Date: 30 May 1995
Department 103
Hon. Lance A. Ito, Judge
Deirdre Robertson, Deputy Clerk
People v. Orenthal James Simpson
Case: BA097211
The Court has read and considered the prosecution's motion to admit various autopsy and crime scene photos, the response in opposition filed by the defense, the letter briefs filed by the prosecution dated 30 March 1995, 14 April 1995, and 16 May 1995, as well as the letter brief filed by the defense dated 12 May 1995. The court conducted an informal, hour long conference with counsel for the parties, and heard the argument of counsel on the record 19 May 1995(1). The court has spent 10 hours in chambers examining the photos in question.
The prosecution has presented to the court photos which may be categorized as follows:
The court must make two basic determinations as to each photograph: 1) Is the information offered by the photo relevant to the issues in the case? Evidence Code Section 350; 2) Is the probative value of the photo substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or misleading the jury. Evidence Code Section 352. In making this evaluation, it is important to note the nature of the issues to be resolved. In any criminal case the prosecution must prove two things: that a crime has been committed and that the defendant is a person legally responsible for that crime. The prosecution seeks to establish a general window of opportunity regarding the time of death, the manner ion which the lethal wounds were inflicted upon each victim, and whether the evidence is consistent with a single weapon and a single assailant. The defense has chosen to challenge the prosecution's case at each and every opportunity. During the course of opening statements, defense counsel raised many concerns about the performance of the physician who performed the autopsy examination(2), the Medical Examiner/Coroner criminalists at the scene(3), and the entire Office of the Medical Examiner/Coroner. The defense, in opening statements, criticized the Medical Examiner/Coroner for discarding the one of the victim's stomach contents, for failing to make a sexual assault examination, for its handling of clothing items, for failing to take samples of the blood drops on the back of one of the victims, for missing bruising to one of the victims' brain, etc. In a related motion the prosecution sought a ruling to limit the scope of certain anticipated cross-examination of Dr. Irwin L. Golden (Golden). The defense sought and was granted permission to cross-examine Golden as to mistakes made in other autopsies. The prosecution argues that as a matter of sound trial tactics they should seek to limit the potential damage to their medical evidence by bringing out the shortcomings of Goldens's performance in their direct examination, thereby demonstrating to the jury that the prosecution seeks only to present the truth, citing Evidence Code Section 785.
The court notes that the burden upon the prosecution to prove all elements of the charged crimes does not change whether or not contested. The prosecution, in order to achieve the sought after verdicts of first degree murder, must prove deliberate and premeditated killings with malice aforethought. This burden is substantial. The prosecution is proceeding on the theory that one physically superior assailant was able to overpower and slay both victims with the same sharp and pointed cutting weapon in a very short period of time.
6 crime scene photos, 4 of which have already been displayed to the jury as prosecution exhibits without objection, are offered by the prosecution. The defense letter brief of 12 May 1995 does not raise any specific objections to the crime scene photos. Nevertheless, the court must still review them:
CS2, also marked for identification as People's Exhibit 45, depicts the body of Nicole Brown Simpson (NBS) as it was discovered by the responding police officers. It is taken from across the street, looking westbound. The crime scene yellow tape is in place and there appears to by two police officers standing in the foliage to the south of NBS. The light source of the photo appears to be the ambient available light, giving the photo a yellowish hue, apparently from the sodium vapor street lamps. The court finds this to be relevant to establish the position of the body of NBS as it was discovered. It is not an extraordinary photo. The court finds the probative value to outweigh any potential prejudice.
CS6, also marked for identification as People's Exhibit 43, depicts the walkway at 875 S. Bundy Dr. leading up to the body of NBS. The photo is taken looking westbound from the sidewalk and depicts considerable blood flow down the condominium's front walkway, extending all the way onto the public sidewalk. The prosecution argues that it was necessary to show the blood flow to establish that since there was only one set of shoeprints leaving the scene, only one assailant could have been involved due to the single set of shoeprints and the amount of blood at the scene. The court finds the probative value to outweigh any potential prejudice.
