Thank you, your Honor. I mentioned in our informal discussions, first of all, the Everett case, Everett versus Everett, 150 Cal. App. 3D, 1053, 1072 and 73 and footnote 18, which discusses this issue of the 403(c) jury instruction. And I think it's interesting in that case to note in the footnoted material in discussing this issue of the judge making a preliminary foundation finding on a relevancy issue and so forth, that the court finds--not the court--the assembly committee to--the judiciary committee finds that:
"Frequently, the jury's duty to disregard conditionally admissible evidence when it is not persuaded of the existence of the preliminary fact on which relevancy is conditioned is so clear that an instruction to this effect is unnecessary. For example, if the disputed preliminary fact is the authenticity of a deed, it hardly seems necessary to instruct the jury to disregard the deed if it should find that the deed is not genuine. No rational jury could find the deed to be spurious and yet to be still effective to transfer title from the purported grantor." They go on in this commentary from the assembly committee to point out:
"At times, however, it is not quite so clear that the conditionally admissible evidence should be disregarded unless the preliminary fact is found to exist. In such cases, the jury should be appropriately instructed. For example, the theory upon which agents and coconspirator's statements are admissible is that the party is vicariously responsible for the acts and statements of agents and coconspirators within the scope of the agency or conspiracy. Yet, it is not always clear that statements made by a purported agent or coconspirator should be disregarded if not made in furtherance of the agency or conspiracy. "Hence, the jury should be instructed to disregard such statements unless it is persuaded that the statements were made within the scope of the agency or conspiracy." And then they go on to note that:
"Subdivision (c) therefore permits the judge in any case to instruct the jury to disregard conditionally admissible evidence unless it is persuaded of the existence of the preliminary fact.
"Further, subdivision (c) requires the judge to give such an instruction whenever he is requested by a party to do so." There is no doubt based on 403(c) that this court has an obligation because the Defense is requesting through D-1 through D-5 to have the jury instructed on these foundational aspects of relevancy for this physical evidence. But I think it's important, no. 1, just to understand that first comment about sometimes it's so obvious that unless, of course, the instruction must be given because there's a request, there's no reason to give it, the whole thrust of this Defense case is disregard the physical evidence because its sources are so spurious as to show clearly that any result that you would take from that evidence and infer that O.J. Simpson is the killer is unreliable. If it is not clear to this jury by now that there is a contention from the Defense that this evidence that we contend is a mountain of evidence to prove the Defendant's guilt is merely irrelevant evidence because it lacks chain of custody, it's contaminated, it's confused, it's planted, who knows what, but it is not evidence which was deposited by the killer or in some fashion created in the course of the killings from which it is rational for the jury to infer that such evidence proves identity--that's what this all comes down to. I don't think this is a real tough thing for the jury to figure out as--if you believe the Defense that there's problems with all this stuff, it's not very good evidence, and if you believe the Prosecution that this stuff is a mountain of evidence, Mr. Simpson is going to be in some trouble. The judge has to instruct under 403(c). That's what our proposed instruction does. And what it tells the jury in neutral terms, legal terms, not isolating on specific evidence, not being argumentative, not being inaccurate and misleading as the evidence--as the references to the evidence in D-1 through D-5 are, is that, "Where there is physical evidence admitted, including the expert opinion concerning analysis of such evidence, that evidence may have a tendency in reason--" notice the word "May"--"May have a tendency in reason to prove elements of the crimes charged or the identity of a perpetrator of such crimes or both." This instruction then tells the jury:
"You are the sole judges of whether such evidence does in fact have a tendency in reason to prove any issue in this case." They are the sole judges of whether this evidence is relevant. The instruction then tells them what they need to know in order to decide if this evidence is relevant by saying:
"If, after your review and consideration of all of the circumstances surrounding any specific item of physical evidence or expert opinion, you find that such evidence does not have a tendency in reason to prove any element of the crimes charged or the identity of a perpetrator of the crimes charged, you are instructed to disregard such evidence as such a finding renders this evidence irrelevant." If this jury finds that the chain of custody is so botched that one can't say that what was tested was the same item that was recovered, if this jury believes that something flew in the air and, in fact, contaminated some stain such that what the result was was the result of what flew in the air and not what was in the stain originally, this jury will know from review of all the circumstances that that evidence will have no tendency in reason to prove that Mr. Simpson is the killer. I don't think logically it takes an instruction to tell the jury what is so reasonable for any juror to understand and which will I'm sure be mentioned more than once or twice in the Defense arguments to this jury, but this instruction gives the Defense everything which legally they are entitled to in a fashion which is a legally correct statement of law which is neutral, neutral to both sides. May I have just a moment, your Honor?
