Department no. 103 Hon. Lance A. Ito, Judge

APPEARANCES: (Appearances as heretofore noted, Mr. Thompson also being present representing the Defendant; Ms. Kahn also being present representing the People.)

(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. Mr. Simpson is again present before the Court with counsel. I see Mr. Neufeld, Mr. Scheck, Mr. Bailey, Mr. Thompson. I am not acquainted with this gentleman.

MR. THOMPSON: This is Dr. William Shields, your Honor.

THE COURT: Good morning, doctor. The People are represented by Mr. Clarke and Ms. Kahn. The matter is here for a 402 hearing this morning regarding the interpretation of mixtures. Miss Kahn.

MS. KAHN: Your Honor, I believe Mr. Clarke is going to address the Court on this issue.

THE COURT: Mr. Clarke.

MR. CLARKE: I think just as prefatory comment, I think what we need to look at is the situation we are in at the moment with regard to this particular type of evidence. In particular, if the Court will recall, with respect to the original witnesses in this case, in particular Dr. Cotton and Mr. Sims from the Department of Justice, it was not either their intention or our intention of providing to the Court, or providing to the Court in this case, frequency numbers about mixtures, and that was argued before the Court and ultimately resolved by this Court with the Court's finding that indeed frequencies as to these mixtures were to be presented. And we have operated accordingly since that time. The Court may recall a little bit about the history of that, and in fact there was a good deal of scrambling, for lack of a better term, with the original witnesses in particular, Dr. Cotton, to be able to obtain frequency numbers to describe these mixtures in some fashion. It was determined in the course of that work, as far as mixtures were concerned, that in fact Dr. Weir would describe mixtures and attach frequencies to them. At the point we are at now, it is our intention to present, through Dr. Weir, frequencies with regard to these mixtures that are the product, or actually the result would be a better word, of summing individual possibilities of genotypes in both two-person mixtures, in other words, assuming that a mixture was from two different individuals, as well as three-person mixtures, assuming that a mixture was the product of three different contributions from three different persons. With respect to that procedure, Dr. Weir is perfectly prepared to describe that to the Court and in fact we think we can do that through Dr. Weir in a fairly very understandable fashion. I think we need to reexamine, however where, we are in terms of this hearing. This hearing involves again, if it is granted by the Court, a determination by this Court apparently as to what method of adding frequencies using the summing technique is appropriate.

And we don't feel--in fact, we feel very strongly that is not subject to a determination by this Court in terms of a 402 foundational hearing because it is apparent that Dr. Weir, and as far as our position is concerned, that his method of determining these mixture frequencies is the most appropriate fashion in terms of the summing technique. And it is apparent the Defense feels that a different technique is in fact the appropriate one. That I think is clearly the type of matter that has to be resolved by the trier of fact, not resolved by the Court in terms of a 402 hearing as to which is the more appropriate method to proceed by, assuming that it is in fact a summing technique which the Court will hear clear evidence that it involves adding up different genotype frequencies. I think that is particularly important when the Court recalls that this Defendant completely waived any admissibility about DNA typing evidence. That we felt, as we broached to the Court many weeks ago at this point, certainly cleared the way for the type of testimony, and in fact not even assigning frequencies to mixtures in this particular hearing, but the Court ruled otherwise. So here we are today, the Defense still has not or still has not at least attempted to reverse their waiver of this evidentiary hearing, this Frye hearing in terms of admissibility that we know applies to population frequency data as well, and in this hearing apparently seeks to convince this Court that our expert's method of adding genotypes is not a correct one. That again I think, as the Court should realize, is clearly a matter of weight for the jury; not a matter of admissibility. In many respects, it is not different to this Defendant during testimony about DNA typing itself--itself, objecting to the fact that a procedure wasn't performed properly; therefore, the Court should have an evidentiary hearing. We know that wasn't done in this case and I feel confident the Court would have quickly denied the Defense any opportunity to contest that matter in terms of a foundational hearing because of the waiver that had already occurred. This is not different with regard to these population frequency data. So again it is our position the Court has no need whatsoever for an evidentiary hearing. If the Court would like an explanation from Dr. Weir about how he summed these different genotype possibilities, that can be done, certainly, and perhaps may satisfy the Court that in fact there is no need for a hearing whatsoever.

But again, it is our position that we are ready to proceed in front of the jury, when the jury is available, with Dr. Weir's testimony about adding genotypes together in terms of these mixture frequencies and we feel that the Court can conduct that hearing--I'm sorry--can allow that testimony to be presented with no hearing necessary whatsoever.

THE COURT: All right. Thank you. Mr. Thompson. A hearing to determine whether we are going to have a hearing.

MR. THOMPSON: All right. Well, I think Mr. Clarke has correctly characterized what the Prosecution is doing is scrambling. At this point it is not entirely clear to us what they intend to present. They early on presented a report--I guess earlier on, in the middle--let me trace the--let me trace the history of what has happened here. We got a report from Dr. Weir in May 11--on May 11th that was presenting likelihood ratios, to characterize these mixtures, and we registered our objections. On May 31st there was another draft report also using likelihood ratios and saying likelihood ratios are essential to characterize mixtures. On June 20th, that is Tuesday, we got yet another report saying likelihood ratios are essential. We were all geared up to challenge likelihood ratios when we learned Tuesday that they were presenting frequencies instead and we got a report on their frequency method. Well, it has been drifting in. We got some of it yesterday morning, some of it was faxed to the hotel last night and corrections were just given to us this morning, so we are just getting this revision that presents what they are calling frequencies. In fact, it appears to me the frequency--what they are calling frequencies are in fact the same numbers that they were calling likelihood ratios earlier, they are just recharacterizing them. Now, as far as whether a 402 hearing is necessary, I think one is necessary to allow you to rule on the foundational objections that we are raising to whatever it is that they are going to present, without which we are still somewhat confused. I think it is clear that the presentation of likelihood ratios is unprecedented. Presentation of frequencies in connection with mixtures or the proper approach to computing frequencies in connection with mixtures is again an issue that has not been--that has not been discussed in the appellate case law and an issue about which there appears to be some scientific controversy. It is our position that if they do present statistics in connection with mixtures, which they are required to do under this Court's ruling and we believe under the laws of this state and particularly under People versus Barney, that they must computer those frequencies according to an accepted method. And we are taking the position that the accepted method is the National Research Council's method which we have discussed with you earlier. I think it is quite clear, from what we've seen from their reports, that they are not computing these mixture statistics according to the National Research Council's method; they are using a different method, and they are using a method to which we have a number of substantive objections that go beyond the general acceptance and following of correct procedures. In particular, we take the position that the way in which they are calculating these frequencies is argumentative, that it incorporates assumptions that are consistent with Prosecution evidence in this case, that it invades the province of the jury by presenting argumentative conclusions in the guise of expert testimony. We also contend that this evidence is objectionable because it fails to take into account all important variables that should affect the conclusions that they purport to be drawing from it and therefore it is objectionable under People versus Chela, a case we cited to you in our notice of objection filed earlier. We will argue that it is extremely prejudicial and therefore excludable under 352 as well. In order to rule on all of these objections, these latter objections having nothing to do with Kelly and having nothing at all to do with the waiver that occurred with respect to DNA evidence, per se, you are going to need to hear some testimony. We are going to need to cross-examine Dr. Weir to find out what exactly it is that he is purporting to present. And then we would like to present expert testimony from Dr. Shields who will tell you that what--what Dr. Weir is doing appears not to be the National Research Council method and that it has problems, which he can explain. So all of these--these factual issues need to be put on the table in order for you to rule on the--on the objections. As far as waiver goes, I mean, when we withdrew our objections to the admissibility of--of DNA evidence in January, no one was contemplating likelihood ratios and the of ever mixture statistics hadn't been raised at that point at all. And certainly the fact that we withdrew our objections to DNA evidence at that point does hot give the Prosecution license to present to the jury any kind of--any kind of scientific testimony they choose, regardless of its scientific validity and regardless of whether it is prejudicial or misleading or argumentative. All of these objections are maintained. Those are trial objections and foundational objections which in your rulings you recognized are preserved. Therefore a 402 hearing is necessary and we would like to proceed with it.

THE COURT: All right. Any brief response, Mr. Clarke?

MR. CLARKE: Yes. Thank you, your Honor. I think the Court has already been made aware that it is not our intent to use likelihood ratios and I think everyone who has been involved in this over the last several days is aware of that fact and in fact the particular summing type of frequencies for these mixtures that is going to be sought to be offered in front of this jury is a summing technique, it is a summing technique that is described by the NRC report. Who while describing it in somewhat vague fashion, clearly in our view covers the exact technique used by Dr. Weir in this particular case. But most importantly, I think Mr. Thompson has brought up the very words that show why this hearing shouldn't be conducted and that is general acceptance. He specifically mentioned an allegation that the method used here is not generally accepted, and those are exactly the terms that were waived or the type of foundational showing that was waived by this Defendant many months ago. These are factual issues, as he just described them, which are the exact same types of issues that are to be decided by juries and not by courts in terms of admissibility. There is at this point, based on the offer or at least the comment by counsel, absolutely no need for a 402 hearing. If the Court would like to ensure that the technique used to be testified to by Dr. Weir involves a summing technique, we would be happy to have him describe that and it wouldn't take very long. But I think in terms of an admissibility hearing, this Defendant again gave up that right many, many months ago.

THE COURT: All right. Thank you, counsel. Counsel, I think that the unfortunate situation we have here is that this is a relatively novel situation. There are no reported cases that deal specifically with mixtures in the forensic setting. Although there is--there are reported cases in the analogous paternity setting where obviously by definition you have mixtures, there is--there does appear to be some controversy in the area that I have read about in my preparation for today's hearing. And the thing that concerns me most is whether or not this is going to be unduly confusing to the jury, so on the bases of both evidence code section 402 and 352, I'm going to require the Prosecution to present to the Court a foundational showing that this should be presented to the jury.

MR. CLARKE: Very well.

THE COURT: All right. So the burden is on the People. Mr. Clarke.

MR. CLARKE: Yes. Dr. Bruce Weir, please.

THE COURT: All right. Mrs. Robertson, witness.

Bruce Weir, (402) called as a witness by the People, pursuant to Evidence Code section 402, was sworn and testified as follows:

THE CLERK: Please raise your right hand. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God.

DR. WEIR: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

DR. WEIR: Bruce Weir, B-R-U-C-E W-E-I-R.

THE COURT: Mr. Clarke.

MR. CLARKE: Thank you, your Honor.

DIRECT EXAMINATION BY MR. CLARKE

MR. CLARKE: Dr. Weir, good morning.

DR. WEIR: Good morning, Mr. Clarke.

MR. CLARKE: Could you describe for the Court, please, the position that you hold currently.

DR. WEIR: I'm currently a professor of statistics and genetics at a North Carolina State University.

MR. CLARKE: Located in what city?

DR. WEIR: In Raleigh, North Carolina.

MR. CLARKE: How long have you been at that university?

DR. WEIR: I first went there as a graduate student in 1965. I've been on the faculty since 1976.

MR. CLARKE: Your Honor, I have what can be described as I believe a CV of Dr. Weir that I would ask be marked as--does the Court wish us to continue with the exhibit numbers?

THE COURT: Yes. This would be People's 40--

THE CLERK: 7.

THE COURT: 407.

MR. CLARKE: A copy of which has been previously provided to the Defense.

(Peo's 407 for ID = CV of Dr. Weir)

MR. CLARKE: Dr. Weir, showing you what will be marked as an exhibit shortly, can you describe what that is?

DR. WEIR: Yes. This is my CV.

MR. CLARKE: And I'm sorry, your Honor, I didn't catch the exhibit number.

THE COURT: 407.

MR. CLARKE: Thank you.

MR. CLARKE: All right. Dr. Weir, do you have a copy of your CV with you also?

DR. WEIR: No.

MR. CLARKE: All right. Could you tell us then and describe for the Court, if you would initially, your educational background?

DR. WEIR: I have a bachelor's degree in mathematics from the University of Canterbury in New Zealand, a Ph.D. in statistics with a minor in genetics from North Carolina State University and I spent time as a postgraduate research geneticist at the University of California at Davis.

MR. CLARKE: In particular you described your Ph.D. being in the area of statistics. What did that encompass, if you can briefly summarize that?

DR. WEIR: Well, it was fairly detailed examination of the methods in statistics, both the theory of statistics, the mathematical theory, and the appropriate means of analyzing data.

MR. CLARKE: All right. With the Court's permission it would be my request that the Court actually have the exhibit before the Court and then I have a copy that the witness can utilize as well.

THE COURT: Fine.

MR. CLARKE: All right. Dr. Weir, could you hand that to the Court.

THE COURT: Thank you.

DR. WEIR: (Witness complies.)

MR. CLARKE: As far as your employment history, could you describe that, please.

DR. WEIR: When I completed my postdoctoral period I returned to New Zealand as a senior lecturer in mathematics at Massey University. I remained there for almost six years and then returned to this country in 1976 as an associate professor of statistics and genetics and I have remained in that department, the department of statistics.

MR. CLARKE: During the time--and I believe you said that was a six-year period at the--in the department of mathematics at Massey University in New Zealand?

DR. WEIR: Yes, sir.

MR. CLARKE: What did you do during that time?

DR. WEIR: I did then what I do now. I teach statistics and statistical genetics. I conduct research in the appropriate ways of analyzing genetic data.

MR. CLARKE: What year did you start at North Carolina State University?

DR. WEIR: On the faculty it was in 1976.

MR. CLARKE: So almost twenty years at this point?

DR. WEIR: That's right.

MR. CLARKE: What have you been doing during that time period at the university?

DR. WEIR: I've been working very hard to develop statistical methods to analyze genetic data.

MR. CLARKE: In that position do you teach?

DR. WEIR: I do teach. I have taught general statistics courses. In recent years I have taught courses based on my book on genetic data analysis.

MR. CLARKE: Now, you have used this term "Genetic data" and you have also used the term "Statistics" as well?

DR. WEIR: Yes.

MR. CLARKE: How do those two relate to one another, if they do?

DR. WEIR: Well, we use statistical methods--statistics, as you know, can be applied to many different fields. My specialty is in applying statistical methods to data concerned with genetic entities. What we will be talking about today is the specific DNA markers used in forensic science. Those are of course just one of many types of possible genetic data.

MR. CLARKE: On your CV, and in particular on page 1, there is also a category listed as "Honors"; is that right?

DR. WEIR: That's true.

MR. CLARKE: Of those Honors that are listed, are there any of particular note?

DR. WEIR: Well, I think I'm most proud of two. I had a Guggenheim fellowship in 1983 of which I am proud, and then in 1992 I was given a named professorship at my university.

MR. CLARKE: Now, the Guggenheim fellowship, did that involve your conducting any research or other activities at another university other than your own?

DR. WEIR: Well, the fellowship enabled--it enabled me to take a year sabbatical and I went to the University of Edinburgh for a year and essentially brought myself up to speed on the current DNA methodologies.

MR. CLARKE: That was in what year?

DR. WEIR: `83, `84.

MR. CLARKE: While you were at the University of Edinburgh did your activity--and you have described getting yourself up to speed; is that right?

DR. WEIR: That's true.

MR. CLARKE: In what way, if you can briefly summarize that?

DR. WEIR: Well, prior to that period, although I should stress that my statistical methods have not changed since--have not changed direction fundamentally, but prior to 1983 I was concerned mainly with genetic data on protein polymorphisms. Since that time I've dealt more with DNA sequences and the molecular markers. It is just a change of emphasis. It is not that the methods of statistics have changed, but the language needed to describe the data have changed and I needed to be sure I understood all the terminology being used by the molecular biologists.

MR. CLARKE: When you described this transition, you are referring to this transition from the use of electrophoresis to type proteins into DNA typing itself?

DR. WEIR: Yes, that is correct.

MR. CLARKE: And I believe you also mentioned, as far as the other Honor of note, your current professorship; is that right?

DR. WEIR: Yes. It is a mark of distinction given by my university which I'm very proud.

MR. CLARKE: Turning to page 2, there are a number of professional societies listed of which you are a member?

DR. WEIR: Yes.

MR. CLARKE: Doctor, any of those societies which you would describe as--

DR. WEIR: I think the most relevant ones here were the American Statistical Association, the American Society for Human Genetics and the Genetic Society of America.

MR. CLARKE: You are involved in the area of publications; is that right?

DR. WEIR: That's what I do, yes.

MR. CLARKE: As far as publications, do you serve as an editor of any journals?

DR. WEIR: Yes, I do. I am one of the senior editors for our theoretical population biology. I'm responsible for the genetics paper in that journal. For a long time I have been on the editorial board for the journal of genetics and for the last two or three years I'm on the editorial board for the American Journal of Human Genetics.

MR. CLARKE: Again referring you to page 2 of your CV, you list a number of other publications of which you are either editor or associate editor?

DR. WEIR: There have been other journals. I believe I'm still on the editorial board for the journal of heredity and some other journals that are rotated off those boards.

MR. CLARKE: I would like to shift your attention, if I can, to scientific presentations. Are you involved in giving scientific presentations?

DR. WEIR: Yes, I am. It is a very important part of our work to disseminate our findings, both through publications, which of course is the most important, but a more immediate dissemination is at scientific meetings. And in the last--I guess since 1990 I have been very heavily involved in the statistics associated with the forensic uses of DNA and on the basis of my published work I am now being--I am now receiving several presentations to present at international meetings. I will be going to Spain in the fall for the International Forensic Human Genetics Conference and in the summer of next year to Edinburgh to the International Conference on Forensic Statistics.

MR. CLARKE: Prior to today have you actually been invited and lectured in conferences involving statistics in DNA?

DR. WEIR: Yes. There was a meeting in phoenix, I believe two years ago, and at the FBI academy there was an international symposium on the forensic aspects of DNA analysis.

MR. CLARKE: Have those presentations that you've given include various parts around the world?

DR. WEIR: Yes.

MR. CLARKE: In your role at North Carolina State do you also supervise Ph.D. candidates in this area?

DR. WEIR: That's right. One student in particular, Paul Maiste, completed a thesis under my direction in 1993 and we conducted a fairly extensive examination of the means for testing for independence and mark the various components of a DNA profile. His thesis was completed and it has been on the record since 1993. The first paper from the thesis appeared in print last week in the Journal of Genetica.

MR. CLARKE: I would like to turn your attention to what appears to be page 4 of your CV and beginning on that page are there publications listed of which you have either been sole author or co-author?

DR. WEIR: Well, starting on page 4 and then running some pages it lists my complete publication list, yes.

MR. CLARKE: That is approximately one hundred publications in total?

DR. WEIR: That's right.

MR. CLARKE: Do they include a range of topics?

DR. WEIR: Well, yes and no. They are all involved in statistical analyses of genetica. Some of them are purely theoretical. Some of them are applications of these methods to specific data sets, human, drosophilia, maize, mice. It doesn't really matter as far as my work is concerned what the organism is, whenever genetic data are collected, then I'm happy to be involved in their analysis.

MR. CLARKE: Have your publications included a substantial number dealing with human genetic characteristics?

DR. WEIR: Yes, in two different directions. What I'm primarily interested in is looking for associations of genetic markers with human diseases. I think that is very important and very exciting work and I've had several papers in that field. And as I said earlier, I have also been involved in the forensic arena recently, so I have had several papers targeted specifically to the kind of data used by forensic scientists.

MR. CLARKE: I would like to call your attention, if I could, to two publications in particular, the first on page 5 that I believe is labeled no. 29 titled, "Inferences about linkage disequilibrium."

DR. WEIR: Yes. That is a paper published in `79 talking about the methods to detect associations or lack of independence between elements at different genetic loci. It is--it is one of my--I think one of my important papers. It is just a foundation for a lot of our subsequent work.

MR. CLARKE: All right. When you use the term "Independence among loci," can you tell us a little bit more about what you mean?

DR. WEIR: Well, it goes back to Mendel's second law of course. What we are interested in knowing is if the information transmitted from parents to offspring at one locus, one region of the genome, is transmitted independently of information at different loci, different regions. For loci on different chromosomes we would expect to find such independence, although as I showed in my thesis in 1968, even loci on different chromosomes may have some slight dependence on their frequencies imposed by the size of the population and the mating structure. I'm digressing. The point is that we laid out in that paper some of the methods appropriate for detecting associations, regardless of the biological cause. And I think we need to stress that today. We are not interested in the biological mechanisms as much as in the consequences. What do the data look like? Do they exhibit independence and therefore may we proceed to use product rules? Or do they not show consistency with independence in which case we need to do something else?

MR. CLARKE: In other words, basically you are looking at whether or not different regions of DNA may be linked in some fashion?

DR. WEIR: Yes. I would prefer to use the word "Associated." Linked has the technical term and we are not talking about linkage. We are talking about associations.

MR. CLARKE: Turning your attention, if I can, to page 9 of your CV, in particular a publication numbered 89 entitled, "Effects of inbreeding on forensic calculations," was that another paper that you personally authored?

DR. WEIR: Yes, it is one of my more recent and we always think our most recent papers are our best, but this was an invited paper for the annual review of genetics. The invitation came some time ago and then when it came time to actually put pen to paper, I chose to write on this current area of the forensic applications. The paper was invited, but it still was subject to a peer review, and although it has a somewhat narrow focus, I really took the opportunity to summarize a great deal of my thinking in the appropriate ways of analyzing the data. And I think I should say here that--that this, I believe, lays out the appropriate way to account for population structuring and thereby diffuse some of the problems people have felt faced by these data.

MR. CLARKE: Turning to the next page, page 10, there is also a category labeled "Commentaries and correspondence."

DR. WEIR: Yes, uh-huh.

MR. CLARKE: That appears to have thirteen different items it in. Can you just tell us in summary fashion what commentaries and correspondence are?

DR. WEIR: Well, I would like to remove from my publication those things which are not scientific papers in the sense of being through a peer review process and present novel scientific information. Some of these are reviews. The 1992 paper and the proceedings of the national academy of science was a review of the population genetic issues. I was invited by the editor of the journal to write a review, which I was pleased to do, but it did not go through a review process, a formal review. I solicited comments from several colleagues, so that is a review, then there are several letters which are felt are sufficiently annoyed with papers and journals that I would write a response, particularly to science and nature who have published once again non-peer reviewed--I don't want to say articles because they are not article--pieces of writing, they have published items often critical of the forensic uses of DNA. I think they have given a very one-sided view of the debate and occasion I have managed to get a rebuttal letter published.

MR. CLARKE: When you are referring to science and nature you are referring to science magazine and nature magazine?

DR. WEIR: Yes, sir.

MR. CLARKE: Turning to page 11, in particular a category labeled "Books," have you published books in the area of population genetics and their relationship with statistical data?

DR. WEIR: Yes. In 1990 I published a book genetic data analysis which is meant to be a very broad reference work, if would you like, of all the methods likely to be encountered by people generating genetic data of the kind we will be talking about and some other kinds. In press currently there is a book to be published by a kluwer entitled human identification. For that volume I acted as editor. I solicited articles from a variety of people who have made substantial contributions to this field and I was pleased with. They agreed to write papers. The articles all went through a review process. The collection of papers has appeared already as a special issue of a Journal Genetica and will appear as a hard cover book later this year.

MR. CLARKE: When you use the word kluwer, is that K-L-U-W-E-R?

DR. WEIR: Yes, sir.

MR. CLARKE: Turning if we can to what appears to be a second page 11; is that right?

DR. WEIR: Probably it does appear to be that way. It should be page 12, I'm sorry.

MR. CLARKE: There is also a category entitled "Book reviews"; is that right?

DR. WEIR: This is of very little consequence, I think. I publish reviews of other people's books.

MR. CLARKE: In the same general area as you have described earlier?

DR. WEIR: Generally population genetics and statistics.

MR. CLARKE: Then lastly, on what appearing to be the remaining two pages, there is a listing of published abstracts by you?

DR. WEIR: Yes.

MR. CLARKE: Briefly, what are those?

DR. WEIR: These are just descriptions of presentations of some meetings.

MR. CLARKE: All right. Your Honor, for purposes of this hearing I would ask that this particular exhibit, People's exhibit 407, be admitted.

MR. THOMPSON: No objection.

THE COURT: All right. It will be admitted.

(Peo's 407 = in evid)

MR. CLARKE: Dr. Weir, I would like to turn your attention to any activity you may have in terms of consulting forensic DNA cases.

DR. WEIR: Yes.

MR. CLARKE: First of all, do you engage in that type of activity?

DR. WEIR: Yes, I do.

MR. CLARKE: What type of role do you have when you do that?

DR. WEIR: Well, on cases in particular I'm approached by both Defense and Prosecution attorneys to give them assistance. I've al declined Defense requests because I don't believe I can argue against the forensic uses of DNA, so when an attorney contacts me for the Prosecution, I ask to see a copy of all reports provided them by the forensic scientists, and I focus on the statistical aspects of those reports. I then obtain the necessary databases used by that particular forensic scientist, conduct tests of such things as association. Essentially duplicate the statistical aspects of the report and then, if necessary, I give testimony at both admissibility hearings and the subsequent trial.

MR. CLARKE: Now, when you say you review the data, do you review the data in terms of not only the results of DNA testing in a forensic case, but also ultimately what are the frequencies reported to describe any matches?

DR. WEIR: Oh, yes, that is part of my analysis.

MR. CLARKE: And as far as looking at that type of data and your analysis, what are you looking for?

DR. WEIR: I'm looking for confirmation of my prior beliefs that the DNA markers used in forensic science associated freely, there is no evidence for dependence within loci.

MR. CLARKE: Does that again relate to the ultimate use in a given case?

DR. WEIR: Yes, I'm sorry. Once we have demonstrated consistency with independence, then we may proceed to use the product rule. As I think I said earlier, if I find evidence for dependence, then we have to modify the production of profile frequencies.

MR. CLARKE: When you use the term "Dependence," would that then be the same as referring to association, if you find it?

DR. WEIR: That's right.

MR. CLARKE: Approximately how many times have you consulted in this manner you've described?

DR. WEIR: I think I've given testimony in sixteen cases.

MR. CLARKE: And is that in one state or more than one state of this country?

DR. WEIR: It is--east and west coasts, California, Oregon, Washington on the west coast.

MR. CLARKE: And in those instances have you been allowed to testify as an expert in this area of genetic data and population frequencies?

DR. WEIR: Yes.

MR. CLARKE: Now, as far as your own experience, and if you could describe to the Court, please, how is it that in terms of these DNA type techniques and genetic marker results that are obtained using them, that you became involved and experienced in examining the data obtained as a result of these testings? Is that question clear?

DR. WEIR: It wasn't particularly clear.

MR. CLARKE: I didn't think so. What I'm really asking you, Dr. Weir, is, as far as these DNA typing techniques and then ultimately obtaining results from them, how did you gain your experience to be able to look at these results and then determine from these tests whether or not there is, for instance, any of this association?

DR. WEIR: Well, my experience really points to my entire career since my--the early publications I have been involved in setting up methods, not all of them of course directly relevant, but we talked about a 1979 paper. And at that time we were setting up statistical methods to analyze genetic data. This was, remember, a long time before DNA markers were in vogue. The methods we developed at that point have--have come to be seen as appropriate for the data we are currently involved with. So I think I'm qualified and have been requested to work on these issues on the basis of my publications, which as I said, date back a long way.

MR. CLARKE: And they deal with, for example, RFLP typing results and data generated as a result of that?

DR. WEIR: Oh, certainly.

MR. CLARKE: As well as PCR type results?

DR. WEIR: Absolutely.

MR. CLARKE: Have you in fact developed methods, that is, personally developed methods to evaluate this type of information?

DR. WEIR: Well, I can't publish a paper unless I have something new, so my papers I think invariably describe new tests or new approaches to old tests or evaluations of tests, so I think it is fair to say that the methods I use are either so standard that they don't need to be justified or they are ones that we have worked on provided the justification.

MR. CLARKE: You described around I believe it was 1983 during your sabbatical and I think that was the Guggenheim fellowship period?

DR. WEIR: Yes, sir.

MR. CLARKE: That obviously--or first of all, let me ask it as a question. Was that around the time that DNA typing techniques were being developed?

DR. WEIR: As it turns out probably while I was sitting in Edinburgh Professor Jeffries was down the road at Lester working on the method which subsequently came to be called DNA fingerprints.

MR. CLARKE: As far as these methods that you utilized or have developed to evaluate genetic marker data, did you develop some of those methods even before DNA typing was available?

DR. WEIR: Yes, certainly.

MR. CLARKE: And have you developed additional methods since DNA typing has been available?

DR. WEIR: Yes. One of the--one of the interesting aspects of the forensic uses, apart from the obvious applications, the interest to me is that the data are so discriminating, the RFLPs in particular have so many types, which is the reason they are used, that they presented some novel challenges for such issues as testing for independence, so we had to do a little development and extension of our previous works and then of course our methods must be tailored to the way that the data are generated. I'm sure you've heard described Cellmark's floating bands method or the FBI's fixed band method. These are different ways of generating data. Those different ways must be reflected in the method of analysis, so I've had to accommodate those methods in the subsequent analyses.

MR. CLARKE: That was actually going to be the next question I asked and perhaps I can ask it in a somewhat summary fashion: In your evaluation of DNA typing data, do you use methods that were involved either by yourself or others even before DNA typing was available?

DR. WEIR: Yes. I think I've said that, yes.

MR. CLARKE: And do you also then use methods developed either by yourself or others to evaluate DNA typing data that were involved as DNA typing was available?

DR. WEIR: Certainly, yes. I think it is necessary to perform appropriate statistical validation studies on the forensic databases--

MR. CLARKE: So is it correct--I'm sorry.

DR. WEIR: --before they are used.

MR. CLARKE: Is it correct to say then that many of these techniques that are even used today to evaluate DNA data have been in existence for many, many years?

DR. WEIR: Oh, certainly.

MR. CLARKE: Now I would like to turn your attention, Dr. Weir, to experience that you've previously had with Cellmark diagnostics.

DR. WEIR: All right.

MR. CLARKE: Is there any relationship between your university and Cellmark?

DR. WEIR: Yes. We have a contractual arrangement. I think it is effectively called a memorandum of understanding whereby my university undertakes to perform analyses for Cellmark.

MR. CLARKE: What work do you--well, first of all, are you involved in that relationship?

DR. WEIR: Yes.

MR. CLARKE: What type of work does that entail?

DR. WEIR: I'm currently--the immediate reason for the contract was to evaluate their new databases. As you probably know, they have data collected from their paternity testing business, and they have culled data from their paternity records to serve as a forensic database and Cellmark wished these new databases to be evaluated for independence.

MR. CLARKE: And you have been involved in that evaluation?

DR. WEIR: Yes, sir.

MR. CLARKE: Are you familiar with the methods used in Cellmark or at Cellmark diagnostics as far as reporting population frequency data based on DNA matches?

DR. WEIR: Yes, I am.

MR. CLARKE: When did you first become familiar with the methods that they utilize?

DR. WEIR: I think it must have been late 1990. I had discussions with them and they provided me with copies of their then current databases and were very generous in both sharing the data and explaining in some detail how the data were collected, how they were used, explained their banding strategies and so forth. And with their cooperation I was able to perform analyses and subsequently publish those, I think it was 1990 in the paper in the American Journal of Human Genetics.

MR. CLARKE: In fact in your CV do you list a specific reference, and perhaps if you are able to point us in the direction of what publication number that publication is in which you published your own results of evaluating data at Cellmark?

DR. WEIR: That is item no. 77. It was published in 1992.

MR. CLARKE: Listed on page 8 of your CV?

DR. WEIR: Yes, sir.

MR. CLARKE: I'm sorry, that was no. 77?

DR. WEIR: No. 77.

MR. CLARKE: As far as your familiarity with frequency calculations and frequency data as Cellmark, does that include RFLP data?

DR. WEIR: Yes. This--this paper we are talking about here was RFLP. As part of our contract we've also examined their current PCR database.

MR. CLARKE: Would that include the genetic marker DQ-Alpha?

DR. WEIR: DQ-Alpha polymarker, yes.

MR. CLARKE: When you use the term "Polymarker" are you referring to five individual genetic markers that are collectively referred to as polymarker or PM?

DR. WEIR: That's right.

MR. CLARKE: I would like to turn your attention, Dr. Weir, to the California Department of Justice.

DR. WEIR: All right.

MR. CLARKE: To your knowledge--well, first of all, are you aware of what types of data are used at the California Department of Justice in the area of frequency data?

DR. WEIR: Yes. Over the last few months I have held--I had several conversations with a Gary Sims who explained to me that Cellmark--excuse me--the DOJ uses data collected by the FBI.

MR. CLARKE: Could you describe for the Court, please, how and if you are familiar with FBI data in the area of DNA typing?

DR. WEIR: Yes. I first met Dr. Budowle from the FBI I think in December of 1989 and he asked for some assistance in collaboration on interpreting and analyzing their databases and subsequently provided me with their current and subsequent versions of their various databases. As a result of that initial contact I did some work on their RFLPs and published an analysis of that also in 1992, item no. 72, a paper published in the journal of genetics. Since this time I've kept close contact with the FBI and we have no financial contractual arrangements at all with the FBI. I've kept close contact with them and they have added more probes. I have kept up, if you like, with their analysis, and the most recent data I obtained from them was in this year, RFLP, and I've also got a copy of their--a set of their PCR-based loci and performed analyses on those.

MR. CLARKE: So you are familiar with the FBI's databases as used by the Department of Justice in this case both in the "A" markers as well as the PCR markers used at the Department of Justice?

DR. WEIR: Yes, I am.

MR. CLARKE: To your knowledge does that include DQ-Alpha and D1S80, and I'm referring to the Department of Justice?

DR. WEIR: Yes. There is a compilation of seven loci; DQ-Alpha, D1S80 and the five collectively known as the polymarker.

MR. CLARKE: The publication you described, that publication involved your analysis of FBI data; is that right, in particular, RFLP frequencies?

DR. WEIR: Item no. 72 and then a more recent paper, the one, no. 96, also an RFLP data from the FBI.

MR. CLARKE: And that was published in the journal of genetics?

DR. WEIR: Genetica.

MR. CLARKE: As far as your own personal analysis of data, has that been limited to Cellmark and the FBI or has it included other forensic laboratories?

DR. WEIR: No. I've been kept quite busy in the private sector. I've looked at data from lifecodes, genetic design and a Roche Biomedical. In the government agencies, apart from the FBI, the State Bureau of Investigation in North Carolina and the corresponding agencies in South Carolina, Dade County and Broward County in Florida, Minnesota, Oregon, Toronto, New Zealand, Australia and United Kingdom.

MR. CLARKE: Now, in these analyses that you undertake with regard to these labs, can you briefly tell us what that entails? What are you looking for?

DR. WEIR: Well, we are looking primarily for any evidence of associations between the various types and we are also looking for measures to the degree to which different populations differ; the amount of difference and frequencies between, say, Caucasians and Hispanics.

MR. CLARKE: Have you, first of all, with reference to this particular case before the Court involving Mr. Simpson, have you undertaken a review of frequency data generated by both Cellmark and the California Department of Justice?

DR. WEIR: Yes.

MR. CLARKE: And in the course of that review have you produced a report?

DR. WEIR: I have a somewhat fluid report, yes.

MR. CLARKE: By "Fluid" what do you mean?

DR. WEIR: I mean it has been undergoing improvements.

MR. CLARKE: Your Honor, at this time I would ask to have marked as--perhaps the best method would be exhibit 408--

THE COURT: All right.

MR. CLARKE: --and 408-A, and I will describe them. Exhibit 408-A appears to be a report by Dr. Weir dated June 21st, 1995, consisting of what appear to be one cover sheet plus pages 1 through 48. And I would ask that 408-B, a similar report dated also June 21st, but with the additional notations "Addendum" which appears to consist of four pages plus a cover sheet.

THE COURT: Thank you.

(Peo's 408 for ID = Dr. Weir report)

(Peo's 408-A for ID = Dr. Weir report/addendum)

MR. CLARKE: Which have been provided to the Defense at more than one time period in different forms.

MR. CLARKE: Dr. Weir, showing first what will be exhibit 408, the lengthier document, is that the report that you have prepared in this case?

DR. WEIR: Yes, it is.

MR. CLARKE: Referring specifically--well, let me go a little further with exhibit 408. First of all, that has some stamped number in the upper right-hand corner; is that right?

DR. WEIR: DNA, is it, 09477.

MR. CLARKE: You are not involved in the placement of those numbers; is that right?

DR. WEIR: No. Those numbers are not mine.

MR. CLARKE: With regard to this particular document--and it is dated yesterday; is that right, June 21st?

DR. WEIR: Yes.

MR. CLARKE: Did you, since yesterday, produce what can be categorized as two replacement pages with some changes in data on two of the pages?

DR. WEIR: Yes, I did, and I should apologize, although I don't think I am completely to blame, in doing PCR--in doing RFLP calculations for the DOJ report, I had included all the bands they reported in their profiles, forgetting or not knowing that they do not report frequencies on the high molecular weight bands, so that I apologize for that. I removed those bands yesterday and essentially replaced those two pages.

