DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE

APPEARANCES: (APPEARANCES AS HERETOFORE NOTED.)

(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.)

(CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

THE COURT: BACK ON THE RECORD IN THE SIMPSON MATTER. THE DEFENDANT IS PRESENT WITH HIS COUNSEL. THE PEOPLE ARE REPRESENTED. THE JURY IS NOT PRESENT. WE HAVE A NUMBER OF MATTERS TO TAKE UP BEFORE WE PROCEED WITH THE JURY THIS MORNING. FIRST THE SANCTIONS MOTION BROUGHT BY THE DEFENSE CONCERNING THE LATE DISCLOSURE OF THE VIDEOTAPE THAT WAS DISCLOSED TO THE DEFENSE ON MARCH THE 24TH. AND DEAN UELMEN, I UNDERSTAND YOU ARE GOING TO ADDRESS THAT ISSUE.

MR. UELMEN: YES, YOUR HONOR.

THE COURT: COUNSEL, WHAT CONCERNS THE COURT HERE ARE TWO THINGS:

ONE, ANY CITATION TO THE RECORD WHERE TAPE REQUESTS ARE SPECIFICALLY REQUESTED AND REPRESENTATIONS ARE MADE BY REPRESENTATIVES OF THE PEOPLE REGARDING THE EXISTENCE OR NONEXISTENCE OF THESE TAPES. AND I WOULD LIKE TO HEAR SOME COMMENT BY YOU AS TO THE MATERIALITY OF THE TAPE AND WHETHER OR NOT -- WHETHER OR NOT THERE IS ANY PREJUDICE SUFFERED BY THE DEFENDANT AS A RESULT OF THE LATE DISCLOSURE. I AM INTERESTED IN THOSE TWO ISSUES.

MR. UELMEN: YOUR HONOR, THERE ARE ACTUALLY THREE ITEMS OF CONCERN TO THE DEFENSE WITH RESPECT TO OUR REQUESTS FOR SANCTIONS. AT THE CLOSE OF COURT YESTERDAY, IT WAS OFF THE RECORD, BUT WE NOTED THE PROBLEM THAT AROSE WITH RESPECT TO MR. GOLDBERG'S EXAMINATION OF DENNIS FUNG, AND WE WERE ABLE TO LOCATE THE TRANSCRIPT REFERENCE. ON OCTOBER 5TH --

MS. LEWIS: YOUR HONOR, I'M SORRY, BUT IF THERE IS GOING TO BE SOMETHING INVOLVING MR. GOLDBERG'S QUESTIONING OF THE WITNESS, MAY I HAVE A MOMENT TO GET MR. GOLDBERG DOWN HERE OR WATCHING UPSTAIRS TO MAKE SURE NOTHING IS MISREPRESENTED, SINCE I WASN'T HERE AND I DON'T KNOW WHAT HE WAS TALKING ABOUT?

THE COURT: WELL, COUNSEL, I CAN'T WAIT TO CONDUCT THESE PROCEEDINGS FOR THE ATTORNEYS TO SHUFFLE BACK AND FORTH.

MS. LEWIS: YOUR HONOR, I DON'T KNOW IF THERE WAS ANY NOTICE THAT MR. UELMEN WAS GOING TO ARGUE ANYTHING WITH REGARD TO SANCTIONS.

THE COURT: WELL, WHEN WE LEFT YESTERDAY AFTERNOON IT WAS BROUGHT UP THAT REFERENCE WAS MADE TO ITEMS THAT THE COURT HAD SUPPRESSED AT THE 1538.5, SO CLEARLY THERE IS GOING TO BE SOME SEVERE SANCTION.

MS. LEWIS: ALL RIGHT, YOUR HONOR. I WILL -- I THINK I ACTUALLY MAY BE MORE FAMILIAR THAN MR. GOLDBERG WITH THE SUPPRESSION MOTIONS.

THE COURT: ALL RIGHT. BUT I AM INTERESTED IN TALKING ABOUT THE TAPE SANCTIONS FIRST.

MR. UELMEN: ALL RIGHT. I CAN -- I CAN ADDRESS THAT ISSUE FIRST, YOUR HONOR, AND THEN ADDRESS THE QUESTION OF THE SUPPRESSION AND THE -- ALSO THE INVESTIGATION WITH RESPECT TO THE SHOES. THE VIDEOTAPE WAS FIRST REVEALED ON MARCH 21ST OR 24TH, I'M SORRY, AND OF COURSE THERE WAS A TAPE THAT WAS MADE ON JUNE 13TH. THERE WERE A NUMBER OF INFORMAL REQUESTS THAT WERE NOT ON THE RECORD WITH RESPECT TO THE PRODUCTION OF THIS PARTICULAR VIDEOTAPE, AND AT THE TIME OF THE LATE PRODUCTION OF THE VIDEOTAPE-RECORDED OF MR. SIMPSON BIDDING FAREWELL TO THE BROWN FAMILY, CONCERNS WERE ALSO AGAIN RAISED WITH RESPECT TO THE EXISTENCE OF ANY OTHER VIDEOTAPES, AND A SPECIFIC REQUEST WAS MADE AT THAT TIME, I BELIEVE ON THE RECORD, FOR ANY OTHER VIDEOTAPES IN THE PEOPLE'S POSSESSION THAT HAD NOT BEEN TURNED OVER. I THINK YOU NEED TO PUT THIS IN THE CONTEXT, YOUR HONOR, OF THE IMPORTANCE THAT VIDEOTAPE EVIDENCE HAS ASSUMED IN THIS TRIAL. WE SAW A VERY GOOD EXAMPLE OF THAT WITH RESPECT TO THE PRIOR INCIDENT INVOLVING THE VIDEOTAPE OF THE NIGHT OF THE RECITAL AT THE JUNIOR HIGH SCHOOL WHERE WITNESSES HAD TESTIFIED THAT MR. SIMPSON THAT EVENING WAS HOSTILE AND UNCOMMUNICATIVE, AND THEN WE SAW A VIDEOTAPE FROM WHICH WE COULD MAKE OUR OWN JUDGMENT AND WHICH HE APPEARED TO BE VERY FRIENDLY IN BIDDING AN AFFECTIONATE FAREWELL TO HIS FAMILY AND MEMBERS OF THE BROWN FAMILY. SO THIS EVIDENCE HAS CRUCIAL SIGNIFICANCE IN TERMS OF ALLOWING THE JURY AND THE COURT TO MAKE THEIR OWN JUDGMENTS WITHOUT HAVING DESCRIPTIONS OF EVENTS FILTERED THROUGH THE TESTIMONY OF WITNESSES WHO MAY HAVE BIASES ONE WAY OR THE OTHER. AND IN LIGHT OF THE RECORD OF THE PRIOR FAILURE TO DISCLOSE A VIDEO, THE FAILURE OF THE PROSECUTION TO PRODUCE THIS PARTICULAR VIDEOTAPE UNTIL MARCH 24TH TAKES ON A SPECIAL SIGNIFICANCE, ESPECIALLY THE FACT THAT IT APPEARED AT A POINT IN TIME WHEN IT SOMEHOW SEEMED TO THE PROSECUTION'S ADVANTAGE TO USE THE TAPE. SO THE EXPLANATION THAT THIS WAS INADVERTENTLY MISLAID IS A SOMEWHAT SUSPICIOUS ONE IN VIEW OF THE FACT THAT SUDDENLY IT IS RELOCATED AND BROUGHT INTO COURT AT THE POINT IN TIME WHEN THEY FEEL THERE IS SOME EVIDENTIARY USE THAT CAN BE MADE TO BOLSTER THEIR CASE. AND OF COURSE THE DEFENSE WAS DEPRIVED OF ANY OPPORTUNITY TO USE THIS TAPE IN PRIOR ISSUES THAT WERE BEING LITIGATED BEFORE THIS COURT. AND IN A NUMBER OF RESPECTS WE BELIEVE THAT THAT IRRETRIEVABLY PREJUDICED THE DEFENSE. FIRST OF ALL, THIS TAPE WOULD HAVE BEEN OF SUBSTANTIAL USE IN LITIGATING THE MOTION TO SUPPRESS EVIDENCE BACK IN SEPTEMBER AND IT WOULD ALSO HAVE BEEN QUITE USEFUL IN CROSS-EXAMINING THE DETECTIVES IN CHARGE OF THIS INVESTIGATION, BECAUSE WE HAVE NOTED INCONSISTENCIES BETWEEN THE DESCRIPTION OF THE DISCOVERY OF THE GLOVE, FOR EXAMPLE, IN THE CLOSET OF MR. SIMPSON'S BEDROOM, AS PORTRAYED IN THE TAPE WHERE A SINGLE GLOVE WAS REMOVED, BROUGHT DOWNSTAIRS, PUT ON A TABLE AND APPEARS IN THE VIDEOTAPE. THAT IS NOT THE WAY THAT INCIDENT WAS DESCRIBED IN THE AFFIDAVIT FOR A SEARCH WARRANT WHICH WAS SUBSCRIBED TO UNDER OATH BY DETECTIVE VANNATTER BACK ON JUNE 28TH. AT THAT POINT DETECTIVE VANNATTER SAID -- AND THIS WAS THE PROBABLE CAUSE YOU WILL RECALL TO GO BACK TO MR. SIMPSON'S HOME AND EXECUTE A SECOND SEARCH WARRANT TWO WEEKS AFTER THE EXECUTION OF THE FIRST WARRANT. THE PROBABLE CAUSE INCLUDED THE ALLEGATION THAT:

"ADDITIONALLY, SINCE THE SERVICE OF THE FIRST WARRANT, OTHER OFFICERS PRESENT DURING THAT SERVICE HAVE TOLD YOUR AFFIANT THAT THEY SAW ANOTHER PAIR OF GLOVES INSIDE SIMPSON'S RESIDENCE. THESE OFFICERS HAD ALSO SEEN THE GLOVE FOUND AT THE MURDER LOCATION AND HAVE TOLD YOUR AFFIANT THAT THE GLOVES IN THE RESIDENCE APPEARED TO BE OF THE SAME TYPE AS THE ONE FROM THE CRIME SCENE.

"YOUR AFFIANT WISHES TO SEIZE THE GLOVES LEFT IN THE SIMPSON RESIDENCE BECAUSE THEY WILL TEND TO FURTHER ESTABLISH THAT THE BLOODY GLOVES RECOVERED BELONGED TO SIMPSON IN THAT HE FAVORED THIS TYPE, STYLE AND SIZE OF GLOVE.

"THESE GLOVES WERE INADVERTENTLY LEFT BEHIND AT THE SIMPSON RESIDENCE." NOW, WE BELIEVE THAT CROSS-EXAMINATION, BOTH OF DETECTIVE VANNATTER AND THE DETECTIVES INVOLVED IN FINDING THAT GLOVE, WOULD HAVE DISCLOSED ADDITIONAL MISREPRESENTATIONS IN THE AFFIDAVIT FOR THIS SECOND WARRANT IN THAT THE VIDEOTAPE REVEALS ONE GLOVE WHEREAS THE AFFIDAVIT REFERS TO A PAIR OF GLOVES. THE AFFIDAVIT SAYS THE GLOVES WERE INADVERTENTLY LEFT BEHIND WHEN WE HAVE SINCE BEEN TOLD THAT THE DETECTIVES ACTUALLY CONFERRED WITH THE DETECTIVES IN CHARGE AND MADE A DECISION NOT TO SEIZE THE GLOVE. IT WAS NOT AN INADVERTENT LEAVING BEHIND. THEY ACTUALLY DECIDED BEFORE THEY LEFT THE PREMISES THAT THEY WOULD NOT TAKE THIS GLOVE OR THESE GLOVES, IF THERE ARE TWO. SO HERE WE SEE SIGNIFICANT AREAS FOR CROSS-EXAMINATION THAT THE DEFENSE WAS DEPRIVED OF AT THE MOTION TO SUPPRESS AND IN THE CROSS-EXAMINATION OF THE DETECTIVES BECAUSE WE DID NOT HAVE THIS TAPE. WE DID NOT HAVE THE OPPORTUNITY TO SEE WHAT THIS TAPE PORTRAYS. NOW, CLEARLY THERE IS A PARALLEL I THINK BETWEEN THE FAILURE TO PRODUCE THIS TAPE AND THE FAILURE TO PRODUCE THE TAPE INVOLVED IN THE CROSS-EXAMINATION OF ROSA LOPEZ, BECAUSE IN BOTH CASES YOUR HONOR HAS BEEN PRESENTED WITH A VERY SIMILAR EXPLANATION, THAT A DETECTIVE INADVERTENTLY MISLAID THE TAPES AND THAT COUNSEL WERE NOT AWARE THAT THE TAPES WERE IN EXISTENCE AND THAT IS PRECISELY THE EXPLANATION WE ARE HEARING NOW FROM THE -- FROM THE PROSECUTION. DESPITE THAT EXPLANATION, IN THE CASE OF THE ROSA LOPEZ TAPE, YOUR HONOR CONCLUDED THAT SEVERE SANCTIONS WERE WARRANTED AND THOSE SANCTIONS INCLUDED FINES IMPOSED AGAINST BOTH LAWYERS, A REQUIREMENT OF IMMEDIATE CORRECTIVE ACTION TO CATALOGUE ALL OF THE STATEMENTS OF WITNESSES AND INDICATE WHEN THEY WERE TURNED OVER TO COUNSEL, AND A PROPOSAL TO INSTRUCT THE JURY THAT THE FAILURE TO PRODUCE THIS TAPE COULD BE CONSIDERED IN ASSESSING THE CREDIBILITY OF THE WITNESS. WE BELIEVE THAT IF THE COURT IS GOING TO BE EVENHANDED IN THE ADMINISTRATION OF SANCTIONS, THAT PRECISELY THE SAME SANCTIONS ARE WARRANTED HERE; THAT YOUR HONOR SHOULD ORDER CORRECTIVE ACTION BE IMMEDIATELY TAKEN TO REQUIRE THAT THE PROSECUTION IMMEDIATELY CATALOGUE ALL VIDEOTAPES IN THEIR POSSESSION OR IN THE POSSESSION OF THE POLICE WITH A DESCRIPTION OF THOSE TAPES AND AN ACCOUNT OF WHEN THEY WERE TURNED OVER TO THE DEFENSE. SECONDLY, WE HAVE PROPOSED A JURY INSTRUCTION THAT CLOSELY PARALLELS THE INSTRUCTION THAT YOUR HONOR PROPOSED TO GIVE WITH RESPECT TO THE TESTIMONY OF ROSA LOPEZ, INFORMING THE JURY THAT:

"THE LAWS GOVERNING CRIMINAL PROCEDURE IN CALIFORNIA REQUIRE DISCLOSURE OF EVIDENCE IN ADVANCE, THAT THE REASON THESE LAWS EXIST IS TO PROMOTE THE ASCERTAINMENT OF TRUTH TO SAVE COURT TIME AND AVOID THE NECESSITY FOR INTERRUPTIONS AND POSTPONEMENTS, THAT THE DELAY IN THE PRODUCTION OF THIS TAPE FROM JUNE 13TH UNTIL MARCH 24TH WAS A VIOLATION OF THE LAW AND THE CAUSE OF DELAYS IN THIS TRIAL DURING THE WEEK OF MARCH 27TH, AND THAT THE JURY MAY CONSIDER THE EFFECT, IF ANY, OF THIS DELAY IN DISCLOSURE UPON THE CREDIBILITY OF THE WITNESSES INVOLVED IN THE GATHERING OF EVIDENCE ON JUNE 13TH." THAT WOULD CLOSELY PARALLEL WHAT THE COURT ORDERED IN THE CASE OF THE ROSA LOPEZ TAPE. THE SECOND ISSUE THAT IS OF CONCERN TO THE DEFENSE WITH RESPECT TO SANCTIONS INVOLVES THE VERY LATE PRODUCTION, AGAIN ON MARCH 24TH, OF 238 PAGES OF INVESTIGATIVE MATERIAL RELATING TO THE PROSECUTION'S ATTEMPT TO IDENTIFY LOCATIONS IN WHICH SHOES MATCHING THE SHOEPRINT LEFT AT THE -- AT THE CRIME SCENE WERE SOLD.

THIS INVESTIGATION TOOK PLACE IN AUGUST AND SEPTEMBER OF LAST YEAR, AND APPARENTLY THE PROSECUTION DELIBERATELY DECIDED THAT THEY WOULD NOT TURN OVER ANY OF THIS INVESTIGATIVE MATERIAL UNTIL THEIR INVESTIGATION HAD BEEN COMPLETED. SO ALL AT ONCE ON MARCH 24TH THE DEFENSE IS HANDED 238 PAGES OF MATERIAL, MUCH OF WHICH IS IN A FOREIGN LANGUAGE. THERE ARE -- THERE IS CORRESPONDENCE IN THAT FILE IN JAPANESE AND ITALIAN THAT WE ARE GOING TO HAVE TO GET TRANSLATED. WE ARE GOING TO HAVE TO CONDUCT SOME FOLLOW-UP INVESTIGATION OURSELVES. AND WE BELIEVE ONCE AGAIN WE HAVE AN EXAMPLE OF THE PROSECUTION SIMPLY WITHHOLDING VITAL EVIDENCE UNTIL IT IS TOO LATE FOR THE DEFENSE TO DO ANY INVESTIGATION OF THEIR OWN. WE BELIEVE THAT AT A MINIMUM THE COURT SHOULD DELAY THE PRESENTATION OF ANY EVIDENCE RELATING TO THE IDENTIFICATION OF FOOTPRINTS UNTIL THE END OF THE TRIAL, THAT THE COURT SHOULD REQUIRE IMMEDIATE DISCLOSURE OF ANY FOLLOW-UP INVESTIGATION. WE NEED TO KNOW JUST AS QUICKLY AS POSSIBLE WHAT THE NET RESULTS OF ALL OF THIS WERE, WHETHER THEY ARE GOING TO BE PRESENTING ANY EVIDENCE IDENTIFYING THE SOURCE OF ANY -- ANY SHOES, AND WE NEED TO KNOW THAT RIGHT NOW SO WE CAN BEGIN TO PREPARE TO CROSS-EXAMINE.

THE COURT: DON'T YOU ALREADY KNOW THAT?

MR. UELMEN: WE --

THE COURT: THE RESULTS OF THE FBI TESTING ON THE SHOEPRINTS WERE TURNED OVER TO YOU WITHIN A DAY OF THE COURT RECEIVING IT FROM THE FBI.

MR. UELMEN: WHAT WE ARE TALKING ABOUT HERE, YOUR HONOR, IS THE EFFORT TO CONNECT THAT PARTICULAR SHOE PATTERN WITH THE SALE OF SHOES AT PARTICULAR LOCATIONS. I MEAN, THIS REALLY RELATES TO THE EFFORT OF THE PROSECUTION TO TRY TO TIE THAT SHOE TO MR. SIMPSON. WE ARE NOT AWARE OF ANY EVIDENCE THAT IN ANY WAY CONNECTS SHOES OF THIS NATURE WITH MR. SIMPSON, AND IF THEY ARE GOING TO PUT ON ANY SUCH EVIDENCE, ENGAGE IN ANY ATTEMPT OR INFERENCE TO SUGGEST THAT SHOES OF THIS TYPE WERE PURCHASED BY MR. SIMPSON, WE NEED TO KNOW ABOUT THAT AND WE NEED TO BE PREPARED TO MEET THAT EVIDENCE. AND AT THIS POINT WE HAVE SEEN NOTHING, WE HAVE HEARD NOTHING, EXCEPT THIS 238 PAGES OF MATERIAL THAT WAS TURNED OVER JUST ONE WEEK AGO. SO WE WOULD ASK AT A MINIMUM THAT THE PRESENTATION OF THIS EVIDENCE BE DELAYED AND WE BE GIVEN ANY FOLLOW-UP INVESTIGATION THAT CAME IN ITS WAKE. THE THIRD ITEM, YOUR HONOR, RELATES TO THE DIRECT EXAMINATION OF MR. FUNG AT THE CLOSE OF OUR PROCEEDINGS YESTERDAY, AND AS I MENTIONED, WE HAVE LOCATED IN THE TRANSCRIPT THE COURT'S RULING ON OCTOBER 5TH, 1995, PAGES.

THE COURT: '94.

MR. UELMEN: PAGES 2395 TO 2396 OF THE TRANSCRIPT, AND HERE I'M READING FROM THE STATEMENT OF THE COURT:

"ALL RIGHT. SEARCH WARRANT NO. 2, ITEMS 15 AND 16, THE TICKET RECEIPT AND BAGGAGE TAG, AND I THINK MR. UELMEN WAS CORRECT, I THINK THE PROSECUTION HAS THE BURDEN AS TO THESE TWO ELEMENTS.

"MISS CLARK: THAT'S CORRECT, YOUR HONOR. WITH RESPECT TO ITEMS 15 AND 16, THE PROSECUTION WILL NOT BE SEEKING TO ADMIT THEM.

"THE COURT: ALL RIGHT. THEN WE WILL TAKE ITEMS 15 AND 16 AND NOTE THAT THEY WILL NOT BE OFFERED. THE REPRESENTATION IS THAT THEY WILL NOT BE OFFERED. IN THE EVENT THAT POSITION SHOULD CHANGE, THEN THE DEFENSE IS ENTITLED TO A DE NOVO HEARING ON THE 1538 DURING TRIAL IF THAT BECOMES NECESSARY."

AND YESTERDAY, IN VIOLATION OF THAT AGREEMENT, MR. GOLDBERG ELICITED FROM MR. FUNG TESTIMONY WITH RESPECT TO THE SEIZURE OF BOTH OF THESE ITEMS, THE AIRLINE TICKET RECEIPT AND THE BAGGAGE TAG. WE BELIEVE THAT THIS IS A VERY EGREGIOUS VIOLATION OF COUNSEL'S DUTY TO DELIBERATELY ELICIT TESTIMONY AND EVIDENCE THAT THE PROSECUTION AGREED WOULD NOT BE OFFERED, IN FRUSTRATION OF THE DEFENDANT'S RIGHTS TO SEEK SUPPRESSION OF THAT EVIDENCE. AND WE BELIEVE, ONCE AGAIN, THAT SEVERE SANCTIONS ARE WARRANTED, INCLUDING THE GIVING OF AN INSTRUCTION TO THE JURY, AND WE HAVE FASHIONED A PROPOSED INSTRUCTION. WE WOULD PROPOSE THAT THE COURT INSTRUCT THE JURY AS FOLLOWS:

"THE LAWS GOVERNING CRIMINAL PROCEDURE IN CALIFORNIA REQUIRE THE EXCLUSION OF EVIDENCE THAT WAS UNLAWFULLY ACQUIRED BY THE POLICE. THESE LAWS EXIST TO PROTECT THE PRIVACY OF ALL CITIZENS BY DETERRING UNLAWFUL POLICE CONDUCT. PRIOR TO THE TRIAL OF THIS CASE THE PROSECUTION REPRESENTED THAT SOME ITEMS OF EVIDENCE WOULD NOT BE OFFERED IN THE TRIAL AND THE COURT WITHHELD A RULING WHETHER THEY WERE LAWFULLY ACQUIRED.

"DURING THE TESTIMONY OF MR. FUNG THE PROSECUTION VIOLATED THEIR AGREEMENT AND YOU MAY CONSIDER THE EFFECT, IF ANY, OF THIS VIOLATION UPON THE CREDIBILITY OF MR. FUNG AND GIVE TO IT THE WEIGHT TO WHICH YOU FEEL IT IS ENTITLED."

YOUR HONOR WILL NOTE THAT THIS INSTRUCTION CLOSELY PARALLELS THE INSTRUCTION THAT THE COURT PROPOSES TO GIVE WITH RESPECT TO ROSA LOPEZ. WE ALSO FEEL THAT A FINE WOULD BE APPROPRIATE AS A SANCTION IN THIS CASE AS WELL. NOW, YOUR HONOR, IN THE MOVING PAPERS, WITH RESPECT TO SANCTIONS, THE DEFENSE HAS MADE A PROPOSAL TO IN EFFECT CALL OFF THIS ESCALATING WAR OF SANCTIONS WHICH IS FREQUENTLY CHARACTERIZED BY HYPERBOLE AND OVERDRAMATIZATION AND PERSONAL VITUPERATION AND SIMPLY PUT OVER TO THE END OF THIS TRIAL, AFTER ALL OF THE EVIDENCE IS IN, ALL THE ISSUES WITH RESPECT TO WHAT PUNITIVE SANCTIONS ARE WARRANTED IN THIS CASE. WHILE THE COURT MUST OF COURSE IMMEDIATELY ADDRESS QUESTIONS ABOUT NEEDS FOR DELAY IN THE PRESENTATION OF EVIDENCE OR ARGUMENTS WITH RESPECT TO THE TOTAL PRECLUSION OF EVIDENCE, WE ALSO BELIEVE THAT PRECLUSION IS NOT A REMEDY THAT IS GOING TO BE SERIOUSLY CONSIDERED WITH RESPECT TO ANY EVIDENCE IN THIS CASE, THAT THE COURT WILL MORE OFTEN BE DEALING WITH ISSUES INVOLVING FINES AND RETALIATORY JURY INSTRUCTIONS. OF COURSE WE ARE HOPEFUL THAT THE COURT WILL NEVER HAVE TO DEAL WITH ANY OF THESE ISSUES AGAIN, BUT THAT -- THAT HOPE CERTAINLY HAS NOT BEEN WARRANTED UP UNTIL NOW. WE BELIEVE THERE WOULD BE THREE VERY GOOD ADVANTAGES TO THE COURT IN PUTTING THESE ISSUES OVER. FIRST OF ALL, IT COULD EXPEDITE THE PRESENTATION OF THE EVIDENCE TO THE JURY WHICH IS SEQUESTERED AND AVOID THE INTERRUPTIONS AND DISTRACTIONS OF ARGUMENTS ABOUT SANCTIONS THAT SEEM TO BE COMING UP WITH -- WITH RECURRING FREQUENCY, BUT MORE IMPORTANT, IT WOULD ALLOW THE COURT TO ASSESS THE ISSUE OF PREJUDICE, THE ISSUE OF WILLFULNESS, AND MOST IMPORTANT, THE ISSUE OF THE EXTENT TO WHICH JURY INSTRUCTIONS OF THIS NATURE MIGHT UNDERMINE THE RELIABILITY OF THE TRUTH FINDING PROCESS IN THE CONTEXT OF THE ENTIRE TRIAL, IN THE CONTEXT OF WHAT THE DEFENSE HAS DONE, WHAT THE PROSECUTION HAS DONE, WHAT PATTERN OF WILLFULNESS EMERGES AND WHAT DEGREE OF PREJUDICE EMERGES IN THE CONTEXT OF THE ENTIRE TRIAL. I THINK IT IS INTERESTING THAT IN THE FEW APPELLATE CASES CONSIDERING SANCTIONS PURSUANT TO CALIFORNIA'S RECIPROCAL DISCOVERY LAW, THERE HAVE BEEN SOME REVERSALS OF THE IMPOSITION OF SANCTIONS, BUT THE APPELLATE COURT HAS THE VIRTUE OR THE ADVANTAGE OF LOOKING AT THE EFFECT OF THE SANCTIONS IN THE CONTEXT OF THE ENTIRE TRIAL AND HOW THOSE SANCTIONS AFFECTED THE FACT-FINDING PROCESS THAT WAS ULTIMATELY HANDED TO THE JURY. THERE IS NO REASON ON EARTH WHY A TRIAL COURT SHOULD NOT HAVE THE SAME ADVANTAGE AND SHOULD NOT BE ABLE TO LOOK AT THIS WHOLE QUESTION OF SANCTIONS IN THE CONTEXT OF WHAT IMPACT IT HAD THROUGHOUT THE TRIAL BEFORE THE FINAL INSTRUCTIONS ARE GIVEN TO THE JURY. AND IF YOUR HONOR FEELS THAT INSTRUCTIONS ARE NECESSARY, THOSE INSTRUCTIONS CAN THEN BE INCORPORATED INTO THE FINAL INSTRUCTIONS TO THE JURY. WE BELIEVE THAT THE THIRD ADVANTAGE THIS WOULD GIVE THE COURT IS EVENHANDEDNESS, THAT YOUR HONOR WOULD BE ABLE TO ASSESS THE RELATIVE CULPABILITY OF THE DEFENSE AND THE PROSECUTION AT THE SAME TIME AND BALANCE THE SCALE OF WHAT SANCTIONS ARE APPROPRIATE WITH RESPECT TO EACH SIDE. IN THAT RESPECT THEN WE WOULD REQUEST THAT YOUR HONOR WITHDRAW THE ORDER THAT YOU ENTERED ON MARCH 1ST WITH RESPECT TO SANCTIONS RELATING TO THE ROSA LOPEZ TAPE AND SIMPLY PUT OVER THIS QUESTION OF SANCTIONS TO THE END OF THE TRIAL AND ADDRESS ALL QUESTIONS OF PUNITIVE SANCTIONS AND RETALIATORY INSTRUCTIONS AT THAT TIME. BUT IF YOUR HONOR IS NOT SO DISPOSED AND FEELS THAT EACH SANCTION ISSUE SHOULD BE ADDRESSED AS IT OCCURS, WE WOULD ALTERNATIVELY REQUEST THE INSTRUCTIONS THAT WE HAVE ASKED FOR WITH RESPECT TO THE JUNE 13TH VIDEOTAPE, WITH RESPECT TO THE ELICITATION OF EVIDENCE THAT THE PROSECUTION AGREED WOULD NOT BE OFFERED AND SHOULD IMPOSE FINES AS SANCTIONS.

THE COURT: THANK YOU, COUNSEL. MISS LEWIS.

MS. LEWIS: YOUR HONOR, GOOD MORNING.

THE COURT: GOOD MORNING.

MS. LEWIS: YOUR HONOR, I BELIEVE THIS AREA OF DISCOVERY VIOLATIONS AND SANCTIONS NEED A REALITY CHECK AND THAT REALITY CHECK HAS TO BE BASED ON THE DISCOVERY LAWS, BECAUSE AS THOSE DISCOVERY LAWS POINT OUT:

"THE ONLY ORDERS REQUIRING DISCOVERY THAT SHALL BE MADE IN CRIMINAL CASES ARE AS PROVIDED IN THIS CHAPTER." NOW, THE PROVISION OF THE PENAL CODE 1054.1 REQUIRES THAT:

"PROSECUTING ATTORNEY TO DISCLOSE TO THE DEFENSE A VARIETY OF MATERIALS, BUT THE -- THE PREFACE TO THE DISCLOSURE OF THESE MATERIALS IS THAT THEY MUST BE DISCLOSED IF IT IS IN THE POSSESSION OF THE PROSECUTING ATTORNEY OR IF THE PROSECUTING ATTORNEY KNOWS IT TO BE IN THE POSSESSION OF THE INVESTIGATING AGENCIES."

THE DEFENSE HAS FAILED TO EVEN MAKE THAT THRESHOLD SHOWING WHICH IS REQUIRED BEFORE ANY OF THESE OTHER ISSUES, WHETHER IT IS MATERIAL, WHETHER IT IS BRADY OR SO FORTH, EVEN BECOMES OF ISSUE. THEY HAVE FAILED TO MAKE THAT THRESHOLD SHOWING. THESE -- IT IS UNCONTROVERTED THAT WE DID NOT KNOW ABOUT THIS TAPE UNTIL MARCH 24TH. IT IS UNCONTROVERTED WE NOT HAVE THIS TAPE IN OUR POSSESSION.

THE COURT: MISS LEWIS, THE PROBLEM, THOUGH, IS THROUGHOUT THIS LITIGATION IT HAS BEEN BROUGHT UP THAT THE DEFENSE SAYS WE KNOW THERE IS ANOTHER VIDEOTAPE BECAUSE WE HAVE INFORMATION FROM THE NEWS PHOTOGRAPHERS THAT THERE WAS SOME POLICE PHOTOGRAPHER VIDEOTAPING. WHERE IS THE VIDEOTAPE?

MS. LEWIS: YOUR HONOR --

THE COURT: THE REPRESENTATION WAS MADE THAT IT DIDN'T EXIST. THAT IS THE FACTUAL BASIS.

MS. LEWIS: WELL, THE BASIS IS WE MADE INQUIRY. I WAS PERSONALLY PRESENT WHEN INQUIRY WAS MADE OF THE LEAD DETECTIVES IN THE CASE AND THEY WERE UNAWARE OF ITS EXISTENCE -- EXCUSE ME -- AND THEREFORE DID -- TOLD US THAT NOTHING EXISTED, AND IT IS CLEAR WHY THEY WERE UNAWARE OF IT EXISTENCE, BECAUSE ALL OF THE EVIDENCE ELICITED YESTERDAY SUPPORTS THAT THIS WAS A TAPE MADE SOLELY FOR ADMINISTRATIVE CIVIL LIABILITY PURPOSES. THE TAPE IS -- NOT ONLY DETECTIVE HARPER, DETECTIVE LUPER, THE VIDEOGRAPHER AND MR. ADKINS, THE SUPERVISOR, ALL TESTIFIED THAT THAT WAS THEIR UNDERSTANDING OF THE PURPOSE OF THIS TAPE, BUT THE TAPE IS SELF-AUTHENTICATING IN THAT REGARD. IT DOES NOT SHOW THE PATHWAY WHERE THE GLOVE WAS RECOVERED FROM, IT DOES NOT SHOW THE BLOOD DROPS ON THE DRIVEWAY. IT FOCUSES EXTENSIVELY, I COUNTED ABOUT FOUR TO FIVE MINUTES, ON ALL THE TROPHIES AND VALUABLES WITHIN THE TROPHY ROOM. IT SHOWS THE FURNITURE WITHIN THE RESIDENCE AND IT SHOWS THE CARS WITHIN THE GROUNDS OF THE RESIDENCE AND IT SHOWS ALL OF THESE ITEMS OF VALUE AND IT EVEN SHOWS THE ONLY DAMAGE OR APPARENT DAMAGE WHICH WAS THESE TWO BLOOD DROPS ON THE LIGHT WOOD FLOOR, ALSO FOR CIVIL LIABILITY PURPOSES.

THE COURT: BUT DOESN'T THAT CONTRADICT THE TESTIMONY REGARDING WHEN THOSE BLOOD DROPS WERE COLLECTED?

MS. LEWIS: I DON'T KNOW WHY YOUR HONOR FEELS IT DOES. THERE IS -- I DON'T SEE ANY CONTRADICTION IN THAT, YOUR HONOR. THERE IS NO ITEM NUMBERS SHOWN NEXT TO THOSE BLOOD DROPS, SO PRESUMABLY THEY WERE COLLECTED PRIOR TO THIS VIDEOTAPE BEING SHOT. I DON'T SEE A CONTRADICTION.

THE COURT: WELL, IF THEY ARE STILL THERE, HOW ARE THEY COLLECTED?

MS. LEWIS: I IMAGINE IT IS BLOOD STAINS. I DON'T THINK IT CAN BE COMPLETELY REMOVED FROM THAT LIGHT-COLORED WOOD FLOOR.

THE COURT: I ASSUME THOSE LIGHT-COLORED WOOD FLOORS HAVE A SEALER ON THEM.

MS. LEWIS: WELL, I DON'T THINK WE CAN ASSUME THINGS LIKE THAT, YOUR HONOR.

THE COURT: WELL, I STOOD ON THE FLOOR, COUNSEL.

MS. LEWIS: WELL, I DID AS WELL, AND FRANKLY, I DON'T RECALL WHETHER IT SEEMED TO HAVE A SEAL OR NOT, BUT I THINK THAT IS A BIG LEAP TO MAKE TO SAY THAT BECAUSE A TINY PORTION OF THIS VIDEO SHOWS WHAT TURNS OUT TO BE CRIMINAL EVIDENCE OR EVIDENCE RELATING TO THE CRIMINAL INVESTIGATION IN THE CASE, THEREFORE THIS VIDEO BECOMES MATERIAL IN ANY CONSTITUTIONAL SENSE OR IN ANY SENSE AT ALL IN TERMS OF DEFENSE DISCOVERY.

THE COURT: WELL, THE PROBLEM I HAVE, THOUGH, MISS LEWIS IS, IS THIS:

THE REQUEST WAS MADE SEVERAL TIMES BY DEFENSE COUNSEL THAT THEY KNEW OR HAD REASON TO BELIEVE THAT THIS TAPE EXISTED AND THEY ASKED SEVERAL TIMES FOR IT AND WE GOT REPRESENTATIONS BACK SEVERAL TIMES IT DOESN'T EXIST.

MS. LEWIS: YOUR HONOR --

THE COURT: NOW, WE FIND IT EXISTS.

MS. LEWIS: IT WAS OUR BELIEF THAT IT DID NOT EXIST AND IT IS UNDERSTANDABLE HOW THAT HAPPENED, SINCE IT WAS MADE FOR THIS PURELY ADMINISTRATIVE PURPOSE AND WAS PLACED BY DETECTIVE LUPER, WHO HAS NOT BEEN PART OF THE DISCOVERY PROCESS, IS NOT ONE OF THE LEAD DETECTIVES IN THE CASE, WAS PLACED BY HIM IN A FILE CABINET BECAUSE -- AND HE ONLY THOUGHT OF IT WHEN IT BECAME KNOWN TO HIM THAT HE WAS GOING TO BE TESTIFYING IN THE CASE. SO THAT IS WHEN HE THOUGHT OF IT, THAT IS WHEN IT OCCURRED TO HIM TO LOOK FOR AIDS THAT MIGHT BE USEFUL IN REFRESHING HIS RECOLLECTION DURING HIS TESTIMONY. HE THOUGHT OF IT, HE BROUGHT IT TO THE ATTENTION OF THE LEAD DETECTIVES. THEY IMMEDIATELY TOLD US, WE IMMEDIATELY HAD IT COPIED, AS SOON AS OUR LAB WAS AVAILABLE. IT WAS A FRIDAY I BELIEVE THAT WE DISCOVERED IT AND WE TURNED IT OVER THE FOLLOWING MONDAY. IT MAY BE UNFORTUNATE THAT THIS TAPE WAS NOT DEPICTED SOONER, BUT THERE IS AN ADDITIONAL POINT TO BE MADE. WHEN YOU TALK ABOUT DEFENSE PREJUDICE, EVEN ASSUMING IT WAS DISCOVERABLE -- AND IT WAS NOT, YOUR HONOR, AND I DON'T CARE IF THEY MADE SPECIFIC REQUESTS, IF WE HAD NOT PLANNED -- NOW THAT WE KNOW ABOUT THIS TAPE, WE WOULD LIKE TO USE PART OF IT. WE WOULD LIKE TO HAVE HAD IT MONTHS AGO AND USED PART OF IT IN VARIOUS OTHER HEARINGS, BUT EVEN AT THIS POINT IN TIME, IF WE DID NOT INTEND TO USE THAT TAPE AT TRIAL, IT WOULD NOT BE DISCOVERABLE. I DON'T CARE IF THEY PERSONALLY REQUESTED IT OR MADE A SPECIFIC REQUEST FOR IT. THIS IS NOT BRADY MATERIAL. AND IN FACT UNDER BRADY THERE NEED NOT BE A SPECIFIC REQUEST MADE, SO THAT WHEN WE ARE TALKING ABOUT SANCTIONS, YOUR HONOR, AND WE ARE TALKING ABOUT IMPOSING SANCTIONS ON THE PROSECUTION, THAT IS A SERIOUS ALLEGATION AND A SERIOUS MATTER. AND IT WAS SERIOUS FOR THE DEFENSE AND IT IS SERIOUS FOR US, BUT WE ARE IN A DIFFERENT CONTEXT THAN THE DEFENSE WAS IN THE ROSA LOPEZ MATTER. I'M GOING TO TALK ABOUT THAT IN A MOMENT. WE ARE IN A SITUATION WHERE WE HAD NO OBLIGATION TO PROVIDE THIS DISCOVERY. IF WE HAD KNOWN ABOUT IT, WE WOULD HAVE. OF COURSE IT WOULD HAVE BEEN USEFUL IN EXAMINING THE WITNESS, IT WOULD HAVE BEEN USEFUL DURING DIRECT EXAMINATION, NOT JUST CROSS-EXAMINATION BY THE DEFENSE. WE WOULD HAVE LIKE TO HAVE HAD THIS VIDEO, BUT WE DID NOT, AND THE FACT THAT WE DO HAVE DISCOVERED IT NOW IS SIMPLY TO EVERYONE'S BENEFIT. IT DOESN'T MEAN THAT THERE WAS ANY PREJUDICE INURED TO THE DEFENSE. THEY FAILED TO SHOW ANY PREJUDICE WHATSOEVER IN NOT HAVING IT. AND ALONG THOSE LINES, THE PHOTOGRAPHS THAT THE DEFENSE HAS HAD IN THEIR POSSESSION FOR MONTHS ARE ACTUALLY MUCH BETTER EVIDENCE, AS DETECTIVE LUPER, I BELIEVE IT WAS, ALLUDED TO WHEN HE TESTIFIED YESTERDAY, BECAUSE THE PHOTOGRAPHS SHOW THIS EVIDENCE WHEN IT WAS RECOVERED, AFTER IT WAS RECOVERED. IT SHOWS ALL THESE BLOOD DROPS. IT SHOWS EVERYTHING IN BETTER DETAIL BECAUSE THOSE PHOTOGRAPHS WERE TAKEN INDEED FOR CRIMINAL INVESTIGATION PURPOSES UNDER -- PERHAPS UNDER SUBDIVISION (C) OF PENAL CODE SECTION 1054.1. THOSE ARE REAL EVIDENCE INTENDING AND SHOT FOR THE PURPOSE OF CRIMINAL INVESTIGATION PURPOSES. SO THOSE PHOTOGRAPHS WERE DISCOVERABLE, THEY WERE TURNED OVER, THEY ARE CERTAINLY THE BEST RECORDATION, MUCH BETTER THAN THIS VIDEO, OF ALL OF THE CRIME SCENE EVIDENCE. AND THE LOCATIONS WHERE ITEMS WERE RECOVERED, THE PHOTOGRAPHS SHOW THE PATHWAY, THE GLOVE AND SO FORTH. THEY SHOW THE CRIMINAL ASPECTS OF THIS CASE. THEY DON'T SHOW ALL THE VALUABLE -- HEISMAN TROPHY AND ALL THE OTHER VALUABLE TROPHIES THAT THE DEFENDANT HAD BECAUSE THOSE WERE NOT PART OF THE CRIMINAL INVESTIGATION IN THIS CASE AND THERE WAS NO REASON FOR THOSE STILL PHOTOGRAPHS TO DEPICT THEM. THE ONLY THING THAT IS SHOWN ON THE VIDEOTAPE, WHICH IS NOT SHOWN IN THESE CRIME SCENE PHOTOS THAT MIGHT HAVE HAD SOME SIGNIFICANCE, WAS THE LINEN CLOSET WHICH WAS FINGERPRINT DUSTED, BUT AS DETECTIVE LUPER TESTIFIED YESTERDAY, NO FINGERPRINTS WERE RECOVERED. THERE WAS NOTHING OF EVIDENTIARY SIGNIFICANCE ABOUT THE LINEN CLOSET AND I DON'T BELIEVE THE COURT HAS HEARD ANY TESTIMONY, I DON'T RECALL IN THE MONTHS I HAVE BEEN INVOLVED IN THIS CASE, ANY TESTIMONY HAVING TO DO WITH THE LINEN CLOSET BECAUSE THERE HAS BEEN NOTHING RELEVANT ABOUT IT. SO THERE IS NOTHING ON THIS VIDEOTAPE THAT IS NOT BETTER DEPICTED, MUCH BETTER DEPICTED WITHIN THE PHOTOGRAPHS THE DEFENSE HAS HAD FOR MONTHS. NOW, YOUR HONOR, THE ROSA LOPEZ SITUATION IS ENTIRELY DIFFERENT. THE DEFENSE, UNDER PENAL CODE SECTION 1054.3 SUBDIVISION (A) REQUIRES THE LAW -- I SHOULD SAY REQUIRES THE DEFENSE TO TURN OVER THE STATEMENTS OF WITNESSES THEY INTEND TO CALL AT TRIAL, RECORDED STATEMENTS, RECORDED IN ANY MANNER. ROSA LOPEZ WAS ON THE DEFENSE SEPTEMBER 1ST, 1994, WITNESS LIST, SO THEIR INTENTION TO CALL HER AT TRIAL WAS CLEAR AND PRESENT FOR MONTHS BEFORE THAT TAPE WAS DISCOVERED. NOW, WE HAVE A -- THE DEFENSE WOULD LIKE TO DRAW US INTO THIS -- THE SAME SITUATION AS THEY ARE IN, BUT WE ARE NOT. THE DISCOVERY STATUTE, WHEN IT TALKS ABOUT IF IT IS IN THE POSSESSION OF THE PROSECUTING ATTORNEY OR IF THE PROSECUTING ATTORNEY KNOWS IT TO BE IN THE POSSESSION OF THE INVESTIGATING AGENCIES, UNDER 1054.1, WHICH IS THE STATUTE THAT COVERS OUR OBLIGATION, MAKES THAT CRITICAL DISTINCTION BETWEEN US AND THE POLICE.

THE COURT: DO YOU THINK UNDER 1054.1 THAT A REASONABLE INTERPRETATION CREATES AN OBLIGATION FOR THE PROSECUTION TO MAKE REASONABLE INQUIRY AND DILIGENT SEARCH FOR THESE ITEMS?

