Miss Clark.

Thank you, your Honor.

CROSS-EXAMINATION BY MS. CLARK

Good afternoon, Mr. MacDonell.

Good afternoon, Mrs. Clark.

Good afternoon, ladies and gentlemen.

THE JURY: Good afternoon.

Mr. MacDonell, you indicated that you've authored many articles, correct?

Yes.

And you've written a book that has since recently been revised; is that correct?

Yes. It's been revised twice actually.

And the last revision was in 1993; is that correct?

That's correct.

Now, there was a paper that you presented, sir, as recently as earlier this year in Seattle, is that correct, entitled absence of evidence is not evidence of absence? Do you recall that?

I believe Mr. Kish presented it. I coauthored it with him.

Yes. You are listed on the article as the co-author; were you not?

Yes.

All right. Miss Clark, I'm going to direct you to give a copy of that to Mr. Neufeld.

I'm going to show you a copy as well, sir. Mr. Kish is entitled in this article as your research associate; is that correct?

That's correct.

Let me show you the article, sir, and ask you if you recognize it.

Well, this is the article. It's not been published yet, but it's basically the same thing. I hope it will be published in this form.

That is the form in which you intend for it to be published; is that right, sir?

That's correct.

And you have presented this paper at a number of speeches that you've given; is that correct?

No. I've never presented it. Mr. Kish presented it in Miami in September last year, the same--basically the same thing.

Nevertheless, sir, I suppose you would agree that you--even though he presented it, you coauthored it and you stand by the principles that it espouses, correct?

Oh, absolutely.

And in that regard, sir, with regard to this paper, I want to ask you a series of questions concerning the contents. First of all, I'm going to direct your attention to the first page, the third paragraph, sir. I'm going to explain to--

Objection. May we approach?

Yes, with the court reporter please.

Let me see the article.

This is the paragraph they're looking at. May I be heard?

All right.

We're way beyond the scope. The entire direct examination was limited to the sock. I didn't do anything but the sock. I didn't do crime scene reconstruction with this witness. I didn't do bloodstains at Rockingham and Bundy. I didn't do amount of blood at the scene, would you expect to see blood on the Defendant. I didn't do any of those other subjects. This is outside the scope of the direct examination. He's my witness, and they're not allowed to impeach on an item which I didn't go into. Remember, I even said to you before, your Honor, I said I was not going to go into Bundy, I was not going to go into those kinds of issues, it was going to be very limited direct. In fact, after this morning, it became half as long than it was intended to be originally.

So my direct examination was limited to the sock. And the fact that they want to use this witness to talk about the fact that there may not have been a lot of blood on Mr. Simpson and that's not--evidence wasn't there is not cross-examination. It's not impeachment. It's trying to use this witness on subjects outside the scope of the direct examination.

Miss Clark.

It goes to his expertise, your Honor. Counsel was very broad to bring out all the articles and book that has been authored by this witness. I think I am entitled to go into some of these articles. I'm not asking--I'm not going to do it for an hour, but I think I'm entitled to explore his fund of knowledge as an expert in this field. This paper that he presented, which he prepared with is collateral with one of the areas of his expertise. It's certainly right on point in terms of area of expertise to which he's testifying today.

Keep your voice down.

Sorry.

And the fact that he happens to have testified one single large stain on the sock would not have been anticipated to have much blood on it and instead, has only this one stain to which he's testified very little else is another matter that should be explored with this witness and something he can explain to this jury. But all that aside, I mean this is a publication he's referred to. He is an expert. I'm testing his area of expertise and I don't think that the Prosecution should be curtailed simply because this particular area was not gone into. This is his area of expertise.

Mr. Neufeld.

She's not testing his expertise on the area he actually testified to. He never testified that he expected more blood on the sock or less blood on the sock. He gave no opinion based on the nature of the crimes how much blood would be on the perpetrator. None at all. She's not suggesting--I mean, I think it's completely transparent on the part of the Prosecutor that not for a second is she trying to offer this paragraph and this article to show that he's an expert or to impeach that he's an expert. She's offering this because she wants to use him to go into another subject beyond the scope of direct examination.

