MS. SMYSER: Objection.
THE COURT: Overruled.
MS. SMYSER: Your Honor, could we get a sidebar, please?
THE COURT: Why don't we take our break and then we can address the issue.
Thank you members of the jury. Don't speak to each other about the case. Don't talk to anyone else about the case. Do not look up anything about the case. We'll be back at 1:15. All rise
(Continued on next page)
(Jury not present)
THE COURT: Mia, we'll see you back here at 1:15. The government folks know this, but you're not allowed to have any communications with them, all right? See you then.
(Witness not present)
THE COURT: Please be seated.
Ms. Smyser.
MS. SMYSER: Your Honor, this witness has no burden to bring forth evidence of anything that she's saying. The government has the burden, and the defense can argue at closing that the government has not met its burden, but it is totally improper in front of this jury to be suggesting that the witness in this instance should be bringing forth evidence to support her claims.
THE COURT: Well, everything you said is true and, Mr. Steel, if you want to ask a question along these lines, I think it needs to be rephrased because I think that the reference to evidence is improper. But if your question is directed to whether the witness herself has specific things like texts or emails that she sent, or something that she would have personal knowledge of to substantiate the things that your question was directed to, then I don't think that would run into the nature of the objection as it's been articulated by Ms. Smyser.
MR. STEEL: Understood.
THE COURT: Ms. Smyser.
MS. SMYSER: Just when Mr. Steel phrases these questions, we would ask that it not be does she have anything to support or to prove her claims here.
THE COURT: I agree. And it's a form objection.
You understand the objection, Mr. Steel?
MR. STEEL: Not a hundred percent, but I'm sure I will, your Honor.
THE COURT: I think that if you're using legalistic terms, then it runs into a concern that the jury will think of the availability of evidence to the government in the absence of that evidence, which it would be improper to ask this fact witness about. So if you ask the question in terms of what she has without referring to what supports the claims, then I think you will avoid the objection.
MR. STEEL: I think I got it.
THE COURT: Like if you were getting a Coke from a vending machine, and you said, Do you have any email where you asked the person about the Coke? That's the question that I think would avoid the government's objection. A hypothetical example.
Ms. Smyser, anything else before we take our lunch break?
MS. SMYSER: No, your Honor.
THE COURT: Mr. Steel, anything from your side?
MR. STEEL: No, sir.
THE COURT: All right.
Mr. Agnifilo, anything else?
MR. AGNIFILO: Nothing.
THE COURT: We'll see everybody back shortly before 1:15.
(Luncheon recess)
(Continued on next page)
AFTERNOON SESSION 1:15 p.m.
(Jury not present)
THE COURT: Ms. Smyser, anything to raise before we bring the jury back?
MS. SMYSER: Yes, your Honor. I have two issues to raise.
First, the defense at 1:07 turned over a video to us as Defense Exhibit 1750, which Ms. Geragos just showed me. It appears to be a video of this victim posting singing happy birthday to Mr. Combs. I haven't be been able to watch it closely to hear everything in the video.
Given that this was just turned over to us in violation of the Court's order, also in violation of Rule 16, I will note that none of the social media posts are things that were in the government's possession beforehand. They've only been turned over in accordance with the Court's order a few days before her testimony. I would ask the Court preclude this particular exhibit.
THE COURT: Mr. Steel.
MR. STEEL: Your Honor, it is a very short video. It depicts this witness on the screen. Though being any redactions were made, and it is a happy birthday to Mr. Combs. The witness is saying that -- I understand the Court has heard all the testimony. I was terrified of Mr. Combs.
I asked her about her social media postings. She said, well, yes, this is what I said, however, I felt obligated to do it. This is now a different means of wishing him a happy birthday. It is in year 2014 -- that's wrong. 2013. And that is what it is.
I think it's very probative to show her demeanor, her energy, her words not on a page, not from her reading today, but it is her right in the camera saying -- these are not the quote. Please don't take this quote. What a great day. Happy, happy birthday. I love you.
THE COURT: I understand why you're putting it in because there are other pieces of evidence that you've put in that go to the same issue. And so, one, it's cumulative of that other evidence. Now I understand the difference between this piece of evidence and the Instagram posts, but, for example, we had an entire proceeding about the scrapbook and the cover letter which is in the same category as this video. So the real question is why was this not turned over when the scrapbook and the other materials were turned over to the government?
