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. Good morning, counsel. Back on the record in the Simpson matter. The Defendant is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, Mr. Neufeld. The People are represented by Miss Clark and Mr. Darden, also Mr. Harmon, Mr. Clarke and Miss Martinez and Mr. Fairtlough. I see I missed Mr. Thompson and Mr. Douglas. All right. Counsel, before we get started this morning, there was a remaining matter the Court had to rule upon regarding the manner in which the Prosecution will be allowed to present evidence concerning mixtures, for example, the mixture blood sample that came from Ronald Goldman's shoe. And counsel, I reviewed the case authority cited by the Prosecution yesterday, People versus Wash. I also reviewed the NRC report again, section dealing with mixed samples, and specifically the discussion that is approximately page 55 to page 75 of the NRC report. And what I would like is, out of the presence jury, an expert explanation as to how these autorads are read with regards to these mixtures and what the significance is and why or why I should not require a statistical analysis as is suggested by the NRC at page 59. All right. Mr. Clarke, your evidence. Ball is in your Court.
MR. CLARKE: Yes. Dr. Cotton then again, your Honor.
THE COURT: All right. Dr. Cotton.
MR. NEUFELD: Your Honor, just to clarify, do you want this also to apply to the second mixture which they intend to introduce testimony of in the steering wheel, 29?
THE COURT: Yes, 78 and 29.
Robin Cotton, called as a witness by the People under evidence code section 402, having been previously sworn, resumed the stand and testified further as follows:
THE COURT: Good morning again, Dr. Cotton. You are reminded you are under oath for the purpose of this proceeding. Mr. Clarke.
MR. CLARKE: Yes. Thank you, your Honor.
DIRECT EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Cotton, are you familiar with the issue that the Court has framed and wishes you to address?
DR. COTTON: Yes, I am.
MR. CLARKE: All right. With respect to in particular item no. 78, the bottom of Mr. Goldman's shoe, did you perform RFLP typing on that particular sample that was provided to your laboratory?
DR. COTTON: Yes, we did.
MR. CLARKE: In the course of that RFLP typing what results did you obtain?
DR. COTTON: We obtained a banding pattern that was clearly a mixture and--
THE COURT: How do you know it is clearly a mixture?
DR. COTTON: The best indication from the banding pattern that it is a mixture is that the intensities of the bands in the pattern are different and there are more than eight bands in the cocktail. And in the individual probes there is at least one probe where you see three, so the total number of bands and the differing intensities of the bands confirms that in fact you have more than two people there.
MR. CLARKE: With the Court's--
DR. COTTON: I mean, sorry, more than one person there.
MR. CLARKE: Your Honor, with the Court's permission could we illustrate that by use of the overhead projector?
THE COURT: Yes. I would like to see the autorad.
MR. CLARKE: Dr. Cotton, do you have the original autorad that deals with item 78?
DR. COTTON: Yes.
(Brief pause.)
MR. CLARKE: I believe that would have been my next exhibit anyway. Shall we just go ahead and mark that as the People's next in order?
THE COURT: Might as well.
MR. CLARKE: 257, I believe.
THE COURT: All right. People's 257, but remark it in front of the jury so that they are aware of it.
MR. CLARKE: Yes.
(Peo's 257 for id = autorad)
MR. CLARKE: In fact, I think we may have discussed this yesterday in terms of marking the exhibits, with respect to this particular autorad there is what the witness has just described as a "cocktail," and then there are associated autorads that basically look at the individual loci one at a time, so would the Court like that, for instance, marked 257 a through whatever? I think that might be easier.
THE COURT: All right. If it is associated to the same test, I would assume that would be the most logical way to do it.
MR. CLARKE: It is.
THE COURT: All right.
MR. CLARKE: All right. Dr. Cotton, with regard to this particular test, that involved item no. 78?
DR. COTTON: That's right.
MR. CLARKE: Did it involve any other test samples, that is, evidence samples in this case, other than known samples?
DR. COTTON: Yes. There are two other evidence samples displayed on this film.
MR. CLARKE: What items are those?
DR. COTTON: They are item 52 and item no. 12.
MR. CLARKE: All right. How many autorads total are there in this one particular RFLP test?
DR. COTTON: Seven.
MR. CLARKE: With respect to those autorads, would it be appropriate to begin with what has been referred to as the cocktail autorad?
DR. COTTON: For this purpose I would say yes.
MR. CLARKE: Okay. Then your Honor, if we could mark the cocktail as a.
THE COURT: 257-A.
(Peo's 257-A for id = autorad cocktail)
MR. CLARKE: And then with respect to the remaining autorads, do they then represent individual loci or individual genetic markers typed one at a time?
DR. COTTON: Yes.
MR. CLARKE: Are there names for each of those markers? Perhaps we can--would the Court like the witness to describe what marker will be b and which marker c and so forth at this point?
THE COURT: You need to show me why this comes in.
MR. CLARKE: All right.
THE COURT: So--
MR. CLARKE: Would it be appropriate to mark the first individual genetic marker test, ms1, as the letter b?
DR. COTTON: Yes.
MR. CLARKE: Is ms1 simply the description of that particular marker?
DR. COTTON: Yes.
(Peo's 257-B for id = autorad)
MR. CLARKE: Would it be appropriate to mark as next in order that autorad that deals with the probe ms-31?
DR. COTTON: Yes, but there are two of them and you might want to distinguish--distinguish them by their development date.
MR. CLARKE: Okay. As far as c then, what date should we attach to that?
DR. COTTON: 10/11/94.
(Peo's 257-C for id = autorad)
MR. CLARKE: And is that date actually on that particular autorad?
DR. COTTON: Yes.
MR. CLARKE: All right. And with respect to the second autorad dealing with this genetic ms-31, what date is it?
DR. COTTON: 11/1/94.
THE COURT: All right. That will be d.
(Peo's 257-D for id = autorad)
MR. CLARKE: With regard to e, would it be appropriate that that be the particular genetic marker that is the autorad resulting from the test of the genetic marker ms-43?
DR. COTTON: Yes.
(Peo's 257-E for id = autorad).
MR. CLARKE: And that must leave us one genetic marker. Is that g-3?
DR. COTTON: We have two left, g-3 and ynh-24.
MR. CLARKE: So f would be g-3.
(Peo's 257-F for id = autorad)
DR. COTTON: Yes.
MR. CLARKE: And g would be ynh-24?
DR. COTTON: Yes.
(Peo's 257-G for id = autorad)
MR. CLARKE: Are these letters and numbers simply designations for these different genetic markers?
DR. COTTON: Yes.
MR. CLARKE: All right. Then with the Court's permission what I'm going to ask the witness to do is, first of all, to look at these autorads in the order that they have been marked by projecting them on the elmo machine and then having the Court--I'm sorry, having the witness describe item 78 and its results.
THE COURT: All right.
THE COURT: Counsel, for the purposes of this hearing, what I'm interested in is how do we determine that it is a mixture and then my next question is once I come to the conclusion that there is a scientific basis for determining that there is a mixture, the next thing I'm interested in is why shouldn't I require a statistical analysis or statistical significance factor attached to that conclusion that the party--relevant parties aren't excluded based upon the comments of the NRC at page 59?
MR. CLARKE: I understand.
MR. NEUFELD: Your Honor, just to save time, we will stipulate that it is a mixture so you can get right on to the second issue if you want.
THE COURT: I would like to see it.
MR. NEUFELD: Okay.
MR. CLARKE: All right. Dr. Cotton, could you start with the cocktail then, exhibit 257-A, I believe.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Mr. Clarke.
MR. CLARKE: Yes. Thank you, your Honor.
MR. CLARKE: Dr. Cotton, can you now see this particular autorad 257-A, the cocktail?
DR. COTTON: Yes, but it would be easier if I could come down there.
MR. CLARKE: All right. Then with the Court's permission then could the witness come down so that she can view the projector screen and if necessary use the point maker?
MR. CLARKE: Now, Dr. Cotton, without getting into detail about exactly what is on this autorad in terms of items other than 78 and the known samples, is this the particular autorad that would have been the first one developed in your examination using RFLP typing of item 78?
DR. COTTON: Yes, it was.
MR. CLARKE: Now, as far as the--as the results that are shown there, do they demonstrate the existence of a mixture?
DR. COTTON: For item 78 they do.
MR. CLARKE: How do you know that?
DR. COTTON: If you count up the number of bands, if I remember correctly in this cocktail there are eleven. The cocktail is a group of four probes, so if you expect to see two bands maximum with each of four--with each probe, then for a single person with a group of four you would expect to see eight.
THE COURT: Here we have eleven?
DR. COTTON: And here we have eleven.
THE COURT: And they appear to be of differing intensities?
DR. COTTON: Yes. You can see that the lower three bands are much different in intensity than the upper bands--than the band above them and that is the second clear indication that you have a mixture there.
MR. CLARKE: Now, with regard to this initial autoradiograph, and you have described how you are able to determine a mixture, were you able to make any comparisons with known individuals who are also shown on this autorad?
DR. COTTON: There were--essentially you are making comparisons with all the known individuals on the autorad and two of the known individuals on the autorad are consistent with being contributors to item 78.
MR. CLARKE: Who are those two individuals?
DR. COTTON: Nicole Brown and Ronald Goldman.
MR. CLARKE: Now, with respect to these--and you have identified three lower bands as being less in intensity than the remaining bands?
DR. COTTON: Yes.
MR. CLARKE: Are those, based on this initial autorad, and I'm referring to the three bands, the three less intense bands, are they attributable to one person or the other?
DR. COTTON: Yes, they are attributable to or consistent with Mr. Goldman.
MR. CLARKE: Are they consistent or inconsistent, that is, the three bands again, with Nicole Brown?
DR. COTTON: They are inconsistent with Nicole Brown.
MR. CLARKE: Based on this first test or first typing process, using this RFLP method, what conclusions were you then able to reach?
DR. COTTON: For that sample, the conclusion would be that you do have two people there and the possible contributors from the known individuals that we have would be the major amount of DNA coming from or consistent with Nicole Brown, and the minor amount of DNA consistent with some of the bands in Mr. Goldman's pattern. There are not all of his bands there in this cocktail; there are only three.
MR. CLARKE: Is this feature of difference in intensity something that you have experienced in the past in your case work?
DR. COTTON: Yes. It is not at all unusual to see this kind of situation.
MR. CLARKE: Now, do you in fact go further and look at these genetic markers individually?
DR. COTTON: Yes.
MR. CLARKE: All right. First of all, while the cocktail autorad, 257-A is on the projector, are there any further features about this autorad that are significant as far as determining the existence of this mixture and who may or may not have contributed to it?
DR. COTTON: No, I think we've covered them.
MR. CLARKE: All right. Then your Honor, I would like to use 257-B, if I could.
THE COURT: All right. Mr. Clark, at this point I'm persuaded that there is a scientific basis for determining the mixtures here and from what I have learned so far there is a basis to determine that there is an ability to differentiate contributors.
MR. CLARKE: All right.
THE COURT: All right. So let's cut to the chase.
MR. CLARKE: Okay. Actually, perhaps I can do it in just a very short form by asking the witness.
MR. CLARKE: With respect to the remaining autorads that deal with these genetic markers individually, what information, that is what further information, if any, did they provide you in interpreting the existence of this mixture and who may or may not have been a contributor to it?
DR. COTTON: In using the individual films, there is a small additional amount of information. One is on the ms-1 film there are four bands seen. Two are consistent with Nicole Brown and two are consistent with Mr. Goldman, and one of those bands that is seen on that film is not visible on this cocktail. That brings the total number of bands consistent with Mr. Goldman to four and that is the total number of bands through all the testing on 78 that were consistent with Mr. Goldman. There is--I think if I remember correctly, one other piece of information on one of the other probes where you can--you see again one of the three bands that you saw initially and that may be the g-3 probe, although I would have to check to be sure, so you can identify one of the three bands from the cocktail as coming from a specific probe, one of them coming from ms1, one from another one, I think it is g-3. That leaves you a third band on that cocktail that you can't identify which probe it came from and it adds the ms1 individual film, adds a fourth band, giving you a partial pattern of a second person.
MR. CLARKE: All right. Perhaps you could retake the witness stand, Dr. Cotton.
DR. COTTON: (Witness complies.)
THE COURT: Mr. Clarke, let me interrupt you. Mr. Shuman, what article are you reading right now?
MR. SHUMAN: An article about DNA.
