Cross-examination of Dennis Fung (morning, part 1)

📄 Cross-examination of Dennis Fung (morning, part 1) — Wednesday, April 12, 1995

Address:

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

TRIAL

▲ Day 55 of 167

◀ Audience conduct and test procedures Sidebar: document admissibility ▶

Witness: Dennis Fung
Examiner: Barry Scheck
Called by: Prosecution • Date: Wednesday, April 12, 1995 • Utterances: 239

Barry Scheck continues his cross-examination of LAPD criminalist Dennis Fung, methodically using Barry Fisher's authoritative forensic textbook to challenge Fung's blood evidence collection methods. The centerpiece is the revelation that Fung stored wet blood swatches in plastic bags inside a warm crime scene truck for approximately seven hours — a practice the Fisher text warns will render samples 'useless as evidence in a matter of days.' Scheck also exposes a broken refrigerator in the crime scene truck, gaps in Fung's training records, and moves toward introducing a missing original lab document.

# 1 (THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT, IN THE PRESENCE OF THE JURY:)

# 2 THE COURT:

ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. PLEASE BE SEATED. ALL RIGHT. LET THE RECORD REFLECT WE HAVE BEEN REJOINED BY ALL THE MEMBERS OF OUR JURY PANEL. GOOD MORNING, LADIES AND GENTLEMEN.

# 3 THE JURY:

GOOD MORNING.

# 4 THE COURT:

MR. FUNG, WOULD YOU RESUME THE WITNESS STAND, PLEASE.

DENNIS FUNG, THE WITNESS ON THE STAND AT THE TIME OF THE EVENING ADJOURNMENT, RESUMED THE STAND AND TESTIFIED FURTHER AS FOLLOWS:

# 5 THE COURT:

ALL RIGHT. GOOD MORNING, MR. FUNG.

# 6 DENNIS FUNG:

GOOD MORNING.

# 7 THE COURT:

YOU ARE REMINDED YOU ARE STILL UNDER OATH. MR. FUNG IS UNDERGOING CROSS-EXAMINATION BY MR. SCHECK. MR. SCHECK, YOU MAY CONTINUE AND CONCLUDE YOUR CROSS-EXAMINATION.

# 8 MR. SCHECK:

THANK YOU, YOUR HONOR. GOOD MORNING, LADIES AND GENTLEMEN OF THE JURY.

# 9 THE JURY:

GOOD MORNING.

# 10

CROSS-EXAMINATION (RESUMED)

# 11

BY MR. SCHECK:

# 12 Q:

GOOD MORNING, MR. FUNG. HOW ARE TODAY, SIR?

# 13 A:

GOOD MORNING.

# 14 Q:

MR. FUNG, JUST TO RETURN BRIEFLY TO ONE POINT, YOU RECALL THAT WE DISCUSSED BARRY FISHER'S BOOK "TECHNIQUES OF CRIME SCENE INVESTIGATION"?

# 15 A:

YES.

# 16 Q:

AND YOU INDICATED THAT YOU WERE FAMILIAR WITH AT LEAST ONE EDITION OF THIS BOOK?

# 17 A:

PORTIONS OF ONE EDITION, YES.

# 18 Q:

AND THAT YOU HAD CONSIDERED THIS TEXT IN THE FORMATION OF YOUR OPINIONS AS A CRIMINALIST?

# 19 A:

YES.

# 20 MR. GOLDBERG:

THAT MISSTATES THE EVIDENCE.

# 21 THE COURT:

OVERRULED.

# 22 Q:

BY MR. SCHECK: I WOULD LIKE TO CALL YOUR ATTENTION, SIR, TO A PASSAGE THAT I COULD NOT FIND YESTERDAY WITH RESPECT TO FISHER'S VIEWS ON THE COLLECTION AND PRESERVATION OF BLOOD STAINS. AND I CALL YOUR ATTENTION TO THE FIRST PARAGRAPH HERE ON PAGE 227.

# 23 THE COURT:

ALL RIGHT. HAVE YOU SHOWN THAT TO COUNSEL?

# 24 MR. SCHECK:

I THINK HE HAS THE BOOK.

# 25 MR. GOLDBERG:

MAY I HAVE A MOMENT?

# 26 THE COURT:

CERTAINLY. WHY DON'T YOU TAKE THIS OPPORTUNITY, MR. FUNG, YOU CAN READ THE PARAGRAPH AND SEE IF YOU ARE FAMILIAR WITH THAT.

# 27 MR. GOLDBERG:

WHAT PAGE, COUNSEL?

# 28 MR. SCHECK:

227.

# 29 (BRIEF PAUSE.)

# 30 Q:

BY MR. SCHECK: MR. FUNG, YOU AGREE THAT THIS IS A SECTION IN FISHER CONCERNING THE COLLECTION AND PRESERVATION OF BLOOD STAINS?

# 31 A:

YES.

