Department no. 103 Hon. Lance a. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Bailey, Mr. Thompson, Mr. Neufeld, Mr. Scheck. The People are represented by Mr. Clarke, Mr. Darden, Miss Kahn, Mr. Harmon. The jury is not present. Counsel, anything we need to take up before we invite the jurors to rejoin us?
MR. NEUFELD: Just one matter, your Honor.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Although I expected to receive the statistical statements regarding four-contributor frequencies for the Bronco last night so we could evaluate them prior to commencing cross-examination this morning, I did not. In fact, I just received them a few minutes ago when I walked into Court. There is one significant omission from this report or from these computations which we were given with respect to the three-contributor computations, and that is the underlying table. All that is expressed on this one page is the low number and the high number, as opposed to the spread of numbers reflected in table 30 for 3. I have asked Dr. Weir to provide us with that data. He said it is a--one long page of printout and he will be able to--he is shaking his head no. Maybe we can get some clarification on that.
THE COURT: Mr. Clarke.
MR. CLARKE: First of all, your Honor, Dr. Weir worked on these additional calculations until midnight and also got up before 6:00 a.m. to work on them as well, so needless to say, he has been hard at work and producing them as fast as humanly possible. As to this additional page that Mr. Neufeld seeks, that would require Dr. Weir to actually produce this table and it is not simply printing it out. He would actually have to perform the calculations necessary to produce this table that Mr. Neufeld has described. That is the reality of what it will take. It will take some considerable work. That is where we stand.
THE COURT: All right. What do you have, the range computations similar to the 2 and 3 potential contributors?
DR. WEIR: Yes. Well, the testimony is prepared, yes.
MR. NEUFELD: Judge, to actually do that range he had to prepare the calculations I'm talking about which is reflected in table 30 for three contributors. So we are asking that we be given the same, and especially given the fact that there is a substantial possibility that we will not finish the cross-examination this morning and it does continue until Monday morning, I'm going to want the weekend to evaluate that data.
THE COURT: The problem is, if he hasn't computed the data and if it doesn't exist, then how can I order its production?
MR. NEUFELD: I don't understand how he could not have computed the data because the only way one can arrive at the range of frequencies is to actually calculate the frequencies.
THE COURT: Doctor, how do we come up with that without doing that?
DR. WEIR: I have obviously done the calculations. I have not tabulated them. This is an intermediate step in my program. The program does a lot of calculations and then looks for the smallest and largest. I could compile them. It would take a couple of hours' work to put all this information together in the tabular form and I will not be working tomorrow.
THE COURT: When can you make that available to Mr. Neufeld in its raw form?
DR. WEIR: By about nine o'clock Sunday evening. I would have to work on it on Sunday.
THE COURT: Is it something that you can just download from that particular portion of the program?
DR. WEIR: I can do it. I can rerun the program, and constructing the table is actually almost as much trouble.
THE COURT: I'm not asking you to construct a table; I'm just asking you if the calculation--?
DR. WEIR: I could print those out, yes.
THE COURT: That can be printed out?
DR. WEIR: Yes.
THE COURT: When can we do that?
DR. WEIR: I can do it on Sunday.
MR. NEUFELD: Right, and just save for the calculations, the same way it does in table 30, whether it is Caucasian, Hispanic, African American, whatever. The only other thing I would ask for, your Honor, which he did do for two donors but he did not do for three donors or four donors is he actually calculates the number of--of potential pairs. He did that for his two donor numbers in the report, but he didn't do it for three donors or four donors. And since all of his numbers are predicated on having the correct number of three-donor trios and the correct number of four-donor quads, if you will, we need that as well so that we can confirm or reject his hypothesis. There is no way we can simply look at a number and know if he did it correctly unless we look at the underlying data to see how he arrived at those numbers.
THE COURT: Does that data exist, Mr. Clark?
DR. WEIR: Not presently. I can generate it.
MR. CLARKE: The difficulty is, your Honor, is the Defense is now asking Dr. Weir to perform things.
THE COURT: Do additional work. That is why asked Dr. Weir does that information exist. He says yes, that can be printed out.
MR. CLARKE: Very well.
THE COURT: They are entitled to have that information. I'm not asking him to do any additional work.
DR. WEIR: The second item would require more work.
MR. NEUFELD: When can this all be--
DR. WEIR: On Sunday. I'm not going to work tomorrow. I will start work at noon on Sunday and I will give it to you as soon as I have completed it. I'm quite tired.
THE COURT: As we all are and we are all glad it is Friday. All right.
MR. NEUFELD: Thank you.
THE COURT: Deputy Magnera.
MR. CLARKE: Just for the record, the Court requested that those labels be placed on as to the word "Mix" and I have put those to the right of the "Mixture" column for each of the frequencies.
THE COURT: All right. Thank you. Let's have the jurors, please.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: Dr. Weir, would you resume the witness stand, please.
Bruce Weir, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: All right. Good morning, Dr. Weir. Doctor, you are reminded, sir, you are still under oath. And Mr. Clarke, you may conclude with your direct examination.
MR. CLARKE: Thank you, your Honor. Good morning again, ladies and gentlemen.
THE JURY: Good morning.
DIRECT EXAMINATION (RESUMED) BY MR. CLARKE
MR. CLARKE: Dr. Weir, good morning.
DR. WEIR: Good morning.
MR. CLARKE: Just a few more frequencies to report. And what I would like to have you do, Dr. Weir, is return to the Bundy crime scene results, in particular item no. 78, if that would be acceptable.
DR. WEIR: That will be fine.
(Brief pause.)
MR. CLARKE: With regard to that particular item--and I believe yesterday you described approximately how often this combination of RFLP frequencies would be observed assuming that two persons contributed to a mixture with regard to that boot drop stain; is that right?
DR. WEIR: That's right, yes.
MR. CLARKE: Can you describe for us also the approximate frequency that those genetic types would be found if that stain consisted of three donors or three contributors?
DR. WEIR: Yes, I can. The most frequent figure is it is a 1 in one million.
MR. NEUFELD: I'm sorry, Dr. Weir what table are you referring to, please?
DR. WEIR: This is the table on--
THE COURT: Excuse me, counsel. Would you address those comments to me, please.
MR. NEUFELD: I'm sorry, your Honor.
THE COURT: All right. Dr. Weir?
DR. WEIR: It is the table that we gave to you this morning.
THE COURT: All right. Do you have that in front of you, Mr. Neufeld? Do you have that in front of you? Doctor, what page is that?
DR. WEIR: It is a single-page table, your Honor.
MR. NEUFELD: I have that.
THE COURT: Proceed.
DR. WEIR: So the low figure was 1 in a million and the high figure is 1 in 300 million.
MR. CLARKE: I am writing in 1 in one million to--
MR. CLARKE: I'm sorry, 1 in how much?
DR. WEIR: 300 million. That is the frequency of finding that mixed stain from three contributors, three unknown contributors.
MR. CLARKE: On item no. 78 in particular, the RFLP results?
DR. WEIR: That's right.
MR. CLARKE: Now, Dr. Weir, there appears to have been added, since yesterday, on this board, and in particular next to item no. 78, a label that says "Mix."
DR. WEIR: Yes. I think that is--I think that is just to emphasize that these calculations are for mixed stain where there is evidence that there was more than one contributor to that stain and this is the frequency of getting that mixture from either looks like two or three contributors.
MR. CLARKE: And I believe, to your knowledge, we also see that label "Mix" to describe other mixed stains, most of which you have already testified about yesterday?
DR. WEIR: That's correct, yes.
MR. CLARKE: Would that be, in your view, an appropriate way to ensure that when one looks at this chart and as to any frequencies that are written to the left of the term "Mixture," that what is being described in those frequencies is approximately how often one would see these combinations of types, assuming two contributors, which is a "2" circled and then with frequencies to the right or assuming three contributors, which is denoted by a "3" with a circle and approximate frequencies to the right of that?
DR. WEIR: Yes. I think that is an accurate description. I guess we could have also put a "1" colon with the single stains. Those all assume one contributor.
MR. CLARKE: All right. Very well. Now, if I could turn your attention to the glove and a few more results on that, do you have that before you now?
DR. WEIR: Yes, I do.
THE COURT: Mr. Clarke, I'm sorry, the Bundy crime scene board was People's exhibit--
MR. CLARKE: 259, your Honor.
THE COURT: Thank you. Just for the record.
MR. CLARKE: Thank you.
(Brief pause.)
THE COURT: All right. Dr. Weir, did you produce a new chart for this calculation?
DR. WEIR: I--
THE COURT: A new report?
DR. WEIR: Yes, your Honor.
THE COURT: Mr. Neufeld, do you have that? This is on the glove.
MR. NEUFELD: Yes.
THE COURT: All right. Mr. Clarke.
MR. CLARKE: Thank you, your Honor.
THE COURT: And the glove board is People's--
MR. CLARKE: Exhibit 272-B.
THE COURT: Thank you.
MR. CLARKE: Dr. Weir, with regard to this particular board, and you have at this point described a number of the results already yesterday; is that right?
DR. WEIR: That's right, yes.
MR. CLARKE: There again appear to be, and in the instance of this board, a number of labels that say "Mix" off to the right of the "Frequency" column?
DR. WEIR: Yes.
MR. CLARKE: And are those used to describe the same thing as to the term "Mix" on the previous boards, that the frequencies to the left of that word are again approximations when they are assumed to be two or three contributors to each of those particular evidence items?
DR. WEIR: That's right.
MR. CLARKE: Now, let's start with at the very top there appears to be an item number, actually they are all item no. 9, but there is one result at the very top of the board containing what appear to be DQ-Alpha results only; is that right?
DR. WEIR: Yes, that's right, uh-huh.
MR. CLARKE: In other words, that was a particular stain for which there was only one genetic marker result following the use of PCR?
DR. WEIR: That's right.
MR. CLARKE: Did you calculate an approximate frequency of again these two-contributor possibilities versus three-contributor possibilities as you did with the other stains yesterday?
DR. WEIR: Yes, I did.
MR. CLARKE: And for that uppermost stain on the results board, do you have an approximate frequency, assuming that two contributors donated that set of characteristics?
DR. WEIR: Yes. For two contributors the range is from 1 in 30.
MR. CLARKE: 1 in 30?
DR. WEIR: Yes, to 1 in 190.
MR. CLARKE: And did you perform a similar calculation, assuming three contributors?
DR. WEIR: Yes. For three the range is from 1 in 6 to 1 in 90.
MR. CLARKE: Now, with regard to the glove, can you tell us--and what I'm referring you to now are items G1, G2 and G4?
DR. WEIR: Yes.
MR. CLARKE: In particular the RFLP typing results, and yesterday we spoke about assuming two contributors, can you describe for us what those approximations would be, assuming three contributors?
DR. WEIR: Yes, I can. So the items G1 and G2 both have the same number of bands in the RFLP profiles so for item G1 and for G2 the range is from 1 in 3000 up until 1 in 10 million.
MR. CLARKE: And that would apply also to the three-contributor situation on the RFLP results on G--I'm sorry G2?
DR. WEIR: That's right, the G2, the same range, 1 in 3000 to 1 in 10 million.
MR. CLARKE: And then lastly, with regard to this board, did you make a similar calculation for G4, assuming again three contributors to the RFLP mixture?
DR. WEIR: Yes, I did. For three contributors the range is from 1 in 20,000 to 1 in 90 million.
MR. CLARKE: With regard to that range again, what is the reason that that range could be from 20,000 to 90 million?
DR. WEIR: Well, it depends on the databases used. We are assuming three contributors, all of whom are unknown to us. Any of those three can be from any racial background so that we should use any of the current databases. We don't know which to use so we use them all, we use all possible combinations, and that is just the various bands have different frequencies in the different databases.
MR. CLARKE: All right. Lastly, Dr. Weir, I would like to take you to one final board.
(Brief pause.)
MR. CLARKE: Which I believe, your Honor, is People's exhibit 260. It is labeled the "Results board" and we have described it as the results board for the Bronco.
THE COURT: Thank you.
MR. CLARKE: Dr. Weir, turning your attention to this particular board, is this another board that you have been provided basically a smaller Xeroxed version of?
DR. WEIR: Yes, it is.
MR. CLARKE: And that board or that chart that you were provided contained results as are written in currently on this board, the large chart that is here in court?
DR. WEIR: That's right.
MR. CLARKE: Can we turn your attention then to item no. 29, the steering wheel.
DR. WEIR: Certainly.
MR. CLARKE: Did you make calculations in a similar manner as you've described yesterday and this morning for various different situations in which two contributors may have provided the characteristics shown in these results or three contributors?
DR. WEIR: Yes, I did.
MR. CLARKE: Have you also, in the instance of the results from the Bronco automobile, calculated estimates for how often the characteristics would be seen in these pieces of evidence if four contributors were involved?
DR. WEIR: Yes, I have.
MR. CLARKE: Specifically with regard to item no. 29, there were results obtained from that item using PCR markers alone; is that right?
DR. WEIR: That's right.
MR. CLARKE: In other words, no RFLP results were obtained on that particular item?
