Cross-examination of Dennis Fung (afternoon, part 2)

📄 Cross-examination of Dennis Fung (afternoon, part 2) — Wednesday, April 12, 1995

Address:

C:\DEPT103\CRIMINAL\1995\APR\12\CROSS-EXAMINATION-OF-DENNIS-FU.DOC

TRIAL

▲ Day 55 of 167

◀ Sidebar: document authentication Motion: videotape evidence admission ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Prosecution • Date: Wednesday, April 12, 1995 • Utterances: 105

Barry Scheck cross-examines LAPD criminalist Dennis Fung about chain of custody for OJ Simpson's blood vial, pressing him on whether it would have been improper for Detectives Lange and Vannatter to keep the blood overnight before delivering it to SID. Fung concedes he 'wouldn't recommend' storing blood evidence in a detective's home refrigerator but stops short of calling it improper. The session ends with Scheck moving to show the jury video of an alleged 'slip' Fung made during direct examination about when he received the blood vial.

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

# 2 THE COURT:

PROCEED WITH INCREASED ALACRITY.

# 3 Q:

BY MR. SCHECK: MR. FUNG, YOU RECOGNIZE THIS DOCUMENT AS BEING THE LOS ANGELES POLICE DEPARTMENT MANUAL RULE CONCERNING BOOKING, CUSTODY AND DISPOSITION OF PROPERTY, OR PAGE FROM THOSE RULES?

# 4 A:

IT HAS THE SAME FORMAT AS THE LAPD MANUAL, YES.

# 5 Q:

AND THE LAPD MANUAL RULES ON THE BOOKING, CUSTODY AND DISPOSITION OF PROPERTY ARE RULES YOU ARE FAMILIAR WITH BECAUSE THAT IS PART OF YOUR JOB AS A CRIMINALIST?

# 6 A:

I HAVEN'T READ THIS, PER SAY, BUT I DO FOLLOW THE CUSTOM THAT I HAVE BEEN TAUGHT IN THE LABORATORY.

# 7 Q:

AND IS ONE OF THE -- I DIRECT YOUR ATTENTION TO A PARAGRAPH HERE AND ASK YOU TO READ IT TO YOURSELF.

# 8 A:

(WITNESS COMPLIES.) OKAY.

# 9 Q:

ALL RIGHT. DOES THAT REFRESH YOUR RECOLLECTION THAT THERE IS -- WE WILL CALL IT A RULE OR A GUIDELINE, WHICHEVER YOU LIKE, THAT EVIDENCE SHALL NOT BE STORED IN THE PERSONAL PROCESS OF ANY EMPLOYEE EXCEPT FOR FORGERY-RELATED MATERIAL?

# 10 MR. GOLDBERG:

NO AUTHENTICATION, HEARSAY, NO FOUNDATION.

# 11 THE COURT:

SUSTAINED.

# 12 Q:

BY MR. SCHECK: DO YOU HAVE -- HAVE YOU EVER BEEN TOLD THAT EVIDENCE OR NON-EVIDENCE IS NOT TO BE STORED IN THE PERSONAL POSSESSION OF A POLICE OFFICER?

# 13 MR. GOLDBERG:

CALLS FOR HEARSAY.

# 14 THE COURT:

SUSTAINED.

# 15 Q:

BY MR. SCHECK: WERE YOU EVER GIVEN INSTRUCTION BY ANYONE AT SID THAT DETECTIVES ARE NOT SUPPOSED TO STORE ITEMS OF EVIDENCE IN THEIR PERSONAL POSSESSION?

# 16 MR. GOLDBERG:

STILL CALLS FOR HEARSAY AND IRRELEVANT.

# 17 THE COURT:

MR. SCHECK, WHY DON'T YOU REPHRASE THE QUESTION IN THE SAME MANNER THAT THE WITNESS HAS ANSWERED THE QUESTION. HIS UNDERSTANDING IS FROM CUSTOM THAT HE HAS BEEN TAUGHT IN THE LABORATORY. ASK HIM IF IT COMPORTS WITH THAT.

