Commonwealth v. Read — Trial ArchiveJoseph Paul - Voir Dire
270 linesJUDGE CANNONE: Please be seated. All right. So, Trooper, we're going to have a voir dire of you, sir, where Mr. Lally is going to ask you some questions, Mr. Jackson's going to ask you some questions, you'll be shown a video. Okay?
MR. LALLY: All right. Now, Trooper Paul, as I was asking you before, uh, with respect to — um, have you had occasion to see a Ring video from Mr. O'Keefe's house at one Meadows Avenue depicting the defendant, uh, or the defendant's vehicle backing out of a garage while snow was [unintelligible]?
MR. LALLY: Now, in addition to that, as we've already testified to, uh, you made observations of the defendant's vehicle in the uh, Canton Police Department Garage on February 1st. Is that correct?
MR. LALLY: Um, and, Your Honor, with the court's permission, uh, maybe we play the video at this time.
MR. JACKSON: Yes, Your Honor. To save time, I'll stipulate to the video. I want to see it for purposes of this voir dire, and in fact I'd like to see the version that the defendants have with the focusing on the tire.
JUDGE CANNONE: Understood. Both — go ahead. Miss Gilman, you show yours and then I'm going to ask for the defense.
MR. LALLY: Now, Trooper, from your observations from this video, at some point this vehicle either comes close or makes contact with Mr. O'Keefe's vehicle. Is that correct?
MR. LALLY: Now, in addition to uh, your observations of this video and your observations of the defendant's vehicle, at some point have you also seen photographs of Mr. O'Keefe's vehicle?
MR. LALLY: And is your understanding that those photographs of Mr. O'Keefe's vehicle were taken by State Police Photography and Services on February 3rd? Is that correct?
MR. LALLY: Now, with reference uh, to your observations of this vehicle, what I'm going to ask you is in regard to uh, the observed significance of the impact between the two vehicles, in respect to Mr. O'Keefe's vehicle — what if anything did you observe uh, on his vehicle at that time?
MR. PAUL: At the — the photos right now — uh, right now, right now — uh, there was snow on the vehicle.
MR. LALLY: And then with respect to the contact between the defendant's vehicle and uh, victim Mr. O'Keefe's vehicle, what if anything did you observe to occur with relation to the snow, based on the significance of the impact between the two?
MR. LALLY: And, Miss Gilman, if you could press play, this —
MR. JACKSON: All right, can I see the other video?
MR. LALLY: Please. Yes. I — I think it's on — I know it's in evidence, but I think it's on your computer, your hard drive.
JUDGE CANNONE: All right, thank you. Okay. Could you turn the lights on, please?
MR. LALLY: Your Honor, if I could — there's just two photographs that I'd like to — sure, for that purposes. Uh, Miss Gilman, if I could have what's now been marked as Exhibit 549.
JUDGE CANNONE: And before you do that, um, what is the exhibit we just saw through your IT person?
MR. LALLY: The same exhibit. Uh, it has not been enhanced in any way. It was just magnified for purposes of showing. In other words, the magnification is not embedded in the video. Same video.
JUDGE CANNONE: Okay. We just magnified it. Okay. All right, thank — — you. Go ahead, Mr. Lally.
MR. LALLY: And, Trooper, do you recognize what's up on the screen now?
MR. LALLY: And what are we looking at, and in which area of the vehicle are we looking at?
MR. LALLY: Is that correct?
MR. LALLY: And what if any relationship does this portion of the vehicle we're looking at here have in relation to the video that we just watched?
MR. PAUL: Um, it was — well, it was faced kind of the same way. You see the back left rear corner of the vehicle as you do in this picture here.
MR. LALLY: And, Miss Gilman, if I could have what's now been marked as Exhibit 559. Sir, is this the same uh, driver side rear of Mr. O'Keefe's vehicle?
MR. LALLY: Now, as far as uh, your observations of these photographs, uh, what if any damage did you observe to Mr. O'Keefe's vehicle in either the last exhibit or this exhibit itself?