Well, your Honor, they raised the conspiracy issue and--

Wait, wait, wait. All right. The paragraph reads as follows: "The complete absence of bloodstains on a Defendant or his clothing is frequently assumed by many to be definitive evidence that the Defendant did not directly participate in a violent act. This is a misconception fostered and exploited by those who have insufficient knowledge and experience in bloodstain pattern interpretation or by those who hope that such an opinion would aid in their client's defense. Explanations for the lack of bloodstaining on an individual who has actively participated in a violent act are innumerable. These include the assailant cleaning up prior to his being apprehended, removal of his clothing prior to committing the act or simply not being stained because spattered blood was intercepted by some intermediate target." The objection is one of scope. The problem is that this testimony from Mr. MacDonell comes in the context of how much blood was there on the sock, and he has opined that the amount of blood that accounts for this particular large blood spot on sock 13-a could have been created by merely one drop of blood. So the amount of blood that's on clothing as a result of this type of situation is relevant within the context of the amount of blood for this one--

I think there's a misunderstanding about why and what Mr. MacDonell was saying with regard to the drop of blood. The reason he said there was a drop of blood at that point was, he was about to give his opinion as to the drying time implied. He has not meant by any comment--there may be 30, 40 or 50 stains on those socks already been testified by Gary Sims. He was simply describing one stain. And the reason the size of it became important, your Honor, was because he was saying given the size, it could not have been a spatter.

No. But, Mr. Neufeld, Mr. Cochran is going to argue that since that stain could have been caused by merely one drop of blood, it didn't take much to create that stain. That's what the argument is going to be. So I will sustain Mr. Neufeld's objection in part. You can't go into every possible explanation as to how much blood is where and why. You can go into how much is on this particular stain.

Well, I would ask they be precluded from actually quoting from this portion of the article because this article is making a much broader statement which is consistent really if you just consider--also, 352 because frankly, your Honor, then I can elicit from this witness, are there other facts that you've looked at in this case, other evidence you looked at which would show this is an exception to this general impression, because remember, even though he's testified about one area, he has looked at much of the evidence in this case. And I would make a 352 objection as well.

I sustained this objection because this is overbroad. You can go into his expertise regarding--expertise as to how much blood is where. If you get an answer that is adverse to this, that is--

You mean I can't ask him about this article?

You can ask him about studies, how much blood gets where during the course of a crime. You can ask them in the context of this particular spot. If you get something different from this, then you can cross-examine.

Wait a minute. Your Honor, I don't get it. I don't get it.

All right, sir. As a general proposition, would you agree that the absence of bloodstains on a Defendant or his clothing which are frequently assumed to be definitive evidence that the Defendant did not directly participate in the violent act is a common misconception that is fostered and exploited by those who have insufficient knowledge and experience in bloodstain pattern interpretation or by those who hope to help in their client's defense? Would you agree with that, sir?

Yes. Yes.

Object to the form.

Overruled.

And that is the subject matter of this article; is it not?

Basically. It's a law school theme. It's not original with us. We just applied it to more specific applications in bloodstain pattern interpretation. It's a general rule, yes.

And as a matter of fact, the absence of blood--even in a very bloody crime scene, the absence of blood on a Defendant or his clothing is not an unusual thing in your experience, is it, sir?

Objection. Beyond the scope.

Sustained.

With regard to the amount of blood you expect to see on a Defendant or his clothing after having committed a very bloody crime, a stabbing such as this one, if you were to fail to see a great volume of blood on that person, would that be surprising to you, sir?

Objection. Beyond the scope.

Sustained.

The view that blood--the absence of blood on a Defendant who has participated in a bloody crime is not unusual, is that one widely held in the forensic community?

Object. Beyond the scope and ask to approach.

Sustained. Sustained.

Sir, you found--you examined these two socks, correct?

Yes, I did.

And you found the one stain which you qualified as being--quantified as being one drop; is that right?

Yes.

In the context of your examination, sir, and based on your experience and your expertise, is it unusual to find such a small amount of blood on the clothing of a Defendant who has just involved himself in a very violent act as you found in this case?

Objection again, your Honor. Assumes facts not in evidence.

