NOTE: The audio picks up abruptly, so we have to rely on the abstract for the initial portion of this hearing outside of the presence of the jury.

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DAVIS: There was previously a motion in limine filed by one of the defense attorneys to keep out any reference to Luminol. (TR 2235) At this point and through numerous witnesses the question has been asked by defense counsel of the officers that they didn't find any evidence of blood at the scene. Based on the decision in Brenk that Luminol is a presumptive test that is normally not admissible. However when the defense, knows that there has been a test done which to some extent indicates the presence of blood at the crime scene, when they persist in asking the question, if there is any evidence of blood at the scene, they have opened the door with a cautionary instruction that this is only a presumptive test to allow Donald Smith of the Crime Lab to testify that in fact a Luminol-test was performed, and it turned up positive for areas of blood in the ditch bank area where they have questioned and asked people, wasn't it true that there wasn't any evidence of blood there. (TR 2236) In order for basic fairness, when the defense is aware that a test exists of that nature and they ask questions, is there any evidence at all of that, then they have opened the door and created a case where normally inadmissible evidence becomes admissible just to rebut the inference there was no evidence at all of blood at the crime scene.

PRICE: The question that was asked of Ridge and the response that they adduced from Ridge at the Misskelley trial, was, "No blood was found at the crime scene." That was the same question we asked these officers at this trial. The State can't come back now and say that's an improper question. I asked the officers if there was any visible blood so I even qualified my question a little bit different than what the State said. And the State can't come back now and say we've opened the door to the Luminol test.

THE COURT: I'm going to deny the motion to present evidence of the Luminol testing. (TR 2238) If you continue, however, I might change my position that it is invited error to continue to bait the State that no test or effort was made to determine whether there was blood at the crime scene. Luminol was done as we all know. I'm going to rule that the Luminol testing is not credible scientific evidence.

DAVIS: If defense counsel asks officers was there any evidence of blood, the State may feel compelled to ask them what they did at night and what evidence they found.

THE COURT: You might ask that question of the officer on your own peril but if you ask them was there any evidence of blood, that would be an inappropriate question because I think they could properly respond under those circumstances we did some testing.

DAVIDSON: The proper question would be, is there any visible evidence of blood, which there was none.

[AUDIO BEGINS]

FOGLEMAN: It becomes visible when you do, put the Luminol on it.

THE COURT: Well, if they ask the question properly, if there, was there any evidence -- visible evidence of blood at the scene -- then I think that's probably a question that doesn't invite "Yes, we did testing."

DAVIDSON: We'd ask that their witnesses be, um --

THE COURT: Well, you better ask the question right's what I'm saying, because you're forewarned now that if you keep, continue to ask "Was there any testing done?" I'm gonna let 'em put it in.

FOGLEMAN: Your Honor, if they ask if there's any visible evidence and the, and the Luminol makes it visible --

THE COURT: Well, that's, that's the very subject matter that is objectionable -- the fact that Luminol brings it out latently and that it's done in dark and so forth.

FORD: Just to, just to clarify the record. We can ask if there was any visible evidence of blood and that question is proper and does not invite a response of Luminol.

THE COURT: Visible evidence of blood would invoke a proper response of "No, there wasn't." If you ask if any testing was done --

FORD: Gotcha.

THE COURT: -- then you're in trouble.

FORD: One last thing, your Honor, before the State's witnesses begin to testify regarding statements made by Damien Echols, that they be, uh, that the jury be instructed that they are to consider this as evidence only against, uh, Damien Echols and not as evidence against Jason Baldwin. And also that, that, that the State remind its witnesses of the previous ruling of the Court in Osceola with respect to the answers to that questionnaire. John, you know --

FOGLEMAN: I know what you're talking about.

THE COURT: Well, I'm not sure I do, I don't --

FOGLEMAN: Well --

THE COURT: -- there's been so many motions that I can't remember 'em all now.

FOGLEMAN: Uh --

FORD: And your Honor, we would --

THE COURT: To test 'em, is that --

FOGLEMAN: Reference to any --

THE COURT: Oh. Oh yeah, I do remember what you're...

FORD: Lastly, your Honor, um, the State had previously shown an exhibit to the jury that was prepared by George Caster (PHONETIC), who was an engineer, of the crime scene, I think it's the one in blue and green --

THE COURT: Mmmhmm.

FORD: -- and there was an indication that there was a fence that separated the Blue Beacon truck lot from the, from the wooded area.

THE COURT: There is now, but there wasn't then.

FORD: There is now. At the time he prepared the drawing, it would have been accurate to include that fence, but we've gone back and looked at photographs and I'd like -- we'd like to be able to tell the jury that the fence has been removed.

THE COURT: Yes, I, that'd be appropriate.

FORD: Okay.

FOGLEMAN: Well, your Honor, as long as it -- as long as they're not trying to make some inference that we had it put on there to make it look one way and --

FORD: Oh -- I just --

THE COURT: There's been testimony about there's a fence there now and there wasn't at the time.

UNKNOWN: That's correct.

FOGLEMAN: Well, if there's been that testimony and we -- the diagram now reflects there's no, wasn't a fence there, I don't --

FORD: The drawing is only relevant, your Honor, if it shows the scene at the time.

FOGLEMAN: Well, and that's what the testimony was that there was not a fence at the time.

FORD: I just wanna be able to make reference --

THE COURT: You can point that out in your arguments or anything else when you use that exhibit that the fence was not there.

FORD: Okay, that's good.

THE COURT: Anything else? Well, let's take a short recess before we call the jury in.

(RECESS)

(RETURN TO OPEN COURT)