Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Good morning, counsel.
MR. COCHRAN: Good morning, your Honor.
MR. SHAPIRO: Good morning, your Honor.
THE COURT: Back on the record in the Simpson matter. Mr. Simpson is again present before the Court with his counsel, Mr. Shapiro, Mr. Cochran, Mr. Blasier, Mr. Scheck. The People are represented by Miss Clark, Mr. Darden and Mr. Harmon. The jury is not present. Counsel, there were some issues left unresolved that we were going to discuss further this morning; however, when I came in this morning I found that the transcript of our last proceedings in chambers was not available to me, and it is my proposal that we continue with the cross-examination of Mr. Yamauchi and take up those matters later when the transcript is available. Any comment?
MR. COCHRAN: Just--thank you, your Honor. And we have no problem with that, your Honor, and I understand that that may take perhaps the rest of the day and part of tomorrow to finish the testimony with Messers. Yamauchi and Sims, and we can then launch into those matters at that time. We have no objection to that.
THE COURT: I take it that is agreeable to the People? Miss Clark.
MS. CLARK: Yes, your Honor, it is.
THE COURT: Thank you. All right. Deputy Magnera, let's have the jurors, please.
MR. HARMON: Your Honor, one point.
THE COURT: Certainly. Good morning, sir.
MR. HARMON: Good morning, your Honor. The other day Mr. Scheck had some records marked and you recall Mr. Yamauchi was going to review them over the weekend.
THE COURT: Yes, I recollect.
MR. HARMON: And now that we've had a chance to review them over the weekend, I would like to point out the irrelevance of the mock vaginal swabs. I think in the examination of Mr. Simpson Mr. Scheck was waxing eloquent about different extractions separating sperm from epithelial cells and you cut him off at one point because we don't have any of that kind of evidence in this case. And I just alert the Court that should Mr. Scheck persist in his questioning about these mock vaginal swabs, this jury will hear in very elaborate detail that when you try to separate the male and the female cells in these vaginal swabs it is not always perfect. Sometimes you get a type from the sperm and the epithelial cell sample, and vice versa, and in fact, that is what these mock vaginal swabs that are represented in Defendant's exhibit 1181 reflect, the fact that the separation isn't perfect, but that you do get a type sometimes from the male and the female sample. And I just point that out as a foundational matter because I think we are getting into irrelevant areas that have nothing to do with the testing in this case.
THE COURT: Well, wasn't the issue the performance of validation tests or proficiency tests? Wasn't that the issue, the correct or incorrect answers?
MR. HARMON: Yes, but the question of what is correct and incorrect when you are dealing with a vaginal swab and when you are seeing a type that is from the male or the female in the opposite sample. There were two separate exhibits. One of them had to do with proficiency tests, which I'm not going to address now, and the other one is the exhibit 1181 that this is a sexual assault type evidence where this differential extraction where you attempt to separate the types is important. And it is not a question of whether they are incorrect. It is a question of whether or not what you are seeing could be from the sperm source on the one hand or the epithelial cells on the other hand. And I just point that out to the Court, that--
THE COURT: That I should anticipate a 352 objection. Is that what you are saying?
MR. HARMON: Yes, your Honor.
THE COURT: Mr. Scheck, good morning, sir.
MR. SCHECK: Good morning. Naturally we are aware that sometimes differential extractions are not complete and we are not going to be questioning Mr. Yamauchi on any of those results which could reflect carry-over from the differential extraction. That is to say that you may get some of the sperm cells in the epithelial fraction and vice versa has been identified on this test by their own readings and their own results are two mistakes that cannot be accounted for in that fashion, and that is the point. The point is that they did validation studies, they said they made no mistakes, and by their own--their own recorded results, they made mistakes. Now that it seems apparent from--the tenor of Mr. Harmon's remarks that they are going to concede that the code sheet does in fact go with these two sheets and that will be it and it will be simple. And if Mr. Harmon can explain those two mistakes by carry-over, I will be quite amazed.
THE COURT: Sounds like three questions to me.
MR. SCHECK: If I were the truly artful lawyer it would be three questions. In my case maybe it will be five.
THE COURT: That is just sort of the Court's expression that there is limited value to that evidence, so let's not spend a lot of time on it.
MR. SCHECK: Well, I'm saying--we think it is important. It is an error.
THE COURT: I agree, the testing and the proficiency testing, but getting into what it is and how it works and blah, blah, blah--
MR. SCHECK: Is not good for any of us.
THE COURT: The blah, blah, blah I'm not interested in. Thank you. Let's have the jurors.
MR. COCHRAN: Judge, may Marcia--Miss Clark and I approach for a second?
THE COURT: With the reporter?
MR. COCHRAN: No, without the reporter.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: All right. Thank you, ladies and gentlemen. Please be seated. All right. Let the record reflect we have been rejoined by all the members of our jury panel. Good morning, ladies and gentlemen.
THE JURY: Good morning.
THE COURT: 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, sir, that you are still under oath. And Mr. Scheck, you may continue with your cross-examination.
MR. SCHECK: Thank you very much. Good morning, ladies and gentlemen of the jury.
THE JURY: Good morning.
CROSS-EXAMINATION (RESUMED) BY MR. SCHECK
MR. SCHECK: Good morning, Mr. Yamauchi. I trust you had a good memorial day weekend?
MR. YAMAUCHI: Yes, I did. Good morning.
MR. SCHECK: Over that memorial day weekend, sir, were you able to go back to your lab and compare the code sheet for the mock vaginal swab validation studies with the hybridization sheets that I showed you on Friday?
MR. YAMAUCHI: Yes, I was.
MR. SCHECK: All right. And did in fact the mock vaginal swab code sheet that I showed you go with those hybridization records?
MR. YAMAUCHI: Yes.
MR. SCHECK: Do you have your records of those there?
MR. YAMAUCHI: No, I don't.
MR. SCHECK: Okay. And in reviewing that, with respect to item no. 1 from the mock vaginal swab case study, the sperm fraction on that sperm study was supposed to be a 1.2, 3; is that correct?
MR. YAMAUCHI: I don't have it in front of me, but--
MR. SCHECK: Sure.
(Brief pause.)
MR. YAMAUCHI: Yes.
MR. SCHECK: And in fact when you typed it, you typed it as a 1.2, 4?
MR. YAMAUCHI: That is what was the result, but let me explain this here--
MR. SCHECK: Well, did you just--
MR. HARMON: Objection. Objection, your Honor. He cut him off.
THE COURT: Let him finish think answer.
MR. SCHECK: Excuse me, your Honor. I simply asked him did he type it as a 1.2, 4? Yes or no.
THE COURT: Mr. Yamauchi, would you answer that question, please.
MR. YAMAUCHI: Yes. Could I explain, please?
THE COURT: You will have the opportunity to explain?
MR. YAMAUCHI: Okay. Umm--
THE COURT: Hold on. Next question.
MR. SCHECK: And that is not the correct typing, is it?
MR. YAMAUCHI: That is not the typing that the sperm fraction was meant to indicate.
MR. SCHECK: Right.
MR. YAMAUCHI: But it is--the result is acceptable.
MR. SCHECK: Well, before you explain why you believe the result is acceptable, why don't we first get some facts on the table. You--you typed this as a 1.2, 4, correct?
MR. HARMON: Objection, asked and answered.
THE COURT: Overruled.
MR. YAMAUCHI: On the SC fraction--yeah, actually both of them came back to reflect those results.
MR. SCHECK: All right. In fact, why don't we at this point, your Honor, put--
THE COURT: No. Let's just proceed with the two results.
MR. SCHECK: Can I put it on the elmo?
THE COURT: Let's not take the time to do it right now. Ask him about the two results.
MR. SCHECK: If you look at the typing sheet, the hybridization strip for the sperm fraction, there is no 1.3 visible, is there?
MR. YAMAUCHI: Well, I have looked at the better photographs, not this copy, and I didn't see anything there.
MR. SCHECK: Right. So when you looked at the better copy, you saw no. 1.3 visible, correct?
MR. YAMAUCHI: That is correct.
MR. SCHECK: So when you look at the typing sheet, the only visible results you could see for the sperm fraction were a 1.2, 4; is that right?
MR. YAMAUCHI: That's the carry-over from the epithelial cell fraction, yes, that's correct.
MR. SCHECK: But the sperm fraction, that is supposed to be sperm DNA that has a genotype of 1.2, 1.3?
MR. HARMON: Objection. That is argumentative, your Honor.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: The sperm fraction on the mock vaginal code sheet indicates that the DNA in that fraction should typed as a 1.2, 1.3, correct?
MR. YAMAUCHI: If the concentration of the sperm cells were high enough to be detected, then yes, that would be the type that I would expect.
MR. SCHECK: Okay.
MR. YAMAUCHI: But since they were not, the only detectable types there were that from the epithelial cell fraction which spilled over into the sperm cell fraction.
MR. SCHECK: Under that you are saying there is carry-over, but let's just get to the facts. The fact is on the sperm fraction--
MR. HARMON: Objection, your Honor.
THE COURT: Sustained. That is argumentative.
MR. SCHECK: Well, Mr. Yamauchi, the correct--the expected answer here is a 1.2, 1.3; is that correct?
MR. HARMON: Objection. "Expected" is argumentative.
THE COURT: Overruled. It is on the code sheet.
MR. YAMAUCHI: There are no expected answers. That were the types of the cells that were put on this, but as I was saying earlier in Friday's testimony, these were made out to be challenging, somewhat similar to what we would get in a case work sample. And in case work sample there are not always enough of the sperm cells in order to get the typing off of them, so we wanted to reflect somewhat similar situations in our validation procedure and make the samples challenging. And in this case it was in line with what I would expect if I had somewhat similar samples in case work, where the female's type would show up and then you would not get any typing from the male fraction. That quite often happens. It involves mixtures. It is inherent in sexual assault cases to have mixtures which will reflect both the type of the male and the female, one or the other or, you know, some combination thereof.
MR. SCHECK: Are you finished?
MR. YAMAUCHI: Yes, I am.
MR. SCHECK: All right. Now, would you please answer the question. The question is--
MR. HARMON: That is argumentative.
THE COURT: It is. Rephrase the question, counsel.
MR. SCHECK: Would you answer this question, Mr. Yamauchi:
MR. HARMON: Your Honor, I object. I object to that. That is argumentative.
THE COURT: Sustained.
MR. SCHECK: The mock sample--the mock sample, Mr. Yamauchi, indicates that the sperm fraction has a 1.2, 1.3, correct? Yes or no?
MR. YAMAUCHI: Listed on that sheet, yes, it does.
MR. SCHECK: You typed a 1.2, 1.4? Yes or no?
MR. YAMAUCHI: That was the result I obtained.
MR. SCHECK: Now, anywhere on your sheets do you indicate that the 1.2, 4 was not the result that was expected, according to the mock vaginal swab code sheet? Is that anywhere in your reports?
MR. YAMAUCHI: You said "Expected," and once again, we are dealing with--
MR. SCHECK: I said expected according to the code sheet?
THE COURT: Wait, wait, wait. Don't interrupt the witness.
MR. SCHECK: Your Honor, he is not being responsive.
THE COURT: No, counsel. Don't interrupt the witness. The problem is, he doesn't like the terminology "Expected results." The issue is, is the result that the code sheet reflects in his report? The answer to that question from the testimony so far has been no. I understand there is a second such result.
MR. SCHECK: Your Honor, let's just stick with this one.
THE COURT: Well--
MR. SCHECK: Your Honor, my question--
THE COURT: Counsel, counsel, my question--
MR. SCHECK: My question, most respectfully, was as expected on the code sheet, so let me rephrase it to make it crystal clear.
THE COURT: Take out the word "Expected."
MR. SCHECK: The result you got, 1.2, 4 for the sperm fraction, was not the result listed on the code sheet which was 1.2, 1.3, right?
MR. YAMAUCHI: No. I got a 1.2, 4 there.
MR. SCHECK: Right. So wasn't the result that was listed as the sperm fraction on the code sheet correct?
MR. YAMAUCHI: That is the type of the sperm cells that were placed on the swabs.
MR. SCHECK: Is that correct, Mr. Yamauchi? Can you answer that question yes or no?
MR. HARMON: Your Honor, your Honor--
THE COURT: Sustained. Mr. Scheck, why don't you take the podium.
MR. SCHECK: Mr. Yamauchi, anywhere in your sheets for this mock vaginal swab study in your sheets do you indicate that the typing result you got from the sperm fraction 1.2, 4 does not match the code sheet typing of 1.1--1.2, 1.3? Do you indicate that anywhere.
MR. HARMON: Objection. Objection. Asked and answered, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: Okay. I'm sorry. One more time.
MR. SCHECK: Do you indicate on your hybridization records, or any other form you filled out on this mock vaginal swab test, that the typing you got of 1.2, 4 for the sperm fraction is not the same as the 1.2, 1.3 that the code sheet indicates is associated with the sperm fraction? Did you indicate that anywhere?
MR. YAMAUCHI: The result is acceptable for that particular sample.
MR. SCHECK: I didn't ask you that question, sir.
MR. YAMAUCHI: So it is not--
MR. SCHECK: Could you answer my question?
THE COURT: You don't get to argue with the witness. You can ask me to strike.
MR. SCHECK: Move to strike the answer as nonresponsive.