MR. LALLY: Now as far as the uh, impact — uh, let me ask — as far as the damage that you observed to the tail light area of the defendant's vehicle, uh, what if any opinion do you have as to the uh, amount of force uh, necessary uh, in order to cause that damage?
MR. JACKSON: Objection.
MR. LALLY: We need a foundation on this. So, Trooper, over the course of your — I'm sorry — how many uh, crashes have you investigated over your time?
MR. LALLY: And I know I'd asked you before about pedestrian crashes. Fair to say most of the remainder, if not all of the remainder, involves vehicles colliding with other vehicles? Correct?
MR. LALLY: Now with respect uh, to that experience in relation uh, to uh, vehicle crashes, uh, what if any uh, training or knowledge do you have in regard to uh, sort of physical forces uh, of vehicles in a collision sequence and what kind of damage you would anticipate?
MR. LALLY: Um, and uh, what if any — um, from the observation uh, that you made in that video, and the observations uh, that you made of the defendant's vehicle — was what you observed in the video consistent with the damage that you observed uh, to the defendant's vehicle?
MR. JACKSON: Objection.
JUDGE CANNONE: So I'm going to allow this. I just need to hear this information. Understood.
MR. LALLY: And why not?
MR. PAUL: Uh, one thing — the tail light is, what I'd say, 42 to 50 inches off the ground, so that vehicle would have to have damage 42 to 50 inches off the ground, because they would have had to contact each other at the same distance from the ground, and there's no — there's no damage to that vehicle. Um, so if the tail light breaks, it should leave some sort of scratching, maybe a dent — something — some sort of damage to that vehicle should have occurred.
MR. LALLY: And with respect to — um, I think you just answered it. So, as far as uh, Mr. O'Keefe's vehicle, what kind of damage would you expect from an impact significant enough to break the plastic on the tail light of the defendant's vehicle?
JUDGE CANNONE: For purposes of voir dire, I need to hear all. Go ahead.
MR. PAUL: A higher speed than what we probably would have seen in there. If — if not, it was minimal, maybe it would crack a tail light or something like that. But it wouldn't — I mean, the damage is different. Um, and also, you know, there — we have a bumper that's also in the way too.
MR. LALLY: And to that point — when it comes to a bumper from a functional standpoint, what is a bumper and what does it do with respect to a vehicle and a collision sequence?
MR. PAUL: Um, the bumper is — you know, it's basically meant as another cushion to absorb the impact from one vehicle to another vehicle. Um, and it kind of sticks out to kind of also preserve whatever — you know, tail lights and everything else — from damage on top of it.
MR. LALLY: So, from your experience as far as responding and investigating collisions, uh, specifically collisions between motor vehicles, um, the speed that you observe the defendant's vehicle traveling in that video — what if any relationship does that have, specifically as to the bumper, as to the damage that you observe on the defendant's vehicle?
MR. PAUL: Um, so if you look at the defendant's vehicle, there is a scratch mark that starts along the left side from her bumper around the rear that could be consistent with his bumper — that would be around the same height level. Um, they also — he has a little ridge there on his bumper, so that bumper could have been hit at that little ridge. Um, and also the bumper itself here is a different material — hers is a little lighter, like a glossy colored paint. This is more a duller flat finish, so it might — that's why it would show up on her bumper more than it would show up on his bumper.
MR. LALLY: And uh, finally, sir, in your opinion, um, the damage to the defendant's tail light — is uh, is that something that could have occurred or could have been caused by the crash, or the contact of the vehicles that you observe?
MR. JACKSON: Objection.
JUDGE CANNONE: No. So again, this is voir dire. Mr. Jackson, go ahead.
MR. LALLY: And again, sir, why not?
MR. PAUL: Um, for one thing, the bumpers — you have to push through the bumpers in order to hit the tail light against the other vehicle, and there's no — no significant damage to a bumper in order — to push back into the car.
MR. LALLY: And again, there was no snow on the vehicle — by that I mean Mr. O'Keefe's vehicle — that even came off the vehicle that you observed during the course of that contact between the two vehicles.
