All right. Thank you, counsel.

Well, Dr. Cotton, just with respect to--I sort of forgot where I was, but--

I thought you were trying to establish the minimum thresholds for RFLP testing.

Okay. Let me just ask you whether or not looking at a particular chart would refresh your recollection as to how many nanograms of DNA is in a milliliter of blood.

May I approach the witness just for the purpose of refreshing her recollection?

Do you recall having seen a chart like that in the nature of--

Yes, I do.

All right. Why don't you go ahead and show it to her.

Thank you.

It's on page 28?

Yes.

I'm sorry. I didn't hear the page, your Honor.

28.

The--

All right. The only issue is, does that refresh your recollection as to these items, doctor?

Yes.

All right. Mr. Neufeld.

Can I get out my copy so I can keep looking at it?

Sure. Go right ahead.

What page is the chart on again?

28.

28.

28.

I'm ready.

Is that your own copy of the book entitled "DNA technology in forensic science"?

Yeah. It looks just like yours.

Okay. And would it be fair to say--I think you said in fact that there are certain portions of this book that you agree with and there are certain portions of the book you disagree with.

That's right.

And as to the portions of the book you agree with, would it be fair to say that you have considered and relied upon those portions at least in helping to develop your own opinions on forensic DNA profiling?

The portions I agree with, yes.

Okay. And now--so if I bring up a certain portion, I'm going to ask you at a certain point whether it's something you agree with or disagree with so we can eliminate it immediately. All right, Dr. Cotton?

That would be fine.

Good. All right. According to--by the way, do you agree with the numbers reflected in table 1-1?

They seem to fit with what seems to be about right, yeah.

Okay. And would it be correct then, Dr. Cotton, in concluding there are approximately 20,000 to 40,000 nanograms of DNA in a milliliter of blood?

This--I don't know the answer to that question. This chart is talking about a stain of a square millimeter, and how that would relate to a given volume, I'm not sure.

No. I'm not looking at the stain portions of the table, Dr. Cotton. I'm asking you about the very first line, which simply says, "blood 20,000 to 40,000 nanograms per milliliter." do you see that?

Oh, yes, I do.

Okay. So put "stains" out of your mind for a second, all right, and let's just focus on liquid blood. Is that a correct statement more or less; that a milliliter of liquid blood has approximately 20,000 to 40,000 nanograms of DNA in it?

Excuse me, your Honor. Objection at this point. It's hearsay.

Overruled.

Well, that's what's listed in the chart and that seems to be--let me just think about it for one second.

That's probably the high end. I would maybe I would be much more willing to agree with the 20,000. The 40,000 seems like a lot.

Okay. So let's assume that it's 20,000. Now, if that's how much is in a milliliter, now, a microliter is what in relation to a milliliter, Dr. Cotton?

One one-thousandths.

And a--let me just show you an exhibit which is Defendant's exhibit 1132. And this is already in evidence. Dr. Cotton, I have just one question from this board. If there is 20 nanograms approximately in a microliter, would you agree that a microliter of blood is the approximate size of this item that I'm pointing to (Indicating)? And if you can't see it well, please come down off the stand.

A microliter is a volume, and that looks like the head of a pin.

Have you ever heard the expression, Dr. Cotton, that a microliter of blood is approximately the same size as the head of a pin?

Well, it depends on what kind of pin you have.

Okay. Granted. Have you ever heard that expression anyway?

Uh, I don't have any idea.

Would you agree that in layman's terms, that a microliter of blood is a minuscule amount?

I certainly would.

And I think you said that it was your belief, Dr. Cotton, that there was approximately 25 nanograms of DNA in the lane that produced the autorad for item 52; is that correct?

Yes. I--20--somewhere--I said 25 and I--that this is just a very rough estimate on my part, but certainly it's going to be between 25 and 50 or 60.

Well--

It's not going to be--it's certainly not more than that.

Well, a little bit earlier, did you say however that it was your estimate that it was about 25 nanograms?

Yes.

Okay. Now, if 20 nanograms of DNA could appear in a minuscule amount of blood reflected in--

1132.

Thank you very much, your Honor.

Save you the trip.

--in Defendant's 1132, if the Bundy drops, which in my hypothetical were completely degraded, were then subjected to that minuscule amount of blood or slightly more, would that be enough blood to produce 25 nanograms of DNA?

