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. Mr. Simpson is again present with counsel, Mr. Cochran, Mr. Scheck, Mr. Neufeld. The People are represented by Mr. Clarke and Mr. Darden. The jury is not present. Counsel, is there anything we need to take up before we invite the jurors to rejoin us and the conclusion of Dr. Cotton's testimony?

MR. NEUFELD: Two matters, your Honor. One is--one has to do with the cross-examination of Dr. Cotton. In particular, with regard to the National Academy of Sciences book "Reporting DNA Technology in Forensic Science." What happened on Thursday and Friday, your Honor, is that the witness, who obviously is extremely familiar with this book, has read it very carefully, in fact, carries her own copy with her in her briefcase, was allowed to avoid being impeached by that book by simply saying as to those portions of the text which she disagrees with, she doesn't rely upon. I think if we allow that type of approach to continue--

THE COURT: Do you have any case authority indicating that the Court's rulings on this were inappropriate?

MR. NEUFELD: Your Honor, I haven't seen any case that stands for the proposition that a witness can selectively pick and choose which sections of a learned treatise she relies upon solely to avoid saying that--I'm sorry--solely to enable her to say that for every section that I disagree with I don't rely on it so you can't bring it to my attention. It would stand the entire rule of impeaching a witness by learned treatise on its head. That is what is so remarkable with this and that is what is going on here, and I don't think that should be allowed to continue. And I have never seen any case anywhere that allows a witness to draw those kind of distinctions between, well, page 365 I agree with, but page 366 I don't and so forth and so on. Obviously she is only going to then rely on those sections she agrees with so one could never under that approach ever use a learned treatise to impeach a witness.

THE COURT: Mr. Clarke.

MR. CLARKE: Your Honor, I think Mr. Neufeld mischaracterizes what the witness has done when he states that she has done this intentionally to avoid impeachment. The truth is she has relied on only portions of that material because those portions are scientifically appropriate and other portions are scientifically inappropriate, so I think to characterize it as selective reliance to make testimony sound better is absolutely absurd in the context of this witness' testimony. The Court asked Mr. Neufeld do you have any authority to demonstrate why the Court's previous rulings are incorrect and Mr. Neufeld simply asked the Court I don't know of any authority that says to the contrary. That is what demonstrates that it can be done the way the Court has said. This Court has previously ruled on this matter now a number of times and I think the Court's rulings are absolutely appropriate under the law, because otherwise the Court would be allowing inadmissible hearsay to come into court.

THE COURT: All right.

MR. NEUFELD: Your Honor, the only point on that, very briefly, is that it is her opinion that certain portions are scientifically inappropriate, but clearly those portions of the report that she regards as scientifically inappropriate were written by the same people who she felt wrote other portions of the report that were scientifically appropriate. The only point I'm trying to make, your Honor, is I can't believe that it is an appropriate attitude within the scientific community to simply reject out of hand, which is what the rule requires so far, reject out of hand those statements, those recommendations written by people in a book in a learned treatise in the same book in which you agree with other portions of it and so those statements can come in. It is setting up some kind of artificial construct which I think, you know, completely dilutes the entire purpose of impeachment with a learned treatise.

THE COURT: All right. Mr. Neufeld, you said you had a second matter you wanted to bring up?

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Yes, your Honor. The second point has to do with the Court's ruling that the People are required to produce the aggregated frequency for mixtures, and that issue will be addressed by Dr. William Thompson.

THE COURT: Mr. Thompson, good morning.

MR. THOMPSON: Good morning, your Honor. Yes, we do have a problem regarding the statistics to be presented in connection with mixtures, such as the mixed stains in the Bronco and stain 78. Last week the Court ruled that statistics must be presented in connection with those mixtures so that the jury would know what to make of them, what to make of the fact, for example, that Nicole Brown Simpson is included in the Bronco mixture.

THE COURT: I understand why I did it.

MR. THOMPSON: Over the weekend we received reports from the Prosecution regarding the statistics that they intend to present and we have serious problems with them. We think that the reports that they have shown us of what they have learned to do failed to comply with the Court's ruling on this matter and we have a series of objections to them that we want to state now.

THE COURT: All right.

MR. THOMPSON: I think at the time of the Court's ruling last week I think we all contemplated that the statistics in question would be frequency statistics to be computed in accordance with the national research council's guidelines. So, for example, to allow the jury to evaluate what it means that Nicole Brown Simpson has genotypes consistent with certain stains in the Bronco, the jury needs to know what percentage of people in the population at large have genotypes consistent with those stains and what percentage would be excluded. And the national research council provides a very simple straightforward way of doing those calculations by summing the matching and non-matching genotypes. What we got from the Prosecution and what they intend to present apparently is not frequencies, but something called likelihood ratios. Likelihood ratios are a ratio of two conditional probabilities, where a conditional probability, as you probably know, is a probability of one event calculated on the assumption that certain other events occurred. These likelihood ratios--we know of no precedent for the admission of likelihood ratios in a criminal matter. In the notice of objections we filed with the Court in March we stated a series of objections to likelihood ratios. All of the objections we stated in our previous memo apply to the likelihood ratios they are offering here, and more. We think the particular likelihood ratios that they are offering that are found in a report prepared by Professor Weir of North Carolina University are lacking in foundation because the assumptions that are predicate to the conditional probabilities don't necessarily jive with the facts of this case and in some ways are completely inconsistent with the Prosecution's theory of the case. So what they have come up with is not something that complies with the Court's order; it is a convoluted attempt to do an end run around the Court's order and present a complex form of statistical analysis that is unprecedented and that we think is quite misleading. Should they--should they be allowed to present this or attempt to present it, we think a 402 hearing may be necessary to evaluate whether these likelihood ratio statistics are in fact admissible. We think this is a failure to comply with the Court's order. We ask that they be ordered to present the appropriate statistics computed in accordance with the national research council's method, or that the DNA picture evidence be struck from the record.

THE COURT: Mr. Clarke.

MR. CLARKE: Yes, your Honor. Again this raises the question that I broached with the Court Friday. What numbers does the Defendant want? I mean, perhaps we can agree on that. But more importantly, what the Defense received was materials from Dr. Bruce weir that this witness, I believe the testimony will show, understands the calculation process, can perform it herself and will do so. Contrary to the Defense's assertion, there is no intent on our part to introduce likelihood ratios. There is a good deal of data in this report that we are referring to, it is approximately twelve pages in length, and it includes frequency information as well that we plan or I plan to elicit from Dr. Cotton during testimony.

THE COURT: Do you plan to elicit an aggregation?

MR. CLARKE: Could I have just a moment?

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

MR. CLARKE: Your Honor, would it be possible for Dr. Cotton to answer the Court's question instead of it being through myself as a conduit?

THE COURT: Certainly. It would save some time, I suspect.

THE CLERK: Would you like her on the witness stand?

THE COURT: No. Dr. Cotton, good morning. What is it that we are going to be hearing and how will it be presented?

DR. COTTON: Let's take the RFLP separately from the PCR for a moment. Although the calculations are done the same, for the RFLP we intended to just discuss the two genetic locations where on the individual film you have evidence of a mixture that will be MS1 and G3. And to simply give the figures for what is the probability, you would pick a pair of people from the population that would have this combination of genotypes that would give you this result. The same--so for the RFLP it is simply giving that figure for the MS1 location and giving that figure for the G3 locus. For the PCR the figures are done likewise. That is, what is the probability you would pick a pair of individuals from the population, so it takes into account all possible pairs that could have given this distribution--this set of alleles, and sums those, and then says what is the probability it would pick two pairs of people that could give this? In his report Dr. Weir does provide information about likelihood ratios, but it was not our intention to discuss that.

THE COURT: All right. What are the numbers that we are going to get on the RFLP and the PCR aggregation?

DR. COTTON: I will have to get those out of my briefcase.

THE COURT: How about a ballpark figure?

DR. COTTON: The ballpark figures for the RFLP range sort of like 1 in 80 to one in either--it is either in the hundreds or thousands. It is not in tens of thousands. The PCR numbers are similar. The reason that they are similar is that for the RFLP you are just looking at a single locus and giving information about that locus. The PCR you are giving the composite information across all of the loci that we have done for PCR.

THE COURT: All right.

MR. CLARKE: To give the Court an example of sometimes the complexity of this, if one were to take the boot drop, item no. 78, and determine what is the probability of finding the 14 bands that were located, it is, for instance, approximately two with about twelve zeros behind it. I mean, they are astronomical, so it all depends on how the question is framed. It is not our intent to present that type, at least during the direct examination, but I think the Court is getting--I'm sure the Court is getting a feel for characterizing this question can be difficult, but I think we are--at least it is our intent to approach it in a very conservative fashion.

THE COURT: All right. Mr. Neufeld, any comment? Excuse me. Mr. Thompson.

MR. THOMPSON: Your Honor, I think it is clear from what has been said that what they are offering is not what the national research council called for.

THE COURT: Counsel, you have the same information before you. What numbers do you come up with?

MR. THOMPSON: Let me show you. You know, I prepared a chart, your Honor, showing what we think is the correct computation with regard to stain no. 29, the Bronco steering wheel, and with your permission could I show you and counsel a copy?

THE COURT: Please.

MR. THOMPSON: Okay.

(Brief pause.)

MR. THOMPSON: Now, your Honor, the frequencies in this chart are taken directly from Cellmark's own frequency data that was disclosed to us in discovery from DNA page 1520. And in order to compute the probability or the percentage of the population that would be consistent with this mixed stain in the Bronco, all that is done is that one lists all of the possible genotypes that one could have that could be consistent with that stain, computes the frequency--adds up the frequency of each of those genotypes in each of the relevant populations and sum them. So we find that among Caucasians 45.4 percent of Caucasians would match stain 29. 59.2 percent of African Americans, 48.8 percent of Hispanics would--would be included--included in the stain. And the percentage excluded would be the complement, simply taking these numbers and subtracting them from one. This is what the jury needs to know in order to evaluate, for example, the fact that Nicole Brown Simpson's genotypes match the stain. These statistics are not what the Prosecution is offering. They are offering conditional probabilities. Even if they don't frame them as a ratio of conditional probability, they are still conditional probabilities. That is the probability of one event conditioned on a set of assumptions. What Dr. Cotton discussed was the probability of a pair of people giving certain results under certain assumptions. Now, the problem is the assumptions. The conditional numbers that Dr. Weir computed, for example, were all conditioned on the assumption that the number of contributors to the mixed stains was two individuals and only two and that somehow we knew that. Now, that might be an appropriate statistic in a case where we know the number of potential contributors to the stain, for example, a rape case where a woman says that she was raped by two men, but in a case like this where we don't know the number of contributors, it is without foundation and irrelevant, prejudicial and completely inappropriate to allow them to present statistics premised on certain assumptions when they cannot demonstrate those assumptions are true. The arguments become circular. In order to--in order to prove the Prosecution's theory of the case is correct, they offer statistics that are premised on the assumption that the Prosecution's theory of the case is correct and we go around and around in a logical merry-go-round and that is why they are able to come up with numbers like 1 in 100 or 1 in 50 when the NRC numbers are 45 percent, 59 percent, 48 percent. So, you know, this is--this is not appropriate, it doesn't comply with the Court's order, and it is not even consistent with their own chart. Their own chart, when they list numbers is headed "frequency." They are not offering frequencies; they are offering these complex conditional probabilities premised on sets of assumptions which are going to be controversial and which I think may not match the facts of this case. For example, if the Prosecution's theory of the case is correct, the number of contributors to the steering wheel stain has to be at least three, and yet the statistics they are offering on that are probabilities based on the notion that there are only two contributors and the statistics ask what is the probability that by randomly choosing two and only two people you would produce the exact results that we see here? That simply is not relevant to the facts of this case.

THE COURT: All right. Mr. Clarke.

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

MR. CLARKE: Yes. With regard to--first of all, Mr. Thompson's characterization is wrong as to the Prosecution's theory that there is three donors on the steering wheel. All that has been reported by Dr. Cotton thus far is that there are types from which two individuals cannot be excluded and there is another allele and that is not inconsistent with two contributors. We know there is at least two because there is a picture. It may very well be only two.

THE COURT: I'm more interested not so much in the theory of the Prosecution's case, but in the method in reaching this calculation in the first place. Have you had the opportunity to review the proposal by Professor Thompson with Dr. Cotton? Because this appears to be the aggregation that is recommended at page 59 of the NRC report.

MR. CLARKE: Just very briefly. If I could, I would like to speak with her a little bit more.

THE COURT: All right. When do you anticipate hitting this point in your--

MR. CLARKE: That is flexible with the Court's direct direction. If cross-examination is finished and then I can conduct my redirect, which at this point is not substantial, then perhaps--I see a smile on the Court's face--then perhaps we could address this issue once Dr. Cotton and I have had a chance to discuss it.

