US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003

BENCH: ADMISSION OF ORIGINAL LIST OF ITEMS

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 AFTERNOON SESSION
 April 5, 1977
Whereupon, the following proceedings were had and entered of record on Tuesday afternoon, April 5, 1977, at 1:30 o'clock, P.M., without the jury being present and the defendant being present in person:
THE COURT:  I reserved ruling on the offer of Exhibit 178. Is Mr. Lowe here?
MR. TAIKEFF:  He's not, Your Honor, but I'm here in his place.
THE COURT:  Very well. But he was the one making the argument.
MR. TAIKEFF:  I understand. I didn't want the Court to be inhibited, though.
THE COURT:  Thank you. Which is the 302 and the reason I reserved ruling is because that Rule 612 on 302's does present a bothersome question. However, I find that Winstein discusses it this way:  That section 612(05), and this is not with specific reference to 302's, but it's with reference to writings, "Clearly the writing should not be give substitive effect in every instance. To allow otherwise would undermine the usual modes of introducing evidence and would permit bypassing of best evidence authentication and hearsay rules in many instances. Rather this provision must be understood as allowing the jury to examine the writing, one, {3144} as a guide to assessing the credibility of the witness; and two, to the extent that it would have otherwise, that it would otherwise have been admissible for its normal evidential value.
On the basis of that discussion and on the basis of the Government's objection to the exhibit the objection is sustained.
The jury may be brought in.
MR. TAIKEFF:  Your Honor, could we approach?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF:  Your Honor, I spoke with Mr. Hanson about a matter that I thought I would raise with the Court, and that is the fact that Friday is Good Friday and this weekend is Easter weekend. I know there may be special considerations for the jury. I have been informed by Mr. Hanson that according to the local rules Good Friday is a Court holiday.
THE COURT:  I was intending to ignore it, but go ahead.
MR. TAIKEFF:  I was intending, even before I knew it was a local holiday, for the Court purposes to ask Your Honor, unless Your Honor thought that the jury would be seriously inconvenienced, to recognize the holiday and take a three day weekend.
THE COURT:  Well, the reason I was intending to ignore it was twofold one, because it's a Christian holiday and we're {3145} dealing with an Indian defendant here; and two, because of the fact that the jury would be idled for three days.
And I have recognized that it is normally a holiday in this district.
What's the Government's position on it?
MR. HULTMAN:  Well, I think the first consideration is the jury, Your Honor. I indicated to counsel I wouldn't join in it because at the request I have made the Court has indicated on those one or two limited occasions that it felt, because of the jury being in the posture that they are, that that ought to be a primary consideration. And I feel it ought to continue to be.
THE COURT:  I just am very reluctant to have that jury sit for three days.
MR. TAIKEFF:  I can understand that. Actually I didn't mean to make it sound as if I was pressing I merely wanted to make inquiry.
THE COURT:  Yes. Thank you.
MR. LOWE:  Before we leave the sidebar, Your Honor, let me give this to you. I don't know if Mr. Crooks has this. In order to try and meet the Court's ruling anticipated and the Government's objection, Government Exhibit 180 is a handwritten list which is quite difficult to read. The witness has already identified the 302 which I believe is Government, or Defense Exhibit 178. I think that was the number.
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THE CLERK:  178.
MR. LOWE:  Yes, 178. And has said that it accurately reflects the information that he had in his notes. Now, the only possible objection I can see the Government would have to introduce the 302 would be as to headings and dates and names that are associated with it, because clearly the contents have already been identified by the witness as being identical to the contents that he discloses on his handwritten notes.
I believe that we are entitled to have a legible copy to work from and to use with the jury, and this is an extract of the 302 which this witness has already identified as being an accurate list. I represent to the Court that I have no reason to believe that there's any difference between this and 180.
I will, if the Court wants, go again and let the witness look at it exhaustively, or Government counsel, but we do not intend to try and show any difference between 180 and the 302. That's not the purpose. My main purpose is to have something legible that we can work with.
