📄 Recross-examination of Michele Kestler and questions from the court — Thursday, June 30, 1994
Address:
C:\DEPT103\PRELIMINARY\1994\JUN\30\RECROSS-EXAMINATION-OF-MICHELE.DOC
TRIAL
▲ Day 1 of 6

Recross-examination of Michele Kestler and questions from the court

Witness: Michele Kestler
Examiner: Robert Shapiro
Called by: Prosecution • Date: Thursday, June 30, 1994 • Lines: 48
Shapiro challenged the basis for Michele Kestler's requested hair sample, emphasizing that she had not read her reference book in full and that the book did not expressly state how many hairs must be plucked. Kestler maintained that microscopic comparison requires whole hairs, including roots, and that more than one hair is needed; in response to the court, she explained that a flexible collection of 30 to 100 hairs ordinarily would not be excessive.
1

RECROSS-EXAMINATION

2

BY MR. SHAPIRO:

3 Q:

With regard to the book you relied on, have you read that book in its entirety?

4 A:

No, I have not.

5 Q:

What portions of the book have you read?

6 A:

Over the years I've read different portions. It's basically a reference book. I sort of collect books on forensic evidence, and especially by people I know, and I know all the authors of this book personally. So I have, you know, read different parts here and there. I haven't read the whole thing. It's repetitive of many things. There's only small sections on hair and blood. There's other sections on, you know -- this is entirely forensic science. It's an introduction to criminalistics.

7 Q:

Regarding the section on hair that you have relied on in forming your opinion, did the authors of that book say how many hairs should be plucked for comparison for D.N.A. analysis?

8 A:

I don't recall, because this was written in 1983, and so for D.N.A. -- again, D.N.A., it takes a minimum -- first of all, we're not going to do D.N.A. on any of the hair we're asking for. We're only asking for the hair for microscopic comparison purposes.

9 Q:

So you don't need any roots?

10 A:

Yes. We need roots for microscopic comparison purposes. It's not a valid sample to be only looking at the shaft and not the entire hair.

11 Q:

My question now is, in reading the book that you've relied on in making your opinion, does it say how many hair samples of roots should be obtained?

12 A:

Well, yes, I believe it did.

13 MS. CLARK:

Objection; vague. For what purpose; microscopic analysis? What is counsel referring to?

14 MICHELE KESTLER:

I believe --

15 THE COURT:

Mr. shapiro, are you referring now to microscopic analysis?

16 MR. SHAPIRO:

Yes, Your Honor.

17 THE COURT:

Thank you.

18 MICHELE KESTLER:

On page 211 -- I believe I've referred to it before -- it says, "ordinarily the hairs should not be cut," which indicates plucking right off. They suggest plucking -- they suggest plucking them all. That's the inference I read here.

19

BY MR. SHAPIRO:

20 Q:

Is that what it says? Would you read that?

21 A:

It says, "known samples -- " these are the known samples "-- should be given careful consideration. If questioned hairs are to be submitted -- " and that's our evidence hairs " -- then the known sample -- " that's what we're asking for " -- should contain representative samples from different parts of the scalp. Ordinarily the hairs should not be cut. Vigorous combing or massaging of the scalp will usually yield 30 to 40 telogen hairs," or essentially adult hairs or viable hairs. "If the questioned sample is thought to contain anagen hairs -- " which is undeveloped hairs " -- then so must the known sample, and these must be plucked." You cannot shake those out.

22 Q:

Does it say how many should be plucked?

23 A:

It says, "ordinarily all the -- " it says, "ordinarily the hairs should not be cut." That's all 30 or 40 of them. And it says here that if you vigorously comb or massage the head, that you should be able to yield 30 or 40 hairs with roots. It's what they're inferring.

24 Q:

So what you're relying upon, then, is that a vigorous massaging of Mr. Simpson's head, along with combing, should give you sufficient sample.

25 A:

That's what that one reference refers to. The reference of preference -- I brought that specifically because of your reference to Dr. Lee this morning. And that's an older reference than the F.B.I. symposium reference, which indicates on page 11, "that these hairs be obtained by both pulling and combing," and they don't give a number. And no, we don't need a lot of roots.

KEY QUOTE
26 Q:

Thank you.

27 MR. SHAPIRO:

Nothing further.

28 MICHELE KESTLER:

But we need more than one.

KEY QUOTE
29 MR. SHAPIRO:

Thank you, nothing further.

30 THE COURT:

Ms. Clark, do you have any further questions?

31 MS. CLARK:

Nothing further.

32 THE COURT:

I have just a couple of questions.

33 MICHELE KESTLER:

Sure, Your Honor.