Mr. Clarke wants me to be sure, if I didn't mention in enough detail, that the instructions themselves, even if the court were inclined to think that there is something broader that is required, they are argumentative and inaccurate. There are so many misstatements. For example, Mr. Clarke points out that a stain going from a wet state to a dry state, that's a change which under some of these instructions would suggest that the result is unreliable and not relevant or a number of changes in the sense of bacteria getting into the mix that's contamination. But that doesn't mean that the end result of whatever DNA testing is performed is unreliable or invalid. And so again, these are issues of fact for the jury to decide with proper legal instructions. The instructions proposed by the Defense are arguments to the jury that are incomplete and misleading and more fundamentally, they are not a correct statement of law for the purposes of helping this jury neutrally assess the evidence. Submit it, your Honor.
Yes, your Honor. The People's proposed special instruction, no. 1, completely misconstrues the whole purpose of section 403 of the evidence code. What this instruction does is say to the jury, if you find the evidence is irrelevant, disregard it, and it states that test in terms of the legal test of relevance, "If you find the evidence does not have any tendency in reason to prove any element of the crimes charged." That's a determination made by the court in admitting or rejecting evidence. You find it's relevant, it's admitted. The jury then considers it and we don't tell the jury, well, you review the judge's ruling on whether this evidence is relevant, and if you disagree with the judge, then don't consider the evidence. That's not the purpose of section 403 of the evidence code. Section 403 of the evidence code does not invite the jury to redetermine the question of relevance. It invites the jury to make a finding on a preliminary or foundational fact the relevance of the evidence is dependent upon. And there's a very--I know my students have great difficulty understanding the difference between 403 and 405 and understanding what preliminary facts are and apparently Mr. Kelberg has the same problem. So let me see if I can educate him a little bit. A preliminary fact is defined in the evidence code in section 400 as a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence. A preliminary fact, for example, relevant to much of this evidence is that there was a proper chain of custody maintained, that the evidence was maintained in an unaltered or unchanged condition from the time it was seized until the time it was examined. Now, what section 403 says is that where the relevance of the evidence depends upon the existence of a preliminary fact, the court must find that that preliminary fact, there's sufficient evidence to support a finding of that preliminary fact and then submit to the jury the determination of whether they find the preliminary fact exists, and if they find it exists, to then consider the evidence itself. And section 403 says that with respect to these kinds of preliminary facts, not all preliminary facts--there are preliminary facts as to which the finding of the court is conclusive and determinative and we don't then hand to the jury the determination, for example, of whether a privilege exists. But with respect to a preliminary fact on which the relevance of the evidence depends, we do hand that issue to the jury. And 403 says:
"The court on request shall instruct the jury to determine whether the preliminary fact exists and to disregard the evidence if they find it does not exist." That's not a determination of relevance. It is a determination of a fact upon which relevance depends. And the instructions submitted by the People invites the jury to redetermine relevance without identifying for them the specific preliminary fact that they have to find before the evidence becomes relevant. And what we have done in the proposed instructions D-1 through D-5 is to identify what the preliminary fact is that they have to find before that evidence is relevant and may be considered by them.
How do you address Mr. Kelberg's concern that these instructions relate to specific items of evidence and are phrased in an argumentative manner?
Well, they have to relate to the specific items of evidence because each of these specific items of evidence is admitted under section 403 of the evidence code. I mean, these are specific items of evidence where their relevance depends on the finding of a preliminary fact and there's no other way to present it to the jury other than to identify what that preliminary fact is that they must find before they can consider--for example, evidence of blood or hairs or fibers, they have to find that a reasonable chain of custody was maintained with respect to that evidence. Otherwise, it's irrelevant. So this simply informs them that you've got to make that finding before you consider this evidence for any other purpose. With respect to specific deposits of blood, those deposits are irrelevant if they were deposited at some time other than the commission of the crime by some person other than the perpetrator of the crime. And this tells them unless you find that, disregard it. It's irrelevant. So there's simply no other way to present a 403 question to the jury other than to identify the specific item of evidence and tell them what preliminary fact they must find before they consider that.
