THE COURT: Let the record reflect this is a hearing out of the presence of jury. Let the record also reflect that the witness Michael DeGuglielmo is present.
MR. CROW: Your Honor, we've been speaking with the witness about the evidence he's getting ready to submit. My understanding is there was some cuttings from jeans of one of the victims -- one or more --
MR. FOGLEMAN: I think there were two pair of pants that the cuttings were from.
MR. CROW: The witness will be testifying that they have definitely found some DNA in the cutting. The part I think we are going to be objecting to is that he also I believe will be testifying that he believes or there is a possibility -- I'll let him put it in his own phraseology -- that that DNA in some way indicates sperm. From my speaking to him, I'm not convinced it meets the qualifications when he can make that. He uses "believe" and "probably came from" and that concerns me.
MR. STIDHAM: We'd also like to state that it doesn't have any relevancy. As I understand it, the fact that there is DNA there doesn't necessarily mean that ties the defendant or any of the co-defendants to anything, and I believe the purpose that the prosecution is trying to introduce this is for the fact that there may be semen or sperm on the pants, and we would submit that in the event the Court feels it is relevant, we would submit that it is highly prejudicial and doesn't have any probative value.
THE COURT: Well, all evidence is prejudicial to someone. The question is whether or not it is probative and proper -- or extreme prejudice would be a different matter. But certainly the presence of sperm on the pants of the decedents would be relevant evidence.
MR. STIDHAM: I don't think the witness can say that with any degree of certainty.
THE COURT: I don't have any idea what he is saying. If your objection is that he's unable to testify as to the presence of sperm because of lack of qualifications or because it is not a scientific method that is recognized or a novel or new approach to some scientific method, then maybe you have a valid objection.
MR. CROW: It is not so much that the test isn't recognized. I think if he had a proper sample, it could be more valid.
THE COURT: That probably goes to the weight of his testimony, and you can cross examine him on the factual basis of any opinion he might render.
If he is prepared to testify that he has the scientific knowledge and education in the field of genetic comparisons and coupled with that education, experience and ability he applied normally recognized scientific tests to the submitted sample and based upon his lab findings he is prepared to testify that he has an opinion, I'm going to allow him to testify as to what that opinion is.
You can challenge the basis of that for it. You can cross examine him on it and it all goes to the weight, not the admissibility of his testimony.
MR. CROW: I understand that position, but with the amount of damage this could do with the jury, if the jury were to believe this considering that he says, "Probably indicates, might indicate." That just really concerns me. I don't know if it can be cured on cross examination.
THE COURT: If it is couched in the proper terms that he has an opinion based upon some scientific basis and coupled with his education, he will be permitted to draw those conclusions.
An opinion is a speculation to begin with. That's the kind of speculation that an expert is qualified and permitted to do.
I haven't heard what he's got to say, other than that sketchy outline, whether or not it meets the test of admissible evidence or not.
MR. STIDHAM: Your Honor, he's going to testify that there's DNA present on these cuttings from the pants of the victim. He cannot tell for sure if it came from an ape, a gorilla, a baboon or a human. He can't tell whether it came from blood or semen. He says it is likely that it came from sperm. There might have been sperm present, but he doesn't know with any degree of certainty, and we think that is highly prejudicial. If he could come in here and say, "Yes, that is definitely semen," or "Yes, that is definitely sperm" --
THE COURT: Well, wait a minute. What is it you are prepared to testify to based upon your experience, education and scientific findings?
THE WITNESS: There are a large number of specimens here, the one that we are interested in -- there are actually two specimens, Q6 and Q10 which were cuttings from some pants.
The initial information that we were given on this was that they were, what I guess would best be phrased as potential seminal stains. That's important in our perspective because it determines how we'll actually perform the extraction, the process of removing the DNA from the material.
In any potential sexual assault specimen where the possibility exists for mixed specimens we use what is called a differential extraction. The purpose there is to separate sperm and nonsperm components from other material. So we can try to eluicdate which type was attributed to which component.
The first thing that is done with any PCR based tests -- there are basically two types of DNA testing -- and this because of the very small amount of material to work with was a PCR based test. And that is a process by which amplification of the material occurs for the analysis. The first portion we do is a quantitation of determining how much material is there. First of all, if there is anything there and, if so, how much is there.
With these two specimens as well as with -- we had run a number of specimens, some of which are not affiliated with this particular case in this quantitation, and used that same quantitation for the determination of the amount of DNA.
In this particular quantitation with this case those two items show a very small, marginal amount of DNA on the male fractions of those two items of evidence.
What that interpretationally would mean is that there was some DNA of human origin. As I explained earlier, when we talk about speciation of DNA or any other material, it is done within certain constraints that are placed upon us by actual relationship to the organisms themselves.