# 18 MR. SCHECK:

THANK YOU, YOUR HONOR.

# 19 THE COURT:

THAT WOULD BE AN APPROPRIATE QUESTION.

# 20 Q:

BY MR. SCHECK: IN TERMS OF THE CUSTOM THAT YOU HAVE BEEN TAUGHT IN THE LABORATORY, HAS IT BEEN BROUGHT TO YOUR ATTENTION THAT EVIDENCE OR NON-EVIDENCE SHALL NOT BE STORED IN THE PERSONAL POSSESSION OF ANY EMPLOYEE?

# 21 A:

THAT SUBJECT HAS NEVER BEEN ADDRESSED TO ME.

# 22 Q:

SO AS FAR AS YOU KNEW, FROM THE CUSTOM AND PRACTICE IN THE LABORATORY, IT WOULD BE PERFECTLY ALL RIGHT FOR A DETECTIVE TO TAKE EVIDENCE, BRING IT HOME AND THEN DELIVER IT TO YOU THE NEXT DAY?

# 23 MR. GOLDBERG:

NO FOUNDATION FOR THAT.

# 24 THE COURT:

SUSTAINED.

# 25 Q:

BY MR. SCHECK: WHEN DETECTIVE LANGE GAVE YOU THE SNEAKERS DID YOU SUSPECT THAT THERE MIGHT HAVE BEEN ANYTHING WRONG IN THE WAY THAT HE WAS DELIVERING TO YOU -- THEM TO YOU FOR PURPOSES OF BOOKING?

# 26 A:

NO.

# 27 Q:

DID YOU MENTION TO DETECTIVE LANGE THAT YOU HAD SOME QUESTIONS ABOUT HOW HE CAME TO BE IN POSSESSION OF THOSE SNEAKERS THAT MORNING?

# 28 A:

NO.

# 29 Q:

DID YOU MENTION TO IT MR. MATHESON?

# 30 MR. GOLDBERG:

IRRELEVANT.

# 31 THE COURT:

OVERRULED.

# 32 DENNIS FUNG:

I DIDN'T MENTION IT TO HIM, NO.

# 33 Q:

BY MR. SCHECK: DO YOU BELIEVE, MR. FUNG, IN ACCORDANCE WITH THE CUSTOM AND PRACTICE OF YOUR LABORATORY, THAT DETECTIVES HAVE 24 HOURS TO BOOK BLOOD?

# 34 MR. GOLDBERG:

NO FOUNDATION, YOUR HONOR.

# 35 THE COURT:

OVERRULED.

# 36 DENNIS FUNG:

I HAVE READ THAT IN THE MANUAL.

# 37 Q:

BY MR. SCHECK: IN THE MANUAL?

# 38 A:

YOU SHOWED IT TO ME THIS MORNING, DIDN'T YOU, SOMETHING LIKE THAT? NO?

KEY QUOTE

# 39 Q:

WHAT MANUAL?

# 40 A:

THE LAPD MANUAL.

# 41 Q:

YOU THINK IN THE LAPD MANUAL THERE IS PROVISION THAT SAYS DETECTIVES HAVE 24 HOURS TO BOOK BLOOD?

# 42 A:

I MAY BE MISTAKEN. THERE WAS SOMETHING TO THAT EFFECT OF BOOKING AS SOON AS POSSIBLE OR 24 HOURS OR SOMETHING LIKE THAT.

# 43 Q:

WELL, IS BOOKING AS SOON AS POSSIBLE THE SAME AS 24 HOURS, AS FAR AS YOU ARE CONCERNED?

# 44 MR. GOLDBERG:

ARGUMENTATIVE.

# 45 THE COURT:

SUSTAINED.

# 46 Q:

BY MR. SCHECK: DID DETECTIVE LANGE EVER TELL YOU THAT DETECTIVES HAVE 24 HOURS TO BOOK BLOOD?

# 47 MR. GOLDBERG:

CALLS FOR HEARSAY AND IRRELEVANT.

# 48 DENNIS FUNG:

NO.

