All right. Back on the record in the Simpson matter. All the parties are again present. All right. Just so the record is clear, counsel, Mr. Neufeld has asked for some additional time to review the report from Dr. Weir; is that correct, Bruce Weir?
All right. And our agreement is that if the Prosecution concludes, that they will be allowed to reopen and it will be made clear to the jury that they are being allowed to reopen and the reason is that the Defense needed some additional time to consider the report.
In fact, but given the Court's earlier ruling, they are compelled to reopen, actually, so that they can express those frequencies.
Two items I wanted to bring up to the Court. One we have already mentioned. I will deal with that second. First, it is our intention to bring out from Dr. Cotton population frequency data. That includes not only those markers tested in her laboratory, PCR only that I'm referring to, DQ-Alpha and polymarker, but also to incorporate D1S80 results obtained by the Department of Justice. And the reason for that is to avoid having to bring witnesses back and forth in this somewhat combined nature of testing in this case and I wanted to bring that up to the Court before I laid a foundation of her knowledge of that marker and so forth.
D1S80 and the idea is to avoid calling Dr. Cotton again as a witness following the Department of Justice's results. I think it is perfectly appropriate to do so. We know the evidence is going to show these results, so I don't think there is any problem of foundation; it is more order.
Well, your Honor, there is no--there has not been any results yet about D1S80 testing. There has been no foundation for the D1S80 test results yet and the normal foundation. There is no reason why they can't have Gary Sims, once he puts in his data, then looks at the Cellmark numbers and compound it or multiplies it with his own data--one moment.
And if it is not going to be Gary Sims, it is going to be Renee Montgomery also they put on their witness list as someone who will be testifying from DOJ. I mean, there is really no reason to do it in this instance and it seems like if you are really going to balance the interests here, to have them put in numbers on something the jury hasn't even heard about yet is highly improper. And Robin Cotton doesn't even have to come back. They can have them come back.
I don't think it is unusual, but it is because of the order of these witnesses, but--
But we are talking about here tests that haven't even been presented to the jury, tests that the jury only vaguely expects, since they see DOJ and they have seen the board and they know that there will be some testing from DOJ. But to include testing results that have not even been presented, even in a basic form yet, to the jury, without even understanding what the test is, that is--and given the significance and breadth of the testing, I am having a problem with that, Mr. Clarke.
KEY QUOTEWell, if Mr. Neufeld is going to stipulate as to Mr. Sims' ability to make these calculations, then that may be a different matter and we may agree to that. He has just said, which is totally contrary, to what, for instance, his attack was at least by way of an objection to Dr. Cotton's qualifications. Now, I think it is our right to be able to present this from the witness or witnesses we choose. Mr. Sims will provide calculations that involve testing that doesn't involve the same item also tested by Cellmark, so I think it is our right to be able to present that through that witness and I think under these circumstances it is clear this evidence is coming in. The objection to the admissibility, for instance, of D1S80 results, was waived, so we know this evidence is coming in, and I think just simply as a matter of the Court's discretion it can allow this witness to describe that, in other words, in terms of frequency data, because we know it is going to be admissible as a result of the Defendant's waiver of his initial motion attacking this evidence.
Even with the initial motion, your Honor, there is still the normal foundation requirements and there has been absolutely no witness testifying to any of the testing methods, that they were the same generally accepted methods used in this particular case, that they were actually done and what the results were. Robin Cotton will be testifying completely on the basis of hearsay to the typing as to the results and as to the frequencies. That is three different major issues which the Court is going to have to make a preliminary decision on, forgetting Frye, forgetting all these other issues. I think it is not fair. They will be able to call their witness, whoever their witness is they want who lays a proper foundation, has the credentials and can testify to frequency and can take the frequencies articulated by Robin Cotton and multiply them or add them or do whatever she intends to do them to compound them, but not to do it this way.
I think this can be offered as a hypothetical. Talk about a good basis for some of the questions that have been asked, I mean, this couldn't be any clearer.
I'm going to sustain the objection. I think that this is so broad and the foundational basis that needs to be laid for yet another PCR test and for the appropriate procedures and all of that, to allow in results before any of that is done, I think the Court, in its discretion with regards to the order of proof, will sustain the objection.
Just with regard to this process, it will put us in the position of to having bring Dr. Cotton back another time, and I think based on all of this evidence and the fact that we have it available, it is certainly in good faith that we legally have the right to do so, and I think under these circumstances the Court should.
Robin Cotton will be testifying completely on the basis of hearsay to the typing as to the results and as to the frequencies. That is three different major issues which the Court is going to have to make a preliminary decision on.
But we are talking about here tests that haven't even been presented to the jury, tests that the jury only vaguely expects... without even understanding what the test is, that is--and given the significance and breadth of the testing, I am having a problem with that, Mr. Clarke.
Depends on which spin you want to put on it.
All right. Noted. Denied.