Back on the record. All parties are again present. The jury is not present. Mr. Goldberg, are you prepared to commence?

Yes, your Honor.

Mr. Neufeld, let me ask you just one quick question before the topic leaves my thought process here. I noted a number of times, three times in particular during the course of your cross-examination of Miss Mazzola while you were standing, I saw you turn in response to noises made in the audience, specifically by the cameras. Was that distracting you?

All right. Let's have the jurors, please.

Your Honor, he also showed me some photographs he wanted to use and I told him I object to them. I don't know if you want to do it before the jury comes in.

Yes. Hold them. Let's see them.

I'm sorry. I didn't hear what the Court just said. You want to see them?

Yes.

May I approach?

You may.

All right. I have seen the two photographs. Mr. Goldberg, what is the relevance and need for those?

The relevance of this is that they show a variety of stains in the area where item no. 12 was collected and inside the foyer of the home, three of which appear to be the stains that were collected by Miss Mazzola and Dennis Fung, three of which appear not to be. And the proffer is that there were additional stains in that area. It goes to the issue of taking representative samples. It goes to the issue of the criminalist not necessarily being able to spot or spotting each and every tiny little stain that was in that house. The Defense has seemed to suggest that they have some sort of a homing device for blood, and if there is a tiny little speck of blood, somewhere they are going to find it. And what we are trying to show is no, they are human beings and that there can be things, shall little specks that are overlooked, and in this case there apparently were.

What is the--tell me about those photographs.

These are photographs that were provided to us in Defense discovery, so obviously they were taken after the time of the--of the crime, and my proffer as to how they can be linked up is that the jury can do it themselves, because if you compare these carefully to I a that contains item no. 12, which actually happens to be in one of these photographs, you can see that three of the stains are in fact the same as three of the stains in the Defense photograph, so obviously it was taken after. It is obviously of the Rockingham location and this witness can identify that.

Is that Dr. Lee who is in one of those photographs?

Yes.

Your Honor, no. 1, there is no foundation as to when these other stains are observed. More importantly, your Honor, what is in that picture, if you take a look, are cards with swabs on them and the swabs are--they appear to be greenish black in color, so this witness testified about some presumptive test that she did where--where swabs turn--

Magenta.

--magenta. There is no foundation as to what these swabs that are green or greenish blue or greenish black are actually showing here. Since we don't know when it was taken, when the stains existed, no. 2, since the stains are not red on those cards, but show these different swabs, I think there is frankly a likelihood here that it is going to confuse the jury. It is certainly going to necessarily distort the meaning of those cards because I don't even think this witness is qualified to interpret what is going on with those cards in those swabs that have turned green.

I take this as a foundational objection?

Foundation and 352.

Mr. Goldberg.

I don't know. It didn't seem to me that we were requiring witnesses to have been present at the time photographs were taken when they were asked to lay a foundation for that photograph or to have even observed the events that were depicted in the photograph or the videotape and that seems to be consistent with--

Such as?

Well, such as witnesses testifying about a videotape, seeing Detective Vannatter drive up when they weren't present.

That objection was withdrawn.

But I think there have been other instances and there was an instance where a witness was shown pictures of a police officer walking up a driveway. These witnesses have been shown photographs that were taken of the crime scene prior to when their evidence collection was--took place to show that items were removed. They had no personal knowledge of that. You can authenticate a photograph in a number of different ways. I'm not suggesting that those rulings are necessarily wrong. I'm suggesting that this is consistent with those rulings in the sense that you can lay a foundation for a photograph by having a witness say, "Do you recognize the foyer?" "Yeah, I recognize the foyer." "How do you do it?" "Because I was there."

Excuse me?

What he is doing there?

How do I know what it is he is doing there and what the significance of the swabs is?

It doesn't make any difference of the significance of the swabs. The point is that you can see areas where there appear to be tiny little stains. Admittedly, the resolution on this photograph isn't great, but you can see this and they also appear to match up with stains that we know are there, because we saw them in photograph number--with item no. 12 in it.

All right.

Can we have one second, your Honor?

All right. Thank you, counsel. The foundational objection will be sustained. Let's have the jury.

And counsel, just so you have an FYI, we are going to stop with the jury at four o'clock. We have some doctor's appointments.

Judge, which motions are you going to hear this afternoon?

Good question. I have a whole list of them. I thought we would go over them.

Is that tomorrow or today?

That is today. I thought we would go over and set a schedule for that.