MR. STEEL: I was made aware of this yesterday, and I looked at it last night, and I can't tell you the time but I can look at notes, and then we made a decision to use it based upon her testimony. I'm using it for impeachment evidence. It is different, I know the Court just said. It's visual and audio, not just a reading, so that's why.
I was not -- I gave over. I understand the Court's concern. I understand the prosecutor's concern. I gave over everything, including impeachment, days ago. I don't do that. I know the Court doesn't know me. I don't care. My point is let's have the trial. Let's not waste time. So that was not done for gamesmanship.
THE COURT: How long is this video?
MR. STEEL: My memory is not good. Eight seconds.
MS. SMYSER: Longer than that, your Honor.
MR. STEEL: I'm told 20 seconds.
MS. SHAPIRO: Can I just add something, your Honor?
THE COURT: No. Mr. Steel, it's 20 seconds long?
MR. STEEL: Well, I really don't know, but yes, it's very short.
MS. SMYSER: Your Honor, I just want to point out. I appreciate Mr. Steel turning over most of the exhibits in advance, but this was marked Defense Exhibit 1750. They turned over to us 1749 and 1751. I'm not sure why 1750 was held back until 1:07 p.m. today, but I think that they should be precluded from using it.
In addition, as your Honor pointed out, it's cumulative. They've been asking about her birthday posts over and over again, and I think it's unnecessary and shouldn't be used.
THE COURT: In what way would it be used for impeachment?
MR. STEEL: Because the witness is constantly saying I felt an obligation to write this social media. This is not -- this is a video to Mr. Combs directly that she then puts out and blasts it as well.
And I know the Court doesn't care about this, probably doesn't need to get involved in it, but I did not mark the 1749 -- I heard what the prosecution said, 1750, 1751. I didn't pick any of those out. I'm choosing to use it now when the prosecutor's got it. That's what happened.
THE COURT: I don't understand what you just said.
MR. STEEL: The prosecution said they got it last night. They received Exhibit 1749 and 1751. I'm just telling the Court I didn't serve or even know about what is 1749 or 1751. I made a decision to use 17, I guess, 50, the video now, and the prosecution got it almost immediately.
THE COURT: Well, when did you decide that you were going to use it?
MR. STEEL: Today.
THE COURT: But you reviewed it last night.
MR. STEEL: I decided I'm going to use it today. I saw it yesterday.
THE COURT: It's Exhibit 1750, Ms. Smyser?
MS. SMYSER: That's correct.
THE COURT: Exhibit 1750 is precluded.
MS. SHAPIRO: Your Honor, I'm sorry, I really want to make a couple points here because the reason -- one of the reasons we went and found the video was because of this witness' demeanor and the way she was presenting herself to the jury.
And in addition to all the points Mr. Steel has made, if you watch this video, which I understand we were just told is 30 seconds long, you can see that her demeanor is night and day from what it has been during the direct and at times during the cross as well. And she's trying to present herself in a certain way as being traumatized and so forth. And this video shows her as she really is, and it is particularly probative and probative in a way that the photographs aren't and even beyond the substantive points about the fact that she's making -- wishing Mr. Combs happy birthday. So I think we will be severely prejudiced if we can't show the video.
THE COURT: The 20-second happy birthday video?
MS. SHAPIRO: Yes, your Honor.
THE COURT: Let me ask you to explain to me when was this exhibit marked with an exhibit number?
MS. SHAPIRO: I don't know that. I know we found it yesterday. We had to redact it.
THE COURT: All right. We don't know when it was marked with an exhibit number. When is the first time that someone on the defense team reviewed the video to determine whether or not it would be potentially used in the cross-examination of this witness?
MS. SHAPIRO: Yesterday, after we heard the direct.
THE COURT: Why was it not -- well, this goes back to the question of when it was marked because there was a time when the defense marked the scrapbook and the cover letter, also to go to the exact same point that during the time that she is saying these things happened, she was also professing her lover for Mr. Combs in various ways. And some of those are in Instagram posts. Some of those are in a scrapbook. Some of those are in a letter. There are various different forms of this, so it's not just Instagram. And are you telling me that when the defense reviewed all of those documents to use during cross-examination, they did not review this video?
MS. SHAPIRO: Yes. Yes, your Honor. That's the point. The point is --
THE COURT: Why? Why? No. No. Why was it not reviewed?
MS. SHAPIRO: We didn't even think of the idea until we saw the way she presented herself to the jury.
THE COURT: You are misunderstanding my question. You were looking at all this evidence in your possession to determine whether it would be used or not, and you're telling me here that you did not even review the video. You didn't know it existed until yesterday?