MS. LEWIS: WE DID, YOUR HONOR. WE DID. WE WANTED --

THE COURT: I'M NOT ASKING YOU WHETHER OR NOT YOU DID. DO YOU AGREE THAT A REASONABLE INTERPRETATION OF THAT CODE SECTION REQUIRES INQUIRY TO BE MADE?

MS. LEWIS: YES, YES, I THINK THAT IS A REASONABLE INTERPRETATION OF THAT CODE SECTION, BUT UNLIKE THAT SECTION, THE DEFENSE -- THE SECTION GOVERNING THE DEFENSE OBLIGATIONS, DISCOVERY OBLIGATIONS, MAKES NO DISTINCTION BETWEEN THE DEFENSE ATTORNEYS AND THE DEFENSE INVESTIGATORS AND THAT IS CLEAR WHY. THE POLICE DEPARTMENT IS A SEPARATE AGENCY, A SEPARATE ENTITY. IT IS NOT EVEN A COUNTY DEPARTMENT; IT IS A CITY DEPARTMENT. WE ARE IN TOTAL DIFFERENT FORMS OF GOVERNMENT OR TOTALLY DIFFERENT BUREAUCRACIES. WE DON'T PAY THE POLICE, WE DON'T ORDER THE POLICE AROUND. THE POLICE AREN'T BEHOLDEN TO THE D.A.'S WE DON'T PAY THEIR SALARIES. THEY HAVE SIMILAR GOALS IN TERMS OF SOME SIMILAR PROSECUTION, SO OF COURSE WE WORK IN CONJUNCTION, BUT IT IS A DIFFERENT SITUATION WHEN YOU LOOK AT THE DEFENSE SIDE OF THE TABLE. THEIR DEFENSE INVESTIGATORS ARE EMPLOYED DIRECTLY BY THEM. THEY DO TAKE ORDERS DIRECTLY FROM THEM, AND IF MOST -- AND THAT DISTINCTION IS RECOGNIZED IN THE DISCOVERY STATUTES BY THE FAILURE OF THE STATUTE GOVERNING DEFENSE DISCOVERY TO MAKE ANY DISTINCTION BETWEEN THE DEFENSE ATTORNEYS AND THEIR INVESTIGATORS. SO WHEN IT CAME TO THE ROSA LOPEZ TAPE, THE DEFENSE ATTORNEYS WERE CHARGED WITH THE KNOWLEDGE OF THAT TAPE THAT MR. PAVELIC HAD IN HIS POSSESSION. NOT SO WITH US AND THAT IS NOT SO BECAUSE OF THE EXPRESS TERMS OF THE STATUTE. SO WE ARE TALKING ABOUT APPLES AND ORANGES. AND IN ADDITION OF COURSE THE DEFENSE -- WHEN IT COMES TO THE CIVIL LIABILITY ASPECT OF THIS PARTICULAR VIDEOTAPE, WE -- THE D.A.'S OFFICE WOULDN'T BE SUED IF THE POLICE HAD SEEN TO HAVE DONE SOMETHING TO CAUSE DAMAGE TO THOSE PREMISES. THE LOS ANGELES POLICE DEPARTMENT WOULD BE SUED AND THEY HAVE BEEN SUED. AND THEY DO HAVE THE CHOICE NOW. THE DETECTIVES HAVE THE CHOICE OF RECORDING EITHER BY VIDEOTAPE OR BY STILL PHOTOS LOCATIONS WHERE SEARCH WARRANTS ARE EXECUTED TO MAKE SURE THAT THEY HAVE GOT A RECORD OF THAT IN CASE OF A LATER SUIT. I'M SURE THE COURT IS AWARE THE DEPARTMENT IS SUED ALL THE TIME, SO THEY HAVE DIFFERENT -- THEY HAVE DIFFERENT ADMINISTRATIVE LIABILITIES AND PROBLEMS THAN DOES THE D.A.'S OFFICE. I GUESS WE GET OUR OWN LAWSUITS IN SOME RESPECTS, BUT CERTAINLY NOTHING TO DO WITH THE EXECUTION OF SEARCH WARRANTS. AND YOUR HONOR, THE DEFENSE KEEPS TALKING ABOUT THIS RECITAL TAPE. THERE WERE -- WE ARE NOT TALKING ABOUT THE RECITAL TAPE ANY MORE. THE COURT MADE INQUIRY ABOUT THAT, THE JUNE 12TH RECITAL THAT THE DEFENDANT ATTENDED. THE COURT MADE INQUIRY.

WE DIDN'T KNOW WE HAD IT. APPARENTLY -- I DON'T REMEMBER EXACTLY HOW THAT CAME ABOUT BECAUSE I WASN'T PERSONALLY INVOLVED WITH THAT, BUT WHEN WE FOUND IT, WE TURNED IT OVER. IT CERTAINLY WAS NOT MATERIAL EVIDENCE, AND THE COURT HAS TO CONSIDER THAT THIS, AS I SAID, EVEN --

THE COURT: MISS LEWIS, HOW CAN YOU SAY THAT IT IS NOT MATERIAL EVIDENCE WHERE THE PROSECUTION'S THEORY IS THAT THERE WAS THIS TENSION AND ANGER EXPRESSED BY THE DEFENDANT ON THE DATE IN QUESTION AT THE DANCE RECITAL AND THAT HE WAS GLOWERING AT PEOPLE AND WAS IN A STATE OF -- EMOTIONAL STATE OF MIND, AND YET WE SEE HIM GREETING THE BROWN -- SAYING GOOD-BYE TO THE BROWN FAMILY AND SMILING AND GREETING HIS CHILDREN? I MEAN, THAT IS DIRECTLY CONTRADICTORY TO -- TO THE TESTIMONY OF THE PROSECUTION WITNESS, SO HOW CAN YOU SAY THAT THAT WASN'T MATERIAL?

MS. LEWIS: TO THE CONTRARY, YOUR HONOR. IT DIRECTLY SUPPORTS THE ENTIRE PROSECUTION THEORY. WHEN MR. SIMPSON WAS INSIDE THAT AUDITORIUM, WHEN HE WASN'T IN THE PUBLIC DOMAIN WHERE PEOPLE WOULD BE LOOKING AT HIM, HE IS THINKING ABOUT OTHER THINGS, THAT IS WHEN THE WITNESS TESTIFIED AS TO THOSE EXPRESSIONS. WHEN HE GOT OUTSIDE, HE WAS AWARE AND GREETING PEOPLE AND WAS AWARE. THAT BECAME HIS PUBLIC PERSONA, AND AS MR. DARDEN TOLD THE JURY DURING OPENING STATEMENT, THIS MAN HAS TWO PERSONAS; HE HAS THE PUBLIC FACE AND HE HAS THE PRIVATE FACE.

THE COURT: ALL RIGHT. LET'S MOVE ON TO THE FBI SHOEPRINT MATTERS.

(BRIEF PAUSE.)

MS. LEWIS: THE DEFENSE, YOUR HONOR, HAS STILL FAILED TO SHOW HOW THESE MATERIALS FALL UNDER THE DISCOVERY LAWS. AS I INDICATED TO THE COURT THE OTHER DAY WHEN THIS WHOLE ISSUE FIRST CAME UP, THESE MATERIALS ARE BASICALLY CORRESPONDENCE, THEY ARE MATERIALS SENT OUT BY THE FBI TO MANUFACTURERS AN IN AN EFFORT TO INVESTIGATE THIS WHOLE SHOE AREA.

THE COURT: DO YOU PLAN ON CALLING BILL BODZIAK?

MS. LEWIS: YES.

THE COURT: AREN'T THESE HIS WORK MATERIALS AND HIS REPORTS AND HIS EFFORTS OF INVESTIGATION.

MS. LEWIS: THESE ARE INVESTIGATIVE EFFORTS. I WOULD CALL THEM INVESTIGATIVE EFFORTS, AND THEY HAVE NOW BEEN TURNED OVER, BUT YOU KNOW, THE INVESTIGATION IS ONGOING. WE MAY NOT HAVE SEEN THE END OF THE SHOE EVIDENCE. IT IS ONGOING TODAY AS WE SPEAK. THERE ARE -- THERE ARE PEOPLE INVESTIGATING THIS AREA, AND YOU KNOW, I DON'T WANT TO FILL THE COURT IN ON THE DETAILS, BUT --

THE COURT: WELL, THE PROBLEM I HAVE, THOUGH, IS THAT THESE RECORDS GO BACK TO AUGUST OF 1994.

MS. LEWIS: THESE ARE NOT RECORDS.

THE COURT: LETTERS AND CORRESPONDENCE.

MS. LEWIS: YOUR HONOR, THESE ARE NOT RECORDS. LET'S MAKE THAT CLEAR. THESE ARE NOT THE REPORTS OF EXPERTS AND THEY ARE NOT EVEN EXPERT'S NOTES. IT IS CORRESPONDENCE AS PART OF THE INVESTIGATION. I WOULD INVITE THE COURT TO TAKE A LOOK AT WHAT WE ARE TALKING ABOUT BECAUSE THIS MATERIAL CLEARLY DOES NOT FALL UNDER THE DISCOVERY -- UNDER DISCOVERY LAWS. WE HAVE CHOSEN TO MAKE IT AVAILABLE, YOU KNOW, GIVE IT TO THE DEFENSE, BUT EVEN THE COVER LETTER FROM THE FBI INDICATES THAT THEY:

"HAVE REVIEWED ALL THE DISCOVERY REQUESTS DIRECTED TO THE FBI, UNLESS OTHERWISE NOTICED, HAVE COMPLIED WITH EACH OF THEM, EVEN THOUGH MANY ARE CLEARLY OUTSIDE THE NORMAL SCOPE OF DISCOVERY."

THAT IS THE LETTER FROM MR. SHAPIRO, THE GENERAL COUNSEL FOR THE FBI, SO HE IS SAYING WE ARE GOING TO GIVE YOU EVERYTHING, EVEN THOUGH IT IS OUTSIDE THE NORMAL COURSE OF DISCOVERY. AND AS MR. GOLDBERG ACTUALLY POINTED OUT THE OTHER DAY, BECAUSE WE HAVE BEEN SO GENEROUS IN THIS CASE, AND I'M NOT SURE HE POINTED IT OUT, I WON'T LAY IT ON HIM, BUT I WILL MAKE THE POINT, BECAUSE WE HAVE BEEN SO GENEROUS IN THIS CASE AND GOING THROUGH HOOPS AND PROVIDING THE DEFENSE WITH INCREDIBLE AMOUNT OF DISCOVERY WAY BEYOND WHAT WE ARE EVER REQUIRED UNDER THE LAW TO DO, NOW, THEY ARE TURNING AROUND AND TRYING TO SLAP US IN THE FACE WITH IT. WE HAVE GIVEN THEM TOO MUCH. THE STUFF IS NOT EVEN DISCOVERABLE. IF WE HAD NOT GIVEN IT TO THE, THEY WOULD NOT HAVE NOT KNOWN ABOUT IT. HERE THEY HAVE IT WEEKS IN ADVANCE TO ANY EVIDENCE COMING ON WITH REGARD TO THE SHOES. THEY HAVE IT WHEN WE DON'T EVEN HAVE TO GIVE IT AND WE GAVE IT TO THEM AS AN EXTRA COURTESY. LET'S GO BACK, YOUR HONOR, AS WE HAVE MADE THE POINT IN PREVIOUS MOTIONS, WE DID PROVIDE I THINK IT IS OVER 23,000, OR MAYBE MORE BY NOW, PAGES OF DISCOVERY, HUNDREDS OF VIDEOTAPES, AUDIOTAPES, ET CETERA.

THE COURT: LET ME ASK YOU THIS, MISS LEWIS: I ONLY WAS PROVIDED WITH A FEW WHAT WERE DEEMED BY THE DEFENSE TO BE REPRESENTATIVE PIECES OF THAT 238 PAGES OF MATERIAL REGARDING THE SHOES FROM THE FBI WHICH SEEM TO INDICATE A SEARCH TO IDENTIFY THAT PARTICULAR SOLE PATTERN IS MY RECOLLECTION OF WHAT I READ. HAVE YOU IDENTIFIED, TO YOUR KNOWLEDGE, THAT SHOE PATTERN?

MS. LEWIS: WE HAVE IDENTIFIED THE SHOE PATTERN, YES, AS -- AS BEING THAT OF A BRUNO MALI SHOE -- BRUNO MAGLI.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MS. LEWIS: INDEED, YOUR HONOR, THE DEFENSE WAS PROVIDED WITH THE REPORTS AND THE FINAL DISCOVERY AND WHAT IS DISCOVERABLE. THESE -- YOU KNOW, WHEN IT COMES TO EXPERTS, NOT THE WHOLE WORLD IS DISCOVERABLE. AS THE COURT KNOWS, THE COURT DID A LENGTHY IN CAMERA. I AM ASSUMING THAT WE PROSECUTORS DID NOT GET EVERY BIT OF INFORMATION. I'M SURE THE COURT MADE A CAREFUL EVALUATION IN DETERMINING WHAT WAS DISCOVERABLE AND WHAT WAS NOT, AND IN THIS CASE IT WAS OBVIOUS TO US CLEARLY THAT THIS IS MATERIAL WHICH IS NOT READILY DISCOVERABLE, IT IS NOT PROVIDED, AND WE DID PROVIDE THE BOTTOM LINE REPORTS WITH REGARD TO THOSE SHOEPRINTS.

THE COURT: WHAT I WAS GETTING AT IS -- IS -- MISS LEWIS, IS WHAT MATERIALITY -- WHAT IS THE MATERIALITY OF THE ITEMS THAT WERE TURNED OVER? WHAT IS THERE?

MS. LEWIS: THERE IS NO MATERIALITY OF THE ITEMS THAT WERE TURNED OVER. I WOULD BE HAPPY TO LODGE -- THIS HAPPENS TO BE OUR ONLY COPY, BUT WE CAN MAKE A COPY OR I COULD LODGE OUR ORIGINALS.

THE COURT: ALL RIGHT. WOULD YOU HAVE YOUR STAFF MAKE A PHOTOCOPY OF THAT AND LODGE IT WITH THE COURT SO I CAN READ IT.

MS. LEWIS: I WILL BE HAPPY TO DO THAT AND WILL DO THAT, YOUR HONOR.

(BRIEF PAUSE.)

THE COURT: ALL RIGHT. WOULD YOU ADDRESS THE TESTIMONY OF MR. FUNG REGARDING ITEMS THAT WERE WITHDRAWN BY THE PROSECUTION.

MS. LEWIS: I WILL, YOUR HONOR. I HAD ONE FINAL POINT I WANTED TO MAKE. I WANTED THE COURT TO BE AWARE THAT IT IS THE FAVORITE LANGUAGE IN THE AGURS CASE WAS NOT OVERRULED BY THE BAGLEY CASE AS THE DEFENSE, MR. THORNTON -- THOMPSON, I'M SORRY -- MR. THOMPSON, THE DEFENSE ATTORNEY, MADE THE REPRESENTATION THE OTHER DAY. BAGLEY, THE BAGLEY CASE REAFFIRMS AGURS AND TALKS ABOUT WHEN SOMETHING IS CONSIDERED CONSTITUTIONALLY MATERIAL, BUT EVEN IN THE BAGLEY CASE IT WAS UNDISPUTED THAT THE MATERIAL WAS BRADY MATERIAL THAT WAS AT ISSUE IN THIS CASE. THERE WERE CONTRACTS WITH THE PROSECUTION WITNESSES AS FAR AS WHAT PAYMENT THEY WOULD RECEIVE DEPENDING ON HOW MUCH INFORMATION THEY GAVE, SO THAT WAS CLEARLY OBVIOUSLY BRADY MATERIAL, BUT THERE HAS TO BE A SHOWING OF CONSTITUTIONAL MATERIALITY, YOUR HONOR, FOR SOMETHING TO BE DISCOVERABLE UNDER BRADY, AND THERE IS NOTHING EVEN COME CLOSE TO THAT IN THIS VIDEOTAPE.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MS. LEWIS: AND I WILL REITERATE THE POINT THAT THE STILL PHOTOGRAPHS SHOW BETTER EVERYTHING THAT THE VIDEO SHOWS, SHOW BETTER BECAUSE IT SHOWS NOT ONLY DURING THE EARLIER TIME --

THE COURT: COUNSEL, YOU HAVE MADE THAT POINT ALREADY.

MS. LEWIS: I MISSED --

THE COURT: WHAT I'M INTERESTED IN --

MS. LEWIS: WITH THE COURT'S PERMISSION, SINCE I WASN'T PRESENT YESTERDAY AND I KNOW WHAT THE ISSUE IS, BUT MR. GOLDMAN WOULD LIKE TO ADDRESS THE COURT WITH REGARD TO MR. FUNG'S TESTIMONY.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MR. GOLDBERG: GOOD MORNING, YOUR HONOR.

THE COURT: GOOD MORNING, MR. GOLDBERG.

MR. GOLDBERG: JUST TO CLARIFY THE RECORD, I THINK TO MY RECOLLECTION IT WAS MR. SCHECK THAT MADE THE COMMENT ABOUT AGURS BEING RECALLED. I NODDED AT THE INAPPROPRIATE TIME WHILE MISS LEWIS WAS LOOKING TO ME FOR AFFIRMATION. I THINK IT WAS HE AND NOT MR. THOMPSON, SO I DID NOT WANT TO HAVE THE COURT MISLED IN THAT REGARD, NOT THAT IT IS THAT PARTICULARLY IMPORTANT. ON THE ISSUE OF THE TESTIMONY BY MR. FUNG, THIS IS A SITUATION, YOUR HONOR, WHERE THE PROSECUTION, IMMEDIATELY UPON REALIZING -- SPECIFICALLY ME -- UPON REALIZING THAT THAT QUESTION SHOULD NOT HAVE BEEN ASKED, BECAUSE IT WAS ELICITING INFORMATION THAT HAD BEEN SUPPRESSED, INSTANTLY AGREED WITH THE DEFENSE THAT IT SHOULD NOT HAVE BEEN ASKED, IT SHOULD NOT HAVE BEEN ELICITED, AND MISS CLARK AGREED. SO THIS DID NOT REQUIRE ANY ARGUMENT, IT DID NOT REQUIRE LOOKING AT THE TRANSCRIPT, AND I JUST DON'T UNDERSTAND WHY DEAN UELMEN WOULD FEEL THAT IT IS NECESSARY TO GO BACK AND ARGUE, FROM A LEGAL PERSPECTIVE, SOMETHING THAT WE HAD IMMEDIATELY CONCEDED, UNLESS HE IS INTERESTED IN SIMPLY THE PUBLIC EXCORIATION OF THE PROSECUTION OR IN THIS CASE OF ME. I JUST DON'T UNDERSTAND THE NECESSITY OF THAT. I WOULD AGREE WITH THE DEAN THAT THERE HAS BEEN AN ESCALATION IN TERMS OF REQUESTS FOR SANCTIONS, PERHAPS BECAUSE THE DEFENSE, IN OUR VIEW, WAS LEGITIMATELY SANCTIONED FOR SOME VERY SERIOUS DISCOVERY VIOLATIONS IN INSTANCES WHERE THERE WAS AT LEAST CIRCUMSTANTIAL EVIDENCE, STRONG CIRCUMSTANTIAL EVIDENCE, I BELIEVE IN THE COURT'S OPINION, THAT THERE WAS EITHER INTENTIONAL OR NEGLIGENT MISREPRESENTATIONS THAT WERE MADE BEFORE THIS COURT REGARDING ISSUES THAT WENT RIGHT TO THE CREDIBILITY OF MATERIAL WITNESSES.

THE COURT: WELL, LET'S PUT THOSE OTHER ISSUES ASIDE AS BEING APRICOTS AND ORANGES AT THIS POINT.

MR. GOLDBERG: WELL, THAT --

THE COURT: MY INTEREST HERE IS GIVEN THE AGREEMENT OF THE PROSECUTION TO WITHDRAW THOSE ITEMS, HOW DID THIS HAPPEN?

MR. GOLDBERG: WELL, YOUR HONOR, THE WAY THAT IT HAPPENED IS VERY SIMPLE. I WAS NOT HERE WHEN THAT HAPPENED. AS THE COURT KNOWS, I WAS A, RELATIVELY SPEAKING, RECENT ADDITION TO THE PROSECUTION IN THIS CASE.

THERE ARE A LARGE NUMBER OF ISSUES THAT WERE LITIGATED AND I DID NOT KNOW ABOUT THAT. IT WAS NOT COMMUNICATED TO ME. IT WAS AN ERROR. IT WAS A MISTAKE. WE MADE A MISTAKE.

THE COURT: DOESN'T THE PROSECUTION HAVE SOME OBLIGATION WITHIN THE TEAM MEMBERS TO COMMUNICATE WITH EACH OTHER AND ORGANIZE THE PRESENTATION OF THIS CASE?

MR. GOLDBERG: OF COURSE, YOUR HONOR, AND WE HAVE DONE THAT, BUT DOES THE COURT HONESTLY BELIEVE, I WOULD ASK THIS QUESTION RHETORICALLY, THAT I AM GOING TO ASK MISS CLARK WERE THE AIRLINE TICKETS SUPPRESSED? I MEAN, OF COURSE I HAVE BEEN COMMUNICATING WITH HER ABOUT MY PRESENTATION OF THE CASE AND ALL THE TACTICAL ISSUES AND HOW WE ARE GOING TO PRESENT IT. I THINK THAT YOUR HONOR RECOGNIZES THAT, BUT NO, I DID NOT ASK HER WHETHER THE AIRLINE TICKETS WERE SUPPRESSED, AND IF I SHOULD HAVE, AND I FAILED TO, THEN I MADE A MISTAKE, BUT I DID NOT ASK THAT QUESTION.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MR. GOLDBERG: I'M SORRY, THEY WERE NOT SUPPRESSED, THEY WEREN'T LITIGATED, AS MISS LEWIS JUST POINTED OUT. WHAT I WOULD SAY ON THIS ISSUE, THAT MY SOLE REASON FOR ASKING THAT QUESTION IS NOT BECAUSE I THOUGHT THERE WAS ANYTHING RELATIVE OR MATERIAL, PER SE, ABOUT THEM, BUT I SIMPLY WANTED TO GET THE SEQUENCE OF EVENTS, PARTICULARLY AS IT RELATED TO DETECTIVE VANNATTER GIVING THE BLOOD VIAL TO MR. FUNG. I WANTED TO BE VERY CAREFUL IN TERMS OF OUR PRESENTATION OF THAT PART OF THE EVIDENCE AND WHAT SEQUENCE OF EVENTS OCCURRED AND WHAT PIECES OF EVIDENCE HE COLLECTED JUST BEFORE HE LEFT AND RECEIVED THAT VIAL. THE AIRLINE TICKETS THEN, IT WOULD SEEM TO ME, BASED UPON WHAT THE JURY HAS HEARD OF THIS, IF ANYTHING, WOULD BE SOMETHING THAT WOULD BE SOMEWHAT FAVORABLE TO THE DEFENSE, THAT IT WOULD SEEM TO INDICATE THAT THE TRIP WAS A PLANNED ONE, AS OPPOSED TO BEING UNPLANNED, SO IT CERTAINLY DOESN'T HAVE ANY EVIDENTIARY VALUE IN TERMS OF THE CONTENTS OF THE EVIDENCE, AS OPPOSED TO THE TIMING SEQUENCE AS FAR AS THE PEOPLE ARE CONCERNED. AND FROM A LEGAL PERSPECTIVE, THE ISSUE OF AN INSTRUCTION TO THE JURY I RAISED, WHAT I WOULD POINT OUT TO THIS COURT IS THAT IT IS A WELL-RECOGNIZED PRINCIPLE OF LAW THAT UNLESS AN OBJECTION IS LODGED, THE OBJECTION -- THE OBJECTION IS WAIVED AND THERE WAS NO OBJECTION BY COUNSEL. I DON'T KNOW. THEY HAVEN'T EVEN REPRESENTED TO THE COURT IN GOOD FAITH THAT THEY DIDN'T INTEND TO INTRODUCE THE EVIDENCE THEMSELVES, THE AIRLINE TICKETS. SO THEY DIDN'T OBJECT TO IT, THEY DIDN'T DO ANYTHING UNTIL THEY DISCUSSED IT AT SIDE BAR WITH YOUR HONOR AND WITH MISS CLARK AND MYSELF.

THE COURT: AT THE END OF THE DAY.

MR. GOLDBERG: AT THE END OF THE DAY, BUT THEY DIDN'T OBJECT AT THE TIME, AT THE TIME WHEN AN OBJECTION COULD HAVE BEEN SUSTAINED TO THE QUESTION AND AT A TIME WHEN ANY EVIDENCE COULD HAVE BEEN PRECLUDED. SO LEGALLY SPEAKING, I THINK THAT WE WOULD BE ENTITLED TO TAKE THE POSITION FROM A LEGAL STANDPOINT THAT THERE IS NOTHING MORE FOR THE COURT TO DO. THAT IS NOT THE POSITION I'M TAKING. IF THE COURT WANTS TO ADMONISH -- IF THE DEFENSE WANTS THIS, THAT THAT QUESTION AND THAT ANSWER IS STRUCK, WE WOULD BE -- WE WOULD CONCEDE THAT THAT IS AN APPROPRIATE WAY OF HANDLING IT. LEGALLY IT MAY NOT BE NECESSARY, BUT WE WOULD CONCEDE THAT THAT IS AN APPROPRIATE THING FOR THE COURT TO DO, BUT TO GIVE AN INSTRUCTION OF THE KIND THAT MR. UELMEN IS PROPOSING DOESN'T MAKE ANY SENSE.

AND THE ONLY REASON THAT I COMPARED THIS ALLEGED VIOLATION TO CERTAIN OF THE OTHER VIOLATIONS THAT MR. UELMEN DISCUSSED IS BECAUSE HE DREW A COMPARISON AND HE WAS ANALOGIZING TO THE INSTRUCTION THAT THE COURT WAS PROPOSING TO GIVE FOR THE ROSA LOPEZ INCIDENT. AND THEY ARE NOT ANALOGOUS, BECAUSE WHAT HAPPENED IN THE ROSA LOPEZ INCIDENT IS THAT THE PROSECUTION WAS DEPRIVED OF -- UNTIL THE LAST MINUTE -- MATERIALS THAT WERE VERY SIGNIFICANT IN TERMS OF THE CROSS-EXAMINATION AND THE CREDIBILITY OF THAT WITNESS. THERE HAS BEEN NO ANALOGOUS VIOLATION BY THE PROSECUTION WITH RESPECT TO THAT. WHAT HAS HAPPENED WITH MR. FUNG IS I ASKED HIM A QUESTION THAT HE HAD ABSOLUTELY NO WAY OF KNOWING WAS IMPROPER AND HE ANSWERED IT AS HE IS REQUIRED TO DO AS A WITNESS. IT IN NO WAY REFLECTS UPON HIS CREDIBILITY. IT IN NO WAY REFLECTS OR DIMINISHES THE CAPACITY OF THE DEFENSE ATTORNEYS TO CROSS-EXAMINE MR. FUNG EFFECTIVELY OR DEPRIVES THEM OF MATERIALS TO MAKE THE CROSS-EXAMINATION EFFECTIVE OR DEPRIVES THEM OF THE OPPORTUNITY TO HAVE A SUFFICIENT PERIOD OF TIME TO EXAMINE THOSE MATERIALS. SO YOU ARE NOT DEALING WITH ANY OF THE PROBLEMS THAT YOU ARE IN THE CASE OF ROSA LOPEZ WHERE DISCOVERY WAS HELD BACK ON SOME VERY IMPORTANT STATEMENTS THAT SHE MADE THAT WE USED FOR THE PURPOSES OF IMPEACHMENT. I DON'T KNOW WHETHER THE COURT WANTS ME TO ADDRESS THE ISSUE OF FINES. I WILL IF THE COURT WANTS TO HEAR ABOUT THAT.

THE COURT: WELL, IT IS SOMETHING THAT MIGHT HAPPEN, SO THIS IS YOUR CHANCE TO SAY SOMETHING.

MR. GOLDBERG: OKAY. AS TO THE ISSUE OF FINES, FIRST OF ALL, IN THE CRIMINAL CONTEXT THERE IS NO STATUTORY AUTHORITY FOR THE IMPOSITION OF FINES TO THE SAME EXTENT THAT THERE IS IN CIVIL CONTEXT. IT HAS BEEN A WHILE SINCE I PRACTICED ANY CIVIL LAW, BUT THE CODE OF CIVIL PROCEDURE DOES PROVIDE FOR THE IMPOSITION OF FINES FOR A WIDE VARIETY OF THINGS, IN ADDITION TO DISCOVERY VIOLATIONS. I BELIEVE THAT A COURT IN A CIVIL HEARING CAN FINE COUNSEL FOR MAKING FRIVOLOUS MOTIONS. PERHAPS SOME VIEWERS OF THIS CASE WISH THAT THE COURT HAD THE AUTHORITY TO DO THAT HERE, BUT THERE IS CASE LAW TO INDICATE THAT THE CODE OF CIVIL PROCEDURE SECTIONS DEALING WITH FINES COULD NOT APPLY IN THE CONTEXT OF A CRIMINAL CASE. WHAT WE DO HAVE NOW, IN THE POST-PROPOSITION 115 CONTEXT, IS A SPECIFIC PROVISION IN 1054 FOR FINES FOR DISCOVERY VIOLATIONS, BUT THAT IS IT, SO LEGALLY THERE IS NO BASIS FOR FINES OUTSIDE OF THAT AREA, UNLESS THE COURT WERE TO HOLD THE PROSECUTION OR ME IN CONTEMPT AND THEN TO FINE ME THAT WAY. BUT OTHER THAN THAT, THERE IS NO AUTHORITY FOR THE IMPOSITION OF A FINE.

THE COURT: DON'T YOU THINK I HAVE AUTHORITY UNDER CCP 177.5, THE COURT HAVING ORDERED THAT BEFORE ANY NEW MENTION WAS MADE BY THE PROSECUTION THAT NOTICE WAS TO BE GIVEN TO THE DEFENSE AND THAT THEY WERE THEN ENTITLED TO A DE NOVO 1538.5?

MR. GOLDBERG: NO. THAT IS WHAT I'M SAYING, IS I DON'T BELIEVE THAT THE CODE OF CIVIL PROCEDURE SECTIONS APPLY IN A CRIMINAL CONTEXT WITH RESPECT TO FINES.

THE COURT: WELL, THE CASE LAW IS PRETTY CLEAR THAT I HAVE AUTHORITY UNDER 177.5 TO IMPOSE FINES.

MR. GOLDBERG: I WOULD HAVE TO LOOK THAT UP THEN, YOUR HONOR, BECAUSE I THOUGHT I READ A CASE SEVERAL YEARS BACK THAT SAID THAT THE COURT DID NOT, BUT I MAY BE MISTAKEN ABOUT THAT, SO I DON'T WANT TO REPRESENT SOMETHING BASED UPON MY RECOLLECTIONS OF THE CASE THAT I READ A VERY LONG TIME AGO.

THE COURT: JUST SO YOU UNDERSTAND IT IS MY POSITION THAT I HAVE THE ABILITY TO IMPOSE SANCTIONS UP TO 1500 BUCKS.

MR. GOLDBERG: OKAY.

THE COURT: AND I FEEL COMFORTABLE WITH THAT.

MR. GOLDBERG: OKAY. IF THE COURT WERE INCLINED TO DO SO, I WOULD LIKE AN OPPORTUNITY TO GO BACK AND FIND THAT CASE, BECAUSE I DO HAVE IT IN MY COMPUTER. UNFORTUNATELY IT IS AT HOME AND I DID NOT KNOW THAT COUNSEL WAS GOING TO BE ASKING FOR FINES. BECAUSE WHEN WE HAD OUR LITTLE DISCUSSION IT SEEMED LIKE MR. COCHRAN, AND I THINK MAYBE MR. SHAPIRO WAS THERE, FELT THAT THIS WAS NOT A MAJOR DEAL AND THAT A LOT MORE IS BEING MADE OF IT THAN WAS YESTERDAY EVENING. THE OTHER THING I WOULD SAY ON THE ISSUE OF FINES HAS TO DO MORE WITH A PRACTICE IN OUR LEGAL COMMUNITY THAN WITH THE ACTUAL LAW, AND THAT IS THAT I WOULD LIKE TO POINT OUT THAT THE PROSECUTION DID NOT REQUEST FINES OF THE DEFENSE ATTORNEYS IN THIS CASE AS A RESULT OF THE DISCOVERY VIOLATIONS AND THERE ARE A NUMBER OF REASONS THAT WE DIDN'T DO SO. AND I AM NOT IN ANY WAY CRITICIZING THE IMPOSITION OF FINES BY THIS COURT, BUT IT IS OUR FEELING THAT IT IS NOT APPROPRIATE IN THAT KIND OF A SITUATION FOR AN ADVOCATE TO ASK FOR FINES AGAINST ANOTHER ADVOCATE, EVEN FOR SOMETHING THAT AMOUNTS TO AN INTENTIONAL OR RECKLESS MISREPRESENTATION, AND THAT WAS OUR REASON FOR NOT DOING SO. I'M NOT IN ANY WAY COMMENTING UPON THE IMPOSITION OF FINES BY YOUR HONOR. WE ARE JUST SAYING WHAT OUR POSITION WAS AND WHY WE DIDN'T ASK FOR IT. I BELIEVE, BASED UPON MY PRACTICE, THAT THERE IS AN UNWRITTEN RULE THAT FINES ARE GENERALLY NOT IMPOSED AND GENERALLY NOT REQUESTED BY CRIMINAL PRACTITIONERS IN OUR LOCAL LEGAL COMMUNITY.

THE COURT: BUT IT IS A SANCTION THAT THE COURT HAS AVAILABLE TO IT TO MAINTAIN ORDER IN THE COURT AND TO MAINTAIN RESPECT FOR THE ORDERS THAT THE COURT MAKES, SO IT IS A SANCTION THAT THE COURT USES; NOT NECESSARILY AT THE REQUEST OF THE PARTIES.

MR. GOLDBERG: WELL, I WAS JUST EXPLAINING TO YOUR HONOR WHY WE DID NOT REQUEST IT AND I AM ALSO EXPLAINING WHY WE ARE SOMEWHAT SURPRISED BY THE FACT THAT DEAN UELMEN HAS REQUESTED THIS AND WHY -- AND SOMEWHAT SURPRISED BY THE FACT THAT THE DEFENSE HAS REQUESTED IT IN GENERAL.

THE COURT: WELL, THEY DIDN'T LIKE THE FINES THAT THEY GOT. THAT IS THE BASIS FOR THAT. I UNDERSTAND THAT.

MR. GOLDBERG: I AM JUST SAYING THAT WE DID NOT ASK FOR THEM AND I WAS POINTING THAT OUT. YES, YOUR HONOR IS RIGHT, YOU DO HAVE THE CAPACITY TO MAINTAIN ORDER, BUT WHAT I WOULD SUGGEST ON THAT ISSUE IS HOW IS IT GOING TO MAINTAIN ORDER OF THIS COURT BY IMPOSING A FINE? HOW IS IT GOING TO DETER ANY FUTURE VIOLATION OF SOMETHING THAT WE ARE ENTIRELY UNAWARE OF AND THAT A REASONABLE PERSON WOULD NOT HAVE MADE INQUIRY INTO? YOU KNOW, YES, I DID DISCUSS MY ASPECT OF THE CASE WITH MISS CLARK, BUT AS I SAID, YOUR HONOR, I DID NOT ASK SPECIFICALLY WHETHER THE AIRLINE TICKETS HAD BEEN SUPPRESSED, AND IF THE COURT IS CONCERNED ABOUT DETERRING FUTURE INCIDENCES OF THIS KIND, I DON'T SEE HOW THE COURT CAN DETER THAT KIND OF UNINTENTIONAL MISTAKE. IT IS NOT THE FIRST MISTAKE THAT HAS BEEN MADE IN THIS CASE. IT WON'T BE THE LAST. THERE ARE GOING TO BE OTHER ISSUES THAT COME UP BY BOTH SIDES. I THINK WE KNOW THAT AND THAT IS A FAIR STATEMENT BASED UPON WHAT HAS HAPPENED HERETOFORE. SO I WOULD ASK THE COURT TO CONSIDER ALL THOSE ISSUES, BUT MORE IMPORTANTLY, ON THE ISSUE OF AN INSTRUCTION, BECAUSE THAT WOULD ADVERSELY IMPACT THE INTERESTS OF OUR CLIENT, THE PEOPLE, AND ADVERSELY IMPACT THE CREDIBILITY OF THIS WITNESS IF THE COURT WERE TO GIVE ANY INSTRUCTION OF THE KIND THAT MR. UELMEN HAS PROPOSED. THAT IS SIMPLY ENTIRELY UNFOUNDED FROM A LEGAL PERSPECTIVE, FROM A COMMON SENSE PERSPECTIVE. IT IN NO WAY RELATES TO THIS WITNESS' CREDIBILITY. THAT INFORMATION THAT WAS AGREED NOT TO BE ELICITED, WAS PUT BEFORE THE COURT, AND WE WOULD ASK THE COURT SIMPLY TO TELL THE JURY THAT THE QUESTION AND THE ANSWER TO THE QUESTION ARE STRICKEN.

THE COURT: ALL RIGHT. DEAN UELMEN, TEN MINUTES.

MR. UELMEN: THANK YOU. LISTENING TO THE RESPONSE OF COUNSEL WAS SOMEWHAT OF A DEJA VU EXPERIENCE. WE WERE HEARING LOTS OF ECHOES OF THE ARGUMENT THAT PRECEDED THE COURT'S IMPOSITION OF SANCTIONS AGAINST THE DEFENSE, THE I-WASN'T-THERE DEFENSE. I RECALL THAT MR. COCHRAN'S DECLARATION TO THE COURT INDICATED THAT HE CAME INTO THE CASE LATER, THAT HE DID NOT DIRECT THE ACTIVITY OF MR. PAVELIC AS HIS EXPLANATION OF WHY HE WASN'T AWARE THAT THE TAPE EXISTED WITH RESPECT TO ROSA LOPEZ, THAT WE DIDN'T KNOW IT EXISTED BEFORE.

THE COURT: WELL, LET'S NOT RELITIGATE THAT ISSUE.

MR. UELMEN: ALL RIGHT. THERE WAS ONE THING THAT WASN'T ECHOED, YOUR HONOR, AND THAT WAS ANY EXPRESSION OF CONTRITION, NO APOLOGY. IN FACT, DEFIANCE. IN FACT, THE SUGGESTION BEING MADE THAT WE HAVE BEEN OVERLY GENEROUS IN WHAT WE'VE TURNED OVER TO THE DEFENSE. YOUR HONOR, THERE IS AN ATTITUDE PROBLEM HERE, AND FRANKLY, THE RESPONSE OF THE PROSECUTION, I THINK SHOULD CREATE GREATER ALARM FOR THE COURT. IT CERTAINLY CREATES GREATER ALARM FOR US THAN EXISTED PRIOR TO HEARING WHAT THEY HAD TO SAY. I MEAN, THE SUGGESTION THAT WHATEVER THE POLICE HAD IN THEIR FILE CABINETS, WE HAVE NO RESPONSIBILITY TO INQUIRE INTO EXCEPT TO ASK THEM IF THEY HAVE IT, THAT THIS IS NOT BRADY MATERIAL, THAT EVIDENCE OF THE SIGNIFICANCE OF THE -- OF THE VIDEOTAPE OF MR. SIMPSON'S DEMEANOR ON THE DAY THAT THE MURDER TOOK PLACE, THREE HOURS BEFORE THE MURDER TOOK PLACE, THAT THAT IS NOT BRADY MATERIAL, THAT THAT THIS TAPE SHOWN THE VERY DAY AFTER OF THE CONDITION OF THE PREMISES AND SHOWING THE BLOOD SPOTS, AND YOU KNOW, THE SUGGESTION THAT THIS WAS JUST ADMINISTRATIVE VIDEOTAPE, JUST DOESN'T WASH. IF THERE WAS ANY CONCERN THAT THE PEOPLE OR THE POLICE OR THE PROSECUTION MIGHT HAVE HAD THAT THERE WOULD BE SOME LIABILITY FOR THE PREMISES, THE CONDITION IN WHICH THEY LEFT MR. SIMPSON'S PREMISES, YOU WOULD THINK THAT WE WOULD HAVE HAD A VIDEOTAPE SHOWING THE PLUMBING JOB IN WHICH THEY ACTUALLY REMOVED THE DRAINPIPES FROM SOME OF THE PLUMBING FROM THE SINK IN MR. SIMPSON'S BEDROOM. THAT IS NOT EVEN ON THE TAPE. WHAT IS ON THE TAPE IS A PORTRAYAL OF GLOVES, A PORTRAYAL OF BLOOD SPOTS, ITEMS THAT ARE OF GREAT EVIDENTIARY SIGNIFICANCE IN THIS CASE, AND I THINK WHAT WE SEE IS AN AT ATTITUDE THAT JUST DOESN'T RECOGNIZE THAT THERE IS AN OBLIGATION TO MAKE THIS KIND OF EVIDENCE AVAILABLE TO THE DEFENSE. AND WE WOULD SERIOUSLY SUGGEST THAT PERHAPS YOUR HONOR NEEDS TO ORDER THAT THE PROSECUTION HAVE A LOOK AT WHAT IS IN THE FILE CABINETS. I MEAN, THE -- THE SUGGESTION THAT POLICE CAN JUST PUT THINGS -- PUT THING IN THE FILE CABINETS AND WE DON'T NEED TO WORRY ABOUT WHAT IS THERE, FRANKLY, WE ARE WORRIED. WE ARE MORE WORRIED NOW THAN WE WERE. IF THESE TWO ITEMS THAT HAVE SHOWN UP TARDILY ARE AN EXAMPLE OF WHAT ELSE MAY EXIST IN POLICE FILES, WE THINK YOUR HONOR SHOULD ORDER THE PROSECUTION TO MAKE A COMPLETE EXAMINATION OF ALL OF THE EVIDENTIARY ITEMS AND REPORTS IN THE POSSESSION OF THE POLICE DEPARTMENT AND THAT YOUR HONOR, IF THERE IS ANY QUESTION AT ALL, SHOULD YOURSELF EXAMINE THIS MATERIAL AND APPLY A TRUE STANDARD OF WHAT BRADY REQUIRES. APPARENTLY THE PROSECUTION JUST DOESN'T HAVE ANY CONCEPTION OF WHAT THEIR BRADY OBLIGATIONS ARE. NOW, WITH RESPECT TO THE SPECIFIC ITEMS HERE, THE VIDEOTAPE, FIRST OF ALL, YOUR HONOR, IS CORRECT, THAT THE -- THE SPECIFIC INQUIRY WAS MADE AS TO THE EXISTENCE OF THAT TAPE, SO WHAT WE HAVE HERE IS -- IS CONDUCT BORDERING ON WILLFULNESS, CERTAINLY CONDUCT SHOWING RECKLESSNESS AND CERTAINLY NO GREATER SHOWING OF WILLFULNESS THAN EXISTED WITH RESPECT TO THE ROSA LOPEZ TAPE.

THE COURT: ARE YOU SEEKING THE SUPPRESSION OF THE TAPE?

MR. UELMEN: NO, WE ARE NOT. WE ARE NOT ASKING FOR PRECLUSION WITH RESPECT TO THIS TAPE. WE BELIEVE THERE IS EVIDENCE IN THIS TAPE THAT IS FAVORABLE TO THE DEFENSE THAT WE MAY WANT TO USE. THE PREJUDICE WE ARE ASSERTING, THOUGH, IS THAT WE GOT IT SO LATE THAT WE COULDN'T USE IT IN OUR MOTION TO SUPPRESS, WE COULDN'T USE IT IN CROSS-EXAMINING THE DETECTIVES IN CHARGE OF THE INVESTIGATION. AND COUNSEL DIDN'T EVEN ADDRESS THE QUESTION OF THE INCONSISTENCIES BETWEEN WHAT THIS TAPE SUGGESTS AND WHAT THE SEARCH WARRANT AFFIDAVIT SUGGESTED. SO WE BELIEVE WE HAVE MADE AN AMPLE SHOWING OF PREJUDICE WITH RESPECT TO THE FAILURE TO PRODUCE THIS TAPE AT AN EARLIER POINT. WITH RESPECT TO THE INVESTIGATION OF THE SHOES, THE EXPLANATION THAT AN INVESTIGATION IS ONGOING DOES NOTHING. IN FACT, IT SUGGESTS ONCE AGAIN THAT THE PROSECUTION INTERPRETS THEIR OBLIGATION AS SIMPLY DOING THEIR INVESTIGATION AND THEN WHEN THEY ARE DONE, TURNING OVER THE RESULTS OF THEIR INVESTIGATION.

THE COURT: NO. 1054.7 PROVIDES THE MEANS TO SHIELD CONFIDENTIAL MATTERS, IF IT IS NECESSARY TO DO SO, TO COMPLETE AN INVESTIGATION. THAT ARGUMENT DOESN'T APPLY, SO DON'T WASTE YOUR TIME WITH IT.

MR. UELMEN: THEY SHOULD HAVE COME TO YOU AND SOUGHT THAT.