THE COURT: The answer is stricken. Mr. Yamauchi, answer the question.
MR. SCHECK: Did you indicate that anywhere in your papers?
MR. YAMAUCHI: No.
MR. SCHECK: In reviewing your work did any of your supervisors indicate anywhere in any written document that your typing of 1.2, 4 for the sperm fraction was not in accord with the 1.2, 1.3 for the sperm fraction indicated on the code sheet?
MR. HARMON: Objection, it is argumentative. Assumes facts not in evidence, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: No.
MR. SCHECK: Did not the LAPD, in reporting on the validation studies, indicate that you, Collin Yamauchi, correctly typed every sample given you? You either got the right answer or no result, but you never got a wrong answer?
MR. YAMAUCHI: (No audible response.)
MR. SCHECK: Isn't that what the report of the validation study indicates?
MR. YAMAUCHI: Could I see that paper again?
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. SCHECK: Your Honor, I can't find mine. Can I just show Mr. Harmon's--
MR. HARMON: Well, it is an exhibit, your Honor.
MR. SCHECK: I understand that, but I can't seem to find the paper.
THE COURT: Do we have the exhibit?
MR. SCHECK: I took it and I can't find it right now and I have to make a copy of it. Can I just show this to the witness?
THE COURT: Mr. Harmon, can you hand counsel your copy?
MR. HARMON: It is exhibit 1181.
MR. SCHECK: Looking at exhibit--Defense exhibit 1181, doesn't it indicate that you, Collin Yamauchi, did not give a wrong typing result on any validation studies? You either got the right answer or no result?
MR. YAMAUCHI: Yes. That is what it indicates there.
MR. SCHECK: Thank you.
MR. SCHECK: Now, Mr. Yamauchi, you indicated, when we were here last Monday (Sic), that you needed to look at some document to refresh your recollection with respect to whether or not you knew anything--you had read anything with respect to false positives on the CACLD proficiency tests. And your Honor, I have two documents that I would like to mark Defendant's next in order.
MR. HARMON: Objection, your Honor. That misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: All right. Did you indicate, in your testimony Friday, that you couldn't remember whether you had read anything about reports from the CACLD concerning their blind trials during your training?
MR. YAMAUCHI: Yes. I wasn't sure.
MR. SCHECK: All right. You wanted to look at some documents to see if it would refresh your recollection?
MR. YAMAUCHI: Yes.
MR. SCHECK: Your Honor, may I mark these two sets of documents?
THE COURT: Yes.
MR. SCHECK: What?
THE CLERK: 1183.
MR. SCHECK: Sorry?
THE CLERK: 1183.
MR. SCHECK: All right. One will be 1183, a document of 1, 2, 3, 4, 5, 6, 7, 8, 9 pages.
(Deft's 1183 for id = 9-page document)
MR. SCHECK: And I would like to mark as 1184 an article of 1, 2, 3, 4, 5, 6, 7, 8 pages.
(Deft's 1184 for id = 8-page document)
MR. SCHECK: Showing you 1183, Mr. Yamauchi--
MR. HARMON: Can I see that?
MR. SCHECK: Sure.
(Brief pause.)
MR. SCHECK: Let's start with 1183. Could you review that document and see if it refreshes your recollection as to whether or not you ever read any reports from the California Association of Crime Lab Directors with respect to their blind trial studies?
MR. YAMAUCHI: No, I don't believe I have read this.
MR. SCHECK: All right. Have you ever heard of a Dr. William Thompson and Dr. Simon Ford?
MR. YAMAUCHI: I've heard of them.
MR. SCHECK: And do you know them to be authors that are critical of forensic DNA typing methods of crime labs?
MR. HARMON: Objection, hearsay, irrelevant.
THE COURT: Sustained.
MR. SCHECK: All right. Have you ever read an article written by Dr. Ford and Thompson entitled "The meaning of a match sources of ambiguity in the interpretation of DNA prints that concerns the CACLD study"?
MR. YAMAUCHI: No, I haven't.
MR. SCHECK: All right. Are you sure of this? Do you want to take a look and see if this refreshes your recollection.
MR. HARMON: Objection. There is no basis for--
THE COURT: Sustained.
MR. SCHECK: All right. You have never read such an article?
MR. YAMAUCHI: No.
MR. SCHECK: So have you ever read--do you make it a practice to read articles that are critical of the forensic DNA typing methods of laboratories?
MR. HARMON: Objection, calls for hearsay, no foundation.
THE COURT: Overruled. Overruled.
MR. YAMAUCHI: Do I make it a practice? You mean go out of my way to look for them? No, I don't.
MR. SCHECK: All right. In the course of your training have you reviewed any articles by scientists that were critical of the forensic DNA typing methods of crime laboratories?
MR. HARMON: Objection, your Honor, no foundation, calls for hearsay, 721 evidence code.
THE COURT: Overruled.
MR. YAMAUCHI: I know I have read articles with pros and cons in it, but I have read so many articles and so much literature it is hard to point out specifically where it was.
MR. SCHECK: Can you tell us by name any one article you've read that was critical of the typing methods of DNA laboratories?
MR. HARMON: Objection, calls for hearsay, no foundation, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: I would have to go back and review my article and stuff like that.
MR. SCHECK: Would it be fair to say that in the course of your training no one at LAPD made a particular effort to search out the views of critics and make sure that people in training read the views of critics?
MR. HARMON: Objection, calls for speculation, no foundation, hearsay.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Was it--was a concerted effort made during the course of your training to have analysts at the LAPD DNA laboratory review articles by critics of DNA typing methods as practiced by forensic laboratories?
MR. HARMON: Objection, assumes facts not in evidence, calls for hearsay, no foundation.
THE COURT: Sustained.
MR. SCHECK: All right. In the course of your training were you ever directed to read articles about forensic DNA typing?
MR. YAMAUCHI: Forced to or I mean--yes, we read them on our own. It is part of our own training. We've got to convince ourselves that the things that we are doing are correct and that we can get good results on them, so of course we read articles. And it is not a matter of anybody directing us to do this. We read articles dealing with the pros and cons to this type of typing and scientific practice so that we can be well-rounded and aware of everything that is going on.
MR. SCHECK: Well, Mr. Yamauchi, what I'm really asking you is--well, withdrawn. Are you saying, sir, that there was no one who was in charge of your training who gave you sets of articles to read?
MR. YAMAUCHI: No.
MR. SCHECK: In other words, you on your own, in the course of your training period, would figure out for yourself what was appropriate to read or not to read? Is that how it worked?
MR. YAMAUCHI: Well, we go to, like I said before, CAC meetings and a lot of talk goes on over there as to what is the new article, and yeah, it might be worth reading, and so we get information that way, as well as talking amongst ourselves or through Roche Molecular System, that class. There is all kind of ways we have access to information.
MR. SCHECK: All right. But there was no one or two people in your training that actually sat down and developed a set of readings for you to review? That didn't happen, right?
MR. YAMAUCHI: No.
MR. SCHECK: Now, briefly, sir, over the weekend have you been able to review how many external proficiency tests you did before you commenced work on this case?
MR. YAMAUCHI: How many I did?
MR. SCHECK: Yes. You said you needed to go back and look at the record to refresh your recollection.
MR. YAMAUCHI: Well, I don't recall you asking me to check and see how many I did. I recall you asking me to go back and reference that--those set of hybe strips that you gave me.
MR. SCHECK: In any of the external proficiency tests that you performed before you did the work on this case, did any of them involve degraded samples? In other words, the external agency sent you degraded samples to type?
MR. YAMAUCHI: Well, you are going to have to be a little bit more specific about that because, technically speaking, once a sample is made it is starting its degrading process right away, so to a certain extent all samples are going to be degrading. But do you mean some type of a time study where they are degraded to certain points and levels of DNA that they have measured? I don't know. That would be up to the company.
MR. SCHECK: All right. When you took these external studies, did you do yield gels and slot-blots to determine the amount of human DNA in the samples?
MR. YAMAUCHI: No.
MR. SCHECK: You never did that?
MR. YAMAUCHI: No.
MR. SCHECK: Isn't the use of a yield gel and a slot-blot together a way for an analyst to determine whether or not a sample is degraded?
MR. YAMAUCHI: That gives you avenues of information.
MR. SCHECK: A yield gel, as the jury has seen, is a mini gel that has known samples that give bands of a certain intensity, correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then you compare the amount--the intensity of the bands from the unknown samples on the yield gel to give you an idea of how much total DNA there is in the sample, both bacterial and human, correct?
MR. YAMAUCHI: Yeah. At that point you wouldn't be able to distinguish between the two.
MR. SCHECK: And then, after a yield gel, one can do a slot-blot, correct?
MR. YAMAUCHI: And/or.
MR. SCHECK: But you can do a slot-blot?
MR. YAMAUCHI: You can do a slot-blot.
MR. SCHECK: Before? You could do it before?
MR. HARMON: Objection, your Honor. He is not letting him finish.
THE COURT: Sustained.
MR. YAMAUCHI: Well, a slot-blot would be the choice that we would use because we do our samples with chelex extractions. A yield gel is not effective because the chelex procedure winds up with a sample that is--that is not fitted for the yield gel's purposes, so we would have to use what Mr. Scheck is referring to right now, which is a slot-blot.
MR. SCHECK: Well, a slot-blot gives you, again looking at the intensity of the bands from the known sample and comparing the intensity of the bands from the unknown specimens, it gives you a measure of the amount of human DNA in a sample, correct?
MR. YAMAUCHI: Yes, an approximate idea.
MR. SCHECK: So if you combine information from a yield gel and a slot-blot, you can get a measure of how much bacterial DNA there is in a sample, as opposed to human DNA, correct?
MR. YAMAUCHI: Yes, you could, if you did a pheno chloroform extraction.
MR. SCHECK: And if you do a yield gel and a slot-blot together and find out that there is a comparatively greater amount of bacterial DNA in a sample than human DNA, that is an indication that the sample is degraded?
MR. YAMAUCHI: If you did a pheno chloroform extraction, you would be able to tell that, but once again, we use chelex extractions so we could do the slot-blot and that could be done even after the test results are obtained and as a--at a level of troubleshooting.
MR. SCHECK: Your Honor, move to strike this part of the answer as not responsive.
THE COURT: Overruled.
MR. SCHECK: Go ahead. Are you finished? I'm sorry.
MR. YAMAUCHI: Yeah, that's fine.
MR. SCHECK: My point, sir, is that by using the yield gel and the slot-blot together, one can come to a conclusion as to how much bacterial DNA is in a sample, versus human DNA, correct?
MR. YAMAUCHI: Once again, if you assume that the person did a pheno chloroform extraction to begin with, which that is not the procedure we use. Once again, we do the chelex extraction.
THE COURT: All right. Let's move on.
MR. SCHECK: You are saying that in your opinion it is impossible to do a yield gel while doing chelex extractions?
MR. HARMON: Objection. Misstates the testimony. It is argumentative.
THE COURT: Sustained.
MR. SCHECK: Can you do a yield gel when doing chelex extractions?
MR. YAMAUCHI: You can, but it is not going to give you information.
MR. SCHECK: So you can do a yield gel and you can do a slot-blot when doing chelex extractions, correct?
MR. HARMON: Objection, it is irrelevant. It is argumentative.
THE COURT: Overruled.
MR. YAMAUCHI: Okay. The--once again, chelex extractions yields somewhat of a different type of an extraction product, and because it actually to a certain extent chops the DNA up into smaller pieces, but pieces that are not too small for the PCR amplification process and it also delivers DNA in a state that is what we call single-stranded, in other words, it is not together in the two-stranded form, which the pheno chloroform extract yields, and it is because of this that you can do a yield gel, of course, on a chelex extraction, but it doesn't give you any information like the pheno chloroform extract would give you if you did a yield gel on that.
MR. SCHECK: Are you finished?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. So you can do a yield gel while doing pheno chloroform extractions? Yes or no.
MR. HARMON: Objection.
THE COURT: Sustained. Let's move on.
MR. SCHECK: Section 15 of your protocol deals with yield gels, does it not?
MR. YAMAUCHI: I would have to see that.
(Brief pause.)
MR. SCHECK: While you are looking at it, can you tell us if in section 15 of your protocol concerning yield gels it indicates anywhere that it shouldn't or cannot be done when you are doing chelex extractions? Does it say that?
MR. YAMAUCHI: It doesn't address that point there. It is only a protocol to explain how to do the yield gel.
MR. SCHECK: Uh-huh. And section 16 explains how to do a slot-blot?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you are telling this jury that in terms of doing chelex extractions, you have no means--withdrawn. In doing chelex extractions you don't have the ability to do a yield gel and a slot-blot together to determine whether or not a sample is degraded because it has a lot of comparatively more bacterial DNA than human DNA? Is that what you are saying?
MR. HARMON: Objection. It is argumentative and misstates the testimony, your Honor.
THE COURT: Sustained.
MR. SCHECK: Is it your testimony, sir, when doing chelex extractions, that one cannot do a yield gel and a slot-blot together to get a measure of whether or not a sample is degraded with bacterial contamination?
MR. HARMON: Objection, it is argumentative and misstates the testimony.
THE COURT: Overruled.
MR. YAMAUCHI: You can't run a yield gel and get the information that you are referring to.
