3.Fairgrieve Burn-Site Opinion: Expert-Disclosure Objection and Ruling
31 linesMR. FALLON: Your Honor, may counsel and I approach the bench?
THE COURT: Sure.
(Side bar taken.)
THE COURT: Members of the jury, we're going to take a short break at this time. I remind you not to discuss the case during the break. You are excused at this time.
(Jury not present.)
THE COURT: And, Dr. Fairgrieve, I will have you step out in the hallway at this time.
SCOTT FAIRGRIEVE: Okay. Thank you.
THE COURT: Please be seated. I will indicate for the record that Attorney Fallon asked for a side bar and raised an issue which I suggested be raised on the record, outside the presence of the jury. At this time the jury has been excused and the witness is also excused from the courtroom. Mr. Fallon.
MR. FALLON: Yes, thank you, Judge. I just wanted to express concern, I don't know where counsel is going with the rest of this examination on this point. But from my review of the amended disclosure of expert witness, Scott Fairgrieve, the amended disclosure states, at the bottom of page four, most notably the first full sentence on page five, that there would be an opinion expressed that there is no evidence that these cremains were originally burned in the barrel where they were found.
So the testimony, as elicited by Dr. Fairgrieve, it's not the opinion that we were led to believe would be he expressed. And, again, this was one of the reasons we filed our demand for a disclosure -- full disclosure in a report, for fear that such an opinion like this would be expressed, without notice to the State.
THE COURT: Mr. Strang.
MR. STRANG: Yes, and I understand the confusion, which I probably created in the summary here, or maybe here, although I don't think he's offered any opinion that bones were burned in the burn barrel. What this is meant to say and what I will assure counsel and the Court, is that Dr. Fairgrieve is -- is -- I expect him to say that, I have no evidence that allows me to conclude where these bones were burned. I can't -- I can't say they were burned in the burn barrel. I can't say they were burned behind the garage. I can't say they were burned anywhere else. In other words, I can't assign a place, nor can I necessarily rule out possible burn sites.
So I do understand the concern, because the specific sentence says, there is no evidence that these cremains were originally burned in the barrel where they were found. And that is his opinion, in the sense that, I can't say they were burned there, I don't have evidence that the body was burned in the barrel. What I expect him to say is, I -- I can't rule out, or I -- I fail to exclude any possible burn site, we'll just never know, is the bottom line.
MR. FALLON: That's an entirely -- That's an entirely different -- well, not entirely different, but it's clearly a different opinion. He is saying here, they were not burned in the burn barrel. That's what we expected him to say. Now he's saying, I can't rule it out.
MR. STRANG: It doesn't -- it doesn't say that. I mean, I understand the confusion and I --
THE COURT: Well, there is a difference between saying I can't rule out the burn barrel and saying there's no evidence to suggest that they were burned in the burn barrel. Perhaps that's something the State can bring up on cross-examination. Did the -- did the report come from the doctor or --
MR. FALLON: No, it's from counsel, there is no report, that's our problem.
MR. STRANG: This is the disclosure that we filed of potential expert witnesses, is the overall -- the broader opinion here is that he may agree with, challenge, or differ with any of the opinions offered by the State's expert forensic anthropologist and, more particularly, I'm quoting from page three of the disclosure, Dr. Fairgrieve may testify that while it is possible that the cremains found were originally burned in the pit behind Steven Avery's garage, in his opinion it was also possible that they were burned in another location.
He goes on to mention the smelter and the wood furnace and in his opinion it is possible that the cremains were rendered at either of those locations or another undetermined location. And that is the intended scope of the testimony.
THE COURT: Well, taking what you just read, together with what Mr. Fallon just read, I would interpret that to mean they could have been burned in another location besides behind the garage. They could have been burned in the smelter or whatever the other reference was, but I would have interpreted it as excluding the burn barrel.
MR. STRANG: No, he won't say that. He's saying, I can't exclude it, but neither do I have any evidence that they were burned in the burn barrel.
MR. FALLON: Well, I guess I disagree. I think the opinion should be excluded. The language that he read is helpful on the one hand, but not helpful on the other; in so far as we fully expected Dr. Fairgrieve to refute some, none, or all of the opinions expressed in Dr. Eisenberg's report. That's certainly fair game and I don't have a problem with that. But then to try to say he may offer some other opinions about some other stuff, to which we're not privy yet, that creates the whole problem of not having a report in the first place from which to base a cross-examination upon.
So I understand counsel's point, but I don't know how you get around the fact that he's saying, it wasn't in the burn barrel, so that leaves us the burn pit, the smelter, the boiler, or some other place, God knows where. But it certainly doesn't include the barrel.
MR. STRANG: No, what he's saying is, I have no evidence that they were burned in the barrel. I can't rule it out, but I have no evidence that it happened.
THE COURT: All right.
MR. STRANG: And it might be helpful to -- if we could go back with the court reporter and find out just exactly where we were when we stopped.
THE COURT: Before we do that, I'm going to rule as follows: I believe that the information was slightly misleading, but not so much so that I'm going to grant a remedy to prevent this witness from giving the testimony he did; that is, there is not a significant difference between saying there's no evidence to suggest it was burned in the barrel and based on the evidence available, essentially, I have no idea where it was burned.
I understand what you are saying Mr. Fallon, I think there is somewhat of a difference, but I'm going to rule that it's not enough of a difference to impose a sanction on the defense.
MR. FALLON: Very well. Thank you.
MR. STRANG: And I do want to go back so that I -- I really can try to steer away from any problem I created.
THE COURT: All right. Let's go off the record for a couple of minutes before we bring the jury back in.
(Brief recess.)
THE COURT: All right. We'll bring the jury back in at this time.
(Jury present.)
THE COURT: You may be seated. And, Mr. Strang, you may resume.
MR. STRANG: Thank you.