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REPORTER'S DAILY TRANSCRIPT NOVEMBER 7, 1996 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES SHARON RUFO, ET AL., N/A, PLAINTIFFS, VS. ORENTHAL JAMES SIMPSON, ET AL., DEFENDANTS. SANTA MONICA, CALIFORNIA THURSDAY, NOVEMBER 7, 1996 8:58 A.M. DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE (REGINA D. CHAVEZ, OFFICIAL REPORTER) THE COURT: Morning. JURORS: Good morning, Your Honor. THE COURT: You may proceed. MR. PETROCELLI: Good morning, Your Honor. Plaintiffs call Dr. Robert Huizenga. ROBERT HUIZENGA, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Please be seated. Would you please state and spell your name for the record. THE WITNESS: Robert Huizenga, R-O-B-E-R-T H-U-I-Z-E-N-G-A. DIRECT EXAMINATION BY MR. PETROCELLI: Q. Good morning, Doctor. A. Morning. Q. You and I don't know each other, do we? A. No, we don't. Q. We just met this morning in the men's room, right? A. That's correct. (Laughter.) Q. (BY MR. PETROCELLI) You're a licensed physician? A. Yes, I am. Q. What is -- you're an internist, right? A. Yes, I am. Q. Okay. Now, you were requested by Mr. Simpson's lawyer, Robert Shapiro, in the criminal action, to consult with O.J. Simpson on June 15, 1994 correct? A. That is correct. Q. And Mr. Shapiro is a patient of your partner, right? A. That is correct. MR. LEONARD: Objection. Hearsay; lack of relevance. THE COURT: Overruled. Q. (BY MR. PETROCELLI) He's a friend of yours, also? A. No, he's not. Q. Social acquaintance? A. I wouldn't say he's a social acquaintance. Q. In any event, Mr. Simpson was brought to your office on the 15th of June and you examined him, correct? A. Yes, I did. Q. And you then examined him on the 17th of June, two days later, correct? A. Yes, I did. Q. 1994, right. Now, the examination on the 15th occurred at your office, right? A. Yes, it did. Q. And the examination on June 17th occurred at the home of Robert Kardashian, a friend of Mr. Simpson's, right? A. That is correct. Q. And at the time that you were from -- with Mr. Simpson, there were a number of other folks present, as well, right? A. That is correct. Q. People involved with -- involved with Mr. Simpson's criminal defense team, correct? A. That is correct. Q. Dr. Michael Baden, a forensic pathologist, was there, right? A. Yes, he was. Q. Dr. Henry Lee, correct? A. That's correct. Q. And a lot of lawyers, right? MR. LEONARD: Objection. Vague and leading. THE COURT: Overruled. THE WITNESS: A lot of lawyers. Q. (BY MR. PETROCELLI) Okay. Now, you took some photographs of Mr. Simpson on the 15th, correct? A. Yes, I did. Q. Did you also take some on the 17th, right? A. No, I did not. Q. But you saw others taking photographs on the 17th right? A. That is correct. Q. Okay. Just to simplify this, let me show you what has been marked as -- MR. PETROCELLI: May I approach, Your Honor? THE COURT: You may. Q. (BY MR. PETROCELLI) -- Exhibits 714 and 715. And what they are collectively, are photographs from the June 15 and June 17 -- the first group are photographs of the fingers and hands; the second group are photographs of the rest of Mr. Simpson's body. And I'd just like you to authenticate that those indeed are the photographs that you took or saw being taken. A. This is a combination of the pictures that were taken on the 15th and the 17th. Q. And you want to just take a quick look at the ones in it, the notebook, as well, just to make sure? MR. LEONARD: Your Honor, we offered to stipulate those are the photographs. MR. PETROCELLI: Okay. They've stipulated. There's no further need for you to look at these. You want to put these back in order and put them up on the Elmo? Q. (BY MR. PETROCELLI) Now, on the 15th and on the 17th, you made observations about the -- about the physical condition of Mr. Simpson's hands, right? A. That is correct. Q. Is it fair to say that no material change had occurred in his hands between the 15th and the th, correct? A. There was subtle healing, but no material changes had occurred in those two days. Q. No new injuries or marks, correct? A. There were no new injuries on the hands. Q. So when asking the questions about the marks and injuries on the hands, you refer to your observations both on the 15th and the 17th; that would be fair, right? A. That would be fair, in my opinion. Q. Okay. This way, I don't have to do each one separately. Okay. We can speed it up a little bit. Let me show you what we will mark as the next exhibit in order. THE CLERK: 2148. MR. PETROCELLI: Which will be 2148. (The instrument herein referred to as diagram left hand drawn by Robert Huzienga dated 6/15/94 was marked for identification as Plaintiffs' Exhibit No. 2148.) MR. PETROCELLI: See if this will show up on the Elmo. Q. (BY MR. PETROCELLI) First, let me show it to you. And why don't you identify it for the record. A. This was the diagram that I drew initially, when I saw him on the 15th, of his left hand. Q. And it is a diagram with notes on it, correct? A. Yes, it is. Q. And the notes describe injuries to his left hand, correct? A. That is correct. Q. Okay. I can't read your writing, Doctor. I guess that's not unusual. I think you'll have to translate for us. MR. PETROCELLI: Steve will that show on the Elmo? You want to give it a shot? Q. (BY MR. PETROCELLI) Can you walk us through those injuries? That pointer opens up too. MR. PETROCELLI: It might be easier, maybe, if you can move beside the television and the jurors can see a little bit better, over to that end or that end. Can you all see? JURORS: Um-hum. THE COURT: Thank you. THE WITNESS: That's a laceration. Q. (BY MR. PETROCELLI) Speak up, Doctor. A. You would like me to describe each -- Q. Yeah. A. -- laceration initially, or -- Q. You -- the two days combined, you observed three cuts or lacerations on Mr. Simpson's hand; is that correct. Left hand? A. Left hand; that is correct. Q. And you observed seven abrasions, correct? A. On his left hand; that is correct. Q. So three cuts and seven abrasions on the left hand, right? A. Correct. Q. And on the right hand, you observed one cut, correct? A. That is correct. Q. Okay. So a total of eleven on both hands? A. Correct. Q. Can you -- now, this is the left hand. And could you please describe what your observations were. MR. PETROCELLI: You might try zooming in. THE WITNESS: On the fourth finger, we call this here, would be his -- approximately where the fingernail ends; and he had just under the fingernail, what we call the distal interphalangeal joint, on the left fourth finger, on the medial -- the inside side, he had a -- the beginning of a relatively easily sloped U-shape laceration that extended from that distal interphalangeal joint to the proximal interphalangeal joint. And the initial half of it -- this was approximately a two-and-a-half-centimeter laceration -- the initial half of that, the initial centimeter and a quarter, was a very superficial laceration, and then it went to a slightly deeper, but actually more of an avulsion-type laceration, or the more proximal half of that lesion. This initial portion appeared to have a point of entry something like 90 degrees to the plane of the hand. If this is the plane of the hand (indicating), there seemed to be a flap-type of injury, so that the injury seemed to be coming from 90 degrees in this direction and parallel to the access of the fingers. So it appeared to be an area right here, where you had this very thin, very small, serrated, undulating edge flap here. There was no flap or no indication at all it was a small, avulsed segment. It wasn't necessarily a laceration, where you can take the wound and slap both edges together. There was a tiny piece of skin missing. The second laceration was a relatively small, half of a centimeter or three-eighths of an inch, semicircular laceration that appeared, when you matched the hands together, to almost come contiguous with this other injury. This, on my initial evaluation on the 15th, was still open. There wasn't necessarily a closure of that, but it was very superficial. It looked like, kind of, you could call it a bad paper cut. This was the smoothest of the injuries. And it appeared that the -- that the cut came something more in this direction to the plane of the hand, so that it was more in, say, a 20-degree angle where this seemed to have been cut open. And then the point of entry seemed to be, instead of parallel, it seemed to have been coming in this direction, perpendicular, actually, to the finger. And the third laceration was a fishhook-type laceration that was immediately over his left third proximal interphalangeal joint, this proximal finger joint. And it was, if I remember correctly, approximately a bit over a centimeter, to a centimeter and a half, which would be something like a bit under a half of an inch. And it had an angulated, almost fishhook appearance if you looked at it coming from the other direction. And there did appear to be a little bit more of a sharp angle right here. It took a sharp angle at the very end. There was a little, tiny dissel (sic). And this injury seemed to be something coming more, again, at about 20 or 30 degrees, because it was a beveled, flat-like injury, again relatively superficial, but in a bad area because it was right smack in a moving joint. And it also wasn't particularly deep, but it was in an area where there was a little bit more erythema or redness heaped up in the lateral areas. And that was the three lacerations. Q. You may resume the witness stand. When you indicated in reference to one of the cuts that it seemed like a paper cut, you were not suggesting that the cut was caused by paper, correct? A. No, I am not. Q. That's just an expression that you use in describing a particularly sharp cut, right? A. Correct. Q. Okay. MR. PETROCELLI: The next exhibit in order, Erin? THE CLERK: 2149. MR. PETROCELLI: 2149. (The instrument herein referred to as Robert Huzienga's report dated 6/15/96 was marked for identification as Plaintiffs' Exhibit No. 2149.) MR. PETROCELLI: Just these two pages we're going to mark. They're from a report that you gave on June 15, 1994. THE WITNESS: Okay. MR. PETROCELLI: I'm really only interested in these two pages. I showed you these before court. MR. LEONARD: I didn't know which part you're -- (Counsel reviews exhibit.) MR. PETROCELLI: These are the other ones I'm going to show him. You might as well take a look at them. Okay. Q. (BY MR. PETROCELLI) Could you just briefly verify that these two diagrams of the left and right hands were prepared by you after your visit on the 15th with Mr. Simpson? A. Yes, they were. Q. Okay. And then we'll talk about them. You have there exhibit -- MR. PETROCELLI: Move this into evidence, Your Honor. THE COURT: It's three pages? How many pages is it? MR. PETROCELLI: Two. MR. LEONARD: I agree to the -- I don't have any objection to the first two pages. There's more pages attached to the exhibit. THE COURT: That's what I was concerned about. MR. PETROCELLI: If it please Your Honor, I'll put the whole report in. I was only interested in the two pages. MR. LEONARD: That's all I'm interested in. THE COURT: Receive the two and we'll have to detach the two. MR. PETROCELLI: I'll detach the two. THE COURT: Okay. (The instrument previously marked as Plaintiffs' Exhibit 2148 was received in evidence.) (The instrument previously marked as Plaintiffs' Exhibit 2149 was received in evidence.) MR. PETROCELLI: Can you put the first one up, Steve. (Mr. Foster complies.) Q. (BY MR. PETROCELLI) Can you see that okay? A. Yeah. Q. Is that the diagram that you made after Mr. Simpson left your office on the 15th, after you had made your notes in the office, when you were typing things up and transposing [sic] them, right? A. Correct. Q. And there's the right hand, correct? A. Yes, it is. Q. And you see a notation there to a cut on the right hand, right? A. Yes, there is. Q. You want to point that out? A. There is a small, half of a centimeter, four to five millimeter, fine, linear laceration in the pulp area of that fourth finger. Q. Okay. And you describe that, again, as a paper cut, but you didn't mean to imply it was caused by paper, correct? A. No. Only that it was a very sharp cut with very sharp linear lines. Q. Okay. MR. PETROCELLI: Now, could you, Steve, put the next page up of that exhibit. (Mr. Foster complies.) Q. (BY MR. PETROCELLI) Now, this is intended, Doctor, to be a diagram of the left hand, correct? A. Correct. Q. But accidentally, you gave us another picture of the right hand? A. Right. Q. So, just so the record is clear, this second page does indicate at the top "L hand" meaning left hand? A. Correct. Q. It's supposed to be a sketching of the injuries you saw on the left hand; is that correct? A. That's correct. MR. PETROCELLI: We can take that off. You have the other ones I gave you? MR. LEONARD: I gave them back. MR. PETROCELLI: Okay. (Mr. Foster hands document to Mr. Petrocelli.) MR. PETROCELLI: What's the next one? Going to put these in next. These are the ones on the 17th. All right. THE WITNESS: That's right. MR. PETROCELLI: We'll wait until the Judge is ready. We're going to mark as 2150, the next two pages -- that's the next one in order, correct, 2150? THE CLERK: Yes. (The instrument herein referred to as left and right hand sketches by Robert Huzienga from report of 6/17/95 was marked for identification as Plaintiffs' Exhibit No. 2150.) Q. (BY MR. PETROCELLI) Is Exhibit 2150 a document prepared by you? A. Yes, it is. Q. And Exhibit 2150 consists of two pages sketching the left and right hands, based on your observations on June 17, correct? A. That is correct. MR. PETROCELLI: Your Honor, I move 2150 into evidence. THE COURT: Received. (The instrument previously marked as Plaintiffs' Exhibit 2150 was received in evidence.) Q. (BY MR. PETROCELLI) Now, you made some notations in blue ink on the left-hand sketch, correct? A. That I did. Q. And you did that last night? A. Yes, I did. Q. Just to reorient yourself? A. No. I just wrote out the things that I had put in chicken scratch a little more legible. Q. And this diagram shows -- the three cuts that you have just described previously on the left hand, right? A. Yes, it does. Q. It also shows the seven abrasions, correct? A. Yes, it does. Q. Okay. And the right-hand sketch shows the cut that you just talked to us about on the right hand, right? A. Right. Q. Let me put the left hand up, and you can talk to us about the abrasions. Without going through a description, can you point out on the sketch where the three cuts or lacerations are on the left hand that you previously testified about? A. It's the fourth index -- ring-finger laceration. Here is the distal third-finger laceration. Here is the more proximal third left finger P.I.P. laceration. Q. Okay. And could you point out each of the seven lacerations and briefly describe each one. A. He had a very fine -- this is not a very good demonstration, as you'll see from the picture -- but a very fine, small, linear abrasion over the base of his third finger. He had three dot abrasions, just a tiny, little, flecks over three areas, and he had two other abrasions in the lateral aspect of his left hand. And this circle right here indicates the ulnar styloid which is this bone right here. He had approximately a one-centimeter abrasion right here, and a half-a-centimeter abrasion, a bit proximal for that ulnar styloid. It was slightly irregular borders and relatively superficial, very fine wound, with a little tiny bit of scabbing, but the scabbing covered that area. And he also had a very small, fine scab, indicating an abrasion in the medial -- excuse me the lateral portion of his thumb, distal interphalangeal