I'm thinking I can avoid the letter, and the way I think I can avoid the letter is, instead of having him list the 26 people in the letter, he's only going to list the--I think the other six or seven people who he said are people in his field that he is personally familiar with their views. So I won't have to actually introduce the letter. I can avoid the letter that way. The list of names that he has there is simply the list of names on the letter.
Well, he's got what appears to me to be about a half-inch worth of notes there sitting in front of him.
No. What he has sitting in front of him is Bruce Weir's report and what he has sitting in front of--Bruce Weir's report and the letter to nature, and that's it.
The list of names is actually written on the back of one of the pages of the letter to nature, and all it is is a list of names that's printed on the letter to nature, and he's simply, before he came in here today, circled those people who he had personal contact or he's personally familiar with their conclusions as opposed to relying on the letter itself.
All right. You realize by opening this up that you're giving the Prosecution the opportunity to cross-examine on all the works of those other people. They're going to ask for a two-week continuance for the opportunity to cross-examine on what I consider to be a relatively silly point, whether or not one should consider error rates in doing these kind of collections. That's the whole point, right?
KEY QUOTEDo you understand my concern, Mr. Neufeld, that you can open this up wider than you want to?
Let me see if I understand the law in California on this point. I thought that the law is that if he wants to, he could call these individual scientists if he wanted to as part of his case and ask them whether or not they in fact expressed the opinions that this witness says he's relying on. I think that is fair and they are entitled to do. But if I don't introduce the letter and I don't introduce any of the other people, isn't that the full extent of what they can do once I mention those names?
I think the fundamental question under 801 is, do we just let him come in and give a list of people he's familiar with and then force me to call eight people? I think under 801, we're entitled to argue whether or not--whether you think as a foundational matter this is kind of gossip recently relied on by experts in this field and not force me to have that before the jury.
Some of them, he's relying--first of all, I object to the notion it's gossip. Some of them, he's relying on their printed work. In other instances, he's relying on telephone conversations he's had with some of them or in-person discussions he had with them. It's going to be limited to those people that he has that kind of familiarity with, and I'm not going to read a list of other people as Mr. Harmon pointed out earlier that--whose names he didn't really recognize. That's how I thought I would avoid the letter itself. Now--
So the question is, if I just do that, does that open the door to some two-week continuance?
Well, here's the problem. For starters, it has to be something that a reasonable scientist will rely upon and interpret as in the--and given the nature of this field, published works. Okay. And now, let's assume this is too published works. Then Mr. Harmon has to have the opportunity to locate those published works and to evaluate them and to use them to cross-examine this guy. That's what you're about to open up. Telephone conversations with people about this particular issue doesn't cut it as far as a basis for forming scientific--
I would respectfully disagree and I would ask the Court to consider the fact that very often in the scientific community--
Now we are talking about computation of laboratory error rate into the calculations of frequency. That's all we are talking about here, which you've established; have you not? These jurors have not taken a note for half an hour. Have you noticed that? They've gotten the point.
May I? Is it the Court's ruling that it doesn't consider personal conversations or nonpublished reports to be an adequate basis under rule 801(B)?
I'd like to put something on the record about Mr. Neufeld's representations about those slides because although I don't want to waste the jurors' time, I think it's very critical--
You may want to consider these--by the way, these were actually--they were on the board and some of them, not all of them were used at this point. These two were marked at that point.
These jurors have not taken a note for half an hour. Have you noticed that? They've gotten the point.
Telephone conversations with people about this particular issue doesn't cut it as far as a basis for forming scientific--
You realize by opening this up that you're giving the Prosecution the opportunity to cross-examine on all the works of those other people. They're going to ask for a two-week continuance.
If I go forward at this point, it hasn't opened any doors.