📄 Sidebar: expert testimony admissibility — Wednesday, December 18, 1996
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▲ Day 34 of 57

Sidebar: expert testimony admissibility

Date: Wednesday, December 18, 1996 • Utterances: 51
Defense attorney Dan Leonard argues at sidebar for the admissibility of expert testimony that a photograph (likely Exhibit 1930) shows indicators of alteration, including evidence it is a duplicate negative and signs of air-brushing and matte technique. Judge Fujisaki presses Leonard to clarify exactly what the witness will and will not be able to say, ultimately overruling the objection and allowing the testimony after distilling Leonard's argument himself.
1 (The following proceedings were held at the bench, with the reporter.)
2 THE COURT:

What's your offer of proof on digitizing?

3 MR. LEONARD:

I want to -- what I want to demonstrate is that, if you use the state-of-the-art digital equipment and you do the proper cover-up, if you will, techniques, you -- it's very difficult to discern.

4 THE COURT:

Is that his opinion that's what was done in this case?

5 MR. LEONARD:

He doesn't know.

No -- look --

6 MR. GELBLUM:

I asked him in his deposition. He didn't mention that.

7 THE COURT:

Wait a minute.

8 MR. LEONARD:

Wait a minute. Okay.

You can combine all of these techniques if you want to. For instance, if you -- if you digitally manipulate a photograph and you don't see something, like you -- like you can air-brush it or use some other technique, the point is, it's extremely difficult to -- to discern digital manipulation. That's all I'm going to elicit from him. That -- that these techniques can be combined. These --

9 THE COURT:

Let me ask you.

10 MR. LEONARD:

No here --

11 THE COURT:

May I ask you a question --

12 MR. LEONARD:

Yes, of course.

13 THE COURT:

-- please.

What is it exactly that this witness is going to testify to with regards to --

14 MR. LEONARD:

He is going to say --

15 THE COURT:

-- on 1930?

16 MR. LEONARD:

I'm sorry.

17 THE COURT:

Is it 1930.

18 MR. LEONARD:

He's going to say there are several indicators of it, that the picture has been manipulated. There's a whole list of them. For instance --

19 THE COURT:

He's not going to be able to testify as to how it was done?

20 MR. LEONARD:

No. And he can --

21 THE COURT:

Then I'll -- excuse me. You know, if you let me talk, we'll get through this a lot faster.

He is going to say there's something wrong with the picture; is that right?

22 MR. LEONARD:

Um-hum.

23 THE COURT:

All of those techniques are various techniques that he knows of, and can alter the picture, but he doesn't know which one affected it?

24 MR. LEONARD:

He sees indications of air-brushing. He also sees the fact that the -- that the -- that the -- as he's described here, that there's some indication that elements are out of register which are an indicator of matte technique.

25 THE COURT:

Is he going to testify that there are some elements of digitizing?

26 MR. LEONARD:

No. He's going to say that you can't -- you can't tell whether it's been digitized, if it's -- it's one point that -- that it's a very sophisticated technique. All right? And can I -- I'll explain it to you.

He's going to say it's a very sophisticated technique, and that you can -- you can rephotograph the digitally created image with, for instance, with a type of film that has a rather large grain, and it masks the pixelization. The way you can determine whether a photograph has been digitally manipulated is because it has a very distinctive -- I'll call it grain structure. It's really pixels.

27 THE COURT:

Is he going to testify that that exists, too?

28 MR. LEONARD:

What?

29 THE COURT:

Is he testifying that that exists in this photograph?

30 MR. LEONARD:

You can't tell whether it exists.

31 THE COURT:

Then I'll sustain the objection as to that aspect.

32 MR. LEONARD:

Can I -- one more. Can I make one more point?

33 THE COURT:

Sure.

34 MR. LEONARD:

One more point.

There's evidence that this -- that the photograph -- that what was represented to us as being an original negative is a duplicate negative, if -- that it's out of register. There's a couple different points.

There's no legitimate reason for what was represented to us in the original negative to be a duplicate negative. That is, there's very strong circumstantial evidence that it's been -- it's been tampered with.

And my point is that, if there -- if there were more than one method -- for instance, if there was masking, if there was air-brushing, and underneath all of that, there had been an original digital manipulation, if it's done right, you wouldn't be able to see the original digital manipulation.

It's like, we've got a murder case going here with circumstantial evidence. There's circumstantial evidence that the photograph has been altered in two of these ways.

And the photograph also went -- went to Paris or London and back on a Concord.

35 MR. BAKER:

London.

36 MR. LEONARD:

That's pretty unusual. That came out in Scull's deposition. There's some -- there's a lot -- there's a lot of circumstances surrounding the photograph that are unusual.

