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.)

(Pages 29429 through 29575, volume 154a, transcribed and sealed under separate cover.)

(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. Defendant is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck, People represented by Miss Clark, Mr. Darden, Mr. Harmon. The jury is not present. All right. Mr. Scheck, you are about to begin your cross-examination of Mr. Yamauchi. And we had had a discussion I believe it was yesterday where we discussed the timing of the 356 issue, and it was my recollection that I indicated I was--I thought this was at this point premature since it was not going--this is not the witness to introduce any statement to the police officers, Detectives Vannatter and Lange, and you seem to take a contrary opinion as to how that might come in through this witness.

MR. SCHECK: Yes, your Honor. I--there--it--it would be our preference to resolve this issue before I get into the cross-examination, particularly since I think in some of the early stages of the cross-examination, I'm going to go into the events of June 14th and 15th. And as the Court recalls, Mr. Harmon went into some details about what Mr. Fung told Mr. Yamauchi before the testing began and indicates in his notes details such as Mr. Simpson had a cut on his left hand, he explained the evidence to him. His notes even indicate that this information came, quote, unquote, via robbery-homicide. Detective Lange was in the SID laboratory that morning discussing matters with Mr. Matheson, Mr. Yamauchi and Mr. Fung, and there are many areas there that have relevance to what evidence items were processed in what order, what should have been known, what was known that would call upon my right to confront them with doors that have already been opened just in terms of the hearsay with details of statements that Mr. Simpson made to the police before this analysis began. What the analysts knew, what the police officers knew and when they knew it is relevant in terms of what they tested, when they tested it and how they tested it.

THE COURT: And when they tested it.

MR. SCHECK: I'm sorry?

THE COURT: And when.

MR. SCHECK: And when. When am I going to get to this?

THE COURT: No. And when they tested it.

MR. SCHECK: And when they tested it. Yes. Thank you. So--and then of course, just even getting into this whole statement that Mr. Yamauchi made and what his state of mind was and what the state--what the express state of minds of other people in the lab were at the time of this analysis I think is all relevant and fair game given the nature of the direct examination.

(Discussion held off the record between Defense counsel.)

MR. SCHECK: Oh, your Honor, it's been pointed out to me that Mr. Yamauchi is here and--

THE COURT: All right. Mr. Yamauchi, why don't you step outside, please.

(The witness complies.)

THE COURT: All right. Mr. Scheck, so I understand what it is you're urging me to do here, you indicate, one, you want to go into Mr. Yamauchi's notations in his lab notes regarding a cut on Mr. Simpson's hand, and what else?

MR. SCHECK: Well, that's--I was only pointing that out as one detail.

THE COURT: And what else?

MR. SCHECK: And what else? What he was told by Mr. Fung, by Mr. Matheson, by Detective Lange that morning with respect to this evidence, when it was collected, how it was collected and whether it should be tested, which is what they went into. There's technical issues in terms of separating samples of high and low DNA content, which samples of blood they had expectations, they knew were definitely Mr. Simpson's and which ones were ostensibly not known. All those issues I think are relevant here. And I think we even broached this at one point earlier when I attempted to get into this issue--I'm trying to remember--with one of the other earlier witnesses in terms of what they--item no. 12 that was collected at the house and those swatches, that they were collected at the end of the day, that they would be--clearly, they would have high DNA content and what people knew about that and what had been said about that, whether or not that was Mr. Simpson's blood. And we had a sidebar and Mr. Harmon actually indicated--I indicated to you--if you recall, I approached the bench and I said, "I want to ask some questions now that would arguably be based upon statements that Mr. Simpson made to the police where they would have the implication of indicating that that would be revealed." If you recall, I approached the bench because I knew that that might be a potential problem given the way I asked the question.

And you--at that time, Mr. Harmon actually said, "Well, we'll get into this with Mr. Yamauchi, but not through this witness." I think it was at one point during the cross-examination of Mr. Sims. And we did in fact get into it with Mr. Yamauchi, and I think it is abundantly clear and I'm sure Mr. Harmon will confirm at the point that he began to get into this hearsay concerning what Dennis Fung told Mr. Yamauchi about this investigation, initially I made a hearsay objection. Then the Court instructed me to talk with Mr. Harmon because I indicated maybe I wouldn't have objections to some of these statements coming in. And we conferred and Mr. Harmon showed me what he was intending to elicit from Mr. Yamauchi and he showed me this statement about air-tight alibi, and I'm sure he won't deny it, and I took one look at that and I said, "Well, go right ahead," because I knew fair well where they were going and I thought it was going to open the door, and I knew that if they went down that road, that I would be able to go down that road too. And that's exactly what's occurred. So it seems to me that I have all these relevant avenues that I can pursue. And then let's say that--I believe they've opened the door and I'm not the one that's going to argue that issue. But if there's some kind of question as to what they've opened and what they haven't opened or how far one can go, I've got to know that before I start cross-examining this witness in terms of how I probe his state of mind given what they've elicited. So this seems to me an issue that has to be resolved before we cross-examine this witness.

THE COURT: All right. Miss Clark.

MS. CLARK: Your Honor, are we addressing only the matter as to whether or not we're going to address this now? Is that--are we confined to that?

THE COURT: No. No. This is--this is the argument--this is the whole enchilada.

MS. CLARK: Thank you. First of all, with respect to the matters that Mr. Scheck would like to get into, this reminds me of the staple holes argument. What we have is a simple little reference in Collin's work sheet saying Dennis Fung told him that the Defendant had a cut on his left hand. From this, Mr. Scheck amplifies, greater than any PCR amplification I've ever heard about, detailed conversations between Dennis Fung and Mr. Yamauchi, detailed conversations between Greg Matheson and Phil Vannatter and Mr. Yamauchi, detailed conversations between Philip Vannatter and Mr. Yamauchi, none of which ever occurred. This is the active and very fertile imagination of Mr. Scheck. We have one simple note. There will not be a showing that there were these detailed conversations. It simply didn't happen. Now--so with respect to all of these questions that Mr. Scheck proposes to ask, they would be inappropriate and they will be met with no, no, no, no and no. And that's fine. But once again, what we have here is the author of a staple holes argument and I think that we ought not to ignore it. With respect to the 356--

THE COURT: No. Let me ask you a quick question about the cut issue.

MS. CLARK: Yes, your Honor.

THE COURT: Do you think they're entitled to ask that question?

MS. CLARK: About whether or not they were informed the Defendant had a cut on his hand?

THE COURT: Yes, since that appears to be in evidence already.

MS. CLARK: Right. And I don't see anything objectionable with that. I'm not even saying it's objectionable for counsel to inquire as to what the state of this witness' knowledge was. I'm only commenting that his answers--his questions will be met with, "I don't know, no, no and no, that never occurred," because this witness did not have all this detailed information. And that does dovetail into the 356. So I'm not saying that those questions are objectionable. He wants to inquire into the witness' state of mind, and we have certainly opened the door to that with respect to what his bias is and what his state of knowledge is, and I think that's relevant.

THE COURT: All right. Okay.

MS. CLARK: So no problem with that. I'm simply commenting on the state of what the evidence is and will be, and that's another matter. With respect to 356, the arguments postured by counsel in their moving papers totally mischaracterizes the witness' statement. And this is the fundamental flaw in all of their arguments. Even the case authority that counsel cites in their moving papers is totally in apposite and actually refutes their very argument. For 356 to apply--and I've done some extensive research on this for previous cases as well as the instant one, and the Court probably knows about that. But it is important to realize that the gravamen of 356 is to make all of it come into context. It's important that you balance--when one person offers part of a statement, that that part of a statement must be balanced with the rest of the statement in order to give it meaning so that it's not misleading. And that is the gravamen of 356, which is why you see it applied in a situation where the Defense wants to proffer--and we cited that case I believe in our moving papers--the Defense proffers one portion of a Defendant's statement, for example, where he says in a deuce case, "I stopped at the red light," but then goes on to say, "But I ran--I ran three red lights before that," when it comes to probable cause to stop him. Well, wait a minute. You can't just introduce that part of the statement where it seems to indicate that there's no probable when the previous part of the statement indicated there was plenty of it. And that's the bottom line of 356. It's really a logical common sense sort of thing. In this case, what we have--and it's very interesting because counsel wants to posture that somehow the witness' conclusion about whether or not the Defendant could have done it impact on his credibility is ludicrous. Number one, the witness could not have known of his statement because that had not been publicly disseminated. And we will inquire--and we actually should I think in a 402 outside the presence of the jury or in their presence. I'd like to frankly ask leave of the Court to reopen direct to elicit the fact that his information came solely from the news program period. Outside the presence of the jury, we can make it clear for the record that he had no knowledge of any statement given or taken by the police from the Defendant. So what he's premising that statement on is the fact that the news published that Mr. Simpson was contacted by the police in Chicago. From that, he drew the conclusion, okay, he couldn't have done it. Well, I'm sure there's millions of Americans who agreed with him and I think even Mr. Weitzman was under that impression at the time because no one knew what he really said. So the conclusions that were drawn were drawn based on the fact that it was publicized that he was contacted in Chicago. That doesn't implicate any statement. The witness himself made no mention or reference to any statement by the Defendant nor could he because he didn't know about any statement made by the Defendant. So we have Defense posturing a 356 issue in an impossible situation where not only is he not making reference to part of his statement, but he never knew a statement existed. So how could we possibly have a 356? Moreover, as the Court is now aware--and I know the Court did not know this because the Court had not read the statement at the time that this issue arose in Court--the statement itself never states that he had an air-tight alibi or any mention of alibi at all. There was no discussion of alibi per se in the Defendant's statement. So by definition, the witness could not be referring to any statement made by the Defense--by the Defendant because such a statement was never made by the Defendant at all. So I mean, we have an impossibility on an impossibility on an impossibility. None of this ever occurred. The witness couldn't have been referring to that statement, never having known of it. And even if he had, the statement would not include--did not include that. So it still couldn't be referenced to that statement. You see how absurd this gets now that the Court is aware of this statement, which it wasn't I know before. Now, any possible damage that the Defense claims to have suffered by the fact that there was a reference to the witness' conclusion about the Defendant's having an air-tight alibi--I mean this makes me laugh just saying it because it is so ridiculous. But the witness' reference to his belief in the air-tight alibi of the Defendant, if there can be deemed any possible damage to the Defendant from that, can simply be cured by asking the witness what he based his belief on. And the witness will state--I will tell the Court because I know, the witness will state he based it on his belief because--that the news program aired that he was contacted in Chicago. His conclusion. "No other information?" "No, ma'am. No other information." That's it. So there is no--there's nothing that touches the Defendant in this witness' testimony, nothing that it even begins to draw in any reference to a statement or knowledge of a statement. And it should also be brought out I think the Defense--and it's a very disingenuous argument really. The Defense postures that the Defendant is harmed or damaged by the witness' reference, which even if you were to accept the illogical and absurd characterization of the witness' testimony in that way, you would know that there is no damage. It has already been brought out by witnesses that the Defendant told Allan Park he was asleep, that he had just gotten out of the shower, and all of the testimony thus far has indicated everything consistent with that. That is--and there's been no claim by anyone at any time that the Defendant ever said anything to the contrary. So we don't really--there is no real harm to the Defendant at all. This is simply an excuse, it's a ruse by the Defense to put in a statement that we cannot cross-examine, to let the Defendant avoid ever taking the witness stand so that he cannot be cross-examined. We welcome the airing of this statement. We invite the airing of this statement when the Defendant takes the witness stand and we can question him fully about the statement. We have a lot of questions we want to pose to the Defendant about this statement and we eagerly await that opportunity. But the Defense would like to preclude us from the ability to cross-examine. And so they would like to force us to present this statement that we cannot cross-examine. We will impeach it, but we cannot cross-examine it thoroughly the way we would like to do and we should be able to do when Mr. Simpson takes the witness stand. So this is nothing more than a pretext to avoid the Defendant taking the witness stand. There is no door opened by this witness' statement. May I have a moment, your Honor?

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

MS. CLARK: In the absence of any showing that--I mean Mr. Yamauchi's statement stands as it stands before the jury; and that is that he watched a news program, he heard that the Defendant was in Chicago and believed he had an air-tight alibi and that Mr. Yamauchi knew of no statement. I think that if the Court has any concern in that regard, we should have a 402 outside the presence of the jury. But the statement of the witness does not in any way implicate the statement of the Defendant because he did not know that one existed.

THE COURT: Do you think your factual record is adequate to support that conclusion at this point? And--because the term "Alibi" has a certain connotation to it within the criminal context.

MS. CLARK: I understand. This witness was certainly not I think intending to convey that. He's a layperson for all intents and purposes, but--

THE COURT: The problem is that he is a member or an employee of the city of Los Angeles assigned to SID, which is within the Los Angeles Police Department. It's not beyond probability that he might have been privy to a detective's conversation regarding any statements made by the Defendant.

MS. CLARK: I agree. That that's--you're absolutely right.

THE COURT: So that impression may be there.

MS. CLARK: And I think that that--the impression needs to be dispelled and--and that's right, your Honor. You're absolutely right.

THE COURT: The concern--excuse me. Forgive me for interrupting.

MS. CLARK: Sure.

THE COURT: But the other concern I have is that I don't know anything factually. As I indicated to you, this statement by Mr. Simpson has never come before the Court. There's been no litigation that's been necessary as far as the statement is concerned. So this Court has no idea when and where, what was said other than now I have the transcript, and I don't know the circumstances as to whether or not it's been publicly disseminated, whether or not the transcript's been available. I mean, none of that has come before the Court. So there's nothing in the record that I can make any factual assumptions or conclusions from.

