·1

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·3· · · · SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN JOAQUIN

·4· · · · · · · · · · · · · · ·---o0o---

·5

·6· ·THE PEOPLE OF THE STATE· · ·)· · ·OF CALIFORNIA,· · · · · · · )·7· · · · · · · · · · · · · · · ·)· · · · · · · · · · Plaintiff,· ·) No. STK-CR-FE-2016-0004780·8· · · vs.· · · · · · · · · · · )· · · · · · · · · · · · · · · · ·) Department Number 9B·9· ·ALVIN LARRY DAVIS,· · · · · )· · · · · · · · · · · · · · · · ·) TESTIMONY OF10· · · · · · · · · Defendant.· ·) DR. JOHN BUCKLETON· · ·____________________________)11

12· · · · · · · · · · · · ·December 18, 2017

13

14· · · · The above-entitled matter came on regularly at the date

15· ·and time above set forth, before the HONORABLE GEORGE J.

16· ·ABDALLAH, JR., Judge of said Superior Court, for the purpose

17· ·of a Kelly Hearing.

18· ·APPEARANCES OF COUNSEL

19· · · · · · · · · GINA DELLA MAGGIORE, Deputy District Attorney,

20· ·County of San Joaquin, 222 East Weber Avenue, Room 202,

21· ·Stockton, California· 95202, appeared as counsel for and on

22· ·behalf of the People.

23· · · · · · · · · ANNIE C. BELES, Attorney at Law, Beles & Beles

24· ·Law Offices, 1 Kaiser Plaza, Suite 2300, Oakland, California

25· ·94612, appeared as counsel for and on behalf of the

26· ·Defendant.

27

28· ·Reported by:· KELLIE A. GAFF, C.S.R. No. 7567

·1· · · · · · · · · · · · ·INDEX OF WITNESSES

·2

·3· · · · WITNESSES· · · · · · · · · · · · · · · · · · · · PAGE

·4

·5· ·DR. JOHN SIMON BUCKLETON

·6· ·Direct Examination by Ms. Della Maggiore· · · · · · · ·12

·7· ·Cross-Examination by Ms. Beles· · · · · · · · · · · · ·47

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·1· · · · · · · · · THE COURT:· Calling the matter of People

·2· ·versus Alvin Davis.

·3· · · · · · · · · MS. DELLA MAGGIORE:· Gina Della Maggiore on

·4· ·behalf of the People.· Sitting next to me is Eduardo

·5· ·Rodriguez, DA investigator.

·6· · · · · · · · · MS. BELES:· Annie Beles with Mr. Davis who is

·7· ·present in custody and present.

·8· · · · · · · · · THE COURT:· We are here today in Mr. Davis'

·9· ·matter to conduct what is known as first prong Kelly hearing,

10· ·that is the Court's understanding.

11· · · · I'm going to state the issue, what I believe is the

12· ·issue for the day, and hear from counsel if you believe it is

13· ·different from what has been raised by this -- the prior

14· ·motions in this matter.

15· · · · So today the issue is is the STRmix technique in DNA

16· ·analysis a test generally accepted in the forensic science

17· ·community upon consensus drawn from a typical cross-section

18· ·of the qualified forensic science community?

19· · · · Is that our issue?

20· · · · · · · · · MS. BELES:· I'm still reciting it.

21· · · · Yes, Your Honor, I believe that is an accurate -- an

22· ·accurate question with -- considering Kelly and other case

23· ·law I brought up in my motion.

24· · · · One other preliminary matter.

25· · · · · · · · · MS. DELLA MAGGIORE:· Before we get there, yes,

26· ·I agree with the Court as long as the Court -- I believe it

27· ·would be the Court's understanding as well that it is not

28· ·simply based on the number of experts or the number of votes,

·1· ·if you will, that are out there in support of this, it is

·2· ·rather based on the general forensic scientific community and

·3· ·the quality of the testimony that you're going to hear

·4· ·today.

·5· · · · · · · · · MR. BELES:· Huh-uh (negative).· I think that

·6· ·is argument.· I'm not going to respond.

·7· · · · · · · · · THE COURT:· So we make a record as to what

·8· ·occurred at the preliminary hearing with regard to this

·9· ·evidence.· As I understand, it was admitted subject to --

10· · · · · · · · · MS. BELES:· It was not admitted.

11· · · · What happened at the preliminary examination was that

12· ·the prosecutors and I had discussed the potential of

13· ·admitting it at the prelim and having the Kelly argument at a

14· ·later date.· The Court did not agree with that procedure and,

15· ·therefore, this item of evidence was not introduced and no

16· ·STRmix, the technology, was discussed at the prelim.· It was

17· ·simple randem match probability DNA testing.

18· · · · · · · · · THE COURT:· Thank you.

19· · · · Ready to proceed?

20· · · · · · · · · MS. BELES:· No.

21· · · · The preliminary matter is this:· In the courtroom, Dr.

22· ·Buckleton is one expert that will be testifying and

23· ·Mr. Halsing, H-a-l-s-i-n-g, from the Department of Justice,

24· ·will also be testifying.· I would ask that Mr. Halsing be

25· ·excused from the court and excluded from the court while Dr.

26· ·Buckleton testifies.

27· · · · I'm also aware that Ms. Kyo, K-y-o, who testified at the

28· ·preliminary hearing regarding what I call the regular DNA

·1· ·testing is present in the courtroom.· I don't think --

·2· ·because she's not implicated in the STRmix analysis, I don't

·3· ·think Ms. Kyo is a problem.

·4· · · · I think Mr. Halsing should not be present during Dr.

·5· ·Buckleton's testimony.

·6· · · · I further request that Dr. Buckleton and Mr. Halsing be

·7· ·admonished, as we discussed in our motions in limine last

·8· ·week, they are not to discuss their testimony during the

·9· ·course of the 402 hearing -- during the course of the Kelly

10· ·hearing.

11· · · · · · · · · THE COURT:· Counsel.

12· · · · · · · · · MS. DELLA MAGGIORE:· Your Honor, a couple

13· ·comments.

14· · · · I believe Evidence Code Section 777 covers this. I

15· ·believe there is case law out there, I'm not aware of that

16· ·exact citing, which the Court can exercise discretion in

17· ·allowing Eric Halsing to remain.

18· · · · Dr. Buckleton's testimony is regarding the general

19· ·scientific community.· He's one of the creators of STRmix.

20· ·Eric Halsing's testimony goes to not only some of what DOJ in

21· ·California has done with STRmix and how long it has been used

22· ·and that it's been validated, but he also talks about case

23· ·specific more along the lines of a third prong Kelly.· If the

24· ·Court would allow them to watch each other's testimony, that

25· ·is the People's request.

26· · · · I also feel it would be appropriate to make an order

27· ·that they not discuss their testimony.

28· · · · · · · · · MS. BELES:· I have concerns about Dr.

·1· ·Buckleton -- I understand their roles are different.· But I

·2· ·believe the safest route and to preserve the independent

·3· ·roles that each of them have is best preserved by them not

·4· ·observing each other's testimony.· Certainly as experts if

·5· ·they want to consult at a later time, long after this case,

·6· ·about using transcripts or how -- how things work that may be

·7· ·of scientific benefit, but not in tune with what I believe is

·8· ·my client's due process rights under the United States and

·9· ·California Constitutions.

10· · · · · · · · · THE COURT:· What will Mr. Halsing's role be?

11· · · · · · · · · MS. DELLA MAGGIORE:· His role will be to

12· ·provide evidence that California Department of Justice has

13· ·basically adopted and gone live and utilizes STRmix in active

14· ·casework.· He'll explain his training.· He'll explain the

15· ·validation process and what California Department of Justice

16· ·is doing with STRmix.· He -- he would go into the various

17· ·steps that are utilized regarding deconvolution and

18· ·statistical analysis.

19· · · · · · · · · MS. BELES:· Well, I certainly do not put on

20· ·any Clarence Deiro hat.

21· · · · I would say I think what might be of concern to me is if

22· ·I cross-examine Dr. Buckleton in one way and I want to

23· ·cross-examine Dr. Halsing as a clean slate, I can't do that

24· ·if Mr. Halsing remains in the courtroom during Dr.

25· ·Buckleton's testimony.· One hopes I could be that artful.

26· · · · · · · · · THE COURT:· There appears to be some case law,

27· ·the rule under Evidence Code Section 777, in a different way

28· ·when experts are involved, so I'm going to look at that case.

·1· · · · · · · · · MS. BELES:· Does the Court have a citation?

·2· · · · · · · · · THE COURT:· People versus Valdez 177

·3· ·Cal.App.3rd and the pinpoint is 687.

·4· · · · I'm still getting accustomed to my new courtroom.· I'm

·5· ·afraid my Case Law access is not operating.

·6· · · · We'll take a break until 10:20 -- 10:25.

·7· · · · · · · · · MS. BELES:· Thank you.

·8· · · · · · · · · MS. DELLA MAGGIORE:· Thank you.

·9· · · · · · · · · (Recess)

10· · · · · · · · · THE COURT:· Returning to the matter of People

11· ·versus Alvin Davis.

12· · · · Did you have a chance to look?

13· · · · · · · · · MS. BELES:· I did, Your Honor, Valdez 177

14· ·Cal.App.3d 680.· I note the difference in the sense -- I

15· ·looked at a couple other cases as well.· In that situation in

16· ·the Valdez case, there were two experts, one on each side,

17· ·defense expert and a prosecutorial expert.· Those experts

18· ·wanted to be able to watch one another, to respond almost in

19· ·real time before the defense expert testified about the

20· ·forensic and serological issue.

21· · · · There were a couple other cases that I reviewed.· There

22· ·was the Maxi case, 1972 case, that does stand for the

23· ·premise -- 28 Cal.App.3d 190, that cross experts -- there is

24· ·some validity to that.· But I don't believe we are in that

25· ·situation because we have experts on the same side, meaning

26· ·the prosecution, that intertwines with one another

27· ·inextricably.· I'm not impugning bad intent on Dr. Buckleton

28· ·or Mr. Halsing, but I think to safeguard my client's right to

·1· ·having an untainted, uneven, implied, not a clean slate

·2· ·witness is compromised and I object to the two of them being

·3· ·in the courtroom at the same time.

·4· · · · · · · · · THE COURT:· Ms. Della Maggiore.

·5· · · · · · · · · MS. DELLA MAGGIORE:· Your Honor, it's

·6· ·discretionary for the Court.· 777 states that the Court may

·7· ·exclude.

·8· · · · I will submit to the Court and respect the Court's

·9· ·decision.

10· · · · · · · · · MS. BELES:· Also, if I may --

11· · · · · · · · · THE COURT:· Yes.

12· · · · · · · · · MS. BELES:· -- make one more comment.

13· · · · I don't think I'm -- I think my position is reasonable

14· ·to ensure my client's due process rights.

15· · · · Given my concession that Ms. Kyo is not involved in the

16· ·STRmix, I don't have a problem with Ms. Kyo being in the

17· ·courtroom.· But it is the two experts about the same issue

18· ·that is problematic for me and I object.

19· · · · · · · · · THE COURT:· So Dr. Buckleton who will discuss

20· ·the STRmix technique in general and offer a basis for a

21· ·finding of reliability and the other gentleman will be

22· ·testifying again to what?

23· · · · · · · · · MS. DELLA MAGGIORE:· As to the same concept,

24· ·Your Honor, but specifically to its validation for the state

25· ·of California through DOJ.

26· · · · · · · · · THE COURT:· But not as to this particular

27· ·case?

28· · · · · · · · · MS. DELLA MAGGIORE:· As to this particular

·1· ·case Eric Halsing will ultimately be coming in to testify as

·2· ·to that hopefully should we get to the third prong.

·3· · · · · · · · · THE COURT:· Why are we going to the third

·4· ·prong today?

·5· · · · · · · · · MS. DELLA MAGGIORE:· It's my understanding

·6· ·we're not.· I'm just stating that to the Court that he does

·7· ·have that information.

·8· · · · · · · · · MR. BELES:· So I would note, first of all,

·9· ·they are present in the courtroom during this whole argument.

10· · · · Secondarily, I think what I'm hearing Ms. Della Maggiore

11· ·say is Dr. Buckleton is going to testify to general STRmix's

12· ·alleged reliability and then Mr. Halsing is going to testify

13· ·what the California DOJ has done to support whatever Dr.

14· ·Buckleton says makes it reliability of the validation

15· ·studies.

16· · · · · · · · · MS. DELLA MAGGIORE:· Not that he's just

17· ·testifying generally to STRmix.· He's in fact one of the

18· ·creators.· He will testify specifically to what STRmix is.

19· · · · · · · · · MS. BELES:· Of course.

20· · · · · · · · · THE COURT:· Both will?

21· · · · · · · · · MS. DELLA MAGGIORE:· Both will, yes.

22· · · · · · · · · THE COURT:· Why the duplication?

23· · · · · · · · · MS. DELLA MAGGIORE:· Because the People feel

24· ·that there is import to be given to the fact that California

25· ·Department of Justice is utilizing STRmix and has been

26· ·trained on it in fact by Dr. Buckleton.

27· · · · · · · · · THE COURT:· But that you wouldn't go

28· ·necessarily to the first prong.

·1· · · · · · · · · MS. DELLA MAGGIORE:· However, it could because

·2· ·there has been a validation study that has been performed by

·3· ·the California Department of Justice.

·4· · · · · · · · · MS. BELES:· One -- one of the comments makes

·5· ·me even more concerned.

·6· · · · If Dr. Buckleton is training Mr. Halsing in a scientific

·7· ·manner, I don't want Dr. Buckleton training Mr. Halsing in

·8· ·testifying either.

·9· · · · · · · · · THE COURT:· Well --

10· · · · · · · · · MS. BELES:· Again, I'm not trying to be

11· ·derogatory, these are two people being offered as expert

12· ·witnesses on basically the same issue and they should be

13· ·independent of one another.· And no matter how much it may be

14· ·interesting how Dr. Buckleton testifies to Mr. Halsing for

15· ·future testimony, et cetera, I want Mr. Halsing to testify

16· ·from Mr. Halsing's perspective without knowledge and without

17· ·hearing what Dr. Buckleton testified to.

18· · · · · · · · · THE COURT:· Let me ask you this.· Let's say I

19· ·excluded Mr. Halsing, is it?

20· · · · · · · · · MS. BELES:· Yes.

21· · · · · · · · · MS. DELLA MAGGIORE:· Yes.

22· · · · · · · · · THE COURT:· In preparation for trial, would he

23· ·not be allowed to read the doctor's transcript of his

24· ·testimony?

25· · · · · · · · · MS. BELES:· He probably would be, but that

26· ·would not affect his testimony in this 402 hearing.· We are

27· ·humans, we are not robots, where we are not somewhat swayed

28· ·by what someone said before the revered inventor of the

·1· ·actual software who trained the person.· I understand that.

·2· ·I can see probably this transcript will be ordered, Mr.

·3· ·Halsing review it before his trial testimony if either of

·4· ·them are allowed to testify.· But I just want this hearing to

·5· ·be clean and concise and without taint.

·6· · · · · · · · · THE COURT:· Matter submitted?

·7· · · · · · · · · MS. BELES:· Submitted.

·8· · · · · · · · · THE COURT:· Submitted?

·9· · · · · · · · · MS. DELLA MAGGIORE:· Submitted.

10· · · · · · · · · THE COURT:· As the Court pointed out in People

11· ·versus Valdez, the danger is of tailored testimony or less

12· ·than candid testimony arising out of the inclusion of various

13· ·witnesses as they testify.

14· · · · The Court finds based on the argument of counsel and the

15· ·offers of proof that -- the notion of tailored testimony, the

16· ·Court would hope that it is focused between the two so that

17· ·we can avoid duplication and undue consumption of time.· The

18· ·Court does not find the dangers noted in People versus Valdez

19· ·exist in the presence of both of the individuals who will

20· ·testify and, therefore, the request that Mr. Halsing be

21· ·excluded during the doctor's testimony is denied.

22· · · · · · · · · MS. BELES:· The only other preliminary matter

23· ·prior to the testimony is that I spoke with Ms. Della

24· ·Maggiore and with the Court's permission I would reserve voir

25· ·dire of both gentlemen's expertise.· I would prefer to do

26· ·just one cross.· If I have an objection to their designation

27· ·as an expert, which is not my strongest point, I will make

28· ·that objection after the testimony, but I will reserve that.

·1· · · · · · · · · THE COURT:· All right.

·2· · · · · · · · · MS. BELES:· Thank you.

·3· · · · · · · · · THE COURT:· Call your first witness.

·4· · · · · · · · · MS. DELLA MAGGIORE:· Thank you.

·5· · · · People call Dr. John Buckleton to the stand.

·6· · · · · · · · · · · ·JOHN SIMON BUCKLETON,

·7· · · · a witness called on behalf of the People, having been

·8· ·duly and regularly sworn, testified as follows:

·9· · · · · · · · · THE WITNESS:· I do.

10· · · · · · · · · THE CLERK:· Thank you.

11· · · · · · · · · THE COURT:· Good morning.

12· · · · · · · · · THE WITNESS:· Good morning, sir.

13· · · · · · · · · THE COURT:· Please state your full name.

14· · · · · · · · · THE WITNESS:· My full name is John Simon

15· ·Buckleton, last name spelled B-u-c-k-l-e-t-o-n.

16· · · · · · · · · THE COURT:· Thank you.

17· · · · You may proceed, counsel.

18· · · · · · · · · MS. DELLA MAGGIORE:· Thank you.

19· · · · · · · · · · · ·DIRECT EXAMINATION

20· · · · · · · · · BY MS. DELLA MAGGIORE:· Q.· ·Dr. Buckleton,

21· ·please tell us your occupation?

22· ·A.· ·I'm a forensic scientist, employment of the New Zealand

23· ·government.

24· ·Q.· ·How long have you held that position?

25· ·A.· ·Since 1983.

26· ·Q.· ·And could you please state your prior education as it

27· ·pertains to DNA analysis?

28· ·A.· ·My formal degrees are a Ph.D in chemistry from the

·1· ·University of Auckland.· I have another, a DSC, British

·2· ·Commonwealth degree, it's called a doctor of science, no

·3· ·equivalent in America, but the highest degree in the British

·4· ·Commonwealth system.· Neither of those are in DNA.· They

·5· ·precede the DNA era.

·6· · · · My specific exposure to DNA comes from working in the

·7· ·United Kingdom on the team that was actually developing DNA

·8· ·for casework, in the very first inception of it.

·9· · · · · · · · · MS. BELES:· This is becoming nonresponsive to

10· ·education.

11· · · · · · · · · THE COURT:· It is, but it's -- inevitable

12· ·these questions will be asked regarding his experience.· I'll

13· ·allow the question.

14· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·What other academic

15· ·qualifications do you have?

16· ·A.· ·Those are my academic qualifications, my highest ones.

17· ·I have lower ones, BSC and MSC in chemistry from the

18· ·University of Auckland.

19· ·Q.· ·And then could you please tell us your employment

20· ·record?

21· ·A.· ·I've been employed by the New Zealand government since

22· ·1983 but that employment is broken.· I've had four periods of

23· ·employment in the United Kingdom and one in the USA in 1995.

24· ·Q.· ·Could you please provide us some details as it pertains

25· ·to United Kingdom?

26· ·A.· ·I worked for the Forensic Science Services in the United

27· ·Kingdom.· It's held various different names over that time.

28· ·And I was employed in resurgent teaching in the field of DNA

·1· ·evidence interpretation.

·2· ·Q.· ·And when did you do that?

·3· · · · That was in the United Kingdom, correct?

·4· ·A.· ·Yes.

·5· ·Q.· ·When?

·6· ·A.· ·'88, '93, '95, and '01.

·7· ·Q.· ·And you mentioned your employment once in the U.S.,

·8· ·could you please tell us about that?

·9· ·A.· ·I worked at North Carolina State University for

10· ·Professor Bruce Weir on the interpretation of DNA evidence.

11· ·Q.· ·And so what other -- what further employment have you

12· ·had?

13· ·A.· ·I think that's -- that's it.

14· ·Q.· ·Okay.· Who is Professor Weir?

15· ·A.· ·Professor Weir is a highly respected authority in the

16· ·area of population genetics.

17· ·Q.· ·And so what sort of work did you do with him as it

18· ·pertains to DNA analysis?

19· ·A.· ·At the time in 1995, we were in the midst of what was

20· ·then termed "the DNA wars," where it was being argued whether

21· ·we could estimate the frequency of certain genotypes in the

22· ·human population.· And Professor Weir was the leader in this

23· ·field and I was working with him on that subject.

24· ·Q.· ·Have you also published any writings as it pertains to

25· ·DNA analysis?

26· ·A.· ·Yes, I have.

27· ·Q.· ·Please tell us about those.

28· ·A.· ·I've published, I think, 193 referee'd publications. I

·1· ·don't have an exact count, about half of those would be on

·2· ·DNA.

·3· ·Q.· ·When you say "referee'd" --

·4· ·A.· ·Referee'd is an academic term when you submit a paper

·5· ·for publication and it is viewed by two anonymous referees;

·6· ·if permitted, it is then published.

·7· ·Q.· ·So then that would be published in what type of -- what

·8· ·type of organizations publish those?

·9· ·A.· ·There are a number of scientific journals that publish

10· ·such papers.

11· ·Q.· ·Do you -- those also become published -- strike that.

12· · · · As far as your training of others for purposes of DNA

13· ·analysis, what can you elaborate on there?

14· ·A.· ·I've been training forensic scientists around the world

15· ·in DNA analysis since 1988.· Over the last three years I've

16· ·been living in the United States and have run something of

17· ·the order of 70 STRmix training courses in the United

18· ·States.

19· ·Q.· ·Besides about 193 referee'd academic publications you

20· ·have had, have you also written other papers on the subject

21· ·of DNA analysis?

22· ·A.· ·Yes, I have.

23· ·Q.· ·Could you tell us about those?

24· ·A.· ·I provided you with I think my CV which lists a number

25· ·of unreferee'd publications that I consider significant.

26· ·I've also published a number of books of relevance, one on

27· ·DNA evidence interpretation.

28· ·Q.· ·Where was that book published?

·1· ·A.· ·CRC Press and, I'm not sure, I think it might be New

·2· ·York Interalia.

·3· ·Q.· ·In -- would it be 2017 you were also stationed at the

·4· ·University of Washington?

·5· ·A.· ·Well, living in Maryland, but working for the University

·6· ·of Washington in Seattle.

·7· ·Q.· ·Let's go back a bit.

·8· · · · Your current employment is with the government in New

·9· ·Zealand; is that correct?

10· ·A.· ·Yes.

11· ·Q.· ·So what is it -- how was it that you came to the United

12· ·States I believe you said in 2014?

13· ·A.· ·I came to the United States in 2014 to assist with the

14· ·transition to probalistic genotyping in the United States.

15· ·Q.· ·Still under the employ of the New Zealand government,

16· ·correct?

17· ·A.· ·I --

18· · · · · · · · · MS. BELES:· I'm sorry, I move to strike the

19· ·last portion because it assumes fact not in evidence

20· ·regarding transitioning to probalistic genotype DNA testing.

21· ·It assumes that is occurring.

22· · · · · · · · · THE COURT:· Overruled.

23· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·So if we could go

24· ·back.· If you could answer that last question.

25· · · · When you came here in 2014 to the United States, you

26· ·were still under the employ of and currently under the employ

27· ·of the government of New Zealand, correct?

28· ·A.· ·Yes.

·1· ·Q.· ·What was the purpose for your arriving in the United

·2· ·States in 2014?

·3· ·A.· ·Various organizations within the United States were

·4· ·starting to purchase STRmix.

·5· ·Q.· ·Like who?

·6· ·A.· ·The first U.S. organization to use STRmix was United

·7· ·States Army Criminal Investigation Laboratory.

·8· ·Q.· ·So that was one of the various organizations who were

·9· ·purchasing STRmix; is that correct?

10· ·A.· ·Yes.

11· ·Q.· ·Was that your sole and only purpose to come here in 2014

12· ·to the United States?

13· ·A.· ·It was to support those organizations that were

14· ·transitioning to STRmix.

15· ·Q.· ·Have you been previously qualified to testify as an

16· ·expert in DNA analysis?

17· ·A.· ·Yes.

18· ·Q.· ·Where?

19· ·A.· ·Within America a number of times and in the United

20· ·Kingdom, Netherlands, Australia, and New Zealand.

21· ·Q.· ·When you say a number of times in the United States, can

22· ·you give us any certain quantitative amount?

23· ·A.· ·Have I given you a list of my testimonies?· I thought I

24· ·had.· It appears in my CV.

25· · · · · · · · · (People's Exhibit Number 1 was introduced into

26· · · · · · · · · evidence, a curriculum vitae.)

27· · · · · · · · · MS. DELLA MAGGIORE:· Having been previously

28· ·marked as People's Exhibit 1, showing defense counsel the CV.

·1· · · · · · · · · MS. BELES:· Received.

·2· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Familiar with what

·3· ·is in People's Exhibit 1?

·4· ·A.· ·Yes.

·5· ·Q.· ·What is that?

·6· ·A.· ·My curriculum vitae.

·7· ·Q.· ·Is that up to date?

·8· ·A.· ·Yes.

·9· ·Q.· ·You prepared that, correct?

10· ·A.· ·Yes.

11· ·Q.· ·So are you needing to review that to formulate an answer

12· ·to about how many times you've been qualified as DNA expert?

13· ·A.· ·There are eight times in the STRmix era.· I was actually

14· ·qualified on an unrelated set of issues in 1995.

15· ·Q.· ·When you say unrelated issues, what do you mean?

16· ·A.· ·At that time the issues related to population genetics,

17· ·not mixtures.

18· ·Q.· ·Okay.· So at least eight times previously you qualified

19· ·as an expert as it pertained to STRmix; is that accurate?

20· ·A.· ·Yes.

21· ·Q.· ·About how many times have you been previously qualified

22· ·as an expert in DNA analysis and STRmix in the -- between the

23· ·UK, Australia, and Netherlands?

24· ·A.· ·I don't know, a large number.

25· ·Q.· ·A larger number than eight?

26· ·A.· ·Yes, one in the Netherlands, one in the UK, and a very

27· ·large number in Australia or New Zealand.

28· ·Q.· ·Okay.· I know I have focused on your expertise in DNA

·1· ·analysis.· If we could go into your training, background, and

·2· ·education as it pertains to STRmix expertise.

·3· · · · Tell us about that, what training, background, or

·4· ·expertise do you have as it pertains to STRmix and its

·5· ·analysis?

·6· ·A.· ·So the answer is going to be relating to background, not

·7· ·training.

·8· ·Q.· ·Okay.

·9· ·A.· ·I'm one of the three creators of STRmix and I've been

10· ·intimately involved with the development and deployment and

11· ·testing of STRmix from about 2011.

12· ·Q.· ·To the present?

13· ·A.· ·To the present.

14· ·Q.· ·So you helped create it?

15· ·A.· ·Yes.

16· ·Q.· ·And why was that?

17· · · · · · · · · MS. BELES:· Objection, vague.

18· · · · · · · · · THE COURT:· Sustained.

19· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Why was it that you

20· ·created -- helped to create STRmix?

21· · · · · · · · · MS. BELES:· Same objection.

22· · · · · · · · · THE COURT:· The witness appears to understand

23· ·the question.· Overruled.

24· · · · · · · · · THE WITNESS:· In 2009, the Melbourne

25· ·laboratory in Australia was closed due to concerns about DNA

26· ·interpretation.· As a consequence of that closure of the

27· ·laboratory there was created a standardization project across

28· ·Australia and New Zealand.· Collectively Australia and New

·1· ·Zealand are termed Australasia.· I was one of the two people

·2· ·on the project.· We were tasked to create software for DNA

·3· ·analysis.· A third person has been added to that team which

·4· ·is why I'm one of the three creators.

·5· ·Q.· ·And so for how long is it, Dr. Buckleton, that you have

·6· ·been engaged in DNA analysis in the forensic world?

·7· ·A.· ·Since 1988.

·8· ·Q.· ·And so the People would -- People's Exhibit 1, the

·9· ·curriculum vitae you have, does that accurately represent

10· ·your training and experience and qualifications as it

11· ·pertains to DNA analysis and the utilization of STRmix?

12· ·A.· ·Yes.

13· · · · · · · · · MS. DELLA MAGGIORE:· Your Honor, the People at

14· ·this time would like to admit the CV into evidence.

15· · · · · · · · · MS. BELES:· For the purposes of the Kelly

16· ·hearing only, I do not object.

17· · · · · · · · · THE COURT:· People's Exhibit Number 1 is

18· ·admitted.

19· · · · · · · · · (People's Exhibit Number 1 was received in

20· · · · · · · · · evidence.)

21· · · · · · · · · MS. DELLA MAGGIORE:· At this time, the People

22· ·would like to proffer Dr. John Buckleton an expert in

23· ·forensic DNA analysis and in STRmix specifically.

24· · · · · · · · · MS. BELES:· As indicated previously, Your

25· ·Honor, I preserve to conduct my voir dire, such designation,

26· ·into one cross-examination.

27· · · · · · · · · THE COURT:· Why don't you go ahead and

28· ·continue with your questioning then, I suppose at some point

·1· ·you could make a motion to strike.

·2· · · · · · · · · MS. BELES:· Thank you.

·3· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Dr. Buckleton, what

·4· ·is STRmix?

·5· ·A.· ·STRmix is a software program.

·6· · · · · · · · · MS. BELES:· Could we have a timeout?

·7· · · · As I was making my objection, I did not get the specific

·8· ·language that the prosecutor made for the area of expertise

·9· ·the expert is in.

10· · · · · · · · · MS. DELLA MAGGIORE:· DNA analysis and STRmix.

11· · · · · · · · · MS. BELES:· Thank you.

12· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Dr. Buckleton, what

13· ·is STRmix?

14· ·A.· ·STRmix is a software program.

15· ·Q.· ·What does it aid in?

16· ·A.· ·It assists the expert interpreting DNA profiles.

17· ·Q.· ·And so does it determine what DNA types could have made

18· ·up a certain DNA profile and the probability of each?

19· · · · · · · · · MS. BELES:· Objection, leading.

20· · · · · · · · · MS. DELLA MAGGIORE:· This is an expert.

21· · · · · · · · · MS. BELES:· I think -- I don't believe that

22· ·all leading questions are appropriate of experts.· I believe

23· ·that foundation needs to be laid.

24· · · · · · · · · THE COURT:· Matter submitted?

25· · · · · · · · · MS. DELLA MAGGIORE:· Submitted.

26· · · · · · · · · THE COURT:· Submitted?

27· · · · · · · · · MS. BELES:· Submitted.

28· · · · · · · · · THE COURT:· Objection overruled.

·1· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Again, I want to

·2· ·make sure we had the answer to that.· Does STRmix determine

·3· ·what DNA types could have made up a certain DNA profile and

·4· ·the probability of each?

·5· ·A.· ·Yes.

·6· ·Q.· ·Is STRmix a form of probalistic genotyping?

·7· ·A.· ·Yes.

·8· · · · · · · · · MS. BELES:· Same objection, leading.

·9· · · · · · · · · THE COURT:· It is, but I'm going to allow the

10· ·question.

11· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Your answer was yes,

12· ·it is a form of probalistic genotyping?

13· ·A.· ·Yes.

14· ·Q.· ·What is probalistic genotyping?

15· ·A.· ·Probalistic genotyping is a collective noun for a number

16· ·of methods that interpret simple through complex DNA

17· ·profiles.

18· ·Q.· ·Does STRmix play any role whatsoever in the detection or

19· ·discovery of a DNA profile?

20· ·A.· ·No.

21· ·Q.· ·So, in other words, is it -- is it fair to state that

22· ·STRmix interprets the DNA profile that has been presented to

23· ·the computer program known as STRmix?

24· · · · · · · · · MS. BELES:· Objection, leading, Your Honor.

25· ·It perhaps --

26· · · · · · · · · THE COURT:· You are getting into greater

27· ·detail at this point.· This is beyond the preliminary matters

28· ·that may probably be the subject of leading questions on

·1· ·direct.· So I'll ask -- I will sustain that objection.

·2· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Were there certain

·3· ·areas of data ambiguity prior to the creation and

·4· ·implementation of STRmix?

·5· · · · · · · · · MS. BELES:· Objection, vague.

·6· · · · · · · · · THE COURT:· Sustained.

·7· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·What is it that

·8· ·STRmix is capable of doing that possibly prior DNA analyses

·9· ·were not able to do?

10· · · · · · · · · MS. BELES:· Your Honor, for clarity, I object.

11· ·No foundation of what the prior DNA testing could do.· There

12· ·has to be a foundation.

13· · · · I understand the question, but I think the evidence has

14· ·to be present first.

15· · · · · · · · · THE COURT:· It does assume that there are

16· ·limitations that were overcome and we don't know what those

17· ·are, so sustained.

18· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Previous DNA

19· ·analyses that have been utilized in the United States, were

20· ·there certain limitations that you're aware of?

21· ·A.· ·Yes.

22· ·Q.· ·What are those?

23· ·A.· ·Specifically to the state of California, California

24· ·Department of Justice, used the RMP method -- RMP method.

25· ·This method was thoroughly reliable and thoroughly effective,

26· ·but did not utilize all the information present in a DNA

27· ·profile.· By utilizing all the information present in a DNA

28· ·profile, we enhance the system's ability to differentiate

·1· ·between true and false standards.

·2· ·Q.· ·How does it do that?

·3· ·A.· ·It does it using a method of probalistic genotyping

·4· ·whereby it assists the probability of the data given various

·5· ·genotype proposals.

·6· ·Q.· ·And so what would you say was the date of the creation

·7· ·of STRmix?

·8· ·A.· ·STRmix itself was created in 2011 and was first used in

·9· ·live casework in 2012.

10· ·Q.· ·In what jurisdiction?

11· ·A.· ·Simultaneously in LA; Australia; and Auckland, New

12· ·Zealand.

13· ·Q.· ·And then where -- where else was it used?

14· ·A.· ·I have a list of laboratories, 44 laboratories

15· ·worldwide, 30 in the United States.· The first United States

16· ·jurisdiction to go live was the U.S. Army Criminal

17· ·Investigation Laboratory in November 2014.

18· · · · · · · · · MS. BELES:· Your Honor, if the Court is going

19· ·to rely upon this, I am objecting as hearsay unless there is

20· ·a foundation of how Dr. Buckleton knows when laboratories

21· ·used STRmix.· I think there is a hearsay objection to be

22· ·lodged.

23· · · · · · · · · THE COURT:· Even with an expert?

24· · · · · · · · · MS. BELES:· Yes, given People versus

25· ·Sanchez.

26· · · · · · · · · THE COURT:· It's not case specific.

27· · · · · · · · · MS. BELES:· Okay.· I'm lodging the objection.

28· · · · · · · · · THE COURT:· Overruled.

·1· · · · · · · · · MS. BELES:· May it be a standing one?

·2· · · · · · · · · THE COURT:· Yes.

·3· · · · · · · · · MS. BELES:· Thank you.

·4· · · · · · · · · (People's Exhibit Number 2 was introduced into

·5· · · · · · · · · evidence, a document.)

·6· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Dr. Buckleton, I'm

·7· ·going to show you what has been marked People's Exhibit 2.

·8· ·Could you tell us what that is?

·9· ·A.· ·This is a list of laboratories that are using STRmix in

10· ·casework and the dates they went live.

11· ·Q.· ·And how is it that you are familiar with such

12· ·laboratories contained in People's Exhibit 2?

13· ·A.· ·In some, I'm very directly involved in the training and

14· ·implementation.

15· ·Q.· ·Which ones?

16· ·A.· ·Oh, there are 44 on this list.

17· ·Q.· ·So which of the 44 were you directly involved with?

18· ·A.· ·All right.· I'm just going down the U.S. list, if you

19· ·will forgive me.

20· · · · I have been directly involved in either training or

21· ·implementation in all the U.S. laboratories that are

22· ·currently using STRmix.

23· ·Q.· ·So how many of them are there?

24· ·A.· ·There are 30 in the United States.

25· ·Q.· ·And when you say "directly involved," what does that

26· ·mean?

27· ·A.· ·I have personally trained their staff and/or personally

28· ·been involved in their implementation and validation.

·1· ·Q.· ·And when you say personally involved in their

·2· ·implementation and validation, having said validation has

·3· ·taken place, what does that mean for all 30 of those

·4· ·laboratories in the United States as it pertains to STRmix?

·5· ·A.· ·There are a number of aspects to your question.

·6· · · · · · · · · MS. BELES:· Then I would move, object as

·7· ·compound.

·8· · · · · · · · · THE COURT:· Sustained.

·9· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·When a United States

10· ·laboratory becomes validated in the use of STRmix, what does

11· ·that mean?

12· · · · · · · · · MS. BELES:· Objection, no foundation what

13· ·validation is.· That has not been explained.

14· · · · · · · · · THE COURT:· That is what is being asked.

15· · · · · · · · · MS. BELES:· Okay.

16· · · · · · · · · THE COURT:· Overruled.