Sustained. Rephrase the question.

You examined both socks, correct?

Yes, I did.

And you observed blood; is that correct?

I observed what was tested to be blood. I didn't actually do the testing, but I observed some of it being tested with presumptive tests.

Okay. Other than--well, with respect to the bloodstains that you found on the socks, sir, you found the one stain at the bony ankle area that protruded, correct?

Again, I did not determine they were blood. If they were bloodstains, the stains I found were on more or less the body protruances (Sic), yes, the ankle bone.

All right. Now, the cut-out area, the actual stain itself was cut out of the sock when you saw it, correct?

The center was cut out, yes.

And did you examine that center at any point?

The cut-out wasn't with the sock. I never saw it, no.

So all you ever saw was a periphery, correct?

The periphery and the cut-out area.

The periphery of the cut-out area, sir? Is that what you're saying?

The periphery of the stain within which the cut-out area existed.

Okay. Then the area that was actually removed from the sock, that cut-out, you did not see?

No, I did not.

So you did not see the center of the stain; is that right?

That's correct.

Now, with respect to the amount of blood on those socks, did you characterize--or what might be blood. Okay. The amount of staining that you observed, did you characterize that as heavy staining, sir?

In the area as you came closer to the cut-out area, it became more concentrated. I would not say it was terribly heavy, but it certainly was saturated in some areas.

Uh-huh.

But the overall size of the stain would not tell me it's a heavy staining. It's about what one drop would do. The center would be wet through, and as you go out to the edges or the periphery, it becomes less and less to the point where it's just on the surface, the outside surface of the fibers.

Now, have you seen photographs of the crime scene in this case, sir?

Some of them.

Okay. It was a very bloody crime scene; was it not?

Objection. Beyond the scope.

Overruled.

I've seen photographs of the crime scene, yes.

And would you agree with me, sir, that it was a very bloody crime scene?

It was an extremely bloody crime scene. I've seen several that were bloodier so to speak, but there was a great abundance of blood, yes.

Okay. In your experience, sir, this is a--you know, you've seen other double homicides; is that correct?

Yes, I have.

And so this is a double homicide. You've seen that before?

I have.

And you've seen I'm sure cases in which there were throat slashing with maybe some arterial splurt; have you not?

Yes, I have, many times.

In fact, isn't that the subject of some of your discussions in your book?

Yes. That's one of the classic patterns. It's arterial gushing. There are three subdivisions, but that's a classic pattern.

So that would not be unusual as an aspect of this case, correct?

Objection. Beyond the scope of direct.

Sustained. Let's go back to this sock, please.

Yeah. I'm trying--what I'm--

You know what--all right.

Proceed.

In other words, the amount of blood that you see in this crime scene, you have seen before, it's not unusual?

That's correct.

And the aspects of this killing are not unusual in your experience, you've seen them before, correct?

Objection, your Honor. Asked and answered.

Correct.

Overruled.

And you examined the socks; did you not, sir?

I did.

The--and you indicated before in your--when I just asked you a couple minutes ago that the amount of staining on the socks was not terrific, although in one area, it was more concentrated, correct?

That's correct.

Is the absence of a great large volume of blood on those socks a surprise to you in your experience, sir, based on what you know about what you expect to see on a Defendant who has committed a very bloody crime?

Objection. Again, assumes facts not in evidence.

Rephrase the question, please.

Based on your expertise, sir, and your experience over the years, is the failure to find large globs of blood on those socks unusual in light of the fact that there was a great deal of blood at the crime scene?

Again, objection. Assumes facts not in evidence. There's no testimony--

Overruled. Overruled.

No, it's not surprising at all because there's one basic thing that I don't know and I don't think anyone does; that if a person is wearing long pants, it would cover that area. If they're wearing shorts, it wouldn't. That would be one thing that could intercept blood if it were indeed projected toward the socks. If I stand up, my pants will cover my socks, but not while sitting down. So that's just one factor. There are many factors to consider. And the absence of a lot of blood staining doesn't surprise me, but the presence is what we examine. We speculate on what's not present.

That is correct.

That you should interpret what is there and not speculate what is not there?