MR. CLARKE: That led to a correction of those two pages?

DR. WEIR: Right.

MR. CLARKE: In other words, the information you obtained yesterday?

DR. WEIR: Yes.

MR. CLARKE: Could you just tell us what your page numbers are for those two pages so that the record will be clear?

DR. WEIR: It is pages 21--excuse me. Page 22 and the corrections are on table 18, and I see this copy is annotated, replaces, and then on page--I believe it is page 43.

MR. CLARKE: Or 41?

DR. WEIR: Excuse me. Table 41, table 32. Those are both tables, refers to the DOJ's RFLP calculations now reflecting the fact that the high molecular weight bands do not have frequencies assigned to them.

MR. CLARKE: Incidentally, do those corrections in those two replacement pages have anything to do with DNA mixtures in this case?

DR. WEIR: Oh, no, no.

MR. CLARKE: Now, if I can turn your attention to the shorter document, 408-A, can you simply tell us briefly what this document is.

DR. WEIR: Yes. The--my full report contains information on mixtures, except for the RFLP mixtures on the glove reported by DOJ. I received that information later, so this addendum is simply to present really a table of frequencies for the three items from the glove on which there were RFLP mixtures.

MR. CLARKE: So the addendum 408-A refers to RFLP glove mixtures; is that right?

DR. WEIR: Yes, sir.

MR. CLARKE: Now--

DR. WEIR: From DOJ.

MR. CLARKE: From the Department of Justice?

DR. WEIR: Yes.

MR. CLARKE: As far as this case, can you describe for us the material that you reviewed to conduct your analysis?

DR. WEIR: Well, I've reviewed the various reports provided by both Cellmark and DOJ and of course as always in any such case I review the appropriate databases from either the FBI or from Cellmark. Maybe this is the appropriate place to say that all my calculations rely on three sets of data; the Cellmark, RFLP databases, both their original and any new information. That is one set. The FBI's RFLP data, seven RFLP loci and then the FBI's PCR database, the whole seven PCR loci.

MR. CLARKE: As far as this review, you utilized material provided to you by both laboratories?

DR. WEIR: Well, I--yes, both their reports, which I obtained through the Prosecution and numerous telephone conversations.

MR. CLARKE: That was actually going to be my next question. Did there come instances or did there arise instances in which you had questions that you needed answers from the testing laboratories?

DR. WEIR: Yes. And in particular on the mixtures. I needed to be absolutely sure what the--what the labs had found in their mixture studies and I believe I now understand that and they greatly simplified the analysis to have a complete understanding.

MR. CLARKE: Did there come a time when you were asked to--you were requested to examine pictures in this case as far as frequency data was concerned?

DR. WEIR: Well, I'm not sure. As soon as I obtained the reports, I proceeded to do an analysis and then I think Miss Kahn asked me, or maybe it was you, who asked me a little while ago to do a complete analysis.

MR. CLARKE: Perhaps we can provide a little bit of a history. Did you produce an initial report earlier this year?

DR. WEIR: Well, yes. In December I wrote a report and began on the analysis of mixtures and didn't proceed very far at that point, merely to point out that there were mixtures available, these needed to be interpreted, but I don't believe I did any calculations at that point.

MR. CLARKE: Did you perform calculations on the non-mixtures?

DR. WEIR: Oh, yes, on all single stains that were available to me then.

MR. CLARKE: And I believe you said that was as early as December?

DR. WEIR: Yes. I wrote the report and sent it late December.

MR. CLARKE: Now, carrying forward to later in 1995 were you at some point asked to look at mixtures in terms of calculating frequencies?

DR. WEIR: Yes.

MR. CLARKE: And you simply don't recall if that was Miss Kahn or myself?

DR. WEIR: No, I don't.

MR. CLARKE: Can I have just a moment, your Honor?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Dr. Weir, as far as mixtures, what I'm going to ask you to do is describe for the Court, please, about the area of attaching frequencies to mixtures. What can you tell us about that?

DR. WEIR: Well, I would like to do it slowly.

MR. CLARKE: That is a good idea.

DR. WEIR: To set the language to talk about single stains first because it is not different. When there is a single stain found to match a person of interest, to attach some numerical weight to that evidence of a match, the first step is to calculate the frequency with which random people would produce the profile found in the stain. So we loosely say we calculate the frequency of the--of the evidentiary profile. In essence we add up all the possible people who could have contributed. Now, the addition is kind of trivial because there is only one type, this is a single genotype, and we add up that single genotype frequency. And that number is what we've seen reported in this case. Typically these are given as 1 in some number, 1 in a thousand, 1 in a million. Remember that those are frequencies. Frequencies of the stain. It is best to interpret that number by flipping it upside down and saying the evidence is a thousand times more likely to have arisen if it was given by this person versus if it was given by an unknown person. It is the unknown person for whom we've calculated the frequency. Now let's turn to a mixture and if we look at the--all the typing, and there are more than two alleles at any locus--

MR. CLARKE: And you are referring now to whether it is RFLP or PCR markers?

DR. WEIR: That's correct. Any of the loci examined, if they have more than two alleles, we have evidence that there was more than one contributor to the stain. If we look at all the loci and found two, three or four alleles at every locus, we have evidence that there were two contributors. If we found more than four alleles at any locus, we would have evidence of at least three contributors, and so forth. To keep things in focus here, let's suppose that the evidence and all the loci typed has four or fewer alleles. The evidence points to their being two contributors. We want to attach a frequency. The question--and it is not possible to avoid the proper framework. The framework is how do we interpret the evidence. We believe either that the evidence, the stain, was contributed by these two particular people or three particular people or it was not. The "Or it was not" can be interpreted as this stain was contributed by two unknown people or by three unknown people. What is the frequency with which two unknown people would contribute this stain? So we add up all the frequencies of two people, pairs of people, who between them would have this mixed stain. So if there was a single locus and there were four bands, four alleles, 1, 2, 3 and 4, we have to add up all the possibilities. How likely is it that two people, two unknown people between them would have these four bands? The people might be--the first person might have bands 1 and 2 and the second person have bands 3 or 4 or it might be that the first person has bands 1 and 3, second person 2 and 4.

There are a whole host of situations. It is essential to interpret the data correctly. The evidence suggests there is a mixture. To form an analysis which ignores the evidence of there being a mixture is wrong, it is completing misleading. We must add up the frequencies under the situation suggested by the evidence. The evidence suggests two contributors. We must add up the frequencies with which two contributors between them have this mixed profile.

MR. CLARKE: All right. Could I have just a moment again, your Honor?

THE COURT: Yes.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Your Honor, at this point I was going to turn to the use of the elmo so that the witness could demonstrate something, however, we apparently need, if we could have, a brief recess to be able to do that.

THE COURT: How brief?

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Approximately 10 minutes I'm told.

THE COURT: What do we need to have?

MR. CLARKE: Just the overhead projector, the elmo system turned on, because the document is not complicated--using the document is not complicated.

THE COURT: Why don't you just hand me the document.

MR. CLARKE: All right. That's fine. I have given a copy to counsel.

THE COURT: All right.

MR. CLARKE: Actually, let me start with using one of the boards, if I may, your Honor.

THE COURT: All right.

MR. CLARKE: Dr. Weir, what I'm going to ask you to look at is a particular result in this case. First of all--

THE COURT: Mr. Clarke, why don't you go ahead and spin that around, so both the doctor and I can see it, since we don't have to worry about whether the jury can see it. Thank you.

MR. CLARKE: First of all, Dr. Weir, have you seen a smaller or eight-and-a-half-by-eleven version of this particular board?

DR. WEIR: Yes, sir.

MR. CLARKE: What I'm going to ask you to do--and first of all, in your analysis of the results in this case, did you look at what is labeled on this board as item no. 29, steering wheel?

DR. WEIR: Yes.

MR. CLARKE: Would that be an example that you could use, that is, the actual results with regard to that item, to talk about frequencies in mixtures?

DR. WEIR: That would be fine.

MR. CLARKE: That particular item contained results, and let's look, if we can, at simply the DQ-Alpha marker. Is that acceptable?

DR. WEIR: That's fine.

MR. CLARKE: The particular results on item no. 29 at the DQ-Alpha marker showed the appearance of three different alleles; is that right?

DR. WEIR: That's right. And just reading from the board here would be 1.1, 1.2 and 4, and I should say now that I am taking no notice of descriptors such as weaker or possible trace. I am assuming that if the allele is mentioned, it is present.

MR. CLARKE: So when you perform your own analyses, when a particular allele is described as present, you are not paying attention, for frequency purposes, of a description such as weaker, trace, et cetera?

DR. WEIR: That's right.

MR. CLARKE: Now, with regard to that particular item at the DQ-Alpha marker, does that indicate a mixture?

DR. WEIR: Yes. There are three alleles and that must obviously--implies more than one contributor. One person would only have two alleles.

MR. CLARKE: As far as your review of this particular case and the specific results, and in particular with regard to that item, were you asked to calculate an approximate frequency to describe that mixture and how often one might encounter that mixture?

DR. WEIR: Yes, I was, and to calculate the frequency with which two contributors or three contributors would have between them those three alleles.

MR. CLARKE: All right. Your Honor, if I may, I would like to have marked then as exhibit 409 a one-page document that is labeled at the top "Percentage of population included in LAPD no. 29."

THE COURT: All right.

(Peo's 409 for ID = document)

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: I'm told that if the monitors are turned on, that we can proceed, your Honor.

(Brief pause.)

THE COURT: All right. Dr. Weir, I think this is a "On" button on your monitor there.

DR. WEIR: It seems to be on.

THE COURT: Yes, it is.

DR. WEIR: Thank you.

MR. CLARKE: As a foundation, with what will be marked exhibit 409, the one-page document, have you had an opportunity to look at that document?

DR. WEIR: Yes.

MR. CLARKE: You probably are asking yourself what document is it. Did you have a chance--

DR. WEIR: Yes. You have shown me this page, yes.

MR. CLARKE: And does that page relate to item no. 29 and the particular alleles that were revealed by testing by both Cellmark and the Department of Justice?

DR. WEIR: Yes. It just lays out, without the--all the details, it lays out the method I used to calculate the frequency of two contributors to a mixture.

MR. CLARKE: Very good.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Actually let me also hand a copy--first of all, Dr. Weir, there have been copies made.

MR. CLARKE: Showing you this one-page document that will be exhibit 409, is that the document that you had an opportunity to look at?

DR. WEIR: Yes, sir.

MR. CLARKE: And we have an extra copy for the Court also, if you could hand yours--

DR. WEIR: Certainly.

(Brief pause.)

MR. CLARKE: Now, Dr. Weir, could you describe what this particular document shows.

DR. WEIR: Yes. This is just as I said, it is to lay out the possibilities with which two people would contribute to the DQ-Alpha mixed stain. As we've said, the mixed stain has three alleles, and we know therefore it is a mixture. I should say there is no evidence at any of the loci typed on item 29 of there being three contributors; however, for this demonstration we have two--we have--we are working under the assumption there where two contributors and I must stress we must work under the assumption of it being a mixture. By definition there is more than one contributor. So we need to examine the possibilities, how likely is it that two people would have between them these three alleles, so we've listed--you have listed out looks like a dozen or so possibilities. The first person, for example, the first row here, the first person could be a 1.1 homozygote, the second person a 1.2 and 4 heterozygote.

MR. CLARKE: In other words, let me stop you for a moment. That is one possibility when there are two contributors to a mixture, to produce the results that were obtained by these laboratories?

DR. WEIR: That's right. If--if those three people were the contributors to the stain, the stain would look like as it does. The stain would have those three alleles, no more and no less, if those three people were the contributors.

MR. CLARKE: Now, is the remainder of that left-hand column or the two left-hand columns, "First person" and "Second person," simply the remaining possibilities for a two-person mixtures producing those results?

DR. WEIR: Yes. I think there are all the possibilities, all the ways in which two people between them could have those three alleles.

THE COURT: Is the second line a misprint, first person 1.2--

DR. WEIR: It should be a 1.2, 4, yes, your Honor.

MR. CLARKE: I'm afraid I will have to take responsibility for that, your Honor.

MR. CLARKE: Incidentally, this document, it was not prepared by you; is that right, Dr. Weir?

DR. WEIR: That's correct.

MR. CLARKE: Should that one point under the listing of first person simply be deleted so that it would read 1.2, 4?

DR. WEIR: Yes.

MR. CLARKE: Now, in the upper portion, and this is referring simply to the first listing of first person, 1.1, 1.1, and second person, 1.2 and then 4, there are listed two categories of racial groups; is that right?

DR. WEIR: That's right. One--excuse me.

MR. CLARKE: Is this simply one listing of what--and if the chart were complete there would be many more listings?

DR. WEIR: That's right. And in all our calculations, single or mixed stains, when we compute frequencies for unknown people we must recognize that these are really unknown. We know nothing about their ethnicity. We don't know which frequencies to attach, so we go through all the possibilities we have. For example, these two people, the first one may have been African American and the second Caucasian, or vice versa, or the first one may have been African American and the second Hispanic or vice versa, and we could go on. And what I have done in this case is to assume that either of the two people were not of four different ethnicities but have frequencies I've taken from four different databases.

MR. CLARKE: Incidentally, this chart, as is shown now on the overhead projector, is it taken simply from your report?

DR. WEIR: This is essentially an extraction of table 29-B.

MR. CLARKE: And in your report have you described all of these combinations under the first person and second person, as well as all of the major racial category combinations for both a two-person and a three-person mixture?

DR. WEIR: I have.

MR. CLARKE: Can you describe for the Court, please, and I'm referring now to again simply the first possible combination listed at the top, how a calculation is made by you or was made by you with regard to this mixture?

DR. WEIR: Yes. We'll I'm invoking the product rule. I'm calculating the frequency of a combination of alleles by multiplying together their separate frequencies.

MR. CLARKE: So if you could, just describe for us what those numbers--what are they describing that are listed under the two racial categories and then ultimately the frequency at the end.

DR. WEIR: All right. So the first line of the table is where the first person was a 1.1 homozygote, this unknown person, and this unknown person has frequencies which could be described by the African American database. Now, I've reported those frequencies in my report, but I will just tell you the frequency in the FBI's PCR database for allele 1.1 in the African Americans is .117, so we square that frequency, multiply it by itself because we have two copies of that allele for that unknown homozygous person.

MR. CLARKE: Let me stop you for a moment. When you square it or multiply it by itself, is that the same process that is used for describing stains from one donor in this case?

DR. WEIR: Certainly.

MR. CLARKE: And that is used across the various boards, is it?

DR. WEIR: Yes.

MR. CLARKE: That you have been provided copies of?

DR. WEIR: Yes.

MR. CLARKE: In other words, those are frequencies that have already, to your knowledge, been reported in Court in this case?

DR. WEIR: Those are the single-person frequencies, yes.

MR. CLARKE: All right. Proceed, if you would.

DR. WEIR: So that we have accounted--now, we have attached a number to the chance of the first person being of 1.1 homozygous genotype and frequency from African American. The second person we have assumed for this calculation are Caucasian. We don't know, we have assumed it for this calculation here, that person is a 1.2, 4 heterozygote, so we multiply together the frequencies of the 1.2 allele. That number is .176 and the 4 allele, that number is .328 and of course we have to double that product from the--we don't know which way round the alleles came to the person, what their parental origins are, so we now have a frequency to--if this is the 2 PQ frequency for that genotype from a Caucasian database.

MR. CLARKE: And again, is that the same step, that is, of multiplying the frequencies of the two different alleles and then multiplying it by two, that is used in the reporting of single-stain DNA results?

DR. WEIR: Yes, it certainly is. Now, because what--now, the only novel feature of this analysis is to recognize there were two contributors and these people, we are assuming, are independent and we multiply their frequencies together, so--and that is the right-hand column, that .00158, which is about .15 percent. That is the frequency with which two people at random have those two specific genotypes, one person being African American and the other being Caucasian.

MR. CLARKE: Now, do you then undertake that same analysis with regard to--and let's just stay with, for the moment, the first possible combination of 1.1, 1.1 and 1.2, 4, do you calculate that for each of the racial combinations that are possible?

DR. WEIR: Yes. As I said, I'm using the FBI's four databases, so there are a total of ten possible pairs of databases.

MR. CLARKE: Do you also then, and did you, in terms of your analysis in this case, perform the same calculation for the remaining eleven combinations of DQ-Alpha types amongst two people?

DR. WEIR: That's right.

MR. CLARKE: And do you, for each one of those, produce ultimately a frequency for each combination that would on this chart, if it were totally complete, then go under the category or column of "Frequency"?

DR. WEIR: That's right.

MR. CLARKE: Once you've done that for each possible combination, what do you do next?

DR. WEIR: Add up those--sum those frequencies, sum the frequencies of the unknown contributors.

MR. CLARKE: In other words, sum in this instance what would be .15 percent, sum the next calculation for the second combination of markers and on down to the bottom with all twelve?

DR. WEIR: That's right. We sum the frequencies of all the possible genotypes for the pairs of people that could have contributed, yes.

MR. CLARKE: And in terms of your analysis in this case, as well as your report, did you report those totals for each racial category combination?

DR. WEIR: Almost. We are almost there. This is for the DQ-Alpha.

MR. CLARKE: Yes.

DR. WEIR: We then need to repeat the calculations for the other loci in the mixture. In this case--well, I guess it is only DQ-Alpha here, so excuse me, so then we are complete. The sum of those twelve numbers as reported here is 1 in 71.

MR. CLARKE: And that would be for what racial category?

DR. WEIR: That is when either of the contributors was African American and the other was Caucasian.

MR. CLARKE: Incidentally, with regard to item 29--and let's clarify that. Assuming that were indeed--well, first of all, were you informed and provided material that there were also polymarker results on the steering wheel?

DR. WEIR: Yes, and I just misled you. The 1 in 71 is in fact the number from using all the loci, so that would be the Cellmark determination. DQ-Alpha plus polymarker I have used all the six loci, done a calculation like we see on this chart, multiplied those results from each locus together, multiplied the sum for each locus.

MR. CLARKE: Now, when you have used the example of 1 out of 71, that was just one of the combinations possible? That is one African American and one Caucasian, correct?

DR. WEIR: Right.

MR. CLARKE: And you also performed this summing technique for each of the combinations of African American, causation, southwest Hispanic and southeast Hispanic?

DR. WEIR: Yes, the whole ten combinations.

MR. CLARKE: And you in fact produced tables showing what the frequencies would be using this calculation method for each of these combinations?

DR. WEIR: I did.

MR. CLARKE: This method that you have described, in your opinion, is that an appropriate one to describe a frequency?

DR. WEIR: It is--it is both my opinion and it is the recommendation from the literature.

MR. CLARKE: When you say "The literature," what are you referring to?

DR. WEIR: I'm referring to a paper by Ian Evett in 1989, I think.

MR. CLARKE: Is that--

DR. WEIR: Evett, 1991 journal of the forensic science society, volume 31, page 41.

THE COURT: Spell the name for--

DR. WEIR: E-v-e-t-t.

MR. CLARKE: What is there about there--well, let me rephrase that question. Did you conduct this same analysis in this same method with regard to the remaining mixtures in this case?

DR. WEIR: Yes, I did.

MR. CLARKE: Does this method apply to RFLP results as well as DQ-Alpha results?

DR. WEIR: Certainly.

MR. CLARKE: I'm sorry. Does it apply to not only RFLP results but also PCR results as well?

DR. WEIR: Yes.

MR. CLARKE: Your Honor, at this time I would ask to be marked as exhibit 410--

THE COURT: 410.

MR. CLARKE: --a document previously provided to the Prosecution by the Defense some weeks ago entitled "Percentage of population included in stain no. 29 Bronco steering wheel." That has a different appearance than the previous chart.

THE COURT: All right.

(Peo's 410 for ID = document)

MR. CLARKE: And perhaps if we could, with the Court's permission, use the projector again.

MR. CLARKE: Dr. Weir, do you see the document that will be marked shortly exhibit 410?

DR. WEIR: Yes.

MR. CLARKE: Have you seen that document previously?

DR. WEIR: Yes.

MR. CLARKE: Does this document refer to the same results, and I'm referring to just the DQ-Alpha results on the same evidence item, no. 29, the steering wheel stain?

DR. WEIR: Yes, it does.

MR. CLARKE: Is this--well, first of all, is this a table of some sort?

DR. WEIR: Yes.

MR. CLARKE: Does it describe--

DR. WEIR: It describes--it adds up--it describes the single-person genotypes who could have been contributors to the stain. Let me restate. It lays out all the genotypes of individual people who could be amongst the contributors to the mixed stain.

MR. CLARKE: How does this compare--and I'm only referring to the listing of possible genotypes. What differences, if any, are there between this chart and your own?

DR. WEIR: Well, they are the same for each--for an individual. That chart and yours both list all the possible genotypes.

MR. CLARKE: There were twelve combinations listed on your chart and there appear to be simply six listings under the term "Matching genotypes" on this second chart exhibit 410; is that right?

DR. WEIR: That's correct.

MR. CLARKE: What is the difference between the two?

DR. WEIR: Well, the one we are looking at on display now is for single people. It has no relevance, of course, because we know this is a mixture. This is a mixture of at least two people. So to add up the frequencies of single individuals I would say at best is misleading.

MR. CLARKE: Well, let's go into a little bit more detail about this chart. What does it list off to the right of the column matching genotypes?

DR. WEIR: Well, for each of the single genotypes the frequencies are listed from three databases and those frequencies I'm sure are correct, so 1.9 percent of Caucasians are expected to be 1.1 DQ-Alpha homozygote. And it is interesting, 1.9 percent, I imagine, if we--I should say we have slightly different databases, but that 1.9 corresponds to our previous .117 squared. It is the same--purports to be the same frequency. The numbers are different because they are different databases.

MR. CLARKE: Okay. Let me stop you for just a moment. As far as a description of differences in approaches to mixtures, the fact that the databases in this specific example are different, does that impact your ability to describe the different approaches to--

DR. WEIR: No.

MR. CLARKE: --frequency calculations?

DR. WEIR: No, it has no impact.

MR. CLARKE: Now, as far as these frequencies then on this chart, exhibit 410, do they reflect then simply frequencies in these three racial groups, major racial groups of these different six genotypes?

DR. WEIR: That's right.

MR. CLARKE: You have used the term "This is misleading" referring to this chart; is that right?

DR. WEIR: Absolutely is, yes.

MR. CLARKE: And you are referring to it being misleading in the context of the results for item 29 in this case; is that right?

DR. WEIR: Yes, I believe it is quite misleading.

MR. CLARKE: Why is it quite misleading?

DR. WEIR: Because it gives the impression that this mixed genotype would occur--it gives the impression--it doesn't say so, but it gives the impression that this mixed stain would occur in 45.4 percent of Caucasians. Now, I know that is not what that chart says, but that is the distinct impression it is giving. The impression is given that this mixed stain would be found almost half the time if the unknown contributor was Caucasian. That is nonsense.

MR. CLARKE: Why?

DR. WEIR: Because we have a mixture of three alleles from two people or more. It is not--it makes no sense at all to say that that mixture could occur nearly fifty percent of the time--

MR. CLARKE: With regard to--I'm sorry.

DR. WEIR: --when I have just demonstrated that the frequency with which two people would give rise to that mixture is 1 in 71 and we can go on to describe the frequency with three people. We cannot and should not present any analyses on mixtures which ignore the fact that it is a mixture.

MR. CLARKE: In your opinion, does this chart, simply summing up the genotypes, ignore the fact that the stain is a mixture?

DR. WEIR: It does.

MR. CLARKE: In your own calculations--and I believe you have already stated you did it for both two possible contributors as well as three possible contributors; is that right?

DR. WEIR: I did.

MR. CLARKE: Does this calculation process, as shown again in the document, exhibit 410, that is on the projector, does it differentiate in any manner between two contributors, three contributors or however many?

DR. WEIR: This document makes no such distinction. It is only for a single contributor, in fact.

MR. CLARKE: In your opinion, is the method utilized by you in this case a more accurate and reliable means of assigning a frequency to a mixture?

DR. WEIR: I would take out the word "More." It is reliable and accurate.

MR. CLARKE: In your view is the method, as demonstrated by this exhibit, 410, can you say the same about it?

DR. WEIR: It is not appropriate.

MR. CLARKE: Now, for purposes of this hearing only, your Honor, I'm going to ask the witness to refer to a passage that we have previously discussed in the National Research Council report.

THE COURT: Funny. I was about to do that myself.

MR. CLARKE: And I think I have a Xeroxed copy of that page, if that is acceptable. I don't know if the Court wants it marked as an exhibit or not.

THE COURT: We can refer to it as page 59 of the NRC report, if that is what you are about to do.

MR. CLARKE: Yes, exactly.

THE COURT: All right.

MR. CLARKE: Showing you, Dr. Weir, a one-page Xerox--first of all, have you had an opportunity before today to read a document entitled "DNA technology in forensic science" from the National Research Council?

DR. WEIR: Yes, I have read it.

MR. CLARKE: Have you in fact read it in detail on prior occasions?

DR. WEIR: Yes.

MR. CLARKE: The document before you, that is simply a one-page Xerox, although I believe it has some highlighting on it in yellow of in particular page 59 of that report?

DR. WEIR: Yes, it is.

MR. CLARKE: That report contains a reference to samples that are mixtures; is that right?

DR. WEIR: Yes.

MR. CLARKE: And in particular with respect to that reference, the final sentence in what appears to be the fourth full paragraph contains a statement about an appropriate manner, according to this report, of dealing with mixtures; is that right?

DR. WEIR: That's right.

MR. CLARKE: Could you just read that sentence.

DR. WEIR: "If a suspect's pattern is found within the mixed pattern, the appropriate frequency to assign such a match is the sum of the frequencies of all genotypes that are contained within. Ie, that are a sub-set of the mixed pattern."

MR. CLARKE: With regard to that statement, what does that mean to you as an expert?

DR. WEIR: Well, I have trouble answering that question as I would have answering any question on this NRC report, however, because I have little regard for the report's statistics. The report is saying that we should add up the frequencies of all genotypes that is contained. The sentence is ambiguous. It would allow a person to interpret as adding up the genotypes for single people, as we see on the chart--on the board, or to add up the frequencies of genotypes, meaning genotypes of the plural contributors, which is what I've done.

MR. CLARKE: Okay. Let me stop you for just a moment. From your reading of that one-sentence description or recommendation, is it your opinion that it is written in such a fashion that you can't determine from its words whether it is describing the technique that you have used in this case or any other technique?

DR. WEIR: I believe it is ambiguous, yes.

MR. CLARKE: In your view does it cover the technique as shown by exhibit 410, which is simply adding up genotypes?

DR. WEIR: Yes.

MR. CLARKE: In your opinion does it also include the technique utilized by you and previously described this morning in this case?

DR. WEIR: I think it does, but I don't think that is relevant to my calculations.

MR. CLARKE: In what sense?

DR. WEIR: Because I'm not going to base any of my calculations on this NRC report.

MR. CLARKE: As far as multiple contributors, and I may have asked this before, you have done it for two or three possible contributors in this case?

DR. WEIR: That is right. As I said, the evidence contains information of more than one contributor. It contains no information whatever of more than two contributors. I know that there would be interest in there being three contributors to some of the stains. The evidence points to two contributors. I have chosen to do calculations as if there were three contributors in addition.

MR. CLARKE: Your technique allows you the ability to do that for more than two, three, four, et cetera?

DR. WEIR: Certainly. The calculations get more lengthy, but no more complicated.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Your Honor, I would like to move in these three remaining--actually I think it is four remaining exhibits, again for purposes of this hearing only, and I think that would be 408 as well as 408-A, 409 and 410.

MR. THOMPSON: No objection.

THE COURT: All right. They will be received.

(Peo's 408 thru 410 = in evid)

MR. CLARKE: I have no further questions.

THE COURT: All right. Let's take a ten-minute break and we will start with the cross-examination. All right, doctor. You can step down. Thank you.

(Recess.)

(The Defendant not being present.)

THE COURT: Back on the record in the Simpson matter. Mr. Simpson is not present, however counsel, Mr. Scheck, did you wish to address the Court on that issue?

MR. SCHECK: Your Honor, Mr. Simpson has asked me to waive his presence for purposes of the remainder of the hearing so that he can consult with co-counsel and work on other matters.

THE COURT: All right. Presently co-counsel are in the lock-up?

MR. SCHECK: Yes.

THE COURT: Consulting with Mr. Simpson?

MR. SCHECK: Yes.

THE COURT: And you represent to the Court as an Officer of the Court that you have your client's permission to waive his presence for the remainder of this hearing, correct?

MR. SCHECK: Yes.

THE COURT: All right. The Court will accept the waiver. All right. Dr. Weir, would you resume the witness stand, please. All right. Mr. Thompson, you may commence your cross-examination.

MR. THOMPSON: Thank you, your Honor.

CROSS-EXAMINATION BY MR. THOMPSON

MR. THOMPSON: Good morning, Dr. Weir.

DR. WEIR: Good morning.

MR. THOMPSON: Now, the section of the National Research Council report that we are talking about on page 59 has the following language. It says: "If a suspect's pattern is found within the mixed pattern, the appropriate frequency to assign to such a match is the sum of the frequencies of all genotypes that are contained within."

DR. WEIR: Yes.

MR. THOMPSON: Now, can you tell us, Dr. Weir, what is a genotype?

DR. WEIR: Oh, a genotype is a description of the genes or the alleles of an individual.

MR. THOMPSON: Of an individual?

DR. WEIR: Yes.

MR. THOMPSON: Not two individuals?

DR. WEIR: In usual language, yes.

MR. THOMPSON: And the term "Genotype" doesn't refer to the genetic characteristics of three individuals either, does it?

DR. WEIR: Not generally, no.

MR. THOMPSON: No. So the term "Genotype" refers to the genetic characteristics of a single individual; isn't that right?

DR. WEIR: That's right, but of course the language of this report, if we stuck to that, that would make no sense, so I interpret "Genotypes" here to mean genotypes to the contributors of the mixed stain.

MR. THOMPSON: All right.

DR. WEIR: It would make no sense otherwise.

MR. THOMPSON: But that is your interpretation; that is not what the National Research Council says, is it?

DR. WEIR: The National Research Council is reporting mixtures. We couldn't do a mixture analysis ignoring the fact that it is a mixture, so I take this as just loose language.

MR. THOMPSON: Could I have chart 410 placed on the elmo, please.

MR. THOMPSON: Dr. Weir, I would like you to take a look at this chart that has previously been marked chart 410 that has been prepared by the Defense, and I think you will see on this chart there is a list of numbers that are summed.

DR. WEIR: Yes.

MR. THOMPSON: Can you tell me is each of those numbers the frequency of a genotype?

DR. WEIR: Yes, I believe so.

MR. THOMPSON: All right. Now, let's take a look at chart no. 409, please. Now, Dr. Weir, are you looking at chart 409 which was previously prepared by the Prosecution?

DR. WEIR: Yes, I am.

MR. THOMPSON: All right. Now, I would like you to look at this--the number that is listed under the column headed "Frequency," this number .15 percent.

DR. WEIR: Yes.

MR. THOMPSON: Dr. Weir, is that the frequency of a genotype?

DR. WEIR: It is the frequency of genotypes of the contributors to the mixed stain.

MR. THOMPSON: But it is not the frequency of a genotype is it?

DR. WEIR: Certainly not. That would be quite inappropriate.

MR. THOMPSON: And what it actually is, is the product of the frequencies of two genos, isn't it?

DR. WEIR: Certainly, certainly.

MR. THOMPSON: And the reason that that number is so small, that is the .15 percent, is that you have taken two--two numbers and multiplied them together, taken two percentages and multiplied them together to get a smaller percentage? Isn't what you have done?

DR. WEIR: The frequency is the product, yes.

MR. THOMPSON: All right. Now, does the National Research Council report say anything about taking the product of two frequencies before you sum up these--

DR. WEIR: No, no, but that is implied by the language. The frequency of the genotypes couldn't mean anything else.

MR. THOMPSON: So your conclusion is that it couldn't mean anything else? That is the way you read it?

DR. WEIR: Certainly we are talking about a mixture. To talk about an analysis of a mixture ignoring the mixtures would make no sense and I don't believe that that was what was intended.

MR. THOMPSON: Is that what you always believed--

DR. WEIR: The--

MR. THOMPSON: --the NRC report meant or is this a new interpretation you arrived at only recently?

DR. WEIR: I had never thought about this until quite recently. I have always done it the correct way.

MR. THOMPSON: Well, what perplexes me, Dr. Weir, is that you have prepared several different versions of a report in this case.

DR. WEIR: Yes, I have, yes.

MR. CLARKE: Excuse me. Argumentative, the form of the question.

THE COURT: Overruled. Proceed.

MR. THOMPSON: All right.

MR. THOMPSON: We have one report from you that is co-authored with Mr. Buckleton?

DR. WEIR: Dr. Buckleton.

MR. THOMPSON: Dr. Buckleton. That is dated May 11th?

DR. WEIR: Yes.

MR. THOMPSON: And in the report with Dr. Buckleton you use likelihood ratios, a different kind of statistics--

DR. WEIR: No, not a different kind of statistic.

MR. THOMPSON: All right. Let me rephrase the question. You use likelihood ratios to provide a measure to the extent of which the evidence favors one scenario over another; is that correct?

DR. WEIR: The complete analysis must be in that framework. Of course a part of that calculation is the part where we are discussing at this point. This is the first part and in the complete and appropriate analysis.

MR. THOMPSON: All right. And then on May 31st you produced another report labeled a draft. This one single page authored by yourself; is that right?

DR. WEIR: If you say, yes, uh-huh.

MR. THOMPSON: All right. And this report also used likelihood ratios to characterize the value of mixtures?

DR. WEIR: Oh, as does my current report. The phrasing is still there, but my current report is focusing on this component of the likelihood ratio.

MR. THOMPSON: Uh-huh. And in fact the report says likelihood ratios are essential in interpreting the evidentiary value of mixed stains, doesn't it?

DR. WEIR: Yes. That is true, yes, whether that is single or mixed and of course we have had them throughout this case. Every number that is on the board is in fact giving us a likelihood ratio. The numbers I have discussed this morning for the mixture stains are giving us likelihood ratios by inverting them.

MR. THOMPSON: Likelihood ratios for distinguishing between what hypothesis, Dr. Weir?

DR. WEIR: The hypothesis of the two contributors being known versus them both being unknown.

MR. THOMPSON: Okay. Are you planning to tell the jury that those frequency numbers are in fact likelihood ratios?

DR. WEIR: If I am asked and under oath I would have no choice but to say of course they are.

MR. THOMPSON: Okay. Then there was another report that was produced just this week with the date of June 20th. Are you familiar with that? That was June 20th is actually Tuesday.

DR. WEIR: Yes.

MR. THOMPSON: All right.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: There is a June 20th report. On Tuesday we got a report. This report also used likelihood ratios; is that right?

DR. WEIR: Well, all the reports have likelihood ratio language in them. All the reports also calculate frequencies of multiple contributors to a mixed stain. I'm not sure I understand what the distinction is you are trying to make.

MR. THOMPSON: Okay. And in the report of June 20th you are quite critical of the National Research Council's method for dealing with mixtures, are you not?

DR. WEIR: If it was interpreted as a single mix, yes, a single contributor, I would be, yes.

MR. THOMPSON: Right. In fact, I see the sentence that reads: "In particular the method of assigning frequencies for mixtures suggested by the NRC report ignores the type of the profile of the person or people of interest and therefore has no probative value." Do you remember that sentence being in your report?

DR. WEIR: Yes, but that is a separate issue of course that is talking about the enumerator of the likelihood ratio and that criticism of course is still with us. The--I think we are trying to confuse two issues here. Whether or not we give likelihood ratios is in a sense immaterial, but if we were to, we are comparing frequencies under two scenarios. For example, contributors being known or not known. There are two things. I believe if you merely give the bottom line, you are leaving out the alternative, so regardless of how you calculate the bottom line.

MR. THOMPSON: Right.

DR. WEIR: Yeah.

MR. THOMPSON: Isn't it true, Dr. Weir, that when you were criticizing the National Research Council report in your--in your June 20th report--

DR. WEIR: Yes.

MR. THOMPSON: --you were referring to the interpretation of the National Research Council method for mixtures that has been advocated by the Defense in this hearing?

DR. WEIR: I don't think so. My criticisms are whether or not they--we are comparing frequencies under alternative scenarios.

MR. THOMPSON: All right. And--

(Discussion held off the record between the Deputy District Attorneys.)

MR. THOMPSON: Just one moment, your Honor.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: Dr. Weir, could you pick up exhibit 408, which is your report of June 21st?

DR. WEIR: Yes, I'm just--I'm just flicking through pages here. Maybe could you help me and refer me to the page.

MR. THOMPSON: If you could direct--direct your attention to page 10.

DR. WEIR: All right.