THE COURT: All right. I seem to see a picture of the Defendant as you turned it over; is that correct?
MR. SHUMAN: Yes, an article--
THE COURT: All right. While the jury is here, don't do that.
MR. SHUMAN: I will make sure I put it away.
THE COURT: Thank you. Mr. Clarke.
MR. CLARKE: All right. Dr. Cotton, with respect to this mixture as you have described it, you ultimately rendered conclusions about item no. 78 that you placed in your report; is that right?
DR. COTTON: That's right.
MR. CLARKE: What conclusions were reported?
DR. COTTON: We reported that the DNA banding pattern--that the DNA banding pattern from item 78 consisted of two separate patterns. One matches Nicole Brown and there are four bands remaining. Those four bands match four of Mr. Goldman's pattern. And that Mr. Goldman could not be included or definitively included or definitively excluded as the donor of those additional four bands.
MR. CLARKE: With respect to the match between eight of the bands on item 78 and Nicole Brown, did you report a frequency to describe approximately how common or how rare those characteristics shared by item 78, that is, those eight bands and Miss Brown were?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you also report an approximation of the frequencies of the characteristics shared by the additional four bands with Mr. Goldman?
DR. COTTON: No, we did not.
MR. CLARKE: Why not?
DR. COTTON: Because we only had four bands and clearly do not have a complete banding pattern, then the result is basically inconclusive with regard to Mr. Goldman, and we get that based on our opinion that the result was inconclusive. An additional frequency for those bands would not be necessary--we wouldn't normally do that.
MR. CLARKE: Would it be, in your opinion, appropriate to report frequencies for those four additional bands that could have come from Mr. Goldman?
DR. COTTON: There is nothing wrong with doing it. It--it, however, in my opinion, regardless of whether or not you attach a frequency to those four bands, it is still an inconclusive result and therefore attaching that frequency seems somewhat non-helpful.
THE COURT: What frequency calculation did you make for Nicole Brown Simpson?
DR. COTTON: We made a usual frequency calculation for all of the bands that are consistent with her using the frequencies for each band for each probe in the usual multiplication manner.
THE COURT: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: The Court addressed and you probably heard the Court address the NRC report and calculating frequency data?
DR. COTTON: Yes.
MR. CLARKE: You have--well, first of all, you are familiar with the NRC report?
DR. COTTON: Yes.
MR. CLARKE: And have you read it previously?
DR. COTTON: I have read it many times.
MR. CLARKE: With regard to the NRC report and its discussion of population frequency data, what does it say about calculating frequencies for a situation like Mr. Goldman's four-banded pattern?
DR. COTTON: Mr. Clarke, I didn't read that overnight, so I can't tell you exactly what it says.
MR. CLARKE: Okay. With respect to this type of reporting, in other words, should a frequency in your view be reported for this material? You have described how you didn't do that. You have described also the fact that it can be done. Let's shift your attention to PCR testing. First of all, was PCR typing conducted on material from this same stain?
DR. COTTON: Yes.
MR. CLARKE: With what type of results? Without getting into the actual numbers for each genetic marker, can you tell us what those results revealed?
DR. COTTON: There is clearly a mixture based on the PCR results also.
MR. CLARKE: And how do you reach that conclusion?
DR. COTTON: Umm, if I am remembering correctly, for at least one of the markers there are three alleles and again get more than two, there you have a strong indication you have a second person.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Or more than one?
DR. COTTON: Yes, or more than one, sure.
THE COURT: All right.
MR. CLARKE: With regard to those then, in that mixture were you able to determine whether or not individuals in this case, that is the known samples, any of them could be excluded or included?
DR. COTTON: Yes, we were.
MR. CLARKE: With what results as to this particular item and based on PCR typing?
DR. COTTON: The results are basically the same as the RFLP, that Nicole Brown and Mr. Goldman can be included; Mr. Simpson is excluded.
MR. CLARKE: As far as these individuals and their ability to be included, what about assigning population frequency estimates to that? How do you feel about that?
DR. COTTON: We didn't assign any population frequency estimates to that. The signals on the dot-blot are not sufficiently differentiated that you can say these two alleles must be from the major contributor and these--and this other one or two from the minor contributor. You can't really tell this apart on the PCR result, so we didn't attach any frequency to the result at all.
MR. CLARKE: So there was a different situation than the RFLP results where there was clearly a difference in intensity?
DR. COTTON: That's right.
MR. CLARKE: May I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: As far as these results, and let's take them in total now, the RFLP results as well as the PCR-based results, do they provide you any additional information about whether or not it would be appropriate to basically sum up frequencies to describe the significance of these mixtures or these alleles contained in these mixtures?
DR. COTTON: Actually, it is a little easier, I think to think about them separately as opposed to together.
MR. CLARKE: Okay.
DR. COTTON: The PCR mixture, the signals indicate there is a mixture, but it is not--you can't differentiate one contributor from the other. In that case it would not be inappropriate to basically take--do a calculation that says what's the sum of every possible contributor to this mixture. On the RFLP results, however, the signals are so well differentiated and that I think it would be very much understating the strength of the data to do that type of calculation for the RFLP result.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Would it be understating it not to provide any frequencies to describe these mixtures or this mixture?
DR. COTTON: I don't see any reason not to provide a frequency for the bands that are consistent with Nicole Brown, that they are so much more intense than the four additional bands. I don't see that calculating a frequency for those four additional bands adds a lot. That is just my opinion.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Thank you.
THE COURT: Mr. Neufeld, any questions?
MR. NEUFELD: One moment, your Honor.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: Do you have the original?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
CROSS-EXAMINATION BY MR. NEUFELD
MR. NEUFELD: Dr. Cotton, as a rule at Cellmark diagnostics when you receive samples to do DNA testing you are limiting your assessment of the evidence to the--to the DNA itself; is that correct?
DR. COTTON: Generally, yes.
MR. NEUFELD: And you are there to basically to do two things: One, determine whether bands are present, or dots, in the case of PCR typing, and two, if they are present, to estimate the frequency or rareness of that particular pattern; is that correct?
DR. COTTON: That's the normal progress of the analysis, yes.
MR. NEUFELD: Well, I mean you are not supposed to have any of the biases or other influences that, say, detectives working on the case would have? You are simply looking at it in a purely scientific fashion; isn't that right?
DR. COTTON: We are giving our estimation of what the data says.
MR. NEUFELD: And when you look at the--and when you give your estimation of what the data says, you are to do that in a way that is not biased or influenced by other non-scientific evidence in the case; isn't that right?
THE COURT: Mr. Neufeld, this is not helpful to me.
MR. NEUFELD: All right. Well, your Honor, I believe actually it will be helpful to you because it will give you a context in which to understand her impression of the autorad.
THE COURT: Counsel, I understand completely the context. I want to know why this is your motion to require the Prosecution to provide statistical significance, calculations for the mixtures. That is all I'm interested in.
MR. NEUFELD: All right. Can you please put up--light up the cocktail.
(Brief pause.)
MR. NEUFELD: Can you see it from where you are?
DR. COTTON: I would actually rather step down there, if you don't mind.
MR. NEUFELD: Please do.
DR. COTTON: (Witness complies.)
MR. NEUFELD: Now, one of the things that you were talking about before under Mr. Clark's questioning was the disparity in the intensity of certain bands as an indication of possible different sources; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: All right. Would you agree, when you look at the bands, first of all, on item 78, that if we count from the top there is a--it is difficult do see on the overhead, your Honor, but beneath the first band are there two bands very, very close together?
DR. COTTON: Yes.
MR. NEUFELD: That appear almost as--on the overhead as a single large blob, so to speak?
DR. COTTON: I don't think it looks like a single large blob. It looks like a--do you want me to use the pointer thing?
MR. NEUFELD: Please do. That will be great. Or at least point out the two bands that I'm referring to.
(Brief pause.)
DR. COTTON: Okay. Now, are you talking about these two right here?
MR. NEUFELD: That's right.
DR. COTTON: Okay. I see two bands there.
MR. NEUFELD: All right.
DR. COTTON: And the upper one is less intense than the lower one and a little bit less intense than the very top one.
MR. NEUFELD: Okay. Did you make a determination as to that--the less intense band of the two bands that are very close together, whether that is consistent--consistent with bands for Nicole Brown Simpson or for Ronald Goldman?
DR. COTTON: I believe on the--using the individual probes following the cocktail, that this band is consistent with Nicole Brown.
MR. NEUFELD: Okay. And, umm, would you agree that that light band is considerably less intense than the band directly beneath it?
DR. COTTON: Yes.
MR. NEUFELD: And the band directly beneath it is consistent with Ron Goldman, is it not?
DR. COTTON: No, I don't think so. We are talking about this darker one right here, (Indicating).
MR. NEUFELD: Yes. Go across to the column which has Ronald Goldman's pattern in it.
DR. COTTON: Yes.
MR. NEUFELD: Do you see a band in approximately the same location?
DR. COTTON: Yes, I do.
MR. NEUFELD: Okay. Now, would you agree that there is differing intensity between the band that you just described as being above that band in item 78's lane and some of the other bands that you attribute to Nicole Brown Simpson or you say are consistent with Nicole Brown Simpson?
DR. COTTON: Yes.
MR. NEUFELD: Okay. So in other words, even within the same individual, you can observe on this lane bands of differing intensities; isn't that correct?
DR. COTTON: Yes, that's right.
MR. NEUFELD: And again, if you go down to the next band, that is a band that you believe was consistent or in the same position as bands in the Nicole Brown Simpson's lane?
DR. COTTON: Yes.
MR. NEUFELD: And then you go down one more and that is another band that you believe is consistent with Nicole Brown Simpson?
DR. COTTON: Yes.
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: New and would you agree that that band that is attributable to Nicole Brown Simpson or say is Nicole Brown Simpson also has a differing intensity other than bands that you say are consistent with her profile?
DR. COTTON: It looks slightly different up here, (Indicating). If you want me to give you the best judgment, I might want to look at it here on the light box for just a second.
MR. NEUFELD: Please do.
DR. COTTON: I would be happy to look at the copy as opposed to taking the original off the thing.
(Brief pause.)
MR. NEUFELD: And so now that you have had a chance to look at it on the light box, Dr. Cotton, would you agree that that other band which I just called your attention to which you say is consistent with bands coming from Nicole Brown Simpson, that that, too, is less intense than bands above and beneath it which you will say are consistent with Nicole Brown Simpson?
DR. COTTON: Yes, slightly.
MR. NEUFELD: Okay. And now also while you are there, could you take a look at the lane next to it, item 52.
DR. COTTON: Yes.
MR. NEUFELD: Do you see that? All right. And a moment ago you said that one of the--
THE COURT: Refresh my recollection. What is item 52?
MR. NEUFELD: Item 52 is one of the drops at Bundy. In fact, it is the drop that is closest to the alleyway, your Honor.
THE COURT: Okay.
MR. NEUFELD: That is what they say it is anyway.
THE COURT: All right.
MR. NEUFELD: All right.
MR. NEUFELD: And item 52 and the banding pattern you believe represents DNA donated by one person; is that correct?
DR. COTTON: Yes.
MR. NEUFELD: And would you agree that even though you say it is from one person, that as far as band intensity goes, that the bands--that the three bands--the first three bands at the top are considerably fainter than the three lower bands?
THE COURT: Mr. Neufeld, what has this got to do with the mixture?
MR. NEUFELD: What it has to do with the mixture is one of the criteria that this witness was using to try and disaggregate the picture and give therefore a frequency for a complete profile as opposed to using the NRC method of aggregating those frequencies, was her opinion that you can rely on the fact that there is a differing intensity in the bands.
THE COURT: All right.
MR. NEUFELD: So I am just--
THE COURT: That is pretty clear, isn't it? That is what she said.
MR. NEUFELD: She said it, but what I'm saying is that the evidence here belies that position as a criteria for making that distinction in a scientific fashion. That is the point.
THE COURT: All right. Anything else from this witness?
MR. NEUFELD: Yes.
MR. NEUFELD: Now, you said that you are--you have read the NRC report many, many times?
DR. COTTON: I have, but--
MR. NEUFELD: Okay.
DR. COTTON: I did not read it last night.
MR. NEUFELD: All right. Well, there is a sentence in the NRC report which says that: "if a suspect's"--and I quote--"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 automatic genotypes that are contained within the mixed pattern," unquote. All right?
DR. COTTON: Yes.
