US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003

NO JURY PRESENT

VOLUME 16
 

{3351}
 AFTERNOON SESSION
(Whereupon, at the hour of 1:30 o'clock, p.m., the trial of the within cause was resumed pursuant to the noon recess heretofore taken; and the following further proceedings were had, the Defendant present in person:)
MR. LOWE:  Your Honor, before we recessed for lunch we were discussing an intended offer and a series of questions which would precede the offer in regard to this witness; and do I understand you would like me to make an offer of proof or to disclose to the Court what my intention is so we can discuss it before the jury comes back in?
THE COURT:  Yes.
MR. LOWE:  Basically, your Honor, I would lay a foundation by questions of this witness in order to introduce into evidence laboratory reports which were issued by this witness in conjunction with examinations which were made on ammunition components and weapons in this case.
The starting point with Rule 401 which your Honor has cited many times, that the relevant evidence is anything which tends to prove or render more probable the occurrence or existence of an event and so forth. Your Honor is familiar with the Rule.
We think that of all the evidence that has been {3352} introduced into this case, with all this guncase full of weapons, with all of the envelopes full of cartridges, with all of the other matter that has been introduced as physical evidence, that the reports that are issued in this case are at least relevant, at least as probative of the contents contained therein, as any other item that the Court has already introduced evidence; but that's not sufficient by itself for our grounds, although I think that is enough because of the various Rules.
I would like to cite specific Rules that I would propose to show through this witness, beginning with Rule 612 -- this witness has said candidly and certainly to no one's surprise, I trust, that he reviewed before testifying, and in fact while he has been testifying, laboratory reports, and indeed he reviewed notes and work papers, but specifically laboratory reports prior to testifying here, Rule 612, and he indicated that he couldn't possibly remember all of that stuff contained in there without the use of reports; and again that's saying nothing that we don't all know as a matter of human experience.
Rule 612 indicates that if a witness uses a writing to refresh his memory -- and in this case it wasn't just refreshing his memory, he was relying on the information in the document, whether it refreshed his memory or not, and properly so -- for the purpose of testifying either {3353} while testifying or before testifying, that we are entitled not only to cross examine the witness thereon but to introduce into evidence those portions which related to testimony of the witness.
Now, under Rule 803 which relates to hearsay exceptions, where the availability of the declarant is immaterial, so the fact that this witness is here has no relationship -- first of all, these reports reflect a presence impression which this witness recorded at the time he made his examination. He recorded what the impression was he had, what the condition was that he observed when he received these items as to markings and identifications, as to where they came from and so forth, and immediately thereafter. He also includes the recording of the events which were the testing, the comparison, the firings, the recovery of components from fired weapons and the comparison that he made of them to other components which were discovered at the various locations he has testified about.
In addition, under Rule 803-5 -- that is 803(5) -- this is a recorded recollection, a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.
{3354}
Obviously this witness has already testified substantially to that, and again to no one's surprise. We all realize that this is the case with an expert of this type.
Under Paragraph 6 of Rule 803 he has already identified as to some of the documents, and I would offer my offer of proof that I will elicit from him testimony as to the others that I offer, that these are records, they are memorandum, reports, records of either acts, opinions, diagnoses made at or near the time, or information transmitted by a person of knowledge; that they are kept in the regular course of business activities that's involved in at the laboratory, and that it is a regular practice of his activity, his laboratory to make such report to show the information contained therein.
Under Paragraph 7 of Rule 803 we are entitled to show that evidence, that a matter is not included in the memorandum, report, records or data, is admissible to prove the non-concurrence or non-existence of the matter; and I might add a footnote, that therein lies the misunderstanding that Mr. Sikma has about these documents and many others, and that is that it is not necessary to point to specific things in the document that we want to prove, but as is clearly and explicitly recognized by the Federal Rules of Evidence, Rule 803, Paragraph 7, that we {3355} are entitled to introduce the entire document whether there is stuff in there that is irrelevant or not, in order to show the non-recordation of certain information, the non-receipt of certain items, the non-connection of certain ammunition components with certain weapons; and that is clearly contemplated under Rule 803(7), and I add by emphasis that this is an exception where the witness' availability is immaterial.
