[ Home | Contents | Search | Next | Previous | Up ]
From: Pat Valentino
Date: 2/2/01
Time: 12:12:21 AM
.30
Simpson's counsel argued the questioning was improper because (1) it was not
factually correct that Simpson took a lie detector test, or failed it, (2) the results of
Simpson's consultation with a polygraph examiner were protected by attorney-client
privilege, and (3) Simpson's offer to take one, which the police refused, did not
open the door to inquiry that he had taken and failed one. Goldman's counsel
replied he was basing his inquiry on facts related in a book which had been
published and that any attorney-client privilege was waived by the publication. The
trial court at that point overruled the objection.
Goldman's counsel then cross-examined Simpson further. Simpson testified
he went to the office of an expert Edward Gelb only for the purpose of
understanding how a polygraph worked, and after he was finished he told his
attorneys he was willing to take a lie detector test. Simpson denied that the
consultation with Gelb was actually a lie detector test, rather it was only a
demonstration. He testified, "As far as I know, I didn't take a polygraph test."
When Goldman's counsel asked whether Simpson scored a minus 22 indicating
extreme deception, the court sustained an objection.
Later in the trial, the court decided it should admonish the jury in connection
with this line of questioning. The court drafted and discussed with counsel its
proposed instruction. Simpson's counsel argued the instruction was not sufficient to
cure the allegedly false implication that Simpson took and failed a lie detector test.
Simpson's counsel moved instead for a mistrial, which the court denied. Goldman's
counsel reiterated his claim that his questioning was proper because Simpson's
counsel had opened the door in his opening statement. The trial court rejected that
argument also, noting that Goldman's counsel had not objected to the opening
statement. Goldman's counsel requested the court to modify the instruction to make
.31
it "more balanced." The trial court also rejected this suggestion, then proceeded to
deliver its instruction to the jury as follows:
"Ladies and gentlemen, the Court at this time will give you
specific instructions regarding the plaintiffs' examination of
Mr. Simpson which was just completed concerning lie detectors. I
want you to listen very closely. All communications between an
attorney and his client are absolutely privileged. This means that such
communications cannot be used by anyone for any purpose except with
the permission of the client. Mr. Simpson cannot be asked any
questions about any communications with his attorneys. Furthermore,
there is no evidence that Mr. Simpson consented to the publication of
any of his communications with his attorney. You will recall, Mr.
Simpson's attorney, Mr. Baker, in his opening statement to you, spoke
on the subject of a lie-detector test. By this opening statement, Mr.
Simpson opened the subject of lie detectors to examination by the
plaintiff. This, however, did not open the subject of any
communication on this matter between Mr. Simpson and his attorneys,
or persons acting for the attorneys for any purpose. In this trial, Mr.
Petrocelli questioned Mr. Simpson whether he took a lie-detector test,
any score and meaning thereof. I instruct you that his questions do not
and cannot establish that Mr. Simpson took a . . . lie-detector test, a
score and meaning thereof. Statements of counsel, that is, the
statements or questions of Mr. Petrocelli, are not evidence and may not
be considered by you for any purpose. The references or statements
regarding a lie-detector test and Mr. Petrocelli's questions are not
evidence unless they were adopted by Mr. Simpson in his answers. A
question by itself is not evidence. You may consider questions only to
the extent the content of the questions are adopted by the answer. Mr.
Simpson's answer to the question of whether he took a lie-detector test
was that he was given an explanation of how the test worked and that
he did not take the test. There is no other evidence before you that Mr.
Simpson took a lie-detector test, and the plaintiff is bound by Mr.
Simpson's response. Likewise, when Mr. Petrocelli asked Mr.
Simpson whether he knew what the score on the test was, whether it
was a minus 22, or whether it indicated extreme deception, these were
questions by an attorney and do not constitute evidence. Mr. Simpson
denied any test score or any knowledge of what test scores meant, and
there is no evidence before you of any test score or what a score
.32
means. There was only Mr. Petrocelli's questions which were not
adopted by an answer. Plaintiff is bound by Mr. Simpson's response.
