We are over at the sidebar. You wanted to bring up the phenolphthalein matter. We are over at the sidebar.
I had something on the record while we are here and it relates to the prior juror so you may want to seal it, but in the D.A.'s office, and apparently at DPSS, there was an open case up until last year relative to Jeanette Harris.
Your Honor, if you are going to discuss that issue, can I ask that Mr. Neufeld and Mr. Blasier, who participated in writing the papers we submitted to the Court, come to the sidebar.
Your Honor, the People had three reasons for wanting the phenolphthalein test in, as we previously argued. No. 1 was that the door has been opened by the Defense by putting it in. They have put in some tests. They did not need to. It was not necessary to the point being demonstrated to put the results in of a positive test on the Bronco door. They did it because it received interest. There was no confirmatory test on that item at all, it wasn't collected. And the Prosecution now has the right to put in other phenolphthalein tests. They did not ask for any limiting instruction at the time.
The second reason that we wanted the phenolphtalein test in, your Honor, is because a tremendous amount of emphasis was placed by counsel on the fact that the report of the pheno positive result on the Bronco was not generated until a month and a half or so after, and he suggested that this indicated that Mr. Fung never in fact performed the phenolphthalein test. We can also show that there were phenolphtalein tests performed at the scene at Rockingham on item no. 11 that both Mr. Fung and Andrea Mazzola participated in where no report was written at all. We can show that no analyzed evidence report was written on the sink, the shower drains. We can show that there were phenolphthalein tests that came back negative, so I guess this wouldn't come within the scope of the Court's ruling on the Bentley, which Mr. Fung--where Mr. Fung did not generate an analyzed evidence report until later, but that in and of itself is not sufficient for me to demonstrate the purpose that I seek to elicit because I need to be able to show that even in the instance of positive phenolphthalein tests, he does not necessarily generate a report immediately or at all.
So it does rehabilitate him on a very significant point of counsel's cross-examination and I think perhaps one of the most important reasons is that counsel has elicited extensive testimony as to the absence of blood inside the Rockingham location, particularly in the shower trap, when we know that--excuse me--in the sink trap, when we know that in the sink drain there was a positive phenolphthalein test. And as I recall the scope of the--the Court's ruling at the time that we first breached this, was that the Court would not allow the introduction of phenolphthalein results or other evidence in a way that was misleading and what has been done is they have introduced evidence that clearly allows them to argue and clearly creates the inference that there was no blood in the sink trap when we know that there was in fact a positive phenolphthalein test in the sink drain itself, and that seems to run entirely afoul of the Court's ruling. I could see if they wanted to avoid the issue of phenolphthalein altogether, well, we won't discuss any phenolphthalein tests in the bathroom and we won't make big deal about it, we will just leave well an enough alone. And now to put in that evidence and to affirmatively allow the jury to hear that there is a negative in a location that is functionally equivalent of where we know there is a positive, is now turning 352 from a shield into a sword that allows them to argue that there wasn't any there, instead of just having a neutral record. It doesn't speak to the issue one way or the other.
As to the last issue, the sink trap and the drain, we went over this before. You explained what the parameters were, what would open it up, what wouldn't. We asked you about the question on the trap before it was asked. That was all done with your approval. I don't think that is a valid argument at all as to opening this whole area up. Saying that this opens the door doesn't--that is not the only issue. It is the gotcha philosophy, that we said something so therefore they can bring in all sorts of things that you have already ruled are inadmissible. That is not what the legal standard is. The legal standard is that they have to show substantial prejudice to justify going into other areas. If the Court is entertaining the notion of now going into positive pheno testing, we want a Kelly-Frye hearing. We want to be able to litigate that and we want to be able to litigate what the false positives are. We want to litigate all issues surrounding that. It is more than just all of a sudden they can ask the positive tests and go into that.
Well, now that you have gone into phenolphthalein test on the Bronco, don't you think the Prosecution is entitled to go into phenolphthalein testing on the Bronco?
I think that they can go into that one particular test that we brought up and we can probably even ask him isn't it your habit that sometimes you don't write a report, I think that is okay, too, but that is different from saying we are now going to look at other blood stains in other areas that have other factors.
Haven't you opened up at least the issue on the phenolphthalein test as to the Bronco?
Are there any other phenolphthalein tests on the Bronco that there is no confirmatory test for?
I don't think he ever collected anything from there. I think he just did the phenolphthalein and that also supports our view that he doesn't necessarily collect every time he gets phenolphtalein.
It is in the vehicle identification--I think it is in the search notes, but he did not write an analyzed evidence report.
And I think he also got a positive phenolphthalein test on the steering wheel at the seven o'clock position, but he may have collected a stain from that general vicinity.
I'm going to allow the People to go into phenolphthalein testing on the Bronco on the reports that were written, but that is the extent of it.
That is the extent of it. Also, the Defense may not argue the absence of any testing on the sink drain, argue during argument. Thank you, counsel.
Your Honor, can we get a limited instruction that it is not coming in for the truth of the test, allow evidence that he did get a positive phenolphtalein test on certain items and did not write a report for the purposes of buttressing what we feel is a very important issue of credibility?
Your Honor, before we go, Mr. Goldberg, is there any other videotape or photographs that you haven't shown us?
This--it would help us a lot if you guys would show exhibits to each other rather than waste probably over an hour of the Court's time today.
KEY QUOTEI understand that, counsel. I'm not arguing that issue, but all these other exhibits.
Now to put in that evidence and to affirmatively allow the jury to hear that there is a negative in a location that is functionally equivalent of where we know there is a positive, is now turning 352 from a shield into a sword that allows them to argue that there wasn't any there, instead of just having a neutral record.
That is the gotcha philosophy, that we said something so therefore they can bring in all sorts of things that you have already ruled are inadmissible. That is not what the legal standard is.
Also, the Defense may not argue the absence of any testing on the sink drain, argue during argument.
It would help us a lot if you guys would show exhibits to each other rather than waste probably over an hour of the Court's time today.