MR. SCHECK: Now--so you don't know--and in these external proficiency tests that you did, you can't even run slot-blots?
MR. YAMAUCHI: It wasn't necessary. There was typeable results. If there was a reason why, I would--I would definitely go back and troubleshoot it by using a yield gel. The extracts aren't thrown away. They are still there.
MR. SCHECK: Uh-huh. Now, in these external proficiency tests you did before working on this case, did it involve bloodstains that were mixtures involving two or more contributors?
MR. YAMAUCHI: I don't have recall having a mixture on any of my proficiency tests or blood stains.
MR. SCHECK: That would cover proficiency tests before you did work on this case and after you did work on this case?
MR. YAMAUCHI: Yes.
MR. SCHECK: But this case involves bloodstains with mixtures, according to the Prosecution's theory of two or more people?
MR. HARMON: Objection, it is argumentative.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Does this case, in your opinion, sir, involve bloodstains that are mixtures of two or more contributors?
MR. YAMAUCHI: I did some typing that reflected a mixture, yes.
MR. SCHECK: Your Honor, I would like to show--I would like to put on the screen Defense exhibit 1159-H.
(Brief pause.)
THE COURT: Mr. Scheck.
MR. SCHECK: Thank you.
MR. SCHECK: Now, Mr. Yamauchi, is it part of your training that an analyst should systematically change or wash gloves between examining or cutting different items of evidence?
MR. YAMAUCHI: Well, if you are cutting swatches it is really not necessary because you are not touching the swatches with your gloves.
MR. SCHECK: Your Honor, I move to strike the answer as not responsive. I asked him a specific question.
MR. SCHECK: Is it part of your training that an analyst should systematically change or wash gloves between examining or cutting different items of evidence?
MR. HARMON: Objection. That is compound, your Honor.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Is it part of your training that an analyst should systematically change gloves between cutting different items of evidence?
MR. YAMAUCHI: No.
MR. SCHECK: Is that in your protocol?
MR. YAMAUCHI: I am not aware of it.
MR. SCHECK: You did not systematically change or wash gloves between cutting different items of evidence in this case, did you?
MR. HARMON: Objection. It is compound, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: Once again, I--I changed my gloves when it is necessary. If I'm dealing with swatches, and I believe I explained this earlier, I use a sterile scalpel blade to do my manipulations.
MR. SCHECK: Your Honor, I move to strike this as not responsive.
THE COURT: Overruled.
MR. HARMON: May he finish his answer, your Honor?
THE COURT: No, no. You can ask the next question. Proceed.
MR. SCHECK: Do you feel that routinely changing gloves between each item of evidence that you cut takes too much time?
MR. HARMON: Objection, it is vague.
THE COURT: Overruled.
MR. YAMAUCHI: I just don't think it is necessary.
MR. SCHECK: Do you feel that changing your gloves as a matter of routine between cutting different items of evidence would lower the risk of cross-contamination?
MR. YAMAUCHI: Well, if you are touching the evidence item with your gloves, then yes, that is a very good point taken, but if your gloves are not coming in contact with the item of evidence, it is not necessary.
MR. SCHECK: All right. Now, you helped design boards that were presented in this case concerning the methods used for drying swatches?
MR. YAMAUCHI: For one thing, I didn't help design any boards.
MR. SCHECK: Were you consulted in the construction of boards that were introduced through Dennis Fung and Andrea Mazzola in evidence in this case concerning the drying methods using test-tubes? Were you consulted when those boards were put together?
MR. HARMON: Object as beyond the scope of direct.
THE COURT: Sustained.
MR. SCHECK: Is changing of gloves between handling wet swatches during the drying process something you believe necessary?
MR. YAMAUCHI: Well, again, if you are handling--you mean the gloves physically coming in contact with the swatch itself?
MR. SCHECK: Are you familiar with the method used in this case by Mr. Fung and Miss Mazzola to dry the swatches by taking wet swatches out of plastic bags, placing them in test-tubes?
MR. HARMON: Objection. That is beyond the scope of direct.
THE COURT: Sustained.
MR. SCHECK: Did you, Erin Riley or anyone else from the DNA unit, give a lecture to the criminalists that collect, dry and package the evidence, such as Mr. Fung and Miss Mazzola, telling them that it was critical to systematically alternate substrate controls when handling swatches in the evidence processing room because such controls could later be used as a check against cross-contamination in DNA testing?
MR. HARMON: Objection. It is compound, may call for hearsay, your Honor.
THE COURT: It is compound.
MR. SCHECK: Did you or Erin Riley or anyone from the DNA unit give lectures to the criminalists, specifically Dennis Fung and Andrea Mazzola, about how to handle swatches in the evidence processing room which were going to be subjected to DNA testing?
MR. HARMON: Objection, it is compound, may call for hearsay.
THE COURT: Overruled.
MR. YAMAUCHI: Well, I personally haven't lectured them. Erin Riley may have talked to them about that. I don't know.
MR. SCHECK: In the course of setting up your DNA laboratory, was there any discussion that there should be a uniform method among all the criminalists for handling blood swatches to minimize the risk of cross-contamination?
MR. HARMON: Objection, calls for hearsay.
THE COURT: Overruled.
MR. HARMON: Calls for speculation, no foundation.
THE COURT: Overruled. Was there any such discussion?
MR. YAMAUCHI: With Dennis and Andrea? No.
MR. SCHECK: No. First question. Was there any discussion among you in the DNA unit that it would be important to have one uniform way for handling wet swatches for purposes of minimizing the risks of cross-contamination in DNA testing?
MR. HARMON: Objection, beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: Discussion of one uniform way--no, I would have to say no.
MR. SCHECK: Now--
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. SCHECK: Your Honor, I'm looking for the board now that concerns cutting the swatches.
(Brief pause.)
THE COURT: All right. While we are looking for that exhibit, if anybody needs to take a comfort break.
(Brief pause.)
THE COURT: Mr. Scheck, why don't you hold on just a second. We are waiting for one of our jurors to return.
(Brief pause.)
MR. SCHECK: Your Honor, this is exhibit 277.
THE COURT: All right. Why don't you wait until we have all of our jurors back.
MR. SCHECK: Oh, okay.
(Discussion held off the record between Defense counsel.)
THE COURT: All right. We have our full complement of jurors. Mr. Scheck, which exhibit is this?
MR. SCHECK: This is--you are testing my short-term memory. That is very dangerous this morning. 277.
THE COURT: All right. People's 277. Proceed.
MR. SCHECK: Now, Mr. Yamauchi, this is the evidence sampling board, is it not?
MR. YAMAUCHI: Yes, that is what it is described as on the top.
MR. SCHECK: Did you have any part in putting this board together?
MR. YAMAUCHI: Well, at the D.A.'s request I was asked to be in some photographs and they put it together.
MR. SCHECK: You mean you didn't give them any advise on how this ought to look based on what you actually did in cutting the swatches in this case?
MR. HARMON: Objection, calls for hearsay, your Honor.
THE COURT: Sustained.
MR. SCHECK: Well, you said the D.A.'s set it up, right?
MR. YAMAUCHI: Yes.
MR. SCHECK: You just said that, didn't you?
MR. YAMAUCHI: Yes.
MR. SCHECK: Well, before that was set up, didn't you have an extensive discussion with them about exactly what happened before this board was put in place?
MR. YAMAUCHI: Yes. They asked me what I did, and how I did it, and they said let's take some photographs documenting that process. I said "Fine."
MR. SCHECK: Mr. Yamauchi, didn't you have a bigger role in setting up boards other than this one?
MR. HARMON: Objection. It is irrelevant, beyond the scope.
THE COURT: Sustained.
MR. SCHECK: Well, you recall a videotape being made of Andrea Mazzola picking up swatches?
MR. HARMON: Your Honor, I have an objection. May we approach?
THE COURT: No. Sustained. It is irrelevant.
MR. SCHECK: Was a videotape made of this?
MR. YAMAUCHI: No.
MR. SCHECK: Okay. And in this demonstration you are cutting a plain white swatch; is that correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: You are not cutting a red swatch full of blood, are you?
MR. YAMAUCHI: No.
MR. SCHECK: And was that done to minimize the risk that during the course of putting this together you might accidentally get a little red on your glove?
MR. HARMON: Objection. It is argumentative.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Do you know--who made the decision to use a white swatch rather than a red swatch?
MR. YAMAUCHI: About using red swatches, I don't think that issue ever came up. The whole idea was to demonstrate the procedure that I would go through in sampling.
MR. SCHECK: Well, most of the specimens that you cut were red swatches covered with blood?
MR. YAMAUCHI: Yes.
MR. SCHECK: But you are not demonstrating a red swatch covered with blood on this board, are you?
MR. YAMAUCHI: Yes. I'm just demonstrating the procedure I used to cut such a swatch.
MR. SCHECK: And you were aware that other demonstration boards had been put together starting at the beginning of the process where swatches were made with blood on them?
MR. HARMON: Objection. It is beyond the scope, argumentative.
THE COURT: Sustained. Counsel, the board pretty much speaks for itself, what it is and what it isn't, so let's not waste a lot of time on this.
MR. SCHECK: All right.
MR. SCHECK: Now, are you telling us, sir, that when you went through all the different swatches on the morning of June 14th, that you only used one hand with the scalpel in it to manipulate those swatches?
MR. YAMAUCHI: Yes, that is how I do my sampling.
MR. SCHECK: So in other words, looking at this board, you have a scalpel that is about how long?
MR. YAMAUCHI: Approximately an inch and a half.
MR. SCHECK: And when you grip it, about how much of the blade is there that is uncovered by your fingers?
MR. YAMAUCHI: I don't grab the blade.
MR. SCHECK: Well, look at no. 3 on this exhibit 277. Does that demonstrate how you held the scalpel when you went about manipulating the swatches?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. And about how much of the scalpel is exposed as you hold it in your hand? How long an area is that?
MR. YAMAUCHI: Well, maybe three-quarters of an inch.
MR. SCHECK: And the way you go about cutting these swatches and then putting them in a test-tube, as indicated on 3, 4 and 5 of this evidence sampling board, is that you do it with just one hand with that scalpel?
MR. YAMAUCHI: Yes.
MR. SCHECK: You cut it; is that correct, cut the swatch?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then you stick the scalpel into the swatch, pick it up and put it into the microfuge tube?
MR. YAMAUCHI: Right, the microcentrifuge.
MR. SCHECK: On the morning of June 14th when you did the swatches in this case, you did all the swatches with one hand?
MR. YAMAUCHI: Well, this is the same procedure I used, yes. That is how I do it.
MR. SCHECK: And you don't use forceps or tweezers?
MR. YAMAUCHI: No, I don't.
MR. SCHECK: And you never touch any of the swatches with your glove?
MR. YAMAUCHI: No, I don't.
MR. SCHECK: And you didn't touch any of the swatches with your glove on June 14th?
MR. YAMAUCHI: No.
MR. SCHECK: Now--and you feel there is no danger in this technique of touching a swatch with your glove?
MR. YAMAUCHI: No, I never said anything about touching the swatch with my glove.
MR. SCHECK: It doesn't happen?
MR. YAMAUCHI: I didn't touch the swatches with my glove.
MR. SCHECK: Now, you told us on direct examination that with respect to item 49 you originally counted out five swatches?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then you noticed that two swatches were stuck together?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then you pulled them apart, didn't you?
MR. YAMAUCHI: Yes.
MR. SCHECK: Are you telling us that you pulled apart those swatches with one hand holding that scalpel and didn't use a forceps and didn't use a tweezers and didn't use your other hand?
MR. YAMAUCHI: Yeah. Well, it is not easy, but if you take the scalpel blade, you can get it in between them and kind of jiggle them apart.
MR. SCHECK: And you have a specific recollection that you were able to do that in this case?
MR. YAMAUCHI: Yes.
MR. SCHECK: Incidentally, when you were handling the socks last Friday, were you aware that you were also touching the microphone with your gloved hand and then went down and touched the socks?
MR. YAMAUCHI: I could have, yeah.
MR. SCHECK: Were you aware of it?
MR. YAMAUCHI: Yes.
MR. SCHECK: And so as far as you are concerned there is no possibility that you inadvertently touched the swatches even when you were pulling apart those two swatches that were stuck together on sample 49?
MR. YAMAUCHI: No. I used a scalpel blade.
MR. SCHECK: Now--
(Discussion held off the record between Defense counsel.)
THE COURT: Mr. Scheck, 10:45.
(Brief pause.)
MR. SCHECK: Now, Mr. Yamauchi, please listen carefully to my question. Is it part of your training to change lab paper between cutting different items of biological evidence?
MR. YAMAUCHI: Okay. If I'm working on one item that needs to be placed on directly to the lab paper, then yes, of course, I will change the paper. But if I'm working on cloth swatches, what I do is I change the chem wipes that are beneath the bindle, the paper bindle.
MR. SCHECK: So you believe it is important to change paper between handling blood swatches?
MR. YAMAUCHI: The paper immediately underneath the bindle that I'm working on.
MR. SCHECK: Are you aware that in scraping out the blood swatches in this case Andrea Mazzola and Dennis Fung did not change the paper between items?
MR. HARMON: Objection, calls for hearsay, beyond the scope.
THE COURT: Sustained.