Therefore, there is no evidence before you that Mr. Simpson took a lie-detector
test, no evidence about any score on such a test, nor any
evidence of what any score means. You must totally disregard the
questions about taking lie-detector tests, test scores and their meanings,
and treat the subject as though you had never heard of it. Do all of the
jurors understand these instructions? [The jurors nodded affirmatively,
and when asked if any had questions, nodded negatively.]"
Discussion
In the absence of a stipulation between the parties, the results of a polygraph
examination, as well as the fact of an offer to take, a refusal to take, or the taking of
a polygraph examination, are inadmissible as evidence in California criminal and
civil proceedings. (Evid. Code, § 351.1; People v. Morris (1991) 53 Cal.3d 152,
193; Arden v. State Bar (1987) 43 Cal.3d 713, 723; People v. Thornton (1974) 11
Cal.3d 738, 763-764.) But the present case is not one in which the results of a
polygraph test were admitted into evidence. There were only statements by counsel,
which the trial court appropriately instructed the jury are not evidence. The trial
court's instructions prevented any prejudice to Simpson from insinuations in
counsel's questions. (People v. Parrella (1958) 158 Cal.App.2d 140, 147; see
People v. Morris, supra, 53 Cal.3d at p. 194; People v. Paul (1978) 78
Cal.App.3d 32, 40; People v. Babcock (1963) 223 Cal.App.2d 813, 817-818.)
This case is strikingly similar to People v. Parrella, supra, 158 Cal.App.2d
140. There the defendant on direct examination by his own attorney stated that
while in custody he volunteered to take, and did take, a lie detector test. The
prosecutor did not object to this testimony on the ground the defendant's willingness
to take a lie detector test was inadmissible; rather, contending that defendant had
.33
opened the door, the prosecutor asked the defendant on cross-examination for the
results of the test. Defense counsel objected that this question was improper
because the results of a lie detector test are not admissible evidence. The trial court
ruled that the prosecutor's question went too far, and instructed the jury that "'the
question of lie detector has no place in the case. It has been determined that lie
detectors are not admissible in evidence in a trial of a case.'" (Id. at pp. 144-145.)
When the prosecutor mentioned it again during final argument the trial court again
admonished the jury not to consider any mention of the test. (Id. at p. 146.) The
appellate court affirmed. It held the defendant's objectionable testimony to which
the prosecutor failed to object did not open the door for the prosecutor to show the
results of the test, but the prosecutor's questions were not prejudicial to the
defendant in light of the trial court's instructions. (Id. at p. 147.)
Here, the only evidence regarding a lie detector test elicited by the cross-examination
was Simpson's testimony that he did not take and fail one, and the trial
court specifically instructed the jury that plaintiffs were bound by that answer.
Simpson's claim that the instructions were ineffective to cure contrary insinuations
in counsel's questioning lacks merit under the circumstances. (People v. Morris,
supra, 53 Cal.3d 152, 194 [jury is presumed to have followed instructions]; People
v. Paul, supra, 78 Cal.App.3d 32, 40 [the testimony concerning the actual results of
the lie detector test, although stricken, was favorable to the defendant, that he had
passed it].) The cases cited by Simpson involved far more extensive or egregious
emphasis on the results of the test. (Simpson cites People v. Wochnick (1950) 98
Cal.App.2d 124, 128 [police officer extensively testified about the lie detector test
he administered to the defendant and having asked defendant at the conclusion of it
whether defendant had any explanation for the responses of the machine; held,
despite a limiting instruction that this testimony was admitted only as background to
.34
the officer's accusatory statement and the defendant's answer, "the evidence of the
partial results of the lie detector test with respect to defendant's reaction upon being
shown the murder weapon was indelibly implanted in the minds of the jurors and
could not but have had a prejudicial effect"]; People v. Aragon (1957) 154
Cal.App.2d 646, 658-659 [prosecutor repeatedly suggested in arguments to jury that
defendant's interrogator had given defendant a lie detector test he had not passed;
held, "it would be hard to believe that the jury here considered the statements (of
the interrogator) solely as accusatory statements"; "obviously" the references to the
lie detector test were highly prejudicial]; and People v. Schiers (1971) 19
Cal.App.3d 102, 109-114 [police officer repeatedly testified he told the defendant
the lie detector indicated he was lying; this was error deliberately committed by the
prosecutor at a crucial point in the case; trial court instructed jury to disregard the
references to a lie detector; held, under the circumstances the instruction to
disregard was "'no antidote for the poison which had been injected into the minds of
the jurors'"].)