17· · · · · · · · · THE WITNESS:· Validation in the United States

18· ·is done to the SWGDAM, S-W-G-DAM, 2015 guidelines, and for

19· ·the Court's information, that actually applies to those labs

20· ·that went live prior to 2015.· The final stage of validation

21· ·after completing the requirements detailed by SWGDAM are

22· ·signed off by the technical leader.· After that time, the

23· ·laboratory is then permitted to use the software in casework.

24· ·My personal involvement in that usually is -- comes at the

25· ·stage of either review or problem solving during the

26· ·validation and implementation process.

27· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·And so beyond your

28· ·having been directly involved in the validation of the 30

·1· ·United States laboratories, what other laboratories have you

·2· ·been directly involved in the training and implementation and

·3· ·validation of?

·4· ·A.· ·Just may clarify, the 30 U.S. laboratories, I have

·5· ·definitely been involved in the training of all of them and

·6· ·in the validation of many of them.

·7· · · · Outside the United States, I have been involved in the

·8· ·training of all the other laboratories and in the validation

·9· ·of some of them.

10· ·Q.· ·Okay.· Let's -- let's be specific.· Let me go back to

11· ·the United States.

12· · · · Could you please tell us your -- those 30 laboratories

13· ·in the United States that you mentioned previously, if you

14· ·could list them for us.

15· · · · · · · · · THE COURT:· Are they listed in the exhibit?

16· · · · · · · · · THE WITNESS:· Yes, they are listed in the

17· ·exhibit.

18· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Are they listed in

19· ·the exhibit?

20· ·A.· ·Yes, they are.

21· ·Q.· ·Very good.

22· · · · · · · · · MS. BELES:· To which I'm going to object based

23· ·on my prior objection of hearsay, just so the Court knows.

24· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·And let's be very

25· ·specific with those labs that you have been involved in the

26· ·training, implementation and validation process outside of

27· ·the United States.

28· ·A.· ·You would like -- they also appear on this list.

·1· ·Q.· ·Please briefly tell us how many, where they are located?

·2· ·A.· ·Okay.· Thank you.

·3· · · · There are eight in Australasia and five in the rest of

·4· ·the world, the rest of the world includes Ireland, England,

·5· ·Scotland, and Canada.

·6· ·Q.· ·And in all of these 44 laboratories that are on People's

·7· ·Exhibit 2, are they all forensic laboratories engaged -- let

·8· ·me ask you that, are they all forensic laboratories?

·9· ·A.· ·Yes.

10· ·Q.· ·You mentioned previously SWGDAM, could you please tell

11· ·us what that stands for?

12· ·A.· ·Scientific working group DNA analysis methods.· And in

13· ·order to make it possible to say it, we usually insert an

14· ·"I," so S-W-I-G-D-A-M.

15· ·Q.· ·SWGDAM?

16· ·A.· ·SWGDAM.

17· ·Q.· ·Tell us what that entity is?

18· ·A.· ·It's an FBI sponsored and organized group of about 70

19· ·scientists drawn from north America and invited guests who

20· ·the FBI utilize to develop guidelines for DNA analysis.

21· ·Q.· ·Who makes up that committee, if you will?

22· ·A.· ·There are about 70 persons on that and they are drawn

23· ·from practitioners across North America; and academics and

24· ·invited guests from the rest of the world.

25· ·Q.· ·And so is it fair to state that they are scientists that

26· ·represent federal, state, and local forensic DNA laboratories

27· ·in the United States and Canada?

28· · · · · · · · · MS. BELES:· Leading.

·1· · · · · · · · · THE COURT:· Overruled.

·2· · · · · · · · · THE WITNESS:· Yes.

·3· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·And so is it also

·4· ·fair to state that they provide the guidelines for the

·5· ·validation of probalistic genotyping systems?

·6· · · · · · · · · MS. BELES:· Objection, leading.

·7· · · · · · · · · THE COURT:· Overruled.

·8· · · · · · · · · THE WITNESS:· Yes.

·9· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·And the most recent

10· ·guidelines as it would pertain to the use of probalistic

11· ·genotyping and STRmix, what date would those guidelines have

12· ·been published?

13· ·A.· ·It's the only -- only guidelines.· It's not the most

14· ·recent.· It's the original and it's 2015.

15· ·Q.· ·And what -- what has basically -- have they made any

16· ·recommendations regarding STRmix or its simple guidelines

17· ·that a laboratory must follow?

18· ·A.· ·I don't believe STRmix is specifically mentioned in them

19· ·at all.· There are guidelines that labs are expected to

20· ·follow for the validation of any probalistic genotyping

21· ·system.· Probalistic genotyping can be abbreviated in the

22· ·United States as prob gen or PG if any of you wish to shorten

23· ·it.

24· ·Q.· ·And so could you please explain when you talk about the

25· ·30 forensic laboratories in the United States, do you have

26· ·any familiarity with whether or not those 30 laboratories

27· ·meet or exceed or something other than what the guidelines

28· ·set out by SWGDAM?

·1· ·A.· ·All those laboratories meet or exceed the guidelines set

·2· ·out by SWGDAM.

·3· ·Q.· ·How about State of California Department of Justice?

·4· ·A.· ·Yes, it does.

·5· ·Q.· ·What familiarity do you have with the California

·6· ·Department of Justice as it pertains to STRmix?

·7· ·A.· ·I've been involved in training I believe six cohorts of

·8· ·their staff and involved in their -- with their validation

·9· ·group in multiple events regarding the validation.

10· ·Q.· ·Are there any other scientific working groups or

11· ·organizations made up of scientists that have likewise, like

12· ·SWGDAM, formulated guidelines for PG or prob gen?

13· ·A.· ·Yes.

14· ·Q.· ·Tell us about those.

15· ·A.· ·With specific regard to the United States, there are two

16· ·with published guidelines.· They are the International

17· ·Society of Forensic Geneticists which may be abbreviated ISFG

18· ·and the President's Council of Advisors on Science and

19· ·Technology which may be abbreviated PCAST.· Those two groups

20· ·have published guidelines.· There is another United States

21· ·based organization called OSAC, O-S-A-C, that has an advanced

22· ·draft about which I'm not at liberty to speak.

23· ·Q.· ·And so what is the interplay, if you will -- of those

24· ·two organizations, ISFG and the PCAST, what is the interplay

25· ·with probalistic genotyping?

26· · · · · · · · · MS. BELES:· Objection, vague "interplay."

27· · · · · · · · · THE COURT:· Sustained.

28· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·So ISFG and PCAST is

·1· ·it fair to state are given certain guidelines to follow when

·2· ·utilizing PG?

·3· ·A.· ·Yes.

·4· ·Q.· ·Who makes up the ISFG?

·5· ·A.· ·In the specific regard that I'm speaking it's the ISFG

·6· ·DNA commission and that is a group of scientists who are

·7· ·appointed to the commission by invitation.· The lead author

·8· ·of the published guidelines is Dr. Michael Cobel who is a

·9· ·United States citizen who works at the National Institute of

10· ·Science and Technology, abbreviated NIST.

11· ·Q.· ·And so is ISFG, does -- does that group work similarly

12· ·to SWGDAM or does -- do you understand my question?

13· · · · · · · · · MS. BELES:· Objection, vague.

14· · · · · · · · · THE COURT:· Did you understand the question?

15· · · · · · · · · THE WITNESS:· Yes, sir.

16· · · · · · · · · THE COURT:· Overruled.

17· · · · · · · · · THE WITNESS:· In the broad sense they are

18· ·similar.· SWGDAM is very much practical and practitioner

19· ·focused.· Where ISFG tended to be little more high level in

20· ·its recommendations.

21· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·What does that mean?

22· ·A.· ·SWGDAM very much spelled out the exact experiments it

23· ·wanted for validation.· ISFG did not do that.

24· ·Q.· ·What, if any, significance does PCAST have as it

25· ·pertains to prob gen?

26· ·A.· ·PCAST was a very high profile publication, being the

27· ·president's council, it appeared, I think just drawing on my

28· ·memory, October 2016.· It was not specifically on prob gen,

·1· ·but it did have an extensive section on that.

·2· · · · I apologize for my accent.

·3· ·Q.· ·Did -- did ISFG endorse the use of prob gen?

·4· ·A.· ·Yes.

·5· · · · · · · · · MS. BELES:· I object still as hearsay.

·6· · · · · · · · · THE COURT:· Is this your Sanchez objection,

·7· ·counsel?

·8· · · · · · · · · MS. BELES:· If the Court is taking that as

·9· ·truth, then in order to -- to discuss the Kelly prong, yes,

10· ·it is still Sanchez.

11· · · · · · · · · MS. DELLA MAGGIORE:· As far as the People are

12· ·aware, in Sanchez that is case specific and also would have

13· ·to pertain to material that would be meant for testimonial

14· ·purposes.

15· · · · Furthermore, this is an expert who certainly is involved

16· ·in and utilizes the guidelines contained in ISFG writings

17· ·similarly as SWGDAM.· This isn't hearsay.

18· · · · · · · · · THE COURT:· Matter submitted?

19· · · · · · · · · MS. DELLA MAGGIORE:· Submitted.

20· · · · · · · · · THE COURT:· Submitted?

21· · · · · · · · · MS. BELES:· Your Honor, if the Court is taking

22· ·it for truth, then it is being offered as hearsay.· It's not

23· ·being offered as a basis for an opinion as to whether or not

24· ·any of these organizations, you know, certified STRmix.· Yes,

25· ·I'm objecting as hearsay.

26· · · · We submit it

27· · · · · · · · · THE COURT:· I don't think your objection goes

28· ·to the question.· But with regard to your Sanchez objection,

·1· ·overruled.

·2· · · · · · · · · THE WITNESS:· May I be reminded of the

·3· ·question, please?

·4· · · · · · · · · MS. DELLA MAGGIORE:· I would like that as

·5· ·well.· Let's go back.· Can we have the question read back.

·6· · · · · · · · · (Court reporter read back.)

·7· · · · · · · · · THE WITNESS:· My answer is yes.

·8· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Dr. Buckleton,

·9· ·following the creation and development of STRmix, did it go

10· ·through developmental validation?

11· ·A.· ·Yes.

12· ·Q.· ·Could you please elaborate on what developmental

13· ·validation is as it pertains to STRmix?

14· ·A.· ·Again, we have followed the developmental validation as

15· ·outlined by the SWGDAM guidelines.· There are a number of

16· ·requirements and for brevity at this point I will mention I

17· ·think two of the highlights.· One of those is to repeat a

18· ·large number of the calculations by hand and another is to

19· ·trial the system with a large number of true donors and known

20· ·nondonors.

21· ·Q.· ·And so was that done -- was a developmental validation

22· ·done following the creation and development of STRmix?

23· ·A.· ·Developmental validation was done for each of the

24· ·commercially-released versions of STRmix, so it has been done

25· ·more than once.

26· ·Q.· ·Did you author any research papers as it pertains to the

27· ·developmental validation of STRmix?

28· ·A.· ·Yes.

·1· ·Q.· ·Could you elaborate on that for us?

·2· ·A.· ·I was a coauthor in the published developmental

·3· ·validation of STRmix which appears in Forensic Science

·4· ·International Genetics.

·5· ·Q.· ·What is Forensic Science International Genetics in the

·6· ·regard of the publication that you're talking about?

·7· ·A.· ·It is a scientific journal.

·8· ·Q.· ·And are there other published articles that have

·9· ·appeared in various scientific publications contained in the

10· ·forensic science committee regarding the validation of

11· ·STRmix?

12· ·A.· ·Well, there are 24 publications that relate to STRmix.

13· ·They are not all specifically on the validation but certainly

14· ·some of them are.

15· ·Q.· ·And so these -- these 24 publications, are those peer

16· ·reviewed publications?

17· ·A.· ·They are all peer reviewed publications.

18· ·Q.· ·What does that mean -- what does "peer reviewed" mean in

19· ·the scientific community?

20· ·A.· ·Peer reviewed is your publication is submitted to two

21· ·anonymous referees selected by the editor.· Those referees

22· ·provide the editor with a report that may require amendments

23· ·of further work.· And if that is done to the satisfaction of

24· ·the editor, the article is then published.

25· ·Q.· ·And those 24 peer reviewed publications that you just

26· ·mentioned, were those considered to be favorable or not

27· ·when -- as it pertains to STRmix?

28· · · · · · · · · MS. BELES:· Objection, vague.

·1· · · · · · · · · THE COURT:· The word "favorable," sustained.

·2· · · · Counsel, let me remind everyone we are at the first

·3· ·prong of this Kelly hearing and what the scope of the issues

·4· ·are.· That is why I began the morning reminding everyone and

·5· ·everyone concurring as to the scope of the issues at this

·6· ·hearing.

·7· · · · Next question.

·8· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Do those 24 peer

·9· ·reviewed publications endorse the general acceptance of

10· ·STRmix?

11· · · · · · · · · MS. BELES:· Objection, A, leading; B, the

12· ·province of the Court.

13· · · · · · · · · THE COURT:· Overruled.

14· · · · · · · · · THE WITNESS:· Those 24 publications outline

15· ·all the algorithms and usage of STRmix and the underpinnings

16· ·of the utilization of it.· I guess your question was do they

17· ·endorse; and yes, they do.· I'm an author on them all.

18· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·But are you the only

19· ·author?

20· ·A.· ·No.

21· ·Q.· ·So who are the other authors?

22· · · · · · · · · MS. BELES:· Objection, compound, 24

23· ·publications.

24· · · · · · · · · THE COURT:· Overruled.

25· · · · · · · · · THE WITNESS:· I've compiled a list of these

26· ·publications for you that does have the names of the other

27· ·authors.· But in brief, they constitute the three developers

28· ·often with other external persons.

·1· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Who are those?

·2· ·A.· ·They range.· For instance, there are some FBI authors on

·3· ·one of them and other meritorious scientists around the

·4· ·world.

·5· ·Q.· ·So if we could begin to talk about at what point in DNA

·6· ·analysis does STRmix enter the picture?

·7· ·A.· ·In --

·8· ·Q.· ·At what point is it used?

·9· ·A.· ·Indeed.· The analysis of DNA proceeds exactly as it has

10· ·for a great many years in the development of an STR profile.

11· ·The profile is produced by the machine electronically and it

12· ·is that electronic data that STRmix takes as its import.

13· ·There are also some inputs from the human operator and then

14· ·STRmix proceeds with its analysis.

15· ·Q.· ·So is it fair to state the DNA gets processed using STR

16· ·analysis or PCR analysis, but profiles are evaluated using

17· ·STRmix?

18· ·A.· ·Yes.

19· ·Q.· ·What is the STRmix model based on?

20· ·A.· ·The STRmix model is based on established mathematical

21· ·principles and models for the behavior of PCR.

22· ·Q.· ·So if you could please tell us what is STRmix biological

23· ·model?

24· ·A.· ·The biological model is based on interpreting the

25· ·quantity and quality of DNA in the profile.

26· ·Q.· ·Are there basically two steps in the STRmix biological

27· ·model, one being deconvolution and the second being

28· ·statistical analysis?

·1· ·A.· ·Yes.

·2· · · · · · · · · MS. BELES:· Leading.

·3· · · · · · · · · THE COURT:· We are -- we are going to get into

·4· ·this area which I'm not certain is within the scope of the

·5· ·first prong of the Kelly analysis.

·6· · · · · · · · · MS. DELLA MAGGIORE:· However --

·7· · · · · · · · · THE COURT:· Next question.

·8· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Could you tell us

·9· ·what deconvolution is?

10· ·A.· ·In STRmix, deconvolution generates a weight for each

11· ·genotype proposal.· Essentially it is attempting to determine

12· ·those genotypes that best explain the data.

13· ·Q.· ·And so what is the process involved in deconvolution?

14· ·A.· ·Markov chain Monte Carlo, that might be abbreviated

15· ·MCMC.

16· ·Q.· ·Is that an algorithm?

17· ·A.· ·Yes.

18· ·Q.· ·How long has it been around for?

19· ·A.· ·In its totality it's been around since 1950, but its

20· ·roots date back to 1908.

21· ·Q.· ·What happened in 1908 with MCMC?

22· ·A.· ·Dr. Andrey Markov published his first paper on the

23· ·analysis of Russian poetry.· He was seeking to determine

24· ·whether the next letter was a vowel or consonant based on the

25· ·previous letter and he developed the Markov chain.

26· ·Q.· ·And I believe you said something took place in the 1950s

27· ·pertaining to MCMC, what is that?

28· ·A.· ·Specifically the Monte Carlo aspect was added algorithms

·1· ·by scientists.· So the 1940s, during the production of the

·2· ·atomic bomb for the second World War, the two were put

·3· ·together in a Markcov chain Monte Carlo or MCMC in the 1950s

·4· ·and could not be implemented until the advent of fast

·5· ·computing in the 1970s.· From then on, it has been a very

·6· ·prevalent tool in science.

·7· ·Q.· ·And so has it been widely accepted by scientists?

·8· ·A.· ·Yes.

·9· ·Q.· ·And is MCMC utilized in any other sort of academia or

10· ·common everyday subjects?

11· ·A.· ·Yes.

12· ·Q.· ·Could you please tell us about that?

13· ·A.· ·Yes.

14· · · · MCMC is a -- is one of the dominant tools used for this

15· ·type of problem in engineering, molecular genetics, physics,

16· ·linguistics, weather predicting, stock market, sports

17· ·betting, and my favorite is code breaking.

18· ·Q.· ·Why is that your favorite?

19· ·A.· ·I think it's just lovely.

20· ·Q.· ·Did that assist us in any sort of wars that took place?

21· · · · · · · · · MS. BELES:· Objection, relevance, Your Honor.

22· · · · · · · · · THE COURT:· Well, we're talking about reliance

23· ·and I suppose the application does bear on the notion of

24· ·reliance.· Let's -- but as interesting historically, I think

25· ·I'll allow the response.

26· · · · And please, again, Ms. Della Maggiore, keep in mind

27· ·where we are in this hearing, that is what is the scope of

28· ·the hearing and the issues to be addressed.

·1· · · · · · · · · THE WITNESS:· To answer the question, some of

·2· ·the principles involved in Markov chain Monte Carlo were

·3· ·established by Alan Turing who was instrumental in the second

·4· ·World War in breaking the code for the enigma machine which

·5· ·was the German coding machine used in the second World War.

·6· ·And the code breaking group is often accredited with

·7· ·shortening the war by possibly up to a year and saving a

·8· ·great many lives.

·9· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·So when it comes

10· ·to -- so deconvolution in the STRmix model, it -- it simply

11· ·uses MCMC algorithms; fair statement?

12· · · · · · · · · MS. BELES:· Leading, Your Honor.

13· · · · · · · · · THE COURT:· Sustained.

14· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·What is involved in

15· ·the deconvolution process in STRmix is MCMC, correct?

