Groden Goes to CourtDay Four At the O.J. Simpson Trial
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Groden Goes to Court Day Four At the O.J. Simpson Trial |
1
1 SANTA MONICA, CALIFORNIA; TUESDAY, JANUARY 14, 1997
29:00 AM
3 DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
4 APPEARANCES:
5 (Per Cover Page.)
6 (REGINA D. CHAVEZ, OFFICIAL REPORTER)
7
8 (Jurors resume their respective
9 seats.)
10
[Earlier testimony deleted]
11 MR. KELLY: E.J. Flammer, Your Honor.
12
13 E.J. FLAMMER,
14 called as a witness on behalf of Plaintiffs, was duly
15 sworn and testified as follows:
16
17 THE CLERK: You do solemnly swear that the
18 testimony you may give in the cause now pending before
19 this court shall be the truth, the whole truth and
20 nothing but the truth, so help you God~?
21 THE WITNESS: I do.
22 THE CLERK: Please be seated.
23 Sir, if you would please state and spell
24 your name for the record.
25 THE WITNESS: E.J. Flammer. E., J., F, as in
26 Frank, l-a-m-m-e-r.
27
28
95
1
2 DIRECT EXAMINATION
3 BY MR. KELLY:
4 Q. Morning, Mr. Flammer.
5 A. Morning.
6 Q. How old are you?
7 A. 24.
8 Q. And what city do you currently live in?
9 A. Hamburg, New York.
10 Q. And is that a suburb of Buffalo?
11 A. Yes, it is.
12 Q. How long have you lived there for?
13 A. My whole life.
14 Q. And are you currently employed?
15 A. Yes, I am.
16 Q. And where are you employed?
17 A. I'm employed at Bates Jackson Engraving
18 Company.
19 Q. How long you worked there?
20 A. Since the summer of '92.
21 Q. In addition to your -- you work there
22 full time?
23 A. Yes.
24 Q. And in addition to your full-time
25 employment there, do you have any other profession
26 that you engage in also?
27 A. I -- yes, I do, I take pictures
28 professionally as a freelancer on the side.
96
1 Q. As a photographer?
2 A. Yes.
3 Q. And how many years have you been engaged
4 in the photography profession?
5 A. I have been taking pictures since my
6 sophomore -- junior year in high school.
7 Q. Up to and including the present?
8 A. Correct.
9 Q. Now, what I'd like to do -- by the way,
10 did you attend college?
11 A. Yes, I did.
12 Q. Where?
13 A. At Canisius College, Buffalo, New York.
14 Q. Did you graduate?
15 A. Yes, I did.
16 Q. Are you taking any postgraduate studies?
17 A. Yes, I'm working on my Master's in
18 Business Administration there as well.
19 Q. Let me finish my question before you give
20 your answers, okay, Mr. Flammer.
21 A. Sure.
22 Q. Now, I want to draw your attention to
23 September 26, 1993.
24 Do you recall where you were on that
25 particular date?
26 A. Yes, I do.
27 Q. Where was that?
28 A. I was at Rich Stadium.
97
1 Q. And for the ladies and gentlemen of the
2 jury, what does Rich Stadium serve as?
3 A. Rich Stadium is the home field for the
4 Buffalo Bills.
5 Q. Professional football?
6 A. Professional football team.
7 Q. For what purpose did you happen to be at
8 Rich Stadium on September 26, 1993?
9 A. There were two reasons. The first reason
10 was to take pictures for the Monday Morning
11 Quarterback Club as a promotional event that they were
12 having celebrating O.J. Simpson's 2,003 yards, the
13 anniversary of that date. There was a promotional
14 picture to be done before the game. I was also there
15 to shoot the actual game itself for the Buffalo Bills
16 Report.
17 Q. Okay.
18 You indicated you're 24 now?
19 A. Correct.
20 Q. So you'd have been 20, 21, at the time?
21 A. Correct.
22 Q. Now, why you, of any other photographers,
23 why were you hired to take these pictures for the
24 Monday Morning Quarterback Club on this day?
25 A. My father was the president of the Monday
26 Morning Quarterback Club.
27 Q. Okay.
28 And what time did you arrive at the
98
1 stadium that day?
2 A. I arrived around 10 o'clock in the
3 morning.
4 Q. And what was your understanding of what
5 those photos were to be used for that day?
6 A. The photos were to be used for
7 publication and just as a general promotion for the
8 event itself, to help sell tickets and things like
9 that.
10 Q. Okay.
11 And what time did you arrive at the
12 stadium?
13 A. 10 o'clock.
14 Q. And after your arrival there at Rich
15 Stadium, did you have occasion to see Mr. Simpson?
16 A. Yes, I did.
17 Q. And did you know Mr. Simpson by sight,
18 prior to that day?
19 A. Yes, I did.
20 Q. And how did you know him by sight?
21 A. I grew up in Buffalo. O.J. Simpson's a
22 landmark around there.
23 Q. You have nothing against Mr. Simpson?
24 A. No, I do not.
25 Q. Now, in what context did you see
26 Mr. Simpson that morning after you arrived there at
27 10 a.m.?
28 A. I'm sorry?
99
1 Q. Under what circumstances did you see
2 Mr. Simpson -- what happened next after you got there
3 and you saw Mr. Simpson?
4 A. We were -- I was taken to the field with
5 the other members that are -- that I was to take the
6 pictures with, and Mr. Simpson happened to be walking
7 up towards the press box, and one of the people in the
8 picture --
9 THE REPORTER: Can you repeat that, please.
10 THE WITNESS: One of the people in the picture
11 called Mr. Simpson back to the field as he was walking
12 up to the press box.
13 Q. Who was that individual that called out
14 to Mr. Simpson?
15 A. Bill Munson.
16 Q. Okay.
17 And when Mr. Simpson came back down to
18 the field, did you then take some photographs?
19 A. Yes, I did. There was a time when I set
20 up the shot where -- lined the people up, the people
21 in the picture, you know, did meet Mr. Simpson, talk
22 to him a little bit, shook his hand. They did give
23 him a Monday Morning Quarterback Club pin, which is --
24 Q. Try to speak up a little.
25 A. I'm sorry about that.
26 They gave him a Monday Morning
27 Quarterback Club pin for the picture, which some of
28 the other members of the club were wearing at the
100
1 time.
2 MR. KELLY: Can I have the next in order,
3 please.
4 THE CLERK: 2320.
5 MR. KELLY: Okay.
6 I'm sorry, did we get --
7 THE CLERK: 2320.
8 (The instrument herein described
9 as a Monday Morning Quarterback
10 Club pin was marked for
11 identification as Plaintiffs'
12 Exhibit No. 2320.)
13
14 Q. (BY MR. KELLY) Mr. Flammer, I'm going to
15 show you a button.
16 Do you recognize that?
17 A. Yes, I do.
18 Q. And what do you recognize it as?
19 A. This is my Monday Morning Quarterback
20 Club pin. I'm a member of the club as well.
21 Q. Is that the same type of button you saw
22 Mr. Simpson put on for the photograph that day?
23 A. Yes, sir.
24 Q. If you can just leave it there.
25 A. Sure.
26 Q. Okay. If I could have it back.
27 A. Sure.
28 MR. KELLY: Your Honor, if I could just pass
101
1 this around while I continue with my questioning also
2 if that's all right.
3 THE COURT: You may.
4
5(Pin is passed around to jurors.)
6
7 Q. (BY MR. KELLY) Now, you indicated that
8 you took a number of photographs then with a group of
9 people posing with Mr. Simpson; is that right?
10 A. That is correct.
11 Q. And you recall who those other
12 individuals were who were posing with Mr. Simpson?
13 A. Yes, I do.
14 Q. What were their names?
15 A. Bill Munson and Dennis Lynch from the
16 Buffalo Bills were in the picture. My father,
17 Ed Flammer, who was the president of the Quarterback
18 Club, Jerry Flashner, and I believe Mike Lacata was
19 the other person in the picture with Mr. Simpson.
20 Q. Why were those other persons posing with
21 Mr. Simpson?
22 A. They were members of the committee that
23 were chosen to help promote and to organize the
24 dinner -- the dinner celebration that I was taking the
25 picture to promote.
26 Q. This dinner celebration was a
27 commemorative for Mr. Simpson in particular, was it
28 not?
102
1 A. That is correct.
2 Q. Now, how many pictures did you take of
3 those individuals at that time, did you shoot?
4 A. There were 30 pictures that were taken.
5 Q. And were those all group photos or what
6 was the breakup?
7 A. They were not all group photos. The
8 majority of them were group photos, though, but there
9 were three individual shots done as well with
10 Mr. Simpson and one other person.
11 Q. And what type of camera equipment did you
12 use on that particular day in taking those pictures?
13 A. It was a 35 millimeter camera, Canon T90,
14 with a Vivitar 283 flash used to fill in the shadows,
15 I used a 285 F4 zoom lens to shoot this as well on 400
16 speed film color negative.
17 Q. Do you still have all that equipment in
18 your possession that you used that day to take those
19 photographs?
20 A. Yes, I do.
21 Q. Do you have it with you?
22 A. Yes, I do.
23 Q. Can you just pull it up briefly so the
24 ladies and gentlemen of the jury can see that
25 equipment.
26
27 (Witness complies, removes camera
28 from bag and displays camera and
103
1 flash.)
2
3 Q. (BY MR. KELLY) Now -- if you could speak
4 into the mike.
5 A. Okay.
6 Q. You're fading on us.
7 A. Sorry about that.
8 Q. Now, the way you have that equipment set
9 up right now, is that the way you utilized the
10 equipment that day of September 26 of '93 in taking
11 those 30 photos?
12 A. For the most part. If there was any
13 change in it at all, it would be the flash may have
14 been tipped up a little bit just to bounce the light
15 to even out a little bit, but other than that...
16 Q. And how much time did you spend taking
17 those 30 photographs?
18 A. If it was ten minutes it was a long time.
19 It was not that long a period of time.
20 Q. And what, if anything -- first of all,
21 did you have film in the camera when you started the
22 shooting initially?
23 A. Yes, I did.
24 Q. Did you have a new roll?
25 A. Yes, brand new roll.
26 Q. What did you do in terms of putting the
27 film in the camera, first of all?
28 A. The film was loaded in the camera as the
104
1 shot was being set up, as they say. And after I -- it
2 popped off the first 27 pictures, there was another
3 roll that was loaded in because I had rewound the
4 first roll before the third person had spoken up and
5 said they wanted an individual shot of Mr. Simpson.
6 Q. Now, when you were done with the first 27
7 photos, what, if anything, did you do with that roll
8 of film that was in the camera?
9 A. The beginning part of the film, which is
10 very common practice for photographers, was torn off,
11 just to indicate that that roll had been -- so it
12 doesn't get reshot during the course of the game. I
13 had a whole Bills game to shoot, which I would
14 probably shoot close to 10 rolls of film.
15 Q. What do you do after you do the tear?
16 A. The film was taken out, torn, and put
17 into the front pocket of my fanny pack.
18 Q. The fanny pack is something you were
19 carrying with you that entire day?
20 A. Correct.
21 Q. Put another roll in the camera?
22 A. Correct.
23 Q. Then what did you do?
24 A. Shot the other three pictures with
25 Mr. Flashner and Mr. Simpson.
26 Q. And after you took those last three
27 photos with Flashner and Mr. Simpson, what, if
28 anything, did you do then?
105
1 A. What I did was kind of turned the camera
2 off and walked into the photographer's locker room and
3 just waited for the game to start.
4 Q. And did you utilize the rest of that film
5 that had the initial 38 shots on it?
6 A. The rest of that roll was shot during
7 warmups of the game.
8 Q. Do you recall who they were playing that
9 day, by the way?
10 A. Miami Dolphins.
11 Q. Now, what did you do with that second
12 roll of film when you were done with it?
13 A. The same procedure. When the roll was
14 complete, I used up -- the leader was torn off, put
15 into the front part of the fanny pack, and a new roll
16 loaded in.
17 Q. And what was the -- by the way, up to
18 when that second roll was completed, did you take
19 other rolls of the game that day also?
20 A. That is correct.
21 Q. Now, after the game, did there come a
22 time that you took some further steps with the film,
23 those first two rolls that you utilized that day?
24 A. Yes. The rolls were taken to Nova,
25 N-o-v-a, Photo, which is a professional lab that I
26 would normally take my Bills film to on Monday morning
27 for processing.
28 Q. And that's what you did that Monday after
106
1 the game?
2 A. Correct.
3 Q. And did you have any prints made of the
4 negatives at that time?
5 A. Yes. I would have taken as requested --
6 Dennis Lynch from the Bills was to take some 5-by-7's
7 for people in the picture just kind of that -- that
8 you -- just a -- just a memento from that day. There
9 was six 5 by 7's that were made, distributed to Dennis
10 Lynch, that were all color, plus there was a
11 black-and-white print made for publication for the
12 paper, the Buffalo Bills Report, which I was working
13 for.
14 Q. Now, you indicated you only made six
15 prints that day at Nova; is that correct?
16 A. That's correct.
17 Q. And the others were just left as
18 negatives?
19 A. Correct.
20 Q. All right.
21 I should say everything was left as a
22 negative but you only made six prints from all the
23 negatives from the day before?
24 A. There was a seventh print made, this was
25 a black-and-white. There were seven; six color, one
26 black-and-white.
27 Q. Now, with regard to the six prints that
28 were made, what did you do with them subsequently
107
1 after they were made?
2 A. They were distributed to Dennis Lynch and
3 he distributed them from there.
4 Q. And you also indicated that through
5 the -- a certain connection of yours -- and in making
6 these prints, you were to be paid for this project,
7 were you not?
8 A. That is correct.
9 Q. And did you happen to submit -- submit a
10 bill to the Buffalo Bills for the six --
11 A. Yes, the six 5-by-7's were billed to the
12 Buffalo Bills directly.
13 Q. And did they pay that bill?
14 A. Yes, they did.
15 Q. To you?
16 A. Yes, they did.
17 Q. I'm going to ask you to identify this,
18 first of all.
19 MR. BAKER: May I see it.
20 MR. KELLY: Before he sees it?
21 MR. BAKER: I mean that's customary, isn't it?
22 MR. GELBLUM: Well, I guess he'll go along with
23 it.
24
25 (Mr. Kelly shows document to
26 Mr. Baker.)
27
28 Q. (BY MR. KELLY) I'm going to ask you to
108
1 look at both of those items, Mr. Flammer.
2 A. Sure.
3 Q. Maybe you can identify it?
4 A. The first is the invoice, invoice number
5 2012, which has on it two different items; the first
6 would be the O.J. Simpson six 5-by-7 color prints, the
7 second is another photo that I had taken at a
8 different date.
9 Q. And when did you make up that invoice for
10 submission to the Bills?
11 A. That was billed October 17 of '93.
12 Q. If I could see that again, please.
13 A. Sure.
14 Q. Is that what you were just referring to,
15 Mr. Flammer?
16 A. Yes.
17 Q. The invoice you submitted to the Bills?
18 A. Yes, sir.
19 Q. Now --
20 MR. KELLY: If you could back it up.
21 Q. (BY MR. KELLY) And could you point to
22 the part that describes -- well, first of all, the
23 date up there, does that indicate the date that you
24 generated that invoice?
25 A. That is correct.
26 Q. Okay.
27 And down below, where it says
28 "Description" and it says "5-by-7 Custom Color
109
1 Prints" --
2 A. Um-hum.
3 Q. -- "O.J. Simpson" it says "Quantity."
4 MR. KELLY: If you could back off a little bit,
5 Steve. Okay. Take it across, left to right, Steve.
6 Q. (BY MR. KELLY) And it's got the rates at
7 6.95 per print; is that correct?
8 A. That's correct.
9 Q. The total for those six prints was 41.70;
10 is that correct?
11 A. Correct.
12 Q. And there's some other photos --
13 MR. KELLY: If you can go back and do the same
14 thing, Steve.
15 Q. (BY MR. KELLY) Where we have quantity
16 five, and 5-by-7 custom color prints flag wavers, the
17 rate, were those photos taken this day?
18 A. I don't believe they were taken on the
19 same day.
20 Q. Okay.
21 They're not related to this --
22 A. No.
23 Q. -- promotional photography?
24 A. They're separate.
25 Q. Okay.
26 And --
27 MR. KELLY: You can take that down, Steve.
28 Q. (BY MR. KELLY) And you also indicated
110
1 there in front of you, that you had been paid by the
2 Bills for this job?
3 A. That is correct.
4 Q. And what is that you have in front of you
5 there?
6 A. This is the check stub from the Buffalo
7 Bills paying that invoice.
8 Q. Okay.
9 And what's the date on that?
10 A. The invoice date is on here of 10/17 and
11 the date of payment is 11/23.
12 Q. Of what year?
13 A. '93.
14 Q. '93.
15 MR. KELLY: Can you back off a little first,
16 Steve.
17 Q. (BY MR. KELLY) Is that the stub that had
18 a check attached to it, that was sent to you from the
19 Bills as a result of the invoice submitted?
20 A. Yes.
21 Q. Okay.
22 MR. KELLY: And if you could bring it a little
23 closer, Steve.
24 Q. (BY MR. KELLY) It shows the date.
25 That's the date that that check was issued; is that
26 correct?
27 A. Correct.
28 MR. KELLY: And if you could back it off into
111
1 the left a little bit, Steve.
2 Q. (BY MR. KELLY) Invoice date 11/17/93, is
3 that the date of your invoice?
4 A. Yes.
5 MR. GELBLUM: 10/17.
6 Q. (BY MR. KELLY) 10/17, I'm sorry.
7 And 76.45 is the amount you invoiced for
8 that complete set of prints; is that right?
9 A. Yes.
10 THE CLERK: The invoice we marked 2321, and the
11 check stub 2322.
12
13 (The instrument herein described
14 as an invoice was marked for
15 identification as Plaintiffs'
16 Exhibit No. 2321.)
17
18 (The instrument herein described
19 as a check stub was marked for
20 identification as Plaintiffs'
21 Exhibit No. 2322.)
22
23 Q. (BY MR. KELLY) Now, Mr. Flammer, you
24 indicated that on the 26th of September, '93, you went
25 into Rich Stadium to take these shots; is that
26 correct?
27 A. That is correct.
28 Q. And not just anybody is allowed to walk
112
1 into Rich Stadium for this purpose, are they?
