September 22, 1995
JIM MORET, Anchor: Thank you, Deborah. Court is in session. The jurors are being brought into the courtroom. Just prior to that, the attorneys on both sides hammered out the final jury instructions, which will be delivered in a matter of minutes. The judge has denied a defense request for an acquittal, and perhaps most importantly, just a few minutes ago, O.J. Simpson stood and spoke on his own behalf, outside the presence of the jurors.
Judge LANCE ITO, Los Angeles Superior Court: Mr. Simpson, good morning, sir.
O.J. SIMPSON, Defendant: Good morning, Your Honor. As much as I would like to address some of the misrepresentations made about myself, and Nicole, concerning our life together, I'm mindful of the mood and the stamina of this jury. I have confidence, a lot more it seems than Ms. Clark has, of their integrity, and that they will find, as the record stands now, that I did not, could not, 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?'
Judge LANCE ITO: All right-
O.J. SIMPSON: `When will this trial be over?' Thank you.
Judge LANCE ITO: All right, Mr. Simpson, you do understand your right to testify as a witness?
O.J. SIMPSON: Yes, I do.
Judge LANCE ITO: All right, and you choose to rest your case at this-
O.J. SIMPSON: -I do.
Judge LANCE ITO: All right, thank you very much, sir.
JIM MORET: The jurors are once again seated in the courtroom. The defense and prosecution have formally rested their cases. Judge Ito is now addressing the jurors.
Judge LANCE ITO: -And we will hear the arguments of the attorneys, and that will commence on Tuesday, September the 25th, on Monday, September the 25th, I will be hear 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 9:00, 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 9:00 in the evening. It's 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 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 seeing- I've seen eight nods affirmative, I see smiles, everybody? [laughter] Well, we have one unanimous decision, already. [laughter] All right, then, this is also subject- I also, 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 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 an affirmative answer, I will pursue that this afternoon.
All right, ladies and gentlemen of the jury, you have heard all- excuse me, I'm sorry, and Deputy Bashmakian [sp], now that I'm starting the instructions, nobody is to enter or leave the courtroom during the court's instructions.
All right, 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 facts 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 were instructed to include with 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 than 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 attorney has 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 12 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 non-existence of a fact. Evidence is either direct or circumstantial.
Judge LANCE ITO, Los Angeles Superior Court: [in progress] - 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 proof 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 proof 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 crimes 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 it's 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 a 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 reporters 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 tape statement, which is People's exhibit 615, which may include statements 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's former testimony. If you disbelieve a witness testimony that he or she no longer remember 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 and reason to prove or disprove the truthfulness or 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 affects, if any from the use of consumption of alcohol, drugs or other intoxicants, 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 of nonexistence of a biased interest or other motive. Evidence of the existence or non-existence 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's 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 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 it's 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 has willfully testified falsely as to a material point. Unless, from all the evidence, you believe the probability of truth favors his or her testimony and other particulars.
You are not bound to decide an issue of fact in accordance with 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 and 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.
Judge LANCE ITO, Los Angeles Superior Court: [in progress] You may disregard anything that you find 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 to determine the effect of that failure of proof on the value and weight of the expert opinion based on the assumed facts. In resolving any conflict that may exist in the testimony of expert witnesses, you should 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 to 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 and 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 find any item of evidence does not have a tendency and reason to prove any element of the crime's charge or the identity of perpetrator of such- of the crime's charge, you must disregard such evidence.
You have heard testimony about frequency estimates calculated for matches between known reference blood samples and some of the blood stain 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 blood stain testing results. Frequency estimates and laboratory errors are different phenomena. Both should be considered in determining what significance to attach to blood stain 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 considered [sic] 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 charge. 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 defenses, 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 identify of 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 evidence- 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 instructions, 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 crimes or crimes [sic]. 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 bear upon- 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 guilty. 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 be compelled to testify. You must not draw any inference from the fact that a defendant does not testify.
Judge LANCE ITO, Los Angeles Superior Court: [in progress] - A defendant in a criminal trial has a right not to testify. You must not draw any inference from this matter. Further, you must not consider it in any way.
