📄 Motion: videotape evidence admission — Wednesday, April 12, 1995
Address:
C:\DEPT103\CRIMINAL\1995\APR\12\MOTION-VIDEOTAPE-EVIDENCE-ADMI.DOC
TRIAL
▲ Day 55 of 167

Motion: videotape evidence admission

Date: Wednesday, April 12, 1995 • Utterances: 131
Barry Scheck sought to use videotape footage — apparently news footage — showing Dennis Fung and Andrea Mazzola leaving the Rockingham crime scene on June 13th to impeach Fung's testimony about how he carried the blood vial. The prosecution objected on grounds of relevance and discovery violation (tapes not disclosed in advance), while Scheck argued impeachment material need not be pre-disclosed and requested an ex parte offer of proof to the judge alone. Judge Ito declined the ex parte showing but resolved the dispute by giving the prosecution overnight to review the tapes before allowing their use the following morning.
1 MR. SCHECK:

I THINK IT COULD BE DONE PRETTY -- I'M SORRY.

2 (AT 2:30 P.M. THE JURY EXITS THE COURTROOM AND THE FOLLOWING PROCEEDINGS WERE HELD IN OPEN COURT:)
3 THE COURT:

ALL RIGHT. THANK YOU, LADIES AND GENTLEMEN. ALL RIGHT. LET THE RECORD REFLECT THE JURORS HAVE WITHDRAWN FROM THE COURTROOM.

4 MS. CLARK:

YOUR HONOR, HOW MANY TIMES DOES THE COURT HAVE TO ADMONISH COUNSEL TO SHOW US THESE THINGS AHEAD OF TIME, YOU KNOW, AND THE GRANDSTANDING NATURE OF THESE PLOYS HAS BEEN MADE VERY APPARENT. THIS IS THE THIRD TIME IN FRONT OF THIS JURY HE HAS SPRUNG TAPE ON US WITHOUT TELLING US AHEAD OF TIME. THE COURT HAS REPEATEDLY ADMONISHED COUNSEL TO SHOW US AHEAD OF TIME AND REPEATEDLY HE HAS VIOLATED IT, AND ONCE AGAIN IN FRONT OF THE JURY.

5 THE COURT:

WELL, THE PROBLEM WE HAVE, THOUGH, IS THAT THIS IS IMPEACHMENT MATERIAL. LET ME SEE THE TAPE.

6 MR. SCHECK:

THIS TAPE IS TESTIMONY.

7 THE COURT:

IT IS IMPEACHMENT MATERIAL.

8 MR. SCHECK:

YES. I WILL SHOW --

9 THE COURT:

DO YOU WANT TO ARGUE ABOUT THIS WITH ME?

10 MR. COCHRAN:

NO, NO, YOUR HONOR.

11 MR. SCHECK:

I WILL SHOW THE TAPE.

12 THE COURT:

SHOW ME THE TAPE.

13 MR. SCHECK:

YES.

14 (AT 2:31 P.M. A VIDEOTAPE WAS PLAYED.)
15 MS. CLARK:

THAT IS RIDICULOUS, AND I'M SORRY, BUT THE FACT THAT THIS IS IMPEACHMENT --

16 THE COURT:

MISS CLARK, ARE YOU HANDLING THIS WITNESS?

17 MS. CLARK:

NO, YOUR HONOR, I'M JUST HELPING MR. GOLDBERG, BUT I'M ADDRESSING -- I AM NOT ADDRESSING AN ISSUE WITH THE WITNESS. I'M ADDRESSING AN ISSUE WITH COUNSEL'S BEHAVIOR IN FRONT OF THE COURT.

18 THE COURT:

COUNSEL, WE WILL TAKE THAT UP LATER. MR. GOLDBERG, ANY COMMENT?

19 MR. GOLDBERG:

YOUR HONOR, I DON'T FEEL THIS IS PROPER IMPEACHMENT BECAUSE IT IS NOT INCONSISTENT AND ALSO --

20 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)
21 MR. GOLDBERG:

AND ALSO -- WELL, FOR TACTICAL REASONS, WE DON'T WANT TO OBJECT TO IT.

22 MS. CLARK:

AND THAT IS GIVEN COUNSEL'S CONDUCT, YOUR HONOR, AND THAT IS WHAT I'M TALKING ABOUT.

23 THE COURT:

MISS CLARK, DIDN'T I JUST SAY WE WILL ADDRESS THIS LATER? THAT MEANS END OF ARGUMENT. I DON'T WANT TO HEAR ANY MORE. I'M TIRED OF THIS. ALL RIGHT. FOUR O'CLOCK WE WILL TAKE IT UP.

24 MS. CLARK:

IS THERE GOING TO BE ANY MORE VIDEOTAPE?