joint. So something approximately in that location. Q. Okay. Thank you. MR. PETROCELLI: I'll put up some photographs. Let me put up some photographs that we have been talking about. We'll see if it shows up on the Elmo. If not ... hmmmm. Start with this one. (Mr. Foster complies.) Q. (BY MR. PETROCELLI) You recognize the photo? A. Yes. Q. We previously marked these as 714 and 715. These are photos depicting some of the cuts you've told us about. (The instrument herein referred to as photo of cuts to O.J. Simpson's hand was marked for identification as Plaintiffs' Exhibit No. 714.) (The instrument herein referred to as photo of cuts to O.J. Simpson's hand was marked for identification as Plaintiffs' Exhibit No. 715.) Q. (BY MR. PETROCELLI) Why don't you describe in sort of simple terms what that is. A. This is the cut on his left fourth ring finger. That, as you can see, extends from his distal finger joint in a very fine, ratty, irregular fashion. You can see the sawtooth pattern here, and you can see how it was a blow, almost, coming at degrees to the finger here. And you can see this U-shape that I discussed. And it continues on here, although this is difficult to see in the picture, in a very fine area. Then we get to this little area that I said wasn't exactly a laceration, but in fact, a little chunk of skin had been avulsed off. Q. Is that another shot of the same thing? (Photo displayed with finger and ruler.) A. That is essentially the same photo. You can see the continuity here. Q. You want to give us a wider shot first Steve, so we can get the context and then you can zoom it in. (Photo displayed of hands with knuckles of two fingers facing camera with a ruler.) Q. These -- why don't you describe those? A. These are the cuts on the left third finger. First is the cut in the lateral aspect, the side aspect of his third finger. Q. Speak up a little bit, please. A. Okay. Q. This is the laceration, the cut we described of -- described in the third finger, in the lateral, the outside side of the finger that seemed to come at this angle that we discussed. And you can see the flap. The cut comes up and around and you can see the initial part of the healing phase has thickened this little area of skin and made it come up a little bit. And then here's the third cut that we've discussed again, over -- almost directly over his left third proximal interphalangeal joint and coming down in a relatively linear fashion, then taking almost a sharp 60 degree turn here and then a little tiny dissel at the end coming off. And this also you can see from the tissue here, if this had been a straight-on cut, you wouldn't have this amount of tissue swelling here. And you can see that that also is a beveled, angulated laceration. This is a photograph on the 17th, of the lateral aspect of his left hand. And here you can see the light off his ulnar styloid this protubrant bone right here. You can see proximal or closer to the body, upstream. You can see the smaller irregular shaped, tiny little scab that we talked about and down stream or distal. You can see the slightly larger scab that we discussed in that location. (Indicating to photo of a hand with a prominent knuckle and a ruler.) A. And there you can see what I talked about as a dot abrasion. Just a tiny little dot type of scab. Q. So by the time you observed some of these abrasions, they had begun to scab over? A. That is correct. Q. You want to put the next one up, Steve? (Mr. Foster displays photo of hand with knuckle facing down.) THE WITNESS: This is this very fine linear abrasion we discussed. This is the left hand (indicating to his own hand), coming in this direction, the same place as my pointer. And here is what they -- the little tiny dots. Look like -- I believe that's the third dot. I'd have to study that picture but . . . (Indicating to displayed close-up of hand with ruler.) A. This is another picture that includes the very petite linear abrasion and one of the dot hemorrhages, and I believe this is another one of the dot hemorrhages that we were discussing. MR. LEONARD: Can we pull that out a little so we can see? THE WITNESS: You can see that that linear abrasion measured approximately one-half of an inch. MR. LEONARD: Thank you. THE WITNESS: And again 1, 2, 3 is what we were discussing about those tiny little dots with a tiny little piece of scab. MR. PETROCELLI: One more. (Photo displayed dorsal side of hand with thumb and finger visible.) THE WITNESS: Again, I can see the half of the small linear abrasion there and one of the dot hemorrhages. I'm not sure I can see anything else. He had numerous scar and other discolorations from past football injuries and trauma on his hands. Q. (BY MR. PETROCELLI) All the cuts and lacerations and abrasions that you just testified about were not from prior football injuries, correct? A. That is correct. Q. These were things that had been caused recently, correct? A. That -- MR. LEONARD: Objection. Vague. THE COURT: Overruled. THE WITNESS: These injuries had occurred within the last five days at least, five to days to a week. Q. (BY MR. PETROCELLI) Five to seven days? A. Yes. Q. Okay. That's going from the 17th, right? A. I would say that's going from the 15th, 17th. Q. That would include June 12, 1994, correct? A. That would be within five days, that's correct. Q. Okay. Thank you. MR. PETROCELLI: Thank you, Doctor. MR. LEONARD: Can I have one minute? CROSS-EXAMINATION BY MR. LEONARD: Q. (BY MR. LEONARD) Dr. Huizenga, you also took photographs of the rest of Mr. Simpson's body basically; is that right? A. Yes, I did. Q. And you were there when those photographs were taken? A. Yes, I was. Q. And you observed Dr. Baden, Michael Baden examining Mr. Simpson; is that right? A. Yes, I did. Q. Including his hands? A. Yes, I did. Q. Thanks a lot. I don't have any further questions. THE COURT: Okay. Thank you. You're excused. MR. PETROCELLI: We're going to read in some deposition testimony of Detective Kenneth Berris of the Chicago police department, Your Honor. Mr. Callan will play the role of Detective Berris. (Mr. Petrocelli is reading the questions, and Mr. Callan is reading the answers of the witness, Detective Berris.) MR. PETROCELLI: Page 5, line 9. "... (sic) Please state your name. "A. Kenneth Berris. My last name is spelled B-E-R-R-I-S. "Q. What is your occupation? "A. I'm a Detective employed by the Chicago police department in Chicago, Illinois. "Q. Detective Berris, how long have you been a police officer? "A. I've been a police officer for over 27 years and a detective for over 18 years. "Q. In the course of your employment as a police officer and as a detective, have you investigated homicides? "A. Yes, I have. "Q. Approximately how many? "A. Quite a few. "Q. Hundreds? "A. Hundreds. I would say yes. "Q. And were you at some point in time assigned to participate in the investigation of a double homicide involving Nicole Brown Simpson, the ex-wife of O.J. Simpson? "A. Yes. "Q. And when did that occur? "A. It occurred on the morning of Monday, June 13, 1994. "Q. And beginning on June 13, 1994, you participated in that investigation here in Chicago? "A. Yes, sir." MR. PETROCELLI: Okay. Next is page 12, line . MR. LEONARD: Your Honor, I'd ask to approach. MR. PETROCELLI: Excuse me. That was a mistake on my part. Page 19, line 1. We'll start at line 4. (Reading:) "... (sic) Detective Bongiorno and you went to the O'Hare Plaza at around noon? "A. Yes. "Q. And that was in response to a call from the LAPD? "A. Yes. It was a response to a request for assistance in their double homicide investigation." MR. PETROCELLI: Page 21. Line 6. And we'll skip the objections, Your Honor, as to form. We've agreed they're deemed overruled okay as to form only. And when -- MR. LEONARD: Your Honor, may I approach on this? THE COURT: I guess not. MR. PETROCELLI: We'll just ask the -- THE COURT: No. You can approach, but I guess they weren't deemed . . . whatever. (The following proceedings were held at the bench:) MR. LEONARD: Thought you weren't -- I thought we had an agreement, he wasn't going to go into hearsay -- MR. PETROCELLI: I'm not -- MR. LEONARD: -- That elicit hearsay. MR. PETROCELLI: Where? MR. LEONARD: Which one you going to do? MR. PETROCELLI: Page 19, line 1 to page 19, line 10. MR. LEONARD: No, you skipped that, didn't you? That is hearsay. We spoke to general manager blah, blah, blah, blah. MR. PETROCELLI: Did I just do it? MR. LEONARD: No, you didn't. You skipped it. MR. PETROCELLI: No. I read that one. That one wasn't the problem. I just read that one. The next one I indicated was page 21, line 6. MR. LEONARD: It was your understanding that's from hearsay. That part. MR. PETROCELLI: That's his statement. Why don't you read the answer, Your Honor, starting on page 18. THE COURT: Starting at page 18? MR. PETROCELLI: I want to read from page 21, line 6 through page 23, line 4. MR. PETROCELLI: Just background. MR. LEONARD: I don't care. It's hearsay. If you want that in here, I want my hearsay. MR. PETROCELLI: I don't think it's hearsay. MR. LEONARD: That's -- he's responding to a call. THE COURT: He's testifying about that he heard from Phillips that the room -- MR. PETROCELLI: One at time. I can't hear the Judge. I can't hear what the Judge is saying. THE COURT: He's testifying that Phillips said he contacted somebody who said that the room wasn't made up. That's pretty clear hearsay. MR. PETROCELLI: Okay. THE COURT: Double hearsay. MR. PETROCELLI: Okay. Your Honor, take a look at -- I want to cut through this now. Page -- THE COURT: It's hearsay of Phillips and hearsay of somebody who talked to them. MR. PETROCELLI: What about 22, line 11, Your Honor? MR. PETROCELLI: That question and answer. I'm trying to get him into the room. MR. LEONARD: Well, get him into the room. THE COURT: I -- you can get him in the room. MR. PETROCELLI: I can't. This is how he described it. I can't make it up. MR. LEONARD: I'll stipulate he went in -- he went in the room, made observations. THE COURT: I think Mr. Leonard's objecting to the fact that the answer includes the statement that the room was made up. MR. LEONARD: Right. They're just going right to that question. MR. PETROCELLI: Which question? MR. LEONARD: Line 20. Fine. I don't care about that. MR. PETROCELLI: Do you have a problem with 23, line 9? MR. LEONARD: No. MR. PETROCELLI: Okay. Then I'll read that, then I'm going to go to 26, line 18. MR. LEONARD: Not really. I don't know what the relevance is. MR. PETROCELLI: It's just establishing foundation. MR. LEONARD: Okay. MR. PETROCELLI: Then we're going to go to page . That starts his observations. MR. LEONARD: Just -- I thought we had an agreement for hearsay. That's my only problem. MR. PETROCELLI: I'm trying to keep it out. MR. LEONARD: Do a better job, will you? (The following proceedings were resumed in open court in the presence of the jury:) MR. PETROCELLI: We'll pick it up with page 33, line 1 (Reading:) "... (sic) Now, when you went upstairs with Detective Bongiorno, you said you were also accompanied by Detective -- by Joseph DiSalvo of the hotel? "A. No. "Q. Excuse me. By Peter Phillips, the general manager? "A. Yes, sir. "Q. Okay. And describe what happened when you arrived -- was it the 9th floor? "A. Yes. "Q. And you walked to room 915? "A. Yes. "Q. By the way, on the 9th floor, were there any emergency exits? "A. Yes, there are. "Q. The normal passage way to the th floor was the elevator? "A. Elevator. "Q. Were there any emergency exits located -- Excuse me -- where were the emergency exits located? "A. I think at the end of the hallway I believe there is -- there are emergency exit, yes. "Q. And what were those exits? "A. I'm sorry. By means of stairs. "Q. Stairs? "A. Stairs. "Q. And those stairs led outside the hotel? "A. Subsequently at the ground level they would." MR. PETROCELLI: Page 35, line 2 (reading): "... (sic) Why don't you describe to us what you did when you arrived at the door of room 915? "A. Mr. Phillips opened the door for us by means of the card key, and we entered the room or the mini suite of rooms, . Upon entering the room -- "Q. Let me stop you right there." MR. PETROCELLI: I'm going to need an exhibit, Steve. MR. FOSTER: For which one? MR. PETROCELLI: Exhibit 11. Your Honor, after conclusion of reading this in, we'll give you the new exhibit numbers. These exhibits, for the record, refer to the Berris Deposition Exhibit. (Reading:) "... (sic) I'm going to show you a photograph of -- that I've marked as Berris exhibit 11 and can you tell me what that photograph depicts? "A. It's a photograph of the front of O'Hare Plaza hotel showing the hotel's name. "Q. In the photograph that I just showed you as Berris exhibit 11 was taken by whom? "A. Taken by crime lab technicians John Stella and John Naujokas. Stella spells his last name S-T-E-L-L-A. Naujokas spells his name N-A-U-J-O-K-A-S. "Q. And these were photographers working under your direction and control in the course of this investigation? "A. Yes. "Q. Okay." (Continued reading as follows:) "Q. To process the crime scene and take photographs" -- Excuse me. (Continued reading as follows:) "... (sic) can you state what the responsibilities of these photographers were." This is page 36 line 8. "A. To process the crime scene and take photographs of a scene and to collect evidence, things such as that nature. "Q. And what was your role, if any, with regard to that? "A. To direct them as to what should be processed. "Q. And did they take photographs in the course of this investigation? "A. Yes, they did. "Q. These are the photographs that you brought with you today? "A. Yes. "Q. And I will show you now a series of photographs starting with exhibit and these are photographs taken by these two investigators? "A. Yes. "Q. And the first photograph ... (sic) you said is outside of the O'Hare Plaza, right? A. Yes. Q. Okay. Now, the next photograph which will be marked as Berris exhibit 12 is a photograph of what?" (Photo is displayed in courtroom.) (Continued reading as follows:) "Q. The entrance door to room 915 showing the locking mechanism and the room number. "Q. You opened the door? "A. Yes. "Q. And used a card key to get in? "A. Yes, a card key was used. "Q. And you entered? "A. And we entered the room or the mini suite of rooms. "Q. This is a mini suite? "A. Yes. "Q. How many rooms? "A. Two rooms and a bathroom. "Q. Let me show you what has been marked as Berris exhibit 13." (Photo is displayed in courtroom.) "Q. What does that photograph depict? "A. This photograph showing the -- from within the mini suite of rooms and what I would refer to as a living/dining area, the angle of photographs showing the front -- the entrance doors to the unit and also part of the living/dining area. "Q. And this depicts the area once you enter the room? "A. Once you enter the room. "Q. And in this -- in the area depicted by exhibit 13 of the hotel suite, is this an area that you visually examined when you entered? "A. Yes. "Q. And did you know whether there was anything that looked out of place?" (Continued reading as follows:) "A. No, it was quite orderly." MR. PETROCELLI: Line 15, page 38 (reading): "Q. Describe the condition of that part of the room depicted by exhibit 13 when you observed it? "A. Not disturbed, not unkempt, not unmade. It seemed to be in the condition it probably would have been if nobody had ever occupied the room. "Q. And the next exhibit is 14. And can you describe what this photograph depicts?" (Continued reading as follows:) "A. This is another photograph in the living/dining area, this time facing, rather than towards the entrance door, toward the window at the opposite side of the room. "Q. And did you