MR. NEUFELD: No. 1, have you ever seen any scientific publication which contradicted that approach to aggregating genotypes for mixed stains?
DR. COTTON: I don't recall seeing a specific scientific publication that has addressed that issue, other than the NRC report.
MR. NEUFELD: So I take it then your answer is there is no scientific literature that you are aware of that would contradict--
DR. COTTON: That I am aware of.
MR. NEUFELD: Okay. One moment, your Honor.
(Brief pause.)
(Discussion held off the record between Defense counsel.)
MR. NEUFELD: And one last thing, Dr. Cotton. Just so I'm clear on this, by your own remarks in response to Mr. Clarke's questions, what you are saying is that as to the PCR profiles, though, you would agree that the appropriate approach is to aggregate those genotype frequencies?
DR. COTTON: If one is going to put a number associated with that data, then that would be the appropriate approach.
MR. NEUFELD: Okay. By the way--no, nothing else at this point.
THE COURT: Mr. Clarke, anything further for Dr. Cotton?
MR. CLARKE: Yes. May I?
THE COURT: Briefly.
REDIRECT EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Cotton, with regard to these PCR results, do you feel it is appropriate to assign numbers to mixtures?
MR. NEUFELD: Objection as to what she feels.
THE COURT: Overruled. Goes to her professional opinion is what I assume the question is.
DR. COTTON: Yes. It is perfectly appropriate.
MR. CLARKE: In terms of your actual reporting, why didn't you do that?
DR. COTTON: We felt that simply stating that these individuals were not excluded was also an appropriate way to report that data. When you are reporting data, there can be very legitimate differences from one laboratory to the next and there are some things where there is no exactly right or exactly wrong way to do it. That was the method we chose. There is also nothing wrong with giving a composite frequency for all contributors to that or all possible contributors to that set of types.
MR. CLARKE: Just with respect--and I would like to direct your attention simply to the DQ-alpha results on item no. 78. Do you recall those?
DR. COTTON: Umm, if you--you can ask your question, but I might need to look at them.
MR. CLARKE: All right. Do you have before you in one of your notebooks, the actual results, PCR-based DQ-alpha results?
DR. COTTON: Are you thinking about looking at the strips or just the types?
MR. CLARKE: Just the types that were detected.
DR. COTTON: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
DR. COTTON: Okay. I've got the right page.
MR. CLARKE: All right. Your Honor, with the Court's permission I'm simply going to ask, and I think the DQ-alpha results are illustrative, ask the witness to write down were the summing process occurs, all the different types that would be involved in it, because I think that is probative.
THE COURT: All right. Briefly and quickly.
(Brief pause.)
MR. CLARKE: Dr. Cotton, with regard to the DQ-alpha results, can you describe for the Court each of the various types that could have contributed to this sample, as the Court has expressed an interest in this type of summing process?
DR. COTTON: Well, we can give an example. If I miss a type somewhere in there, we will have to let me think about it, but I will get--I can give you the idea.
MR. CLARKE: Okay.
DR. COTTON: Do you want me to just say it or did you want to write it down?
MR. CLARKE: Actually I was going to have you draw it on the diagram.
THE COURT: I don't think you need to do that.
MR. CLARKE: Okay.
THE COURT: I will listen carefully.
MR. CLARKE: All right. With regard to the various types, would it then be the case--and first of all, what are the results on item 78, just DQ-alpha?
DR. COTTON: There is a 1.1, a 1.3, a 4 and there could be in there a 1.2 and you can't prove that it is there or prove that it is not there, so for purposes of this it would be prudent to include that as a possible fourth type, so let's include the 1.2.
MR. CLARKE: So that is a feature of the DQ-alpha testing process itself?
DR. COTTON: That's right.
MR. CLARKE: You have to assume under certain circumstances that a type might be there?
DR. COTTON: That's exactly right.
MR. CLARKE: Now, with regard to this summing process, are there then a number of different possibilities in terms of the types of people, of individual people who could have contributed to that sample?
DR. COTTON: Yes.
MR. CLARKE: Do you know how many?
DR. COTTON: Umm, no, I can't tell you how many right off the top of my head. And the other thing is that when you think about how many--wait. Why don't you ask me again, because maybe I'm not getting what you are asking.
MR. CLARKE: Okay. With regard to the field of possible contributors, and I'm only referring to different genotypes--
DR. COTTON: Okay.
MR. CLARKE: --who could have contributed to that sample? First of all, are there more than two possible types that contributed to that sample?
DR. COTTON: Oh, there is many possibilities.
MR. CLARKE: Okay. When you say "many," do you have an approximation of how many without sitting down and actually--
DR. COTTON: No.
MR. CLARKE: Okay. When you say "many," are we talking more than two?
DR. COTTON: Yeah, probably more than ten.
MR. CLARKE: And I believe you said there is, what, only 21 different genotypes to start?
DR. COTTON: That's right.
MR. CLARKE: Okay. Are there then a series of genotypes that may very well have absolutely nothing to do with the contribution of that sample?
DR. COTTON: Yes, certainly.
MR. CLARKE: By summing all of those genotypes, is that, in your opinion, misleading at all?
MR. NEUFELD: Objection as to vague to what is misleading.
THE COURT: Overruled.
DR. COTTON: You mean by summing all the possible genotypes that could have contributed to this grouping of four, is that misleading at all?
MR. CLARKE: Well, let me ask it a different way. If one were to sum all of these genotypes to create a frequency, could you then end up with a frequency that is far more common than the truth as far as that mixture is concerned.
MR. NEUFELD: Objection as to the word "truth."
THE COURT: Rephrase the question.
MR. CLARKE: All right. By summing all of those frequencies could you then obtain a frequency that is far more common than the frequencies of the actual contributors to that stain?
DR. COTTON: Of course.
MR. CLARKE: Is that in your view--well, do you believe the summing process then has a weakness as far as being accurate?
DR. COTTON: The summing process gives you an extremely conservative idea of what percentage of the population could have contributed to these set of types.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: So in this summing process are you including types that may have absolutely to do with item no. 78?
DR. COTTON: Yes, you are. There is something else that nobody has said here, and you--that is, when you do this summing process, you have to make an assumption, do I have two contributors? And then based on two, you would sum everything up. If you said, well, maybe I have three contributors and you summed from that perspective, then your frequency would be still yet more conservative, or if you postulated four contributors, so in doing that summation and doing that calculation, you have to make some assumption I'm going to do the calculation based on two possible contributors and then do it from there. If you did it based on three, it would give you a different result, and then in--also in doing it, you would need to say am I going to assume these people are Caucasian or Hispanic or African American and various combinations would also change the result.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: In your view, scientifically, is it scientifically appropriate to simply conclude from a mixture that you are unable to exclude an individual or individuals?
DR. COTTON: Yes, I think that is scientifically appropriate.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Anything else, Mr. Clarke?
MR. CLARKE: And not misleading in any manner to do so?
DR. COTTON: I don't think it is misleading. Clearly if you say these two people can't be excluded, you might also be saying other groupings of people can't be excluded also. If you get my--that is, if I was asked can these two people be excluded, the answer is no, they cannot. Can other combinations of people also not be excluded? The answer would be that's correct, they can't be--other combinations of people can't be excluded either.
MR. CLARKE: In other words, you feel to describe it in that manner, not just that the people can't--or certain people can't be excluded, but others can't be excluded as well, that that is scientifically appropriate?
DR. COTTON: Certainly.
(Discussion held off the record between the Deputy District Attorneys.)
MR. NEUFELD: Very briefly, your Honor.
THE COURT: Briefly.
RECROSS-EXAMINATION BY MR. NEUFELD
MR. NEUFELD: First of all, Dr. Cotton, if you have 21 genotypes and you know which alleles are not present, you could take all the possible heterozygous and homozygous type frequencies for those alleles that are not present and add up the sum of those frequencies, could you?
DR. COTTON: Yes, the ones that could be present plus the ones that couldn't be present equal the total.
MR. NEUFELD: Exactly. So if you start out with a hundred percent and you subtract the genotype frequencies which could not be present--which could not have contributed to that mixture and you subtract that from a hundred percent, you are left with some number, right?
DR. COTTON: Yes.
MR. NEUFELD: That number is the same whether you have two contributors, three contributors or ten contributors; isn't that right?
DR. COTTON: I'm not so sure that that is right.
MR. NEUFELD: Are you sure that it is wrong?
DR. COTTON: No. Some.
THE COURT: That is real helpful.
DR. COTTON: These calculations--
MR. NEUFELD: Well--
DR. COTTON: Sometimes I have to take a piece of paper and work on them and then answer that question. I'm not sure that it is wrong, but I'm not sure that it is right.
MR. NEUFELD: Okay. And just getting back to one other point, other than the NRC report which says that you indeed have to aggregate this data, you are aware of no authority to the contrary?
THE COURT: You have already asked that question.
MR. NEUFELD: Okay. The only point I would make, your Honor--
THE COURT: We are not in argument yet.
MR. NEUFELD: All right.
THE COURT: Anything else?
MR. NEUFELD: No.
THE COURT: All right. Dr. Cotton, you can step down.
DR. COTTON: (Witness complies.)
THE COURT: All right. Mr. Clarke, any comment briefly?
MR. CLARKE: Yes. Just briefly, your Honor. I think under these circumstances, and as the witness has already noted, that under the specific circumstances of the testing involved, and we are looking at item no. 78, in particular, that under those circumstances, particularly when one takes into account the RFLP typing pattern--
THE COURT: Well, Mr. Clarke, let me ask you this: Assuming that because of the manner in which Dr. Cotton just testified, that it is not inappropriate to testify both that these persons are not excluded and on cross-examination be cross-examined as to the population frequencies in an aggregate, don't we come to the same information; you get to do it your way on direct and they get to cross-examine?
MR. CLARKE: I think that goes back to the actual objection itself. The objection was to the board and I think we need to put that back into its proper perspective. That was the objection. My intent is to ask the witness basically what the Court just heard, can you exclude these people? No, I can't. Are there also other types, you know, other groups of people that you cannot exclude? That is certainly true, they have different genotypes, and I think that is an appropriate way of characterizing it and I think if the Defense wants to elicit from the witness frequency data summing it up and obtaining what other number, they have a right to do that because I think that is general redirect examination and cross-examination.
THE COURT: All right.
MR. NEUFELD: Your Honor, two things: Umm, first of all, I would note that I did have a chance last night to look at the cases that were cited by Mr. Harmon, and neither of them stands for the proposition that--you know that already.
THE COURT: I don't--I did not find them to be germane.
MR. NEUFELD: Okay. I agree. Your Honor, the issue here is not what the Defense can do on cross-examination. The issue is, no. 1, what does the law of California compel? And no. 2, what does the scientific literature which is unrefuted state is obligatory on the part of somebody trying to present data? And on both those points there is unanimity that if they wish to present data--
THE COURT: Well, Barney is dicta, counsel.
MR. NEUFELD: Well, I don't think it is dicta in Barney that DNA evidence without a number is meaningless. I think what they are simply saying is that statistics have to be reported. That is also the--frankly, when you read the NRC report, that is one of the most important recurring themes in the entire, you know, 150 pages. And no one has ever--no one is questioning that here. Umm, your own ruling in fact explicitly so held back in April.
THE COURT: In a much different context.
MR. NEUFELD: Well, the NRC report and Barney makes no distinction between mixed stains and stains that allegedly come from a single source. More importantly, your Honor, what we are concerned with is how is the jury going to accept all this? And if on the one hand you have them describing numbers of one in eight billion or one in 25 billion, for a particular profile, with--say it is consistent with one person and then in the very next box they describe a mixture and say that we can't exclude Mr. Goldman or we can't exclude Nicole Brown Simpson, umm, the jury will draw the logical inference that the same kind of statistics apply there as well. It is not incumbent on me as a Defense attorney to debunk that misstatement of the objective data. They have an independent duty not to mislead or confuse the jury long before we ever get to cross-examination. That is what Barney recognizes. That is what the NRC report recognizes. What Robin Cotton has told us is that, yes, those numbers can be calculated and they can be calculated without a great deal of difficult. With regard to the stain on the steering wheel, 29, I sat down and did it in about fifteen minutes. Certainly they can do that for both item 78 and item 29 and those numbers can be presented to the jury. And if they choose not to present the numbers, which is required by the report and part of the decision in Barney, they should simply be precluded from putting on that evidence as to those mixtures. The reason they don't wish to put on those numbers is they want to mislead the jury. If they didn't want to mislead the jury, they would do what is considered scientifically acceptable. Robin Cotton did not cite a single authority to say it is scientifically acceptable to put on DNA evidence of a match in a mixed stain without reporting a frequency. That is the point here. And that is the simple thing we are asking the Court to decide and to compel the People to do, and if there is no authority to the contrary, I don't see why either in logic or law they should be allowed to do something which does have the effect of confusing and misleading this jury. That is all we are asking for. We are not saying they can't present any evidence of mixtures. Let them present them but present them in a fair and impartial way. And what they are doing is misleading the jury. It is not fair and it is not impartial.