2 A. No, they're not.
3 Q. What is it that enables you to get into
4 Rich Stadium for practicing your profession?
5 A. A field credential.
6 Q. Did you have a field credential for that
7 day?
8 A. Yes, I did.
9 Q. Ask you to take a look at this and see if
10 you could identify that for me?
11 A. Yes. That is my field credential for
12 that game on the 26th.
13 Q. Does that reflect the date that it would
14 be used on?
15 A. Yes.
16 Q. What is the date on there?
17 A. Sunday, September 26, 1993.
18 Q. Okay.
19 Thanks.
20 THE CLERK: 2323.
21
22 (The instrument herein described
23 as a field credential was marked
24 for identification as Plaintiffs'
25 Exhibit No. 2323.)
26
27 Q. (BY MR. KELLY) Now, Mr. Flammer, is that
28 the pass you wore that day that enabled you to get
113
1 into Rich Stadium to take the photos that we've been
2 speaking of?
3 A. Yes.
4 Q. Is that the Bills-Dolphins game?
5 A. That is correct.
6 Q. Now, in addition to those six prints you
7 indicated you billed the Buffalo Bills for, did you
8 develop or have prints made from any other negatives
9 after that time that you took the photos?
10 A. There was one other negative that was
11 developed in black-and-white for the publication for
12 the Buffalo Bills Report.
13 Q. And who developed that particular
14 black-and-white print from the negative?
15 A. I did, in my own darkroom.
16 Q. Where is that darkroom located?
17 A. In the basement of my house.
18 Q. And do you recall what particular frame
19 of negative that print was made from?
20 A. 7-A.
21 Q. Okay.
22 And did there come a time that you ever
23 saw -- first of all, what did you do with that
24 black-and-white print after you made it yourself?
25 A. The print was made in my darkroom and
26 delivered to the editor of the paper with the other
27 prints from that game and for publication going for
28 the next month.
114
1 Q. And by the way, what did you do with the
2 six prints that you made?
3 A. Those were distributed to Dennis Lynch of
4 the Bills.
5 Q. Did there come a time that you ever saw
6 the reproduction of that black-and-white print that
7 you had made in your darkroom that day?
8 A. Yes. It appeared in the Buffalo Bills
9 Report.
10 MR. KELLY: 2317.
11
12 (Counsel hands Exhibit 2317 to
13 witness.)
14
15 Q. (BY MR. KELLY) Do you recognize, first
16 of all, that publication?
17 A. Yes, I do.
18 Q. What do you recognize it to be?
19 A. This is the Buffalo Bills Report.
20 Q. Okay.
21 And how was that received, first of all,
22 by people who get the Report?
23 A. It was a monthly publication that was
24 mailed to subscription holders.
25 Q. Are you a subscription holder?
26 A. Because I was photo editor, they put me
27 on the subscription list.
28 Q. Did there come a time that you received
115
1 that particular publication?
2 A. Yes.
3 Q. What is the date of that particular
4 publication?
5 A. November of 1993.
6 Q. And did that black-and-white print that
7 you had made yourself, in the basement of your own
8 house, appear in that publication?
9 A. Yes.
10 Q. On what page does it appear on?
11 A. Of the first section, it appears on page
12 19.
13 Q. If you could hold that up for the ladies
14 and gentlemen of the jury.
15
16(Witness complies.)
17
18 Q. And that's the photograph that was
19 generated by you personally, from negative 7-A in the
20 basement of your house?
21 A. Right, correct.
22 Q. And did you actually ever have occasion
23 to make a color print from that same frame that
24 appeared in that Bills Report?
25 A. I'm almost positive that there was the
26 same frame that was the six 5-by-7's or the five
27 5-by-7's that were distributed to Denny Lynch.
28 Q. Going to ask you to look at an exhibit
116
1 that was marked previously as 2303 and see if you,
2 first of all, recognize what that is?
3 A. Yes. This is a color contact sheet from
4 the negatives shot that day.
5 Q. Does that reflect the negative 75 that
6 was used to make the photograph that appeared in the
7 Bills Report publication?
8 A. Yes.
9 Q. If I can have that for a moment?
10 A. Sure.
11 MR. KELLY: Steve, hold onto that, please.
12 Q. (BY MR. KELLY) Is that part of the
13 contact sheet of your original negatives 75, that was
14 used to generate the publication, Bills Report?
15 A. Yes.
16 Q. Okay.
17 Take it down, Steve.
18
19 (Mr. Foster removes contact sheet
20 photographs from Elmo.)
21
22 Q. (BY MR. KELLY) I'm going to ask you to
23 look at these photographs.
24 Now, in looking through those 30
25 photographs, do you recognize them?
26 A. Yes.
27 Q. What do you recognize them to be?
28 A. Those were the photos that I took that
117
1 day.
2 Q. And were generated from the 30 negatives
3 you had taken for the Quarterback Club?
4 A. Yes.
5 MR. KELLY: Your Honor, if we could have those
6 marked next in order sequentially.
7 THE CLERK: How many are there?
8 MR. KELLY: There are 30, but --
9 MR. PETROCELLI: They're different sizes. Just
10 mark them sequentially all 30.
11 THE CLERK: Starting with 2324.
12
13 (The instruments herein referred
14 to as photos were marked for
15 identification as Plaintiffs'
16 Exhibit No. 2324, 2325, 2326,
17 2327, 2328, 2329, 2330, 2331,
18 2332, 2333, 2334, 2335, 2336,
19 2337, 2338, 2339, 2340, 2341,
20 2342, 2343, 2344, 2345, 2346,
21 2347, 2348, 2349, 2350, 2351,
22 2352, 2353.)
23
24 THE CLERK: I'll have to mark them one by one,
25 as you go. When you refer to them, just mark the back
26 of them.
27 Q. Now, Mr. Flammer, you had indicated that
28 on the Monday after the September 26, 1993 game, you
118
1 had those six prints made, correct?
2 A. Yes.
3 Q. And did you have any other -- actually,
4 what did you do with all the negatives after you had
5 those six prints made on that Monday after the game?
6 A. The negatives were put into a three-ring
7 binder in the darkroom at my house.
8 Q. And were they there for a number of
9 years?
10 A. Yes.
11 MR. BAKER: That's leading, Your Honor.
12 THE COURT: Sustained.
13 Q. (BY MR. KELLY) And tell me, when was the
14 next time you had occasion to look at those negatives
15 after that?
16 Was it that Monday you had put them in
17 the three-ring binder in the basement?
18 A. Yes.
19 Q. Can you tell me when the next time you
20 had occasion to look at those negatives?
21 A. The negatives were then looked at
22 December 27, 1996.
23 Q. And after you looked at those negatives,
24 did you have occasion to have prints made from them?
25 A. The prints that were made were for my
26 agent, yes.
27 Q. And when were those prints made?
28 A. Those were made Monday, the 30th -- I
119
1 believe it would have been the 30th of December.
2 Q. Of December of what year?
3 A. '96.
4 Q. And when I asked you before when the next
5 time you saw those after 1993, you said December 27.
6 What year was that?
7 A. 1996.
8 Q. Okay.
9 And, by the way, did you make an
10 affirmative effort to go look for those negatives at
11 this time.
12 MR. BAKER: This is leading and suggestive.
13 THE COURT: Sustained.
14 MR. KELLY: I'll withdraw the question.
15 Q. (BY MR. KELLY) Now, was December 30 of
16 1996 the first time you generated prints from all 30
17 of those negatives?
18 A. Yes.
19 Q. And do you recall meeting with me on the
20 afternoon of December 30, 1996?
21 MR. BAKER: I want to object. I want to
22 approach.
23 THE COURT: You may.
24
25
26 (The following proceedings were
27 held at the bench, with the
28 reporter.)
120
1
2 MR. BAKER: First of all, Your Honor, I don't
3 want -- I would object to Mr. Kelly bringing up
4 anything about any expert going into Buffalo or
5 Hamburg and looking at these photos, under 2034(l) and
6 2034(k), because now nothing in either of those
7 sections' requirements, when you want to designate an
8 expert to -- additional expert testimony, not one
9 requirement in either of those code sections has been
10 adhered to, in addition to what I put on the record
11 yesterday.
12 Second of all, I don't think that -- that
13 Mr. Kelly can get out of this witness his
14 self-serving -- whatever he did with this witness.
15 And let me just say, this witness
16 wouldn't talk to us. He wouldn't say one word to us.
17 He says, no, I won't even tell you whether or not
18 Scull's a friend, 'cause you got to talk to Mr. Kelly.
19 So that Mr. Kelly's apparently his lawyer.
20 And I would object to him discussing any
21 conversations and hearsay conversations that took
22 place.
23 MR. KELLY: I was -- all I was going to ask him
24 was if he provided me with prints from those negatives
25 on that date, an that was it.
26 THE COURT: Okay. You may ask that.
27
28(The following proceedings were
121
1 held in open court, in the
2 presence of the jury.)
3
4 Q. (BY MR. KELLY) Mr. Flammer, on
5 December 30, did you provide me with some prints that
6 had been generated from those 30 negatives?
7 A. Yes.
8 Q. Do you recall how many you gave to me at
9 this time?
10 A. I believe it was four.
11 Q. Now, in addition to the prints you've
12 provided me on December 30, did you take any steps to
13 market or sell these 30 prints?
14 A. Yes. I had hired an agent and spoken to
15 a lawyer, who happens to be a family friend, and is my
16 cousin's husband.
17 Q. The lawyer is?
18 A. Yes.
19 Q. Okay.
20 And the agent, when did you hire him to
21 market these photos?
22 A. That was the -- I actually didn't sign a
23 formal agreement with him until the evening of the
24 30th.
25 Q. When you had spoken?
26 A. I had spoken to him before that.
27 Q. And do you know whether or not these
28 prints, or copies of these prints, had been sold?
122
1 A. I had been advised by my attorney that
2 the three major networks have purchased -- purchased
3 rights to them.
4 Q. Okay.
5 And do you know for how much?
6 A. No, I do not.
7 Q. By the way, have you ever been contacted
8 by any representatives of Mr. Simpson's defense team?
9 A. Not to my knowledge.
10 Q. Okay.
11 Mr. Flammer, if you could, just look
12 through here.
13 And would you be able to identify the
14 print generated from negative 7A?
15 A. Yes.
16 Q. If you could, look on the back, sir.
17 A. (The witness complies.)
18
19(Mr. Kelly hands photo to counsel.)
20
21 MR. KELLY: It says 2329.
22
23(Exhibit 2329 displayed on Elmo
24 screen.)
25
26 Q. (BY MR. KELLY) Is that a print generated
27 from that same negative, 7A, that, again, that you
28 made the black-and-white photo that was used in the
123
1 Buffalo Bills Report in November of 1993?
2 A. Yes.
3 THE COURT: What was that -- was this? You
4 mark these as exhibits now?
5 MR. KELLY: Excuse me. They have been marked.
6 THE COURT: What is this one?
7 MR. FOSTER: 2329.
8 MR. GELBLUM: It's one of the 30, Your Honor.
9 MR. KELLY: You can take that off, Steve.
10
11(Exhibit 2329 removed from Elmo
12 screen.)
13
14 Q. (BY MR. KELLY) Mr. Flammer, you
15 indicated that the first thing you did after that
16 shoot that day, on September 26, 1993, was generate
17 negatives; is that correct?
18 A. Yes.
19 Q. And so, from September 26, 1993, have you
20 maintained custody and control of those negatives?
21 A. Yes.
22 Q. And, by the way, do you have those
23 negatives here with you today?
24 A. Yes, I do.
25 Q. If you could, pull them out, please.
26
27 (Witness removes negatives from
28 briefcase. )
124
1
2 Q. (BY MR. KELLY) And what are you holding
3 in your hands?
4 If you could, describe each one and hold
5 them up for --
6 A. I'm holding two clear file storage --
7 plastic sleeving, holding the group shots and two of
8 the individual shots with Mr. Simpson on this roll.
9 And this roll over here would be the
10 other three photos, along with some warm-up shots of
11 the Buffalo Bills.
12 Q. If I could see those for a minute,
13 please.
14 (Witness hands negatives to Mr. Kelly.)
15
16 MR. KELLY: Will these show up on the Elmo?
17
18 (Negatives displayed on Elmo screen.)
19
20 MR. FOSTER: They might need to be taken out of
21 the plastic.
22
23 MR. KELLY: Can you focus to make up the --
24 MR. BAKER: You going to mark these?
25 If we're going to show them, I want them
26 marked.
27 THE COURT: Marked for identification only.
28 THE CLERK: 2354.
125
1 MR. KELLY: 23 --
2 THE CLERK: 54.
3 MR. KELLY: 2354.
4
5 (The instrument herein referred to
6 as Negatives contained in plastic
7 sleeving of photographs taken by
8 Mr. Flammer on September 26, 1993,
9 was marked for identification as
10 Plaintiffs' Exhibit No. 2354.)
11
12 Q. (BY MR. KELLY) Looking at that 75, it
13 appears sort of x-ray image on the screen.
14 Is that the negative we've been referring
15 to that generated the black and white that then
16 appeared in the Bills Report?
17 A. Yes.
18 MR. KELLY: If you could back off a little bit,
19 show the entire strip.
20 Q. (BY MR. KELLY) And that wasn't the first
21 picture in the roll taken, was it?
22 A. No, it was not.
23 Q. You have never taken any steps to
24 separate that frame or any frame from your other
25 strips of negatives, have you?
26 A. No.
27 MR. KELLY: And if you could, just throw the
28 other one up, too, Steve.
126
1 We'll mark that for identification, also.
2 MR. GELBLUM: 2355.
3
4 (The instrument herein referred to
5 as Negatives contained in plastic
6 sleeving of photographs taken by
7 Mr. Flammer on September 26, 1993,
8 was marked for identification as
9 Plaintiffs' Exhibit No. 2355.)
10
11 Q. (BY MR. KELLY) By the way, did you date
12 those plastic pages on the day you took the pictures?
13 A. Most of the time. I would, if I wasn't
14 just marking the top of the sleeve or the contents, it
15 was probably a date put on it, as well.
16 That one does happen to be marked.
17 Q. Okay.
18 And that was done at the time you put the
19 sleeve --
20 A. Correct.
21 Q. And the other one had a date?
22 A. Yes.
23 Q. And you indicated you've had control over
24 these the during the time you've had them?
25 A. Yes.
26 Q. Pages of negatives; is that correct?
27 A. Yes.
28 MR. BAKER: Objection. Leading.
127
1 THE COURT: Overruled.
2 Q. Could I see the group photo one more
3 time.
4 MR. FOSTER: 7?
5 MR. KELLY: Yeah.
6 If you could, back off a little bit.
7 Q. (BY MR. KELLY) Mr. Flammer, could just
8 identify the people in here one more time.
9 Who's that individual right there
10 (indicating)?
11 MR. BAKER: Objection. Irrelevant.
12 THE COURT: Overruled?
13 A. That is Bill Munson.
14 MR. KELLY: Back off a little bit, Steve.
15 Q. (BY MR. KELLY) And that individual right
16 there (indicating)?
17 A. That is Danny Lynch.
18 Q. Who is Danny Lynch?
19 A. Danny Lynch is the -- I believe he's the
20 PR director for the team.
21 Q. Okay.
22 This individual right here?
23 A. That is Mike Lacata.
24 Q. Mr. Simpson?
25 A. Mr. Simpson.
26 Q. This individual right there?
27 A. Jerry Flashner.
28 Q. That gentleman right here? (Indicating.)
128
1 A. Ed Flammer.
2 Q. Your father?
3 A. Yes.
4 Q. He's the one responsible for getting you
5 this shoot?
6 A. Yes.
7 MR. KELLY: I have no further questions, Your
8 Honor.
9 THE COURT: Okay. Cross-examine.
10
11 CROSS-EXAMINATION
12 BY MR. BAKER:
13 Q. Mr. Flammer, you testified that no one
14 from Mr. Simpson's attorneys tried to contact you.
15 We just tried to contact you in the hall,
16 and you won't talk to us, would you?
17 A. That is correct.
18 Q. In other words, you've been informed by
19 Mr. Kelly not to discuss anything with any of the
20 defense lawyers for Mr. Simpson; isn't that true?
21 A. That is not true.
22 Q. Didn't you just tell my son, Phillip,
23 that you couldn't talk even -- you couldn't discuss
24 even whether or not Mr. Scull was your friend, because
25 Mr. Kelly told you not to?
26 A. That is not true.
27 Q. You didn't just say that you had to
28 discuss --
129
1 A. I did say Mr. Kelly is aware of that
2 situation. I didn't know -- and he introduced himself
3 as your son. He could have been anyone, anybody from
4 the media, or anyone along those lines.
5 Q. You follow the criminal trial, the
6 Simpson criminal trial?
7 A. Not very closely.
8 Q. Now, your lawyer is Mike Kramer, is he
9 not? Mark Kramer?
10 A. Mark Kramer.
11 Q. And Mark Kramer, on Monday,
12 January 6, 1997, was on -- on television, talking
13 about these photos, right?
14 A. I can't say for sure, but. . .
15 Q. Now, did you tell your attorney that you,
16 in fact, followed the O.J. Simpson criminal trial
17 closely?
18 MR. KELLY: Objection. Calls for hearsay.
19 MR. PETROCELLI: We have a privilege.
20 MR. KELLY: Possess a privilege.
21 THE COURT: Sustained.
22 MR. BAKER: I'll show the Court the transcript
23 where the attorney waived the privilege, Your Honor.
24 THE COURT: The attorney can't waive the
25 client's privilege.
26 Q. (BY MR. BAKER) Is it your testimony that
27 you didn't follow the O.J. Simpson criminal trial at
28 all, sir?
130
1 A. Not at all, but, I -- I mean, I did
2 follow --
3 Q. And is it your testimony that these
4 photos never came to mind, from September of 1993,
5 after the criminal trial started in June of -- strike
6 that -- in September of 1994, throughout the whole
7 time period, until December 28, 1996, right?
8 A. That is correct.
9 Q. And Mr. Scull, Harry Scull, Jr., he's a
10 friend of yours, right?
11 A. Not really, not a friend.
12 Q. Well how many freelance photographers are
13 there in Buffalo?
14 A. There are quite a few. I can't tell you
15 an exact amount.