If it was liquid.

It would be enough, right?

Yes.

And when you say "liquid," it could--you mean wet?

Yes.

All right. Thank you. And--

Well, excuse me. Objection, your Honor.

Sustained.

I'm sorry for the remark.

The jury is to disregard "thank you's" and "no, thank you's."

I apologize for it.

It's all right. It's all right. I'm sure they know you didn't mean it in any bad way. But it is question and answer. Let's proceed.

Now, in my hypothetical then, Dr. Cotton, if the Bundy--assuming that the Bundy drops did not come from Mr. Simpson, but were completely degraded in the process of collection and handling and then were brought into contact with a minuscule amount of blood such as reflected on Defendant's exhibit which is in front of you--1132? 1132--it could produce the banding pattern that you see in item 52? Isn't that correct, in the hypothetical?

Objection. Objection. Improper hypothetical.

Overruled.

In the hypothetical and with my addition that it be about a microliter of liquid blood, the answer is yes.

Thank you. All right. In fact, Dr. Cotton, isn't it true that in your very laboratory, in the CACLD proficiency test that you described on direct examination, on one occasion, you had a very degraded sample brought into contact with another sample of DNA and you only saw the banding pattern of the second sample of DNA? Is that true?

Are you referring to the first CACLD?

I am.

The way you stated it isn't exactly correct.

All right. Let me rephrase the question, Dr. Cotton. Isn't it a fact that in that CACLD experiment--I'm sorry--proficiency test where one sample cross-contaminated another sample, you got a false positive result?

Well, in the--when it was added to the wrong tube, it was added to a tube where the DNA had totally degraded; is that correct?

I don't actually know that. We don't know if that DNA was degraded or whether there simply just wasn't enough to see just below the level of detection.

Okay. Well, let's assume either hypothetical. Either there wasn't enough DNA left in that sample to detect the pattern or there wasn't enough DNA left in that sample due to degradation to detect the pattern. The false positive was created, was it not, by then inadvertently or incorrectly mixing with that DNA from a second source?

Yes.

And by doing so, your laboratory generated what we just referred to as a false positive; isn't that right?

Yes, it is.

And in the example that I just gave you about what happened in your own laboratory, Dr. Cotton, had that not been a proficiency test--well, I'm sorry. Let me step back a second. The way you learned that Cellmark had in fact created a false positive is because the people from the California Association of Crime Laboratory Directors that ran the test wrote to you and told you that you got a false positive; isn't that right?

That's right.

In other words, you did not know you had a false positive when you did the testing yourselves?

That's right.

And had it not been a proficiency test, Dr. Cotton, you would not have found out that you had gotten a false positive; isn't that correct?

Objection. Calls for speculation. Irrelevant.

Sustained. Speculation.

If instead of it being a proficiency test, Dr. Cotton, a false positive result would have falsely implicated somebody, wouldn't it?

Same objection.

Sustained. It's argumentative as well.

Now, given the example that I gave you about the Bundy drops being degraded and then coming into contact with blood from the Rockingham samples--oh, by the way, one other matter on that. There has been testimony that the reference sample of Mr. Simpson was also in the evidence processing room at the same time that these Bundy stains and Rockingham stains were there. I want you to--

Excuse me. Objection. Misstates the evidence. Also improper as part of the hypothetical.

Overruled.

Okay. If in fact that reference sample of fresh blood from Mr. Simpson--I'm sorry. By the way, one other fact. There's also been testimony that the reference samples of Nicole Brown Simpson and the reference sample of Ronald Goldman were not in the evidence processing room on June 14th on that same day. If blood from the fresh reference sample of Mr. Simpson came into contact with those swatches from the Bundy drops and given my hypothetical they were completely degraded, could that cross-contamination also create the result that you saw in item 52?

Objection. Again, assumes facts not in evidence.

Overruled.

Of course it could.

Okay. Now, and if that type of degradation and cross-contamination occurred, Dr. Cotton, your laboratory would not be able to uncover it given your testing protocol; isn't that right?

In fact, I believe you said on direct examination that your controls are designed to make sure or to minimize the likelihood of cross-contamination inside your own laboratory; isn't that right?

That's right.

But you cannot be held accountable for what types of cross-contamination occurred on a sample before it reaches your laboratory; isn't that right?

That's right. That's of course out of our control.

