All right. Let's go back on the record in the Simpson matter. The Defendant is present with his counsel. The People are represented. The jury is not present. Mr. Scheck, you have offered to the Court a proposed instruction on DNA statistics and I take it you are urging the Court to give an instruction or something similar to this prior to the actual presentation of the statistical analysis of DNA?
Your Honor, the trick in drafting a jury instruction I think is to try to make it balanced, try to make it simple, try to make it clear, try to marshal the general arguments in a way that will aid the jury in assessing the evidence and not confusing it. I dare say that these short four paragraphs took me hours in terms of trying to state things in a way that would be balanced and would direct the jury towards an understanding of the issues. As a backdrop to this, I'm sure the Court is aware of all the articles that both sides cited in the course of briefing on the Kelly-Frye questions and on the statistical issues and on our notice of objections with respect to the issue of population frequencies versus error rates and other factors which may or may not be quantifiable in terms of how one gets to a DNA. The national research council, of course as I'm sure the Court is familiar, addressed this Court very specifically in its chapter on statistics where it indicated that the question of population frequencies of a coincidental match is a separate and independent issue from a match that would arise as a result of laboratory error or mishandling of samples, obviously. That is all we really want to direct the jury toward and that is that there is a danger that has been recognized in all the decisions on this issue, whether the DNA statistics are admitted or not, that is recognized in all the literature I'm sure the Court has read in the national research council report, that once the jury sees these astronomically rare frequencies for various items of evidence, there is a danger that they will jump to a bottom line and think that these frequencies represent, no. 1, a probability that the Defendant is the source, for example, of certain samples, and so forth, as he was at the Bundy crime scene on June 12th. In other words, they confuse it as a source probability. Or no. 2--or they would assume it to be a probability of guilt because the numbers are that astronomically rare in DNA test results that they will divert and mislead the jury unless they have guidance as to where the different arguments lie. This instruction is short and it is correct scientifically and I think it is a fair statement of just where the issues litigated lie in this case. That is to say, that the Prosecution is presenting DNA banding patterns about the likelihood of different people coincidentally having the same banding patterns. That is what frequency evidence is. I don't think there is any dispute on the other side that the number represents anything other than that.
On the other hand, as we point out, that these statistics are not an estimate of the likelihood of a false or misleading match of DNA banding patterns to the errors in the collection or handling of samples and errors in laboratory analysis or intentional tampering of samples. And we just point out that those are two independent issues. And then frankly the last sentence I think that would be customary in any jury charge is particularly important from in terms of probability theory and statistical theory and that is they should consider all the evidence in this case when evaluating the weight of DNA evidence. And again that is just a caution in very neutral terms, I think, don't jump--consider all the evidence in the case, and this obviously is important evidence, but it is only part of what--all the evidence in the case. It seems to me it is a short, neutral instruction that doesn't devalue the evidence the Prosecution is presenting; it only guides the jury in terms of where the various contentions of the parties are. And we tried to write this in as neutral a way as possible. That is the whole purpose of the jury instruction.
Now, the Court did make an inquiry about have people given the notion of preliminary instruction some thought? Now, we initially gave some consideration to proposing an instruction at the very beginning of the trial, but it was clear that before the jury even gets exposed to the DNA procedures and how one goes about calculating frequencies, it is impossible to begin an assessment or to even take in where such an instruction would go. They would be unable to evaluate the contentions of the parties and what they should be focusing on from both points of view. Now, we are getting close to the stage where I think that it is becoming clear to the jury what kind of evidence they are going to be considering, what kind of decisions they are going to be made. Now is the time where guidance would be most appropriate, particularly when the numbers are coming in, so they understand what it is and what it isn't. There is a tremendous need, the literature demonstrates, in terms of the way lay people assess statistics, to have some judicial intervention here to guide the jury on evaluating statistics.