34 THE COURT:

Do you know approximately how many hairs, typical human head, male human head, contains?

35 MICHELE KESTLER:

No, I do not.

36 THE COURT:

You have no idea at all?

37 MICHELE KESTLER:

It varies. It varies. I mean, just in looking around the room, it varies totally. I didn't mean that to be funny. It varies greatly.

38 THE COURT:

Is there like a minimum typical number of human hairs?

39 MICHELE KESTLER:

No.

40 THE COURT:

All right. In the course of an average day, is there some number of hairs that one loses just through the normal course of the day, combing hair and --

41 MICHELE KESTLER:

Again, there's a random average of what you shed on a daily basis, but you tend to shed dead hairs which don't necessarily contain roots.

42 THE COURT:

So when we're talking about 100 hairs, which is the most that your periodical indicates, is that like a lot of hairs compared to the total number of hairs on a human head?

43 MICHELE KESTLER:

No, it is not. Not on someone with full human hair. I would say someone -- and I don't want to point anyone out in the room, but I would say if someone is balding to an excessive degree, I guess 100 hairs would be a lot, and then you don't have all five areas to pluck from, so you're only going to pluck from areas available. So we're flexible here. That's why we say 30 to 100. We don't say we have to have 100 hairs.

44 THE COURT:

Are there any further questions based on the Court's questions?

45 MR. SHAPIRO:

I don't have any, Your Honor, thank you.

46 MS. CLARK:

Thank you, Your Honor, no.

47 THE COURT:

Ms. Kestler, thank you very much. You may step down.

48 MICHELE KESTLER:

Thank you, Your Honor.

Temperature

routine

Key Quotes (5)

Michele Kestler
No, I have not.
Kestler conceded that she had not read the forensic reference book in its entirety, opening a challenge to the foundation of her opinion.
Michele Kestler
They suggest plucking them all. That's the inference I read here.
Kestler acknowledged that her claim about plucking all the hairs was an inference rather than an explicit numerical instruction in the text.
Michele Kestler
That's what that one reference refers to.
Kestler limited the combing-and-massaging method to one older source and then distinguished it from the FBI guidance favoring both pulling and combing.
Michele Kestler
But we need more than one.
After Shapiro tried to end the examination, Kestler emphasized the central point of her testimony: a single rooted hair would not provide an adequate comparison sample.
Michele Kestler
That's why we say 30 to 100. We don't say we have to have 100 hairs.
Kestler clarified for the court that the requested range was flexible and depended on the amount and distribution of the subject's hair.

Evidence (3)

Informal
A 1983 introductory criminalistics reference book, particularly page 211, addressing representative scalp-hair samples, combing or massaging to obtain 30 to 40 telogen hairs, and when hairs must be plucked.
discussed and quoted
Informal
An FBI symposium reference, page 11, recommending that comparison hairs be obtained by both pulling and combing without specifying a number.
discussed and compared with the older book
Informal
A periodical previously relied upon by Kestler that indicated a maximum collection of 100 hairs and supported a flexible request for 30 to 100 hairs.
discussed

Notable Exchanges (3)

Robert ShapiroMichele Kestler
Shapiro repeatedly asked whether the book specified how many hairs should be plucked. Kestler read the passage aloud but ultimately relied on an inference from its directions concerning 30 to 40 hairs.
strategic
Kathleen Kennedy-PowellRobert ShapiroMarcia Clark
The judge clarified that Shapiro was asking about microscopic analysis, resolving the prosecution's vagueness objection without an express ruling.
procedural
Kathleen Kennedy-PowellMichele Kestler
The court asked whether collecting up to 100 hairs was substantial compared with the hair on a typical male head. Kestler said it generally was not, while explaining that the request could be reduced for a balding person.
clarifying

Light Moments (2)

Michele Kestler
When explaining that the number of hairs varies, Kestler remarked that this was apparent from looking around the courtroom, then clarified, "I didn't mean that to be funny."
Michele Kestler
Kestler cautiously joked that she did not want to point out anyone in the courtroom while explaining that 100 hairs could be substantial for someone who was extensively balding.

Credibility Attacks (1)

⚔ Michele Kestler
challenging the basis of expert opinion
Shapiro established that Kestler had not read the forensic reference book in its entirety and pressed her to distinguish the book's actual wording from her inference that all 30 to 40 hairs should be plucked.

Objections

1 objections (0 sustained, 0 overruled)
Proceeding 9055 • 48 lines • Prosecution witness
Preliminary Trial
Department 103
📂 JUN 30, 1994 📄 Recross-examination of Michele
JUN 30, 1994