CS11 is a close up of the body of NBS at the bottom of the stairs. It shows blood spatters on the right back and smears on the right outside thigh. It is similar but not identical to People's Exhibit 43 (c), 54 (4), and 220. Of interest is what appears to be a patterned shoeprint in the large amount of blood on the walkway approximately one foot to the east of the left hand. The prosecution proffer is that the large amount of blood and the patterned shoeprints in the blood explain the presence of the victim's blood in the carpeting of the defendant's Bronco automobile. The court finds the probative value to outweigh the prejudicial impact.
CS12, also marked as People's Exhibit 45 (b), is taken from above the body of NBS with one of the shoes of the photographer apparent standing on the second step. The photo depicts blood splatters on the back of NBS as well as a large amount of blood on the first step, what appears to be sprayed blood on the second step as well as what appears to be bloody shoeprints. The court finds the probative value to outweigh the prejudicial impact.
CS 39 depicts the wrist watch and the back of the left hand. It is difficult to determine the existence of any injury due to the large amount of blood. B 29 more clearly depicts the injuries to the left hand after the body had been washed off by the staff of the Medical Examiner/Coroner. CS 39 is redundant. The objection under Evidence Code Section 352 is sustained.
CS 40, also marked as People's Exhibit 220, depicts the back of the right hand. This appears to be the only photo of the back of the right hand. Autopsy Report 94-05136 at page 7 and Diagram 23 note injuries to the right hand. These injuries are not apparent to the court in viewing CS 40. The court takes under submission, pending a specific offer of proof, any determination as to CS 40.
B 1 depicts 4/5 of the clothed body of Ronald L. Goldman (RLG), from the head to approximately the knees. G2 depicts RLG from approximately mid-chest to the shoes. The prosecution argues these two photos are relevant to establish the condition of RLG's body when it was received at the offices of the Medical Examiner/Coroner. Both parties argue the importance of the pattern of bleeding on RLG's left leg(4). The court finds the probative value outweighs the prejudicial impact.
G 5 depicts the back of RLG from head to mid-calf and illustrates the relative position of the injury to the left flank. It includes abrasions to the left shoulder and radial aspect of the left hand and wrist which are unaddressed in Golden's original report. It also shows the lividity which figures in the time of death controversy. The court finds the probative value to outweigh the prejudicial impact. The court directs the prosecution to crop the photo at the point between the three and the five in the coroner case number to the right.
G 8 depicts the fatal stab wound to the left flank. Photo depiction appears necessary due to the controversy regarding whether a single or double edged weapon was used, i.e. whether there were one or two weapons(5). The court finds that the probative value outweighs the prejudicial impact. The prosecution is directed to crop the photo to delete the public hair.
G 10 depicts the right lower chest and side, including two fatal stab wounds to the lungs, a smaller non-fatal stab wound and what are described as post mortem abrasions. The photo is relevant to the nature of the wounds inflicted and the possible weapon used. The court finds the probative value outweighs the prejudicial impact.
G 17 depicts a stab wound to the left thigh. This wound is relevant to the bleeding pattern on RLG's left pant leg, which in turn provides information as to the nature of the struggle between RLG and his assailant, especially as to the duration of the struggle. The court finds the probative value to outweigh any prejudicial impact.
G 20 depicts an "interrupted " abrasion on the left arm. This is an irregularly shaped abrasion that has an interruption with regular contours. The photo includes a bruise or abrasion near the left elbow. Neither of these items are noted in Golden's original report. The photo is relevant to the nature of the struggle between RLG and his assailant. This photo does not seem extraordinary in the context in which it is being offered. The court finds the probative value to outweigh any potential prejudicial impact.
G 21 depicts abrasions to the left arm from the elbow down. The two closest to the elbow are next to what appears to be a lightly bruised or discolored area. The injury closest to the wrist appears to be an abrasion of approximately 1/2 inch. The photo is relevant to the nature of the struggle between RLG and his assailant. The photo does not seem extraordinary. The court finds that the probative value outweighs any prejudicial impact.
