Back on the record in the Simpson matter. Mr. Simpson is again present with counsel, Mr. Shapiro, Mr. Douglas, Mr. Blasier, Mr. Bailey, People represented by Mr. Darden, Miss Clark and Mr. Escobar. Miss Clark.

Yes, your Honor. Good morning. I'm asking leave of the Court to be heard concerning the terminology of, use of the word "Match" by our expert, Mr. Deedrick. And the reason I'm asking leave of the Court to be heard on this is that we have citations for the Court in which such language was used by the expert testifying, and we also have reference to the very guide Mr. Bailey was referring to yesterday, which indicates that the use of the term "Match" is appropriate under these circumstances. We also have--

What page?

Page 7. We also have citations coming in by fax from around the country in which other experts have used the terminology "Match" in the arena.

Isn't this a little late?

Well, I never anticipated the Court would preclude the use of the word until the ruling yesterday. And I did not have--obviously during the time I was presenting testimony, I didn't have time to do the research I did last night. But it had been my anticipation that the Court was going to rule in favor of the Defense motion in that regard. I would have done the research in advance, but I did not have any advanced warning of that.

So what would you like me to do?

I'm going to cite to the Court the cases, and I would like the Court to permit the expert to use the terminology because it is very cumbersome for him to continually be thinking up terms that he would not use in place of a term he is accustomed to using and has been approved in all the courts he's testified to thus 400 times prior to this. The hicks guide, microscopy of hair, which was brought out by Mr. Bailey at sidebar yesterday states the following: "Hairs found on the rape victim's clothing which match the suspect's hair serve to corroborate her statements when the suspect denies any contact," indicating obviously the approval of the use of the terminology "Match." In People versus Bonnan, 47 Cal. 3D. 808 at page 823, it indicates that: "The Prosecution presented expert testimony to the following effect: Among other things, the bodies of Gatlin, Grabs and McCaby each reveal the presence of foreign hair that matched Defendant's." People versus Thomas, 180 Cal. App. 3D. Page 47 at page 51, that expert testimony is being--was proffered, and it indicates: "Pubic hair identical to Defendant's was found in Priscilla's bed. Similarly, pubic hair matching that of Priscilla's was found in a combing of Defendant's pubic hair at the time of his arrest."

All right. Do you have any cases specifically on point, counsel, regarding terminology?

We have cases coming in by fax as we speak, your Honor. But the use of the summary of the terminology given in the factual synopses of these cases, in the course of the Court's own language, which is the Court's synopsis of the expert testimony, indicates that that terminology was used appropriately.

No. Do you have any cases specifically on the point of the terminology?

I'm going--I'm going to find out now because the faxes are coming in. We had--we asked for them last night and they're coming in this morning. There was a time delay, three-hour time delay. But I think that the mere fact that we had it used in the guide that Mr. Bailey himself proffered to the Court as the bible on this subject should lay to rest any issues we have with respect to the propriety of that terminology. And I apologize to the Court for not having brought it to the Court's attention sooner, but there was no way that I could know that this issue was going to be raised by Mr. Bailey or that there was going to be a ruling that there was. It was raised just yesterday.

The issue of the word "Match" and hair and fiber?

Absolutely. Absolutely. This is not a new issue. You go back and find it in the record. I'm certain it's there in the sidebar conversations at least a dozen times.

Then I apologize to the Court.

All right. Do you have any other comment?

Yes. I would like the opportunity to present the Court with the additional cases that are coming in through fax right now. I apologize to the Court then if I was remiss in not having brought it to--brought these cases to the Court sooner. I don't recall having had the issue raised and I defer to the Court's recollection of that and I would ask that the expert be allowed to use the term.

All right. Specifically, what terminology are you citing to the Court on page 823?

Of--

Bonnan.

--Bonnan? At the bottom of the page, your Honor, the last paragraph, where it says: "The Prosecution presented expert testimony to the following effect."

Uh-huh.

All right. Any other comment?

