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Questions Arising From Friday’s Developments in Simpson Case

September 9, 1995

Some questions and observations from lawyers and legal analysts about Friday’s appellate court ruling on jury instructions:

Q: What does the ruling mean?

A: The jury will not be told by Superior Court Judge Lance Ito of Mark Fuhrman’s ``unavailability″ or that it can consider that unavailability in weighing his credibility. The former detective invoked the Fifth Amendment while technically still under cross-examination, outside the jury’s presence. ``Clearly, we are very disappointed that the jury will not know the true reason why Mark Fuhrman did not complete his cross-examination,″ defense attorney Robert Shapiro said.

Q: Why did the appeals court reject Ito’s decision to inform the jury about Fuhrman’s unavailability?

A: ``The law is clear,″ said Los Angeles County District Attorney Gil Garcetti. ``You cannot comment on any individual taking his Fifth Amendment privilege for refusing to testify.″ Said Eleanor Swift, an evidence professor at the University of California, Berkeley, Boalt Hall School of Law: ``The instruction was very confusing to the jury _ they wouldn’t know what it meant.″

Q: What were Ito’s options?

A: The higher court gave him two choices _ comply or explain. Ito chose to accept the court’s ruling and withdrew the instruction.

Q: Will Fuhrman be recalled as a witness?

A: Highly unlikely, said Robert Pugsley, a professor at Southwestern Law School. ``That’s a decided issue. Under California law, he cannot be made to come in front of the jury and invoke the Fifth Amendment.″

Q: What can the defense do?

A: Loyola University law professor Laurie Levenson said the defense can ask Ito to reconsider whether Fuhrman had a right to invoke his Fifth Amendment. ``It’s an interesting issue, whether the judge will allow the defense to reopen the question,″ Levenson said.

Q: Is the defense hurt?

A: Not necessarily, Pugsley said. ``The jury will be told, as with any witness, including of course, Mark Fuhrman, that if they disbelieve one portion of that witness’s testimony, they are entitled, but not required, to disbelieve other portions of that witness’s testimony.″ He said the defense already has undermined Fuhrman’s credibility by showing he lied when he testified that he had not used a racial epithet during the past 10 years.

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