And, Mr. Neufeld, this is--I'm sorry. Mr. Harris?

272-B.

272-B.

Thank you.

And I think you said, Dr. Weir, that your reduced Xerox copy of the exhibit boards is identical to the large boards that we have here in court; is that correct?

Yes. That's right.

And so, sir, even on your reduced exhibit board that you relied upon when you wrote these tables, on your copy, sir, for item G10, it says on your copy a possible 1.2 allele, correct?

Yes.

Okay. So you had that information available to you when you prepared these tables; is that right?

That's right.

And, sir, these same biased mistakes that you made for these particular items that we just described--

Counsel, why don't you rephrase that question, please.

Sure.

The same mistakes you made in your calculations and computations for items 303, 304, 305, 31 and G10, those mistakes apply to your calculations for your two-donor theory; is that correct?

Objection. Assumes facts not in evidence as phrased.

Overruled.

I should probably clarify what we're talking about. We're talking about calculations involving DQ-Alpha on the mixed stains. If there was a possibility of there being a 1.2--and it's not seen, so we don't know whether it's present or not present--then the calculation should include both those possibilities for all my calculations. And if I did not include them, then I'm sincerely sorry and I'm also embarrassed. And I haven't finished. The DQ-Alpha results are, of course, part of the profile frequencies I report. They are generally--they are an important part. I don't tend to minimize that. They are not the most important part in the sense that their frequencies are not the most discriminating.

Dr. Weir, the same mistake that you made on each of those items for your two-donor calculations also applies to all of your three-donor calculations for the same items; is that correct, sir?

I think I just said that all my calculations involving DQ-Alpha on the mixed stains, if there was a possibility of 1.2 of not being seen, should have included both the possibilities. If I did not, then it was an error.

And in each of the instances, sir, where you made that error, those were items where, according to the Prosecution, Mr. Simpson's profile could not be excluded; is that correct?

I don't know that.

Would you care to look at the board or your smaller versions of the boards to confirm if each of those five items Mr. Simpson is listed in the not excluded category?

Well, let's go through them one at a time. I forget which ones they are.

303, 304 and 305, the Bronco console.

That's correct.

Item 31 on the Bronco console?

Well, I thought that we had said that I was--31, it was a definite call that the 1.2 allele was present.

Well, assume for the moment, sir, that based on the testimony of both Dr. Cotton and Mr. Sims, that whenever you have a mixture and you see the 1.3 and the 4 alleles, that you don't know whether the 1.2 is there or not there. Would the same mistake apply to item 31?

Objection. Assumes facts not in evidence, misstates the evidence.

Sustained. Rephrase the question.

Assume for the moment, sir, that if you have a mixture, as you have in item 31, where you see the 1.1, the 1.3 and the 4 alleles, that given the nature of the system, one cannot tell whether the 1.2 allele is there or not there.

Objection. Misstates the evidence.

Overruled.

My calculations on item 31 with the alleles that was stated to be present, and the 1.2 is stated to be present.

So what I'm asking you, sir, I would like you to assume for the purpose of this hypothetical that in a mixture with a 1.1, 1.3 and 4 alleles are actually present, that the examiner can't tell whether the 1.2 allele is there or not. In that situation, sir, would the same mistake be made in your calculations on item 31 as for the other items that we just described?

Objection. Improper hypothetical.

Overruled.

If the allele--if we aren't certain about whether the allele is present or not, then it should have been included in the calculations.

Okay. And item 31 is another item where, according to the Prosecution exhibit, Mr. Simpson's profile is not excluded; is that correct?

Mr. Simpson is not excluded. However, that had nothing to do with my calculations.

And, sir, on G10, the glove item, the final item in this group, Mr. Simpson is included in that group as well; is he not?

He is not excluded.

Okay.

That's correct. Not excluded, yes.

Now, in this case, Dr. Weir, for every stain that is a mixture, there could possibly be two contributors, correct?

Umm--

Excuse me?

I was thinking.

Oh.

What we know from there being a mixture, there was more than one contributor. So, yes, there may possibly be two contributors.

And there may possibly be three?

There may possibly be three, although it's less likely given the evidence we see in the profile.

And there may possibly be four?

We are talking about increasingly unlikely possibilities.

All right. But there's no way to state with any certainty how many contributors there are; isn't that correct?

If we don't know the contributors to any stain in the whole case, if we don't know who contributed, we don't know who contributed period.