MR. CLARKE: Two comments. I can guarantee to the Court that there will be differences between the sides about what those numbers are. I don't think the matter is nearly as simple as Mr. Neufeld would have the Court believe. That is the first observation. The second observation is, and it is interesting to hear the discussions about People versus Barney, because Barney appears to be dying under the weight of authority that has happened since then. As the Court provided to counsel today--
THE COURT: Yes. The met news reports that Barney is mentioned disparagingly.
MR. CLARKE: And as was the case with conventional serology back in the 1980's when Mr. Harmon and I became involved in this area, it appears that by the weight of authority again courts are accepting the original testing the way it was done. So I think to use Barney in the context of a mixture or to use the NRC report in 1995 based on evidence provided in 1990 and 1991 and early `92 to describe where we are today, and to turn that into a compulsion that a witness provide a frequency that the Court has already heard, she doesn't feel is frankly a perfectly fair way of approaching it, as opposed to describing the facts that certain people are excluded, certain people are not excluded. And to allow the Defense to elicit testimony in a manner that they feel is appropriate under these circumstances is, frankly, the criminal justice system by itself.
THE COURT: All right. Thank you, counsel.
MR. NEUFELD: Just one. Just in regard to the cases that you handed out today, I would just like to comment on that and limit it to that.
THE COURT: To the case that was brought out today? All right.
MR. NEUFELD: Just, your Honor, those cases where they distinguish or talk about Barney are only talking about Barney's comments on the product rule versus the ceiling approach. There is absolutely no comments in any of those cases disparaging the need to have some kind of statistical significance to the meaning of DNA, be it in a mixed stain or a single stain, and that is an important point here. That is what we are talking about and I haven't seen any legal authority to the contrary on that.
THE COURT: All right. The Court is going to require the Prosecution to present some type of statistical analysis with regards to the mixtures. All right. Let's have the jury.
MR. CLARKE: Your Honor, may we have a short recess for the witness?
THE COURT: All right. We've been going for a while. Let's take a recess.
(Recess.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Counsel, are we ready to proceed?
MR. NEUFELD: One other preliminary matter which I couldn't articulate because we took that rest break, and that is, your Honor, based on the testimony yesterday by Dr. Cotton--I'm sorry, could the witness just step outside for one minute, your Honor?
THE COURT: No. What?
MR. NEUFELD: All right. Based on the testimony of Dr. Cotton yesterday, your Honor, I believe as a matter of foundation, there is a foundation objection to her--any testimony that she will give in the immediate future as to either a match or a statistical probability for item 78, 56, 52, 47 and 12 for the following reasons: The one thing they still have to--whether or not the Frye issues were deemed waived by the Court, the foundation issues remain, the fundamental foundation issues. And they have to demonstrate when the witness takes the stand that they use the generally accepted methods in this particular case in this particular instance, and--
THE COURT: Well, we haven't gotten to that yet.
MR. NEUFELD: She did. She testified to the methods she used yesterday, your Honor, and what she testified to was that they have three negative controls that they use in their case work. The first negative control being testing--
THE COURT: I was here. I heard it.
MR. NEUFELD: Okay. What you should know is that we now know from her direct testimony that one of these three negative controls wasn't used at all mainly on the substrates, that the reagent control, that is the very initial control that is used, failed with respect to the various item numbers that I have just given, and that the amplification blank, which is the only remaining control, occurs further on down the line, such that if the initial control fails, that trumps any subsequent control, so consequently you have a failure of the controls or an absence of the control. And you have the laboratory in this particular case not using the generally accepted methods to arrive at a result. And so on purely foundational grounds we would object to the introduction of any evidence as to those particular items.
THE COURT: Mr. Clarke.
MR. CLARKE: Yes. I think the testimony has already demonstrated the witness described the procedures used, they were correct procedures in her opinion, and in fact as I think the testimony will--already has demonstrated, that complies with the Court's order dated several weeks ago about what was necessary in terms of the foundation and the use of correct procedures. The witness has described her opinion and the Court has heard no contrary evidence up to this point.
THE COURT: All right. The objection is overruled subject to a motion to strike at a later time. All right. Let's have the jury.
(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. All right. Dr. Cotton, would you resume the witness stand.
Robin Cotton, The witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:
THE COURT: Let the record reflect we have now been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: My apologies to you for the late start this morning. I had a few matters that I had to take up out of your presence, and as you can tell from the nature of the testimony, some of these things involve some rather complicated scientific matters that I had to decide before further evidence was presented to you, so I apologize to you for the delay in getting started. We also had a hard time rounding up all the necessary parties before getting started this morning. Also, I understand we had some modifications to cinema 1 and cinema 2. All right. I take it they are acceptable? All right. You might want to write a thank you note to the king.
JUROR NO. 19: Who?
THE COURT: Also, counsel, I have modified the jury box slightly. I have asked everybody in row no. 1 top slide down one seat so that juror no. 1 is protected by the monitors from the errant display boards. All right. That is for juror no. 1's protection. All right. Mr. Clarke, you may resume.
MR. CLARKE: Thank you, your Honor.
MR. CLARKE: Good morning again, ladies and gentlemen.
THE JURY: Good morning.
DIRECT EXAMINATION (RESUMED) BY MR. CLARKE
MR. CLARKE: Dr. Cotton, just briefly, you had described the fact that Dr. Blake had actually performed this cutting process on I believe it was six of the evidence items yesterday?
DR. COTTON: Yes.
MR. CLARKE: With regard to those cuttings, were you present when they took place?
DR. COTTON: Yes, I was.
MR. CLARKE: And observed what took place?
DR. COTTON: Yes.
MR. CLARKE: In your opinion did Dr. Blake do anything that might contaminate those samples by his cutting process?
DR. COTTON: No.
MR. CLARKE: Now, have you, since we broke yesterday, had an opportunity to look at one of the those boards that I showed you yesterday that dealt with the chain of custody of certain items received in your laboratory?
DR. COTTON: Yes, I have.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Referring you to that board that is marked People's exhibit 209, did you have a chance to look at in particular the four items that have your laboratory's name labeled at the far right, which are items 7, 12, 49 and 56?
DR. COTTON: Yes, I did.
MR. CLARKE: And does that board accurately reflect your laboratory's receipt of those four items on the day after the date on the board which in the case of each of four is April 3, 1995?
DR. COTTON: Yes. Our records reflect that we received them the day after the date on the board.
MR. CLARKE: All right. Very good. Now, Dr. Cotton, if I could--and I believe we were about to get started on that when we recessed yesterday--with respect to the autorad that has already been marked People's exhibit 246 and which we have made copies or had prepared copies for each of the jurors, which I believe are marked People's exhibit 256, that autorad in fact contains the known DNA from the three parties in this case; is that right?
DR. COTTON: That's right.
MR. CLARKE: That would include Mr. Simpson?
DR. COTTON: Yes.
MR. CLARKE: Nicole Brown?
DR. COTTON: Yes.
MR. CLARKE: And Ronald Goldman?
DR. COTTON: Yes.
MR. CLARKE: All right. Does that autorad demonstrate any differences in their DNA patterns?
DR. COTTON: Yes, it does.
MR. CLARKE: Does that autorad also have a particular item of evidence that was tested at the same time?
DR. COTTON: Yes.
MR. CLARKE: What item is that?
DR. COTTON: I believe it is item 56.
MR. CLARKE: Is that a shoeprint--I'm sorry, is that actually a blood-stained shoeprint?
DR. COTTON: That is what you have conveyed to me.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, your Honor, it would be my request to hand out, re-hand out these copies for each of the jurors so that they can utilize that during the witness' testimony about this particular x-ray.
THE COURT: Yes. Proceed.
(Brief pause.)
MR. CLARKE: I am actually looking for the earlier marked one, 246. I'm wondering if perhaps it is in the pile with 256.
THE COURT: I don't think so.
(Brief pause.)
THE COURT: I just sent Mrs. Robertson on another errand so--
MR. CLARKE: All right.
THE COURT: 256?
MR. CLARKE: 246.
THE COURT: 246.
(Brief pause.)
THE COURT: All right. Mrs. Robertson has the original.
MR. CLARKE: Thank you. Dr. Cotton, what I'm going to ask you to do--and first of all, have you had an opportunity to see what these x-rays look like when they are projected on to the upper screen?
DR. COTTON: Yes, I have.
MR. CLARKE: With respect to 246 then would it assist you in describing the results on this particular x-ray to have it on the screen so that you can point out certain things?
DR. COTTON: Sure.
MR. CLARKE: All right. With the Court's permission then I would like to display People's 246.
THE COURT: Proceed.
MR. CLARKE: And Dr. Cotton, can you step down here and would that aid in your ability to point out particular items on this particular x-ray as well as by using the point maker?
DR. COTTON: Yes. And maybe if we have one other copy, or the original, we could play it on the small light box also.
MR. CLARKE: All right. Let me ask you a couple questions. You have the original x-rays in this case?
DR. COTTON: I have the original autorads in this case.
MR. CLARKE: And when we say autorad and x-ray--
DR. COTTON: X-ray.
MR. CLARKE: --is that the same thing?
DR. COTTON: Yes.
MR. CLARKE: Okay. You have the originals and then have there been copies provided to both sides in this case?
DR. COTTON: Yes.
MR. CLARKE: All right. With respect to these originals versus the copies, what differences are there, if any?
DR. COTTON: The copies may have--for the most part there is no differences. When a band is very light, the copy may not show that band quite as clearly as the original, and the only way to determine that is to hold them side-by-side and see if you can see it as clearly on a copy as you can on the original.
MR. CLARKE: All right. Do we have in fact a small light box also in Court on counsel table?
DR. COTTON: Yes.
MR. CLARKE: And would it assist you to use that light box to look at the original just in case there are any differences between the original and the copy?
DR. COTTON: Well, actually what I'm concerned with is how it looks up on the screen as opposed to how it would look on the light box, so that is why that helps me to have the light box there.
MR. CLARKE: All right. Then with the Court's permission we will adopt that procedure and be able to display to the jury on the projection screen itself.
THE COURT: All right. Proceed.
MR. CLARKE: All right. Dr. Cotton, if you could, could you obtain the original of what has been marked People's 246, but also the copies, People's exhibit 256.
DR. COTTON: Here is the original for this film.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, with the Court's permission, prior to discussing, and there aren't very many samples on these autorads, I would like to at least show briefly to the jury the particular item of evidence that has been described by previous witnesses.
THE COURT: Referring specifically to 56?
MR. CLARKE: Exactly, and I believe that particular photo board is exhibit 165.
THE COURT: All right.
(Brief pause.)
MR. NEUFELD: Your Honor, I would only make the objection, subject to a clarification from the Court, that again on the chain of custody, that she is not testifying that it is that item.
THE COURT: Correct.
MR. NEUFELD: I would just simply ask for that instruction from the Court.
THE COURT: I think that is apparent already from the testimony.
MR. NEUFELD: I'm sorry?
THE COURT: It is apparent already from the testimony.
(Brief pause.)
MR. CLARKE: And referring specifically on this exhibit, your Honor, which I believe is People's exhibit 165, in particular to the photograph on the top row, three photos from the left labeled "item no. 56."
MR. CLARKE: Now, Dr. Cotton, with regard to this particular x-ray, first of all, is this an x-ray that was developed following your use of this RFLP typing process?
DR. COTTON: Yes, it is.
MR. CLARKE: Okay. Could you describe for us what this x-ray shows in broad terms? In other words, how is it oriented, what are the samples on it and so forth?
