Jury instruction: disregard phenolphtalein test

📄 Jury instruction: disregard phenolphtalein test — Wednesday, April 26, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\26\JURY-INSTRUCTION-DISREGARD-PHE.DOC

TRIAL

▲ Day 62 of 167

◀ Sidebar: phenolphtalein test admissibility Cross-examination of Andrea Mazzola (part 3) ▶

Date: Wednesday, April 26, 1995 • Utterances: 8

Judge Ito instructed the jury to disregard testimony from criminalist Andrea Mazzola about a positive phenolphthalein presumptive test on a wire, because no confirmatory test was performed to establish it was actually blood. The judge clarified that Mazzola's testimony about collecting a swatch from the wire could still stand.

# 1 (The following proceedings were held in open Court:)

# 2 THE COURT:

Thank you, counsel. All right. Ladies and gentlemen, with regards to Miss Mazzola's testimony concerning the testing of the wire using the phenolphtalein presumptive test, I'm going to direct you to disregard her testimony that she got a positive result from that test. The reason for that is, phenolphtalein is a--what is called a presumptive test. It only means that it's possible that blood is there, but other things also give a positive test. And unless there is a test to confirm that it is in fact blood and human blood, then you should not consider that result. So since there is no confirmatory test on this particular wire, you are to disregard the fact that there was a positive phenolphtalein test on the wire. All right. Thank you. Mr. Neufeld.

# 3 MR. NEUFELD:

Thank you, your Honor.

# 4 THE COURT:

I will allow the testimony to stand however as to her taking the swatch.

KEY QUOTE

# 5 MR. NEUFELD:

Oh, yes, taking the swatch and putting it in a bag.

# 6 THE COURT:

Yes.

# 7 MR. NEUFELD:

Okay.

# 8 THE COURT:

Proceed.

Temperature

procedural

Key Quotes (2)

Lance A. Ito

phenolphtalein is a--what is called a presumptive test. It only means that it's possible that blood is there, but other things also give a positive test. And unless there is a test to confirm that it is in fact blood and human blood, then you should not consider that result.

The judge directly explains to the jury why the test result is being struck -- a rare moment of judicial scientific instruction that underscores the evidentiary standards for blood evidence.

Lance A. Ito

I will allow the testimony to stand however as to her taking the swatch.

Ito draws a precise line: the collection action is admissible, but the test result without confirmation is not.

Evidence (2)

Informal

Wire tested with phenolphthalein presumptive test by Andrea Mazzola; positive result struck from record

testimony disregarded by jury instruction

Informal

Swatch collected by Mazzola from the wire

collection testimony allowed to stand

Notable Exchanges (1)

Lance A. Ito•Peter Neufeld

Neufeld briefly clarifies with Ito that Mazzola's testimony about taking and bagging the swatch remains in evidence, and Ito confirms.

cooperative

Credibility Attacks (1)

⚔ Andrea Mazzola

evidentiary exclusion

Her phenolphthalein test result on the wire was struck from the record due to the absence of a confirmatory test, undermining the evidentiary value of her forensic work at this stage.

Objections

None recorded

Proceeding 5811 • 8 utterances

Criminal Trial

Department 103