MR. LALLY: I have nothing further.
JUDGE CANNONE: All right. Mr. Jackson.
MR. JACKSON: Did you ever put the two cars together?
MR. JACKSON: No, you didn't — did you? You didn't. You never tested whether or not the SUV would match up with the Traverse, did you?
MR. JACKSON: You just said, "Oh, look, one of them has matte finish, one of them has glossy finish, so it could have happened," right?
MR. PAUL: No, I didn't. I'm confused by the question. I'm talking about the tail light. We're talking about the tail light.
MR. JACKSON: Are we talking about the bumper?
JUDGE CANNONE: So, one person at a time — you both are talking over each other.
MR. JACKSON: You started talking about the bumpers — yes. You said, "Well, one has matte finish and one has gloss finish," right?
MR. JACKSON: You said, "Well, you'd expect one of them to like slide off of each other, and they could have done this and they could have done that," right?
MR. PAUL: Not slide off each other. You were suggesting that the two cars wouldn't match up such that the tail light could make contact with any part of the Traverse — that's what you were suggesting. I'm saying it didn't match up because there's no damage to the Traverse.
MR. JACKSON: You didn't test whether or not the lens — the right rear lens on the SUV — could match up to any part of the Traverse, right, and make contact, physical contact with it, right?
JUDGE CANNONE: This is a voir dire. I need the information, Mr. —
MR. JACKSON: You asked me a question — no — question, Trooper. I don't think so. But —
JUDGE CANNONE: Mr. Jackson — just — there's no jury here. This is for purposes of what I have to rule on. The more information I have, the better off I am in being able to rule on. Take a breath. So this is — and this is — this is you trying to keep the evidence out — so you want to give me the information. Understood.
MR. JACKSON: Did you or did you not ever do a test where you backed the Lexus up against the Traverse?
MR. JACKSON: Did you or did you not ever do a test where you put the two cars together and measured them?
MR. JACKSON: Did you ever measure the tail light of the SUV — the black SUV — against any area on that Traverse?
MR. JACKSON: Did you ever do any force multiplier tests to determine the forces necessary to crack the SUV's convex tail light?
MR. JACKSON: Did you ever do any testing to determine whether or not a plastic tail light — under how much pressure a plastic tail light would need to be subjected before it would crack?
MR. JACKSON: Did you ever do any testing to determine whether or not, if a plastic tail light came in contact with a metallic portion of another SUV, whether it would leave any mark?
MR. PAUL: Haven't done any test, and I've seen crashes where headlights have struck other vehicles — that's kind of where the experience comes from.
MR. JACKSON: Fair enough. But those — I'm guessing that those crashes are probably at different speeds, and higher speeds — not this, right?
MR. JACKSON: So, have you ever had a crash where you've investigated — the Massachusetts State Police has been brought in to investigate a crash where the car was going in reverse at about a half a mile an hour — half a mile an hour — whatever that was?
MR. JACKSON: Well, you're the Reconstructionist — give me an estimate of how fast you think that SUV was going at the point of contact with the Traverse.
MR. JACKSON: Okay, fair enough. Have you ever been called in to a crash to investigate a crash where the cars have collided at one mile an hour — at one —
MR. JACKSON: Okay, that wasn't my question — that wasn't quite my question. Okay, my question is, have you been called in to a crash involving two vehicles — yeah — that have made contact at about a mile an hour?
MR. PAUL: I have seen testing for vehicles at low speeds. So I haven't been called to a crash like that — I go to fatality crashes — but I have seen testing for vehicles at low speed impacts.
MR. JACKSON: Okay. How low speed? Like just a bump? Like this?
MR. JACKSON: Did you see any damage?
MR. JACKSON: In what circumstances? Minimal damage — like, I don't know — like a cracked tail light?
MR. PAUL: No, like just a little bit of rub — rub off on the paint — or you might see nothing, right?