This I intended to offer as an exhibit, 180-A, and to represent it simply as a typed-up copy of the handwritten notes. That is, the list of items that are contained therein. It does not contain some of the extraneous items that are shown in the handwritten list, particularly like I think a couple of names of people that are not related to what he found.
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THE COURT:  This is taken off the yellow --
MR. LOWE:  The witness says this was taken off of the yellow notes when he dictated it, and he dictated it and he adopted this as being accurate. And I represent that as far as I know it is accurate.
The objectional part of the 302, if there is anything, must be in the extraneous information which I have eliminated by the zerographic method with this document, and I wanted to advise the Court before we get in the middle of a thrashing match out in open court that I will offer it as Exhibit 180-A.
If necessary I will have the witness read the list more carefully and readopt this. But I don't think there's any reason to believe the lists are not the same. They are some, if you look at the first page, there are some names and things which I did not try to extract. The information I want is simply the list of items that he found.
MR. CROOKS:  Well, Your Honor, we certainly take issue that 180 is not completely legible. It's absolutely every entry --
THE COURT:  All right. But what is your objection to this list?
MR. CROOKS:  Your Honor, it goes to the same thing. Counsel is attempting apparently to condense this witness's testimony into some sort of document, and that is not a proper purpose of any document.
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If counsel has items he wants to bring out he can do it orally. But, Counsel, we've gone through this again and again on 302 forms, or lists or whatever counsel is attempting to substitute the 302 for the testimony. And this goes back to the same thing that the Court had ruled on numerous times that if counsel can show some relevance to a particular part there's no problem.
Counsel is just trying to put in documents in summary or whatever he's got in his mind in lieu of offering oral testimony. If there are items on this list I have no objection if counsel will give the list to the witness and have him refresh his memory and indicate that certain items are in fact found. I just, I never seen a case where counsel has attempted again and again to put in documents in lieu of testimony.
MR. LOWE:  Judge --
MR. CROOKS:  Because you're, if counsel were putting it in for some usual, normal purpose such as impeachment, then that's one thing. But counsel is just trying to summarize testimony and put in things that really have no particular bearing or anything. And it's improper, it's an improper way to put the evidence in.
THE COURT:  Well --
MR. CROOKS:  I've offered, and I do again, that if counsel wants to put in 180 because it was referred to by the United States, I have no problem with that. I won't even {3149} object to that.
But to keep putting in the 302 forms I think is an improper way to establish way to establish facts. And counsel knows how to go through the items that are material and to bring them out.
THE COURT:  The items listed here, are they taken --
MR. CROOKS:  I don't really know, Your Honor. I understood the witness's testimony to be that they are substantially the same. Some of them are not. For instance, the last list found in the trunk, one item was scratched out here and apparently when it was reproduced in the 302 they have a different series of numbers because of the item which was scratched out. And I don't know why it was scratched out. But I don't know, I have not compared them.
MR. LOWE:  Judge, this is ridiculous argument. That is not a 302, that is a typewritten list which the witness has identified as being the same as in there. Now, if the Government were objecting to 180 I think this is nothing but harassment. The Government says they don't object to 180, but they object to a typed copy which is to make it more legible.
This is 180-A. Now, this witness has said that he has no independent recollection. The best evidence is the documentary evidence, 180-A let's say for the moment, because he can give no oral testimony -- would you let me finish, I {3150} let you finish -- he has no oral testimony. To make him read the list is nothing more than to what the jury can do, and the jury is the finder of fact. He might misread the list.
Talking about best evidence, that is the best evidence, and he has testified to the effect that that's the best evidence. Now, all we ask is that we be allowed to utilize a typewritten copy which is more legible, and let the Government, if the Government finds some error in there, or mistake, I'll be happy to correct it.
I represent to the Court that I know of no such error. I don't suspect that there's any such error, and I'm introducing it to show some error between the two at all. But I think I'm entitled to have a legible copy that I can use to examine with the jury.
Now, I'd like to add one further point that Government counsel cleverly eliminates, and that is when you have a long list, I think there must be a hundred items in this list, there's no way on God's earth that that jury can remember all of the various ammunition components and calibers when they get back in that jury room. That was testified to. If the man just reads the list. One of the purposes of a document is to allow the jury to go back and review and to look at things and to check what the evidence was. This is no different than the Government introducing a photograph of the fingerprint. {3151} The best evidence there, you could argue, is the witness's testimony saying that the prints are the same and therefore you don't need to clutter the record with fingerprints. That's patently absurd as much as it is here.