16· · · · · · · · · MS. BELES:· Leading, Your Honor.

17· · · · · · · · · MS. DELLA MAGGIORE:· I'll ask it a different

18· ·way.

19· ·Q.· ·As far as MCMC algorithms as utilized by STRmix, is that

20· ·process -- that step generally accepted in the scientific

21· ·community?

22· ·A.· ·Yes.

23· ·Q.· ·And then onto another step involved in STRmix, would

24· ·that be the -- the statistical analysis that is performed?

25· ·A.· ·Yes.

26· ·Q.· ·What is involved in that step?

27· ·A.· ·That is very much standard mathematics, it essentially

28· ·applied the third lower of probability and follows from

·1· ·Bayes' theorem of 1763.

·2· ·Q.· ·And that statistical analysis that STRmix is engaged in,

·3· ·is that generally accepted in the scientific community?

·4· ·A.· ·Yes.

·5· ·Q.· ·Have -- the scientific principles utilized in STRmix,

·6· ·have they all been peer reviewed?

·7· ·A.· ·Yes.

·8· ·Q.· ·Has the principle of prob gen been around for many

·9· ·years?

10· · · · · · · · · MS. BELES:· Objection, vague "many years."

11· · · · · · · · · THE COURT:· Sustained.

12· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·How long has prob

13· ·gen been around in the scientific community?

14· ·A.· ·Since 1999.

15· ·Q.· ·Is it also -- is prob gen being taught at scientific

16· ·seminars throughout the United States?

17· ·A.· ·Yes.

18· ·Q.· ·And also all over the world, correct?

19· ·A.· ·Yes.

20· ·Q.· ·Could you elaborate on likelihood ratios, what is that?

21· ·A.· ·The likely ratio is the modern and most powerful -- I

22· ·apologize for my accent, is the modern and most powerful

23· ·expert of the weight over evidence.

24· ·Q.· ·The utilization of likelihood ratio, is that something

25· ·generally accepted in the scientific community?

26· ·A.· ·Yes.

27· · · · · · · · · MS. BELES:· Objection, vague and leading.

28· · · · · · · · · THE COURT:· Overruled.

·1· · · · · · · · · THE WITNESS:· Yes.

·2· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·STRmix, is it

·3· ·reliable?

·4· · · · · · · · · MS. BELES:· Vague.

·5· · · · Your Honor, I'm sorry, did I not say it loud enough?

·6· ·Objection, vague.· According to whom?· How?· What does that

·7· ·mean?

·8· · · · · · · · · THE COURT:· Sustained.

·9· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·In your opinion is

10· ·STRmix software reliable?

11· · · · · · · · · MS. BELES:· Same objection.

12· · · · · · · · · THE COURT:· Reliable as to what, counsel?

13· · · · · · · · · MS. DELLA MAGGIORE:· As to the way it computes

14· ·mathematical methodologies.

15· · · · · · · · · THE COURT:· Have you completed your question?

16· · · · · · · · · MS. DELLA MAGGIORE:· Yes.

17· · · · · · · · · THE COURT:· You can answer that.

18· · · · · · · · · THE WITNESS:· I didn't perceive a question.

19· · · · · · · · · THE COURT:· Restate it, please.

20· · · · · · · · · MS. DELLA MAGGIORE:· Certainly.

21· ·Q.· ·Is STRmix software reliable as it pertains to the

22· ·mathematical methodologies that it performs?

23· ·A.· ·Yes.

24· ·Q.· ·And what do you base that opinion on?

25· ·A.· ·Millions of trials.

26· ·Q.· ·Anything other than that millions of trials?

27· ·A.· ·I wrote --

28· · · · · · · · · MS. BELES:· Withdrawn.

·1· · · · · · · · · THE WITNESS:· -- a robust basis in science.

·2· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·And are there any

·3· ·other learned scientific treatises, published papers, books,

·4· ·or other writings that you can cite for us that demonstrate

·5· ·the acceptance of STRmix in the scientific community than

·6· ·what you have already stated?

·7· ·A.· ·Yes.

·8· ·Q.· ·What are those?

·9· ·A.· ·There are a number of authors completely unconnected

10· ·with our group who are utilizing STRmix and are publishing in

11· ·the public domain.

12· ·Q.· ·Elaborate on that.

13· ·A.· ·They appear in the list I gave you.

14· ·Q.· ·What list?

15· ·A.· ·I'm hoping it's a list I have given you.· If not, I

16· ·shall find it.

17· ·Q.· ·Could you, please.

18· ·A.· ·I can tell you without needing to refer they are all one

19· ·group utilizing it in Melbourne, Australia for various

20· ·experiments they are doing.

21· · · · Now there are quite a large number of conference

22· ·presentations being made on the utilization of STRmix.

23· · · · · · · · · THE COURT:· Were you going to ask specific

24· ·questions about each of them or can the list be found at a

25· ·break and you can use the witness's time --

26· · · · · · · · · MS. DELLA MAGGIORE:· Certainly.

27· · · · · · · · · THE COURT:· -- to explore the issues before

28· ·the Court?

·1· · · · Doctor, look for it later and let them ask their

·2· ·questions.

·3· · · · · · · · · THE WITNESS:· Thank you, sir.

·4· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·In your opinion, Dr.

·5· ·Buckleton, does STRmix reliably deconvolute DNA profiles and

·6· ·provide likelihood ratios that can be used for forensic case

·7· ·lab work?

·8· · · · · · · · · MS. BELES:· Objection, leading.

·9· · · · · · · · · THE COURT:· Overruled.

10· · · · · · · · · THE WITNESS:· Yes.

11· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Is it your opinion

12· ·that the science behind it is well established?

13· ·A.· ·Yes.

14· ·Q.· ·And is it fair to state that what STRmix is doing is --

15· ·is improving the ability of forensic labs to confirm or deny

16· ·the identity of DNA samples, particularly when multiple

17· ·sources are involved?

18· · · · · · · · · MS. BELES:· Objection, leading, Your Honor.

19· · · · · · · · · THE COURT:· But it's a request for an expert

20· ·opinion, counsel.· Why would this be an improper question?

21· · · · · · · · · MS. BELES:· It's not a question, it is a

22· ·statement.· And because -- I mean I can deal with it on

23· ·cross, but it seems abundantly clear to me Ms. Della Maggiore

24· ·is using direct quotations for Dr. Buckleton.· So I think

25· ·what was just said was, number one, quite lengthy and perhaps

26· ·compound.· I didn't make that objection.· But secondarily, it

27· ·is -- it is Ms. Della Maggiore saying it, not the doctor.

28· · · · So it is -- it is the very opinion that the Court has to

·1· ·decide whether -- the weight of and on prong one, and so I

·2· ·mean to ask the question of the witness, not give the answer

·3· ·to the witness and ask for affirmation is my request.

·4· · · · · · · · · THE COURT:· Submitted?

·5· · · · · · · · · MS. BELES:· Submitted.

·6· · · · · · · · · THE COURT:· Submitted?

·7· · · · · · · · · MS. DELLA MAGGIORE:· Submitted.

·8· · · · · · · · · THE COURT:· Overruled.

·9· · · · · · · · · THE WITNESS:· Yes.

10· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·Could you tell us,

11· ·Dr. Buckleton, approximately what percentage of North

12· ·American laboratories have now purchased STRmix and if any

13· ·have gone live and that they are using it or in the process

14· ·of validation?

15· ·A.· ·Sixty-five percent.

16· ·Q.· ·So 65 percent are what?

17· ·A.· ·Have purchased.

18· ·Q.· ·And of the 65 percent of the North American laboratories

19· ·that have purchased STRmix, what percentage has actually

20· ·validated it and began to use it in actual casework?

21· ·A.· ·I don't have that as a percentage, but 30 laboratories,

22· ·all laboratory systems.

23· ·Q.· ·Are there other forensic laboratories in North America

24· ·who are in the process of validation?

25· ·A.· ·Yes.

26· ·Q.· ·And are you able to tell us any certain amount of those?

27· ·A.· ·Yes, it's about 70.

28· ·Q.· ·What laboratory would be -- what laboratory in North

·1· ·America would be the longest user of STRmix post validation

·2· ·process?

·3· ·A.· ·The U.S. Army Criminal Investigation Laboratory.

·4· ·Q.· ·When does that date back to?

·5· · · · When did they began using it after the validation

·6· ·process in actual casework?

·7· ·A.· ·I think it was 17:00 on the 30th of November, 2014.

·8· ·Q.· ·Is there --

·9· · · · · · · · · MS. BELES:· I'm sorry, I didn't catch that

10· ·date, November?

11· · · · · · · · · THE WITNESS:· 30th of November, 2014.

12· · · · · · · · · MS. BELES:· Thank you.

13· · · · · · · · · MS. DELLA MAGGIORE:· Q.· ·What would be the

14· ·next, if you're able to state, longest utilizer of STRmix

15· ·post validation process?

16· ·A.· ·Erie County in New York state.

17· ·Q.· ·And is the FBI currently utilizing STRmix?

18· ·A.· ·Yes.

19· ·Q.· ·Are you familiar with when it was that they began to use

20· ·it post validation in actual casework?

21· ·A.· ·Yes.

22· ·Q.· ·When is that?

23· ·A.· ·Am I allowed to look at the list?

24· ·Q.· ·Would that refresh your recollection?

25· ·A.· ·Certainly would.

26· ·Q.· ·Please do so.

27· ·A.· ·They were the fourth lab in the union to go live and

28· ·that was on the 1st of December 2015.

·1· ·Q.· ·So it was the Army, then Erie County, and there is the

·2· ·third, I don't believe we heard who that was?

·3· ·A.· ·San Diego Police Department.

·4· ·Q.· ·Were you at all part of their training or validation

·5· ·process?

·6· ·A.· ·Yes.

·7· ·Q.· ·How so?· What did you do?

·8· ·A.· ·I physically trained their staff and have interacted

·9· ·with their technical lead numerous times between that date

10· ·and currently.

11· ·Q.· ·And so what year did it occur that they began to use it

12· ·in actual casework post validation, if you're familiar?

13· ·A.· ·The 5th of October, 2015.

14· ·Q.· ·As it pertains to the FBI's implementation and use of

15· ·STRmix, does the FBI comport with the SWGDAM guidelines?

16· ·A.· ·Yes.

17· ·Q.· ·And are you familiar with the validation date and use of

18· ·STRmix in actual casework at the Department of Justice

19· ·California?

20· ·A.· ·6th of January, 2016.

21· ·Q.· ·When a laboratory is -- I'm going to formulate a

22· ·different question.· One moment, please.

23· · · · · · · · · (Pause)

24· · · · · · · · · MS. DELLA MAGGIORE:· I have no further

25· ·questions, thank you.

26· · · · · · · · · THE COURT:· Do you want to start fresh after

27· ·lunch?

28· · · · · · · · · MS. BELES:· Whatever the Court wants.

·1· · · · · · · · · THE COURT:· Why don't we do that.

·2· · · · We've had no break this morning.

·3· · · · We'll begin after the lunch hour, 1:30.

·4· · · · · · · · · THE WITNESS:· Thank you, sir.

·5· · · · · · · · · THE COURT:· 1:30.

·6· · · · · · · · · (Lunch recess)

·7· · · · · · · · · THE COURT:· Ready to proceed, Ms. Beles?

·8· · · · · · · · · MS. BELES:· Yes.

·9· · · · · · · · · THE COURT:· You may do so.

10· · · · · · · · · · · ·CROSS-EXAMINATION

11· · · · · · · · · BY MS. BELES:· Q.· ·Good afternoon, Dr.

12· ·Buckleton.

13· ·A.· ·Good afternoon.

14· ·Q.· ·I'm going a bit in chronological order regarding STRmix.

15· · · · STRmix was developed -- began to be developed in 2009,

16· ·correct?

17· ·A.· ·No, 2011.· The lab closure was late '09 and STRmix was

18· ·developed in 2011.

19· ·Q.· ·Okay.· Prior to the development of STRmix in 2011, what

20· ·was your focus in DNA analysis?

21· ·A.· ·My focus has been on the interpretation of DNA profiles

22· ·for the whole -- of the period of '88 until now.

23· ·Q.· ·Just to frame our discussion of STRmix, the

24· ·identification of profiles prior to STRmix was based on

25· ·randem match probability, correct?

26· ·A.· ·In California, but not New Zealand.

27· ·Q.· ·All right.· Were you familiar with RMP prior to your

28· ·beginning developing STRmix?

·1· ·A.· ·I'm one of the authors on the foundational paper for

·2· ·RMP.

·3· ·Q.· ·So you are fully familiar with RMP, correct?

·4· ·A.· ·Yes, I'm the uncle of RMP.

·5· ·Q.· ·You're the father of STRmix, fair?

·6· ·A.· ·I'm one of the three fathers of STRmix.

·7· ·Q.· ·Understood.

·8· · · · In 2009, when the Melbourne lab closes, you and

·9· ·Mr. Taylor were asked to determine a way to fix the problem

10· ·that that lab had; is that accurate?

11· ·A.· ·Dr. Taylor.

12· ·Q.· ·Dr. Taylor, yes?

13· ·A.· ·Yes.

14· ·Q.· ·Taylor?

15· ·A.· ·T-a-y-l-o-r.

16· ·Q.· ·In the beginning, you and Dr. Taylor began looking at

17· ·mathematical solutions to problems with RMP; is that correct?

18· ·A.· ·No.· RMP was not used in Australasia at that time at

19· ·all.

20· ·Q.· ·At all.

21· · · · The problem in Melbourne was different than RMP

22· ·A.· ·Misuse of software called DNAmix.

23· ·Q.· ·Did you -- were you any parent or family member of that

24· ·DNA software?

25· ·A.· ·Yes.

26· ·Q.· ·Did that DNA software utilize the MCM theorems?

27· ·A.· ·No.

28· ·Q.· ·Did it use MC?

·1· ·A.· ·No.

·2· ·Q.· ·But that prior software that you were a part of the

·3· ·development of was found to be insufficient to create

·4· ·identifications; is that fair?

·5· ·A.· ·I'm in no way anything to do with the programming,

·6· ·however, it is based on a paper that I'm a coauthor of in

·7· ·1997 which arose out of the mathematics developed for the OJ

·8· ·Simpson trial.

·9· ·Q.· ·Understood.

10· · · · Let's get those -- let me tease out some of what you

11· ·just said, especially in terms of your parentage of the

12· ·software for STRmix.

13· · · · Is it fair to say that you and Dr. Taylor and Dr.

14· ·Bright --

15· ·A.· ·Yes.

16· ·Q.· ·-- developed the mathematics that -- the mathematical

17· ·algorithms that are the basis for STRmix?

18· ·A.· ·Not mathematical algorithms, they have heritage that

19· ·predates my birth; we applied them.

20· ·Q.· ·Understood.

21· · · · You utilized known mathematical principles and tried to

22· ·put them in a software program that became STRmix, correct?

23· ·A.· ·Yes.

24· ·Q.· ·At a very basic level, STRmix is coded by someone other

25· ·than you and Dr. Taylor and Dr. Bright, correct?

26· ·A.· ·No.

27· ·Q.· ·Oh.

28· ·A.· ·In the particular version that is used in Cal DOJ and in

·1· ·this case it was coded by Dr. Taylor.

·2· ·Q.· ·Himself?

·3· ·A.· ·Yes.

·4· ·Q.· ·Are you a part of the coding -- were you a part of any

·5· ·of the coding of STRmix software?

·6· ·A.· ·Only vicariously inasmuch as I worked on algorithms and

·7· ·checked the workings of it.

·8· ·Q.· ·In terms of development of STRmix by you, Dr. Taylor,

·9· ·and Dr. Bright, that culminated in a product of STRmix in

10· ·2011, correct?

11· ·A.· ·Yes.

12· ·Q.· ·And that product STRmix is a software program, correct?

13· ·A.· ·Yes.

14· ·Q.· ·And in the old days, you could get it on a floppy drive

15· ·or CD.· Now some way it can be downloaded correct?

16· ·A.· ·Not so much.· It is installed on people's computers by

17· ·our installer who is a U.S. company called Niche Vision. I

18· ·think you say Niche in America.

19· ·Q.· ·Tomato, tomato.· Thank you.

20· · · · When you say "it is installed," it is a commercial

21· ·software, correct?

22· ·A.· ·That's correct.

23· ·Q.· ·And the agencies that purchase STRmix must pay for it,

24· ·correct?

25· ·A.· ·Yes.

26· ·Q.· ·Do you have any financial interest in the purchasing of

27· ·STRmix?

28· ·A.· ·No.

·1· ·Q.· ·Do you hold a patent for the STRmix program?

·2· ·A.· ·No.

·3· ·Q.· ·Is there a patent held for the STRmix program?

·4· ·A.· ·No.

·5· ·Q.· ·Do you hold a patent for one of the mathematical

·6· ·theorems that is the basis for STRmix?

·7· ·A.· ·No.

·8· ·Q.· ·Do you hold a patent for MC?

·9· ·A.· ·Maybe.

10· ·Q.· ·Maybe.

11· ·A.· ·I do have a patent on the application of Monte Carlo to

12· ·DNA profiles that is not related to STRmix.

13· ·Q.· ·That was my question.

14· ·A.· ·Yes.

15· ·Q.· ·You in fact have prepared a document in relation to the

16· ·admissibility of STRmix or some of the issues that come up in

17· ·these admissibility hearings, correct?

18· ·A.· ·Yes.

19· ·Q.· ·When was that document created?

20· ·A.· ·It's live.· I'm improving it in real-time.

21· ·Q.· ·And you provided it to Ms. Della Maggiore, correct?

22· ·A.· ·Yes.

23· ·Q.· ·So you do hold a patent on utilization of the Monte

24· ·Carlo method in DNA, but that has nothing to do with STRmix;

25· ·am I correct?

26· ·A.· ·The Sidney Monte Carlo, but my initial ideas were naive.

27· ·Q.· ·Unreliable?

28· ·A.· ·Certainly not.· Unimplementable.

·1· ·Q.· ·Okay.· So once -- once STRmix becomes a commercially

·2· ·available program, how is that program disseminated to the

·3· ·world community?

·4· ·A.· ·Speaking of California Department of Justice, they

·5· ·purchase licenses and they are installed places with

·6· ·licensing by remote system on their computers.

·7· ·Q.· ·And it -- was STRmix marketed to any agencies?

·8· ·A.· ·STRmix is marketed internationally and across the world.

·9· ·Q.· ·Are you involved in any of that marketing of STRmix?

10· ·A.· ·No.

11· ·Q.· ·Are you utilized in any of the marketing materials as

12· ·quoted, anything like that?

13· ·A.· ·I would imagine I am, but I don't read those.