MR. JACKSON: Yes. You've certainly seen circumstances in which two cars come in contact and there's absolutely no physical damage to either car — nothing observable, right?
MR. PAUL: Have I seen crashes that show no physical damage on a car? Or just in common sense — just everyday life — where one car backs into another car at the Jiffy Lube, makes contact, and drives away, and there's no damage?
MR. JACKSON: Not normally. It's usually something — with car and car impacts. Like, what's "the something"?
MR. JACKSON: Yeah. So if you put a piece of metal — in that scenario — if you put a piece of metal, steel — right — against a piece of plastic, which one do you think is going to give way first?
MR. PAUL: You'll still see some damage to both vehicles at some speed. Which one would give way first — between metal —
MR. JACKSON: Depends what speeds. And what are we talking about? You're just saying plastic and metal — you're giving a pretty broad plastic-and-metal analysis here. You'd admit — you've got to agree with me — that there are circumstances in which low speed, very very low speed contact between two cars can certainly leave damage on one and not damage on the other, damage on both, or no damage on either one. Observed?
MR. PAUL: Yes. Actually, I just said — in that situation where the scratch on the side of her car, right, had a scratch mark and his doesn't appear to have anything. And
MR. JACKSON: You said, under questioning by Mr. Lally, that certain circumstances like this could lead to a lens material — right — plastic material cracking, right?
JUDGE CANNONE: Sorry, sorry. Yes — Mr. Lally asked you a question a few minutes ago, and you indicated that something might show up on a bumper — something might —
MR. PAUL: I'm sorry, I'm sorry. Something might — like a tail light — might actually crack. Correct. In a low speed impact.
MR. JACKSON: A tail light might crack in a low speed impact — correct?
MR. JACKSON: Okay. Now — Mr. Lally also asked you about this video, where the cars come close to or make contact, right? That's how we work the question — remember that — "come close." Yeah. Which one, which one is it — did it come close, or did it make contact?
MR. PAUL: I said it might — I don't know. What if that scratch from the side is — it's something that's consistent with the height of the bumper. Like I said, I didn't measure from side by side, but you can clearly see there's a scratch on the side, and that's something that looks like that would come from there. So, as I look at the bumper, I see the bumper and it has that little divot, and look at her side of her car with that scratch mark — that kind of lines up a little bit of why that could be where that was from.
MR. JACKSON: I thought you said there was no damage on that car — on the Traverse.
MR. PAUL: There is no damage, and that's why I went to the why — there's two different paint materials there. That's why one could have showed up on her car: because it's that flat, the glossy paint on there, and it could have scratched on it, while you have something that's a little rougher texture, like a flat color on there, that wouldn't leave a mark on there.
MR. JACKSON: So you just described the circumstance in which two cars come in contact, you don't see any observable damage on one, and you do on the other.
MR. JACKSON: With regard to the video — let's get back to the question that I asked — which was: in that video, did the SUV come close to, or did it come in contact with, the Traverse?
MR. PAUL: Again, I — I don't know, because I'm saying, based off the damage, that is something consistent with that. So most likely — it did come in contact, bumper to bumper. But I don't know definitely, because there is no damage to his car. But it's something that could explain why there's a scratch mark alongside the right rear side of her car.
MR. JACKSON: Did you see the tire move, sir? Did you see the wheel on the Traverse move in that video?
MR. JACKSON: I beg your pardon?
MR. PAUL: I didn't — I didn't see it move. If I did, I didn't observe it moving. If it moved, it moved — I didn't observe it moving. I wasn't looking at the wheel.
MR. JACKSON: When was the first time you saw that video?
MR. JACKSON: Well, I don't know what "a little while" means. Like a year ago?
MR. JACKSON: So you saw that video a year ago. Did you put anything about that video in your report — right here — I'm looking at your entire CARS report. Did you put anything in that CARS report about watching that video?
MR. PAUL: No, because I watched the video after the report was done. And I honestly — I watched it the first time on Court TV.
MR. JACKSON: On Court TV — during this trial?
