5.Hearing on Scope and Disclosure of Stahlke’s Bloodstain Opinion
27 linesMR. STRANG: Your Honor, this may be a good time to take up a subject out of the jury's presence.
THE COURT: All right. The Court is going to excuse the jury for a few minutes.
(Jury not present.)
THE COURT: Are you asking for the witness to be excused? You can step outside. Mr. Strang.
MR. STRANG: Your Honor, I will tender the Court a copy of the report that we received from Mr. Stahlke and a copy of his resume as well. It's a two page report. Nothing in that report suggests that the State intended to elicit from this proposed expert an opinion tying any particular injury to the blood patterns that he's testifying he observed.
I don't know how he possibly could do that either without knowing personally, A, when this photograph was taken and, B, the likelihood that it was actively bleeding at any relevant time, which I think is probably well beyond his expertise. So, this goes beyond disclosure that the State has provided and gets into something both of which we don't have notice and of which his own expertise or even personal knowledge is questionable.
And, finally, the point is simply that, you could get a cut and may drop -- you may be dripping blood, or you may leave a bloodstain if you brush your cut against something. Again, that's -- that's not a subject requiring expert testimony at all.
THE COURT: Mr. Gahn.
MR. GAHN: Well, your Honor, I think the report speaks for itself. If you look under observations on page one of Mr. Stahlke's report. States that on the second -- beginning with the second sentence, contact transfer stains were present on the driver's seat cushion, the passenger seat cushion, and on the dashboard near the ignition switch.
MR. STRANG: And that's fine, nobody questions his ability to describe what a contact transfer stain or, you know, a passive stain, or swipe, or any other type of pattern looks like. The issue is tying it to any particular source.
MR. GAHN: If I may finish, the next sentence states that these stains are the result of a bloody source coming into direct contact with those surfaces. That's what I asked him in his opinion. Is this cut consistent with the bloody source coming in contact with it. That's all I asked.
MR. STRANG: Not when that photo taken it's not.
THE COURT: Yeah, I think the -- reading the report, the conclusion is that the bloodstains, or at least a couple of them, were consistent with an individual who was actively bleeding. I haven't heard the answer yet, from the witness, so I wasn't sure where you were going. But if the witness was going to say that the particular pattern of the stain near the ignition matched this particular cut, it appears to me that would be going beyond what I see here in the report.
If you want to ask the witness if whoever this is, if this person had been sitting in the vehicle and had that cut at a time when it was actively bleeding, could that have caused the bloodstains, I think that's something that's within his expertise, that is contained -- or that is within the conclusions that he drew in the report. But I think that's about as far as he can go.
THE COURT: And, Mr. Strang, I don't know if you object to that, or if that's inconsistent with what you are saying or not.
MR. STRANG: No, if he is trying to link the blood patterns he saw, to this photograph, we don't have notice of that and he is not qualified to do it. Neither does he have the foundation, since that doesn't appear to be something that's bleeding. And, you know, he has no idea when the photo was taken or when the cut may have been actively bleeding, none that I know of. And that would have been the purpose of notice.
THE COURT: What exactly are you proposing to ask him, Mr. Gahn?
MR. GAHN: Just when I asked him the questions, whether he has an opinion, to a reasonable degree of scientific certainty whether this cut is consistent with being the bloody object that came in contact with the dashboard by the ignition switch. And I can add, if it were actively bleeding, if this cut were actively bleeding, could this be the source, the bloody source, coming in contact with the dashboard.
THE COURT: Mr. Strang.
MR. STRANG: Again, there's just nothing in the report that suggests that this witness was going to try to link a stain to any possible injury on Steven Avery or anyone else. And I -- Again, I don't know how he would possibly do that, other than a hypothetical, if it were actively bleeding. Sure, but he doesn't know. Beyond -- I can't -- What hand is this, this looks to me like a left hand. Is that what that is?
MR. STRANG: Where's the thumb. Maybe if it's being held like this, I suppose if the cuts on the outside of the right finger. Sure looks like a left hand from here. The point is, your Honor, we don't have any foundation for any of this, from this witness let alone notice.
THE COURT: All right. As I think about it, I think I agree with the defense on this one. He can testify -- he's already testified that it came from a cut that was actively bleeding, the jury has already seen this photo. They can determine if it looks like a cut that was at one time actively bleeding.
I just don't think for the witness' level of expertise there is really much he can add to that so I'm going to sustain the defense's objection. Anything else before we bring the jury back in? If not, if someone can bring the witness back in, we'll bring in the jurors.
THE COURT: Mr. Gahn, before they come in, any idea how long your direct is likely to go? Are you hoping to finish it today?
MR. GAHN: Yes. We would also like to -- hopefully we can finish the cross today too because Mr. Stahlke has a appointment tomorrow morning.
MR. STRANG: I don't know -- I don't know where this is --
THE COURT: Well, we'll wait and see.
MR. STRANG: -- this is going, so.
(Jury present.)