16 Q. How many of you get on the -- he's about
17 your age?
18 A. He's a little bit older.
19 Q. He's about your age, though, isn't he?
20 A. Probably pretty close.
21 Q. And he was on the football field that
22 day, was he?
23 A. Yes, he was.
24 Q. Did you see him only on the football
25 field that day?
26 A. I don't recall.
27 Q. Did you ever check to see whether or
28 not -- the log to determine whether or not you and
131
1 Mr. Scull had ever signed in for the September 26,
2 1993 game was missing at Buffalo?
3 A. Yes, it is missing.
4 Q. And it's the only log that is missing in
5 four years for the sign-in of anybody that went on the
6 field; isn't that right, sir?
7 MR. KELLY: Objection. Calls for hearsay, Your
8 Honor.
9 THE COURT: Sustained.
10 Q. (BY MR. BAKER) You are aware that that's
11 the only log that is missing in four years of games
12 for people who went on Rich Field, 'cause you tried to
13 get that log, didn't you?
14 MR. KELLY: Same objection. Calls for hearsay;
15 argumentative; speculative; no foundation.
16 MR. BAKER: And any other known objection known
17 to God or man.
18 MR. KELLY: Et cetera.
19 THE COURT: I'll sustain it only as to form.
20 Sounds like two questions.
21 Q. (BY MR. BAKER) Okay. We'll have one at
22 a time.
23 MR. KELLY: Split objection in half.
24 Q. (BY MR. BAKER) You attempted to get the
25 log to see if you could prove that you were even
26 there, right?
27 A. I did call, yes.
28 Q. And it is the -- is the only log missing
132
1 in four years, and you learned that in your request to
2 try to find the log?
3 MR. KELLY: Objection. No foundation.
4 THE COURT: Overruled.
5 You may answer.
6 A. Yes.
7 Q. (BY MR. BAKER) And, by the way, sir, you
8 got $41.70 for the first six pictures, right?
9 A. That is correct.
10 Q. And can you tell the ladies and gentlemen
11 of the jury your minimum asking price for these
12 pictures?
13 A. I am not privy to that information.
14 Q. You told there's -- well, let me put it
15 this way:
16 Did your attorney -- you testified we
17 didn't contact you relative to these photos; that is,
18 anybody from Mr. Simpson's team.
19 You don't know how many times we
20 contacted Mark Kramer to find -- to get the negatives,
21 correct?
22 A. He never mentioned it to me.
23 Q. You are well aware that, to determine
24 whether or not a photograph has been altered, if it
25 can be determined at -- at all, you need the original
26 negatives. True?
27 A. True.
28 Q. And you have never allowed the defense to
133
1 see any original negatives. Correct?
2 MR. KELLY: Objection. Argumentative, and as
3 to form, Your Honor.
4 THE COURT: Overruled.
5 THE WITNESS: Can you repeat the question
6 please.
7 Q. (BY MR. BAKER) Neither you nor your
8 attorney has ever allowed anybody from the defense
9 side to view those negatives that you have brought
10 with you today; isn't that true, sir?
11 A. To my knowledge, we have not been
12 contacted about that.
13 Q. You never allowed it, have you?
14 A. Never been contacted, sir.
15 Q. And you don't know if we contacted your
16 lawyer and asked your lawyer. He wouldn't return any
17 calls, right?
18 MR. KELLY: Objection. Argumentative; no
19 foundation.
20 THE COURT: Sustained.
21 Q. (BY MR. BAKER) Now, you copyrighted this
22 photograph, right?
23 A. In other words --
24 Q. Well, I think it's all on the back of
25 every one of those.
26 A. Which photo is that?
27 Q. I don't know. It's just one of them.
28 A. Yeah.
134
1 Q. This is what I'm getting at.
2 A. Sure.
3 Q. And Rob McElroy, he's a freelance
4 photographer around Buffalo, isn't he?
5 A. That is correct.
6 Q. And his main job is not an agent; his
7 main job is freelance photographer?
8 A. Right.
9 MR. KELLY: Objection.
10 Q. (BY MR. BAKER) And this is what you have
11 on the back of every picture:
12 A copyrighted photograph, not to be
13 videotaped, photographed, photocopied, or otherwise
14 reproduced in any way, analog, digital, and cannot be
15 used by any person, organization, or media without the
16 permission of the photographer or his agent. Right?
17 A. Yes.
18 Q. More at 11:00, huh?
19 In any event, the agent is Rob McCelroy,
20 correct?
21 A. Correct.
22 Q. He just happens to be, at a happenstance,
23 the same -- very same agent of Harry Scull, Jr.,
24 right?
25 A. Correct.
26 Q. Just happenstance.
27 And his main job isn't an agent at all,
28 is it?
135
1 A. No.
2 Q. And he's the fellow that sold the Scull
3 photograph to the National Enquirer for $17,000 and
4 gave Scull $5,000, right?
5 MR. KELLY: Objection. Calls for hearsay;
6 argumentative.
7 THE COURT: Sustained.
8 Q. (BY MR. BAKER) Well, do you know whether
9 Mr. Rob McCelroy sold that Scull photo to the National
10 Enquirer for $17,000?
11 MR. KELLY: Objection. Calls for hearsay
12 again, Your Honor.
13 THE COURT: Sustained.
14 Q. (BY MR. BAKER) You signed a contract
15 with Mr. Rob McCelroy, correct?
16 A. Yes.
17 Q. And you are well aware that you're
18 probably going to get 40, 50 thousand bucks for those,
19 rather than $41.70; isn't that right?
20 MR. KELLY: Objection. Argumentative. He
21 indicated he has no knowledge.
22 THE COURT: Overruled.
23 A. I have no idea.
24 Q. (BY MR. BAKER) Are you sitting here,
25 sir, telling this jury, you have no idea as to the
26 amount of money that you have put down as a minimum
27 amount, you'll sell these photos?
28 A. That has not -- I have not been privy to
136
1 any of this information.
2 Q. Have you tried to insulate that from you
3 because Mr. Kelly flew up to Buffalo and told you,
4 don't have any knowledge of how much money, because
5 Mr. Baker sure as heck will ask you how much money
6 you're getting for those photos.
7 MR. KELLY: Objection. Interesting, but
8 argumentative, Your Honor.
9 THE COURT: Overruled.
10 Q. (BY MR. BAKER) Did he tell you words to
11 that effect, sir?
12 A. Can you repeat the question again?
13 Q. Yeah, sure.
14 Did Mr. Kelly fly up to Buffalo from his
15 hometown in New York and tell you, look, isolate
16 yourself from any dollar amounts from these photos;
17 isolate yourself. Don't know what you're going to get
18 from those photos, so that when Baker asks you a
19 question about the photos, you won't have the answer?
20 A. It was not direct from Mr. Kelly.
21 Q. Who's it directed from?
22 A. My attorney.
23 MR. KELLY: Objection. Calls for hearsay;
24 privilege.
25 THE COURT: I didn't get the last question,
26 when you interrupted.
27 What's the last question?
28
137
1 (The reporter read the record as
2 follows:
3Q. Who's it directed
4 from?
5 THE COURT: Overruled.
6 MR. BAKER: Did we get the answer in, because I
7 didn't -- did we get an answer in?
8 THE COURT REPORTER: The answer was, "my
9 attorney."
10 Q. (BY MR. BAKER) So it was your attorney
11 who told you not to know how much money you're going
12 to get from this?
13 A. I don't know if those were the exact
14 words.
15 Q. But pretty close?
16 MR. BAKER: I can see, Your Honor. We're
17 going to lunch.
18 THE COURT: 1:30, ladies and gentlemen.
19 Don't talk about the case. Don't form or
20 express any opinions.
21
22
23 (At 12:05 P.M., a luncheon recess
24 was taken until 1:30 P.M. of the
25 same day.)
26
27
28
138
1 SANTA MONICA, CALIFORNIA; TUESDAY, JANUARY 14, 1997
21:45 PM
3 DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE
4
5 APPEARANCES:
6 (REGINA D. CHAVEZ, OFFICIAL REPORTER)
7
8 (Jurors resume their respective
9 seats.)
10
11 CROSS-EXAMINATION
12 BYMR. BAKER:
13 Q. Now, Mr. Flammer, did somebody buying
14 your photos -- did they pay for your airfare?
15 A. Can you repeat the question.
16 Q. Did one of the media groups, did they pay
17 for your airfare out here?
18 A. Not to my knowledge.
19 Q. How many appearances do you have
20 scheduled as soon as you get off the stand to go on
21 television?
22 A. Zero.
23 Q. Not a one?
24 A. Not a one.
25 Q. Do you have a PR guy in addition to the
26 agent and lawyer you have?
27 A. No, sir.
28 Q. Now, have you been informed of any dollar
139
1 amount of offers made on your photos?
2 A. No, sir.
3 Q. Not one?
4 A. Not one.
5 Q. And you've made sure that you don't get
6 informed of that until after you get off this witness
7 stand, right?
8 A. Can you repeat that question.
9 Q. You have made sure that you're not
10 informed of any of the offers that you have to sell
11 those photos so that you and Rob McElroy don't make
12 money until after you get off the witness stand,
13 correct?
14 A. That is correct.
15 Q. All right.
16 And have you tried -- have you tried to
17 sell those photos to the National Enquirer?
18 A. Personally?
19 Q. Or do you know if your lawyer or your
20 agent has?
21 A. I do not have that knowledge.
22 Q. And have you insulated -- attempted to
23 insulate yourself from that knowledge as well, sir?
24 A. Yes.
25 Q. That was particularly so you could
26 testify in this case, right?
27 A. Not particularly.
28 Q. Were you told if you testified in this
140
1 case the price of the photos was increased?
2 A. No.
3 Q. Not at all?
4 A. No.
5 Q. Now, you told this jury that you
6 discovered those photos on the 27, right?
7 A. That is correct.
8 Q. Friday, December 27, you told them that
9 under penalty of perjury?
10 A. Right.
11 Q. You told this Court, by way of
12 declaration, that you discovered the photos under
13 penalty of perjury on the weekend of the 28, 29,
14 right? Let me show it to you.
15 A. Okay.
16 Q. I don't want to -- this is from the
17 official court file filed on this case.
18 That is your signature?
19 A. That is correct.
20 Q. That was prepared, of course, by
21 Mr. Kelly for you to sign?
22 A. I believe so.
23 Q. And he was working with your attorney,
24 right?
25 A. Correct.
26 Q. And now, so you said there, the 28, 29,
27 under penalty of perjury, you told this jury the 27?
28 A. Friday being part of that weekend, I
141
1 would consider it . . .
2 Q. Tell the ladies and gentlemen of the jury
3 if you have December 27 anywhere on that declaration,
4 sir?
5 A. No, it is not.
6 Q. Okay.
7 Now, relative to -- is it your testimony,
8 sir, that you were O.J.'ed out; that's why you didn't
9 discover these things for two and a half years after
10 the murders?
11 A. Can you repeat that question.
12 Q. Well, your attorney indicated that you
13 were O.J.'ed out after the criminal trial, that's why
14 you didn't discover the photos, when he was
15 interviewed by Katie Couric; is that true?
16 MR. KELLY: Objection, calls for hearsay, Your
17 Honor, what his attorney said.
18 THE COURT: Overruled.
19 A. I don't remember personally telling him
20 that, no.
21 Q. (BY MR. BAKER) I don't mean to be flip,
22 and after the criminal trial, I was just O.J.'ed out.
23 Do you know where that phrase came from?
24 MR. KELLY: Objection.
25 THE COURT: That's hearsay, sustained.
26 Q. (BY MR. BAKER) Do you know if that's the
27 exact phrase Scull used for his failure to have
28 purportedly found his photographs for a year and a
142
1 half?
2 MR. KELLY: Objection.
3 THE COURT: Sustained, calls for hearsay, Your
4 Honor.
5 THE COURT: Sustained.
6 Q. (BY MR. BAKER) Now, Scull's depo was
7 taken in Buffalo on July 1, 1996.
8 You were aware of that?
9 A. If you say.
10 Q. Well, it was on all -- it was on every
11 station in Buffalo, wasn't it?
12 A. Could have been.
13 Q. Well, it was in the newspaper?
14 A. Could have been.
15 Q. Well, did you see it, hear about it?
16 MR. KELLY: Objection, relevance, Your Honor,
17 also argumentative.
18 THE COURT: Overruled. I presume it's
19 foundational to something.
20 A. July 1, I was personally and probably on
21 the golf course, that's why I didn't see it.
22 Q. Well, it was -- for days, it was in the
23 paper that we were back there, we took Mr. Scull's
24 photo --
25 Is it your testimony, sir, that you never
26 heard when Mr. Scull, from Buffalo, New York, was
27 getting paid for a photograph of O.J. Simpson showing
28 the shoes; is that your testimony?
143
1 A. No, that's not my testimony.
2 Q. So even when you heard about Scull
3 getting paid for it, you have nothing -- you don't --
4 nothing triggers your mind about this momentous event
5 where your father was in the photograph and they were
6 celebrating 20 years, after O.J. Simpson had rushed
7 for 2,000 yards, right?
8 A. Not particularly.
9 Q. Nothing.
10 And it just so happened that on December
11 27, 8 or 9, that miraculously, you go oh, my God,
12 there's 30 photographs of O.J. Simpson with shoes,
13 right?
14 A. Yes.
15 Q. You -- you have -- you keep the invoice,
16 you keep the check, and you don't find the photographs
17 or the negatives for two and a half years; is that
18 right?
19 A. That's correct.
20 I believe I testified earlier, sir, that
21 I'm not actively in the freelance business. Now I'm
22 more along the lines working for the printing and
23 engraving company.
24 Q. I see.
25 So you kept all of that, and 30 months
26 later you found this, and it's kind of like finding a
27 Rembrandt in your attic?
28 A. You can liken it to that.
144
1 Q. You're just out here going to make a
2 whole bunch of money and be on television and just do
3 great with this, right?
4 A. If that's what happens.
5 Q. You bet.
6 MR. BAKER: Thanks.
7
8 REDIRECT EXAMINATION
9 BY MR. KELLY:
10 Q. Couple minutes, Mr. Flammer.
11 First of all, back in 1993 and '94, would
12 it be fair to say that Mr. Simpson was a very popular
13 figure up in Buffalo?
14 A. Sure.
15 Q. Was he a popular figure within the Bills
16 organization?
17 MR. BAKER: Objection, outside the scope.
18 THE COURT: Sustained.
19 Q. (BY MR. KELLY) Were you familiar with a
20 lots of the people in the Bill's organization in 1993,
21 1994?
22 A. Yes.
23 MR. BAKER: Outside the scope.
24 THE COURT: Sustained.
25 Q. (BY MR. KELLY) Mr. Flammer, did you have
26 any discussions with your attorney regarding making
27 those negatives available to the defense as well as us
28 in this particular case?
145
1 A. Yes, I did.
2 Q. And did you have any objection at any
3 time to making those negatives available to
4 Mr. Simpson's defense team?
5 A. Not at all.
6 Q. As a matter of fact, the negatives are
7 being held by the court right now, are they not?
8 A. I believe so.
9 Q. And do you have any objection whatsoever
10 to leaving them with the court for a day or two so
11 Mr. Simpson or his experts can examine them?
12 A. Not at all.
13 MR. KELLY: I have nothing further.
14 MR. BAKER: Nothing further.
15
16 RECROSS-EXAMINATION
17 BY MR. BAKER:
18 Q. Oh, did you call your lawyer as we asked
19 you to over the break since you -- and find out how
20 much they had been offering?
21 A. I attempted to get a hold of Mr. Kramer
22 and Mr. Kramer is in route back to Buffalo.
23 Q. Wait a minute. You didn't ask
24 Mr. Kramer -- you testified earlier that you didn't
25 know whether Mr. Kramer had been contacted by us at
26 all this morning, you testified to that, did you not?
27 A. You asked me to --
28 Q. Did you not testify this morning that you
146
1 didn't know whether Mr. Kramer had been contacted by
2 any of Mr. Simpson's lawyers?
3 A. That's correct.
4 Q. You didn't contact him over the lunch
5 hour, correct, you weren't able to reach him?
6 A. I was not able to reach him.
7 Q. You just testified to Mr. Kelly right in
8 this courtroom that we had contacted your attorney and
9 you had no objection if he turned over the negatives
10 to us?
11 MR. KELLY: I believe that misstates his
12 testimony, he said that he had no objection, he
13 discussed with his attorney.
14 MR. BAKER: Let him answer the question.
15 Do you have an objection?
16 MR. KELLY: I have an objection to the form of
17 the question, misstates his testimony.
18 THE COURT: Answer the question if you can.
19 Q. (BY MR. BAKER) Are you --
20 A. Can you repeat your question, please.
21 Q. You're not telling this jury that you
22 have information that we attempted to get the
23 negatives, and your lawyer said you can do whatever
24 you want and -- or you can look at the negatives;
25 you're not attempting to tell this jury that, are you,
26 Mr. Flammer?
27 A. Can you repeat that one more time.
28 Q. Are you attempting to tell this jury that
147
1 we made efforts to get the negatives, these 30
2 photographs, and that you said to your lawyer, go
3 ahead, give them to them, they can do whatever they
4 want with the negatives; you're not attempting to tell
5 this jury that, are you, sir?
6 A. Yes, I am.
7 Q. And you testified this morning --
8 A. Um-hum.
9 Q. -- that you didn't know whether we had
10 ever even contacted your attorney, correct, didn't
11 you?
12 A. That's correct.
13 Q. Did you or did you not? And you haven't
14 since that testimony came into this courtroom, you
15 have not contacted or been able to speak with your
16 attorney, true?
17 A. Correct.
18 MR. BAKER: Thank you.
19
20 REDIRECT EXAMINATION
21 BY MR. KELLY:
22 Q. Mr. Flammer, you instructed your attorney
23 to make the negatives available to Mr. Simpson's
24 lawyers, did they not?
25 MR. BAKER: That's leading.
26 A. That's correct.
27 MR. BAKER: Move to strike the question and the
28 answer.
148
1 THE COURT: Overruled.
2 Q. (BY MR. KELLY) And relative to the time
3 you located those negatives, when did you give him
4 that instruction?
5 A. Immediately.
6 Q. Okay.
7 One more thing. When you were asked
8 about insulating yourself, is it true that the reason
9 you insulated yourself from the amount of the sale was
10 to make your testimony not biased or colored here at
11 trial?
