Okay. Let's move on to the motion. There is a motion to strike--actually a renewed motion to strike with regards to the foundation for the blood evidence, which I think is the appropriate characterization of where we are at this point.
I believe that's an accurate characterization, your Honor. Actually, this motion really renews our prior objection to the admission of comparative evidence using the reference sample of Mr. Simpson's blood sample prior to the appropriate laying of a foundation for the admission of that blood sample. And I believe your Honor's ruling at the time was that you were not going to dictate to the Prosecution the order of their proof, that we could proceed subject to the laying of a foundation. Our motion at this point calls to the Court's attention that there is no foundation in this record for the admission of a reference sample of Mr. Simpson's blood. And, therefore, unless the Prosecution is going to offer some additional evidence to lay that foundation, all of the DNA comparisons and all of the conventional serology comparisons comparing the reference sample of Mr.--the alleged reference sample of Mr. Simpson's blood must be excluded from evidence. Now, the Prosecution has filed with the Court a trial brief, trial brief no. 7, in which they assert that there is no need to call the nurse who actually drew the blood from Mr. Simpson in order to--
Excuse me. Mr. Uelmen, forgive me for interrupting. Do we have People's 183 available?
I believe what we have available is a photo of People's 183. The actual exhibit itself has never been produced or offered in evidence other than a photograph. Certainly, calling the nurse would be the most obvious and direct way to lay this foundation, and there is at this point no explanation for the failure to call the nurse. The closest thing to an explanation comes in an argument contained in this brief that somehow, the Defense should be precluded from inquiring of the nurse as to how much blood was drawn at the time of the actual taking of the sample. But the problem, of course, is that what is represented in this brief misrepresents the testimony of the nurse. It's asserted here that: "The Defense will never be able to establish a sufficient foundation for nurse Peratis to testify to the amount of blood drawn from the Defendant. The reason is that nurse Peratis will testify that he has virtually no experience measuring the amount of blood drawn from a person and put in a reference vial. Moreover, he did not measure the amount of blood drawn in this case. His prior testimony is to the amount of blood drawn was a complete guess lacking any foundation whatever." And that is simply not an accurate characterization of nurse Peratis' testimony at the preliminary hearing. The testimony at the preliminary hearing proceeded as follows:
Cross-examination by Mr. Shapiro: "Question: How much blood did you withdraw from Mr. Simpson? "Answer: Approximately 8 cc's. "Question: When you say `approximately,' you did not measure the amount? "Answer: Well, it could have been 7.9 or it could have been 8.1. I just looked at the syringe, and it looked at about 8 cc's. I withdrew the needle from his arm. "Question: Nobody asked you to take a precise amount of blood? "Answer: No. "Question: And you did not record the amount of blood you took? "Answer: No. It's just routinely, that's about the amount I usually draw. "Question: And you do this on a routine basis every day? You do this every day in the jail, take blood? "Answer: Whenever--not for this sort of thing. It's usually for alcohol, blood alcohol. "Question: But you do take blood on a regular basis?
"Answer: Yes." So it's quite clear from the prior testimony that the nurse looked at the syringe and gave a very precise range, that what he drew was from 7.9 to 8.1 cc's. We believe that the testimony of this nurse is essential to lay the foundation necessary for the People to prove as they must, that the reference sample to which they are comparing all of the unknown blood exemplars for DNA analysis and conventional serology analysis is actually the blood of Mr. Simpson. That is not established in the record at this trial thus far by the testimony of Detective Vannatter. Detective Vannatter simply testified that he was present when the nurse drew the blood and then he was later given a vial, a purple-topped vial, which he put into an envelope and transported back to the Rockingham scene. And there is an essential gap in that testimony. Detective Vannatter did not testify that he observed the transfer of the blood from the syringe into the purple-topped vial, nor can we simply infer that what he was given was the same blood that was drawn in the syringe or fill that gap simply by speculation, because any inference to that effect is rebutted by the affidavit itself that the nurse allegedly filled out at the time this transfer took place. Now, your Honor will observe the language of that affidavit certifies that--and I'll read it. "I, Thano Peratis, collected a blood sample from the right arm of the above-named subject on June 13th, 1994 at 1430 by vena puncture using a sterile, dry hypodermic needle on a--needle or syringe and using the disinfectant as identified."
