Rufo v. OJ Simpson - Right Of Publicity

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Page 22 PAGE 21 86 Cal. App. 4th 573, *604; 2001 Cal. App. LEXIS 41, **56; 103 Cal. Rptr. 2d 492, ***514; 2001 Cal. Daily Op. Service 759 Fuhrman by the prosecution [***514] in the criminal case was not a substitute for plaintiffs' right to cross-examine in the present case. Furthermore, plaintiffs' objection was not too late. [*605] Evidence Code Section 1292 Evidence Code section 1292, subdivision (a) provides: "Evidence of former testimony is not made inadmissible by the hearsay rule if: [P] (1) The declarant is unavailable as [**57] a witness; [P] (2) The former testimony is offered in a civil action; and [P] (3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing." (Italics added.) This section "provides a hearsay exception for former testimony given at the former proceeding by a person who is now unavailable as a witness when such former testimony is offered against a person who was not a party to the former proceeding but whose motive for cross-examination is similar to that of a person who had the right and opportunity to cross-examine the declarant when the former testimony was given. . . . [P] . . . The trustworthiness of the former testimony is sufficiently guaranteed because the former adverse party had the right and opportunity to cross-examine the declarant with an interest and motive similar to that of the present adverse party. Although the party against whom the former testimony is offered did not himself have an opportunity to crossexamine the witness on [**58] the former occasion, it can be generally assumed that most prior cross-examination is adequate if the same stakes are involved." (Assem. Com. on Judiciary, com. on Assem. Bill No. 333 (1965 Reg. Sess.) reprinted at
Page 23 29B pt. 4 West's Ann. Evid. Code (1995 ed.) foll. @ 1292, p. 392, italics added; 7 Cal. Law Revision Com. Rep. (1965) p. 253.) n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The Law Revision Commission and legislative committee comments to the Evidence Code are particularly valuable in construing the code. (1 Witkin, Cal. Evidence (4th ed. 2000) Introduction, @ 16, pp. 25-26.) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As these terms apply here, the parties to the prior proceeding were Simpson, as the criminal defendant, and the People of the State of California, represented by the District Attorney of Los Angeles County, as the criminal prosecutor. The former testimony of Fuhrman in the criminal trial was offered in the present civil trial by Simpson, the civil defendant, against Sharon Rufo, Fredric Goldman, and the representatives of the estates of Ronald and Nicole, [**59] the present civil plaintiffs, none of whom was a party to the prior criminal proceeding. The trial court reasoned that the prosecution in the prior criminal trial did not "cross-examine" Fuhrman at all, but rather directly examined him as a prosecution witness. It stated: "The precise language of section 1292 states [*606] 'cross-examine.' Section 1291 of the Evidence Code allows former testimony to be used against the [same] party that offered it in the prior
Page 1 and 2: Page 1 SHARON RUFO et al., Plaintif
Page 3 and 4: Page 3 Other physical evidence from
Page 5 and 6: Page 5 People v. McCray (1997) 58 C
Page 7 and 8: Page 7 Nancy Ney was a director of
Page 9 and 10: Page 9 Simpson contends "a period o
Page 11 and 12: Page 11 kill her, but also serves t
Page 13 and 14: Page 13 Cal. 3d 573, 584-587, 209 C
Page 15 and 16: Page 15 and to explain her conduct
Page 17 and 18: Page 17 weighing process, shows the
Page 19 and 20: Page 19 evidence about any score on
Page 21: Page 21 implanted in the minds of t
Page 25 and 26: Page 25 - - - - - - - - - - - - - -
Page 27 and 28: Page 27 be bound by the manner in w
Page 29 and 30: Page 29 head. Simpson appears to re
Page 31 and 32: Page 31 by SID in the laboratory, b
Page 33 and 34: Page 33 opinion as to the validatio
Page 35 and 36: Page 35 But the presumption of prej
Page 37 and 38: Page 37 - - - - - - - - - - - - - -
Page 39 and 40: Page 39 jury award, however, was in
Page 41 and 42: Page 41 Punitive damages are not aw
Page 43 and 44: Page 43 Freeman also reviewed the d
Page 45 and 46: Page 45 memorabilia shop in Manhatt
Page 47 and 48: Page 47 likeness in the future; Sim
Page 49 and 50: Page 49 italics added.) In Devlin v
Page 51 and 52: Page 51 limited economic damages re
Page 53 and 54: Page 53 PAGE 38 86 Cal. App. 4th 57
Page 55 and 56: Page 55 PAGE 39 86 Cal. App. 4th 57

Rufo v. OJ Simpson - Right Of Publicity

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