# 49 THE COURT:

OVERRULED.

# 50 Q:

BY MR. SCHECK: DETECTIVE VANNATTER?

# 51 A:

NO.

# 52 Q:

IF YOU RECEIVED BLOOD ON THE MORNING OF JUNE 14TH AT SID FOR THE FIRST TIME, IN YOUR JUDGMENT WOULD THAT HAVE BEEN IMPROPER?

# 53 MR. GOLDBERG:

NO FOUNDATION.

# 54 THE COURT:

SUSTAINED.

# 55 Q:

BY MR. SCHECK: AS FAR AS YOU UNDERSTOOD THE GUIDELINES OF THE LOS ANGELES POLICE DEPARTMENT, WOULD IT HAVE BEEN IMPROPER FOR EITHER DETECTIVE LANGE OR VANNATTER TO HAVE GOTTEN THE BLOOD FROM MR. SIMPSON ON JUNE 13TH, KEPT IT IN THEIR POSSESSION AND THEN DELIVERED IT TO YOU IN THE MORNING ON JUNE 14TH?

# 56 MR. GOLDBERG:

CALLS FOR SPECULATION AND NO FOUNDATION.

# 57 THE COURT:

SUSTAINED.

# 58 MR. SCHECK:

YOUR HONOR, I AM TRYING TO --

# 59 THE COURT:

I UNDERSTAND WHAT YOU ARE TRYING TO DO, BUT THE FOUNDATION IS NOT THERE.

# 60 MR. SCHECK:

ALL RIGHT.

# 61 Q:

LET ME ASK YOU A HYPOTHETICAL QUESTION. LET US ASSUME THAT YOU RECEIVED THE BLOOD THAT HAD BEEN DRAWN FROM MR. SIMPSON ON JUNE 13TH ON THE MORNING OF JUNE 14TH. ARE YOU WITH ME?

# 62 A:

YES.

# 63 Q:

IF THAT HAD OCCURRED, IN YOUR JUDGMENT WOULD THAT HAVE BEEN IMPROPER ON THE PART OF THE DETECTIVES?

# 64 MR. GOLDBERG:

IMPROPER HYPOTHETICAL; NO FOUNDATION, CALLS FOR AN OPINION.

# 65 THE COURT:

SUSTAINED.

# 66 MR. SCHECK:

MAY I HAVE A MOMENT?

# 67 THE COURT:

CERTAINLY. THE PROBLEM HERE IS FOUNDATION, COUNSEL.

# 68 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)

# 69 Q:

BY MR. SCHECK: IN TERMS OF THE CUSTOM AND PRACTICE OF YOUR LABORATORY AND ITS WORKINGS WITH DETECTIVES, WOULD IT HAVE BEEN IMPROPER IF EITHER OF THESE DETECTIVES HAD KEPT THE BLOOD DRAWN FROM MR. SIMPSON ON JUNE 13TH OVERNIGHT IN THEIR PERSONAL POSSESSION AND THEN DELIVERED IT TO YOU THE NEXT MORNING ON JUNE 14TH?

# 70 MR. GOLDBERG:

IMPROPER HYPOTHETICAL, CALLS FOR AN OPINION, NO FOUNDATION.

# 71 THE COURT:

OVERRULED.

# 72 DENNIS FUNG:

THAT WOULD DEPEND ON HOW THE BLOOD WAS STORED IN THERE WHILE IT WAS IN THEIR CUSTODY.

# 73 Q:

BY MR. SCHECK: YOU MEAN IF THEY PUT IT IN THEIR REFRIGERATOR AT HOME, THEN IN TERMS OF YOUR UNDERSTANDING OF CUSTOM AND PRACTICE, THAT WOULD HAVE BEEN OKAY?

# 74 MR. GOLDBERG:

THERE IS STILL NO FOUNDATION.

# 75 THE COURT:

OVERRULED.

# 76 DENNIS FUNG:

ACCORDING TO HOW I UNDERSTAND IT, YES. I WOULDN'T RECOMMEND IT.