Right. "I deposited the sample into an evacuated dry, clean vial, which vial I received from Vannatter; and after initialing a label on the vial, I returned the vial containing the blood sample to the above officer. "I declare under penalty of perjury that the foregoing is true and that this declaration was executed on May 19th, 1994." Now, there's a real problem here, of course, because the date that appears on that affidavit under the evidence code must be presumed to be a true date. That is, the Court in the absence of any absence to the contrary, must presume under evidence code section 640 that a writing is truly dated. That means that on this state of the record, that affidavit was completed on May 19th, nearly a month before the alleged operation that he was describing and verifying allegedly took place. If we follow the evidence code, the certificate is on its face presumed to be a fraudulent certificate. And in the face of the existence of that fraudulent certificate, we certainly cannot infer that all of the proper procedures were followed in this case. Obviously, there were some mistakes made, and those mistakes have to be explained before your Honor can simply infer that the proper procedure was followed and that what we have in this case is actually the blood that was drawn by that syringe from Mr. Simpson. So we don't have a foundation in the testimony of Detective Vannatter nor do we have a foundation in this affidavit or certificate itself.
The People have made the argument in their trial brief that the California evidence code permits the Court to utilize this certificate as a business record so that through hearsay contained in the certificate, we can lay the foundation. There are two problems with that. Actually, three problems. The first problem, of course, is that the certificate is presumptively fraudulent. The second problem is that no foundation was ever laid to establish that this certificate is in fact a business record. No person in the course of this trial has gotten on the witness stand and testified that this certificate was made in the regular course of business, that it was made at or near the time of the act or condition or event, that the custodian or other qualified witness testifies to its identity and the mode of its preparation and the sources of information and method and time of preparation were such as to indicate its trustworthiness. Those are foundational requirements required for any exhibit to be admitted as a business record. We don't have any testimony to establish that.
All we have is a photograph produced through another witness who was not even present when this certificate was made saying that when the blood was brought to the laboratory, this certificate accompanied it. And that does not supply the necessary foundation to establish that this certificate is indeed a business record or an official record. The third problem with this is that there is no legal authority in California to allow the identity of the donor of a sample to be tested in a laboratory to be established by hearsay evidence through the use of a business record or an official record. The only legal authority presented by the Prosecution is the case of County of Sonoma versus Grant W. And if your Honor will look at that case, you will discover that the identity of the donor was stipulated in that case. So the purpose of offering a hearsay record in that case was not to prove where the substance had come from. It was simply to prove the routine laboratory analysis of the substance. And that's very different from relying on a hearsay record to establish the identity of who the actual donor of the substance examined was. There are problems with the use of hearsay for this purpose. Number one, it deprives the Defendant of the opportunity and right to cross-examine. And the answer to that is going to be, "Well, if you want to cross-examine, you can call him yourself." The evidence code gives us the right under section 1203 to call to the witness stand and cross-examine the declarant of any hearsay statement. So certainly we have that right. But exercising that right obviously is going to come at a price. And the price that will be exacted in this case is that if we have to call the nurse ourselves to cross-examine him, we are put in the position of then bolstering the Prosecution's case and supplying an essential element necessary to the proof of their case. And that is precisely the situation that was addressed by the United States Court of Appeals for the ninth circuit in the case that I supplied to your Honor that was just decided last March. The case is Wigglesworth versus Oregon. And in that case, the Court was confronted with an Oregon statute that permits a laboratory report with respect to the identity of a drug to be admitted without testimony by the technician who conducted the analysis, but gives the Defendant then the right to call and cross-examine the technician.
And the Court noted that the dilemma this presents to the Defendant to either forego cross-examination or risk bolstering the Prosecution's case had been avoided in Oregon by an Oregon Supreme Court opinion, which is also with the material supplied to the Court, State versus Hancock, to say that in such a situation, then the cross-examination must occur during the State's case in chief. That is, the Defendant must be given the opportunity to cross-examine during the State's case in chief before the hearsay report is admitted in evidence to supply the essential element. But since the Wigglesworth case had come before the trial Court before the Hancock decision had come down and the Defendant had not been given that opportunity, the Court found that there was a violation of due process and granted a writ of habeas corpus. So I want to make it very clear that the objection of the Defendant to supplying this essential element of the Prosecution's case through hearsay is not only an objection based on grounds of the denial of the constitutional right of confrontation, but also a denial of due process in the sense of requiring the Defendant, if he wishes to assert his opportunity to cross-examine to himself, risk supplying that missing element of the Prosecution case. So to sum up, on the state of the record, we have right now at this point in the trial--and the People have indicated they do not intend to call nurse Peratis--we are missing an essential gap with respect to the chain of custody of the blood that was drawn from Mr. Simpson's arm in terms of that actually being the blood that provided the reference samples. That gap cannot be filled by the testimony of Detective Vannatter, and in any event, it is rebutted by the existence of a certificate which is presumptively fraudulent in which the nurse is certifying that the procedure under which this blood was drawn and placed in a vial certified on May 19th, 1994, a month before the procedure actually took place. So that discrepancy has to be explained before we can find the necessary foundation, and the only way to explain it is to call nurse Peratis to the witness stand.
