ALL RIGHT. BACK ON THE RECORD ON THE SIMPSON MATTER. DEFENDANT IS AGAIN PRESENT BEFORE THE COURT WITH COUNSEL, PEOPLE ARE REPRESENTED. WE HAVE ONE MORE MATTER WE NEED TO RESOLVE BEFORE WE INVITE THE JURY TO JOIN US. THAT IS AS TO THE PROSECUTION'S OFFER OF PRESUMPTIVE BLOOD TESTS. MR. GOLDBERG.
OUR MEDIA RELATIONS DIRECTOR ASKED ME TO HAVE THE COURT ACKNOWLEDGE WHAT TO ME IS OBVIOUS. THAT IS THE TAPE -- THAT THE INVENTORY OF THE TAPES THE COURT WANTS WOULD BE FROM JUNE 12TH AND OF COURSE ONLY TAPES RELATING IN SOME MANNER AT ALL TO THIS CASE.
YOUR HONOR, I HAD AN ADDITIONAL CITATION THAT I WANTED THE COURT TO LOOK TO, AND IT'S PROFESSOR IMWINKELRIED TREATISE ON SCIENTIFIC EVIDENCE, AND SPECIFICALLY PAGE 532 WHICH DISCUSSES ADMISSIBILITY OF PRELIMINARY BLOOD TESTING AND DISCUSSES THE PHENOLPHTALEIN TESTS AND ALSO CITES COLEMAN WHICH I PREVIOUSLY CITED TO THE COURT. AND I -- THE REASON THAT I'M BRINGING THIS TO THE COURT'S ATTENTION IS BECAUSE I BELIEVE HIS INTERPRETATION OF COLEMAN IS THE SAME AS THE INTERPRETATION THAT I OFFERED TO THE COURT WHEN I FIRST CITED IT, AND I'LL SUBMIT IT TO COUNSEL, A COPY TO COUNSEL. MAY I APPROACH?
COULD I BEG THE COURT'S INDULGENCE TO MAKE ONE MORE BRIEF COMMENT ON THE OTHER MATTER? THE DRAIN -- THE DRAIN AT THE DEFENDANT'S RESIDENCE WAS -- THE TRAP WAS REMOVED ON THE 13TH AND THAT WAS THE EXTENT OF THE PLUMBING, WHATEVER THAT WAS DONE. I JUST CLARIFIED THAT WITH MR. FUNG HIMSELF.
YOUR HONOR, NOT FOR PURPOSES OF ARGUMENT. JUST TO CLARIFY WHAT IS THE ISSUE HERE. AND THAT IS THAT THE PEOPLE WISH TO INTRODUCE EVIDENCE OF THE -- A PRESUMPTIVE POSITIVE IN A PHENOLPHTALEIN TEST. SO WE'RE DEALING HERE RIGHT NOW WITH THE PHENOLPHTALEIN TEST AND WE'RE DEALING WITH THEIR REQUEST TO INTRODUCE EVIDENCE OF THE POSITIVE RESULT. ONE OF THE THINGS THAT I POINTED OUT, YOUR HONOR, IS THAT A NEGATIVE RESULT IS OF THE COMPLETELY DIFFERENT NATURE. IT IS A CONCLUSIVE TEST. IT MEANS THAT THERE COULDN'T POSSIBLY BE BLOOD THERE. SO TO LUMP THE ADMISSIBILITY OF NEGATIVE RESULTS WITH POSITIVE RESULTS FOR THE PHENOLPHTALEIN TEST REALLY RAISES A COMPLETELY DIFFERENT ISSUE.
THEY DID -- THEY DID PRESUMPTIVE TESTING ON STAINS ALL OVER THE PLACE. FOR INSTANCE, THEY SAW REDDISH STAINS ALONG THE SOUTH WALL OF THE HOUSE, THE POLICE DID.
THOSE ARE NEGATIVE. THERE'S ALLEGATIONS OF CERTAIN STAINS FOUND IN OTHER PLACES IN THE HOUSE AS WELL, MR. SIMPSON'S HOUSE. THEY TESTED THOSE. THOSE WERE NEGATIVE.
ALL RIGHT. WHAT'S THE NATURE OF THE PLUMBING? YOU INDICATED THAT FALSE POSITIVES COME FROM COPPER PLUMBING. WHAT'S THE NATURE OF THE PLUMBING AT THE SIMPSON RESIDENCE?
