All right. Back on the record in the Simpson matter. Mr. Simpson is now present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Thompson, Mr. Neufeld--did I miss anybody--People represented by Mr. Clarke and Mr. Darden. The jury is not present. Mr. Neufeld, you indicated you had a couple matters before we invite the jurors to join us?

Yes, your Honor. Two matters.

All right. Good afternoon, sir.

Good afternoon. First of all, your Honor, in light of the argument that we just heard regarding the manner in which Dr. Weir intends to present frequency data, one thing is absolutely clear, and if you permit him to testify to those numbers; is those numbers do not answer the same question as appears on those boards like the Bronco board.

The Bronco board question is framed as not excluded--what percentage of the population would not be excluded, and he's answering a different question. That I think there's no dispute about. Consequently, I would ask that the Court instruct the Prosecution not to have--not to let them put these numbers in that column, but instead offer them on either another board or they can simply offer the tables in fact that Dr. Weir has. But since the Court is allowing this testimony, it indisputably answers a different question than the question posed on that board.

Uh-huh. Okay. And what else? You said you had two matters.

Yes. The second one is, your Honor, that in Dr. Weir's report, he refers to a second Cellmark database. There's a 1992 database and then he says a 1994 database. Robin Cotton only testified to the 1992 database. The only database evidence in this case is the 1992 database. This witness cannot lay the foundation to introduce a Cellmark database. That would come from Robin Cotton. Since all the testimony and all the statistics that have been offered so far for the data in this case is predicated on the 1992 database, I would ask the Court to instruct the Prosecution to limit Dr. Weir to the database that's already in evidence because there's no foundation for the other one.

Mr. Clarke?

Oh, I believe we will be able to lay a very careful foundation about that database in addition to the evidence code which allows reliance on that type of material anyway. So I'm not sure where the objection is headed.

Well--no, your Honor. I think there is a problem and we should have this resolved right now. I honestly think that--it's Cellmark's database. They created it, they're the source of it, and it hasn't been introduced by Cellmark. And I don't believe that this witness then has the right to give expert testimony on a database which isn't in evidence. And I thought that was actually an earlier ruling of this Court on a somewhat different issue, but limiting databases only as to those databases which have been introduced in this case and relied upon by the representatives of the two laboratories, namely Cellmark and DOJ.

Frankly, I don't recollect having ruled upon that issue before, Mr. Neufeld.

Well, I don't have it in front of me. But be that as it may, even with--even without that, your Honor, I don't believe that this witness can rely on a database which is not already in evidence from the witnesses, from the laboratory whose data this witness is relying on.

All right. Do you have any case authority indicating that an expert witness under these circumstances is not entitled to rely upon what would otherwise be hearsay evidence in forming expert opinions?

It's not hearsay--it's not just hearsay evidence. It's not--it's not the data of other experts or learned treatises or anything like that. What it is is, he's actually relying on the creation of a database which has never been introduced by the party who would be most appropriate to introduce it, namely the representatives from Cellmark.

All right.

I don't see how that in any way fits into a hearsay exception.

Mr. Clarke.

Well, perhaps I can indicate to the Court the basic manner this will be presented. Not only as to the mixture frequencies. That's--those are calculated based on the FBI databases, if I remember correctly. So this would relate to any comments that Dr. Weir makes about the already reported frequencies. We have no intent of having Dr. Weir, despite the fact that he's done it in his report--the Defense may want to question him about it. He has made his own calculations using some additional steps. I don't intend to introduce those numbers. All Dr. Weir will do in terms of the results that are on the board I anticipate is, he will describe the fact that those are appropriate based on his examination of not only the `92 database that Mr. Neufeld mentioned, but also the `94 database as well as part of what he has examined. Now, he's already described to this Court a fairly close relationship with Cellmark diagnostics in terms of examining the databases. So I'm not quite sure where the objection--where the legal objection is.

I take it to be a foundational objection at this point.

Well, he obtains this material from Cellmark, and they explain to him very carefully what it is and he worked with it and uses it.

Well, I assume I'll hear that during the course--I assume this is a preliminary objection and we'll hear it.

Your Honor, there's a similar concern then given what Mr. Clarke just said. And I wasn't sure of Dr. Weir's testimony about this particular issue. But he also mentioned that for the--for the various PCR databases, he's relying on FBI databases. It's my understanding in this case that both DOJ and Cellmark are relying on Dr. Blake's worldwide database for the DQ-Alpha numbers. And that was what I received in discovery in fact from both DOJ and Cellmark, not FBI databases. And I would for separate reasons ask that--that that be the only DQ-Alpha database relied upon in Dr. Weir's calculations. Certainly the FBI isn't even a party to this case if you will, I mean, has not been part of this case, at least with respect to DNA typing, and there's no way that they can--that there can be any foundation for the other database. And it is my recollection, your Honor, that the Court did limit testimony to those databases that we also received discovery of. So I would have an additional objection to--

Well, then there's a discovery--then they'll be a discovery objection, your Honor, as well with respect to an FBI DQ-Alpha database because the only database we've been given in discovery in this case for DQ-Alpha comes from Dr. Blake's worldwide database.

Mr. Clarke.

In reverse order, in Dr. Weir's February `95 report provided the Defense, it is replete with references to the `94 database from Cellmark, and I have received to my knowledge absolutely no request for that information from the Defense despite the fact that it's been in their possession four months approximately or however long that time period is. As to the DQ-Alpha results, I'm a little unclear what the legal objection is. Dr. Weir can use any database that he feels is appropriate to perform his own calculations, and when his purpose here is simply to offer an opinion about what's the reliability of these frequencies, I don't know anything that stops him from using a North Carolina database or anything that is appropriately used in his profession. So again, I think the Court's identified it as premature, but I see no legal bar at this point to that testimony.

All right. I agree. At this point, I think it is premature. Do you have any other comment to his objection putting the numbers on the board in the same category as the other numbers?

I think putting them in the exact locations as the testimony will reveal what they mean, everything is accurate. These people are not excluded. Dr. Weir will carefully describe in the instances of both two contributors, three contributors or tomorrow, as to the Bronco also, four contributors. We find this combination approximately this often. So I don't see a need to create basically another addition to the board. Otherwise the jury will lose any ability to put all of these pieces of evidence together.

All right.

Your Honor, I just think that that's not what Dr. Weir is even offering these numbers for. I think it's very, very clear that that board is limited to the percentage of the population not excluded. Dr. Weir is not giving that number. He's giving a very different number. That he's acknowledged. And all I'm simply saying is, so as not to further confuse the jury on that point, that he present those numbers on a separate table.

All right. All right. I'm going to require the Prosecution on that board to add in the column of "Frequency" with regards to each one of the mixtures a small label to the side indicating that it is a mixture calculation that is there so that they can differentiate one from the other. But I think it's appropriate to group them in that manner since they are physically found in those locations, and to split it up on yet another board I don't think is appropriate at this point. All right. Let's have the jurors.

I will be able to proceed on those boards without the labels this afternoon?

Yes, but I'm going to direct you to have them by tomorrow morning, perhaps vertical lettering "Mixture" on the edge.

Your Honor, what is the Court proposing it say?

Mixture so we understand it's a different calculation.

Like--

No. Just put in vertical letters m-I-x-t-u-r-e on a label, stick it on the side of the frequency column.

For each--

Each mixture.

Mixture.

Your Honor, just also in terms of scheduling, first thing I intend to get at on cross is the mixtures. Assuming they finish even at 5:00, I would like to break for the day at that point and not have to start my cross until he finishes his direct.

We'll see when we get there if we get there.