Now, the Government has gotten to a sing-song in this trial of saying it is not the best evidence. They clearly don't understand the best evidence rule because the best evidence in this case is clearly the written document by the testimony of this witness. It is the best evidence because it was made when he knew the information, as he was drawing it out on the various examinations and recorded accurately at that time. He does not have that recollection now. It would be admissible under the best evidence rule even if he had that recollection now as a recording of this to show the non-recording of certain information; but even under the other exceptions, the fact that this witness is available does not mean that under some conception of the best evidence rule it is not admissible.
The fact that it is documentary -- the Government seems to think somehow that it is wrong to introduce {3356} documentary evidence, at least that's been the thread of some of its argument. --
Mr. Crooks particularly constantly says throughout this trial the defense has been trying to introduce documentary evidence, as though that were wrong in some way. These exceptions specifically enumerated in the Federal Rules of Evidence make it clear that this is the very evidence which is contemplated, documentary evidence. In some cases it may be oral, but clearly documentary evidence is intended to be included. Under all of these Rules we would have a basis for introducing this evidence.
Now, as to the specific information, I certainly don't want to go over each item and say exactly why each item is relevant; but I can tell your Honor that the Government last year made the argument -- and I presume that they will make some allusion, or I suspect that they will in their closing argument, to the possibility that various people in the Jumping Bull area on June 26 were picking up cartridge cases as a way of explaining why there are no cartridge casings to match certain alleged sighting of shootings or in the immediate area of the cars, for example, where there were three shots fired and there is only at the very most, by the best evidence the Government has produced, the one cartridge case, the .223, which might be conceivably linked to all shots that were shot. {3357} We know all three shots didn't come out of the one cartridge case. They attempt to explain this by saying people may have been picking up the brass cartridge cases either to avoid detection or because they needed to reload them or for some unspecified reason.
If the Government is permitted to argue that -- and I certainly think that -- I can't think of a reason why they shouldn't at least be permitted to argue that although it sounds pretty unreasonable in the middle of a gunfight, nonetheless we are certainly entitled to argue on the other side that the fact that there are no cartridge cases fitting certain other weapons which were reported in these laboratory reports, for which components were found in Tent City, might indicate that those people were picking up cartridge cases. For example, we have had testimony here about a 30-40 Krag cartridge casing. We have also had testimony that the 29 -- I think it is 29-G fragment could have been fired from a Krag, Model 1892 rifle, the cartridge casing in the Tent City area -- it is very unlikely that somebody fired from there and it resulted in the bullet being in the agent's car and nobody would argue that; but on the theory that the Government has, that people might have been picking up cartridge casings, we are certainly entitled to show the finding of any relevant cartridge case, caliber or type, in order to {3358} allow for the argument that if people were picking up cartridge casings, then why couldn't they have been picking up cartridge casings for some weapons which were never recovered, as well as the weapons recovered?
In order to show a foundation for the fact that such might possibly have been the case, in order to attempt to raise that assertion to a level of reasonable doubt and not just remote doubt, we are entitled to show what kinds of cartridge components were found in the Tent City area, for example.
Now, I don't have to read every single item on the list in order to do that. First of all, that would be doing by indirection what your Honor would theoretically be ruling I couldn't do by direct action, if you did not allow the introduction of this document. There is no lawful or utilitarian purpose in letting me read the entire document and then not allowing it to be introduced into evidence. The law is certainly founded on reason and not on mere form. That would be only a matter of form.
In addition, there are weapons which are referred to in these reports, some of which we have alluded to with the witness, but not all of them. These are weapons in many cases which have not been introduced into evidence. They are weapons from which cartridge components in the Tent City area could have been fired in these weapons. {3359} These weapons give rise to questions about whether people had been using them and firing them in the immediate area of the residences and the red and tan house because I called your Honor's attention that at least one weapon in evidence which is No. 41-A was found in the Tent City area, I believe on the hood of the 1967 Ford, which shows that at least one of the shooters took his weapon back with him and left it in the Tent City area. Therefore, any other weapons that are found in the Tent City area might equally have been carried by a shooter and left there in the haste of escape.
We have evidence already in this trial of a number of people who were shooting from places and at times which are inconsistent with them being a part of this group that escaped with Norman Brown and Mr. Peltier and so forth; and we know at least several people that did escape by other routes, for example, the Long Visitors. There were sightings from time to time by different people of fire coming from different places which could not have been the people in the escape route. At least we are entitled to argue that from the evidence, and they must have had guns of some kind, and if they aren't guns that were recovered, then they must have had guns that were not recovered. If that be the case, we should be entitled to show that some of the ammunition components discovered in this examination {3360} fit different kinds of weapons which might be consistent with the physical evidence, particularly down at Coler's car.