MS. CLARK: We can certainly present that factually to the Court in order to complete the record. The statement made by the Defendant was not publicly aired until--

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

MS. CLARK: I mean, the contents of the statement--I'm sorry. I'm conferring with counsel now. But I think the contents of the statement itself did not come out until a tabloid published it a couple months ago. The fact that a statement was taken was made public--

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

MS. CLARK: In any case, I can certainly represent this to the Court with great certainty. That as of the date of 6-14, June 14th, when Mr. Yamauchi was doing the testing, there was no public dissemination of the fact that a statement was taken. There was--it was known that there was a visit to Parker Center and that's all. The fact that a statement was taken or the contents of that statement did not come out for quite some time--until quite some time after that. So--and the only thing relevant here is Mr. Yamauchi's state of mind at the time of the testing on June 14th and 15th. With respect to what he might have known or learned from Detective Vannatter, we can complete the record by indicating outside the presence of the jury that he did not know any such thing. But I would urge the Court to consider this. At this point in time, this witness has not indicated any special knowledge to the jury, any insider information to the jury or any privy con--any conversations he was privy to that would allow him to know things the public did not know. In fact, very distinctly he said in front of the jury, "I saw it on TV." So what he had was what the public had and he drew his conclusion from that as I'm sure many members of the public did until they learned all of the facts or more of the facts. So at this point in time, what the jury knows is that he watched a television program. It could be made clearer and I'm asking leave of the Court because the Court is correct--the Court makes a very good point, that it could be made clearer to the jury, and which is why I would like to reopen direct, to simply ask him what he based that conclusion on. And that answer will be, "The news program I saw." "You had no conversations with detectives. You had no further," et cetera, et cetera. And I think that can be made crystal clear and I'd like the opportunity to do that. But in conclusion, your Honor, at this point, until we hear from the Defense, I think that 356 is totally inapplicable. Even the cases they cite are not support for their proposition.

THE COURT: All right. Mr. Scheck.

MR. SCHECK: Mr. Cochran.

THE COURT: I thought we had a one-lawyer rule here.

MR. SCHECK: No, your Honor.

MR. COCHRAN: He was addressing the other thing, not the 356. Different questions. He told you during the time that he would not be arguing that, your Honor. Thank you, your Honor. Good morning, your Honor.

THE COURT: Good morning, Mr. Cochran.

MR. COCHRAN: Your Honor, in this matter, if the Court pleases, with regard to the 356 argument, I would point out--and I would like to go back just briefly and again remind the Court how we got to this particular point. This isn't anything the Defense did. This was a calculated move on the part of the Prosecution, your Honor. In fact, Mr. Harmon had it in his notes which Mr. Scheck saw, "Air-tight alibi." This was planned and orchestrated as is all the testimony with their witnesses, and he referred to his notes and he did this. The Court will recall there were a number of objections as we went along, and the Court felt that what would be the answer--a representation was made at sidebar as to what the answer would be, and we got into this. And let me just quote for the Court just briefly what the testimony was. Let's talk about what the testimony was before this jury. "Like I was saying"--this is Mr. Yamauchi--"I heard on the news, well, yeah, he's got an air-tight alibi. He's in Chicago and, you know, that--and it's his ex-wife and this and that and oh--and I go, oh, well, he's probably not related to the scene." Now, this is after the objections and after carefully scripted, the testimony, that he gave this particular testimony, your Honor. And what we've contended and strongly contend, your Honor: "The presentation of this kind of detached declaration, as we spell out, permits the admissions of certainly those portions of the Defendant's statement to the police on the same subject of his alibi--" and you hit upon it. The key word is "Alibi." "--which are necessary to make this detached declaration understood pursuant to California code--evidence code section 356." And the Court knows what that section goes on, and we talk about that.

"We think this testimony clearly then opens the door to that part of the testimony to explain the fact remains that we have these words, an `air-tight alibi' that's attributed to the Defendant, he's got an air-tight alibi." And in our brief, we spell out to the Court that: "The jury is now left with this misleading interpretation." And there are constitutional issues here as we point out also, your Honor. Is this statement--by them doing this, are they trying to force Mr. Simpson to take the stand in contravention to his fifth amendment rights? Miss Clark says that, "We welcome this opportunity." Well, they may very well get that opportunity, but they can't force it. It's because he wants to get up here, if he does, and tell the world that he's innocent. That's the test. They can't force it on these circumstances. And this jury, through some calculation, cannot be left with this impression. And that's why we had the colloquy at the bench. And when Mr. Scheck said to your Honor, "No, we don't want you just to strike this. They have opened the door," and the Court said, "I basically agree. They had opened the door at that point." So the question is, how do we then remedy this? Your Honor, throughout this case, we have heard that this is the search for truth. And you remind us of that and both sides have said this. If we want to get at the truth, then let's air this statement, which we have a right to do we think under 356. And I would cite to the Court again to our brief where we talk about this. "An important purpose of the principles underlying section 356, your Honor, and other related provisions of the California evidence code deal with to prevent the Prosecution from unfairly and unconstitutionally exploiting a half truthful, partial statement taken out of context by improperly and unconstitutionally shifting the burden of proof onto the Defendant by pressuring him or her to take the stand, to come forward with evidence in order to explain a statement taken out of context." And that's what we have. And you posed the question about the record. They've created this problem, your Honor. They've opened the door. They can't then be able to just try to straighten it all out at this point. They've opened this. And there is a statement. And I would like to point out to the Court something else about this. Collin Yamauchi is here as an expert. Otherwise, he couldn't watch television, he couldn't sit and do all these things. Now they want to make him, well, he's kind of a lay witness. It's funny how witnesses keep changing. He is an expert witness. He's employed by the Los Angeles Police Department. He's employed in the Special Investigations Division.

And further, your Honor, you'll recall from the testimony of Detective Lange that with regard to the events of 6-13, in my memory, is this on the subject. Everybody knew that Mr. Simpson went downtown to give a statement because the press followed him. The Court will recall that Howard Weitzman--and you've seen those tapes. They got into cars, they went downtown. Mr. Simpson was there for two or three hours according to the officers if you recall. Everybody knew there was a statement. But further, your Honor--and remember the testimony of Detective Lange. The very next morning--and you see his notes--there was a meeting at 7:00 o'clock in the morning. Remember when Lange brought those tennis shoes back over there? And Lange's notes says he conferred with criminalist Matheson, Wong--you remember--there was no Wong because he got it wrong, but we talked about that, you and I--and Yamauchi re the evidence. And I presume that meant Fung at that time. And then later on, there was a further conversation with Fung and Matheson where they talked about all of this. Lange talked to them. And Yamauchi's testimony will be that.

So he's an agent. They knew he knew what had taken place. It wasn't like he was listening to any news. This is an inside person. They had Mr. Simpson's statement and this whole thing about his alleged cut finger. So this was calculated, your Honor. It's part of their strategy. And this is directly why we have 356 of the evidence code. And there are fortunately some safeguards to protect the rights of both parties in this case left, in this state left. And so it seems to me that if you consider all these things, this surely violates Mr. Simpson's rights under both the fifth amendment of the U.S. Constitution and its California cognate. There's no less adverse comments by a Prosecutor about a Defendant's refusal to take the stand like in Griffen. I mean, they--she says--Miss Clark gets up here and says, "We're welcoming." They're trying to force him to take the stand. That's exactly the issue when Mr. Harmon cleverly calculates this air-tight alibi thing. And you asked him, "What's his answer going to be?" And the answer went further than what we were represented at sidebar. And you'll recall that so much so, you felt the need to strike it at the point. But we said, "Wait a minute. They've done this now. Our jury's sitting here listening to that." So they can't now come in and say, "Oh, gee, you know, the Defense complains about this." What we've got to do now, your Honor, is put this in context and look and see how we got to this point. And we need not be naive about this. Everybody knew Mr. Simpson went down to Parker Center. Everybody knew about this statement. And certainly, your Honor, you said you didn't know about the content. That statement is--part of that statement has been leaked from the very beginning and more recently, in the last several months, a tabloid show has had the entire statement. The entire tape is out there. But certainly, the police knew about that statement because they were there. Lange and Vannatter were there. They knew totally about that statement by the time they met with Collin Yamauchi at 7:00 o'clock that morning when they were making decisions about what to do, your Honor. That's--you think they didn't talk about it? Lange's notes say that. And the Court will recall when I questioned Lange about it, he said, "Well, I thought Mr. Simpson was less than forthcoming." Remember the use of those words? They talked about it right at that very morning when he brought those tennis shoes over there and Yamauchi then had his marching orders as to which evidence to go and look at. And so when they make this calculated decision under 356--and I would end on this note. 356 seeks to preserve fair play, your Honor, and misleading impressions which have been created by the Prosecution. When they use those words, "He's got an air-tight alibi," without further explanation, the Defendant's at a decided disadvantage, and it's unfair seeing that it's nothing that we did that put him in this position. So we have to correct that. How do we correct that? Through the appropriate admission of those parts of his statement which clearly they were referring to. This isn't like somebody who just off the street who talks about heard something from the press. This is a member of the Prosecution team, your Honor. And that's what we have here. And so we do cite cases which we do think are illustrative of the Court in that regard. So as I conclude, I think that fundamental principals of fair play, your Honor, require you, as you've indicated, to correct this situation. The only way we correct the situation is by having the statement.

And certainly if the Prosecution's so worried about this, the admission of this statement doesn't mean Mr. Simpson is not going to testify. It has nothing to do with that. But we certainly can't be forced into a position. They're always worried about what we're going to do, your Honor. They should be worrying about what they did to create this situation. And so I think that's the situation. And I would respectfully urge the Court, as you've indicated, they have opened this door, they've opened this door very wide, and we have a--we have an opportunity it seems to me only to correct this by the admission of the applicable sections of the statement of Mr. Simpson. It's been now widely, widely disseminated. And so I would ask the Court to do that. I think that's the purpose of 356. If the Court has any questions, I would be glad to try to answer them.

THE COURT: What's your impression of our factual record?

MR. COCHRAN: Well, I think that the factual record, as I--is certainly not a fair one to the Defendant. We're left with a police witness saying, "I think he's got an air-tight alibi." And he says, "I hear this on the news," or wherever. He hears this on the news, but he also talks to Lange, he talks to Matheson, he talks to everybody. So I mean the factual record needs to be cleared up. And the only way that can be cleared up is by admitting the appropriate portions of that statement. Otherwise, Judge, what you do is you force it on us. We're left with--even if he comes in and says, "Well, I only listened to the news," we're still left over here with this jury thinking, well, gee, Mr. Simpson said he was in Chicago at the time of these killings. That's not what he said at all. That would be totally, totally unfair and violates his fifth amendment rights, violates the constitution and it flies in the face of the whole concept of Griffen if the Prosecution is allowed to comment upon a Defendant's failure or lack to testify. And so I think clearly, your Honor, the record is clear that it--the record is unclear and needs to be made clear, and that's what 356 addresses; that when you have this unfair situation, you have to correct it.

THE COURT: All right. Mr. Cochran, assume arguendo that I find the basis of Mr. Yamauchi's comments not to have been Mr. Simpson's statement. Do you think a limiting instruction that his last comment regarding air-tight alibi being in Chicago is limited to--limited in its use only to being relevant only to Yamauchi's state of mind?

MR. COCHRAN: I don't think so, your Honor. I don't think so at all. I think that gives them--your Honor, they created this situation, and I don't think that's fair to the Defendant, to give a limiting instruction for something they shouldn't have done in the first place. I think they opened the door and I think where there is this statement, your Honor, where there is this statement, we should have a right to introduce certainly the applicable portions of the statement. You've now seen the statement, and there are certain portions that I think are very relevant. Because otherwise, the jury will still be left with this statement. There's been a day and a half now since he's made this dramatic statement, "Well, I thought he had this air-tight alibi." And look at what you were told, your Honor. You were told that the reason why Mr. Harmon, who is a seasoned, experienced and wiley Prosecutor as we well know, we've seen him in action, and he of the discourse and funny words and all that sort of thing, this man went about--he told you, "We're doing this to combat examiner bias." And then he asked the witness who hardly knew what examiner bias was. So, I mean, you know--basically, this was part of a plan, and their plan is to try to force Mr. Simpson to testify. That's unfair. They can't shift that burden. And so we don't let them off the hook that easily, your Honor, by saying, well, let's just cure this. Well, your Honor was willing to strike the very thing. We said, look, that doesn't cure it, to go strike it from the jurors' minds. They heard this. It was calculated. Sometimes people have to pay for their course of conduct, your Honor, and they have to pay at this point. And the payment is, if they're so worried about--if this is a search for truth, your Honor, why not let this statement in? They want a search for truth, let's have all the testimony come out. That's all we're saying. Let's have this real search for truth. And I challenge them, let this statement come in. They want a search for truth? Let's have the statement come in. Let's clear up the record. Let's make it fair to Mr. Simpson. We want to have a fair trial and a search for truth. May I have just a second, your Honor?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: I'm reminded by Mr. Scheck, your Honor, that to give such a limiting instruction would really fly in the face of the facts because, Judge, we would have to be extremely naive to consider that when Lange met with Matheson, Fung and Yamauchi at 7:00 o'clock--and the Court--and the status of the record is, there was then a subsequent meeting with Matheson and Yamauchi and there was then a third meeting with Fung and Yamauchi. Your Honor, they were talking about the facts of this case and they had the detective there from robbery-homicide who told them what had taken place. And that's why, if you look at his notes, it doesn't take a genius to figure this out, that they were talking obviously about this case and what Mr. Simpson had said in seeking to try and disprove that. And so it doesn't--you know, to just say, well, he heard this on the news, your Honor, I think that would be patently naive under the circumstances and very, very unfair again to Mr. Simpson. It won't cure it, your Honor, is what the situation is and when you consider this entire record. And sure he may say, no, no, no. But that doesn't mean we have to accept that. Nobody's bound to accept any official version. Truth doesn't just emanate from that side of the table. And so we have to look at what's reasonable under the circumstances, your Honor. And as you pointed out, this man is one of their experts. They've saved him for dramatic effect until the very end. They're counting on his testimony. And they made a calculated decision, your Honor, and they should not then be allowed to shift the burden over to Mr. Simpson. And I think the factual record sets that forth and I would respectfully urge the Court to allow us to produce the appropriate parts of that statement. You've now seen it and I think this record--that's the way to cure and clear up this record, your Honor.

THE COURT: All right. Thank you, Mr. Cochran.

MS. CLARK: May I?

THE COURT: Briefly.

MS. CLARK: I will be brief, your Honor.

THE COURT: Direct your comments, however, to the factual basis that's before the Court.