MR. SCHECK: Did you hear the testimony of Dennis Fung and Andrea Mazzola with respect to how they handled the blood swatches in the evidence processing room on June 14th?
MR. HARMON: Objection, beyond the scope, calls for hearsay.
THE COURT: Sustained.
MR. SCHECK: I take it that it is the beyond the scope objection that you are sustaining?
THE COURT: Calls for hearsay.
MR. SCHECK: Well, you listened to testimony in this case from your fellow criminalists, didn't you?
MR. YAMAUCHI: Yes.
MR. SCHECK: And did you have any part whatsoever in advising Dennis Fung, Andrea Mazzola or the Prosecutors on how to create the board dealing with drying swatches?
MR. HARMON: Objection, beyond the scope, compound, calls for hearsay.
MR. SCHECK: Go to the issue of paper.
MR. HARMON: Beyond the scope, calls for hearsay. No foundation, whatever it goes to.
THE COURT: Overruled.
MR. YAMAUCHI: I didn't have anything to do with making their boards or--that was all through the Prosecution. They made their own boards.
MR. SCHECK: So in your opinion, when handling blood swatches, when you are taking them out of test-tubes, one should change the paper?
MR. YAMAUCHI: Well, if the swatches are going to touch the paper, then, yes, I would say that that would be a good idea, but if they are not allowing the swatches to touch the paper, then there really isn't any reason to change the paper beneath them. Do you see my point?
MR. SCHECK: Mr. Yamauchi, I thought you just told us that it was your routine practice to change paper every time that you handled a different blood swatch except when you were--when you had chem wipes underneath the bindles?
MR. HARMON: Objection. It is argumentative, misstates the testimony.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Did you just tell us that you believed that paper ought to be changed between each evidentiary item, including blood swatches, except in an instance where you are just changing the chem wipes?
MR. YAMAUCHI: Yes. That is what I said, and that had to do with the blood swatches again.
MR. SCHECK: All right. Is it part of your training to clean a table with bleach between cutting different evidentiary items?
MR. YAMAUCHI: No. I make sure that there is a barrier between the table and the item, somewhat like fresh paper, but I wouldn't bleach it down every single time.
MR. SCHECK: That is not in your protocol?
MR. YAMAUCHI: Not to my recollection.
MR. SCHECK: And you didn't do it in this case, did you?
MR. YAMAUCHI: No, I didn't.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Putting up 1159-B.
(Brief pause.)
MR. SCHECK: Now, Mr. Yamauchi, in the course of your training was there discussion that the danger of cross-contamination is greatest when an analyst is dealing with degraded samples?
MR. YAMAUCHI: I don't recall anything to do with my training specifically stating that.
MR. SCHECK: Your training took six months at least?
MR. YAMAUCHI: At least.
MR. SCHECK: How long was your training period?
MR. YAMAUCHI: Approximately six months.
MR. SCHECK: All right. And you--you took a course at Roche?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you did readings?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you are telling us that in the course of your readings and in the course of the Roche class there was no discussion that the danger of cross-contamination is greatest when an analyst is dealing with degraded samples?
MR. HARMON: Objection, calls for hearsay, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: Those exact words being the greatest course of contamination, no, I don't remember anything like that.
MR. SCHECK: All right. Let's try a different phrase. Was there discussion that the risk of cross-contamination was raised when dealing with degraded samples?
MR. YAMAUCHI: No, I don't recall any discussion like that. If you had more information to go along with that, just degraded is not enough for me to make a distinction there.
MR. SCHECK: And in the course of all of your training there was no discussion of false positives occurring with degraded samples?
MR. YAMAUCHI: No.
MR. SCHECK: On June 14th you had no idea if the swatches that you were handling from the Bundy scene were degraded?
MR. YAMAUCHI: Well, like I said before, all our case work samples are degraded to a certain degree. How badly--no, there is no way of knowing, by looking at a sample, what the quantity and quality of DNA is on it.
MR. SCHECK: Right. They looked like rich red swatches to you when you were handling them on June 14th?
MR. YAMAUCHI: Well, some of them were red. Some of them were light red and they were all different types of shades.
MR. SCHECK: Uh-huh. And I think, as you told us already, that it is not your practice to do yield gels?
MR. YAMAUCHI: No, because we do chelex--
MR. SCHECK: All right.
MR. YAMAUCHI: --extractions.
MR. SCHECK: But you do allow that you can do a slot-blot?
MR. YAMAUCHI: Yes. We--we could do a slot-blot and that would be used in troubleshooting should something anomalous come up or something that needs to be troubleshooted.
MR. SCHECK: And if you did a slot-blot before you proceeded with the extraction of DNA, you would have an idea of how much human DNA was in those swatches?
MR. YAMAUCHI: Yes, I would have more information as to that effect.
MR. SCHECK: And if you did a slot-blot, that might have given you some information as to whether or not these Bundy samples you were dealing with were degraded?
MR. YAMAUCHI: If I did a slot-blot it would tell me whether or not there was human DNA there, but it doesn't necessarily tell us the state as far as whether it is degraded or not. It can give you a slight idea, but it doesn't address that issue--
MR. SCHECK: Well, if you--
MR. YAMAUCHI: --completely.
MR. SCHECK: I'm sorry. Are you finished?
MR. YAMAUCHI: Yes, I am.
MR. SCHECK: All right. Well, if do you a slot-blot and you see that there is less human DNA than you would expect just by eyeballing the swatches, that would give you some information that you were dealing with degraded samples?
MR. YAMAUCHI: I'm sorry. Could you ask that question one more time, please?
MR. SCHECK: Sure. If you did a slot-blot and the slot-blot reading showed less human DNA than you would have expected just looking at the swatches, wouldn't that be an indication that the samples were degraded?
MR. YAMAUCHI: A low amount of--of, umm, human DNA, that statement coming from a slot-blot would be an indication that there is a small amount of DNA there.
MR. SCHECK: And on the morning of June 14th you were operating on the theory that the blood drops at Bundy had been deposited within twelve hours of their collection?
MR. HARMON: Objection, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Were you operating on the premise on the morning of June 14th that the blood drops at Bundy had been deposited within twelve hours of their collection?
MR. HARMON: Objection, calls for speculation.
THE COURT: Overruled.
MR. YAMAUCHI: Well, we can't really speculate as to how old a stain is. It is--just handle all evidence in the same fashion that you would, whether it is possibly there for twelve hours or 24 years. The same procedures and steps are in line.
MR. SCHECK: Mr. Yamauchi, are you telling this jury that you would handle a sample that was 24 years old in exactly the same fashion as you would handle a sample that was twelve hours old, as far as you knew?
MR. YAMAUCHI: Yes, I would.
MR. SCHECK: In other words, as far as you are concerned, degradation and the effects of time plays no role in the way that one handles samples?
MR. YAMAUCHI: Well, time doesn't necessarily--isn't necessarily the only factor that causes degradation, so we have had good typing results off of samples that are a number of years old, and you always just can't put your money on one thing or another.
MR. SCHECK: Well, let's--
MR. YAMAUCHI: So--
MR. SCHECK: I'm sorry, are you finished?
MR. YAMAUCHI: No, I'm not.
MR. SCHECK: Okay. Go ahead.
MR. YAMAUCHI: So whether or not you've got a brand new fresh exemplar or an evidence item, you still have to treat them the same. You can't assume that one is old and/or degraded or for whatever reason, because there is too many factors involved for us to know everything about that sample.
MR. SCHECK: Now, Mr. Yamauchi, on the morning of June 14th you had certain information about this case through Dennis Fung, didn't you?
MR. YAMAUCHI: Yes.
MR. SCHECK: He had a conversation with you in the evidence processing room? Do you remember that?
MR. YAMAUCHI: Yes.
MR. SCHECK: You don't remember your--you don't remember seeing Detective Lange anywhere on the morning of June 14th, right?
MR. YAMAUCHI: Well, I'm not sure if I saw him that day or not. It just--my memory--it is almost a year ago.
MR. SCHECK: Are you aware of any legal issues that have arisen in the last two days that make it important for you to forget that you ever saw or spoke to Detective Lange on the morning of June 14th?
THE COURT: Sustained, sustained, sustained. The jury is to disregard the implication of that question.
MR. SCHECK: I take it you didn't see Detective Lange anywhere near the evidence processing room or any of the swatches on the morning of June 14th?
MR. YAMAUCHI: No, I don't know.
MR. SCHECK: Uh-huh. Now, in a conversation you had on the morning of June 14th with Dennis Fung he communicated certain things to you that he had learned from the detectives that were investigating this case?
MR. YAMAUCHI: That is where I would assume he got that information from, sure.
MR. SCHECK: Well, didn't he tell you explicitly that he had obtained certain information via or through robbery/homicide?
MR. YAMAUCHI: Yeah, he might have said that.
MR. SCHECK: Well, don't your notes specifically say that Dennis Fung told you that Mr. Simpson had a cut on his left hand and you--and he had learned that via robbery/homicide? Didn't you write that down?
MR. YAMAUCHI: That sounds familiar, but let me check my notes to be sure.
(Brief pause.)
THE COURT: This will be the last question and answer before we take our break. Do you want to direct his attention to a page?
MR. SCHECK: You found it, didn't you?
MR. YAMAUCHI: (No audible response.)
MR. SCHECK: Mr. Yamauchi, you have your notes as to the morning of June 14th written out as to the events in the evidence processing room on something called a "Serology item description sheet," do you not?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. And on the first page of those notes there is a description of the Bundy samples?
MR. YAMAUCHI: Yes.
MR. SCHECK: And there is a note in the top part of your page indicating that you learned that Mr. Simpson had cut his left finger on his left hand via robbery/homicide per Dennis Fung?
MR. YAMAUCHI: Yeah. I wrote "As per Fung" and then parenthesis "Via RHD O.J.'s cut on left hand."
MR. SCHECK: And "Via RHD" means that that note means, does it not, that Mr. Fung told you that he had learned from the detectives at robbery/homicide that Mr. Simpson had a cut on his left hand?
MR. YAMAUCHI: Yes.
MR. SCHECK: One more?
THE COURT: Go ahead.
MR. SCHECK: Did he indicate to you, via the detective from robbery/homicide, that the Rockingham blood drops were expected to be Mr. Simpson's blood?
MR. HARMON: Objection, calls for hearsay.
THE COURT: Overruled.
MR. YAMAUCHI: He indicated there was a blood trail leading away from the scene, and he talked about that cut and it could possibly be linked.
MR. SCHECK: My question had to do with blood drops from Rockingham. Are you with me? Not Bundy.
MR. YAMAUCHI: Blood drops from Rockingham, okay.
MR. SCHECK: All right. You know which item we are talking about?
MR. YAMAUCHI: Yes.
MR. SCHECK: Did Mr. Fung indicate to you, through information that he got from the detectives at robbery/homicide, that they expected that the blood drops at Rockingham would be Mr. Simpson's blood?
MR. HARMON: Objection, vague as to when the conversation occurred.
MR. SCHECK: Talking about the morning on June 14th.
THE COURT: Overruled.
MR. YAMAUCHI: Well, I didn't get Rockingham samples until the next day, I believe.
MR. SCHECK: When you were talking with Mr. Fung on the morning of June 14th did you know that detectives at robbery/homicide had taken a statement from Mr. Simpson earlier that day?
MR. HARMON: Objection, your Honor.
THE COURT: Sustained. All right. Ladies and gentlemen, we are going to take a recess at this point for fifteen minutes. Please remember all my admonitions to you. Don't discuss the case amongst yourselves, don't form any opinions about the case. Don't allow anybody to communicate with you, do not conduct any deliberations until the matter has been submitted to you. We will be in recess for fifteen.
MS. CLARK: Your Honor, we would like to be heard.
THE COURT: When we get back.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Are we ready to proceed?
MS. CLARK: Yes, your Honor.
THE COURT: All right.
MS. CLARK: May we be heard? Thank you. Just before the break Mr. Scheck posed a question that was so unethical and so improper that I think that the transcript should be sent to the state bar. I think he should not be permitted to practice pro hoc vice. I find it not only appalling, but I am ashamed as an officer of the Court to see this kind of behavior. It was a deliberately improper question that Mr. Scheck knew to be improper, bringing out such information in front of the jury with no--no appropriate focus, other than to give information to the jury which is inappropriate, which cannot be brought out in that manner in an effort to prejudice the right of the People to a fair trial in a very inflammatory manner, no less. I think that the sanction should be very severe and I think that the Court should not take this lightly because the Court could see this coming. The Court knew that Mr. Scheck was going to try and get that in front of the jury. I'm sure that you did. We anticipated it and then the question sure enough was asked and Mr. Scheck knows it is improper because there is no lawyer with half a brain with an IQ. Above 5 who would not have known that such a question is improper. And to deliberately ask such improper questions, such inflammatory questions deliberately designed to thwart justice, should not be treated lightly. And we are asking the Court to impose a sanction and we are going to draft a proposal for that sanction. I would like the opportunity to confer further with counsel concerning that, but at the very least the jury should be ordered to disregard the statement made by Mr. Scheck and should be admonished that Mr. Scheck's conduct was highly inappropriate, and that is just for starters. May I have a moment, your Honor?
(Discussion held off the record between the Deputy District Attorneys.)