DR. WEIR: That's right.
MR. CLARKE: Then using these PCR markers alone, did you calculate again for two, three and four potential contributors these same estimates of frequencies?
DR. WEIR: I did.
MR. CLARKE: And let's start, if we could, with no. 29 and assuming two contributors, could you give us the approximate frequency that those characteristics would be found?
DR. WEIR: Yes, for two the range is from 1 in 60 to 1 in 11,000.
MR. CLARKE: Did you make the same types of estimates, assuming that there were three people who provided those DNA characteristics?
DR. WEIR: Yes. For three the range is from 1 in 9 to 1 in 3500.
MR. CLARKE: 3500?
DR. WEIR: 3500, thank you.
MR. CLARKE: And then lastly, what about assuming four contributors?
DR. WEIR: Well, if we saw four we mightn't be surprised at all, the range goes from 1 in 1--
MR. CLARKE: Why 1 in 1?
DR. WEIR: Well, we have some fairly common bands in this profile and if we allow four people to contribute, it is going to be very likely that amongst the four we will see the mixture.
MR. CLARKE: So would the proper way of writing it be 1 in 1?
DR. WEIR: Yes, I think so.
MR. CLARKE: To what? What would be the other end of the range?
DR. WEIR: 1 in 3000.
MR. CLARKE: Now, when you use the term "1 in 1," that is what you are saying, that if four people were selected at random that there would nearly be 100 percent chance that they would have this combination of markers?
DR. WEIR: That's correct.
MR. CLARKE: During your attention to item 31 from the center console--and again these were results generated by PCR only?
DR. WEIR: That's right, yes.
MR. CLARKE: --did you make these same types of calculations for the DQ-Alpha marker and the D1S80 marker?
DR. WEIR: Yes, I did.
MR. CLARKE: Okay. Let's start with the assumption that there are two contributors?
DR. WEIR: For item 31 and two contributors the range is from 1 in 4700--4700, to 1 in him 19,000.
MR. CLARKE: 4700 to 19,000?
DR. WEIR: Right.
MR. CLARKE: What about assuming three contributors?
DR. WEIR: The range is 1 in 4600 to 1 in 71,000.
MR. CLARKE: 4600 to 71,000?
DR. WEIR: Right.
MR. CLARKE: And then lastly assuming four?
DR. WEIR: The range is from 1 in 1300 to 1 in 350,000.
MR. CLARKE: All right. Dr. Weir, then lastly, if I can turn your attention to items 303, 304 and 305, did you again perform this similar calculation process?
DR. WEIR: Yes, I did, and these items once again have the same profile as each other so the numbers are going to be the same for the whole three, so for item 303 and assuming two contributors the range is 1 in 1400 to 1 in 18,000.
MR. CLARKE: And that would be the same assuming two contributors for 303, 304 and 305?
DR. WEIR: That's right, yes.
MR. CLARKE: Then I will write that in on the other two.
DR. WEIR: Fine.
MR. CLARKE: Did you also perform a calculation assuming three contributors to each of these three stains?
DR. WEIR: Yes. Then there the range is 1 in 450.
MR. CLARKE: And the upper range?
DR. WEIR: 29,000.
MR. CLARKE: And lastly, assuming four contributors to each of these stains?
DR. WEIR: The range is 1 in 49.
MR. CLARKE: And the upper range?
DR. WEIR: 69,000.
MR. CLARKE: And your Honor, I have placed those numbers on People's exhibit 260.
THE COURT: Yes.
MR. CLARKE: Thank you.
THE COURT: Thank you.
MR. CLARKE: Dr. Weir, you have had an opportunity to review all of the frequencies and I'm talking about now the frequencies other than those that you've described for the mixtures over the last two days?
DR. WEIR: Yes, I have.
MR. CLARKE: And you have had an opportunity to examine the reports of the testing laboratories wherein they describe relative frequencies for those stains that appear to be from one person; is that right?
DR. WEIR: That's true.
MR. CLARKE: You have also examined the results as reported on all five of the results boards, that is, DNA results board in this case; is that right?
DR. WEIR: Yes, I have.
MR. CLARKE: You have examined those results, as well as the databases that these laboratories utilize; is that right?
DR. WEIR: Umm, yes, the FBI's. I have not examined all the data used by DOJ in their report. I have not examined the Orange County Hispanic database. When I was doing calculations I was using FBI Hispanic.
MR. CLARKE: When you performed your calculations, you utilized or used the databases from the FBI that you described yesterday; is that right?
DR. WEIR: That's right, yes.
MR. CLARKE: And as a result of your use of those databases and the specific results in this case, you produced your own approximate frequencies, not only for the mixtures but also for the stains that appear to come from one person?
DR. WEIR: Yes, I did.
MR. CLARKE: Did you compare those results that you obtained with those reported by the testing laboratories in this case, Cellmark and the Department of Justice?
DR. WEIR: Yes, I did.
MR. CLARKE: Do you have an opinion about the accuracy and reliability about--that is, of the results produced by those two laboratories in this case?
DR. WEIR: Yes. I think the results reported generated by those, they are all good estimates of the frequencies.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Thank you. I have no further questions, your Honor.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Yes, your Honor. Do you want to take five minute so I can handle the discovery documents?
THE COURT: Sure. Ladies and gentlemen, we are going to take a brief five or ten-minute recess just to cycle into cross-examination. Please remember all my admonitions. Let me ask you to step back into the jury room.
(The jury exited the courtroom and the following proceedings were held in open court.)
THE COURT: All right. Thank you. Be seated. The record should reflect the jury has withdrawn from the courtroom. Mr. Neufeld, what do you need?
MR. NEUFELD: I want to turn over to the People copies of the items I intend to utilize to cross-examine this witness.
THE COURT: All right.
MR. NEUFELD: Which will take me about two or three minutes just to put together. What is the--I'm sorry, does the Court prefer to see the overheads first or shall I just--
THE COURT: Why don't you show it to counsel.
MR. NEUFELD: There is more.
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
(Discussion held off the record between Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
THE COURT: Miss Robertson, do you have Dr. Shield's CV as a Defense exhibit? What is Defense next in order? It should be 1197.
(Deft's 1197 for id = Dr. Shield's CV)
THE COURT: All right. Mr. Clarke, are we about ready to proceed?
MR. CLARKE: Yes. I'm just finishing one of the letters if I could, your Honor.
THE COURT: All right.
(Brief pause.)
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: All right. Mr. Clarke, are we ready?
THE CLERK: Yes. I need to address these items individually when the Court is ready.
THE COURT: All right. Let's proceed.
MR. CLARKE: All right. The Defense has obviously handed us a number of different items. I will start with those which we do not have an objection to. And in terms of describing them, we have been provided what appear to be a stapled package of six charts that look similar to the charts used yesterday in court on the overhead projector, including the summing of genotype, type charts. And at this point, assuming a proper foundation is laid, we have no objection to their use.
THE COURT: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: We also received what appear to be smaller versions of what I anticipate will be slides used with the witness. Two of them refer to the steering wheel and contain something of a diagram. And again assuming a proper foundation is laid, we have no objection to them. There are, however, in addition to that, what appear to be six slides with the cover of the national research council report and then various portions from that particular report. Our objection is the same as it has been previously with regard to hearsay and evidence code section 721, so I'm simply alerting to the Court that there will be an objection if there is any attempt to use that. And I don't believe the Defense should be able to either read from it or put a slide on the board until a proper foundation is laid under 721. There is a one-page table of what appears to be a frequency chart, database type frequency chart. Again assuming a proper foundation is laid, we have no objection to it.
And then there are two sets of documents, one of which is the--appears to be a copy of the unpublished letter to science magazine that was a topic of discussion in this court some weeks ago. Our objection remains the same to it. Obviously hearsay, not been published in the scientific literature, and again I just want to alert the Court if the Defense attempts to bring out contents or the nature of this report without otherwise providing a proper foundation as to its hearsay nature, then my objection probably will be rapid. And of what has been provided to us, the last item appears to be a series of three letters, four letters, I'm sorry, some from Dr. Weir and at least one to Dr. Weir.
MR. NEUFELD: I'm sorry, let me interrupt. I would just ask that I think is the Court's rule on discovery that it is going to be used for cross-examination, that it not be shown to the witness while he is being cross-examined, that for this discussion I would simply ask that the witness step out of the room.
THE COURT: No.
MR. CLARKE: There are number of letters, and again, unless there is a proper foundation, they are obviously hearsay at this point, so I just want to alert the Court that any attempts on the Defense's part--
THE COURT: If they are letters of Dr. Weir's, they could be prior inconsistent statements, et cetera.
MR. CLARKE: They may be. That is what I mean. In other words, I'm assuming a proper foundation will be laid for all of this, but I want to alert the Court that my objections may be very quick and very vocal about items that this Court has already resolved.
THE COURT: All right. Thank you. Anything else?
MR. NEUFELD: Yes, your Honor. I would like to actually resolve one comment on the national academy of science report. Your Honor, I have looked at some of the case law in California since we addressed this issue last with Dr. Cotton, and I frankly have not found any case that says that the witness can pick and choose within a chapter within a learned treatise and say that he can be cross-examined as to a portion of a chapter which he relies on but he doesn't rely on another portion of the chapter.
THE COURT: Let see what the foundation is.
MR. NEUFELD: Okay. I also want to call the Court's attention to Witkin and Witkin says very specifically, your Honor, that--and I quote--
THE COURT: Which edition?
MR. NEUFELD: Witkin or Witkin and Epstein?
MR. NEUFELD: Witkin 5, cross-examination of expert witnesses, section 1899, et seq.
THE COURT: Well, if Witkin says it, it must be true.
MR. NEUFELD: And the statement in Witkin, your Honor, is, and I quote: "Similarity is important to permit an expert witness to be cross-examined concerning those publications referred to or considered by him even though not specifically relied on by him in forming his opinion. An expert's reasons for not relying on a particular publication that we referred to or considered by him on forming his opinion may reveal important information bearing upon the credibility of his testimony." I would also point out, your Honor, that this witness cites the NRC report in his report that was filed with the Court and given to counsel.
THE COURT: Well, like I said, let's see what the foundation is.
MR. NEUFELD: Certainly.
THE COURT: All right. Let's have the jurors.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. The record should reflect we have been rejoined by all the members of our jury panel. And Mr. Neufeld, you may commence your cross-examination.
MR. NEUFELD: Good morning, ladies and gentlemen.
THE JURY: Good morning.
CROSS-EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Good morning, Dr. Weir.
DR. WEIR: Good morning, sir.
MR. NEUFELD: Dr. Weir, we've met before professionally, have we not?
DR. WEIR: Yes, sir.
MR. NEUFELD: But we have never encountered one another in a courtroom before this?
DR. WEIR: I believe not.
MR. NEUFELD: Okay. Dr. Weir, you said a moment ago at the conclusion of the direct examination that in assessing the estimates provided by the Department of Justice in California and Cellmark that you felt that they were, "Good estimates"; is that correct?
DR. WEIR: Yes, that is--I do.
MR. NEUFELD: But they are not the best estimate, are they?
DR. WEIR: Umm, well, I think based on those data they are the appropriate estimates and for a single point estimates I believe they are the best, yes.
MR. NEUFELD: Well, let me ask you this, sir--
THE COURT: Dr. Weir, would you just pull the microphone a little bit closer.
DR. WEIR: Sorry.
THE COURT: Thank you.
MR. NEUFELD: Do statisticians use the term "Best estimate" when applying a statistical estimate of the occurrence of something?
DR. WEIR: Not generally. We have more specific terms and that is--we probably need to explore that further. It is kind of vague. We might talk about--
MR. NEUFELD: Well, let me ask you this, Dr. Weir--
THE COURT: I'm sorry, counsel, he was in the middle of his answer.
MR. NEUFELD: I'm sorry.
DR. WEIR: I will finish.
MR. NEUFELD: I will apologize.
DR. WEIR: No, I will stop.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Do the estimates that are provided by the Department of Justice and Cellmark in this case incorporate the corrections that you deem appropriate?
DR. WEIR: Well, that is a two-part question. As with the other labs, I produce an estimate by multiplying numbers together. That is the estimate. That is what I characterize as being a good estimate. Along with that estimate, as I explained yesterday, I would do two other additional steps, attach confidence limits and allow for appropriation structure, and those additions have not been done by the two labs.
MR. NEUFELD: Okay. So if you were giving the best estimate in this case it would--no. 1, it would account for a substructure; is that correct?
DR. WEIR: No. I think what I said is the best estimate is what they have done. Along with that estimate I would do these additional two steps.
MR. NEUFELD: When you do your additional two steps you come up with a new estimate; isn't that correct, Dr. Weir?
DR. WEIR: That's right. As I explained yesterday, in public opinion poles, we have two parts to the answer, the 47 percent and the plus and minus.
MR. NEUFELD: And so, Dr. Weir, if you made your--your additional step, which is the result of accounting for possible substructure, that would come up with an estimate which would be more favorable to the accused than the estimate provided by Cellmark and the Department of Justice; isn't that correct?
DR. WEIR: That's true.