MS. CLARK: The factual basis--the record that we have before us--actually, when Mr. Cochran read that to the Court, I think that says it all. He makes no reference to any statement. All he says, he saw--he's questioned as to whether or not he's been watching--he had been watching television in the case, and he does--I think it's interesting. Mr. Cochran said he doesn't understand the term "Examiner bias." We all know the issue is bias. The issue is this witness' state of mind. This witness is there to talk about science. He's there to talk about testing. The Defense has raised conspiracy and bias theories. We're entitled to refute those with the fact that this witness expected everything to come out negative to exclude Mr. Simpson. And in fact, as a personal aside, I would tell the Court he was a fan of Mr. Simpson's and hoped to exclude him. So I mean it's even more than the Defense realizes. But that to the side, what he said and what the jury has heard--and this is what's important here--is that, "Well, on the 13th, the last thing I heard in the evening"--objection, objection. "I heard on the news--like I was saying, I heard on the news, well, yeah, he's got an air-tight alibi. He's in Chicago and, you know, that--and it's his ex-wife and this and that, and I go, oh, well, he's probably not related to the scene." "I heard on the news." All he could have heard on the news is that Mr. Simpson was contacted in Chicago. It was known that he went to Parker Center. It was not known that he made a statement to the police.

THE COURT: No. I think you're repeating yourself at this point.

MS. CLARK: Okay. So we don't have that factually speaking. We have a record that simply indicates that this witness saw a newscast and made a conclusion based on the newscast. That is the record that we have. Could it be made clearer? It could. I agree with that. But under 356, your Honor, only those portions of conversation that Yamauchi talked about are admissible. He talked about a newscast and a newscast that made no reference to his statement. And an alibi is something that everybody talks about--I mean, it's a layperson's term now and it's not necessarily a statement about what you say about where you were or it could be what someone else says about where you were. If I say Mr. Harmon was at the grocery store the other night and so he was not in the office and could not have had a conversation with someone in the office, I have given him an alibi. And it's not premised on anything he said. It's premised on my observation he was at the grocery store. I mean, there's no logical implication of a statement made by the Defendant. And the problem with counsel's argument is that it confuses and distorts the facts and the truth. Mr. Harmon's calculated move was to--

THE COURT: Counsel, I'm only interested in the factual basis.

MS. CLARK: Okay. The only thing we addressed was bias. That was the whole issue. And the alibi issue has been a matter that the Defense has injected into this case from day one. This witness talked about a newscast. That's all he knew. If the record could be made clearer, then I think perhaps it should be and we would ask leave of the Court to reopen on direct to make that very clear. But a limiting instruction would be exactly appropriate, because that is in fact the only reason it's offered. It's not offered for any--obviously for any truth of the matter. Quite the contrary. We're offering it to show this witness' state of mind. And if the jury is informed this witness drew a conclusion based on the newscast that the Defendant was contacted in Chicago and it's limited to his state of mind and nothing more, I think that any possible, any possible harm the Defense claims--and I certainly don't see that--the logic in that argument. But if there is any, it will be dispelled by such a limiting instruction completely and totally.

THE COURT: All right. Thank you, counsel.

MR. COCHRAN: Does the Court want to hear further from me?

THE COURT: Unless you think it's absolutely necessary.

MR. COCHRAN: I'd just like to say one thing.

THE COURT: All right.

MR. COCHRAN: Counsel admits now the calculated nature of this move, and that's what I was trying to argue. But I would just point out to the Court on this factual basis again, the information regarding the cut on the middle finger of Mr. Simpson's left hand had to have come from the detectives, your Honor. That was not in the press. Remember those pictures? You saw the pictures taken. It had to have come--and that further buttresses what we're saying. This is not just limited to some factual determination about the news. It had to have come from Lange or someone--or Vannatter. And it was Lange because he was the one present, your Honor. So I would ask the Court to consider that when you start talking about, you know, just a limiting instruction. That lets them off far too cheaply and it's very unfair to us and leaves us with trying to explain some things we shouldn't have to explain, your Honor. That's all I wanted to point out.

THE COURT: All right. Thank you, counsel.

(Discussion held off the record between the Defense attorneys.)

MR. COCHRAN: And another thing I might point out, it says via--by Mr. Scheck--via robbery-homicide--and I suppose we can find that and let your Honor know that about this cut finger. And when I say via robbery-homicide, they're talking about Lange undoubtedly.

THE COURT: All right. But that has not been elicited by the Prosecution at this point. All right. The Prosecution--I'm sorry.

MR. COCHRAN: May I just have one moment?

(Discussion held off the record between Defense counsel.)

MR. COCHRAN: As I recall, your Honor, there was testimony by Mr. Yamauchi about the cut finger. I think the Court will recall that. I think that he mentioned that, but that's an indication--

THE COURT: That's a different issue, counsel.

MR. COCHRAN: But, your Honor, but he knew that information also, isn't it--I mean, shouldn't we--

THE COURT: No, no, no. Wait. The whole issue was Mr. Yamauchi's statement regarding alibi. That's the only thing I'm focusing on right now. We're not--we're not turning this into a discussion about the cut finger.

MR. COCHRAN: No. I understand that, your Honor. The only reason I was pointing that out--it becomes very instructive to the Court to know--

THE COURT: But that's a different issue, isn't it? Isn't that a different issue?

MR. COCHRAN: Well, is it, your Honor? Doesn't it go to the fact whether he knew this from the news or knew this from robbery-homicide?

THE COURT: That's a different issue.

MR. COCHRAN: Well, I thought I should--

THE COURT: All right. Prosecution request to reopen is denied. I don't find that the statement by Mr. Yamauchi in that last statement directly refers to any statement made by Mr. Simpson to Detective Lange and Vannatter. All right. Let's have the jurors.

(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've been joined by all the remaining members of our jury panel. The record should also reflect that during yesterday's chambers proceedings, the Court found good cause to replace juror no. 12. Mrs. Robertson, would you please draw a name for seat no. 12--excuse me--a number for seat no. 12.

THE CLERK: Juror 2457, please have a seat in seat no. 12.

THE COURT: All right. Juror 165, if you want to move down one seat for better view--

JUROR NO. 165: Thank you.

THE COURT: You are welcome, sir. All right. Mr. Yamauchi, would you resume the witness stand, please.

Collin Yamauchi, 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, Mr. Yamauchi.

MR. YAMAUCHI: Good morning, your Honor.

THE COURT: Mr. Yamauchi, you are reminded you are still under oath. And, Mr. Scheck, you may commence with your cross-examination.

MR. SCHECK: Thank you very much, your Honor. Good afternoon, ladies and gentlemen of the jury.

THE JURY: Good morning.

MR. SCHECK: Good morning. Thank you. Good morning. Good morning, Mr. Yamauchi.

MR. YAMAUCHI: Good morning, Mr. Scheck.

MR. SCHECK: It's Friday, your Honor.

THE COURT: Thank God. Proceed.

CROSS-EXAMINATION BY MR. SCHECK

MR. SCHECK: Mr. Yamauchi, you had just finished your training when you were assigned this case?

MR. YAMAUCHI: No.

MR. SCHECK: Well, your training period was six months of hands-on work?

MR. YAMAUCHI: The question?

MR. SCHECK: Yes.

MR. YAMAUCHI: Was it six months of hands-on work? No. What it entailed was a training process where I learned the theoretical as well as practical aspects of the PCR program.

MR. SCHECK: Well, at the Los Angeles Police Department, as part of your training requirements, you must have a minimum of approximately six months of actual DNA laboratory experience before you can do casework?

MR. YAMAUCHI: Can I see that?

MR. SCHECK: Do you have a copy of your protocol there?

MR. YAMAUCHI: No, I'm sorry. I don't.

(Brief pause.)

MR. SCHECK: My apologies, sir. I have to go back and get the book. Let me just ask you though, you're saying that you have no recollection that your protocol requires that you must have forensic DNA laboratory experience including successful analysis of a typical range of forensic samples and that that takes six months?

MR. HARMON: Objection. It's argumentative, compound, calls for hearsay.

THE COURT: Overruled. Do you have any recollection of that?

MR. YAMAUCHI: No, I don't, not as far as the specifics. But parts of what you said is true in that we do have to go through a battery of proficiency tests as well as validating the process in our own hands that we can get the results that are expected.

MR. SCHECK: And that took you six months?

MR. YAMAUCHI: Well, along with the theoretical background and that sort of thing that's necessary to become proficient and be able to run these tests.

MR. SCHECK: So your training period was six months with the hands-on work and the other instruction you received?

MR. YAMAUCHI: Theoretical, approximately, yes.

MR. SCHECK: All right. And so you began doing DNA work sometime in October of 1993?

MR. YAMAUCHI: Yes. On casework.

MR. SCHECK: So are you saying that you were doing casework since October or you were saying that your training period, your hands-on training period began in October and your training period ended in March?

MR. YAMAUCHI: No. My hands-on casework was started in October. Prior to that was my training period.

MR. SCHECK: So you're saying then that you were doing casework for six months before you took the case and--before you handled this case?

MR. HARMON: Objection. That misstates the testimony.

MR. SCHECK: I'm asking.

THE COURT: Overruled.

MR. YAMAUCHI: Okay. On--in October is when I did my first case. So November--yes, I was doing casework for at least six months.

MR. SCHECK: Uh-huh. And do you know how many cases you did before you did this one?

MR. YAMAUCHI: I'd have to go back and look at the records.

MR. SCHECK: Give an estimate?

MR. YAMAUCHI: I'm sorry. I'd really like to go back and look at the records on that.

MR. SCHECK: Do you think it was more than five, six?

MR. YAMAUCHI: Well, yes, it was more than that.

MR. SCHECK: More than 10?

MR. YAMAUCHI: I can't be any more specific than that. I'm not sure. I would like to go back and look at the records to answer your question accurately.

MR. SCHECK: And you said on direct examination that you had only reported your results in court on two occasions prior to this case?

MR. YAMAUCHI: Reported my results to this case--

MR. SCHECK: No. No. Reported your results in other cases. You had two other instances where you came to court and reported your results to a jury?

MR. YAMAUCHI: That's correct. In PCR testimony, yes.

MR. SCHECK: All right. So there were two cases prior to this one?

MR. YAMAUCHI: Yes. Oh--yes, that's correct.

MR. SCHECK: All right. And those--when you mentioned those two court appearances, you weren't referring to the brief appearance that we had in August of this case?

MR. YAMAUCHI: No. This case is not included in that.

MR. SCHECK: Now, let's discuss your training period a little bit here. During your training, was there anyone with a Ph.D. in molecular genetics or a related field in your laboratory supervising you?

MR. YAMAUCHI: In my laboratory, no.

MR. SCHECK: Was there a Ph.D. in molecular genetics or a related field that was retained as a consultant to the Los Angeles Police Department who advised you?

MR. YAMAUCHI: Well, I did go to the Roche Molecular Systems class for PCR amplification, and there are a battery of Ph.Ds associated with that program.

MR. SCHECK: I understand you went to this--Roche is the manufacturer of the kits?

MR. YAMAUCHI: Yes.

MR. SCHECK: And so you went and you attended some classes there, right?

MR. YAMAUCHI: Yes.

MR. SCHECK: But I'm talking about the Los Angeles Police Department laboratory. Okay?

MR. YAMAUCHI: Once again, at the laboratory, there's no Ph.D..

MR. SCHECK: So the answer to my question, was there a Ph.D. in molecular genetics or a related field who was retained as a consultant to the Los Angeles Police Department laboratory on an advisory basis, the answer to that question is no?

MR. YAMAUCHI: Yes. That's correct.

MR. SCHECK: All right. And so I take it that there was no Ph.D. in molecular genetics or any related field who on any basis was there to assess the validation studies that you were performing during your training period?

MR. YAMAUCHI: No, there was no Ph.D. there.

MR. SCHECK: All right. Was there anybody there, whether or not they had a Ph.D. in a field related to molecular genetics, but had significant expertise, many years of DNA typing work, was there any such person who was retained as a consultant at the Los Angeles Police Department laboratory to assess your validation studies and your training?

MR. YAMAUCHI: No, there wasn't anybody retained like that, but we do do testing with outside proficiency samples.

MR. SCHECK: I'm not talking about your proficiency tests. I'm just talking about, was there a person that was brought in by the Los Angeles Police Department laboratory, whether or not they had a Ph.D., that person, but somebody who had long experience doing DNA typing to assess your work during your training period? Did that happen?

MR. YAMAUCHI: No.

MR. SCHECK: All right. When the DNA laboratory at LAPD was set up in terms of where you would do the extractions, in what room, where you would do the sampling, where you would do the amplification, where you would do the PCR product gels, it was a time when you and Erin Reilly made decisions about where to set things up, correct?

MR. YAMAUCHI: Yes, there was a time period where decisions had to be made like that.

MR. SCHECK: And was there any Ph.D. in a field related to molecular genetics or any expert who had significant DNA typing experience who went over that with you and Miss Erin Reilly to set up the work flow in your DNA laboratory?

MR. YAMAUCHI: Miss Reilly had extensive training at the FBI Academy, and she often corresponded with them and got their input as to the best way to set things up, as well as the people from Roche Molecular Systems. They also offered us their help and advice in setting up our laboratory situation.

MR. SCHECK: Somebody from Roche Molecular came down and looked at the laboratory set-up at LAPD?

MR. YAMAUCHI: Miss Reilly brought over the sketches of what our laboratory set-up and got their advice.

MR. SCHECK: Who?

MR. YAMAUCHI: Miss Reilly.

MR. SCHECK: No. Who from Roche Molecular looked at your plans?

MR. YAMAUCHI: I don't know personally.

MR. SCHECK: You sure that happened, huh?

MR. YAMAUCHI: Yes, I am.

MR. SCHECK: Okay. When?

MR. YAMAUCHI: I'm not sure.

MR. SCHECK: Now, so who--so Miss Reilly, she went to a course taught at the FBI on how to do forensic DNA typing?

MR. YAMAUCHI: Yes. She also acted as a scientific researcher for a few months over at that facility.

MR. SCHECK: Uh-huh. So she was the experienced person that was setting up your DNA laboratory?

MR. YAMAUCHI: Yes.

MR. SCHECK: And it was Greg Matheson, he was the then head of serology?

MR. YAMAUCHI: Mr. Matheson's a supervisor at that time.

MR. SCHECK: And he was assisting in setting up the lab?

MR. YAMAUCHI: Well, he was overseeing it as a supervisor would.

MR. SCHECK: Uh-huh. And he was the person that was administering and reviewing your DNA proficiency tests?