When we talk about human, there is very little differentiation, be it DNA or protein or blood markers or what, between human beings and other higher primates; specifically, gorillas, chimpanzees and great apes.
There are vast differences between other organisms. But because of that similarity and the relationship, there are similarities in the DNA that's present. And most of the probes you will find used in DNA testing react both with great apes, chimpanzees as well as humans.
What we know is there is DNA present on the specimens that, a small amount, is from a higher primate. I cannot tell you, as you said, that it did not come from a chimpanzee or a gorilla if someone would like to believe that. But what I can tell you is it is from a higher primate.
The second thing I can tell you is the two fractions that come from that are what we refer to as epithelial, or nonsperm, and male, or sperm fractions, because they represent in the prototypical sexual assault case the sperm cells from a male contributor and epithelial cells from a female contributor. What we would expect to see is anything other than sperm cells in the epithelial or nonsperm portion.
In this particular case we detected no DNA in the epithelial or nonsperm portion of those two samples and a very small amount of DNA in the male or sperm portion of those two samples, the interpretation from that being that there likely was a small amount of sperm present on those garments.
THE COURT: Is that a conclusion you could draw based upon your experience, training and education, and is it based upon recognized scientific findings?
THE WITNESS: Yes, I believe so.
THE COURT: All right, gentlemen, what else is there to object to?
MR. STIDHAM: You told us a moment ago before we went on the record that you couldn't say for sure that there were sperm present.
THE WITNESS: That's correct, and I can't because I did not personally visually see sperm. In any scientific application the only definitive way that I know of that people will say there are sperm is if they are visually observed under a microscope. I don't feel comfortable saying for sure that there are until I do. The initial screening test done in this case was an acid phosphatase, and that indicates the presence of semen, not necessarily even guaranteeing that there are sperm cells there tough.
THE COURT: Just the hormone.
THE WITNESS: That and the fluid present -- that's correct -- the acid phosphatase. What then is done if there are sufficient specimens is to take a portion of that and do a microscopic examination to visually see sperm cells. That is considered conclusive for there being sperm cells. I did not do that. I don't believe it was done by the lab here, once again because of the limited specimen.
So I can't tell you conclusively that there are sperm cells there. I can tell you that what we see is indicative of that and indicative of a very small amount of it and after discussing it with Kermit Channel to try to make some interpretation from the results, it appeared to be consistent with their findings as well and the activity that he saw with the acid phosphatase. I cannot give you a definitive statement. All I can tell you is what my interpretation would be from what I've seen.
THE COURT: I'm going to allow him to testify. It simply goes to the weight of his testimony not to its admissibility. You can point all these things out on cross examination.
MR. STIDHAM: We want to make sure our objections are noted that we feel this could possibly confuse the jury.
THE COURT: That's another question. In what way will his testimony elucidate or benefit or assist the jury?
MR. FOGLEMAN: The defendant in his statement described sexual type act occurring, and this is another thing to corroborate what the defendant said since the defense is alleging a false confession.
MR. STIDHAM: Judge, the Medical Examiner said there was no evidence of a sexual assault.
MR. FOGLEMAN: He also said he was familiar with literature which indicated that you could have sexual abuse and no findings.
THE COURT: I don't think that is what he testified to, that there was no evidence of sexual assault. He testified about the rectum of two of them being dilated --
MR. STIDHAM: -- Most likely caused by the water.
THE COURT: Again that is a question of interpreting his testimony and arguing to the jury. I don't think he gave an opinion that there was no sexual -- he just said he couldn't tell and didn't find any sperm.
MR. CROW: Wasn't any damage.
THE COURT: Wasn't any extensive damage to the inside of the rectum. Although he did testify that the mouths of one or two of the boys were torn up on the inside.
MR. FOGLEMAN: Their ears were all bruised.
MR. STIDHAM: But he said that could have been caused by --
THE COURT: Again that's argument. You can interpret that testimony for the jury and argue it either way you choose to. I'm going to allow him to testify. You can point out all the things you just mentioned so I guess it is some relevant evidence that possibly sperm existed in trace amounts on the clothing of the two victims and this is what we call trace evidence.
MR. STIDHAM: He can't say there's sperm. He can only say --
MR. FOGLEMAN: He said he couldn't positively say there was sperm.
THE WITNEES: There are a lot of ways to phrase things. I certainly can -- and this happens in a lot of trials -- different people wanting my words to be phrased in different fashions. The bottom line is, no, I can't positively tell you there are sperm, but that's because I didn't see them. And the only way that I or anyone else I know feels comfortable with saying they are there is to see them, but that doesn't mean that the results don't indicate to me that there could have been sperm cells there because we see DNA where we would see DNA from sperm cells.