Groden Goes to CourtDay One At the O.J. Simpson Trial
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Groden Goes to Court Day One At the O.J. Simpson Trial |
1
1 SANTA MONICA, CALIFORNIA; WEDNESDAY, DECEMBER 18, 1996
2 8:59 A.M.
3 DEPARTMENT NO. WEQHON. HIROSHI FUJISAKI, JUDGE
4 APPEARANCES: (AS HERETOFORE NOTED.)
5 (REGINA D. CHAVEZ, OFFICIAL REPORTER)
6
[Testimony of witnesses preceeding Groden omitted.]
7 MR. LEONARD: Call Robert Groden.
8
9 ROBERT GRODEN,
10 called as a witness on behalf of Defendants, was duly
11 sworn and testified as follows:
12 THE CLERK: You do solemnly swear that the
13 testimony you may give in the cause now pending before
14 this Court, shall be the truth, the whole truth, and
15 nothing but the truth, so help you God?
16 THE WITNESS: I do.
17 THE BAILIFF: Please be seated.
18 THE CLERK: And, sir, if you would please state
19 and spell your name for the record.
20 THE WITNESS: Robert Groden, G-r-o-d-e-n.
21
22 DIRECT EXAMINATION
23 BY MR. LEONARD:
24 Q. (BY MR. LEONARD) Morning, Mr. Groden.
25 A. Morning.
26 Q. How are you presently employed?
27 A. I'm a writer.
28 Q. Have you had -- how old are you?
74
1 A. 51.
2 Q. During the course of your life, have you
3 had experience in the field of photography, and in
4 particular, in the field of the alteration of
5 photographic images?
6 A. Yes.
7 Q. Okay.
8 Just in general terms right now, let me
9 ask you this: Have you also had experience in the
10 analysis of photographic images to determine whether
11 or not they have been altered?
12 A. Yes.
13 Q. Have you been engaged by the defense to
14 review a particular photograph or set of photographs?
15 A. Yes.
16 Q. Which photograph is that?
17 A. It's a photograph that purports to show
18 Mr. O.J. Simpson walking across the end zone of a
19 football field.
20 MR. LEONARD: Can we see that?
21 MR. GELBLUM: Objection. Can we have -- can we
22 approach on qualifications?
23 MR. LEONARD: I'm going to get to that. I want
24 to get to the purpose for the witness being here.
25 MR. GELBLUM: Objection. I'd like to have the
26 qualifications.
27 MR. LEONARD: I'm not going to ask for an
28 opinion --
75
1 THE COURT: Approach the bench.
2
3 (The following proceedings were
4 held at the bench with the
5 reporter:)
6
7 THE COURT: Okay. What's the objection?
8 MR. GELBLUM: The objection is this man's
9 unqualified. This man's not qualified to render any
10 expert opinions about alteration of photographs, Your
11 Honor.
12 MR. LEONARD: I'm going to establish his
13 qualifications. I just wanted to demonstrate -- I'm
14 not even asking him for a conclusion.
15 MR. GELBLUM: It's a Kennedy conspiracy not --
16 He works repairing photo processing machines.
17 MR. LEONARD: I can establish his -- the
18 foundation for his qualifications, and I will.
19 THE COURT: Give me an offer of proof.
20 MR. LEONARD: He worked for years in the area
21 of the alteration of negatives and photographic
22 images, both still and motion picture.
23 MR. GELBLUM: Not true.
24 MR. LEONARD: It is true.
25 He worked -- he worked in optical
26 effects. He knows exactly how photographs are altered
27 legitimately and illegitimately. He was a staff
28 consultant for the Select House Committee on
76
1 Assassination. He's reviewed hundreds and
2 thousands -- or hundreds, thousands of photographs for
3 the purpose of determining both for authenticity and
4 evidentiary value, both for the Assassination
5 Committee and thereafter for his own research and
6 writing.
7 THE COURT: Has he qualified as an expert
8 before?
9 MR. LEONARD: He has not qualified as an expert
10 other than in the Senate -- the House Select Committee
11 that he was used as an expert. He has not
12 testified -- he has not testified in a court of law as
13 far as I know.
14 MR. GELBLUM: He testified in his deposition he
15 never qualified as an expert, in court as an expert.
16 THE COURT: Ladies and gentlemen, we're going
17 to excuse you for a little while. Don't talk about
18 the case, don't form or express any opinions.
19 (Pause.)
20 THE CLERK: For the record, just while the
21 jurors are here, too, mention was made of
22 Exhibit 2036 in the last series and it should have
23 been referred to as 2038.
24
25 (Jurors exit courtroom.)
26
27
28
77
1 (The following proceedings were
2 held in open court outside the
3 presence of the jury.)
4
5 THE COURT: The record will show that the
6 jurors left the courtroom.
7 We're conducting a hearing under 402 of
8 the evidence code with regard to the witness's
9 qualifications.
10 Go ahead.
11
12
13
14 402 HEARING
15
16 VOIR DIRE DIRECT EXAMINATION
17 BY MR. LEONARD:
18 Q. First of all, to lay a foundation, what
19 tests were you asked to accomplish or to undertake for
20 the defense in this case, just in very general terms?
21 A. To examine the photographs and to render
22 an opinion on whether I found any evidence of
23 falsification.
24 Q. Now, let's go back.
25 When did you first start your experience
26 in the field of photography, generally?
27 A. Basically as a child, as about a 10 or
28 12-year old.
78
1 Q. And have you continued to be actively
2 involved in the field of photography, generally, since
3 then?
4 A. Yes.
5 Q. Okay.
6 When was the first time you were employed
7 in any respect in the field of photography?
8 A. Around 1969.
9 Q. What was that employment, sir?
10 A. I was hired by a motion exhibit picture
11 optical house in New York City and was hired as an
12 optical technician.
13 Q. And describe in as much detail as you can
14 what you did, and with particular emphasis on the
15 creation of alterated (sic) images of any kind in
16 either motion picture or still photography?
17 THE COURT: Alterated?
18 MR. LEONARD: Yeah.
19 MR. GELBLUM: Altered.
20 MR. LEONARD: Altered. Excuse me. Altered
21 images. That's like visualization, I guess.
22
23 (Laughter.)
24
25 A. In the motion picture optical field, a
26 large percentage of the work that's done is
27 specifically to alter images, adding titles, doing
28 split screens, inserting images within another image.
79
1 I would say that probably between 60 and
2 75 percent of all the work that's done involves that.
3 Q. Okay.
4 And how long did -- and in order to do
5 that, just in general terms, what techniques did you
6 use when you were working in this field?
7 A. Well, there are various different ways;
8 matte insertion, split screens, using masking
9 techniques either through film or through repositions
10 of shutters, changing sizes, correcting
11 irregularities, things of that nature. Product shots,
12 inserting, say, a can of furniture spray or something
13 of that nature within a background.
14 Q. Okay.
15 And how long did you work in the field?
16 You described a job you had when you were
17 working in optical effects in motion pictures.
18 Did you also work in the field of optical
19 effects in still photography?
20 A. Yes, I did.
21 Q. Okay.
22 And for how long a period of time did you
23 do that?
24 A. Well, as I said, I started in the optical
25 field by 1969, and to a degree I'm still doing it
26 today.
27 Q. And with regard to still photography in
28 particular, where was your first employment where you
80
1 were involved in the creation of altered images for
2 purposes of advertising or any other purpose?
3 A. I was employed by a company called 2 by 2
4 Slides in New York City.
5 Q. How long were you employed there?
6 A. For a few years.
7 Q. Okay.
8 And what in particular, what types -- you
9 gave the example of a product shot with a can
10 inserted.
11 Just explain that a little bit more, and
12 explain the process that you would go through with
13 that?
14 A. Well, the most likely way, the way where
15 it's usually done is you would have your product shot
16 preshot to the sizing and position that you would want
17 it to be on one piece of film, you would have a
18 background on another piece of film.
19 You would photograph the product shot on
20 to a piece of black-and white-high contrast film
21 called Kodalith, K-o-d-a-l-i-t-h, you would then
22 retouch the Kodalith to make sure that you have
23 blacked out everything that you want to mask out of
24 the image.
25 You then do a negative of the original
26 Kodalith in what they call register -- a pin register.
27 THE COURT REPORTER: P-i-n?
28 THE WITNESS: Yes.
81
1 A. You then take a piece of unexposed film
2 or photographic paper, however you want to do it, and
3 you photograph the product with the clear core matte
4 which is black all around and clear in the center.
5 You then go back and take your background
6 and the negative of the clear core matte which is
7 called a black core matte. The purpose of a matte is
8 to eliminate photographing a double image in the same
9 space.
10 You then project that down or photograph
11 that down, depending on the technique used, and what
12 you're left with at the end is what's known as a
13 composite image.
14 You would have the insert of your product
15 shot against an existing background.
16 Q. Now, that's what -- you've just described
17 this process of creating an altered photographic
18 image.
19 I take it that's something that's done in
20 the photographic industry, particularly in
21 advertising, frequently, correct?
22 A. I would dare say possibly every day.
23 Q. Okay.
24 And that's the -- was that the type of
25 work that you did for some period of time in New York
26 in the position that you were describing?
27 A. Yes.
28 Q. Now, by virtue of your experience both in
82
1 the -- in optical effects in film and also these
2 optical effects in still photography, did you become
3 knowledgeable about the various methods to alter
4 photographs, including the one that you just
5 mentioned?
6 A. Yes.
7 Q. Are you familiar with the indicia of
8 those methods to alter photographs?
9 In other words, looking at a photograph
10 or a negative to determine whether or not such
11 alteration has taken place?
12 A. Yes.
13 Q. Okay.
14 Now, there came a time that you became
15 engaged with the House Select Committee on
16 Assassination; is that correct?
17 A. That is correct.
18 Q. Can you explain, first of all, what the
19 Committee was, to the Court?
20 A. The House Assassination Committee or the
21 House Committee on Assassinations, as it was formerly
22 known, was an organization or group formed by Congress
23 to investigate the work of the Warren Commission.
24 They were to study the Warren Report, to
25 question witnesses that may not have been questioned
26 by the Warren Commission, and to determine the
27 accuracy or fallacy of the Warren Commission report.
28 Q. Now, among the vast amount of evidence
83
1 that this committee was investigating was certain
2 photographic and motion picture evidence; is that
3 correct?
4 A. That is correct.
5 Q. Tell us, if you will, what role, if any,
6 you had for the Committee in the analysis of this
7 evidence, the gathering of it, the analysis of it, and
8 in particular, for purposes of authenticity?
9 A. I was named as the committee staff
10 photographic consultant. The work I did included
11 identifying and defining images on film and
12 photographs that were to be analyzed by the Committee,
13 and in some cases analyzing them myself.
14 Q. Okay.
15 Now, how long did you -- From when to
16 when did you hold that position?
17 A. The Committee's formal life was 1977 to
18 1978. I was working for them and elements of the
19 Committee for about six months prior to the official
20 forming of the -- of the Committee itself, and their
21 investigation, and for about another six months after
22 they officially closed down as well.
23 Q. For a total of how long?
24 A. For about three years.
25 Q. Now, was this -- was this a full-time
26 everyday job?
27 A. No.
28 Q. Okay.
84
1 Describe for the Court, if you will, how
2 often you would consult, and at least give an estimate
3 of that, if you will?
4 A. It would vary. There might be times when
5 there would be several days in a row. There would be
6 times when a week would go by where there would be
7 nothing, and two weeks would go by. In some cases it
8 was a couple of hours. Sometimes it was by telephone.
9 Sometimes it was in person. It involved testimony
10 before the House Committee on the first day of the
11 public hearings.
12 It would be impossible to give an exact
13 description of the time involved because it varied.
14 No two weeks were possibly ever the same.
15 Q. There was a -- just so the Court has an
16 idea of the type of materials we're talking about,
17 there were two photographic or motion picture items
18 that many of us are familiar with, that you had direct
19 contact with or you analyzed; is that correct, with
20 with regard to the House Select Committee?
21 A. Probably a great many more than two.
22 Q. Well, the one I'm thinking of is a rather
23 famous picture of Lee Harvey Oswald in the backyard of
24 his -- of his house, purportedly holding a rifle?
25 A. That's correct.
26 Q. Did you analyze that photograph for
27 purposes of authenticity?
28 A. Yes, I did.
85
1 Q. Okay.
2 And that was in conjunction with your
3 work on the Committee; is that right?
4 A. That's correct.
5 Q. Did you -- there was also a motion
6 picture that many of us have heard about called the
7 Zapruder film.
8 Are you familiar with that?
9 A. Yes.
10 THE REPORTER: Could you spell Zapruder,
11 please.
12 MR. LEONARD: Z-a-p-r-u-d-e-r.
13 Q. (BY MR. LEONARD) Now, the Zapruder film
14 was filmed -- shot by a bystander just as President
15 Kennedy was shot?
16 A. That's correct.
17 Q. Did you have any role in analyzing that
18 piece of film?
19 A. Yes, I did.
20 Q. Just in general terms, explain that to
21 the Court.
22 A. The history that relates to that I had
23 worked on the Zapruder film for some years prior to
24 the creation of the House Committee. It was my
25 releasing of the film on a TV show called "Good Night
26 America" in 1975 that directly led to the House
27 Committee being formed in the first place.
28 When the Committee was formed, I was
86
1 hired as their staff photographic consultant, and I
2 worked with the formal photographic panel in analyzing
3 the Zapruder film and others. And we would have
4 sessions where we would sit and study individual
5 frames, where we would analyze motion, reaction time,
6 possible indication of timing of shots, things of that
7 nature.
8 Q. You mentioned the photographic panel,
9 were you a -- were you working in conjunction with the
10 photographic panel?
11 A. Yes, I was.
12 Q. Okay.
13 Now, you have continued -- you have
14 written several -- you've written books about the
15 Kennedy assassination; is that correct?
16 A. That is correct.
17 Q. Is it fair to say that those -- that in
18 preparing those books and in researching that, you had
19 to look at, analyze, and examine, hundreds or
20 thousands of photographs concerning the Kennedy
21 assassination?
22 A. Yes.
23 Q. And in the course of that, did you have
24 to make determinations as to whether or not
25 photographs were authentic?
26 A. Yes.
27 Q. And you've done that for how many years,
28 sir?
87
1 A. About 30 years.
2 Q. Now, you don't have a college education?
3 A. No.
4 Q. Okay.
5 Do you have any formal training in
6 photography?
7 A. No.
8 Q. Have you been -- have you worked around
9 photography in areas other than what you've described?
10 In other words, I've talked about optical
11 effects and I've talked about both motion picture and
12 still photography.
13 Have you worked in other fields relating
14 to photography or other businesses? Let's put it that
15 way.
16 A. I have. I have worked in areas where --
17 where I've done work with computers -- computers
18 relating to photography, yes.
19 Q. Have you had experience actually
20 repairing various types of photographic processing
21 machines?
22 A. Yes, I have.
23 Q. Okay.
24 And how long did you do that?
25 A. Maybe 14 years or so.
26 Q. Okay.
27 And by virtue of that experience, did you
28 become familiar not only with the indicia of altered
88
1 images and photographs and the manner in which
2 photographs can be altered, but actually some of the
3 machinery that's used in altering, the actual minutia
4 of the machinery that's used?
5 A. Yes. Using -- using the -- the machinery
6 you become familiar with it and the mechanical
7 processes involved, yes.
8 Q. And you actually were involved in the
9 servicing of these machines?
10 A. Servicing and photo processing of the
11 machines, yes.
12 Q. Okay.
13 Now, you're not a professional witness?
14 A. No.
15 Q. From time to time have you -- have others
16 consulted with you about the authenticity of
17 photographs or the analysis of photographs?
18 A. Yes.
19 Q. Okay.
20 Was there an occasion when the "National
21 Enquirer" actually contacted you to authenticate
22 the -- attempt to authenticate a photograph?
23 A. Yes.
24 Q. And when was that, sir, the first time?
25 A. Approximately 14 years ago.
26 Q. Okay.
27 Can you describe in general terms what
28 you did, and what the situation was?