THE COURT: All right. Let's do that. All right. We have framed the issues. I think counsel should have the opportunity to go over with Dr. Cotton what these numbers are. Professor Thompson, do you have a similar calculation for the other stain?

MR. THOMPSON: I don't have it right now, your Honor. I would be happy to discuss with Dr. Cotton how we think that should be approached.

THE COURT: All right.

MR. THOMPSON: For that one we need some additional data which we have access to and we do not.

THE COURT: Okay. All right. Then I propose that we proceed with the jury, that probably what will occur is Dr. Cotton and Mr. Clarke will have the opportunity to confer over the lunch hour, and let's start with the jury now.

MR. CLARKE: Your Honor, if I may, could I ask that Dr. Weir's report be marked as an exhibit for the Court's purposes only?

THE COURT: Yes. I would like to read it over the lunch hour as well.

MR. CLARKE: Fine.

(Court's 11 for id = Dr. Weir's report)

THE COURT: All right. Deputy Magnera, let's have the jurors, please.

(Brief pause.)

(The following proceedings were held in open court, in the presence of the jury:)

THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.

THE JURY: Good morning.

THE COURT: I understand we enjoyed our weekend activities?

THE JURY: Oh, yes.

THE COURT: I understand one of us was unusually lucky. All right. Dr. Cotton, would you resume the witness stand, please.

Robin Cotton, the witness on the stand at the time of the evening adjournment, resumed the stand and testified further as follows:

THE COURT: All right. Good morning again, Dr. Cotton.

DR. COTTON: Good morning.

THE COURT: You are reminded, ma'am, you are still under oath. And Mr. Neufeld.

MR. NEUFELD: Good morning, ladies and gentlemen.

THE JURY: Good morning.

MR. NEUFELD: Congratulations, sir.

JUROR NO. 1290: Thanks.

CROSS-EXAMINATION (RESUMED) BY MR. NEUFELD

MR. NEUFELD: Good morning, Dr. Cotton.

DR. COTTON: Good morning, Mr. Neufeld.

MR. NEUFELD: What I would like to do, Dr. Cotton, is return to item 29 very briefly, which is where we left off Friday. On direct examination you had testified that the Prosecutor's board was not correct because it failed to include Nicole Brown Simpson as a potential contributor to the mixed bloodstain on the steering wheel; is that correct?

DR. COTTON: That's correct.

MR. NEUFELD: And that is why you wrote in the name "Brown"?

DR. COTTON: Yes.

THE COURT: All right. We need to prop that up so the jury can see what we are talking about here.

MR. NEUFELD: Yes.

(Brief pause.)

MR. NEUFELD: Thank you.

MR. NEUFELD: And Dr. Cotton, on Friday during cross-examination you admitted that the no. 4 allele reflects the presence of a potential third person into that mixture; is that correct?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. COTTON: The 4 allele, if you assume that there are three people, the 4 allele is a third person. Alternatively, the 4 allele could just be a second person.

MR. NEUFELD: Well, isn't that true in fact with--

DR. COTTON: You do--

MR. NEUFELD: I'm sorry.

DR. COTTON: You can't tell from this data whether there is two or three people there.

MR. NEUFELD: In fact, in any instance where you have more than two alleles, let's say you have three or four alleles present, you can't tell whether it is a mixture of two people or more than two people, correct?

DR. COTTON: That's right.

MR. NEUFELD: It could be three people, right?

DR. COTTON: Could be.

MR. NEUFELD: It could be four people?

DR. COTTON: It could be.

MR. NEUFELD: Right. But if we are now simply referring to the column on that board, the second to the last column that says "not excluded," you would agree, I think you have already said, that Mr. Simpson cannot be excluded, correct?

DR. COTTON: That's right.

MR. NEUFELD: And I think you also said that you would agree that Nicole Brown Simpson cannot be excluded as well, correct?

DR. COTTON: That's right.

MR. NEUFELD: But you are also saying that you can't exclude some other person whose identity is unknown; isn't that correct, who possesses that 4 allele?

DR. COTTON: That's right.

MR. NEUFELD: So what I would like you to do, Dr. Cotton, is to add, if you would, under the category that says "not excluded," this additional card that says "third person"--

THE COURT: Let me see counsel over at the side bar, please.

MR. NEUFELD: Sure.

THE COURT: With the reporter.

(The following proceedings were held at the bench:)

THE COURT: Why don't you show Mr. Clarke what it is you were posting on there.

MR. NEUFELD: Sure. Similar to what they did on the blood vial that we put up. I can't put up something permanent, so I have a metallic piece that simply adds another category of people who cannot be excluded by this result, which is simply a third person.

THE COURT: Keep your voice down. One other thing. Do not directly address the jurors other than to say good morning. All right. On about four or five occasions you have directly addressed jurors. That is not appropriate in California.

MR. NEUFELD: You mean the jurors at all?

THE COURT: You can say good morning to them. You can't speak directly to them.

MR. NEUFELD: Okay. I'm sorry about that. I really was unaware.

THE COURT: What you--

MR. NEUFELD: So I did something neutral. I didn't try and put who the person was. I just said "third person identity unknown," as another class of people who cannot be excluded by this typing and obviously the person has the 4 allele.

THE COURT: Mr. Clarke.

MR. CLARKE: The first item is Mr. Neufeld was just asked, immediately prior to court, did he have any new exhibits that he was going to seek to use and he said no. That is the first objection. The second relates to, first of all, I don't want and I think the Court should not allow any alteration of our charts whatsoever. This represents an alteration of that chart. It cannot be preserved, shouldn't be preserved and it shouldn't be used on our chart. It is one point to point to items on the chart, have testimony and so forth, but I think any alteration is improper. And third of all, this is clearly misleading because there is no evidence that there is a third person. All we know is two people cannot be excluded, as are ten people couldn't be excluded, but to reach the conclusion as this does, a third person identity unknown, is contrary to the facts of this case.

THE COURT: All right. I find this to be argumentative, counsel.

MR. NEUFELD: Your Honor, the objection about altering the board, I'm not altering the board.

THE COURT: I'm not worried about that. I find that to be argumentative.

MR. NEUFELD: I deliberately picked "third person identity unknown" because it is not argumentative, your Honor.

THE COURT: It is. It is. Sustained. Sustained.

MR. CLARKE: Your Honor--

(The following proceedings were held in open court:)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: One moment, your Honor.

(Brief pause.)

MR. CLARKE: Could we see you briefly, your Honor? We would like to make a request of you.

THE COURT: No. Let's proceed.

(Brief pause.)

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you.

MR. NEUFELD: Dr. Cotton, given the observed alleles on item 29, the mixed bloodstain on the steering wheel, there is a category here called "not excluded." Do you see that?

DR. COTTON: Yes.

MR. CLARKE: I'm sorry, your Honor. May I walk through so that I can see this chart?

THE COURT: Certainly.

(Brief pause.)

MR. NEUFELD: Sure.

MR. NEUFELD: And the alleles observed again on sample 29 are 1.1, correct?

DR. COTTON: Yes.

MR. NEUFELD: 1.2, correct?

DR. COTTON: Yes.

MR. NEUFELD: And finally the 4?

DR. COTTON: Yes.

MR. NEUFELD: And if we were able to make a separate column called "not excluded," you would agree--you would agree, Dr. Cotton, that Mr. Simpson could not be excluded as a contributor to this mixture; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: So I'm going to add his name into the column of people who cannot be excluded. And would you agree that given the alleles in this mixture that Nicole Brown Simpson cannot be excluded?

DR. COTTON: That's right, I agree.

MR. NEUFELD: So I'm going to add her name to the column of people who cannot be excluded. Is that consistent with your testimony?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that also given the presence of the 4 allele, that anyone else who has a genotype for DQ-Alpha of either 4 comma 4, 4 comma 1.1 and 4 comma 1.2 cannot be excluded?

DR. COTTON: Yes, I do.

MR. NEUFELD: So may I add that collective person, if you will, as a third category under not excluded?

DR. COTTON: Yes. That would be another group of people that wouldn't be excluded.

MR. NEUFELD: Thank you.

MR. NEUFELD: And is it consistent with your testimony if I simply describe this person as someone of either type 4 comma 4 or 4 comma 1.1 or 4 comma 1.2; is that correct?

DR. COTTON: Yes.

MR. NEUFELD: So but your testimony and your observations of this DQ-Alpha type then, it would be these three different listings under the "not excluded" column; is that correct?

DR. COTTON: That's the three different listings you get if you are assuming three contributors. You can break it down in that manner--

MR. NEUFELD: I'm not assuming anything.

MR. CLARKE: I'm sorry, could the witness finish her answer, please?

THE COURT: Yes.

MR. NEUFELD: Please do.

DR. COTTON: You could--you could simply also make a list of all the possible genotypes that could be in there and it would include the ones you have listed there, including the one for Mr. Simpson and the one for Nicole Brown.

MR. NEUFELD: In your column where you have "not excluded," you didn't make an assumption that there was simply two donors, did you?

DR. COTTON: No. We didn't make any assumption at all about how many donors there were.

MR. NEUFELD: Right. So likewise, if we don't make any assumption as to how many donors there are in the categories of people not excluded, then would you agree then with the three different groupings that I have placed on Defendant's next in order--which would be what, your Honor?

THE COURT: I believe it would be 1151.

MR. NEUFELD: 1151.

THE COURT: 1151.

(Deft's 1151 for id = chart)

MR. NEUFELD: Is that correct, sir? Ma'am? Doctor? Excuse me. Long weekend. I apologize.

DR. COTTON: Yeah. What I'm--you are correct, but what I'm trying to get--the point I'm trying to get to is that if you don't make any assumptions at all about how many donors there are in there, there are genotypes that aren't on your list.

MR. NEUFELD: You wouldn't exclude a 1.1, 1.1? You wouldn't exclude a 1.2, 1.2? I'm sorry. 1.1 is on the list, isn't it?

DR. COTTON: That's right. Okay.

MR. NEUFELD: Isn't that Nicole Brown Simpson?

DR. COTTON: You are right, I guess we have--

THE COURT: Wait, wait, wait, wait, wait. First of all, you can't talk at the same time. Secondly, when I say "Wait," everybody stops, including you, Dr. Cotton, including you, Mr. Neufeld.

MR. NEUFELD: I'm sorry.

THE COURT: You can't argue with the witness and with the answer that she is giving. You get to ask questions and you get to give answers, doctor. Proceed.

MR. NEUFELD: Thank you.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: With the Court's permission, your Honor, I would just like to be able to move the pad so the rest of the jurors can see it as well.

(Brief pause.)

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you.

MR. NEUFELD: Now, in terms of eliminating other possible contributors to this mixed stain, Dr. Cotton, are you aware that neither Dennis Fung or Andrea Mazzola could have contributed the no. 4 allele to this mixture?

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

THE COURT: Sustained.

MR. NEUFELD: All right. Let me ask you a hypothetical based on a good faith basis. May I just show something to the Court?

MR. CLARKE: I'm sorry. Your Honor, may we approach the bench, please?

THE COURT: Yes, with the court reporter.

(The following proceedings were held at the bench:)

MS. CLARK: Your Honor, may I be heard on this? This has gotten out of hand and ridiculous.

THE COURT: No, you may not.

MR. CLARKE: Your Honor, this is outrageous in my view. Counsel is producing pieces of paper, attempting to show them in front of the jury as a basis for asking questions and is being demonstrative in front of the jury--let me finish, please--to be able to establish certain points to the jury. Now, I think that is absolutely outrageous conduct. It is done with a particular point to make in front of the jury. It is done--and I don't know about in New York it being proper, but it is clearly improper in a California courtroom, and I venture to say certainly in any courtroom, for counsel to be attempting to prove facts in front of the jury through an improper means, knowing that objections will be made to those acts and seeking to get across those points by the very acts themselves.

MS. CLARK: Second time in twenty minutes.

THE COURT: All right.

MR. CLARKE: When the Court takes that into consideration, along with what happened this morning, which was blatantly showing an item that had never been shown to us, had never been brought up with the Court and was knowingly objectionable, this is twice within the first short period of time and I think counsel needs to be told by the Court this cannot happen again.

MR. NEUFELD: May I be heard, your Honor?

MR. CLARKE: And--

THE COURT: Wait. What is your hypothetical question?

MR. NEUFELD: The hypothetical question--well, I can read it to you. I have it right there.

(Brief pause.)

MR. NEUFELD: My understanding under California law is for a hypothetical I don't have to--I'm not limited to the facts that are actually in evidence if I have a good faith basis for asking the question. The hypothetical will be as follows, your Honor--

MR. CLARKE: I'm sorry. Could counsel keep his voice down.

MR. NEUFELD: A tow truck driver testified that the Bronco was locked when he towed it from Mr. Simpson's home to the LAPD print shed for safekeeping. Dennis Fung testified the Bronco was locked when he and Andrea Mazzola arrive at the print shed to collect the bloodstains the next morning. Assume that the LAPD ran DNA tests on some of the employees in the SID lab. And assume further that criminalist Dennis Fung and Mazzola were among the group tested. Would you agree as an expert that if their DQ-Alpha types did not include the no. 4 allele then they could not have contributed--

MR. CLARKE: Adjust the volume.