MS. SHAPIRO: Yes. Correct, your Honor.
THE COURT: How is that possible?
MR. AGNIFILO: Can I shed some light on this? Can I tell you what I think happened?
THE COURT: Let me take a step back, and I'll let you speak, okay?
MR. AGNIFILO: Yes.
THE COURT: The Court's order, very clear, and it said that if you don't turn over those exhibits in accordance with the order, you need to establish good cause. That's why I'm asking these questions.
MR. AGNIFILO: I totally understand.
THE COURT: Because it's not just whether it's relevant or not, okay? I agree with Ms. Smyser that its relevance, even if it would be going to demeanor, is minimal at best and cumulative of all the other evidence that you are putting in and I've allowed you to put in. So what is the good cause, give me the explanation why it's coming up at 1:07.
MR. AGNIFILO: I saw it for the first time yesterday. That I know. The reason I keep --
THE COURT: I don't really care so much.
MS. SHAPIRO: Your Honor, I found the video --
THE COURT: Ms. Shapiro, this is why when you asked to speak before, I said no. We can't have a situation where multiple lawyers are standing up on the same issue. It prevents a record from being made.
MS. SHAPIRO: I understand, your Honor.
THE COURT: Okay?
Now, Mr. Agnifilo, I don't -- I don't really care what one individual lawyer wants to know, but having come here and provided this to the government at 1:07 p.m. -- now, clearly last night you had seen this, okay. Now when you saw it last night, did you turn it over then because you're like, oh no, we may be in a position where we need to use this tomorrow. And it obviously doesn't go to impeachment. You could try to use it, but you're not going to be able to use it as impeachment because if you ask the witness did you send the video, she'll probably say yes, okay? If she says no, then you can try to put it in for impeachment purpose. But that's not going to work.
So last night when you looked at the video, did you think to yourself, I need to turn this over so at least Ms. Smyser could have a chance to review it and we could have addressed it this morning?
MR. AGNIFILO: So last night -- when I saw it for the first time yesterday, we saw the value in it. We weren't sure how we were going to use it, and what we realized is the most useful part of it is her demeanor in the video because -- and I'm just saying it this way so your Honor understands. And I can't say it any less directly.
I believe that the jury may conclude that her affect on the stand is an act. I think that's possible. I think the jury might conclude that. And this video makes that conclusion clearer. Now, the idea was, you know, we had to see -- you know, it was a piece of evidence that came to us. We had to figure out what it was, you know, if they're are going to be have to be redactions. We had to talk to our client about it and talk as a team, and we realized today when she continued to have the same affect, which we think is false, that we wanted to use it.
THE COURT: When is the video from?
MR. AGNIFILO: It's from 2013. So what I believe happened -- what I believe happened is that -- and I told the Court that this might happen a few weeks ago. I believe someone has determined who this is and has said I have a video and sent us the video.
THE COURT: When did -- this is what I'm -- let's take a step back. Actually, let's take five minutes, and I will ask during that five minutes for the defense team to confer and give me the story of what the basis is for the failure to comply with the Court's order. That's what I'm asking. Hold on. Because I'm getting arguments about relevance, and I'm getting arguments that don't go to the good cause that I said had to be shown. Now you're telling me that somebody sent this to the defense team. Well, look, if someone sent this to you at 1:00 a.m. yesterday, then that's something. But if you had this video in your possession for the past week, two weeks, three weeks, and you just decided to produce it now, then that's a different story, and I don't think that you thought through this. And let's hear what it is so I understand what your position is.
MR. AGNIFILO: That's perfectly reasonable. Let us talk because everyone has a different --
THE COURT: I know.
MR. AGNIFILO: -- like experience with it. So let's just get to ground on that. But one thing I will say, it's not Rule 16. It's not affirmative evidence. It's impeachment --
THE COURT: It doesn't have -- we addressed this already. I ruled in your favor on the Rule 16 issue. However, under the Court's inherent authority to keep this case moving along and running this trial in an efficient and fair manner, I had an order that came out that everyone has been complying with in large part. And that's the question: Is this in compliance with that or not?
MR. AGNIFILO: Very good. Give us some time and we'll come back.
THE COURT: I'll give you five minutes and we'll come back.
In the meantime, Ms. Smyser, what's the second issue? That's where we started.
MS. SMYSER: Yes, your Honor. There is another Defense Exhibit 1733, which I had various hearsay objections to. You had asked us to confer on that. We have conferred, and there are still a few hearsay objections that I have that the defense do not agree to.