89
1 A. The situation was that someone had
2 apparently come to them and represented a photograph
3 of -- of voodoo -- a voodoo ritual or something of
4 that nature, and there was an item within the picture
5 that a photographer claimed was a photograph of a --
6 of a spirit or something that he had been able to
7 conjure up and photograph.
8 And the "Enquirer" wanted me to
9 authenticate it and --
10 Q. Were you able to?
11 A. No. As a matter of fact, I discovered
12 that there was a natural explanation for that problem.
13 Q. And just in general terms, how were you
14 able to determine that, sir, for the "National
15 Enquirer"?
16 A. I examined contact sheet, as I recall,
17 and noticed that the image that he was talking about
18 extended beyond the edge of the frame itself,
19 indicating that it was a problem with, or a flaw with
20 the film, as opposed to an image being photographed.
21 Q. Did you tell that to the "National
22 Enquirer"?
23 A. Yes, I did.
24 Q. Did they publish the photo anyway?
25 A. Yes, they did.
26 Q. Now, were you contacted with regard to
27 the Bruno Magli photo by the "National Enquirer"?
28 A. Yes, I was.
90
1 Q. Did they ask you if you would analyze it
2 for them?
3 A. That's correct. They did.
4 Q. Did you?
5 A. No.
6 Q. Did they ever call you back after the
7 first time?
8 A. They called me a second time. They never
9 called back after that.
10 MR. LEONARD: May I have just one minute, Your
11 Honor.
12
13 (Pause.)
14
15 MR. LEONARD: I don't have anything else for
16 the purpose of voir dire.
17
18 VOIR DIRE CROSS-EXAMINATION
19 BY MR. GELBLUM:
20 Q. Mr. Groden, you've had no formal training
21 whatsoever in learning how to determine the
22 authenticity of photographs, correct?
23 A. That's correct.
24 Q. Never taught a course in photography?
25 A. Never.
26 Q. Never published anything about
27 photography?
28 A. Techniques of photography?
91
1 Q. Yeah.
2 A. No.
3 Q. Or techniques of photographic alteration?
4 A. No.
5 Q. Not a book, not an article, not anything?
6 A. I mention the technique of photo
7 alteration in a book I wrote.
8 Q. The book's not about photo alteration?
9 A. No.
10 Q. You talk about the Oswald backyard
11 photograph?
12 A. Yes.
13 Q. And you don't belong to any professional
14 organizations?
15 A. No.
16 Q. And you're not certified by any
17 professional organizations?
18 A. No.
19 Q. And you never testified in court or
20 qualified in court as an expert on photography,
21 correct?
22 A. No.
23 Q. Is that correct?
24 A. Yes.
25 Q. And these photographic processing
26 equipment that you repair, that's like commercial
27 photos, like one-hour photo kind of places?
28 A. That's correct, yes.
92
1 Q. You said that you first gained
2 experience -- your first job of photography was this
3 optical house in New York?
4 A. Yes.
5 Q. That was exclusively with motion
6 pictures?
7 A. The first job, yes.
8 Q. Yes.
9 There's no optical effects with motion
10 pictures involved in the analysis of the Bruno Magli
11 picture, is there?
12 A. Only -- only -- the only way it would be
13 connected is the techniques, some of the techniques
14 might be the same.
15 Q. We're not talking about a motion picture
16 film here, are we?
17 A. No.
18 Q. You did no work with still photography at
19 that first job?
20 A. No, that's not correct. I did some work
21 with still photography there, too.
22 Q. Remember having your deposition taken in
23 this case?
24 A. Yes.
25 Q. And we're getting a -- do you remember
26 giving a different answer at that time?
27 MR. LEONARD: Page and line, please.
28 MR. GELBLUM: Page 21, line 10 through 22.
93
1 Q. (BY MR. GELBLUM) (Reading:)
2 That's --
3 Q. (BY MR. GELBLUM) "That," meaning the
4 optical effects of the first job.
5 (Reading:)
6 Q. That's done with motion
7 picture film?
8 A. Yes.
9 Q. Exclusively with motion
10 picture film?
11 A. Yes.
12 Q. Not done with videotape?
13 A. No.
14 Q. Or still photography film?
15 A. You might have a still --
16 specific still photograph, maybe you
17 might want to animate on but you're not.
18 A. That's correct.
19 MR. LEONARD: I move to strike there's no
20 inconsistency.
21 MR. GELBLUM: You plan to testify about the
22 film?
23 THE COURT: Overruled.
24 A. I answered now just exactly as I did
25 then. There were still items involved.
26 Q. (BY MR. GELBLUM) But there's nothing
27 involved in creating a fake still photograph?
28 A. I don't believe that's what you asked me.
94
1 Q. That's what I'm asking you now, sir?
2 A. I did not create still images except
3 possibly mattes for separation or split screens.
4 Q. And you said that you worked with still
5 photography optical effects with 2 by 2 Slides; is
6 that right?
7 A. That's correct.
8 Q. That's over 20 years ago?
9 A. Yes.
10 Q. Okay.
11 And in fact, do you recall testifying
12 about 2 by 2 Slides at your deposition?
13 A. Yes.
14 Q. And page 18, line 24, to page 19, line
15 18 -- you didn't mention at your deposition anything
16 about doing optical effects on still photography at
17 that job, did you?
18 MR. LEONARD: If he could show him the actual
19 questions and answers.
20 MR. GELBLUM: I'll be happy to -- I'll read it
21 to him.
22 Q. (BY MR. GELBLUM) Do you recall
23 testifying at your deposition saying anything about
24 working with 2 by 2 Slides, optical effects and still
25 photography?
26 A. I don't recall that there was a specific
27 question asked in that area. There may have been.
28 Q. Let's read it.
95
1 Starts with your explaining what you did.
2 (Reading:)
3 When I left that field of work,
4 meaning the first job, optical effects
5 with motion pictures, I went into slide
6 duplication, which I worked for the -- a
7 company called 2 by 2 Slides and I
8 worked there for a couple of years.
9 What training did you get there?
10 Well, they already know that
11 basically --
12 I'm asking about training?
13 Oh, well, the boss there had been
14 working in that field for years and he
15 taught me some of his techniques.
16 For duplicating slides?
17 No, duplicating slides,
18 enlarging, things of that nature.
19 Well, what else besides
20 duplicating slides and enlarging?
21 At that job?
22 Yes.
23 That was pretty much it, that's
24 what we did.
25 Do you recall giving that testimony?
26 A. Sounds familiar.
27 Q. Nothing about optical effects and still
28 photography, right?
96
1 A. Well, the technical term optical effects
2 would not apply there.
3 Q. I asked you what you did and you gave
4 those answers?
5 A. Yes, making slide duplicates does involve
6 doing composites in many cases.
7 Q. The House Select Committee, that's the
8 next thing Mr. Leonard asked you about, that was about
9 18 years ago?
10 A. Approximately.
11 Q. And you were not on the expert panel,
12 correct?
13 A. I was not on the photographic panel.
14 Q. It was a panel of photographic experts
15 that you were not on?
16 A. That's correct.
17 Q. You were "a" consultant, not "the"
18 consultant?
19 A. That's correct.
20 Q. You testified for a few days -- I mean --
21 I'm sorry.
22 You worked for a few days here and there
23 over a couple years, right?
24 A. Well, more than just a couple of days. I
25 mean it was over a period of three years, yes.
26 Q. And the testimony you talked about was
27 not about altered photographs, was it, you gave on the
28 first day of the hearings?
97
1 A. I don't recall. It went on for many
2 hours. They may have asked about specific -- they
3 asked questions relating to matters of photo work that
4 needed to be done. This was at the outset of the
5 hearing. And I was not allowed to volunteer specific
6 information; I merely answered their questions.
7 Q. But you were not -- you did not give any
8 testimony about altered photographs at that testimony,
9 did you?
10 A. I don't recall.
11 Q. Okay.
12 Now, the Oswald backyard photograph, you
13 say you were the one who discovered it was fake; is
14 that what you're saying?
15 A. No.
16 Q. A bunch of people looked at it and all
17 agreed it was fake?
18 A. Yes.
19 Q. And that's a black-and-white photograph?
20 A. That's correct.
21 Q. And the picture here that we're talking
22 about today is color?
23 A. That's correct.
24 Q. And some of the opinions you intend to
25 give have to do with color, right?
26 A. That is correct.
27 Q. Okay.
28 And the Zapruder film, that's also
98
1 black-and-white?
2 A. No.
3 Q. It's color?
4 A. Yes.
5 Q. Now, you said you also worked on the
6 Kennedy -- on various photos relating to the
7 assassination for the last 30 years?
8 A. I'm sorry?
9 Q. You've worked on various photos relating
10 to the assassination over the last 30 years?
11 A. That's correct.
12 Q. Other than the House Committee, that's
13 all been on your own time and for your own purposes,
14 correct?
15 A. Not all of it. I did some -- some work
16 for submission to the Rockefeller Commission and the
17 Senate Select Committee on -- on Government. It was a
18 Church Committee, actually.
19 Q. And when was that?
20 A. In the 1970's.
21 Q. And this "National Enquirer" photo you
22 looked at about 14 years ago --
23 A. That's correct.
24 Q. -- did you mention that?
25 And what you said is, you looked at -- as
26 soon as you looked at it, you immediately recognized
27 that it was just a fake -- no, it wasn't a fake, it
28 was a technical problem with the photograph?
99
1 A. I can't say immediately. Upon studying
2 it for a short period of time, I realized it.
3 Q. You didn't have to do any complicated
4 analysis to determine whether it had been altered,
5 correct?
6 A. No.
7 Q. You just saw it and what -- it was what
8 you said?
9 A. Yes.
10 Q. Previously, it was immediately apparent?
11 A. It was apparent, yes.
12 MR. GELBLUM: I have nothing further on voir
13 dire.
14 MR. LEONARD: Your Honor, just a couple.
15
16 VOIR DIRE REDIRECT EXAMINATION
17 BY MR. LEONARD:
18 Q. The analysis of -- of photographic images
19 to determine whether or not they're altered, tell us
20 what that boils down to, in the most basic terms?
21 A. The most basic -- most basic and simplest
22 way to start dealing with it is observation, what
23 you're capable of seeing and detecting with your eye,
24 comparing it to experience.
25 Beyond that, you can use techniques of
26 photograph photogrammetry for measurement to -- well,
27 you would check to find out if there are -- are
28 obvious cut lines or paste lines, or for
100
1 digitalization, you'd worry about whether you could
2 find pixels or things of that nature.
3 There's an endless variety, I would say.
4 But on this most basic level, it's a
5 matter of observation. Sometimes it happens right
6 away; sometimes it takes time. You just simply need
7 to know in that data base, or whatever, if anything
8 strikes you as being odd or not visually correct.
9 Q. And again, throughout your career you
10 have examined thousands of photographs for purposes of
11 determining whether they're authentic, correct?
12 A. Yes.
13 Q. And again, you were employed for some
14 number of years actually creating duplicate and
15 altered negatives, correct?
16 A. That is correct.
17 Q. You were asked about the panel of
18 photographic experts.
19 Was there a proficiency test that was
20 done of the -- of the panel of photographic experts
21 that you participated in?
22 A. Not to my knowledge.
23 Q. Was there a -- was there an occasion when
24 the panel of photographic experts was given some
25 photographs, some of which were altered, some of which
26 weren't, to determine whether or not they could figure
27 out which ones were altered and which ones weren't?
28 A. Yes.
101
1 Q. Okay.
2 Did you participate in that exercise?
3 A. Yes, I did.
4 Q. And were the results graded by other
5 photographic experts?
6 A. Yes.
7 Q. Okay.
8 How did you fare in that test, sir?
9 A. I got 100 percent.
10 Q. Did anyone else on that photographic
11 panel get 100 percent?
12 A. No.
13 MR. LEONARD: I don't have anything else.
14 THE COURT: At this point, Mr. Leonard, I was
15 hopeful that the proceedings will assist the Court and
16 in enlighten the Court about what this witness's
17 expertise has to do with the --
18 MR. LEONARD: Oh, okay.
19 THE COURT: -- examination that you wish to
20 proffer him for, and thus far, I am at a loss to see
21 what expertise you have reference to with regards to a
22 particular examination.
23 MR. LEONARD: What I can do is have him go
24 through in summary fashion what I expect to elicit
25 from him substantively, if that will be helpful. You
26 can compare his experience with the --
27 THE COURT: I'd like -- it would be helpful to
28 have an examination of this witness as to his
102
1 experience or knowledge in that particular area that
2 you are going to be inquiring about in this case.
3 MR. LEONARD: Okay.
4 Q. (BY MR. LEONARD) You have undertaken an
5 analysis of the -- the particular photographic image
6 of Mr. Simpson with the Bruno Magli shoes?
7 A. That is correct.
8 Q. And explain --
9 MR. LEONARD: And, Your Honor, we make this
10 Exhibit 1 for purposes of the hearing.
11 THE COURT: It's already an exhibit, isn't it?
12 MR. P. BAKER: It's 1930.
13
14 (The instrument herein referred to
15 as photograph of Mr. Simpson
16 walking was marked for
17 identification as Plaintiffs'
18 Exhibit No. 1930.)
19
20
21(Exhibit 1930 displayed.)
22
23 MR. LEONARD: Can you pull that back a little
24 bit (indicating to Elmo).
25 Q. (BY MR. LEONARD) Can you -- that's the
26 image in question, correct?
27 A. Yes.
28 Q. Can you explain for the Court in summary
103
1 fashion, what you did to examine the photograph and
2 the surrounding photographs on the contact sheet and
3 negative strip for purposes of determining whether or
4 not you could discern whether this photograph was
5 altered?
6 A. I examined the photograph itself. I
7 examined the original that -- purports to be an
8 original negative. I examined the surrounding frames,
9 two contact sheets specifically, the one that this
10 photograph is contained in and another one. I
11 examined irregularities within the surrounding area on
12 the negative itself, surrounding this particular
13 frame, and made determinations dependent upon my
14 observations of those items.
15 Q. Now, let's just --
16 MR. LEONARD: Would you like to see some of the
17 specific exhibits we prepared, Your Honor, for
18 purposes of illustrating this?
19 THE COURT: Well, I'm trying to understand what
20 his expertise -- what the expertise is with regards to
21 this exhibit.
22 MR. LEONARD: Well, his expertise, Your Honor,
23 he's done this for years, he's examined photographs,
24 he's created duplicate altered photographs for
25 purposes of -- professionally, and he's familiar with
26 the methods that are used to do that.
27 And we can -- I can illustrate that. If
28 you want me to go through his testimony, I will, so
104
1 that he can demonstrate exactly what he's doing.
2 And that might make it easier for the
3 Court to determine whether or not -- the question with
4 regard to his expertise.
5 I don't know how else to do it, Your
6 Honor.
7 This individual has --
8 THE COURT: I presume you know what he's going
9 to testify to?
10 MR. LEONARD: I do.
11 THE COURT: Then you ought to know what the
12 basis of his expertise is on that portion of that
13 testimony.
14 MR. LEONARD: His expertise is that he was in
15 the business of creating altered images. The
16 technology is -- is basically the same. There's some
17 very simple techniques that are used. There are also
18 some very complicated techniques.
19 THE COURT: Where -- it might be helpful to
20 examine him as to what the techniques are and what his
21 experience is with regard to his knowledge of it.
22 Q. (BY MR. LEONARD) Can you describe for
23 the court the general -- in general terms the
24 techniques that are used to create altered
25 photographic images?
26 First of all, let me ask you about motion
27 picture film --
28 THE COURT: I'm not interested in motion
105
1 picture film. I'm interested in --
2 MR. LEONARD: I'm laying this foundation
3 because motion picture film --
4 Q. (BY MR. LEONARD) Describe, just in
5 general terms what a motion picture film is?
6 A. Motion picture film is -- most basic
7 level, is a string or repetitive series of still
8 photographs.
9 Q. Okay.
10 And there are techniques used to create
11 optical effects that involve creating altered images
12 in some of the individual frames -- still frames; is
13 that correct?