We have testimony about high-powered or high velocity shots having killed those two agents. We have already by my count four or five different high velocity weapons that have been identified by type. Some of them have been introduced in evidence. Others that were found were not introduced into evidence. Others were never found, but ammunition components to match them were found in the tent area and in the general Jumping Bull area.
These are all matters that are relevant to our case. In addition, we believe that it is quite relevant that there were no more ammunition components found in the agents' guns. There has been testimony to indicate that more than three or four shots were fired by the agents. Now, I would not say that as a matter of law your Honor would rule that's the case, but certainly the testimony of Norman Brown and Mike Anderson and perhaps other testimony in evidence would indicate that many more shots than four were fired, and yet only four cartridge cases were found and attributed by the FBI, at the Coler car area, to these weapons.
We believe that we are entitled to argue the significance of that and to point to the significance that in {3361} none of these reports were other rounds or other cartridges found or to point to the ones that were found, and to point out that these are the only other ones that were found, and to make reasonable arguments and ask the jury to draw reasonable inferences from that information.
Now, in addition to all of that, there are conclusions stated, findings which are official findings of an expert recorded at the time he made them, in a manner which brings it into the clear exceptions to the hearsay rule enumerated in Rule 803; and we are entitled to have those findings in evidence specifically. There are cases where specific cartridges are found to have been fired from a specific weapon. Those cartridges in many cases have not been introduced by the Government. We have already alluded to a number of them with the witness. There are many more from Tent City, for example, that relate to the AR-15 or the M-1 or the 30-30 which were not introduced.
Perhaps in some of those instances Government counsel thought that it was not important because they were in Tent City; but we are entitled to show the presence and to draw reasonable inferences from them.
In addition to showing that, we believe that we are entitled to the information which shows that certain weapons could not have fired some of the cartridge casings found because that gives rise not only to an inference but {3362} to an actual fact that there must have been another weapon at some time in the history of that cartridge that fired that cartridge.
To show there were some other weapons, at what time or what date or what place, is a matter of argument based on all of the evidence taken as a whole; but we are clearly entitled to show the non-association of those cartridge components with the weapons that are in evidence.
In addition, there many ammunition components for which insufficient markings were found to link them to a weapon or to exclude them from having been fired or extracted from that weapon. In those instances, there is a lot of room for argument as to whether they might have been associated with that weapon inferentially, if not by their markings, or might have been shown there were even other weapons not identifiable.
We are entitled to have that information contained in these laboratory reports. There is undoubtedly some information -- there are undoubtedly a few items in here -- I remember one or two that don't relate to the ammunition components, for example, which do not directly relate to this witness' testimony but which are clearly relevant in that they were found in the area of the crime scene. The mere fact that there are a few items in a large document which do not directly relate to a witness' testimony does {3363} not mean that the entire document must be kept out of the record, particularly where there is no prejudice shown.
The Government has not even attempted to argue any prejudice except the vague prejudice that it would confuse the jury; and I suggest, your Honor, that all the evidence that the Government has put in would confuse the jury. I suggest that's one of the reasons why we have summations for counsel to take this unintelligible information that may not be related in any way during the course of the introduction of evidence and testimony and tie it together and explain it to the jury, what this does mean and why these pieces of evidence are relevant and what they do tend to show, and to eliminate that confusion; and with the introduction of these laboratory reports, of course, in summation we are going to point to specific parts or to specific omissions, and explain to the jury what we believe those mean and to let the jury draw their conclusions and draw their inferences, and Government counsel can do the same thing.
I have got a lot of faith in juries. In my experience juries don't confuse very easily. They have got a lot of common sense. Those people have a lot of ability to sort out the chaff from the wheat, probably a lot more than lawyers and Judges do. I believe they will go to the heart of the matter when they get back in the jury room. They {3364} will not be confused by a lot of items on the laboratory reports we are seeking to introduce that are not of great importance. They will remember or find what they believe to be of importance, I have confidence in that.
{3365}
MR. LOWE:  In any event that's for a matter of argument. We can talk about pictures, talk about wanting to confuse the jury. The Government, oh, I might point out, argued fervently at the beginning of this trial that they would be entitled to introduce these terrible post mortem photographs. We offered to stipulate, the Government rejected. We offered the fact that the evidence could be testified to by the expert without the necessity of looking at the photographs. They argued that the expert could do a better job, or the jury could get more information.