THE COURT: DON'T WASTE YOUR TIME WITH THAT.

MR. UELMEN: ALL RIGHT. WITH RESPECT TO THE RELEVANCE OF THAT MATERIAL, FOR US TO DO FOLLOW-UP INVESTIGATION, THERE IS A LENGTHY CHAIN OF DISTRIBUTION THAT THE PROSECUTION IS ATTEMPTING TO TRACK DOWN, SHOWING WHAT MANUFACTURERS WERE ALLOWED TO USE THIS -- THIS PATTERN, WHAT -- WHICH OF THOSE MANUFACTURERS EXPORTED TO THE UNITED STATES, WHERE IN THE UNITED STATES SHOES THAT HAVE THIS PATTERN WERE ON SALE. THERE IS A LENGTHY CHAIN OF DISTRIBUTION THAT WE ARE GOING TO HAVE TO RETRACE IF IN FACT THEY ARE GOING TO OFFER EVIDENCE TO SUGGEST SOMEHOW THAT THESE SHOES WERE AVAILABLE FOR SALE IN THE UNITED STATES IN A PLACE WHERE THE DEFENDANT MIGHT HAVE -- MIGHT HAVE ACQUIRED THEM.

THE COURT: DID THESE 238 PAGES DEAL WITH THAT?

MR. UELMEN: THEY DO. THEY DO INDEED. THERE ARE INQUIRIES TO SPECIFIC MANUFACTURERS, TO SPECIFIC DISTRIBUTORS, IN AN ATTEMPT TO TRACK DOWN WHERE THESE -- THESE SHOES WERE DISTRIBUTED AND SOLD. AND FINALLY, WITH RESPECT TO THE ISSUE ON THE SUPPRESSION, I THINK IT GOES WITHOUT SAYING THAT ANY COUNSEL WHO COME INTO THE CASE IS GOING TO HAVE TO FAMILIARIZE HIMSELF OR HERSELF WITH THE PRIOR RULINGS OF THE CASE. I MEAN, IF THE DEFENSE OR THE PROSECUTION CAN JUST BRING IN A NEW LAWYER AND IGNORE PRIOR AGREEMENTS AND RULINGS OF THE COURT AND THEN WHEN CALLED TO ACCOUNT, SAY, WELL, I WASN'T HERE WHEN THAT HAPPENED, THERE IS NO WAY THAT THIS COURT CAN CONDUCT A REASONABLE TRIAL. THE OBJECTION WAS MADE IMMEDIATELY AFTER THE CLOSE OF COURT YESTERDAY, AND AS I RECALL, THESE WERE THE LAST QUESTIONS ADDRESSED TO MR. FUNG AT THE END OF HIS TESTIMONY YESTERDAY, SO CERTAINLY I DON'T THINK WE CAN SUGGEST THAT THE DEFENSE WAIVED THIS ISSUE BY NOT MAKING A PROMPT OBJECTION. WE BELIEVE THAT SIMPLY STRIKING THE QUESTION AND THE ANSWER DOES NOT COMMUNICATE THE DEGREE OF EGREGIOUS MISCONDUCT BY COUNSEL INVOLVED IN ASKING AND ANSWERING THESE QUESTIONS. NOW, MR. GOLDBERG SAYS, WELL, AN INSTRUCTION DOESN'T MAKE ANY SENSE. TO TELL THE JURY THAT THEY SHOULD CONSIDER THIS WITH RESPECT TO THE CREDIBILITY OF MR. FUNG MAKES NO SENSE BECAUSE IT HAS NOTHING TO DO WITH THE CREDIBILITY OF MR. FUNG. THAT OVERLOOKS THE NATURE OF THE JURY INSTRUCTION AS A PUNITIVE MEASURE. THE FAILURE TO PROMPTLY DISCLOSE THE TAPE INVOLVING ROSA LOPEZ DIDN'T HAVE ANYTHING TO DO WITH HER CREDIBILITY EITHER.

THE COURT: YES, IT DOES.

MR. UELMEN: IT DOES NOT, YOUR HONOR.

THE COURT: YES, IT DOES.

MR. UELMEN: ALL RIGHT. I RESPECTFULLY SUGGEST THAT THE TAPE WAS PRODUCED, THEY DID HAVE IT AND THEY WERE ALLOWED TO USE IT FOR CROSS-EXAMINATION.

THE COURT: WHICH IS PRECISELY WHY IT GOES TO HER CREDIBILITY.

MR. UELMEN: THE TAPE GOES TO HER CREDIBILITY.

THE COURT: ABSOLUTELY.

MR. UELMEN: RIGHT, BUT DOES THE DELAY OF THE DEFENSE IN DISCLOSING THE TAPE GO TO HER CREDIBILITY?

THE COURT: AND THAT IS FOR THE JURY TO DECIDE.

MR. UELMEN: THAT IS FOR THE JURY TO DECIDE AS A PUNITIVE MEASURE, TO PUNISH THE DEFENSE FOR NOT PRODUCING THE TAPE, AND FOR -- BY THE SAME TOKEN, WE WOULD SAY IT IS FOR THE JURY TO DECIDE WHAT CREDIBILITY THEY SHOULD GIVE MR. FUNG'S TESTIMONY WHEN THE PROSECUTION DELIBERATELY ELICITS EVIDENCE AND TESTIMONY THAT THE PRETRIAL AGREEMENTS PROVIDED WERE NOT TO BE ELICITED.

THE COURT: ALL RIGHT. COUNSEL, WIND IT UP, PLEASE.

MR. UELMEN: ALL RIGHT. WITH RESPECT TO THE FINES, AGAIN WE ARE SIMPLY ASKING THAT THE COURT BE EVENHANDED AND ADDRESS THE QUESTION OF SANCTIONS FROM THE SAME PERSPECTIVE THAT YOU ADDRESS THEM WITH RESPECT TO THE DEFENSE COUNSEL. IN FACT, WE HAVE SUGGESTED MUCH MORE MODEST FINES BECAUSE WE DO NOT WANT TO DEPRIVE THE PROSECUTORS OF THE MEANS TO COME TO COURT SUITABLY ATTIRED, BUT I CAN CERTAINLY LOAN THEM --

THE COURT: THEY CAN BUY THEIR CLOTHES AT PENNEY'S LIKE I DO.

MR. UELMEN: I CAN BUY THEM SOME SACK CLOTH. I THINK THEY WOULD LOOK GOOD IN IT, CERTAINLY BETTER THAN I WOULD LOOK IN A DRESS. TO CONCLUDE, YOUR HONOR, I THINK, FRANKLY, THE BEST WAY TO HANDLE THE WHOLE SITUATION IS SIMPLY WITHDRAW THE ORDER OF MARCH 1ST AND PUT OVER TO THE END OF THE TRIAL ALL ISSUES OF PUNITIVE SANCTIONS SO YOUR HONOR HAS THE BENEFIT OF A FULL RECORD OF THE CONDUCT OF COUNSEL THROUGHOUT THE TRIAL AT THE TIME YOU ADDRESS THESE ISSUES.

THE COURT: THANK YOU, COUNSEL.

MS. LEWIS: YOUR HONOR, JUST FOR THE RECORD, THERE WAS NO PLUMBING TORN UP OR TAKEN OR DONE ANYTHING ELSE WITH ON THE 13TH.

MR. COCHRAN: THAT IS WRONG.

THE DEFENDANT: THAT IS WRONG.

THE COURT: ALL RIGHT. THE COURT WILL MAKE THE FOLLOWING ORDER IMMEDIATELY. THE DISTRICT ATTORNEY'S OFFICE IS ORDERED TO PREPARE AND SUBMIT TO THE COURT BY THE CLOSE OF BUSINESS APRIL 7TH AN INVENTORY OF ALL VIDEOTAPES THAT ARE IN EXISTENCE, EITHER IN THE POSSESSION OF THE DISTRICT ATTORNEY'S OFFICE, THE LOS ANGELES POLICE DEPARTMENT OR ANY OTHER AGENCY THAT IS INVOLVED IN THE INVESTIGATION OF THIS CASE. THE DISTRICT ATTORNEY'S OFFICE IS ORDERED TO PREPARE AND SUBMIT TO THE COURT BY THE CLOSE OF BUSINESS FRIDAY AN INVENTORY OF ALL REPORTS, LETTERS AND OTHER ITEMS REGARDING THE SHOES. THE COURT WILL TAKE UNDER SUBMISSION THE REQUEST FOR SANCTIONS, MONETARY SANCTIONS, AS TO ALL THREE OF THESE ITEMS. AND MR. UELMEN, WILL YOU SUBMIT TO THE COURT THE DRAFT LANGUAGE OF YOUR INSTRUCTION REGARDING THE TICKET AND BAGGAGE RECEIPT?

MR. UELMEN: (NODS HEAD UP AND DOWN.)

MS. LEWIS: YOUR HONOR, VIDEOTAPES? COULD THE ORDER BE A LITTLE BIT MORE SPECIFIC? BECAUSE THERE IS NEWS FOOTAGE I THINK -- MEDIA RELATIONS DEPARTMENT HAS TAPED THIS CASE FOR DAYS AND DAYS AND DAYS.

THE COURT: INVENTORY OF ALL VIDEOTAPES, ALL, FRIDAY, NOON.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MS. LEWIS: THE NEWS SHOWS WE HAVE TAPED FOR THE LAST SEVERAL MONTHS? I DON'T MEAN TO BE IMPERTINENT.

THE COURT: ALL VIDEOTAPES, EACH AND EVERY ONE. THIS IS THE SECOND TIME THE PROSECUTION HAS POPPED UP LATE WITH A VIDEOTAPE.

MS. LEWIS: THIS ONE WAS NOT IN OUR POSSESSION. I HAVE ALREADY MADE THAT POINT.

THE COURT: BUT WE KNEW IT EXISTED AND INQUIRY WAS MADE SEVERAL TIMES.

MS. LEWIS: WE DIDN'T -- AS I HAVE TOLD YOU, WE DID NOT KNOW IT EXISTED. DETECTIVE LUPER DID; BUT WE DIDN'T.

THE COURT: WELL, DETECTIVE LUPER IS PART OF THE PROSECUTION TEAM, I TAKE IT.

MS. LEWIS: NOT UNDER THE PENAL CODE SECTION COVERING OUR DISCOVERY OBLIGATIONS, YOUR HONOR.

THE COURT: I AGREE. THE THINK THE PROSECUTION IS VERY FORTUNATE THAT THAT STATUTE WAS WRITTEN BY PROSECUTORS.

MS. LEWIS: AND PASSED BY THE VOTERS OF THIS STATE, YOUR HONOR. THAT WAS AN INITIATIVE THAT THE VOTERS APPROVED OF.

THE COURT: I AGREE, AND THAT IS THE DISABILITY THAT THE DEFENSE HAS, BECAUSE THE DEFENSE OBLIGATIONS ARE SPELLED OUT MUCH MORE CLEARLY THAN THE PROSECUTOR'S OBLIGATIONS ARE. IT IS AN INTERESTING STATUTE. ALL RIGHT. WE WILL TAKE A TEN-MINUTE COURT REPORTER RECESS AND THEN WE NEED TO TAKE UP THE PRESUMPTIVE TEST ISSUE. I WOULD LIKE TO SEE COUNSEL IN CHAMBERS FOR THE TEN-MINUTE RECESS. I WANT TO KNOW WHAT YOUR POSITION IS ON THE PRESUMPTIVE BLOOD TESTS.

(RECESS.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN CAMERA:)

THE COURT: WE ARE IN CHAMBERS. MR. GOLDBERG, YOU HAD SOMETHING THAT YOU NEEDED TO --

MR. GOLDBERG: YES. THERE WAS SOMETHING I WANTED TO DISCLOSE NOW IN LIGHT OF THE COURT'S ORDER OF DISCLOSING ALL VIDEOTAPES, REGARDLESS OF WHAT THEY WERE. IT SEEMS THAT THE COURT IS ESSENTIALLY SAYING EMPTY OUT THE CASE FILES, AND IN LIGHT OF THAT, I RECALL THAT WHEN WE DID THE DEMONSTRATION OF ANDREA MAZZOLLA COLLECTING BLOOD, ORIGINALLY I DECIDED THAT I WAS GOING TO VIDEOTAPE EVERYTHING AND I HAVE VIDEOTAPES OF PART OF THE DEMONSTRATION OR ALL OF THE DEMONSTRATION OF HER PART. AFTER THAT I DECIDED TO DISCONTINUE IT AND WE JUST CONTINUED WITH STILL PHOTOGRAPHY. I FELT THAT IN LIGHT OF WHAT THE COURT HAD SAID THAT IT WOULD BE APPROPRIATE TO MENTION THAT NOW. OBVIOUSLY OUR POSITION IS THAT IT DOESN'T FALL WITHIN ANY PROVISION OF THE DISCOVERY STATUTE AND IT ISN'T EXCULPATORY, BUT I FELT THAT IT SHOULD BE PUT ON THE RECORD RIGHT NOW.

THE COURT: OKAY. GOSH, YOU HAD ME SCARED THERE FOR A MINUTE.

MR. NEUFELD: WE WOULD ASK THAT IT BE TURNED OVER SURELY FOR CROSS-EXAMINATION PRIVILEGES.

MS. CLARK: THIS IS WORK PRODUCT, YOUR HONOR.

MR. NEUFELD: NO, NO, NO. THEY PREPARED A DEMONSTRATION HERE AND THEY MADE CERTAIN PHOTOGRAPHS TO INVENTORY AND SHOW THE WAY IT IS DONE. IF THAT VIDEOTAPE IS ALSO AN ATTEMPT TO SHOWN THE WAY IT IS DONE AND IT IS INCONSISTENT IN ANY WAY WITH EITHER THE TESTIMONY OF MR. FUNG OR MISS MAZZOLLA OR THE PHOTOGRAPHS, WE ARE ENTITLED TO THAT BECAUSE THAT IS IMPEACHMENT MATERIAL.

THE COURT: I DON'T KNOW.

MS. CLARK: OH, NO.

MR. NEUFELD: THEY ARE PUTTING FORWARD THIS DEMONSTRATION AS TO THE WAY THINGS ARE DONE. WHAT ARE THEY GOING TO DO IN FACT IF IT LOOKS LIKE SHE DIDN'T DO ANYTHING IN A STERILE FASHION ON THE VIDEOTAPE, AND SHE SCREWED UP THIS AND SCREWED UP THAT AND THEY DECIDE TO USE THE VIDEOTAPE, THAT HE WE ARE NOT ENTITLED TO USE THAT SO THEY ON ONE OCCASION FOR STILL PHOTOGRAPH THEY GET IT RIGHT BUT OTHER TIMES THEY DON'T?

THE COURT: WELL, THIS IS THE SAME PROCESS, MR. GOLDBERG.

MR. GOLDBERG: I'M SORRY.

THE COURT: VIDEOTAPING THE SAME PHOTOGRAPHS THAT TURNED UP THE EXHIBIT?

MR. GOLDBERG: IT WAS DONE SIMULTANEOUSLY. OH, THE EXHIBIT?

THE COURT: YEAH.

MR. GOLDBERG: I DON'T UNDERSTAND.

THE COURT: IN OTHER WORDS, THE PHOTOGRAPHS DEPICT THE SAME THING THAT THE VIDEOTAPE DOES, THEY ARE DONE SIMULTANEOUSLY?

MR. GOLDBERG: RIGHT.

THE COURT: ALL RIGHT. WELL, I'M GOING TO REQUIRE ITS DISCLOSURE.

MR. SCHECK: YOUR HONOR, MAY I JUST ADD A LEGAL POINT HERE, IF I MIGHT, AND THAT HAS TO DO WITH THE DIFFERENCE BETWEEN BAGLEY OVERRULING AGURS.

THE COURT: NO, NO, NO. I'M NOT INTERESTED IN HEARING IT NOW. I'VE GOT A JURY THAT HAS BEEN SITTING. YOU GUYS SEEM TO FORGET.

MR. SCHECK: I DON'T.

MR. COCHRAN: JUDGE, THAT IS ALL RIGHT. LET'S GO TO WORK.

THE COURT: NO, NO, BECAUSE NOW WE'VE GOT TO GO ARGUE ABOUT PRESUMPTIVE BLOOD TESTS AND I THINK FROM NOW ON WE ARE GOING TO START ALL THESE HEARINGS AT 4:30 FROM NOW ON.

MR. COCHRAN: THERE IS A PROBLEM AT 8:30 APPARENTLY.

THE COURT: I UNDERSTAND THERE --

MR. COCHRAN: WE WILL BE GLAD TO DO IT AT 8:30.

THE COURT: THAT IS WHY ALL FURTHER EXTRANEOUS MOTIONS ARE GOING TO BE AT 4:30.

MR. COCHRAN: OR WEDNESDAY AFTERNOON OR FRIDAY AFTERNOONS, IF YOU DECIDE. YOU KNOW, WE ARE OFF EARLY THOSE DAYS.

THE COURT: OKAY.

MR. COCHRAN: FOUR O'CLOCK ON WEDNESDAY.

THE COURT: WELL, FOR EXAMPLE, FOUR O'CLOCK TOMORROW WE HAVE ALL THESE MOTIONS REGARDING THE CORONER'S REPORTS.

MR. COCHRAN: OKAY. AND MAYBE WE WILL STOP PEOPLE FROM FILING MOTIONS. 1:30 ON FRIDAY.

THE COURT: NO, NO. THIS CASE WILL GENERATE MORE UNUSUAL ODDBALL MOTIONS.

MS. CLARK: I DON'T KNOW. I MEAN, YOU HAVE GOT MR. COCHRAN AND I PRETTY WELL CALMED DOWN.

MR. COCHRAN: WE HAVE BEEN TALKING ABOUT DE-ESCALATING AFTER THIS, HOPEFULLY.

MS. CLARK: HE WANTS TO FIRE THE LAST SALVO ACROSS THE BOW.

THE COURT: WE ARE NOT THERE YET. ALL RIGHT. LET'S GO OUT AND TALK ABOUT PRESUMPTIVE BLOOD TESTS.

MR. GOLDBERG: YOUR HONOR, THERE WAS SOME PRESUMPTIVE BLOOD TESTS, A CITATION TO IMWINKELRIED, I WILL GET THE SPELLING, I-M-W-I-N-K-E-L-R-I-E-D, AND MY ASSISTANT BROUGHT IT DOWN. IT IS ONLY TWO PAGES LONG, BUT I WOULD LIKE TO PROVIDE THE COURT AND COUNSEL WITH A COPY BECAUSE HE JUST DISCUSSED THIS VERY BRIEFLY, FORENSIC BLOOD TESTING AND DISCUSSES CALIFORNIA LAW.

THE COURT: ALL RIGHT. LET'S GO. THE PROBLEM IS WE ARE THERE, SO WE NEED TO DECIDE THIS NOW.

MR. GOLDBERG: IT WILL TAKE THE COURT ABOUT TWO OR THREE MINUTES TO READ IT.

THE COURT: OKAY. LET'S GO.

(AT 10:43 A.M. THE PROCEEDINGS IN CAMERA WERE CONCLUDED.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

THE COURT: ALL RIGHT. BACK ON THE RECORD ON THE SIMPSON MATTER. DEFENDANT IS AGAIN PRESENT BEFORE THE COURT WITH COUNSEL, PEOPLE ARE REPRESENTED. WE HAVE ONE MORE MATTER WE NEED TO RESOLVE BEFORE WE INVITE THE JURY TO JOIN US. THAT IS AS TO THE PROSECUTION'S OFFER OF PRESUMPTIVE BLOOD TESTS. MR. GOLDBERG.

MR. GOLDBERG: OH, I SEE HE'S COMING RIGHT NOW.

MS. LEWIS: YOUR HONOR?

THE COURT: MISS LEWIS.

MS. LEWIS: OUR MEDIA RELATIONS DIRECTOR ASKED ME TO HAVE THE COURT ACKNOWLEDGE WHAT TO ME IS OBVIOUS. THAT IS THE TAPE -- THAT THE INVENTORY OF THE TAPES THE COURT WANTS WOULD BE FROM JUNE 12TH AND OF COURSE ONLY TAPES RELATING IN SOME MANNER AT ALL TO THIS CASE.

THE COURT: THAT'S CORRECT.

MS. LEWIS: THANK YOU.

MR. GOLDBERG: YOUR HONOR, I HAD AN ADDITIONAL CITATION THAT I WANTED THE COURT TO LOOK TO, AND IT'S PROFESSOR IMWINKELRIED TREATISE ON SCIENTIFIC EVIDENCE, AND SPECIFICALLY PAGE 532 WHICH DISCUSSES ADMISSIBILITY OF PRELIMINARY BLOOD TESTING AND DISCUSSES THE PHENOLPHTALEIN TESTS AND ALSO CITES COLEMAN WHICH I PREVIOUSLY CITED TO THE COURT. AND I -- THE REASON THAT I'M BRINGING THIS TO THE COURT'S ATTENTION IS BECAUSE I BELIEVE HIS INTERPRETATION OF COLEMAN IS THE SAME AS THE INTERPRETATION THAT I OFFERED TO THE COURT WHEN I FIRST CITED IT, AND I'LL SUBMIT IT TO COUNSEL, A COPY TO COUNSEL. MAY I APPROACH?

THE COURT: YOU MAY. THANK YOU.

MR. NEUFELD: YOUR HONOR, MAY I MAKE ONE COMMENT BEFORE YOU DECIDE THIS ONE?

(BRIEF PAUSE.)

THE COURT: ALL RIGHT. WHO WISHES TO BE HEARD FIRST?

MR. NEUFELD: JUST VERY, VERY BRIEFLY, YOUR HONOR.

MS. LEWIS: COULD I BEG THE COURT'S INDULGENCE TO MAKE ONE MORE BRIEF COMMENT ON THE OTHER MATTER? THE DRAIN -- THE DRAIN AT THE DEFENDANT'S RESIDENCE WAS -- THE TRAP WAS REMOVED ON THE 13TH AND THAT WAS THE EXTENT OF THE PLUMBING, WHATEVER THAT WAS DONE. I JUST CLARIFIED THAT WITH MR. FUNG HIMSELF.

THE COURT: I HEARD IT WAS MORE EXTENSIVE THAN THAT.

MR. COCHRAN: YES.

MR. NEUFELD: YOUR HONOR, NOT FOR PURPOSES OF ARGUMENT. JUST TO CLARIFY WHAT IS THE ISSUE HERE. AND THAT IS THAT THE PEOPLE WISH TO INTRODUCE EVIDENCE OF THE -- A PRESUMPTIVE POSITIVE IN A PHENOLPHTALEIN TEST. SO WE'RE DEALING HERE RIGHT NOW WITH THE PHENOLPHTALEIN TEST AND WE'RE DEALING WITH THEIR REQUEST TO INTRODUCE EVIDENCE OF THE POSITIVE RESULT. ONE OF THE THINGS THAT I POINTED OUT, YOUR HONOR, IS THAT A NEGATIVE RESULT IS OF THE COMPLETELY DIFFERENT NATURE. IT IS A CONCLUSIVE TEST. IT MEANS THAT THERE COULDN'T POSSIBLY BE BLOOD THERE. SO TO LUMP THE ADMISSIBILITY OF NEGATIVE RESULTS WITH POSITIVE RESULTS FOR THE PHENOLPHTALEIN TEST REALLY RAISES A COMPLETELY DIFFERENT ISSUE.

THE COURT: WHAT NEGATIVE RESULTS DO WE HAVE?

MR. NEUFELD: THEY DID -- THEY DID PRESUMPTIVE TESTING ON STAINS ALL OVER THE PLACE. FOR INSTANCE, THEY SAW REDDISH STAINS ALONG THE SOUTH WALL OF THE HOUSE, THE POLICE DID.

THE COURT: WHAT NEGATIVE RESULTS DO WE HAVE?

MR. NEUFELD: THOSE ARE NEGATIVE.

THE COURT: ALL RIGHT.

MR. NEUFELD: THOSE ARE NEGATIVE. THERE'S ALLEGATIONS OF CERTAIN STAINS FOUND IN OTHER PLACES IN THE HOUSE AS WELL, MR. SIMPSON'S HOUSE. THEY TESTED THOSE. THOSE WERE NEGATIVE.

THE COURT: ALL RIGHT. WHAT'S THE NATURE OF THE PLUMBING? YOU INDICATED THAT FALSE POSITIVES COME FROM COPPER PLUMBING. WHAT'S THE NATURE OF THE PLUMBING AT THE SIMPSON RESIDENCE?

MR. NEUFELD: I DON'T KNOW. I CAN'T ANSWER THAT QUESTION RIGHT NOW. I HAVE NOT EXAMINED THE PLUMBING. BUT THE MAIN PROBLEM FRANKLY WITH FALSE POSITIVES FOR A PHENOLPHTALEIN TEST, YOUR HONOR, ISN'T EVEN THE COPPER. IT'S MICROORGANISMS AND BACTERIA. AND THAT'S WHY -- I'VE CALLED OUT TO LEADING FORENSIC SCIENTISTS AROUND THE COUNTRY, AND THEY DON'T EVEN USE THE PHENOLPHTALEIN TEST FOR ANYTHING INVOLVING PLUMBING FIXTURES. THEY WOULD TAKE THE RESIDUE OR WHATEVER IT IS THAT THEY WANT TO TEST BACK TO THE LABORATORY AND DO CONFIRMATORY TESTING WHICH COULD ASSESS WHAT THE ITEM IS. THAT WASN'T EVEN DONE HERE. UNLIKE THE OTHER ITEMS THAT THEY WISH TO INTRODUCE, THERE WAS SOME CORROBORATIVE OR CONFIRMATORY TESTING DONE. BUT AS THE BLAKE ARTICLE POINTS OUT, MICROORGANISMS AND BACTERIA WHICH LIVE IN WET MOIST PLACES SUCH AS DRAINS ARE RENDERED THE USEFULNESS OF A PHENOL TEST UNDER THOSE CIRCUMSTANCES TO BE ABSOLUTELY USELESS. SO THAT'S WHAT GIVES RISE TO THE 352 ISSUE AS WELL, YOUR HONOR. THAT'S WHY WE'RE NOT -- WE'RE NOT OPPOSING, FOR INSTANCE, THE PHENOL RESULT AND THE PHOTOGRAPH DEPICTING IT OF THE STAIN ON THE FLOOR OF THE BATHROOM.

THE COURT: BECAUSE THAT STAIN WAS COLLECTED AND THEN TESTED.

MR. NEUFELD: RIGHT.

THE COURT: ALL RIGHT. MR. GOLDBERG.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MR. GOLDBERG: WHAT I'M HEARING FROM THE DEFENSE IS SOMEWHAT TROUBLING. WHAT THEY SAY IS, WELL, WE CAN PUT IN EVIDENCE OF THE NEGATIVES BECAUSE AS THE COURT WILL RECALL FROM MR. COCHRAN'S OPENING STATEMENT, HE MADE A BIG POINT ABOUT BLOOD NOT BEING LOCATED IN CERTAIN PLACES. SO THEY WANT TO CREATE THIS INFERENCE BUTTRESSED NOW BY SCIENTIFIC TESTIMONY THAT THEY'RE GRACIOUSLY NOT OBJECTING TO AS TO NEGATIVES IN A VARIETY OF PLACES WITHOUT ALSO SHOWING EVIDENCE OF POSITIVES IN OTHER LOGICAL PLACES THAT ONE MIGHT EXPECT TO FIND BLOOD IF A DEFENDANT WHO HAD JUST COMMITTED MURDERS HAD COME BACK TO HIS RESIDENCE, HAD GONE UPSTAIRS AND STRIPPED OFF HIS CLOTHES AND TAKEN A SHOWER. THAT IS THE HEIGHT OF GIVING THE JURY A COMPLETELY SKEWED AND ERRONEOUS VIEW OF THE EVIDENCE. THIS IS A LEGAL QUESTION FOR THE COURT TO DECIDE AND IT'S A VERY SIMPLE LEGAL QUESTION. AND THAT IS THE ADMISSIBILITY OF PRESUMPTIVE TESTS. BUT BEFORE I ADDRESS THE LAW ONCE MORE ON THAT ISSUE, WHICH WE BELIEVE IS CLEAR IN THE STATE OF CALIFORNIA, I JUST ASK THE COURT TO VIEW IT ALSO FROM A COMMON SENSE PERSPECTIVE BECAUSE WE KNOW THAT A PERSON CAN COME INTO COURT, A LAYPERSON AND TESTIFY THAT SOMETHING APPEARED TO BE BLOOD OR EVEN WAS BLOOD, THAT THAT'S AN APPROPRIATE LAY OPINION. WE CAN ASK MR. FUNG, WHO HAS SOME EXPERTISE, WHETHER SOMETHING APPEARED TO BE BLOOD, AND THAT KIND OF AN OPINION IS FAR LESS RELIABLE OBVIOUSLY THAN A FORENSIC TEST. WE ALSO KNOW IN OUR COURTS THAT A NARCOTICS OFFICER CAN COME IN AND TESTIFY THAT IN HIS OPINION, SOMETHING WAS IN FACT COCAINE FOR THE PURPOSES OF PROVING THAT IT WAS COCAINE EVEN WHERE THERE HAS BEEN NO CHEMICAL TESTING. IN FACT, THERE WAS A CASE, PEOPLE VERSUS SONLIGHTNER, THAT I WAS THINKING OF AS I WAS LISTENING TO COUNSEL SPEAK WHERE COCAINE WAS FLUSHED DOWN THE TOILET BEFORE THE NARCOTICS OFFICER COULD SEIZE IT, AND HE TESTIFIED THAT IN HIS OPINION, IT WAS COCAINE, AND THE COURT HELD THAT THAT WAS FINE, SOMEWHAT ANALOGOUS TO THE ISSUE WE'RE DOING HERE. SO WE DO ALLOW PEOPLE TO EXPRESS OPINIONS THAT ARE NOT BASED UPON SCIENTIFIC TESTS OR EVIDENCE THAT ARE FAR MORE SUBJECT TO DISPUTE THAN THE KIND OF SCIENTIFIC EVIDENCE THAT WE WANT TO PUT IN. YET THAT IS ALLOWED. AND THE AMBIGUITIES OF THOSE OPINIONS AND THE FALLIBILITY OF THOSE OPINIONS IS AN ISSUE OF WEIGHT FOR THE FACT FINDER. WE DON'T HAVE TO BE OVERLY CONCERNED IN OUR SYSTEM OF LAW OF TRYING TO SHIELD THE JURY FROM THIS KIND OF INFORMATION WHEN THEY'RE GOING TO HEAR BOTH SIDES. THEY'RE GOING TO HEAR WHAT KIND OF FALSE NEGATIVES YOU CAN HAVE. THEY'RE GOING TO HEAR UNDER WHAT CONDITIONS YOU CAN GET AN ERRONEOUS RESULT AND THEY'RE GOING TO HEAR THE KIND OF EXPERIENCE THAT DENNIS FUNG HAS HAD IN USING THESE TESTS AND THE PROBLEMS WITH THE TESTS, WHICH HE IS QUALIFIED TO SPEAK TO BECAUSE HE IS AWARE OF THE KINDS OF THINGS THAT CREATE FALSE POSITIVES AND HE HAS LOOKED AT SOME OF THE LITERATURE IN THIS REGARD. NOW TO ADDRESS THE CALIFORNIA LAW JUST VERY BRIEFLY ON THE ISSUE OF FORENSIC BLOOD TESTING OR PRESUMPTIVE BLOOD TESTING.

WE DO BELIEVE THAT COLEMAN IS DISPOSITIVE. AND ALL THEY ARE SAYING IS THAT YES, THESE DO COME IN, YES, THERE IS A HISTORY OF THEM COMING IN, BUT YOU HAVE TO HAVE EVIDENCE AS TO WHAT TESTS YOU'RE USING. BECAUSE -- IN THAT PARTICULAR CASE, IT WAS A POLICE OFFICER, NOT A CRIMINALIST, AND ALL THEY SAID IS THAT IT WAS A HEME STICK OR HEMO STICK AND NO ONE KNEW WHAT THAT WAS OR THE SUPREME COURT COULDN'T MAKE ANY DECISION AS TO WHAT THAT WAS. BUT WE KNOW VERY CLEARLY THAT PHENOLPHTALEIN IS ONE OF THE OLDEST TESTS. IT GOES BACK ALL THE WAY TO 1909. IT'S THE MOST SPECIFIC TEST ACCORDING TO THE LITERATURE. IT'S BASED UPON THE SAME PRINCIPAL AS THE REST OF THE PRESUMPTIVE TESTS INCLUDING THE ONES THAT THE DEFENDANT'S OWN EXPERTS USED. AND VERY CLEARLY UNDER CALIFORNIA PRECEDENT, IT SHOULD BE ADMITTED, AND ANY ISSUES AS TO THE AMBIGUITY GO TO THE WEIGHT OF THE EVIDENCE AND THAT'S A JURY ISSUE FOR THEM TO RESOLVE.

THE COURT: BUT DON'T I HAVE A 352 PROBLEM; THAT IF IT IS ONLY A PRESUMPTIVE TEST, IT HASN'T BEEN CONFIRMED AND THAT IT CAN BE TRIGGERED BY COMMONLY OCCURRING SUBSTANCES AS WELL. AND GIVEN THAT THIS IS LIKELY TO TURN OUT TO BE A CIRCUMSTANTIAL EVIDENCE CASE, I MEAN ISN'T THAT REALLY A WASTE OF TIME?

MR. GOLDBERG: WELL, OBVIOUSLY WE ARE SPENDING MORE TIME LITIGATING THE ADMISSIBILITY THAN THE EVIDENCE WILL TAKE TO COME IN. THE KINDS OF THINGS THAT COULD CREATE A FALSE POSITIVE ARE VEGETABLE PEROXIDASE WHICH ARE FOUND IN A NUMBER OF VEGETABLES, COMMON VEGETABLES INCLUDING APPLE.

THE COURT: NOT LIKELY TO BE IN A BATHROOM DRAIN.

MR. GOLDBERG: RIGHT. EXACTLY, UNLESS HE WAS MAYBE POURING APPLE JUICE DOWN THE DRAIN. THERE ARE ALSO A NUMBER OF OTHER CHEMICALS THAT ARE NOT COMMONLY HOUSEHOLD CHEMICALS, AND THIS WILL BE THE SUBJECT OF MR. FUNG'S TESTIMONY. BUT EVEN AS TO THE VEGETABLE PEROXIDASE, IT'S VERY CLEAR THAT WHILE IT IS THEORETICALLY POSSIBLE TO GET A FALSE POSITIVE, THAT A -- AN EXPERIENCED CRIMINALIST CAN DISTINGUISH BETWEEN A FALSE POSITIVE AND AN ACTUAL POSITIVE BECAUSE WHAT EVIDENTLY HAPPENS IS, IT DOES TURN PINK, THE SAME PINK COLOR THAT A TRUE POSITIVE WOULD, BUT IT'S MUCH SLOWER. AND THIS IS ALSO DOCUMENTED IN THE SCIENTIFIC LITERATURE.

THE COURT: WHAT ABOUT COMMON HOUSEHOLD BLEACH THOUGH WHICH ONE WOULD USE IN --

MR. GOLDBERG: I DON'T BELIEVE THAT -- AND I MAY BE MISTAKEN ABOUT THIS, BUT I'M NOT SURE THAT BLEACH WAS ONE OF THE ITEMS THAT COULD RESULT IN A FALSE POSITIVE.

THE COURT: THE ARTICLE THAT YOU SUBMITTED TO ME INDICATES THAT BLEACH IS ONE OF THE -- CHLORINE BLEACH IS ONE OF THE ITEMS THAT CAN CREATE A FALSE POSITIVE, WHICH IS NOT UNCOMMON IN BATHROOM FIXTURES.

MR. GOLDBERG: YEAH. ACCORDING TO PROFESSOR IMWINKELRIED, HE DOES SAY THAT. OF COURSE, THIS ISN'T A SCIENTIFIC TEXT, BUT IT IS A LEGAL TEXT. AND AS I SAID, THERE ARE OTHER THINGS THAT DO CAUSE FALSE POSITIVES. BUT -- AND MAYBE PERHAPS WE COULD CLARIFY THIS POINT WITH MR. FUNG BECAUSE I DON'T KNOW IF I SPECIFICALLY ASKED HIM ABOUT BLEACH AS OPPOSED TO VEGETABLE PEROXIDASE. I DON'T RECALL HAVING DONE THAT. BUT I DO REMEMBER HIS EXPLANATIONS TO ME ABOUT THE VEGETABLE PEROXIDASE AND I CAN'T REPRESENT TO THE COURT THAT HIS EXPLANATION WOULD BE THE SAME WITH RESPECT TO BLEACH.

THE COURT: WELL, HOW DO WE COMPARE THE CASE LAW HERE IN COLEMAN WITH THE CASE LAW DEALING WITH LUMINAL?

MR. GOLDBERG: CALIFORNIA CASE LAW DEALING WITH LUMINAL?

THE COURT: YES.

MR. GOLDBERG: WHICH CASE IS THE COURT REFERRING TO?

THE COURT: OUT OF CURIOSITY, WHY WERE NOT -- I CAN'T FIND THE CASE AT THE MOMENT, BUT LET ME ASK YOU THIS.

WHY WERE NO FOLLOW-UP TESTS DONE ON THESE ITEMS?

MR. GOLDBERG: WHAT ARE YOU GOING TO TEST TO FOLLOW UP? I MEAN IN ORDER TO COLLECT THE STAIN, THERE HAS TO BE SOMETHING THAT YOU CAN SEE ACCORDING TO MY UNDERSTANDING, AND THERE ARE CERTAIN INSTANCES WHERE THE ONLY EVIDENCE YOU'RE GOING TO HAVE IS THE PHENOLPHTALEIN TEST. ANOTHER INSTANCE WHERE WE HAVE THAT. FOR EXAMPLE, IS ON ITEM NO. 11, WHICH WAS THE WIRE.

THE COURT: ALL RIGHT. NOW, LET ME ASK YOU THIS. WOULDN'T THE BETTER PRACTICE HAVE BEEN TO TAKE THE TRAP OUT OF THE PLUMBING FIXTURE?

MR. GOLDBERG: I THINK THAT HE -- THAT HE MAY HAVE TAKEN THE TRAP OUT ACCORDING TO WHAT WE SAW, AND I DON'T -- I DON'T -- I DON'T KNOW IF THAT WOULD BE THE BETTER PRACTICE. I WOULD HAVE TO --

THE COURT: WAS THAT TESTED?

MR. GOLDBERG: EXCUSE ME?

THE COURT: WAS THAT TESTED?

MR. GOLDBERG: I DON'T THINK SO, OR THERE WAS -- LET ME TAKE A LOOK.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MR. GOLDBERG: THERE WAS -- I'M SORRY. THERE WAS A TEST ON THAT AND THE TRAP ITSELF WAS NEGATIVE. I MEAN SO THE ONLY -- THAT'S THE EVIDENCE THAT WE HAVE. I MEAN, WE LOOKED FOR EVIDENCE, AND THE ONLY EVIDENCE THAT WE HAVE WAS THE PHENOLPHTALEIN --

THE COURT: SO ISN'T IT POSSIBLE THAT IF BLOOD WAS BEING WASHED DOWN THE SINK, THAT IT WOULD -- MORE OF IT WOULD BE IN THE TRAP THAN ON THE RIM OF THE SINK?

MR. GOLDBERG: I'M NOT A PLUMBING EXPERT, YOUR HONOR, SO I CAN'T ANSWER THAT ONE. I WAS INFORMED BY SOMEONE WHO APPARENTLY KNOWS MORE PLUMBING THAN I THAT YOU DON'T MAKE DRAIN PIPES OUT OF COPPER. I DON'T KNOW THAT TO BE TRUE, BUT THAT'S WHAT SOMEONE TOLD ME. GETTING BACK TO THE LUMINAL QUESTION THAT THE COURT ASKED, I'M NOT FAMILIAR WITH THE CALIFORNIA CASES THE COURT HAS CITED. I'M FAMILIAR WITH SOME OUT-OF-STATE CASES THAT DEAL WITH THAT.

THE COURT: ALL RIGHT.

MR. GOLDBERG: BUT CAN I JUST MAKE ONE MORE POINT ABOUT LUMINAL?

THE COURT: SURE.

MR. GOLDBERG: LUMINAL ISN'T THE SPECIFIC -- IS NEARLY AS SPECIFIC AS PHENOLPHTALEIN, AND THERE IS LITERATURE TO DOCUMENT THAT FACT.

AND THE POINT THAT I WAS TRYING TO MAKE YESTERDAY WHEN I WAS TALKING ABOUT THE TWO-STAGE PROCESS IS THAT YOU DID NOT ALWAYS HAVE TWO STAGES ON THE PHENOLPHTALEIN TEST. WHEN IT WAS FIRST INVENTED IN 1909, I BELIEVE THAT THEY JUST APPLIED THE PHENOLPHTALEIN SOLUTION IF I'M NOT MISTAKEN. THEY NOW ADD THE HYDROGEN PEROXIDE, AND EVIDENTLY THAT IS SUPPOSED TO DEAL WITH AND NEGATE SOME OF THE PROBLEMS THAT YOU'D OTHERWISE HAVE WITH THE VEGETABLE PEROXIDASE.

THE COURT: ALL RIGHT. THANK YOU, COUNSEL.

MR. GOLDBERG: AND THAT DISTINGUISHES IT FROM LUMINAL.

THE COURT: ALL RIGHT.

MR. NEUFELD: MAY I, FEW SECONDS, YOUR HONOR?

THE COURT: NO. PROPONENT, PROPONENT, PROPONENT. ALL RIGHT. COUNSEL, AS TO THE -- I'M GOING TO DIRECT THE PROSECUTION TO COVER UP THE TWO PHOTOGRAPHS ON THE EXHIBIT. ALL RIGHT. THE TWO ITEMS THAT WERE MISSING -- EXCUSE ME -- THAT WERE AGREED NOT TO BE INTRODUCED IS THE AIRLINE TICKET AND WHAT, A BAGGAGE TAG?

MR. SHAPIRO: YES, YOUR HONOR.

MR. GOLDBERG: YOUR HONOR, MAY WE HAVE A FEW MOMENTS JUST TO PATCH THAT EXHIBIT? AS THE COURT KNOWS, I DIDN'T WANT TO DEAL WITH THAT.

THE COURT: ALL RIGHT.

MR. GOLDBERG: THANK YOU.

(BRIEF PAUSE.)

MR. GOLDBERG: YOUR HONOR, PERHAPS I COULD INQUIRE WHILE WE ARE WAITING WHETHER THE COURT IS GOING TO ALLOW THE DEFENSE TO CONTINUE TO ARGUE THAT BLOOD WAS NOT FOUND IN ANY LOCATIONS EXCEPT THOSE WHERE THERE'S BEEN SOME SPECIFIC EVIDENCE OF IT SUCH AS ITEM NUMBER 14 AND ITEM NUMBER 12 INSIDE THE HOUSE.

THE COURT: THEY WOULD DO THAT AT THE PERIL OF OPENING THE DOOR TO ALL THESE OTHER THINGS.

MR. SCHECK: YOUR HONOR, YOU JUST SAID -- THE QUESTION WAS, WE CANNOT ARGUE OR SUGGEST QUESTIONS THAT THERE'S NO BLOOD IN THE PLACES WHERE THEY DID THE TESTS. OTHER PLACES WHERE THERE'S PLAINLY NO BLOOD, WE CAN BRING UP.

THE COURT: YOU CAN BRING THAT UP.

MR. NEUFELD: FINE.

THE COURT: BUT IF YOU CREATE A FALSE IMPRESSION --

MR. NEUFELD: WELL --

THE COURT: -- THAT THAT WAS NOT TESTED --

MR. SCHECK: OH, NO.

THE COURT: -- THEN YOU OPEN THE DOOR TO ALL MANNER OF MISCHIEF.

MR. SCHECK: NO, NO, NO.

MR. GOLDBERG: SEE, YOUR HONOR, THE PROBLEM IS THAT -- IS WHAT, THEY'RE INTENDING TO DO AND WHAT THEY'VE ALREADY DONE IS TO CREATE A FALSE IMPRESSION, BECAUSE WHAT THEY'RE GOING TO SAY IS THAT THE ONLY PLACES WHERE WE HAVE EVIDENCE OF BLOOD ARE 14 AND 12.

THE COURT: IF THEY ARGUE THAT, THEN YOU GET TO REOPEN YOUR CASE. THEY WON'T ARGUE THAT. WE DON'T CREATE FALSE IMPRESSIONS.

MR. NEUFELD: RIGHT. BUT CAN -- WE CAN ARGUE THAT, FOR INSTANCE, THEY DID A PHENOL TEST SOME OTHER PLACE AND IT WAS NEGATIVE.

THE COURT: CORRECT.

MR. GOLDBERG: WELL, SO THE COURT IS ALLOWING THEM THAT THE NEGATIVE CAN BE TESTED?

THE COURT: COUNSEL, YOUR OWN AUTHORITY SAYS THAT PHENOL -- THE ABSENCE OF A POSITIVE PHENOL TEST IS CONCLUSIVE THAT THERE'S NO BLOOD. THAT'S THE AUTHORITY YOU CITED TO THE COURT.

MR. GOLDBERG: I WAS INQUIRING, YOUR HONOR.

THE COURT: THIS IS NOT A QUID PRO QUO. LET'S PROCEED.