MR. THOMPSON: The paragraph labeled "Mixed stains." And the--

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: Your Honor, do you have a copy of this?

THE COURT: Yes, I do.

MR. THOMPSON: Okay.

MR. THOMPSON: Now, am I right that the third sentence of that paragraph reads: "Simply adding the frequencies of all possible contributors to the mixture (NRC 1992) Ignores the essential nature of a mixture"?

DR. WEIR: That is what it says, right.

MR. THOMPSON: Now, when you wrote this sentence you were assuming, were you not, that the NRC approach involved simply adding the frequency of all possible contributors to a mixture, weren't you?

DR. WEIR: I think that sentence would--would criticize it if that was the intention. I think, though--

MR. THOMPSON: But isn't it true that--

MR. CLARKE: May the witness finish his answer, please?

THE COURT: Yes.

DR. WEIR: I think, on reflection, I was being unfair to the NRC. I don't believe they would have meant a single contributor. That would have made no sense.

MR. THOMPSON: All right. And so the--the interpretation of the NRC report which is reflected in the report of June 21st is not the interpretation that you now would adopt? Is that what you are saying?

DR. WEIR: We are getting hung up with words here. The correct interpretation of any evidentiary stain is to compare the frequencies and their alternative scenarios. It's simple in a single stain because the likely--the chance that the frequency of the stain under one scenario is just one, it is a hundred percent, so in essence the frequency is hidden from us. And then we calculate the frequency for the unknown and we don't run into any need to examine what we are doing. We can--we can and we have seen the possibility of sloppy thinking, because we have ignored the alternative. For the mixtures we need to consider both alternatives.

MR. THOMPSON: Now--

DR. WEIR: However, one of those alternatives involves multiple unknown contributors and there is only one possible way for calculating the frequency of multiple contributors, regardless of what the NRC said or meant to say or is purported to have said. It is not a question of interpretation. Finally, it is a question of how do you calculate the frequency of multiple contributors, and there is only one way to do that.

MR. THOMPSON: And you are not relying on the NRC report for the basis for your methods in any case, are you?

DR. WEIR: No. Correct.

MR. THOMPSON: You said you were relying on an article published by our friend Ian Evett?

DR. WEIR: That is my published reliance, although I'm relying on my own expertise.

MR. THOMPSON: And when was this article by Dr. Evett and his colleagues published?

DR. WEIR: 1991.

MR. THOMPSON: Wasn't it published in 1990?

DR. WEIR: I thought it was `91. I may be wrong.

MR. THOMPSON: My copy says 1990.

DR. WEIR: I have misspoken.

MR. THOMPSON: I am reading wrong. You are right, so 1991.

MR. THOMPSON: When was the National Research Council published?

DR. WEIR: The report was published in 1990. You have hit on the points. Here is a report which ignores the literature. It is amazing to me that in this and many other instances they have chosen to ignore the correct procedures. Why they didn't cite this paper, I don't know.

MR. THOMPSON: Right. So the very paper on which you were relying was simply ignored by the National Research Council?

DR. WEIR: The paper on which I have cited. I don't rely on that paper.

MR. THOMPSON: All right. All right. Now, this paper by Dr. Evett, the method that it describes is for characterizing mixtures in situations where we know how many contributors there are, is it not?

DR. WEIR: Yes. I think so. That is--well, I believe all the--all our calculations assume a number of contributors, yes.

MR. THOMPSON: Right. Now, but in this case we cannot tell by looking at most of the mixtures how many contributors there are, can we?

DR. WEIR: Oh, I think the evidence is overwhelming that there were two contributors when we have seven RFLP loci and seven PCR loci and I have at most four alleles. I can't imagine any other possible interpretation.

MR. THOMPSON: So does this evidence tell you--can you tell just by looking at the genetic evidence the probability that it is two persons who contributed versus three?

DR. WEIR: I wouldn't attach a probability to that, no.

MR. THOMPSON: You could not attach a probability to it, could you?

DR. WEIR: I'm not sure about that. I would work--yes, I could work out the probability of that event conditional on each of those two assumptions.

MR. THOMPSON: Right. But in order to--in order for you to compute the probability of getting these mixtures, assuming that there are either two people or three people, you would have to make some assumptions about the a priori probability of there being two or three contributors, wouldn't you?

DR. WEIR: No. Well, excuse me. To give a posterior probability of the time analysis, I think the analogy is flawed; however, it ignores what we have been doing throughout the whole trial for a single stain. We compute the frequency of single contributors because all the evidence suggests there is a single contributor. No one has ever suggested we should compute the evidence of a single stain as though there were multiple contributors. All the evidence suggests there are not multiple contributors. I find the argument somewhat vacuous.

MR. THOMPSON: But the answer to the question I just asked you is yes, is it not?

DR. WEIR: You need to rephrase the question.

MR. THOMPSON: Okay. The question is, in order for you to compute the probability of getting these mixtures, assuming there are either two or three people, would you have to make some assumption about the prior probability of there being two or three people?

DR. WEIR: So my answer is certainly no to that. Given--you read that again, you will see that is a conditional probability you have just asked me about.

MR. THOMPSON: All right. Suppose I framed it as a posterior probability. In order to get the posterior probability being two people versus three people--by posterior probability we mean the ultimate issue of there being two or three--we have to make some assumptions about the likelihood there are two or three there initially before we look at the evidence?

DR. WEIR: We are not making posterior probabilities about anything in this trial, single stains or mixture stains or any other issue before us. We have no priors to put in to end up with posteriors.

MR. THOMPSON: When you say the evidence is overwhelmingly in favor of there being two contributors to a stain--

DR. WEIR: Yes, there is. There are seven RFLP loci, each of which has at most four alleles. There are seven PCR loci--well, depending on the stain--each of which has at most four alleles. How could it possibly be three contributors? It is beyond imagination.

MR. THOMPSON: But in order to draw conclusions about the relative likelihood, you have to make some assumptions drawing on other evidence, don't you?

DR. WEIR: The assumption I choose to do these frequencies is that there are either two or three contributors based on the evidence. There are two contributors. I have chosen to do it for three. I could have done it for four. I see no point.

MR. THOMPSON: What about stain no. 29 where we are talking about the stain on the steering wheel?

DR. WEIR: Uh-huh.

MR. THOMPSON: Can you tell by looking at that stain whether there are two or three contributors?

DR. WEIR: I can see no evidence there which suggests three, but you will need to give me some time to look at the RFLPs. They are there. So we have only the PCRs and there are three alleles at all those loci. That is six loci. Excuse me. Six loci have three alleles. There is nothing there which would suggest three contributors.

MR. THOMPSON: Let's assume--let's assume there was no RFLP results on stain no. 29.

DR. WEIR: Well, that is what the chart says.

MR. THOMPSON: All right. And we see alleles.

DR. WEIR: Yes.

MR. THOMPSON: All right. And you say--but you can't determine, based on those three alleles, whether there are two people or three people there, can you?

DR. WEIR: That is--that is a foolish question in the sense that the evidence--

MR. THOMPSON: Will you answer it, please, sir.

THE COURT: Wait, wait, wait, wait. Counsel, he gets to answer the question.

MR. THOMPSON: All right.

DR. WEIR: There are three alleles. We know that each person has two. People may share an allele, so two people may have two alleles, one of which is shared, which would end up with three. I can't imagine why you would invoke three people when there are only three alleles. There may be three people. There may be six people. There is nothing there which would require me to assume more than two.

MR. THOMPSON: All right. And so based on the genetic evidence alone there is no basis for determining whether there is two or three or four?

DR. WEIR: The evidence is that there are only at most four with here only three alleles. The polymarker had four--I think--I would have to look. I think only three alleles. So the evidence says there are three alleles. That means more than one person. It does not say anything about there being three people.

MR. THOMPSON: Uh-huh. And so you can't tell whether there are two versus three based on this evidence alone?

DR. WEIR: I can't tell for certainly.

THE COURT: All right. Mr. Thompson, you have to understand I'm not making this determination in a vacuum. I assume that we have two victims at the crime scene. I'm taking into consideration that there appears to be only one set of footprints. I mean, this is not a determination made in a vacuum. Proceed. Proceed.

MR. THOMPSON: All right. Just one moment.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: Now, Dr. Weir, the Defense in this case has taken the position that numbers need to be presented to characterize the value of evidence showing consistency between the DNA profile of an individual and a mixed stain. Do you agree that numbers are necessary to show the value of such evidence?

DR. WEIR: My opinion has changed. I think if you had asked me two years ago, I would have agreed. We are now at the point that the numbers are beyond belief. We have got so much genetic evidence, there are so many loci types, some of these items have 11 RFLP loci and 7 PCR loci. There is no number that makes any sense, that is beyond the belief--beyond the experience of anyone to try and interpret. I believe we have passed beyond the point where we should run around trying to make up numbers acceptable to everybody. The evidence of a match at this many loci is compelling, so I think once when we got to the point we are presently at, 7 RFLP loci, 7 PCR loci, the numbers are not necessary.

MR. THOMPSON: What about for evidence like that on item 29? Would the comments you just made apply to that stain as well?

DR. WEIR: Well, my comments apply to seven of each type. On item 29 there are many fewer loci scored.

MR. THOMPSON: Yes.

DR. WEIR: The events of a match is not so astonishing and it is indeed helpful to have a number.

MR. THOMPSON: And so I believe the intention of the Prosecutors initially was to present no number in connection with the mixed stains but merely to present the profile frequencies of individuals who were being compared to the stain. Would you agree with me that that would be a misleading procedure for characterizing the value of stains like no. 29, 305 and the other Bronco stains?

DR. WEIR: Well, that is--I would need to examine each item separately. It would depend on the number of the loci.

MR. THOMPSON: Let's start with no. 29 then. Do you think it would be misleading just to present the individual profile of individuals being compared to the stains, such as Nicole Brown Simpson, and not compute a special number that refers to the likelihood of her matching with the mixtures?

MR. CLARKE: Objection, irrelevant.

THE COURT: Overruled.

DR. WEIR: It is not misleading, no. The evidence remains that there was a match between the evidence and known sample. That is not misleading to say that.

MR. THOMPSON: Well--

DR. WEIR: It is helpful to interpret that evidence to attach numbers under alternative scenarios.

MR. THOMPSON: Uh-huh, but the question is would it be misleading to present just Nicole Brown's individual profile frequency and not do some computation regarding the likelihood of her matching a mixture?

DR. WEIR: That is not the question you asked me. I don't know why we are computing Nicole Brown's profile frequency. Why are we doing that?

MR. THOMPSON: Well, let me ask you the question this way: Would it be misleading to do what the Prosecutors were initially advocating in this case, which is to present no number on the mixture, per se, but just to present the profile frequencies of individuals who were being compared to the mixture? Would that be misleading?

MR. CLARKE: Objection, irrelevant, also assumes facts not in evidence.

THE COURT: Overruled.

DR. WEIR: I don't know how to answer that. I'm not--I don't understand the question. Umm--there was a mixture. You either attach a number to it or you don't, but there was the evidence of a mixture. You either attach a number or not. It is not misleading not to attach a number. It is helpful to attach a number. Calculating one of the--one of the matching known frequencies is beside the point. It has nothing to do with the mixture, so I don't understand.

MR. THOMPSON: Well, let's suppose that the frequency of Nicole Brown's DNA profile on DQ-Alpha and the polymarker systems ranged from 1 in 2500 to 1 in 26,000. Do you understand that assumption, a relatively rare profile across--across DQ-Alpha and the polymarker loci?

DR. WEIR: The frequency of people who would match that profile?

MR. THOMPSON: Yes.

DR. WEIR: That that is a range of numbers?

MR. THOMPSON: Right. Do you think it would be misleading for the Prosecutors to give a number like 1 in 26,000 to Nicole Brown's profile and then to say through testimony that Nicole Brown Simpson's profile is consistent with stain 29 and give no further number?

DR. WEIR: That doesn't--that doesn't tell all the information, I agree, yes.

MR. THOMPSON: So you agree that that would be misleading?

DR. WEIR: I'm not sure I would say misleading. It doesn't--it reflects a fallacy of trying to give any of this evidence outside the appropriate framework. Unless you give frequencies attached to items of evidence, and their alternative scenarios, you cannot make a determination which in fact was the most likely scenario. So anytime you try and concoct these methods of presenting evidence outside the appropriate way of doing it, you will run into problems. I mean, you or anybody.

MR. THOMPSON: Uh-huh. And by your calculations, the probability that two randomly chosen individuals, one Caucasian and one African American, would--would match with stain no. 29 is 1 in 71; isn't that right.

DR. WEIR: That's true?

MR. THOMPSON: Right? Which is considerably higher than Nicole Brown Simpson's profile frequency, isn't it?

DR. WEIR: Yes.

MR. THOMPSON: All right. All right. And so it would be incorrect, wouldn't it, to use Nicole Brown's profile frequency as an index of the value of the fact that she was consistent with that stain, wouldn't it?

DR. WEIR: If you state it like that, that sounds incorrect to me, yes.

MR. THOMPSON: All right. Okay. Now, so it sounds like the real--the real issue here is over methods for doing these mixture calculations; isn't that--and we basically agree a number is needed to characterize a mixture, and our disagreement is how to compute that?

DR. WEIR: We haven't agreed that the number is needed, no.

MR. THOMPSON: Okay. All right. Would you agree, Dr. Weir, that in order to do the kind of calculations that you are doing on the exhibit currently on the elmo, which I believe is no. 410--

THE COURT: F09.

MR. THOMPSON: 409. In order to do the calculations on chart 409, you need to make certain assumptions?

DR. WEIR: Yes.

MR. THOMPSON: And one assumption you need to make is with regard to the number of contributors to the stain?

DR. WEIR: Yes.

MR. THOMPSON: Now, does that assumption, with regard to the number of contributors, does that assumption have to be made to do the calculations in the manner reflected on chart 410, which is the Defense's approach to the calculation?

DR. WEIR: It doesn't, but that is not a relevant fact. We have no choice. It is not a question of taste or opinion. If we want to estimate the frequency of the contributors to the mixture, we must take account of the number of contributors. I'm not sure how I can say that any more simply. It is not rocket science here.

MR. THOMPSON: Now, another assumption that your approach makes is that all alleles of all contributors can be detected; is that correct?

DR. WEIR: That's true. I have had to assume that I am not an expert in the molecular biology. I take what the forensic scientists approach.

MR. THOMPSON: Does that assumption need to be made to make the calculations reported by the NRC counsel I'm chart?

DR. WEIR: Absolutely. You can't do anything until you have a starting point which is at least found. Now, I will continue, because there are cases where we know there were two contributors, but we see less than four alleles at a locus. It shows up more clearly in the RFLP situation where some of the alleles appear either or hidden or to be not seen.

MR. THOMPSON: Let me direct your attention again to chart number--excuse me, is this 409?

THE COURT: This is 410.

MR. THOMPSON: 410, the Defense chart 410.

MR. THOMPSON: Now, based on the calculations done on this chart, Dr. Weir, would it be correct to say among Caucasians the percentage of people who have genotypes consistent with alleles observed in stain 29 is approximately 45 percent?

DR. WEIR: That is a completely misleading statement and I don't even believe it is true. "Consistent" means you can account for the stain with the people listed. You cannot account for the stain by adding up those single contributors. The first item does not account for alleles 1.2 and 4. If you--that statement you made, and I listened very carefully, I think comes very close to being dishonest.

MR. THOMPSON: Is it--is it incorrect scientifically, doctor?

DR. WEIR: Yes, it is incorrect scientifically because it is not--I take "Consistent" to mean explaining the data.

MR. THOMPSON: All right. Let's--let's instead ask the question this way: Would it be correct to say that among Caucasians the percentage of people who have genotypes that would be included in the stain observed in stain 29--included in the alleles observed in stain 29 is approximately--let me--let me start again. Based on this chart, no. 410, would it be correct to say that among Caucasians the percentage of people who have genotypes that would be included in the set of alleles observed in stain 29 is approximately 45 percent?

DR. WEIR: That statement is correct, but it is misleading in the sense it gives us no basis for interpreting the evidentiary value of this mixed stain. It is a correct statement, but I don't think it has any relevance.

MR. THOMPSON: So it is scientifically correct, but it is misleading? Is that your position?

DR. WEIR: Absolutely.

MR. THOMPSON: Now, when you say "Misleading," what you mean, I take it, is that you think it might give the jurors the wrong idea about how to think about this evidence?

DR. WEIR: I mean it is misleading in that it gives us no basis for interpreting the evidence of matching between known contributors and a mixed stain. It gives us no foundation to making--drawing any conclusions numerically.

MR. THOMPSON: Well, suppose that I, upon learning that Nicole Brown Simpson's genotypes are consistent with those found in stain no. 29, was curious to know what percentage of people in the population have genotypes consistent with those in stain 29. Isn't 45 percent the number that I need to know to respond to that--

DR. WEIR: You might want to know that, but that is not a question that we would need to be addressing here. It is not relevant. I mean that is an interesting question, I suppose, but why would you even ask it? The evidence is that there are two known contributors. They match the mixed stain. Is that--how often does that happen coincidentally?

MR. THOMPSON: All right. So your argument--

DR. WEIR: If you want to talk about Nicole Simpson, you need to consider the scenario of Nicole Simpson versus another unknown versus two unknowns.

MR. THOMPSON: Okay. So if I understand your argument correctly, you are arguing that the way the jury should think about the problem or the way anyone else should think about the problem is in terms of the likelihood of getting a pair of individuals that would match rather than just a single individual who would match? Is that your position?

DR. WEIR: Yes, I've been saying that for the last two hours.

MR. THOMPSON: All right. But, doctor, isn't that just an argument you are making?

DR. WEIR: Excuse me. I recent that completely. That is not just an argument. That is the only conceivable way of attaching a frequency to the match of two known contributors in a mixed stain. How could you possibly do anything else? And to characterize it as just an argument I think is unfortunate.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: Doctor, you keep using this phrase "Known contributors," as in two known contributors.

DR. WEIR: Yes, I'm talking about the people not excluded. The people whose profiles we know.

MR. THOMPSON: All right. But we don't--we don't know who the contributors are of any stains in this case based on the genetic evidence alone, do we?

DR. WEIR: The known samples, yes.

MR. THOMPSON: All right. So those are assumptions? All right.

DR. WEIR: Well, that is what we have to--what the jury eventually will have to decide, are these two known people the contributors or are two other people so we are comparing those two known people with two unknown people. So that is not an assumption; that is what the trial is about, to make decisions on the origins of these stains.

MR. THOMPSON: All right. To answer questions about the number of people in the population or in some population that would have genotypes that would be included in a mixture, such as no. 29, is it necessary to make assumptions about whether all alleles of all contributors to the mixture have been observed?

THE COURT: I thought we asked that question already.

DR. WEIR: I have answered and on the RFLPs we don't--we--my calculations show that we allow for unseen bands.

MR. THOMPSON: Well, what about--let me restate the question and I believe it is a different question this time, your Honor.

MR. THOMPSON: If--if the question that I want to have answered is--is what percentage of the population would have genotypes consistent with the observed alleles, isn't it true that I don't have to make any assumptions at all about whether all alleles of all contributors have been observed?

DR. WEIR: I think I understand the question. The answer is yes and that is what I have done. My calculations assume these are the only alleles in the--in the mixed stain.

MR. THOMPSON: All right. So--

DR. WEIR: For the PCR.

MR. THOMPSON: But to do it--to do it the way reflected on the Defense chart where you are simply summing, and--and asking the question what percentage of the population has genotypes consistent with the observed alleles, we need make no assumption about whether all alleles have been observed; isn't that correct?

DR. WEIR: You don't need to make any assumptions but then you don't end up with a meaningful answer.

MR. THOMPSON: Right. Whereas under your approach assumptions do need to be made about whether or not all alleles of all contributors have been observed?

DR. WEIR: That is correct for the mixture and the single stains, is that the foundation of the whole forensic uses of DNA we have alleles seen, we calculate frequencies for them. If one was to object that that assumption, one might as well hang up their hat and go home because none of this would be possible. Of course we assume the number of contributors is consistent with the evidence.

MR. THOMPSON: Okay.

DR. WEIR: Either one or two or however many.

MR. THOMPSON: Okay. So there are two assumptions that are being made under your approach which need not be made--

DR. WEIR: I object to you characterizing it as my approach.

MR. THOMPSON: Under the approach that you have presented in your report.

DR. WEIR: Thank you.

MR. THOMPSON: There are two assumptions being made there that need not be made to use the kind of numbers that are presented in the Defense chart, one being the number of contributors and the other being the connection between the observed alleles and the contributor's allele?

DR. WEIR: For both mixed and single stains, yes.

MR. THOMPSON: Yes. Okay. Now, doctor your expertise is in drawing statistical inferences from genetic data; is that correct?

DR. WEIR: Yes.

MR. THOMPSON: One of the issues that statisticians like yourself are most concerned with is what is and isn't a logical from a scientific finding?

DR. WEIR: Yes.

MR. THOMPSON: And I often hear statisticians use the term "Permissible" as in this is a permissible--

DR. WEIR: Excuse me, I didn't hear the word.

MR. THOMPSON: Permissible, as in this is a permissible inference or this is not a permissible inference. Is that a common expression in your field?

DR. WEIR: It is not one I have heard before.

MR. THOMPSON: Oh, okay. What expression would you use to talk about an inference which is illogical and inappropriate?

DR. WEIR: I call it wrong, I suppose.

MR. THOMPSON: Wrong. Okay. Now, I gather when statisticians say an inference is wrong, it means it is illogical or fails to follow from the premises?

DR. WEIR: I imagine they would, yes.

MR. THOMPSON: Okay. And the question about which inferences are correct and incorrect, wrong or right, when interpreting scientific data, is one of the major questions that statisticians concern themselves with?

DR. WEIR: I don't see statistics as being consumed with giving right or wrong answers. Statistics is concerned with teasing out the information and sets of data, how results are often traced in terms of estimates or results of hypothesis testing. Statistics is not a black and white, right or wrong, yes or no kind of a science. It is a science of interpreting data, so I'm having trouble with understanding your characterization of statistics.

MR. THOMPSON: But part of what statisticians do is determine what is and what is not a reasonable statistical inference from data; isn't that correct?

THE COURT: Counsel, the issue is which of these two methodologies am I going to adopt for use in front of this jury.

MR. THOMPSON: Uh-huh.

THE COURT: Which makes sense both in terms of the science that produces these results and the math that is applied to it.

MR. THOMPSON: Yeah.

THE COURT: So--

MR. THOMPSON: These questions are foundational to my next line.

THE COURT: Well--

MR. THOMPSON: I will proceed quickly.

MR. THOMPSON: Dr. Weir, when drawing conclusions from a scientific tests, should an expert witness in a criminal case rely only on the scientific data or is it permissible for the expert to take into account other evidence in the case?

DR. WEIR: These--this is such a general question I don't understand it. I will say yes, but I'm not fully understanding what you are meaning.

MR. THOMPSON: Well, suppose, for example, that an expert sees a scientific test result that has two possible interpretations and one interpretation is consistent with guilt and the other interpretation is consistent with innocence. Would it be permissible for the expert to consider the overall strength of the Prosecution's case when deciding which scientific interpretation was correct?

MR. CLARKE: Objection, irrelevant to this hearing.

THE COURT: Sustained.

MR. THOMPSON: Would it be permissible for a statistician, in determining which statistical procedure is appropriate or inappropriate, to take into account the strength of the Prosecution's case?

MR. CLARKE: Same objection.

THE COURT: Sustained.

MR. THOMPSON: Dr. Weir, have you heard the term "Bootstrapping" when that term is used to refer to allowing one set of evidence to influence a supposedly independent judgment?

MR. CLARKE: Same objection.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: Now. Yeah. Have you heard the term "Bootstrapping" used in the scientific arena, as opposed to the legal arena?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. WEIR: The word "Bootstrapping" is in my report.

MR. THOMPSON: Right. Now, I know your report refers to a statistical procedure known as bootstrapping. Have you heard an additional meaning of that term "Bootstrapping" in scientific circles?

DR. WEIR: No.

MR. THOMPSON: Meaning to draw--draw conclusions on--on--

THE COURT: Counsel, this is not real helpful to me.

MR. THOMPSON: Well, I--

THE COURT: It is really not. It is a complete waste of my time so far, this whole discussion about bootstrapping.

MR. THOMPSON: I was. I think I can tie it in, your Honor, if you will give me some leeway.

THE COURT: No.

MR. THOMPSON: All right.

THE COURT: Proceed.

MR. THOMPSON: Now, Dr. Weir, in order to compute the mixture statistics using your method--

DR. WEIR: And it is not my method.

MR. THOMPSON: Well, using the method that you are advocating, you need to make assumptions, and would you agree with me that the numbers that are produced by your method vary depending on the assumptions that you make?

DR. WEIR: You will have to be specific. I don't know what you mean.

MR. THOMPSON: For example, the numbers that you produce would vary depending on whether you assume there were two contributors or three contributors?

DR. WEIR: My report shows two tables with different numbers under those two conditions.

MR. THOMPSON: So--

DR. WEIR: I also have tables for single stains where I have assumed a single contributor. I have answered that several times.

MR. THOMPSON: And so the answer is yes?

DR. WEIR: Yes.

MR. THOMPSON: All right. And the numbers that you compute would also vary, depending on whether you assumed that all alleles of all contributors are being observed in the stain?

DR. WEIR: The answers of all the analyses in this trial depend on that assumption.

MR. THOMPSON: Okay. And so under some assumptions you get numbers that are much bigger and more impressive than under other assumptions, don't you?

DR. WEIR: I don't understand the question. You will need to be specific.

MR. THOMPSON: And have you noticed, Dr. Weir, that when you compute numbers under assumptions that are consistent with the Prosecution's theory of the case that you will get numbers that are larger and more supportive of the Prosecution's case?

MR. CLARKE: Objection, argumentative and also irrelevant.

THE COURT: Sustained.

MR. THOMPSON: Is it the case, Dr. Weir, that if you compute numbers under assumptions consistent with the Prosecution's theory of the case, that the numbers that are produced by the method you are advocating are more supportive of the Prosecution's theory of the case?

MR. CLARKE: Same objection.

THE COURT: Sustained.

(Discussion held off the record between Defense counsel.)

THE COURT: Mr. Thompson, if it is of any benefit to you, I understand the two assumptions that underlie Dr. Weir's testimony and the calculations that he makes and the fact that you will get different results depending on what the assumptions are. I understand that. I understood that an hour ago.

MR. THOMPSON: Okay. All right.

MR. THOMPSON: Let me ask you a few questions, Dr. Weir, about what your report says concerning item no. 78, and I think if you look--if you look in your report at page 25--

DR. WEIR: Thank you.

THE COURT: Refresh my recollection. Which item was item no. 78?

MR. THOMPSON: Item 78 was a stain on the bottom of Ronald Goldman's boot.

THE COURT: On the bottom of the sole of his boot.

MR. THOMPSON: It contained a number of alleles which were consistent with Nicole Brown Simpson on RFLP tests, along with a few that were consistent with Ronald Goldman.

MR. THOMPSON: Is that a correct characterization, sir?

DR. WEIR: Excuse me. Did you ask a question?

MR. THOMPSON: Yeah. I was asking you if it is correct to say that item 78, the stain on Mr. Goldman's boot, contains a number of alleles consistent with Nicole Brown Simpson together with a few that are consistent with Ronald Goldman?

DR. WEIR: Yes. If we use the word "Match" I think would be a better word.

MR. THOMPSON: Okay. Mr. Goldman also has a few alleles that are not observed in item 78; is that correct?

DR. WEIR: Yes. This is an MS43 allele not in the mixture and two YNH24 alleles in Goldman's profile not in the mixture.

MR. THOMPSON: Now, I see in your report on page 7 that you say Ronald Goldman is not excluded from that stain?

DR. WEIR: That's correct.

MR. THOMPSON: Okay. All right. But Ronald Goldman does have some alleles that are not in the stain, doesn't he?

DR. WEIR: Well, now you are getting into an item which is beyond my expertise and I believe we've had testimony from Cellmark as to the reason they call the matches and non-matches and exclusions. My analysis must start with the forensic scientist's determination and they said there was a failure to exclude based on the molecular biology and the description of the staining patterns which is beyond my expertise to interpret. I will accept their interpretation. I can't do anything unless I have a starting point. The starting point is the determination made by the forensic scientist. Given that starting point, my analysis follows. So whether or not alleles match or not, are found are not, that is where I start.

MR. THOMPSON: Okay. Well, let's start--let's start with your chart on page 25. Would you degree with me that your chart shows Ronald Goldman having some alleles that are not observed in item 78?

DR. WEIR: That's true.

MR. THOMPSON: So would you agree that Cellmark must have assumed that some alleles of some contributors at some loci to item 78 were not observed?

DR. WEIR: I--

MR. CLARKE: Objection, irrelevant.

THE COURT: Overruled.

DR. WEIR: I think I have already said that. My starting point is the determination of non-exclusion. All these other things will follow from that.

MR. THOMPSON: Okay. So this is one of those cases where assumptions about whether all alleles have been observed come into play? Would you agree?

DR. WEIR: I have said that several times repeatedly and I'm going to say it again. Maybe we could start the question. I'm going to take the determination by Cellmark that there were two contributors, neither brown nor Goldman are excluded, and my calculations will proceed from that point. All these other things are details of that statement.

MR. THOMPSON: Now, did you make--when you were doing computations for item 78, did you make the same assumptions with regard to alleles showing up in making your statistical computations that Cellmark made when determining the match?

DR. WEIR: I don't know how else I can say it, I'm sorry. That was the same question as before. Cellmark has determined a match, they have not excluded two people. I start from that and proceed. I don't know how else I'm going to say it.

MR. THOMPSON: All right. And would that--does that mean then, that on those loci where Mr. Goldman's alleles do not show up in the mixtures, you assumed there were missing alleles?

DR. WEIR: That and every other detail. I don't know how else I can say it.

MR. THOMPSON: And on those loci where Mr. Goldman's alleles or those matching--alleles matching Mr. Goldman were found, you assumed there were no missing alleles, didn't you?

DR. WEIR: My assumptions are that Cellmark has declared a match with these two stains, not excluded people. The bands showing in Goldman I'm going to use in my analysis, whether or not they show in the mixtures, because he has not been excluded from the mixture.

MR. THOMPSON: So whether or not you assumed they were missing alleles at a particular locus--

DR. WEIR: I haven't assumed anything. I am taking the analysis presented me from Cellmark.

MR. THOMPSON: Well--

DR. WEIR: The analysis is that there was a mixture consistent with these contributors, Goldman's bands are not showing in the mixture YNH24. That is not my assumption. That is what Cellmark told me their determination was. My analysis reflects that determination. I assume nothing.

MR. THOMPSON: So, for example, on locus G3 you are proceeding, or your analysis proceeds from the premise that there are unseen alleles in the mixture, that there are--not all--not all alleles of all contributors are seen in the mixture, aren't you?

DR. WEIR: I'm still going to say, yes, it is the same question.

MR. THOMPSON: But you are not making that assumption when analyzing locus MS1, aren't you?

MR. CLARKE: Asked and answered.

THE COURT: Overruled.

DR. WEIR: There is no need to. Under the scenario of known contributors we have all bands accounted for. Under the scenario of unknown contributors, we need to work with the four unknowns. We need to look at this entire package. The package is consistent with there being two contributors. I have therefore conducted an analysis on the basis of there being two unknown contributors, which would result in those four alleles at MS1.

MR. THOMPSON: So you made that--you made the assumption of unseen alleles where that was necessary and you didn't make it where it was unnecessary; is that right?

DR. WEIR: I haven't assumed unseen alleles. I say there are alleles I have seen. I'm going to assume there were two contributors. I'm going to compute from two contributors.

MR. THOMPSON: Whether your calculations proceeded on the basis that there were missing alleles or not at a particular locus depended entirely on whether that assumption was necessary to make Mr. Goldman match; isn't that true?

DR. WEIR: I don't believe so. My calculations are for two unknown contributors.

MR. THOMPSON: What is your--

DR. WEIR: My calculations have nothing to do with matching. That is the top line of the likelihood ratio. I'm doing two unknown contributors. Two unknown contributors. How do two unknown contributors give those two alleles?

MR. THOMPSON: What is your independent scientific basis for assuming that there were missing alleles at YNH24, for example, but not at MS1?

MR. CLARKE: Objection, asked and answered.

THE COURT: Overruled.

DR. WEIR: I have no outside evidence other than what Cellmark told me. All of my analyses are based on what the forensic scientists have told me. If they told me this, then I will proceed accordingly. It is beyond my expertise to do otherwise.

MR. THOMPSON: And had they assumed--had they made the opposite assumption, for example, assuming there were missing alleles at MS1, but not at YNH24, Mr. Goldman would have been excluded, wouldn't he?

MR. CLARKE: Objection, irrelevant to this hearing.

THE COURT: Sustained.

MR. THOMPSON: Dr. Weir, isn't your logic in drawing conclusions from item 78 circular, in that you are basing your conclusions on premises that are consistent with the Prosecution's theory of the case?

DR. WEIR: Not--

THE COURT: Sustained.

MR. THOMPSON: Now, Dr. Weir, in your report you mention hypotheses that can be tested by the data and you label them c and c prime. Is it called c prime when you put--

DR. WEIR: C--the word c is abbreviation for contact.

MR. THOMPSON: Contact.

DR. WEIR: Contact between the known person and the location of the evidentiary stain. We can say hypothesis or scenario. I'm not sure what the best word is. I think I would use them interchangeably.

MR. THOMPSON: Okay. And so your report suggests that two hypothesis that are to be distinguished by the genetic data are contact and no contact?

DR. WEIR: I think that is the best term, yes.

MR. THOMPSON: All right. What is does the term "No contact" mean?

DR. WEIR: How else can I say it? Not having had contact.

MR. THOMPSON: Okay. And so, for example, with regard to stain 29, if we were interested in whether Nicole--Nicole Brown Simpson's blood was in that stain on the Bronco steering wheel, a no contact would mean known of her blood had gotten into the Bronco? Is that what--into that stain. Is that what that would mean?

DR. WEIR: I'm not sure--I'm not sure. We need to be careful. The contact there would be between Nicole Brown Simpson and the steering wheel. Somehow under that scenario her blood went from her body to the steering wheel. That is contact. It not might not mean with her physical self, but some means of contacting her blood--contact of her blood with the steering wheel, whatever the agent was for making that contact.

MR. THOMPSON: And--and are you--are you planning to testify that your frequencies represent the probability of this evidence under the assumption of no contact?

DR. WEIR: All the numbers on this chart are frequencies and frequency and probability I use interchangeably. All these numbers we've held in the entire case are the probabilities of the evidence under the situation of no contact. In other words, a random person. Someone other than the known, than the stated person, having contributed that.

MR. THOMPSON: Are you assuming, Dr. Weir, that a coincidental match is the only way in which the evidence we have observed can arise under the--under the hypothesis of no contact?

DR. WEIR: I have not said that here or anywhere else, no.

MR. THOMPSON: So you are assuming that there other ways that this evidence could arise that are not reflected in your numbers?

DR. WEIR: I'm not assuming anything. I have made some calculations accounting for the evidentiary stains from unknown people. I'm saying nothing else.

MR. THOMPSON: Well, you think these frequencies are basically likelihood ratios, don't you?

DR. WEIR: A frequency is the frequency of the evidence given known or unknowns. If you start taking ratios of frequencies--I'm sorry if you don't like the term, but that ratio of frequencies is a likelihood ratio.

MR. THOMPSON: And when you testify that there is--when you put a--when you testify that there is a 1 in 71 chance of observing the pair of contributors--a pair of contributors--well, there is a 1 in 71 chance that a pair of contributors at random could have left the stain on item 29--

DR. WEIR: That is the Prosecutor's fallacy, Mr. Thompson. I am surprised at you.

MR. THOMPSON: Ah, ah, forgive me. It is very easy to fall into.

DR. WEIR: I don't believe it is easy for you to fall into that trap at all and I'm certainly not going to fall into it by you leading me into it.

MR. THOMPSON: I was actually leading you into another trap, sir, but let me proceed. Well, you expressed the term--you used the frequency 1 in 71 in connection with the stain on the steering wheel of the Bronco. Could you explain just exactly what exactly that 1 in 71 means?

DR. WEIR: That is the frequency or probability and I will use them interchangeably. That is the probability of seeing that mixed profile from two unknown contributors of specified ethnic origin.

MR. THOMPSON: Okay. When you compute the probability of seeing that profile under the assumption of no contact, you are assuming that the only way we would see that profile under the assumption of no contact was a coincidental match, aren't you?

DR. WEIR: I don't--don't think that is correct. I've calculated the frequency with which--of getting this profile from two unknown contributors. That actually doesn't say anything about contact or not. It is the contact refers of course to the known people, the people not excluded. You better restate your question I think.

