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. YAMAUCHI: Yes. And after we've been through this carefully and I've looked through my notes more, that's why now I feel--but I still--and I'm still stating there's no time on here. So I don't know for sure. But based upon my notes, I have a good feeling that that's when it happened, before I received the other evidence.
MR. SCHECK: These notes that we're looking at, 1185, page 1, same notes you were looking at in August, right?
MR. YAMAUCHI: That's correct.
MR. SCHECK: But now on direct examination, you specifically remembered that you received Mr. Simpson's reference tube after a conversation with Dennis Fung, right?
MR. YAMAUCHI: That's right. Since that time, I've had chances to look over my notes more carefully and try to piece together that issue.
MR. SCHECK: Same note, same piece of paper.
MR. YAMAUCHI: That and the rest of my notes.
MR. SCHECK: The other four pages?
MR. YAMAUCHI: Yes.
MR. SCHECK: Do the other four pages say anything about Mr. Simpson's reference sample?
MR. YAMAUCHI: No, they don't.
MR. SCHECK: And you told us on direct examination that you now specifically remember that you went to the end of the table in the evidence processing room by the garage door.
MR. HARMON: Objection. It's vague.
THE COURT: Sustained.
MR. SCHECK: Did you specific--did you go to the end of the table in the evidence processing room by the garage door with Mr. Simpson's reference tube?
MR. YAMAUCHI: Yes. I recall making the blood swatch card in that area.
MR. SCHECK: And that's where--it was in that area that you now specifically recall you made the blood swatch card?
MR. YAMAUCHI: Not specifically. But generally speaking, it was on that end of the room.
MR. SCHECK: All right. And you now can tell us that you made the blood swatch card before you examined the glove?
MR. YAMAUCHI: Judging by the continuity of my notes and the next page entrance here that you pointed out, I would say yeah, that's the most likely scenario.
MR. SCHECK: And you now can tell us that you specifically recall making the fitzco card with Mr. Simpson's reference tube before you did cuttings of the Bundy blood swatches?
MR. YAMAUCHI: Yes. That goes in line with the continuity.
MR. SCHECK: And you can now specifically recall that you went--you were concerned about wind currents when you were at the end of the table in the evidence processing room handling the reference sample?
MR. YAMAUCHI: Wind currents?
MR. SCHECK: Yeah. Didn't you say something about that on direct?
MR. YAMAUCHI: I'm not sure. I don't recall that.
MR. SCHECK: And you now specifically recall that independent recollection--not what you usually do--but you independently recall that you pipetted one--that one milliliter out in your left hand?
MR. YAMAUCHI: I described the procedure that I usually take when I make those cards, and that's to pipette one ml of blood out of the--out of the tube, the reference tube and into the pipetter.
MR. SCHECK: Were you testifying on direct examination about what you usually do or what you independently recall doing on the morning of June 14th?
MR. HARMON: Objection. That's compound, argumentative.
THE COURT: Sustained.
MR. SCHECK: You just said to this jury when I asked you about pipetting with your left hand that you were testifying--that's what you usually do. Did you just say that?
MR. YAMAUCHI: Yes. And to answer your question, it's a little of both.
MR. SCHECK: Well, I'd like you to direct your attention to what you independently remember from the morning of June 14th as opposed to what you think you would have done, okay?
MR. HARMON: That's argumentative, your Honor.
THE COURT: Overruled. Ask questions.
MR. SCHECK: Do you have an independent recollection of walking to the end of that table, the evidence processing room near the garage door?
MR. YAMAUCHI: I have an independent recollection of making that swatch card on somewhere that end of the room.
MR. SCHECK: Now, on direct, you indicated that you walked around to the end of the table, didn't you?
MR. YAMAUCHI: I don't--you're going to have to be more specific about that.
MR. SCHECK: Do you have an independent recollection that you didn't hold the tube in your right hand when you were pipetting with your left, but you put it on a stand?
MR. YAMAUCHI: Yes.
MR. SCHECK: Independent recollection of that?
MR. YAMAUCHI: I would have to put it on a stand.
MR. SCHECK: When you say you have to put it on a stand as opposed to holding it in your right hand, are you telling us that's what you would have done or that's what you independently recall you did?
MR. YAMAUCHI: No. Okay. I don't remember specifically step by step exactly what I did, and that's why I go back to my normal standard practice and procedures.
MR. SCHECK: But when you testified on direct examination, weren't you telling this jury that you had an independent recollection of exactly what steps you took in handling Mr. Simpson's reference sample on the morning of June 14th?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained.
MR. SCHECK: Mr. Harmon asked you very, very specifically, didn't he, did you change your gloves between making the fitzco card with Mr. Simpson's reference sample and then moving on to cut the Bundy swatches? Do you recall that?
MR. YAMAUCHI: Yes. That sounds familiar.
MR. SCHECK: And do you recall when he asked you that question, he said--he asked you if you had an independent recollection that you actually changed your gloves? Do you recall that?
MR. YAMAUCHI: I would have to see the transcripts. I'm not sure I recall that.
MR. SCHECK: Well, then let's get to what you can recall and what you can't. Do you have an independent recollection as you sit here today that you changed your gloves after handling Mr. Simpson's reference sample and then moving on to cut specimens?
MR. YAMAUCHI: Of course I don't remember independently every specific detail. But once again, my procedure and practice is, when I'm doing those blood tubes, I change my gloves.
MR. SCHECK: My question is, do you have an independent recollection that you actually changed your gloves on the morning of June 14th?
MR. HARMON: Objection. Asked and answered.
THE COURT: Overruled.
MR. YAMAUCHI: Yes, I do.
MR. SCHECK: You do?
MR. YAMAUCHI: Yes.
MR. SCHECK: Is your memory of those events, handling Mr. Simpson's blood vial, improving since August?
MR. YAMAUCHI: Well, the way you're making me think about it right now, I had to remember back to what I did with those gloves. And now I recall I had those gloves in my hand, they had blood on them. I would have to get rid of them, and I couldn't get rid of them right in that area at that time. I had to go around and either put them into the receptacle behind me or take it back to serology to dispose of those gloves. And somehow or another, that's what reminds me of taking off my gloves at that point.
MR. SCHECK: Just occurred to you as we're talking right now?
MR. YAMAUCHI: Yeah. You're bringing me back to that time and place where I was doing that and yes, it helped my recollection.
MR. SCHECK: Well, on direct examination, didn't Mr. Harmon ask you about a biohazard bag in the evidence processing room?
MR. YAMAUCHI: He might have.
MR. SCHECK: And that's where you put your gloves? Didn't that come out in the questioning on direct?
MR. HARMON: Objection. That misstates the testimony.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Mr. Yamauchi, in preparing for your testimony in this case, did it come to your attention that mishandling Mr. Simpson's reference sample in relation to the crime scene specimens could be a very significant error?
MR. HARMON: Objection. It's argumentative, calls for hearsay.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: In your discussions in preparation for your testimony, did it come to your attention that mishandling Mr. Simpson's reference tube in relation to the other crime scene specimens on the morning of June 14th would be a very serious error?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained.
MR. SCHECK: Did anybody discuss with you whether mishandling Mr. Simpson's reference tube on the morning of June 14th in relation to other crime scene specimens could be considered a serious error?
MR. YAMAUCHI: Mishandling any evidence item is not a good thing. That's common sense.
MR. SCHECK: In your dis--preparation discussions, was it not brought to your attention that mishandling a reference tube is more serious than mishandling other specimens?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained.
MR. SCHECK: Was it brought to your attention that mishandling a reference tube could be considered more serious than mishandling other specimens?
MR. YAMAUCHI: Well, given any scenario, of course it could be or maybe it wouldn't be. The bottom line is, you don't want to mishandle any evidence or reference sample.
MR. SCHECK: Mr. Yamauchi, in our short discussion here, did you not say that you have an independent recollection now that blood got on your hands when you opened Mr. Simpson's reference tube? Did you just say that?
MR. HARMON: Objection. Misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: Did you get blood on your gloves when you opened Mr. Simpson's reference tube?
MR. YAMAUCHI: Yes. Soaked through the paper.
MR. SCHECK: You remember that now?
MR. YAMAUCHI: Yes, I do.
MR. SCHECK: In other words, didn't you testify before that as you opened the tube, you did it with a chem-wipe?
MR. YAMAUCHI: Yes. And blood soaks through the chem-wipe.
MR. SCHECK: So you're now saying that you have an independent recollection that the blood soaked through the chem-wipe?
MR. YAMAUCHI: Along the tip edges, yeah.
MR. SCHECK: And that's something that you didn't even recall when you were asked about this on direct examination?
MR. YAMAUCHI: Was I asked that specifically?
MR. SCHECK: Well, do you recall being asked how you handled Mr. Simpson's reference tube on direct examination and giving a description?
MR. YAMAUCHI: Yes, I recall describing that process.
MR. SCHECK: And when you gave that description, did you include the fact that the blood went right through the chem-wipe, got your gloves dirty?
MR. YAMAUCHI: No, I don't believe so.
MR. SCHECK: Because--in other words, it's--in our discussion here on cross-examination, this came to you for the first time?
MR. YAMAUCHI: When you started talking in that much detail and you asked these specific questions, given it to the best of my recollection.
MR. SCHECK: Do you feel confident, Mr. Yamauchi, that your recollection of how you handled Mr. Simpson's reference sample on the morning of June 14th is not affected by how you think you're supposed to answer these questions?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained.
MR. SCHECK: Do you--you now recall that you put the fitzco card 10 to 15 feet away from the specimens, the Bundy specimens?
MR. YAMAUCHI: I think I said that on direct.
MR. SCHECK: Yeah. Is that what you remember now?
MR. YAMAUCHI: Yes.
MR. SCHECK: Specifically recall that?
MR. YAMAUCHI: Yes.
MR. SCHECK: But in August, two months afterwards, you weren't even sure whether you got Mr. Simpson's reference tube before or after you received the crime scene specimens; isn't that true?
MR. HARMON: Objection. That misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: Now, this morning, in reviewing your notes a little bit more carefully--well, withdrawn. I shouldn't say that. In reviewing your notes, you agreed that you could have cut samples from the glove before you cut swatches from the Bundy samples?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you began--we know from your notes--and I'm turning to page--
MR. SCHECK: Your Honor, let the record reflect that when I renumbered the pages, I put a cross through and I initialed it.
THE COURT: Noted. Thank you.
MR. SCHECK: Remove that to the left as we look at it.
MR. SCHECK: Now, your notes indicate that you cut the Bundy swatches between 10:00 and 11:00 o'clock, correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: And then if we--
MR. SCHECK: Move it up a little bit. Move it to the right--left. I'm sorry. The other way.
MR. SCHECK: And then you cut the two exemplars from Miss Nicole Brown Simpson and Mr. Goldman between 11:00 and 11:20?
MR. YAMAUCHI: 41 and 42? Yes.
MR. SCHECK: Okay. Now, you know--do you know whether Dennis Fung removed a hair, item no. 19, from the Rockingham glove on the morning of June 14th?
MR. YAMAUCHI: I don't know.
MR. SCHECK: Well, you were not there to witness Mr. Fung--withdrawn. You did not see Mr. Fung remove a hair from the Rockingham glove on the morning of June 14th?
MR. YAMAUCHI: I don't recall that.
MR. SCHECK: All right. You know for a fact--
MR. SCHECK: I always have trouble with the way you want me to formulate these.
MR. SCHECK: Is it true, sir, that Mr. Fung never removed a hair from the Rockingham glove after you did cuttings on June 14th?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Well, after you cut the glove on June 14th, do you have any knowledge of Mr. Fung removing a hair from it?
MR. HARMON: Objection. Calls for hearsay, speculation, no foundation.
THE COURT: Why don't you rephrase the question.
MR. SCHECK: Do you know if Mr. Fung removed a hair from the Rockingham glove after you manipulated and cut it?
MR. YAMAUCHI: I don't know if he did or not.
MR. SCHECK: Your Honor, I would like to put evidence collection page from 1107 on the elmo.
MR. HARMON: No foundation, your Honor.
MR. SCHECK: It's in evidence.
THE COURT: No. It's been marked for identification.
MR. SCHECK: No, no. This is in evidence.
THE COURT: Minor difference perhaps in procedure.
MR. SCHECK: This is in evidence, your Honor.
THE COURT: There's nothing in evidence, counsel.
MR. SCHECK: No, no, no.
THE COURT: Why don't you approach with the court reporter, please.
(The following proceedings were held at the bench:)
THE COURT: What do you want to put in?
MR. SCHECK: These are Mr. Fung's crime scene notes. I want to display them for the jury. I thought it was in evidence. It indicates he removed a hair from the glove 9:00 o'clock.
MR. HARMON: Fine. It's a piece of paper. There's testimony. This is still a piece of paper. This is Fung's--this is a piece of paper by Fung.
THE COURT: No. It's hearsay. The problem is, this is hearsay as to this witness unless he knows about this.
MR. SCHECK: It's a business record. Isn't this in evidence?
THE COURT: Nothing is in.
MR. SCHECK: It's a business record.
MR. COCHRAN: He can lay a foundation.
MR. HARMON: Foundation for what? This is common sense. This is a piece of paper. We have this evidence code here that just--it is--I mean, we can put tea leaves up there or anything up there. I think--
THE COURT: In any event, just procedurally, it's not in evidence.