(BRIEF PAUSE.)

MS. CLARK: YOUR HONOR, HAS MR. UELMEN PRESENTED ANY JURY INSTRUCTIONS TO THE COURT CONCERNING ITEM 15? WE HAVE NOT SEEN IT.

THE COURT: HE READ IT TO THE COURT. PERFECT.

MS. CLARK: YOU KNOW SOMETHING? I LOOK AT THIS REQUEST, YOUR HONOR. WHAT KIND OF HONOR DO WE HAVE ON THAT SIDE?

THE COURT: COUNSEL, WE'VE ALREADY -- COUNSEL, WAIT, WAIT, WAIT.

MS. CLARK: WHEN WE RECESSED YESTERDAY, THEY SAID THEY DIDN'T CARE, THAT IT WAS NO BIG DEAL.

THE COURT: WAIT, WAIT.

MS. CLARK: THIS IS A LUGGAGE TICKET, YOUR HONOR, THAT HELPS THEIR CASE.

THE COURT: WAIT, WAIT. MISS CLARK, I'VE ALREADY RULED ON THIS. WE'RE NOT ARGUING THIS.

MS. CLARK: I WAS NOT ALLOWED TO ADDRESS THE PROPOSED INSTRUCTION. THIS IS THE FIRST TIME I'VE SEEN IT.

THE COURT: WELL, EXCUSE ME, COUNSEL, BUT I THOUGHT WE HAD COMPLETE ARGUMENT ON BOTH SIDES ON THIS ISSUE. WE HAVE, TRUST ME.

MS. CLARK: WE HAD ARGUMENT, BUT THIS PROPOSED INSTRUCTION WAS JUST -- IS JUST NOW BEING SHOWN TO ME. ARE WE ALLOWED TO ADDRESS THIS ISSUE OF WHETHER THE PROPOSED INSTRUCTION IS CORRECT OR FAIR?

THE COURT: COUNSEL, YOU HAD MORE THAN AMPLE OPPORTUNITY TO ADDRESS IT.

MS. CLARK: HOW'S -- HOW'S THAT, YOUR HONOR? THIS IS THE FIRST TIME I'VE SEEN IT. HOW COULD I ADDRESS SOMETHING I'VE NEVER SEEN?

THE COURT: COUNSEL, DURING THE COURSE OF THE ARGUMENT, DEAN UELMEN ASKED FOR THIS INSTRUCTION. THEN MISS LEWIS WAS GIVEN THE OPPORTUNITY TO RESPOND. HERE WE ARE.

MS. CLARK: AND MR. UELMEN THEN WROTE DOWN WHAT HE PROPOSED THAT THE COURT ACTUALLY GIVE WITH RESPECT TO A LUGGAGE TAG OF NO PREJUDICIAL VALUE AT ALL. I MEAN, WE ARE LOSING PERSPECTIVE HERE AND I'VE NEVER SEEN THE PROPOSED INSTRUCTION HE JUST WROTE UNTIL THIS MOMENT. WE HAVE NOT HAD A CHANCE TO ADDRESS IT.

THE COURT: COUNSEL, YOU HAD THE OPPORTUNITY TO ADDRESS IT. WOULD YOU RETURN IT TO THE COURT, PLEASE. THANK YOU. LET'S HAVE THE JURY.

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

THE COURT: ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. BE SEATED. GOOD MORNING, LADIES AND GENTLEMEN.

THE JURY: GOOD MORNING.

THE COURT: GLAD TO SEE SOME OF YOU ARE STILL SMILING. MY APOLOGIES TO YOU FOR HAVING KEPT YOU IN THE SMALL JURY ROOM FOR SUCH A LONG TIME, AND I WANT TO ADVISE YOU THAT I'M GOING TO CHANGE OUR PROCEDURE IN DEALING WITH SO MANY OF THESE PRETRIAL MATTERS THAT I HAVE TO TAKE UP BEFORE WE INVITE YOU TO JOIN US. I'M GOING TO SCHEDULE ALL FURTHER HEARINGS ON THESE TYPE OF MATTERS AT 4:30 AT THE CONCLUSION OF THE COURT DAY SO THAT WE'LL GET MORE TIME IN FRONT OF YOU AS FAR AS THE JURY IS CONCERNED. YESTERDAY, SOMETHING OCCURRED AT THE CONCLUSION OF THE COURT DAY THAT I NEED TO INSTRUCT YOU REGARDING. THE LAWS GOVERNING CRIMINAL PROCEDURE HERE IN THE STATE OF CALIFORNIA REQUIRE THE EXCLUSION OF EVIDENCE THAT WAS UNLAWFULLY ACQUIRED BY THE POLICE. THESE LAWS EXIST TO PROTECT THE PRIVACY OF ALL CITIZENS BY DETERRING UNLAWFUL POLICE CONDUCT. PRIOR TO THE TRIAL OF THIS CASE, THE PROSECUTION AGREED THAT SOME ITEMS OF EVIDENCE, SPECIFICALLY THE AIRLINE TICKET AND BAGGAGE TAG, WOULD NOT BE OFFERED INTO EVIDENCE AT TRIAL. DURING THE TESTIMONY OF MR. FUNG YESTERDAY, THIS AGREEMENT WAS VIOLATED. YOU SHALL THEREFORE DISREGARD THE TESTIMONY OF MR. FUNG REGARDING THE AIRLINE TICKET AND BAGGAGE TAG. YOU MUST TREAT IT AS THOUGH YOU HAD NEVER HEARD IT. ALL RIGHT. LET'S HAVE MR. FUNG.

DENNIS FUNG, THE WITNESS ON THE STAND AT THE TIME OF THE EVENING ADJOURNMENT, RESUMED THE STAND AND TESTIFIED FURTHER AS FOLLOWS:

THE COURT: ALL RIGHT. MR. FUNG, WOULD YOU RESUME THE WITNESS STAND, PLEASE. GOOD MORNING AGAIN, MR. FUNG.

THE WITNESS: GOOD MORNING.

THE COURT: MR. FUNG, YOU ARE REMINDED YOU ARE STILL UNDER OATH. MR. GOLDBERG, YOU MAY CONTINUE WITH YOUR DIRECT EXAMINATION.

MR. GOLDBERG: THANK YOU.

DIRECT EXAMINATION (RESUMED) BY MR. GOLDBERG:

Q: GOOD MORNING. BEFORE WE GET INTO THE ISSUE OF THE EVIDENCE PROCESSING ONCE YOU GOT BACK TO THE LAB, I WANTED TO CLARIFY A FEW THINGS THAT OCCURRED EARLIER ON THE DAY OF THE 13TH. CAN YOU TELL US, MR. FUNG, WHAT TIME IT WAS THAT YOU LEFT ROCKINGHAM FOR BUNDY ON THE 13TH?

A: I LEFT ROCKINGHAM FOR BUNDY AT APPROXIMATELY 10:00 O'CLOCK.

Q: AND WHEN DID YOU ARRIVE AT BUNDY?

A: I ARRIVED AT BUNDY AT 10:15 IN THE MORNING.

Q: OKAY. NOW, WHEN YOU RETURNED TO ROCKINGHAM IN THE AFTERNOON, DID YOU HAVE OCCASION TO SEE STAIN NO. 8 AGAIN THAT AFTERNOON, THE SAME ONE THAT YOU HAD SEEN EARLIER IN THE MORNING?

A: YES.

Q: AND WAS THERE ANYTHING DIFFERENT ABOUT THE STAIN WHEN YOU SAW IT IN THE AFTERNOON THAN WHEN YOU HAD SEEN IT BEFORE?

A: YES. IN THE MORNING, THE STAIN WAS A REDDISH COLOR, AND WHEN I RETURNED IN THE AFTERNOON, IT WAS A DARK BROWN COLOR.

Q: AND WHAT'S -- IS THERE A DISTINCTION BETWEEN RED AND BROWN IN TERMS OF THE AGE OF THE STAIN IN YOUR MIND?

A: YES.

Q: AND WHAT HAPPENS WHEN IT STARTS AGING A LITTLE BIT?

A: WHEN A STAIN AGES, IT STARTS TO DEGRADE.

Q: OKAY. SO IT HAD TURNED BROWN BY THE TIME YOU HAD RETURNED?

A: YES.

Q: NOW, REGARDING THE STAINS THAT WERE COLLECTED AT ROCKINGHAM IN THE MORNING OF THE 13TH, WERE THERE ANY OF THOSE STAINS WHICH YOU DID NOT PERSONALLY SEE BEING COLLECTED?

A: WANT ME TO REFER TO MY NOTES?

Q: YES.

A: I DID NOT PERSONALLY SEE STAINS 7 AND 8 COLLECTED.

Q: HAD YOU SEEN THEM THOUGH PRIOR TO THE TIME THAT THEY WERE COLLECTED DURING THE DOCUMENTATION PHASE?

A: YES.

Q: ALL RIGHT. AND AT BUNDY, WERE THERE ANY STAINS THERE THAT YOU PERSONALLY DID NOT SEE COLLECTED?

A: YES.

Q: WHAT STAIN OR STAINS?

A: BE STAIN -- ITEM NO. 52 WITH THE PHOTO ID NUMBER 117.

Q: WAS 52 THE STAIN THAT WAS AT THE END OF WHAT YOU REFERRED TO AS BEING THE TRAIL?

A: YES.

Q: OKAY?

MR. SCHECK: YOUR HONOR, EXCUSE ME. THE WITNESS SEEMS TO BE REFRESHING HIS RECOLLECTION FROM NOTES. CAN I INSPECT WHICH NOTES?

THE COURT: YOU MAY.

(DISCUSSION BETWEEN MR. SCHECK AND THE WITNESS.)

THE COURT: ALL RIGHT. COUNSEL, THE REQUEST WAS TO SEE WHAT HE'S REFERRING TO. NOT TO HAVE A PRIVATE CONFERENCE. PROCEED.

Q: BY MR. GOLDBERG: SIR, WHAT DOCUMENT WERE YOU REFERRING TO IN ORDER TO PROVIDE THE ANSWERS WITH RESPECT TO THE STAINS THAT YOU DID NOT PERSONALLY WITNESS BEING COLLECTED?

A: I REFERRED TO A CRIME SCENE CHECKLIST AND I ALSO HAVE SOME OTHER NOTES THAT I HAVE CREATED FOR EASIER TESTIMONY IN MY NOTEBOOK.

Q: OKAY. AND WHEN YOU WERE TESTIFYING ABOUT STAIN 52 AT BUNDY, I CAN'T RECALL WHETHER -- YOU MAY HAVE ALREADY TESTIFIED TO THIS, BUT DID YOU PARTICIPATE IN DOCUMENTING AND MEASURING WHERE THAT WAS?

A: YES, I DID.

Q: OKAY. WITH RESPECT TO THE STAINS THAT WERE COLLECTED AT BUNDY ON JULY THE 3RD OF 1994, WHEN WERE THOSE BOOKED INTO EVIDENCE AT LAPD? DO YOU HAVE TO REFER TO SOMETHING TO GIVE US THE DATE?

A: REFERRING TO MY PROPERTY REPORT.

Q: TELL US THE DATE OF THE PROPERTY REPORT YOU'RE LOOKING AT IN ORDER TO GIVE US THIS INFORMATION.

A: THE DATE OF THE PROPERTY REPORT IS JULY 5TH, 1994 AND THE ITEMS WERE BOOKED INTO THE EVIDENCE CONTROL UNIT OF SID AT JULY 5TH, 1994.

Q: OKAY. AND WHEN YOU BOOK SOMETHING INTO THE EVIDENCE CONTROL UNIT, IS IT SEALED PRIOR TO THAT TIME?

A: YES, IT IS.

Q: AND REGARDING ITEM NO. 9, THE GLOVE THAT YOU DISCUSSED YESTERDAY IN YOUR TESTIMONY, DID YOU SEE ANY STAINS ON THE PAPER BAG INTO WHICH IT WAS PLACED?

A: NO.

Q: OKAY. DID YOU SEE ANY WET BLOOD IN THE AREA -- EXCUSE ME. DID YOU SEE ANY WET OR DRY BLOOD IN THE AREA WHERE THAT GLOVE WAS FOUND?

A: I DID NOT OBSERVE ANY.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME, I WOULD LIKE TO PUT UP THE ROCKINGHAM DIAGRAM JUST BRIEFLY.

THE COURT: CERTAINLY.

MR. GOLDBERG: THAT WOULD BE PEOPLE'S 169.

(PEO'S 169 FOR ID = DIAGRAM/ROCKINGHAM)

THE COURT: IT'S A GOOD THING THERE'S NO WIND IN THIS PLACE.

Q: BY MR. GOLDBERG: MR. FUNG, I AM DIRECTING YOUR ATTENTION TO WHAT'S BEEN MARKED AS PEOPLE'S 169 AND IS ENTITLED "ROCKINGHAM INTERIOR BIOLOGICAL EVIDENCE." DID YOU HAVE THE OPPORTUNITY TO LOOK AT THIS EXHIBIT PRIOR TO THE TIME IT WAS BROUGHT DOWN TO COURT?

A: YES.

Q: ALL RIGHT. AND DIRECTING YOUR ATTENTION TO THE CALL OUT NUMBER THAT SAYS 14, WHAT DOES THAT SHOW? WHAT AREA OF THE RESIDENCE DOES THAT SHOW?

A: THAT IS IN THE MASTER BATH -- BATHROOM.

Q: SO THAT WOULD BE DEPICTING THE UPSTAIRS OF THE HOUSE?

A: YES.

Q: AND WHAT DO THE PHOTOGRAPHS THAT ARE ATTACHED TO ITEM 14 SHOW?

A: THE PHOTOGRAPH ON THE RIGHT DEPICTS CRIMINALIST MAZZOLA DISPLAYING THE RESULTS OF A PHENOLPHTALEIN TEST AND THE PHOTOGRAPH ON THE LEFT IS A CLOSE-UP AND YOU CAN SEE THE STAIN HERE (INDICATING).

Q: OKAY. YOU'RE POINTING TO AN AREA THAT'S JUST TO THE RIGHT ON THIS PHOTOGRAPH ABOUT AN INCH AND A HALF OR SO FROM THE CARD?

A: YES.

Q: AND IS THE OTHER PHOTOGRAPH TO THE LEFT SIMPLY A PERSPECTIVE SHOT DEMONSTRATING THE SAME GENERAL THING?

A: YES.

Q: NOW, DIRECTING YOUR ATTENTION TO THE ITEM CALL OUT NO. 13, WHAT GENERAL AREA IS BEING POINTED TO THERE WITH THAT CALL OUT LINE?

A: THAT IS THE MASTER BEDROOM.

Q: WHAT ABOUT THE TWO PHOTOGRAPHS THAT ARE ATTACHED TO THAT CALL OUT LINE? WHAT DO THOSE SHOW?

A: THOSE TWO PHOTOGRAPHS SHOW A PAIR OF DARK COLORED SOCKS ON THE THROW RUG.

Q: THOSE ARE THE SOCKS THAT YOU RECOVERED AND LISTED AS ITEM 13?

A: YES.

Q: AND NOW TO FINALLY DIRECT YOUR ATTENTION TO THE CALL OUT LINE THAT SAYS 12, WHAT GENERAL AREA OF THE HOUSE IS THAT POINTING TO?

A: THAT IS -- WELL, THOSE TWO PHOTOGRAPHS DEPICT THE FOYER OF THE HOUSE, WHICH IS THE ENTRANCE, AND THERE ARE THREE LARGE STAINS ON THE FLOOR. THAT IS A -- A CLOSE-UP OF THAT IS SHOWN IN THE RIGHT PICTURE.

Q: OKAY. SO THE RIGHT PICTURE IS SIMPLY -- OR THE LEFT PICTURE RATHER IS SIMPLY A PERSPECTIVE SHOT SHOWING THE SAME GENERAL ITEM AS THE PICTURE ON THE RIGHT?

A: YES.

Q: THANK YOU. NOW, WE HAD LEFT OFF YESTERDAY WITH YOU GOING BACK TO THE LABORATORY, AND I BELIEVE YOU TESTIFIED THAT YOU ARRIVED AT APPROXIMATELY 6:30; IS THAT CORRECT?

A: YES.

Q: ALL RIGHT. NOW, WHEN YOU WENT BACK TO THE LABORATORY, WERE YOU STILL -- WERE YOU STILL WEARING THE SAME GLOVES THAT YOU HAD -- THAT YOU WOULD HAVE BEEN WEARING AT THE TIME THAT YOU LEFT ROCKINGHAM IN THE AFTERNOON?

A: NO.

Q: WHAT PROCESS DO YOU GO THROUGH IN THE LABORATORY WHEN YOU'RE RETURNING TO THE LAB WITH BIOLOGICAL EVIDENCE?

A: WITH BIOLOGICAL EVIDENCE, THERE'S A DRYING PROCESS THAT THAT TYPE OF EVIDENCE IS SUBJECTED TO.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME, I WOULD LIKE TO MARK AS PEOPLE'S 170 FOR IDENTIFICATION ANOTHER BOARD, AND I BELIEVE IT'S ENTITLED "EVIDENCE DRYING DEMONSTRATION."

THE COURT: ALL RIGHT. PEOPLE'S 170.

MR. GOLDBERG: YEAH.

(PEO'S 170 FOR ID = POSTERBOARD)

Q: BY MR. GOLDBERG: SIR, DIRECTING YOUR ATTENTION TO THE BOARD THAT WE'VE LABELED 170 -- PERHAPS WE COULD SEE THE FIRST PHOTOGRAPH ON THAT IN CELL 1. SIR, WHAT DOES THAT SHOW?

A: THE PHOTOGRAPH, FIRST PHOTOGRAPH DEPICTS THE DOOR TO THE EVIDENCE PROCESSING ROOM.

Q: OKAY. AND IS THAT -- THAT'S AN INTERIOR DOOR?

A: YES, IT IS.

Q: AND EPR STANDS FOR EVIDENCE PROCESSING ROOM?

A: YES.

Q: IS THERE ANY OTHER DOOR THAT YOU CAN TAKE INTO THAT PARTICULAR ROOM?

A: YES, THERE IS.

Q: WHICH DOOR IS THAT?

A: THAT IS THE ROLLING DOOR THAT FACES TOWARDS THE OUTSIDE OF THE FACILITY.

Q: AND IN ORDER TO GET THE ROLLING DOOR UP, DO YOU HAVE TO GO THROUGH THIS DOOR?

A: YES.

Q: AND INDICATING THE DOOR THAT'S DEPICTED IN CELL NO. 1?

A: YES.

Q: ALL RIGHT. IF YOU LOOK AT THIS PICTURE IN CELL NO. 1 TO THE RIGHT OF THE DOOR, THERE APPEARS TO BE SOME SORT OF A PLASTIC OR GLASS LIKE OBJECT. WHAT IS THAT?

A: THAT IS A MARKER TO LET PEOPLE KNOW WHERE THE MOST SENSITIVE PART OF THE SENSOR FOR THE KEY OF THIS ENTRY IS.

Q: SO IS THIS LIKE A CARD KEY TYPE ENTRY SYSTEM?

A: YES.

Q: ALL RIGHT. WAS ANDREA MAZZOLA STILL WITH YOU DURING THE DRYING PROCESS THAT OCCURRED ON THE 13TH?

A: YES.

Q: ALL RIGHT. NOW, LET'S TAKE A LOOK AT THE PHOTOGRAPH IN CELL 2. WHAT DOES THAT PHOTOGRAPH DEPICT, MR. FUNG?

A: THE PHOTOGRAPH DEPICTS THE TRANSFERRING OF A CLOTH SWATCH IN A PLASTIC BAGGIE TO A LABELED TEST TUBE.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME, I WOULD LIKE TO MARK A TEST TUBE AS PEOPLE'S 163-G.

THE COURT: 163-G.

Q: BY MR. GOLDBERG: SIR, I'M SHOWING YOU WHAT WE'VE JUST MARKED AS 163-G. WHAT IS THAT ITEM?

A: THIS IS A DISPOSABLE TEST TUBE.

Q: AND I'M GOING TO TAKE AN ITEM THAT WE'VE PREVIOUSLY MARKED AS PEOPLE'S 163-E FOR IDENTIFICATION. IT'S ONE OF THE PLASTIC BAGS CONTAINED IN THAT COIN ENVELOPE. YOU TESTIFIED THAT THIS WAS THE TYPE OF PLASTIC BAGGIE THAT YOU USED WHEN YOU WERE AT THE CRIME SCENE?

A: YES.

Q: CAN YOU JUST SHOW US HOW IT IS THAT YOU'RE MANIPULATING THE EVIDENCE AS IS DEPICTED IN CELL 2 BY USING THE TEST TUBE AND THE PLASTIC BAGGIE?

A: YES. WELL, FIRST, I WOULD HAVE GLOVES ON AS IS DEPICTED IN THE PICTURE. THE CLOTH SWATCH WOULD BE WITHIN THE BAG. I WOULD PLACE THE TEST TUBE IN THE PLASTIC BAG AND MANIPULATE IT INTO THE TEST TUBE.

Q: OKAY. SO YOUR HANDS NEVER COME INTO CONTACT WITH THE SWATCH ITSELF?

A: THAT'S CORRECT.

Q: IS THAT THE PROCEDURE THAT YOU USED ON THE 13TH IN TERMS OF DRAWING?

A: YES, IT IS.

Q: AND WHO DID ALL OF THOSE MANIPULATIONS? WAS THAT YOU OR WAS THAT ANDREA MAZZOLA OR A COMBINATION?

A: MISS MAZZOLA LABELED THE TEST TUBES AND I DID THE ACTUAL MANIPULATION OF THE CLOTH SWATCHES INTO THE TEST TUBES.

Q: AND SO ALL THE MANIPULATIONS YOU DID?

A: YES.

Q: NOW, WHEN YOU SAY LABEL THE TEST TUBES, WHAT KIND OF LABEL IS PUT ON THERE?

A: THE SAME NUMBER THAT IS PLACED ON THE COIN ENVELOPES ARE PLACED ONTO THE TEST TUBES.

Q: HOW MANY COIN ENVELOPES DO YOU WORK ON AT A TIME WHEN YOU'RE DOING THIS PROCEDURE?

A: ONLY WORK ON ONE AT A TIME.

Q: OKAY. AND WHAT HAPPENS TO THE CONTROL THAT'S IN -- THAT CORRESPONDS TO THE STAIN IN A PARTICULAR EVIDENCE -- NOT EVIDENCE, BUT COIN ENVELOPE?

A: THE CONTROL IS TREATED IN THE SAME MANNER AND PLACED IN ITS OWN TEST TUBE WITH THE NUMBER AND LETTER SITTING NEXT TO IT DENOTING THAT IT IS THE CONTROL FOR THAT ITEM OF EVIDENCE.

Q: IS IT GENERALLY EASY TO RECOGNIZE THE DIFFERENCE BETWEEN THE CONTROL AND THE STAIN EVEN WITHOUT THE REFERENCE TO THIS LETTER C?

A: YES.

Q: WHY IS THAT?

A: GENERALLY, THE CLOTH SWATCHES THAT ARE -- THAT HAVE THE STAIN ON THEM ARE DARK, RED IN COLOR AND THE CONTROLS ARE NOT RED. THEY'RE EITHER WHITE OR VERY CLOSE TO GRAY OR WHITE.

Q: NOW, LET'S TAKE A LOOK AT THE CELL THAT'S NUMBER 3 ON THIS DIAGRAM, PEOPLE'S 170. MR. FUNG, WHAT IS PORTRAYED IN THIS CELL?

A: ONCE BOTH THE CONTROL AND THE ITEM WITH THE STAINS ON THEM OR THE CLOTH SWATCHES WITH THE STAINS ON THEM ARE TRANSFERRED TO THE TEST TUBES, BOTH THE CONTROL AND THE EVIDENCE IS PLACED BACK INTO THE ORIGINAL COIN ENVELOPES WITH THE OPEN END FACED OUTWARDS AND PLACED INTO A BOX TOP.

Q: I DON'T KNOW HOW GOOD THE RESOLUTION IS ON CELL 3, BUT IF YOU TAKE A CLOSER LOOK AT THAT, CAN YOU SEE HOW MANY TEST TUBES ARE IN THE ENVELOPE THAT'S BEING PLACED DOWN BY THE GLOVE HAND?

A: YES.

Q: HOW MANY IS THAT?

A: THERE ARE TWO.

Q: OKAY. SO ONE WOULD BE FOR THE CONTROL AND ONE WOULD BE FOR THE STAIN?

A: YES.

Q: NOW, IF YOU HAVE MORE THAN ONE -- ONE STAIN CLOTH SWATCH IN A CASE WHERE YOU APPLY SEVERAL IN ORDER TO COLLECT THE STAIN, WHERE DO ALL THOSE GO?

A: ALL THOSE GO WITHIN ONE TEST TUBE.

Q: SO YOU HAVE ONE TEST TUBE THAT HAS ALL OF THE STAINED SWATCHES?

A: YES.

Q: AND ONE TEST TUBE THAT HAS THE CONTROL OR CONTROLS?

A: YES.

Q: WHAT IS THE PURPOSE OF THIS BOX THAT THE ITEM IS BEING PLACED INTO?

A: THE -- THE BOX IS USED FOR STORAGE OF OR A TRANSITORY STORAGE STAGE TO MOVE FROM THE TABLE TO THE DRYING CABINET.

Q: OKAY. NOW, LET'S TAKE A LOOK AT CELL NO. 4 ON PEOPLE'S 170. WHAT DOES THAT SHOW, MR. FUNG?

A: THAT DEPICTS ME PLACING THE BOX WITH THE ITEMS OF EVIDENCE INTO THE DRYING CABINET.

Q: OKAY. AND ON THE 13TH, DID YOU USE THIS SAME PROCEDURE THAT YOU JUST OUTLINED WITH US USING THIS DEMONSTRATION EXHIBIT?

A: YES.

Q: ALL RIGHT. THANK YOU. WE CAN TAKE THE BOARD DOWN. NOW, AFTER THESE ITEMS ARE PLACED IN THE STORAGE CABINET FOR DRYING, WHAT DID YOU DO?

A: THAT NIGHT, AFTER THE SAMPLES WERE PREPARED FOR DRYING, I WENT BACK TO NORTHEAST STATION WHERE MY CAR WAS.

Q: DID SOMEONE HAVE TO DRIVE YOU THERE?

A: YES.

Q: WHO WAS THAT?

A: THAT WAS CRIMINALIST MAZZOLA.

Q: DO YOU KNOW APPROXIMATELY HOW LONG THIS DRYING PROCESS OCCURRED BEFORE MISS MAZZOLA DROVE YOU BACK TO NORTHEAST STATION?

A: NOT MORE THAN 10, 10 MINUTES.

Q: NOW, SIR, ON JUNE THE 14TH OF 1994 AT APPROXIMATELY 8:30 IN THE MORNING, DID YOU RECEIVE ANOTHER PIECE OF EVIDENCE FROM SOMEONE?

A: YES, I DID.

Q: AND WHO WAS THAT? IF YOU HAVE TO REFER TO SOMETHING, TELL US WHAT YOU'RE LOOKING AT.

A: I'M REFERRING TO MY PROPERTY REPORTS, AND THE PROPERTY REPORT IS DATED JUNE 15TH, 1994.

Q: OKAY. WHAT WAS IT THAT YOU RECEIVED AT 8:30 ON THE 14TH?

A: I RECEIVED A PAIR OF WHITE ATHLETIC SHOES.

Q: FROM WHOM WAS THAT?

A: THAT WAS FROM DETECTIVE LANGE.

Q: OKAY. NOW, THAT MORNING, DID YOU HAVE TO GO THROUGH ANY PROCEDURE WITH RESPECT TO THE SWATCHES AND CONTROLS THAT HAVE BEEN PLACED IN THE DRYING CABINET?

A: YES.

Q: AND WHAT PROCEDURE DID YOU HAVE TO GO THROUGH?

A: I HAD TO PREPARE THE SAMPLES OF THE CLOTH SWATCHES THAT I HAD DRIED OVERNIGHT FOR FINAL BOOKING.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME, I WOULD LIKE TO MARK ANOTHER DEMONSTRATION BOARD. IT WILL BE PEOPLE'S 171 AND IT'S A BOARD ENTITLED "EVIDENCE PACKAGING DEMONSTRATION."

THE COURT: ALL RIGHT. PEOPLE'S 171

(PEO'S 171 FOR ID = POSTERBOARD)

Q: BY MR. GOLDBERG: NOW, SIR, WHEN YOU WENT THROUGH THIS EVIDENCE PACKAGING PROCEDURE, DID YOU DO THIS ALONE OR DID MISS MAZZOLA ALSO ASSIST YOU WITH THIS ON THE 13TH -- ON THE 14TH RATHER?

A: MISS MAZZOLA MAY HAVE BEEN PRESENT, BUT I'M NOT ABSOLUTELY SURE.

Q: OKAY. AND DIRECTING YOUR ATTENTION NOW TO THE BOARD THAT'S BEEN MARKED AS PEOPLE'S 171, DOES THIS DEPICT MOST OF THE MAJOR STEPS THAT ARE INVOLVED IN PACKAGING EVIDENCE UP ONCE IT'S BEEN DRIED?

A: YES, IT DOES.

Q: OKAY. CAN WE LOOK AT CELL NO. 1 ON THIS PHOTOGRAPH? SIR, CAN YOU DESCRIBE FOR US WHAT'S DEPICTED IN CELL NO. 1?

A: YES. USING A DISPOSABLE PIPETTE, I MANIPULATED THE CLOTH SWATCHES SO THAT THEY WILL FALL FROM THE TEST TUBE ONTO A CLEAN SHEET OF PAPER.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME, I HAVE ANOTHER ITEM I WOULD LIKE TO MARK AS PEOPLE'S 163-F FOR IDENTIFICATION, AND IT'S SOME WHAT APPEAR TO BE GLASS PIPETTES.

THE COURT: ALL RIGHT. 163-F.

MR. GOLDBERG: UNFORTUNATELY, THEY'RE BOTH TAPED TOGETHER WITH THE EVIDENCE TAGS. IS IT POSSIBLE FOR ME TO BREAK THE TAG SO WE CAN --

THE COURT: YES.

MR. GOLDBERG: THANK YOU.

THE COURT: JUST AS LONG AS YOU DESCRIBE FOR THE RECORD HOW MANY ARE THERE AND --

MR. GOLDBERG: WELL, THERE'S TWO OF THEM AND THEY'RE TAPED TOGETHER WITH AN EVIDENCE TAG.

THE COURT: ALL RIGHT. WHY DON'T YOU LEAVE THE EVIDENCE TAG ON THE SINGLE --

MR. GOLDBERG: I DID.

THE COURT: THANK YOU.

Q: BY MR. GOLDBERG: SIR, I'M SHOWING YOU WHAT WE'VE JUST MARKED AS 163-F FOR IDENTIFICATION. WHAT IS THAT?

A: THAT'S A DISPOSABLE GLASS PIPETTE.

Q: OKAY. I'M GOING TO GIVE YOU BACK THE LITTLE TEST TUBE THAT WE WERE WORKING WITH THAT'S 163-G FOR IDENTIFICATION. AND CAN YOU JUST SHOW US AS IF THERE HAD BEEN A SWATCH IN THERE WHAT MANIPULATION IS SHOWN HERE IN THE PHOTOGRAPH THAT YOU'RE DOING?

A: SOMETIMES WHEN THE SWATCH WITH THE STAIN ON IT DRIES, IT DRIES TO THE SIDE OF THE TEST TUBE AND IT STICKS THERE. SO I'LL TAKE THE PIPETTE, WORK THE SWATCH FREE AND THEN TURN IT OVER ONTO THE PAPER SO THE SWATCH WILL FALL ONTO THE PIECE OF PAPER.

Q: AND WHAT DO YOU CALL THE PIECE OF PAPER THAT YOU'RE PUTTING THE SWATCHES ON AS DEPICTED IN CELL 1?

A: ONCE I FOLD IT UP, IT'S CALLED A BINDLE.

Q: SO DO YOU ALWAYS HAVE TO USE A GLASS PIPETTE IN ORDER TO DO THIS MANIPULATION OR IS IT JUST NECESSARY SOME OF THE TIME?

A: JUST SOME OF THE TIME.

Q: ALL RIGHT. AND IF YOU DON'T HAVE TO USE THE GLASS PIPETTE, HOW WOULD YOU DO IT?

A: I WOULD TURN THE TEST TUBE UPSIDE DOWN ONTO THE PAPER AND SOMETIMES IT JUST FALLS RIGHT OUT.

Q: AND THEN YOU FOLD UP THE SPINDLE IN THE WAY THAT YOU DESCRIBE?

A: YES.

Q: NOW, IF WE COULD SEE CELL 2 ON THIS EXHIBIT. MR. FUNG, WHAT IS DEPICTED ON CELL 2 OF THE EXHIBIT?

A: ON CELL 2, I AM SHOWING AWAY BOTH THE TEST TUBE THAT CONTAINED THE CLOTH SWATCH AND THE PIPETTE THAT I USED TO REMOVE OR MANIPULATE THE SWATCHES WITHIN THE TEST TUBE.

Q: SO WHEN YOU'RE SAYING YOU THROW IT AWAY, DO YOU USE ONE PIPETTE FOR EACH SAMPLE ON THOSE INSTANCES WHERE YOU HAVE TO USE THE PIPETTE AND THEN THROW IT AWAY OR IS IT THE SAME PIPETTE YOU USE THROUGHOUT THE WHOLE --

A: IT'S A DIFFERENT PIPETTE FOR EACH SAMPLE AND CONTROL.

Q: AND ALL THOSE PIPETTES ARE JUST THROWN OUT?

A: YES.

Q: AND THE TEST TUBES?

A: YES.

Q: OKAY. NOW IF WE COULD SEE CELL 3. SIR, WHAT DOES CELL 3 DEPICT?

A: CELL 3 DEPICTS ME FOLDING THE PAPER UP SO THAT THE SWATCHES ARE SECURE WITHIN THAT PIECE OF PAPER.

Q: SO WOULD THAT PIECE OF PAPER BE THE SAME ONE THAT YOU HAD PLACED THE SWATCHES INTO ORIGINALLY AS DEPICTED ON CELL 1?

A: YES.

Q: AND NOW IF WE COULD SEE CELL 4. SIR, WHAT DOES CELL 4 DEPICT?

A: THAT DEPICTS TO ME LABELING THE PAPER BINDLE.

Q: AND WHAT DO YOU LABEL IT WITH USUALLY?

A: USUALLY I WILL PLACE MY INITIALS ON IT AND THE ITEM NUMBER OR PHOTO ID NUMBER, WHICHEVER I HAVE AT THAT TIME.

Q: DO YOU DO SOMETHING TO DISTINGUISH BETWEEN THE STAIN AND CONTROL?

A: YES, I DO.

Q: SO IF THIS IS A SINGLE ITEM THAT WE'RE LOOKING AT IN THIS DEMONSTRATION, DO YOU PUT -- YOU PUT THE STAINS IN ONE BINDLE, AND THEN WHAT DO YOU DO WITH THE CONTROLS?

A: WITH THE CONTROLS, I WILL REPEAT THE SAME PROCEDURES STARTING FROM NUMBER 1 AND REPEAT THE SAME PROCEDURES ONLY I WILL LABEL THE PAPER BINDLE WITH A C.

Q: SO IN OTHER WORDS, YOU'RE GOING THROUGH ALL THE STEPS WITH THE STAIN AND THEN YOU'RE GOING THROUGH ALL THE STEPS AGAIN WITH THE CONTROL?

A: YES.

Q: ALL RIGHT. NOW, IF WE COULD SEE CELL 5. WHAT IS DEPICTED IN CELL 5?

A: CELL 5 SHOWS ME PLACING BOTH THE BINDLES IN A COIN ENVELOPE AND PLACING TAPE OVER THE FLAP SO THAT THE ITEM IS SECURE.

Q: AND IS -- WHAT COIN ENVELOPE IS THIS? IS THIS A NEW COIN ENVELOPE?

A: GENERALLY IT'S THE SAME COIN ENVELOPE USED TO PLACE -- USED -- USED FROM THE VERY START WHEN THE PLASTIC BAGS WERE PLACED IN THE --

Q: SO IN OTHER WORDS, IT'S THE SAME COIN ENVELOPE THAT YOU USED AT THE SCENE AND THEN IN THE DRYING PROCESS AND THEN AGAIN IN THE EVIDENCE PACKAGING PROCESS?

MR. SCHECK: OBJECTION. LEADING.

THE COURT: OVERRULED.

THE WITNESS: YES.

MR. GOLDBERG: THANK YOU, MR. FUNG. YOU MAY RESUME THE STAND.

Q: BY MR. GOLDBERG: AND IS WHAT WE JUST WENT THROUGH THE DRYING PROCESS THAT WAS USED IN THIS CASE FOR THE ITEMS OF EVIDENCE THAT WERE COLLECTED ON THE 13TH AND THEN ALSO ON THE 3RD OF JULY?

A: YES.

Q: ALL RIGHT. NOW, LATER THAT MORNING, THE MORNING OF THE 14TH, DID YOU HAVE A CONVERSATION WITH OTHER -- ANY OTHER LABORATORY PERSONNEL REGARDING TESTS TO BE PERFORMED ON THE EVIDENCE THAT YOU HAD COLLECTED AT ROCKINGHAM AND BUNDY?

A: YES.

Q: WHO WAS INVOLVED IN THAT CONVERSATION?

A: CRIMINALIST YAMAUCHI AND CRIMINALIST GREG MATHESON.

Q: WHO IS GREG MATHESON?

A: MR. MATHESON IS OR WAS AT THAT TIME THE SUPERVISOR OF SEROLOGY. HE IS NOW A CHIEF FORENSIC CHEMIST.

Q: AND WHAT ABOUT MR. YAMAUCHI? WHAT WAS HIS POSITION IN THE LABORATORY AT THE TIME?

A: MR. YAMAUCHI IS A CRIMINALIST ASSIGNED TO THE SEROLOGY UNIT.

Q: DO YOU RECALL WHERE PHYSICALLY THIS CONVERSATION TOOK PLACE IN THE LABORATORY OR DID IT TAKE PLACE IN MORE THAN ONE PLACE?

A: IT -- I'M NOT EXACTLY SURE WHERE IT TOOK PLACE.

Q: OKAY. NOW, DURING THIS CONVERSATION, WAS A DETERMINATION MADE AS TO WHAT ITEMS WERE GOING TO BE TESTED ON THAT PARTICULAR DAY BY MR. YAMAUCHI?

A: IT WAS A GROUP CONSENSUS AND WE ALL CAME TO THE CONCLUSIONS AS TO WHAT ITEMS WOULD BE TESTED.

Q: AND THE THREE OF YOU WERE THE ONLY PARTICIPANTS IN THAT DISCUSSION?

A: YES.

Q: ALL RIGHT. NOW, WHICH ITEMS IF ANY DID -- EXCUSE ME. LET ME ASK ANOTHER QUESTION FIRST. DID YOU SEE MR. YAMAUCHI SAMPLING SOME ITEMS OF THE EVIDENCE THAT MORNING?

A: I REMEMBER HIM SAMPLING EVIDENCE, BUT I DON'T RECALL ON WHICH DAY IT WAS.

Q: OKAY. AND DID YOU MAKE A NOTATION IN YOUR REPORT AS TO WHAT ITEMS WERE HANDED OVER TO MR. YAMAUCHI ON THE 13TH FOR THE PURPOSES -- EXCUSE ME -- ON THE 14TH FOR THE PURPOSES OF TESTING?

A: YES, I DID.

Q: CAN YOU TELL US WHICH PAGE YOU'RE GOING TO HAVE TO REFER TO IN ORDER TO GIVE US THAT INFORMATION?

A: THERE IS A PAGE -- IT DOESN'T HAVE A DATE OR ANYTHING ON IT. WELL, IT DOES HAVE ONE DATE ON IT, 6-14-94 AND THE TOP OF IT IS LABELED "FIELD NOTES."

Q: OKAY. WHAT ITEMS DID YOU GIVE TO MR. YAMAUCHI; AND IF YOU WILL, CAN YOU GIVE US THE ITEM NUMBERS AS WELL AS THE PHOTO NUMBERS?

A: THE ITEMS I GAVE TO CRIMINALIST YAMAU -- OR THE ITEMS THAT CRIMINALIST YAMAUCHI SAMPLED THAT DAY WERE ITEM 9, 41, WHICH WAS PHOTO ID NO. 106, ITEM 42, WHICH WAS PHOTO ID NO. 107, ITEM 47, WHICH WAS PHOTO ID NO. 112, ITEM 48, WHICH WAS PHOTO ID NO. 113, ITEM 49, PHOTO ID NO. 114, ITEM 50, PHOTO ID NO. 115, THAT'S 115, AND ITEM 52, WHICH WAS PHOTO ID NO. 117.

Q: NOW, DO YOU RECALL WHY IT WAS THAT YOU DECIDED TO GIVE HIM ITEM 41 AND 42? I THINK THOSE WERE THE REFERENCE SAMPLES THAT YOU TESTIFIED TO YESTERDAY.

A: THOSE WERE GIVEN TO HIM TO -- FOR THE TESTING PROCEDURE BECAUSE WE HAD NOT YET OBTAINED REFERENCE SAMPLES FROM THE CORONER'S OFFICE.

Q: YOU MEAN FROM THE VICTIMS?

A: YES.

Q: ALL RIGHT. SO FOR WHAT PURPOSE THEN WOULD YOU BE GIVING HIM, IF YOU CAN CLARIFY, 41 AND 42?

A: 41 AND 42 WERE GIVEN TO HIM SO THAT HE COULD IDENTIFY WHAT TYPES THE VICTIMS WERE AND DETERMINE IF ANY ADDITIONAL BLOODSTAINS FOUND AT THE CRIME SCENE WERE FROM A THIRD PARTY OR MORE.

Q: DID YOU SAY THAT WAS BECAUSE YOU DID NOT HAVE THE SAMPLES FROM THE CORONER YET REPRESENTING RONALD GOLDMAN AND NICOLE BROWN?

A: NOT AT THAT TIME.

Q: OKAY. NOW, I KNOW WE TALKED ABOUT THIS A LITTLE YESTERDAY, BUT DID YOU SAY THAT THESE ITEMS WERE TAKEN AS REFERENCE SAMPLES AT THE TIME THAT THEY WERE COLLECTED?

A: YES.

Q: AND WHY IS IT, IF YOU KNOW YOU'RE GOING TO GET BLOOD EVENTUALLY FROM THE CORONER, WHY WOULD YOU BOTHER TAKING A REFERENCE SAMPLE AT THE SCENE?

A: THERE ARE TIMES WHEN THE REFERENCE SAMPLES OBTAINED FROM THE CORONERS ARE SOMEWHAT DEGRADED AND MANY TIMES THE BLOOD AT THE SCENE WHICH HAS BEEN ABLE TO DRY QUICKLY IS A BETTER SAMPLE OR -- YES, A BETTER SAMPLE OF THE VICTIM'S BLOOD TYPES.

Q: WELL, WHAT DOES DRYING QUICKLY HAVE TO DO WITH IT?

A: WHEN A -- WHEN BLOOD OR FOR ANY MATTER BIOLOGICAL EVIDENCE IS IN A WET STATE, IT WILL DEGRADE FASTER THAN WHEN IT IS DRY.

Q: OKAY. AND WITH RESPECT TO ITEM 42, THE ITEM THAT WAS COLLECTED AT THE BASE OF THE FIRST SET OF STAIRS, WHAT WAS THE CONDITION OF THAT POOL OF BLOOD IN THE AREA WHERE IT WAS COLLECTED FROM?

A: THE POOL WAS SOMEWHAT TACKY. IT WAS SOMEWHAT WET STILL. IT WAS NOT COMPLETELY DRY.

Q: OKAY. AT THE TIME THAT IT WAS COLLECTED?

A: YES.

Q: NOW, AT APPROXIMATELY 10:30 OR SO IN THE MORNING OF THE 14TH, DID YOU GO TO SOME OTHER LOCATION FOR THE PURPOSES OF COLLECTING EVIDENCE?

A: YES.

Q: AND WHERE WAS THAT?

A: THAT WAS AT THE LAPD PRINT SHED.

Q: AND WHERE IS THE LAPD PRINT SHED LOCATED?

A: THAT WOULD BE 151 NORTH SAN PEDRO STREET.

Q: SO IT'S IN DOWNTOWN LOS ANGELES?

A: IT'S ACROSS THE STREET FROM PARKER CENTER.

Q: ALL RIGHT. WHEN YOU WENT TO THAT LOCATION, DID YOU HAVE TO GET INTO THE PRINT SHED OR WAS IT ALREADY OPENED?

A: I UNLOCKED IT.

Q: HOW DID YOU UNLOCK IT?

A: I HAD A KEY.

Q: ALL RIGHT. AND WHAT DID YOU SEE IN THE PRINT SHED WHEN YOU UNLOCKED IT?

A: THERE WAS A WHITE BRONCO IN THE PRINT SHED.

Q: HAD YOU SEEN THAT WHITE BRONCO BEFORE?

A: YES.

Q: AND WHERE HAD YOU SEEN IT BEFORE?

A: I HAD SEEN IT THE DAY BEFORE AT 360 NORTH ROCKINGHAM.

