Yes, your Honor. Do you want to take five minute so I can handle the discovery documents?
Sure. Ladies and gentlemen, we are going to take a brief five or ten-minute recess just to cycle into cross-examination. Please remember all my admonitions. Let me ask you to step back into the jury room.
All right. Thank you. Be seated. The record should reflect the jury has withdrawn from the courtroom. Mr. Neufeld, what do you need?
I want to turn over to the People copies of the items I intend to utilize to cross-examine this witness.
Which will take me about two or three minutes just to put together. What is the--I'm sorry, does the Court prefer to see the overheads first or shall I just--
Miss Robertson, do you have Dr. Shield's CV as a Defense exhibit? What is Defense next in order? It should be 1197.
All right. The Defense has obviously handed us a number of different items. I will start with those which we do not have an objection to. And in terms of describing them, we have been provided what appear to be a stapled package of six charts that look similar to the charts used yesterday in court on the overhead projector, including the summing of genotype, type charts. And at this point, assuming a proper foundation is laid, we have no objection to their use.
We also received what appear to be smaller versions of what I anticipate will be slides used with the witness. Two of them refer to the steering wheel and contain something of a diagram. And again assuming a proper foundation is laid, we have no objection to them. There are, however, in addition to that, what appear to be six slides with the cover of the national research council report and then various portions from that particular report. Our objection is the same as it has been previously with regard to hearsay and evidence code section 721, so I'm simply alerting to the Court that there will be an objection if there is any attempt to use that. And I don't believe the Defense should be able to either read from it or put a slide on the board until a proper foundation is laid under 721. There is a one-page table of what appears to be a frequency chart, database type frequency chart. Again assuming a proper foundation is laid, we have no objection to it.
And then there are two sets of documents, one of which is the--appears to be a copy of the unpublished letter to science magazine that was a topic of discussion in this court some weeks ago. Our objection remains the same to it. Obviously hearsay, not been published in the scientific literature, and again I just want to alert the Court if the Defense attempts to bring out contents or the nature of this report without otherwise providing a proper foundation as to its hearsay nature, then my objection probably will be rapid. And of what has been provided to us, the last item appears to be a series of three letters, four letters, I'm sorry, some from Dr. Weir and at least one to Dr. Weir.
I'm sorry, let me interrupt. I would just ask that I think is the Court's rule on discovery that it is going to be used for cross-examination, that it not be shown to the witness while he is being cross-examined, that for this discussion I would simply ask that the witness step out of the room.
There are number of letters, and again, unless there is a proper foundation, they are obviously hearsay at this point, so I just want to alert the Court that any attempts on the Defense's part--
If they are letters of Dr. Weir's, they could be prior inconsistent statements, et cetera.
They may be. That is what I mean. In other words, I'm assuming a proper foundation will be laid for all of this, but I want to alert the Court that my objections may be very quick and very vocal about items that this Court has already resolved.
Yes, your Honor. I would like to actually resolve one comment on the national academy of science report. Your Honor, I have looked at some of the case law in California since we addressed this issue last with Dr. Cotton, and I frankly have not found any case that says that the witness can pick and choose within a chapter within a learned treatise and say that he can be cross-examined as to a portion of a chapter which he relies on but he doesn't rely on another portion of the chapter.
Okay. I also want to call the Court's attention to Witkin and Witkin says very specifically, your Honor, that--and I quote--
And the statement in Witkin, your Honor, is, and I quote: "Similarity is important to permit an expert witness to be cross-examined concerning those publications referred to or considered by him even though not specifically relied on by him in forming his opinion. An expert's reasons for not relying on a particular publication that we referred to or considered by him on forming his opinion may reveal important information bearing upon the credibility of his testimony." I would also point out, your Honor, that this witness cites the NRC report in his report that was filed with the Court and given to counsel.
Well, if Witkin says it, it must be true.
I frankly have not found any case that says that the witness can pick and choose within a chapter within a learned treatise and say that he can be cross-examined as to a portion of a chapter which he relies on but he doesn't rely on another portion of the chapter.
My objections may be very quick and very vocal about items that this Court has already resolved.
Let's see what the foundation is.