14· ·Q.· ·All right.

15· ·A.· ·But I would think I would be.

16· ·Q.· ·Does Dr. Taylor still have the same role -- does

17· ·Dr. Taylor have the same role with STRmix as you do at this

18· ·time?

19· ·A.· ·We've never had the same role.

20· ·Q.· ·Okay.

21· ·A.· ·We are different people with different talents, but he

22· ·is no longer the programmer.

23· ·Q.· ·How about Dr. Bright, is she still involved?

24· ·A.· ·We are all still involved, but we all have very

25· ·different -- we all bring very different things to the table.

26· ·Q.· ·So let's talk a little bit about what STRmix does, a

27· ·very little bit, to move us into the ideas of the community.

28· · · · Does STRmix -- is STRmix best used on mixed sample DNA?

·1· ·A.· ·No.· It's perfectly capable of being used on anything

·2· ·from single source to mixed.

·3· ·Q.· ·So it is -- is STRmix -- if STRmix is used on single

·4· ·source DNA, does it come up with the same likelihood ratios

·5· ·and would there be a randem match probability analysis?

·6· ·A.· ·It does as long as we have a good template of single

·7· ·source profile.

·8· ·Q.· ·Understood.

·9· · · · If we have solid single source profile, RMP and STRmix

10· ·are going to have equally successful results?

11· ·A.· ·Yes.

12· ·Q.· ·Understood.

13· · · · Now, is it fair to say that STRmix in the deconvolution

14· ·process is in your view doing something different than our

15· ·RMP can do with mixed donor samples?

16· ·A.· ·Different -- it's different in detail, but the

17· ·principles have been applied in RMP.· The principles involve

18· ·the utilization of information in peak height.· Previous RMP

19· ·methods were manual and needed really some substantial

20· ·differences to be able to extract a major from a profile.

21· ·Q.· ·All right.· Let me follow up on a couple of those. I

22· ·think I know.· I need it for the record.

23· · · · In RMP with multiple donor samples, there could be some

24· ·deconvolution, but you would have to have higher allele peaks

25· ·in order to do that manually with RMP; is that true?

26· ·A.· ·Yes.

27· ·Q.· ·What STRmix does is mathematically creates the

28· ·likelihood ratios without that peak height or with it or

·1· ·something different?

·2· ·A.· ·With it.

·3· ·Q.· ·With it.

·4· · · · Now, does STRmix utilize other bits of information that

·5· ·RMP does not utilize in order to create a likelihood ratio?

·6· ·A.· ·It utilizes the height information better than is

·7· ·capable of being done manually.· It also models stutter.· It

·8· ·models s-t-u ter -- s-t-u-t-t-e-r, better than can be done

·9· ·manually.

10· ·Q.· ·All right.· So in two -- well, let me ask you this.

11· · · · In using RMP for a multiple donor sample, would there be

12· ·a -- automatically be a different result if you utilized

13· ·STRmix for that same multiple donor sample?

14· ·A.· ·The answer is sometimes.· So if you have a clean major,

15· ·then we would get the same or strongly similar answer.· But

16· ·if you're speaking of the minor or a more -- a more difficult

17· ·deconvoluted sample, then STRmix would be more powerful.

18· ·Q.· ·So when an analyst -- when an analyst uses -- strike

19· ·that.· Let me get the language right.

20· · · · What name would you give to the person who uses the

21· ·STRmix kind of boots on the ground at the agency, would that

22· ·be an analyst?

23· ·A.· ·I guess so, yes.

24· ·Q.· ·So when an analyst is utilizing STRmix, are -- is there

25· ·certain information that the analyst has to input in order

26· ·for STRmix to function?

27· ·A.· ·Yes.

28· ·Q.· ·What are those items of information?

·1· ·A.· ·If you would permit me to answer your question more

·2· ·holistically.· The analyst's function prior to running STRmix

·3· ·involves some artefact management and an assignment of the

·4· ·number of contributors.

·5· ·Q.· ·Some artefact management and the number --

·6· ·A.· ·Assignment of the number of contributors.· I believe

·7· ·there is a section in that document I sent you that outlines

·8· ·this.

·9· ·Q.· ·Right.· But we're --

10· ·A.· ·Getting it on the record.

11· ·Q.· ·-- getting it on the record, exactly.

12· · · · Once --

13· · · · · · · · · MS. BELES:· Your Honor, do you mind if I'm

14· ·seated?

15· · · · · · · · · THE COURT:· Not at all.

16· · · · · · · · · MS. BELES:· Q.· ·The -- once the analyst

17· ·receives a profile from wherever, either its own lab, another

18· ·lab, et cetera, the analyst, he or she, then would enter in

19· ·that sample, whatever they have.· They would enter in an

20· ·assignment of number of donors and they would enter in some

21· ·artefacts?

22· ·A.· ·That happens prior to the entry.

23· ·Q.· ·Okay.

24· ·A.· ·It's standard.· This is historic, it's not use.· It's

25· ·not a part to STRmix.· It's artefact management.· We often

26· ·call it clicking off.· And in particular, in the version and

27· ·use of Cal DOJ, we need the analyst to remove spikes and --

28· ·Q.· ·Anything else?

·1· ·A.· ·-- forward stutter.· I believe there is management

·2· ·protocol at Cal DOJ that is very excellent.· And Cal DOJ,

·3· ·they ignore two alleles, SE33 and D1.· But I would love it if

·4· ·you could just clarify that with Mr. Halsing when the time

·5· ·comes.

·6· ·Q.· ·Speaking of which, did you speak with Mr. Halsing over

·7· ·the lunch hour about your testimony?

·8· ·A.· ·No.· I'm a little surprised at the question.

·9· ·Q.· ·I had to ask.

10· · · · So once -- once the analyst enters in that material,

11· ·does the artefacts management clicking off, removing spikes

12· ·for Cal DOJ, and then assigns a number of donors, then it is

13· ·the program that creates the likelihood ratios, correct?

14· ·A.· ·Yes.

15· ·Q.· ·And those likelihood ratios, are they reproducible?

16· ·A.· ·Yes.

17· ·Q.· ·Are they always the same -- for the same sample?

18· ·A.· ·As long as we define "same" as within experimental

19· ·areas.· They are not identical.

20· ·Q.· ·Sometimes they are a little bit different, but you

21· ·attribute that to experimental error rate?

22· ·A.· ·That is Monte Carlo fate.· Monte Carlo, as you well

23· ·know, is a casino in Europe.· Monte Carlo is a numerical

24· ·simulation and we don't get an identical answer, but they are

25· ·typically very close to each other.

26· ·Q.· ·Okay.· So can -- can -- once the analyst introduces the

27· ·assignment of the number of donors, does the program only

28· ·contemplate that number of donors?

·1· ·A.· ·Yes.

·2· ·Q.· ·So let's talk about the use of STRmix in -- let's just

·3· ·talk about the United States at the moment.· Okay?

·4· ·A.· ·Okay.

·5· ·Q.· ·So in the U.S., you indicated that the Army got it

·6· ·first, correct?

·7· ·A.· ·Yes.

·8· ·Q.· ·And then you listed a couple other places, but one

·9· ·statistic you mentioned during direct I want to clarify.· You

10· ·indicated that 65 percent of what labs utilize STRmix?

11· ·A.· ·Purchased.· I said purchased.

12· ·Q.· ·Purchased?

13· ·A.· ·This is an estimate of the number of U.S. laboratories

14· ·that have purchased STRmix.

15· ·Q.· ·You estimate 65 percent of all laboratories in the

16· ·United States have purchased STRmix software?

17· ·A.· ·If you want the exact source of my data, 65 percent of

18· ·the laboratories that appear on the accreditation list,

19· ·forensic accreditation list, have purchased STRmix.

20· ·Q.· ·It wasn't 65 percent of labs purchased PG software.· It

21· ·was specifically 65 percent of all labs that have purchased

22· ·STRmix; is that right?

23· ·A.· ·Sixty-five percent have that are accredited forensic

24· ·laboratories.

25· ·Q.· ·Okay.· So STRmix is not the only PG software, correct?

26· ·A.· ·No.

27· ·Q.· ·I asked that incorrectly.

28· · · · Are there other PG software programs?

·1· ·A.· ·Yes.

·2· ·Q.· ·Approximately how many in the U.S.?

·3· ·A.· ·Well, in the U.S. is an interesting question.

·4· ·Q.· ·Let's --

·5· ·A.· ·Used in the U.S., now, you mentioned hearsay earlier and

·6· ·now you're really getting me to hearsay.

·7· ·Q.· ·It was found to be okay, so we're going with it.

·8· ·A.· ·All right.

·9· ·Q.· ·I'll ask the question.

10· ·A.· ·I'm sure that is Your Honor's decision.

11· · · · We think of the seven using TrueAllele and about two are

12· ·using Lab new word Retriever.

13· ·Q.· ·Okay.· So theoretically the same type of software?

14· ·A.· ·No.

15· ·Q.· ·No.

16· ·A.· ·Okay.· Lab Retriever is qualitative.· TrueAllele on

17· ·medical may not be similar.· I actually genuinely don't know.

18· ·Q.· ·Let's talk about if STRmix has had any review by any of

19· ·the other PG software makers.

20· · · · Has STRmix been reviewed by any of the people associated

21· ·with TrueAllele?

22· ·A.· ·No.

23· ·Q.· ·Any people associated with Lab Retriever?

24· ·A.· ·No.

25· ·Q.· ·Do you make available to people associated with

26· ·TrueAllele the STRmix software?

27· ·A.· ·We would not make it available; however, they have

28· ·obtained it nonetheless.

·1· ·Q.· ·TrueAllele has?

·2· ·A.· ·We believe Dr. Perlin who is principal of Cybergenetics,

·3· ·the parent company of TrueAllele.

·4· ·Q.· ·Same question, just to finish out, would you allow the

·5· ·purchase of the STRmix software to anyone associated with Lab

·6· ·Retriever?

·7· ·A.· ·No, but they have attended our training.

·8· ·Q.· ·All right.· So in direct examination, you discussed the

·9· ·idea of peer review.· I want to go one step backward and talk

10· ·about the PCAST report.

11· · · · Okay?

12· ·A.· ·Okay.

13· ·Q.· ·PCAST report made recommendations about the validity of

14· ·STRmix, correct?

15· ·A.· ·No.

16· ·Q.· ·Okay.· Why don't you tell us what PCAST said about

17· ·STRmix?

18· ·A.· ·The principal matter in the -- well, PCAST doesn't

19· ·directly address STRmix, although it is named in there.· They

20· ·speak about prob gen in general.· It would be quite improper

21· ·of them really to make a recommendation on software.

22· ·Q.· ·Certainly would.

23· ·A.· ·Finding three is the -- is the clause of interest in the

24· ·PCAST report.

25· · · · And part one of three says the community should move

26· ·rapidly toward more appropriate methods of probalistic

27· ·genotyping.

28· · · · Clause two of finding three cites that foundational

·1· ·validity has been established up to three person mixtures

·2· ·where the minor exceeds twenty percent.

·3· · · · In the addendum to the report, they clarify that and

·4· ·change the word "minor" to "person of interest."

·5· ·Q.· ·And that was -- let's go back.· I know what you're

·6· ·talking about.· Again, we're making a record here.

·7· · · · Originally PCAST was discussing PGS, probalistic

·8· ·genotyping software, and made some recommendations about how

·9· ·to get better validation of PG software, correct?

10· ·A.· ·They make recommendations, yeah, I think they do. I

11· ·think that is correct.

12· ·Q.· ·Right.· One of the issues was -- one of the issues was

13· ·validation of STRmix in general, correct?

14· ·A.· ·No.

15· ·Q.· ·It was not validation?

16· ·A.· ·No.

17· ·Q.· ·Was it peer review?

18· ·A.· ·No.

19· ·Q.· ·Okay.

20· ·A.· ·I don't think they make any direct reference to STRmix

21· ·except on a footnote commenting on New York versus Hillary.

22· ·Q.· ·I should have asked those questions about PGS in

23· ·general.

24· · · · Does PCAST make any recommendation about PGS?

25· ·A.· ·I don't think they use the acronym "PGS," but, yes, they

26· ·do.

27· ·Q.· ·Okay.· Dr. Buckleton, does PCAST make any

28· ·recommendations about probalistic genotyping software?

·1· ·A.· ·Yes.

·2· ·Q.· ·What recommendations does PCAST make?

·3· ·A.· ·I'm guessing you have it in front of you, I don't.· But

·4· ·I think they essentially asked NIST, N-I-S-T, to do studies.

·5· ·Q.· ·In response to the PCAST analysis of probalistic

·6· ·genotyping software, did you meet with members of PCAST?

·7· ·A.· ·Yes.

·8· ·Q.· ·And did you make recommendations to them about how they

·9· ·should change the language of their original report?

10· ·A.· ·I wouldn't phrase it that way, no.

11· ·Q.· ·Did you contribute -- or did you contribute to PCAST

12· ·your ideas of how probalistic genotyping software might be

13· ·better in the future?

14· ·A.· ·So I've interacted with PCAST by a number of emails and

15· ·phone conversations and then meeting on I believe November

16· ·20th, 2016, at the Eisenhower Executive Building.· The

17· ·particular meeting on the 20th to which you are referring was

18· ·dominated by Dr. Perlin of Cybergenetics arguing with Dr.

19· ·Lander of PCAST and using up nearly all the time.· At the end

20· ·of that time, I did have a very cordial and constructive

21· ·discussion with the three members of PCAST who were present

22· ·and they outlined between us -- we collectively outlined what

23· ·they thought we should do so that they would be satisfied

24· ·that STRmix was valid beyond the limitations they had

25· ·incorrectly in my opinion suggested.

26· ·Q.· ·STRmix or PGS?

27· ·A.· ·STRmix.· By this time, Dr. Perlin had rather

28· ·preemptively left the building.

·1· ·Q.· ·So in that meeting with PCAST, the original meeting with

·2· ·Dr. Perlin, did you agree that empirical testing of PGS

·3· ·software should be done?

·4· ·A.· ·I agreed it should be done and had already been done.

·5· ·They were insisting on publication and I believe the process

·6· ·has happened properly.· You have before you the draft of that

·7· ·publication.

·8· ·Q.· ·We'll get to that draft, Dr. Buckleton.· It's a draft,

·9· ·correct?· Correct?

10· ·A.· ·Well, it's a draft inasmuch as it is submitted to the

11· ·journal and is in the refereeing process.

12· ·Q.· ·Let's talk about the empirical testing.

13· · · · How would one as a scientist not associated with any

14· ·laboratory that uses STRmix be able to empirically test the

15· ·efficacy of STRmix?

16· ·A.· ·Well, the usual way is as to SWGDAM guidelines as

17· ·outlined, that has been done multiple times across the world.

18· ·Q.· ·Well, no -- perhaps, Doctor, you could explain what you

19· ·mean by "empirical testing."

20· · · · My question went to if STRmix can be empirically tested,

21· ·can it be empirically tested by someone not associated with

22· ·STRmix either as a developer or as a user within a lab?

23· ·A.· ·Well, it would have to have STRmix.· I don't know how

24· ·you could test something you didn't have any access to.· They

25· ·would need access to it.

26· ·Q.· ·Right.

27· · · · The only people that have access to STRmix are the

28· ·developers and the people who have purchased the software,

·1· ·correct?

·2· ·A.· ·No.

·3· ·Q.· ·Who else would have access to STRmix?

·4· ·A.· ·We have at different times placed versions with

·5· ·different parties.

·6· ·Q.· ·Such as?

·7· ·A.· ·Initially we placed a version with NIST.· They have now

·8· ·purchased it, but certainly initially we placed it with them.

·9· ·Q.· ·You gave it to NIST without the licensing fees?

10· ·A.· ·Yes.

11· ·Q.· ·Why did you do that?

12· ·A.· ·The same time we did that with California Department of

13· ·Justice, we actually gave them a version early on for them to

14· ·try.

15· ·Q.· ·A sample of sorts?

16· ·A.· ·I'm not a very commercial person.· I don't really think

17· ·that way.

18· ·Q.· ·Okay.

19· ·A.· ·These were respected colleagues.· We had no intent

20· ·whatsoever selling STRmix anyway.· It was going to be an

21· ·Australasia product.· In fact, Steven Mars from the

22· ·California Department of Justice is the one that talked my

23· ·management into releasing it internationally.· We linked him

24· ·a version for his own use and experimentation.· And I think

25· ·we would heavily do that with many other people.

26· ·Q.· ·Go back to the original question about the empirical

27· ·testing that was conceivably recommended -- the empirical

28· ·testing of STRmix that PCAST mentioned with which you agreed

·1· ·at a later date.· To your knowledge, has there ever been any

·2· ·empirical testing of STRmix?

·3· ·A.· ·Yes.

·4· ·Q.· ·And is that by agencies that utilize STRmix?

·5· ·A.· ·Yes.· They've utilized it, also includes those who just

·6· ·purchased and are not in casework, yes.

·7· ·Q.· ·That isn't why I used "utilize."

·8· · · · Anyone who has STRmix and is either --

·9· ·A.· ·Experimenting with it or thinking of using it in

10· ·casework or any other purpose.

11· ·Q.· ·But not yet operational?

12· ·A.· ·Yep.

13· ·Q.· ·Did Dr. Perlin in the perhaps contested meeting with

14· ·PCAST indicate that he believed that empirical testing was

15· ·unnecessary?

16· ·A.· ·Yes, he did.

17· ·Q.· ·And isn't it true that PCAST in their addendum to the

18· ·2016 report, which may also have been in 2016, believed the

19· ·empirical testing to be necessary to excise assumptions or

20· ·errors in assumptions that might be put into the use of the

21· ·program?

22· ·A.· ·The addendum of PCAST in January '17?

23· ·Q.· ·I'm sorry, yes.

24· ·A.· ·Yes, they requested or demanded empirical testing be

25· ·published.· That empirical testing in the case of Stonic

26· ·(phonetic) already happened.· They demanded it be published.

27· ·Q.· ·Has there been empirical testing published since the

28· ·PCAST addendum in early 2017?

·1· ·A.· ·Yes.

·2· ·Q.· ·Yes?

·3· ·A.· ·Yes.

·4· ·Q.· ·What empirical testing was published since PCAST's

·5· ·recommendation early 2017?

·6· ·A.· ·FBI internal validation which reports a very sizable

·7· ·empirical testing and I believe is in the material that I

·8· ·hope has made its way to you.

·9· ·Q.· ·So the FBI international validation --

10· ·A.· ·Yes.

11· ·Q.· ·Just on a -- this is an important point.· Just on a

12· ·definitional level, do you include internal laboratory

13· ·validations as empirical testing of STRmix?

14· ·A.· ·Yes.