Q: WHAT WAS THE LICENSE PLATE OF THAT VEHICLE, MR. FUNG?

A: REFERRING TO MY VEHICLE SEARCH CHECKLIST, THAT WOULD BE 3, C AS IN CHARLES, W AS IN WILLIAM, Z AS IN ZEBRA 788.

Q: WHEN YOU GOT INTO THE PRINT SHED AND SAW THE VEHICLE, DID YOU TRY TO GET IN SOMEHOW?

A: I HAD TO -- OR A DETECTIVE FROM BURGLARY AUTO DIVISION WAS REQUESTED TO HELP US UNLOCK THE DOOR.

Q: DID YOU HAVE A KEY TO THE VEHICLE AT THAT TIME?

A: NO.

Q: THAT WAS LOCKED WHEN YOU FIRST SAW IT?

A: YES.

Q: WAS IT ALSO LOCKED AT THE SCENE WHEN YOU HAD SEEN IT ON THE 13TH?

A: YES.

Q: ALL RIGHT. HOW WAS IT THAT THIS DETECTIVE HELPED YOU GET IN THE VEHICLE?

A: HE HAD A DEVICE WHICH IS KNOWN AS A SLIM JIM AND HE WAS ABLE TO UNLOCK THE CAR DOOR.

Q: ALL RIGHT. NOW, WHEN YOU WERE AT THIS LOCATION, DID YOU GO ALONE OR WAS ANOTHER CRIMINALIST WITH YOU?

A: CRIMINALIST MAZZOLA WAS WITH ME.

Q: DID YOU COLLECT SOME STAINS FROM THE BRONCO ON THIS DATE, THE 14TH?

A: YES, I DID.

Q: AND WHEN YOU COLLECTED THOSE, DID YOU DO THAT PERSONALLY OR DID MISS MAZZOLA ALSO COLLECT SOME STAINS?

A: I COLLECTED THEM PERSONALLY.

Q: ALL RIGHT.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME, I WOULD LIKE TO MARK AS MY NEXT EXHIBIT A BOARD THAT SAYS "BRONCO BOARD" I BELIEVE AS 172 FOR IDENTIFICATION.

THE COURT: 172, BRONCO BOARD.

(PEO'S 172 FOR ID = BRONCO BOARD)

Q: BY MR. GOLDBERG: BEFORE WE GET INTO THE BOARD, I JUST WANTED TO ASK YOU A COUPLE OTHER QUESTIONS. WHEN YOU GOT TO THE PRINT SHED, THIS WAS ON THE 14TH?

A: JUNE 14TH, YES.

Q: AND WAS THAT THE DAY THAT THE DETECTIVE OPENED UP THE LOCKED BRONCO WITH THE SLIM JIM?

A: YES.

Q: OKAY. NOW, HAVE YOU HAD THE OPPORTUNITY TO LOOK AT THE BOARD THAT WE JUST PUT UP, PEOPLE'S 172 FOR IDENTIFICATION ENTITLED "BRONCO EVIDENCE"?

A: YES.

Q: ALL RIGHT. AND DOES THIS DEPICT VARIOUS ITEMS OF EVIDENCE THAT YOU COLLECTED ON THE 14TH?

A: YES.

Q: DOES IT ALSO DEPICT SOME ITEMS OF EVIDENCE THAT WERE COLLECTED LATER ON BY SOMEONE OTHER THAN YOURSELF?

A: YES, IT DOES.

Q: ALL RIGHT. PERHAPS WE'LL JUST GO AROUND CLOCKWISE STARTING WITH THE PHOTO THAT CONTAINS ITEM 34. OKAY. UNFORTUNATELY, WE'RE NOT GOING TO BE ABLE TO PUT IT UP THERE. BUT DIRECTING YOUR ATTENTION, SIR, TO ITEM 34 FOR IDENTIFICATION, I MEAN ITEM 34 WITH THE CARD, WHAT DOES THAT DEPICT?

A: THAT DEPICTS A STAIN WHICH WAS NEXT TO THE CAR, SEE IT RIGHT HERE (INDICATING).

Q: IS THAT ON THE INSIDE OF THE CAR?

A: YES, IT IS. IT'S ON THE DRIVER WALL.

Q: ALL RIGHT. AND DOES THE CALL OUT LINE THAT HAS LINE 34 ON IT DEPICT THE GENERAL LOCATION OF THAT STAIN?

A: YES.

Q: IT WOULD BE ON THE -- ON A PORTION THAT WE CAN'T SEE ON THE SKETCH?

A: YES.

Q: ALL RIGHT.

MR. GOLDBERG: I'M NOT SURE THAT ALL THE JURORS CAN SEE THE BOARD, YOUR HONOR. PERHAPS WE CAN JUST READJUST IT A LITTLE BIT.

THE COURT: CERTAINLY.

MR. GOLDBERG: YOUR HONOR, PERHAPS WE CAN MOVE THIS IN A FASHION THAT'S A LITTLE BIT MORE CENTERED WITH THE COURT'S PERMISSION.

Q: BY MR. GOLDBERG: NOW, SIR, DIRECTING YOUR ATTENTION TO THE CELL THAT HAS THE CALL OUT LINE NO. 23 ON IT, WHAT IS PORTRAYED IN THAT CALL OUT LINE AND PHOTO?

A: IN THE PHOTOGRAPH, THERE IS A RED STAIN IN THE HANDLE WELL.

Q: OKAY. AND DOES THE CALL OUT LINE DEPICT THE GENERAL VICINITY OF THAT STAIN?

A: YES.

Q: NOW, WITH RESPECT TO THESE TWO STAINS, 34 AND 23, HOW DID YOU COLLECT THEM? WHAT TECHNIQUE DID YOU USE?

A: THOSE WERE COLLECTED USING THE SAME METHOD PREVIOUSLY DEMONSTRATED.

Q: THE CLOTH SWATCH TECHNIQUE?

A: YES.

Q: ALL RIGHT. NOW, DIRECTING YOUR ATTENTION TO WHAT'S BEEN MARKED HERE WITH THE PHOTOGRAPH 33 AND THE CALL OUT LINE, WHAT DOES THAT SHOW?

A: YOU WANT ME TO REFER TO MY NOTES? 33 DEPICTS THE DRIVER FLOOR CARPET.

Q: SO IT'S THE CARPET ITSELF?

A: YES.

Q: AND WHAT DID YOU DO TO COLLECT THAT?

A: I CUT IT OUT OF THE VEHICLE.

Q: ALL RIGHT. WERE THERE STAINS ON THAT THAT WERE APPARENT TO YOU WHEN YOU LOOKED AT IT ON THE 14TH?

A: YES.

Q: ALL RIGHT. NOW, MOVING TO THE CALL OUT LINE THAT'S NO. 24 AND THE CORRESPONDING PHOTOGRAPH, WHAT'S DEPICTED THERE?

A: THIS DEPICTS A STAIN THAT WAS ON THE INSTRUMENT PANEL AND ITS RELATIVE LOCATION IS DEPICTED BY THE CALL OUT.

Q: WHAT TECHNIQUE WAS USED TO COLLECT THAT STAIN?

A: THE CLOTH SWATCH METHOD WAS USED.

Q: AND 33, IS THAT ANOTHER PHOTOGRAPH THAT APPEARS TO DEPICT THE AREA OF THE CARPET?

A: YES.

Q: AND NOW MOVING NEXT TO 33 WITH THE CALL OUT LINE NO. 29, WHAT DOES THAT PHOTOGRAPH AND CALL OUT LINE DEPICT?

A: 29 WAS A STAIN REMOVED FROM THE 7:00 O'CLOCK POSITION OF THE STEERING WHEEL.

Q: WHAT TECHNIQUE WAS USED?

A: THE CLOTH SWATCH METHOD.

Q: AND NOW DIRECTING YOUR ATTENTION TO THE PHOTOGRAPH DEPICTS BOTH 31 AND 30 IN THE CALL OUT LINES, WHAT IS SHOWN THERE?

A: THERE ARE TWO STAINS ON THE CENTER CONSOLE AND THEY'RE DEPICTED AND SHOWN BY THE CALL OUT LINES.

Q: NOW, DID YOU REMOVE THE CONSOLE ITSELF FROM THE VEHICLE OR WAS THAT DONE BY SOMEONE ELSE?

A: THAT WAS DONE BY SOMEBODY ELSE.

Q: AND LOOKING AT THE PHOTOGRAPH THAT'S DEPICTED AT THE BOTTOM OF THE CHART ON THE RIGHT-HAND SIDE THAT HAS NUMBERS 304, 305 AND 206 IN IT, DID YOU PUT THOSE NUMBERS THERE OR DID SOMEONE ELSE DO IT?

A: SOMEBODY ELSE DID THAT.

Q: DO YOU RECOGNIZE THE ITEM THAT'S PORTRAYED IN THAT PHOTOGRAPH?

A: THE CENTER CONSOLE?

Q: YES.

A: YES.

Q: HOW DO YOU RECOGNIZE IT?

A: THE SAME GENERAL STAINS ARE PRESENT.

Q: ALL RIGHT. DOES THAT LOOK THE SAME AS IT DID ON THE 14TH WITH THE EXCEPTION THAT IT'S BEEN REMOVED FROM THE VEHICLE?

A: GENERALLY, YES.

Q: AND ALSO, THE PHOTOGRAPH NEXT TO THAT DEPICTS 293, IS THAT ONE THAT YOU DID OR IS THAT SOMETHING THAT HAPPENED AT A LATER TIME?

A: THAT HAPPENED AT A LATER TIME.

Q: OKAY. AND FINALLY, THE PHOTOGRAPH NEXT TO IT SHOWING THE CALL OUT LINE NO. 25.

A: 25 WAS A -- I'LL CHECK MY NOTES AGAIN. NO. 25 WAS FIBERS WITH RED STAINS ON THE CARPET.

Q: WHAT TECHNIQUE DID YOU USE TO COLLECT THOSE STAINS?

A: I CUT THE FIBERS THAT HAD THE STAINS ON THEM FROM THE CARPET.

Q: OKAY. AND DOES THE CALL OUT LINE THERE DEPICT GENERALLY THE LOCATION IN THE CARPET, WHERE IT WAS FOUND?

A: YES.

MR. GOLDBERG: YOUR HONOR, PERHAPS WE MIGHT BE ABLE TO MOVE THIS. I'M FINISHED WITH IT NOW, BUT JUST SO THE JURORS CAN SEE SOMEHOW.

THE COURT: ALL RIGHT. MR. FAIRTLOUGH, YOU WANT TO SHOW 1492, THE EXHIBIT?

(BRIEF PAUSE.)

THE COURT: ALSO, MR. FAIRTLOUGH, WOULD YOU BRIEFLY SHOW IT TO OUR AUDIENCE. ALL RIGHT. WE'LL TAKE OUR RECESS FOR THE LUNCH HOUR. LADIES AND GENTLEMEN, PLEASE REMEMBER MY ADMONITIONS TO YOU; DON'T DISCUSS THE CASE AMONGST YOURSELVES, DON'T FORM ANY OPINIONS ABOUT THE CASE, DON'T ALLOW ANYBODY TO TALK TO YOU ABOUT THE CASE, DO NOT CONDUCT ANY DELIBERATIONS UNTIL THE MATTER HAS BEEN SUBMITTED TO YOU. SEE YOU BACK HERE AT 1:30. MR. FUNG, YOU MAY STEP DOWN. YOU ARE ORDERED TO RETURN AT 1:30. THANK YOU, SIR.

THE WITNESS: THANK YOU.

(AT 12:05 P.M., THE NOON RECESS WAS TAKEN UNTIL 1:30 P.M. OF THE SAME DAY.)

LOS ANGELES, CALIFORNIA; TUESDAY, APRIL 4, 1995 1:30 P.M. DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE APPEARANCES:

(APPEARANCES AS HERETOFORE NOTED.)

(JANET M. MOXHAM, CSR NO. 4855, OFFICIAL REPORTER.)

(CHRISTINE M. OLSON, CSR NO. 2378, OFFICIAL REPORTER.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

THE COURT: ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. ALL PARTIES ARE AGAIN PRESENT. COUNSEL, ANYTHING WE NEED TO DISCUSS BEFORE WE INVITE THE JURORS TO REJOIN US?

THE COURT: ALL RIGHT. LET'S HAVE THE JURY, PLEASE.

(BRIEF PAUSE.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

THE COURT: ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. PLEASE BE SEATED. MR. FUNG, WOULD YOU RESUME THE WITNESS STAND, PLEASE.

DENNIS FUNG,

THE WITNESS ON THE STAND AT THE TIME OF THE NOON RECESS, RESUMED THE STAND AND TESTIFIED FURTHER AS FOLLOWS:

THE COURT: ALL RIGHT. LET THE RECORD REFLECT WE HAVE BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL. GOOD AFTERNOON, LADIES AND GENTLEMEN. THE JURY: GOOD AFTERNOON.

THE COURT: ALMOST AN ON-TIME START. ALL RIGHT. MR. DENNIS FUNG IS STILL ON THE WITNESS STAND UNDERGOING DIRECT EXAMINATION BY MR. GOLDBERG. GOOD AFTERNOON AGAIN, MR. FUNG.

THE WITNESS: GOOD AFTERNOON.

THE COURT: YOU ARE REMINDED YOU ARE STILL UNDER OATH, SIR.

MR. GOLDBERG, YOU MAY CONTINUE WITH YOUR DIRECT EXAMINATION.

MR. GOLDBERG: THANK YOU, YOUR HONOR.

DIRECT EXAMINATION (RESUMED)

BY MR. GOLDBERG:

Q: SIR, WE WERE TALKING ABOUT THE SEARCH OF THE BRONCO WHEN WE LEFT OFF. DID YOU RECOVER ANY PHYSICAL ITEMS OF EVIDENCE IN THE BRONCO, OTHER THAN THE STAINS THAT YOU JUST REFERRED TO, IN THE WAY OF CLOTHING?

A: YES.

Q: WHAT WAS THAT?

A: I COLLECTED A CAP.

Q: WHERE WAS THE CAP COLLECTED FROM?

A: THE CAP WAS RECOVERED FROM THE DRIVER FLOORBOARD.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME I WOULD LIKE THE WITNESS TO TAKE ANOTHER LOOK AT PEOPLE'S 164 FOR IDENTIFICATION. IT WAS THE BOX. MAY I APPROACH THE WITNESS?

THE COURT: YES, YOU MAY.

Q: BY MR. GOLDBERG: SIR, SHOWING YOU 164 FOR IDENTIFICATION, COULD YOU UNSEAL THIS AND DESCRIBE WHAT YOU ARE DOING FOR THE RECORD.

A: CUTTING ALONG THE BOTTOM EDGE OF THE BOX AND THROUGH THE TAPE. WITHIN THE PACKAGE ARE SEVERAL BAGS. THE FIRST ONE I'M PULLING UP IS ITEM NO. 27.

Q: OKAY. AND IS THAT THE BAG INTO WHICH YOU PLACED THE CAP?

A: YES, IT IS.

Q: AND YOU ALSO PUT THE DR NUMBER IN OUR CASE ON THERE?

A: YES.

MR. GOLDBERG: ALL RIGHT.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

Q: BY MR. GOLDBERG: SIR, PERHAPS YOU COULD UNSEAL PEOPLE'S 16 -- PERHAPS WE CAN MARK THAT AS 164-C, YOUR HONOR, JUST SO THE RECORD IS CLEAR.

THE COURT: ALL RIGHT. 164-C WILL BE THE PAPER BAG MARKED AS ITEM NO. 27.

(PEO'S 164-C FOR ID = PAPER BAG W/ITEM 27)

MR. GOLDBERG: AND COULD WE MARK THE GLOVE 164-A AND THE BLUE BAG 164-B?

THE COURT: ALL RIGHT. MRS. ROBERTSON, DO YOU HAVE THAT?

THE CLERK: YES.

THE COURT: ALL RIGHT. THANK YOU.

(PEO'S 164-A FOR ID = GLOVE)

(PEO'S 164-B FOR ID = BLUE BAG)

THE WITNESS: I AM CUTTING ALONG THE SEAL, UNFOLDING THE BAG, AND WITHIN THE BAG IS A CAP.

Q: BY MR. GOLDBERG: IS THAT WHAT YOU COLLECTED?

A: YES.

Q: OKAY. CAN YOU NOW REPLACE THE ITEM, DESCRIBING WHAT YOU ARE DOING FOR THE RECORD.

A: I'M PLACING THE CAP BACK IN THE BAG AND FOLDING THE BAG UP AND PLACING THE CAP BACK INTO THE BOX.

Q: NOW, AFTER YOU HAD COLLECTED THE VARIOUS ITEMS OF EVIDENCE FROM THE BRONCO, WHERE DID YOU GO?

A: AFTER COLLECTING THE ITEMS OF -- ITEMS FROM THE BRONCO, I RETURNED TO THE CRIME LAB.

Q: WITH THE ITEMS THAT YOU HAD COLLECTED?

A: YES.

Q: AND WAS THE BRONCO SECURE WHEN YOU LEFT?

A: THE BRONCO WAS LEFT IN THE PRINT SHED AND THE PRINT SHED WAS LOCKED.

Q: OKAY. WHEN YOU WENT BACK TO THE CRIME LAB WITH THE ITEMS, DID YOU GO ABOUT PROCESSING THEM IN TERMS OF THE DRYING PROCESS THAT YOU PREVIOUSLY DESCRIBED IN YOUR TESTIMONY?

A: YES.

Q: NOW, ON THIS PARTICULAR OCCASION DO YOU REMEMBER WHAT ROLE, IF ANY, ANDREA MAZZOLA PLAYED IN TERMS OF THE DRYING PROCESS?

A: SHE REMOVED SOME OF THE SAMPLES FROM THE PLASTIC BAGS AND PLACED THEM IN THE TEST-TUBES TO DRY.

Q: USING THE TECHNIQUE THAT YOU HAD DESCRIBED OR DO YOU RECALL WHETHER SHE WAS USED A DIFFERENT TECHNIQUE?

A: SHE USED THE SAME TECHNIQUE.

Q: ALL RIGHT. AND WHAT WAS DONE WITH THE EVIDENCE AFTER IT HAD BEEN PLACED INTO THE BAGS -- EXCUSE ME -- BEEN PLACED IN THE TEST-TUBES TO DRY?

A: AFTER BEING PLACED IN THE TEST-TUBES TO DRY, THEY WERE PLACED IN THE DRYING CABINET WITHIN THE EVIDENCE PROCESSING ROOM.

Q: ALL RIGHT. NOW, DIRECTING YOUR ATTENTION TO THE AFTERNOON OF JUNE THE 14TH, AFTER YOU CAME BACK AND DID THIS PROCESSING WITH THE BRONCO EVIDENCE, DID YOU REMAIN AT PIPER TECH?

A: YES, I DID.

Q: AND WHAT WERE YOU DOING THERE THAT AFTERNOON?

A: I CONTINUED TO WRITE MY PROPERTY REPORTS FROM THE PREVIOUS THREE SCENES THAT I HAD DONE.

Q: NOW, WITH RESPECT TO THE -- EXCUSE ME. WITH RESPECT TO THE VIAL OF BLOOD THAT YOU HAD RECEIVED FROM DETECTIVE VANNATTER, WAS A PROPERTY NUMBER ASSIGNED TO THAT VIAL OF BLOOD?

A: YES.

Q: AND WHO ASSIGNED THAT? WAS THAT DONE BY YOU?

A: YES, IT WAS.

Q: OR BY --

A: YES, IT WAS.

Q: ALL RIGHT. AND CAN YOU DESCRIBE FOR US HOW THAT PROCESS OCCURRED OF ASSIGNING THE NUMBER TO THE VIAL OF BLOOD?

A: I HAD ITEMS OF EVIDENCE NUMBERED UP THROUGH 16. I HAD RECEIVED THE VIAL OF BLOOD ON -- AT ROCKINGHAM, THE AFTERNOON BEFORE, AND I DECIDED TO MAKE THAT ITEM NO. 17.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME I WOULD LIKE TO MARK AS PEOPLE'S NEXT IN ORDER 173, A XEROX COPY OF LABORATORY NOTE L-115, AND IT HAS NO. 17, 18 -- EXCUSE ME -- L-15 WAS THE LABORATORY NOTE AND IT HAS ITEMS 17, 18 AND 19 LISTED.

MR. SCHECK: YOUR HONOR, I WOULD LIKE THE ORIGINAL OF THAT, WHICH I BELIEVE IS IN COURT, MARKED AS WELL. HE CAN USE THE COPY, BUT I WOULD LIKE THE ORIGINAL MARKED AS A SEPARATE ITEM.

THE COURT: WELL, HE IS ENTITLED TO RUN HIS OWN CASE. IF HE WANTS TO USE A XEROX COPY, HE CAN USE A XEROX COPY FOR THIS PURPOSE. IF YOU WANT TO USE THE ORIGINAL FOR THE CROSS-EXAMINATION, YOU ARE ENTITLED TO DO SO. PROCEED. IT WILL BE MARKED AS 173.

(PEO'S 173 FOR ID = CC OF LAB NOTE L-15)

MR. GOLDBERG: YOUR HONOR, MAY I PUT THIS UP ON THE ELMO?

THE COURT: YES.

Q: BY MR. GOLDBERG: SIR, WE ARE GOING TO SHOW YOU WHAT HAS BEEN MARKED AS PEOPLE'S 173 FOR IDENTIFICATION. DO YOU RECOGNIZE THIS PAGE?

A: YES.

Q: AND WHO WROTE THAT OUT?

A: THAT WAS WRITTEN BY CRIMINALIST MAZZOLA.

Q: OKAY. AND DID SHE WRITE THAT OUT AT SOMEONE'S DIRECTION OR DID SHE DO IT ON HER OWN?

A: (NO AUDIBLE RESPONSE.)

Q: DID YOU TELL HER TO OR DID SHE DO IT ON HER OWN?

A: I BELIEVE SHE --

MR. SCHECK: OBJECTION.

THE COURT: WHAT IS THE OBJECTION?

MR. SCHECK: I DON'T THINK HE HAS A PROPER FOUNDATION YET WITH RESPECT TO PERSONAL KNOWLEDGE.

THE COURT: REPHRASE THE QUESTION.

Q: BY MR. GOLDBERG: DID YOU TELL HER TO?

A: NO.

Q: ALL RIGHT. WHEN WAS THE FIRST TIME YOU SAW THIS DOCUMENT?

A: I SAW IT WHILE I WAS WRITING MY PROPERTY REPORT.

Q: OKAY. AND WHAT DID YOU DO WHEN YOU SAW THIS DOCUMENT?

A: I HAD HER TRANSCRIBE THE INFORMATION ON TO AN EVIDENCE COLLECTION REPORT.

Q: OKAY. THIS WAS JUST WRITTEN ON A BLANK SHEET OF PAPER?

A: YES.

Q: AND DO YOU HAVE STANDARD FORMS THAT ARE USED IN THE ORDINARY COURSE OF THE CRIME LABORATORY'S BUSINESS FOR THE PURPOSES OF WRITING OUT ITEMS OF EVIDENCE THAT WERE OBTAINED DURING A CRIME SCENE INVESTIGATION?

A: YES.

Q: ALL RIGHT. AND IS THE CRIME SCENE IDENTIFICATION CHECKLIST THAT WE SAW YESTERDAY ONE OF THOSE FORMS?

A: YES.

MR. GOLDBERG: YOUR HONOR, I WOULD NOW LIKE TO MARK AS PEOPLE'S 174 FOR IDENTIFICATION ANOTHER DOCUMENT. I'M GOING TO PUT A "174" IN THE UPPER LEFT-HAND CORNER. I CAN'T READ THE "L" NUMBER ON IT, BUT I'M SHOWING IT TO COUNSEL.

THE COURT: ALL RIGHT. 174. THIS IS ANOTHER LAB NOTE?

MR. GOLDBERG: YEAH, AND IT HAS 18, 17 AND 19 ON IT.

(PEO'S 174 FOR ID = LAB NOTE)

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

Q: BY MR. GOLDBERG: OKAY. NOW, MR. FUNG, DIRECTING YOUR ATTENTION TO 174, WHAT IS THIS DOCUMENT?

A: THIS IS THE EVIDENCE COLLECTION REPORT THAT THE INFORMATION WAS PUT ON OR TRANSCRIBED TO.

Q: WHEN YOU SAY "THE INFORMATION," ARE YOU TALKING ABOUT THE INFORMATION FROM THE LAST DOCUMENT WE SAW, 173?

A: YES.

Q: AND WHO PUT IT ON THIS FORM?

A: THAT WAS A COMBINATION OF MYSELF AND MISS MAZZOLA.

Q: OKAY. AND ON THIS FORM WHAT WAS THE NUMBER THAT WAS ASSIGNED INITIALLY TO THE BLOOD VIAL THAT HAD BEEN RECEIVED FROM DETECTIVE VANNATTER?

A: INITIALLY THE ITEM NUMBER WAS 18.

Q: AND THAT WAS WHAT MISS MAZZOLA HAD PUT ON THE OTHER FORM?

A: YES.

Q: NOW, WHAT WAS ITEM NO. 17?

A: ITEM 17 WAS A PAIR OF TENNIS SHOES.

Q: NOW, WHEN COLLIN YAMAUCHI COLLECTED HIS EVIDENCE EARLIER IN THE MORNING OF THE 14TH, DO YOU RECALL WHETHER HE WAS GIVEN A NUMBER AS TO THE -- THE REFERENCE SAMPLE OF THE DEFENDANT'S BLOOD?

A: I DON'T RECALL.

MR. SCHECK: OBJECTION, VAGUE, COMPOUND.

THE COURT: OVERRULED.

THE WITNESS: I DON'T RECALL.

Q: BY MR. GOLDBERG: ALL RIGHT. NOW, AT SOME POINT DID YOU DECIDE TO REASSIGN NUMBERS TO THESE -- TO THE TUBE?

A: YES.

Q: AND WHY DID YOU MAKE THAT DECISION?

A: I WANTED TO KEEP THE ITEMS IN A CHRONOLOGICAL ORDER AND REDUCE LESS PAPERWORK FOR MYSELF.

Q: OKAY. NOW, WHY WOULD IT REDUCE LESS -- WHY WOULD IT REDUCE THE PAPERWORK?

A: WITH THE -- IF THE BLOOD HAD REMAINED ITEM NO. 18, I WOULD HAVE HAD TO CREATE THREE ADDITIONAL PROPERTY REPORT FACE SHEETS.

Q: OKAY. NOW, THE PAIR OF SNEAKERS ON THE PREVIOUS DOCUMENT WE SAW WAS LABELED ITEM 17; IS THAT CORRECT?

A: YES.

Q: WHICH DID YOU RECEIVE -- AND THE BLOOD 18?

A: YES.

Q: WHICH DID YOU RECEIVE FIRST, THE BLOOD OR THE PAIR OF SNEAKERS?

A: I RECEIVED THE PAIR -- I RECEIVED THE BLOOD VIAL FIRST.

Q: ALL RIGHT. AND DO YOU TRY GENERALLY TO KEEP ITEMS IN CHRONOLOGICAL ORDER?

A: GENERALLY, YES.

Q: IN ORDER TO DO THAT, DID YOU NEED TO REASSIGN THOSE NUMBERS?

A: YES.

Q: NOW, I WANTED TO FOLLOW UP ON THIS OTHER QUESTION THAT YOU SAID ABOUT REDUCING THE PAPERWORK. WHAT IS THE TYPE OF PAPERWORK THAT YOU WOULD BE REDUCING?

A: PROPERTY REPORT.

MR. GOLDBERG: YOUR HONOR, MAY I MARK AS PEOPLE'S 175 FOR IDENTIFICATION A PROPERTY REPORT THAT HAS THE DATE OF -- WELL, RATHER THAN IDENTIFYING IT BY A DATE, I WILL DO IT BY NUMBER. IT IS NO. 12 THROUGH 17. AND I HAVE ANOTHER PROPERTY REPORT WHICH I WOULD LIKE MARKED AS PEOPLE'S 176 THAT HAS NO. 18 AND 19 ON IT.

THE COURT: ALL RIGHT. SO MARKED, 175 AND 176.

(PEO'S 175 FOR ID = PROPERTY REPORT)

(PEO'S 176 FOR ID = PROPERTY REPORT)

Q: BY MR. GOLDBERG: OKAY. SIR, LOOKING AT THIS DOCUMENT, DO YOU RECOGNIZE THIS?

A: YES, I DO.

Q: AND WHO FILLED THAT OUT?

A: I FILLED IT OUT.

Q: AND IS NO. 17 WAY AT THE BOTTOM THE REFERENCE TO THE VIAL OF BLOOD?

A: YES.

Q: OKAY. NOW, CAN YOU EXPLAIN TO US WITH THIS EXHIBIT WHY YOU WOULD HAVE HAD TO FILL OUT MORE PAPERWORK IF YOU HAD KEPT THE BLOOD VIAL AS NO. 18 INSTEAD OF CHANGING IT TO 17?

A: WHEN WRITING PROPERTY REPORTS WE ARE NOT ALLOWED TO SKIP ITEM NUMBERS FROM -- FOR INSTANCE, GOING FROM 16 TO 18. YOU HAVE TO HAVE EVERYTHING IN SEQUENTIAL ORDER, SO IF I WANTED TO MAKE THE BLOOD 18, I WOULD HAVE HAD TO STOP AT ITEM NO. 16, CREATED A NEW PROPERTY REPORT WITH 17 AND ONLY 17, ON THE NEXT PROPERTY REPORT CREATE ANOTHER PROPERTY REPORT WITH ONLY 18 ON IT, AND THAT IS WHY I MADE THE BLOOD NO. 17.

MR. SCHECK: EXCUSE ME, YOUR HONOR. COULD WE HAVE A SIDE BAR?

MR. COCHRAN: MAY WE APPROACH, YOUR HONOR?

THE COURT: WITH THE REPORTER.

(THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

MR. SCHECK: YOUR HONOR, WHAT SEEMS APPARENT IS THAT MR. GOLDBERG JUST SHOWED THE JURY THE PROPERTY REPORT WITH THE AIRLINE TICKET ITEMS. IT COULD HAVE BEEN REDACTED.

MR. NEUFELD: IT SHOULD HAVE BEEN.

MR. GOLDBERG: I'M SORRY, I DIDN'T NOTICE THAT, YOUR HONOR, AND MR. SCHECK DIDN'T BRING IT TO ME PRIOR TO PUTTING IT UP ON THE ELMO.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

MR. GOLDBERG: IT CAN'T REALLY BE READ.

MR. SCHECK: YOUR HONOR, I JUST -- WELL --

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: LADIES AND GENTLEMEN OF THE JURY, WOULD YOU PLEASE STEP BACK IN THE JURY ROOM.

(THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

THE COURT: ALL RIGHT. I THINK WHAT I NEED TO DO IS GO OVER AND SEE WHAT I CAN SEE ON THE ELMO DISPLAY TO SEE IF IT IS APPARENT FROM WHAT IS THERE, BUT I'M NOT THRILLED ABOUT THIS.

(BRIEF PAUSE.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: ALL RIGHT. IT APPEARS THAT THIS EXHIBIT, I BELIEVE THIS IS NO. 175, THIS IS A PROPERTY REPORT, REFLECTS --

MR. COCHRAN: 174.

THE COURT: -- TWO ITEMS, THE 15 AND 16, WHICH ARE THE ITEMS THAT WE JUST HAD THE PROBLEMS ABOUT EARLIER THIS MORNING, AND UNFORTUNATELY, THE EVIDENCE PRESENTATION SYSTEM IS SUCH THAT I CAN, FROM THE JURY BOX, READ WHAT ITEMS 15 AND 16 ARE. AND IF YOU RECALL, THAT IS WHAT CAUSED ME TO READ THE SANCTION INSTRUCTION TO THE JURY AND NOW THE PROSECUTION HAS CHOSEN TO SHOW THIS TO THE JURY AGAIN.

MR. GOLDBERG: I SEE THAT, YOUR HONOR, AND I DID NOT TAKE IT UPON MYSELF TO REDACT IT. I WASN'T THINKING ABOUT THAT AT ALL. AND MR. SCHECK SAW THE DOCUMENT BEFORE WE PUT IT UP AND HE DID NOT SAY ANYTHING TO ME.

THE COURT: WELL, I DON'T KNOW THAT IT IS MR. SCHECK'S OBLIGATION --

MR. GOLDBERG: IT IS NOT A QUESTION OF OBLIGATIONS; IT IS A QUESTION OF THERE WAS NO OBJECTION AND THIS IS A SITUATION -- WHAT ARE THEY TRYING TO DO, WAIT FOR SOMETHING TO BE PUT UP IN FRONT OF THE JURY AND THEN HOLD BACK AND THEN MAKE AN OBJECTION AND SUGGEST THAT SOME SORT OF REMEDIAL ACTION NEEDS TO BE TAKEN WHEN MR. SCHECK SAW IT? AND I THINK THEN IF YOU ASKED HIM, WELL, WHY DIDN'T YOU SAY ANYTHING AND HE WOULD SAY, I OVERLOOKED IT, TOO, IN ALL PROBABILITY. I MEAN, WHAT I WAS CONCENTRATING ON WAS ITEM NO. 17. THE ONLY RELEVANCE OF THIS DOCUMENT IS ITEM NO. 17, AND THAT WAS ALL MY CONCENTRATION WAS ON WAS ITEM NO. 17 AND EXPLAINING THAT PART OF THIS WITNESS' TESTIMONY.

THE COURT: YOU ARE NOT MAKING THIS EASY, ARE YOU, MR. GOLDBERG?

MR. GOLDBERG: WELL, I REALLY DON'T THINK IT IS THAT DIFFICULT, YOUR HONOR, IN ALL DUE RESPECT TO THE COURT. I MEAN, IT HAPPENED --

THE COURT: WELL, WAIT. WE HAVE AGREEMENT THAT THIS ITEM IS NOT GOING TO BE USED OR MENTIONED. YOU VIOLATE THAT AGREEMENT. I GRANT THE UNUSUAL REMEDY OF INSTRUCTING THE JURY THAT THAT SHOULD NOT HAVE BEEN DONE. TWENTY MINUTES AFTER THAT HAPPENS OR TWENTY MINUTES INTO THE SESSION THIS AFTERNOON YOU PUT THIS UP ON THE ELMO.

MR. GOLDBERG: WELL, EVERYTHING THE COURT HAS SAID IS TRUE. I MEAN, THE COURT'S RECITATION OF THE FACTS ARE CORRECT.

THE COURT: WELL, THE FIRST EXPLANATION IS YOU HAD NO IDEA THAT THAT HAD BEEN THE AGREEMENT AND THE AGREEMENT HAD BEEN IF THIS WAS GOING TO BE BROUGHT UP AGAIN THAT THE DEFENSE WAS ENTITLED TO A DE NOVO 1538.5 MOTION.

MR. GOLDBERG: I REALIZE THAT.

THE COURT: AND NOW HERE IT IS AGAIN.

MR. GOLDBERG: BECAUSE, YOUR HONOR --

THE COURT: IN THE SAME DAY.

MR. GOLDBERG: I RECOGNIZE THAT. YOU KNOW, IT IS NOT CUSTOMARY, YOUR HONOR, FOR ATTORNEYS TO TAKE IT UPON THEIR -- THEMSELVES TO REDACT DOCUMENTS. I REALIZE THAT WHAT SHOULD HAVE BEEN DONE HERE --

THE COURT: WELL, COUNSEL, HERE IS THE PROBLEM: THE COURT CANNOT SUPERVISE THE PREPARATION OF EACH AND EVERY EXHIBIT, OTHERWISE WE WOULD BE SPENDING A WHOLE LOT OF TIME JUST LOOKING AT EXHIBITS, AND I TRUST THE PROFESSIONALISM AND INTEGRITY OF THE LAWYERS INVOLVED IN FRONT OF ME TO AT LEAST CULL OUT THE THINGS THAT AREN'T GOING TO BE CONTROVERSIAL. THIS CLEARLY IS.

MR. GOLDBERG: YOU ARE RIGHT, AND I DID NOT TAKE A SECOND LOOK AT THIS BEFORE I USED IT THIS AFTERNOON AFTER THE COURT'S RULING. I MEAN, I JUST DIDN'T THINK ABOUT IT.

THE COURT: IT WASN'T THE COURT'S RULING. THAT WAS OUR AGREEMENT MONTHS AGO.

MR. GOLDBERG: WELL, I MEANT THE RULING EARLIER THIS MORNING, AND MR. SCHECK, WHO SAW IT, DID NOT SAY ANYTHING TO ME.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

THE COURT: MR. SCHECK, ANY COMMENTS?

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. SCHECK: ONE SECOND, YOUR HONOR.

(BRIEF PAUSE.)

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. SCHECK: YOUR HONOR, I THINK THE FACTS SPEAK FOR THEMSELVES. I'M SURE MR. GOLDBERG HAD PLANNED TO INTRODUCE THIS DOCUMENT IN REGARD TO THE MATTER OF THE TRANSFER OF THE BLOOD VIAL AND ITEM 17. I WALKED OVER, TOOK A QUICK GLANCE. I DID NOT THINK AT THAT MOMENT THAT -- ABOUT THE AIRLINE TICKET BEING IN THAT PARTICULAR PLACE, THAT IS TRUE, BUT HE IS TRYING HIS CASE. IT DIDN'T OCCUR TO ME UNTIL WE SAT DOWN AND TOOK A LOOK AT THE MONITOR AND I SAID, OH, MY GOD, THERE IT IS, SO I DON'T KNOW WHAT TO SAY ABOUT THAT, OTHER THAN I DON'T WANT TO TRY HIS CASE FOR HIM AND I SUPPOSE HE HAS TO LOOK AT THE ITEMS AND REDACT THEM AS APPROPRIATE. THE REAL DILEMMA THAT I ACTUALLY HAVE AT THIS MOMENT, AND I DON'T KNOW IF THE COURT WANTS TO ADDRESS IT, IS THE ISSUE OF REMEDY, SO WHENEVER YOU WANT TO -- BUT THAT IS THE ONLY COMMENT I CAN MAKE ON THIS.

THE COURT: WELL, WHAT REMEDY DO YOU SEEK?

MR. COCHRAN: YOUR HONOR, MAY WE HAVE A MOMENT?

MR. SCHECK: MAY WE HAVE A MOMENT TO DISCUSS THAT, WITH THE COURT'S PERMISSION?

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. SCHECK: YOUR HONOR, IN TERMS OF THE REMEDY, AS INDICATED BY THE INITIAL INSTRUCTION THAT DEAN UELMEN PROFFERED TO THE COURT, UMM, OUR CONCERN IS REALLY WITH AT THIS POINT THE PROSECUTION'S VIOLATING ITS AGREEMENTS. AT THIS STAGE WHAT WE ARE CONCERNED ABOUT IS THAT IT NOW BEGINS TO LOOK AS THOUGH WE ARE TRYING TO HIDE THESE ITEMS WHEN THERE WAS AN AGREEMENT THEY WOULDN'T BE INTRODUCED, AND NOW IN REINSTRUCTING THEM, ALL OF A SUDDEN THE IMPORTANCE OF THIS MAY TAKE ON GREATER WEIGHT IN THE JURY'S MIND THAN IT REALLY OUGHT TO IN TERMS OF THE DEFENSE TRYING TO HIDE SOMETHING FROM THEM WHEN THAT IS NOT REALLY WHAT IS GOING ON HERE. WHAT IS GOING ON HERE IS THE PROSECUTION NOW TWICE HAS VIOLATED ITS AGREEMENTS. IN FACT, I THINK IN THE FIRST INSTRUCTION THAT DEAN UELMEN PROFFERED TO THE COURT WE DIDN'T EVEN NECESSARILY ASK FOR A REMEDY, DISREGARD EVERYTHING YOU'VE HEARD ABOUT THAT, BECAUSE WE DO HAVE THAT CONCERN THAT IT IS GOING TO LOOK LIKE WE ARE TRYING TO HIDE SOMETHING FROM THE JURY, BUT WE NEVER SHOULD HAVE BEEN IN THIS DILEMMA IN THE FIRST PLACE. SO THE REMEDY IS -- THE REMEDY IS WE WOULD LIKE YOU TO INSTRUCT THE JURY THAT THE PROSECUTION HAS AGAIN VIOLATED ITS AGREEMENT WITH RESPECT TO PROVING THESE ITEMS OF EVIDENCE AND VIOLATED THE COURT'S ORDER.

THE COURT: MR. GOLDBERG.

MR. GOLDBERG: WELL, YOUR HONOR, IN THE -- THE PROBLEM WITH THESE ARGUMENTS IS THAT THIS SEEMS LIKE AN INCREDIBLE PLACEMENT OF FORM OVER SUBSTANCE. I MEAN, DON'T YOU START YOUR BEGINNING -- YOUR ANALYSIS BY ASKING YOURSELF WHAT IS THE PREJUDICE HERE? AND YOUR HONOR MAY RECALL THAT ONE OF THE FIRST QUESTIONS THAT I POSED, RHETORICAL QUESTIONS WHEN WE WERE ARGUING THIS EARLIER, TO THE DEFENSE WAS CAN THEY LEGITIMATELY CLAIM IN GOOD FAITH THAT THIS IS SOMETHING THAT IS PREJUDICIAL TO THEM OR THAT THIS IS SOMETHING THAT THEY MIGHT NOT EVEN HAVE INTENDED TO INTRODUCE ANYWAY? I MEAN, BASED ON WHAT THE JURY HAS HEARD --

THE COURT: WELL, MR. GOLDBERG, WERE I IN YOUR SHOES I WOULD BE THINKING ABOUT ADOPTING AN ATTITUDE THAT THE COURT WOULD BE RECEPTIVE TO HEARING.

MR. GOLDBERG: I'M JUST TRYING --

THE COURT: AND RATHER THAN CAST THE PROBLEM AND THE BURDEN UPON THE OTHER SIDE, OPPOSING COUNSEL, I WOULD BE CONTEMPLATING HOW BEST TO SALVAGE MY CREDIBILITY BEFORE THE COURT AND I WOULD BE THINKING ABOUT THAT I COULDN'T SAY MEA CULPA TOO MANY TIMES IN THIS SITUATION WERE I IN YOUR SHOES.

MR. GOLDBERG: YOUR HONOR, I DID. I SAID IT THE FIRST TIME, I WILL SAY IT AGAIN, AND I SAID IT DURING MY ARGUMENT. IT WASN'T THE FIRST TIME A MISTAKE WAS MADE BY THE PROSECUTION, BY ME, BY DEFENSE COUNSEL; IT WON'T BE THE LAST TIME. I JUST DIDN'T KNOW HOW SOON IT WAS GOING TO OCCUR.

THE COURT: WELL, THE FACT THAT IT OCCURRED AGAIN SO QUICKLY IS PERHAPS NOT SURPRISING, BUT WHAT IS INCREDIBLE IN THE TRUE SENSE OF THE WORD, INCREDIBLE, IS THAT IT WOULD HAPPEN ON THE SAME SUBJECT MATTER.

MR. GOLDBERG: WELL, WHAT I WOULD ASK THE COURT TO DO -- I CAN MAKE A REPRESENTATION AS TO WHAT HAPPENED. I CAN SAY THIS IS A MISTAKE. I CAN SAY IT SHOULDN'T HAVE HAPPENED. I CAN SAY I AM SORRY. I CAN ALSO REPRESENT TO THE COURT THAT THIS IS NOT DONE INTENTIONALLY. I DON'T KNOW WHETHER THE COURT BELIEVES THAT OR NOT, THAT IS SOMETHING THAT YOUR HONOR HAS TO DECIDE. I KNOW I HAVEN'T PRACTICED IN FRONT OF THE COURT BEFORE, BUT I HOPE THAT BASED UPON MY REPRESENTATIONS AND THE WAY THAT I'VE TRIED TO HANDLE THE LEGAL ISSUES, PERHAPS YOUR HONOR IS IN A POSITION TO DECIDE THAT. BUT ASIDE FROM THAT ISSUE, I WOULD ASK THE COURT ALSO TO THINK ABOUT THIS JUST FROM A CIRCUMSTANTIAL -- IF YOU WANT TO TALK ABOUT EVIDENCE AND LEGAL ANALYSIS FOR A MOMENT -- THINK ABOUT IT FROM A CIRCUMSTANTIAL EVIDENCE STANDPOINT WHICH IS MAYBE PERHAPS THE ONLY EVIDENCE THAT YOUR HONOR FEELS THAT YOU CAN RELY ON IF YOU DON'T WANT TO ACCEPT MY WORD.

THE COURT: WELL, MR. GOLDBERG, I JUST HAVE TO SAY THAT IF I WERE YOU, I WOULD ASK THE COURT'S PERMISSION TO PUT UP A REDACTED COPY OF THIS EXHIBIT AND I WOULD ASK PERMISSION TO DIRECTLY SAY TO THE JURY, I'M SORRY, I DID IT AGAIN, AND MOVE ON.

MR. GOLDBERG: WELL, OKAY. I THINK THAT THE COURT DOESN'T WANT TO HEAR ANY MORE ARGUMENT ABOUT IT. IF THAT IS THE WAY THE COURT FEELS IT SHOULD BE RESOLVED, I WOULD AGREE TO THAT, BUT JUST SO THAT WE DON'T HAVE ANY PROBLEMS --

THE COURT: SOMEHOW I GET THE FEELING IT IS NOT HEARTFELT.