MR. NEUFELD: They could not have contributed the no. 4 allele to the mixture? That is it and this is the good faith basis for asking that question.

THE COURT: Mr. Clarke.

MR. CLARKE: I think it is just outrageous to take that report and parade it in front of the jury. I can't urge that to the Court enough, particularly since it has happened twice today. I think it is absolutely wrong. And I'm going to ask that the jury be admonished about this waving, showing exhibits that are absolutely improper in court.

THE COURT: Do you object to the hypothetical question?

MR. CLARKE: Yes.

THE COURT: Why?

MR. CLARKE: Because it assumes facts not in evidence at this point.

MS. CLARK: Also improper foundation.

MR. CLARKE: And it is also misleading because there is a second report that demonstrates, for instance, genotypes that are going to play a role of these particular individuals. Counsel is selectively picking various pieces of evidence to use with these witnesses, and the answer to the question isn't helpful; it is argumentative. This witness has already said the person has a 4 allele, whoever that it is. What good does it do to this jury to establish that this person doesn't have a 4 allele? We could take any of the detectives. I mean, we could go on forever and ever. Andrea Mazzola, for instance, to my knowledge, was never in the Bronco.

MR. NEUFELD: I'm not--I'm not going on forever. I'm simply asking about the two other people who said they were at the Bronco collecting this stain. And frankly, the D1S80 result is completely irrelevant because as their witness has already testified once, you have an exclude--the person is excluded. All I want to show is that neither of these people could have contributed the no. 4 allele. Good faith basis.

MR. CLARKE: I'm sorry; volume.

THE COURT: All right. The objection is sustained.

(The following proceedings were held in open court:)

THE COURT: Thank you, counsel. Proceed.

MR. NEUFELD: One moment, your Honor.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, the first samples that were sent to you by the Los Angeles Police Department were sent on or about June 22nd, 1994; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: At least initially the person that you were expected to contact with the results of your testing was Michele Kestler with the LAPD; is that correct?

DR. COTTON: She was one of the contacts, yes. There were--there was another person who could also be a contact, if I remember correctly.

MR. NEUFELD: Let me just show you a document to see if it refreshes your recollection on this point. Let me ask you this question: Were you, at least initially, instructed by the Los Angeles Police Department that the results should be communicated to Michele Kestler?

DR. COTTON: Yes.

MR. NEUFELD: And I believe on September 8, 1994, your laboratory prepared a report on DNA results, did it not?

DR. COTTON: We have a lot of reports. Which one--

MR. NEUFELD: The one dated September 8th?

DR. COTTON: Yes, I found it.

MR. NEUFELD: You found it?

DR. COTTON: Yes.

MR. NEUFELD: Okay. And that is a report written to Michele Kestler?

DR. COTTON: That's right.

MR. NEUFELD: And isn't it a fact that on September 12th of 1994 Cellmark actually faxed a copy of this report to Michele Kestler at the Los Angeles Police Department?

DR. COTTON: We may have. I don't have all those records down here with me.

MR. NEUFELD: Perhaps I can help you.

(Brief pause.)

MR. CLARKE: I'm sorry, may I see what counsel is referring to, your Honor?

MR. NEUFELD: Sure.

(Discussion held off the record between Deputy District Attorney and Defense counsel.)

MR. NEUFELD: What is next in order, your Honor?

THE COURT: 152. Excuse me, 1152.

(Deft's 1152 for id = document)

MR. NEUFELD: I will show you a document which has been marked as 1152 which is a five-page letter--five-page report, excuse me, and ask you if you can identify that document?

DR. COTTON: Yes. This is a copy of the September 8th report, and although the fax cover is not here and I can't exactly read all the figures at the top, it seems to say "From Cellmark Diagnostics." I don't--I can't read any fax date on the top, however.

MR. NEUFELD: If you look at the next page, or the page after where it seems to be a little bit clearer, can you see a date?

DR. COTTON: There we go. Right, right, and the date is September 12th, 1994, at 1:45.

MR. NEUFELD: Okay. So that would indicate, Dr. Cotton, thank you, that this September 8th report was faxed to Michele Kestler at the Los Angeles Police Department on September 12th, 1994?

DR. COTTON: Yes.

MR. NEUFELD: Now, did Cellmark disclose the results in that report to anyone, other than Michele Kestler, during the month of September?

DR. COTTON: No.

MR. CLARKE: Objection, relevance.

THE COURT: Overruled.

MR. NEUFELD: Did Cellmark disclose any of the results contained in that report of September 8th to anyone in the media?

MR. CLARKE: Same objection.

DR. COTTON: Absolutely not.

THE COURT: Overruled.

MR. NEUFELD: Are you aware, Dr. Cotton, that there were certain media reports on September 12th concerning the results?

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

THE COURT: It is irrelevant.

MR. NEUFELD: I want to ask you some questions, Dr. Cotton, about the substrate controls in this case. All right?

DR. COTTON: Sure.

MR. NEUFELD: Now, in this case Andrea Mazzola testified that she created substrate control swatches for every stain that she collected at Bundy and Rockingham. Are you aware of that, by the way?

MR. CLARKE: Objection, relevance.

THE COURT: Overruled.

DR. COTTON: Umm, no. I've watched little bits and pieces of testimony here and there, but I have not listened to the entirety. I didn't have time to do that, so I'm not--

MR. NEUFELD: Now, you stated--okay, thank you. You stated on direct examination, Dr. Cotton, that testing the substrate control swatch can be informative if the testing of that swatch reveals the presence of DNA; is that correct?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree that if DNA is found, one explanation could be that there were certain biological materials in the area immediately adjacent to the bloodstain?

DR. COTTON: Yes, that would be the interpretation.

MR. NEUFELD: And would you agree that another explanation, Dr. Cotton, could be that both the blood stained swatch and the substrate control swatch were cross-contaminated at some point after the collection of the evidence? Is that another possible interpretation?

DR. COTTON: If you are testing the substrate control and you found DNA on it, then that would say that your first explanation would be correct and the other explanation which you just said is that it could have been contaminated later, but it doesn't say anything about whether the actual piece of evidence was contaminated later. It only says something about that substrate control.

MR. NEUFELD: I know, but as an expert in the field, Dr. Cotton, if you saw that--if you thought that there may have been a cross-contamination of that substrate control and the substrate control was also handled all the way along the process of the evidentiary stains, would that cause you to consider the possibility in your mind that the evidentiary stains may also have been cross-contaminated?

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

THE COURT: Overruled.

DR. COTTON: It certainly would say--it would raise that possibility in your mind, but it wouldn't tell you definitely one way or the other.

MR. NEUFELD: Okay.

DR. COTTON: It wouldn't tell you anything.

MR. NEUFELD: Well, it would tell you that you should be concerned about that possibility; is that correct?

DR. COTTON: Yes, but being concerned about it and knowing something aren't the same thing.

MR. NEUFELD: Well, I think you also said that you can't know for sure whether there was cross-contamination with a sample before you ever received it anyway; isn't that right?

DR. COTTON: Of course.

MR. NEUFELD: Well, would you agree with the following proposition, Dr. Cotton: When a stain of blood is analyzed with PCR it is important to analyze the unstained materials next to the stain with PCR as a control for contamination?

DR. COTTON: I think it is--I think you can--I know you can do that. Sometimes, depending on the nature of the evidence, it may be more important to do that than other times. We do not in our laboratory routinely request a substrate control. If we are requested to do one, of course we do it, but we do not routinely request one, or if we are given a big stain, we don't routinely take one, because it is--it is not always going to be informative, depending on the nature of the evidence.

MR. NEUFELD: So what you are saying is that it is your policy to defer to the submitting agency as to whether or not the control swatches get analyzed?

DR. COTTON: That is what we would generally do.

MR. NEUFELD: Now, just getting back to the proposition that I asked you about, Dr. Cotton, would you agree that it is important to analyze the control swatch at the same time for PCR testing as you analyze the evidentiary stain?

DR. COTTON: I don't think it makes any difference if you do it one way or the other.

MR. NEUFELD: But do you believe it is important to do it?

MR. CLARKE: Objection, vague.

THE COURT: Overruled.

DR. COTTON: I'm not sure what you are asking me. Are you asking me is it important to at the same time that you do the DNA extraction from the evidence swatch that you do the DNA extraction from the control swatch at the same time?

MR. NEUFELD: Did you say on direct examination, Dr. Cotton, that it is important, when you have a certain kind of control, be it a negative control or a positive control, that the control should be run in parallel to the actual evidentiary items?

DR. COTTON: Well, I said you should run a reagent blank control in parallel to the actual items.

MR. NEUFELD: And did you also say that you should run the amplification control in parallel to the items?

DR. COTTON: Yes, the negative reagent--the negative control that you set up at the time of amplification is always run in parallel.

MR. NEUFELD: Did you also say that you should run the positive control in parallel--

DR. COTTON: Yes.

MR. NEUFELD: --to the other items of evidence?

DR. COTTON: Yes.

MR. NEUFELD: And you said on direct examination that another type of control that exists is this substrate control; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: So my question, Dr. Cotton, is would you agree with the following proposition: That when the bloodstain is analyzed for PCR it is important to analyze at the same time the unstained material which makes up the substrate control?

DR. COTTON: No, I don't think that--I don't think it is important. I think you can do it later and it will still give you the same information as if you do it at the same time.

MR. NEUFELD: So what you are saying, and correct me if I am misstating it, Dr. Cotton, that as long as you do it later, when you do it is not critical?

DR. COTTON: That's what I'm saying.

MR. NEUFELD: Now, in this case, Dr. Cotton, you received blood-stained items, swatches from items 47, 49, 50 and 52 last summer; isn't that right?

DR. COTTON: Yes.

MR. NEUFELD: And is it also true that when the LAPD sent you those items representing stains from the Bundy walkway, they failed to send you substrate control swatches for the same items?

MR. CLARKE: Objection, argumentative.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: When the Los Angeles Police Department sent you last summer the blood-stained swatches for items 47, 49, 50 and 52, did they send you the substrate control swatches for the same items?

DR. COTTON: No, they didn't.

MR. NEUFELD: And in October of 1994 you received the blood-stained swatches for item no. 48, did you not?

DR. COTTON: You will have to let me check my sheets first.

(Brief pause.)

DR. COTTON: Can you give me some kind of number that I'm looking for here?

MR. NEUFELD: Umm--

DR. COTTON: Or specifically a date?

MR. NEUFELD: October 12. On or about October 12.

(Brief pause.)

MR. NEUFELD: If you take a look in your report dated November 11, 1994, you may see a reference.

DR. COTTON: Okay. Great. Thank you.

(Brief pause.)

DR. COTTON: Okay.

MR. NEUFELD: Is that correct, that on or about October 12th you received blood-stained--two blood-stained swatches representing what was purported to represent item 48?

DR. COTTON: Yes, but I think that was the actual item 48. I got a lot of stuff here, so let me go back, okay?

MR. NEUFELD: Sure.

DR. COTTON: All right.

(Brief pause.)

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, I may have created a misunderstanding and not as been as clear as I should have been there in my question, and perhaps I could save you some time. Isn't it true that on or about October 12th, 1994, that you received two blood-stained swatches which were labeled item 48 from the Los Angeles Police Department?

DR. COTTON: Yes.

MR. NEUFELD: Okay. And in that same shipment did they send you the control swatch, substrate control swatch for item 48?

DR. COTTON: Yes.

MR. NEUFELD: And what record do you have of that--of receiving that control swatch on that date?

DR. COTTON: We have a log-in for item no. 48 with a "C" after it.

MR. NEUFELD: Well, let me ask you this question: In the report that I just referred you to--

DR. COTTON: The--

MR. NEUFELD: --which you referred you to which referred to the October 12th date, didn't that say that you only received two swatches, both of which were stained?

DR. COTTON: Yes.

MR. NEUFELD: It doesn't refer to an unstained swatch being received in that shipment, does it?

DR. COTTON: It doesn't, but we have a statement in our--I'm sorry, I misspoke. I'm only finding the information about item 48 itself in this report with the types from item 48.

MR. NEUFELD: Which would be the stained, the blood-stained portions, correct?

DR. COTTON: That's right. That is why I'm getting confused. I'm not finding what you are referring to and I don't know if it is simply not here or I'm not finding it.

MR. NEUFELD: Well, there is no indication anywhere in your report that you received the substrate control swatch for item 48 in that shipment on October 12th; isn't that right?

DR. COTTON: That's right.

MR. NEUFELD: And since you did not receive from the Los Angeles Police Department the substrate control swatches for those five--for the stains from the purported Bundy drops, would it be fair to say that you also did not run control swatches when you actually did the DNA testing on the evidence itself?