MS. CLARK: Further, your Honor, at this time the Defense should be ordered not to make any references to that statement. The references on the statement are an effort to hide behind inferences that can be thrown out in front of jury so that Mr. Simpson never takes the witness stand. This is an effort to hide behind a lawyer's argument and a lawyer's statement so that he will not have to take the witness stand and face cross-examination. If Mr. Simpson wants to testify, let him do so. As I said before, we welcome the opportunity to hear what he has to say, but to hide behind implication, inferences and innuendoes that are improperly made before this Court is highly inappropriate and unethical and a deliberate effort to thwart justice and prejudice the right of the People to a fair trial. So no further reference should be allowed by this Court to be made by any statement by the Defense as to the ends that I have indicated and the jury should be order to disregard any statement thus far and should also be instructed to the effect that Mr. Scheck acted in an unethical manner in doing so.
THE COURT: Mr. Scheck.
MR. SCHECK: Your Honor, I don't think there is anything wrong. There is evidence that Mr. Simpson gave a statement. The contents of it are not in the record and we went down that road. The question I asked Mr. Yamauchi, which is an area which I think I'm entitled to explore, and to get his answers under oath, are to what extent he has knowledge about information from robbery/homicide. Now, I did not ask what I think would be objectionable questions, and that is are you aware that Mr. Simpson said A, B, C and D? That I can't ask, but I can ask, and in fact it is foundational to some more questions that I want to ask him now, about was he aware or did he know that Mr. Simpson made the statement? Did he know it through Dennis Fung? Did he know it through Greg Matheson? Did he know it from listening to news reports? Now, if he says, yes, that he was aware of it, then I might be able to go further in terms of what he knew in terms of the door that they opened. I obviously can't say by my questions did he--were aware that Mr. Simpson said A, B, C and D? But I am allowed to ask whether he was aware that Mr. Simpson made a statement, and the fact is, on--that we've already had in the record the fact that Mr. Simpson went down, and the evidence has been, that Detective Vannatter and Detective Lange took a statement from him, so the jury knows this is even--there was one other incident, as I recall, and the Court will recall the details a little better than I, I'm sure, where there was another door opening problem with respect to characterizations of what he did or didn't say with respect to the other detectives. But my--I believe my question was very careful and I think I am allowed--what I want to ask, frankly, and I would like the Court to rule, is whether I am allowed to ask him--
(Discussion held off the record between Defense counsel.)
MR. SCHECK: Yes. Actually the witness is here. Maybe he should--
THE COURT: It has nothing to do with what I'm going to rule upon here.
MR. SCHECK: Okay. Well, I wanted to propose further questions along this line that I think I should be entitled to ask as to the state of this witness' knowledge, without getting into the contents.
THE COURT: What is the relevance of that?
MR. SCHECK: What?
THE COURT: What is the relevance of that?
MR. SCHECK: Well, as I understood the Court's ruling with respect to opening the door, and I am not sure the witness should be here for this, but a lot of it turned on the extent to which this witness had knowledge of certain information, via what sources. The Prosecution has elicited hearsay statements with respect to a statement of airtight alibi on their direct examination and deliberately elicited hearsay as to Fung's conversations with Yamauchi and his state of knowledge which I didn't object to and it came out. And the reason I didn't object to it is I want to probe it now and I think I should be entitled to probe it. Now, I want to probe it in a way, and I think I have done it in a way that is perfectly responsible, where I'm not saying what Mr. Simpson said. I'm not introducing the content. I think I'm perfectly allowed to establish what, if anything, he knew about whether a statement was taken and what other sources of information he had through Dennis Fung about facts that came via robbery/homicide. I mean, the Court made a ruling at a certain point with respect to door opening that was based on the representations of the Prosecutors as to what Mr. Yamauchi would say and what he had said so far on direct. I think I am allowed to go into the state of his knowledge to see whether or not, umm, I can elicit more information that will allow me to go somewhat further. To do it carefully, but I think that under the Court's ruling I am allowed to do that.
THE COURT: Don't we have a huge 352 problem here, though?
MR. SCHECK: Well, the 352 problem I don't think applies with respect to information that Mr. Yamauchi would get via the detectives of robbery/homicide that would go to the analysis of samples. Now, with respect to whether or not the blood at Rockingham was undisputedly Mr. Simpson's, or whether he had any information to that effect, without saying that that--Mr. Sims said that is relevant in terms of how the samples were handled and what he knew and whether the samples should have been handled at the same time and the level of DNA content of the samples. That is all relevant. I think I indicated to the Court before I was going to go down that road and that is one of the things I wanted to explore with this witness. And frankly--
THE COURT: To couch your questions in terms of a statement that you cannot bring in through this witness I think is unduly confusing and time consumptive, isn't it?
MR. SCHECK: Well--(Discussion held off the record between Defense counsel.)
MR. SCHECK: Your Honor, before I propose that, can I again ask that Mr. Yamauchi be excused for just a minute if we are going to discuss what he will or will not say?
THE COURT: I hate to take a whole lot of time.
MR. SCHECK: Well, your Honor--
THE COURT: Mr. Yamauchi, why don't you step outside.
(Mr. Yamauchi exited the courtroom.)
THE COURT: Thank you. Mr. Scheck.
MR. SCHECK: Yes. Obviously this area also goes to the whole issue that they brought up of examiner bias and what the source of his knowledge was and wasn't. They brought it up; not me. And they brought it up earlier in terms of Detective Lange volunteering this. Now, I think I am allowed to go into--I mean, just because the Prosecutors get up and say he didn't know anything except what he heard on television doesn't mean I can't probe it on cross-examination. Frankly, I think it is highly incredible that we have in the notes of Matheson that Yamauchi was present at a meeting between him and Detective Lange and along with Mr. Fung, and that Detective Lange was in the evidence processing room--well, was in SID that morning and this man has no recollection of even seeing him. I mean, I think it is perfectly clear that we should be able to explore whether his memory got very convenient about what contact he had with the investigators and what Mr. Fung told him the investigators believed and the basis for the investigator's knowledge, because to the extent that he has knowledge of that, it goes to the issue of examiner bias and it goes, frankly, to the issue of how much--how far that door can be opened. And I don't see why I'm restricted in cross-examination from exploring those areas when they brought it up, just because they say, oh, he heard it all from news reports and it doesn't have any--it didn't emanate at all from the police. Why should I be bound by that? I should be able to explore what information he got from the police, without explicitly indicating what the content of the statement is.
THE COURT: But you can't do it without bringing in the contents of statements if what you suggest is true.
MR. SCHECK: Well, I didn't--I haven't gone that far yet. All that I have said, and I have been very careful, that is the point, I asked him whether he knew through Mr. Fung or through police that there was a statement. The next question I want to ask him is that he said that he had listened to news media reports, was he aware that Mr. Simpson had made a statement through news media reports. That is all. I mean, we've all seen the videotapes where Mr. Simpson was taken down to the Parker Center and there was reports of the statement being made.
THE COURT: We have all seen that. The jury has not seen it.
MR. SCHECK: I understand that.
THE COURT: At least not part of this record.
MR. SCHECK: But what is part of the record is that they had him testify to airtight alibi. Now they get up and say be assured none of that information came through detectives at robbery/homicide; all of that information came through television news media broadcasts. Well, if that is the case, I think I should be able to ask him if he learned through television news media broadcasts on the evening of June 13th that Mr. Simpson had made a statement. And if he did learn that from television news media broadcasts, why shouldn't I ask him if he inquired of Mr. Fung about that statement and about what the--what the detectives had told him? I mean, I think I should be allowed to go down that line without getting into the content of the statement.
THE COURT: All right. I'm going to sustain the 352 objection to that. I think it is way too overbroad. It takes us down avenues that we don't need to go with this particular witness. You are directed not to ask any further questions regarding statements made by Mr. Simpson. Let's proceed.
MR. SCHECK: Your Honor, can I then make the request, if that is going to be the ruling, that the jury should be, umm, instructed to disregard the statement he made about airtight alibi?
THE COURT: I will tell them that.
MS. CLARK: Your Honor--
THE COURT: Let's proceed.
MS. CLARK: Your Honor, this is in direct derogation to your own order before saying there was no 356 problem here. The witness was testifying to his state of mine based on a newscast.
THE COURT: Counsel, that should not have been gone into in the first place. I then asked, if you recollect, I asked the Defense if they wanted it stricken. They indicated they did not. Let's have Mr. Yamauchi.
(Brief pause.)
THE COURT: Let's have the jurors.
(Brief pause.)
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Let the record reflect that we have been rejoined by all the members of our jury panel. Ladies and gentlemen, before we proceed any further, I'm going to instruct you to disregard any testimony by this witness, Mr. Collin Yamauchi, as it relates to any statements alleged to have been made by Mr. Simpson, either on direct examination or on cross-examination. All right. Mr. Yamauchi, would you return to the witness stand, please.
MR. YAMAUCHI: (Witness complies.)
THE COURT: All right. Good morning again, Mr. Yamauchi. You are reminded, sir, you are still under oath. Mr. Scheck, you may continue.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: 1159-C.
MR. SCHECK: Mr. Yamauchi, was it part of your training to avoid cutting evidence items with high DNA content in the same period and in the same location as you are dealing with evidence of low DNA content?
MR. HARMON: Objection.
MR. SCHECK: Was that part of your training?
MR. HARMON: It is compound, your Honor.
THE COURT: Rephrase the question.
MR. SCHECK: All right.
MR. SCHECK: As part of your training were you given any instruction on how to handle evidence items that might contain high DNA content and low DNA content?
MR. YAMAUCHI: Well, we already went over this. You can't really know whether some items have high DNA or low DNA by looking at them, so falling back to my normal standard procedure, I make sure I don't open up an evidence item along with another one. In other words, I only work on one item at a time so at no time are two items of evidence opened simultaneously, and I think that would address your question, because if I don't have two of them opened simultaneously, then they wouldn't be done at the same time.
MR. SCHECK: Well, so as far as you are concerned, there are no dangers then of first cutting a sample with high DNA content, putting that aside and then moving to a sample with low DNA content?
MR. HARMON: Objection, it is vague, argumentative, misstates his testimony.
THE COURT: Do you understand the question, Mr. Yamauchi?
MR. YAMAUCHI: I believe I do.
THE COURT: All right. Go ahead and answer it.
MR. YAMAUCHI: Once again, if I sample an item and I don't know what the--the contents of DNA is in there, regardless of that, I sampled that, close it off and take care of everything with that one sample first, and only then my samples encased into one of those microcentrifuge tubes, only after all that is capped and everything is closed off will I move on to another sample.
MR. SCHECK: All right. And so as far as you are concerned, as long as you do sample no. 1, then you take sample no. 2, there is no problem?
MR. HARMON: Objection. It is vague, argumentative.
THE COURT: Overruled.
MR. YAMAUCHI: Following my procedure where I close everything off, no, I don't see a problem with that.
MR. SCHECK: Now, let's move to the DNA extraction phase and the DNA amplification phase. Are you with me?
MR. YAMAUCHI: Okay.
MR. SCHECK: On those two phases was it part of your training to avoid analyzing samples with high DNA content and low DNA content in the same series--in the same run of microcentrifuge tubes?
MR. YAMAUCHI: My procedure of only keeping one tube opened at one time and working on one--one sample at a time goes through to my handling in the amplification process also. So at no given time do I have two tubes opened of extract simultaneously. I will only have one opened at each individual time and I will pipette from that into the next step, and in that case those two would be opened, but one is receiving the sample.
MR. SCHECK: So it was never part of your training to avoid the extraction phase or the amplification phase doing in the same run samples with high DNA content and low DNA content just in case there was inadvertent cross-contamination? That is not part of your training.
MR. HARMON: Objection. That is compound.
THE COURT: Overruled. Do you understand the question?
MR. YAMAUCHI: Yes. Once again, they are closed off from each other so there is no way they can contaminate each other.
MR. SCHECK: No way you can make an inadvertence mistake, a mistake you are not aware of?
MR. HARMON: Objection, calls for speculation.
THE COURT: Sustained, sustained.
MR. SCHECK: You received no training to avoid situations with high DNA content and low DNA content samples in analysis to lower the risk of cross-contamination? That is not part of your training?
MR. YAMAUCHI: Once again, the whole procedure by which I sample and do the analyses precludes that from happening because I separate each and everything off from each other.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: 1159-D.
MR. SCHECK: Is it part of your training not to cut evidence samples from two different crime scenes in the same place during the same period of time?
MR. HARMON: Objection. That is compound.
THE COURT: Sustained.
MR. SCHECK: All right.
MR. SCHECK: In the evidence processing room, within a half hour period taking sample after sample, was it part of your training to avoid cutting samples from different crime scenes in the same series?
MR. YAMAUCHI: Once again, my procedure, I don't allow two items of evidence opened at the same time. I do them one at a time.
MR. SCHECK: So since you do the evidence items one at a time, it doesn't matter to you that you will handle evidence item no. 1 from one crime scene and then you move to evidence item 2 from another crime scene?
MR. YAMAUCHI: It is not happening at the same time.
MR. SCHECK: Well--
MR. YAMAUCHI: I sample everything one by one.
MR. SCHECK: You have--you do a series of five items. Are you with me?
MR. YAMAUCHI: Okay.
