OPPOSITION TO DEFENDANT ORENTHAL JAMES SIMPSON'S MOTION IN LIMINE TO PRECLUDE THE USE OF THE TERM "MATCH" IN THE CONTEXT OF HAIR AND FIBER EVIDENCE
Rufo v. Simpson, 1996 WL 514130 (Cal. Super. Ct., Los Angeles County, Nos. SC031947, SC036340 & SC036876, Sept. 6, 1996)
By two separate motions, Simpson seeks to preclude Goldman's forensic hair and fiber analyst, Douglas Deedrick, from using the term "match" in his testimony regarding comparisons of hair and fiber evidence in this case. The Court should deny Simpson's motions because "match" is simply a common term used by forensic hair and fiber experts to describe the fact that two hair or fiber samples display the same microscopic characteristics, and its use will enable Mr. Deedrick to more clearly communicate to the jury his findings. Mr. Deedrick regularly uses the term "match" to describe his findings regarding hair and fiber evidence while testifying at criminal trials and the term is widely used by other experts in the field and in forensic literature. Moreover, Mr. Deedrick's own testimony will dispel any potential confusion regarding that term. As he did at the criminal trial (and on many other occasions), Mr. Deedrick will carefully explain to the jury the meaning of the term "match" in this context, as well as its limitations. In addition, Simpson's attorneys may elicit further clarification of that term during cross-examination.1
Because "match" is commonly used by experts in this field to identify hair or fiber samples with the same microscopic characteristics, and its specific usage in this context is easily explained by the testifying expert (and easily understood by jurors), courts in California have allowed testimony referring to "matches" and the courts themselves have referred to "matching" hair and fiber evidence. See, e.g., People v. Gallego, 52 Cal. 3d 115, 152 (1990) ( "Another expert testified that fibers recovered from [one victim's] clothing matched fibers from the carpet of defendant's van."); People v. Guzman, 45 Cal. 3d 915, 928 (1988) ("A criminologist ... did match the blue fibers found on [the victim's] bra and on her person with those found at the orchard and in defendant's car. The fibers also matched those from the cloth given to the police ... after defendant had attempted to burn it."); People v. Trujillo, 32 Cal. 2d 105, 109 (1948) ("Clothing belonging to [defendant] was subjected to a test by an expert for the purpose of matching fibers with those found on the ... apparel from [the victim's] body. Eleven different sets of matching fibers were found."); People v. Thomas, 180 Cal. App. 3d 47, 51 (1986) ( "pubic hair matching that of [the victim] was found in a combing of defendant's pubic hair at the time of his arrest"); People v. Lee, 3 Cal. App. 3d 514, 519 (1970) ("the criminalist found human hair on the shoes which matched samples removed from [the victim's] head"); Bonin v. Calderon, 59 F.3d 815, 822 (9th Cir.1995) (observing that in a California state trial, "[e]xperts testified that the bodies of three of the victims bore triskelion-shaped fibers that matched the carpeting in [defendant's] van ... [and that] the bodies of three other victims revealed the presence of hair that matched the [defendant's].").
Indeed, in People v. Hagerman, 164 Cal. App. 3d 967, 971 (1985), the California Court of Appeal used interchangeably the purportedly objectionable term "match" and the term "positive microscopic comparison" (which Simpson cannot possibly find objectionable). The court observed that "[a] laboratory expert noted a positive microscopic comparison between pubic hairs found on the victims and those of the defendant. He found two hairs in the van matching those of the second victim." Id. (emphasis added). The court thus recognized what Mr. Deedrick has consistently maintained: "match" is simply the term by which forensic hair and fiber analysts indicate a "positive microscopic comparison" (i.e., that the tested hairs or fibers share the same microscopic characteristics).
Simpson suggests that the use of the term "match" is improper because a forensic hair or fiber analyst at most can state that two hairs or fibers "have similar characteristics and could come from the same source." His argument fails because its premise is incorrect. "Similar" implies that while the two hair or fiber samples under examination have some identical features, there also are differences in the microscopic characteristics of the samples. That will not be Mr. Deedrick's testimony. A hair and fiber analyst like Mr. Deedrick can determine more thansimilarity: he can observe whether numerous microscopic characteristics within each hair or fiber sample are the same.2 The very quotation from Mr. Deedrick's testimony at the criminal trial cited in Simpson's motion demonstrates this point. As Mr. Deedrick carefully explained, his use of the term "match" does not indicate that "a hair that is found at the crime scene or in a proficiency test originated absolutely from that individual" nor does it indicate "with absolute certainty that a fiber originated from a particular fabric." However, it does mean that the "hair could have come from [a particular person] if it exhibits the same microscopic characteristics" and that "the questioned [fiber] material and the known material exhibit the same microscopic characteristics." 3 (Emphasis added.)