THE COURT: Are they ones where you can circle them?
MS. SMYSER: Yes. Happy to pass it up to your Honor.
THE COURT: Can you just circle the ones where you have the objection, and while the defense is conferring for the next five minutes, I'll take it a look at it.
MR. STEEL: Your Honor, could we put our position, just email it to everyone? I think we emailed it to the prosecutors, is that true?
THE COURT: On the hearsay issue?
MR. STEEL: On this issue, yes, sir.
THE COURT: If you have an email, just send it to me. I'll take a look at it.
MR. STEEL: Mr. Driscoll will do that?
Thank you, your Honor.
(Recess)
THE COURT: The governments objections to Defense Exhibit 1733 are overruled.
Now, Mr. Agnifilo, or whoever wants to address this.
MS. SHAPIRO: Your Honor, hopefully I can answer all the Court's questions. These are the facts. And I apologize. I think we each saw this video at different times and -- but what happened was yesterday afternoon, in response to our observations about Mia's demeanor, myself and another member of the team found this video on the internet and then subsequently -- and we looked at it and were considering it. And then subsequently I think there were people on the internet who think they figured out who Mia is, and so Mr. Agnifilo as well as some of us also received emails or communications from random people on the internet with the same video and so we were thinking about using it. And then in her testimony -- so we were thinking about using it.
I just want to also add that the additional relevance is that, unlike the photographs, this has audio, and that is significant as well because it sheds another dimension to what you see about what she's saying and her message to Mr. Combs.
Also, this video, as far as we are aware, was not posted to her social media. And this afternoon or, rather, this morning in her testimony, Mia tried to explain away the social media posts by saying, well, that was, you know, a public thing that I was doing for my job, et cetera, and this is -- part of this is also a response to that because this was not, as far as we can tell, ever posted by her on social media. We found it on some other random website.
And also -- the other thing I'd just point out the video is like 30 seconds long. It's of the same nature as these photographs. There's no prejudice to the government, but we believe that Mr. Combs' defense would be severely prejudiced by not being able to show the jurors the video because we think it's not cumulative because of what it shows about her demeanor and because of the audio component to it. And there's no prejudice to the government.
And so for all of those reasons, your Honor, we think that there is no basis to preclude the video on this, you know, late production argument
THE COURT: Give me just one second here.
MS. SHAPIRO: And, your Honor, perhaps we should show the video so you can see what we're talking about.
THE COURT: All right. Let's see it.
MS. SMYSER: Your Honor, can I respond to Ms. Shapiro?
THE COURT: Can you just wait? Hold that for a second? Let me see the video. And I'm looking at something, and then we'll get back to you, Ms. Smyser.
(Pause)
THE COURT: Ms. Smyser.
MS. SMYSER: Your Honor, a few things. I heard from Ms. Shapiro that the defense was considering using this in cross-examination yesterday. They should have turned it over to the government then. And pursuant to the Court's order -- and I will point out that at 7:15, around that time last night, we got Exhibits 1751 through 1788, but we did not get Defense Exhibit 1750 and so -- you know, we got the rest of the exhibits while she was still on direct examination.
They waited until she was off of direct examination to turn this over prior to her -- in the middle of her cross-examination, and there absolutely is prejudice to this timing. If we had received this last night, we could have, for example, investigated on the internet, tried to figure out where this came from, tried to figure out what the purpose of this video was, who was filming it, what was going on in this video. But, quite frankly, I haven't had time to watch the video carefully, let alone do any of that investigation, which we could have done last night. But that -- with the timing of these events, that's just not how this shook out, and the defense should be precluded given they had this yesterday and were considering using it and likely marked it yesterday given the number of exhibits that we received. They shouldn't get to use it here. It's in violation of the Court's order.
THE COURT: You've now had a chance to watch the video?
MS. SMYSER: Not carefully, your Honor.
THE COURT: How much care is required?
MS. SMYSER: I'd like to be sure that I heard everything she says in the video.
THE COURT: I understand.
Ms. Shapiro, when did the defense team obtain this video?
MS. SHAPIRO: Your Honor, as I said, yesterday -- we saw it on the internet yesterday afternoon, after court.
THE COURT: When was it marked as Defense Exhibit 1750?
MS. SHAPIRO: I'm not sure exactly when. I think there was some effort made to make it -- to like redact it in case we wanted to use it, I'm not sure --
THE COURT: Was that done yesterday?