DR. COTTON: We didn't run any control swatches on that early set of evidence at the time that we analyzed that group of samples.

MR. NEUFELD: And would it be fair to say, Dr. Cotton, as an expert, that since the Los Angeles Police Department did not ship to you the substrate control swatches for the Bundy walkway stains at the same time as the evidentiary stains, that you have no knowledge regarding how these control swatches were handled since their purported collection to the present?

DR. COTTON: That would--that would be true, however, we did receive some control swatches later and I would have to look at which samples those were control swatches for. To say I had no knowledge--

MR. NEUFELD: All right. Well, let's start out with the first step.

DR. COTTON: Okay.

MR. NEUFELD: Assuming for a moment that you did receive some control swatches much more recently--is that what you are saying?

DR. COTTON: Yes, that is what I'm saying.

MR. NEUFELD: Okay. Certainly based on the fact that you didn't receive the control swatches along with the evidentiary stains, last summer and in October, would you agree that you have no knowledge regarding how those control swatches were handled since their purported collection up until the time much more recently that you received any of those control swatches?

DR. COTTON: Yes, that--of course that would be the case.

MR. NEUFELD: And Dr. Cotton, in this case there was also testimony that--by Andrea Mazzola that when she testified or August 23rd, 1994, that she had testified that she put her initials on bindles that she processed on the morning of June 14th. My question to you, Dr. Cotton, is do your records reflect that any of the bindles that you received from the Los Angeles Police Department bore Mazzola's initials?

MR. CLARKE: Objection, argumentative, the first portion.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Do your records have Andrea Mazzola's initials on any of them--I'm sorry. Do your records reflect that on the bindles that you received, whether Andrea Mazzola's initials appeared on any of those bindles?

DR. COTTON: They don't reflect whether they do or don't. That is, we wouldn't be writing that down. We would be writing down what was inside the bindle.

MR. NEUFELD: Did you look at bindles yourself when they came in?

DR. COTTON: On the original pieces of evidence or the control swatches later on?

MR. NEUFELD: The original pieces of evidence?

DR. COTTON: We did look at them and we--this is on the first group of stuff that we received, yes, we did look at them.

MR. NEUFELD: And to the best of your recollection isn't it a fact that Miss Mazzola's initials were not on any of those bindles?

DR. COTTON: I don't have any specific recollection. It is not a piece of information that I would have been likely to remember.

MR. NEUFELD: Now, Dr. Cotton, you said that you did receive some control swatches more recently; is that right?

DR. COTTON: Yes, we did.

MR. NEUFELD: Would that be in April, this past April of 1995?

DR. COTTON: Yes, it would.

MR. NEUFELD: And isn't it a fact, Dr. Cotton--I'm sorry. Would that be the only time you received any control swatches in this case?

DR. COTTON: I believe those are the only swatches that we received.

MR. NEUFELD: Okay. Would it be fair to say, Dr. Cotton, that from the very first time you received item 47 in this case until today as you sit on this witness stand, that the Los Angeles Police Department never sent to you the substrate control swatch for item 47?

DR. COTTON: Yes, that would be correct.

MR. NEUFELD: And so item 47's control swatch has never been examined or tested by your laboratory?

DR. COTTON: That's right.

MR. NEUFELD: Would it be fair to say, Dr. Cotton, that from the time they first sent up item 48 in this case until today as you sit on this witness stand, the Los Angeles Police Department never sent you the substrate control for item 48?

DR. COTTON: That's correct.

MR. NEUFELD: Dr. Cotton, apparently they did send you, on April 4th, material labeled item 49, but it doesn't say it was the item 49 control; isn't that correct?

DR. COTTON: It didn't state on the label the word "control."

MR. NEUFELD: It just said "item 49," correct?

DR. COTTON: That's right.

MR. NEUFELD: All right. So do you have independent knowledge as to whether you received on April 4th the control for item 49 or did you just receive a portion of item 49?

DR. COTTON: I have photographs in the case folder of what that item looked like, but I don't have any on-paper writing that says anything other than item 49.

MR. NEUFELD: Okay. So you have no document or record which reflects that you received the control for item 49 either in that batch; is that correct?

DR. COTTON: That's what I just said.

MR. NEUFELD: Now, I call your attention to item 50, the fourth of those stains at the Bundy location. From the date that you first received item no. 50, the evidentiary stains, until today, as you sit here on this witness stand, have you ever received the substrate control swatch for item no. 50?

DR. COTTON: No, we haven't.

MR. NEUFELD: Finally, for item no. 52, Dr. Cotton, on the day you received the evidentiary portion of item 52 until today as you sit here on this witness stand, has the Los Angeles Police Department ever sent to you the substrate control swatch for item 52 for DNA analysis?

DR. COTTON: No, they haven't sent it to us.

MR. NEUFELD: In your laboratory, Dr. Cotton, is there a standard procedure that every employee who removes or puts something into a bindle puts his or her initials on the bindle?

DR. COTTON: Yes.

MR. NEUFELD: And are you familiar with the practices in other laboratories, Dr. Cotton?

DR. COTTON: Not particularly.

MR. NEUFELD: Well, Dr. Cotton, to the extent that you have expertise in this area, would you agree that it is a standard procedure at every forensic science laboratory to have an individual who either removes or puts something into a bindle to initial that bindle?

DR. COTTON: I can really only speak for what we do in our laboratory, and when we take something in and out the bindle is taped and initials are put across the tape and the adjacent paper.

MR. NEUFELD: Now, referring to another type of control, Dr. Cotton, you mentioned something called a reagent blank; is that right?

DR. COTTON: Yes, I did.

MR. NEUFELD: And is the reagent blank sometimes referred to as an extraction blank also?

DR. COTTON: Yes.

MR. NEUFELD: And is that because this control starts at the beginning of the processing of the sample at the laboratory when you first extract the DNA from the sample?

DR. COTTON: That's exactly right.

MR. NEUFELD: And am I correct in saying, Dr. Cotton, that a reagent blank is simply a tube without any DNA in it that gets processed along with all the other evidentiary samples?

DR. COTTON: Yes. Generally that is what it is, or it could, on rare occasions, contain--if you had to swab a stain off of something, if we had to do that in the lab and that hadn't previously been done for us, we might include a piece of the swab before it was used, so it is not always absolutely empty, but most of the time it is.

MR. NEUFELD: And generally, at least in this case, that is what you meant by a reagent blank, one that was empty?

DR. COTTON: That's right.

MR. NEUFELD: One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Now, if at the end of all those steps that comprise the DNA typing procedure, Dr. Cotton, the reagent blank tests positive for the presence of DNA, it means the control failed; is that correct?

DR. COTTON: You are putting a very black and white interpretation on there. It means that you have some DNA that was in there at some point, and that is not a term to say a control failed. That almost means to me that the control didn't provide you with the information that you need, instead of did, so--

MR. NEUFELD: Well--

DR. COTTON: --I--I wouldn't choose that term myself.

MR. NEUFELD: All right.

DR. COTTON: But it does mean that you have some DNA in there that you normally would not expect to have in there.

MR. NEUFELD: Well, it is not just normally, Dr. Cotton. The way you run your experiment and the reason you have this reagent blank is--and the way it is run in this case, for instance, is because if the test is run correctly, there shouldn't be any DNA in the reagent blank at the end of all those steps when you analyze it; isn't that correct?

DR. COTTON: That is exactly right, yes.

MR. NEUFELD: And in fact, if you do see the presence of DNA, it means that the experiment was not a success? Would you agree with that?

DR. COTTON: Well, again, it is the same thing. It is--it is informative. It doesn't necessarily mean your results are wrong if you equate wrong with success or correctness with success. That doesn't mean your results are wrong. It does mean that you want to go back and possibly redo it, possibly, you know, relook at what you did. You might only go back--if you thought something had happened just at the very last part, you might want to just go back and do the very last part. That means you want to go back and look at what you've done carefully.

MR. NEUFELD: Well, Dr. Cotton, if in fact you see DNA profile in the reagent planning, which is supposed to have no DNA in it, could that also mean that evidentiary specimens that were processed at the same time as the reagent blanks were contaminated by some form of DNA?

DR. COTTON: It could mean that.

MR. NEUFELD: In fact, isn't that one of the dangers? When you see a DNA profile in what should be a negative control, isn't that an indication of the possibility that contamination or cross-contamination occur early on in the process?

DR. COTTON: It indicates that that could have happened, yes.

MR. NEUFELD: In fact--now, the first two items of evidence that you received in this case were items 49 and 50; is that right?

DR. COTTON: That's right.

MR. NEUFELD: And when you received each of those two items, Dr. Cotton, I believe you said you cut off ten percent for future testing and you began your testing on the remaining ninety percent; is that right?

DR. COTTON: That's right.

MR. NEUFELD: And so the first step that you undertook when you received those two samples in June of 1994, was to extract the DNA from the ninety percent portion of those two samples; is that correct?

DR. COTTON: Yes, that's correct.

MR. NEUFELD: And this extraction of items--of DNA from items 49 and 50, this was done before Dr. Blake and Dr. Lee even visited your laboratory; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: After the extraction process, Dr. Cotton, you took a small portion of the extracted DNA and you ran I think what you described as either a test gel or a yield gel to determine approximately how much DNA is present?

DR. COTTON: That's right.

MR. NEUFELD: And is that what you actually did with items 49 and 50?

DR. COTTON: Well, I didn't actually do it myself, but that is what was done with 49 and 50.

MR. NEUFELD: And as to both items 49 and 50, when that little mini gel test was run, you concluded that there was too little DNA present for RFLP testing; is that correct?

DR. COTTON: We concluded it was too degraded for RFLP testing.

MR. NEUFELD: Okay. Now, in some situations, Dr. Cotton, after you take that small portion of the ninety percent and do that test, would you be able to recycle the balance of the ninety percent to use for other forms of testing, such as PCR testing?

DR. COTTON: Only--we would only do that if we had run a reagent blank control during that DNA extraction.

MR. NEUFELD: If you had run a reagent blank control that we just described during that port--excuse me--during that part of the process of items 49 and 50, then you would be able to recycle the balance of that ninety percent of the unused DNA; is that right?

DR. COTTON: That's correct.

MR. NEUFELD: But in this case, Dr. Cotton, your laboratory simply didn't run a reagent blank negative control for items 49 and 50; is that correct?

DR. COTTON: Not at the time that we did that first extraction.

MR. NEUFELD: And so for use 49 and 50, at least to the bulk of the ninety percent that you received, it could not be recycled for PCR testing, could it?

DR. COTTON: Well, you could do it. You simply wouldn't have a reagent blank control to run along with it, so we did not use that initial extracted DNA when we did our PCR test on that sample.

MR. NEUFELD: Well, the reason you didn't use the balance of that ninety percent portion is because you could not know for sure whether or not there was some contamination that occurred with respect to items 49 and 50 without having a reagent blank; isn't that right?

DR. COTTON: Yes, we couldn't know what had happened during that DNA extraction.

MR. NEUFELD: And so to be scientifically cautious, you didn't use that portion of 49 and 50 which you failed to use a reagent blank on for follow-up PCR testing; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: Does your laboratory keep a centralized log indicating the number of times that you failed to run a particular control?

DR. COTTON: No, we don't have any kind of log like that. There are--there--never mind. We don't have a log like that.

MR. NEUFELD: All right. Dr. Cotton, do you agree with the following proposition: If a negative control is positive in one experiment, it indicates a potential problem, not just for that experiment but for any experiment performed by the laboratory at about the same time?

DR. COTTON: I agree that that might be the case, but in other words, it might--it might indicate that there were problems with other experiments or it might indicate there was a problem just with the one thing that you did, and you would have to go back and look at other things to make that determination.

MR. NEUFELD: Well, that is all--

DR. COTTON: So I guess I don't agree with that statement.

MR. NEUFELD: You don't agree with it?

DR. COTTON: Not completely, no.

MR. NEUFELD: Well the statement simply indicates a potential problem, not a definitive problem?

DR. COTTON: Okay. I will go for potential problem.

MR. NEUFELD: Would you agree with that?

THE COURT: Wait, wait, wait.

MR. NEUFELD: Sorry.

MR. NEUFELD: Let me repeat the proposition one more time, Dr. Cotton.

MR. NEUFELD: If a blank control is positive in one experiment, it indicates a potential problem, not just for that experiment, but for any experiment performed at about the same time? Would you agree with that proposition.

MR. CLARKE: Objection, asked and answered.

THE COURT: Overruled.

DR. COTTON: I would agree with that statement as you read it, yes.

MR. NEUFELD: Okay. And Dr. Cotton, are you familiar with that portion of the National Academy of Science report, "DNA Technology in Forensic Science," which addresses the issue regarding the consequences of a control failure in PCR testing?

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

THE COURT: Sustained.

MR. NEUFELD: Well--

MR. CLARKE: Also move to strike counsel's comments.

THE COURT: Overruled. Ask Dr. Cotton if she is familiar with that part of the report.