EXCLUSION OF PRIOR TESTIMONY OF MARK FUHRMAN
Mark Fuhrman, a police officer who had been a prosecution witness at
Simpson's prior criminal trial, was unavailable as a witness for this trial. Simpson
desired to introduce into evidence, in the present civil trial, portions of prior
testimony given by Fuhrman in the criminal trial. Simpson claimed that Evidence
Code section 1292 authorized the admission of Fuhrman's prior testimony. The trial
court ruled that section 1292 did not apply, therefore Fuhrman's prior testimony was
not admissible..35
On appeal, Simpson contends the trial court erred. He also contends that
plaintiffs waived objection to the introduction of Fuhrman's prior testimony by
failing to object before the jury voir dire.
There is no merit to these contentions. Evidence Code section 1292 did not
permit introduction of Fuhrman's prior testimony, because plaintiffs had no
opportunity to cross-examine Fuhrman, and the prior direct examination of Fuhrman
by the prosecution in the criminal case was not a substitute for plaintiffs' right to
cross-examine in the present case. Furthermore, plaintiffs' objection was not too
late.
Evidence Code Section 1292
Evidence Code section 1292, subdivision (a) provides: "Evidence of former
testimony is not made inadmissible by the hearsay rule if: [¶] (1) The declarant is
unavailable as a witness; [¶] (2) The former testimony is offered in a civil action;
and [¶] (3) The issue is such that the party to the action or proceeding in which the
former testimony was given had the right and opportunity to cross-examine the
declarant with an interest and motive similar to that which the party against whom
the testimony is offered has at the hearing." (Italics added.)
This section "provides a hearsay exception for former testimony given at the
former proceeding by a person who is now unavailable as a witness when such
former testimony is offered against a person who was not a party to the former
proceeding but whose motive for cross-examination is similar to that of a person
who had the right and opportunity to cross-examine the declarant when the former
testimony was given. . . . [¶] . . . The trustworthiness of the former testimony is
sufficiently guaranteed because the former adverse party had the right and
.36
opportunity to cross-examine the declarant with an interest and motive similar to
that of the present adverse party. Although the party against whom the former
testimony is offered did not himself have an opportunity to cross-examine the
witness on the former occasion, it can be generally assumed that most prior cross-examination
is adequate if the same stakes are involved." (Assem. Com. on
Judiciary, com. on Assem. Bill No. 333 (1965 Reg. Sess.) reprinted at 29B pt. 4
West's Ann. Evid. Code (1995 ed.) foll. § 1292, p. 392, italics added; 7 Cal. Law
Revision Com. Rep. (1965) p. 253.)7
As these terms apply here, the parties to the prior proceeding were Simpson,
as the criminal defendant, and the People of the State of California, represented by
the District Attorney of Los Angeles County, as the criminal prosecutor. The
former testimony of Fuhrman in the criminal trial was offered in the present civil
trial by Simpson, the civil defendant, against Sharon Rufo, Fredric Goldman, and the
representatives of the estates of Ronald and Nicole, the present civil plaintiffs, none
of whom was a party to the prior criminal proceeding.
The trial court reasoned that the prosecution in the prior criminal trial did not
"cross-examine" Fuhrman at all, but rather directly examined him as a prosecution
witness. It stated: "The precise language of section 1292 states 'cross-examine.'
Section 1291 of the Evidence Code allows former testimony to be used against the
[same] party that offered it in the prior proceedings, or that party's successor in
interest [8] . . . . The legislative history notes the distinct language of both section[s]
7 The Law Revision Commission and legislative committee comments to the Evidence
Code are particularly valuable in construing the code. (1 Witkin, Cal. Evidence (4th ed.
2000) Introduction, § 16, pp. 25-26.)
