Sidebar: drying times cross-exam

📄 Sidebar: drying times cross-exam — Monday, July 31, 1995

Address:

C:\DEPT103\CRIMINAL\1995\JUL\31\SIDEBAR-DRYING-TIMES-CROSS-EXA.DOC

TRIAL

▲ Day 125 of 167

◀ Direct examination of Professor Herbert MacDonell (part 2) Lunch recess ▶

Date: Monday, July 31, 1995 • Utterances: 26

At a lunch recess sidebar, Judge Ito blocked defense expert testimony on blood drying times on the sock, ruling that the witness lacked adequate foundation to testify about drying experiments, dew point conditions, or surface body temperatures. Neufeld tried to salvage the testimony but Ito consistently found the expert unqualified for each specific scientific question raised.

# 1 (The jury was excused and the following proceedings were held at the bench:)

# 2 THE COURT:

We are over at the side bar. Mr. Neufeld, here is my problem. If I find a sock drying experiment to be irrelevant because of a failure to adequately duplicate conditions, I think his expertise is two more steps removed from relevance, so that is the problem we are having here, one. And two, foundationally what I was trying to tell you is that has he done any experiment regarding socks worn by individuals? If he hasn't, then the fact that he has done experiments on clothing and blood drying is interesting, but it is not relevant to this issue because the issue was the sock presumably being worn by somebody and it is also being covered by something, I assume, at some point in time as well, not only the shoe, but being covered by whatever pant leg this person was wearing. So the hint I gave to you was, you know, clothing, different articles of clothing are worn on the bodies in different manners and you needed to establish that foundation. But I think you are far afield at this point.

# 3 MR. NEUFELD:

Well, let me ask you this: I think--

# 4 THE COURT:

Also, as far as the objections to this guy telling us what the dew point is, you didn't qualify him for any of this.

# 5 MR. NEUFELD:

I don't think I have to qualify him for the dew point. Let me just tell you what--

# 6 THE COURT:

Do you know what is a dew point is?

# 7 MR. NEUFELD:

You mean what is a dew point? I can ask him if he knows what a dew point is and he will be able to explain it scientifically as a criminalist. I understand. I will explain and I will be glad to do that.

# 8 MS. CLARK:

I would be interested to hear the foundation he is going to do on that one because I think somebody who is an expert in one of those atmospheric conditions, one of those guys from Griffith Observatory, would be required, because he is trying to extrapolate that there was no dew. He can't do that.

# 9 MR. NEUFELD:

The fact of the matter is that the dew point was seven to eight degrees below the temperature the entire night and therefore there is no dew.

# 10 THE COURT:

Counsel, don't forget we are talking the dew point at lax, so let's not fight over something that is of mild interest.

KEY QUOTE

# 11 MR. NEUFELD:

Lax frankly is closer to the water. The precipitation and moisture in the area is a greater factor than when you go inland.

# 12 MS. CLARK:

I don't think the interpretation of low dew based on the lower due point than temperature--

# 13 THE COURT:

I am just sharing with you some of my observations.

# 14 MR. NEUFELD:

Let me just tell you the second thing. I think I am permitted to elicit, because I think it is obvious, that because surface body temperature is going to always be warmer than 63, 64, 65, 66 degrees--

# 15 THE COURT:

We don't know that. We don't know that. How do we know that?

# 16 MR. NEUFELD:

Because he can testify--he testified what a person's blood temperature is in the body, testified to what a person's body temperature is.

# 17 THE COURT:

Have you ever heard of frostbite where you get frostbite? Surface temperature is not always over 63 degrees. I agree with you, it is not a preposterous.

# 18 MR. NEUFELD:

No, no, no. The surface temperature on somebody who is outside in Los Angeles on June 12th, okay, is going to be--he can give an opinion.

# 19 THE COURT:

Peter, Peter, here is the problem. You don't have the foundation to ask that question with this guy. You can ask that of a medical expert, Dr. Huizenga, if you wanted to, somebody like that, but this guy, unless he has got some other qualifications, is not going to be able to tell us that. I'm not saying it is not interesting. I'm not saying it is not relevant. I'm saying this guy can't tell you that.

# 20 MS. CLARK:

And it doesn't get you very far if he did. That is another issue.

# 21 THE COURT:

Who knows what it is coming in here for.

# 22 MR. NEUFELD:

So at this point in time, without further foundation, you are not going to allow him to testify to an estimate of drying time?

KEY QUOTE

# 23 THE COURT:

Yes.

# 24 MR. COCHRAN:

Bosco, are we going to do him at one o'clock?

# 25 THE COURT:

Off the record.

# 26 (Discussion held off the record.)

Temperature

procedural

Key Quotes (4)

Lance A. Ito

If I find a sock drying experiment to be irrelevant because of a failure to adequately duplicate conditions, I think his expertise is two more steps removed from relevance

Ito signals he is likely to exclude the testimony entirely, framing the foundational failure as compounding rather than fixable

Lance A. Ito

You can ask that of a medical expert, Dr. Huizenga, if you wanted to, somebody like that, but this guy, unless he has got some other qualifications, is not going to be able to tell you that.

Ito closes off the line of questioning while leaving a narrow door open through a different witness

Peter Neufeld

So at this point in time, without further foundation, you are not going to allow him to testify to an estimate of drying time?

Neufeld concedes defeat and gets Ito's ruling on the record

Lance A. Ito

Counsel, don't forget we are talking the dew point at lax, so let's not fight over something that is of mild interest.

Ito dismisses the dew point argument as a sideshow, deflating Neufeld's meteorological angle

Evidence (2)

Informal

The sock found at Rockingham, central to defense argument about blood transfer timing

discussed — defense sought expert testimony on blood drying times on the sock

Informal

LAX weather data, specifically dew point readings on the night of June 12

discussed — Neufeld argued dew point was 7-8 degrees below temperature, meaning no dew present

Notable Exchanges (3)

Lance A. Ito•Peter Neufeld

Ito systematically dismantled each element of Neufeld's proposed expert testimony — drying experiments, dew point interpretation, and surface body temperature — finding the witness unqualified for all three

strategic

Marcia Clark•Peter Neufeld

Clark challenged Neufeld's dew point argument, arguing a meteorological expert from Griffith Observatory would be required to extrapolate no-dew conditions

adversarial

Johnnie Cochran•Lance A. Ito

Cochran broke the tension by asking about the afternoon schedule ('Bosco, are we going to do him at one o'clock?'), prompting Ito to go off the record

light

Light Moments (1)

Johnnie Cochran

Cochran addresses Ito as 'Bosco' — a nickname — while asking about the afternoon witness schedule, cutting the tension and moving everyone off the record

Objections

None recorded

Proceeding 7085 • 26 utterances

Criminal Trial

Department 103