Sidebar: vehicle search scope

📄 Sidebar: vehicle search scope — Tuesday, April 11, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\11\SIDEBAR-VEHICLE-SEARCH-SCOPE.DOC

TRIAL

▲ Day 54 of 167

◀ Redirect examination of Dennis Fung (part 3) Session resumed ▶

Date: Tuesday, April 11, 1995 • Utterances: 23

Defense attorney Barry Scheck argued at sidebar that cross-examination of Dennis Fung should extend to the June 28th Bronco search, contending it fell within the scope of the prosecution's direct examination covering multiple vehicle searches. Judge Ito sustained the prosecution's scope objection in part, limiting Scheck to questioning about the discrepancy between the June 14th and June 28th vehicle checklists — specifically whether a B.A.D. detective opened the car on June 14th or June 28th — while barring broader inquiry into the shovel, plastic bag, and additional blood stains found in August.

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

# 2 THE COURT:

ALL RIGHT. WE ARE OVER AT THE SIDE BAR. I DON'T RECOLLECT US TALKING ON DIRECT EXAMINATION ABOUT THE SEARCH OF JUNE 28TH.

# 3 MR. SCHECK:

YOUR HONOR, THAT IS TRUE, THEY DIDN'T MENTION THE SEARCH ON JUNE 28TH, BUT THEY DID TALK ABOUT DIFFERENT SEARCHES OF THE BRONCO. THEY PRESENTED A CHART INDICATING WHAT THE VEHICLE LOOKED LIKE ON JUNE 13TH, JUNE 14TH AND THEN ALL THE WAY THROUGH AUGUST 26TH. THEY ALSO WENT THROUGH MR. FUNG'S SEARCHING ACTIVITIES STARTING ON JUNE 13TH ALL THE WAY THROUGH JULY 3RD, SO WE THINK IT IS WITHIN THE SUBJECT MATTER OF HIS DIRECT EXAMINATION. NOT ONLY THAT, I WILL MAKE AN OFFER OF PROOF ABOUT WHAT I'M ABOUT TO SHOW THAT I THINK SHOWS ITS CLEAR RELEVANCE, AND THAT IS THAT --

# 4 THE COURT:

WELL, RELEVANCE I'M NOT ARGUING WITH.

# 5 MR. SCHECK:

I THINK IT IS WITHIN THE SUBJECT MATTER OF HIS DIRECT EXAMINATION IN TERMS OF THE SEARCHES OF THE VEHICLE. NOT ONLY THAT, I NEED TO BE ABLE TO GO INTO THE JUNE 28TH FOR A NUMBER OF REASONS: FIRST OF ALL, IN HIS JUNE 28TH CHECKLIST, THAT IS WHEN HE INDICATES THAT DETECTIVES FROM B.A.D. OPENED THE CAR, BUT ON HIS JUNE 14TH CHECKLIST HE LEAVES IT BLANK, SO I THINK THAT HE MAY HAVE BEEN -- I WANT TO EXPLORE THE FACT THAT MAYBE HE IS CONFUSING THESE TWO INCIDENTS AND THAT IN FACT NO DETECTIVE CAME AND OPENED THE CAR ON JUNE 14TH. I THINK IT IS ALL WITHIN THE SUBJECT MATTER OF HIS DIRECT EXAMINATION, SEARCHING ACTIVITY STARTING ON JUNE 13TH, ALL THE WAY THROUGH JULY 3RD AND AFTER. PARTICULARLY WITH RESPECT TO THE BRONCO, THEY INTRODUCED A CHART OF THE BRONCO TRYING TO -- SHOWING HIM PICTURES OF WHAT IT WAS LIKE ON JUNE 13TH, JUNE 14TH AND THEN AUGUST 16TH AND SEPTEMBER 1ST. THAT IS IN THE CHART.

# 6 THE COURT:

I DON'T THINK THAT IS WHAT -- I DON'T RECALL THAT.

# 7 MR. SCHECK:

THAT IS THEIR CHART.

# 8 THE COURT:

I DON'T RECALL. MR. GOLDBERG? I WILL TAKE A LOOK AT THE CHART.