Your Honor, before I begin, I'd like to give a copy of some excerpts from the transcript that I typed up that I would like to refer to and it might be easier if the Court had it.
You may or may not. I have outlined certain things. I gave a copy to Defense counsel.
Your Honor, I'd also inquire whether the Court's copy of People's 183 for identification depicts the May 19th date, because on my photograph, it was covered over by a piece of red tape.
It is covered over by a piece of red tape. However, the tape is semitransparent and it does appear to be a "5" to me and I did look at it with a magnifying glass this afternoon.
Because on my copy, as I said, I could not see that, although I don't think that's particularly important at any rate. I'd like to address counsel's argument and why it is we have proven the chain of custody of the blood vial, and I would like to divide it up into three points. First, I'd like to clarify what I regard to be--and what I so believe the Defense has defined as the rather narrow issue that the Court has to decide this afternoon. In other words, focus the Court's attention on what really is the only issue before the Court. Then I'd like to discuss the sufficiency of Detective Vannatter's and Detective Lange's testimony in establishing the chain of custody. And thirdly, I'd like to discuss the business records or official records exception to the hearsay rule. But the Court need never reach that third issue because I think you can dispose of this on the first and second issues. The first, the People and the Defense appear to agree, if you read the moving papers, that the law of the State of California is with respect to a blood vial, a reference vial, that the chain of custody of that reference vial can be established by a police officer who says that they were present and saw it being drawn and then took custody of that reference vial. The case that we cited for that proposition was People versus Lewis, and counsel also cited it. We both agree on how to interpret it. That's exactly what happened there, and I think we don't really need a case to tell us that because we know that routinely, that is how it is done in courts and probably in front of your Honor, even in driving under the influence cases where an officer says, "I was present. The blood sample was drawn. I took custody of it and delivered it to the crime laboratory," and that that is all that is needed to establish that the item is what it purports to be. Where we appear to disagree is, we appear to disagree as to the sufficiency of Detective Lange and Vannatter's testimony in accomplishing that end. And to be even more precise in framing the issue, what the Defense has said in their moving papers is, they have said that the alleged gap in the chain of custody exists at a single link of the chain, so to speak, in the jail dispensary. They say that between the time that the blood left the Defendant's arm and ended up in the possession of Detective Vannatter, there is a gap that prevents us from establishing chain of custody according to cases such as People versus Lewis and ordinary principles of common sense. So it is that precise link in the chain, the point in time between the time that the blood left the Defendant's arm, which Detective Vannatter saw and Detective Lange saw, and the time that they took physical possession of it that the Defense claims this gap exists where the Prosecution has failed to prove chain of custody. That is the only issue before this Court and the only issue that the Court is now being asked to decide and has to decide this afternoon. The other issues the Court need never reach at all if it resolves that issue, as I'm confident the Court will in favor of the Prosecution. Now, to take a look at the case law briefly before I get into the transcript just to drive home the point that this really is the only issue, not only do the People and the Defense agree in our interpretation of People versus Lewis, but I think we also agree in our interpretation of the other cases cited by the Defense, most notably American Mutual, which was a civil case, in which the decedent died in a car accident and his heirs wanted to obtain money from an insurance company and there was a Defense that he was intoxicated. It was back in the days of contributory negligence. And the Defense in that case wanted to show that he was intoxicated at the time. In that case, there was absolutely no evidence whatsoever, not a business record, not an official record, no percipient witness who saw the blood vial being drawn from the Defendant. But there was a blood vial that was introduced that purported to be his blood. And all the Court said there, quote, on page 497:
