Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect that we've been rejoined by all the members of our jury panel. Mr. Deedrick, would you resume the witness stand, please. And, Mr. Bailey, you may continue with your cross-examination.

Thank you, your Honor.

By the way, Mr. Deedrick, does any governmental authority to your knowledge license examiners of hair and fiber?

I don't believe so.

You don't hold any license in that regard, do you?

I've never heard of that, no.

Okay. During the recess, toward the end admittedly, did I show you a copy of an article from the journal of forensic sciences?

You did, yes.

Is that one that you've seen before?

I have seen that, yes.

And that--you've mentioned a fellow named Gadett I believe with the RCMP, the Royal Canadian Mounted Police?

Right.

Is that, by the way, the Canadian organization that would be the nearest counterpart to the FBI; would you say?

Yes, I would.

The federal police of Canada?

That's correct.

And are they generally reputed to have pretty responsible forensic scientists?

I've only spoken with Mr. Gadett, and he has done some work with hairs.

But you have read about some of the studies that they've done in an effort to demonstrate the repeatability of one examiner agreeing with another on--

Right. I've read his papers and I've read papers by Barnett and others refuting what he did.

Well, in this specialty like any other, the experts are frequently in disagreement with one another, aren't they?

Experts will disagree, yes.

Now, that doesn't often happen when it comes to fingerprints, does it?

Objection. That calls for speculation, beyond his expertise.

If he knows.

Sustained.

Is it not true that in the areas we mentioned earlier where identification is possible, positive identification, that experts seldom disagree on a frequent basis--

Objection, your Honor. Speculation.

--in your experience?

Overruled.

Yeah. I don't have a whole lot of experience with their distinctive areas. That is, one would expect that if it's a science that is recognized as a means of positive identification such as comparing striations and bullets or ridges of fingerprints, one would expect them to agree a great deal.

All right. Now, when you were taught at the FBI academy initially in your class in hair and fibers, were you taught to use a checklist of criteria?

Well, it was--it was a method that was--was shown to us and it's something that I used initially.

You used it for a number of years, didn't you?

I did for a while there and then I decided that it was not really useful.

Can you tell me anything about the checklist you used when you were a neophyte in the specialty?

The checklist is simply a number of microscopic characteristics that might be present in the cuticle, the cortex and the medulla and other characteristics about the hair such as if it's curly or wavy or straight, cross-section, the color, racial characteristics. These are just a number of points to remind the new examiner to look at and to check on just to make sure that you're looking at all the characteristics you should be looking at and it's an excellent tool, starting tool for new examiners.

Well, at what point do examiners normally abandon the use of the checklist in your experience?

Well, we've had examiners that used it all the way through.

That is a somewhat more formal and regulated approach to the comparison process; is it not?

Well, it's--it's--again, it's a way to document what you're seeing, and if you feel like that is necessary, then you would do it.

But the position you frequently take, Mr. Deedrick, in these cases is that the breath of your experience is such that you no longer need the guidance of a checklist; is that not so?

Well, I don't need it written down on paper. The checklist is pretty much in my head as to what I should look at and pay attention to, and I don't compare checklists, I don't compare notes, I don't compare photographs. I just compare hairs that I actually see in the same field of view.

Are you familiar with the checklist which was urged as proper in the study that we've just discussed by the RCMP?

In the Wickenheiser study?

Yeah.

It was a computer data type checklist that they used.

That's not what I'm referring to. Did you see published in the study a checklist which the authors considered to be essential?

Well, I don't recall all of the--all of the points in that particular checklist, but I know different--different studies that have been done have utilized checklists and also computer cards.

Is it not true that some of your colleagues in the profession view the use of these kinds of checklists as mandatory to a valid hair comparison?

Well, some--some laboratories may require a checklist.

Well, do you consider the RCMP to be a responsible group, law enforcement?

I believe they are.

All right.

Put that up, Mr. Harris, please. Can you bring that down?

First, I want to show you the top section of the table published in that study and ask you whether or not you recognize these as valid characteristics to be looked at when studying hair. In other words, are these some of the things that you look at in an informal way?

Yes. The medullary index is not something that that is measured. And again, I believe that this classification system could be incorporated and maybe the intent is to incorporate it into some type of computerized searching method.

All right.

Your Honor, for the record, may this be designated Defense 1218?

1218. Mrs. Robertson says 1220.

You see where each of the differing characteristics in each category is given a numerical or assigned number in those seven categories?

Right. I see that, yes.

Okay. Would you agree that unless the numbers match in each of the seven categories between a known and a questioned hair, that the comparison must be discarded?

I don't believe so, no.

You don't?

No. I don't--I don't compare or reach a conclusion based upon the checklist or--

Okay. Would you illuminate the lower part of the chart.

Would you look at what's described as secondary characteristics and tell us whether or not these are things that you look at informally when you do your comparisons?

That's correct. That's pretty much.

