Sidebar: hypothetical blood volume

📄 Sidebar: hypothetical blood volume — Friday, May 5, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\5\SIDEBAR-HYPOTHETICAL-BLOOD-VOL.DOC

TRIAL

▲ Day 68 of 167

◀ Redirect examination of Gregory Matheson Redirect examination of Gregory Matheson (part 2) ▶

Date: Friday, May 5, 1995 • Utterances: 17

At sidebar, Judge Ito questions whether prosecutor Goldberg has a good-faith basis for a hypothetical premised on 6.5–7 mL of blood drawn from OJ Simpson — a figure lower than Peratis's sworn preliminary hearing testimony of 7.9–8.1 mL. Goldberg argues Peratis later told him he never precisely measured the blood and now estimates 6.5–7 mL. Blasier objects that this contradicts sworn testimony, but Ito overrules and allows the hypothetical.

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

# 2 THE COURT:

All right. We are over at the side bar. What is the basis of your--the good faith offer that was given by the Defense for their hypothetical was the testimony from the preliminary hearing. What is your good faith offer of proof that you have a 6.5 or 7?

# 3 MR. GOLDBERG:

My good faith offer of proof is two-fold. No. 1, that as I provided to the Defense in discovery, and as I stated on the record, Mr. Peratis has since said that after testifying at the preliminary hearing he went through and tried to reconstruct what he did and he did not take precise measurements at the time that he did this. He did measure it at all, which the Defense and that he now estimates that it was between 6.5 and 7 milliliters of blood from the Defendant that he drew and I'm taking the upper number.

# 4 THE COURT:

All right. Did you provide that report to the Defense?

# 5 MR. GOLDBERG:

I provided them with my--my own notation to that effect some time ago.

# 6 THE COURT:

Is there a report that it is to this--

# 7 MR. GOLDBERG:

My report that I gave to them. That is about a sentence or two long, but yes.

# 8 MR. BLASIER:

Well, I would object--

# 9 (Discussion held off the record between Defense counsel.)

# 10 MR. BLASIER:

It is contrary to his testimony under oath and they could have called them. They had him on their witness list.

# 11 THE COURT:

We are going to see them because all of this is subject to a motion to strike as far as the blood is concerned.

# 12 MR. GOLDBERG:

Do you think if the Prosecution minds if there is a motion to strike as to the amounts in the vial? It was our position that this never should have happened to begin with because of the errors and inaccuracies in all of these figures, as your Honor knows.

# 13 MR. BLASIER:

Well, the way he testified at the preliminary hearing he was positive it was between 7.9 and 8.1. He was extremely precise at that. That is what he does for a living.

KEY QUOTE

# 14 MR. GOLDBERG:

He has never measured it in his entire career.

KEY QUOTE

# 15 THE COURT:

I want to know if he has a good faith basis to form this hypothetical. That is all I'm interested in at this points.

KEY QUOTE

# 16 MR. GOLDBERG:

Thank you.

# 17 THE COURT:

All right. The objection is overruled.

Temperature

tense

Key Quotes (4)

Hank Goldberg

Mr. Peratis has since said that after testifying at the preliminary hearing he went through and tried to reconstruct what he did and he did not take precise measurements at the time that he did this.

Core of the prosecution's position: Peratis's preliminary hearing testimony was not based on actual measurement, opening the door to the lower estimate.

Robert Blasier

The way he testified at the preliminary hearing he was positive it was between 7.9 and 8.1. He was extremely precise at that. That is what he does for a living.

Defense undercuts Peratis's recantation by emphasizing the confidence and professional context of his original sworn testimony.

Hank Goldberg

He has never measured it in his entire career.

Prosecution's sharpest counter: Peratis's precision at the preliminary hearing was itself illusory because he never actually measured blood draws.

Lance A. Ito

I want to know if he has a good faith basis to form this hypothetical. That is all I'm interested in at this point.

Ito narrows the sidebar to a single threshold question, cutting off broader argument about credibility.

Evidence (2)

Informal

Peratis's preliminary hearing testimony placing the drawn blood volume at 7.9–8.1 mL

discussed, contested

Informal

Goldberg's one-to-two sentence written notation summarizing Peratis's post-hearing recollection of 6.5–7 mL, provided to defense in discovery

cited as good faith basis

Notable Exchanges (2)

Robert Blasier•Hank Goldberg

Blasier argues the lower figure contradicts sworn testimony and that the prosecution could have called Peratis themselves; Goldberg counters that Peratis never actually measured the blood and the preliminary hearing figure was an unreliable reconstruction.

strategic

Lance A. Ito•Hank Goldberg

Ito probes whether discovery was properly shared and whether the good-faith basis is sufficient; Goldberg notes the prosecution itself had objected to blood-volume evidence all along due to its inaccuracies.

procedural

Credibility Attacks (1)

⚔ Willie Peratis

prior inconsistent statement

Defense highlights that Peratis testified under oath at the preliminary hearing to 7.9–8.1 mL with precision; prosecution counters that the oath-bound figure was itself never based on actual measurement.

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 5942 • 17 utterances

Criminal Trial

Department 103