Yes, your Honor. I wanted to try to get to the bottom of the qualifications issue because I had asked for a sidebar. It's the kind of thing that one likes to resolve as a lawyer outside the presence of the jury so that it goes smoothly. We really have two arguments with respect to Mr. Sims and the statistics. The first one is that, we don't believe that taking a one-week course with Dr. Weir on population genetics constitutes sufficient expertise in that area to offer these statistics. And the issue here is that an expert, of course, can rely upon other data that's generally relied upon by experts in the field as a basis for expert testimony. No problem with that in terms of the database. The issue is, you first have to be an expert in that field in order to rely upon the data.
So our first argument is that he is certainly an expert in criminalistics and in the process of forensic DNA typing, but he doesn't have sufficient expertise in the issue of--on the area of population genetics to offer these statistics. And frankly, whatever expertise, and it's conceivably greater, he had in training and conventional serology just is--is not really relevant to this determination as the fierce litigation over statistics and DNA typing and then the actual research council report itself attests to that fact. The second issue, to anticipate where we're going, is that if he is qualified for the limited purposes of offering frequencies from the databases using the systems at issue, that we have received from the Department of Justice in discovery in terms of our specific requests for the basis of their statistical estimates with respect to RFLP, they indicate that they rely upon the FBI database as the way that they get frequencies. With respect to DQ-Alpha, it's Dr.--the worldwide database compiled by Dr. Blake and Helmeth and others. And then with respect to D1S80, we have a letter from the Department of Justice indicating--attaching an article from the FBI, which includes a database based on individuals from which the FBI calculated D1S80 frequencies. So if he's going to testify to frequencies, it seems to us that just as a pure discovery matter, he should be limited to the sources they indicated they were going to be using as their databases. To have him then look at everybody else's database or other articles and start opining on that I think would be way beyond the scope. Finally, Mr. Harmon just produced another board that I'm going to object to with respect to concordance of Cellmark and DOJ results for different item numbers. And all that they list here are the various different probes and systems. And I think that this is plainly cumulative, argumentative and it's--under 352, it's misleading. We're striving in the use of these boards and in the rulings of the Court to try to indicate to the jury what the statistical significance of the evidence is and what it isn't, and here it seems to me it's just not adding anything. In fact, it's going to be confusing to issue--the issue to say, well, we have different genetic systems here and there was a concordance and then there's an implication about multiplying those and what you can determine from that and probabilities, and it seems to me that, my lord, it's more than covered by the board they already have where all of these results are there. And so here, instead of having the genetic marker system and the statistics, you just have the genetic marker system without any further elaboration. It seems to me cumulative, argumentative and more prejudicial than probative under 352. So those are my arguments. A, he's not qualified to rely on this data. So he shouldn't give the numbers. B, they should be limited to the databases they told us they were going to use in discovery and, C, my objection to the board.
Well, I'm somewhat shocked because I know in chambers two days ago, Mr. Scheck--and unfortunately, this wasn't recorded--it's my recollection said, "Oh, Gary can do all this. There's no problem. We're not going to object to that. " and I understand things change from day to day, but I hope People's word doesn't change day to day without some prior notice to sort of expedite things. I haven't finished trying to qualify him yet. So I appreciate what the objections are, but we'll take as long as it takes to convince you that he's qualified, and it won't take as long as it will take to convince Mr. Scheck that he's qualified because we'll never get to that point.
One does not need to be an expert in the field of population genetics to express an opinion about the statistical significance of a match in DNA typing. Prior to this date, eight other judges in this state--and I can't vouch for those other judges, but Mr. Sims is batting a thousand on his ability to qualify and express terms--the statistical significance of the results that he's produced. And I'm sure when the Court considers his qualifications and reads the sections concerning expert testimony, which I just happen to have here, the Court will realize that an expert is merely someone who has a specialized knowledge that will assist the jury in understanding the evidence to be presented. I--of course, I'm paraphrasing it. In that context and once the Court considers that he is qualified, then he may provide opinion testimony. And the opinion testimony must be of a type that reasonably may be relied upon by an expert in forming an opinion upon which the subject to which his testimony relates.
All right. Is Mr. Scheck correct in his assumption that the various databases on which Mr. Sims bases his opinions are those that Mr. Scheck mentioned?
Let me double-check with Mr. Sims. He's partially correct, but that's still--I don't think that addresses what Mr. Scheck clearly has in mind, and that is a discussion that we had a little while ago about how inappropriate it would be for Robin Cotton to multiply her PCR results from the same piece of evidence--
Well, no. He hasn't addressed that. And I'm sure if I qualify Mr. Sims and that's the type of material that he may reasonably rely on, he won't object when we multiply the PCR markers of Cellmark by the PCR markers of DOJ. So let me just make one last check with Mr. Sims as far as the statistics that relate to the test results that he produced. But we should address the cross lab multiplication because that's coming right after that, your Honor. I mean they're intermixed within the stains, and so now is the time--now is the time to flush that out.