"It is rudimentary that a specimen taken from a human body for the purposes of analysis must be identified before such specimen or any analysis made from it maintains standing as evidence," unquote. Well, we don't need a case to tell us that. We know that from common sense. There has to be some evidence to say this blood came from this individual. That is all this case is saying, American Mutual. The other two cases--and I won't discuss them in any more detail--that counsel cited are McGowan and Madden, which both cited American Mutual, quoted the exact language that I just quoted to the Court. Actually, it wasn't a quote, but they used the exact same language, stood for the exact same proposition. And in those three cases, there was zero evidence, not any evidence whatsoever, not a percipient witness, not an admissible business or official record as to where this blood came from, and the Court simply said, "Well, you have to have some evidence to show that it is what it purports to be." We have that evidence here and the evidence is rather clear. Looking at the transcript testimony, your Honor--and I wrote out what I regard to be some of the more relevant points. Under no. 1 on my summary, we have testimony that Detective Vannatter and the Defendant went to the jail dispensary establishing personal knowledge. This is the part that--that counsel claims is lacking. We have Detective Vannatter asking the nurse to draw a blood sample for him, again establishing personal knowledge. We have him testifying in Court both to the People and the Defense that he personally observed the blood sample being drawn from the Defendant with the syringe, again establishing personal knowledge. And to quote, under no. 4 in my summary: "What did you do with the blood
Sample, if anything, after it was taken? "Answer: I maintained custody of the blood sample and turned it over to the criminalist." It seems pretty unambiguous. He's standing there, he's watching this happen, he sees it taken and the blood sample is then turned over to him and he brings it to Mr. Fung. Next, under where I'm summarizing Vannatter's testimony on cross--and this is perhaps even more significant--Mr. Shapiro asked: "Question: Where was Detective Lange at the time you took O.J.'s blood sample from the nurse? "Answer: He was with me." There's never been any doubt in this case as to whose blood sample that is and that Detective Vannatter had personal knowledge of it. It is almost as if the Defense now wants to somehow strike the question that was asked by Mr. Shapiro and the answer given as lacking foundation for personal knowledge. It was clear to Mr. Shapiro as it was to everyone listening to this testimony that these are events that he observed and witnessed--and witnessed that he has personal knowledge of. I won't read some of the remainder of the testimony that I've summarized over there, but I'd like to skip over to Detective Lange's testimony on direct examination where he was asked: "Question: Were you present when the blood sample was taken from the Defendant? "Answer: Yes. "Question: And where did it go after that? "Answer: It went to my part--it went into my partner's possession." And then later: "Okay. Did you see it after the blood sample was drawn from the Defendant and given to Detective Vannatter? "Yes. "When did you see it? "At the time it was withdrawn and turned over." It's very clear that they are there, that they are witnessing this, that he sees the blood drawn and he sees it turned over to Detective Vannatter. Now, what counsel is saying is that there's some sort of a gap. I don't see the gap. But what would this gap be? What happened? Did Detective Vannatter and Detective Lange suddenly become very squeamish, these two seasoned homicide detectives, and they fainted upon seeing the blood drawn from the Defendant's arm? Nurse Peratis woke them up by slapping them after he had switched the blood vials and handed the blood vial to Detective Vannatter so Detective Vannatter really doesn't know from his own personal knowledge that the vial came from the Defendant's arm, or did he ask Detective Vannatter like, "Will you gentlemen please turn your back to us, close your eyes and count to 10 for a few moments," and then he switched the blood vials and handed it to them, or did he ask them to leave the room?