KEY QUOTE

# 77 Q:

BY MR. SCHECK: WHY WOULDN'T YOU RECOMMEND IT?

# 78 A:

PUTTING BLOOD IN YOUR OWN REFRIGERATOR, I JUST WOULDN'T RECOMMEND IT.

KEY QUOTE

# 79 Q:

WELL, ISN'T ONE REASON THAT YOU WOULDN'T RECOMMEND IT, MR. FUNG, IS THAT IN TERMS OF CHAIN OF CUSTODY IT WOULD BE HIGHLY IMPROPER FOR A DETECTIVE TO KEEP A BLOOD VIAL OVERNIGHT --

# 80 THE COURT:

SUSTAINED.

# 81 Q:

BY MR. SCHECK: MR. FUNG, ARE YOU FEARFUL OF THESE DETECTIVES, VANNATTER AND LANGE?

# 82 A:

I'M NOT FEARFUL OF THEM, NO.

# 83 Q:

ARE YOU AWARE -- WHO -- MICHELE KESTLER IS THE HEAD OF THE LABORATORY?

# 84 A:

YES, SHE IS.

# 85 Q:

ARE YOU AWARE THAT HER HUSBAND WORKS AS A DETECTIVE IN ROBBERY/HOMICIDE WITH DETECTIVES LANGE AND VANNATTER?

# 86 MR. GOLDBERG:

ASSUMES FACTS NOT IN EVIDENCE AND IT IS ALSO IRRELEVANT.

# 87 THE COURT:

OVERRULED.

# 88 DENNIS FUNG:

YES, I AM.

# 89 Q:

BY MR. SCHECK: ARE YOU FEARFUL, SIR, THAT IN A DISPUTE BETWEEN YOURSELF AND EITHER DETECTIVE LANGE OR VANNATTER THAT YOU COULD NOT COUNT ON THE SUPPORT OF MICHELE KESTLER?

# 90 MR. GOLDBERG:

THIS IS -- I WILL WITHDRAW THE OBJECTION.

# 91 DENNIS FUNG:

NO.

# 92 Q:

BY MR. SCHECK: DID YOU RECEIVE MR. SIMPSON'S BLOOD VIAL ON JUNE 14TH AFTER YOU RECEIVED THE SNEAKERS FROM DETECTIVE LANGE?

# 93 A:

I RECEIVED THE BLOOD VIAL FROM MR. SIMPSON OF -- OF MR. SIMPSON ON JUNE 13TH AT THE ROCKINGHAM ADDRESS.

# 94 Q:

SO YOUR TESTIMONY IS YOU DID NOT RECEIVE THE SNEAKERS FIRST ON THE MORNING OF JUNE 14TH AND THEN THE BLOOD VIAL?

# 95 A:

THAT IS CORRECT.

# 96 Q:

DO YOU REMEMBER BEING ASKED ON DIRECT EXAMINATION WHICH ITEM YOU RECEIVED FIRST, THE SNEAKERS OR THE BLOOD VIAL?

# 97 A:

I DON'T SPECIFICALLY RECALL THAT QUESTION, NO.

# 98 Q:

DO YOU REMEMBER MAKING A SLIP ON DIRECT EXAMINATION WHEN YOU ANSWERED THAT QUESTION?

KEY QUOTE

# 99 A:

NO, I DON'T.

# 100 MR. SCHECK:

YOUR HONOR, I WOULD LIKE TO SHOW A PIECE OF VIDEO. IT IS --

# 101 THE COURT:

I WOULD LIKE TO SEE IT FIRST.

# 102 MR. SCHECK:

YES.

# 103 THE COURT:

DOES IT HAVE AUDIO?

# 104 MR. SCHECK:

YES, IT DOES.

# 105 THE COURT:

ALL RIGHT. LET'S HAVE THE JURORS TO STEP BACK IN THE JURY ROOM, PLEASE.

Temperature

tense

Key Quotes (4)

Dennis Fung

ACCORDING TO HOW I UNDERSTAND IT, YES. I WOULDN'T RECOMMEND IT.

