ARTICLE 32 HEARING TRANSCRIPTS
July 13, 1970: Craig Chamberlain (CID Chemist)
(The hearing reopened at 1515 hours, 13 July 1970.)
COL ROCK: The hearing will come to order. Let the record reflect that the parties that were present at the break are apparently in the hearing room with addition of Captain Thompson, for the government. Is counsel for the government ready to proceed with the next witness?
CPT SOMERS: Yes, sir; however, prior to that we have one matter we'd like to take up. At this time the government would like to present an offer of proof as to the blood types of the MacDonald family. We are going to present evidence subsequent to this in a more formal manner as to these blood types, but it might be meaningful to have this information now before we bring the next witness in who is going to testify as to blood types.
MR. EISMAN: I have no objection.
CPT SOMERS: We would offer then that the blood type of Kimberly MacDonald is International Blood Group Type AB positive; that the blood type of Kristen MacDonald is of the International Blood Group O RH negative; that the blood type of Colette MacDonald is of the International Blood Group Type A RH positive; that the blood type of Captain Jeffrey R. MacDonald is of the International Blood Group Type B.
The government calls Specialist Four Craig Chamberlain.
(Specialist Four Craig Stanley Chamberlain was called as witness by the government, was sworn, and testified as follows.)
Questions by CPT SOMERS:
Q Would you state your full name?
A Craig Stanley Chamberlain.
Q Your grade?
A Specialist Fourth Class.
Q Your organization?
A United States Army Criminal Investigation Laboratory.
Q Your station?
A Fort Gordon, Georgia.
Q And your armed force?
A United States Army.
Q What is your duty position?
A I'm a chemist at the criminal investigation laboratory, sir.
Q What is your former education?
A Sir, I have a Bachelor of Science degree from Sacramento State College in chemistry; also eight units of graduate work at the same institution.
Q Have you received any training in chemistry in the Army?
A Yes, sir, I've completed a six-month intensive training program at the criminal investigation laboratory at Fort Gordon, Georgia in identification of marijuana, dangerous drugs, and narcotics, and also blood analysis.
Q What do your duties consist of now at the laboratory?
A Sir, I analyze exhibits given or sent to me by criminal investigators. Also I collect evidence occasionally. This is marijuana, dangerous drugs, narcotics and blood cases also.
Q And how long have you been doing this?
A I've been at the lab since the 1st of September and I believe I started working cases about three months since I got there and I'm still working cases now.
CPT SOMERS: Does the defense care to examine?
MR. EISMAN: Just briefly.
Questions by MR. EISMAN:
Q Specialist Chamberlain, how many units at Sacramento State dealt with blood analysis?
A None, sir.
Q And when did you complete the six months training in the Army?
A The 20th of March.
Q Of this year?
A Yes, sir.
Q How much of that six months dealt with the analysis of blood?
A Approximately two months, sir.
Q And when did you complete that?
A In early January.
Q Of this year?
A Yes, sir.
Q Is this the first matter you have worked regarding blood stains after you completed that course?
A No, sir, it was not.
Q How many other matters have you worked on?
A I've worked one case previously, plus many training cases.
Q So this would be your second case. Is that correct?
A My second blood case, yes, sir.
Q And what case or what tests were you trained on during that period to perform on blood?
A The benzidine test.
COL ROCK: Would you spell the names of any of these technical words that you use, please?
WITNESS: Yes, sir. Do you mind if I write them down, sir, so I will make sure that they are correct?
COL ROCK: Certainly.
WITNESS: The benzidine test, b-e-n-z-i-d-i-n-e. The anti-human precipitan test; precipitan, p-r-e-c-i-p-i-t-a-n. The crust test. Absorption elution, elution, e-l-u-t-i-t-i-o-n; and absorption inhibition.
Q These are the five tests you ran?
A Yes, sir.
Q Now which of these tests is reference to blood typing?
A Three of the tests. The crust, the absorption elution and absorption inhibition.
Q And the other two are for what?
CPT SOMERS: I object. At this point the witness is offered to the defense to go into his qualifications. He's going into the testimony of the witness.