# 32 Q:

AND FISHER STATES THAT "OF ALL THE COMMON TYPES OF" --

# 33 MR. GOLDBERG:

WAIT A MINUTE, YOUR HONOR. I WILL OBJECT. THERE IS NO EVIDENCE THAT HE READ THIS EDITION.

# 34 THE COURT:

FOUNDATIONAL OBJECTION?

# 35 MR. GOLDBERG:

YES.

# 36 THE COURT:

SUSTAINED.

# 37 MR. SCHECK:

ALL RIGHT.

# 38 Q:

ARE YOU FAMILIAR WITH THIS PASSAGE IN THE FISHER BOOK IN THE EDITION THAT YOU READ?

# 39 A:

I DON'T REMEMBER IT.

# 40 Q:

ALL RIGHT. DO YOU RECALL IN THE EDITION THAT YOU READ ANYTHING THAT FISHER SAID WITH RESPECT TO THE FACT THAT "IT IS A CERTAINTY THAT WET OR DAMP BLOOD STAINS PACKAGED IN AIRTIGHT CONTAINERS" --

# 41 MR. GOLDBERG:

YOUR HONOR, I OBJECT.

# 42 THE COURT:

SUSTAINED. THERE IS A FOUNDATIONAL OBJECTION.

# 43 MR. SCHECK:

OKAY.

# 44 Q:

IN THE EDITION THAT YOU READ DO YOU RECALL MR. FISHER OFFERING A VIEW AS TO WHETHER OR NOT WET BLOOD STAINS OUGHT TO BE PACKAGED IN AIRTIGHT --

# 45 THE COURT:

SUSTAINED. MR. FUNG, IN YOUR READING OF THIS BOOK, BARRY FISHER'S BOOK, ARE YOU FAMILIAR WITH THIS PARTICULAR SECTION REGARDING THE COLLECTION OF BLOOD EVIDENCE?

# 46 DENNIS FUNG:

I DON'T RECALL READING THIS PARTICULAR SECTION.

# 47 THE COURT:

ALL RIGHT. DID YOU REVIEW IT HERE JUST NOW?

# 48 DENNIS FUNG:

YES, I DID.

# 49 THE COURT:

DID IT APPEAR FAMILIAR TO YOU AT ALL?

# 50 DENNIS FUNG:

I HAVE READ SIMILAR TYPES OF THINGS BEFORE, BUT I'M NOT SURE IT IS FROM THAT BOOK.

# 51 THE COURT:

ALL RIGHT. ARE THESE MATERIALS THAT YOU HAVE RELIED UPON IN FORMING YOUR OPINION IN EXPRESSING THE OPINIONS THAT YOU HAVE GIVEN IN TESTIMONY SO FAR?

# 52 DENNIS FUNG:

YES.

# 53 THE COURT:

PROCEED.

# 54 MR. SCHECK:

ALL RIGHT.

# 55 Q:

UMM, DO YOU RECALL, IN THE EDITION OF FISHER THAT YOU READ, WHETHER MR. FISHER INDICATES THAT: "IT IS A CERTAINTY THAT WET OR DAMP BLOOD STAINS PACKAGED IN AIRTIGHT CONTAINERS SUCH AS PLASTIC BAGS WILL BE USELESS AS EVIDENCE IN A MATTER OF DAYS"?

# 56 A:

I DON'T RECALL THAT, BUT THAT IS WHAT IT SAYS IN THIS BOOK.

# 57 Q:

AND THAT: "ANY TYPE OF PRESERVATION TECHNIQUE THAT HASTENS PUTREFACTION SHOULD BE AVOIDED"?

# 58 A:

YES.

# 59 Q:

PUTREFACTION WOULD BE DEGRADATION?

# 60 A:

YES.

# 61 Q:

"THUS STORING BLOOD STAINS THAT ARE STILL DAMP IN AIRTIGHT CONTAINERS OR IN WARM ENVIRONMENTS WILL ACCELERATE DETERIORATION OF THE SPECIMEN"?

# 62 A:

THAT'S CORRECT.

# 63 Q:

"CONVERSELY, AN AIR DRIED SAMPLE STORED IN A PAPER BAG AT ROOM TEMPERATURE, OR BETTER, UNDER REFRIGERATION, WILL RETAIN ITS EVIDENTIARY USEFULNESS FOR A SIGNIFICANTLY LONGER PERIOD OF TIME"?

# 64 A:

THAT'S CORRECT.

# 65 Q:

DO YOU AGREE WITH MR. FISHER?

# 66 A:

MR. FISHER IS REFERRING TO FINAL PACKAGING IN THAT SECTION AND I DO AGREE WITH THAT.

# 67 Q:

WELL, WHERE IN THIS PASSAGE DO YOU SEE ANY REFERENCE TO MR. FISHER SAYING THAT HIS ADMONITION AGAINST USING PLASTIC OR AIRTIGHT CONTAINERS ONLY APPLIES FOR FINAL PACKAGING?