I DON'T KNOW. I CAN'T ANSWER THAT QUESTION RIGHT NOW. I HAVE NOT EXAMINED THE PLUMBING. BUT THE MAIN PROBLEM FRANKLY WITH FALSE POSITIVES FOR A PHENOLPHTALEIN TEST, YOUR HONOR, ISN'T EVEN THE COPPER. IT'S MICROORGANISMS AND BACTERIA. AND THAT'S WHY -- I'VE CALLED OUT TO LEADING FORENSIC SCIENTISTS AROUND THE COUNTRY, AND THEY DON'T EVEN USE THE PHENOLPHTALEIN TEST FOR ANYTHING INVOLVING PLUMBING FIXTURES. THEY WOULD TAKE THE RESIDUE OR WHATEVER IT IS THAT THEY WANT TO TEST BACK TO THE LABORATORY AND DO CONFIRMATORY TESTING WHICH COULD ASSESS WHAT THE ITEM IS. THAT WASN'T EVEN DONE HERE. UNLIKE THE OTHER ITEMS THAT THEY WISH TO INTRODUCE, THERE WAS SOME CORROBORATIVE OR CONFIRMATORY TESTING DONE. BUT AS THE BLAKE ARTICLE POINTS OUT, MICROORGANISMS AND BACTERIA WHICH LIVE IN WET MOIST PLACES SUCH AS DRAINS ARE RENDERED THE USEFULNESS OF A PHENOL TEST UNDER THOSE CIRCUMSTANCES TO BE ABSOLUTELY USELESS. SO THAT'S WHAT GIVES RISE TO THE 352 ISSUE AS WELL, YOUR HONOR. THAT'S WHY WE'RE NOT -- WE'RE NOT OPPOSING, FOR INSTANCE, THE PHENOL RESULT AND THE PHOTOGRAPH DEPICTING IT OF THE STAIN ON THE FLOOR OF THE BATHROOM.
WHAT I'M HEARING FROM THE DEFENSE IS SOMEWHAT TROUBLING. WHAT THEY SAY IS, WELL, WE CAN PUT IN EVIDENCE OF THE NEGATIVES BECAUSE AS THE COURT WILL RECALL FROM MR. COCHRAN'S OPENING STATEMENT, HE MADE A BIG POINT ABOUT BLOOD NOT BEING LOCATED IN CERTAIN PLACES. SO THEY WANT TO CREATE THIS INFERENCE BUTTRESSED NOW BY SCIENTIFIC TESTIMONY THAT THEY'RE GRACIOUSLY NOT OBJECTING TO AS TO NEGATIVES IN A VARIETY OF PLACES WITHOUT ALSO SHOWING EVIDENCE OF POSITIVES IN OTHER LOGICAL PLACES THAT ONE MIGHT EXPECT TO FIND BLOOD IF A DEFENDANT WHO HAD JUST COMMITTED MURDERS HAD COME BACK TO HIS RESIDENCE, HAD GONE UPSTAIRS AND STRIPPED OFF HIS CLOTHES AND TAKEN A SHOWER. THAT IS THE HEIGHT OF GIVING THE JURY A COMPLETELY SKEWED AND ERRONEOUS VIEW OF THE EVIDENCE. THIS IS A LEGAL QUESTION FOR THE COURT TO DECIDE AND IT'S A VERY SIMPLE LEGAL QUESTION. AND THAT IS THE ADMISSIBILITY OF PRESUMPTIVE TESTS. BUT BEFORE I ADDRESS THE LAW ONCE MORE ON THAT ISSUE, WHICH WE BELIEVE IS CLEAR IN THE STATE OF CALIFORNIA, I JUST ASK THE COURT TO VIEW IT ALSO FROM A COMMON SENSE PERSPECTIVE BECAUSE WE KNOW THAT A PERSON CAN COME INTO COURT, A LAYPERSON AND TESTIFY THAT SOMETHING APPEARED TO BE BLOOD OR EVEN WAS BLOOD, THAT THAT'S AN APPROPRIATE LAY OPINION. WE CAN ASK MR. FUNG, WHO HAS SOME EXPERTISE, WHETHER SOMETHING APPEARED TO BE BLOOD, AND THAT KIND OF AN OPINION IS FAR LESS RELIABLE OBVIOUSLY THAN A FORENSIC