In deciding whether or not 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 and 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 minds 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 crimes. 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 Courts One and Two, 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 to specific intent to kill, known as expressed malice. The crime of Murder in the First Degree requires the specific intent to kill, known as expressed 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 Courts One and Two or the crime of Second Degree Murder, which is a lesser crime, unless the proved circumstances are not only 1) consistent with the theory that the defendant had the required specific intent or mental state, but 2) 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 the other 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 significant 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 Courts One and Two of 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. 1) a human being was killed, 2) the killing was unlawful, and 3) the killing was done with malice aforethought.
Expressed 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 expressed malice, no other mental state need be shown to establish the mental state of malice aforethought does not necessarily require any ill will or hatred of the person killed. The word, `aforethought' does not imply deliberation of 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 world, `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 of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is Murder of the First Degree.
Judge LANCE ITO, Los Angeles Superior Court: [in progress] - with 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 includes 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 killer was weight 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 guilt of murder, you must determine and state in your verdict, whether you first 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 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 of Murder of the Second Degree.
If you find the defendant in this case guilty of Murder in the First Degree, you must then determine the following special circumstances- 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 in 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 murders 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 1) consistent with the theory that a special circumstance is true, but 2) 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 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 find 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 One and Two, 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 Courts One and Two that in the commission of the crime charged, the defendant personally used a deadly or dangerous weapon. If you find such defendant 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 of 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's an interesting date, because if you'll 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 amongst 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- I'm sorry.
JOHNNIE COCHRAN, Simpson Defense Attorney: May we approach, Your Honor?
Judge LANCE ITO: Yes.
JIM MORET, Anchor: Let's bring in our legal analysts, Roger Cossack and Greta Van Susteren in our Washington studios. Roger, anything that struck you as being unusual in those instructions? Clearly it was primarily what the prosecution had intended to be read, but the judge did make some modifications.
ROGER COSSACK, Criminal Defense Attorney: Jim, that is exactly- If there's one thing that our viewers should know is that is exactly how jury instructions sound and that is exactly how they're delivered to the jury, in all- in every trial that I've ever seen. And I must tell you, I have sat and listened to these today, and I sat and listened to jurors being told these jury instructions many, many times in my life, and I- I must tell you, I wonder how much of this is understood and how much of this is listened to and- and how much of this gets through.
JIM MORET: Greta, it is clearly, from a lay person's standpoint, it sounds very, very technical, all of these descriptions on what a crime consists of and what you must do and what you may not do. Do you- do you think, as Roger suggests, that these things are not clearly understood by jurors?
GRETA VAN SUSTEREN: Well, I- Probably, Jim. And I'm sure their heads are spinning because it's sort of- the judge just rattles it off at them. But they'll have an opportunity to go over the jury instructions. Many judges send them back in with the jury or if they have a question, they can write a note to the judge, you know `We'd like to be re-instructed on a particular area of the law.' So, it may be overwhelming at this point, but I- You know, jurors have been doing it for a hundred- hundreds of years, they've been following instructions. So I have confidence that in this particular case they can follow the instructions as well.
JIM MORET: But, Roger, haven't there in the past been successful appeals based upon incorrect jury instructions being given to a jury?
ROGER COSSACK: Oh, absolutely. As a matter of fact, I think the majority of appeals are granted because of a defect in the jury instructions, one that was either failed to be- that the judge failed to give or one that was perhaps misworded and said something that it shouldn't. I can tell you this - if there is one change - maybe this is my own little stickler - that I would like to be seen- I would like to see be done in criminal trials it would be to have somehow make these jury instructions more understandable.
Judge LANCE ITO, Los Angeles Superior Court: All right. Ladies and gentlemen, the attorneys brought to my attention that I misread two of these instructions to you, so I'm going to reread them to you in their correct form. And they'll be brief.
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 12 jurors are present in the jury room.
One additional that I misread to you - 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 videotaped 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 the 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's 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.
All right. Ladies and gentlemen, that concludes the reading of the preliminary instructions to you. After the attorneys finish their arguments, I do have some concluding instructions to you that are very brief. Remember my admonitions to you. [coughs] Excuse me. Please have a pleasant weekend, and we'll see you back here on Tuesday morning 9:00. All right. We'll stand in recess.
BAILIFF: Please clear the courtroom.
JIM MORET: Judge Lance Ito took just over 40 minutes to read the jury instructions. Prior to the jury being brought into the court, however, O.J. Simpson, over the objections of Marcia Clark, gave a rather unusual statement to the court.