MR. SCHECK: I can quote two pieces of testimony, this being June 14th--
THE COURT: I am just telling you as a matter of procedure, at any time, a party can move something in evidence. Nobody's moved anything in evidence.
MR. SCHECK: I'm going to move the entire report in evidence, 107.
THE COURT: Let's proceed.
MR. HARMON: No foundation.
(The following proceedings were held in open court:)
MR. SCHECK: Your Honor, I would move 1107 at this time into evidence based on the prior testimony of Mr. Fung and Miss Mazzola.
MR. HARMON: There's no foundation. It's hearsay.
THE COURT: Sustained.
MR. SCHECK: In the course of your work at the SID laboratory, is it part of the regular course of business to fill out crime scene identification--investigation checklists?
MR. YAMAUCHI: For crime scene investigations, yes.
MR. SCHECK: And is it part of the normal course of businesses in those crime scene identification checklists to fill out what are known as evidence collection reports?
MR. YAMAUCHI: It's one of the pages in that packet.
MR. SCHECK: And in some of these evidence collection reports, there is a box for sample numbers and there's a box for item collected and time?
MR. YAMAUCHI: Yes.
MR. SCHECK: And these reports are supposed to be filled out--are these reports filled out in the regular course of business at your laboratory?
MR. YAMAUCHI: Regular course of--yes. Those--that whole set of forms is what's made available to all of us when we go out to crime scenes.
MR. SCHECK: And you fill out these reports at or near the time that you collect the item of evidence?
MR. YAMAUCHI: You mean me personally when I do a crime scene or--
MR. SCHECK: You mean criminalists in your laboratory. It's part of the regular course of your business to fill out these evidence collection reports at or near the time that you collect the item of evidence.
MR. YAMAUCHI: Sometimes I do, sometimes I fill in a collective where I put the time in from the first item collected and the time in on the last item collected.
MR. SCHECK: All right. But sometimes you will actually fill in the time under the box "Time"?
MR. YAMAUCHI: Fill them all out, yeah, occasionally I'll do that.
MR. SCHECK: And when you do that, you fill it out, it's the regular course of your business to fill that out at or near the time that you collect the item?
MR. YAMAUCHI: Sure.
MR. SCHECK: All right. And criminalists in your laboratory have an obligation when they fill in these forms to fill them in accurately and truthfully?
MR. YAMAUCHI: Of course.
MR. SCHECK: All right. Now, have you reviewed in the course of this case the crime scene investigation checklist and the evidence collection report filled out by Dennis Fung and Andrea Mazzola?
MR. YAMAUCHI: Have I reviewed it? No.
MR. SCHECK: Never seen it once?
MR. YAMAUCHI: No.
MR. SCHECK: All right. I show you what has been page 2 of 2 pages of the evidence collection report that is exhibit 1107, Defense 1107. Is this page one of those evidence collection reports page that's filled out in the regular course of your business at SID?
MR. YAMAUCHI: Yes.
MR. SCHECK: And is it the regular course of your business at SID for criminalists to fill that out accurately?
MR. YAMAUCHI: Sure. Yes.
MR. SCHECK: And are they supposed to fill it out sometime at or near the time that they locate the item collected and put in the time?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. Your Honor, I would offer these two pages from the evidence collection sheet of 1107.
MR. HARMON: It's somebody else's report, your Honor.
THE COURT: Sustained.
MR. HARMON: Thank you.
MR. SCHECK: Do you rely on the evidence collection reports of other criminalists in the course of your work on a case?
MR. YAMAUCHI: Do I rely upon it?
MR. SCHECK: Yes.
MR. HARMON: Objection. It's vague, it's irrelevant, it's beyond the scope.
THE COURT: Overruled. Overruled.
MR. YAMAUCHI: Well, I might utilize them in reference.
MR. SCHECK: Would you rely on the information in this report to be accurate even though you didn't create the report yourself?
MR. HARMON: Objection. That's irrelevant.
THE COURT: Overruled.
MR. YAMAUCHI: I would assume it's correct.
MR. SCHECK: And, your Honor, I would offer it now.
THE COURT: Nope. Sustained.
MR. SCHECK: Would you rely--as part of your formulating your expert opinion about how crime scene samples are handled in this case, would you rely upon the evidence collection reports filled out by Dennis Fung and Andrea Mazzola?
MR. HARMON: Objection. Calls for speculation. It's beyond the scope of his direct examination.
THE COURT: Overruled.
MR. HARMON: It's still hearsay.
THE COURT: Overruled.
MR. YAMAUCHI: I think I would rather have that--have a discussion with them and then have them explain and tell me that this is reference material for certain--certain areas. So in other words, what I'm saying is, I would rather have it in conjunction with physically speaking with them because they're their notes and not my own. They might have their own personal style of writing and taking notes.
MR. SCHECK: In terms of the time that hair and fibers might have been removed from the glove, is the evidence collection report an item that you would generally rely upon in formulating your expert opinion about crime scene samples in a case?
MR. HARMON: Objection. That's irrelevant.
THE COURT: Overruled.
MR. YAMAUCHI: Once again, I would--I would like to talk to them first to clarify issues and make sure I understand the way that they fill out and address their notes. For one thing, there's times on here, but it doesn't say what date they were collected on. I--is there more of this or--
THE COURT: Let me see counsel without the court reporter, please.
(A conference was held at the bench, not reported.)
(The following proceedings were held in open court:)
THE COURT: Thank you, counsel. Proceed.
MR. SCHECK: Thank you, your Honor.
MR. SCHECK: Mr. Yamauchi, do you recognize these two pages which have been marked Defendant's 1107?
MR. YAMAUCHI: They look like part of the crime scene note packet.
MR. SCHECK: The crime scene note packet that is filled out in the ordinary course of business at the SID laboratory?
MR. YAMAUCHI: Yes.
MR. SCHECK: And looking at the rest of the materials, 1107 and these last two pages, do you recognize this to be the evidence collected--collection report filled out by Dennis Fung and Andrea Mazzola in connection with this case?
MR. HARMON: Objection. There's no foundation, it calls for hearsay.
THE COURT: Overruled.
MR. YAMAUCHI: I don't see any initials or anything like that on there and I'm not--I can't say that I--I could recognize their style of writing or anything. But judging by the--
THE COURT: Go ahead. Finish your answer.
MR. YAMAUCHI: --judging by the numbers and the other stuff, it--it seems like it's related to this case.
MR. SCHECK: Well, you recognize these to be the item numbers in this case accord with the item numbers that--of the various different specimens that you've been dealing with in this case and you were dealing with on June 14th?
MR. HARMON: Objection. Calls for speculation, no foundation, it's hearsay.
THE COURT: All right. Mr. Scheck, let's--we're not going to make any progress in this area. The jury's already heard the testimony of Mr. Fung. Let's proceed.
MR. SCHECK: Do you notice on the first page of this evidence--this crime scene investigation checklist, do you see the names Dennis Fung and Andrea Mazzola?
MR. HARMON: Objection. That's hearsay, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. SCHECK: Having seen that, looking at all these documents, do you now recognize 1107 to be the crime scene investigation checklist and the evidence collection report filled out by Dennis Fung and Andrea Mazzola in connection with this case?
MR. HARMON: Objection. Calls for speculation, no foundation, it's hearsay, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: I guess I'd have to take your word for it.
THE COURT: All right. Let's move on.
MR. SCHECK: Mr. Yamauchi, let me ask you to assume that Mr. Fung removed hair and fibers from the glove at 9:00 A.M. on the morning of June 14th. Do you have that in mind?
MR. HARMON: Objection. Improper hypothetical. It's inconsistent with the testimony.
THE COURT: Overruled.
MR. YAMAUCHI: Okay.
MR. SCHECK: Now, if you assume that to be true, would you not agree in reconstructing the events of June 14th, that you cut samples from the glove sometime between 9:00 A.M. and Mr. Fung removed the hair and 10:00 A.M. when you began cutting the swatches from the Bundy samples?
MR. HARMON: Objection. That's argumentative. It's an improper hypothetical.
THE COURT: Sustained. Rephrase the question.
MR. HARMON: Thank you.
MR. SCHECK: Assuming that Mr. Fung removed the hair from the glove at 9:00 A.M., looking--based on that assumption and looking at all your notes and canvassing your recollection of the morning of June 14th, do you believe it likely that you cut samples from the glove between 9:00 A.M. and 10:00 A.M. on the morning of June 14th?
MR. YAMAUCHI: That's possible although my notes don't reflect any times as to when I specifically did that.
MR. SCHECK: The understand--your notes don't reflect times?
MR. YAMAUCHI: But--not on--not on that particular item, I didn't write the time down.
MR. SCHECK: But in reviewing the glove entries with you this morning, did you not agree that in terms of the listing of the items and the order in which you put in your notes, that it is likely that you cut samples from the glove before you cut the Bundy swatches?
MR. HARMON: Objection. That's argumentative.
THE COURT: Overruled. And, Mr. Scheck, you're going to have to remove your items from the Prosecution's side of the table.
MR. SCHECK: I'm sorry?
THE COURT: You're going to have to remove your belongings from the Prosecution side of the table unless you want to leave them there.
MR. SCHECK: You're right. I'd better move them.
MR. SCHECK: Do you have my last question in mind?
MR. YAMAUCHI: I'm sorry. Could you ask it one more time, please?
MR. SCHECK: In reviewing your notes this morning, did you not reach the conclusion that it was likely that you cut samples from the glove before you did the Bundy samples?
MR. YAMAUCHI: Yes, that's possible. But once again, I don't have it written down and I don't have independent recollection of that, using your terminology.
MR. SCHECK: And assuming that Mr. Fung removed a hair from the glove at 9:00 A.M.--
MR. YAMAUCHI: Yes.
MR. SCHECK: --and combining that with your notes and the recollections you do have of the morning of June 14th, do you not consider it likely that you cut samples from the glove between 9:00 A.M. and 10:00 A.M. on the morning of June 14th?
MR. YAMAUCHI: Yes. That makes sense.
MR. SCHECK: Okay. Your Honor, I would like to have a diagram I would like to--what time? 2:30?
THE COURT: 2:30.
MR. SCHECK: --I would like to mark Defendant's next in order. I believe this is Defendant's--
THE COURT: 1186.
MR. SCHECK: 1186.
THE COURT: This is a drawing of the glove.
(Deft's 1186 for id = drawing of glove)
MR. SCHECK: Now, have you had an opportunity to examine this board, Mr. Yamauchi?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, you examined this with Mr. Harmon the other day, Friday I believe?
MR. YAMAUCHI: Yes. If that's the same board, yes, that's the one then.
MR. SCHECK: And are you satisfied that the blown-up diagrams of the backside, the front side of the glove and the wrist area where you put your initials are accurate reproductions of what you drew on your serology item description notes?
MR. YAMAUCHI: Yes, it seems to be.
MR. SCHECK: And the--I guess the phrase we use here is "The pull out lines" or the "Cut out lines"--that are--accurately reflect your own notes about what procedures and manipulations you made of the glove on the morning of June 14th?
MR. YAMAUCHI: Yes. I didn't notice any inconsistencies.
MR. SCHECK: All right. Now, if we assume that Mr. Fung removed a hair from the glove on the morning of June 14th, you have no idea from your knowledge of this case where he removed it from, do you?
MR. YAMAUCHI: Where Mr. Fung--no, I don't know where he removed anything.
MR. SCHECK: And you have no idea whether or not he was wearing the same pair of gloves that he used to handle the crime scene specimens when he removed a hair from this glove on the morning of June 14th?
MR. YAMAUCHI: Of course I don't know what he did.
MR. SCHECK: Now, in your training, have you been taught that it is fundamental criminalist procedure to take a photograph of an item of evidence such as this glove before anyone in the crime lab alters it?
MR. HARMON: Objection. Argumentative.
THE COURT: Overruled.
MR. YAMAUCHI: I would say that's a good idea and something that I would practice on most occasions. But to give it that much emphasis, not necessarily.
MR. SCHECK: Are you familiar--you've been working at SID for how many years?
MR. YAMAUCHI: Five years.
MR. SCHECK: Five years. Have you ever come in contact with a document known as a "Crime scene field--crime scene field unit protocol and procedures manual"?
MR. HARMON: Objection. Beyond the scope of direct.
THE COURT: Overruled.
MR. YAMAUCHI: First time I ever heard about that was during this case.
MR. SCHECK: Uh-huh. Well, since this case began, have you had an opportunity to look through the crime scene and field--crime scene field unit protocol and procedures manual?
MR. HARMON: Objection. It's irrelevant.
THE COURT: Overruled.
MR. HARMON: Beyond the scope of direct.
THE COURT: Overruled.
MR. YAMAUCHI: No, I've never looked at that.
MR. SCHECK: Never looked at it. In the course--well, you have served on the crime scene field unit for SID; have you not?
MR. YAMAUCHI: Yes, I've had field duties.
MR. SCHECK: You've gone out to crime scene and collected evidence?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you received training on how to do that?
MR. YAMAUCHI: Yes.
MR. SCHECK: And some of that training I take it is part of the SID oral tradition?
MR. YAMAUCHI: Could you be more specific about that, what you mean by that?
MR. SCHECK: You were--instead of getting any written instruction sheets on what to do, you were given oral instruction about what to do?
MR. YAMAUCHI: I've been to a crime scene investigation class from the California Criminalistics Institute as well as have been at numerous seminars and training sessions at SID.
MR. SCHECK: Did you go to what they call an SID mini academy?