MR. NEUFELD: Are you familiar with the portion of the NRC report entitled "DNA Technology in Forensic Science" which addresses that same issue, the consequences of a control failure?

DR. COTTON: Can you just tell me what the title of that section is?

MR. NEUFELD: Page 67 of the NRC report, if you would like to take a look at it. It begins on 65 and runs through 67.

(Witness complies.)

MR. NEUFELD: In particular, Dr. Cotton, could you take a look at one portion of that, just to save time.

DR. COTTON: (Witness complies.) The statement that you just pointed out to me is the one that you just read to me.

MR. NEUFELD: Okay. And in fact in your own copy of that book do you have that same statement underlined?

DR. COTTON: Yes. I have many things highlighted in this book.

MR. NEUFELD: And is that statement that I just read to you in fact one of the those statements?

DR. COTTON: Yes.

MR. NEUFELD: And is that a portion of the NRC report that you in fact relied upon in coming to an expert opinion as to the consequences of the control failure in PCR testing?

DR. COTTON: I have read this portion of the book. I'm having a little trouble with this concept of "relied upon." I have read this portion of the book. I agree with some of it and I don't agree with other parts. I happen to agree with that statement, but if you ask me did I agree with and rely upon that whole section, I would have to say no.

MR. NEUFELD: But--

THE COURT: All right. She has indicated she agreed with the portion that you read.

MR. NEUFELD: All right.

THE COURT: All right. Next question.

MR. NEUFELD: And when you read that paragraph, did you also read the very next sentence?

DR. COTTON: Umm, not just this--not when I was looking at it just now.

MR. NEUFELD: Okay. Please do.

MR. CLARKE: I'm sorry, objection. Relevance.

THE COURT: Overruled.

DR. COTTON: Back on 67, right?

MR. NEUFELD: Yes.

DR. COTTON: (Witness complies.) I don't really agree with this next statement, but our laboratory hasn't been in that position, so I don't know--I don't really have a strong opinion one way or the other.

MR. NEUFELD: Well, Dr. Cotton, would this be--portion of the NRC report, namely this next sentence, that you relied upon in reaching your own opinions as to what actions to take when there was a failure of a control in PCR testing?

DR. COTTON: No.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: One moment.

(Brief pause.)

MR. NEUFELD: With the Court's permission may I read the entire sentence that she said she agreed with?

THE COURT: We have been through this already.

MR. NEUFELD: As I stated as a proposition, a portion of the sentence. She has now read the entire sentence and said that she agrees with it.

THE COURT: Ask her the question.

MR. NEUFELD: Thank you.

MR. NEUFELD: Dr. Cotton, do you agree with the opinion of the scientist who authored the DNA technology and forensic science book or the National Academy of Science in which they say, quote--

MR. CLARKE: Excuse me, objection, hearsay as framed.

THE COURT: Sustained, as framed.

MR. NEUFELD: Well--may we have a side bar, your Honor?

THE COURT: No. Very simple hearsay issue, counsel. Proceed.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Dr. Cotton, a moment ago when you said you agreed with and relied on that sentence, were you referring to this sentence, and I quote--

MR. CLARKE: Excuse me. Objection, misstates the evidence.

THE COURT: Sustained.

MR. NEUFELD: May I be heard on this issue, your Honor?

THE COURT: Very simple hearsay issue, counsel. Move on.

MR. NEUFELD: I would simply ask to make a record on the--on that issue, your Honor.

THE COURT: No. Move on. The objection is sustained. You can make any argument at the break. We will break at 10:30.

MR. NEUFELD: In your laboratory, Dr. Cotton, whenever there has been an instant--I'm sorry. One moment.

(Brief pause.)

MR. NEUFELD: In your laboratory, Dr. Cotton, has there ever been an instance when in a similar period of time several different technicians saw DNA results on the negative controls where nothing should be visualized?

DR. COTTON: Yes, we had that occur one time.

MR. NEUFELD: And whenever there has been an instance when more than one technician or scientist observes a failure in the negative controls, do you document that phenomena in any laboratory-wide log?

DR. COTTON: The instance is documented in terms of a report that goes to the quality control assurance manager and what was done to correct it also goes to her.

MR. NEUFELD: So that there will be--

DR. COTTON: In terms of a brief statement of this is what happened, this is what we did.

MR. NEUFELD: So even at Cellmark there have been occasions where the negative controls failed?

DR. COTTON: Yes, and I want to--

MR. CLARKE: Excuse me--

DR. COTTON: I want to be very clear about what I'm saying. We had one instance in which the negative control that is set up at the time of amplification was giving us a signal and we had to go back and figure out that that negative control just--turned out that it by itself was contaminated, but it could have been some other result. And anyway, we had to stop doing what we were doing, go back and figure that out and then restart testing.

MR. NEUFELD: And would it be fair to say, Dr. Cotton, that for each and every time where you've had the negative control failure, you haven't been able to determine, by your investigation, exactly how the contamination occurred in every instance when it did occur?

MR. CLARKE: Objection, misstates the evidence.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Well, there have been more than one occasion where a negative control has failed; is that correct?

DR. COTTON: No. What I--what I'm trying to tell you is there was one instance where we saw that, and I'm calling it one instance because it was confined to a period of one or two days. And so--so it wasn't just one test. Let me be clear. It wasn't just one test. There were several tests done over that period of two days, but it was this period of a couple of days that we had this problem, and that is the only period of time that we have had that particular problem.

MR. NEUFELD: So with respect to having that particular problem where the negative control failed over a period of one or two days in multiple tests, were you able to determine the precise cause for that failure?

DR. COTTON: We were able to--the--the answer is really no, we didn't know the precise cause.

MR. NEUFELD: One moment.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: And Dr. Cotton, in your laboratory when that phenomena occurred over a period of one or to days in multiple tests seeing DNA in the negative controls where it shouldn't be, would you refer to that phenomena as an outbreak of contamination?

DR. COTTON: I didn't refer to it like that, no.

MR. NEUFELD: Would you say that that is a fair characterization of it?

DR. COTTON: No.

MR. NEUFELD: Have you ever heard that term before?

DR. COTTON: I've heard it in court before. I have not heard it in scientific discussions.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: You just said a moment ago that you only heard it in court proceedings and not in scientific papers; is that correct?

DR. COTTON: I said discussions. That is discussions I've had or--I can only talk about what--discussions I've had, discussions I've had with people in other laboratories or in my own laboratory. If we have one instance of contamination, we don't generally refer to it as an outbreak. It sounds like we are getting the measles or something and it is just not a term that I have heard used in discussing this potential problem with other scientists.

MR. NEUFELD: Dr. Cotton, you said that you read the NRC report many times; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And when you read the NRC report did you see them describe it as an outbreak of contamination?

MR. CLARKE: Objection, irrelevant, calls for hearsay.

THE COURT: Overruled.

DR. COTTON: Well, they may well have. I don't know--I mean, if you look at all the stuff that I have to read, I cannot remember word for word what is in the NRC report, what is in our standard operating procedure and so forth, so if it is in there, fine, but--

MR. NEUFELD: Dr. Cotton--

MR. CLARKE: I'm sorry, could the witness finish her answer?

MR. NEUFELD: Sorry.

DR. COTTON: But it doesn't change the fact that when we discuss it in our lab and when I discuss it with other people that is not the terminology they used or I have heard anyone else use in the setting as I characterized it.

MR. NEUFELD: Dr. Cotton, please go back and look at the very same page we just looked at a moment ago, page 67, and the very next paragraph.

MR. CLARKE: Sorry, objection, hearsay.

THE COURT: Overruled.

DR. COTTON: (Witness complies.) Yes.

MR. NEUFELD: Isn't it a fact that the NRC report states--

MR. CLARKE: Objection, hearsay.

THE COURT: Sustained.

MR. NEUFELD: It is for a different purpose, your Honor.

THE COURT: Sustained. Ask the question appropriately.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Isn't it a fact, Dr. Cotton, that the NRC report describes this phenomena?

MR. CLARKE: Same objection, your Honor.

THE COURT: Sustained. Dr. Cotton, you have reviewed that paragraph?

DR. COTTON: Yes, sir. Yes, I have.

THE COURT: All right. Does that refresh your recollection as to that terminology?

DR. COTTON: They use the term "outbreaks of contamination" in this paragraph.

THE COURT: Fine. Thank you.

MR. NEUFELD: Thank you, your Honor.

MR. NEUFELD: Do you agree, Dr. Cotton, that it is important to discover the source of an outbreak of contamination so that the laboratory can be cleansed of it?

DR. COTTON: No, I don't agree that you must determine the source. Sometimes that is simply not possible.

THE COURT: All right. Mr. Neufeld, the court reporter tells me she is about to run out of paper, so we will take our break at this point. Do you have one or two more wind-up--

MR. NEUFELD: No, I don't. We can take our break right now.

THE COURT: All right. Ladies and gentlemen, we are going to take a recess for the morning session. Please remember all of my admonitions to you. Do not discuss the case among yourselves, form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anyone to communicate with you with regard to the case. And we will take a 15-minute recess.

(Recess.)

(The following proceedings were held in open court, out of the presence of the jury:)

THE COURT: All right. Back on the record. All parties are again present. Let's have the jurors, please, Deputy Magnera.

DEPUTY MAGNERA: Yes, your Honor.

(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. Good morning again, Dr. Cotton.

DR. COTTON: Good morning.

THE COURT: Mr. Neufeld.

MR. NEUFELD: Thank you. Good morning.

MR. NEUFELD: Dr. Cotton, when you referred to the phenomenon in your laboratory where there was multiple instances of negative control failure occurring, when did that happen? Do you know the date?

DR. COTTON: No, I don't know the date without--it was sometime in the last two years, but I don't know the exact date.

MR. NEUFELD: Can you be more specific even as to the month?

DR. COTTON: No.

MR. NEUFELD: Do you know how many cases were included in those control failures?

DR. COTTON: I think it was about somewhere like four or six, something like that.

MR. NEUFELD: And for each of those four or six cases, how many samples were there tested where the negative controls failed?

DR. COTTON: I have--I have absolutely no idea. It wouldn't been--wouldn't have been necessarily all the samples in that case. It could have been like one sample that was done at that time. But how many, I don't have any idea.

MR. NEUFELD: Is there a centralized log which one could access to see how many samples had the negative controls fail in that period?

DR. COTTON: No.

MR. NEUFELD: Would you agree, Dr. Cotton, that it is important to find out the source of the contamination causing the negative controls to fail so that you can correct the cause and thus reduce the likelihood of reoccurrence?

DR. COTTON: It's nice if you can find out the source, but many times, that's not possible. So I would not agree that it was essential or necessary.

MR. NEUFELD: Well, in this case, Dr. Cotton, isn't it true that a reagent blank that was supposed to be blank displayed DNA dots?

THE COURT: Do you want to rephrase that, "this case"? When you say "this case," are we talking about the--

MR. NEUFELD: Oh, I'm sorry.

MR. NEUFELD: In this case, right here in this courtroom involving Mr. Simpson, isn't it true that a reagent blank that was supposed to be blank displayed DNA dots?

DR. COTTON: Yes, there was one.

MR. NEUFELD: And I believe you said on direct examination that there can be two possible explanations for that occurrence. Do you recall that?

DR. COTTON: I do.

MR. NEUFELD: And I believe you said that one possible explanation is that there was a minute contamination during the original extraction which was magnified when it was concentrated along with item 7. do you recall saying something like that?

DR. COTTON: Yes, I do. That's--that's a good restatement of what I said or what I meant anyway.

MR. NEUFELD: Now, is it also possible that a second explanation would be that during the concentration procedure itself, the contamination occurred?

DR. COTTON: Yes.

MR. NEUFELD: So those would be the two possible explanations that you came up with?

DR. COTTON: That's right.

MR. NEUFELD: Now, would you agree, Dr. Cotton, that if one doesn't know which explanation is correct, that to be cautious, it is incumbent on the laboratory to assume that the contamination occurred during the initial extraction?

DR. COTTON: No. I mean--there's two possibilities. There's no way to distinguish between them. So I think it would be inappropriate to assume one or the other.

MR. NEUFELD: Okay. Well, if there's no way that you can prove which one it is, then certainly the explanation that the contamination that led to the reagent blank failure occurred furthest back in time as a possible theory; isn't that correct?

DR. COTTON: Well, certainly that's possible, yes.

MR. NEUFELD: All right. Now, the other--there were other samples that were extracted during that extraction when you set up the reagent blank; isn't that right?

DR. COTTON: Yes. That's right.

MR. NEUFELD: And would you agree that the other items in this case that were extracted at the same time as the commencement of the reagent blank were items 78, 56, 52, 47 and 12?

DR. COTTON: Uh, I'd rather go into my notebooks.

MR. NEUFELD: Please do.

DR. COTTON: Okay.

(The witness complies.)