14 A. That is correct.
15 Q. Okay.
16 And those techniques -- you utilized
17 those techniques when you worked in optical effects;
18 is that correct?
19 A. That is correct, yes.
20 Q. Okay.
21 Are those techniques, at their base,
22 different from the techniques that are used to dup --
23 to create altered still photographs?
24 A. In many cases the techniques are
25 identical.
26 Q. In some cases they're not?
27 A. That is correct.
28 Q. But when it comes to creating a duplicate
106
1 altered image on a piece of film, okay, the techniques
2 are basically the same as they would be for a still
3 photographic alteration; is that correct?
4 A. That is correct.
5 Q. All right.
6 And you worked in that field, sir?
7 A. Yes.
8 Q. Okay.
9 Now, describe for us in general terms the
10 techniques that are used to create altered still
11 photographic images?
12 A. There are several.
13 I would say the most common would be, as
14 I mentioned before, manual matte insertion, where you
15 create a matte and insert an image photographically.
16 Another technique would be cut and paste,
17 whereby you would physically cut out an item --
18 photographic image and place it on top of another one
19 and rephotograph it.
20 Or you could use an air brush technique,
21 which is very similar to cut and paste, but varies in
22 the fact that you're not just placing one on another
23 but you're retouching it, spraying an additional image
24 to help disguise the cut mark or a difference in grain
25 pattern, things of that nature.
26 Lastly, and relatively new, is
27 digitization, where it's done within the -- an
28 electronic domain as opposed to a photographic or
107
1 mechanical domain. The other techniques that I
2 described are physically altering something that is a
3 photographic image either onto film or on -- on
4 photographic paper. The digitalization of an image is
5 done within a computer, and that varies from the
6 others more than any of the others do against
7 themselves because you're altering the physical image
8 electronically and you can regenerate them into a
9 photographic image after the fact.
10 Q. Okay.
11 Now, throughout the course of your career
12 as a photographer, during the time that you were with
13 the -- working with the Senate House Select Committee
14 and also during the time you were working in optical
15 effects or duplicating negatives, and up to the
16 present time, including your research and analysis and
17 examination of thousands of photographs relating to
18 the Kennedy assassination, have you become familiar
19 with all of these techniques, sir?
20 A. Yes.
21 Q. Okay.
22 Do you -- are you -- do you know and can
23 you testify to the jury with regard to the indicia or
24 the indications of these techniques in a still
25 photograph?
26 A. Yes.
27 Q. Okay.
28 Have you undertaken a thorough review of
108
1 the photographic image in this case and the
2 surrounding images to determine whether or not there
3 are indicia that the photograph has been altered?
4 A. Yes.
5 Q. Okay.
6 Now, one of the most basic elements to
7 altering a photograph is the creation of a duplicate
8 negative; isn't that correct?
9 Let's put it this way --
10 A. If I can --
11 Q. Okay.
12 A. I'm sorry.
13 I was going to say a duplicate might be
14 determined as being an exact copy of the original.
15 What you would do is do a copy negative
16 or an altered negative that would -- could conceivably
17 be referred to as a duplicate. It would not be an
18 original, but it would be -- it would be an altered
19 duplicate.
20 Q. Let me put it to you this way: If you
21 were going to alter a photograph such as this one, and
22 you didn't want anybody to find out, what would you --
23 what's the basic -- one of the first things you'd have
24 to do, sir, if you thought they were going to go back
25 and investigate and look at the original source, that
26 is what purports to be the original negative?
27 A. You would have to create a forgery, you'd
28 have to create something that would purport to be an
109
1 original negative.
2 Q. But it would actually be a duplicate or
3 altered negative?
4 A. That's correct.
5 Q. Are there some very basic indicia that
6 show you that a photograph -- that a negative is
7 actually a duplicate negative and not an original
8 negative?
9 A. There are several, yes.
10 Q. Okay.
11 And can you describe some of those to the
12 Court that you are familiar with by virtue of your
13 experience in duplicating negatives, creating altered
14 negatives, and by virtue of all your experience in
15 analyzing photographs. Just give some of them to the
16 Court.
17 A. Color balance, sharpness, grain
18 structure, registration --
19 Q. Let me stop you there.
20 What do you mean by registration, sir?
21 A. If you were going to try to insert a
22 photograph into another position, you'd need to
23 position -- you'd need to know where it goes, you need
24 to register it, something could fall out of register,
25 something could create a false line. It's difficult
26 to do it perfectly. There are usually some
27 indications of -- of fakery that can be observed.
28 Q. Now, these indications of fakery, sir,
110
1 those are factors or phenomenon that you can -- that
2 you can often readily identify and that are universal
3 in photography? In other words, they're -- when you
4 talk about out of register, you're talking about, for
5 instance, a -- a frame in a line of film that's
6 slightly out of kilter; is that correct?
7 A. That is correct.
8 Q. Okay.
9 And that's a simple concept, right?
10 A. Extremely.
11 Q. You're also talking about, for instance,
12 when you talk about register, with regard to color,
13 you're talking about if it's -- if there is an item
14 that's a certain color, that you don't see echoes of
15 the color where it shouldn't be on the photograph,
16 correct?
17 A. That is correct.
18 Q. Okay.
19 And these are all things that you're
20 familiar with by virtue of your 30 years experience as
21 a photographer, as an analyst, as a researcher, as
22 someone that was involved in optical effects and as
23 one that was involved in the duplication of negatives,
24 isn't that correct, sir?
25 A. That is correct.
26 Q. Is there any doubt in your mind, sir -- I
27 know you're not a professional witness.
28 Is there any doubt in your mind that you
111
1 can sit in that stand and you're qualified to tell the
2 jury the things you're going to tell them; is there
3 any doubt?
4 A. Not the slightest doubt in my mind.
5 MR. LEONARD: I don't have any more questions.
6
7
8 VOIR DIRE RECROSS-EXAMINATION
9 BY MR. GELBLUM:
10 Q. Mr. Groden, the only time in your entire
11 51 years anybody has ever paid you a penny to
12 determine the authenticity of a photograph is 14 years
13 ago with the "National Enquirer" with this phony image
14 of the voodoo ritual?
15 A. No.
16 Q. Isn't that what you said in your
17 deposition, sir?
18 A. No.
19 Q. Okay.
20 What else have you been paid to do?
21 A. I was asked to pay for -- not asked to
22 pay.
23 I was asked to determine other work --
24 tell you what, before I answer that, will you repeat
25 the question, make sure I'm understanding it the way
26 you're asking.
27 Q. Other than this "National Enquirer" 14
28 years ago, when you looked at it, you immediately saw
112
1 a problem, have you ever been paid by anybody to
2 determine the authenticity of a photograph?
3 A. Yes.
4 Q. When?
5 A. About four or five years ago.
6 Q. What was that?
7 A. Someone came to me relating to a -- as I
8 recall, a Korean political party. Photographs were
9 taken, and the claim was being made by this -- this
10 party that spirits were being conjured up for some
11 kind of support. And the photographs were being
12 published or were -- it was part of some kind of a
13 legal situation in Korea, as I understand it, and they
14 wanted me to determine whether or not the photographs
15 had been physically altered in any way.
16 Q. And you looked at that and you saw
17 nothing on the print?
18 A. That's correct.
19 Q. And that's all you did?
20 A. That's all.
21 Q. You never came to court and never gave
22 testimony as an expert?
23 A. That is correct.
24 Q. And that's it, that's the only time
25 you've ever been asked by anybody, for money, to
26 determine the authenticity of the photograph?
27 A. To the best of my knowledge.
28 Q. Do you remember any others?
113
1 A. No.
2 Q. And what you do for a living, sir, is not
3 determine the authenticity of photographs; you write
4 books and produce videos about the Kennedy
5 assassination, right?
6 A. I do that, yes.
7 Q. That's all you do to make a living -- you
8 also repair photo machines?
9 A. Yeah, that's correct.
10 Q. And that's it, right?
11 A. No, I do other things as well.
12 Q. Do you remember being asked at your
13 deposition what you do?
14 A. I'm sorry?
15 Q. Do you remember being asked at your
16 deposition what you do for a living?
17 A. Yes.
18 Q. Remember what you said?
19 A. Yes.
20 MR. LEONARD: Page and line?
21 MR. GELBLUM: Page 14, lines 5 to 12.
22 Q. (BY MR. GELBLUM) Did you say this:
23 (Reading:)
24 Any other work that you do
25 besides writing books about the Kennedy
26 assassination, producing videos about
27 the Kennedy assassination and consulting
28 on films that have footage of the
114
1 Kennedy assassination?
2 A. I do repair work on photo
3 processing machines, I do photo
4 enlarging work, black-and white-photo
5 laboratory work. That's about it.
6 Is that true?
7 A. That's what I said, yes.
8 Q. Okay.
9 And you're not opining -- you talked
10 about digitization for a while with Mr. Leonard.
11 You're are not opining there's any
12 digitization involved here, are you?
13 A. I can't say that.
14 Q. You don't know?
15 A. I can't say that it wasn't done.
16 Q. You don't know what technique was used
17 here, right?
18 A. There's some indications of some
19 techniques being used.
20 Q. You don't know anything about
21 digitization being used?
22 A. No.
23 Q. All right.
24 And Mr. Leonard keeps saying that you
25 worked in the field of creating altered photographic
26 images.
27 When did you do that?
28 You didn't tell me about that at your
115
1 deposition.
2 When did you do that?
3 A. I don't know that you specifically asked.
4 Q. I asked you everything that you did.
5 When did you do that?
6 A. I did that for all the years that I was
7 involved in motion picture optical affects and -- and
8 slide work.
9 Q. Not color stills, right?
10 A. How do you mean -- I'm sorry?
11 Q. You say you did at 2 by 2 Slides?
12 A. Yes.
13 Q. That was about 20 years ago?
14 A. Yes.
15 Q. At your deposition you didn't mention
16 that; you said all you do is duplicate and enlarge,
17 right?
18 A. We duplicate slides, but part of the
19 duplication process requires alteration sometimes.
20 Q. But you didn't mention that at your
21 deposition, did you?
22 A. I don't believe you specifically asked me
23 that.
24 Q. I asked you what you do and you said
25 duplicate, right?
26 A. Yes.
27 Q. Okay.
28 MR. GELBLUM: Your Honor, I don't have anything
116
1 further.
2 THE COURT: Okay.
3 You may argue.
4 MR. LEONARD: Your Honor, I think that the
5 witness has demonstrated -- look, he's not an
6 academic, not a professional witness, but I believe
7 the witness has demonstrated that he has sufficient
8 knowledge and experience in this field, particularly
9 in recognizing a duplicate altered photographic image,
10 which is what he's doing here, to be able to testify
11 to this jury.
12 Mr. Gelblum obviously has the right to
13 cross-examine him on his -- on the extent of his
14 qualifications, but I would suggest that that goes to
15 the weight of his testimony as opposed to whether or
16 not he's actually qualified.
17 And I think that, again, we have
18 demonstrated by virtue of his practical experience, by
19 virtue of the experience he's had with the committee,
20 also on his own -- I mean when I -- I guess what I
21 find a little disturbing is that this gentleman is --
22 does -- well, I'm not trying to predict Your Honor's
23 problem or any kind of a ruling but --
24 THE COURT: I don't have a problem.
25 MR. LEONARD: To the extent Your Honor might
26 have a concern that part of the experience that he has
27 is when he was doing his own research, I don't know
28 why that shouldn't be taken into account, and so I
117
1 would suggest that he has absolute sufficient
2 experience and knowledge in this field to be able to
3 testify to this jury.
4 Again, if Mr. Gelblum chooses to
5 cross-examine him on his qualifications, that would be
6 to the weight.
7 That's all going to be laid out for the
8 jury.
9 MR. GELBLUM: Your Honor, the man clearly isn't
10 qualified to do this -- to testify on this score.
11 Under Evidence Code Section 720(a), he
12 has to show if they were knowledge, skill, training,
13 education or training to qualify him as an expert.
14 He admitted he has no education and no
15 training whatsoever in this field; none.
16 All he's done 20 years ago -- if you
17 look -- he worked 14 years ago, worked for the
18 "National Enquirer," saw some haze five years ago,
19 looked at something for somebody in Korea, saw fog on
20 the picture. He's never been paid other than those
21 two times to determine authenticity.
22 He's never qualified as an expert because
23 he's not an expert.
24 His work is in the area of the Kennedy
25 assassination. He knows a lot about the film footage
26 and the photography, the still photos. That
27 doesn't -- with regard to -- with respect to the
28 Kennedy assassination, simply that he sits around his
118
1 house, looks at photos and determines whether they're
2 fake, and publishes books saying he thinks they're
3 fake.
4 That doesn't qualify him as an expert.
5 What qualifies him is training,
6 education, experience.
7 And I submit to you that the indicia of
8 experience that's relevant is somebody else
9 recognizing he's an expert and using him for that.
10 He just sits around, literally, and
11 decides whether he thinks a picture is a fake or not,
12 discusses it with other people in the assassination
13 research community and they have their quarrels, and
14 publishes whatever he wants to publish. Doesn't make
15 an expert.
16 It would be misleading to the jury to
17 allow this man with his feeble qualifications to get
18 up and talk about this picture being a fake.
19 THE COURT: I see Mr. Petrocelli coiled at your
20 elbow.
21 MR. GELBLUM: May I have a moment, Your Honor.
22 THE COURT: Yes.
23
24(Pause for counsel to converse
25sotto voce.)
26
27 MR. PETROCELLI: Submit, Your Honor.
28 MR. GELBLUM: Submit.
119
1 THE COURT: It would appear to me that this
2 witness has done a little bit more than what you
3 describe.
4 He's indicated that he's done work in a
5 field that would involve alterations or work with
6 photographs, negatives. He states he's age 51, he
7 states he commenced working in the field of
8 photography in 1969.
9 Whether his experience is such, and his
10 testimony is such that his testimony will be credible
11 or not will certainly be subjected to your vigorous
12 cross-examination.
13 But for the purposes of establishing a
14 basis on which to allow a witness to testify as an
15 expert does not require formal training, does not
16 require a degree and does not require prior experience
17 as an expert witness. It simply requires some degree
18 of knowledge or some degree of training, formal or
19 otherwise, that would enable him to testify beyond
20 that which would be allowed as a lay witness.
21 I think it would be fair to characterize
22 this witness as something more than a lay witness.
23 So the Court will allow him to offer that
24 evidence.
25 MR. LEONARD: Thank you.
26 Can we start up at 1:30, Your Honor?
27 THE COURT: All right.
28 MR. GELBLUM: Before we leave --
120
1 THE COURT: Yes.
2 MR. GELBLUM: The witness apparently has
3 created some additional material since his deposition
4 that they intend to use. And I don't think that's
5 appropriate.
6 MR. LEONARD: It's diagrams.
7 MR. GELBLUM: It's slides.
8 MR. LEONARD: Charts.
9 MR. GELBLUM: They're not charts.
10 MR. LEONARD: They're diagrams that we were all
11 working with for purposes of illustration.
12 MR. GELBLUM: As the man says, he knows how to
13 fake slides.
14 THE COURT: Excuse me. That's not appropriate.
15 MR. GELBLUM: Well, Your Honor --.
16 MR. LEONARD: He's seen it. I've shown it --
17 MR. GELBLUM: I can't tell from looking at
18 them.
19 MR. PETROCELLI: I want to remind the Court,
20 they took this position rigorously with regard to our
21 experts, anything they did after their deposition, and
22 the Court would not let us use it or rely on it.
23 MR. LEONARD: These are audio visual aids.
24 There's nothing new substantively. It's the same
25 photographs.
26 THE COURT: Are we going to have another 402
27 motion?
28 MR. GELBLUM: Can I find out how these slides
121
1 were created?
2 THE COURT: Why don't you ask Mr. Leonard
3 whether he can -- he can inquire of that.
4 MR. LEONARD: Sure.
5 MR. GELBLUM: Thank you, Your Honor.
6 THE COURT: You want to do it now?
7 MR. GELBLUM: Thought you were about to leave.
8 MR. LEONARD: Why doesn't he talk to him at
9 lunch time?