25 MR. SCHECK:

YES.

26 MS. CLARK:

COULD WE INQUIRE?

27 MR. SCHECK:

YES, I HAVE SOME MORE VIDEOTAPE THAT JUST CAME IN, AND IF SHE WANTS TO SEE IT --

28 THE COURT:

LET'S SEE IT NOW.

29 MR. SCHECK:

CAN THE WITNESS LEAVE THE ROOM?

30 THE COURT:

YES.

31 (MR. FUNG EXITS THE COURTROOM.)
32 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
33 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)
34 THE COURT:

MR. HARRIS.

35 (A VIDEOTAPE WAS PLAYED.)
36 MR. SCHECK:

ONE TAPE I'M GOING TO SHOW THE WITNESS, YOUR HONOR, IS A VIDEOTAPE OF HE AND MISS MAZZOLA, WHAT I BELIEVE DEPICTS THEM LEAVING THE ROCKINGHAM LOCATION ON THE AFTERNOON OF JUNE 13TH. THERE IS AN AUDIO PORTION TO THIS THAT I WOULD LIKE TO HAVE PLAYED AS WELL.

37 (THE VIDEOTAPE CONTINUES PLAYING.)
38 MR. SCHECK:

OKAY. WHAT I HEAR ON THAT TAPE IS MR. FUNG SAYING TO THE WITNESS "LET'S GO BACK FOR ONE LAST CHECK." THEN WE HAVE ANOTHER TAPE.

39 MS. CLARK:

WHERE DID YOU HEAR THAT?

40 THE COURT:

LET ME HEAR THAT AGAIN, AND MISS FITZPATRICK, CAN YOU CRANK IT UP?

41 (THE VIDEOTAPE WAS AGAIN PLAYED.)
42 MR. SCHECK:

THAT IS ONE.

43 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)
44 MR. SCHECK:

YOUR HONOR, I WILL REPRESENT TO YOU THAT THIS IS ANOTHER VERSION OF THE TAPE, BUT WE ARE FAST FORWARDING TO ANOTHER SECTION. WHEN MR. SHAPIRO WAS CROSS-EXAMINING DETECTIVE VANNATTER, I WAS BACK IN MY HOTEL ROOM WHEN I HAPPENED TO SEE THIS TAPE.

45 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
46 MR. SCHECK:

NO, NO. NO, NO, NO. GO BACK.

47 (BRIEF PAUSE.)
48 MR. SCHECK:

GO BACK TO THE BEGINNING OF THIS. GO BACK TO THE BEGINNING OF THIS.

49 (BRIEF PAUSE.)
50 MR. SCHECK:

OKAY. WE PROPOSE TO PLAY THE PORTION OF THE TAPE THAT -- NOT THE AUDIO.

51 (A VIDEOTAPE WAS PLAYED.)
52 MR. SCHECK:

THIS IS ANOTHER SHOT OF MR. FUNG AND MISS MAZZOLA LEAVING ON THE AFTERNOON OF JUNE 13TH. OKAY. WE PROPOSE TO SHOW THEM THOSE TWO SEGMENTS.

53 THE COURT:

MR. GOLDBERG.

54 MR. GOLDBERG:

I DON'T KNOW WHAT THE RELEVANCE IS. COUNSEL WILL HAVE TO MAKE AN OFFER OF PROOF. BUT FURTHERMORE, THERE IS NO SHOWING HERE AS TO WHY THIS WASN'T PROVIDED IN DISCOVERY. I MEAN, WE HAVE ANOTHER DISCOVERY VIOLATION. MR. SCHECK MADE SOME KIND OF A STRANGE COMMENT ABOUT HAVING VIEWED IT OR SEEN IT IN HIS HOTEL ROOM AT SOME POINT. I DON'T KNOW HOW THAT GETS AROUND THE DISCOVERY OBLIGATIONS OF THE DEFENSE.

55 MR. SCHECK:

IT IS IMPEACHMENT.

56 (DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.)
57 MR. SCHECK:

I WASN'T GOING TO SHOW THEM THIS TAPE, YOUR HONOR, UNTIL I HEARD WHAT MR. FUNG HAD TO SAY ABOUT HOW HE CARRIED THIS BLOOD VIAL OUT THERE, UNTIL HE WAS NAILED DOWN. NOW I'M GOING TO SHOW HIM THE TAPES.

KEY QUOTE
58 THE COURT:

ALL RIGHT. REFRESH MY RECOLLECTION. WHAT SPECIFICALLY DID HE SAY? HE SAID IT WAS HANDED TO HIM IN A GRAY ENVELOPE AND THAT HE DIDN'T RECOLLECT SPECIFICALLY HOW IT WAS HE CARRIED IT OUT.