observe the area depicted by that in that photograph, exhibit , when you entered? "A. Yes. "Q. And how did it appear to you? "A. Orderly, as if no one disturbed anything in that area of the room or the mini suite of rooms should I say." MR. PETROCELLI: Now, we're -- Now we're going to go to page 40, line 14. (Continued reading as follows:) "... (sic) Now, you're picking up exhibit 13, and you describe that as what you see when you first enter the mini suite, correct? "A. Yes, it is. "Q. Okay -- And that you describe as what, the dining room area? "A. Yes. "Q. Next is exhibit 15. Can you tell us what exhibit 15 depicts. It is a photograph of course; and what does it depict? "A. It is a photograph of the bedroom of the mini suite of rooms. You went (sic) to the bedroom by walking through a doorway from the dining area. "Q. Were you able to observe the bedroom when you entered it? "A. Yes. "Q. And could you describe the condition that you saw? "A. Yes, I can. "Q. Please do so. "A. The bedroom -- the drapes were drawn closed. The lights were turned off and the bed was unmade, covers tossed back as if someone had slept in the bed. "Q. What about the telephone? "A. The telephone -- there was a telephone on an end table next to the bed in an area that would be between the bed and where the bathroom would be in the unit. "Q. Was the telephone in an area where it appeared it belonged? "A. Yes." (Continued reading as follows:) "Q. Could you tell from the position of the telephone whether it had been used or not? "A. It appeared to be in the location where it should have been in the bedroom." MR. PETROCELLI: Skipping down to 18. (Reading:) "... (sic) And that again is the beginning of the bedroom as you walk in, right? "A. Yes. "Q. And now let me show you the next exhibit in sequence which is exhibit ." (Continued reading as follows:) "... (sic) Anyway what is exhibit 16 that I've placed in front of you, a photograph of what? "A. It's a photograph showing the bed in the bedroom of that mini suite of rooms, showing the covers tossed back, unmade, and also showing the telephone in the bedroom on the end table next to the bed. "Q. Is that the bed -- the scene of the bedroom that you just described? "A. Yes, it is. "Q. And that's how the bedroom appeared to you when you walked into it? "A. Yes, it is. MR. PETROCELLI: And can you read the answer on ? (Continued reading as follows:) "A. Yes, it is, with the exception that the draperies are now opened. They had to be opened to allow lighting for the photographs. That is the only thing that is changed. "Q. When you entered the bedroom, the drapes were closed? "A. The drapes were closed. "Q. Now, were both drapes closed, the inner drape and the outer drape? "A. I believe so, yes. "Q. Were the lights on in the bedroom? "A. No, they were off. "Q. Were the lights off in the other rooms as well? "A. The lights were off in the living/dining area. The lights were off in the bedroom. But the lights were on in the bathroom. "Q. While we're in the bedroom, let me show you the next exhibit in sequence, exhibit 17, Berris exhibit 17, which is a photograph, and tell me what that photograph depicts." (Continued reading as follows:) "... (sic) Again, Detective Berris, identify Berris exhibit 17? "A. Yes this is a photograph of bedding from suite 915. The photograph shows -- bedding with a red stain which I felt was suspect blood when I observed it." MR. PETROCELLI: Your Honor may we dim the lights in the back? (Continued reading as follows:) "... (sic) You saw blood on the bed? "A. Yes." MR. PETROCELLI: Could you read it at 14? (Continued reading as follows:) "A. I refer to it as suspect blood. "Q. You saw a red spot, is that what you're saying? "A. Yes. "Q. And that red spot was located on what? "A. On the bedding. "Q. By bedding, what do you mean? "A. Top sheet and bottom sheet, pillow cases. "Q. And where on the bed in room -- "A. 15. "Q. Excuse me. Where on the bedding in the bedroom of 915 did you see the red spot? "A. In different areas of bedding, primarily the center of the bed but on some pillow cases too. "Q. Did you form an opinion as to what the red spots were? You may answer yes or no? "A. Yes. "Q. And what did you believe the red spots were? "A. My experience, I suspected it to be blood. "Q. And exhibit 17 depicts the bedding that you saw" -- MR. PETROCELLI: That's line 3 on page 47. (Continued reading as follows:) "A. Yes." MR. PETROCELLI: Going to line 12. (Reading:) "... (sic) Let me show you what's been marked as Berris exhibit 18. Can you identify it please? "A. This is another photograph of bedding taken of the bed in room 915, also depicting another spot which after observing it and my experience I suspected it to be blood." MR. PETROCELLI: Line 24. (Reading:) "Now, exhibit 18 is a picture of bedding on the bed from room 915? "A. Yes. "Q. And on that bed there is an object. What is that object? "A. There's also a pen, ball point pen. "Q. Was that pen found on the bed when you saw the room for the first time? "A. Yes. "Q. In the location where it is depicted in the photograph? "A. Yes. "Q. And did you also see on that bed, some red spots? "A. Yes. "Q. The spot you're pointing to when you entered the room, how did it appear to you?" MR. PETROCELLI: Line 6. MR. CALLAN: Are we on the next page? MR. PETROCELLI: Yeah. (Continued reading as follows:) "A. A red spot. "Q. Did you form a belief as to what it was based on your experience? "A. Yes, I did. "Q. And what was your belief?" (Continued reading as follows:) "A. I suspected it to be blood. "Q. And where in the bedding was the blood located? "A. Yes. I'm not sure exactly where it was on the bedding from this photograph right here. "Q. From your recollection of seeing the scene when you entered the bedroom, where on the bed did you see what you have testified to be red spots that in your belief were blood? "A. Toward the center of the bed rather than the head or the foot. "Q. Thank you." MR. PETROCELLI: Your Honor, this would be a good time. THE COURT: Ten minute recess, ladies and gentlemen. Don't talk about the case. Don't form or express any opinion. (Recess.) (Jurors resume their respective seats.) (The following proceedings were held in open court, in the presence of the jury.) MR. PETROCELLI: Okay. Your Honor, the bad news is, we have a bit more to read. The good news is, we will not be reading depositions for a while. THE COURT: Good. MR. PETROCELLI: Okay? MR. CALLAN: I don't take that personally, Mr. Petrocelli. (Laughter.) MR. PETROCELLI: No, you're doing a fine job. Page 50. (Continued reading as follows:) "Q. The next photograph I will show you, we will mark as Berris Exhibit 19, and could you identify Berris Exhibit 19 for us? "A. Yes. This is a photograph of the bathroom in Room 915. "Q. And does that photograph depict the bathroom as you saw it when you entered it? "A. Yes. "Q. The light was on you said? "A. Yes, the light was on. "Q. And can you generally describe the appearance of the bathroom when you entered it?" (Continued reading as follows:) "A. The bathroom -- The condition of the bathroom was that it had been used more than made up and awaiting the use by a guest. It appeared to have been used by somebody. "Q. On what did you base your conclusion that the bathroom had been used? "A. Well, there was an unmade towel on the vanity top. There was a broken drinking glass in the wash basin of the sink. There were chips of glass on both sides of the wash basin. There was paper -- torn-up paper in the wastebasket and papers on the floor. "Q. There were papers on the floor in the bathroom? "A. Yes. "Q. What was in the wastepaper basket in the bathroom? "A. There was a torn-up piece of green paper, torn up into about eight pieces. "Q. Was there anything else in there? "A. No. "Q. Was there any glass in there? "A. No. "Q. Was there anything else in any of the other wastepaper baskets throughout the room? "A. No. "Q. Throughout the mini suite? "A. No." MR. PETROCELLI: Turning to page 52, line 8: (Reading:) "Q. Was there broken glass located anywhere else in the suite of rooms other than the sink in the bathroom and on the vanity in the bathroom? "A. There was no other place in the room or in the mini suite of rooms was there any broken glass or chips or fragments of broken glass. "Q. Was there a telephone in the bathroom? "A. No. "Q. Were there any glasses on the vanity in the bathroom or elsewhere in the bathroom that were not broken? "A. No, there were not." MR. PETROCELLI: Okay. Going to page 53, the witness is pointing. (Reading:) "Q. And can you point to where the towels were on the vanity that you said looked used?" MR. PETROCELLI: Line 14, page 53. MR. CALLAN: Right. MR. PETROCELLI: And going down to line 23. (Reading:) "Q. Okay. And the other towels were where? "A. Well, they're here in the -- what I would consider their normal place. "Q. Did they appear to be used? "A. No. They appeared to be fresh. "Q. And the glass, broken glass was where? "A. The broken drinking glass for the most part was in the wash basin here, including a white doily cover. There were chips on both sides of the wash basin so far down as to here. "Q. Now, could you describe all the other items on the vanity? "A. An ashtray. "Q. Yes. "A. A basket, I believe, that had soap and some type of toiletries like -- such as that, the unmade towel. "Q. The towels that had been used? "A. Right. "Q. What's in front of that basket? "A. There was one towel. "Q. Is that a bar of soap? "A. That's a bar of soap, still in the wrapper by its appearance. A coffee maker, which had not been used, several cups for coffee, and different things that you would use for coffee. "Q. Had the coffee cups been used? "A. No." (Continued reading as follows:) "Q. Could you tell from the appearance of the coffee cups and condiments whether or not they had been used? "A. No, they did not appear to be used. "Q. Now, the picture of the vanity as you're now displaying it to the camera, is that exactly how the vanity appeared when you entered the bathroom? "A. Yes. "Q. And all the items that appear on that vanity were in that exact location? "A. Yes. "Q. As depicted in the photograph that you're holding? "A. Yes. "Q. And there are some flowers behind the coffee pot? "A. Yes. "Q. And those were there as well? "A. Yes, they were. "Q. Did you have an opportunity to look into the shower? "A. Yes. "Q. And what did you see?" (Continued reading as follows:) "A. The shower appeared not to have been used. It was dry, and the shower curtain was dry. "Q. Was there any glass in the shower? "A. No glass in the shower. "Q. Did you see any blood in the shower?" (Continued reading as follows:) "A. No blood was observed in the shower. "Q. Did you observe anything in the shower? "A. Nothing. "Q. Did you see any water? "A. No." (Continued reading as follows:) "Q. I place in front of you a photograph marked as Berris Exhibit 20. Can you please identify that photograph?" (Continued reading as follows:) "A. Yes. This is a photograph of another angle of the bathroom in the mini suite of rooms, 915, O'Hare Plaza Hotel. "Q. And that's another photograph depicting the vanity and the toilet in the bathroom? "A. Yes, it is. "Q. And again, the items depicted on the vanity are in the same place as when you came in the bathroom? "A. Yes, they are." MR. PETROCELLI: Next page, Steve. (Reading:) Q. "What is Berris Exhibit 21?" "A. This is a photograph of the wash basin, vanity, and the wastebasket in the bathroom of 915. Also shows a -- some paper thrown on the floor -- on the floor, I'll put it that way, in the bathroom. "Q. And it shows a little more close-up of the glass in the sink? "A. Yes, it does. "Q. Now, is there anything else in the sink besides the glass? "A. There's a white cover. I call it a white doily cover. Oftentimes you see them on drinking glasses in the hotel rooms, sort of shows that they're not -- they're fresh, they haven't been used. "Q. And You found the white doily in the sink? "A. Yes. Along with the broken glass and pieces of glass. "Q. Did you notice any blood or red spots that you thought might be blood in the sink?" (Continued reading as follows:) "A. None. "Q. Did you notice any red spots at all in the sink?" (Continued reading as follows:) "A. None. "Q. Did you notice any red spots in the toilet? "A. None whatsoever. "Q. What about in the wastepaper basket?" (Continued reading as follows:) "A. None whatsoever. "Q. Did you notice any red spots on any of the pieces of glass in the sink? "A. None at all. "Q. Was there any glass found anyplace else other than in the sink? "A. There were small chips of glass found along the vanity on both the right and left sides of the wash basin, very small chips. "Q. Did you at some point in time pick up each of the pieces or chips of glass? "A. I examined them. "Q. Each of them? "A. Yes. "Q. What was your purpose in examining them? "A. To see if they had any red substance that I might feel could be blood. "Q. What did you conclude after examining each piece of glass, or chips of glass?" (Continued reading as follows:) "A. I found none, nothing that appeared to be blood on any of these chips." MR. PETROCELLI:. Next. (Reading:) "Q. Let me show you the next photograph, which has been marked as Berris Exhibit number 22, and could you tell us what that photograph depicts? "A. This is a -- still another photograph of the vanity and the wash basin. On top of the vanity is a towel that appears wrinkled and having been used. It's to the right of the wash basin." (Continued reading as follows:) "Q. Did you find chips of glass? "A. Oh, yes. "Q. Where? "A. On top of the vanity." MR. PETROCELLI: Moving over to page 63: (Reading:) Q. "What I want to make clear is, I'm asking you, did you find chips of glass? "A. Oh, yes, I did. "Q. Where did you find them? (Continued reading as follows:) "A. On both sides of the wash basin. The exact spots, I can't recall right now. But I remember they were on -- I point them out because you certainly can't see them in this photograph, but they were on each side of the wash basin. I remember they were -- there were some down as far as -- down this far on the vanity (indicating)." MR. PETROCELLI: Line 24. And line 22. (Reading:) "Q. And where are you pointing on the other end of the vanity, just so the record is clear? "A. Would be to -- would be the left, would be approximately in the vicinity of the coffee maker." (Continued reading as follows:) "Q. How many chips of glass did you find on the vanity? "A. Total number, I can't recall. There were several. The exact number, I really don't remember. "Q. In the locations that you just described?" (Continued reading as follows:) "A. On each side of the wash basin along the vanity." (Continued reading as follows:) "Q. Let me show you the next exhibit, which is Berris Exhibit 23, and can you please identify this exhibit?" MR. PETROCELLI: Over to page 66. (Reading:) "Q. What does Exhibit 23 depict? "A. That is a photograph of the wash basin, of the sink close-up, showing the broken drinking glass, white cover; and off in the upper right-hand corner, you can see a -- partially see the face towel that was on top of the vanity to the right of the wash basin. "Q. Does that photograph depict the condition of the basin when you observed it? "A. Yes. "Q. So the broken glass that is depicted in the photograph was in the same condition when you observed it? "A. Yes." (Continued reading as follows:) "Q. Let me show you Berris Exhibit . Can you identify that Exhibit?" (Continued reading as follows:) "A. This -- "Q. What is it? "A. This is a photograph of a wash cloth that was found underneath the hand towel. Did I call it a face towel before? But the towel that was