Discovery dispute concerning expert reference materials

📄 Discovery dispute concerning expert reference materials — Thursday, June 30, 1994

Address:

C:\DEPT103\PRELIMINARY\1994\JUN\30\DISCOVERY-DISPUTE-CONCERNING-E.DOC

TRIAL

▲ Day 1 of 6

◀ Redirect examination of Michele Kestler Recross-examination of Michele Kestler and questions from the court ▶

Date: Thursday, June 30, 1994 • Lines: 9

Shapiro claimed the prosecution had failed to disclose manuals and other reference materials used by its hair-analysis expert. Clark said she produced each item as soon as she received it, and the judge found no bad faith, offered the defense more review time, and then continued when Shapiro said he was ready.

# 1 THE COURT:

Mr. Shapiro.

# 2 MR. SHAPIRO:

Yes.

# 3 THE COURT:

Just a few questions.

# 4 MR. SHAPIRO:

Yes. Your Honor, may I direct the court and counsel's attention to our discovery motion, item 29-C, which we had filed last week regarding expert witnesses. "Any and all writings or publications used in any way by the experts in forming opinions or obtaining a basis for forming opinion, including teaching manuals, journals, treatise, text books, bulletins and other records of classes in the expert's field of expertise or otherwise." Again, we've been repeatedly assured every time an issue comes up that all items of discovery will be complied with. Clearly this has not been complied with.

# 5 MS. CLARK:

Your Honor, it has. I have turned over everything as soon as I've received it. This morning I received the item number marked as People's 1, and as counsel was able to see, the witness brought People's number 2 with her. And I didn't have any knowledge of it until the witness brought it in. If counsel would like to question the witness as to how she came about obtaining People's 2 and whether I've ever seen it before she brought it out on the witness stand today, I'd welcome him to do so.

KEY QUOTE

# 6 THE COURT:

Mr. shapiro, it strikes me that this motion with regard to the hairs was one that sort of came up rather suddenly based on your filing an order for my signature yesterday, I believe, limiting the hair sample to one hair. And that's how we got on this whole issue. And if you feel that you haven't had sufficient time to read these manuals then, you know, I'm willing to give you some additional time to deal with that. But I don't see that there's been any bad faith exercise on the part of the people at this point in time in light of the short notice that we're dealing with here in this instance.

# 7 MR. SHAPIRO:

Thank you, Your Honor. We're prepared to proceed.

KEY QUOTE

# 8 THE COURT:

Thank you.

# 9 MR. SHAPIRO:

You're welcome.

Temperature

procedural

Key Quotes (4)

Robert Shapiro

Clearly this has not been complied with.

Shapiro directly accused the prosecution of failing to satisfy the defense's request for materials used by expert witnesses.

Marcia Clark

I have turned over everything as soon as I've received it.

Clark denied withholding discovery and maintained that she disclosed the expert materials promptly.

Kathleen Kennedy-Powell

I don't see that there's been any bad faith exercise on the part of the people at this point in time in light of the short notice that we're dealing with here in this instance.

The judge rejected the suggestion of prosecutorial bad faith because the hair-evidence issue had arisen on short notice.

Robert Shapiro

We're prepared to proceed.

Shapiro declined the court's offer of additional time to review the manuals and continued with the hearing.

Evidence (2)

People's 1

An item received by the prosecution that morning and marked People's 1, apparently a manual or similar reference concerning hair analysis.

discussed as recently disclosed expert reference material

People's 2

A second reference item brought to court by the expert witness, which Clark said she had not known about before the witness produced it.

discussed and challenged as previously undisclosed expert reference material

Notable Exchanges (2)

Robert Shapiro•Marcia Clark

Shapiro argued that the prosecution had not produced all writings and publications used by its experts. Clark responded that People's 1 had reached her only that morning and that the witness unexpectedly brought People's 2 to court.

strategic

Kathleen Kennedy-Powell•Robert Shapiro

The judge offered the defense additional time to read the manuals but found no prosecutorial bad faith given the sudden emergence of the dispute; Shapiro said the defense was ready to proceed.

procedural

Objections

None recorded

Proceeding 9054 • 9 lines

Preliminary Trial

Department 103