The 2nd District Court of Appeals gave prosecutors a partial victory in their attempt to throw out Judge Lance Ito's instruction that jurors could base Detective Mark Fuhrman's credibility on his "unavailability" for more cross-examination.
Mr Fuhrman was questioned by defence lawyers earlier this week, outside the jury's presence, after evidence was presented that contradicted his previous testimony. He also was asked whether he placed a bloody glove at Mr Simpson's estate to make it appear the former American-football star killed his ex-wife and her friend.
Mr Fuhrman refused to answer the questions, citing his right against self-incrimination. The defence claims Fuhrman is a liar and a racist who tried to make Mr Simpson appear guilty of the murders.
On Thursday Mr Ito said he would tell jurors Mr Fuhrman was unavailable to return to testify and they could consider that in determining his credibility. The judge said, however, that he would not mention that Mr Fuhrman had invoked his constitutional privilege when questioned by defence lawyers. Prosecutors argued that such a statement would leave the wrong impression.
The appeals-court order said: "... the proposed instruction regarding the unavailability of former Detective Fuhrman is not to be given."