Well, it's not just a question of who, but as to the mixtures, one cannot state with any degree of certainty how many contributors there are; isn't that correct?

That's just what I said. We don't know who contributed period. We don't know how many they were, who they were, what their ethnic background. We don't know who they were period.

Now, let's look at item 29 if you would.

Mr. Harris?

260.

Thank you.

Now, in your approach that you offered this jury yesterday afternoon and this morning, sir, you provided a range of frequencies based on different assumptions, is that correct, for the mixtures?

We provided some frequencies of those mixtures were given by different numbers of contributors.

And they are based on assumptions though; is that correct?

I'm not sure I understand. All the calculations assume a lot of things like independence--

And they also assume the number?

I'm sorry. Could the witness finish his answer?

Yes.

Sorry. I thought he was. I apologize, Dr. Weir.

I forget.

Would you like to say something else, sir?

I believe not.

Okay. They also assume in some of these calculations that there were two donors as opposed to three; is that right?

Well, that's--I wouldn't say that was an assumption. Those are the frequencies with which we find the mixed stains if there were two contributors or if there were three or if there were four. There's no assumption being made. That's just the result when there were that number of contributors.

And, obviously, according to your approach, the number changes depending upon how many contributors you start off with; isn't that correct?

Oh, I think we've demonstrated that.

Now, are you familiar with the report entitled "DNA technology and forensic science" published by the national research council of the national academy of science?

Yes, sir.

In fact, you're not just familiar with it, sir, you actually testified before that--that committee that authored this book; isn't that correct?

That's true.

And you made submissions of data to that committee that authored this book; did you not?

Not quite. I provided them with a prepublication copy of my paper subsequently published on the FBI's data. So the committee was aware of my findings about independence in the FBI's data. And, in fact, in the report, they say that I had demonstrated independence of the alleles in the FBI's database.

And we'll come back to that in a little while, Dr. Weir, but right now, let me ask you this. Not only did you testify before the NRC committee and offer them a prepublication copy of your article, but after the report came out, you actually wrote letters and other publications criticizing this report, didn't you?

Yes. I was extremely disappointed by the report and some of the aspects. It does not--it did not then and does not reflect proper scientific approaches to the forensic--to the statistical interpretation of forensic data.

And that's your opinion, sir, correct?

No. I'm afraid it's not. I'm here under oath to tell the truth, and I have to--I have no choice but to tell you, the report contains mistakes. That is not an opinion.

Well, Dr. Weir, would you agree that there's a controversy about some of the positions taken in the NRC report?

Objection. Calls for hearsay.

Overruled. You can answer the question.

There is no controversy over the fact that there are errors in the report.

We'll come back to that in a little while, Dr. Weir. First, however, the report actually has a sentence describing recommending an approach to handling the interpretation of mixed stains such as are found in this case; isn't that correct?

There is one sentence in the report.

And that sentence in the report is one which you disagree with; isn't that correct?

I don't think I would say so. I have some confidence after all in the authors of that report. So I'm--I can't not think otherwise, that when they wrote that sentence, they meant to say the correct thing. It could be interpreted either way. I would give them the benefit of the doubt.

Well, Dr. Weir, you mentioned earlier I think under direct examination that you prepared a report in connection with this case.

That's right.

Can I call your attention, sir, to page 10 of your report?

You certainly may.

Did you include in your report the following quote, sir? "Simply adding the frequencies of all possible contributors to a mixture--and then in parenthesis, you have, "NRC 1992," closed parenthesis--"Ignores the essential nature of a mixture. It represents the contributions of more than one person." Did you write that in your report?

Yes, I wrote that in my report. I'm just trying to think what that sentence is actually saying here. If it's talking about--

Well, sir, I'm sorry.

Your Honor, I would ask that the Court ask the witness to be responsive.

Hold on. Hold on. Hold on. The question was, did you write that; yes or no? The answer is in the record. Ask your next question.

Thank you.

And would you agree, sir, that in that sentence, you are citing the national academy report for the proposition that in a mixed stain, one simply adds the frequencies of all possible contributors to the mixture?

That's true.

And you are saying in that sentence that you are critical of the NRC position because it ignores the essential--because in your opinion, it ignores what you call an essential fact?

Could you try that sentence--I've lost the train of the question.

