Your Honor, the Court's proposing a limiting instruction, and I was wondering if the Court would at least allow me to ask whether he did phenolphtalein testing without what the results are, just did he do a test, did he write an analyzed evidence report.
I would object because the implication is that those all came back positive, which is exactly the danger that the Court's ruling is supposed to prevent in terms of the fact that these are nothing but presumptive tests, that there are other things that can bring in false positives, negatives. Depends on how scientifically sound the presumptive tests are. So the only reason to ask this question is to bring out the inference that it would cause.
Well, if counsel stipulates this witness did in fact test the Bronco in July and got a positive phenolphtalein test, then I don't need to ask that question. That's the only reason that I'm presenting it. And if he's either proposing to concede or stipulate to that fact, we absolutely don't need it. It's irrelevant. But without that stipulation, I think that that is a relevant piece of evidence.
KEY QUOTEThe Court will abide by its prior ruling and sustain the objection. Also, keep an eye on the jury from time to time. I've caught two of them nodding today. So--
How about if we take a stretch? Can we let the jury stand up and take a stretch for a minute?
Next time we have a sidebar, I'll suggest that. In fact, why don't we stay up here a few more minutes, and I'll suggest they stand and stretch a little bit.
The only reason to ask this question is to bring out the inference that it would cause.
If counsel stipulates this witness did in fact test the Bronco in July and got a positive phenolphtalein test, then I don't need to ask that question.
Also, keep an eye on the jury from time to time. I've caught two of them nodding today.