And even if this sample that you got was divided up when it went to you and given not just to you, Cellmark, but given to two or three other laboratories, it wouldn't make a difference in their ability to uncover this earlier cross-contamination, would it, given my hypothetical?

Objection. Vague. Also assumes facts not in evidence.

Sustained. Rephrase the question.

Would it be fair to say, Dr. Cotton, that since your laboratory's protocol would not be able to uncover the fact that the samples had been degraded, then cross-contaminated, that this would also be true, given your knowledge of how other laboratories functioned, it would also be true if the sample was divided in half and half was sent to you and half was sent to a third laboratory?

Hold on.

I'm sorry. I'm sorry.

Proceed.

Same objection. Same grounds.

Sustained.

And would you agree, Dr. Cotton--it was brought out on direct examination that when some of these samples arrived at your laboratory, two Defense experts, Dr. Edward Blake and Dr. Henry Lee, were present at the laboratory; is that right?

That's right. They weren't present when the samples arrived, but they were present when the samples were opened up and--and the cuttings were made.

And even if Dr. Edward Blake stood and remained at your laboratory during the entire process of testing in this case, had the type of cross-contamination that I described in my hypothetical actually occurred, isn't it a fact that he would not have been able to recognize it either?

Objection. Irrelevant.

Sustained. Also calls for speculation as to what Dr. Blake can recognize.

Well, based on what you said, Dr. Cotton, isn't it true that there is no control in your laboratory that you use that would be able to discover or disclose that the original Bundy drops had been contaminated with Mr. Simpson's blood? Isn't that a fact?

Yes. Of course.

And so--

That's the third time we've asked that question.

And if you used--I believe on your chart, you said that for an item 52 you looked at five RFLPs; is that right?

Yes.

Well, you wouldn't be able to discover that type of cross-contamination if you used 15 or 20 RFLPs, would you?

Of course not.

One moment.

Your Honor, we can actually get rid of this. Can I just--

Mr. Scheck, which board is this?

This is 259.

Thank you.

May I approach the board?

Certainly.

And, Dr. Cotton, if you can't see it, please step down a little bit. But given my hypothetical, Dr. Cotton, about degradation, the original Bundy samples and then cross-contamination either through the Rockingham swatches, which were Mr. Simpson's blood, or from the vial of fresh blood belonging to Mr. Simpson, given that hypothetical, if that happened, you would still get the same kind of frequency that you got for item 47; isn't that correct? That wouldn't change the frequencies that you get?

It wouldn't change anything.

And given my hypothetical, even if all that occurred, Dr. Cotton, you'd still get this astronomical frequency that you have here for no. 52, Bundy drop, of 170 million, wouldn't you?

Yes.

And the same would apply to every single one of those Bundy drops; isn't that correct?

If your hypothetical is suggesting that each one of those Bundy drops had fit in with your hypothetical and got contaminated in the way you suggested with enough DNA, yes.

For every single one of the Bundy drops, correct?

Of course.

Thank you. You can have a seat.

And in fact, Dr. Cotton, there's even less DNA in the Bundy drops, 47, 48, 49 and 50 than there was observed in 52, correct?

Yes.

So it would take even less cross-contaminating DNA to affect the PCR results in those samples than it would take to affect the RFLP result in item 52?

Yes.

In fact, Dr. Cotton, how much DNA do you need to do your PCR test, your DQ-Alpha test?

Depending on how degraded the sample is. If the sample's in very good condition, a half a nanogram--it doesn't necessarily have any meaning to anybody, but it's not very much. A half a nanogram will work. If the sample is degraded, then you'll require more, and the more degraded it is, the more DNA you'll require until you reach the point where you can't get a result.

Well, does the users kit suggest that two nanograms of DNA be used for doing DQ-Alpha typing?

Well, that's what they suggest be used, but that's only one amount of the large possibility of amounts that would work.

And would you agree, Dr. Cotton, that unlike 20 nanograms, which might be the size of a pinhead, that two nanograms is barely, if at all, detectable to the naked eye?

I don't know if it's detectable. It's obviously just one 10th of 20.

Thank you. Sorry.

Nothing to apologize for. Proceed.

Now, again going back to these numbers that you testified to at the conclusion of the direct examination, Dr. Cotton, I would like to ask you a few questions about what the number is and what the number isn't. Would you agree, Dr. Cotton, that the frequency you put up there--

One second, your Honor.