# 68 A:

WELL, IN THIS ONE PHRASE HERE IT SAYS, "WILL BE USELESS AS EVIDENCE IN A MATTER OF DAYS," THAT TO ME MEANS THAT THAT WOULD BE FINAL PACKAGING.

# 69 Q:

WELL, IN THE NEXT PARAGRAPH DOES NOT FISHER STATE: "ONCE BLOOD EVIDENCE HAS BEEN FOUND, IT MUST BE COLLECTED AND PRESERVED IN SUCH A MANNER TO ACHIEVE MAXIMUM BENEFIT. ALL TOO OFTEN IMPROPER COLLECTION AND PRESERVATION OF THIS TYPE OF EVIDENCE MAKE THE CRIME LABORATORY'S WORK DIFFICULT AND SOMETIMES IMPOSSIBLE"?

# 70 (NO AUDIBLE RESPONSE.)

# 71 Q:

THE VERY NEXT PARAGRAPH?

# 72 A:

I DID COLLECT IT AND PRESERVE -- PRESERVE IT IN A MANNER TO MAXIMUM BENEFIT BY PUTTING IT IN PLASTIC AS AN INTERMEDIATE STEP TO PREVENT CONTAMINATION.

# 73 Q:

DOES NOT FISHER INDICATE IN THIS PASSAGE THAT: "TO MAINTAIN THE MAXIMUM BENEFIT ONE SHOULD ATTEMPT TO AIR DRY THE SAMPLES AT THE SCENE"?

# 74 MR. GOLDBERG:

I OBJECT. THAT MISSTATES THE EVIDENCE, YOUR HONOR.

# 75 THE COURT:

SUSTAINED. REREAD THE PASSAGE.

# 76 Q:

BY MR. SCHECK: DOES NOT FISHER BEGIN THIS WHOLE SECTION BY SAYING: "OF ALL THE COMMON TYPES OF EVIDENCE FOUND AT CRIME SCENES, BLOOD IS PERHAPS THE MOST FRAGILE. THE VALUE OF BLOOD STAINS FOR TYPING BEGINS TO DIMINISH ALMOST IMMEDIATELY"? YES?

# 77 A:

YES.

# 78 Q:

"THE STABILITY AND UTILITY OF BLOOD STAINS VARIES FROM SEVERAL DAYS TO MONTHS DEPENDING ON THE BLOOD GROUPING SYSTEM SOUGHT"?

# 79 A:

YES.

# 80 Q:

"NATURALLY, PROPER PRESERVATION PROCEDURES IMPROVE THE CHANCES OF DETERMINING BLOOD TYPES"?

# 81 A:

YES.

# 82 Q:

SO FROM READING THIS PASSAGE WOULD YOU NOT AGREE THAT FISHER IS COMMUNICATING THE FACT THAT ONE SHOULD AVOID AT ANY TIME PUTTING WET BLOOD STAINS IN PLASTIC CONTAINERS?

# 83 A:

I DON'T THINK THAT IS WHAT HE IS SAYING THERE.

# 84 Q:

SO YOUR POSITION IS THAT IT IS OKAY TO USE PLASTIC BAGS TO PACKAGE WET BROOD STAINS AS LONG AS IT IS TEMPORARY?

# 85 A:

WHAT DO YOU MEAN BY "TEMPORARY"?

# 86 Q:

WELL, WHAT DO YOU MEAN BY "TEMPORARY"?

# 87 MR. GOLDBERG:

WELL, YOUR HONOR, COUNSEL IS THE ONE THAT USED IT.

# 88 THE COURT:

REPHRASE THE QUESTION.

# 89 Q:

BY MR. SCHECK: HOW LONG -- HOW LONG DO YOU THINK IT WOULD BE SOUND TO KEEP WET BLOOD STAINS, SWATCHES WE ARE TALKING ABOUT, IN PLASTIC CONTAINERS?

# 90 A:

THAT WOULD BE -- THERE WOULD BE MANY FACTORS THAT WOULD GO INTO THAT.

# 91 Q:

WOULD YOU NOT AGREE THAT THE BEST PRACTICE WOULD BE TO LET THE SAMPLES AIR DRY AT THE SCENE?

# 92 A:

NO, NOT NECESSARILY.

# 93 Q:

WOULD THAT NOT BE THE WAY TO ACHIEVE THE MAXIMUM BENEFIT IN TERMS OF PRESERVING THE EVIDENCE?

# 94 A:

NOT NECESSARILY.

# 95 Q:

NOW, YOU BEGAN COLLECTING THE BLOOD DROPS AT BUNDY AT WHAT TIME?

# 96 A:

APPROXIMATELY ELEVEN O'CLOCK, 11:30, AROUND THERE.

