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Rodney Oswalt
Preliminary Hearing November 14, 2003
Direct Examination by David Harris HARRIS: Sir, can you tell us what your full name is and spell your last name for the record? OSWALT: Full name is Rodney D. Oswalt. Spelling of the last name is O-S-W-A-L-T. HARRIS: What is your occupation? OSWALT: Criminalist. HARRIS: Who are you employed by? OSWALT: Department of Justice crime lab located in Ripon, California. HARRIS: Could you give the Court briefly your background, education, training and experience in the area of hair comparison? OSWALT: Formal education I have a bachelor's of science and a master's of science. In terms of hair comparisons, most of that training was received post-graduate at the California Criminalistics Institute, which is a training branch of the Department of Justice, California Department of Justice. HARRIS: How long have you been employed with the Department of Justice? OSWALT: Total employment, going on ten years now. HARRIS: And during the time of your employment with the Department of Justice, have you received training specifically in the area of hair comparisons? OSWALT: Yes. HARRIS: And what type of training have you received? OSWALT: There was a one-week class given by Jim Bailey, who works in LA County I believe for the Sheriff's Office, or maybe for the PD, who gave the class. He's been doing hair comparisons for years. He gave the class. It was a 40-hour class. Then following that, where you learn and you have a lot of hands-on instruction, hair comparisons. You go through another three to 400 hours, give or take, of instruction that is -- a lot of that is self -- self-directed back at the lab, and some of that I received from the lab manager, John Yoshida that I work for. Following that, you go through a competency phase where you're given some unknowns and you're asked to do a variety of evaluations and comparisons, and then the results are given to you later. If you do a good job, then you're given the okay to start doing actual case work; if not, you go through remediation training, which I successfully passed without having to go through remediation training. HARRIS: So after you passed this proficiency testing with the Department of Justice, have you been in a sense a certified hair comparison analyst for them? OSWALT: Yes, for approximately five years. I'm the only one who does it at the Ripon lab. I handle most all the hair cases that come through that lab. HARRIS: In the time you've been with the Ripon lab doing this, can you give the Court an estimate of the hair comparisons you've made? OSWALT: Cases or hair comparisons? HARRIS: I'm assuming that there's a difference. OSWALT: Well, within each case, you may do multiple hair comparisons. In terms of cases, I haven't -- I have -- at one time I would keep track of how many I've done, 50, 60, you know, cases, give or take, 10 or 20. Hair comparisons, you could maybe multiply that by maybe three, four, five times. It just varies between each case as to how many actual hair comparisons I've done, but in terms of cases, 50 plus or minus. HARRIS: With that background in mind, in this particular case that we're referring to, did you receive some -- an evidence item from the Modesto Police Department for you to make some type of comparison or analysis of? OSWALT: Yes, I did. JUDGE: Before you go into that, defense wish to voir dire on his qualifications? GERAGOS: I do in just -- if I could have just one moment.
Voir Dire Examination by Mark Geragos GERAGOS: Mr. Oswalt, are you the only person, did you say, who does the hair comparison? OSWALT: The only one who's actually doing hair comparison case work at the Ripon lab. GERAGOS: Okay. And in this case, your -- how many hair comparisons -- you do it microscopically; is that correct? OSWALT: Most of the time, yes. Not all the time. GERAGOS: Okay. Do you perform any other kinds of hair comparisons? OSWALT: Well, you'll always do a visual examination, a visual evaluation. But usually there's a component in that which involves microscopic evaluation, too. GERAGOS: Okay. And how many times would you say you've done that prior to the occasion that you're here to testify about today? OSWALT: Well, let's see, this case, I did in February, this hair comparison. Prior to that, I probably did 40, 45. GERAGOS: Okay. How many times have you testified in court regarding expertise on hair comparisons? OSWALT: Only about four times. GERAGOS: And have you qualified as an expert on those four occasions? OSWALT: Yes, I have. GERAGOS: And in this county? OSWALT: Yes, I have. GERAGOS: All right. No further questions. OSWALT: Well, not all four were in this county. We cover a five-county area. GERAGOS: Okay. I have no further questions. JUDGE: I'll allow him to testify as an expert in the field of hair comparisons.
Direct Examination by David Harris, resumed HARRIS: Mr. Oswalt, I want to specifically direct your attention to an item of evidence that you received from the Modesto Police Department that bore some type of notation of 144 OSWALT: Did you examine that particular hair? OSWALT: There were actually two hair fragments. Yes, I did. GERAGOS: There would be -- JUDGE: Wait a minute. GERAGOS: Subject -- I don't think I need to say it. But all of this testimony is subject to our objection on the chain of custody of the hair, obviously, and the Court will determine that at a later time is my understanding. JUDGE: That's the only item at issue as far as chain of custody is the hair -- GERAGOS: Right. JUDGE: -- on the pliers. Go ahead. HARRIS: HARRIS: I'm sorry. Going back to what your answer was? OSWALT: I think the question you asked was did I evaluate the hair from 144 OSWALT: When I received the sample 144A and opened it, there were two hair fragments that were in the container, and I looked at both of those, yes. HARRIS: Now, you used a different term there, "hair" versus "hair fragments." What does that mean from the scientific point of view? OSWALT: I use that term, "hair" versus "hair fragment," to denote a hair having a root or hair not having a root. If it has a root, I call it a hair. If it does not have a root attached to it, I call it a hair fragment. That's my own note-taking to help me keep clear as to what I'm actually looking at. HARRIS: Okay. If I could have marked as People's next in order three photographs and a blowup of a chart. JUDGE: Is that 134? CLERK: Yes (People's Exhibits 134 through 137 inclusive, were marked fo identification.) CLERK: 134, 135, 136, and 137. HARRIS: HARRIS: Mr. Oswalt, I'm going to start by showing you these photographs that are marked 136, 137, and 138. If you will look at those for a second while I'm taking down these other charts. CLERK: It's 138. OSWALT: I have 134, 135, and 136. HARRIS: HARRIS: Obviously my math skills are lacking today. 134, 135, and 136? OSWALT: Yeah. HARRIS: Do you recognize those? OSWALT: Yes, I do. HARRIS: And can you describe for the Court what those are? OSWALT: Your Honor, have you seen these photographs? JUDGE: They're not in evidence yet, so I'm not looking. OSWALT: Oh, okay. 134 is a photograph that I took when I first opened the evidence envelope that contained the item 144 OSWALT: This is the packaging that originally I saw. This was the little cardboard box that the hair fragments were in. That's 144A. HARRIS: HARRIS: That particular photograph, did you take that photograph? OSWALT: Yes, I did. It's a digital photograph. HARRIS: Does it have some type of notations on it that allow you to recognize those particular items? OSWALT: Yes. On the outside manila envelope, that is the main packaging, it has our case number, it has my initials, it has the date, and it also has the item number. HARRIS: All right. And the next photograph, which is People's Number -- OSWALT: 135. HARRIS: You can just -- OSWALT: It's simply a little closer view of the same picture, but focusing more in on the hairs in the little cardboard box. The hair fragments. Excuse me. HARRIS: All right. And the next photograph? OSWALT: Item 136, what I usually do when I look at hairs to be able to evaluate them under one of the microscopes that we use, which is a top downlooking microscope called a stereomicroscope, is I will usually take the hairs out from the containers; and instead of mounting them on a microscope slide, which a lot of examiners will do, but which tends to not be able to allow you to manipulate the hairs easily, I'll take the hair fragments and put them inside a -- or underneath a plastic sheet protector. Static electricity helps to keep them there and you can look at them pretty easily. So what this photograph is is actually a picture of the sheet protector showing the two hair fragments in the center of the photo. HARRIS: Now, as you go through the process of looking at these two hair fragments that came out of that package, 144, was that in a sealed condition when you received it? OSWALT: Yes, and -- yes. HARRIS: So you open up the sealed package, take it out. Do you document what you do as you go besides just taking the photographs? OSWALT: Right. The first -- that's correct, I do. The first thing I'll do when we get the packaging or the evidence from our own evidence storage area within the lab, is on the first page of notes I'll put again my case, the case number, my initials and the date. I'll put down at the top what I'm doing, which is usually hair evaluation and the method that we use. And then the first thing that I will actually do is show that I've removed the evidence from storage. Then I usually show what the analysis request is, what is being asked of me to do. The third thing that I'll do is then go through and actually document at least in part what's the labeling and the type of packaging that is in front of me. HARRIS: And as you conducted this examination, did you notice anything about, on, or attached to these two particular hair fragments? OSWALT: When I started looking at them and in this photo here, which is the one that -- with the sheet protector that has the hair fragments within the sheet protector, there were two pieces of material attached to the two hair fragments. There was one piece of -- looked like a vegetable or a vegetative material attached to one of the hair fragments; and then the other, the shorter hair fragment, it looked like there was a translucent material at least initially how I may have actually written in my notes, translucent material attached to one of the hair fragments. HARRIS: As you go through the process of examination, do you get down to the microscopic level with the microscope you were mentioning? OSWALT: After you -- after I document the evidence, take it out and put it into a position that I can actually manipulate the hairs, in this case, I'll put them in the sheet protectors. The next thing that I'll do is I'll look at them under a stereomicroscope, which is a low-power microscope. It usually