# 9 MR. GOLDBERG:

I HAVE A BRONCO CHART, BUT IT DOESN'T HAVE ANY DATES ON IT; IT JUST HAS PICTURES AND IT DOESN'T HAVE ANYTHING RELATING TO THIS SEARCH.

# 10 THE COURT:

ALL RIGHT. THE PROBLEM, THOUGH. THE PROBLEM, THOUGH, IS THAT MR. SCHECK POINTS OUT THAT ON THE VEHICLE CHECKLIST FOR THE 28TH HE ALSO INDICATES IT IS OPENED BY B.A.D. AND ON THE 13TH THERE IS NO SUCH INDICATION, SO MAYBE HE IS CONFUSED WHICH ONE IS WHICH, AND IT GOES TO WHETHER OR NOT THE BRONCO WAS ACTUALLY SECURED WHILE IT WAS AT THE PRINT SHACK, SO THERE IS AN EVIDENCE ISSUE THERE.

# 11 MR. GOLDBERG:

WELL, ON THAT LIMITED BASIS COULD I SEE SOME --

# 12 MR. SCHECK:

BUT YOUR HONOR, I ALSO WOULD LIKE TO -- I WOULD LIKE TO BRIEFLY ASK HIM ABOUT THE JUNE 28TH SEARCH AS WELL WHEN HE LOOKED AT THE SHOVEL AND HE LOOKED AT THE PLASTIC BAG. THESE WERE OBJECTS THAT WERE IN THE CAR JUNE 13TH. THEY ARE IN THERE JUNE 14TH. HE SEARCHED THEM ON JUNE 28TH. I THINK I AM ALLOWED TO EXPLORE THOSE AS WELL.

# 13 MR. GOLDBERG:

WE DIDN'T GET INTO THAT.

# 14 THE COURT:

I KNOW YOU DIDN'T GET INTO THAT. I MEAN, DO YOU OBJECT TO IT?

# 15 MR. GOLDBERG:

YEAH. YES, WE WOULD. THEY CAN CALL HIM AS THEIR WITNESS. THEY HAVE COVERED ENOUGH WITH HIM.

# 16 THE COURT:

OKAY. I'M GOING TO SUSTAIN THE SCOPE OBJECTION WITH THE EXCEPTION OF THE CONFUSION BETWEEN THE DOCUMENTS.

# 17 MR. SCHECK:

ONE FURTHER POINT, HOWEVER.

# 18 THE COURT:

YOU CAN INQUIRE AS TO THE TWO DOCUMENTS.

# 19 MR. SCHECK:

THE -- AT ANOTHER POINT THEY WENT INTO THIS ISSUE, THOUGH, ON A SIMILAR POINT, I JUST -- BUT JUST TO BE CLEAR, AND THE COURT CAN LOOK AT IT AT ITS LEISURE, WHAT IS GOING TO ARISE -- AND MR. GOLDBERG AND MISS CLARK KNOW IT FULL WELL -- IS THAT WHEN MR. FUNG SWATCHED THE SAMPLE FROM THE BRONCO ON JUNE 14TH, ON THE CONSOLE, VERY SIMILAR, IF NOT ALMOST IDENTICAL LOOKING STAINS, EXCEPT ADDITIONAL ONES ARE THEN FOUND ON AUGUST 26TH, EVEN THOUGH HE SWATCHED IT ON JUNE 14TH. NOW, HIS RULES ARE THAT HE IS SUPPOSED TO SWATCH AND GET AS MUCH AS HE CAN AND I WILL EXPLORE THAT WITH HIM. NOW, MR. GOLDBERG DID SHOW A PICTURE ON DIRECT EXAMINATION OF THE CONSOLE AS IT APPEARED ON AUGUST 26TH AND LAID A FOUNDATION AND I THINK I CAN SHOW IT EXACTLY IN THE RECORD, DOES THIS PICTURE OF THE CONSOLE --

# 20 THE COURT:

WELL, LET'S SEE WHERE THE FOUNDATION GOES.