# 97 Q:

YOU BEGAN PUTTING THEM IN PLASTIC BAGS AROUND ELEVEN O'CLOCK, 11:30, YOU AND MISS MAZZOLA?

# 98 A:

APPROXIMATELY.

# 99 Q:

AND YOU PUT THOSE PLASTIC BAGS INSIDE COIN ENVELOPES?

# 100 A:

YES.

# 101 Q:

AND YOU PUT THE COIN ENVELOPES EVENTUALLY INTO A LARGE BROWN PAPER BAG?

# 102 A:

YES.

# 103 Q:

AND YOU PUT THOSE BROWN PAPER BAGS ON THE FLOOR OF THE CRIME SCENE PROCESSING TRUCK AT SOME TIME THAT AFTERNOON?

# 104 A:

YES.

# 105 Q:

AND THE SUN WAS SHINING?

# 106 A:

THE SUN WAS SHINING.

# 107 Q:

AND IT WAS HOT INSIDE THAT TRUCK?

# 108 A:

THERE WERE PERIODS WHEN I WENT OUT TO THE TRUCK TO MAKE SURE IT WASN'T GETTING TOO HOT.

# 109 Q:

WELL, BY WHAT MEANS? BY OPENING THE DOORS AND WAVING YOUR HANDS THERE?

# 110 A:

PERIODICALLY I WOULD GO TO THE TRUCK TO SEE IF IT WAS GETTING HOT OR NOT.

# 111 Q:

WELL, IT WAS GETTING HOT, WASN'T IT?

# 112 A:

IT WAS GETTING WARM.

KEY QUOTE

# 113 Q:

AND YOU DID NOT BEGIN THE PROCESS OF TAKING THOSE WET BLOOD STAINS OUT OF THOSE PLASTIC BAGS UNTIL AROUND 6:30 IN THE EVENING?

# 114 A:

YES.

# 115 Q:

SO YOU HAD THOSE WET STAINS IN THE PLASTIC BAGS FROM I GUESS YOUR ESTIMATE IS SOMEWHERE AROUND 11:30 IN THE MORNING UNTIL 6:30 IN THE EVENING?

# 116 MR. GOLDBERG:

"THOSE STAINS" IS OVERLY BROAD.

# 117 THE COURT:

SUSTAINED. REPHRASE THE QUESTION.

# 118 Q:

BY MR. SCHECK: THE BLOOD SWATCHES THAT YOU COLLECTED AT BUNDY?

# 119 A:

YES.

# 120 Q:

SO LET'S SEE. THAT WOULD BE SOMETHING ON THE ORDER OF SEVEN HOURS?

KEY QUOTE

# 121 A:

YES.

# 122 Q:

IS THAT YOUR INTERPRETATION OF TEMPORARY STORAGE?

KEY QUOTE

# 123 A:

MY GOAL WAS TO GET THE BLOOD I COLLECTED INTO THE DRYING STATE BY THE -- BY THE EVENING, AND I ACCOMPLISHED THAT GOAL, AND I FEEL THAT IS A PROPER OR THAT WAS THE PROPER WAY TO COLLECT AND PRESERVE THAT EVIDENCE.

# 124 Q:

IS THERE A REFRIGERATOR IN THE CRIME SCENE PROCESSING TRUCK?

# 125 A:

THERE IS ONE, YES.

# 126 Q:

YOU DIDN'T USE THAT?

# 127 A:

NO. THAT IS BECAUSE THE REFRIGERATOR DOESN'T -- WELL, IT STOPS WORKING AFTER SEVERAL HOURS. IT DOESN'T KEEP WORKING.

# 128 Q:

IS THAT A DEFECT IN THE REFRIGERATOR OR NON-FUNCTIONAL REFRIGERATOR IN THE CRIME SCENE TRUCK?

# 129 A:

WELL, IT DOES WORK BUT IT HAS BEEN MY --

# 130 THE COURT:

EXCUSE ME, COUNSEL AND MR. FUNG, LET HIM FINISH ASKING THE QUESTION BEFORE YOU START TO ANSWER. MR. SCHECK, LET HIM ANSWER THE QUESTION BEFORE YOU START DISCUSSING IT WITH HIM.

# 131 MR. SCHECK:

I'M SORRY.

# 132 THE COURT:

ALL RIGHT.

# 133 Q:

BY MR. SCHECK: IS THAT A NON-FUNCTIONING REFRIGERATOR? IS THAT WHAT YOU ARE TELLING US?

# 134 A:

IT HAS BEEN MY EXPERIENCE THAT AFTER SEVERAL HOURS THE REFRIGERATOR DOESN'T KICK ON ANY MORE.

KEY QUOTE

# 135 Q:

HAS -- HAVE YOU -- ISN'T IT YOUR RESPONSIBILITY AS A CRIMINALIST UNDER THE RULES TO MAKE SURE THAT THE EQUIPMENT IS FUNCTIONING IN THE CRIME SCENE PROCESSING TRUCK?

