I have a question that I'm fearful night open a door, so I want to explain what the issues are and I'm going to seek a preliminary ruling from the Court to see whether I should go into this area or not. There were--I think there were two--there was a specimen taken from no. 11, the wire, at Rockingham.
There was some specimen swatches that were labeled no. 11 specimen and then there were swatches taken from the wire that were labeled control. When Mr. Sims examined these, both of them appear to be grayish whitish swatches; however, he performed a--what they call an otolidine test which is another form of the presumptive blood test, and when he performed that presumptive blood test he got a positive finding for the swatch that was in the control bindle, but he got a negative finding for the swatch that was in the specimen bindle. The question that I want to ask him is simply was there--when he was examining the sample, the specimens, bindles from LAPD, was there an item where he had concerns that the control sample had been put in the specimen bindle and the specimen had been put in the control bindle. Now, there were no other tests that were done or could be done on these swatches to confirm whether or not it was blood.
Now, if I ask him those questions and he answers, yes, I had a concern and my concern was in no. 11 because the information I had was that there was--it was a concern that they had mixed up putting the specimen in the specimen bindle and the control in the--the specimen in the control bindle and vice versa, is that going to open the door to allowing them to ask or even having the witness say that they performed a presumptive test on the swatch indicating it was blood, even though there is no confirmatory tests on this blood.
Well, I don't think it will open a door, it will blow it off the hinges and knock off the dead bolt, but other than that, other than being beyond the scope of direct examination, it clearly allows us to go back to the positive phenolphthalein on the sink drain, that in spite of all the other door openings that they did before you refused to let us get into, so beyond the scope and blowing the door off the hinges are two things to keep in mind, your Honor.
Certainly not beyond the scope on the issues of controls, but--and the ability to use them. My concern really was for the Court to make a ruling. I certainly expected Mr. Harmon to say it would open the door. My concern is whether the Court believes it would open the door. I would propose to ask the witness just the question did you have reason to believe that there was a mispackaging of control specimens with respect to one item and which one was it? No. 11?
All right. The problem, though, is first of all, that that opens up I think legitimately going into what was done--the Prosecution would be entitled to explain what actual testing was done on that particular swatch and what the results were, which I think we all agree are not really relevant to the circumstances of this particular case, so looking at the totality of the case here, the probative value of what you are offering and the consumption of the time that would be taken up by the Prosecution then explaining what this is, I'm going to sustain the objection under 352. Also notice and give you caution that if you go into it, that then we are going to get into what the presumptive testing was, not necessarily the bathroom stain--I mean the bedroom--bathroom drain, but certainly on the wire itself.
The other thing, just to--please don't hold me completely to this, but just to in terms--I knew you mentioned undue consumption of time. I think I have a pretty firm grasp on how long this witness is going to take me in fear of his vacation. I will be with him this morning and I think I will be with him probably Monday morning, maybe not the whole morning, but Monday morning. That is my best estimate.
when he performed that presumptive blood test he got a positive finding for the swatch that was in the control bindle, but he got a negative finding for the swatch that was in the specimen bindle
it will blow it off the hinges and knock off the dead bolt
the probative value of what you are offering and the consumption of the time that would be taken up by the Prosecution then explaining what this is, I'm going to sustain the objection under 352