MR. NEUFELD: And sir, the other procedure, a step that you take that was not taken by Cellmark and the Department of Justice, is to include what you just said a moment ago called "Confidence intervals," correct?
DR. WEIR: That's right, yes.
MR. NEUFELD: If you provided a 99 percent upper confidence limit to the numbers provided by Cellmark and DOJ, you would again come up with a number which is more favorable to the accused than the estimates that have been provided by Cellmark and the Department of Justice; isn't that correct?
DR. WEIR: That's right. Their original estimates of course remain good estimates, but along with those good estimates we attach the second part of the answer. We say here is our good estimate and here is our confidence limit. Here is our good estimate and here is an appreciation of how it will change with population structuring.
MR. NEUFELD: And would that--
DR. WEIR: It is not correct to characterize one as being right and one wrong. The answers are, as you appreciate it, are complex and they are multi-faceted. What we have seen on the board here is the simplest interpretation.
MR. NEUFELD: Sir, all I'm asking is would you agree that if you make the additional two steps that you have suggested, namely for substructure and for confidence intervals, which were not done by Cellmark and DOJ in their testimony, you would arrive at an estimate that is more helpful to the accused?
DR. WEIR: Well, I don't--I don't think that is quite saying what I said. We have--we have the estimate as presented on the boards here. Along with that estimate we give a range and showing how it would change. It is not that we are putting our faith on any one of these single numbers. We can't divorce the estimate from--from the range, they go together, so we don't--it depends on your point of view, I suppose, but the Defendant would be happy with the 47 percent because he would add on the three and the opponents would be happy with subtracting it. Of course they are both stretching the limit. The fact remains the data support the 47 percent along with that, so it must be a compound answer. The extreme limits will be more favorable to the Defendant of course. And the estimate remains the good estimate.
MR. NEUFELD: Sir, but by adding--by doing your two steps, you will get a frequency that is more common than the frequency articulated by Cellmark and DOJ; is that correct?
MR. CLARKE: Objection, asked and answered.
THE COURT: Overruled. Different question.
DR. WEIR: I will be presenting a range. I will be giving the original estimate together with the range. The outside end of that range, the very outside end of the range will be more favorable to the Defendant.
MR. NEUFELD: And it is that outside end of the range which was not presented by Cellmark and the Department of Justice, correct?
DR. WEIR: That's true.
MR. NEUFELD: And you advocate that those outside ranges be presented to a jury, don't you?
DR. WEIR: Well, I don't really have much choice. As a statistician I need to explain estimates and the ranges, and I think as we will--and I think I said that the amount of difference does not change the conclusions that we've heard. Matching profile based on several loci is a rare event. The fact that it is rare--and that also I should believe that we should be worrying about the fact that it is rare. That fact is not changed by any of these manipulations of the numbers.
MR. NEUFELD: Let me ask you this, Dr. Weir, just to change gears for a second: During your career, sir, have you ever made any mistakes as a professional?
DR. WEIR: Oh, I'm sure I have.
MR. NEUFELD: Have you ever made errors in either calculations or computations?
DR. WEIR: I'm sure I have.
MR. NEUFELD: Have you ever in your career asserted facts that turn out not to be correct?
DR. WEIR: Well, you will probably refresh me with some. I hope not.
MR. NEUFELD: Okay. Would it be fair to say that you may have made mistakes during your career in certain facts that were asserted?
DR. WEIR: I may have made a mistake in my career, yes.
MR. NEUFELD: Okay. And would you also agree, doctor, that perhaps you have even propounded theories that at some time in the future ultimately were refuted?
DR. WEIR: I don't believe so. I don't--I can't think of any published refutations of any of my papers.
MR. NEUFELD: How about unpublished refutations? In other words--I'm sorry, let me clarify. Have you ever propounded a theory not in the publication or not in writing which was subsequently refuted?
DR. WEIR: Goodness, I don't know how I could answer that question. If I didn't say it or write it, how could I--
MR. NEUFELD: I'm asking if you verbally expressed it to other people or other colleagues in the field?
DR. WEIR: Oh, I can't be held accountable for every coffee conversation I may have ever had.
MR. NEUFELD: Okay. Now, I believe you said on direct examination that you yourself do not operate a forensic laboratory; is that right?
DR. WEIR: I do not.
MR. NEUFELD: And you have never operated a forensic laboratory, have you, sir?
DR. WEIR: I have not.
MR. NEUFELD: And in fact you don't do forensic testing of any sort, do you?
DR. WEIR: I don't do any laboratory work of any description.
MR. NEUFELD: And would it be fair to say also that you have no training in forensic science?
DR. WEIR: That's correct.
MR. NEUFELD: Now, but you would agree, sir, that it is not necessary to have training in forensic science or to operate a forensic laboratory in order to provide an expert opinion on the appropriateness of certain statistical methods that are being used for interpreting forensic DNA data?
DR. WEIR: I would have to agree with that because that is what I do.
MR. NEUFELD: Okay. And would you agree, sir, that the relevant areas of expertise in this particular subject include theoretical population genetics and the field of statistics?
DR. WEIR: Yes, that's right.
MR. NEUFELD: Now, there are--would you agree, sir, that there are often misunderstandings, if you will, about what statistics mean and what they don't mean?
DR. WEIR: I'm a statistician. I can't imagine that ever happening.
MR. NEUFELD: Okay. Well, let's just try and clear up a few things for those of us who aren't statisticians, sir. Would you agree that the numbers that are reflected on the Prosecutor's exhibits in this case are not the probability of Mr. Simpson's guilt or innocence?
DR. WEIR: That's absolutely correct, and nothing I have said or will ever say has to do with the probability of guilt.
MR. NEUFELD: I appreciate that. And would you agree, sir, that these numbers that appear on these boards are not the probability that someone other than Mr. Simpson is the source of any particular stain?
DR. WEIR: No. I think we've been very clear what these numbers are. These are the probabilities or the frequencies of finding those stains if they were contributed by unknown people. And I will say it once more, because it is easy to get confused, these are frequencies of the stains, be they single or mixed, if they were contributed by unknown people.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: So just so I'm clear on this, Dr. Weir, if someone said or suggested that these frequencies were the probability that someone other than Mr. Simpson was the source of a particular stain, that would be scientifically wrong, correct?
DR. WEIR: That would be wrong.
MR. NEUFELD: And the numbers up on this board and the other boards, Dr. Weir, they tell us nothing about the probability of a false or misleading match due to errors in the collection or handling of samples; isn't that correct?
DR. WEIR: These numbers on the board are the frequencies of the stains if they were contributed by unknown people. That is all they are.
MR. NEUFELD: Well, sir, therefore would you agree that these numbers tell us nothing about the probability of a false or misleading match due to errors in the collection or handling of samples?
DR. WEIR: These numbers are the frequencies of the stains, so that is all they are.
MR. NEUFELD: And therefore they are not the probabilities or frequencies that I just described; is that correct?
DR. WEIR: That's right. They are the frequencies of the stains if they were contributed by unknown people.
MR. NEUFELD: And sir, would you agree that these statistics that have been propounded in this case by Prosecution witnesses tell us nothing about the probability of a false or misleading match due to evidence tampering?
DR. WEIR: These numbers on the board reflect only the frequencies of the stains if they were given by unknown contributors. That is all they--that is all they convey. They don't convey any of these other things.
MR. NEUFELD: Well, and by your answer, sir, are you therefore saying that they don't tell us anything about the probability of a false or misleading match due to evidence tampering?
MR. CLARKE: Objection, asked and answered.
THE COURT: Sustained.
MR. NEUFELD: Your Honor, I don't believe it was responsive.
THE COURT: It was. Proceed.
MR. NEUFELD: And would you agree, Dr. Weir, that the numbers on these boards are irrelevant if the match is due to the combined effects of total degradation followed by cross-contamination with Mr. Simpson's blood, either from Rockingham swatches or from a minuscule amount of fresh blood from his reference sample?
MR. CLARKE: Objection, vague, assumes facts not in evidence.
THE COURT: Compound.
MR. CLARKE: Also argumentative.
THE COURT: Compound. Rephrase it.
MR. NEUFELD: All right.
MR. NEUFELD: Would you agree that the statistics on these boards, Dr. Weir, is irrelevant if the match is due to the combined effects of total degradation and cross-contamination with Mr. Simpson's blood either from--I'm sorry, with Mr. Simpson's blood from the Rockingham swatches?
DR. WEIR: I'm not sure I am here to talk about relevance. These numbers that I have verified are the frequencies of those stains if they were given by unknown contributors. As I think I said, my analysis starts with the determination of the laboratory that there is a match and these are the details of the matching profile. All of the numbers refer to the frequencies of the stains that are presented on the board. They have nothing--they make no statements about anything else and I'm not talking about relevance. That is beyond my expertise.
MR. NEUFELD: In fact, Dr. Weir, would you agree that the validity of all of your estimates and the estimates propounded by other Prosecution witnesses in this case assume that the laboratory work in this case was valid?
DR. WEIR: The validity of my results are self-contained. They follow from the profiles given. Once the profile is established and declared to match, everything else I have done is valid. Anything before that step I don't address.
MR. NEUFELD: Well, you say you don't address it, but you assume that all the work was done and all the results are valid; isn't that correct?
MR. CLARKE: Objection, asked and answered.
THE COURT: Overruled.
DR. WEIR: I think I have said that. I assume that the facts on the board are indeed the truth, they are the profiles and they do match.
MR. NEUFELD: Well, it is not just that they are the profiles. You are also assuming, sir, the validity of the underlying processing, collection, preservation and handling of the evidence by everybody who did the work up until the time that you analyze it; is that correct?
DR. WEIR: I--I said that I'm going to start with these profiles and the fact that they match and the details of them. Anything that goes prior to that is beyond my expertise.
MR. NEUFELD: Well, let me ask you this, sir: Referring to your report if you will--do you have a copy of it in front of you?
DR. WEIR: Yes, sir, uh-huh.
MR. NEUFELD: I call your attention to page 2. I'm sorry. On mine it is page 3. You state the following, and I quote: "These notes assume the validity of all DNA profiling by Cellmark Diagnostics, the California Department of Justice and the Federal Bureau of Investigation." Is that correct?
DR. WEIR: That's right. I think that is just what I've been saying. I start with a determination of the match and the nature of the profile. Anything prior to that is beyond what I do.
MR. NEUFELD: Well, you included, along with Cellmark and the Department of Justice, the Federal Bureau of Investigation; is that right?
DR. WEIR: Yes, sir.
MR. NEUFELD: Umm, are you aware of any DNA profiling that the Federal Bureau of Investigation did on evidence samples in this case?
DR. WEIR: No, I'm not, but it is obvious why I have that statement in there. My entire report is based on the FBI data. I must assume that those data are an accurate representation of the profiles of the people sampled. I have no choice but to assume those databases are valid.
MR. NEUFELD: Now, doctor, it is curious, however, that when you assume the validity of the DNA profiling of those different laboratories, you don't--or you fail to state whether you assume the validity of the DNA profiling done by the Los Angeles Police Department in this case?
MR. CLARKE: Object to the form of the question.
THE COURT: Overruled.
MR. NEUFELD: That is omitted from your statement, is it not?
DR. WEIR: That is omitted from my statement.
MR. NEUFELD: And are you aware, sir, that the Los Angeles Police Department conducted DNA profiling in this case?
DR. WEIR: I became aware about 8:00 p.m. last night.
MR. NEUFELD: Well, when you became aware of it at 8:00 p.m. last night did you feel it was necessary to amend your report?
DR. WEIR: Umm, if I would have had time after I finished working at midnight I may indeed have done that and added in the words "LAPD."
MR. NEUFELD: Are you aware, sir, that it was the Los Angeles Police Department that was responsible for the initial collection, preservation, packaging and processing of the evidence in this case?
DR. WEIR: Not in any great detail, no.
MR. NEUFELD: Would you agree, sir, that if the DNA profiles in this case were the result of laboratory error at the Los Angeles Police Department then all of your statistics, whether they are 1 in 50 billion or 1 in 5 million would be meaningless?
MR. CLARKE: Objection, asked and answered.
DR. WEIR: All of my statistics are completely meaningful because they contain a complete description of what they assume. They assume that these are the profiles, that they match, that they have this particular nature. With that starting point, everything else I've done is valid. It is certainly not meaningless. Everything I have done I believe is meaningful, given the starting point I've described.
MR. NEUFELD: Sir, so what I've asked you then, if in fact the DNA profiles were the result of error, then would your statistical estimates be meaningless?
MR. CLARKE: Same objection.
THE COURT: This is the same question we have now asked for the eighth time. Proceed. I'm going to sustain the objection.
MR. NEUFELD: Now, on direct examination you discussed with this jury or described to this jury that when you use the product rule, when you multiply these different frequencies, it is essential that the various factors that you are multiplying together are independent of one together; is that correct?
