Well, the conventional serology board is the one we've seen already and we're objecting to some of the entries on that board.
Why don't you pop the easel around backwards, please, and let's discuss the matter. Have we marked this with a number yet?
All right. The title of this chart is "Serology results chart." And would there be any objection, so that the record is clear, to mark it at this time as People's next in order? Mr. Goldberg?
All right. We'll refer to the serology results chart as People's 202. And, Mr. Blasier, what are your objections to the conventional--what appears to be a conventional serology chart?
Our objections are, under the EAP column, there are a number of entries in there that indicate that something was determined to be inconclusive, and then there's a typing next to it. We have no objection to the inconclusive being there, but what we do object to is then having a typing after something has been determined to be inconclusive. I have never seen a situation where a criminalist has called something inconclusive and then called a typing on it. I don't think that's common practice with forensic scientists. I don't think it's appropriate here and I would object to having any kind of typing on that chart unless there's some testimony from Mr. Matheson that this is a common practice within the forensic community to find something to be an inconclusive and then give it a type.
Well, apparently in the case of People versus Riley, they did present--in which electrophoresis testing was upheld, they did present evidence of an inconclusive. But here what the Court--this is not a legal issue as far as I'm concerned. This is just an issue of fact for the jury to decide. It's like when a handwriting expert comes in and says, "This is consistent with being a person's writing, but I can't be a hundred percent sure."
Weight, not admissibility. I don't know if the Court wants me to say more. I mean, I can explain to you why we're presenting this.
Do you have any case authority that I should allow an inconclusive but indications of?
Well, we can look at People versus Riley where Siliente (Phonetic) I'm sure the Court has ruled that it is admissible because it was contained in the opinion.
Well, refresh my recollection. Does Riley specifically deal in its fact situation with electrophoresis and inconclusive results that are indicative of one particular blood type?
I believe they mention that that evidence was introduced and they simply were directed to the admissibility of electrophoresis testing. But just so the Court can understand, what makes it inconclusive, with respect to erythrocyte acid phosphatase, it is an interpretation. There's a certain subjective aspect to it that is not involved, for example, the PGM subtype determination where you're simply looking at banding patterns, which with erythrocyte acid phosphatase, EAP, you are also looking at the intensity of the bands. And Mr. Matheson would testify that the only reason that he has these as inconclusive is because the bands are not intensive enough for him to say it's conclusive. Now why is it that the Prosecution is putting this in or why is it actually vital information for us to have? Because the items under Nicole Simpson's fingernails, the blood, has degraded from a BA to a b and it is reported as a b, an EAP b, which is inconsistent with BA, hers. But we know it has degraded. We know that circumstantial. And according to the literature, the forensic science literature, and according to what Mr. Matheson would say, one of the ways that you can establish that circumstantially is by looking at blood that is a circumstantial exemplar; in other words, blood that we know circumstantially has to be hers and figuring out what's happening to it.
We have such an instance with respect to item no. 42, which is the pool of blood that was under Nicole Brown. We can simply--we can tell it only by looking at the photographs that that is her blood. We know what the result is on the EAP test. It has to be a BA because it's her blood and we can see it. We don't need a forensic scientist to tell us that. It is a BA. Every juror on this jury is going to know it is a BA circumstantially. Yet, when we test it, what result do we get on item 42? We get an inconclusive B. And why do we get that? We get it because the a bands have disappeared, which they do according to the literature, and we have two b bands, but the b bands are weak, which shows that the sample is degraded and shows that it could easily have been mistyped as a b if only those bands were slightly more intense. This is not coming in for the purpose of proving that the Defendant is guilty. It's not coming in for the purpose of proving that the blood is consistent with the Defendant's blood. It is coming in for the purpose only of showing what is happening to blood that circumstantially we know has to be the victim's. And from that, we can make a logical inference as to what is happening to the blood under her fingernails.
There is absolutely no doubt whatsoever legally not only that this should come in, but that it has to come in and that it's extremely important for it to come in, and we've been told in the forensic science literature that you're not even supposed to make a call that something is a b unless you've looked at what's happening to the blood underneath the victim or on the victim's clothing to determine whether there is evidence of degradation. And here we know for sure that not only that it's degrading, but it is degrading in such a way that it leads us to believe erroneously that the pattern is a B. This is not coming in for the truth of the matter asserted. I'm not arguing that 42 is in fact a B. Mr. Matheson is not going to be testifying that it is in fact a B. What we are trying to show is that it isn't a b, but it looks like one. And that's of vital importance in explaining why the blood under Nicole's fingernails looks like a b, but isn't one.
Just a couple of points. First of all, Riley doesn't talk about the point, last time I read it, about calling something an inconclusive and then typing it. We certainly do not agree that the electrophoretic gram for 42 is the same as the fingernails. So we don't concede that at all. That's something we will litigate extensively. Finally, their own reports, Mr. Matheson's reports and Mr. Yamauchi's report categorize these as inconclusive, not inconclusive a or inconclusive B. They're inconclusive. That's the way they read them the first time. Now, unless there's some foundation that this is the correct way to forensically describe the reading that they made in their original report, we would object to it.
Well, the chart comes in simply because it reflects the testimony. I don't know what specifically the Court's referring to when you say foundation in this connection. What this reflects is, it reflects information that is culled from the analyzed evidence reports and the serology item description notes.
I will provide it to the Court. I'm sorry. I didn't know we were going to take this up tonight. And as I said to the Court, I didn't say that the Court ruled on this point. I did say that in that particular case, the evidence had been admitted.
All right. Mr. Blasier, do you have any case authority you want me to consider over the evening?
No. I did have one other thing. Reading from their reports, when they talk about these being inconclusive, they said, "Therefore, no statement can be made regarding a potential source." That clearly conflicts with what they have on this chart.
But the point is, your Honor, that almost without asking the expert, if we were forced to, we could show them the electrophoretic, the electrophoresis photographs and you can see what's happening. I mean, I don't know whether--perhaps maybe I haven't given the Court enough information about how EAP works, but you can actually--
No, you don't need to explain that. I just want to know, do you have any legal authority for your position other than Riley?
No. I'll look, and I don't believe I do. But I don't perceive this to be a legal issue. There's--I mean they just don't want it in.
It's called foundation. That if your report--I mean, you have to establish a foundation for any scientific testing, correct? And they're challenging it.
But what's the foundation? The foundation is that the concept is accepted in the community. It was done correctly.
Do you have a case that says inconclusive EAP results are admissible? Yes or no? Yes or no?
KEY QUOTEI have never seen a situation where a criminalist has called something inconclusive and then called a typing on it. I don't think that's common practice with forensic scientists.
This is not coming in for the purpose of proving that the Defendant is guilty... It is coming in for the purpose only of showing what is happening to blood that circumstantially we know has to be the victim's.
Reading from their reports, when they talk about these being inconclusive, they said, 'Therefore, no statement can be made regarding a potential source.' That clearly conflicts with what they have on this chart.
Do you have a case that says inconclusive EAP results are admissible? Yes or no? Yes or no?
I don't.