Your Honor, I do have the original photographs. I will display the original photograph on the elmo at the same time.
Those objections as to 1, 2 and 3 will be overruled pending Court accepting the assurance that that is what will be done since that has the danger of misleading the jury. As to items 13, 14, 15, 16, the People's objection, as I understand it, Mr. Goldberg, is that the blocks do not line up and there is some problem with that in your mind; is that correct?
And Mr. Blasier, your indication is that you are going to question the witness and bring out the fact that that is due to the bowing of the plate?
All right. Subject to that representation then, the objections are overruled. No. 18, Mr. Goldberg, my understanding of your objection is that it is to the narrative, that when a BA degrades bands disappear from the top down, that you object to the narrative portion but not to the actual block diagram itself; is that correct?
That's correct, your Honor. And it is our position on many of these issues where there is a narrative, if I may be heard further--I don't know whether the Court wanted me to--
Well, why don't we use each individual--as each individual diagram or presentation is different.
That is what I was discussing, but as to the narrative, so I don't have to repeat myself when we get to other objections that I am making on the same grounds, the way that we presented our block diagrams and demonstrative exhibits is they don't have any commentary other than a neutral statement of what happened or what is depicted in the photograph. That cannot be argued by either side as being anything other than a neutral statement that does not favor one side or the other. Or in the case of our block diagram, we didn't have any commentary at all and we allowed the witness to simply use it for the purposes of illustrating and explaining his testimony. That is a proper usage of exhibits such as block diagrams that are being used for demonstrative and illustrative purposes, and we don't object to the Defense trying to use those exhibits for the purpose of illustrating what would otherwise be difficult testimony to understand, just as we did. But when they are putting an interpretative slant on it they like, and that is consistent with the arguments that eventually they want to make to the jury, that we strenuously object to. Neither party should be allowed to do that with respect to any diagram or exhibit that we create, and particularly where that narrative slant is inconsistent with the witness' testimony is going to be testifying. Now, if they were to call their own expert to the witness stand, I think we could still object on the first grounds, that they should not be able to have a narrative slant on the exhibit itself. But as to the second ground, at least they would have an expert that was going to lay a proper foundation for that comment, but they don't even have that here because Mr. Matheson does not agree with the commentary that is contained in some of these narrations.
Their chart that has so many inconclusives they have argued over and over again are misleading and wrong, the Court ruled that this is a matter weight. This is not argumentative. This is from the scientific literature. The fact that Mr. Matheson may not be aware of it is the very point of the cross-examination. There is no slant at all. This is what the scientific literature says and it is appropriate and I can certainly ask that question.
KEY QUOTEThe scientific literature I submitted yesterday, primarily the Sensabaugh article.
All right. As to no. 22, the People's objection is likewise to the narrative; is that correct?
Again, those are not argumentative statements; they are observations from the block diagrams. They are taken from the scientific literature. I don't think they are going to disagree, for instance, with 22 that that b1 is a degraded BA from that--that is by definition what the chart says. These are not argumentative. They are based on the scientific literature. Mr. Matheson is going to be free to say I don't agree or I disagree or there is other literature that he hasn't told us about and that is part of cross-examination.
To respond to this, and I won't repeat the arguments that I already made, but just one additional observation. First of all, it is a selected view and a condensed view and oversimplification of some scientific literature that Mr. Matheson is going to distinguish, but even if it were a direct quote from a scientific literature, in other words, even if he said according to Mr. Wraxall and Emes in their article they said this and then directly quoted, that should not come in in chart form. They could cross-examine the expert on that under evidence code section 721, but for parties to start introducing chunks of articles, even direct quotes that we like and that they like, has never been allowed in our courts of law. And the Court will recall that there was one instance where the Prosecution marked a page out of Barry Fisher's book. I don't think that that page is ever going to be able to go before the jury. It was marked, although a quote from it was read into evidence, because we just don't submit articles and quotations to juries to go back with them into the jury room when they are deliberating on a case. So even if it were a direct quote, which it is not, I would still object to it.