MR. THOMPSON: Well, well, I guess the trouble I'm having is with the two hypothesis of contact, no contact, and your assertion is that the--the statistics that you are presenting give us the conditional probability of this evidence under no contact, isn't that--

DR. WEIR: No contact of the--of the not excluded people, yes.

MR. THOMPSON: Okay. But we could get the observed evidence in a number of ways other than simply the ways taken into account in your frequency calculations, couldn't we?

DR. WEIR: You will have to explain what alternatives you mean.

MR. THOMPSON: Suppose there was tampering with the evidence, for example?

MR. CLARKE: Objection, irrelevant.

THE COURT: Overruled.

DR. WEIR: I--I--I'm very, very careful at the first page of my report to say my entire analysis is concerned with the genetic statistics. It assumes matches when declared to be true. It assumes profiles when declared to be accurate. It is--it would be wrong of me to make statements outside that context.

MR. THOMPSON: But if you are not taking into account anything other than coincidental match frequencies, isn't it also wrong to tell the jury that those frequencies characterize the probability of this evidence under the assumption of no contact?

DR. WEIR: I don't believe so, no, not in the way--not--if--if we are careful, I have been careful in my writing, if we are carefully orally, I don't think there will be any confusion.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: May I have one moment?

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: A few more questions.

MR. THOMPSON: You mentioned in direct examination that you work as a consultant for Cellmark diagnostics?

DR. WEIR: No. I said my university has a contract with Cellmark.

MR. THOMPSON: Okay. Can you describe the nature that have contract?

DR. WEIR: What do you mean?

MR. THOMPSON: How much money does it involve?

DR. WEIR: $8,000 a year.

MR. THOMPSON: $8,000. And the money is granted to the university?

DR. WEIR: The money is paid to the university.

MR. THOMPSON: Is it put in a fund that is at your disposal?

DR. WEIR: I wish.

MR. THOMPSON: Who gets the money?

DR. WEIR: The money goes to the Dean of Agriculture.

MR. THOMPSON: Okay. Do you benefit personally from that in any way?

DR. WEIR: No.

MR. THOMPSON: You also said you are a consultant with a number of other forensic laboratories doing analysis of their databases?

DR. WEIR: No, I didn't say that. If I did, I misspoke. We have similar contractual arrangements with other companies.

MR. THOMPSON: Okay. Now, in all cases where you act as a consultant for these forensic labs, does the money flow to the university or does it flow to you?

DR. WEIR: Under these contracts, the university gets the money, yes.

MR. THOMPSON: Okay. Do you earn income personally for consulting with forensic laboratories?

DR. WEIR: I have, yes, on occasion.

MR. THOMPSON: Okay. Now, which laboratories have you been paid directly by?

DR. WEIR: Received money from?

MR. THOMPSON: Yes.

DR. WEIR: Several state agencies. Not my own state. South Carolina, Minnesota. I'm hoping to get some money from Illinois, although it hasn't come yet. Broward County in Florida.

MR. THOMPSON: Have you money directly from Cellmark under any other circumstances?

DR. WEIR: No. I have visited Cellmark. I think they picked up the fare.

MR. THOMPSON: What about genetic design?

DR. WEIR: Genetic design we have a contractual arrangement. I think I've received a little money from them some years ago, but I'm not sure. Some of that was sort of--they were acting as a conduit from a third party. There may have been a little money from them a couple of years ago.

MR. THOMPSON: Have you received any money from the FBI?

DR. WEIR: No.

MR. THOMPSON: Okay. Now, I see in your grant that you received a grant from the Department of Justice?

DR. WEIR: We received--the university received a grant this year from NIJ, yes.

MR. THOMPSON: What is the amount of that grant. $25,000.

MR. THOMPSON: And do you receive any personal compensation from that grant?

DR. WEIR: I think you know, Dr. Thompson, that would be quite illegal.

MR. THOMPSON: For example, does it pick up summer salary?

DR. WEIR: No. I have a twelve-month salary. I receive nothing directly or indirectly from that grant.

MR. THOMPSON: Does it cover post-doc expenses or give you discretionary funds for your lab?

DR. WEIR: It is contained, as you can see from the application, to compensate a person working for me on these issues.

MR. THOMPSON: Okay. And was the FBI involved in helping you obtain that grant?

DR. WEIR: I wouldn't think so.

MR. THOMPSON: All right.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: When you applied for this grant from the Department of Justice, were you given any promises of access to data from the FBI that other scientists would not have?

DR. WEIR: That is a two-part question. I was promised access to the FBI data. I know nothing about other people.

MR. THOMPSON: Okay. And you are being compensated for your time on this case?

DR. WEIR: No, I'm not. In fact, I'm losing money. The county is not paying enough for my meals each day.

MR. THOMPSON: All right. So--so with regard to the work you did in preparing?

DR. WEIR: With regard from the beginning to the end, there will be not one dollar comes to me.

MR. THOMPSON: Okay.

DR. WEIR: As I said, it is flowing the other way.

MR. THOMPSON: I didn't hear you.

DR. WEIR: The money is flowing the other direction.

MR. THOMPSON: Flowing the other direction. I think that is very public-spirited of you, sir. One moment.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: Okay. No further questions, your Honor.

THE COURT: All right. Thank you, Dr. Weir.

MR. CLARKE: I just would like to mark an article is all.

THE COURT: All right.

MR. CLARKE: The one that the witness referred to.

THE COURT: All right.

REDIRECT EXAMINATION BY MR. CLARKE

MR. CLARKE: Dr. Weir--perhaps this could be marked People's exhibit 411?

THE COURT: Which article is this, Mr. Clarke?

(Peo's 411 for ID = article)

MR. CLARKE: Dr. Weir, showing you what appears to be a publication entitled "A guide to interpreting single locus profiles of DNA mixtures in forensic cases"--

DR. WEIR: Shall I read it?

MR. CLARKE: Would you.

DR. WEIR: Is a paper entitled, "A guide to interpreting single locus profiles of DNA mixtures in forensic cases." The first author's name is Evett, E-V-E-T-T.

MR. CLARKE: Is that the article that you referred to earlier in your testimony as part of the published literature describing the calculation of frequencies for mixed stains?

DR. WEIR: Yes, it is.

MR. CLARKE: Your Honor, I would like to move that exhibit into evidence at this point for this hearing.

THE COURT: Mr. Thompson.

MR. THOMPSON: No objection.

THE COURT: All right. It will be received.

(Peo's 411 = in evid)

MR. CLARKE: Thank you. I have nothing further, your Honor.

THE COURT: All right. Thank you very much, doctor. You may step down.

DR. WEIR: Thank you, sir. Shall I leave these here?

THE COURT: Why don't you take them with you. Mr. Clarke, anything else?

MR. CLARKE: No, thank you, your Honor.

THE COURT: All right. Mr. Thompson.

MR. THOMPSON: I would like to call Dr. Shields.

THE COURT: All right. Dr. Shields.

MR. THOMPSON: Proceed now?

THE COURT: Please. We have the jury coming in at 1:30, so let's go. Do you need to change court reporters? Change paper?

REPORTER OLSON: (Shakes head from side to side.)

MR. THOMPSON: Dr. Shields would like a five-minute break.

THE COURT: Okay. Five minutes.

(At 12:00 P.M. the noon recess was taken until 1:00 P.M. of the same day.)

LOS ANGELES, CALIFORNIA; THURSDAY, JUNE 22, 1995 1:00 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: Good afternoon, counsel. Back on the record in the Simpson matter. You can call your next witness.

MR. COCHRAN: Dr. William Shields.

William Shields (402), called as a witness by the Defendant, pursuant to evidence code section 402, was sworn and testified as follows:

THE CLERK: Raise your right hand, please. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God?

DR. SHIELDS: I do.

THE CLERK: Please have a seat in the witness stand and state and spell your first and last names for the record.

DR. SHIELDS: William Shields, W-I-L-L-I-A-M S-H-I-E-L-D-S.

THE CLERK: Thank you.

THE COURT: All right. Good afternoon, doctor.

DR. SHIELDS: Good afternoon.

THE COURT: Mr. Thompson.

DIRECT EXAMINATION BY MR. THOMPSON

MR. THOMPSON: Okay. Good afternoon, Dr. Shields. Dr. Shields, did you bring with you a curriculum vitae--

DR. SHIELDS: Yes, I did.

MR. THOMPSON: --on your educational background?

MR. THOMPSON: Your Honor, may I approach and give the Court a copy?

THE COURT: You may.

MR. THOMPSON: And I suppose we should have this marked as the next in--Defense next in order, your Honor.

THE COURT: All right. As soon as I get Mrs. Robertson back. Proceed.

MR. THOMPSON: Okay. Okay. Dr. Shields, could you describe your educational background?

DR. SHIELDS: I have an AB in biology from records university and an MS and a Ph.D. in zoology from the Ohio State University.

MR. THOMPSON: And what is your current position?

DR. SHIELDS: I'm a Professor of Biology at the State University of New York, College of Environmental Science and Forestry in Syracuse.

MR. THOMPSON: Okay. And I see on your vitae you list some previous positions that you've held, among them distinguished scholar and residence at Northern Arizona University. Can you describe what that position was?

DR. SHIELDS: That wasn't a previous position. That was an endowed share to allow for people to visit during sabbatical. So I had a sabbatical year that year in 1986, `87 and spent a year in Arizona. In fact, that's where I started doing molecular genetic techniques.

MR. THOMPSON: Okay. All right. Can you describe for us generally what your areas of research are?

DR. SHIELDS: Yes, I can. Since graduate school, about half of the research I've been doing has been in the area of behavioral ecology, primarily with birds. The other half of the research that I do is about evolutionary biology, and in particular, the evolution of population structure and how population structure influences evolution.

MR. THOMPSON: Okay. Now, this work in this second area, evolutionary biology, does this include research and publications in the field of population genetics?

DR. SHIELDS: Yes, it does.

MR. THOMPSON: Have you published peer review articles in the field of population genetics?

DR. SHIELDS: Yes. I published a book and--which is peer reviewed and a number of articles as well.

MR. THOMPSON: Have you also published in the field of statistics?

DR. SHIELDS: I have published papers that are statistical in nature and in the journals where statistics would be.

MR. THOMPSON: Okay. Now, have you published any work relevant to the use of statistics in connection with DNA evidence?

DR. SHIELDS: I've published one paper which was not peer reviewed in a proceedings of a Promega Conference that's directly about the use of statistics in forensic DNA typing, and then I've published a number of papers in parts of the book where relevant ideas, ideas that are relevant to understanding how to do forensic DNA typing, profile frequencies are presented.

MR. THOMPSON: What teaching experience do you have that's relevant to the fields of statistics or population genetics?

DR. SHIELDS: Well, I've taught courses. Well, probably three different ones. I've taught courses in--that have a large genetic component, primarily conversation biology and conversation genetics where one looks at how population genetics influences the conservation of rare and endangered species. I've also taught courses in statistical inference, graduate courses.

MR. THOMPSON: Okay. Now, do you have a laboratory that you work in at Syracuse?

DR. SHIELDS: Yes, I do.

MR. THOMPSON: And what is the nature of the laboratory work that you--that goes on in your lab?

DR. SHIELDS: The laboratory is set up to do what we call field research on genetic variation. We look at a variety of organisms and use three major tools to look at how they vary in nature. We use protein electrophoresis which has been mentioned, we use RFLP DNA typing and we also use PCR.

MR. THOMPSON: Okay. And you say "We." Do you supervise other people in your laboratory?

DR. SHIELDS: Yes. I have graduate students.

MR. THOMPSON: Okay. Now, are you familiar with the methods used for forensic DNA testing?

DR. SHIELDS: Yes, I am.

MR. THOMPSON: And how did you become involved in the area of forensic DNA testing?

DR. SHIELDS: In about 1990, an attorney in Syracuse, New York asked me to look at some data involved in a criminal case, and that was my initial involvement. As a result of that case, I became involved in his case, and I've continued to occasionally look at a variety of data that are relevant to forensic proceedings.

MR. THOMPSON: Uh-huh. Are you familiar with the methods used by laboratories such as Cellmark diagnostics and DOJ?

DR. SHIELDS: Yes, I am.

MR. THOMPSON: Have you visited any forensic laboratories to observe how they do their work?

DR. SHIELDS: Yes, I have.

MR. THOMPSON: Which laboratories have you visited?

DR. SHIELDS: I've visited Cellmark. I have visited the Department of Orange County's crime lab. I have visited the--that's about it.

MR. THOMPSON: Okay. And have you studied--

DR. SHIELDS: Oh, I visited the FBI's Quantico laboratory as well.

MR. THOMPSON: Okay.

DR. SHIELDS: But they don't do their case work there. That's where they do the research underlying the case work.

MR. THOMPSON: The FBI's research facility where they develop the techniques?

DR. SHIELDS: That's correct.

MR. THOMPSON: Okay. And while there, did you review scientific data produced by the FBI?

DR. SHIELDS: Yes, I did.

MR. THOMPSON: Okay. And have you studied the protocols developed by the various forensic laboratories that do DNA testing?

DR. SHIELDS: Yes. Many more than I visited.

MR. THOMPSON: Okay. Have you done studies of the databases developed by forensic laboratories?

DR. SHIELDS: Yes, I have.

MR. THOMPSON: What sort of studies have you done?

DR. SHIELDS: I've done similar studies back in 1990, `91 to the sorts that Dr. Weir mentioned earlier, looking at the data that are produced in--by the forensic laboratories for difference races and ethnic groups and different geographical regions to examine the issues of independence. I've done that for 40, 50 labs from around the world.

MR. THOMPSON: Okay. And does this work have to do with assessing the validity of statistical inferences drawn from forensic DNA evidence?

DR. SHIELDS: Yes.

MR. THOMPSON: Okay. Do people who do forensic testing call on you for advice?

DR. SHIELDS: Sometimes.

MR. THOMPSON: Can you describe some of those times?

DR. SHIELDS: Well, I've been asked to present my ideas about some of the potentials and problems with--associated with forensic DNA typing, in particular, the statistical aspects by Promega in a human identification conference a number of years ago, by the California association of criminalists, again, a number of years ago at a meeting at bass lake.

MR. THOMPSON: Is this the same California association of criminalists that we've heard testimony about in this case from Mr. Fung and other witnesses?

DR. SHIELDS: Yes.

MR. THOMPSON: Okay. When you attended these conferences, did you meet with people from the LAPD crime lab?

DR. SHIELDS: Yes.

MR. THOMPSON: Please go on about the other--

DR. SHIELDS: I've also been asked to in essence do short courses, sometimes a little longer than short, but short courses and other kinds of courses about forensic DNA typing, and again, particularly, the statistics with a variety of legal organizations; for example, public defender's office in Maryland, public defender's office in New Hampshire, the public defender's office in Massachusetts, also, the Bar Association of Tompkins County in New York, so that it had Prosecutors, Judges and Defenders, and I've been asked to engage in debate to explicate these issues, for example, at the University of Iowa with scientists associated with the Royal Canadian Mounted Police.

MR. THOMPSON: Have you been asked by any crime labs to consult with them on how to set up their databases?

DR. SHIELDS: Yes, I have. Fairly recently, I've become involved with the Monroe County crime lab, that's Rochester, New York, in an attempt to develop databases that they can use with their PCR techniques.

MR. THOMPSON: Now, one other question about your laboratory. You mentioned a lot of the statistical work. In your laboratory, do you also do work in molecular biology?

DR. SHIELDS: My students do. I don't do actual molecular biology for my own research, but I in essence teach them and assist them in interpreting their molecular work.

MR. THOMPSON: So--and would this include, for example, RFLP analysis?

DR. SHIELDS: Yes, it does.

MR. THOMPSON: In your laboratory, do people under your supervision do PCR work?

DR. SHIELDS: Yes, they do.

MR. THOMPSON: Okay. Now, have you been called to testify as an expert witness concerning statistical inferences in forensic DNA evidence cases?

DR. SHIELDS: Yes, I have.

MR. THOMPSON: About how many times have you testified as an expert witness?

DR. SHIELDS: In about 60 different cases. And those cases sometimes would include hearings and/or trials, sometimes both.

MR. THOMPSON: Now, do you testify only for the Defense or are you willing to testify or have you testified for both Prosecution and Defense?

DR. SHIELDS: I've testified for both.

MR. THOMPSON: Okay. Have you ever been asked to testify as an expert witness by the Los Angeles County District Attorney's office?

DR. SHIELDS: Yes.

MR. THOMPSON: Okay. And how did it happen that you were contacted by the Los Angeles County District Attorney's office and asked to be an expert witness for them?

DR. SHIELDS: An assistant District Attorney, whose name I do not remember, called and asked if I would be interested, and he said he was calling at the request of another assistant District Attorney.

MR. THOMPSON: And who was that?

DR. SHIELDS: Miss Kahn.

MR. THOMPSON: And this is Lisa Kahn, who is sitting to my right; is that right?

DR. SHIELDS: Pardon?

MR. THOMPSON: You're referring to Miss Kahn, who is sitting to my right?

DR. SHIELDS: Yes.

MR. THOMPSON: Okay. Now, Dr. Shields, are you familiar with the National Research Council's report titled "DNA technology and forensic science"?

DR. SHIELDS: Yes, I am.

MR. THOMPSON: And do you consider this an authoritative source of scientific information about forensic DNA testing?

MR. CLARKE: Objection. No foundation.

THE COURT: Overruled.

DR. SHIELDS: I'm sorry. Would you repeat the question?

MR. THOMPSON: Do you consider this an authoritative source of scientific information about forensic DNA testing?

DR. SHIELDS: Yes.

MR. THOMPSON: Okay. Now, at page 59 of the NRC report, there's a statement that we've been talking about concerning the way--concerning what statistics should be computed in connection with mixed DNA samples. Are you familiar with that statement?

DR. SHIELDS: Yes, I am.

MR. THOMPSON: And do you agree with that statement?

DR. SHIELDS: Are we talking about the statement that's the last sentence in the third paragraph, fourth paragraph?

MR. THOMPSON: To be clear, let me read the statement. The statement says: "If a suspect's pattern is found within the mixed pattern, the appropriate frequency to assign to such a match is the sum of the frequencies of all genotypes that are contained within, i.e., that are a subset of the mixed pattern." Now, that's the statement you're familiar with?

DR. SHIELDS: Yes.

MR. THOMPSON: And do you agree with that statement?

DR. SHIELDS: Yes, I do.

MR. THOMPSON: Okay. Now, I would like to have you take a look at the exhibit that's been marked Prosecution no. 410. And I don't know if I can put that on the elmo now.

THE COURT: Do you have a copy of that in front of you?

DR. SHIELDS: Yes, I do, your Honor.

THE COURT: No. I'm talking about the exhibit.

DR. SHIELDS: Oh, no.

THE COURT: We don't need the elmo for this purpose, counsel.

MR. THOMPSON: All right. Okay.

DR. SHIELDS: Actually, I'm sorry, your Honor. I don't. I didn't know you were talking about the exhibit.

THE COURT: All right. Mr. Thompson, do you have a copy of that--

MR. THOMPSON: I do, your Honor. Just a moment.

THE COURT: All right. Go ahead, put it on the elmo, save us time.

MR. THOMPSON: Okay.

THE COURT: All right. That's People's exhibit 410.

MR. THOMPSON: Okay. Now, Dr. Shields, has this chart--does this chart show computations that have been done in accordance with the recommendations of the National Research Council concerning mixtures?

DR. SHIELDS: Yes.

MR. THOMPSON: Okay. Why is it necessary to compute statistics for mixed DNA stains in a manner that's different for--from the way statistics are computed for an unmixed stain, stain from a single person?

DR. SHIELDS: Because there's a different set of evidence that needs to be addressed. In one case, they're--in what we call a single stain, we will see evidence that's consistent with a single stain and no positive evidence of a mixture. In other words, we can assume that it's a single person and not have any evidence that's against that or any evidence that would suggest otherwise. When you have a mixture, you know that there is more than one person involved in that piece of evidence. But what you don't know, there's no positive evidence that it's two, three, four or five.

MR. THOMPSON: Or more?

DR. SHIELDS: Or any number. There is no evidence based on simply the mixture that you see in a stain of how many people contributed to that.

MR. THOMPSON: And how does that uncertainty about number of contributors affect the statistic that should be presented to characterize the value of a finding of consistency with a mixture?

DR. SHIELDS: Well, that will depend on the question that you're attempting to address and what you're trying to present to a jury. If what you're trying to do with any trier of fact or to a student, it doesn't matter who the audience is, if what you're trying to do is get a flavor for how common or rare a match would be, which is presumably what's going on, then the question becomes, how many individuals in the random population or the population of interest in another way would be likely to be if they were taken off the street and typed declared potential contributors to that mixed stain. And that's a way of providing a weighting to that evidence without any assumptions.

MR. THOMPSON: Does the National Research Council's method address the question that you just posed?

DR. SHIELDS: Yes, it does.

MR. THOMPSON: Okay. Have you reviewed Dr. Weir's method for computing the frequencies in connection with mixed stains?

DR. SHIELDS: Yes, I have.

MR. THOMPSON: All right. And Dr. Weir in fact prepared a series of reports; did he not?

DR. SHIELDS: Yes, he did.

MR. THOMPSON: Okay. Have you reviewed all of them?

DR. SHIELDS: I'm not sure.

MR. THOMPSON: Well, let's--

DR. SHIELDS: I've reviewed three and some addendum.

MR. THOMPSON: Okay. Let's limit our discussion to his report of--his most recent report, which is the report of Tuesday. No. Wait a minute.

DR. SHIELDS: No. I think it's--

MR. THOMPSON: The report of yesterday. Okay. We'll limit our comments to his diversion yesterday. Have you reviewed that document?

DR. SHIELDS: Yes, I have.

MR. THOMPSON: Does the method Dr. Weir recommends for computing statistics in connection with mixtures comply with the National Research Council's recommendations?

MR. CLARKE: Objection. No foundation.

THE COURT: Overruled.

DR. SHIELDS: No.

MR. THOMPSON: And why not? In what way does it fail to comply with the National Research Council's method?

DR. SHIELDS: The National Research Council is very clear and unequivocal about how this should be done. It says to sum the frequencies of all genotypes that are found in the mixture. Genotypes are individuals. The frequencies of all of the individuals whose genotypes allow them to be potential contributors to that mixture is the only way that one can produce a frequency as suggested by that sentence.

MR. THOMPSON: Okay.

DR. SHIELDS: In contrast, Dr. Weir's methodology produces a summation of the frequency of pairs of individuals. Rather than simply summing genotypes, it sums probabilities of pairs of individuals.

MR. THOMPSON: In your opinion, is Dr. Weir's method an appropriate way to characterize the value of mixture evidence in a case such as this one?

MR. CLARKE: Objection. No foundation.

THE COURT: Overruled.

DR. SHIELDS: No.

MR. THOMPSON: And why not?

DR. SHIELDS: Because it makes assumptions that go beyond the genetic evidence in my opinion. The genetic evidence of a mixture only allows one to say that one or more individuals contributed to that. It doesn't tell you who. If one assumes that one knows who produced a mixture, one is no longer doing a test of a hypothesis. One is just validating one's initial assumption. So in essence, I don't believe it's correct to assume that you know anything about the number of contributors as a geneticist looking at the data. I think it's appropriate to provide a frequency with which individuals could possibly contribute to the mixture. In contrast, Dr. Weir's method is to ask the question, would these known individuals--what's the probability of these known individuals having contributed to this evidence sample. What the NRCRI would say is, what is the probability of any individuals that could possibly--what's the frequency of, not what's the probability of, but what's the frequency of any individuals that could--and that "Could" is an important word--contribute or could have contributed to this evidence.

MR. THOMPSON: In your opinion, would other scientists in the field of statistics and population geneticists accept Dr. Weir's approach for characterizing mixtures?

DR. SHIELDS: I'm sure--

MR. CLARKE: Objection. I'm sorry. Assumes facts not in evidence, calls for speculation.

THE COURT: Overruled.

DR. SHIELDS: I'm sure that many would.

MR. THOMPSON: And do you think some would not?

DR. SHIELDS: I'm sure that many would not.

MR. THOMPSON: Okay. All right. So--and what about the National Research Council's method? What do you think would be the distribution of scientific opinion about that method?

MR. CLARKE: Same objection.

THE COURT: Overruled.

DR. SHIELDS: I'm sure some would agree and some would disagree. We have one of each here.

MR. THOMPSON: So would it be fair to say that this--this issue of how to compute statistics in connection with mixtures is an issue in controversy in the scientific community?

DR. SHIELDS: It's not really been addressed. So I'm not sure how you could call it a controversy yet.

MR. THOMPSON: Okay. And why is that? Based on your experience, Dr. Shields, in testifying in a number of cases, why is it that this issue of how to compute statistics on mixtures hasn't--hasn't come up before?

DR. SHIELDS: Well, it has come up before. I've been involved in a couple of cases where it's come up. But it doesn't happen frequently enough I think that people have sat down and thought about it except that they did present a way of doing it that's without assumption.

MR. THOMPSON: Okay. So is this--is this an issue that has been discussed extensively in the scientific community or is it an issue that's just emerging as a topic of discussion?

DR. SHIELDS: I think I would say it's emerging.

MR. THOMPSON: Okay. At this point, is there, in your opinion, any consensus in the scientific community about the right way to compute statistics in connection with mixtures?

MR. CLARKE: Objection. Irrelevant.

THE COURT: Overruled.

DR. SHIELDS: I'm sorry. What was that?

MR. THOMPSON: Is there any consensus about the right way to compute statistics in connection with mixtures?

DR. SHIELDS: I'm not sure what "Consensus" means. I don't think so. I mean I--if "Consensus" means everybody sort of agrees, no.

MR. THOMPSON: Okay. Which--which method--as between Dr. Weir's method and the NRC method, which method is the most conservative method in terms of making the fewest assumptions?

DR. SHIELDS: The fewest assumptions? The NRC's method makes no assumptions that are not there in the genetics.

MR. THOMPSON: Okay. And do you think it's bad to make the assumptions that Dr. Weir was making in doing his calculations?

DR. SHIELDS: I wouldn't. I don't think it's good. I'm not sure if "Bad" is the right word for it. I think--I don't think it's--it presents the evidence in the light that's the best characterization of that evidence for--from the genetics.

MR. THOMPSON: Okay. All right. Now, did you understand Dr. Weir to say that the frequencies that he was computing were likelihood ratios?

DR. SHIELDS: Yes.

MR. THOMPSON: Okay. And what is a likelihood ratio?

DR. SHIELDS: A likelihood ratio is in essence just the ratio of two probabilities. And by doing a ratio of two probabilities, one can come up with some feeling for how much more likely one of those hypotheses is versus a second, and it's the probabilities associated with two hypotheses.

MR. THOMPSON: Okay. Now, does a likelihood ratio--what's the purpose of a likelihood ratio in the field of statistics? What is it used for?

DR. SHIELDS: It can be used for lots of different things. But the notion is that you're trying to get a field for how much more likely one proposed set of events is relative to another proposed set of events to explain the same sort of outcome.

MR. THOMPSON: Do you think that Dr. Weir's statistics, that is statistics computed according to his method, are an appropriate likelihood ratio for characterizing the value of mixture evidence in this case?

DR. SHIELDS: No.

MR. THOMPSON: And why not?

DR. SHIELDS: Well, there's actually two reasons. One has to do with the fact that, first of all, they're not likelihood ratios unless one makes an assumption. The frequencies as they're presented for single stains are likelihood ratios if one assumes that there is a known individual. And that's--that can done if you have a known sample, for example, if there's just one individual contributing that stain. You can also do that I think legitimately if you have no extra bands to make an assumption that--to show you that that assumption is absolutely false, that there are in fact more than one contributor to a particular piece of evidence. So if one assumes that there is one individual and they match at each and every band, then the numerator in the likelihood ratio becomes 1. And when you multiply 1 by the frequency, the answer is the frequency.

So the frequency and the likelihood ratio are arithmetically equivalent. But that's based on that 1, and it doesn't have to be 1, the numerator doesn't have to be 1. If you have no knowledge of what the likelihood is, that it was two individuals that contributed a stain or whether it was these two individuals that might have contributed the stain, if you're not using those hypotheses, you can still present the frequency, but it's no longer part of a likelihood ratio. It's simply the frequency of the genetic profile in the populations represented by the databases sampled.

MR. THOMPSON: Okay. And so are you telling us then that the frequencies as computed by Dr. Weir would not be an appropriate likelihood ratio unless a number of assumptions are made?

DR. SHIELDS: Yes. That's just the assumptions for the numerator. There are also assumptions for the denominator.

MR. THOMPSON: And do you think that the assumptions that are required in order for Dr. Weir's frequencies to be treated as a likelihood ratio are appropriate assumptions for an expert witness to make in a criminal case?

MR. CLARKE: Objection. No foundation, irrelevant.

THE COURT: Overruled.

DR. SHIELDS: Would you please repeat it?

MR. THOMPSON: Do you think that the assumptions that would be necessary in order for Dr. Weir's frequencies to be treated as a likelihood ratio are appropriate assumptions for an expert witness to make in a criminal case?

DR. SHIELDS: If--I don't believe they're appropriate for a genetics expert witness to make because a genetics expert is, in my opinion, intended to be presenting information that stems from the genetic data that are associated with that case and only the genetic data.

MR. THOMPSON: And would Dr. Weir's assumptions require the expert to go beyond the genetic data?

DR. SHIELDS: Yes.

MR. THOMPSON: All right. I see in Dr. Weir's report that when he computes likelihood ratios, the likelihood ratio purports to characterize the probability of the evidence under two different hypotheses. Did you see that section?

DR. SHIELDS: Yes, I did.

MR. THOMPSON: And the two hypotheses are that the particular individual had contact with the scene or did not have contact with the scene.

DR. SHIELDS: That's correct.

MR. THOMPSON: Is that correct? Now, do you believe that that is a legitimate way to frame competing hypotheses that are to be tested by genetic data?

DR. SHIELDS: No, because there are non-genetic influences that will change those probabilities.

MR. THOMPSON: Okay. And so if one--if one took the position that frequencies computed from genetic data provided a likelihood ratio for distinguishing those hypotheses, would one be leaving out any important factors?

DR. SHIELDS: Yes.

MR. THOMPSON: What sort of factors would one be leaving out?

DR. SHIELDS: Well, since that what goes into the likelihood ratio here is the probability of this profile given the database information, the frequencies of the variance in a database, it does not address the questions of the likelihood of getting a positive result evidence with a particular profile that's associated with errors of a variety of kinds, cross-contamination that can occur for a variety of reasons, and it also doesn't--all it does is the coincidental match, the probability that someone other than the individual in question might have left the evidence.

MR. THOMPSON: Would it be scientifically valid to leave out those other variables you mentioned when presenting a likelihood ratio which purported to show the relative likelihood of the evidence under the hypothesis contact and no contact?

DR. SHIELDS: In my opinion, no.

MR. THOMPSON: Okay. Would it be biased to present such numbers and to claim that they were a likelihood ratio for the hypothesis contact versus no contact?

DR. SHIELDS: Those two--with that set of words, contact and no contact, yes, I think they are.

MR. THOMPSON: And would it be biased for or against the Defendant in the case?

DR. SHIELDS: Against.

MR. THOMPSON: Okay. Do you think that the assumptions that you've discussed that underlie Dr. Weir's analysis are easy assumptions for people to understand?

DR. SHIELDS: I--no, they're not.

MR. THOMPSON: You've--based on your experience in teaching statistics and genetics to students, would it be easy to explain what's wrong with Dr. Weir's assumptions?

DR. SHIELDS: You use the wrong "Word" and--

MR. THOMPSON: Well, would it be--would it--let me withdraw the question and rephrase it. Would it be easy to explain the nature of the assumptions that Dr. Weir is making?

DR. SHIELDS: In some senses, yes. In other senses, no.

MR. THOMPSON: Okay. Could you explain a little more?

DR. SHIELDS: I think it shows up more in what happens in the results of Dr. Weir's assumptions and analysis where you end up with a set of what he calls frequencies, but I think they are probabilities associated with different explicit pairs of individuals of different ethnic backgrounds associated with different databases and, therefore, different frequencies so that you end up with instead of a number that gives someone a flavor for how likely it is that anybody might contribute to this mixed stain which is a single number, you have a set of numbers that can range from 1 in 7 to 1 in 17,000. And how one interprets that, I think it's open to individuals to look and say, okay, the 1 in 7 is the biggest number, and so that makes that the likeliest trio, and that trio may have very little relationship to anything that's going on in the case or in any case. It's precise, but I think it can mislead.

MR. THOMPSON: Okay. Now, let me direct your attention to the chart that's sitting just to your left. It's the Prosecution's chart labeled "Results of DNA analysis, Bronco automobile." Have you seen that chart before?

DR. SHIELDS: Yes, I have.

MR. THOMPSON: Okay. Now, in the column on the far right, that column is headed with a term "Frequency," and in some of the boxes below there, there are certain numbers. Now, do all the numbers that are presented in that chart so far--well, first of all, do you understand what those numbers are and what they mean?

DR. SHIELDS: Yes, I do.

MR. THOMPSON: Okay. Would it be correct to characterize all of the numbers that are on the chart at this point as frequencies?

DR. SHIELDS: Yes, it is.

MR. THOMPSON: Okay. Now, if we put onto that chart numbers derived from Dr. Weir's computations, would those numbers be comparable as far as their meaning to the numbers that are already on there?

DR. SHIELDS: No.

MR. CLARKE: Objection. Vague.

THE COURT: Overruled.

MR. THOMPSON: And how would they differ?

DR. SHIELDS: The difference stems from the column to the left of the frequency column. The column to the left says "Not excluded." And, therefore, it's the frequency of individuals who are not excluded. And if it's the frequency of individuals who are not excluded, the NRC's methodology is what gives you that proportion, that frequency. Dr. Weir's method gives you the frequency of pairs of individuals that would not be excluded.

MR. THOMPSON: Or--just pairs or other common--

DR. SHIELDS: Well, he's also done three's. But it doesn't do the frequency of individuals who would not be excluded, and that's what all of the other ones are.

MR. THOMPSON: Okay. So if--are you saying that if we wanted the mixture numbers to be comparable in their meaning to the numbers that are already on there, we should present numbers done the NRC way?

DR. SHIELDS: In my opinion, yes.

MR. THOMPSON: Do you think it would be easy for people to understand the difference between the NRC numbers and Dr. Weir's numbers?

MR. CLARKE: Objection. Calls for speculation.

THE COURT: Overruled.

DR. SHIELDS: I don't know.

MR. THOMPSON: Okay. No further questions. Thank you, Dr. Shields.

THE COURT: Mr. Clarke.

MR. CLARKE: Yes, thank you, your Honor.

CROSS-EXAMINATION BY MR. CLARKE

MR. CLARKE: Dr. Shields, good afternoon.

DR. SHIELDS: Good afternoon.

MR. CLARKE: I'd like to touch on a couple of the topics that you just discussed while they're fresh in our minds. As far as coincidental identity and laboratory error, it's your belief that those should be incorporated into one figure?

DR. SHIELDS: No, it's not.

MR. CLARKE: So in fact, is it your testimony that those should be dealt with separately?

DR. SHIELDS: Yes, in my opinion.

MR. CLARKE: Now, with regard to this particular hearing, is it your understanding that what the Court is making a decision about is whether or not likelihood ratios should be admitted?

DR. SHIELDS: No. Well, initially, yes, but I don't think that is anymore.

MR. CLARKE: What's your understanding of the issue before this Court in terms of what the Court has to decide?

DR. SHIELDS: It's been my understanding both from watching the proceedings and from discussions with attorneys that the decision has to do with whether the National Research Council's method of providing a number for mixtures is useful.

MR. CLARKE: Okay. So it's your understanding that what the Court has to decide in this hearing is whether or not the NRC's recommendation is useful?

DR. SHIELDS: Yes.

MR. CLARKE: If the Court's decision was something different from that, would that impact any of your answers to any of the questions by Mr. Thompson?

MR. THOMPSON: Object as to vague.

THE COURT: Sustained.

MR. CLARKE: As far as likelihood ratios--and you've discussed likelihood ratios in the course of your testimony--is it your testimony that a likelihood ratio is the same as the frequencies that Dr. Weir described on one of the exhibits with the mixture from the steering wheel, item no. 29?

DR. SHIELDS: Yes.

MR. CLARKE: Now, I'd like if I could, Dr. Shields--first of all, are you a statistician?

DR. SHIELDS: I do statistics. I would not count myself as a statistician.

MR. CLARKE: Would you consider--first of all, are you familiar with Dr. Weir?

DR. SHIELDS: Yes, I am.

MR. CLARKE: Is Dr. Weir an individual who is well known in the area of statistics and population frequency data?

DR. SHIELDS: Yes, he is.

MR. CLARKE: Would it fair to say he's very well known?

DR. SHIELDS: Yes.

MR. CLARKE: Very well respected?

DR. SHIELDS: Absolutely.

MR. CLARKE: Your particular area, that is of your Ph.D., is zoology, correct?