I suggested that there's a lot of extraneous information in those photographs that does not actually relate directly to the fact finding the jury would have to make in order to find a death by the agent, and that it was fired by a gun shot or whatever it might be. But Your Honor let that in on the theory this is a serious case, that the evidence was probative in nature, and there was no best evidence. There wasn't. The best evidence was the expert. As a matter of fact they argued that the best evidence was the photographs.
And we are in the same position now. We have photographs, although they are photographs of laboratory reports, and they are nonetheless photocopies of laboratory reports which are just as instructive for the jury as those post mortem photographs. They are no more likely to confuse the jury that those post mortem photographs are. Those post mortem photographs are not {3366} likely to, but are also highly inflammatory. The laboratory reports are at least not highly inflammatory and with proper handling by both counsel the laboratory reports are important pieces of evidence in this case.
Finally, I think that where we have a body of evidence the size of the laboratory reports in this case, the number of items that are listed, it is a denial of due process to require that no written list of these things be made available to the jury so that they can refresh what they heard during trial by referring to properly introduced documents. To say that we should have the witness read off all of these items for the jury and then give them nothing to take to the jury room with a listing of these items would be the most fundamental denial of due process conceivable. That is one of the reasons why we have these exceptions to the hearsay rule for records kept in the ordinary course of business and for the other ones is because when you have a long list of things like this no jury could humanly remember the numbers and keep this straight.
If they are given a document which has them listed in an orderly fashion, which these purport to do, then we would be able, the jury would be able to refresh its recollection and to associate its recollection with the physical evidence.
For all of these reason, Your Honor, we would ask that these reports, which I will name now, be introduced into {3367} evidence. I'm having some copies made. Apparently they're still in the process of Xeroxing some. But I will identify them for the record at least and then I will tender them as soon as they come into the room.
I'm speaking of, and I'll just list the dates. These are laboratory reports, and the dates I list will be with slashes.
8/5/75, which has already been identified as Defendant's Exhibit 134 and I might add it was also identified as Defendant's Exhibit 175. Mr. Taikeff didn't realize it had already been earlier marked. I will use the 134 designation since it's the first one.
10/16/75, 10/31/75, which has been previously identified as Defendant's Exhibit 135.
12/4/75, l/13/75, 1/16/75, 2/4/75, 2/10/75.
In addition, Your Honor, while I'm on the subject of introducing evidence I would move the admission into evidence of Government's Exhibit 177 which is the photocopy of the green sheet of Special Agent Hughes which are handwritten notations of this witness made in the margin. I believe now we have a proper foundation for introducing that. It's quite relevant. I would explain to Your Honor at the bar out of the hearing if necessary to go into any relevance on that, but I think Your Honor may know it already.
In addition, while the witness was testifying, I showed {3368} him a list of weapons which could have fired 29-G or F, and which could have fired 34-G and H. The weapons that were listed for 29-G or F is Defendant's Exhibit 185. For 34-G or H it's Defendant's Exhibit 186. And I would also offer them into evidence at this time.
And finally when we were at the sidebar and I listed the laboratory reports that I wanted to introduce into evidence, and I believe I listed the ones I did dare with on addition, I think I picked up one in October 16 of 1975 I had left off my list. But I clearly had February 10, 1975 there -- excuse me, February 19, 1976. Mr. Sikma said that I was playing fast and loose with the Court and I think were words to that effect because I was not introducing the laboratory report relating to Exhibit 34-B to show that it had been fired from 34-A. I expressed my resentment and insult at that time at being, having that said. I told him that it was in Exhibit -- February 10, 1975. He vehemently asserted that that was wrong. I call upon him for an apology, as if he would read February 10, 1975 he would see that it is most certainly included in that report on page 10 and page 19 as I represented to the Court.
MR. SIKMA:  Your Honor, I don't, I'm not going to make an apology at this time to Mr. Lowe or for that matter any other time, anything that I've said at the bench. I don't recall his mentioning that. If he has, why it's my {3369} mistake if it's a matter of record. I understood this was going to be a period of time when there was going to be an offer of proof. All counsel did during this time is make, repeat legal arguments that he's made in the past on precisely the same, on precisely the same issues.