MR. YAMAUCHI: Yes. He would take on that responsibility.

MR. SCHECK: But Mr. Matheson had never done DNA testing casework himself, had he?

MR. YAMAUCHI: Not to my knowledge.

MR. SCHECK: And Mr. Matheson had little experience with DNA typing?

MR. YAMAUCHI: Well, as far as practical aspects are concerned, that's true. But you have to understand, this is a relatively new field and a lot of this has been going on and leaps and bound have been made in this area. He's been quite proficient at keeping up with the technology and the administrative aspects in this area. So it's not like he's completely unknowledgeable in this area.

MR. SCHECK: But my question, he had little experience with DNA typing himself. The answer to that question is yes?

MR. HARMON: Objection. That's vague, your Honor. It misstates the testimony, his own testimony.

THE COURT: Overruled. Overruled.

MR. SCHECK: Mr. Matheson had little experience with DNA typing himself?

MR. YAMAUCHI: Right. The practical aspects, that's correct.

MR. SCHECK: Right. The practical aspects. How the test is actually done.

MR. YAMAUCHI: Yes.

MR. SCHECK: And he, however, was the one who was reviewing the tests that you were doing when you were performing validation studies?

MR. YAMAUCHI: Yes. He would be a part of the review process.

MR. SCHECK: And when the proficiency tests were given out, he was the one that was reviewing and signing them and grading them?

MR. YAMAUCHI: Well, for the in-house one, yes, he would take care of that.

MR. SCHECK: Okay.

MR. YAMAUCHI: But he would also review the results from the tests that are sent out to the organizations like CTS and the College of American Pathologists that run blind tests where we don't know the answers beforehand; and then we submit our results and then these people come back and send us the correct answers and then those are shown that yes, we do have the same answers as they do. And through that process, Mr. Matheson handles that clerical end of it.

MR. SCHECK: So Mr. Matheson was reviewing the validation or internal tests, yes?

MR. YAMAUCHI: Yes.

MR. SCHECK: And those external tests, those are the ones from the College of American Pathology and the Collaborative Testing Service?

MR. YAMAUCHI: Yes.

MR. SCHECK: And those are the ones where you know you're being tested?

MR. YAMAUCHI: Yes. You know you're being tested.

MR. SCHECK: And those were the ones that Mr. Matheson reviewed and graded?

MR. YAMAUCHI: Well, he would--he would take our results and then compile the necessary information. That would be sent out along with the quality control person who is Alex Inogia, and they would handle the results and come back and tell us yes, you're okay. You've passed the test.

MR. SCHECK: He was reviewing that work, Greg Matheson?

MR. HARMON: Objection. Asked and answered.

THE COURT: Sustained.

MR. SCHECK: Was Mr. Matheson in your opinion somebody that you could go to and get knowledgeable advice about how a particular DNA test went or how it was performed, correctly or incorrectly?

MR. YAMAUCHI: Well, yes, you could. He--he understands the theoretical background to this, and in a lot of respects, a lot of this is common sense, as we've stated earlier. You know, for contamination purposes, you don't want to have two envelopes opened at the same time. That makes common sense. I think everybody can see that. And that sort of thing goes on to Mr. Matheson's end in this situation also. We can go to him to say, "Well, should we set this up in this area?" And from an administrative point of view, he might say, "Well, maybe we should go to PAB and set this up, this particular section of the lab because we have more room over there." So he is knowledgeable because he does have theoretical background and he does have common sense. And, you know, he was on the stand already. So you could see that.

MR. SCHECK: You watched his testimony?

MR. YAMAUCHI: Yes, I did.

MR. SCHECK: All right. And did you hear Mr. Matheson say that he didn't regard himself as an expert in DNA typing techniques?

MR. HARMON: Objection. Calls for speculation. That misstates the exact testimony without page and line.

THE COURT: Sustained.

MR. SCHECK: Did you--in listening to Mr. Matheson's testimony, do you recall him holding himself out as an expert in DNA typing?

MR. YAMAUCHI: No.

MR. HARMON: Objection. Irrelevant, calls for hearsay.

THE COURT: Overruled.

MR. SCHECK: Do you recall him saying that he really couldn't answer questions about the details of the PCR typing technique?

MR. HARMON: Objection. That's vague, calls for hearsay, misstates the testimony.

THE COURT: Sustained.

MR. SCHECK: Your Honor, I'm now referring to page 25529.

MR. SCHECK: Did you hear Mr. Matheson give this answer to this question? "Question: Now, do you consider yourself an expert in DNA technology? "Answer: No, I do not."

MR. YAMAUCHI: Yes, I remember that.

MR. SCHECK: And did you hear him give this answer to this question? Next--same page, next question. "Question: And during the time you were developing the PCR program for the lab, the people that were working on that under you, did they have more experience than you or less? "Answer: They had more experience."

MR. HARMON: Objection. That calls for hearsay.

THE COURT: Overruled.

MR. SCHECK: Hear him testify to that?

MR. YAMAUCHI: Yes, I did.

MR. SCHECK: All right. So would it be fair to say that he had less knowledge of how PCR testing worked than you did?

MR. HARMON: Objection. Calls for speculation.

THE COURT: Sustained.

MR. SCHECK: Now, during this training period, you did an exercise where you typed what were called mock vaginal swabs?

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. That was part of the validation study?

MR. YAMAUCHI: Yes.

MR. SCHECK: And when you did this, you knew you were being tested?

MR. YAMAUCHI: Being tested?

MR. SCHECK: You knew it was a mock case, it wasn't a real case.

MR. YAMAUCHI: Okay. You're going to have to be more specific as to which particular mock vaginal swab we're talking about.

MR. SCHECK: All right. Well, do you recall that there were instances where you were given samples and you were told that these are vaginal swabs and you should extract the DNA and test them?

MR. YAMAUCHI: There's the one that was set up by Mr. Matheson--excuse me--Mr. Matheson and that was a mock case that was set up specifically by him.

MR. SCHECK: All right. And when you did these tests in your validation studies, you were being as careful with those samples as you were with the evidence in this case?

MR. YAMAUCHI: Well, in the time period before starting casework, we were doing a lot of things, experimenting with--in fact, creating vaginal--mock vaginal swabs that would be not so easy and yet they wouldn't be so dilute that we couldn't get results off of. So, you know, part of the case was just trying to develop the samples that we were need--that were needed to test ourselves on.

MR. SCHECK: Well, you were using the same techniques on those mock cases as you used in this case, same PCR kit?

MR. YAMAUCHI: I'm sorry. One more time, please?

MR. SCHECK: You were using the same technique, the same PCR kit when you're doing the mock cases as you used in this case?

MR. YAMAUCHI: Well, we go through quite a few kits. They're--

MR. SCHECK: Same kind of kit. Same kind of kit.

MR. YAMAUCHI: Yes. The same kind, but there are different lots. And actually, each kit has 50 strips. So we've gone through quite a few of them.

MR. SCHECK: Mr. Yamauchi, I'm not asking about the reagents. I'm asking you about the PCR typing technique, the strips, the basic tests that you were performing, it was the same on those mock cases as in this case?

MR. YAMAUCHI: Yes. The kits were, generally speaking, the same.

MR. SCHECK: Yes. The same Roche kit, right?

MR. YAMAUCHI: From the same catalog number from the manufacturer, yes.

MR. SCHECK: Okay. And you were using the same kind of microfuge tubes?

MR. YAMAUCHI: Micro centrifuge tubes, yes.

MR. SCHECK: You were doing this--these extractions in the mock cases in the same laboratory that you did the work in this case?

MR. YAMAUCHI: Yes.

MR. SCHECK: You were doing the amplifications at Parker Center the way you described doing them in this case?

MR. YAMAUCHI: Yes.

MR. SCHECK: And when you were doing the mock cases, you weren't in a hurry, were you?

MR. YAMAUCHI: No.

MR. SCHECK: And you weren't under a lot of pressure, were you?

MR. YAMAUCHI: I'm never in a hurry when I do my casework.

MR. SCHECK: Well, you were in a hurry in this case, weren't you?

MR. HARMON: Objection. That's argumentative.

THE COURT: Sustained. Rephrase the question.

MR. SCHECK: Now--

MR. SCHECK: Your Honor, I'd like to mark two pages at this point in time. What would be our number? Actually--ultimately, I'm going to be using four pages. So maybe I should--group of documents, four pages and--

THE CLERK: 1181.

MR. SCHECK: 11 what?

THE CLERK: 1181.

MR. SCHECK: 1181-A, B, C and D.

THE COURT: All right. Have you shown those to Mr. Harmon?

(Deft's 1181-A through D for id = four pages)

(Brief pause.)

MR. HARMON: Your Honor, may we approach the bench? This relates to our earlier discussions.

THE COURT: With the court reporter, please.

(The following proceedings were held at the bench:)

THE COURT: All right. Mr. Scheck, if you recollect, there's a Court order directing all parties to display their documents so we don't have to stand around and do this again. So both sides are reminded of that. All right. What's the problem with this?

MR. HARMON: Well, this--can I speak? I made the objection. This would seem to relate to the whole Gerdes thing. They said they have one question about it, and I have accepted that. I had meant to bring that up again before we started. But it can go on and on.

THE COURT: All these things are validation studies, Mr. Scheck?

MR. SCHECK: Yes, your Honor. They have nothing to do with Dr. Gerdes. If I can explain to the Court--

THE COURT: All right.

MR. SCHECK: --what these were. What this is is the PCR validation study that was turned over to us in discovery before we even had the jury. So what this is is a report from LAPD, the very first discovery we got indicating that the validation work performed by criminalists Reilly and Yamauchi and that every sample gave the expected typing result or no typeable result was observed, at no time was there incorrect typing observed. They then produced for us a code indicating mock vaginal swabs where they simply list here what the expected types are for each of these different samples. Then they produced for us in the same batch the hybridization validation studies. And this had nothing to do with Mark Taylor going to the lab and looking at those books. They produced this in the first round and this has nothing to do with reading strips. This has to do with their readings. When one reviews what Mr. Yamauchi reported as the typing results and compares it to the code, which I did myself, you can see that he got two different answers. So has nothing to do with the reading strip. It has to do what he reports his results are. It's not a contamination issue. It's just a mistake.

MR. HARMON: Somebody else graded them and said he got the right answer? I'm not sure I follow that. How do you get--

MR. SCHECK: Well, he'll explain it. But all I can do from my discovery is go through this. I have a listing of one to 11 mock vaginal swabs and we have typing of one to 11, and what we can see is that there are two mistakes. And this is the only such document I'm going to go into. But this has nothing to do with Dr. Gerdes. This has to do with their discovery and what their reported results are.

THE COURT: How do you know these are the same things?

MR. SCHECK: Well, he can tell us if they're not. If I'm--you know--when one looks at the--compares the typing results with the other samples, they all correspond except for certain ones. Maybe he can explain it. This is a document they gave us.

MR. HARMON: "This is a document they gave us," that's a nice--that hasn't been incorporated into California evidence code as a hearsay objection or exception. So he wants to show him pieces of paper that he hasn't produced and confront him with--we see the problem. This is September `93. Had there been a question, your Honor, these guys have open access to Greg Matheson all along. But they just want to confront him with a piece of paper they say, "Well, this is what we got in discovery." So there's a problem here, right? And I just don't think they have made an offer of proof. And given that date on it, it sure seems like it's irrelevant.

THE COURT: Well, you have a foundational problem at this point with these documents. But if you can lay a foundation and if he says the right thing, you get all the right answers, these are appropriate documents--you've got to ask the questions.

(The following proceedings were held in open court:)

THE COURT: All right. Thank you, counsel. Proceed.

MR. SCHECK: Now, Mr. Yamauchi, I show you what's 1181-A, ask you to look at that document.

MR. YAMAUCHI: (The witness complies.) Yes.

MR. SCHECK: Now, this document refers to your validation studies?

MR. HARMON: Objection, your Honor. Calls for hearsay, no foundation.

THE COURT: Sustained.

MR. SCHECK: Do you recognize this document?

MR. YAMAUCHI: It looks familiar, but I can't say for sure. I'd have to see it in the packets of all the stuff we have.

MR. SCHECK: Well, you recall turning over a whole series of documents to the Defense in regard to your validation studies?

MR. HARMON: Objection. That misstates the testimony. There's no foundation that he did that either.

THE COURT: Overruled.

MR. YAMAUCHI: I'm not sure if I did. I believe it might have been my supervisor, Mr. Matheson, that took care of all those things.

MR. SCHECK: Well, were you privy or did you know about the documents that were being turned over in regard to validation studies?

MR. HARMON: Objection. Compound, calls for hearsay.

THE COURT: Overruled.

MR. YAMAUCHI: I'm sorry. One more time?

MR. SCHECK: Did you know that documents were being turned over in regard to validation studies that you had performed?

MR. YAMAUCHI: Yes, I was under that understanding.

MR. SCHECK: All right. And you're familiar with the materials that went into those validation studies?

MR. YAMAUCHI: Could you be more specific?

MR. SCHECK: Yeah. You--first of all, I believe you told us on direct examination that in terms of these tests you received, that as far as you knew, you had either gotten the expected typing at no typeable result, but at no time had you made an incorrect typing result?

MR. YAMAUCHI: Yes.

MR. SCHECK: And that's what your understanding was after you finished these tests and turned them into your supervisor?

MR. YAMAUCHI: After I finished them or--well, I turned in the results and then they come back and tell us, you know, you're okay or you know.

MR. SCHECK: They reviewed them with you?

MR. YAMAUCHI: Right.

MR. SCHECK: And they say you got the right answers?

MR. YAMAUCHI: Yes.

MR. SCHECK: Either you got the right result or no typing result was observed?

MR. YAMAUCHI: That's correct.

MR. SCHECK: And at no time did anybody ever tell you that you got a wrong answer?

MR. YAMAUCHI: On my validation--I mean my proficiency stuff?

MR. SCHECK: And the validation studies?

MR. YAMAUCHI: Yes.

MR. SCHECK: Okay. Now, one of the validation studies that you did referred to mock vaginal swabs. You recall that, just mentioned that?

MR. YAMAUCHI: Yes.

MR. SCHECK: Okay. And let me show you what's 1181-C, D and B, ask you to take a look at these documents.

MR. YAMAUCHI: (The witness complies.) Yes.