to the right of the wash basin. This wash cloth was found underneath that towel after the photographs had been taken by the Crime Lab Technicians Stella and Naujokas processing the scene. "It originally couldn't be seen because the towel had been on top of it. And this being underneath it, we didn't move anything until after it was photographed to show things in their original condition. After the photographs were taken with the towel, the towel was picked up by the technicians and they discovered this face -- this wash cloth with a red stain on it, which I suspected to be blood. "Also you can see one of the glass chips here." MR. PETROCELLI: Okay. Page 68. Can you read the answer on page 68, line . MR. CALLAN: 68 line 6. (Reading:) "A. Here's one of the chips here. That chip would have been hidden from view by the towel. That's why you couldn't see it before. "At any rate, this red stain here that you can see on the washcloth was suspect blood. "Q. You observed that washcloth with the red stain on it and the chip, once the towel was removed? "A. Yes, after it was removed. "Q. And that's when that photograph was taken? "A. That's when this photograph was taken. The others were taken before. Now we discovered something new, so we took a photograph of this so that it would be a matter of record. MR. PETROCELLI: Go to page 69, Steve. (Reading:) "Q. Please identify Berris Exhibit number 25. MR. CALLAN: Geez, I'm sorry. Excuse me, Mr. Leonard. MR. LEONARD: On the okay I think that was inadvertent. MR. PETROCELLI: Yeah, that was. MR. LEONARD: But your apology is accepted. MR. CALLAN: Thank you. MR. PETROCELLI: He was apologizing to me. Can you read the answer on line 13? (Reading:) "A. This is another copy of the photograph of the washcloth which was shown in Exhibit 24, showing the red stain which I suspected to be blood at the time. "And also the glass chip, with a bit of difficulty, can be seen here in the photograph." (Continued reading as follows:) "Q. The next Exhibit is Berris Exhibit 26. What is it?" (Continued reading as follows:) "A. That's a photograph of the wastebasket in the same bathroom, with pieces of torn-up green paper in the wastebasket. On the floor next to the wastebasket are some other papers that were found there. "Q. And those green pieces of paper that are in the wastepaper basket were in that condition in that location when you observed that? "A. Yes. "Q. Did you at any point in time take those pieces of paper out? "A. Yes. "Q. Were you able to observe what was written on them, if anything? "A. There was a -- the words -- as best I could piece them together, the words 'Joe,' and I thought, 'Cocowitz' with a telephone number and the word 'work' on it. But that was the best as I could piece it together at the time. "Q. And the pieces of paper on the floor next to the waste-paper basket, did you pick them up? "A. Yes. "Q. And did you observe what they were? "A. One was a -- The card key of the -- a card key holder with the signature on it resembling that of Mr. Simpson's registration card, O.J. Simpson, and the number, room 915. "Another one had to do with an advertisement for, I think, a restaurant in the hotel. Something to do with pizza or something like that." MR. PETROCELLI: And line 19: (Reading:) "Q. Were their" [sic] "any closets in this mini suite? "A. Closets, not closed, opened-type closets that you could -- I think there were two areas that might be considered open closet areas where you could hang clothes but they weren't with a door to be locked. "Q. Did you look into those closets? "A. Oh, yes. "Q. What did you observe? "A. I observed that there were no laundry bags. "Q. What else did you observe? Were there any hangers in the closet? "A. Yes. "Q. Were there any hangers on the floor? "A. No." "Q. Were there any hangers found elsewhere in the mini suite other than in the closet? "A. No. "Q. Were the hangers in the closet hanging on the bar? "A. Yes. "Q. By looking in the closet, could you form an opinion as to whether or not they had been used? MR. LEONARD: May we approach? MR. PETROCELLI: I'll withdraw the question. Skipping over to page 74, line 19. Did you find any laundry bags anywhere in room 915? (Continued reading as follows:) "A. No, none were found. MR. PETROCELLI: Page 78. (Reading.) "Did you find any" -- excuse me. Line 17. "Did you find any broken pieces or shards of glass or chips of glass on the floor in the bathroom? "A. No. "Q. And you found no broken glass anywhere else in this suite of rooms, right?" Page 79. "Is that correct? "A. Nowhere else in the entire mini suite, other than on the vanity and in the wash basin. "Q. Did you find anything else in the mini suite of rooms that was broken? "A. No. "Q. Do you know what I mean by broken? "A. Yes. "Q. Like something else that had been ripped apart or torn apart or broken? "A. Nothing at all. "Q. Okay." MR. PETROCELLI: Page 104. Depo Exhibit 22, Steve. (Mr. Foster displays Depo Exhibit 22.) "Q. Could you look at the photograph of the basin? Let's pick one. Let's look at -- Exhibit 22 is from a stain on the basin? "A. Yes, on the top. "Q. Yes? "A. Yes, there is. "Q. And did you form an opinion as to what that was? "A. There's a stain right here at the top of the basin. On the side, right-hand side, that appeared to be a stain that would have been made by possibly someone at some time, having laid a lit cigarette there and the nicotine staining the porcelain on the sink top. "Q. Did you form an opinion as to whether or not that stain was consistent with blood? "A. It was examined. It didn't appear to be. "Q. It did not appear to be what? "A. Blood. "Q. Was there any furniture overturned over? "A. No. "Q. Was the furniture found in a neat and orderly condition? "A. Yes. "Q. The blood stains you saw on the sheets, were they located toward the middle, center of the bed? "A. Yes. They appear to be more centered than at the foot" -- MR. PETROCELLI: I'm sorry. Let me read that answer again. (Reading:) "A. Yes. They appeared to be more centered than at the head or foot." MR. PETROCELLI: Page 107 line 11. (Reading:) "Q. Did you find any blood stains, blood-stained tissues inside the room? "A. None. "Q. Did you find any blood-stained toilet paper at all? "A. None. "Q. Did you find any blood drops on the bathroom floor? "A. None. "Q. Did you find any drops of blood around the wash basin or the vanity? "A. None. "Q. Did you find any drops of blood on the carpet? "A. None. "Q. Or next to the bed? "A. None. "Q. Or on the telephone? "A. None. "Q. Or on the counter where the telephone sits on the bed side table I should say? "A. None." MR. PETROCELLI: That's it, Your Honor. (Mr. Leonard is reading the questions and Mr. Callan is reading the answers of the witness.) CROSS-EXAMINATION BY MR. LEONARD: MR. LEONARD: Detective Berris. MR. CALLAN: Good morning, Mr. Leonard. MR. LEONARD: A little thinner on the top than last we met. Okay. If we turn to 110, line 14. (Reading:) "Q. Let me ask you first of all when you -- did you receive the initial call from LAPD to assist in the investigation of Nicole Brown Simpson and Goldman murders? "A. I personally did not. "Q. At some point, shortly after the call was received, you were assigned to take the lead from the Chicago end; is that fair to say? "A. Yes, I was assigned with Detective Anthony Bojoirno for us together to go to O'Hare Plaza hotel. "Q. And you were attempting to do as thorough a job as you could in the task that you undertook in the investigation, correct? "A. Yes. "Q. And to some extent you were directed by the LAPD, is that fair to say?" MR. LEONARD: Down to "question is read again." It's repeated. Over to 112, line 15. You with me? (Continued reading as follows:) "Q. Were you, to some extent, directed in what you were supposed to do by the LAPD? "A. We were requested to go to that location and to investigate Mr. Simpson's presence there with respect to their investigation. To collect any possible evidence and interview people who might have spoken with -- concerning his presence there. "Q. And do you feel that you and your colleagues did a thorough and accurate, and a good job in doing that? "A. Yes, sir. "Q. You mentioned earlier that you -- you mentioned earlier that the room was processed? "A. Yes, it was. "Q. 915, this suite, I should say? "A. Yes, it was. "Q. You have described in Mr. Petrocelli's direct examination of you, everything that was done in what you called the processing of the room. "A. As best I can recollect with what was said, with what I said over that period of time in his questioning, yes, I think that covers everything. "Q. You were there initially for about 20 minutes, correct? "A. Initially to visually observe the interior of that room or the rooms. "Q. And thereafter, you went someplace else and you came back with some criminalist, correct? "A. Yes. "Q. Again, in your direct examination, have you described everything that the criminalist did at the scene? "A. As best I can recollect, I think I covered everything. "Q. Well, you just testified, what, for about two hours just before I started questioning, right? "A. Right. Yes. "Q. And you have a pretty good memory of what you testified to? "A. Yes. Generally I think we covered just about everything I can think of. "Q. All righty. MR. LEONARD: Okay. Over to 11, line 1. (Continued reading as follows:) "... By the way, I notice you're lifting your glasses. Do you have any trouble with your eyesight of any kind? "A. I wear glasses. These are bifocals. Sometimes I just want to make sure I'm looking at the picture correctly. "Q. Just so in all fairness to everyone involved, you've been asked to look at a lot of photographs throughout the deposition? "A. Yes. "Q. Have you had any difficulty seeing any of these photographs? "A. No, I don't, none at all. "Q. And just explain, why did you lift up the glasses like that? "A. Sometimes I do that and sometime I don't. You know, I just -- I could look at it this way out of the bifocals." MR. LEONARD: Okay. Skipping over to 122, line and I've asked for some answer assistance from Mr. Baker at this point. You ready? (Reading:) "Q. The photograph which has been marked as Exhibit 16, that represents a, more or less, full shot photographic shot of the bed from the bottom end of the bed. Is that fair to say? "A. Yes. "Q. And you've testified earlier that that was the condition that the bed was in when you first entered the room, correct? "A. Yes. "Q. And is it fair to say that the best you're able to tell us today with regard to these red spots that you noticed, was that they were somewhere in the middle and they weren't close to the head board. Is that fair to say? "A. Yes. "Q. That is fair to say, correct? "A. Yes. "Q. Now, let me make sure the question is clear, I'm directing your -- I'm asking you to focus on the location on the bed, not at this point on which sheet or on which pillow case or anything like that, but the location of the spots on the bed. Are you following me?" "A. Yes. "Q. You're best recollection today is that these spots were somewhere in the middle of the bed. Not down at one end and not close to the head board; is that correct? "A. Yes, for the most part they're toward the center of the bed and not at the boot or the head. Although there were some spots on that pillow case or cases -- excuse me. But for the most part, they were centered toward the center of the bed more than at the end. "Q. I think you testified earlier that there were spots on the bottom sheet and the top sheet? "A. Yes. "Q. Okay. Did you make any effort to specifically identify where those spots were or did you ask anyone else to do that by using any kind of diagram or anything like that? "A. No. That was not done. "Q. For instance, you were shown an Exhibit earlier that you called a blot or plaque? "A. Yes. "Q. I would call it a diagram -- "A. Diagram. "Q. -- Of the suite, correct? "A. Yes. "Q. You did not create any such diagram of the bed to show where the various spots were; is that correct? "A. No. That was not done. "Q. You didn't ask anyone to do that? "A. No. "Q. Did you make any other, other than to have the spots photographed and other than your visual observations of the spots, do you follow me so far? Did you make any other effort of any kind to try to document where the spots were? "A. No. Just the descriptions as they were made in the reports. "Q. That's it? "A. That's it. "Q. And now those sheets were ultimately transferred to the LAPD? "A. Yes. "Q. What about the pillow cases?" MR. LEONARD: Down to 20 on page -- (Continued reading as follows:) "A. All bedding, the bedding which would include the top and bottom sheets and the pillow cases were ultimately transported to Los Angeles by the Los Angeles Police Department. "Q. Okay." MR. LEONARD: Over to 128, line 18. (Reading:). "Now, directing your attention to the portion of the bottom of the glass that's in the basin. Do you see that?" Could we have 22 up, please? Mr. Foster, can you do that for me? MR. FOSTER: Yes. MR. LEONARD: Hold on. Line 22, page 128. Okay. Let me read the question again. (Reading:) "Now directing your attentioon to the portion of the bottom of glass that's in the basin, do you see that? "A. Yes. "Q. Do you recall, when you saw that portion of the bottom of the glass, that there was a milky colored liquid in it? Do you recall that? "A. There was a small amount of what I described in the criminal trial as a clouded liquid or, by your description, milky colored liquid. That would be a fair description. Very small amount, though. "Q. What, if any, observations did you make with regard to the bottom of that glass when you saw it in the basin? "A. It was broken. "Q. Anything else with reference to whether it -- whether or not it had any type of liquid in it? Did you make any observations? "A. It had this clouded liquid, a very small amount of that in there, just very small. "Q. And what was the -- what was -- and what color was the liquid? "A. Clouded, whitish liquid, not clear. "Q. Would it, would you agree that that would -- that that liquid would be consistent with the residue of water and tooth paste? Would you agree with that? "A. It could have been. It could have been. "Q. Do you know if that liquid was ever analyzed? "A. It was not analyzed." MR. LEONARD: Over to 131, page 14. (Reading:) "Are you aware of any attempts by your police department to do any kind of analysis of the sink traps or the toilet or anything like that to determine whether there was the presence of blood in that room?" "A. That was not done. "Q. Was there any, your familiar with luminol. Do you know what luminol is? "A. No I don't think so. "Q. You do not? "A. Can't recall. "Q. Okay. Would it refresh your recollection if I suggested to you that luminol is a chemical that can be spread to detect the presence of blood that is not detectable to the human eye? Have you ever heard of that before? "A. No, I can't say that I have." THE COURT: It probably be easier on our reporter if you -- MR. LEONARD: Slow down. THE COURT: -- Slow down just a touch. MR. LEONARD: Let me read that last one. (Reading:) "Would it refresh your recollection if I suggested to you that luminol is a chemical that can be spread to detect the presence of blood that's not detectable by the human eye? "Have you ever heard of that before? "A. No, I can't say that I had. "Q. Are you aware of any techniques that are available to detect the presence of human blood such as that, in other words, chemical or otherwise, that is not discernible by the human eye? "A. Not offhand, no. "Q. And to your knowledge, no such analysis was undertaken of any portion of room 915; is that correct? "A. Not such as that, no. "Q. And in fact, the only