SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PEOPLE OF THE STATE OF CALIFORNIA,
ORENTHAL JAMES SIMPSON, aka O.J. SIMPSON
CASE NO. BA 097211
DEFENDANT'S MEMORANDUM OF LAW RE POLICE INTERVIEW
TO THE HONORABLE LANCE A. ITO, JUDGE OF THE SUPERIOR COURT OF LOS
ANGELES COUNTY, AND TO THE DISTRICT ATTORNEY FOR THE COUNTY OF LOS
Defendant ORENTHAL JAMES SIMPSON, by and through his counsel of record,
respectfully submits the following Memorandum of Points and Authorities
in support re police interview.
MEMORANDUM OF POINTS AND AUTHORITIES
In the direct examination of Colin Yamauchi, Mr. Harmon, over defense
objection, elicited the following testimony:
"Like I was saying, I heard on the news, well, yeah, he's got an air-
tight alibi. He's in Chicago and, you know, that and it's his ex-wife
and this and that, and I go, oh, well, he's probably not related to the
The defense contends that the representation of this detached
declaration permits the admission of those portions of the defendant's
statement to police on the same subject of his alibi which are necessary
to make the detached declaration understood, pursuant to California
Evidence Code Section 356, which provides:
"Where part of an act, declaration, conversation, or writing is given in
evidence by one party, the whole on the same subject may be inquired
into by an adverse party; when a letter is read, the answer may be
given; and when a detached act, declaration, conversation, or writing is
given in evidence, any other act, declaration, conversation or writing
is necessary to make it understood may also be given in evidence."
Two things become immediately apparent from the statutory language.
First, the testimony that "opens the door" need not be an actual part of
the act, declaration, conversation or writing that is offered to make it
understood. Second, the "writing" offered to make it understood can
include a tape-recorded statement, California Evidence Code Section 250.
Thus, it makes no difference whether Colin Yamauchi was referring to
news reports or to the actual statement of the defendant. The fact
remains that an "airtight alibi" is attributed to the defendant:
"He's got an airtight alibi."
The impact upon the jury of leaving this testimony unexplained is
readily apparent. they are left to speculate why the alleged "airtight
alibi" has not been explained. Is it because it was false? Is it because
the defense got it suppressed? The correct answer, of course, is it's
because the prosecution made a tactical decision to keep it from the
jury. The whole purpose of Section 356 is to say to the prosecution,
"you can't have it both ways. You can't keep the defendant's exculpatory
statement from the jury, and still offer to the jury a detached and
misleading summary of the statement in the form, 'he's got an airtight
In any event, the source of the media speculation that Mr. Yamauchi
would have heard was clearly the defendant's statement. It was widely
reported that Attorney Howard Weitzman accompanied Mr. Simpson to Parker
Center after his return from Chicago, and Mr. Weitzman issued a
statement that Mr. Simpson was fully cooperating in his investigation.
The operative impact of Section 356 is not dependent upon the
identification of the source to which the witness attributes the
detached act, declaration, conversation, or writing. It was presented as
a claim by the defendant, so any other writing necessary to make that
claim understood may now be given in evidence.
The purpose of Section 356 is to preserve fair play when misleading
impressions are created. The misleading impression created by "He's got
an airtight alibi," without any further explanation, will be extremely
damaging to the defendant, because the jury will not show that the
defendant never claimed that he was in Chicago at the time the murders
were committed, and that his denial is completely consistent with the
testimony already elicited from numerous prosecution witnesses regarding
his activities in the evening in question.
A helpful illustration of the rule's application appears in Rosenberg v.
Wittleborn, 178 Cal.App.2d 846 (1960). A police officer testified that
the defendant told him he had the red light at the time an accident
occurred. The defendant was then permitted to elicit the full
explanation on cross-examination, which gave "a very different
"Plaintiff's attorney was trying to leave the jury with the impression
that defendant by way of admission had told the officer...that he
entered the intersection against the red light, -- that he said this and
no more. These statements were in fact so qualified when made to the
officer that they carried no implication (such as plaintiffs would have
the jury draw) that defendant ran the red light because he was going too
fast to stop within the distance he had available.