MR. EISMAN: I am not questioning his testimony. I am trying to get what test he's able to perform in giving his expert testimony, whether or not he is qualified as an expert in the field which he is being called for.
CPT BEALE: The objection is overruled.
Q What does the benzidine test regard?
A The benzidine test determines if blood may be present.
Q And the other test? The final test, anti-human precipitan? A The anti-human precipitan test determines if a substance is or is not human blood.
Q Are there other tests which you used in this case?
A No, sir.
MR. EISMAN: I have no further questions of this witness at this time regarding qualifications.
CPT SOMERS: I have one; I'm not sure this was made clear.
Questions by CPT SOMERS:
Q What was your graduate work done in?
A It was done in chemistry, sir.
CPT SOMERS: At this time the government offers this witness as an expert chemist in the field of blood analysis.
MR. EISMAN: I would merely state that since this man only had two months of training regarding blood, and that this is only the second case he worked on, that the investigating officer consider this in determining what weight to be placed upon it -- the testimony of this particular expert.
COL ROCK: As in all matters, such judgment will be noted.
Questions by CPT SOMERS:
Q Specialist, I show you now Government Exhibits 7, 8, and 9 and ask for you to look at them, please?
(Witness did as directed.)
Q Did you assist in the work done on these reports?
A Yes, sir.
Q When did this case first come to your attention?
A Approximately six o'clock on the morning of the 17th of February of this year.
Q And how did it come to your attention?
A I was called by the commanding officer of the laboratory by telephone.
Q And what did he require of you?
A He told me to come to the laboratory and be prepared to go on a field case.
Q And did you go on a field case?
A Yes, sir.
Q Where did you go?
A I came here to Fort Bragg.
Q And when was that that you came to Fort Bragg?
A On the 17th of February of this year.
Q Do you have any idea what time you arrived?
A May I refer to my notes to refresh my memory?
Q If you feel it necessary.
A We arrived at the airport here at eleven o'clock.
Q On what date?
A That was the 17th of February.
Q Where did you go from the airport?
A We were taken from the airport to, I believe, 544 Castle Drive, Fort Bragg.
Q And did you perform some function at 544 Castle Drive?
A Yes, sir.
Q What was that function?
A I was taken into the house there and told about the circumstances, and then after helped in the processing of the crime scene.
Q And did you help in the processing of the crime scene?
A Yes, sir.
Q Did you work with anyone?
A Yes, sir.
Q With whom did you work?
A At all times I worked with Mr. Robert Shaw.
Q Who is he?
A He is a criminal investigator stationed here at Fort Bragg.
Q Now what were you doing in that house, actually physically doing?
A I was looking for and collecting possible blood stains, as well as fibers, general debris and anything that we thought might have been evidential value.
Q Now what would be a method of collecting say a blood stain on a wall?
A If possible, we remove a portion of the wall, place it in a labeled vial.
Q I see. And did you do this?
A Yes, sir.
Q How long did you work gathering evidence there?
A Approximately five days.
Q And what was done with the evidence when it was all collected?
A It was packed up and put on a plane on which I was aboard, and taken by the plane back to the criminal investigation laboratory.
Q And did you participate in the work that was done there?
A Yes, sir, I did.
Q Specifically, did you participate in the typing of blood from the exhibits?
A Yes, sir, I did.
Q Now explain for us, please, the process you go through to take an unknown sample and determine the blood type, if it is blood.
A Just to determine the blood type?
Q Well, explain, if you will, from the beginning, what tests you administer.
A First we perform the benzidine test.
Q Would you explain just a little bit about how that works?
A Yes, sir. The benzidine test -- you take a regular swab, cotton swab, place a drop or two of saline on it, lightly touch the area you are examining to the swab, add a 10% solution of benzidine and glacial acetic acid.
Q If you would, please, could you spell that acid that you just spoke of?
A Yes, sir. That's glacial acetic acid, g-l-a-c-i-a-l, acetic, a-c-e-t-i-c.
Q Go on.
A Then after waiting approximately a minute, add one to two drops of hydrogen chloride to this. If blood is present a dark blue color will show up on the swab.
Q I see. And what is your next step in the process?
A The next step in the analysis of blood stains is to perform the anti-human precipitan test.
Q And please, just briefly, what does that consist of?