We have provided discovery to the Defense for all of the data that they have relied on. And, you know, one of the primary ones is Dr. Blake's world study, which by the way, is not published. It's in a nice bound cover, but it's not published. It's disseminated. So at least as far as the results by the Department of Justice lab, we have provided discovery to the Defense for all of the data that we intend to rely on in producing the frequency estimates for their test results. That doesn't include the Cellmark results.
You know, it's under the topic of redundancy, but it relates to the question--it's illustrative--if I had it before the break, I would have put it up or having shown it to Mr. Scheck, it just illustrates graphically the answer to the question that I asked him, you know, shortly after the autorad show. I don't think it's redundant because it specifically shows which of those items do address the improbability or impossibility of lab error. So I don't agree that it's redundant in that context. It shows the redundance in scientific context.
I'll try to do it in one, your Honor. Does this exhibit demonstrate the redundancy of duplicate testing by separate labs which minimizes the possibility of laboratory error.
All right. I'm going to sustain the objection under a 352 basis. All of this information is on the results board. It's redundant. I don't like the word "concordance" in this context. I think it's argumentative. You can use that during argument. It's a nice exhibit. I would. But for these purposes, I'm going to sustain the objection. All right.
Your Honor, could I just answer factually just to see if I'm clear on this? But, number one, maybe Mr. Sims can enlighten us, but in terms of his eight court appearances, by my count, one of them would be the Griffen hearing where no statistics were testified to. And I'm not altogether sure that he can tell us whether statistics were admitted in the other court appearances. I think some of them might have even been cases where ultimately the PCR cases were not admitted. Moffett? Moffett?
You didn't testify or-- but in any event, I'm not sure statistics were in all of them. So inquiry could be made with respect to the PCR statistics. The other thing is that I take it that Mr. Harmon is answering yes to the Court's question did I accurately state the databases that are going to be relied upon. I mean, that's all I'm trying to ascertain.
And then finally, is there anything else that Mr. Harmon--before the Court rules--that can be made by way of an offer of proof outside the hearing of the jury with respect to his qualifications so that I can deal with it now and we don't have to go through it all in front of the jury and I don't have to stand up and object. That's the purpose of this motion in limine.
Well, the problem is, the plaintiff is entitled to establish the qualifications of their witness before the final fact.
I'm not arguing with that. I'm just saying, if he can make an offer of proof as to what else there is that qualifies Mr. Sims, then I can make my objection, and if the Court is going to rule against me and it's preserved, then I don't have to stand up like a pop-in jay and jump up and all the rest of it. That's the point of doing this now.
Just my offer of proof is, he's eminently qualified, and I suggest that you rule on that and then he won't have to jump up and down.
All right. Thank you, counsel. Luckily, the appellate courts and the legislature give wide discretion to the trial court in ruling upon whether or not somebody qualifies as an expert witness. Here, Mr. Sims has many years of technical experience in the field of forensic sciences--science and is familiar with and actually has hands-on experience with the actual testing technique itself, and I'm convinced also that the databases that have been suggested are reliable for these purposes. I'm also convinced that the amount of training that he has had gives him an amount of expertise in the area that is beyond that of the order layperson. So I find him qualified for these purposes. All right. And, Mr. Scheck, if you want, at the point in time when the opinion is offered, you can make your foundational objection for the record if you want.
Actually, what I would prefer to do is just make it now and ask for it to continue. The only other thing to be raised is, there is--saying that he's qualified to recite what the frequencies would be if you plug in the FBI data to the alleles and the DQ-Alpha and the D1S80 is one thing. To then, as Mr. Harmon has indicated he intends to do, have this witness testify that it is appropriate and he can multiply the DQ-Alpha frequencies and the poly-marker frequencies against the D1S80 frequencies, I think that is beyond the expertise of this witness.
Sure. I mean we need to throw Cellmark into the picture too because that's the next extension to that. It's the same product rule. It's the same statistical manipulation. He has testified to the product rule in the PCR cases. I'm not sure--the distinction that Mr. Scheck tried to make is interesting, but totally irrelevant. It matters little that the evidence was excluded as the result of some admissibility hearing. What matters is, that's a different issue than whether he was qualified to present and express--
No. We're beyond that issue. The issue is, is Mr. Sims qualified to not only give frequencies of the testing that he did, but also combine the results with the testing that Cellmark did and then come up with an additional product rule.
How do I miss that? And I think that's very helpful because that gets to section 804 of the evidence code. Opinion--I mean if you combine 801, what the opinion testimony of the expert may be based on, 801(B) with 804, where an opinion where it's appropriate can be based on the hearsay statement of another expert as long as it's described that way, that's the rule of law in California. So there are two steps to it. Mr. Sims, if I'm ever allowed to get him back on the stand, will explain that it is appropriate for him to rely on data. He's already expressed it in the conventional serology area where--this is unpublished data.