59 MR. SCHECK:

HE HAS HAD THREE POSSIBLE WAYS THAT HE COULD HAVE CARRIED IT OUT: IN A PAPER BAG, IN HIS POSSE BOX OR IN HIS HAND.

60 THE COURT:

OKAY. I SAW HIM CARRYING A CATALOGUE CASE AND A HANDFUL OF PAPER BAGS.

61 MR. SCHECK:

YOUR HONOR, BEFORE I -- I WOULD LIKE TO MAKE THE REST OF THIS OFFER OF PROOF EX PARTE TO YOU. I DON'T WANT TO TELL THEM. I THINK I AM ENTITLED TO THAT.

62 THE COURT:

WELL, COUNSEL, YOU HAVE JUST SHOWN US -- YOU HAVE SHOWN ME A PIECE OF VIDEOTAPE. YOU HAVE TO TELL ME WHY IT IS RELEVANT.

63 MR. SCHECK:

WELL, WHY IT IS RELEVANT IS THAT I BELIEVE THAT IF I SHOW THESE PIECES OF VIDEOTAPE TO MR. FUNG AND TAKE HIM THROUGH REFRESHING HIS RECOLLECTION LOOKING AT THAT AND TAKE HIM THROUGH THE EVENTS, THAT IN COMBINATION OF THE TESTIMONY OF MISS MAZZOLA THAT THE COURT HAS PREVIOUSLY HEARD THAT IS ON THE RECORD, I THINK WE CAN ESTABLISH THAT WHAT HE HAS TOLD US ABOUT CARRYING OUT THAT BLOOD VIAL AND HOW HE CARRIED IT IS NOT TRUE.

64 THE COURT:

AND HOW DO WE DO THAT FROM THOSE TWO PIECES OF VIDEOTAPE?

65 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
66 MR. SCHECK:

YOUR HONOR, I WOULD AGAIN REQUEST THAT YOU PERMIT ME TO TELL YOU EX PARTE AND MAKE A RECORD OF IT AND I WILL CONNECT THIS UP FOR YOU AND SHOW THE PLAIN RELEVANCE OF IT. UMM, I DO NOT WANT TO DISCLOSE THAT IN FRONT OF THESE PROSECUTORS WHO ARE GOING TO TALK TO THIS WITNESS OR SUBSEQUENT WITNESSES.

67 THE COURT:

THE WITNESS -- OBVIOUSLY ONCE YOU DO IT NOW THE CAT WILL BE OUT OF THE BAG, SO TO SPEAK. MR. FUNG IS OUTSIDE OF THE COURTROOM. HE IS NOT HEARING THIS INFORMATION.

68 MR. SCHECK:

THERE IS MORE TO IT. THERE ARE OTHER WITNESSES AND THERE ARE OTHER EVENTS AND THERE IS OTHER REASONS WHY THESE TAPES ARE CLEARLY IMPEACHING, AND I DON'T WANT TO TELL -- SAY IT IN FRONT OF THEM. I THINK I AM ENTITLED TO MAKE THIS OFFER TO YOU EX PARTE.

69 THE COURT:

WHAT IS YOUR AUTHORITY FOR THAT?

70 MR. SCHECK:

WELL, I THINK IT IS IMPEACHMENT MATERIAL AND I DON'T THINK I SHOULD BE REQUIRED, UNDER THE DISCOVERY RULES, TO REVEAL THE IMPEACHMENT MATERIAL BEFORE IMPEACHING THE WITNESS.

71 THE COURT:

NO, BUT I HAVE TO MAKE A RULING AS TO RELEVANCE AND WHETHER OR NOT IT IS GOING TO COME IN, WHETHER OR NOT IT IS COLLATERAL, WHETHER OR NOT THERE IS A 352 PROBLEM. WHAT IS YOUR AUTHORITY THAT YOU ARE ENTITLED TO AN EX PARTE SHOWING?

72 MR. SCHECK:

WELL, MY --

73 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
74 MR. SCHECK:

I AM INFORMED THAT THE EXACT RULE IN THIS JURISDICTION IS 1054.7 AND IF I AM PERMITTED TO MAKE A SHOWING UNDER 1054.7 I THINK I WILL BE ABLE TO CONNECT IT UP WITH THE COURT AND INDICATE TO YOU --

75 THE COURT:

NO. THAT DOESN'T GO TO OFFERS OF PROOF REGARDING IMPEACHMENT. THAT IS A DISCOVERY RULE.

76 MR. SCHECK:

YOUR HONOR, I AM IN A DILEMMA HERE.