TEST. WE ALSO KNOW IN OUR COURTS THAT A NARCOTICS OFFICER CAN COME IN AND TESTIFY THAT IN HIS OPINION, SOMETHING WAS IN FACT COCAINE FOR THE PURPOSES OF PROVING THAT IT WAS COCAINE EVEN WHERE THERE HAS BEEN NO CHEMICAL TESTING. IN FACT, THERE WAS A CASE, PEOPLE VERSUS SONLIGHTNER, THAT I WAS THINKING OF AS I WAS LISTENING TO COUNSEL SPEAK WHERE COCAINE WAS FLUSHED DOWN THE TOILET BEFORE THE NARCOTICS OFFICER COULD SEIZE IT, AND HE TESTIFIED THAT IN HIS OPINION, IT WAS COCAINE, AND THE COURT HELD THAT THAT WAS FINE, SOMEWHAT ANALOGOUS TO THE ISSUE WE'RE DOING HERE. SO WE DO ALLOW PEOPLE TO EXPRESS OPINIONS THAT ARE NOT BASED UPON SCIENTIFIC TESTS OR EVIDENCE THAT ARE FAR MORE SUBJECT TO DISPUTE THAN THE KIND OF SCIENTIFIC EVIDENCE THAT WE WANT TO PUT IN. YET THAT IS ALLOWED. AND THE AMBIGUITIES OF THOSE OPINIONS AND THE FALLIBILITY OF THOSE OPINIONS IS AN ISSUE OF WEIGHT FOR THE FACT FINDER. WE DON'T HAVE TO BE OVERLY CONCERNED IN OUR SYSTEM OF LAW OF TRYING TO SHIELD THE JURY FROM THIS KIND OF INFORMATION WHEN THEY'RE GOING TO HEAR BOTH SIDES. THEY'RE GOING TO HEAR WHAT KIND OF FALSE NEGATIVES YOU CAN HAVE. THEY'RE GOING TO HEAR UNDER WHAT CONDITIONS YOU CAN GET AN ERRONEOUS RESULT AND THEY'RE GOING TO HEAR THE KIND OF EXPERIENCE THAT DENNIS FUNG HAS HAD IN USING THESE TESTS AND THE PROBLEMS WITH THE TESTS, WHICH HE IS QUALIFIED TO SPEAK TO BECAUSE HE IS AWARE OF THE KINDS OF THINGS THAT CREATE FALSE POSITIVES AND HE HAS LOOKED AT SOME OF THE LITERATURE IN THIS REGARD. NOW TO ADDRESS THE CALIFORNIA LAW JUST VERY BRIEFLY ON THE ISSUE OF FORENSIC BLOOD TESTING OR PRESUMPTIVE BLOOD TESTING.
WE DO BELIEVE THAT COLEMAN IS DISPOSITIVE. AND ALL THEY ARE SAYING IS THAT YES, THESE DO COME IN, YES, THERE IS A HISTORY OF THEM COMING IN, BUT YOU HAVE TO HAVE EVIDENCE AS TO WHAT TESTS YOU'RE USING. BECAUSE -- IN THAT PARTICULAR CASE, IT WAS A POLICE OFFICER, NOT A CRIMINALIST, AND ALL THEY SAID IS THAT IT WAS A HEME STICK OR HEMO STICK AND NO ONE KNEW WHAT THAT WAS OR THE SUPREME COURT COULDN'T MAKE ANY DECISION AS TO WHAT THAT WAS. BUT WE KNOW VERY CLEARLY THAT PHENOLPHTALEIN IS ONE OF THE OLDEST TESTS. IT GOES BACK ALL THE WAY TO 1909. IT'S THE MOST SPECIFIC TEST ACCORDING TO THE LITERATURE. IT'S BASED UPON THE SAME PRINCIPAL AS THE REST OF THE PRESUMPTIVE TESTS INCLUDING THE ONES THAT THE DEFENDANT'S OWN EXPERTS USED. AND VERY CLEARLY UNDER CALIFORNIA PRECEDENT, IT SHOULD BE ADMITTED, AND ANY ISSUES AS TO THE AMBIGUITY GO TO THE WEIGHT OF THE EVIDENCE AND THAT'S A JURY ISSUE FOR THEM TO RESOLVE.