One thing I would state that confusion of the jury is not a small matter. We would say that counsel could argue all the things that he's argued before the jury without putting in about five hundred pages of technical laboratory reports before the jury. I would state that this matter comes under Rule 401 and -- or rather Rule 403 which excludes this type of, this type of evidence because it, well, while it may be relevant in portions that it is clearly confusing and the prejudicial value of it outweighs its probative value.
I would state that while counsel frequently refers to present impressions I think from the notes that were made, or the explanation in the rules with regard to present impression exception, that this was clearly a replacement of the old res gestae rule; and laboratory reports are not present impressions that fall within that category.
Now, counsel says you can prove by showing these laboratory reports, you can prove nonrecordation of certain facts. Well, it doesn't record a lot of facts because there's no evidence concerning those facts. If counsel has some specific items which he wants to refer to, that's one thing. {3370} If the laboratory let something out of their report that they should have included, that would be something where you would have an instance of nonrecordation as proof of certain facts occurring. But to attempt to use what has been recorded by the laboratory and to use that to prove some other aspects of the case, as I understood counsel was saying that suppose someone else could have come in and fired some shots at the agents or actually murdered the agents, picked up all the items and left without leaving a trace, I suppose that that wouldn't be recorded in these laboratory reports either. But it doesn't make the laboratory reports admissible.
I would say that we have argued this question a number of times and the Court has ruled on it. Counsel indicated one other matter about casings being removed from the crime scene, or that the agents only fired a couple of rounds. I would submit that there are twelve rounds, six from Coler's gun, six from Williams' gun that were found in the cabin where Butler was arrested. In addition to this, six spent cartridge casings from Coler's gun were found in Ontario, Oregon. I would say this might be some evidence that would be relevant to the question that shows people removed items from the scene which would not require putting into evidence these several hundred pages of reports. They are technical in nature, while the jury may be able to understand them, I don't think that it's clear that they have any probative {3371} value.
And I do not think that regardless of what the exceptions that were cited, they must have some probative value. If the Government, for example, tried to offer into evidence all of the evidence found in relation to this case, clearly it could be excluded as not being relevant as far as this case or this defendant is concerned.
With regard to, I think it's Defendant's Exhibit 186 and 185. These items are nothing more than things that counsel has, counsel has written up. Apparently the witnesses testified to. I really have, would not say that they are reports that are admissible concerning this witness's testimony as such.
Other than that, Your Honor, I would also state that counsel keep referring to Rule 612. It seems to me that Rule 612 clearly states that if the witness hasn't testified about that, about certain items, it says, speaks of introduction in evidence those portions which relate to the testimony of the witness, and it also offers the Court in certain instances to exclude those items which the witness has not testified.
Counsel keeps mentioning the fact that, has mentioned the fact that at sidebar I took some sort of swipe at his character. I would comment to the fact that counsel, by making constant references to witnesses about what is on Government {3372} exhibits, is trying to leave an impression that I have somehow dishonestly prepared these items of evidence. My job as an advocate is to bring out those items of evidence which I believe are relevant to the case at bar. And counsel knows that he has an opportunity to bring out other items which are relevant to this case when he's presenting his case.
And I would equally resent his constant reference to the fact that in a form that would leave an impression that what I am doing as counsel in this case is in any manner improper.
I would state to the Court that what has been done here is completely appropriate and if apologies are to be made in that regard I think counsel for the defendant has one to make. Other than this, Your Honor, I would simply object to the items which the defense counsel has offered here as falling within the category of 403 and being completely worthless as to this cause of action.
MR. LOWE:  Very briefly, Your Honor. Mr. Sikma completely misreads Rule 803, paragraph 1 and paragraph 2. As I understand the law as it was before these rules, that res gestae was the excited utterance provision down below in 2. Paragraph 1 clearly anticipates not only observations made while perceiving the event, but also statements describing the event immediately thereafter.
I don't think that there's any question that that is {3373} what is intended when somebody makes a report such as Ann Johnson's writing radio notes, such as this witness when he makes notes. But be that as it may, that's only one of the basis. He clearly misreads Rule 612, or misunderstands the nature of cross-examination. Cross-examination is also testimony. Cross-examination, where proper questions not objected to, elicit information; means that that information becomes testimony and is a proper basis for introducing documents under Rule 612. I asked a number of questions about the all-inclusive nature of the items found in the Jumping Bull area, and whether they were included in these reports. And obviously they are, and that's what the witness said. That by itself provides a basis for showing the various items that were found in the Jumping Bull area.