Therefore, the reason that Mr. Deedrick is unable to conclusively identify the source of a particular hair or fiber is not that the microscopic characteristics of that hair or fiber and the known sample differ (or are merely "similar"). The only reason is that while the microscopic characteristics of the hair or fiber evidence are the same as the corresponding characteristics in the known sample, another person's hair or a fiber from another source also could share those same microscopic characteristics. In other words, the hairs or fibers are the same--not merely "similar"--but that "match" still does not conclusively establish their source.
Finally, any lingering confusion regarding the meaning of the term "match" can easily be dispelled on cross-examination. The proper procedure to be followed was demonstrated in Garr v. Commonwealth, 463 S.W.2d 1.09, 110-11 (Ky.1971). In that case, the police found fibers matching defendant's trousers on the victim's bed and fibers matching the victim's bed on the defendant's trousers. Id. at 110. Hair analysis also revealed that pubic and cranial hair found at the crime scene matched the defendant's hair. Id. at 111. The prosecution's expert was allowed to testify as follows: "These hairs I compared microscopically with the head hairs and pubic hairs of [defendant] ... and found that [they] ... microscopically matched in all observable characteristics the [defendant's] hairs." Id. On cross-examination, the expert admitted "that hair and fiber do not possess such individual characteristics as to permit positive identification as emanating from any one person or source [and that] he could not rule out the possibility that the hair of which he testified did come from some person other than the appellant." Id. The expert similarly confirmed that he could not "make such an exclusionary conclusion as to the fiber tests." Id.
As the Garr opinion demonstrates, the appropriate procedure in this case would be for the Court to allow Mr. Deedrick to testify during direct examination that certain hair or fiber evidence "matches" the known hair samples of particular persons or the known samples of fibers from a particular garment or other source and also explain the meaning of the term "match" in this context. To the extent Simpson wants to ensure that the jury has not misunderstood the import of Mr. Deedrick's testimony, his attorneys may further probe the weight to be given to the hair and fiber comparisons on cross-examination.4
For the foregoing reasons, Goldman respectfully requests that the Court deny Simpson's motions and permit Mr. Deedrick to use the term "match" in the context of hair and fiber evidence. In the alternative, the Court should determine the propriety of using the term "match" only after hearing Mr. Deedrick's testimony regarding the common usage of that term by hair and fiber analysts. See Cal. Code Civ. Proc. s 402.
Dated: September 6, 1996
MITCHELL, SILBERBERG & KNUPP LLP
By:/s/
Thomas P. Lambert
Attorneys for Plaintiff Fredric Goldman
NOTES
1. Plaintiffs are filing a single opposition to Simpson's two motions (separately addressing hair and fiber) because the usage of the term "match" is essentially identical whether an expert is discussing hair or fiber evidence. Therefore, the Court need only address this issue once.
2. Simpson's argument that an expert cannot testify that two samples are the "same" because that determination involves a subjective component misses the point. While that determination is to a degree subjective, the subjective component of that determination is the reason Mr. Deedrick's expert testimony is necessary at all. The partly subjective determination that the microscopic characteristics of two hair or fiber samples are the "same" is the critical issue on which his expertise aids the jury.
3. Even if Mr. Deedrick were not allowed to use of the term "match" with respect to hair or fiber samples as a whole (although he should be), he clearly should be permitted to use that term in connection with individual microscopic characteristics. To say that a characteristic in one hair or fiber sample is the "same" as the corresponding characteristic in another is to say that those characteristics "match" in the two samples.
4. Other courts have adopted this procedure in regard to Mr. Deedrick's testimony. On numerous occasions, he has been permitted to testify regarding "matching" hair and fiber evidence. See, e.g., State v. Hernandez, 846 P.2d 312, 318-19 (N.M.1993) ("The State also introduced hair identification evidence, which linked Defendant to Brown's murder.... Doug Diedrick [sic], an expert in hair identification, testified that the hair samples taken from Defendant microscopically matched the hairs collected at Brown's apartment."). The defendant has then been allowed to cross-examine Mr. Deedrick regarding the limitations of his analysis. See id. ("Diedrick [sic] testified on cross-examination that hair identification could not positively identify someone.").