I mean we can't really think of a logical scenario under which they didn't have personal knowledge of these events. It's very clear that they were there, that these are things that they saw and witnessed and that they're testifying to continuous sequence of events. And if that did happen, when he asked Detective Lange, "Where did the vial go after the blood was drawn," Detective Lange would say, "I don't know because I was on the floor. I just fainted." So this argument is clearly without merit and the transcript testimony is absolutely 100 percent clear. But if there is an alleged ambiguity, your Honor, then isn't that something that of course the jury ultimately has to decide because ultimately it is a jury issue? And let me just say on that score, this is not something that we're concerned about, because if there really was this ambiguity that counsel is talking about, we'd want to do something to clarify because we wouldn't want the case to go to the jury in a posture where a legitimate argument could be made by Mr. Cochran that we really don't know whether the reference sample came from the Defendant or some other person that might have been present at the dispensary at that time who really committed this crime coincidentally. But Mr. Cochran is not going to make that argument. And if it is--if he does, of course, we'll be very happy. But he's not going to make that argument, not only because it can't be supported by the transcript and it's not logical and doesn't involve common sense, not only because we all know that this is the Defendant's blood--there are many issues the Defense has raised in this case. They talked about contamination, conspiracy and whether things have been switched. But Mr. Cochran is not really going to stand before the jury and say, "We really don't know if this reference sample came from the Defendant or not," because it's not plausible and because he really can't argue that because there's another way that we can prove chain of custody or the identity of whose blood the reference sample is that is given to us by the advent of DNA technology that wasn't available at the time that many of the cases that I've cited to the Court and counsel cited were written. And that is that we know that item no. 12 and item no. 14--concededly both parties agreed to this--are blood from the Defendant. I'm talking about the dots of blood in the foyer, 12 and 14, the dot of blood in the bathroom. And remember, all we have to do here is to prove that the blood is what it purports to be. In other words, blood from the arm of the Defendant. We know that those are the Defendant's samples, not only because both parties seem to agree to that, but also because as to item no. 12, if I'm not mistaken--I'm sure the Court will correct me if I am--we have a five-probe match on the DQ-Alpha and also polymarkers, and although the Court may not like the word match, that seems like a match. That seems like virtual identity, and I don't think Mr. Cochran's really going to argue to the contrary. And we know that that matches the reference vial. So we know circumstantially, even without Thano Peratis, even without Detective Vannatter or Lange, from the DNA evidence that what is concededly blood of the Defendant in his home matches the reference vial, so the reference vial really didn't come from the mystery person that was present in the dispensary and whose blood was substituted while Detective Vannatter and Lange were out cold on the floor. So if there is any alleged ambiguity, and we don't think there is, it's clearly a jury issue and it's a jury issue that the People are not at all concerned about and I don't think Mr. Cochran is going to do a lot of arguing about when he has his opportunity to address the jury. Legally he can. Tactically, he won't.
I'd now like to discuss the business records exception, your Honor, and the official records exception, although, as I said to the Court in trying to defining the issues, the Court does not have to address that issue at all. It's completely unnecessary because as soon as the Court concludes, yes, this is sufficient, this is enough evidence to go before a jury, you don't have to reach this. And what I would say is that chain of custody, of course, is a factual issue, not really a legal one. It simply involves common sense, trying to prove that something is what the proponent is saying it is. And the only difference between the decision that your Honor's being asked to make this afternoon and the decision that the jury will be asked to make is that the standard of proof is different. Otherwise, everything else is the same. It's a common sense issue. It's a factual issue. The standard of proof for the jury could be beyond a reasonable doubt in their estimation if they find that this evidence is one of the circumstances that goes into a chain of circumstances upon which the People are relying proof of the guilt of the Defendant. They would have to find beyond a reasonable doubt that the item is what we say it is. In other words, the Defendant's blood, according to the circumstantial evidence instruction. But the standard of proof for your Honor is merely whether there's enough evidence. In other words, a prima facie case in order to be able to submit this factual dispute, if we can call it that, to the jury. And clearly, if the argument that is not the Defendant's blood is so poor that I don't think the Defense will ever make it in front of the jury, I don't see why the Court would accept it here where the standard of proof that your Honor is going to apply is significantly lower than the standard of proof that they will apply. But to get to the business records exception--I don't want to belabor the issue. I will try to address it quickly because, as I said, I don't think the Court needs to necessarily reach this--there are just a couple points I would like to make. First of all, what we are relying on to be more accurate in my terminology is not the business records exception, but the official records exception. And the only distinction between those two exceptions is that the official records exception does not require a custodian or other qualified witness to testify in order for the record to come in. Official records can be and usually are self-authenticating.
And in the article that I appended to my points and authorities, I described how it is that a laboratory report--and we're not dealing with a laboratory report here. That's even a more complex issue--but how a laboratory report can come into Court without ever having any witness testify in order to lay any foundation for that record under the official records exception. And Jefferson also talks about this in his treatise. And I won't go into all the elements of how that can be done. I laid it out. It was fairly succinct. It was on page 19 of the article that I read. And there are various inferences and presumptions that you apply in allowing an official record in without having an authenticating witness. The only one that I would like to specifically discuss, since the Court--if the Court feels it needs to simply look at that portion of my article--the only portion I would like to specifically discuss--
--is the timeliness requirement because it has been raised by counsel. That is, the suggestion that here, the evidence envelope contains the date of May the 19th. And what I would say there is that the case of People versus Udder, which we discussed and I also discussed in my article, says that one of the ways we can get an official record in without having a witness testify and prove the timeliness requirement that was made at or near the time of the act, condition or event described therein, is that we have a presumption in the State of California, as counsel noted, that a record that contains a date is deemed to have been or is presumed to be truly dated. And when the record indicates that the date that the record was filled out is the same as the date that the analysis was performed in People versus Udder--it was a chemical analysis, a laboratory report--that the trustworthy--that the timeliness requirement is satisfied simply by looking at the date on the evidence itself. In other words, if you have a date on the analyzed evidence report saying, "I did this analysis on June the 13th," and the report is dated June the 13th and you have evidence indicating that the test was on June the 13th, that in and of itself establishes the timeliness requirement without anyone testifying that it was made at or near the time of the act, condition or event.
