Sidebar: NRC report admissibility

📄 Sidebar: NRC report admissibility — Thursday, August 3, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\3\SIDEBAR-NRC-REPORT-ADMISSIBILI.DOC

TRIAL

▲ Day 128 of 167

◀ Direct examination of Dr. John Gerdes (morning, part 2) Direct examination of Dr. John Gerdes (morning, part 3) ▶

Date: Thursday, August 3, 1995 • Utterances: 26

Defense attorney Barry Scheck sought to use passages from an NRC (National Research Council) report on DNA error rates as authoritative text during examination, similar to how the prosecution had used recognized texts. Prosecutor George Clarke objected that the passages were argumentative hearsay directed at judges and juries rather than scientists. Judge Ito overruled the objection but required Scheck to remove the entire sentence referencing 'judges and juries' rather than just the clause.

# 1 (The following proceedings were held at the bench:)

# 2 MR. SCHECK:

Actually maybe I can make a suggestion that would obviate some problems, because I had some concerns about at the end of the second paragraph--at the end of the second paragraph--

# 3 THE COURT:

The one that I have highlighted?

# 4 MR. SCHECK:

It says: "Nevertheless, a higher error rate should be a matter of concern," and the next thing it says, "To judges and juries." I would propose to just read "A matter of concern" and get rid of the "Judges and juries" because I think that is arguably a legal conclusion.

# 5 THE COURT:

That is a legal conclusion.

# 6 MR. SCHECK:

That--

# 7 MR. CLARKE:

I'm confused. I thought we were, first of all, talking about paragraphs 2 and 3.

# 8 MR. SCHECK:

Starting "Laboratory errors happen," but I want to eliminate the "To judges and juries" because I think that may invade the province as more of a policy statement and the other I think is more restricted as a scientific statement.

# 9 MR. CLARKE:

Both these paragraphs are very argumentative and they are seeking really to invade the province of the jury in this case period.

KEY QUOTE

# 10 MR. SCHECK:

I would submit that these are--

# 11 THE COURT:

Is there a particular reason he can't say this just as his own personal opinion?

# 12 MR. SCHECK:

Well, I think the whole point of it is just as in terms of the way Mr. Kelberg, I thought quite adroitly, used quotes from various recognized and authoritative texts, I truly anticipate that Mr. Clarke is going to go on at some length that he is not a forensic scientist and that the conclusions that he reaches that are consistent--these opinions--

# 13 THE COURT:

Uh-huh.

# 14 MR. SCHECK:

--can't be trusted because--

# 15 THE COURT:

Well, I don't think he disputes anything that is in these two--

# 16 MR. SCHECK:

I think there will be disputes.

# 17 MR. CLARKE:

I think the paragraphs are very argumentative and they really are directed toward judges and juries, as opposed to scientists.

# 18 MR. SCHECK:

I don't think that is the case at all. When he talks about error rates and the need for regular proficiency testing, that is--that is the issue, and the other issue has to do with error rates and the kind of samples that are used.

# 19 THE COURT:

All right.

# 20 MR. SCHECK:

So those are two things. I just want to eliminate this one because I think it--

# 21 THE COURT:

I will overrule the objection and I will allow you to use it, but I want you to take out the entire sentence, not just the clause.

KEY QUOTE

# 22 MR. SCHECK:

All right.

# 23 MR. CLARKE:

May I make one comment?

# 24 THE COURT:

Yes.

# 25 MR. CLARKE:

That is exactly the type of hearsay in these instances with these three photographs that we talk about inadmissible hearsay, clearly the opinions of these authors, and they are made in an argumentative social science context, as opposed to a scientific context.

KEY QUOTE

# 26 THE COURT:

All right. It is overruled.

Temperature

procedural

Key Quotes (4)

Barry Scheck

I would propose to just read 'A matter of concern' and get rid of the 'Judges and juries' because I think that is arguably a legal conclusion.

Scheck proactively offers a compromise, trimming the NRC passage to avoid the most objectionable language — showing tactical flexibility.

George Clarke

Both these paragraphs are very argumentative and they are seeking really to invade the province of the jury in this case period.

Clarke's core objection: the NRC report passages are advocacy directed at factfinders, not neutral scientific findings.

George Clarke

That is exactly the type of hearsay in these instances with these three photographs that we talk about inadmissible hearsay, clearly the opinions of these authors, and they are made in an argumentative social science context, as opposed to a scientific context.

Clarke attempts to reframe the NRC report as social science opinion rather than hard science, undercutting its authority.

Lance A. Ito

I will overrule the objection and I will allow you to use it, but I want you to take out the entire sentence, not just the clause.

Ito's ruling: the NRC passages come in, but with a broader cut than Scheck proposed — splitting the difference.

Evidence (1)

Informal

NRC (National Research Council) report passages discussing laboratory error rates and proficiency testing, specifically paragraphs 2 and 3 starting with 'Laboratory errors happen'

admissibility argued; allowed with one sentence removed

Notable Exchanges (2)

Barry Scheck•George Clarke

Scheck argues the NRC passages are scientific statements about error rates and proficiency testing; Clarke counters they are argumentative social science opinion aimed at judges and juries rather than scientists.

strategic

Barry Scheck•Lance A. Ito

Scheck references Kelberg's use of authoritative texts as precedent for using the NRC report, anticipating Clarke will attack the defense DNA expert's credentials on cross.

strategic

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 7940 • 26 utterances

Criminal Trial

Department 103