Sidebar: cross-examination scope

📄 Sidebar: cross-examination scope — Tuesday, April 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\11\SIDEBAR-CROSS-EXAMINATION-SCOP.DOC

TRIAL

▲ Day 54 of 167

◀ Cross-examination of Dennis Fung (part 4) Cross-examination of Dennis Fung (part 5) ▶

Witness: Dennis Fung
Date: Tuesday, April 11, 1995 • Utterances: 51

Defense attorney Barry Scheck sought to cross-examine criminalist Dennis Fung about a June 28th search where Fung was allegedly briefed by Detective Vannatter and shown a specific knife (the Ross Cutlery knife) to search for at Rockingham. The prosecution objected that this was beyond the scope of direct examination, and Judge Ito ultimately sustained the objection after briefly questioning Fung at the sidebar to assess the relevance.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 2 THE COURT:

WE ARE OVER AT THE SIDE BAR.

# 3 MR. SCHECK:

YES, YOUR HONOR. THE TESTIMONY AT THE 1538.5 HEARING ON SEPTEMBER 22ND FROM MR. FUNG --

# 4 MS. CLARK:

YOU KNOW WHAT, CAN I ASK ONE FAVOR? FOR THIS PARTICULAR ARGUMENT I THINK ME AND MR. DARDEN ARE PROBABLY MORE UP ON THIS ISSUE THAN HANK IS. CAN I ASK FOR MR. DARDEN TO COME UP INSTEAD OF HANK?

# 5 THE COURT:

I THINK YOU CAN HANDLE IT, MISS CLARK.

# 6 MS. CLARK:

I'M NOT SURE.

# 7 THE COURT:

I TRUST THE BREADTH OF YOUR SHOULDERS. ALL RIGHT. THE OBJECTION IS SCOPE AT THIS POINT SO --

KEY QUOTE

# 8 MR. SCHECK:

YES. AND THE -- HIS TESTIMONY AT THAT HEARING IS THAT HE WAS GIVEN A BEEFING THAT MORNING BY DETECTIVE VANNATTER AND HE WAS SPECIFICALLY INSTRUCTED TO SEARCH FOR A KNIFE AND HE WAS GIVEN A DESCRIPTION OF THAT KNIFE, A PARTICULARIZED DESCRIPTION OF A KNIFE, AND I INTEND TO EXPLORE THAT AND ESTABLISH THAT INDEED HE WAS GIVEN A DESCRIPTION OF THE ROSS CUTLERY KNIFE, AND AS WAS INDICATED IN THE WARRANT, AND HE WAS INSTRUCTED TO TAKE THE METAL DETECTORS AND GO SEARCH FOR IT ON THE OUTSIDE AND GO SEARCH FOR IT ON THE INSIDE OF THE HOUSE BECAUSE THAT IS HIS TESTIMONY AT THE HEARING.

# 9 THE COURT:

HOW DO WE GET BEYOND THE SCOPE? I MEAN, HOW IS IT RELEVANT TO HIS TESTIMONY ON DIRECT?

# 10 MR. SCHECK:

HIS TESTIMONY ON DIRECT EXAMINATION HAS TO DO WITH HIS SEARCHING ACTIVITY STARTING ON JUNE 13TH, ALL THE WAY THROUGH JULY 3RD, AND JUST BECAUSE THEY DON'T LIKE THIS PARTICULAR SEARCHING ACTIVITY ON JUNE 28TH DOESN'T MEAN THAT WE CAN'T EXPLORE IT NOW WITH THIS WITNESS. IT DOESN'T SEEM TO ME THAT HE SEARCHED ROCKINGHAM ON JUNE 13TH. HE WENT THROUGH THE BEDROOM AREA ON JUNE 13TH. THEN EVEN REVISITS IT ON JUNE 28TH, CONDUCTS A FURTHER SEARCH. I THINK THIS IS THE WITNESS, THIS IS THE SEARCHING WITNESS WITH WHOM WE CAN EXPLORE WHAT EFFORTS, IF ANY, WERE MADE TO SEARCH FOR THIS KNIFE IN THE BEDROOM.

# 11 THE COURT:

ALL RIGHT. BUT HOW DO YOU RESPOND TO THE SCOPE ARGUMENT?

# 12 MR. SCHECK:

I THINK IT IS WITHIN --

# 13 THE COURT:

I AGREE IT IS PROBABLY SOMETHING THAT THE DEFENSE WANTS TO PRESENT, BUT IT IS BEYOND THE SCOPE OF ANYTHING THAT WAS PRESENTED BY THE PROSECUTION.