MR. YAMAUCHI: I don't know if that's what it's called, but we had seminars on Thursdays.
MR. SCHECK: Okay. In your Thursday seminars, did anybody ever tell you that before altering the condition of any evidence, it should be photographed?
MR. HARMON: Objection. Beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: Well, the items of evidence are photographed as they lay in the--in the field by the photographer and the criminalists that are at the scene. And when they come back, will quite often will remove bloodstains and things like that from them. It's not always critical to photo document them at that point. One reason that I would is if I was going to alter it in some way like make a cutting and that's in this case what I did.
MR. SCHECK: Would you consider removing a hair from a glove altering it?
MR. YAMAUCHI: It--it would depend on the situation.
MR. SCHECK: Let's try this one. Would you consider removing a hair from the Rockingham glove altering the evidence, altering item no. 9?
MR. HARMON: Objection. Argumentative, calls for speculation, beyond the scope.
THE COURT: Sustained.
MR. SCHECK: In analyzing--you conduct--withdrawn. You conducted an investigation of the glove yourself before you cut it?
MR. YAMAUCHI: Of course I looked it over.
MR. SCHECK: And you were trying to figure out in the course of your examination of the glove what the best areas were to either swab or cut for purposes of DNA testing?
MR. YAMAUCHI: Yes. I was looking for areas to sample.
MR. SCHECK: All right. And would it have been of some importance in terms of figuring out which area to sample to know where a hair had been found on that glove?
MR. HARMON: Objection. Speculation, no foundation.
THE COURT: Overruled.
MR. YAMAUCHI: As far as my analysis is concerned, removing blood, I--that's--that's not an issue that affects me. It would be something that would be taken up with trace or the people that analyze hairs and fibers if that's what you're getting at. I'm not sure.
MR. SCHECK: Did you see a piece of tissue imbedded anywhere in the notch area of the Rockingham glove on the morning of June 14th?
MR. YAMAUCHI: Well, to my recollection, I don't recall anything like that and it's not on my notes.
MR. SCHECK: So to the best of your knowledge, you can't tell us whether there was a piece of tissue in the notch area as well as a hair that was removed by Mr. Fung?
MR. YAMAUCHI: There may very well have been. I try not to manipulate that item, overly manipulate it and I concentrated in on what was important to me, which was the sampling process for the DNA PCR.
MR. SCHECK: In terms of trying to determine whether or not there could have been cross-contamination of this evidence item, would it be important for you to know when Mr. Fung touched that glove, where he touched it and what he was wearing when he touched it?
MR. HARMON: Objection. It's argumentative, calls for speculation, no foundation.
THE COURT: Sustained.
MR. SCHECK: Do you have any concerns that in the course of manipulating this glove, employees of SID might have transferred small amounts of blood to the glove?
MR. HARMON: Misstates the testimony, no foundation.
THE COURT: Sustained.
MR. SCHECK: I'm asking--do you have any concerns that that could occur.
MR. HARMON: Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: In the course of examining and cutting evidence for purposes of DNA testing, is it important that SID criminalists engage in conduct that prevents cross-contamination?
MR. YAMAUCHI: Of course that's important.
MR. SCHECK: All right. Based on your knowledge of what can cause cross-contamination, would you consider it an unsound practice for Mr. Fung to have been handling the blood swatches from Rockingham and then without changing gloves, remove a hair from the wrist area of this glove?
MR. HARMON: Objection. Misstates the testimony, calls for speculation, no foundation.
THE COURT: Sustained.
MR. SCHECK: Would it be unsound practice for Mr. Fung to have manipulated the blood swatches and then without changing gloves, remove the hair from some location of the glove?
MR. HARMON: Objection. No foundation, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: You don't know what Mr. Fung did in removing the hair from this glove, do you?
MR. YAMAUCHI: No, I don't.
MR. SCHECK: Now, in terms of your own manipulation of the glove, you conducted a number of different procedures before you even did a cutting; is that correct?
MR. YAMAUCHI: If you're referring to the phenolphthalein test?
MR. SCHECK: Is that one thing you did?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, before you did the phenolphthalein test, did you do anything else in examining the glove?
MR. YAMAUCHI: Well, anything else like what? Could you be specific?
MR. SCHECK: Did you touch it with your hands, the gloved hands?
MR. YAMAUCHI: Did I touch it with gloved hands?
MR. SCHECK: Yes.
MR. YAMAUCHI: Yes. I would have to touch it with gloved hands.
MR. SCHECK: Well, do you know where the--did you examine the gloves in the evidence processing room? I think you've indicated you did.
MR. YAMAUCHI: The glove, not gloves.
MR. SCHECK: This glove, the Rockingham glove?
MR. YAMAUCHI: This glove right here. Yes.
MR. SCHECK: And assuming that you did it after you created the fitzco card, do you know where in relation to the fitzco card you conducted these manipulations of the glove?
MR. YAMAUCHI: I remember working on that glove on the--not on the table, but on the bench area next to the paper, the clean paper.
MR. SCHECK: Not on the table?
MR. YAMAUCHI: The table where the evidence was on.
MR. SCHECK: So there's one--the evidence is on the table at the back of the room where the hood is, right?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. Incidentally, weren't there two other cases going on in the evidence processing room that day?
MR. YAMAUCHI: I don't know.
MR. SCHECK: You don't recall seeing any other evidence items out from any other case?
MR. YAMAUCHI: I--I saw a lot of evidence. I don't know if it was all from the Simpson case or it could have been from some other cases.
MR. SCHECK: So arrayed along the tables in the evidence processing room was evidence from the Simpson case and evidence from other cases?
MR. HARMON: Objection. Misstates his testimony.
THE COURT: Sustained.
MR. SCHECK: Were there--was there evidence from other cases out on the evidence table out in the evidence processing room as well as evidence in this case?
MR. YAMAUCHI: Well, there might have been. I don't know.
MR. SCHECK: You can't recall as you sit here today?
MR. YAMAUCHI: It wasn't something I asked.
MR. SCHECK: Well, I'm only asking about what you saw.
MR. YAMAUCHI: Okay. What I saw is a bunch of packaged evidence as if it had been collected at a crime scene and it was back on that table.
MR. SCHECK: So you do recall seeing other packages of evidence as well as the evidence in this case?
MR. YAMAUCHI: Well, I don't know--
MR. HARMON: Objection. That misstates the evidence.
THE COURT: Sustained.
MR. SCHECK: Other packages.
MR. YAMAUCHI: Well, I don't know if there were other. At that point, I didn't know if it was related or--or--if you're saying there was another case there, I wouldn't doubt it.
MR. SCHECK: Do you as you sit here today have a specific independent recollection as to the--how far away this glove was when you manipulated it from the fitzco card and Mr. Simpson's reference tube?
MR. YAMAUCHI: Well, that was--about 10 to 15 feet. It would be about the same as the rest of the evidence.
MR. SCHECK: Now, did you put your initials in the wrist area of the glove first?
MR. YAMAUCHI: No. I initialed it last.
MR. SCHECK: How do you know that?
MR. YAMAUCHI: Because that's my practice.
MR. SCHECK: Okay. You don't independently recall if it's just the way you do things.
MR. YAMAUCHI: Well, I remember doing it last.
MR. SCHECK: And when you initialed the glove--that glove, you had to grip it in the wrist area in order to write your name, didn't you?
MR. YAMAUCHI: I don't recall, but possibly.
MR. SCHECK: And you proceeded to do a series of phenolphthalein tests on this glove?
MR. YAMAUCHI: You mean after I initialed it?
MR. SCHECK: I thought you said you initialed it last.
MR. YAMAUCHI: Right. Well, you said "You proceeded." And so I just wanted to clarify that.
MR. SCHECK: You--okay. Do you know where you started? Would it be in area A?
MR. YAMAUCHI: It's most likely that I followed that A, B, C, D pattern. Makes sense.
MR. SCHECK: All right. So you did a phenolphthalein test by taking a q-tip and swabbing area a; is that right?
MR. YAMAUCHI: I took a clean q-tip, moistened it with sterile water and then swabbed that area.
MR. SCHECK: All right. And then you did a cutting?
MR. YAMAUCHI: That sounds reasonable.
MR. SCHECK: Well, I don't know. I wasn't there. Did you do all the phenolphthalein tests first and then do cuttings or did you do a phenol and a cutting? What did you do? Do you know?
MR. YAMAUCHI: I don't remember.
MR. SCHECK: Okay. Okay.
MR. YAMAUCHI: Specifically I don't remember.
MR. SCHECK: You don't remember. And when you did your cuttings, did you use that scalpel again with just one hand?
MR. YAMAUCHI: When I do cuttings, I use a scalpel and yes, I can manipulate it with one hand.
MR. SCHECK: So you--do you actually have an independent recollection that you cut the glove at every point indicated as sample cutting with just one hand without gripping that glove with the other hand?
MR. YAMAUCHI: Might have gripped it with the other hand.
MR. SCHECK: All right. And you did--looking at the palm side--two phenol samplings and a cutting on the inside area labeled C in the wrist area of the glove.
MR. YAMAUCHI: Yes.
MR. SCHECK: And you did phenol tests, two of them, on the backside of the glove in the wrist area?
MR. YAMAUCHI: Yes.
MR. SCHECK: And at the end of this process, you initialed the glove on the inside in the wrist area?
MR. YAMAUCHI: Yes.
MR. SCHECK: Your Honor, I think that--
THE COURT: Yes.
MR. SCHECK: Good point.
THE COURT: All right. Ladies and gentlemen, we're going to take a brief recess for 15. Please remember all of my admonitions to you. And we'll reconvene in 15 minutes. Mr. Yamauchi, you can step down.
(Recess.)
(The following proceedings were held in open court, out of the presence of the jury:)
THE COURT: All right. Back on the record. Are we ready to proceed?
MR. SCHECK: Yes, your Honor.
THE COURT: All right. Let's have the jurors, please.
(The following proceedings were held in open court, in the presence of the jury:)
THE COURT: Thank you, ladies and gentlemen. Please be seated. Mr. Yamauchi, would you resume the witness stand, please. All right. Let the record reflect we've been rejoined by all the members of our jury panel. And, Mr. Scheck, you may conclude your cross-examination.
MR. SCHECK: Thank you, your Honor.
MR. SCHECK: Mr. Yamauchi, when you were taking samples from the glove, were you in a hurry?
MR. YAMAUCHI: No.
MR. SCHECK: When you were cutting the Bundy swatches, were you in a hurry?
MR. YAMAUCHI: No.
MR. SCHECK: Now, you mentioned on direct examination that you have one of these little badges that you put up next to the door, and that admits you into the evidence processing room?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you're familiar with computer printouts entitled "Card transaction reports" that reflect when somebody goes into the evidence processing room?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, I would like to show you what's already been marked as People's 226, a serology transaction report and I'd like to also show you Defendant's next in order.
MR. SCHECK: What would that be?
THE COURT: 1187.
MR. SCHECK: 1187.
(Deft's 1187 for id = report)
MR. SCHECK: And I'd like you to compare 1187 to 226 and tell us if 1187 is a fair and accurate summary of all the different entries on the transaction report for the--for June 14th into the evidence processing room that bear your name? And just to help you out, it's page 1--
MR. HARMON: Your Honor, objection. 226 is hearsay at this point. It's not in evidence.
THE COURT: Overruled.
MR. YAMAUCHI: What's the door number on the evidence processing room?
MR. SCHECK: 18.
MR. YAMAUCHI: Umm, can we confirm that that's the evidence processing room?
MR. SCHECK: Well, the--226 was introduced by the People as the transaction report of that room.
MR. HARMON: Your Honor, I have an objection to that.
THE COURT: That's testifying.
MR. HARMON: That's hearsay, your Honor.
THE COURT: That's testifying, counsel.
MR. HARMON: And I object that that document is hearsay and the witness is unfamiliar with it. No foundation.
THE COURT: Overruled.
MR. SCHECK: Ask you to assume it's door no. 18 and that 226 is a--the transaction report, door no. 18 is the evidence processing room.
MR. YAMAUCHI: Okay. Then if I assume that, then I can go on.
MR. SCHECK: Yes. Thank you.
THE COURT: Do you need a straight edge, Mr. Yamauchi?
MR. YAMAUCHI: Thank you, but I'm okay.
THE COURT: All right.
(Brief pause.)
MR. SCHECK: Goes on to page 4.
MR. YAMAUCHI: This one? Okay.
MR. SCHECK: Okay.
(Brief pause.)
THE COURT: Mr. Scheck.
MR. YAMAUCHI: Okay.
MR. SCHECK: Is that accurate? Is 1187 accurate?
MR. YAMAUCHI: Under the assumption that this is from the evidence processing room for that particular date, yes, it is.
MR. HARMON: Objection, your Honor. There's no foundation. It's hearsay.
THE COURT: Overruled.
MR. SCHECK: Your Honor, may I display 1187?
THE COURT: Yes.
(Brief pause.)
MR. SCHECK: Okay. Now, the transaction record would indicate--these are all entries, correct? That's how the system works?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. So it shows you entering the evidence processing room at 8:17 and then presumably sometime between 8:17 and 8:31, you left because you entered again at 8:31, correct?
MR. YAMAUCHI: That's a good assumption.
MR. SCHECK: Okay. Now, let's look at how many times you left between 9:00 and 10:00 o'clock, okay? At 9--we see you reentering at 9:15, correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: And we see you reentering at 9:27?