15· ·Q.· ·In your meetings with PCAST or in their recommendations,

16· ·was there a different type of empirical testing of STRmix

17· ·contemplated besides internal testing or internal validation?

18· ·A.· ·I think PCAST were keen on a third party validation by

19· ·NIST the last year.

20· ·Q.· ·NIST has conducted a third party empirical testing since

21· ·the PCAST addendum in early 2017?

22· ·A.· ·Well, I no longer work at NIST.· I left NIST in December

23· ·'16, so I have no firsthand knowledge of that.· But I believe

24· ·they have not and have indicated they will not.

25· ·Q.· ·Oh.

26· · · · Okay.· Do you need water?

27· ·A.· ·No, I'm good.· Thank you.

28· ·Q.· ·So the -- in terms of published empirical testing, we

·1· ·have the FBI internal validation.· Anything else you can

·2· ·think of?

·3· ·A.· ·If I could outline to you the situation.

·4· · · · Journals have a policy of not publishing validations.

·5· ·We are very lucky to have got the FBI one published.· They,

·6· ·many of them including the Journal of Forensic Sciences, have

·7· ·a policy of not publishing validations.· Validations are

·8· ·exceptionally dull reading and they would not want multiple

·9· ·validations published and I think we were lucky to get one.

10· · · · Now, the draft --

11· ·Q.· ·We'll get to the draft.

12· · · · · · · · · MS. DELLA MAGGIORE:· Could the witness be

13· ·entitled to answer the question?

14· · · · · · · · · THE WITNESS:· I'm happy to wait.

15· · · · · · · · · THE COURT:· Next question.

16· · · · · · · · · MS. BELES:· Q.· ·I want to pinpoint, in your

17· ·experience, the forensic journals have a policy of not

18· ·publishing internal validation studies?

19· ·A.· ·General forensic science has an explicit policy of not

20· ·publishing.· Many others have an implicit policy of not

21· ·publishing.

22· ·Q.· ·In your opinion, that is because they are boring on some

23· ·level?

24· ·A.· ·Well, I've been directly told by the editors that is the

25· ·reason.

26· ·Q.· ·Is there any concern about -- in your opinion or your

27· ·experience, about the publication of internal validations as

28· ·being biased to that particular user of that particular

·1· ·product?

·2· ·A.· ·No, I don't think so.· I think it is really quite the

·3· ·opposite.· A great many internal validations are in the

·4· ·public domain.· I'm certain all of them would be made

·5· ·available for defense to review by any independent scientist

·6· ·they chose.· But my experience working with those people

·7· ·doing the internal validations, they are the harshest critic

·8· ·of the software.· They are generally looking to test it

·9· ·before putting it into use.· I would feel it as really the

10· ·opposite.· There is no bias to slip through some software

11· ·they felt was inappropriately.· They are genuinely testing it

12· ·to see if it is fit for purpose.

13· ·Q.· ·Do people or agencies that have paid -- let me come back

14· ·one step.

15· · · · The licensing of STRmix costs in the area of what, 30 to

16· ·50,000 dollars?

17· ·A.· ·I don't follow that.· But I think your number for first

18· ·license is approximately right.· I think it is about 27ish

19· ·thousand U.S.· If that is important, I can obtain those

20· ·numbers for you.· There are three sources of revenue:· People

21· ·pay for training, pay for licensing, and they pay for support

22· ·hours.· Many of those support hours go to assisting

23· ·validation and implementation.

24· ·Q.· ·I'm sorry, Dr. Buckleton.· Perhaps I didn't write fast

25· ·enough.· Three sources of revenue:· For licensing?

26· ·A.· ·Training, licensing, and support.

27· ·Q.· ·Got it.

28· · · · You conduct the training on the STRmix or not?

·1· ·A.· ·There are about 12 trainers, but I certainly have done a

·2· ·large number of them.· At each training event we tend to

·3· ·front with three trainers at most.· I would be one of three.

·4· · · · · · · · · MS. BELES:· Your Honor, I'm just checking a

·5· ·note, if I may.

·6· ·Q.· ·So in speaking about PCAST, in speaking about moving to

·7· ·the validation idea, when you were speaking with the

·8· ·prosecution, it appeared to me that there were vali --

·9· ·internal validation of labs occurs with really three

10· ·guidelines, the PCAST, International Society of Forensic

11· ·Geneticists, and then SWGDAM; is that right?

12· ·A.· ·You've named them correctly, but SWGDAM is completely

13· ·dominant.· We all work with the SWGDAM guidelines.

14· ·Q.· ·Because SWGDAM guidelines -- you're talking about the

15· ·2015 ones, but SWGDAM created guidelines before that, haven't

16· ·they?

17· ·A.· ·Never on validating probalistic genotyping, but they

18· ·have been creating guidelines since the early '00s.

19· ·Q.· ·Right.

20· · · · In terms -- you just said something about validating --

21· ·validation within the labs.· One of the things that you do as

22· ·a trainer is assist the lab in how to conduct the validation

23· ·process, correct?

24· ·A.· ·Yes.

25· ·Q.· ·Of the labs that utilize -- utilize including purchased,

26· ·going through validation or actually using STRmix in the

27· ·United States, how many of those did you participate in the

28· ·validation process?

·1· ·A.· ·So I am unsure of the number.· And you phrased the

·2· ·question as me personally, but we have a team of about 12.

·3· ·Between the 12 of us we would have supported the validation

·4· ·of the majority of U.S. laboratories.

·5· ·Q.· ·I'm actually asking the personal question.· If you can

·6· ·estimate of --

·7· ·A.· ·I would have been personally involved in I would have

·8· ·thought plausibly a third of those, that would come at the

·9· ·tail end, the troubleshooting end if something needed looking

10· ·at.

11· ·Q.· ·Were you testifying on direct examination, in very short

12· ·notes I wrote, that you had personal involvement in review

13· ·and/or I think problem solving or troubleshooting?

14· ·A.· ·Yes.

15· ·Q.· ·In all American labs?

16· ·A.· ·Well, if you count the various processes that I actually

17· ·set up and the spreadsheets I've set up, then it would be not

18· ·quite all.· I'm sure Cal DOJ did most of it themselves with

19· ·any vicarious assistance from us.

20· ·Q.· ·Vicarious?

21· ·A.· ·Assistance from us.

22· · · · But for many of the others, their involvement is much

23· ·larger than that.

24· ·Q.· ·So did you assist in the validation process for Cal DOJ?

25· ·A.· ·Me personally, yes, to a moderate extent; my

26· ·codevelopers more toward a significant extent.

27· ·Q.· ·In terms of the other two working groups, International

28· ·Society of Foreign Geneticists --

·1· ·A.· ·Call it ISFG, if that helps you.

·2· ·Q.· ·-- ISFG has had guidelines in existence for laboratories

·3· ·since when?

·4· ·A.· ·2016, I think, but I wouldn't mind checking that.

·5· ·Q.· ·Do you have something with which to refresh your

·6· ·recollection?

·7· ·A.· ·I can do that while you're asking the next question, if

·8· ·you want.

·9· ·Q.· ·Great.· I could pause.

10· ·A.· ·If we look at the end of my CV --

11· ·Q.· ·Process if you want to refresh your recollection for

12· ·dates, please do, read it silently to yourself, look up at

13· ·me.· We can see if your memory is refreshed.

14· · · · Is your memory refreshed, Dr. Buckleton?

15· ·A.· ·No, I have not found it in the list I was looking at.

16· ·Q.· ·Estimate 2016 ISFG created guidelines; is that fair?

17· ·A.· ·Yes.

18· ·Q.· ·The PCAST guidelines we talked about were in the

19· ·beginning of this year, correct, the addendum?

20· ·A.· ·The addendum came out January 17th.

21· ·Q.· ·Well, apparently there is probably other nondisclosure

22· ·or some other secret.

23· · · · You mentioned OSAC, tell us what that stands for at the

24· ·very least

25· ·A.· ·Organization of Science Area Committees.· And there is

26· ·no nondisclosure.· Simply expected that we don't disseminate

27· ·it widely in advance of its publication.

28· ·Q.· ·Okay.· Now, speaking of publications and drafts, I have

·1· ·been provided and you started to mention a few times a draft

·2· ·of a paper -- not the right academic word, roll with it for

·3· ·the moment, a research paper, basically in compiling internal

·4· ·validations of PGS within over 30 laboratories, right?

·5· ·A.· ·Thirty-one.

·6· ·Q.· ·Right.

·7· · · · You are one of its authors, correct?

·8· ·A.· ·Yes.

·9· ·Q.· ·And there are an estimated 25, 30 other authors,

10· ·correct?· I didn't count.

11· ·A.· ·I think it's more.

12· ·Q.· ·I'm sorry?

13· ·A.· ·I think it is more.

14· ·Q.· ·Okay.· Okay.· More in the range of 45 to 50 because I

15· ·counted quickly, is that fair, authors?

16· ·A.· ·Yes.

17· ·Q.· ·Now, this paper was assembled in response to the PCAST

18· ·addendum or for some other purpose?

19· ·A.· ·To the meeting on the 20th of November with PCAST, this

20· ·was what we discussed with them or what I discussed with

21· ·them.

22· ·Q.· ·But it is -- it is still a compilation -- number one,

23· ·it's not published, correct?

24· ·A.· ·It is in the process, but it is not actually published.

25· ·Q.· ·Number two, it is compilation of internal validation?

26· ·A.· ·Yes.

27· ·Q.· ·Of each of these labs, correct?

28· ·A.· ·Yes.

·1· ·Q.· ·All of the labs that are contained in this draft conduct

·2· ·internal validation studies, correct?

·3· ·A.· ·Yes.

·4· ·Q.· ·These are labs that are in the United States, correct?

·5· ·A.· ·No.

·6· ·Q.· ·Not all of them?

·7· ·A.· ·No.

·8· ·Q.· ·Were you involved with each of the internal -- internal

·9· ·validation studies that are compiled as part of this draft?

10· ·A.· ·I would have been involved in a fraction of them.

11· ·Q.· ·A fraction of them?

12· ·A.· ·Uh-huh (affirmative).

13· ·Q.· ·Okay.· This paper -- also one of the ways science works

14· ·is that you mentioned that you have blind referees --

15· ·"referees" the correct word?

16· ·A.· ·Yes.

17· ·Q.· ·-- look at the paper and it's not just proofreading, it

18· ·is scientific proofreading, correct?

19· ·A.· ·They vary.

20· ·Q.· ·In this particular paper of the 45 to 50 authors, I mean

21· ·that everyone -- strike that whole question.· Not strike it,

22· ·ignore it for the moment.

23· · · · Isn't it true that in academic or forensic papers such

24· ·as this, there was a recommendation of review, correct?

25· ·A.· ·Yes.

26· ·Q.· ·And isn't it true in this draft that the recommended

27· ·reviewers are the same 45 to 48 people who are listed as the

28· ·authors?

·1· ·A.· ·No.

·2· ·Q.· ·No?

·3· ·A.· ·No.· The editor sends it out to two anonymous referees

·4· ·who are unknown to me but will not be an author.

·5· ·Q.· ·Oh, it's just the way it printed out.

·6· · · · · · · · · MS. BELES:· Your Honor, may I approach just a

·7· ·moment --

·8· · · · · · · · · THE COURT:· Yes.

·9· · · · · · · · · MS. BELES:· -- to verify some of my facts

10· ·here.

11· ·Q.· ·Dr. Buckleton, this is the draft as I received it.· What

12· ·it indicates on page one suggested reviewers at the bottom.

13· ·Is it true the beginning of the second page has the same

14· ·authors?

15· · · · Does that suggest that those are the suggested reviewers

16· ·or something different?· Is it just the way it printed out?

17· ·A.· ·I've not printed this in a particular helpful way for

18· ·you.

19· ·Q.· ·Okay.· Are the suggestive reviewers the 45, 48 authors?

20· ·A.· ·No, certainly not.

21· ·Q.· ·Because perhaps the authors of said paper should not be

22· ·reviewing themselves?

23· ·A.· ·I'm sure they would do a lovely job, but that is not the

24· ·process.

25· ·Q.· ·Aside from that draft and the published FBI internal

26· ·validation process, are there any other peer review articles

27· ·of STRmix since the PCAST recommendation of early 2017?

28· ·A.· ·No.

·1· ·Q.· ·Are there any peer review articles about STRmix by

·2· ·people who do not use or did not develop STRmix?

·3· ·A.· ·No.

·4· ·Q.· ·Let's just ask about the other -- the crossways peer

·5· ·review.· Have you ever reviewed TrueAllele?

·6· ·A.· ·Yes, I'm the referee on the foundational paper for

·7· ·TrueAllele.

·8· ·Q.· ·And have you -- did you need to gain access to the

·9· ·TrueAllele software in order to do that?

10· ·A.· ·No.

11· ·Q.· ·No?

12· ·A.· ·No.

13· ·Q.· ·Could you explain how -- could you explain how either

14· ·PGS, TrueAllele, or STRmix could possibly be peer reviewed

15· ·without access to the software?

16· ·A.· ·I was asked to review the mathematics of it --

17· ·Q.· ·Okay.

18· ·A.· ·-- which I did.

19· ·Q.· ·Has anyone, not -- a developer or a trainer or a person

20· ·who uses STRmix ever peer reviewed the mathematics of STRmix?

21· ·A.· ·Plausibly.· We've been cloned twice.

22· · · · How would I answer that question?· I have to know what

23· ·everyone on earth had done.

24· ·Q.· ·I'm asking about review, if someone ever conducted a

25· ·paper or referee'd a paper like you did on TrueAllele, on

26· ·STRmix?

27· · · · STRmix is mathematical conclusions?

28· ·A.· ·Yes, two separate organizations have cloned us and

·1· ·published their work.

·2· ·Q.· ·Okay.· Is that reviewing it or cloning?

·3· · · · Maybe not getting the cloning?

·4· ·A.· ·It's cloning.

·5· ·Q.· ·I'm sorry?

·6· ·A.· ·It's cloning.· Their purpose was to recreate the

·7· ·software and sell it themselves --

·8· ·Q.· ·Right.

·9· ·A.· ·-- in one case and make it free ware in another.

10· ·Q.· ·So that -- what I'm asking, is cloning the same thing as

11· ·reviewing?

12· ·A.· ·No, I don't think it is probably.

13· ·Q.· ·Has anyone other than people who use STRmix or the

14· ·developers of STRmix ever peer reviewed the mathematics of

15· ·STRmix?

16· · · · · · · · · MS. DELLA MAGGIORE:· Objection, relevance.

17· · · · · · · · · THE COURT:· At this point --

18· · · · · · · · · MS. BELES:· Did you want a response, Your

19· ·Honor?

20· · · · · · · · · THE COURT:· Once again, I began this hearing

21· ·with consensus of everyone what the scope of the hearing is.

22· ·Yes, this is not relevant to the scope of the hearing.

23· ·However, the last good portion of the cross-examination has

24· ·been not -- irrelevant to the scope of this hearing.· Now the

25· ·People wish to say lack of relevance.· I'm going to allow the

26· ·question.

27· · · · · · · · · THE WITNESS:· I think the answer is yes, all

28· ·the 24 publications outlining various aspects of the

·1· ·mathematics of STRmix have been reviewed by two anonymous

·2· ·referees including the core mathematical paper of, I think,

·3· ·20 -- of 2014.

·4· · · · · · · · · MS. BELES:· Q.· ·So it is your position there

·5· ·have been 24 publications that have reviewed STRmix's

·6· ·mathematical bases as STRmix, not just a matter on MCMC but

·7· ·as STRmix?

·8· ·A.· ·There are 24 STRmix publications, all of which have had

·9· ·two anonymous reviewers, that would be 48 reviewers.

10· ·Q.· ·I just asked for publication, Dr. Buckleton.

11· · · · There have been 24 publications that have reviewed the

12· ·mathematical foundation for STRmix -- for use of STRmix?

13· ·A.· ·I and others published 24, all of which have been

14· ·reviewed.

15· ·Q.· ·I and others.

16· · · · Have you been listed author of every publication that

17· ·has discussed the mathematics -- the mathematical foundation

18· ·to STRmix?

19· ·A.· ·Yes.

20· ·Q.· ·Okay.· I'm sure that, Dr. Buckleton, you know that I

21· ·would ask you about this.

22· · · · Is -- has STRmix ever been provably wrong on its

23· ·likelihood ratios?

24· ·A.· ·No.

25· ·Q.· ·Could you explain what happened in the Hillary case in

26· ·New York about --

27· · · · · · · · · MS. DELLA MAGGIORE:· Objection, relevance.

28· · · · · · · · · MS. BELES:· It's reliability, Your Honor.

·1· · · · · · · · · THE COURT:· I'm sorry?

·2· · · · · · · · · MS. BELES:· Reliability.

·3· · · · The issue before the Court is whether it has been

·4· ·generally accepted in the forensic science community and is

·5· ·reliable.

·6· · · · · · · · · THE COURT:· That was not raised this morning

·7· ·when I saw the consensus from counsel as to the purpose of

·8· ·the first prong of the Kelly review and the scope of today's

·9· ·hearing.

10· · · · · · · · · MS. BELES:· Well, then I -- Your Honor, the

11· ·way I wrote it down was, prior to the Court saying it, maybe

12· ·I was looking at my own notes not writing down carefully,

13· ·scientific method generally accepted as reliable by the

14· ·relevant scientific community in the -- upon consensus drawn

15· ·from a typical cross-section of the relevant scientific

16· ·community.· Reliability is certainly a part of prong one.

17· · · · · · · · · THE COURT:· Do you have the exact cite from

18· ·Kelly?· That is not what was said this morning.· That is

19· ·not.

20· · · · · · · · · MS. DELLA MAGGIORE:· It's not.

21· · · · · · · · · THE COURT:· Not what counsel indicated this

22· ·morning.· If we open it up to that, it is a different

23· ·hearing.

24· · · · · · · · · MS. DELLA MAGGIORE:· That is not what Kelly

25· ·states.· It's limited to whether or not STRmix is

26· ·sufficiently established to have gained general acceptance in

27· ·its field.

28· · · · · · · · · THE COURT:· That is not what was indicated

·1· ·this morning either.

·2· · · · · · · · · MS. BELES:· Well, I think perhaps we -- so --

·3· ·okay.· Couple things, Your Honor.· The Court made a ruling,

·4· ·allowed me to ask a question but made a comment about what

·5· ·the parameters were.

·6· · · · There's -- there's aspects of the Kelly case that I do

·7· ·want to argue.· I do not want to do it in front of Dr.

·8· ·Buckleton.· If we want to take little time to refine our

·9· ·issues because I do think I get to ask about reliability, not

10· ·just -- and I do think some of my questions that the Court

11· ·said were irrelevant are not irrelevant given the ruling in

12· ·Kelly.· If we want to talk about this quickly.