analysis or examination for blood that was done was simple observation, correct? Isn't that right? "A. Observation to detect such -- any kind of suspect blood which would be subsequently transported to the crime lab for analysis as such. "Q. So the answer is the only technique that was used was? "A. Visual. "Q. Visual observation? "A. Yes. MR. LEONARD: I don't have any further questions. MR. PETROCELLI: Your Honor, a few more questions. (Reading:) "Q. Detective Berris, do you recall there -- you recall a witness in the criminal trial by the defense" -- MR. CALLAN: What page are you on? MR. PETROCELLI: Page 133, line 17. (Reading:) "Q. You were called as a witness in the criminal trial by the defense? "A. Yes. "Q. By O.J. Simpson's lawyers? "A. Yes. "Q. And analysis an testing of items of evidence, was that beyond your scope of responsibility? "A. Yes, it is." MR. PETROCELLI: Thank you. MR. LEONARD: Nothing else. THE COURT: Okay. MR. PETROCELLI: Your Honor, at this point in time I'd like to move into evidence the various photographs which I will now read off for the record if I may, please. Berris depo Exhibit 11 is Exhibit 2151; berris depo, Exhibit 12, 2152; Berris depo, Exhibit 13, 2153; Berris deposition Exhibit 14, 2154; Berris deposition Exhibit 15, 2155. (The instrument herein referred to as Berris Deposition Exhibit No. 11 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2151.) (The instrument herein referred to as Berris deposition exhibit No. 12 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2152.) (The instrument herein referred to as Berris Deposition Exhibit 13 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2153.) (The instrument herein referred to as Berris Deposition Exhibit 14 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2154.) (The instrument herein referred to as Berris Deposition Exhibit 15 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2155.) MR. PETROCELLI: Berris depo, Exhibit 16 is already premarked as 1319; Berris depo Exhibit 17, premarked as 1318; Berris depo Exhibit 18, premarked as Exhibit 1317. (The instrument herein referred to as Berris Deposition Exhibit No. 16 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 1319.) (The instrument herein referred to as Berris Deposition Exhibit No. 17 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 1318.) (The instrument herein referred to as Berris Deposition Exhibit No. 18 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 1317.) MR. PETROCELLI: Berris depo Exhibit 19, 2156. Berris depo Exhibit 20 is Exhibit 2157. Berris depo Exhibit 21, is Exhibit 2158. Berris depo Exhibit 22, is premarked as Exhibit 1315. Berris depo Exhibit 23 is premarked as Exhibit 1316. Berris depo Exhibit 24 is premarked as Exhibit 1313. Berris depo Exhibit 26 is Exhibit 2159. Berris -- that's the last one, 2159 and I would move all these items into evidence. THE COURT: Okay. They're received. (The instrument herein referred to as Berris Deposition Exhibit Number 19 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2156.) (The instrument herein referred to as Berris Deposition Exhibit Number 20 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2157.) (The instrument herein referred to as Berris Deposition Exhibit Number 21 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2158.) (The instrument herein referred to as Berris Deposition Exhibit Number 22 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 1315.) (The instrument herein referred to as Berris Deposition Exhibit Number 23 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 1316.) (The instrument herein referred to as Berris Deposition Exhibit Number 24 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 1313.) (The instrument herein referred to as Berris deposition Exhibit Number 26 was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2159.) MR. PETROCELLI: That concludes the presentation of evidence. THE COURT: Was there a Berris 25? MR. PETROCELLI: That was the same as Berris . And that would preclude the evidence from today and we have our hearing. THE COURT: Okay. Ladies and gentlemen, we will excuse you until tomorrow at 9 O'clock. Don't talk the about the case. Don't form or express any opinions. We're going to not be vacationing, but we will be conducting some matters that don't concern you immediately. But there's no need for you to be around the Court house today so you will be excused. Let me again remind you not to read anything about this case, not watch anything on television or listen to anything on the radio. Don't let anybody talk to you or approach you about anything connected with this case or yourselves as service or as jurors on this case. Don't talk to one another either about this case. All right. And don't form or express any opinions until this case is finally submitted to you. See you tomorrow: Jurors exit courtroom. MR. PETROCELLI: Can we take a short break? THE COURT: Jurors are gone. Who's Werner Spitz on this list? MR. PETROCELLI: Excuse me. THE COURT: Warner Spitz. MR. PETROCELLI: Tomorrow morning, first thing. He's a pathologist. THE COURT: And you got another list for us? MR. PETROCELLI: I've given Mr. Baker two weeks worth of witnesses. I'm filling out your list now. THE COURT: Okay. Great. MR. BAKER: Are they the same? (Laughter.) THE COURT: All right. So at 1:30 we'll resume with the motions; is that right? MR. PETROCELLI: Sure. MR. BLASIER: Your Honor, I advised are even that one of the motions as that we want to exclude autopsy photographs and mannequins. I asked Mr. Medvene to have those over here this afternoon so we can handle that this afternoon. THE COURT: All right. Fine. MR. PETROCELLI: No problem. THE COURT: See you at 1:30. (At 10:54 A.M., a recess was taken until Thursday, October 7, 1996 at 1:30 P.M. of the same day.) SANTA MONICA, CALIFORNIA THURSDAY, NOVEMBER 7, 1996 2:05 P.M. DEPARTMENT NO. WEQ HON. HIROSHI FUJISAKI, JUDGE (REGINA D. CHAVEZ, OFFICIAL REPORTER) (The following proceedings were held in open court, outside the presence of the jury.) THE COURT: This is a 402 motion. Plaintiff, go ahead. MR. GELBLUM: Your Honor, thank you. We'd like to start with the issue of the admissibility of the testimony of Dr. Park Dietz. And before I call Dr. Dietz to the stand, we did submit a brief this morning on this issue of the admissibility, and particularly on the applicability of the Kelly Frye testimony. We think that under the People v. Stoll case, which is a California Supreme Court case, very recent chronologically, the Kelly Frye test is not even applicable to this testimony because -- for two reasons: It's not new to psychology, as you will hear from Dr. Dietz; And secondly, it is not even conceivable for this testimony to be considered in the words of Stoll, misleading of a scientific infallibility. It will be clear that it's Dr. Dietz' testimony, his personal opinion based on his expertise, there's no way the jury can say, oh, that must be the answer; we'll have to go with that under Stoll. That means Kelly Frye doesn't apply. We would like to proceed with the testimony subject to your ruling. THE COURT: Do you want to make an opening statement, too? MR. LEONARD: No. THE COURT: Okay. MR. GELBLUM: We call Dr. Park Dietz. THE CLERK: Sir, if you would, step up behind the court reporter. Please raise your right hand to be sworn. PARK DIETZ was called as a witness on behalf of the Plaintiffs, was duly sworn, and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth so help you God? THE WITNESS: I do. THE CLERK: Please be seated. MR. GELBLUM: Afternoon, Doctor. THE CLERK: Doctor, would you state and spell your name for the record. THE WITNESS: My first name is Park, P-A-R-K, middle name Elliott, E-L-L-I-O-T-T, surname Dietz, D-I-E-T-Z. MR. GELBLUM: Hello again. DIRECT EXAMINATION BY MR. GELBLUM: Q. Dr. Dietz, what is your current occupation? A. I'm a physician, specializing in psychiatry; and for some years, my practice has been limited to the subspecialty of forensic psychiatry. Q. Okay. Can you briefly tell the Court what your education is, your higher education? A. I received my bachelor's degree in psychology and biology from Cornell University in . I received my medical degree and M.D. from Johns Hopkins University School of Medicine in . In the same year, I received a master's degree in public health, also from Johns Hopkins. And upon completing a dissertation some years later, in 1984, I received a Ph.D. in psychology, also from Johns Hopkins. Q. And have you had any training in the area of forensic psychiatry, Doctor? A. Yes, I did. Originally, as part of my residency training in psychiatry, I spent two years as an assistant resident in psychiatry at Johns Hopkins Hospital in Baltimore, and then spent my third year of residency as the chief fellow in forensic psychiatry and resident in psychiatry at the hospital of the University of Pennsylvania in Philadelphia. MR. LEONARD: Your Honor, stipulate as to his qualifications as a forensic psychiatrist. MR. GELBLUM: I'd like to go through a little bit more, Your Honor. THE COURT: Go ahead. Q. (BY MR. GELBLUM) Dr. Dietz, can you tell us some of the positions you've held that are particularly applicable to the testimony here? A. I spent four years as assistant professor of psychiatry at the Harvard Medical School. And my first assignment was as the director of forensic psychiatry for the hospital for the criminally insane, where I was responsible for the pretrial evaluations of the more serious criminal defendants thought to have mental disorders, for the trial courts of Massachusetts. Then I spent my third year at Harvard evaluating John Hinkley on behalf of the U.S. Attorney's office in connection with charges arising from the attempted assassination of President Reagan. Then I spent a year studying mentally disordered offenders. My next position was at the University of Virginia, where I was originally an associate professor, and later professor of law and professor of behavioral medicine in psychiatry. And I was medical director of the Institute of Law Psychiatry and Public Policy at the University of Virginia. I taught half-time at a law school, teaching courses in law and psychiatry, criminal behavior, crimes of violence, and related fields; and half of my time, I spent directing the fellowship training program in forensic psychiatry and bringing the forensic psychiatry clinic to the university. During those years, I also began an active association -- or actually, rather, continued an association with the FBI Academy in Quantico, Virginia. That had begun in the late 1970s and was formalized in 1981. And I have, for the years since then, been the psychiatrist for the unit that's gone under a variety of names. Today it's called the profiling unit. It had been the behavioral sciences unit. It is part of the National Center for the Analysis of Violent Crime. And in 1988, I moved to southern California. Today, I am clinical professor of psychiatry and biobehavioral sciences at U.C.L.A. And I divide my time between a forensic psychiatry practice which occupies half my time, which is actually a group of -- a number of consultants and another activity, which is called threat assessment group. And that's a firm which provides consultation to employers for the prevention of workplace violence. We also do some work for governmental agencies. It's preventative work for preventing people from getting hurt. Q. Did you bring a copy of your curriculum vitae with you? A. Yes. MR. GELBLUM: Your Honor, I submit that to the Court for his review and shortcut the recitation. THE COURT: I thought he gave it. MR. GELBLUM: It's just the first couple pages. MR. LEONARD: No. A lot more. MR. GELBLUM: Would you like to mark it as an exhibit? THE COURT: Whatever way you want to do it. MR. GELBLUM: Shall we? THE COURT: It's your witness. MR. GELBLUM: Next in order? THE CLERK: No; this is plaintiff. Can we mark it Plaintiffs' Exhibit 1 for this hearing. (The instrument herein referred to as Curriculum Vitae of Dr. Park Dietz was marked for identification as Plaintiffs' Exhibit No. 1 to this 402 hearing.) Q. (BY MR. GELBLUM) Dr. Dietz, let me show you, so we can get this authenticated, what we can mark as Plaintiffs' Exhibit 1 for this hearing. Is that a copy of your curriculum vitae? A. Yes, it is. Q. And is this up to date? A. It's up to date as of the date on it, which is October of 1995. So actually, it's a year old now. Q. And does it contain your major publications and research and editorial boards you've sat on? A. Yes. Q. Doctor, do you have experience in the field of a crime-scene analysis? A. Yes, I do. Q. And tell us a little bit about what that field is, crime-scene analysis. A. Well, crime-scene analysis, of course, is the effort to learn information from the study of a crime scene. And because that's the nature of what the field is; it's an activity primarily of criminal investigators. It's in the routine order of business for homicide detectives, and has also been, for many years, indeed, centuries, some physicians, coroners, who include nonphysicians, have always been involved in crime-scene analysis; and forensic pathologists have more systematically developed the medical aspects of crime-scene investigation over the decades. Forensic psychiatry is rather a latecomer to the systematic analysis of crime scenes. But that activity of learning from a crime scene what it has to tell is not specific to medicine or to law enforcement, but rather, bridges both, and indeed, other fields. There are other analysts who go to crime scenes and seek to learn from them. Q. Okay. And tell us a little bit about your experience in crime-scene analysis. A. My experience actually began while I was still a medical student. I had a laboratory at the medical examiner's office in Baltimore and began to go out to crime scenes with the investigators for the ME's office. I continued to work with medical examiner's office in Philadelphia, when I moved there. And so I had already been interested in how much one could learn from crime scenes and from autopsies, about the manner of an offense and about the behavior of the offender, even before I was formally in forensic psychiatry. Q. Did you have any experience with crime-scene analysis at the FBI Academy? A. Yes, beginning in 1979. Q. How long? A. I was done with my training. Q. I'm sorry; how long were you there at the FBI Academy? A. I've gone intermittently ever since 1979. Q. And have you had experience with crime-scene analysis with other law enforcement agencies? A. Yes. I'm the forensic psychiatrist for the New York State Police, and I have regular involvement both through the FBI and New York State Police. Many other agencies, possibly scores, have, over the years, consulted me on one case at a time, though I have no ongoing relationship with them. Q. In your current work as the president of the Threat Assessment Group, do you get involved in crime-scene analysis? A. We get involved in the analysis of many unsolved crimes; they don't always involve what ought to be regarded as a scene, but where there is a crime scene to evaluate. We're involved in that. Q. Are you familiar with the concept of indirect behavioral assessment? A. Yes. Q. What is that concept? A. That's actually a concept I introduced in the mid-eighties to encompass a range of activities that people in my field of forensic psychiatry and related fields were often involved in. It was meant to encompass the activity of psychological autopsies. That was -- had been ongoing since the 1960s, in fact, starting in the LA Coroner's Office, where much of the original work was done on the concept of psychiatric autopsies. It encompassed the efforts