DR. SHIELDS: No. My Ph.D. was on the evolution of sex in all organisms, and that's population genetics. I was in a zoology department, but it was an evolutionary biology and in particular, population genetic dissertation.

MR. CLARKE: Is it correct--and you have a number of publications; is that correct?

DR. SHIELDS: That is correct.

MR. CLARKE: Is it correct that those or at least the clear majority of those publications are directed towards animals?

DR. SHIELDS: No, I wouldn't say a clear majority. I would say it's about half and half.

MR. CLARKE: And what would the other half be directed towards?

DR. SHIELDS: Population genetic and evolution theory and how they--how they have interactions with each other.

MR. CLARKE: Are you a member of any genetic societies?

DR. SHIELDS: Yeah. I'm a member of the society of the study of evolution and the American society of naturalists, both of which have large memberships in the areas of genetics.

MR. CLARKE: Are you a member of any statistical societies?

DR. SHIELDS: No, I am not.

MR. CLARKE: As far as your publications--and just briefly, was one of your publications what causes rape, a descending view?

DR. SHIELDS: Yes, it was.

MR. CLARKE: And was another forcible rape, an evolutionary prospective?

DR. SHIELDS: Yes, it is.

MR. CLARKE: And another the evolution of sex and examination of current ideas?

DR. SHIELDS: Yes.

MR. CLARKE: Do you have any peer reviewed articles or publications on statistics and human DNA?

DR. SHIELDS: Depends on how you define "Human DNA." The answer is yes. I have paper on the behavioral brain sciences that looks at how genetics, which is how genes, which is DNA, influence human behavior. Parts of my book deal with the distribution of variation in human populations. And in that--from that perspective, the book is also peer review.

MR. CLARKE: What about in terms of human DNA as it's used in forensic science?

DR. SHIELDS: I have only one non-peer reviewed paper.

MR. CLARKE: And you've stated your familiarity with Dr. Weir?

DR. SHIELDS: Yes.

MR. CLARKE: In your opinion, are you as qualified as Dr. Weir to offer an opinion about the calculation of frequencies with mixed forensic DNA typing stains?

DR. SHIELDS: Yes.

MR. CLARKE: Do you have a rating system of people involved in the area of DNA and population frequencies?

DR. SHIELDS: Not in that area, but in the area of population genetics.

MR. CLARKE: Okay. What's that rating system?

MR. THOMPSON: Objection. It's irrelevant, your Honor.

THE COURT: Overruled.

DR. SHIELDS: I wouldn't call it a rating system. In a prior case, during a deposition, I tongue and cheek described how I felt people's representations were in the areas of population genetics, and I used the words "God, demigod and hemigod."

MR. CLARKE: God, demigod and hemigod?

DR. SHIELDS: Hemigod, yeah.

MR. CLARKE: And that was to describe population geneticists?

DR. SHIELDS: Yes. They were asking me about the relative reputations of different population geneticists.

MR. CLARKE: In Dr. Weir's report in this case--and I believe you said you read that; is that right?

DR. SHIELDS: That's correct.

MR. CLARKE: He cites an individual named Dr. Crowl; is that right?

DR. SHIELDS: Yes.

MR. CLARKE: How would you rate Dr. Crowl?

DR. SHIELDS: He's at that top level.

MR. CLARKE: And the top level again is what?

DR. SHIELDS: Again, it's tongue and cheek, but I use the word gods.

MR. CLARKE: How do you rate yourself?

DR. SHIELDS: Hemigods.

MR. CLARKE: How about Dr. Weir?

DR. SHIELDS: Demigods.

MR. CLARKE: So he is in your view ranked higher than yourself?

DR. SHIELDS: In terms of population genetics, yes. But this is not an issue of simply population genetics. It's an issue of logical inference as well, and I think he's wrong and I think I'm right.

MR. CLARKE: And you're pretty confident about that?

DR. SHIELDS: Yes.

MR. CLARKE: Have you read Dr. Weir's publications in the area of forensic DNA typing and population frequencies?

DR. SHIELDS: Yes.

MR. CLARKE: Do you respect them?

DR. SHIELDS: Yes.

MR. CLARKE: In terms of this case, have you examined the databases that were used in this case?

DR. SHIELDS: Yes.

MR. CLARKE: When were you first contacted by the Defense in this case?

DR. SHIELDS: July of `94.

MR. CLARKE: And have you been working on this case since then?

DR. SHIELDS: Depends on how you define working on, but yes, I've interacted with members of the Defense team since then.

MR. CLARKE: Can you give us a ballpark estimate of the number of hours you put into this case?

DR. SHIELDS: Ballpark estimate. Over 200 hours. Certainly less than 300.

MR. CLARKE: And are you charging for that time?

DR. SHIELDS: Not by the hour.

MR. CLARKE: Well, do you expect to receive--well, have you received any money from the Defense for this case?

DR. SHIELDS: Yes. A flat fee.

MR. CLARKE: Can you tell us how much that is?

DR. SHIELDS: $5,000.

MR. CLARKE: Do you anticipate receiving any more money from the Defense?

DR. SHIELDS: Yes. One more $5,000 flat fee.

MR. CLARKE: You've described seeing, for instance, this chart that's on the easel at the moment where that shows the results of the Bronco automobile. You've said you had seen that previously; is that right?

DR. SHIELDS: That's correct.

MR. CLARKE: Have you seen all the results charts in this case?

DR. SHIELDS: I couldn't possibly be sure of that. A lot of them that I've seen previously have actually been seen from watching on television.

MR. CLARKE: Okay. Were you provided reports of the testing laboratories in this case?

DR. SHIELDS: Yes, I have.

MR. CLARKE: Were you provided raw data from those testing laboratories in terms of bench notes, photographs, et cetera?

DR. SHIELDS: I was provided with raw data on the statistical aspects of this case. I have not looked at autorads and I've not looked at strips.

MR. CLARKE: So you basically directed your attention towards frequency data as opposed to the science involved in producing exclusions or inclusions?

DR. SHIELDS: In this case, yes.

MR. CLARKE: Your Honor, if I could, I would like to use exhibit 410 again. And I believe that's currently on the elmo, if I may.

MR. CLARKE: And, Dr. Shields, if you could, if that monitor is convenient, please use that.

DR. SHIELDS: Sure.

MR. CLARKE: In terms of this chart--and you've testified in answer to questions by Mr. Thompson that you believe that this is an appropriate method of describing frequencies in a mixture such as this mixture?

DR. SHIELDS: As long as it's presented correctly, yes.

MR. CLARKE: In your opinion, are the numbers, and we'll just look at the three numbers that are at the bottom of the three major ratio groups listed there, they're approximately 50 percent; is that fair?

DR. SHIELDS: Yes.

MR. CLARKE: Between 45 and 49--I'm sorry 49 and 59 percent or so?

DR. SHIELDS: Yes.

MR. CLARKE: Okay. I would like you to assume that in that stain--and are you familiar with the actual alleles that were detected in that stain?

DR. SHIELDS: Yes.

MR. CLARKE: And those alleles are what?

DR. SHIELDS: 1.1, 1.2 and 4.

MR. CLARKE: I'd like you to assume that that was donated, that is those results from a single contributor. What would the frequency be of that happening?

DR. SHIELDS: Three alleles from a single contributor?

MR. CLARKE: Correct.

DR. SHIELDS: It's actually possible, but we couldn't do a statistic on it.

MR. CLARKE: Would it be fair to say it would be zero or nearly zero?

DR. SHIELDS: It would be fair to say it's nearly zero. Never zero.

MR. CLARKE: I would like you to assume that there's two contributors to this particular result.

DR. SHIELDS: Uh-huh.

MR. CLARKE: Is it your opinion that approximately 50 percent of the time, from two unknown people those results would be obtained?

DR. SHIELDS: No. If you assume 50--that there are two contributors, then I believe that Dr. Weir's method will give you the appropriate result.

MR. CLARKE: And in fact, if there were two contributors, Dr. Weir's method is in fact an accurate method to describe the approximate frequency of those results?

DR. SHIELDS: If one can assume that there are two.

MR. CLARKE: That's what I'm asking you to do.

DR. SHIELDS: Yes.

MR. CLARKE: In other words, based on that assumption, Dr. Weir is absolutely correct?

DR. SHIELDS: Yes. Depends on what you mean "Based on that assumption," but yes.

MR. CLARKE: The assumption that there are two contributors to the stain.

DR. SHIELDS: If you know there are two, yes.

MR. CLARKE: As a corollary or connected with that, if you assume that there were three contributors to that stain, isn't it true that his method of calculating an approximate frequency as he described to this Court earlier with three assumed contributors is absolutely correct?

DR. SHIELDS: Yes. And what's interesting is the comparison between the table that you produced for this, which is the other one, that shows an assumption of two when the theory is that there may be three. It shows why just assuming two, as if you somehow know that from a mixture is wrong because three alleles let's you assume that there are two individuals. But in fact, the 29 stain, some people have suggested that it includes three individuals.

MR. CLARKE: Okay. And would it be a fair--under the assumption that there are three, would it be a fair approach, making that assumption, to use the calculation method by Dr. Weir for three people to describe that situation?

DR. SHIELDS: If you use that assumption, yes. But it's a fairer assumption to make no assumption.

MR. CLARKE: Okay. You talked a little bit about juries, the trier of fact in a case during your examination. Do you recall that?

DR. SHIELDS: Yes.

THE COURT: Excuse me one second. Are we having dueling cameras back there? All right. Proceed.

MR. CLARKE: Thank you.

MR. CLARKE: If a jury were satisfied that there were two and only two contributors to a stain, would the model proposed by Dr. Weir in fact describe that situation?

DR. SHIELDS: Yes.

MR. CLARKE: And the same would be true as far as your testimony if the jury found there were three contributors to a stain using his model for three contributors?

DR. SHIELDS: If they concluded that, yes.

MR. CLARKE: Now, Dr. Weir described--and I use the term "His model." Are you familiar with the article that he described earlier today by Dr. Evett and David Stoney?

DR. SHIELDS: Yes.

MR. CLARKE: Have you read that article?

DR. SHIELDS: I've read it a while back. I have not read it recently and I spent some time on a--at the California association of criminalists meeting with David Stoney discussing these issues.

MR. CLARKE: That's a peer review scientific publication, isn't it?

DR. SHIELDS: Yes.

MR. CLARKE: And in fact, that publication describes the methods used by Dr. Weir in this case?

DR. SHIELDS: Yes.

MR. CLARKE: Are you aware of any scientific, that is peer review scientific publication criticizing that method?

DR. SHIELDS: Yes.

MR. CLARKE: Tell us what that is, please.

DR. SHIELDS: One is the National Research Council.

MR. CLARKE: Is that a peer-reviewed publication in the scientific literature?

DR. SHIELDS: Yes.

MR. CLARKE: Go ahead. Were you going to name others?

DR. SHIELDS: Yes. There's a series of articles and commentaries that go from--that are based on a discussion of an article by Kathryn Roeder or Raeder. I'm not sure how she pronounces her last name, but it's r-o-e-d-e-r. And she published a paper exploring many of the issues, some of which included the problems associated with likelihood ratios, which means the problems associated with taking the frequency, adding assumptions and turning it into a probability, which is what Dr. Weir's done in my opinion.

MR. CLARKE: Okay. Now, are you--

DR. SHIELDS: And now some of the commentaries are critical of doing it.

MR. CLARKE: Okay. Are you discussing now likelihood ratios?

DR. SHIELDS: Yes. And in fact, it is a likelihood ratio the way it's done by Dr. Weir.

MR. CLARKE: Do you recall when Dr. Weir was using--one of the examples he used was--and this involved a series of databases. In other words, assuming if one person was Caucasian and another one was Hispanic, for instance, or Caucasian, African American--I'm sorry--African American and so forth. Do you recall him coming up with a frequency under one of those databases or two of those databases rather?

DR. SHIELDS: Okay. It's actually not a likelihood ratio. What it is is, it's a conditional probability. It's not a frequency. They are conditional probabilities. They are probabilities conditioned on a set of assumptions, for example, ethnic group, number of contributors and so forth and so on.

MR. CLARKE: Okay.

DR. SHIELDS: But that's the same thing. I'm sorry. The same thing happens. In the context of the descriptions of what's good and bad about doing likelihood ratios also applies to discussions of conditional probabilities.

MR. CLARKE: So to you, selecting a database is a conditional probability; is that right?

MR. THOMPSON: Objection. Vague.

THE COURT: Overruled.

DR. SHIELDS: Sure. If you--if you--for example, the one that you have in your--in the other exhibit, the number that comes out of that, which I believe was 1 in 71, is the conditional probability of those two genotypes given those two databases. The given makes it a conditional probability.

MR. CLARKE: Okay. So when, for instance, numbers have--which have already been reported on the board--and let's use the Bronco automobile board to your left there and let's take the example of the center console, item no. 30, found to be--that is not to be excluded was Mr. Simpson. And there are frequencies written in there of from 1 in 520 to in 1400. Do you see that?

DR. SHIELDS: Yes.

MR. CLARKE: And did you hear the testimony about that item, for instance, when this portion of the chart was filled in?

DR. SHIELDS: I might have.

MR. CLARKE: Did you see any of those reported frequencies or have you read any transcripts of how that came about; that is that those frequencies were testified to?

DR. SHIELDS: Yes.

MR. CLARKE: Do you recall that in fact those frequencies were presented because of the differences in frequencies for particular databases?

DR. SHIELDS: Yes.

MR. CLARKE: In other words, 1 in 520 on that example might be from African Americans, Caucasians or Hispanics, correct?

DR. SHIELDS: That's correct.

MR. CLARKE: And I simply don't recall which in particular produced one result. Is it your view then that that constitutes a conditional probability, the answer, that is the frequency to item 30?

DR. SHIELDS: Yeah. The 1 in 520, you can turn it into a conditional probability, but it's also a frequency. And as a frequency, you don't have to assume that. You can say that the frequency is 1 in 520 in that database.

MR. CLARKE: Okay.

DR. SHIELDS: That's not a probability.

MR. CLARKE: Then when Dr. Weir uses the number 1 out of 71, he's making the same types of assumptions about databases, correct?

DR. SHIELDS: Yes.

MR. CLARKE: What he's adding to it is an assumption that there is, for instance, in his first assumption that there are two contributors?

DR. SHIELDS: Yes.

MR. CLARKE: So is that then the only thing that's been added on in terms of these conditional probabilities to what's already been reported in court?

DR. SHIELDS: It would depend on which one you're looking at. But you can assume that there's two and exactly two, then you do it for different ethnic groups and different combinations of ethnic groups. That adds another layer for example; that you have to do all the pair-wise comparisons among ethnic groups. And if you add the possibility of doing three, you could then say that you should do the probability of two or three, if you think either of those are reasonable. And what I would say is that if you're going to do the probability that it's two or exactly--exactly two or three, exactly three or four or exactly four, you can also do it the way that the NRC recommends, which is just to say, we're not going to worry about whether it's two, three or four exactly. We're going to say what happens if we don't make any assumptions about the numbers.

MR. CLARKE: Incidentally, is it your testimony that the NRC's comment, that one last sentence in the paragraph, is clear and unambiguous?

DR. SHIELDS: Yes.

MR. CLARKE: Is it your testimony that--and you were here for Dr. Weir's testimony earlier this morning?

DR. SHIELDS: Yes.

MR. CLARKE: Is it your belief that the opinion he offered about that particular phrase "Being ambiguous" is wrong?

DR. SHIELDS: Yes.

MR. CLARKE: You also described, Dr. Shields, your opinion that in Dr. Weir's calculations, not likelihood ratios, but the calculation such as 1 in 71, that those were making assumptions about who the contributors were. Do you recall that?

DR. SHIELDS: Yes.

MR. CLARKE: In reality, don't those calculations make no assumptions about any of the known people in this case?

DR. SHIELDS: No. Say--I'm sorry. No. Not when they're presented as likelihood ratios.

MR. CLARKE: Okay. I want you to stop.

DR. SHIELDS: Okay.

MR. CLARKE: And what I'm referring to now are the calculations he made of frequencies, not likelihood ratios, but using as an example the 1 out of 71?

DR. SHIELDS: Okay. Now, go ahead. 1 out of 71 individuals with these--

MR. CLARKE: Well, why don't we--do you have the report in front of you by the way?

DR. SHIELDS: No. I do. I'm sorry. I do. I have his report.

(Brief pause.)

DR. SHIELDS: Page?

MR. CLARKE: And do you have the report dated June 21st?

DR. SHIELDS: Yes.

MR. CLARKE: If you could, could you turn to page 38?

DR. SHIELDS: Okay.

MR. CLARKE: And in particular, at the bottom is a table 29-C. Do you see that?

DR. SHIELDS: Yes.

MR. CLARKE: And in fact, we see the number 1 out of 71 twice in the African American, Caucasian combination for two contributors as well as in the African American, southeast Hispanic combination as well; is that right?

DR. SHIELDS: Yes.

MR. CLARKE: Is it your testimony that that constitutes a likelihood ratio?

DR. SHIELDS: No.

MR. CLARKE: Is it your testimony that that number has anything to do with the known types of the two victims and Mr. Simpson in this case?

DR. SHIELDS: No. This one assumes that there are two and only two contributors.

MR. CLARKE: And it makes no assumptions whatsoever about Mr. Simpson--

DR. SHIELDS: Well, actually--excuse me--this one assumes that there's the potential of three.

MR. CLARKE: All right. It makes no assumptions whatsoever and in no manner uses the known types of Mr. Simpson or the two victims, does it?

DR. SHIELDS: No. But that--but see, Dr.--what I heard earlier today was Dr. Weir talking about known genotypes in the numerator. He was talking about likelihood ratios as well as frequencies today.

MR. CLARKE: All right. I'm asking you about this table.

DR. SHIELDS: Okay. The table is frequencies I agree. You can do it as frequencies.

MR. CLARKE: And in fact, it uses in no manner the known types of these three individuals, does it?

DR. SHIELDS: That's correct.

MR. CLARKE: You described seeing mixtures in previous cases that you've worked on; is that correct?

DR. SHIELDS: Yes.

MR. CLARKE: Were frequencies reported?

DR. SHIELDS: No. The most recent one was in Minnesota in Federal Court, and those frequencies were withdrawn.

MR. CLARKE: Well, what I'm talking about--well, was that a case that involved only mixtures?

DR. SHIELDS: No. There was finally--there was a hair left that was not a mixture, and that was the only one that was presented.

MR. CLARKE: Okay. What I'm asking though is, were any numbers presented in any of the cases you've been involved in--

DR. SHIELDS: Oh, yes. They present--oop.

MR. CLARKE: I'm sorry, doctor.

THE COURT: The court reporter is about to kill both of you.

DR. SHIELDS: Okay.

MR. CLARKE: For just the mixtures only.

DR. SHIELDS: Yes.

MR. CLARKE: And numbers were presented?

DR. SHIELDS: They were originally presented and they were withdrawn the day of the Dahmer hearing.

MR. CLARKE: How many cases have you seen mixtures in approximately?

DR. SHIELDS: This kind of mixture--

MR. THOMPSON: Excuse me. Asked and answered.

THE COURT: Overruled.

DR. SHIELDS: The kinds of mixtures that are not mixtures associated with sexual assaults. Maybe three, four.

MR. CLARKE: And were numbers presented in each instance for the stains that showed mixtures?

DR. SHIELDS: In three, there were attempts to present numbers with those mixtures. They usually were associated with presenting numbers for subsets of the mixture under the assumption that they were particular individuals.

MR. CLARKE: In other words, were those frequencies calculated based on, as you used the term, a "Conditional probability"?

DR. SHIELDS: No.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Can I have just a moment, your Honor? I'm sorry.

(Brief pause.)

MR. CLARKE: Thank you. Nothing further, your Honor.

MR. THOMPSON: Just a few, your Honor.

REDIRECT EXAMINATION BY MR. THOMPSON

MR. THOMPSON: Okay. Dr. Weir--excuse me. Dr. Shields, you were asked about your qualifications relative to Dr. Weir's in various areas. Which of the two of you is more qualified in the area of molecular biology?

DR. SHIELDS: I am.

MR. THOMPSON: Okay. And which of the two of you do you think is more qualified with regard to drawing logical inferences from data produced by molecular biological techniques?

DR. SHIELDS: I think we're probably about equally qualified. I know he's convinced me of some things. I think we've come to the same conclusions a number of times.

MR. THOMPSON: Okay. Now, Mr. Clarke asked you a number of questions about the assumption regarding the number of contributors that's part of Dr. Weir's computations. Does Dr. Weir also make additional assumptions concerning things like whether alleles are observed and not observed in the stain?

DR. SHIELDS: Not in 29, but in 78, yes.

MR. THOMPSON: Okay. And so is that an additional assumption that is important in how Dr. Weir computes those numbers?

DR. SHIELDS: Yes. It's absolutely necessary.

MR. THOMPSON: Okay. And are you con--do you think that there's an adequate scientific foundation for the assumptions that Dr. Weir was making with regard to item 79 or 78?

DR. SHIELDS: No, I don't.

MR. THOMPSON: Okay. Now--

DR. SHIELDS: I do--well--

MR. THOMPSON: Please continue.

DR. SHIELDS: On item 78, there's a good match between one of the victims and that stain, and I believe that that's good information. I think that Cellmark declared that inconclusive, and most people, when there's an inconclusive, don't try to do statistics on what's left.

MR. THOMPSON: Okay. So do you think that the kind of statistical conclusions that Dr. Weir computed in connection with item 78 are scientifically valid?

DR. SHIELDS: Valid is an interesting term when you're talking about this sort of thing. It follows from his assumptions.

MR. THOMPSON: Yeah. Let me ask--

DR. SHIELDS: I don't think it's appropriate.

MR. THOMPSON: All right. That was my next question. So you think it's inappropriate?

DR. SHIELDS: It is valid, but inappropriate.

MR. THOMPSON: Okay. Now, I wanted to ask you a little bit more about this case you mentioned in Minnesota where statistics were offered in connection with mixtures and then withdrawn. Can you tell us why the statistics were withdrawn, if you know?

DR. SHIELDS: I don't know for sure.

MR. THOMPSON: Okay. Now, do you know of any other case where statistics were offered in connection with mixtures and then later withdrawn?

DR. SHIELDS: Yes.

MR. CLARKE: Objection. Irrelevant.

THE COURT: Overruled.

MR. THOMPSON: Okay. Can you tell us about that?

DR. SHIELDS: That case was a case in northern California, the Defendants' names were Heronus and Burch, and they were mixtures in which people were attempting to develop frequencies based on the assumption that you would know which of four bands came from which of two defendants without any evidence to back up that you could know that. And under those circumstances, there were discussions about how one should handle that, and in essence, it ended up being withdrawn.

MR. THOMPSON: Was this a case in which the Defense was preparing to challenge those kinds of statistical computations?

DR. SHIELDS: Yes.

MR. THOMPSON: And was the evidence drawn after it became apparent to the Prosecution such a challenge was forthcoming?

DR. SHIELDS: On the basis of a letter from the Prosecutor in that case, yes.

MR. THOMPSON: Okay. Which laboratory was involved in this case in Minnesota?

DR. SHIELDS: The FBI.

MR. THOMPSON: Okay. Does the--in the FBI's protocol, is there a section that describes how--

DR. SHIELDS: It was the FBI's database. It was Minnesota.

MR. THOMPSON: Okay. So it was the Minnesota lab--

DR. SHIELDS: Bureau of Criminal Apprehension.

MR. THOMPSON: Are you aware of any forensic laboratories that as part of their protocol have a discussion of how to compute statistics in the case of mixtures?

DR. SHIELDS: No.

MR. THOMPSON: Okay. What--to--in your understanding, what do labs generally do when confronted with a--say a mixed bloodstain?

DR. SHIELDS: I can only base it on the three cases of where I've seen that, four cases. And what they will do is, they will end up providing a statistic that's associated with--they will say that someone's not excluded and they will provide then the frequency of the pattern that is the person who is not excluded's rather than the frequency of the individuals who would not be excluded.

MR. THOMPSON: Okay. One moment, your Honor.

MR. THOMPSON: Dr. Shields, have you changed your mind about the appropriateness of Dr. Weir's calculations as a result of any other questions Mr. Clarke has asked you?

DR. SHIELDS: No.

MR. THOMPSON: Okay. Thank you.

MR. THOMPSON: No further questions.

MR. CLARKE: Just a moment if I might, your Honor.

(Discussion held off the record between the Deputy District Attorneys.)

MR. CLARKE: Just briefly, your Honor.

THE COURT: Briefly.

RECROSS-EXAMINATION BY MR. CLARKE

MR. CLARKE: Dr. Shields, with regard to mixtures, are you aware of whether or not mixture calculations are made by the methods described by Dr. Weir in the United Kingdom?

DR. SHIELDS: I believe they are.

MR. CLARKE: And that actually includes likelihood ratios; does it not?

DR. SHIELDS: It does. They go so far as to go all the way to a bayesian analysis.

MR. CLARKE: And likelihood ratios even incorporate the known types of the individuals involved in the case, don't they?

DR. SHIELDS: Yes.

MR. CLARKE: Dr. Weir's offered frequencies such as the one in 71 that we discussed don't even incorporate the known types of the individuals who may be associated with the case, do they?

DR. SHIELDS: That's correct.

MR. CLARKE: Thank you.

MR. CLARKE: Nothing further, your Honor.

MR. THOMPSON: One question.

THE COURT: Sure.

FURTHER REDIRECT EXAMINATION BY MR. THOMPSON

MR. THOMPSON: Now, Dr. Weir said his approach was based on an article by ion Evett, who is a British statistician and forensic scientist?

DR. SHIELDS: That's correct.

MR. THOMPSON: Do you know whether Dr. Evett advocates the use of likelihood ratios to communicate with juries or not?

DR. SHIELDS: He does.

MR. THOMPSON: Does he advocate presenting likelihood ratios as numbers?

DR. SHIELDS: No.

MR. THOMPSON: Okay. Thank you.

THE COURT: Well, if you're not going to do it as a number, how are you going to do it?

DR. SHIELDS: He uses words like "Strong evidence, extremely strong evidence, mild evidence, bad evidence."

THE COURT: All right. Thank you. Any other witnesses, Mr. Thompson?

MR. THOMPSON: No, your Honor.

THE COURT: All right. Mr. Clarke.

MR. CLARKE: Just some brief comments, your Honor. Thank you. I think the narrow issue before the Court frankly is foundation at this point. The Court asked there be a foundation provided. The People had the burden of providing a foundation for the admissibility of the frequencies, that portion of Dr. Weir's work that refers to frequencies, not likelihood ratios.

THE COURT: Uh-huh. But I'm also addressing the 352 issue as to whether or not it would be unduly confusing to the jury to present in this manner or whether or not it would have the possibility of misleading the jury, this manner of presentation. That's--

MR. CLARKE: Very well.

THE COURT: That's what concerns--foundation and then those three aspects of 352.

MR. CLARKE: I think I might address those best by describing the intent with which we had in the manner of offering this type of evidence.

THE COURT: All right. We're talking about 29, 78. Which other mixtures are we talking about? The Bronco console stains?

MR. CLARKE: Exactly. There are several in the Bronco, there are several if not nearly all--they're nearly all on the glove. In other words, nearly all of the results on that board. So those are by far the bulk. So it's largely on the glove board, to a lesser extent, on the Bronco board, and then one item, no. 78, on the Bundy scene board. So that's what we're dealing with in our view as far as the mixtures. It was our intent and using--and we'll just use the example of no. 29, the Bronco stain, to use a range nearly--well, actually identical in terms of its description on the board and to the jury--from the most common number to the rarest number for those mixture frequencies calculated by Dr. Weir. And one of those examples would again be--and I just don't have the page. Does the Court have the report before it?

THE COURT: Not open to the page, no.

MR. CLARKE: All right. And, for example, with regard to item 29, we put a 2 colon, meaning assuming two contributors, and the range would be, and just looking at that particular chart, from 1 in 71--I'm sorry--from 1 in 59--that's actually the most common--to 1 in 11,300. That was the most uncommon. And then with the example of 29, put the number 3 colon and do the same thing and making it clear that that's assuming three contributors to the stain. So that's the manner of presentation in terms of how this would be presented to the jury. I don't think in any manner it's more complicated than frankly the methods used to calculate a frequency for an overall stain, for a single person stain. So I don't think the Court should have concern about that because we could be spending days and days on simply the single stain donors or could have that were presented previously to this jury. So I don't think 352 is a valid basis to prevent this type of calculation any different than I don't think 352 by itself, other than the numbers as suggested by the Defense, are simply misleading. In fact, they're terribly misleading as Dr. Weir described earlier. But addressing the issue of admissibility in itself, as far as the decision this Court has to make, it is not a decision of general acceptance in our view. That was waived many, many months ago by this Defendant at a time when these mixtures were clearly known in terms of the samples and results in this case, which we argued to this Court back in December and January. The question is, in this situation--and the Court's evidence at this point is frankly the testimony of two experts and a series--well, a few exhibits, also including some of the peer review scientific literature. The fact that two experts reach contrary conclusions or opinions rather about the use of a particular technique does not render that type of testing result and the method used inadmissible in the context of this hearing.

THE COURT: No. I don't think Dr. Shields and Dr. Weir necessarily disagreed. Dr. Shields agreed that if I accept the appropriateness of making assumptions, then that mathematical calculation is the appropriate way to do it. So they agree on the math. They just don't agree to the nature of the presentation.

MR. CLARKE: Actually the Court anticipated the next item I was going to state, which was that, when one carefully listened to Dr. Shields' testimony, as the Court has already noted, he conceded that if there were two contributors, Dr. Weir's calculations were absolutely correct. The same answer was given by him to the assumption that there are three contributors. This jury has the right to make or reach certain conclusions about what happened in this case. And here's an example. This jury might mind or a jury in any case might find, this case perhaps less than others, that even though it's given frequencies for a matching stain of 1 in a certain number for one database such as Caucasian, 1 in a certain different number for African Americans and so forth, the jury may hear other evidence that satisfies it as to which database is the most appropriate to use. There may have been an eyewitness to a crime. And, therefore, the jury can decide well, that assumption I can now make based on the evidence that's been presented, that this person is from a certain category. Therefore, that number becomes more relevant to that jury or individual juror. This is no different because this jury can reach a decision that as to some of these items of evidence, I'm satisfied that there were two contributors. Therefore, Dr. Weir's number about two contributors, even Dr. Shields concedes is absolutely accurate. And I think that goes hand in hand again with allowing the jury to reach certain assumptions or make assumptions if the evidence supports it. If it doesn't, then they're given the ranges, just as they were with frequency data for single donor stains.

And I think that's absolutely admissible under our law. These techniques of calculation are complicated as they're complicated for single stains. So I don't think there's any reason this jury cannot deal appropriately with this evidence in the same manner that they can deal appropriately with the evidence that's already been presented. I think even a simple reading by a layperson such as ourselves involved in the Criminal Justice System of the National Research Council report can see why Dr. Weir's testimony about that report and its single sentence is perfectly compatible with his testimony and the method that he described today. I think Dr. Shields was overstating it for all of us when he said that that language in the national research counsel report is unambiguous.

THE COURT: But, Mr. Clarke, doesn't any trial Judge have to be very cautious about adopting techniques and testimony that is contrary to the NRC report?

MR. CLARKE: Not at all. I think the testimony before this Court--and if I recall, the Court noted some weeks ago the fact that that report in and of itself was not only subject to controversy, but I think the Court used the term "Outdated."

THE COURT: I don't think I ever said that. I don't recollect having said that. But certainly, the case law dealing in this area often comments that the legal system is often years--a year or two behind the scientific community in these matters.

MR. CLARKE: Fortunately, in California, we see our case law going away from the National Research Council report if we can Judge anything by the last half a dozen decisions or so. So if the Court is concerned about Criminal Justice System versus the National Research Council report, I think one only needs to look at California, let alone the number of states across the country that either rejected it in terms of having any effect on admissibility or finding that things have moved away from that, and that frankly that report is now very old in an area that's moving quickly. So no, I don't think courts should be concerned about the National Research Council report playing a role and telling courts what to do. I hope that answers your question. Based on all of these reasons and again considering the nature of this hearing, it's our opinion that this Court should allow and in fact the jury should be given the benefit of conservative, but probative information about what these mixtures mean to this jury. And I think no one could state it better than Dr. Weir has today in terms of the significance of this evidence, not even incorporating the known individuals in this case which ultimately would arrive or lead to a likelihood ratio that we're not even seeking to use at this time. Thank you.

MR. THOMPSON: Well, your Honor, I think the reason that Dr. Weir's statistics are likely to be misleading in the context of the trial at this point is that the Prosecution has already framed the issues for the jury. We've already had a great deal of testimony about DNA evidence and the testimony has all been framed in terms of here's a sample and here's an individual. Is this individual consistent with this stain? Again and again, they framed it in that--using the terms "Match" or "Consistency." And when that kind of evidence is presented, it is always logically relevant to ask what percentage of the population would also be included or be excluded, which is exactly the number that the National Research Council computes. Now, Dr. Weir has asked a different question which he thinks is the appropriate question which has to do with what's the probability of selecting a specified number of individuals who could completely account for the alleles in this stain under various assumptions. And we have to make assumptions about the number of people and whether all alleles can be seen and so on. So--so what--what's happened is that the Prosecution is changing horses in mid-stream. Having conditioned the jury to expect one kind of numbers, they are now presenting a different kind of numbers that--that in fact are--are much less favorable to the Defendant. I think that the difference in the numbers is going to be very difficult to explain and I think all you have to do is read through Dr. Weir's report to see why that's so. It's very complex. It's riddled with assumptions, and the assumptions are going to be controversial. If Dr. Weir is allowed to testify under these assumptions, then the Defense will have to challenge those assumptions. For example, on stain 78, Dr. Weir is assuming for some--for some of the locuses, that all alleles from all contributors can be seen. For others, that not all alleles of all contributors can be seen. We're going to have to get into the scientific basis for that, talk about whether that assumption is valid or not valid based on the scientific evidence as opposed to other evidence in the case.

THE COURT: But aren't we sort of in this situation because the Prosecution initially wanted to say that all we want to do is say that these persons are not excluded and that's all we want to present, it's a mixture, and then the Defense says no, you've got to put on a number on it if you're going to use it?

MR. THOMPSON: Yeah. I think--your Honor, both experts--

THE COURT: Aren't we in this situation because of that?

MR. THOMPSON: Yeah. And both experts acknowledge that it would be misleading to simply say this person is not excluded and here's the frequency of this person's genotypes. Both experts acknowledge that was misleading and inappropriate. For example, in the case of Nicole Brown Simpson, who has a genotype frequency of 1 in 22,000 or something like that, but the likelihood of her being--of her being consistent with the stain is either 50 percent or so under our calculations or 1 in 77 under Dr. Weir's calculation, but much higher than the frequency. So it's--it's absolutely clear that we have to have numbers in connection with the mixtures, and the issue I think is which numbers. And I think it's very clear that the National Research Council numbers are the most appropriate ones. These are--they're the easiest to understand because they involve fewer assumptions, fewer of any assumptions. They can be presented with much simpler charts. They are consistent with the nature of the frequency data that the jury has already been conditioned to expect and so on. Now, in addition to being difficult for jurors to understand, our position is that Dr. Weir's numbers are also argumentative in that, as he acknowledges, certain assumptions need to be made about number of contributors and particularly this tricky one about whether all alleles are accounted for. Now, Mr. Clarke said well, that's fine. We'll just ask him to make a number of different assumptions. But it's clear that Dr. Weir is not going to be able to make all possible assumptions. There are an endless variation of assumptions. So necessarily the Prosecution is going to be picking and choosing among the assumptions that he comments on.

THE COURT: But I think there's only going to be two assumptions, the number of contributors and whether or not you can completely see the alleles present.

MR. THOMPSON: Well, and which--which--which databases are involved, whether--what--the racial background of the contributors.

THE COURT: But that's included in the entire range, correct, that's going to be presented?

MR. THOMPSON: Yeah. But this assumption, for example, about whether all alleles can be--can be observed, that assumption--if--he's making different assumptions at different locuses saying--

THE COURT: But let's look at stain no. 78 which is on the bottom of Ron Goldman's shoe.

DR. SHIELDS: Okay. Yeah.

THE COURT: It's consistent with his blood. It's his shoe. He's lying there in his own blood. Four feet away is Nicole Brown Simpson in a pool of her own blood. After we all agree a relatively savage attack, it's not unexpected that blood from one victim will be on the other given the proximity of the two. I mean, isn't that a pretty valid assumption that it's probably Nicole Brown Simpson's blood and Ronald Goldman's blood? Isn't that a pretty good assumption?

MR. THOMPSON: Well, the problem is, what's the likelihood of some sort of coincidental match. Excuse me.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: What's--what's truly misleading about this and really pernicious is, Cellmark's report itself--and this is Cellmark's report of December 5th--says that the additional contributor to that stain other than Nicole can't be identified. Ron Goldman cannot either be included or excluded according to Cellmark's standards. But by computing these frequency statistics in this--in the way that Dr. Weir is doing it, it's a way of roping Goldman back into the stain capitalizing on the rarity of Nicole Simpson's genotype. So that--

THE COURT: Mr. Clarke--excuse me just a second. Do you have the 78 board?