DR. WEIR: Yes, they must. We are regarding this profile as a set of pieces of information. That is typically ten or twelve. Sometimes it is even a lot more separate pieces of information. And when I say "Separate," that means we are assuming that in fact they are independent. It is not--although we talk about the matching profile, it is actually a lot more than that, because the word "Profile" is a word that describes a whole lot of matches. They are matches at both the bands of all the probes. So it is a very--very--if you like, very compelling events that we have these--this complete match. It is compelling because we regard these as being separate items of the match, and to put a number on that we have to regard them as being separate and independent, so we can do the product.
MR. NEUFELD: And I believe you said, Dr. Weir, yesterday morning to this jury or yesterday afternoon, excuse me, when you were discussing the factors which suggested independence here, I believe that one of the things you said to the jury was that the marker systems that they are relying on for forensic typing are what is commonly referred to as junk DNA. Do you remember saying that, sir?
DR. WEIR: I don't think I said that. I said--I said, I imagine--I hope I said that this is DNA of no known function.
MR. NEUFELD: Okay. And you said that because the marker system that they are relying on for forensic work are DNA of no known function, that is an additional piece of evidence, if you will, to suggest that there is no association here; is that correct?
DR. WEIR: No, I didn't say that. I said because the RFLP types have no known function, we may expect them to be independent. However, we are not entitled to go on expectations. We must perform the tests that I described and did indeed conduct and it wouldn't really matter if there was some biological agent at work affecting these--these various pieces of DNA, these various types providing the data, providing their frequencies are consistent with independence, then we may proceed with the assumption of independence and do the product rule. So when I do my test, as a statistical exercise it makes no statement about the underlying biology. Some of these pieces of DNA may in fact be very important for our well-being. We don't know that. And why I say they may be important, because if they were important, it might be that people with a certain type of DNA don't live as long, don't have as many children, and that would affect the frequency, so there is all that kind of phenomenon that may be going on. We don't think it is, but I may indeed be. However, when we look at the data, when we look at the databases and the frequencies, we find that these frequencies are consistent with being independent, so as a statistician I'm doing a statistical test. I'm making no statements about the underlying biology.
MR. NEUFELD: Well, Dr. Weir, are you aware of the fact that for many of the PCR forensic markers that are relied on in this case, they do code for proteins and they do have some effect on our health and well being?
DR. WEIR: Some of the PCR markers are inside our genes and they could very well, as I've just described, have an effect. What is kind of interesting, I suppose, and it is certainly reassuring for this forum, is that their frequencies are consistent with independence. Their frequencies show DNA. In fact, we may multiply them together, regardless of what effect those DNA's actually have on us.
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, this morning and yesterday, sir, you provided this jury with an approach to interpreting the mixtures; is that correct?
DR. WEIR: Yes, I did. We have given some numbers now which show us the frequencies of these various mixed stains if they were contributed by people unknown to us. That is what all these numbers mean and certain specified numbers of unknown people.
MR. NEUFELD: And when you provided this information to the jury, you simply provided what you found to be the most common frequency and then you gave the range of the rarest frequency; is that right?
DR. WEIR: That's right, yes.
MR. NEUFELD: But you also, at least in your report provided in tabular form a whole range of different frequencies depending upon the racial composition of two people or three people or even four people who may have been contributors; is that correct?
DR. WEIR: Yes. I think all these numbers do that. All these ranges, as we've said, talk about the frequencies of the unknown people and the various databases we have available to us.
MR. NEUFELD: And so, for instance, when you are looking at--when you work on the assumption that there were two contributors and you provided a range for these different items of evidence based on the assumption of two contributors, you don't assume that you know the identity of the two contributors, do you?
DR. WEIR: All these frequencies are for unknown contributors. They are all calculated throwing away any idea we might have who contributed, so these are all unknown people. These numbers refer to the frequency of which we would find that evidence if they were--evidence profiles were given by unknown people.
MR. NEUFELD: And so what you actually did, in arriving at these calculations and these estimates, Dr. Weir, is that you would list all the possible pairs, all the permutations, if you will, that if two people created a particular stain, a particular profile, what possible genotypes could each of them have; is that right?
DR. WEIR: Well, it is even more than that, of course. We have, say--the simplest case we have four of these bands, four alleles, so we know it is coming from two people, so I assume, well, I'm going to do a calculation as though they were given by two people unknown to me. One person might have these two bands and be African American. This other person might have those two bands and be Hispanic. Or one person might have the first and third bands and be Caucasian. And the second person will have the second and fourth bands and be African American. So you can see that there is a whole host of possibilities we have to consider. Remember that these contributors, under this calculation, are unknown to us. We have no idea who could possibly have contributed those mixed stains, and so we have no idea, we've got to consider all the possibilities that there are.
MR. NEUFELD: Setting aside for the moment that additional layer of complication, if you will, dealing with different races of the components, one of the things you did do, at least initially, is you would sum the frequencies of the different pairs of genotypes; isn't that right?
DR. WEIR: That's correct, yes, we have all the possible ways of getting those four alleles.
MR. NEUFELD: And it was your intent when did you this, Dr. Weir, was it not, to sum up all the possible pairs? You don't want to leave any out?
DR. WEIR: It was my intent and I certainly hope I didn't leave any out.
MR. NEUFELD: And would you agree, sir, that the more pairs that you include, the more common the ultimate frequency is?
DR. WEIR: That's right, yes.
MR. NEUFELD: So it is essential, to be fair to the Defendant in any case or to Mr. Simpson in this particular case, that you include all possible pairs; isn't that right?
DR. WEIR: That's correct, yes.
MR. NEUFELD: And if you left out some pairs, then your number could be biased against Mr. Simpson; isn't that connect?
DR. WEIR: It sounds as though you are finding that I left one out. I hope I haven't.
MR. NEUFELD: Let me ask you a question, DR. WEIR: When were you first asked to prepare statistical estimates of mixtures in this case?
DR. WEIR: It was probably two weeks ago.
MR. NEUFELD: Well, didn't you receive a call from one of the Prosecutors back in the middle of May when Robin Cotton was on the witness stand about a request to provide statistical estimates of the mixtures in this case?
DR. WEIR: Yes. That was the time. Is that more than two weeks ago?
MR. NEUFELD: It was about five weeks ago.
DR. WEIR: All right. Time flies.
MR. NEUFELD: In fact, you issued a report--preliminary report as early as May 11, 1995, didn't you?
DR. WEIR: Yes, yes, that's correct. The time Robin Cotton was testifying the issue of mixtures came up.
MR. NEUFELD: All right.
THE COURT: Excuse me, doctor. Would you allow Mr. Neufeld to finish asking the question before you start answering.
DR. WEIR: Sure.
MR. NEUFELD: Let's take a look at one of the tables, if you will, in the report that you submitted to the Court in this case. I'm referring to page 33, Mr. Clarke, which is table 24-B. Could you put it up on the elmo, please. May I have it put up on the elmo, your Honor?
THE COURT: Certainly. And Mr. Neufeld, 10:30.
MR. NEUFELD: 10:30?
THE COURT: Yes.
MR. NEUFELD: 10:30? You know something, I think that is the same mistake I made last time, same issue.
THE COURT: Just giving you a head's up.
MR. NEUFELD: That is what happened when I get a little focused. I apologize, your Honor.
THE COURT: Proceed.
MR. NEUFELD: What exhibit?
THE COURT: Table 24-B. Mrs. Robertson, Defense exhibit 408?
MR. NEUFELD: Defense exhibit, your Honor.
THE COURT: 408, Defense.
MR. HARRIS: People's.
THE COURT: Should be a 10 series.
MR. DOUGLAS: 11.
THE CLERK: The next one is 1198.
THE COURT: 1198, my mistake. Proceed, thank you.
(Deft's 1198 for id = document)
MR. NEUFELD: Now, Dr. Weir maybe we could move the board.
DR. WEIR: I can't read that.
THE COURT: Doctor, do you have your own page in front of you?
DR. WEIR: Yes.
THE COURT: All right. Mr. Neufeld.
MR. NEUFELD: Thank you.
MR. NEUFELD: Dr. Weir, you said that in preparation for this report that you reviewed at least the final reports of the DOJ and Cellmark laboratories; is that correct?
DR. WEIR: That's right.
MR. NEUFELD: And you also said that you made a number of phone calls, at least to Mr. Sims, to assist you in interpreting the data; is that also correct?
DR. WEIR: To both Robin Cotton and Gary Sims.
MR. NEUFELD: Now, in this case, Dr. Weir, both Gary--I'm sorry, are you somewhat familiar with how DQ-Alpha typing is done?
DR. WEIR: Not in any great detail, no.
MR. NEUFELD: That is why you had to rely on what Mr. Sims and Robin Cotton told you; is that right?
DR. WEIR: That's right, yes.
MR. NEUFELD: In this case, Dr. Weir, both Gary Sims and Robin Cotton testified that since there is no specific dot on the DQ-Alpha strip for the allele 1.2, it is concluded that it exists through inference and other dots or the absence of other dots on that strip. Have you heard about that?
DR. WEIR: Yes. I'm not completely clear of the details, but I understand that there are cases where the 1.2 may be present but we can't tell whether it is present or not.
MR. NEUFELD: Well, didn't you notice, sir, on the reports that you read from DOJ, that whenever there is a mixture and the mixture included both a 1.3 and a 4 allele, the 1.2 allele may be masked?
DR. WEIR: Well, the records I think aren't on the board anyway, so 1.2 possible and I think yesterday that I have ignored these qualifications. If the 1.2 is listed, I have assumed that it is present.
MR. NEUFELD: Well, Dr. Weir, you said, I believe, yesterday, that there were some instances where an allele may be--a dot may be very faint, may be very weak and in those situations you ignored the description of weak or faint?
DR. WEIR: No, I never--
MR. NEUFELD: Umm, didn't you say that, sir, yesterday?
DR. WEIR: I said nothing about dots being weak or faint.
MR. NEUFELD: Well, in the situation, sir, where the 1.2 allele is simply masked in a mixture by the presence of these other alleles, as has already been testified to, it is possible, is it not, that when you describe the various pairs that you have to list the pairs as if the 1.2 allele was there and then list the pairs as if the 1.2 allele wasn't there; isn't that correct?
DR. WEIR: I'm not sure about that. I've assumed that it was there because on the board it was listed as being there, as possibly being there, and as I said, I have ignored the words "Possible" or "Trace" or whatever, so I've just taken my calculations for those four alleles.
MR. NEUFELD: Well, let me ask you this: Were you told by Gary Sims or by Robin Cotton, that when we say possible 1.2 in a mixture situation, we mean that there may not be any 1.2 there at all? Didn't they tell you that?
DR. WEIR: They may have. I don't recall specifically that conversation.
MR. NEUFELD: So it is your position, sir, that in this particular table, for instance, that the reason you did not consider the possibility of no 1.2 allele, is because whenever it is listed as possible you included it in the calculations as if it was there?
DR. WEIR: That's what I've done, yes. I've taken every allele listed on the board as being there.
MR. NEUFELD: And that is your position throughout, sir?
MR. CLARKE: I'm sorry, object to the form of the question.
THE COURT: Overruled.
MR. NEUFELD: Hum?
DR. WEIR: I don't know if it is a position. That is what I have done.
MR. NEUFELD: Well, Dr. Weir, I call your attention to table--(Discussion held off the record between Defense counsel.)
MR. NEUFELD: If I may, I call your attention to--I would like to put up as a next exhibit, Dr. Weir's table 25-A and 25-B.
THE COURT: All right. That will be People's 1199--excuse me, Defense 1199.
(Deft's 1199 for id = document)
MR. NEUFELD: Do you see that, Dr. Weir?
DR. WEIR: Yes, I do.
MR. NEUFELD: Dr. Weir, on this table, table 26-A and B--I'm sorry, 25-A and B--25-A and B--
DR. WEIR: Yes.
MR. NEUFELD: --you see the little asterisk you have there underneath the line?
DR. WEIR: I see it, yes.
MR. NEUFELD: And you see where it says "Allele 1.2 if present would not be detected"?
DR. WEIR: Yes.
MR. NEUFELD: Now, in this particular table, Dr. Weir, given the statement results from the DOJ laboratory--
DR. WEIR: Yes.
MR. NEUFELD: --as you have for table 24-B, the table I just showed you, in this instance you chose to accept the possibility that the allele, namely, 1.2 which is the possible allele, could be masked and therefore not be there?
DR. WEIR: Yes.
MR. NEUFELD: Isn't that correct, sir?
DR. WEIR: Well, I don't know what you mean. The statement holds of course all high calculations include the possibility of it being there.
MR. NEUFELD: And your calculations also include, in this particular table, the possibility of it not being there; isn't that right?
DR. WEIR: That's correct. I have--I have a whole range of possibilities either with it being present or not present.
MR. NEUFELD: So for table 25-A, which were certain mixed stains on the glove, G1 and G4, you chose to include both the frequencies, given the assumption that allele 1.2 is there and the assumption that allele 1.2 is not there; isn't that correct, sir?
DR. WEIR: That looks like right, yes.
MR. NEUFELD: Whereas in the table--by the way, as a result of taking that approach, sir, in table 25-A, how many different pairs did you have to sum up for the DQ-Alpha type?
DR. WEIR: It looks like 18.