77 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
78 MR. SCHECK:

YOUR HONOR, WHAT I WOULD LIKE TO DO WITH THE WITNESS IS SHOW HIM THESE TWO SEGMENTS THAT DEPICT HIM AND MISS MAZZOLA LEAVING ROCKINGHAM IN THE AFTERNOON AND ASK HIM WHICH CAME FIRST AND WHICH CAME SECOND TO LAY A FOUNDATION FOR FURTHER IMPEACHMENT. AND IF THE COURT WANTS TO KNOW BEYOND THAT WHAT THAT IMPEACHMENT IS, I WOULD REQUEST THE OPPORTUNITY TO TELL YOU VERY BRIEFLY WHAT IT IS AT SIDE BAR. THIS INVOLVES TESTIMONY OF ANOTHER WITNESS WE HAVEN'T IMPEACHED YET.

79 THE COURT:

ALL RIGHT. MR. GOLDBERG.

80 MR. GOLDBERG:

YOUR HONOR, WE HAVE MADE AN OBJECTION THAT IT IS NOT LOGICALLY RELEVANT. THAT IS NO. 1. WE ARE ENTITLED TO BE HEARD ON THAT OBJECTION. COUNSEL IS ENTITLED TO MAKE AN OFFER OF PROOF IF HE SO CHOOSES OR NOT IF HE SO CHOOSES, BUT WE ARE ENTITLED TO BE HEARD ON HIS OFFER OF PROOF AND FULLY LITIGATE THE ISSUE OF THIS TAPE'S ADMISSIBILITY. THE PEOPLE DO HAVE A RIGHT TO A FAIR TRIAL, TOO, AND WE ALSO HAVE THE RIGHT TO BE HEARD. WE HAVE THE RIGHT TO BE HEARD ON THIS ISSUE. AND THERE ARE ONLY A VERY LIMITED NUMBER OF EXCEPTIONS IN OUR STATE FOR IN CAMERA HEARINGS. THERE ARE IN CAMERA HEARINGS FOR MARSDEN MOTIONS, FOR CERTAIN DISCOVERY ISSUES UNDER 1054.7, FOR SOMETHING THAT IS WORK PRODUCT THERE WOULD BE AN IN CAMERA HEARING, BUT THIS DOESN'T FALL UNDER ANY OF THE KNOWN EXCEPTIONS. THE SECOND OBJECTION THAT WE HAVE IS WE HAVE AN OBJECTION ON THE ISSUE OF DISCOVERY, AND I KNOW WE HAVE GONE OVER AND OVER THIS, YOUR HONOR, AND WE HAVE TALKED ABOUT THAT FAMOUS IZAZAGA FOOTNOTE, I THINK IT WAS 5. PROBABLY THE COURT REMEMBERS. IT TALKS ABOUT THE OBLIGATION TO TURN OVER OR NOT TO TURN OVER IMPEACHMENT MATERIAL AND IT IS MY UNDERSTANDING THAT IF THE DEFENSE HAD GONE OUT AND TALKED TO MR. FUNG AND GOTTEN AN INCONSISTENT STATEMENT FROM HIM, THEY DON'T HAVE TO TURN THAT OVER TO US. IF THEY INTENDED TO CALL THEIR INVESTIGATOR AS A WITNESS, THEY WOULD PROBABLY HAVE TO PUT THAT INVESTIGATOR ON THE WITNESS LIST. BUT THIS IS NOT THE TYPE OF IMPEACHMENT MATERIAL THAT IS DESCRIBED IN THAT FOOTNOTE TO IZAZAGA. WE ARE ENTITLED TO IT. IT IS A TAPE, IT IS A PIECE OF REAL EVIDENCE AND WE ARE ENTITLED TO HAVE IT.

81 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
82 THE COURT:

MR. SCHECK.

83 MR. SCHECK:

WELL --

84 THE COURT:

WELL, LET ME ASK ONE MORE FURTHER QUESTION. MR. GOLDBERG, LET'S ASSUME THAT YOU ARE ENTITLED TO HAVE IT. LET'S ASSUME I AGREE THAT YOU ARE ENTITLED, SINCE A VIDEOTAPE WOULD BE CONSIDERED REAL EVIDENCE.

85 MR. GOLDBERG:

THE ONLY REPRESENTATION THAT WE HAVE FROM COUNSEL AS TO HOW THIS VIDEOTAPE CAME INTO BEING OR INTO THEIR POSSESSION IS THAT HE WAS WATCHING TELEVISION, I GUESS, OR LOOKING AT THE VIDEOS IN HIS HOTEL ROOM AND SAW IT. I MEAN, WE HAVE NOTHING IN THE WAY OF ANY KIND OF --

86 THE COURT:

NO. LET'S ASSUME FOR THE SAKE OF THIS ARGUMENT I AGREE WITH YOU THAT IT IS REAL EVIDENCE, THAT A VIDEOTAPE IS, QUOTE-UNQUOTE, REAL EVIDENCE, NOT A WITNESS STATEMENT, PER SE, IN THIS CONTEXT, WHERE IT IS SIMILAR TO A PICTURE, BECAUSE IT DEPICTS ACTIONS BY MR. FUNG AND MISS MAZZOLA AT ROCKINGHAM APPARENTLY ON JUNE 13TH. APPARENTLY. IT COULD HAVE BEEN THE 28TH. I DON'T KNOW.

