Recross-examination of Dennis Fung

📄 Recross-examination of Dennis Fung — Wednesday, January 15, 1997

Address:

C:\DEPT103\CIVIL\1997\JAN\15\RECROSS-EXAMINATION-OF-DENNIS-.DOC

TRIAL

▲ Day 42 of 57

◀ Cross-examination of Dennis Fung Direct examination of criminalist expert ▶

Witness: Dennis Fung
Examiner: Edward Medvene
Called by: Defense • Date: Wednesday, January 15, 1997 • Utterances: 50

Baker conducted a brief recross of Dennis Fung, pressing him on the number of mistakes he made in evidence collection. Fung acknowledged only one mistake, and Baker challenged him on the dried swatches testimony. The examination ended quickly, followed by a bench conference about limiting the scope of the next witness, criminalist Richard Fox.

# 1 A:

Yes, I did.

# 2 MR. LAMBERT:

Okay. Nothing further, Your Honor. RECROSS-EXAMINATION BY MR. BAKER:

# 3 Q:

How many mistakes did you make, Mr. Fung?

KEY QUOTE

# 4 A:

One that I know of.

# 5 Q:

How about the back gate, was that a mistake?

# 6 MR. LAMBERT:

Objection, argumentative, Your Honor, beyond the scope.

# 7 THE COURT:

Sustained.

# 8 Q:

(BY MR. BAKER) You didn't make a mistake when you testified that every swatch that you put in on June 13, 1994 was all dried when they were removed on June 14, 1994; you didn't make the mistake then, did you, sir?

# 9 MR. LAMBERT:

Argumentative, beyond the scope.

# 10 THE COURT:

Overruled.

# 11 A:

They appeared dry to me when I put them in bindles.

KEY QUOTE

# 12 MR. BAKER:

Nothing further.

# 13 MR. LAMBERT:

Nothing further.

# 14 THE COURT:

You may step down.

# 15 MR. MEDVENE:

If the Court please, may we briefly approach?

# 16 THE COURT:

You may. (The following proceedings were held at the bench with the reporter.)

# 17 THE COURT:

Go ahead.

# 18 MR. MEDVENE:

If the Court please, our next witness is Richard Fox. He's a criminalist. He's being put on for the limited purpose of offering an alternative explanation for why it was -- what appeared to be a red spot on side 3 of the sock. It's our belief from something that counsel had said that they may attempt to question the witness about an area we think is not relevant. The witness made some comments critical of SID that related to SID and the procedures four or five years ago. We think that area is irrelevant and counsel should not be permitted to go into that area. We wanted a preliminary ruling, Your Honor, prior to putting the witness on.

# 19 MR. BAKER:

Your Honor, they -- they can't run their people. He testified that -- he's been critical of SID. This whole case is about -- a good portion of it is about SID practice and procedures, and I think his -- his criticism of SID goes to his qualifications and it goes to -- to his background. I mean he's testified to a lot of things a lot of times and with that, he's testified to more than once.

# 20 MR. MEDVENE:

We're not going to ask him anything about SID, just to his limited examination of the sock. I'm sorry.

# 21 THE COURT:

Who is Mr. Fox?

# 22 MR. MEDVENE:

He's a criminologist, Your Honor, and he's offered directly on Mr. MacDonell.

# 23 THE COURT:

Excuse me?

# 24 MR. MEDVENE:

He's offered directly to counter the testimony of Mr. MacDonell and to give an alternative explanation to why blood -- blood would be on side 3 of the sock. Mr. MacDonell's explanation was it had to be poured on or placed on after the fact. He offers an alternative explanation. His deposition's been taken. His comments about SID had to do with four or five years ago. He's not going to talk about SID at all. His comments have nothing to do with the SID people that testified in this case. And we think it would be highly prejudicial and not relevant since he's not talking about SID.

# 25 MR. BAKER:

Your Honor, the socks -- as the Court will recall, these socks were collected on June 13. Nobody found any blood on them until August 4, August 4.