I mean, the Blake stuff is unpublished. It's in a nice little cover, but it's not published. It's the compilation of things that are derived from other areas, and it's in exactly the same category as the data that was provided by Robin Cotton to Mr. Sims. Same category, same standing. So the real question I think that you have to address is contained in 801 and 804; is Mr. Sims telling you the truth when he tells you these are the kinds of things that experts can rely on.
Your Honor, a foundational matter. The--it's one thing to rule, as the Court has, that it's okay for Mr. Sims to say that within the various markers in the FBI database, the different RFLP markers, there's a sufficient scientific basis to assume independence and multiply those--multiply a cross loci and multiply within a locus. Again, with respect to DQ-Alpha, there is published data by Helmeth, et al, and Dr. Blake just added some more. But again, that's just dealing with the independence of the markers within the DQ-Alpha system and across each of those--across those various alleles and similarly with respect to D1S80, which is one publication.
The issue as to whether or not for these systems, one can assume that each of them is independent of the other, particularly when some of these markers are on the same chromosomes as each other between those systems I think is clearly beyond this witness' expertise. So it seems to me that in terms of the Court's discretion, to allow them this change multiplication at this point in time through this witness when you have Dr. Weir coming in terms of whether or not this can be done at all is an extremely serious foundational issue. I think it's just carrying this way too far and presents a real problem. So I think it's--in terms of the Court's previous ruling--it's one thing to say that he can plug in the numbers and compute the frequencies within the systems. It's quite another to say that he has sufficient expertise in terms of population genetics or assumptions of independence to multiply these marker systems against each other.
Final comment. Now that I see--I thought it was whether he couldn't rely on the data. Now that I see clearly what Mr. Scheck's objection is, the answer is very simple. It's the same product rule, number one. Number two, the FBI article, which Mr. Sims has in his briefcase--Mr. Scheck has trivialized that it's just one article, how many do you need--demonstrates the--if that's not something that they waived when they waived their hearing way back in January, and I contend that it is. The FBI article, which Mr. Sims can be glad to demonstrate, shows the statistical independence which then justifies the use of the same old product rule to multiply these frequencies. So I thought we were going on whether he could rely on the data, not on whether they were significantly independent, which I believe is something they waived five months ago. So if you'd like to see the article or hear testimony from Mr. Sims, if that's the only issue, the article clearly addresses it. There's nothing else in the scientific horizon to the contrary.
When do you anticipate getting to this particular issue, multiplying--attempting to multiply the DOJ results with the Cellmark results?
Well, the FBI article demonstrates the independence of the D1S80 data-- I mean, let's focus on the question. And if the question is, has anybody demonstrated the statistical independence of DQ-Alpha data from D1S80 data from poly-marker data, which are the only markers that we want to multiply, yes, the answer is, the FBI article demonstrates that statistical independence that justifies the use of the product rule.
While we are waiting for Mr. Sims to retrieve that article, Miss Clark and Mr. Cochran or Mr. Shapiro, have we reviewed those reports?
All right. Counsel, this may only be five pages, but it's the kind of thing you can't read in two minutes, at least not me. Let's proceed with what you have, Mr. Harmon, and you can present the--we will stop at the point where you want to combine the results with Cellmark's results, and we'll quit there for the day, because I'll need to read this. And, Mr. Scheck, if you have any competing articles or any additional articles in the area, I would like to see them.
No, no. You've read I trust a lot that disputes it previously. The issue is, this article is the first that's emerged in the literature even reporting on this question. So it sets the cutting edge. I mean D1S80--you know, we didn't have a hearing, but D1S80 is not exactly a frequent character, as a frequent marker system in proceedings anywhere. So that's our problem here. I think that--
All right. No. Mr. Scheck, all I'm doing is inviting you to provide me with any other information you have.
Well, the Court's done extensive reading I trust already, you know, with respect to the fundamentals of this. All I'm saying is that this article just came out. Undoubtedly, there are general responses, as you know, to this and to the size of the database and the rest of it, but it's too new for there even to be published responses at this stage.
All right. All right. Mr. Harmon, we're clear, we'll get up to that point where you want to combine the poly-markers and the other Cellmark DQ-Alpha results and we'll quit there.
Just, it would appear that the--the socks may be that point. And I may even try to skip that. I know we want to take advantage of the time. So I'll do the best I can to work around since that's a discreet board.
taking a one-week course with Dr. Weir on population genetics constitutes sufficient expertise in that area to offer these statistics
Mr. Sims is batting a thousand on his ability to qualify and express terms--the statistical significance of the results that he's produced
I find him qualified for these purposes.
Although better this than the six-week DNA hearing.