Your Honor, the next witness is Dr. Bruce Weir, who's been called to testify to frequency numbers for DNA mixtures. I am making a motion that he be excluded from testifying for the following reasons:
We had a stipulation with the plaintiffs in this case, that with respect to experts that testified in the criminal trial, if their civil trial testimony was going to be the same, then we would save money and time by not taking their depositions, since they weren't going to say anything different. We relied on that in not taking Dr. Weir's deposition.
This morning, I had a paper passed to me just across the table, giving a whole new set of numbers, frequency numbers, that are different from what he testified to at the criminal trial.
Further, there is one statistic on here regarding the frequency of the combined 303, 304, 305 of the Bronco that was a completely new figure. There was never frequency testified to about that at the criminal trial.
Mr. Lambert indicated he used the same method but he came up with different numbers. I asked if there were any work papers. He said, no, he doesn't have any work papers.
Some of these numbers are substantially different. One of them with respect to stains G1 and G2 on the Rockingham glove, the number that he testified at the criminal trial as the most frequent occurrence was 1 in 3,000. It's now 1 in 6 billion.
These are substantial differences. We have not had any discovery on this. We object to him -- them calling this witness at this time based on violation of the stipulation that they signed.
Yes, Your Honor, Dr. Weir did testify at the criminal trial about this very same subject matter, frequency calculation, just to mixtures.
He's not talking about the single stains, but the mixtures only, and the only number that wasn't presented at criminal trial was one for the 303, 304 and 305 combination because that -- at the time that he testified that test hadn't been done.
It was done later in the case so that's the only new mixture number that he's testifying to.
Other than that, he's recalculated some of the mixture numbers and, in fact, he published these results. They know them. Everyone's seen them. They've been published in journals. That is accessible to everyone.
It's basically the same testimony as before. The numbers are slightly different, but it's the same methodology that he's got on the report.
In fact, you might remember, Your Honor, it was at their insistence that mixture calculations be put into evidence. They insisted that we put those into evidence at the beginning of the case. That's why we are about to do it.
Your Honor, the law requires statistics under People versus Barney. These statistic mixtures aren't available. The difference in 1 and 3,000 and 1 in 6 billion is a substantially new calculation, something new.
I would move to exclude the new stain, 303, 304 and 305. I would also move to exclude any testimony about these new numbers. We've had no discovery about them at all.
You just finished telling me that the test wasn't made until later. How could they not be new numbers?
KEY QUOTEI agree 303, 304 and 305 is a new number. At the time of his testimony that item had not been tested by the underlying laboratory. Very late in the criminal case they did an RFLP test on 303, 304 and 305.
All he's done is add that one new calculation using the same methodology that he already testified three days in the criminal trial about -- all this methodology.
He's now calculated, used the same methodology to calculate it for that one stain that he did for all the other mixtures. That's the only thing that's new. And it's not even new. It's only just the same apply to the same formula in the computer to a new set of data. So there's nothing new about that.
I'm inclined not to permit him to testify unless he's subject to a deposition.
KEY QUOTEIf you want, Your Honor, we can present him for a deposition, they can ask him about these numbers and we can call him later.
I'm not prepared to do a deposition this afternoon based on new numbers I'm given this morning with no new discovery, no work papers.
KEY QUOTEHe doesn't have work papers.
This a computer program. He simply takes the data from the Department of Justice that's already been presented, it's already in evidence, and he applies the computer program to it and he gets statistics out of it. And that's what he's prepared to testify about.
One of them with respect to stains G1 and G2 on the Rockingham glove, the number that he testified at the criminal trial as the most frequent occurrence was 1 in 3,000. It's now 1 in 6 billion.
You just finished telling me that the test wasn't made until later. How could they not be new numbers?
I'm inclined not to permit him to testify unless he's subject to a deposition.
I'm not prepared to do a deposition this afternoon based on new numbers I'm given this morning with no new discovery, no work papers.