Obviously the jury has an opportunity then to look at the fingerprints and make its own comparison, similarly to look at these exhibits and make their own comparisons on the basis of relying on these.
Now, there's absolutely no distinction between those two of any legal consequence, and all this is is a typewritten list of 180. And I would propose to make it 180-A and identify it to the jury as such and introduce 180 myself so that the jury can make a comparison. But for reference, and so that the jury has a clean copy to look at, I want to introduce a typed copy of it. And I think that's entirely proper under the rules, and I will offer 180. In addition, I'll offer them together.
MR. CROOKS:  All right. Well, Your Honor, this is, was my point. That this is the exhibit. If there's validity to what counsel says then 180 is the exhibit, and if counsel feels that this does not show it, and this is in fact an exact copy, and I don't know if it is or not, but if it is in fact, then I wouldn't have any problem.
If counsel wishes to represent that this is a typed copy of 180 then I don't have any problem. But if counsel is {3152} trying to establish the list, then 180 is the list.
MR. LOWE:  I said I'll offer 180 and 180-A as a typed copy.
MR. CROOKS:  You talked for about five minutes --
MR. LOWE:  You just stopped and I was responding.
MR. CROOKS:  Well, catching my breath, that doesn't mean I stopped.
My point is is that this was offered, or not offered by the Government, but referred to for a very specific purpose which I made clear when it was first brought up. Counsel has implicated a fabrication, and I have elicited testimony to show that there was a contemporaneous record made. And I have no problem with counsel offering 180 for whatever purpose he wishes to offer it. But the typed list in lieu of 180 is not correct.
If this is in fact a typed list and it corresponds with that, then I have no problem with it being offered as a typed copy of 180. But counsel, that isn't what he came up here for. Counsel came up here to introduce 180-A in lieu of 180. 180 is the exhibit. If there's any validity to what counsel --
MR. LOWE:  Judge, I don't know why Mr. Crooks has stopped listening to me. What I came up here for, that was nothing more than to do that, and would be offered for nothing more than a typewritten list for 180, and that's all I offer {3153} them for.
MR. CROOKS:  That came about the mid part of your argument.
MR. LOWE:  That was the first thing I said. That this is a typed list, that's all I offer it for. And I would offer them together so that the jury can take both of them.
There's parts that have been tattered away, so in that case the 302 would be the best evidence. But I'm willing to let this typed list go in. The witness has identified it as being the same. I assume that he's correct.
THE COURT:  It isn't the same exactly.
MR. CROOKS:  As I pointed out there is a renumbering of one item struck out. I believe item 14. Every item from there on has moved up one. So they aren't exactly the same. But I don't know. I have not compared them.
But if the witness is willing to say that this is a fairly accurate list in comparison and they're introduced for the limited purpose of showing the reproduced copy of that, then I would withdraw my objection.
THE COURT:  Well, I thought --
MR. LOWE:  That's all I offered it for. The Judge heard the same thing I said.
MR. CROOKS:  You came up offering this.
MR. LOWE:  As a typewritten copy of 180.
MR. CROOKS:  You didn't say anything about that until {3154} I stated my position, then you said we'll offer 180.
MR. LOWE:  But the Judge was listening to me and heard what I said.
THE COURT:  Well, anyhow, 180, if it's offered, will be received.
MR. LOWE:  I will offer that, Judge.
THE COURT:  And this then --
MR. LOWE:  180-A.
THE COURT:  -- will be 180-A.
MR. LOWE:  Fine.
THE COURT:  And received as a typewritten copy of the items listed on 180.
MR. CROOKS:  The only thing I would ask is that the witness be given an opportunity to make at least a brief comparison, because I don't know -- if that's the state of the record then we withdraw the objection.
THE COURT:  I assume that's the way it was going to be done.
MR. LOWE:  Yes, sir
(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
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