Correct.

And so the absence of blood on a Defendant who has committed a very bloody crime is not a surprising thing to you in your experience--

Sustained. We're talking about socks.

The absence of a great deal of blood on those socks is not a surprising thing to you given your experience and your knowledge in this field, correct, sir?

No. Not surprising.

And there can be innumerable explanations for that; wouldn't you agree, sir?

Yes, there can be.

Now, in your--did you only examine the socks in this case, sir?

That is correct. There were I think shoes or boots, but the only thing that I particularly examined was the two black socks or navy blue. I should correct that. I see it as black. My wife sees it as navy blue. I don't think there's a difference.

Okay. So that was really the limit of what you examined in this case?

Yes. As far as the physical evidence is concerned.

Okay. Sir, can you tell us what are medium velocity blood spots?

Well, I don't know. We talk about blood spatter that results from medium velocity impact. If you're referring to that, they are projections of blood that results from an impact that may be consistent with a beating, a stabbing, any kind of action of approximately 25 feet per second, which is a very arbitrary value.

And when you say stabbing, I assume you would also include in that a throat slashing?

No. That would not be the same as a stabbing. A stabbing is simply a beating with a sharp instrument, and a spatter that results is from the impact to the surface where blood has accumulated. A slitting of an artery would produce no medium velocity. It would produce arterial gushing. It might produce some castoffs. But unless you did it very rapidly, you couldn't have medium velocity spatter from a slitting of a throat, for example.

Uh-huh. From a slitting--but that assumes of course that the perpetrator is standing in front to get the gushing or the spatter onto them. If you're standing behind, that would not be the case?

Well, again, that's not spatter. That would be arterial gushing. And it's--it's less likely you would get blood coming from a wound to the front of a person if you're standing behind them than if you're standing in front of them. I think that's basic logic.

Now, what kind of--what velocity of spatter would you expect to see on the perpetrator of a crime who stands behind his victim and slashes his throat?

Your Honor, beyond the scope.

Sustained. Sustained.

Do you recall--what would you qualify--you indicated that you saw some evidence of spatter on the socks, correct?

Objection. That was not his testimony.

Yes, it was. I have the transcript.

Rephrase the question.

You testified on direct that you saw some evidence of spatter on the socks. Do you recall that testimony, sir?

I don't believe I said I saw spatter. I saw what had been described as spatter. If I said I saw spatter, I did not see what I would call blood spatter.

May I have a moment, your Honor?

Yes.

I want to--I'm going to show the excerpt to counsel. Then I'm going to read it to you, sir, and see if that refreshes your memory.

Sir, I'm going to direct your attention to this area right here and ask you to read it and ask you if it does not indicate that you said that you had seen other more convincing evidence of it, referring to spatter.

I can't listen and read at the same time. Yes. I've seen more convincing evidence of spatter in my career, but not the socks.

I think that you ought to continue reading, sir.

Again, I'm referring to blood spatter as it appears not on the sock. I looked at--the best photographs available to me were the infrared pictures. They're small round circles of what could be blood or something else. I think that's slightly out of context, but I can see how you would interpret it to be on the socks.

Well, let me read this entire thing to you, and you tell me how you interpret it. All right, sir?

Certainly.

You were asked by Mr. Neufeld: "In your opinion, Professor MacDonell, is the ankle stain that you saw a spatter stain?" Your answer: "Not based upon the examination that I made of the socks at that time. I did not find any distribution of blood that I could consider a spatter. I have seen other more convincing evidence of it. "Mr. Neufeld: Okay. Now, with respect to ankle staining, I want you to focus on that. In your opinion, was the ankle stain a spatter stain?" Excuse me. "Oh, no. Not the ankle stain. I thought you meant the entire socking." Now--

Yes. And I--

Can you explain to us, sir--well, let me ask you this. Didn't you mean to convey by that that in examining the entire stocking, you had seen evidence of spatter? Isn't that what you meant to convey?

