Sidebar: DNA evidence foundation

📄 Sidebar: DNA evidence foundation — Wednesday, May 10, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\10\SIDEBAR-DNA-EVIDENCE-FOUNDATIO.DOC

TRIAL

▲ Day 71 of 167

◀ Direct examination of Dr. Robin Cotton (afternoon, part 3) Reopening court ▶

Date: Wednesday, May 10, 1995 • Utterances: 12

Defense attorney Peter Neufeld raised a foundational objection to testimony about a blood drop collected from a boot, arguing no witness had personally testified to collecting that specific item. Judge Ito overruled the objection subject to a motion to strike, but directed the prosecution to verify the evidentiary chain. The sidebar ended with logistics discussion about a break and setting up equipment.

# 1 (The following proceedings were held at the bench:)

# 2 THE COURT:

We're over at sidebar. Mr. Neufeld, you had a foundational objection you wanted to make?

# 3 MR. NEUFELD:

Yes. Has there been any testimony in this case yet from anybody that they personally collected the drop from the bottom of the boot? I may have missed it.

KEY QUOTE

# 4 MR. CLARKE:

Greg Matheson described collection through records by Mr. Yamauchi and its packaging and shipment to Cellmark.

# 5 MR. NEUFELD:

I would object to it. I think we drew distinction--in fact, the Court drew distinction between having Matheson testify to shipping and packaging, which we said we weren't objecting to at all in not having the person come in who actually collected it to start the ball rolling, and I would object to any testimony about a boot drop unless we have somebody testify--

# 6 THE COURT:

I am going to overrule the objection at this point on a foundation basis subject to a motion to strike, but you're going to have to lay a foundation.

KEY QUOTE

# 7 MR. CLARKE:

Well, I was going to ask another question. With respect to the items that Dennis Fung collected and testified to, I believe--yeah. He testified to item no. 52, and there's--and he's testified to--I think we've put in everything in the chain that is needed. I'm wondering on what basis the Court is accepting the testimony subject to a motion to strike. I don't think there's anything missing.

# 8 THE COURT:

I'll go back and take a look at it. I am saying, right now, I'm not going to stop and look at the record right now. But maybe one of your lesser minions could do that and see if the foundation is there, and let me know. Let Mr. Neufeld know as well. And let's proceed. How long is it going to take you to wheel in this contraption?

# 9 MR. CLARKE:

I think it's here. So it's not going to take too long.

# 10 MR. NEUFELD:

During the break?

# 11 MR. CLARKE:

I don't think I can put a number of minutes on it, but not very long.

# 12 THE COURT:

I wanted to take a brief break, and then we'll go to 3:45. And the Court reporter tells me she's going to take the whole afternoon. How about a 10-minute break? Let's go.

Temperature

procedural

Key Quotes (3)

Peter Neufeld

Has there been any testimony in this case yet from anybody that they personally collected the drop from the bottom of the boot?

Pinpoints the specific chain-of-custody gap the defense is targeting — no live witness to the actual collection of this item.

Lance A. Ito

I am going to overrule the objection at this point on a foundation basis subject to a motion to strike, but you're going to have to lay a foundation.

A conditional ruling — lets testimony proceed but preserves the defense's ability to strike it if foundation remains unestablished.

Lance A. Ito

Maybe one of your lesser minions could do that and see if the foundation is there, and let me know.

Ito-like casual humor from Ito; reveals his relaxed management style while offloading the record-checking to counsel.

Evidence (2)

Item no. 52

Item collected by Dennis Fung, referenced as part of the established chain of custody

discussed

Informal

Blood drop collected from the bottom of a boot, processed by Yamauchi and shipped to Cellmark

challenged on foundation grounds

Notable Exchanges (1)

George Clarke•Lance A. Ito

Clarke pushed back on the judge's conditional ruling, arguing the foundation was already fully established through Fung's testimony on item 52. Ito declined to re-examine the record mid-proceeding and delegated the verification task to counsel.

strategic

Light Moments (1)

Lance A. Ito

Ito suggested counsel have one of their 'lesser minions' check the record for foundation, injecting casual humor into a procedural dispute.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 5999 • 12 utterances

Criminal Trial

Department 103