With respect to Professor MacDonell, your Honor, there is one brief point that I think that is to be resolved before we resume the direct examination. You may recall that when we--the Prosecution made a motion to exclude Professor MacDonell's glove drying experiment and at that point in time, your Honor, when we had discussion and argument about that motion, and you ruled against the Prosecution, you made some remark about, well, perhaps--perhaps the buffalo pictures might be displayed and then you said forget it. I was concerned about that remark because obviously the Court was not expressing an opinion one way or the other; it is just something that came to your mind. We then became concerned that perhaps the Prosecution might think, and I believe mistakenly, your Honor, because I don't believe there is any legal basis for it, to use those photographs that they have chosen either, because they chose not to for strategic reasons or chose not to because they believed they would be inadmissible. In any event, they didn't try and introduce those photographs as part of their direct case. They may mistakenly believe that they could not introduce these photographs to cross-examine Herbert MacDonell. Umm, I'm making this application now, your Honor, because I wanted to be very, very clear to the Court that it is our position that if the Court will allow the Prosecution in a sense to intimidate the Defense into not going forward with this compelling evidence, because of the prejudicial nature of those photographs or those videotapes, we will refrain from introducing the glove drying experiment and that is why it is essential that we know, before we complete the direct examination, what the Court's ruling on that will be. Now, the Defense's right to put on a defense, if you will--

Well, let me see if I understand. You want to put on this glove drying experiment, which I have indicated that I'm going to allow you to do?

That's correct.

All right. But you are afraid that if during the course of Mr. MacDonell's cross-examination the Prosecution has photographs or videotapes of Mr. Simpson wearing gloves in, say, for example, winter conditions in buffalo, you are worried that this will have some devastating affect upon your ability to present a defense?

Your Honor, no. It is--

Well, yes and no, and I will tell you why it is not, your Honor.

Tell me why it is not.

You may recall when I was examining Robin Cotton and I started asking her some questions about swatches heating up in the back of the truck in Brentwood, and you wisely cut me off and said what is a New York lawyer doing asking questions to a Maryland scientist about weather conditions in June in Brentwood. Well, that was a good point on your part, but equally true, your Honor, I don't know how much people in Los Angeles know, because of the luxury of living in this climate, about wearing gloves in the cold northeast. And I can tell you, your Honor, and anybody else who wears gloves in the northeast will tell you that we wear gloves out in the snow, we wear gloves out in the rain, and they don't shrink. We do that all the time. And we bring the gloves back in our houses and they don't shrink. And we wear the same gloves for years and years and years when we are adults, and the only reason we replace them is because we lose them or misplace them, not because they shrink. The only testimony you heard in fact on the shrinkage issue came from Richard Ruben who said specifically that in his opinion, if you did dump them in a lot of liquid, okay, and then depending upon how quickly they dried and those circumstances, that could cause some shrinkage. But remember we are not talking about some shrinkage here. We are talking about, by the Prosecution's witnesses, own testimony, ten to fifteen percent shrinkage, and there has been no testimony at all from any Prosecution witness during their case that weather can account for a ten to fifteen percent shrinkage, if any at all. Freezing and thawing, freezing and thawing, doesn't do it. When I go out in the winter, when I lived in Wisconsin and it was thirty below zero--

All right.

--those gloves are freezing and you came inside they thaw out. They do not shrink. Gloves don't do that.

Mr. Neufeld, isn't this sort of premature given the fact that they are not obligated in cross-examination and impeachment of your witness to divulge what they have? And I have indicated to them that before they present anything similar to what we just talked about, that we will have a motion at side bar to determine whether or not that is going to be used.

No. I think, your Honor, it is not a question of them showing particular photographs right now. I'm not asking for that. What I'm saying is that this entire line of inquiry would be impermissible, showing any photographs or any videotapes, because there is absolutely no foundation that was laid during their case at all that the weather conditions can account for a ten to fifteen percent shrinkage. In fact, the only theory proffered by the Prosecution during their case was that gloves smeared with a large quantity of blood could account for a ten to fifteen percent shrinkage. That is the only theory they advanced. And it is because of Mr. Simpson's 6th amendment right to confront that theory, to put on a defense, that we engaged Herbert MacDonell to conduct that experiment after the Prosecution rested, just for that narrow purpose. They have a right to do their own shrinkage experiment. I don't have a problem with that. We have opened the door to that. But there is no question in my mind, your Honor, that photographs showing Mr. Simpson wearing gloves at a buffalo bills game, at a Cincinnati Bengal's game in the winter, there is nothing at all to cross-examine or impeach this witness' testimony. If they wanted to do experiments on blood, that would fine, but merely showing that he wears gloves in the outdoors in the winter doesn't do it. There is no evidence that suggests that wearing gloves in the winter will cause a ten to fifteen percent shrinkage. I know of no such person who would ever testify to something like that. And so what the Prosecution is really trying to do here is simply prejudice the jury, not with probative evidence to explain shrinkage, but rather with shots of Mr. Simpson wearing brown leather gloves.