MR. CLARKE: Yes.

THE COURT: The Bundy board? Let's take a look at that.

MR. THOMPSON: There's--there's--there's little controversy that item 78 contains DNA from Nicole Brown Simpson and the--the pattern, her pattern is extremely rare. The real question is whether Ron Goldman's included too. Under Dr. Weir's method, when you ask what's the probability of both of them being there, you get an extremely low, rare number because both of them includes Nicole. So the--the inference with regard to Goldman is being bootstrapped against the rarity of Nicole Brown Simpson's pattern.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: You know, our position is that since Cellmark's report says it's inconclusive as to--as to Goldman, it shouldn't--we shouldn't be engaged in this game at all. But we think this is just a way of rescuing an inconclusive match and trying to make the evidence appear more powerful than it is.

THE COURT: Well, the fact that Ronald Goldman's blood is on Ronald Goldman's shoe, you know, the probative value of that as far as your client is concerned is not compelling. I mean, it would be expected that Ronald Goldman's blood would be on Ronald Goldman's shoe; wouldn't you say?

MR. THOMPSON: Well--

THE COURT: Given the nature of the manner in which he died. All right. Do you have any other bootstrapping concerns with any of the other samples?

MR. THOMPSON: Well, I think in all of these--

THE COURT: Because of conclusive--inconclusive results?

MR. THOMPSON: Well, I think with regard to sample 29 for example--

THE COURT: Uh-huh.

MR. THOMPSON: --when Gary Sims testified, he was speculating that--that--that maybe Ronald Goldman was part of stain 25 and one of his alleles was simply not detected. Now, it was speculative testimony, but if--if Prosecution experts are going to engage in that form of speculation with respect to 29, then I think that we would have to--and if Dr. Weir testifies to his numbers, then we'll have to explore the implications for Dr. Weir's numbers--

THE COURT: My recollection though is on 29, I did not allow the inconclusive on the board as to Goldman is my recollection. Is that correct, Mr. Clarke?

MR. THOMPSON: Well, my recollection of the testimony is, he testified that he could not tell whether Goldman was there. Either could be or--

THE COURT: All right. But I did not allow it on the board, on the results board is my recollection.

MR. HARMON: We didn't try to put it up there. It was a double negative. We didn't try to put it up there.

THE COURT: All right. Okay.

MR. THOMPSON: Yeah. So in any case. And the assumptions regarding number of contributors also involved difficulties because there's no scientific basis for determining whether a particular stain has two or three if it has more than one, for example, unless you--unless you draw conclusions from other evidence in the case. Now, the Prosecutors are--for some of the stains, are presenting assumptions of two and three. They don't present any assumption that there could be four. But look at stain 29. Under their theory of the case, there could well be four. They seem to be assuming it's--it's--it's--so--you know, so their approach requires this plethora of numbers. If you'll look at Dr. Weir's report on page 38 when we're talking about item 29, the jury with respect to the assumption of two contributors, assuming all the alleles of all contributors can be seen, which we may dispute--but under that assumption, I see one, two, three, four, five, six, seven, eight, nine, ten different numbers which range from 1 in 71 to 1 in 11,306, which is--seems a broad range and confusing. But that's not the end of it. Then under the assumption of trios or three contributors, we have a list of--a very long list, it looks about 15 numbers, ranging from 1 in 9 to 1 in 3500. And of course, then we get into the confusion factor of how the jurors are going to intergrade these different estimates together if they don't--if they're not sure how many contributors it would be. So we have--we have the 11 different numbers under the assumption of two contributors and the 15 different numbers under the assumption of three contributors, and maybe if we had to compute it under four contributors, there would even be more numbers and they would be all over the place, and the jurors have to put it together and try to understand it. It's very confusing. And I think the National Research Council report is much simpler and clearer and easily to--more easily understood intuitively. Now, if the Prosecutors want to make the point that the probability of getting a match with two people would be higher than the probability--than the percentage of people who would match, that's fine. But that's an argument, your Honor. That should not be presented to the jury--that kind of argument should not be presented to the jury in the guise of expert testimony.

THE COURT: But then you would--then Mr. Clarke would be testifying during the course of his argument as to the math behind it. That's the alternative if I accept your argument.

MR. THOMPSON: He simply makes the argument that--he simply makes the argument that--that the percentage of the population that would be included in the mixture is 50 percent. But take into account, we've got two people included in here, for example, who both--you know, who both would have to be included. And that--that's an argument. It's--it's--to--to allow the expert to come in and state that as a conclusion based upon factual assumptions that haven't been demonstrated by the evidence is--is--is argumentative in its form and it would present to the jury the impression that these conclusions have been proved scientifically when in fact they're premised on assumptions being made about the nature of the evidence. And, you know, and of course the Prosecution in its presentation controls which assumptions are chosen and which assumptions are not chosen, giving the Prosecutors the option of influencing the nature of the scientific testimony by the way they frame the questions.

None of that can happen under the National Research Council's because it makes no assumptions about these--these crucial factors. So it's simple, it's clear, it's conservative, and that's the way we--we should go. There's one other point about--about the bootstrapping issue, and that comes from Dr. Weir's tendency to slip into the language of likelihood ratios. And although the Prosecutors are--say they're not offering likelihood ratios, I heard Dr. Weir repeatedly talk about the frequencies as if they were likelihood ratios and even make the statement that these statements can be used as likelihood ratios and likelihood ratios for testing the hypotheses that he frames as contact versus no contact. The problem with that formulation--and we certainly would object to any such testimony. But to the extent Dr. Weir testifies in that mode, he is--he is again invading the province of the jury and engaging in argumentation because the implication is that the genetic evidence and the frequencies derived from it are in themselves a characterization of the likelihood of the two hypotheses, contact, no contact, when of course, as Dr. Shields pointed out, those two hypotheses, the relative likelihood depends on a number of other factors.

THE COURT: But my understanding of Mr. Clarke's offer was that it was merely going to be what is the frequency of these patterns being in pairs or in trios without any contact, no contact assumption. Just what is the frequency, what is the likelihood that we will--not likelihood. Bad choice of words in this context. But the frequency of the pattern that is shown here without any reference to the known types, without any reference to the other known facts of the case. That's my understanding of how it's going to be presented.

MR. THOMPSON: Yeah. Well, my point is only that as we heard when Dr. Weir testified, there's some slippage of language into that mode, and I think that needs to be made clear.

(Discussion held off the record between Defense counsel.)

MR. THOMPSON: One other point that Mr. Scheck brings to my attention; is that even doing it under the approach you've just outlined without no assumption, there's still a very broad range of numbers here the jury has to--

THE COURT: Oh, I agree. There's huge numbers. But then we've got huge numbers already, don't we?

MR. THOMPSON: Yeah. Yeah. But--yeah. When we have 25 to 35 different numbers which range from 1 in--1 in 9 to 1 in 11,000, what is the jury going to make of that? That's--that's difficult to understand.

THE COURT: But don't we have to assume that the jurors have some basic fundamental intelligence that they can evaluate what this is worth? If you have a statistic that's 1 in 9 to 1 in 3500 and it's a mixture and given the facts of this case, aren't they able to say yeah, it's probably a mixture?

MR. THOMPSON: Yeah. But--

THE COURT: And that's about the long and short of it; don't you think?

MR. THOMPSON: Well--but the National Research Council's method gives a way of characterizing it statistically. Doesn't depend on assumptions and so on.

THE COURT: All right.

MR. THOMPSON: Now, let me finally address this point about the general acceptance of the technique. I think it's very clear the National Research Council produced this report after a two-year study by a very distinguished scientific panel appointed for that purpose. The panel included a wide variety of scientific opinion. It was viewed by some as stacked in favor of the Prosecution because it had four or five people who had testified for the Prosecution on these issues, only one person that testified for the Defense. Nevertheless, the National Research Council, after study, issued this document. It was peer reviewed both within the National Research Council and the national academy itself and by outside reviewers. So that's an authoritative statement on the--on the issue. And I think that it's--it's--it's apparent from the testimony that the National Research Council's position is clear as to what they're recommending. I think a good--and although Dr. Weir claims it's not clear, this is a recent opinion he arrived at. In his earlier reports, he was criticizing--he was criticizing the National Research Council for taking the very position that in his most recent report, he claims that it's unclear that they're--that they're taking. So I think he--Dr. Weir knows what the National Research Council means. I think it's clear that it's unambiguous.

Now, in contrast to the National Research Council's report, which is clear and--clear and unambiguous recommendation from a distinguished panel, the Prosecution is offering a--a novel approach which, as far as we can tell, hasn't been used in any other case. It's based on an article published in England by E.N. Evett, a distinguished man. But Evett's article itself is an article describing the computation of likelihood ratios, which isn't what's being offered here. And Evett's article describes--describes how likelihood ratios could be computed so that forensic scientists can talk about the value of the evidence. Evett's article assumes that the number of contributors is known with certainty from other data in the case, an assumption that we cannot make in this case. And furthermore--I think this is the most telling--the--the lead author of the article, E.N. Evett himself, although he's using likelihood ratios to communicate with scientific colleagues, does not himself advocate that statistics be used to characterize DNA evidence. He thinks they're too confusing and that experts should simply say it's strong or weak and so on.

So--so I don't see that the Evett article provides any kind of powerful or authoritative support for the statistical methodology that's being offered here. It's a novel methodology. There is no peer-reviewed publication that supports its--its use and, you know, and I think it's--it's dangerous and has the potential to be misleading. Now, there's one final point that I'd like to make, you know, concerns--concerns what would be required in the event that you decide to admit Dr. Weir's statistics which are conditioned on all of these assumptions. If that happens, I think it's very clear under California law that the Defense would be entitled to have a--a 403 style instruction to the jury that they are to disregard any computations based on assumptions that they view as unproven. And as authority for that proposition, I'd like to cite to the case of Everett v. Everett, it's the Chad Everett paternity case. It's at 150 Cal. App. 1053.

THE COURT: Which Cal. App.? 3D?

MR. THOMPSON: Well, must be Cal. App. 3D, 1984 case. Okay. And this case includes the following language. It says: "When the relevance of evidence before the jury depends on the validity of an underlying assumption, i.e., a 50 percent chance the alleged father and mother had intercourse--" this was a paternity case of course.

THE COURT: I recollect the case.

MR. THOMPSON: Yeah. So it says: "The jury must be instructed to determine whether the assumption is valid and to disregard the evidence if it finds such assumption is invalid. The validity of such an assumption is akin to a finding of the existence of a preliminary fact," citing section 403 of the evidence code--"Where statistical evidence is derived from a formula which relies on certain factual assumptions, the accuracy of those assumptions must be determined by the jury as a preliminary fact before the statistical evidence may be accorded any weight."

Now--so this suggests that in the event that Dr. Weir's computations are--are allowed, we are going to have to have a very complex, structured set of assumptions to the jurors as to what--what they can and can't consider based on what they--they conclude adding another--adding another layer of confusion to the issue, which again would not be required under the National Research Council report because that report makes no assumptions about controversial matters.

THE COURT: Does the Everett case include an instruction?

MR. THOMPSON: Yes. The Everett case does include an instruction although it's not directly applicable because the Everett case had to do with assumptions in a paternity case. But, yes, if you look at--if you look in that case, 150 Cal. App. 1069 at note 15, I believe you'll see text of the instructions that were offered by the court in that case.

THE COURT: I'm sorry. That's note 15?

MR. THOMPSON: Yeah. Note 15 I believe.

(Brief pause.)

MR. THOMPSON: Yes. Note 15.

(Brief pause.)

MR. THOMPSON: All right. Just to conclude, the National Research Council's recommendations are simple, straightforward and safe. They don't--they don't incorporate any assumptions that are argumentative and that might invade the province of the jury and potentially be misleading. That's the approach we should use here.

THE COURT: All right. Thank you. Mr. Clarke, let me just invite one comment on an instruction, limiting instruction. Do you have any comment on that issue?

MR. CLARKE: Actually, I'd like to see Everett. My recollection is, it's a prior probability bayesian approach, frankly a likelihood ratio case, which is interesting. But I would like to see it if I could before making comment.

(Brief pause.)

THE COURT: I think it basically says before you consider this evidence, you have to make a finding that the assumptions upon which it is based is true.

MR. CLARKE: I can make one comment initially. The same is true with all the reported frequencies and frankly with much of the evidence in this case. It's always true in a criminal case. But if we may.

(Brief pause.)

THE COURT: It's at footnote 15.

MR. CLARKE: I'm sorry?

THE COURT: The instruction is at footnote 15.

(Brief pause.)

MR. CLARKE: It's interesting, your Honor, of course that relies on the 50 percent prior probability that is not a part of the calculations but--

THE COURT: No. I'm just saying a similar instruction.

MR. CLARKE: Right.

THE COURT: You have to find first that the assumptions upon which this calculation is based are in fact supported by the evidence before you should consider the evidence presented on the frequencies.

MR. CLARKE: I think in concept--

THE COURT: As simply said as that.

MR. CLARKE: In concept, there's no disagreement with that as far as certainly the jury has to be satisfied of a preliminary fact such as that. So I don't think in concept, we have any great difficulty with that.

THE COURT: All right.

MR. CLARKE: Obviously that instruction is a bit on the wordy side, but in concept--

THE COURT: That one is, yes.

MR. CLARKE: From Everett. But in concept, I don't think we disagree with that.

THE COURT: All right. All right. This debate regarding how mixtures are to be interpreted and presented to a jury or other trier of fact is based upon the NRC 1992 report, specifically the one sentence that appears at the end of paragraph 4 on page 59. This is 185-page report, and it devotes all of one sentence to the analysis of mixtures, although that particular sentence is very clear in what it says I think. I don't find it to be ambiguous. The problem is, I don't find it to be a full discussion of the issue. The NRC report at the time it was issued was a conservative compromise regarding DNA testing and its forensic applications. And although I found it of great guidance in framing the issue here, having listened to the testimony of Dr. Weir and Dr. Shields, I agree that the manner proposed by the Prosecution to present the mixture evidence is appropriate as long as it is made clear that it is based upon the two basic assumptions and that there's no reference to the known samples, that it be presented merely that Dr. Weir has the certain qualifications, that he's analyzed the data with regards to these mixtures based upon the evaluation of the databases, the ranges of frequencies are from A to Z, period, thank you very much. That should take half an hour.

MR. CLARKE: Under both scenarios, two contributors, three contributors.

THE COURT: Three contributors, four contributors. I make this finding based upon the testimony both of Dr. Weir and Dr. Shields. Looking at which is the most accurate or the more accurate analysis of the evidence, I find that the analysis offered by Dr. Weir is the more accurate and closest to what the evidence truly presents. And under those restrictions, I'll allow the testimony. All right. We'll take a break for 15--

MR. NEUFELD: Could I have clarity of your order?

THE COURT: Yes.

MR. NEUFELD: You said he's compelled to give frequencies on the assumption of two contributors and then other frequencies on the assumption of three contributors and finally on the assumption of four contributors and you're going to require they do all three of those; is that correct?

MR. CLARKE: We haven't calculated the four, your Honor. We can go on forever.

THE COURT: Oh, I know. But four I think is reasonable, especially on the Bronco. And we need to take 15 minutes to shuttle the jury down.

MR. CLARKE: Just as--

THE COURT: Also, I'm likely to give an instruction at the conclusion based upon what I told you.

MR. NEUFELD: Conclusion of the testimony?

THE COURT: Or some appropriate time when I have time to sit down and think about it some more because I had not thought of the--we had thought about instruction before.

MR. CLARKE: Just as to the four, Dr. Weir would need overnight to do those. And if you could narrow--if we can narrow down as to which samples, that would make it easier also.

MR. NEUFELD: Should be all the Bronco samples then, shouldn't it, because--

THE COURT: All the Bronco--the problem is the Bronco samples because you've clearly got at least three people arguably. So you ought to include a fourth. Let me suggest we do this. Let me suggest we start with the non-Bronco evidence where the range ought to be three, get his qualifications. Let's at least get some time in front of the jury today I would suggest. All right. We'll take 15 and we'll start with the jury. Thank you, counsel.

(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. Mr. Simpson is now present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Thompson, Mr. Neufeld--did I miss anybody--People represented by Mr. Clarke and Mr. Darden. The jury is not present. Mr. Neufeld, you indicated you had a couple matters before we invite the jurors to join us?

MR. NEUFELD: Yes, your Honor. Two matters.

THE COURT: All right. Good afternoon, sir.

MR. NEUFELD: Good afternoon. First of all, your Honor, in light of the argument that we just heard regarding the manner in which Dr. Weir intends to present frequency data, one thing is absolutely clear, and if you permit him to testify to those numbers; is those numbers do not answer the same question as appears on those boards like the Bronco board.

The Bronco board question is framed as not excluded--what percentage of the population would not be excluded, and he's answering a different question. That I think there's no dispute about. Consequently, I would ask that the Court instruct the Prosecution not to have--not to let them put these numbers in that column, but instead offer them on either another board or they can simply offer the tables in fact that Dr. Weir has. But since the Court is allowing this testimony, it indisputably answers a different question than the question posed on that board.

THE COURT: Uh-huh. Okay. And what else? You said you had two matters.

MR. NEUFELD: Yes. The second one is, your Honor, that in Dr. Weir's report, he refers to a second Cellmark database. There's a 1992 database and then he says a 1994 database. Robin Cotton only testified to the 1992 database. The only database evidence in this case is the 1992 database. This witness cannot lay the foundation to introduce a Cellmark database. That would come from Robin Cotton. Since all the testimony and all the statistics that have been offered so far for the data in this case is predicated on the 1992 database, I would ask the Court to instruct the Prosecution to limit Dr. Weir to the database that's already in evidence because there's no foundation for the other one.

THE COURT: Mr. Clarke?

MR. CLARKE: Oh, I believe we will be able to lay a very careful foundation about that database in addition to the evidence code which allows reliance on that type of material anyway. So I'm not sure where the objection is headed.

MR. NEUFELD: Well--no, your Honor. I think there is a problem and we should have this resolved right now. I honestly think that--it's Cellmark's database. They created it, they're the source of it, and it hasn't been introduced by Cellmark. And I don't believe that this witness then has the right to give expert testimony on a database which isn't in evidence. And I thought that was actually an earlier ruling of this Court on a somewhat different issue, but limiting databases only as to those databases which have been introduced in this case and relied upon by the representatives of the two laboratories, namely Cellmark and DOJ.

THE COURT: Frankly, I don't recollect having ruled upon that issue before, Mr. Neufeld.

MR. NEUFELD: Well, I don't have it in front of me. But be that as it may, even with--even without that, your Honor, I don't believe that this witness can rely on a database which is not already in evidence from the witnesses, from the laboratory whose data this witness is relying on.

THE COURT: All right. Do you have any case authority indicating that an expert witness under these circumstances is not entitled to rely upon what would otherwise be hearsay evidence in forming expert opinions?

MR. NEUFELD: It's not hearsay--it's not just hearsay evidence. It's not--it's not the data of other experts or learned treatises or anything like that. What it is is, he's actually relying on the creation of a database which has never been introduced by the party who would be most appropriate to introduce it, namely the representatives from Cellmark.

THE COURT: All right.

MR. NEUFELD: I don't see how that in any way fits into a hearsay exception.

THE COURT: Mr. Clarke.

MR. CLARKE: Well, perhaps I can indicate to the Court the basic manner this will be presented. Not only as to the mixture frequencies. That's--those are calculated based on the FBI databases, if I remember correctly. So this would relate to any comments that Dr. Weir makes about the already reported frequencies. We have no intent of having Dr. Weir, despite the fact that he's done it in his report--the Defense may want to question him about it. He has made his own calculations using some additional steps. I don't intend to introduce those numbers. All Dr. Weir will do in terms of the results that are on the board I anticipate is, he will describe the fact that those are appropriate based on his examination of not only the `92 database that Mr. Neufeld mentioned, but also the `94 database as well as part of what he has examined. Now, he's already described to this Court a fairly close relationship with Cellmark diagnostics in terms of examining the databases. So I'm not quite sure where the objection--where the legal objection is.

THE COURT: I take it to be a foundational objection at this point.

MR. CLARKE: Well, he obtains this material from Cellmark, and they explain to him very carefully what it is and he worked with it and uses it.

THE COURT: Well, I assume I'll hear that during the course--I assume this is a preliminary objection and we'll hear it.

MR. NEUFELD: Your Honor, there's a similar concern then given what Mr. Clarke just said. And I wasn't sure of Dr. Weir's testimony about this particular issue. But he also mentioned that for the--for the various PCR databases, he's relying on FBI databases. It's my understanding in this case that both DOJ and Cellmark are relying on Dr. Blake's worldwide database for the DQ-Alpha numbers. And that was what I received in discovery in fact from both DOJ and Cellmark, not FBI databases. And I would for separate reasons ask that--that that be the only DQ-Alpha database relied upon in Dr. Weir's calculations. Certainly the FBI isn't even a party to this case if you will, I mean, has not been part of this case, at least with respect to DNA typing, and there's no way that they can--that there can be any foundation for the other database. And it is my recollection, your Honor, that the Court did limit testimony to those databases that we also received discovery of. So I would have an additional objection to--

THE COURT: Boy, I don't recollect that either.

MR. NEUFELD: Well, then there's a discovery--then they'll be a discovery objection, your Honor, as well with respect to an FBI DQ-Alpha database because the only database we've been given in discovery in this case for DQ-Alpha comes from Dr. Blake's worldwide database.

THE COURT: Mr. Clarke.

MR. CLARKE: In reverse order, in Dr. Weir's February `95 report provided the Defense, it is replete with references to the `94 database from Cellmark, and I have received to my knowledge absolutely no request for that information from the Defense despite the fact that it's been in their possession four months approximately or however long that time period is. As to the DQ-Alpha results, I'm a little unclear what the legal objection is. Dr. Weir can use any database that he feels is appropriate to perform his own calculations, and when his purpose here is simply to offer an opinion about what's the reliability of these frequencies, I don't know anything that stops him from using a North Carolina database or anything that is appropriately used in his profession. So again, I think the Court's identified it as premature, but I see no legal bar at this point to that testimony.

THE COURT: All right. I agree. At this point, I think it is premature. Do you have any other comment to his objection putting the numbers on the board in the same category as the other numbers?

MR. CLARKE: I think putting them in the exact locations as the testimony will reveal what they mean, everything is accurate. These people are not excluded. Dr. Weir will carefully describe in the instances of both two contributors, three contributors or tomorrow, as to the Bronco also, four contributors. We find this combination approximately this often. So I don't see a need to create basically another addition to the board. Otherwise the jury will lose any ability to put all of these pieces of evidence together.

THE COURT: All right.

MR. NEUFELD: Your Honor, I just think that that's not what Dr. Weir is even offering these numbers for. I think it's very, very clear that that board is limited to the percentage of the population not excluded. Dr. Weir is not giving that number. He's giving a very different number. That he's acknowledged. And all I'm simply saying is, so as not to further confuse the jury on that point, that he present those numbers on a separate table.

THE COURT: All right. All right. I'm going to require the Prosecution on that board to add in the column of "Frequency" with regards to each one of the mixtures a small label to the side indicating that it is a mixture calculation that is there so that they can differentiate one from the other. But I think it's appropriate to group them in that manner since they are physically found in those locations, and to split it up on yet another board I don't think is appropriate at this point. All right. Let's have the jurors.

THE CLERK: I will be able to proceed on those boards without the labels this afternoon?

THE COURT: Yes, but I'm going to direct you to have them by tomorrow morning, perhaps vertical lettering "Mixture" on the edge.

MR. CLARKE: Your Honor, what is the Court proposing it say?

THE COURT: Mixture so we understand it's a different calculation.

MR. CLARKE: Like--

THE COURT: No. Just put in vertical letters m-I-x-t-u-r-e on a label, stick it on the side of the frequency column.

MR. CLARKE: For each--

THE COURT: Each mixture.

MR. CLARKE: Mixture.

MR. NEUFELD: Your Honor, just also in terms of scheduling, first thing I intend to get at on cross is the mixtures. Assuming they finish even at 5:00, I would like to break for the day at that point and not have to start my cross until he finishes his direct.

THE COURT: We'll see when we get there if we get there.

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: Thank you, ladies and gentlemen. Please be seated. All right. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

THE COURT: It's always my policy to explain to you why it is we get late starts. We started this morning at 9 o'clock with a hearing regarding the evidence that you're about to hear. It took longer than I thought it would as just about everything I guess these days. So I apologize to you for having kept you so long. And without further ado, Mr. Clarke, you may call the Prosecution's next witness.

MR. CLARKE: Thank you, your Honor. Dr. Bruce Weir, please.

Bruce Weir, called as a witness by the People, was sworn and testified as follows:

THE CLERK: Raise your right hand, please. You do solemnly swear that the testimony you may give in the cause now pending before this court, shall be the truth, the whole truth and nothing but the truth, so help you God?

DR. WEIR: I do.

THE CLERK: Please have a seat on the witness stand and state and spell your first and last names for the record.

DR. WEIR: Bruce Weir, B-R-U-C-E W-E-I-R.

THE COURT: All right. Do we have the right water cup? All right. Mr. Clarke.

MR. CLARKE: Thank you, your Honor. Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

DIRECT EXAMINATION BY MR. CLARKE

MR. CLARKE: Good afternoon, Dr. Weir.

DR. WEIR: Good afternoon.

MR. CLARKE: Could you describe who you're employed by?

DR. WEIR: I'm employed at North Carolina State University.

MR. CLARKE: And that's located in North Carolina?

DR. WEIR: In North Carolina in the capital city of Raleigh.

MR. CLARKE: How are you employed?

DR. WEIR: I'm a professor of statistics and genetics.

MR. CLARKE: At North Carolina State University?

DR. WEIR: At North Carolina State.

MR. CLARKE: Could you describe--well, let me rephrase that. As a professor of--and I'm sorry. You said statistics--

DR. WEIR: Statistics and genetics. I'm housed in the statistics department, but I have a courtesy appointment in genetics, which gives me certain responsibilities and rights to both those two departments.

MR. CLARKE: Could you describe for the jury, please, as far as your position at North Carolina State in that department, what are your duties?

DR. WEIR: Well, they're primarily to conduct research in the appropriate statistical methods to interpret DNA data and genetic data in more general. So primarily to conduct research. I think my appointment is something like a 75 percent research appointment. The remainder of the time I teach. I teach courses in this area and I supervise graduate students.

MR. CLARKE: If you could, Dr. Weir, perhaps pull the microphone a little bit towards you.

DR. WEIR: Excuse me.

MR. CLARKE: Could you describe for us, please, your educational background?

DR. WEIR: I have a bachelors degree in mathematics. I took that in New Zealand. I then came to this country in 1965 to North Carolina State. I did a Ph.D. degree in statistics with a minor in genetics. So I was studying both subjects. At the conclusion of that in 1969, I went to the University of California at Davis as a post-doctoral genetics student.

MR. CLARKE: Could you describe, please, a little bit about what statistics mean as far as your particular area of interest?

DR. WEIR: Well, statistics means data in essence. So it's the study of data, how we interpret data, how we might go about drawing inferences from data; and for genetic data, anything, anything that has to do with the transmission of a trait from parent to offspring, if it's a thing like height or IQ or something as simple as one of these DNA markers we've been hearing about. Any genetic entity, if it can be measured or counted, I can analyze it.

MR. CLARKE: You've described the fact that you received your Ph.D. in statistics; is that correct?

DR. WEIR: That's right.

MR. CLARKE: And is that why you are appropriately dressed as Dr.?

DR. WEIR: Yes, sir.

MR. CLARKE: You also I believe mentioned that you had what you call a minor in genetics?

DR. WEIR: Yes. The minor regarded the formal training, the course work I took and the examinations I had to pass in both statistics and genetics. My Ph.D. research was a theoretical piece of statistics, but on the genetic problem. It was to do with the way that we expect gene frequencies to behave for example. So I think the motivation of all my work is genetic, but the tools I use to do that work are statistical.

MR. CLARKE: What relationship if any does this area that you've referred to as "Genetic" have with DNA?

DR. WEIR: Well, of course, DNA underlies all of genetics. All of genetic information is DNA information. So when I say I analyze genetic data, all I'm really saying is I analyze data which essentially depends on the DNA.

MR. CLARKE: Could you describe for us, please, after--and I believe you said that while you were at the University of California at Davis, you did some post-graduate work?

DR. WEIR: That's right, yes.

MR. CLARKE: Did you then obtain employment after that?

DR. WEIR: Yes. I went back to my native New Zealand as a senior lecturer in the mathematics department and I was there for six years teaching mathematics--teaching primarily statistics actually, but continuing my research in genetics. I remained there six years and then came back to North Carolina State when I joined the faculty in 1976.

MR. CLARKE: The time you were back at school as an lecturer in mathematics and statistics in Australia, was that at a particular school?

DR. WEIR: Mr. Clarke, it was New Zealand--

MR. CLARKE: I'm sorry.

DR. WEIR: And I was on--

MR. CLARKE: That's pardonable. I'm sorry.

DR. WEIR: I was on the faculty. I was not a student.

MR. CLARKE: While you were in New Zealand at the university, what school was that?

DR. WEIR: It's called--it's Massey University, M-A-S-S-E-Y.

MR. CLARKE: When you returned to the United States to North Carolina State, what position did you take there?

DR. WEIR: I came as an associate professor and I've subsequently being promoted to full professor of statistics and genetics.

MR. CLARKE: Let's start with your position as an associate professor. What does that include? What types of duties in that position?

DR. WEIR: Oh, well, just the same as they are now essentially. At that time, my appointment was a hundred percent research, and I gradually picked up some teaching responsibilities.

MR. CLARKE: In other words, teaching actual classes with students in statistics?

DR. WEIR: Actual classes with actual students, yes.

MR. CLARKE: And then I believe you also said that you came a full professor at some point?

DR. WEIR: Yes. I think in 1981, I was promoted to full professor.

MR. CLARKE: And have you been in that position since?

DR. WEIR: Until 1992 when I got a further promotion if you like, and I have--it's a named professorship. So I have the title of a William Neal Reynolds professor of statistics and genetics.

MR. CLARKE: What does that mean, to go from a professor position to a named professor position?

DR. WEIR: Oh, it's a sign that I'm doing good work. It's a mark of Honor at our institution. It's--it's a good thing.

MR. CLARKE: And are you in that position currently, that named professor?

DR. WEIR: It's--fortunately it's a life-time position.

THE COURT: All right. Excuse me, gentlemen. Dr. Weir, if I could ask you to allow Mr. Clarke to finish answering his--asking his question before you start to answer since the court reporter is having difficulty if you talk over each other.

DR. WEIR: All right.

THE COURT: Thank you, sir. Mr. Clarke.

MR. CLARKE: Thank you, your Honor.

MR. CLARKE: During this time period from your education, that is your formal education through to the present day, have you received any honors or awards?

DR. WEIR: Yes, there have been some. I think the one I'm most proud of outside the university is the Guggenheim fellowship I received in 1983. That's a fellowship which carries a sum of money, and you get it by entering into a competition essentially. And they're quite prestigious, and we were very pleased to get that. And that enabled me to take a year away from North Carolina, and I went to the University of Edinburgh in Scotland on a year sabbatical.

MR. CLARKE: And during that time period, what type of work did you do?

DR. WEIR: Well, it was a real luxury. I didn't have any responsibilities. So I used that year to do some learning about the current DNA methodology. I needed to learn some new words as I'm sure you've been hearing here. The current DNA methods, the current molecular biology has changed over the last 10 years, and I needed to--at that time, I needed to learn a new language.

MR. CLARKE: What year was that again, this one-year fellowship?

DR. WEIR: It was `83 to `84.

MR. CLARKE: And you said that was at the University of Edinburgh in Scotland?

DR. WEIR: Yes, sir.

MR. CLARKE: Did that coincide with any events going on in the DNA world in England at that time approximately?

DR. WEIR: It turned out too, although I didn't realize at the time, not very far from where I was having my year of luxury, a Professor Jefferies was just down the road at the University of Leicestershire developing the RFLP markers that we use in forensic applications. He was in essence developing DNA fingerprints at about that time.

MR. CLARKE: As far as professional organizations or societies, are you members of any of those?

DR. WEIR: Yes. Part of my job requires me to keep abreast of developments in the field, and going along with that, I need to belong to the organizations that contain similar people.

MR. CLARKE: Can you give us some examples of such organizations that you're a member of?

DR. WEIR: Yes. I think the most relevant ones are the American Statistical Association, the Genetics Society of America and the American Society of Human Genetics.

MR. CLARKE: Are you also members of other organizations as well in the areas of statistics and genetics?

DR. WEIR: Yes. There are several others. There's one called the Biometric Society. Biometrics means the mathematics of biology. So that's very germaine to this. There's a society for the study of evolution, for example, and I think there may be some others.

MR. CLARKE: I'd like to turn your attention if I can to the scientific literature. Do you hold any positions as far as evaluating for journals or magazines whether or not scientific publications in your field should even be published in the literature?

DR. WEIR: Yes, I do. That primarily for the general genetics, which is the official journal of the Genetic Society of America. If somebody writes a paper in my area, paper that I would understand, they may submit it to me, and then I in turn send it out to other people to review it. If the reviews are favorable and if I agree with the reviews, then I can accept that paper and see that it's published. If the reviews or myself or both don't like the paper, we think it's not correct or appropriate, then we--then I reject it.

MR. CLARKE: So is this in the position of your being an editor of a particular journal such as that one?

DR. WEIR: Yes. I'm an associate editor of that journal.

MR. CLARKE: In that position then as I understand it, you not only review scientific papers in your field of expertise to determine if they are or should be published, but you also decide basically what other experts to send these manuscripts or articles to so that they can give you their input as well?

DR. WEIR: Yes. It requires me to be familiar with the work of a great many people. So I feel to have a good sense of who is working in my field and so that I can choose them as reviewers and it helps me to evaluate their own work. So this is not unusual. It's the way the peer review system works.

MR. CLARKE: Can you describe for the jury, please, some of the publications that you either act or have acted as an editor for or assistant editor?

DR. WEIR: Well, the one we just talked about in particular, it's the journal genetics. The journal of the--the journal of--the American Journal of Human Genetics, I acted in somewhat similar role though I don't have the final authority to accept or reject. The journal of theoretical population biology I am responsible for all the genetics papers in that journal and I have the authority to accept or reject papers there. The journal of heredity, I'm an associate editor. I get to choose reviewers and make recommendations, although I don't have the final authority.

MR. CLARKE: I'd like to shift your attention--and we'll return to scientific publications in just a few moments, but what I'd like to shift your attention, Dr. Weir, to is the area of presentations and lectures. First of all, in your area of expertise of statistics and genetics, have you been invited to give various presentations in the area of statistics as well as their application in the field of genetics?

DR. WEIR: Yes, I have. I think the most important way of disseminating my research is through publications. A more immediate way is to present them orally at scientific meetings, and I am invited to attend many such meetings at a local--all the way from the local high schools if you'd like on the way up to international conferences.

MR. CLARKE: And have you in the past lectured at international meetings in various locations around the world in this field?

DR. WEIR: Yes. That's one of the benefits of my job, that I get to go to many countries. That's a benefit.

MR. CLARKE: As far as this area of, again, invited presentations and meetings, do you organize or chair any meetings of that sort or individual fields within meetings such as that?

DR. WEIR: Yes. I--I organized a very large international meeting at my university in 1987 in genetics, the second international conference on quantitative genetics. It was a major undertaking. We had over 500 people from around the world. In February of this year, I organized and chaired a meeting in this state on quantitative genetics with a lot of statistics in it. Quantitative genetics is a little different from what we're talking about here. It's the kind of genetics that go along with things that we measure like height or grain yield or height of trees as opposed to things that we count like the DNA types we'll be talking about. So that was a conference I organized and chaired this year.

MR. CLARKE: Are there any further conferences, whether this year or next year, at international locations that you are involved in organizing?

DR. WEIR: Well, not organizing, but I've been invited to talk on the statistical aspects of forensic DNA at an international conference in Spain in September and again in Edinburgh in July of next year.

MR. CLARKE: In your role as a professor--and you may have described this a little bit earlier--do you supervise individuals or people who are trying to obtain their own Ph.d.s?

DR. WEIR: Yes. That's probably the most important aspect of my teaching. Teaching classes is of course very important, but the one-on-one teaching, working with a graduate student on a thesis project, working with that student from the concept of the idea through to final publication, it's time consuming, it's very important and I enjoy it very much.

MR. CLARKE: As far as--and if I can return to the area of publications in your field, have you published in the scientific literature a number of articles about statistics and population genetics?

DR. WEIR: I think all of my--all of my publications are in this general area of applying statistics to genetic data, yes.