12 MR. BAKER: Leading, Your Honor.
13 THE COURT: Sustained.
14 MR. KELLY: I have no further questions.
15 MR. BAKER: Nothing further.
16 THE COURT: You're excused.
[Irrelevant testimony deleted]
20 MR. GELBLUM: Plaintiffs call Gerald Richards.
21
22GERALD RICHARDS,
23 called as a witness on behalf of the Plaintiffs, was
24 duly sworn and testified as follows:
25
26 THE CLERK: You do solemnly swear that the
27 testimony you may give in the cause now pending before
28 this court shall be the truth, the whole truth and
171
1 nothing but the truth, so help you God?
2 THE WITNESS: I do.
3 THE CLERK: And, sir, if you would please state
4 and spell your name for the record.
5 THE WITNESS: Yes, ma'am.
6 It is Gerald B. Richards,
7 R-i-c-h-a-r-d-s.
8
9 DIRECT EXAMINATION
10 BY MR. GELBLUM:
11 Q. Tell us your occupation, Mr. Richards.
12 A. I'm currently a private consultant, and
13 lecture in the field of questioned document and
14 photographic examinations.
15 In addition to that, I'm currently under
16 contract to the FBI laboratory to assist in training
17 new examiners in the special photographic unit and
18 also assist with various case work on a one- or
19 two-day a week basis.
20 I'm also assistant professorial lecturer
21 at George Washington University graduate school where
22 I teach two forensic courses; one in the field of
23 questioned document examination and one in the field
24 of forensic photography, which as a matter of fact is
25 going as we speak.
26 Q. Do you have that covered for you?
27 A. Yes.
28 Q. Tell the jury what forensic photography
172
1 is, please?
2 A. Yes. Forensic photography basically --
3 the word forensic means any science as it relates to
4 law. Forensic photography is any type of photography
5 that would relate to a legal matter such as crime
6 scene photography, accident photography, studio
7 photography where we use ultraviolet or infrared
8 portions of the spectrum to view different pieces of
9 evidence, macrophotography, microphotography, where we
10 look for -- macrophotography, where we look basically
11 at very small things microscopically.
12 Macrophotography would be very small photographs, in
13 essence.
14 Q. Can you tell -- briefly tell the jury
15 what your formal education is, starting with college?
16 A. Yes. I have a Bachelor of Science degree
17 in photography. I also have a Master of Science
18 degree in secondary education.
19 In addition to that, I have taken several
20 graduate level courses from G.W. University -- George
21 Washington University, excuse me, in the area of
22 forensic science, including questioned document
23 examination, law courses, et cetera.
24 I've also taken -- taken a forensic
25 photography course through University of Virginia at
26 the FBI Academy at Quantico, Virginia.
27 Q. Did you used to work for the FBI?
28 A. Yes. Yes, sir. I was a special agent
173
1 with the FBI for approximately 23 years.
2 Q. Did you -- What divisions of the FBI did
3 you work in?
4 A. Well, initially, upon my appointment back
5 in the early 70's as a special agent, I was assigned
6 to a 16-week training school at FBI Academy, and from
7 there I went on to the Atlanta and Baltimore divisions
8 as an investigator in the field.
9 At that point I was promoted to a
10 supervisory position at FBI headquarters, wherein I
11 was assigned to the FBI laboratory as a supervisor in
12 that particular division.
13 Upon arrival, I was placed into a
14 three-year training program where basically for the
15 following three years, I did virtually nothing but
16 work under the supervision of more experienced
17 examiners, attend lectures, go to different schools,
18 visit different companies such as Kodak or Polaroid or
19 what have you, to determine how and to what breadth
20 examination is needed to be or could be provided for
21 the bureau.
22 Q. Is that examinations of photographs
23 you're talking about?
24 A. Both examinations of photographs and
25 documents, questioned documents.
26 Q. And that was a three-year program?
27 A. Yes, that was a three-year program.
28 Q. You receive any certification at the end
174
1 of that program?
2 A. Upon the completion of that program, the
3 Director of the FBI certified me in both the area of
4 questioned documents examination and also the
5 examination of photographic evidence.
6 From that particular point in time, I
7 spent approximately the next ten years on the bench,
8 working cases day after day until such time I was
9 promoted to a unit chief's position in the document
10 operations and research unit of the laboratory.
11 I was in that position for about a year,
12 and then laterally transferred to the special
13 photographic unit, where I became unit chief of that
14 particular unit until my retirement in 1963 -- excuse
15 me -- 1993.
16 Q. So how long were you the head of the --
17 what is it, special photographic unit at the FBI?
18 A. Even though I worked in the unit for
19 about ten years, I was chief of it for about six.
20 Q. Okay.
21 That was up until 1993?
22 A. Yes.
23 Q. And you retired at that point?
24 A. Yes, in December of '93.
25 Q. Do you belong to any professional
26 organizations, sir?
27 A. Yes, I do. Excuse me for a -- may I stop
28 for a little glass of water here. My voice is giving
175
1 out.
2
3(Pause for witness to take a sip of
4water.)
5
6 A. Yes, I do. I belong to the American
7 Academy of Forensic Sciences, which I am a fellow and
8 have been a fellow for approximately 20 years in that
9 organization.
10 Q. Is it -- what's a fellow?
11 A. Well, basically it's a ranking within the
12 organization. You have to achieve certainly -- you
13 have to present papers and apply for the different
14 levels. It is a level within the organization itself.
15 Q. Is it the lowest level?
16 A. No. It would be the highest level in the
17 organization.
18 Q. What is the American Academy of Forensic
19 Sciences?
20 A. It is the largest forensic organization
21 in the world, and it consists of about, I think,
22 somewhere in the vicinity of 22 or 2300 members,
23 forensic scientists from around the world.
24 Q. Any other professional organizations you
25 belong to?
26 A. Yes. I'm a member of the American Board
27 of Questioned -- Forensic Questioned Document
28 Examiners, which I am also a diplomat in.
176
1 I'm a member of the American Society of
2 Photograph Photogrammetry and Remote Sensing, which I
3 have been certified as a certified photograph
4 photogrammetrist.
5 Q. What is that?
6 A. A photogrammetrist is a person who, to
7 simplify it, basically makes measurements from
8 photographs.
9 A good example of that might be, every
10 map you look at, people don't go out and actually
11 measure the map, what they do is many photographs are
12 made and they make the measurements from the
13 photographs and create a map where you -- we use the
14 same type of things, like trying to determine the
15 approximate height of a bank robber from the
16 photographs.
17 Q. You belong to any other professional
18 organizations?
19 A. Yes. I'm twice past president of the
20 Mid-Atlantic Association of Forensic Scientists, which
21 is one of the seven regional forensic organizations in
22 the United States.
23 I'm also a member of EPIC, the Evidence
24 Photography International Council, and a member of the
25 Photographic Historic Society of New England, which
26 is, I believe, the largest historic -- photographic
27 historic society in the U.S.
28 Q. Have you received any significant awards
177
1 in your career, sir?
2 A. Yes. I have received an audiovisual
3 award from the Federal Photographers Association, and
4 in addition to that, several years ago I received a
5 medal from the director of the CIA for, in essence,
6 ten years of work in the area of providing different
7 services to the intelligence organizations and
8 communities in both photography and document work,
9 such as doing examinations of missing-in-action
10 servicemen, et cetera. It's called the National
11 Intelligence Medal of Achievement.
12 Q. Have you published any articles in the
13 area of photographic examination?
14 A. Examination per se, yes and no, and I'll
15 explain it to you.
16 I have published articles such as the
17 "Applications of Electronic Video Techniques to
18 Infrared and Ultraviolet Examinations." Even though
19 it was described in a technique, it was regarding the
20 technique as it applies to examinations.
21 I also wrote an article, basically the
22 FBI's past, present, and I believe it's -- I forgot
23 the title. It's been a number of years ago. "Future
24 Applications of Photogrammetry."
25 I wrote another article, co-authored
26 actually, it was a two-part article on image
27 processing organization and systems for legal
28 applications, which was, as I said, co-authored with
178
1 another individual.
2 Q. Let me show you --
3 MR. GELBLUM: We'll mark next in order --
4 THE CLERK: 2357.
5 MR. LEONARD: Do you need this back?
6 MR. GELBLUM: No, I have it.
7 What's the number?
8 MR. FOSTER: 1828.
9 Q. (BY MR. GELBLUM) I believe I'll show you
10 what's been marked as 1828.
11 THE CLERK: So we don't need --
12 MR. GELBLUM: Yeah. I apologize.
13 Q. (BY MR. GELBLUM) Is that your curriculum
14 vitae?
15 A. Yes, sir, it is.
16 Q. Does that list -- I won't take the time
17 to go through them, but various papers that you have
18 presented to professional meetings and lectures you've
19 given?
20 A. Yes, it does.
21
22 (The instrument herein referred to
23 as curriculum vitae of
24 Gerald Richards was marked for
25 identification as Plaintiffs'
26 Exhibit No. 1828.)
27
28 Q. How long have you been working in the
179
1 field of photographic examination?
2 A. I've actually been working in photography
3 for many, many, many years. All the way from high
4 school on through -- as I said, I have a Bachelor of
5 Science degree in photography. But in photographic
6 examination per se, since I arrived at the FBI
7 laboratory and began my training period back in the
8 early 70's, approximately 20-some years.
9 Q. 20-some?
10 A. Yes.
11 Q. Over those 20-plus years of working --
12 examining photographs, have you become familiar with
13 the science of alteration of photographs, when a
14 photograph's been altered?
15 A. Yes, sir, I have.
16 Q. Have you learned to detect alteration in
17 photographs?
18 A. Yes, sir, I have.
19 Q. Now, in connection with this matter, did
20 you examine various materials relating to a photograph
21 taken by Harry Scull of Mr. Simpson at a football game
22 on September 26, 1993?
23 A. Yes, sir, I did.
24 Q. What did you examine?
25 A. I examined two sets of negatives from two
26 rolls of film. In addition to the negatives, I also
27 examined contact sheets of those negatives and also
28 various enlargements which were all produced under my
180
1 direction.
2 I examined them basically through a
3 number -- a number of physical techniques.
4 Q. What techniques?
5 A. In essence, most of them are visual or
6 using some type of measuring instrument. In this
7 particular case, I used a Bausch & Lomb
8 stereomicroscope having a zoom capability -- it was a
9 zoom microscope of I believe 32. It can go up to as
10 high as 120X in that particular case.
11 Also, I used various magnifiers or
12 loupes, as they are called in the profession, various
13 degrees of magnification, various types of light
14 sources such as direct light, transmitted light,
15 coaxial light, which means the light comes down --
16 straight down from the top or from the microscope.
17 Same view you're looking at.
18 We used a number -- I used a number of
19 different measuring devices, including just simple
20 scales and also highly accurate glass scales to make
21 measurements of the negatives and proof sheets.
22 Q. Were you examining the negatives and the
23 proof sheets and the print to determine whether you
24 could find any signs of alteration?
25 A. Yes, I was asked specifically to
26 determine if the photograph of Mr. Simpson, if he had
27 any -- he or any portion of his body, in particular
28 the shoe area, had been altered or changed to any
181
1 degree.
2 Q. Did you pay particular attention to the
3 shoe area?
4 A. Yes, I did.
5 Q. What were some of the things you were
6 looking for?
7 A. Well, there's a number of things you're
8 looking for. You have two areas of -- to examine,
9 really, if you break them down.
10 The first area is the film itself. Is
11 the film -- the piece of film that you are looking at
12 that's in question in here or the picture of
13 Mr. Simpson, is it part of the remainder of the roll
14 that you're dealing with. So you can also use that as
15 part of your examination.
16 In order to do that, we must look at
17 things like the code numbers along the side that tells
18 what type of film it is.
19 Also, in addition to that, any scratches
20 or marks that are continuous, made either by the
21 camera, the processor, or any other artifact along
22 that line to show a continuation along the entire
23 roll.
24 And then in this case -- this was a cut
25 roll. If the roll is continuous, you don't have to
26 worry too much about any further type of examination
27 as far as cut edges go.
28 In this case, the frames were cut up,
182
1 which is natural for people storing photographs like
2 that.
3 We wanted to compare each one of the cut
4 edges to make sure that, say, frame 1 and 2 matched 3
5 and 4, et cetera, on down throughout the roll, and
6 nothing was substituted in between.
7 That was done both visually and
8 microscopically, and in addition to that, I believe I
9 used a micrometer to make sure that the emulsion was
10 the same thickness through the entire roll.
11 Q. What's a micrometer?
12 A. A micrometer is a measuring device. It's
13 a small metallic device that measures the thickness of
14 objects.
15 Q. Did you examine the grain of prints in
16 the --
17 A. Yes. That would get into the second
18 portion of the examination, which would be examining
19 the image itself. That's possibly more extensive than
20 the first part, where we're basically looking for
21 physical defects, scratches, like I said, anomalies in
22 the film, which you do find from time to time,
23 anomalies in the film.
24 In this particular case I also looked at
25 the grain and the grain structure under a variety of
26 magnifications, including high magnification. In this
27 particular case, I scanned the entire negative
28 millimeter by millimeter across the entire negative
183
1 until I viewed it all.
2 In addition to that, we looked for image
3 structure and I -- what I mean by image structure, is
4 the image structured correctly as it should be
5 photographically. If we have an image of an object
6 such as Mr. Simpson standing there, where does the --
7 where does the image start to blur in the background
8 and where does it start to blur in the foreground.
9 That's called depth of field. Depending on the lens
10 being used, that would make that -- that cutoff point
11 a different -- different point.
12 Also things -- we look for things like
13 perspective, is the perspective in the photograph
14 correct.
15 Also, dimensional sizes, are all the
16 parts we're looking at the right size for the plane or
17 the position the object should be in, or are some too
18 big or some too small where they shouldn't be or out
19 of angle where they shouldn't be.
20 We also look for things called cut lines.
21 One of the most common ways to alter
22 photographs is a technique called cut-and-paste. When
23 you cut something out, you paste it in and make a copy
24 of it, that leaves very distinctive lines. Many times
25 you can detect, also, the shadows of the object cut
26 out probably won't match exactly the shadows that are
27 within the photograph, or the intensity -- or the
28 light intensity itself, and as we mentioned before,
184
1 the grain structure -- the grain structure may be
2 different because of different films.
3 This is just a few of the things we're
4 looking for continuously as we're examining the
5 different pieces of film.
6 Q. Did you work for retouching marks?
7 A. Yes; retouching marks, also, from either
8 a brush, crayon, scalpel or air brush. All of them
9 are used in the retouching process.
10 Q. Did you look for signs of digital
11 alteration?
12 A. Yes. We looked for signs of digital
13 alteration. And basically what this is, is, instead
14 of cutting and pasting, you use actual photographs --
15 it's done in the computer, where the image is, what
16 they call digitized, or broken down into very small
17 pieces, actually, little, teeny squares, starting at
18 one end, and broken down into squares all along one
19 row, and then the next row down, next row down, until
20 you form the parts of the entire image.
21 Then you usually -- those parts are
22 enlarged -- whatever manipulation is being done, it is
23 done, and then it's reduced again. Well, many times,
24 when it's enlarged and reduced again, you get what you
25 call pixelization. What you can see, the little,
26 jagged edges of the square, particularly on the edges,
27 where things go from black to white or very distinct
28 color or shade change. Many times, it's very evident.
185
1 Q. Just so we're clear, I want to put this
2 up.
3 Is this the photograph we're talking
4 about?
5 A. Yes, this was the photograph; yes, sir.
6 Q. That's the document you're looking at to
7 determine whether there are any alterations?
8 MR. FOSTER: It's an enlarged version of 1830.
9 MR. GELBLUM: Give it another number.
10 Next number, please.
11 THE CLERK: Wait.
12 2357.
13 MR. GELBLUM: Thank you.
14 (The instrument herein referred to
15 as an enlargement of Exhibit 1830
16 was marked for identification as
17 Plaintiffs' Exhibit No. 2357 .)
18
19 Q. (BY MR. GELBLUM) As a result of your
20 examination of the negatives, the contact sheets, and
21 the prints, did you find any indication, whatsoever,
22 of any alteration anywhere in this photograph?
23 A. After close examination of this
24 photograph, I could find no indication whatsoever of
25 any type of idiosyncrasy to it, abrasion, any sign of
26 touch-up, any sign of alteration to any portion of the
27 photograph, and particularly to the shoe area.
28 Q. Did you find anything that even raised
186
1 any suspicions in your mind?
2 A. No, sir, I did not.
3 Q. Did you come to any conclusion as a
4 result of your examination as to whether anybody
5 changed the shoes that Mr. Simpson is wearing in that
6 photograph?
7 In other words, inserted new shoes into
8 the photograph?
9 A. Well, normally, I'm not fortunate enough
10 to get this good of a photograph. Normally, the
11 photographs I get are usually very poor quality and do
12 not allow me to come to a positive conclusion.
13 But in this particular case, there's no
14 doubt in my mind regarding the shoes in this
15 particular photograph, that these have not been
16 altered or changed in any way.
17 Q. No doubt?
18 A. No doubt.
19 Q. All right.
20 Have you also had the opportunity, sir,
21 to examine photographs taken before the same football
22 game by an E. J. Flammer?
23 MR. LEONARD: Objection. I move to side bar.
24 THE COURT: Approach the bench.
25
26 (The following proceedings were
27 held at the bench, with the
28 reporter.)
187
1
2 MR. LEONARD: I can't believe he asked the
3 question. This is exactly the area that you excluded
4 yesterday. This is -- this is a violation --
5 THE COURT: I haven't excluded it; I gave you
6 the opportunity to take it up.
7 MR. BAKER: Wait a minute. You told us
8 yesterday that they couldn't put him on until
9 Thursday.
10 THE COURT: Yeah. I didn't exclude it.
11 MR. BAKER: Well --
12 THE COURT: Now you want to wait till Thursday?
13 Fine.
14 MR. BAKER: Wait.
15 MR. GELBLUM: He's not going to testify as to
16 authenticity of the Flammer photos; he's going to
17 testify as to the effect of his examination of the
18 Flammer photos on his opinion about the Scull photo.
19 MR. LEONARD: It's the same --
20 THE COURT: Excuse me.
21 MR. GELBLUM: I'm not going to ask him if he
22 thought the Flammer photos are authentic; I'm going to
23 ask him whether his examination of the Flammer photos
24 have any impact on his opinion of the Scull photos.