8 Evidence Code section 1291, to which the court referred, provides that "(a) Evidence of
former testimony is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and: [¶] (1) The former testimony is offered against a person
.37
1291 and 1292, but the legislature in section 1292 made no provision for admission
[against the present party] of . . . prior testimony offered by the [different] party in
the prior proceeding . . . . [¶] The term 'cross-examination' is a defined term in the
Evidence Code. Section 761 defines it as 'the examination of a witness by a party
other than the direct examiner.' The legislature is presumed to know what i[s]
included in its own enactments, particularly when it defines the terms it used in that
same enactment. [¶] Federal Rule of Evidence section 804(b)(1) allows prior
testimony where there was opportunity to 'develop the testimony [by] direct, cross,
or [re-]direct examination,' . . . which distinguishes its scope from Evidence Code
section 1292." (Italics added.)
The trial court added, "Plaintiff has no interest in offering Mr. Fuhrman as a
witness. Plaintiff has established the circumstances of the discovery and collection
of the Rockingham glove by testimony of percipient witnesses, and independent of
Mr. Fuhrman. Defendant has no apparent need for Mr. Fuhrman's testimony other
than to show his alleged bias against defendant, and is not offering Mr. Fuhrman's
testimony for any evidentiary purpose other than to discredit him as a witness."
The trial court's ruling was consistent with both the letter and spirit of section
1292. As the court noted, the official comments draw distinctions between sections
1291 and 1292. According to the comments, section 1291, subdivision (a)(1)
who offered it in evidence in his own behalf on the former occasion or against the
successor in interest of such person . . . ." (Italics added.) The comment to this section
explains that it "provides for admission of former testimony if it is offered against the
party who offered it in the previous proceeding. Since the witness is no longer available
to testify, the party's previous direct and redirect examination should be considered an
adequate substitute for his present right to cross-examine the declarant." (Assem. Com.
on Judiciary, com. on Assem. Bill No. 333 (1965 Reg. Sess.) reprinted at 29B pt. 4
West's Ann. Evid. Code (1995 ed.) foll. § 1291, p. 372, italics added; 7 Cal. Law
Revision Com. Rep., supra, p. 251.)
.38
allows admission against a party in the present proceeding of prior testimony that
the same party previously offered on its own behalf in the prior proceeding by way
of direct and redirect examination. Section 1292, subdivision (a) allows admission
against a party in the present proceeding, who was not a party to the prior
proceeding, of prior testimony that a different party having a similar interest and
motive adverse to the testimony tested for truthfulness by cross-examination.
Section 1291 does not apply, because plaintiffs were not parties to the prior criminal
proceeding nor are they successors in interest to the People. Section 1292 does not
apply, because the People in the prior criminal proceeding were not adverse to and
did not cross-examine in the prior testimony of Fuhrman. The trial court correctly
excluded the prior testimony because section 1292 makes no provision for it in the
circumstances here.9
Because there was no prior adverse cross-examination within the meaning of
section 1292, it is irrelevant whether, as Simpson claims, the People in the criminal
proceeding and plaintiffs in this proceeding had the same general interest in
attempting to prove that Simpson committed the crimes. But the trial court's
additional comments point out the incongruities in Simpson's position and why
exclusion was also consistent with the spirit of section 1292. Similarity of interests
and motive depends on practical considerations, not merely the similar position of
the parties in the two cases. (Gatton v. A.P. Green Services, Inc. (1998) 64
9 Moore v. American United Life Ins. Co. (1984) 150 Cal.App.3d 610, 628-629, cited by
Simpson as authority for more broadly construing section 1292, does not support
him. There the court held that the requirement of prior cross-examination by a party
having a similar interest and motive was satisfied by the cross-examination of a claimant
by a workers' compensation judge in an administrative proceeding. The court did not
dispense with the cross-examination requirement, it only extended the concept of a party
to include a workers' compensation judge.