The Kohler article is an actual study that we cited to the Court, and I'm sure the Court reviewed, would show the kind of effects that a very, very rare frequency calculation can have, as opposed to--and we don't have quantification of error rates here of any sizable number for all the labs, but as opposed to if we just assume an extremely high error rate and we assumed an extremely rare frequency, people have trouble assessing that in a fashion that is consistent statistically. That is to say, that they will tend to do something like split a difference. If you tell them that the error rate is one in 200 for false positive and the frequency of a coincidental match is one in a billion, they may split the difference and that just doesn't make any sense in terms of evaluating evidence, so they just need guidance, as the national research council urges, that the possibility of a false or misleading match due to sample handling error is a separate and independent question from these frequencies about coincidental matches. And I think just that much guidance stated in a clear and neutral way from the Court would be of great assistance in assessing what the evidence is and what it is not. That is what we've asked for and I think it is really important. I think it is one of the most important decisions the Court will make. You asked about instructions. I personally worked with Professor Franklin Zweig and many Prosecutors and people from the FBI and judges at the national council of state courts that have been trying to review DNA evidence in terms of how judges should deal with it, what kind of charges would be appropriate. We have also worked with the Federal Judicial Center which has made the efforts in this direction. Courts are struggling with it. We didn't have the big Frye hearing in this case in terms of all the different systems, but what we do have here and what is very much alive and is not waived and is completely the province of this Court is the 352 problem. That is, how are you going to instruct this jury to deal with the statistics? And we have tried to make as balanced and as objective and succinct an effort in this direction, just as a preliminary charge as possible, so that the Court could do that. The last factor I would cite goes back to the classic argument by Lawrence Tribe concerning trial by mathematics and the quotations we put in our previous briefs and that has to do again with the notion that if you have one variable here that you can't quantify, and especially when it comes in in extremely rare form, one in a billion or one in a billion versus one in a trillion in certain instances, and then you are dealing with other variables in the proof which are extremely important, as the Cella case points out in this jurisdiction, and even Collins I think is relevant precedent on this issue, but the point is when you do--when you deal with unquantified variables when the jury should assess it, is the danger is a 352 problem that the jury is going to focus on the only quantified variable to the exclusion of all the other issues that they also in fairness should consider. And that is all we are asking the Court to do, is to give some guidance to the jury in their assessment, not take the stand one way or the other, just tell them what it is and what it isn't, and I think it would greatly assist in their evaluation of the witnesses and the testimony in the case.
Good afternoon, your Honor. Once again Mr. Scheck and I have the most important issue in this case before you. Somehow whenever he addresses you, it is the most important issue. Quite frankly, this is it. This is the most critical thing you will have to decide. Well, I'm not agreeing with him that it is balanced. I don't agree that it is simple. I don't agree that it is clear. But it is totally unnecessary to do now, and that is the simple matter that I think you should address or you should resolve this on. If you listen very carefully, about two-thirds of the way through Mr. Scheck's presentation to you he admitted to you that this instruction is to inject the contentions of the parties. Now, that is the problem. We don't--the jury doesn't decide this based on contentions of parties, even though that has been injected. At every turn people were allowed to do that. There are no contentions on these issues. We have evidence at this point, everything that is in the briefs that were filed that they, with the sage advice of counsel, waived their admissibility hearing for, that is water over the damn. The general instructions do suffice. You asked if there have been any special instructions in this area. The case that was granted review by the Supreme Court, one of the three cases, People versus Soto, had a special instruction requested. It was different than this. I don't want to mislead you. I don't have it. It was read to me over the phone. It had to do with not convicting just based on the probability evidence. But it is another instance of attorneys, Defense attorneys requesting, and I can get that for you, I don't--got lost in the fax wire somewhere, but it was read to me this morning--it is mentioned in the now citable People versus Soto opinion, and the text is not--it is not like this but it is another instance of a special instruction that was denied by the trial Court. The appellate Court agreed with the denial of this. But there is a general disfavor for special instructions at any point in the process. Let me inject a little humor into this. Let's just imagine that Max Cordoba, who is going to come out and testify about whatever it is that he's alleged to have said, and let's imagine that we say, wait a minute, your Honor, this is the most important issue you are going to hear in this case, this is critical, because the whole domino effect could come into play. And we have said to you, your Honor, this is it, you have to address this right now. It is a lot easier without everybody in here, too, to have these discussions.
You are about to be presented the testimony of Max Cordoba who will testify about A, B and C about Detective Fuhrman. You must be very careful in considering the testimony of Max Cordoba because he may have had this in a dream, he may have dreamed that he heard it, he may have heard it, then dreamed that he heard it, and before you can consider the testimony of Max Cordoba you have to decide whether my instruction made any sense and whether or not he really did hear the things at hand. Now, you know, we've gotten carried away I think with all the sanctions and things and I think when you start giving special instructions at this point in the case, everybody is going to be lined up, we have all these specialists here, we are all going to be lined up saying this is a special instruction that is indispensable to the fair resolution of this case. Paragraphs 2 and 3--why now? All of the things alluded to may never come into evidence in this case. Just because they've got all these psychologists writing articles about scientific issues doesn't mean that there is going to be any admissible testimony on these issues. Paragraphs 2 and 3 are argumentative. Scientists, real scientists, not psychologists, would agree that the true way to resolve whether any laboratory error was made is to retest the evidence, not to quibble and extrapolate industry-wide error rates. That is the science that we are dealing with here in this area. 2 and 3 are totally misleading in that context.
I have a problem--well, first off, I have a problem with the word "likelihood" and I am really surprised to see it in there, because if you look in the dictionary, as I did, "likelihood" equates to probability, and I always thought that was a Defense no-no, that we couldn't talk about probability. If you give this instruction, and I think that some instruction you may give at the close of all the testimony, the correct word to insert in the place of "likelihood" is "possibility," because there may be no likelihood that a laboratory committed an error, that is a probability. And it may sound like semantics, but if you look in the dictionary for the definition of the two words, I think you will see a profound difference. But I mean the real issue is there is a general disfavor of special instructions. There is no basis for some of the information that is contained in that instruction now.