87 MR. GOLDBERG:

AND IS THE COURT'S QUESTION ASSUMING THAT THERE IS A DISCOVERY VIOLATION, WHAT IS THE REMEDY OR --

88 THE COURT:

NO. WHAT ARE YOU ASKING FOR?

89 MR. GOLDBERG:

WELL, THAT IT NOT BE USED AT THIS POINT. I MEAN, THAT WE HAVE THE TAPE PROVIDED TO US, THAT WE HAVE AN OPPORTUNITY TO DETERMINE FOR SURE WHAT DATE THIS OCCURRED ON, WHETHER THERE ARE ANY OTHER SEQUENCES ON THE TAPE THAT WOULD INDICATE WHEN IN A CHRONOLOGICAL SEQUENCE THE EVENTS DEPICTED THEREON APPEARED. THAT IS WHY WE HAVE A DISCOVERY STATUTE. I'M NOT SAYING THAT THE TAPE WOULD NECESSARILY BE PRECLUDED, BECAUSE WE KNOW THAT PRECLUSION IS USUALLY A REMEDY OF LAST RESORT FOR THE COURT AND IS SOMETHING THAT WE CAN RARELY LEGITIMATELY ASK FOR.

90 THE COURT:

WHAT IS YOUR OBJECTION TO MR. SCHECK SHOWING MR. FUNG THESE TWO VIDEOTAPE ITEMS AND ASKING WHICH OCCURRED FIRST, WALKING OUT WITH YOUR CATALOGUE CASE OR WALKING OUT EMPTY-HANDED?

91 MR. GOLDBERG:

WHAT IS THE RELEVANCE? THAT IS OUR FIRST OBJECTION. AND THE SECOND OBJECTION WAS AN OBJECTION ON THE DISCOVERY STATUTE, AND JUST TO BRIEFLY RESTATE, WE WERE SAYING THAT WE ARE ENTITLED TO BE HEARD AS TO THAT FIRST OBJECTION, RELEVANCE.

92 THE COURT:

ALL RIGHT.

93 MR. SCHECK:

IN TERMS OF THE RELEVANCE, I REALLY WANT TO DETERMINE FROM THE WITNESS WHICH HAPPENED FIRST.

IN EXAMINING THE TAPES I'VE TRIED TO RECONSTRUCT IT BASED ON WHAT I SEE AND BASED ON WHAT MY UNDERSTANDINGS OF THE EVIDENCE IS, BUT I WON'T KNOW UNTIL THE WITNESS TELLS ME, AND I WANT TO REVIEW THIS WITH HIM TO TRY TO DO THE BEST I CAN TO RECONSTRUCT THE EVENTS OF THAT DAY AND TO PROBE WHETHER OR NOT HE REALLY RECEIVED A BLOOD VIAL ON THE AFTERNOON OF JUNE 13TH. THAT IS WHERE I'M GOING WITH THIS. I THINK I SHOULD BE ENTITLED TO SHOW THOSE TAPES TO THE WITNESS, INQUIRE OF HIM WHICH HAPPENED FIRST, WHICH HAPPENED SECOND, AND THEN CONDUCT FURTHER INQUIRY AS TO WHETHER OR NOT THESE TAPES ARE -- AND FURTHER EXPLORE THE CREDIBILITY OF HIS ANSWERS.

94 THE COURT:

ALL RIGHT. WHAT ABOUT OUR DISCOVERY PROBLEM THAT THE PROSECUTION HASN'T SEEN THIS AND I AGREE THAT IT IS PROBABLY REAL EVIDENCE?

95 MR. SCHECK:

WELL, YOUR HONOR, IT IS MY UNDERSTANDING THAT I WOULD BE ALLOWED TO WITHHOLD THIS AS IMPEACHMENT MATERIAL. THAT IS MY UNDERSTANDING.

96 (DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.)
97 MR. SCHECK:

AND THESE SEQUENCES ARE ON THE EARLIER TAPES, BUT FROM DIFFERENT ANGLES, AND IN FACT --

98 THE COURT:

WHEN DID YOU GET THESE ITEMS?

99 MR. SCHECK:

WELL, I ACTUALLY GOT THIS ITEM ABOUT A WEEK AGO.

100 THE COURT:

WHICH ITEM?