# 136 A:

AS BEST I CAN.

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

# 138 Q:

BY MR. SCHECK: DON'T YOU KEEP A LOG WHEN YOU CHECK OUT THE TRUCK IN THE MORNING?

# 139 A:

NO.

# 140 Q:

ISN'T THERE A CRIME SCENE PROCESSING --

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

# 142 Q:

BY MR. SCHECK: ISN'T THERE A CRIME SCENE TRUCK SUPPLIES CHECKLIST?

# 143 A:

I BELIEVE THERE IS ONE, YES.

# 144 Q:

YOU HAVE SEEN IT, HAVEN'T YOU?

# 145 (NO AUDIBLE RESPONSE.)

# 146 MR. SCHECK:

YOUR HONOR, I WOULD ASK THAT THESE FOUR PAGES BE MARKED DEFENDANT'S NEXT IN ORDER.

# 147 THE COURT:

MRS. ROBERTSON.

# 148 THE CLERK:

1095, YOUR HONOR.

# 149 THE COURT:

1095.

# 150 (DEFT'S 1095 FOR ID = 4-PAGE DOCUMENT)

# 151 Q:

BY MR. SCHECK: HAVE YOU SEEN THIS FORM BEFORE?

# 152 A:

I HAVE NOT SEEN THIS FORM BEFORE.

# 153 Q:

YOU HAVE NEVER SEEN A FORM ENTITLED "CRIME SCENE TRUCK CHECKLIST"?

# 154 A:

I HAVE NOT SEEN THIS PARTICULAR FORM BEFORE.

# 155 Q:

HAVE YOU SEEN ONE LIKE IT?

# 156 A:

I HAVE SEEN INVENTORY OF THE ITEMS THAT ARE SUPPOSED TO BE IN THE TRUCK.

# 157 Q:

AND BEFORE YOU TAKE OUT THE TRUCK, AT SOME POINT DO YOU DO AN INVENTORY TO MAKE SURE THAT ALL THE PROPER EQUIPMENT IS IN THE TRUCK?

# 158 A:

THE CRIME SCENE PROCESSING UNIT IS ASSIGNED THAT TASK.

# 159 Q:

ALL RIGHT. SO IT IS YOUR UNDERSTANDING IT IS THE RESPONSIBILITY OF THE CRIME SCENE PROCESSING UNIT TO SEE THAT ALL THE PROPER MATERIALS ARE IN THE TRUCK?

# 160 A:

YES.

# 161 Q:

AND IT IS THEIR RESPONSIBILITY TO MAKE SURE THAT EQUIPMENT SUCH AS THE REFRIGERATOR IS WORKING?

# 162 A:

YES.

# 163 Q:

AND HAD YOU HAD ANY DISCUSSIONS WITH ANY MEMBERS OF THE CRIME SCENE UNIT ABOUT THE FACT THAT THE REFRIGERATOR, I GUESS AS YOU HAVE TOLD US, CAN'T BE RELIED UPON TO FUNCTION OVER A FEW-HOUR PERIOD OF TIME?

# 164 A:

WHEN THE TRUCK -- THE BATTERY -- THE BATTERY JUST DOESN'T WORK AFTER A LONG PERIOD OF TIME AND IT GETS ON -- BUT IT GETS BACK ON WHEN THE TRUCK IS STARTED AGAIN.

# 165 Q:

NOW, MR. FUNG, YOU ARE NOW A CRIMINALIST 3?

# 166 A:

YES.

# 167 Q:

AND WHEN YOU STARTED AT THE LAPD CRIME LAB I TAKE IT YOU BEGAN AS A CRIMINALIST 1?

# 168 A:

YES.

# 169 Q:

AND TO GET FROM A CRIMINALIST 1 TO A CRIMINALIST 2 DID YOU HAVE TO TAKE ANY ORAL OR WRITTEN EXAMINATIONS?

# 170 A:

NO.

# 171 Q:

TO GET FROM A CRIMINALIST 2 TO A CRIMINALIST 3, DID YOU HAVE TO TAKE ANY ORAL OR WRITTEN EXAMINATIONS?

# 172 A:

YES.

# 173 Q:

AND WHAT WERE THOSE, SIR?

# 174 A:

THERE WAS A WRITTEN EXAMINATION AND -- REGARDING LABORATORY TYPE FUNCTIONS AND AN ORAL GIVEN FOR THAT POSITION.

# 175 Q:

AND DID ANY OF THE QUESTIONS ON YOUR ORAL OR WRITTEN EXAMINATION TO BECOME A CRIMINALIST 3 INCLUDE MATERIALS THAT ARE CONTAINED IN THE HANDOUTS THAT CONSTITUTE YOUR MANUAL?

# 176 MR. GOLDBERG:

WELL, THAT MISSTATES THE EVIDENCE AS TO THE MANUAL.