MR. NEUFELD: And--one moment. Just so the jury can be clear on this as well, are the lists of pairs that you summed up reflected along this first column?
DR. WEIR: Those two columns.
MR. NEUFELD: Right. Well, it is a pair--this would be the first person and this would be the genotype of the second person, correct, (Indicating)?
DR. WEIR: That's right.
MR. NEUFELD: And so you have 18 different frequencies that you sum up on this particular table for those particular items; isn't that correct?
DR. WEIR: That's correct.
MR. NEUFELD: And you did that in a situation where there is a possible 1.2 allele which may or may not actually be there because of the masking phenomena; isn't that correct?
DR. WEIR: That's correct.
MR. NEUFELD: Now, going back, sir, to--to table 24-A--
THE COURT: 1198.
MR. NEUFELD: --exhibit 1198, again the same, it being a mixture; is that correct, sir?
DR. WEIR: That is what--that is a mixture, yes.
MR. NEUFELD: And consequently, the 1.2 allele in that particular mixture may actually be there or may actually not be there; isn't that correct?
DR. WEIR: That's correct.
MR. NEUFELD: But this time, sir, unlike the other items on the glove, you chose not to include the frequencies of those pairs assuming the 1.2 allele wasn't there; isn't that correct?
DR. WEIR: I think you found my mistake, Mr. Neufeld.
MR. NEUFELD: Well, let's talk about what that mistake means, sir. In this particular instance, Dr. Weir, your calculations are based only on summing frequencies for six pairs; is that right?
DR. WEIR: That's right.
MR. NEUFELD: And would you agree, sir, that if you sum the frequencies for an additional dozen pairs, which would be three times as many as you started off with, you would arrive at a probability for that mixture which would be much more helpful to Mr. Simpson; isn't that correct?
DR. WEIR: I might question the word "Match." It depends on the frequency of the 1.2 alleles.
MR. NEUFELD: Well--
DR. WEIR: It is kind of interesting that the frequencies in both these tables are comparable in magnitude.
MR. NEUFELD: Sir, would you agree and didn't you say a little while ago on cross-examination, that if you add additional pairs of frequencies you will arrive at a frequency that is more common than if you add fewer pairs of frequencies?
DR. WEIR: That's correct.
MR. CLARKE: I'm sorry. Objection. I think counsel is arguing with the witness.
THE COURT: Overruled.
MR. NEUFELD: And sir, on the exhibit--one moment--
(Discussion held off the record between Defense counsel.)
THE COURT: All right. Mr. Scheck, you have put up which exhibit?
MR. SCHECK: It is 272-B, the November frequency board.
THE COURT: Thank you. Mr. Neufeld.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: And sir, in the table in which you actually did the additional calculations--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: --for the glove items G1 and G4--
THE COURT: Referring to table 25-B, Defense 1199.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: --on G--item G1 is a stain on the glove where it is not suggested that Mr. Simpson could be a contributor; isn't that correct?
DR. WEIR: I believe he is listed as not--that's right, he is not listed as not excluded.
MR. NEUFELD: So he is not considered a possible contributor there; is that right? He is not listed in the "Not excluded" category?
DR. WEIR: Can we agree that he is excluded?
MR. NEUFELD: All right. And he is also excluded on G4; is he not?
DR. WEIR: Yes, the profiles are the same.
MR. NEUFELD: Right. And so on your calculations for those stains that are mixtures where Mr. Simpson is excluded, you've summed up additional pairs to--which would make the frequency somewhat more common; is that correct?
DR. WEIR: I've summed the table 25-B is correct. It looks to me as though table 24-B is incorrect.
MR. NEUFELD: And sir, this only is 24---
DR. WEIR: When I do calculations, I do not consider any forensic implications, and if you are suggesting that I do, I will disabuse you of that right now.
MR. NEUFELD: Dr. Weir, you will--one moment, your Honor.
THE COURT: Go ahead.
MR. NEUFELD: I would also like you to look at table 24-A--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One moment, your Honor.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, for--unlike the items of evidence where you did sum up the additional pairs, sir, table 24-A reflects items 303, 304 and 305 in the Bronco; is that correct?
DR. WEIR: That's correct.
MR. NEUFELD: And--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Your Honor, this is--
THE COURT: All right. People's 260.
MR. SCHECK: Yes.
THE COURT: Mr. Neufeld.
MR. NEUFELD: Thank you.
MR. NEUFELD: And Dr. Weir, for items 303, 304 and 305--sorry--on the console, Mr. Simpson cannot be excluded; is that correct?
DR. WEIR: That's correct.
MR. NEUFELD: And the calculations you did for the frequency of the mixtures for those stains fail to include the additional pairings; isn't that correct?
DR. WEIR: That's correct, yes.
MR. NEUFELD: And by failing to include the additional pairings in these samples, in these items, which do not exclude Mr. Simpson, the numbers that are arrived at by you and put on that board are biased against Mr. Simpson; isn't that correct?
DR. WEIR: As it turns out it looks that way, yes.
MR. NEUFELD: And sir, would you agree that you made this same error, which is biased against Mr. Simpson, not only on items 303, 304 and 305, but also on item 31 in the Bronco?
DR. WEIR: I don't know.
MR. NEUFELD: Would you please look at your notes.
DR. WEIR: Help me with the page number.
MR. NEUFELD: Would you please look at page 32, table 23-A and B.
MR. CLARKE: Your Honor, I object. I think counsel is arguing with the witness at this point.
THE COURT: Overruled. Mr. Neufeld.
MR. NEUFELD: Am I right, sir, that not only did you make this same mistake which has the effect of being biased against Mr. Simpson for items 303, 304 and 305, but also as to item 31?
DR. WEIR: Well, this item assumes that all the alleles listed on the board are present and I have made calculations accordingly.
MR. NEUFELD: Well, but of course, as you know from what you did on that other item, sir, on the glove, you know that you can't necessarily make that assumption that you assume that it is either there or then assume it is not there to consider the other pairs or frequencies; isn't that correct?
MR. CLARKE: Objection, argumentative.
THE COURT: Overruled.
DR. WEIR: On item 31, I did not see the word "Possible" so I conclude that it is present.
MR. NEUFELD: Were you told about how the system functions, though, because of this masking phenomena?
DR. WEIR: All my analyses are based on the reported profiles, whether or not they match, and their details. I have generally ignored, although apparently sometimes I didn't, but in this case there is no suggestion that the 2.1 allele is not there, so I assume it was there.
MR. NEUFELD: Sir, but isn't it--when you put on your own report, with respect to other items, both on table 25-A and again on table 26-A, if you care to look at 26-A as well--
DR. WEIR: I believe in those items the word "Possible" was listed on the board and on item 31 it was not listed as being possible, so I assumed the allele is there.
MR. NEUFELD: Well, you put that asterisk on the report. Before you did that, sir, did you ask either Gary Sims or Robin Cotton what is this thing about the 1.2 allele, that it is sometimes masked and sometimes isn't, before you decided to put in that asterisk and make those different computations?
DR. WEIR: I didn't decide to put in the asterisk arbitrarily. I put it in--at least my intention was and at least in my original intention back in May, to assume it was either present or absent in those cases where the word "Possible" was written. The word "Possible" is not written on item 31.
MR. NEUFELD: So you are saying that the reason you didn't do it on table 23-A is because the word "Possible" wasn't written in next to the 1.2 allele?
DR. WEIR: That is the only reason that would be consistent with what I did, and I assumed that is my reasoning at that time.
MR. NEUFELD: Well, now, when you say you assume that reasoning, do you know that to be true or are you guessing on that?
DR. WEIR: Well, I'm saying it is true. I can't think of every thought process I've had over the last several weeks, but that would--thinking about it now, and the way I do operate, I'm sure that is what I did.
MR. NEUFELD: Well, Dr. Weir--
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, I would like to show you table 23-A.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Exhibit 1200, and I will move the board.
(Deft's 1200 for id = document)
MR. NEUFELD: Now, can you see, Dr. Weir, that for this particular table you were computing the frequencies of the mixture both for item 31 and I believe also for one of the glove stains; is that correct?
DR. WEIR: Yes. They have the same profiles.
MR. NEUFELD: And is that what the sentence says at the very top there, sir, the top of the table?
DR. WEIR: Yes. It says items 31 and G10.
MR. NEUFELD: And sir, on the report that you received from the Department of Justice with respect to item G10 which you have had front of you, I hope--sir, do you have that report?
DR. WEIR: No, I don't. I should say I based my calculations on these charts; not final reports.
MR. NEUFELD: Sir, did you tell us a little while ago that you actually reviewed the final reports of the Department of Justice and Cellmark?
DR. WEIR: Yes. Those statements are not inconsistent. I certainly reviewed them. I don't have them in front of me. All I'm saying is that after having reviewed the report, when I came to sit down and type in entries into the program to do these mixture calculations, I relied on these charts.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: One moment.
THE COURT: All right. Would this be a good spot?
MR. NEUFELD: Just one last question.
MR. NEUFELD: Isn't it a fact, sir, that with respect to the report from DOJ regarding stain G10 on the glove, which also is listed as not excluding Mr. Simpson, that report from DOJ told you specifically that the 1.2 allele was just possible; isn't that correct?
DR. WEIR: I would have to look at the chart.
(Brief pause.)
DR. WEIR: That's correct.
MR. NEUFELD: All right. So here again, Dr. Weir, you did the same calculation for G10 on the glove, a stain that allegedly cannot exclude Mr. Simpson? Even though you knew that the 1.2 allele was simply a possible allele, you did the same calculations, which as it turns out, are biased against Mr. Simpson; isn't that correct.
MR. CLARKE: Object to the form of the question.
THE COURT: Sustained.
MR. NEUFELD: Isn't it correct, sir, that in your calculations for G10 you only summed the frequencies of six pairs of genotypes?
DR. WEIR: That's the way I have reported it. In fact, I didn't do any calculations on G10. I just lumped them in with the 31.
MR. NEUFELD: But your report, sir, says this is the correct data for item 31 and G10, does it not?
DR. WEIR: That is what it implies, yes.
MR. NEUFELD: Yes. And in fact the correct way to do G10, if the 1.2 allele is simply possible, is to have the additional twelve pairs that you had on those items where you considered the 1.2 allele is possible; isn't that correct, sir?
DR. WEIR: That is certainly true.
MR. NEUFELD: We could break now.
THE COURT: All right. Ladies and gentlemen, we are going to take our mid-morning break. Please remember all my admonitions to you. Do not discuss the case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you. And we will stand in recess for fifteen minutes. Dr. Weir, you can step down.
(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. The necessary 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. And, Dr. Weir, would you resume the witness stand, please. All right. Good morning again, doctor.
DR. WEIR: Good morning.
THE COURT: Mr. Neufeld, you may continue with your cross-examination.
MR. NEUFELD: Thank you, your Honor.
THE COURT: And, Mr. Neufeld, this is--I'm sorry. Mr. Harris?
MR. HARRIS: 272-B.
THE COURT: 272-B.
MR. NEUFELD: Thank you.
MR. NEUFELD: And I think you said, Dr. Weir, that your reduced Xerox copy of the exhibit boards is identical to the large boards that we have here in court; is that correct?
DR. WEIR: Yes. That's right.
MR. NEUFELD: And so, sir, even on your reduced exhibit board that you relied upon when you wrote these tables, on your copy, sir, for item G10, it says on your copy a possible 1.2 allele, correct?
DR. WEIR: Yes.
MR. NEUFELD: Okay. So you had that information available to you when you prepared these tables; is that right?
DR. WEIR: That's right.
MR. NEUFELD: And, sir, these same biased mistakes that you made for these particular items that we just described--
THE COURT: Counsel, why don't you rephrase that question, please.
MR. NEUFELD: Sure.
MR. NEUFELD: The same mistakes you made in your calculations and computations for items 303, 304, 305, 31 and G10, those mistakes apply to your calculations for your two-donor theory; is that correct?
MR. CLARKE: Objection. Assumes facts not in evidence as phrased.
THE COURT: Overruled.
DR. WEIR: I should probably clarify what we're talking about. We're talking about calculations involving DQ-Alpha on the mixed stains. If there was a possibility of there being a 1.2--and it's not seen, so we don't know whether it's present or not present--then the calculation should include both those possibilities for all my calculations. And if I did not include them, then I'm sincerely sorry and I'm also embarrassed. And I haven't finished. The DQ-Alpha results are, of course, part of the profile frequencies I report. They are generally--they are an important part. I don't tend to minimize that. They are not the most important part in the sense that their frequencies are not the most discriminating.
MR. NEUFELD: Dr. Weir, the same mistake that you made on each of those items for your two-donor calculations also applies to all of your three-donor calculations for the same items; is that correct, sir?
DR. WEIR: I think I just said that all my calculations involving DQ-Alpha on the mixed stains, if there was a possibility of 1.2 of not being seen, should have included both the possibilities. If I did not, then it was an error.
MR. NEUFELD: And in each of the instances, sir, where you made that error, those were items where, according to the Prosecution, Mr. Simpson's profile could not be excluded; is that correct?
DR. WEIR: I don't know that.