# 26 MR. PETROCELLI:

That's when they were first examined.

# 27 MR. BAKER:

That isn't when they were first examined. These socks were seen by -- they went through SID, they went through -- Michelle Kestler, Colin Yamauchi and Matheson all looked at those socks to determine what tests they were going to run on those socks, and found there was no blood. Then, all of the sudden, on August 4, 1994 -- 1994, they find blood that they -- and those socks at all times were in the custody of SID. His testimony relative to what he believes about SID goes directly to that issue.

# 28 THE COURT:

Which is what?

# 29 MR. BAKER:

Which is how do you get socks all of the sudden that have blood on them when their people say there's no blood, our people looked at them, said there's no blood.

# 30 THE COURT:

You're not responding to my question. What is it you wish to ask him with regards to SID?

# 31 MR. BAKER:

Whether he has ever had any criticism of them, whether he thinks their procedures --

# 32 THE COURT:

Such as what?

# 33 MR. BAKER:

That their procedures are sloppy.

# 34 THE COURT:

As to what?

# 35 MR. BAKER:

As to evidence handling, they have no manual.

# 36 THE COURT:

I'll sustain the objection as to that.

# 37 MR. MEDVENE:

Thank you, Your Honor.

# 38 MR. PETROCELLI:

Your Honor --

# 39 THE COURT:

We'll get to it.

# 40

MR. PETROCELLI: Okay. (The following proceedings were held in open court in the presence of the jury.)

# 41 MR. MEDVENE:

Richard Fox.

# 42 THE COURT:

How many more witnesses do you have?

# 43 MR. MEDVENE:

Last one, Your Honor.

# 44 MR. PETROCELLI:

Last one.

# 45 MR. MEDVENE:

For today. RICHARD FOX, called as a witness on behalf of Plaintiffs, was duly sworn and testified as follows:

# 46 THE CLERK:

You do solemnly swear that the testimony you may give in the cause now pending before this court shall be the truth, the whole truth and nothing but the truth, so help you God?

# 47 DENNIS FUNG:

I do.

# 48 THE CLERK:

Sir, if you would please state and spell your name for the record.

# 49 DENNIS FUNG:

Richard H. Fox. R-i-c-h-a-r-d H. F-o-x. DIRECT EXAMINATION BY MR. MEDVENE:

# 50 Q:

What is your business or profession?

Temperature

tense

Key Quotes (3)

Baker

How many mistakes did you make, Mr. Fung?

Blunt closing attack summarizing the entire cross-examination strategy — forcing Fung to minimize or acknowledge errors.

Witness

One that I know of.

Fung's self-assessment — Baker immediately challenged it by pointing to additional specific errors.

Witness

They appeared dry to me when I put them in bindles.

Fung's hedged answer on the swatch drying issue — 'appeared' leaves wiggle room and avoids a flat admission of error.

Evidence (2)

Informal

Blood swatches collected June 13, 1994 and removed June 14, 1994 — whether they were dry when bindles were sealed

discussed

Informal

Back gate evidence collection

referenced (question sustained before answer)

Notable Exchanges (2)

Baker•Fung

Baker asked Fung point-blank how many mistakes he made; Fung said one; Baker immediately countered with the back gate as a second example, but was cut off by a sustained objection.

confrontational

Baker•Medvene•Fujisaki

Bench conference over whether Fox could be cross-examined about his prior criticism of SID's procedures. Fujisaki sustained the limitation — Baker cannot question Fox about SID's sloppy procedures or lack of manual.

strategic

Credibility Attacks (1)

⚔ Fung, Dennis

prior inconsistent statement / minimization challenge

Baker pressed Fung to enumerate his mistakes, implying the 'one' Fung admitted was an undercount, citing the back gate and the swatch drying testimony as additional errors.

Objections

2 objections (1 sustained, 1 overruled)

Proceeding 8813 • 50 utterances • Defense witness

Civil Trial

Department 103