Yes, your Honor. I have a case in front of me now. I would further cite to the Court from the FBI forensic science research and training center a report prepared in 1982. The relevant language is on the last line. It says: "However, the `duplicate' hair criterium for a match should be the ultimate goal." I'll submit this to Deirdre so the Court can see it. Another highlighted passage of this symposium--let me quote. "The most important decision made by the hair examiner is deciding when a hair can be said to match or be consistent with originating from a particular individual."

Deputy Magnera, would you collect Detective Lange's pager for me, please.

The following cases are being sent to us right now. They are out-of-state cases, but they deal with an issue of the terminology.

Well, Miss Clark, let's cut to the chase here. Are you asking for a 402 on the terminology "Match"?

Yes, your Honor. I have more here as well. From forensic sciences international: "In essence, an investigator attempts to assess the likelihood of matching fibers." Again: "Matching fibers were found on only 10 garments searched. "Results of a study to determine the probability of chance match occurrence as between fibers known to be from different sources," a paper written by Wilk and Fong and S. Henry Enami in which the abstract begins with the following: "The results of a study to determine the frequency of chance match occurrences among fibers."

All right.

And again, then in another paper published by Richard Bisbing and Michael Wollner: "Natural variation does not preclude the association of hair because sometimes variation serves to personalize the hair specimen. When comparing several hairs from one source, it can sometimes be demonstrated that the questioned hair not only has the traits of the known hair, but that the variation in the questioned specimens matches the variation occurring in the exemplar."

All right. I'll hear from the Defense.

Shall I--

Mr. Bailey.

On the page 7 from which Miss Clark read: "It is concluded that based on this comparison, the examiner may conclude, no. 1, that the hairs are consistent or similar and could have come from the same source; no. 2, that the hairs are dissimilar and did not come from the same source or; 3, that the hairs possess characteristics which are not sufficiently defined to arrive at a meaningful conclusion." Only those three conclusions are permitted according to this manual, which, although published in 1977, Mr. Deedrick himself told me on Wednesday, has never been republished, updated or changed or modified. Every book that deals with hair and fiber comparison states it in the same terms. Now, the word "Match" as used in appellate decisions and used once on this page is a dangerous word because of the connotations to a layman. When you say "A perfect match," you may be talking about a male and a female who are not identical, but who fit together well. The word "Match" normally is interpreted to mean identity. That is the same in every respect. If this jury is given the idea by these niceties of language which have been deliberately injected despite your order to the contrary throughout his testimony and used by Miss Clark with some frequency and the jury gets the impression that this witness is saying this is O.J. Simpson's hair--

Mr. Bailey.

--even though he has testified under oath that he can never claim that he has identified a hair as belonging to any one individual, but has subscribed to the limitations in this FBI manual, which I presume he himself as section chief would have amended, updated or rewritten if the rules had somehow changed or the technology advanced to the point where single source identification was possible, I don't believe it's fair to have him on the one hand tell the jury, "I can't say that it came from this source," and on the other hand, "That's a match." It's confusing and it runs the risk that one or more jurors will interpret that as a positive identification when it is no such thing and never can be in hair and fiber technology. That's our position on it. We ask that you continue to prohibit the use of the word "Match" simply because the dictionary definition brings it perilously close in the minds of many and in common usage to identity, and that is wrong, unfair, improper and I believe would be error despite the language in appellate decisions which describe microscopic consistency as a match. That is not to say that the examiner who testified in those cases was allowed to use that word in his testimony. And if he was, I suggest that that was improper. The second matter, your Honor, that I would like to raise before we bring the jury in, we have some concern based on a theory spun out by Miss Clark as to how the wrapped-around hair that you pointed out when we were reviewing the boards a couple days ago on Nicole Brown's--the wrapped-around fiber on Nicole Brown's hair that was found on Goldman's shirt got that way. She speculated that there may have been something Mr. Simpson was doing as the alleged murderer had caused that to wrap around. I was concerned--I spoke to Mr. Deedrick. He speculates that something was rolling, and that's how it happened, and I would like some kind of voir dire on that, your Honor, because if he has no real idea and is simply speculating, I don't think the question should be put to him. We do know that when Miss Clark assured you he would explain how that occurred, he leaned over to Mr. Vannatter and said, "I hope." I got the impression from talking with him yesterday that he has no clear idea how it happened and is simply speculating, and I would like to preclude any such speculation if it doesn't have sufficient foundation before the answer is given and I would like your Honor to make some inquiry into that aspect of it if you will.