MR. JACKSON: No — when it was on TV at some point. When did you and Mr. Lally have a discussion about you testifying about this video?
MR. JACKSON: A couple of weeks ago. What's "a couple of weeks ago" — is it ten days ago, two weeks ago?
MR. JACKSON: Where did you two meet?
MR. JACKSON: Was that at your request or was that at Mr. Lally's request?
MR. JACKSON: Pre-trial conference. Sorry. Done. So yes, we're talking over —
JUDGE CANNONE: I'm trying not to either. Let's both try hard. Okay.
MR. JACKSON: Who set up the meeting?
MR. JACKSON: Who was at the meeting?
MR. PAUL: Um, everybody sitting right here. Lieutenant Tully, Lieutenant Tully, you, Adam Lally, Laura McLaughlin.
MR. JACKSON: I'm guessing Miss Gilman was not there.
MR. JACKSON: Correct. Did Mr. Lally show you this video at that meeting?
MR. JACKSON: Did he tell you that he intended to ask you some questions about this video at that meeting?
MR. JACKSON: Did he ask you whether or not you could render an opinion as to whether or not the impact you saw — or lack thereof, whatever the case may be — was consistent or inconsistent with damage to the tail light?
MR. JACKSON: Did you tell him that you would give him such an opinion if called upon at trial?
MR. JACKSON: Did anybody take any notes?
MR. JACKSON: Were you taking notes?
MR. JACKSON: Where are those notes, Trooper Paul?
MR. PAUL: I think I just — well, notes, not on this specifically, but just, you know, to make sure I had, you know, my everything — checks and balances — and for what I want to talk about, just to make sure I had my checks and balances. Sorry, checks and balances. Just to make sure I'm — I'm more on the same page of what we — what we understand, what's going on in the trial.
MR. JACKSON: You want to make sure that you're on the same page with Mr. Lally about what's going on in trial?
MR. JACKSON: All right. Did Mr. Lally take notes?
MR. JACKSON: You were watching them. I mean, was he writing something down?
MR. JACKSON: Ms. McLaughlin was there — was she taking notes?
MR. JACKSON: You didn't see her either?
MR. PAUL: I don't know if there were people taking notes, writing stuff down, or what — what they're writing stuff down in relation to our — our — our, well, conference.
MR. JACKSON: Did you give him an opinion? We've asked whether or not you were asked to give an opinion and you said yes.
MR. JACKSON: Did you give an opinion at that meeting about whether or not you believe — in your opinion — the contact between the SUV and the Traverse — the Lexus and the Traverse — could result in the damage to the tail light?
MR. JACKSON: What did you tell him in the meeting?
MR. JACKSON: Okay, so what you related to him was exactly what you'd related in this [unintelligible]?
MR. JACKSON: All right. And he — he asked you — sorry, he told you that he was going to ask — "I'm going to ask you to look at the video." Correct?
MR. JACKSON: You're going to be asked a series of questions about that video. Correct?
MR. PAUL: He — he told me about the video and he said, "Okay, this is the video, this is what they think the tail light was broken on, and these are the pictures of the damage to his car that they have." So he asked my opinion on — do you think that's where the tail light would be broken?
MR. JACKSON: And he said — and he told you — you need to make sure that you tell the jurors that couldn't have happened in this impact. Right?
MR. PAUL: He didn't tell me to make sure the jurors — I mean, that's my opinion on this. I — it doesn't appear to have happened in that video.
MR. JACKSON: Did he tell you that it would be helpful to the prosecution if you said that it would be — I'm sorry — that it was inconsistent with the tail light breaking?
JUDGE CANNONE: Jackson, I'm going to allow it.
MR. JACKSON: Did he tell you it would be helpful to the case if you said that?
MR. JACKSON: But you knew it would be. Right?
MR. PAUL: I'm just stating what I saw — my — my professional opinion on what it is. If it — if it looked like it was consistent, I would say it's consistent. It wasn't consistent. Not consistent. I'm not gonna —
MR. JACKSON: I'm sure that's what you say.