magnifies the items I'm looking at somewhere between 10 and 63 times, at the top-downlooking microscope with the light source actually above the sample. Many people may refer to this as a microscope you look at insects or something like that with. You're not transmitting light up through the sample. You're just looking at it from above. With that type of microscope and with some just general visual observations that we'll do an evaluation of the hairs, what I can see from the hairs on the outside of the hairs, a macroscopic or submicroscopic. In other words, I look at the color, look at the length, the curl, shaft diameter, cross-sectional area, what shape that is. Things you can look at in just a simple magnified state at the outside of the hair. That's the first type of microscope. The next type of microscope, which I may or may not use, but which I did in this case, is a compound comparison microscope. It is actually two microscopes put together with a bridge so you actually have a split image you look at through the ocular pieces -- excuse me -- through the ocular pieces. So I have a split image. It's a higher-power magnification. It goes from 100 to 630 power. You shine light through the bottom and through the sample in this case. When you use a microscope of that type, I do mount the hairs in an immersion oil, which allows me to see through the outer layer of the hair into the center of the hair to look at the microscopic or internal characteristics of the hair. I'll also use that microscope to do a comparison to a known to an unknown, a questioned to a known, or an unknown to a reference. HARRIS: Now in this particular case, it's been stipulated that item 26A, which was a blue/black hairbrush, Laci Peterson's hairbrush, did you receive that hairbrush for a known or reference sample for comparison? OSWALT: Semantics are important here. I never in my report or in the notes said that those hairs were from Laci Peterson. What I did say in doing the comparison is that the hairs, the unknown hairs fell within the range of variation is the term that I use, or were within the range of variation for the sample hairs that came from the blue/black -- blue/brack -- blue or brack -- blue or black hairbrush. So -- HARRIS: Let me just stop you there. I think maybe my statement threw you off. We have a stipulation at this particular point in time that that particular hairbrush is Laci Peterson's hairbrush. OSWALT: Okay. HARRIS: So in terms of just for our discussion and asking questions about that, did you compare the questioned hair or the 144A hair that you've been describing to hairs from that blue/black hairbrush? OSWALT: I did. Both hair fragments -- HARRIS: Okay. OSWALT: -- from 144A. HARRIS: Okay. And after you made the comparisons of the two hair fragments from 144A to the Laci Peterson hairbrush, 26A, did you document this and ultimately write some type of report? OSWALT: I did. HARRIS: And looking over to your right at the chart up there that's marked as People's 137, does that chart represent a blowup of one page of your notes from that report? OSWALT: It's one of the forms that I use. It's the stereomicroscope form that I would use for the low-power magnification evaluation that I mentioned earlier. There's also another form that I use for the higher-power magnification. HARRIS: Does that blowup, does that accurately represent that one page from your report? OSWALT: There may be a little bit cut off on the right side, a couple of letters. But for all intents and purposes, that's accurate. HARRIS: The photographs, are those accurate depictions of the items that you've photographed, shown in the photographs, the hair fragments? OSWALT: The ones I've already mentioned, yes, they are. HARRIS: Can you tell the Court, when you made the comparison of the 144A hair fragments to the Laci Peterson hair in 26A, what you found? OSWALT: I found that both of the hair fragments had characteristics of color, color variation, length, curl, cross-sectional areas, shape, shaft diameter, and internal microscopic characteristics, which are another set of characteristics that I won't necessarily bore you with the terms of. All of those characteristics, those constellation of characteristics fell within the range of variation of the characteristics found on the hairs that came from the blue/black hairbrush. I got it out. HARRIS: Now, when you say within that range of variation, with a microscopic examination of a questioned hair to a known hair, are you able to scientifically say this is an examine match? OSWALT: I would -- I have not said that yet, and I don't know if many hair examiners would be able to say that, unless there's some very, very unique characteristics and a compounding amount of those characteristics that would allow somebody to make that conclusion. I wouldn't, and I didn't in this case. HARRIS: Is it fair to say that hairs -- it has -- let me try this again. If it has these range matching, range of variations within that, you can say it's not excluded? OSWALT: You may need to repeat that question. HARRIS: Okay. If you compare hairs, one hair to another hair, can you exclude hairs more easily than you can include them? OSWALT: That's probably the strongest statement that somebody could make doing a hair evaluation is to exclude somebody. HARRIS: All right. OSWALT: The next strongest would be to say that this hair could have been donated by an individual. That would be my next strongest statement I could make. HARRIS: Now, in this particular case, in your comparison, did you exclude this questioned hair, the 144A hair, from the 26A hairs? OSWALT: Both hair fragments in 144A I said could have been donate -- what I remember -- what I said was the two hair fragments of 144A and at least a portion of the hairs from the blue and black hairbrush could have been donated by the same person. HARRIS: We want to take you through this, how you get to the process of that ultimate conclusion that you reach. Looking at your chart, can you explain to the Court what it is you're looking at and talking about as you go through and analyze these hairs, hair fragments? OSWALT: Well, the characteristics for doing a stereoscopic or the low-powered magnification evaluation are along the left side of the form. The items that I'm looking at are across the top, and it's essentially a matrix that you're forming here with my notations and observations. So you start with the source where they came from, at least what you believe to be the source. You start with the general color of the hair, the hair fragment. Then you go down and you just look at the curl, whether it's no curl, it's a straight hair, may have moderate curl or very curly or peppercorn hair where it's tightly curled. The diameter, you know, how thick the hair is. Color, the length, you take -- I usually almost say approximate. The hair when you're trying to measure the length you may get within an eighth or a sixteenth of an inch so I usually say approximately. Color variation. Most hairs, if people just look around the room here will notice that everybody's hair is a little bit different, from the top, to the sides, to the back of their hair; and in my case, you've got to really look close, but it's there. So you're going to see color variation from the root of the hair out to the end of the hair. And the root of the hair I usually refer to as the proximal end, closest to, and that will come up in some of the notations I make. The distal end is the tip. So if you go from the root to the tip, whether you artificially treat your hair or you may have gray hair as you age, or just sun, sun exposure, you're going to get some variation in the hair color. So from proximal, medial and distal, that's the P, M and D. That's what it stands for. Proximal, that's the closest to the root. Medial, middle of the shaft. Distal, towards the end. Buckling. Buckling is where the hair shaft is actually bent and twisted at the same time. Usually you see that in pubic hair samples. It's not real common to see that in head hair or other hair that may come from other parts of the body. Indicated body area. The reason we say "indicated" is because when you get a suspected or -- excuse me -- an evidence hair, an unknown hair, what the hair examiner will look at are all the characteristics of that sample to try to determine where it may have come from, if it's not a referenced sample. Cross-sectional area. Is it round? Is it oval? Is it flat? Is it ribbon-like? And then you look at the ends of the hairs or the hair fragments. Does it have a root? What kind of a root is it? Is it a living root that was maybe forcibly removed from the scalp? Was it a root that was in a resting or senescence phase where it was getting ready to fall out? Or did it have a root at all? Was it broken, cut? You look at the other end of the hair, the tip end. Was it tapered? Was it cut, mashed? In this case the two ends were mashed on the hair fragments or splayed. I may use the term "splayed," where you take something that's round and you kind of squeeze it. It will flatten out. You look at other types of damage. You may have insect damage, lice may be on there chewing away at the hair. You may have bacterial degradation from hairs that came from a body. And then you look for trace, which are other items which may be on the hair. I already noted, you asked the question, did I find something in this case? Yes. On both hair fragments I found two items, two pieces of material that were attached or accreted. I may have used the term "accreted" on that hair fragment. One was a piece of plant material and the other is still -- we're still trying to figure out what that may be. In item 144A, the two hair fragments, I -- they are the two columns on the left side there, I went through and looked at them individually. HARRIS: Okay. Let me stop you there for a second. OSWALT: Yes. HARRIS: When you do this examination, did you assign of these two hair fragments just somewhat a number or some type of way to differentiate the two of them? OSWALT: You know, I usually do that in hair cases and I didn't do that in this case, other than at the top I called the first one fragment 1, and I called the other one fragment 2 of 2. HARRIS: And when you -- again, you just assigned this for some type of tracking purpose or to be able to distinguish the two? OSWALT: Yes, because later on those hairs may be used for other analysis, so it can become important to do that. Some hair examiners may not do that. I usually try to, unless the number of unknown sample -- unknown items, hairs become so messy it just becomes kind of foolish to do that. It just depends on the situation. HARRIS: In this case you just had the two hair fragments? OSWALT: That's correct. HARRIS: Did you measure them as part of your analysis? OSWALT: Yes. Length is one of the characteristics you usually always try to do. HARRIS: Now, starting with fragment 1, what was