Ladies and gentlemen, we are going to take our break for the lunch recess. Please remember all my admonitions to you. Don't discuss the case among yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, do not allow anybody to communicate with you with regard to the case. We will stand in recess until one o'clock.

Good afternoon, counsel. Back on the record in the Simpson matter. Defendant is again present before the Court with counsel, People are represented. All right. Deputy Magnera, let's have the jurors, please.

Your Honor, I just have one point. Some of the hypotheticals are--or particularly with what happened with Mr. Sims in the morning session--are beyond what the case law in this state allows. Under the authority of Hyatt versus C.R. Boat Company, 79 Cal. App. 3D. 325, in the clear law in this state is: "An expert opinion must not be based on speculative or conjectural data is well settled. An expert's assumptions of facts contrary to the proof destroys the opinion." And the reason I think that's important is, those are fairly moderate statements of the law. This Court overruled my objections where Mr. Sims was forced to assume something that was contrary to his own opinion, which really turns the whole concept--stands on its head and must feel very bizarre for him to assume something that he knows is in fact scientifically incorrect and we have these faceless reasonable scientists who might disagree. So I think it's about time that we draw the line on the hypotheticals at least until the Defense calls some of these people that might disagree, and then we can address their credibility or the basis for their opinions. But I'd really like the Court to consider the legal authority and draw the line on some of these hypotheticals when they're not even arguably based on facts that were presented. That last one forced him to assume something that was contrary to his own opinion, and we've been given no discovery that there's any other opinion by any Defense expert in this case. I'd love to see Dr. Blake's report. I know it's quite a lengthy document. But right now, this expert has been forced to pretend that he feels something might be other than what he knows it is and we've never been given any reciprocal discovery from the People that Mr. Scheck mentioned that they even have an opinion to the contrary. So I'd like to revisit that and perhaps have the Court reconsider the ruling and striking that testimony because it just stands the whole premise or the whole principal of allowing reasonable hypotheticals based on the evidence in the case and totally ignores it and just lets people pretend whatever they want.

Your Honor, I think that this witness, for example, just in the one instance that Mr. Harmon raised indicated that he thought this was a quote, unquote, tough call, and it seems to me a fair inference from the evidence when you're dealing with small dot intensity differences and just to illustrate a basic principal of how he even arrived at his conclusions and what the issues are, to ask him to assume that this is real instead of an artifact when he goes through a whole chain of inferences to come to his opinion that it's an artifact as opposed to real.

And it seems to me that's well within the scope of a reasonable hypothetical, and it seems to me that what the Prosecution likes to do is say, "Well, if our witness said that something is x and is true in our opinion, then it's absolutely impermissible to ask a hypothetical opinion to assume x isn't true." And it seems to me that that's not the law and that's not even--particularly when the hypotheticals are based upon fair inferences in the evidence and are designed to set up the contrast between what this witness says and what other witnesses could say about those facts. And I think he even agreed that reasonable experts could make different calls based on these dot intensities. He said that himself. It's not what his view is, but he agreed others might. So I think that that particular hypothetical was certainly within the range of what one could draw from fair inferences on the evidence. And in this particular area, I think it's also important to be able to put questions to the witness to illustrate the principles that are at issue here so we can understand what their opinions are and what they aren't.

Just very briefly. The problem is, when it's a hypothetical, a hypothetical is governed by the law in this state. It must be based on facts, not the evidence. If you want to ask him principles, you change the form of the question. But to force a man to say, "I'll assume that even though I don't believe it's true," as I say, he must feel like he had an out of body experience when that happened because he knows it's not true, and here the legal system is making him pretend that it is to satisfy Mr. Scheck's curiosity when there's a different form of the question. "It is well settled that it must not be based on speculative or conjectural data." He's not conjecturing. That's not the data that he relied on. I think the other point is, this tough call business, that is not what the tough call was about, and I'm--you know, you'll be pleased to hear what the tough call was about on cross exam--on redirect examination, but it doesn't relate to this issue at all. So I'd just like to resume getting in line with California authority and the evidence code and having hypotheticals based on some reasonable interpretation of the evidence and not forcing people to pretend that things are other than what they know and that there is no conflicting data. If they want to make an offer of proof--it appears that we seem to have disgorged some data from Dr. Gerdes, and it's clear that this Court has engaged in in-camera review of Defense discovery and is slowly starting to trickle out now. If they want to make an offer of proof that there is some evidence to the contrary, then, number one, we've been sandbagged since January on that material, and, number two, we'd like to have a chance to review it and we need to call a halt to the proceedings. So--but without an offer of proof, the only evidence or the only offer of proof is that that was not a 1.3, your Honor.

All right. Thank you, ladies and gentlemen. Mr. Sims. Let the record reflect we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

Mr. Gary Sims is again on the witness stand undergoing concluding cross-examination by Mr. Scheck.

Gary Sims, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:

Deputy Magnera, would you make arrangements to stay late tonight, please, with the whole staff? Thank you. Proceed.

Thank you, your Honor.

Absolutely. Good afternoon, ladies and gentlemen of the jury.

CROSS-EXAMINATION (RESUMED) BY MR. SCHECK