There were repeated questions about whether there weren't a lot of items which could be matched up or could be excluded, and others which simply were unable to be identified because there were no weapons, or because there were insufficient markings; and the witness identified them as being the substance of much of what is contained in these reports.
There's clearly enough basis under Rule 612. It's not necessary that it be brought out on direct examination but simply during testimony. Mr. Sikma is asking the Court, and I trust he'll ask the jury, to take flights of fancy with {3374} regard to the cartridge casings found at Al Running's and found at Ontario, Oregon which have been linked with the handguns of the agents. There's no question that they were linked to the handguns. But I think that 99.99 per cent certainty as to how those cartridges got there is that somebody was shooting that gun at Al Running's, or shooting the gun at Ontario, Oregon, or somewhere along the road. And then when they emptied the gun they took out the six empties and put in six more. They thought that somebody would have fired those guns in the area of Coler's car and then exactly multiplies the number of chambers of the gun and carried them off and left others there and carried them to Al Running's into Oregon simply boggles the mind.
That I think is going to be interesting to hear in Oregon. Now, I did make one erroneous statement. I indicated it on one exhibit. I want to make sure the record is clear that the exhibit I'm introducing, 113 is '76, not '75.
1/6/76, 2/4/76 and 2/10/76. The Clerk is trying desperately to sort these so I can formally offer them by number. And they are done, so I will read the numbers if I might into the record, Your Honor.
THE COURT:  Are these the --
MR. LOWE:  These are the documents that are being offered, Judge.
THE COURT:  The laboratory reports.
{3375}
MR. LOWE:  Yes, sir, the laboratory reports.
THE COURT:  All right.
MR. LOWE:  Couple of them here I've already mentioned. I mentioned 134 and 135. The October 16, 1970 report is Defendant's Exhibit 188. The December 4th, 1975 report is Defendant's Exhibit 189. The January 13th, 1976 report is Defendant's Exhibit 187. The January 16th, 1976 report is 190. The February 4, 1976 report is Defendant's Exhibit 191. The February 10th, 1976 report is Defendant's Exhibit 192.
Now, I offer these and I would also state to Your Honor that I found one or two markings on these reports that were photocopied onto the report also. And what I would suggest is that we get, counsel and I get together, or the Clerk and I get together and go through page by page and just make sure that there are no markings of any kind in here. I do not believe that there are any, but I am hesitant with these many pages to make a representation until I have checked it independently.
May I ask the Clerk to hold them in a stack and go over them and make sure there are no handwritten notations that have come through that I was not aware of that are not on the original reports?
I also at this time will tender 185 and 186, and I believe Mr. Sikma still has Government Exhibit 177. And the Clerk just asked me where it was, and I think the Clerk wants {3376} it since it has been offered now. May I give that to the Clerk so that he has it? Thank you.
MR. HULTMAN:  Your Honor, I might just make a request for the record, in the future, we've done our best because the defendant's case is now about to come on, we've been running into this every time we turn around. But I would hope in the future that the Government will be supplied with a copy of whatever exhibits it has that we're going to discuss and take up prior to that particular time.
And I just make this request at this time so that we won't be placed in the posture of having to --
MR. LOWE:  That's a very reasonable request, Your Honor. The only two items the Government does not already have are the two lists which I showed on the screen which I did show to Mr. Sikma before we began our proceedings here and he handed it back to me. All of the other reports were reports given to us by the Government.
Mr. Sikma has a complete file of them as I understand, and Mr. Hodge has a complete file of them. So whether Mr. Hultman has them in front of him or not, if you'll consult with Mr. Sikma I'm sure he'll find they're all there.
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MR. HULTMAN:  Your Honor, the reason for my request I think is the voluminous materials. That's why Counsel continually asks us to give them a copy of this one page out of the 285 page report so we know what we're talking about. I think it's only fair and only customary and within the Rules that whether or not the government was the one who originally gave it or not, so we might orderly proceed, that at any time that a given exhibit is going to be marked as an exhibit that the government be given a copy of it prior to that time so we will be able to at that point not have to go to another office or somewhere or search a file but to have the copy of a specific exhibit that's not going to be used in the presence of the Counsel. That's the request I am making and I would hope it will be complied with as the trial goes along.
MR. LOWE:  As I said, if Mr. Hultman will look 14 inches to his left, during the morning and now, Mr. Sikma has in front of him a stack of all these reports, copies of which the government gave to us. I don't think I ought to be asked to copy whatever number pages that is and hand them back to him when Mr. Sikma has them in front of him on the table.