the measurement that you came up with for fragment 1? OSWALT: Fragment 1 is in the far left column. It was approximately four and three-eighths inches long. HARRIS: Did you measure fragment 2? OSWALT: I did. Its length was approximately one and five-eighths inches long. HARRIS: So grand total that's about six inches combined? OSWALT: If you add the two up, yes, that would be approximately six inches. HARRIS: Now, you indicated that you also look at the ends, and I want to go through this. Going down your chart there for fragment number 1, did you make notations about how the proximal end of that particular fragment looked? OSWALT: Yes. For fragment 1, the end that's closest to the root, it looks -- it had the appearances of being stairstepped at the end of the hair, which to me indicates that it was either broken or torn, possibly cut, but it would have to be a very dull blade that was used to make that kind of a cut. Usually you see those kind of ends when it's been torn or broken. HARRIS: Now, you were saying that proximal is closest to the root. You've already told us that neither of these fragments had roots. How can you tell which end is where the root is supposed to be? OSWALT: Two ways and it's relatively simple. You can look at the taper of the hair shaft and determine that way, but a better way is to look at the cuticle scales, they're called, which is the outer covering of a hair shaft. The cuticle scales look like petals on a flower, and the tips of those scales always point towards the tip or the distal end. So if you know which way, you know, the tips are pointing of those scales, overlapping scales of human hair, then you know which way proximal and which way distal is. You can sometimes see that under the stereomicroscope and most of the time, if not all the time, you can see that under the compound comparison scope, which is a higher-powered microscope. HARRIS: So in this particular case, the proximal end, the one that would be closest to the head or where the root would be at is what you've just described as that stairstep? OSWALT: That's correct. HARRIS: What's the other end of the hair, the distal end? OSWALT: The distal end on hair fragment 1 of 144A, I said it appears mashed, splayed and frayed. HARRIS: What does that mean? OSWALT: It's as if you took something that's round and just squeezed it under pressure and kind of splayed or mashed out that end. It kind of goes from being round to be being like this where the fingers or the hair shaft itself actually -- the tissue actually just gets forced apart. HARRIS: And for the record, while you were describing that, you were using your hand to kind of demonstrate going from a closed hand with the fingers out to opening the fingers? OSWALT: Well, that's my hair shaft where the fingers are really tightly closed together. Or if you take my handy dandy little pencil you can take -- let's say the pencil would be, let's say, the shaft of the hair and you take this end or somewhere in the middle, for example, and this would be the area that would get splayed or mashed in this case, and that part just gets pushed out almost more two dimensionally than it is three dimensional. It gets kind of mashed and flattened. In the process, the tissue spreads. HARRIS: Going to fragment number 2, what was the proximal end of that particular hair fragment? OSWALT: It also appeared mashed, splayed, frayed, similar in the general type of damage as the distal end of fragment 1. HARRIS: And what was the distal end or what was the condition of the distal end of fragment 2? OSWALT: It appeared to be a clean cut, more of a -- at a 90-degree, give or take, slightly rounded at the edges, but appeared to be cleanly cut. HARRIS: The examination that you performed on this particular hair fragments from 144A, what date did that occur? OSWALT: It was in February of this year. The exact dates -- the examination probably, if I remember correctly, ran the course of several days. I'd have to look at the notes. If you'd like me to do that, I could refer to my notes. HARRIS: Just having you look to your right at the chart, does that give you an approximate date? OSWALT: Oh, yes. In the upper right-hand corner, it shows February 21st of this year. HARRIS: Okay. And that would be when you did this stereoscopic examination? OSWALT: That's correct. That's when I began, it would be the 21st of February. HARRIS: All right. The -- you were describing for us that the distal end of fragment 1 and the proximal end of fragment 2 seemed to have the same characteristics, and you described for us earlier about applying force to this pencil and causing a mash. If that particular hair had been in the teeth of a pair of pliers, would it produce that type of damage? OSWALT: That's entirely possible. I've done just simple experiments at the lab where I've taken a pair of pliers, needle-nose, just regular pliers you'd use around the home with different types of grooves in the jaws to see if I could recreate that type of damage that I was looking at on hairs when I was going through training, and you could reproduce that type of general mechanical -- I refer to it as mechanical and physical damage. So that's entirely possible for that to occur that way. HARRIS: If a hair is damaged by that mechanical process, can it break or come apart? OSWALT: Certainly. HARRIS: After you were done with all of your examination here of these two hair fragments, did you do something with the hairs? OSWALT: Repackaged them. Once I was done with the examination, both the stereo microscopic, visual, compound comparison, I would put them -- I put them back into the packaging that they came from, and put them back into lab evidence storage. HARRIS: Do you seal them up or take any precautions like that? OSWALT: Yes. For the two hair fragments, I put them back into the little white cardboard box that they originally came in. I believe I taped the box itself, added my initials and date to it as well as the case number. Put the white box back into the manila envelope, tape sealed it, added my initials and date to the tape seal; and then that along with the other evidence, which would have been the blue and black hairbrush and the other hairbrush I looked at also, I did the similar process of repackaging and turned the evidence back into lab storage. HARRIS: As you completed your report or in your report, did you make some type of notation about this hair and mitochondrial DNA? OSWALT: Yes. In the summary of the report I said mitochondrial DNA could be performed to better characterize this hair. And that actually had come as a result of talking to some people on another hair case, actually, that could have helped to better characterize or exclude who the hairs may have come from, been donated by. HARRIS: Now, moving forward in time from February when this examination was performed, were you contacted or were you in contact with the FBI about submitting those particular hairs to them for mitochondrial DNA test? OSWALT: I never talked to anybody at the FBI myself. Our lab supervisors, managers and some of the other criminalists that I work with were; and I was asked to help assist in getting the samples that they wanted ready for transport to them. HARRIS: Were you asked to do something with those two hair fragments, 144A? OSWALT: Yes. They wanted them to be repackaged for proper shipment to the FBI so they could perform mitochondrial DNA analysis. HARRIS: Did you do that? OSWALT: Yes, I did. In June of this year, about the middle of June, I took the evidence out of storage, reopened the lab -- reopened the packaging and took the two hair fragments out of the cardboard box and put them into a -- what I called a glassine paper bindle, which is a folded piece of paper that looks like it has a very fine wax coating to it. Folded it back up. That's normally how hair samples are usually taken and preserved, not putting them into plastic or anything, which could degrade the sample. And then put that into a manila envelope, sealed that up, and then put proper case numbers, initials and dates and had that ready for submittal to the FBI. HARRIS: Let me back up for a second. Back in June when you were doing this, and you go back and retrieve what you had sealed, 144A fragments that were in there, when you opened it up, was it still sealed? OSWALT: Yes, it was. HARRIS: I'd like to have marked as next in order. CLERK: 138 (People's Exhibit 138 was marked fo identification.) HARRIS: HARRIS: I'd like to show you what's been marked as number 138. Ask if you'd look at that and tell us if you recognize it. OSWALT: It's a photo that I took. I recognize it. HARRIS: What is that photograph of? OSWALT: It's a photograph of the glassine paper bindle which is located in the left middle part of the photograph, and to the right of it is the small manila envelope that the glassine bindle was placed into after the photograph was taken. The manila envelope was then sealed with tape and initials put -- initials and date put on the tape seal. At the base of it is just something that we use for scale when we usually take photographs of this type. HARRIS: Does it indicate some type of reason for this photograph being taken? OSWALT: On the scale there's some wording that I put on there, says, "repackaging of item 144A, hair fragments." HARRIS: And when you finished with the photograph, you put it in that envelope, you sealed it, and it ultimately went off to the FBI? OSWALT: It, I believe, went back into storage, our storage for a short time, and then it was retrieved by another criminalist in our laboratory, who used -- who took this item along with some other items and sent those to the FBI. HARRIS: And the storage facility at the Department of Justice, is that a secured storage facility? OSWALT: Yes. Most all the areas in the building, at least one or more doors will be card-locked and then most of us that work in the lab don't even have access to the area on a normal basis where the lab evidence is stored, and that's -- we have for evidence storage at our lab, we have a walk-in refrigerator/freezer and then some other areas that don't require freezing or cold storage of the evidence. This evidence was in freezer storage. HARRIS: So the items, the two hair fragments depicted that came from 144A, depicted in photographs 134, 135, and 136, are those the same hair fragments that you packaged in that bindle in the last photograph that was submitted to the FBI? OSWALT: The hair fragments are, minus the material that I took off of the hair fragments, and they were put into separate bindles. HARRIS: That's the plant material you were talking about? OSWALT: Piece of plant material and then the other translucent, smaller piece of material that came off the shorter hair fragment, those two pieces, those two items were actually removed and placed them into other smaller bindles for later evaluation, if need be. HARRIS: People have no further questions.