25 I'm not going to ask him anything about the
26 authenticity.
27 MR. LEONARD: It's the same thing. It's a
28 sandbag. What am I supposed to do then? The
188
1 implication is that he examined them, and we have no
2 way to combat that at this point. This is not right.
3 That's exactly what he were trying to avoid.
4 MR. PETROCELLI: I want to get my two cents in
5 here.
6 I offered this guy for deposition
7 yesterday, if they want, on the Flammer. We're
8 continuing to offer him up on Flammer after court
9 today, tomorrow morning. He's in town now.
10 We would like it separate and apart,
11 independent from this examination, which has nothing
12 to do with authenticity itself and alteration.
13 What we would like to propose is that, if
14 they want, they can take his deposition, so we can put
15 him on for that separate purpose before we rest our
16 case this week.
17 But in terms of this issue, he is simply
18 assuming that picture, you know, the Flammer photos
19 are authentic. It does have an impact on that
20 opinion.
21 We asked the same questions of
22 Mr. Groden. Mr. Groden testified that, assuming the
23 photos were authentic, the Flammer photos, they would
24 affect his opinion. He's entitled to go into that
25 same area.
26 And lastly, I would like to add for the
27 record here that, Mr. Simpson, yesterday -- and I have
28 the testimony right up on the screen on the
189
1 computer -- said that these Flammer pictures were
2 bogus, too; thereby, for the first time putting that
3 issue into play in this case. He said, that's me, but
4 that's not my shoes. He directly challenged the
5 authenticity of the photos.
6 THE COURT: Well, from an evidentiary
7 standpoint, I think that's clearly what I did tell the
8 defense; that they had an opportunity to take it up.
9 I assume they're taking it up.
10 MR. BAKER: We are taking it up. Not only
11 that, this belated talking about a deposition.
12 2034(k) and 2034(l) give exact criteria, what you have
13 to do.
14 They haven't given -- done any of it.
15 We'll take it up.
16 MR. PETROCELLI: Take it up? Have you filed
17 it?
18 MR. BAKER: I don't have to answer your
19 questions.
20 THE COURT: The question is, I gave you until
21 Thursday.
22 MR. BAKER: That -- that you're saying I'm not
23 looking for impeachment with regards to whether
24 they're a fraud or not. That's what you said. That
25 led us to believe that you were not going to let him
26 technically impeach the photographs.
27 Now, of course, you've changed your mind
28 again, and we'll just take it up and see what happens.
190
1
2 MR. LEONARD: What do we do now?
3 THE COURT: When do you expect a response from
4 the Court of Appeals?
5 MR. BAKER: I don't have any idea what the
6 Court of Appeals does.
7 THE COURT: Has it been filed?
8 MR. BAKER: No. It will be filed, hopefully,
9 today or early tomorrow.
10 THE COURT: Okay.
11 Include in your filing that the Court is
12 going to permit the examination of the photograph, as
13 well as by this witness' testimony. That is because
14 the impeaching item is the photograph itself. And the
15 testimony of this witness is not contradicting opinion
16 testimony, but simply establishing the authenticity of
17 the impeaching material itself.
18 MR. BAKER: If you can call a horse a cow, you
19 can't.
20 MR. GELBLUM: Can I ask him now, assuming --
21 THE COURT: No, wait till Thursday.
22 MR. PETROCELLI: Okay. We'll wait till
23 Thursday.
24
25(The following proceedings were
26 held in open court, in the
27 presence of the jury.)
28
191
1 MR. GELBLUM: We'll come back to that.
2 THE COURT: Okay. Proceed.
3 Q. (BY MR. GELBLUM) Now, a man named Robert
4 Groden testified here as an expert for the defense
5 about various problems that he said he found with this
6 photograph.
7 Have you reviewed Mr. Baden's testimony?
8 A. Yes, I have.
9 Q. And have you reviewed the negative, the
10 photographs regarding the issues that Mr. Groden
11 raised?
12 A. Yes, I have, sir.
13 MR. LEONARD: I'm going to object at this point
14 ask to approach once again.
15 THE COURT: Okay.
16 MR. GELBLUM: I want to put on the record, he
17 did this to Groden. I object to disrupting the
18 examination.
19 THE COURT: Just do it up here, please.
20
21 (The following proceedings were
22 held at the bench, with the
23 reporter.)
24
25 MR. LEONARD: Your Honor, I'm going to object
26 to any testimony that requires any testing or any
27 examination that he did after his deposition. That is
28 the rules. I mean, I don't know what else he'll go
192
1 back and look at. I thought he did a thorough
2 examination. Now he's gone back and he's looking at
3 the photos again.
4 I didn't have a chance to depose him on
5 that.
6 MR. GELBLUM: This is nonsense. We asked for
7 Groden's deposition for months and months; they never
8 gave it to us. They chose to take this deposition,
9 knowing he was rebutting Groden on his deposition.
10 MR. PETROCELLI: On the record at the
11 deposition --
12 MR. LEONARD: Who cares what you said on the
13 record?
14 MR. GELBLUM: Please let me finish.
15 That his opinions are going to include
16 rebuttal to Groden.
17 Of course, they had not produced Groden
18 for a deposition. We didn't have a chance. It's
19 their problem.
20 MR. PETROCELLI: I'll show it to you on the
21 record. I specifically reserved it.
22 MR. LEONARD: That doesn't matter, what you do
23 on the record in a deposition, what do you mean --
24 you're not a judge.
25 The point is that, do we -- I thought
26 there was a rule in California that it doesn't matter
27 who goes first; each side is limited to the -- to the
28 opinions that are put, that are expounded in the
193
1 deposition and the work that was done. I thought
2 that's what discovery was all about.
3 So that puts us -- it becomes a game. I
4 mean, then I wait until their guy goes, and then I can
5 impeach him.
6 MR. GELBLUM: Our man designated expressly on
7 rebuttal.
8 MR. LEONARD: What do you mean?
9 MR. GELBLUM: Designated as rebuttal, as you
10 well know, and you refused to produce your expert.
11 That's your problem.
12 MR. LEONARD: There's no refusing. That's
13 ridiculous.
14 MR. PETROCELLI: On deposition, this guy,
15 Groden -- they had another expert; they dumped him.
16 This guy Groden wasn't retained until at
17 the last minute, way after Richards.
18 I was concerned that they insisted on
19 Richards' deposition before Groden.
20 I said, look, I'll give you Richards, but
21 I'm specifically reserving Richards' right to rebut
22 expressly to Groden, because that's the only reason
23 I'm getting him, Richards. I'm not going to put him
24 on in my case in chief if he rebuts their position.
25 He is saying I can't review this trial testimony, and
26 that's his whole function.
27 MR. LEONARD: Where is the rule that you can
28 call an expert and allow him to do additional work?
194
1 I don't understand where that is in the
2 code.
3 How am I supposed to discover what the
4 guy is saying? I don't understand that. I depose
5 him, and then Groden is deposed. Now they can -- they
6 can bring him in for --
7 THE COURT: Mr. Groden deposed?
8 MR. LEONARD: Yes.
9 MR. GELBLUM: He was deposed.
10 THE COURT: After?
11 MR. GELBLUM: Well, that was their scheduling
12 choice.
13 MR. LEONARD: Do you --how does it work? I get
14 to depose him again? I don't understand that.
15 THE COURT: You want to?
16 MR. LEONARD: Yeah, I do. Let's shut it down.
17 MR. GELBLUM: Your Honor, that's ridiculous.
18 MR. LEONARD: I want to know what he's saying.
19 MR. GELBLUM: That's ridiculous. They made a
20 decision.
21 THE COURT: I'll exercise my discretion and let
22 Mr. Leonard depose him between now and Thursday.
23 Okay.
24 MR. GELBLUM: So -- he has to leave, Your
25 Honor. He came in from Montana.
26 This is outrageous.
27 MR. PETROCELLI: It's a huge problem. I'm not
28 sure he's available on Thursday, without checking with
195
1 him.
2 THE COURT: Why don't you ask him?
3 MR. PETROCELLI: Can we take a break now?
4 THE COURT: Okay.
5
6(The following proceedings were
7 held in open court, in the
8 presence of the jury.)
9
10 THE COURT: Ten-minute recess, ladies and
11 gentlemen.
12 Don't talk about the case. Don't form or
13 express any opinions about the case.
14(Recess.)
15
16 (The following proceedings were
17 held in open court outside the
18 presence of the jury.)
19
20 MR. PETROCELLI: Thank you, Your Honor. There
21 really, as I see it, are three different issues here:
22 One is whether the defense should be given an
23 opportunity to take Mr. Bodziak's deposition; second,
24 whether they should be able to take Mr. Richard's
25 deposition with regard to the Flammer photos, and
26 third, whether they should be able to take
27 Mr. Richards' deposition in regard to his principal
28 rebuttal testimony in response to Mr. Groden.
196
1 As to the first two points, Mr. Bodziak's
2 and Mr. Richards' analysis of the Flammer photos, we
3 offered depositions at least a day ago; we're for sure
4 on the record yesterday, and I haven't heard any word
5 whether they want to take those depositions. They
6 said they wanted to go to the Court of Appeals.
7 These witnesses are in town for the next
8 day or two and they are available to be deposed. I
9 would propose that Mr. Richards be deposed after court
10 today on the Flammer photos and that Mr. Bodziak be
11 deposed tomorrow on his opinion that the shoes in the
12 Flammer photos are Bruno Magli's.
13 If they are indeed able to testify on
14 Thursday, the depositions will be out of the way. We
15 don't believe they should be entitled to break up our
16 rebuttal case, which is only a couple of days, in any
17 event.
18 And I still haven't heard from them
19 what they want to do in that regard.
20 However, I don't believe it's fair to
21 suspend Mr. Richards' deposition on Groden's testimony
22 and give them a crack at his deposition -- taking his
23 deposition before we continue our examination. They
24 insisted on taking Richards' deposition in Washington,
25 D.C. before Groden was made available to us.
26 I told them you better wait until after
27 we do Groden because Mr. Richards is going to respond
28 to Groden, and they insisted on doing Richards first.
197
1 The reason was they wanted to know what he was going
2 to say so they could feed it to Mr. Groden so he could
3 incorporate that into his analysis.
4 They went ahead on September 6 in
5 Washington, D.C. I flew all the way out there.
6 Mr. Leonard took a deposition by telephone because of
7 the rain, and after he took Mr. Richards' deposition,
8 at the end I said to him -- on page 43:
9
10 (Mr. Petrocelli read from a
11 portion of the deposition
12 transcript of Mr. Richards.)
13
14 Let me state for the record,
15 Mr. Leonard, that in addition to rendering
16 this opinion, Mr. Richards will testify in
17 rebuttal to Mr. Groden, but since Mr. Groden
18 has not yet given his opinion or given a
19 deposition we are going to have to reserve
20 further testimony by Mr. Richards until such
21 time as Groden is made available.
22
23 MR. PETROCELLI: Groden is, of course, the
24 defense witness.
25 Then on the next page he asked
26 Mr. Richards if he had any other opinions he's
27 testified to, and he said no.
28 And I said, plus the rebuttal, and
198
1 Mr. Leonard said, right.
2 And by the way, in response to my
3 reservation, Mr. Leonard said okay.
4 So he acknowledged my position and agreed
5 with it. And then at the very end, he didn't object,
6 he didn't state anything for the record, he said okay,
7 and he said right.
8 He could have said anything he wanted.
9 And then finally, Your Honor, on this
10 point, at the very end of the deposition I said:
11 (Mr. Petrocelli read from a
12 portion of the deposition
13 transcript of Mr. Richards.)
14 Look, we have been asking for some
15 time, Dan, to get the deposition of Robert
16 Groden, your photographic guy.
17 Mr. Leonard: Better check with Phil
18 on that one.
19 MR. PETROCELLI: And I then said:
20
21 (Mr. Petrocelli read from a
22 portion of the deposition
23 transcript of Mr. Richards.)
24
25 Let me indicate for the record we
26 need to take the deposition in a week or so,
27 otherwise we'll have to move to preclude him
28 from testifying. We made clear to Mr. Baker
199
1 in correspondence we want to know the
2 position of this guy prior to opening
3 statements, and certainly prior to jury
4 selection. We have no idea whether you're
5 going to have Mr. Groden, if so what he's
6 going to say. We need to get word back on
7 that right away.
8
9 MR. PETROCELLI: Now, after Groden's
10 deposition -- Richards' deposition was taken September
11 6 and Groden's deposition was taken September 27.
12 It's now January.
13 After Groden's deposition they never once
14 asked us for the opportunity to take Mr. Richards'
15 deposition again. Not once.
16 After Mr. Groden testified in this court,
17 they never asked to produce Richards' for deposition.
18 Now we're in front of the jury and they
19 want to stop him from testifying in response to their
20 expert witness.
21 There's no basis for it, Your Honor. I
22 don't see why they should be able to interrupt our
23 direct examination and take a deposition because they
24 want to find out more information.
25 They've been playing games with this
26 situation since day one. They have no right to insist
27 on a deposition now in the middle of our examination.
28 He's a rebuttal witness. They had every opportunity
200
1 to find out and they chose not to, and I don't think
2 they should be rewarded for that. We're happy to make
3 them available on the Flammer -- we'll make Bodziak
4 available. We have to do that immediately. These
5 witnesses are out-of-towners, time is of the essence.
6 MR. LEONARD: Your Honor, I agree with what
7 Mr. Petrocelli stated on the record completely. He
8 says we are going to have to reserve further
9 testimony. My interpretation of that is he was
10 following the rule, which means if you're going to
11 amend your declaration, under Rule 30 -- 2034(k), you
12 have to give notice.
13 He says we never asked them. They never
14 gave us any notice that this witness, as he just
15 testified to, was going to give any additional -- was
16 going to do additional testing and examination of the
17 photo, which he did after Groden's deposition. So
18 we're prejudiced. That's what the rule says. It says
19 if you're going to go beyond what's given in the
20 deposition, that you have to give some notice. He
21 never gave us any notice.
22 MR. PETROCELLI: The notice of our designation
23 is rebuttal to Mr. Groden, anything Mr. Groden says.
24 That's what a rebuttal expert is.
25 This is sheer nonsense. They're playing
26 games. They're trying to disrupt our case, Your
27 Honor, and it's obvious. There have been six or seven
28 outbursts from the other side of this table all week.
201
1 You know, we're trying to keep our cool
2 here and get to the end of this. They're just trying
3 to muck it up as much as they can, and that's all this
4 is and nothing more.
5 MR. LEONARD: Your Honor, I took this man's
6 deposition in good faith. Mr. Petrocelli said he's
7 going to reserve testimony. I understood that he
8 would proffer him for additional depositions, as he
9 should have.
10 He's now going to render additional
11 opinions beyond his initial examination of the photos,
12 which I relied on. I asked him, are you going to do
13 anything further -- I mean, are you going to -- is
14 that all the opinions that you have. The guy went
15 back, he reexamined the photographs. I have no idea
16 what he's going to say.
17 I have a right to depose him as
18 Your Honor suggested at the side bar. I'd like to do
19 that.
20 MR. PETROCELLI: In the middle of our direct
21 examination? Give me a break.
22 MR. LEONARD: Actually, he says this is in
23 their -- it's general substance of testimony that this
24 expert is suspected -- expected to give --
25 Mr. Richards will testify as to the authenticity of
26 related matters concerning certain photographic
27 evidence.
28 I don't see anything about Groden in
202
1 there --
2 MR. BAKER: There's nothing about impeachment
3 of a witness.
4 MR. LEONARD: -- and I relied on that.
5 MR. PETROCELLI: This is nonsense. If they
6 relied on it --
7 MR. GELBLUM: It's rebuttal to Groden.
8 MR. PETROCELLI: Why didn't he ask for his
9 deposition since --
10 MR. GELBLUM: September.
11 MR. LEONARD: You didn't give us notice that he
12 was going to change his opinion.
13 MR. PETROCELLI: He didn't change his opinion.
14 Cut it out.
15 MR. LEONARD: He's rendering --
16 MR. PETROCELLI: I submit, Your Honor --
17 MR. LEONARD: -- opinions based on --
18 MR. PETROCELLI: -- Whatever Your Honor
19 decides.
20 MR. LEONARD: -- examination of the
21 photographs --
22 MR. PETROCELLI: I submit let's just get the
23 trial over with, Your Honor.
24 MR. BAKER: Then rest.
25
26 (Laughter.)
27
28 MR. PETROCELLI: I could have rested a long
203
1 time ago, Mr. Baker, a long time ago.
2 THE COURT: I think the Court will not pursue
3 this matter any further with regards to further
4 rebuttal of Mr. Groden as far as these photographs are
5 concerned.
6 With regards to the testimony as to the
7 Flammer photos, if the defense wants to take a
8 deposition, they can. If they don't want to, they
9 don't have to.
10 The Court has indicated at sidebar and at
11 this time that the Court is permitting the Flammer
12 photographs as impeachment in and of themselves, and
13 the plaintiffs are allowed to authenticate that
14 photograph in however manner they wish to do, and I
15 will permit it with this witness or any other witness
16 they are offering to authenticate that photo.
17 MR. PETROCELLI: I'd like know from the
18 defense, do you want to take Mr. Richards' deposition
19 today after court on the Flammer photographs? He's
20 available now.
21 MR. BAKER: We'll do it tomorrow.
22 MR. PETROCELLI: We can't do it tomorrow
23 because we're in court tomorrow and Bodziak is
24 available to you tomorrow for deposition.
25 MR. BAKER: We'll do them both tomorrow.
26 You've got 14 lawyers over there. You can have one of
27 them sit there.
28 MR. PETROCELLI: Well, I don't -- we can't do
204
1 them both tomorrow, Mr. Baker. We'll do one today and
2 one tomorrow after court.
3 MR. BAKER: I'm not going to do a deposition
4 today.
5 MR. PETROCELLI: Mr. Leonard can take the
6 deposition on the Flammer photographs. It will take
7 half an hour right after court.
8 THE COURT: Excuse me.
9 Mr. Leonard, you can take his deposition
10 if you want, if you don't want to, you can forego it.