MR. GOLDBERG: WELL, I DON'T KNOW WHAT I CAN DO, YOUR HONOR. IT IS HEARTFELT. I MEAN, I THINK THAT THE COURT CAN IMAGINE --

THE COURT: WELL, MR. GOLDBERG, TRUST ME, I DON'T MEAN TO EMBARRASS YOU BY THIS, BUT YOU'VE GOT TO ADMIT IT IS INCREDIBLE THAT THIS COULD HAPPEN ON THE SAME SUBJECT TWICE ON THE SAME DAY.

MR. GOLDBERG: I DO. I ADMIT IT IS INCREDIBLE.

THE COURT: ALL RIGHT.

MR. GOLDBERG: AND I WOULD STILL ASK YOUR HONOR TO THINK ABOUT WHETHER OR NOT -- YOUR HONOR HAS QUESTIONED I THINK MY INTEGRITY -- WHAT POSSIBLE ADVANTAGE --

THE COURT: I DIDN'T SAY THAT. I SAID THAT I WOULD TRY TO SALVAGE IT WERE I YOU AND I WOULD BE CONCERNED ABOUT IT.

MR. GOLDBERG: AND I AM. I MEAN, WHAT ELSE CAN I DO? I MEAN -- I MEAN, I WISH THE COURT WOULD THINK ABOUT IT. I'M CERTAINLY SORRY IT HAPPENED. I DON'T KNOW WHAT ELSE TO SAY.

THE COURT: CAN I GET ONE OF OUR LAW CLERKS OUT HERE, PLEASE.

(BRIEF PAUSE.)

THE COURT: CAN I HAVE THAT, PLEASE?

MR. FAIRTLOUGH: MAY I APPROACH, YOUR HONOR?

(BRIEF PAUSE.)

THE COURT: IS THIS A PHOTOCOPY?

MR. FAIRTLOUGH: I BELIEVE SO, YOUR HONOR.

(BRIEF PAUSE.)

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. SCHECK: YOUR HONOR --

THE COURT: I'M LISTENING.

MR. SCHECK: YOUR HONOR, WE'VE TALKED IT OVER, AND OUR PROBLEM AT THIS POINT IS THE CONCERN I EXPRESSED BEFORE ABOUT REDACTING IT OUT.

THE COURT: UH-HUH.

MR. SCHECK: IS THAT IT IS -- WE FEEL --

THE COURT: I CAN TELL THEM IT IS IRRELEVANT TO THE CASE. GIVE ME FIVE COPIES. MAKE SURE --

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

THE COURT: MR. GOLDBERG, BEFORE WE GO TOO MUCH FURTHER, PLEASE ACCEPT MY APOLOGIES TO YOU IF I SEEM IRRITATED, BUT THIS DAY HAS NOT GONE WELL. IT STARTED OFF WITH MANY DIFFERENT ARGUMENTS OVER MANY CONTENTIOUS ITEMS, AND IT HAS BEEN A BAD DAY TODAY.

MR. GOLDBERG: I AGREE WITH THAT, YOUR HONOR.

THE COURT: ALL RIGHT. SO DON'T TAKE IT PERSONALLY, BUT YOU ARE NOT MAKING MY JOB ANY EASIER TODAY. ALL RIGHT. MR. SCHECK, YOU WERE SAYING YOU DON'T WANT TO HIGHLIGHT THIS IS WHAT YOU ARE SAYING?

MR. SCHECK: YES, YOUR HONOR. I THINK IF COULD I MAKE THE SUGGESTION THAT THE COURT SHOULD ADMONISH THE JURY IN ANY WAY YOU SEE FIT WITH RESPECT TO THE VIOLATIONS OF THE AGREEMENT, BUT AT THIS POINT IT SEEMS THAT WE DON'T WANT TO BRING ANY MORE ATTENTION TO THAT AND MAKE IT SEEM AS THOUGH THERE IS SOME UNDUE SIGNIFICANCE TO IT. I THINK IF THE JURY MAY THINK, IF THEY ARE TWICE INSTRUCTED TO DISREGARD, THEY MAY THINK THAT THE DEFENSE MAYBE AT THIS POINT --

THE COURT: GIVE THEM THE REDACTED COPY AND LEAVE IT AT THAT.

MR. SCHECK: NO, WE DON'T WANT THE REDACTED COPY, YOUR HONOR, BUT WE WANT THE ADMONISHMENT THAT IT SHOULDN'T HAVE BEEN SHOWN AND AT THIS POINT IT IS OF --

THE COURT: WELL, IF YOU DON'T WANT TO USE A REDACTED COPY, THEN WHAT?

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. COCHRAN: MAY WE HAVE JUST A SECOND TO CAUCUS?

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

MR. SCHECK: AFTER DUE CONSIDERATION, WHAT WE WOULD REQUEST OF THE COURT IS, YES, A REDACTED COPY AND AN INSTRUCTION TO THE JURY THAT THE PROSECUTION HAS BROKEN ITS AGREEMENT AGAIN AND A FURTHER INSTRUCTION TO THE JURY THAT THE ITEMS THERE ARE IRRELEVANT.

THE COURT: LET ME SHOW YOU THE REDACTED COPY AND SEE IF YOU THINK THIS IS TOO OBVIOUS.

(BRIEF PAUSE.)

THE COURT: I GUESS WE OUGHT TO WHITE IT OUT INSTEAD OF BLACK IT OUT.

MR. COCHRAN: FROM HERE I COULD TELL THAT, YOUR HONOR.

THE COURT: WELL, YOU KNOW, WITH WORD PROCESSORS WE DON'T HAVE WHITE OUT ANY MORE. ALL RIGHT. MR. GOLDBERG, I'M GOING TO SUGGEST THAT YOU PROCEED AT THIS POINT WITHOUT THIS EXHIBIT. MR. FUNG CAN TESTIFY WITH REGARDS TO HIS MEMORY WITH REGARDS TO THESE ITEMS, REFER TO HIS OWN REPORTS, AND IF WE USE THIS ITEM AGAIN, NO. 175, IT WILL HAVE WHITE OUT INSTEAD OF BLACK OUT, BECAUSE THAT IS JUST TOO OBVIOUS. ALL RIGHT. LET'S HAVE THE JURORS.

(BRIEF PAUSE.)

THE COURT: THE BUSY BEES TELL ME THEY HAVE A WHITED OUT COPY ON THE WAY.

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

THE COURT: THANK YOU, LADIES AND GENTLEMEN. PLEASE BE SEATED. LET THE RECORD REFLECT THAT WE HAVE BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL AGAIN. LADIES AND GENTLEMEN, THE REASON FOR OUR BRIEF RECESS IS THAT THE EXHIBIT THAT WAS ON THE EVIDENCE DISPLAY SYSTEM, PEOPLE'S NO. 175, MADE REFERENCE TO TWO ITEMS THAT THE COURT HAS PREVIOUSLY DEEMED TO BE IRRELEVANT AND THAT THE PARTIES HAD AGREED NOT TO PRESENT TO YOU. AND THAT EXHIBIT WAS SHOWN TO YOU BY MISTAKE AND YOU WILL NOT BE SHOWN THAT EXHIBIT UNTIL IT HAS BEEN CORRECTED TO DELETE MENTION OF THOSE TWO ITEMS. I KNOW THAT YOU ARE VERY DILIGENT JURORS AND I SAW YOU LOOKING UP AND READING THE ITEMS. YOU ARE TO DISREGARD THE MENTION AS TO ITEMS 15 AND 16, IF YOU WROTE IT DOWN, READ IT OR RECOLLECT IT. YOU ARE TO DISREGARD MENTION OF THOSE TWO ITEMS. PROCEED. AND I MIGHT ADD, YOU ARE NOT TO SPECULATE AS TO WHAT THOSE ITEMS WERE.

Q: BY MR. GOLDBERG: OKAY. SO AT ANY RATE, MR. FUNG, DID YOU MAKE A DECISION THEN TO ASSIGN ITEM NO. 17 TO THE BLOOD VIAL?

A: YES.

Q: AND DID YOU THEN MAKE A DECISION TO ASSIGN NO. 18 TO A DIFFERENT ITEM?

A: YES.

Q: AND WHAT ITEM WAS THAT?

A: THAT WAS THE PAIR OF TENNIS SHOES I HAD RECEIVED FROM DETECTIVE LANGE.

Q: NOW, ON THIS DATE, JUNE THE 14TH, APPROXIMATELY HOW LATE WOULD YOU SAY THAT YOU WORKED THERE AT THE SCIENTIFIC INVESTIGATIONS DIVISION?

A: APPROXIMATELY 7:30.

Q: OKAY. AND WERE YOU FILLING OUT YOUR PAPERWORK THE WHOLE TIME OR WHAT WERE YOU DOING?

A: I WAS FILLING OUT PAPERWORK. I MAY HAVE TAKEN A COUPLE BREAKS HERE AND THERE.

Q: WHERE WERE YOU FILLING OUT THE PAPERWORK? DO YOU KNOW WHAT ROOM?

A: I WAS DOING THAT IN THE EVIDENCE PROCESSING ROOM.

Q: THAT IS THE SAME ROOM THAT THE DRYING PROCESS OCCURS IN?

A: YES.

Q: NOW, DIRECTING YOUR ATTENTION TO THE DATE OF JUNE THE 15TH OF 1994 --

A: YES.

Q: -- DID YOU GO TO THE SCIENTIFIC INVESTIGATIONS DIVISION?

A: YES, I DID.

Q: AND IS THAT ALSO AT PIPER TECH?

A: YES.

Q: DID YOU RECEIVE SOME MORE EVIDENCE FROM ANOTHER CRIMINALIST IN THE MORNING OF THAT DATE?

A: YES, I DID.

Q: WHAT DID YOU RECEIVE?

A: I RECEIVED THE VICTIM'S REFERENCE BLOOD SAMPLE OR BLOOD VIALS.

Q: YOU MEAN FROM THE CORONER -- THAT PRESUMABLY CAME FROM THE CORONER'S OFFICE?

A: YES.

Q: WHO GAVE THOSE TO YOU?

A: THOSE WERE GIVEN TO ME BY CRIMINALIST YAMAUCHI.

Q: ON THIS DATE ABOUT MR. YAMAUCHI SAMPLED SOME MORE ITEMS AT AROUND TEN O'CLOCK IN THE MORNING?

MR. SCHECK: OBJECTION, YOUR HONOR.

THE COURT: SUSTAINED. FOUNDATION.

Q: BY MR. GOLDBERG: OKAY. SIR, TO YOUR KNOWLEDGE DID MR. YAMAUCHI SAMPLE SOME ITEMS?

A: YES.

Q: WHERE DID THAT TAKE PLACE?

A: THAT OCCURRED IN THE EVIDENCE PROCESSING ROOM.

Q: DID YOU MAKE SOME NOTES REGARDING WHAT MR. YAMAUCHI SAMPLED ON THIS DATE?

A: YES.

Q: DO YOU RECALL WHETHER YOU HAD A CONVERSATION WITH HIM AS TO WHAT ITEMS SHOULD BE SAMPLED AND TESTED OR HOW DID THAT WORK?

A: TO THE BEST OF MY RECOLLECTION WE DID DISCUSS WHAT ITEMS WERE MOST RELEVANT TO THE ISSUE AT THAT TIME.

Q: ALL RIGHT. AND DID YOU -- CAN YOU TELL US, USING THE ITEM NUMBERS, WHICH ITEM NUMBERS MR. YAMAUCHI SAMPLED FROM ON THIS OCCASION?

A: MR. YAMAUCHI SAMPLED ITEMS 23, 34, 25, 31, 33, 12 AND 14.

MR. SCHECK: EXCUSE ME, YOUR HONOR. CAN I LOOK AT WHAT HE HAS?

(BRIEF PAUSE.)

Q: BY MR. GOLDBERG: AFTER THOSE ITEMS WERE SAMPLED, WHAT WERE YOU DOING FOR THE REMAINDER OF THE DAY?

A: ON --

Q: ON THE 15TH?

A: ON THE 15TH I PROCESSED THE BRONCO EVIDENCE AND CONTINUED TO FINISH PROPERTY REPORTS.

Q: OKAY. DID YOU RETURN TO WORK ON THE 16TH?

A: YES, I DID.

Q: AND WHAT WERE YOU WORKING ON ON THE 16TH?

A: ON THE 16TH I PREPARED ALL THE EVIDENCE AND COLLECTED IT FOR FINAL BOOKING AND ENTERED THE EVIDENCE INTO SID PROPERTY.

Q: WHEN YOU ENTERED IT INTO SID PROPERTY, WAS IT IN A SEALED CONDITION?

A: YES, IT WAS.

Q: AND BY ALL THE EVIDENCE YOU MEAN FROM ROCKINGHAM, THE BRONCO AND BUNDY?

A: YES.

MR. SCHECK: YOUR HONOR, THAT WOULD -- OBJECT TO THAT AS VAGUE AT THIS POINT.

THE COURT: SUSTAINED.

MR. GOLDBERG: I DIDN'T.

THE COURT: REPHRASE THE QUESTION.

MR. GOLDBERG: WHICH QUESTION? THE LAST ONE?

THE COURT: YES.

Q: BY MR. GOLDBERG: OKAY. DID THAT INCLUDE THE EVIDENCE FROM BUNDY?

A: YES.

Q: AND ROCKINGHAM?

A: YES.

Q: AND THE BRONCO?

A: YES.

MR. SCHECK: YOUR HONOR, I STILL OBJECT BECAUSE THAT IS VAGUE AS WELL.

THE COURT: OVERRULED. OBVIOUSLY ON THE 15TH. THE JURY CAN FIGURE THAT OUT.

MR. GOLDBERG: MAY I JUST HAVE ONE MOMENT, YOUR HONOR, TO LOOK AT MY NOTES?

THE COURT: YES.

(BRIEF PAUSE.)

Q: BY MR. GOLDBERG: SIR, I'M NOT SURE WHETHER I COVERED THIS, BUT AS TO ITEM NO. 18, THE TENNIS SHOES, WHEN WERE THOSE RECOVERED?

A: THE TENNIS SHOES WERE RECOVERED ON JUNE 14TH EARLY IN THE MORNING.

Q: AND WHO DID YOU RECOVER THEM FROM?

A: ACCORDING TO MY NOTE, DETECTIVE LANGE.

Q: DO YOU RECALL WHERE THAT WAS?

A: THAT WAS IN THE SEROLOGY UNIT IN THE CRIME LAB.

Q: WAS ANYONE ELSE PRESENT OTHER THAN YOU AND MR. LANGE?

A: YES.

Q: WHO?

A: CRIMINALIST MATHESON AND CRIMINALIST YAMAUCHI.

Q: MR. MATHESON, IS HE WHO YOU REFERRED TO PREVIOUSLY AS PRESENTLY THE CHIEF FORENSIC CHEMIST?

A: YES.

Q: OKAY. AND WAS THERE ALSO AN EVIDENCE NUMBER, ITEM NO. 19, THAT YOU RECOVERED?

A: YES.

Q: WHEN WAS THAT RECOVERED?

A: THAT WAS RECOVERED ON JUNE THE 14TH.

Q: WHERE DID YOU RECOVER IT FROM?

A: I REMOVED ITEM 19, WHICH IS HAIRS AND FIBERS, FROM THE GLOVE IN ITEM NO. 9.

Q: DID YOU PACKAGE THEM UP IN SOME WAY?

A: YES, I DID.

Q: AND IN WHERE?

A: I PLACED THEM IN A -- TO THE BEST OF MY RECOLLECTION, A PAPER BINDLE, AND PUT THEM IN A COIN ENVELOPE AND ASSIGNED THEM ITEM NO. 19 IN THEIR OWN ENVELOPE.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MR. GOLDBERG: YOUR HONOR, AT THIS TIME I WOULD LIKE TO MARK ANOTHER EXHIBIT. IT WOULD BE PEOPLE'S 177 FOR IDENTIFICATION.

THE COURT: 177.

MR. GOLDBERG: AND IT IS ACTUALLY A SERIES OF FIVE BOARDS CALLED "LAPD EVIDENCE DISPOSITION SUMMARY."

(BRIEF PAUSE.)

MR. GOLDBERG: PERHAPS WE COULD WAIT FOR JUST ONE MOMENT BEFORE I PUT THEM UP TO SEE WHETHER OR NOT --

(DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

MR. GOLDBERG: OKAY.

MR. GOLDBERG: MAYBE WE COULD PUT UP THE ONE WITH NUMBER "6" AT THE TOP FIRST.

(BRIEF PAUSE.)

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

Q: BY MR. GOLDBERG: MR. FUNG, PERHAPS YOU COULD STEP DOWN FOR A MOMENT AND TAKE A LOOK AT THIS. WE HAVE PUT UP A BOARD THAT HAS BEEN -- YOUR HONOR, MAYBE WE SHOULD MARK THIS, WITH THE COURT'S PERMISSION, 177-A.

THE COURT: 177-A? THE WHOLE BOARD?

MR. GOLDBERG: YES.

THE COURT: OKAY.

(PEO'S 177-A FOR ID = POSTERBOARD)

Q: BY MR. GOLDBERG: MR. FUNG, HAVE YOU SEEN THIS BOARD BEFORE?

A: YES, I HAVE.

Q: AND DID YOU HAVE THE OPPORTUNITY TO CAREFULLY EXAMINE THIS BOARD AND A SERIES OF OTHER BOARDS JUST LIKE THIS ONE?

A: YES.

Q: ALL RIGHT. NOW, DID YOU HAVE AN OPPORTUNITY TO LOOK AT THE PHOTOGRAPHS IN THE VARIOUS CELLS NEXT TO THE NAMES FUNG AND MAZZOLA?

A: YES.

Q: AND IN SEVERAL INSTANCES ON THE OTHER BOARD WERE THERE CELLS THAT JUST HAD YOUR NAME IN IT?

A: YES.

Q: DID YOU ALSO LOOK AT THE CELLS ON ALL THE OTHER BOARDS?

A: YES, I DID.

Q: NOW, WAS THE RESOLUTION IN THE PHOTOGRAPHS GOOD ENOUGH SO THAT YOU COULD SEE WHAT WAS DEPICTED IN THE PHOTOGRAPH?

A: YES.

Q: ALL RIGHT. WITH RESPECT TO LET'S JUST START WITH 6, I DON'T THINK WE HAVE TO GO THROUGH ALL OF THEM, BUT WITH RESPECT TO 6, WHAT IS SHOWN IN PHOTOGRAPH -- IN THE CELL "LAPD -- COLLECTED LAPD" AND "6," NEXT TO "FUNG AND MAZZOLA"?

A: UP IN THE UPPER RIGHT-HAND CORNER IS THE DR NUMBER. HERE IS THE ITEM NUMBER, (INDICATING), AND HERE IS MY INITIALS.

Q: WHAT IS NO. 6, THE ITEM DEPICTED IN THE PHOTOGRAPHS?

A: I'M GOING TO REFER TO MY NOTES.

Q: WELL, I MEAN IS IT A COIN ENVELOPE?

A: YES, IT IS.

Q: OKAY. AND IS THAT THE KIND OF COIN ENVELOPE THAT -- THAT IS THE COIN ENVELOPE THAT WOULD HAVE BEEN USED AT ONE OF THE SCENES?

A: YES.

Q: DO YOU HAVE TO REFER TO YOUR NOTES TO TELL YOU WHICH SCENE IT WAS?

A: THAT SCENE -- NO, I DO NOT NEED TO.

Q: OKAY. WHICH IS THAT?

A: THAT IS FROM THE ROCKINGHAM SCENE.

Q: OKAY. DO YOU NEED TO REFER TO YOUR NOTES TO TELL US WHERE AT THE ROCKINGHAM SCENE THIS WAS COLLECTED FROM?

A: YES.

Q: OKAY. CAN YOU TELL US?

A: YES.

(BRIEF PAUSE.)

THE WITNESS: THAT WAS -- ITEM NO. 6 WAS RECOVERED FROM THE DRIVEWAY CLOSE TO THE ROCKINGHAM ENTRANCE.

Q: BY MR. GOLDBERG: SO IF YOU CAN RECALL BACK TO WHEN WE WERE SHOWING THE FIRST ROCKINGHAM BOARD THAT WE DISCUSSED YESTERDAY, THERE WAS AN ITEM NO. 6?

A: YES.

Q: DO YOU RECALL THAT?

A: (NO AUDIBLE RESPONSE.)

Q: WOULD THIS BE THE ENVELOPE INTO WHICH YOU PLACED THAT ITEM NUMBER, ITEM NO. 6?

A: YES.

Q: ALL RIGHT. NOW, WAS THE DATE THAT YOU DID IT JUNE THE 13TH OF '94?

A: THE DATE I COLLECTED IT?

Q: YES.

A: YES.

Q: ALL RIGHT. NOW, WHEN YOU WENT THROUGH THIS BOARD PREVIOUS TO YOUR TESTIMONY, DID YOU CHECK THE DATES AND THE PHOTOGRAPH NUMBER USING YOUR CRIME SCENE IDENTIFICATION LIST, JUST AS DID YOU A FEW MOMENTS AGO WITH NO. 6?

A: THAT AND MY PROPERTY REPORTS, YES.

Q: OKAY. AND WAS THIS AN ACCURATE SUMMARY OF THAT INFORMATION?

A: YES.

Q: AND THE CRIME SCENE IDENTIFICATION -- THE CRIME SCENE IDENTIFICATION CHECKLIST, IS THAT A DOCUMENT THAT IS MADE IN THE ORDINARY COARSE OF THE CRIME LABORATORY'S BUSINESS WHEN YOU ARE COLLECTING STAINS FROM A SCENE?

A: YES.

Q: RATHER, EVIDENCE?

A: YES.

Q: AND THE PROPERTY REPORTS, ARE THOSE ALSO STANDARD BUSINESS RECORDS THAT ARE USED AT LOS ANGELES POLICE DEPARTMENT?

A: YES.

Q: NOW, WHEN YOU WENT DOWN THIS PARTICULAR BOARD, DID YOU SEE THE PACKAGING INTO WHICH YOU PLACED THE ITEMS THAT WERE COLLECTED ACCURATELY PORTRAYED IN THE PICTURES?

A: YES.

Q: NEXT TO YOUR NAME OR YOUR NAME AND MISS MAZZOLA'S NAME?

A: YES.

Q: AND DID THE PICTURES ACCURATELY PORTRAY THAT PACKAGING?

A: YES.

Q: HOW DO YOU RECOGNIZE THE PACKAGING IN EACH INSTANCE?

A: IN THE PHOTOGRAPHS THERE IS EITHER MY INITIALS OR CRIMINALIST MAZZOLA'S INITIALS OR SOME OTHER IDENTIFYING CHARACTERISTICS, SUCH AS A CORONER'S CASE NUMBER, THAT WOULD BE UNIQUE TO THAT ITEM.

Q: DO YOU ALSO LOOK FOR THE DR NUMBERS?

A: YES.

Q: ALL RIGHT. DID YOU DO THE SAME THING FOR ALL THE OTHER BOARDS IN THIS SERIES?

A: YES.

MR. GOLDBERG: YOUR HONOR, I WOULD LIKE TO PUT UP THE OTHER BOARDS, BUT I JUST NEED TO GET THE WITNESS TO AUTHENTICATE THEM, SO I'M NOT SURE WHETHER WE NEED TO PHYSICALLY DRAG THEM OVER HERE OR NOT. WAS THE COURT PLANNING ON TAKING ITS RECESS FAIRLY SHORTLY?

THE COURT: THREE O'CLOCK.

MR. GOLDBERG: OKAY. ALL RIGHT.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

THE COURT: IF YOU JUST NEED A MOMENT TO RECYCLE YOUR EXHIBITS, GO AHEAD.

MR. GOLDBERG: OKAY.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

MR. GOLDBERG: AS PEOPLE'S 177-B I HAVE A SIMILAR BOARD AND THIS HAS ITEMS 25 THROUGH 44.

THE COURT: ALL RIGHT. 177-B.

(PEO'S 177-B FOR ID = POSTERBOARD)

Q: BY MR. GOLDBERG: SIR, DO YOU ALSO RECOGNIZE THIS EXHIBIT?

A: YES.

Q: AND THIS WAS ONE OF THE OTHER BOARDS THAT YOU TOOK A LOOK AT?

A: YES.

Q: AND DID YOU GO THROUGH THE SAME PROCESS THAT WE JUST DISCUSSED IN CONNECTION WITH 177-A OF VERIFYING THE PHOTOGRAPHS, THE DATES, CORRESPONDING TO EACH ONE OF THE CELLS?

A: YES.

Q: THAT YOU COLLECTED?

A: (NO AUDIBLE RESPONSE.)

Q: AND WAS THE INFORMATION CONTAINED ON THIS BOARD TRUE AND CORRECT?

MR. SCHECK: OBJECTION TO THAT QUESTION, ONLY TO HIS INITIALS.

THE COURT: YES. REPHRASE IT. THE INFORMATION IS ACCURATE AS TO HIS PARTICIPATION, YES. REPHRASE THE QUESTION.

Q: BY MR. GOLDBERG: OKAY. LET ME ASK IT MORE SPECIFICALLY. DID THE PHOTOGRAPH ACCURATELY DEPICT THE PACKAGING OF THE ITEMS, THE VARIOUS ITEMS THAT YOU COLLECTED OR THAT ANDREA MAZZOLA COLLECTED IN YOUR PRESENCE?

A: YES.

Q: AND DID THE DATES ACCURATELY REFLECT WHEN THOSE ITEMS WERE COLLECTED?

A: YES.

Q: ALL RIGHT. NOW, LET'S TAKE A LOOK AT 177-C.

(PEO'S 177-C FOR ID = POSTERBOARD)

MR. GOLDBERG: AND THIS HAS 45 THROUGH 87 -- I'M SORRY, 57.

Q: IS THIS ANOTHER BOARD THAT YOU LOOKED AT, MR. FUNG?

A: YES, IT IS.

Q: AND DID YOU GO THROUGH THE SAME PROCEDURE THAT YOU DESCRIBED WITH RESPECT TO 177-A OF VERIFYING THIS BOARD?

A: YES.

Q: AND DID THE PHOTOGRAPHS IN THE CELLS UNDER "COLLECTED LAPD" NEXT TO YOUR NAME AND/OR ANDREA MAZZOLA'S NAME, ACCURATELY REFLECT THE PACKAGING INTO WHICH THE ITEMS WERE PLACED THAT EITHER YOU COLLECTED OR WERE COLLECTED IN YOUR PRESENCE?

A: YES.

Q: AND WERE THE DATES ALSO ACCURATE?

A: YES.

MR. GOLDBERG: NOW, 177-D.

(PEO'S 177-D FOR ID = POSTERBOARD)

MR. GOLDBERG: THIS CONTAINS ITEMS 59 THROUGH 82.

Q: NOW, LOOKING AT THIS PARTICULAR BOARD, WHEN YOU GO DOWN TO "LAPD COLLECTED" COLUMN, EVERY NAME HERE IS SOMEONE ELSE; IS THAT CORRECT?

A: YES.

Q: SO YOU DID NOT PARTICIPATE IN THE COLLECTION OF THESE ITEMS?

A: YES, THAT'S CORRECT.

MR. GOLDBERG: NOW, LET'S SEE 177-E.

(PEO'S 177-E FOR ID = POSTERBOARD)

(BRIEF PAUSE.)

Q: BY MR. GOLDBERG: SIR, DID YOU GO THROUGH THIS SAME PROCEDURE WITH THIS BOARD THAT YOU WENT THROUGH WITH 177-A?

A: YES.

Q: AND ON THIS BOARD THERE ARE ONLY THREE ITEMS THAT YOU COLLECTED?

A: YES.

Q: THOSE ARE WHICH ITEM NUMBERS?

A: 115, 116 AND 117.

Q: AND DID YOU LOOK AT THE PHOTOGRAPHS TO DETERMINE WHETHER THEY ACCURATELY REFLECT THE PACKAGING THAT YOU PLACED THOSE RESPECTIVE ITEMS IN?

A: YES.

Q: AND DOES THE DATE ACCURATELY REFLECT WHEN YOU DID THAT?

A: YES.

MR. GOLDBERG: OKAY. THANK YOU. FOR THE RECORD, YOUR HONOR, THIS WAS 84 THROUGH 305.

(BRIEF PAUSE.)

Q: BY MR. GOLDBERG: MR. FUNG, DID YOU HAVE OCCASION TO GO OUT TO THE LOCATION AT BUNDY SINCE JULY THE 3RD?

A: YES.

Q: AND WHEN WAS THAT THAT YOU WENT OUT?

A: I HAVE GONE OUT THERE THREE ADDITIONAL TIMES.

Q: DID YOU GO OUT THERE IN FEBRUARY OF THIS YEAR?

A: YES, I DID.

Q: FOR WHAT PURPOSE?

A: I WENT OUT THERE TO TAKE ADDITIONAL MEASUREMENTS WITH SPECIAL AGENT BODZIAK.

MR. SCHECK: EXCUSE ME, YOUR HONOR. MAY I APPROACH TO LOOK AT THE EXHIBITS?

THE COURT: YES.

(BRIEF PAUSE.)

Q: BY MR. GOLDBERG: WAS HE WITH THE FBI?

A: YES.

Q: DO YOU KNOW WHICH DIVISION?

A: HE IS WITH -- I DON'T KNOW WHAT THE NAME OF HIS EXACT DIVISION IS.

Q: BUT IS IT A SCIENTIFIC EVIDENCE TYPE DIVISION?

A: YES.

Q: ALL RIGHT. NOW, WHAT MATERIALS DID YOU BRING WITH YOU OUT TO THE SCENE, IF ANY?

A: WE HAD SOME PHOTOGRAPHS AND MEASURING DEVICES.

Q: OKAY. DID YOU PROVIDE -- DID YOU HAVE PHOTOGRAPHS THERE THAT DEPICTED THE SHOEPRINTS AS THEY EXISTED ON JUNE THE 13TH?

A: YES.

Q: ALL RIGHT. AND DID YOU HAVE OCCASION TO GO OUT AGAIN ON MARCH 25?

A: YES.

Q: AND WHY WERE YOU GOING OUT THEN?

A: I WAS OUT THERE TO TAKE MORE MEASUREMENTS WITH D.A. PERSONNEL.

(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)

Q: BY MR. GOLDBERG: DO YOU RECALL WHO FROM THE D.A.'S OFFICE WAS WITH YOU?

A: MISS MARTINEZ.

Q: THE YOUNG LADY BEHIND ME?

A: YES.

MR. SCHECK: YOUR HONOR, MAY WE APPROACH FOR A MINUTE WITH THE COURT REPORTER?

(THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

THE COURT: WE ARE OVER AT THE SIDE BAR. MR. SCHECK?

MR. SCHECK: I'M SORRY, I HATE TO DO THIS, BUT I DON'T THINK WE HAVE SEEN THESE NOTES AND THESE MEASUREMENTS.

MR. GOLDBERG: YOU HAVE SEEN THESE.

MR. SCHECK: THE ONE THAT I SAW --

MR. GOLDBERG: THIS ONE, THESE TWO --

MR. SCHECK: HE WAS REFERRING TO SOMETHING ELSE. I THINK HE HAD SOMETHING ELSE IN HIS BOOK.

MR. GOLDBERG: THIS, THIS, (INDICATING).

MR. SCHECK: TALKING ABOUT THE LATEST ONES FROM MARCH 21. THESE ARE HIS ORIGINALS. THESE ARE ORIGINALS.

MR. GOLDBERG: THESE ARE MARCH.

MR. SCHECK: BUT THERE IS ANOTHER NOTE IN MARCH THAT HE HAS UP IN FRONT OF HIM THAT HE IS READING FROM THAT ARE NOT THESE.

MR. NEUFELD: WHY DON'T WE GET --

MR. SCHECK: YOU ASKED HIM A QUESTION. I WENT OVER AND LOOKED AT THE NOTES AND THE MEASUREMENTS AND I HAVEN'T SEEN THEM AT ALL.

THE COURT: MR. GOLDBERG, WHY DON'T YOU ASK MR. YAMAUCHI TO STEP OVER HERE TO THE SIDE BAR.

MR. GOLDBERG: MR. FUNG.

(DISCUSSION HELD OFF THE RECORD.)

(MR. FUNG APPROACHES THE SIDE BAR.)

MR. SCHECK: HE WAS READING FROM THAT IN ANSWERING HIS QUESTIONS.

THE WITNESS: I WROTE THOSE DOWN.

THE COURT: 3/25 IS WHAT HE IS LOOKING AT HERE. IS THIS WHAT YOU ARE REFERRING TO?

THE WITNESS: I WROTE THESE DOWN TO REMIND ME OF WHEN I WENT OUT TO THE CRIME SCENE.

MR. SCHECK: I UNDERSTAND, BUT THESE ARE THE MEASUREMENTS, THAT IS THE POINT?

THE WITNESS: UP THERE ON TO --

MR. SCHECK: YEAH.

THE WITNESS: THAT IS A SYNOPSIS OF THIS, (INDICATING).

MR. SCHECK: OF WHICH?

THE WITNESS: OF ALL THIS, (INDICATING).

THE COURT: FOR THE RECORD, WE ARE LOOKING AT A DIVIDER PAGE IN MR. FUNG'S NOTEBOOK. IT APPEARS TO BE A NUMBER OF LINES WHICH THE COURT FINDS TO BE RELATIVELY INNOCUOUS.

MR. SCHECK: YOUR HONOR, IF I MAY JUST STATE THE RELEVANCY SO YOU DON'T THINK THAT I'M BEING OVERLY PICKY?

I THINK THAT FROM THE FACE OF IT, THESE REPRESENT MEASUREMENTS WITH RESPECT TO WHERE THE VARIOUS DIFFERENT ITEMS ARE AT BUNDY AND REMEASUREMENTS THAT ARE MADE AT ANOTHER TIME. THAT IS THE PROBLEM.

THE COURT: ALL RIGHT. MR. FUNG, ARE THESE ROUGH NOTES?

THE WITNESS: YES, THEY ARE.

THE COURT: ARE THEY MEMORIALIZED IN A FORM?

THE WITNESS: NO.

THE COURT: OR A DIAGRAM?

THE WITNESS: THEY ARE AN AID TO ME FOR TESTIMONY AS FAR AS IF THEY WERE TO ASK ME DIFFERENT MEASUREMENTS AND THINGS LIKE THAT, RATHER THAN GOING THROUGH MY NOTES AND --

THE COURT: THAT IS SOMETHING YOU PREPARED FOR TESTIMONY?

THE WITNESS: YES.

THE COURT: ALL RIGHT.

MR. GOLDBERG: WELL, ACTUALLY, I THINK THIS IS COVERED BY THE EVIDENCE CODE WHICH SAYS THAT IF A WITNESS CREATES SOMETHING TO USE FOR HIS TESTIMONY TO REFRESH HIS RECOLLECTION, THEY GET IT. IF HE USES IT TO REFRESH HIS RECOLLECTION. I CAN'T REMEMBER THE CODE SECTION.

THE COURT: ALL RIGHT. WHEN WE TAKE A BREAK, WE WILL GIVE YOU A PHOTOCOPY.

MR. GOLDBERG: BUT SO FAR HE HASN'T USED IT, YOUR HONOR.

THE COURT: ALL RIGHT.

MR. SCHECK: HE JUST USED IT.

MR. NEUFELD: HE JUST USED IT.

MR. GOLDBERG: YOU ARE GETTING IT?

THE COURT: YOU WILL GET IT.

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: ALL RIGHT. THANK YOU, COUNSEL. PROCEED.

MR. GOLDBERG: YOUR HONOR, AT THIS TIME I WOULD LIKE TO MARK A -- WHAT APPEARS TO BE A SET OF NOTES AS PEOPLE'S 178 FOR IDENTIFICATION.

THE COURT: AND YOU HAVE LOOKED AT THEM CAREFULLY?

MR. GOLDBERG: WHAT?

MS. CLARK: YES.

THE COURT: GOOD.

MR. GOLDBERG: I THINK WE ARE FINISHED WITH THE ELMO TODAY ANYWAY, YOUR HONOR.

THE COURT: GOOD.

(PEO'S 178 FOR ID = SET OF NOTES)

MR. GOLDBERG: COUNSEL HAS ALREADY SEEN THEM, BUT I AM JUST GOING TO AUTHENTICATE WITH THE WITNESS. MAY HE APPROACH?

THE COURT: YOU MAY.

Q: BY MR. GOLDBERG: SIR, SHOWING YOU PEOPLE'S 178 FOR IDENTIFICATION, DO YOU RECOGNIZE THAT?

A: YES, I DO.

Q: AND WHAT ARE THOSE?

A: THESE ARE MEASUREMENTS TAKEN OF SHOEPRINTS AT THE BUNDY SCENE.

Q: IS THAT A COMPILATION OF VARIOUS NOTES THAT YOU TOOK ON THE THREE DATES THAT YOU JUST MENTIONED?

A: YES.

Q: NOW, MR. FUNG, WITH RESPECT TO INVESTIGATING A CRIME SCENE, WHICH WE TALKED A LOT ABOUT YESTERDAY, IS THERE ANY SINGLE RIGHT WAY OR RIGHT FORMULA FOR GOING ABOUT INVESTIGATING A CRIME SCENE?

A: THERE ARE GENERAL GUIDELINES THAT PEOPLE FOLLOW; HOWEVER, THERE IS NO SINGLE RIGHT WAY IN ANY CIRCUMSTANCE.

Q: IS THE WAY THAT YOU GO ABOUT INVESTIGATING A CRIME SCENE SUBJECT TO DIFFERENT OPINIONS OF DIFFERENT FORENSIC EXPERTS, CRIMINALISTS?

A: YES.

Q: OKAY. COULD TWO FORENSIC EXPERTS HAVE DIFFERENT IDEAS ABOUT EXACTLY WHAT TO DO AT A CRIME SCENE?

A: YES.

Q: AND SIR, IS THERE A RECOGNIZED PRINCIPLE IN CRIMINALISTICS THAT IN EVERY CRIME SCENE THAT HAS EVER BEEN PROCESSED IT IS ALWAYS POSSIBLE TO USE HINDSIGHT TO CRITICIZE THE WORK AT A LATER DATE?

MR. SCHECK: OBJECTION, LEADING.

THE COURT: SUSTAINED.

Q: BY MR. GOLDBERG: SIR, IS THERE ANY RECOGNIZED METHOD WITHIN THE CRIMINALISTICS FIELD REGARDING WHETHER OR NOT IT IS POSSIBLE TO PROCESS A CRIME SCENE IN A WAY THAT NO ONE COULD EVER CRITICIZE?

MR. SCHECK: OBJECTION.

THE COURT: GROUND?

MR. SCHECK: IT IS LEADING. IT CALLS FOR SPECULATION.

THE COURT: SUSTAINED. IT IS LEADING.

MR. GOLDBERG: THAT IS OKAY, YOUR HONOR. I DON'T THINK I HAVE ANY FURTHER QUESTIONS. THANK YOU.

THE COURT: ALL RIGHT. MR. SCHECK.

MR. SCHECK: THANK YOU.

MR. SCHECK: GOOD AFTERNOON, LADIES AND GENTLEMEN OF THE JURY. THE JURY: GOOD AFTERNOON.

CROSS-EXAMINATION

BY MR. SCHECK:

Q: GOOD AFTERNOON, MR. FUNG. HOW ARE YOU, SIR?

A: GOOD AFTERNOON.

Q: MR. FUNG, I THOUGHT WE WOULD START WITH DISCUSSING THE ROLE OF THE CRIMINALIST. WOULD YOU AGREE THAT IT IS THE ROLE OF THE CRIMINALIST TO PRESERVE THE INTEGRITY OF EVIDENCE?

A: THAT IS ONE OF THE ROLES, YES.

Q: AND THAT WOULD MEAN THAT IT IS YOUR JOB TO MAKE SURE THAT EVIDENCE IS NOT CONTAMINATED?

A: IN SOME RESPECTS, YES.

Q: IT IS NOT COMPROMISED OR ALTERED?

MR. GOLDBERG: I OBJECT TO THE WORD "COMPRISED" AS VAGUE.

THE COURT: VAGUE.

Q: BY MR. SCHECK: IT IS NOT ALTERED BY THE PEOPLE GATHERING IT?

MR. GOLDBERG: WELL, I OBJECT TO THAT BECAUSE AGAIN IT IS VAGUE.

THE COURT: OVERRULED.

THE WITNESS: IN ALL CASES?

Q: BY MR. SCHECK: YES. WHEN YOU GET TO A CRIME SCENE, YOU SEE EVIDENCE, YOU DON'T WANT IT TO BE COMPROMISED IN THE GATHERING IN TERMS OF THE WAY YOU ORIGINALLY FOUND IT. YOU WANT IT TO BE IN THE SAME CONDITION AS MUCH AS YOU POSSIBLY CAN AS YOU ORIGINALLY FOUND IT?

MR. GOLDBERG: COMPOUND.

THE COURT: OVERRULED. YOU CAN ANSWER THE QUESTION.

THE WITNESS: NOT IN ALL CASES. THERE MAY BE SOME CASES WHERE IT MIGHT BE RAINING OUT AND YOU WOULD WANT TO MOVE THE EVIDENCE TO PRESERVE IT.

Q: BY MR. SCHECK: RIGHT. TO PRESERVE IT IN THE ORIGINAL CONDITION THAT YOU FOUND IT, RIGHT?

A: (NO AUDIBLE RESPONSE.)

MR. GOLDBERG: WELL, IT IS VAGUE.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: WELL, YOU SAID THAT SOMETIMES IT MIGHT BE RAINING OUT SO YOU WANT TO PROTECT THE EVIDENCE SO THAT YOU CAN GATHER IT IN AS CLOSE AS POSSIBLE TO ORIGINAL CONDITION? ISN'T THAT WHAT YOU JUST SAID?

A: NOT EXACTLY. YOU WOULD WANT TO PRESERVE IT TO MAINTAIN ITS INTEGRITY AND SO THAT IT WOULD RETAIN ITS VALUE TO AN ANALYSIS.

Q: OKAY. AND IT IS YOUR JOB TO MAKE SURE AS MUCH AS POSSIBLE THAT EVIDENCE IS NOT CORRUPTED?

MR. GOLDBERG: WELL, I OBJECT TO THE WORD "CORRUPTED."

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: WELL, THAT EVIDENCE IS NOT TAMPERED WITH?

A: YES.

Q: AND WOULD YOU AGREE THAT IT IS THE ROLE OF THE CRIMINALIST TO BE CAREFUL?

A: YES.

MR. GOLDBERG: WELL, I OBJECT TO THAT. IT IS OVERBROAD.

THE COURT: OVERRULED.

Q: BY MR. SCHECK: AND THAT YOU SHOULD NOT BE IN A HURRY WHEN EXAMINING EVIDENCE AT A CRIME SCENE?

A: GENERALLY, YES.

Q: AND YOU WOULD AGREE THAT RECOGNITION OF NEW CLUES BEYOND WHAT THE DETECTIVES SHOW YOU IS IMPORTANT?

A: IT CAN BE, YES.

Q: AND YOU WOULD AGREE THAT SOMETIMES EXTREMELY IMPORTANT EVIDENCE IS NOT OBVIOUS AS SOON AS YOU ARRIVE AT THE CRIME SCENE?

A: YES.

Q: CRIMINALISTS WANT TO GO THROUGH A PROCESS OF CAREFUL RECONSTRUCTION UPON ARRIVAL AT THE SCENE?

MR. GOLDBERG: I OBJECT TO THE PHRASE "RECONSTRUCTION" AS VAGUE.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: HAVE YOU HEARD THE TERM "CRIME SCENE RECONSTRUCTION"?

A: YES.

Q: AND THAT HAS A FORMAL MEANING, DOES IT NOT?

A: YES.

Q: AND WHAT DO YOU KNOW IT TO MEAN?

A: A RECONSTRUCTION IS USING THE PHYSICAL EVIDENCE AT THE CRIME SCENE TO COME UP WITH A SCENARIO AS TO WHAT HAPPENED AT THAT CRIME SCENE.

Q: AND SO WHEN YOU GET TO A CRIME SCENE, AS MUCH AS POSSIBLE, A CRIMINALIST WOULD WANT TO LOOK AT ALL THE EVIDENCE AND BEGIN THE PROCESS OF RECONSTRUCTION IN AN EFFORT TO FIND RELEVANT CLUES?

MR. GOLDBERG: WELL, I OBJECT THAT IT IS COMPOUND.

THE COURT: OVERRULED. DO YOU UNDERSTAND THE QUESTION?

THE WITNESS: YES.

THE COURT: ALL RIGHT. YOU MAY ANSWER.

THE WITNESS: NOT IN ALL CASES.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

Q: BY MR. SCHECK: WOULD YOU AGREE THAT IT IS A PRINCIPLE OF CRIME SCENE CONTAMINATION TO FIRST PROTECT THE SCENE?

A: CRIME SCENE CONTAMINATION?

MR. GOLDBERG: WAIT.

Q: BY MR. SCHECK: EXCUSE ME, CRIME SCENE INVESTIGATION, TO FIRST PROTECT THE SCENE?

A: YES.

Q: ALL RIGHT. YOU DON'T WANT TO TRAMPLE OR OBLITERATE EVIDENCE?

A: IF IT CAN BE AVOIDED.