# 14 MR. SCHECK:

WELL, IT SEEMS TO ME THAT IT IS WITHIN THE SCOPE OF THE DIRECT EXAMINATION BECAUSE THE SUBJECT MATTER OF HIS DIRECT EXAMINATION WERE HIS SEARCHING ACTIVITY BETWEEN JUNE 13TH AND JULY 3RD. THEY HAVE HIM EXAMINING THE MASTER BEDROOM ON DIRECT EXAMINATION AT ROCKINGHAM ON JUNE 13TH. IT SEEMS TO ME THAT WE SHOULD BE ENTITLED TO EXPLORE A SECOND SEARCH THAT HE MADE TO THE SAME AREA LOOKING FOR THE SAME MATERIALS ON A SUBSEQUENT DATE AND THEY SIMPLY CAN'T ESCAPE THAT --

# 15 THE COURT:

I DON'T RECOLLECT --

# 16 MR. SCHECK:

-- BY SPECIFICALLY RAISING IT.

# 17 THE COURT:

I DON'T RECOLLECT HIS TESTIMONY REGARDING THE SEARCH OF THE BEDROOM.

# 18 MR. GOLDBERG:

THE WHAT?

# 19 MR. SCHECK:

HE TESTIFIED HE SEARCHED THE BEDROOM AND HE FOUND THE SOCK.

# 20 MR. GOLDBERG:

NO, HE DIDN'T.

# 21 MS. CLARK:

NO, THAT IS INCORRECT. HE DIDN'T SEARCH ANYTHING. HE INDICATED HE PICKED UP THE SOCKS. HE CONDUCTED NO SEARCHES HIMSELF. THE ONLY THING HE DID WAS SWAB STAINS IN THE BATHROOM, BUT THERE WAS NO SEARCH CONDUCTED BY THIS WITNESS ON THE MEDICINE CABINET.

# 22 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)

# 23 THE COURT:

MR. FUNG, WOULD YOU STEP OVER TO THE SIDE BAR, PLEASE.

# 24 MS. CLARK:

IT IS BEYOND THE SCOPE BECAUSE NO SUCH TESTIMONY WAS ELICITED.

# 25 THE COURT:

I UNDERSTAND. MR. FUNG, WOULD YOU SORT OF JOIN US. MR. SCHECK, WHY DON'T YOU GO AHEAD AND ASK HIM A QUESTION ABOUT SEARCHING ON THE 14TH -- EXCUSE ME -- THE 13TH.

# 26 MR. SCHECK:

ON THE 13TH?

# 27 THE COURT:

WHICH DATE ARE YOU ARE LOOKING FOR?

# 28 MR. SCHECK:

THE DATE THAT HE SEARCHED FOR THE KNIFE.

# 29 THE COURT:

YES.

# 30 MR. SCHECK:

JUNE 28TH.

# 31 THE COURT:

ALL RIGHT.

# 32 THE COURT:

ASK HIM SOME OF THESE QUESTIONS.

# 33 MR. SCHECK:

MR. FUNG, YOU ATTENDED A BRIEFING ON THE MORNING OF JUNE 28TH BEFORE YOU EXECUTED THE SEARCH WARRANT?

# 34 DENNIS FUNG:

YES.

# 35 MR. SCHECK:

IT WAS YOUR ASSIGNMENT TO SEARCH --

# 36 MS. CLARK:

OBJECTION. THIS IS IRRELEVANT TO WHAT THE COURT --

# 37 MR. COCHRAN:

DON'T WE HAVE ONE LAWYER?

# 38 MR. SCHECK:

IT WAS YOUR ASSIGNMENT TO SEARCH FOR A KNIFE?

# 39 DENNIS FUNG:

FOR A KNIFE, YES.

# 40 MR. SCHECK:

AND THAT KNIFE WAS DESCRIBED TO YOU IN PARTICULAR BY DETECTIVE VANNATTER?

# 41 DENNIS FUNG:

THERE WAS A KNIFE THAT WAS SHOWN, BUT ANY KNIFE WOULD HAVE BEEN -- WAS WHAT I WAS LOOKING FOR.

KEY QUOTE

# 42 MR. SCHECK:

BUT YOUR ATTENTION WAS FOCUSED ON A PARTICULAR KNIFE THAT YOU WERE SHOWN?

# 43 DENNIS FUNG:

I WAS ONLY SHOWN AS A POSSIBLE KNIFE.