101 MR. SCHECK:

THE LAST -- THE SECOND TAPE THAT SHOWED MR. FUNG WALKING OUT EMPTY-HANDED AND MISS MAZZOLA WITH THE TRASH BAG, AND I HAD RECALLED SEEING SOMETHING ON THE TELEVISION. AND WHEN WE REVIEWED THIS TAPE WE DIDN'T REVIEW IT TO THE VERY END AND WE DIDN'T SEE IT, FRANKLY, UNTIL LAST NIGHT, THAT THE FULL SEGMENT WAS THERE. WE HAVE MADE EFFORTS TO OBTAIN ANOTHER TAPE THAT WE THINK HAS EVEN MORE OF THIS FOOTAGE, AND I HAVE NOT YET VIEWED THAT TAPE, BUT I UNDERSTAND THAT WE ARE MAKING EFFORTS TO FIND IT, SO WE ARE TRYING TO GET ALL THE FOOTAGE WE CAN OF WHAT HAPPENED AND I'M TRYING TO SHOW THE WITNESS THE BEST I COULD.

102 THE COURT:

WHEN DID YOU GET THESE ITEMS?

103 MR. SCHECK:

WHICH ITEMS?

104 THE COURT:

THIS LAST TAPE.

105 MR. SCHECK:

WELL, THIS LAST TAPE --

106 THE COURT:

WHICH WAS ACTUALLY THE FIRST TAPE.

107 MR. SCHECK:

THE FIRST TAPE HAS BEEN -- I THINK THE PROSECUTION HAS THAT, THE ONE OF THEM INITIALLY COMING OUT. I THINK IT HAS BEEN SEEN BEFORE.

108 THE COURT:

WHAT WE ASSUME IS INITIALLY COMING OUT WITH THE CATALOGUE CASE, CORRECT?

109 MR. SCHECK:

I DON'T KNOW UNTIL I ASK HIM WHICH HAPPENED FIRST AND WHICH HAPPENED SECOND. I HAVE A SUSPICION BASED ON HIS TESTIMONY.

110 THE COURT:

ALL RIGHT. MR. GOLDBERG, DO YOU HAVE THAT FIRST SEGMENT?

111 MR. GOLDBERG:

YOUR HONOR, I HAVE SEEN SEGMENTS LIKE THIS, BUT I DON'T THINK I HAVE SEEN THIS SEGMENT. AND THE PROBLEM THAT I HAVE WITH COUNSEL'S REPRESENTATION, AND I'M NOT TRYING TO SAY THIS AS ANY KIND OF AN INSULT OR PERJORATIVELY, IS THAT WHEN THEY REPRESENTED TO US THAT WE HAD THE VIDEOTAPE DEPICTING WHAT THEY CLAIM TO BE THE ENVELOPE, APPARENTLY WE DO NOT HAVE THAT, THE ENVELOPE THAT WAS SUPPOSEDLY PASSED TO MR. FUNG. AND MR. FAIRTLOUGH DID A VERY EXTENSIVE REVIEW OF OUR TAPES LAST NIGHT AND SAYS HE DOES NOT FIND THEM, AND I PROVIDED HIM WITH THE COUNTER ON THAT ITEM, AND WE JUST DON'T HAVE IT, SO I DON'T THINK THAT WE CAN -- I CAN BE COMFORTABLE THAT WE HAVE THIS SIMPLY BECAUSE COUNSEL HAS REPRESENTED THAT WE DO.

112 MR. SCHECK:

I -- AS FAR AS THE LAST THING THAT MR. GOLDBERG SAID, I AM INFORMED BY MR. BLASIER, WHO WAS THE ONE THAT WAS DEALING WITH THIS AT THE BEGINNING OF THE TRIAL, THAT THE SEGMENTS CONCERNING THE ENVELOPE AND THE GLOVE THAT THIS WITNESS WAS CONFRONTED WITH ARE ON THAT KCBS TAPE, AS WE INFORMED THEM YESTERDAY, THAT I THINK IS IN EVIDENCE, SO I THINK THAT --

113 THE COURT:

THAT IS ANOTHER ISSUE.

114 MR. SCHECK:

WELL, HE RAISED IT. YOUR HONOR, LOOKING AT THE TAPE, WE DID RECEIVE THIS PARTICULAR TAPE WHICH DEPICTS VANNATTER TESTIFYING AND FUNG -- MR. FUNG AND MISS MAZZOLA WALKING OUT ON APRIL 5TH, BUT WE ONLY SAW THE FIRST SEGMENT. AND LAST NIGHT WHEN WE RAN IT TO THE VERY END, I SAW THE FULL SEGMENT, WHICH I DID RECALL SEEING WHEN MR. VANNATTER WAS TESTIFYING, BUT WE COULDN'T LOCATE IT IN ITS ENTIRETY.

