How O.J. Got the Fuhrman Tapes (and You Can Get Out-of-State Materials)

Almost everyone knows about the trial of O.J. Simpson for the murders of Nicole Brown Simpson and Ronald Goldman. Many people also know about a key piece of evidence introduced by the defense—taped interviews in which one of the investigating officers, Los Angeles Police Department detective Mark Fuhrman, used racial slurs. Less well known is the legal mechanism that the defense team used to obtain the tapes, which were in the possession of a North Carolina writer who refused to turn them over voluntarily. How did O.J.’s lawyers compel a resident of North Carolina to produce the tapes in faraway Los Angeles, California? This post reviews the procedure used in the O.J. case and other ways to obtain out-of-state materials in a criminal case. What Doesn’t Work Let’s look first at what doesn’t work. An ordinary North Carolina subpoena does not obligate a person in another state to produce records in a North Carolina case. The United States Supreme Court held long ago, in the 1902 case of Minder v. Georgia, 183 U.S. 559, 562 (1902), that a state court does not have the power “to compel the attendance of witnesses who are beyond the limits of the state.” So, in the O.J. case, the defense team could not have used and did not use an ordinary California subpoena to compel production of the Fuhrman tapes. The North Carolina State Bar has stated further that it is unethical for a North Carolina attorney to mislead an out-of-state entity that an ordinary [...]