[taped excerpt of earlier proceedings]
O.J. SIMPSON, Defendant: Good morning, Your Honor. As much as I would like to address some of the misrepresentations made about myself and my- Nicole concerning our life together, I'm mindful of the mood and the stamina of this jury, a jury I have confidence - a lot more it seems than Ms. 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?'
Judge LANCE ITO: All right.
O.J. SIMPSON: I want this trial over.
Judge LANCE ITO: All right.
O.J. SIMPSON: Thank you.
Judge LANCE ITO: All right. Mr. Simpson, you do understand your right to testify as a witness?
O.J. SIMPSON: Yes, I do.
Judge LANCE ITO: All right. And you choose to rest your case at this point?
O.J. SIMPSON: I do.
Judge LANCE ITO: All right. Thank you very much, sir.
[end of taped excerpt]
JIM MORET: Greta Van Susteren, Marcia Clark was adamant in her view that O.J. Simpson should not be allowed to say anything unless he is subject to cross- examination. She said that this statement was totally inappropriate, but the judge apparently did not agree with her.
GRETA VAN SUSTEREN: It's not inappropriate. If the judge wants to talk to an accused, the judge can do it. I think what Marcia Clark is really worried about - and it's a legitimate concern - is that somehow his statement will filter back to the jury. You know, everyone talks about these conjugal visits, and unfortunately, Marcia Clark fears that that is going to produce some sort of poisoning of the jury. However, you know, I- You know, maybe I'm naive, but I have complete confidence in the jury system and in these jurors and they'll do the right thing, and I do hope that they aren't being poisoned, that people aren't leaking things to them because that would certainly be an injustice to the State and to O.J. Simpson.
ROGER COSSACK: Jim, I think-
JIM MORET: Roger, what was your sense of the judge allowing O.J. Simpson to make that statement?
ROGER COSSACK: I think it was inappropriate, and risking the wrath of my colleague here, I think that, in fact, what this, all this, was really all about was to get him to be- stand up and make some statement that absolutely they, the defense team, hopes will get back to the jury. I think the answer to the question is - do you understand that you are resting and you are not going to take the defense- take the witness stand, and have you talked it over with your lawyers, and do you agree - is either yes or no. It's not a one-minute statement, and I think Marcia Clark has every right to be upset about it. How important it is? Who knows? But I think that this was not the time. You want to testify? You got something to say? Get right up on the witness stand.
GRETA VAN SUSTEREN: You know, though, Jim, it wasn't testimony. It was Judge Ito asking this man a question. This man - he at this very moment is presumed innocent. And that man has not said a word in almost a year in that courtroom, and if Judge Ito wants to talk to him, Judge Ito can do that. Judge Ito could cut him off if he wanted to, and so there really is no harm unless it somehow leaks to the jury. That would be wrong, but to let this man speak at the moment when he is still presumed innocent certainly is permissible, and I don't think there's any problem with it.
ROGER COSSACK: You know, he could have spoke [sic] a whole lot longer than that. If he wanted to get up and take the witness stand, he could have told everybody everything. If he doesn't want to take the witness stand, which I support his right not to, then you just don't get a chance to speak. That's the way it is.
GRETA VAN SUSTEREN: That's entirely- That's an entirely different issue. That is if this man is speaking to the factfinders, to the jury, and he was not speaking to the factfinders, to the jury. He was answering the judge's question.
ROGER COSSACK: Sure, he was speaking to the jury, is who he was speaking to.
GRETA VAN SUSTEREN: He was speaking to Judge Ito.
ROGER COSSACK: He was speaking to the public out there in hopes that the jury would hear about it.
GRETA VAN SUSTEREN: You know-
JIM MORET: Wait. I'm gonna- I'm gonna throw in my towel and say we have to take a break, but we will be back with more right after this.
JIM MORET, Anchor: That news conference is about to begin and we can see the defense team beginning to assemble around the microphone on the first floor of the Criminal Courts Building. Judge Lance Ito has dismissed the jurors for the weekend. Let's now take you- Johnnie Cochran is at the microphone, about to start this news conference. You could see the entire defense team, except for Robert Shapiro, appear to be around the microphone.