# 21 MR. SCHECK:

OKAY.

# 22 THE COURT:

AT THIS POINT YOU ARE LIMITED TO THE TWO DOCUMENTS.

# 23 MR. SCHECK:

I UNDERSTAND.

Temperature

tense

Key Quotes (4)

Barry Scheck

I WANT TO EXPLORE THE FACT THAT MAYBE HE IS CONFUSING THESE TWO INCIDENTS AND THAT IN FACT NO DETECTIVE CAME AND OPENED THE CAR ON JUNE 14TH.

Core defense theory: Fung's records are internally inconsistent, casting doubt on whether the Bronco was properly secured at the print shack on June 14th.

Lance A. Ito

MAYBE HE IS CONFUSED WHICH ONE IS WHICH, AND IT GOES TO WHETHER OR NOT THE BRONCO WAS ACTUALLY SECURED WHILE IT WAS AT THE PRINT SHACK, SO THERE IS AN EVIDENCE ISSUE THERE.

Ito himself articulates the evidentiary significance of the checklist discrepancy, effectively validating Scheck's argument on that narrow point.

Barry Scheck

VERY SIMILAR, IF NOT ALMOST IDENTICAL LOOKING STAINS, EXCEPT ADDITIONAL ONES ARE THEN FOUND ON AUGUST 26TH, EVEN THOUGH HE SWATCHED IT ON JUNE 14TH.

Scheck previews a key contamination/planting argument — new blood stains appearing in the Bronco months after Fung supposedly collected all available samples.

Hank Goldberg

THEY CAN CALL HIM AS THEIR WITNESS. THEY HAVE COVERED ENOUGH WITH HIM.

Prosecution's position that cross-examination has exceeded its proper scope and defense should use its own case-in-chief to explore additional topics.

Evidence (5)

Informal

Prosecution's Bronco chart showing pictures of vehicle interior (no dates, per Goldberg)

disputed — Scheck claimed it showed June 13th, 14th, August 16th, September 1st; Goldberg denied it had dates

Informal

Vehicle checklist for June 14th — blank entry where B.A.D. detective access would be noted

discussed as potential evidence of confusion with June 28th checklist

Informal

Vehicle checklist for June 28th — indicates B.A.D. detectives opened the car

discussed as basis for impeaching Fung's account of June 14th

Informal

Shovel and plastic bag observed in Bronco on June 13th, 14th, and searched June 28th

Scheck sought to question about these; excluded by scope ruling

Informal

Console blood stains swatched June 14th; additional similar stains found August 26th

Scheck flagged for future examination; Ito deferred ruling pending foundation

Notable Exchanges (3)

Barry Scheck•Lance A. Ito

Ito initially doubted that the prosecution's Bronco chart contained dated photos, prompting a minor dispute; Ito offered to look at the chart himself before ruling.

procedural

Barry Scheck•Hank Goldberg•Lance A. Ito

Scheck attempted to expand the scope of cross to include the shovel and plastic bag; Goldberg objected; Ito sustained, capping Scheck to the checklist discrepancy only.

tense

Barry Scheck•Lance A. Ito

Scheck previewed the August 26th blood stain argument — new stains appearing after Fung's June 14th swabbing — and pointed to Goldberg's direct examination of the console photo as a hook for cross. Ito declined to rule in advance, saying 'let's see where the foundation goes.'

strategic

Credibility Attacks (2)

⚔ Dennis Fung

prior inconsistent statement / document discrepancy

Scheck argued Fung's June 14th and June 28th vehicle checklists are contradictory on whether B.A.D. detectives opened the Bronco, suggesting Fung may be confusing the two dates — undermining his account of the car's security at the print shack.

⚔ Dennis Fung

failure to follow protocol

Scheck noted Fung's own rules require swatching and collecting as much blood as possible, yet additional near-identical stains appeared on the Bronco console in August after his June 14th collection — implying either incomplete work or evidence contamination.

Objections

1 objections (1 sustained, 0 overruled)

Proceeding 5641 • 23 utterances

Criminal Trial

Department 103