DR. COTTON: Okay. Let me just start with telling you that this is the right way to hold it. The dark lettering, or the dark background to the lettering, at the top I want to be up. The lettering across the top is simply the number of the gel that these samples were loaded on. "f" is on there because it is a forensic case and not a paternity case. If it was a paternity case, that would be a "p." 08/09/94 is the date the gel was run on and "15a" is simply the number of the gel tank that the gel was run on. And this lettering is actually essentially burned into the film, that is, it is exposed at the time the film is made, so it can't be erased or taken off in any way, and this is our permanent record that this film goes with a particular case. Now, on your films, although it is not shown on the screen, you can see that there is handwriting at the bottom and that handwriting at the bottom is written on here by the analyst who is doing the test, and he or she is taking that record from the case folder where it is listed, the order that the samples were loaded into the gel, and so these are our sample numbers across the bottom, and then the case number and the gel number is written again and then you see the letters "SLC." That refers to the fact that this film is made with a group of probes and in the lab we call it a cocktail, so it is that--that stands for single locus cocktail. The reason--if you remember in the example that we have talked about so far, we keep talking about for one genetic location you will see two bands. Well, obviously here, and now you can sort of move to the screen, you see that there are multiple bands on--in many of the lanes here, and that is because four different probes were added to this film. This is done in our lab. It is the first addition of probes. And then--and we haven't mentioned this before. Once you add probes to a membrane and you allow them to bind and you get your x-ray film off, you can strip those probes away without moving--removing very much of the DNA on the membrane and come back and then do another probe on that membrane, get another film, finish that, strip that probe off and come back and do it again. And depending on the amount of DNA that you have on that film, you may be able to do that many, many times.
MR. CLARKE: Let me stop you for a moment, Dr. Cotton. When you have described that this particular x-ray includes four different probes done at once--
DR. COTTON: Yes.
MR. CLARKE: --why do you do that? Why don't you just do one at a time?
DR. COTTON: If we are comparing evidence samples and known samples and the evidence and the knowns are not consistent, that is, the known people that we have for a case are excluded from being donors of the evidence, that becomes apparent immediately on having a group of four probes like this. So it allows us, if in fact the result is an exclusion, it allows us to see that very clearly right away. We report that right away and then we don't go on any further until we are requested. And we've done our film in the lab this way from the beginning. Most other labs just do them one at a time. This is an instance where there isn't a right or a wrong. This isn't better or worse than anybody else's; it is just customary at Cellmark. Okay. So the next important thing to notice, and I will--we will go to the pen here, okay, this lane on the far left, the second lane in, this middle lane and the two lanes on the right are what are referred to as markers. They are one of the--one of the types of controls that is on an RFLP test. Each--let's talk about this marker first, (Indicating), because it is the easiest to visualize. Each one of these bands is from a DNA fragment whose size is exactly known. The marker is purchased from a biotechnology company, and although I'm not going to remember the exact sizes, I could easily go look them up. And in--as a very close approximation, this band is 2000 base pairs. This one, (Indicating), is 3000--whoops. Let's undo that. So we have 2, 3, 4,000, 5000, 6000, 7000 up here, (Indicating), 8000, 9, 10, 11 and 12. The purpose of that marker is to later on use that with the computer imaging system to help make an estimation of the fragment sizes in the other samples. And as long as we are talking about that, let's just use an example. If this is 2 and this is 3 and this is 4, this band, (Indicating), in Mr. Goldman's pattern is clearly between 3 and 4, and remember that what we are concerned about is the samples were loaded across the top here in about the same positions as the bottom of each of the labels, approximately. And the DNA from each sample moved through the gel, down in this direction, (Indicating), and the smaller pieces would move faster and further through the gel than the longer ones. And that is illustrated again by the marker. Here is this lowest one is about 1600 and then 2000 and so on. So by eye you can make an estimation that this lowest band in Mr. Goldman's pattern is somewhere between 3000 base pairs and 4000 base pairs. Now, the computer system can actually do measurements. The measurements reflect the distance migrated through the gel. And the computer system will then do a calculation that will give you a more precise estimate that you can do just by eye. You don't have to have a computer system to do it. You could measure them yourself and plot it out on a piece of graph paper and your answer would still be quite good. The second marker up here, (Indicating)--well, let me go back to the labels. This marker is labeled 1 KB. It stands for one kilobase. That is each of the bands in that marker is 1000 base pairs larger than the band below it. The second marker is a viral DNA that is commonly used as a marker. It is labeled lambda and really we are only using this top band as a--to give us a band that is larger than 12,000 base pairs. And this top band in lambda is approximately 23,000 base pairs. So this--the combination of this 23,000 base pair and the 1 KB marker is what we are using to estimate sizes. There are two additional samples on this film that does not relate specifically to this case. One of them is over here it is labeled TDS on your film. It is DNA from a blood sample from one of the lab staff at Cellmark. This person has been gracious enough to provide us a blood sample every four or six months or so and we have been using his blood sample as a control sample for a long time. We know exactly what his pattern should look like and we have many measurements of the sizes of the DNA bands in that pattern, and that is an example of one of the controls that I mentioned the other day where we know what this pattern should look like. Should it look different than usual, we would--that is, should the band sizes be different than usual, that would be of concern to us.
MR. CLARKE: Do you ever have to track that person down when you are running low?
DR. COTTON: Well, he is pretty cooperative. And the same goes--the same scenario is true for the two markers, the lambda and the 1 KB. You can see that this 1 KB marker has a very typical appearance with the distance between adjacent bands getting shorter and shorter and shorter as you go up the gel. If that marker didn't have that very typical appearance, it would tell you immediately that something was wrong with the gel that you had used, and so that is just another indication or another example of what I meant when I said you get accustomed to looking at these, you know what they should look like. It has been described either by many measurements or by use in many labs over time, for example, for the marker, that this is what it should be like. There is another control on this film, it is labeled k562. It is DNA from a cell line that you can purchase, and it is a commonly used control in forensic case work for labs all over the country. This control became available after we had already been using the control from the person in our laboratory. We include it on all of our--or some of our gels. It may not be on each one, but when there is room for it, we will run that as well. The three remaining lanes contain the known samples from Mr. Simpson in this lane, (Indicating), from Nicole Brown in this lane, (Indicating), and from Ronald Goldman in this lane, (Indicating).
MR. CLARKE: Let me stop you for a moment, I'm sorry. Dr. Cotton, with regard to that k562 lane, could you point that out again.
DR. COTTON: Right here, (Indicating).
MR. CLARKE: All right. And could you explain just briefly again, what is the purpose of that sample?
DR. COTTON: That sample is simply another control DNA whose pattern, now that we have run it a number of times, is recognizable. We do not in our lab have standard sizes for this lane yet. We still are accumulating numbers for that. So we are not using it, umm, in exactly the same way we are using the TDS, because we do have standard sizes for that, so we are accumulating those standard sizes, but the pattern does look as it is supposed to.
MR. CLARKE: Now, as to the number of these samples, where it is the lambda, the 1 KB, the TDS, referring to the first three lanes on the left, and then the K5--and the additional 1 KB's in the middle and off to the right, as well as the k562, if something goes wrong or doesn't appear correct when you are reading this result, does that kind of turn on a light in your head or what?
DR. COTTON: It alerts you to the fact that something might be wrong. Now, it could be that something is just wrong with that standard sample and that you demonstrate that, but it also tells you something could be wrong with the standard samples and the gel run in that particular case, which then would affect all the samples. So if anything doesn't look right, you would go in and figure out what was the problem, did it affect all the samples in that gel run or is it specific to that particular standard? If possible, even if it was just specific to the standard, you could go back and rerun them. Sometimes if we have a problem with the standard and we can't rerun the evidence--and actually I don't want to be confusing. I'm using "standard" essentially two ways. Usually if it is a known sample, I will try to call it a known sample from a known person. If it is one of our standard markers or the TDS, I will try to remember to refer to it as a standard sample in the lab. If we had problems with a standard sample, such as TDS, and we couldn't rerun the evidence, we might rerun the standard and the known samples from that case to make sure that everything was reproducible. So a problem with a standard doesn't mean you have to dismiss all of the results, but it does mean that you better look at them closely and make sure that everything is okay.
MR. CLARKE: Okay. Referring you, if I can, and let's start with this first lane that is labeled lambda, why is it the bands that are shown there seem to be smaller than the band in the next lane over, the 1 KB? Is "smaller" the right word or not?
DR. COTTON: Are you--okay. You are asking me why are these bands narrower from top to bottom than these bands in the 1 KB lane?
MR. CLARKE: Yes.
DR. COTTON: There are two things that can affect that. One is that there may be more DNA in the 1 KB lane, more total DNA in that lane, than in the lane that has the lambda DNA. We are loading standard amounts. I think that the amount of lambda that is loaded may be less, but I would have to go into the protocol to confirm that. The other thing is that when you look at this kind of difference, whenever you are looking at a larger band versus a smaller band, or a dark band versus a light band, there are many things that can affect that. It--it is a technical enough procedure that a single explanation may not be the only contributing thing to making something darker or lighter. In this case the answer to your question is there are two possible contributing things: One is that there is less DNA in the lambda lane than the 1 KB lane, and the other would be that the amount of p32 in the probe for the 1 KB was more than the amount of p32 in the probe for the lambda and that is something that can also affect how dark or light a particular band is.
MR. CLARKE: As far as this difference in the darkness and lightness and the narrowness of the bands, does that make any difference in your ability to interpret results?
DR. COTTON: On this film in this example it wouldn't make any difference at all. It certainly can make a difference. Bands can be very light. Bands can be very dark and close together, such that you can't make an absolute distinction of whether there is a single band or two very close together, so it can make a difference, but it is not really making a difference on these markers. Let me give you a better example. Let's come over here, (Indicating). You can see that this band in the k562 lane--can I make that stay there? No. What am I doing wrong? How do I make it stay there?
MR. CLARKE: By pushing the button.
DR. COTTON: Oh, right, the button. There we go. Okay. That band, (Indicating), is more intense than the two bands above it, and the band below it. Without going back and looking, I can't remember, but it could be that for the cocktail there are actually two bands there, one identified by one probe and one identified by another, so that you see basically overlapping bands and that is a--I'm just making this up as an example--that is another reason why a band might be darker than the bands above it or the bands below it.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: How do you answer that question or do you answer that question that you have just asked in the course of your further testing?
DR. COTTON: Yes, because as you go through and do each individual probe by itself, you can then in doing that--let's see if we can undo this arrow. Let's--this is--okay. Let's say we went and did each individual probe by itself and we identified that this band and this band, (Indicating), came from the first probe. And then let's say we went back and get another band--I mean, sorry--another probe and we identified that this band and this one over here, (Indicating), came from probe no. 2. And you could go back and do another hybridization and we might see that on the third probe that identified this band and this one, (Indicating), and go back then and do the fourth probe that is part of the group and perhaps the fourth probe would again identify this band and this remaining band, (Indicating). So in the process of doing them each individually, you can define the pattern that you see, which bands came from which genetic location. The cocktail is great for telling people apart. You can see here that clearly Mr. Simpson, Miss Brown, Mr. Goldman all have different overall patterns. To establish more information than that, it is desirable to go back and necessary to go back and do each probe individually. Now, we didn't do that on this film, because the evidence lane doesn't have a banding pattern, so I can't show you that, but on the other film we did do that.
MR. CLARKE: All right. We will return actually to both of those things, the actual evidence on this x-ray, as well as the fact that you did these probings individually on other x-rays as well or other x-rays in addition to that. One more question generally about this x-ray itself. There appears to be some darkening between the bands, for instance, on the third lane labeled TDS; is that correct?
DR. COTTON: Over here you are talking about, (Indicating)?
MR. CLARKE: Yes.
DR. COTTON: You are talking about this background in here, (Indicating)?
MR. CLARKE: As well as in, for instance, the sample that is labeled "n. Brown" at the top as well?
DR. COTTON: Yes, here. All of this, (Indicating).
MR. CLARKE: And to some lesser extent in what looks like two other of the lanes or perhaps three as well; is that right?
DR. COTTON: Yes.
MR. CLARKE: What is that?
DR. COTTON: That is the background that you see as DNA becomes degraded. The more degraded the sample is, the darker this general background becomes, and the longer the exposure, that is, the longer the x-ray film has laid over the membrane to expose, the darker this background will become.
MR. CLARKE: Does that affect your ability to interpret results, the fact of this background?
DR. COTTON: I have certainly seen DNA patterns where the degradation was so substantial that it basically obliterated your ability to see any bands. For the most part, even if there is degradation, you can still see where the bands are, because they are superimposed over it and they are still darker than the background. It can affect your ability to read it. It doesn't all the time.