11 MR. BAKER: He has other things to prepare for.
12 MR. PETROCELLI: Can we proceed?
13 THE COURT: Yes.
14 Bring the jury in.
15
16 (Jurors resume their respective
17 seats.)
18
19 MR. GELBLUM: Thank you, Your Honor.
20
21 DIRECT EXAMINATON (continued)
22 BY MR. GELBLUM:
23 Q. Mr. Richards, when we broke we were
24 beginning to talk about the points Mr. Groden made
25 when he was here on the witness stand.
26 Did you review his testimony?
27 A. Yes, I did. Sure.
28 Q. Okay.
205
1 And you reviewed various points that he
2 made?
3 A. Yes, I did.
4 Q. Okay.
5 I'm going to put up a chart that was made
6 while Mr. Groden was on the stand which listed the
7 various points that he made.
8 MR. PETROCELLI: Nobody sneeze now.
9
10 (Indicating to chart displayed.)
11
12 Q. (BY MR. GELBLUM) Do you recall from
13 reading the testimony that one of the points
14 Mr. Groden made was about a blue line that he observed
15 between the sprocket holes and the image on the
16 photograph of Mr. Simpson walking across the end zone?
17 A. Yes, I do.
18 MR. GELBLUM: And for the record, Your Honor, I
19 put up a different copy of that photograph that I had
20 before. This is Exhibit 2287, the one we're looking
21 at now.
22
23 (Exhibit 2287 displayed.)
24
25 MR. LEONARD: Your Honor, may I observe from
26 over here?
27 MR. PETROCELLI: Put it over here.
28
206
1 (Mr. Petrocelli adjusts chart.)
2
3 MR. PETROCELLI: I just want to make sure you
4 folks can see. Can you see?
5 JURORS: (Nod.)
6 MR. PETROCELLI: Okay.
7 THE COURT: Why don't you give him some scotch
8 tape or something.
9 Q. (BY MR. GELBLUM) Mr. Groden said there
10 was no natural phenomenon in photography that could
11 possibly cause that blue line.
12 Did you read that testimony?
13 A. Yes, I did.
14 Q. Was he right about that?
15 A. No, sir, he was not.
16 Q. Have you examined the blue line that
17 Mr. Groden observed?
18 A. Yes, sir, I have.
19 Q. Okay.
20 Have you determined what caused that blue
21 line?
22 A. Yes, sir, I have.
23 Q. What is that?
24 A. Basically, the blue line on the
25 photograph showing Mr. Simpson is a scratch line from
26 the rails of the Canon F1 camera. It's quite a common
27 scratch line, as a matter of fact, and it does
28 continue on through the remainder of that roll
207
1 sporadically, and through the second roll also.
2 And in actuality, you should many times
3 see two little blue lines on the side there from the
4 scratch itself as the film is wound through it one way
5 and then pulled back the other way.
6 So many times I can see them very, very
7 close together, but in essence particularly the Canon
8 F1. And I'm fairly familiar with that camera; when I
9 was Unit Chief of the Special Photographic Unit we had
10 1500 of them in our inventory. So that particular one
11 leaves those types of scratches quite commonly.
12 However, there are other cameras that
13 also will leave scratches very, very similar to that.
14 They are microscopic. You basically have a very
15 difficult time even seeing them. Normally, most
16 photographers don't really concern themselves with it
17 that much.
18 But, in essence, as the film is yanked
19 through, particularly with a motor drive, it leaves
20 either a long line or little dash lines all the way
21 through the film.
22 Q. By the way, Mr. Groden also said that the
23 frame of Mr. Simpson walking through the end zone was
24 the only frame on the entire contact sheet that had
25 that blue line.
26 Was that true?
27 A. No. The great majority of them have that
28 blue line; I mean the same type of blue line, either
208
1 on the bottom and the top or just one or the other.
2 The line will actually form on either the bottom or
3 the top right next to the sprocket holes.
4 On some of the frames, you no longer see
5 the bottom and it starts appearing on the top. It's
6 kind of a random thing. The line itself will be on
7 the entire film, but the printing of it, many times
8 will be sporadic, and you won't see the actual blue
9 come through in its entirety.
10 Q. I'm going to show you what we showed to
11 Mr. Groden as Exhibits 2288 and 2289.
12 Are those enlargements that you had
13 prepared?
14 A. Yes, they are.
15 Q. And by the way, is 2287 that's up leaning
16 against the monitor, one you also prepared?
17 A. Yes, it is.
18 Q. Can you see blue lines on those frames as
19 well?
20 A. Yes, sir.
21 If I might turn these towards the jury; I
22 assume it's Exhibit 2288. This is one of the frames
23 that we can see the blue lines on both the top and the
24 bottom. Right next to the sprocket hole we see two
25 little, small blue lines.
26 You have to realize that the blue
27 lines -- the difference between them is possibly
28 somewhere in the vicinity of five-hundredths of an
209
1 inch apart; very, very small.
2 MR. GELBLUM: Your Honor, may I have the
3 witness come closer to the jury so they can see the
4 lines?
5 THE COURT: All right.
6 THE WITNESS: Thank you, Your Honor. See if I
7 can get down easily.
8
9 (Witness approaches jurors.)
10
11 Q. (BY MR. GELBLUM) First of all, you want
12 to show them the line on 2287, the photo of
13 Mr. Simpson in the end zone?
14 A. Sure.
15 The lines we're referring to here are
16 right next to the sprocket holes. You can see them;
17 they're little blue dashes, they go all along Exhibit
18 No. 2287 on the top -- excuse me. This would be the
19 bottom only here. They go continually along, and you
20 just see a shade of blue right up next to the frame.
21 We can see those same blue lines right here.
22 Actually, this is where we got a double
23 set.
24 MR. GELBLUM: That's 2288, for the record.
25 A. Yes, 2288.
26 Along the bottom here, again, we can see
27 the double set-- the double set here, the double set
28 here, and in this particular case we can see the ones
210
1 on the top also all the way through. (Indicating.)
2 On Exhibit No. 2289, we can see very
3 distinctly the same type of little blue dash -- little
4 blue scratch. And this is one of many types of
5 scratches you'll find on film, but it's a very
6 predominant one, as I said, on the Canon F1 camera.
7 Q. Can you demonstrate -- did you bring a
8 Canon F1 camera with you?
9 A. Yes, I did.
10 Q. Can you demonstrate to the jury how those
11 scratches would be caused?
12 A. Your Honor, may I?
13 This is a camera virtually identical to
14 the one that Mr. Scull used. It's a Canon F1. It's
15 no longer manufactured. It's an older model, and it
16 has a motor drive on it as used by Mr. Scull. The
17 only difference is he used a much longer lens and also
18 what's called a monopod to hold the camera up.
19 In essence, what's causing the scratches
20 in this particular case are called rails. These
21 actually support the film. There's four of them; two
22 of them support the face of the film and two of them
23 keep the film in -- in the position vertically.
24 What causes the scratches is right at the
25 very end of the middle support rails; you see how they
26 end right next to what's called a sprocket. This
27 sprocket is what actually pulls the film through.
28 There are two little roller bars on the
211
1 back of the camera which, when you close it, push the
2 film in at that particular point. And they'll leave
3 little bitty scratches each time the motor drive pulls
4 it on through there. When it pulls it this way,
5 they're usually short little scratches. When you
6 rewind -- you rewind the camera back, they're long
7 scratches.
8 I've got a roll of film. I'll show you
9 how that mechanism actually works.
10 Q. Would you -- Mr. Richards, you might want
11 to come over to this location if it's okay with the
12 judge, so more of the jurors can get a closer look.
13 A. Let's see. I'll try to demonstrate all
14 the way around so everybody can see it.
15 Basically, when I close the back here,
16 right here by this little sprocket, it pushes the film
17 in. And when the film goes through it pulls across
18 there and leaves those tiny, little scratches. It's a
19 fairly sharp area. It's an area right at the end of
20 the film there.
21
22 (Indicating to film.)
23
24 Q. Do those scratches appear on additional
25 frames besides the three we looked at; 2287, 2288 and
26 2289?
27 A. About 75 percent of the frames have those
28 scratches somewhere in the vicinity there all the way
212
1 throughout both rolls of film.
2 As I said, they're quite common. As a
3 matter of fact, some of the cameras that I have
4 personally, including this camera, make them quite
5 readily, the same identical types of scratches.
6 Q. And you're confident that's what caused
7 those marks?
8 A. Yes, sir.
9 As a matter of fact, I photographed the
10 ones from this camera and actually drove a roll of
11 film through here and made a small -- took out the
12 small piece of film that has the scratch in it, which
13 is virtually, almost impossible to see without some
14 magnification, unless you get it just exactly right.
15 I did make a photograph through a
16 microscope, not the best photograph I've ever made, by
17 the way, but a proof by a microscope that distinctly
18 shows the scratches through there.
19 MR. GELBLUM: Can we put the microscopic
20 enlargements on the Elmo.
21 MR. FOSTER: 2358
22 MR. GELBLUM: That will be 2358.
23 THE CLERK: Okay.
24 (The instrument herein described
25 as a microscopic enlargement
26 photograph of film was marked for
27 identification as Plaintiffs'
28 Exhibit No. 2358.)
213
1 Q. Can you explain to the jury what's on the
2 Elmo, please?
3 A. Oh, okay. Sure.
4 Let's -- I'll take this one, I guess.
5 Again, the short little blue scratches
6 here that we see that look like little dashes just
7 above the sprocket holes are basically the same little
8 scratches we have here along the edge of the sprocket
9 holes made by this particular camera.
10 Like I say, it's quite a common
11 characteristic. You'll find it on a lot of cameras
12 besides the Canon F1, but the -- and the F1 is noted
13 for it because of the way one rail ends at the
14 sprocket holes.
15 The newer cameras, the rails are built so
16 they don't end at this point; it's a nice smooth edge
17 across there, so many of them won't form that type of
18 scratch.
19 Q. Why is the camera scratch that's on the
20 Elmo not blue?
21 A. This is off the actual film before it's
22 processed. This is after it's processed and printed.
23 So when it's been printed the color turns up blue. It
24 doesn't necessarily always turn up blue. It depends
25 how deep that scratch is for that particular camera.
26 Q. So is that -- in your opinion, is that
27 blue line that appears on you said 75 percent of the
28 frames on that contact sheet evidence of alteration of
214
1 any kind?
2 A. No, sir.
3 As a matter of fact, it's scratches like
4 this that I use to tell if the film came from the same
5 camera. When I'm looking at pieces of film, those
6 scratches have to match where the films are cut. If
7 they don't match where the films are cut, then I
8 obviously have a problem in dealing with that piece of
9 film. So I put the film together, look at it
10 microscopically and make sure that those scratches
11 match each other where they've been cut into pieces.
12 Q. Okay.
13 I'm just going to put an X through this
14 No. 1 to indicate your testimony that that is not
15 evidence of alteration.
16 The next point that I discussed with
17 Mr. Groden was the alignment of the frame of
18 Mr. Simpson walking through the end zone with the
19 adjoining frame.
20 Did you read Mr. Groden's testimony on
21 that subject?
22 A. Yes, I did, sir.
23 Q. Okay.
24 And Mr. Groden testified that those were
25 the only two frames on the entire -- both contact
26 sheets shot by Mr. Scull that were not in alignment.
27 Was that true?
28 A. No, it was not.
215
1 Q. Okay.
2 Did you find others that were not in
3 alignment?
4 A. Yes, sir, several.
5 Q. Can you show the jury.
6 A. I believe I brought a couple of
7 enlargements along. And also, I have a contact sheet
8 here that we might put on the Elmo to demonstrate it.
9 Q. So you can physically see what we're
10 talking about --
11 MR. GELBLUM: Are these marked?
12 Yes, those are the two.
13 Your Honor, I'm going to mark next two in
14 order.
15 THE CLERK: 2359 and 2360.
16 MR. GELBLUM: Write it on the back.
17
18 (The instrument herein described
19 as Enlargement was marked for
20 identification as Plaintiffs'
21 Exhibit No. 2359.)
22
23 (The instrument herein described
24 as Enlargement was marked for
25 identification as Plaintiffs'
26 Exhibit No. 2360.)
27
28 Q. (BY MR. GELBLUM) Did you have 2359 and
216
1 2360 prepared, sir?
2 A. Yes, I did.
3 Q. Ask you explain to the jury what they
4 are?
5 A. Yeah. These I had prepared just for
6 demonstrative evidence to show the jury and the Court
7 how -- how big these movements are and also
8 demonstrate how they're produced.
9 Remember, when a canister of film or
10 cassette of film goes into a camera and the film is
11 brought across there, the whole purpose of that film
12 is -- in there going through this particularly with a
13 motor drive is its ability to move across the camera.
14 It has to have enough motion in there, it has to have
15 enough tolerances so that the camera can let the film
16 go through fairly easy -- fairly easy rate so it
17 doesn't scratch it, doesn't hurt it.
18 If it's too tight, it will jam the film
19 up. If it's too loose, it will wobble all over the
20 place.
21 The picture in question here of
22 Mr. Simpson standing there, when you look at it in
23 relationship -- it is frame 1, when you look at in
24 relationship to frame 2, frame 2, as we look, and I'll
25 orientate it so Mr. Simpson's head is to my right
26 towards frame 2, frame 2 appears to be slightly
27 higher, and I've drawn a scratch line through the
28 emulsion all the way across and continued it on so you
217
1 can get a feel for how much distance we are actually
2 looking at there.
3 The distance if it is measured on the
4 negative is less than 1/250th of an inch.
5 Now, you say how can we see that?
6 Well, our eyes are very perceptive to
7 small variations, particularly on a line like that,
8 you can see on the contact sheet, but it is a very,
9 very small amount of movement relatively, well within
10 the tolerances of film moving up and down within the
11 camera.
12 I prepared another chart of frame 1 and 2
13 of the second roll of film; frame 1 being a Dolphin
14 football player -- I don't know which one; sorry --
15 and then another picture of Mr. Simpson on there, and
16 you draw a line across there, you will find just about
17 the same identical amount of distance between frame 1
18 and frame 2. It really happens most commonly on frame
19 1 and frame 2 for the simple reason when the film is
20 first put in, it's reasonably loose, and the cassette
21 itself is not tight. So the film has an ability to
22 move.
23 And if I might show it -- I don't know if
24 it would be better to show on the Elmo or in person.
25 MR. GELBLUM: May the witness approach the
26 Elmo?
27 THE WITNESS: I'll bring this along so I can
28 use it also.
218
1 Q. (BY MR. GELBLUM) Can you -- are the
2 lines on 2359, 2360, are they easy to see from a
3 distance?
4 A. No. They're difficult to see from a
5 distance.
6 MR. GELBLUM: Can I pass those to the jury?
7 THE COURT: They can only look at one thing at
8 a time.
9 MR. GELBLUM: I'll wait until we're done with
10 his Elmo demonstration.
11
12(Witness approaches Elmo.)
13
14 A. I'm going to move in very closely to the
15 rails on here so you can see the rail and the film at
16 the same time, and I'm going to press down on the
17 film, and you can see the amount of movement we're
18 dealing with there, up and down.
19 MR. LEONARD: Your Honor, I'm going to object
20 at this point and approach side bar.
21 THE COURT: Okay.
22
23 (The following proceedings were
24 held at the bench with the
25 reporter.)
26
27 MR. LEONARD: I object to this demonstration.
28 Number one, obviously this isn't the
219
1 camera in question because that was supposedly stolen.
2 Number two, he's demonstrating this with
3 the camera open. When that camera is closed, there's
4 not nearly that much play. And I think it's
5 misleading the jury.
6 MR. GELBLUM: Cross-examination.
7 MR. LEONARD: It's -- the purpose of the camera
8 closed is to secure the film.
9 MR. GELBLUM: Cross-examination.
10 THE COURT: Overruled.
11
12 (The following proceedings were
13 held in open court in the presence
14 of the jury.)
15
16 Q. (BY MR. GELBLUM) Please continue, sir.
17 A. Thank you.
18 As I said, the motion here is actually
19 somewhat more than 1/250th of an inch, and you can see
20 on being the top and the bottom by the way the second
21 rail there, the one we see by the sprocket holes, the
22 very end of it, right at that point is what causes the
23 little scratches you saw before, but currently it's
24 motion we're looking at here as the film is originally
25 put in.
26 I'll hold it up because this may be a
27 little easier to see here.
28 The cassette itself has a lot of freedom
220
1 and latitude to move up and down as we press the motor
2 drive, particularly if we're shooting fairly fast,
3 that film obviously will move each time that you yank
4 it through there. It has the capability to move it
5 slightly up or slightly down, that positions where the
6 frame is as it goes through there.
7 One other sample that it asked if it was
8 shown anywhere else is on frame 16 and 17.
9 Q. (BY MR. GELBLUM) Of which contact sheet?
10 A. Of the contact sheet showing Mr. Simpson.
11 Q. Which is Exhibit 1832, you mean the one
12 with Mr. Simpson walking through the end zone?
13 A. Yes. I'm sorry.
14 Let's see if we can make this work here.
15 Q. I'm sorry, is that a contact sheet that
16 you prepared, sir?
17 A. Yes, this is a slightly underexposed
18 contact sheet because it's easier to see through
19 transmitted light.
20 MR. GELBLUM: We need a new number for that.
21 THE CLERK: 2361.
22
23 (The instrument herein described
24 as a contact sheet was marked for
25 identification as Plaintiffs'
26 Exhibit No. 2361.)
27
28 THE WITNESS: What I'm going to do is pull it
221
1 back just far enough so we can see 16 and 17 and then
2 line it up with those two and show that 18, 19 and 20
3 line up with it. Take me just a moment to align them.
4
5 It will take me a moment. I'm not sure
6 if you can see it readily, but in -- there is a two --
7 is it too far away yet?
8 Q. (BY MR. GELBLUM) First of all, you're
9 talking about the numbers -- you're talking about
10 numbers on negative strip --
11 A. Yes.
12 Q. -- 17, 18?
13 A. Still too far away.
14 Q. I think --
15 A. I think we can almost see it there.
16 Q. Yes.
17 A. It's behind up on 16, 16 on the base, you
18 can see a very small, yeah, on 18.