Cross Examination by Mark Geragos GERAGOS: May I inquire? JUDGE: (Affirmative nod.) GERAGOS: Good morning. OSWALT: Good morning. GERAGOS: The examination that you did, did they send you the two hair fragments that were marked as 144A separate and apart from the item that was marked as 144? OSWALT: I never saw 144. GERAGOS: You know what 144 is, I take it? OSWALT: Believe it to be a pair of pliers. GERAGOS: Right. OSWALT: Needle-nose pliers. GERAGOS: And is it your understanding that that needle-nose pliers is somehow connected or supposed to be connected to the hair fragment? OSWALT: The outside packaging of 144A said "hair from pliers." GERAGOS: So that was a pretty good indication at that point? Did you -- OSWALT: I would say so. GERAGOS: Did you see a report that -- you know who Sarah Yoshida is? OSWALT: I work with Sarah. GERAGOS: Okay. And Sarah did a report on 144. Are you aware of that? OSWALT: She may have done more than one report on 144, but I am aware. GERAGOS: Okay. Let me show you Bates number stamp 3742 and 3743. I'm going to show you. Is this one of the reports prepared by Sarah Yoshida about the pliers and I think also -- pliers and wire cutters? OSWALT: It has her signature. GERAGOS: Okay. OSWALT: I think I may have read this one time, so I don't have great knowledge about what was done here. GERAGOS: Okay. The -- was it your understanding when you read this that the -- both the pliers and the wire cutters were both examined by Sarah Yoshida? OSWALT: I believe they were. GERAGOS: Okay. And that it was her conclusion that the rust was severe enough to affect manipulation of the tools so that there was no recent use of either tools? OSWALT: I don't recall what she actually concluded about that or what she put in the report. GERAGOS: Let me see if this refreshes your recollection. OSWALT: (Witness reading.) Okay. GERAGOS: Does that refresh your recollection? OSWALT: Well, I read it. I didn't do the evaluation, but I saw what she wrote. GERAGOS: She wrote that there was no indication that the wire cutters or pliers had been used recently; isn't that correct? OSWALT: That's what I just read. GERAGOS: Okay. She also indicated that the rust on the tools covered their cutting edges, and if they had been used recently, the cutting edges would show a clearing in the rust where the edges contacted the wire; isn't that correct? OSWALT: That's correct. GERAGOS: Okay. No clearings or destructions in the rust were observed on either of the tools, and that's why she concluded they had not been used recently because they were severely rusted; isn't that correct? OSWALT: That's correct. GERAGOS: Okay. Now, when you received these two items -- I think you've got a picture there of how the package was labeled. OSWALT: What I have here is one side of the manila envelope that I took a picture of. GERAGOS: Okay. And what is the label that's on there? How does it read? OSWALT: On the one side, which is the back side of the manila envelope where the clasp is at, it has some initials and dates over some of the tape seal at the top, and then it has what I placed on the manila envelope, which is our case number, my initials, date and the item number. GERAGOS: Okay. And then is there something that indicates what's inside on either of those pictures? OSWALT: On the other side of the manila envelope, which I wrote in my notes, it said "hair from pliers." GERAGOS: Okay. Right here. Is that -- looking at 138, "hair from pliers"? OSWALT: This is a different manila envelope. That's one that I actually made up ready for submittal to the FBI. GERAGOS: Okay. Did the two -- did you get any kind of a report? Did anybody give you any reports prior to you doing this examination? OSWALT: We received with the evidence what's called a BFS1, which is our chain of custody form, which has information about the what, when, where, how, and who has handled the evidence prior to our receiving it, and I -- and it also itemizes what that evidence is, too. GERAGOS: Okay. Do you have that with you? OSWALT: No, I don't. GERAGOS: Okay. Do you know if anywhere on that report it was told to you or indicated to you that the fragments 1 and 2 were, in fact, at one time the same hair? Anybody tell you that? OSWALT: On a report, not to my knowledge, no. GERAGOS: Anybody tell you prior to -- well, you did this examination sometime in January, and the date that's on there is February 21st. OSWALT: Uh-huh. GERAGOS: Prior to February 21st, did anybody say, hey, originally this was one hair and then we opened it up two months later and it was two hairs? Anybody tell you that? OSWALT: Not prior to my evaluation. That's correct. GERAGOS: Okay. OSWALT: Don't recall. GERAGOS: When you did the evaluation -- and I've got a smaller copy of your chart that's up there -- you compared hair fragment 1, hair fragment 2; is that correct? OSWALT: I compared -- I evaluated the characteristics of the two hair fragments. GERAGOS: Okay. OSWALT: And I compared those two to the hairs that came from two brushes. GERAGOS: Okay. Well, you did compare one against two in those columns because there's references between them, aren't there, comparing them? The first -- OSWALT: That's just listing the characteristics of the hair. GERAGOS: Okay. Well, if we go through that, for instance, under curl -- OSWALT: Uh-huh. GERAGOS: -- for hair fragment 1, it says "mild to none"; is that correct? OSWALT: That's correct. GERAGOS: And for hair fragment 2, it says "mild"? OSWALT: That's correct. GERAGOS: Right? OSWALT: Yes. GERAGOS: And then you've got hair fragment 1, where there's in parenthesis a "P." What's that, the P? OSWALT: The hair fragment 1. Where are you at now? GERAGOS: Where it says "color variation" and a "P" in parenthesis. OSWALT: That's written on the form, part of the form itself. That stands for proximal. GERAGOS: Okay. The proximal portion, the part that's closest to the head? OSWALT: Closest to the root, closest to the head in this case, yes. GERAGOS: And you wrote for hair fragment 1 it was brown; is that correct? OSWALT: B-R-N stands for brown in my -- GERAGOS: Hair fragment 2, what did you put? OSWALT: For hair fragment 2, for color variation, proximal? GERAGOS: Yeah. OSWALT: I said brown and then in parenthesis I said darker than fragment 1. GERAGOS: Okay. So it appeared to you that item 144A fragment 2 was darker than the -- I guess the shorter piece was darker than the longer piece; is that correct? Isn't that what you wrote? OSWALT: Yes. GERAGOS: Okay. Then you've got the next color variation site is an "M." What does that stand for? OSWALT: Medial. Medial or middle. GERAGOS: How about middle? OSWALT: Sounds good to me. GERAGOS: Okay. Now, you also put that the hair fragment 2 was darker on the medium part of that hair fragment, than number 1; isn't that correct? OSWALT: Yes, that's correct. GERAGOS: And you also put that the medium part of number one, the longer piece was from brown to light brown; isn't that correct? OSWALT: You bet. GERAGOS: Okay. Then you've got the "D." And what does that stand for? OSWALT: Distal. GERAGOS: And that's the most distant from the head; is that correct? OSWALT: Yes. GERAGOS: Okay. And you've got that as -- as you've noted hair fragment 1 that it's light brown; isn't that correct? OSWALT: That's correct. GERAGOS: Once again for hair fragment 2, you show it as being brown and darker than fragment 1; isn't that correct? OSWALT: That's correct. GERAGOS: Now, if fragment -- let me -- you would describe to Mr. Harris, if there's a way to look at the hair, that you can take a look at what you call these cuticles that look like petals on the surface; is that correct? OSWALT: Cuticle scales. GERAGOS: Cuticle scales. By looking at the cuticle scales, you can tell which part of the hair is closer to the head and which part is farther away; is that correct? OSWALT: Also by taper, too. GERAGOS: Okay. "Taper" meaning if it's wider at the bottom and then it tapers towards the end? OSWALT: Especially for head hair, you'll see a gradual taper. GERAGOS: Okay. In this case, you were examining both hairs and you were able to determine -- OSWALT: Hair fragments. GERAGOS: Hair fragments, right, because a hair has roots. Hair fragments, you were looking at them and you could tell which part was closest to the head, which part was farthest away; right? OSWALT: Yes. GERAGOS: And as you're going from the part that's closest to the head on fragment 1, the hair got lighter, from darker to lighter; is that correct? OSWALT: That's correct. GERAGOS: And on fragment 2, it stayed the same color. It was brown all the way through and it was darker than fragment 1 at all three stages; isn't that correct? OSWALT: That's correct. GERAGOS: There was no gradual getting of lighter, if you would, if you laid these two hair fragments next to each other; is that correct? OSWALT: With respect to the two hair fragments, that's correct. GERAGOS: With respect to the two hair fragments. Now, you also noted various other kinds of drawings, if you will, on that chart. JUDGE: You're going to be a while, aren't you? GERAGOS: I'm going to be a while. JUDGE: Let's take our lunch break here. GERAGOS: Okay. JUDGE: Be back at 1:30. (Noon recess at 12:03 p.m.) Friday, November 14, 20 1:30 p.m. JUDGE: Record show everyone is present except for Mr. McAllister. You may proceed, Mr. Geragos. GERAGOS: Thank you. GERAGOS: When we left before break, I was asking you about some of the entries in your chart there, and I believe that you indicated that at the PMD, I'll just use it as proximal, medial and distal points, for fragment 1 and fragment 2, that you were able to distinguish a color difference at all three points