Well, in that sentence, are you not only describing what the NRC position is, namely, that it calls for the adding of the frequencies of all possible--that it simply adds the frequencies of all possible contributors to a mixture, but you interpret it to mean that it is simply adding the frequencies of individuals, and by doing so, it ignores in your words the essential nature of a mixture?

Yes. If the NRC report doesn't--if that was the intention of the sentence, that we should add up the frequencies of single contributors, that ignores the fact that there was a mixture, and that would be wrong.

I'm sorry. Well, when you wrote this sentence in your report, sir, you didn't state it as alternatives; well, if the NRC meant this, then I disagree with the NRC, but if they meant something else, then I agree with the NRC, did you?

I didn't write it there, but that's what I mean. That's what I think.

Sir, isn't it true that in the sentence, however, you simply state that the NRC is calling for the--the summing up of the individual frequencies and that you're critical of that? Isn't that what the sentence says?

That's what the sentence says, but I think what I think. What I believe is that if the sentence means as I state there, a single contributor, then it's not right. If we could interpret it kindly to mean multiple contributors, then it would be appropriate to add the frequencies. And I'm sorry if my language isn't as precise as the NRC's report.

Now, Dr. Weir, in your report, I call your attention to table 30, please, found on page 39, and also table 29C on the previous page.

I have them.

Okay. According to your report, you come up with 30 different possible frequencies for item 29 just for a two-donor or three-donor assumption, if you will; is that correct?

Well, I'm not sure. We need to look. If there are two contributors to the mixed item--and I'm using four databases to do these calculations. All these calculations at this point are PCR profiles, and I'm using the FBI's PCR databases, and there are four of them. Now, I don't know--couldn't know who these unknown contributors could be. I'm going to assign them frequencies from the data I have available, which is the FBI's. And there are four databases. So it looks like 10 possible ways we could have pairs of contributors, and then the possible ways of getting three contributors is more than that and it's probably 20. I'm not sure of the exact number.

Okay. So that would mean that between those two alone, there's 30 different permutations, 30 different frequencies that you articulate for the meaning of the mixture; is that correct?

Well, that's not quite right. If there's a mixture and there were two contributors that we don't know who they were and there were 10 possible--well, it's not even possible scenarios. It's the 10 possible sets of data that I have. If there were three contributors and I have four databases, it looks like there are 20 combinations of the databases I could use. So I wouldn't add them together. If there were two, I have 10 possibilities. If there were three contributors, I would have 20 possibilities. There's a lot of different ways of having three people from different groups.

If one construed the NRC method that I just read to you and that you cite in--I'm sorry. Let me--you cite the NRC method. Let me read to you the sentence as it actually appears on page 59 of the national research council report, Dr. Weir.

Please do.

It says: "If a suspect's pattern is found within the mixed pattern, the appropriate frequency to assign such a `match' is the sum of the frequencies of all genotypes that are contained within. That is, that are a subset of the mixed pattern." Are you familiar with that sentence?

Yes, I am.

Okay. Now, if the NRC meant by that that you simply add up the genotypes of all the different individuals who could possibly contribute to that, that would be the reason that you were critical of it in your report; is that correct, sir?

If they meant to add up the frequencies of single people, they would be wrong. It would be very misleading to do that as an interpretation of the mixed stains. So I was being very critical.

Doctor, could you pull the microphone closer to you, please. Thank you.

Well, let me ask you a simple question I hope, sir.

Thank you.

For item 29, according to Cellmark, they see three DQ-Alpha alleles, correct?

They report a 1.1, a 1.2 and a 4.

Okay. And you would agree, sir, that Mr. Simpson's profile on the reference sample is a 1.1, 1.2; is that correct?

That's right, yes.

So he cannot be excluded.

He cannot be excluded.

And you would also agree that Nicole Brown Simpson's profile is a 1.1, 1.1, correct?

Yes. That's correct.

And she can't be excluded?

On the basis of the DQ-Alpha typing from Cellmark alone, she could not be excluded.

Well, she also could not be excluded on the basis of a polymarker typing as well; isn't that correct?

I'm not sure. I would have to look at the details.

Well, do you have that report handy?

Yes. I'm just--so this is item--I need to be careful. This is item 29.

Yes.

The polymarker from Cellmark. There are five of these loci and the mixture has--at LDLR has alleles a and B and Nicole Brown has an a and a B. So she's not excluded. GYPA has A and B as does Nicole Brown. She's not excluded. HBGG has an A, a B and a C. Nicole Brown has an A and a B. Not excluded. D7S8 has an A and a B and a mixture, and also Nicole Brown is AB. Not excluded. And GC, the mixture has an A, a B and a C and Nicole Brown has an AC. So she's not excluded on any of those systems.

