📄 Sidebar: phenolphthalein test — Tuesday, August 1, 1995
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C:\DEPT103\CRIMINAL\1995\AUG\1\SIDEBAR-PHENOLPHTHALEIN-TEST.DOC
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▲ Day 126 of 167

Sidebar: phenolphthalein test

Date: Tuesday, August 1, 1995 • Utterances: 30
During cross-examination of a defense witness (Matheson), Neufeld sought to introduce testimony about phenolphthalein presumptive blood testing on the socks, arguing Clark had opened the door by questioning whether the 'red balls' were blood. Judge Ito sustained the objection, ruling the court's prior exclusion of phenolphthalein evidence still stands. Clark also complained that the witness was deliberately injecting excluded matters into his answers.
1 MR. NEUFELD:

Thank you.

2 (The following proceedings were held at the bench:)
3 THE COURT:

All right.

4 MS. CLARK:

I want one, too.

5 THE COURT:

We are over at the side bar. You guys both ask entirely too many questions. All right.

6 MR. COCHRAN:

Sorry, Judge.

7 MR. NEUFELD:

I have only asked one question about travel so far.

8 THE COURT:

Do you think the jury is really interested in that?

9 MR. COCHRAN:

Judge, only one lawyer.

10 MS. CLARK:

Yeah.

11 MR. NEUFELD:

Your Honor, I believe yesterday through Miss Clark's questioning she opened the door for me to bring out the fact that they did do presumptive testing on the sock for two reasons: Okay. No. 1, she brought out the fact that he both examined the socks microscopically and then certain chemical tests were done, and the suggestion was that Mr. Matheson was outside the room. So I'm going to have to describe what those chemical tests were.

More importantly, late in the day during her cross-examination she asked, "Well, you didn't do any typing on those red balls," suggesting in fact that that we confirmed that is blood other than the visual inspection. I would call the Court's attention to the manner of the drains in Mr. Simpson's house where the People were precluded from bringing out that they did presumptive testing on the drain. The Court ruled at that time that if we made any suggestion that it wasn't blood in the drainpipes, okay, that that would then open the door to bring out the presumptive tests. Miss Clark's question about the failure to do typing tests on those red balls I believe is the same thing. In fact, she said in the very next question, "Well, let's even assume for the moment that they are blood balls." I think she caught herself and realized what she had just done. But I think that for both those reasons, your Honor, I am entitled to ask this witness about the presumptive tests part because, as I said, there is already testimony about the chemical tests that they did on April 2nd and the second reason being for a suggestion that we haven't done anything to indicate the proof of those red balls are blood.

12 MS. CLARK:

No, your Honor. That--the--counsel is now trying to use his witness' own nonresponsive answer. I never intended to elicit from him that he performed such a test. He volunteered that in an effort, as he has frequently done, to interject into the record matters that he knows he is not allowed to get into which he knows I'm not asking for. But counsel really has all that he wants in my requesting of him whether or not it was typed, because the issue of that was not to dispute that was blood, and I've pretty much--although there have been times that I said, well, we assume it is blood--I have pretty much conceded that--certainly not fought the assertion that it might be. All I was saying was we don't know whose it is, if it is blood. That is not fighting the assertion that it is blood. That is--counsel is using the camel's nose argument, but it is his nose that is in the tent and not mine.

13 THE COURT:

All right. Can you show me the question and answer you are referring to?

14 MR. NEUFELD:

I don't have the transcript. It is based on my recollection.

15 MS. CLARK:

I don't see how that would possibly let it in, your Honor. All I'm saying, it is blood; you don't know whose it is.

16 MR. COCHRAN:

I will ask Blasier.

17 THE COURT:

At this point I'm going to sustain the objection. The Court's previous ruling regarding phenolphtalein will stand. Ask Blasier to--

KEY QUOTE
18 (Brief pause.)
19 MS. CLARK:

Your Honor, there was a second issue that I wanted to raise while we are here so we don't waste time.

20 THE COURT:

All right.

21 MS. CLARK:

I don't want to jump back up here.

22 THE COURT:

What is the second issue?

23 MS. CLARK:

The second issue is that the witness attempted to get in the sock drying experiment. He knew what I was asking him, deliberately interjected a matter that was totally irrelevant to my question. My question had nothing to do with the phenolphthalein test or the application of distilled water. He knew it very well.

24 THE COURT:

And we stopped it real quick.

25 MR. NEUFELD:

It also wasn't the sock drying experiment he was referring to.

26 THE COURT:

Let's proceed.

27 MS. CLARK:

If counsel intends to use that answer to open up the door that has been closed by the Court--

28 MR. NEUFELD:

I'm not going to.

29 THE COURT:

All right.

30 (The following proceedings were held in open court:)

Temperature

tense

Key Quotes (4)

Peter Neufeld
she asked, 'Well, you didn't do any typing on those red balls,' suggesting in fact that that we confirmed that is blood other than the visual inspection
Neufeld's core argument that Clark's own question opened the door to phenolphthalein testimony by casting doubt on whether the red balls were blood
Marcia Clark
counsel is now trying to use his witness' own nonresponsive answer. I never intended to elicit from him that he performed such a test. He volunteered that in an effort, as he has frequently done, to interject into the record matters that he knows he is not allowed to get into
Clark accuses Matheson of deliberately volunteering excluded evidence, a recurring pattern she identifies
Marcia Clark
That is not fighting the assertion that it is blood. That is--counsel is using the camel's nose argument, but it is his nose that is in the tent and not mine.
Sharp rhetorical rebuttal turning Neufeld's 'opening the door' argument back on him
Lance A. Ito
At this point I'm going to sustain the objection. The Court's previous ruling regarding phenolphtalein will stand.
Final ruling — phenolphthalein testing evidence remains excluded

Evidence (2)

Informal
OJ Simpson's socks — specifically 'red balls' on the socks and whether presumptive blood testing was performed
discussed, admissibility of testing results contested
Informal
Drainpipes from Simpson's house — cited by Neufeld as prior precedent where court ruled presumptive testing admissible if defense cast doubt on substance being blood
referenced as analogous ruling

Notable Exchanges (2)

Peter NeufeldMarcia ClarkLance A. Ito
Neufeld argues Clark opened the door to phenolphthalein evidence by implying the red balls on the socks weren't confirmed as blood; Clark counters the witness volunteered excluded information nonresponsively and that her questioning conceded it was blood while disputing whose it was; Ito sustains the objection.
strategic
Marcia ClarkLance A. Ito
Clark raises a second complaint that the witness deliberately injected the sock drying experiment into a non-responsive answer; Ito notes they shut it down quickly and directs proceedings to continue.
procedural

Credibility Attacks (1)

⚔ Matheson
bias / deliberate nonresponsiveness
Clark accuses Matheson of repeatedly and knowingly injecting excluded matters into his answers to get them before the jury, characterizing it as a pattern of deliberate misconduct

Objections

1 objections (1 sustained, 0 overruled)
Proceeding 7110 • 30 utterances
Criminal Trial
Department 103
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