MR. YAMAUCHI: Yes.
MR. SCHECK: So that would mean that sometime between 9:15 and 9:27, you left the evidence processing room and then reentered?
MR. YAMAUCHI: That's a good assumption.
MR. SCHECK: And then between 9:27 and 9:49, you left and then reentered at 9:49?
MR. YAMAUCHI: Yes. That's reasonable.
MR. SCHECK: And at 9:49--between 9:49 and 9:59, you left and reentered again at 9:59?
MR. YAMAUCHI: Right.
MR. SCHECK: And all those exits and entries between 9:15 and 9:59 occurred during the period of time that you were manipulating and cutting samples from the glove?
MR. HARMON: Objection. That misstates the testimony.
THE COURT: Sustained.
MR. SCHECK: All right. If we assume that you started manipulating and sampling the glove sometime after 9:00 A.M., would it be fair to say that you entered and exited the evidence processing room at the times indicated on 1187 during the period that you were manipulating and cutting the glove?
MR. HARMON: Objection. Calls for speculation, there's no foundation.
THE COURT: Sustained.
MR. SCHECK: All right. Do you recall entering and leaving the evidence processing room while you were manipulating and cutting the glove?
MR. YAMAUCHI: Well, to begin with, we just went over that section of my notes, and, yeah, I'd say it was reasonable to assume that sometime between I guess--where was it--9:00 and 10:00 or so, that that's when that was analyzed. But I don't remember specific details as to what I was doing and what time I took samples and at certain points, I would have had to go get the photographer too and have him come by to photograph that item. So I don't know.
MR. SCHECK: The photographer in question is who, if you recall?
MR. YAMAUCHI: It's either John Taggard or Mike Wilson.
MR. SCHECK: Well, looking at the entries on 226, tell us entries you see on the morning of June 14th for Taggard and Wilson and the times.
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Overruled.
MR. YAMAUCHI: John Taggard, 8:24.
MR. SCHECK: Okay. Hold on.
MR. YAMAUCHI: Uh-huh.
MR. SCHECK: Given your reconstruction of the events of the morning of June 14th, do you believe that Taggard entered at 8:24 and took a picture of the glove before you manipulated and cut it?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: As best you can recall, given your notes and records and recollection, do you believe--did Taggard come into the evidence processing room at 8:27 and take a picture of the glove?
MR. YAMAUCHI: Like I said before, I don't know if it was John Taggard or Mike Wilson.
MR. SCHECK: All right. Would you look at the transaction report and see if there's--when the next entry for Taggard or Wilson is?
MR. YAMAUCHI: For Wilson, it's 8:47.
MR. SCHECK: All right. Do you recall Wilson entering the evidence processing room at 8:47 and taking a picture of the glove?
MR. YAMAUCHI: I don't recall which one of them did it. I asked John Taggard to take the photograph and I'm not sure if he did or if Mike Wilson did.
MR. SCHECK: So--but you are certain, are you not, that the photograph taken of the glove was after you had manipulated and cut it?
MR. YAMAUCHI: No. I had it photoed beforehand, before I did the cutting.
MR. SCHECK: Didn't you testify on direct examination that the photograph of the glove was done after you initialed it, manipulated it and cut it?
MR. YAMAUCHI: No, I don't believe so.
MR. HARMON: Objection. Misstates the testimony.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Do you recall what you said on direct testimony with respect to when the glove was photographed; before or after you manipulated it and cut it?
THE COURT: On June 14th.
MR. SCHECK: I'm sorry?
THE COURT: On June 14th.
MR. SCHECK: On June 14th.
MR. YAMAUCHI: I believe I said before because the whole idea in the--behind photographing it before is because I was going to cut it. So I wanted to have a photo documentation of it as how it looked before I did the cuttings on it.
MR. SCHECK: Have you ever seen a photograph of the Rockingham glove in a condition prior to the cuts you made on it?
MR. HARMON: Objection. Assumes facts not in evidence.
THE COURT: Overruled.
MR. YAMAUCHI: Seen quite a few photographs of that. I--I don't know if those were the ones or the set that I had requested.
MR. SCHECK: You requested a set of photographs from the Prosecutors to review before you testified?
MR. YAMAUCHI: No, I didn't. I--for that particular issue, I would have to go back and check the records to make sure that this set that I've seen in the past is the set that happened on that date and time.
MR. SCHECK: Where would you go to check?
MR. YAMAUCHI: Hmm, I'd probably have to talk to Mr. Matheson.
MR. SCHECK: All right. And after talking with Mr. Matheson, do you believe you could determine whether or not there is in existence a photograph of the Rockingham glove taken at SID that reflects its condition before you manipulated and cut it?
MR. YAMAUCHI: There should be.
MR. SCHECK: I would ask you if you could do that for us.
MR. YAMAUCHI: Right now?
MR. SCHECK: Well, why not? Sometime after court today.
MR. YAMAUCHI: Okay.
MR. SCHECK: Now, when you were--I'm going to bring up page 5 of your notes--I'm sorry--page 3 of your notes with respect to your cutting of the Bundy swatches. Now, you recall on direct examination that you took out some envelopes and paper and you demonstrated for the jury how you--the process that you went through in cutting the swatch, putting it in the bindle, putting it into the test--putting part of it in the test tube and packing it. You went from one to the other. Do you recall that?
MR. YAMAUCHI: Into the microcentrifuge tubes?
MR. SCHECK: Yes.
MR. YAMAUCHI: Yes.
MR. SCHECK: Do you recall standing in front of the jury here and taking out those envelopes and demonstrating?
MR. YAMAUCHI: Yes, I recall that.
MR. SCHECK: Okay. Now, when you did that demonstration, didn't you leave out one aspect of your activities that you engaged in when you cut the swatches?
MR. YAMAUCHI: Well, what aspect is that?
MR. SCHECK: Well, call your attention to your notes, page 3. When you were going through the process of unpacking the bindles, cutting the swatches with the scalpel in one hand, with that same hand putting it into the microcentrifuge tube and before you repackaged them and went to another bindle, didn't you make a drawing?
MR. YAMAUCHI: Yes.
MR. SCHECK: So that was part of your activities as you went through the Bundy samples?
MR. YAMAUCHI: Yes.
MR. SCHECK: You made the drawing that appears here as page 3 of your notes?
MR. YAMAUCHI: Yes.
MR. SCHECK: And when you made that drawing, you tried to be as careful as possible in outlining the shapes of each swatch?
MR. YAMAUCHI: No. I just made an approximate rendition of what I saw.
MR. SCHECK: Well, on some of these, for example, take 49, didn't you make little renditions to try to indicate folds?
MR. YAMAUCHI: Yes.
MR. SCHECK: In particular, I call your attention to the--I think you can see it as item 49 if you travel along the top right-hand--the top of the line, all right, you see six little renditions of swatches, correct?
MR. YAMAUCHI: Correct.
MR. SCHECK: And the fourth one over from the left is drawn in such a way to indicate a fold.
MR. YAMAUCHI: Yes.
MR. SCHECK: And many of the other drawings here, you tried your best to indicate irregularities in the sizes and shapes of the swatches.
MR. YAMAUCHI: Yes. I try to do that approximately.
MR. SCHECK: And you didn't take a picture of the swatches?
MR. YAMAUCHI: No.
MR. SCHECK: That's not a practice in your laboratory?
MR. YAMAUCHI: No, it's not. It's never been an issue.
MR. SCHECK: Okay. Now, this process of cutting the swatches and drawing them you did carefully?
MR. YAMAUCHI: Well, I took some care into it. But keep in mind, these are approximations. I don't want to say that they're exact duplicates of the exact size of them.
MR. SCHECK: No. I'm not talking about the drawings.
MR. YAMAUCHI: Just to get a general idea.
MR. SCHECK: I'm not talking now about the drawings. I'm talking about the process of opening the bindles, cutting the swatches with one hand, putting the swatches into the microfuge tube, making your picture, repackaging the swatches. You did all that carefully?
MR. YAMAUCHI: Of course.
MR. SCHECK: You wanted to--you didn't want to rush through that, did you?
MR. YAMAUCHI: No.
MR. SCHECK: Because you weren't changing gloves?
MR. YAMAUCHI: Well, if something got on my gloves, I would change it, or if I had inadvertently touched a swatch or something, then I would change it. But I do my manipulations with the scalpel blade. And so there isn't necessarily a need to change my gloves.
MR. SCHECK: I thought it was your firm testimony--well, I'll rephrase it. I thought it was your testimony that you were sure that you had not touched a swatch with your glove when you went through this manipulation process and cutting process of the Bundy swatches.
MR. YAMAUCHI: You're right. I don't recall touching any swatches.
MR. SCHECK: Okay. You're sure of that?
MR. YAMAUCHI: Yes.
MR. SCHECK: Didn't change your gloves?
MR. YAMAUCHI: I wouldn't see any reason why I would have to. No.
MR. SCHECK: And you actually told us I think this morning that with respect to sample 49, one of these--two of these swatches were actually stuck together and you had to pull them apart?
MR. HARMON: Objection. Asked and answered.
THE COURT: Sustained.
MR. SCHECK: Now, you did these cuttings--well, let's see. 117, there was a total of four swatches?
MR. YAMAUCHI: No. There's two swatches and one control.
MR. SCHECK: Well, two swatches and one control. So that would be three?
MR. YAMAUCHI: In total, yes.
MR. SCHECK: And for sample 49, there was a total of six specimens and one control for a total of seven?
MR. YAMAUCHI: Yes.
MR. SCHECK: And for sample 50, there were four specimens and one control for a total of five?
MR. YAMAUCHI: Yes.
MR. SCHECK: And for sample 48, there were two specimens and one control for a total of three?
MR. YAMAUCHI: Yes.
MR. SCHECK: And for sample 47, there were seven specimens and one control for a total of eight?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you went through this entire process of cutting the swatches with the one hand, putting it into the test tubes, drawing your picture, opening the bindles and closing the bindles, you did all that in one hour?
MR. YAMAUCHI: Yes.
MR. SCHECK: And that would come down to, on an average, about 12 minutes per item?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you're certain that you didn't touch any of the swatches with your glove?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you weren't in a rush.
MR. YAMAUCHI: I wasn't in a rush.
MR. SCHECK: Now, you testified on direct examination to--well, let me go back for just one second. And during this process of doing the swatches, you went in and out of the evidence processing room between 10:00 and 11:00?
MR. YAMAUCHI: Yes.
MR. SCHECK: Yes. That the chart indicates an entry at 10:05, 10:54 and 10:59?
MR. YAMAUCHI: Okay. Yes.
MR. SCHECK: Now, when you received these coin envelopes from Dennis Fung, each of them was closed. I'm talking now about the Bundy samples.
MR. YAMAUCHI: They weren't sealed.
MR. SCHECK: But they were closed?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you opened them up?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you looked at the bindles?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you did not see one initial of Andrea Mazzola on any one of those bindles from the Bundy samples, did you?
MR. YAMAUCHI: Well, if it was there, I didn't note it. I noted the number down there.
MR. SCHECK: And there was no count on the coin envelopes or the bindles indicating the number of swatches that had been originally collected?
MR. YAMAUCHI: No. That wasn't listed on there.
MR. SCHECK: And the original packaging, that is the plastic bags that the swatches were initially put in, those were not preserved or present?
MR. YAMAUCHI: No, I don't recall seeing plastic bags.
MR. SCHECK: All right. And we cannot test now the plastic bags, the blood on the plastic bags to compare that--any DNA typings from that blood with the typings from the swatches, can we?
MR. YAMAUCHI: Well, for one thing, if I didn't see the plastic bags, I really can't even testify as to their existence.
MR. SCHECK: Okay. Have you ever used plastic bags to collect blood swatches?
MR. HARMON: Objection. Beyond the scope.
THE COURT: Sustained. Mr. Scheck, why don't you turn the podium towards the witness, please.
MR. SCHECK: I'm sorry.
MR. SCHECK: In your experience, in the evidence processing room, have you ever seen the plastic bags that the wet swatches are brought in?
MR. YAMAUCHI: Yes. I've seen--I've seen that in my experience and I've used that technique myself.
MR. SCHECK: And invariably, do you not see bloodstains on those plastic bags?
MR. YAMAUCHI: There winds up with them--you know, residual amount of blood left on the plastic.
MR. SCHECK: Now, in your training and readings as a criminalist, have you not been taught that all original packaging of evidence items ought to be preserved as the chain of custody of an item proceeds?
MR. HARMON: Objection. Argumentative, calls for speculation.
THE COURT: Overruled.
MR. YAMAUCHI: Well, that--that's up to an interpretation too because if you think about it, what's important is the swatch itself. That's what's going to be analyzed. This background piece of plastic that it's being placed on is just something that's supporting it. It's--it's not intended to be analyzed. What's intended to be analyzed are the swatches, and that's what initial--or not initially, but eventually gets dried and booked into evidence.
MR. SCHECK: All right. "Chain of custody" refers to the practices of criminalists to ensure that the items collected are actually the items tested and presented in court?
MR. YAMAUCHI: That sounds reasonable.
MR. SCHECK: And in the course of your training with respect to chain of custody, have you not heard that it is a standard practice to preserve all original packaging materials for an item?