10 THE COURT: All right, talk to him with
11 Mr. Leonard.
12 MR. LEONARD: I don't even have to be here.
13
14(At 12 P.M. a recess was taken
15until 1:30 P.M. of the same day.)
16
17
18
19
20
21
22
23
24
25
26
27
28
122
1 SANTA MONICA, CALIFORNIA; WEDNESDAY, DECEMBER 18, 1996
2 1:45 P.M.
3 DEPARTMENT NO. WEQHON. HIROSHI FUJISAKI, JUDGE
4 APPEARANCES: (AS HERETOFORE NOTED.)
5 (REGINA D. CHAVEZ, OFFICIAL REPORTER)
6
7 (The jurors resumed their
8 respective seats.)
9
10 THE COURT: You may proceed.
11 MR. LEONARD: Thank you, Your Honor.
12
13 (The following proceedings were
14 held in open court, in the
15 presence of the jury.)
16
17 ROBERT GRODEN,
18 the witness on the stand at the time of the luncheon
19 recess, having been previously duly sworn, was
20 examined and testified further as follows:
21
22 DIRECT EXAMINATION (CONTINUED)
23 BY MR. LEONARD:
24 Q. Good afternoon, Mr. Groden.
25 A. Good afternoon.
26 Q. We left off, we had just very briefly
27 touched upon your experience with photography and
28 particularly, creation of altered photographic images.
123
1 But before we get into a little more
2 detail about your background, I'd like to show you a
3 photograph and ask you if that's the photograph that
4 you focused your analysis on.
5 MR. P. BAKER: Exhibit 1930.
6
7 (Exhibit No. 1930 displayed on the
8 Elmo screen.)
9
10 A. Yes, it is.
11 MR. LEONARD: You can take that off.
12(Indicating to Elmo screen.)
13 Q. (BY MR. LEONARD) When did you first
14 become involved in any way in photography, sir?
15 MR. GELBLUM: Objection. Vague.
16 THE COURT: Overruled.
17 A. Around the age of 10 or 12.
18 Q. (BY MR. LEONARD) And describe that for
19 us, how did you become involved in photography?
20 A. I found the process and the concept of
21 photography, the creativity of it, extremely
22 interesting, the mechanics. I pursued it initially as
23 a hobby.
24 Q. Did you, throughout your childhood and
25 teen years and into your early adulthood, continue to
26 be involved in photography?
27 A. Yes.
28 Q. Can you describe your involvement, at
124
1 least in general terms, for us?
2 A. Taking photographs, black-and-white
3 processing, and printing, things of that nature.
4 Q. Now, at some point did you become
5 employed in the photographic industry?
6 A. Yes.
7 Q. And when was that?
8 A. Around 1969.
9 Q. And what did you do at -- what was your
10 employment at that time?
11 A. I was hired and went to work in a photo
12 optics house in New York as a photo optical
13 technician.
14 I created film elements through the use
15 of an Oxberry optical printer, created special
16 effects, inserts, things of that nature.
17 Q. Okay. Let me stop you right there.
18 First of all -- by the way, do you have a
19 college degree?
20 A. No.
21 Q. Are you a professional witness?
22 A. No.
23 Q. Let me stop you right there.
24 You've used some terminology that I'd
25 like you to explain. You talked about optical effects
26 and so forth.
27 Would you, first of all, just explain to
28 us what optical effects are.
125
1 A. Optical effects are any one or variety of
2 a number of processes, whereby one would take an
3 original film and element, and convert it to another,
4 either positive to negative or negative to positive,
5 doing dissolves, fades, zooms, inserts of one element
6 into another, adding titling, things of that nature.
7 Q. Now, you were involved in that type of
8 work beginning in 1969 in the motion-picture field; is
9 that right?
10 A. That's correct.
11 Q. After that, did you continue to work to
12 some extent with optical effects in other areas of
13 photography?
14 A. Yes. I -- I worked for a slide
15 duplication house, doing special effects, adding
16 titling, product inserts, things of that nature, in
17 slide form, which is still form.
18 Q. Now, the type of special effects that
19 we've been talking about, or optical effects with
20 regard to both motion-picture film and still
21 photography.
22 In their basic elements, they are pretty
23 much the same?
24 In other words, the mechanisms that are
25 used with regard to the motion -- motion-picture film
26 and still photography, are they the same in their
27 basic elements?
28 A. In most cases, yes.
126
1 In the instance where you would be
2 superimposing one image inside the other, you would
3 use the same technique; except in motion pictures,
4 you're doing frame after frame, after frame, as
5 opposed to just a single type.
6 Q. Why don't, just so it's a little bit
7 clear of the type of thing you're talking about, why
8 don't you give us an illustration, first of all, with
9 motion-picture film.
10 Can you given us an illustration of what
11 you're talking about, the type of effect?
12 MR. GELBLUM: Objection. Relevance, Your
13 Honor.
14 THE COURT: Overruled.
15 A. There is a vast variety, but as a
16 for-instance, I would say if you had a TV commercial
17 and you have a background, say a sunset or a -- a
18 desert or a swimming pool or something of that nature,
19 and you wanted to insert a product shot, on
20 motion-picture film, you could have it come in from
21 one side or -- or start very small and get larger. We
22 see it on TV every day.
23 It's an involved process. But the main
24 difference between doing it on film for motion
25 pictures and doing it as a still, is the motion
26 itself, the movement.
27 The technique of doing it for a still
28 photograph is basically the same, but there's no
127
1 motion involved.
2 Q. Okay. We're going to -- we're going to
3 get back to some of the details of these methods that
4 you're talking about. But I want to continue on a
5 little bit with your background.
6 Did you continue after your employment in
7 still -- doing duplication and still photography --
8 did you continue on doing that type of work on your
9 own, working for yourself?
10 A. Yes.
11 Q. Okay.
12 Can you describe that, the type of work
13 you did, under what circumstances, and provide us with
14 some illustration and some of the clients that you
15 work for?
16 A. Well, to give an idea, I work -- one of
17 my clients was Glamour Magazine in New York. If they
18 had four or five individual photographs of different
19 models wearing a different dress, or something of that
20 nature, and they wanted to combine them all on a
21 single slide, they'd send it to me, and I would do an
22 insert effect, whereby I'd photograph each of the
23 elements separately onto a single piece of film, going
24 back, repositioning, registering, things of that
25 nature, and creating a composite, in effect.
26 Q. So?
27 A. Another -- another possible thing that
28 we -- say, for a client like the Quilty Group --
128
1 THE COURT REPORTER: Excuse me, can you spell
2 Quilty?
3 A. Q-u-i-l-t-y.
4 If they had a client who had a product
5 and they wanted to show the product against a
6 particular background for a particular mood, a forest,
7 or a lake, or something of that nature, what we would
8 do is, we would create a series of mattes.
9 Well, let me try to explain that.
10 The final position of where you want your
11 product to be, whether it's straight up and down or at
12 an angle, probably on one side of the screen with
13 maybe some text on the other side, but with a specific
14 background.
15 In the background, each of these things
16 is called an element. And each of these elements has
17 to be positioned and dealt with in its own way.
18 Q. Now, let me stop you right there. I
19 don't want you to get into a detailed explanation at
20 this point.
21 But is what you're saying, that you, when
22 you were working in the motion-picture field, in the
23 still photography field, creating these, as you say,
24 composite photographs of --
25 Basically, what you're saying is, you
26 were creating fake photographs, correct?
27 In other words, photographs that were --
28 would appear to be portraying something, but actually
129
1 it was not genuine; is that fair to say?
2 MR. GELBLUM: Objection. Leading.
3 THE COURT: Overruled.
4 A. That is correct.
5 Q. (BY MR. LEONARD) Of course, these were
6 legitimate fakes, right? These were for purposes of
7 advertising in the --
8 A. That's correct. No one would look at a
9 final picture like that and assume there was a can of
10 hair spray lying in the middle of the air. It's
11 obvious what it is. It's not meant to deceive
12 anybody.
13 Q. Okay.
14 Now, during the time that you were doing
15 this type of work, did you become familiar with the
16 various methods to accomplish these composite
17 photographs?
18 A. Yes.
19 Q. Okay.
20 And again, we're going to get back into
21 that in some detail today as we move on.
22 At some point, did you become involved as
23 a consultant or analyst for a governmental committee?
24 A. Yes.
25 Q. Okay. And when was that, sir?
26 A. That began in 1976.
27 Q. And what was the committee and what was
28 its function?
130
1 A. It was the House Committee on
2 Assassinations and U.S. House of Representatives.
3 Q. And what was your --
4 First of all, what was the committee
5 investigating?
6 A. There they were investigating
7 the assassinations of president John F. Kennedy and
8 Dr. Martin Luther King, Junior.
9 Q. Now, this wasn't the original Warren
10 Commission?
11 A. No, this was an organization that was
12 created to investigate the workings of the Warren
13 Commission and their results.
14 Q. What role did you have with the
15 committee?
16 What was your function?
17 A. My title, staff photographic consultant.
18 Q. And what did you do?
19 What were -- in general terms, what were
20 you doing for the committee as a staff photographic
21 consultant?
22 A. The duties were several. One was to
23 analyze photographs; one was to identify issues
24 relating to the photographic images in regard to the
25 assassination of the president; one was as a
26 consultant for the photographic panel; as a consultant
27 for the medical panel; answering questions for the
28 congressmen themselves, if they had specific questions
131
1 that related to issues of photography, and as to
2 whether photographs were genuine or not.
3 I had input with the actual photo panel,
4 itself.
5 Q. Okay.
6 How long were you acting as a consultant
7 for the House Select Committee on Assassinations?
8 A. Well, the committee's entire life lasted
9 two years, from the beginning of 1977, to the end of
10 1978.
11 I had actually started working with them
12 before their actual, formal investigation began, by
13 about six months, and stayed with them for another six
14 months after that. So I was with them for about three
15 years.
16 Q. You say "with them." Was this a
17 full-time job?
18 Were you, for instance, in Washington
19 every day for three years?
20 A. No. I was an independent consultant.
21 They called me when they needed me. I would do things
22 by telephone or in person, depending on what they
23 actually needed.
24 Q. In the course of your work as a staff
25 photographic consultant to the House Select Committee
26 on Assassinations, did you have occasion to review
27 many photographs and motion pictures?
28 A. Literally thousands.
132
1 Q. Okay.
2 And you were reviewing them, in some
3 cases, to determine what was -- what they depicted,
4 correct?
5 A. That is correct.
6 Q. And in other cases, were you reviewing
7 them to determine their authenticity?
8 A. That is correct, as well.
9 Q. Now, have you maintained an interest in
10 the -- this issue of the Kennedy assassination?
11 A. Oh, yes.
12 Q. Have you published any works on that?
13 A. Yes.
14 Q. And in the course -- and you continue to
15 maintain an interest in that until today?
16 A. That is correct.
17 Q. Okay.
18 And in the course of your research and
19 your writing on the Kennedy assassination through the
20 years, have you had an opportunity to review and
21 examine hundreds and hundreds and thousands of
22 photographs?
23 A. I would say thousands, yes.
24 Q. Again, for what purpose were you
25 reviewing the photographs?
26 A. In some cases, to determine they're
27 relevance and possible evidentiary value for the
28 investigation itself; in some cases, to determine
133
1 whether they're legitimate or forgeries; in other
2 cases, just simply to determine part of a time line.
3 There are varied reasons for each
4 individual photograph.
5 Q. Now, as a result of your experience as
6 you've described it, your actual work experience and
7 also your work with the committee, and also the
8 independent work you have done over the years, have
9 you come to be knowledgeable about the various methods
10 there are to alter photographs?
11 A. Yes.
12 Q. Have you come to be knowledgeable about
13 the indications or signs in examining the photograph,
14 as to whether or not it has been altered?
15 A. Yes.
16 Q. Do you occasionally consult with entities
17 and individuals with regard to the authenticity of
18 photographs?
19 MR. GELBLUM: Objection. Vague,
20 "occasionally."
21 THE COURT: Overruled.
22 A. Yes.
23 Q. (BY MR. LEONARD) Do you -- we had --
24 MR. LEONARD: Can we put that image back up
25 again, the first photograph. And this is number 1930.
26
27 (Exhibit No. 1930 displayed on the
28 Elmo screen.)
134
1
2 Q. (BY MR. LEONARD) When did you first see
3 that photograph?
4 A. Standing in line at the checkout counter
5 of a grocery store, in the National Enquirer.
6 Q. Now, have you, in the past, been
7 consulted by the National Enquirer to authenticate --
8 attempt to authenticate a photograph?
9 A. Yes.
10 Q. Okay.
11 When was the first time that that
12 happened?
13 A. First time was approximately 14 years
14 ago.
15 Q. And just describe in general terms
16 what -- what you did and what you were asked to do.
17 A. The Enquirer, as they told me, had
18 received a photograph taken by a photographer at what
19 was purported to be some kind of a voodoo ritual. The
20 photographer was trying to tell them that an image, a
21 light image that appeared on the -- on -- on a
22 photograph was a spirit that had been conjured up.
23 And this was a picture of a -- of some paranormal
24 entity.
25 And the Enquirer contacted me and asked
26 me if I would verify its authenticity. They sent
27 me -- as I recall, it was a contact sheet of the
28 actual photograph itself and the frame area around it,
135
1 showing the sprocket holes on the original film.
2 I don't know how many frames there were.
3 I don't remember. But it clearly showed more than the
4 actual frame itself.
5 And I examined it and I noticed that this
6 entity that they're talking about was not only in the
7 photographed area, but beyond -- went beyond, into the
8 photograph area, into the sprocket area, indicating it
9 was an artifact beyond the photograph image.
10 I gave them a report on that, stating
11 that, in fact, my -- in my opinion, it was simply
12 static electricity that had left a visual imprint on
13 the film.
14 Q. And did the National Enquirer print that
15 anyway, sir?
16 A. Yes. Without my explanation.
17 Q. You were contacted by lawyers -- the
18 lawyers for Mr. Simpson to examine this photograph,
19 correct?
20 A. That's correct.
21 Q. Now, prior to that time, had you been
22 contacted by the National Enquirer to examine this
23 photograph?
24 A. That's correct. Yes, we did.
25 Q. Did you examine it for the National
26 Enquirer?
27 A. No.
28 Q. Did they -- did the National Enquirer
136
1 contact you again after their first contact, asking if
2 you would attempt to authenticate the photograph?
3 A. Yes. They called me a second time, and I
4 agreed.
5 Q. Did they call you back after that?
6 A. No.
7 Q. Now, just in general terms, sir, I would
8 like you to describe how a photograph is -- can be
9 altered.
10 I want to start off with -- with the
11 basic processes, when they were begun. And if you can
12 illustrate using a pad how that's done, I'd appreciate
13 it.
14 MR. GELBLUM: Objection. Relevance, unless
15 it's tied to this photograph, Your Honor.
16 MR. LEONARD: We'll tie it up.
17 THE COURT: Okay. Overruled.
18 MR. GELBLUM: He'd asked him for general.
19 MR. LEONARD: I'm starting off with the
20 general.
21 THE COURT: He's entitled to explain to the
22 jury the process by which he does it.
23 Q. (BY MR. LEONARD) If you -- if you can
24 step down to the board. And what I want to direct
25 your attention to first, okay, is -- if you could
26 start off with the basic methods that are used in a
27 particular -- you talked about what a matting method,
28 and you talked about some other methods.
137
1 If you could, illustrate how that's done,
2 with particular emphasis on the reinsertion of the
3 image onto the original negative.
4 A. A matte technique would require,
5 depending -- again each -- each instance is different;
6 it's unique. You would start with an original
7 photograph, something with a tree and a flower or
8 whatever, and then you've got a product, can of hair
9 spray, furniture polish, cookies, doesn't matter. And
10 that's this element here. (Indicating.)
11 It's photographed as what's known as a
12 product shot. You have a positioned photograph taken
13 of whatever that insert item is going to be. And that
14 ends up being the second element.
15 Now, if you have a blue sky here
16 (indicating), that blue sky is going to wash out the
17 product shot, so you have to eliminate that area on
18 the original picture.