A One takes a small portion of the suspected stain, dissolves it in a small amount of saline solution, and then places some anti-human precipitan serum in a small test tube. Upon this, one places the saline solution carefully so that two distinct layers are formed. In five to ten minutes, if blood is present, a white ring forms at the interface of the two solutions.
Q Now what do you mean by interface?
A You have your anti-human precipitan serum; this is placed in the bottom of the test tube. The saline layer with the suspected blood sample, dissolved, is carefully placed on top of this. So you have two distinct layers, which are separated by a line.
Q The line -- is that what you refer to as the interface?
A Yes, sir.
Q What is your next step?
A Then we do the crust test.
COL ROCK: From that white line at the interface, how do you determine whether it is human or animal blood?
WITNESS: Sir, if there is a white line or a precipitate it is human blood.
COL ROCK: Okay, continue.
A We then proceed to the crust test. In the crust test you take a small amount of the material, place it on a glass slide and add about 2% concentration of red blood cells to this.
This is done several times with AB and O red blood cells. One then waits approximately fifteen minutes and examines the slide through a high powered microscope for agglutination.
Q Would you spell that please?
A Agglutination, a-g-g-l-u-t-i-n-a-t-i-o-n. And then we record the results.
Q And this is which test?
A This the crust tests.
Q And what does the results tell you?
A The crust tells us which agglutinins or antibodies may be present in the sample or actually are in the sample, which gives you an indication of blood type.
COL ROCK: Is that same system used in the Army hospitals just to type somebody's blood when he first comes in the service?
WITNESS: No, sir, not exactly, because the army hospitals test fresh blood, wet blood. We are talking about dried blood.
COL ROCK: I see.
Q And is there yet another test that you perform after the crust test?
A Yes, sir, on dried blood stains we next perform the absorption elution test.
Q And again, if you would, just basically explain that, please.
A Yes, sir. One takes a portion of the material upon which the suspected -- the blood stain is found; takes approximately fibers, places it in a small glass well, add a drop of anti-serum to this and teases the fiber apart with a needle. Then you will allow the fiber to sit in the solution for approximately one hour. Then you wash the fibers, wash the anti-serum off the fiber with cold saline, using a vacuum pump. Then the fiber is transferred to another glass well and approximately two drops of ½% saline red blood cells solution of the same type as the anti-serum is added and this placed in an oven at approximately 52 degrees for ten minutes. Then the sample is taken out of the oven, placed on a mechanical shaker and shook gently for approximately fifteen minutes and allowed to stand for approximately two hours. Then observed through a high powered microscope for agglutination. The results are then recorded.
Q Now these test that determine the blood type, could you possibly tell us what the theory is that works behind this?
A Yes, sir. One can think of dried blood as composed of two portions, the red blood cells and also the antibodies or agglutinates that may still be present. If one can determine the antibodies using the crust test and also the agglutinogens or the type of red blood cells that is present, one knows what the blood type is.
Q I see. Is that the normal sequence of tests that you use?
A Yes, sir.
Q Do you normally use any other test?
A No, sir.
Q Is it possible, using this method, to have a mixed batch of blood, that is to have perhaps two different types of blood present on the same stain and be able to detect this?
A Yes, sir, we surely would detect it, assuming that there was no decomposition of the blood stain.
Q How are these particular exhibits treated with respect to decomposing possibilities?
A The exhibits that were collected in this case?
A Well. If, as I said before, if we perform both the crust test and the absorption elution, we find out if there has been any decomposition since the type of antibodies and the type of agglutinogens or red blood cells are complimentary; that is if you have an A cell then you must have a B antibody or it is type A.
Q Now on a physical level, if these specimens were collected and transferred to the laboratory, how would they be treated to protect them?
A Well, if a stain had been wet at the scene, it was first dried, and then placed in a vial. They are protected from sunlight. They were kept at room temperature.
Q And why these precautions?
A Well, sunlight may tend to decompose the antibodies in the stain.
Q You were protecting against decomposition. Is that it?
Q Now in some of the exhibits which were tested, we find that your report has used the word "indicated." I draw your attention to, for instance, --
COL ROCK: Which exhibit, counselor?