that physicians were making to evaluate the mental state of testators who were already dead and no longer available to examine. It encompassed the work that was then called "profiling" being done by the FBI, which was the effort to analyze a crime scene or series of crimes, to be able to narrow the scope of the investigation toward a smaller group of suspects. The term was also meant to encompass the analysis of threatening communications or anonymous letters, bomb threats, death threats, et cetera, where one was trying to infer about human behavior from evidence of a kind that didn't include a face-to-face interview with the person whose behavior was being evaluated. And there are other examples, as well, of the activities that forensic psychiatrists and law enforcement officers engage in, where we have to try to reason from data, other than interview, data about human behavior. Q. Is that something that forensic psychiatrists do routinely? A. It is, as a matter of fact. Unlike clinical psychiatry and forensic psychiatry, it's been long recognized that because people who are parties to a matter are not always truthful, the indirect evidence about behavior is often more reliable than the direct evidence that might come from an interview. So whereas in clinical psychiatry, doctors obviously rely greatly on what their patients tell them. In forensic psychiatry, we have to rely on more than direct sources of information. Q. Now, in this case, Dr. Dietz, are you prepared to render an opinion regarding a likely motive that Mr. Simpson had for committing the two murders at issue here? A. Yes. Q. And is that opinion based on any technique, process or theory that is new to science? MR. LEONARD: Objection. Leading. THE COURT: This being a 402 hearing, overruled. THE WITNESS: Well, as a predicate to my -- and I want it to be clear that your answer assumes that Mr. Simpson is indeed the killer. And given that assumption, I'm prepared to offer an opinion as to motivation. And that opinion would be based on a kind of analysis that is not new and that is not one that I would characterize as a scientific technique. Q. Can you describe the process for us? A. Yes. The process is a rather straightforward one of first looking at the crime scene through photographs and diagrams, looking at the injuries to the victims as portrayed in autopsy photographs, and then the protocol from each autopsy. And based on the information that comes from the scene and from the autopsies, looking at the behavior that was necessary in order for that scene to have resulted and for those injuries to have resulted, and then reasoning about that scene and those injuries to examine what inferences, if any, can be drawn behaviorally about the offender. Q. Does that person you're talking about now assume that Mr. Simpson is the perpetrator, or is that simply trying to figure out whoever did it, what's the motivation for this particular crime? MR. LEONARD: Vague. I didn't understand it. THE COURT: Overruled. MR. LEONARD: It's up to you if you understand it. THE COURT: Overruled. THE WITNESS: What I said in my last answer is not based on any assumption of who did it; but rather, my first approach to look at motive is to look at the crime scene and the autopsy information. Q. And that's regardless of who you think may or may not have done it, has nothing to do with Mr. Simpson? A. That's correct. That is one source of information as to motive. If one of them then changes ground and says, assuming that Mr. Simpson is the killer, what is the motive, that brings into play other data that are specific to Mr. Simpson and to Ms. Simpson and to Mr. Goldman and to the relationships. And so with that other information, then it becomes possible to, of course, be much more specific. Q. Okay. Let's start just with the first one you described, which is the analysis. As I understand what you're saying, it's based solely on the photographs that you've seen of the crime scene and the autopsies and the autopsy protocols; is that right? A. Yes. Q. Okay. Now, when you're analyzing those, are you applying what you would call any kind of scientific technique or method? A. No. Q. Are the materials that you just described that you relied on in forming your opinion, materials that are typically relied upon by other experts in this field? A. Yes. And in any homicide case, a forensic psychiatrist ought to be concerned with the crime scene and with the autopsies or autopsy of the victim. And that kind of information is routinely relied on by those who pay attention to the data as they should. Q. What kind of people, in your experience, engage in that kind of analysis; what kinds of occupations? A. Well, for crime-scene analysis and looking at all autopsies to learn about the behavior, that's possibly done most often by homicide detectives who, at every homicide scene, are trying to do precisely that, and who attend autopsies largely for that purpose. It's also done by medical examiners and the other investigators who work at medical examiners' offices, other people in the forensic sciences, including, of course, forensic psychiatry. Q. Is there published literature in this field? A. Yes, there is. Q. Can you cite any examples of it? A. Certainly. All textbooks of homicide investigation talk about crime-scene analysis. And that's been true for more than a century. Probably the earliest psychiatric writings just talk specifically about crime scenes, which would be the writings of Richard von Krafft-Ebing, who, unlike other forensic psychiatrists of his day, a century ago, had developed a close friendship with the preeminent professor of criminology at the time, Hans Gross, who was a student of crime scenes and wrote the most important textbook of criminal investigation. In fact, it's still in print today. Q. When was that first published? A. Sometime prior to 1875. Q. Okay. And that's essentially the same kind of crime-scene analysis that we're talking about in this case? A. Well, it starts from the same place. Now, over the years, we have learned something -- or at least we all like to think so -- that the techniques have been that -- that existed then have become enhanced somewhat by further information that's developed over the years, and it continues to evolve. The first writing specifically about making behavioral inferences from crime scenes might be a book by James Brussel, published in 1968, called Case_Book_of_a_Crime_Psychiatrist. And Dr. Brussel had been involved in solving the case known as "The Mad Bomber," involving George Matesti and that by looking at indirect evidence that helped him point toward a particular suspect. Q. Can you cite any additional publications in the area of forensic psychiatry relating to crime-scene analysis? A. Yes. Well -- Q. Do you have a list of them? A. In my head, not in my hand. Q. Just give us, perhaps, the leading few. A. Probably the best known work today would be the FBI_Crime_Classification_Manual, which is not a forensic psychiatry work, but a law enforcement work. Q. Okay. Any others of particular note? A. I wouldn't want to characterize them as leading, but I should mention two of my own. Q. Okay. (Laughter.) THE WITNESS: I published an article called Sex Offender_Profiling_by_the_FBI. Q. Where did you publish that? A. It was originally in a Justice Department publication called Proceedings_of_a_Forensic_Science_ Symposium_on_the_Analysis_of_Sexual_Assault_Evidence. And it was reprinted in Clinical_Chronicles, which was published by the University of Toronto. Q. And what was the other article you were going to mention? A. Another one of mine that I think is on point is entitled Sexual_Fatalities_Behavioral_ Reconstruction_and_Equivocal_Cases. Q. Where was that published? A. Originally, in the Journal_of_Forensic_ Sciences. Q. Doctor, have you ever qualified to testify as an expert in court on a similar opinion; that is, testifying as to motive, based on an analysis of the crime scene and autopsy? A. Yes. Q. Can you cite to us some cases? A. Of course. That comes up as part of nearly every homicide case that I testify in. So, backwards, from most recent homicide cases where we've talked about the crime scene and motive, would include California_versus_Ernesto_ Anguiano, where I testified in October of '96. One was Wisconsin versus -- sorry; that one's not a homicide. California_versus_Sally_McNeil, where I testified at trial in March of '96. California_versus_Erik_Menendez, where I testified in February of '96. California_versus_Richard_Davis, which is the Polly Klaas case. I testified at trial in May of '96. Q. Did you justify arriving -- determining -- trying to determine motive from an analysis of the crime scene in the Klaas case? A. Yes. In fact, that was the principal purpose of my participation in the case. United_States_versus_James_E._Swann,_Jr., where I testified at trial in September '94. Q. Please tell us how many others there are in the last, say, five years. A. Nine others from that point back to the mid-90s. Q. And each of those you were testifying -- part of your testimony had to do with deriving motive from analysis of the crime scene and/or autopsy photos? A. Yes. Q. Now, the other opinion you mentioned, opinion you said, assuming Mr. Simpson is the perpetrator, trying to determine a likely motive that he would have had; is that right? A. Yes. Q. And how did you -- what method did you use, or what did you do to arrive at that opinion? A. To the information that I already had from the crime scene and autopsy information, I then added information specific to Mr. Simpson, which included portions of his testimony; his prior statements; his writings; Nicole Simpson's writings, including her diary; statements that were transcribed -- that is, transcripts of statements made by witnesses; some transcribed trial testimony; a 911 tape; and a surreptitiously made recording known as the Lally tape; a transcript of the conversation during the so-called slow-speed chase between Mr. Simpson and the law enforcement. Q. Are those kinds of materials the kinds of materials that are typically relied upon by forensic psychiatrists in assessing motive? A. Yes. Q. Is there a body of scientific literature regarding motives for homicide? A. Yes, there is. Q. Are you familiar with that body of knowledge? A. Yes, I am. Q. Is that something you keep abreast of in your work? A. Yes, reasonably well. Q. Okay. And have you been qualified as an expert to testify in other cases about a particular motive, that is likely to be the defendant's defense in the case, had for committing the crime for which he's on trial? MR. LEONARD: Objection. Not relevant as phrased. THE COURT: Overruled. THE WITNESS: Yes, I have. Q. (BY MR. GELBLUM) Can you give us a few examples? A. I think all the cases that I just listed would be examples of that. Q. You did -- you rendered both kinds of opinions in those cases? In other words, an opinion that wasn't specific to the person on trial, as well as an opinion it was specific to the motive of that person? A. Well, they'd be opinions that were derived from both. Q. Both from the crime scene and from the other information you just described? A. Yes. I think of the cases I specifically mentioned, all have a known offender. Now, there are other instances where I testified as to motive, where the offender was unknown. But I don't think I listed any by name. Q. Okay. And is the method -- are the methods that you used in arriving at these two opinions, methods that are generally accepted in the field of forensic psychiatry? A. I think "method" may put it too strongly, but this approach is generally accepted and is routinely done throughout the field. Q. How do you know that? A. Because I'm in touch often with colleagues. I'm the immediate past president of our national academy. And so I do have a good sense, I think, of what others are doing. MR. GELBLUM: I have nothing further, Your Honor. THE COURT: Cross. CROSS-EXAMINATION BY MR. LEONARD: Q. Nice to see you again. A. Hello. Q. Let me make sure I understand your testimony completely. You testified that you that -- your testimony had been admitted in a number of cases -- and correct me if I'm wrong, involving motive for an offense, correct? A. Yes. Q. Your assessment of what the motive was, right? A. Yes. Q. And in each and every one of those cases the perpetrator was already known. In other words, there was an assumption that an individual had committed the crime, right? A. In each one that I listed by name, that's correct. Q. Yeah. You were testifying, for instance, in the -- when there was an insanity defense or diminished capacity defense raised, correct, in most of those cases? A. In most of those, that would be true also. Q. So, you weren't testifying as to whether or not a particular defendant was guilty based on your motive analysis, you were just trying to gauge the motive for purposes of determining whether the defendant had a diminished capacity. Is that defined under the various laws and also whether -- whether or not there was a legitimate insanity defense, correct? A. In all but one, that's correct. That one of the named -- one of the cases that I named earlier, the sole exception would be California_V.__Davis in which my testimony did go specifically to his guilt to one charged offense that he had denied committing. Q. And -- but there were a number of uncharged offenses that were involved in that case, correct or not? Correct me if I'm wrong. A. Would you repeat the question? Q. Were there a number of uncharged offenses that were at issue in that case, in the Klaas case, Polly Klaas case? A. I don't know what you mean by an uncharged offense being at issue. Q. In that case, you had actually had some access to medical records of the defendant, correct? A. Many kinds of records of the defendant, including medical. Q. Including medical records, right? And you had -- you had had actually access to some evaluations that had been done of the defendant by other psychologists or psychiatrists, correct? A. Yes. Q. Okay. Now, let me see if I can understand how you compartmentalized your opinions in this case. Let's focus on the crime scene analysis. What you've done, essentially, and you use the word "profiling" several times, and I think I know what that means, but as I understand it, what you do is that you look at crime scene photographs. You look at the autopsy protocol and then you determine whether or not that what you see in this information fits the pattern or profile that you would expect to see in a certain kind of crime; that is, a certain homicide that was motivated by a certain mental state of the defendant, correct? A. Not exactly, no. Q. But in this case you, in fact, looked at the crime classification manual, correct? A. That is one thing I did, yes. Q. You tried to determine whether the pattern that had been developed by the behavioral science unit at the FBI was the facts, as you understood them, fit into the pattern, correct? A. Having reached an opinion, based on my own analysis, I then turned to the manual and found that there was a correspondence between my analysis of this case and their descriptions of a spontaneous domestic homicide. Q. And that's the kind of thing, for instance, that the behavioral science unit did in the Richard Jewell case; is that right? A. No, I don't think so. I think they were doing something different there. Q. They did a profile based on what they knew about the incident, the bombing incident, correct? A. I don't know what they originally did, and I'm unfortunately, not able to discuss my current role in that case. Q. Okay. You, in your testimony, and during your deposition, you indicated that