DR. COTTON: Okay. I have the beginning of the notes on that set of samples.

MR. NEUFELD: Okay. And is item 78 included in that list?

DR. COTTON: The reason I'm having trouble is that our numbers are different than the item 78 number. So what's in the information that I'm looking at are just our own numbers and it doesn't say item 78. So we have to--let me just find the piece of paper and take it out that allows me to easily go back and forth between the two sets.

MR. NEUFELD: Please do.

(Brief pause.)

DR. COTTON: Okay. Yes. Item 78 was in that group.

MR. NEUFELD: And is item 56 in that group?

DR. COTTON: Yes, it is.

MR. NEUFELD: Is item 52 in that group?

DR. COTTON: Yes, it is.

MR. NEUFELD: And item 52 is the one where you did RFLP analysis, correct?

DR. COTTON: That's right.

MR. NEUFELD: And is item 47 in that group?

DR. COTTON: Yes, it is.

MR. NEUFELD: And is item 12 in that group?

DR. COTTON: Yes. That's right.

MR. NEUFELD: And are there any other items in that group that I left out?

DR. COTTON: Uh, you'll have to give me a minute, and I'll let you know.

(Brief pause.)

DR. COTTON: No. That's it.

MR. NEUFELD: Okay. And, Dr. Cotton, given the presence of DNA on the reagent blank negative control happening when you ran that batch of items that you just enumerated, shouldn't you have gone back and repeated the extraction procedure for those five items in the case?

DR. COTTON: No.

MR. NEUFELD: Doesn't your protocol, Dr. Cotton, say that if the reagent blank fails, then all the samples must be reextracted?

DR. COTTON: The reagent blank for the other samples apart from our samples 06, which is item 7, when that reagent blank was originally typed, it typed with no DNA signal visible at all. Therefore, the sets of--the samples apart from sample 7 that did not get put through the microcon could not have been effec--even if we assume--if we just say for the sake of assumption that there was some minor level of contamination that got concentrated later by the microcon, it was not at a sufficiently high level to produce any product whatsoever, and, therefore, it couldn't have affected the types that we came up with on the set of samples apart from the one that went through the microcon.

MR. NEUFELD: Well, Dr. Cotton, isn't it true that a contaminant does not necessarily have to contaminate all samples in the same quantity?

DR. COTTON: Given that all these things are in solution and based on the solutions are--would be normally considered to be even distributions of molecules, I don't really think that that's an important consideration.

MR. NEUFELD: But isn't that true, Dr. Cotton, only if you can assume what the cause of the contamination of the reagent blank is?

DR. COTTON: No. I just--I think that since the reagent blank contamination clearly didn't show up in that first set of samples, that it does not present any problem to that first set of samples.

MR. NEUFELD: But, Dr. Cotton, doesn't your protocol explicitly state that if the reagent blank fails, then the entire experiment for the samples that are run with it should be deemed inconclusive? Isn't that in your protocol?

DR. COTTON: I'd have to look at the protocol to see what it specifically states, but in the protocol, we don't usually use the word "experiment." So would be better to go back and look at what it specifically states. I believe that it states that if possible, the sample should be run again.

MR. NEUFELD: And does it also state to your recollection that the--that the data should be deemed inconclusive?

DR. COTTON: Yes, it states that, but I can't tell you right off the top of my head if it states that as an absolute or it should be--or that that's a possibility that should be considered.

(Brief pause.)

MR. NEUFELD: Let me just show you the following document, see if it refreshes your recollection on this particular point.

(Discussion held off the record between the Deputy District Attorney and Defense counsel.)

MR. NEUFELD: Thank you. Doesn't your protocol say that the--that when this happens, the test will be considered inconclusive? When I say "this," I mean when the reagent blank fails.

DR. COTTON: Yes.

MR. NEUFELD: It doesn't say it could possibly be considered inconclusive, does it? Doesn't qualify it that way?

DR. COTTON: Well, there is a sentence later on that refers to the Ph.D.s using their discretion when--and I can't restate the sentence exactly. Maybe you can find it there. But there is some discretion there on the part of the Ph.D. And this sample was--this sample before--it was amplified before it went through the microcon, and that amplification was also later on typed. So the sample wasn't exactly done in duplicate, but the results were obtained twice.

MR. NEUFELD: Dr. Cotton, in fact, two people reviewed this same reagent blank and both people concluded that there were DNA dots present, correct?

DR. COTTON: There are two.

MR. NEUFELD: There was no descending opinion on that, was there?

DR. COTTON: No.

MR. NEUFELD: All right. And in fact, I believe you said a moment ago that you should try to do reextractions of the samples, but I believe it's your position it's not essential; is that correct?

DR. COTTON: Well, in this case, I don't know that--again, I would have to go back into the notes. I can't tell you whether or not we had enough sample available to do a reextraction.

MR. NEUFELD: Well, to the best of your knowledge, did you make any effort at attempting to reextract those samples?

DR. COTTON: In order to answer your--well, I know that we didn't, but what I can't tell you without going back into the record is whether or not there was anything that was available to us to go back and reextract.

MR. NEUFELD: Would you please take a look at your notes to see whether or not any effort was made by Cellmark to do a reextraction on those samples that were typed at the same time that the reagent blank tested positive?

DR. COTTON: I'm sorry. I guess I didn't understand when you asked me the first time. I thought you were referring to just sample item no. 7.

MR. NEUFELD: No. I'm asking you whether or not efforts were made to do a new extraction from item 78, 52, 56, 47 and 12 after you got a negative control failure on the reagent blank.

DR. COTTON: We didn't get a reagent blank control failure for those items because the reagent blank typed with those items prior to putting it through a microcon was not positive and those items were not repeated.

MR. NEUFELD: Dr. Cotton, didn't you say a few minutes ago that one possible explanation for the DNA dots appearing on the reagent blank could be that when the initial extraction occurred before you even reprocessed it, that when the initial extraction occurred, that's when the contamination occurred? Didn't you say that, doctor?

DR. COTTON: Yes, I did. But the reagent blank dots don't show up. If they don't show up with a set of samples, they can't have influenced anything. If you can't see anything, it can't have affected the types.

MR. NEUFELD: Well, Dr. Cotton, you would agree that somehow, there was a contaminant that got into that reagent blank that created some DNA to be present; isn't that right?

MR. GOLDBERG: Objection. Asked and answered.

THE COURT: Overruled.

DR. COTTON: Somehow, a contaminant got in there to cause the reagent place to be positive at the point for item 7 after the microcon concentration had be--had happened.

MR. NEUFELD: And when you did the--when you created the reagent blank, you created it at the same time, that is, you extracted those other samples I just described; namely 78, 52, 56, 47 and 12; isn't that right?

DR. COTTON: It was started at the same time, yes. But the--the end result, the reagent blank that gave the end result with two faint dots on it was not--had gone through an additional procedure that item--the other items handled apart from item 7 did not go through.

MR. NEUFELD: But finally, Dr. Cotton, didn't you say that you can't rule out the possibility that the contamination of the reagent blank occurred prior to that additional step, that it occurred during the initial extraction?

DR. COTTON: That's right. But I can rule out the possibility that it affected the types.

MR. NEUFELD: Do you even know to this day what actually happened to precipitate that reagent blank from lighting up with DNA dots?

DR. COTTON: No. It would be impossible to determine that at the time you did the work or at this point.

MR. NEUFELD: Now, I ask you to turn your attention to item no. 78, the stain removed from the bottom of the boot on Mr. Goldman.

DR. COTTON: And do you want me to look at PCR information or RFLP?

MR. NEUFELD: I believe you have a report on December 5th that refers to both, but I may be mistaken. Let me ask you this. By December 5th, you had completed both the RFLP testing and the PCR testing; isn't that correct?

DR. COTTON: That's my recollection, yes.

MR. NEUFELD: And I believe it was your testimony on direct examination, Dr. Cotton, that the banding patterns that you observed in item 78 could be consistent with a banding pattern of Nicole Brown Simpson; is that right?

DR. COTTON: Yes.

MR. NEUFELD: But I believe you also said that with respect to the other band seen, it was simply inconclusive as to whether or not Mr. Goldman is included or excluded; is that correct?

DR. COTTON: That's exactly right.

MR. NEUFELD: Now, let's turn to the fingernail scrapings. You did not actually receive fingernail scrapings from the Los Angeles Police Department, did you?

DR. COTTON: No.

MR. NEUFELD: And you did not receive fingernail cuttings from the Los Angeles Police Department, did you?

DR. COTTON: That's correct.

MR. NEUFELD: What you received were solutions if you will from the Department of Justice DNA laboratory in Berkeley; is that correct?

DR. COTTON: That's correct.

MR. NEUFELD: And you do not know what portion of the scrapings were utilized to do the DNA typing, do you?

DR. COTTON: To do the DNA typing in our laboratory or--

MR. NEUFELD: Yes. You don't know from where in the fingernail scrapings the sample was taken for you to do DNA typing in your laboratory; isn't that correct?

DR. COTTON: Oh, yes. That's correct.

MR. NEUFELD: And you do not know from where on the fingernail cuttings the samples were removed for you to do DNA typing in your laboratory?

DR. COTTON: Yes. That's correct.

MR. NEUFELD: And would it be fair to say that you do not know whether the samples or the portions of the samples that Greg Matheson utilized for EAP typing at the LAPD laboratory could have been different portions of those samples?

DR. COTTON: That's right. I don't know that.

MR. NEUFELD: And would you also agree that--

(Brief pause.)

MR. NEUFELD: One second. Your Honor, with the Court's permission, I would like to show the witness this slide which is already in evidence, 1143-E--d.

THE COURT: Proceed.

MR. NEUFELD: Can you see that slide, Dr. Cotton?

DR. COTTON: May I step down and view it from down there?

MR. NEUFELD: Sure. Take your time.

DR. COTTON: Does it matter?

THE COURT: No. Whatever you feel most comfortable with, doctor. Mr. Neufeld.

MR. NEUFELD: Are you aware, Dr. Cotton, that in this particular case, an EAP test was done by Gregory Matheson which provided a result that was different than the EAP profile for Nicole Brown Simpson?

DR. COTTON: I'm aware that he did a test and I'm aware there was some difference.

MR. NEUFELD: Okay. And would you agree, Dr. Cotton, that when you are doing an EAP test, you are looking at what is known as a red blood cell protein?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that red blood cells do not have DNA in them?

DR. COTTON: Yes. That's correct.

MR. NEUFELD: And just to go back for a second, Dr. Cotton, to clarify it for me, in blood cells, there are two--I'm sorry. In blood, there are two types of cells, correct?

DR. COTTON: Well, there's really many kinds of cells--

MR. NEUFELD: All right.

DR. COTTON: --if you want to get real fine differentiations. But if you want to classify them as red cells and white cells for our purposes, that's going to work fine.

MR. NEUFELD: Okay. And, Dr. Cotton, it's only the white cells that have the DNA; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And the red cells for which you do EAP test on do not have DNA?

DR. COTTON: That's right.

MR. NEUFELD: Thank you. You can have your seat again, please.

(The witness complies.)

(Brief pause.)

MR. NEUFELD: I believe one of the statements you made on direct examination, Dr. Cotton, was, the more genetic markers you look at, the more information you have. Is that a fair statement?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that that would apply to conventional serological markers as well as to DNA genetic markers?

DR. COTTON: I would think so.

MR. NEUFELD: For instance, Dr. Cotton, would you agree that you could include somebody with a PCR DQ-Alpha type and then, for instance, do an ABO test which excludes a person?

DR. COTTON: Yes, you could do that. I don't know enough about ABO testing to know the intricacies of what exact kinds of results you get. But could you exclude--could that phenomenon happen? Certainly.

MR. NEUFELD: And--well, and when you're looking at an ABO test, you're not looking at that person's ABO typing on a DNA level; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: And would you agree, Dr. Cotton, that likewise, the fingernail scrapings could appear to be consistent with Nicole Brown Simpson for certain DNA markers, but she could be excluded based on a red cell protein marker, that that's possible?

DR. COTTON: It's possible, yes.

MR. NEUFELD: Let me ask you one other question about these fingernail scrapings, Dr. Cotton. You had said on direct examination that sometimes the scientists in your laboratory are asked to examine a lane from the electrophoretic plate without being influenced by the bands they see on the lane to the left or the bands they see on the lane to the right. Do you recall saying that?

DR. COTTON: Yes, I did.

MR. NEUFELD: And you mentioned that--I believe you said well, one of the things you want to avoid sometimes is the term called "examiner bias"?

DR. COTTON: I didn't say that.

MR. NEUFELD: Have you ever heard the expression "examiner bias"?

DR. COTTON: Yes.

MR. NEUFELD: And not just in forensic context, but have you heard that term used in conjunction with people who are asked to score autorads?

DR. COTTON: Again, it's something that I've been asked about sometimes in court. It's not something we normally are discussing in the lab. But--I don't have anything more to say about it than that.