MR. CLARKE: Does it affect the accuracy of the results themselves?
DR. COTTON: As long as it doesn't affect the ability of the computer imaging system to choose where that band is or your ability to assess that the computer imaging has chosen the band position correctly, then it generally won't affect the results, but if it is dark enough, it will.
MR. CLARKE: Can it, for instance, turn one type into looking like a different type?
DR. COTTON: No, it doesn't do that.
MR. CLARKE: So in other words, this part of the of the testing process doesn't affect your ability to accurately type samples?
DR. COTTON: (No audible response.)
MR. CLARKE: Does that question make sense?
DR. COTTON: No.
MR. CLARKE: Okay. I will withdraw it then. Thank you.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, as far as--the next area I would like to ask you about, Dr. Cotton, is you described briefly how it can be seen that the sample from the three known individuals, Mr. Simpson, Nicole Brown and Ronald Goldman, have different overall patterns. Can you describe that and show that for us, please?
DR. COTTON: Okay. The--let me just take a look at the light box.
(Brief pause.)
DR. COTTON: Remember that we are making the assessment of a pattern by looking at the position of each of the bands as they are distributed from the top to the bottom, so let's just say we have--we have these three people here. Mr. Simpson has three bands that are close together that are almost near the top of the 1 KB ladder.
MR. CLARKE: Let me stop you for just a moment, Dr. Cotton. Perhaps you can clear all of those arrows that you have already done off to the right.
DR. COTTON: Okay. There we go.
MR. CLARKE: Thank you.
DR. COTTON: He has three additional bands lower down, and although you can't see it very well on this screen, there is an additional band down here, (Indicating), which I had to check on the light box to make sure that I remembered that there was one down there. This isn't--this isn't necessarily the optimal way of viewing these, and in the laboratory you would just look at it on the light box and make your decisions based on how it looked laid on the light box like I have it over at the table. So if you make a comparison, we will just compare Mr. Simpson's pattern to the TDS pattern, the TDS pattern also has some close groupings of bands, but they are not in the same position as the groupings that Mr. Simpson has. This lower grouping down here, (Indicating), there is no bands at all, so this pattern is clearly different from the TDS pattern.
MR. CLARKE: Let me stop you for a moment, Dr. Cotton. With respect to Mr. Simpson's DNA we see what appear to be a grouping of three bands and then a little lower down another grouping of three bands and then you described further on, almost all the way down this x-ray as we could see it, then a light band. What can you tell us about why that band would be lighter?
DR. COTTON: We know from many, many--let me just--let me put an arrow right here where I think that light band is, and actually the TDS pattern also has a light band, and that one is right here, (Indicating), in a slightly different position. We know from understanding the gel and understanding how the radioactivity or the probe DNA that is radioactive binds, that in this system and some other systems, but I will just refer to the Cellmark system, when a band is very small it tends to be lighter. You can see that in the TDS control and you can see that in Mr. Simpson's pattern. One of the reasons for that is that the total number of repeats in that small band, remember, the length of the band is defined by how long that repeating sequence is, and the probe is going to bind to that repeating sequence. The total number of repeats available for a probe to bind in a very small band is substantially fewer than a band that is more sizable. That is just another example of a technical reason why you might see bands that are different--differing in intensity.
MR. CLARKE: Incidentally, does Mr. Goldman also have a similar band in that range?
DR. COTTON: Yes, he does.
MR. CLARKE: Perhaps you could point that out.
DR. COTTON: That would be right there, (Indicating).
MR. CLARKE: Now, with respect to those lighter bands, how do they affect your ability to type results accurately?
DR. COTTON: The largest problem that you might have is that you may have two samples that have the same pattern, a known and an evidence, and if you have less DNA for--let's say you have less DNA in the evidence than you do in the known, you can see that if--if you get--if it gets very much lighter, that is those lower bands, if they got very much lighter, you wouldn't be able to see them. So it does happen occasionally that you might be missing a lower band such that your evidence, say, had eight--sorry. Let's say your known had eight and the eighth one was down in this region of the gel, (Indicating), or maybe even in this region, (Indicating), and the evidence only had seven and didn't have one in that region. And that leaves you with two explanations. Either the DNA has--in the evidence actually may have all the bands but you can't see one, or the DNA in the evidence is not--could not be from the same person as the DNA in the known. And you would have to then make some decision about interpretation of that seven--of those seven bands as compared to those eight bands.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Now, Dr. Cotton, with respect to these three samples, whether it is Mr. Simpson's, Nicole Brown Simpson's or Ron Goldman's, those are known samples? In other words, to your knowledge it was identified where they came from?
DR. COTTON: Yes.
MR. CLARKE: In other words, they came from known individuals?
DR. COTTON: Yes.
MR. CLARKE: Now, I also believe I interrupted you when you were describing the differences in the overall patterns of the three individuals.
DR. COTTON: (No audible response.)
MR. CLARKE: Or had you finished?
DR. COTTON: Well, you could do more. I don't--
THE COURT: Next question.
MR. CLARKE: Yes, definitely, your Honor.
MR. CLARKE: Now, I would like to turn your attention, Dr. Cotton, if I can, to the sample or the lane which looks like it is the fifth one from the left that is labeled "no. 56 print."
DR. COTTON: Okay.
MR. CLARKE: With regard to that sample--and again that stain was put through this RFLP typing possess, correct?
DR. COTTON: Yes, it was.
MR. CLARKE: What kind of results do you see from that particular sample?
DR. COTTON: Zero. I don't see any.
MR. CLARKE: What does that mean?
DR. COTTON: It means that there was DNA in that sample and that DNA was loaded on this gel. It means that the DNA that we loaded on the gel was not human DNA. The probes are specific to human DNA and because we got no banding pattern at all and there was a substantial amount of DNA from that sample, that the DNA from--that we obtained from that sample wasn't human DNA. We have no banding pattern and no conclusion can be made regarding that sample.
MR. CLARKE: All right. Dr. Cotton, I'm going to ask you several questions about that particular sample, but I believe you could answer those from the witness stand, if that would be more comfortable.
DR. COTTON: Okay.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: And your Honor, at this time I would like to place on the projector screen the actual photograph of this particular evidence item.
THE COURT: All right. Is that available?
MR. CLARKE: Yes, I believe so.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: This will be 258 or have we numbered this yet?
MR. CLARKE: This I believe is already marked as People's 45-J.
THE COURT: 45-J.
MR. CLARKE: Now, Dr. Cotton, with respect to item 56 before you actually had this sample tested using the RFLP process--and I'm going to clear the arrows--do you go through a particular step with a sample to try to determine if there is human--I'm sorry--if there is DNA present and if so approximately how much?
DR. COTTON: Yes.
MR. CLARKE: How do you do that?
DR. COTTON: After the DNA extraction and before you do the next step, which is the restriction cutting of the DNA, you take a very small portion of your DNA and run it on a very small gel, it is about oh, three inches by four inches, two inches by three inches, something like that. And what that allows you to do is determine whether the DNA is in pretty good condition or whether it is degraded or somewhere in between, and it allows you to make a rough estimation of how much you have. And it doesn't tell you whether it is a mixture and it doesn't tell you whether it is human; it just tells you whether you have some DNA there.
MR. CLARKE: And did you perform that particular step with regard to this item no. 56?
DR. COTTON: Yes, we did.
MR. CLARKE: What did it tell you?
MR. NEUFELD: I'm sorry, your Honor. I would object and just ask for the instruction.
THE COURT: You haven't established the connection of 56 to this item yet, so I will take that as an objection subject to a motion to strike.
MR. NEUFELD: Right.
THE COURT: Proceed.
MR. CLARKE: Could we approach, your Honor?
THE COURT: Proceed.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: With regard to this particular item that was provided to you, item no. 56, what were the results of this test to determine how much DNA was present?
MR. NEUFELD: Again objection for the same reason.
THE COURT: Same ruling.
MR. NEUFELD: All right.
THE COURT: Proceed.
DR. COTTON: When we ran the DNA obtained from item 56 on the mini gel there was clearly DNA there and it appeared to be in good condition.
MR. CLARKE: What does that tell you about your ability to then type that DNA?
DR. COTTON: Right then it doesn't tell you anything.
MR. CLARKE: Okay. Does the result of that test affect what further steps you take in terms of typing that sample?
DR. COTTON: Well, it certainly can. If you have very little DNA or it is very degraded, at that juncture then you might decide that it is not of sufficient quantity and quality for RFLP and that you should then go on and do PCR.
MR. CLARKE: So in other words, you use this step as sort of a guide as to which typing approach, RFLP or PCR, would be the more likely to produce results that give you information?
DR. COTTON: That's right.
MR. CLARKE: With regard to this particular item, did you make a determination of which approach then to try RFLP or PCR?
DR. COTTON: We made a determination to try RFLP and we knew that we had enough sample left over to do PCR, so we went ahead clearly from the film that we shouldn't have--I mean shouldn't have--it doesn't matter that we did it, but it didn't give us any result.
MR. CLARKE: Did the fact that it produced no RFLP result, was that something you expected or was that a surprise of any sort?
DR. COTTON: Well, that was sort of a surprise. Umm, what I haven't mentioned, there is also a test you can do to determine whether you have human DNA, so you could do both your mini gel and a test to determine whether you have human DNA and we routinely do that for PCR samples. We did not do it for this sample before the RFLP. We did do it later on, so because we hadn't done it, we didn't know that that wasn't human DNA and we did proceed with an RFLP analysis.
MR. CLARKE: Now, you described earlier the role that bacteria can play in terms of degrading human DNA; is that right?
DR. COTTON: Yes.
MR. CLARKE: With regard to this particular instance, to what extent can you offer an opinion about the possible role of bacteria?
DR. COTTON: If there was originally human DNA present in that sample, it is substantially degraded and not able to give any--it is so degraded that no RFLP pattern could be obtained.
MR. CLARKE: And to what extent, if any, does--I'm sorry, does bacteria play a role in that or could play a role in that?
DR. COTTON: Well, it can play a role in that. If a sample is deposited on a surface that has a lot of bacteria, then the bacteria may participate in the degradation of that DNA. Bacteria contain many enzymes, many proteins that will break up DNA in a random manner, and therefore, when bacteria is present DNA degradation occurs.
MR. CLARKE: Now, did you subject this same material provided as item no. 56 to you to PCR typing?
DR. COTTON: Yes, we did.
MR. CLARKE: Did you obtain results?
DR. COTTON: I believe we did.
MR. CLARKE: Can you verify that from the materials that you have?
DR. COTTON: Sure.
(Brief pause.)
DR. COTTON: Yes, we did obtain PCR results from that sample.
MR. CLARKE: Do those results then allow you to make any conclusion about whether or not there is human DNA in this sample?
DR. COTTON: Yes, they do.
MR. CLARKE: Why is that?
DR. COTTON: The PCR test also is pretty much considered to be human specific. That is, it will recognize human DNA and you might be able to type a primate, like a chimpanzee or a gorilla, but you can't type other animals, so the fact that we got a PCR type from that sample is a very good indication that there was human DNA present.
MR. CLARKE: So then is it the case, with respect to your RFLP typing that produced no result, that doesn't mean there was no human DNA in that sample?
DR. COTTON: That's right. What it means is that the DNA was so degraded that it was incompatible with giving a result.
MR. CLARKE: As far as bacteria are concerned, do bacteria result in changing the type of a sample, for instance, if bacteria was present in item no. 56?
DR. COTTON: It won't change the type to appear to be another person's type. There is a level of degradation that you could--that you could have in your DNA sample where you would begin losing bands and you would begin losing them at the top. It is not the same as the description I just gave you of not being able to see a band at the bottom, but the phenomenon, the number of the phenomenon is the same. You might have a known sample that had eight bands and you might have an evidence sample that was degraded and had six bands that were consistent with the known but two bands in the known wouldn't--may not be visible in the evidence. You would come--you would have the same--anytime you are missing bands at the top end or the bottom end of a pattern you have the same decision in terms of conclusions. It is either consistent with that person or it is inconsistent with that person, but basically it would have to be from a close relative.
MR. CLARKE: All right. Now, what I would like to do is shift your attention, Dr. Cotton, to a second series of x-rays that you created after testing other evidence. First of all, you have, do you not, with you, x-rays of other RFLP tests in this case other than 56?
DR. COTTON: Yes.