.39
Cal.App.4th 688, 692.) Plaintiffs were not relying on Fuhrman in their case;
Simpson's offer of prior testimony of Fuhrman attempted, in effect, to compel
plaintiffs involuntarily to rely upon Fuhrman so that Simpson could then impeach
Fuhrman. Unless the strict conditions of section 1292 are satisfied, the party in the
second proceeding (plaintiffs) should not be bound by the manner in which the other
party in the prior proceeding (the prosecution) presented its case. (Id. at p. 693.)
Furthermore, the basic theory supporting this hearsay exception is that former
testimony subjected to cross-examination to test its credibility is reliable and
trustworthy. (1 Witkin, Cal. Evidence, supra, Hearsay, § 255, p. 973.) Simpson
did not desire the prior testimony to prove that Fuhrman recovered evidence, but
rather to suggest by proposed impeaching evidence that he planted it.
Timeliness of Objection
The trial court's ruling that Fuhrman's prior testimony was inadmissible
followed upon its earlier ruling on the motion of Goldman's counsel to preclude
Simpson's counsel from referring to it in his pretrial opening statement to the jury.
At the time of the ruling precluding Simpson's counsel from referring to
Fuhrman's prior testimony in the opening statement, October 1996, Simpson's
counsel complained that the motion was too late. Simpson's counsel argued that
Goldman's counsel should have raised objection earlier, by way of a motion in
limine in August 1996, prior to the voir dire of potential jurors. He contended that
in the absence of an earlier motion in limine, counsel had extensively questioned
potential jurors on the subject of Mark Fuhrman, and he contended Simpson would
suffer prejudice if evidence from Fuhrman was not forthcoming. He argued
.40
Goldman's motion to preclude the reference in opening statement should be denied
as untimely.
The trial court rejected these arguments. In its formal ruling on admissibility
the trial court expressly addressed the timeliness of Goldman's objection as follows:
"Plaintiff gave Defendant sufficient notice of his objection to the use of Fuhrman's
prior testimony under Evidence Code section 1292 and [Fuhrman's] conviction of
perjury prior to [the] opening statement. And the Court had reserved ruling on this
issue pending further briefing. The fact that this issue was not raised prior to the
deadline for motions in limine, it is excused by this Court, finding it excusable, in
view of the unsettled status of Fuhrman's potential availability as a witness at the
time because of [his] then pending criminal proceedings and plea of nolo contendere
therein, and that the Defendant is not presently prejudiced because Defendant had
ample time to prepare, since October 21, 1996, when this present motion was filed,
it now being November 18."
On appeal Simpson contends, "Of course, the Plaintiffs were well aware as of
the commencement of the trial that Fuhrman would not appear at the trial and that
therefore, Simpson would have to rely exclusively on his former testimony at the
criminal trial." This contention is contradicted by the trial court's findings. The
court found, consistent with the record during the earlier pretrial proceedings, that as
late as October 1996 there still existed the possibility Fuhrman would appear
voluntarily and testify. A ruling on a pretrial motion in limine is necessarily
tentative because subsequent evidentiary developments may change the context.
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1174 [in limine ruling is necessarily
tentative because trial court retains discretion to make a different ruling as the
evidence unfolds]; People v. Morris (1991) 53 Cal.3d 152, 189-190 [subsequent
events in trial may change the context and require a renewed objection].) Ordinarily
.41
the opponent of evidence need not object until the evidence is introduced. A pretrial
motion in limine is merely an additional protective device for the opponent of the
evidence, to prevent the proponent from even mentioning potentially prejudicial
evidence to the jury. (Abbett Electric Corp. v. Sullwold (1987) 193 Cal.App.3d
708, 715.) Simpson's argument that the failure to make an earlier motion in limine
waives raising the objection later in the trial turns that rule on its head. Simpson
appears to rely on a theory of equitable estoppel, but the record here does not
support it. As the trial court found, plaintiffs did not mislead Simpson's counsel that
they had no objection under Evidence Code section 1292. Simpson's counsel could
not reasonably rely on plaintiff's mere failure to make a motion in limine at the early
pretrial stage, before it was even determined whether Fuhrman might actually
appear in court. Simpson did not suffer any significant prejudice from the supposed
reliance, where only the voir dire was affected and the issue was resolved before
opening statements were given. (Cf. Alef v. Alta Bates Hospital (1992) 5
Cal.App.4th 208, 219.)
