I think we can handle this quite briefly, your Honor. The Defense trial brief dated July 20th with respect to the admissibility of the former testimony of Thano Peratis addressed the question of both the testimony before the preliminary hearing, of which we have a video of his testimony, and the testimony before the grand jury. The authority to use the grand jury testimony comes directly from section 1291(A)1 of the evidence code. The former testimony exception really creates two exceptions. One, the former testimony is offered against the person who offered it in his own behalf at the prior proceeding or, subsection 2, the party against whom the testimony is offered had the opportunity to cross-examine at the former proceeding. The first exception does not require that you even have an opportunity to cross-examine because it is based on the theory that your presentation of the testimony as direct testimony is a substitute for your opportunity to cross-examine. And we cited the Salas case, which is really the leading case interpreting section 1291. It's an opinion by Justice Bernard Jefferson who was the offer of the bench book on evidence.
And in Salas, he was presented with a rather unique situation where the Prosecution was offering preliminary hearing testimony that had been offered by the Defense at the preliminary hearing. And he noted in the Salas opinion that under subdivision (A)1, a party's previous direct and redirect examination called by him on the prior occasion is justifiably considered to constitute an adequate substitute for such party's present right to cross-examine the declarant. So we didn't call the witness at the grand jury. The Prosecution did. So their presentation of his testimony before the grand jury is direct testimony, then justifies use of the 1291(A)1 exception to now offer that testimony against it.
Well, in the Salas case, your Honor, as I recall, I think the Defense called the witness as their own at the preliminary hearing and the Prosecutor then wanted to use the transcript at trial, and they held that it could. So it's slightly distinguishable, although I don't necessarily disagree with counsel's interpretation of the overall importance of the case or the evidence code per se, although we haven't found any cases that specifically say that grand jury hearings are admissible. Usually we've seen depositions introduced in cases where the declarant is unavailable or preliminary hearings. So while I'm not conceding the issue only because we don't have any dispositive case law, it doesn't appear that counsel's interpretation of the law that we do have is fundamentally unreasonable. What I would like to draw the Court's attention to, however, on the issue of the admissibility of the transcript testimony is that previously, the People filed a brief discussing if Thano Peratis were to be called at the time that we thought he might be called as a witness, the extent to which his statements concerning the amount of blood in the blood vial would be admissible. As the Court will recall, when Greg Matheson was testifying on the same subject, to try and estimate the amount of blood on the blood vial or that would have been consumed during various transactions, the Court required the People to lay an extremely thorough foundation as to how those figures were arrived at. And in fact, he never really was allowed to testify as to approximately what quantities would have been used during certain transactions. The People could only get that testimony in by having him repeat those transactions during the evening and then the morning following--repeating those transactions, testifying to the actual amount of blood that was used as opposed to an estimation of the amount. So the Court has in essence heard that even an expert witness cannot offer estimations as to small quantities of blood that were involved in particular transactions with the blood vial in question in this case. We feel that the same rulings are equally applicable with expect to Mr. Peratis, only even more so because in fact, there is no foundation--there is no foundation for how Mr. Peratis arrived at his estimation and there is no foundation for how he calculated the amount of blood. In fact, we've talked to him since then and he said that this was purely an estimate. So applying the same rules that the Court applied to Mr. Matheson, that testimony should not be permitted.
Did he testify it was approximately between--approximately eight milliliters? Is that what he testified to?
Well, at first, he said approximately eight milliliters. Then he was asked to clarify the question, what does he mean, approximately eight, and he said between 7.9 and 8.1. now, of course, as your Honor knows, just by looking at the blood vial itself, it would be humanly impossible to, with that degree of precision, determine the difference between 7.9 and 8.1. so how he came up with those numbers seems to defy common sense when one looks at the fact that this is not a calibrated blood vial.
No. My recollection is, it's marked on the side of the tube 10 ml. That's the purple top.
No. I know it's not calibrated. I'm just saying that the label itself is--there are 5 ml purple tops and there are 10 ml.
This is what's been--I don't know if it actually says 10 ml's on it, but everyone has been under the assumption this is a 10-milliliter tube, and I believe Mr. Matheson testified to that. He said that that was his long-time assumption. In fact, I think the tube actually has a capacity of 12 milliliters. I don't know if that's really all that significant in terms of the Court's ruling here. But the point is that there is no adequate foundation and can be no adequate foundation for this kind of testimony.
Now, as I'm sure as Mr. Uelmen will also agree, because I know that he's researched this part of the law as we have, even if a party did not make those substantive objections at the time of the preliminary hearing or grand jury, we do not waive them and can remake those objections at the time that the testimony is introduced in the form of a transcript. The only objections that are waived are objections that go to the form of the testimony, but not any substantive ones such as lack of foundation. An objection that something is leading or suggestive would be waived if not raised previously. But all of these substantive objections would remain. So if what we had--if we could imagine Mr. Peratis testifying in court and being asked, "How much did you draw," we would object, no foundation. That objection would be sustained in light of the Court's rulings with regard to Greg Matheson. Now, I don't think it's an objection that the Defense could ever overcome. So that portion of his testimony, if the Defense wants to introduce the transcript testimony, should be stricken and then the remainder read to the jury.