BUT DON'T I HAVE A 352 PROBLEM; THAT IF IT IS ONLY A PRESUMPTIVE TEST, IT HASN'T BEEN CONFIRMED AND THAT IT CAN BE TRIGGERED BY COMMONLY OCCURRING SUBSTANCES AS WELL. AND GIVEN THAT THIS IS LIKELY TO TURN OUT TO BE A CIRCUMSTANTIAL EVIDENCE CASE, I MEAN ISN'T THAT REALLY A WASTE OF TIME?
WELL, OBVIOUSLY WE ARE SPENDING MORE TIME LITIGATING THE ADMISSIBILITY THAN THE EVIDENCE WILL TAKE TO COME IN. THE KINDS OF THINGS THAT COULD CREATE A FALSE POSITIVE ARE VEGETABLE PEROXIDASE WHICH ARE FOUND IN A NUMBER OF VEGETABLES, COMMON VEGETABLES INCLUDING APPLE.
RIGHT. EXACTLY, UNLESS HE WAS MAYBE POURING APPLE JUICE DOWN THE DRAIN. THERE ARE ALSO A NUMBER OF OTHER CHEMICALS THAT ARE NOT COMMONLY HOUSEHOLD CHEMICALS, AND THIS WILL BE THE SUBJECT OF MR. FUNG'S TESTIMONY. BUT EVEN AS TO THE VEGETABLE PEROXIDASE, IT'S VERY CLEAR THAT WHILE IT IS THEORETICALLY POSSIBLE TO GET A FALSE POSITIVE, THAT A -- AN EXPERIENCED CRIMINALIST CAN DISTINGUISH BETWEEN A FALSE POSITIVE AND AN ACTUAL POSITIVE BECAUSE WHAT EVIDENTLY HAPPENS IS, IT DOES TURN PINK, THE SAME PINK COLOR THAT A TRUE POSITIVE WOULD, BUT IT'S MUCH SLOWER. AND THIS IS ALSO DOCUMENTED IN THE SCIENTIFIC LITERATURE.
KEY QUOTEI DON'T BELIEVE THAT -- AND I MAY BE MISTAKEN ABOUT THIS, BUT I'M NOT SURE THAT BLEACH WAS ONE OF THE ITEMS THAT COULD RESULT IN A FALSE POSITIVE.
THE ARTICLE THAT YOU SUBMITTED TO ME INDICATES THAT BLEACH IS ONE OF THE -- CHLORINE BLEACH IS ONE OF THE ITEMS THAT CAN CREATE A FALSE POSITIVE, WHICH IS NOT UNCOMMON IN BATHROOM FIXTURES.
KEY QUOTEYEAH. ACCORDING TO PROFESSOR IMWINKELRIED, HE DOES SAY THAT. OF COURSE, THIS ISN'T A SCIENTIFIC TEXT, BUT IT IS A LEGAL TEXT. AND AS I SAID, THERE ARE OTHER THINGS THAT DO CAUSE FALSE POSITIVES. BUT -- AND MAYBE PERHAPS WE COULD CLARIFY THIS POINT WITH MR. FUNG BECAUSE I DON'T KNOW IF I SPECIFICALLY ASKED HIM ABOUT BLEACH AS OPPOSED TO VEGETABLE PEROXIDASE. I DON'T RECALL HAVING DONE THAT. BUT I DO REMEMBER HIS EXPLANATIONS TO ME ABOUT THE VEGETABLE PEROXIDASE AND I CAN'T REPRESENT TO THE COURT THAT HIS EXPLANATION WOULD BE THE SAME WITH RESPECT TO BLEACH.
WELL, HOW DO WE COMPARE THE CASE LAW HERE IN COLEMAN WITH THE CASE LAW DEALING WITH LUMINAL?
OUT OF CURIOSITY, WHY WERE NOT -- I CAN'T FIND THE CASE AT THE MOMENT, BUT LET ME ASK YOU THIS.
WHY WERE NO FOLLOW-UP TESTS DONE ON THESE ITEMS?
WHAT ARE YOU GOING TO TEST TO FOLLOW UP? I MEAN IN ORDER TO COLLECT THE STAIN, THERE HAS TO BE SOMETHING THAT YOU CAN SEE ACCORDING TO MY UNDERSTANDING, AND THERE ARE CERTAIN INSTANCES WHERE THE ONLY EVIDENCE YOU'RE GOING TO HAVE IS THE PHENOLPHTALEIN TEST. ANOTHER INSTANCE WHERE WE HAVE THAT. FOR EXAMPLE, IS ON ITEM NO. 11, WHICH WAS THE WIRE.