MR. SCHECK: Item 1 comes from crime scene no. 1. You finish with that, then you go to item 2 from crime scene no. 2. You to go item number 3 from crime scene no. 3. You go to item 4 from crime scene no. 4, item 5 from crime scene no. 5. No problem with that?
MR. YAMAUCHI: Provided the conditions and the procedure that I use is in effect where I make sure each item of evidence is closed off from the next one to eliminate chances of cross-contamination, that is fine.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: 1159-F.
MR. SCHECK: Your answer would be the same with respect to handling samples from a suspect and a victim in a series?
MR. YAMAUCHI: Yes. My answer is the same using my protocol and procedure.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: 1159-E.
MR. SCHECK: Now, Mr. Yamauchi, let's talk about handling reference samples from a suspect and evidence samples. Do you not agree that a reference sample from a suspect creates a special danger of cross-contamination?
MR. YAMAUCHI: If mishandled, of course it would create a danger, but if it is handled correctly, there is no danger.
MR. SCHECK: Would you agree that reference samples contained highly concentrated amounts of DNA?
MR. YAMAUCHI: They have--yeah, they have a good amount of DNA in them.
MR. SCHECK: Well, the blood from a reference sample, you would expect to have--to be much more highly concentrated in terms of its DNA content than the blood swatches that you handled on the morning of June 14th?
MR. YAMAUCHI: How would I know that?
MR. SCHECK: You wouldn't--
MR. YAMAUCHI: You can't tell by--I'm sorry. Can I finish?
MR. SCHECK: I thought you had.
MR. YAMAUCHI: Well--
MR. SCHECK: You asked me how would you know? Let me pose another question to you. Okay?
MR. HARMON: Your Honor, I think he was going to embellish.
THE COURT: Have you completed your answer?
MR. YAMAUCHI: Well, I would like to add something.
THE COURT: All right. Answer the question.
MR. YAMAUCHI: Okay. In terms of looking at swatches, you can't tell the quantity or quality of DNA that is on them just by looking at it. It is not scientifically possible to do that kind of assessment. You can give--you can give a ballpark guess, but you can't know.
THE COURT: Next question.
MR. SCHECK: Mr. Yamauchi, is it not fundamental laboratory practice to assume that the blood from the reference sample of a suspect is going to be much more highly concentrated in terms of its DNA than the sample that you will get from an evidence specimen?
MR. YAMAUCHI: That is not always the case. Sometimes you can get evidence samples that are very concentrated in DNA.
MR. SCHECK: My question to you, sir, is: Isn't it fundamental laboratory practice to assume, when examining a reference sample and examining an evidence sample, that the reference sample is going to have much more highly concentrated DNA?
MR. HARMON: Objection. It is argumentative, no foundation.
THE COURT: Overruled.
MR. YAMAUCHI: No, I can't assume that. I treat all my samples the same way with the same proper precautions that I explained earlier.
MR. SCHECK: So you make no special exception for handling a suspect's reference sample?
MR. YAMAUCHI: Well, I may take a smaller piece, a smaller cutting.
MR. SCHECK: When handling a vacutainer tube with a Defendant's reference sample, there is a danger of aerosols or sprays when the tube is opened?
MR. YAMAUCHI: Well, there is if you just open the cap up, but if you do as I explained earlier, and put chem wipes over the top of the cap and carefully open up the cap, any aerosol that would be caused would be trapped in the chem wipe. And in that way, rest assured that my procedure is good at keeping any such aerosols from contaminating anything else.
MR. SCHECK: And when opening these tubes there tends to be blood on the caps?
MR. YAMAUCHI: Yes.
MR. SCHECK: And that can present a danger, when you handle it, of getting blood from the cap on your hand or on other items?
MR. YAMAUCHI: Well, yes, and I keep the cap inside of the wad of chem wipes.
MR. SCHECK: And when you are handling a reference tube, there is a danger in opening it of spills?
MR. YAMAUCHI: Well, anytime you hold a vial or a glass of liquid there is a danger of a spill.
MR. SCHECK: And when you are handling these fitzco--you make a fitzco card by pouring how many drops of blood in each of the four quadrants of the card?
MR. YAMAUCHI: I said approximately 250 microliters, 200 to 250, and I don't pour it out of the tube; I use a pipetter.
MR. SCHECK: And how many drops would it take to fill up one of those 250 to 500 microliter quadrants in the card?
MR. YAMAUCHI: I think I said 200 to 250.
MR. SCHECK: How many drops? 200 to 250.
MR. YAMAUCHI: Microliters.
MR. SCHECK: Yes.
MR. YAMAUCHI: How many drops?
MR. SCHECK: Yes, for each quadrant?
MR. YAMAUCHI: You know, I couldn't tell you.
MR. SCHECK: And these cards are wet when you first drop the blood on them?
MR. YAMAUCHI: Are they wet before I drop the blood on them?
MR. SCHECK: No, afterward?
MR. YAMAUCHI: Well, blood is wet. Obviously it is going to be wet after you drop the blood on the card.
MR. SCHECK: Right. And in handling those cards one must protect against the danger of cross-contamination with reference blood?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, is it part of your training that evidence samples and known exemplars or reference samples be extracted at different times and/or locations?
MR. HARMON: Objection. That is compound, your Honor.
THE COURT: Sustained.
MR. SCHECK: Have you ever heard the expression that evidence sample and known exemplars be extracted at different times and/or locations?
MR. YAMAUCHI: Once again, my whole practice and procedure allows for every evidence item to be handled separately from another, so it is always happening at a separate time and place. I make sure that none of my evidence is opened up simultaneously. I--once again, I open up an item of evidence, I work on that. After I'm done, I close that off and make sure it is away and in no way allowing the opportunity for that to contaminate with anything else, and then I go onto the next item.
MR. SCHECK: Mr. Yamauchi, my question to you has--was not for you to repeat again, but my question was have you ever heard the phrase that evidence samples and known exemplars are extracted at different times and/or locations? Have you ever heard that?
MR. YAMAUCHI: Yes, and once again, my protocol--
MR. SCHECK: The answer is yes?
MR. YAMAUCHI: --protocol addresses that--
MR. SCHECK: The answer is yes, right?
MR. YAMAUCHI: That is what I said, yes.
MR. SCHECK: Thank you. And that is in fact a phrase that is in section 25 of your protocol?
MR. YAMAUCHI: Well, I can take your word for it or you can show it to me.
MR. SCHECK: Well, first, does it ring a bell with you as an important phrase or admonition?
MR. YAMAUCHI: It sounds familiar, yes.
MR. SCHECK: All right. I show you this document. I call your attention to the last paragraph there. Does that refresh your recollection as to what your protocol contains?
MR. YAMAUCHI: Yes.
MR. SCHECK: Do you rely on that section, that paragraph that is contained in section 25 of your protocol?
MR. YAMAUCHI: Yes.
MR. SCHECK: That is under the section of "Quality assurance program"?
MR. YAMAUCHI: Yes.
MR. SCHECK: And this section says: "To assure that no contamination occurs between known samples and evidentiary samples in a case, the exemplars and evidentiary samples are extracted at different times and/or locations," right?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, first of all, let's get some phrases down. Do you take it to mean that known samples and exemplars would refer to a suspect's reference sample?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, do you interpret this section of your protocol to permit you to do an extraction of the Defendant's reference sample in the same run as evidentiary samples?
MR. YAMAUCHI: Yes, and that is the whole idea behind the precautions that I take, to make sure that I don't open up more than one evidence item at the same time and so on and so forth with the tubes that are being transferred from one extraction into the amplification tube. These are not allowing any more than one tube to be opened at a time.
MR. SCHECK: Now--
MR. YAMAUCHI: And that is the reason why I do it that way, to address that particular issue.
MR. SCHECK: You think that when you are handling a series of tubes that contained evidence samples and one that contains the Defendant's reference samples in one run that you are complying with that section of the protocol?
MR. HARMON: Objection. That is argumentative, your Honor.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right.
MR. SCHECK: Let's assume, as you have stated, that you are opening each of the tubes that contains the samples and closing them one after another.
MR. YAMAUCHI: I only open one at a time.
MR. SCHECK: You open one at a time. Let's assume that. Okay?
MR. YAMAUCHI: Okay.
MR. SCHECK: Do you interpret your protocol as permitting you to do extractions with this series of tubes, all right, in one extraction session, including the Defendant's reference sample and evidentiary specimens, as long as you do them one at a time?
MR. YAMAUCHI: Provided the strict precautions that I use in handling my evidence is taken into consideration, that is all right.
MR. SCHECK: So you interpret the phrase "At different locations and/or times" in a way that doesn't include a situation such as this case, where you handled Mr. Simpson's reference--you extracted Mr. Simpson's reference sample on the morning of June 14th in the same series where you did the Bundy samples?
MR. HARMON: Objection. It is vague, compound, argumentative.
THE COURT: Sustained.
MR. SCHECK: Let me try it this way: On the morning of June 14th you did an extraction on Mr. Simpson's reference sample?
MR. YAMAUCHI: Yes.
MR. SCHECK: On the morning of June 14th you did an extraction on the Bundy samples?
MR. YAMAUCHI: Yes.
MR. SCHECK: That was in the series of 23 tubes that you were doing in one day?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you did those extractions in the serology laboratory?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you did it in your hood?
MR. YAMAUCHI: Part of the time.
MR. SCHECK: And the location was either your hood or your desk right next to the hood where you were doing these extractions?
MR. YAMAUCHI: My work station and the hood, yes.
MR. SCHECK: That was the location?
MR. YAMAUCHI: Locations.
MR. SCHECK: And the time that it took you to do the extraction on these 23 tubes was how long?
MR. YAMAUCHI: It is approximately an hour and a half that that process would take place over.
MR. SCHECK: And as far as you are concerned, your protocol says it is perfectly all right to handle Mr. Simpson's reference tubes along with those 23 samples in that location during that timing period? That is perfectly fine?
MR. YAMAUCHI: Sure, provided you take the precautions that I take.
MR. SCHECK: Did you hear Dr. Cotton testify as to the precaution that she takes in terms of extracting reference samples separate from other extractions up until the amplification phase, and I'm referring to page 277305 of Dr. Cotton's testimony?
MR. HARMON: Objection, still hearsay, beyond the scope, your Honor.
THE COURT: Sustained.
MR. SCHECK: Are you familiar with the practices of other laboratories in terms of extracting evidence samples and Defendant's reference samples?
MR. YAMAUCHI: I'm not familiar with other People's protocols and procedures. I just know that we have ours and it has got a lot of bases back to the Roche user guide.
MR. SCHECK: In terms of your training, did you investigate the methods used by other laboratories in terms of extracting reference samples and evidentiary samples?
MR. YAMAUCHI: Did I--did I investigate other People's protocols and procedures as to that?
MR. SCHECK: Yes.
MR. YAMAUCHI: No, I don't think so.
MR. SCHECK: You said you have some recollection of the CACLD studies. Does that recollection include anything about how a false positive occurred in terms of extracting a suspect's reference sample at the same time as evidentiary specimens?
MR. HARMON: Objection, hearsay, beyond the scope.
THE COURT: Sustained.
MR. SCHECK: Now, before discussing the way you handled Mr. Reference--Mr. Simpson's reference tube and evidentiary specimens in the evidence processing room on the morning of June 14th, I would like to ask you a few questions about your note keeping practices. Have you taken a look at the way notes are prepared at the Department of Justice?
MR. YAMAUCHI: I haven't seen their notes.
MR. SCHECK: Did you have--did you see any of the testimony with respect to note taking from Gary Sims or Renee Montgomery?
MR. HARMON: Objection. Calls for hearsay, beyond the scope.
THE COURT: Overruled. He can say whether or not he saw that.
MR. YAMAUCHI: No, I don't recall.
MR. SCHECK: Do you believe it is important that notes are detailed with respect to the order in which samples are handled?
MR. YAMAUCHI: (No audible response.)
MR. SCHECK: Laboratory notes?
MR. YAMAUCHI: Would you be more specific?
MR. SCHECK: I will try. Do you think that laboratory notes should be specific as to the order in which the analyst handles samples?
MR. YAMAUCHI: You mean write out what time or everything that you handle each sample?
MR. SCHECK: Well, let's just start with order and not with specific time. Should your notes reflect the order in which you handled samples and performed analysis on samples?
MR. HARMON: Objection. That is compound, your Honor.
THE COURT: Sustained.
MR. SCHECK: Start with ordered samples--handled samples. Should they reflect the order in which you handled samples?
MR. YAMAUCHI: Notes--the reason why anybody takes notes is to ensure that--
MR. SCHECK: Move to strike as unresponsive. My question is simply this--
THE COURT: Sustained. Do you understand the question, sir? Is it important to note the order in which samples are handled?
MR. YAMAUCHI: I would say that it is important, but it is not the most critical issue of note taking.
MR. SCHECK: Is that something that you do in your notes in terms--do you list the order in which you will handle samples?
MR. YAMAUCHI: Well, in my descriptive notes it come out that way because obviously I'm working on one item and so I've got to describe that, and so on and so forth down the line.
MR. SCHECK: And when you are referring to descriptive notes, would that include the pages that you made out on June 14th on your serology item description sheets?
MR. YAMAUCHI: Yes. That is--that would be what I'm referring to.
MR. SCHECK: And how many pages do you have, referring to your handling of samples on the morning of June 14th and June 15th, these serology item description notes?