Okay. Hold on. Is there a response from the People?

That is not the issue. The issue is do you intend to present evidence of Mr. Simpson wearing gloves in the wintertime?

Is the Court requiring us to tell them that now?

No, I'm not, but you could save me a lot of trouble if you said, no, we are not going to do it.

I can't promise you that, your Honor. I really can't. I think it is--you know, all kidding aside, it is obviously germane. They undertook to do these experiments on brand new gloves under totally different conditions. That is very grist for the mill on cross-examination. We didn't tell them to conduct the experiment in this manner. They have set themselves up for a fall by doing it in the way that they do. You pay your money, you take your chances, and that is all we are saying.

So I take it your position is that since it is cross-examination at this point it is not something that you need to divulge in discovery?

That's correct.

All right. But we have seen--when this glove issue came up in the commercial news media we saw several sportscasts, replays of Mr. Simpson in wintertime--

That's true.

--wearing gloves.

That's true.

All right. Can you establish a foundation that those gloves are the same gloves?

Yes, I can.

Interesting.

Your Honor--

Let me see counsel at side bar without the court reporter, please.

All right. Thank you, counsel. Mr. Neufeld.

Your Honor, the only additional point I wish to make is I'm making a specific proffer so the Court will know at least the parameters of Professor MacDonell's testimony on this issue. I laid out most of what he would say in my moving papers with the accompanying photographs which the Court saw. I just wanted to be very, very clear to the Court, the professor took the other new pair of gloves that were provided by the Isotoner corporation, basically identical to the new gloves that Mr. Darden used in the second demonstration in the courtroom, and that he took them and smeared a large amount of blood on both gloves, as much as they would absorb in fact, rubbed it in, that he then tried to replicate the climatic conditions at Bundy and Rockingham for that evening by relying on U.S. weather service reports regarding temperature, dew points, humidity, the like, that he used a special humidity chamber in fact designed by the Corning glass company to do that.

And that as a result of that he simply learned two things: One, that the approximate drying time is about four hours. And that two, when he compared the gloves after they were dried to their size before they were moistened with the blood, that there was no observable shrinkage. And that would be the extent of his testimony. And so it is our position since that that is all he will testify to, that they are precluded from cross-examining him with any photographs or videotapes showing Mr. Simpson wearing brown leather gloves.

All right. Counsel, I think that if you bring in evidence regarding this experiment as to how these gloves did not shrink under your experiment, the Prosecution is entitled to cross-examine on factors that were not taken into consideration during the course of the Defense experiment, such as the age of the gloves, other weather exposure, particular materials that were involved in this--with this particular glove, the nature of the--how the leather was manufactured, what kind of water repellent treatments were placed on it, whether or not any of these things were taken into consideration. I think that is fair game for cross-examination.

The only little point I would add, your Honor, is that I don't doubt that they have the right to cross-examine him on all those points and ask him whether he took those into account. By the way, the only little remark I would make is you may recall that Richard Ruben testified that these gloves were made with naked leather, that was his word, so this is no preservatives. There are no--there is no chemicals to resist moisture or anything else. So the fact that it is naked leather is not going to change over a period of time.

Well, there is some chemical constituency in the tanning process, but go ahead.

We are not disputing, your Honor, that the gloves in question are older gloves and they are not new gloves. The jury has seen the gloves and they know they are older gloves. That entire cross-examination that you just described will certainly be permissible.

And would only take about ten minutes.

But the ends of that cross-examination is qualitatively and quantitatively different from enabling the Prosecution to show photographs of Mr. Simpson wearing brown leather gloves in the winter. We are not disputing that, you know, that gloves are worn in the winter, that Mr. Simpson has worn gloves in the winter. You know, three/fifths probably of the population have worn gloves in the winter. That is not a very probative point at this time. However, showing him wearing brown leather gloves is very prejudicial and I don't see, your Honor, quite frankly, the relevance of showing him wearing gloves on a cold winter day in buffalo has to do with the rest of the cross-examination which is perfectly permissible; did you take into consideration that the gloves were old? Did you take into consideration that they may be out in the weather?

Well, when I discussed this issue with counsel previously, I indicated that before any videos or photos were presented during the cross-examination that the Court would have to see them first and make a ruling at that time. So the objection at this point is premature. Given the parameters of what I have indicated, I think you understand the Court's ruling.

One second, your Honor.