Not at all. I stated that I've seen more compelling evidence of spattering many times than anything on this stocking, particularly in the first part of his question relating to the small transfer stain. Then when he went to the other spots, I disagreed. That is not what I'm referring to. I've seen more on other objects than I have on that sock. And that is--the way you're reading it, it would sound like I'm referring to the socks. But the evidence I've seen does not show spatter on the socks.

But, sir, excuse me. But isn't it--what you said hear, you didn't say that in response to Mr. Neufeld's question. You said--

Wait, wait. Counsel, rephrase the question. That's argumentative.

What you said in response to Mr. Neufeld's question, sir, was: "Oh, no, not the ankle stain. I thought you meant the entire stocking." Were you referring to a stocking in another case?

No. I'm referring to that stocking, and I've seen more compelling evidence of spatter than I have ever seen on that stocking. That's not spatter.

Did you see any evidence of spatter around the ankle stain to which you've testified?

No.

You saw none?

Nothing that I would say makes a pattern of spatter. You don't have one little spot or two making a pattern.

And yet, sir, you have testified to a few little microbes as a pattern; have you not?

No.

You have testified concerning your observations of one stain; isn't that true?

That's correct.

And in your book and in your writings, you have previously said that one stain does not a pattern make; isn't that correct?

That's correct.

But in this case, you've testified only to one stain; isn't that right?

I'm testifying about the mechanism and not a pattern. A pattern consists of more than one stain. A mechanism and how it got there is an entirely different matter.

What is the other evidence of blood that you saw around the ankle stain to which you've testified?

What's the other evidence?

Yes. What other pattern did you see or what other spots did you see around the ankle stain that caused you to make the statement that you did concerning your observation of the entire stocking?

That I didn't see any spatter on the entire sock as well. I've seen more compelling evidence of spatter. The person who looked at that and thought they were round spots is mistaken. They're not spatter. They look like flying saucers and donuts and trapezoids. They're not round.

What is it?

Your Honor, objection. Will she please allow the witness to finish?

Yes.

I'm sorry. Then what is it?

I don't know. It looks like it was transferred in an irregular fashion. I don't know the mechanism.

You're testifying now to the finer spots around the ankle stain?

No. I'm testifying to the overall socks.

Sir, I'd like you to talk about the spots that are around the ankle stain to which you've testified. Can you do that for us, please?

Yeah.

Okay. Can you tell us what your observations were with respect to the areas around that ankle stain?

I don't recall exactly. There might have been other spots there. But the stains immediately around it that were disassociated are on the surface of the fibers. They're the transfer stains.

You indicated, sir, that you saw the infrared videotape of those socks; did you not?

Yes, I did.

And would it refresh your memory a little bit if we showed you that infrared videotape?

Yes. I think photographs would be better because there's static, but I'd be happy to look at it again.

Thank you. We'll get those. Now, you indicated in your book that medium--

I'm sorry. I would ask that the attorney state which book because there were several.

Which edition? 3rd edition? Just show Mr. Neufeld the page you're referring to.

62.

And which page, counsel?

62.

62. All right. All right. Proceed.

All right. In your book, sir, you talk about the fact that stabbing or cutting will generally result in medium velocity bloodstains, correct?

Yes, if there's sufficient impact.

And then you indicated in your book that medium velocity blood spatter is difficult to see. In fact, you said in your book that: "When such medium velocity blood spots as are generated in a stabbing are discovered on the clothes of the killer, they will usually be somewhat below the resolution of the average juror's eyesight." Can you look at page 62 and tell us if that is written in your book?

Yes.

And then that difficulty is enhanced or made more difficult when the material is dark in color; isn't that true, sir?

That's correct.

And in fact, you had difficulty in the visualization of blood spatter on dark clothing in the Briggs case in which you testified in Monterey county?

Wait, wait, wait, wait, wait. Let me see counsel at the sidebar with the court reporter.

I would ask the Court to impose sanctions on Miss Clark. She was warned three times, three times before he took the witness stand on direct, I think at the conclusion of direct, and then at sidebar, you reiterated that she was not allowed to refer to or mention any of the other cases without first approaching sidebar. And I think sanctions are in order.

Miss Clark, do you have a copy for Mr. Neufeld, what you're about to use?