MR. CLARKE: And would this be in the peer review scientific literature?

DR. WEIR: Oh, yes.

MR. CLARKE: And "Peer review" means again what, please?

DR. WEIR: It's the process but--that we described that I am on one end of as an editor, but when I want to give my work, I have to go through the persons from the other range. So I select a journal which I think would be appropriate, send the paper to the editorial board of that journal and hope they reach the right decision.

MR. CLARKE: And how many times or how many publications have you in fact either authored or co-authored in this field of statistics and population genetics?

DR. WEIR: It's about a hundred I think.

MR. CLARKE: Are there other types of things that you write that may be published in the scientific literature other than, for instance, peer-reviewed articles?

DR. WEIR: Well, there is another avenue for expressing our thoughts or giving some results and there are letters to the editor or commentaries or reviews. Sometimes I have been invited to write reviews of a field. For example, the population genetics issues in the forensic uses of DNA. There's a very prestigious journal, the proceedings of the national academy of sciences. The editor of that journal asked me to write a review of the issues in late 1992. So there are review articles like that and then there are letters and other--other what I call commentaries. These are pieces of writing which are published at the whim of the editor if you like, but without going through a peer review process.

MR. CLARKE: Is it correct to say that the approximately 100 scientific publications that you have had through the peer review process that you've personally authored, that it's that type of publication that forms the backbone of science?

DR. WEIR: Oh, yes. That's the way science proceeds. Science cannot proceed--we scientists cannot reach opinions other than formulating themselves and publishing and then reading other publications. The way that our body of knowledge, everything we know has to be accepted by other scientists. Otherwise it's lost, and it's only accepted on the basis of the published literature.

MR. CLARKE: Have you been involved in the writing of any books in this area?

DR. WEIR: Yes. I'm very proud of my 1990 textbook genetic data analysis. This is a compilation of a whole host of statistical methods for handling genetic data, the type of accounting data that we'll be talking about here. It's a collection of recipes if you like with the underlying methods.

MR. CLARKE: I have in my hand what appears to be a book with a gray cover entitled genetic DNA analysis. Is that the book you've just referred to?

DR. WEIR: That's genetic data analysis, yes.

MR. CLARKE: Have you been involved in--

MR. NEUFELD: I'm sorry, your Honor. Just perhaps for clarification, he said genetic DNA analysis--

THE COURT: Data. Correct.

MR. NEUFELD: And I believe the scientist corrected--thank you, your Honor.

MR. CLARKE: I thought I said data.

THE COURT: I thought I heard DNA as well.

MR. CLARKE: Have you been involved in any recent books or other publications that are--well, let me rephrase that. As far as books are concerned, have you been involved in the writing of any other books or as an editor of any of those books?

DR. WEIR: The first book I edited was involved in the genetic--in the statistical analysis of DNA sequence data. I think that was 1988. I edited the proceedings from the conference we held in Raleigh. I helped edit the proceedings of a conference held at the University of California at Davis. I'm currently preparing the second edition of genetic data analysis. Last week I had published a set of papers in the forensic uses of DNA. The collection of papers is called human identification. That was a set of papers written by authors I had selected from around the world who work in this area and included a couple of my own papers. So that was published as a special issue of a journal last week and will appear later this summer as a book.

MR. CLARKE: Is that what I have in my hand now entitled at the top Genetica, an International Journal of Genetics?

DR. WEIR: The title of the journal is Genetica. The title of the issue is human identification.

MR. CLARKE: And I believe you said this was a special issue of genetics?

DR. WEIR: That's right. That's an issue of--these journals come out periodically and they contain many articles. All the articles in that issue are the ones that I solicited, had reviewed, accepted and got published.

MR. CLARKE: Do you participate in writing any reviews of books written by others?

DR. WEIR: Oh, yes. That's the other side of the coin. I--I'm often asked by journal editors to write a review of a book to inform other scientists about books in this area, yes.

MR. CLARKE: Is that a little bit more fun?

DR. WEIR: Yes. It gets you a chance to express your feelings without going through the need to be nice to reviewers.

MR. CLARKE: Now, I would like to shift your attention if I can, Dr. Weir, to the actual testing in forensic casework in cases such as this case before this jury. Have you previously consulted in any cases--that is consulting using your expertise in the area of statistics and genetics. Have you consulted in any other cases other than this case today?

DR. WEIR: Oh, yes, I have.

MR. CLARKE: Can you tell us a little bit more about that?

DR. WEIR: Well, I'm frequently asked by attorneys to help them with the interpretation of the DNA evidence, with the statistical interpretation. I have worked with some Prosecuting attorneys. I choose not to work with Defense attorneys because I don't feel able to mount an adequate Defense. In other words, an attack on these DNA matches. So the attorney--the Prosecuting attorney will send to me the reports in the case, the reports from the forensic scientists. When I receive those reports, they always contain a lot of information about the DNA matches and along with some numbers, things like the frequency of this profile is 1 in a million, that kind of statement. So it's my job to make sure that 1 in a million is an appropriate figure.

MR. CLARKE: Let me stop you for a moment. When you said you consult with Prosecuting attorneys, but not with Defense attorneys because you feel you can't mount an attack on DNA; is that right?

DR. WEIR: Yes. I don't--I'm convinced that this methodology is sound and I should say that I'm convinced that the statistical methodology is sound. So I can't think of a way to attack that. It could be of course that if the analysis was done incorrectly, then it would be appropriate for me to appear for the Defense.

MR. CLARKE: Did you describe for us approximately how many cases that you've acted as a consultant in where you've advised attorneys about this type of technology and their specific results?

DR. WEIR: I'm not sure of the number, but I have given testimony in I think 16 cases before today.

MR. CLARKE: Can you tell us what states those have involved, if it has been more than your home state?

DR. WEIR: Yes. That's another opportunity to travel of course. I've been in this state and I've been in this city giving testimony. I've been in the states of Oregon and Washington, Illinois, Pennsylvania, Virginia, North and South Carolina, Florida.

MR. CLARKE: And in those instances, did you in fact or were you allowed to give opinions about whether or not frequency data in, for instance, DNA typing cases was presented appropriately?

DR. WEIR: Yes.

MR. CLARKE: As far as DNA typing itself, can you describe for the jury, please, how is it you're familiar, with for instance, the technologies that have been previously testified in this case, including both the RFLP typing technique and the technique that uses PCR as well?

DR. WEIR: We're talking about the technologies or the specifics of the case?

MR. CLARKE: The technologies.

DR. WEIR: Well, the technologies really go back to my days in graduate school. I've spent my career developing statistical methods for genetic data. Now, up until the early 80's, the types of genetic data we had were different to some extent from these DNA types. That doesn't really matter. All that is necessary in the first place for our analyses is that we talk about things, genetic entities which are transmitted from parent to child, and they obey all the laws of genetics. These laws are fairly simple as it turns out, but they can still lead to a very complex situation. So the theories I've been working on apply to blood groups or eye color or anything that we could count and any discrete character which we could say yes, the person has the character or no, the person does not have the character. So these methods were in place, and it turned out in the late 80's, when we had the DNA types introduced to the forensic arena, we already had the methods pretty much in place to handle that kind of data.

MR. CLARKE: In other words, methods were being developed even before DNA typing was available to evaluate characteristics that were transmitted from parents to children; is that right?

DR. WEIR: That's right, yes.

MR. CLARKE: Was that using methods such as protein typing or protein electrophoresis?

DR. WEIR: Yes. The time I was a post-doctorate at Davis, the data I was working at were the protein electrophoretic variance.

MR. CLARKE: DNA then came about in terms of its technology being available; is that right?

DR. WEIR: The DNA markers, yes.

MR. CLARKE: And these technologies--well, these DNA typing technologies then allowed you and other experts in your field then to look at the types of information or data that they were able to provide science as well; is that right?

DR. WEIR: Right.

MR. CLARKE: You described developing some methods. Was this in your work as a scientist, you developed some statistical methods to look at this type of information?

DR. WEIR: That's correct, yes.

MR. CLARKE: Does that constitute a portion--and perhaps you can tell us what--you know, how much of that portion--of the approximately 100 scientific publications that you've had published?

DR. WEIR: Well, I think all of my publications have to do with the interpretation of genetic data.

MR. CLARKE: As far as your publications, do they include articles about DNA typing results in forensics, that is in cases like this case in this courtroom?

DR. WEIR: Yes. I think since about 1990 when I became involved in this area, I've been working on appropriate methods, and my publications started I believe 1991, and it's been about a dozen I think, peer review papers, laying out statistical methods and the resulting analyses of data for the forensic DNA markers.

MR. CLARKE: Can you describe for the jury, please--of--I'm sorry--approximately a dozen or so of your publications, what did they generally deal with as far as forensic cases?

DR. WEIR: Well, the issues have changed over time as they always do in science. At the beginning, the issue was--the issue of some doubt was, can we form the frequency of a profile by multiplying together a series of numbers, is this so-called product rule an appropriate thing to do. Well, it is appropriate if all these bits of information are independent of each other, if they really are telling as a series of different things. So we needed to address at the early stage whether or not these DNA profile components were in fact independent. So we set up some tests to see if the data supported that independence.

MR. CLARKE: In a nutshell, can you describe what you mean when you use the term "We looked at independence and whether or not we could use the product rule"?

DR. WEIR: Well, it's very simple. It's embarrassing how simple it really is in concepts. The question is, we have as a single probe or single locus two pieces of information. It might be a DQ-Alpha 1.1 and 1.2, two types that we see. We would like to know how often those two types occur together in the same person. One way would be just to take a sample of people and see how many of them have that, and that's what we do.

The other way which we'll need to use in the next step is to say, well, a good estimate of that number is the number of people who have a 1.1 times the number who have a 1.2. So these are two independent bits. So they sort of exist in their own right. This one has a frequency of 10 percent, this one has a frequency of say five percent, and we can multiply them together. Now, the testing we do, it's very simple. We just go and get a sample of people and say how many people have the two types, how many would we expect have the two types if they're independent. And we compare what we observe and what we expect. And they won't be exactly the same, numbers being what they are, but providing they're not too far apart, then we'll say it looks like the data are consistent with independence.

MR. CLARKE: Is that the type of work you do or the type of analysis you perform when you're asked to look at an individual case?

DR. WEIR: Yes. I always have to do that because in the cases, there's always going to come a point where some numbers are multiplied together to end up with astonishing looking numbers. So I want to make sure that this multiplication process is valid in that case.

MR. CLARKE: Or if you're performing research for purposes of one of your scientific publications, is this the same type of information you look at that leads ultimately to your publishing an article?

DR. WEIR: Well, my articles have dealt with sort of two aspects, one with setting up the tests, you know, trying to make up some rules by which we observed the expected numbers could differ and us not be worried. So it's a little more complicated, but the idea is simple. We have to decide how close do they have to be for us to be comfortable. So that's the statistical methodology. That's the theory. So we develop and make sure those tests behave nicely. Then the second aspect is to apply them to some sets of data.

MR. CLARKE: Now, I'd like to shift your attention if I could, Dr. Weir, to Cellmark diagnostics. Are you familiar with that laboratory?

DR. WEIR: Yes, I am.

MR. CLARKE: And could you describe for the jury how is it that you are familiar with Cellmark?

DR. WEIR: Well, I've met with people from Cellmark, Dr. Cotton and some of her colleagues over the past several years at scientific meetings. Along I think it must have been 1991, when I was developing the test for independence, I was in touch with Dr. Cotton. And I'm not sure now whose idea it was, but I guess together, we came up with the idea that I should examine their databases. So I discussed with Dr. Cotton and Dr. Lisa foreman at Cellmark details of their database, and they sent me a computer disk which was just the DNA types of some hundreds of people that they had collected and typed. I analyzed the data and found--

MR. NEUFELD: Objection. Objection. This is a `92 database.

THE COURT: Overruled.

MR. CLARKE: Well, excuse me, your Honor. I think the objection was inappropriate.

THE COURT: Sustained.

MR. CLARKE: As far as just in general at this point, your relationship with Cellmark diagnostics, is it in any formal manner? Is there any formal relationship?

DR. WEIR: At this point, it's extremely formal. My university has a contract with Cellmark to analyze their data.

MR. CLARKE: And when you say "Analyze their data," could you tell us a little bit more about what that means?

DR. WEIR: The contract calls specifically for testing for independence in their databases.

MR. CLARKE: As a result of your relationship with Cellmark in terms of looking at their data, you've described how they share information with you; is that right?

DR. WEIR: Yes.

MR. CLARKE: And I believe you described they shared a disk with one or more of their databases?

DR. WEIR: The way of transmitting the data is on a computer disk. The list of data is too extensive for me to have to type it into a computer.

MR. CLARKE: That's one way of their providing it to you?

DR. WEIR: Yes.

MR. CLARKE: And is that in fact the most convenient way for your purposes?

DR. WEIR: Well, it's the only accurate way. They also give me a computer printout. And I suppose I could type it in, but there is considerable chance of making an error if I did that.

MR. CLARKE: What databases have they provided to you for your opportunity to examine them?

DR. WEIR: Several. In 1991, they provided what was their current forensic databases consisting of people classified as Caucasian, African American or Hispanic. They--it was just the African American and Caucasian first. The Hispanic came a little later. Last year, they sent me further databases they had collected through their paternity testing program. Each paternity case of course involves three people, a mother, a child and an alleged father. So there's a lot of information they get in the course of their paternity business. And the paternity databases are specified according to Caucasian and African American. They've also sent me their PCR databases. Oh, excuse me. The--the first ones I described were the RFLP, and they've also sent me PCR databases with the expressed request I test them for independence.

MR. CLARKE: When you stated that you received in 1991 databases for I believe Caucasians and African Americans and then later received Hispanic database material from Cellmark--

DR. WEIR: Yes.

MR. CLARKE: --is there a title that we can apply with the year perhaps to that set of three databases?

DR. WEIR: Well, I've come to call those the `92 databases, the 1992. And the--the results of my analyses on the Caucasian and African American were published in a peer review paper in 1992 in the American Journal of Human Genetics.

MR. CLARKE: All right. Perhaps you can describe that a little bit more fully. You ended up writing a scientific publication as a result of your looking at the `92 databases from Cellmark?

DR. WEIR: That's right. Yes.

MR. CLARKE: And is that one of the publications that is one of the approximately a hundred that you've had published in the peer-reviewed scientific literature?

DR. WEIR: That's right.

MR. CLARKE: Now, you also--and that was an RFLP database; is that right?

DR. WEIR: That was RFLP, yes.

MR. CLARKE: You also described receiving in 1994 additional databases from paternity cases; is that right?

DR. WEIR: Yes. Also RFLP, but just data a little more extensive and from a different source.

MR. CLARKE: Can we appropriately refer to that as the `94 Cellmark databases?

DR. WEIR: Yes. I would like to do that.

MR. CLARKE: And then I believe you also said that you received--and I'm not sure you gave the year--PCR databases from Cellmark?

DR. WEIR: Yes. The PCR also received last year, `94.

MR. CLARKE: Now, you are familiar, are you not, with Cellmark's methods for calculating population frequencies in cases such as this one?

DR. WEIR: Yes, I am.

MR. CLARKE: How are you familiar with that?

DR. WEIR: Because they've told me. I have held discussions with them going back to 1991, and then I've acted as an expert witness in some cases where their results were presented in court. I think the first one of those was in 1991. It was a case in this city.

MR. CLARKE: As far as these databases that you've described, you've already used the concept and you've described independence and use of the product rule. Is that important to be able to use a database?

DR. WEIR: Oh, yes. It's essential.

MR. CLARKE: Why?

DR. WEIR: The--the problem we face is to attach some kind of a number to a DNA profile, we are talking about an event which is so rare that we generally haven't seen it before. And I'm talking about the case, for example, when there's a DNA profile based on say 6 or 7 RFLP probes. When we have that many probes involved, there are so many possibilities, so many permutations of the types of the 6 or 7 probes, there's so many different profiles out there in the world that we can't expect to ever see them all. We certainly have never seen the matching one before in any specific case. But we have a problem. We would like to attach a number to that. We would like to say this is a very rare profile. And by the way, that means it occurs only once in a million people or whatever the number is. We haven't observed a million people. So we have a problem. We solve the problem by thinking a little more clearly and saying, well, this profile, this single profile which is being declared to match actually consists of several components. If it's 6 probes each with two bands, I'm talking RFLPs, there are really 12 bits to the profile. It's like a 12-point pattern. Each of those points, we have a good idea of how frequently they occur in the population based on these databases. A database of a few hundred is perfectly adequate to estimate the frequency of one of the points. And what we find as a good rule of thumb, each one of these points occurs about 10 percent, in about 10 percent of the population. Their frequencies are about 10 percent.

MR. CLARKE: That's a rough estimate?

DR. WEIR: That's rough. It's often less than that, occasionally more, but it's a nice convenient figure to think of. 10 percent is the chance of getting one of these 12 or 14, whatever it is, points. But we have a profile of the whole 12. We want a number for the set of 12. And it's not an amazing thing. We're going to multiply those 12 frequencies together. And suddenly we've gone from something we can understand very easily--

MR. CLARKE: 1 out of 10?

DR. WEIR: 1 out of 10, 10--every 10 people we come across, there's a--there will be a couple of copies of any one of these bands, any one of the specific bands. But now we're asking, how often does the whole package come together. And it's kind of embarrassing. We suddenly end up with numbers that we find very hard to understand. If you multiply 10 by itself 12 times, you've got--you've got 12 zeroes there, and we don't have a very good experience in anything with that--well, apart from the national debt I guess--any--any numbers this big. So we have gone--now, this is--it's an important number obviously and it depends crucially on being able to multiply.

MR. CLARKE: If this independence of these different characteristics didn't exist, would that mean then that the number may not be accurate, that the estimate may not be accurate?

DR. WEIR: The estimate by multiplying really wouldn't have any meaning, yes.

MR. CLARKE: Is that the type of examination that you have developed tests for, statistical tests to determine if this independence exists?

DR. WEIR: That's right.

MR. CLARKE: Is it also the case that you use tests, that is scientific and mathematical tests that have been developed by others for this type of analysis?

DR. WEIR: Oh, yes. I don't insist on doing it all myself. Some of the tests--tests that I've used in this case, for example, the tests are very old. They go back to a very famous statistician, an R.A. Fisher, writing in the 1930's. The tests he devised were good, but they were very difficult to implement. And another very prominent statistician in this country, Dr. Elizabeth Thompson, gave us in essence a trick, a way of doing the tests on the computer specifically for these databases.

MR. CLARKE: Now, you mentioned that you have actually had published, that is a scientific publication about the 1992 databases used by Cellmark?

DR. WEIR: That's right.

MR. CLARKE: What did that publication involve? Can you capsulize or give us a summary of that?

DR. WEIR: Well, it was--once again, it was very simple. I took the two databases I had at that time and I think there were four RFLP probes at that time. Cellmark had collected types from 2- or 300 African Americans and 2- or 300 Caucasians.

MR. NEUFELD: Objection. Improper foundation at this point.

THE COURT: Overruled.

DR. WEIR: So we had those databases. And then I examined the question, does each--each pair of bands at a probe, does that occur as often in people in the databases as I would expect under the assumption of independence. And then--that's one probe. Then I went to two probes, is this--when I look at two probes, each with--I can't work my fingers here. We've got two probes, one with two bands, the other one with two bands. Is a band of this probe, is it independent of a band of that probe, because we're going to end up multiplying the whole four together. So I did some tests--actually, I conducted tests that we had published previously--that weren't Dr. Thompson's tests. I had applied tests we had published about previously, applied them to the data and presented the results.

MR. CLARKE: Were you able to reach any conclusions from this analysis that you published in the scientific literature?

DR. WEIR: Yes. The conclusions were that by and large, Cellmark's databases were consistent with independence.

MR. CLARKE: And by "Consistent with independence," meaning that the results obtained from each of these probes could in fact be multiplied together?

DR. WEIR: That's right.

MR. CLARKE: Producing what I think you've referred to as a profile?

DR. WEIR: Yes. I refer to the collection of bands as a profile, yes.

MR. CLARKE: All right. We'll return to that in a little bit, but what I'd like to ask you about now, Dr. Weir, is, have you had any previous experience--let me rephrase that. You're familiar with the California Department of Justice; is that right?

DR. WEIR: Yes.

MR. CLARKE: And the fact that they perform DNA typing work in their DNA laboratory?

DR. WEIR: Yes. In a general sense, yes.

MR. CLARKE: All right. Can you tell us a little bit about your experience with the Department of Justice? And I'm referring to the California Department of Justice DNA laboratory.

DR. WEIR: Well, over the last six months, I've had several telephone conversations with a Mr. Gary Sims and obtained from him a fairly good understanding of how it is that DOJ attaches numbers to their matching profiles.

MR. CLARKE: Is there any--and you're familiar with the fact that the Federal Bureau of Investigation in Washington D.C. Also has a DNA laboratory, correct?

DR. WEIR: Yes. I've been working with Dr. Budowle from the FBI since the end of 1989.

MR. CLARKE: To what extent if any does the Department of Justice in California rely on work previously done by the FBI? And I'm only referring right now to the area of population frequencies.

DR. WEIR: Oh, they rely--it's a totally--all the numbers that DOJ generates in a case based on data collected by the FBI.

MR. CLARKE: We'll return to this case a little bit later as I mentioned, but for purposes of this question, to your knowledge, was the FBI or were the FBI databases used by DOJ in calculating their frequencies of results in this case?

DR. WEIR: Oh, yes.

MR. CLARKE: Now, you've mentioned the FBI. What type of relationship or working relationship, can you tell us a little bit more about that, have you had with them?

DR. WEIR: It's been a very close and harmonious relationship since the end of 1989. Dr. Budowle asked me to work with him in examining their databases. So he once again explained the procedures they arrived--that they used to construct their databases. Theirs was a little different from Cellmark's. They had a somewhat wider base of people at that time. They had blood--they had DNA collected from our blood banks around the country and constructed a database, just a listing of the profiles of some hundreds of people. Dr. Budowle provided me with those databases. Those were three ratio groups, Caucasian, African American and Hispanic and further subdivided into geographic region, Florida, California and Texas. He provided me with those data. I performed some different tests on those because the FBI has a different procedure from Cellmark of deciding when bands match, for example. So I analyzed those data with Dr. Budowle's cooperation and published those results in a paper published in 1992 in the journal of genetics.

MR. CLARKE: We'll return to that in just a second. But this process of obtaining databases from the FBI, was that done in a similar fashion to when the databases were provided to you by Cellmark?

DR. WEIR: That's right. They--I was--received a set of disks in the mail, yes.

MR. CLARKE: And you performed various tests on these databases?

DR. WEIR: Yes, I did.

MR. CLARKE: And that led to your publication--and I'm sorry. What year was it that you reviewed, that is authored a scientific publication about the FBI's databases?

DR. WEIR: The paper was published in 1992. It went through several revisions if you like. It was written actually I believe early in 1991.

MR. CLARKE: Just to be clear, both the publication that you authored about Cellmark as well as the 1992 publication about the FBI, do those relate to RFLP data only?

DR. WEIR: Oh, yes, they did.

MR. CLARKE: As far as your review of the FBI's databases, can you give us again a brief summary of your findings?

DR. WEIR: Yes. I found what I expected to find and I think what any population geneticist would expect to find. The databases were consistent with the various components of these DNA profiles, all being independent one from another.

MR. CLARKE: Incidentally, have there been publications by other scientists about the FBI's databases as well?

DR. WEIR: Oh, there have been several, several other people who have performed a similar role to myself, a Dr. Chakraborty for example. Should I spell that?

MR. CLARKE: I think so. Yes.

DR. WEIR: C-H-A-K-R-A-B-O-R-T-Y, from the University of Texas has performed even more extensive analyses than I have.

MR. CLARKE: Were his conclusions approximately the same or different or what?

MR. NEUFELD: Objection. No proper foundation.

THE COURT: Sustained.

MR. CLARKE: Have you in fact read the particular publication by Dr. Chakraborty?

DR. WEIR: I certainly have.

MR. CLARKE: And did it contain conclusions and opinions?

DR. WEIR: Yes, it did.

MR. CLARKE: And did you agree with those?

DR. WEIR: I did.

MR. CLARKE: Now, as far as--and I'd like to take you into individual casework such as this case. Have you before this case been involved in evaluating this data or population frequency information of other laboratories--and actually let me rephrase that if I may. I think that's confusing. As far as your looking at databases from both the FBI and Cellmark, have you looked at other laboratories' databases?

DR. WEIR: Yes. A variety of both private and state labs.

MR. CLARKE: Can you describe those, please?

DR. WEIR: Well, we've had the private Cellmark mentioned. Also, there's a lifecodes, which is a private company, genetic design, which is in North Carolina, and Roche Biomedical, private companies. State agencies, the State Bureau of Investigation in North Carolina, the South Carolina law enforcement division, crime labs in two counties in Florida, crime labs in Minnesota, Oregon, Toronto, Australia, New Zealand and United Kingdom.

MR. CLARKE: So in terms of looking at a database, that's something that you've had experience with on many occasions?

DR. WEIR: Yes, it is.

MR. CLARKE: Turning your attention now to this individual case--and you've spoken already of having conversations with I believe Robin Cotton and Gary Sims about this case; is that right?

DR. WEIR: That's right.

MR. CLARKE: Were you also provided written material?

DR. WEIR: Yes. I believe I've received all their written reports, at least the ones containing frequency estimates.

MR. CLARKE: These would be reports from Cellmark in this case?

DR. WEIR: Yes.

MR. CLARKE: Reports from the DOJ or the Department of Justice in this case?

DR. WEIR: That's right.

MR. CLARKE: Did you also receive any raw data? And by raw data, I mean something other than a formal written report.

DR. WEIR: Well, I already had the databases that both labs use, Cellmark's own databases, the FBI's databases that DOJ uses for RFLPs. And then as part of their reports, I received information on the detailed fragment lengths, the sort of the nuts and bolts of the matching profiles.

MR. CLARKE: When you say "Fragment lengths," you're referring to--and you've used the term "Nuts and bolts." Are these the actual approximate sizings of each of these bands that the jury has seen from the x-rays that we looked at some weeks ago?

DR. WEIR: Yeah. That's right. Each of those bands has a number attached to it like 1369, the estimated fragment length. So I got all those numbers.

MR. CLARKE: Were you also provided with each laboratory's estimate of the approximate frequency or approximately how often characteristics found in the various items of evidence in this case are found in various populations?

DR. WEIR: Yes. I received all those reports.

MR. CLARKE: Were you also provided with the data about the results of PCR testing in this case as well?

DR. WEIR: Yes.

MR. CLARKE: And that included the marker and I think you've already given a short example of DQ-Alpha?

DR. WEIR: That's right.

MR. CLARKE: Polymarker?

DR. WEIR: Yes.

MR. CLARKE: And that consists of more than one genetic marker; is that right?

DR. WEIR: It's a set of five markers, yes.

MR. CLARKE: And also, were you given the actual results, the typing results from use of the marker D1S80?

DR. WEIR: I was.

MR. CLARKE: From a statistical standpoint or a population frequency standpoint, when you make determinations in an individual case, do you use the actual types reported by the DNA analyst or the laboratory that's involved?

DR. WEIR: Oh, I must do, yes.

MR. CLARKE: In other words, do you ask for and want to look at, for instance, the x-rays or the photographs of typing strips so that you can evaluate what the types are that are shown?

DR. WEIR: No. I'm not qualified to do that. I have to start with the--with the information written down, the fragment length or the DQ-Alpha type from the strip. I'm not qualified to do the determination myself. I must accept what the forensic scientists say they found.

MR. CLARKE: In other words, you rely on the expertise and experience and training of the DNA analyst to determine what types and what matches exist?

DR. WEIR: That's right.

MR. CLARKE: Or what exclusions exist?

DR. WEIR: That's right.

MR. CLARKE: As far as an exclusion, do you have any interest or can you assign any frequency to an exclusion?

DR. WEIR: No. An exclusion is an exclusion and we don't want--we don't need to attach a number.

MR. CLARKE: As far as your work in this case, did you also have--and you've described a little bit about discussions with Gary Sims and Robin Cotton. Did you have discussions when you had a question about a particular result or a database used and so forth?

DR. WEIR: Oh, I did that frequently, yes.

MR. CLARKE: If there was something that you couldn't determine from the actual materials you were provided, did you have one of these telephone or in-person contacts?

DR. WEIR: Yes, I certainly did.

MR. CLARKE: As far as this case is concerned, did you then perform certain calculations and look at databases and results?

DR. WEIR: I did.

MR. CLARKE: Ultimately, did you reach certain opinions or conclusions about various factors or various areas of the frequencies that are involved in this case?

DR. WEIR: Well, I don't have opinions. I have estimated the frequencies of all the matching profiles in this case.

MR. CLARKE: As far as population frequency data--and let's take a forensic case just like this one. When a number is presented in court, whether that's a number of 1 out of 10 or 1 out of 10 million or whatever, is that a precise number?

DR. WEIR: No.

MR. CLARKE: What is it?

DR. WEIR: It's our attempt to attach some meaning to the match. The 1 in 10 will obviously be more precise than the 1 in 10 million. We are--we are attempting a very difficult task, to attach a number to a very rare event. An argument could be made that maybe we should stop doing that for 7 RFLPs or 11 RFLPs if we have a match with 22 fragments all lining up. It's inconceivable that we could come up with a number that would make any sense, meaning that we just have no experience of such an enormous number. So--but the other thing is that we will never know for sure how many people have any particular profile. We expect that by the time we get to 7 RFLP profiles, there will be very few if any other people in the world with that type. But we'll never know that.

We can't type everybody in the world. We can't even count all the people in Los Angeles. That's just not possible. We have to deal with estimates, and our estimates have to be based on the information we have available to us. And that means we have to go out and type as many people as possible. And just the practicality of that means, we'll be talking about a few hundred or a few thousand people who will be typed. Now, Cellmark in 1992 has a Caucasian database of--I don't know--300 people, and you can base an estimate on that. And we know if we had a different database of 300 people even collected under the same conditions, we would get a different answer because the answers we get are estimates of the true frequency, whatever that is, which is not known and we never will know it. So we have to be very sure to interpret these estimates as simply that. They are good estimates of a quantity, which we will never know for sure.

MR. CLARKE: As far as the databases used in this case, did you in fact look at those databases and perform some of the tests that you've described earlier?

DR. WEIR: I did.

MR. CLARKE: With what purpose in mind? Why did you do that?

DR. WEIR: Just to make sure that it was legitimate to multiply the numbers together to end up with the profile frequencies.

MR. CLARKE: Did you look at the Cellmark databases that were used in this case by Cellmark?

DR. WEIR: I did.

MR. CLARKE: Did you also look at the additional database that you received from Cellmark for 1994?

DR. WEIR: I did.

MR. CLARKE: As far as the data used by the Department of Justice, can you tell us what databases you looked at there? And I'm only talking about RFLP at the moment.

DR. WEIR: Yeah. The RFLP databases are collected by the FBI. The FBI's databases have been expanded by the addition of additional probes over time. When I wrote my 1992 paper, I think there were five probes at that time, and now there are seven in the database. So the databases have been expanded. So I examined the current version, the databases I received from the FBI this year and used them--examined the databases, checked for independence and applied them to the profiles in this case.

MR. CLARKE: As far as the PCR databases--and let's refer to those, and if you would, just describe again as you did with regard to the RFLP--did you test those databases as used by the laboratories in this case, Cellmark and Department of Justice also?

DR. WEIR: Yes. Cellmark has their own PCR databases, and they asked me the summer of 1994 to analyze them, which I did. And the DOJ's a little more complicated. They rely on several different sources of information about PCR types. They don't generate their own databases. I'm--I chose to examine an FBI database for PCR types. Those data--the database of the FBI has been described in publications by the FBI which I've reviewed. But in my--from my perspective, more importantly, I've examined that database myself. It contains the whole seven PCR types, that's DQ-Alpha, D1S80 and the five polymarkers, the whole seven loci type on the same people so that I could do tests for independence of those types.

MR. CLARKE: Does it make any difference in--and referring to these PCR markers--that you looked at a different database than Cellmark used to report their frequencies from the PCR results in this case?

DR. WEIR: Well, the difference is that I'll get a different number, just as Cellmark will get a different number if they added a single person to their database tomorrow. Every database gives its characteristic number. What we have found in this whole business over the last five years, once you start getting several loci, several probes, we can reach conclusions that a matching profile is rare, no matter which database we use. It sounds kind of strange at first sight, that we should get numbers from different--from different racial backgrounds which, although they're different, they're not often wildly different. So we get differences between racial groups, between different labs, between databases collected in different years. They're all different numbers. They're all addressing the same issue, and I don't think it matters, providing we keep in mind that what we're trying to do is to establish whether or not a matching profile is rare.

MR. CLARKE: As far as these tests that you performed on the various databases that you've just described, is there a way that you can summarize the results? And I'm talking about your examination of the databases.

DR. WEIR: Well, there's a general statement I would make. That by and large, the components of the DNA profiles in this case are independent. There are exceptions. Occasionally I will find some evidence of an apparent association, some lack of independence between parts of some of the profiles.

MR. CLARKE: When you use--you've use the term "Association." What's that mean?

DR. WEIR: Oh, association, it's--refers to the lack of independence. If the piece of DNA a person receives from one parent is somehow associated with that from the other parent, meaning that if I tell you this person has a 1.2 DQ-Alpha, if that gives you any information at all about the other type, if that makes it more likely that the next one, the other one is a 1.4, then we have associated fragments. Now, we wouldn't expect that to be the case in these DNA markers, which as far as we know, don't have any effect on us. They don't affect our health or well-being. So we expect them to be independent. We don't expect people to marry based on their DNA types, we don't expect the two parents to have associated types and we don't expect them to transmit associated types to their children.

So when we get a database, we expect to find that the two bits are independent. And by and large, that's what we find. Not a hundred percent of the time. Occasionally we find that a particular pair of types will occur more often than we expect. Sometimes it will occur less often. And when I say "More often," I mean statistically, significantly more often.

MR. CLARKE: Now, was that the case--as far as the conclusions that you've just described where you've described sometimes you see this association, was that the case in your analysis of the databases used in this case?

DR. WEIR: It happens occasionally. Roughly speaking, it happens about five percent of the time, when I do a test, I will find an apparent departure from independence.

MR. CLARKE: What does that mean? What steps do you take?

DR. WEIR: Well, I don't think it means anything. It's the nature of what we do. When we do a test, when we look for independence, we don't know the answer. We don't know if they're independent or not. We don't know for sure. We're going to go through a procedure. We're going to do a test as I described, comparing observed and expected and end up making a statement.

Before we even do it, we know there's a chance that we're going to make a wrong call. We devise our tests to make that chance of a narrow small. And for this particular carnivora, saying there's an association when there really isn't, but saying there is, we devise things to make sure that we'll have a narrow, which is small, and we choose the small number of five percent. So we do what is called a five-percent test. It sounds like we're making life hard for ourselves, but that's the way it is. We do a procedure. Most of the time it's fine. Five percent of the time, it says, oh-oh, there's an association here. And we don't know--when we look at that, we don't know if that's the five percent--the 1 in 20 that we would expect or if it's something really biological going on and these two bits of DNA really are--have an affinity one for the other and they're going to be transmitted to--we just don't know by looking. So we have--we don't have a problem. We just say here are two bits of DNA which are associated. They're not telling us two bits of information. We shouldn't pretend we have two matches, one at each band.

We've sort of got somewhere between one and two. So I choose to just use one of those two bands. I'm going to throw away the other band for my calculations because I can't be sure that it's another bit of information. So I'll just use one of them.

MR. CLARKE: In this particular case, did you perform calculation process--I'm sorry--perform a calculation process on various pieces of evidence?

DR. WEIR: I did.

MR. CLARKE: In doing that, did you use this approach that you just described; that when you occasionally found this association, you would eliminate one of those pieces of information to make sure you weren't overstating basically how frequent or how--approximately how frequent a match may be?

DR. WEIR: I did, yes.

MR. CLARKE: Is the Court going--

MR. NEUFELD: Objection. I believe he's overstating how rare it is.

THE COURT: Overruled.

MR. CLARKE: Was the Court going to take a break at some point?

THE COURT: 4:30.

MR. CLARKE: Very good.

MR. CLARKE: By not considering a particular fragment or a particular allele as that term has been used in this court, would that be an example of using a very conservative approach to making a frequency estimate?

DR. WEIR: Yes. It's conservative in that by--in essence, discarding, throwing away one of those matching items, we're not figuring that into the calculation. So the frequency looks to be less rare.

MR. CLARKE: When you discard or not use that one band, you're not reaching the conclusion, are you, that those items or bands are actually associated, are you?

DR. WEIR: No. It's my feeling that they're not. I can't--I don't know of a biological reason why they would be, but I don't know--I don't know what the reason is. It's just--it might be just that these particular set of 300 people in this database happen to have this particular pair of alleles more often than not. I don't--I don't attach much meaning to it, but nor can I discount that finding nor can I ignore that finding.