MR. YAMAUCHI: Yes. And I think that's specifically designed to look at items of evidence such as a glove or something that's adamant, not--not something that's a blood swatch where you're collecting a stain on the wall or something like that. See, the reason why is, if--if say you have a glove, things can fall off of that, and you would want to preserve those pieces of trace evidence for further analysis. And that's one place where the trace people will look, would be inside the packaging housing that. But when we're talking about a blood swatch, what we're interested in are the types on that particular stain. If you consider that plastic, that's--all that's doing is acting as support to dry the stain and/or transport it. It's not changing any of the types that are on that particular stain. What's important, Mr. Scheck, is the stain itself and the information that can be gained by that.
MR. SCHECK: Well, following through with what you just said, with respect to the original packaging containing traces of the item collected, is it not true that these plastic packages would contain blood from the original swatches?
MR. YAMAUCHI: Yes. But you've got to--
MR. SCHECK: Is that true; yes or no?
MR. HARMON: Well, your Honor, I'm going to object. He's explaining.
THE COURT: Let him finish answering the question.
MR. SCHECK: All right. Please finish.
MR. YAMAUCHI: You've got to understand--I mean, common sense will tell you this too--if you've got a bloodstain and you put it on the plastic, it's not going to be different on the plastic than it would be on the swatch itself. If you have--if you have a glove and you put it in a package and some of the, you know, maybe a hair or fiber or something falls off, then that's going to have evidentiary value. And so of course you're going to want to change or save that packaging because it's got stuff in it that's important. But the residual amount from a piece of plastic that's supporting a blood swatch is insignificant. What's important is what's on the swatch.
MR. SCHECK: Let us assume, Mr. Yamauchi, that the swatches originally collected in the plastic bag are not the swatches that were put in the bindles. Are you with me?
MR. HARMON: Objection.
MR. YAMAUCHI: You can make all kinds of assumptions.
MR. HARMON: There's no basis for that hypothetical, your Honor.
THE COURT: Sustained.
MR. SCHECK: Well, could you not scrape blood off the original plastic bags that contain these swatches and do a DNA test to find out what types would come from that blood on the plastic bag?
MR. YAMAUCHI: Yes. That's possible.
MR. SCHECK: All right. And then one could compare the blood on the original plastic packaging to the blood types one got from the swatches?
MR. YAMAUCHI: That's possible. But why wouldn't you want to just go directly to the swatches themselves?
MR. SCHECK: And if the typings from the plastic bag, blood from the plastic bag were different than the typings from the actual swatches, wouldn't that raise a concern with respect to tampering with evidence?
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Sustained.
MR. SCHECK: Did it raise any concern in your mind that there was no count on either the bindles, the coin envelopes or any document you could find as to how many swatches were originally collected?
MR. HARMON: Objection. It's compound, beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: Once again, this has never been an issue before. And what's important on these swatches is the DNA or the genetic marker types that are going to be found through scientific testing. Number is not going to tell us the quantity and quality of DNA or the quantity and quality of any enzymatic typing or antigens that we would need to look at. So it's never been an issue.
MR. SCHECK: All right. Evidence tampering as far as you're concerned has never been an issue in your laboratory?
MR. HARMON: Objection. That's argumentative, your Honor.
THE COURT: Sustained.
MR. SCHECK: Has evidence tampering ever arisen as an issue in your laboratory?
MR. HARMON: That's argumentative. That's bad faith, your Honor.
THE COURT: Overruled.
MR. YAMAUCHI: No.
MR. SCHECK: Were you ever questioned by investigators from the District Attorney's office, a Mr. Thompson, a Mr. Stevens concerning the handling of the blood swatches in this case?
MR. HARMON: Objection. It's irrelevant, calls for hearsay. There's no foundation for this, your Honor.
THE COURT: Sustained.
MR. SCHECK: Were you aware of any investigation conducted by the District Attorney's office or anyone else--
THE COURT: Sustained. It's irrelevant.
MR. SCHECK: Now, on direct examination--withdrawn. One more question. In your examination of the bindles, did you notice anything unusual?
MR. YAMAUCHI: No.
MR. SCHECK: You said that you received--that when you received the blood vial, Mr. Simpson's reference sample, it was in the gray envelope.
MR. YAMAUCHI: Yes.
MR. SCHECK: Got that from Mr. Fung?
MR. YAMAUCHI: Yes.
MR. SCHECK: The envelope was not sealed?
MR. YAMAUCHI: No. It wasn't sealed yet.
MR. SCHECK: You needed to look at your note to refresh your recollection on that?
MR. YAMAUCHI: Certainly. I want to be sure. I knew it was written there.
MR. SCHECK: Do you recall testifying in some detail on direct examination about the envelope not being sealed?
MR. YAMAUCHI: On direct. I don't remember if that was asked or not.
MR. SCHECK: Do you recall being asked whether it was normal in your experience at the SID to receive a reference sample envelope that was not sealed?
MR. YAMAUCHI: I might have been asked--you want me to just answer the question?
MR. SCHECK: I'm asking if you recall saying that on direct.
MR. YAMAUCHI: Well, if I was asked that question, I would say it's not normal, but it's not out of the ordinary or extraordinary.
MR. SCHECK: Well, my first question to you is, do you recall testifying--being asked that question, questions to that effect on direct examination and giving answers about whether it was normal to receive an unsealed envelope with a blood vial?
MR. YAMAUCHI: Somewhere along those lines, it sounds familiar, but I can't be sure if that was asked in exactly that fashion or not.
MR. SCHECK: Do you recall discussing with Mr. Harmon or Mr. Goldberg or any of the Prosecutors the issue of the blood vial, the envelope not being sealed?
MR. YAMAUCHI: Yes.
MR. SCHECK: How long were those discussions?
MR. YAMAUCHI: Not very long at all. They--they asked me if it was or was not, and I told them no, it wasn't. They asked me if--
MR. SCHECK: Excuse me. You said no, it wasn't?
MR. HARMON: Your Honor, this is about the hundredth time today.
THE COURT: Yes. Mr. Scheck?
MR. SCHECK: I'm sorry. I'm sorry.
THE COURT: It is at least the 10th time. There won't be an 11th, will there?
MR. SCHECK: Your Honor, my apologies, but I'm--
THE COURT: Proceed.
MR. SCHECK: I'm allowed to object when the answer is not responsive.
THE COURT: You are, but you're not allowed to interrupt the witness when he's testifying.
MR. SCHECK: You go ahead, Mr. Yamauchi.
MR. YAMAUCHI: Okay. Where was I?
MR. SCHECK: You were telling us about your conversations with the Prosecutors, and they asked you whether it was normal to see an unsealed envelope containing a blood vial, you gave them an answer that it wasn't, and then you were about to say something else.
MR. YAMAUCHI: Occasionally, we work on evidence items that have not yet been booked. And so for that reason, it's not completely out of the ordinary.
MR. SCHECK: Is it your understanding of procedures concerning the taking of blood from a suspect that after the nurse draws the blood from the suspect and hands the vial to the requesting officer, that the envelope is then supposed to be sealed?
MR. HARMON: Objection. No foundation, calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Do you--have you examined the envelopes that contain the blood vials?
MR. YAMAUCHI: Well, obviously I looked at this one.
MR. SCHECK: Okay. Your Honor, first I would like to put on the elmo People's 163-H, which is three envelopes, and I'll start with the gray one.
THE COURT: Yes.
(Brief pause.)
MR. SCHECK: Does that appear to be the analyzed evidence envelopes that you ordinarily receive after blood is drawn from a suspect?
MR. YAMAUCHI: Yeah. It looks like it.
MR. SCHECK: All right. Now I would ask that we focus in on the middle there.
(Brief pause.)
MR. SCHECK: Now, with respect to the instructions, can you read here--you've read, "Officer requesting withdrawal of blood shall." You see that?
MR. YAMAUCHI: Yes.
MR. SCHECK: "1, enter the date and subject's full name on the label of the vial from this envelope and give the vial to the person withdrawing the blood."
MR. YAMAUCHI: Yes, I can read that.
MR. SCHECK: "2, instruct the person withdrawing the blood to; A, use no alcohol or other viable organic disinfectant on the subject's arm; B, completely fill vial in your presence; then C, initial the vial label; and D, complete the affidavit, the below affidavit." Am I reading correctly?
MR. YAMAUCHI: Yes.
MR. SCHECK: "3, when the vial is returned to you, enter your initials on the label and shake the vial vigorously."
MR. YAMAUCHI: Yes.
MR. SCHECK: "4, when the affidavit is completed, sign below--sign below it as a witnessing officer and seal the vial in this envelope using completed sealing evidence labels."
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. Now, could we--could we circle the word "Seal" and print this out?
THE COURT: Well, the jury will have it. Well, go ahead. Or do you want to put a check mark by no. 4 so you don't obscure all the small words?
MR. SCHECK: Thank you.
THE COURT: Unless you have a highlighting function.
MR. SCHECK: I think if he moves over to the very, very bottom, he can just underline "Seal." No. Actually in the line--and also in the line above where it says "And seal the vial in this envelope." Okay. Thank you.
MR. SCHECK: Now, "Sealed evidence labels" refers to what?
MR. YAMAUCHI: I would take it that that refers to the seals that we use to seal our envelopes, although you're questioning me in an area that's not my responsibility, and--and I have no part in that.
MR. SCHECK: Mr. Yamauchi--I understand.
MR. HARMON: Well, I'd like--I move to strike his last answer and maybe we can move on then, your Honor.
THE COURT: Overruled.
MR. SCHECK: I'm just asking you for a definition based on your knowledge of LAPD procedures. "Sealed evidence labels," that refers to those red or yellow labels that we have seen on evidence items?
MR. YAMAUCHI: That's what I would take it to refer to.
MR. SCHECK: Okay. Now--
MR. SCHECK: Your Honor, I would now like to display People's 183.
THE COURT: All right. Let's clear the--
MR. SCHECK: I think that's upside down.
THE COURT: That's upside down.
MR. SCHECK: Now, let's move in on the bottom half from "Officer requesting withdrawal" down.
MR. SCHECK: Now, do you recognize this to be a picture of the envelope that contained Mr. Simpson's blood vial?
MR. YAMAUCHI: It's kind of hard to read, but I recognize the name of the nurse that corresponds to the vial of blood and my notes.
MR. SCHECK: And can you see now that this box we're focusing in on now refers to the affidavit of the person withdrawing blood?
MR. YAMAUCHI: I can read that affidavit, "A person withdrawing blood."
MR. SCHECK: And it indicates that Thano Peratis, the nurse, gave the blood vial to Detective Vannatter?
MR. HARMON: Your Honor, I'm going to object. This is hearsay at this point.
THE COURT: Sustained.
MR. HARMON: Also beyond the scope.
THE COURT: Sustained.
MR. SCHECK: Isn't it your normal experience, Mr. Yamauchi, that after a police officer gets a vial of blood from the Parker Center from the nurse and delivers it to you in one of these envelopes, that it is sealed in accordance with the instructions on the envelope? Isn't that what you normally see?
MR. HARMON: Objection. That's two questions, your Honor. It's compound.
THE COURT: Sustained.
MR. SCHECK: Isn't it--I have to ask it again.
MR. YAMAUCHI: Would you mean not pointing at me like that?
MR. SCHECK: I was pointing--I'm sorry, Mr. Yamauchi. I was actually pointing at the screen. I wasn't pointing at you.
MR. YAMAUCHI: Okay. Thank you.
MR. SCHECK: My apologies. I'm pointing at the document.
MR. YAMAUCHI: All right.
MR. SCHECK: Isn't it the normal practice--withdrawn. Isn't it your normal experience that evidence envelopes containing blood vials from suspects that have been drawn at the Parker Center and hand delivered to police officers and then brought to you are sealed in accordance with the instructions on the envelope?
MR. YAMAUCHI: Well, like I was stating before, usually we're getting these items out of our evidence--our ECU, that's our evidence control unit. It is kind of rare that we receive them in this fashion, but evidence is received before it's booked. It happens sometimes.
MR. SCHECK: Your Honor, the printout I'd like to have marked as Defendant's 188.
THE COURT: 1188 I believe.
MR. SCHECK: 1188. I'm sorry.
(Deft's 1188 for id = printout)
MR. SCHECK: May I approach the witness?
MR. SCHECK: Section 4 of your DNA protocol is the one concerning evidence handling?
MR. YAMAUCHI: Yes.
MR. SCHECK: And does it not indicate that the only evidence items that will be processed on a walk-in basis will be those items that are received from a detective/officer that has completed the proper transfer of items into the evidence control unit, ECU?
MR. YAMAUCHI: That's what it reads there.
MR. SCHECK: And if something goes through the--such as a blood vial were to go through the ECU, it would be sealed in addition at the ECU?
MR. YAMAUCHI: Yes. If it goes through the normal procedure. Keep in mind also that it does state at the beginning of that protocol and procedure manual that these are guidelines and not meant to be taken step by step and that--as we know, this type of business requires different situations and different ways to respond to the situations. And this was a special situation. So I would say it's slightly out of the norm, but it's okay.
MR. SCHECK: Well, is it okay for a detective to receive a blood vial at 2:30 in an envelope that's unsealed, take it up to his office, have coffee and drive it out to the scene--
MR. HARMON: Objection, your Honor. It's argumentative.
THE COURT: Sustained. Beyond the scope of this witness' testimony as well.
MR. SCHECK: Now, you were asked on direct examination about removing blood from Mr. Simpson's blood vial on June 25th. Do you recall that?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, have you reviewed the records in the serology item description notes and the serology case summary sheets that refer to the withdrawal of blood from Mr. Simpson's blood vial for purposes of conventional serology testing?