JUDGE CANNONE: Okay, so comments are not appropriate for the jury. They're also not very good for me, Mr. Jackson.
MR. JACKSON: Um, did you formalize your new opinion? Because this is a new opinion, right — you've never been asked this opinion before?
MR. JACKSON: Did you formalize this new opinion in any kind of a report — memorialize it in any way?
MR. JACKSON: Did Mr. Lally ask you to create a report of some sort that you then turn over to the defense so that we would know that you have a new opinion that you're going to testify about?
MR. JACKSON: Did you save those notes you took about making sure that you were on the same page as Mr. Lally?
MR. JACKSON: Where are they?
MR. JACKSON: They're in your report?
MR. PAUL: Yeah, as I was writing my report I just kind of, like, just — you know, highlighted the stuff that I want to make sure I memorize and remember from my report.
MR. JACKSON: Okay, I'm talking about notes specifically about this video, seeing this video, and rendering a new opinion about this video.
MR. JACKSON: I see.
PARENTHETICAL: [unidentified]
JUDGE CANNONE: : It's Exhibit 6.
PARENTHETICAL: [unidentified]
JUDGE CANNONE: : Do you want just that video, your honor? And the pictures of the cars — whatever was shown during this voir dire — I would like those emailed to me so that I can look at them this weekend while I'm deciding. Or put it on a flash drive right now.
PARENTHETICAL: [unidentified]
JUDGE CANNONE: : That's what — I'm sorry, I can't hear you.
MR. JACKSON: Did you write anything down about the new opinion that you had come up with related to this video?
PARENTHETICAL: [unidentified]
JUDGE CANNONE: : What — you are unmuted.
MR. JACKSON: And your opinion ultimately, that you imparted to Mr. Lally in that meeting, was that the car did not move and the snow did not move. Correct?
MR. JACKSON: I think that's all I have.
JUDGE CANNONE: All right. Did you want to follow up at all, Mr. Lally?
MR. LALLY: No, thank you.
JUDGE CANNONE: All right, so Trooper, you are all set for today. We will see you Monday morning. Thank you. Okay.
JUDGE CANNONE: All right, so you're moving to exclude this. I'll hear you, Mr. Jackson.
MR. JACKSON: It's very clear that this is a blatant violation. The Commonwealth has at least the obligation to provide us with any new opinions that any expert is going to testify to on direct examination. They've known about this witness — not months — for a year, for a couple of years. They've known exactly what this witness has — has — memorialized in his official report. They knew that the only thing that we have was the official report. They met with him two weeks ago. This has become a pattern of conduct by the Commonwealth, over and over and over. We're finding these witnesses getting on the stand — finding out that there's been a sort of preemptive strike in some sort of a prep interview where they're coming up with new opinions, new conclusions, new facts.
MR. JACKSON: It happened with Jennifer McCabe — this new fact about coming up, going to Michael Lank's house. It happened with Officer Saraf — coming up with a new determination about what was said or not said at the scene that we had never heard before. That was also a prep session of some sort, or I believe it was. And then this witness — literally, it's not even like "just, was it light out or was it dark out?" — this is a completely new opinion based on evidence that we presented — both in our opening statement and have presented variously throughout this trial — and this officer gets on the stand and now has a new central opinion about whether or not we're right and that tail light lens could be cracked. That's something that should have at least been reduced to writing.
MR. JACKSON: And even if it was reduced to writing, it should have been excluded because it's a discovery violation. It's late. We don't have time to prepare for it and we're caught off guard. I use the word at sidebar — "ambush" — and I know that that wrinkles the court and the
JUDGE CANNONE: That's been used both ways. Yeah. Right.
MR. JACKSON: So it — it's a word.
JUDGE CANNONE: Let's just take it out of here. Make your point. Okay.
MR. JACKSON: I'll see if I can come up with a synonym for it.
JUDGE CANNONE: Well, I understand your — I understand your argument. So focus on — just continue where you were. But no comment on whether I like "ambush" or don't like "ambush." It's a word. I've heard it a lot — from both sides.
