The December 11, 1989 Tape - Menendez Brothers Trial

Defense experts give testimony with their analysis of the Dec. 11 tape. The tape is played. Additional information about the tape below.

00:00:00 Dr. Burgess (direct)
00:21:36 Dr. Conte (direct)
00:54:17 the tape (turn on subtitles)
01:58:41 Dr. Burgess (direct)
04:14:04 Dr. Conte (direct)
04:15:35 Dr. Conte (cross)
05:06:19 Dr. Conte (redirect)
05:27:31 Dr. Burgess (direct)
05:47:41 Dr. Burgess (cross)
07:08:45 Dr. Burgess (redirect)
07:55:49 Dr. Burgess (recross)
08:12:42 Dr. Burgess (redirect)

In the 1st trial, the tape was played before both juries.Lyle Menendez jury: https://www.courttv.com/title/88-ca-v...

The Dec. 11, 1989 tape is the only tape from a session with Dr. Oziel which has Erik and Lyle's voices on it. Other session tapes included only Oziel’s dictation of notes. The Dec. 11 session lasted several hours. 48 minutes were recorded.

Erik Menendez attended a session with Dr. Oziel on Oct. 31, 1989. Erik confessed to Oziel that he and his brother Lyle killed their parents on Aug. 20, 1989. Lyle didn't know Erik had confessed. Dr. Oziel then called Lyle and asked him to come to the office.  

(Oziel started seeing the Menendez family in 1988. Sessions held prior to Oct. 31, 1989 between Oziel and the Menendez brothers and between Oziel and Kitty and Jose Menendez remained privileged)

The brothers attended a second session on Nov. 2, 1989.
Both the Oct.31 and Nov.2 sessions were the subject of testimony for Dr. Oziel in the first trial.Dr. Oziel didn't take notes during the sessions. Any written notes he made after a session, he dictated onto tapes. Oziel let the brothers know he had made tapes.

There were also sessions on Nov. 28, 1989 (only Erik Menendez) and Nov. 29. Both remained protected by therapist-client privilege. A couple of sessions were held in Dec. , they too were privileged. (Oziel didn’t have notes on those and not all sessions dealt with the subject of the killings.)

-The Menendez brothers attorney at the time, Gerald Chaleff, testified in a hearing that he was unaware of Oziel's continuing involvement in the brothers' lives until December of 1989.
In early Dec. of 1989, Erik and Lyle Menendez gave Dr. Oziel permission to consult Chaleff. Chaleff and Dr. Oziel met on Dec. 8, 1989. Dr. Oziel told Chaleff that he planned to continue the therapy sessions. At some point after this meeting, Chaleff decided that continuing therapy could be helpful because “if there was a trial. this might be good for the penalty phase, if there ever was one.” Chaleff explained the situation as follows: “Well, Dr. Oziel came over [to] my house and we had a conversation, and then the result was that we were going to have a meeting with Lyle and Erik and Dr. Oziel and myself as soon as we could.” Chaleff said Oziel told him that the brothers had made a statement to him in reference to the homicides.

On Dec.11, 1989 (the day the ‘confession tape’ was recorded) Chaleff and Oziel met for an hour before the session was recorded. Chaleff said he wasn’t aware that a tape of the session was made until after the brothers were arrested. The brothers were aware a recording of the session was made by Oziel.

-After an almost two year legal battle over the admissibility of Oziel’s tape recorded notes and the Dec. 11 recording, the California Supreme Court rejected a lower court's ruling in Aug. 1992 that gave prosecutors access to the tapes from all four disputed sessions. The justices agreed that two of the meetings (Oct. 31 and Nov. 2, 1989) were not confidential because Oziel stated he felt threatened and information was revealed to a third party (Judalon Smyth)
But the court ruled the two other sessions (Nov. 28 and Dec.11) would remain private. The Dec. 11 session was then off-limits for the prosecution.

Following the brothers’ testimony in the first trial, Judge Weisberg ruled the Dec. 11 tape could be admitted because the brothers made their mental state a central issue in the trial. The defense tried to keep the tape out by arguing for attorney-client privilege (suggesting the brothers agreed to continue to meet with Oziel at the advice of Chaleff) And on grounds of the therapist-client privilege ruling of 1992.
In Nov. 1993, the defense played the tape before both juries.

Before the start of the second trial, the defense argued the Dec. 11 tape should remain privileged until the brothers present their defense. And that it should only be admitted if a foundation is laid by calling Dr. Oziel to the stand. Judge Weisberg ruled that any secrecy of the tape ended when it was played in the first trial and that sufficient foundation can be laid through the testimony of detective Zoller who obtained the tape. The prosecution did not call Dr. Oziel to the stand for the retrial. The tape was played before the jury within the first few days of the prosecutions case-in-chief. Expert testimony analyzing the Dec. 11 tape was not permitted in the second trial.