Recross-examination of FBI photograph expert

📄 Recross-examination of FBI photograph expert — Thursday, January 16, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\16\RECROSS-EXAMINATION-OF-FBI-PHO.DOC

TRIAL

▲ Day 43 of 57

◀ Redirect examination of FBI photograph expert Sidebar: evidence admissibility ▶

Examiner: Dan Leonard
Called by: Prosecution • Date: Thursday, January 16, 1997 • Utterances: 33

The recross of the FBI photograph expert lasted only two brief answers — the witness confirmed he had no knowledge of who handled the photographs or what was done with them. The proceeding then shifted to a contentious sidebar (in open court, jury excused) over whether defense could introduce evidence that Rob MacElroy was commercially marketing the photographs, which defense argued went to motivation and authenticity challenges.

# 1 A:

No, sir, I don't.

# 2 Q:

You have no idea who had it and what they did with it, do you?

# 3 A:

No, sir, I do not.

# 4 MR. LEONARD:

Thank you.

# 5 MR. GELBLUM:

Nothing further.

# 6 THE COURT:

You may step down.

# 7 THE WITNESS:

Thank you, sir.

# 8 MR. LEONARD:

Your Honor, I'd like to approach.

# 9 THE COURT:

Jurors, you're excused for about ten minutes. Don't talk about the case; don't form or express any opinions. (Jurors exit courtroom.)

# 10 THE BAILIFF:

Please be quiet in the courtroom. We still are in session.

# 11 MR. GELBLUM:

Your Honor, you just want to do it here?

# 12

THE COURT: Right (indicating to counsel table.) (The following proceedings were held in open court outside the presence of the jury.)

# 13 MR. PETROCELLI:

On this issue is the McElroy photographs, I'm just warning you --

# 14 MR. LEONARD:

Really, Judge Petrocelli.

# 15 THE COURT:

Will you stop that.

# 16 MR. LEONARD:

No. He started it.

# 17 THE COURT:

Counsel, you want to get in the fact that somebody's renting these pictures out?

# 18 MR. LEONARD:

Yeah.

# 19 THE COURT:

Get it in. But do it by laying proper foundation. I'm not going to let you put that before the jury based upon cross-examination of an expert who has nothing to do with renting the photographs. You have somebody to lay foundation for that, put him on.

# 20 MR. LEONARD:

We just got this document from MacElroy. We'll bring him in. We'll have to bring him on Tuesday.

# 21 THE COURT:

No. He's not going to come in on Tuesday.

# 22 MR. LEONARD:

We just got this document. We just get these photographs. It's -- as you know, we have been complaining all along, and now you're going to not let me do this. They were allowed to put the photographs before they were authenticated in front of my expert without any notice. I can't do that with this from MacElroy about the photographs that he's sending out all over the country. I don't think that's fair.

# 23 MR. PETROCELLI:

Are you finished? Couple things, Your Honor. They've known about Rob MacElroy since July 1 when they took the Scull deposition. At no time did they ever attempt to take any discovery from him and they knew that he was marketing photographs. Secondly --

# 24 MR. LEONARD:

This --

# 25 MR. PETROCELLI:

Excuse me. This witness said it makes no difference in his analysis of the authenticity --

# 26 THE COURT:

Mr. Petrocelli, it doesn't make any difference with regard to this particular witness. It is a relevant piece of evidence, and defense ought to have an opportunity to put it before the jury to show motivation. What it goes to and how much weight it carries, that's for the jury to decide.

# 27 MR. PETROCELLI:

I would suggest --

# 28 THE COURT:

Now, there's more than one way to skin a cat, and that doesn't mean you have to bring in, necessarily, the person who circulated that item.

# 29 MR. LEONARD:

Someone who received it, right.

# 30 THE COURT:

Why don't you use your lawyerly skills and find the way to skin that cat.

KEY QUOTE

# 31 MR. PETROCELLI:

Your Honor, I just want to make an objection for the record. I think this is collateral at this point. He's already established from Mr. Flammer that the photographs are being sold and --

# 32 THE COURT:

Counsel --

# 33 MR. PETROCELLI:

Other photographs not involving Mr. MacElroy, and if we have to go down that route, we're going to have to call somebody in to meet that evidence, Your Honor, and I don't want to have to --

Temperature

tense

Key Quotes (4)

Witness

No, sir, I do not.

The expert concedes he has no chain-of-custody knowledge for the photographs he authenticated — the core point of the recross.

Judge Fujisaki

It is a relevant piece of evidence, and defense ought to have an opportunity to put it before the jury to show motivation. What it goes to and how much weight it carries, that's for the jury to decide.

Judge rules the MacElroy photo-marketing evidence is admissible in principle, rejecting plaintiffs' collateral objection.

Judge Fujisaki

Why don't you use your lawyerly skills and find the way to skin that cat.

Judge declines to grant a continuance for MacElroy but signals defense can find another foundation witness.

Mr. Leonard

They were allowed to put the photographs before they were authenticated in front of my expert without any notice. I can't do that with this from MacElroy about the photographs that he's sending out all over the country.

Defense argues procedural unfairness — plaintiffs used unauthenticated photos on them, now blocking defense's late-breaking MacElroy document.

Evidence (2)

Informal

Document from Rob MacElroy showing he was distributing/marketing crime scene photographs

discussed, foundation dispute — defense seeking to admit, court requires proper foundation witness

Informal

McElroy/MacElroy photographs (crime scene photos being commercially circulated)

discussed in sidebar; prior sale activity mentioned re: Flammer testimony

Notable Exchanges (2)

Mr. Leonard•Mr. Petrocelli

Leonard calls Petrocelli 'Judge Petrocelli' sarcastically; Petrocelli had apparently been speaking over or directing proceedings. Judge Fujisaki had to intervene — 'Will you stop that.' Leonard's response: 'He started it.'

combative, almost juvenile

Judge Fujisaki•Mr. Leonard•Mr. Petrocelli

Judge rules MacElroy photo-marketing evidence is relevant to show motivation, overruling Petrocelli's collateral objection, but refuses to allow a Tuesday continuance for MacElroy himself — tells Leonard to find another foundation witness.

firm, pragmatic

Light Moments (2)

Mr. Leonard

'He started it.' — Leonard's response to the judge after being told to stop calling Petrocelli 'Judge Petrocelli'

Judge Fujisaki

Judge uses 'more than one way to skin a cat' and tells Leonard to use his 'lawyerly skills' to find that way

Credibility Attacks (1)

⚔ FBI photograph expert (Flammer)

chain-of-custody gap

Leonard elicited that the expert had no knowledge of who possessed the photographs or what was done with them, undermining the foundation for his authenticity opinion.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 8833 • 33 utterances • Prosecution witness

Civil Trial

Department 103