Jury excused — demonstration board — May 11, 1995 (Day 72)

📄 Jury excused — demonstration board — Thursday, May 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\11\JURY-EXCUSED-DEMONSTRATION-BOA.DOC

TRIAL

▲ Day 72 of 167

◀ Cross-examination of Dr. Robin Cotton (part 3) Jury instructions ▶

Jury excused — demonstration board

Date: Thursday, May 11, 1995 • Utterances: 72

With the jury excluded, Judge Ito and defense attorney Peter Neufeld negotiate the wording on a demonstrative chart being used during Dr. Robin Cotton's cross-examination. Ito repeatedly overrules Neufeld's attempts to include argumentative language like 'tampering' and 'deliberate contamination,' ultimately limiting him to the neutral word 'contamination.' The exchange is largely procedural but punctuated by moments of humor as Neufeld keeps trying to sneak in more loaded language.

# 1 (The following proceedings were held in open court, out of the presence of the jury:)

# 2 THE COURT:

Thank you, ladies and gentlemen. Please be seated. The jury has withdrawn from the courtroom. Mr. Neufeld, the problem we have is the same problem that caused your objection to the Prosecution's boards. Now, this contains argument. It's not a demonstration of the evidence. It's not exposition of the evidence. It's argument.

# 3 MR. NEUFELD:

No. I'm sorry. If I said I was going to have it marked, I meant marked for identification. It's only for demonstrative purposes. I'm not going to introduce it into evidence, and I apologize for--if I--

# 4 THE COURT:

No. That's not the way we do it. If it is an exhibit, something displayed to the jury, it cannot contain argument.

# 5 MR. NEUFELD:

Your Honor, I was only--

# 6 THE COURT:

The only thing--the only thing you can do--I understand exactly what it is you're doing here. What you can do is list the possibilities. You can list the locations; Bundy, Rockingham, ECU or ECR. You can list those things. But to then argue contamination, to argue--to put in things that aren't necessarily in evidence, that's argument. We don't know that there's contamination. Do you understand my point?

# 7 MR. NEUFELD:

Yeah. But, your Honor, the initial questions that I asked the witness were permissible and admissible questions and her answers saying that another explanation would be old blood drops is also admissible. If I simply limit myself on this diagram to writing--

# 8 THE COURT:

No. The only thing you can do is put, for example, "Bundy, old blood drops, period," without argument.

# 9 MR. NEUFELD:

Fine.

# 10 THE COURT:

All right?

# 11 MR. NEUFELD:

And then on the second one, what I would put is "Rockingham swatches, EPU," and nothing more. And the third one I would do--

# 12 THE COURT:

As in processing--I thought it was evidence processing room?

# 13 MR. NEUFELD:

I'm sorry. I'll put "evidence processing room," okay. And the third one would be--

# 14 THE COURT:

Is there a possibility we could prepare these before we do this too?

# 15 MR. NEUFELD:

Yes. If I can have two minutes, I'll prepare it, and then we can be heard and I'll save time.

# 16 THE COURT:

Do it.

# 17 MR. CLARKE:

Your Honor, in addition to that, I think once the Court sustained its objection, Mr. Neufeld kept writing, which was extremely improper.

# 18 THE COURT:

We'll get to that.

# 19 MR. COCHRAN:

There's another issue you said we could take up during the break.

# 20 THE COURT:

Well, let's--no. Let's spend the two minutes to finish with this thought.

# 21 MR. COCHRAN:

All right. We're not going to take a break then?

# 22 THE COURT:

Not until 3:30. Actually 3:15. But the court reporter is sitting here working. So--

# 23 (Brief pause.)

# 24 THE COURT:

Dr. Cotton, if you want to step down and stretch your legs for a moment, be my guest.

# 25 DR. COTTON:

Thank you very much.

# 26 THE COURT:

But don't go away.

# 27 DR. COTTON:

Okay.

# 28 (Brief pause.)

# 29 THE COURT:

Counsel, don't you think "tampering" is an argument rather than--

# 30 MR. NEUFELD:

All I'm asking is--

# 31 THE COURT:

--rather than the word "contamination"?

# 32 MR. NEUFELD:

Well, your Honor, all I'm trying to elicit from this witness is that she cannot give a probability. I'm not even saying there was tampering. I'm simply saying that these--you permitted the question before that this is not a probability concerning whether or not there was tampering. I just want to put on this chart the same statement that she basically already said verbally. That's all it is.

# 33 MR. CLARKE:

May I see the chart at some point, your Honor?

# 34 MR. NEUFELD:

Oh, you can take a look at it right now.

# 35 MR. SCHECK:

Why don't you put it on the--

# 36 MR. CLARKE:

I would certainly concur with the Court, the word "tampering" is extraordinarily argumentative. And the problem with this whole chart is the fact that there's been no evidence that the type of contamination or contact that the Defense--

# 37 THE COURT:

Well, counsel, you know that I have to allow hypothetical questions if there is a possibility, a possibility that those facts could be established.

# 38 MR. NEUFELD:

Your Honor--

# 39 THE COURT:

But I agree "tampering" is not an appropriate word for this type of exhibit. You can put in "contamination" because contamination can be either benign or malevolent.