19 Q. Is that right here?
20 A. Yes, and it continues through 19 and 22.
21 When I looked at it through a magnifier, it's about
22 the same distance on the enlargements which I made
23 which are easier to see.
24 In essence, it's something that's
25 somewhat random if -- as the film goes through there,
26 if the photographer might have put his camera upside
27 down and the cassette shifted a little forward, and
28 again, we're talking about 1/10th of a millimeter,
222
1 which is about 1/250th of an inch, have it shifted a
2 little bit, that frame is going to shift a little bit.
3 It might as it gets pulled back move one more a little
4 bit as it gets pulled through there also quite often
5 and it happens with most cameras, you get shifting,
6 it's most common on the first few frames but you'll
7 find it throughout.
8 Q. Is that an unusual situation in
9 Canon F1s or other cameras?
10 A. No, it's quite common.
11 MR. GELBLUM: With the Court's permission, I'd
12 like to pass to the jury 2359 and 2360. Those are the
13 ones that have the line through one.
14 You saw these, right?
15 MR. LEONARD: No.
16 MR. GELBLUM: If you saw these before court,
17 these are the same ones.
18
19(Mr. Leonard reviews exhibits.)
20
21 Q. (BY MR. GELBLUM) You consider that
22 misalignment evidence of alteration, sir?
23 A. No, sir. It's quite a common function of
24 the camera, and again, it's based on the tolerances
25 that the manufacturers make to allow the film to go
26 through, and as I mentioned before, unless you look
27 extremely closely, you'd never notice it. It really
28 has little significance.
223
1 MR. LEONARD: Your Honor, I move to strike that
2 last comment.
3 THE COURT: Denied.
4 Q. (BY MR. GELBLUM) Now, on this point,
5 same point, Mr. Groden made another point that if the
6 camera -- if the film was moving in the camera --
7 MR. GELBLUM: You can take that down
8 (indicating to Elmo).
9 Q. (BY MR. GELBLUM) If the film was moving
10 in the camera, you would expect to see a shift in the
11 scratch as well, if in fact it was a scratch, in the
12 same proportion as the film was moving?
13 Did you read that testimony?
14 A. Yes, I did.
15 Q. Is that correct?
16 A. Not necessarily. You have to remember
17 that these two occurrences are happening not
18 simultaneously, they're happening separately.
19 Again, that's possibly easiest to show
20 with the F1 itself, but the image is formed in the
21 center here where the hole is. That allows -- where
22 the shutter opens up and allows the light through.
23 The scratch is formed off to the right
24 here. So the image may be formed with the cassette
25 and the film pushed up here, but when you press the
26 button it yanks it through, as I said, and pulls it
27 down or pulls it up. It doesn't necessarily have to
28 coincide with the -- with the format or the frame of
224
1 the image itself that's being created.
2 Q. Is the scratch made at the same time as
3 the image is exposed?
4 A. No. The film as exposed -- I guess the
5 easiest way is to demonstrate it. The image is now
6 wrong one. Now being exposed, and when I released the
7 shutter it's on but no image is being exposed on bulk.
8 I relies it now -- the scratch is being made. It's
9 two different functions altogether.
10 Q. Mr. Groden also told this jury that the
11 frame of Mr. Simpson walking through the end zone was
12 longer than all of the other frames on the contact
13 sheet.
14 Did you read that testimony?
15 A. Yes, I did.
16 Q. Was that true?
17 A. No, it was not.
18 Q. How do you know?
19 A. Well, I measured when -- when I was --
20 when I originally examined the negatives themselves as
21 a matter of course, that particular negative I
22 measured and I measured it against the next closest
23 one, which was negative number 2. Both negatives had
24 the identical dimensions, which was 36-by-24, which is
25 a normal -- 36 millimeters by 24 millimeters, which is
26 a normal 35 millimeter negative.
27 I also made the same measurements on the
28 contact sheet, and the contact sheet is an exact
225
1 one-to-one representative of the -- of the negative.
2 Q. Can you tell the jury how a contact sheet
3 is made, very briefly?
4 A. Yes. Basically the piece of paper that
5 makes a contact sheet -- and just as easy to pull one
6 out -- such as this is placed down on an easel. The
7 film in this case for these contact sheets -- there's
8 two ways of doing it. You can leave the film in the
9 sleeves, those plastic sleeves that they come in, or
10 you can take them out and you can lay them down one by
11 one, place them on top of the paper, put a piece of
12 glass on top of that and expose it with a light
13 source. That makes the contact sheet so it's pressed
14 one to one to the paper. So any measurements that are
15 on the contact sheet will be the same exact
16 measurements that are on the negative. There's no
17 reduction or enlargement because of the way it's
18 produced.
19 In this particular case, the press
20 measurements I made were with a very precise scale
21 that measures to 1 -- basically 1/10th of a
22 millimeter, which is the equivalent of 1/254th of an
23 inch, or 1/250th of an inch, to round it out.
24 Q. Was there any difference in size between
25 this frame of Mr. Simpson walking through the end zone
26 and any of the other frames on the contact sheet?
27 A. No, there wasn't a tenth of a millimeter
28 variation. There was no variation whatsoever. It was
226
1 exactly 36 millimeters.
2 Q. Have you also measured -- compared the
3 frame of Mr. Simpson walking through the end zone to
4 another frame on the roll with a compass, as
5 Mr. Groden said he did?
6 A. Yes, I did.
7 Q. Was there any difference at all?
8 A. None at all.
9 Q. Dead on?
10 A. Right on.
11 Q. Perhaps while the jury's passing these
12 around, do you want -- can you set up and demonstrate
13 to the jury on the Elmo the measurements that you
14 made.
15 A. Yes, I could, with the judge's
16 permission.
17 Thank you, sir.
18 The scale that I use is a highly precise
19 scale, as I said. It measures to about 1/10th of a
20 millimeter, 1/250th of an inch.
21 If you'll pardon me on this, because it
22 is so precise and the lines are so small, it's made on
23 glass, and I have to use magnification myself to be
24 able to see the lines.
25 So if you'll hold on a second.
26 Q. (BY MR. GELBLUM) You're going to be
27 using that -- the same underexposed contact sheet?
28 A. Yes.
227
1 Q. Exhibit 2361?
2 A. The reason I used an underexposed contact
3 sheet, because the portions we're interested in
4 measuring here and viewing are not the image portions,
5 but they're actually the edges, the dark part, and by
6 underexposing the negative, we can actually see the
7 detail in those much, much better.
8 This is the scale that I'm using. Again,
9 the lines are so thin, you really can't see them
10 readily without some type of magnification. It's
11 traceable back to the old National Bureau of
12 Standards, and like I said, it has a dimension -- the
13 smallest dimension you can read on there is 1/10th of
14 a millimeter.
15 What I will try to do is -- if we can get
16 the other one on, there we go -- blow it up so you can
17 actually see the scale on the -- on the images
18 themselves show no differences.
19 Would you do me a favor and go on up
20 there and see when it's clear. I can't see when it's
21 clearest.
22 Q. Almost?
23 A. Is it almost there?
24 Q. Right there, for my eyes anyway.
25 A. You actually have to get close to see it.
26
27 Q. What's that you're putting on your head?
28 A. This is just a double loupe I use for
228
1 examination. It allows me to see the image much, much
2 clearer. It has two magnifiers. I believe it -- this
3 is a 5 X magnifier in the glass and it has another
4 loupe for the right eye, 10 X, so I can see the lines
5 to place them exactly on the edge of the photographs.
6 This is what I usually use for most of my
7 examinations, as a matter of fact.
8 The first one we're going to look at, a
9 picture of Mr. Simpson, I'll place the zero line right
10 on the right portion, and if you look at the monitor,
11 it should read exactly 3.6.
12 Q. You can see the zero on the left side
13 there, sir?
14 A. Okay, let me move it over, okay, let's do
15 that.
16 Right there. Can we see both of them
17 now?
18 Q. (BY MR. GELBLUM) Yes.
19 A. There it is. And I think you can
20 observe, if you can see it, it falls right on the 6,
21 3.6, not 3.61 or 3.59, but 3.6, right on the button.
22 Q. Before you move on, sir, you say 3, the
23 numbers at the top of the scale, 01, 02, 03, what are
24 those?
25 A. Those are centimeters.
26 Q. Smaller numbers?
27 A. Smaller numbers are millimeters.
28 Q. So that's 36 millimeters?
229
1 A. It's 36 millimeters.
2 Q. Is that a standard size for 35 millimeter
3 film?
4 A. That is the standard size.
5 Q. Okay.
6 We'll move over to frame 2 and do
7 basically the same thing.
8 A. There we go.
9 Q. And again, you're reading 36 --
10 A. Yes, sir.
11 Q. -- is that right?
12 A. Exactly.
13 Q. Thank you.
14 And did you do the same kinds of
15 measurements with other frames on the contact sheet?
16 A. I randomly went through and measured
17 probably 15 more frames -- 10 to 15 more frames on
18 this contact, and then I also measured the ones on the
19 second roll, and all of them measured exactly 36
20 millimeters.
21 Q. Now, Mr. Groden said that he made a
22 photocopy at a Kinko's or some such place and made his
23 measurements on that.
24 Is that an accurate way to make a
25 measurement for any legitimate photographic expert?
26 A. No, it really is not.
27 Q. Why not?
28 A. Well, in the area of photogrammetry or
230
1 making measurements from photographs, one cardinal
2 rule, you never use a photocopy, and the simple reason
3 for it, as most document examiners know in that field,
4 is most photocopiers do not reproduce exactly what you
5 think they may produce. In other words, most
6 photocopiers will slightly enlarge or slightly reduce
7 in one direction or both directions, depending on the
8 photocopier, and I'd say 90-plus percent of them will
9 do this.
10 You never know how much it's going to
11 expand. It does not do it many times linearly even,
12 so that the expansion may vary across a page.
13 I brought a little chart that --
14 basically it's just a graph I pulled out of my desk
15 drawer, and ran it through my photo machine before I
16 came here and taped it together to show you how much
17 off my particular one is that I have in my office.
18 But virtually it works with almost any
19 photo machine.
20 MR. GELBLUM: We'll mark that next in order.
21 A. In this particular case, my photo
22 machine -- photocopier is off in both directions
23 significantly.
24 THE CLERK: Next in order is 2362.
25 MR. LEONARD: I'm going to object. Beyond the
26 scope of discovery.
27 THE COURT: Overruled.
28 (The instrument herein referred to
231
1 as Document depicting squares was
2 marked for identification as
3 Plaintiffs' Exhibit No. 2362.)
4
5 A. Mr. Gelblum, if you can tell
6 Mr. Foster -- if Mr. Foster will show the upper
7 left-hand corner fairly close to see the area to see
8 that fairly lined up. I don't know if you can see the
9 red. You can pick it up, Mr. Foster, to show . . .
10 Q. Lift the top?
11 A. One is overlaid right on top of the other
12 one. A red one in combination with the black one.
13 Q. Which is the original?
14 A. The original is red it's Mylar based
15 graph you can buy in most art stores.
16 Again, I use it as a demonstrative sample
17 to show you why you can't do it from photocopies, why
18 you can't make measurements.
19 Now go to the lower -- excuse me -- lower
20 right-hand corner.
21 As we go down, you're going to see the
22 squares come apart.
23 Q. Did you make this as a separate one to
24 one photocopy?
25 A. Yeah, ran it through my photocopy
26 machine, aligning the left-hand corner.
27 You can see how much difference there is
28 by the time you get down to the lower right. If
232
1 you're enlarging two photographs the same way, two
2 square photographs the same way, and then enlarging
3 them beyond enlargements factor of the photo copier,
4 the one on the left-hand side, which would be your
5 upper left-hand corner which we just saw, would be one
6 size, and the one to the right would be another size.
7 It would have -- in this particular case it would have
8 elongated, and when you make measurements, they
9 wouldn't match.
10 Q. Let's cross out the light as evidence of
11 alteration, then. (Indicating to handwritten chart.)
12 Next point I talked about with Mr. Groden
13 was, he suggested there was some sort of a false edge
14 underneath the frame of Mr. Simpson walking through
15 the end zone.
16 MR. GELBLUM: Steve, do you have the slide
17 there, Mr. Groden's slide? Put up 2282, 3, just to
18 remind the jury what we're talking about.
19 Enlarge that (indicating to Elmo).
20 Move it up please, Steve.
21 (Mr. Foster adjusts exhibit on
22 Elmo.)
23
24 Q. (BY MR. GELBLUM) Did you read
25 Mr. Groden's testimony about what he called a false
26 edge on the photograph down here?
27 A. Yes, I did.
28 Q. Do you agree that's a false edge?
233
1 A. No, I did not.
2 Q. Mr. Groden said there was no natural
3 situation in photography that would give you that
4 false edge by itself.
5 Is that true?
6 A. No. This is really -- I was a little
7 confused initially by it because I couldn't quite
8 understand what was being said because it is such a
9 common thing and it's just such a natural thing that
10 most first-year photo students immediately would know
11 what it was.
12 Q. And what is it, sir?
13 A. It's basically the first frame, which is
14 called -- particularly on Fuji film, is called frame
15 0. There's also a frame 00 that's before frame number
16 1.
17 And if I might use the camera again to
18 help demonstrate.
19 When you load your film into a camera,
20 any camera such as this -- let's see if it's going to
21 load back up here.
22 We load the camera up when the cassette
23 comes out, when you take it out of the box and out of
24 the container, you have a little -- the leader. This
25 is the leader of the film and the leader is already
26 exposed, as you can see.
27 What you do is place it onto the other
28 end by the sprocket so the take up reel can pull it on
234
1 through, as we've demonstrated a couple times. I just
2 fired it the first time there.
3 Normally, when you would load it in, the
4 next step would be to close the back of the camera and
5 then fire a couple more times until the 1 shows on the
6 top of your camera.
7 I think most people have experience doing
8 this.
9 Well, what you don't realize is just
10 before that film is in there now, still hasn't been
11 exposed, it hasn't been exposed to the light. So if
12 you don't have a cap over the front of the camera or
13 you don't put your hand over it, which is my habit of
14 doing it, when you fire it like that, actually two
15 exposures are being made, they're not anything you're
16 planning, but they are being made nonetheless, and
17 most people have experienced when they get a roll of
18 film back, many times the first one is a picture of
19 their feet, the floor or the ceiling, that's the first
20 one, and it's usually frame 0, and the first thing you
21 do is throw it away.
22 Well, in this particular case, what has
23 happened is frame 0 came up, and it's actually a
24 picture of the football field at the stadium there,
25 and when it was taken, it was clicked off with a pair
26 of scissors.
27 And I did -- again, if Mr. Foster would
28 assist.
235
1 Q. I'm sure he can.
2 A. I did a little drawing and ran a roll
3 through showing frame 0 and 00 and clipped it off in
4 the same -- approximate same manner, just to
5 illustrate to you what has happened here, and then
6 made a demonstrative chart to actually show you the
7 football field.
8 MR. LEONARD: Your Honor, same objection.
9 THE COURT: Overruled.
10 MR. GELBLUM: Which one should we put up first?
11 THE WITNESS: Put first on top, then the
12 negatives. I'd like to show them at the same time.
13 MR. GELBLUM: We'll mark the white paper with
14 the --
15 Q. (BY MR. GELBLUM) Is that a
16 computer-generated graphic?
17 A. Yes.
18 MR. GELBLUM: We'll mark that as 23 --
19 THE CLERK: 63.
20 MR. GELBLUM: -- 63, and the roll of negatives
21 as 2364.
22
23 (The instrument herein described
24 as a computer-generated graphic
25 was marked for identification as
26 Plaintiffs' Exhibit No. 2363.)
27
28 (The instrument herein described
236
1 as a roll of negatives was marked
2 for identification as Plaintiffs
3 Exhibit No. 2364.)
4
5 A. The computer-generated graphic here is
6 something I made up on my computer very quickly.
7 I want to make sure I'm out of the way
8 here.
9 This illustrates what would be frame 1,
10 and the frame 0 where it was cut off, because, again,
11 this was unwanted film. It was underexposed. It
12 wasn't meant to be taken. It was just cut off, and it
13 wasn't done too awful neatly, it's just a pair of
14 scissors and clipped right off at this point.
15 If you put on the negatives just below
16 it, just push that up a little bit, and put them on
17 below it, and then is it on back light, back light.
18 This is a roll that I took -- back it
19 off, if you would, just a little bit, please.
20 Little more. Little more. Little more.
21 Little more.
22 There we go. (Indicating to Elmo
23 screen.)
24 Okay.
25 This -- the leader -- the whole seven
26 inches of film here is called the leader, basically.
27 And on here, we have just a portion of the first
28 picture, because this portion has been exposed. I
237
1 pulled it out to put it into the sprocket and the
2 take-up reel.
3 The next shot, which is frame 00, is this
4 shot (indicating). And I just literally shot it in
5 the hotel room, just to put a picture on there that
6 you could see.
7 And then the next one is frame 0, which
8 was in the same hotel room, just so you could see.
9 Then I clipped it off, just leaving a little slice
10 left on it, exactly like is on the photograph of
11 Mr. Simpson.
12 And then this would be the equivalent --
13 this next frame here of Mr. Simpson's photograph here.
14 In essence, what it is, is, when it was
15 processed, it was just cut off. In examining it very
16 closely, I found it is a picture of the field. When
17 Mr. Scull loads -- loaded his camera -- when you
18 normally load an F 1, you do not load it in a turn
19 like the picture of Mr. Simpson is taken in,
20 horizontal. You load it -- I mean, in a vertical.
21 You load it in a horizontal manner.
22 Again, if you you're not paying
23 attention, the wrong lens, you have no lens covers
24 for -- most of them do not -- you're just loading it
25 as you saw me load it there. Before he loaded it --
26 MR. LEONARD: Your Honor, I object. This calls
27 for speculation at this point. He has no idea what
28 Scull did.
238
1 THE COURT: It's the witness's opinion on how
2 it was done. Overruled.
3 A. (Continuing.) And if we take an image,
4 what I had done on this demonstrative chart here --
5 Q. Marked next in order as 2365?
6
7 (The instrument herein referred to
8 as demonstrative chart was marked
9 for identification as Plaintiffs'
10 Exhibit No. 2365.)
11
12 A. 2365.
13 -- is, I have -- I had just the bottom
14 portion underexposed again, so that we could see the
15 actual portion in question at the bottom here. And if
16 you turn it horizontal, like the film would have been
17 loaded through, we can see white lines, diminishing as
18 they go up the frame.