MR. NEUFELD: Would you care to look at the board or your smaller versions of the boards to confirm if each of those five items Mr. Simpson is listed in the not excluded category?
DR. WEIR: Well, let's go through them one at a time. I forget which ones they are.
MR. NEUFELD: 303, 304 and 305, the Bronco console.
DR. WEIR: That's correct.
MR. NEUFELD: Item 31 on the Bronco console?
DR. WEIR: Well, I thought that we had said that I was--31, it was a definite call that the 1.2 allele was present.
MR. NEUFELD: Well, assume for the moment, sir, that based on the testimony of both Dr. Cotton and Mr. Sims, that whenever you have a mixture and you see the 1.3 and the 4 alleles, that you don't know whether the 1.2 is there or not there. Would the same mistake apply to item 31?
MR. CLARKE: Objection. Assumes facts not in evidence, misstates the evidence.
THE COURT: Sustained. Rephrase the question.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Assume for the moment, sir, that if you have a mixture, as you have in item 31, where you see the 1.1, the 1.3 and the 4 alleles, that given the nature of the system, one cannot tell whether the 1.2 allele is there or not there.
MR. CLARKE: Objection. Misstates the evidence.
THE COURT: Overruled.
DR. WEIR: My calculations on item 31 with the alleles that was stated to be present, and the 1.2 is stated to be present.
MR. NEUFELD: So what I'm asking you, sir, I would like you to assume for the purpose of this hypothetical that in a mixture with a 1.1, 1.3 and 4 alleles are actually present, that the examiner can't tell whether the 1.2 allele is there or not. In that situation, sir, would the same mistake be made in your calculations on item 31 as for the other items that we just described?
MR. CLARKE: Objection. Improper hypothetical.
THE COURT: Overruled.
DR. WEIR: If the allele--if we aren't certain about whether the allele is present or not, then it should have been included in the calculations.
MR. NEUFELD: Okay. And item 31 is another item where, according to the Prosecution exhibit, Mr. Simpson's profile is not excluded; is that correct?
DR. WEIR: Mr. Simpson is not excluded. However, that had nothing to do with my calculations.
MR. NEUFELD: And, sir, on G10, the glove item, the final item in this group, Mr. Simpson is included in that group as well; is he not?
DR. WEIR: He is not excluded.
MR. NEUFELD: Okay.
DR. WEIR: That's correct. Not excluded, yes.
MR. NEUFELD: Now, in this case, Dr. Weir, for every stain that is a mixture, there could possibly be two contributors, correct?
DR. WEIR: Umm--
MR. NEUFELD: Excuse me?
DR. WEIR: I was thinking.
MR. NEUFELD: Oh.
DR. WEIR: What we know from there being a mixture, there was more than one contributor. So, yes, there may possibly be two contributors.
MR. NEUFELD: And there may possibly be three?
DR. WEIR: There may possibly be three, although it's less likely given the evidence we see in the profile.
MR. NEUFELD: And there may possibly be four?
DR. WEIR: We are talking about increasingly unlikely possibilities.
MR. NEUFELD: All right. But there's no way to state with any certainty how many contributors there are; isn't that correct?
DR. WEIR: If we don't know the contributors to any stain in the whole case, if we don't know who contributed, we don't know who contributed period.
MR. NEUFELD: Well, it's not just a question of who, but as to the mixtures, one cannot state with any degree of certainty how many contributors there are; isn't that correct?
DR. WEIR: That's just what I said. We don't know who contributed period. We don't know how many they were, who they were, what their ethnic background. We don't know who they were period.
MR. NEUFELD: Now, let's look at item 29 if you would.
(Brief pause.)
THE COURT: Mr. Harris?
MR. SCHECK: 260.
THE COURT: Thank you.
MR. NEUFELD: Now, in your approach that you offered this jury yesterday afternoon and this morning, sir, you provided a range of frequencies based on different assumptions, is that correct, for the mixtures?
DR. WEIR: We provided some frequencies of those mixtures were given by different numbers of contributors.
MR. NEUFELD: And they are based on assumptions though; is that correct?
DR. WEIR: I'm not sure I understand. All the calculations assume a lot of things like independence--
MR. NEUFELD: And they also assume the number?
MR. CLARKE: I'm sorry. Could the witness finish his answer?
THE COURT: Yes.
MR. NEUFELD: Sorry. I thought he was. I apologize, Dr. Weir.
DR. WEIR: I forget.
MR. NEUFELD: Would you like to say something else, sir?
DR. WEIR: I believe not.
MR. NEUFELD: Okay. They also assume in some of these calculations that there were two donors as opposed to three; is that right?
DR. WEIR: Well, that's--I wouldn't say that was an assumption. Those are the frequencies with which we find the mixed stains if there were two contributors or if there were three or if there were four. There's no assumption being made. That's just the result when there were that number of contributors.
MR. NEUFELD: And, obviously, according to your approach, the number changes depending upon how many contributors you start off with; isn't that correct?
DR. WEIR: Oh, I think we've demonstrated that.
MR. NEUFELD: Now, are you familiar with the report entitled "DNA technology and forensic science" published by the national research council of the national academy of science?
DR. WEIR: Yes, sir.
MR. NEUFELD: In fact, you're not just familiar with it, sir, you actually testified before that--that committee that authored this book; isn't that correct?
DR. WEIR: That's true.
MR. NEUFELD: And you made submissions of data to that committee that authored this book; did you not?
DR. WEIR: Not quite. I provided them with a prepublication copy of my paper subsequently published on the FBI's data. So the committee was aware of my findings about independence in the FBI's data. And, in fact, in the report, they say that I had demonstrated independence of the alleles in the FBI's database.
MR. NEUFELD: And we'll come back to that in a little while, Dr. Weir, but right now, let me ask you this. Not only did you testify before the NRC committee and offer them a prepublication copy of your article, but after the report came out, you actually wrote letters and other publications criticizing this report, didn't you?
DR. WEIR: Yes. I was extremely disappointed by the report and some of the aspects. It does not--it did not then and does not reflect proper scientific approaches to the forensic--to the statistical interpretation of forensic data.
MR. NEUFELD: And that's your opinion, sir, correct?
DR. WEIR: No. I'm afraid it's not. I'm here under oath to tell the truth, and I have to--I have no choice but to tell you, the report contains mistakes. That is not an opinion.
MR. NEUFELD: Well, Dr. Weir, would you agree that there's a controversy about some of the positions taken in the NRC report?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Overruled. You can answer the question.
DR. WEIR: There is no controversy over the fact that there are errors in the report.
MR. NEUFELD: We'll come back to that in a little while, Dr. Weir. First, however, the report actually has a sentence describing recommending an approach to handling the interpretation of mixed stains such as are found in this case; isn't that correct?
DR. WEIR: There is one sentence in the report.
MR. NEUFELD: And that sentence in the report is one which you disagree with; isn't that correct?
DR. WEIR: I don't think I would say so. I have some confidence after all in the authors of that report. So I'm--I can't not think otherwise, that when they wrote that sentence, they meant to say the correct thing. It could be interpreted either way. I would give them the benefit of the doubt.
MR. NEUFELD: Well, Dr. Weir, you mentioned earlier I think under direct examination that you prepared a report in connection with this case.
DR. WEIR: That's right.
MR. NEUFELD: Can I call your attention, sir, to page 10 of your report?
DR. WEIR: You certainly may.
MR. NEUFELD: Did you include in your report the following quote, sir? "Simply adding the frequencies of all possible contributors to a mixture--and then in parenthesis, you have, "NRC 1992," closed parenthesis--"Ignores the essential nature of a mixture. It represents the contributions of more than one person." Did you write that in your report?
DR. WEIR: Yes, I wrote that in my report. I'm just trying to think what that sentence is actually saying here. If it's talking about--
MR. NEUFELD: Well, sir, I'm sorry.
MR. NEUFELD: Your Honor, I would ask that the Court ask the witness to be responsive.
THE COURT: Hold on. Hold on. Hold on. The question was, did you write that; yes or no? The answer is in the record. Ask your next question.
MR. NEUFELD: Thank you.
MR. NEUFELD: And would you agree, sir, that in that sentence, you are citing the national academy report for the proposition that in a mixed stain, one simply adds the frequencies of all possible contributors to the mixture?
DR. WEIR: That's true.
MR. NEUFELD: And you are saying in that sentence that you are critical of the NRC position because it ignores the essential--because in your opinion, it ignores what you call an essential fact?
DR. WEIR: Could you try that sentence--I've lost the train of the question.
MR. NEUFELD: Well, in that sentence, are you not only describing what the NRC position is, namely, that it calls for the adding of the frequencies of all possible--that it simply adds the frequencies of all possible contributors to a mixture, but you interpret it to mean that it is simply adding the frequencies of individuals, and by doing so, it ignores in your words the essential nature of a mixture?
DR. WEIR: Yes. If the NRC report doesn't--if that was the intention of the sentence, that we should add up the frequencies of single contributors, that ignores the fact that there was a mixture, and that would be wrong.
MR. NEUFELD: I'm sorry. Well, when you wrote this sentence in your report, sir, you didn't state it as alternatives; well, if the NRC meant this, then I disagree with the NRC, but if they meant something else, then I agree with the NRC, did you?
DR. WEIR: I didn't write it there, but that's what I mean. That's what I think.
MR. NEUFELD: Sir, isn't it true that in the sentence, however, you simply state that the NRC is calling for the--the summing up of the individual frequencies and that you're critical of that? Isn't that what the sentence says?
DR. WEIR: That's what the sentence says, but I think what I think. What I believe is that if the sentence means as I state there, a single contributor, then it's not right. If we could interpret it kindly to mean multiple contributors, then it would be appropriate to add the frequencies. And I'm sorry if my language isn't as precise as the NRC's report.
MR. NEUFELD: Now, Dr. Weir, in your report, I call your attention to table 30, please, found on page 39, and also table 29C on the previous page.
DR. WEIR: I have them.
MR. NEUFELD: Okay. According to your report, you come up with 30 different possible frequencies for item 29 just for a two-donor or three-donor assumption, if you will; is that correct?
DR. WEIR: Well, I'm not sure. We need to look. If there are two contributors to the mixed item--and I'm using four databases to do these calculations. All these calculations at this point are PCR profiles, and I'm using the FBI's PCR databases, and there are four of them. Now, I don't know--couldn't know who these unknown contributors could be. I'm going to assign them frequencies from the data I have available, which is the FBI's. And there are four databases. So it looks like 10 possible ways we could have pairs of contributors, and then the possible ways of getting three contributors is more than that and it's probably 20. I'm not sure of the exact number.
MR. NEUFELD: Okay. So that would mean that between those two alone, there's 30 different permutations, 30 different frequencies that you articulate for the meaning of the mixture; is that correct?
DR. WEIR: Well, that's not quite right. If there's a mixture and there were two contributors that we don't know who they were and there were 10 possible--well, it's not even possible scenarios. It's the 10 possible sets of data that I have. If there were three contributors and I have four databases, it looks like there are 20 combinations of the databases I could use. So I wouldn't add them together. If there were two, I have 10 possibilities. If there were three contributors, I would have 20 possibilities. There's a lot of different ways of having three people from different groups.
MR. NEUFELD: If one construed the NRC method that I just read to you and that you cite in--I'm sorry. Let me--you cite the NRC method. Let me read to you the sentence as it actually appears on page 59 of the national research council report, Dr. Weir.
DR. WEIR: Please do.
MR. NEUFELD: It says: "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. That is, that are a subset of the mixed pattern." Are you familiar with that sentence?
DR. WEIR: Yes, I am.
MR. NEUFELD: Okay. Now, if the NRC meant by that that you simply add up the genotypes of all the different individuals who could possibly contribute to that, that would be the reason that you were critical of it in your report; is that correct, sir?
DR. WEIR: If they meant to add up the frequencies of single people, they would be wrong. It would be very misleading to do that as an interpretation of the mixed stains. So I was being very critical.
THE COURT: Doctor, could you pull the microphone closer to you, please. Thank you.
MR. NEUFELD: Well, let me ask you a simple question I hope, sir.
DR. WEIR: Thank you.
MR. NEUFELD: For item 29, according to Cellmark, they see three DQ-Alpha alleles, correct?
DR. WEIR: They report a 1.1, a 1.2 and a 4.
MR. NEUFELD: Okay. And you would agree, sir, that Mr. Simpson's profile on the reference sample is a 1.1, 1.2; is that correct?
DR. WEIR: That's right, yes.
MR. NEUFELD: So he cannot be excluded.
DR. WEIR: He cannot be excluded.
MR. NEUFELD: And you would also agree that Nicole Brown Simpson's profile is a 1.1, 1.1, correct?
DR. WEIR: Yes. That's correct.
MR. NEUFELD: And she can't be excluded?
DR. WEIR: On the basis of the DQ-Alpha typing from Cellmark alone, she could not be excluded.
MR. NEUFELD: Well, she also could not be excluded on the basis of a polymarker typing as well; isn't that correct?
DR. WEIR: I'm not sure. I would have to look at the details.
MR. NEUFELD: Well, do you have that report handy?
