Sidebar (2)

📄 Sidebar (2) — Wednesday, May 24, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\24\SIDEBAR-2-.DOC

TRIAL

▲ Day 81 of 167

◀ Direct examination of Collin Yamauchi (part 3) Direct examination of Collin Yamauchi (part 4) ▶

Date: Wednesday, May 24, 1995 • Utterances: 16

A sidebar debate over whether DNA analyst Yamauchi could testify about 'examiner bias' — specifically, whether his awareness of media reports placing Simpson in Chicago at the time of the murders affected his analysis. Scheck argued it was irrelevant, inflammatory hearsay; Harmon countered it went to Yamauchi's state of mind. Ito overruled the objection but narrowly limited the permissible question to whether Yamauchi had ever heard the term 'examiner bias.'

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

# 2 THE COURT:

We're over at sidebar. Mr. Harmon, what is Mr. Yamauchi going to say?

# 3 MR. HARMON:

Media accounts said Mr. Simpson was in Chicago at the time, and that's why he fully expected to exclude. No examiner bias, that's for sure.

# 4 MR. SCHECK:

It's irrelevant, hearsay.

# 5 MR. HARMON:

Examiner bias. It goes to his state of mind.

# 6 MR. SCHECK:

It's a different psychological phenomenon. And that has--first of all, that's not even been alleged of this witness as of yet. So I don't think that's a factor, but it seems to me that this is improper, inflammatory hearsay. I would ask for an instruction to the jury to disregard this. And, your Honor, I had an inkling that something like this was going to happen. That's why I made the objections in the fashion that I did. With respect to calling for speculation, this part of it was just an instinct.

KEY QUOTE

# 7 MR. HARMON:

Well, you know, it's going to come screaming in on redirect. They're going to go into this examiner bias garbage. So it shows he didn't have any examiner bias, state of mind, no expectation.

KEY QUOTE

# 8 THE COURT:

I'm going to overrule the objection. But what I want you to do, Mr. Harmon, is ask him if he knows, "Have you ever heard the term, `examiner bias'?" You have to put it in that context. I'll overrule the objection. That's the only context that's relevant.

# 9 MR. SCHECK:

What is--so I can understand the Court's ruling, what's going to happen? What can he ask?

# 10 THE COURT:

His next question is, "Have you ever heard anything about `examiner bias'? Have you heard the term `examiner bias'?"

# 11 MR. COCHRAN:

What if he says no?

# 12 THE COURT:

If he says no, it's irrelevant.

KEY QUOTE

# 13 MR. HARMON:

He doesn't have it. It shows he doesn't have it because--

# 14 THE COURT:

I know, but let's proceed.

# 15 MS. CLARK:

Your Honor, it goes to more than that.

KEY QUOTE

# 16 THE COURT:

No, it doesn't now. Let's proceed.

Temperature

tense

Key Quotes (4)

Barry Scheck

It's a different psychological phenomenon. And that has--first of all, that's not even been alleged of this witness as of yet.

Scheck concedes examiner bias is a real concept but argues it hasn't been established as relevant to Yamauchi specifically — a tactical hedge to limit its introduction.

Rockne Harmon

Well, you know, it's going to come screaming in on redirect. They're going to go into this examiner bias garbage.

Harmon signals the prosecution's strategy: get ahead of a defense attack on Yamauchi's objectivity by preemptively establishing he had no bias.

Lance A. Ito

If he says no, it's irrelevant.

Ito's ruling is conditional — if Yamauchi doesn't know the term, the entire line of questioning collapses, sharply limiting its utility.

Marcia Clark

Your Honor, it goes to more than that.

Clark attempts to broaden the scope of the ruling but is immediately shut down by Ito.

Evidence (1)

Informal

Media accounts reporting OJ Simpson was in Chicago at the time of the murders — referenced as the source of Yamauchi's potential prior knowledge

discussed as context for examiner bias argument

Notable Exchanges (2)

Lance A. Ito•Marcia Clark

Clark tries to expand the scope of Ito's ruling after he overrules Scheck's objection; Ito flatly cuts her off with 'No, it doesn't now. Let's proceed.'

firm/dismissive

Lance A. Ito•Johnnie Cochran

Cochran poses a practical challenge — 'What if he says no?' — forcing Ito to acknowledge the contingent nature of his own ruling.

strategic

Credibility Attacks (1)

⚔ Gary Yamauchi

bias challenge

Defense (anticipated on cross) planned to argue Yamauchi suffered from 'examiner bias' — that pre-existing knowledge of Simpson's whereabouts unconsciously shaped his DNA analysis. Prosecution sought to preempt this by establishing Yamauchi's ignorance of the concept.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 6184 • 16 utterances

Criminal Trial

Department 103