G 22 depicts the left forearm, wrist and a portion of the back of the hand. Four abrasions not included in G 21 are apparent. These wounds speak to the nature of the struggle between RLG and his assailant, especially those to the back of the hand. The photo does not seem extraordinary. The court finds the probative value to outweigh any potential prejudice.
G 23 depicts an injury to the outside lower wrist of the left hand, including peeling skin. This photo is relevant to the nature of the struggle between RLG and his assailant. The photo is not extraordinary. The court finds the probative value to outweigh any potential impact. The prosecution is directed to crop out the redundant injury depicted in the upper right hand corner, as well as that portion showing a partial view of a neck injury.
G 25 depicts multiple injuries to the back of RLG's left hand, especially those to the back of the left index finger. This photo illustrates the nature of the struggle between RLG's left hand, especially those to the back of the left index finger. This photo illustrates the nature of the struggle between RLG and his assailant. It is not an extraordinary photo. The court finds that the probative value outweighs any potential prejudice. The prosecution is directed to crop the injury to the left abdominal flank.
G 26 depicts multiple injuries to the back of RLG's left hand and is in large part identical to G 25. The photo likewise illustrates the nature of the struggle between RLG and his assailant, however, given the similarity to G 25, it is redundant. The court finds that the probative value of this photo, standing by itself, outweighs any potential prejudice. The prosecution may use either G 25 or G 26, but not both.
G 28 and G 29 are considered together because each depicts different aspects of various wounds to the palm of RLG's left hand. These photos are relevant to the nature of the struggle between RLG and his assailant, especially as to what appears to be defensive wounds. Close examination of both shows that each depicts different aspects of the wounds. Neither photo is extraordinary. The court finds the probative value outweighs any potential prejudicial impact.
G 32 is the single photo offered depicting the injuries to the back of RLG's right hand. This photo is relevant to the nature of the struggle between RLG and his assailant. It is not an extraordinary photo. The court finds the probative value outweighs any potential prejudice.
G 35 depicts two apparent defensive wounds to the palm of RLG's right hand. This photo is relevant to the nature of the struggle between RLG and his assailant. It is not an extraordinary photo. The court finds the probative value outweighs any potential prejudicial impact.
G 37 depicts numerous wounds to RLG's neck, including one deep and severe to the left neck, two superficial semi-parallel cutting wounds, a smaller superficial cut above and apparent stab wound to the right upper chest. This photo is clearly relevant to the nature to the struggle between RLG and his assailant. It also addresses two wounds not mentioned by Golden. It is also highly graphic. The defense argues that nature and extent of these wounds could be presented by means of a diagram. The court has compared G 37 with the diagrams of the subject wounds which accompany the autopsy reports. Diagrams, however accurate, do not capture the true character and dimension of these wounds. The finder of fact should be presented with the truth. The court finds the probative value outweighs the prejudicial impact.
G 40 depicts wounds to the right back of RLG's head, neck and right ear, including a severe cutting wound to the right rear neck. This photo is relevant to the nature of the attack on RLG. It is also quite graphic. It is not redundant of G 37. The court finds its probative value to outweigh the prejudicial impact.
G 45 depicts a close up of an apparent stab wound to the right back of RLG's head. It appears to be a close up of the same wound depicted in G 40 with a photographer's scale. It is redundant unless a more precise measurement of the wound from the photo is necessary. No such argument was advanced by the proponent. The objection is sustained as redundant under Evidence Code Section 352.
G 48 depicts a wound to the left scalp of RLG. It is relevant to the nature of the attack upon RLG. It is not an extraordinary photo. It is relevant to the nature of the struggle between RLG and his assailant. The court finds the probative value to outweigh any potential prejudice. The Prosecution is directed to crop out the injuries below the ear as they are more clearly depicted in other photos.
G 49 depicts what appears to be a 1/4 inch incised wound to the top of RLG's head as well as a partial view of the wound depicted in G 48, thereby providing the viewer with an appreciation of the spatial relationship. This photo is not extraordinary. It is relevant to the nature of the struggle between RLG and his assailant. The court finds the probative value to outweigh any potential prejudice.