MS. SHAPIRO: I believe it was done late last night.
MS. SMYSER: And we received unredacted versions of the other exhibits, your Honor. So I don't understand why we couldn't have receive an unredacted version of this.
THE COURT: I understand.
The Court has reviewed the short birthday video clip that is Defendant's Exhibit 1750. It is precluded.
First, having now actually viewed the short video, the relevance and probative value of this video is minimal. While the defense argues that it is different in nature from an Instagram clip, having actually viewed the video, it is essentially a video that would be equivalent to an Instagram clip including Mia's use of hash tags at the end, #revolt. There is no content to the video that's different than the myriad Instagram clips and other materials that the defense properly disclosed.
So even if it had been properly disclosed, had there been an objection after the number of Instagram clips and other materials that the defense would have planned to use, the Court would have excluded it on Rule 403 grounds.
However, even if that were not the case, the Defense Exhibit would be excluded for failure to adhere to the Court's clear order that indicated that by 7:00 p.m. on each trial day, the defendant will provide the government with all exhibits anticipated to be used for purposes other than impeachment or to refresh a witness's recollection for the following trial day. That was not done.
Now, even if the defense team had received and marked this as an exhibit after 7:00 p.m., based on what we've heard here in court, it was certainly done yesterday and could have been turned over to the government in an attempt to comply, although belatedly, with the Court's order. That was not done either.
Certainly, the defense would have been aware on their rationale, which the Court thinks is dubious, that the video somehow undermines any inference the jury might draw from the witness' demeanor here in court. But even accepting that, the defense was aware of that yesterday, because the witness testified all of yesterday. So they would have known yesterday that they may use this exhibit and yet they apparently elected not to turn it over.
Even if there was some reason for that, it could have been turned over this morning. It could have been turned over before one of the early morning breaks.
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THE COURT: It wasn't turned over. In fact, it was turned over after the lunch break, right before cross-examination was set to begin, in plain violation of the Court's order, so it is independently precluded on that basis.
Anything further, Ms. Smyser, before we have our jury back?
MS. SMYSER: No, your Honor.
THE COURT: Anything, Mr. Agnifilo?
MR. AGNIFILO: No, your Honor.
THE COURT: Let's have Mia back.
MR. STEEL: Your Honor, can I ask a question.
THE COURT: Yes, Mr. Steel.
MR. STEEL: Thank you, your Honor. Am I precluded from just asking the witness if she did something like that? I don't want you to tell me it's excluded.
THE COURT: This order does not apply to the use of documents to try to refresh a witness' recollection. You can ask her about the video. If she denies having sent the video, then you can attempt to introduce it on impeachment grounds. If you can do it that way, then that's in compliance with the Court's order.
MR. STEEL: Thank you.
Your Honor, can I just one other question?
THE COURT: Yes.
MR. STEEL: Shortly I am going to ask about scrapbooks that the Court permitted.
THE COURT: Of course.
MR. STEEL: The prosecutor and I have a disagreement.
THE COURT: How do you want to do it?
MR. STEEL: I was going to hand -- there are three copies. I was going to give one to the witness, with the Court's permission, I was probably going to hold one, and I was going to ask the Court if I could have one for the jurors to just pass around. I thought that's what you said was OK, but I want to tell the Court. The honorable prosecutor and I have a disagreement. I believe the Court said any way I want to do it, including just hand it to the jurors -- not me hand it to the jurors. The prosecutor said that that this Court did not say to ever let the jurors handle that scrapbook.
THE COURT: Walk me through what you're planning to do with it.
What I don't want to happen, and what I think the prosecution was concerned about, is giving it to the jury so that they have an extended period of time to read all the various articles. That's not the reason why you're putting this in. You're putting it in to show the fact that there are a lot of articles and she put a lot of care into the creation of the scrapbook.
MR. STEEL: That's it.
THE COURT: I take it that you are planning to provide one copy to the jury for them to quickly review, meaning take a few seconds and hand it around, and then within a couple of minutes you are going to ask for the binder back, right?
MR. STEEL: That's exactly right.
THE COURT: On that basis, you can proceed in that fashion.
MR. STEEL: Then I have no other questions. Thank you.
THE COURT: Let's have Mia back, and then we will bring our jury out.
(Jury present)
THE COURT: Welcome back, members of the jury.
Mia, you understand you are still under oath?
THE COURT: Mr. Steel, when you are ready.
BY MR. STEEL: