We're at the sidebar. I think I made a mistake by putting this mat here because you guys will feel welcome to stand there and feel comfortable. Mr. Neufeld, the appropriate way to deal with a nonresponsive question--nonresponsive answer to your question is to ask the Court to strike the question and answer and admonish the jury, not to cut the witness off. You have a very bad habit of cutting witnesses off, especially this witness. I have admonished you a number of times. I don't want to have to do it in front of the jury, impose sanctions, but if I have to, I will.
What I'm concerned with, your Honor, is, this witness volunteered information that she had--
This witness volunteered information the Court had already ruled was inadmissible in this case; namely, that they did a pheno type test on that wire. That had been the ruling of the Court. The People knew about that ruling. I'm sure they must have informed the witness not to bring it up--
--bring it up unless it was explicitly inquired as to in questioning. I did not ask any question at all that caused her to start testifying to the phenolphtalein test results on that wire. I simply asked her about color and collection and she all of a sudden on her own volunteered that business about the phenolphtalein test, which is improper.
Hold on. What's the status of the--was there any subsequent testing done on item 11?
No. But there were swatches of--oh, yes, there was subsequent testing. I'm sorry. There was.
That's actually not correct, okay. There's never been a confirmatory test on it, which I think is the Court's question, by anybody doing DNA testing or any confirmatory test. So therefore--
I'm worried about this because it should not have been told to the jury. And frankly, Mr. Goldberg had a duty to advise the witness that those phenolphtalein tests were inadmissible unless they were explicitly gone into.
Yes, your Honor. On the wire, the only thing that's happened, Andrea Mazzola did a presumptive phenolphtalein. DOJ did a different presumptive. There was insufficient sample to do anything further. They came up with a negative on the stain, but came up with a positive on the substrate control so that you have basically nothing on the wire.
In other words, even more important--because in fact what happened is that DOJ did not get a positive phenolphtalein test on the evidence. Miss Mazzola claims she did. So that's it. So it should have never been alluded to.
KEY QUOTEI'm asking your Honor to order it stricken and order the jury to disregard those answers and those questions.
Okay. the problem is, he's dancing around and around and around this issue and there's no way that she can explain what she did with that type of phenolphtalein test. My understanding of it is, from her testimony in addition to what I've been told before, that you can't see anything on that wire, that they--or she couldn't at least. maybe Mr. Fung did. I think Mr. Fung did. But she phenoed it and she got a test. She's collecting almost at random from the area where she got positive tests.
Okay. All right. Then I'm going to tell them to disregard the report that there was a positive phenolphtalein result.
This is a huge mountain out of a molehill.
Even more important--because in fact what happened is that DOJ did not get a positive phenolphtalein test on the evidence. Miss Mazzola claims she did. So that's it. So it should have never been alluded to.
They came up with a negative on the stain, but came up with a positive on the substrate control so that you have basically nothing on the wire.
Mr. Goldberg had a duty to advise the witness that those phenolphtalein tests were inadmissible unless they were explicitly gone into.