All right. Miss Clark, you want to address that last issue, the wrapped hair?

One second, your Honor, before she--

This just came in, your Honor. I'm sure Mr. Deedrick can authenticate it, but--from some lawyers in Anchorage, Alaska. They sent us a quote from a transcript in an Anthony case. "The strongest statement we make is the hair could have originated from that person." Now, that's the same witness. He said that before you, your Honor, a couple of times yesterday. And I don't like to see it embellished any further than it already has been and I would like to see the limitation of the word "Match" that you imposed yesterday enforced with some regularity. Thank you.

Let me assist the Court. What we have here is a fundamental lack of understanding on the part of the Defense as to apples and oranges here. The finding of a match is what permits the expert to draw the conclusion that the hair could have originated from this person's head. The two are distinct issues. The finding of a match does not mean that they are, therefore, saying it came from only this individual. And every time this expert, Mr. Deedrick, testifies to the fact that he found a match, it will then be concluded by him that the hair could have originated from Mr. Simpson. He'll never say that the match indicates identity. But unless he finds a match, he cannot even say it could have come from the head of Mr. Simpson or the head of Nicole Brown or Ronald Goldman. That's the issue. And counsel is confused between the terminology that permits the conclusion ultimately to be reached that he just read to you and the finding--and the observations that are made that lead to that conclusion. There are three possible conclusions a hair examiner can reach, and Mr. Deedrick is in complete conformity with the hicks guide that says of the three, one is that it could have come from the head of a given person. But you can not reach that conclusion until you have first found a match. And that's why we're talking apples and oranges here. And every time the word "Match" is used by Mr. Deedrick, it will be accompanied by what that means, which is, it could have come from the head of whoever. So Mr. Bailey is confused. Those terms do not--it's two separate proceedings and two separate procedures we're talking about. First you find the match, then you draw the conclusion. They are not inconsistent, they do not conflict and they do not mislead, and that's why in previous decisions in previous cases, experts have so testified. With respect to how the fiber came to be wrapped around the hair, just as Dr. Lakshmanan gave an educated hypothetical as to how things could have happened based on his--on reasonable medical certainty and his expertise, Mr. Deedrick is also an expert of nearly 20 years' experience who may hypothesize based on his expertise and experience and judgment that the fiber could have become wrapped around the hair in a couple of possible ways, one of which is the rolling effect when you brush against--when a fiber--when someone's sleeve brushes against a hair and then the fiber wraps around the hair. Another possibility--well, I don't have to get into that. But the bottom line is that within his experience and judgment, he can hypothesize giving the educated, reasonable scientific certainty as to how this could have occurred in his experience. That's his job. He's an expert. That's why we asked him to testify. If he didn't have that experience and didn't know anymore than you or I, then why call him? Again, and I do not see any possibility of misleading this jury with the use of the word "Match." The problem we've having with this expert, he's being continually having to say words that are--he's unaccustomed to saying and phrase his findings in ways that are not the norm for him, and so yes, he slips. He's not used to doing that. For 18 years, he has done something different. He comes to this court, and now all of a sudden, he can't use the term he's been using for 18 years, and that's what's causing the problem. He means no disrespect to the court. And I've been attempting to address the issue with other phraseology, but I find, having researched the literature, that it is found to be acceptable not only in the scientific community, but in the courts as well.

All right. Thank you. All right. Counsel, the problem we have here is, we have a wide range of scientific evidence that has been presented here. In Webster's Third New International Dictionary, the definition of the word "Match" is as follows: "One that is as exactly as another, one that forms an exact pair with another, an exact counterpart." So that terminology is too close to--excuse me. That terminology overstates the power of this evidence, and the Court's previous ruling will stand. All right. Let's have the jurors.