or persons for additional information. You must not discuss this case with any other person, except a fellow juror, and you must not discuss the case with a fellow juror until the case is submitted to you for your decision and only when all twelve jurors are present in the jury room.
One additional that I misread to you.
(Reading.)
With the exception of nurse Thano Peratis, evidence that on some former occasion a witness made a statement or statements that were inconsistent or consistent with his or her testimony in this trial may be considered by you not only for the purpose of testing the credibility of the witness, but also as evidence of the truth of the facts as stated by the witness on such former occasion. Evidence of the Thano Peratis video taped statement, People's exhibit 615, which may include statements that were consistent or inconsistent with his former testimony presented by the reading of the transcript of his former testimony given before both the Grand Jury and at the preliminary hearing, may be considered by you solely for the purpose of testifying--excuse me--solely for the purpose of testing the credibility of Mr. Peratis' former testimony. If you disbelieve a witness' testimony that he or she no longer remembers a certain event, such testimony is inconsistent with a prior statement or statements by him or her describing that event.
Ladies and gentlemen, that concludes the reading of the preliminary instructions to you. After the attorneys finish their argument I do have some concluding instructions to you that are very brief. Remember my admonitions to you. Excuse me. Please have a pleasant weekend. And we will see you back here on Tuesday morning, nine o'clock. All right. We will stand in recess.
(At 11:01 A.M. An adjournment was taken until, Tuesday, September 26, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the state of California,)
Plaintiff,)
Vs.) No. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Friday, September 22, 1995 volume 229
Pages 47105 through 47171, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 229 pages 47105 - 47171
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Day date session page vol.
Friday September 22, 1995 A.M. 47105 229
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PROCEEDINGS
Discussion re jury instructions 47105 229
Mr. Simpson waives right to testify 47115 229
Discussion re exhibits 47116 229
1118.1 motion 47119 229
Jury instructions 47124 229
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
527-A - Substituted 47117 229 for 527
615-A - Substituted 47117 229 for 615 (Withdrawn) 599 thru 601 - 47117 229
All remaining People's exhibits 47122 229
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1104-A - Redacted 1104 47116 229
1103-A - Redacted 1104 47116 229
1002-A - Redacted 1104 47116 229
1102-A - Redacted 1104 47116 229
1375-A - Redacted 1104 47116 229
All remaining Defense exhibits 229