Would you agree, Dr. Cotton, that the numbers you put up, for instance, for item 52 of 1 and 170 million, does not reflect the probability of Mr. Simpson's guilt or innocence?

Of course it doesn't.

And would you agree, Dr. Cotton, that that number is not a probability that someone other than Mr. Simpson is in fact the source of a particular stain?

I'm not sure I understand exactly what you're asking me.

Well, it's not a source probability, is it, Dr. Cotton?

Objection. Vague.

Overruled. Do you understand the question?

No. It's just a probability of any other unrelated--it's the probability that another person in a specific racial group would have that same pattern. It's not--doesn't--isn't related to the source of the sample at all.

And so it wouldn't be a probability that Mr. Simpson was the person who bled at Bundy, right?

That's right.

Okay. And would you agree that the number tells us nothing at all about the probability of false or misleading matches due to errors in the collection or handling of samples?

Objection. Vague.

Overruled.

The number doesn't say anything about the areas that you just mentioned.

And would you agree, Dr. Cotton, that the number tells--tells us or tells the jury nothing about the probability of false or misleading matches due to evidence tampering?

Same objection.

Overruled.

Also irrelevant.

Overruled.

It--it doesn't say anything about anything except the likelihood of another random person having that pattern.

So if in fact, Dr. Cotton, pursuant to my hypothetical, the matches were due to the combined effects of total degradation followed by cross-contamination with Mr. Simpson's blood, then those numbers would be irrelevant, wouldn't they?

They still mean the same thing regardless of your hypothetical. They--I don't know how to answer your question other than that.

They wouldn't have the same value for the jury--

Wait. Wait. Let her finish answering the question.

Oh, I'm sorry.

They mean what they mean. They don't mean anything else.

And the number tells us nothing about the probability that the swatches were mixed up at the Los Angeles Police Department as well, does it?

Objection. Assumes facts not in evidence.

Sustained.

Well, you've testified I believe that the number, for instance, 1 in--1 in 170 million to 1 in 1.2 billion for the item 52 is your opinion of the estimate about how rare a particular DNA profile is in the population, correct?

That's right.

Now, hypothetically--again, I'd like you to assume I'd like you to just follow one more hypothetical, Dr. Cotton. I'd like you--well, let's--actually - and there's one other frequency I want to ask you about, and it has to do with the frequency you reported for the blood on the socks, and you said that the frequency of that particular pattern I believe ranges anywhere from 1 in 6.8 billion to 1 in 530 billion; is that right?

I can look it up, but I'm willing to take your word for it.

Okay. And that number of 1 in 530 billion is merely your opinion of the estimate of how rare the particular DNA profile is that you observed on the bloodstain from the socks; is that right?

The number isn't an opinion. It's just our--it's just the mathematical estimation of the frequency of that banding pattern in a particular racial group.

Well, it's your estimate.

It's our laboratory's estimate.

Thank you. Hypothetically, if we assume the socks have been examined for the presence of blood twice, once by a criminalist on the day he collected the socks at Mr. Simpson's residence, and then a second time on June 29th by other criminalists in the LAPD laboratory and that examination on both occasions looked for and found no blood--

I'm sorry. Objection, your Honor. Argumentative in its beginning. Also misstates the evidence.

Sustained.

Well, assume the socks had been examined twice for the presence of blood and that no blood was observed. Now, assume that the socks had been tampered with--

Same objection, your Honor.

Sustained. Sustained.

May we have a sidebar, please?

Evidence doesn't support that, counsel.

One second.

Assume that these socks after they were collected had been examined on June 29th for the presence of blood and no blood was readily observed, and assume furthermore that the socks had been tampered with and the blood of Nicole Brown Simpson's--

Same objection, your Honor. I'm sorry.

Sustained.

Your Honor--

Sustained.

Your Honor, can I put forth a good faith basis?

Some later time. Not right now. Proceed. We'll take it up at the first break. Proceed to something else.

Well, would it be fair to say, Dr. Cotton, that there is no test in your laboratory that can answer the question when or how the smear of blood got on the socks?

And if the blood had been put on the socks at some time subsequent to June 12th or June 13th, you would still give a number of 1 in 530 billion for the presence of the DNA pattern on those socks; is that right?

Objection. Assumes facts not in evidence.