19 And the way you do that is, you
20 photograph your product shot and create something that
21 is called a black-core matte, the core being the
22 center area of it. And what you're left with --
23 By the way, you use -- these are very
24 high contrast black-and-white film to do this. This
25 is usually something of the nature called Kodalith.
26 And Kodalith is a piece of high contrast
27 black-and-white film, which eliminates all the gray
28 scale. It's only black and white, nothing in between.
138
1 Q. The product shot may have individual
2 things that would turn out as gray. What you would do
3 is, take a brush and you would manually brush out the
4 area completely, so this is what you've got, a piece
5 of solid black against clear.
6 Now, all of this is done in pin register.
7 In other words, take a piece of glass or some kind of
8 a negative carrier, and you insert two very fine,
9 exacting pins. You stamp the all elements of the
10 film, so they all fall into register; that is, they
11 all fall into the same place.
12 Once you've created your --
13 Q. Let me stop you right there.
14 A. Yes.
15 Q. When you say they fall into register, and
16 all fall into the same place, can you be a little more
17 specific about that?
18 A. It's a matter of positioning. If you
19 don't have exact register, your -- your shot will fall
20 slightly off center, and either you'll end up with a
21 clear or lighter line on one side, or a black, dense
22 line on the other.
23 Everything has to fall exactly into the
24 same place; otherwise, it's useless and easily
25 detectable.
26 Q. So, in other words, if -- if in the case
27 of a product shot, you have -- you have a can that is
28 superimposed over a blue sky -- if it's not in
139
1 register, somebody looking at the photograph could see
2 the effect wouldn't be complete; you could see some
3 space. You could see a site, the fact that the can
4 was out of kilter with the background, or something
5 like that. Is that what you're saying?
6 A. That is correct.
7 Q. Okay.
8 A. The next step in this process would be to
9 make what is known as a clear-core matte.
10 The way that's done is in a darkroom,
11 where there's no light, or if you use something called
12 orthochromatic film, which is not red sensitive, where
13 you can use a safety light, which you would do in
14 black-and-white processes a lot.
15 You take this, which again is pin
16 registered, and put on a piece of unexposed film,
17 which is the same type black-and-white Kodalith, and
18 you expose it to light, with the black-core mattes
19 falling between the light source and the new piece of
20 film.
21 And what you're left with is an exact
22 negative of this, which is called a clear-core matte.
23 So everything around that will be black.
24 You have your clear core.
25 Now, we're up to the last step of the --
26 of the creation of the composite right now.
27 Q. When you say "composite," that's another
28 word for "fake," if you want to use that term, or
140
1 altered photograph, right?
2 A. Absolutely. Correct.
3 Q. Okay.
4 A. What you would do is, you would sandwich
5 the pin-registered original with the black-core matte
6 and project that down onto a final piece of paper or
7 film, whatever carrier for the image that you want.
8 Once you have done that, without ever
9 moving this, you go back and you sandwich the product
10 shot and the clear-core matte together, and you then
11 project that down in exactly the same spot on the
12 final carrier for the image, be it film or paper.
13 And what you're left with then, down at
14 the bottom, is a composite image of your tree, your
15 flower, your product shot. And you can also burn in,
16 which is again another technique like this, where
17 you've got, say, white type. You would project that
18 down from another piece of Kodalith, and have that fit
19 whatever you want your product copy to be. And it all
20 falls in and makes a composite image.
21 This has been done in advertising for
22 many, many decades. It's a standard way of doing
23 this.
24 Q. Now, what technique -- what is that
25 technique called that you just described?
26 A. Well, it would be photo compositing or
27 matte inserting.
28 Q. Okay.
141
1 And there are there other subtechniques,
2 or additional techniques that are sometimes used to
3 make the composite photograph?
4 A. Yes, there are several.
5 One that's been used, again, for many,
6 many decades is basically a cut-and-paste situation.
7 You start with your background photograph, and all you
8 do is, you take your product shot and have an artist
9 very carefully take an X-acto knife or a very sharp
10 razor blade, something of that nature, and you cut it
11 out so it physically fits, and you physically paste it
12 on. That's very simple. That's the way it's done.
13 You can also insert an area of text, as
14 well.
15 Q. Now, I've heard the term "air brush," and
16 I usually hear that in terms of fashion photography,
17 where some rather vain celebrities -- but could you
18 describe that for us?
19 What is air brushing, and how is that
20 used, if at all, in creating these alternate
21 photographic -- altered photographic images?
22 A. Well, if you had two pieces of elements
23 that did not quite aesthetically match each other, an
24 arm that didn't quite hit or something of that nature,
25 or a finger with dirty fingernails, something of that
26 nature, and you wanted to air-brush it out, you wanted
27 to get rid of it, you take a small, precise spray
28 mechanism, and you spray over the area that -- that is
142
1 offending to the vision or the eye,
2 and eliminate it.
3 If somebody had a scar, let's say, and
4 they wanted to eliminate the scar, you would -- what
5 you would do is, match the color background of the
6 skin or -- however you do it -- either there's a tear
7 in the jacket or a shirt, and you just air-brush it
8 out. You just simply cover it up.
9 The advantage to air-brushing is that it
10 gives you a tapered edge, as opposed to a very sharply
11 cut one.
12 Q. What you said, it's -- is it like a small
13 can of -- a really small can of spray paint? Is that
14 what it is?
15 A. Yes.
16 Normally, it would be a jar. They
17 usually use glass jars, which attach to a little
18 sprayer. It's the reverse of an air compressor; it
19 blows air, instead of sucking it in.
20 Q. So it's clear, what does the air brush
21 actually -- is it spraying fluid? Is it moving fluid
22 that's already there?
23 A. No, it's spraying, it's adding.
24 Q. So -- and if you're trying to do a really
25 good job of creating a -- a believable composite, I
26 take it that you -- that you try to, for instance,
27 make sure the elements are all in register, right?
28 A. That's correct.
143
1 Q. And you try to make sure that if there
2 isn't anything that's not quite in register, that you
3 air-brush it so that it becomes -- the fact that it's
4 out of registration, is masked, right?
5 A. You can do that or just do it over again.
6 Q. Okay.
7 MR. LEONARD: Now, you can retake the stand at
8 this point.
9
10(The witness complies.)
11
12 Q. (BY MR. LEONARD) If you don't do a
13 perfect job, are there often indicia or indicators of
14 this type of manipulation that are apparent on the
15 original -- on what -- on the photograph of the
16 negative, are they -- are there?
17 A. If it's not done right, yes. It's easily
18 detectable.
19 Q. Okay.
20 Let me direct your attention specifically
21 to this air-brushing method.
22 What would be -- what would you look for,
23 in general terms, to determine whether there has been
24 any air-brushing-type manipulation to a photographic
25 image?
26 A. The image, instead of being continuous
27 grain -- or, for instance if you look at a hand, it's
28 not just one solid color; they're subtle. There's
144
1 changes; there's shadows.
2 Normally, in an air-brushing situation,
3 you're dealing with a flat background. If you try to
4 use it in something where there's a great deal of
5 detail, the detail will simply be there.
6 If you examine what purports to be an
7 original photograph, using that technique, what you
8 would detect is a plain background without the detail,
9 or an irregular, unnatural edge.
10 Q. And with that regard to the registration
11 or proper positioning of the various elements in a
12 photograph, what would you look for to determine
13 whether that exists?
14 In other words, when you're looking at a
15 photograph and you want to look for
16 out-of-registration elements, what do look for?
17 A. Well, you would inspect, again, depending
18 on the method used and the type of indicator that
19 might be there. You would end up with examining the
20 edges from where one element would come in contact
21 with another element.
22 For instance if we were to use a matte
23 insert technique, if the matte were off slightly from
24 the sizing or were off -- or the positioning were off,
25 even by a fraction of a millimeter, you would end up
26 with an odd-colored edge, meaning that didn't belong,
27 something that would be -- it would look somewhat like
28 a halo, something of that nature. Either that, or it
145
1 would be a dark line.
2 In other words, if matte were too small,
3 as opposed to being too large, you'd end up with an
4 irregular density.
5 Q. Now, is there another wholly different
6 type of method used to utilize to create a composite
7 or alterated -- excuse me -- altered photographic
8 images, that involves computer technology?
9 A. Yes. There is --
10 The technique of digitization has been
11 refined again and again and again and again, through
12 the last decade or so. And it is totally different
13 than everything else we've got here.
14 What we have here are mechanical or
15 photographic or art-type techniques.
16 In a computer, in what they call the
17 digital domain, what you're doing is, you are not
18 manipulating a photographic or physical entity; what
19 you're doing is, you're manipulating elements or
20 picture elements that are known as pixels within the
21 original picture.
22 And --
23 Q. You know, would it be helpful -- sorry to
24 interrupt you -- would it be helpful if you go down
25 and actually draw what you're talking about with
26 pixels and so forth?
27 MR. GELBLUM: Your Honor, I object without
28 tying it up. I'd like an offer of proof --
146
1 MR. LEONARD: Sure.
2 MR. GELBLUM: -- at side bar.
3
4 (The following proceedings were
5 held at the bench, with the
6 reporter.)
7
8 THE COURT: What's your offer of proof on
9 digitizing?
10 MR. LEONARD: I want to -- what I want to
11 demonstrate is that, if you use the state-of-the-art
12 digital equipment and you do the proper cover-up, if
13 you will, techniques, you -- it's very difficult to
14 discern.
15 THE COURT: Is that his opinion that's what was
16 done in this case?
17 MR. LEONARD: He doesn't know.
18 No -- look --
19 MR. GELBLUM: I asked him in his deposition.
20 He didn't mention that.
21 THE COURT: Wait a minute.
22 MR. LEONARD: Wait a minute. Okay.
23 You can combine all of these techniques
24 if you want to. For instance, if you -- if you
25 digitally manipulate a photograph and you don't see
26 something, like you -- like you can air-brush it or
27 use some other technique, the point is, it's extremely
28 difficult to -- to discern digital manipulation.
147
1 That's all I'm going to elicit from him. That -- that
2 these techniques can be combined. These --
3 THE COURT: Let me ask you.
4 MR. LEONARD: No here --
5 THE COURT: May I ask you a question --
6 MR. LEONARD: Yes, of course.
7 THE COURT: -- please.
8 What is it exactly that this witness is
9 going to testify to with regards to --
10 MR. LEONARD: He is going to say --
11 THE COURT: -- on 1930?
12 MR. LEONARD: I'm sorry.
13 THE COURT: Is it 1930.
14 MR. LEONARD: He's going to say there are
15 several indicators of it, that the picture has been
16 manipulated. There's a whole list of them. For
17 instance --
18 THE COURT: He's not going to be able to
19 testify as to how it was done?
20 MR. LEONARD: No. And he can --
21 THE COURT: Then I'll -- excuse me. You know,
22 if you let me talk, we'll get through this a lot
23 faster.
24 He is going to say there's something
25 wrong with the picture; is that right?
26 MR. LEONARD: Um-hum.
27 THE COURT: All of those techniques are various
28 techniques that he knows of, and can alter the
148
1 picture, but he doesn't know which one affected it?
2 MR. LEONARD: He sees indications of
3 air-brushing. He also sees the fact that the -- that
4 the -- that the -- as he's described here, that
5 there's some indication that elements are out of
6 register which are an indicator of matte technique.
7 THE COURT: Is he going to testify that there
8 are some elements of digitizing?
9 MR. LEONARD: No. He's going to say that you
10 can't -- you can't tell whether it's been digitized,
11 if it's -- it's one point that -- that it's a very
12 sophisticated technique. All right? And can I --
13 I'll explain it to you.
14 He's going to say it's a very
15 sophisticated technique, and that you can -- you can
16 rephotograph the digitally created image with, for
17 instance, with a type of film that has a rather large
18 grain, and it masks the pixelization. The way you can
19 determine whether a photograph has been digitally
20 manipulated is because it has a very distinctive --
21 I'll call it grain structure. It's really pixels.
22 THE COURT: Is he going to testify that that
23 exists, too?
24 MR. LEONARD: What?
25 THE COURT: Is he testifying that that exists
26 in this photograph?
27 MR. LEONARD: You can't tell whether it exists.
28 THE COURT: Then I'll sustain the objection as
149
1 to that aspect.
2 MR. LEONARD: Can I -- one more. Can I make
3 one more point?
4 THE COURT: Sure.
5 MR. LEONARD: One more point.
6 There's evidence that this -- that the
7 photograph -- that what was represented to us as being
8 an original negative is a duplicate negative, if --
9 that it's out of register. There's a couple different
10 points.
11 There's no legitimate reason for what was
12 represented to us in the original negative to be a
13 duplicate negative. That is, there's very strong
14 circumstantial evidence that it's been -- it's been
15 tampered with.
16 And my point is that, if there -- if
17 there were more than one method -- for instance, if
18 there was masking, if there was air-brushing, and
19 underneath all of that, there had been an original
20 digital manipulation, if it's done right, you wouldn't
21 be able to see the original digital manipulation.
22 It's like, we've got a murder case going
23 here with circumstantial evidence. There's
24 circumstantial evidence that the photograph has been
25 altered in two of these ways.
26 And the photograph also went -- went to
27 Paris or London and back on a Concord.
28 MR. BAKER: London.
150
1 MR. LEONARD: That's pretty unusual. That came
2 out in Scull's deposition. There's some -- there's a
3 lot -- there's a lot of circumstances surrounding the
4 photograph that are unusual.
5 The guy claims he lost his camera and his
6 camera was rebought --
7 THE COURT: Just stay --
8 MR. LEONARD: All I'm trying to argue is that
9 there are circumstantial indicators that this --
10 beyond the actual looking at the photograph or where
11 it lines up with the others on the contact sheet,
12 which indicated -- indicate that it was duplicated, or
13 at least there's a suspicious break in the chain of
14 custody.
15 THE COURT: See if I understand your argument.
16 Your argument is that his testimony is
17 going -- and some other evidence, or some evidence is
18 going to show that these are duplicate negatives.
19 MR. LEONARD: This is a duplicate negative.
20 THE COURT: And that -- that is an element that
21 you contend is supportive of an opinion that it's been
22 tampered with?
23 MR. LEONARD: Yeah. That's a reason, yes.
24 THE COURT: If you just let me talk, we'd get
25 through this real fast.
26 And that you'd like to ask him about the
27 digitizing, because that is one of the methods that
28 can be used to alter it.
151
1 But this witness could not establish
2 that, in fact, was the one that was used, only that it
3 can -- that could have been used, and he would not be
4 able to know.
5 MR. LEONARD: No. But it's extremely
6 difficult, if not impossible, as their expert has
7 admitted, if it's done right, in the proper --
8 THE COURT: So your main contention is that, if
9 you feel there's sufficient evidence in which this
10 witness can say that there are elements to support an
11 argument that it was altered, because there was a
12 duplicate negative, and that part of the altering
13 could be by various methods, including digitizing?
14 MR. LEONARD: Exactly.
15 THE COURT: But he can't say that is the case
16 here or not?
17 MR. LEONARD: He can't with regard to the --
18 THE COURT: Okay. Overruled.
19 MR. GELBLUM: Your Honor, may I be heard?
20 THE COURT: No. I think --
21
22 (The following proceedings were
23 held in open court, in the
24 presence of the jury.)
25
26 Q. (BY MR. LEONARD) If you would, step down
27 there.
28 When we had the time out there, we were
152
1 talking about digital manipulation, and you used
2 pixelization and so forth.
3 First of all, can you just illustrate for
4 us, sort of basic elements of a digitalized
5 photograph?
6 A. It's extremely simple.
7 If these lines weren't so light, it would
8 be perfect to explain it.
9 But in its most simple form, the entire
10 screen of a digitized picture contains a series of
11 items known as pixels, or picture elements.
12 Picture elements are exactly rectangular,
13 be they square or elongated, into a rectangular form.
14 And each one of those, although they're considerably
15 smaller than this, represents a single pixel or
16 picture element.
17 The total digital picture is made up
18 exclusively of digital elements known as pixels.