MR. YAMAUCHI: (No audible response.)
MR. SCHECK: Do you have a total of five pages, sir?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. Are they numbered in any particular order?
MR. YAMAUCHI: No, they are not.
MR. SCHECK: Your Honor, I would like to ask that these five pages be marked as Defendant's next in order.
THE CLERK: 1185.
MR. SCHECK: 1185.
(Deft's 1185 for id = 5-page serology notes)
MR. SCHECK: Now, I show you these serology item description notes--
(Discussion held off the record between Deputy District Attorney and Defense counsel.)
MR. SCHECK: --five pages, and ask you to look at them and tell me if I have them in the order in which you wrote them?
MR. YAMAUCHI: No, I don't believe so.
MR. SCHECK: All right. Would you please put them in the order in which you wrote them and mark the first page as 1 and go through 5.
MR. YAMAUCHI: (Witness complies.)
MR. SCHECK: Now, Mr. Yamauchi, do you think it is good laboratory practice not to note--withdrawn. Do you think it is good laboratory practice not to write contemporaneously the number on your note pages?
MR. YAMAUCHI: On descriptive notes, no, I don't think it is necessary.
MR. SCHECK: How do you know, sitting here today, which of these you wrote in what order?
MR. YAMAUCHI: I told you that is the way I believe it to be, to the best--and that is to the best of my recollection.
MR. SCHECK: Now, did you figure this out, the order, in terms of what--how you wanted to--what--withdrawn. Did you number these pages in a way that would be consistent with a reconstruction of events that you think would be good for your testimony?
MR. HARMON: Objection. That is argumentative and misstates his testimony.
THE COURT: Sustained, sustained.
MR. SCHECK: Do you have some concern, Mr. Yamauchi, that your analysis of the glove, your sampling from the glove, could have occurred between 9:00 and ten o'clock that morning?
MR. YAMAUCHI: Do I have some concern?
MR. SCHECK: Yeah.
MR. YAMAUCHI: Well, I don't have notes as to what time I sampled that.
MR. SCHECK: You don't, do you?
MR. YAMAUCHI: No, I don't.
MR. SCHECK: And you testified on direct examination that you think it happened some time in the morning, maybe in the afternoon?
MR. YAMAUCHI: Well, if you are reading from an official transcript and that is what I said, then yeah, that sounds about right, approximately.
MR. SCHECK: Well, Mr. Yamauchi, could you have analyzed cut samples from the glove between 9:00 and ten o'clock that morning?
MR. YAMAUCHI: Well, according to my notes I was sampling the other swatches, so I don't think that is--that is very likely. I would have been working on that.
MR. SCHECK: Well, your notes indicate that you sampled the Bundy blood drops between 10:00 and 11:00?
MR. YAMAUCHI: Yes.
MR. SCHECK: And that you sampled the two exemplars from Miss Nicole Brown Simpson and Ronald Goldman between 11:00 and 11:20?
MR. YAMAUCHI: The--well, they were--you mean the samples that were taken at the scene at that point to act in lieu of having the actual exemplars? Yes.
MR. SCHECK: And you had a conversation that morning with Mr. Matheson and Mr. Fung at around 7:30, eight o'clock?
MR. YAMAUCHI: That is not in my notes, but that is approximately--I talked to Greg somewhere in there or Greg and Dennis.
MR. SCHECK: Have you looked at Mr. Matheson's notes as to what time he recalls the conversation occurring?
MR. YAMAUCHI: No, I haven't seen his notes.
MR. SCHECK: Have you discussed it with him?
MR. YAMAUCHI: Discussed what time I talked to him?
MR. SCHECK: Yeah, when a meeting occurred between you and him that morning?
MR. YAMAUCHI: No.
MR. SCHECK: Now--your Honor, may I put page 1 of 1185, as he has numbered it, on the elmo?
THE COURT: Yes.
(Brief pause.)
MR. SCHECK: Now, let's start reading page 1 of 1185 from the top. Mr. Harris, could you just move it a little to the left.
(Brief pause.)
MR. SCHECK: No, no, I meant to the right. All right.
MR. SCHECK: At the top you indicate here "117, 115, 114, 112." Now, those are the photo identification numbers for the Bundy swatches, correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then you indicate to the right of that, "From driveway, from walkway, from walkway" and then you have, what do you call it, ditto marks underneath it?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then you have grouped there "Victim's residence," right?
MR. YAMAUCHI: Right.
MR. SCHECK: And that reflects the notes you took on your conversation with Mr. Fung that morning on what he was telling you those samples represented?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then below that you have "106 and 107" and those reflect the exemplars from Mr. Goldman and Miss Simpson?
MR. YAMAUCHI: Well, what would at that time be used in place of them, yes.
MR. SCHECK: And one of them indicates "Off the stump," the other one indicates "Concrete."
MR. YAMAUCHI: Yes.
MR. SCHECK: And then you have next to that, "These samples not true exemplars," right?
MR. YAMAUCHI: Right.
MR. SCHECK: And then the next thing you wrote is "Glove," right? Can you read that line to us?
MR. YAMAUCHI: "No. 9"--"No. 9 glove" and then there is "Brn," I think that means brown, because that is what--these are all my notes. That means brown. "Brown glove with red stain as per Fung" and then in parentheses "Via RHD O.J.'s cut on left hand" and then underneath "Next page."
MR. SCHECK: What does that say underneath?
MR. YAMAUCHI: "Next page."
MR. SCHECK: Next page, but the next page that you numbered for me just a minute ago is your drawings of the Bundy swatches, right?
MR. YAMAUCHI: Yes.
MR. SCHECK: And page 3 of what you numbered for me is a diagram of the glove?
MR. YAMAUCHI: Yes.
MR. SCHECK: So Mr. Yamauchi, when you put down "Glove" and then "Next page" under that, were you not referring to the diagram you made of the glove?
MR. YAMAUCHI: You know, that makes good sense. That is probably the order that went in.
MR. SCHECK: So page 3 is page 2, isn't it?
MR. HARMON: Objection. How could that be?
THE COURT: Overruled. Do you understand the question?
MR. YAMAUCHI: Yeah. If you are talking--referring to the numbers, yeah, you had me put on the pages, yes, but once again, I don't number my pages.
MR. SCHECK: I understand, but looking at your notes and reconstructing it now, what you labeled as page 3 should be page 2?
MR. YAMAUCHI: It seems that way, yes.
MR. SCHECK: All right. Do you mind if I renumber them with the Court's permission?
MR. YAMAUCHI: Go right ahead. Sure.
(Brief pause.)
MR. SCHECK: Now, turning back to page 1, the next entry down refers to Mr. Simpson's blood vial, reference tube?
MR. YAMAUCHI: Yes.
MR. SCHECK: And indicates what you did underneath that is you wrote down what you saw on the outside of the tube? Isn't that what you did?
MR. YAMAUCHI: Yes, the ones in the quotes.
MR. SCHECK: And then what appears to be the bottom right-hand side as we are looking on the screen you have a line that indicates "Used about one milliliter for swatching," correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, looking at your notes now, Mr. Yamauchi, in terms of the order in which you listed the items, does it not appear that you handled the glove, as your diagram on what we now agree as page 2 indicates, you sampled the glove before you did the Bundy swatches?
MR. YAMAUCHI: Yes, that is possible.
MR. SCHECK: Your Honor, I think this is a good place to stop.
THE COURT: All right. Ladies and gentlemen, we are going to take our recess for the morning session. Please remember all my admonitions to you. Do not discuss this case amongst yourselves, don't form any opinions about the case, don't conduct any deliberations until the matter has been submitted to you, don't allow anybody to communicate with you with regard to the case. We will stand in recess until one o'clock. All right. Mr. Yamauchi, you can step down.
(At 12:03 P.M. the noon recess was taken until 1:00 P.M. of the same day.)
LOS ANGELES, CALIFORNIA; TUESDAY, MAY 30, 1995 1:05 P.M.
Department no. 103 Hon. Lance A. Ito, Judge
APPEARANCES: (Appearances as heretofore noted.)
(Janet M. Moxham, CSR no. 4855, official reporter.)
(Christine M. Olson, CSR no. 2378, official reporter.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record. All parties are again present. Let's have the jurors.
MR. COCHRAN: Can I make one statement?
THE COURT: Mr. Cochran. Oh, yes. Good afternoon, Mr. Cochran.
MR. COCHRAN: Good afternoon, your Honor. Your Honor, I wanted to just take this brief moment to--in an effort to set the record straight. There are a number of rumors in this case. There are a plethora of rumors flourishing around this case, but this one I thought I would take the opportunity to address the Court on and set the record straight. There are not now nor have there been nor will there be any plea bargain discussions in this case. This is a case where there is no plea bargain, will be no plea bargain, and I thought I should make the record clear in that regard. And you've heard all these rumors and I wanted to put them to rest once and for all. Thank you, your Honor.
THE COURT: Thank you, Mr. Cochran. 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. And, Mr. Yamauchi, would you resume the witness stand.
Collin Yamauchi, the witness on the stand at the time of the lunch recess, resumed the stand and testified further as follows:
THE COURT: All right. Let the record reflect that we've been rejoined by all the members of our jury panel. Good afternoon, ladies and gentlemen.
THE JURY: Good afternoon.
THE COURT: Mr. Collin Yamauchi is again on the witness stand undergoing cross-examination by Mr. Scheck. Good afternoon again, Mr. Yamauchi. Sir, you are reminded you are still under oath. Mr. Scheck, you may conclude your cross-examination.
MR. SCHECK: Thank you, your Honor. Good afternoon, ladies and gentlemen of the jury.
THE JURY: Good afternoon.
CROSS-EXAMINATION (RESUMED) BY MR. SCHECK
MR. SCHECK: Good afternoon, Mr. Yamauchi.
MR. YAMAUCHI: Good afternoon.
MR. SCHECK: Now, we were discussing before we took our lunch break notes. And would you agree that there is an important scientific reason that one makes lab notes that are detailed?
MR. YAMAUCHI: Important scientific reason? Okay. You're going to have to explain and be more specific about what you mean by detailed.
MR. SCHECK: Well, do you believe that it is important for purposes of another scientist looking at your notes and trying to evaluate exactly what you did and how you did it that your notes be detailed as to what procedures you performed and the order in which you did them?
MR. HARMON: Objection. That's irrelevant, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: We have protocols and procedures manuals that state and explain exactly how we operate and what conditions we use and everything like that's available. Notes are taken to aid in recollection and to help an analyst recall and remember important points that are happening through the examination process.
MR. SCHECK: So you're saying, sir--are you saying, sir, that you have a protocol in place and there's no need to take detailed notes as to what you did and the order in which you did it because one can just simply assume that you followed the protocol?
MR. HARMON: Objection. That's compound.
THE COURT: Sustained.
MR. SCHECK: Well, in your answer, you just indicated that you--did you indicate, sir, that it's not important to take detailed notes as to what you did and the order in which you did it because one can just rely on the assumption that you followed everything that's in your protocol?
MR. HARMON: Objection. That's argumentative.
THE COURT: Overruled.
MR. YAMAUCHI: Well, sure. The protocol is there to represent what we do and the manner in which we do it. There are guidelines set up so that the analyst has a way and a reference to know the proper techniques. That's what that's for.
MR. SCHECK: Well, aren't there many important issues of evidence handling that are not addressed in your protocol?
MR. HARMON: Objection. That's argumentative.
THE COURT: It's vague.
MR. SCHECK: Are there important issues of evidence handling that are not addressed in your protocol?
MR. YAMAUCHI: You would have to be more specific.
MR. SCHECK: Well, the evidence handling section of your protocol is two pages long, isn't it?
MR. YAMAUCHI: Well, you can show it to me. Otherwise, I'd have to take your word for it.
MR. SCHECK: Would you like to see it?
MR. YAMAUCHI: Well, if you're going to ask me about it, yes, please.
MR. SCHECK: No problem.
MR. YAMAUCHI: Thank you.
(Brief pause.)
MR. SCHECK: Section 4 of your protocol is entitled "Evidence handling."
MR. YAMAUCHI: Okay.
MR. SCHECK: Is that right?
MR. YAMAUCHI: If that's what it says there.
MR. SCHECK: Well, Mr. Yamauchi, you take a look at it and you satisfy yourself. Don't take my word for anything. You look at it. Does that look familiar to you?
MR. YAMAUCHI: Yes.
MR. SCHECK: Is that the section, section 4 of your protocol that deals with evidence handling?
(Brief pause.)
MR. YAMAUCHI: If this is a copy from our--from our protocol and procedures manual, I'll take your word for it.
MR. SCHECK: It's what they gave me.
THE COURT: All right. Proceed.
MR. SCHECK: Now, Mr. Yamauchi, your section on evidence handling doesn't discuss how swatches, bloodstain swatches ought to be handled in the evidence processing room when they're collected?
MR. HARMON: Objection. Beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: Well, I would have to read through this thing again to refresh myself completely, but what you're talking about doesn't sound like it's a complete issue for our unit. That sounds like it's an issue that has to do with processing of evidence that would be associated with a crime scene investigation.
MR. SCHECK: So the DNA unit has nothing to do with the way that bloodstain evidence is collected at a crime scene, dried and packaged in the evidence processing room?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained.