THE COURT:  Did you have some additional voir dire of this witness?
MR. LOWE:  I've got more questions but I want in my {3378} offer of proof I think Your Honor understands I first of all made the offer of what the proof was that would be shown here and also I would lay the additional foundation that's not already laid under these various provisions. I was about to ask him some questions about whether they're kept in the ordinary course of business or something as to all of these reports. I only asked him about that, I think, with regard to one or maybe two reports earlier. That's what I will do if the Court does not prevent me from it.
THE COURT:  You may do it right now.
MR. LOWE:  Well, all right.
As to these reports that we've identified, and I'm sure with all your other reports, are they documents which are prepared in the ordinary course of your laboratory activities pursuant to procedures which are regular procedures of your laboratory?
THE WITNESS:  Yes, sir. I'm not sure exactly which report you're referring to.
MR. LOWE:  All right.
May the witness see the reports.
I hand you a stack of the reports which were just read into the record and you can read the numbers on them if you care to but, the reports which have been offered. Are those all prepared in the ordinary course of your laboratory {3379} activities pursuant to your normal procedures?
THE WITNESS:  Yes, sir. The laboratory reports are contained in here.
MR. LOWE:  Yes. And do you keep copies of those as a part of your laboratory permanent records as well as dispensing copies to appropriate agencies or persons?
THE WITNESS:  Yes, we do.
MR. LOWE:  And as to the information contained in there, would it be fair for me to say that the information is information which you at one time knew as you were doing the examinations and comparison but you do not presently have a direct recollection of?
THE WITNESS:  Well, for the most part there are some things which I do have a direct recollection of. However, obviously, for the most part of it I do not.
MR. LOWE:  And is it a fact that these reports are among those which you indicated that you read preparatory to your giving testimony in this case?
THE WITNESS:  Yes, sir. Those would be some of the reports.
MR. LOWE:  And in fact you referred to a number of them while you were testifying, did you not?
THE WITNESS:  Yes, I did.
MR. LOWE:  And I believe you said that when you received items, made comparisons and tests, you reported them {3380} in these laboratory reports as to items that you found in the Jumping Bull area and sent them out as you received the items and made the tests so that these reports cumulatively would have that information therein?
THE WITNESS:  I don't think I understand, sir.
MR. LOWE:  Let me rephrase the question.
THE WITNESS:  Please.
MR. LOWE:  It got a little complicated, I realize.
Information that you obtained by comparing cartridges, bullets, weapons and other items in the pursuance of the investigation of this case as a result of items that you received in your laboratory is recorded in these reports both as to positive information and in some cases as to negative information and in some cases that there is insufficient evidence upon which to base a finding, am I correct in that?
THE WITNESS:  Yes.
MR. LOWE:  At the time you made the reports, they contained, the information contained in them was as accurate as you knew and believed was possible to obtain at that time, am I correct on that?
THE WITNESS:  Yes. The reports also contained findings of other specialists within the laboratory.
MR. LOWE:  Right.
And as to those reports, they were, I believe you {3381} said that you issued the reports and you believed at the time and based on your investigation the information you put in the report was accurate as to their findings as well?
THE WITNESS:  As to what information they gave me; yes, sir.
MR. LOWE:  And again those reports were prepared pursuant to a laboratory policy and procedure which enables you to issue reports based not only on your own findings but those of your subordinates and your colleagues in the manner that you have done here?
THE WITNESS:  Yes.
MR. LOWE:  Your Honor, based on the witness' statements in evidence here we would offer these exhibits for all of the reasons that I stated earlier without going into them in detail at this time.
THE COURT:  As I understand it then you are offering 134, 135, 177, 185, 186, 187, 188, 189, 190, 191 and 192?
MR. LOWE:  Yes, sir. Those are the numbers I read off.
THE COURT:  I'm obviously going to want to look at those reports before I rule on this offer.
MR. LOWE:  I have no objection, Your Honor, to holding that offer. I can finish with this witness as long as the Court has it under advisement. I don't ask the Court rule before I proceed any further. I would be willing to go ahead and finish my examination. {3382}
@@THE COURT:  Very well.
Are Counsel then ready for the jury?
MR. LOWE:  I am.
MR. SIKMA:  Yes, Your Honor.
THE COURT:  Jury may be brought in.