Sidebar: RFLP testing evidence

📄 Sidebar: RFLP testing evidence — Friday, August 4, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\4\SIDEBAR-RFLP-TESTING-EVIDENCE.DOC

TRIAL

▲ Day 129 of 167

◀ Cross-examination of Dr. John Gerdes (part 1) Cross-examination of Dr. John Gerdes (part 2) ▶

Date: Friday, August 4, 1995 • Utterances: 19

Defense attorney Barry Scheck objected at the sidebar to a chart being used with the current witness that contained a final box referencing ongoing RFLP testing. Scheck argued that any questioning about those test results was a legal issue not yet resolved and should not be addressed through this witness. Judge Ito sided with Scheck, ordering no questioning on that topic until the parties had a chance to argue the issue formally.

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

# 2 THE COURT:

All right. We are over at the side bar.

# 3 MR. SCHECK:

Something I didn't notice about this chart yesterday, and that is, is that the last box says "RFLP testing going on today." I know that, but through Dr. Blake, of course, and we have discussed this issue. There are no notes of this witness because there is no written documentation of that, and I would ask that no questions be asked with respect to that since that is a legal issue to be resolve in the future.

# 4 THE COURT:

You don't intend on going into that, do you?

# 5 MR. CLARKE:

Well, I think it is appropriate to ask a hypothetical about would those reports be significant as far as his allegations about the potential of cross-contamination.

KEY QUOTE

# 6 MR. SCHECK:

No.

# 7 MR. CLARKE:

I think it is extremely important.

# 8 MR. SCHECK:

I would object to that. I think that is an issue that that is to be resolved as to whether or not that can come into evidence on rebuttal. I don't think this is the time or place. That was something that was--I think the Court had indicated and the parties had agreed that that was going to be addressed at another time.

# 9 THE COURT:

Yes.

# 10 MR. CLARKE:

Well, then we need to resolve it I think. That is an important area for purposes of this witness.

# 11 MR. SCHECK:

When it comes time that you try to offer anything on that and I get report on that and the Court makes a decision whether that is proper rebuttal, that is one thing, but I think it is unfair to do it in this fashion.

# 12 MR. CLARKE:

There was no objection to this chart.

# 13 MR. SCHECK:

I didn't see that last box. I am raising it right now. It was quick.

KEY QUOTE

# 14 MR. CLARKE:

I think--

# 15 MR. SCHECK:

In deference to certain things that were going on yesterday, I wanted to make that as quick as possible. My error in not looking at that, I agree, but this is a timely objection in terms of him being able to go into it.

# 16 MR. CLARKE:

We are prepared to argue that and I think it is very important, and if at the break it is appropriate, that is fine.

# 17 THE COURT:

All right. No questioning until we've had argument on that.

KEY QUOTE

# 18 MR. CLARKE:

Would the Court like me to proceed and stop before that box?

# 19 THE COURT:

Yes. Let's do that.

Temperature

tense

Key Quotes (3)

Barry Scheck

I didn't see that last box. I am raising it right now. It was quick.

Scheck acknowledges missing the chart detail but argues the objection is still timely — a candid admission of oversight while pressing the procedural point.

George Clarke

I think it is appropriate to ask a hypothetical about would those reports be significant as far as his allegations about the potential of cross-contamination.

Clarke reveals the prosecution's strategic intent — using RFLP results to rebut the defense's cross-contamination theory.

Lance A. Ito

All right. No questioning until we've had argument on that.

Ito's ruling effectively sustains the objection and defers the RFLP rebuttal issue to a later hearing.

Evidence (2)

Informal

A chart displayed to the witness containing a final box labeled 'RFLP testing going on today'

challenged — Scheck objects to any questioning referencing that box

Informal

RFLP testing results (ongoing at time of trial)

discussed — Clarke argues results are relevant to rebutting cross-contamination allegations; Scheck argues the issue is unresolved and cannot be raised here

Notable Exchanges (2)

Barry Scheck•George Clarke

Clarke presses to ask a hypothetical using the RFLP results to counter the defense's cross-contamination theory; Scheck objects that this is a matter to be resolved at a separate hearing, not through this witness mid-examination.

strategic

George Clarke•Lance A. Ito

Clarke asks whether he should simply proceed and stop before the disputed box on the chart; Ito agrees, finding a practical workaround that lets testimony continue without resolving the larger legal issue.

procedural

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 7179 • 19 utterances

Criminal Trial

Department 103