📄 Sidebar: marking evidence — Tuesday, April 4, 1995
Address:
C:\DEPT103\CRIMINAL\1995\APR\4\SIDEBAR-MARKING-EVIDENCE.DOC
TRIAL
▲ Day 51 of 167

Sidebar: marking evidence

Date: Tuesday, April 4, 1995 • Utterances: 10
At a bench sidebar, Barry Scheck sought to use original notes (previously submitted to a questioned document examiner) to impeach a witness by showing the originals contain no notations identifying who collected evidence. Goldberg objected, arguing the prosecution might need to conduct their own analysis of the originals and that SID needed to preserve their complete set. Judge Ito ruled that Scheck could use the originals for impeachment, but only a photocopy would be admitted into evidence.
1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)
2 THE COURT:

ALL RIGHT. WE'RE OVER AT THE SIDEBAR. MR. GOLDBERG.

3 MR. GOLDBERG:

YOUR HONOR, THESE ARE THE ORIGINALS OF THE NOTES THAT COUNSEL HAD SUBMITTED TO A QUESTIONED DOCUMENT EXAMINER AND THIS WAS FOR SOME SORT OF ANALYSIS ON -- I THINK MAYBE IT WAS A TRACE ANALYSIS. I DON'T KNOW EXACTLY WHAT IT WAS AND WHAT THE PURPOSE OF DOING IT WAS. BUT IF IN FACT THEY ARE GOING TO OFFER THAT INTO EVIDENCE, THEN THE PROSECUTION MIGHT NEED TO ACTUALLY LOOK AT THESE ITEMS AND DO THE SAME KIND OF ANALYSIS. SO AT THIS POINT, I DON'T SEE ANY REASON TO INTRODUCE THE ORIGINAL AS OPPOSED TO A XEROX COPY.

4 MR. SCHECK:

WELL, I THINK THAT JUST AS WE'VE DONE ALREADY, IF THE PROSECUTION WANTS TO ANALYZE THAT, THEY CAN GET AN ORDER FROM THE COURT, THE DOCUMENT CAN BE TAKEN FROM THE COURT AND GIVEN TO THEIR DOCUMENT EXAMINER. MR. GOLDMAN WENT OVER THESE DOCUMENTS IN GREAT DETAIL WHEN I DID OR WHAT WAS EXAMINED WHEN IT WAS EXAMINED.

5 MR. GOLDBERG:

WELL, WE'VE ALSO BEEN TOLD BY THE SCIENTIFIC INVESTIGATION EVIDENCE PEOPLE THEY WANT TO KEEP A COMPLETE SET OF THEIR DOCUMENTS. IF WE START TAKING IT APART AND INTRODUCING TWO PAGES THERE AND THREE PAGES THERE, THEN OUR ONLY SET OF THE ORIGINALS IS GONE.

KEY QUOTE
6 THE COURT:

WHY DO WE NEED TO USE THE ORIGINAL FOR THIS PURPOSE?

7 MR. SCHECK:

WELL, THIS PARTICULAR PURPOSE -- MY ONLY PURPOSE IN SHOWING THIS DOCUMENT AT THIS TIME TO THE WITNESS IS THAT -- IS TO IMPEACH HIM WITH THE FACT THAT THE ORIGINAL DOES NOT HAVE ANY NOTATIONS AS TO WHO COLLECTED THE EVIDENCE AND HE HAS NOW RECONSTRUCTED ANOTHER SET OF NOTES FROM SOME -- IN SOME FASHION THAT I'M GOING TO EXPLORE.

8 THE COURT:

I'LL ALLOW YOU TO USE THE ORIGINAL FOR THIS PURPOSE, BUT WHAT WILL GO INTO EVIDENCE WILL BE A PHOTOCOPY OF THAT.

KEY QUOTE
9 MR. SCHECK:

CAN I MAKE THIS REQUEST OF THE COURT THEN? I WOULD -- I HAVE NO PROBLEM WHATSOEVER WITH THE ENTIRE VOLUME OF ORIGINAL EXHIBITS BEING HELD BY THE COURT SO THAT NOBODY CAN GET TO IT IF THAT'S THEIR PROBLEM OR FEAR, AND IF THEY WANT TO DO ANY SUBSEQUENT DOCUMENT EXAMINING, TESTING, THEY CAN.

10 THE COURT:

NO. BUT I THINK THE PUBLIC ENTITY IS ENTITLED TO KEEP THEIR ORIGINAL DOCUMENT IF A PHOTOCOPY WILL SUFFICE FOR THIS PURPOSE. FOR THE PURPOSE YOU TOLD ME, A PHOTOCOPY WILL SUFFICE. ALL RIGHT. LET'S GO.

Temperature

procedural

Key Quotes (3)

Barry Scheck
MY ONLY PURPOSE IN SHOWING THIS DOCUMENT AT THIS TIME TO THE WITNESS IS THAT -- IS TO IMPEACH HIM WITH THE FACT THAT THE ORIGINAL DOES NOT HAVE ANY NOTATIONS AS TO WHO COLLECTED THE EVIDENCE AND HE HAS NOW RECONSTRUCTED ANOTHER SET OF NOTES FROM SOME -- IN SOME FASHION THAT I'M GOING TO EXPLORE.
Reveals the impeachment theory: the witness fabricated or reconstructed notes after the fact, and the original document exposes the absence of chain-of-custody notations.
Lance A. Ito
I'LL ALLOW YOU TO USE THE ORIGINAL FOR THIS PURPOSE, BUT WHAT WILL GO INTO EVIDENCE WILL BE A PHOTOCOPY OF THAT.
The ruling — a clean compromise allowing impeachment use while protecting the original document.
Hank Goldberg
WE'VE ALSO BEEN TOLD BY THE SCIENTIFIC INVESTIGATION EVIDENCE PEOPLE THEY WANT TO KEEP A COMPLETE SET OF THEIR DOCUMENTS. IF WE START TAKING IT APART AND INTRODUCING TWO PAGES THERE AND THREE PAGES THERE, THEN OUR ONLY SET OF THE ORIGINALS IS GONE.
Prosecution's practical concern: piecemeal introduction of originals would destroy SID's complete evidentiary record.

Evidence (1)

Informal
Original handwritten notes from an LAPD/SID officer, previously submitted to a questioned document examiner for trace analysis; the originals allegedly lack any notations identifying who collected the evidence.
Disputed — Scheck seeks to use originals for impeachment; Ito rules photocopy enters evidence while originals stay with SID.

Notable Exchanges (1)

Barry ScheckHank Goldberg
Scheck proposed the court hold the entire volume of originals to address Goldberg's preservation concerns; Ito declined, ruling the public entity is entitled to keep originals when a photocopy suffices.
strategic

Credibility Attacks (1)

⚔ LAPD/SID evidence collector (unnamed, on stand)
prior inconsistent statement / fabricated records
Scheck intends to impeach the witness by showing the original notes have no notations identifying who collected the evidence, while the witness has produced a 'reconstructed' set of notes — implying the reconstruction was made after the fact.

Objections

None recorded
Proceeding 5581 • 10 utterances
Criminal Trial
Department 103
⚖️ Start
📂 APR 4, 1995 📄 Sidebar: marking evidence
APR 4, 1995 KRT DvH TD