G 50 depicts two apparent incised wounds to RLG's right ear as well as a severe wound to the right rear neck. Neither of the ear injuries were reported in Golden's original report. The photo is relevant to the nature of the struggle between RLG and his assailant. The court finds the probative value to outweigh any prejudicial impact. The prosecution is directed to crop out the neck injury as it is depicted in other photos and its inclusion here is unnecessary and redundant.
G 51 and 53 both depict several injuries to the left ear, neck and throat area. G 53 depicts a blood clot behind the left ear; however the photographer's scale obscures the severe injury to the left neck. G 51 clearly depicts the severe wound to the left neck; however, it does not depict the blood clot. As noted in the prosecution's 14 April 1995 letter brief Golden's original report did not include mention of a number of these injuries. These photos are clearly relevant to the nature of the struggle between RLG and his assailant. In a more perfect world Golden's original report would have been complete in its description of all of the many injuries and a single photo would have included all the injuries in this area. These are graphic and disturbing photos; however, the court finds that their probative value outweighs the prejudicial impact.
G 55 and G 58 are each a similar view of the right facial area depicting numerous injuries. G 55 is an overall view from the mid-chest up, allowing the viewer to place in relationship many of the wounds. G 58 is a tighter photo concentrating upon the several linear abrasions on the right facial area. G 55 depicts an apparent stab wound on the right clavicle that does not appear to be depicted in any other photo, as well as wounds not mentioned by Golden in his report. G 55 is relevant to the nature of the struggle between RLG and his assailant. The court finds its probative value outweighs the prejudicial impact. The court finds G 58 to be redundant. The court sustains the objection to G 58 pursuant to Evidence Code Section 352.
B 1 and B 2 depict the body of Nicole Brown Simpson as it was received at the offices of the Medical Examiner/Coroner's Office. B 1 depicts the body from the head to just below the knees, in essence, an overall photo. B 2 depicts the body from mid-chest to the toes. B 1 is relevant to the condition of the body as recovered, the position of the items of clothing(6) and provider an explanation why no sexual assault kit was collected by the coroner. B 1 is a very unpleasant photo; however; the court finds that its probative value outweighs the prejudicial impact. B 2 is largely redundant and adds nothing necessary to aid the jury. The objection to B 2 is sustained pursuant to Evidence Code Section 352.
B 5(7) provides an overall view of the back and is the only photo which depicts an apparent abrasion to the left shoulder. This photo is not extraordinary. The photo is relevant to determine the nature of the assault. It is not an extraordinary photo. The court finds that the probative value outweighs any potential prejudicial impact.
B 9 depicts apparent bite marks(8) and an apparent patterned group of abrasions on the back. This latter injury, accepting DDA Kelberg's oral proffer, speaks to the manner in which the severe cutting wound to the neck was inflicted. It is not an extraordinary photo. The court finds that its probative value outweighs any potential prejudicial impact.
B 10 depicts a large and deep cutting injury to the right neck starting just below the right ear. This same injury is more clearly depicted in B 16. There are also apparent abrasions to the right shoulder which are also depicted in B 12. There are an apparent "u" shaped abrasion just below the neck which is more clearly depicted in B 11. There is an abrasion near the right eyebrow which does not appear in any other photo. As to those injuries more clearly depicted in other photos, this photo is redundant. The court sustains the objection under Evidence Code Section 352 as to those injuries more clearly depicted in other photos. The prosecution is directed to crop B 10 to reflect only the abrasion in the vicinity of the right eyebrow, but including the chin tip, ear and photographer's scale. The court finds the cropped photo relevant to the injuries sustained and the nature of the struggle. The cropped photo is not extraordinary. The court finds the probative value to outweigh any potential prejudicial impact.
B 11 depicts what appears to be a "U" shaped abrasion on the upper right back just below the neck. The photo is relevant to the nature and extent of the attack upon the victim. Cropped in accordance with court's directions, it is not a remarkable photo. The court finds the probative value to outweigh any potential prejudice. The prosecution is directed to crop the photo 1/2 inch to the right of the photographer's scale.