MR. NEUFELD: Okay. Well, would you agree, Dr. Cotton, that one way to avoid examiner bias on a particular lane that you're asked to score is to do what you said earlier on direct examination; namely, cover up the information on the adjacent lanes and just look at the lane under question?

DR. COTTON: From what we do in the lab with autoradiographs, we do that sometimes because sometimes it's helpful in determining whether a band is sufficiently dark to score it.

MR. NEUFELD: Okay. Now, I want to show you an item which is People's 224-B in evidence which Mr. Matheson was asked to score using that same method; namely, where you cover up the adjacent lanes and interpret it. And I'm going to ask you to take a look at that same lane, Dr. Cotton.

(Brief pause.)

MR. CLARKE: I'm sorry. At some point, could I see the exhibit?

THE COURT: Mr. Neufeld, can I offer you some post-it's?

MR. NEUFELD: Let me use post-it's.

(Brief pause.)

MR. NEUFELD: Now--

MR. CLARKE: Objection as to foundation, your Honor.

THE COURT: Why don't you ask a few foundational questions. Mr. Neufeld.

MR. NEUFELD: Dr. Cotton, have there been times when you have been asked to look at electrophoretic plates or photographs of electrophoretic plates to determine when a certain band may be controversial as to its existence or nonexistence, to make a call on that by covering up the adjacent lanes?

MR. CLARKE: Objection. Vague as to electrophoretic and also beyond the scope.

THE COURT: Which tests are we talking about here?

MR. NEUFELD: I'm going to show her--it's the EAP, your Honor.

THE COURT: Sustained on scope.

(Discussion held off the record between Defense counsel.)

MR. NEUFELD: Separate and apart, Dr. Cotton, for a particular type of test, would you agree, however, that it is a recognized procedure when you have a difficult to interpret lane to cover up the adjacent lanes and score it blindly?

DR. COTTON: Well, again, I can only speak for what we do in our lab, and what we do in our lab only pertains to DNA testing. So in our lab, that's a procedure that we use. I don't--I can't really speak to anything else.

MR. NEUFELD: Well, but Dr. Cotton, even in the field of medical research on DNA testing, isn't that a procedure that is also sometime used in that application?

DR. COTTON: Well, again, I can only tell you what I've done. Umm, I didn't do that when I was running RFLP gels when I was doing research. I just didn't. We do it in our lab for the--the purpose that I described of trying to determine whether we can all see a particular band, and that's the extent of my use of that procedure.

MR. NEUFELD: And would it be fair to say that you at least would regard it as an appropriate procedure for the use in your laboratory?

DR. COTTON: Yes, I do.

MR. NEUFELD: Now, I would like to ask you some questions about proficiency testing, okay? You had referred on direct examination to the fact that Cellmark undergoes proficiency testing; is that right?

DR. COTTON: Yes. That's right.

MR. NEUFELD: And you referred to different types of proficiency testing that Cellmark has undergone; is that correct?

DR. COTTON: That's right.

MR. NEUFELD: And isn't it true, Dr. Cotton, that the Cellmark laboratory makes available a summary of your laboratory's error rate as measured by proficiency testing?

MR. CLARKE: Well, objection. Vague.

THE COURT: Overruled.

DR. COTTON: We make available a summary of the lists of the number of tests, the number of samples that were involved. And if you were to calculate error rate using a specific formula, that all--that calculation is also on that summary sheet.

MR. NEUFELD: I'm not asking you about what the error rate is or--

DR. COTTON: No. I understand.

MR. NEUFELD: --specific numbers at this time, Dr. Cotton. All I'm saying is, don't you in fact on that summary that you send out actually refer to it as an error rate?

DR. COTTON: Yes, we do.

MR. NEUFELD: Okay. And would you agree, Dr. Cotton, that one of the purposes of proficiency testing is to provide a measure of error rate just as you did in the summary that you handed out?

DR. COTTON: You can do that with the results. In my mind, that's not the main purpose, but it's certainly a calculation that one can do.

MR. NEUFELD: I'm not asking you whether it's the main purpose, Dr. Cotton. I'm asking if that's one of the purposes.

DR. COTTON: Yes, it is.

MR. NEUFELD: And would you agree, Dr. Cotton, that there are different types of proficiency testing?

DR. COTTON: Oh, yes. I agree.

(Brief pause.)

MR. NEUFELD: I believe next in order is 1153, your Honor.

THE COURT: All right. Defense 1153.

(Deft's 1153 for id = drawing)

MR. NEUFELD: Now, Dr. Cotton, would you agree that one type of proficiency test is known as open proficiency test?

DR. COTTON: Yes.

MR. NEUFELD: I'm going to call this chart "Proficiency Test" if that's all right with you because we're going to be describing proficiency tests. Is that okay?

DR. COTTON: It's okay with me.

MR. NEUFELD: Okay. Now, one type you said is open proficiency test; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And another type of proficiency test is called a blind proficiency test; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And the difference between an open test and a blind test, Dr. Cotton, is that in a blind test, the laboratory is unaware that it's being tested; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: And in an open test, you're aware that it's a test as opposed to actual casework?

DR. COTTON: That's right.

MR. NEUFELD: And furthermore, Dr. Cotton, there's another way to break down proficiency tests, isn't there? Well, let me ask you this way. Other than simply dividing those tests which are open from those tests which are blind, can you also separate those tests which are internal from those tests which are external?

DR. COTTON: Yes.

MR. NEUFELD: And in an internal proficiency test, the proficiency test is actually created by the laboratory itself that's going to be tested?

DR. COTTON: That's right.

MR. NEUFELD: And on an external proficiency test, some outside agency is going to create this proficiency test and give it to the laboratory such as Cellmark to be tested?

DR. COTTON: That's right.

MR. NEUFELD: And so you would agree that there are basically four types of proficiency tests based on what we've just discussed. Is that a fair statement?

DR. COTTON: Sure.

MR. NEUFELD: And one type then would be called an open external test; is that right?

DR. COTTON: Yes. Maybe I should come down and watch you draw.

MR. NEUFELD: Okay. All right. And a second type of proficiency test will be called an open internal test, namely, a test where the laboratory knows it's being tested and the test was made inside the laboratory; isn't that correct?

DR. COTTON: Yes.

MR. NEUFELD: And based on what you just testified to as to the four different categories of proficiency testing, a third category would be called a blind external test, correct?

DR. COTTON: Yes.

MR. NEUFELD: And a fourth category would be a blind internal test; is that correct?

DR. COTTON: Yes.

THE COURT: Check out proficiency.

MR. NEUFELD: It's been brought to my attention by my colleagues that this New York lawyer also has a spelling problem and there should be an "I" in here; is that correct, Dr. Cotton?

DR. COTTON: Yeah. I have a spelling problem too though.

MR. NEUFELD: It's an east coast phenomenon, your Honor.

MR. NEUFELD: Thank you, Dr. Cotton. So would you agree that these are the four categories of proficiency tests?

DR. COTTON: Yeah. You can break them down and that's a way to do that.

MR. NEUFELD: All right. Great?

MR. NEUFELD: Could you just help me--why don't you--so the other jurors can see it.

(The exhibit was displayed to the jury.)

THE COURT: All right. Mr. Neufeld. Proceed.

MR. NEUFELD: Yeah. I would like to put it over on the side if I may, your Honor, because I'm going to be referring to it during the next portion of the questioning.

THE COURT: Proceed.

MR. NEUFELD: All right. Now, Dr. Cotton, when you prepare tests yourself--when I say "you," I don't mean you personally, Dr. Cotton. I mean Cellmark, the Cellmark laboratory--you of course are familiar with the strengths and weaknesses of your own laboratory, aren't you?

DR. COTTON: I hope so.

MR. NEUFELD: Now, but when an external agency prepares a test, they're preparing a test that's going to go out to a number of different laboratories generally; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: And the external agency is not simply thinking to itself, well, what are Cellmark's strengths and weaknesses. There's not how it works, is it?

DR. COTTON: I hope not.

MR. NEUFELD: Okay. And would you agree, Dr. Cotton, that a proficiency test that mirrors actual casework would be a good basis for measuring laboratory error rate as opposed to a proficiency test that doesn't replicate actual casework?

DR. COTTON: What do you mean by replicating actual casework?

MR. NEUFELD: Well, for instance, if you were interested in how well the laboratory analyzed forensic samples, you wouldn't rely on a proficiency test where you received simply, you know, a statement saying that, "We're giving you four pristine pieces of white cloth which we simply dabbed a single blood drop on and we want you to type that." Would you agree with that?

MR. CLARKE: Objection. Unintelligible.

THE COURT: Overruled.

DR. COTTON: Umm, well, that's pretty much like a forensic case sample. You have standards that are on a cloth that way. So--if you're talking about, are they about the same number of samples and the same types of samples, then the proficiency tests seem to be sort of the--about the same numbers you would see--receive in an average case and about the same types--I think they try to make the same types of samples that you would receive in a case. But clearly they're making the samples. They're not like picking them up from an actual crime scene.

MR. NEUFELD: Well, for instance, Dr. Cotton, in this case, there are several samples which are purported to be mixed stains or stains from more than one source; is that right?

DR. COTTON: Yes.

MR. NEUFELD: And that's something that is not uncommon in casework, right?

DR. COTTON: That's correct.

MR. NEUFELD: And so if you wanted to have a proficiency test where you tried to replicate actual casework conditions, it would be a good thing to have some--some mixed stains thrown in, wouldn't it?

DR. COTTON: Sure.

MR. NEUFELD: And in this case, for instance, Dr. Cotton, there is samples which are purportedly scraped up off the sidewalk. Are you aware of that?

DR. COTTON: Scraped up off the sidewalk?

MR. NEUFELD: I'm sorry. Swatched up off the sidewalk.

DR. COTTON: Yes, I'm aware of that.

MR. NEUFELD: And then there are samples that are swatched up off of a driveway?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that samples that are collected from those types of locations are frequently affected by various environmental insults?

DR. COTTON: Of course.

MR. NEUFELD: So factors such as heat, sunlight, moisture or the substrate condition itself can affect the quality of the testing; isn't that right?

DR. COTTON: Sure.

MR. NEUFELD: And so if you wanted to have a proficiency test that replicated casework, you would like to supply the laboratory that's being tested with some samples that also have been subjected to various environmental insults, wouldn't you?

DR. COTTON: Well, you might like to, but I think for the numbers of samples that the proficiency test folks prepare, that's probably not very practical.

MR. NEUFELD: But if you wanted to replicate the kinds of environmental conditions you see in actual casework, that is something that would be desirable; would it not?

DR. COTTON: I don't think it's necessary. I--I'm not even sure that it's desirable because it would be--what they would be trying to do then would be make say a hundred sample sets, all of which were identical because they want to send every lab an identical sample set, and they would be doing it in a way that would lead to those things not being identical. And part of the goal of the proficiency test is to be able to compare one laboratory to the next. So it's really critical in the design of the test that all labs get equivalent samples.

MR. NEUFELD: Well, although it may be difficult, Dr. Cotton, would you agree that an outside laboratory, somebody creating a proficiency test, could consistently subject the samples that are going to be submitted to some types of environmental insults? Not necessarily all, but some types.

DR. COTTON: It may be possible for them to do that, but my understanding of how the proficiency tests are put together is that--a, that's not the case, and, b, in all the guidelines for proficiency tests to be made, that--I--and I don't think that requirement to make them that much like case samples is in the guidelines.

MR. NEUFELD: Well, Dr. Cotton, do you believe that it's possible, for instance, that when you're creating a proficiency test that's going to go out to many laboratories, that you could take those blood swatches on cotton, for instance, and put them in a room which has a uniformed temperature so they're all subjected to heat? Could that be done?

DR. COTTON: Sure.

MR. NEUFELD: And I think you said during your direct testimony that heat is one of the environmental insults which can actually cause the DNA to degrade.

DR. COTTON: Yes. I mean, given you're taking them into a room, you could subject them to however high you can crank a thermostat up I guess. But you could make them all uniform with a particular temperature in a room.

MR. NEUFELD: And you could also make them uniform with respect to a certain humidity in that room as well if you could control the amount of humidity in the room, couldn't you?

DR. COTTON: I suppose you could design a room to do that, but it--I don't know. Our air conditioning doesn't control the humidity too well. So I think you'd have to have a special design--you'd have to have a special piece of equipment to do that.

MR. NEUFELD: Dr. Cotton--

MR. CLARKE: I'm sorry.

MR. NEUFELD: I'm sorry.

MR. CLARKE: Can the witness finish her answer?

THE COURT: Yes, please.

DR. COTTON: You'd have to have a special piece of equipment, that is sort of like a cold room. A cold room is just like a huge refrigerator.

MR. NEUFELD: And, Dr. Cotton, is there a certain kind of light that can also affect the degradation of DNA?

DR. COTTON: Yes.

MR. NEUFELD: What kind of light is that?

DR. COTTON: Ultraviolet light.