Q: YOU COULDN'T WANT TO CONTAMINATE THE SCENE?

A: YES.

Q: YOU WOULD WANT TO CONDUCT A QUICK SEARCH FOR PERISHABLE EVIDENCE?

A: YES.

Q: AND THEN YOU WOULD WANT TO RETREAT AND APPROACH THE SCENE SLOWLY AND METHODICALLY?

A: YES.

Q: AND YOU RECOGNIZE I AM READING FROM --

MR. GOLDBERG: WAIT A MINUTE, YOUR HONOR. I OBJECT TO THAT.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: FAIR ENOUGH?

A: YES.

Q: WOULD YOU AGREE THAT IT IS IMPORTANT FOR A CRIMINALIST NOT TO MAKE ASSUMPTIONS IN APPROACHING A SCENE?

A: YES.

MR. GOLDBERG: WELL --

Q: BY MR. SCHECK: IT IS IMPORTANT NOT TO TAKE SHORTCUTS?

MR. GOLDBERG: OBJECTION, VAGUE AS TO THE WORD "SHORTCUTS."

THE COURT: SUSTAINED. REPHRASE THE QUESTION.

Q: BY MR. SCHECK: IT WOULD BE IMPORTANT NOT TO RUSH TO JUDGMENT?

MR. GOLDBERG: OBJECT. THAT IS ARGUMENTATIVE.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: WOULD YOU AGREE THAT IT IS IMPORTANT FOR A CRIMINALIST TO BE ACCURATE?

A: YES.

Q: ACCURATE AND COMPLETE IN MAKING NOTES?

A: IN MAKING RELEVANT NOTES, YES.

Q: ACCURATE ABOUT THE NUMBER OF ITEMS THAT YOU COLLECT?

A: YES.

Q: ABOUT THE NATURE OF THE ITEMS YOU COLLECT?

A: WHAT DO YOU MEAN BY "NATURE"?

Q: DESCRIPTION OF THE NATURE OF THE ITEMS YOU COLLECT?

A: YES.

Q: WHO COLLECTED THEM?

A: IN THE NOTES?

Q: YES.

A: NOT IN ALL CASES, NO.

Q: WELL, YOU WERE REFERRING BEFORE TO YOUR CRIME SCENE CHECKLIST, CORRECT?

A: YES.

Q: AND IN YOUR CRIME SCENE CHECKLIST THERE ARE BOXES, ARE THERE NOT?

A: YES, THERE ARE.

Q: AND AS YOU GO ACROSS THE PAGE IN THE CRIME SCENE CHECKLIST, THE BOXES REFER TO ITEMS COLLECTED AND THEN NEXT TO THAT IS "BY," CORRECT?

A: YES.

Q: AND THAT IS A BOX WHERE YOU ARE SUPPOSED TO FILL OUT WHO COLLECTED THE ITEM?

A: THE CRIME SCENE --

Q: IS THAT TRUE?

A: NO.

MR. GOLDBERG: WAIT A MINUTE. I WOULD ASK HIM TO A ALLOW --

THE COURT: HE JUST SAID NO. HE HAS FINISHED HIS ANSWER. PROCEED.

Q: BY MR. SCHECK: AS A CRIMINALIST DO YOU WANT TO BE ACCURATE ABOUT WHERE THE ITEM IS COLLECTED?

A: YES.

Q: AND YOU WANT TO BE ACCURATE ABOUT HOW THE ITEM IS COLLECTED?

A: (NO AUDIBLE RESPONSE.)

Q: WHAT METHOD IS USED?

A: IN THE NOTES?

Q: IN THE NOTES OR IN TERMS OF YOUR OWN RECOLLECTIONS? YOU WANT TO BE ACCURATE AS TO HOW ITEMS ARE COLLECTED?

A: AS LONG AS THEY ARE COLLECTED IN THE STANDARD PROCEDURE, I DON'T SEE THE NEED FOR TAKING NOTES.

Q: WELL, AREN'T THERE DIFFERENT WAYS TO COLLECT VARIOUS ITEMS OF EVIDENCE?

A: YES, THERE ARE.

Q: ALL RIGHT. AND DON'T YOU THINK IT IS IMPORTANT TO MAKE NOTES ABOUT EXACTLY WHICH ONE WAS USED ON WHAT OCCASION?

A: IF IT WAS RELEVANT.

Q: ALL RIGHT. AND ISN'T IT IMPORTANT, AS YOU ARE PROCESSING A CRIME SCENE, TO KEEP ACCURATE NOTES ABOUT THE ORDER OF COLLECTION?

A: I DON'T SEE WHERE THE ORDER OF COLLECTION WOULD NECESSARILY HAVE TO BE DOCUMENTED, AS LONG AS YOU HAD A TIME FRAME FROM WHICH YOU COULD SAY WHEN THEY WERE.

Q: WELL, ON YOUR CRIME SCENE CHECKLIST, RIGHT NEXT TO THE BOX THAT INDICATES "BY" THERE IS ANOTHER BOX THAT INDICATES "TIME"; IS THERE NOT?

A: YES, THERE IS.

Q: AND THE PURPOSE OF THE BOX THAT INDICATES "TIME" IS TO HAVE THE CRIMINALIST WRITE DOWN WHEN AN ITEM WAS COLLECTED?

A: IN CERTAIN CIRCUMSTANCES, YES.

Q: AND WHEN YOU HAVE A LOT OF DIFFERENT ITEMS, IN ORDER TO MINIMIZE CONFUSION, ISN'T IT A GOOD IDEA TO WRITE DOWN THE TIME OF COLLECTION?

A: NOT NECESSARILY.

Q: AND IN YOUR JUDGMENT, WHEN YOU HAVE A LOT OF DIFFERENT ITEMS OF EVIDENCE THAT YOU ARE PROCESSING, IT IS NOT A GOOD IDEA TO MEMORIALIZE THE ORDER OF COLLECTION?

A: NOT UNLESS IT WAS GOING TO BE RELEVANT AT SOME LATER TIME.

Q: NOW, WOULD YOU AGREE THAT IT IS IMPORTANT FOR A CRIMINALIST TO CREATE AN ACCURATE CHAIN OF CUSTODY?

A: YES.

MR. GOLDBERG: WELL, THAT IS --

Q: BY MR. SCHECK: AND COULD YOU TELL US, PLEASE, WHAT YOU MEAN BY A "CHAIN OF CUSTODY"? WHAT IS YOUR UNDERSTANDING OF IT?

A: THE CHAIN OF CUSTODY IS A RECORD OF WHEN EVIDENCE LEAVES ONE PERSON'S CUSTODY AND IS GIVEN TO ANOTHER PERSON'S CUSTODY.

Q: ALL RIGHT. AND THE REASON THAT IT IS IMPORTANT TO KEEP ACCURATE RECORDS ABOUT THE CHAIN OF CUSTODY IS -- ONE OF THE REASONS IS TO PREVENT SAMPLES FROM GETTING MIXED UP?

A: WELL, THAT IS NOT MY UNDERSTANDING OF WHY CHAIN OF CUSTODY IS NECESSARY.

Q: YOU DON'T THINK THAT AN ACCURATE SET OF RECORDS ABOUT WHERE AN ITEM WENT, WHO RECEIVED IT NEXT, IS OF ASSISTANCE IN PREVENTING MIX-UPS?

A: THAT MAY BE A SECONDARY --

Q: THAT IS A REASON?

A: THAT IS ONE OF THE REASONS.

Q: OKAY. ANOTHER REASON TO HAVE AN ACCURATE CHAIN OF CUSTODY IS TO GUARD AGAINST CROSS-CONTAMINATION OF SAMPLES?

A: THAT IS NOT MY UNDERSTANDING OF CHAIN OF CUSTODY.

Q: YOU DON'T THINK CHAIN OF CUSTODY HAS ANYTHING TO DO WITH CROSS-CONTAMINATION OF SAMPLES?

A: THAT IS NOT MY UNDERSTANDING OF CHAIN OF CUSTODY.

MR. SCHECK: ALL RIGHT.

THE COURT: IS THIS A GOOD POINT?

MR. SCHECK: ONE MORE QUESTION.

THE COURT: ONE MORE.

Q: BY MR. SCHECK: AND WOULD YOU AGREE THAT ONE OF THE IMPORTANT REASONS TO HAVE AN ACCURATE CHAIN OF CUSTODY IS TO PREVENT ANYONE FROM TAMPERING WITH EVIDENCE?

A: THAT IS -- THAT IS A REASON, YES.

MR. SCHECK: THANK YOU.

THE COURT: ALL RIGHT. LADIES AND GENTLEMEN, WE ARE GOING TO TAKE OUR AFTERNOON BREAK. THIS WILL BE A 15-RECESS. REMEMBER MY ADMONITIONS TO YOU. DON'T DISCUSS THE CASE AMONG YOURSELVES, FORM ANY OPINIONS ABOUT THE CASE, DON'T ALLOW ANYBODY TO COMMUNICATE WITH YOU, DO NOT CONDUCT ANY DELIBERATIONS. SEE YOU BACK IN FIFTEEN MINUTES. MR. FUNG, FIFTEEN MINUTES.

(RECESS.)

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, OUT OF THE PRESENCE OF THE JURY:)

THE COURT: ALL RIGHT. BACK ON THE RECORD IN THE SIMPSON MATTER. LET'S HAVE THE JURY OUT, PLEASE.

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

THE COURT: THANK YOU, LADIES AND GENTLEMEN. BE SEATED. ALL RIGHT. LET THE RECORD REFLECT WE'VE BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL. MR. FUNG IS PRESENTLY ON THE WITNESS STAND UNDERGOING CROSS-EXAMINATION BY MR. SCHECK. GOOD AFTERNOON AGAIN, MR. FUNG. YOU ARE REMINDED YOU ARE STILL UNDER OATH, SIR. AND, MR. SCHECK, YOU MAY CONTINUE WITH YOUR CROSS-EXAMINATION.

Q: BY MR. SCHECK: MR. FUNG, YOU MENTIONED JUST BEFORE WE BROKE THAT WHEN YOU'RE FILLING OUT YOUR ITEM DESCRIPTION FORM, YOU ONLY WILL FILL IN THE TIME OF COLLECTION WHEN YOU THINK IT'S RELEVANT. IS THAT WHAT YOU SAID?

A: YES.

Q: NOW, IS THERE ANYTHING IN PARTICULAR THAT WOULD MAKE YOU REALIZE AT THE MOMENT THAT YOU'RE COLLECTING THE ITEM THAT LATER ON DOWN THE LINE, THE TIME OF THE COLLECTION WAS GOING TO BE RELEVANT?

A: IT IS MY GENERAL PRACTICE, MY PERSONAL GENERAL PRACTICE TO WRITE DOWN THE TIME WHEN IT IS OUTSIDE THE TIME FRAME OF MY ACTUAL COLLECTION. IF I, FOR INSTANCE, WENT TO A CRIME SCENE AT 8:00 O'CLOCK AND LEFT AT 12:00, IF THERE WAS ADDITIONAL EVIDENCE WHICH SOMEHOW WAS GIVEN TO ME BY A DETECTIVE OR SOMETHING LIKE THAT, I WOULD THEN WRITE DOWN THE TIME FRAME.

Q: WELL, WHY DON'T WE LOOK AT ONE OF THESE FORMS.

MR. SCHECK: YOUR HONOR, I WOULD LIKE TO MARK THE ORIGINAL. WELL, LET ME ESTABLISH THIS.

Q: BY MR. SCHECK: THE NOTES THAT YOU MAKE, THE ORIGINAL NOTES THAT YOU MAKE ON YOUR FIELD CHECKLISTS, WHAT HAPPENS TO THEM?

A: IN THIS CASE OR IN GENERAL?

Q: IN GENERAL.

A: IN GENERAL, THEY'RE FILED AWAY IN A FILE CABINET THAT STORES THESE DOCUMENTS.

Q: UH-HUH. THERE'S A RULE AT THE SCIENTIFIC INVESTIGATION DIVISION THAT WHEN YOU MAKE OUT ORIGINAL NOTES, THE ORIGINAL NOTES ARE TO BE STORED IN A PARTICULAR PLACE AND PRESERVED?

A: I DON'T KNOW IF IT'S A RULE, BUT THAT'S WHAT HAPPENS.

Q: WELL, IN THE FIELD PROCEDURES MANUAL, YOU'RE NOT FAMILIAR WITH ANY REGULATION THAT SAYS THAT ALL ORIGINAL NOTES ARE TO BE PRESERVED AT THE LABORATORIES SO OTHERS CAN LOOK AT THEM AND GET ACCESS?

MR. GOLDBERG: I OBJECT BECAUSE IT ASSUMES A FACT NOT IN EVIDENCE.

THE COURT: SUSTAINED. FOUNDATION. FOUNDATION.

Q: BY MR. SCHECK: ARE YOU FAMILIAR WITH A FIELD PROCEDURES MANUAL?

A: I AM -- I KNOW THAT ONE HAS BEEN WRITTEN. I -- BUT IT HAS NOT BEEN PUT IN EFFECT.

Q: WELL, ISN'T THERE A FIELD PROCEDURES MANUAL THAT IS IN THE TRUCK THAT YOU GO TO CRIME SCENES WITH?

A: I'M NOT AWARE OF A PROCEDURES MANUAL IN THE TRUCK, NO.

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

Q: BY MR. SCHECK: ARE YOU SAYING, SIR, THAT -- ARE YOU AWARE OF THE EXISTENCE OF A DOCUMENT OF 11 VOLUMES ENTITLED "THE CRIME SCENE FIELD UNIT PROTOCOL AND PROCEDURES MANUAL"?

A: I HAVE NOT BEEN GIVEN THAT COPY, NO.

Q: YOU'VE NEVER SEEN SUCH A DOCUMENT?

A: NO.

Q: AND YOU HAVE NO KNOWLEDGE AS TO WHETHER OR NOT SUCH A DOCUMENT, SUCH A MANUAL IS ACTUALLY REQUIRED TO BE KEPT IN YOUR CRIMINALISTIC TRUCK FOR REFERENCE?

A: THAT'S CORRECT.

Q: WELL, MOVING BACK TO YOUR EVIDENCE COLLECTION SHEETS, THERE IS AN ORIGINAL SET OF DOCUMENTS; IS THAT CORRECT?

A: YES.

Q: ALL RIGHT. AND YOU HAVE SEEN -- YOU'VE REVIEWED THE ORIGINAL SET OF DOCUMENTS IN THIS CASE; HAVE YOU NOT?

A: YES, I HAVE.

Q: ALL RIGHT. NOW, THERE'S AN ORIGINAL PAGE THAT REFERS TO THE ITEMS THAT YOU COLLECTED AT BUNDY?

A: COULD YOU --

MR. SCHECK: YOUR HONOR, I WOULD LIKE THIS TO BE MARKED DEFENSE NEXT IN ORDER. 1069.

THE COURT: 1069.

MR. GOLDBERG: YOUR HONOR, MAY WE APPROACH ABOUT THAT?

THE COURT: ABOUT MARKING AN EXHIBIT?

MR. GOLDBERG: WELL, THE ORIGINAL.

THE COURT: ALL RIGHT. WITH THE COURT REPORTER.

(THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

THE COURT: ALL RIGHT. WE'RE OVER AT THE SIDEBAR. MR. GOLDBERG.

MR. GOLDBERG: YOUR HONOR, THESE ARE THE ORIGINALS OF THE NOTES THAT COUNSEL HAD SUBMITTED TO A QUESTIONED DOCUMENT EXAMINER AND THIS WAS FOR SOME SORT OF ANALYSIS ON -- I THINK MAYBE IT WAS A TRACE ANALYSIS. I DON'T KNOW EXACTLY WHAT IT WAS AND WHAT THE PURPOSE OF DOING IT WAS. BUT IF IN FACT THEY ARE GOING TO OFFER THAT INTO EVIDENCE, THEN THE PROSECUTION MIGHT NEED TO ACTUALLY LOOK AT THESE ITEMS AND DO THE SAME KIND OF ANALYSIS. SO AT THIS POINT, I DON'T SEE ANY REASON TO INTRODUCE THE ORIGINAL AS OPPOSED TO A XEROX COPY.

MR. SCHECK: WELL, I THINK THAT JUST AS WE'VE DONE ALREADY, IF THE PROSECUTION WANTS TO ANALYZE THAT, THEY CAN GET AN ORDER FROM THE COURT, THE DOCUMENT CAN BE TAKEN FROM THE COURT AND GIVEN TO THEIR DOCUMENT EXAMINER. MR. GOLDMAN WENT OVER THESE DOCUMENTS IN GREAT DETAIL WHEN I DID OR WHAT WAS EXAMINED WHEN IT WAS EXAMINED.

MR. GOLDBERG: WELL, WE'VE ALSO BEEN TOLD BY THE SCIENTIFIC INVESTIGATION EVIDENCE PEOPLE THEY WANT TO KEEP A COMPLETE SET OF THEIR DOCUMENTS. IF WE START TAKING IT APART AND INTRODUCING TWO PAGES THERE AND THREE PAGES THERE, THEN OUR ONLY SET OF THE ORIGINALS IS GONE.

THE COURT: WHY DO WE NEED TO USE THE ORIGINAL FOR THIS PURPOSE?

MR. SCHECK: WELL, THIS PARTICULAR PURPOSE -- MY ONLY PURPOSE IN SHOWING THIS DOCUMENT AT THIS TIME TO THE WITNESS IS THAT -- IS TO IMPEACH HIM WITH THE FACT THAT THE ORIGINAL DOES NOT HAVE ANY NOTATIONS AS TO WHO COLLECTED THE EVIDENCE AND HE HAS NOW RECONSTRUCTED ANOTHER SET OF NOTES FROM SOME -- IN SOME FASHION THAT I'M GOING TO EXPLORE.

THE COURT: I'LL ALLOW YOU TO USE THE ORIGINAL FOR THIS PURPOSE, BUT WHAT WILL GO INTO EVIDENCE WILL BE A PHOTOCOPY OF THAT.

MR. SCHECK: CAN I MAKE THIS REQUEST OF THE COURT THEN? I WOULD -- I HAVE NO PROBLEM WHATSOEVER WITH THE ENTIRE VOLUME OF ORIGINAL EXHIBITS BEING HELD BY THE COURT SO THAT NOBODY CAN GET TO IT IF THAT'S THEIR PROBLEM OR FEAR, AND IF THEY WANT TO DO ANY SUBSEQUENT DOCUMENT EXAMINING, TESTING, THEY CAN.

THE COURT: NO. BUT I THINK THE PUBLIC ENTITY IS ENTITLED TO KEEP THEIR ORIGINAL DOCUMENT IF A PHOTOCOPY WILL SUFFICE FOR THIS PURPOSE. FOR THE PURPOSE YOU TOLD ME, A PHOTOCOPY WILL SUFFICE. ALL RIGHT. LET'S GO.

(THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

THE COURT: ALL RIGHT. WHAT WAS THE NEXT IN ORDER?

THE CLERK: 1069.

THE COURT: 1069.

(DEFT'S 1069 FOR ID = 2-PAGE DOCUMENT)

MR. SCHECK: YOUR HONOR, MAY I PUT PAGE 1 OF THE TWO-PAGE DOCUMENT, 1069, ON THE ELMO?

THE COURT: YES.

MR. SCHECK: MAYBE WE COULD JUST -- MAYBE IT WILL BE CLEARER IF WE GO CLOSE ON JUST THE TOP OF THE PAGE.

Q: BY MR. SCHECK: OKAY. NOW, MR. FUNG, THIS REPRESEN -- THIS DOCUMENT THAT WE HAVE UP ON THE ELMO IS THE ORIGINAL OF THE EVIDENCE COLLECTION REPORT THAT YOU FILLED OUT FOR THE ITEMS SEIZED AT BUNDY; IS THAT CORRECT?

A: IT'S A PORTION OF IT, YES.

Q: ALL RIGHT. AND CALLING YOUR ATTENTION TO THE -- JUST EVEN THE FIRST ITEM THAT REFERS TO THE SET OF KEYS; IS THAT CORRECT?

A: YES.

Q: ALL RIGHT. NOW, NEXT TO THAT, THERE'S A BOX THAT WE WERE REFERRING TO WITH THE WORD "BY" IN IT, CORRECT?

A: YES.

Q: ALL RIGHT. AND THAT WAS NOT FILLED OUT CONTEMPORANEOUSLY, WAS IT?

A: THAT'S CORRECT.

Q: WASN'T FILLED OUT AT THE TIME THAT IT WAS COLLECTED?

A: THAT'S RIGHT.

Q: AND AS YOU GO DOWN THE PAGE AND YOU TALK ABOUT THE NEXT ITEM, THE PAGER, THAT WASN'T FILLED OUT EITHER, WAS IT?

A: YES.

Q: AND AS YOU GO DOWN THE PAGE, THERE WAS NO NOTATION WHATSOEVER AS TO WHO COLLECTED WHICH ITEM?

A: THAT'S CORRECT.

Q: ALL RIGHT. NOW --

MR. SCHECK: I WOULD LIKE TO HAVE THIS DOCUMENT MARKED AS DEFENDANT'S NEXT IN ORDER. THAT WOULD BE 1070. LET'S PUT THIS UP ON THE ELMO.

(DEFT'S 1070 FOR ID = COPY OF 2-PAGE DOC.)

Q: BY MR. SCHECK: NOW, ON THIS -- THIS -- THIS ITEM IS A COPY OF THE EVIDENCE COLLECTION SHEET FROM BUNDY THAT YOU FILLED OUT WITH SOME ADDITIONS BEFORE YOU CAME TO COURT?

A: YES.

Q: AND WHAT YOU DID IS, YOU RECONSTRUCTED WHO COLLECTED WHAT?

A: YOU MEAN RECONSTRUCTED --

Q: YOU FILLED IN THE BOX THAT HAS "BY"?

A: YES.

Q: AND WHEN DID YOU DO THAT?

A: THAT WAS SOMETIME AFTER THE CRIME SCENE HAD BEEN DONE.

Q: HOW MANY MONTHS?

A: MAYBE TWO OR THREE.

Q: AND DID YOU DO THIS -- WAS THIS YOUR DECISION?

A: IT HAD BECOME AN ISSUE AND WE DECIDED TO FILL THAT IN AS BEST WE COULD.

Q: WHO'S THE "WE"?

A: CRIMINALIST MAZZOLA AND MYSELF.

Q: SO YOU AND CRIMINALIST MAZZOLA ABOUT TWO MONTHS LATER --

A: ROUGHLY.

Q: -- HAD TO TRY TO RECONSTRUCT WHO COLLECTED WHAT?

A: WE DID THAT, YES.

Q: IS THAT WHAT YOU MEAN BY SOMETHING BECOMING RELEVANT?

A: IT HAD BECOME AN ISSUE.

Q: SIR, ISN'T IT TRUE THAT THE IDEA OF A FORM LIKE THIS IS THAT AS YOU CAREFULLY GO THROUGH THE CRIME SCENE, YOU'RE SUPPOSED TO FILL IN WHO COLLECTED EACH ITEM AS YOU DO IT SO THAT IT WILL BE AN ACCURATE RECORD?

A: THE FORM IS A GENERAL FORM, AND AS THINGS BECOME RELEVANT, THEY CAN BE FILLED IN. IT GIVES YOU A SPACE TO FILL IN INFORMATION.

Q: WELL, WOULDN'T YOU FEEL MORE CONFIDENT ABOUT THE ACCURACY OF YOUR RECOLLECTION AS TO WHO COLLECTED WHICH ITEM IF YOU AND CRIMINALIST MAZZOLA HAD FILLED THIS IN AT THE TIME YOU DID THE COLLECTION?

MR. GOLDBERG: OBJECTION. IRRELEVANT AS TO HIS CONFIDENCE.

THE COURT: OVERRULED. YOU CAN ANSWER THE QUESTION.

THE WITNESS: IN MY MIND, CRIMINALIST MAZZOLA AND I WERE WORKING AS A TEAM AND IT WAS NOT RELEVANT WHO DID WHAT SPECIFICALLY. WE WERE WORKING SO CLOSE TOGETHER, IT DIDN'T MATTER.

Q: BY MR. SCHECK: MY QUESTION, SIR, IS, WOULDN'T YOU HAVE GREATER CONFIDENCE IN YOUR RECOLLECTION OF WHO COLLECTED WHICH ITEM IF THE FORM HAD BEEN FILLED OUT AT THE TIME OF COLLECTION?

A: YES.

Q: NOW, YOU TESTIFIED ON DIRECT EXAMINATION THAT AS TO ONE OF THESE ITEMS AT BUNDY, NUMBER -- WELL, 52, THAT YOU WERE NOT PRESENT WHEN THAT WAS COLLECTED.

A: THAT'S CORRECT.

Q: AND YOU TESTIFIED, DID YOU NOT, IN AUGUST OF THIS YEAR AT A PROCEEDING. DO YOU REMEMBER THAT?

A: OH, YES.

Q: AND WERE YOU ASKED THESE QUESTIONS AND DID YOU GIVE THESE ANSWERS?

MR. SCHECK: I'M NOW AT PAGE 531, MR. GOLDBERG.

MR. GOLDBERG: MAY I HAVE A MOMENT TO GET THAT?

THE COURT: I THINK YOU MISSPOKE YOURSELF, AUGUST OF THIS YEAR. AUGUST OF LAST YEAR.

MR. SCHECK: DID I SAY AUGUST OF THIS YEAR? IT'S GETTING DIFFICULT, JUDGE. IT WAS AUGUST OF LAST YEAR.

THE COURT: LET'S NOT MAKE IT TRUE.

MR. GOLDBERG: SORRY, COUNSEL.

MR. SCHECK: STARTING AT PAGE 531.

MR. GOLDBERG: WHICH HEARING? THE GRIFFEN HEARING?

MR. SCHECK: YEAH.

"QUESTION: MR. FUNG, YOU WERE THE CRIMINALIST WHO COLLECTED THE ALLEGED DROPS OF BLOOD FOUND AT THE BUNDY CRIME SCENE; IS THAT CORRECT?

"ANSWER: I WAS ONE OF TWO CRIMINALISTS WHO WAS THERE COLLECTING EVIDENCE, YES.

"QUESTION: OKAY. AND DID YOU PERSONALLY COLLECT THE STAINS THAT HAVE BEEN GIVEN THE ITEM NOS. 47, 48, 49, 50 AND 52?

"ANSWER: I WAS PRESENT DURING THE COLLECTION OF THEM AND ASSISTED IN -- ASSISTED IN THOSE -- THE COLLECTION OF THOSE STAINS, YES." WERE YOU ASKED THOSE QUESTIONS, DID YOU GIVE THOSE ANSWERS?

A: YES, I DID.

Q: AND IN THAT ANSWER, YOU INCLUDED ITEM NO. 52?

A: YES, I DID.

Q: AND THEN AT PAGE 536 OF THAT SAME PROCEEDING, YOU WERE ASKED THESE QUESTIONS AND GAVE THESE ANSWERS:

"QUESTION: MR. FUNG, YOU MENTIONED THAT YOU WERE COLLECTING THE BLOOD SPECIMENS WITH A COLLEAGUE NAMED MISS MAZZOLA?

"ANSWER: YES.

"QUESTION: AND WITH RESPECT TO THE ENUMERATED SPECIMENS, NO. 47 THROUGH 52, I BELIEVE YOU SAID THAT SHE DID THE COLLECTION AND YOU OBSERVED HER, AND IF NEED BE, ASSISTED HER?

"ANSWER: TO THE BEST OF MY RECOLLECTION, YES." WERE YOU ASKED THOSE QUESTIONS, DID YOU GIVE THOSE ANSWERS?

A: YES, I DID.

Q: AND IN THE SAME PROCEEDING AGAIN AT PAGE 538:

"QUESTION: FOR EACH AND EVERY SPECIMEN THAT I JUST GAVE YOU AS KEY NUMBERS THERE, DID YOU PERSONALLY OBSERVE HER COLLECT THEM THERE OR WERE THERE THREE TIMES WHERE YOU WERE OFF COLLECTING OR WERE THERE TIMES THAT YOU WERE OFF COLLECTING SOME SPECIMENS AND SHE WAS COLLECTING THINGS AT SOME DISTANCE FROM YOU?

"ANSWER: THERE WERE TIMES THAT -- WHEN I WASN'T WATCHING HER ALL THE TIME, NO.

"QUESTION: AND SO SHE WOULD BE COLLECTING SOME OF THESE BLOOD -- WITHDRAW.

"AS YOU SIT HERE TODAY, DO YOU HAVE A VIVID MEMORY AS TO WHICH OF THE 60 OR SO ITEMS THAT YOU COLLECTED AT BUNDY SHE COLLECTED IN YOUR PRESENCE AS OPPOSED TO THOSE WHICH WERE COLLECTED OUTSIDE YOUR PRESENCE?

"ANSWER: I DO REMEMBER THAT THE BLOODSTAINS LEADING FROM WHERE THE VICTIMS WERE ALONG THE ESCAPE ROUTE AS IT HAS BEEN REFERRED TO IN THE PAST AS, I WAS THERE WITH HER PERSONALLY SUPERVISING HER.

"QUESTION: FOR EACH AND EVERY ONE OF THOSE?

"ANSWER: I BELIEVE SO, YES." WERE YOU ASKED THOSE QUESTIONS, DID YOU GIVE THOSE ANSWERS?

MR. GOLDBERG: MAY I HAVE ONE MOMENT, YOUR HONOR, TO LOOK AT THE TRANSCRIPT BEFORE HE ANSWERS?

(BRIEF PAUSE.)

MR. GOLDBERG: YOUR HONOR, I WOULD JUST ASK THAT HE READ DOWN THROUGH LINE 10 OF THE TRANSCRIPT SO THAT MAY BE COMPLETE ON PAGE 539, COUNSEL.

MR. SCHECK: WELL, I WILL. I DON'T THINK IT'S NECESSARY, BUT I WILL FOR HIS BENEFIT.

"QUESTION: WERE THERE OTHER BLOODSTAINS, HOWEVER, THAT SHE COLLECTED AT THAT SCENE WHICH YOU PERSONALLY DID NOT SUPERVISE?

"ANSWER: YES.

"QUESTION: AND AS YOU SIT HERE TODAY, DO YOU KNOW WHICH ONES THOSE WERE?

"ANSWER: NOT SPECIFICALLY, NO." OKAY?

A: YES.

Q: SO IN OTHER WORDS, AT THIS HEARING, YOU TOOK GREAT PAINS TO INDICATE THAT YOU SAW EVERY ONE OF THOSE BLOOD DROPS AT BUNDY, 47, 48, 49, 50 AND 52, THAT YOU PERSONALLY OBSERVED MISS MAZZOLA SWATCH ALL OF THOSE, RIGHT?

MR. GOLDBERG: WAIT A MINUTE. MISSTATES THE TESTIMONY ABOUT SWATCH.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: DID YOU TAKE GREAT PAINS TO TESTIFY THAT YOU OBSERVED MISS MAZZOLA COLLECT ALL THOSE BLOOD DROPS INCLUDING 52?

A: YES.

Q: ALL RIGHT. AND YOUR TESTIMONY TODAY HERE IS THAT YOU DID NOT SEE HER COLLECT 52?

A: THE COLLECTION PROCESS INVOLVES MANY STEPS. IT INCLUDES THE DOCUMENTATION ALSO AND THE IDENTIFICATION. AND IN THAT RESPECT, I DID -- I WAS PRESENT DURING THOSE PHASES OF THE COLLECTION PROCESS.

Q: YOU WERE ASKED -- YOU WERE ASKED ON DIRECT EXAMINATION DID YOU SEE HER COLLECT 52. YOU SAID NO, RIGHT?

A: YES.

Q: ALL RIGHT. IN THIS PRIOR PROCEEDING, THREE TIMES YOU WERE ASKED WHETHER YOU SAW HER COLLECT 52 AND THREE TIMES YOU SAID YOU SAW IT?

A: WOULD YOU REPEAT THE QUESTION?

Q: THREE TIMES YOU WERE ASKED IF YOU SAW MISS MAZZOLA COLLECT SAMPLE 52 --

MR. GOLDBERG: I OBJECT. THAT MISSTATES THE EVIDENCE.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: WERE YOU ASKED AT THAT SPLIT HEARING ON THREE DIFFERENT OCCASIONS IF YOU OBSERVED HER AND WHETHER SHE DID THE COLLECTION OF ITEM 52?

MR. GOLDBERG: YOUR HONOR, I WOULD OBJECT. THAT MISSTATES THE EVIDENCE.

THE COURT: SUSTAINED. WHY DON'T YOU BREAK IT UP TO EACH INDIVIDUAL OCCASION.

MR. SCHECK: ALL RIGHT.

Q: BY MR. SCHECK: WERE YOU ASKED ON THREE DIFFERENT OCCASIONS JUST THE SAME QUESTIONS I JUST READ TO YOU BEFORE WHETHER OR NOT YOU OBSERVED MISS MAZZOLA COLLECT THE BLOOD DROPS 47 THROUGH 52? YOU WERE ASKED THAT?

MR. GOLDBERG: OBJECTION. THAT STILL MISSTATES THE EVIDENCE.

THE COURT: OVERRULED.

THE WITNESS: IF I COULD SEE THE TRANSCRIPT, BECAUSE I DON'T MEMORIZE EVERYTHING.

Q: BY MR. SCHECK: PLEASE. I TABBED THE PAGES. TAKE A LOOK AT IT. TAKE YOUR TIME.

(BRIEF PAUSE.)

Q: BY MR. SCHECK: DO YOU WANT TO REFER TO THIS NOW?

A: YEAH.

Q: WOULD IT BE FAIR TO SAY AFTER REFRESHING YOUR RECOLLECTION FROM THIS TESTIMONY THAT YOU PREVIOUSLY TESTIFIED THAT YOU OBSERVED MISS MAZZOLA COLLECT ITEM 52?

A: WELL, THAT'S TO THE BEST OF MY RECOLLECTION AT THAT TIME, YES.

Q: ALL RIGHT. AND AT THAT TIME, YOU WERE TESTIFYING THAT YOU SAW HER COLLECT EACH OF THOSE FIVE BLOOD DROPS AT BUNDY, 47 THROUGH 52?

A: YES.

Q: ALL RIGHT. AND NOW, YOU HAVE TALKED IT OVER WITH MISS MAZZOLA; IS THAT RIGHT?

A: YES.

Q: TALKED IT OVER WITH ANYBODY ELSE?

A: SOME EXTENT WITH MR. GOLDBERG.

Q: AND AFTER THOSE DISCUSSIONS, YOU'VE NOW DECIDED THAT YOU DIDN'T OBSERVE HER DO THAT COLLECTION ON ITEM 52?

MR. GOLDBERG: YOUR HONOR, I'LL OBJECT TO THIS. VAGUE AS TO THE WORD "COLLECT."

THE COURT: OVERRULED.

THE WITNESS: IN THE ACTUAL MANIPULATION OF THE SWATCH AND BLOODSTAIN, THAT'S CORRECT.

Q: BY MR. SCHECK: LET'S GET BACK FOR A SECOND TO THE ROLE OF THE CRIMINALIST. NOW, WOULD YOU AGREE THAT IT IS THE ROLE OF A CRIMINALIST TO BE AN INDEPENDENT, UNBIASED FORENSIC SCIENTIST?

A: YES.

Q: AND YOU SHOULD NOT HARBOR A BIAS AS TO THE RESULT OF AN INVESTIGATION ONE WAY OR THE OTHER?

A: THAT'S CORRECT.

Q: AND ACTUALLY, ARE YOU FAMILIAR WITH A GENTLEMAN NAMED BARRY FISHER?

A: YES, I AM.

Q: AND WHO IS HE?

A: HE IS THE LAB DIRECTOR OF THE LOS ANGELES SHERIFF'S CRIMINALISTICS LABORATORY.

Q: AND ARE YOU FAMILIAR WITH HIS BOOK ON TECHNIQUES AND CRIME SCENE INVESTIGATIONS?

A: I HAVE SEEN IT AND REFERRED TO IT ON CERTAIN OCCASIONS.

Q: HAVE YOU CONSIDERED IT IN FORMING YOUR OPINIONS ABOUT THE ROLE OF THE CRIMINALIST IN CRIME SCENE INVESTIGATIONS?

MR. GOLDBERG: YOUR HONOR, I'LL OBJECT. IT'S VAGUE AS TO THE EDITION NUMBER.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: 5TH EDITION.

A: I HAVE NOT SEEN THE 5TH EDITION, NO.

Q: WELL, WOULD YOU AGREE THAT CRIMINALISTS OWE A DUTY TO THE TRUTH?

A: YES.

Q: AND THAT THE SOLE OBLIGATION OF A FORENSIC PRACTITIONER IS TO SERVE THE AIMS OF JUSTICE?

A: YES.

Q: AND WHAT IS IMPORTANT IS THAT A FORENSIC SCIENTIST CONDUCT THE INVESTIGATION IN A THOROUGH COMPETENT FASHION AND SUBMIT FINDINGS AND REPORTS AND THROUGH TESTIMONY IN A FACTUAL AND UNBIASED MANNER?

A: YES.

Q: AND WOULD YOU AGREE THAT IN YOUR ROLE AS A CRIMINALIST, IF YOU SAW DETECTIVES USING UNSOUND PROCEDURES AT A CRIME SCENE IN GATHERING EVIDENCE, YOU WOULD OBJECT?

MR. GOLDBERG: VAGUE AS TO THE TERM "UNSOUND."

THE COURT: OVERRULED.

THE WITNESS: COULD YOU BE A LITTLE MORE SPECIFIC?

Q: BY MR. SCHECK: IF YOU SAW DETECTIVES USING PROCEDURES WHICH YOU FELT WOULD IMPAIR THE INTEGRITY OF EVIDENCE AS THEY WERE COLLECTING IT, WOULD YOU OBJECT?

A: YES.

Q: IF YOU SAW MEMBERS OF THE CORONER'S OFFICE TAKING STEPS IN THE COLLECTION OF EVIDENCE AT A CRIME SCENE WHICH YOU THOUGHT WOULD IMPAIR THE INTEGRITY OF THE EVIDENCE, WOULD YOU OBJECT?

A: I WOULD TELL THE OFFICER IN CHARGE OF THE SCENE WHAT MY -- I WOULD GIVE HIM MY OPINION, YES.

Q: AND IN TESTIFYING AS TO THE FACTS OF ANY PARTICULAR CASE, WOULD YOU AGREE THAT YOU SHOULD NOT JUST GO ALONG WITH THE QUESTIONS THAT ARE ASKED, FOR EXAMPLE, BY A PROSECUTOR IN TERMS OF THE FACTS; YOU SHOULD INDEPENDENTLY RECOLLECT THEM FROM YOUR OWN KNOWLEDGE WHEN YOU TESTIFY?

MR. GOLDBERG: OBJECTION. ARGUMENTATIVE, YOUR HONOR.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: WELL, WOULD YOU AGREE THAT IT'S IMPORTANT THAT A CRIMINALIST NOT LEAVE OUT IMPORTANT FACTS FROM A RECITATION OF WHAT OCCURRED BECAUSE YOU THOUGHT IT WOULD HARM THE PROSECUTION'S CASE?

A: YES.

Q: ALL RIGHT. AND IT WOULD BE INAPPROPRIATE FOR A CRIMINALIST TO IGNORE MISCONDUCT BY ANY LAW ENFORCEMENT OFFICIAL?

MR. GOLDBERG: WELL, THAT'S IRRELEVANT.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: NOW, YOU TESTIFIED YESTERDAY -- YOU WERE ASKED BY MR. GOLDMAN, "IS ANDREA MAZZOLA A TRAINEE," AND YOU ANSWERED, "NO, SHE IS A CRIMINALIST." DO YOU REMEMBER THAT?

A: YES.

Q: NOW, WHEN YOU TESTIFIED PREVIOUSLY IN AUGUST OF THIS YEAR, DIDN'T YOU TELL US THAT ANDREA MAZZOLA ON JUNE 13TH WAS STILL IN TRAINING?

A: I DON'T REMEMBER MY EXACT WORDS.

Q: DID YOU TELL US THAT SHE WAS A STUDENT AND YOU WERE HER TEACHER?

MR. GOLDBERG: WAIT A MINUTE, YOUR HONOR. I'LL ASK FOR A PAGE AND TRANSCRIPT.

THE COURT: YES.

MR. SCHECK: ALL RIGHT. JUST TO MAKE SURE MR. GOLDMAN -- WE'LL START WITH 536 AND WE'LL GO INTO 537.

Q: BY MR. SCHECK: WERE YOU ASKED THESE SERIES OF QUESTIONS AND DID YOU GIVE THESE ANSWERS?

"QUESTION:"

MR. GOLDBERG: MAY I HAVE ONE MOMENT?

THE COURT: CERTAINLY.

MR. SCHECK: STARTING ON LINE 14. READY?

THE COURT: HE'LL TELL US WHEN HE'S READY.

MR. SCHECK: I'M SORRY?

THE COURT: HE'LL TELL US WHEN HE'S READY.

MR. SCHECK: ALL RIGHT. I'M SORRY.

(BRIEF PAUSE.)

MR. GOLDBERG: OKAY.

THE COURT: PROCEED.

Q: BY MR. SCHECK:

"QUESTION: WITH RESPECT TO THE ENUMERATED SPECIMENS, NO. 47 THROUGH 52, I BELIEVE YOU SAID THAT SHE," MISS MAZZOLA, "DID THE COLLECTION AND YOU OBSERVED HER, AND IF NEED BE, ASSISTED HER?

"ANSWER: TO THE BEST OF MY RECOLLECTION, YES.

"QUESTION: OKAY. NOW, IS THAT THE NORMAL PROCEDURE BY THE WAY IN CASES, WHERE ONE CRIMINALIST DOES OR ANOTHER CRIMINAL ACTS AS OBSERVER?

"ANSWER: NO.

"QUESTION: WHY WAS THAT DONE HERE, SIR?

"ANSWER: IT WAS JUST THE LUCK OF THE DRAW IN THIS CASE. MISS MAZZOLA WAS THE ON-CALL CRIMINALIST, THE HOMICIDE ON-CALL CRIMINALIST, AND I WAS ALSO ASSIGNED TO BE HER TRAINING OFFICER THAT WEEKEND.

"QUESTION: NOW, YOU SAID YOU WERE HER TRAINING OFFICER THAT WEEKEND. IS THAT BECAUSE MISS MAZZOLA IS PRETTY NEW TO ALL OF THIS?

"ANSWER: SHE'S STILL A CRIMINALIST I. YES.

"QUESTION: SO DURING THE PERIOD THAT SHE WENT OUT THERE TO COLLECT THE SPECIMENS ON JUNE 13TH, SHE WAS STILL IN TRAINING?

"ANSWER: YES.

"QUESTION: AND YOU WERE THERE IN A SENSE AS A SUPERVISOR OR TEACHER; IS THAT RIGHT?

"ANSWER: YES." WERE YOU ASKED THOSE QUESTIONS, DID YOU GIVE THOSE ANSWERS?

A: YES, I DID.

Q: NOW, MR. FUNG, MISS MAZZOLA ON JUNE 13TH WAS DOING COLLECTIONS AT HER THIRD CRIME SCENE?

MR. GOLDBERG: I'LL OBJECT, NO FOUNDATION.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: DO YOU KNOW HOW MANY CRIME SCENES ANDREA MAZZOLA HAD COLLECTED EVIDENCE AT BEFORE SHE COLLECTED EVIDENCE IN THIS CASE?

A: I DON'T RECALL THE EXACT NUMBER, BUT IT WAS AROUND FIVE. FOUR OR FIVE.

Q: FOUR OR FIVE?

A: BEST OF MY RECOLLECTION.

Q: IN PREPARING FOR YOUR TESTIMONY IN THIS CASE, DID YOU REVIEW THE TRANSCRIPTS OF YOUR TESTIMONY AND MISS MAZZOLA'S TESTIMONY AT THAT HEARING IN AUGUST?

A: I ONLY WENT OVER MINE.

Q: DID YOU DISCUSS WITH MISS MAZZOLA YOUR UPCOMING TESTIMONY IN THIS CASE?

A: ONLY THINGS REGARDING THE CRIME SCENES. NOT TESTIMONY ITSELF.

Q: DID YOU DIS -- DID YOU DISCUSS THIS ISSUE OF HER BEING A TRAINEE WITH ANYONE AT THE SCIENTIFIC INVESTIGATION UNIT?

MR. GOLDBERG: ASSUMES A FACT NOT IN EVIDENCE.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: HAVE YOU HAD ANY DISCUSSION OF THE ISSUE OF MISS MAZZOLA BEING A TRAINEE AS IT RELATES TO THIS CASE?

A: YES.

MR. GOLDBERG: IRRELEVANT.

THE COURT: OVERRULED.

Q: BY MR. SCHECK: NOW, YOU TESTIFIED IN THE GRAND JURY IN THIS CASE; DID YOU NOT, SIR?

A: YES, I DID.

Q: AND BEFORE YOU TESTIFIED IN THE GRAND JURY, DID YOU HAVE DISCUSSIONS WITH ANYBODY ABOUT THE FACT THAT ANDREA MAZZOLA, A PERSON WHO HAD DONE, AS FAR AS YOU KNEW, ONLY FIVE CRIME SCENES YOU THINK -- IS THAT RIGHT?

A: AROUND THERE, YES.

Q: COULD BE LESS?