B 12 depicts minor injuries to the right rear shoulder and cutting injuries to the right hand ring finger. It is relevant to the nature of the attack and the resistance of the victim. It is relevant to the nature of the attack and the resistance of the victim. It is not an extraordinary photo. The court finds the probative value outweighs any potential prejudicial impact.
B 13 shows the face and the neck. It depicts lividity on the left side of the face relevant to the time of death issue. It depicts a major cutting injury to the right of the neck. The prosecution proffer is that this photo most accurately depicts the upward angle of the major cutting wound, thereby establishing important information as to how this lethal wound was inflicted. There are other apparent injuries to the left neck which are more clearly depicted in B 18. This is a horrible photo. The court finds the photo to have substantial probative value which outweighs the prejudicial impact.
B 16 depicts the left and center of a major cutting injury to the neck. The depth is relevant to the nature of the struggle between NBS and her assailant. The court notes the lack of multiple parallel cutting wounds as depicted in G 37. The edges of the injury are relevant to the nature of the weapon used. This is a horrible photo. It has substantial probative value that cannot be presented in any other meaningful way such as by diagram as suggested by the defense. The court finds the probative value outweighs the prejudicial impact.
B 18 depicts 4 apparent stab wounds to the left neck and demonstrates their proximity to the major cutting wound. It also most clearly depicts the left most edge of the major cutting wound. It is relevant to the nature of the assault and the type of weapon used. The court finds the probative value far outweighs the prejudicial impact.
B 20 depicts a bruise to the right side of the head. The major cutting wound is in a shadowed area and not distinct. The photo is relevant to the nature of the attack and the resistance of the victim. It is not a remarkable photo. The court finds the probative value outweighs any potential prejudice.
B 23 depicts two apparent sharp force injuries to the right rear of the head. The photo is relevant to the nature of the attack and the resistance of the victim. It is not an extraordinary photo. The court finds the probative value outweighs any potential prejudicial impact.
B 24 centers upon an apparent sharp force injury to the left side top of the head. The right edge of the wound shows two distinct angles as if the cutting edge of the weapon was turned one way and then the other. The photo is relevant to the nature of the attack and any resistance of the victim. It is not an extraordinary photo. The court finds the probative value outweighs any potential prejudice.
B 26 depicts an apparent sharp force injury to the left side top of the head. It is relevant to the nature of the attack upon the victim. It is not an extraordinary photo. The court finds that the probative value outweighs any potential prejudicial impact.
B 28 depicts an abrasion to the right elbow. This injury was not noted in Golden's original report. It is relevant to the nature of the attack and the resistance of the victim. It is not an extraordinary photo. The court finds that its probative value outweighs any potential prejudice. The court directs the prosecution to crop the right breast.
B 29 depicts injuries to the back of the left hand. It is relevant to the nature of the attack and the resistance of the victim. It is not an extraordinary photo. The court finds the probative value to outweigh any potential prejudice. The prosecution is directed to crop the pubic hair.
B 30 depicts the palm surface and fingers of the left hand. There are no apparent injuries. B 31 depicts the palm surface and fingers of the right hand. There is an apparent cut to the right ring finger. The prosecution argues the lack of significant defensive wounds indicates the victim was incapacitated before the fatal neck wounds were inflicted, thereby allowing a physically superior assailant to overpower and kill two victims at approximately the same time. These photos are not extraordinary. Their probative value outweighs any potential prejudice.
The clerk of the court is directed to immediately serve a copy of this order upon counsel for each of the parties by facsimile and upon their next appearance in court.
IT IS SO ORDERED
Notes:
(1) The defendant voluntarily waived his presence
(2) RT 75/11841-11842
(3) RT 75/11856
(4) Defense counsel's opening statement RT 75?11855
(5) See defense counsel's opening statement RT 75/11856
(6) The dress was later subject to DNA testing.
(7) To be cropped by the prosecution to depict the body from the waist up.
(8) Noted forensic bite marke expert Dr. Gerald Vale has submitted a report
to the Office of the Medical Examiner/Coroner opining this is not a bite
mark.