115 THE COURT:

WE WILL DO THIS: I AM GOING TO ALLOW THE PROSECUTION OVERNIGHT, SINCE WE ARE GOING TO BREAK WITH THE JURY TODAY AT FOUR O'CLOCK, AND ALLOW THEM OVERNIGHT TO REVIEW THESE TAPED SEGMENTS TO SEE IF THERE IS ANY PREJUDICE TO THEM IN THE DISCLOSURE AT THIS POINT. MR. SCHECK, I WOULD IMAGINE YOU HAVE ENOUGH TO GO ON AND FILL THE AFTERNOON.

116 MR. SCHECK:

WELL, ACTUALLY, UMM, TO BE FRANK, YOUR HONOR, THIS WAS --

117 THE COURT:

THIS IS IT?

118 MR. SCHECK:

THIS IS -- THE ISSUE OF THE TURN OVER OF THIS BLOOD VIAL IS THE LAST LINE OF CROSS-EXAMINATION THAT I HAVE, UMM, AND I MUST SAY, YOUR HONOR, UNTIL I KNOW EXACTLY WHAT THE WITNESS SAYS WITH RESPECT TO THESE TAPES AND WHICH SEGMENT IS FIRST AND WHICH SEGMENT IS SECOND, I WON'T BE ABLE TO PROCEED TO THE VERY END BECAUSE IT IS DEPENDENT ON HIS ANSWERS.

119 THE COURT:

ALL RIGHT. MR. GOLDBERG, DOES THAT SOUND ACCEPTABLE TO YOU, YOU HAVE SOME OPPORTUNITY TO REVIEW THE TAPES, COMPARE THEM WITH WHAT YOU HAVE AND WE WILL PROCEED TOMORROW MORNING CONTINUING WITH MR. FUNG?

120 MR. GOLDBERG:

THAT SOUNDS LIKE IT WOULD BE ACCEPTABLE, YOUR HONOR. MAY I JUST HAVE A MOMENT?

121 (BRIEF PAUSE.)
122 THE COURT:

IT IS NOT LIKE I DON'T HAVE OTHER THINGS TO DO THIS AFTERNOON.

KEY QUOTE
123 MR. GOLDBERG:

YOUR HONOR, THERE ARE A COUPLE OTHER LEGAL ISSUES THAT I DID WANT AN OPPORTUNITY TO ADDRESS. ONE WAS AS TO THE TAPE THAT I JUST MENTIONED AND THE OTHER WAS AS TO THE PHENOLPHTHALEIN ISSUE WHICH I THINK NEEDS TO BE REVISITED IN LIGHT OF THE TESTIMONY. I DON'T KNOW WHETHER THE COURT WOULD LIKE TO DO THAT NOW OR AT SOME LATER POINT.

124 THE COURT:

ALL RIGHT. MY INCLINATION WOULD BE TO RECESS AS FAR AS THE JURY IS CONCERNED RIGHT NOW, COME BACK IN FIFTEEN MINUTES AND DISCUSS THESE OTHER LEGAL ISSUES AND COMMENCE OUR OTHER HEARING -- COMMENCE OUR OTHER HEARING AT FOUR O'CLOCK. AND I ANTICIPATE BEING IN SESSION UNTIL ABOUT 6:00 ON THAT, SO WE STILL HAVE A FULL DAY AHEAD OF US.

125 MR. SCHECK:

MAY I MAKE ONE QUICK REQUEST THAT MAY SAVE SOME TIME?

126 THE COURT:

SURE.

127 MR. SCHECK:

MAY I ASK PERMISSION TO BRING THE WITNESS BACK BEFORE WE BREAK AND SIMPLY INQUIRE OF HIM, WITHOUT SHOWING ANY VIDEOTAPES, JUST AS TO A VERBAL DESCRIPTION, IF HE RECALLS THE EVENTS AND WHICH HAPPENED FIRST?

128 THE COURT:

ALL RIGHT. THAT SEEMS REASONABLE, WITHOUT THE DISPLAY OF THE VIDEOTAPE. ALL RIGHT. THE COURT REPORTER NEEDS FIVE MINUTES. DON'T GO AWAY.

129 (BRIEF PAUSE.)
130 MS. CLARK:

YOUR HONOR, SO THAT THE COURT IS AWARE, WE HAVE WITHDRAWN OUR OBJECTION TO SHOWING THE TAPE, THE DIRECT TESTIMONY OF THE WITNESS, SO WE SHOULD RECOMMENCE WITH THAT.

131 THE COURT:

ALL RIGHT. LET ME CHANGE -- GIVE THE COURT REPORTER A BREAK. ALL RIGHT. LET'S TAKE FIVE MINUTES -- WELL, WE ARE SO CLOSE, LET'S JUST TAKE OUR 15 AT THIS POINT.