I think the fact that Dean Uelmen used 403(c) one way and the fact that I may view it differently should not be taken as anything unusual in the practice of law. Perhaps my students are given my point of view, Dean Uelmen's students are given his point of view, and that's why we perpetuate, that's why we have 405 decisions from the United States Supreme Court. It's very hard for lawyers to agree on much of anything. But, for example, in instruction D-1, if you determine that a reasonable chain of custody of such evidence was not established, however, you must disregard such evidence and not consider it for any purpose. Your Honor, the jurors could find that there were things about the chain of custody that were not reasonable, yet it did not impact at all on the integrity of the evidence, and as a result, whatever result that was obtained from a testing of that evidence is, in fact, evidence which is a rational source for inferring the identity of the Defendant as the perpetrator. That's why these instructions are very misleading factually and legally. And where the real issue is, the jury must look and find for themselves from the underlying circumstances that go to the issue of whether the evidence is relevant whether, in fact, from that review of all of those circumstances, they believe the evidence has a tendency in reason to prove one of these issues. If they find from the review of all the circumstances that go to the issues, like chain of custody and so forth, that this evidence has lost its integrity of showing what it is claimed to show, the jury is told, you cannot consider it because having decided that foundational fact against the Prosecution, you have found this evidence to be irrelevant, and having made that finding, you may not consider it. That's what our proposed instruction says. That is what the law requires. I submit. Thank you, have Honor.
All right. All right. The court will decline to give 1 through 5. I will give a modification of People's 1. All right. Special instruction D-6, match in fibers and hairs. Mr. Kelberg.
On D-6, your Honor, no. 1, of course, 2.80, the standard jury instruction tells the jury exactly how they are to assess expert testimony. This instruction focuses on a very narrow area of the physical evidence and attempts to highlight that evidence and the jury's understanding of what they can do with this evidence.
Even though I haven't heard a lot of the testimony in this area, it appears not only from what I have heard, but from our informal conversations in chambers that if the jury understands very little else about this case, they understand the limited nature of comparisons of hair and fiber and the difference between the power of comparisons of hair and fiber to the power of RFLP DNA testing. This instruction is unnecessary. It focuses on a narrow area. It's covered by 2.80 and I submit the court should reject it and give the standard instruction. Thank you.
One word that has recurred with some frequency throughout this--well, lots of words that recurred with some frequency, but one that can certainly lead to some confusion on the part of the jury is the word "Match." With respect to some testimony, the witnesses were instructed not to use the word; and despite that instruction, the word crept in again and again. We're going to hear that word in closing argument, and the jury needs to know that with respect to some evidence, that word can be used and it has a specific meaning, and with respect to other evidence, that word cannot be used. And they need to know why. And this instruction simply tells them that we did not use the word "Match" with respect to hairs and fibers and here is why; because an opinion that they have similar characteristics is not a match. It does not mean that they came from the same source. And we believe it's appropriate to make that distinction because we made it in the presentation of the evidence. We're going to make it again in the closing argument and the jury should be let in on the secret as to why some evidence can be characterized as a "Match," some cannot and what the word "Match" means.
Thank you, counsel. All right. In this situation, the question is whether or not the court feels it's appropriate to give the jury guidance in this area, whether or not they need guidance here and whether or not there's any danger that they'll be misled from the manner in which the evidence was presented. The evidence presented with regards to both hair and fibers was very clear to the jury and the limitations with regard to that evidence as to both hair and fibers was apparent to the jurors through both direct and cross-examination. I don't think this instruction is necessary and I decline to give it. All right. D-7.
Your Honor, I believe based upon our conversations in chambers, if we join D-7 and our proposed special jury instruction no. 3--although I believe, your Honor, we would like to work a little bit on the language. So I think it best if the court might reserve the issue here. We will definitely, based upon the court's discussion with us, coordinate by having the first sentence of our proposed special jury instruction followed by some form of the second sentence of the Defendant's proposed D-7 and then followed by some form of the third sentence of the--or the next sentence of the Defendant's proposed and concluding with the second sentence of our proposed no. 3 instruction. But we would submit this early this afternoon, your Honor.
Your Honor, we believe that the special instruction no. D-7 is absolutely essential to a proper evaluation by the jury of the DNA evidence. Your Honor has already indicated that you would give the second and third sentences, which we believe are absolutely essential in terms of the meeting of a random match, but it is also essential that the jury know that the statistics presented with respect to matches make no accommodation of the possibility of contamination or errors in laboratory analysis, and we believe that it is appropriate to so inform the jury that probabilities, statistics assume that there has not been contamination, there has not been error in the laboratory analysis.