Yes. Mr. Gordon has it, although let me indicate to the Court, this is not--I don't see a great cause for hysteria here. We are not impeaching him. We are not impeaching him.

Keep your voice down.

It's appropriate.

She used the word "Hysteria." I just wanted to remind you of that.

I was waiting for my chance to use it, your Honor.

Do you have a copy for Mr. Neufeld?

I have an extra copy. He has a copy.

No. I would like a copy.

He transcribed stuff.

I'm supposed to get a copy. That's the way--

I'll get you a copy. Scott has it here though. Do you have an extra copy, Scott? And I would like to--

Your Honor, you may recall also, your Honor, he didn't even deny that phenomena in his book before she wants to refer to this. So it would be totally inappropriate to refer to another case because he wasn't--it's not impeachment. He wasn't denying the theory that she was describing.

Not at this point. I didn't even get a question and answer at this point yet. All right. Mr. Gordon, do you have a copy for Mr. Neufeld?

Can we give--

We're bringing down a copy of the whole transcript right now.

I will take the matter of sanctions under submission until we complete the testimony of this witness. We will not proceed on this until you get a copy, Mr. Neufeld.

We can give him a copy right now, your Honor.

May we approach?

Proceed. No. Not at this point.

Counsel has it, your Honor.

I understand he has it. I haven't heard a basis for its admissibility yet. Proceed. The issue is the ability to see blood staining, medium velocity blood spatter on dark clothing. That's the issue. Proceed.

All right. And you would agree, sir, that blood, especially of the medium velocity range would be difficult to visualize on dark fabric; isn't that correct?

Generally, yes.

And what is the size of an average blood drop, sir?

50 microliters is the volume. If you want the diameter, it's 4.6 millimeters in air.

In air?

Yes.

And on impact?

6.4 millimeters diameter if it's very carefully laid down. In all practical purposes, if it falls perhaps six or eight inches, it would be up to 11 or 12 millimeters.

Okay. And what was the size of the stain that you measured on the ankle bone of the sock, the ankle bone area of the sock?

There was no specific drop or circle. It was smeared in a sense. That's why it was not uniform in its density. The overall size was about one by one and a half inches.

And that--and you estimated then that the amount of blood in that stain would have been how much?

About one drop. Possibly a little more.

50 microliters?

50 microliters, 60 microliters. It's very difficult to tell because the surface itself is plastic. That is it's synthetic. And so it smears more easily than say cotton or something that absorbed more readily or thicker.

Did you take the material of these socks and attempt to measure the absorption rate on these socks?

No.

Did you make a cutting from the material of these socks in an attempt to evaluate how much blood would actually be absorbed in the area of the size of the stain to which you've testified you think this one was?

It wouldn't have mattered if I had it. No, I didn't cut one out, but there's no way I can design such an experiment.

But your answer is no, you didn't?

No.

And did you perform any experiment on the actual socks themselves by cutting out a swatch to determine how absorbent it would be of water, how quickly it would absorb water?

No.

Did you cut out a piece of the--of this material from these particular socks and view them with blood to determine how readily they would absorb blood?

No, I did not.

Wouldn't you agree, Mr. MacDonell, that it would be of some assistance to you in your testimony to have known how readily this particular sock would have absorbed blood or water?

If it was possible to determine it, I would be able to give a more accurate estimate, but I can not think of how to design an experiment to do that if it comes from something other than a medicine drop or a pipette. In other words, from a fingertip. I don't know how to measure the volume on the fingertip before I touch something and then measure the volume that remains, the difference being what's transferred.

Well, let me ask you this, sir. You examined the sock and you saw only the periphery that had not been cut out, correct?

That's correct.

And you never examined the piece of fabric that was the center of the stain, correct?

That's correct.

Wouldn't it have been of some assistance to you, sir, to look at the inside, the center of that stain in making your estimate of how much blood was actually in it?

I don't believe so, no. The stain was as saturated as I believe it could be right up to the outside of the cut-out portion. If you're going to suggest the center was in some way void, then that would have been interesting. But I think they cut it out because it was the heaviest stain to do their testing on.

You think, but you don't know?

You didn't look at the actual stain itself, did you, sir?

