Sidebar (3)

📄 Sidebar (3) — Tuesday, May 23, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\23\SIDEBAR-3-.DOC

TRIAL

▲ Day 80 of 167

◀ Cross-examination of Renee Montgomery (part 5) Cross-examination of Renee Montgomery (part 6) ▶

Date: Tuesday, May 23, 1995 • Utterances: 32

Attorneys argue at sidebar over a defense demonstrative — an overlay or printout used to suggest a DNA band is absent from a gel image. The prosecution contends the visual distorts the original evidence and misleads the jury by implying something is 'not there' when a faint band is actually visible. Judge Ito examines the materials himself and ultimately defers ruling, suggesting a 352 objection on redirect.

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

# 2 THE COURT:

All right. We are over at the side bar.

# 3 MR. HARMON:

The problem that exists is when you are using systems to show that something is not there when it really is and you allow something that takes away data, you are really misleading the jury.

# 4 THE COURT:

Show me what is--what is not where.

# 5 MR. COCHRAN:

What is not where.

# 6 MR. HARMON:

Well, the whole point of this is to question whether or not there is anything there.

# 7 THE COURT:

Okay.

# 8 MR. HARMON:

Somehow Howard put the arrows because he is looking at this.

# 9 MR. BLASIER:

No, because 24 is a marker lane.

# 10 MR. HARMON:

How does he know?

# 11 MR. BLASIER:

I told him. This is just to help them locate what to look for on here.

# 12 MR. HARMON:

So you are saying that there is something faint here?

# 13 MR. HARMON:

Sure.

# 14 THE COURT:

Okay. Right there, (Indicating).

# 15 MR. HARMON:

Right.

# 16 THE COURT:

All right. Have you got that turned around right? Why don't you superimpose it.

# 17 MR. HARMON:

You are right.

# 18 THE COURT:

Turn it around.

# 19 MR. HARMON:

I'm getting dizzy here.

KEY QUOTE

# 20 (Brief pause.)

# 21 MR. HARMON:

Ours is the photo from Blake's.

# 22 THE COURT:

This is 297, 297.

# 23 MR. HARMON:

I guess you really can't because they are different sizes, but it is right in here, (Indicating).

# 24 MR. HARMON:

It is okay to just illustrate something that is there, but when you are trying to demonstrate that something is not there and you have the system that--

# 25 THE COURT:

I don't know. I see something faint there, (Indicating).

KEY QUOTE

# 26 MS. CLARK:

Your Honor, the problem is really if you lay this over the top of this, they don't match up and this printout is such a distortion of what the original is, you have the original marked for evidence, why in the world would you allow a distortion like that? It is kind of like the People have a picture of a Defendant killing a victim and they took it and blew it up as big as they could because it gets so fuzzy it was indistinct. What is the value?

# 27 THE COURT:

I assume on redirect examination you are going to go over there and I assume when they are offered into evidence you will make a 352 objection.

# 28 MR. HARMON:

We just didn't want to waste a lot of time.

# 29 THE COURT:

Okay, okay.

# 30 (Discussion held off the record.)

# 31 (Brief pause.)

# 32 (Pages 29044 through 29044, volume 152A, transcribed and sealed under separate cover.)

Temperature

tense

Key Quotes (4)

Rockne Harmon

when you are using systems to show that something is not there when it really is and you allow something that takes away data, you are really misleading the jury.

Core prosecution objection — the demonstrative actively obscures faint DNA evidence rather than clarifying it.

Marcia Clark

It is kind of like the People have a picture of a Defendant killing a victim and they took it and blew it up as big as they could because it gets so fuzzy it was indistinct. What is the value?

Sharp analogy illustrating the distortion argument; frames the defense demonstrative as deliberately degrading image quality.

Lance A. Ito

I don't know. I see something faint there, (Indicating).

The judge himself can detect the disputed band, undermining the defense's 'nothing is there' narrative.

Rockne Harmon

I'm getting dizzy here.

Rare moment of levity during a dense technical dispute over overlay alignment.

Evidence (2)

297

DNA gel photograph (autoradiograph), referenced as the original marked for evidence

discussed, physically examined by judge at bench

Informal

Photo from 'Blake's' — a printout or overlay used by defense to argue a band is absent; described as a different size and distortion of the original

challenged by prosecution as misleading demonstrative

Notable Exchanges (3)

Rockne Harmon•Robert Blasier

Harmon challenges how arrows were added to the demonstrative; Blasier explains he instructed the analyst because lane 24 is a marker lane and the arrows help locate what to look for.

adversarial

Lance A. Ito•Rockne Harmon

Judge and Harmon physically handle the exhibits, attempt to superimpose them, and discover they are different sizes and cannot be aligned — judge tells Harmon to turn it around.

procedural

Marcia Clark•Lance A. Ito

Clark presses for exclusion of the distorted printout; Ito signals he will let it proceed subject to a 352 objection on redirect rather than ruling now.

strategic

Light Moments (1)

Rockne Harmon

Harmon, struggling to physically orient overlapping exhibit photos at the bench, says 'I'm getting dizzy here.'

Witness Demeanor

(Brief pause.)

(Discussion held off the record.)

(Brief pause.)

Objections

1 objections (0 sustained, 0 overruled)

Proceeding 6154 • 32 utterances

Criminal Trial

Department 103