Of course, here we can establish it because we know that the Defendant was brought in on June the 13th at the time that's contained on this record and we also know from Detective Vannatter that he received this envelope and that it obviously was filled out before he received it. So we can infer and presume the timeliness requirement from the face of the record itself, and the record is dated June the 13th as to the date that the blood was drawn. The May the 19th date is entirely irrelevant from a legal perspective because if the Court reads this, what I call the chain of custody statement, it is in the form of a declaration, the declaration saying, "I declare under penalty of perjury that the foregoing is true," and that this declaration was executed on 5-19-94. So the declaration is invalid because it obviously couldn't have been executed on 5-19-94. Presumably Mr. Peratis filled out the declaration portion of this prior to the time that he actually drew the blood. But the declaration portion was never admissible because we do not allow in declarations as any exception to the hearsay rule except in motions. But before a jury, the declaration itself isn't admissible.
What makes this admissible is not that it's in the form of a declaration and executed under penalty of perjury. What makes it admissible is that it meets all the requirements of the official records exception to the hearsay rule. So if there was no declaration on it, if it didn't say, "This is under penalty of perjury," it would be equally admissible. And the fact that there is a declaration under penalty of perjury doesn't make it any more admissible. The fact that it's incorrectly dated doesn't make it any less admissible. It's simply irrelevant from a legal perspective. Moreover, this document has been published before the jury without objection, most notably in the testimony of Collin Yamauchi summarized under no. 5 on my points and authorities, where Mr. Yamauchi is asked on cross-examination by the Defense attorney: "Question: Now, let's move in on the bottom half from, quote, `officers request to withdrawal,' unquote, down. "Now, do you recognize this to be a picture of the envelope that contains Mr. Simpson's blood vial?" Again, everyone understands that the testimony has established this is Mr. Simpson's blood vial and obviously they can't now object to their own question. We didn't object. "Answer: It's kind of hard to read, but I recognize the name of the nurse that corresponds to the vial of blood and my notes. "Question: And can you see now that this box we're focusing in on now refers to the affidavit of the person withdrawing blood? "Answer: I can read that affidavit. Quote, `a person withdrawing blood,' unquote. "Question: And it indicates that Thano Peratis, the nurse, gave the blood vial to Detective Vannatter." So here we have the Defense again publishing this, and it had previously been published by the People in front of a jury reading the declaration, putting it up on the elmo, and now they're saying that we're supposed to essentially unring that bell or strike that testimony even though they elicited it and unpublished this document. And on that score, I'd just like to bring to the Court's attention the case of People versus Dorsey which talks about the necessity of making specific and timely objections then and may also be of interest to the Court later on in other issues that I'm sure the Court is going to confront when it comes time to moving in exhibits.
This is my conclusion. And if I may just point out, your Honor, that we did file our brief first on--technically, we were the moving party. So that would entitle us to two arguments.
And maybe I shouldn't have taken so long because this is really a pretty simple matter and can simply be resolved by looking at Detective Vannatter's testimony. I do apologize for that. I hope I haven't made it sound more complex than it really is by treating it perhaps with more seriousness than it actually deserves.
But at any rate, in Dorsey, what happened was that a bank record was introduced in a nonsufficient funds case under the business records exception, but no testimony at all was presented at or near the time of the act, condition or event and no testimony to the modus preparation. And counsel in that case for the Defense objected "Objection, no foundation" repeatedly, and the objections were overruled. What the Court held in Dorsey is that that objection was not sufficiently specific because when you're making an objection, you have to state the specific grounds, which would mean that the specific objection that should have been made at that time is "Objection, no foundation as to manner and mode of preparation." That objection was not sufficient under California law in order to preserve the issue for an appellate Court to look at, and we know that objections have to be specific under California law under 353 of the evidence code. And they went on to say that:
"This is particularly true where, as in the instant case, the objection easily could have been cured by the party offering the testimony if the specific reasons for the objection had been stated to the trial Court." Well, here we have a situation where obviously, many of these technical issues that are being raised could easily have been cured if a timely objection had been made. But not only did they not make a specific objection, they didn't make any objection at all and in fact introduced this testimony on their own. So I do not believe that under 353 of the California evidence code, they have in any way preserved this issue for the Court to now decide whether this testimony that has already gone before the jury and been read into evidence should now somehow be removed from the record. So to summarize, your Honor, this testimony of Detective Lange and Vannatter has established a chain of custody. I don't think the Court needs to reach this, but it would qualify as an official and business record. And by the way, our own Supreme Court in People versus Chapman said that there was no constitutional challenge in a laboratory report coming in. That's a recent California Supreme Court case which is binding on the Court unlike a ninth circuit case.