Overruled.

Yes.

Now, would you agree that in analyzing DNA typing, there are various factors which can affect the strength or the value of that evidence?

Objection. Vague.

Sustained.

Well, if the frequency of a matching genotype was 1, okay, in other words, everybody has it, then the evidence wouldn't have much value; isn't that right?

It would have zero value.

Okay. If the frequency was such that it was 1 in 5, it might have a little more value than 1 in 1; isn't that right?

It would definitely have more value.

And if instead, the frequency was 1 in a billion, it would have substantially higher value; isn't that right?

Yes.

Now, would you also agree, however, that as laboratory errors become more likely in a particular laboratory, the value of that DNA evidence decreases?

Objection. Irrelevant.

Sustained.

Well, would you agree, Dr. Cotton, that as laboratory error is more common in a particular laboratory, the statistical value of the DNA evidence decreases?

That's vague.

Same objection. Same grounds.

Well--

MR. NEUFELD: One moment, (Discussion held off the record between Defense counsel.)

I believe you testified, Dr. Cotton, that you know of no scientific test that can tell the age of blood drops; is that right?

That's right.

And so one possible explanation for blood drops is that those blood drops could have been deposited--

One second.

One possibility is that those five Bundy drops could be old blood drops?

Yes.

It could have been deposited sometime other than on the night of June 12th?

I suppose that's possible.

Okay. And of course, you have no idea what the probability is for that being true or not. Is that a fair statement?

Absolutely none.

Okay. Put a question mark. And it would be also possible, given the hypothetical, that an error in crime scene collection in packaging could result the same result that you have on your other chart; isn't that right?

Excuse me, your Honor. I'm going to object. It's argumentative at this point.

Sustained. It's vague. What type of mistake are we talking about?

Would you agree that if cross-contamination occurred when the various samples from Bundy and Rockingham were unpackaged and blood from the Rockingham swatches came into contact with the Bundy swatches, that that could produce the results that you have in your DNA testing?

Same objection.

Well, I'll allow it, but we've asked this question already.

I understand, but it's all part of the foundation, your Honor.

I understand. I'll allow the case, but I'm indicating to you we've heard this question and answer already.

I'll give you the same answer as before. If the amount of contamination was sufficient to produce the DNA results from one sample to the next, then of course that's possible.

And again, you have no idea what the probability is that that occurred?

Same objection, your Honor.

Overruled.

Of course I don't.

And with respect to cross-contamination, given the hypothetical, had the Bundy swatches come into contact the following day on the 14th with the fresh blood from Mr. Simpson's reference sample, that too could produce the results that you've described a moment ago on your chart; isn't that correct?

Sorry, your Honor. Objection, improper hypothetical.

Sustained. Sustained.

Well, didn't you say a moment ago that had the Bundy drops--I'm sorry--had the swatches from the Bundy drops come into contact with the fresh blood from Mr. Simpson's reference sample--

Counsel, I sustained the objection to that hypothetical, if you recollect.

Your Honor, may we approach very, briefly because I think you then changed it when I laid the foundation.

Proceed. Proceed. Sustained.

There has been testimony in this case, Dr. Cotton, that on the--on June 14th, the Bundy swatches were processed in the same room as the fresh reference blood sample from Mr. O.J. Simpson, and there has been testimony in this case that the reference samples both from Mr. Goldman and from Nicole Brown Simpson were not processed in that room on that day. Now, assuming that while that situation existed, that Mr. Simpson's sample was in the evidence processing unit at the same time that the Bundy swatches were processed and there was contact between the fresh blood of Mr. Simpson and the Bundy swatches, could that also produce the results that you achieved in your DNA typing?

Objection. Improper hypothetical, misstates the evidence and assumes facts not in evidence.

All right. Overruled.

Yes.

So this is cross-contamination. I'm going to just--so I can distinguish these two, I'm going to call the first type of cross-contamination cross-contamination with the Rockingham swatches.

I'm sorry, your Honor. Is this going to be an exhibit marked or--

Yes.

Then I--

We've got a problem with this one.

That was going to be my objection.

All right. It's becoming argumentative, counsel, not demonstrative.

Well, one moment.

Well, your Honor, counsel is already writing on it again. I think the Court--

I'm just writing on--

Ladies and gentlemen of the jury, would you step back in the jury room, please?