Could I save the Court time on this? I think I can. This is completely misrepresenting and misleading as to what Thano Peratis has already testified to. He's not relying on the test tube, all right? He says: "I drew 8 cc's. "How did you know how much it was?" He says: "I just looked at the syringe, and it looked to be about 8 cc's." I saw the syringe in his office. The syringe is calibrated by cc's. Okay. That's how one does it. He didn't rely on looking at the test tube after all. He looked at the syringe. That's the sworn testimony at the preliminary hearing. That's the sworn testimony in the grand jury. He's not just an expert. He's a percipient witness. He's simply saying: "I drew blood, I looked at the syringe, and it was 8 cc's. "Was it exactly 8 cc's? "No. It could have been as little as 7.9 or as much as 8.1." It comes in for that. And I would add one other point at this time, your Honor.
Well, Mr. Uelmen was actually addressing the admissibility of the grand jury testimony. He then brought up a second issue which is that none of it should come in, not because it's not grand jury testimony as opposed to preliminary hearing testimony, but because we can't lay a foundation. Since I was the person who was going to put on Mr. Peratis as you may recall and the person who had made the motion to strike their testimony--
Right. But I consider this to be a waiver of any other argument on the other issue. All right. Proceed.
Okay. They are suggesting that he has said something to them subsequently in time about his testimony in the preliminary hearing and the grand jury. No. 1, when Mr. Goldberg had the argument last week on this issue, he actually suggested they were prior inconsistent statements. We know of no prior inconsistent statements made by Mr. Peratis which would contradict his sworn testimony at the preliminary hearing and the grand jury.
More importantly, your Honor, at this point in time, we have not received a single statement in discovery from the Prosecution, a written statement of this witness, an interview with this witness, an audiotape of this witness, a videotape of this witness. We have received absolutely no discovery at all that contradicts what Thano Peratis said in sworn testimony both in the grand jury and at the preliminary hearing.
But here's the problem. They have--Mr. Peratis is on your witness list, and they have prepared apparently to impeach that testimony. Under the rules of discovery, since it's direct impeachment, they may not have to turn that over to you. All right. But--
No. He was on their witness list, your Honor--that's what I'm informed of--initially. They just chose not to call him.
Well, I understand. But if they had some statement from him before they rested their case when he was still on their witness list, we should have received that witness or it's a discovery violation.
No. No. I've heard enough, guys. Thank you. All right. I have previously, and if I haven't formally on the record, made a finding of unavailability of Mr. Peratis, we will allow his prior testimony from the preliminary hearing. Likewise, I believe that 1291 does also allow for the presentation of the grand jury testimony. As to the foundational objection that Mr. Peratis is not competent to testify to the amount of blood that was actually drawn, the Court will overrule that objection. Peratis' testimony at the preliminary hearing was that he's been a jail nurse or registered nurse for 20 odd years, that drawing of blood is a routine thing that he does and that the--I assume that there will be some other foundation later in the record, and I'll allow this testimony subject to that later foundation that calibrated syringes are used for the purpose of drawing the blood, that the purple top tubes are the type that are marked--my recollection of the photograph that I saw, it's marked 10 ml at the bottom of the tube, is the type that was used in this particular case. So the objections are overruled. All right. We'll be in recess until 9:00 o'clock.
Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
Kelli Sager, Esquire Anne Egerton, Esquire Patricia Duncan, Esquire
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I N D E X
Index for volume 196 pages 39175 - 39481
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Day date session page vol.
Monday July 31, 1995 A.M. 39175 196 P.M. 39298 196
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PROCEEDINGS
Motion to quash subpoena on 39175 196 Tracie Savage
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Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
DEFENSE (402) witnesses direct cross redirect recross vol.
Savage, Tracie 39224u 196 (402)
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DEFENSE witnesses direct cross redirect recross vol.
MacDonell, 196 Herbert (Resumed) 39261n (Resumed) 39318n 39328mc
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
MacDonell, 196 Herbert (Resumed) 39261n (Resumed) 39318n 39328mc
Savage, Tracie 39224u 196 (402)
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
553 - photograph 39379 196 of a sock with a white q-tip
554 - photograph 39394 196 of Dr. Henry Lee with a sock held over his head
555 - photograph 39394 196 of Dr. Henry Lee with a sock in hand
556 - photograph 39394 196 of Dr. Henry Lee taking a photograph through a microscope with Messers. Blasier and Scheck looking on
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1279 - brown sock 39270 196
1280 - document 39288 196 from the national weather service
He says: 'I drew 8 cc's. How did you know how much it was?' He says: 'I just looked at the syringe, and it looked to be about 8 cc's.' I saw the syringe in his office. The syringe is calibrated by cc's.
Just by looking at the blood vial itself, it would be humanly impossible to, with that degree of precision, determine the difference between 7.9 and 8.1. So how he came up with those numbers seems to defy common sense when one looks at the fact that this is not a calibrated blood vial.
We have received absolutely no discovery at all that contradicts what Thano Peratis said in sworn testimony both in the grand jury and at the preliminary hearing.
All right. Counsel, thank you for another entertaining afternoon.
As to the foundational objection that Mr. Peratis is not competent to testify to the amount of blood that was actually drawn, the Court will overrule that objection.