I'm informed by Mr. Scheck that the importance of the laboratory error rates is so essential that the report of the national academy of science recommends that in every case, the jury be told about the significance of laboratory error rates and that your Honor had indicated that the jury would be so instructed in the final instructions that we can't--
I don't know that I said that. I think that I said I would allow the admission of evidence going to laboratory error rate. That was my recollection. But in any event, go ahead.
Well, we would strongly urge that the court again look at the recommendations of the national academy of science in terms of not only what evidence is admissible, but what the jury is told about the significance of that evidence; that it is absolutely essential that they understand that these random match probabilities take no account or do not in any way take into consideration the possibility of laboratory error rates or the possibility of contamination.
Briefly if I might, your Honor. First of all, Mr. Clarke assures me that the modifications, if any, to the second and third sentences will be minimal. We do clearly object to the last sentence of D-7.
Because, no. 1, the jury has been informed through questioning of Dr. Gerdes, through the error rates at cellmark evidence and so forth about those circumstances and about what influence, if any, those circumstances play on statistics. This is argument. This is a Defense argument. Also, contamination does not mean that the statistics are unreliable for use in assessing a match because, as the court has heard, as this jury has heard, samples can be contaminated and yield reliable and valid results. So it is not an accurate statement of fact. It is a Defense argument to the jury as to what they should conclude from evidence they have already heard and which they can assess for themselves as to the significance of the laboratory error rates and the possible impact of contamination. Submitted.
Your Honor, we're dealing with evidence that the Appellate Courts again and again have expressed grave reservations and caution about the misuse of this evidence, the potential that juries can be misled as to the significance of DNA evidence, and we believe that the recommendations of the national academy of science should be given great weight in terms of how this evidence is presented to a jury because of that tremendous risk that the jury will make assumptions about what this evidence says to them and what it doesn't say. And one thing that this evidence clearly does not say is that you can assume that the evidence is not contaminated and you can assume that there were no errors made in the laboratory analysis. And we believe that it's essential that the jury be told of the significance that a match takes no account, takes no measure with respect to that possibility, that the statistics assume that there has been no contamination, it assumes there's been no laboratory error and the jury must be informed of that fact.
With respect to Mr. Kelberg's argument that results may be valid even in the presence of contamination, that is a qualifier that can be added depending on the kind of contamination that we're dealing with. But the laboratory error rates are absolutely essential. I mean, the national academy of science's position is that random match statistics are meaningless.
But the NRC report says that jurors should be made aware of laboratory error rates, and that's what occurred here. They have been told about the laboratory error rates.
No. They have to be made aware that the statistics, that the random match statistics do not take into account the possibility of laboratory error rate. That's what they need to be told, that these statistics assume that there has been no error in the laboratory analysis.
But wasn't that brought out before the jury during both the direct and cross-examination--
So was the significance of the random match. But the point is, at the instruction phase, when we're telling the jury as a matter of law what this evidence means, the risk of misuse of this evidence is so great that the jury must be told in unequivocal terms a random match does not mean that we're assessing the probable guilt of the Defendant and a random match assumes that there has not been an error in the laboratory analysis.
No. I think I've heard enough on this. Thank you. All right. The court will instruct as follows as to this issue: "You have heard testimony about frequency estimated--excuse me--frequency estimates calculate for matches known reference blood samples and some of the bloodstain evidence items in this case. The random match probabilities statistics used by DNA experts is not the equivalent of statistics that tells you the likelihood of whether the Defendant committed a crime. The random match probability statistics is the likelihood that a random person in the population would match the characteristics that were found in the crime scene evidence and in the reference sample." And that will be the instruction.
Your Honor, the court is not going to give the concluding--I think it wasn't the concluding sentence, but I thought based on our conversation, the court thought that the second sentence of our proposed--
I'm sorry. I left that out. "These frequency estimates are being presented for the limited purpose of assisting you in determining what significance to attach to those bloodstain testing results."
A preliminary fact is defined in the evidence code in section 400 as a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.
I know my students have great difficulty understanding the difference between 403 and 405 and understanding what preliminary facts are and apparently Mr. Kelberg has the same problem. So let me see if I can educate him a little bit.
The whole thrust of this Defense case is disregard the physical evidence because its sources are so spurious as to show clearly that any result that you would take from that evidence and infer that O.J. Simpson is the killer is unreliable.
The random match probability statistics is the likelihood that a random person in the population would match the characteristics that were found in the crime scene evidence and in the reference sample.
The national academy of science's position is that random match statistics are meaningless.