JOHNNIE COCHRAN, Simpson Attorney: -we thought we'd come down to answer just a few questions and to indicate to you that my colleagues and I, we started out as a team, we end up as a team. We feel very, very strongly in the presentation we've made in this case. We feel we've shown that this is an innocent man wrongfully accused. I think a lot of people now understand that. This case was not about Mark Fuhrman, it's always been about O.J. Simpson and we felt he was wrongfully accused and a rush to judgment by this prosecution and they had an obsession to win. And I think we've shown that we're ready now for argument, we think very, very strongly and we applaud the judge's reconsideration of the fact that we should be able to argue next week, and finish this case next week. If you saw our jurors today, you saw that when he asked about the possibility of going late and finishing this case and getting it to him as soon as possible, they all uniformly, all fourteen said yes. That's what we want, and that's what they deserve. The case is about them now, and about them, they're the ones who made the sacrifices, so let's get this on. We want to get it on.
1st REPORTER: What's unprecedented that Mr. Simpson was allowed to speak, which really angered Ms. Clark.
JOHNNIE COCHRAN: We're not worried about angering Ms. Clark, we're worrying about the fact that Mr. Simpson has been in custody since June 17th for charges he's always denied. He never got a chance to say anything really, except at the arraignment, and until today. They wanted to know about his waiver, he had a right to do that. They always want to stop everybody from talking. What's wrong with the search for truth.
JOHNNIE COCHRAN: The judge wanted to take a waiver from him, and so that was it.
2nd REPORTER: Once and for all can you just explain why Simpson did not take the stand, now that the final decision is made.
JOHNNIE COCHRAN: I can just indicate this, that all of us thought about this, and I think you saw in the emotion in his voice, the prosecution should be glad O.J. Simpson didn't take the stand. He is a compelling and outstanding witness, but in this courtroom, at this time, the examination of O.J. Simpson would have gone on forever. It wasn't just that he would stand up and say, `I didn't commit these crimes.' As he said today. It would be everything that he ever did in his life. It would be ridiculous. We don't want to put him through that.
3rd REPORTER: Is it true he didn't do well when you did a mock run-through-
JOHNNIE COCHRAN: That's very untrue, that's very untrue. He is a compelling witness, you saw him today. He's compelling just like that, all the time. What you saw today, what you saw other times before that jury, is the way O.J. Simpson is. He's emotional, he feels strongly about this, but it wouldn't have been just getting up there and answering that Dan and Kristin, it would have been, here - Marcia would have kept him up there forever, and that would have been unfair.
JOHNNIE COCHRAN: No, no, he was speaking from his heart.
4th REPORTER: Marcia Clark says it was an obvious ploy to get this information, Mr. Simpson's remarks in front of the jury [unintelligible]-
JOHNNIE COCHRAN: No, not at all, I mean, I tend to believe, we have a lot more confidence in the jury than the prosecution has from the beginning. I don't think that anything gets to this jury, or future juries. I think, the judge asked Mr. Simpson a question. In America, if somebody asks you a question, you have a right to respond. He responded. So that's the big deal, you finally got a chance to hear how he felt. Some of you must know how he felt, and you heard it today, all of America heard it today. And that jury would have heard it, and they're lucky he didn't testify. I'm telling you that.
5th REPORTER: Are you saying that that statement was completely extemporaneous. He hadn't prepared that at all?
JOHNNIE COCHRAN: Yes, he- you'd have to ask him, but I don't think so. I think he, at the moment he stood up, he was very emotional. You think he prepared the fact that when he started talking about his children, he became tearful, or that his daughter broke down and started crying. That was spontaneous. Because it's very emotional. When you've been in custody for this long for a crime you maintain you didn't commit. You never got a chance to talk, you got a chance to say something today. You've seen all these things happen to you, it's pretty hard, think about it.
6th REPORTER: --is he scared or nervous or what?
JOHNNIE COCHRAN: No, he's not scared. He's looking forward to this jury, he's looking forward to being acquitted. He wants to go home to his children.
7th REPORTER: -now you're at this juncture, you're at the end. How do you all feel, as a team?
JOHNNIE COCHRAN: We feel very emotional, let me ask my team members, let's ask Barry Scheck, Barry how do we feel? How do we feel, how do we feel?