# 177 THE COURT:

OVERRULED.

# 178 DENNIS FUNG:

WERE THERE ANY -- LET ME SEE IF I CAN GET YOUR QUESTION PROPERLY.

# 179 MR. SCHECK:

SURE.

# 180 DENNIS FUNG:

ARE YOU ASKING ME IF ANY WRITTEN QUESTIONS IN THE WRITTEN OR ORAL PERTAIN TO THAT MANUAL?

# 181 Q:

BY MR. SCHECK: PERTAIN TO HANDOUTS THAT ARE CONTAINED IN THAT DOCUMENT WE DISCUSSED A FEW DAYS AGO THAT CONSTITUTES THE MANUAL?

# 182 MR. GOLDBERG:

IT MISSTATES THE TESTIMONY THAT THEY HAVE AN ADOPTED MANUAL.

# 183 THE COURT:

SUSTAINED.

# 184 Q:

BY MR. SCHECK: ALL RIGHT. YOU TOLD US DURING CROSS-EXAMINATION THAT YOU WERE AWARE OF THE EXISTENCE OF A SET OF DOCUMENTS THAT CONSTITUTED A MANUAL, THAT YOU SAID WAS NOT YET IN EFFECT?

# 185 A:

YES.

# 186 Q:

AND YOU LOOKED THROUGH THE BINDER THAT CONTAINED THESE WRITTEN MATERIALS?

# 187 A:

YES, I DID.

# 188 Q:

ALL RIGHT. MY QUESTION TO YOU, SIR, IS WHEN YOU TOOK THE EXAMINATION TO BECOME A CRIMINALIST 3, ORAL AND WRITTEN, DID IT CONTAIN QUESTIONS ON THE MATERIALS THAT YOU SAW WHEN YOU LOOKED THROUGH THAT BINDER THAT IS THE MANUAL?

# 189 A:

I DON'T RECALL ANY SPECIFIC QUESTIONS RELATING TO THAT.

# 190 Q:

IN OTHER WORDS, ALL THAT -- ANY OF THE DOCUMENTS THAT YOU SAW IN THIS MANUAL THAT YOU SAY IS NOT YET IN EFFECT DID NOT PERTAIN TO THE DOCUMENTS IN THE MANUAL?

# 191 A:

I DON'T RECALL ANY SPECIFIC QUESTIONS THAT RELATED TO THAT MANUAL OR ADOPTED MANUAL.

# 192 Q:

DO YOU RECALL -- I'M SORRY, ARE YOU FINISHED, SIR? MY APOLOGIES. DO YOU RECALL ANY QUESTIONS IN YOUR EXAMINATION CONCERNING THE COLLECTION OF BIOLOGICAL SAMPLES, SUCH AS BLOOD, FOR PURPOSES OF SUBSEQUENT GENETIC OR DNA TESTING?

# 193 A:

I DON'T RECALL ANY.

# 194 Q:

DO YOU RECALL ANY QUESTIONS ON YOUR ORAL OR WRITTEN EXAMINATIONS WITH RESPECT TO KEEPING RECORDS FOR PURPOSES OF CHAIN OF CUSTODY?

# 195 A:

NO.

# 196 Q:

AND INCIDENTALLY, MR. FUNG, THAT REFRIGERATOR ON YOUR CRIME SCENE TRUCK, IS THAT USED TO KEEP SOFT DRINKS?

# 197 A:

NO.

# 198 Q:

ALL RIGHT. NOW, ARE THERE RECORDS OF THE COURSES THAT YOU TOOK AT THE LAPD LABORATORY?

# 199 A:

ARE THERE RECORDS?

# 200 Q:

YES.

# 201 A:

THERE IS A STATEMENT OF QUALIFICATIONS.

# 202 Q:

BUT TO YOUR KNOWLEDGE IN THE LABORATORY IS THERE ANY ONGOING SET OF RECORDS THAT IS INPUTTED INTO A COMPUTER SYSTEM OR KEPT IN WRITTEN FORM AS TO WHICH SOURCES YOU OR ANY OF THE OTHER CRIMINALISTS TAKE?

# 203 A:

I'M NOT SURE IF THERE IS OR NOT.

# 204 Q:

NOW, IN TERMS OF DISCUSSING RECORDS FOR PURPOSES OF CHAIN OF CUSTODY, YOU ARE REQUIRED, ARE YOU NOT, TO KEEP ALL THE ORIGINAL RECORDS THAT YOU FILL OUT DURING THE COURSE OF A FIELD INVESTIGATION IN THE LABORATORY?

# 205 A:

I WOULDN'T SAY ALL OF THEM, NO.

# 206 Q:

WELL, AREN'T YOU SUPPOSED TO KEEP, IN A PLACE THAT IS ACCESSIBLE TO SUPERVISORS AND OTHER CRIMINALISTS IN THE LABORATORY, A SET OF DOCUMENTS THAT REPRESENT THE ORIGINAL RECORDS THAT YOU FILL OUT DURING THE COURSE OF A FIELD INVESTIGATION?