Q -- to for instance, paragraph 13 on page 12 of Government Exhibit 7. You will find the sentence which says, "Further examinations indicated same to be the International Blood Type AB." Would you tell us what this word "indicate" means in this context?
A Well, indicated means that we have found either the agglutinogens or antibodies or the agglutinins, but not both, not so that they'd complement one another, so we can't absolutely say that it is this blood type although we are fairly certain it is.
Q Well, can you give us any idea mathematically what your percentage of certainty is? Is it more than 50%?
A Oh, yes, sir, much more so. We say indicated because there may be possible decomposition. However, in this case since the laboratory collected it, the specimens most likely was not significant decomposition. I would say it is above 90%.
Q I see. I beg the investigating officer's indulgence for one moment.
MR. EISMAN: May I interpose an objection at this point until we clarify this item "indicated." I think that the witness has testified that either the agglutinates or the antibodies would not be present so that a scientific determination could not be made, and in my estimation, that would be at least a 50% change for error if either of these two items were not present. And until we get a clarification from the witness as to how much each of these two items were contained in each of the alleged findings, we won't know whether or not it is 90% or 50% or less, and it would be highly unfair to permit this type of testimony to come in unless we have a direct clarification of each of these two items regarding blood typing.
CPT SOMERS: The government respectfully disagrees with the defense counsel as to its figures. The witness has been offered as an expert, he has given us his opinion as an expert as to the percentage possibility with this word "indicated"; he's told us what it means to him, and he's told us what he thinks the percentage would be, that they are correct. The 50% figure suggested by the defense counsel is one of his own choosing. I do not think he attempts to set himself forth as an expert in this field.
MR. EISMAN: Just a point of clarification at this point. The witness has said either one of the two things missing which he has described as necessary elements of blood typing. Now if it is one or two, I think my figure of 50% could be as accurate as his figure of 90% unless it is clarified.
COL ROCK: I'd like to ask the witness at this time in clarification of this specific point, what percent accuracy do you think that report errs in the work which you have done? You have indicated a figure of 90% assurances, or I believe your words were perhaps over 90%. Do you stick by this figure, or do you think it is closer to 50% accuracy?
WITNESS: I would say the actual report; its accuracy is greater than 99%. If you will notice, in the report it says indicates the presence of Type A or Type O. It is approximately 100% of those two things, one or the other, or it is most likely that it is the first mentioned.
COL ROCK: Well, now let me ask another question for clarification of the point that you made. Suppose that two people have the same type blood and it was in one sample. Could you detect the fact that there was more than one person's blood in the sample through means of your test?
WITNESS: If they had the same International Blood Group Type, no, sir, not very likely.
COL ROCK: When I say the same blood type, this is what I mean, the same International Blood Group Type that we have heard referred to here today.
CPT SOMERS: If I may, sir, I think I can clarify this even more.
COL ROCK: All right, proceed.
Q Let me take one or two steps before I get into this. There are paragraphs in your report such as paragraph two of Government Exhibit 7, which simply says revealed the presence of human blood of a specific type. By percentage now, what percent sure are you when you say that?
A If we say revealed the presence of human blood of International Blood Group Type A, we are approximately 100% sure.
Q Now in excess of the 90% figure that you have given us, this applies to instances where you used the word indicated. Is that correct?
A Yes, sir, it is.
Q I see. Now to deal with this discrepancy. Between what the defense counsel calls a 50% possibility of being correct, in which you give to be in excess of 90%, why do you say where you have indicated that you are in excess of 90% sure? Relate this, if you can, to the likelihood of decomposition and such, factors as this.
A Okay. Well, sir, the crust test we perform, if there is no decomposition, will tell us what blood type we have. It is one method of determining the blood type. The absorption elution test, on the other hand, is an entirely different method, based on a different theory, which will also if there is no decomposition, tells us what type we have. In other words, there is cross-referencing. If we say that it is Type A blood, both tests would have worked and tell us the same answer. If we say indicated, then maybe perhaps because there is not enough sample, one of the two tests does not show up, and agglutinogens or an antibody, and so on this basis since we don't have both tests, we just say it is indicated. However, we are, in our minds, we are reasonably certain that it is the type we listed.