MR. CLARKE: Incidentally, with regard to item no. 56, and that first auto--x-ray, I'm sorry, that you have been showing on the board, did you then, in the case of that sample and those three knowns, go through this process of doing one probe at a time creating additional x-rays?
DR. COTTON: Not with that film.
MR. CLARKE: Why?
DR. COTTON: Because there was--since there was no evidence--since there was no information obtained from the evidence, we didn't go through the process of doing each probe by itself, because there is just no DNA there from the evidence, so there is no--nothing to be gained by doing that.
MR. CLARKE: So there is no reason to go further with regard to that sample?
DR. COTTON: That's right.
MR. CLARKE: Now, did you also receive--well, let me rephrase. When you conducted this RFLP typing, again did you do it on other samples in addition to 56?
DR. COTTON: Yes, we did.
MR. CLARKE: Did those include samples that you actually obtained RFLP typing results for?
DR. COTTON: Yes.
MR. CLARKE: In particular, did you test on one x-ray what included items no. 52?
DR. COTTON: Yes.
MR. CLARKE: Your Honor, with the Court's permission I would ask that a photograph of 52 be placed on the elmo as well. (Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: Which is I am told exhibit 48-I.
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. CLARKE: And in particular, your Honor, with regard to the board which has been marked--I'm talking about the photo board that is on the easel currently as People's exhibit 165--in particular, the photograph labeled on the left-hand side of that board, three photos down, labeled "item no. 5."
MR. CLARKE: Was that one of the items tested during this RFLP typing possess, Dr. Cotton?
DR. COTTON: Yes.
MR. CLARKE: On this particular test or during this test did you also test any other items in this case?
DR. COTTON: Yes.
MR. CLARKE: What were those items?
DR. COTTON: Item no. 78 and item no. 12.
MR. CLARKE: All right. What I think we will do is take them one at a time. Do you have with you the first x-ray in this testing process for those items you have just described?
DR. COTTON: Yes.
MR. CLARKE: Would that be what you've called the cocktail x-ray or cocktail autorad?
DR. COTTON: Yes, but I'm going to have to find it.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Dr. Cotton, we may have the original.
DR. COTTON: I was hoping you did, because I wasn't seeing it in this group.
MR. CLARKE: Incidentally, is that the original of that particular x-ray?
DR. COTTON: It sure is.
MR. CLARKE: How are you able to tell that is an original instead of a copy?
DR. COTTON: Sometimes the copies are a different color, but these recent copies are not, and they are so close to the originals that what I'm doing is feeling for the labels that are stuck onto the originals and I can feel that this has the labels on it and so I can really quickly say this isn't the copy.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. With respect to this particular cocktail x-ray, I would ask that that be marked as People's next in order, your Honor.
THE COURT: People's 258.
(Discussion held off the record between the Deputy District Attorneys.)
THE COURT: Did we premark this already?
MR. CLARKE: I'm sorry. That has been marked, your Honor. That is 257-A.
THE COURT: 257-A.
MR. CLARKE: I apologize.
MR. CLARKE: Now, Dr. Cotton, with respect to the samples that were tested on this particular x-ray, would it again assist you to use the overhead projector as well as the pointing machine?
DR. COTTON: Sure.
MR. CLARKE: All right.
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: All right. Dr. Cotton, if you can, can you describe for us what is shown on this particular x-ray? What are the samples?
DR. COTTON: Do you want me to list the controls as well?
MR. CLARKE: If you can just describe them briefly and answer whether or not they are the same control or the same types of controls used on the earlier x-ray?
DR. COTTON: The film is laid out in terms of where the samples were loaded on the gel in a similar manner to the one that you saw previously so that we have marker lanes on the left, two marker lanes on the right. They are the same markers as before. All the films have the same markers, the lambda and the 1 KB. The reason that you can actually see the markers is that a probe is also added that identifies the markers, because the markers are not from human DNA, and if you didn't add a probe specifically for them, you wouldn't be able to see them. There is also an additional marker lane in the center, another 1 KB ladder. There is a TDS standard over here, (Indicating). This standard shows some degradation. And again what--as you view it on the light box, as opposed to viewing it on this screen, it is not this dark. The same is true with some of these lanes over here. When you look at it on the light box it is a little bit easier. There is also a k562 lane on this film that is shown right here, (Indicating). There--the three known samples are here, (Indicating): Simpson, Brown and Goldman. The three evidence samples are loaded over here, no. 52, no. 78 and no. 12.
MR. CLARKE: Now, with regard to, and you have identified or described the fact that the three known samples are towards the right of that x-ray; is that right?
DR. COTTON: That's right.
MR. CLARKE: And they have created certain banding patterns; is that correct?
DR. COTTON: That's right.
MR. CLARKE: Now, with regard to those lanes--and let's look at, for instance, what is labeled Nicole or N. Brown, that lane appears to be dark. Can you describe what causes that?
DR. COTTON: This sample has a considerable amount of degradation in it. That was seen as early on as the mini gel when we looked to see how much DNA we got from that sample. You can see on the mini gel that that DNA is degraded. The same is actually true for the sample from Mr. Goldman, although on this particular film the sample from Nicole Brown looks slightly more degraded than the sample from Mr. Goldman. All of the samples of the known on this film and the TDS and the k562 appear to be rather dark, and they are, and the reason is that this was a long exposure because one of the evidence lanes didn't have very much DNA in it.
MR. CLARKE: Now, which lane was that?
DR. COTTON: The lane that doesn't have very much DNA is the lane where we have sample, no. 52, and you can see how much lighter this banding pattern is as opposed to the others, (Indicating). Now, among all the various things that can determine whether something is light or something is dark, the overall most common reason is how much DNA is there. And we also know quantitatively--well, in estimating from the mini gel that there wasn't a lot of DNA in that sample.
MR. CLARKE: Does the fact that some of these lanes are darker prevent you from being able to interpret the results?
DR. COTTON: If we had just this film, you would--you could interpret it, but I would rather see all the films in series and interpret them altogether, than just use this one. The bioimage was used on this film, the sizes were done from this film, but anytime that you have a whole set of data, you would like to look at the entire set before you come to a conclusion, not just look at a single film.
MR. CLARKE: Now, from looking at these--from looking at these particular samples--and let me focus your attention on what appear to be the three evidence items, no. 52, the Bundy walkway, no. 78, Mr. Goldman's boot and no. 12, the Rockingham foyer--what can you tell us about the relative amounts of DNA in those three items from this x-ray?
DR. COTTON: From this film, no. 12, would have the most in comparison to those three. No. 78 would have sort of a middle amount and no. 52 would have the smallest amount of DNA.
MR. CLARKE: So from left to right on those three items, basically the DNA goes up in terms of its amount?
DR. COTTON: Yes.
MR. CLARKE: Now, as far as once you obtain this particular x-ray, was it in fact examined for any results or interpretations that could be made?
DR. COTTON: Yes.
MR. CLARKE: What can you--
DR. COTTON: It was.
MR. CLARKE: What can you tell us about any conclusions or opinions you reached from this particular film?
DR. COTTON: From this particular film you can--let's look at each piece of evidence individually. Item 52 has three bands close to the top, another grouping of three bands, and a single band down here, (Indicating), and that pattern is consistent and looks to be the same as the pattern from Mr. Simpson which also has a group of three, another group of three and a single band down at the bottom. And because of--sorry.
MR. CLARKE: Go ahead, I'm sorry.
DR. COTTON: Because it also has the same pattern, let's go on to sample 12. It also has a group of three bands, another group of three bands, and a single band way down at the bottom, so the DNA banding pattern from item 52 and item 12 are--I'm now speaking as if I was making an initial interpretation from this film--they are certainly consistent with the pattern from Mr. Simpson. Later on, after doing some measurement, you would make a determination that--where you would say the patterns match or they do not match, but at this point they are visibly the same.
MR. CLARKE: All right. Dr. Cotton, what I'm going to ask you to do is without wearing out your thumb, if you are using that to place the arrows, could you place the arrows on each the bands you see in the Bundy walkway lane, item no. 52.
DR. COTTON: Do you want each band or shall we do the two groups of three?
MR. CLARKE: Whichever is easier, as long as it will show the relative positions.
DR. COTTON: It is probably clearer to--
(Discussion held off the record between the Deputy District Attorneys.)
DR. COTTON: I will just--so we don't have too many arrows up here, I will just point to the middle band in this group of three and the middle band in this group of three, just indicating that I have a group of three and a single band down here at the bottom, (Indicating). And I will make the same designation for the--did you want me--I'm sorry.
MR. CLARKE: That's fine.
DR. COTTON: Did you want me to go on to no. 12?
MR. CLARKE: Yes, if you would.
DR. COTTON: I will make the same designation for the two groups of three bands in item no. 12 and the single band down towards the bottom, and the group of three from the known sample from Mr. Simpson, the second group of three, and the single band down at the bottom, (Indicating).
MR. CLARKE: All right. Your Honor, then with the Court's permission, I would ask that this particular x-ray film that has these arrows on it be printed and marked as a People's exhibit.
THE COURT: Yes. Do you want to make that a separate exhibit or do you want to make it a sub exhibit under 257?
MR. CLARKE: The only hesitation I have as a sub exhibit is that there are already sub exhibits to 257, but that may still be appropriate. 257-A(1).
THE COURT: A-1.
(Peo's 257-A(1) for id = autorad)
THE COURT: All right. Would this be an appropriate point?
MR. CLARKE: Yes.
THE COURT: Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all of my admonitions to you. Do not discuss this case amongst yourselves, don't form any opinions about the case, do not allow anybody to communicate with you, do not conduct any deliberations until the matter has been submitted to you. We will stand in recess until one o'clock. All right. Dr. Cotton, you may step down.
(At 12:00 p.m. The noon recess was taken until 1:30 p.m. Of the same day.)
Los Angeles, California; Thursday, May 10, 1995 1:00 p.m.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open Court, out of the presence of the jury:)
THE COURT: All right. Good afternoon, counsel. Back on the record. Are you ready to proceed? All right. Let's have the jurors, please.
MR. CLARKE: I'm sorry. One item if I may. I don't know if it will occur before--although it might--before the Court would normally take a recess, but it's going to be my request following going through these autorads--and I think I mentioned this to the Court at some point earlier, perhaps not--that we have a light box that's large enough to put two rows, in other words, a full set of cocktails plus the single locus probes in one row, and it's going to be my request that that be shown to the jury in that fashion.
MR. NEUFELD: I have no objection.
THE COURT: Do you have that equipment, paraphernalia available?
MR. CLARKE: It is upstairs, yes, and it can or will be brought down with the Court's permission.
THE COURT: All right. I don't recollect if I told you that--you know, today's normally a 4:00 o'clock ending date--ending time. I want to end at 3:45 today because one of the jurors has a medical appointment. So--
MR. CLARKE: Very well.
THE COURT: Two shorter sessions today. So I would suggest that you have your staff bring that down, and at the first Court reporter break, we'll bring it in.
MR. CLARKE: Very good.
THE COURT: All right. Anything else? Deputy Magnera, let's have the jury, please.
MR. CLARKE: The only thing, that apparently we need permission to bring it in the back door. It's large.
THE COURT: Too large to come through here?
MR. FAIRTLOUGH: It would be difficult. It would be much easier just to be able to bring it in at an angle and place it at the end of the jury box.
THE COURT: How do you propose to get back there?
MR. FAIRTLOUGH: I believe, in speaking with the Court clerk, we could use perhaps Department 102, which is a little less constricted with the amount of seats to be able to move the object back into the Court.
THE COURT: Are there any courts on the floor that aren't in session on this side of the building?
MR. FAIRTLOUGH: At this time, I do not know.
THE COURT: Well, that's why we have lunch hours.
(Brief pause.)
MR. FAIRTLOUGH: We can bring it down right now, your Honor.
THE COURT: Okay. Go get it. All right. Deputy Magnera, let's have the jurors, please.
(The following proceedings were held in open Court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Dr. Cotton, would you resume the witness stand, please. The record should reflect we've now been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
Robin Cotton, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: Dr. Robin Cotton is again on the witness stand still on direct examination by Mr. Clarke. Mr. Clarke, you may continue.
MR. CLARKE: Thank you, your Honor. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
DIRECT EXAMINATION BY MR. CLARKE
MR. CLARKE: Dr. Cotton, I believe we had left off where you had described or actually demonstrated to the jury on this x-ray film of the samples that included the foyer at the Rockingham residence as well as the Bundy stain, items 12 and 52, as well as item-- well, let me rephrase that. You have described those two particular evidence items; is that right?