MR. SCHECK: Okay. Now, do you recognize 1181-B to be a code, what's known as a code sheet that indicates what the correct types are for the LAPD mock vaginal swab validation tests?

MR. YAMAUCHI: There's a listing of types on there, yes.

MR. SCHECK: All right. And what 1181-B represents is what the correct results should be for sperm fractions or epithelial cell fractions in the mock vaginal swabs?

MR. HARMON: Objection. Calls for hearsay, no foundation.

THE COURT: Sustained.

MR. SCHECK: Does this represent 1181-B, the code section, statements as to what the correct answer should be for the sperm fraction and the epithelial fraction on the mock vaginal swabs?

MR. HARMON: Objection. Calls for speculation, no foundation.

THE COURT: Overruled.

MR. YAMAUCHI: Okay. It does list typings for a certain set of mock vaginal swabs. I'm not sure if they correspond to this sheet here. I would have to go back and check the records to be sure of that.

MR. SCHECK: Uh-huh. Do you have those records here?

MR. YAMAUCHI: No. I wasn't told to bring anything except other than that's related to this case.

MR. SCHECK: All right. If I show you some records, do you--let me show you some records then.

(Brief pause.)

MR. SCHECK: Now, you recall that the--you've seen these DNA discovery pages; have you not?

THE COURT: You're referring to 1181?

MR. SCHECK: Yes.

MR. SCHECK: In other words, the way they're coded, they have DNA discovery numbers, DNA 586, 587, et cetera? You've seen those before, haven't you?

MR. YAMAUCHI: No. I haven't seen that particular numbering system at the top.

(Brief pause.)

MR. SCHECK: Your Honor, I think I--just out of completeness, what I would ask to do is mark another page, 1181-E.

THE COURT: You want to show that to Mr. Harmon?

MR. SCHECK: Yeah.

(Deft's 1181-E for id = DNA hybridization record)

MR. SCHECK: What I would like you to do is take a look at 1181-C, D and E, okay? My first question to you is, do you recognize those as DNA hybridization records that you filled out?

MR. YAMAUCHI: Yes.

MR. SCHECK: Those represent your testing and test results?

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. And there are--in reviewing these, would you confirm that there are 11 different samples tested in 1181-C, D and e?

MR. YAMAUCHI: Well, first of all--okay. I can confirm that there are 11 there.

MR. SCHECK: All right.

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. And they're marked v, 11--no. 1-V--no. 1-V to 11-V?

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. And does that not conform to the 11 mock samples reflected in 1181-B?

MR. HARMON: Objection. Calls for speculation, no foundation.

THE COURT: Sustained.

MR. SCHECK: Do you know if that conforms--withdrawn. On 1181-B, the mock vaginal swabs, are there not 11 different samples that are involved in that test?

MR. YAMAUCHI: There's a listing of 11.

MR. SCHECK: All right. And comparing 1181-B to 1181-C, D and E, can you not say--well, withdrawn. Comparing 1181-B--

MR. YAMAUCHI: Yes.

MR. SCHECK: --the 11 mock samples to 1181-C, D and E, does--isn't it true that the hybridization runs that you did are part of this mock vagina swab test?

MR. HARMON: Objection. No foundation, calls for hearsay, speculation.

THE COURT: Overruled.

MR. YAMAUCHI: Okay. To answer that question, I would have to go back to the records to be sure that this set does correspond to this sheet here. As I was explaining earlier, we had to make our own mock vaginal swabs. And part of that had to do with creating some swabs that were typeable and were not so easy that--in other words, we wanted them to be somewhat challenging. Yet, if we made them too challenging, they wouldn't yield results. So in the process of making those, making those samples, we had to run some tests. And I don't know if this is a sheet where we were just making tests to show that the swabs that we were making the swabs to test ourselves with were okay or not. I'd have to go back and look and check.

MR. SCHECK: Well, would you compare the expected typing results on these 11 samples from the mock vagina swabs to the results on your sheets?

MR. HARMON: Objection. It's irrelevant, no foundation, calls for speculation.

THE COURT: Sustained.

MR. SCHECK: How would you be able to determine that 1181-C, D and E were part of the mock vaginal swabs that are reflected in the coded material on 1181-B? How could you do that?

MR. YAMAUCHI: At this point, I'd have to go back to the lab and examine all our records to be sure that this was in fact the bottom-line finished product that we were using to test ourselves with. This was in a period that was prior to casework. So I'm not sure if it was just times we were practicing or if it was something where we were doing official validation for ourselves.

MR. SCHECK: Well--

MR. YAMAUCHI: And once again, I was trying to set up some swabs that we could test ourselves with, and that needed testing too.

MR. SCHECK: Mr. Yamauchi, just so we're clear, the validation studies included tests that were given to you, mock vaginal swabs before you began casework, right?

MR. YAMAUCHI: There were several sets of validation steps and yeah, this was one of them.

MR. SCHECK: All right.

MR. YAMAUCHI: But like I said before, I have to go back and check to make sure that these two correspond and they're from the same test.

MR. SCHECK: Okay. Do you think you can do that? I don't believe we're going to finish this morning. So do you think you can do that over the weekend, you could go back and check and see if these correspond?

MR. YAMAUCHI: Yes. That would be fine.

MR. SCHECK: Okay. And there's probably no question I could ask you which would help you to see whether or not--

THE COURT: I don't think that question is ever going to be right.

MR. SCHECK: I'm sorry? I'm sorry?

THE COURT: That question has no future.

MR. SCHECK: I can tell that has no future.

MR. SCHECK: You'll be able to do this, won't you?

MR. YAMAUCHI: Can--yeah. Can you leave this with me?

MR. SCHECK: I'll--at the end of the day--

THE COURT: Actually what we'll do is, we'll give him a photocopy that belongs to the Court.

MR. SCHECK: Yes.

MR. SCHECK: But as far as you know--

THE COURT: Would you have Mr. Gollob make a photocopy of that, please?

(Brief pause.)

THE COURT: Why don't we wait until he does the comparison, then we can save us some time.

MR. SCHECK: If you went through the discovery book, you wouldn't be able to do it sitting here. You wouldn't feel comfortable, right? You would want to go back and talk to Mr. Matheson and everybody else in the lab?

THE COURT: Mr. Blasier, would you give those things--

MR. SCHECK: Is that right?

MR. HARMON: Your Honor--

THE COURT: That's argumentative.

MR. HARMON: Thank you, your Honor.

THE COURT: All right. Counsel, given the point, why don't we take our shift at this point. All right. Ladies and gentlemen, we're going to take a brief recess. Please remember my admonitions to you; don't discuss this case amongst yourselves, don't form any opinions about the case, don't allow anybody to communicate with you, don't conduct any deliberations until the case has been submitted to you. We'll stand in recess for 15.

(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 the parties are again present. Deputy Magnera, let's have the jurors, please.

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

THE COURT: Thank you, ladies and gentlemen. Please be seated. Mr. Yamauchi, would you resume the witness stand, please. Let the record reflect that we've been rejoined by all the members of our jury panel. And, Mr. Scheck, you may continue with your cross-examination.

MR. SCHECK: Thank you, your Honor.

MR. SCHECK: Mr. Yamauchi, you remember at the very beginning of our discussion here, I asked you about whether your protocol indicated that each analyst must have, at a minimum, forensic DNA laboratory experience, including successful analysis of a typical range of forensic samples, and that this normally takes six months? Remember I asked you that question?

MR. HARMON: Objection. That misstates the question.

THE COURT: It's close enough.

MR. YAMAUCHI: I recall something like that.

MR. SCHECK: And you said that you needed to see the protocol, right?

MR. YAMAUCHI: Yes.

MR. HARMON: Can I see that?

MR. SCHECK: Sure.

(Brief pause.)

MR. SCHECK: Let me show you this document, see if it refreshes your recollection. And I'm--please, why don't you take a look at the--save time--the paragraph that I've marked for you.

MR. YAMAUCHI: Can I look at the pages before and after that?

MR. SCHECK: Look all you want.

MR. YAMAUCHI: Thank you.

THE COURT: Mr. Scheck, that kind of gesture is not required.

MR. SCHECK: Oh, I'm sorry.

(Brief pause.)

MR. YAMAUCHI: Okay.

MR. SCHECK: All right. So having refreshed your recollection by looking at that document, do you not agree that your protocol says that at a minimum, an analyst must have forensic DNA laboratory experience including the successful analysis of a typical range of forensic samples, and that this normally takes six months?

MR. YAMAUCHI: Well, you left out the word "Approximately six months." You left out the word "Approximately."

MR. SCHECK: When I read it to you the first time, did I leave out "Approximately six months"?

MR. YAMAUCHI: Yes, and you did it again just now.

MR. SCHECK: Okay. So in other words, the reason that you did not recall this provision is that you think I left out the word "Approximately" and you were conscious of that?

MR. HARMON: Objection. It's argumentative.

THE COURT: Sustained.

MR. SCHECK: Was the reason you didn't answer my question before in terms of being able to recall this provision of the protocol is that you thought I left out the word "Approximately"?

MR. YAMAUCHI: Well, I heard it right now and I'm reading it. So I'm comfortable with what I see.

MR. SCHECK: Okay. So the first time I read it, you think I left out the word "Approximately," and that's why you didn't remember it?

MR. YAMAUCHI: Yes, I believe you did.

MR. SCHECK: Okay. My apologies if that's true. And you were conscious of that; is that right?

MR. YAMAUCHI: Yes.

MR. SCHECK: And why--did you have--well, did you have six months of forensic DNA laboratory experience, including the successful analysis of a typical range of forensic samples, before you started to do casework?

MR. YAMAUCHI: Yes. Approximately.

MR. SCHECK: Well, let's try six months. Did you have six months?

MR. HARMON: Objection. It's vague.

THE COURT: Overruled.

MR. YAMAUCHI: I'm not sure exactly how much. It's approximately six months. I would have to go back to the records and check exactly how much time I did spend to do all my proficiencies and my validations.

MR. SCHECK: So what you're telling us is, you don't know if you spent six months actually doing hands-on work in validation training before you started to do casework. Is that what you're saying?

MR. YAMAUCHI: Once again, it's approximately six months. It's around that time--time period.

MR. SCHECK: Now, you mentioned on direct examination external proficiency tests.

MR. YAMAUCHI: Yes.

MR. SCHECK: And these are the tests where you know you're being tested?

MR. YAMAUCHI: Yes.

MR. SCHECK: How many external proficiency tests did you do before you did the work in this case?

MR. YAMAUCHI: That's another thing I would have to check records on. I don't have that information memorized and it's quite a while ago, but I know I did more than one.

MR. SCHECK: You're sure of that?

MR. YAMAUCHI: Yes.

MR. SCHECK: Now, when you say "Did," you mean you actually performed the work on them?

MR. YAMAUCHI: Yes. I would have analyzed the samples given to me by my supervisor.

MR. SCHECK: Do you--when you did the work in this case, did you know--had you been graded, did you know the results of both of these proficiency tests?

MR. YAMAUCHI: I don't understand. Did I know the results as to time frame before or after? What do your--what's your question?

MR. SCHECK: Let's try it this way. Did you receive an external proficiency test in November of 1993?

MR. YAMAUCHI: I'd have to check the records.

MR. SCHECK: All right. Did you receive a proficiency test in March of 1994?

MR. YAMAUCHI: Possibly. I'd have to check the records to be sure though.

MR. SCHECK: All right. And when you get a proficiency test, you do the typings, and then at some point down the line, you're told how you did?

MR. YAMAUCHI: Yes.

MR. SCHECK: So my question to you is, how many proficiency tests did you both do and get graded on before you did the work in this case?

MR. YAMAUCHI: Okay. To give you a fair and as accurate an answer as possible, I would have to go back to the records and look that up for sure.

MR. SCHECK: Okay. Now, in taking--your recollection is that you think you took about two external proficiency tests before you did the work in this case?

MR. YAMAUCHI: No. I said at least one.

MR. SCHECK: At least one. Okay. In this test that you did, did you get a set of samples and Erin Reilly get a set of samples?

MR. HARMON: Objection. Calls for speculation, hearsay, no foundation.

THE COURT: Overruled. Overruled.

MR. YAMAUCHI: Yes. We generally get each a set.

MR. SCHECK: Uh-huh. Now, just so we're clear, what happens is is that the test provider gives you a set of samples and then you then test them, correct?

MR. YAMAUCHI: That's correct.

MR. SCHECK: Okay. Now, did you hear any of Gary Sims' testimony about the way these kinds of tests were handled at the Department of Justice?

MR. YAMAUCHI: I might have--I listened to bits and pieces of his testimony, but not much.

MR. SCHECK: Well, when this kind of proficiency test is given to the laboratory and two different analysts in the lab are performing the test--are you with me?

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. In this case, a set of proficiency samples was sent to LAPD, and you performed the test and Erin Reilly performed the test?

MR. YAMAUCHI: Yes.

MR. SCHECK: Okay. Did Harry Klan, another one of your analysts, perform the test?

MR. YAMAUCHI: When he was on line and ready to test samples, yes, he would. He would do it that way. We would all get our sets.

MR. SCHECK: Okay. Now, in terms of the tests that you performed before you did the work in this case, at that point in time, it would be just you and Erin Reilly?

MR. YAMAUCHI: Yes.

MR. SCHECK: And when each of you got the samples, did you know what the other person's results were before you reported your results?

MR. YAMAUCHI: No.

MR. SCHECK: Well--and that's the way it should be done?

MR. YAMAUCHI: We shouldn't corroborate. I don't think that's right.

MR. SCHECK: Uh-huh. So in other words, if Erin Reilly performed the test and got some typings, it would be improper on a proficiency test for you to be the second reader to look at her results and confirm them if you were also going to be performing the test?

MR. HARMON: Objection. It's argumentative, irrelevant.

THE COURT: Sustained.

MR. SCHECK: All right. Let's be clear. When you take one of these samples, you would do some typing, correct?

MR. YAMAUCHI: Yes.

MR. SCHECK: And you create one of these hybridization records?

MR. YAMAUCHI: Yes.

MR. SCHECK: Where you put a picture of the strip on the top of the page and then you write down on the bottom of the page what the results are?

MR. YAMAUCHI: Yes.

MR. SCHECK: And at the top of the page, there's a little box for analyst?