# 207 MR. GOLDBERG:

IT IS VAGUE AS TO "SUPPOSED TO."

# 208 THE COURT:

CORRECT. REPHRASE THE QUESTION.

# 209 Q:

BY MR. SCHECK: TO YOUR KNOWLEDGE IS THERE A REQUIREMENT THAT CRIMINALISTS ARE SUPPOSED TO KEEP ORIGINAL RECORDS, CRIME SCENE -- SUCH AS A CRIME SCENE CHECKLIST, IN THE LABORATORY SO THAT SUPERVISORS AND OTHER CRIMINALISTS CAN GET ACCESS TO THEM?

# 210 MR. GOLDBERG:

IT IS STILL VAGUE, YOUR HONOR.

# 211 THE COURT:

OVERRULED.

# 212 DENNIS FUNG:

THE CRIME SCENE CHECKLIST, WHEN COMPLETED OR WHEN THE PERSON IS DONE WITH THE CRIME SCENE CHECKLIST, IS FILED IN AN AREA WHERE THAT TYPE OF INFORMATION IS STORED.

# 213 Q:

BY MR. SCHECK: RIGHT. AND THAT -- WHEN YOU SAY "THOSE RECORDS," WE ARE TALKING HERE ABOUT THE ORIGINAL DOCUMENTS?

# 214 A:

TALKING ABOUT THE CRIME SCENE CHECKLIST, YES.

# 215 Q:

WHEN I SAY "ORIGINAL DOCUMENTS," I MEAN THE ACTUAL DOCUMENTS THAT WERE FILLED OUT BY YOU AND/OR MISS MAZZOLA IN THIS CASE AT THE SCENE AND SUBSEQUENTLY?

# 216 MR. GOLDBERG:

AT THIS TIME IT IS UNINTELLIGIBLE, THE QUESTION.

# 217 THE COURT:

OVERRULED.

# 218 DENNIS FUNG:

COULD YOU REPEAT THE QUESTION?

# 219 Q:

BY MR. SCHECK: SURE. THESE DOCUMENTS THAT YOU'VE TOLD US ARE FILED AND STORED AT THE LABORATORY, THEY ARE THE ORIGINAL DOCUMENTS THAT WERE CREATED BY YOU OR MISS MAZZOLA IN THIS CASE?

# 220 A:

THERE ARE ORIGINAL DOCUMENTS, YES.

# 221 Q:

AND YOU ARE AWARE, SIR -- WITHDRAWN. TO YOUR KNOWLEDGE HAVE THOSE ORIGINAL DOCUMENTS, TO THE EXTENT THEY COULD BE FOUND, BEEN PRODUCED HERE IN COURT AT THE REQUEST OF THE DEFENSE?

# 222 A:

TO THE BEST OF MY KNOWLEDGE.

# 223 Q:

YOU ARE AWARE THAT WE HAVE REQUESTED THAT?

# 224 A:

YES.

# 225 Q:

AND YOU ARE AWARE, SIR, THAT WE HAD THESE DOCUMENTS REVIEWED, PRIOR TO YOUR TESTIMONY, BY A DOCUMENT ANALYST?

# 226 A:

I HEARD SOMETHING TO THAT EFFECT.

# 227 Q:

NOW, IN THE PRODUCTION OF THESE ORIGINAL DOCUMENTS WAS THERE NOT A DOCUMENT FOR WHICH YOU COULD NOT FIND AN ORIGINAL?

# 228 A:

IF YOU COULD SHOW IT TO ME, I --

# 229 (DISCUSSION HELD OFF THE RECORD BETWEEN DEPUTY DISTRICT ATTORNEY AND DEFENSE COUNSEL.)

# 230 MR. SCHECK:

YOUR HONOR, TO MY RECOLLECTION I THINK THE PROSECUTION MIGHT HAVE INTRODUCED A COPY OF THIS DOCUMENT, BUT JUST FOR THE SAKE OF CLARITY OF THE RECORD, I WILL ASK THAT THIS DOCUMENT BE MARKED DEFENDANT'S NEXT IN ORDER.

# 231 THE COURT:

1096.

# 232 (DEFT'S 1096 FOR ID = 1-PAGE DOCUMENT)

# 233 Q:

BY MR. SCHECK: DO YOU RECALL SEEING THIS DOCUMENT THAT HAS ON IT AN INDICATION THAT IT IS "L-16" OR LABORATORY PAGE NO. 16?

# 234 A:

YES.

# 235 Q:

YOU HAVE SEEN THIS --

# 236 MR. GOLDBERG:

YOUR HONOR, MAY WE APPROACH FOR A MOMENT?

# 237 THE COURT:

WITH REGARDS TO THIS DOCUMENT?