13· · · · · · · · · THE COURT:· Now you raise it?

14· · · · · · · · · MS. BELES:· Well, I didn't think the Court

15· ·thought my questions were irrelevant, that is why I bring it

16· ·up.

17· · · · · · · · · THE COURT:· There was no objection to what the

18· ·Court thought -- the Court said.

19· · · · That is why I began with my -- my very purpose this

20· ·morning was to have a consensus as to the first prong of the

21· ·Kelly test and what the scope of this hearing was.

22· · · · · · · · · MS. BELES:· So, Your Honor --

23· · · · · · · · · THE COURT:· Counsel agreed and now counsel

24· ·wishes to expand it greatly, so....

25· · · · · · · · · MS. BELES:· Your Honor, I don't think I wish

26· ·to expand anything greatly from the Kelly case.· I made this

27· ·clear in my papers.· If I was inartful this morning not

28· ·adding the reliability issue, it is at page 30 in Kelly.

·1· ·It's at 17 Cal.3rd 24 pinpoint 70.

·2· · · · "The reliability of a method must be established."

·3· · · · And then it goes further, "One of the prongs requires

·4· ·that it be generally accepted as reliable by this relevant

·5· ·scientific community."· ·It's not just accepted.· It is

·6· ·accepted as reliable.

·7· · · · But there is another aspect of Kelly I didn't think I

·8· ·had to bring up this morning, but I don't want to bring it up

·9· ·in front of the witness.

10· · · · · · · · · THE COURT:· All right.· Then, Doctor, if I

11· ·could ask you to please step down for a period of time.

12· · · · We'll recall you when this argument is concluded.

13· · · · · · · · · (The witness left the courtroom.)

14· · · · · · · · · THE COURT:· Record reflect, first of all, that

15· ·the witness has left the courtroom.

16· · · · · · · · · MS. BELES:· I apologize if I didn't refine it

17· ·in relation -- I viewed Kelly's first prong as exactly the

18· ·way I wrote it in my motion and as it is stated at page 30

19· ·which is that the proponent of the evidence must establish

20· ·that the scientific methods utilized be generally accepted as

21· ·reliable by the relevant scientific community.

22· · · · The Court also included the consensus idea, that is from

23· ·People v. Shirley 31 Cal.3rd 18.· I just didn't say the idea

24· ·reliable.· I want to make clear to the Court that the

25· ·Kelly -- one, failure in Kelly was -- part of it is who's

26· ·testifying and who is saying this is a reliable method and

27· ·who is saying this is generally accepted.· That case was a

28· ·voice print case.· I think it is Agent Nash who testified.

·1· ·What the Kelly court found is that Agent Nash had too much of

·2· ·a personal bias and then interest in voice print analysis of

·3· ·technology to be relied upon.· So -- so that is why I'm

·4· ·asking questions about Dr. Buckleton's involvement in each of

·5· ·these peer reviews; in each of these trainings; in each of

·6· ·these validations -- internal validations of the labs.

·7· · · · I understand the Court may not like that argument at the

·8· ·moment because maybe I should have made it this morning, I

·9· ·apologize for that.· But Kelly was based on the idea that the

10· ·person who is testifying cannot have a personal bias,

11· ·interest, or motive in the success or lack of success of the

12· ·procedure, that you have to have an independent expert.· I'm

13· ·going to argue that as well.· But I think reliability

14· ·included in the Kelly first prong is not general acceptance,

15· ·it has to be generally accepted as reliable.

16· · · · Secondary aspect, when the Court indicated some of my

17· ·questions were irrelevant in its opinion, okay, I don't think

18· ·they are irrelevant given my eventual argument, there is no

19· ·question what I'm doing here, this is all Dr. Buckleton.· Dr.

20· ·Buckleton made it.· Dr. Buckleton peer reviewed it.· Dr.

21· ·Buckleton said that it was part of the validation studies, it

22· ·was part of the training, and that is not an independent

23· ·witness make.

24· · · · I have a copy of Kelly if the Court wants to review it

25· ·given the dynamics at the moment.· It does have highlights on

26· ·it, but no notes.

27· · · · It was Lieutenant Nash not agent.· I apologize.

28· · · · · · · · · THE COURT:· So you say you have a copy of

·1· ·Kelly there?

·2· · · · · · · · · MS. BELES:· I do.

·3· · · · · · · · · THE COURT:· I read it this way:· The first

·4· ·prong requires a showing as we discussed this morning.

·5· · · · The third prong would go to reliability of the

·6· ·scientific procedure.

·7· · · · This issue of reliability seems to me goes beyond the

·8· ·first prong.

·9· · · · · · · · · MS. BELES:· I think that prong three discusses

10· ·the reliability of the process used in this case.· I think in

11· ·prong one it requires a reliability of the generalized

12· ·process.· That is the way I've always read Kelly.

13· · · · I think that prong three talks about was the process

14· ·used correctly and reliably so.

15· · · · I think STRmix has to be a reliable scientific method

16· ·under prong one as well.

17· · · · · · · · · MS. DELLA MAGGIORE:· That is not what the case

18· ·law states.

19· · · · The Court couched the issue in the absolute correct

20· ·terms in that it must be shown that the new technique has

21· ·gained general acceptance in a relevant scientific community

22· ·and that the expert who is offering that opinion is

23· ·qualified.· That is where it stops.· It should not be read to

24· ·mean that there is some sort of process by which the Court is

25· ·supposed to evaluate the reliability by therefore getting

26· ·into whether or not it has been independently peer reviewed

27· ·or validated.· That is not the issue.

28· · · · · · · · · THE COURT:· I think at some point that Ms.

·1· ·Beles does have every right to challenge that, the

·2· ·reliability.· I just don't think this is the time.

·3· · · · · · · · · MS. DELLA MAGGIORE:· That's correct.

·4· · · · · · · · · THE COURT:· That is the very reason why I

·5· ·wanted to talk with you both this morning.· I brought up the

·6· ·scope of the first prong.· This is a Kelly first prong

·7· ·hearing.· The challenge was -- you're asking me to decide is

·8· ·this a new technique or is it a breakthrough or a significant

·9· ·change in methodology when the motion was first made. I

10· ·found that defense has a right to -- to challenge that first

11· ·prong as to whether it is accepted in the scientific

12· ·community.

13· · · · Whether it is a reliable method, whether each of these

14· ·agencies has adopted an unreliable method, I think defense

15· ·certainly can challenge that.· I just don't think under Kelly

16· ·this is the time.

17· · · · · · · · · MS. BELES:· See --

18· · · · · · · · · MS. DELLA MAGGIORE:· I believe the Court has

19· ·the correct interpretation.

20· · · · · · · · · MS. BELES:· See, I don't know how that could

21· ·happen.· I don't know how we can excise reliability of the

22· ·novel technique from general -- prong three talks about

23· ·whether STRmix is used the way STRmix is supposed to be used,

24· ·doesn't talk about reliability.· Reliability is embedded in

25· ·the general consensus as I wrote it, as I understood all the

26· ·case law.· I'll -- I've been wrong before, I'll be wrong

27· ·again.· But general acceptance is not general acceptance that

28· ·it is tomfoolery, it is general acceptance.· It is accepted

·1· ·as reliable by the relevant consensus of the typical

·2· ·scientific community.· I think reliability is embedded in

·3· ·prong one.

·4· · · · Reliability technique used on this particular case is

·5· ·Mr. Halsing saying -- I mean it may come later as prong

·6· ·three.

·7· · · · The other thing is practically how can I talk about

·8· ·reliability -- how can I make any motion to exclude on

·9· ·reliability issues or on this issue that it's not peer

10· ·reviewed by anybody that is independent which is clearly

11· ·within Kelly unless I ask the witness who is here now about

12· ·reliability?

13· · · · I mean the Court -- I don't -- if I overstepped or I

14· ·didn't clarify, I really viewed that reliability was embedded

15· ·in the general acceptance notion because it has to be

16· ·generally accepted as reliable.· Maybe it's a parenthetical

17· ·that I -- I certainly wrote it that way.· I think that is

18· ·what it means because generally accepted as balderdash would

19· ·certainly not get past Kelly prong one.

20· · · · · · · · · MS. DELLA MAGGIORE:· General acceptance in the

21· ·relevant scientific community, that is all that prong one

22· ·requires and such that if it is the forensic science

23· ·community, it is being generally accepted.· It is being used.

24· ·It is being endorsed.· It is being adopted by those people

25· ·and those experts who understand it, who utilize it, who have

26· ·put it through testing, who have validated it, who can say

27· ·that, yes, we the scientific community of forensic labs and

28· ·all of us scientists out there we generally accept this.

·1· · · · · · · · · THE COURT:· I don't think we're at the point

·2· ·with this witness and on the first prong that you argue you

·3· ·shouldn't have done it, you shouldn't have accepted it, it's

·4· ·not reliable, it's not a good scientific technique, it hasn't

·5· ·had the scrutiny that it should.· The fact that these various

·6· ·agencies have accepted it, they are forensic science --

·7· ·members of the forensic science community.· You're challenged

·8· ·with the witness and you're arguing they shouldn't have done

·9· ·it.

10· · · · Well, if they've done it or not is what we are here to

11· ·learn today, aren't we?· Maybe I'm not making myself clear.

12· · · · · · · · · MS. BELES:· This is like in Kelly, Lieutenant

13· ·Nash was intrical to the imprint of voice analysis, intrical

14· ·in all the training around the world, country.· Dr. Buckleton

15· ·is the same -- is in the same category and we're going to

16· ·have Dr. Buckleton say I developed STRmix, STRmix is good,

17· ·people bought it, people are using it, I reviewed it, I've --

18· ·I held validation studies.· It's all Dr. Buckleton.· There

19· ·has been no independent review.· The general acceptance, I

20· ·can't -- I cannot fathom how that could not involve

21· ·reliability.· If you didn't have reliability, then Sargon

22· ·Enterprises comes rearing its dragon-like head.· I don't

23· ·think prong one -- I mean we always call it prong one.· Prong

24· ·one I always contemplated the reliability part of that.

25· · · · Prong three talks about the correct scientific

26· ·procedure, correct scientific process of STRmix:· Number of

27· ·donors go in, did X, Y, Z happen.· Dr. Halsing will talk

28· ·about it if we get to that point.

·1· · · · · · · · · THE COURT:· If we get to prong three at some

·2· ·point, absolutely you have the right to cross-examine on the

·3· ·issues that you're raising now.· I just, again, don't agree

·4· ·that we're at that point.

·5· · · · · · · · · MS. BELES:· No.

·6· · · · · · · · · THE COURT:· The issue raised initially in your

·7· ·papers had to do with whether this was a new technique or

·8· ·whether it was an evolution in the existing technique of DNA

·9· ·analysis.· I thought that should come from an expert.· That

10· ·is why we are here today as was my ruling on your initial

11· ·motion.

12· · · · Now that we are here, as I said, I wanted to hear from

13· ·both of you this morning so I would know what everyone

14· ·understood to be the scope of the first prong hearing.

15· · · · · · · · · MS. DELLA MAGGIORE:· I understood it to be

16· ·exactly what comports with all the case law under Kelly.· And

17· ·not only that, this area that she wants to attack, she -- she

18· ·can attack that.· She can bring in cross-examination of this.

19· ·She could bring in her own witnesses to try to say that this

20· ·is controversial and you can't trust it.· But what we are to

21· ·deal with here today, the very issue is narrowly defined by

22· ·court, supported by case law, not just what Ms. Beles thinks

23· ·that she wants to read into it.· It is what the case law

24· ·says.· And to then go off about Sargon, this is not a 402

25· ·hearing, this is an admissibility hearing.· That is what it

26· ·is and it is confined to the narrow issue that the Court

27· ·stated correctly before we began this.

28· · · · · · · · · MS. BELES:· I brought a motion.· I was very

·1· ·clear that I argued that, well, DNA evidence has been readily

·2· ·accepted as reliable to relevant scientific community; this

·3· ·particular STRmix testing has not.· That fails prong one of

·4· ·Kelly Fry.· That is the argument I made.· I made Sargon in my

·5· ·original argument as well.

·6· · · · · · · · · THE COURT:· I wish you would have said

·7· ·something this morning.

·8· · · · · · · · · MS. BELES:· All I can do -- say is I apologize

·9· ·for that.

10· · · · Also, if we're only talking about general consensus, I

11· ·don't -- I'm -- I apologize for that.· That's all I can do.

12· · · · But my argument was extremely clear.· I'm not bringing

13· ·up anything new.

14· · · · I'm talking about peer review, Kelly the case.· The time

15· ·is -- now, whether you call it prong one, you call it 402, it

16· ·is not time for cross-examination.· It is time to say this

17· ·evidence is not sufficiently reliable and there is not a

18· ·general consensus or opinion by somebody who doesn't have a

19· ·personal stake in it, therefore, it must be excluded.· That

20· ·is why I'm here, that is what I'm asking for.

21· · · · What I'm asking for is exclusion.· I wasn't asking for

22· ·hearing -- to hear the sound of my own voice.· I was asking

23· ·for a hearing because we don't have independent evidence.· We

24· ·have Dr. Buckleton who is inextricably intertwined with every

25· ·potential validation or peer review.· That is part of the

26· ·Kelly.· I apologize I didn't do it this morning.· I'm doing

27· ·it now.· That is all I can do.· I thought my papers were

28· ·clear and Sargon is not just some random thing that I'm

·1· ·saying.· I said it throughout my papers.· I didn't come in

·2· ·here for ProfMan.· I know the Court didn't.· I came in to

·3· ·argue this should not be admitted into this case because of

·4· ·Kelly and Fry and Sargon.

·5· · · · If I didn't crystallize it right away, please don't hold

·6· ·it against Mr. Davis.

·7· · · · It is not time for cross-examination.· It is a threshold

·8· ·issue.· Dr. Buckleton and Mr. Halsing should not be able to

·9· ·testify to STRmix.

10· · · · · · · · · THE COURT:· What do you mean they should not

11· ·testify to it?

12· · · · · · · · · MS. BELES:· It should be excluded because as

13· ·of the moment we don't have anybody saying this is reliable

14· ·and relied upon in the scientific community except for the

15· ·most bias person they could find who is the developer,

16· ·trainer, educator, and writer about all the STRmix, which is

17· ·just like Lieutenant Nash in Kelly.

18· · · · · · · · · THE COURT:· Do you agree that during this

19· ·hearing this Court must decide whether or not this technique

20· ·in DNA analysis is generally accepted in the forensic

21· ·scientific community?· Do you agree?

22· · · · · · · · · MS. BELES:· No, it doesn't have as reliable.

23· · · · · · · · · THE COURT:· Let's take a break.

24· · · · · · · · · MS. BELES:· Generally reliable would be, I

25· ·agree.

26· · · · · · · · · THE COURT:· Take 15.

27· · · · · · · · · (Recess)

28· · · · · · · · · THE COURT:· So the issue remains as to the

·1· ·scope of cross-examination.

·2· · · · So, Ms. Beles, tell me again where are you going with

·3· ·your cross-examination?

·4· · · · · · · · · MS. BELES:· Where I am going with my

·5· ·cross-examination is that the determiners -- the

·6· ·determination of general acceptance and general acceptance of

·7· ·reliability, which is I believe embedded within the first

·8· ·prong of Kelly, is not met because of a lack of independence

·9· ·of the witness, like Lieutenant Nash.

10· · · · I'll tell you, Judge, I really do not feel good if I did

11· ·not crystallize this this morning.· I apologize for that.

12· · · · But in rereading, reading over again, and reading Kelly

13· ·again, I really realize that Dr. Buckleton has some of the

14· ·same infirmatories as an expert that Lieutenant Nash did in

15· ·Kelly.· My cross-examination was going into what is the peer

16· ·review, what is the reliability.· I was also going off some

17· ·of the direct that was asked about mathematical techniques.

18· ·I understand I didn't object to it because I thought that is

19· ·where we were going.

20· · · · Final question I was asking in terms of reliability,

21· ·this is all known, this isn't any secret, there is a specific

22· ·case that I wanted Dr. Buckleton to explain why there were

23· ·two different results and whether it was STRmix that was used

24· ·twice or if -- it's the Hillary case, with two "l's."· It was

25· ·going to be very -- just a couple more questions, couple

26· ·followups on direct, and I was done.

27· · · · My argument fundamentally is that even if the Court --

28· ·number one, if the Court found that there was acceptance in

·1· ·the community, the Court was getting it from a source that

·2· ·was not reliable and therefore should exclude it.· I also in

·3· ·my papers moved to exclude STRmix entirely because

·4· ·gatekeeping of Sargon.· I was actually almost done.· But the

·5· ·Hillary case was one aspect and I did not.· I did not alert

·6· ·the Court about Lieutenant Nash.· I was not implicit. I

·7· ·thought it was argument I could make at the end.· I think

·8· ·Kelly stands for the general idea that general acceptance has

·9· ·to be acceptance as reliable.· Because general acceptance as

10· ·not reliable or general acceptance as partially reliable

11· ·doesn't make any sense for admissibility.· Again, apologize

12· ·not crystallizing the issue when the Court said it this

13· ·morning.· I think reliable is embedded in it.

14· · · · I think my strongest argument is that of the evidentiary

15· ·problems with Dr. Buckleton testifying as being so -- his

16· ·opinion being so interwoven with his personal interest akin

17· ·to Lieutenant Nash in Kelly.

18· · · · · · · · · MS. DELLA MAGGIORE:· Yes, Your Honor, I would

19· ·like to first point out in defendant's motion to exclude

20· ·STRmix DNA analysis, page 11, line 25, she cites, "The goal

21· ·is not to decide the actual reliability of the new technique,

22· ·but simply to determine whether the technique is generally

23· ·accepted in the relevant scientific community."· She goes on

24· ·to cite this case that I'll give the Court, "If the

25· ·scientific literature discloses the technique is deemed

26· ·unreliable by scientists significant either in number or

27· ·expertise, the Court may safely conclude there is no general

28· ·acceptance."· She cites People v. Barney, 1992 case, 8

·1· ·Cal.App.4th 789 at 810.

·2· · · · She goes on to cite People v. Kelly, "Ideally resolution

·3· ·of the general acceptance issue would require consideration

·4· ·of the views of a typical cross-section of the scientific

·5· ·community including representatives if there are such of

·6· ·those who oppose or question the new technique."

·7· · · · What I would point out to the Court is that it -- it

·8· ·is -- has now become apparent that defense is not asking

·9· ·questions that are relevant as to prong one.· She is rather

10· ·challenging credibility or some perceived bias that in her

11· ·mind she believes exists.· What she in effect is doing is

12· ·ignoring the evidence that is before the Court that shows

13· ·that it has been peer reviewed.· It has been peer reviewed by

14· ·undisclosed referees.