MR. CLARKE: The calculations that you made in this case based on the various fragment lengths if the test was RFLP or the different alleles if the test was PCR in origin, were those calculations made based on methods that you've developed?

DR. WEIR: Yes.

MR. CLARKE: Were they also based on methods that others have developed as well?

DR. WEIR: Yes.

MR. CLARKE: As far as the methods you used as well as the methods developed by others, have they been published in the scientific literature?

DR. WEIR: Oh, the methods have been published by myself and others over a long period of time, yes.

MR. CLARKE: In this calculation process, are there a series of steps that are involved?

DR. WEIR: Yes.

MR. CLARKE: Are there places along the calculation process where you have to make decisions about things?

DR. WEIR: Oh, well, there are. For example, when we find associations, we have to decide what to do. And I've described what I do is discard one of those bands.

MR. CLARKE: Are there other examples of decisions that need to be made along this process of calculating a profile frequency or calculating the frequency of matching characteristics?

DR. WEIR: Well, there are--through the whole chain of things right from the time when the forensic scientist has to declare a match up to the final answer comes, there are a series. So there's a watching criteria. And that's really beyond my expertise. I'm sure you've had it described. But the labs have a rule by which they'll say two RFLP fragments are close enough together that they match. They won't be exactly the same length, but they'll be so close that they look to be matching. And now--so the question, as I said, these types occur 10 percent of the time, that's overstating--oversimplifying it a little bit. Supposing we had a fragment length 1369 basis and we went out and looked at a thousand people, looked at all their bands. Chances are, we won't see any band of 1369. The possible range of band lengths is so enormous, there are so many thousands of different types, we won't see them all. So what we do is, we'll say well, how many times are the bands close to that one occur in the database. How many--Cellmark says how many occur in a floating bin around that database. So we have--it's--it's a decision on how to attach a frequency. There are other ways of doing it. That's what I'm trying to say. There are other ways. This is a conservative procedure.

MR. CLARKE: In other words, there isn't simply one method that's necessarily or necessarily needs to be followed by every laboratory?

DR. WEIR: No. There's not one method for doing most things in science.

MR. CLARKE: Are there other steps along the way wherein you, for instance, in your own calculation method have to make decisions? I'm referring to the approach.

DR. WEIR: I'm drawing a blank for the moment.

MR. CLARKE: All right. Your Honor, if we could take a break at this time, perhaps the witness' memory will be no longer blank about my question.

THE COURT: All right. All right. Ladies and gentlemen, we're going to take a brief recess at this time. Please remember all my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions, allow anybody to communicate with you, don't conduct any deliberations. We'll be in recess for about 15 minutes. All right. Doctor, you can step down.

(Recess.)

(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. And all the parties are again present. Deputy Magnera, let's have the jurors, please.

(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. Dr. Weir, would you resume the witness stand, please. And, Mr. Clarke, you may conclude your direct examination.

MR. CLARKE: Thank you, your Honor.

THE COURT: You're welcome.

MR. CLARKE: Dr. Weir, I think we had been discussing the fact that in this case, you also calculated frequency estimates for the various items of evidence that matched a particular individual; is that right?

DR. WEIR: That's right, yes.

MR. CLARKE: Did you also calculate frequencies, that is approximations, of how often certain characteristics that were found in mixture occur in populations?

DR. WEIR: Yes, I did.

MR. CLARKE: As a result of the examinations in this case of not only the databases that you've described earlier, but also the actual pieces of evidence and the frequencies attached to that piece of evidence that matched or was consistent with someone, did you describe those in your report as far as this same idea of approximately "1 in"?

DR. WEIR: Yes. That's a fairly convenient way of writing the numbers. We could do it one of two ways. We could say the frequency is .000 and so on or we could say it's 1 in a million. It's a little easier to think about, the 1 in a million, than write down decimal point, five zeroes and a 1.

MR. CLARKE: In other words, it's little easier in terms of understanding the math to use the term "1 in" instead of, as you've said, .0235 or whatever combination that may be involved?

DR. WEIR: It's a little easier to keep track of things. We understand the word million. It's hard for our eyes to distinguish five zeroes in a row from six zeroes. It's that kind of thing I'm talking about.

MR. CLARKE: Now, in your calculation of frequencies, when you use the methods that you have described, would your frequencies be the same as, for instance, as described on these boards by Cellmark or DOJ for various pieces of evidence?

DR. WEIR: They're not exactly the same, no.

MR. CLARKE: Why?

DR. WEIR: Well, for three reasons. The first one is, I sometimes use different databases. And as we know, as we expect different databases, we'll get different answers. The second one is, along with my estimate, I attach some measure of confidence in that estimate. As I've said already, ultimately, the answers we come up with are based on a few hundred people. That's just the way it is. It's appropriate, but that's just the way it is. A different set of people will give us a different answer. So as statistician, I need to say, here is my answer and this is how good I think the answer is. Now, we meet this concept of day. We see in the newspaper 47 percent of the people support the president on some issue plus or minus 3 percentage points. So the president feels good because he's got half the people and the opposition feels good because they've only got 44. It gives everybody room to feel good. But when we see the 47, we stick with that number, but we know whatever the true number is, it's probably going to be in this range of plus or minus 3 percentage points. And it's the plus or minus 3 which, if you think about it, is just about as important as the 47 percent. One without the other is only giving some of the stories. The plus or minus is an important concept. In statistics, we call that a range from the--from the 47 minus 3 to the 44 percent up to the 47 plus range to 50 percent, that range of 44 to 50, it's a confidence limit, confidence interval. Excuse me. It is an interval with which we have a certain confidence that includes the true answer. Well, it's the same thing here. Our measure of confidence, our confidence interval is going to depend on the data. It's going to reflect the size of the database. If we type everybody that was, the confidence limit--interval would shrink to nothing and the answer we have would be a true one. The fewer people we type, the wider becomes this confidence limit, and in essence, the less confidence we have in any specific number in that range. Now, the public opinion polls are generally based on only about a thousand people, 1200, something like that, to give the plus or minus 3 percentage points, but they apply to a single question, do you support the president, yes or no or yes, no or many. It's a single question.

What we have here is, it's compound, isn't it because the profile has say 12 bits to it. Each of the bits separately, we could do a plus or minus, and on the databases, we'll get about the same thing plus or minus 1 or 2 percentage points. When I say the frequency of a piece is 10 percent based on a few hundred people, that will be about somewhere in the range 9 to 11 percent, maybe 8 to 12. But it will be very close to 10 percent. Each of those 10 percent numbers, I have a fairly good precision on. But when I start multiplying them together, my precision kind of dies off, and I'm in--and it's kind of dramatic. It's not going to be 3 percent anymore. It's going to be about 50 percent. So when I say--when anybody says an estimate of a profile is about 1 in a million, attached to that 1 in a million is the statement or it could be as low as half a million. And now, the actual numbers vary according to the situation, but a good rule of thumb is that we--that I would divide the original number by 2, and then that division, that smaller number, which is actually a higher frequency, it's a more conservative number. That's sort of given me--it's a 99 percent confidence limit. So I do the estimates as did the other people, and I would attach to them a 99 percent confidence limit. It's just a reflection of the fact that our answer is based on a relatively small number of people.

MR. CLARKE: Is that a step you take to make sure at least to the extent you can that you're not overstating the rarity of something?

DR. WEIR: That's right. Yes.

MR. CLARKE: Is there another step or another procedure that you use?

DR. WEIR: There is another step which even further reduces the numbers that we have prepared, and this is a more recent step that's been developed over the last--probably last couple of years by myself and some other scientists in both this country and in England, and it has to do with a somewhat vexing problem in theory. Here we have a crime committed in a certain area and we're going to attach to the evidentiary items a number based on data collected from people all over the country. What relevance does that--like the FBI's data. What relevance does the FBI's data from the whole United States or at least from three different states have to Los Angeles County?

Well, I think it has a lot of relevance because I think these frequencies do not vary very much. But the point has been raised, well, what if the relevant population here is very different as far as its DNA frequencies go. Maybe people in this area or people who might be considered as potential perpetrators for any crime, maybe that set of people has this profile very commonly. Maybe the profile that's found to match occurs once in a hundred of these people. It might occur once in a million over the whole country, but that would be unfair the argument goes to give the country-wide figure when we should be talking about this specific area of the crime. So the issue is, do we have groups within the population. It's called population structuring. Well, we do of course. We know that in the U.S. Caucasian population, we have people whose backgrounds are from different European countries. We've got people of Italian descent, we've got people of Irish descent and so forth, just to make sort of an obvious example. And to some extent at least, people with those backgrounds--married people they know and maybe have similar backgrounds. So we may to some extent have preserved those differences that occur in the European countries. They may still be here.

That's the objection that has been--that's the point that's been raised. Well, it sounds like a valid point. How can we accommodate it? Well, in population genetics, we have a theory which enables us to measure the amounts of difference amongst these groups and it enables us to modify our answers, enables me, for example, to take the band frequencies from the whole country and in essence modify them. It makes them a little bit more frequent to account for the possibility that in any one group, the frequencies are a bit wider than the nationwide average. I do--I have published on that as have other people. So we have done an accommodation for the possibility of population structuring. When I do that, it reduces a number a little bit further.

MR. CLARKE: Is this an example of another step that you take to make sure that you don't overstate the rarity of matching characteristics?

DR. WEIR: That's the intention, yes.

MR. CLARKE: In a criminal case, does that then benefit a Defendant if there's been instances of matches between evidence and a Defendant?

DR. WEIR: That's right.

MR. CLARKE: Or matches between any person who may be--

DR. WEIR: In essence, it downgrades the right to be attached to any matching evidence, yes. Downgrades the number. Excuse me.

MR. CLARKE: And in fact, you calculated frequencies for these various pieces of evidence that appear to be from one person?

DR. WEIR: That's right.

MR. CLARKE: And I believe you also described the fact that you calculated approximately frequencies for what were mixtures of samples; is that right?

DR. WEIR: That's right.

MR. CLARKE: Without getting in--well, let me rephrase that. The method that you used to calculate these approximate frequencies for mixtures, what does that number reveal to us? What does it tell us?

DR. WEIR: It tells us what's the frequency. How likely is it, what's the probability or what's the chance of getting this mixed stain. There are some mixtures which, instead of having two bands or two types of the locus, have three or four. Obviously it was more than one contributor. So how likely is it that we get such a mixture if in fact there were two contributors or how likely would we get this mixture if there were three contributors. It's not different in concept at all to the single stains. We have a single stain with two bands, and we ask the question, how likely is it that we get those two bands in a person, in the one person for a single stain or in two or three people for a mixed stain.

MR. CLARKE: So for a mixed stain, you would calculate estimates of how often these combination of markers would be found if, for instance, two people were part of that stain?

DR. WEIR: That's right.

MR. CLARKE: And you did the same if three people were part of that stain?

DR. WEIR: That's right.

MR. CLARKE: Or if three different people contributed to the results that were ultimately obtained?

DR. WEIR: If the mixture, the mixed stain represents the DNA left by two or three people, yes.

MR. CLARKE: The method that you use to calculate that--and I'm just referring to the mixtures now--

DR. WEIR: Yes.

MR. CLARKE: --has that been published in the scientific literature?

DR. WEIR: Oh, yes.

MR. CLARKE: All right. Did you in fact then make these--and let's start with instances in which there were mixtures.

DR. WEIR: All right.

MR. CLARKE: And you've described the fact that you made certain calculations.

DR. WEIR: All right.

MR. CLARKE: With the Court's permission, I would like to use the first board of the Bundy crime scene results.

THE COURT: All right.

MR. CLARKE: And also with the Court's permission, I intend to elicit from the witness certain frequencies. It was my intent to just simply write them in as opposed to the witness going back and forth, if that's acceptable.

THE COURT: All right. With the assumptions--

MR. CLARKE: Yes. Yes.

THE COURT: --clearly stated.

(Brief pause.)

MR. CLARKE: Now, Dr. Weir, I'd like to if I can--and I don't know if you can see--can you see that board?

DR. WEIR: No. I have a small version. Should I look at that?

MR. CLARKE: Actually--well, yes, if you have that available.

DR. WEIR: This is the Bundy crime scene.

MR. CLARKE: Yes. You have before you what appear to be legal size or larger Xerox copies of basically what's the board before the jury at this time?

DR. WEIR: Maybe. Maybe I should check.

MR. CLARKE: Which for the record, your Honor, is People's exhibit 259.

THE COURT: All right. Mr. Neufeld, you want to examine that for a moment?

MR. NEUFELD: Thank you.

(Brief pause.)

MR. NEUFELD: Actually, I would like one, if the People could also provide a copy to the Defense.

THE COURT: Do you have any other copies of that?

MR. CLARKE: Not with me, but I think I do upstairs.

THE COURT: Perhaps the--your minions watching can bring that down.

MR. CLARKE: I'm not sure they can find it.

THE COURT: All right.

MR. CLARKE: Dr. Weir, what I'd like to do is first, as to this results board, you're referring to a document in front of you that appears to be a reduced version of the board; is that right?

DR. WEIR: That's right. It's a little easier for me to handle, yes.

MR. CLARKE: Did you have an opportunity to review that board including the numbers that are written in off to the far right?

DR. WEIR: I did.

MR. CLARKE: And does that--without comparing every detail by any means between the board, the exhibit itself and the document you have, do they appear to contain the same information?

DR. WEIR: Yes.

MR. CLARKE: What I'd like to do is direct your attention to item no. 78, which is labeled "The Ronald Goldman boot drop." Do you see that?

DR. WEIR: Yes.

MR. CLARKE: And in particular, is it your understanding that with respect to--and let's start with the RFLP results.

DR. WEIR: All right.

MR. CLARKE: --that there was observed from the use of 5 different probes 10 bands of greater intensity that were consistent with Nicole Brown Simpson and 4 additional bands that were consistent with 4 of the bands from Ronald Goldman?

DR. WEIR: Well, I need to be careful. My analyses are based on the bands. I have not gone into the relative intensities. That's beyond my area.

MR. CLARKE: All right. Then limiting what I just described to you as not including the relevant intensities, is that your understanding of the results reported by the laboratory on this test?

DR. WEIR: Yes. Cellmark has reported the mixtures--the mixed stains, and it looks like 4, 8, 13, 14 bands, 14 RFLP bands, some of which match the profile of Nicole Brown and some of which match the profile of Ronald Goldman.

MR. CLARKE: Did you as a result--and you obtained the actual lengths of these fragments so that you could make a statistical calculation of the approximate frequency that we're about to discuss?

MR. NEUFELD: Your Honor, I object to the term "Match" especially as to the bands consistent with Mr. Goldman given the "Some" offered.

THE COURT: Overruled. Proceed.

MR. CLARKE: Did you understand my question?

DR. WEIR: I received the actual band lengths in order to do calculations.

MR. CLARKE: Now, as part of this calculation process--and again, just focusing on the RFLP results--were you able to approximate or make estimates of how often these fragments would be found assuming that, first of all, two people contributed to that mixture?

DR. WEIR: Yes, I was able to do that.

MR. CLARKE: Did you also do that under the assumption that three people contributed to that mixture?

DR. WEIR: Yes.

MR. CLARKE: And under those two assumptions, you then calculated these estimates; is that right?

DR. WEIR: That's correct.

MR. CLARKE: Now, from your review of how this board basically has been described as far as frequencies, there have been ranges; is that right? In other words, using simply the item above 78, number 56, there is written in under frequency 1 in 48 to 1 in 610; is that right?

DR. WEIR: Yes. Those will be the estimates based on different databases, yes.

MR. CLARKE: And in fact, more than one database is used because there's more than one major racial group; is that right?

DR. WEIR: Well, Cellmark has three databases. They were using three databases in their report, yes.

MR. CLARKE: When you calculated the frequencies of these mixtures--and again, assuming two persons, two people contributed to item 78, and then we'll also have you describe it under the consumption three people contributed to 78--are you able to give us the same types of ranges for these combinations of characteristics?

DR. WEIR: Yes. We can give a range, once again, depending on which databases we use.

MR. CLARKE: And in fact, would the estimates be different depending on which of the major groups you used?

DR. WEIR: Oh, yes, they will be different to some extent.

MR. CLARKE: Now, specifically with regard to item 78 then, if we put on the board 2 colon, would that be okay to signify your assumption that two people are in the stain?

DR. WEIR: That's right. That--that number would be the frequency with which two people in essence plucked off the street, two random people had between them profiles which would look like the mixed stain profile.

MR. CLARKE: When you perform that same estimate using three people, does it become a different number than it was with two?

DR. WEIR: It does, yes.

MR. CLARKE: Why? I'm not referring to this result in particular, but in general.

DR. WEIR: Well, it's a different question. If--the chance of getting two people with blue eyes walk through the door next is different from the chance of getting three people with blue eyes walk through the door next. So if we ask a different question, we'll get different answers.

MR. CLARKE: Okay. With regard to specifically the RFLP mixture in item no. 78, can you give us the most frequent of the estimates using the various databases for two people, that is two persons contributing to that stain, and then also the least frequent? And with the Court's permission, I'll simply write it in on the board.

DR. WEIR: I'm going to be referring to the report that I prepared and gave to you previously.

MR. CLARKE: So would it assist you to refer to the report to insure that you provide us with the exact estimates, that is the exact numbers in your estimates in your report?

DR. WEIR: Oh, it's essential.

MR. CLARKE: All right. Then could you do that, Dr. Weir, with regard to item no. 78, again under the assumption that two people contributed to that RFLP mixture?

DR. WEIR: So if there were two people, the--and I get confused when I talk about smaller and larger, but the--the--the frequency which is the more common is 1 in about 300 million.

MR. CLARKE: 1 in 300 million. And then what would be the least common or the rarest amongst that range?

DR. WEIR: Well, this is where it starts to get embarrassing, but I will say it's a 1 trillion.

MR. NEUFELD: Sorry, your Honor. I couldn't hear the answer.

THE COURT: 1 trillion.

DR. WEIR: 1 trillion.

MR. CLARKE: That's approximately 1 trillion?

DR. WEIR: Yes.

MR. CLARKE: And I'll put a circle around the two person. And I hope that sound doesn't bother anybody. Can't make the pen sign without the squeak apparently. Did you also make a similar calculation under the assumption that that mixture was a result of three people; that is, three persons contributed to that stain as shown by the RFLP results?

DR. WEIR: Yes, I did. And I'm just--I'm just checking to make sure that I got the right--I have--I don't seem to have the Cellmark figures for that item 78 for the RFLPs.

MR. CLARKE: Would it assist if we examined that a little bit later?

DR. WEIR: It--it might be faster if we just went through the two.

MR. NEUFELD: Excuse me. I'm sorry. Isn't it table 30?

DR. WEIR: Well, I'm looking at that. This is--this is based on the FBI's PCR data.

THE COURT: All right. Do you want to go through the two-person assumption?

MR. CLARKE: That's fine.

THE COURT: All right.

MR. CLARKE: Would that be easier, Dr. Weir?

DR. WEIR: Yes. I'm sorry. I don't have those right where I can see them.

MR. CLARKE: All right. While we're on item 78, there were also PCR results indicating a mixture on that same stain from Ron Goldman's boot; is that right?

DR. WEIR: That's right, yes.

MR. CLARKE: And did you perform this same calculation under the two assumptions, both that two persons contributed to those PCR results as well as three people?

DR. WEIR: Yes, I did.

MR. CLARKE: Let's just do the two first as you mentioned. Can you tell us what that range would be just for the PCR markers?

DR. WEIR: Yes. For the PCR markers--now, this is using the FBI's data. So the range goes from 1 in 500--

MR. NEUFELD: I'm sorry, doctor. That refers to what table?

DR. WEIR: Oh, I'm sorry. 21C.

MR. CLARKE: 1 in 500?

DR. WEIR: 1 in 500 to 1 in 120,000. Now, I do have the three contributors for the PCR stain.

MR. CLARKE: All right. Then perhaps let's go through that. And that's again under the assumption that three persons contributed to this stain; is that right?

DR. WEIR: That's right. Watch the frequency with which three people unknown to us--we don't know who these people are or what their types were. But just the chance of drawing these people at random.

MR. NEUFELD: I'm sorry, your Honor. May I just approach the witness? I just think he missed something on his table.

(Discussion held off the record between the Deputy District Attorney, Defense counsel and the witness.)

DR. WEIR: Yes. Excuse me, Mr. Clarke. The--the PCR result is 1 in 285.

MR. CLARKE: All right.

DR. WEIR: Thank you, Mr.--all right.

MR. CLARKE: I'm going to give that a try. Bad try.

MR. CLARKE: Perhaps we can put a patch over that at a convenient time, your Honor.

THE COURT: Yes.

MR. CLARKE: Is it 1 in 285 to 1 in 120,000 approximately?

DR. WEIR: Yes.

MR. CLARKE: Okay. Let's turn, if we can then, to the assumption that three people contributed to that stain.

DR. WEIR: That's right. So we're going to get a different answer because we're talking about a different scenario here. Three people, three people randomly, and this is from the--any three racial background. The most common frequency is 1 in 60.

MR. CLARKE: 1 in 60?

DR. WEIR: Yes.

MR. CLARKE: All right.

DR. WEIR: And the most--the least frequent is 1 in 490,000.

MR. CLARKE: 490,000?

DR. WEIR: Yes.

MR. CLARKE: First of all, Dr. Weir--and you've described why there is this difference between two and three people; and that's basically under one situation you're assuming two people contributed to that stain?

DR. WEIR: That's right. That's right. Yes. Well, we certainly know that there was not one contributor because there are more than two alleles, the probes.

MR. CLARKE: And the second assumption is that three people led to obtaining those results or contributed to that mixture?

DR. WEIR: That's right.

MR. CLARKE: As far as the differences--and let's use the last one that you just described, which was from 1 in 60 approximately to 1 in 490,000. Why is there that difference?

DR. WEIR: Because these PCR markers, the alleles in this mixed stain have very different frequencies in the different racial databases.

MR. CLARKE: In other words, there is some at least difference that's enough to create this difference from 60 to 490,000 because characteristics at these genetic markers different among racial groups?

DR. WEIR: That's right. Yes.

MR. CLARKE: Okay. Perhaps we can--what we'll do is return to item 78 once you've had an opportunity to re-examine as to three contributors.

DR. WEIR: Thank you.

MR. CLARKE: What I would like to call your attention to next is a particular results board dealing with the glove found at Rockingham. Are you familiar with that board?

DR. WEIR: I think not only am I familiar, I could probably find them.

MR. CLARKE: And do you have one of those similar ledger size sheets that appears to be a Xerox of what's contained on what will shortly be the glove results board?

DR. WEIR: Yes, I do.

(Brief pause.)

MR. CLARKE: For the record, your Honor, the exhibit that we've placed up is People's exhibit 272.

THE COURT: Thank you.

MR. CLARKE: B it appears.

(Brief pause.)

MR. CLARKE: First of all, with regard to this board, you not only produced a report, you also produced an addendum; is that right, Dr. Weir?

DR. WEIR: That's right. I had done an initial analysis on the stains including the mixtures, and then subsequently I did the RFLP results.

MR. CLARKE: And did that include mixtures on various locations from what's been identified as the Rockingham glove?

DR. WEIR: Yes.

MR. CLARKE: Do you have that board--I'm sorry. Do you have that Xerox in front of you that appears to contain the same information as People's exhibit 272-B, the results board?

DR. WEIR: Yes.

MR. CLARKE: With regard to these gloves--and let's start with the RFLP results--did you calculate these mixture frequencies?

DR. WEIR: Yes, I did. And let me just make sure I can find them. (Brief pause.)

THE COURT: Mr. Clarke, do you have an extra copy of that particular page?

MR. CLARKE: Do you have the addendum, Dr. Weir?

DR. WEIR: Oh, excuse me. Yes.

MR. CLARKE: And does that addendum describe these frequencies for the mixtures that we're about to discuss?

DR. WEIR: Yes.

MR. CLARKE: Okay. Starting with--and let's start with, if we could, what's marked area G1.

DR. WEIR: Yes.

MR. CLARKE: And that would be the second result down on the chart itself?

DR. WEIR: Yes. That's right. And it's a little simpler maybe if we recognize that G1 and G3 in fact have the same profile types. I believe that's right. G1 and g--is that right? Is it--G1 and G4. Excuse me.

MR. CLARKE: So that when you give a result, I can write it on more than one stain to make it--

DR. WEIR: Yes. It looks in fact, doesn't it, that G1, G2 and G4 are the same. They have a DQ-Alpha 1.1, 1.3, 4 and possibly a 1.2. They all have a D1S80 with the 80 and the 24 alleles. So in fact, we--you will be able to write the same numbers for G1, G2 and G4.

MR. CLARKE: Okay. Why don't we deal with--would it be easier to deal with the PCR results first or the RFLP?

DR. WEIR: The RFLP is what I've got in front of me. Yes.

MR. CLARKE: Okay. Then let's start with if we can--and I'm going to direct your attention to what's marked G1. And as you've described it, it will also apply to G3 and G4 as to the RFLP results?

DR. WEIR: Yes. I think--just let me double-check that. Oh, well, excuse me. I've gotten myself confused. Those three have the same PCR types, don't they?

MR. CLARKE: Okay.

DR. WEIR: The RFLP--because the band lengths are a little bit different and also, different number of bands were present. So we'd better do them one at a time.

MR. CLARKE: Okay. Then let's start, if we can, with area G1.

DR. WEIR: All right.

MR. CLARKE: In particular, the RFLP frequency estimations under the assumption that there are two donors to that particular mixture.

DR. WEIR: So the most frequent is 1 in 6 million.

MR. CLARKE: And that range goes to what?

DR. WEIR: To 1 in 600 billion.

MR. CLARKE: 600 billion?

DR. WEIR: Yes.

MR. CLARKE: All right. And then did you also make an estimate for or under the assumption there were three contributors?

DR. WEIR: I don't think I'm going to be able to find that quickly.

MR. CLARKE: Okay. Would it be easier then to move on to G2?

DR. WEIR: Yes. Uh-huh.

MR. CLARKE: Under the assumption there were two contributors on the RFLP results, then what would the range be?

DR. WEIR: The range--the range turns out to be the same for G1. The same number of bands were visible in the mixture, and DOJ's method of doing the calculations will result in the same numbers. So it will be the range 1 in 6 million to 600 billion.

MR. CLARKE: Would it be easiest then to move on to G4 and the RFLP results under the assumption of two donors?

DR. WEIR: Yes. Uh-huh.

MR. CLARKE: Okay.

DR. WEIR: So G4 had one less matching band, and so the numbers are a little different, although not dramatically. They go from 1 in a million--

MR. CLARKE: 1 in 1 million?

DR. WEIR: Yes. 1 in 1 million up to 1 in 30 billion.

MR. CLARKE: Three zero?

DR. WEIR: Yes.

MR. CLARKE: 30 million?

DR. WEIR: 30 billion.

MR. CLARKE: Oh, I'm sorry. 30 billion.

DR. WEIR: That's the frequency with which two people would have that particular mixture.

MR. CLARKE: All right. Would it be easier to move on to the PCR results for--

DR. WEIR: For the glove bottoms, yes.

MR. CLARKE: All right. And perhaps we can start with G1.

DR. WEIR: All right. I have--I have the--for item G1, I have the two and the three where I can get at them.

MR. CLARKE: Just tell me when you're ready.

DR. WEIR: Ready.

MR. CLARKE: Okay. Let's start with G1, and just the PCR results, again under the assumption that two people contributed to that mixture.

DR. WEIR: Right. Now, of course, these numbers are quite different. The RFLPs were based on six although based on several RFLP probes, and there's only two of the PCR probes used.

MR. NEUFELD: Doctor, which table are you referring to?

DR. WEIR: Oh, excuse me. I'm sorry. 25C and 30.

MR. CLARKE: In other words, with regard to these items of the glove, there are just, as far as PCR is concerned, results from two markers, DQ-Alpha and D1S80?

DR. WEIR: That's right.

MR. CLARKE: Is that then less information to go on as far as calculating a frequency estimate for these mixtures?

DR. WEIR: That's right, yes.

MR. CLARKE: Under the assumption that there were two contributors as far as these two PCR markers are concerned, can you give us the range of frequencies?

DR. WEIR: Yes. The most frequent is 1 in 600 and the least frequent is 1 in--it's 11,000.

MR. CLARKE: Is it convenient to do the three assumption, that is the assumption three persons contributed to this stain?

DR. WEIR: Yes. If there were three people, the chance of getting that mixture would range from 1 in 400.

MR. CLARKE: All right.

DR. WEIR: Up to 1 in 36,000.

MR. CLARKE: And again, these differences, as far as the range is concerned for 400 to 36,000, that's because of the differences in how often we see these genetic characteristics or types in different racial categories?

DR. WEIR: That's right. The PCR allele frequencies can be quite different amongst the three--amongst the various racial databases.

MR. CLARKE: The numbers you've just given us as far as G1 is concerned for PCR, will they be the same for G2 and G4?

DR. WEIR: Yes. Yes, they will be.

MR. CLARKE: And with the Court's permission, I'm going to fairly quickly write those in.

THE COURT: Yes. Thank you.

DR. WEIR: And that applied--that applies to either two or three contributors. The PCR profiles were the same, the same alleles. So the answers are going to be the same.

MR. CLARKE: Now, I've written down for G2 under PCR and the assumption of two persons 1 in 600 to 1 in 11,000, and for three contributors, 1 in 400 to 1 in 36,000?

DR. WEIR: Yes.

MR. CLARKE: Are those correct?

DR. WEIR: That's correct, yes.

MR. CLARKE: And I should do the same for G4?

DR. WEIR: That's right.

MR. CLARKE: I've done that, your Honor, for the record.

THE COURT: All right. Thank you.

MR. CLARKE: Dr. Weir, while we're on the glove board, can we look at the remaining areas--well, no. Excuse me. If we could, could we turn to the PCR results on G3?

DR. WEIR: Yes. I'd like to do G3 and G9 together because the PCR determinations were the same for those two.

MR. CLARKE: G3 and G9?

DR. WEIR: Right.

MR. CLARKE: Okay.

DR. WEIR: So the most frequent calculation is--for two people, it's 1 in 3900.

MR. CLARKE: All right.

DR. WEIR: To 1 in 22,000. That was table 26C.

MR. CLARKE: Make sure I have this correct. For PCR, on both G3 and G9 and the assumption that two contributors made up the stain, the range is from 1 in 3900 to 1 in 22,000 approximately?

DR. WEIR: That's right.

MR. CLARKE: What about three contributors?

DR. WEIR: The three contributors for either of those two mixtures, the range is from 1 in 9,000 to 1 in 150,000.

MR. CLARKE: 1 in 9,000 to 1 in 150 thousand for three contributors on G9 and G3, right?

DR. WEIR: That's right.

MR. CLARKE: Would it be convenient to turn to G10?

DR. WEIR: Yes.

MR. CLARKE: And if there are other areas to be treated similarly--

DR. WEIR: G10 had the same profile as another evidentiary item. That was number 31. And I'm looking at table 33C.

MR. CLARKE: Well, we'll return to that--

DR. WEIR: Excuse me.

MR. CLARKE: --as that's I believe on a different board. But if we can just stay with the glove board.

DR. WEIR: Yes. I'm sorry. For G10, for two contributors, the chart that two unknown people would have that mixed stain goes from 1 in 3900--

MR. CLARKE: All right.

DR. WEIR: --to 1 in 19,000.

MR. CLARKE: Assuming three contributors.

DR. WEIR: Then the numbers would go from 1 in 4600 to 1 in 71,000.

MR. CLARKE: From 1 in 4600 to 1 in 71,000; is that right?

DR. WEIR: That's right.

MR. CLARKE: And these are, with regard to G10, PCR markers only; is that right?

DR. WEIR: That's right.

MR. CLARKE: What would be the next convenient--

DR. WEIR: I believe I have--G12 and G14 seems to be the same--the same--the same in the sense that they both have a D1S80 showing alleles 18 and 24.

MR. CLARKE: Now, with regard to--and you just described--I'm sorry--area G12 and what else?

DR. WEIR: 14.

MR. CLARKE: And G14. The frequencies that you estimated for these assumed two contributors and assumed three contributors are as a result of just one PCR marker; is that right?

DR. WEIR: Just D1S80, yes.

MR. CLARKE: Okay. Then have you calculated an approximate frequency of how often this combination of markers would be found assuming two contributors?

DR. WEIR: Yes. For the two contributors, it would go from 1 in 6 to 1 in 180, one eight zero.

MR. CLARKE: And that would be true for G14 also?

DR. WEIR: Yes.

MR. CLARKE: Why are the numbers you've just described--1 in 6 is a fairly common number; is that right?

DR. WEIR: That's right. Uh-huh.

MR. CLARKE: Why is that the case with the results on G12 and G14 just from looking at the actual results of this PCR test?

DR. WEIR: Now--would you rephrase that?

MR. CLARKE: Sure.

DR. WEIR: Excuse me.

MR. CLARKE: In terms of these numbers you've just described, 1 in 6 to 1 in 180--

DR. WEIR: Right.

MR. CLARKE: --those appear to be more frequent certainly than most if not all of the numbers you've reported so far?

DR. WEIR: That's right. Because this is only based on only two matching alleles. There's only two alleles we have to account for instead of accounting for a larger number. There's only two things we have to say. These two alleles are contained in the profiles of two people or three people.

MR. CLARKE: In other words, there's less information to work from?

DR. WEIR: That's right.

MR. CLARKE: Did you also calculate approximations assuming three contributors to these stains?

DR. WEIR: Yes. For three contributors, the frequency ranges from 1 in 7 to 1 in 1700.

MR. CLARKE: And that's also true for G14?

DR. WEIR: Yes.

MR. CLARKE: Would G11 be appropriate to look at now?

DR. WEIR: Yes. G11 and G13 have the same--and I'm looking at table 27A. This is also a D1S80 profile, and I see on the board there are three people not excluded, but there are three alleles showing the D1S80 in this mixture. Three alleles could have been contributed by two people or three people or a larger number. They could not have been contributed by one person. If there were two contributors to the stains 11 and 13--I see. I've got the table Mr. Neufeld labeled--this is table 27C. The numbers will go from 1 in 14 to 1 in 300 for two contributors.

MR. CLARKE: On G11, 1 in 14 to 1 in 300 assuming two contributors?

DR. WEIR: That's right.

MR. CLARKE: And that would then be the same for G13?

DR. WEIR: That's right.

MR. CLARKE: And then what about three contributors, assuming that?

DR. WEIR: The three contributors, the frequency would range from 1 in 7 to 1 in 1300.

MR. CLARKE: Okay. With regard to those portions of the glove from G1 on down, have we completed the mixtures?

DR. WEIR: I think so. Yes.

MR. CLARKE: Could we see you for just a moment at sidebar?

THE COURT: Mr. Neufeld.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the afternoon at this time. Please remember all my admonitions to you; don't discuss the case amongst yourselves, don't form any opinions about the case, allow anybody to communicate with you, don't conduct deliberations on the case until the matter is submitted to you. And, counsel, we will start tomorrow morning promptly 9 o'clock. All right. Dr. Weir, tomorrow morning, 9 o'clock. Thank you, sir.

(A conference was held at the bench, not reported.)

(At 4:35 P.M., an adjournment was taken until, Friday, June 23, 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 Thursday, June 22, 1995

Volume 173 pages 33121 through 33252, inclusive

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APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

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

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I N D E X

Index for volume 173 pages 33121 - 33252

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Day date session page vol.

Thursday June 22, 1995 A.M. 33121 173

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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

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CHRONOLOGICAL INDEX OF WITNESSES

PEOPLE'S (402) Witnesses direct cross redirect recross vol.

Weir, Bruce 33134GC 33195T 33250GC 173 (402)

Shields, 33255T 33285GC 33308T 33314GC 173 William (402) (Further) 33315T

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ALPHABETICAL INDEX OF WITNESSES

WITNESSES direct cross redirect recross vol.

Shields, 33255T 33285GC 33308T 33314GC 173 William (402) (Further) 33315T

Weir, Bruce 33360GC 173

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EXHIBITS

PEOPLE'S for in exhibit identification evidence page vol. Page vol.

407 - Curriculum vitae 33134 173 33149 173 of Dr. Bruce Weir

408 - 49-page report 33161 173 33193 173 of Dr. Bruce Weir entitled "Statistical interpretation of the DNA evidence"

408-A - 5-page report 31161 173 33193 173 of Dr. Bruce Weir entitled "Statistical interpretation of the DNA evidence - addendum"

409 - 1-page document 33172 173 33193 173 entitled "Percentage of population included in LAPD no. 29 - Bronco steering wheel

410 - 1-page document 33184 173 33193 173 entitled "Percentage of population included in stain no. 29 - Bronco steering wheel

411 - 7-page commentary 33250 173 33251 173 by Ian W. Evett entitled "A guide to interpreting single locus profiles of DNA mixtures in forensic cases"