MR. YAMAUCHI: I think I'm referring to that right now. I believe we're referring to the same note page.
MR. SCHECK: All right. Are your note pages marked by l numbers?
MR. YAMAUCHI: No. Mine don't have l numbers on all of them.
MR. SCHECK: Is this it?
MR. YAMAUCHI: Yeah, it looks like it.
MR. SCHECK: And this one that's--okay. All right.
MR. SCHECK: Your Honor, may I have these two pages marked as Defendant's--
THE COURT: 1189.
MR. SCHECK: All right. Maybe we ought to--1189-A will be the serology item description notes and 1189-B will be the serology case summary sheet.
(Deft's 1189-A for id = notes)
(Deft's 1189-B for id = summary sheet)
MR. SCHECK: Are you with me, Mr. Yamauchi?
MR. YAMAUCHI: Yes.
MR. SCHECK: Okay. Now, the serology case summary sheets indicates--reflects conventional serology testing performed by you and Greg Matheson between June 24th and June 28th or let me put it--let me withdraw that. You were requested to do it on June 24th. You started the conventional serology analysis on June 25th and it was completed on June 28th. Please refer to the sheet if that would refresh your recollection.
MR. YAMAUCHI: Yes.
MR. SCHECK: And this represents one conventional serology run done together by you and Mr. Matheson?
MR. YAMAUCHI: Yes.
MR. SCHECK: And to perform these conventional serology tests, what do you do with respect to the blood from the suspect; in this case, Mr. Simpson?
MR. YAMAUCHI: Could you be more specific?
MR. SCHECK: Sure. Is the actual way that you perform this test, to wet some threads in drops of blood and then use that for purposes of the electrophoresis that goes on in conventional serology?
MR. YAMAUCHI: Well, generally speaking, that's--that sounds about right.
MR. SCHECK: Is that how it was done in this instance? And I'm referring here to 1189-B.
MR. YAMAUCHI: Well, when I did the reference bloods, I--I did pretty much in that fashion what you just described.
MR. SCHECK: All right. And to your knowledge, did Mr. Matheson do a duplicate test on this or did you both just do one test?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Overruled.
MR. YAMAUCHI: Well, he--he did all the ABO and duplicated anything I might have done. I did the screening of the bloods. When the evidence came in line, he did the samples and I loaded them on the gel and ran the gel.
MR. SCHECK: So how many threads were created as reflected in 1189-B for the conventional serology tests between both yourself and Mr. Matheson from Mr. Simpson's blood vial?
MR. YAMAUCHI: I'm not sure because I wouldn't have created them all--you mean just the ones that I would have made?
MR. SCHECK: Well, looking at the test results, how many threads would have to be created to generate the results that are reflected on 1189-B?
MR. YAMAUCHI: At least two I'd say.
MR. SCHECK: All right. And so you did one and Mr. Matheson did one?
MR. YAMAUCHI: No. I--I would have done two. There's--wait. One, two--I would have used--excuse me--at least three for doing that analysis.
MR. SCHECK: And how many threads would Mr. Matheson need to do his analysis if any additional were needed?
MR. YAMAUCHI: Let's see. At least one more.
MR. SCHECK: All right. Now, you don't need three-quarters of a milliliter of blood to make four threads, do you?
MR. YAMAUCHI: No. But when you're doing the forward and reverse typing for the ABO, you need a decent quantity because you want to get separation between the blood cells and the plasma. So for that purpose, you need a little bit better volume.
MR. SCHECK: You need as much as three-quarters of a mil?
MR. YAMAUCHI: That might be on the high side, but it's approximately.
MR. SCHECK: Now, do you recall that--you know a criminalist named Mark Taylor; do you not?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you recall that he visited your laboratory at piper tech on January 18th, 1995 with myself, Mr. Blasier, and an individual named Dr. John Gerdes?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you recall that we took pictures that day of Mr. Simpson's blood vial?
MR. YAMAUCHI: Yes. I recall that.
MR. SCHECK: And you recall that Mr. Matheson was present at that meeting when we took pictures of the blood vial?
MR. HARMON: Objection. Beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: Yes.
MR. SCHECK: And at that meeting, did--was there not a review with you and Mr. Matheson with respect to each entry on the blood vial that reflected someone from LAPD entering into the blood vial and removing blood?
MR. HARMON: Objection. Calls for hearsay, speculation, beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: They were discussing some things and pointing here and there at--I don't know for sure exactly what they were talking about.
MR. SCHECK: You weren't part of that conversation?
MR. HARMON: Objection. It's vague as to those conversations.
THE COURT: Sustained.
MR. SCHECK: You said there was conversation you didn't understand?
MR. YAMAUCHI: Yes. They were talking next to where mark had the camera set up, next to those hot lights.
MR. SCHECK: There's an entry on the blood vial on--for June 25th that Mr. Harmon asked you about on direct examination, right?
MR. YAMAUCHI: As to June 25th, 1994?
MR. SCHECK: Yeah.
MR. YAMAUCHI: Yes.
MR. SCHECK: Your initials are on the vial as somebody that entered it and removed it?
MR. YAMAUCHI: Okay.
MR. SCHECK: Is that true?
MR. YAMAUCHI: Well, I would have to see that. I--that's something I would do, but I mean, it sounds like you're making a statement of fact.
MR. SCHECK: Well, I'm asking. Are there not--is there not a--on the blood vial itself, an indication that on June 25th you, as reflected by your initials, entered the vial to remove blood?
MR. YAMAUCHI: That sounds like something I'd do. I'd have to see the vial to make sure.
MR. SCHECK: Well, Mr.--don't you recall Mr. Harmon asking you questions about that entry on direct examination?
MR. YAMAUCHI: Whether I initialed it or not?
MR. SCHECK: Whether you removed blood from the vial on June 25th.
MR. YAMAUCHI: Of course I remember him asking me that, but you were talking again about my initials and stuff like that on there and the date.
MR. SCHECK: When--do you recall Mr. Taylor, others in the room questioning you about how much you took out of the vial on June 25th when we visited the laboratory on January 18th?
MR. HARMON: Objection. It's hearsay.
THE COURT: Overruled.
MR. YAMAUCHI: I don't remember them specifically asking me, but if they did, I would have referred to my notes.
MR. SCHECK: Do you have notes?
MR. YAMAUCHI: Yes.
MR. SCHECK: Of the meeting?
MR. YAMAUCHI: Of the meeting, no. Of my notes for the serology item description notes.
MR. SCHECK: Did you tell Mr. Taylor and the others in the room that you just took blood for threads, a drop or two, and you put back into the tube the blood that you didn't use?
MR. YAMAUCHI: Now I know I wouldn't say that because I would never put blood back in the tube.
MR. SCHECK: You didn't say that?
MR. YAMAUCHI: Nope.
MR. SCHECK: Did you say that you only used a drop or two that would be, at the most, .05 milliliters?
MR. YAMAUCHI: .05 milliliters. No.
MR. SCHECK: You did not say that about the amount of blood that you withdraw from the tube on June 25th, that you just took a drop or two constituting at most, .05 milliliters?
MR. YAMAUCHI: If they were asking me how much I took to make the threads, I might have said that. But overall, I took more out because I had to do the ABO typing also.
MR. SCHECK: My question is, did you tell Mr. Taylor and others in the room that you took just .05 milliliters to make threads when you went into the vial on June 25th?
MR. YAMAUCHI: If the question was, did I make threads, how much did I take out to make the threads, yes.
MR. SCHECK: Do you have as you sit here today an independent recollection of how much blood you took out of the vial on June 25th?
MR. YAMAUCHI: Looking back on my notes, I have approximately three-quarters of an ml.
MR. SCHECK: All right. And there is nothing--you're looking now at the serology case summary sheet?
MR. YAMAUCHI: Serology item description notes.
MR. SCHECK: Right. That's 1189-A, the one we were just talking--the one I just showed you?
MR. YAMAUCHI: Was one or the other.
MR. SCHECK: And that note reflects one three-quarters of a milliliter being withdrawn, correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: But there is no notation in any notes of Mr. Matheson taking three-quarters of a milliliter on June 27th?
MR. HARMON: Objection. That calls for speculation, hearsay.
THE COURT: Sustained. Sustained. All right. Mr. Scheck, we need to take a comfort break for the jurors. We'll take a five-minute comfort break. All right. Any jurors that want to step into the jury room, feel free to do so. Don't go away.
(Recess.)
(The following proceedings were held at the bench:)
THE COURT: All right. We're over at the sidebar. Mr. Harmon, what's up?
MR. HARMON: Before we forget, we want to start getting that discovery stuff. It's now obvious they have some material they intend to present. So we'd like to start receiving it this afternoon. I'm sure they've got it right there, Gerdes, Taylor stuff. If they don't have discovery, that was bad faith, and we need to clear the air on that. So either turn it over this afternoon or sanction them for misleading the jury, having no good faith basis for asking those questions. So pick your swords.
MR. SCHECK: If the Court wants to see the document I was referring to, I'll show it to the Court. I don't believe it's a discovery item.
THE COURT: Now that you've started using it for impeachment purposes, now it's discoverable. So cough it up.
MR. SCHECK: But, your Honor, there's no report.
THE COURT: If there's no reports, these people aren't testifying then. I'm giving you fair warning that if there aren't reports and you're using it to cross-examine, those witnesses are not testifying. Fair warning. Fair warning. Fair warning if there's no reports. Let's proceed.
MR. COCHRAN: Judge, can I say one thing?
THE COURT: No. No, Mr. Cochran.
(The following proceedings were held in open court:)
THE COURT: All right. Let the record reflect that we've got all of our jurors back. All right. Mr. Scheck.
MR. SCHECK: Mr. Yamauchi, do you have a problem with outbreaks of contamination at the LAPD laboratory?
MR. HARMON: Objection. It's vague as to outbreaks.
THE COURT: Sustained.
MR. SCHECK: Have you ever heard the phrase "Outbreaks of contamination"?
THE COURT: I take it we're referring to the serology PCR process?
MR. SCHECK: We're referring to the DNA testing.
MR. YAMAUCHI: I've heard it expressed in this case.
MR. SCHECK: Before this case, had you ever heard the phrase?
MR. YAMAUCHI: "Outbreak," no.
MR. SCHECK: Had you read it in any document?
MR. YAMAUCHI: Wouldn't have come to recollection before this case. No.
MR. SCHECK: Have you read the national research council report on DNA typing?
MR. YAMAUCHI: Yes, I have.
MR. SCHECK: All right. Do you recall encountering the phrase in that report?
MR. HARMON: Objection. Hearsay, no foundation.
THE COURT: Overruled.
MR. YAMAUCHI: Once again, because I saw it talked about in this case, I remember it from that. But prior to that, it wouldn't come to my recollection.
MR. SCHECK: In the course of DNA typing at your laboratory from the moment you started through the time that you did testing in this case, have there been incidents where you as laboratory analysts discovered what you considered to be contamination problems?
MR. YAMAUCHI: No.
MR. SCHECK: Was there an incident involving lots or reagents concerning amplification run no. 33 that caused you to consult with the manufacturer about the kits that you'd been given?
MR. HARMON: Objection. It's vague. "You" is vague, your Honor.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: All right. Was there an incident involving contamination which yourself, Erin Riley and others in your laboratory believed came from kits or reagents that you received from Roche?
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Rephrase the question.
MR. SCHECK: Do you have any recollection of contamination occurring in your laboratory which you believed was caused by kits you received from Roche?
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: Have you ever--withdrawn. Was there ever an incident of contamination in your laboratory which the people at the DNA unit believed came from the kits supplied by Roche?
MR. HARMON: Objection. Calls for speculation, no foundation.
THE COURT: Sustained. Why don't you cut the question in half.
MR. SCHECK: All right. Was there ever an incident in your laboratory involving contamination from kits?
MR. HARMON: Objection. Calls for speculation, hearsay, no foundation.
THE COURT: Overruled.
MR. YAMAUCHI: From kits specifically? We--we couldn't prove that or it couldn't be isolated down to actually being there, but it was put into a category where something to do with the reagents at that end were giving an anomalous result.
MR. SCHECK: Well, could you explain for us what the problem was as far as you knew it to--
MR. HARMON: Objection. No foundation. Calls for speculation.
THE COURT: Overruled.
MR. YAMAUCHI: Well, first of all, you're saying "Problem," and it's not necessarily a problem. What it is is, we have these controls like I was explaining before, and they're the indicators to us that something is a little bit different or out of the ordinary. And that indicator, by looking at our controls, we were able to figure out that something anomalous was taking place, and we isolated it to a specific area. As to whoever followed up on that and the responsibility of that, it was Mr. Matheson and Miss Riley.
MR. SCHECK: And you had no part in that?
MR. YAMAUCHI: Well, my initial input.
MR. SCHECK: The anomalous results that you were talking about were contamination appearing in the negative controls on certain items?
MR. YAMAUCHI: Well, the negative controls were showing activity, yes.
MR. SCHECK: Positive controls?
MR. YAMAUCHI: Positive controls were typing as they should.
MR. SCHECK: And as a result of the contamination in the negative controls--you examined some of these strips yourself; did you not?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. And you tried to make a determination when you examined them as to whether or not there was contamination in the laboratory?
MR. YAMAUCHI: That--well, yes. We would have to discover that, whether or not it's something to do with our handling process or some other area. There's ways of troubleshooting that.