Here, to paraphrase Rosenberg v. Wittenborn, the defendant's statements
to the police were so qualified that they carried no implication of an
"airtight alibi," that the prosecution wants the jury to believe was
contrived. Considerations of fair play demand that the relevant portions
of the statement be admitted which will qualify and enlighten the true
nature of the defendant's explanation, which will present "a very
different complexion" than that conveyed by the testimony, "he's got an
The damage in the unexplained attribution of an "airtight alibi" to the
defendant by Colin Yamauchi is heightened by the jury's awareness
through Mr. Yamauchi's previous testimony that he had been "briefed" by
Dennis Fung with information from the homicide detective's
investigation. Some of this information, such as the fact the defendant
had a cut on the middle finger of his left hand, could only have come
from the examination of Mr. Simpson by Detectives at Parker Center.
Thus, his prior information about the case was not limited to news
Obviously, only the portions of the defendant's taped statement relating
to an alibi may be relevant but in applying the limitation of relevance,
two things are made clear by the opinion of the Court in People v.
Hamilton, 48 Cal.3d 1142, 1174 (1989): relevance must be placed in the
context of all of the testimony leading up to the statement "he's got an
airtight alibi," and the court should not draw "narrow lines" around the
exact subject of inquiry.
In Hamilton, a prosecution witness have a tape recorded statement
claiming the defendant told her he wanted his wife killed. On cross-
examination, the defense showed inconsistencies between the tape and a
transcript of the tape regarding the planning of the crime. Without
objection, the prosecution then had the entire tape played, revealing
additional statement's about the defendant's motive. The Court upheld
the admission of the entire tape under Evidence Code Section 356:
"In the questioning leading up to the playing of the taped confession,
defense counsel asked what defendant had told the witness prior to the
murder concerning the details of the planned crime. Defendant's
conversations with Carolyn, however, encompassed motive as well as plan,
and counsel's questions draw no clear distinction between the two
subjects. In applying Evidence Code Section 356, the court do not draw
narrow lines around the exact subject of inquiry. 'In the event a
statement admitted in evidence constitutes part of a conversation or
correspondence, the opponent is entitled to have played in evidence all
that was said or written by or to the declarant in the course of such
conversation or correspondence, provided the other statements have some
bearing upon, or connection with, the admission or declaration, in
evidence...' " 48 Cal.3d. at 1174
The test of relevancy presents more complexity in the context of two
different statements, if the first statement that "opens the door" is
independent and comprehensible. That was the rationale offered in People
v. Barrick, 33 Cal. 3d 115, 131-32 (1982) for excluding a distinct and
separate post-arrest interrogation after the prosecution elicited in
pre-arrest statement: "The post-arrest statement would also be
admissible if necessary to understand the earlier prearrest statement,
but in the present case the earlier statement is independently
comprehensible." 33 Cal.3d at 131, n.4. Here, of course, the statement
"he's got an airtight alibi" is hardly "independently comprehensible."
It raises a host of questions that can only be answered in the full
context of the defendant's statement explaining his movements on the
night of the homicide.
As a leading commentator on California Evidence noted in explaining the
operation of Section 356, "Whenever matters are taken out of context,
misleading impressions can be created." Mendez, California Evidence
Section 13.10, p.244 (1993) Section 356 exists "to diminish the risk."
That is all the defendant seeks to do. Considerations of fair play fully
justify the admission of the relevant portions of the defendant's
recorded statement which are necessary to make Mr. Yamauchi's detached
declaration, "he's got an airtight alibi," understood by the jury.
DATED: May 25, 1995
LAW OFFICES OF
JOHNNIE L. COCHRAN, JR.
By: /s/ Johnnie L. Cochran, Jr.
/s/ Carl E. Douglas
/s/ Shawn S. Chapman
/s/ Gerald F. Uleman
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