MR. JACKSON: I understand, Your Honor. My point is the evidence that now is being sought should never be presented in front of a jury. We didn't have opportunity to get this in advance. This has — it's at the very least been in the Commonwealth's possession for weeks. He took notes about it. He now says, "Well, I didn't take notes about that specifically." I don't believe that as far as I can throw it. I think he did take notes about it. He was shown the video, he provided a new opinion, Mr. Lally knew that he was providing a new opinion, and then the first time he discloses this opinion is in front of the 16 jurors — 15 jurors. We would ask for its exclusion, Your Honor, and I'll submit.
JUDGE CANNONE: All right. Mr. Lally?
MR. LALLY: Yes. As far as the pattern — especially coming from counsel — I simply find it laughable. As far as Officer Saraf, I think what counsel was referring to was in his grand jury testimony. He was crossed about whether or not it was in his report, but it was in his grand jury testimony. As far as Ms. McCabe is concerned, that was regarding reciprocal discovery that was given to the Commonwealth weeks into trial by the defendant. It was — that shown to a witness, which is perfectly permissible. Counsel asked a question of Miss McCabe on cross, and she was aware of the material based on the late disclosure of reciprocal discovery. So there's no violation there. And why I say laughable, Your Honor, is that I am still —
JUDGE CANNONE: I don't — I don't like hearing you say "laughable." Just stick to what the arguments are. And with respect to this witness — hold on. Quit the finger pointing, name calling, things like that, please. I know it's been a long week. It's been a particularly long day. But just focus on what you want to argue to me.
MR. LALLY: And I apologize to the court for that, Your Honor. With — with respect to this testimony — it is well within his realm as a crash reconstructionist. This is a witness who has responded to and investigated hundreds of crashes involving damage to vehicles, simply making an observation of contact between two vehicles, or purported contact between two vehicles on a video. The force is self-evident. And whether or not that force is sufficient to cause the damage that he personally observed on the defendant's vehicle, as well, is within his expertise and should be permissible — as far as for that witness to be able to testify to—
JUDGE CANNONE: What about the non-disclosure to the defense — showing this video and asking for an opinion? What about that?
MR. LALLY: What I would say is that I did not show this video and ask this opinion. This is a video that actually the trooper mentioned to me that he had seen over the course of while the case was pending — probably over a year ago — that he had seen that video. What I showed him was the photographs of Mr. O'Keefe's vehicle, and asked whether or not he observed any damage consistent with the damage to the tail light, or popping up on Mr. O'Keefe's vehicle.
MR. JACKSON: Why was it that in hindsight it should have been, your honor?
JUDGE CANNONE: All right. So it's late. I'm not ruling here. I want to review everything. I would like — if it's possible — for what your IT person did on the expanding, like he did the second time. Maybe I missed it, but I didn't see the tire move this time. So I'd like that. I'd like that video, and I would like — what's the exhibit number here?
MR. LALLY: We'll do a screen record and get it to the court by email. We can do that. I just need an hour once we get back to home base.
JUDGE CANNONE: Okay. All right. Miss Gilman, will you burn what you have for me before we leave?
MR. JACKSON: If I could — I just want to close one loop. What I was referring to with Miss McCabe — I want to make sure that this is clear, because this has come up a couple of times. What I was referring to with Miss McCabe is: after Miss McCabe testified — days and days and days after she testified and she was excused as a witness — then we got the report from Lieutenant Tully about the new information that she disclosed on the witness stand. In other words, she was cross-examined about it, etc., and then after she testified and was cross-examined and gone, then we got a report that predated her testimony that was in the possession of the Commonwealth — or at least in the possession of Lieutenant Tully. That's what I was talking about. I just wanted to make sure the record is clear.
MR. JACKSON: We don't need to go into it.
JUDGE CANNONE: Did you want to add anything to that, Mr. Lally?
MR. LALLY: No.
JUDGE CANNONE: All right. So I'll see you Monday morning.