# 40 MR. NEUFELD:

Fine. Then what I would like to do, I would change the word "tampering" to simply "deliberate contamination," which--

# 41 (Laughter.)

# 42 MR. NEUFELD:

Well, no, no, no. The reason--the reason the reason, your Honor, is, I believe that we have--

# 43 THE COURT:

I admire your hutzpah. "Contamination," counsel. Without--it can be benign, it can be malevolent. We don't know. It could be nonexistent.

# 44 MR. NEUFELD:

Can I put down "malevolent contamination," use your word? No. No. Quite seriously, your Honor, I think--

# 45 THE COURT:

And I'm equally serious. You can have "contamination." That's what you get. All right?

# 46 MR. NEUFELD:

All right. Then what I will do, I will change "tampering" to "other forms of contamination."

# 47 THE COURT:

"Contamination."

# 48 MR. NEUFELD:

Okay.

# 49 THE COURT:

That pretty much covers it.

# 50 MR. NEUFELD:

Well, I've described two types already. I would just like to be able to say as "other contamination."

# 51 THE COURT:

Mr. Neufeld, for the fifth time, "contamination." I'll give you some scotch tape and a scissor.

# 52 MR. NEUFELD:

I can redo this again in one minute.

# 53 (Brief pause.)

# 54 MR. NEUFELD:

Your Honor, also, to save time, what I was going to do--I can do it now--is what I did in the first one, was a question mark. I was going to put in question marks until I got to the "coincidental match," at which point I was going to insert the frequency estimate as given by the witness. I can do it in front of the jury or I can do it now and just have her--

# 55 THE COURT:

No. If all you're going to do is repeat what's there, that's fine. The question marks are fine.

# 56 MR. NEUFELD:

I'm sorry?

# 57 THE COURT:

The question marks are fine.

# 58 MR. NEUFELD:

Okay.

# 59 THE COURT:

Let's proceed.

# 60 MR. NEUFELD:

One moment, your Honor.

# 61 (Brief pause.)

# 62 MR. NEUFELD:

Art is not my forte, your Honor. I'm sorry.

KEY QUOTE

# 63 THE COURT:

It's the sincerity that counts. Mr. Neufeld. All right.

# 64 THE COURT:

Let's go.

# 65 MR. CLARKE:

Could I see it, your Honor?

# 66 THE COURT:

Sure.

# 67 MR. NEUFELD:

Let me put it up.

# 68 THE COURT:

Madam reporter, do you need to take a break? Are you ready to go through to 4:30?

# 69 THE COURT REPORTER:

Yes, your Honor.

# 70 MR. NEUFELD:

I'm going to need a break at some point. I can't go through to 4:30. That's all I'm saying.

# 71 THE COURT:

Well, we might as well take our break now. All right. Let's take 10.

# 72 (Recess.)

Temperature

light

Key Quotes (4)

Lance A. Ito

Mr. Neufeld, for the fifth time, 'contamination.' I'll give you some scotch tape and a scissor.

Captures Ito's exasperation at Neufeld's repeated attempts to use more argumentative language on the chart.

Lance A. Ito

I admire your hutzpah. 'Contamination,' counsel. Without--it can be benign, it can be malevolent. We don't know. It could be nonexistent.

Ito's ruling captures the legal standard: the word must be neutral enough to encompass all possibilities, not presuppose guilt.

Peter Neufeld

Can I put down 'malevolent contamination,' use your word? No. No. Quite seriously, your Honor, I think--

Neufeld's persistent attempts to reintroduce argumentative framing, even borrowing Ito's own vocabulary to do so, drew laughter in court.

Peter Neufeld

Art is not my forte, your Honor. I'm sorry.

Light moment as Neufeld apologizes for the quality of his handwritten chart revision.

Evidence (1)

Informal

Demonstrative chart listing possible locations and explanations for DNA evidence (Bundy, Rockingham, evidence processing room), with columns for contamination, coincidental match, and frequency estimates

disputed and revised per court direction

Notable Exchanges (2)

Peter Neufeld•Lance A. Ito

Neufeld repeatedly attempts to use 'tampering,' then 'deliberate contamination,' then 'malevolent contamination,' then 'other forms of contamination' on his chart; Ito shuts down each iteration and insists on the single word 'contamination.'

strategic/comedic

George Clarke•Lance A. Ito

Clarke flags that Neufeld continued writing on the board after the court sustained an objection, calling it 'extremely improper.' Ito defers it with 'We'll get to that.'

prosecutorial complaint

Light Moments (3)

Peter Neufeld

The courtroom laughs when Neufeld, after being told 'tampering' is too argumentative, immediately proposes 'deliberate contamination' as an alternative.

Lance A. Ito

Ito says 'I admire your hutzpah' in response to Neufeld's persistent semantic maneuvering.

Lance A. Ito

Neufeld apologizes that 'art is not my forte' after struggling to rewrite the chart by hand; Ito responds 'It's the sincerity that counts.'

Witness Demeanor

(Brief pause.) — Dr. Cotton steps down to stretch her legs at Ito's invitation during the sidebar

Objections

None recorded

Proceeding 6038 • 72 utterances

Criminal Trial

Department 103