DR. WEIR: Yes. I'm just--so this is item--I need to be careful. This is item 29.
MR. NEUFELD: Yes.
DR. WEIR: The polymarker from Cellmark. There are five of these loci and the mixture has--at LDLR has alleles a and B and Nicole Brown has an a and a B. So she's not excluded. GYPA has A and B as does Nicole Brown. She's not excluded. HBGG has an A, a B and a C. Nicole Brown has an A and a B. Not excluded. D7S8 has an A and a B and a mixture, and also Nicole Brown is AB. Not excluded. And GC, the mixture has an A, a B and a C and Nicole Brown has an AC. So she's not excluded on any of those systems.
MR. NEUFELD: And neither is Mr. Simpson; isn't that correct?
DR. WEIR: Mr. Simpson's profile is not the same, but he is also not excluded.
MR. NEUFELD: So the one allele in this mixture which neither Mr. Simpson nor Nicole Brown Simpson can account for is the number 4 allele, correct?
DR. WEIR: Well, now we have switched, have we, to the DOJ's PCR determination?
MR. NEUFELD: No. I'm looking at Cellmark's.
DR. WEIR: Oh, excuse me. The DQ-Alpha, the allele 4, that's right. That's not contained in those profiles of Simpson or brown.
MR. NEUFELD: Okay. And you also know and I think you stated in your report and Dr. Cotton has already testified in this case that Mr. Goldman is excluded from the--from being a contributor to this stain as well; isn't that correct?
DR. WEIR: Yes. Mr. Goldman has a 1.3, which is not seen in the mixture. So he was excluded.
MR. NEUFELD: So the question, sir, is, who contributed the number 4 allele. And what I want you to do, Dr. Weir, is simply answer one question for me. Is there a method that you can utilize to determine what percentage of the population could contribute the 4 allele to this mixture? Can that--can that question be answered?
DR. WEIR: It can be answered, but I wouldn't answer it in this context. I mean, I wouldn't do that calculation because it would have no bearing--
MR. NEUFELD: Your Honor, if you would instruct the witness to be responsive. The question simply asked him can he do it.
THE COURT: No. No. He's entitled to explain his answer, counsel.
DR. WEIR: I would not do such a calculation to interpret a mixture. We--these--these mixtures stains are not really any different from the other ones. They are profiles of DNA and they have various characteristics. The point of what we're doing is to try and say how likely would we see that profile if the--if the Prosecution's theory was correct and they have the--they say they know who contributed, then what we see is as we would expect. If we know who the contributors were and we see the profiles, then we don't have any surprises.
THE COURT: Next question.
MR. NEUFELD: Sir, what I want to ask you to do--I'm sorry. Can you though do the calculations that I simply requested?
DR. WEIR: I can, but I wouldn't.
MR. NEUFELD: When you say you wouldn't, you mean, they're not the ones that you think are appropriate; is that correct, sir?
DR. WEIR: No. They are not appropriate.
MR. NEUFELD: Well, sir, the question that I'm asking you is the very question or the very methods described in the NRC report which in your report you state that you disagree with; isn't that correct?
DR. WEIR: I think I followed that statement. The--the--if the NRC's recommending add up the single contributors, then I disagree because it's wrong.
MR. NEUFELD: Now, I want you to follow for this jury, if you would, the approach described in the NRC report which you think is wrong just so we can provide this jury with some other frequencies.
MR. CLARKE: Objection. Misstates the evidence.
THE COURT: Rephrase the question.
MR. NEUFELD: What I would like you to do, sir, is, using the data that was available to Cellmark in this case, I would like you to calculate the frequencies of all people in the population who have the potential of contributing the number 4 allele to this mixture. And what I would like you to rely on, sir, in doing your calculations--
MR. NEUFELD: What's next in--
THE CLERK: 1201.
THE COURT: 1201.
MR. NEUFELD: 1201? Ask this be marked as Defendant's 1201. I've shown a copy of it to--
THE COURT: Is this the FBI database?
MR. NEUFELD: No. Cellmark's.
THE COURT: Cellmark. All right.
(Deft's 1201 for id = Cellmark database)
MR. NEUFELD: Showing the witness 1201. You said you've worked with Cellmark over the years, sir?
DR. WEIR: Yes.
MR. NEUFELD: You're a consultant to Cellmark?
DR. WEIR: No, I'm not a consultant, but my university has a contract with them.
MR. NEUFELD: And the university has a contract to do consultant work for Cellmark?
DR. WEIR: The university has a contractual arrangement to undertake data analysis. I don't think that's a consultancy.
(Brief pause.)
MR. NEUFELD: One moment.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Dr. Weir, have you ever seen this database before that I put before you?
DR. WEIR: This is not a database. This is a list of frequencies, and I have seen it, yes.
MR. NEUFELD: I'm sorry. Okay. And this is, as you know, the frequencies and the frequency table that Cellmark says it uses when it does its calculations for DQ-Alpha profiles; is that correct?
DR. WEIR: Yes. That's true.
MR. NEUFELD: All right. Now, actually what I would like to do, sir, is ask you one preliminary question before we get to the question about the 4 allele. And that question is, sir, what I would like you to calculate is the percentage of the population that cannot be excluded as contributing to this mixture, okay? That's a very different question than the question that you answered before to the jury, but it's a question I would like you to answer using that database.
DR. WEIR: I'm very uncomfortable in doing any calculations I know to be wrong and not relevant to this data.
MR. NEUFELD: I appreciate--
DR. WEIR: I don't--I don't feel comfortable at all you using my reputation to give credence to some numbers which I don't believe should be calculated.
MR. NEUFELD: I appreciate that, sir, but I'm going to ask you to just simply answer my questions.
DR. WEIR: And I'll repeat my objection to doing so. I will do so if instructed, but I object very strongly.
MR. CLARKE: I'm going to enter an objection under 352 based on this evidence as misleading and confusing based on the evidence before the Court and the jury as well as irrelevant.
MR. NEUFELD: Your Honor, it's a speaking objection.
THE COURT: It is. Sidebar, court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at the sidebar. What's your authority for being able to force an expert witness to make calculations that he doesn't agree with?
MR. NEUFELD: It's not a question of making calculations. I am allowed to ask him a question, and the question--
THE COURT: Keep your voice down.
MR. NEUFELD: The question I asked him is, can one calculate the frequencies of all possible contributors to this mixture. He said, "One can, but I disagree with it." That's his answer on that. He also made it clear--
THE COURT: Keep your voice down.
MR. NEUFELD: He also made it clear it's his position you can do the calculations but he disagrees with it. All I can ask him to do--since he's already testified to the frequencies for Cellmark databases, I am going to simply ask him at this point to provide those kinds of frequencies for the people who cannot be excluded. That's all. He can say, "I disagree with it," as much as he wants. I can ask him using items which are in evidence, what he has looked at has already--you know, it's the Cellmark database he's familiar with, the frequencies on there and at--
THE COURT: Mr. Clarke.
MR. CLARKE: Well, first of all, NRC--Mr. Neufeld has characterized what the NRC report has said. The witness already testified that the only way this database is part of that report is if you assume that that's what they meant. But more importantly, at this point, we've been given six different charts involving a technique that the evidence shows at this point is extremely confusing, well, extremely misleading, and I think going through these charts with this state of the evidence serves no purpose. It's irrelevant and confusing to the jury based upon this evidence thus far.
THE COURT: How much more are you going to do besides just this chart?
MR. NEUFELD: I'm not doing the other--
THE COURT: Counsel, if I have to warn you to keep your voice down one more time, it's going to cost you 250 bucks.
MR. NEUFELD: It's not just this one. Just all contributors to the mixture other than the one shown, all people that contributed 4 alleles. I'm not going to do the other items of evidence. I was going to, but I'll dispense with all of them.
MR. CLARKE: We also--we also have a witness who has said this is scientifically wrong. We're having him make a series of manipulations that the evidence shows is wrong.
THE COURT: It is cross-examination and this is a computing theory. All right. I am going to overrule it, but I'm limiting you to those two areas. And--excuse me, counsel--you have to give him the opportunity to say that he vehemently disagrees with this, but he can do it.
MR. NEUFELD: Fine.
MS. CLARK: Your Honor, Mr. Neufeld is--
THE COURT: No. No. You don't get to talk.
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Proceed.
MR. NEUFELD: Thank you. Now, I understand that you said that you disagree with this approach, but I'm simply asking you to do certain calculations, make certain calculations to answer this question which is what percentage of the population could be included as a contributor to this profile; namely, the 1.1, 1.2 and 4 alleles that you see on the steering wheel. And what I would like you to do, sir--
DR. WEIR: Excuse me. Your original question was "Excluded." So we're now talking about "Included"; is that correct.
MR. NEUFELD: No. That percentage of the population which cannot be excluded, which would be the same I believe as that percentage of the population which could be included; is that correct?
DR. WEIR: I think so, yes.
MR. NEUFELD: All right. And, as you know, it is Cellmark's approach when it looks at those different frequencies, it takes the highest frequency from the different databases; is that correct?
DR. WEIR: Yes. They have--for Caucasians, they have three data sets they rely on, that they have access to, and they take the highest frequency for each allele.
MR. NEUFELD: Okay.
DR. WEIR: But--excuse me--here, this table is of pairs of the genotypes, the pairs of alleles.
MR. NEUFELD: I'd like to put the table up as exhibit 1202.
THE COURT: All right. 1202. Do you have a copy for Dr. Weir?
MR. NEUFELD: I'm sorry. What?
THE COURT: Do you have a copy for Dr. Weir since it's hard to see some of the details?
MR. NEUFELD: Certainly.
(Brief pause.)
MR. NEUFELD: Defendant's 1201.
THE COURT: 1201 or 1202?
MR. NEUFELD: 1202. I apologize, your Honor.
(Deft's 1202 for id = table)
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Now, looking at this table, sir, is it clear that the first column refers to the various potential genotypes that could contribute to the mixture found on the steering wheel?
DR. WEIR: That--that doesn't quite state it accurately. This is the frequencies of single persons that could have contributed to the stain we know came from more than one person.
MR. NEUFELD: And would you agree, sir, that a mixture is comprised of different individuals?
DR. WEIR: A mixture is a mixture of more than one person. Certainly.
MR. NEUFELD: And so to get a mixture, it would require the contributions of different individuals; would it not, sir?
DR. WEIR: The mixture would require the contributions of more than one person. That's right.
MR. NEUFELD: And by that, you mean by different individuals; is that correct, sir?
DR. WEIR: Yes. Yes, I do.
MR. NEUFELD: Okay. So now what I would like you to do is to look at the individual genotype frequencies for those individuals who could contribute to this mixture.
DR. WEIR: I don't think I can do that from this chart. I don't see the frequencies of the pairs of individuals that could have contributed.
MR. NEUFELD: Sir, I'm asking you to calculate--I understand how you disagree with this approach. I'm simply asking you to calculate the individual frequencies. And my first question, sir, is, according to the chart that you have, are there frequencies listed in the Cellmark table for the genotype frequency for the 1.1, 1.1 genotype?
DR. WEIR: Yes, there are.
MR. NEUFELD: And what frequency do they give?
DR. WEIR: Well, Cellmark lists the 1.9 percent.
MR. NEUFELD: Okay. And do they also list a frequency for their African American database?
DR. WEIR: Oh, yes. Yes. That's 2.3 percent.
MR. NEUFELD: And do they also list one for their Hispanic database?
DR. WEIR: And that is 16 percent.
MR. NEUFELD: And then do they also have a--the genotype frequencies for the second genotype, 1.1, 1.2?
DR. WEIR: Yes, they do.
MR. NEUFELD: And just to save some time, are the numbers that I have on that table consistent with the numbers that you have on the Cellmark table?
THE COURT: Referring to 1202 and 1201 respectfully.
DR. WEIR: The numbers on the shorter table are an extraction of the numbers on the bigger table, yes.
MR. NEUFELD: There's nothing inaccurate in my writing down recording the numbers on Defendant's exhibit 1202; is that correct?
DR. WEIR: I don't see any. I'm sure they're correct.
MR. NEUFELD: Okay. And can you think of any other genotypes of individuals who could contribute to the mixture on the steering wheel other than the six genotypes that I've listed on the table?
DR. WEIR: Well, the contributors to the mixture of course are a mixture of people. There's no single genotype, not listed here, that did not contribute. Did I get that right? I think the answer is yes.
MR. NEUFELD: Okay. Yes, there are no others other than what's listed here; is that correct?
DR. WEIR: Yes, sir.
MR. NEUFELD: Okay. And, sir, if you now sum up the frequencies of individual frequencies who could contribute to this mixture, first using the Caucasian database that Cellmark relies upon, is the number 45.4 percent an accurate number of the summation of those frequencies?
DR. WEIR: I'm not going to check that. I'll assume that that's accurate.
MR. NEUFELD: Okay. And does the number 59.2 percent reflect the sum of the frequencies of individuals who could contribute to this mixture in Cellmark's African American database or table that they rely on?
DR. WEIR: Yes. Those numbers probably sum to 59 percent.