All right. Thank you, counsel. All right. As to item 18, the objection to the narrative is sustained. As to no. 22, it is overruled. As to 23, the objection to the narrative as argument is sustained.
Your Honor, I'm sorry. On 24 this was the same narrative--I'm sorry--23 had the same narrative as 22 with the addition. Is it just the addition you want me to take out?
Yes. That is not to say it won't come in at some later point in time. All right. As to the next series of photographs, the Prosecution has no objection to no. 1, 2, 3, 4, 5. No. 6 the Prosecution objects to the narrative as being inaccurate.
Well, Mr. Matheson confirmed, and I will go into with him, the first entry into the lab means that is the first place the evidence is taken. Obviously it goes through a door somewhere. I will be happy to go into that with him. The rest of it, it is not inaccurate. He can explain that.
No, we did object to 9, 10 and 12 on the ground that they use this phrase "sensitive case lockers" which we felt was not a designation that this witness was going to testify to.
Again that what is we have been told by the head of the lab, that that area of the lab is for that. That is why we have it in there.
No. 12 for the record, we lumped with no. 9 and 10 which the Court I think overruled.
We objected to those on the grounds that it says "lowest level of security in the lab" which is just flat out wrong and also argumentative.
Of the three areas depicted in the chart, that is the lowest level of security in the lab. Mr. Matheson confirmed that. The same thing with 14. The information as far as I know is accurate.
The objection as to 13 and 14 as to the narrative is sustained as argument. All right. No. 1, swatches, series of charts
There are--we basically objected to the three charts--excuse me--four charts all on the same grounds. No. 1, that this witness--it goes beyond the scope of the direct. We did not ask him anything about this.
They are free to call witnesses or recall Mr. Matheson if they can lay a foundation for this kind of testimony. No. 2, it is speculation because there are a variety of different ways of concluding how many--how many swatches could be created. And no. 3, it is argumentative. I mean, it is basically just presenting the argument that the Defense can and will make later on when they have an opportunity to address the jury at the end of this case.
Mr. Matheson confirmed that you can make a hundred swatches from a milliliter of blood. You can make a lot more.
All right. The objections as to 1, 2 and 3 are overruled. I will sustain the objection as to no. 4 for the reason that there is no standardized size of swatch. There is no standard as far as I've heard that indicates that there is a standardized amount that is considered to be a successful swatch, et cetera, et cetera, so the objection will be sustained.
Him or anybody else, but the state of evidence right now is that there is no foundation for it.
Does that go for all of the other things that were taken out if the witness says what was in the chart?
All right. No. The next matter, the chart regarding the blood vial. The objection at this point is the dispute over how much Mr. Peratis is going to say was collected in the blood vial, correct?
Well, there are a couple of objections. There were actually four of them. One was that the amounts that were removed by Mr. Yamauchi constituting one milliliter was an approximate and in his motors it says an approximate, so it misstates, if they are trying to get it off business records, what is in the business records. No. 2, the amount that was removed--that says on the chart was removed by Mr. Matheson, .75 milliliters, was in fact removed by Mr. Yamauchi, and again he indicated approximately .75 milliliters, so it misstates. No. 3, it does not at all contain any reference to the testing that Mr. Matheson did on ABO and electrophoresis I think on the 29th of July where he did not record in the records how much he used, but testified to that on direct examination. No. 4, it does not correctly state the testimony of Mr. Peratis who has not even testified yet, but it does not conform to any offer of proof with respect to what he has said. It is argumentative and it also is beyond the scope of the direct, because although some of these issues we went into with Mr. Matheson and they could get into--
He can challenge that. This is from their records. These are withdrawals that are in their records. If we have got it wrong, he can point it out. This is our best information. This is the things they wrote down. And we will do the amount taken initially subject to connection. I can make a good faith statement to the Court that there has been under oath testimony that there was eight milliliters taken. They have been allowed to testify to test results with no foundation. I'm offering this to connect up later or as a hypothetical.
But how do we get around the comment from Mr. Goldberg that these things are actually mislabeled as to who did what?