COL ROCK: And by reasonably certain, do you mean 90%?
WITNESS: Yes, sir.
COL ROCK: How rapidly does blood deteriorate -- let's say that it is spotted on a wall for instance -- how rapidly does the blood deteriorate as far as your scientific appraisal of the types of blood?
WITNESS: Assuming we have enough sample to run both tests on it, if -- in this room for instance -- well, mainly we are worried about deterioration of the antibodies, the agglutinogens don't decompose very fast. So in this room it could take several months.
COL ROCK: Well, let us take the specific instance in the MacDonald house where there was some light available.
WITNESS: Well, I don't really believe the light is that critical a factor, since there wasn't really direct sunlight. The shades were drawn.
COL ROCK: What are the factors that affect the deterioration?
WITNESS: Sunlight, heat, maybe bacteria. The chance that it didn't decompose I believe are very small.
COL ROCK: In this instance?
WITNESS: In this instance, yes, sir.
CPT BEALE: Mr. Eisman, I believe, that legally speaking, the Article 32 officer is now satisfied with this witness' answers and therefore your objection which was interposed a while back is now overruled. You may continue.
Questions by CPT SOMERS:
Q I gather from your answer earlier that it took you approximately five days of work in the residence to collect everything that you wanted. Is this correct?
A Yes, sir.
Q Can you give us some idea what you were doing and why it took that long?
A We had to carefully investigate the whole house, not only for blood stains, possible blood stains on the walls, the ceilings, the floors, articles of clothing, items of furniture and everything, but we also had to collect debris, hairs and fibers and so forth. And it took approximately one day per room to this work, say 14 hours a day.
Q Did you exercise care while you were doing this?
A Yes, sir.
MR. EISMAN: Objection. It calls for a conclusion on the part of the witness. You have to ask the witness what he did do.
CPT BEALE: Sustained. Do you want to rephrase your question, counselor?
CPT SOMERS: That's all right. I withdraw the question. Excuse me one moment.
Q When you gather exhibits other than blood stains, for instance in gathering such as a fiber, how was this done?
A It was collected, probably with tweezers, put into a vial and labeled and recorded in my notes.
Q Well, who labeled each exhibit as it was taken?
A I did.
Q Were they labeled as to the location from which they were taken?
A Some were, some weren't. However, a number was assigned to each exhibit and the location, which was also in the notes.
Q And did the notes describe the location?
A Yes, sir.
Q I show you again Government Exhibits 7, 8, and 9. Let me ask you first; are you the only chemist who worked on the blood typing in this case?
A No, sir.
Q How many others worked on this blood typing?
A I believe four others, three or four.
Q Did some of these others have more experience than you?
A Yes, sir.
Q Now with reference to Government Exhibits 7, 8, and 9, did you help to prepare these exhibits?
A The reports, sir?
Q The reports themselves.
A Yes, sir, I did.
Q Now then in rendering of your reports, do they state the conclusions you reached?
A Yes, sir.
Q And are these statements accurate with respect to the conclusions you reached?
A Yes, sir.
MR. EISMAN: Well, I am going to object if this witness is being offered as an expert as far as what other people did. Naturally he can't tell what other people did or what other people found. He can only tell what he did or what he found. Unless the people who actually performed the tests tell us what they did, this witness is not competent to say what occurred in somebody else's laboratory. Therefore I'd object to him testifying as to any other person's conclusions because he would not be competent to do so.
CPT SOMERS: If I may, sir, I am only offering his testimony as to his own conclusions.
CPT BEALE: Can you be more specific in these reports which of these conclusions was Specialist Chamberlain?
CPT SOMERS: We can do that if the investigating officer wishes. It is a long list. This witness is here as one of a class of witnesses who worked on this report. All of the witnesses who could have testified with respect to the blood in this case were not available to be brought here and could not have been brought here to testify for an Article 32. We brought this witness as one of the chemists who worked on these exhibits and who did a great deal of work on these exhibits. They all, I think he will tell us, if he is asked, used the same methods. However, we do not purport to ask this witness whether he saw and can testify to the results of any specific exhibit that he did not personally work on.