Of course not.

And so what you're telling us when you're telling us what your estimate is of the amount is your best guess; isn't that right?

Nonetheless--

It's a guess, an approximation.

A guess?

Estimate.

You did not quantify the blood in that stain, correct?

Yes. I estimated it to be about one drop, possibly a little more.

What test did you do, sir, on the inside center portion which you never saw? What test did you perform on that center portion which you never saw to determine precisely how much blood there was in it?

I assumed that physics works in California and capillary action--

Objection, your Honor. This is nonresponsive. The question was--

The question--I'm going to sustain the Court's own objection to that question. Rephrase the question or move on.

Did you conduct any experiment to quantify the exact amount of blood on the cut-out portion of the stain?

No.

Did you conduct any experiment to quantify the amount of blood in the periphery of the stain that remained on the sock?

No tests, no.

Now, you examined those socks for the first time on April 2nd, 1995; is that right?

That's correct.

And present with you at the time of that examination were Mark Taylor and Henry Lee, both experts for the Defense, correct?

Yes. And there were other people present of course.

During your examination?

Yes.

And who was that?

Peter Neufeld and I think it's Greg Matheson. He had custody of the evidence.

Greg Matheson had custody of the evidence. He brought it to you; is that correct?

I believe he was there all the time we examined the sock. He stepped out I believe at a point when we had shoes out or something like that. He wasn't there all the time.

Isn't it true, sir, that you requested that he leave while your examinations were being conducted?

No, that isn't true.

Objection. No foundation.

Overruled.

No, that is not true.

You did not permit him to remain in the room the entire time you were performing your experiments and your investigation; isn't that correct?

Objection to a compound question.

Overruled.

No, ma'am, that is not correct. I was not giving orders or requests to anyone. I was there to make examinations. What went on between other people, why they came in, why they left was of no concern to me. I did not direct such stains, no.

Someone in the room did ask him to leave at some point, did they not, sir, in your presence?

I don't remember it. I know he left. I don't know if he was asked to leave or he had to go to the bathroom, but he wasn't there all the time.

And he left for a substantial period of time; did he not, sir?

Objection. Vague as to "Substantial."

Sustained.

All right. He was gone for over an hour; was he not?

Objection. No foundation.

Overruled.

I don't believe he was gone anywhere near that long. But to be honest, I was paying no attention. I was examining things, and whether he was there every minute or not, I don't know. I do recall he left for a period. I don't know how long it was.

Let's move on.

Then it's your testimony that you do not recall anyone asking him to leave the room. Is that the way--is that the way you remember it, sir?

That's the way I remember it.

Objection. Hearsay, your Honor.

Overruled.

All right. Now, with respect to those socks that you saw for the first time on April 2nd, 1995, sir, would you please tell us your understanding of the history of those socks from their date of collection on June the 13th, 1994.

My understanding is that they were kept in custody. They were tagged in and out. I really didn't inquire as to the history.

Sir, wouldn't you agree that it would be extremely important to know as much as possible about the life history of those socks and how they were handled before you saw them?

Objection as to what purpose.

Sustained. Question is vague. Rephrase the question.

For the purpose of determining or assessing that what you saw was the condition of the socks at the time that they were collected on June the 13th or at the time the blood was first detected at some point thereafter, wouldn't it be important to you to know what those socks had been subjected to between the time of their collection on June the 13th and some 10 months later when you finally saw them on April 2nd, 1995?

Objection.

Wouldn't that be important to know, sir?

Sorry. Objection as to what the condition is. It's too vague.

Sustained. Rephrase the question.

Sir, with respect to whether or not those little balls, those little microbes were on the opposite inside surface of the sock that you observed--

Objection as to "Microbes."

Sustained. Sustained. Counsel, it's not microbes.

What did he say?

You said microbes. You've used the term three times now, microbes.

Those little balls that you testified to, sir, on the opposite inside surface of the sock. Wouldn't it be important to you to observe the condition, to observe whether or not they were present when the sock was collected on June the 13th or at the time the blood was detected thereafter to know whether or not that condition existed at that time as opposed to when you finally saw them 10 months later, April 2nd, 1995? Wouldn't it be important to you to know what had happened to them in-between those two times?