DR. COTTON: That's right.
MR. CLARKE: With regard to the third item--
MR. CLARKE: Can I have just a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MR. CLARKE: Your Honor, if I may return People's exhibit 257-A to the elmo projection machine. Mr. Harris has graciously offered to view it for us.
(Brief pause.)
THE COURT: All right. This is 257-A(1).
MR. CLARKE: Now, Dr. Cotton, perhaps I can ask you to come down to the point maker, if you would.
(The witness complies.)
MR. CLARKE: And you have already described the similarity in patterns between the two evidence items, Bundy stain no. 52 and the Rockingham foyer stain no. 12 and the pattern of Mr. Simpson; is that right?
DR. COTTON: Yes.
MR. CLARKE: Is there another evidence item also on this particular autorad or x-ray?
DR. COTTON: Yes.
MR. CLARKE: And what item is that?
DR. COTTON: Uh, no. 78.
MR. CLARKE: And that's no. 78, the boots--I'm sorry--the stain from Mr. Goldman's boot?
DR. COTTON: That's right.
MR. CLARKE: Now, would it be easier to go into these single locus probes or these auto--x-ray autorads that describe one genetic marker at a time for items 52 and 12 or would it be easier to deal with item 78, the boot stain, now at the cocktail x-ray film?
DR. COTTON: It would probably be easier, given that we're viewing this on the screen, to just go on to the individual films and then incorporate 78 in those and then perhaps come back to this one.
MR. CLARKE: All right. Do you have these one probe at a time x-ray films for, again, this same set of samples?
DR. COTTON: Yes.
MR. CLARKE: All right. Then I would ask, your Honor, to have marked next in order--actually I believe it's already been marked. 257-B as in boy.
(Brief pause.)
MR. CLARKE: Dr. Cotton, do you have those or do you have the originals with you?
DR. COTTON: These are the originals.
MR. CLARKE: Okay. Then what I'm going to ask--and actually perhaps to make the record even clearer, what I would ask permission to do is substitute the originals for what was initially marked as 257, each of the autorads for this particular item.
THE COURT: Yes.
MR. CLARKE: So then what would be now People's exhibit 257-B as in boy will be the original autorad itself for this particular RFLP test.
(Peo's 257-B for id = org. Autorad)
MR. CLARKE: If I can show you, Dr. Cotton, the x-ray film that you just handed me and I've now handed back, what is that?
DR. COTTON: This is the autorad that was produced for this same set of samples using only probe ms1. The probes have letters, sort of letter, number designations and there isn't any way for them to make particular sense. These are--some of these are the number designations that were given in the lab where they were originally developed. So ms1 doesn't have any particular meaning. Just take it as the name of the genetic location we're going to look at.
MR. CLARKE: So it's simply the way you describe one particular genetic marker that you look at in the laboratory?
DR. COTTON: That's right. And this is the designation we use. When we talked the other day about a d1 something number, these also have d numbers. This--the number for this is d1s7, but these are marked with our lab designations, and it's marked ms1.
MR. CLARKE: All right. And with the Court's permission, I would ask that this particular x-ray film be placed on the overhead projection system.
THE COURT: Yes.
MR. CLARKE: Now, Dr. Cotton, referring to this particular x-ray, we see what appears to be labels at the top that are similar to those on the previous x-ray that involve the several probes done at one time?
DR. COTTON: Yes. They're the same.
MR. CLARKE: How do you produce an x-ray film from a particular membrane that you've already produced an earlier x-ray film from? Why isn't all the DNA on the first x-ray film?
DR. COTTON: The DNA isn't ever on the x-ray film. The DNA stays on the membrane. The probe binds to the membrane. Then you lay the x-ray film over, get your exposure. Then you can wash the probe off, leaving the original DNA from the gel still bound to the membrane and, therefore, you can reuse that membrane several times. This series of films and the other series of films are literally superimposable one on the other. That is, all these films from this same gel, from the membrane from this same gel are superimposable one on the other because they came from the same membrane.
MR. CLARKE: Now, there appear to be far fewer bands on this particular x-ray than on the earlier one; is that right?
DR. COTTON: That's right.
MR. CLARKE: Why is that?
DR. COTTON: That's because now we're looking at a single genetic locus. Therefore, each of us, for a single genetic locus, will only have two characteristics. And on this film, all the samples have either one or two, and there's a reason why a sample might have one. But anyway, these samples have either one or two.
MR. CLARKE: Let's talk a little bit about the controls. First of all, are these the same controls as were on this cocktail x-ray film that you described earlier this morning?
DR. COTTON: All the samples are the same as were on the cocktail film.
MR. CLARKE: As far as this first control on the far left labeled lambda, does it have the same number of bands as in the cocktail version?
DR. COTTON: The lam--yes, it does, and so does the 1 KB.
MR. CLARKE: Now, what about the third lane in that's labeled "TDS" from this member of your laboratory. Do we see fewer bands this time than before?
DR. COTTON: We only see two, one here and one here (Indicating).
MR. CLARKE: Why is that? Why don't we see more?
DR. COTTON: Because we're looking at one genetic location. So one of these bands came from this person's mother and the other from his father.
MR. CLARKE: Now, following--following this test and the development of this particular x-ray, were you able to reach any opinions or conclusions about the various samples contained on this particular x-ray?
DR. COTTON: We certainly reach some opinions, but really, you're never reaching a conclusion until you have the full set of films. So based on each film that comes off, you would look at it and make an assessment, but you wouldn't finish making an assessment until you had all the data.
MR. CLARKE: In other words, this is, again, one step in the process?
DR. COTTON: This is one piece, yes.
MR. CLARKE: And this is the first time you've actually tested these samples or looked at these samples at this--at a single genetic marker?
DR. COTTON: That's right.
MR. CLARKE: Once this first single genetic marker is developed, what are you looking for when you look at this particular film?
DR. COTTON: You're looking for the same type of information that you're looking all along; do the DNA banding patterns from the samples that you have, are they--do you have any that are similar, that is the same, visually the same in this case, what--since we're just looking at it and are there any that are different.
MR. CLARKE: Now, with regard to--and let's focus again on simply the Bundy walkway stain no. 52 and the Rockingham foyer stain no. 12. When you looked at those two particular items, did you reach any conclusions?
DR. COTTON: Yes.
MR. CLARKE: Can you describe those? And if it would help to use the point maker, please do so.
DR. COTTON: The--let's see. There's a single band in sample--the DNA from item no. 12. It's very difficult to see here on this projection screen on the original on a light box. There's also a very faint single band from item no. 52.
MR. CLARKE: All right. With regard to that band--
MR. CLARKE: First of all, if I could, your Honor, with the Court's permission, I would like to take this particular film, lay it on this small light box so that the witness can examine it briefly.
THE COURT: Yes.
MR. CLARKE: Dr. Cotton, what I just informed the Court I was going to ask you to do, could you do that?
(The witness complies.)
MR. CLARKE: Have you had an opportunity to do that?
DR. COTTON: Yes.
MR. CLARKE: And with regard to that one band that you just described, when you look at it on the light box, can you describe what you see?
DR. COTTON: I see a single band, and it's very light.
MR. CLARKE: Again, what is the meaning of a very light--or actually not again. What is the meaning of a light band in this particular instance?
DR. COTTON: In this particular instance, the light band is most likely a reflection of the fact that there's not very much DNA in that sample.
MR. CLARKE: Now, if I can take you back to the point maker, and if you would in a similar manner to that which you did with the earlier cocktail film, could you place an arrow at the location of that band you just described on the Bundy stain as well as on the foyer, Rockingham foyer stain and the known sample that it matches?
(The witness complies.)
MR. CLARKE: Now, Dr. Cotton, with regard to that particular set of arrows, first of all, do either of the two individuals who are on this particular film, that is Nicole Brown or Ronald Goldman, do either of their DNA's appear to match or be in a similar position to this stain, that is both the Bundy stain and the foyer?
DR. COTTON: Mr. Goldman has a band that's very close in position to the single band from Mr. Simpson and, however, he's distinguished. That is, they're not the same because he has a second band about the middle of the gel. The sample from the foyer has no second band, and as far as we can determine, the sample from item 52 does not have a second band either.
MR. CLARKE: So based on this result alone, would Mr. Goldman be a possible donor of the DNA found in the Bundy and foyer stains or would he be excluded?
DR. COTTON: Based on this result alone? Uh, I wouldn't--if this was the only thing I had to look at, I wouldn't want to make a determination based on this alone as to whether or not Mr. Goldman could have been a contributor to item 52. I wouldn't be completely satisfied that there might not be other bands in item 52 that I wasn't seeing, given the one that I can see is so light. So if I was only using this film, I would say, well, certainly, Mr. Simpson is included and Mr. Goldman could be included as well if this was the only data I had.
MR. CLARKE: In this case, is this the only data you have?
DR. COTTON: No.
MR. CLARKE: What other data do you have?
DR. COTTON: We have four other individual probes and the cocktail.
MR. CLARKE: What about Nicole Brown? Could she be a possible donor of the DNA in those two bloodstains?
DR. COTTON: No.
MR. CLARKE: Why not?
DR. COTTON: She has also two bands, one quite high up here, another one down here (Indicating). They are not seen in the foyer sample and, again, there's only one band seen in the Bundy sample. Nothing else is seen. There's no indication that she would be a contributor to that, although, again, if this were the--if this were all you had, uh, all you could say is, well, I have that one band in 52 and it doesn't belong to her.
MR. CLARKE: And in this case, do you have in fact more data to be able to determine whether or not Nicole Brown could have been a donor of those two evidence items, those two bloodstains?
DR. COTTON: Yes.
MR. CLARKE: And did you utilize that in making your ultimate conclusions in that--in this case?
DR. COTTON: Yes.
MR. CLARKE: Now, while we're on this particular autorad, what about children of Mr. Simpson and Nicole Brown? And what I'm focusing on, and if you could direct yourself to, is there anything about this particular autorad or this film that you can make any conclusions about whether or not, for instance of a--I'm sorry--whether or not, for instance, a child of those two individuals could have donated the stains found in the foyer and on the Bundy walkway?
DR. COTTON: Since we don't have that--a child--a particular child's pattern, a child of these two individuals would have one band from Simpson and one band from Nicole Brown. Now, there are no brown--there are no bands that we can see from--that correspond to Nicole Brown's sample in item 52. Uh, however, Mr. Simpson could give this band to a child, and he probably has another band that we can't see on the gel, although I can't say that for certain. So a child of Mr. Simpson could have this same band or may not.
MR. CLARKE: Well, would that child have to have one of the two bands of Nicole Brown that are shown under her lane?
DR. COTTON: Yes.
MR. CLARKE: Do you see either one of those bands--do you see either one of those two bands from Nicole Brown in either of those two evidence items, the Bundy stain or the foyer stain?
DR. COTTON: No.
MR. CLARKE: What conclusions if any can you then reach about whether or not a child of the two of them could have donated the DNA in those two stains?
DR. COTTON: The conclusion would be that a child of Mr. Simpson and Nicole Brown wouldn't be the donor of the DNA in item 12 or item 52.
MR. CLARKE: Now, with respect to this particular marker--and I believe you said it was called ms1?
DR. COTTON: That's right.
MR. CLARKE: Do you then perform this single genetic marker typing process at other individual locations on the DNA molecule?
DR. COTTON: Yes.
MR. CLARKE: All right. What would be the next marker that would be used in an instance like this?
DR. COTTON: The--there is no typical next one. We do them in whatever order is convenient for the staff who's doing the additions of probes to the membrane. So I order them in a particular sequence. We just have a sequence that we keep them in the lab, but it doesn't mean that's exactly the order that the films were produced.
MR. CLARKE: All right. What would be an appropriate marker to look at next then whether it's the chronological order or the way you interpret the results?
DR. COTTON: Let's go on to ms31, but--you know, we could determine what the chronological order was, but I don't know if this is the next one or not. It's what I would commonly look at next. You can do the dotted one next. That--
MR. CLARKE: And, your Honor, this would again be another original x-ray film that was initially marked 257-C that now would be our request to substitute the original for that copy.
THE COURT: All right.
(Peo's 257-C for id = org. Film)
MR. CLARKE: This can be described I believe as-- and, Dr. Cotton, perhaps you can describe this because I believe we will see two separate films at this particular genetic marker. Could you describe this fi