A: YES.

Q: -- HAD COLLECTED THE EVIDENCE IN THIS CASE BEFORE YOU TESTIFIED IN THE GRAND JURY?

A: I DON'T RECALL DISCUSSING THAT WITH ANYONE.

Q: ALL RIGHT. WELL, LOOKING AT THE EVIDENCE COLLECTED IN THIS CASE, IS IT TRUE MISS MAZZOLA WAS THE ONE WHO SWATCHED ITEM 47? THAT'S THE FIRST BLOOD DROP AT BUNDY, RIGHT?

A: YES.

Q: SHE DID 48?

A: YES.

Q: 49?

A: YES.

Q: 50?

A: YES.

Q: 52?

A: YES.

Q: THAT'S THE ONE YOU'RE NOT TELLING US YOU WERE EVEN THERE TO DO THE SWATCHING?

A: I DON'T RECALL BEING THERE, NO.

Q: AND THOSE WERE CRITICAL ITEMS IN THIS CASE?

MR. GOLDBERG: OBJECTION. ARGUMENTATIVE.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: ISN'T IT TRUE THAT WITH THE EXCEPTION OF 55 AND 56, WHICH WERE BLOOD FROM THE OUTLINE OF FOOTPRINTS, THAT MISS MAZZOLA WAS THE ONE WHO SWATCHED EVERY BLOODSTAIN AT BUNDY?

MR. GOLDBERG: MISSTATES THE EVIDENCE.

MR. SCHECK: I'M ASKING HIM.

MR. GOLDBERG: FOOTPRINT.

THE COURT: OVERRULED.

THE WITNESS: THAT'S NOT ENTIRELY TRUE, NO.

Q: BY MR. SCHECK: YOU SWATCHED 55?

A: 55 WAS -- YES, I DID.

Q: YOU SWATCHED 56?

A: YES, I DID.

Q: YOU DIDN'T SWATCH ANY OTHER STAIN AT BUNDY, DID YOU?

A: YES, I DID.

Q: WHICH ONE DID YOU SWATCH?

A: I DON'T RECALL EXACTLY WHICH ONES I ASSISTED HER WITH, BUT THERE WERE PORTIONS OF STAINS WHERE I ACTUALLY TOOK THE TWEEZERS AND DID THE MANIPULATION MYSELF.

Q: ALL RIGHT. IS -- OTHER THAN 55 AND 56, MISS MAZZOLA WOULD -- PARTICIPATED -- ACTUALLY SWATCHED EVERY OTHER STAIN AT BUNDY?

A: TO THE BEST OF MY RECOLLECTION, YES.

Q: ROCKINGHAM, SHE SWATCHED THE RED STAIN ON THE HANDLE OF THE BRONCO?

A: UNDER MY DIRECT SUPERVISION, YES.

Q: SHE SWATCHED STAIN 4?

A: YES.

Q: 5?

A: YES.

Q: 6?

A: YES.

Q: 7?

A: YES.

Q: 8?

A: YES.

Q: SHE DID ALL OF THEM?

A: YES.

Q: NOW, THE BUNDY GLOVE, GLOVE FOUND AT BUNDY --

A: YES.

Q: -- ANDREA MAZZOLA WAS THE ONE THAT PICKED THAT UP, PUT IT IN THE BROWN PAPER BAG?

A: THE GLOVE AT BUNDY?

Q: YES.

A: YES.

Q: THE WATCH CAP AT BUNDY, ANDREA MAZZOLA WAS THE PERSON WHO PICKED THAT UP AND PUT IT IN THE BAG?

A: YES.

Q: AND INCIDENTALLY, BEFORE YOU TESTIFIED IN THIS CASE, YOU REVIEWED VIDEOTAPES, DIDN'T YOU?

A: FOR THIS CASE?

Q: YES.

A: YES.

Q: THERE WERE A WHOLE TWO SETS OF VIDEOTAPES YOU REVIEWED WITH THE PROSECUTION?

A: YES.

Q: AND THESE WERE VIDEOTAPES FROM THE MEDIA OF YOU AND MISS MAZZOLA, AND PART OF IT WAS YOU AND MISS MAZZOLA AT THE BUNDY SCENE?

A: YES.

Q: ALL RIGHT. NOW --

(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

Q: BY MR. SCHECK: INCIDENTALLY, DID YOU SEE ANY OTHER VIDEOTAPES BESIDES THE COMPILATION OF TWO CASSETTES THAT WERE PROVIDED BY THE DEFENSE TO THE COURT?

A: VIDEOTAPES CONCERNING?

Q: OF ANYTHING. CONCERNING THIS CASE, ANY COLLECTIONS DURING THIS CASE?

A: I HAVEN'T SEEN ANY OTHER COMPILATIONS, NO.

Q: ANY OTHER VIDEOTAPES AT ALL?

A: ON TELEVISION.

Q: NOTHING THAT'S BEEN PROVIDED TO YOU BY ANYBODY AT THE LABORATORY?

A: I CAN'T REMEMBER ANY.

Q: HAVE THE DISTRICT ATTORNEYS SHOWN YOU ANY OTHER VIDEOTAPES IN CONNECTION WITH THIS CASE?

A: YES.

MR. GOLDBERG: WELL, IT'S VAGUE --

THE COURT: HIS ANSWER IS YES.

Q: BY MR. SCHECK: AND WHAT WERE THOSE?

A: IT WAS A TAPE MADE BY A COMPANY CALLED DECISION QUEST.

Q: AND WHAT WAS THAT TAPE OF?

A: THAT WAS A TAPE OF THE BUNDY LOCATION.

Q: AND WERE YOU PRESENT WHEN THAT WAS MADE?

A: NO.

Q: WELL, LET'S TALK ABOUT YOUR TESTIMONY AT THE GRAND JURY.

MR. SCHECK: MR. GOLDBERG, I'M NOW AT THE TESTIMONY OF JUNE 27TH, 1994 AT PAGE 379, LINE 8.

Q: BY MR. SCHECK: DO YOU RECALL BEING ASKED QUESTIONS ABOUT THE BLOOD DROPS AT BUNDY AND WHO SWATCHED THEM?

A: AT BUNDY, YES.

Q: WERE YOU ASKED THESE QUESTIONS AND DID YOU GIVE THESE ANSWERS?

"QUESTION: WERE THERE BLOOD DROPS NEXT TO THOSE SHOEPRINTS?

"ANSWER: YES, THERE WERE.

"QUESTION: DID YOU ATTEMPT TO RETRIEVE AND PRESERVE THE BLOOD DRAWN THAT -- THAT'S BLOOD DROPS

"ANSWER: YES, I DID.

"QUESTION: WHAT DID YOU DO?

"ANSWER: I TRANSFERRED THE BLOOD DROPS ONTO CLOTH SQUARES OR CLOTH SWATCHES. WHAT I DID WAS WET THE CLOTH SWATCHES WITH DISTILLED WATER AND THEN APPLIED THEM TO THE STAIN, THE RED STAINS WHICH WERE LATER DETERMINED TO BE BLOOD, AND THEY WERE TRANSFERRED ON -- IN THAT METHOD." WERE YOU ASKED THOSE QUESTIONS, DID YOU GIVE THOSE ANSWERS?

A: YES, I DID.

Q: AND THAT WASN'T ACCURATE TESTIMONY, WAS IT?

A: IT WAS ACCURATE IN THE SENSE THAT I DID PERFORM SOME OF THOSE FUNCTIONS ON -- BUT I DON'T RECALL EXACTLY WHICH ONES I DID THEM ON.

Q: MR. FUNG, DIDN'T YOU JUST TELL US THAT ANDREA MAZZOLA WAS THE ONE THAT SWATCHED THE BLOOD DROPS, 47, 48, 49, 50 AND 52?

A: SHE WAS THERE AND DID PARTAKE IN THOSE, YES.

Q: SHE WAS THE ONE THAT DID THE SWATCHING, PUT THE DISTILLED WATER ON THE SWATCH, RIGHT?

MR. GOLDBERG: I DON'T THINK THE WITNESS FINISHED HIS ANSWER.

THE COURT: HAD YOU FINISHED THE ANSWER?

THE WITNESS: WELL, I NEED TO EXPLAIN MORE. DURING THE COLLECTION OF THAT TRAIL, I ALSO PARTICIPATED IN THE DIRECT COLLECTION OF THE BLOODSTAINS, MEANING I TOOK HOLD OF THE TWEEZERS AND SWATCHED SOME OF THOSE STAINS.

Q: BY MR. SCHECK: DID YOU TELL THE GRAND JURY THAT ANDREA MAZZOLA, A PERSON WHO WAS IN TRAINING, SWATCHED THOSE BLOOD DROPS, 47, 48, 49, 50 AND 52? DID YOU TELL THEM THAT?

MR. GOLDBERG: I WOULD ASK FOR THE TRANSCRIPT AND PAGE.

THE COURT: NO. THE QUESTION IS, DID HE TELL THE GRAND JURY THAT; YES OR NO.

THE WITNESS: I DON'T RECALL THAT I DID TELL THEM THAT.

Q: BY MR. SCHECK: YOU MEAN YOU DIDN'T TELL THEM THAT, RIGHT?

THE COURT: THAT'S ARGUMENTATIVE.

Q: BY MR. SCHECK: DID YOU OR DID YOU NOT TELL THE GRAND JURY THAT ANDREA MAZZOLA PARTICIPATED IN SWATCHING THOSE BLOOD DROPS AT BUNDY?

A: NO.

Q: THE ANSWER IS NO, YOU DIDN'T TELL THEM, RIGHT?

A: THAT'S CORRECT.

Q: OKAY. LET'S TALK ABOUT THE BLOOD DROPS AT ROCKINGHAM -- THE BLOOD DROPS AT ROCKINGHAM AND THE STAIN ON THE BRONCO, OKAY?

MR. SCHECK: MR. GOLDBERG, I'M AT GRAND JURY TESTIMONY AT PAGE 390 STARTING AT LINE 6.

Q: BY MR. SCHECK: "QUESTION: HOW DID YOU RECOVER THEM?

"ANSWER: I RECOVERED THEM IN THE SAME MANNER DESCRIBED BEFORE WHERE I WOULD WET A CLOTH SWATCH OR SEVERAL CLOTH SWATCHES IF NEEDED, APPLY IT TO THE RED STAIN AND THEN LET THE RED STAIN TRANSFER ONTO THE CLOTH SWATCH." WERE YOU ASKED THOSE QUESTIONS, DID YOU GIVE THOSE ANSWERS?

A: YES.

Q: SO YOU DIDN'T TELL THE GRAND JURY THAT ANDREA MAZZOLA WAS ACTUALLY THE ONE THAT SWATCHED THAT RED STAIN OFF THE HANDLE OF THE BRONCO, RIGHT?

A: AT THE TIME --

Q: DID YOU TELL THEM THAT?

A: NO.

Q: YOU SAID YOU DID IT?

A: YES.

Q: AND YOU SAID THE SAME THING ABOUT STAIN 4?

A: YES.

Q: 5?

A: YES.

Q: 6?

A: I DON'T RECALL, BUT YES.

Q: ALL RIGHT. IN OTHER WORDS, YOU TESTIFIED THAT YOU DID ALL THE SWATCHING AT ROCKINGHAM WHEN IN FACT IT WAS ANDREA MAZZOLA, RIGHT?

A: NO. I TESTIFIED THAT I DID THE COLLECTION.

Q: NO. DID YOU NOT TESTIFY THAT YOU RECOVERED THEM IN THE SAME MANNER YOU DESCRIBED BEFORE WHERE YOU WOULD WET A CLOTH SWATCH OR SEVERAL CLOTH SWATCHES IF NEEDED, APPLY IT TO THE RED STAIN AND THEN LET THE STAIN TRANSFER ONTO THE CLOTH SWATCH, RIGHT? YOU SAID THAT?

A: YES.

Q: YOU WERE TELLING THE GRAND JURY THAT YOU DID IT?

A: YES.

Q: NOW, WITH RESPECT TO THE BUNDY GLOVE, ANDREA MAZZOLA WAS THE ONE THAT PICKED UP THAT BUNDY GLOVE?

A: YES.

MR. SCHECK: MR. HARRIS, COULD WE -- YOUR HONOR, AT THIS POINT, WE WOULD LIKE TO PLAY A VIDEOTAPE. I'LL LAY THE FOUNDATION FOR IT.

Q: BY MR. SCHECK: YOU'VE SEEN A VIDEOTAPE, HAVE YOU NOT, MR. FUNG, OF ANDREA MAZZOLA PICKING UP THE GLOVE AT BUNDY AND THE WATCH CAP?

A: YES.

Q: YOU SAW THAT BEFORE YOU TESTIFIED HERE?

A: YES.

Q: WHEN YOU TESTIFIED AT THE GRAND JURY, YOU WERE TESTIFYING ON JUNE 22ND?

A: YES.

Q: THAT WAS JUST NINE DAYS AFTER THIS HAPPENED?

A: YES.

MR. SCHECK: COULD WE SHOW THE TAPE?

Q: BY MR. SCHECK: WELL, WHILE HE'S SEARCHING FOR THE TAPE, LET ME MOVE ON AND LET'S DISCUSS YOUR TESTIMONY ABOUT THE BUNDY GLOVE AT THE GRAND JURY.

MR. GOLDBERG: PERHAPS I COULD -- I NEED TO KNOW EXACTLY WHAT THEY'RE GOING TO PLAY.

MR. SCHECK: PLEASE --

MR. GOLDBERG: SO I NEED TO SEE IT BEFORE.

THE COURT: ALL RIGHT. MISS FITZPATRICK, CAN WE JUST SEE IT ON COUNSEL'S MONITOR? IS THERE AUDIO ON THIS, MR. HARRIS?

MR. HARRIS: NO, SIR, THERE IS NOT.

MR. SCHECK: WE NEED TO TURN THESE MONITORS BACK.

(AT 4:10 P.M., A VIDEOTAPE WAS PLAYED.)

(AT 4:11 P.M., THE PLAYING OF THE VIDEOTAPE CONCLUDED.)

THE COURT: MR. GOLDBERG?

MR. GOLDBERG: OKAY.

THE COURT: ALL RIGHT.

(AT 4:12, A VIDEOTAPE WAS PLAYED.)

MR. SCHECK: WOULD YOU STOP THAT FOR A SECOND, PLEASE? NOW -- HOWARD, CAN WE STOP THAT? NO, WE CAN'T STOP IT.

Q: BY MR. SCHECK: WHAT WE'VE SEEN SO FAR, THAT'S ANDREA MAZZOLA; IS IT NOT?

A: YES, IT IS.

Q: AND SHE IS PICKING UP FIRST THE BUNDY GLOVE; IS THAT CORRECT? WANT TO SEE THAT AGAIN FROM THE BEGINNING?

A: YES.

Q: OKAY. LET'S START FROM THE BEGINNING.

MR. SCHECK: I AM SORRY. IS THAT THE BEGINNING, HOWARD? MR. HARRIS: YEAH.

Q: BY MR. SCHECK: SORRY. THAT'S THE HAT; IS THAT CORRECT?

A: YES.

Q: AND SHE'S PUTTING IT IN A BAG; IS THAT CORRECT?

A: YES.

Q: ALL RIGHT. THAT'S A CAR PASSING IN FRONT. NOW, DO YOU RECALL, MR. FUNG, IF YOU WERE ANYWHERE AROUND OBSERVING THIS, DOING THIS?

A: I DON'T SPECIFICALLY RECALL IT, NO.

Q: THAT'S HER PICKING UP THE BAG, FOLDING IT, PUTTING THE EVIDENCE TAG BY A TREE I GUESS; IS THAT CORRECT?

A: I DON'T KNOW IF IT WAS BY A TREE.

Q: BY THE EDGE OF THE STEPS?

A: APPEARS SO.

Q: AND NOW SHE'S PICKING UP THE GLOVE?

A: YES.

Q: ALL RIGHT. AND BETWEEN PICKING UP THE KNIT HAT AND PICKING UP THE GLOVE, SHE DID NOT CHANGE HER GLOVES?

A: DO I KNOW IF SHE DID OR NOT?

Q: WELL, DID YOU SEE THAT IN YOUR OBSERVATIONS? THIS IS NOT THE FIRST TIME YOU'VE OBSERVED THIS TAPE, IS IT?

A: NO.

Q: YOU'VE LOOKED AT IT A FEW TIMES, HAVEN'T YOU?

MR. GOLDBERG: YOUR HONOR --

Q: BY MR. SCHECK: LET'S GET RID OF THIS, OKAY?

(AT 4:15 P.M., THE PLAYING OF THE VIDEOTAPE WAS CONCLUDED.)

Q: BY MR. SCHECK: NOW, WHEN YOU TESTIFIED IN FRONT OF THE GRAND JURY NINE DAYS AFTER THAT OCCURRED, WERE YOU ASKED THESE QUESTIONS AND DID YOU GIVE THESE ANSWERS?

MR. GOLDBERG: AGAIN, I NEED IT.

MR. SCHECK: PAGE 377 TO 378 STARTING AT LINE 8.

Q: BY MR. SCHECK: "QUESTION: WAS ONE OF THESE ITEMS A BROWN MAN'S LEATHER GLOVE?

"ANSWER: YES, IT WAS.

"QUESTION: DIRECTING YOUR ATTENTION TO THE SET OF PHOTOGRAPHS, PEOPLE'S 26." AND YOU RECALL THAT, WHEN YOU TESTIFIED IN THE GRAND JURY, WAS PHOTOGRAPHS OF THE BUNDY GLOVE, CORRECT?

A: I DON'T RECALL, BUT --

Q: YOU RECALL BEING SHOWN THAT IN THE GRAND JURY, PHOTOGRAPHS OF THE BUNDY GLOVE?

A: I RECALL PHOTOGRAPHS, BUT I DON'T REMEMBER WHAT NUMBER IT WAS.

Q: YOU DON'T REMEMBER IF IT WAS 26, BUT YOU RECALL DURING YOUR TESTIMONY THAT MISS CLARK POINTED TO PICTURES OF THE BUNDY GLOVE?

A: YES.

Q: OKAY.

"QUESTION: CAN YOU TELL US IF YOU SEE THE GLOVE YOU JUST REFERRED TO?

"ANSWER: IF I MAY TAKE A CLOSER LOOK.

"QUESTION: YES.

"ANSWER: THE GLOVE I'VE REFERRED TO IS SHOWN THERE IN PHOTOGRAPH A. THE PERSON, HE IS POINTING TO IT THERE. IT'S ALSO IN PHOTOGRAPH B AT THE BOTTOM OF THE LEFT-HAND CORNER, THE OTHER IN PHOTOGRAPH C NEXT TO THE PHOTO ID.

"QUESTION: IN PHOTOGRAPHS A, B AND C DO, THEY ACTUALLY DEPICT THE GLOVE AND THE LOCATION AND CONDITION YOU FOUND IT?

"ANSWER: YES.

"QUESTION: WHAT DID YOU DO WITH RESPECT TO THAT GLOVE?

"ANSWER: INITIALLY, I MEASURED TO SEE -- TO LOCATE WHERE IT WAS FOUND, DOCUMENTED THAT LOCATION AND THEN PLACED IT IN A PAPER BAG FOR LATER PROCESSING." WERE YOU ASKED THOSE QUESTIONS, DID YOU GIVE THOSE ANSWERS?

A: YES.

Q: AND THIS TESTIMONY WASN'T ACCURATE, WAS IT?

A: THAT I PERSONALLY DID ALL THAT STUFF? NO.

Q: RIGHT. YOU DID NOT TELL THE GRAND JURY THAT ANDREA MAZZOLA WAS THE ONE THAT PICKED UP THE HAT AND PICKED UP THE GLOVE, RIGHT?

A: THAT'S CORRECT.

Q: NOW, YOU DID NOT TELL THE GRAND JURY WHEN YOU WERE DESCRIBING COLLECTING THAT EVIDENCE ABOUT THE EXISTENCE OF ANDREA MAZZOLA AT ALL, DID YOU?

MR. GOLDBERG: WELL, IT'S IRRELEVANT UNLESS HE WAS ASKED WHO ELSE WAS THERE.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: WELL, YOU WERE ASKED A WHOLE SERIES OF QUESTIONS IN THE GRAND JURY ABOUT HOW EVIDENCE WAS COLLECTED?

A: YES.

Q: AND YOU WERE ASKED SPECIFICALLY ABOUT ITEMS THAT YOU CONSIDERED AT THAT TIME IMPORTANT TO THIS CASE?

MR. GOLDBERG: WELL --

THE COURT: SUSTAINED. IT'S IRRELEVANT WHAT HE THOUGHT WAS IMPORTANT AT THAT TIME. I THINK YOU'VE ALREADY ESTABLISHED WHAT THE TESTIMONY WAS, COUNSEL.

MR. SCHECK: OKAY.

Q: BY MR. SCHECK: AND THAT TESTIMONY YOU GAVE TO THE GRAND JURY WAS UNDER OATH?

A: YES.

Q: NOW, DID YOU DECIDE ON YOUR OWN NOT TO MENTION TO THE GRAND JURY THAT ANDREA MAZZOLA WAS INVOLVED IN COLLECTING THE EVIDENCE IN THIS CASE?

A: I DON'T THINK IT WAS A COGNIZANT DECISION ONE WAY OR THE OTHER. I JUST GAVE THE ANSWERS AS THEY WERE ASKED TO ME.

Q: AND LEFT HER OUT?

A: YES.

Q: AND YOU DIDN'T HAVE ANY DISCUSSIONS WITH ANYONE AT THE LABORATORY, SID, BEFORE YOU TESTIFIED OR DID YOU HAVE ANY DISCUSSION WITH ANYBODY AT THE LABORATORY BEFORE YOU TESTIFIED?

A: CONCERNING WHAT?

Q: CONCERNING YOUR TESTIMONY.

A: BEFORE THE GRAND JURY?

Q: YES?

A: I DON'T RECALL.

Q: DID YOU TALK -- WHO IS MICHELLE KESTLER?

A: SHE'S THE CHIEF FORENSIC CRIMINALIST. SHE'S LAB DIRECTOR OF OUR LABORATORY.

Q: DID YOU DISCUSS YOUR TESTIMONY WITH MICHELLE KESTLER BEFORE YOU WENT TO THE GRAND JURY?

A: I DON'T RECALL DISCUSSING IT WITH HER.

Q: DID YOU DISCUSS YOUR TESTIMONY WITH GREG MATHESON?

A: I DON'T BELIEVE SO.

Q: HE AT THAT TIME WAS THE HEAD OF SEROLOGY?

A: YES.

Q: DID YOU DISCUSS YOUR TESTIMONY IN THE GRAND JURY WITH MISS CLARK?

A: I DON'T BELIEVE SO.

Q: BEFORE YOU TESTIFIED IN THE GRAND JURY, YOU DID NOT DISCUSS YOUR TESTIMONY WITH MISS CLARK?

A: I DON'T RECALL DISCUSSING IT WITH HER, NO.

Q: SO I TAKE IT THEN THAT THERE WAS NO DISCUSSION BETWEEN -- WITHDRAWN. DID YOU HAVE A DISCUSSION WITH ANYONE ELSE IN THE DISTRICT ATTORNEY'S OFFICE BEFORE YOU TESTIFIED IN THE GRAND JURY?

A: I DON'T RECALL DISCUSSING THE CASE WITH ANYBODY, NO.

Q: SO THERE WERE NO DISCUSSIONS WHATSOEVER BEFORE YOU TESTIFIED IN THE GRAND JURY IN THIS CASE ABOUT YOUR TESTIMONY WITH ANYONE FROM THE DISTRICT ATTORNEY'S OFFICE?

A: I DON'T RECALL ANY.

Q: SO IN OTHER WORDS, THE FAILURE TO MENTION THAT ANDREA MAZZOLA WAS INVOLVED IN THE COLLECTION OF EVIDENCE IN THIS CASE WAS SOMETHING THAT YOU DECIDED TO DO ON YOUR OWN?

MR. GOLDBERG: YOUR HONOR, I'M GOING TO OBJECT BECAUSE THERE WAS NO EVIDENCE HE WAS ASKED.

THE COURT: OVERRULED.

THE WITNESS: IT WASN'T A CONSCIOUS DECISION. THAT'S JUST THE WAY I ANSWERED THE QUESTIONS.

Q: BY MR. SCHECK: DID YOU ANSWER THOSE QUESTIONS IN THAT WAY, LEAVING ANDREA MAZZOLA OUT, BECAUSE YOU WERE WORRIED ABOUT THE FACT THAT A TRAINEE HAD BEEN INVOLVED IN COLLECTING IMPORTANT ITEMS OF EVIDENCE IN THIS CASE?

A: NO.

Q: NOT JUST INVOLVED, BUT SHE HAD A MAJOR ROLE, DIDN'T SHE?

A: YES, SHE DID.

Q: NOT ONLY DID SHE COLLECT THE BLOODSTAINS THAT WE'VE TALKED ABOUT AND THE GLOVE AND THE HAT, BUT SHE ALSO DID CRIME SCENE DIAGRAMS?

A: YES.

Q: OF ROCKINGHAM?

A: YES.

Q: AND BUNDY?

A: YES.

Q: NOW, YOU SUBSEQUENTLY TESTIFIED AT A PRELIMINARY HEARING IN THIS CASE; DID YOU NOT?

A: YES, I DID.

Q: AND AT THE PRELIMINARY HEARING, WERE YOU ASKED THESE QUESTIONS AND DID YOU GIVE THESE ANSWERS? AND OUT OF COMPLETENESS, I'M STARTING HIS TESTIMONY OF JULY 7TH ON PAGE 39, LINE 17. TELL ME WHEN YOU'RE READY, MR. GOLDBERG.

(BRIEF PAUSE.)

THE COURT: ALL RIGHT. MR. SCHECK.

MR. SCHECK: CAN I --

THE COURT: PROCEED.

MR. SCHECK: "QUESTION: HOW DO YOU COLLECT BLOODSTAINS FROM A CRIME SCENE?

"ANSWER: GENERALLY STAINS ARE TRANSFERRED ONTO A SWATCH BY FIRST WETTING THE SWATCH WITH DISTILLED WATER, APPLYING IT TO THE STAIN SO THE BLOOD IS ABSORBED ONTO THE SWATCH, AND AT THAT TIME, IT'S PLACED INTO A PLASTIC BAG AND THEN PUT INTO A COIN ENVELOPE WHERE IT IS LABELED WITH THE CORRESPONDING PHOTO ID NUMBER.

"QUESTION: IS IT ALSO YOUR JOB, SIR, TO PACKAGE ALL OF THE EVIDENCE THAT YOU COLLECT AND LABEL IT WITH WHAT IS KNOWN AS A DR NUMBER?

"ANSWER: YES, IT IS.

"QUESTION: AND DID YOU DO SO IN THIS CASE?

"ANSWER: YES, I DID.

"QUESTION: NOW I'M GOING TO DIRECT YOUR ATTENTION TO ITEMS 1 THROUGH 8. THOSE ARE THE BUNDY -- THE STAINS AT ROCKINGHAM, CORRECT?

"ANSWER: 1 THROUGH 8, SOME OF THEM WERE STAINS. YES.

"QUESTION: DID YOU PREPARE A REPORT DESIGNATING WHAT ITEMS NO. 1 THROUGH 8 ARE IN THIS CASE?

"ANSWER: YES, I DID.

"QUESTION: DID YOU COLLECT THEM, SIR?

"ANSWER: I DID, ALONG WITH MY ASSISTANT, CRIMINALIST MAZZOLA.

"QUESTION: IS THAT ANOTHER CRIMINALIST WITH THE LOS ANGELES POLICE DEPARTMENT?

"ANSWER: YES.

"QUESTION: DO YOU USUALLY SEND TWO CRIMINALISTS TO A CRIME SCENE?

"ANSWER: NOT ALWAYS, NO.

"QUESTION: WHAT WAS THIS CRIMINALIST DOING WITH YOU ON THAT PARTICULAR DAY?

"ANSWER: SHE WAS THERE TO LEARN HOW TO PROCESS CRIME SCENES.

"QUESTION: YOU WERE SHOWING HER HOW IT IS DONE?

"ANSWER: YES." WERE YOU ASKED THOSE QUESTIONS AND DID YOU GIVE THOSE ANSWERS?

A: YES.

Q: NOW, WHEN YOU SAID THAT ANDREA MAZZOLA WAS THERE TO LEARN HOW TO PROCESS CRIME SCENES AND YOU WERE SHOWING HER HOW IT WAS DONE, YOU WERE INTENDING TO CONVEY, WERE YOU NOT, THAT YOU DID MOST OF THE WORK AND SHE WAS OBSERVING YOU?

A: I DON'T KNOW IF THAT WAS MY INTENTION WITH THAT STATEMENT.

Q: WELL, THIS WAS A PRELIMINARY HEARING THAT WAS YOU KNEW ON NATIONAL TELEVISION?

A: YES.

Q: AND DID YOU HAVE ANY RELUCTANCE IN TESTIFYING THAT IT WAS ANDREA MAZZOLA THAT SWATCHED PRIMARILY ALL THE ITEMS? YOU SAID YOU SWATCHED ONE OR TWO TIMES, THE BUNDY BLOOD DROPS; IS THAT RIGHT?

A: MAY HAVE BEEN MORE THAN THAT.

Q: SHE DID PRIMARILY ALL THE BUNDY BLOOD DROPS, RIGHT?

A: SHE DID A GOOD PORTION OF THEM, YES.

Q: AND SHE DID THE ROCKINGHAM BLOOD STAINS EXCLUSIVELY?

MR. GOLDBERG: WELL, IT'S VAGUE AS TO WHETHER HE MEANS SWATCH OR WHAT.

Q: BY MR. SCHECK: SHE SWATCHED THE ROCKINGHAM BLOODSTAINS EXCLUSIVELY?

THE COURT: OVERRULED.

THE WITNESS: I WOULDN'T SAY EXCLUSIVELY.

Q: BY MR. SCHECK: WELL, YOU DIDN'T SWATCH THE BLOOD STAINS AT ROCKINGHAM, DID YOU?

A: THERE MAY HAVE BEEN TIMES WHERE I DID TAKE AND SHOW HER TECHNIQUES THAT I USED.

Q: DO YOU REMEMBER THAT NOW AS YOU SIT HERE?

A: I MAY HAVE.

Q: WELL, DID YOU OR DIDN'T YOU?

A: TO THE BEST REC -- I DON'T RECALL SPECIFICALLY WHICH ONES, BUT I DO RECALL HAVING MANIPULATED OR NOT MANIPULATED, BUT TAKEN THE TWEEZERS AND USED THEM AT ROCKINGHAM.

Q: YOU DO?

A: YES. BUT SHE DID THE MOST.

Q: SHE DID MOST OF IT, RIGHT?

A: SHE DID MOST OF IT, YES.

Q: BUT WHEN YOU WERE TESTIFYING AT THE PRELIMINARY HEARING, YOU WERE SAYING THAT YOU WERE SHOWING HER HOW IT WAS DONE, AND WEREN'T YOU TRYING TO CONVEY THE IMPRESSION THAT YOU DID IT AND SHE WAS JUST THERE AS AN OBSERVER?

MR. GOLDBERG: I OBJECT. THIS MISSTATES HIS TESTIMONY.

THE COURT: SUSTAINED.

Q: BY MR. SCHECK: YOU WERE ASKED AT THE PRELIMINARY HEARING IN THESE QUESTIONS AND ANSWERS THAT I READ TO YOU:

"DO YOU USUALLY SEND TWO CRIMINALISTS TO A CRIME SCENE," AND YOUR ANSWER WAS,

"NOT ALWAYS, NO." DO YOU RECALL THAT?

A: YES.

Q: NOW, ISN'T IT -- WOULDN'T IT BE -- IS IT THE POLICY OF THE LAPD SCIENTIFIC INVESTIGATION UNIT TO SEND AT LEAST TWO CRIMINALISTS TO A DOUBLE HOMICIDE SUCH AS THIS CASE?

A: IT WOULDN'T -- AT THAT TIME?

Q: YEAH.

A: AT THAT TIME, THERE WAS NO HARD AND FAST RULE TO SEND TWO CRIMINALISTS TO A DOUBLE, NO.

Q: IT'S YOUR TESTIMONY THAT ON JUNE 13TH, AS FAR AS YOU WERE CONCERNED, IT WOULD NOT BE THE POLICY OF THE SCIENTIFIC INVESTIGATIONS UNIT OF THE LAPD TO SEND TWO CRIMINALISTS TO A DOUBLE HOMICIDE?

A: THAT'S NOT THE POLICY AT THAT TIME, NO.

Q: I AM SORRY. WELL, YOU'RE AWARE -- I JUST HAVE A FEW MINUTES BEFORE THE BREAK. YOU'RE AWARE THAT THERE IS A POLICY ABOUT NOTIFYING SUPERVISORS IN CERTAIN CASES?

A: YES.

Q: ALL RIGHT. AND IS THIS IN THAT MANUAL DO YOU KNOW, THE MANUAL THAT YOU ARE NOT SO SURE YOU'RE FAMILIAR WITH?

A: I HAVE NOT REVIEWED THAT MANUAL THAT YOU'RE REFERRING TO.

Q: WELL, HOW DO YOU KNOW ABOUT THIS POLICY?

A: THIS IS A POLICY THAT IS -- WAS GIVEN TO THE CRIMINALISTS VERBALLY.

Q: OKAY. SO YOU GOT THIS VERBALLY. YOU NEVER SAW A PIECE OF PAPER ABOUT THIS POLICY?

A: WELL, WHAT POLICY ARE YOU REFERRING TO?

Q: WELL, DO YOU KNOW OF A POLICY THAT SAYS THAT SUPERVISORS MUST BE NOTIFIED IMMEDIATELY WHEN A CASE, NUMBER ONE, INVOLVES AN INDIVIDUAL OR A GROUP OF NOTORIETY?

A: YES.

Q: AND THAT THE SECOND FACTOR IN THIS POLICY IS THAT THERE MIGHT BE A SIGNIFICANT NUMBER OF PRESS AT THE SCENE?

MR. GOLDBERG: YOUR HONOR, THIS LINE OF QUESTIONING IS IRRELEVANT.

THE COURT: OVERRULED.

THE WITNESS: THAT IS ONE OF THE FAC -- FACTORS IN DETERMINING WHETHER TO CALL A SUPERVISOR, YES.

Q: BY MR. SCHECK: RIGHT. AND THE REASON THE PRESS IS IMPORTANT, WOULD YOU NOT AGREE, THAT WHEN THE PRESS GETS TO A SCENE, THAT MAKES IT DIFFICULT SOMETIMES FOR A CRIMINALIST TO COLLECT EVIDENCE?

A: NOT GENERALLY, NO.

Q: WHEN THE PRESS ARRIVES AT A SCENE, SOMETIMES THAT DRAWS A CROWD?

A: YES.

Q: IT MAY BE DIFFICULT TO KEEP PEOPLE AWAY FROM THE CRIME SCENE, GETTING INTO IT?

A: IT'S A POSSIBILITY.

Q: AND THE POLICY ABOUT IMMEDIATE NOTIFICATION OF SUPERVISORS INCLUDES ANY CASE THAT MIGHT BE CONSIDERED UNUSUAL?

A: YES.

Q: AND INVOLVES TWO OR MORE THAN TWO MURDERS, CORRECT. MORE THAN TWO VICTIMS?

A: YES.

Q: ALL RIGHT. SO OUT OF THE FOUR FACTORS, WOULDN'T YOU AGREE THAT THIS CASE CERTAINLY FIT INTO AT LEAST THREE?

A: OF NOTIFYING A SUPERVISOR?

Q: YES.

A: YES.

Q: AND THE REASON YOU -- CASES ARE PICKED OUT TO NOTIFY SUPERVISORS IS THAT THESE ARE THE KINDS OF CASES THAT WOULD INVOLVE ADDITIONAL SUPPORT AND EXTRA ATTENTION?

A: POSSIBLY.

Q: AND YOU KNEW RIGHT AWAY THAT THIS WAS THAT KIND OF CASE, RIGHT?

A: I KNEW THIS WAS GOING TO BE A HIGH-PROFILE CASE.

Q: AND WHEN YOU SERVED IN THE GRAND JURY, YOU KNEW THAT THIS KIND OF CASE FROM THE MOMENT YOU GOT IT ON JUNE 13TH WOULD BE THAT KIND OF CASE?

A: HIGH-PROFILE CASE?

Q: WELL, HIGH PROFILE, ONE THAT WOULD INVOLVE PRESS, ONE THAT WAS UNUSUAL?

A: I DON'T KNOW IF IT'S UNUSUAL, BUT IT IS HIGH PROFILE.

Q: ONE THAT WOULD INVOLVE IMMEDIATE NOTIFICATION OF SUPERVISORS?

A: YES.

Q: ONE THAT WOULD LIKELY CALL FOR AT LEAST TWO CRIMINALISTS?

A: I DON'T -- I CAN'T DETERMINE WHAT A SUPERVISOR WOULD SAY IN THAT INSTANT.

MR. SCHECK: WELL, I THINK THIS IS AN APPROPRIATE PLACE TO STOP.

THE COURT: ALL RIGHT. ALL RIGHT. LADIES AND GENTLEMEN, WE ARE GOING TO TAKE OUR RECESS AS FAR AS THE JURY IS CONCERNED NOW UNTIL TOMORROW MORNING. PLEASE REMEMBER ALL OF MY ADMONITIONS TO YOU; DON'T DISCUSS THE CASE AMONGST YOURSELVES, DON'T FORM ANY OPINIONS ABOUT THE CASE, DON'T FIGHT OVER THE T.V.; DON'T ALLOW ANYBODY TO COMMUNICATE WITH YOU WITH REGARD TO THE CASE; DON'T CONDUCT ANY DELIBERATIONS UNTIL THE MATTER HAS BEEN SUBMITTED TO YOU. BE KIND TO EACH OTHER. ALL RIGHT? I'LL SEE YOU BACK TOMORROW MORNING, 9:00 O'CLOCK. ALL RIGHT. MR. FUNG, YOU MAY STEP DOWN. YOU ARE ORDERED TO RETURN 9:00 O'CLOCK. AND WE'LL TAKE A BRIEF RECESS. I WOULD LIKE TO CHAT WITH THE LAWYERS.

(AT 4:35 P.M., AN ADJOURNMENT WAS TAKEN UNTIL, WEDNESDAY, APRIL 5, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES DEPARTMENT NO. 103 HON. LANCE A. ITO, JUDGE

THE PEOPLE OF THE STATE OF CALIFORNIA, )
)
PLAINTIFF, )
)
) VS.
) NO. BA097211
)
ORENTHAL JAMES SIMPSON, )
)
)
DEFENDANT. )

REPORTER'S TRANSCRIPT OF PROCEEDINGS

TUESDAY, APRIL 4, 1995
VOLUME 120

PAGES 21587 THROUGH 21821, INCLUSIVE

APPEARANCES: (SEE PAGE 2)

JANET M. MOXHAM, CSR #4588
CHRISTINE M. OLSON, CSR #2378
OFFICIAL REPORTERS

APPEARANCES:

FOR THE PEOPLE: GIL GARCETTI, DISTRICT ATTORNEY
BY: MARCIA R. CLARK, WILLIAM W.
HODGMAN, CHRISTOPHER A. DARDEN,
CHERI A. LEWIS, ROCKNE P. HARMON,
GEORGE W. CLARKE, SCOTT M. GORDON
LYDIA C. BODIN, HANK M. GOLDBERG,
ALAN YOCHELSON AND DARRELL S.
MAVIS, BRIAN R. KELBERG, AND
KENNETH E. LYNCH, DEPUTIES
18-000 CRIMINAL COURTS BUILDING
210 WEST TEMPLE STREET
LOS ANGELES, CALIFORNIA 90012

FOR THE DEFENDANT: ROBERT L. SHAPIRO, ESQUIRE
SARA L. CAPLAN, ESQUIRE
2121 AVENUE OF THE STARS
19TH FLOOR
LOS ANGELES, CALIFORNIA 90067

JOHNNIE L. COCHRAN, JR., ESQUIRE
BY: CARL E. DOUGLAS, ESQUIRE
SHAWN SNIDER CHAPMAN, ESQUIRE
4929 WILSHIRE BOULEVARD
SUITE 1010
LOS ANGELES, CALIFORNIA 90010

GERALD F. UELMEN, ESQUIRE
ROBERT KARDASHIAN, ESQUIRE
ALAN DERSHOWITZ, ESQUIRE
F. LEE BAILEY, ESQUIRE
BARRY SCHECK, ESQUIRE
PETER NEUFELD, ESQUIRE
ROBERT D. BLASIER, ESQUIRE
WILLIAM C. THOMPSON, ESQUIRE

I N D E X

INDEX FOR VOLUME 120 PAGES 21587 - 21821

-----------------------------------------------------

DAY DATE SESSION PAGE VOL.

TUESDAY APRIL 4, 1995 A.M. 21587 120
P.M. 21701 120
-----------------------------------------------------

PROCEEDINGS

MOTION FOR SANTIONS (RESUMED) 21587 120

LEGEND:

MS. CLARK - MC
MR. HODGMAN - H
MR. DARDEN D
MS. LEWIS - L
MS. KAHN - K
MR. GOLDBERG - GB
MR. GORDON - G
MR. SHAPIRO - S
MR. COCHRAN - C
MR. DOUGLAS - CD
MR. BAILEY - B
MS. CHAPMAN - SC
MR. UELMEN - U
MR. SCHECK - BS
MR. NEUFELD - N
-----------------------------------------------------

CHRONOLOGICAL INDEX OF WITNESSES

PEOPLE'S
WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.

FUNG, DENNIS 120
ARTHUR

(RESUMED) 21667GB

(RESUMED) 21703GB 21757BS

-----------------------------------------------------

ALPHABETICAL INDEX OF WITNESSES

WITNESSES DIRECT CROSS REDIRECT RECROSS VOL.

FUNG, DENNIS 120
ARTHUR

(RESUMED) 21667GB

(RESUMED) 21703GB 21757BS

EXHIBITS

PEOPLE'S FOR IN EXHIBIT
IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.

169 - POSTERBOARD 21671 120
ENTITLED "ROCKINGHAM INTERIOR BIOLOGICAL
EVIDENCE"

170 - POSTERBOARD 21674 120
ENTITLED "EVIDENCE DRYING DEMONSTRATION"
WITH 4 PHOTOGRAPHS

171 - POSTERBOARD 21682 120
ENTITLED "EVIDENCE PACKAGING DEMONSTRATION"
WITH 5 PHOTOGRAPHS

172 - POSTERBOARD 21694 120
ENTITLED "BROCO EVIDENCE" WITH 10 PHOTOGRAPHS

164-C - BROWN PAPER BAG 21704 120
CONTAINING A CAP

164-A - BROWN PAPER BAG 21705 120
CONTAINING A GLOVE

164-B - BROWN PAPER BAG 21705 120
CONTAINING A BLUE BAG

173 - 1-PAGE DOCUMENT 21708 120
LAB NOTE REFERRING TO ITEMS 17, 18 AND 19

174 - 1-PAGE DOCUMENT 21710 120
LAB NOTE REFERRING TO ITEMS 17, 18 AND 19

175 - DOCUMENT 21713 120
PHOTOCOPY OF PROPERTY REPORT FOR ITEMS 12,
13, 14, 15 AND 16 DATED JUNE 14, 1994

176 - DOCUMENT 21713 120
PHOTOCOPY OF PROPERTY REPORT FOR ITEMS 18
AND 19 DATED JUNE 15, 1994

177 - COLLECTION OF 21738 120
POSTERBOARDS ENTITLED "LAPD EVIDENCE
DISPOSITION" IDENTIFIED AS THROUGH E

177-A - POSTERBOARD 21738 120
REFERRING TO ITEMS 6, 7, 9, 12, 13, 14,
17, O.J. SIMPSON BLOOD EXEMPLAR 19, 20 AND 24

EXHIBITS

(CONTINUED)

PEOPLE'S FOR IN EXHIBIT
IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.

177-B - POSTERBOARD 21743 120
REFERRING TO ITEMS 25, 26, 29, 30, 31, 33, 34,

177-C - POSTERBOARD 21744 120
REFERRING TO ITEMS 45, 47, 48, 49, 50, 51, 52,
54, 55, 56 AND 57

177-D - POSTERBOARD 21745 120
REFERRING TO ITEMS 59, NICOLE BROWN SIMPSON
BLOOD EXEMPLAR, 60, RONALD GOLDMAN BLOOD
EXEMPLAR, 72, 78 SHOES, 78 SWATACHES, 79, 81,
81-A THRU H AND 82

177-E - POSTERBOARD 21746 120
REFERRING TO ITEMS 84, 85, 86, 115, 116, 117,
293, 303, 304 AND 305

178 - 7 PAGES OF NOTES 21754 120
REFERRING TO ITEMS 59, NICOLE BROWN SIMPSON
BLOOD EXEMPLAR, 60, RONALD GOLDMAN BLOOD
FOR IN EXHIBIT
IDENTIFICATION EVIDENCE
PAGE VOL. PAGE VOL.

1069 - 2-PAGE DOCUMENT 21775 120
RELATING TO EVIDENCE COLLECTION (ORIGINAL)

1070 - 2-PAGE DOCUMENT 21776 120
RELATING TO EVIDENCE COLLECTION (PHOTOCOPY)

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