Defense expert guidelines

📄 Defense expert guidelines — Tuesday, May 9, 1995

Address:

C:\DEPT103\CRIMINAL\1995\MAY\9\DEFENSE-EXPERT-GUIDELINES.DOC

TRIAL

▲ Day 70 of 167

◀ Jury instruction: DNA statistics Kardashian testimony stipulation ▶

Date: Tuesday, May 9, 1995 • Utterances: 25

A brief procedural sidebar in which Barry Scheck asks for advance notice before Clarke questions witnesses about defense expert activity at Cellmark, specifically worried about relitigating whether the defense received adequate sample access (the '10 percent' issue). The court directs Clarke to flag such questions at sidebar before asking them. The discussion ends with a narrow ruling that Clarke's planned question — whether Dr. Blake contaminated samples — is not objectionable.

# 1 MR. SCHECK:

We have one other issue, your Honor.

# 2 THE COURT:

Yes.

# 3 MR. SCHECK:

A prophylactic one, and that has to do with some guidance on what evidence can be elicited with respect to the activity of Defense experts concerning the evidence and what can't be and what kind of statements or inferences can be drawn.

# 4 THE COURT:

Mr.--let me ask Mr. Clarke, what are you going to do with this at this point?

# 5 MR. CLARKE:

Actually if I can check--if the Court will just give me two moments, I don't believe I have another reference, but I will check.

# 6 THE COURT:

All right. All right.

# 7 MR. SCHECK:

The only concern we had there, and I think it would be important to have some notice ahead of time when this issue is going to arise, is that--

# 8 THE COURT:

Right. That's fair.

# 9 MR. SCHECK:

--we have that problem that we didn't want to object in front of the jury because--

# 10 THE COURT:

And I saved you the trouble.

# 11 MR. SCHECK:

You saved us the trouble on the issue of the Court order, but where it arose again, and we didn't object and just because we stood up and made an objection and we decided to talk about it later, is that we talk about the ten percent. Is it--the problem is are we going to get back into litigation in front of this jury as to whether the Defense should have been entitled to more or ten percent of what at what time for what kind of tests? These under 352 I think are just inappropriate and more trouble than it is worth.

# 12 THE COURT:

All right. Mr. Scheck, let's do this--Mr. Clarke, let me direct you--if I can have your attention for two seconds.

# 13 MR. CLARKE:

Yes.

# 14 THE COURT:

Let me direct you to notify the Court before you get into an area of questioning regarding Defense experts at cellmark and then we will take that up at the side bar.

# 15 MR. CLARKE:

Actually I have reviewed that. There are two questions. One, I was going to ask the witness if Dr. Blake did anything to contaminate any of the samples in the witness' opinion in the course of this cutting process. And then, lastly, were--

# 16 MR. SCHECK:

You will say no, right?

# 17 MR. CLARKE:

--were all of the raw data--

# 18 THE COURT:

He spit on it.

# 19 MR. SCHECK:

He sneezed on it. He flaked dandruff on that.

KEY QUOTE

# 20 MR. SHAPIRO:

We have another term for that.

KEY QUOTE

# 21 MR. CLARKE:

Actually, no other reference to Defense experts.

# 22 THE COURT:

Did Dr. Cotton observe anything during the course of this procedure that would indicate that anything he did was other than in a scientifically approved manner that the ten percent was taken.

# 23 MR. CLARKE:

Correct.

# 24 THE COURT:

All right. I don't think that is an objectionable question.

# 25 MR. SCHECK:

No. I mean--that is all right.

Temperature

light

Key Quotes (4)

Lance A. Ito

He spit on it.

The judge unexpectedly joins the joking about Dr. Blake potentially contaminating DNA samples, signaling a relaxed moment.

Barry Scheck

He sneezed on it. He flaked dandruff on that.

Scheck piles on the joke, indicating the defense is not genuinely alarmed by the question.

Robert Shapiro

We have another term for that.

Deadpan Shapiro one-liner that lands without further elaboration — the room gets it.

Barry Scheck

are we going to get back into litigation in front of this jury as to whether the Defense should have been entitled to more or ten percent of what at what time for what kind of tests?

Crystallizes the defense's core concern: reopening sample-allocation disputes before the jury under the guise of expert-conduct questions.

Evidence (1)

Informal

DNA samples at Cellmark — specifically the 'ten percent' allotment given to defense experts for independent testing

discussed as backdrop to ruling on permissible questions

Notable Exchanges (2)

Barry Scheck•Lance A. Ito•George Clarke

Scheck raises concern about prosecution questions implying defense experts mishandled samples; Ito resolves it by requiring sidebar notice before Clarke enters that area.

strategic

Lance A. Ito•Barry Scheck•Robert Shapiro

After Clarke describes his planned question about Dr. Blake contaminating samples, the judge, Scheck, and Shapiro riff with escalating jokes about spitting, sneezing, and dandruff.

light

Light Moments (1)

Lance A. Ito / Barry Scheck / Robert Shapiro

Judge Ito spontaneously says 'He spit on it,' prompting Scheck to add 'He sneezed on it. He flaked dandruff on that,' and Shapiro to close with 'We have another term for that.'

Objections

None recorded

Proceeding 5968 • 25 utterances

Criminal Trial

Department 103