And I would like to say also in conclusion that I didn't address the arguments of the Defense to the effect that certain testimony by Thano Peratis should not be allowed for lack of foundation. Counsel was not here when we had that discussion in the context of Mr. Matheson's testimony, and it really is not right I think at this point for analysis because we would only reach that if and when he ever got to the witness stand, and we submit that that need never occur. Thank you.
Thank you, your Honor. I realize we've probably already consumed more time than it would take to call Thano Peratis to the stand and elicit the testimony that is missing here. But it's an important question as to who is going to call this witness for obvious reasons. The suggestion that Detective Vannatter and Lange's testimony provides the necessary foundation simply leaves out the fact that neither detective offered any testimony based on personal knowledge that they observed the transfer of the blood from the syringe to the vial.
Now, we'll concede, if either of them had testified and very easily if they observed this, that testimony could have been elicited, that they watched the nurse as the syringe was evacuated into the vial, they never took their eyes off of it and then the vial was handed to them. In the absence of a contradictory certificate, they might have the foundation. But there's two problems. One is, no such testimony was elicited. And two is that we have a contradictory certificate in which the nurse himself signs under penalty of perjury that this procedure did not take place on the date that the People allege that it took place on. Now, with respect to the business records versus official record exception, it's quite clear under the evidence code that an official record is not self-authenticating either. Section 1280 requires a foundation showing that: "The writing was made by and within the scope of duty of a public employee; "That the writing was made at or near the time of the act," and the certificate itself discloses here that it was not. And:
"3, that the source of information and method and time of preparation were such as to indicate its trustworthiness." And that's an important qualification that I'll return to when I conclude. The other point I want to make is with respect to the Udder case. The People are citing Udder for much more than it really stands for. The Udder Court made it quite clear that the Defendant didn't even raise the objection in the trial Court as to the lack of foundation. Therefore, he couldn't raise it for the first time on appeal. But in passing, the Court noted that the certificate attached to the sample was dated correctly. And the evidence code requires the Court to presume that the date on the certificate is an accurate date. Here, that presumption cuts precisely the opposite direction. It doesn't authenticate this blood sample. In fact, it rebuts the authentication, because if we are going to presume, as the evidence code says we must, that this was executed on May 19th, then what does that tell us? That this procedure never took place. What is the explanation for that mistake? Mr. Goldberg gets up here and says, "Well, presumably he filled it out in advance." That's not what the evidence code says. The evidence code says presumably it's correct; and if there's some other explanation, you, as the proponent, have to come forward with evidence to prove that other explanation. What we're dealing with here in terms of proving the chain of custody is a matter of common sense. It is a matter of reliability. It is a matter of the confidence we have that, in fact, this is the blood of Mr. Simpson. And in the presence of a certificate filled out by the nurse that says it was executed a month before the blood was taken, there may be a number of explanations. It may be that the nurse had another envelope from another case with another vial of blood. It may be that he did sign it in advance. And in that case, it would contradict the testimony that the envelope and the certificate was supplied to him by Detective Vannatter. So whatever the explanation is, it raises some serious questions about what went on here. And our position quite simply is that those questions have to be answered by the People, by the Prosecution in order to meet their obligation to prove the chain of custody that is essential before the reference sample can be admitted in evidence.