MR. YAMAUCHI: Yes.

MR. SCHECK: And when you write in your initials at the top for analyst, that means you're the one that did the typing?

MR. YAMAUCHI: Yes.

MR. SCHECK: And when there's another box there for confirming analyst, if you write your initials in there, that means that the person whose initials are there is the one that does the second reading?

MR. YAMAUCHI: Yes.

MR. SCHECK: Now, in the proficiency tests that you received, did Erin Reilly do the typing and then you were the confirming analyst to look at the results? Did that happen?

MR. YAMAUCHI: I might have been. It would be either myself or Greg.

MR. SCHECK: Well, if you're the confirming analyst, when she's doing the typing on the proficiency test, doesn't that mean that you're knowing what answers she's getting?

MR. HARMON: Objection. It's irrelevant, argumentative.

THE COURT: It's argumentative. Why don't you rephrase the question.

MR. SCHECK: All right.

MR. SCHECK: If she does the typing and then you look at the results as the confirming analyst, that means you know what her results are?

MR. HARMON: Objection. That's speculative, no foundation, calls for conclusion.

THE COURT: Overruled.

MR. YAMAUCHI: Yes. Provided I know that she's doing those--those samples. In other words, what I do is, I look at the picture of her strips, and then I confirm that the typings that she put for each of those strips is what I would call. That's what I do for confirmation.

MR. SCHECK: Right. So you look at the strips and you see if you agree with her reading of the typing strip, correct?

MR. YAMAUCHI: Yes.

MR. SCHECK: And these samples in their description box will indicate something like cap, sample, correct?

MR. YAMAUCHI: I'm not sure how she writes it in, but she could write it in like that.

MR. SCHECK: And--

(Brief pause.)

MR. SCHECK: Ask this page be marked as--

THE COURT: 1182.

(Deft's 1182 for id = one-page document)

MR. HARMON: Could I see that, your Honor?

MR. SCHECK: I'm sorry.

(Brief pause.)

MR. SCHECK: Now, do you recognize 1182 as being the kind of hybridization record that you would use in a proficiency test, your laboratory?

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. And in the description box, there's an indication that a sample is called cap, right?

MR. YAMAUCHI: Yes.

MR. SCHECK: And that means that it's College of American Pathologists?

MR. YAMAUCHI: Yes.

MR. SCHECK: And that would indicate to you or to anyone looking at it that that is a sample from a College of American Pathologists proficiency test?

MR. YAMAUCHI: Well, that's what I wrote in there, yes.

MR. SCHECK: And that's your initial on the top of 1182?

MR. YAMAUCHI: Yes. I'm the analyst. This is--this would be my set of samples I would assume.

MR. SCHECK: And who's the confirming analyst?

MR. YAMAUCHI: Looks likes Erin Reilly.

MR. SCHECK: So in this instance, you would be doing the test and Erin Reilly would be reading your strips to see if you got the right answers?

MR. YAMAUCHI: Yes.

MR. SCHECK: So you would be looking at each other's strips on the same test that both of you were taking?

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

THE COURT: Sustained.

MR. SCHECK: Did that happen?

MR. HARMON: Objection. That's vague.

THE COURT: Overruled.

MR. YAMAUCHI: Well, in this instance, I might have done the test--she might have done the test already and submitted her results. But I mean, I could very well have. I would have to see the sheets and how she marks her--her proficiency samples on there.

MR. SCHECK: Could it have happened that in one of these tests, she did the test and then you were the confirming analyst for her?

MR. HARMON: Objection. Vague, calls for speculation, no foundation.

THE COURT: Overruled.

MR. YAMAUCHI: That's possible.

MR. SCHECK: And if that occurred, wouldn't that mean that you would be knowing what her results were before you did the test?

MR. HARMON: Objection. Vague, calls for speculation, no foundation.

THE COURT: Overruled.

MR. YAMAUCHI: Yes. That's possible, if she wrote in the corresponding numbers and everything like that and I took note of it.

MR. SCHECK: Now, the term--are you familiar with the term "Blind means" in terms of scientific testing?

MR. YAMAUCHI: Yes. Like without knowing?

MR. SCHECK: Right. Without knowing the answers.

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. So it would be fair to say that you're not blinded to the answers when you take a proficiency test if you've already read strips from another analyst in your laboratory who took the same test?

MR. YAMAUCHI: Provided I saw that and I did confirm her strips.

MR. SCHECK: Uh-huh. Now, you have never taken in your laboratory an external blind proficiency test, have you?

MR. YAMAUCHI: Okay. Could you please define that?

MR. SCHECK: Okay. You don't--you've never heard the term "External blind proficiency test"?

MR. YAMAUCHI: Yes, but I want to know if we're on the same wavelength.

MR. SCHECK: All right. How would you define an external blind proficiency test?

MR. YAMAUCHI: Well, maybe if you'd just define it, we can move along.

MR. SCHECK: Well, I'm first interested in--have you been watching the testimony of the trial?

THE COURT: Excuse me. Excuse me. Excuse me. Excuse me. Excuse me.

MR. SCHECK: I'm sorry.

THE COURT: This is not an audience participation enterprise here, folks. You're here as an audience, not as participants. If I hear another outburst from the audience, I'm clearing the courtroom. There's nothing funny about this. Mr. Scheck.

MR. SCHECK: Thank you, your Honor.

MR. SCHECK: What's your understanding of an external blind proficiency test, Mr. Yamauchi?

MR. YAMAUCHI: It's done from a source outside of the laboratory in question and it's done in such a way that the laboratory doesn't know the results.

MR. SCHECK: But they know they're being tested?

MR. YAMAUCHI: Yes.

MR. SCHECK: Then what's your--what is your definition of an open external proficiency test?

MR. YAMAUCHI: Open external. I don't know what that means.

MR. SCHECK: Never heard that expression?

MR. YAMAUCHI: No, I haven't.

MR. SCHECK: Did you watch Dr. Cotton testify at all?

MR. YAMAUCHI: Bits and pieces.

MR. SCHECK: All right. Mr. Sims?

MR. YAMAUCHI: Again, bits and pieces.

MR. SCHECK: Have you ever heard anyone define an open external proficiency test as a test where the samples are submitted from an external source, but the analysts at the laboratory know that it's a test?

MR. YAMAUCHI: That's what I just described, isn't it? They're--it's done by an outside source and they don't know the results. Isn't that what I said?

MR. SCHECK: That's how you define an external blind test, right?

MR. YAMAUCHI: Right.

MR. SCHECK: Wouldn't an external blind proficiency test be one where the samples are submitted by an external source, but the laboratory doesn't know it's a test, they think it's a real case?

MR. YAMAUCHI: I understand that to be a double blind.

MR. SCHECK: That's how you define double blind?

MR. YAMAUCHI: Yes.

MR. SCHECK: All right. You've never heard anybody refer to such a test as an external blind?

MR. YAMAUCHI: External blind is the way I just explained it.

MR. SCHECK: Right. And you've never heard anybody--you've never heard of an--an open external test? That definition you've never heard of?

MR. YAMAUCHI: No.

MR. HARMON: Objection. Calls for hearsay. It's irrelevant.

THE COURT: Overruled.

MR. SCHECK: Now, using your phrase then, have you ever in your laboratory, you or any other analyst ever done a double blind external proficiency test?

MR. YAMAUCHI: No.

MR. SCHECK: Mr. Yamauchi, have you ever read the report of the national research council entitled DNA technology in forensic science?

MR. YAMAUCHI: Yes I have. I'm familiar with that.

MR. SCHECK: Have you read it cover to cover?

MR. YAMAUCHI: Maybe not cover to cover.

MR. SCHECK: Have you studied it?

MR. YAMAUCHI: Well, certain areas I've read numerous times.

MR. SCHECK: Which areas?

MR. HARMON: Objection. That's irrelevant, your Honor.

THE COURT: Sustained. Why don't you focus on a particular area, counsel.

MR. SCHECK: All right.

THE COURT: Let's move this along.

MR. SCHECK: Are you familiar with the section of the national research council report at page 88 concerning laboratory error rates?

MR. YAMAUCHI: I'm really not familiar with this area because generally speaking, that was supposed to be or have to do with the RFLP testing.

MR. SCHECK: So you didn't read that section of the NRC report because you think that the section on laboratory error rates only concerned RFLP testing?

MR. HARMON: Objection, your Honor. It's argumentative.

THE COURT: Overruled.

MR. YAMAUCHI: No. I've read this, but I'm not--like I haven't studied it.

MR. SCHECK: All right. So have you read it--are you sufficiently familiar with it so that you can tell us whether or not you have relied upon it in forming your opinions with respect to forensic DNA typing in your testimony in this case?

MR. HARMON: Objection. That's vague, compound.

THE COURT: It's vague.

MR. SCHECK: All right. Do you rely on that section, the NRC report concerning laboratory error rates, in forming your opinions about forensic DNA typing?

MR. HARMON: Objection. That's vague.

THE COURT: Overruled.

MR. YAMAUCHI: No.

MR. SCHECK: Is there any portion of the NRC report that you rely upon in forming your opinions about forensic DNA typing?

MR. HARMON: Objection. That's vague.

THE COURT: Sustained.

MR. SCHECK: Mr. Harmon asked you on direct examination if you keep abreast of the scientific literature in the field of DNA testing. Do you recall that?

MR. YAMAUCHI: Yes.

MR. SCHECK: And he asked you which journals that you read regularly. Do you recall that?

MR. YAMAUCHI: Yes.

MR. SCHECK: And at that time, you couldn't really remember which journals you regularly read?

MR. YAMAUCHI: Well, I read the ones that are--having to do with PCR technology.

MR. SCHECK: All right. Do you read the journal--American Journal of Human Genetics?

MR. YAMAUCHI: I believe I read an article out of there directly related, PCR technology.

MR. SCHECK: But is that a journal that you read with some regularity to keep up with--

MR. YAMAUCHI: All the periodicals? No, I don't.

MR. SCHECK: All right. Do you--are you a regular reader of the scientific journal nature?

MR. YAMAUCHI: I read articles out of there.

MR. SCHECK: Do you read that regularly?

MR. YAMAUCHI: No, not on a regular basis.

MR. SCHECK: Are you a regular reader of the scientific journal known as science?

MR. YAMAUCHI: I've read articles out of there too.

MR. SCHECK: Do you read that regularly?

MR. YAMAUCHI: No, I don't.

(Discussion held off the record between Defense attorneys.)

MR. SCHECK: Are you familiar with an organization called the American Academy of Sciences?

MR. YAMAUCHI: Yes.

MR. SCHECK: And if you join that organization, don't you get a regular subscription to the journal science?

MR. HARMON: Objection. That's irrelevant, your Honor.

THE COURT: Overruled.

MR. YAMAUCHI: No, I'm not a member.

MR. SCHECK: Okay. Now, in your training--withdrawn. Have you ever read the report of the California association of crime lab directors concerning proficiency tests that they ran in 1988 and 1989 on forensic DNA laboratories?

MR. YAMAUCHI: The CACLD?

MR. SCHECK: Yes. The CACLD study that involved open or involved proficiency tests, external proficiency tests for laboratories; namely cellmark, live codes, forensic science associates in 1988, 1989 and reports were published in years subsequent to that. Did you read any of those reports?

MR. YAMAUCHI: Something like that sounds familiar. I'd like to see that though if you have a copy.

MR. SCHECK: Well, do you recall reading anything, reading any of those reports at any time during the course of your training?

MR. YAMAUCHI: I'd have to see a copy to refresh my memory, if you have one.

MR. SCHECK: In the course of your training, did you read anything or were you told anything about how cellmark got two false positives in the CACLD tests?

MR. HARMON: Objection. Calls for hearsay. It's irrelevant.

THE COURT: Sustained.

MR. SCHECK: You testified on direct examination that you attend California Association of Criminalists meetings.

MR. YAMAUCHI: Yes.

MR. SCHECK: At the C--that's known as the CAC?

MR. YAMAUCHI: Yes.

MR. SCHECK: At CAC meetings, have you ever participated in any discussions about how false positives occurred on the CACLD tests for cellmark and forensic science associates?

MR. HARMON: Objection. Calls for hearsay.

MR. SCHECK: Just whether he--

THE COURT: Sustained. It's irrelevant.

MR. SCHECK: During the course of your training, were you ever--did you ever have any discussion or lectures about how false positives can occur at forensic DNA laboratories?

MR. YAMAUCHI: Yes.

MR. SCHECK: Did you endeavor to study how false positives can occur at forensic DNA laboratories?

MR. YAMAUCHI: To study it, well, it's all a part of your training. I mean, you have to know what causes a positive result and what doesn't and what makes it valid and what makes it questionable. Of course. That's very important.

MR. SCHECK: Very important. And in the course of pursuing this very important question, did you endeavor to find out how cellmark got two false positives in the CACLD tests?

MR. HARMON: Objection. It's irrelevant.

THE COURT: Sustained. It's a different technology, counsel.

MR. SCHECK: Did you endeavor to find out how--forensic science associates is a laboratory that does PCR testing?

MR. YAMAUCHI: Yes.

MR. SCHECK: Did you endeavor to find out how forensic science associates got a false positive in the CACLD tests?

MR. HARMON: Objection. That's irrelevant.

THE COURT: Overruled.

MR. YAMAUCHI: No, I didn't endeavor to find that out.

MR. SCHECK: But you agree that finding out how false positives occur is very important?

MR. YAMAUCHI: Certainly. When you're learning about the theoretical as well as the practical applications of PCR technology, you have to study these things.

MR. SCHECK: And you were aware during your training period that there had been a false positive on the CACLD tests for forensic science associates, a lab that uses PCR technology?

MR. HARMON: Objection. Irrelevant, calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: Were you aware of that?

MR. YAMAUCHI: No.

MR. HARMON: Same objection.

THE COURT: No.

MR. SCHECK: So you weren't even aware of it during your training period?

MR. YAMAUCHI: No.

MR. SCHECK: And your training period was in 1993?

MR. YAMAUCHI: Yes.

MR. SCHECK: And you did not endeavor to find out about the testing of CACLD and what results occurred, those tests occurring in 1988 and `89?

MR. YAMAUCHI: Once again, what you're referring to sounds familiar. I'd like to look at the article directly pertaining to that to refresh my memory.