between those two fragments, is that correct? OSWALT: Correct. GERAGOS: And the color difference that you noted for fragment 1 was from the prox -- what do you call it? OSWALT: You just said it. Proximal. GERAGOS: Proximal. From the proximal end to the distal end, it was from brown to light brown, as I guess kind of a spectrum, was moving lighter in color as you went farther away from the proximal? OSWALT: As you progressed, it got lighter. GERAGOS: As you progressed, it got lighter. And that's on fragment 1. Fragment 2 stayed -- at all points was considerably darker than -- or at least noticeably darker, and you made a note of that at all three points, than fragment 1; is that correct? OSWALT: Yeah, I didn't say considerably, but I did say it was darker. GERAGOS: Okay. It was noticeable, noticeably darker? OSWALT: Yes. GERAGOS: Okay. Now, the -- you have some other entries here. Let's see. The ends, when it says P and D -- and I assume that's proximal and distal again? OSWALT: Yes. That's correct. GERAGOS: Okay. Now, the proximal end of fragment 1, you said, is a jagged cut or torn, comma, broken; is that correct? OSWALT: Yes. GERAGOS: Now, there's a drawing there, what looks like a drawing. Is that your representation of what the end of the hair looked like? OSWALT: Gross representation. GERAGOS: Okay. Then there's -- on the distal end, you've got that appears mashed, splayed and frayed, and then there's some lines there. Is that, again, your drawing of how it looked? OSWALT: It's my poor attempt at that, yes. GERAGOS: Okay. Now, the -- looks like on fragment 2 the proximal end has mashed, splayed or frayed; is that correct? OSWALT: Yes. GERAGOS: And the distal end is cleanly cut, is that what you have? OSWALT: That's what I put down. GERAGOS: Okay. Now, if I were -- use the opposite side of this. You had the two hair fragments. The first hair fragment, you said, is about four and three-eighths inches; is that correct? OSWALT: Yes. GERAGOS: And is it fair to say that the -- towards the proximal end it would tape -- I mean, obviously, this is a gross exaggeration, but that it would get wider towards the proximal end? OSWALT: In -- yeah, in a lot of cases it will. Sometimes as the age -- as the hair ages a little bit, the shaft will neck down or get -- get a little bit narrower closer to -- GERAGOS: Okay. In this case, did you see -- did it do that, or was it more like this? OSWALT: I didn't write that in my notes, so I -- I don't know if it did that or not. GERAGOS: Okay. Then you've got the jagged cut or torn or broken, and you did basically, if I could do it on the side, something like that (indicates)? Is that a fair approximation of what you did? OSWALT: (Nods head.) GERAGOS: Then this end here -- OSWALT: You're a pretty good artist. GERAGOS: Don't bet on it. Then the distal end, you had -- let me ask you. Which was the actual end, this side or this side (indicates)? OSWALT: That would be the end there (indicates). GERAGOS: The end's there. So it came -- is it fair to say it came together like this and then out like that to some degree (indicates)? OSWALT: No, the diameter of the hair would have remained -- GERAGOS: About the same? OSWALT: -- about the same until it was splayed, until you actually -- side of the tissues start to move apart. GERAGOS: Go like that (indicates)? OSWALT: Yeah. GERAGOS: More like that? OSWALT: More necking down or the narrowing that you have there, I don't recall seeing that. GERAGOS: Okay. So more like this, if you will (indicates)? OSWALT: The splay, the tissue, as it spreads, was longer. The length of that splay or damage was longer than what's shown there. GERAGOS: Like this (indicates)? JUDGE: Might be simpler just to have him draw it. GERAGOS: I'll have you draw it. I was taking him at his word about his drawing ability. OSWALT: Is this going to reach? Well, it's not to scale. And those things in there aren't to scale either. But the splay -- when you look at later photographs that I took when I was doing the repackaging, would probably be a better example of what it looked like. But the splay would have been something like that, and came down, and then you would have had the shaft continue on. So in this area here, which, in relative terms, would have been maybe, oh, several -- I don't know how many millimeters. But this length of the splay or the mashing was not real short, it was fairly long -- GERAGOS: Long -- OSWALT: -- in terms of the amount of damage at the end of the hair. GERAGOS: Okay. Then if you were to draw the one -- and this is the -- this is the one that you said was four and three-eighths? OSWALT: Yes. GERAGOS: Then there was a one and five-eighths? OSWALT: One and three-eighths. GERAGOS: One and three-eighths? HARRIS: For the record, I don't know if this is ultimately going to be marked, but what's up there at this point in time, the drawing to the left would be Counsel's, and the one to the right would be the witness'. JUDGE: So noted. Like to have it marked CC? GERAGOS: CC or -- JUDGE: Right. GERAGOS: Okay. Then the one in five-eighths length, did you draw the way that -- OSWALT: You're right, one and five-eighths. GERAGOS: One and five-eighths? OSWALT: This one here, it looks like the damage was even a little bit longer, perhaps, than this one here, but just -- if I use the hair shaft going -- or show the hair shaft going this way, it would have had some damage along in here where you see some crushing or mashing, and it goes a little bit longer, some more crushing and mashing, and you see it kind of taper out and do something like that at the end of the hair (indicates). GERAGOS: You just want to put an RO there for you? OSWALT: Sure. GERAGOS: Thank you. Now, the -- you did those examine -- you came to that, I guess, conclusion or that observation by looking at the hair through magnification? OSWALT: Yes. GERAGOS: Or a ser -- and you did it through a series of different magnifications; isn't that correct? OSWALT: Yes. GERAGOS: Okay. Then, once again, on the -- and, I'm sorry, I covered it up. It was on the opposite side. There's a spot on your form that says trace. Do you remember that? OSWALT: Towards the bottom? GERAGOS: Yeah. OSWALT: Yes. GERAGOS: Now, on the -- there's three different boxes there under trace, and in the last -- the third box down, you have for fragment 2 that the color was darker than fragment 1; is that correct? OSWALT: Yes. GERAGOS: Okay. Now, approximately -- I know we drew up on the CC the lengths of these two hairs, obviously grossly exaggerated from their actual size, but did you make some kind of a measurement as to how long the damage was? OSWALT: No. GERAGOS: And did you ever compare the two ends of the hair to one another? Did you take hair fragment 1, for instance, and take the mashed or splayed end and compare that with hair fragment 2 and the -- called it, I think, a torn end on that? I take that back. You called the one end of fragment 1, jagged cut or torn, broken; is that correct? OSWALT: Proximal end. GERAGOS: Right, in the proximal end. And then you said that the proximal end of hair fragment 2 appeared mashed, splayed or frayed. Did you ever put those two together, compare them? OSWALT: So take the proximal end of hair fragment 1 -- GERAGOS: Right. OSWALT: -- and take the proximal end of hair fragment 2? GERAGOS: Or take the pro -- I'll give you -- or take the proximal end of hair fragment 2 and compare it to the distal end of hair fragment 1. OSWALT: I only noted what I saw. In terms of comparing, did I try to overlay them? Did -- I don't know what you're asking. GERAGOS: Well, let me just give you a quote from the District Attorney's motion, okay, on the chain of custody. And I'm pointing to page 15 on the motion to exclude of their motion, line 15. It says, "The damaged ends appeared," quote, "mashed, splayed and frayed and appeared to match each other, meaning that the hair broke apart in the package." Did you ever come to that conclusion? OSWALT: That's not something that I wrote in my report. And I don't have that in my notes either. GERAGOS: The hair fragment 2 also has some different -- you've identified it as thinking that it was head hair; is that correct? OSWALT: It indicated as such. GERAGOS: Okay. Same with hair fragment 1? OSWALT: Yes. GERAGOS: Okay. Now, you classified on the top category hair fragment 1 as brown, slash, light brown; is that correct? OSWALT: Yes. GERAGOS: And you classified -- and I assume this is overall what you're doing? OSWALT: General color of the hair fragment. GERAGOS: So the general color of hair fragment 1 was brown, slash, light brown, the general color of fragment 2 was just brown; is that correct? OSWALT: That's correct. GERAGOS: Okay. Now, you then did some further comparisons with -- I guess the next one over is, what, 26A and B? OSWALT: The third column is 26 OSWALT: The column to the far right is 26B. GERAGOS: Okay. Now, when you package these up and send it to the FBI, did you package up both hairs -- fragments? Excuse me. OSWALT: Of what sample? GERAGOS: Of either fragment 1 or fragment 2. Did you package them together? OSWALT: Yes, I put them together. Of item 144A, is that what you're asking? GERAGOS: Of item one -- yes, of 144A. OSWALT: Yes, I did. GERAGOS: So they were repackaged up together to send to the FBI? OSWALT: That's correct. GERAGOS: Okay. Do you know as you sit here today whether the FBI tested hair fragment 1 or hair fragment 2? OSWALT: In reading the report, I can't recall it, which one they may have tested. I think they tested the longest one, and they called it Q1.1, I believe. GERAGOS: Okay. But you're not sure as you sit here today? OSWALT: I'd have to reread