Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Blasier, Mr. Scheck and Mr. Neufeld. Also present Mr. Uelmen. The People are represented by Mr. Clarke and Mr. Darden. The jury is not present. The record should reflect that this morning at eight o'clock the Court met with counsel informally for an hour this morning to review and discuss the various crime scene and autopsy photographs that the Prosecution wishes to offer into evidence. And that the Defense, at the request of the Court, will be filing a written response to the Prosecution's letter of April the 14th. That is to be filed by the close of business Friday, May the 12th, and that we will have the formal hearing as to each one of the photos the afternoon, May the 24th, at 4:00 P.M. All right. Mr. Neufeld, you indicated you had a matter you needed to take up before we resume with Dr. Cotton.
Yes, your Honor. Actually there are a few matters. As you may recall, we met twice already on the boards that the People intend to use today.
And you were going to rule, one, on the objection to the use of the word "source." We believe that the proper term for that column should be "failed to exclude" and not "excluded by" because these are all, as even Dr. Cotton will testify or will testify, these are tests of exclusion and that is the standard terminology in the scientific literature, in the scientific community, so that is one of the issues that has to be resolved before the boards come out. I think you have already resolved, and I may be mistaken or the People consent to remove the "trail" word so that is no longer an issue. Then we have the issue of mixed stains and you had asked the People to first produce yesterday numbers on what the aggregate frequencies would be for the mixed stains. Umm, I'm told by Mr. Clarke that there is still--they don't have those numbers yet. But that obviously has to be resolved before the boards come out as well. Finally, your Honor, and perhaps most importantly, we talked about both in the interest of saving time and preserving a record that we would have standing objections before the various questions are posed to Dr. Cotton on issues which we had specifically objected to in Defendant's notice of objections to the testimony concerning DNA evidence and memorandum in support of this which was filed with the Court I believe on March 20, 1995. And the Court issued a written decision with respect to that motion. What we would like to do, obviously, is at this point--or get some guidance from the Court--is again incorporate this notice of objections by reference, and insofar as the witness, the witness' testimony, touches upon any of the issues which we have specifically raised in our notice of objections, that the Court will deem it that we object to that testimony and to the witness' answer, so we don't have to constantly interrupt the proceedings all along.
All right. Mr. Clarke, let's address the trail issue first. I take it you have consented to revise the board to "walkway and driveway"?
Yes, that's fine, your Honor, and in fact those patches have been prepared or are being prepared.
All right. As to the concern about the nomenclature source, on the source versus not excluded, have you reevaluated your position on that?
I think, as I mentioned to the Court last week, that it is our belief that, frankly, the term "possible source" is synonymous and neutral and there is no need to change it, but we do have patches if the Court so directs, however.
I will direct the use of the "not excluded" label. All right. As to the mixed stains issue?
I think with regard to that issue we are going to have to require some more of the Court's time. This has taken some substantial mathematical calculations based on the samples that are involved, and I think an important background is as follows: With respect to this witness' testimony, there are only two particular samples that are involved. I don't know if the Court wants me to get into detail, but it is going to be our request that we actually convene a hearing with this Court about the issues that are involved in this, and they include, for instance, our position that this issue use has been totally waived by the waiver of a hearing. So I think we need some of the Court's time. I'm not going to get that far this morning, so however the Court would like to proceed with it, I think we need a more formalized hearing process.
All right. Refresh my recollection as to which mixed stain comes up in Dr. Cotton's testimony.
There are two. One is item no. 78 from the bottom of Mr. Goldman's shoe that also has RFLP results. That one makes that one slightly unique in this series of results in this case as far mixtures. And the second item is the stain from the steering wheel of the Bronco that as I believe I mentioned to the Court last Friday, frankly, that stain is a little bit different than the others as well because while consistent with Mr. Simpson, there is obviously another contributor that is not directly related or may not be directly related to this case on the steering wheel, so that one is slightly different from the other mixtures as well. In this mixture issue, while I agree it needs to be resolved in some fashion before frequencies are discussed by Dr. Cotton, is frankly more relevant in the ensuing witness' testimony as well.
All right. Then I would suggest we take that up at one o'clock. Let's proceed with Dr. Cotton's testimony and we will get to the mixed stain issue at 1:00.
I'm sorry. Let me ask Mr. Clarke one other question. Do you have any objection to the Court deeming the--allowing a standing objection as per the previous memorandum of points and authorities that was filed in late March?
No, not with the--as long as it is with the understanding that we believe those objections have been waived previously as well, but as far as eliminating the need to object at every step, certainly that I think is an appropriate way of proceeding.
All right. Then I will deem these objections have been made for the course of the presentation of this witness. Mr. Scheck.
Obviously to the next--to the other DNA witnesses as well so we don't have to bring it up again.
Your Honor, after a lot of hard work, we have come up with a proposed instruction, preliminary instruction on DNA statistics, that is four short paragraphs, very short. I think balanced and a real candidate for Caljic. Isn't that what they call it here?
And I think it is one of the most important rulings you will make in the whole case and it is our best effort, very short.
KEY QUOTEI have given Mr. Clarke a copy and maybe this is something that you would take up at one o'clock as well.
Just one question. With respect to this witness' testimony, I understand there is available a wireless microphone, and when Dr. Cotton is, for instance, down in front of the jury, sometimes her voice is not being picked up by a microphone and I think it may aid her in being understood by the jury. With the Court's permission, we would like to use that.
If she is down off the witness stand then she is standing right before the jury box. Do you think it is really necessary?
I think at times with these boards she is occasionally facing away, I think it will help, but I will leave that to the Court's discretion, obviously.
Where is Dr. Cotton? Dr. Cotton, are you familiar with the perils of using wireless microphones?
Oh, it is fine. You know, we could wait until this afternoon and see if I'm having any problems.
When her back is to me and she is facing the jury I do have difficulty understanding her.
Dr. Cotton, realizing there are no off-the-record comments while you are using the microphone--
I will direct the use of the 'not excluded' label.
I think it is one of the most important rulings you will make in the whole case and it is our best effort, very short.
While consistent with Mr. Simpson, there is obviously another contributor that is not directly related or may not be directly related to this case on the steering wheel.
Dr. Cotton, are you familiar with the perils of using wireless microphones?