Let me ask you this, Mr. Harmon: As a general proposition, though, given the unusual nature of DNA evidence and the manner in which it is presented, don't you think some special instruction would be warranted at least explaining to the jury in as concise a way as possible what it is that this evidence can do and what it can't do?
You know, I think philosophers have struggled with how to express that to them. I am not disagreeing with you, but I think words develop profound importance; one word in place of another, a comma in a different position. I don't think this is it because it alerts them to something that may never manifest itself, and I mean it really does raise this issue that Mr. Neufeld didn't want to have us getting into, and that is Defense access to evidence, which is lurking around in the background of this case, and will be for the next few weeks, as the answer, the scientific, the hard scientific answer to all of these things, so, umm--but I think the real struggle is how to do it. And you know, one of the real problems is, it is clear they have been thinking about this for a long time. I appreciate how hard it was for Mr. Scheck to come up with this, but it is obvious that this was something that was contemplated for so long. And I don't think it is fair and appropriate to lay it on us the day of the testimony that they expect it to begin. That--I don't think that is appropriate. And I wish we could change things so that we have fair notice and appropriate time, regardless--you know, Court time is valuable, but this is not the kind of sandbagging--if this is the most important issue, then it should be important to us and we should have notice of it.
Miss Lewis advises me that you are on the Caljic committee and I can imagine the kind of intense discussions that you have about semantics and sentence structure, particularly when you realize the profound effect. You know, we can all argue everything that is in here, if there is testimony, and we can conform our arguments to the standard Caljic instructions. We have seen cases get reversed because a Judge with a keen insight and following the case before him, decides to make a subtle change in it. And I don't think that there is safety in being conservative, but given that this was just dropped on us this morning, it is something that we will have plenty of time to resolve before the jury is instructed.
Yes. First of all, at least I'm consistent. I'm sure the Court recalls that I brought this to the Court's attention many times on this 352 issue and talked about the need for guidance in an instruction as being critical. Mr. Harmon has a way of trivializing this issue which I think is inappropriate. We all know that instructions with respect to special witnesses are necessary and are the obligation of the Court to clarify matters for a jury. There are special instructions, no doubt, on informants that are given, on experts, on eyewitness identification. I don't know the precise forms of them in California, but I know they exist and I know they exist in other jurisdictions. DNA and statistics is definitely one of those areas and it has been the issue we have been addressing to the Court and I'm sure the Court has given some profound thought to it already because even though we never litigated the hearing, the 352 objection has been abiding and has been there. If Mr. Harmon doesn't like the word "likelihood" in this instruction, I would readily accede to the word "possibility." I think they've had fair notice that this was an issue that we all had to resolve. This is my best efforts at it, trying to look at it from the Court's point of view, because that is the way lawyers should act when they submit instructions. And it seems to me that the Court should--my request would be that if they have any counter-instructions or suggestions or there is something they don't like in this, that they should indicate precisely what it is. I think we made our best efforts to give guidance and I think the Court's obligation here I would hope is to give guidance. This is the time to give guidance. This is something that I think other courts in your position in the future would have to do and this is the time. We have been talking about it for a while.
Well, unfortunately the California Supreme Court's granting hearings on three significant DNA cases has pretty much muddied the waters, at least as far as trial courts are concerned at this particular point in time. Mr. Scheck, I agree with you as a matter--as a philosophical matter that this is something the Court probably should instruct on. I also agree with Mr. Harmon's argument that we don't necessarily know how the issues have been framed just yet and perhaps at this particular instruction at this point is premature. But I do think that some instruction perhaps at this time, within the context of our discussion over the next couple of weeks, might be appropriate. I'm going to ask Mr. Harmon to submit--Mr. Harmon, I take that it Mr. Clarke is going to be carrying the ball for the next day or so?
KEY QUOTEAll right. I know I would like to do it sooner, but I think within the context of our discussions I think that will be sufficient time. All right.
once the jury sees these astronomically rare frequencies for various items of evidence, there is a danger that they will jump to a bottom line and think that these frequencies represent, no. 1, a probability that the Defendant is the source
Paragraphs 2 and 3 are argumentative. Scientists, real scientists, not psychologists, would agree that the true way to resolve whether any laboratory error was made is to retest the evidence, not to quibble and extrapolate industry-wide error rates.
given the unusual nature of DNA evidence and the manner in which it is presented, don't you think some special instruction would be warranted at least explaining to the jury in as concise a way as possible what it is that this evidence can do and what it can't do?
the California Supreme Court's granting hearings on three significant DNA cases has pretty much muddied the waters, at least as far as trial courts are concerned at this particular point in time.