Sidebar: expert capability

📄 Sidebar: expert capability — Tuesday, July 25, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\25\SIDEBAR-EXPERT-CAPABILITY.DOC

TRIAL

▲ Day 121 of 167

◀ Cross-examination of Roger Martz (part 1) Cross-examination of Roger Martz (part 2) ▶

Date: Tuesday, July 25, 1995 • Utterances: 7

Defense attorney Blasier objected at sidebar to the prosecution questioning an expert witness about whether he was capable of performing certain EDTA-related tests. Clark argued that because the defense called the witness and questioned him about tests he failed to conduct, the jury was entitled to know the witness could have performed those tests himself. Ito split the ruling: sustaining the objection as to Dr. Ballard, but overruling it as to Dr. Rieders.

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

# 2 THE COURT:

All right. We're over at sidebar.

# 3 MR. BLASIER:

It's not our burden of proof to demonstrate whether or not he did experiments. He can make comment on what tests he did or didn't do. That's completely inappropriate. He can certainly testify as to whether he thinks those kinds of tests are necessary or not, but not with respect to whether he could or couldn't do them.

KEY QUOTE

# 4 MS. CLARK:

He's the proponent of the evidence, your Honor. He's questioned the witness about whether or not he conducted certain tests and experiments to determine what the behavior of EDTA would be under those conditions. He's capable of performing such tests and the jury should be aware of the fact that in questioning the witness--

KEY QUOTE

# 5 THE COURT:

Keep your voice down.

# 6 MS. CLARK:

--about the failure to conduct such tests, that he's capable of doing them as well. And I think it's a fair comment given the line of questioning that they have proposed to this witness whom they called.

# 7 THE COURT:

All right. I'll sustain the objection as to any further questioning along this line as to Dr. Ballard. I'll overrule it as to Dr. Rieders.

KEY QUOTE

Temperature

procedural

Key Quotes (3)

Robert Blasier

It's not our burden of proof to demonstrate whether or not he did experiments. He can make comment on what tests he did or didn't do. That's completely inappropriate.

Blasier argues capability questions improperly shift the burden — the defense need not prove what experiments could have been done, only what were done.

Marcia Clark

He's the proponent of the evidence, your Honor. He's questioned the witness about whether or not he conducted certain tests and experiments to determine what the behavior of EDTA would be under those conditions.

Clark's rebuttal frames the capability question as fair game given that defense opened the door by attacking the prosecution witness's testing methodology.

Lance A. Ito

I'll sustain the objection as to any further questioning along this line as to Dr. Ballard. I'll overrule it as to Dr. Rieders.

The split ruling suggests Ito saw a meaningful distinction between the two experts' roles or relationships to the challenged testing.

Evidence (1)

Informal

EDTA behavioral tests — experiments that were or were not conducted to determine how EDTA behaves under specific conditions

discussed as the subject of the disputed line of questioning

Notable Exchanges (1)

Robert Blasier•Marcia Clark•Lance A. Ito

Blasier objects to capability questioning; Clark argues defense opened the door by attacking the witness's failure to test; Ito partially sustains and partially overrules, drawing a line between the two named experts.

strategic

Credibility Attacks (1)

⚔ Expert witness (Dr. Ballard / Dr. Rieders context)

capability impeachment — implying failure to conduct available tests undermines conclusions

Clark sought to establish that the defense's own expert could have performed the EDTA tests he criticized, casting doubt on the completeness or good faith of the expert's analysis.

Objections

1 objections (1 sustained, 1 overruled)

Proceeding 7025 • 7 utterances

Criminal Trial

Department 103