One other preliminary matter which I couldn't articulate because we took that rest break, and that is, your Honor, based on the testimony yesterday by Dr. Cotton--I'm sorry, could the witness just step outside for one minute, your Honor?
All right. Based on the testimony of Dr. Cotton yesterday, your Honor, I believe as a matter of foundation, there is a foundation objection to her--any testimony that she will give in the immediate future as to either a match or a statistical probability for item 78, 56, 52, 47 and 12 for the following reasons: The one thing they still have to--whether or not the Frye issues were deemed waived by the Court, the foundation issues remain, the fundamental foundation issues. And they have to demonstrate when the witness takes the stand that they use the generally accepted methods in this particular case in this particular instance, and--
She did. She testified to the methods she used yesterday, your Honor, and what she testified to was that they have three negative controls that they use in their case work. The first negative control being testing--
Okay. What you should know is that we now know from her direct testimony that one of these three negative controls wasn't used at all mainly on the substrates, that the reagent control, that is the very initial control that is used, failed with respect to the various item numbers that I have just given, and that the amplification blank, which is the only remaining control, occurs further on down the line, such that if the initial control fails, that trumps any subsequent control, so consequently you have a failure of the controls or an absence of the control. And you have the laboratory in this particular case not using the generally accepted methods to arrive at a result. And so on purely foundational grounds we would object to the introduction of any evidence as to those particular items.
Yes. I think the testimony has already demonstrated the witness described the procedures used, they were correct procedures in her opinion, and in fact as I think the testimony will--already has demonstrated, that complies with the Court's order dated several weeks ago about what was necessary in terms of the foundation and the use of correct procedures. The witness has described her opinion and the Court has heard no contrary evidence up to this point.
All right. The objection is overruled subject to a motion to strike at a later time. All right. Let's have the jury.
KEY QUOTEyou have a failure of the controls or an absence of the control. And you have the laboratory in this particular case not using the generally accepted methods to arrive at a result.
I was here. I heard it.
The objection is overruled subject to a motion to strike at a later time.