EXCLUSION OF EXPERT TESTIMONY ON
LABORATORY VALIDATION STUDIES
Simpson contends the trial court erred in excluding certain portions of
proposed testimony by an expert witness for the defense regarding DNA testing.
We conclude the trial court properly excluded this evidence as irrelevant.
Prior to trial Goldman filed a motion in limine to exclude certain testimony by
defense expert Dr. John Gerdes. Goldman expected Gerdes to offer to testify: that
he reviewed certain validation studies performed at the Los Angeles Police
Department Scientific Investigations Division (SID) between May 1993 and August
.42
1994; that in his opinion these studies indicated a pattern of additional alleles
showing up in the typing of reference samples pursuant to the DQ alpha dot blot
system;10 that in his opinion the presence of additional alleles in the results indicated
something wrong, which could be due to various procedural errors, including
contamination of the samples with extraneous human DNA; that in his opinion the
validation data indicated a chronic and persistent contamination problem at SID
during the period covered by the validation studies. Goldman argued that Gerdes
did not find evidence of contamination in the samples from this case, only possible
contamination in validation studies conducted on non-casework samples for the
purpose of testing laboratory proficiency. He contended that in the absence of
evidence of contamination in this case, the proposed expert opinion about
contamination in validation studies offered only speculation of contamination in this
case and should be excluded under Evidence Code section 352 because its minimal
probative value was outweighed by a substantial danger of causing prejudice to
plaintiffs, confusing the jury, and consuming undue time. (Fn. 2, ante.)
In opposition to the in limine motion, Simpson argued the motion was
premature. He contended the court should delay deciding until all the plaintiffs'
scientific evidence was in, so that the court could then understand the complex
scientific context and implications of potential contamination.
The court denied Goldman's pretrial motion in limine. The court indicated
that although Gerdes's proposed testimony did not relate to the samples in this case
but only validation studies, it might prove to be relevant to the weight of the
evidence.
10 An allele is a segment of DNA at a particular location on a chromosome. Alleles are
inherited in pairs, one from the father and one from the mother.
.43
Later during the trial, after the presentation of plaintiffs' scientific evidence,
Goldman renewed his motion to exclude Gerdes's testimony about the validation
studies. Goldman argued that two developments which had since occurred at the
trial now made the proposed testimony altogether irrelevant. Goldman argued that
in the opening statement to the jury by Simpson's counsel, "defendant has
acknowledged that his contamination defense is premised not upon alleged
contamination that took place during the DNA testing process performed by SID in
the laboratory, but rather upon contamination allegedly occurring during the
so-called 'sampling' procedure where portions of the evidence swatches to be tested
were removed from bindles in the Evidence Processing Room."11 Goldman asserted
the reason Simpson had framed the contamination defense in this manner was that
two other laboratories, the California Department of Justice and Cellmark, had
reached the same results as SID on other sample swatches, thus "in order to account
for the incriminating DOJ and Cellmark results, defendant must argue that the
contamination occurred in the Evidence Processing Room, the only place where all
of the evidence swatches could be affected." Goldman argued that "by framing the
contamination defense as he has, defendant has now made clear that Dr. Gerdes'
contamination theory has absolutely nothing whatsoever to do with this case. Dr.
Gerdes studied DNA testing done by SID in connection with its validation of the
11 In the defense opening statement to the jury Simpson's counsel stated, "The evidence
will be, ladies and gentlemen, that the day of [June] 14th [1994] Collin Yamauchi is
processing OJ Simpson's reference blood. Now, you will hear from experts that you
don't process reference blood first, you process reference blood last. And the reason you
do that is because reference blood taken out of Mr. Simpson's arm is so rich in DNA, that
if it spills, it can contaminate everything and ruin all of the evidence that you have there.
And so on the 14th, Collin Yamauchi takes the top off of the vial of Mr. Simpson's blood
and spills it. And spills it on his hand, on a Chem Wipe. And you will hear that that spill
can contaminate every piece of evidence in this case. It is because they process the
evidence in the same place, in the same location."