MR. SCHECK: Did you participate in that investigation as to the source of the contamination?
MR. YAMAUCHI: Initially to a small extent, and then Erin Riley handled the rest.
MR. SCHECK: Were you informed about all the other steps that were taken to investigate the contamination?
MR. YAMAUCHI: Well, we discussed her train of thought and her rationale as to--
MR. SCHECK: I'm sorry. Are you finished?
MR. YAMAUCHI: Yeah. As to what her conclusions were and so on and so forth.
MR. SCHECK: What were the conclusions that were reached as a result of this investigation of the contamination?
MR. HARMON: Objection. Hearsay.
THE COURT: Sustained.
MR. SCHECK: Were you--did you subsequently operate on the premise that this contamination incident that you've just described was limited to just a series of bad lots in kits that you received from Roche?
MR. HARMON: Objection. It's irrelevant, calls for speculation, hearsay.
THE COURT: Overruled.
MR. YAMAUCHI: There was some correlation, yes.
MR. SCHECK: To your knowledge, did Roche--has anybody--did Roche indicate that any other laboratory had had problems with those kits?
MR. HARMON: Objection. That's hearsay, your Honor.
THE COURT: Sustained.
MR. SCHECK: The--could you describe for us what the validation samples are that you test on an--withdrawn. Do you test validation samples on an ongoing basis in your laboratory?
MR. YAMAUCHI: Validation samples, could you be more specific.
MR. SCHECK: Do you on an on-going basis test known samples in your laboratory to see if you're getting correct results?
MR. YAMAUCHI: Yes, with each run.
MR. SCHECK: You're now referring to the positive controls?
MR. YAMAUCHI: The positive amplification control as well as blood standards.
MR. SCHECK: Beyond that, do you have a program in your laboratory where you take known blood samples, that is from people in the lab and others, and on an on-going basis, periodic basis, have analysts perform tests on those known standards?
MR. YAMAUCHI: No. Nothing like that. But we do do the proficiency tests on a rather regular basis.
MR. SCHECK: As far--have you reviewed hybridization strips and validation studies and casework from your laboratory from 1993 forward, you personally?
MR. YAMAUCHI: From 1993 forward, I--I know my own stuff that I've worked on.
MR. SCHECK: Have you reviewed other strips?
MR. YAMAUCHI: Sometimes I confirm other hybridization sheets, yes.
MR. SCHECK: All right. As far as you know, from all the sheets you've seen, do you have a contamination problem at the LAPD laboratory?
MR. YAMAUCHI: Not a problem, but we see contaminants showing up, and that was an instance where such an anomaly showed up. And it's not outside of the ordinary from any other lab. That's why we have these controls set up within these systems to indicate to us that there's something there or possibly not there.
MR. SCHECK: Now, you just said that it wasn't any different from problems with other labs. How much familiarity do you have with work of other laboratories with respect to issues of contamination?
MR. YAMAUCHI: Well, I've talked to Mark Taylor and the people at Roche. That's why they have these controls set up within there, to indicate if anomalies occur where there's something to look at and consider.
MR. SCHECK: Your Honor, may we move now to the socks? And what I would request is that we put out some paper, the witness put on some gloves and that we put the socks out pretty much in the same area that we had them before when we conducted the direct examination.
THE COURT: All right.
(Brief pause.)
THE COURT: Do you have a board or something you want to use, Mr. Scheck? And, Mrs. Robertson, do we have some paper?
MR. SCHECK: Yes. Actually--may I suggest that we follow the same procedure we did before by putting--
THE COURT: All right.
MR. SCHECK: --- I guess the white paper on top of the cart, having the witness come down and remove the socks. And I'll put up the sock board, Prosecution sock board.
THE COURT: All right. What size are those?
MR. YAMAUCHI: These are medium.
THE COURT: Do we have any size large gloves? Mr. Scheck, we have one minor problem here. We don't have the right size gloves. All right. Let's proceed to something else.
MR. SCHECK: I have nothing else. This is the end.
THE COURT: This is it? My golly, let's find some gloves.
MR. SCHECK: I knew that would persuade--
THE COURT: Deputy Magnera indicates they have some large ones available. He'll make a phone call.
MR. SCHECK: I think I can proceed for just a moment then before we get that.
MR. SCHECK: Now, on June 14th, did you see the socks, item no. 13, that were recovered from Mr. Simpson's bedroom?
MR. YAMAUCHI: No.
MR. SCHECK: To your knowledge, on June 14th or 15th or at any time prior to August 4th, was a photograph taken of the socks?
MR. YAMAUCHI: Prior to August 4th, I really couldn't say. No.
MR. SCHECK: When I say a photograph, I'm referring now to photographs other than those that were taken before it was collected. Are we--do we understand each other?
MR. YAMAUCHI: I wouldn't know.
MR. SCHECK: All right. Now, do you recall a visit by Dr. Michael Badin and Dr. Barbara Wolf to the LAPD lab in June of 1994?
MR. HARMON: Objection. Beyond the scope.
THE COURT: Sustained.
MR. SCHECK: Your Honor, this goes to the socks.
THE COURT: Briefly. Briefly.
MR. SCHECK: Do you know of such a visit by Defense experts Badin and Wolf in June? Were you present for that?
MR. YAMAUCHI: That sounds familiar. I don't know if it was in June or not.
MR. SCHECK: All right. And when Dr. Badin and Dr. Wolf visited the LAPD lab, did you have occasion to view the socks in preparation for that visit?
MR. HARMON: Objection. It's beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: Do you have any specific dates?
MR. SCHECK: Well, would June 22nd help?
MR. YAMAUCHI: Did I see him on the 22nd?
MR. SCHECK: Well, actually what I'm asking you is, do you recall seeing them in preparation for the visit or during the visit of Dr. Badin and Dr. Wolf?
MR. YAMAUCHI: I'm not sure. I didn't take notes that day and I don't have independent recollection using your own terminology.
MR. SCHECK: Well, so you do recall a visit by Dr. Badin and Wolf where you were present?
MR. YAMAUCHI: Yes.
MR. SCHECK: And items of evidence were displayed, but they were in bags?
MR. YAMAUCHI: Some were, yeah.
MR. SCHECK: And Dr. Badin and Dr. Wolf to the best of your knowledge were not allowed to handle and examine them? Is that your understanding and your recollection?
MR. YAMAUCHI: I recall them asking to--to see certain items and then asking if they could look at them with magnifying glasses and stuff, and basically we were obliging them.
MR. SCHECK: Do you recall seeing the socks during that visit?
MR. YAMAUCHI: I can't recall specifically. I didn't take notes and my--Michele Kestler was taking notes.
MR. SCHECK: Now, on June 29th, you--well, actually now that he's outfitted with the gloves, maybe we should--
THE COURT: Proceed.
MR. SCHECK: Could you please come down here, Mr. Yamauchi, and if you would open the envelopes, remove the socks and lay them out.
MR. YAMAUCHI: Just got done opening the first plastic bag. The second plastic bag's already been cut. Removing a white envelope. Removing a brown paper bag from the white envelope. Removing a white envelope from the brown paper bag.
THE COURT: Mr. Shapiro, Mr. Cochran, you're going to have to situate yourself to the left.
MR. COCHRAN: Sorry, your Honor.
MR. YAMAUCHI: Removing one sock, removing the other sock from the white paper envelope. Laying the socks out.
MR. SCHECK: Now, Mr. Yamauchi, could I ask you to move the various pieces of packaging--
MR. SCHECK: Your Honor, maybe--okay. Your Honor, could we just turn the paper around so the socks are closest to the jury?
THE COURT: Yes.
(Mr. Scheck does so.)
MR. SCHECK: And could I ask you to move back, if you could, the bags and the scissors.
MR. YAMAUCHI: (The witness complies.)
MR. SCHECK: Yes. Now, on June 29th, you were part of an analysis of the evidence in this case that was being conducted by yourself, Mr. Matheson and Michelle Kestler.
MR. HARMON: Objection. Beyond the scope. It's also argumentative.
THE COURT: Sustained.
MR. SCHECK: On June 29th, did you have occasion to review various items of evidence in this case?
MR. HARMON: Objection. Beyond the scope.
THE COURT: Overruled.
MR. YAMAUCHI: Yes. We looked at various items together.
MR. SCHECK: And that was you; is that correct?
MR. YAMAUCHI: Yes.
MR. SCHECK: It was Greg Matheson?
MR. YAMAUCHI: Yes.
MR. SCHECK: And it was Michele Kestler?
MR. YAMAUCHI: Yes.
MR. SCHECK: And Michele Kestler is the head of the laboratory?
MR. YAMAUCHI: She is now.
MR. SCHECK: And at that time, where did you conduct this examination of evidence?
MR. YAMAUCHI: Where? In Michele Kestler's--I believe we were in her office.
MR. SCHECK: And Mr. Matheson was the one who was keeping notes?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you were the one who was actually taking the various items of evidence out and displaying them for the group?
MR. YAMAUCHI: Yes. On a lot of items, I was displaying them.
MR. SCHECK: And the purpose of this examination of each item of evidence was to make an assessment as to what kinds of serological or DNA tests should be performed on the various items of evidence?
MR. YAMAUCHI: Yes. And at that time--let me explain once again.
MR. SCHECK: Was that the purpose of the examination?
MR. HARMON: Well, your Honor, again--
THE COURT: Yes.
MR. SCHECK: I move to strike. I asked him a specific question. I did not ask for an overall explanation. I move to strike.
THE COURT: Reask your question. The answer is stricken.
MR. SCHECK: All right. Did you go through the items of evidence collected up to that time one by one?
MR. YAMAUCHI: I'm not aware of--well, yes, we looked at them one by one, but I'm not aware of what all evidence items were looked at. I was--I was along there to assist in the way that I'm trained.
MR. SCHECK: Well, let me show you--are you familiar with a handwritten summary that was made of this review on June 29th?
MR. YAMAUCHI: Yes. That looks like the one that Mr. Matheson was making out.
MR. SCHECK: Can I mark this Defendant's next in order, your Honor, document that I think previously we referred to as exhibit K.
THE COURT: 1190.
MR. SCHECK: 1190?
(Deft's 1190 for id = evidence sheet)
MR. SCHECK: Now, 1190 appears to you to be the sheet that Mr. Matheson was filling out with respect to the various items of evidence that the three of you were reviewing?
MR. YAMAUCHI: It looks like it.
MR. SCHECK: Okay. And in the course of this review on January 29th, you actually measured centimeters the Bundy swatches?
MR. YAMAUCHI: Yes.
MR. SCHECK: You took out a ruler and you didn't even touch the swatches. You just got near them and made your best measurements?
MR. YAMAUCHI: Excuse me. In millimeters I believe. I'm not sure.
THE COURT: All right. Mr. Yamauchi, you've going to have to keep your voice up for the court reporter.
MR. SCHECK: And there came a--and were you reviewing these items on white pieces of lab paper in Miss Kestler's office?
MR. YAMAUCHI: Yes. We had bench stoke, which is--it's like a paper with a kind of a waterproof seal on the back.
MR. SCHECK: Would you be changing the paper as you went from item to item?
MR. YAMAUCHI: Yes, unless we were looking at swatches which have their bindles underneath them, not allowing them to touch the table.
MR. SCHECK: Now, there came a time when the three of you looked at the socks?
MR. HARMON: Objection. That's argumentative. It calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Did there come a time when the three of you looked at the socks?
MR. YAMAUCHI: If it's--if it's in there, we took a look at it.
MR. SCHECK: All right. I'm showing the witness page 2 of 1190. Does that refresh your recollection?
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, would like you to turn over I guess the sock I'm pointing to now.
MR. SCHECK: One second, your Honor.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: There's a sock that is now closest to the jury, and by the heel, there appears to be a no. 13 on it. Do you see that, sir?
MR. YAMAUCHI: Yes.
MR. SCHECK: All right. Now, let me just ask you to come to the board with me, which is 262-A, and I ask you to look at what's being depicted as sock A.
MR. YAMAUCHI: Okay.
MR. SCHECK: And the photograph to the right of sock A. See that?
MR. YAMAUCHI: Okay.
MR. SCHECK: And would you agree that in that photograph of sock A, there appears the same no. 13 that we see on the sock closest to the jury?
MR. YAMAUCHI: That's the way it appears.
MR. SCHECK: All right. Can we agree to call this sock with the no. 13 on the heel sock A? All right? For purposes of making this record.
THE COURT: All right.
MR. YAMAUCHI: Yes.
MR. SCHECK: Now, would you turn sock a over?
MR. YAMAUCHI: (The witness complies.)
MR. SCHECK: Do you see an arrow pointing upwards with the no. 13 on sock A?
MR. YAMAUCHI: Yeah, that appears to be a 13. I'm not sure. It's not clearly legible.
MR. SCHECK: And above that arrow, do you see a cut-out?
MR. YAMAUCHI: Yes.
MR. SCHECK: And what would you estimate the size of that cut-out to be?
MR. YAMAUCHI: Rough approximation, approximately four by one centimeter.
MR. SCHECK: Now, in the notes taken by Mr. Matheson, is there any observation--
MR. HARMON: Objection. That calls for hearsay, your Honor.
THE COURT: Sustained.
MR. SCHECK: Do you know of any notation being made by yourself or anyone else on June 29th of seeing a reddish stain in the position of the cut-out on sock A?
MR. HARMON: Objection. Calls for speculation. There's no foundation.
THE COURT: Sustained.