MR. NEUFELD: And could you also then subject the various control specimens that you're going to send out for DNA testing to ultraviolet light at the same time? That's something that could be done, couldn't it?

DR. COTTON: You could, but I think, again, you'd have to have a special--you'd have to design a special piece of equipment or special room in which to do that kind of thing.

MR. NEUFELD: And would you agree, Dr. Cotton, that--well--I'm sorry. When you receive casework samples, you do not know the answer in advance, do you?

DR. COTTON: No.

MR. NEUFELD: The casework samples that come to Cellmark come from some kind of an external agency such as the Los Angeles Police Department; isn't that right?

DR. COTTON: That's right.

MR. NEUFELD: Do you agree that external proficiency tests where you don't know you're being tested on samples are the most realistic kind of proficiency tests to measure laboratory error rate?

DR. COTTON: I think both tests are equally well to do that.

MR. NEUFELD: Well, I'm asking you about which is more realistic. You agreed a moment ago, Dr. Cotton, that it's certainly more realistic when a laboratory doesn't know it's being tested than when it knows it's being tested. Would you agree with that?

MR. CLARKE: Objection. Asked and answered.

THE COURT: Overruled.

DR. COTTON: It's--it's much more--I mean, on a case, you don't know that you--wait. You don't know the answer. If you receive a proficiency test that looks like a case, then of course, that's a lot more like a case than a proficiency test that you know it's a test.

MR. NEUFELD: Okay. And similarly, Dr. Cotton, in an actual case, you said a moment ago the samples don't come from within Cellmark, they come from an external agency; isn't that correct?

DR. COTTON: That's right.

MR. NEUFELD: So likewise, Dr. Cotton, in a proficiency test where the samples are coming from an external agency, that too would be a more realistic kind of proficiency test to measure laboratory error rate than one in which the samples come from within the laboratory?

DR. COTTON: It is a more realistic type of test when compared to a regular case. But I don't think that it's any better or any worse for looking at laboratory errors than an open proficiency test.

MR. NEUFELD: Dr. Cotton, are you familiar with that portion of the National Academy of Science report, "DNA Technology in Forensic Science" entitled "Laboratory Error Rates"?

DR. COTTON: I've certainly read it. I haven't read it recently.

MR. NEUFELD: Would you please take a look at pages 88 and 89?

DR. COTTON: Yes.

MR. CLARKE: Objection. Hearsay at this point.

THE COURT: Overruled. She can look at it.

(The witness complies.)

THE COURT: And while she's doing that, let me see counsel without the reporter, please.

(A conference was held at the bench, not reported.)

(The following proceedings were held in open court:)

THE COURT: Mr. Neufeld.

MR. NEUFELD: Have you finished?

DR. COTTON: Yeah, I am.

MR. NEUFELD: Okay. Dr. Cotton, you've given an opinion about usability of different types of--usefulness--excuse me--of different types of proficiency tests. Have you considered, in reaching your own opinions on this subject, the National Academy of Science recommendations with respect to measuring laboratory error rate through proficiency testing?

DR. COTTON: No, I haven't.

MR. NEUFELD: You've never considered that at all?

DR. COTTON: I don't agree with their recommendations.

MR. NEUFELD: Well, I'm not asking you whether you agree with the National Academy of Science's recommendations, Dr. Cotton. What I'm asking you is whether or not these recommendations have been considered by you seriously before you arrived at your own opinions.

DR. COTTON: I read them, I thought about them and I have a different opinion than they do about the--whether or not what they're asking for is realistic and possible.

MR. NEUFELD: In reaching your own opinions on the subject of the utility of external blind proficiency testing, have you thus at least relied in part on what's contained in the NRC report, albeit you have disagreed or rejected, if you will, their recommendations?

MR. CLARKE: Objection. Unintelligible.

THE COURT: Overruled.

DR. COTTON: Well, because I don't agree with it, I would say I haven't relied on it. I haven't used this in directing our laboratory to do the types of proficiency testing that we do.

MR. NEUFELD: Well, let me try and understand what you're saying, Dr. Cotton. Are you saying that it's your position that you only rely on those portions of the NRC report that you agree with?

DR. COTTON: What I'm say--I don't know how to say it more clearly. There are portions of this report that I agree with. There are a substantial number of portions of the report that I do not agree with, that I think either are not well considered or are simply wrong.

MR. NEUFELD: So is it fair for me to say, Dr. Cotton, that you have only relied on those portions of the NRC report in arriving at your own opinions that you personally agree with?

MR. CLARKE: Objection. Assumes facts not in evidence.

THE COURT: Overruled.

MR. CLARKE: Actually misstates the evidence.

THE COURT: Overruled.

DR. COTTON: At the point that this report came out, I already had a substantial amount of experience at Cellmark and I had a much larger amount of experience working with DNA in general. I do not need this report to make my opinions.

MR. NEUFELD: I'm sorry, Dr. Cotton, but again, my question is, is it your position that you've only relied then for your own opinions on those portions of the NRC report that you agree with?

DR. COTTON: It's--what I'm saying is, I haven't relied on the report. If it happens that I agree with some things and disagree with some things, those things did not necessarily or have not necessarily played a role in my opinions about DNA typing and how it should be conducted.

MR. NEUFELD: Is it your professional and personal approach to the NRC report that if you don't agree with some of their recommendations, that you will not even take them into consideration in reaching your own conclusions?

MR. CLARKE: Objection. Argumentative.

THE COURT: Sustained. Let's move on.

MR. NEUFELD: Well, do you think, Dr. Cotton, that it is appropriate for scientists to give consideration to the opinions of other scientists with whom you disagree?

MR. CLARKE: Objection. Irrelevant.

THE COURT: Overruled.

DR. COTTON: What do you mean, give consid--you can certainly think about them. I mean, the whole point, if somebody says, "I don't agree with you," is to think about it and formulate what your opinion is and see if it's the same or different and think about what somebody said. But if you have thought about it and you don't agree with it, then that's the situation.

MR. NEUFELD: And as to these various portions of the NRC report that you--that you disagree with, have you given serious thought to what the authors' recommendations are and why they've articulated them?

MR. CLARKE: Objection. Asked and answered.

THE COURT: We've asked this question now three times.

MR. NEUFELD: Dr. Cotton, are you familiar with any of the scien--any scientific literature concerning the use of external blind proficiency tests on laboratories doing PCR testing in clinical medicine?

MR. CLARKE: Objection. Calls for hearsay.

THE COURT: Overruled.

DR. COTTON: No, I'm not.

MR. NEUFELD: Well, in your opinion, as an expert, Dr. Cotton, do you believe it would be important for someone in your laboratory to keep track of the rate of false positives for PCR testing in clinical medicine?

DR. COTTON: I don't--I don't actually have a really good answer for that. I'm not familiar with procedures in clinical medicine. We are familiar with procedures in forensic science. They very well may be different. Whether or not our quality assurance manager is familiar with clinical procedures, I can't tell you. I just don't know.

MR. NEUFELD: And some people, Dr. Cotton, say that a DNA test can only give you the right result or no result.

MR. CLARKE: Oh, excuse me. Objection. Hearsay, assumes facts not in evidence.

THE COURT: Sustained. Rephrase the question.

MR. NEUFELD: Have you ever heard that expression, Dr. Cotton, that a DNA test can only give you the right result or the wrong result?

MR. CLARKE: Objection. Vague.

MR. NEUFELD: I'm sorry. Can either give you the right result or no result. Have you ever heard that expression?

DR. COTTON: I don't know.

MR. NEUFELD: Well--

DR. COTTON: I mean, I'm hearing it now. I hear you saying it. Whether or not I've ever heard it before, I don't remember.

MR. NEUFELD: Well, now that you've heard it, Dr. Cotton, would you agree that that's not a correct statement?

MR. CLARKE: Well, objection. Irrelevant.

THE COURT: Overruled.

DR. COTTON: Would a DNA test either give you the right result or no result?

MR. NEUFELD: Right.

DR. COTTON: That's much too black and white of a statement.

MR. NEUFELD: And one of the reasons that it's much too black and white a statement, Dr. Cotton, is, I believe as you've already testified, a DNA test could give you a false positive?

DR. COTTON: It's possible that it could. It could also give you an inconclusive, could also give you a false negative. There's a lot of in between there.

MR. NEUFELD: And if the DNA test gives you a false positive, it means that you are getting a match between two samples that in fact come from different people; isn't that right?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree, Dr. Cotton, that if one laboratory made many errors in external blind proficiency testing and another laboratory made few, that the laboratory which made many more is more likely to make a mistake in a given case?

MR. CLARKE: Objection. Irrelevant, assumes facts not in evidence, beyond the scope.

THE COURT: Overruled.

DR. COTTON: Given the generalization that you just stated, yes, I guess I would agree with that.

MR. NEUFELD: And you agree, Dr. Cotton, that interpretation of DNA typing results depends not only on the frequency of a DNA pattern, but on laboratory error rates as well?

DR. COTTON: No, I don't.

MR. NEUFELD: Well, do you agree, Dr. Cotton, that the strength of a DNA evidence depends not only on the frequency of the pattern, but on laboratory error rates as well?

MR. CLARKE: Objection. Argumentative.

THE COURT: Overruled.

DR. COTTON: No, I don't.

MR. NEUFELD: Well, Dr. Cotton, did you read that portion of the National Academy of Science report which discusses the role of laboratory error rates in assessing the weight of DNA evidence?

DR. COTTON: That--that's part of the couple pages you just pointed out to me; is it not?

MR. NEUFELD: Yes.

DR. COTTON: Yes, I read it.

MR. NEUFELD: And have you thought about those couple of pages prior to today as well?

DR. COTTON: Yes.

MR. NEUFELD: And have you considered seriously the points that the authors of the NRC report are making with regard to the importance of assessing the laboratory's error rate?

MR. CLARKE: Objection, your Honor. I think this has been asked and answered.

THE COURT: Overruled. It's different question.

DR. COTTON: Yes, I thought about it.

MR. NEUFELD: But you simply disagree with the National Academy of Science recommendations on this particular point; is that right?

MR. CLARKE: Objection. Calls for hearsay.

THE COURT: Sustained.

MR. CLARKE: Your Honor, may the jury--

MR. NEUFELD: Dr. Cotton, once again, are you saying that the reason you don't rely on this portion of the report is simply because you disagree with it?

MR. CLARKE: Objection.

DR. COTTON: No, I'm not.

MR. CLARKE: Asked and answered. Also irrelevant.

THE COURT: Sustained.

MR. NEUFELD: Well, would you agree, Dr. Cotton, that the measure of a laboratory's error rate is a separate and independent issue from the measurement of the frequency of a DNA profile?

DR. COTTON: Of course.

MR. CLARKE: Objection. I'm sorry. I'll withdraw it.

MR. NEUFELD: Sorry. I couldn't get your answer.

THE COURT: She said, "Of course."

DR. COTTON: Of course it is.

MR. NEUFELD: Well, do you agree with that portion of the NRC report which explicitly states--

MR. CLARKE: Well, excuse me, your Honor. Objection. Hearsay.

THE COURT: Sustained.

MR. NEUFELD: I'm not going to quote the portion.

THE COURT: It's still hearsay, counsel. I think--let's move on.

MR. NEUFELD: Dr. Cotton, do you agree with the sentiments of the NRC report--

THE COURT: Sustained.

MR. CLARKE: Objection. Irrelevant.

THE COURT: Wait. Wait. Sustained. Move on.

MR. NEUFELD: Well, would you agree, Dr. Cotton, that if someone was falsely implicated by an RFLP DNA test, it would much more likely be due to sample handling error or cross-contamination rather than due to coincidental match between people with the same RFLP profile?

DR. COTTON: If--yes. Sure.

MR. NEUFELD: Now, your laboratory has had at least a couple of instances where you had false matches due to sample handling error and cross-contamination; isn't that correct?

DR. COTTON: Yes. Two.

MR. CLARKE: Objection. Compound.

THE COURT: Overruled.

DR. COTTON: Two.

MR. NEUFELD: And using the definition of the four types of proficiency tests that I have given you in that diagram whose number escapes me--

THE COURT: 1153.

MR. NEUFELD: Thank you--on 1153, in 1993, how many of your proficiency tests fall into the category of external blind proficiency tests?

DR. COTTON: In 1993, we have very few in external because we--it's a complicated answer.

MR. NEUFELD: Well, do you prepare a chart where you list the proficiency tests that you run in a given year? Do you have a chart like that?

DR. COTTON: Yes, we do.

MR. NEUFELD: And on that chart, do you actually identify which of the proficiency tests are internal versus which ones are external?

DR. COTTON: Yes, we do.

MR. NEUFELD: And on that chart, do you also differentiate between those that are blind and those that are open?

DR. COTTON: Yes.

MR. NEUFELD: And would you agree by the way, Dr. Cotton, that at least for forensic cases, there's a difference between doing a profi