the report, and I only read it once, I believe. GERAGOS: Okay. Now, did you also put that hair fragment 2 was cleanly cut at the distal end? OSWALT: Yes. GERAGOS: Okay. And that the -- it appeared to be -- you said that there was a little piece of plant material, is that correct, that was taken off of hair fragment 1? OSWALT: Yes. GERAGOS: And is it fair to say that when you tried to -- that you contacted somebody by the name of Dr. Frederick, is it, Hrusa? OSWALT: Yes. I've worked with him before. GERAGOS: Okay. And he identified that as a leaf blade tip of an unidentified species of grass? OSWALT: He later went on to say it was one of the -- within one of the families that's referred to as annual bluegrass. GERAGOS: Is that something you'd find at a golf course? OSWALT: You could find it at a golf course, most yards of everybody that lives in the Valley. It's pretty endemic, it's -- you can find it a lot of places in the fall, winter and spring. GERAGOS: Okay. When you say "the Valley," the Central Valley is what you're referring to? OSWALT: The Central Valley of California. GERAGOS: Okay. So when you say "endemic," it's basically everywhere? OSWALT: You can find it a lot of places. GERAGOS: Okay. Then -- and he wasn't able -- he's -- the senior plant -- OSWALT: Systematist. GERAGOS: -- systematist and curator for the California Department of Food and Agriculture? OSWALT: Yeah. He's the one and only. GERAGOS: Okay. OSWALT: And I mean that. He's just -- there's one person there that does what he does. GERAGOS: Okay. The comparison that you did, there was another sheet -- do you have your work sheet in front of you? OSWALT: I can get that pretty quickly. GERAGOS: Okay. OSWALT: Which sheet are you referring to? GERAGOS: It looks like it says hair examination form, also dated the 21st. There's a Bates stamp on the bottom. Do you have it Bates stamped on yours? OSWALT: A what? GERAGOS: A Bates stamp on the bottom right of yours. OSWALT: No. GERAGOS: Okay. Let me just show you there. OSWALT: I think we're looking at the same thing. GERAGOS: Okay. Now, this is for further comparison of the two fragments; is that correct? OSWALT: Yes. This form I use when I go under higher powered magnification using the other microscope I mentioned earlier. GERAGOS: Okay. So you're able to determine other or -- items with more distinction, I guess, when there's a higher magnification? OSWALT: What I mentioned earlier is that with this type of microscope, you can actually look into the hair itself, the hair shaft and the root and things like that and look at what we refer to as the internal microscopic characteristics. GERAGOS: Okay. OSWALT: Pigmentation, things like that. GERAGOS: You did -- there's a spot there that says, "Cuticle thickness." Do you see that? OSWALT: Yes, I do. GERAGOS: Okay. Hair fragment 1 you had as a cuticle thickness of 2.5 millimeters; is that correct? OSWALT: Micrometers. GERAGOS: Micrometers. I'm sorry. OSWALT: Microns. GERAGOS: And then that was a different thickness than you had for fragment 2; isn't that correct? OSWALT: Fragment 2, it shows a range. I say approximately 2.5 to 3 and a half microns. GERAGOS: To three and a half. So it's about a range of roughly one to one and a half the cuticle thickness of fragment 1; is that correct? OSWALT: It would range from that. GERAGOS: Okay. From 100 to 150 percent, basically? OSWALT: Yes. GERAGOS: Is that correct? Okay. Then my copy is not great here. On cuticle variation, I can't see the first word, but then it says, "Even and uneven." OSWALT: Both even and uneven. GERAGOS: Okay. What are you referring to there? OSWALT: When you look at the -- I'll use my pencil again. Although, it's going to be hard to use this as an analogy for the cuticle. But the cuticle is the outer coating of the hair made up of the cuticle scales. They overlap each other. And if you think of the paint of the pencil as a cuticle layer, it's a relatively small layer compared to the rest of the hair. When you look at the boundary between the cuticle layer and the next layer in, called the cortex, sometimes you'll see a delineation which is relatively even -- even, in other words, there's no variation in that demarcation or difference, that area where it joins, where sometimes you'll see where they're actually -- it's uneven, it will vary from place to place along the hair shaft. In this case, with fragment 1, I noticed both even and uneven, places that -- that area where it met was even along the shaft and other places it wasn't, it varied. GERAGOS: And that was a different observation on fragment 2; isn't that correct? OSWALT: Yes. GERAGOS: Because fragment 2, as opposed to having this variation of even and uneven, you had -- you cited that as a mostly even for that cuticle variation; isn't that correct? OSWALT: That's what I put down. GERAGOS: Okay. You also were able to, with the higher magnification, take a look at the pigment color; isn't that correct? OSWALT: Yes. GERAGOS: And when you took a look at the pigment color, fragment 1 you had as brown, but fragment 2 you had as not only brown, but darker than fragment 1; isn't that correct? OSWALT: That's correct. GERAGOS: Okay. Were you able to do anything or make any observation as to the age of the hair or, I'm sorry, the hair fragments of 1 and 2? OSWALT: You mean in terms of the person that it may have come from or in terms of the age of the hair itself? GERAGOS: Age of the hair itself. OSWALT: That would be hard to do without a root, other than to look at other characteristics, such as the cuticle layer, the outside area, if it had been abraded or roughened up or had, let's say, use the colloquialism, had gone through a washing machine, something like that, where it looks as though it had been used and abused. In this case, I didn't notice anything that would lead me to make any type of observation about the age of the hair. GERAGOS: Okay. Now, did you also -- you did the same kind of examination and comparison that we've gone through with 1 and 2 with the hairs that Mr. Harris told you, stipulated came from the black-blue or blue-black hairbrush; is that correct? OSWALT: Easy for you to say. Yes, I did -- I did a similar examination, evaluation. GERAGOS: Okay. And in that examination, how did you obtain those hairs? OSWALT: I basically, with a pair of tweezers and with gloved hands, removed the hairs off the hairbrush -- GERAGOS: Okay. OSWALT: -- placed them under a clear plastic sheet protector, and went through about the same process that I did for the unknown hairs too. GERAGOS: Okay. Did you find that there were some -- you said that if some features fell within a range of variation, is that correct, from the -- from fragment 1 and 2, there was some variation between that and -- what did you call the other samples? Did you label them 148F and something or else? OSWALT: You've lost me. I -- GERAGOS: The blue-black -- OSWALT: I don't know where you're referring to or what other sample you're talking about. GERAGOS: On your chart -- OSWALT: Okay. GERAGOS: -- you have four columns. OSWALT: Okay. GERAGOS: Okay. Now, the first two columns we've gone over were hair fragment 1 and hair fragment 2. OSWALT: All right. GERAGOS: Third column is what? OSWALT: 26A. GERAGOS: Okay. What -- what are you -- what is 26A? OSWALT: Those were the hairs that came from the blue-black hairbrush. GERAGOS: Okay. And you're the one who removed the hairs to do the comparison; is that correct? OSWALT: I did. GERAGOS: Okay. Now, when you did that comparison, did you compare -- well, were both -- were there two hairs that you pulled out specifically for each column? One hair? What did you do? OSWALT: Well, for the visual evaluation and for the stereomicroscopic, which is the low-powered magnification, I used all the hairs. In other words, if you remember, when I took the hairs off the hairbrush, I put them under a clear plastic sheet protector, that way I could look at the whole sample at one time. That gave me an idea to establish characters -- to characterize that sample so I could obtain a range of variation, which is really what I'm trying to establish. GERAGOS: Okay. OSWALT: Trying to establish from this end to that end what are the different characteristics and how far they vary. So for the stereomicroscopic evaluation, I used essentially most all those hairs that I got off the hairbrush. GERAGOS: Okay. Now, on the chart that was -- I guess the second page that was -- OSWALT: Comparison? GERAGOS: -- you're reading horizontally? OSWALT: Yeah. GERAGOS: You've got item number 26A and item number 26B; is that correct? OSWALT: That's correct. GERAGOS: Okay. Now, is it a fair statement that both -- and 26A and 26B are both hairs that came off of the hairbrush, right? OSWALT: Well, they came off the separate hair brushes. GERAGOS: Separate hair brushes? OSWALT: 26A was the blue-black, 26B was the brown. GERAGOS: Okay. And is it a fair statement that the size -- and you said it was in micromillimeters for the cuticle thickness? OSWALT: In microns or micrometers, yes. GERAGOS: Okay. For the -- is 26A the blue-black hair -- OSWALT: That's -- GERAGOS: -- the one that came from the blue-black brush? OSWALT: That's correct. Yes. GERAGOS: Okay. That is the same size, 2.5 to 3.5, as fragment 2; isn't that correct? OSWALT: And for fragment 1. GERAGOS: And fragment 1, you've got 2.5. You don't say 2.5 to 3.5, right? OSWALT: But that's only one hair, so -- GERAGOS: Right. Fragment 2 is 2.5 to 3.5? OSWALT: Right, but that's a range of variation, so -- GERAGOS: Okay. Range of variation on -- OSWALT: Fragment 1 falls within the range of variation of the blue-black hairs -- GERAGOS: Right. OSWALT: -- or hairs from the blue-black hairbrush. GERAGOS: But you don't have 2.5 to 3.5 for fragment 1; isn't that correct? OSWALT: That's correct. GERAGOS: Okay. You do have 2.5 to 3.5 for fragment 2, 26A and 26B, correct? OSWALT: Yes. And I need to clarify, again, is that that's a range of variation for all the hairs that I looked at in that -- at that point in time for the comparison. So that establishes the bounds of the lowest or the smallest cuticle thickness to the largest that I saw. GERAGOS: Well, you also have on cuticle variation fragment 1 is both even and uneven, right? OSWALT: Right. GERAGOS: Fragment 2 is mostly even, right? OSWALT: Correct. GERAGOS: For the blue-black hair -- blue-black hairbrush -- OSWALT: You're starting to say it now. GERAGOS: -- and the brown hairbrush, you have even and uneven; is that correct? OSWALT: Both even and uneven, yes. GERAGOS: Okay. OSWALT: And within the sample of 26A, what those notes indicate to me is that I saw cuticle variation that ranged from even to uneven on individual hairs and corporately for all -- for all the hair -- excuse me, for the whole hair sample. So both fragments 1 and fragments 2 of item 144 fall within what I saw from the hairbrush of 26A. GERAGOS: Okay. Now, you also were given what is an evidence hair that you had labeled 146A and an item 148F. Do you have that? OSWALT: That was on a totally different case report, and I think we were looking at different hairs too from a different source. GERAGOS: Okay. Do you know where the source for those were? OSWALT: Well, if you give me a moment, I'll go take a look, because there were a lot of items we looked at -- GERAGOS: Okay. OSWALT: -- given the thickness of the binder. Those may have been -- GERAGOS: I got -- maybe I can -- I've got the page here in your notes. OSWALT: I'm getting there. GERAGOS: Is this it? OSWALT: That's one of the ones I did. This one right here. Is that what you have? Do you have a report for that? GERAGOS: Let's see if I can -- OSWALT: If you're referring to 146A and the items 148, which were -- there were several hairs in that, those were nonhuman hairs. GERAGOS: Well, exactly. And that was submitted -- this was evidence that was submitted to the laboratory -- OSWALT: On February 28. GERAGOS: -- February 28th. OSWALT: Right. GERAGOS: 146A was hair or fiber collected from the red rope; is that correct? OSWALT: That's right. GERAGOS: 148F is hair -- hairs collected from black and orange nylon rope in green bag? OSWALT: Yes. GERAGOS: Okay. So you were also given some hairs to take a look at as well. What was your conclusion as to what those hairs were? OSWALT: I can read the summary. GERAGOS: Sure. OSWALT: The one evidence hair in item 146A and eight evidence hair frag -- hairs or hair fragments in item 148F were nonhuman in origin. Evidence hairs 146A, 148F-2 and 148F-7 possessed characteristics indicative of dog hair. Evidence hairs, hair fragments 148F-1, 148F-3 to 148F-6 and 148F-8 could be cat or dog hairs. GERAGOS: What was the color of the hair? OSWALT: Which hair? GERAGOS: The -- there was eight that you identified. What was their range of color? OSWALT: 146, golden brown. 148F-1 through -- it ranges from golden brown to a light brown to a very light brown to -- and, in some cases, clear. Just to summarize. Is that what you have? GERAGOS: Yes. OSWALT: Okay. GERAGOS: Then the -- were you given some other sample hairs from a -- specifically that was represented to you to be from a dog or a specific dog as a known sample? OSWALT: We were given some reference hairs -- HARRIS: Your Honor, I have to object as to relevance. It's outside the scope of direct. JUDGE: It is outside the area of relevance, Mr. Geragos. GERAGOS: For the chain of custody, I believe that it is relevant if there is -- they had indicated they were going to utilize dog trailing evidence. My offer of proof is that the -- some of the dog hairs that they compared to were the dogs that were actually placed into the boat that apparently shed hairs into the boat as well. JUDGE: I think you can ask him whether there's any possibility these hairs are a dog's hair. And if he says no, we're off. GERAGOS: Well, the problem is is that there is a transference issue. And if that's going to be the issue, the dogs were -- I will represent to the Court that the one dog in particular was at the house first on the morning of the 27th, and then it was immediately taken to the boat on the same morning of the 27th. There were then hairs that were recovered from the boat, and they apparently took hair samples from that dog to do a comparison with the hair samples that were taken from the boat. JUDGE: Mr. Harris? HARRIS: We don't need this witness to go through and tell us his microscopic comparisons of dog hairs. It's something Counsel can ask of other witnesses or produce his own witnesses as to that point. This is not something within any knowledge of this witness whether any of that stuff happened. GERAGOS: No, it's -- JUDGE: I've heard enough. It goes to the weight of his testimony as far as the hair evidence in this matter, so I'll allow it. GERAGOS: The -- you were given a task, if you will, or I think you guys call it a request, to compare some hair samples from a dog with hair samples that were recovered from a boat; isn't that correct? OSWALT: The one reference sample that I'm aware of that I looked at were from a Golden Retriever by the name of McKenzie. GERAGOS: Okay. Did you look at any other hair samples to compare with -- OSWALT: With -- I'm sorry. GERAGOS: -- animal hair samples? OSWALT: Reference samples or unknowns? GERAGOS: Yes, reference samples. OSWALT: No. GERAGOS: From a dog named Twist. OSWALT: No. No, sir. GERAGOS: Would that have been some other analyst? OSWALT: Not in our lab. GERAGOS: Okay. Thank you. I have no further questions.
Redirect Examination by David Harris JUDGE: Mr. Harris? HARRIS: Just make sure we're clear about this, the hair fragments 144A, 1 and 2, are those human hairs. OSWALT: They're human head hairs. HARRIS: Now, you indicated that -- before that Laci Peterson could have been someone who donated those two fragments? GERAGOS: Objection. That misstates the evidence. That's not what he testified to. JUDGE: Well, overruled. OSWALT: What -- could you restate the question, please? HARRIS: With -- going back to where I kind of confused you before with the stipulation, with the understanding that 26A is Laci Peterson's hairbrush, so that particular person's hairbrush, could the person whose hairbrush that was have contributed fragment 1 and 2 of 144A? OSWALT: Could have? Yes. HARRIS: All right. The hair fragments that we're looking at, they're 1 and 2, are those shed hairs? OSWALT: That is hard to discern, because there is no root. HARRIS: What is a shed hair? OSWALT: A naturally shed hair is a hair that has entered into the resting phase, it has a root that has started to go to sleep, for example, and to be allowed to come away from the scalp through combing or whatever means. The shape of that root changes, we -- in hair examination, that root is called a telogen, T-E-L-O-G-E-N, root. And if you see that type of a root on a hair, it is a hair that could be naturally shed, and especially if you find it away from the body, that is what usually is presumed to have occurred. HARRIS: Okay. Now, you looked at some of the hairs or a number of hairs from the 26A hairbrush. Did you find that characteristic occurring in Laci Peterson's hairs, that catagen, telogen, I believe that's how you have it up there? OSWALT: There's three -- three types of -- well, three definitions or three ways of describing hairs based on whether they're alive or they're going into a transition phase or they're in the resting phase. If they're an actively growing head hair, the root is very pliable, and when it comes away from the scalp, if it's forcibly removed, it looks as though you've taken a rubber band, snapped it, and it hasn't quite gotten back into shape. That's an anagen hair -- excuse me, an anagen root, A-N-A-G-E-N. A catagen, C-A-T-A-G-E-N, is a hair root that is in transition between actively growing and resting. And a lot of times, in that case, if you've seen a hair away from the body, you may see a little tissue tag, we call it a follicular tissue tag, attached to the root. And a telogen is when it's in the resting phase, when the root is in the resting phase. In item 26A, I said the majority -- in reading from the form, I said approximately 95 to 99 percent of those hairs I saw from the sample were from the catagen, slash, telogen. There's going to be obviously a gradation, a continuum. I said I saw a few antigen and cut -- or cut hairs, that lacked a root. When I said "cut," I meant the root had been cut off. HARRIS: And you didn't observe those same characteristics in fragment 1 or fragment 2? OSWALT: Couldn't tell. No root. HARRIS: All right. Now, with regards to -- you were asked about the different boxes on your chart up there, and I want to go through one of the boxes you were asked about, and that was trace evidence. You've already told us about these -- one kind of mystery material and the other blade of grass or plant material that was there. Were both of these found on one of the fragments or what? OSWALT: The plant material was found on the longest fragment, which was -- which I identified as fragment 1, and the -- as of yet, the mystery material, the translucent piece, which I think was approximately a quarter inch, was found on the other fragment, fragment 2, the shorter -- shorter fragment. HARRIS: Now, underneath that in your chart, you have up there the trace evidence was removed, put in a