ALL RIGHT. NOW, LET ME ASK YOU THIS. WOULDN'T THE BETTER PRACTICE HAVE BEEN TO TAKE THE TRAP OUT OF THE PLUMBING FIXTURE?
I THINK THAT HE -- THAT HE MAY HAVE TAKEN THE TRAP OUT ACCORDING TO WHAT WE SAW, AND I DON'T -- I DON'T -- I DON'T KNOW IF THAT WOULD BE THE BETTER PRACTICE. I WOULD HAVE TO --
THERE WAS -- I'M SORRY. THERE WAS A TEST ON THAT AND THE TRAP ITSELF WAS NEGATIVE. I MEAN SO THE ONLY -- THAT'S THE EVIDENCE THAT WE HAVE. I MEAN, WE LOOKED FOR EVIDENCE, AND THE ONLY EVIDENCE THAT WE HAVE WAS THE PHENOLPHTALEIN --
SO ISN'T IT POSSIBLE THAT IF BLOOD WAS BEING WASHED DOWN THE SINK, THAT IT WOULD -- MORE OF IT WOULD BE IN THE TRAP THAN ON THE RIM OF THE SINK?
KEY QUOTEI'M NOT A PLUMBING EXPERT, YOUR HONOR, SO I CAN'T ANSWER THAT ONE. I WAS INFORMED BY SOMEONE WHO APPARENTLY KNOWS MORE PLUMBING THAN I THAT YOU DON'T MAKE DRAIN PIPES OUT OF COPPER. I DON'T KNOW THAT TO BE TRUE, BUT THAT'S WHAT SOMEONE TOLD ME. GETTING BACK TO THE LUMINAL QUESTION THAT THE COURT ASKED, I'M NOT FAMILIAR WITH THE CALIFORNIA CASES THE COURT HAS CITED. I'M FAMILIAR WITH SOME OUT-OF-STATE CASES THAT DEAL WITH THAT.
LUMINAL ISN'T THE SPECIFIC -- IS NEARLY AS SPECIFIC AS PHENOLPHTALEIN, AND THERE IS LITERATURE TO DOCUMENT THAT FACT.
AND THE POINT THAT I WAS TRYING TO MAKE YESTERDAY WHEN I WAS TALKING ABOUT THE TWO-STAGE PROCESS IS THAT YOU DID NOT ALWAYS HAVE TWO STAGES ON THE PHENOLPHTALEIN TEST. WHEN IT WAS FIRST INVENTED IN 1909, I BELIEVE THAT THEY JUST APPLIED THE PHENOLPHTALEIN SOLUTION IF I'M NOT MISTAKEN. THEY NOW ADD THE HYDROGEN PEROXIDE, AND EVIDENTLY THAT IS SUPPOSED TO DEAL WITH AND NEGATE SOME OF THE PROBLEMS THAT YOU'D OTHERWISE HAVE WITH THE VEGETABLE PEROXIDASE.
A NEGATIVE RESULT IS OF THE COMPLETELY DIFFERENT NATURE. IT IS A CONCLUSIVE TEST. IT MEANS THAT THERE COULDN'T POSSIBLY BE BLOOD THERE. SO TO LUMP THE ADMISSIBILITY OF NEGATIVE RESULTS WITH POSITIVE RESULTS FOR THE PHENOLPHTALEIN TEST REALLY RAISES A COMPLETELY DIFFERENT ISSUE.
WHAT THEY SAY IS, WELL, WE CAN PUT IN EVIDENCE OF THE NEGATIVES... WITHOUT ALSO SHOWING EVIDENCE OF POSITIVES IN OTHER LOGICAL PLACES... THAT IS THE HEIGHT OF GIVING THE JURY A COMPLETELY SKEWED AND ERRONEOUS VIEW OF THE EVIDENCE.
THE ARTICLE THAT YOU SUBMITTED TO ME INDICATES THAT BLEACH IS ONE OF THE ITEMS THAT CAN CREATE A FALSE POSITIVE, WHICH IS NOT UNCOMMON IN BATHROOM FIXTURES.
UNLESS HE WAS MAYBE POURING APPLE JUICE DOWN THE DRAIN.
ISN'T IT POSSIBLE THAT IF BLOOD WAS BEING WASHED DOWN THE SINK, THAT IT WOULD -- MORE OF IT WOULD BE IN THE TRAP THAN ON THE RIM OF THE SINK?