And neither is Mr. Simpson; isn't that correct?

Mr. Simpson's profile is not the same, but he is also not excluded.

So the one allele in this mixture which neither Mr. Simpson nor Nicole Brown Simpson can account for is the number 4 allele, correct?

Well, now we have switched, have we, to the DOJ's PCR determination?

No. I'm looking at Cellmark's.

Oh, excuse me. The DQ-Alpha, the allele 4, that's right. That's not contained in those profiles of Simpson or brown.

Okay. And you also know and I think you stated in your report and Dr. Cotton has already testified in this case that Mr. Goldman is excluded from the--from being a contributor to this stain as well; isn't that correct?

Yes. Mr. Goldman has a 1.3, which is not seen in the mixture. So he was excluded.

So the question, sir, is, who contributed the number 4 allele. And what I want you to do, Dr. Weir, is simply answer one question for me. Is there a method that you can utilize to determine what percentage of the population could contribute the 4 allele to this mixture? Can that--can that question be answered?

It can be answered, but I wouldn't answer it in this context. I mean, I wouldn't do that calculation because it would have no bearing--

Your Honor, if you would instruct the witness to be responsive. The question simply asked him can he do it.

No. No. He's entitled to explain his answer, counsel.

I would not do such a calculation to interpret a mixture. We--these--these mixtures stains are not really any different from the other ones. They are profiles of DNA and they have various characteristics. The point of what we're doing is to try and say how likely would we see that profile if the--if the Prosecution's theory was correct and they have the--they say they know who contributed, then what we see is as we would expect. If we know who the contributors were and we see the profiles, then we don't have any surprises.

Next question.

Sir, what I want to ask you to do--I'm sorry. Can you though do the calculations that I simply requested?

I can, but I wouldn't.

When you say you wouldn't, you mean, they're not the ones that you think are appropriate; is that correct, sir?

No. They are not appropriate.

Well, sir, the question that I'm asking you is the very question or the very methods described in the NRC report which in your report you state that you disagree with; isn't that correct?

I think I followed that statement. The--the--if the NRC's recommending add up the single contributors, then I disagree because it's wrong.

Now, I want you to follow for this jury, if you would, the approach described in the NRC report which you think is wrong just so we can provide this jury with some other frequencies.

Objection. Misstates the evidence.

Rephrase the question.

What I would like you to do, sir, is, using the data that was available to Cellmark in this case, I would like you to calculate the frequencies of all people in the population who have the potential of contributing the number 4 allele to this mixture. And what I would like you to rely on, sir, in doing your calculations--

What's next in--

1201.

1201.

1201? Ask this be marked as Defendant's 1201. I've shown a copy of it to--

Is this the FBI database?

No. Cellmark's.

Cellmark. All right.

Showing the witness 1201. You said you've worked with Cellmark over the years, sir?

Yes.

You're a consultant to Cellmark?

No, I'm not a consultant, but my university has a contract with them.

And the university has a contract to do consultant work for Cellmark?

The university has a contractual arrangement to undertake data analysis. I don't think that's a consultancy.

One moment.

Dr. Weir, have you ever seen this database before that I put before you?

This is not a database. This is a list of frequencies, and I have seen it, yes.

I'm sorry. Okay. And this is, as you know, the frequencies and the frequency table that Cellmark says it uses when it does its calculations for DQ-Alpha profiles; is that correct?

Yes. That's true.

All right. Now, actually what I would like to do, sir, is ask you one preliminary question before we get to the question about the 4 allele. And that question is, sir, what I would like you to calculate is the percentage of the population that cannot be excluded as contributing to this mixture, okay? That's a very different question than the question that you answered before to the jury, but it's a question I would like you to answer using that database.

I'm very uncomfortable in doing any calculations I know to be wrong and not relevant to this data.

I appreciate--

I appreciate that, sir, but I'm going to ask you to just simply answer my questions.

And I'll repeat my objection to doing so. I will do so if instructed, but I object very strongly.

I'm going to enter an objection under 352 based on this evidence as misleading and confusing based on the evidence before the Court and the jury as well as irrelevant.

Your Honor, it's a speaking objection.

It is. Sidebar, court reporter, please.