19 Each one of these is assigned a value in
20 color and density, color being, of course, the -- it's
21 very obvious what it is; density being from something
22 known as demin which is very thin or light or clear or
23 white, to demax, which is dark gray, charcoal black,
24 very dense.
25 Each of these elements becomes part of
26 the overall picture.
27 The number of pixels determines the
28 resolution of the overall picture. A lot of home
153
1 computers will use 300 to 600, maybe as many as 800
2 dots or pixels per inch as its resolution.
3 Professional machines will go as high as
4 3,000 per inch or greater, so you get a far more
5 photographic field to the end result.
6 So for those of you who may have home
7 computers, if you deal with -- with programs like
8 Photo Shop or things of that nature, you know that
9 when you look at the picture, it seems very choppy;
10 they have things called jaggies.
11 Jaggies is, if you have a diagonal line
12 that interferes and goes through the middle of a
13 pixel, the computer has to arbitrarily decide whether
14 it goes to this side or this side of it. And instead
15 of getting a straight line, you end up with a slightly
16 lightning shape or jagged line.
17 In ultra-high resolution situations of
18 3,000 lines or pixels per inch or better, you don't
19 get the jaggies for two reasons: Number one, programs
20 of that nature and sophistication, like computers,
21 have programs that eliminate the jaggies and tend to
22 smooth them out.
23 The other situation, which is the
24 obvious one thing I was trying to get to, is when you
25 have many other things, they become less apparent to
26 the eye, and you need a microscope to detect them.
27 Q. Now, if you created a digitally
28 manipulated photograph, and you wanted to hide that
154
1 fact for whatever reason, is there a method you've
2 just told us that it can -- it's -- you can discern
3 these distinctive geometric pixel-like -- or pixels,
4 rather, by -- under a microscope, correct?
5 A. In most cases, yes.
6 Q. If you were going to digitally manipulate
7 a photograph, and you wanted to hide that fact so that
8 someone looking at the -- what purports to be the
9 original negative, after the fact, can't tell that you
10 digitally manipulated it, what could you do?
11 A. There are various steps you could do, one
12 of which would be to throw it slightly out of focus,
13 so that the edges would blur. There would no longer
14 be sharp edges on the pixels.
15 Of course, if you'd use the maximum
16 resolution, you could get it in the first place.
17 Q. Well, by that, you mean you'd use that,
18 what you describe as high tech, 3,000
19 pixels-per-inch-type machinery?
20 A. That's correct.
21 And then you'd throw it slightly out of
22 focus, or you would use what's known as a dithering
23 effect.
24 A dithering effect is part of a program
25 that is included in things like Photo Shop, where they
26 tend to average out edges or elements of each pixel,
27 so it would disappear or be much less apparent.
28 Another way of dealing with it would be
155
1 to create a high-resolution print and then
2 rephotograph it on a piece of film, like 400 ASA film,
3 or something that's very grainy, and if the grain is
4 larger than the pixels, they'll disappear, they'll be
5 covered up.
6 Q. Just -- just go over that -- that point
7 again. Let me make sure I understand.
8 You would create a high-resolution
9 digital print using the more sophisticated machinery,
10 so that you would have 3,000 pixels per inch, let's
11 say.
12 MR. GELBLUM: Objection. Asked and answered.
13 No reason to go over it again.
14 THE COURT: Overruled.
15 Q. (BY MR. LEONARD) And then at that point,
16 you would then take another photograph of that
17 digitally created image; is that right?
18 A. That's correct.
19 Q. And you would take the photograph with
20 a -- what you said was a grainy film.
21 What do you mean by that?
22 A. Grain is an element of photographic film.
23 The slower the film -- and this is a general rule --
24 the slower the film, 50 ASA, 32 ASA, 75, 100. Slower
25 films have finer grain, much finer grain. What you're
26 left with is -- let me demonstrate.
27 This arbitrary shape here is a piece of
28 photographic grain, let's say. What you've got on
156
1 film is a carrier, which is an acetate type of
2 situation, variety of plastic of sorts. And what
3 you've got is a coating on what's known as the
4 emulsion side. And the emulsion side of the film has
5 just a whole bunch like this.
6 Now, the slower the film, the finer the
7 grain. In other words, it's less apparent. If you
8 look at an 8 by 10 or 11 by 14 blow-up of a fine-grain
9 print, it's very hard to see the grain.
10 But if you use a fast film, as you
11 would -- say a sporting event, and you need to freeze
12 the action, you need to be able to use a higher
13 shutter speed, you use a faster film.
14 Well, the down side of the faster film
15 is, it has much larger grain. And when you blow it
16 up, it appears very grainy. It's as if you're looking
17 through a screen or a mask.
18 Q. Well, explain the relationship between
19 the -- the larger grain and the pixels and to the
20 extent, if any, that -- that might mask the underlying
21 pixels.
22 A. Well, the nature of the grain itself,
23 outside of being larger, also has a granular element
24 to it. And if you are -- if you're showing a granular
25 element over an already slightly blurred pixel area,
26 it will mask it completely; you won't be able to
27 detect it or see it.
28 Another situation is, if you were to
157
1 print it nonphotographically, say in a magazine, using
2 lithographing dots, the lithographing dots would be
3 larger than the pixels, and they would totally mask
4 it, as well.
5 MR. LEONARD: Now, you can retake your seat.
6
7(Witness complies.)
8
9 MR. LEONARD: Is this a good time to break?
10 THE COURT: We started at a quarter to.
11 MR. LEONARD: Okay.
12 Q. (BY MR. LEONARD) Now, when you're
13 looking for occasions that a photograph is actually a
14 composite or altered photograph, and you suspect that
15 it's possible that the photograph could be digitally
16 altered, how do you do that?
17 Is it sometimes extremely difficult to
18 discern?
19 A. Sometimes it's very, very difficult to
20 discern.
21 The things that you would look for, the
22 type of indicators would be, the picture would be
23 perhaps slightly out of focus, less clear than others
24 within a series, for instance.
25 Or if digital manipulation is done and
26 one particular picture is returned purporting to be an
27 original as part of the series, you'd look for a lack
28 of color balance, or just an overall feel that it's
158
1 different than all the rest.
2 If you have nothing to compare it to, you
3 look in other areas.
4 Q. What do you mean by color balance?
5 A. There is a tinting that becomes apparent
6 when -- I guess we've all seen it. I've seen it way
7 too many times -- when you get your films back from
8 the lab, they're either all a little bit too blue or
9 too yellow or too pink, or something of that nature.
10 But, almost invariably, that color shift
11 off of a normal neutral tone will be consistent
12 throughout a row or series of rows, depending if they
13 were all processed at the same time.
14 If a particular image has been reinserted
15 after being manipulated from another source, there is
16 no guarantee that that balance or that shift from
17 what's called neutral, neutral density, ND, there
18 could very well be a discernible color shift for the
19 questioned photograph.
20 Q. And again, that's because it was
21 processed at a different time; is that right?
22 A. No. It could -- the final result would
23 have been processed at the same time, but there would
24 have been elements in the creation that created a
25 shift in another direction that would override the
26 general shift of the roll as it's processed.
27 Q. Now, if you are creating a composite
28 photograph, and you want to make sure that -- or
159
1 attempt to make sure that you mask it -- in other
2 words, you don't want anybody to find out that it's
3 actually a composite; you wanted people to believe
4 it's an original photograph or negative -- what is
5 a -- what's a very basic thing that you have to do,
6 keeping in mind that you're assuming that somebody's
7 going to go back and look at the original negative,
8 and not just the print?
9 A. You'd have to substitute something for
10 the original negative. You'd have to hide, destroy,
11 get rid of the original negative, so that it wouldn't
12 be seen, and substitute something that would convince
13 most people or everybody that it is the original, in
14 fact.
15 Q. And so you'd have to actually create a
16 duplicate negative; is that right?
17 MR. GELBLUM: Objection. Leading. He didn't
18 say that.
19 A. I wouldn't say it, anyway.
20 It wouldn't be a duplicate negative; it
21 would be a copy negative that would be altered. It
22 would not be a straight duplicate. Duplicate, using
23 the dictionary term, means a straight copy. It would
24 be a later generation, creation, and not actually a
25 duplicate, per se. It would appear to be an original,
26 but it would not be.
27 Q. Okay.
28 Now, one more area of general testimony
160
1 before we get into the subject photograph.
2 How do you -- can you explain -- if you
3 need to use the board, you can do that -- how --
4 what's the process by which you create this copy
5 negative?
6 Again, assuming that you have a composite
7 and that you want to fool people, you want people to
8 think that it's the -- actually the original negative?
9 A. There are a number of ways of doing this.
10 Again, this is hypothetical, because
11 you'd have your choice. There would be a small menu
12 of ways of dealing with it.
13 One thing you could do is, you could
14 create the phony image that you want. Theoretically,
15 I'd want it to be at the end of a roll, either the
16 beginning end or the far end, one way or the other, so
17 you don't have to match it within other elements.
18 And --
19 Q. Well, when you say "match it within other
20 elements," why don't you illustrate what you're
21 talking about on the board?
22 A. Okay.
23
24(Witness draws on board.)
25
26 MR. LEONARD: You can using a fresh --
27 (indicating to drawing paper).
28 THE WITNESS: Okay.
161
1 A. Standard rolls of film used to come in
2 20-exposure rolls and 36-exposure rolls.
3 We go on vacation, we buy film. We ask
4 how many exposures. We want 24. Gives you less
5 pictures, but it's the least expensive way to buy the
6 film and less expensive to process. If you have a
7 limited number of pictures you want to take of an
8 accident, somebody hits your car, you get a smaller
9 roll, maybe 12 exposures, something small.
10 That's not relevant for after this, but I
11 thought I'd mention that.
12 On 35-millimeter film, the film comes in
13 a canister, and the film is fed out of a
14 light-safe-type of squeezing or sponge mechanism, and
15 stretches out this way. (Indicating.) It's got
16 something called a tongue at the end, and that's
17 basically what you've got.
18 You have what invariably ends up being
19 wasted leader at the beginning, which is light struck.
20 That area which was outside of this in the first place
21 is light by light. As you load it becomes useless
22 it's called light striking. That's the technical
23 term.
24 When you load it into a camera, that
25 light-struck area usually gets stretched, so it goes
26 over what is known as the frame aperture, and gets
27 picked up by the pick-up reel on the far side of the
28 camera.
162
1 You then close the back of the camera,
2 advance it by using the cocking mechanism runoff and
3 exposure, do it again. Usually, about the third time,
4 you've cleared all of the light-struck area. What
5 you're left with is the first actual frame of
6 exposure.
7 Now, the easiest way to deal with a fake
8 photograph, if you're going to use this particular
9 type of technique, is to make it either the first or
10 the last one. The reason that being is, if you're
11 trying to match it to the next item, all you have to
12 do is match it to one instead of two.
13 If it were to fall in the middle, between
14 two other elements, you've got to match it to two
15 of -- you've got to get it to register, to fit. It's
16 got to fall in from exactly the right spot.
17 Q. When you say match an element, can you
18 explain that a little bit more?
19 Are you talking about lining up with the
20 other negatives or the other frame?
21 Is that what you're talking about?
22 A. There are various elements: Exposure,
23 density, color balance, and most basically, position.
24 More than anything else, position.
25 If you were to use, say, two separate
26 cameras to insert a digital frame, as opposed to the
27 rest of it, which might be photographic frames,
28 arbitrarily, to get it to fit, you've got to get it to
163
1 fall in exactly the right spot on the film.
2 Between the frames, there is a spacing.
3 On high quality cameras, that spacing should be either
4 absolutely or very close to uniform in every single
5 frame.
6 On cheaper cameras, it may not advance
7 quite as far. It might advance a little bit too far,
8 and you won't get an even frame in between. What
9 you'd want is, it to fall in as close to normal to
10 where it should normally fit as if it were a
11 legitimate frame.
12 Q. You indicated space -- spacing -- sort of
13 vertical spacing. I'll call it vertical spacing for
14 purposes of this diagram.
15 There's also -- and that would be the
16 spaces in between the two negatives or two frames?
17 A. That's correct. This would be the
18 spacing in between.
19 Q. There is also spacing or positioning of
20 the frame with -- or the image with relation to the
21 outer edge of the film, correct?
22 A. That is correct. The position away from
23 the actual edge of the film itself, along the upper
24 and lower edges of the film, are what is called
25 sprocket holes. Those sprocket holes are the device
26 by which the sprocket advance of the camera advances
27 the film and pulls the next frame up and gets it to
28 fall into the right position.
164
1 And it's -- there are, on a standard
2 roll, standard camera, 35-millimeter camera, eight of
3 these sprocket holes for every frame.
4 In motion-picture film, with half-frame
5 film, it's four sprockets per frame.
6 Q. So if you are going to try to create a
7 false original negative, you would want to make sure
8 that you have, for instance, the -- the false frame
9 lined up exactly with the -- with the first of the
10 real frames; is that right?
11 A. You'd have to -- you'd have to at least
12 try; otherwise, it would be very easily detectable.
13 Q. Now, you mentioned that you would --
14 there would be other things that would have to be in
15 the register. I think you said color, exposure,
16 things like that?
17 A. There are other -- there are other
18 elements that you would need to match. Color balance,
19 we've discussed.
20 Density is another issue, too. If you
21 are trying to match your created frame, for want of a
22 better term, to legitimate frames, you'd want the
23 exposure to at least appear about the same as all
24 those around the original, especially with an
25 automatic exposure camera. Otherwise, the question is
26 raised, why are the other frames off. You'd -- yours
27 would be either too light or too dark. If yours is
28 normal, those around it might be too light or too
165
1 dark.
2 Q. Okay.
3 You can retain your seat -- retake your
4 seat, please.
5
6(The witness complies.)
7
8 Q. Now, have you examined various materials
9 in this case relating to the questioned photograph?
10 A. Yes.
11 Q. Okay.
12 What materials have you reviewed?
13 A. I've reviewed two contact sheets, one
14 containing the questioned frame, one that does not. I
15 have looked at an 8-by-10 frame of the questioned
16 frame, a print of the questioned frame. A print, an
17 8-by-10 print of the lower half, or approximately half
18 of that questioned frame, and also two other frames
19 from the two contact sheets or negative strips in
20 question that purport to show Mr. Simpson.
21 Q. Did you travel to Buffalo, New York to
22 examine your -- what was purported to be the original
23 negative of this photograph?
24 A. Yes, I did.
25 THE COURT: All right. Now would be a good
26 time.
27 MR. LEONARD: Thank you.
28 THE COURT: Ten minutes, ladies and gentlemen.
166
1 Don't talk about the case. Don't form or
2 express any opinions.
3
4(Recess.)
5
6 (The jurors resumed their
7 respective seats.)
8
9 Q. (BY MR. LEONARD) When we took the break,
10 we were talking about when you traveled to Buffalo to
11 examine what was represented to you to be the original
12 negative of the subject photograph.
13 Did you examine the original negative of
14 it?
15 A. I examined what purports to be the
16 original negative.
17 Q. Okay.
18 And did -- by the way, you also had an
19 opportunity to read Harry Scull's, the photographer's
20 deposition; is that right?
21 A. That's correct.
22 Q. And Mr. Scull represented in his
23 deposition that that -- that the negative had never
24 been duplicated, that the negative that you ultimately
25 were shown was the original negative, correct?
26 A. That's correct.
27 Q. Okay.
28 And when you were in Buffalo, did you
167
1 also examine some other items, other than the
2 original -- what was purported to be the original
3 negative of this particular photograph?
4 A. Yes.
5 I viewed what purported to be the Scull
6 negatives of three separate rolls of film and three
7 contact sheets made from those negatives, one each,
8 and a series of individual 8-by-10 photographs, very
9 similar to what was supplied to me, that being a
10 full-size 8-by-10 of what I'm calling frame 11,
11 meaning sheet one or roll one, frame one.
12 Q. And the 1-1 is the photograph that
13 purports to show Mr. Simpson walking across the
14 football field?