It wouldn't be important to me. I examined them to see what was present. Unless there's some strange handling of the evidence or storage, that's something I would not know and would expect to be documented in some manner and be advised of. But that's more for the attorneys to establish. Then when I'm asked to examine something, that's what I do. I don't know the history of it.

Well, sir, then it's your testimony that no, it would not be important for you to know all of the handling and what had happened to those socks from their time of collection until the time you examined them for the purpose of giving more meaning to your observation of those little balls?

I believe I answered that and said it could be important, but I do not know what it was.

You do not know the history?

That's correct.

Then you agree that it could be important for you to know that?

I just said that.

Then wouldn't you also agree, sir, that it would have been important for you to observe the condition of those socks at least as of the date when the blood was first discovered?

If they were altered from the time they were discovered until I saw them, yes. If they were kept in pristine condition, no.

Sir, and that's my question. Wouldn't it be important to know whether they had been kept in pristine condition or tested, manipulated, twisted and bounced around? Wouldn't it be important to know that if that occurred in-between the date of collection or blood detection and your observation?

It might explain what I saw, but it wouldn't change what I saw.

I agree, sir. But it might help to explain what you saw; would it not?

I'm not explaining what I saw from the standpoint of the history. I'm explaining the appearance as I saw it.

And so you can not tell this jury that those little balls that you saw in the opposite inside surface were there when the sock was collected on June the 13th, can you?

Objection. Argumentative.

Sustained. Rephrase the question.

Sir, you can not tell this jury how those little balls came--strike that. You can not tell this jury, sir, when those little balls came to be on the opposite inside surface where you observed them on April 2nd, 1995; isn't that true?

No. I could tell that.

You can tell them when?

Yes. It was before I examined them.

Yes. At any point before you examined them though, you can not be more specific than that; isn't that right?

That's correct.

And you can not tell this jury that those little balls came to be on the opposite inside surface on June the 14th, June the 15th, August 10th, September 28th or any other date specifically before the date you examined them on April 2nd; isn't that right?

Objection. Assumes facts not in evidence. There's no good faith basis for the question.

Overruled.

You can answer.

I'm sorry. I didn't hear. No. I have no idea when they occurred. They occurred prior to my examination.

Did you make any effort to inquire of Greg Matheson as to the history of the socks when he was present with you on April 2nd, 1995?

No, I did not.

May I have a moment, your Honor?

Yes.

Excuse me, sir.

All right, sir. Now, let me ask you something. Are you aware that phenolphthalein tests were conducted on this sock on August the 4th, 1994?

I may have read that. I don't recall that date specifically. I know phenolphthalin (Sic) tests were performed.

All right. And there are two types of phenolphthalein tests, correct? Well, maybe more, but at least two.

Well, phenolphthalein is reduced to phenolphthalin. When it reacts with peroxidases, it converts back to phenolphthalein. It seems few people can spell the word correctly, but there's a test, phenolphthalein, very sensitive for peroxidases in blood.

And--

You asked the question.

Well, I'd like--I should have called him way back when.

Anyway, Mr. MacDonell, let me ask you, are you aware that there are some phenolphthalein tests that are wet in nature that require the use of diluted water? Excuse me.

No.

Not diluted water. Distilled water.

Diluted water. I've seen it written both ways, but I think most of the tests that I read about recently are orthotolidine, not phenolphthalein. Orthotolidine I believe was what was used when I was there.

Okay. Which is a dry method; is that correct?

Well, the material that you're testing is dry, and you use a moistening agent, piece of damp filter paper or something to remove from the surface some of the material you're testing and then you use wet reagents. So it's dry, then wet.

Are you aware of the kind of phenolphthalein tests conducted on August 4th, 1994?

Excuse me, your Honor. Objection. I'd ask for a sidebar. I believe there's no evidence of this at this point.

All right. We'll take our break with the jury at this point. Ladies and gentlemen, we'll take our mid-afternoon break at this time. Remember all my admonitions to you. And I will ask you just to go back into the jury room, and we'll get back to you in about probably 20 minutes this time.