you had looked at crime classification manual, right; and you had also thought about your own experience and your own -- The information you had about various kinds of homicides and you decided that this homicide fit a certain pattern, right? A. "You decided?" Q. You decided it looked like a spousal homicide to you; is that right? A. Based on my review of the autopsy information and the crime scenes, I reached certain opinions about this crime. I then later turned to the manual and found a correspondence between my own findings and their description of spousal homicide, that's correct. Q. Okay. Of course, it wasn't a perfect fit, was it? In other words, the factors that were indicated in the crime classification manual, you didn't find all of those with regard to spousal homicide, did you? MR. GELBLUM: Objection. Irrelevant. THE COURT: Overruled. THE WITNESS: No. That's why this isn't an undertaking of trying to look for a one-size-fits-all pattern. Q. (BY MR. LEONARD) Okay. A. Instead, it's an analysis of a particular crime. Q. Tell me, how can the judge, how can a jury, how could I, in cross-examining you possibly test the accuracy of your opinion? What could I look to? Tell me. A. Well, the first thing you could do is test the logic of what I have to say about the relationship between the scene or the injuries and my conclusions. You can probe whether they seem unreasonable. You can confront me with evidence that seems to contradict what I've said. You can show me how I've relied on incorrect information. In other words, you can do the things that cross examiners always do with expert witnesses; and in addition, you could point out information that shows that I'm wrong, and that this crime wasn't a domestic homicide; that it was committed by someone else. Q. Okay. But there is no -- when you sat down and you decided that you could render an opinion in this case, you had a pattern in mind, correct? It was in your mind. It was in the crime classification manual, right? A. I think you misapprehend the pattern issue. When I sat down and looked at this case, I was looking at a crime scene that had a lot of information in it. And my original opinions come from looking at that scene and what it has to say. Just as I think any experienced investigator would look at that scene and reach largely, similar opinions. Those opinions don't purport to prove who did it and it would be an inappropriate use of that kind of analysis, to say this who did it. Q. Thank you, Doctor. Now, you would agree with me that this type of profiling you're talking about or discerning appearance, that has no place in a court of law in determining whether or not a defendant is guilty or innocent, would you agree with that, sir? A. I don't think that's for me to say. I think that's for the Court to decide. Q. Isn't that what you just said? A. I think I just said that this kind of analysis does not purport to prove who, in fact, committed this crime. Q. Okay? A. I think evidence is admitted throughout criminal trials that does not in and of itself, taken alone, prove who committed this particular crime. And the same thing is true in a civil suit such as this in which no one piece of evidence may prove who committed this particular crime. Q. As a matter of fact, if I asked you, to a reasonable degree of medical certainty, whether you can sit in front of this jury and tell them that Mr. Simpson committed the crime, your answer is no; isn't that right? MR. GELBLUM: Objection. Irrelevant. THE COURT: Overruled. Q. (BY MR. LEONARD) Isn't that right? A. My answer is even more helpful to you -- Q. Thank you. A. I would say I wouldn't answer that question because that's not my role. Q. It would be unethical, wouldn't it? A. I think it's so far beyond the pail that it would be out of the question. Q. Now, you also are of the opinion that based on everything you know about the preoffense behavior of Mr. Simpson, that if you had to bet, you would bet that he didn't commit the murder. Didn't you say that in your deposition? MR. GELBLUM: Objection. Irrelevant. This isn't cross-examination on his deposition. We're here to determine the Kelly Frye issues, not the test of validity. THE COURT: I assume you're going to be offering this witness for the objective of proving your case. MR. GELBLUM: Of course. THE COURT: And I think reasonable cross-examination would encompass this witness's opinion in that regard at that point. This being a 402 hearing, overruled. Q. (BY MR. LEONARD) You remember testifying to that in your deposition? A. That's a mischaracterization. I'll tell you what I did testify to that you're misrepresenting. I testified that if the information available prior to these homicides concerning an abusive relationship were addressed for the purpose of prediction that one could safely bet that Mr. Simpson would continue to abuse Ms. Simpson. But one could not safely bet that Mr. Simpson would eventually, some day, kill Ms. Simpson. Q. And by the way, when you were at your -- Have you done anything since your deposition? You review any materials, got any additional information? MR. GELBLUM: Your Honor this is not a discovery tool here, Your Honor. MR. LEONARD: It's a foundational question. THE COURT: Okay. I'll strike it if it isn't. THE WITNESS: Not about this case. Q. (BY MR. LEONARD) What case did you think I was asking about? MR. GELBLUM: Your Honor, objection. Argumentative. THE COURT: Sustained. Q. (BY MR. LEONARD) Isn't it true that at your deposition, that you had very little knowledge at all about the prior history of Mr. Simpson and Nicole Brown Simpson; isn't that true? A. I think that's true. Q. And you were willing to opine that point, that Mr. Simpson was the kind of person to commit this crime; isn't that right? Do you remember saying that? A. Actually what I repeatedly said was that my testimony about preoffense behavior would go to the point that there is nothing about Mr. Simpson's preoffense behavior that would exclude him as the kind of person who would commit this crime. Q. Oh, okay. So what you're saying is that you can't say that he did it, but you can say that -- you can't say that he didn't do it, right? Is that what you're saying? A. What I'm saying is that I would not presume to say that he did it. I would, however, be prepared to say that as to rebut any suggestion that he's the kind of person who wouldn't have or couldn't have done it. Q. Let me read you from page 77 of your deposition. MR. PETROCELLI: What line? MR. LEONARD: Line 11. MR. PETROCELLI: One second. (Pause for Plaintiff's Counsel to read.) MR. PETROCELLI: Okay. MR. LEONARD: The question is (reading):. "Okay. "What I mean when I say that this preoffense behavior is such as to make him the prime suspect in the eyes of an experienced investigator, I mean to say that from behavior of him and characteristics of him there for the offense that are highly suggestive, that's exactly the kind of person who would do such a thing." Q. (BY MR. LEONARD) Do you remember testifying to that in your deposition, sir? A. Yes. Q. That's the basis to what you intend to elicit. That's what you intend to tell this jury, correct? That's what you'd like the jury to note at the end of your testimony? MR. GELBLUM: Irrelevant what this witness wants this jury to know. THE COURT: You may rephrase it. Q. (BY MR. LEONARD) Isn't that what you're trying to impart to this jury, that Mr. Simpson is the kind of person that would commit this crime? A. Not me, no. Q. That's what you said in your deposition, didn't you? MR. GELBLUM: Your Honor, it's a deposition. It's irrelevant. Your Honor, may I be heard on this to the extent that this -- THE COURT: This a 402 hearing. MR. GELBLUM: That's exactly what I was going to say, Your Honor. THE COURT: Overruled. Go ahead. Q. (BY MR. LEONARD) Did you or did you not say that? A. I said that in my deposition in response to whatever this line of questioning was. But I did not say that that's an opinion that I intend to offer at trial. And I, of course, do not have anything in particular that I care to tell this jury about. I'm responding to questions as they're asked. And my understanding of what you've been asked in this respect about pretense behavior is to be able to rebut any suggestion that Mr. Simpson couldn't have done it 'cause he's not the kind of person who would. Q. So I just wanted to make that clear for the Court that that's what your -- that's what your intent here is, right? MR. GELBLUM: Objection. Asked and answered. THE COURT: Sustained. Q. (BY MR. LEONARD) Let me ask you something. I found this curious in your deposition. When you -- when you're attempting to testify as to the behavioral reconstruction, if you will, that is not just the -- not just the information that's contained in the autopsy reports and the photographs? You're relying on what you called -- what is -- what's another phrase you used? I haven't heard that before, "indirect behavioral assessment." In other words, you're relying on what third parties have said about Mr. Simpson or what they've said about Nicole Brown Simpson; is that right? That's part of what you rely on? A. All sources of information other than what the defendant himself says are indirect. Q. Yeah. Yeah. You wouldn't want to rely on the defendant, right? MR. GELBLUM: Your Honor, he testified. He read the defendant's deposition. THE COURT: This is getting a little argumentative. You know there's no jury here. Q. (BY MR. LEONARD) You -- obviously you didn't interview Mr. Simpson, right? A. No, I haven't had that opportunity. Q. Did you ask these attorneys if they could petition the Court for an independent medical report? THE COURT: Sustained. Q. (BY MR. LEONARD) Did you -- did you -- did you look at any standardized tests or have any standardized tests administered to Mr. Simpson? A. No. That isn't available to me either. Q. Now, when you get this information that comes from third parties, you know, statements or things they've said to the police or things they've said to other third parties, how do you decide what to believe and what not to believe? A. Well, I start by believing photographs and what I can see with my own eyes. Q. I'll make the question very clear. I'm not talking about photographs. I'm talking about information that you receive from third parties' statements and so forth which you're relying on in rendering your opinion in this case, right? Tell me what -- how would you assess the veracity of those kind of statements? A. The same way anyone else does. That is by judging their internal plausibility, by judging their consistencies with other information, by judging whether they fit the other facts as they're known. By learning whether the individuals have been discredited or have had their reliability called into account in exactly the same way the fact-finder does. Q. Isn't that what the jury's supposed to do in a trial? A. Absolutely. Q. That's not your job, is it? A. Well, it's also necessary in order to draw any opinions to be able to look at what the facts seem to be and all facts are in play in the midst of a legal dispute. My role is different from that of perhaps fact witnesses in that I'm required to be fair in my analysis of what to rely upon and by my view that I'm ethically bound to disclose when I'm aware that there is an unreliable source of information. Whereas fact witnesses don't have to worry themselves about those things. Q. How much you normally bill an hour? MR. GELBLUM: Objection. Relevance. THE COURT: Overruled. THE WITNESS: My customary private fee is $600 an hour. My government fee is $400 an hour and it's the latter that I'm charging on this case. Q. (BY MR. LEONARD) Okay. No further questions. MR. GELBLUM: Just a couple, Your Honor. REDIRECT EXAMINATION BY MR. GELBLUM: Q. Dr. Dietz, you testified in cases other than the Davis case, as to motive or the issue was whether a person had committed a crime as opposed to an insanity issue? A. Yes. Q. All right. You -- do you know how many other cases -- about how many other cases? A. There are three that I can point to specifically. I don't know how many additional ones there may also be. Q. Okay. Do you know the names of those three? A. I know the name of two. Vance_versus_ Krause which was a civil case in Georgia known as the civil murder trial, in which a man denied having killed his wife. But I was plaintiffs' expert in a case designed to prove that he had killed his wife so that he wouldn't receive the life insurance benefits from his murder. And a second case that I can recall by the name South Carolina versus Register. There was no mental defense raised and my recollection is that it was based on crime scene and other indirect evidence of his behavior that I testified as to the motive of the offender. I don't recall too much detail about it. And then the third case that I can recollect was an Ohio case in which a man was involved in the asphyxia death of a woman he knew and I don't remember too much about it. But it was based on crime scene evidence and other indirect evidence that I testified. Q. You ever testified in premise liability cases? A. Oh, yes. Well, I do that often. In many of those involved exactly the issue of looking at a crime scene and talking about the behavioral reconstruction of the offense and the motivation of the offender who may well be unknown. Q. And approximately how many times have you done that? A. I don't have a list of all those along, but I would imagine it's possibly been, oh, I'd say a dozen or more in the last two or three years where I've testified at a deposition about those issues and a few of them have come to trial. Q. A few of them have come to trial? A. Yes. Q. And finally, Doctor, can you describe just briefly and generally what you testified to in the Richard Davis case on this subject of motive and identity? A. In that case, the defendant had denied having committed lewd acts against Polly Klaas which was one of the charged offenses. And there were three crime scenes. The Klaas residence, from which she had been abducted; a location on a hillside, where she was held for a time while he got his car out of a ditch; and a third location where her body was recovered. And each of those crime scenes revealed evidence related to the motivation of the offender. For example, at the residence where Polly and her friends were first approached by the offender, were found precut length of a lingerie-like fabric that Davis had brought with him and had used to restrain the three girls. The fact that he used lingerie fabric, that he had precut it and brought with him a knife to the scene indicated that he'd fantasized in advance about his crime and had intended to restrain victims. At the second -- oh, and he took with him from that scene tights and a nightgown that he later put on Polly. At the second scene, at the hillside, there was evidence of a clearing in the woods. Davis had been seen there by witnesses with brush residue on, like, leaves and pine, pine needles. There was a condom wrapper of a brand that's unusual but to which Davis was known to have access. And at the third location, where her body was found, although she was in an advanced state of decomposition, there was additional evidence suggestive of sexual assault in that her nightgown was inverted in a manner inconsistent with her having been dragged and thereby having the nightgown removed because it was symmetrical. Q. What conclusions did you come to and testify to on the basis of your analysis of the physical evidence? A. On the basis of that and more -- Q. Right? A. -- I was able to conclude that Davis had, in fact, intended to commit a sex offense against Polly Klaas and had, in