15 A. Yes.
16 Q. That frame 1-1?
17 A. That's what I'm calling 1-1.
18 Also, a lower portion of the body showing
19 the feet in that photograph, as well. And as I
20 recall, for two other individual frames, also showing
21 Mr. Simpson, one by himself holding a microphone, and
22 one with a football player.
23 Q. Now, as a result of your examination and
24 analysis of these items, have you come to any
25 conclusion with regard to the authenticity of the
26 subject photograph?
27 A. Now or then?
28 Q. Now.
168
1 A. Now? Yes I have.
2 Q. What is the conclusion?
3 A. My conclusion is that there is a high
4 likelihood of forgery.
5 Q. Now, tell us first in general terms what
6 you base that opinion on.
7 A. On initial observation, noticing
8 problems, discrepancy between what appears actually on
9 the negative itself and the surrounding area,
10 comparisons of that negative to the others on the
11 roll, and the other roll, measurements, positioning,
12 color balance and endless -- I can't say endless -- a
13 number of problems with it.
14 Q. Okay. Now, have you, for purposes of
15 illustration before the jury here, have you prepared
16 some slides that demonstrate some of these problems
17 that you've identified?
18 A. Yes, I have.
19 MR. LEONARD: Okay. Let's put up the -- first
20 of all, let's illustrate the contact sheet that
21 contains frame 1-1.
22 MR. P. BAKER: This is 1832.
23
24
25
26
27
28
169
1 (The instrument herein referred to
2 as Contact sheet of negatives
3 which contains photograph of
4 O.J. Simpson wearing Bruno Magli
5 shoes was marked for
6 identification as Defendants'
7 Exhibit No. 1832.)
8
9 MR. LEONARD: Can you pull back -- first of
10 all, pull back to get a full view of the contact
11 sheet.
12 Q. Now, what does that represent that's
13 illustrated on the Elmo, sir?
14 A. This appears to be roll number one of
15 the -- of the two that were supplied to me.
16 Q. Okay.
17 MR. LEONARD: Can you focus that a little bit
18 better.
19 Now, you can take that down (indicating
20 to Elmo screen).
21 Q. (BY MR. LEONARD) Now, first of all,
22 where was -- where is 1.1, the image of Mr. Simpson?
23 Where is that located on the contact sheet?
24 A. As we view it here, in the extreme lower
25 left.
26 Q. Okay.
27 A. This would be exposure 1, exposure 2,
28 exposure 3, and so forth.
170
1 Q. Is that the first frame in the roll?
2 A. Yes, it is.
3 Q. Okay.
4 MR. LEONARD: Now, you can take that down, put
5 up the next slide, please.
6 MR. P. BAKER: This is going to be a set of
7 slides marked next in order.
8 This will be slide number one.
9 THE CLERK: 2282.
10 MR. P. BAKER: 2282?
11
12 (The instrument herein referred to
13 as A series of slides was marked
14 for identification as Defendants'
15 Exhibit No. 2282.)
16 Q. (BY MR. LEONARD) Before we go on to the
17 next image, you had indicated earlier when we were
18 talking, in theory, that if you were going to alter a
19 photograph and then attempt to hide the fact that you
20 altered it, and create a copy negative, you would want
21 to insert it either at the first -- as the first or
22 last frame; is that correct?
23 MR. GELBLUM: Objection. Argumentative.
24 Leading.
25 THE COURT: Overruled.
26 A. That is what I testified to, yes. If
27 I -- if I were to do this, and I were going to make it
28 as easy as possible, myself, I would use either the
171
1 first or the last one.
2 Q. Okay.
3 MR. LEONARD: The next image up, please.
4 If you could, pull back a little bit,
5 please.
6 Now, what is in the exhibit number,
7 please?
8 MR. P. BAKER: Number 1 of 2282.
9 Q. (BY MR. LEONARD) What does that
10 illustrate?
11 A. This illustrates frame 1-1 and frame 1-2.
12 That 1-1 and 1-2, the first two frames exposed on --
13 on that roll of film.
14 Q. Now, is there anything of significance
15 that is indicated on that slide that you -- with
16 regard to your opinion?
17 A. Specifically in this -- in this case,
18 there's two things that stand out. Number 1 frame,
19 1-1, is as we view it here, which is at the bottom, is
20 slightly too far to the right.
21 Q. Okay. It's difficult to see.
22 Did you create another slide that
23 illustrates that?
24 A. Yes. It should be the next one.
25 MR. P. BAKER: Slide 2 of 2282.
26 A. (Continuing.) The difference is the
27 degree of the black line between the edge, the sharp
28 edge of the -- of the paper and the edge of the frames
172
1 themselves.
2 Q. Well, using the pointer, can you actually
3 point that out to the jury, please.
4 A. Yes.
5 The edge of -- the right-hand edge of
6 frame 1-1 comes right up against the paper as a very,
7 very thin line.
8 The one for the next frame over is out of
9 alignment; it's too far over to the left.
10 Actually, the one for 1-2 is where it's
11 supposed to be. It is in the same positioning as all
12 of the other frames on the contact sheet. The only
13 one that falls too far to the right is frame 1-1.
14 Q. Now, why is that significant?
15 A. We were discussing before the -- the idea
16 and the concept of registration or positioning.
17 On a high quality camera, such as a
18 Canon, Minolta, Nikkon, Pentax, any of those like it,
19 you have what is known as the frame aperture. The
20 frame aperture is what delineates the border. It
21 creates the border of the individual frame, and it is
22 fixed; it never changes.
23 You have film guides top and bottom that
24 hold the film in line and parallel to the -- to the --
25 to the frame aperture itself. And you have a back
26 pressure plate that keeps the film flat.
27 When you make the exposure, a shutter
28 allows light to come in and strike the film. The
173
1 thing that keeps it from spreading out and going into
2 where the next frame would be is this frame aperture.
3 All cameras have frame apertures. The
4 thing is that it doesn't move; the position never
5 changes; it is fixed.
6 Q. Now, the difference between 1-1, which is
7 slightly to the right, and 1-2 is minimal, is it not?
8 A. Yes.
9 Q. But is that nonetheless significant?
10 A. It's extremely significant.
11 You wouldn't expect to find any change,
12 in fact. Nowhere else on either of the first two
13 contact sheets do you find a single instance of this
14 happening, except in this one spot.
15 Q. And again, relating back to what you
16 were -- what you had told us in general terms about
17 creating a copy negative, assuming that this is a
18 composite negative, what does that tell you?
19 A. Well, it would tell me that in all
20 probability, frame 1-1 did not get onto this film
21 using the same camera as all of the other pictures.
22 All of the other pictures fall exactly
23 where you would expect them to, in exactly the correct
24 position and spacing. The alignment is -- alignment
25 is the same, side to side, exactly where you would
26 expect it to be.
27 This particular one falls just too far to
28 the right.
174
1 In fact, to clarify it, just to be
2 absolutely correct, we're looking at the film
3 sideways. Theoretically, we should be looking at it
4 horizontally, which means that the --
5 THE WITNESS: The other way. That's it.
6 Frame 1-1 is actually too close to the
7 bottom of the film. The frame numbering is at the
8 top; the identification, the type of film, et cetera,
9 et cetera, the film speed, which is G400, indicating
10 400 grain film or speed film.
11 You can see -- in fact, it's easier to
12 see it this way, (indicating) too, that you have the
13 frame itself coming directly to the piece of paper,
14 and then this greater spacing, this black line here.
15 Now, this works, when you do it from the
16 outside of the frame or from the inside. And it
17 doesn't from -- it does it from either end, either the
18 bottom end or the top end.
19 Q. All right. Now, can we -- can you take
20 that back.
21 MR. LEONARD: Can we see the next slide,
22 please.
23 MR. P. BAKER: Next slide is No. 3 of 2282.
24
25 (Frame No. 3 of Exhibit No. 2282
26 is displayed on the Elmo screen.)
27
28 Q. (BY MR. LEONARD) Now, you can -- okay.
175
1 Now, what does this slide illustrate?
2 A. This -- this particular slide shows what
3 I observed on the contact sheet.
4 There is a secondary edge here.
5 (Indicating.)
6 What I mean by that is, the bottom of the
7 frame line itself is, of course, where it turns from
8 light to dark or black.
9 The edge, the normal edge of the paper
10 itself -- I'm sorry -- of the film itself, is where it
11 goes from this lighter dark area here, to total
12 darkness or black.
13 Q. For now, you've indicated there seems to
14 be a horizontal line close to the actual bottom line
15 of the frame.
16 A. That is correct.
17 Q. Okay. And?
18 A. There appears also to be a slight shift
19 of the gray values above and below, that changes
20 exactly at the point where that second edge occurs.
21 Q. Now, can you explain the significance of
22 that with regard to whether or not this is a copy
23 negative?
24 A. If this represents -- you see here how
25 it's extremely dark here?
26 Now, with a negative, the more light you
27 get, the darker it gets when you print a negative. In
28 other words, there is --
176
1 THE WITNESS: Is it possible to sharpen that
2 just a little bit, please.
3 Thank you. That's -- oops.
4 MR. LEONARD: Come on, Phil.
5 MR. P. BAKER: Here we go.
6 THE WITNESS: There you go.
7 A. (Continuing.) This area here has the
8 least amount of light held back. It's striking, so it
9 burns it in; it becomes darker.
10 This area between this horizontal line,
11 as we view it here, and that darker area, has a gray
12 value that appears to be slightly lighter than the
13 area above it, indicating that this might be, in fact,
14 a false edge or some kind of an add-on by relating to
15 that type of phenomenon.
16 Q. Now, how does that indicate, if it does,
17 that this may be a duplicate or a copy negative?
18 A. There is no natural situation in
19 photography that would give you that false edge by
20 itself. Where the film ends it should just end. We
21 should not see anything of that nature. It does not
22 occur naturally.
23 Q. And keeping in mind the process that
24 you've described of creating a copy negative, how can
25 that false edge be explained?
26 A. If you were going to create a counterfeit
27 of some kind of a fabricated negative, you would need
28 a way of registering it, you'd need it to fall into a
177
1 specific place.
2 If you were going to deal with that sort
3 of a situation, it might leave you with a false edge.
4 In other words, if you were to photograph
5 it against something else, you would end up with a
6 false edge, which would look something like that.
7
8(Indicating.)
9
10 Q. Okay.
11 MR. LEONARD: Can we see the next slide,
12 please.
13 MR. P. BAKER: No. 4 of 2282.
14
15(No. 4 of Exhibit No. 2282
16 displayed.)
17
18 MR. LEONARD: You're going to have to focus.
19 MR. P. BAKER: I'll try to zoom in.
20 MR. LEONARD: We want to zoom in on the black
21 line.
22 There you go.
23 Q. (BY MR. LEONARD) Now, what does this
24 illustrate?
25 A. One of the strange things that I noticed
26 when this print was supplied to me is that it showed,
27 fortunately, the area around the edge of the print
28 itself, of the frame itself on the sides, although not
178
1 on the top or bottom -- it did on the bottom but not
2 on the top.
3 What is odd is there is what appears to
4 be some kind of a line running between the edge of the
5 frame itself and the sprocket hole area. There is no
6 natural phenomenon to allow for it. This -- the film
7 itself was not created with a line already on there.
8 The odd thing about it is that it kicks
9 back light, and kicking back light, it reflects light
10 back into the paper itself and tends to make it glow a
11 bit. So that where you've got the perforations on the
12 film, it ignites, visually, the line in that area.
13 Where you don't have the light gathering effect of a
14 sprocket hole, it turns to operate black then, and
15 when you have another sprocket hole, it comes on then.
16 This could be the indication of a false edge.
17 In other words, if you were going to
18 create a composite and mechanically photograph another
19 negative in register against another piece of film,
20 and the light kicked back from the sprocket holes, it
21 would give you exactly that type of effect.
22 MR. LEONARD: Can we see the next one, please.
23 MR. P. BAKER: No. 5 of 2282.
24
25 (No. 5 of Exhibit No. 2282
26 displayed.)
27
28 Q. (BY MR. LEONARD) Okay.
179
1 Now, explain this slide.
2 A. This is one of the most curious things
3 that I found on there, and the issue is this: The
4 frame 1-1 is slightly longer than the adjacent frames,
5 that is, if you measure it with a compass with a fixed
6 position, you'll find that the compass actually spans
7 the exact width, or height, actually, because the way
8 we're looking at it now, this way, edge to edge,
9 precisely. But against the one in question, the
10 compass falls within the boarders. It's very slight,
11 but it is there.
12 Q. So that the -- the frame 1-1 is slightly
13 longer than frame 1-2; is that correct?
14 A. That is correct.
15 Q. Now, how is that significant in your
16 opinion?
17 A. Well, as I said before, the frame
18 aperture determines the size and the border of the
19 actual image. If indeed it's legitimate, and if it
20 comes from the same camera, it should be absolutely
21 identical. It should never change from frame to
22 frame.
23 Unfortunately, the negative itself has
24 been cut apart. Everything beyond the first five
25 images is on a second -- second, third, fourth, and
26 what have you, strip of five each. The first two have
27 been cut away from numbers 3, 4 and 5, so the only two
28 we can accurately determine to measure between the two
180
1 are frame 1-1 and frame 1-2.
2 Since we don't know how this would have
3 been created, we don't know for a fact that the rest
4 of them are actually accurate within -- within the
5 sizing.
6 However, the frame sizing is smaller on
7 every other frame except frame 1-1, in any case.
8 MR. LEONARD: Now, can we see the next.
9 MR. P. BAKER: This is No. 6 of 2282.
10 MR. LEONARD: And I think we --
11 THE WITNESS: Phil, can we -- Mr. Baker, can we
12 possibly please use the backlit large one on this one,
13 please.
14 MR. LEONARD: Use the print.
15 MR. P. BAKER: 1931.
16
17(Exhibit No. 1931 is displayed.)
18
19 A. This one is very difficult to see. It's
20 a lot easier to see backlit as you actually look at
21 the print itself.
22 What this refers to is the -- can we blow
23 that up a bit. Can we get in closer just right about
24 in here. (Indicating to photo.)
25 MR. LEONARD: Hold it flat and get it in
26 closer, please.
27 MR. BAKER: Say please.
28 MR. LEONARD: Please.
181
1 MR. P. BAKER: It's okay.
2 A. It really doesn't show up very well here.
3 But examining the print, the original
4 print that was sent to me, I discovered that there was
5 an entity along here that gives what appears to be --
6 appears to be sort of an elongated S shape that
7 appears to be retouching, physical retouching, using
8 perhaps a brush or something of that nature.
9 It's virtually impossible to see here,
10 but if you can examine it on the actual photograph
11 there it shows up very, very well. The problem is
12 it's very, very dark, and very difficult to see in
13 this nature, but the positioning is right along in
14 here.
15 Q. Now, you've --
16 THE COURT: Why don't you indicate that for the
17 record. I can't see what he was marking.
18 MR. P. BAKER: 1931.
19 MR. LEONARD: It's 1931.
20 Can I approach?
21 THE COURT: Yes.
22 Q. (BY MR. LEONARD) If you can, sir, circle
23 the area you're describing.
24 A. I kind of hate to do that on the original
25 print. Is there anyway of avoiding doing that?
26 THE COURT: Verbally describe it then. He was
27 just pointing up there.
28 MR. P. BAKER: I've got a laser copy.
182
1 MR. LEONARD: We can do it on that. You have a
2 print, right?
3 MR. P. BAKER: Here we go.
4 THE WITNESS: Would it --
5 Q. (BY MR. LEONARD) Why don't use the
6 print.
7 A. Would it be possible to show the jury.
8 MR. LEONARD: Can he demonstrate to the jury?
9 THE COURT: Why don't you mark it first.
10 MR. LEONARD: Mark it first, yeah.
11 THE COURT: You want to mark a copy?
12 MR. LEONARD: I think it shows up better on the
13 print.
14 THE COURT: Well, mark it on the copy so you
15 won't mark the original.