# 44 MR. SCHECK:

BUT THIS KNIFE IS --

# 45 THE COURT:

I'M SATISFIED. ALL RIGHT. MR. FUNG, WHY DON'T YOU TAKE YOUR SEAT BACK. ALL RIGHT. ANY OTHER COMMENT?

# 46 MS. CLARK:

YOUR HONOR, HOW DOES THIS RESOLVE THE SCOPE ISSUE?

# 47 THE COURT:

HOLD ON.

# 48 MS. CLARK:

THAT DIDN'T RESOLVE WHAT HE TESTIFIED TO ON DIRECT WHICH HAD NOTHING TO DO WITH ANY OF THE ABOVE.

# 49 THE COURT:

I AM JUST ASKING IF THERE IS ANY OTHER COMMENT?

# 50 MR. SCHECK:

NO.

# 51 THE COURT:

ALL RIGHT. OBJECTION STAINED.

KEY QUOTE

Temperature

tense

Key Quotes (5)

Lance A. Ito

I TRUST THE BREADTH OF YOUR SHOULDERS.

Ito's wry reassurance to Clark that she could handle the argument without Darden — a rare moment of judicial levity at sidebar.

Barry Scheck

HE WAS SPECIFICALLY INSTRUCTED TO SEARCH FOR A KNIFE AND HE WAS GIVEN A DESCRIPTION OF THAT KNIFE, A PARTICULARIZED DESCRIPTION OF A KNIFE... I INTEND TO EXPLORE THAT AND ESTABLISH THAT INDEED HE WAS GIVEN A DESCRIPTION OF THE ROSS CUTLERY KNIFE.

Scheck's core argument — that the June 28th search was directed at a specific knife, tying Vannatter to pre-knowledge of the Ross Cutlery knife referenced in the search warrant.

Marcia Clark

HE CONDUCTED NO SEARCHES HIMSELF. THE ONLY THING HE DID WAS SWAB STAINS IN THE BATHROOM, BUT THERE WAS NO SEARCH CONDUCTED BY THIS WITNESS ON THE MEDICINE CABINET.

Clark directly rebuts Scheck's factual predicate — that Fung's direct testimony included searching the bedroom — undercutting the scope argument.

The Witness

THERE WAS A KNIFE THAT WAS SHOWN, BUT ANY KNIFE WOULD HAVE BEEN -- WAS WHAT I WAS LOOKING FOR.

Fung's hedged answer at sidebar partially confirms a knife was shown to him but deflects the implication of a targeted search for a specific weapon.

Lance A. Ito

OBJECTION STAINED.

Almost certainly a transcription error for 'SUSTAINED' — the objection is upheld, ending Scheck's line of questioning about the June 28th knife search.

Evidence (3)

Informal

Ross Cutlery knife — described as the specific knife Fung was allegedly shown and instructed to search for on June 28th

discussed

Informal

Search warrant for Rockingham — referenced as containing description of the Ross Cutlery knife

discussed

Informal

1538.5 suppression hearing testimony (September 22nd) — Scheck's basis for his cross-examination questions about Fung's June 28th briefing

discussed

Notable Exchanges (3)

Barry Scheck•Marcia Clark•Hank Goldberg

Scheck claims Fung testified to searching the bedroom and finding the sock; both Clark and Goldberg flatly contradict this, with Clark clarifying Fung only picked up socks and swabbed the bathroom — no bedroom search.

heated

Lance A. Ito•Barry Scheck

Ito invites Scheck to question Fung directly at the sidebar to probe the scope issue, then cuts it off after a few exchanges, ruling himself 'satisfied' — an unusual in-situ test of relevance.

strategic

Marcia Clark•Johnnie Cochran

Clark objects mid-question during Scheck's sidebar questioning of Fung; Cochran interjects 'DON'T WE HAVE ONE LAWYER?' — a sharp rebuke of dual prosecution interruptions.

tense

Light Moments (1)

Lance A. Ito

Ito declines Clark's request to swap in Darden, telling her 'I TRUST THE BREADTH OF YOUR SHOULDERS' — a dry compliment cutting off the request.

Credibility Attacks (1)

⚔ Dennis Fung

prior testimony (1538.5 hearing)

Scheck attempted to use Fung's September 22nd suppression hearing testimony to establish that Vannatter specifically directed him to search for the Ross Cutlery knife on June 28th, implying a targeted and pre-informed search rather than a neutral evidence collection.

Objections

2 objections (1 sustained, 0 overruled)

Proceeding 5644 • 51 utterances

Criminal Trial

Department 103