Defense attorney Blasier cross-examined DOJ DNA analyst Renee Montgomery, focusing on undermining the reliability of DNA methodology used in the case. He elicited admissions that the D1S80 system is relatively new and not highly discriminating, that the 18 and 24 alleles found on the socks are among the most common in the population (~30% each), and most critically, that there are no objective standards for distinguishing a 'hint' from a 'trace' — a distinction that can determine whether a sample is called an inclusion or exclusion.
# 2 MR. BLASIER: Thank you.
CROSS-EXAMINATION BY MR. BLASIER:
# 3 Q: For all of that list that you just gave us, where you said there was no --
# 4 MR. LAMBERT: I think I forgot one board. Can I ask one more question about it?
# 5 THE COURT: All right.
# 6 MR. LAMBERT: I'm sorry. It's number 297.
I forgot about the results.
# 7 (The instrument herein described as Chart entitled Results of DNA analysis, Rockingham Socks, was admitted into evidence as Plaintiff's Exhibit No. 297) # 8 Q: Can you see that, this overhang?
# 10 Q: These are the results for the Rockingham socks. And I'll just ask you to go through them fairly quickly for us
Item number 13 up at the top there, what was your D1S80 result on that?
# 11 A: Item number 13 is the socks, so the subnumber would be DOJ DNA 42A-1. And I found a D1S80 type of an 18, 18, which is consistent with Nicole Brown.
# 12 Q: And how about for the area that has DOJ number 42A-2, which we call 13A on the LAPD list, what was your result there?
# 13 A: Yes. The D1S80 type was a 24, comma, 25, which is consistent with Mr. Simpson.
# 14 Q: Okay. And for DNA number 42A-3, the DOJ number, what was your result there?
# 15 A: The D1S80 type was a 24, comma, 25, which is, once again, consistent with Mr. Simpson.
# 16 Q: And the area 42A-4 on the sock, the toe region, what is your result there?
# 17 A: The D1S80 type was a 24, comma, 25, once again, consistent with Mr. Simpson.
# 18 Q: And DNA number 42B-1, what was your D1S80 result?
# 19 A: The D1S80 type was a 18, comma, 18. That's consistent with Nicole Brown.
# 20 Q: And finally, the last one, 42B-2, your result there?
# 21 A: D1S80 type 18, 18, which is consistent with Nicole Brown.
# 23 MR. LAMBERT: I am now done, Your Honor.
CROSS-EXAMINATION BY MR. BLASIER:
# 24 Q: (BY MR. BLASIER) Ms. Montgomery, when you gave that list of items that there was no DNA present, isn't it more accurate to say that there was no DNA detected by that test?
# 26 Q: It doesn't mean there's no DNA there, does it?
There's a certain level of sensitivity to the test, isn't there?
# 28 Q: Now, how much time did you spend preparing to assist the plaintiffs in this case?
# 29 A: Approximately 16 hours, two days, maybe.
# 30 Q: About two days.
And how much have you charged the plaintiffs for that?
# 31 A: Nothing. I assume the State of California is getting paid by the plaintiffs. I'm getting paid.
# 32 Q: Do you know that?
# 33 A: Yes, they will be getting paid.
# 36 Q: In your preparation, did you ever actually go over a typed -- pretyped answer -- questions and answers with Mr. Lambert?
# 37 A: We reviewed some questions, yes.
# 38 Q: They were all a script of questions right?
# 39 A: There were some questions, yes.
KEY QUOTE # 42 Q: Do you have the list of questions with you?
# 44 Q: Now, when you did the tests, did the D1S80 test in this -- your lab had only been using this system in case work for a few months?
# 45 A: I believe we had been using it for about four months, I'd say.
# 46 Q: Of all the tests we've talked about here this morning, it's the newest, is it not?
# 48 Q: And were you here this morning to hear Dr. Cotton?
# 50 Q: Okay.
Between polymarker DQ Alpha and RFLP and D1S80, D1S80 is the newest?
# 51 A: Oh, no, no; I would not say that.
In our laboratory, D1S80 came online before polymarker did.
# 52 Q: I stand corrected.
Polymarker is a pretty new system, too, is it not?
# 54 Q: Okay. Now, the D1S80 system is not nearly as discriminating as the RFLP system?
# 56 Q: And in fact, in the D1S80 system, the 18 allele and the 24 allele are the most common within a population, correct?