16 MR. BAKER: Don't we have another original?
17 MR. LEONARD: I think we have another.
18 THE COURT: You numbered a copy.
19 MR. LEONARD: May he demonstrate to the jury,
20 Your Honor?
21 MR. P. BAKER: That would be 2283.
22 MR. LEONARD: The copy, 2283.
23 THE COURT: Go ahead.
24 (The instrument herein referred to
25 as copy of plaintiffs' exhibit
26 1932 marked by Mr. Groden was
27 marked for identification as
28 Defendant's Exhibit No. 2283.)
183
1 Q. (BY MR. LEONARD) I suggest you hold up
2 both the copy and the print, if you could, and walk
3 slowly in front of the jury and demonstrate --
4 A. Okay.
5 Q. You can make your explanation there, and
6 then with the Court's permission, then you can walk
7 down slowly and show the jurors.
8 THE COURT: Okay.
9 MR. LEONARD: Thank you.
10 A. This is --
11 Q. (BY MR. LEONARD) I would suggest that
12 you stand back and give a general explanation.
13 A. Okay.
14 Q. And then as you walk along you can point
15 out what you're indicating?
16 A. Okay.
17 Where I've indicated in red here is the
18 approximate location on the original print of where
19 there is what looks like almost a worm, that is like
20 little lines that appear to be retouching lines that
21 are diagonal, and it's dark against dark, it's very
22 difficult to see.
23 Backlighting it, in other words, using
24 the backlit stand, it shows up much clearer, but --
25 may I just hand it and they can pass it?
26 MR. LEONARD: I suggest, sir --
27 THE WITNESS: It's this darker area in here.
28
184
1(Witness approaches juror.)
2
3 THE COURT: Okay. Don't hold any intimate
4 conversations with the jurors. Just hand it to them.
5 Q. (BY MR. LEONARD) You can just pass it
6 along and let the jurors look at it.
7
8 (Photograph and copy with marking
9 and distributed among the jurors.)
10
11 A. Of all the things I found on that film,
12 this is the most difficult to see on that type of
13 viewing situation.
14 MR. GELBLUM: May I approach the jurors so I
15 can see it myself?
16 THE COURT: Would you hand that to the jurors
17 in the front.
18 MR. LEONARD: Can we see the next slide,
19 please.
20 MR. P. BAKER: No. 7 of 2282.
21 THE COURT: Excuse me?
22 MR. P. BAKER: No. 7 of 2282, another slide.
23
24 (No. 7 of Exhibit No. 2282
25 displayed.)
26
27 Q. (BY MR. LEONARD) Can you explain this,
28 please, and the significance?
185
1 A. Yes.
2 There's a sharp delineation through the
3 leg that comes down, goes straight across horizontally
4 at a point in the leg. This is the right leg. The
5 tonal value below that is lighter than it is above
6 that. There's a point where that changes, and what
7 appears to be possible retouching marks at exactly the
8 point where the tone changes in the leg, it appears
9 sharper than other things that are within the leg
10 itself.
11 Q. Okay.
12 MR. LEONARD: Can we see the next, please.
13 MR. P. BAKER: No. 8 of 2282.
14
15(No. 8 of Exhibit 2282 is
16 displayed.)
17
18 Q. (BY MR. LEONARD) What significance does
19 this -- what does this demonstrate, this slide, sir?
20 A. The bottom of the shoe on the right foot
21 appears to be reflecting light, indicating a sole
22 pattern. Based on the positioning of that shoe over
23 the line, it's my opinion that should be reflecting
24 white instead of red, as the angle at which the light
25 would travel in a straight line between the camera
26 lens and the shoe should be reflecting, as it would
27 with a mirror coming this way, if it it's reflecting
28 anything legitimately at all, it should be reflecting
186
1 off of white below the tip of the sole. But whoever
2 did this had it reflect as red instead of white. And
3 the angle seems wrong.
4 Q. You talked about earlier the registration
5 of elements in a composite or altered photograph.
6 In your opinion, is this an example of a
7 malregistration, if you will?
8 A. Yes.
9 I believe the next slide would show that.
10 I'm not sure.
11 MR. LEONARD: Let's go to the next slide.
12 MR. P. BAKER: No. 9 of 2282.
13
14 (No. 9 of Exhibit No. 2282 is
15 displayed.)
16
17 MR. LEONARD: If you could, what I'd like to
18 you do, Mr. Baker, is to focus in on the right shoe.
19 That's the left shoe.
20 MR. P. BAKER: I know that. It's a negative.
21 It's backwards.
22 MR. LEONARD: Oh, okay.
23 MR. P. BAKER: That's as far as it goes.
24 MR. LEONARD: It's okay.
25 A. Although it's easier to see in the actual
26 photographs themselves, could we try to focus it a
27 little bit more, please?
28 Thank you. Good.
187
1 The edge of the shoe comes to this point,
2 the red reflection, for want of a better term, extends
3 beyond the edge of the shoe. In other words, we
4 should see no red image beyond where the black ends.
5 If someone had used that matte insert
6 process to reflect down and insert the sole pattern at
7 the bottom of the shoe, it should fall in register
8 where it belongs on the sole of the shoe. In fact, it
9 extends beyond the edge of the shoe itself.
10 Q. (BY MR. LEONARD) By the way, as you look
11 at that photograph, do you see any indication
12 whatsoever of any moisture or the ground being wet at
13 all?
14 A. No, none.
15 As a matter of fact, one of the first
16 things I looked for was that kind of indication when I
17 was at Buffalo.
18 The bottom of the -- the bottom of the
19 shoe, the sides of the shoe, you would expect that it
20 would have observed some moisture and appear as darker
21 spots.
22 There is no indication whatsoever,
23 there's no glistening or reflecting of light, of
24 stadium lights or sunlight or anything else, into the
25 camera itself at any point, indicating that the shoe
26 is dry.
27 Q. And the surrounding ground?
28 A. The surrounding ground, too, there's no
188
1 indication of any puddling, gathering of water
2 splashing. One might assume as the heel hit the
3 ground it might cause water to splash up if it were
4 wet.
5 Q. Okay.
6 Now, just one other --
7 MR. GELBLUM: Objection, move to strike as
8 speculation. There's no indication that there was
9 anything about the weather conditions or the field
10 conditions at the time.
11 MR. LEONARD: We'll prove that up, Your Honor.
12 THE COURT: Overruled.
13 Q. (BY MR. LEONARD) Now, just on one other
14 observation with regard to that photograph, does the
15 heel appear to be flat on the ground, the heel of that
16 shoe?
17 A. The heel itself appears to be virtually
18 horizontal, yes, flat against the ground with no
19 indication of any spacing above this area at all.
20 Q. Okay.
21 Thank you.
22 MR. LEONARD: Can we see the next.
23 MR. P. BAKER: This is number 10.
24
25 (No. 10 of Exhibit No. 2282 is
26 displayed.)
27
28
189
1
2 MR. LEONARD: First of all, let's try to focus
3 it.
4 Q. (BY MR. LEONARD) Okay. Now, did --
5 we're not going to use this, I can see that it's not
6 really acceptable, but before we move to the two
7 different -- the two prints to actually illustrate
8 this, just tell us -- you can turn it around now.
9 Tell us what you're trying to illustrate with this
10 slide?
11 A. Every slide, every frame on both contact
12 sheets has a slightly cyan tint, that is slightly blue
13 to blue-green. Cyan is a specific color that's a blue
14 to blue-green type of tint.
15 Every single frame on both of the two
16 contact sheets shows that, except the frame in
17 question, which is frame 1-1, which has an overall
18 magenta or pinkish tint to it. Is the only one that
19 doesn't fit visually.
20 Q. Okay.
21 Let me see if I can find the original
22 prints.
23 MR. P. BAKER: First one 1930, the second one
24 1921.
25 Q. (BY MR. LEONARD) Show you --
26 MR. LEONARD: 1930 and 1921?
27 MR. P. BAKER: Yes, sir.
28
190
1 (The instrument herein referred to
2 as photograph of defendant holding
3 microphone was marked for
4 identification as Defendant's
5 Exhibit No. 1921.)
6
7 Q. (BY MR. LEONARD) Now, once again, due to
8 the technical problem here, we're going to have to
9 have you try to illustrate this to the jury by showing
10 you photographs.
11 And if you would just stand up, and first
12 of all show the jury where the best place on the two
13 photographs is to illustrate this point.
14 MR. GELBLUM: May I see the photographs first,
15 Your Honor?
16 MR. LEONARD: Sure.
17
18(Mr. Gelblum reviews photographs.)
19
20 A. The two prints in question show a
21 reflective value. Frame 1-1 shows a magenta or
22 pinkish tint, to the point where just inspecting this
23 photograph I thought it was a pink shirt instead of a
24 white shirt.
25 In the shadow areas, in other words,
26 where the -- where the white becomes darker, or what
27 you'd expect it to be in a neutral situation, gray, it
28 becomes extremely magenta or pinkish in tone. That's
191
1 on this one and only this one.
2
3(Indicating to exhibit No. 1930
4 photograph showing full view of
5 Mr. Simpson walking.)
6
7 On all the other pictures that show
8 Mr. Simpson or other football players, when you get to
9 that darker area, it turns sort of greenish or -- or
10 cyan-ish, so they don't match each other between the
11 existing frame.
12
13 (Indicating to Exhibit No. 1921
14photograph showing upper
15torso of Mr. Simpson with
16microphone.)
17
18 Did you want me to pass these?
19 Q. Yes, please.
20 Again, if you could illustrate where on
21 the photograph they can best observe this phenomenon?
22 A. Yes. Around the area of the collar or
23 where the -- where the jacket tends to cast shadows
24 against the -- against the shirt, anyplace where it
25 gets dark, where it falls into shadow, the overall
26 tint is cyan on every picture except frame 1-1 where
27 it's magenta.
28
192
1 (Witness indicates to frame 1-1.)
2
3 MR. GELBLUM: Are these new exhibits numbers or
4 is this --
5 MR. P. BAKER: First one is 1930, second one is
6 1921.
7 THE COURT REPORTER: 1-1 is 1930 and --
8 MR. P. BAKER: And the second one is 1921.
9 THE COURT: How much longer will you be?
10 MR. LEONARD: I'll be done by 4.
11
12(Photographs are passed among
13jurors.)
14
15 MR. LEONARD: Can we have the final slide,
16 please.
17 MR. P. BAKER: Number 11 of 2282.
18
19 (No. 11 of Exhibit No. 2282 is
20 displayed.)
21
22 MR. LEONARD: Would you pull back, please.
23
24(Indicating to Elmo.)
25
26 Q. (BY MR. LEONARD) Before we move on to
27 this, what is the significance in the difference in
28 hue the magenta with all the other frames and the
193
1 cyan -- excuse me -- the cyan with all the other
2 frames and the magenta with the questioned frame, what
3 is the significance of that, sir?
4 A. Well, when viewed as the contact sheet
5 itself, in fact, we see that overall neutral to cyan
6 tint on every frame except 1-1, which makes 1-1
7 visually not fit, the balance is off, and the -- and
8 the problem that I described before with trying to
9 exactly match a color balance during a recreation
10 would, in fact, be indicated possibly by this, as well
11 as a slightly out of focus attitude of that particular
12 frame.
13 Q. Could you explain the final slide,
14 please?
15
16
17 (No. 12 of Exhibit No. 2282 is
18 displayed.)
19
20 A. This slide represents that the adjacent
21 frames to the -- to the frames that show Mr. Simpson
22 are extremely overexposed. There is a --
23 Q. Well, let's stop -- let me stop you right
24 there.
25 What do you mean by overexposed?
26 A. The normal exposure, normal skin tone
27 reflective values of the red, green, whatever, this is
28 a normal reflective green, which is what we expect to
194
1 see, and what we do in fact see in every other
2 negative that appears in number 1 and number 2.
3 But the ones surrounding -- the ones near
4 Mr. Simpson are extremely overexposed, and they're the
5 only ones that are overexposed, indicating that
6 perhaps someone had tried at some point to balance
7 frames of him to the mean roll and perhaps did not
8 bother to make any kind of a correction around the
9 ones close to him. It's conjecture, but there is a
10 problem with that, because the exposures are so
11 dead-on for all the rest.
12 Q. Now --
13 MR. LEONARD: You can take that down.
14 Q. (BY MR. LEONARD) Now, based on -- strike
15 that.
16 Now, the factors that you have discussed
17 and you have illustrated through the slides that you
18 demonstrated to the jury, are those the factors that
19 you relied on in reaching your conclusion that there
20 is a high probability that the frame in question was
21 altered?
22 A. Yes.
23 MR. LEONARD: I don't have any other questions
24 at this point.
25 THE COURT: Ladies and gentlemen, we're going
26 to excuse you until Friday at 9 o'clock.
27 Let me remind you not to talk about this
28 case, not to say anything about this case to anyone,
195
1 not to permit anybody to talk to you about this case,
2 not to form or express any opinions about this case,
3 and above all, do not conduct any personal research on
4 any of the subject matters covered in this trial from
5 the very beginning to the present time, till the end
6 of the trial, and I say this particularly because the
7 kind of testimony we received today sometimes lends
8 itself to curiosity on the part of individuals, and
9 one may tend to want to go look at photographs and
10 books and things about it. Okay. Do not conduct your
11 own research on this material.
12 The evidence on which you must make your
13 decision must come only from the trial process, that
14 is from the witness stand and through the evidence
15 that we receive into this trial as evidence only.
16 Everybody understand that?
17
18 (The jury panel answered
19 affirmatively.)
20
21 THE COURT: Don't go doing any research, don't
22 go comparing any photos, don't do any of that stuff,
23 all right.
24 (The jury panel answered
25 affirmatively.)
26 THE COURT: And we're going to be dark tomorrow
27 and we will resume at 9 o'clock, Monday.
28 Have a nice day.
196
1 MR. BAKER: Friday.
2 THE COURT: I'm sorry, Friday. Thank you.
3 Friday.
4 Meanwhile, we'll wait till the jurors
5 clear and we'll hear the motion.
6
7(Jurors exit courtroom.)
8
9(The following proceedings were
10held in open court outside the
11presence of the jury:)
12
13 THE COURT: The Court at this time reverses the
14 plaintiffs' motion to preclude testimony of
15 Dr. Fredric Rieders regarding presence of EDTA in the
16 evidence samples.
17 I read the moving papers, the opposition
18 and the -- I guess this is a responsive pleading by
19 the moving party.
20 Either side have anything else they wish
21 to add?
22 MR. LAMBERT: I'll submit on the motion, Your
23 Honor.
24 MR. BLASIER: I simply add to our papers, I
25 think it's outrageous they would make this motion on
26 December 9.
27 THE COURT: Besides your outrage, do you have
28 anything you want to add with regard to the merits?
197
1 MR. BLASIER: There's no testimony offered by
2 any expert in the case to the effect this is new
3 technology, that this is not acceptable technology.
4 All the experts that testified in the criminal case
5 and by deposition say this is an accepted method.
6 Submit on that.
7 THE COURT: Okay.
8 The Court having read the transcripts
9 that have been submitted together with the moving and
10 opposing papers, notes that the plaintiffs' expert,
11 Dr. Terry D. Lee is, as well as the other
12 documentation submitted, tend to support the position
13 that the -- the testing procedure and the experiment
14 itself in terms of science is a valid and accepted
15 science and a valid and accepted technique.
16 So I think from the standpoint of the
17 Kelly Frye requirements, the objection of plaintiff is
18 not well taken.
19 With regards to the remainder of
20 plaintiffs' objection with respect to whether or not
21 the testing done by the FBI agent --
22 MR. BAKER: Martz, Your Honor.
23 THE COURT: -- Martz, may or may not support
24 one conclusion or the other, I think each expert has
25 their opinion with regards to what it is capable of or
26 what it does or does not establish. I think that goes
27 to the weight of the evidence.
28 So the motion to preclude is denied.
198
1 MR. BLASIER: Thank you, Your Honor.
2 MR. BAKER: Thank you, Your Honor.
3 THE COURT: One thing further.
4 Can I see counsel at side bar.
5 THE CLERK: Off the record.
6 THE COURT: Off the record.
7 THE CLERK: Off the record side bar.
8 THE BAILIFF: We have a brief side bar. Please
9 take a seat in the courtroom if you are going to
10 remain.
11 Thank you.
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