Fung essentially concedes that keeping a blood vial in a detective's home refrigerator overnight would have been technically permissible under his understanding of lab custom — a damaging admission for the prosecution's chain of custody.

Dennis Fung

PUTTING BLOOD IN YOUR OWN REFRIGERATOR, I JUST WOULDN'T RECOMMEND IT.

Fung's awkward hedge — declining to call it 'improper' while admitting he'd advise against it — undercuts the integrity of the evidence chain without Scheck having to push further.

Dennis Fung

YOU SHOWED IT TO ME THIS MORNING, DIDN'T YOU, SOMETHING LIKE THAT? NO?

Fung confuses what he actually knows about LAPD manual rules vs. what Scheck showed him during prep, revealing shaky command of the written policies he's supposed to follow.

Barry Scheck

DO YOU REMEMBER MAKING A SLIP ON DIRECT EXAMINATION WHEN YOU ANSWERED THAT QUESTION?

Scheck signals he has video evidence of a prior inconsistent statement, setting up an impeachment that causes the judge to clear the jury before viewing.

Evidence (4)

Informal

LAPD Manual — Booking, Custody and Disposition of Property

Scheck attempts to use it to establish that evidence cannot be stored in personal possession of an employee; objections sustained on authentication and foundation grounds

Informal

OJ Simpson's blood vial drawn June 13th

Central subject of chain-of-custody questioning — whether Lange/Vannatter improperly kept it overnight before delivering to SID

Informal

OJ Simpson's sneakers

Referenced to establish timeline — Scheck probing whether sneakers or blood vial arrived at SID first on June 14th

Informal

Video of Fung's direct examination testimony

Scheck moves to play for jury; judge clears jury to preview it first; alleged to show Fung making a 'slip' about when he received the blood vial

Notable Exchanges (4)

Barry Scheck•Dennis Fung

Scheck walks Fung through a hypothetical about detectives keeping Simpson's blood in a home refrigerator overnight. Fung says it would depend on storage conditions, then admits he 'wouldn't recommend it' — without ever calling it improper. Scheck can't get him to use the word 'improper' due to repeated sustained objections.

strategic

Barry Scheck•Dennis Fung

Scheck asks whether Fung is 'fearful' of Detectives Lange and Vannatter, then reveals that lab director Michele Kestler's husband is a detective in the same unit as Lange and Vannatter. Scheck probes whether Fung felt he couldn't count on Kestler's support in a dispute with those detectives. Fung denies any fear.

revealing

Barry Scheck•Dennis Fung

Scheck asks Fung whether he made a 'slip' on direct examination about the order in which he received the sneakers vs. the blood vial. Fung says he doesn't recall the question or any slip. Scheck then moves to show video, which prompts the judge to clear the jury.

strategic

Lance A. Ito•Barry Scheck

After several sustained objections on foundation, judge intervenes to coach Scheck on how to properly frame his question — suggesting he ask whether the scenario 'comports with' the custom and practice Fung has already acknowledged. Scheck thanks the judge and uses the reframe successfully.

procedural

Credibility Attacks (3)

⚔ Dennis Fung

prior inconsistent statement (video)

Scheck asks Fung if he remembers making a 'slip' on direct examination about the sequence in which he received the sneakers and blood vial. Fung denies it. Scheck moves to play video to impeach him, causing the judge to clear the jury for a preview.

⚔ Dennis Fung

knowledge gaps / unfamiliarity with governing rules

Fung admits he has never read the LAPD manual rule prohibiting personal possession of evidence, and confuses what he actually knows with what Scheck may have shown him that morning — undermining his authority as a trained criminalist.

⚔ Dennis Fung

bias / institutional pressure

Scheck establishes that lab director Kestler's husband works in the same Robbery/Homicide unit as Lange and Vannatter, then probes whether Fung felt unable to challenge those detectives — implying institutional bias that could explain his failure to question the irregular delivery of evidence.

Objections

15 objections (8 sustained, 6 overruled)

Proceeding 5665 • 105 utterances • Prosecution witness

Criminal Trial

Department 103