MR. EISMAN: As long as he's not being called to testify as to any other person's findings, I have no objections, but we have to get on the record what this witness found, which of the conclusions filed in this report are his so that the investigating officer knows what in fact this person can testify to as his own personal knowledge. Anything else would be something that he could not; it would be purely hearsay.
CPT SOMERS: I'd like to point out at this juncture that it is not unusual but it requires an exception to policy from the highest command, from Continental Army Command to bring this type of witness here for an Article 32 investigation. If we could bring all these witnesses here, we would. This one is here, however, only as a representative of a class of witnesses. He's here to testify as to the tests which are done at the laboratory. He can answer specifically as to accuracy and specifically as to what was done on any given exhibit only to those which he personally did. The rest of the exhibits must stand by itself at this juncture. And I might add that one of the reasons that this man specifically was brought here is that he is one of the chemists who collected this evidence, and therefore would be most relevant and of most interest to the investigating officer.
CPT BEALE: Mr. Eisman, your objection is going to be overruled to the extent that the Article 32 investigating officer is considering this witness for the expertise that he has in explaining to him how these experiments are in fact conducted. He is not considering this witness's testimony for the correctness of the experiments themselves, the results throughout it. He is, in fact, accepting the report as a military document, and that the conclusions drawn therefore are satisfactory to him, and unless you have evidence to the contrary to show that some of these findings in here are not in fact correct, then this report will be accepted as it is.
MR. EISMAN: Well, the problem is that this person, what this particular witness might say indicated means -- of a certain blood type -- might be the same testimony as far as some other expert witness is concerned. His meaning of "indicated" might not be the same percentage, and therefore to have him testify as to what somebody else's impression of that term would be, I think unfair.
CPT SOMERS: I think it's clear to the investigating officer that this is his definition, for what ever weight that may be.
COL ROCK: Yes, I took it in this particular context. However, I would like to ask one additional question of this witness at this point. Specialist Chamberlain, in using words like "indicated," is this standard procedure at the lab?
WITNESS: Yes, sir.
COL ROCK: And to your knowledge is your assessment of 90% considered standard with the use of that word?
WITNESS: 90% isn't standard, however, I'd say it is accurate and I'd say that the other people would agree.
COL ROCK: Continue please.
CPT SOMERS: All right, sir.
Q Now the tests that you have described having done yourself, are these tests standard ones used at the laboratory?
A Yes, sir.
Q Do you know of your own knowledge whether these tests were used by the other people who worked on this report?
A I didn't watch the other people perform every test; however, these are the only tests that we use, and when I did see them working, these were the tests they were using.
Q With respect to the exhibits that you collected, are the descriptions or the locations from which they were taken, which can be found in Government Exhibits 7, 8, and 9, are those descriptions correct?
A Yes, sir.
CPT SOMERS: Your witness.
Questions by MR. EISMAN:
Q Are any of these tests which you used in determining blood types measure the quantity of blood found at a particular area?
A No, sir.
Q In your training, did you learn any specific test to test the quantity of blood, weight or volume or size of blood stain?
A No, sir, no specific test.
Q Can you give us a description of each and every blood stain which you yourself saw and collected? Do you have that there in your notes?
A I can give you an approximate description.
Q Well, can you go ahead and give those descriptions?
A Well, the first sample I collected, Exhibit D-1, was a small drop on the southern radiator, northeast corner of the radiator from the main bedroom.
Q Was it on top, the side, or where was it on that radiator?
A It was on the top, sir.
Q Yes, what next? By the way, before you took these stains or removed them in any way, did you take photographs of them in place?
A Yes, sir, every stain was -- the square was drawn around it with a number, my initials and it was photographed before I touched it.
Q By whom?
A Mr. Harold Page with the Criminal Investigation Laboratory.
Q Do you have those photographs with you?
A I do not have them with me.
MR. EISMAN: Does the prosecutor have those photographs?
CPT SOMERS: I do not.
MR. EISMAN: Can we request of the investigating officer that he order that the laboratory at Fort Gordon produce such photographs so that we may conduct the appropriate examination of this witness?
COL ROCK: I fail to see how these would be used in examining this specific witness. But does counsel intend to use such photos if available?