MR. NEUFELD: And is the frequency 48.8 percent of the population the number that one would arrive at relying on Cellmark's Hispanic database?
DR. WEIR: That's true.
MR. NEUFELD: Now, sir, what I would like you to do is go back to the question that I initially posed and then walked away from, which is, what percentage of the population could contribute that number 4 allele that we know that neither Mr. Simpson could contribute nor Nicole Brown Simpson could contribute and we know Ronald Goldman is also excluded. And I want to ask you just about that one now. Do you have another copy?
MR. NEUFELD: Your Honor--
(Brief pause.)
MR. NEUFELD: And I'm going to ask that this next slide be marked as Defendant's 1203.
(Deft's 1203 for id = slide)
MR. NEUFELD: And I'll offer you a miniature copy of it, Dr. Weir, to assist you.
DR. WEIR: Thank you. Thank you.
MR. NEUFELD: Now, Dr. Weir, again, what I want you to do is rely on the Cellmark tables. And just looking at the possible genotypes that could contribute the number 4 allele, is this slide correct in saying that the three possible genotypes are the 1.1, 4, the 1.1--I'm sorry. Let me start all over again. Would you agree, sir, with this table; that the genotypes of individuals who could contribute the 4 allele to this mixture on the steering wheel would be somebody who has either a 1.1, 4 genotype, somebody who has a 1.2, 4 genotype or somebody who has a 4, 4 genotype?
DR. WEIR: Yes. If the person was a contributor to the mixture, they must--and they gave a 4, they must have a 4 and they must not have anything other than what we see in the mixture. So that's correct.
MR. NEUFELD: Okay. And again, looking and relying on the Cellmark tables in front of you, sir, are the frequencies that I have here for somebody who has a 1.1, 4 genotype correct for the three different databases; namely 9.5 percent, 7.7 percent and 9.9 percent of the population?
DR. WEIR: Well, they're in a different order. They're in a different order than from what's on the chart, but at least I think they're correct. Yes, I think they are.
MR. NEUFELD: Okay. And are the frequencies in the three different Cellmark databases for somebody who has a 1.2, 4 genotype correct in the slide on the board?
DR. WEIR: The three numbers are there in a different order, yes. Uh-huh.
MR. NEUFELD: All right. And finally, the frequencies for somebody who has a 4.4 genotype, are the three numbers up there the correct population frequencies for that particular genotype in the three different Cellmark databases?
DR. WEIR: Yes.
MR. NEUFELD: Now, I'd like the next slide, which will be 1204.
THE COURT: All right. 1204.
(Deft's 1204 for id = slide)
MR. NEUFELD: Doctor, you already have that before you.
DR. WEIR: I can't read that small. I'll go from the screen.
MR. NEUFELD: Okay. Fine. And, sir, if you simply sum the frequencies for the various genotypes as is shown in this slide, according to Cellmark's database, would you agree, sir, that 40 percent of the African--approximately 40 percent of the African American population, according to Cellmark's database of course, has a genotype which is consistent with being a part of this mixture?
DR. WEIR: I think that's right. 40 percent is the sum of all the individual people who have one of their alleles a type 4.
MR. NEUFELD: And, sir, would you agree that, again, using the same Cellmark tables, that approximately 31 percent of their Caucasian--of the Caucasian population based, of course, on their Caucasian database also could not be excluded as a possible contributor to this mixture?
DR. WEIR: That's right.
MR. NEUFELD: And finally, given Cellmark's Hispanic database, that approximately 38.4 percent of the population could not be excluded as being a contributor of that 4 allele?
DR. WEIR: Well, I do have to accompany my response by saying that that's correct, but I don't think it has any bearing on the interpretation of the mixture.
MR. NEUFELD: I appreciate that. Now, Dr. Weir, during your direct examination, you defended or supported shall we say Cellmark's and DOJ's use of the product rule to generate the frequencies in this case; is that correct?
DR. WEIR: That's right. Yes.
MR. NEUFELD: Would you agree, sir, that within the fields of statistics and population genetics, there has been controversy regarding the appropriateness of the product rule as it is used, for instance, by Dr. Cotton and Mr. Sims in this case?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Overruled.
DR. WEIR: You'll have to be more specific. I'm not sure exactly what you're meaning. A lot of people said a lot of different things. I don't--you started talking about independence and then you started talking about controversy. So I need to understand what you're asking me.
MR. NEUFELD: Well, has there been controversy about the methodologies used by laboratories such as Cellmark and DOJ to calculate the rareness of a particular DNA profile over multiple loci?
DR. WEIR: Well, I'm not sure that I can answer that very clearly. There have been--there are published ways validating the procedures used. Some people have made statements critical. But the various statements are all over the board. So we need to be focused on what specific aspect you're talking about. We can discuss that in some detail.
MR. NEUFELD: Well, let me ask you this, Dr. Weir. When you--did you testify yesterday morning at a hearing in this courtroom prior to your testifying before the jury?
DR. WEIR: Yes, I did.
MR. NEUFELD: And when you testified at that hearing, didn't you say that you wrote letters to different publications because you believed that the way those publications covered the debate on these issues was one sided? Did you say that yesterday?
DR. WEIR: Yes, I said that.
MR. NEUFELD: Okay. So when you said there was a debate, you meant that there was a debate within the scientific community; did you not?
DR. WEIR: Not quite. There was a debate--and I would classify those--that debate as being almost in the popular press. That wasn't a scientific literature debate. So I want to be clear about that. I have written letters to the editors of journals that have essentially carried news stories about this forensic uses of DNA. That's different from the scientific literature.
MR. NEUFELD: But you were referring to a debate when you gave that testimony yesterday?
DR. WEIR: The debate was in the--in this--in this--the debate was not in the scientific literature.
MR. NEUFELD: Well, Dr. Weir, you said that you are familiar with the national academy of science, NRC, report, correct?
DR. WEIR: Yes, I am.
MR. NEUFELD: And this report was authored by a committee of distinguished scientists and forensic scientists and others; is that correct, sir?
DR. WEIR: That's certainly correct.
MR. NEUFELD: And you would agree the national academy of science, which is responsible for this undertaking, is an extremely prestigious scientific organization in this country. Is that a fair statement?
DR. WEIR: Yes. It's a very prestigious organization.
MR. NEUFELD: Would it be perhaps the most prestigious organization in this country?
DR. WEIR: I think that's a fair statement.
MR. NEUFELD: And this report represents the national academy of sciences, national research council's effort to address the various issues involved in DNA technology and forensic science; is that correct?
DR. WEIR: Yes. It's a report set up by the--by that body and actually conducted by a committee of members outside their body, but it's under their ages, yes.
MR. NEUFELD: Well, the chairman of this committee was Dr. Victor McKusick; is that correct?
DR. WEIR: Yes, it was.
MR. NEUFELD: And you're familiar with Dr. McKusick's reputation; are you not?
DR. WEIR: Yes, I am.
MR. NEUFELD: He's an extremely distinguished scientist; is he not?
DR. WEIR: Yes, he is.
MR. NEUFELD: And he is an extremely highly-regarded geneticist; is he not?
DR. WEIR: Yes.
MR. NEUFELD: In fact, Dr. McKusick, who is the chairman of this committee that authored this book, is a member of the national academy of science, isn't he?
DR. WEIR: Yes, he is.
MR. NEUFELD: By the way, are you a member of the national academy, sir?
DR. WEIR: No, I'm not.
MR. NEUFELD: Now, aside from Dr. McKusick, Dr. Weir, there were other very highly regarded geneticists on this committee; is that correct?
DR. WEIR: Yes. Certainly.
MR. NEUFELD: And there are also highly-regarded forensic scientists on this committee; is that correct?
DR. WEIR: Well, I assume so. I'm not familiar with that field so much, but I assume they're reputable and highly regarded.
MR. NEUFELD: Well, you've attended some of the meetings within the forensic community over the last few years, haven't you, and given talks?
DR. WEIR: Yes. Uh-huh. I'm just--all I'm saying is, I'm not as familiar with the--with those people, but I understand that they're very good.
MR. NEUFELD: All right. Well--do you know who Paul Ferrara is, for instance?
DR. WEIR: Yes. I have met him.
MR. NEUFELD: And do you know him as the head of the Virginia division of forensic science?
DR. WEIR: Yes, I do.
MR. NEUFELD: And based on what you know of him and what you've heard in the community, does he have a very distinguished reputation--
DR. WEIR: Yes. Certainly.
MR. NEUFELD: --in the forensic science community?
DR. WEIR: Yes. Certainly.
MR. NEUFELD: And he also sat on this NRC committee; did he not?
DR. WEIR: Yes.
MR. NEUFELD: And Dr. Haig Kazazian, do you know who he is, sir?
DR. WEIR: Yes, I do.
MR. NEUFELD: And is Dr. Haig Kazazian a very distinguished geneticist in this county?
DR. WEIR: Oh, certainly.
MR. NEUFELD: And he too sat on this committee and authored this report, correct?
DR. WEIR: Yes.
MR. NEUFELD: And then we come to Dr. Mary-Claire King. She was another member of the committee that authored this report and she too a very distinguished geneticist?
DR. WEIR: Yes.
MR. NEUFELD: In fact, in the document which you've read, they described Dr. King's expertise is in the area of genetics as well as population genetics. Are you aware of that?
DR. WEIR: Yes, I believe that's what it states. Yes. And it's a true statement.
MR. NEUFELD: All right. And also included in the same group is Dr. Eric Lander; is that correct?
DR. WEIR: Yes. Dr. Lander and Dr. McKusick and I have a bond in common, of course, because we run the subsequent NRC committee to examine some of these issues.
MR. NEUFELD: Well, when you say "The subsequent NRC committee"--
DR. WEIR: The subsequent panel.
MR. NEUFELD: --you're not on the committee that's asked to draft another report. You were on the committee that considered the propriety of setting up a second committee; isn't that correct?
DR. WEIR: We were on the committee that unanimously recommended a new report, the issue to clarify some of the problems with the present report. Yes.
MR. NEUFELD: And was Elizabeth Thompson also on that committee?
DR. WEIR: Yes, she was.
MR. NEUFELD: And you're aware that she disagrees with you on some of these issues, aren't you?
DR. WEIR: Oh, no--
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Overruled.
DR. WEIR: No. I'm certainly not.
MR. NEUFELD: How about, was there a Dr. Zabell who was also on that committee?
DR. WEIR: I don't remember Dr. Zabell being there, but I've seen his name. So obviously he was there, yes.
MR. NEUFELD: And are you aware that Dr. Zabell also disagrees with your position on some of these issues of the correct statistical approach to interpreting DNA evidence?
MR. CLARKE: Objection. Calls for hearsay.
THE COURT: Sustained.
MR. NEUFELD: And is Dr. Lander a very distinguished member of the scientific community.
DR. WEIR: Dr. Lander and I I think are in agreement on the need for a new committee. He is very distinguished, yes.
MR. NEUFELD: Excuse me, sir.
MR. NEUFELD: Your Honor, I would ask you to ask the witness to be responsive.
THE COURT: Answer the question, doctor.
MR. NEUFELD: Is he a distinguished member of the scientific community?
DR. WEIR: Certainly. Dr. Lander is a very good scientist.
MR. NEUFELD: And Dr. Henry Lee was also on that committee. Are you aware of Dr. Henry lee's reputation in the forensic science community?
DR. WEIR: Only vaguely. I've seen his name in the newspapers.
MR. NEUFELD: And Professor--Dr. Richard Lempert was on that committee as well, correct?
DR. WEIR: Yes. I know Dr. Lempert now quite well.
MR. NEUFELD: And he's an expert in the field of statistical inferences in evidence; is he not?
DR. WEIR: Yes. He and I share a common belief in the correct way to interpret these evidence.
MR. NEUFELD: We'll get to that a little bit later, Dr. Weir. And Dr. George Sensabaugh was also on this committee, correct?
DR. WEIR: Yes.
MR. NEUFELD: And he's also a very highly-regarded member of the forensic science community; is that correct?
DR. WEIR: Yes.
MR. NEUFELD: And Dr. Thomas Marr is also a scientist who sat on this committee as well, right?
DR. WEIR: Yes. I don't know Dr. Marr. I know his name is listed, but I don't know him.
MR. NEUFELD: Well, as--not only do you know his name, but you know his reputation as a leading geneticist?
DR. WEIR: I must confess I don't in any detail.
MR. NEUFELD: All right. Now, this book authored by the NRC committee and authored by the individuals who I just listed to you states, does it not, that there is a substantial--
MR. CLARKE: Objection. Calls for hearsay, your Honor.
THE COURT: Sustained.
MR. NEUFELD: Sir, in your report, do you cite the NRC report?
DR. WEIR: I list it, but my report does not depend in any way on the NRC report.
MR. NEUFELD: Have you considered the NRC report in reaching your positions on the appropriateness of using certain statistical methods for interpreting DNA evidence?
DR. WEIR: Certainly not.
MR. NEUFELD: You haven't considered it?
DR. WEIR: Certainly not.
MR. NEUFELD: Have you, in fact, written papers and articles or let