I don't believe they are. We can go into that and that is a proper thing to go into on cross-examination. We don't believe they are mislabeled.
All right. I will allow the use of the chart after the appropriate questions have been asked to conform with what is there, otherwise I will--I'm sustaining temporarily the objection on the basis of factual accuracy. If you can link it up, if you can establish from Mr. Matheson's testimony the things that you have indicated, then I will allow its use, but you will need to lay a foundation for it before you can trot it out. All right. Let me know when you want to bring it out and we will see if you have the foundation. All right. As to the PCR charts, nanogram--
KEY QUOTEYour Honor, point of clarification. I can't use the chart at all until he testifies to all the amounts?
No, not all the amounts, but the amounts--you will need to have some more foundation before that is coming in, based upon the factual dispute that I've heard. That is the point. So let me know when you want to use it.
Yes. We would object on the ground that they are beyond the scope of the direct of this witness and also this witness cannot lay a foundation for all of the information contained in those charts. He knows--in other words, he knows the number of cycles, for example, 32 cycles, but he doesn't know the information as to how many fragments would be multiplied from the top of the chain to the bottom.
All right. Do you have any--any factual disagreement or dispute with what is there? Appears to be accurate?
I understand that and I understand that he has not testified to any DNA evidence. I understand the scope problem.
But what I'm saying, your Honor, is that if Mr. Matheson couldn't provide me with those answers when he looked at the chart and I do not know of my own independent knowledge whether some of the items on the chart are in fact correct.
It was my understanding he is in charge of this lab. He has testified about contamination problems. He has testified about procedures. I intend to ask him questions about--he has testified about contamination. I'm going to ask him about those kind of questions and they are directly relevant. The PCR process and how that can result in contamination is directly relevant to what he testified about.
All right. I am going to tentatively overrule the objection. I'm a little concerned about the scope problem. I agree with you that he has testified to contamination issues, however, but when we start getting into specifics of DNA and PCR process, we are in a different ballgame there. That is a guideline. All right. LAPD field manual, red binder item. Mr. Goldberg.
I haven't had a chance to give that to them. It is the LAPD field manual. It has already been marked in another form. I simply have a copy that has the pages numbered. It is a little easier to find them.
I wasn't aware of any issue regarding what the Defense wanted to do, whether they wanted to introduce this entire field manual.
Well, the problem with this field manual, your Honor, is that as the testimony has already indicated, it is a draft manual.
It appears to the Court, however, that it is a series of articles, handouts, leaflets, et cetera, et cetera, that witnesses may be individually familiar with, but the foundation will have to be laid by the witness beforehand.
All right. A foundation will have to be laid before they can be used for cross-examination purposes. I think this is a courtesy that counsel is giving to both you and to the Court to give this to you in this form, it is my understanding, Mr. Blasier; is that correct?
Your Honor, I'm going to be getting into that lab chart. I need some time to revise the presentation.
It is more than that, your Honor. I don't intend to display a big blank screen, and it is part of the presentation, so I have to rework the presentation.
Well, you can ask the questions and you do--how long will it take you to actually rework the presentation?
Your Honor, did the Court rule on item no. 18 as to the EAP? Series of documents?
When they are putting an interpretative slant on it they like, and that is consistent with the arguments that eventually they want to make to the jury, that we strenuously object to. Neither party should be allowed to do that with respect to any diagram or exhibit that we create.
I can't believe-- Their chart that has so many inconclusives they have argued over and over again are misleading and wrong, the Court ruled that this is a matter weight. This is not argumentative. This is from the scientific literature.
We just don't submit articles and quotations to juries to go back with them into the jury room when they are deliberating on a case. So even if it were a direct quote, which it is not, I would still object to it.
I will allow the use of the chart after the appropriate questions have been asked to conform with what is there, otherwise I will--I'm sustaining temporarily the objection on the basis of factual accuracy. If you can link it up, if you can establish from Mr. Matheson's testimony the things that you have indicated, then I will allow its use.