Thank you, counsel. Prior to having this particular assignment, it was my privilege to serve down at the metropolitan courts where I tried 37 driving under the influence cases in a row, and this is an issue that came up with regularity there every day. The issue here is what weight one can give to the inference from this testimony, because concededly, both sides agree that there's no testimony by either Detective Vannatter or Detective Lange that they observed nurse Peratis to take the blood taken from Mr. Simpson's arm in the syringe and then place it in the vacutainer. However, Detective Lange did testify that he did receive from nurse Peratis the Defendant's blood sample. That creates the inference or a reasonable inference that can be taken from that testimony that he did, in fact, observed that or was present when that was done. That's an inference that I think one can reasonably draw from this evidence. The issue here is admissibility. The issue is--really goes to the weight that the trier of fact will accord this evidence based upon that factual absence of that particular testimony. So the objection will be overruled.
Also, as to the argument regarding an official record, there is the internal inconsistency between the dates. However, the first date does bear the correct date in the first part of the declaration by Thano Peratis, and the clear facts as elicited in this case indicated all of these events took place in June, not in May. So the objection on that basis is also overruled. All right. Anything else, counsel? All right. We'll stand in recess until tomorrow morning at 9:00. Thank you.
Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 178 pages 34601 - 34865
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Day date session page vol.
Thursday June 29, 1995 a.m. 34601 178 p.m. 34721 178
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Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S witnesses direct cross redirect recross vol.
Deedrick, 34677c 178 Douglas W. (Resumed) 34726c
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ALPHABETICAL INDEX OF WITNESSES
WITNESSES direct cross redirect recross vol.
Deedrick, 34677c 178 Douglas W. (Resumed) 34726c
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EXHIBITS
PEOPLE'S for in exhibit identification evidence page vol. Page vol.
459 - Diagram 34698 178 entitled "Hair shaft" (Computer printout)
460 - Diagram 34709 178 by Mr. Deedrick
461-A - Photograph 34712 178 of an examiner viewing evidence through a microscope
461-B - Photograph 34713 178 of an examiner removing hair from a pillbox and placing it on a glass slide
461-C - Photograph 34714 178 of an examiner placing hair on a slide with forceps
461-D - Photograph 34715 178 of an examiner adding permount on a slide
461-E - Photograph 34716 178 of an examiner blotting excess solvent
462-A - Photograph 34732 178 of an examiner looking at a slide using a stereomicroscope
462-B - Photograph 34735 178 of a close-up view of a slide under a stereomicroscope
462-C - Photograph 34735 178 of an examiner using a comparison microscope to compare materials
463 - Chart 34739 178 entitled "Microscopic comparison of hairs"
464 - Chart 34753 178 entitled "Black head hairs - 16 different individuals"
465 - Chart 34754 178 entitled "Microscopic comparison of hairs"
466 - Chart 34761 178 entitled "Fibers"
467 - Posterboard 34764 178 entitled "Cotton fibers"
468 - Posterboard 34766 178 depicting manmade fibers
469 - Photograph 34775 178 entitled "Microspectrophotometer"
469-A - Graph 34777 178 entitled "Absorbents"
469-B - Graph 34779 178 entitled "Absorbents"
469-C - Graph 34780 178 entitled "Absorbents"
470 - Photograph 34783 178 entitled "Fluorescent microscope"
471 - Photograph 34788 178 entitled "Ftir microscope attachment"
471-A - Photograph 34790 178 entitled "Infrared spectroscopy comparison chart"
472 - Photograph 34793 178 of a nylon automotive fiber
473 - Photograph 34798 178 of a nylon automotive fiber
474 - Photograph 34799 178 of a nylon automotive fiber
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DEFENSE for in exhibit identification evidence page vol. Page vol.
1219 - 1-page report 34612 178 re Masland industries
That means that on this state of the record, that affidavit was completed on May 19th, nearly a month before the alleged operation that he was describing and verifying allegedly took place. If we follow the evidence code, the certificate is on its face presumed to be a fraudulent certificate.
Did Detective Vannatter and Detective Lange suddenly become very squeamish, these two seasoned homicide detectives, and they fainted upon seeing the blood drawn from the Defendant's arm? Nurse Peratis woke them up by slapping them after he had switched the blood vials and handed the blood vial to Detective Vannatter so Detective Vannatter really doesn't know from his own personal knowledge that the vial came from the Defendant's arm
It may be that the nurse had another envelope from another case with another vial of blood. It may be that he did sign it in advance. And in that case, it would contradict the testimony that the envelope and the certificate was supplied to him by Detective Vannatter.
Detective Lange did testify that he did receive from nurse Peratis the Defendant's blood sample. That creates the inference or a reasonable inference that can be taken from that testimony that he did, in fact, observed that or was present when that was done. That's an inference that I think one can reasonably draw from this evidence. The issue here is admissibility... So the objection will be overruled.