MR. EISMAN: I intend to question the witness as to the size of these blood stains. I think later on in the case it will become relevant as to certain witness' testimony so far as size of blood stains, whether or not they were inordinate size as to be found in a particular room, or whether they were contamination type blood stains, and therefore unless we had the actual photographs so that the investigating officer could see these blood stains and make his own determination. If the experts cannot say whether or not they were direct blood stains or contamination blood stains, I think that would be the best evidence to present to the investigating officer, not somebody's opinion as to whether or not they were larger than they should have been. That's what is going to come out in this case later, and I think that's one of the reasons Specialist Chamberlain is here today, is lay the foundation for such evidence.
COL ROCK: Government, do you have any comments?
CPT SOMERS: Sir, the location of these blood stains is given, and according to this witness given accurately in the laboratory reports. The size of the blood stains he has not so testified to, and the government does not, at this time, have the pictures to which reference is made although I am sure they must exist somewhere. The government suggests that to go through each picture of each exhibit on each page of these reports would, to say the least, slow down this procedure considerably unreasonably. The government is opposed to that method of proceeding. The government has not at this point put the quantity of the blood stains in issue in any way.
MR. EISMAN: If the government will now say that the quantity of blood stains will not be an issue in this case I will withdraw my request for photographs. But if they are not saying that, and intends it to be made later, at least we should have the opportunity to cross examine the only expert on blood types as to size and quantity of blood found, what he found, and exactly what was found where. But if they are going to say at that point or this point the size of the blood stains or quantity or volume of blood is not an issue in this case, I withdraw the question. But it would be unfair to let this witness go without questioning him as far as size and volume and let somebody else who is not an expert tell us about the size and volume.
CPT SOMERS: The government has no present intention of assuring the defense that the size of the blood stains will not become an issue. However, when they are in issue they will be described or pictures will be shown and conclusions can be drawn there from by the investigating officer himself. The government has no present intentions of using pictures referred to in its case, but certainly does not at this point represent that it never will. It opposes, however, the request of the defense.
MR. EISMAN: The reason we are asking for these photographs is because we feel that these are necessary for the defense of this case. If there is going to be someone else called later to make a description of the blood stains, without having the photographs present so that the investigating officer can see them and make his own conclusions, if there's not going to be another expert as far as blood is concerned, and some layman, so to speak, will make these conclusions, I think it would be highly prejudicial and the defense should at least have those photographs so that they could, first of all, cross-examine this witness who is offered as a blood expert, and secondly, for any other witness who tries to attempt to take the witness stand to assert that blood stains were not of or were of sufficient size or insufficient size to draw conclusions from.
CPT BEALE: Let me ask you this. How is it that this particular witness would be able to elucidate from the meaning of the particular blood stain, of the size, of the type? How can he clarify for this hearing just exactly what they mean?
MR. EISMAN: He was the man who took the stains. He has testified that he was the one who took the particular samples and I couldn't think of anybody better qualified to make the statements. He's the one who initialed the squares that were photographed. He's the one that took them back to the laboratory and tested them. Who else would be better than an alleged expert on blood to testify?
CPT BEALE: But then again, the problem that Colonel Rock and myself, to be able to rule on this thing is, is that how does this matter fit into this case? Colonel Rock is in the dark up here trying to make a determination of whether or not to make the government produce these photographs or not because he can't see right now at this stage how they are relevant or not relevant to his investigation.
MR. EISMAN: The government has put on this portion of its case at this point regarding blood. As I understand, this is the only person they are calling reference blood. This is the only opportunity we will have to cross-examine regarding blood, and therefore at this point if they are going to later attempt to make some type of conclusion from this witness' testimony reference the blood and blood stains, we should at least have an adequate opportunity to examine him and the photographs regarding the objects which he took and have them before the investigating officer so if anybody comes in later to testify as to the size of blood stains, volume of blood or any conclusions like that, he will have an opportunity to present to the investigating officer these photographs, which will speak for themselves, not the conclusion or guesses of some future witness. Since this is the man who took the stains, there will be nobody better qualified to testify as to the size since we do have photographs showing the size. There will be no better evidence than that and I think the best evidence rule should prevail in a ruling. If they are available; if they aren't available, I wouldn't ask for them.