MR. SCHECK: Were notations being made of the observations of yourself, Mr. Matheson, Miss Kestler on June 29th as you examined items of evidence?
MR. HARMON: Objection. Calls for speculation. No foundation.
THE COURT: Sustained.
MR. SCHECK: Were you making observations, comments on the items of evidence you were reviewing on June 29th?
MR. YAMAUCHI: Was I--Greg was taking notes.
MR. SCHECK: All right. You reviewed those notes?
MR. YAMAUCHI: Yes.
MR. SCHECK: Do those notes reflect--
MR. HARMON: Your Honor, same objection. It's hearsay.
THE COURT: Sustained.
MR. SCHECK: Did you or anyone else in that room on June 29th observe a reddish stain in the position of the cut-out on sock A?
MR. HARMON: Objection. Calls for speculation, hearsay, no foundation.
THE COURT: Sustained. You can ask this witness as to what he himself saw.
(Discussion held off the record between Defense counsel.)
MR. SCHECK: In terms of your observations, did you see a reddish stain in the area of the cut-out on sock A?
THE COURT: Mr. Scheck, let's--that's not necessary.
MR. SCHECK: Okay.
THE COURT: Answer the question, Mr. Yamauchi.
MR. SCHECK: Did you see a reddish stain in the area of the cut-out on sock A?
MR. YAMAUCHI: No. I've never seen a reddish stain. The only observation I've ever made pertaining to a stain was some discoloration.
MR. SCHECK: All right. Did you see a reddish discoloration in the area of the cut-out on June 29th on sock A?
MR. HARMON: Objection. Asked and answered.
THE COURT: Overruled.
MR. YAMAUCHI: No.
MR. SCHECK: Did you see in the area of the cut-out on sock a the material of the sock being crinkled and puckered?
MR. YAMAUCHI: I can't remember that--well, that much detail. But what I do remember, with a cursory observation, look at, you couldn't notice any stains on that particular item. We didn't really look at it in detail at that time because we were just generating notes, and I guess they needed it for some type of a game plan as to how to handle this evidence.
MR. SCHECK: So the answer to my question with respect to whether you saw the material in the area of the cut-out on sock a as being crinkled and puckered on June 29th, the answer is no?
MR. HARMON: Objection. Asked and answered.
THE COURT: Overruled.
MR. YAMAUCHI: I don't recall specifically crinkled or puckered or anything like that.
MR. SCHECK: On June 29th, you knew that these socks came from Mr. Simpson's bedroom?
MR. YAMAUCHI: I may or I may not have at that point. I'm not sure.
MR. SCHECK: Was there any discussion among you and Mr. Matheson and Miss Kestler as to whether the socks came from Mr. Simpson's bedroom?
MR. HARMON: Objection. Calls for hearsay.
THE COURT: Sustained.
MR. SCHECK: Was it your state of mind on June 29th that these socks were a particularly important piece of evidence?
MR. YAMAUCHI: I don't remember that clearly. But all the items of evidence that we were looking at, I didn't know the history behind each and every one of them. I don't know when I heard that that was from his house or where they collected it from or anything like that.
MR. SCHECK: You just said I believe that you're sure that the examination of these socks was cursory. Were those your words?
MR. YAMAUCHI: Yes.
MR. SCHECK: Do you have an independent recollection that the examination of these socks, a white piece of paper, Michele Kestler's office with you and Mr. Matheson, Michele Kestler is cursory?
MR. YAMAUCHI: That's right. We looked at everything quickly. We didn't take time to take a very detailed examination of the evidence items.
MR. SCHECK: You measured the swatches?
MR. YAMAUCHI: There was a purpose behind that and they had their reasons for wanting to do that.
MR. SCHECK: Your purpose in reviewing each of these items was to make a determination as to what kind of further serological or DNA testing should be performed?
MR. YAMAUCHI: I think the key word's "Potential," what potential types of testing could be performed. It wasn't meant to hard and fast draw the line here and say, "We're sending this here and that there." But we needed some kind of idea or, you know, they did. They're the ones that make the decisions in that sort of area.
THE COURT: Mr. Scheck, do you need him there at that location? Because the court reporter is having great difficulty with his back turned toward her.
MR. SCHECK: Well, perhaps--maybe if we face--if he faces this way and I stand over here, that might be better.
THE COURT: Don't forget the jurors.
MR. SCHECK: Well, no, I'm not.
MR. SCHECK: In order to determine the potential for testing, you have to make observations about the amount of blood on an item?
MR. HARMON: Objection. That's argumentative.
THE COURT: Sustained. Rephrase the question.
MR. SCHECK: In the course of determining the potential for testing, is it not important to make observations about blood on the various items of evidence?
MR. YAMAUCHI: Well, if it's not patently obvious, in other words, if you can't--it doesn't jump right out at you, then there's not much we can do about it. At that stage, we just wanted to take a look at it and say, "Wow, there's blood here, okay. Then looks like there's enough potentially to do RFLP." But if it's not obvious in such a quick look, then we couldn't make that determination.
MR. SCHECK: Wasn't--
MR. YAMAUCHI: And it would have to be looked at again more carefully at a later time.
MR. SCHECK: Wasn't one of the boxes on this sheet you were preparing to determine--
MR. HARMON: Objection. That misstates it. He didn't prepare that, your Honor.
THE COURT: Sustained.
MR. SCHECK: Wasn't one of the boxes on the sheet that Mr. Matheson was writing on--
MR. HARMON: Objection. That's irrelevant. It's hearsay. It's Matheson's report.
THE COURT: Sustained. The form is irrelevant at this point.
MR. SCHECK: Well, wasn't one of the determinations that you were assisting in making is what kind of future testing could be performed on the various evidence items?
MR. YAMAUCHI: Yes. I--excuse me. I stated that already. We were looking at these things to see whether they had potential for RFLP or PCR and serological testing, conventional serological testing. So we had to take a quick run through and look at them and assess them. They--that was by no means--at least indicated to me by Michele and Greg going to be a final analysis by any stretch.
MR. SCHECK: Well, you were trying to determine whether you could perform conventional serology, RFLP, PCR or all of them on a particular item, right?
MR. HARMON: Objection. Asked and answered.
THE COURT: Overruled.
MR. SCHECK: Isn't that right?
MR. YAMAUCHI: Yes.
MR. SCHECK: And you were also trying to determine whether you could perform all of those tests and still have some left over to give to the Defense?
MR. YAMAUCHI: Yes.
MR. SCHECK: And wasn't that the purpose of looking at these items?
MR. YAMAUCHI: To get a general idea, an approximate idea of what you just stated, yes.
MR. SCHECK: And in order to determine if you could do an RFLP test, a PCR test and a conventional serology test on sock A, don't you have to examine it to determine how much blood is on it if any?
MR. HARMON: Objection. That's argumentative, "Blood."
THE COURT: Overruled.
MR. YAMAUCHI: Once again, I was under the understanding that we were there to do what we could by just looking at the items. Further testing to be sure whether or not there's blood on it would have to be done and tested with something like that phenolphthalein test that I explained earlier. That was not a part or an intention of that particular meeting. At least, that's not what was conveyed to me.
MR. SCHECK: In other words, you were taking out these evidence items and looking at them to determine whether you could perform conventional serology, RFLP and PCR, but you weren't taking any particular care to look at the item to see if there was blood on it. Is that what you're saying?
MR. HARMON: Objection. Argumentative.
THE COURT: Sustained as phrased.
MR. SCHECK: Mr. Yamauchi, after you, Michele Kestler and Mr. Matheson put that sock out--put those socks out on white paper, looked at them, did you not conclude that you had done a blood search and none--no blood was observed?
MR. HARMON: Objection. That's compound.
THE COURT: Sustained.
MR. SCHECK: Did you not conclude after your examination of the socks there was no blood on them?
MR. YAMAUCHI: No. Not definitively. If you add in visual observation, that probably would be okay. But we didn't do any chemical test to show that for sure there's no indication of blood there.
MR. SCHECK: So from your visual observation and examination of the socks, you saw no blood on either of them?
MR. YAMAUCHI: I didn't see anything that appeared to be blood at that time.
MR. SCHECK: And after you I guess--did there come a point in time when you wrapped up the socks and you put them back I guess at that point in the brown paper bag?
MR. YAMAUCHI: Yeah. At a certain point, we would have concluded and have to put everything away.
MR. SCHECK: And you put both socks in that same brown paper bag?
MR. YAMAUCHI: I would have put it back as I had found it when I took it out. I can't remember exactly which way that was.
MR. SCHECK: When you found it on June 29th, were both socks just in that--excuse me--brown paper bag?
MR. YAMAUCHI: I believe so.
MR. SCHECK: Sorry?
MR. YAMAUCHI: I believe so.
MR. SCHECK: And they were subsequently put in the envelope?
MR. YAMAUCHI: Yes. I believe that was done at a different time.
MR. SCHECK: And to your knowledge, have any of the cuts in either of those socks been made by Defense experts?
MR. HARMON: Objection. Calls for speculation.
THE COURT: Sustained.
MR. SCHECK: Do--when you put the socks found back in the--in its packaging on June 29th, did you see any reddish powder of any kind on the white piece of paper?
MR. YAMAUCHI: I don't recall anything like that.
MR. SCHECK: No further questions.
THE COURT: All right. Mr. Yamauchi, would you repackage the socks for us, please.
(The witness complies.)
THE COURT: All right. Let the record reflect Mr. Yamauchi has returned the item to the bag, the socks. And, Mrs. Robertson, if you would retake possession of that. All right. Ladies and gentlemen, we're going to take our recess for the afternoon session. Please remember all of my admonitions to you; do not discuss this case amongst yourselves, do not form any opinions about the case, don't allow anybody to communicate with you and do not conduct any deliberations until the matter has been submitted to you. As far as the jury is concerned, we'll stand in recess until 9:00 A.M. tomorrow morning. All right. We'll be in recess. Thank you. Mr. Yamauchi, tomorrow morning, 8:45. Thank you.
(At 4:45 P.M., an adjournment was taken until, Wednesday, May 30, 1995, 9:00 A.M.)
SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES
Department no. 103 Hon. Lance A. Ito, Judge
The People of the State of California,)
Plaintiff,)
Vs.) no. BA097211)
Orenthal James Simpson,)
Defendant.)
Reporter's transcript of proceedings Tuesday, May 30, 1995
Volume 156 pages 29707 through 29937, inclusive
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APPEARANCES:
Janet M. Moxham, CSR #4588 Christine M. Olson, CSR #2378 official reporters
FOR THE PEOPLE: Gil Garcetti, District Attorney by: Marcia R. Clark, William W. Hodgman, Christopher A. Darden, Cheri A. Lewis, Rockne P. Harmon, George W. Clarke, Scott M. Gordon Lydia C. Bodin, Hank M. Goldberg, Alan Yochelson and Darrell S. Mavis, Brian R. Kelberg, and Kenneth E. Lynch, Deputies 18-000 Criminal Courts Building 210 West Temple Street Los Angeles, California 90012
FOR THE DEFENDANT: Robert L. Shapiro, Esquire Sara L. Caplan, Esquire 2121 Avenue of the Stars 19th floor Los Angeles, California 90067 Johnnie L. Cochran, Jr., Esquire by: Carl E. Douglas, Esquire Shawn Snider Chapman, Esquire 4929 Wilshire Boulevard Suite 1010 Los Angeles, California 90010 Gerald F. Uelmen, Esquire Robert Kardashian, Esquire Alan Dershowitz, Esquire F. Lee Bailey, Esquire Barry Scheck, Esquire Peter Neufeld, Esquire Robert D. Blasier, Esquire William C. Thompson, Esquire
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I N D E X
Index for volume 156 pages 29707 - 29937
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Day date session page vol.
Tuesday May 30, 1995 A.M. 29707 156 P.M. 29804 156
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LEGEND: Ms. Clark-mc Mr. Hodgman-h Mr. Darden d Mr. Kahn-k Mr. Goldberg-gb Mr. Gordon-g Mr. Shapiro-s Mr. Cochran-c Mr. Douglas-cd Mr. Bailey-b Mr. Uelmen-u Mr. Scheck-bs Mr. Neufeld-n
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CHRONOLOGICAL INDEX OF WITNESSES
PEOPLE'S witnesses direct cross redirect recross vol.
Yamauchi, Collin 156 (Resumed) 29714bs (Resumed) 29807bs
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ALPHABETICAL INDEX OF WITNESSES
Witnesses direct cross redirect recross vol.
Yamauchi, Collin 156 (Resumed) 29714bs (Resumed) 29807bs
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EXHIBITS
DEFENSE for in exhibit identification evidence page vol. Page vol.
1183 - 9-Page document 29725 156 entitled "DNA: A blind trial study of 3 commercial technology testing laboratories"
1184 - 8-Page document 29725 156 entitled "Forensic DNA technology testing laboratories"
1185 - 5-Page document 29796 156 entitled "Serology item description notes"
1186 - Chart 29851 156 entitled "Mr. Yamauchi's diagram of glove found at Rockingham"
1187 - 1-Page document 29867 156 entitled "Yamauchi - entries into epr-6/14/94"
1188 - Photograph of 29896 156 an analyzed evidence envelope with blue markings
1189-A - 1-Page document 29898 156 entitled "Serology item description notes"
1189-B - 1-Page document 29898 156 entitled "Serology summary sheet"
1190 - 11-Page document 29924 156 filled out by Mr. Matheson