8th REPORTER: Are you alone going to do the closing arguments?
JOHNNIE COCHRAN: We're going to talk about that, we're going to try to be as succinct as possible. We want this over with. We want to be reasonable. There are a lot of things we have to say though. There's a lot on our hearts. You think he was emotional, you wait till next week.
9th REPORTER: When you give the close, is there any restriction on the number of attorneys or does that still have to be worked out.
JOHNNIE COCHRAN: No, I think all of us want to say something actually so- no, I think it'll be two of us probably.
10th REPORTER: Which two?
JOHNNIE COCHRAN: You'll have to wait until Tuesday to see that.
11th REPORTER: Would we be wrong if we said it was going to be Mr. Scheck and you? Are his initials, B.S.?
JOHNNIE COCHRAN: We don't use those kinds of initials, right, B.C.S. right. So good. Thank you guys, we've had a lot to talk about over the course of the last year, and we just wanted to come down and say thank you. We know you have tough jobs and our job has been tough, we thank you for the times you've been fair, when you haven't been fair, we've talked about that also. So, it's been quite an association and it's kind of befitting that one year from the time we met these folks, this case will be, we'll be arguing the case to them next week.
12th REPORTER: How important are closing arguments in the grand scheme of things.
JOHNNIE COCHRAN: It's going to be very important, very important.
13th REPORTER: Are you worried about keeping the jury's attention all the way till eight or nine at night, during the closing-
JOHNNIE COCHRAN: Oh, I think you're going to find we'll be able to keep their attention. We have a lot to say. Thank you all very much, we'll see ya'-
JIM MORET: You heard Johnnie Cochran reiterate the defense themes of a rush to judgment and a man wrongly accused. He said that O.J. Simpson was not scared and nervous about the jury getting this case. He's looking forward to being acquitted and going home to his children, and he thought that it was fitting that the closing arguments will begin, one year to the day when this jury was first brought in for the process of selection. Let's check in with our legal analysts, Greta Van Susteren, Roger Cossack. What, in your view is the purpose of this news conference?
ROGER COSSACK, Criminal Defense Attorney: Well, I think that there's a couple of things that are interesting but, clearly I think they wanted to show that the defense team was united, that they were glad it was over and sort of put their best foot forward. But interestingly enough, where was Robert Shapiro on this team, on this united team, and where's F. Lee Bailey? Bailey, perhaps we can understand, but Shapiro was there first. So, I thought his not being there was an interesting statement.
JIM MORET: One of the reporters apparently asked Johnnie Cochran that, and he indicated that he believed that Robert Shapiro was still in lock-up with O.J. Simpson, that is a room that he's kept in before going back to the men's central jail.
Greta Van Susteren, anything unusual in your view, about this news conference? It was clearly an attempt to display unity among the defense team.
GRETA VAN SUSTEREN, Trial Attorney: Well, you could also tell their tone of voice. They seem rather jubilant and I think that would probably be true of the prosecution team as well, because I'll tell you, trials are exhausting. And when you get down to the end, you feel sort of an emotional high, you're so glad it's finally coming to an end, and I think you see a lot of that in their tone of voice. You know, this is a big time for them. You know the most important part of a trial for the lawyer, not necessarily for the defendant, but for the lawyer is about to come up because this is a time when the lawyer does what he or she went to law school for and that's to stand before the people and to argue his or her position, to try to persuade the jury to render a verdict favorable to that particular side.
JIM MORET: And Roger, basically, when Johnnie Cochran was talking about lawyers divvying up responsibilities, he indicated that there would be two lawyers from the defense camp. Any guess on who that might be? You certainly would expect to see Johnnie Cochran as one of those attorneys.
ROGER COSSACK: Yeah, that's an interesting question, let me- I think that you might see Barry Scheck speak to this jury, and that's just an off the, right off the top of my head guess.
JIM MORET: Thank you, Roger. Some programming notes. Please tune in to CNN tonight, 10:30 p.m. Eastern, 7:30 Pacific for a half-hour special recapping the week's developments in the Simpson trial and our live coverage of the Simpson trial resumes on Tuesday, at noon Eastern, 9:00 a.m. Pacific. That will be the first day for closing arguments.
I'm Jim Moret in Los Angeles.
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