All right. Back on the record in the Simpson matter. All the parties are again present. The jury is not present.
Good morning, your Honor. Just one second. I'm asking Mr. Harris to actually get a couple of boards which are apparently not up here, so I'm going to show him the photographs of the boards.
Our next witness is Professor Herbert MacDonell and there are a couple of points I wanted to get out of the way first, your Honor, in the nature of 403 and in limine matters. First of all, I think you may recall I mentioned in front of Miss Clark yesterday that this witness will not be testifying at all to any crime scene reconstruction at Bundy, and I believe therefore that would be beyond the scope of cross-examination and I wanted to have that issue resolved before I called the witness. Because it doesn't go to impeachment and he is not their witness, he is our witness, so that is the first issue. The second issue, your Honor, is that as you know, Professor MacDonell conducted a glove shrinkage experiment, and although that may open the door to the Prosecution conducting his own glove shrinking experiment with the gloves that they have, I don't believe it opens the door to displaying other photographs that they have or purport to have of Mr. Simpson wearing leather gloves in different places. One has nothing to do with the other. This experiment is being--I'm sorry. This experiment is being introduced for a very limited purpose so I would like a ruling on that. And third, your Honor, I would ask for a ruling in advance of me calling this witness as to which cases the Prosecution will be entitled to bring up on cross-examination. I'm not asking for transcripts now. I'm just asking for certain cases, because, umm, Professor MacDonell has been involved as an expert witness on behalf of the Prosecution and on behalf of the Defense in many well-known cases throughout the country, and I want to make sure that if other cases are brought up they are brought up because they are in fact relevant and probative, either directly or for impeachment purposes, and they are not simply brought up to create innuendoes about his involvement in one case as opposed to another case, because of the name of the victim or the name of the Defendant, which would be completely irrelevant in these proceedings. And that is why I'm asking for a ruling in advance of which cases the Prosecution intends to go into.
I don't really understand how counsel can require us to state what we intend to use to impeach a witness who has given us no report, who has given us no indication of what he is going to testify to. We are here in the blind, as the Court is well aware. Certain topics have been referred to that he will address this topic or that topic, telling me nothing of what he intends to say about that topic. And in view of the fact that they have determined it is appropriate to keep us in the blind and not tell us what he intends to testify to, I cannot be in a position to accurately inform them of what I intend to impeach. That is what I have to say about the cases that we intend to use. I don't know. If he would tell me what he was going to say, if counsel had been forthright and candid about what he was going to testify to and what his conclusions would be, I might be in some position to help them, but I can't. With respect to the crime scene at Bundy, again, how do we know what he is going to say? Some comparison to the blood drops at Bundy or something present at that crime scene might be relevant impeachment given some conclusions he makes about what he sees at Rockingham. And until we hear that, we don't know. This is what they have bought into by failing to tell us or give us any reports as to his conclusions. How can I know what I'm going to use to impeach or ask to use to impeach? With respect to the glove photographs, I think photographs or any evidence that is relevant to impeach the experiment that they undertook to conduct is I think fair game. They have undertaken an experiment in which they took a brand new pair of gloves that fit Mr. MacDonell very differently than the gloves fit Mr. Simpson when they were first purchased for him by Nicole. And all of the differences that are also accounted for by the fact that new gloves were used in their experiment and old gloves were obviously the ones used in the crime should obviously be fair impeachment, not to mention photographs that may depict the conditions that those gloves were subjected to. Counsel can't have it both ways. You want to come in and use an experiment that is so easily impeached by the dissimilarity of the conditions, then this is what happens. The dissimilarity of the conditions should be brought forth to show the jury that this is worthy of no weight. Can't have it both ways, though, and try to insulate yourself in cross-examination, which is basically what counsel is asking to do. We want to put this evidence in, but you can't impeach us. That is not the way the law works, so that is our response. I think that any relevant impeachment should be allowed, but until we know what he says, we don't know what that is.
May I also address the Court on another matter? And that is, the expert has given us no report on his conclusions concerning that he saw at Rockingham, what he saw in the Bronco, photographs. I think the only notes we even have are the glove drying experiment. That is the only thing that they intend to present from him that we have some kind of written material on and the observations of sock A, so really it sounds to me like the bulk of his testimony is unreported and unnoted in any document. In light of that fact, your Honor, the People have--have no chance to prepare and in order for the People to have the right to a fair trial and to be prepared to adequately cross-examine and confront the witness--I think I'm asking the Court leave under the old laws--there is not even under the new statutory discovery laws which compel counsel to produce discovery--even under the old laws when an expert testified and gave late discovery of a report or no report, the People would be entitled to some time to prepare for cross-examination and not be required to stand up and cross-examine immediately after direct was concluded without having had some adequate opportunity.
Isn't that an issue we need to address after we hear further direct examination to see what the extent is? I mean, who knows? Mr. MacDonell present may evidence that you are completely adequately equipped to address.
Well, given the fact that two of the major areas they intend to address have no reports or notes, I can't imagine that being the case, but I get that the Court wants us to wait on this.
Well, you are asking me to make a premature judgment as to what is going to be there. It may be something so simple and logical to deal with that even I could do it.
I don't share the Court's--the humbleness of the Court's self-characterization, but we will wait and see.
KEY QUOTEAll right. Mr. Neufeld, in answer to your questions, without hearing the testimony, it is hard for me to circumscribe or give you a ruling with regards to the scope of cross-examination. With regards to Bundy, I agree, under normal circumstances, if you don't present any testimony as to any evidence at Bundy, then that is probably not fair game, but if there is a comparison, for example, between blood drops at Rockingham and their appearance, versus the blood drops at Bundy and if there is any difference, that becomes relevant, that might be fair game. With regard to the glove shrinkage, you have asked me to--some concern about pictures of the Defendant wearing gloves. You know, as we pointed out in our discussions about gloves, you know, the experiment was conducted on a new pair of gloves. There are pictures of Mr. Simpson that the Prosecution has alluded to wearing gloves in winter weather which may be one of the factors. You know, snow, moisture may be one of the thing you have to take into consideration as to whether or not gloves are going to shrink over time, I don't know, but before that is broached in cross-examination I'm going to ask Miss Clark as to any cross-examination regarding the Bundy crime scene, any photographs of the Defendant wearing gloves and any transcripts that you might have on other cases that Mr. MacDonell has testified to, I want you to notify the Court and approach so we can ask it before we go any further.
One is, as you know, there were reports turned over about the bulk of what Professor MacDonell will be testifying to, and I conveyed to the Court and to the Prosecution that that is the reality of what you are going to hear and I assured the Court once it is that. It is that. And for the People to make this assertion that they have no reports and no notes really isn't a fair statement.
Counsel, as I indicated to you, any request for continuance for the request for preparation is a moot issue until after I hear the witness.
We are here in the blind, as the Court is well aware.
Counsel can't have it both ways. You want to come in and use an experiment that is so easily impeached by the dissimilarity of the conditions, then this is what happens.
It may be something so simple and logical to deal with that even I could do it.
I don't share the Court's--the humbleness of the Court's self-characterization, but we will wait and see.