CPT SOMERS: If I may, sir, --
CPT BEALE: Just a second, Captain Somers. Your request for production of these particular pictures at this time is denied. You may proceed.
MR. EISMAN: May we proceed again with the description of the blood stains which --
CPT SOMERS: I believe I interposed an objection to that line of questioning. The blood stains are described, the area from which they came, in the laboratory reports and we've been told by the witness that these blood stains descriptions are accurate so far as he knows insofar as he took them, and we object to the proceeding of going through each and every stain on each and every report, to have a description.
MR. EISMAN: We have already seen, starting off with Exhibit D-1 which the witness has testified to, that the description is not an accurate description in that it does not describe the size of it and where it was located. It merely states a red brown stain from the south radiator in the east bedroom. It is further described from his notes, evidently, which extends upon this statement as to the exact size and where it was found, and I think we are entitled to at least find out where and what sizes these drops were that were found if he has this in his notes. It would be perfect cross-examination of this witness.
CPT BEALE: Captain Somers, will the size and or the location of these particular blood stains, or drops of blood, will these in fact become an issue?
CPT SOMERS: I expect the location of these stains could be an issue, yes, I do. I also expect that with respect to a very few of the stains, the size may become an issue. However, the location insofar as it will become an issue is described in these exhibits.
COL ROCK: What, as an example of that, please?
CPT SOMERS: Of what, sir?
COL ROCK: Of the last one you were just talking about, where it would become an issue. Is it elaborated upon in greater detail where it does become an issue, or may become an issue?
CPT SOMERS: Are you referring to size or location?
COL ROCK: I am referring to both.
CPT SOMERS: With respect to location I believe it is adequately described in this report as to every exhibit.
COL ROCK: This investigating will recess for twenty minutes.
(The hearing recessed at 1620 hours, 13 July 1970.)
(The hearing reopened at 1653 hours, 13 July 1970.)
COL ROCK: The hearing will come to order. Let the record reflect that all parties who were present at the close are in the hearing room with the exception of the witness and Captain Thompson.
Captain Somers, I have considered the defense request for the production of the photographs taken of the various blood stains. Furthermore I have noted your objections both to the production of said documents and to the defense questioning this witness concerning the size, location and quantity of stains. You have indicated that this matter may later become an issue. Because I am not presently aware of all the facts, and because this witness has been provided to us for only a short period of time, it my opinion that at this time you should make me aware of what particular blood stains, fibers, or other evidentiary samples, if any, might later become an issue. Then you could provide the defense with photographs of only these particular items, and I could thereafter benefit from the witness's testimony. By using this method we can conclude the need for the witness and release him in order to prevent unnecessary recall at a later date. Do you have any questions on this ruling?
CPT SOMERS: I think I understand the ruling, sir. I do not believe that I can comply with it in the next five or ten minutes.
COL ROCK: This is understandable. I would suggest in view of the hour, unless counsel for the accused wishes to further question the witness at this time, that we adjourn until in the morning.
MR. EISMAN: I have no objection at this time, sir.
COL ROCK: Is this satisfactory, and I would assume by the morning you could give us some sort of an answer on the availability.
CPT SOMERS: There are two comments I'd like to make, sir. First, I will attempt to delineate any physical exhibits such as those mentioned which may become of greater importance. However, I do not wish either now or tomorrow to bind myself to considering only those, because it is possible that in that period of time I might miss something. Secondly, if the investigating officer will permit it, the first thing in the morning I would like to take Pamela Kalin's testimony so that we may dispose of that and permit her to leave as she is now scheduled to do so on Thursday.
COL ROCK: I think this is appropriate, and I think it further perhaps give you more time to assemble the photographs. I realize that you may not be able to specify exactly, but you will make a reasonable attempt, I am sure, to present us those photographs that you think may be applicable. Does counsel for the defense have any further comments?
MR. EISMAN: I think your ruling is fair and I have no objections to Pamela Kalin being called first thing in the morning. That's all I have to say at this time.
COL ROCK: This hearing will be closed until tomorrow morning at 0830 hours.
(The hearing adjourned at 1657 hours, 13 July 1970.)