Sidebar: D1S80 foundation

📄 Sidebar: D1S80 foundation — Wednesday, May 17, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\17\SIDEBAR-D1S80-FOUNDATION.DOC

TRIAL

▲ Day 76 of 167

◀ Direct examination of Gary Sims (morning, part 1) Direct examination of Gary Sims (morning, part 2) ▶

Date: Wednesday, May 17, 1995 • Utterances: 19

Defense attorney Barry Scheck objects at sidebar that the prosecution has not laid an adequate foundation for admitting D1S80 DNA results through the current witness (Gary Sims), arguing that the analyst who actually performed the D1S80 tests is Renee Montgomery, not Sims. Judge Ito overrules the objection subject to a motion to strike, contingent on Montgomery testifying later. Scheck additionally requests a jury instruction clarifying the result is admitted 'subject to connection,' warning that D1S80 results visually resemble RFLP results but rely on different scientific principles, creating a risk of juror confusion and spillover prejudice.

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

# 2 THE COURT:

We are over at the side bar. Mr. Scheck.

# 3 MR. SCHECK:

Yes. There has been no foundation whatsoever laid for D1S80 results with respect to the technology, with respect to its foundation, with respect in particular to this witness' expertise and knowledge for reporting these results. The testimony has been that he is the lead analyst in the case, but the person who performed the D1S80 tests and has the requisite specialized knowledge is Miss Montgomery. So there has been no explanation and no foundation laid as to the D1S80 system whatsoever through this witness or any other witness, so at this time it seems to me the wrong witness and there is a lack of foundation and I object to that result coming in.

KEY QUOTE

# 4 THE COURT:

Mr. Harmon, do you think you have an adequate foundation?

# 5 MR. HARMON:

Yes, I do. I mean, we could call in the guys that stripped the membranes, too, and spend the next couple of months doing that. If you recall, Robin Cotton didn't actually do any of this.

KEY QUOTE

# 6 THE COURT:

No, no, I'm not worried about the comparison. Have you laid a foundation for Mr. Sims to testify to the D1S80?

# 7 MR. HARMON:

Yes, I have. Robin Cotton has explained the technology. We even discussed DQ-Alpha with him. I could spend half a day discussing DQ-Alpha generically with him if that is what Mr. Scheck wants.

# 8 THE COURT:

That is not the objection. The objection is to the D1S80.

# 9 MR. HARMON:

D1S80 is in the same category. We have explained it sufficiently for him to describe the results. I will have Renee testify. I mean, if that is the problem, if they want to hear from Renee--

# 10 THE COURT:

Is Miss Montgomery going to testify?

# 11 MR. HARMON:

Absolutely, absolutely.

# 12 THE COURT:

I will overrule the objection subject to a motion to strike.

# 13 MR. HARMON:

No question.

# 14 MR. SCHECK:

That be made clear that--there is--at the present time there is no foundation and my concern--

# 15 THE COURT:

I--I understand.

# 16 MR. SCHECK:

But what I'm asking for is an instruction to the jury that the D1S80 result is being taken subject to connection through the testimony of another witness because right now there is no foundation. And what I'm fearful of, if you take a look at the D1S80--

# 17 THE COURT:

Uh-huh.

# 18 MR. SCHECK:

--results, they look like RFLP results in the sense that they have banding--you know, they have marker lanes and bands on them, but it is a different system with different principles. If the Court recalls, at the time that this witness testified at the griffin hearing, this laboratory had not even reported out a D1S80 result, as of August, so it seems to me that there is a 352 problem in terms of conflating (sic) the two systems just by their appearances and the foundation of the two systems is different. And I am afraid by letting it in in this fashion is a chance of spill-over prejudice. So what I would ask the Court to do is instruct the jury that the D1S80 result is being taken now subject to connection, explain what the subject to connection is to be connected up with another witness; not this witness.

KEY QUOTE

# 19 THE COURT:

All right. The objection is overruled subject to a motion to strike.

KEY QUOTE

Temperature

procedural

Key Quotes (4)

Barry Scheck

There has been no foundation whatsoever laid for D1S80 results with respect to the technology, with respect to its foundation, with respect in particular to this witness' expertise and knowledge for reporting these results.

Core objection: Scheck argues the wrong witness is on the stand to authenticate D1S80 results, a technically precise foundational challenge.

Rockne Harmon

We could call in the guys that stripped the membranes, too, and spend the next couple of months doing that.

Dismissive reductio ad absurdum response to Scheck's foundation argument, revealing prosecution's frustration with granular defense challenges to DNA methodology.

Barry Scheck

They look like RFLP results in the sense that they have banding--you know, they have marker lanes and bands on them, but it is a different system with different principles... I am afraid by letting it in in this fashion is a chance of spill-over prejudice.

Scheck identifies a specific cognitive risk: jurors may equate D1S80 with RFLP due to visual similarity, importing credibility from one system to another without proper foundation.

Lance A. Ito

The objection is overruled subject to a motion to strike.

Court allows the evidence conditionally, preserving Scheck's ability to move to strike if Montgomery never testifies to connect up the foundation.

Evidence (2)

Informal

D1S80 DNA test results — a PCR-based typing system distinct from RFLP, performed by analyst Renee Montgomery

objected to for lack of foundation; conditionally admitted subject to connection

Informal

RFLP DNA results — referenced for comparison to explain visual similarity to D1S80 and risk of juror confusion

discussed

Notable Exchanges (2)

Barry Scheck•Rockne Harmon•Lance A. Ito

Ito cuts through Harmon's general foundation argument to pinpoint the specific issue: not the comparison methodology, but Sims' qualification to testify to D1S80 specifically. This forces Harmon to commit that Montgomery will testify.

strategic

Barry Scheck•Lance A. Ito

Scheck presses beyond the overruling to request a jury instruction about 'subject to connection,' raising a 352 prejudice argument about the visual similarity between D1S80 and RFLP banding patterns. Ito listens but does not grant the additional instruction.

persistent/tactical

Credibility Attacks (1)

⚔ Gary Sims

lack of foundation / wrong witness

Scheck argues Sims lacks the requisite specialized knowledge to report D1S80 results because Renee Montgomery, not Sims, actually performed those tests; also notes the lab had not even reported out a D1S80 result as of August at the time of Sims' Griffin hearing testimony.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 6087 • 19 utterances

Criminal Trial

Department 103