The guy claims he lost his camera and his camera was rebought --

37 THE COURT:

Just stay --

38 MR. LEONARD:

All I'm trying to argue is that there are circumstantial indicators that this -- beyond the actual looking at the photograph or where it lines up with the others on the contact sheet, which indicated -- indicate that it was duplicated, or at least there's a suspicious break in the chain of custody.

39 THE COURT:

See if I understand your argument.

Your argument is that his testimony is going -- and some other evidence, or some evidence is going to show that these are duplicate negatives.

40 MR. LEONARD:

This is a duplicate negative.

41 THE COURT:

And that -- that is an element that you contend is supportive of an opinion that it's been tampered with?

42 MR. LEONARD:

Yeah. That's a reason, yes.

43 THE COURT:

If you just let me talk, we'd get through this real fast.

And that you'd like to ask him about the digitizing, because that is one of the methods that can be used to alter it.

But this witness could not establish that, in fact, was the one that was used, only that it can -- that could have been used, and he would not be able to know.

44 MR. LEONARD:

No. But it's extremely difficult, if not impossible, as their expert has admitted, if it's done right, in the proper --

45 THE COURT:

So your main contention is that, if you feel there's sufficient evidence in which this witness can say that there are elements to support an argument that it was altered, because there was a duplicate negative, and that part of the altering could be by various methods, including digitizing?

KEY QUOTE
46 MR. LEONARD:

Exactly.

47 THE COURT:

But he can't say that is the case here or not?

48 MR. LEONARD:

He can't with regard to the --

49 THE COURT:

Okay. Overruled.

50 MR. GELBLUM:

Your Honor, may I be heard?

51 THE COURT:

No. I think --

Temperature

tense

Key Quotes (4)

Dan Leonard
It's like, we've got a murder case going here with circumstantial evidence. There's circumstantial evidence that the photograph has been altered in two of these ways.
Leonard explicitly frames the photo manipulation argument as a circumstantial case — mirroring the prosecution's own trial strategy against Simpson — to justify admitting testimony that cannot definitively identify the alteration method.
Hiroshi Fujisaki
You know, if you let me talk, we'll get through this a lot faster.
Reveals the judge's frustration with Leonard's rambling and sets the tone of Fujisaki actively driving the legal analysis himself.
Dan Leonard
The photograph also went -- went to Paris or London and back on a Concord.
Introduces a chain-of-custody anomaly — the photo's unusual international travel — as circumstantial evidence supporting a tampering theory.
Hiroshi Fujisaki
So your main contention is that, if you feel there's sufficient evidence in which this witness can say that there are elements to support an argument that it was altered, because there was a duplicate negative, and that part of the altering could be by various methods, including digitizing?
Fujisaki synthesizes the defense's argument more clearly than Leonard did, effectively writing the ruling himself before issuing it.

Evidence (3)

1930
A photograph the defense contends has been altered; the original negative appears to actually be a duplicate negative with signs of air-brushing and out-of-register elements suggesting matte technique
discussed, challenged
Informal
Contact sheet showing the photograph's placement, which defense argues indicates it was duplicated
discussed
Informal
Scull deposition testimony regarding the photograph traveling to London and back on the Concorde, and the photographer losing and repurchasing his camera
referenced

Notable Exchanges (3)

Hiroshi FujisakiDan Leonard
Fujisaki repeatedly interrupts or tries to interrupt Leonard's long-winded explanations, twice noting that if Leonard let him speak they'd move faster. Fujisaki ultimately restates Leonard's argument back to him in clean legal terms, which Leonard confirms with 'Exactly.'
tense, judge-controlled
Dan LeonardPeter Gelblum
Gelblum notes that the witness never mentioned digitizing in his deposition, raising a scope/disclosure issue. Leonard does not directly refute this before the judge redirects.
strategic
Dan LeonardRobert Baker
Leonard says the photo went to 'Paris or London' and Baker corrects him: 'London.' A small moment showing co-counsel coordination.
routine

Light Moments (1)

Robert Baker
Leonard says the photo 'went to Paris or London and back on a Concord' as if that clinches the tampering argument; Baker dryly corrects 'London.'

Credibility Attacks (1)

⚔ prosecution's photograph (Exhibit 1930)
physical evidence challenge — duplicate negative, chain of custody anomalies
Defense argues the item represented as an original negative is actually a duplicate, the photo traveled internationally under unusual circumstances, and the photographer lost and replaced his camera — all circumstantial indicators of tampering.

Objections

1 objections (1 sustained, 1 overruled)
Proceeding 8715 • 51 utterances
Civil Trial
Department 103
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📂 DEC 18, 1996 📄 Sidebar: expert testimony admi
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