# 238 MR. GOLDBERG:

YES.

# 239 THE COURT:

ALL RIGHT. WITH THE COURT REPORTER, PLEASE.

Temperature

devastating

Key Quotes (5)

Barry Scheck (reading Fisher)

IT IS A CERTAINTY THAT WET OR DAMP BLOOD STAINS PACKAGED IN AIRTIGHT CONTAINERS SUCH AS PLASTIC BAGS WILL BE USELESS AS EVIDENCE IN A MATTER OF DAYS

Establishes the authoritative standard directly contradicting Fung's collection methods at Bundy

Barry Scheck

SO LET'S SEE. THAT WOULD BE SOMETHING ON THE ORDER OF SEVEN HOURS?

Forces Fung to confirm the wet blood swatches sat in plastic bags in a warm truck from ~11:30am to ~6:30pm

Barry Scheck

IS THAT YOUR INTERPRETATION OF TEMPORARY STORAGE?

Devastating rhetorical summary after Fung confirms the seven-hour figure — underscores how far his practice strayed from standards

The Witness (Fung)

IT WAS GETTING WARM.

Fung's reluctant admission that the truck was hot — directly relevant to accelerated degradation of blood evidence

The Witness (Fung)

IT HAS BEEN MY EXPERIENCE THAT AFTER SEVERAL HOURS THE REFRIGERATOR DOESN'T KICK ON ANY MORE.

Reveals Fung knew the crime scene truck's refrigerator was unreliable but used neither it nor alternative preservation methods

Evidence (3)

Informal

Barry Fisher's 'Techniques of Crime Scene Investigation' — passage on p. 227 regarding collection and preservation of blood stains

Read into record; Fung challenged on whether he followed its guidance

Defendant's 1095

LAPD Crime Scene Truck Checklist — 4-page document

Introduced; Fung denied having seen this specific form

Defendant's 1096

Lab page 16 / document marked 'L-16' — 1-page document apparently lacking an original

Introduced at end of session; sidebar called immediately after

Notable Exchanges (4)

Barry Scheck•Dennis Fung

Scheck reads Fisher's warning against storing wet blood in plastic, then walks through the timeline: swatches collected ~11:30am, stored in plastic in a warm truck, not removed until 6:30pm — approximately seven hours. Fung defends this as achieving his 'goal' of drying the blood by evening.

devastating

Barry Scheck•Dennis Fung

Scheck reveals the crime scene truck has a refrigerator Fung did not use; Fung explains it stops working after a few hours due to battery drain when the truck isn't running.

revealing

Barry Scheck•Dennis Fung

Scheck probes Fung's promotion from Criminalist 1 to 3, finding no oral or written exam questions on collection of biological samples, DNA preservation, or chain-of-custody record-keeping.

strategic

Barry Scheck•Hank Goldberg•Lance A. Ito

Repeated objections over the Fisher textbook — whether Fung read that edition, whether passages were being fairly characterized. The court ultimately allowed the content after Fung confirmed the material was consistent with what he'd read and relied upon.

procedural

Light Moments (1)

Barry Scheck

Scheck asks Fung whether the refrigerator in the crime scene truck is used to keep soft drinks.

Credibility Attacks (5)

⚔ Dennis Fung

Authoritative text impeachment

Scheck uses Fisher's 'Techniques of Crime Scene Investigation' — a textbook Fung acknowledged relying on — to show that storing wet blood in plastic bags is directly condemned by accepted forensic standards, contradicting Fung's claim that plastic is acceptable for 'intermediate' storage.

⚔ Dennis Fung

Timeline/factual concession

Scheck walks Fung through the timeline step-by-step until Fung confirms wet blood swatches sat in plastic bags in a warm truck for approximately seven hours — a damaging admission framed as Fung's 'interpretation of temporary storage.'

⚔ Dennis Fung

Equipment failure / professional negligence

Scheck elicits that the crime scene truck had a refrigerator Fung did not use, and that Fung knew it was unreliable, raising questions about whether proper preservation options were available but ignored.

⚔ Dennis Fung

Training gap exposure

Fung admits his professional examinations to advance as a criminalist contained no questions on collecting biological evidence for DNA testing or on chain-of-custody record-keeping — undermining his claimed expertise.

⚔ LAPD Crime Lab (institutional)

Missing original document

Scheck introduces Defendant's 1096, a document (Lab page 16) for which no original could be produced — suggesting records were lost, altered, or incomplete, setting up a chain-of-custody challenge.

Witness Demeanor

(NO AUDIBLE RESPONSE) — after Scheck reads Fisher's warning about improper collection making lab work 'sometimes impossible'

Witness asked Scheck to repeat the question multiple times; appeared to struggle tracking compound questions under sustained pressure

Objections

11 objections (7 sustained, 4 overruled)

Proceeding 5648 • 239 utterances • Prosecution witness

Criminal Trial

Department 103