19 These are the white lines of the field
20 while standing at the end zone.
21 And, as a matter of fact, if you look
22 very, very closely at the third line here, you can
23 actually see a little red at the top white, and then a
24 little blue, and the 20-yard line at that stadium, as
25 can be illustrated. I think we have a picture of
26 that.
27 Do we have the enlarged contact sheet?
28 THE WITNESS: Your Honor, we may have to pass
239
1 this around to make it easier to see than on the
2 contact.
3 MR. GELBLUM: We'll mark 2366, the enlarged
4 contact sheet of the roll that has the picture of
5 Mr. Simpson walking through the end zone.
6
7 (The instrument herein referred to
8 as Enlarged contact sheet of the
9 roll that has the picture of
10 Mr. Simpson walking through the
11 end zone, was marked for
12 identification as Plaintiffs'
13 Exhibit No. 2366.)
14
15 A. (Continuing.) If we compare it with the
16 exact contact sheet, we can see, if we go to frame
17 such as -- just select one kind of here at random
18 frame 12, we can see the lines, the white lines
19 diminishing or into the background, the same way we
20 can see these white lines.
21 Of course, this is a much bigger blow-up.
22 There is a much bigger enlargement. The lines of
23 diminishing off into the background, as they are here
24 in this case, the camera was pointed down, so all we
25 see is ground. In this case, the camera was pointed
26 slightly off.
27 Q. (BY MR. GELBLUM) You're saying the
28 second in the case or contact sheet?
240
1 A. Yes.
2 Q. When you're pointing down, you're talking
3 about 2356?
4 A. Right.
5 Q. I'm sorry. It's 2365. The enlargements
6 of Mr. Simpson's leg.
7 THE CLERK: That's a chart?
8 MR. GELBLUM: 2365 is the enlargement of the
9 frame in question, and the 2366 is the enlarged
10 contact sheet.
11 A. In addition, if we looked at 2366, the
12 contact sheet, at frame 25, we can see the blue, red,
13 and white lines, as that can just be seen on the third
14 line from the bottom going up. You can just barely
15 see the colors in it.
16 Q. I'm going to put that on the Elmo and see
17 if we can see that.
18 A. It may be difficult on the Elmo.
19 Q. You can pass it around.
20 MR. LEONARD: A point of clarification, is it
21 the witness testimony --
22 MR. GELBLUM: This isn't cross-examination.
23 MR. LEONARD: NO, I'm -- it's important.
24 MR. GELBLUM: In the middle of my
25 examination -- if he's got an objection to make --
26 MR. LEONARD: I don't have an objection. I
27 didn't understand why, when they're talking about the
28 two exhibits -- I'm trying to take notes.
241
1 MR. GELBLUM: 2365 is the enlargement we're
2 about to put on the Elmo of the bottom half of the
3 frame in question of Mr. Simpson walking through the
4 end zone.
5 2366 is the contact sheet.
6 THE CLERK: I -- may I, for the record -- which
7 demonstrative chart is that, 2365?
8 MR. GELBLUM: Which one? The computer graphic?
9 THE COURT: That's 2363.
10 MR. GELBLUM: And the 23 -- negatives, 2364.
11 THE CLERK: The next one I have is a
12 demonstrative chart.
13 MR. FOSTER: This is 2365.
14 THE CLERK: Is that also known as the
15 demonstrative chart?
16 THE WITNESS: I used the term. I'm sorry. I
17 didn't mean to.
18 MR. GELBLUM: Can we pass around 2365 to the
19 jury?
20 THE COURT: Yes.
21 Q. (BY MR. GELBLUM) Can you tell the jury
22 what you're pointing out with the red, white, and blue
23 lines?
24 A. Yes.
25 You have to tune it in. On the
26 orientation it was taken, this would be the line
27 (indicating). This would be the closest line to the
28 photographer, the second one. And this is the third
242
1 one here (indicating). That's probably the 20-yard
2 line. Then it goes on -- on up until you no longer
3 see it in there.
4 It probably would be best to pass this
5 one along, too, so you can see how the lines do
6 diminish as you go.
7 Q. Before you pass them, let me ask a couple
8 more questions about them.
9 Mr. Groden said that it was ridiculous to
10 say that what you're saying is true, because among
11 other reasons, there would be a vanishing point you
12 would see in those lines.
13 Did you read that testimony?
14 A. Yes.
15 Q. Was that right?
16 A. No, it is not. If the photographer is at
17 the end of the field; the lines are parallel to his
18 plane. In other words, they're parallel to the plane
19 of the field.
20 It's very similar to, if we look up at
21 the lights, or if you happen to be looking up in this
22 direction, in which you can see in the jury, if you
23 look at different lines of the light, as we look down,
24 they get shorter and shorter and shorter.
25 And you can see it much better, like, out
26 in the hallway.
27 As we look down, each one of the
28 horizontal lines will tend to compress or diminish,
243
1 the farther it gets away.
2 Q. Did you bring an exhibit to demonstrate
3 that?
4 A. Yes, I did. In fact, I actually brought
5 one because Mr. Groden suggested that a railroad
6 track --
7 MR. LEONARD: Same objection.
8 A. -- was the best example.
9 Q. (BY MR. GELBLUM) Of what?
10 A. Of this phenomenon.
11 MR. LEONARD: Can I have a ruling, Your Honor?
12 THE COURT: I don't know what the objection is.
13 MR. LEONARD: It's the continuing objection
14 that I made at the side bar --
15 THE COURT: Overruled.
16 MR. LEONARD: -- beyond discovery.
17 THE COURT: Overruled.
18 MR. FOSTER: 2367?
19 MR. GELBLUM: Yes; 2367?
20 THE CLERK: I'm sorry.
21 Yes, next in order.
22
23 (The instrument herein referred to
24 as Artist's drawing of a railroad
25 track was marked for
26 identification as Plaintiffs'
27 Exhibit No. 2367.)
28
244
1 MR. GELBLUM: Would you put that up, please,
2 the right-hand side -- the other side. Move it
3 over --
4 Q. (BY MR. GELBLUM) Can you demonstrate
5 what we're talking about with a vanishing point?
6 A. Can you sharpen that up just a little
7 bit?
8 This is just an artist's drawing of a
9 railroad track.
10 And he is correct in saying that the
11 lines here on the railroad tracks themselves, along
12 with the wires above, all go to a vanishing point.
13 What this means is, any lines that are
14 parallel in a picture, will go to some -- some
15 vanishing point -- actually, one of three vanishing
16 points that are in a picture -- most artists and most
17 photographers are well aware of it -- however, one --
18 one vanishing point can be infinity. It usually is
19 when you have parallel lines that are parallel with
20 the film plane.
21 In this case, he was talking about the
22 railroad tracks. What I am talking about is the ties
23 in between them. And if you look at the ties, each
24 one of these ties stay parallel with each other as
25 they get smaller and smaller and smaller, and closer
26 and closer together, as they go away from us, or as
27 they're viewed away from us.
28 The same way the lines in the field do
245
1 here, and really the same way the lines do in the
2 field here. (Indicating.)
3 Q. When you say "here," you're talking about
4 Exhibits 2365 and 2366?
5 A. Yes.
6 Q. Okay.
7 Now, finally, on this -- before we pass
8 that around, Mr. Groden also said that this couldn't
9 be lines on the field, because the lines went past the
10 edge of the horizontal edge there. Is that right?
11 A. (No verbal response.)
12 Q. That the frame --
13 A. No.
14 On figure 2365, we can see the edge of
15 the frame here. (Indicating.)
16 And this is the edge of the frame.
17 (Indicating.)
18 We can also see where the corner is the
19 same as the corner of the frame above it, which has
20 Mr. Simpson in it.
21 And the corner down here (indicating),
22 it's just a clipped-off edge of the frame.
23 Also, the distance between these
24 frames -- and if I might have the one showing the full
25 one of Mr. Simpson we had initially.
26 No, that's with the 26.
27 I'm sorry. First and second frame.
28 Q. Oh.
246
1 This one?
2 A. Yes.
3 If we look --
4 MR. GELBLUM: That's 2359.
5 A. -- at the distance -- this isn't the
6 best. There's another one that shows this particular
7 frame at the bottom.
8 Q. (BY MR. GELBLUM) There. Mr. Richards,
9 is this the one you're talking about?
10 A. That's the one I'm talking about.
11 MR. GELBLUM: Again, next in order.
12 THE CLERK: 2368.
13
14 (The instrument herein referred to
15 as Enlargement was marked for
16 identification as Plaintiffs'
17 Exhibit No. 2368.)
18
19 Q. (BY MR. GELBLUM) Is this another
20 enlargement you had made?
21 A. Yes. It is 2368.
22 You can see the distance between frame 0,
23 down here, and frame 18 is illustrated at the bottom
24 of the print. And it's the same identical distance as
25 it is between frame 1 of Mr. Simpson and frame 2 up
26 above.
27 Again, this vertical position is not
28 normally how a camera's held when it is loaded. It is
247
1 held in this direction, horizontally.
2 And again, this is a photograph of the
3 field that was useless to the photographer, and it was
4 just cut off when he put them -- inserted them into
5 the -- into his sleeves for storage.
6 Q. Why don't we pass around 2365 and 2366,
7 then.
8 Again which line on 2365, you see the
9 red, white, and blue on the 20-yard line?
10 A. You have to turn it the way it should be
11 naturally done. It would be the third one up from the
12 bottom.
13 We have 1, 2, 3, as we're going from
14 bottom to top.
15 Q. Is it fair to say you don't consider that
16 little image there evidence of alteration?
17 A. That's fair to say, yes, sir.
18 Q. The next point on the chart that
19 Mr. Groden made is that he said he saw a retouching
20 mark in the left pants leg.
21 Did you read that testimony?
22 A. Yes, I did.
23 MR. GELBLUM: Steve, could you put on the
24 monitor, please, 2282, number 68.
25 This was Mr. Groden's exhibit, to remind
26 the jury what we're talking about here.
27
28(Exhibit 2282 displayed.)
248
1
2 Q. (BY MR. GELBLUM) He said there was a
3 discontinuity in the grain pattern in the lower leg.
4 Did you examine the negative and the
5 contact sheet and the prints of this photograph in
6 that area?
7 A. Yes, I did.
8 Q. All right.
9 Did you see any sign whatsoever of
10 retouching?
11 A. No, I did not.
12 Q. Did you see any discontinuity in the
13 grain pattern?
14 A. The grain pattern is consistent
15 throughout. The shade is different, but the grain
16 pattern is consistent throughout.
17 Q. Now, Mr. Groden said he saw the
18 retouching mark in print -- what he called a
19 retouching mark on a print, not on the negative.
20 If you, as a photographic expert, see
21 some kind of a mark or something that looks strange on
22 a print, would you assume immediately that that is
23 some evidence of alteration?
24 A. Well, no.
25 If I'm examining a photograph and I see a
26 mark that I do not understand what it is, I do not
27 automatically attribute it to falsification or
28 alteration or changing it. It's just a mark I don't
249
1 understand, and it has to go through two more
2 procedures.
3 One, I have to find out what it is. And
4 when I find out what it is from, it is a natural mark
5 that would be placed on there either through the
6 processing or through the -- caused by the camera or
7 perhaps some defect in the film, which happens really
8 quite often, I would attribute it to that, and
9 continue on.
10 If I found it was some indication of
11 alteration, then I would label it as such.
12 If I did not know either way, that's the
13 way I would have to label it, as I don't know either
14 way, because I contribute it to something.
15 Q. Can anomalies appear on prints because of
16 the printing process, as opposed to -- and would not
17 show up on the negative?
18 A. Yes; it happens all the time.
19 As a matter of fact, in many of the
20 prints that I have brought here today, there's a thing
21 called neutron rings that you can see quite readily.
22 They drive people who do printing crazy.
23 But if they are small neutron rings, and
24 you don't know what it is, and you've never been
25 exposed to it before, you really don't understand what
26 it is, you could very easily take that anomaly for a
27 retouch mark.
28 Q. If you see an anomaly on a print, would
250
1 you want to look at the negative to see where it came
2 from, or if it just came from the print?
3 A. Most definitely I would want a second
4 print made, to make sure it wasn't of the print
5 itself.
6 If the second print doesn't have the
7 anomaly, obviously, it was from the first print.
8 And then secondly, I would like, if that
9 shows the same basic -- if I got two prints showing
10 the same mark, that is obviously coming from the
11 negative, and I would want to examine it.
12 Q. So do you see anything in the lower leg
13 that, to you, is evidence of alteration of the left
14 leg?
15 A. No. I looked at that particular pants
16 leg, as I mentioned, with low magnification, high
17 magnification, all the way to 60 power, under a
18 microscope. I could find no suggestion, no indication
19 whatsoever of retouch marks or alterations.
20 Q. During your 25 of years of experience
21 examining photographs, did you come to learn what
22 retouching marks look like?
23 A. Yes, I have.
24 MR. GELBLUM: Now, Steve, can you put up the
25 next one, which is 2282-7, number 7 again,
26 Mr. Groden's exhibit.
27 Q. (BY MR. GELBLUM) Mr. Groden testified
28 that there was a -- what he called a linear tone, a
251
1 change across the right leg.
2 Did you review that testimony?
3 A. Yes, I did.
4 Q. And did you review the photograph to see
5 what he was talking about?
6 A. Yes, I did.
7 Q. And do you see what he's talking about?
8 A. No, I do not.
9 And, in essence, I examined it; I can
10 find no significant linear tone, a change.
11 What I mean by "significant" is, you do
12 have tone, a change throughout there, as you can see.
13 You have light areas and dark areas in the shadow
14 areas of the pants, and partially where they're
15 highlighted as they're folding back and forth. That's
16 a tone change.
17 But there is nothing inconsistent with
18 that pants leg blowing in the breeze as a man is
19 walking along. There is nothing in there that
20 suggests that it would be a retouch mark or anything
21 of that nature. It appears to be a highlight at the
22 top of a fold, or what appears -- what I understand to
23 be the mark that he has -- he is suggesting.
24 Q. Let me show you 2287, which is the
25 full-frame enlargements of the negative -- of the
26 contact sheet of Mr. Simpson walking through the end
27 zone.
28 Can you show the jury, are there any
252
1 tonal changes on the leg, other than the one
2 Mr. Groden's talking about?
3 A. Not that I can -- well there's tonal
4 changes throughout the entire leg.
5 As I said, at each fold of the leg, the
6 tone changes from light to dark, from shadow to
7 highlight area. As it goes, continues on down from,
8 you know, at the very lower portion of the leg, it was
9 like a little snakey structure here of just the cloth
10 rippling as you're walking along. And again, that's
11 perfectly natural.
12 Q. Is this the area you're talking about?
13 (Indicating.)
14 A. Yes.
15 Q. Pointing on the monitor to the little
16 ripple in the lower leg?
17 A. Yes, it would be.
18 Q. Does that appear to you to be evidence of
19 alteration?
20 A. No.
21 Q. Do you see any evidence of alteration in
22 the lower right pants leg?
23 A. No, I do not.
24 MR. GELBLUM: You can take that down.
25
26(Indicating to Elmo.)
27
28 Q. (BY MR. GELBLUM) Mr. Groden also said,
253
1 as reflected on the chart I have in front of the jury
2 there, that he saw a problem, because the frame of
3 Mr. Simpson walking through the end zone had an
4 overall reddish tint, and the other frames on the
5 contact sheet had an overall cyan, or bluish-green
6 tint.
7 Did you read that testimony?
8 A. Yes, I did.
9 Q. And did you see what he was talking
10 about?
11 A. Yes, I did.
12 Q. And is that evidence of alteration, in
13 your mind?
14 A. No, not in this particular case. And I
15 don't have the contact sheet. I think the jury might
16 be passing it around.
17 That's quite common. Things reflect
18 color, and there's a lot of color in these pictures.
19 As a matter of fact, the blue monitor shining here
20 reflects blue, or projects blue on the black cardboard
21 underneath it. So the black cardboard takes on a blue
22 tint to it.
23 Mr. Simpson is surrounded by red, so some
24 of that red diffused light is showing on, particularly
25 white, or white shadow areas or dark shadow areas. It
26 will show up on both.
27 The reason that it's nowhere else as
28 almost every other photograph in that frame, is the
254
1 shadow areas are green or cyan, which is -- actually,
2 cyan is a combination of blue and green -- is because
3 they're standing -- most of the uniforms on there are
4 cyan, and he's standing on green grass for most of
5 them, so that those colors are being reflected into
6 the white areas. And that's what you're seeing.
7 Again, this is another tremendous
8 problem, many times, for people who print color film,
9 because they can't get those out very easily, without
10 shifting the rest of the colors. They can't make
11 white pure white without shifting the rest of the
12 colors to get rid of those natural reflections.
13 That, you'll find, is quite natural, for
14 Mr. Simpson's shirt to be reflected red in there,
15 since he's surrounded by red. He's standing on red.
16 And the other people in all of the other frames are
17 standing on a green turf, which is reflecting back to
18 them.
19 Q. Is that an example of diffused
20 reflection?
21 A. Yes, it is.
22 Q. Can you explain to the jury what diffused
23 reflection is?
24 A. There's two basic types of reflection:
25 Diffused and spectral.
26 Spectral reflection is like a mirror
27 angle of incident equals angle of reflection.
28 You shine a light in, it hits a mirror;
255
1 whatever angle it is, it is the same angle it comes
2 off the mirror.
3 Diffused angle is lights that strike it,
4 diffuses some all directions: Soft clothing, soft
5 materials. Nonreflective materials diffuse light.
6 They reflect light, but they don't reflect it in a
7 specific direction. And if you have something close
8 to it, it will -- it will reflect that light into that
9 object, which will tint it.
10 Q. Would an Astroturf field create spectral
11 or diffused?
12 A. All diffused. There's nothing shiny out
13 there to reflect light.
14 Q. You consider this tint example of
15 alteration?
16 A. No.
17 MR. GELBLUM: Would this be a good place to
18 stop?
19 THE COURT: Yes.
20 Okay, ladies and gentlemen, 8:30
21 tomorrow.
22 Don't talk about the case. Don't form or
23 express any opinions. Don't read anything or watch
24 anything about this.
|
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