15· · · · · · · · · THE COURT:· But now you're arguing

16· ·reliability.

17· · · · · · · · · MS. DELLA MAGGIORE:· I'm simply stating, Your

18· ·Honor, that she's ignoring what has been testified to by Dr.

19· ·Buckleton as -- as far as, yes, there have been peer reviews.

20· ·She wants to ignore that.

21· · · · And overall, this is not injurious to her client.· She

22· ·still would be able to cross-examine on this issue before the

23· ·trier of fact.· She -- no one is precluding her from

24· ·presenting expert testimony or other people from the relevant

25· ·scientific community to explain contradictory feelings out

26· ·there in the scientific community.

27· · · · · · · · · THE COURT:· Ms. Beles.

28· · · · · · · · · MS. BELES:· So after what was just quoted in

·1· ·my papers, the sentence in my papers at page 12 reads, "The

·2· ·gatekeeping role of the Court requires that the proponent of

·3· ·the evidence make a substantial showing that the proffered

·4· ·methods are generally accepted as reliable."· So I state that

·5· ·there.· Quotation from Kelly at 31 saying, "In determining

·6· ·the question of general acceptance, courts must consider the

·7· ·quality as well as quantity of the evidence supporting or

·8· ·opposing a new scientific technique."· I always said

·9· ·reliable.

10· · · · I'm not ignoring the testimony.· I have a position about

11· ·the testimony.· And perhaps I might make the argument as to

12· ·what is injurious to my client and the Court might make the

13· ·ruling, not the prosecution deciding what I'm thinking about

14· ·it.· I take some issue with that characterization and that

15· ·whole way of arguing that she's trying to do something.

16· · · · So what I'm saying and what I have said from the very

17· ·beginning is that I'm moving to exclude STRmix results.· The

18· ·Court has provided a hearing pursuant to Kelly prong one,

19· ·whether you call it 402, we got down that rabbit hole at one

20· ·point, it doesn't matter.

21· · · · I believe general acceptance in a vacuum.· Without

22· ·general acceptance of reliability is not what Kelly

23· ·contemplates.· I am using the Kelly case to make an

24· ·additional argument about the evidence that has been

25· ·presented by the prosecution.· I couldn't make the Kelly

26· ·argument until -- the Kelly argument I'm making today about

27· ·Dr. Buckleton's bias and about the breaths or lack thereof of

28· ·peer review and independent discussion of general acceptance,

·1· ·I couldn't do that until I knew it was going to be Dr.

·2· ·Buckleton and Dr. Halsing, only I couldn't do it until Dr.

·3· ·Buckleton testified.· I can't say, I don't know, if Ms. Della

·4· ·Maggiore had told me last week, no, I got another expert,

·5· ·that motion -- that issue would have been moot.

·6· · · · So while I'm trying to make the best argument for my

·7· ·client, it is very clear I'm moving to exclude it.· This

·8· ·whole idea of cross-examination, that is the whole point of

·9· ·my motion.· I think the Court understands that.· I don't want

10· ·cross-examination.· I think as a threshold matter STRmix

11· ·should not be admissible based on the Kelly problem and the

12· ·evidence that we heard thus far.· We hadn't heard from Mr.

13· ·Halsing.· I don't think we're going to be able to find any

14· ·peer review, any general acceptance from anybody that doesn't

15· ·have a stake in it.· That is what Kelly stands for in terms

16· ·of the Lieutenant Nash problem.

17· · · · · · · · · THE COURT:· The Lieutenant Nash problem, the

18· ·individual who testified in Kelly, he was found not qualified

19· ·to give an opinion at all.· He was described as a technician

20· ·lacking the background, training, and experience, and

21· ·education to offer an expert opinion; isn't that correct?

22· · · · · · · · · MS. BELES:· It is correct.· I think that is

23· ·where the rubber meets the road.· I don't have the rest of

24· ·the testimony.· I think that may be -- may be a sticking

25· ·point.· I understand that.· As opposed to hurling insults

26· ·across counsel table, what she want -- I take responsibility

27· ·what my argument is, I take responsibility what the law is,

28· ·without doing any of that.

·1· · · · So I understand that may be the issue at the end of the

·2· ·argument.· Whether or not you -- whether or not the Court

·3· ·finds that Dr. Buckleton was different in kind and in

·4· ·expertise than Lieutenant Nash, that is one of my arguments.

·5· ·As we were discussing it I thought the Court -- now, that Dr.

·6· ·Buckleton -- now I'm in cross, the Court should know what I'm

·7· ·doing here because you asked about it this morning and I just

·8· ·didn't do it.· I don't know what else to say.

·9· · · · I ask to be able to complete Dr. Buckleton.· It's not

10· ·that much more.· I ask to be able to ask about the Hillary

11· ·case.· I'm sure Dr. Buckleton has a response that is minimal

12· ·and concise.· A couple followup questions from my -- from my

13· ·notes and then I was done with Dr. Buckleton.· And I would

14· ·ask to complete my argument once Mr. Halsing testified who

15· ·has actually been present the entire time which I didn't

16· ·object to.· I'm not asking for remedy, but I would note that.

17· · · · That is where we are.

18· · · · · · · · · THE COURT:· Counsel, anything further?

19· · · · · · · · · MS. DELLA MAGGIORE:· No.

20· · · · · · · · · THE COURT:· Anything further?

21· · · · · · · · · MS. BELES:· Submitted.

22· · · · · · · · · THE COURT:· I looked at Kelly again after your

23· ·argument this morning.· I feel absolutely that you have and

24· ·should have every right and should challenge the reliability

25· ·of the test.· That is basic.

26· · · · That is a basic defense attack whether we are talking

27· ·about in context of Kelly or not, wouldn't you agree?

28· · · · · · · · · MS. BELES:· Yes.· Yes, sir.

·1· · · · · · · · · THE COURT:· So I cannot agree that this is the

·2· ·time, this is the vehicle in which to do it.

·3· · · · This is the first prong Kelly hearing that we're

·4· ·conducting now.· As I said, that was my very purpose in

·5· ·everyone understanding the scope of today's hearing.

·6· · · · Kelly even uses the term "if accepted by a cross-section

·7· ·of the scientific community, it is therefore reliable."

·8· · · · · · · · · MS. BELES:· I think that begs the question --

·9· ·I didn't mean to interrupt.

10· · · · · · · · · THE COURT:· I know you would, but that's

11· ·what -- in discussing the acceptance in the scientific

12· ·community, that is what the Kelly court indicated.· I'm not

13· ·so certain it's all not founded on the Fry case which we

14· ·don't follow anymore.

15· · · · · · · · · MS. BELES:· Right.

16· · · · · · · · · THE COURT:· Nevertheless, if -- I've relied on

17· ·your representation.· If you're telling the Court you just

18· ·have these few questions left and you wish to garner

19· ·information which may bear you feel on the overall

20· ·credibility of the witness, I'll allow the questions.

21· · · · · · · · · MS. BELES:· Thank you, Your Honor.

22· · · · · · · · · THE COURT:· But I want you to understand what

23· ·my ruling is with regard to the Kelly issue.

24· · · · And I'm not making a ruling that the issue of

25· ·reliability is open in this hearing in the manner in which

26· ·you described, Ms. Beles.

27· · · · Based on what you indicated and your purpose -- what you

28· ·indicated in terms of your further questioning and your

·1· ·purpose, you may ask the questions.

·2· · · · · · · · · MS. BELES:· Thank you, Your Honor.

·3· · · · · · · · · THE COURT:· If we could have the doctor

·4· ·return.

·5· · · · · · · · · (The witness returned to the stand.)

·6· · · · · · · · · THE COURT:· Okay.· Thank you for your

·7· ·patience.

·8· · · · And, Ms. Beles, you may ask your next question.

·9· · · · · · · · · MS. BELES:· Thank you.

10· · · · · · · · · CROSS-EXAMINATION - resumed

11· · · · · · · · · BY MS. BELES:· Q.· ·You are familiar, Dr.

12· ·Buckleton, with the Hillary case out of New York, correct?

13· ·A.· ·Yes.· Yes.

14· ·Q.· ·In that case, was there a problem with the STRmix

15· ·analysis?

16· ·A.· ·No.

17· ·Q.· ·Okay.· Could you explain what happened with the PGS in

18· ·that case?

19· ·A.· ·There was no DNA evidence given at all in the case.

20· · · · In the Fry hearing for the case --

21· ·Q.· ·That is what I meant.

22· ·A.· ·-- His Honor ruled this court finds the STRmix has been

23· ·developed --

24· ·Q.· ·Before the Court's ruling, which we will get to, let me

25· ·ask you, were you involved in the Fry hearing in the Hillary

26· ·case?

27· ·A.· ·Yes.

28· ·Q.· ·Did you testify?

·1· ·A.· ·Yes.

·2· ·Q.· ·And what year was that?

·3· ·A.· ·2016.

·4· ·Q.· ·Were you the analyst -- was there -- was STRmix utilized

·5· ·to analyze a multiple -- any DNA evidence in the Hillary

·6· ·case?

·7· ·A.· ·Yes.

·8· ·Q.· ·Was another PGS used as well?

·9· ·A.· ·I believe so.

10· ·Q.· ·And were -- did the two of them -- the two different

11· ·PGS, probabilistic genotype software, systems, did they come

12· ·up with different results?

13· ·A.· ·I'm not sure.

14· ·Q.· ·Okay.· And was STRmix admitted in that case?

15· · · · · · · · · MS. DELLA MAGGIORE:· I'm going to object to

16· ·that question.

17· · · · · · · · · THE COURT:· Sustained.

18· · · · · · · · · MS. BELES:· Okay.

19· ·Q.· ·Did you testify at the trial in the Hillary matter

20· ·regarding STRmix?

21· ·A.· ·No.

22· ·Q.· ·You provided a number of articles to the prosecution and

23· ·then thus probably to me in preparation for this hearing,

24· ·correct?

25· ·A.· ·Yes.

26· ·Q.· ·Did you provide any list of questions for the prosecutor

27· ·prior to this hearing?

28· ·A.· ·Yes.

·1· · · · · · · · · MS. DELLA MAGGIORE:· Objection, calls for work

·2· ·product.

·3· · · · · · · · · MS. BELES:· I'm not asking the topic.

·4· · · · · · · · · THE COURT:· Just whether or not they were

·5· ·provided, overruled.

·6· · · · · · · · · MS. BELES:· Q.· ·Did you provide a list of

·7· ·questions?

·8· ·A.· ·Yes.

·9· ·Q.· ·That -- let me finish, just to get it out.

10· · · · Did you provide a list of questions for the prosecutor

11· ·to ask you in this hearing?

12· ·A.· ·Yes.

13· ·Q.· ·Did you provide a list of questions to me for -- that I

14· ·should ask of you?

15· ·A.· ·No, I don't think I did.

16· ·Q.· ·Did you have multiple meetings with Ms. Della Maggiore

17· ·regarding your testimony in this case?

18· · · · · · · · · MS. DELLA MAGGIORE:· Objection, relevance.

19· · · · · · · · · MS. BELES:· Bias, interest, and motive.

20· · · · · · · · · THE COURT:· Are you going very far with this?

21· · · · · · · · · MS. BELES:· Not that far, just a number.

22· · · · · · · · · THE COURT:· That is fine.

23· · · · For the record, the objection is overruled.

24· · · · · · · · · THE WITNESS:· One phone call and one meeting.

25· · · · · · · · · MS. BELES:· Q.· ·You've talked about MCMC

26· ·being relied upon in the general -- being generally accepted

27· ·as a mathematical proposition, correct?

28· ·A.· ·Yes.

·1· ·Q.· ·MCMC, current form, has been around for approximately

·2· ·how long?

·3· ·A.· ·Fortyish -- more than 40ish years.· Much more than 40

·4· ·probably.

·5· ·Q.· ·And MCMC is generally accepted in the scientific

·6· ·community, correct?

·7· ·A.· ·Yes.

·8· ·Q.· ·Oh, the prosecutor asked you if the mathematical

·9· ·methodology that STRmix performs was reliable, you answered

10· ·yes; do you recall that?

11· ·A.· ·Yes.

12· ·Q.· ·Ms. Della Maggiore then asked you the basis of your

13· ·opinion and you indicated millions of trials?

14· ·A.· ·Yes.

15· ·Q.· ·I think you may have meant -- I inquire, did you mean

16· ·legal trials or a different type of trial?

17· ·A.· ·Different type of trial.

18· ·Q.· ·What type of trial did you mean?

19· ·A.· ·I think the most specific was false donor trials.

20· ·Q.· ·Well, could you explain to us what the word "trial"

21· ·means within the context of scientific testing?

22· ·A.· ·In the context I'm using it, we take a false donor and

23· ·test it against the mixture and the desirable outcome is

24· ·indications of exclusion for the false donors.

25· ·Q.· ·Meaning if the PGS is working correctly, it should

26· ·exclude the false donor, correct?

27· ·A.· ·The vast majority of them, yes.

28· ·Q.· ·Vast majority of the trials, I mean just in one?

·1· · · · That was too conversational.

·2· · · · In a false donor trial, just a single let's run this one

·3· ·time, it is hopeful that the PGS would be able to exclude the

·4· ·false donor as -- as the accurate result?

·5· ·A.· ·Can I say officially answer yes, as far as gives

·6· ·numerical output, not the word "exclusion."

·7· ·Q.· ·I understand that.

·8· · · · Okay.· There would be a numerical exclusion output a

·9· ·false donor trial, correct?

10· ·A.· ·Can I insert the word "indication," numerical indication

11· ·of exclusion.

12· ·Q.· ·Thank you.· I want to clarify trial.· Thank you.

13· · · · · · · · · MS. BELES:· Check a few notes, Your Honor. I

14· ·believe I'm done.

15· · · · · · · · · (Pause)

16· · · · · · · · · MS. BELES:· Q.· ·Prefacing this with a legal

17· ·argument, in order to make the arguments that I discussed at

18· ·the break, hypothetically if STRmix were found to be

19· ·unreliable, would that have a deleterious effect upon your

20· ·reputation in the scientific community?

21· · · · · · · · · MS. DELLA MAGGIORE:· Objection, relevance and

22· ·speculation.

23· · · · · · · · · THE COURT:· Overruled.

24· · · · · · · · · THE WITNESS:· Yes, I think so.

25· · · · · · · · · MS. BELES:· Q.· ·Is it therefore in your

26· ·interest that STRmix be admitted in as many courts as

27· ·possible?

28· ·A.· ·Again, simply yes.

·1· · · · However, I just do not have that belief structure, I

·2· ·would never seek to deceive a Court.

·3· · · · · · · · · MS. BELES:· Okay.· Thank you very much, Dr.

·4· ·Buckleton.

·5· · · · · · · · · THE COURT:· Anything else?

·6· · · · · · · · · MS. DELLA MAGGIORE:· No, Your Honor.

·7· · · · · · · · · THE COURT:· All right.· Thank you, Doctor.

·8· · · · · · · · · MS. DELLA MAGGIORE:· People at this time would

·9· ·ask to admit People's Exhibit 2 into evidence.

10· · · · · · · · · MS. BELES:· I object.

11· · · · Submitted.· I think I said that on the record in the

12· ·middle.

13· · · · · · · · · THE COURT:· People's 2 is a list of those

14· ·members of the forensic scientific community that have

15· ·adopted the use of the STRmix; is that correct?

16· · · · · · · · · MS. DELLA MAGGIORE:· Correct.

17· · · · · · · · · MS. BELES:· Your Honor, it was my memory the

18· ·testimony indicated they were not all on that list, had

19· ·gotten to the use, but the testimony would be clear on that

20· ·than my memory this late in the day.

21· · · · So I only take issue with the idea of use versus

22· ·acquired or the word I was using was utilized.· Utilize, I

23· ·would agree that the witness testified to that.· Whether or

24· ·not they were actually using it was a different question in

25· ·my mind.

26· · · · · · · · · THE COURT:· Matter submitted?

27· · · · · · · · · MS. DELLA MAGGIORE:· Submitted.

28· · · · · · · · · MS. BELES:· Submitted.

·1· · · · · · · · · THE COURT:· People's Number 2 is admitted.

·2· · · · · · · · · (People's Exhibit Number 2 was received in

·3· · · · · · · · · evidence.)

·4· · · · · · · · · THE COURT:· Should we have the evening recess?

·5· · · · · · · · · MS. DELLA MAGGIORE:· No, I don't think so.

·6· · · · · · · · · THE COURT:· I need to remember Mr. Davis is in

·7· ·custody, leaves at 4:15.

·8· · · · · · · · · MS. DELLA MAGGIORE:· Absolutely.

·9· · · · · · · · · THE COURT:· 9:15, 9:30 tomorrow.

10· · · · Are you traveling back and forth?

11· · · · · · · · · MS. BELES:· I'm traveling.· 9:30?

12· · · · · · · · · THE COURT:· Makes it easier.

13· · · · · · · · · MS. BELES:· I can make it right at 9:30.· 9:30

14· ·it is.

15· · · · · · · · · THE COURT:· Ms. Della Maggiore, did you have

16· ·something else?

17· · · · · · · · · MS. DELLA MAGGIORE:· Would the Court like me

18· ·to utilize the next couple minutes to establish the next

19· ·witness?

20· · · · · · · · · THE COURT:· No.

21· · · · · · · · · MS. DELLA MAGGIORE:· Wait until tomorrow?

22· · · · · · · · · THE COURT:· Wait until tomorrow.

23· · · · · · · · · MS. DELLA MAGGIORE:· Thank you.

24· · · · · · · · · THE COURT:· Another exhibit, this goes back to

25· ·Ms. Beles.

26· · · · Court is adjourned.

27· · · · · · · · · (Court recessed at 4:09 p.m.)

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·1· ·STATE OF CALIFORNIA· · )· · · · · · · · · · · · · · )· ss.·2· ·COUNTY OF SAN JOAQUIN· )

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·6· · · · · · · · · I, KELLIE A. GAFF, Official Court Reporter

·7· ·of the Superior Court of the State of California, do hereby

·8· ·certify:

·9· · · · · · · · · That I was present in the Superior Court,

10· ·County of San Joaquin, State of California, at the hearing of

11· ·the above-entitled matter, that at said time and place, I

12· ·took down in shorthand notes all the testimony given and

13· ·proceedings had; that I thereafter caused said shorthand

14· ·notes to be transcribed into longhand typewriting by

15· ·computer-aided transcription, the above and foregoing being a

16· ·full, true and correct transcript of all testimony taken and

17· ·proceedings had.

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21· · · · ________________________________________· · · · · Official Court Reporter, C.S.R. No. 756722

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