# 57 A: Yes. Most individuals are the 18 or 24 being present in a genotype. It's common.
# 58 Q: What percentage of the Caucasian population has an 18 allele, roughly?
# 59 A: Approximately 30 percent.
# 63 A: We should clarify that.
# 64 Q: Well, Mr. Lambert can clarify if he likes.
24, how common is that?
# 65 A: Approximately 30 percent of the population would have one other allele as a 24.
KEY QUOTE # 66 Q: Thank you.
And between Nicole Brown Simpson and O.J. Simpson, there are three D1S80 alleles, the 18, the 24, and the 25, correct?
# 68 Q: And their children would have to have one of those three alleles or two of them, correct?
# 70 Q: They couldn't have any allele other than 18, 24, 25, correct?
# 72 Q: And of course, this system is not discriminating enough to allow you to separate people that have the same alleles, correct?
# 74 Q: And I notice you didn't give us any statistics here. That's because this is not a very discriminating system, correct?
# 76 MR. LAMBERT: Objection. Argumentative; assumes facts not in evidence.
# 77 Q: (BY MR. BLASIER) What are shadow bands?
# 80 A: Shadow bands are bands that would run below the primary band, an artifact of the gel system.
# 81 Q: So you can have bands show up that aren't DNA, correct?
# 82 A: You would have artifactual bands, correct.
# 83 Q: "Artifact" means something that appears real but isn't, correct?
# 84 A: "Artifact" would be something that was not an actually -- an actual band, but it was --
# 85 Q: But it shows up on the Autorad --
# 86 MR. LAMBERT: Object to not letting her answer the question completely.
# 87 MR. BLASIER: I'm sorry. Go ahead.
# 88 RENEE MONTGOMERY: That would show up on a gel.
But for it to be determined by seeing it in your composite ladders.
# 89 Q: You talked about with some of these tests as possible traces.
Are you saying that you can -- well, we just said "you." When you talk about a shadow band and there's a certain amount of subjectivity involved in the interpretation of these results as there is with DQ Alpha and polymarker, is there not?
# 91 Q: No subjectivity at all?
# 92 A: It's fairly -- it's an objective test. The subjectivity would come into play by experience. Experience on -- I wouldn't call it subjectivity.
# 93 Q: Some of these things are subject to interpretation, aren't they?
# 94 A: Correct. One must interpret.
# 95 Q: And you use terms such as "hints" and "traces" in your lab, do you not?
# 97 Q: And the difference between a hint and a trace is what?
# 98 A: A hint is a possible banding pattern; there's something that would be seen in the gel, but you don't feel confident that it is actually a band.
A trace would be a very faint band that you feel confident is a band.
# 99 Q: And it takes subjective judgments to decide whether something is a hint or a trace, doesn't it?
# 100 A: It takes experience to determine if something is a hint or a trace.
# 101 Q: Are there any standards at all that are used to determine the difference between a hint and a trace?
KEY QUOTE # 103 Q: And when you call something a hint, you're saying I see a band there, but we're going to say it's not real, right?
# 104 A: We're saying that there is a possible band present.
# 105 Q: We're not going to call it DNA, right?
# 106 A: That we don't feel comfortable calling it a band, correct.
# 107 Q: And a trace is where there's something that looks like a band there, and we'll call it DNA, right?
# 108 A: It is a band; it's not something that appears to be a band.
# 109 Q: It's a very light band, isn't it?
# 111 Q: Just like a hint, isn't it?
# 113 Q: We're talking about very light bands, aren't we?
# 114 A: It's a faint band.
# 115 Q: Sometimes you call them DNA, sometimes you don't, right?
# 116 MR. LAMBERT: Objection. Argumentative.
# 117 THE COURT: Overruled.
Answer the question.
# 118 RENEE MONTGOMERY: No. If there is a band present, you call it a band.
# 119 Q: (BY MR. BLASIER) If you're not sure if the band is present, if it's a faint indication of some activity in a lane, it's not called a band which can mean the difference between an exclusion and an inclusion, can it not, when you call it a hint or a trace, can't it?
# 121 Q: Thank you.
How many items of evidence did you test using the D1S80 system?
# 122 A: I would have to go through and count.
# 123 Q: Can you give me a rough count?
# 125 MR. BLASIER: Your Honor, perhaps we can take a break to give her a chance.
# 126 THE COURT: Going to be a while?
# 127 RENEE MONTGOMERY: No.
Oh, in excess of 50 samples.
# 128 MR. BLASIER: Okay.
And can we show it on the Elmo here, please.