MR. HARMON: Your Honor, this is the PCR protocol.
THE COURT: Sustained.
MR. SCHECK: Well, Mr. Yamauchi, did I understand your answer to the last question correctly, that the evidence--that the procedures used in handling blood swatches from the point of their collection to their drying in the evidence processing room and their packaging in coin envelopes and bindles in the evidence processing room has no relationship or is not covered under the responsibilities of the DNA unit?
MR. HARMON: Objection. It's compound. It's argumentative.
THE COURT: Overruled.
MR. YAMAUCHI: No. Actually, they are two separate issues.
MR. SCHECK: So from the point of view, from your point of view as an analyst in the DNA unit, the collection, drying and packaging of bloodstains is not for purposes of d--stains that are going to be used for DNA testing is not part of your responsibility?
MR. HARMON: Objection. It's argumentative, misstates his testimony.
THE COURT: Sustained. Rephrase the question. Do you need to be there with this exhibit?
MR. SCHECK: I will be in a second, yes.
THE COURT: My only concern is, you're standing between juror no. 7 and the witness.
MR. SCHECK: I'm sorry. I'm sorry. Thank you very much, your Honor.
THE COURT: All right.
MR. SCHECK: Still experimenting with how to configure myself in this courtroom.
THE COURT: All right. Address the witness.
MR. SCHECK: Mr. Yamauchi, when you and Miss Riley and others were sitting up your DNA unit, you did not regard it as part of your responsibility to monitor the methods that were used for the collection and packaging and drying of bloodstain evidence that would be tested in your DNA unit?
MR. HARMON: Objection. It's argumentative, assumes facts not in evidence.
THE COURT: Sustained.
MR. SCHECK: All right. Did you regard it as part of your responsibility, meaning the DNA unit, to review and monitor the procedures that were used for the collection, drying and packaging of blood swatches that would be subjected to DNA testing?
MR. YAMAUCHI: That's the responsibility of the trace unit, and they would be open to any advice that we give them. As far as the handling or implementation of any newer protocols and procedures in their end of the laboratory, that's kind of out of my hands. Erin Riley has done training where she's explained handling of evidence and collection. But personally, no, I haven't been involved in that directly.
MR. SCHECK: Was it part of your training--withdrawn. Did the issue arise in your training that the collection and handling of biological evidence before the formal DNA testing starts can result in cross-contamination of samples?
MR. YAMAUCHI: Well, of course that's possible, but I don't think it's probable.
THE COURT: Mr. Scheck, why don't you turn the podium to face the witness, please.
MR. SCHECK: I'm sorry.
MR. SCHECK: Now, in the evidence handling section of your protocol, is there anything in there about how to handle a suspect's reference tube?
MR. HARMON: Objection. Beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: That's not an issue that this particular area is set up to address.
MR. SCHECK: Is there any section in your DNA protocol that lays out procedures for handling a suspect's reference tube during the process of examining and cutting specimens?
MR. HARMON: Objection. It's beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: I'm really not sure if there is specifically addressing that issue in the detail that you described.
MR. SCHECK: So in terms of how you handle the reference sample of Mr. Simpson in relation to the other crime scene specimens on the morning of June 14th, we cannot get any assistance from the protocol?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained.
MR. SCHECK: Can we get any assistance from the protocol in terms of the procedures that are supposed to be used in handling a reference sample and crime scene specimens?
MR. HARMON: Objection. That misstates his testimony.
MR. SCHECK: I asked if we could.
THE COURT: Overruled.
MR. YAMAUCHI: Quite possibly, there could be something that alludes to what you're getting at. But specifically what you're talking about, I'd have to go through and review the notes and that protocol and dig through it.
MR. SCHECK: But as you sit here today, to the best of your knowledge, there's nothing you can recall here that specifically lays out how a suspect's reference sample is supposed to be handled in the evidence processing room when you're cutting crime scene specimens?
MR. YAMAUCHI: Well as you can see, it's a long protocol. I can't just pull it out of the air. I would have to go look through it.
MR. SCHECK: Well, can you suggest any section other than the evidence handling section where you would expect to find it?
MR. YAMAUCHI: With that specific detail, what you just described, no, I don't think so.
MR. SCHECK: So in terms of the details of how you handled Mr. Simpson's reference sample and the crime scene specimens on the morning of June 14th, would it be fair to say that the written record we would have to rely upon are your notes?
MR. YAMAUCHI: At this point, yes.
MR. SCHECK: And you mentioned just a second ago that one of the purposes of notes is to aid in the recollection by an analyst when you come and talk to a jury about what you did and when you did it?
MR. YAMAUCHI: Not so much when I did it, but what I did. And basically it speaks for itself. We do things in normal--the same fashion over and over again, and we'll take notes if there's anything that's out of the ordinary or that would need--would be needed to refresh your recollection. It's--it's not something that's overly detailed and it's not something that you just scribble a few lines on either because quite obviously, if you're taking notes, you're not working, and if you're working, you're not taking notes. So we have to take a good balance of both in order to get done what we're intending to accomplish. And that's, in the end, to have something to refer back to in case something becomes an issue and say, "Yes, I have that in my notes. I can recollect that now." That's what it's all about.
MR. SCHECK: In the course--I'm sorry. Are you finished, sir?
MR. YAMAUCHI: Yes.
MR. SCHECK: Thank you. In the course of your training, did you consult with other laboratories to see what procedures they used in terms of note keeping?
MR. YAMAUCHI: No.
MR. SCHECK: Have you done many cases since June 14th and 15th of 1994?
MR. YAMAUCHI: Not many.
MR. SCHECK: How many samples do you think you've processed, that is the evidence processing room, since June 14th and 15th of 1994?
MR. HARMON: Objection. It's irrelevant, beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: I haven't processed any samples in the evidence processing room since then.
MR. SCHECK: You have not?
MR. YAMAUCHI: No.
MR. SCHECK: Have you processed them in the serology lab?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. And how many do you think you've processed in the serology lab?
MR. HARMON: Objection. That's irrelevant.
THE COURT: Overruled.
MR. YAMAUCHI: I'd have to go back and check the records to be sure.
MR. SCHECK: Think it would be a hundred or more?
MR. YAMAUCHI: Possibly.
MR. SCHECK: And you could not remember without the aid of notes what you did to those specimens and the order in which you did it?
MR. HARMON: Objection. That's compound.
THE COURT: It's argumentative. Rephrase the question.
MR. SCHECK: Can you remember what you did with those over a hundred specimens since June 15th, what you did and the order in which you did it without notes?
MR. YAMAUCHI: You're asking me in general or in great detail? Because in great detail, yes, I would like to refer to my notes. But in general, I know I would have extracted them and went about the normal procedures that I do for the PCR DQ-Alpha process.
MR. SCHECK: Well, is every case the same?
MR. HARMON: Objection. That's argumentative, irrelevant.
THE COURT: Sustained.
MR. SCHECK: Did you not testify on direct that it is not your custom or practice to prepare detailed notes on items that you sample?
MR. YAMAUCHI: I'd have to see that in its full context.
MR. SCHECK: Did you tell us on direct examination, if you recall, that you take general approximations? That's how you described your note taking procedure, cus--your note taking custom and practice.
MR. HARMON: Objection. It's vague, it misstates his testimony.
THE COURT: Overruled.
MR. YAMAUCHI: When I--when I describe certain items, yes, I do take approximations.
MR. SCHECK: Now, referring to June 14th and your notes of June 14th in the morning, your notes do not indicate when you received Mr. Simpson's reference tube, do they?
MR. YAMAUCHI: I don't believe so, but let me check.
(Brief pause.)
MR. YAMAUCHI: The date I received it is the 14th of June, but not the time.
MR. SCHECK: So in terms of time, you do not have--your notes do not indicate when you received Mr. Simpson's reference tube, true?
MR. YAMAUCHI: That's true.
MR. SCHECK: And they do not indicate when you prepared that fitzco card?
MR. YAMAUCHI: No. There's no time on that.
MR. SCHECK: And they do not in--your notes do not indicate whether you created the fitzco card before or after you did cuttings on the glove?
MR. YAMAUCHI: No. That's not--that's not indicated.
MR. SCHECK: And your notes do not indicate whether you created the fitzco card before, after or during your cutting of the Bundy swatches?
MR. YAMAUCHI: No, they don't indicate that.
MR. SCHECK: Mr. Yamauchi, is your memory improving about how you handled Mr. Simpson's reference sample on the morning of June 14th?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained.
MR. SCHECK: Has your memory been improving since August of 1994, this--I'm sorry. August 19--yes--August of 1994 about how you handled Mr. Simpson's reference tube?
MR. YAMAUCHI: Well, in certain areas. It would depend on what things I would have to spark my recollection.
MR. SCHECK: Well, in August of 1994, you gave some brief testimony concerning your handling of Mr. Simpson's reference tube and the crime scene specimens.
MR. YAMAUCHI: Okay.
MR. SCHECK: Is that true?
MR. YAMAUCHI: Sounds familiar, yes.
MR. SCHECK: You reviewed that testimony before you came here?
MR. YAMAUCHI: Still, that's many pages and that's a while ago too. If you've got specific areas, please show them to me. I would like to see them, and then I'll answer questions about them.
MR. SCHECK: In August of 1994, you were not sure if you received Mr. Simpson's reference sample before or after you received the crime scene samples?
MR. HARMON: Objection. May we have a page and a line?
THE COURT: Sustained.
MR. SCHECK: I'm asking.
THE COURT: The question is not properly formed, counsel.
MR. SCHECK: My apologies.
MR. SCHECK: In August of 1994, were you sure if you received Mr. Simpson's reference sample before or after you received the crime scene samples?
MR. HARMON: Objection. That's compound.
THE COURT: Overruled.
MR. YAMAUCHI: I'm sorry. One more time, please.
MR. SCHECK: Sure. In August, were you sure if you had received Mr. Simpson's reference sample before or after you received the crime scene samples?
MR. YAMAUCHI: I would have just at that time probably been going off my notes. Overall, that's a closer date to the time when it actually happened. So maybe my recollection was a little bit better. But unless I know specifically what you're referring to, I really can't be of much help.
MR. SCHECK: Well, what I'm referring to is, can you remember whether you received Mr. Simpson's reference sample before or after you received the crime scene samples? That's what I'm referring to.
MR. HARMON: Objection. Asked and answered, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: You mean now based upon my notes or you're trying to make me remember what I remembered back then? That's--that's not easy to do.
MR. SCHECK: Mr. Yamauchi, I'm interested in what you can remember now from your own independent recollection as you sit here today and you testify to this jury under oath. Do you know whether you received Mr. Simpson's reference sample before or after you received the crime scene samples, the Bundy swatches and the glove?
MR. YAMAUCHI: I believe I did, yes.
MR. SCHECK: Which? Before or after?
MR. YAMAUCHI: Before.
MR. SCHECK: Before. You sure of that now?
MR. YAMAUCHI: Well, judging by my notes and the order of things that are going on, I--I would say that's the time when I received it.
MR. SCHECK: You received it before?
MR. YAMAUCHI: Yes.
MR. SCHECK: Okay. And--and those are the same notes that you're looking at now that we just went over with the jury, that's 1185, right, page 1?
MR. SCHECK: Put that up on the elmo.
MR. YAMAUCHI: Yes.
MR. SCHECK: Same set of notes that you were looking at when you testified in August?
MR. YAMAUCHI: Yes. Should be.
MR. SCHECK: And isn't it true that the best you could remember in August is that it all happened at approximately the same time? That is, that you received the crime scene samples and the blood vial at approximately the same time, but you weren't sure which you received before and which you received after?
MR. HARMON: Objection. That's compound, misstates his testimony.
THE COURT: Sustained.
MR. SCHECK: In August, was it the best you could remember is that it all happened at approximately the same time?
MR. YAMAUCHI: Is that what I said?
MR. SCHECK: Is that what you said? Is that the best you could remember in August?
MR. YAMAUCHI: Well, you know, if you could allow me to review that part of my transcript, I'd probably be better off answering your questions.
MR. SCHECK: Sure. I'm now reading from page 620 of the Griffen hearing.
MR. SCHECK: Were you asked these questions, did you give these answers--
MR. HARMON: Excuse me, your Honor. He's asked for an opportunity to review the testimony.
MR. SCHECK: Well, I'll now read it to him.
THE COURT: Read it to him.
MR. SCHECK: "Question."
MR. SCHECK: Yes. On page 620, line no. 7.
MR. HARMON: Go ahead.
THE COURT: Mr. Scheck.
MR. SCHECK: Thank you.
MR. SCHECK: "Question: So then you received a reference sample on June 14th? "Answer: Yes. "And did you receive that before or after you received the crime scene samples? "Answer: I'm not sure. "Question: You don't know? "Answer: "Indicates in the record no audible response. "Question: Was it around the same time? "Answer: Approximately, yeah." Were you asked those questions, did you give those answers?
MR. YAMAUCHI: That--yes. That sounds reasonable.
MR. SCHECK: So in August of 1994, about two and a half months after you actually were in the evidence processing room dealing with these samples, you weren't sure when you received the crime scene samples in relation to Mr. Simpson's reference sample, right?
MR. HARMON: Objection. Misstates the testimony that he gave.
THE COURT: Overruled.
MR. YAMAU