Do you see that these different kinds of characteristics within a category are also given numbers?

I do, yes.

All right. Do you understand that one of the authors of the article to which we are referring is the head of the hair and fiber section of the RCMP?

I didn't know that, no.

And that the other one is an examiner like you in the RCMP now?

Well, objection. Is counsel testifying? The witness is indicating he doesn't know. Motion to strike.

Overruled. Proceed.

Do you know that in the study which is described in this article, that it was suggested that it was mandatory in order to reach a comparison for all of the first seven groups to match by number and that there was a second requirement for the secondary group that we are looking at now?

And that is, that if you vary by more than one number in the secondary category, that too would defeat the comparison. Do you agree with that?

No. No.

Well, you look at them and you compare them, yes.

Uh-huh. Do you know the results of the two examiners used in this study who compared 930 hairs?

Would it surprise you that one could compare only seven pairs and the other six?

Objection. Hearsay. Objection.

Sustained.

Did you not read this journal article at some point?

I recall reading it. I don't recall--I didn't--wasn't able to finish it completely and properly digest it and understand it.

I mean when it was published.

Well, I can't remember. I do remember reading it, but I don't recall the contents entirely.

Well, assuming that my suggestion is to what the authors insist are proper criteria is true, that is that's what the article says, if you had read something with which you disagreed so sharply, wouldn't you remember it?

Well, I disagree with the methodology of employing a numerical value to characteristics such as this methodology is here. We attempted to do the same thing back when the international hair symposium was set up in 1985, and the effort was to see if all examiners would characterize a particular hair exactly the same. And there are some differences where some person might say the pigment granules were medium, one might say fine or fine to medium. So assigning a particular numerical value to the characteristics became a little arbitrary and difficult at least to computerize, to place a value on an association. But that doesn't mean that--that two examiners who are looking at the same hair would not associate that questioned hair with the same individual. It doesn't mean that at all. It just means that based on their experience and what they observe, they see certain characteristics and they make a note of it. And that's one of the difficulties with using this particular methodology, because there may be some variation in the range of experience of the examiners.

And there are advantages to not using this methodology; are there not?

Well, I don't see necessarily an advantage to using it. The only advantage that you may get out of this is that you make sure you look at certain characteristics. But to assign a value so that you could determine the--what--if it's a good match or a good association, I don't think that that's something that should be done.

When it comes to the sciences of identification that we discussed, are there not certain minimum requirements before an identification can be asserted within each of the professions, if you know?

And again, are you incorporating all the different areas of forensics such as fingerprints?

What does the FBI--excuse me.

I'm sorry. Go ahead.

What does the FBI require for fingerprints, minimum points of id, if you know?

I've spoken with different examiners and gotten different responses on that. So I'm not sure. You might have a person that has 20 years of experience and they may not need seven points of comparison or six, whereas a person just starting out, they may require more. I don't know if they have a set number. They may.

Yeah. I think if there was a standard set by the group and it was below the standard, perhaps it would be subject to some rigorous cross-examination, yes.

Is it not true that departments other than your own advocate the use of lists, checklists of criteria?

They do. I've seen it.

For instance, I think you told me that you have visited the Connecticut state police.

Well, I haven't visited them. I've had--I worked some cases that they've sent down to me to look at.

Do you read any of their publications on forensic investigation?

I've never seen that, no.

Your Honor, do we need this up on the screen, especially since there was a People's objection to hearsay under 721 of the evidence code.

Are you done with this?

I'm done with that exhibit.

All right. Thank you.

I'm going to show you a checklist from this manual and ask you if you agree with its use.

May I see it?

Sure.

Could I ask that the witness be shown this before?

I think he indicated he hadn't seen it.

He hadn't seen it.

Mr. Bailey.

Okay. Could you put that up, please, Mr. Harris.

Your Honor, there would be an objection unless the witness adopts--

I think we need--we have a foundational problem here.

I believe you testified that it is your understanding that other forensic laboratories do advocate the use of formal checklists in evaluating hair?

Right. I am aware that other labs will use checklists.

And I just showed you one of those from the Wickenheiser study from the Canadians. I'd like to show you one used by the Connecticut state police.

May I ask that the witness be shown this before it's put on the screen, your Honor?

Yes. We have a foundational problem here, counsel. Take it down.

May I show him in the book?

May I approach, your Honor?

You may.

Showing you a book called physical evidence published by Dr. Henry Lee and others under the aegis of some organization, I guess the Connecticut state police, I refer you to page 143 and see if you recognize that as a checklist used by some examiners.

That looks like a checklist.

Okay. Are you familiar with all of the criteria that you just saw on the list?

I don't--I don't think I gave it that much time and attention that all of the things went into my brain at once.

Would you be willing to go through it with me and see which ones you used?

I would be glad to.

Thank you.

Would you put it up, please.

Your Honor, there's still foundation lacking.

Sidebar with the court reporter, please.