MR. SCHECK: Did you hear Dr. Cotton testify about how false positives occurred at cellmark during the CACLD tests?

MR. HARMON: Objection.

MR. SCHECK: Did you hear that testimony in this courtroom?

MR. HARMON: Irrelevant, calls for hearsay.

THE COURT: Sustained. Sustained.

MR. SCHECK: In terms of your training about false positives occurring in a DNA laboratory, was there discussion about degraded samples being analyzed in the same place during the same period as the reference sample of a suspect?

MR. HARMON: Objection. Calls for hearsay.

THE COURT: Overruled. Was that part of your training?

MR. YAMAUCHI: In the same area--

MR. SCHECK: During the same period.

MR. HARMON: Objection. That's compound, your Honor.

THE COURT: Well, it's vague is what it is. Why don't you go ahead and restate the question.

MR. SCHECK: Did you receive any training with respect to false positives occurring with degraded samples being analyzed along with the reference sample of a suspect?

MR. HARMON: Objection. "Along with" is vague, your Honor.

THE COURT: Overruled.

MR. YAMAUCHI: A degraded sample--how--how would you know a sample is degraded if it's unknown or--you know, or do you know that it's a degraded sample? I don't--I'm not understanding your question fully. Do you take a--do you take something and do you degrade it?

MR. SCHECK: You don't understand my question?

MR. YAMAUCHI: No, I don't.

MR. SCHECK: Let me try to reformulate my question. Did you receive any training about false positives arising when samples that are degraded are analyzed--are examined, analyzed, cut along with blood in a reference tube from a suspect?

MR. YAMAUCHI: No, I never did.

MR. SCHECK: And in that vague recollection you have--

THE COURT: Counsel, start again.

MR. SCHECK: All right. You told us that you had a vague recollection of how false positives occurred during the CACLD study.

MR. YAMAUCHI: Yes. I like to reference that.

MR. SCHECK: And in terms of the recollections that you have now, did any of it involve a laboratory handling degraded samples along with the reference sample of a suspect?

MR. HARMON: Objection. "Along with" is vague and "Handling" is vague.

THE COURT: Sustained.

MR. SCHECK: When you did your proficiency tests, these external proficiency tests, did you have someone in the room witnessing each transfer of material?

MR. YAMAUCHI: Witnessing me do my work? No.

MR. SCHECK: In other words, actually writing down what samples you put at what tubes and what time.

MR. YAMAUCHI: No.

MR. SCHECK: Did you hear Dr. Cotton's testimony that during the CACLD proficiency test where they got a false positive, that there was actually a witness in the room looking at the transfer of materials and witnessing it?

MR. HARMON: Objection. It's irrelevant, calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: Were you told in your training that forensic DNA typing procedures are delicate?

MR. YAMAUCHI: I might have heard that word, but if you were more specific, maybe I could help you out.

MR. SCHECK: Were you told that it's easy to make a mistake and not be aware of it?

MR. YAMAUCHI: No, I wasn't.

MR. SCHECK: Were you told that other laboratories had made false positive mistakes and still can't figure out how it happened?

MR. HARMON: Objection. Calls for hearsay.

THE COURT: Sustained.

MR. SCHECK: Were you told in your training that it's more important to be careful and reliable when doing DNA typing than to rush and make mistakes?

MR. HARMON: Objection. It's vague, calls for hearsay.

THE COURT: Overruled.

MR. YAMAUCHI: I think that takes common sense. Anybody can see that.

MR. SCHECK: Were you told that in your training?

MR. YAMAUCHI: Specifically, I don't remember if I was told in those words.

MR. SCHECK: Were you--

THE COURT: Proceed.

MR. SCHECK: One last question in this line. Were you told in your training that it is the job of a criminalist to be independent of the police and to resist pressure to rush analysis that would compromise your work?

MR. YAMAUCHI: Again, that's a common-sense question. You never want to rush your work or do anything at all that could compromise the integrity of your work.

MR. SCHECK: And was there discussion or emphasis in your training that it was important for criminalists to resist pressure from police to do work faster than the criminalists believes it can be safely and reliably done?

MR. HARMON: Objection. Compound, irrelevant.

THE COURT: It's compound. Rephrase the question.

MR. SCHECK: Was there any emphasis in your training that it was important for a criminalist on occasion to resist pressure from police to do work in a rush?

THE COURT: Isn't that the same question we asked a moment ago? You said you had one more question on that line. This is about three more.

MR. SCHECK: Well, this is it.

MR. SCHECK: Was that emphasized in your training?

MR. YAMAUCHI: I think I just answered that.

MR. SCHECK: And what's your--and your answer is, it's just common sense, but you don't recall anybody specifically stressing that?

MR. YAMAUCHI: Well, Mr. Matheson would have told me that because he told me that for conventional testing, that not to let anybody rush you into doing something that you can't do.

MR. SCHECK: Okay. On the afternoon of June 13th, Mr. Matheson chose you to do the DNA analysis in this case?

MR. YAMAUCHI: 13th? Yes.

MR. SCHECK: But you were not the most experienced DNA in the lab.

MR. HARMON: Objection. That's irrelevant.

THE COURT: Overruled.

MR. YAMAUCHI: Well, at that time, he didn't know whether it was just going to be a DNA case or whether it involved other aspects of conventional serology of which I had more experience.

MR. SCHECK: My question to you, sir, was simply, you were not the most experienced DNA analyst in the lab, were you?

MR. YAMAUCHI: No.

MR. SCHECK: Thank you. Erin Reilly had more experience in doing PCR testing than you did?

MR. YAMAUCHI: Yes, she did.

MR. SCHECK: Harry Klan had more experience doing RFLP testing than you did?

MR. YAMAUCHI: Yes, he did.

MR. SCHECK: And on the afternoon of June 13th, when you were assigned to this case, you knew there was intense police interest in this matter?

MR. YAMAUCHI: On when?

MR. SCHECK: The afternoon of June 13th.

MR. YAMAUCHI: 13? Well, I know it was a high profile case and, you know, I really didn't have that much information at that point.

MR. SCHECK: Uh-huh. So you didn't know at that point whether the District Attorney's office had an intense interest in this case?

MR. HARMON: Objection. It's irrelevant, calls for speculation, hearsay.

THE COURT: Sustained.

MR. SCHECK: When you were assigned this case on the afternoon of June 13th, did you not feel that you had just been given a very big responsibility?

MR. HARMON: Objection. That's irrelevant.

THE COURT: Overruled.

MR. YAMAUCHI: I wasn't sure how involved or important the serology was going to end up being because I didn't know anything about what was at the scenes or any specifics.

MR. SCHECK: Well, you knew in your words that it was a high profile case?

MR. YAMAUCHI: Building up to be one, yeah.

MR. SCHECK: You knew that right away when you were first assigned to it?

MR. YAMAUCHI: When Mr. Matheson asked me, yes.

MR. SCHECK: And that made you nervous, didn't it?

MR. YAMAUCHI: Well, not really because I didn't know what it was all going to entail.

MR. SCHECK: All right. Now let's move to the morning of June 14th. Did you meet that morning with Mr. Matheson, Mr. Fung and Detective Lange any time that morning?

MR. HARMON: Objection. That's compound.

THE COURT: Sustained.

MR. SCHECK: Did you attend a meeting at 7:00 o'clock in the morning with Detective Lange, Mr. Matheson and Mr. Fung?

MR. YAMAUCHI: To my recollection, I remember talking to Greg in the morning.

MR. SCHECK: You did not see Detective Lange at 7:00 o'clock in the morning with a pair of sneakers have a--be present during a conversation with him and Mr. Fung, Mr. Matheson?

MR. HARMON: Objection. That calls for speculation.

THE COURT: Rephrase the question.

MR. SCHECK: Do you recall a meeting 7:00 o'clock or early in the morning of June 14th where Detective Lange was present?

MR. YAMAUCHI: Detectives often come in and out of serology. I'm--I'm not sure if he was there or not.

MR. SCHECK: Are you telling us, sir, that you have no recollection whatsoever of seeing Detective Lange in the SID laboratory on the morning of June 14th at any time?

MR. YAMAUCHI: I'm telling you I just don't remember.

MR. SCHECK: Don't remember him there with a pair of white sneakers?

MR. HARMON: Objection. Asked and answered.

THE COURT: Overruled.

MR. YAMAUCHI: No. I don't--

MR. SCHECK: I'm sorry.

MR. YAMAUCHI: I don't remember whether he was there or not.

MR. SCHECK: See if I can refresh your recollection. Do you remember him having any discussions with Mr. Matheson?

MR. HARMON: Objection. Asked and answered.

THE COURT: Overruled.

MR. YAMAUCHI: I don't remember.

MR. SCHECK: Do you remember seeing Detective Lange engaged in any conversations with Mr. Fung?

MR. YAMAUCHI: I--I've--I can recall him talking to Mr. Fung on certain occasions, but I don't know specifically of that day I saw them talking or if they were there. I--my recollection isn't all that great.

THE COURT: Let's move on.

MR. SCHECK: On the morning of June 14th, you recall speaking first about this case with Mr. Matheson?

MR. YAMAUCHI: Yes.

MR. SCHECK: And your recollection now is that Mr. Fung was not present at that conversation?

MR. YAMAUCHI: Yes. I remember him telling me to go see Dennis, discuss samples.

MR. SCHECK: I'm asking you whether Mr. Fung was present at the time that you were speaking with Mr. Matheson first thing in the morning.

MR. YAMAUCHI: I don't remember.

MR. HARMON: Objection. "First thing in the morning" is vague.

THE COURT: Overruled.

MR. SCHECK: And have you reviewed Mr. Matheson's notes as to the chronology of events on the morning of June 14th?

MR. YAMAUCHI: No.

MR. SCHECK: Prosecutors shown you or told you about his notes with respect to the chronology of events on June 14th?

MR. HARMON: Objection. Asked and answered. Calls for hearsay.

THE COURT: Overruled.

MR. YAMAUCHI: No.

MR. SCHECK: Have you discussed with Mr. Matheson at any time prior to coming in here and testifying the chronology of events on the morning of June 14th?

MR. YAMAUCHI: No.

MR. SCHECK: Did you watch Mr. Matheson testify or hear him testify about the chronology of events on June 14th?

MR. YAMAUCHI: I saw a lot of his testimony, but I don't remember that.

MR. SCHECK: Did you watch Mr. Fung's testimony with respect to the chronology of events on the morning of June 14th?

MR. YAMAUCHI: Yes.

MR. SCHECK: Did you watch Miss Mazzola's testimony with respect to the chronology of events on the morning of June 14th?

MR. YAMAUCHI: No.

MR. SCHECK: Now, in your first conversation with Mr. Matheson on the morning of June 14th, were you not told that the detectives were in a hurry to get DNA testing results?

MR. HARMON: Objection. Calls for hearsay.

THE COURT: Overruled.

MR. YAMAUCHI: They needed information from the laboratory. I don't remember anybody talking specifically DNA.

MR. SCHECK: Well, when you had a conversation with Mr. Matheson on the morning of June 14th, were you not informed that you were supposed to be doing DNA testing?

MR. YAMAUCHI: No. Actually, he discussed potential conventional testing and said that what they needed was something that could be--act as kind of a screen, something that could possibly eliminate somebody quickly or possibly include somebody.

MR. SCHECK: Did you reach a decision early in the morning with Mr. Matheson to conduct DNA testing, PCR DNA testing?

MR. YAMAUCHI: I told him I thought that PCR DQ-Alpha would be the best for that purpose.

MR. SCHECK: And you were told--well, withdrawn. Did you and Mr. Matheson discuss the need to do that PCR DNA testing very quickly?

MR. YAMAUCHI: Well, yes. There was mention that the results were very important to them, and as soon as possible, they would need them.

MR. SCHECK: Who's the "Them"?

MR. YAMAUCHI: That--

MR. HARMON: Objection. Calls for speculation. It's hearsay.

THE COURT: Rephrase the question.

MR. SCHECK: You just said "Them," "Important to them." Who did you mean by "Them"?

MR. YAMAUCHI: The investigating officers.

MR. SCHECK: Detective Lange?

MR. YAMAUCHI: I'm not real sure if at that point, I knew who the investigating officers were.

MR. SCHECK: Were you told by Mr. Matheson that the investigating officers wanted these results in a hurry?

MR. YAMAUCHI: They put a lot of importance on it. I don't know if anybody used the word hurry.

MR. SCHECK: On direct examination, I think you used the words "Very quickly."

MR. YAMAUCHI: I might have.

MR. SCHECK: Would it be fair to say that this was sort of conveyed to you that this was what might be called a rush job?

MR. HARMON: Objection. It calls for speculation.

THE COURT: Overruled.

MR. HARMON: It's also argumentative.

THE COURT: Do you know what a rush job is?

MR. YAMAUCHI: Considering the importance--yes. Well--in a certain expect like well, if you're working on something else, could you work on this case right now.

MR. SCHECK: Drop everything else and do this as fast as humanly possible. Is that the impression you got?

MR. HARMON: Objection. That's argumentative.

THE COURT: Overruled.

MR. YAMAUCHI: As fast as humanly possible? Well, more like within the perimeters of the scientific technology and the technique.

MR. SCHECK: And you then had conversations with Mr. Fung that morning?

MR. YAMAUCHI: Yes.

MR. SCHECK: In the evidence processing room?

MR. YAMAUCHI: Yes.

MR. SCHECK: And he described the evidence to you?

MR. YAMAUCHI: Yes.

MR. SCHECK: And he told you about information that he had obtained from the detectives at robbery-homicide?

MR. YAMAUCHI: Yes.

MR. SCHECK: And he told you that it was important to get DNA typing results on the Bundy blood drops fast?

MR. YAMAUCHI: No.

MR. SCHECK: As soon as possible?

MR. YAMAUCHI: I don't really remember.

MR. SCHECK: Quickly?

MR. YAMAUCHI: I don't recall if Dennis told me anything like that or not.

THE COURT: All right. Mr. Yamauchi, were you under the impression this was a priority matter?

MR. YAMAUCHI: Yes.

THE COURT: All right.

MR. YAMAUCHI: That's the bottom line.

THE COURT: I think we've established that.

MR. SCHECK: Were you told to get DNA results as soon as you could on the glove recovered from Rockingham?