bindle, there's notations underneath that. What do those stand for? "Some" -- starts, "Some" -- OSWALT: Oh, I said, "Some clear to off-white encrustation." HARRIS: So you saw that clear to off-white encrustation of both fragment 1 and fragment 2? OSWALT: Yes. HARRIS: Did you also note that on the hairs from 26A? OSWALT: Yes. HARRIS: Now, you were -- you were asked about something that was filed by the District Attorney's Office. You don't file paperwork for the District Attorney's Office, do you? OSWALT: No. HARRIS: And you were read something. I want to -- let me show you page 15 of this particular motion, give you a chance to look at this here on line 15. The only quoted portion in that particular sentence is the part that says, "Mashed, splayed and frayed"; is that correct? OSWALT: Yes. That's correct. Well, excuse me, and then there was -- HARRIS: In that particular sentence? OSWALT: Oh, in that particular sentence? Yes. That's correct. HARRIS: And is that what you have written on your -- the chart up there that's a blowup of your notes? OSWALT: For fragments 1 and 2? HARRIS: Yes. OSWALT: Yes. HARRIS: With regards to these pliers that you were asked about with the other analyst, Miss Yoshida, she's somebody that works with you at the lab? OSWALT: She's a senior criminalist in our lab, yes. HARRIS: And do you happen to know when it was that she prepared that report? OSWALT: I could look. HARRIS: If you would, so we could get the correct date. While you're doing that, I'm going to have another photograph marked. CLERK: Exhibit 139. (Whereupon, People's Exhibit 139 was marked for identification.) OSWALT: There were two reports that Senior Criminalist Yoshida prepared. One was dated February 26th of this year, and the other one, the second one was dated March 19th of this year. HARRIS: So if we take the first one, which would be in February -- I know it will sound kind of like a dumb question, but that's a couple months after December, right? OSWALT: By my reckoning, yes. HARRIS: All right. And have you ever had experience in your job as a criminalist with subjecting tools, or maybe even in your personal life, to exposure to salt water? OSWALT: I fished in Alaska over the course of this last ten years about five times, been saltwater fishing and stream fishing for salmon, halibut. I'm pretty familiar with it. HARRIS: What happens to tools when they're exposed to salt water? OSWALT: They rust relatively quick if they're not rinsed off in clear water, in fresh water. They have a tendency, because they're a soft metal, they're not really protected, they're not usually a stainless steel or something that inhibits rusting, so they have a tendency to rust pretty quickly. Even a pair of Leathermans that I carry, which are a multi-tool implement, up there for, you know, fixing things as they break, I dropped them in salt water one time, and I didn't rinse it or for a day's time, and it started to rust on me. HARRIS: Looking at the photograph that you have before you that's been marked as People's Number 139, I know it's kind of hard to see, but do you see depicted in the photograph a pair of pliers? OSWALT: Right here (indicates). HARRIS: And -- OSWALT: Pretty close. HARRIS: Can you tell if there is a hair that's visible in that pair of pliers? GERAGOS: Objection. The document speaks for itself. JUDGE: I'll sustain that. HARRIS: Do you see a pair of -- hair in that pair of pliers? GERAGOS: Same objection. JUDGE: Sustained. HARRIS: Looking at the hair in the pliers there, do you notice something that is similar to the other photographs that you have up there that you've brought with you or testified to earlier? OSWALT: Well, if I could describe it, what I see is a hair, trails off from the -- from what looks to be the tip of the pair of pliers across this numbered bracket, an item -- item number, which is 44. It lays across the front of that. And towards the end or part of the hair away from the pliers, there's a long, thin piece of material, looks like it's attached to the hair. HARRIS: Does that piece of material that looks like it's attached to the hair look like some of the -- excuse me, some of the debris that you found on the hair or hair fragments when you examined it in February? OSWALT: It has the same rough dimensions, relatively speaking. HARRIS: People have no other questions.
Recross Examination by Mark Geragos GERAGOS: Nobody ever bothered to show you that prior to today? OSWALT: I saw this picture maybe two times before. GERAGOS: Okay. Now, the -- OSWALT: But it was not as -- it was maybe a little less clear, a little bit more blurred, the earlier pictures I saw. GERAGOS: Okay. So this is an enhanced version for you? OSWALT: I can't -- I don't know if it is or not. GERAGOS: Okay. Now, do you have in front of you the previous thing you had in your hand, the other item -- not the picture. You can put the picture down for a second, if you want. OSWALT: Okay. GERAGOS: You were looking at something else with the comparison. OSWALT: I was looking at the other pictures. GERAGOS: Okay. You said they look -- that there's roughly the same dimensions, is that -- was that your testimony? OSWALT: Relatively speaking. GERAGOS: Relatively speaking? OSWALT: Same rough dimensions, relatively speaking. GERAGOS: The -- OSWALT: And I'm referring to this piece of material right there (indicates). GERAGOS: Right. And, once again, Mr. Harris showed you that page 15, line 15, and nowhere in your notes or in the report on the motion that they wrote did you ever say that the damaged ends appeared to match each other; isn't that correct? OSWALT: Page 15 of which report? GERAGOS: The report he just showed you. OSWALT: Oh. GERAGOS: The motion, if you will, that he showed you. OSWALT: He wanted me to focus in on what was par -- what was in quotation marks: Mashed, splayed and frayed. GERAGOS: Right. He didn't ask you to focus in on what those quotations marks were used to say, which is that they appear to match each other, you never said that in your notes nor in your report; isn't that correct? OSWALT: No, what I saw in quotations on page 15 was mashed, splayed and frayed. GERAGOS: Right. And you never wrote, "Appear to match each other", isn't that correct, in either your -- OSWALT: The mashed ends? GERAGOS: Right. OSWALT: That's correct, I never said that. GERAGOS: You never said that. Now, the -- OSWALT: In the report. GERAGOS: The examination of 26A and B, did you also note in there under 26B that -- where it says indicated body area -- do you see that? OSWALT: If you give me a moment, I'm just going to go to this one and turn it around. I'm sorry. Could you repeat that, please? GERAGOS: Do you say where it says indicated body area for 26B? OSWALT: Page nine? GERAGOS: Yeah. Let me show you. OSWALT: I'm with you. GERAGOS: You got it? OSWALT: Yeah. GERAGOS: You see there's a -- you've put in there some notations. Do you see that? OSWALT: Yeah. GERAGOS: Okay. And then what's the top one? OSWALT: That -- I use that acronym to mean primarily, a one with a little circle superscript. Primarily human head hair. GERAGOS: Okay. What does it say below? OSWALT: "Few appear to be nonhair fibers and/or nonhuman." And then it says, "Evaluate on comparison scope." GERAGOS: Okay. What does that mean, "Few appear to be nonhuman"? OSWALT: Well, in some of the earlier notes, as well in the photos, there seemed to be a lot of lint or some lint and some other nonhuman hairs that were intermixed with the sample that was on that hairbrush. GERAGOS: And did you -- were you able to identify what that mystery material was? OSWALT: I basically just said they appeared to be nonhair fibers and/or nonhuman. I didn't go any farther than that. GERAGOS: Did you ever do a comparison from the -- what you called the mystery material on the -- one of the hair fragments with the nonhuman fibers found on the brush? OSWALT: No. GERAGOS: Number 26B? OSWALT: No. GERAGOS: You never did that? OSWALT: You need to restate the question, please. GERAGOS: Did you ever compare what you labeled the mystery material that was attached to -- or you say was attached to or came in conjunction with, if you will, the fragment 1 -- you know what I'm talking about? OSWALT: Well, the stuff that had -- stuff. The material that came off of fragment 2 is what hasn't been looked at yet. GERAGOS: Okay. Did you ever -- OSWALT: That's what I alluded to earlier, if you're quoting me, as mystery material, quote, unquote. GERAGOS: I'm quoting you. OSWALT: Okay. GERAGOS: That's from fragment 2. OSWALT: That's from fragment 2. GERAGOS: Did you ever -- did you ever compare that to the nonhuman fibers or material in 26B? OSWALT: No, I did not. GERAGOS: Thank you. I have no further questions.
2nd Redirect Examination by David Harris HARRIS: Just real briefly. HARRIS: The fibers or the nonhair fibers and nonhuman hairs in the second brush, 26B, is that the same type of material that that, quote, mystery material is on fragment 2? OSWALT: It doesn't have the same consistency. They're basically -- those were fibers and nonhuman hairs. The material that came from the fragment -- the second fragment, fragment 2 of 144A, was a small rectangular, roughly rectangular piece of like a translucent material when I first observed it, when I first looked at it. It didn't look similar to what I saw on 26B. But I did not take a thorough look at all that nonhuman hair or nonhair fibers that were on 26B, so I can't state for certain. HARRIS: But on your initial inspection, they weren't similar? GERAGOS: Objection. Misstates the evidence. JUDGE: Sustained. HARRIS: I have no further questions. GERAGOS: Nothing further. JUDGE: You may step down. |