Temperature

tense

Key Quotes (5)

Marcia Clark
THIS IS THE THIRD TIME IN FRONT OF THIS JURY HE HAS SPRUNG TAPE ON US WITHOUT TELLING US AHEAD OF TIME. THE COURT HAS REPEATEDLY ADMONISHED COUNSEL TO SHOW US AHEAD OF TIME AND REPEATEDLY HE HAS VIOLATED IT.
Clark frames Scheck's tactic as a pattern of deliberate grandstanding and discovery abuse, not mere oversight.
Barry Scheck
I WASN'T GOING TO SHOW THEM THIS TAPE, YOUR HONOR, UNTIL I HEARD WHAT MR. FUNG HAD TO SAY ABOUT HOW HE CARRIED THIS BLOOD VIAL OUT THERE, UNTIL HE WAS NAILED DOWN. NOW I'M GOING TO SHOW HIM THE TAPES.
Scheck reveals the strategic logic: lock in the witness's testimony first, then spring contradicting video — a classic impeachment trap.
Barry Scheck
I THINK WE CAN ESTABLISH THAT WHAT HE HAS TOLD US ABOUT CARRYING OUT THAT BLOOD VIAL AND HOW HE CARRIED IT IS NOT TRUE.
Explicit statement of the defense theory: the video will show Fung's account of handling the blood vial is fabricated.
Lance A. Ito
IT IS NOT LIKE I DON'T HAVE OTHER THINGS TO DO THIS AFTERNOON.
Rare moment of judicial exasperation, revealing Ito's frustration with the pace and procedural maneuvering.
Hank Goldberg
THE PEOPLE DO HAVE A RIGHT TO A FAIR TRIAL, TOO, AND WE ALSO HAVE THE RIGHT TO BE HEARD.
Prosecution's core objection to an ex parte proceeding — they cannot respond to an offer of proof they cannot hear.

Evidence (3)

Informal
Videotape showing Dennis Fung and Andrea Mazzola leaving Rockingham on the afternoon of June 13th — one segment with catalogue case, one with Fung empty-handed and Mazzola carrying a trash bag
Played for judge (jury excluded); admissibility argued; use deferred to next morning pending prosecution review
Informal
KCBS news tape previously referenced, said to contain footage of envelope/glove exchange with Fung
Referenced by Scheck as already in evidence; disputed by Goldberg who said his team could not locate the relevant segment
Informal
Blood vial allegedly received by Fung in a gray envelope on afternoon of June 13th
Central subject of impeachment — Scheck argues video contradicts Fung's account of how he received and carried it

Notable Exchanges (3)

Barry ScheckLance A. Ito
Scheck requested an ex parte showing of his offer of proof so prosecutors could not learn his impeachment strategy for future witnesses. Ito pushed back, demanding legal authority for the procedure. Scheck cited CPC 1054.7; Ito rejected it as inapplicable to offers of proof on relevance.
strategic/adversarial
Marcia ClarkLance A. Ito
Clark interrupted repeatedly to complain about Scheck's conduct; Ito twice shut her down mid-sentence, reminding her she was not handling the witness and ordering her to stop.
heated
Hank GoldbergLance A. Ito
Goldberg argued the prosecution could not fairly litigate tape admissibility without hearing the defense's offer of proof, and that there is no recognized exception for in camera impeachment hearings. Ito walked him through a hypothetical to probe what remedy the prosecution actually wanted.
procedural

Light Moments (1)

Lance A. Ito
Ito drily noting 'IT IS NOT LIKE I DON'T HAVE OTHER THINGS TO DO THIS AFTERNOON' while waiting for Goldberg to consult with colleagues.

Credibility Attacks (1)

⚔ Dennis Fung
videotape impeachment / prior inconsistent conduct
Scheck sought to show Fung video of himself leaving Rockingham on June 13th to contradict his testimony about how he received and physically carried the blood vial — specifically whether he had his hands free or was carrying a catalogue case or paper bags at the relevant time.

Witness Demeanor

(AT 2:30 P.M. THE JURY EXITS THE COURTROOM)
(MR. FUNG EXITS THE COURTROOM.)
(BRIEF PAUSE.) [multiple instances]
(DISCUSSION HELD OFF THE RECORD BETWEEN DEFENSE COUNSEL.) [multiple instances]
(DISCUSSION HELD OFF THE RECORD BETWEEN THE DEPUTY DISTRICT ATTORNEYS.) [multiple instances]
(A VIDEOTAPE WAS PLAYED.) [multiple instances]

Objections

4 objections (0 sustained, 0 overruled)
Proceeding 5666 • 131 utterances
Criminal Trial
Department 103
⚖️ Start
📂 APR 12, 1995 📄 Motion: videotape evidence adm
APR 12, 1995 KRT DvH TD