fact, engaged in lewd acts with her. Q. And you were permitted by the Court to testify to that subject? MR. LEONARD: Objection. THE COURT: Overruled. MR. LEONARD: Lack of foundation. THE COURT: He testified or he didn't. Q. (BY MR. GELBLUM) Did you testify to those conclusions in court? A. I testified about it being a sexually motivated offense and about his desire to control a helpless, suffering victim. Q. Thank you, Doctor. MR. LEONARD: Your Honor, couple more. THE COURT: Go ahead. RECROSS-EXAMINATION. BY MR. LEONARD: Q. (BY MR. LEONARD) In the Davis case, it was assumed and known who the offender was, correct? A. He had confessed to the murder. Q. Right. A. But not the sex. Q. At issue was whether or not he had committed sexual acts in the course of the murder, correct? A. That was the issue for me, yes. Q. It had nothing to do with whether or not he was the person who committed the murder. He was -- he already confessed and was identified, right? A. Yes. Q. And was your testimony challenged in that case in any way, if you know? A. Yes. There was a hearing prior to the -- to the trial that had to do with what language I would be permitted to use. Q. Oh, okay. Thanks. Nothing further. MR. GELBLUM: Nothing. THE COURT: You may step down. (The following proceedings were held in open court outside the presence of the jury:) MR. PETROCELLI: With the Court's permission, I'd like to move in Exhibit 204. THE CLERK: It's actually 2148, the hand diagram. MR. PETROCELLI: I'd like to move in Exhibit 21 -- THE CLERK: Next in order is 2160. MR. PETROCELLI: From Detective Berris' examination. Thank you. THE COURT: Received. (The instrument herein referred to was marked for identification and received in evidence as Plaintiffs' Exhibit No. 2160.) THE COURT: Next. MR. GELBLUM: Your Honor, plaintiffs' call Dr. Dutton. Dr. Donald Dutton. DONALD DUTTON, called as a witness on behalf of Plaintiff Goldman, was duly sworn and testified as follows: THE CLERK: You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God? THE WITNESS: I do. THE CLERK: Sir, if you would, please swing that microphone under your chin. Thank you. And would you please state and spell your name for the record. THE WITNESS: Donald George Dutton. D-O-N-A-L-D, G-E-O-R-G-E, D-U-T-T-O-N. DIRECT EXAMINATION BY MR. GELBLUM: Q. Afternoon, Dr. Dutton. A. Afternoon. Q. What is your occupation, sir? A. I'm a psychologist. Q. What kind of psychologist? A. I'm a research psychologist with a specialty in forensic psychology and specifically in spousal violence. Q. And how long have you specialized in spousal violence? A. Twenty-two years. Q. Okay. Did you bring your curriculum vitae with you? A. Yes, I did. Q. Okay. MR. LEONARD: Stipulate he's an expert in forensic psychology, Your Honor. MR. GELBLUM: And family violence, as well. MR. LEONARD: Whatever. MR. GELBLUM: Yes. MR. LEONARD: Sure. Q. (BY MR. GELBLUM) Is this a copy of your C.V.? A. Yes. MR. GELBLUM: I'd Like to mark this Plaintiffs' 2 for this hearing. THE COURT: Okay. (The instrument herein referred to as Donald Dutton's curriculum vitae was marked for identification as Plaintiffs' Exhibit No. 2 to this 402 hearing.) Q. Dr. Dutton, have you ever testified or -- I'm sorry -- qualified in court before as an expert on family violence issues? A. Yes, I have. Q. How many times? A. Twelve times. Q. Are those cases listed in your C.V.? A. Yes, they are. Q. Okay. The -- you currently conducting any research in the area of family violence? A. Yes, I am. Q. Will you describe that research, please. A. One's a continuation of a project that develops profiles of abuse perpetrators, looks at what their psychological profile looks like. And the other is a study that we're currently doing on men who have been convicted of spousal homicide. These are men who are federally incarcerated. Q. Okay. And what are you studying them for? A. We are attempting to ascertain if there's any sort of common pattern in the modus operandi of the killing, if there's any common factors that would characterize spousal killings, if there's any kind of psychological profile that relates to either the modus operandi or other characteristics of the killing. Q. Are you prepared in this case, Dr. Dutton, to render an opinion regarding factors that are characteristic of spousal homicide? A. Yes, I am. Q. Is there a substantial body of literature in the field of those types of characteristics? A. There is a substantial body. There's in the neighborhood of 40 separate research papers, and several books have been written on the topic. Q. Can you name some of the books? A. Yes. As a matter of fact, I've got some of them here. One of them is called Homicide_In_ Families by Ann Goetting, G-O-E-T-T-I-N-G. One of them is called Femicide: Politics_of_Woman_Killing by Joe Radford and Diana Russell. One of them is called When_Battered_Women Kill, by Angela Brown. And there's a compendium of research here called Lethal_Silence_2000,_The_Source_Book_on_Fatal_ Domestic_Acquaintance_and_Stranger_Aggression, that is an edit book that has 40 plus chapters on various forms of violence, including chapters on spousal homicide and spousal violence. Q. Are there any journals that are devoted to the issue of family violence? A. There's at least three. One is called Violence_in_Victims; one is called Journal Family Violence, and one called the Journal of Western Violence. They are either exclusively or predominantly concerned with issues of family violence. Q. Are articles about family violence, including spousal homicide, included in other journals? A. Yes. American_Journal_of_Orthopyschology , criminology journals, from time to time, will have articles on spousal homicide. The_New_England_Journal of_Medicine and the Journal_of_the_Medical_Association have recently published articles on spousal homicide. Q. Do many of those articles and journals and books discuss factors that have been found to -- in research to be present -- to be characteristics of spousal homicide? A. Yes, they do. Q. Are there conferences that are devoted to the issue of family violence? A. Yes. There's an international family -- family violence research conference held annually at the University of New Hampshire that's been held since . In addition to that, there's -- the International Family Law Conference frequently has discussion of issues on family violence. The American Society of Criminology presents research papers on family violence and spousal homicide. And the American Psychological Association also does the same. And there's a Division 41 of the American Psychological Association, which is called Psychology and Law, which is a especially interested in issues of spousal violence. Q. You said you formed an opinion regarding certain factors that are characteristic of spousal homicide? A. Yes. Q. How did you determine those factors? How did you go about reaching that opinion? A. Well, I examined the research literature that -- all of the empirical studies that had been developed, which really examined the circumstances surrounding the deaths of women, and in many cases compared that to nonintimate homicide cases, and tried to ascertain what factors characterized or stood out when one was examining intimate homicide or an "intimate femicide," as it's sometimes called. Q. Say what you mean by "intimate homicide." A. Intimate homicide means any homicide that occurs in a relationship where there's been an emotional or sexual intimacy between the perpetrator and the victim. And intimate femicide refers to the same thing, but where the victim of the homicide is a woman. Q. It's a little broader than spousal homicide; is that right? A. Yes. That's -- it's broader. Q. Are your familiar, Dr. Dutton, with the research methods used in literature that you reviewed, to render your opinion, to form an opinion? A. Yes, I am. Q. And are those research methods new research methods? A. No, they're not new research methods; they've been in use for some time. Q. Do you have any idea how long they've been in use? A. Well, the actual process of looking at both archival -- using archival interview methods to study perpetrators has been in use since the '30s. The specific application to spousal homicide and issues having to do with intimate violence is new. We're -- because most of the research on intimate violence really began in 1970s. Q. Okay. Do the people who do the research, including yourself, in intimate homicide, use the same methods of research that have been used since the '30s? A. Yes, they have. Q. There's no new scientific technique applied to that research? A. No. It's -- no. Essentially, the techniques are pretty much the same. Q. And do you use those methods? A. Yes, I do. Q. And are those the research methods that you're familiar with? Are those generally accepted in the field of research psychology? A. They're generally accepted. They're published in the research journals. And in order to be published in a journal, it has to pass peer review. If it's not an acceptable method, it wouldn't get published. Q. Can you briefly describe the research method used. A. Well, in terms of examining spousal homicide, what you usually do is, to start with a known group of offenders, and to obtain all the archival material that's available, which means all of the police records, coroners' records, any kind of medical or psychological or psychiatric records that would be in that man's file. And wherever possible, to go back and talk to what is called a "proxy" for the victim. That is someone who knew the victim well and could speak to the circumstances that were occurring in the relationship between the offender and the victim prior to the victim's death. Q. And in the peer reviewed articles that you discussed in the journals, is the research methodology routinely laid out? A. Yes; it has -- you have to describe your methodology in order for the article to be published. Q. And, Dr. Dutton, is it generally accepted in the field of family violence that there are certain factors that are indeed characteristic of spousal homicide, or intimate homicides, rather? A. Yes, there are. MR. GELBLUM: Nothing further. CROSS-EXAMINATION BY MR. LEONARD Q. Nice to see you again. A. Hi. THE COURT: Apparently, it's not mutual. (Laughter.) MR. LEONARD: I resemble (sic) that remark. Q. (BY MR. LEONARD) It sounds to me like you're testifying as an expert on homicide; is that right, or you plan to testify? A. Well, I'm testifying on a form of family violence, which is an extension of other forms of family violence, but it's still an extreme form of family violence, called homicide. Q. Can you answer my question? A. I thought I just did. Q. Are you attempting to -- to tell this Court that you will be testifying at the trial as an expert on homicide? MR. GELBLUM: Objection. Asked and answered. THE COURT: Overruled. THE WITNESS: I will be testifying about characteristics of spousal homicides. Q. (BY MR. LEONARD) Are you an expert on homicide, generally, sir? MR. GELBLUM: Objection. Irrelevant, not being offered on that. THE COURT: Overruled. THE WITNESS: Can you tell me what you mean by "homicide, generally?" Q. (BY MR. LEONARD) Well, you testified at your deposition that you weren't an expert on homicide, you were an expert on spousal homicide. Do you remember that? A. Yes, I do. Q. Okay. That's what I meant. A. Okay. I consider myself to be an expert on spousal violence and spousal homicide. Q. Okay. But what you're intending to do here is, you're intending to take the stand, and as I understand it, testify as to a pattern or profile of spousal homicide, correct? A. Yes. Q. Without applying it to the facts in the case, right? That's what the moving papers say. A. I don't believe we'll be applying it specifically to facts in this case. Q. Okay. A. It will be characteristics of spousal homicides in general. Q. Just in the abstract? A. Compared to nonintimate homicide. Q. Well, but you're not an expert in anything else. How can you compare it? A. I can read the literature. Q. If you do take the stand and I have the pleasure of cross-examining you, you'll agree that you're not an expert in anything but spousal homicide, right? MR. GELBLUM: Objection. Misstates the testimony. THE WITNESS: Well, I don't know what else I can say. I'm an expert in spousal violence, and that includes spousal homicide. And I would just like to add one thing to that: In examining the characteristics of spousal homicides, one compares them to nonintimate homicides. Q. (BY MR. LEONARD) Well, that puzzles me. Because in your deposition, I tried to do that. Do you remember? I asked you questions about -- you mentioned something about wound appearance or use of a knife or something. Do you remember that? Do you recall that? A. Yes. Q. Okay. And I asked you, "Well, wait a minute. Aren't there -- isn't that kind of weapon used in other types of homicides?" Do you remember that question? A. Yes, I do. Q. And you said, "I can't answer that. I'm not an expert in anything but spousal homicide." Do you remember that, sir? A. Yes, I do. Q. How are you going to be of any help to this jury if you can't answer something as basic as that? MR. GELBLUM: Objection. Irrelevant, argumentative. THE WITNESS: I don't -- THE COURT: Excuse me. Well, at this point, it would appear to me that, based upon the offer that the plaintiff has made, the Court has not the foggiest notion of what this witness's testimony is going to be and would tend to exclude. MR. GELBLUM: May I reopen, then? MR. PETROCELLI: Explain. MR. GELBLUM: I can have him, if you like, Your Honor. That's what I should do, probably, is have him testify about the factors that he identified as there -- that have been characteristics of spousal homicide. THE COURT: The reason I mention that at this point is, Mr. Leonard has intimated, by his question to this witness, something about use of knife and appearance of injury. And I'm at a loss as to what the proffered testimony is going to be, re factors -- characteristics of spousal homicide. MR. GELBLUM: I'll be happy to elicit that. THE COURT: Go ahead. MR. GELBLUM: Can you tell us, please, Dr. Dutton -- MR. LEONARD: You want me to sit down? MR. GELBLUM: You can stay up. MR. LEONARD: You want me to stay here? THE COURT: You can sit down. You're possibly going to be standing for a long time. MR. LEONARD: I don't think so. DIRECT EXAMINATION (REOPENED) BY MR. GELBLUM: Q. Can you tell us, Dr. Dutton, what factors you have determined are characteristic of spousal homicide? A. Well, if we EXAMINE the research literature, we find, for example, that one factor that's characteristic of spousal homicide is a previous violence of -- previous history of violence in the family between the eventual perpetrator and victim of the homicide. In fact, it magnifies the risks by a factor of eight. That's one of the characteristics or one of the factors that I will be testifying, or I'll been describing. Another factor is descriptions of jealousy that come out of the reports and in the literature reports that -- where the perpetrator's described as jealous to the point of obsessing over the eventual homicide victim. Another factor is an estrangement, which is a major risk factor. Most women who are killed are killed, first of all, by a man that they knew in an intimate relationship during the first two months of estrangement. That's pretty well established in at least five or six separate research articles, including one of the books that Lenore Walker has written, Terrifying_Love, where she talks about that being an especially dangerous and risky time. Q. Lenore Walker is a defense expert in this case? A. That's right. So, we'll be testifying about all of those particular issues. An