MR. YAMAUCHI: I think to speed things up, the whole thing was kind of like a priority matter.

MR. SCHECK: Were you told by anyone in the laboratory on June 14th--withdrawn. Did Greg Matheson tell you on the morning of June 14th, "Mr. Yamauchi, don't be in a rush here. Just be careful"?

THE COURT: It's argumentative, counsel.

MR. SCHECK: Did he tell you to be careful and make sure you didn't do these tests too quickly? Did he say that?

MR. YAMAUCHI: Nobody gave me any deadlines as to, "We want you to have results by here, here, here," or anything like that. There was a priority put on it. And if anything, Greg would have told me to work within my own perimeters of what I know is possible and to--above all, it's--for all of us as criminalists, make sure you do a good job.

MR. SCHECK: Mr. Yamauchi, my question to you is not what he would have told you. I'm asking you, to the best of your recollection, what he did tell you. Did he tell you to be careful and take your time to get it right?

MR. HARMON: Objection. Asked and answered. Argumentative.

THE COURT: Sustained. We've spent enough time on this.

MR. SCHECK: Last point that I think is new.

THE COURT: Better be.

MR. SCHECK: It is.

MR. SCHECK: Did anybody tell you to get DNA results on the Bundy blood drops and the glove within one day?

MR. YAMAUCHI: No.

MR. SCHECK: That was your idea?

THE COURT: It's argumentative, counsel.

MR. SCHECK: Was that your idea?

MR. YAMAUCHI: Well, I knew if I worked after hours, I could complete the process. So yes, that was my idea.

MR. SCHECK: So at the beginning of the morning, you had set a goal for yourself that you would be able to process the Bundy blood drops and the glove in one day?

MR. HARMON: Objection. It's argumentative, misstates his testimony.

THE COURT: Overruled.

MR. YAMAUCHI: Well, I knew that I would have some kind of interpretable results by that time period. But the whole process wouldn't have been complete. There still would have been product gel that would have had to have been done at a later point.

MR. SCHECK: Did you set a goal for yourself that you would be able to get typing results off the strips on the Bundy blood drops and the glove in one day?

MR. YAMAUCHI: Yes. That was my intention.

MR. SCHECK: And that was a goal you set for yourself and nobody else told you to do it within that deadline?

MR. YAMAUCHI: It wasn't like it was a goal or anything. I--I knew that if I worked beyond normal working hours, I would have enough time to do that in the same fashion I always do it.

MR. SCHECK: Now, before going through you--withdrawn. Before going through with you what you did on the morning of June 14th step by step, I'd like to just review with you what you did as a whole, okay? On June 14th, you received the specimens from the Bundy blood drops--withdrawn. On June 14th, you received specimens, completed PCR amplification and obtained results in one day on 23 samples?

MR. YAMAUCHI: Can I refer to my notes?

MR. SCHECK: Yes.

MR. YAMAUCHI: Okay.

MR. SCHECK: And refer you to your amplification records and hybridization records. One day, 23 samples.

(Brief pause.)

MR. YAMAUCHI: I did 19.

MR. SCHECK: I'm talking about June the 14th.

MR. YAMAUCHI: Yes. I analyzed 19 casework samples.

MR. SCHECK: Can I take a look at those?

(Brief pause.)

MR. YAMAUCHI: That's what you're talking about, right?

MR. SCHECK: I'm asking you to look at your DNA amplification and hybridization sheets. I'm talking about the specimens, the controls, the reference samples, all that's involved in doing a PCR amplification run. Didn't you create 23 separate samples and tubes to analyze on June 14th before you reported results?

MR. YAMAUCHI: Yeah. It would be 23.

MR. SCHECK: 23. Yes?

MR. YAMAUCHI: Let me check for sure, but that sounds correct. (Brief pause.)

MR. YAMAUCHI: Yes.

MR. SCHECK: And on June 15th, the next day, you received specimens--withdrawn. And just so we're clear, the evidence items involved on June 14th were the Bundy blood drops, items 47, 48, 49, 50 and 52, correct?

MR. YAMAUCHI: Yes.

MR. SCHECK: Two what you're calling exemplars, that is, bloodstains that were believed to come from both victims in this case?

MR. YAMAUCHI: Well, at that point in time, there were no exemplars available. So--

MR. SCHECK: What I mean by exemplar, sir, is that you were given two bloodstains, one--

MR. HARMON: Your Honor, objection. He cut off his answer there. He wasn't done.

MR. SCHECK: I'm just trying to clarify, your Honor.

MR. HARMON: He still cut him off.

THE COURT: Proceed.

MR. SCHECK: You received a bloodstain that Mr. Fung told you was believed to be an exemplar or blood from Nicole Brown Simpson?

MR. YAMAUCHI: Well, because we didn't have exemplars at the time, that was to act in lieu of it, to give any possible information it might.

MR. SCHECK: Yes. And so you even put down in your notes you were using it as an exemplar for Miss Nicole Brown Simpson on June 14th?

MR. YAMAUCHI: Let me check my notes.

(Brief pause.)

MR. YAMAUCHI: Well, no. Actually my notes specifically state, "Male victim, exemplar off tree stump, female, best sample exemplar, concrete," and then in bracket, "These samples not true exemplars."

MR. SCHECK: They're not true exemplars because they're not actually blood from the Coroner's office, right?

MR. YAMAUCHI: Right. Because we didn't have it at that time.

MR. SCHECK: Right. But as far as you were concerned, you were taking these two samples because Mr. Fung told you that they felt certain that the blood on one of those items could be used as an exemplar for Miss Nicole Brown Simpson because--is that right?

MR. HARMON: Objection. That's compound, calls for speculation, hearsay.

THE COURT: Overruled.

MR. YAMAUCHI: I'm sorry. Could you please start over again?

MR. SCHECK: You told--

THE COURT: Counsel, wait. He read his notes. It's used in place of an exemplar. The jury's heard the testimony. Let's move on.

MR. SCHECK: Well, you knew that these two exemplars were sam--being used as samples from the victims?

MR. YAMAUCHI: Well, until we got the real exemplars, yes, that was their purpose, to act in that--on behalf of what would be the best possible exemplar.

MR. SCHECK: And that was being done at the same time as the Bundy blood drops on June 14th?

MR. HARMON: Objection. "Being done at the same time" is vague.

THE COURT: Overruled.

MR. SCHECK: That was part of your 23 samples?

MR. YAMAUCHI: It was in that group, yes.

MR. SCHECK: And also within those 23 samples was blood from the reference tube of Mr. Simpson?

MR. YAMAUCHI: Yes.

MR. SCHECK: Now, on June 15th, you received specimens, completed PCR amplification and obtained results on 19 different samples?

MR. YAMAUCHI: Yes. On the 15th, counting the controls and everything, 19.

MR. SCHECK: And you did all those in one day, June 15th?

MR. YAMAUCHI: Yes. I got through the hybridization step in that time period.

MR. SCHECK: You received the samples, you cut them, you did PCR extraction and you did typing on the strip so that you could report results by the end of the day on all 19 of those?

MR. YAMAUCHI: Well, I couldn't report the results till all the other things were in place and everything was looked at and written out. But I would have results available for interpretation.

MR. SCHECK: The evening of June 15th, you called Greg Matheson and gave him results on those 19 samples based on the PCR typing strips?

MR. YAMAUCHI: Yes. I told him what I got up to that poison.

MR. SCHECK: The only thing that was missing, as far as the way you did this, was the PCR product gel, right?

MR. YAMAUCHI: Yes.

MR. SCHECK: Now, was it part of your training to avoid analyzing a large number of samples in a short period of time because that can increase the chance of inadvertent cross-contamination and mix up?

MR. YAMAUCHI: Well, if you're referring to this case, I didn't do it in a short period of time. I did it in--

MR. SCHECK: Mr. Yamauchi--

MR. YAMAUCHI: --quite a big block of time.

THE COURT: Wait, wait. No. You don't get to cut off the answer.

MR. SCHECK: Move to strike. Nonresponsive.

THE COURT: Overruled. Let him finish the answer.

MR. YAMAUCHI: Yes, because I went way beyond what a normal workday is in order to complete those steps.

MR. SCHECK: Move to strike, not responsive. I asked him about his training, only his training.

THE COURT: You're asking about the short period. Overruled. Proceed. Proceed.

MR. SCHECK: In your training, were you taught to avoid analyzing a large number of samples in a short period of time because that can increase the chance of inadvertent cross-contamination and mix-up?

MR. YAMAUCHI: You know, I don't know in those words if that was ever said to me.

MR. SCHECK: Are you familiar with the amplitype user guide?

THE COURT: Why don't you just ask him if he agrees with that concept.

MR. SCHECK: No. I would like to show him the actual user guide. He said he didn't have anything in his training.

THE COURT: We're talking about common sense things here and we're spending a lot of time on it.

MR. SCHECK: Your Honor, we are talking about basic points of training. That's correct.

THE COURT: All right. So let's proceed.

MR. SCHECK: We're trying to establish with the witness what a basic point of training is.

THE COURT: Proceed. Proceed.

MR. SCHECK: Did you review in the amplitype user guide--withdrawn. In your training, did you review special precautions that are included in the amplitype user guide?

MR. YAMAUCHI: Yes. I've read through that entire user guide.

MR. SCHECK: And you studied it?

MR. YAMAUCHI: Yes.

THE COURT: And you rely upon it.

MR. YAMAUCHI: Well, that along with another book, which would be our own protocol and procedure manual, and a lot of other journal articles and experience to make up my opinions, if that's what you're asking.

MR. SCHECK: Okay. May I approach the witness?

THE COURT: You may.

MR. HARMON: May I see that section?

THE COURT: Counsel, I assume you have that as well. Proceed.

MR. SCHECK: And you're familiar with the section of the user guide entitled "Special precautions"?

MR. YAMAUCHI: Yes.

MR. SCHECK: And are familiar with paragraph 14 of the section on "Special precautions"?

MR. YAMAUCHI: Yes.

MR. SCHECK: And do you rely on that paragraph?

MR. YAMAUCHI: Yes. I would agree with that.

MR. SCHECK: And does not that paragraph state that you should limit the quantity of samples handled in a single run to a manageable number, approximately 15, "This precaution will reduce the risk of sample mix up and the potential for sample-to-sample contamination"?

MR. YAMAUCHI: Yes. And I think 23 is a reasonably close number to 15.

MR. SCHECK: You do?

MR. YAMAUCHI: Yes, I do.

MR. SCHECK: It's two minutes.

THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all of my admonitions to you; do not discuss this case amongst yourselves, do not form any opinions about the case, do not allow anybody to communicate with you with regard to the case, do not conduct any deliberations until the matter has been submitted to you. As far as the jury is concerned, we will stand in recess until Monday morning at 10:00 A.M.--Tuesday morning 10:00 A.M. and I want counsel here at 9:00 A.M. all right. We'll stand in recess. Ladies and gentlemen, have a pleasant weekend. Mr. Yamauchi, you are excused, ordered to come back 8:45 on Tuesday. Enjoy your activities. All right.

(Pages 29702 through 29704, volume 155a, transcribed and sealed under separate cover.)

(The following proceedings were held at the bench:)

MR. SCHECK: With respect to these validation records--

THE COURT: Which we asked Mr. Yamauchi to go over over the weekend.

MR. SCHECK: Yes. I just want to make one point so it's very clear. I expect to--Mr. Harmon yesterday, at the time we were about to begin the cross-examination and I told him about the boards and I also said to him that there were certain pages from the discovery material that I wanted to review with Mr. Yamauchi and make sure that it was correct, he told me that he didn't want that happening, he had to go review with Mr. Yamauchi his testimony over lunch and he declined that invitation. And I noticed that when they turned over these validation studies, they gave us the code on what the samples were.

THE COURT: Mr. Scheck, this witness is just very cautious. He's not going to commit to anything unless he can confirm it in his own notes. That's the only problem.

MR. SCHECK: I have no quarrel with the witness confirming that. My only point is simply this. This is what's been turned over to me in discovery. All I can go on is what they give me. They give me validation studies. They give me a code. We look at the analysis sheets. We compare it to the samples. There are discrepancies. I have to go through it.

THE COURT: I understand that. But you weren't going to get the right foundational answer out of that witness until he looked in his own notebook. That's the bottom line.

MR. SCHECK: I'm not quarreling. I just want that material here.

THE COURT: No. I understand that. That's the problem. And I instructed him to over the weekend get those records confirmed. We'll come back and see if there are two discrepancies. Not a problem. Have a nice weekend.

(At 12:00 P.M., an adjournment was taken until, Tuesday, May 30, 1995, 9:00 A.M.)

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

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

The People of the State of California,)

Plaintiff,)

Vs.) no. BA097211)

Orenthal James Simpson,)

Defendant.)

Reporter's transcript of proceedings Friday, May 26, 1995

Volume 155 pages 29576 through 29706, inclusive

(Pages 29702 through 29704, inclusive, sealed)

-------------------------------------------------------------------------------------------

APPEARANCES:

Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters

FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012

FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire

-------------------------------------------------------------------------------------------

I N D E X

Index for volume 155 pages 29576 - 29706

-------------------------------------------------------------------------------------------

Day date session page vol.

Friday May 26, 1995 A.M. 29576 155

-------------------------------------------------------------------------------------------

LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n

-------------------------------------------------------------------------------------------

CHRONOLOGICAL INDEX OF WITNESSES

PEOPLE'S witnesses direct cross redirect recross vol.

Yamauchi, Collin 29618bs 155

-----------------------------------------------------

ALPHABETICAL INDEX OF WITNESSES

Witnesses direct cross redirect recross vol.

Yamauchi, Collin 29618bs 155

-------------------------------------------------------------------------------------------

EXHIBITS

DEFENSE for in exhibit identification evidence page vol. Page vol.

1181-A - 1-page document 29634 155 entitled "PCR method validation - training record"

1181-B - 1-page document 29634 155 entitled "LAPD mock vaginal swabs"

1181-C - 1-page document 29634 155 entitled "DNA hybridization record" hyb-33

1181-D - 1-page document 29634 155 entitled "DNA hybridization record" hyb-34 training record"

1181-E - 1-page document 29645 155 entitled "DNA hybridization record" hyb-35 training record"

1182 - 1-page document 29662 155 entitled "DNA hybridization record"